author: CARLTON, J„

text:
    In the Matter of the ESTATE OF Darryl NECAISE Sr., Deceased: Lawrence Covington, Appellant v. Shelia McDaniel, Appellee. Lawrence Covington, Appellant v. Estate of Darryl Wayne Necaise Sr., Appellee. In the Matter of the Estate of Darryl Necaise Sr., Deceased: Lawrence Covington, Appellant v. Shelia McDaniel, Appellee.
    Nos. 2011-CA-00094-COA, 2011-CA-01363-COA, 2011-CA-01581-COA.
    Court of Appeals of Mississippi.
    March 12, 2013.
    Rehearing Denied Aug. 27, 2013.
    Certiorari Denied Nov. 21, 2013.

      Carlos Eugene Moore, Tangala Laniece Hollis, Grenada, attorneys for appellant.
    Sabrina D. Howell, Grenada, A.E. (Rusty) Harlow Jr., attorneys for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J„

for the Court:

¶ 1. This consolidated appeal from three separate judgments first involves a dismissal of a tort claim filed in the Yalobu-sha County Circuit Court by Lawrence Covington against an estate in probate. Covington filed his claim as an alleged creditor with a judgment against the potential heirs of the estate of Darryl Wayne Necaise Sr. (the “Estate”). This appeal also involves the dismissal of Covington’s claim filed in the Yalobusha County Chancery Court against Shelia McDaniel, the executor and sole heir to the Estate. A 2007 tort action against Darryl Sr. and his heirs served as the basis of Covington’s claims against the Estate. In 2009, Cov-ington amended his claims in the 2007 tort action to obtain a judgment against the Estate, and he filed a new tort action against the Estate. The record reflects that Covington, however, failed to obtain such a judgment, or status as a creditor of the Estate, since the statute of limitations had expired and the action was not properly served upon the Estate or Darryl Sr. during his lifetime. Ultimately, this case addresses whether a judgment creditor of the potential heirs of an estate constitutes a creditor of the estate.

¶ 2. In his appeal from the circuit court, case number 2011-CA-01363, Covington raises the following assignments of error: whether the circuit court erred in granting (1) the Estate’s motion to dismiss his 2009 tort action; and (2) the Estate’s request for payment of attorney’s fees.

¶ 3. In his first appeal from the chancery court, case number 2011-CA-00094, Cov-ington argues that the chancery court erred in denying his (1) motion for reconsideration or a new hearing; (2) motions for relief from an order and for Mississippi Rule of Civil Procedure 11 sanctions; (3) motions for joinder in the petition to strike the will admitted to probate, for removal of the executor, and for admission of Darryl Sr.’s will to probate or, alternatively, a separate petition of Covington for the same relief; (4) motion and amended motion for a declaratory judgment; and (5) motion to compel an inventory, appraisal, and bond of the executor or administrator of the Estate.

¶ 4. Finally, in his second appeal from the chancery court, case number 2011-CA-01581, Covington argues: (1) the chancery court erred in granting McDaniel’s motion for Rule 11 sanctions; and (2) the chancery court erred in denying his motion for reconsideration.

¶ 5. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 6. Because this consolidated appeal involves separate actions, one from the circuit court and the others from the chancery court, for purposes of clarity, we have separated the proceedings accordingly in our statement of the facts and procedural history.

Chancery Court Probate Proceedings

¶ 7. Darryl Sr., the decedent, married Linda Necaise in 1967. After several years, the two divorced, and a property-settlement agreement was incorporated into the divorce decree. A final judgment of divorce was entered on February 28, 2007.

¶ 8. On September 15, 2006, Darryl Sr. executed a last will and testament leaving all of his assets upon his death to his daughter, McDaniel. Then, Darryl Sr. died on February 6, 2009, and in March 2009, McDaniel probated Darryl Sr.’s will in the Yalobusha County Chancery Court.

¶ 9. Shortly thereafter, on May 28, 2009, Covington filed a “Verified Creditors’ Notice of Claim” against the Estate, alleging unliquidated claims for damages in an amount not to exceed $1,000,000, stemming from a judgment obtained in a tort action against the heirs of Darryl Sr. More specifically, Covington argued his claim as a judgment creditor against the potential heirs of the Estate arising from a lawsuit pending in the Yalobusha County Circuit Court, Lawrence Covington v. Darryl Necaise, Jr., Darryl Necaise, Sr., Linda Necaise, and Chris Long street, Cause No. CV-2007-0064-M-Y1 (hereinafter “2007 cause”). In the 2007 cause, Covington obtained a default judgment against the following heirs of Darryl Sr.: Darryl Wayne Necaise Jr., Linda, and Chris Longstreet. Even though Covington named Darryl Sr. as a defendant, Covington failed to obtain a judgment against the deceased Darryl Sr. or the Estate in the 2007 tort action. The executor, McDaniel, correctly contends that Darryl Sr. was never served with process in the 2007 cause while he was living, and she raised Covington’s lack of any judgment against the Estate. Cov-ington was made aware of the defect in his claim against the Estate. We pause in our review of the procedural posture and assignments of error raised in the chancery proceedings to address the relevance of the matters concurrently filed in the circuit court.

¶ 10. After filing notice of Covington’s claim against the Estate, and upon learning of the defect in his claim against the Estate, on June 8, 2009, Covington’s counsel filed an amended complaint in the circuit court, adding the Estate as a defendant in the 2007 cause, the tort action that Covington previously failed to serve on Darryl Sr. while he was alive. However, this attempt to obtain a judgment against the Estate by amending the 2007 complaint was unsuccessful. As discussed further below, upon subsequent motion by the Estate, the circuit court dismissed the 2007 cause without prejudice.

¶ 11. Shortly thereafter, in the chancery court probate proceedings, on June 25, 2009, Linda, Darryl Sr.’s former spouse, filed a “Petition to Strike Will Admitted to Probate, for Removal of Executrix, and for the Admission to Probate the True Last Will and Testament of Darryl Wayne Necaise, Sr.” Covington claims that he was served with notice of Linda’s petition, and he asserts service of this notice upon him rendered him a party to the litigation contesting Darryl Sr.’s will. On July 2, 2010, McDaniel filed a motion to dismiss Linda’s claims, and a hearing subsequently commenced. On September 2, 2010, the chancery court dismissed with prejudice claims made by Linda against the Estate or McDaniel. The chancery court’s September 2, 2010 order of dismissal notes that Linda voluntarily dismissed all claims made by her against the Estate.

¶ 12. Then, in attempting to stand upon Linda’s petition to strike the will admitted to probate, Covington filed numerous motions against the Estate claiming a right to contest Darryl Sr.’s will and attempting to join in the relief previously requested by Linda. However, as previously mentioned, Linda abandoned her attempts to strike the will or contest the validity of the will probated. On October 11, 2010, the Estate filed a petition to contest Covington’s claim and a motion for sanctions against Coving-ton.

¶ 13. In pursuit of a judgment against potential heirs as a creditor against the Estate, on November 15, 2010, Covington filed an “Amended Verified Creditor’s Notice of Claim,” making an unliquidated claim for damages against the Estate as a result of a new case filed by Covington in the circuit court, Lawrence Covington v. The Estate of Darryl Wayne Necaise, Sr., Cause No. CV-2009-0089-B-YA (“2009 cause”). The record reflects that Coving-ton filed this amended claim using the newly filed 2009 circuit court tort claim. The executor, McDaniel, filed an objection to Covington’s amended creditor’s claim on November 24, 2010.

¶ 14. On December 6, 2010, the chancery court conducted a hearing and granted McDaniel’s motion to contest Covington’s creditor’s claim. Further, the chancery court denied the following motions previously filed by Covington: “Motion for Reconsideration or New Hearing or[, Alternatively], a Motion for Relief from Order and Motion for Rule 11 Sanctions”; [“Motion for] Joinder in Petition to Strike Will Admitted to Probate, for Removal of Executrix, and for the Admission to Probate the Last Will and Testament of Darryl Wayne Necaise, Sr., or Alternatively, Separate Petition of Lawrence Covington for Same Relief’; “Motion for Declaratory Judgment”; “Amended Motion for Declaratory Judgment”; and “Motion to Compel Inventory, Accounting, Appraisement [sic], and Bond of Executor or Administrator of Estate.” On June 2, 2011, the chancery court granted McDaniel’s request for Rule 11 sanctions against Covington. Covington filed a motion for reconsideration, which the chancery court denied on October 3, 2011.

¶ 15. From these chancery court orders, Covington appeals in cause numbers 2011-CA-00094 and 2011-CA-01581.

Circuit Court Proceedings

¶ 16. On September 13, 2007, in the related tort action from which the alleged claim against the Estate arises, Covington filed a complaint in Yalobusha County Circuit Court naming Darryl Jr., Linda, Longstreet, and Darryl Sr. as defendants in a tort action. McDaniel contends that Darryl Sr. was never served with process in the 2007 cause, and no motion was filed by Covington requesting additional time to serve Darryl Sr. In April 2008, Covington obtained a default judgment against Darryl Jr., Linda, and Longstreet, but not against Darryl Sr. Then Darryl Sr. died on February 6, 2009.

¶ 17. Following Darryl Sr.’s death and after filing his initial claim against the Estate, Covington filed an amended complaint in the 2007 cause on June 8, 2009, adding the Estate as a defendant and setting forth that the Estate could be served through counsel for the Estate, Sabrina D. Howell.

¶ 18. On October 23, 2009, Covington filed a new complaint against the Estate in a new action, the 2009 cause, and a summons by publication was issued. Subsequently, on September 1, 2010, the circuit court dismissed without prejudice Coving-ton’s complaint against the Estate in the 2007 cause. Counsel for the Estate alleges that the 2007 cause was dismissed because Darryl Sr. had never been served, and service of the amended complaint on the Estate, which happened approximately two years later, was not timely. The circuit court proceedings nonetheless continued in the new action filed by Covington against the Estate in the 2009 cause.

¶ 19. McDaniel, on behalf of the Estate, filed a motion to dismiss the 2009 cause, which the circuit court heard on August 18, 2011. On September 8, 2011, the circuit court dismissed the 2009 cause with prejudice and ordered Covington’s counsel to pay $1,500 in attorney’s fees to the Estate pursuant to Mississippi Code Annotated section 11-55-5(1) (Rev.2012).

¶20. From these circuit court orders, Covington appeals in cause number 2011-CA-01363.

DISCUSSION

I. FINDINGS OF THE CHANCERY COURT

¶ 21. Covington argues that as a judgment creditor of both Linda and Darryl Jr., two possible beneficiaries of Darryl Sr.’s will, he constitutes an interested party with a pecuniary interest in the probate of the will. He claims that as a creditor of potential heirs, he possesses the status of a creditor of the Estate. Covington claims that the chancery court erroneously held that Covington lacked standing to contest Darryl Sr.’s will, and erroneously denied the following motions: (1) motion for reconsideration or a new hearing; (2) motions for relief from an order and for Mississippi Rule of Civil Procedure 11 sanctions; (3) motions for joinder in the petition to strike the will admitted to probate, for removal of the executor, and for admission of Darryl Sr.’s will to probate or, alternatively, separate petition of Cov-ington for same relief; (4) motion and amended motion for a declaratory judgment; and (5) motion to compel an inventory, appraisal, and bond of the executor or administrator of the Estate. Further, Covington asserts that the chancery court erred in granting McDaniel’s motion for Rule 11 sanctions and in denying his motion for reconsideration of the imposition of those sanctions.

¶ 22. In reviewing a chancellor’s findings, we employ an abuse-of-diseretion standard of review. Vincent v. Creel, 80 So.3d 859, 862 (¶ 9) (Miss.Ct.App.2012) (citation omitted). “This Court will not disturb a chancellor’s findings of fact in a will contest unless the findings are clearly erroneous [or] manifestly wrong, or the chancellor applied an incorrect legal standard.” Id. (citation omitted). However, when considering a question of law, we employ a de novo standard of review. Id.

A. Covington’s Lack of Standing

¶ 23. Covington’s appeals regarding the findings of the chancery court primarily arise out of his claim to be an interested party to the probate proceedings and the contest of Darryl Sr.’s will based upon his pecuniary interest in his judgments against potential heirs of the Estate. In support of his argument, Cov-ington relies on Mississippi Code Annotated section 91-7-25 (Rev.2004), which states that “[i]n any proceeding to contest the validity of a will, all persons interested in such contest shall be made parties.” Significantly, Covington does not assert on appeal that a judgment was entered against the Estate or Darryl Sr., the decedent.

¶ 24. Relying upon precedent, this Court recognizes that “[finterested parties are those whose direct [ ] pecuniary interests will be either detrimentally or advantageously affected by the probate of the will. Included in this group will ordinarily be [the] decedent’s heirs at law, beneficiaries under earlier wills, and beneficiaries under the will being contested.” Garrett v. Bohannon, 621 So.2d 935, 937 (Miss.1993) (emphasis added and citation omitted). With respect to the claim asserted by Covington, we find that Covington failed to prove he possessed a direct pecuniary interest against the Estate. Moreover, the only heir named in Darryl Sr.’s will, McDaniel, never contested the will. In fact, McDaniel, as the executor, had Darryl Sr.’s will admitted to probate; she possessed no duty to notice any parties except creditors of the Estate, which she alleges she accomplished by publication as required. As previously discussed, Darryl Sr.’s former spouse abandoned any intent to contest the will admitted to probate.

¶ 25. Covington asserts no direct pecuniary interest in the probate of the Estate. Covington is not a creditor of the Estate and identifies no debt or expense owed to him by the Estate or Darryl Sr., the deceased. Further, Covington is not an heir-at-law of the decedent nor a named beneficiary in any will alleged to have been executed by the decedent. In fact, Cov-ington is not a judgment creditor of the sole heir of the estate, McDaniel. Therefore, Covington fails to establish standing to assert a will contest that would never result in him being a beneficiary of the assets of the Estate. His only connection to the Estate is that he tried, yet failed, to obtain a judgment against Darryl Sr. and the Estate. As such, we find this issue to be without merit.

B. Propertg-Settlement Agreement

¶ 26. Covington claims that Darryl Sr., the decedent, revoked the will admitted for probate in a property-settlement agreement executed by Darryl Sr. that was included in the divorce decree. Because we find that Covington lacks standing to assert a will contest as to the Estate, we find this issue to be moot. Furthermore, Covington lacks a basis to join in any efforts to strike or contest the will at issue since Linda abandoned her efforts to assert such claims.

C. Sanctions

¶ 27. Rule 11 permits a court to award a responding party reasonable attorneys’ fees and expenses when “any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay[.]” M.R.C.P. 11(b). “As the rule suggests, sanctions are appropriate under this rule only when a motion or pleading has been filed.” In re Spencer, 985 So.2d 330, 339 (¶ 28) (Miss.2008). This Court has found a pleading to be frivolous “only when, objectively speaking, the pleader or movant has no hope of success.” Id. “A motion or pleading is filed for the purpose of harassment or delay when the party does not have a viable claim.” Id. We utilize an abuse-of-discretion standard of review when reviewing the judgment of the sanctioning court. Id. at 336-37 (¶ 19); see Walton v. Walton, 44 So.3d 1035, 1039 (¶¶ 15-16) (Miss.Ct.App.2010).

1. Award of Sanctions Against Covington

¶ 28. On June 2, 2011, the chancery court ordered counsel for Covington to pay McDaniel’s attorney’s fees in the amount of $3,646.50 pursuant to Rule 11 and Mississippi Code Annotated 11-55-1. On appeal, in case number 2011-CA-01581, Covington argues that the chancery court erred in granting McDaniel’s motion for Rule 11 sanctions without a sufficient showing of frivolous claims or intentional misconduct, such as harassment or delay. We now turn to a review of the chancery court’s basis for its award.

¶29. In its June 2, 2011 order, the chancery court provided extensive findings and thoroughly explained its rationale for the imposition of sanctions against Coving-ton’s counsel. The chancery court noted that the $3,646.50 in attorney’s fees resulted from having to defend against Coving-ton’s numerous motions related to contesting the validity of the probated wills. The chancery court further found that the arguments propounded by Covington’s counsel on the issue of standing to contest the will admitted to probate were “frivolous and filed without substantial justification[.]” The chancery court explained that Covington failed to present any statute or case law to the court establishing that a creditor of a potential heir possessed standing to assert a will contest. The court deemed Covington, a creditor of a potential taker under a will, as too remotely related to the Estate to possess standing to assert a will contest.

¶ 30. In addressing the issues of intentional misconduct and harassment, the chancery court also acknowledged that Covington’s counsel misrepresented pertinent facts to the court through the filing of the verified creditors’ notice of claim. The chancery court found that the actions of Covington’s counsel caused the Estate to incur unnecessary attorney’s fees in responding to Covington’s filings containing misrepresented facts, and as a result, the court determined that counsel for Coving-ton should be responsible for those fees. After reviewing the record, we find that the chancery court abused no discretion in granting McDaniel’s request for attorney’s fees. See In re Spencer, 985 So.2d at 337 (¶ 19). This issue is, therefore, without merit.

2. Denial of Sanctions Against McDaniel

¶ 31. Covington argues that the chancery court erred in denying his request for sanctions against McDaniel. In support of his argument, Covington makes claims of both collusion and conspiracy on behalf of McDaniel and her counsel. The chancery court denied Covington’s motion for sanctions because no basis existed for imposition of such an award. While Cov-ington claims to have a legitimate basis to believe that misconduct occurred on the part of McDaniel and her counsel, he failed to present any evidence to the chancery court to prove any of these allegations. After reviewing the record, we find no abuse of discretion in the chancery court’s denial of Covington’s request for sanctions. See In re Spencer, 985 So.2d at 337 (¶ 19). This issue is without merit.

II. FINDINGS OF THE CIRCUIT COURT

¶ 32. We now turn to address the tort action filed in the circuit court wherein Covington attempted to amend his previously filed 2007 complaint to add the Estate as a defendant and also attempted to file a new action against the Estate as a party, asserting the same tort asserted in the 2007 cause. In so doing, we are reminded that Covington sought such resolution after already filing as a creditor against the Estate. As previously discussed, Covington failed to serve Darryl Sr. in the 2007 cause while Darryl Sr. was alive, and after his death, Covington failed to properly serve the amended complaint in the 2007 cause and the new complaint in the 2009 cause upon the Estate.

¶ 33. Covington argues that the circuit court erred in granting the Estate’s motion to dismiss with prejudice. Furthermore, Covington claims that the circuit court erred in granting the Estate’s request for reasonable attorney’s fees.

¶ 34. This Court utilizes a de novo standard of review when considering a trial court’s grant or denial of a motion to dismiss. Lucas v. Baptist Mem’l Hosp.—N. Miss., Inc., 997 So.2d 226, 229 (¶ 5) (Miss.Ct.App.2008). “However, ‘this Court leaves to the discretion of the trial court the finding of fact on the existence of good cause or excusable neglect for delay in serving process under [Mississippi] Rule [of Civil Procedure] 4(h).’ ” Stutts v. Miller, 37 So.3d 1, 3 (¶ 7) (Miss.2010) (citation omitted). “Only where such discretion is abused or is not supported by substantial evidence will this Court reverse.” Id. (quotation marks omitted).

¶ 35. Rule 4(h) provides:

If ... service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

“Thus, Rule 4(h) provides that a complaint will be dismissed only if the plaintiff cannot show good cause for failing to serve process within 120 days.” Welch Roofing & Constr., Inc. v. Farina, 99 So.3d 274, 277 (¶ 9) (Miss.Ct.App.2012). The Mississippi Supreme Court has held that “a plaintiff attempting to establish good cause must show at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.” Id. (quotation marks omitted); see also Holmes v. Coast Transit Auth., 815 So.2d 1183, 1186 (¶ 11) (Miss.2002). “While the filing of a complaint tolls the statute of limitations, if service is not made upon the defendant within 120 days as required by [Rule] 4(h), the limitations period resumes running at the end of the 120 days.” Stutts, 37 So.3d at 7 (¶ 17).

¶ 36. The circuit court’s September 8, 2011 order of dismissal with prejudice of the 2009 cause states, in part, as follows:

1. The Plaintiffs [c]omplaint arises out of alleged incidences which occurred on May 11, 2007.
2. On September 13, 2007, the Plaintiff filed a [c]omplaint in the Yalo-busha [County] Circuit Court Cause Number CV2007-0064-M-Y1 (hereinafter referred to as the “2007 [c]ause”), which was assigned to the Honorable Judge Jimmy McClure.
3. On June 8, 2009, the Plaintiff filed an [a]mended [c]omplaint in the 2007 cause adding the Estate of Darryl Wayne Necaise, Sr. as a Defendant and set forth that said Defendant could be served through counsel for the [E]state, Sabrina D. Howell.
4. On October 23, 2009, the Plaintiff filed a [c]omplaint in the present cause against the Estate of Darryl Wayne Necaise, Sr. and had issued a [publication [s]ummons.
5. Plaintiff had 120 days to serve the Defendant with process, which time would have expired on February 23, 2010.
6. On September 1, 2010, Judge McClure heard the Defendant’s [m]otion to [dismiss in the 2007 cause and entered an [o]rder dismissing the [c]omplaint against the Estate of Darryl Wayne Necaise, Sr. without prejudice.
7. The Plaintiff did not file a motion to extend time to serve the Defendant in the present action until November 2, 2010.
8. The statute of limitations as to the claims asserted by the Plaintiff finally expired on September 23, 2010, three (3) years plus 120 days after the incidents alleged in the [c]omplaint.
9. Plaintiffs [m]otion for [extension of [t]ime to [s]erve the Defendant was filed one and one-half months after the statute of limitations expired.
10. Service of process was never completed on the Defendant in the present cause.
11. Since there was never service of process perfected and no motion for additional time to serve Defendant by September 23, 2010, this case is beyond the appropriate statute of limitations.
12. The Court finds no good cause has been shown by the Plaintiff for lack of service on the Defendant which would allow for an extension of time.
13. The [m]otion to [d]ismiss filed by Defendant, Estate of Darryl Wayne Necaise, Sr.[,] is well taken and should be granted, and Plaintiffs [c]omplaint filed against the Estate of Darryl Wayne Necaise, Sr., is hereby dismissed with prejudice pursuant to the authority cited in Stutts v. Miller, 37 So.3d 1 ([Miss.] 2010).
14. The issue of attorney’s fees requested by the Defendant is GRANTED. Accordingly, pursuant to the record made during the August 18, 2011 hearing, which is incorporated herein by reference, and in conformity with [Mississippi Code Annotated section] 11-55-5(1), [Attorney Carlos Moore shall pay [Attorney Sabrina Howell’s reasonable attorney fee of $1,500 on or before September 9, 2011.

¶ 37. The Estate alleges that it is undisputed that the only attempt made at service of process on the Estate in the 2009 cause was a summons by publication. Mississippi Rule of Civil Procedure 4(c)(4)(A) provides for service by publication only when a party shows, by sworn affidavit, that the person being served is a

nonresident of this state or not to be found therein on diligent inquiry and the post office address of such defendant be stated in the complaint, petition, or affidavit, or if it be stated in such sworn complaint or petition that the post office address of the defendant is not known to the plaintiff or petitioner after diligent inquiry!.]

¶ 38. As acknowledged in the circuit court’s 2011 order, the record in the present case shows that service by publication was not the proper means to perfect service on the Estate. The court recognized that Covington filed an amended complaint in the 2007 cause adding the Estate as a defendant and setting forth how the Estate could be served. Further, the circuit court abused no discretion in finding that Covington failed to present good cause to be granted additional time to serve the Estate. As noted by the circuit court, the statute of limitations as to the claims asserted by Covington ran on September 23, 2010, and Covington failed to file a motion for extension of time to serve the Estate until November 2, 2010. Therefore, not only did Covington fail to serve the complaint upon the Estate, but Covington also allowed the statute of limitations to expire. See e.g., Stutts, 37 So.3d at 3-7 (¶¶ 7-17). As such, the trial court abused no discretion in dismissing Covington’s ease with prejudice. Id.

¶ 39. As to the issue of attorney’s fees, we recognize that

[b]oth Rule 11 and the Litigation Accountability Act authorize an award of attorneys’ fees and expenses as a sanction for certain filings. According to Rule 11(b), the court may order expenses or attorneys’ fees if any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay.

Ill. Cent. R.R. v. Broussard, 19 So.3d 821, 823 (¶ 10) (Miss.Ct.App.2009) (quotation marks omitted). Similarly, the Litigation Accountability Act provides, in part:

[I]n any civil action commenced or appealed in any court of record in this state, the court shall award ... reasonable attorney’s fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action ... that is without substantial justification, or that the action, or any claim or defense asserted, was interposed for delay or harassment!.]

Miss.Code Ann. § 11-55-5(1).

¶ 40. The Litigation Accountability Act provides that a claim brought “without substantial justification” is one that is “frivolous, groundless in fact or in law, or vexatious, as determined by the court.” Broussard, 19 So.3d at 823 (¶ 11). “This Court uses the same test to determine whether a filing is frivolous under both Rule 11 and the Act.” Broussard, 19 So.3d at 823-24 (¶ 11). “A claim is frivolous when objectively speaking, the pleader or movant has no hope of success.” Id. (quotation marks omitted).

¶41. At the hearing on the Estate’s motion to dismiss, the circuit court addressed Covington’s counsel regarding the Rules of Professional Conduct and allowed his counsel to provide an explanation as to his actions. The circuit court then took the issue of attorney’s fees under advisement and thoroughly considered the imposition of attorney’s fees. After reviewing the record, we find no abuse of discretion in the circuit court’s award of attorney’s fees. See Miss.Code Ann. § 11-55-5(1); see also Broussard, 19 So.3d at 823-24 (¶¶ 10-11). Accordingly, we find this issue to be without merit.

¶ 42. THE JUDGMENTS OF THE YALOBUSHA COUNTY CHANCERY COURT AND THE YALOBUSHA COUNTY CIRCUIT COURT ARE AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. GRIFFIS, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., NOT PARTICIPATING.

      . Darryl Sr.’s son.

      . Darryl Sr.’s former spouse.

      . McDaniel asserts that Covington did not appear at the hearing, and no order was secured by him with regard to his continuing' representation of the matters of the Estate. Covington claims that he never received notice of the hearing, nor did he have an opportunity to be heard.

      . See Burgess v. City of Gulfport, 814 So.2d 149, 152-53 (¶ 13) (Miss.2002) (discussing a party’s standing to sue).

      . We pause to note that on June 8, 2009, Covington filed an amended complaint in the 2007 cause in the circuit court adding the Estate as a defendant. Shortly thereafter, on October 23, 2009, Covington filed a new complaint against the Estate in the circuit court (the 2009 cause).

      .McDaniel states that the 2007 cause alleged intentional and negligent torts of the defendants caused damages to Covington.

      . These assignments of error are raised on appeal in case number 201 l-CA-00094.

      . Covington raises these assignments of error in case number 2011-CA-01581.

      . See generally Robert E. Williford, Mississippi Practice Series: Mississippi Probate and Estate Administration §§ 9:2, 9:3 (3d ed.2003); see also Miss.Code Ann. § 91-7-149 (Rev. 2004) (setting forth the procedure for probating claims).

      . See generally Nat'l Heritage Realty, Inc. v. Estate of Boles, 947 So.2d 238, 244-46 (¶¶ 17-24) (Miss.2006).

      . We pause to again note that the chancery court dismissed Linda’s petition contesting the will upon Linda’s request.

      . On appeal, Covington raises this assignment of error in case number 2011-CA-00094.

      . These claims are before us in case number 2011-CA-01363.

      . See also Miss.Code Ann. § 15-1-49 (Rev. 2012).


source: Caselaw Access Project

author: BARNES, J,

license: Public Domain

text:
    Bobby CAMPBELL a/k/a Bobby Joe Campbell a/k/a Bobby Ray Campbell a/k/a Bobby Ray Dotson a/k/a Willie Dotson a/k/a Robert Jackue Campbell, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00074-COA.
    Court of Appeals of Mississippi.
    May 7, 2013.
    Rehearing Denied Aug. 20, 2013.
    Certiorari Denied Nov. 21, 2013.

      Bobby Campbell, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   BARNES, J,

for the Court:

¶ 1. Bobby Campbell, appearing pro se, appeals the Jones County Circuit Court’s denial of his motion to reconsider the dismissal of his motion for post-conviction relief (PCR). Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In May 2010, Campbell was indicted for aggravated assault; specifically, stabbing an individual in the chest. Campbell states he failed to appear at his plea hearing in February 2011. At this hearing, the State apparently made an oral motion to prosecute Campbell as a habitual offender, because on April 2, 2011, the trial court entered an order amending Campbell’s indictment to include his habitual-offender status under Mississippi Code Annotated section 99-19-81 (Rev.2007). After the order, on April 7, 2011, Campbell entered an amended petition to enter a plea of guilty as a habitual offender. On April 8, 2011, after the order and petition, the State filed a motion to amend Campbell’s indictment to include the habitual-offender status. Attached to the motion were two sentencing orders filed in 1994 for two prior felony convictions. In one conviction, Campbell pleaded guilty to burglary of a business and was sentenced to seven years in the custody of the Mississippi Department of Corrections (MDOC), to run concurrently with the sentence in his other felony conviction, where Campbell pleaded guilty to burglary of a dwelling. In the latter conviction, the court sentenced Campbell to ten years in the custody of MDOC. However, the order stated that if Campbell completed the Regimented Inmate Discipline (RID) program, he would be released and placed on supervised probation for the remainder of his sentence.

¶ B. At a plea hearing on April 21, 2011, Campbell pleaded guilty to the charge of aggravated assault as a habitual offender. The court sentenced him to twelve years as a habitual offender, with eight years to serve and the remainder of his sentence suspended upon successful completion of four years of post-release supervision. On November 15, 2011, Campbell filed a pleading entitled “Petition for Writ of Ha-beas Corpus/Motion to Vacate Conviction and Sentence,” which the trial court treated as a PCR petition. In his petition, Campbell alleged his indictment was defective; he was denied a preliminary hearing; his sentence was illegal; the State’s motion to amend the indictment to reflect a sentence enhancement was deficient; and the prior conviction sentencing him to the RID program was inadequate for enhancing his sentence. The trial court dismissed Campbell’s petition, and Campbell filed a motion to reconsider under Mississippi Rule of Civil Procedure 60(b) on December 5, 2011. The motion was denied on December 7, 2011. Campbell filed a notice of appeal of the denial on January 9, 2012. On appeal, Campbell argues his indictment is defective; his sentence as a habitual offender is illegal; and he was improperly denied an evidentiary hearing.

ANALYSIS

¶ 4. Although Campbell focuses his appeal on the issues raised in his original PCR petition, Campbell did not appeal the judgment dismissing that petition; he appealed the denial of his motion to reconsider under Rule 60(b). “An appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review.” Sims v. State, 102 So.3d 1227, 1230 (¶ 6) (Miss.Ct.App.2012) (citing Bruce v. Bruce, 587 So.2d 898, 903-04 (Miss.1991)). Therefore, we shall limit our discussion only to the denial of the motion to reconsider, and will not reach the merits of the arguments raised regarding the dismissal of the original PCR petition, as these arguments are not properly before us. See Sims, 102 So.3d at 1230 (¶ 5) (This Court declined to analyze the merits of the original PCR petition on appeal as the defendant filed his motion to reconsider the denial of his PCR petition under Rule 60(b), which does not bring up the prior judgment.); Cook v. State, 921 So.2d 1282, 1283 (¶¶ 3, 7) (Miss.Ct.App.2006) (This Court declined to address the denial of the initial PCR petition, as the defendant filed an appeal of the denial of Rule 60(b) relief.).

1. Jurisdiction

¶ 5. While the State has not challenged appellate jurisdiction, we must determine whether Campbell’s appeal is properly before this Court. Mississippi Rule of Appellate Procedure 4(a) requires that the notice of appeal be filed with the trial court within thirty days of the entry of the judgment appealed from. Generally, an appeal shall be dismissed unless the notice of appeal is timely filed pursuant to Mississippi Rule of Appellate Procedure 4 or 5. M.R.A.P. 2(a)(1). But, Mississippi Rule of Appellate Procedure 2(c) allows this Court to suspend the requirements of appellate rules in the interest of justice. This Court may suspend Rule 4(a) to allow an out-of-time appeal in criminal cases and “civil” PCR actions. See M.R.A.P. 2(c) cmt.

¶ 6. Here, the record indicates Campbell’s notice of appeal is untimely, as it was not filed within thirty days of the order. The trial court denied Campbell’s motion to reconsider on December 7, 2011. Campbell’s notice of appeal was stamped “filed” on January 9, 2012, or one day late. However, Campbell had dated the notice January 4, 2012.

¶ 7. The prison-mailbox rule states that in pro se PCR proceedings, the prisoner’s petition is considered delivered for filing when the prisoner gives the documents to prison authorities for mailing. Sykes v. State, 757 So.2d 997, 1000-01 (¶ 14) (Miss.2000). Here, the record does not indicate when Campbell delivered the documents to prison authorities for mailing. However, since his notice of appeal was received by this Court only one day late, the documents could have been delivered to prison authorities within the thirty-day time frame of Rule 4(a). Therefore, we exercise our discretion under Rule 2(c) to suspend the thirty-day requirement to the extent Campbell’s filing may have been untimely. Accordingly, this Court has jurisdiction to hear this appeal.

2. Motion to Reconsider Under Rule 60(b)

¶ 8. The trial court dismissed Campbell’s PCR petition on November 15, 2011. Instead of appealing this order, Campbell filed a motion to reconsider the dismissal under Rule 60(b) with the trial court. The trial court denied the motion as “not well taken.”

¶ 9. The standard of review for the trial court’s denial of a Rule 60 motion is abuse of discretion. Perkins v. Perkins, 787 So.2d 1256, 1261 (¶ 9) (Miss.2001). Rule 60(b) “provides for extraordinary relief granted only upon an adequate showing of exceptional circumstances.... ” Id. (citing King v. King, 556 So.2d 716, 722 (Miss.1990)). Further, “[a] party is not entitled to relief merely because he is unhappy with the judgment, but he must make some showing that he was justified in failing to avoid mistake or inadvertence ....” Id.

¶ 10. There are no “exceptional circumstances” cited in Campbell’s motion to reconsider; Campbell merely reiterates the same arguments in his motion for Rule 60(b) relief as were found in his PCR petition. Campbell seeks relief for such allegations as a defective indictment, lack of an evidentiary hearing, and sentencing challenges. Additionally, these matters do not relate to any of the specific provisions listed in Rule 60(b) for which relief is granted. In sum, we cannot find the trial court abused its discretion in denying Campbell’s motion to reconsider the dismissal of his PCR petition. Therefore, we affirm.

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

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

      . We note that under section 99-19-81, the habitual offender does not have to have served the prior sentences; he merely must have been sentenced twice previously to separate terms of one year or more in a penal institution.

      . We note in the instant case that the trial judge did not follow section 99-19-81 because he suspended a part of Campbell’s sentence, which is not allowed under the statute.

      . While a PCR petition challenges aspects of a criminal conviction, by statute it is a civil action. See Miss.Code Ann. § 99-39-7 (Supp. 2012). Therefore, certain rules of civil procedure apply to PCR matters.

      .We note if Campbell had filed his motion to reconsider under Mississippi Rule of Civil Procedure 59(e), the appeal would have encompassed both the denial of reconsideration and the underlying judgment. See Sims, 102 So.3d at 1230 (¶ 5) (citing Perkins v. Perkins, 787 So.2d 1256, 1261 (¶ 9) (Miss.2001)). However, Rule 59(e) provides that a "motion to alter or amend the judgment" must "be filed not later than ten days after entry of the judgment.” Accordingly, we note Campbell's motion to reconsider would not have been timely under Rule 59(e), as it was not filed within ten days of the judgment. The trial court dismissed Campbell's PCR petition on November 15, 2011. The motion to reconsider was dated November 30, 2011, and stamped "filed" on December 5, 2011. Under Rule 60(b), however, Campbell’s motion was timely. Rule 60(b) requires only that, depending on the allegations, "[t]he motion shall be made within a reasonable time, ... [or] not more than six months after the judgment ... was entered or taken.”

      . Campbell's notice of appeal specifically stated he was appealing the trial court’s order of December 7, 2011. This order denied his motion to reconsider.

      . The trial court entered Campbell's notice on Monday, January 9, 2012; however, thirty days from the judgment would have been Friday, January 6, 2012.

      . In his motion to reconsider, Campbell makes the following arguments: the trial court failed to address the first claim in his PCR petition regarding his defective indictment; the trial court erred in finding he was not entitled to a preliminary hearing; the trial court erred in sentencing him as a habitual offender; the failure to object to the amendment of his indictment does not bar the issue on appeal; and the trial court improperly used one of his prior convictions to enhance his sentence as a habitual offender.

      . Rule 60(b) relieves a party from a final judgment for reasons of (1) fraud, misrepresentation, or other misconduct of an adverse party; (2) accident or mistake; (3) newly discovered evidence; (4) the judgment is void; (5) the judgment is satisfied or otherwise vacated; and (6) any other reason justifying relief.


author: ISHEE, J.,

text:
    Charles GREEN, Appellant v. MISSISSIPPI DEPARTMENT OF CORRECTIONS and Christopher Epps, Commissioner, James M. Holman, Superintendent, and Chandra Berryman, Legal Claims Adjudicator, Appellees.
    No. 2011-CA-01803-COA.
    Court of Appeals of Mississippi.
    June 4, 2013.
    Rehearing Denied Sept. 3, 2013.
    Certiorari Denied Nov. 21, 2013.

      Stacy L. Ferraro, attorney for appellant.
    Office of the Attorney General by R. Stewart Smith Jr., James M. Norris, attorneys for appellees.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Charles Green brings this appeal based on the loss of certain privileges while incarcerated in the Central Mississippi Correctional Facility (CMCF), in the custody of the Mississippi Department of Corrections (MDOC). Green lost the privileges because of his failed drug tests. After he exhausted all of his administrative remedies, Green appealed the revocation of his privileges to the Rankin County Circuit Court. The circuit court affirmed the decision. Green now appeals arguing (1) the actions of the MDOC were arbitrary and capricious when it refused to timely administer a scientifically appropriate test to determine whether he had used illegal drugs; and (2) his due process rights were violated because he was unable to present evidence of his innocence and never had a full and fair hearing on the charge before either the MDOC or the circuit court. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Charles Green is currently incarcerated in the CMCF, in the custody of the MDOC. On November 22, 2010, Green submitted to a drug test in anticipation of a conjugal visit in the CMCF’s “Family House.” Inmates are required to pass a drug test in order to acquire approval to use the Family House. The test, a “Tox-Cup drug-screen cup,” indicated that Green tested positive for tetrahydrocan-nabinol (THC). A second urinalysis exam also returned a positive result. Based on the failed drug tests, Green was denied use of the Family House. Green alleges that he had been prescribed two drugs, Raniti-dine and Naproxen, which are known to result in false positive drug tests. Accordingly, he requested a blood test to confirm the results of the urinalysis, but his request was denied. Although his request was denied, Green was nonetheless given a blood test during a clinic visit on December 13, 2010. The blood test was negative for all five drug profiles.

¶ 3. As a result of his failed drug tests, Green was issued a Rule Violation Report (RVR). After a hearing held on December 5, 2010, he was found guilty of the rule violation. Green was then reduced to D custody. Green appealed this decision through the Administrative Remedy Program (ARP). The decision was affirmed without a hearing. After exhausting all of his administrative remedies, Green appealed the issuance of the RVR to the Rankin County Circuit Court. The circuit court found “that the actions of the MDOC were supported by substantial evidence, were not arbitrary or capricious, were not beyond the agency’s scope or powers, and did not violate the constitutional or statutory rights of ... Green.” Therefore, the decision of the MDOC was affirmed. Green then filed a motion to alter or amend the judgment, or for reconsideration, which was denied. From this ruling, Green appeals. Green argues that (1) the actions of the MDOC were arbitrary and capricious when it refused to timely administer a scientifically appropriate test to determine whether he had used illegal drugs; and (2) his due process rights were violated because he was unable to present evidence of his innocence and never had a full and fair hearing on the charge before either the MDOC or the circuit court.

DISCUSSION

¶ 4. “In an administrative agency appeal, the standard of review applied by this Court is identical to that of the circuit court.” Siggers v. Epps, 962 So.2d 78, 80 (¶ 4) (Miss.Ct.App.2007) (citing Wilkinson Cnty. Bd. of Supervisors v. Quality Farms, Inc., 767 So.2d 1007, 1010 (¶ 9) (Miss.2000)). We will only disturb the decision of the administrative agency if “the decision was unsupported by substantial evidence, was arbitrary or capricious, was beyond the agency’s scope or powers or violated the constitutional or statutory rights of the aggrieved party.” Id. (citing Edwards v. Booker, 796 So.2d 991, 994 (¶ 10) (Miss.2001)).

¶ 5. First, Green argues the decision was arbitrary and capricious because the ToxCup drug tests are unreliable. Green has provided no evidence to support this contention. Two tests were given, and both returned a positive result indicating the presence of THC. This issue is without merit.

¶ 6. Next, Green argues his due-process rights were violated. This Court has found that not all administrative disciplinary actions are subject to a due-process analysis. Mixon v. Enlers, 90 So.3d 635, 637 (¶ 5) (Miss.Ct.App.2012). In Mixon, we held that an inmate’s loss of privileges for thirty days was “not a property right that would constitute a violation of [the inmate’s] constitutionally protected liberty interest.” Id. at (¶ 6). Furthermore, we have held that “[ijnmates have no property or liberty interest when it comes to their housing assignment.” Hamilton v. Ruffin, 875 So.2d 1125, 1126 (¶ 5) (Miss.Ct.App.2004) (citing Carson v. Hargett, 689 So.2d 753, 754-55 (Miss.1996)).

¶ 7. Here, Green lost certain privileges based on the positive results of two drug tests. As noted above, the loss of certain privileges is not subject to a due-process analysis. We know that Green was reduced to D custody; however, neither the record nor the briefs explain exactly what privileges were lost. In his brief, Green only complains of not being allowed to use the Family House. We find that use of the Family House for a conjugal visit is not a constitutionally protected liberty interest. Therefore, this deprivation cannot give rise to a legitimate due-process claim.

¶ 8. Additionally, the MDOC followed the proper protocol for the disciplinary action. An RVR was issued, a hearing was held, and Green was found guilty based on the evidence. He was then afforded the appropriate appellate process. The decision by the MDOC was not arbitrary or capricious. Two ToxCup drug-screen tests were given. The result of both tests were positive for THC. Although Green’s blood test later tested negative for all drugs, this test was not administered until three weeks after the initial tests. Accordingly, the MDOC’s decision was supported by substantial evidence. Green’s arguments are without merit.

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

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


author: ROBERTS, J.,

text:
    Aimee Bracey PORTER a/k/a Aimee Porter, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CA-00440-COA.
    Court of Appeals of Mississippi.
    Aug. 6, 2013.
    Rehearing Denied Nov. 19, 2013.

      Kevin Dale Camp, Jackson, attorney for appellant.

      Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Aimee Bracey Porter pled guilty to DUI manslaughter and DUI mayhem. Porter subsequently filed a motion for post-conviction relief (PCR). Porter claimed that (1) she received ineffective assistance of counsel; (2) there was an insufficient factual basis for her guilty pleas; (3) new evidence suggested that she was not the proximate cause of the victims’ death or injury; and (4) the circuit court lacked jurisdiction to amend her sentence after the term of court expired. Ordered to respond to Porter’s PCR motion, the State argued that Porter’s claims had no merit. The Marion County Circuit Court summarily dismissed Porter’s first three claims. However, the circuit court agreed that it had no authority to modify Porter’s sentence after the expiration of the term of court during which she had pled guilty.

¶ 2. Porter appeals. After careful consideration, we find that the record does not contain an adequate factual basis to support Porter’s guilty pleas. Accordingly, we reverse the circuit court’s judgments, render judgments in Porter’s favor, set aside her guilty pleas, and remand Porter’s charges to the circuit court’s active trial docket.

FACTS AND PROCEDURAL HISTORY

¶ 3. During November 2006, Porter was driving on Highway 98 in Marion County, Mississippi. Porter, a twenty-seven-year-old college-educated public-school teacher, was driving in the left lane of the four-lane highway when she was involved in a collision with Matthew Riley’s vehicle. Riley had been driving in the right lane of the four-lane highway. Riley’s wife and their two children were passengers in Riley’s vehicle. Tragically, the Rileys’ daughter, Alyssa, died. Their other daughter, Carmen, was injured.

¶ 4. Trooper Ronald Rayburn of the Mississippi Highway Patrol (MHP) responded to the scene of the collision. Trooper Rayburn told Porter that MHP’s policy was to obtain a blood sample from any driver who had been involved in a collision that resulted in death. Consequently, Trooper Rayburn asked Porter to consent to having her blood drawn. Porter consented. Approximately three hours later, Porter’s blood was drawn. Subsequent testing revealed that Porter’s blood contained 2.9 micrograms per milliliter of Carisprodal, 5.9 micrograms per milliliter of Meprobamate, and 99 nanograms per milliliter of hydro-codone.

¶ 5. A Marion County grand jury returned an indictment against Porter and charged her with DUI manslaughter and DUI mayhem. Porter pled guilty to both charges on July 30, 2008. For DUI manslaughter, the circuit court sentenced Porter to twenty years in the custody of the Mississippi Department of Corrections (MDOC), with fifteen years to serve, followed by five years of post-release supervision. For DUI mayhem, the circuit court sentenced Porter to twenty years in the custody of the MDOC, with five years to serve, followed by fifteen years of post-release supervision — five of which were to be reporting post-release supervision. Additionally, the circuit court set Porter’s sentence for DUI mayhem to run consecutively to her sentence for DUI manslaughter.

¶ 6. Porter filed a PCR motion and claimed that she had received ineffective assistance of counsel. In particular, Porter argued that her previous retained attorney, James K. Dukes Jr., failed to adequately investigate her possible defenses. According to Porter, Dukes had told her that she was “undoubtedly under the influence” of a controlled substance at the time of the accident. Porter argued that Dukes’s opinion was based solely on his layman’s review of her blood-test results. Porter noted that Dr. Steven Hayne, a forensic pathologist, had reviewed her blood-test results after the circuit court had sentenced her. Porter further noted that, according to Dr. Hayne, the concentrations of the medications in her blood indicated that she was not impaired at the time of the accident. To support her claim, Porter attached Dr. Hayne’s report and his sworn affidavit to her PCR motion.

¶ 7. Porter also argued that Dukes had failed to investigate her claim that her right-front tire blew out immediately before the accident. According to Porter, because her right-front tire had blown out, her vehicle drifted into the right lane of the four-lane highway and collided with the Rileys’ vehicle. Stated differently, Porter claimed that the collision was not caused by any negligence on her part. Porter claimed that she had told Dukes about her potential defense, but Dukes had not investigated it. Porter said that she would not have pled guilty if Dukes would have adequately investigated her two potential defenses.

¶ 8. Additionally, Porter argued that Dukes should have tried to prevent the prosecution from attempting to introduce her blood-test results because she did not voluntarily consent to the blood test. Porter further argued that her blood was drawn outside of the two-hour window contemplated by Mississippi Code Annotated section 68-11-8 (Rev.2004). Porter’s final three issues were that (1) there was an insufficient factual basis for her guilty pleas; (2) the circuit court erred when it amended her sentencing order after the term of court during which she had pled guilty; and (3) she was not the proximate cause of the accident.

¶ 9. As mentioned above, the circuit court ordered the State to respond to Porter’s PCR motion, and the State argued in its response that Porter was not entitled to any relief. Without conducting an evidentiary hearing, the circuit court held that it erred when it amended Porter’s sentencing order after the relevant term of court had expired. Otherwise, the circuit court summarily dismissed Porter’s remaining claims. Porter appeals. Because we find that there was an insufficient factual basis to support Porter’s guilty pleas, we do not address Porter’s other issues on appeal.

STANDARD OF REVIEW

¶ 10. “This Court will not disturb a trial court’s dismissal of a [motion] for post-conviction relief unless the trial court’s decision was clearly erroneous.” Wardley v. State, 37 So.3d 1222, 1223-24 (¶ 4) (Miss.Ct.App.2010). A PCR motion may be summarily dismissed “where ‘it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.’ ” White v. State, 59 So.3d 633, 635 (¶ 4) (Miss.Ct.App.2011) (quoting Miss. Code Ann. § 99-39-11(2) (Supp.2010)). Questions of law receive a de novo review. Id.

ANALYSIS

FACTUAL BASIS

¶ 11. Porter claims there was an insufficient factual basis for her guilty pleas. We agree. Based on the resolution of this issue, Porter’s other issues are moot.

¶ 12. Rule 8.04(A)(3) of the Uniform Circuit and County Court Rules provides that “[b]efore the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea.” (Emphasis added). “A sufficient factual basis requires an evidentiary foundation in the record which is sufficiently specific to allow the court to determine that the defendant’s conduct was within the ambit of that defined as criminal.” Smith v. State, 86 So.3d 276, 280 (¶ 11) (Miss.Ct.App.2012) (citations and quotations omitted). “We review the entire record to discern whether a sufficient factual basis exists.” Id. at 280-81 (¶ 11) (citation omitted).

¶ 13. “The factual-basis component of the rule requires that, before it may accept the plea, the circuit court have before it, inter alia, substantial evidence that the accused did commit the legally defined offense to which he is offering the plea.” Burrough v. State, 9 So.3d 368, 373 (¶ 14) (Miss.2009) (quoting Corley v. State, 585 So.2d 765, 767 (Miss.1991)). “There are numerous ways by which the facts may be found, but what ultimately is required is there must be enough that the court may say with confidence the prosecution could prove the accused guilty of the crime charged.” Burrough, 9 So.3d at 373 (¶ 14) (citation omitted). “A factual showing does not fail merely because it does not flesh out the details which might be brought forth at trial. Fair inference favorable to guilt may facilitate the finding.” Smith, 86 So.3d at 281 (¶ 15) (quoting Gaskin v. State, 618 So.2d 103, 106 (Miss.1993)).

¶ 14. A defendant can establish a factual basis for a guilty plea simply by pleading guilty; however, the guilty plea “must contain factual statements constituting a crime or be accompanied by independent evidence of guilt.” Hannah v. State, 943 So.2d 20, 26-27 (¶ 16) (Miss.2006). In other words, “a factual basis is not established by the mere fact that a defendant enters a plea of guilty.” Id. at 27 (¶ 16). Finally, an appellate court is not limited to a review of a defendant’s plea transcript when determining if a factual basis existed for a guilty plea. Boddie v. State, 875 So.2d 180, 183 (¶ 8) (Miss.2004). Instead, we may review the record as a whole. Id.

¶ 15. Porter was indicted for two violations of Mississippi Code Annotated section 63-11-30(5) (Rev.2004). Specifically, Porter was charged as follows:

COUNT ONE
On or about the 3rd day of November, 2006[,] the defendant, ... Porter, did then and there willfully, unlawfully[,] and feloniously drive or operate a vehicle in the county of Marion, Mississippi[,] at a time in which she was under the influence of one or more controlled substances, to wit: Meprobamate, a [schedule IV [controlled [s]ubstance under [s]ection 41 — 2[9]—119 of the Mississippi Code of 1972, as amended[,] and [hjydrocodone, a [sjchedule III [c]on-trolled [s]ubstance under [s]ection 41-29-117 of the Mississippi Code of 1972, as amended, and [Porter], at that time, in a negligent manner, did cause the death of a human being, Alyssa Brook Riley, contrary to and in violation of [s]ection 63-11-30(5) of the Mississippi Code of 1972, as amended[,] against the peace and dignity of the State of Mississippi, and
COUNT TWO
On or about the 3rd day of November, 2006[,] the defendant, ... Porter, did willfully, unlawfully[,] and feloniously operate and drive a motor ... vehicle in the County of Marion, Mississippi^] during a time in which she ... was under the influence of one or more controlled substances, to wit: Meprobamate ... and [h]ydrocodone ..., and as a direct and proximate result[,] did cause serious bodily injury to Carmen Riley, a human being, contrary to and in violation of [s]ection 63-11-30(5) ... against the peace and dignity of the State of Mississippi. ...

¶ 16. There must be a sufficient factual basis that Porter (1) was impaired by controlled substances prior to the accident; (2) was operating a vehicle in Marion County, Mississippi; and (3) performed a negligent act that caused Alyssa’s death and Carmen’s serious bodily injury. See Joiner v. State, 835 So.2d 42, 43-44 (¶ 5) (Miss.2003) (citation omitted). During the guilty-plea colloquy, the circuit court asked Porter whether she wanted to have the indictment read to her. Porter’s attorney, Dukes, stated that Porter “waived” having the indictment read to her. But even if the circuit court had read the indictment to Porter, the indictment did not include specific factual details regarding the manner in which Porter was negligent. Count one of the indictment merely accused Porter of causing Alyssa’s death “in a negligent manner.” Count two of the indictment did not even allege that Porter committed a negligent act that caused Carmen’s serious bodily injury.

¶ 17. In Smith, 86 So.3d at 281 (¶ 14), this Court noted that, during Smith’s guilty-plea hearing, the prosecution discussed the evidence that it was prepared to present in the event that Smith opted to go to trial. Unlike Smith, there is nothing from which this Court may infer Porter’s guilt. Although Porter waived having the indictment read to her, the record still must indicate that Porter’s conduct “was within the ambit of that defined as criminal.” Id. at 280 (¶ 11).

¶ 18. Porter’s guilty-plea petition did not include sufficient details to satisfy that standard. Porter’s guilty-plea petition is a four-page form. At paragraph thirteen, the following statement appears: “I plead ‘GUILTY’ and request the [c]ourt to accept my plea of ‘GUILTY’ and to have entered my plea of ‘GUILTY’ on the basis of (state involvement in crime).” A blank line follows that statement. On that blank line, Porter or Dukes wrote: “under the influence of prescription medication.” There is no reference to any of the other necessary elements of the crimes.

¶ 19. During Porter’s guilty-plea hearing, the State did not recite the evidence that it was prepared to present. Porter did not discuss the facts of the accident at all. And although the State attached affidavits to its response to Porter’s PCR motion, and those affidavits indicated that she had been driving erratically before the collision, those affidavits were never discussed before she pled guilty or during her guilty-plea hearing. The State did not introduce those affidavits into the record when Porter pled guilty. The first time those affidavits appear in the record is when the State responded to Porter’s PCR motion, which was more than three years after Porter’s guilty pleas. Those affidavits cannot operate as some form of a nunc pro tunc factual basis to accept Porter’s guilty pleas. To reiterate, a guilty plea under section 63-11-30(5) must include a factual basis that (1) Porter had been driving in Marion County, Mississippi; (2) while she was driving, she was impaired by controlled substances; and (3) she performed a negligent act that caused Alyssa’s death and Carmen’s serious bodily injury. See Campbell v. State, 858 So.2d 177, 180 (¶ 14) (Miss.Ct.App.2003) (citing Hedrick v. State, 637 So.2d 834, 837-38 (Miss.1994)). There was simply no factual basis to support a conclusion that Porter performed a negligent act that caused Alyssa’s death or Carmen’s injury. Therefore, we conclude that the circuit court’s decision to dismiss Porter’s PCR motion was clearly erroneous.

¶ 20. THE JUDGMENT OF THE MARION COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED, JUDGMENT SETTING ASIDE HER GUILTY PLEAS IS RENDERED IN HER FAVOR, AND THE CHARGES ARE REMANDED TO THE CIRCUIT COURT’S ACTIVE TRIAL DOCKET. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARION COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P JJ., ISHEE, FAIR AND JAMES, JJ., CONCUR. BARNES, J, CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., NOT PARTICIPATING.

      . During the June 2008 term of court, the circuit court originally ordered Porter to pay a $1,000 fine and approximately $150,000 in restitution. The circuit court further ordered Porter to "diligently increase her monthly payment over time in order to make full restitution.” After the June 2008 term of court had expired, the circuit court heard an ore tenus motion for clarification of its previous order. The circuit court subsequently held that Porter was obligated to pay restitution to the victims' family regardless of whether they were able to obtain a recovery against Porter’s insurance policy.

      . Porter’s claim that she was not the proximate cause of the accident was based on the fact that the Rileys had sued Ford Motor Company and alleged that a faulty seat belt was responsible for Alyssa's death and Carmen’s injury.


author: LEE, C.J.,

text:
    Dexter RHODES a/k/a Dexter Maurice Rhodes, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01580-COA.
    Court of Appeals of Mississippi.
    Oct. 29, 2013.
    Office of State Public Defender by Erin Elizabeth Pridgen, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   LEE, C.J.,

for the Court:

¶ 1. Dexter Rhodes was convicted of conspiracy to commit armed robbery and sentenced to five years, with two and one-half years to serve in the custody of the Mississippi Department of Corrections and two and one-half years suspended on the condition he completes two and one-half years of supervised probation. Rhodes filed post-trial motions in the Washington County Circuit Court, which were denied. Rhodes now appeals.

¶ 2. Rhodes is represented by the Indigent Appeals Division of the Office of the State Public Defender. Rhodes’s appellate counsel filed a brief with this Court pursuant to Lindsey v. State, 939 So.2d 743 (Miss.2005), stating no arguable issues existed for appeal. Rhodes’s appellate counsel also confirmed that she sent a copy of her brief to Rhodes, along with correspondence informing Rhodes that she found no arguable issues in the record to raise as error, and that Rhodes had a right to file a pro se brief to raise any perceived errors. Rhodes ultimately filed a pro se brief, arguing he was offered immunity for his statements implicating others in the armed robbery. Upon review, we find no error and affirm.

FACTS

¶ 3. On July 10, 2003, Eric Ford, Dwayne Sharp, and Edward Kyser stole approximately $30,000 worth of chemicals from the Helena Chemical Company’s warehouse in Leland, Mississippi. Sharp also shot and wounded a warehouse employee during the robbery. During the investigation, Rhodes was interviewed since he knew Ford, Sharp, and Kyser. Rhodes admitted that Ford approached him about stealing chemicals. Rhodes was a former truck driver for Helena Chemical in Arkansas. Rhodes told Sharp about Ford’s plan and gave him Kyser’s contact information. Rhodes admitted he offered to show the three men how to carry out the robbery in exchange for money. After the robbery and shooting, Rhodes took them to a buyer for the chemicals. This buyer, Jay Coburn, bought the chemicals for $2,400. Rhodes, Ford, Sharp, and Kyser were all eventually arrested.

DISCUSSION

¶ 4. In Lindsey, 939 So.2d at 748 (¶ 18), the Mississippi Supreme Court set forth the process to follow when appellate counsel for an indigent criminal defendant concludes no arguable issues exist on appeal. Specifically, the Lindsey court stated:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1)-(4), (7); see also [Smith v.] Robbins, 528 U.S. [259,] 280-81, 120 S.Ct. 746, 145 L.Ed.2d 756 [ (2000) ] (stating that “counsel’s summary of the case’s procedural and factual history, with citations of the record, both ensures that a trained legal eye has searched the record for arguable issues and assists the reviewing court in its own evaluation of the case.”).
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant’s success on appeal.
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Id. (internal citations and footnotes omitted).

¶ 5. Here, Rhodes’s attorney indicated she diligently and thoroughly scoured the record, searching for any arguable issues that could be presented in good faith on appeal, but she found none. Rhodes’s attorney asserted that she specifically examined: (1) the reason for Rhodes’s arrest and the surrounding circumstances; (2) any possible violation of Rhodes’s right to counsel; (3) the entire trial transcript; (4) all rulings of the trial court; (5) possible prosecutorial misconduct; (6) all jury instructions; (7) all exhibits, whether admitted into evidence or not; (8) possible misrepresentation of the law in sentencing; (9) the indictment and all pleadings in the record; (10) any possible ineffective-assistance-of-counsel issues; and (11) any other possible reviewable issues.

¶ 6. Rhodes’s counsel requested this Court allow an additional forty days for Rhodes to file a pro se brief, should he so desire. Rhodes’s counsel also stated she sent a copy of the brief along with correspondence informing Rhodes that she found no arguable issues in the record and advising Rhodes of his right to file a pro se brief.

¶ 7. Rhodes did file a pro se brief, arguing that he was offered immunity for his statements regarding the armed robbery. However, Rhodes offers no evidence to support this assertion. Furthermore, after thoroughly reviewing the record, we have found no arguable issues for our review. Finding no error that warrants reversal, we must affirm. Graves v. State, 78 So.3d 942, 943 (¶ 8) (Miss.Ct.App.2012).

¶ 8. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF CONSPIRACY TO COMMIT ARMED ROBBERY AND SENTENCE OF FIVE YEARS, WITH TWO AND ONE-HALF YEARS TO SERVE AND TWO AND ONE-HALF YEARS SUSPENDED ON THE CONDITION THE APPELLANT COMPLETES TWO AND ONE-HALF YEARS OF SUPERVISED PROBATION, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY $500 TO THE MISSISSIPPI CRIME VICTIMS’ COMPENSATION FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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


author: JAMES, J., CARLTON, J.,

text:
    Shain C. SPEIGHTS, Appellant v. Dana Woods SPEIGHTS, Appellee.
    No. 2012-CA-00737-COA.
    Court of Appeals of Mississippi.
    Nov. 5, 2013.

      Joseph Preston Durr, W. Brady Kel-lems, Brookhaven, attorneys for appellant.
    Jamie Hardison-Edwards, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Shain and Dana Speights were granted an irreconcilable-differences divorce by the Lawrence County Chancery Court. Shain appeals the chancellor’s decision to award physical custody of the parties’ four minor children to Dana, in addition to the award of $2,500 in attorney’s fees to Dana. This Court affirms the award of physical custody. However, we find an abuse of discretion in the chancellor’s award of attorney’s fees. Thus, we reverse and remand that portion of the judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. Shain and Dana were married on July 14, 2000. During the marriage, the parties had four children. The parties separated on November 23, 2009. On April 30, 2010, Dana filed for divorce on the ground of habitual cruel and inhuman treatment or, in the alternative, on the ground of irreconcilable differences. On June 2, 2011, the Lawrence County Chancery Court entered a temporary order, granting Dana temporary custody of the parties’ four minor children. The parties were awarded joint legal custody of the children, and Shain was granted visitation. On March 15, 2012, Shain filed an answer and counterclaim for divorce on the grounds of adultery and habitual cruel and inhuman treatment or, in the alternative, on the ground of irreconcilable differences.

¶ 3. A trial was held on March 19, 2012. The parties agreed to a divorce based on irreconcilable differences. Dana was awarded physical custody of the parties’ four children, and Shain was granted reasonable visitation. The chancellor ordered Shain to pay $1,311.60 per month in child support to Dana. Shain was also ordered to pay $2,500 in attorney’s fees incurred by Dana. A $15,564 retirement account held by Shain was split between the parties. Following the April 6, 2012 judgment of divorce, Shain filed the current appeal.

STANDARD OF REVIEW

¶ 4. Our scope of review in domestic-relations matters is limited. Montgomery v. Montgomery, 759 So.2d 1238, 1240 (¶ 5) (Miss.2000) (citing Bell v. Parker, 563 So.2d 594, 597-97 (Miss.1990)). This Court will not disturb a chancellor’s judgment absent an abuse of discretion or manifest error. Id.

DISCUSSION

I. Custody

¶ 5. Shain argues that the chancellor’s decision to award physical custody to Dana was unsupported by the evidence and was contrary to the best interest of the children. In child-custody cases, the polestar consideration is the best interest and welfare of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The Albright test weighs the following factors for each parent:

Age[,] ... health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of the parent and child; moral fitness of the parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of [the] home environment and employment of each parent[;] and other factors relevant to the parent-child relationship.

Id.

¶ 6. The chancellor applied each of the Albright factors in determining which parent was better suited for physical custody of the minor children. Ultimately, the chancellor determined that it was in the best interest of the children to remain in Dana’s custody. Shain contends that the chancellor erred in the Albright analysis of three factors: (1) the health and sex of the children, (2) parenting skills, and (3) the stability of the home environment.

¶ 7. To support his argument, Shain refers to an incident that occurred during the parties’ separation while the children were in Dana’s care. Dana testified that on one morning, the parties’ eleven-year-old son, who has ADHD, mistakenly ingested the wrong type of medication. Dana stated that she usually places all of the children’s medication on the kitchen table. The parties’ seven-year-old daughter takes medication for asthma. Dana testified that, at the time of the incident, the brand of their son’s ADHD medication had been recently changed, and he mistakenly thought that the asthma medication was his new medication. According to Dana, the child was immediately taken to the emergency room for treatment. Dana testified that the child was not physically harmed, nor did he suffer any long-term effects from the ingestion. Dana also testified that she now gives each child their respective medications herself, and that she watches the children as they take the medication.

¶ 8. Also in support of his argument, Shain references the children having head lice while in Dana’s care. The chancellor found that this did not adversely affect the children because the head lice “only happened on two occasions ... and there have been no further episodes.” In his brief, Shain argues that this in incorrect. From the record, it is unclear where the chancellor got the notion that the children had head lice on only two occasions. At trial, the following exchange took place between Dana and Shain’s attorney regarding the head lice:

Q: You spoke about the lice incident. Was that just with [two of the children]?
A: No. It was all the kids. When you have lice with one child, it’s more than likely they all will have it.
Q: Now, was this only one occasion? Was that more than one occasion?
A: No. It was — it was several occasions, because we could never pinpoint where it came from. I still, to this day do not know where it came from. But it has been dealt with. It’s been treated. And they have not had it in a while — [a] long time.

While the record does not support the chancellor’s finding that the children only had head lice on two occasions, Dana’s testimony that the children were treated and have not since suffered from lice supports the chancellor’s determination that no adverse effect occurred.

¶ 9. Shain argues that the “health of the children” and “stability of the home environment” factors favor him over Dana for a number of reasons. First, Shain points to the fact that Dana is a smoker. Dana testified that she normally smokes cigarettes outside of the home, but has on occasion smoked around the children while inside the home. Shain argues that Dana’s smoking negatively affects the health of the children. However, Shain testified that his grandmother, who occasionally helps with the children while they are in his custody, smokes as well. The chancellor found that because there was no evidence of an adverse impact on the children from the grandmother’s smoking or from Dana’s smoking, the “health of the children” factor was neutral. The chancellor did, however, order that there be no smoking or consumption of alcohol in the presence of the children by either party or by family members.

¶ 10. Next, Shain argues that since the parties’ separation, Dana has moved three times, and that her moving evinces instability of the home environment. However, Dana testified that during each of these moves, the children remained in the same school. Dana also testified that she has lived at her current address for over a year. For these reasons, the chancellor found that the children were not adversely affected as a result of the moves.

¶ 11. Shain also argues that the children would be more stable in his custody because he is employed and Dana is not. Dana testified that during the marriage, both parties agreed that Dana would forgo her career plans so that she could remain home and care for the children full-time. Dana stated that after the parties separated, she obtained employment, but quit working after five months because it was causing her to spend too much time away from the children. She also stated that she is currently looking for a job. The chancellor determined that because Dana had been the primary caregiver of the children since their births, it was in the children’s best interest to remain in her custody. The chancellor did not find Dana’s current unemployment to have a negative impact on the children.

¶ 12. Regarding the parties’ parenting skills, Shain argues that Dana has made poor decisions regarding the children’s care since the parties’ separation. Specifically, Shain refers to Dana’s decision to allow the children to take medication while unsupervised. As previously stated, Dana testified that she now supervises the children when they take medication, and the medication is no longer stored within the children’s reach. The chancellor determined that the incident of the parties’ son ingesting the wrong medication was an isolated incident, and held the following:

The Court is satisfied that was a mistake and is satisfied that the mother immediately corrected that problem by securing the appropriate medical treatment and by making sure that the medicine was given from her hand to [the child’s] hand every day thereafter. Medicine was not thereafter left on the kitchen counter for [the child] to pick up and take.

¶ 13. Shain also references Dana’s decision to expend money on Christmas gifts for the children instead of paying her monthly car note. According to Dana, Shain had given her money, which she used to purchase gifts for the children. Dana stated that during that time, her vehicle was repossessed because she did not have the funds to make the monthly car payments. Shain argues that Dana’s using funds for non-necessities and allowing her only means of transportation to be repossessed show poor parental judgment. However, Dana testified that she had purchased another vehicle at the time her first vehicle was repossessed, and the children are not without transportation.

¶ 14. “We will not disturb the findings of a chancellor unless the chancellor was manifestly wrong [or] clearly erroneous, or applied an erroneous legal standard.” Jordan v. Jordan, 105 So.3d 1130, 1133 (¶ 10) (Miss.Ct.App.2012) (quoting Taylor v. Bell, 87 So.3d 1134, 1137 (¶ 6) (Miss.Ct.App.2012)). Accordingly, we decline to disturb the chancellor’s findings. The record shows that the chancellor carefully applied each of the Albright factors, and the judgment is well supported by the evidence. We find no error in the chancellor’s decision to award physical custody of the children to Dana.

II. Attorney’s Fees

¶ 15. Next, Shain argues that the chancellor erred in awarding $2,500 in attorney’s fees to Dana. “The award of attorney[’s] fees in divorce cases is left to the discretion of the chancellor, assuming he follows the appropriate standards.” Creekmore v. Creekmore, 651 So.2d 513, 520 (Miss.1995) (citing Adams v. Adams, 591 So.2d 431, 435 (Miss.1991)). “Attorney's] fees are not generally awarded unless the party requesting such fees has established the inability to pay.” Id. (citing Dunn v. Dunn, 609 So.2d 1277, 1287 (Miss.1992)). Regarding attorney’s fees, the chancellor held the following:

The Court finds that the Plaintiff did not have the income or financial resources with which to employ an attorney. The Court finds that the Defendant, Shain Speights, has assets and income which has enabled him to pay attorney’s fees for his representation in the cause. The Court finds that it would be inequitable under the circumstances ... to not order the Defendant, Shain Speights, to pay and be responsible for the attorney’s fees of the Plaintiff, Dana Speights. Therefore, the Court, taking into consideration the Court’s familiarity with the time and work necessary to properly and adequately represent a party in a child custody dispute[,] ... finds that an appropriate attorney’s fee to be paid ... would be in the amount of $2,500.

¶ 16. Although Dana offered testimony regarding her lack of income, she did not offer any evidence of the amount of attorney’s fees she incurred. The record shows that Dana’s attorney briefly mentioned her intention to offer evidence of attorney’s fees at the conclusion of trial, but she never did so. At no time during trial did Dana or her attorney provide the chancellor with evidence of attorney’s fees. Thus, it is unclear to this Court how the chancellor arrived at a figure of $2,500. Further, there is no financial statement from Dana in the record to substantiate her inability to pay.

¶ 17. “An award of attorney’s fees should be ‘fair and should only compensate for services actually rendered after it has been determined that the legal work charged for was reasonably required and necessary.’ ” Jordan, 105 So.3d at 1135 (¶ 20) (quoting Dunn, 609 So.2d at 1286). It has long been the practice of trial courts to apply the factors in McKee v. McKee, 418 So.2d 764, 767 (Miss.1982), in awarding attorney’s fees. Although it is not necessarily reversible error for the chancellor not to make an on-the-record analysis of the McKee factors, without any evidence of fees in the record, we have absolutely no way of determining whether the chancellor’s award was reasonable.

¶ 18. In response to the dissenting opinion, it was not necessary for the appellant to request a reconsideration in order to preserve the matter for appeal. The case of Concannon v. Reynolds, 878 So.2d 107 (Miss.Ct.App.2003), was decided on limited facts, as were other cases cited in the dissenting opinion. These cases did not have the effect of altering Mississippi Rule of Appellate Procedure 3(a), which states:

(a) Filing the Notice of Appeal. In all cases, both civil and criminal, in which an appeal is permitted by law as of right to the Supreme Court, there shall be one procedure for perfecting such appeal. That procedure is prescribed in these rules.... [Decisions or orders in conflict with these rules shall be of no further force or effect.

The proper filing of a notice of appeal is the first step in perfecting an appeal. No request for a rehearing or request for reconsideration is necessary. The dissenting opinion also relies on Mississippi Code Annotated section 9-1-41 (Rev.2002), which states:

In any action in which a court is authorized to award reasonable attorneys’ fees, the court shall not require the parties seeking such fees to put on proof as to the reasonableness of the amount sought, but shall make the award based on the information already before it and the court’s own opinion based on experience and observation; provided however, a party may, in its discretion, place before the court other evidence as to the reasonableness of the amount of the award, and the court may consider such evidence in making the award.

¶ 19. In the present case, the chancellor made insufficient findings and there is insufficient proof in the record for this court to determine whether the chancellor’s findings were fair and reasonable. Although the statute gives the court broad discretion, the award of attorney’s fees cannot be upheld by this court unless the record supports the award. An award of attorney’s fees may be sufficient in a simple matter before the court, where the award is based on the court’s experience and observation. However, in a case of this nature, where there are many billable hours that the court is unable to observe or lacks knowledge of, it is incumbent upon the party requesting fees to place before the court evidence as to the reasonableness of the amount of the award, so that the record as a whole can support the award of attorney’s fees. Because the chancellor’s award of $2,500 is not supported by the evidence, we reverse and remand this portion of the judgment for a proper assessment of attorney’s fees.

¶ 20. THE JUDGMENT OF THE LAWRENCE COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE.

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

CARLTON, J.,

concurring in part and dissenting in part:

¶ 21. I respectfully concur in part and dissent in part with respect to the majority’s opinion. I concur with the majority’s decision affirming the chancellor’s award of physical custody of the parties’ four minor children to Dana. However, since I find no abuse of discretion by the chancellor in his award of attorney’s fees to Dana, I would also affirm this decision. See Miss.Code Ann. § 9-1-41 (Rev.2002); I also respectfully submit that Shain failed to preserve for appellate review his claim that insufficient evidence or findings support the chancellor’s award of attorney’s fees by failing to object, failing to request reconsideration or amended findings, and by failing to request a new trial or relief from the judgment. I therefore dissent in part from the majority opinion as to this issue.

¶ 22. Here, the complaint shows that Dana claimed an inability to pay her attorney’s fees, and her complaint requested that the court order Shain to pay all attorney’s fees and costs of court. Shain denied Dana’s averment, and in his counter-complaint, Shain also asserted that the trial court should award him, not Dana, reasonable attorney’s fees. In satisfying the factual findings required by precedent and equity, the chancellor first determined that Dana lacked ability to pay her attorney’s fees. See Lindsey v. Lindsey, 219 Miss. 540, 544, 69 So.2d 203, 204 (1954) (chancellor must find inability to pay to support an award of attorney’s fee award in a divorce case); 7 Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law § 8:68, at 260 (2001) (award of attorney’s fee in divorce case must be supported by finding that requesting party lacked ability to pay).

¶ 23. With respect to reasonableness of the amount of the attorney’s fee award, the Legislature established in Mississippi Code Annotated section 9-1^1:

[T]he court shall not require the party-seeking such fees to put on proof as to the reasonableness of the amount sought, but shall make the award based on the information already before it and the court’s own opinion based on experience and observation; provided however, a party may, in its discretion, place before the court other evidence as to the reasonableness of the amount of the award, and the court may consider such evidence in making the award.

The Legislature last amended section 9-1-41 in 1990. Previously, in Cheatham v. Cheatham, 537 So.2d 435, 440 (Miss.1988), the supreme court recognized that McKee set forth the following factors for the chancellor to consider as guidelines when determining an appropriate amount of fees sufficient to employ one competent attorney:

[RJelative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.

¶ 24. Here, the record shows that the chancellor followed the statutory provisions of section 9-1-41 and also considered the McKee factors. Consistent with section 9-1-41, the chancellor applied his experience and observation to the information before the court in determining the reasonableness of the amount of attorney’s fees required to procure one competent attorney in that community for this case. See Gulf City Seafoods, Inc. v. Oriental Foods, Inc., 986 So.2d 974, 978-79 (¶ 18) (Miss.Ct.App.2007) (identifying section 9-1-41 as Mississippi’s law governing reasonableness of attorney’s fees).

¶ 25. As stated, in the judgment granting the divorce, the chancellor found Dana lacked the income or financial resources to employ an attorney. In addressing Shain’s counter-complaint for attorney’s fees, the chancellor determined that Shain possessed sufficient assets and income to enable him to pay attorney’s fees for his representation. Consistent with precedent and section 9-1-41, the chancellor then found that in light of Dana’s inability to pay, equity required that he order Shain to pay for Dana’s attorney’s fees. The chancellor then determined that, after taking into consideration the court’s familiarity with the time and work necessary to properly and adequately represent a party in a child-custody dispute such as this ease, an appropriate attorney’s fee to be paid for and on behalf of Dana would amount to $2,500.

¶ 26. The record reflects that the complaint was filed in April 2010. The record also shows that motions for continuance were filed, as well as a motion and an amended motion for temporary relief. The record shows that a notice of hearing and amended notice of hearing were filed and a temporary order issued. Discovery was served, and Dana filed a motion to compel discovery responses from Shain. As noted above, the record reflects Shain filed a counterclaim and answered Dana’s complaint for divorce on March 15, 2012. The judgment of divorce was entered on April 6, 2012, and a consent to submit certain issues to the court for adjudication was filed. Sham’s testimony in the record also shows that a restraining order was entered. The record shows that during the course of litigating this case, the chancellor reviewed evidence of the extensive financial information of the parties. See Miss.Code Ann. § 9-1-41 (allowing court to make decision based upon evidence before the court).

¶ 27. In this case, the chancellor clearly found that Dana lacked the ability to pay her attorney’s fees. The record shows that the chancellor rendered such a finding of inability to pay on behalf of Dana, and as noted, information before the court supports that finding by the chancellor. After finding Dana lacked financial ability to pay her attorney, the chancellor stated that taking the court’s familiarity with the time and work necessary to properly and adequately represent a party in a child-custody dispute such as the present matter, an appropriate fee would amount to $2,500. Additionally, the comments by the chancellor reflect that he considered the factors set forth in McKee in determining the fee sufficient in this case to employ one competent attorney in that community. I find the chancellor’s decision consistent with section 9-1^1 and precedent. The record reflects that the chancellor considered his knowledge of the complexity of this domestic-relations case based upon the information before the court and the court’s observation and experience as to the customary charge for a competent attorney in that community. Shain, as the appellant, fails to identify an abuse of discretion or insufficiency in the chancellor’s award of attorney’s fees. I also note that Shain failed to raise a question about the fee or its sufficiency below with the trial court. See Williamson v. Williamson, 81 So.3d 262, 276 (¶¶ 29-30) (Miss.Ct.App.2012) (issue of insufficiency of evidence in support of attorney’s fee award waived on appeal for failure to object to issue before trial court); McCarrell v. McCarrell, 19 So.3d 168, 172 (¶ 17) (Miss.Ct.App.2009) (waiver of issue of sufficiency of findings in support of attorney’s fee award); Concannon v. Reynolds, 878 So.2d 107, 108-09 (¶¶ 6-8) (Miss.Ct.App.2003) (refusing to review reasonableness of attorney’s fee award on appeal where appellant failed to move for amended finding, new trial, or relief from judgment). I therefore find no abuse of discretion in the chancellor’s award of attorney’s fees. Accordingly, I concur in part and dissent in part.

      . All other issues not agreed to by the parties were referred to the chancellor for a hearing on the merits.

      . See West v. West, 88 So.3d 735, 747 (¶ 57) (Miss.2012).

      . See also McKee v. McKee, 418 So.2d 764, 767 (Miss.1982) (An award of attorney's fee in divorce case to a party must be supported by findings and evidence showing the requesting party is unable to pay; McKee sets forth factors for the court to follow to use as guidelines in determining an appropriate fee.); Lindsey v. Lindsey, 219 Miss. 540, 544, 69 So.2d 203, 204 (1954) (acknowledging chancellor’s authority to award attorney’s fees in divorce cases where equity requires such).

      . See also Regency Nissan Inc. v. Jenkins, 678 So.2d 95, 103 (Miss.1995) (Supreme court recognized that an abuse-of-discretion standard of review applies to review of attorney’s fees, and found that the appellant failed to show how the award constituted an abuse of discretion; the appellant unsuccessfully argued that the trial court erred because it failed to comply with the United States Court of Appeals for the Fifth Circuit's requirements for establishing the reasonableness of attorney's fees.); Williamson v. Williamson, 81 So.3d 262, 276 (¶¶ 29-30) (Miss.Ct.App.2012) (finding appellant failed to preserve his claim of insufficiency-of-evidence supporting attorney’s fee award by failing to object before trial court; abuse-of-discretion standard applies on appeal for review of award of attorney's fees).

        . See Williamson, 81 So.3d at 276 (¶¶ 29-30) (issue of insufficiency of evidence in support of attorney's fee award waived on appeal for failure to object to issue before trial court); McCarrell v. McCarrell, 19 So.3d 168, 172 (¶ 17) (Miss.Ct.App.2009) (waiver of the issue of sufficiency of findings in support of attorney’s fee award); Concannon v. Reynolds, 878 So.2d 107, 108-09 (¶¶ 6-8) (Miss.Ct.App.2003) (refusing to review reasonableness of attorney’s fee award on appeal where appellant failed to move for amended finding, new trial, or relief from judgment).

      . In Mauck v. Columbus Hotel Co., 741 So.2d 259, 269-70 (¶ 32) (Miss.1999), the supreme court recognized that the reasonableness of an attorney's fee award lies within the court’s discretion. The supreme court also stated that the McKee factors serve as a guide for determining the reasonableness of the award; and. that the Legislature gave guidance to the courts in determining the reasonableness of attorney's fees by instructing courts to make the award based on information already before them and the courts' own opinions based upon experience and observation. Id. See Miss.Code Ann. § 9-1-41.

      . As stated, the jurisprudence pertaining to an award of attorney’s fees in domestic cases indeed requires that to support such an award, the chancellor must factually determine a party's inability to pay.

      . As acknowledged, section 9-1-41 allows the chancellor to base his orders upon evidence in the record.