author: COOKS, Judge.

text:
    Kathleen WALKER v. The SUMMIT.
    No. 14-676.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.
    W. Jay Luneau, Alexandria, LA, for Plaintiff/Applicant, Kathleen Walker.
    Lawrence B. Frieman, Bradley P. Nac-cari, Juge, Napolitano, Guilbeau, Ruli & Frieman, Covington, LA, for Defendant/Respondent, The Summit.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JIMMIE C. PETERS, Judges.
   COOKS, Judge.

li>This case involves a workers’ compensation claim which, Claimant, Kathleen Walker, filed against Defendant, The Summit, as a result of a work-related accident that occurred on July 31, 2009. Employment Risk Management Services (ERMS) was contracted by Defendant to administer the claim. Pertinent to this writ application, Defendant scheduled an appointment for Claimant to be examined by Dr. Donald Smith, a neurosurgeon, for the purpose of obtaining a second medical opinion (SMO).

Claimant’s counsel requested a copy of any and all paperwork that Claimant would be asked to fill out for the SMO. After receipt of the paperwork, Claimant’s counsel sent a letter detailing his objections to certain forms, in particular, a form titled “Medical Evaluation Consent Form.” Specifically, Claimant’s counsel explained in his letter that his client would not sign the “Medical Evaluation Consent Form” because she was not consenting to the examination, but was going to the appointment because she was legally obligated to do so. Claimant’ counsel also stated in his letter, “If you know of some precedent that requires her to sign the form, please let me know and I will consider same.” Defendant simply responded that Claimant would have to sign the form prior to the SMO.

After additional letters were sent by Claimant’s counsel reiterating his refusal to have his client sign the form, Defendant sent a letter demanding Claimant attend the SMO appointment. That letter from Defendant stated, “You can instruct your client to sign or not sign any document you want. However, she still must appear for the examination on Monday as scheduled.”

Claimant drove to Dr. Smith’s office on the appointed date. She was told by Dr. Smith’s staff she had to sign the “Medical Evaluation Consent Form.” After speaking with her attorney by telephone, Claimant refused to sign the form. Thereafter, Dr. Smith refused to examine Claimant.

|sDefendant subsequently filed a Motion to Compel in the Office of Workers’ Compensation, seeking to have Claimant ordered to sign the “Medical Evaluation Consent Form.” Following a hearing, the workers’ compensation judge (WCJ) granted Defendant’s Motion to Compel. Claimant immediately sought review of the ruling, filing a writ application with this court. This court ordered all proceedings in the matter stayed and the writ was set for oral argument.

ANALYSIS

Louisiana Revised Statutes 23:1121(A) mandates that an injured employee “shall submit himself to an examination by a duly qualified medical practitioner” at the request and expense of the employer. There is no dispute that Defendant was within its rights to have Claimant examined by Dr. Smith. The sole issue before us is whether the WCJ was correct in finding Defendant could require Claimant to sign the “Medical Evaluation Consent Form.” We find no support for the WCJ’s finding and reverse the grant of the Motion to Compel.

The “Medical Evaluation Consent Form” in question provided in its entiréty as follows:

This is to certify that I have been scheduled to undergo a medical evaluation related to my claim of injury/illness by Dr. Donald Smith, M.D.
I understand Dr. Smith is an independent medical examiner who will perform a comprehensive review of my medical records, interview, and a physical examination.
I understand this evaluation is to include my giving information about myself and my personal circumstances as well as my health.
I understand it is very important that I am honest with Dr. Smith about my symptoms and how I perceive my medical condition(s) limits me with activities on a day to day basis.
I understand Dr. Smith will perform a physical examination on the relevant parts of my body.
I understand it is very important that I give my best effort during the physical examination, and any attempt to give less than my best effort |4will be detectable by Dr. Smith and will be documented as part of my permanent medical record.
I will inform Dr. Smith if I experience an increase in pain or other symptoms during the physical examination.
I understand that Dr. Smith may recommend additional diagnostic testing prior to rendering a final medical opinion.
I understand the recommendations given by Dr. Smith are totally independent of the requesting agents.
I understand if more information becomes available at a later date, then an additional report may be required.

Claimant objected to several problems with this form. Our review of the form also identified several problems with the language contained therein. We are particularly troubled by the paragraph which requires the signee to acknowledge that Dr. Smith “is an independent medical examiner.” This simply is not so. Dr. Smith was specifically chosen by the Defendant, not the WCJ, to examine Claimant.

Of even greater concern- is the paragraph that requires the examinee “to give my best effort during the physical examination,” and that any failure to do so “will be detectable by Dr. Smith.” (Emphasis added.) It is one thing to request an examinee give their best effort during an exam, but it is quite another thing to require the examinee to grant a degree of infallibility and omnipotence to Dr. Smith in his ability to detect any substandard effort or cooperation. The absurdity of this provision is obvious. We cannot fault Claimant for her concern that putting her signature on such a form could be argued as abandoning her right in the future to contradict Dr. Smith’s opinions.

[■¡Defendant argues this form is merely acknowledging that Claimant “understands” the provisions listed; however the form is titled “Medical Evaluation Consent Form.” (Emphasis added.) Were Defendant only concerned with Claimant “understanding” these provisions, it certainly could . hand Claimant the form and not require her to sign it.

There is no statutory or jurisprudential authority that requires a Claimant to sign any type of consent form to undergo a - SMO. The only thing La.R.S. 23:1121(A) requires is that the injured employee “shall submit himself to an examination.” Accordingly, the WCJ erred in granting the Motion to Compel requiring Claimant to sign the “Medical Evaluation Consent Form.”

DECREE

Pursuant to granting the writ of certio-rari to consider this matter, we render judgment herein, reversing the ruling of the Office of Workers’ Compensation granting Defendant’s Motion to Compel. All costs are assessed to Defendant.

WRIT GRANTED AND MADE PEREMPTORY; JUDGMENT ON MOTION TO COMPEL REVERSED.

      . Louisiana Revised Statutes 23:1123 provides for the appointment of an IME by the WCJ when there is a dispute in the medical evidence. The law provides an IME’s medical conclusions should be given significant weight because the IME is an objective party. See Scott v. Wal-Mart Stores, Inc., 03-858 (La.App. 1 Cir. 2/23/04), 873 So.2d 664. Clearly, Dr. Smith was the Defendant's choice of physician and not in any way "independent” as contemplated by the statute.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    Nicole BORDELON, et ux. v. John McCABE, et al.
    Nos. 14-502.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.

      Mickey Stephens deLaup, Thomas Paul Anzelmo, Jr., Mickey S. deLaup, APLC, Metairie, LA, for Defendants/Appellants— John McCabe and Nancy McCabe.
    Terry George Aubin, Alexandria, LA, for Defendant/Appellee — Stephan Guillory.
    James Everet Brouillette, Metairie,. LA, for Plaintiff/Appellee — State Farm Mutual Automobile Insurance Co.
    Misty Shannon Antoon, Alexandria, LA, for Defendants/Appellees — City of Alexandria and Stephan Guillory.
    Derrick G. Earles, The Laborde Law Firm, Marksville, LA, for Plaintiffs/Appel-lees — Nicole Bordelon and Kenny Borde-lon.
    Emily G. Meche, Brian Caubarreaux & Associates, Marksville, LA, for Interve-nor/Appellee — Brian M. Caubarreaux.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

|tFor the reasons discussed in the consolidated case of State Farm Mutual Automobile Insurance Co., et. al. v. Nancy McCabe, et. vir., 14-501 (La.App. 3 Cir. 11/05/14), 150 So.3d 595, 2014 WL 5658075, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    Latoya CASTILLE, Individually v. LOUISIANA MEDICAL MUTUAL INS. CO., et al.
    No. 14-520.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.
    Marc W. Judice, Judice & Adley, Lafayette, LA, for Defendants/Appellees-G. Vincent Bailey, M.D. and Bailey & Elias Obstetrical Care, L.L.C.
    Charles Henry Munsterman, Alexandria, LA, for Plaintiff/Appellant-Latoya Cas-tille, Individually.
    Rene Joseph Pfefferle, Watson, Blanche, Wilson & Posner, Baton Rouge, LA, for Defendants/Appellees-Louisiana Medical Mutual Ins. Co. and Jennings American Legion Hospital.
    Jordan Z. Taylor, Townsley Law Firm, Lake Charles, LA, for Plaintiff/Appellant-Latoya Castille, Individually.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

hFor the reasons discussed in the consolidated case of Latoya Castille v. Louisiana Medical Mutual Insurance Company, et al, 14-519 (La.App. 3 Cir. 11/05/14); 150 So.3d 614, 2014 WL 5668204, the judgment of the trial court is affirmed and remanded. Costs of the appeal are assessed equally against appellant, Ms. Cas-tille, and the defendants.

AFFIRMED AND REMANDED.


author: ULYSSES GENE THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Carolyn D. DEAL.
    No. 14-1144.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.
   ULYSSES GENE THIBODEAUX, Chief Judge.

|, This matter arises ..from a judgment granting the State’s petition for mandatory preliminary injunctive relief to disqualify and enjoin the candidacy of the defendant and pursuant to an appeal by the defendant, Carolyn D. Deal, in No. 125207-E on the docket of the Sixteenth Judicial District Court, Parish of Iberia, Honorable Keith Rayne Jules Comeaux.

Taking judicial notice of the Secretary of State’s election results in the November 4, 2014 election, of the three candidates on the ballot, the appellant Carolyn Deal obtained only 9.34% of the votes and is no longer a potential candidate for district judge, thereby rendering this matter moot. Appellate courts will not review a case where only injunctive relief is sought when the need for that relief has ceased to be a justiciable issue. Verdun v. Scallon Brothers Contractors, Inc., 263 La. 1073, 270 So.2d 512 (1972). Appellate courts will not render' advisory opinions from which no practical results will follow. United Teachers of New Orleans v. Orleans Parish School Board, 355 So.2d 899 (La.1978).

Since the appellant is no longer a candidate for district judge, we hereby dismiss the appeal as moot. Judgment is hereby issued declaring this matter moot.

| Jt is further ordered that the stay is recalled; and that costs are to be borne by the appellant, Carolyn D. Deal.


author: PIERCE, Justice, KITCHENS, Justice,

text:
    Zachary POLK v. STATE of Mississippi.
    No. 2013-CA-00701-SCT.
    Supreme Court of Mississippi.
    Oct. 9, 2014.
    Rehearing Denied Dec. 4, 2014.
    Jean Sherman Cooper, Richard D. Mitchell, Canton, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, John R. Henry, Jr., attorneys for appellee.
    BEFORE WALLER, C.J., LAMAR and PIERCE, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. Zachary Polk was indicted on three counts in Oktibbeha County, Mississippi, for the sale of methylenedioxymethamphe-tamine (MDMA), hydrocodone, and al-prazolam, in violation of Mississippi Code Section 41-29-139(a)(l). Miss.Code Ann. § 41-29-139(a)(l) (Rev. 2013). Polk entered a plea of guilty as to Count I for the sale of MDMA, and he was sentenced to serve ten years in the Mississippi Department of Corrections and ordered to pay a $5,000 fine. The district attorney “retired to files”' Count II and Count III, based upon Polk entering a plea of guilty as to Count I. In January 2012, Polk received a “full, complete, and unconditional pardon” from Governor Haley Barbour.

¶ 2. Thereafter, Polk filed a petition for expungement in the Circuit Court of Ok-tibbeha County, seeking to have all records expunged relating to his earlier arrest and indictment. Polk argued that Count I of the indictment, to which he pleaded guilty, should be expunged based on Ex Parte Crisler, 159 Miss. 247, 132 So. 103 (1931). Polk also argued that Counts II and III, which were “retired to files,” should be expunged pursuant to Mississippi Code Section 99-15-57(2).

¶ 3. The trial court determined that it was without statutory or constitutional authority to expunge Polk’s record as to Count I. Regarding Counts II and III, the trial court also found that it was without statutory authority to expunge the charges. Polk appeals to this Court.

STANDARD OF REVIEW

¶'4. This Court applies a de novo standard of review when questions of law are to be considered on appeal. Brown v. State, 731 So.2d 595, 598 (Miss.1999).

DISCUSSION

¶ 5. Polk asks this Court to hold that, since his pardon “obliterates his previous conviction,” his record of conviction as to Count I should be expunged. Polk further asks this Court to hold that the trial court had statutory authority to expunge his criminal record(s) as to Counts II and III, which were retired to files. As will be explained, we cannot expunge his records as to Count I. As to Polk’s latter request, however, we find that Polk’s criminal record(s) with regard to Counts II and III, which were remanded to file, are eligible for expungement pursuant to Mississippi Code Section 99-15-26(5).

6. Criminal records in Mississip-Mississipare kept pursuant to Mississippi Code Section 45-21-1. This Court implicitly held in Caldwell v. State, 564 So.2d 1371, 1372-73 (Miss.1990) (upon rejecting claim that the circuit court has inherent power to expunge criminal records) that expunge-expungeof such records is an act of legislative grace. No common law right to the ex-ex-of criminal records exists. In re Expungement Application of G.P.B., 436 N.J.Super. 48, 50, 91 A.3d 648 (App. Div.2014).' And there is no constitutional right for such relief in either our state constitution or our federal constitution. See, e.g., Sealed Appellant v. Sealed Appel-Appel130 F.3d 695, 699 (5th Cir.1997) (“There is no [federal] constitutional basis for a “right to expungement.”) (internal quotation marks and citation omitted). A number of statutes in the Mississippi Code permit criminal defendants to apply for expungement, but none exists for expunge-expungein the case of a pardon.

¶ 7. Recognizing this, Polk relies heavily on Ex Parte Crisler, 132 So. 103, 159 Miss. 247 (Miss.1931), for the proposition that, because he received a full, complete and unconditional pardon, he is entitled to an expungement of the record for the offenses for which he was pardoned. Polk’s reliance on Crisler and its broad language, however, is to no avail.

¶ 8. At the outset, the issue addressed in Crisler, was not whether a full pardon entitles the recipient to have the records of the offense expunged, but whether a full pardon to an attorney, after conviction and sentence which included an order forever disbarring the attorney from the practice of law within the state, absolved the attorney from all consequences of an order of disbarment and entitled him to reinstatement. In finding that the pardon did entitle the recipient to reinstatement, the Court in Crisler quoted language from Jones v. Board of Registrars of Alcorn County, 56 Miss. 766 (1879), which also did not involve the question of expungement. This language reads as follows:

The doctrine of the authorities is, that “a pardon reaches both the punishment prescribed for the offence, and the guilt of the offender,” and that “it releases the punishment and blots out of existence the guilt, so that, in the eye of the law, the offender is as innocent as if he had never committed the offense.” “If granted after conviction, it removes the penalties and disabilities, and restores him (the convict) to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.” [Ex parte Garland, 71 U.S. 333, 32 How. Pr. 241, 18 L.Ed. 366, 4 Wall. 333 (1866) ] ... A pardon by the governor is an act of sovereign grace, proceeding from the same source which makes conviction of crime a ground of exclusion from suffrage. The act of absolution is of as high derivation and character as the act of proscription. The pardon must be held to rehabilitate the person in all his rights as a citizen, and to deny to any officer of the State the right to impute to him the fact of his conviction. After the pardon, he is as if he was never convicted. It shall never be said of him that he was convicted. The pardon obliterates the fact of conviction, and makes it as if it never was.

Crisler, 132 So. at 103 (quoting Jones, 56 Miss. 766 (1879)).

¶ 9. The above-quoted text primarily originates from the United States Supreme Court case Ex parte Garland, 71 U.S. 333, 32 How. Pr. 241, 18 L.Ed. 366, 4 Wall. 333 (1866), which, similar to Crisler, concerned the right of a pardoned offender to practice law before the Supreme Court. Notably, before even reaching the issue of the pardon, the Supreme Court decided the case on other grounds-finding Congress’s act unconstitutional under “bill of attainder” and “ex post facto” bases. Garland, 71 U.S. at 377.

¶ 10. In addressing Garland ⅛ broad language, the District of Columbia Court of Appeals explained:

[Garland’s] discussion of the presidential pardon was unnecessary for its disposition of the case. By the time Justice Field reached the issue of the pardon, the case had already been decided. Irrespective of the pardon, the statute was deemed invalid on other constitutional grounds. The courts, both federal and state, have thus accurately described the “blotting out” discussion in Garland as “dictum.”

In re Abrams, 689 A.2d 6, 17 (D.C.App. 1997). See also State v. Boykin, 138 Ohio St.3d 97,103-04, 4 N.E.3d 980 (2013) (finding Garland’s language that “a pardon reaches both the punishment prescribed for the offence, and the guilt of the offender” as “simply dicta”); R.J.L. v. State, 887 So.2d 1268, 1275 (Fla.2004) (recognizing Garland’s language as dicta and holding that a pardon does not have the effect of eliminating guilt or the fact of conviction); State v. Blanchard, 100 S.W.3d 226 (Tenn.Crim.App.2002) (same); U.S. v. Noonan, 906 F.2d 952, 958 (3rd Cir.1990) (finding that Garland’s language was clearly dictum and holding that “a pardon does not vitiate guilt”); Bjerkan v. United States, 529 F.2d 125, 128 n. 2 (7th Cir.1975) (pardon does not “restore the offender to a state of innocence in the eye of the law as was suggested” in Garland).

¶ 11. The Supreme Court also has greatly narrowed Garland’s statement(s) regarding the effect of a pardon. See Nixon v. United States, 506 U.S. 224,113 S.Ct. 732,112 L.Ed.2d 1 (1993) (“the granting of a pardon is in no sense an overturning of a judgment of conviction by some other tribunal; it is an executive action that mitigates or sets aside 'punishment ”) (emphasis added); Burdick v. United States, 236 U:S. 79, 94, 35 S.Ct. 267, 59 L.Ed. 476 (1915) (a pardon “carries an imputation of guilt; acceptance a confession of it”); Carlesi v. New York, 233 U.S. 51, 59, 34 S.Ct. 576, 58 L.Ed. 843 (1914) (in sentencing a defendant as a habitual offender, a court may consider “past offenses committed by the accused as a circumstance of aggravation, even although for such past offenses there had been a pardon granted”); Angle v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 151 U.S. 1, 19, 14 S.Ct. 240, 38 L.Ed. 55 (1894) (although an executive pardon relieves the wrongdoer from public punishment, it does not relieve the wrongdoer from civil liability).

¶ 12. Here, we read Crisler no further than that to which the Crisler Court ultimately limited its holding: “What we here hold, and all that we hold, is that a full pardon absolves an attorney at law from all the consequences of an order of disbarment ... as part of the punishment for the commission of a crime.” Crisler, 132 So. at 104 (emphasis added).

¶ 13. Having studied the matter before us, we find no convincing authority that a gubernatorial pardon automatically entitles the recipient to have his or her criminal record expunged. To us, an unconditional pardon solely removes all legal punishment for the offense and prevents any future legal disability based on that offense. It does not edit history. In the words of Boykin, supra, “what’s done is done.” Boykin, 4 N.E.3d at 986. See also State v. Skinner, 632 A.2d 82, 84-85 (Del. 1993) (“A pardon involves forgiveness[,] ... not forgetfulness!,] • • • ⅛ does not wipe the slate clean.”) (inner quotation marks and citation omitted). Expungement from official records all records relating to an arrest, indictment, trial, and finding of guilt, in order to restore one to the status occupied prior thereto, is an altruistic objective for the legislative branch to contemplate and prescribe.

¶ 14. There being no statutory basis for expungement of the record of the criminal conviction for which Polk was pardoned, the trial court correctly denied Polk’s petition to expunge the record(s) pertaining to his criminal conviction.

¶ 15. As to Polk’s criminal records pertaining to Counts II and III, which were remanded to file based on Polk’s guilty plea, we find that those records are eligible for expungement pursuant to Mississippi Code Section 99-15-26(5).

CONCLUSION

¶ 16. For the aforementioned reasons, we affirm in part and reverse in part the judgment of the trial court, and we remand this case to Circuit Court of Oktib-beha County for further proceedings consistent with this opinion.

¶ 17. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

WALLER, C.J., RANDOLPH, P.J., LAMAR AND KING, JJ., CONCUR. KITCHENS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., CHANDLER AND COLEMAN, JJ.

KITCHENS, Justice,

concurring in part and dissenting in part:

¶ 18. The majority is correct to hold that Counts II and III of Polk’s indictment, having been “retired to the files,” are eligible for expungement pursuant to Mississippi Code Section 99-15-26(5) (Supp.2014). But under the law of this State, a full, complete, and unconditional gubernatorial pardon as to Count I, the charge of sale of methylenedioxymeth-amphetamine to which Polk pled guilty, entitles him to expungement. I therefore concur in part and dissent in part.

¶ 19. Polk received the following pardon on January 10, 2012:

NOW, THEREFORE, I, Haley Barbour, Governor of the State of Mississippi, under and by virtue of the authority vested in me by the Constitution and Laws of this State, do hereby grant to Zachary Kane Polk a full, complete, and unconditional pardon for the crime and conviction named herein; and henceforth, shall be absolved from all legal consequences of this crime and conviction.

(Emphasis added.) In 1878, this Court adopted the existing jurisprudence of the United States Supreme Court on the subject of pardons:

The doctrine of the authorities is, that “a pardon reaches both the punishment prescribed for the offence, and the guilt of the offender,” and that “it releases the punishment and blots out of existence the guilt, so that, in the eye of the law the offender is as innocent as if he had never committed the offense.” “If granted after conviction, it removes the penalties and disabilities, and restores him [the convict] to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.” Ex parte Garland, [71 U.S. 383, 18 L.Ed. 366,] 4 Wall. 333, 380 [ (1866) ]; United States v. Padelford, [76 U.S. 531, 19 L.Ed. 788,] 9 Wall. 531 [(1869)]; United States v. Klein, [80 U.S. 128, 20 L.Ed. 519,] 13 Wall. 128 [ (1871) ]; Car-lisle v. United States, [83 U.S. 147, 21 L.Ed. 426,] 16 Wall. 147 [ (1872) ]; Knote v. United States, 95 U.S. 149[, 5 Otto 149, 24 L.Ed. 442 (1877) ]. In the case last cited, it is said that “a pardon is an act of grace by which an offender is released from the consequences of his offence, so far as such release is practicable and within the control of the pardoning power, or of officers under its direction.” “In contemplation of law, it so far blots out the offence.... ”

Jones v. Bd. of Registrars of Alcorn County, 56 Miss. 766, 768, 31 Am. Rep. 385 (1878) (emphasis added). In 1931, this Court reiterated and affirmed the broad rule from Jones in Ex Parte Crisler:

A pardon by the governor is an act of sovereign grace, proceeding from the same source which makes conviction of crime as ground of exclusion from suffrage. The act of absolution is of as high derivation and character as the act of proscription. The pardon must be held to rehabilitate the person in all his rights as a citizen, and to deny to any officer of the state the right to impute to him the fact of his conviction. After the pardon, he is as if he was never convicted. It shall never be said of him that he was convicted. The pardon obliterates the fact of conviction, and makes it as if it never was.

Ex Parte Crisler, 159 Miss. 247, 250, 132 So. 103 (1931) (quoting Jones, 56 Miss, at 768) (emphasis added).

¶ 20. The majority attempts to efface the memory of this jurisprudence by distinguishing Crisler. The Crisler case involved an attorney who was seeking annulment of an order of disbarment entered following a conviction of embezzlement. Crisler, 159 Miss, at 249, 132 So. 103. It was held in that case that “a full pardon absolves an attorney at law from all the consequences of an order of disbarment ... as part of the punishment for the commission of a crime.” Id. at 251, 132 So. 103. Nevertheless, Crisler approvingly reiterated the rule from Jones, in which this Court restored suffrage to a person pardoned of his crime by the Governor. Jones, 56 Miss, at 771. The rule articulated in Jones emanated from the jurisprudence of the United States Supreme Court, many cases of which involved the extent of the presidential pardons extended by Presidents Lincoln and Johnson to persons involved in rebellion against the United States during the 1860s. Chief Justice Salmon P. Chase opined that, “[i]n the case of Garland, this court held the effect of a pardon to be such ‘that in the eye of the law the offender is as innocent as if he had never committed the of-fence’....” U.S. v. Padelford, 76 U.S. 531, 542, 19 L.Ed. 788, 9 Wall. 531 (1869) (quoting Garland, 4 Wall, at 380, 18 L.Ed. 366). Logic dictates that, in such case, there would be no public record.

¶ 21. In spite of the wide latitude with which this Court historically has treated the effect of gubernatorial pardons, the majority today incorrectly and unnecessarily restricts their scope, relying on authority from jurisdictions with more restrictive standards than Mississippi observes. The majority relates that “[t]he Supreme Court has also greatly narrowed Garland’s statements) regarding the effect of a pardon” (citing Nixon v. United States, 506 U.S. 224, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993)). Indeed, various state and federal courts hold that the broad Garland language has been declared to be dicta, now disregarded by the United States Supreme Court. See, e.g., In re Abrams, 689 A.2d 6, 17 (D.C. 1997). But, even if the Garland language subsequently has been rendered dicta by the Supreme Court and other courts, its more lenient standard remains viable amid the common law of this State. See Crisler, 159 Miss, at 250, 132 So. 103; Jones, 56 Miss, at 768.

¶ 22. The majority additionally quotes language from the case of Burdick v. United States, 236 U.S. 79, 94-95, 35 S.Ct. 267, 59 L.Ed. 476 (1915), for the proposition that the language in Garland since has been disregarded. In that case, President Woodrow Wilson offered to Burdick “a full and unconditional pardon for all offenses against the United States which he ... has committed or may have committed” in exchange for Burdick’s testimony before a federal grand jury investigating alleged customs fraud. Burdick, 236 U.S. at 85, 35 S.Ct. 267. Burdick refused the pardon, having been convicted of no crime. Id. at 87, 35 S.Ct. 267. His continued refusal to testify before the grand jury resulted in an adjudication of contempt and incarceration. Id. at 86-87, 35 S.Ct. 267. The United States Supreme Court, which ultimately ordered Burdick discharged from custody, distinguished legislative immunity and a presidential pardon:

The latter carries an imputation of guilt; acceptance a confession of it. The for- ' mer has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it.

Id. at 94, 35 S.Ct. 267. Burdick, which involved an unaccepted, preconviction pardon, thus has no bearing on the question of whether a pardon entitles the pardonee to an expungement.

¶23. At the time the pardon issued, Polk, a former drug abuser now employed at the Betty Ford Clinic in Rancho Mirage, California, had not been incarcerated since 2009. Consequently, Polk’s pardon, which proclaims that it is “full, complete, and unconditional,” is constricted by this Court to a mere pretense of clemency, a fiction having no legal effect whatsoever. The majority opines that “an unconditional pardon solely removes all legal punishment for the offense and prevents any future legal disability based on that offense. It does not edit history.” But a record of conviction is a “punishment,” not unlike the restrictions on a person’s liberty which may accompany conviction.

¶ 24. Mississippi Code Section 99-15-26(5) (Supp.2014) provides that: “[u]pon petition therefor, the court shall expunge the record of any case in which an arrest was made, the person arrested was released, and the case was dismissed or the charges were dropped or there was no disposition of such case.” Coupled with the broad effect of a gubernatorial pardon under the common law of this State, which “makes [the fact of conviction] as if it never was,” this statute mandates ex-pungement. Crisler, 159 Miss, at 250, 132 So. 103 (quoting Jones, 56 Miss, at 769).

¶ 25. In light of the broad effect of gubernatorial pardons under the common law of this State and the statute which mandates expungement, I would hold that the Circuit Court of Oktibbeha County possessed authority to expunge Polk’s record of conviction and erred by not so doing. Respectfully, I concur in part and dissent in part.

DICKINSON, P.J., CHANDLER AND COLEMAN, JJ., JOIN THIS OPINION.

      . In Jones, the question presented was whether a postmaster, convicted of embezzling federal funds, but pardoned by the President of the United States, is restored to his right of suffrage (the right to vote in this State). Jones, 56 Miss. 766.

      . Garland was an Arkansas attorney admitted to practice before the United States Supreme Court prior to the Civil War. Garland, 71 U.S. at 336. After the war, Congress passed an act requiring any person seeking to practice before a United States court to take an oath affirming that he neither took up arms against the United States nor aided the Confederacy. Id. at 334-35. Garland received a presidential pardon in 1865 for offenses committed by taking part in the rebellion. He presented the pardon to the Court and requested that he be admitted to practice without having to take the oath. Id. at 336-37.

      . Further, the State points out in its brief that an expungement would not "remove the criminal record from every database. Truth is the arrest, indictment and the conviction will always show up in background checks. The power of an expungement order is only directed at governmental agencies." If it is true that the criminal record is readily obtainable by other means, this substantially ameliorates the State’s concern over expungement of the record of Polk's criminal history. Indeed the State’s nerves can be soothed further by Mississippi Code Section 9-7-139 (Rev. 2002), which requires the maintenance of the pardon itself: ”[t]he county shall furnish and the circuit clerk shall maintain a permanent record of pardons and the circuit clerk may certify the fact of any recorded pardon for use in any court or agency, state or federal.”


author: JAMES, J.,

text:
    Estus James SMITH a/k/a James Estus Smith a/k/a “Outlaw” a/k/a James Smith, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00233-COA.
    Court of Appeals of Mississippi.
    April 1, 2014.
    Rehearing Denied Aug. 26, 2014.
    Certiorari Denied Nov. 20, 2014.

      Estus James Smith, appellant, pro se.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before LEE, C.J., ROBERTS and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Estus James Smith was convicted of murder and robbery in the Lamar County Circuit Court. On May 15, 2003, Smith filed a motion for post-conviction relief (PCR) that was summarily dismissed by the trial court. ’ The dismissal was affirmed by this Court. Smith filed a second PCR motion in May 2012. The trial court summarily dismissed the motion and we affirmed. Smith filed a third PCR motion on November 27, 2012, which was also dismissed by the trial court. Smith appeals the most recent dismissal raising the following issues: (1) whether he had ineffective assistance of counsel and (2) whether double jeopardy applies. Finding no error in the trial court’s judgment, we affirm.

FACTS

¶ 2. On June 10, 1998, Estus James Smith was indicted for capital murder in the Circuit Court of Lamar County. The indictment was amended to change the charge from capital murder to murder and robbery, and Smith entered a plea of guilty. During the sentencing hearing held the following week, Smith attempted to withdraw his guilty plea. However, the trial court denied his request and sentenced Smith to life on the murder charge and fifteen years on the robbery charge, with the sentences to run consecutively in the custody of the Mississippi Department of Corrections.

¶ 3. On May 15, 2003, Smith filed a PCR motion, which the trial court dismissed. Smith then appealed, and we affirmed the judgment of the trial court.

¶ 4. In May 2012, Smith filed a second PCR motion, which the trial court also dismissed. Smith appealed, and we affirmed.

¶ 5. On November 27, 2012, Smith filed a third PCR motion. The trial court dismissed the motion, finding it a successive writ that was also time-barred. Smith appeals.

STANDARD OF REVIEW

¶ 6. Generally, “[w]e review the dismissal or denial of a PCR motion for abuse of discretion. We will only reverse if the trial court’s decision is clearly erroneous. When reviewing questions of law, our standard is de novo.” Hughes v. State, 106 So.3d 836, 838 (¶4) (Miss.Ct. App.2012).

DISCUSSION

¶ 7. Smith raises two issues on appeal. First, he argues that he received ineffective assistance of counsel because his lawyers failed to mention that he underwent brain surgery the year before he entered his guilty plea. According to Smith, his lawyers were also ineffective because they allowed for his indictment to be amended to correct his name. Second, Smith argues that double jeopardy should apply to his case. However, the dispositive issue is whether the trial court erred in dismissing Smith’s PCR motion.

¶ 8. Smith filed his first PCR motion on May 15, 2003. However, the motion was dismissed on September 18, 2003. Smith appealed and we affirmed the decision to dismiss the motion. See Smith v. State, 910 So.2d 635, 640 (¶ 29) (Miss.Ct.App. 2005). Over nine years later, Smith then filed two more PCR motions in the same year. Both motions were dismissed by the trial court, which found that the motions were successive writs and time-barred.

¶ 9. Where the PCR movant has pled guilty, the PCR motion must be filed within three years after the entry of the judgment of conviction. Miss.Code Ann. § 99-39-5 (Supp.2013). Leave to file an out-of-time appeal will be granted when a prisoner is effectively denied his right to perfect his appeal throufh no fault of his own. Williams v. State, 24 So.3d 360, 363 (¶ 8) (Miss.Ct.App.2009). Smith entered his guilty plea in 2000, and the PCR motion was filed in 2012, nine years after the limitations period expired. Smith’s cited reasons for appealing out of time were limited resources and lack of education. We have held a “petitioner’s pro se status and ignorance of the law alone are wholly insufficient to establish cause.” Id. at 364 (¶ 8). Thus, we find that Smith’s reasons are insufficient to permit the filing of the third PCR motion.

¶ 10. Moreover, an order dismissing or denying relief “is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article.” Miss.Code Ann. § 99-39-23(6) (Supp.2013). However, “[ejrrors affecting fundamental constitutional rights are excepted from the procedural bars of the Uniform Post-Conviction Collateral Relief Act.” Hughes, 106 So.3d at 839 (¶ 8). In light of this rule, we have further held that “mere assertions of constitutional rights violations do not suffice to overcome the procedural bar.” Id. Smith makes assertions without any evidence to substantiate those assertions. We find that there are no applicable exceptions to the successive-writ bar. Therefore, Smith’s PCR motion is barred.

CONCLUSION

¶ 11. Smith’s second and third PCR motions were filed over nine years after the expiration of the limitations period. Smith does not offer a sufficient explanation for why his most recent PCR motion was filed outside of the statutory time period. Thus, Smith’s PCR motion is time-barred. Also, Smith’s PCR motion is a successive writ that does not fall within any exception, so it is procedurally barred for this reason as well. Accordingly, we affirm the cirdKt court’s dismissal of Smith’s PCR motion.

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

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

      . See Smith v. State, 126 So.3d 1024, 1026 (¶ 8) (Miss.Ct.App,2013). The State's brief, however, makes no mention of this opinion.

      . Smith filed a notice of an out-of-time appeal on November 27, 2012, which the trial court treated as a PCR motion.


author: MAXWELL, J.,

text:
    Kevin M. ATKINS, Michael Butler, Phillip Crapps, James Kelly, Jr., Dennis Huff and Bobbie Williams, Appellants v. OLD RIVER SUPPLY, INC., Appellee.
    No. 2013-CA-01248-COA.
    Court of Appeals of Mississippi.
    April 8, 2014.
    Rehearing Denied Aug. 12, 2014.
    Certiorari Denied Nov. 20, 2014.

      Daniel Dewayne Ware, Magee, attorney for appellants.
    Robert E. Sanders, Jackson, attorney for appellee.
    Before LEE, C.J., ISHEE and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. While the Federal Fair Labor Standards Act (FLSA) creates an entitlement to overtime wages, it exempts from that entitlement mechanics and partsmen for nonmanufacturing establishments like Old River Supply, Inc. — a business primarily engaged in selling Volvo trucks. The appellants in this case concede they were either mechanics or partsmen for Old River. Yet despite what the exemption says, they insist — based legislative history and the FLSA’s undergirding social policy— they are entitled to overtime under the FLSA.

¶ 2. But when a statute is clear and unambiguous, we must apply the statute as written. And applying the FLSA’s exemption to the undisputed facts, we agree with the lower court that the employees’ claim for overtime wages under the FLSA fails as a matter of law. Thus, we affirm the grant of summary judgment in Old River’s favor.

Background

¶ 3. Kevin M. Atkins, Michael Butler, Phillip Crapps, James Kelly Jr., Dennis Huff, and Bobbie Williams (“the employees”) are former employees of Old River. Old River is an authorized dealer of Volvo commercial trucks. In addition to selling trucks, Old River also services commercial trucks and trailers. The employees all worked as either mechanics or partsmen in the “trailer shop” — the service side of Old River’s business.

¶ 4. The employees claim that, even though they consistently worked- more than forty hours per week, they were only paid their regular hourly rate, never overtime. In November 2011, the employees sued Old River to recover overtime wages under the FLSA. The FLSA creates the right for “any one or more employees” to maintain an action “in any Federal or State court of competent jurisdiction.” 29 U.S.C. § 216(b) (2012). And here, the employees opted to file suit in the County Court of Rankin County.

¶ 5. Under the FLSA, an employer cannot employ an employee for more than forty hours a week unless it pays the employee overtime — at least equal to 150% of his regular rate — for the additional hours. 29 U.S.C. § 207(a)(1) (2012). The FLSA’s overtime entitlement, however, has many exceptions. See 29 U.S.C. § 207; 29 U.S.C. § 213 (2012).

¶ 6. Relevant to this case is the exemption of certain sales and service employees of car and truck dealerships. Under section 213(b)(10)(A), section 207’s overtime requirement “shall not apply” to “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements,'if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers!.]” 29 U.S.C. § 213(b)(10)(A); see also 29 U.S.C.. § 213(b)(10)(B) (extending exemption also to “any salesman primarily engaged in selling trailers, boats, or aircraft, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling trailers, boats, or aircraft to ultimate purchasers”).

¶ 7. Claiming the employees fell under this exemption, Old River moved for summary judgment. The facts surrounding the nature of Old River’s business and the employees’ work activities were not in dispute. The employees did not contest that Old River was a nonmanufacturing establishment with more than half of its gross sales coming through the sale of trucks to ultimate purchasers. See 29 U.S.C. § 213(b)(10)(A); 29 C.F.R. § 779.372(d) (2013) (interpreting “primarily engaged,” as applied to the employer, to mean “that over half of the establishment[’]s annual dollar volume of sales made or business done must come from sales of the enumerated vehicles”). And the employees admitted they were either mechanics or parts-men in Old River’s service department, who spent the majority of their time servicing trucks or requisitioning and dispensing parts to service trucks. See 29 U.S.C. § 213(b)(10)(A); 29 C.F.R. § 779.372(d) (interpreting “primarily engaged,” as applied to the employee, as meaning that “the major part or over 50 percent of the salesman’s, partsman’s, or mechanic’s time must be spent in selling or servicing the enumerated vehicles”).

8. “The determination of wheth-whethan employee falls within the scope of a FLSA exemption is ultimately a legal question.” Walton v. Greenbrier Ford, Inc., 370 F.3d 446, 450 (4th Cir.2004) (cit-(citIcicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 713-14, 106 S.Ct. 1527, 89 L.Ed.2d 739 (1986)). And the county court found, as a matter of law, the employees fell under the FLSA’s dealership exemp-exempand, thus, had no claim for overtime. So the court granted summary judgment in favor of Old River. See M.R.C.P. 56(c) (directing the trial court to grant a motion for summary judgment when “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”).

¶ 9. The employees appealed to the Rankin County Circuit Court, which affirmed. The employees then further appealed to this court, which reviews the grant of summary judgment de novo. See Bradley v. Kelley Bros. Contractors, Inc., 117 So.3d 331, 336 (¶21) (Miss.Ct.App. 2013) (citing Titan Indem. Co. v. Estes, 825 So.2d 651, 654 (¶ 11) (Miss.2002)). But we must apply the statute as written. City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992); see also Garcia-Carias v. Holder, 697 F.3d 257, 263 (5th Cir.2012). After review, we likewise reject the employees’ argument that the exemption should not apply.

Discussion

¶ 10. The sole issue on appeal is whether the employees were exempt from FLSA’s overtime entitlement based on section 213(b)(10). This exemption, like other FLSA exemptions, is “to be narrowly construed,” with “[t]he burden of proving the applicability of a claimed exemption” falling on the employer — in this case, Old River. Smith v. City of Jackson, 954 F.2d 296, 298 (5th Cir.1992) (citing Brennan v. Coming Glass Works, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974)). We find Old River met its burden. Because the employees concede that they were either mechanics or partsmen primarily engaged in servicing trucks and that they were employed by Old River, a nonmanufacturing establishment primarily engaged in selling trucks to ultimate purchasers, the exemption applies. See 29 U.S.C. § 207(b)(10)(A).

¶ 11. Still, the employees ask us to take an additional step and look beyond the statute’s unambiguous language. They argue that, based on a federal regulation, the exemption requires the trucks serviced by the mechanics and partsmen be trucks sold by the dealership. They also claim that, based on legislative history, the exemption additionally requires the mechanics and partsmen be paid a commission. But we must apply the statute as clearly written. See City of Natchez, 612 So.2d at 1089; see also Garda-Carias, 697 F.3d at 263. For the following reasons we reject the employees’ argument that they should not be exempt.

I. Servicing-Trucks Requirement

¶ 12. According to the employees, because the exemption is for certain employees of truck dealerships, they had to have worked for the “dealership” — meaning Old River’s sales department — in order to be exempt. And because they worked exclusively in the “trailer shop” — the service department — they fall outside the exemption.

¶ 13. While the employees are correct that the exemption does not apply to each and every employee of a dealership, it is clear the exemption is not just applicable to those employees who work in the sales department. By using the phrase “primarily engaged in the business of selling” when referring to the dealership, the exemption acknowledges that dealerships do more than just sell cars. 29 U.S.C. § 213(b)(10)(A). So what matters is that the dealership be primarily engaged in selling vehicles, and not simply selling vehicles to a limited extent. See Donovan v. Bereuter’s, Inc., 704 F.2d 1034, 1035 (8th Cir.1983).

¶ 14. And according to the Department of Labor’s interpretive regulation, employees do not have to work in the same department — or even building — where the trucks are being sold. Rather, “[t]he exemption is intended to apply to employment by such an establishment of the specified categories of employees even if they work in physically separate buildings or areas[.]” 29 C.F.R. § 779.372(b)(l)(ii). As “long as they are employed in a department which is functionally operated as part of the dealership,” the exemption applies. Id. Here, Old River operated its service department as part of its truck dealership. So while its work was performed in two separate buildings, Old River remained only one business. And because the business was “primarily engaged in the business of selling” trucks, Old River qualified for the exemption. 29 C.F.R. § 779.372(b)(1)(h), (d).

¶ 15. Further, by using the phrase “primarily engaged in selling or servicing” when referring to the salesmen, mechanics, and partsmen, the statute also encompasses employees who work exclusively in the service side of the business. 29 U.S.C. § 213(b)(10)(A) (emphasis added); Brennan v. Deel Motors, 475 F.2d 1095, 1097 (5th Cir.1973) (holding salesmen who do not sell cars but instead exclusively work in the service department fall under the exemption). Thus, for the exemption to apply, the salesmen, mechanics, or parts-men must be primarily involved in either selling or servicing vehicles.

¶ 16. This was the issue in McBeth v. Gabrielli Truck Sales, Ltd., 768 F.Supp.2d 383, 388 (E.D.N.Y.2010), a federal district court opinion from New York that the employees argue should control. In that case, the employee suing for overtime was a “partsman,” as defined by the Department of Labor. Id. (citing 29 C.F.R. § 779.372(c)(2)). But he was not primarily engaged in servicing trucks. Nor did he supply parts to the service department. Instead, he worked in a department of the truck dealership selling parts directly to consumers. Because the partsman neither sold nor serviced trucks for the dealership, he was not exempt. Id.

¶ 17. The employees here argue McBeth proves they are outside of the exemption because they, like the parts-man in McBeth, worked with customers who were not buying trucks. But McBeth actually hurts their argument, since it implies the partsman would have been exempt had he worked in the service department, like the employees did here. See id.

¶ 18. And McBeth does not hold that, to be excepted from overtime-pay requirements, the mechanics and partsmen must primarily service trucks that were initially sold by the dealership. Nor does the Department of Labor’s interpretive regulation support this logic. Under the regulation, for a salesman, mechanic, or partsman to meet the “primarily engaged” requirement, all that is required is that “the major part or over 50 percent of the salesman’s, partsman’s, or mechanic’s time must be spent in selling or servicing the enumerated vehicles.” 29 C.F.R. § 779.372(d) (interpreting 29 U.S.C. § 213(b)(10)).

¶ 19. Though the employees argue the term “enumerated vehicles” refers to vehicles actually sold by the dealership, undefined words in statutes must be given their ordinary meaning. Taniguchi v. Kan Pacific Saipan, Ltd., — U.S. —, 132 S.Ct. 1997, 2002, 182 L.Ed.2d 903 (2012). And the ordinary meaning of “enumerated” means “listed.”

¶20. We find the obvious, reasonable interpretation of the phrase “enumerated vehicles” in the federal regulation means the types of vehicles listed in both the statute and regulation — automobiles, trucks, farm implements, trailers, boats, and aircraft. 29 U.S.C. § 213(b)(10); 29 C.F.R. § 779.372(c). Because the employees admit they spent more than fifty percent of their time servicing trucks, they met the exemption’s “primarily engaged ... in selling or servicing” requirement. See 29 C.F.R. § 779.372(d).

II. No Commission Requirement

¶21. The employees concede neither the exemption nor the interpretive regulation says anything about requiring the salesmen, mechanics, or partsmen paid on commission to be exempt. But citing legislative history, they insist that commission or other incentive-baséd pay is a requirement of the exemption. Because the intent of section 213(b)(10) was to exempt salesmen, partsmen, and mechanics paid on commission, and because the employees were not paid on commission, they suggest the exemption does not apply.

¶ 22. However, “[t]he starting point for interpreting a statute is the language of the statute itself.” United States v. Kay, 359 F.3d 738, 742 (5th Cir.2004) (quoting Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980)). And legislative history is only to be utilized when there is ambiguity in the statute. Id. at 743. Here, it seems plain enough that it is how the employee spends his time, not how he is remunerated, that controls whether the exemption applies. See Walton, 370 F.3d at 452-53 (rejecting employee’s argument that his job title should be given greater weight “than the duties he actually performed”); McBeth, 768 F.Supp.2d at 388 (holding “partsman” was not exempt because his job duties did not include servicing vehicles).

¶ 23. The employees cite Deel Motors, in which the United States Court of Appeals for the Fifth Circuit did delve into the legislative history of the dealership exemption. Deel Motors, 475 F.2d at 1097. But in that case, the court found an ambiguity regarding whether a service salesman (versus a vehicle salesman) fell within the intended group of exempt salesmen. Since the legislative history indicated the exemption was intended to preserve “the traditional incentive pay plans and irregular hours” of salesmen and mechanics of dealerships, and because the salesman in question received incentive-based pay and worked irregular hours, the Fifth Circuit found the service salesman was exempt. Id. at 1098 & n. 4. Thus, in cases like Deel Motors where is it unclear if a salesman, partsman, or mechanic falls under the exemption, how the employee is páid and whether his work hours are regular or driven by volume have been factors courts have considered. See Walton, 370 F.3d at 450-51 (holding that service salesman paid weekly wage plus commission fell under exemption); McBeth, 768 F.Supp.2d at 388-90 (holding that partsman who worked regular retail hours in parts store that sold directly to customers did not fall under the exemption). But the Fifth Circuit and courts relying on Deel Motors have not gone so far as to say commission-based remuneration is a prerequisite of the exemption. Instead, it is merely an indicator the employee was intended to be exempt.

¶ 24. We are not faced here with the same ambiguity as in Deel Motors or McBeth. In fact there are no ambiguities in play. As discussed in section I, mechanics and partsmen who service trucks are clearly exempt. So we do not go beyond the language of the statute to the legislative history. Section 213(b)(10) is silent about how an employee is paid and the regularity of his hours. Compare 29 U.S.C. § 213(b)(10) with § 207(i) (carving out a separate exemption for commission-based employees). Therefore, the fact that the employees were not paid a commission does not alter our finding that the exemption applies.

¶25. The employees contend this is unfair — that they should get either overtime or a commission. To work more than forty hours a week earning “straight time,” they claim, violates the spirit, though not the letter, of the FLSA. But it is not this court’s role to question if the exemption is good policy. Instead, our job is to enforce the exemption as clearly written. Because the employees were exempt under the FLSA from the entitlement to overtime, we affirm the grant of summary judgment in favor of their employer, Old River.

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

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR. GRIFFIS, P.J., NOT PARTICIPATING.

      . 29 U.S.C. § 207(a)(1) (2012); 29 U.S.C. § 213(b)(10)(A) (2006).

      . City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992); see also Garcia-Carias v. Holder, 697 F.3d 257, 263 (5th Cir.2012).

      . Old River concedes this point, which is why it paid one of the employees overtime before he became a partsman in the service department.

      . The Secretary of Labor disagrees with the United States Court of Appeals for the Fifth Circuit and interprets the exemption' as being limited to "salesmen who sell and partsmen and mechanics who service vehicles.” 79 Fed.Reg. 18838 (April 5, 2011); see also 29 C.F.R. § 779.372(c)(1) (defining "salesman” as being limited to employees who sell vehicles). The Fourth Circuit has rejected this portion- of the interpretive regulation as unreasonably restrictive and inconsistent with the statute’s mandate. Walton, 370 F.3d at 452 (rejecting definition of "salesman” in 29 C.F.R. § 779.372(c)(1)); see also Thompson v. J.C. Billion, Inc., 368 Mont. 299, 294 P.3d 397, 402 (¶ 23) (2013) (holding that "[a] plain, grammatical reading of 29 U.S.C. § 213(b)(10)(A) makes clear that the term 'salesman' encompasses a broader category of employees than those only engaged in selling vehicles”). Instead, the Fourth Circuit follows the Fifth Circuit's interpretation — that the exemption applies to salesmen who are primarily engaged in servicing automobiles, trucks, or farm implements.
      But neither the Secretary of Labor nor any court has taken the employees’ position — that the exemption is limited to partsmen and mechanics who work on vehicles sold by the dealership. In contrast to "salesman,” when defining "partsman” and "mechanic” for purposes of the statute, the interpretative regulation does not require these roles to be related to vehicle sales. Compare 29 C.F.R. § 779.372(c)(1) with 29 C.F.R. § 779.372(c)(2), (3).

      . See American Heritage Dictionary of the English Language 616 (3d. ed.1992) (defining the verb "enumerate” as "[t]o count off or name one by one; list”).

      . See note 4, supra, for a discussion of how the Secretary of Labor resolves this ambiguity differently than the Fifth Circuit.


text:
    Matthew Thomas RICKMAN a/k/a Matthew Rickman, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-00388-COA.
    Court of Appeals of Mississippi.
    May 6, 2014.
    Rehearing Denied Aug. 26, 2014.
    Certiorari Denied Nov. 20, 2014.

      Office of State Public Defender by George T. Holmes, Justin Taylor Cook, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, Haldon J. Kittrell, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Matthew Rickman was convicted of aggravated assault on a law enforcement officer after he severely beat a jailer with a sock full of bars of soap, then repeatedly kicked the unconscious man, breaking his hip and pelvis. Rickman now appeals challenging the sufficiency of the evidence. Based on video-surveillance footage and Rickman’s in-court admission to beating the jailer, as well as testimony from the victim and that of another witness who discovered the bloody crime scene, we find the evidence indisputably and overwhelmingly supports Rickman’s aggravated-assault conviction. We affirm.

Facts and Procedural History

¶ 2. On February 20, 2012, Rickman was detained in the Millard Correction Center in Pearl River County awaiting trial on several felony charges. While in jail, Rickman deliberately jammed the locking mechanism on his cell with a toothbrush and piece of a t-shirt. When night-shift supervisor Enos Van Amburgh, a corrections officer with the Pearl River County Sheriffs Department, walked past Rick-man’s jail cell, Rickman opened the door and hit Van Amburgh over the head with a long sock containing solid bars of soap. Van Amburgh fell to the ground, losing consciousness, and Rickman continued hitting and kicking him.

¶ 3. On June 14, 2012, Rickman was indicted, as a habitual offender, for aggravated assault on an officer. At trial, which began on January 9, 2013, Captain Butch Raby, the chief of security, testified that when he arrived shortly after the attack, he saw a trail of blood on the floor and blood splattered on the walls and ceilings. Van Amburgh’s left eye was blue and swollen shut. He also had abrasions and scratches on his head and hands and was bleeding from his nose. Photographs confirming Van Amburgh’s injuries and blood loss were admitted into evidence. A jailhouse video capturing the violent assault was also admitted and played for the jury.

¶ 4. Van Amburgh testified at trial. He remembered being taken to the hospital after the assault but was unsure how long the assault lasted because he blacked out after the first blow to his head. His left eye was permanently damaged, his nose was broken, and he had several cuts. While X-rays were negative, he explained an MRI later confirmed he had a fractured hip and pelvic bone. Van Amburgh used crutches for four months and missed five months of work. And he testified to having chronic pain in his right hip and pelvis and suffering from post-traumatic stress disorder after the assault.

¶5. Rickman elected to testify in his defense. He admitted devising a plan to assault Van Amburgh because he did not like the jailer. According to Rickman, he attacked Van Amburgh hoping he would quit his job.

■ ¶ 6. The jury found Rickman guilty of aggravated assault, on a law enforcement officer. After an unsuccessful motion for a judgment notwithstanding the verdict (JNOV) or a new trial, the judge sentenced Rickman, as a habitual offender, to serve thirty years without the possibility of parole.

¶ 7. Rickman now appeals challenging the sufficiency of the evidence supporting his aggravated-assault conviction.

Discussion

I. Sufficiency of the Evidence A. Standard

¶ 8. When assessing the legal sufficiency of evidence, we consider all evidence in the light most favorable to the State. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). Credible evidence consistent with guilt must be accepted as true. Day v. State, 126 So.3d 1011, 1014 (¶ 9) (Miss.Ct.App.2013). We give the State the benefit of all favorable inferences reasonably drawn from the evidence. Jones v. State, 20 So.3d 57, 64 (¶ 16) (Miss.Ct.App. 2009) (citing ■ Hughes v. State, 983 So.2d 270, 275-76 (¶¶ 10-11) (Miss.2008)). And the jury résolves matters of weight and credibility. Day, 126 So.3d at 1014 (¶ 10). Reversal is only proper if reasonable and fair-minded jurors could only find the accused not guilty. Jones, 20 So.3d at 64 (¶ 16).

B.The Assault

¶ 9. To prove aggravated assault on a law ■ enforcement officer, in the manner charged here, the State had to show Rick-man purposefully and knowingly caused serious bodily injury to a law enforcement officer. Miss.Code Ann. § 97 — 3—7(2)(a)(i)— (b)(i) (Supp.2013). We point out that Rick-man does not challenge the fact that he assaulted the jailer. Indeed, he admitted assaulting Van Amburgh, who he also does not dispute was a law enforcement officer under section 97 — 3—7(2)(b).

¶ 10. When explaining his “personal motivations” for attacking the jailer, Rick-man told the jury his “sole purpose” was to “scare [Van Amburgh] enough to make him quit. That’s the whole purpose of the whole incident.” So combining Rickman’s testimony with Van Amburgh’s and the security chiefs and also considering the surveillance video, the fact that Rickman assaulted the jailer is completely undisputed.

C.Serious Bodily Injury

¶ 11. What Rickman does dispute is that the State proved he caused “serious bodily injury” to the jailer — a necessary element when aggravated assault is charged under section 97 — 3—7(2) (a) (i). He insists, because of this failure, he was only guilty of simple assault, which requires proof of mere “bodily injury.” See Miss. Code Ann. § 97-3-7(l)(a)(i).

¶ 12. “Serious bodily injury” has been defined as “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Fleming v. State, 604 So.2d 280, 292 (Miss.1992) (emphasis added)' (quoting Model Penal Code § 210.0 (1980)). Viewing the evidence in the State’s favor, we find Van Amburgh’s bodily injuries certainly qualify as serious.

¶ 13. A surveillance video captured Rickman knocking the jailer unconscious with a makeshift weapon, then repeatedly hitting and kicking him. Photographs show Van Amburgh lost significant blood. Van Amburgh’s left pupil was permanently damaged, his nose was broken, and his hip and pelvic bone were fractured, causing him chronic pain and requiring him to miss five months of work. So there is obviously sufficient evidence of serious bodily injury.

D.Medical Evidence Not Required

¶ 14. While Rickman next suggests reversal is necessary because no medical testimony showed he caused Van Amburgh’s injuries, we emphasize that the State is not statutorily or otherwise required to offer expert or medical evidence to prove aggravated assault. To the contrary, any assault victim or lay witnesses is competent to testify about evidentiary facts within his or her direct knowledge, including descriptions of personal injuries. Denson v. State, 746 So.2d 927, 938 (¶¶ 41-42) (Miss.Ct.App.1999) (quoting Dennis v. Prisock, 221 So.2d 706, 710 (Miss.1969)). And here, Van Amburgh and Raby, who responded and photographed the jailer’s injuries that were admittedly caused by Rickman, described the severity of Van Amburgh’s bodily injuries to the jury. Photographs of the injuries and the video were also admitted. Thus, there was sufficient evidence before the jury describing the severity of the jailer’s injuries.

II. Weight of the Evidence

¶ 15. Rickman’s last argument contesting the weight of the evidence supporting his conviction is identical to his attack on the sufficiency of the evidence — that there was no proof of “serious bodily injury.”

¶ 16. We will disturb a verdict only in those rare cases where “it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18) (citing Herring v. State, 691 So.2d 948, 957 (Miss. 1997)). When a weight-of-the-evidence argument is made, we weigh the evidence “in the light most favorable to the verdict.” Id.

¶ 17. For the same reasons we determined that the State sufficiently proved serious bodily injury, we likewise find the verdict was not against the weight of the evidence. We affirm.

¶ 18. THE JUDGMENT OF CONVICTION OF AGGRAVATED ASSAULT ON A LAW ENFORCEMENT OFFICER AND SENTENCE AS A HABITUAL OFFENDER OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT THE POSSIBILITY OF PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.

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

      . Rickman was jailed pending charges of armed robbery, aggravated assault, and possession of a firearm by a convicted felon. He was later convicted of all three felonies. During the pendency of this appeal, on January 7, 2014, we handed down an opinion vacating those convictions and remanding the case for a new competency hearing. See Rickman v. State, 129 So.3d 960, 964 (¶ 15) (Miss.Ct.App. 2014). Rickman did not raise his competency as an issue in the present case.

        . Rickman’s habitual — offender status was based on the following prior convictions listed in his indictment-escape on April 20, 2001; simple assault on a law enforcement officer on May 24, 2001; and automobile burglary on May 24, 2001.

      . He also gave a closing argument.

      . See Miss.Code Ann. § 99-19-81 (Rev.2007).


author: CARLTON, J.,

text:
    Jeffrey Keefe SEALE, Sr., Appellant v. Cherie Nanez SEALE, Appellee.
    No. 2013-CA-01464-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2014.

      Marty Craig Robertson, Ridgeland, attorney for appellant.
    Robert D. Jones, Meridian, attorney for appellee..
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Jeffrey Seale Sr. appeals the judgment of the Lauderdale County Chancery Court awarding alimony to Cherie Seale and distributing the couple’s marital property. On appeal, Jeffrey raises the following issues: (1) whether the chancellor erred in his classification of certain debts; (2) whether the chancellor erred in his distribution of the couple’s marital property; and (3) whether the chancellor erred by awarding permanent alimony to Cherie. Upon review, we find no abuse of discretion by the chancellor and therefore affirm.

FACTS

¶ 2. After seventeen years of marriage, Jeffrey and Cherie obtained a final judgment of divorce. The parties had two children during the course of their marriage, both of whom were minors at the time of the divorce. At the start of the parties’ marriage, Jeffrey worked as a stockbroker, and Cherie worked as an office administrator for a securities firm. Jeffrey later attended and graduated from medical school, completed a residency program, and began working as a physician in Meridian, Mississippi. Although Cherie continued to work while Jeffrey attended medical school, she opted to stay at home and raise the couple’s children after the family moved to Meridian.

¶ 3. In the proceedings below, the chancellor granted Cherie a divorce on the ground of adultery and awarded her custody of the parties’ children. After conducting an analysis of the Ferguson factors, the chancellor divided the couple’s marital property as follows: (1) Cherie received $77,107 in marital assets and $38,334 in marital debt; and (2) Jeffrey received $31,513 in marital assets and $292,127.12 in marital debt.

¶ 4. Based on the parties’ respective incomes and the amount of their debt in comparison with their total assets, the chancellor found that the division of the marital estate left Cherie with a “definite deficit.” The chancellor therefore conducted an analysis of the Armstrong factors to determine whether an award of alimony was appropriate. He concluded that Cherie “should have rehabilitative periodic alimony during a transition period ... and ... permanent periodic alimony in a nominal amount.” Based on his findings, the chancellor ordered Jeffrey to pay Cherie $1,500 in “rehabilitative periodic alimony” for forty-eight months. The chancellor also ordered Jeffrey to pay Cherie $100 in nominal permanent alimony until Cherie’s remarriage or either party’s death. Aggrieved by the chancellor’s rulings on the issues of distribution of the marital property and permanent alimony, Jeffrey appeals to this Court.

STANDARD OF REVIEW

¶ 5. “This Court’s standard of review in domestic[-]relations matters is extremely limited.” Phillips v. Phillips, 45 So.3d 684, 692 (¶ 23) (Miss.Ct.App. 2010). On appeal, we “will not disturb a chancellor’s award of alimony and division of marital assets unless the [chancellor] was manifestly wrong, abused [his] discretion[,] or applied an erroneous legal standard.” Watson v. Watson, 882 So.2d 95, 98 (¶ 14) (Miss.2004) (citing Sandlin v. Sandlin, 699 So.2d 1198,1203 (Miss.1997)). Furthermore, though we only interfere with a chancellor’s findings of fact where the chancellor applied an erroneous legal standard or his factual findings were manifestly wrong or clearly erroneous, we review de novo the chancellor’s interpretation and application of the law. Singley v. Singley, 846 So.2d 1004, 1006 (¶5) (Miss.2002).

DISCUSSION

I. Whether the chancellor erred in his classification of certain debts.

¶ 6. In his first assignment of error, Jeffrey challenges the chancellor’s classification of certain debts as either marital or nonmarital. Jeffrey asserts that the chancellor erred by classifying a debt owed to Tony Nanez, Cherie’s father, as marital since Cherie used the money to pay for her attorney’s fees. Jeffrey also appears to argue that the chancellor improperly classified the unpaid portion of Jeffrey’s medical-school debt as nonmarital property,

a. The Debt Owed to Cherie’s Father

¶ 7. Our caselaw holds that debts acquired during the course of the marriage are subject to equitable distribution. McLaurin v. McLaurin, 853 So.2d 1279, 1285-86 (¶ 24) (Miss.Ct.App.2003). “The courts in this state have consistently held that expenses incurred for the family, or due to . the actions of a family member, are marital debt and should be treated as such upon dissolution of the marriage.” Shoff-ner v. Shoffner, 909 So.2d 1245, 1251 (¶ 17) (Miss.Ct.App.2005).

¶8. The record reflects that, due to Jeffrey’s adultery, Cherie incurred the debt at issue to pay for legal representation during her divorce proceedings. Because Cherie incurred the debt during the course of the parties’ marriage and as a direct result of Jeffrey’s actions, we find no error in the chancellor’s classification of the debt as marital. As a result, this argument lacks merit.

b. The Unpaid Portion of Jeffrey’s Medical-School Debt

¶ 9. On appeal, Jeffrey appears to argue that the chancellor erroneously classified his medical-school debt as nonmari-tal because the chancellor assigned Jeffrey sole responsibility for the repayment of the debt. In his brief, Jeffrey argues that “the loans for his education should not solely be assigned to him as the funds most certainly were commingled with other income to pay for living and marital/family expense[s].” Despite Jeffrey’s assertions, the record fails to indicate that the chancellor classified Jeffrey’s medical-school debt as nonmarital.

¶ 10. Although the chancellor assigned Jeffrey full responsibility for the remainder of the medical-school loans, this fact alone fails to establish that the chancellor erroneously classified the debt as nonmari-tal. The chancellor clearly acknowledged in his opinion that Jeffrey acquired the debt during the course of the parties’ marriage.' The chancellor further noted that the proceeds of the loans, along with Cherie’s income and other revenue sources, paid for the parties’ living expenses while Jeffrey attended medical school. Based on the facts in the record, we find no support for Jeffrey’s argument that the chancellor erroneously classified his medical-school debt as nonmarital. As a result, this argument also lacks merit.

II. Whether the chancellor erred in his distribution of the couple’s marital property.

¶ 11. Jeffrey next argues that the chancellor inequitably distributed the parties’ marital property. Jeffrey contends that the chancellor committed clear error by assigning him most of the marital debt and awarding him almost none of the marital assets.

¶ 12. ' Our caselaw provides that “an equitable division of property does not necessarily mean an equal division of property.” Chamblee v. Chamblee, 637 So.2d 850, 863-64 (Miss.1994). “Our task is to review the chancellor’s findings on the Ferguson factors — we do not conduct a Ferguson analysis anew.” Carter v. Carter, 98 So.3d 1109, 1112 (¶ 9) (Miss.Ct.App. 2012) (citation and internal quotation marks omitted). As previously discussed, the “chancellor’s factual findings will not be disturbed unless manifestly wrong, clearly erroneous, or the chancellor applied an improper legal standard.” Id. (citation and internal quotation marks omitted).

¶ 13. In Carter, this Court stated:

As long as Ferguson is properly applied, equitable divisions may indeed be lopsided. And “when the facts and circumstances warrant an equitable division of the marital estate of one-half or greater and such a division complies with the Ferguson principles, then we are duty bound to let such a distribution stand.” Phillips v. Phillips, 904 So.2d 999, 1003 (¶ 13) (Miss.2004). This [C]ourt performed that duty in Seymour v. Seymour, 960 So.2d 513, 519 (¶¶ 13-15) (Miss.Ct.App.2006). In that case, we affirmed the chancellor’s award of ninety-seven percent of the marital property, including the marital home, to the wife and order that the husband pay the outstanding debt on the marital home, because the facts and circumstances— including the husband’s much larger income and separate assets — supported such a division. Id.

Carter, 98 So.3d at 1113 (¶ 12).

¶ 14. In the present case, we find that the record contains substantial evidence to support the chancellor’s findings of fact and distribution of the marital estate. The chancellor wrote in his opinion that “the answer to the parties’ financial security does not lie in the division of the marital estate, due to its lack of liquidity and size. Moreover, the value of the marital estate is almost equal to the marital debt, compounding the difficulty of effecting an equitable division.”

¶ 15. In analyzing the Ferguson factors, the chancellor found that clear and substantial proof existed that Jeffrey’s actions destabilized his marriage and damaged his relationship with his children. Although Jeffrey served as the primary wage earner during the parties’ marriage, the chancellor found Cherie’s indirect contributions to the acquisition of marital assets to be as valuable as Jeffrey’s direct contributions. In addition, while Jeffrey’s medical degree improved his own earning capacity, the chancellor noted that the pursuit of Jeffrey’s career negatively impacted Cherie’s earning capacity since she left a more lucrative position for lower-paying employment when the couple moved.

¶ 16.. Concluding his analysis of the Ferguson factors, the chancellor stated:

The disparity in income between the parties is striking and must be taken into account. Cherie earns around $1,500 a month when she works every available day. Jeffrey earns that much in a single shift of emergency room duty. His monthly income is more than ten times greater than Cherie’s. As a result, Jeffrey is in a better position [than Cherie] to be able to pay down debt and accumulate wealth....
The most valuable single marital asset is the equity in the former marital residence. Any division of that equity between the parties will require that it be sold, because neither party has the cash to buy out the other’s interest. In his testimony, Jeffrey stated that he wanted his children to continue to live in the residence.... The court has taken into account Jeffrey’s wish in this regard.

¶ 17. The chancellor found that Cherie should receive a greater share of the marital estate since “the assets she is receiving are not liquid in any real sense.” The chancellor noted that the equity in the former marital home was “locked into the property so long as [Cherie] uses it as shelter for the minor children and herself[.]” The chancellor also noted that, if Cherie later sold the home, she would need the funds to provide a replacement shelter for herself and the children. Based on his application of the Ferguson factors, the chancellor distributed the parties’ marital estate in the following manner: (1) Cherie received $77,107 in marital assets and $38,334 in marital debt; and (2) Jeffrey-received $31,513 in marital assets and $292,127.12 in marital debt.

¶ 18. After reviewing the record and applicable caselaw, we find no manifest error in the chancellor’s distribution of the marital estate. See Watson, 882 So.2d at 98 (¶ 14). The chancellor based his distribution of the marital property on a proper application of the Ferguson factors, and the record contains substantial evidence to support his findings. Accordingly, this assignment of error lacks merit.

III. Whether the chancellor erred by awarding permanent alimony to Cherie.

¶ 19. Jeffrey also argues that the chancellor erred by awarding Cherie permanent alimony. “Alimony awards are within the discretion of the chancellor, and his discretion will not be reversed on appeal unless the chancellor was manifestly in error in his finding of fact and abused his discretion.” Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993) (citations omitted). “Alimony should only be considered if the property division leaves one spouse in a deficit.” Jones v. Jones, 2011-CA-01440-COA, — So.3d —, — (¶ 35), 2013 WL 1800051, at *8 (¶ 35) (Miss.Ct.App. Apr. 30, 2013) (citation omitted). “If there are sufficient assets to provide for both parties, then there is no more to be done.” Id. (citation omitted).

¶ 20. In Jones, this Court found manifest error in the chancellor’s award of nominal permanent alimony because the chancellor applied the Armstrong factors “after acknowledging he had made sufficient provision for [the wife] through the equitable division of the property so that permanent alimony was not needed.” Id. In reversing the chancellor’s award of alimony, this Court stated:

By referring to the award as “nominal” alimony, it does not appear that the chancellor was trying to address an actual deficit in the property award. Rather, he admits he was simply leaving the door open in case future events prove [the wife] has a need and [the husband] has an ability to pay. Such a contingency plan, while well-meaning, simply is not supported by our law. Alimony is to be considered as a remedy to an actual insufficiency in the marital assets, not as a contingency for a possible insufficiency in the future. Because the chancellor found the division of marital property left no need for alimony, we find it was error for the chancellor to nonetheless award “nominal” alimony.

Id. at (¶ 36).

¶ 21. On appeal, Jeffrey argues that the chancellor erroneously based the award of permanent alimony on Cherie’s possible future needs and his possible future income. The record reflects, however, that the chancellor found the division of Jeffrey and Cherie’s marital estate left Cherie with a “definite deficit” and failed to provide her with any lasting financial security. The chancellor’s finding that Cherie still suffered a deficit after the equitable distribution of the couple’s marital estate distinguished this case from Jones and provided the evidentiary basis required by precedent to consider an award of alimony. See id. at (¶ 35). The chancellor therefore proceeded with an analysis and application of the Armstrong factors.

¶ 22. In determining alimony to be proper, the chancellor stated:

With several years of financial support, which will afford her a transition period between this marriage and a more financially fruitful life, [Cherie] will hopefully be in a position to achieve a financial recovery. This consideration weights] in favor of a period of rehabilitative alimony[, which] .... is intended to prevent the recipient from being destitute.
On the other hand, it seems inequitable to allow Jeffrey the possibility to rebuild his life financially and enjoy the accumulation of wealth that Cherie would have participated in but for the breakup of the marriage. In his present financial state, at least according to the picture he presented to the court, it would seem unlikely that he could do so. Yet, if he has not been entirely forthcoming about his finances, he could rebound quickly. In the latter circumstance, it would be inequitable for Cherie to be precluded from enjoying her former standard of living. This consideration weighs in favor of permanent periodic alimony, since the purpose of permanent periodic alimony is to preserve the marital standard of living following a lengthy marriage.
The court finds that, in order to effect a financial remedy for this situation, Cherie should have rehabilitative periodic alimony during a transition period ... and ... should have permanent periodic alimony in a nominal amount.

¶ 23. As acknowledged, the chancellor determined after equitable distribution of the marital estate that Cherie suffered a deficit. As further recognized, our precedent allows the award of alimony upon the finding of such a deficit. See Jones, — So.3d at — (¶ 35), 2013 WL 1800051, at ⅝8 (¶ 35). After finding that a deficit existed, the chancellor awarded Cherie transitional rehabilitative alimony for forty-eight months and $100 in permanent alimony thereafter. We review the amount of an alimony award by a chancellor for manifest error. See Armstrong, 618 So.2d at 1280. In so doing, we find no abuse of discretion in the present case since the evidence in the record supports the chancellor’s determination regarding the amount and type of alimony awarded to Cherie. See id.

¶24. In accordance with our caselaw, the chancellor considered alimony only after determining that the division of property left Cherie with a deficit. See Jones, — So.3d at — (¶ 35), 2013 WL 1800051, at *8 (¶ 35). The chancellor then applied the Armstrong factors to the present case. Unlike in Jones, the record reflects that the chancellor awarded Cherie rehabilitative alimony for a transitional period and then awarded her permanent alimony in a nominal amount “as a remedy to an actual insufficiency in the marital assets,” rather than “as a contingency for a possible insufficiency in the future.” Id. at (¶ 36). As a result, we find this argument lacks merit.

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

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

      . Ferguson v. Ferguson, 639 So.2d 921, 928-29 (Miss. 1994).

      . Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993).

      . We acknowledge that the chancellor used the term "nominal amount” in referring to the award of permanent alimony. The use of the term "nominal” could be misleading since the term could imply that the alimony was not warranted. However, we acknowledge in this case the chancellor’s finding that an evi-dentiary basis existed to establish that Cherie suffered a deficit following the distribution of the marital estate.