author: IRVING, P. J.,

text:
    Michael ROBERTS and Lannie Roberts, Appellants v. YOUNG’S CREEK INVESTMENT, INC., Appellee.
    No. 2012-CA-00778-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.

      Parker Hays Still, Batesville, Robert Monroe Porter IV, attorneys for appellants.
    Brian Lee Starling, Tupelo, attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   IRVING, P. J.,

for the Court:

¶ 1. In November 2009, Young’s Creek Investment Inc. (Young’s Creek) filed a complaint in the Tallahatchie County Chancery Court against Michael and Lan-nie Roberts (the Robertses) to remove a cloud on and to confirm title to a 7.79-acre parcel of land. After a trial, the chancery court held that Young’s Creek had acquired title to the land through adverse possession. Peeling aggrieved, the Rob-ertses appeal and argue that the court erred in finding that Young’s Creek had obtained title to the disputed property through adverse possession, that Young’s Creek did not have permissive use of the disputed property, and that Young’s Creek had obtained title to the land under color of title.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. In 1986, Young’s Creek began renting a 482-acre plot of land adjacent to the disputed 7.79-acre plot. On August 15, 1988, Young’s Creek purchased the 482-acre plot. The 482-acre plot and the 7.79-acre plot are located immediately south of Ascalmore Creek. Young’s Creek believed that Ascalmore Creek was the boundary line between its property and its neighbor’s property located north of the creek, and that the disputed 7.79 acres was part of Young’s Creek’s property. On August 24, 1988, Young’s Creek signed a ten-year conservation contract with the Department of Agriculture, allowing the agency to plant pine trees on its property, including the disputed 7.79 acres. After the contract’s initial ten years expired, it was renewed annually until September 2007.

¶ 4. In 2000, Roy Shook, Young’s Creek’s neighbor and the owner of the acreage north of Ascalmore Creek at that time, had a survey done on his property. Shook’s attorney sent a letter to Young’s Creek informing it that the boundary line between Young’s Creek’s and Shook’s properties was not Ascalmore Creek. More specifically, the letter explained that the 79.78 acres that Shook owned included the 7.79-acre plot south of the creek. Young’s Creek’s lawyer sent Shook a letter informing him that Young’s Creek disagreed with the survey. Young’s Creek took the position that Shook staked off property that belonged to Young’s Creek. Neither party took any further action.

¶ 5. Shook subsequently conveyed his interest in the property to his sister Dossie Shook Roberts. In July 2007, the Rob-ertses purchased Dossie’s 79.78 acres, which, by deed, included land on the north side of Ascalmore Creek and the 7.79-acre plot on the south side of the creek. That same year, the Robertses erected a fence enclosing the 7.79-acre plot. Shortly thereafter, Young’s Creek filed a lawsuit acknowledging that the Robertses were record holders of the plot in dispute, but claiming to have adversely possessed the property by hunting, fishing, farming, and renting the property to the Department of Agriculture from 1988 until the Robertses erected the fence in 2007. Thad Roberts, Dossie’s husband, testified that two members of Young’s Creek were given permission to hunt on the land:

Q: Was there any agreement that you had with members of Young’s Creek that allowed them to hunt on the disputed seven-acre tract?
A: We had a verbal agreement. And, of course, Clinton and Terry and I worked together for 20 years or better.... And I stated to them many a time that we did not care for them hunting on that land.
Q: You gave them permission?
A: Yes.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

I. Adverse Possession

¶ 7. The Robertses contend that Young’s Creek did not prove all of the elements necessary to show that it obtained the disputed property by adverse possession. “[F]or possession to be adverse it must be (1) under claim of ownership; (2) actual or hostile; (8) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Blackburn v. Wong, 904 So.2d 134, 136 (¶ 15) (Miss.2004) (citing Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150, 1152-53 (Miss.1992)). “We will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous, or applied an erroneous legal standard.” Taylor v. Bell, 87 So.3d 1134, 1137 (¶ 6) (Miss.Ct.App.2012) (citing Buford v. Logue, 832 So.2d 594, 600 (¶ 14) (Miss.Ct.App.2002)). The chancellor must find that the plaintiffs proved each element of their claim by clear and convincing evidence. See Blackburn, 904 So.2d at 136 (¶ 16).

A. Claim of Ownership

¶ 8. Under the claim-of-ownership element of adverse possession, the chancellor must determine whether the purported adverse possessor’s actions were sufficient to “fly a flag over the property” and put the actual owners on notice that the property was “being held under an adverse claim of ownership.” Apperson v. White, 950 So.2d 1113, 1117 (¶ 7) (Miss.Ct.App.2007) (citing Walker v. Murphree, 722 So.2d 1277, 1281 (¶ 16) (Miss.Ct.App.1998)). The Mississippi Supreme Court has stated:

When determining whether the [possessors] undertook possessory acts sufficient to support a claim of adverse possession, the chancellor must look to the quality and not the quantity of the acts indicative of possession. Possessory acts necessary to establish a claim of adverse possession may vary with the characteristics of the land, and adverse possession of wild or unimproved lands may be established by evidence of acts that would be wholly insufficient in the case of improved or developed lands.

Id. at (¶ 8) (internal quotations and citations omitted). In the present case, the chancellor determined that the land in dispute was wild land. Therefore, the claim of adverse possession of the 7.79 acres may be proved by a showing of possessory acts that would be insufficient to establish the claim if the 7.79 acres were improved and developed land.

¶ 9. The chancellor reasoned that the Robertses’s claim — that Young’s Creek was given permission to hunt on the 7.79 acres — ignores or fails to take into account that Young’s Creek was not given permission to farm, plant trees, raise cattle, or rent the land to others. Young’s Creek’s use of the land was enough to put the Robertses on notice that Young’s Creek held the property under an adverse claim of ownership. Accordingly, we agree with the chancellor that Young’s Creek satisfied this element of adverse possession.

B. Hostile

¶ 10. “Possession is defined as effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses.” Blankinship v. Payton, 605 So.2d 817, 819-20 (Miss.1992). “Possession is hostile and adverse when the adverse possessor intends to claim title notwithstanding that the claim is made under a mistaken belief that the land is within the calls of the possessor’s deed.” Wicker v. Harvey, 937 So.2d 983-94 (¶ 34) (Miss.Ct.App.2006) (citing Alexander v. Hyland, 214 Miss. 348, 357, 58 So.2d 826, 829 (1952)). The adverse possessor must also possess the property without permission, because permission defeats any claim of adverse possession. Apperson, 950 So.2d at 1118 (¶ 12).

¶ 11. Regarding possession, Young’s Creek’s actions must constitute effective control over the 7.79 acres that was visible to the eye or perceptible to the senses. The Robertses observed Young’s Creek building deer stands and planting trees on the property. While there was no testimony that the Robertses observed the other actions that Young’s Creek described, those actions were blatant enough to be visible to the eye and perceptible to the senses. Therefore, it is clear that Young’s Creek’s actions demonstrated actual possession of the disputed land.

¶ 12. With regard to the hostile requirement, witnesses for Young’s Creek testified that they believed that the 7.79 acres were described in Young’s Creek’s deed when it purchased the property in 1988. Witnesses for Young’s Creek also testified that they believed the disputed land was included in the rental agreement it entered into with its predecessors in interest two years prior to the purchase of the 482 acres. The chancellor found that the contract with the Department of Agriculture combined with the farming of the land by Young’s Creek rendered Young’s Creek’s occupation of the 7.79 acres hostile. Accordingly, we agree with the chancellor that Young’s Creek’s possession was hostile.

C. Open, Notorious, and Visible

¶ 13. In addition to the requirements that possession be under a claim of ownership and hostile, possession must also be open, notorious, and visible. To satisfy this element, the possessor “must unfurl his flag on the land, and keep it flying, so that the actual owner may see, and if he will, that an enemy has invaded his domains, and planted the standard of conquest.” Wicker, 937 So.2d at 994 (¶ 35) (quoting Blankinship, 605 So.2d at 820). Young’s Creek’s members testified to planting crops and hunting on the 7.79 acres since the mid-1980s. Despite the Robertses’ belief that the tree planting on the 7.79 acres was just an error by a tree-planting company because they were planted “right down beside the boundary line,” Young’s Creek engaged in other activities, including renting the land to the Department of Agriculture, which supports the chancellor’s findings that Young’s Creek’s possessory acts were open, notorious, and visible. Accordingly, we agree with the chancellor that Young’s Creek satisfied this element of adverse possession.

D.Continuous and Uninterrupted for a Period of Ten Years

¶ 14. The plaintiff in an adverse-possession action must be in possession of the property for at least ten years. See Miss. Code Ann. § 15-1-13(1) (Rev.2012). This period of possession must be continuous and uninterrupted. Id. Young’s Creek began possessing the 7.79 acres in 1988 when it purchased the 482 acres from the previous owner and began conducting the various activities discussed above as if it rightfully owned the 7.79 acres until 2007, when the Robertses erected the fence. Therefore, we agree with the chancellor that Young’s Creek was in possession of the 7.79 acres for a total of nineteen years and satisfied this element of adverse possession.

E.Exclusive

¶ 15. Exclusive possession means that the possessor “evinces an intention to possess and hold land to the exclusion of, and in opposition to, the claims of all others, and the claimant’s conduct must afford an unequivocal indication that he is exercising [the] dominion of a sole owner.” Wicker, 937 So.2d at 995 (¶ 40) (quoting Rawls v. Parker, 602 So.2d 1164, 1169 (Miss.1992)) (internal quotations omitted). It does not mean that no one else can use the property. Apperson, 950 So.2d at 1119 (¶ 15). “Exclusivity, within the meaning of the statute, means that the adverse possessor’s use of the property was consistent with an exclusive claim to the right to use the property.” Id. (citing Moran v. Sims, 873 So.2d 1067, 1069 (¶ 10) (Miss.Ct.App.2004)). Young’s Creek rented the land in dispute to the Department of Agriculture. That conduct, in addition to the other conduct that the chancellor discussed, amounts to exercising the dominion of a sole owner. We agree with the chancellor that Young’s Creek’s use of the property was consistent with an exclusive claim to the right to use the property.

F.Peaceful

¶ 16. There is no evidence that Young’s Creek’s occupation of the property was not peaceful. Our supreme court has held that expected disputes associated with the use or ownership of the property are not indicative of the possession not being peaceful. See Dieck v. Landry, 796 So.2d 1004, 1009 (¶ 15) (Miss.2001). Here, the chancellor found that Young’s Creek’s possession was peaceful for nineteen years and that there was no evidence of a dispute over ownership or use of the land before the Robertses erected the fence that would not have been considered peaceful. We agree that this element of adverse possession was satisfied.

II. Permissive Use

¶ 17. There cannot be a valid claim of adverse possession when the actual owner has given the possessor permission to use the land. Massey v. Lambert, 84 So.3d 846, 849 (¶ 1) (Miss.Ct.App.2012). The Robertses contend that Young’s Creek was given permission to hunt on the 7.79 acres through a verbal agreement between a Roberts family member and two members of Young’s Creek (Clinton and Terry). Thad testified that Young’s Creek’s members stayed on their side and hunted, and his family stayed on their side and hunted, “except in that seven acres.” As stated, Thad testified that the Robertses “didn’t care about [Clinton and Terry] hunting on [the 7.79 acres].” However, no Young’s Creek member admitted that he was granted permissive use of the land, and even if Thad had given Clinton and Terry permission to hunt on the land, that did not mean that all of Young’s Creek’s members had permission to hunt on the land or that Thad had the authority to give such permission. In fact, Young’s Creek’s members testified that they hunted on the 7.79 acres under the mistaken belief that Young’s Creek owned the 7.79 acres. Also, neither the Robertses nor their predecessor in interest gave Young’s Creek permission to enter into a contract with the Department of Agriculture, plant food plots, fish in the Ascalmore Creek, or engage in any other activity. Therefore, the chancellor, in considering the totality of Young’s Creek’s activities on the property, did not err in finding that Young’s Creek’s possession of the 7.79 acres was hostile and not permissive. We agree with the chancellor that Thad’s claim alone that two Young’s Creek members had permission to use the land for hunting did not defeat Young’s Creek’s claim of adverse possession. This issue is without merit.

III. Color of Title

¶ 18. The Robertses contend that the chancellor erred in finding that Young’s Creek had obtained title to the land in dispute under color of title. “Color of title is an instrument of conveyance or a record which appears to convey title[,] but which in fact does not have that legal effect.” Houston v. U.S. Gypsum Co., 652 F.2d 467, 473 (5th Cir. Unit A Aug.1981). “Thus, for example, an adverse possessor may claim [the property] under the color of title of a defect or imperfect instrument, even though his grantor or a predecessor was entirely without title or interest.” Id. at 474.

¶ 19. The chancellor’s finding that Young’s Creek possessed the 7.79 acres under color of title is incorrect. The chancellor considered color of title as if it were the first element of adverse possession. However, color of title is not an element of adverse possession. Furthermore, in order to possess land under color of title, there must be a defect or imperfection in the deed that, in effect, denies title or interest to the property. Here, there was no defect or imperfection in the deed conveying the 482 acres to Young’s Creek. Both parties acknowledged that the deed conveying the 482 acres to Young’s Creek did not include the 7.79-acre plot. There was no testimony that there was an intent to include the 7.79-acre plot in the deed and that the deed was merely imperfect. The deed does not attempt to convey title to the disputed 7.79 acres and does not have that legal effect. Nevertheless, because color of title is not an element of adverse possession, the chancellor’s finding regarding this issue does not defeat Young’s Creek’s adverse-possession claim.

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

LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Al CARTER, Appellant v. The CLEVELAND SCHOOL DISTRICT, Appellee.
    No. 2012-CA-00562-COA.
    Court of Appeals of Mississippi.
    July 23, 2013.

      Willie Griffin, Greenville, attorney for appellant.
    Jamie Ferguson Jacks, Cleveland, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. A1 Carter appeals the decision of the Bolivar County Chancery Court, which affirmed the decision of the Board of Trustees (Board) for the Cleveland School District (“District”), not to renew Carter as an employee of the District. Carter argues that the chancery court (1) erred by deciding that the decision of the Board was supported by substantial evidence; (2) erred in finding that the decision of the Board was not arbitrary and capricious; and (3) correctly found, as a matter of law, the reduction-in-force policy (RIF policy) for the District to be vague and ambiguous, but erred in failing to find that it should be construed to require the District to offer Carter another administrative position based on his qualifications, experience, and length of service.

¶ 2. Finding no error, we affirm.

FACTS

¶ 8. The District employed Carter as personnel director on January 4, 2005. He remained in this position until June 30, 2010.

¶ 4. On May 28, 2010, Carter received a letter of nonrenewal from the District. The letter explained that the Board eliminated the position of personnel director pursuant to the District’s RIF policy. The letter further stated that the Board made its decision following a review of budget constraints faced by the District, as well as a review of Carter’s duties as personnel director. The Board determined that the superintendent could absorb the personnel director’s duties. The Board, in fact, eliminated the entire personnel department.

¶ 5. On July 8, 2010, a hearing before the Board commenced on the nonrenewal of Carter’s contract pursuant to Carter’s request to challenge the decision to eliminate his position. The District’s Chief Financial Officer, J.R. Braswell, testified that the District faced $1.4 million in budget cuts for the coming fiscal year. Bras-well further testified that, through attrition, the District only saved $771,000, making the District some $700,000 short in balancing the budget.

¶ 6. A District trustee, Todd Fuller, testified that the District faced dramatic budget cuts. Fuller testified that the Board directed the superintendent to critique all positions for “support staff’ before recommending the elimination of any instructional positions and to evaluate whether the duties carried out by the support staff could be handled any other way. Fuller stated that in order to compensate for the budget cuts, the Board decided to eliminate the position of personnel director and also the position of associate superintendent. Fuller testified that the Board inquired as to whether the superintendent possessed the ability to handle the job duties of the personnel director, and she indicated that she did. Fuller explained that by eliminating the personnel department, the District saved $150,000 per year. Fuller further stated that the Board did not consider whether Carter possessed more experience than other employees or whether Carter should be entitled to replace other employees in the District. Fuller explained that Carter acted as the only personnel director for the District, and “there wasn’t anybody else to compare him to.”

¶ 7. The District’s superintendent, Dr. Jacquelyn Thigpen, testified that the Board requested that she look to eliminate positions at the central office prior to any elimination of instructional positions. While Dr. Thigpen did not recommend eliminating Carter’s personnel-director position, the Board instructed her, because of the budget shortfalls and after reviewing the duties of the personnel director, to eliminate the entire personnel department. Dr. Thigpen testified that the Board eliminated the personnel department by utilizing the RIF policy. Dr. Thigpen also testified that when the Board asked her whether the personnel director’s duties could be distributed to others, she replied that a distribution of those duties will occur or had already occurred in the District. Dr. Thigpen further testified that Carter received a salary of $95,020, and that the only positions with similar or higher salaries were that of the chief financial officer and the superintendent. Lastly, Dr. Thig-pen stated that the RIF policy does not include any provisions pertaining to offering an employee employment in another position. Dr. Thigpen testified that Carter was a covered employee under the RIF policy.

¶ 8. Carter also testified at the hearing. Acknowledging the District’s budget constraints, Carter’s attorney stipulated as to the occurrence of a substantial reduction in the amount of funds the state allocated for the District. Carter did not offer proof that the Board erred in eliminating his position as the personnel director. In fact, Carter’s attorney explained that Carter did not contest the elimination of the entire personnel department, including Carter’s position as the director of the department. Carter’s attorney stated:

It’s not our position, Your Honor, to suggest that they should have retained the personnel department. That’s not— that’s never been our position. Our position is that they eliminated that department. They had a duty to offer him another position.

Even though Carter’s attorney argued that the District owed Carter a duty to offer him another position within the District, Carter acknowledged at the hearing that the RIF policy does not state that the District must offer him another position. Specifically, Carter testified, “Nowhere in this policy does it say that you have to offer me another position when you eliminate the department.”

¶ 9. Carter testified that he possessed the qualifications to serve as a principal, and that the District employed principals with less experience than him. However, Carter failed to offer any proof that he had any experience as a principal within the District, and he testified that his prior experiences as a principal were in Leflore County and Coahoma County. Carter also failed to offer any proof that he applied for any other positions within the District. Carter testified that upon learning of the elimination of the entire personnel department, he sought alternative employment, not for himself, but for his assistant.

¶ 10. Following the hearing, the Board rendered a final decision upholding the decision not to renew Carter’s employment contract as personnel director. Carter appealed his case to the chancery court, which entered an order finding the Board’s decision to be supported by substantial evidence, not arbitrary and capricious, and not in violation of a statute or constitutional provision.

¶ 11. Carter now appeals.

STANDARD OF REVIEW

¶ 12. “When this Court reviews a decision by a chancery or circuit court concerning an agency action, it applies the same standard of review that the lower courts are bound to follow.” Webb v. S. Panola Sch. Dist., 101 So.3d 724, 727 (¶ 7) (Miss.Ct.App.2012) (citation omitted)). “Neither the appellate court nor the chancery court can ‘substitute its judgment for that of the agency or reweigh the facts of the case.’ ” Id. (citation omitted).

¶ 13. Mississippi Code Annotated section 37-9-113(3) (Rev.2007) provides the standard of review in this matter:

The scope of review of the chancery court in such cases shall be limited to a review of the record made before the school board or hearing officer to determine if the action of the school board is unlawful for the reason that it was:
(a) Not supported by any substantial evidence;
(b) Arbitrary or capricious; or
(c) In violation of some statutory or constitutional right of the employee.
DISCUSSION
I. Whether the chancery court erred by deciding that the Board’s decision was supported by substantial evidence.
II. Whether the chancery court erred in finding that the Board’s decision was not arbitrary and capricious.
II. Whether the chancery court correctly found that, as a matter of law, the RIF policy for the District was vague and ambiguous but erred in failing to find that it should be construed to require the District to offer Carter another administrative position based on his qualifications, experience, and length of service.

¶ 14. Carter argues that the chancery court erred in determining that the Board’s decision was supported by substantial evidence and not arbitrary and capricious. Carter alleges that the RIF policy is vague and ambiguous and lacked the specificity required to guide the District in its decision to eliminate an entire department. Carter contends that the Board’s decision to enforce this vague and ambiguous policy was arbitrary and capricious.

¶ 15. “The Mississippi School Employment Procedures Law was enacted in 1977 to ‘establish procedures for providing public school employees with notice of the reasons for not offering an employee a renewal of his contract.” Burks v. Amite Cnty. Sch. Dist., 708 So.2d 1366, 1369 (¶ 10) (Miss.1998) (quoting Miss.Code Ann. § 37-9-101 (1977)). The act’s purpose included the protection of “employees” from “unfair and sometimes vindictive practices of their superiors.” Id. (citation omitted). Mississippi Code Annotated section 37-9-103(l)(a) (Supp.2012) defines an “employee” as “[a]ny teacher, principal, superintendent or other professional personnel employed by the local school district for a continuous period of two (2) years with that district and required to have a valid license issued by the State Department of Education as a prerequisite of employment!;.]” Written notice of the intention to not renew an employee’s employment contract for a successive year must be provided in accordance with the requirements of Mississippi Code Annotated section 37-9-105 (Supp.2012). The written notice must include the reasons for the nonrenewal of the employment contract. Id.

¶ 16. After reviewing the record, we find no abuse of discretion by the chancery court in affirming the Board’s decision not to renew Carter’s employment contract for his position as personnel director. The chancery court found that the Board based its decision on drastic budget shortfalls and a determination that other employees possessed the ability to absorb the duties of the personnel director. Thus, the chancery court determined that the Board’s decision was based upon substantial evidence, was not arbitrary or capricious, and did not violate any of Carter’s statutory or constitutional rights. See Miss.Code Ann. § 37-9-113.

¶ 17. “Substantial evidence means more than a scintilla or a suspicion.” Smith Cnty. Sch. Dist. v. Campbell, 18 So.3d 335, 338 (¶ 17) (Miss.Ct.App.2009) (citation omitted)). “The terms ‘arbitrary’ and ‘capricious’ imply ‘a lack of understanding of or a disregard for the surrounding facts and settled controlling principles.’ ” Id. at (¶ 18) (citation omitted). We deem an act arbitrary when it occurs not according to reason or judgment, but occurs based on the will alone. Id. “If the reasons for non-renewal are a sham, or are a retaliation for the employee’s constitutionally protected activity, the Board acts arbitrarily and capriciously.” Id.

¶ 18. At the hearing, Carter’s attorney stipulated that the District faced a substantial budget shortfall and that the District had to reduce staff because of the budget constraints. In fact, Carter’s attorney acknowledged at the hearing that it was not his position that the Board should have retained the personnel department, just that the District possessed a duty to offer Carter another position. The District presented the following evidence at the hearing on this matter: Braswell testified that for the fiscal year 2010-2011, the District experienced a $1.4 million budget cut; Fuller testified that the Board made the decision to eliminate the personnel-director position due to budget constraints; Fuller testified that Dr. Thigpen, the superintendent, informed the Board of her capability of taking over the personnel director’s duties; Dr. Thigpen testified as to Carter’s salary as personnel director of $95,020 a year and that the only individuals in the District who made similar or more than the personnel director were the superintendent and the chief financial officer.

¶ 19. The Mississippi Supreme Court has “implicitly validated the use of factors such as ... financial exigencies to stand as the basis for non-renewal of teacher contracts.” Burks, 708 So.2d at 1370 (¶ 15) (citing Byrd v. Greene Cnty. Sch. Dist., 633 So.2d 1018, 1024 (Miss.1994)). The record shows that due to the budget constraints, the District was faced with a $1.4 million shortfall. In order to overcome this financial situation, the Board decided to eliminate administrative positions prior to the elimination of the instructional staff. The Board eliminated the entire personnel department after considering the budgetary savings and after determining that the job duties of the personnel director could be distributed to others within the District. Carter failed to present evidence that the Board erred in the elimination of his position as personnel director. Carter failed to apply for other administrative or instructional positions, and his qualifications to obtain some other position, relative to other applicants, was not before the Board due to his failure to apply. The issues Carter placed before the Board, and hence before the chancery court, were (1) whether the Board’s decision not to renew Carter as personnel director and to eliminate the personnel department was supported by substantial evidence and was not arbitrary or capricious, and (2) whether the RIF policy required the Board to offer Carter a position in another administrative department or within the instructional staff. A review of the record shows substantial evidence supported the Board’s decision to eliminate Carter’s position as personnel director, and the plain language of the RIF policy provided no requirement to offer Carter some other administrative or instructional position.

¶20. As noted by the chancery court, Carter did not argue that his constitutional or statutory rights were violated. Instead, Carter claimed that the District possessed a duty to allow him to replace another administrator with less seniority than him or transfer him into another administrative position pursuant to the RIF policy. We find this claim lacks merit, and we acknowledge that the record reflects that the Board eliminated the entire personnel department, not just Carter’s position as personnel director. The chancery court found the RIF policy vague as to RIF procedures and as to offering new jobs to employees whose positions were eliminated pursuant to the RIF policy. We find no ambiguity in the RIF policy. The plain language of the policy provides no right to an employee to be placed in a new job position upon elimination of his or her position pursuant to the RIF policy.

¶21. The District’s RIF policy provides:

The Board of Trustees has the responsibility for providing and maintaining quality schools in the district. In order to carry out this responsibility!,] the board may abolish or combine job positions, reduce the length of the work year with a concurrent/accompanying reduction in salary of employees, the same to be in no event less than 187 days per contract year, and/or reduce the number of employees. When doing so, the board will take into account the following reasons for [the] reduction in force: enrollment, educational programs, and human, material, and financial resources.
The primary objective of the board when reducing the work force will be the maintenance of a fair and balanced educational program consistent with the needs of the students and functions and responsibilities of the school district. The board will consider the following factors, not necessarily in the order listed:
1. Criticality of the position to the mission, goals, and objectives of the school district.
2. Area(s) and level(s) of competence [indicated] by certification.
3. Experience, professional training and length of service within the district and the work assignment.
4. Quality of performance including character, teaching capacity and/or executive ability.
5. Skills in areas where the district has instructional and/or supervisory needs.
Initially, staff reduction will be accomplished by attrition.

As evidenced above, nothing in the RIF policy states that when the District eliminates a position, the person who holds that position must be offered alternative employment within the District. In fact, during the hearing on the nonrenewal of his contract, when asked where in the RIF policy does it say that the District must offer him another position when it eliminated the personnel department, Carter replied: “Nowhere in this policy does it say that you have to offer me another position if you eliminate the department.” Similarly, Dr. Thigpen testified at the hearing that nothing in the RIF policy requires the District to offer a person another position upon elimination of his or her position. Furthermore, the record shows that while Carter helped his assistant get another position within the District, he failed to offer any proof that he applied for alternative employment within the District. Carter also failed to provide evidence of a past policy and practice of automatically replacing a less senior employee with a more senior employee.

¶ 22. As stated, we find no merit to Carter’s claim that the RIF policy constitutes a vague and ambiguous policy such that it should be construed to require the District to offer Carter another administrative position based on his qualifications, experience, and length of service. Carter failed to demonstrate ambiguity or how the policy is susceptible to multiple, reasonable interpretations. Nothing in the RIF policy provides that when a position is eliminated, the employee must be offered another position. Even Carter admitted this in his testimony at the hearing. Also, the RIF policy only required the Board to consider the employee’s experience, qualifications, and length of service “within the district and the assignment.” Carter presented no proof that he possessed experience as a principal within the District, and the “assignment” that was being eliminated was “personnel director.” The RIF policy, by its plain language, constitutes a reduction-in-force policy, and, as such, the policy includes no provisions as to the District’s hiring procedures for the various instructional and noninstructional administrative positions.

¶ 23. Based on the foregoing, we affirm the chancery court’s decision to affirm the Board’s nonrenewal of Carter’s employment contract. We find the Board’s decision to be based upon substantial evidence, not arbitrary or capricious, nor in violation of Carter’s constitutional or statutory rights.

¶ 24. THE JUDGMENT OF THE BOLIVAR 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.

      . This Court may affirm a decision on appeal for a different reason than it was decided by the lower court. Askew v. Askew, 699 So.2d 515, 519 n. 3 (Miss.1997).

      . We make this decision in contradiction to the chancery court's finding that the RIF policy in question was “very vague and ambiguous." We agree with the chancery court, however, in its ultimate ruling that the testimony in the record provides evidence to support the nonrenewal of Carter’s contract as personnel director. See Askew, 699 So.2d at 519 n. 3.


author: GRIFFIS, P.J.,

text:
    Brandy Denise DENMARK (Powe), Appellant v. Jasen Bryant DENMARK, Appellee.
    No. 2011-CA-01196-COA.
    Court of Appeals of Mississippi.
    July 23, 2013.

      James R. Hayden, Cheryl D. Hayden, Petal, attorneys for appellant.
    Darryl A. Hurt Jr., attorney for appel-lee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the court:

¶ 1. Brandy Denmark Powe and Jasen Denmark were granted an irreconcilable-differences divorce on August 20, 2004. They had two children, Caden and Abigail, during their marriage. In their divorce, they agreed that they would share joint legal custody, and Brandy would have primary physical custody of the children.

¶ 2. Jasen filed his first motion to modify custody on August 25, 2005. The chancellor denied the motion by order dated January 19, 2007. The chancellor’s order held that Jasen had failed to prove a material change in circumstances had occurred. However, the chancellor did find that Ja-sen had a substantial increase in his income that warranted an increase in his child support to $614 a month.

¶ 3. On February 12, 2008, Jasen filed his second motion for modification of custody. He asked the chancellor to grant him custody, grant Brandy supervised visitation, and order Brandy to pay child support. The chancellor appointed Steve Hedrick to serve as the children’s guardian ad litem.

¶ 4. After several hearings, the chancellor entered her findings of fact and conclusions of law on July 12, 2011. At the end, the chancellor stated that this ruling shall serve as a final judgment. The chancellor granted Jasen the relief he requested. Ja-sen was given physical custody of the children, and Brandy was granted visitation rights and ordered to pay child support. The chancellor also held Brandy in contempt for her failure to pay her portion of the children’s medical expenses.

¶ 5. The standard for a modification of child custody is well settled. In Mabus v. Mabus, 847 So.2d 815, 818 (¶ 8) (Miss.2003), the Mississippi Supreme Court held:

In a case disputing child custody, the chancellor’s findings will not be reversed unless manifestly wrong [or] clearly erroneous, or the proper legal standard was not applied. The burden of proof is on the movant to show by a preponderance of the evidence that a material change in circumstances has occurred in the custodial home.
In the ordinary modification proceeding, the non-custodial party must prove: (1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child’s welfare; and (3) that the child’s best interests mandate a change of custody.
In considering whether there has been such a change in circumstances, the totality of the circumstances should be considered. Even though under the totality of the circumstances a change has occurred, the court must separately and affirmatively determine that this change is one which adversely affects the children.
Furthermore, it is well settled that the polestar consideration in any child custody matter is the best interest and welfare of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

(Internal citations omitted).

¶ 6. In practice, this is a three-step process. First, the chancellor must find that a material change of circumstances has occurred in the custodial home. Second, the chancellor must find that the change adversely affected the child(ren). If the chancellor does not find both a material change of circumstances and an adverse effect, the inquiry should end and the motion should be denied. If both are found, the chancellor should then move to the best-interest analysis. This requires the chancellor consider the Albright factors.

¶ 7. In this appeal, Brandy challenges the chancellor’s finding of a material change of circumstances and adverse effect. Brandy does not argue that the chancellor was in error in the Albright analysis. As a result, we only consider whether the chancellor was in error in her decision that found a material change of circumstances adversely affected the children.

¶ 8. In her findings of fact and conclusions of law, the chancellor found a material change in circumstances had occurred. The chancellor noted Brandy’s multiple residential changes, the children’s repeated illnesses that required medical treatment, the children’s exposure to the maternal grandfather’s alcohol consumption, the fact that the grandfather drove while impaired with Caden in the vehicle, and the children’s exposure to cigarette smoke. The chancellor also concluded that these material changes had an adverse impact on the children that was manifested by Caden’s failing grades and the repeated illnesses of both children, which required medical attention that was usually paid for by Jasen.

¶ 9. Jasen testified that he had a two-year associate degree in electronics and instrumentation and was employed by Performance Contract. Jasen and his wife, Amanda, had just finished building a new home and had previously lived in a trailer on the same site.

¶ 10. Jasen testified about the children’s medical conditions. Jasen complained that the children were consistently sick when they came to him. Caden needed ear surgery, and in January 2009, Jasen and Brandy met with a doctor to discuss the surgery. They were scheduled to come back the next day for surgery. But Brandy did not bring Caden for the surgery. Instead, Brandy took Caden to another doctor in Laurel, Mississippi. That doctor did not perform the surgery. Jasen then called the original doctor back and set up another appointment. Jasen testified he informed Brandy of when the surgery would be performed. The surgery occurred during spring break, in 2009, while Caden was in Jasen’s custody. Brandy did not attend the surgery.

¶ 11. Jasen testified that Brandy was responsible for half of the children’s medical expenses. Jasen testified he told Brandy of the amount she owed for medical expenses, and she had not paid him. The medical bills were admitted into evidence.

¶ 12. Jasen testified that he had trouble with Brandy’s various residential moves. Jasen also objected to Joe Reid, Brandy’s husband, living in the house with the children. Jasen also testified that the children often wore ill-fitting clothes and smelled like cigarette smoke. Jasen further stated that Theresa Denmark, Brandy’s mother, usually brings the children to visitation.

¶ 13. Theresa testified that she is a sixth-grade teacher. She testified that Ca-deris grades were below average when he was in first grade. Theresa would go to Caderis school to tutor him. During the two weeks that she tutored Caden, his grades improved. Brandy called a school official and complained. Theresa was then informed she could not go to the school to tutor Caden, and she stopped. Theresa also testified that her husband drank every once in a while but not in front of the children.

¶ 14. Angela Vanderford, Caderis teacher for the 2008-2009 school year, testified that Caden was sick quite a bit. She testified that Caderis health problems improved after the surgery, but Caden was struggling academically. Angela also testified that Theresa’s tutoring sessions helped Caden, and his grades really improved.

¶ 15. Brandy testified she had lived at four different residences. She testified that she also lived at her mother’s house on occasion. Brandy testified that she made about nine moves. Her current home has four rooms, and Caden and Abigail have their own room.

¶ 16. Brandy also testified about her employment history. Between 2007 and 2010, Brandy would clean houses until she got a job at Pinebelt. She quit working at Pinebelt to become a homemaker.

¶ 17. Brandy testified that Caden and Abigail currently have grades in school that are A’s and B’s. She said that she, Joe, and sometimes his oldest son Kyle help Caden with math homework.

¶ 18. Brandy admitted that her father drinks on a daily basis. She testified he does not do it a whole lot around them, and he is not constantly drunk. She also testified Joe gets along with her children. Brandy testified that Joe and her father both smoke and admitted the children’s clothes smelled of cigarette smoke.

¶ 19. Brandy testified that she takes the children to the doctor whenever she cannot get them better. She testified that she had never refused to take the children to the doctor when they were sick. She said that, whenever Jasen sends medicine, she gives them the medicine according to the dosage on the label.

¶ 20. Brandy testified her house in not unclean, and she has never left her children unsupervised while they were in her mother’s yard. She testified that there is nothing wrong with her physical or mental health. Brandy testified the children are active and like to play outside. Brandy testified she did not think either she or Jasen is a better parent than the other.

¶ 21. Kermit Morris testified that he saw Brandy’s father drive Caden to football practice and he was intoxicated.

¶ 22. Hedrick, the guardian ad litem, testified about his findings. Hedrick stated that an analysis of the Albright factors may strongly favor Jasen. However, he questioned whether there was an adverse condition that would trigger that analysis. Hedrick testified that Brandy’s current situation overcame the history of instability, because she and Joe seemed to be legitimately buying and fixing up the house.

¶28. To support her finding that a material change in circumstances existed, the chancellor cited the following evidence: (1) Brandy’s numerous residential changes, (2) the children’s repeated illnesses that required medical treatment, (3) the children’s exposure to the maternal grandfather’s alcohol consumption, (4) the fact that the grandfather drove while impaired with Caden in the vehicle, and (5) the children’s exposure to cigarette smoke. The chancellor found that Brandy’s instability had an adverse impact on the children. The chancellor found that the adverse effect manifested itself in the form of Caden’s failing grades and the repeated illnesses of both children that required medical treatment that was paid for by Jasen on most occasions.

¶ 24. Brandy argues that the chancellor’s factual findings differed from the testimony presented at trial, but the record indicates that Brandy admitted that she had changed residences approximately nine times. The children’s medical records indicated that the children, especially Caden, have required medical treatment for various ailments. Brandy testified that Joe Reid and her father both smoke and admitted the children’s clothes smelled of cigarette smoke. Kermit also testified he witnessed the maternal grandfather driving Caden while he was intoxicated. Ca-den’s teacher testified that his grades had dropped to an almost failing level and were very poor. Further, while it is difficult to assess the children’s medical history, the guardian ad litem testified that the children had received somewhat more than normal medical treatment. The chancellor relied upon substantial credible evidence to support her decision that there was a material change of circumstances that adversely affected the children.

¶ 25. Brandy also argues that the guardian ad litem had doubts as to whether there was a material change in circumstances that adversely affected the children. The guardian ad litem’s testimony certainly seems to conflict with the chancellor’s decision. However, decision as to whether there was a material change in circumstances that adversely affected the children was a decision for the chancellor, not the guardian ad litem. The chancellor was “in no way bound by a [guardian ad litem]’s recommendations.” Sullivan v. Sullivan, 102 So.3d 1194, 1198 (¶ 21) (Miss.Ct.App.2012) (citation omitted).

¶ 26. Having reviewed the evidence presented, we cannot say that the chancellor was manifestly wrong or clearly erroneous, or failed to apply the proper legal standard. For these reasons, we find no error and affirm the chancellor’s judgment.

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

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


author: LEE, C.J.,

text:
    Elroy KENNEDY a/k/a Elory Kennedy, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01222-COA.
    Court of Appeals of Mississippi.
    July 23, 2013.

      Elroy Kennedy, appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Elroy Kennedy was indicted on July 22, 2009, by a Choctaw County grand jury for statutory rape of a child under fourteen years of age. Kennedy pleaded guilty to the crime and was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections.

¶ 2. On April 26, 2012, Kennedy filed a petition for post-conviction relief in the Choctaw County Circuit Court, which was subsequently denied. This appeal followed.

STANDARD OF REVIEW

¶ 3. When reviewing a trial court’s denial of a petition for post-conviction relief, we will only disturb the trial court’s factual findings if they are clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review. Doss v. State, 19 So.3d 690, 694 (¶ 5) (Miss.2009) (citations omitted).

DISCUSSION

¶ 4. Kennedy appeals, arguing the trial court erred in denying his petition for post-conviction relief because: (1) he was never indicted by the grand jury; (2) the indictment was defective because it did not contain the foreman’s affidavit; (3) his guilty plea was involuntary; and (4) his counsel was ineffective. We will address the first three issues together, as they are related.

I. INDICTMENT AND GUILTY PLEA

¶ 5. Kennedy argues that he was never indicted by the grand jury because the indictment contains conflicting dates, which indicated that the indictment was forged. He also claims that the indictment was defective because it did not contain the foreman’s affidavit. Additionally, he asserts that if he had known about the faulty indictment, he would not have pleaded guilty, therefore making his guilty plea involuntary.

¶ 6. This Court has repeatedly found that “a valid guilty plea admits all elements of a formal charge and operates as a waiver of all non-jurisdictional defects contained in an indictment or information against a defendant.” McClurg v. State, 758 So.2d 473, 479 (¶ 17) (Miss.Ct.App.2000) (citations omitted). However, a guilty plea “does not waive (1) the failure of the indictment to charge a criminal offense or, more specifically, to charge an essential element of a criminal offense, and ... (2) subject[-]matter jurisdiction.” Id. (citing Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989)).

¶ 7. Kennedy claims that his guilty plea was involuntary. As stated above, in order for defects in an indictment to be waived, the guilty plea must be voluntary. A guilty plea meets the requisite voluntary standard where “the defendant is advised concerning the nature of the charge against him and the consequences of the plea[,]” specifically “that his guilty plea waives multiple constitutional rights.” Hill v. State, 60 So.3d 824, 828 (¶ 11) (Miss.Ct.App.2011) (citations omitted). The burden is on Kennedy “to show his plea was not voluntary.” Id.

¶ 8. The only support Kennedy gives for this argument is that if he had known of the defects in the indictment, he would not have pleaded guilty, and “there would have been a reasonable probability that the outcome of the trial would have been different.” During his guilty-plea hearing, the trial court advised him of the charges against him, the potential sentence, and the constitutional rights he was waiving by pleading guilty. Kennedy stated that he understood the rights he was waiving by pleading guilty. Additionally, Kennedy stated he was pleading guilty because he did not want his daughter to see the trial. The State offered the facts it intended to prove if the case went to trial, and Kennedy stated that he agreed with those facts. The trial court inquired, “[A]re you pleading guilty because you are, in fact, guilty?” And Kennedy answered, “Yes, sir.”

¶ 9. The record is clear that Kennedy was advised concerning the nature of the charge against him and the consequences of the plea, and he stated that he understood both. The Mississippi Supreme Court has held that “[s]olemn declarations in open court carry a strong presumption of verity.” Mowdy v. State, 638 So.2d 738, 743 (Miss.1994) (citations omitted). Also, Kennedy fails to offer any proof that his plea was not voluntary. As a result, we find that Kennedy’s guilty plea was voluntary.

¶ 10. When Kennedy entered his valid guilty plea, he waived all non-jurisdictional defects in the indictment. See McClurg, 758 So.2d at 479 (¶ 17). Kennedy does not assert that the indictment failed to charge a criminal offense, or that the trial court did not have subject-matter jurisdiction; therefore, he fails to meet either exception to the waiver. See id. Additionally, Kennedy failed to object to the indictment. This Court has stated numerous times that “[n]ew issues not presented to the trial court for resolution may not be raised for the first time on appeal.” Bates v. State, 879 So.2d 519, 522 (¶ 7) (Miss.Ct.App.2004). This issue is without merit.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 11. Kennedy argues that his trial counsel was ineffective by failing to object to the alleged defects in the indictment. To succeed on an ineffective-assistance-of-counsel claim, Kennedy must show that his trial counsel’s performance was deficient and that he was prejudiced by that deficiency. See McCollum v. State, 81 So.3d 1191, 1192-93 (¶ 8) (Miss.Ct.App.2012) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Since Kennedy’s claim stems from a guilty plea, he must show that his “counsel’s errors proximately resulted in the guilty plea and, but for [his] counsel’s error, [he] would not have entered the guilty plea.” Id. (quoting Deloach v. State, 937 So.2d 1010, 1011 (¶ 5) (Miss.Ct.App.2006)).

¶ 12. During his guilty-plea hearing, Kennedy stated that he had no complaints about his trial counsel’s representation. When the trial court asked Kennedy if there was anything he wanted his trial counsel to do that he did not do, Kennedy stated, “No, sir.” Kennedy also stated that he agreed with the facts the State claimed it could prove, and that he was pleading guilty because he was guilty.

¶ 13. Mississippi Code Annotated section 99-39-9(l)(e) (Supp.2012) requires that “[a]ffidavits of the witnesses who will testify and copies of documents or records that will be offered shall be attached to the [petition for post-conviction relief].” Here, Kennedy does not offer any affidavits in support of his contention. Kennedy fails to offer any evidence that his trial counsel’s performance was deficient, and he fails to state how he was prejudiced. Therefore, we find that the trial court’s denial of Kennedy’s petition for post-conviction relief was not clearly erroneous.

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

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


author: IRVING, P.J.,

text:
    Robert CHAPMAN a/k/a Robert E. Chapman a/k/a “Rob”, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00355-COA.
    Court of Appeals of Mississippi.
    July 23, 2013.

      W. Daniel Hinchcliff, attorney for appellant.
    Office of the Attorney General, by Lisa Lynn Blount, attorney for appellee.
    Before IRVING, P.J., CARLTON and JAMES, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. A jury convicted Robert Chapman of conspiracy to commit armed robbery and armed robbery. The DeSoto County Circuit Court adjudicated Chapman a habitual offender and sentenced him to life imprisonment on both convictions, with the sentences to be served concurrently with each other, in the custody of the Mississippi Department of Corrections without eligibility for parole or probation. Chapman filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which the circuit court denied.

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

FACTS

¶3. On December 26, 2006, Chapman and his nephew, Joshua Chapman, robbed Dana Ozment, assistant manager of the Citgo Gas Station (Citgo) in Southaven, Mississippi, at gunpoint. Joshua served as Chapman’s getaway driver. The two drove away from the scene. Officer Jason Fernandez, with the Southaven Police Department, intercepted Chapman’s vehicle on Interstate 55 as the pair headed north for Memphis, Tennessee. Officer Fernandez attempted to initiate a traffic stop by turning on his blue lights, but Joshua did not stop the car. Instead, Joshua accelerated, traveling, at times, in excess of 100 miles per hour.

¶ 4. Once the pair crossed into the State of Tennessee, the Memphis Police Department joined the pursuit. Officers followed Chapman and Joshua into the parking lot of an apartment complex, where they were eventually arrested. The bank bag containing the Citgo’s deposit slip, Ozment’s purse, and a Glock pistol were recovered from the vehicle. Chapman confessed his involvement in the robbery to Memphis police officers but denied using a gun.

¶ 5. Prior to trial, Chapman claimed that his confession was taken in violation of his Miranda rights and requested that the circuit court suppress the statement. After a suppression hearing, the circuit court determined that Chapman’s statement was made voluntarily and knowingly under the totality of the circumstances and that the law enforcement officers that interrogated Chapman did not violate Chapman’s Miranda rights. At trial, officers with the Southaven Police Department testified regarding the pursuit and apprehension of Chapman. Two officers from the Memphis Police Department testified to the evidence recovered. Ozment testified about the robbery and identified the recovered items. Joshua testified against Chapman, saying that they had agreed to “pull off a robbery,” that he was the getaway driver, and that Chapman actually committed the robbery. Chapman did not testify, and he did not offer any evidence.

¶ 6. Chapman is represented by the Mississippi Office of Indigent Appeals. Chapman’s appellate counsel filed a brief with this Court pursuant to Lindsey v. State, 939 So.2d 743 (Miss.2005), and declared that he had searched the record but found that no arguable issues existed for appeal. Chapman’s appellate counsel also stated that he had mailed a copy of his brief along with correspondence to Chapman informing Chapman that he failed to find any arguable issues for appeal. He also informed Chapman that he had the right to file a pro se brief, which Chapman has failed to do.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 8. In Lindsey, 939 So.2d at 748 (¶ 18), the Mississippi Supreme Court outlined the procedure that must be followed when appellate counsel for an indigent criminal defendant determines that there are no arguable issues on appeal. Specifically, the 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.

Sanders v. State, 97 So.3d 1259, 1262 (¶ 13) (Miss.Ct.App.2012) (quoting Lindsey, 939 So.2d at 748 (¶ 18)).

¶ 9. Here, Chapman’s appellate counsel complied with the Lindsey requirements. He filed a brief in which he indicated that he had “diligently searched the procedural and factual history of this criminal action and scoured the record searching for any arguable issues which could be presented to the Court on ... Chapman’s behalf in good faith for appellate review, and upon conclusion, ha[d] found none.” Chapman’s attorney specifically stated that, in the search for arguable issues, he examined: (a) the reason for Chapman’s arrest and the circumstances surrounding Chapman’s arrest, (b) any possible violation of Chapman’s right to counsel, (c) the entire trial transcript, (d) all of the circuit court’s rulings, (e) possible prosecutorial misconduct, (f) all jury instructions, (g) all exhibits, whether admitted into evidence or not, (h) possible misapplication of the law in sentencing, (i) the indictment and all the pleadings in the record, (j) any possible ineffective-assistance-of-counsel issues, (k) issues relating to jury instruction, including inappropriate voir dire, misconduct of or affecting the jury, jury composition, and the number of peremptory challenges pursuant to Rule 10.01 of the Uniform Rules of Circuit and County Court, (l) any speedy trial issues in light of the Mississippi Supreme Court’s recent decisions, and (m) sentencing issues, particularly relating to amended indictments charging the defendant as a habitual offender and the proportionality of the defendant’s sentence. Chapman’s attorney also stated that he had informed Chapman that he found no arguable issues for appeal and advised Chapman that he had a right to file a pro se brief. As of this date, this Court has not received a pro se brief from Chapman.

¶ 10. After our own review of the record, we find no arguable issues that would require supplemental briefing. Also, we find no error that would warrant reversal. Accordingly, we affirm the circuit court’s judgment.

¶ 11. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, CONSPIRACY TO COMMIT ARMED ROBBERY, AND SENTENCE AS A HABITUAL OFFENDER OF LIFE; AND COUNT II, ARMED ROBBERY, AND SENTENCE AS A HABITUAL OFFENDER OF LIFE, WITH THE SENTENCE IN COUNT II TO RUN CONCURRENTLY WITH THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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

      . Joshua pleaded guilty to conspiracy to commit armed robbery. He received a "time-served sentence” and probation.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Donnie Ray TUCKER a/k/a Donnie Ray Sumrall a/k/a Donnie Tucker a/k/a Donnie R. Tucker, Appellant v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, Appellee.
    No. 2012-CP-00989-COA.
    Court of Appeals of Mississippi.
    July 23, 2013.

      Donnie Ray Tucker, appellant, pro se.
    James M. Norris, attorneys for appellee.
    Before GRIFFIS, P.J., MAXWELL, and FAIR, J.J.
   GRIFFIS, P.J.,

for the Court.

¶ 1. Donnie Ray Tucker argues that the Mississippi Department of Corrections (MDOC) illegally denied his request for a parole-eligibility date. Since the filing of this appeal, the MDOC has provided Tucker with a parole-eligibility date. Since no controversy exists, we dismiss this appeal as moot.

¶ 2. On August 3, 1989, Tucker was found guilty of murder under Mississippi Code Annotated section 97-3-19 (Rev. 2006). The court sentenced Tucker to serve a life sentence in the custody of the MDOC. Under Mississippi Code Annotated section 47-7-3(1) (Rev.2011), Tucker was eligible for parole after he served ten years of the sentence.

¶ 3. Tucker was released on parole on August 20, 2005. A year later, on August 15, 2006, Tucker’s parole was revoked after he was charged with and convicted of manslaughter under Mississippi Code Annotated section 97-3-35 (Rev.2006). On the manslaughter conviction, Tucker was sentenced to serve twenty years, and the sentence was ordered to run consecutively to his original life sentence. As a result, Tucker is not eligible for parole on the manslaughter sentence, under Mississippi Code Annotated section 47-7-3 (Rev.2011), because he was a subsequent offender.

¶ 4. Tucker filed a petition with the MDOC Administrative Remedy Program when his inmate time sheet showed he was ineligible for parole or any other early release on his 1989 life sentence. The MDOC denied his request for a parole-eligibility date on July 7, 2010. On October 14, 2010, Tucker appealed the decision to the Sunflower County Circuit Court. By order entered January 18, 2011, the circuit court dismissed his appeal without a hearing. The court determined that it lacked jurisdiction because Tucker did not timely file his petition for an appeal. The court also considered the merits of Tucker’s claim.

¶ 5. On December 15, 2011, Tucker filed a petition for a writ of habeas corpus. At a hearing held on May 22, 2012, Tucker argued that he was unlawfully detained without parole based on the information on his inmate time sheet. The circuit court treated the petition as a motion for post-conviction collateral relief and dismissed it. The court held that the petition was a successive writ. From this order, Tucker now appeals.

¶ 6. Tucker argues that he is unlawfully detained because he has not been given a parole-eligibility date for his original life sentence. “[C]ases in which an actual controversy existed at trial[,] but the controversy has expired at the time of review, become moot.” J.E.W. v. T.G.S., 935 So.2d 954, 959 (¶ 14) (Miss.2006) (quoting Monaghan v. Blue Bell, Inc., 393 So.2d 466, 466-67 (Miss.1980)). “A case is moot so long as a judgment on the merits, if rendered, would be of no practical benefit to the plaintiff or detriment to the defendant.” Fails v. Jefferson Davis Cnty. Pub. Sch. Bd., 95 So.3d 1223, 1225 (¶ 10) (Miss.2012) (quoting Gartrell v. Gartrell, 936 So.2d 915, 916 (¶ 8) (Miss.2006)).

¶ 7. When Tucker filed his notice of appeal, an actual controversy existed. His inmate time sheet reflected he was ineligible for parole, and he contested this conclusion. The MDOC has advised this Court that Tucker has been provided a parole-eligibility date. Hence, there is no controversy for our review. No decision we could reach would be of practical benefit to Tucker. See Fails, 95 So.3d at 1225 (¶ 10). Rather, any opinion on the merits would be merely advisory, and “we have no power to issue advisory opinions.” J.E.W., 935 So.2d at 959 (¶ 14) (citation omitted). Accordingly, this appeal is dismissed as moot.

¶ 8. THIS APPEAL IS DISMISSED AS MOOT. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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


author: PITTMAN, Judge.

text:
    Tracy MITCHELL v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    2100184.
    Court of Civil Appeals of Alabama.
    Oct. 7, 2011.

      Thomas W. McCutcheon of McCutcheon & Hamner, P.C., Florence, for appellant.
    A. David Fawal and Sean T. Mims of Beers, Anderson, Jackson, Patty & Fawal, P.C., Birmingham, for appellee.
   PITTMAN, Judge.

This appeal presents a question regarding the proper application of the “common-fund” exception to the so-called “American rule,” which generally bars awards of attorney fees to prevailing parties, in the context of a dispute between an injured insured party and a subrogated insurance carrier over whether the carrier is responsible for a pro rata share of the insured’s attorney fees incurred in the process of obtaining a settlement payment against which the carrier has asserted a right of reimbursement. The common-fund exception as recognized in Alabama is derived from notions of equity and, in matters involving insurance subrogation, proceeds from the proposition that when an insurance carrier “is entitled to share, to the extent of its subrogation interest, in any recovery its insured achieves against a tortfeasor,” that carrier “should bear a proportionate share of the burden of achieving that recovery — including a pro rata share of the insured’s attorney fee.” Government Emps. Ins. Co. v. Capulli, 859 So.2d 1115, 1119 (Ala.Civ.App.2002).

In the case giving rise to this appeal, Tracy Mitchell (“the insured”), who was insured under an automobile-insurance policy issued by State Farm Mutual Automobile Insurance Company (“State Farm”), was injured, and her property was damaged, in a December 2008 automobile collision when the vehicle she was occupying was struck by a second automobile operated by Amy Kirk (“the driver”). The insured then retained counsel to represent her, who, after having agreed to a contingent fee of one-third of any recovery by the insured (plus expenses), interviewed the insured, investigated the scene of the collision, gathered the insured’s medical records, and reviewed those records with the insured.

The insured also made an insurance claim to State Farm, her own insurer, with respect to the collision; pursuant to the medical-payments, collision, and rental-car coverage provisions in its policy, State Farm paid certain sums on behalf of the insured, including $5,000 (the pertinent coverage limit) in medical payments and $7,992.90 in other payments. State Farm further ascertained that the driver was responsible for having caused the collision, and State Farm sent two letters to the driver’s liability insurer, Cotton States Mutual Insurance Company (“Cotton States”), in which State Farm asserted subrogation rights arising under the insured’s policy and demanded from Cotton States a total payment of $12,992.90. Cotton States acceded to State Farm’s demand as to the $7,992.90 sought with respect to payments made under coverages other than for medical payments, but Cotton States notified State Farm that “[t]he balance of the subrogation for medical payments coverages remains outstanding pending the settlem[e]nt of the Bodily Injury claim with [the insured] and her attorney.” State Farm then notified the insured’s attorney by letter that it “intend[ed] to pursue a subrogation claim, without the need for you to represent State Farm, for the” $5,000 medical payment; State Farm further requested the attorney not to “take any action which may jeopardize [its] subrogation rights” and advised that if it “retained] an attorney to represent [its] interests,” it would advise the insured’s counsel of that retention.

The insured’s attorney, in September 2009, prepared and sent a demand-for-settlement letter to Cotton States seeking a payment of the limits of the driver’s insurance policy. The insured’s attorney’s demand-for-settlement letter acknowledged awareness of potential subrogation claims and hens and assured Cotton States that if a settlement was reached, the insured would satisfy all such demands. The insured’s attorney also sent a copy of that demand letter to State Farm and notified State Farm of the insured’s intent to make a claim under the underinsured-motorist coverage of the State Farm policy.

In October 2009, the insured initiated her multicount civil action against the driver, State Farm, and various fictitiously named defendants, stating tort claims stemming from the collision against the driver and the fictitiously named defendants, asserting claims for underinsured-motorists (“UIM”) benefits against State Farm, and, in a tort count against State Farm, alleging the existence of both a fraudulent, bad-faith refusal to pay an insurance claim and a conversion of funds stemming from State Farm’s rejection of the proposition that its subrogation interest was subject to a reduction under the common-fund doctrine. State Farm moved to dismiss the claims against it; as to the tort count, State Farm averred both that the common-fund doctrine was inapplicable and that the individual theories pleaded (i.e., conversion, bad-faith refusal, and fraud) did not state valid claims. The trial court denied that motion after a hearing.

The insured and Cotton States, on behalf of the driver, reached a tentative agreement with the insured regarding a settlement of all actual and potential claims against the driver in exchange for a payment of $35,000. The insured notified State Farm of the proposed settlement, and State Farm, through its counsel, gave the insured its consent to enter into the settlement, but it requested full reimbursement of its $5,000 payment for the insured’s medical expenses. Thereafter, the driver filed an unopposed motion seeking to pay the disputed $5,000 into court pursuant to Rule 22, Ala. R. Civ. P., governing interpleader, and to thereafter be dismissed as a party; the trial court granted that motion, leaving State Farm as the only named defendant.

In June 2010, the insured filed a motion for a partial summary judgment, contending that, as a matter of law, State Farm’s right to recover its $5,000 medical-expense payment was subject to a pro rata reduction for attorney fees based upon the common-fund doctrine. State Farm filed a response in opposition to the insured’s motion, a cross-motion seeking a partial summary judgment in its favor on the tort count asserted against State Farm, and a motion to sever the insured’s UIM-benefits claims against State Farm from the action pursuant to Rule 21, Ala. R. Civ. P. After a hearing, the trial court denied the insured’s motion and granted State Farm’s cross-motion on the basis of that court’s conclusion that the common-fund doctrine did not apply; in the view of that court, State Farm took sufficient affirmative action on its own behalf to avoid the application of the doctrine by virtue of its statement to counsel for the insured that State Farm would protect its own interests. The trial court further directed the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P.; it did not rule on the motion to sever.

In their appellate briefs, the parties have largely reiterated their opposing positions regarding the common-fund doctrine that they advanced in the trial court. The insured posits that the common-fund doctrine applies in this case and that it mandates that State Farm’s right to recovery of its $5,000 payment be subject to a pro rata share of the attorney fees incurred in obtaining it; in the insured’s view, the trial court’s judgment must be reversed because the trial court did not properly apply the common-fund doctrine. State Farm defends the trial court’s judgment by rejecting the insured’s premise that the common-fund doctrine applies, arguing that (a) no “common fund” arose; (b) State Farm’s active participation in the settlement process renders the common-fund doctrine inapplicable; and (c) the provisions of the State Farm policy abrogate any application of the common-fund doctrine in the context of the parties’ dispute.

As we held in Capulli, supra, there are but two core requirements for applying the common-fund doctrine in the context of an insurer’s right of repayment stemming from its subrogation to the rights of its insured by virtue of paying a claim under the applicable policy of insurance: “(1) there must be a ‘fund’ from which to compensate the attorney; and (2) the attorney’s services must directly benefit the fund.” 859 So.2d at 1122. We disagree with State Farm that, as a matter of law, no “fund” came into being in this case in light of the undisputed facts that (a) the insured retained counsel to represent her interests in obtaining compensation from the driver for the insured’s injuries and losses stemming from the automobile collision at issue; (b) counsel for the insured diligently investigated the merits of the insured’s case against the driver, sent a demand letter to the driver’s liability-insurance carrier (Cotton States), and brought a civil action to recover damages on the insured’s behalf; and (c) counsel for the insured ultimately secured a $35,000 settlement from Cotton States (of which $5,000 was later paid into court to be subjected to the competing claims of the parties to this appeal). Although State Farm may be correct in noting that Cotton States had indicated to State Farm its acceptance of the proposition that the driver was at fault in the collision on January 9, 2009, a few days after the collision, there is no indication in the record that before the insured hired counsel on January 6, 2009, Cotton States had agreed to pay anything to State Farm or to the insured; further, the record affirmatively indicates that Cotton States declined to meet State Farm’s direct subrogation demand against Cotton States to the extent that State Farm sought repayment for its $5,000 medical-benefits payment on behalf of the insured. We thus cannot agree with the proposition advanced by State Farm that the insured’s attorney did not exert efforts that gave rise to a fund that would ultimately have the capacity to benefit the interests of both the insured and State Farm (which asserted a claim to the fund immediately upon receiving notice that a settlement had been reached between the insured and Cotton States).

Having determined that a common fund did indeed arise, we next consider whether State Farm is nonetheless entitled to avoid the effect of the common-fund doctrine based upon either of the two rationales it has advanced. First, we note that State Farm correctly cites Ex parte State Farm Fire & Casualty Co., 764 So.2d 543 (Ala.2000), for the proposition that legal principles inhering in the law of subrogation, such as the general precept that an insurer that has paid claims of its insured has no subrogation rights against a tortfeasor who harmed the insured until the insured has been “made whole”, (ie., has been fully compensated), may properly be modified or abrogated by contrary provisions agreed upon by parties to a written contract. Although we agree with that proposition, and note that State Farm’s policy contains language expressly providing that State Farm’s subrogation rights as to payments made on behalf of any person apply “regardless of whether or not the person ... to or for whom [it makes] payment is fully compensated for damages sustained,” we do not agree with State Farm’s ultimate contention that its policy similarly abrogates the common-fund doctrine.

The policy language relied upon by State Farm in this context provides:

“If we are obligated under this policy to make payment to or for a person or organization who has a legal right to collect from another person or organization, then we will be subrogated to that right ■ to the extent of our payment. This applies regardless of whether or not the person or organization to or for whom we make payment is fully compensated for damages sustained in the accident.
“If we make payment under this policy and the person or organization to or for whom we make payment recovers or has recovered from another person or organization, then the person or organization to or for whom we make payment must:
“(1) hold in trust for us the proceeds of any recovery; and
“(2) reimburse us to the extent of our payment.
“This applies regardless of whether or not the person or organization to or for whom we make payment is fully compensated for damages sustained in the accident.”

(Emphasis omitted.) We note that, unlike the express negation of the “make-whole” doctrine, the State Farm policy does not expressly refer to potential attorney-fee claims in any way.

Although State Farm cites three opinions issued by various Alabama circuit-court judges tending to support its position that the policy provisions quoted herein negate the common-fund doctrine, “a circuit court case ... has no precedential authority.” Taylor v. State, [Ms. CR-05-0066, October 1, 2010] - So.3d -, - (Ala.Crim.App.2010). In fact, as this court has noted, the equitable right of an insured to withhold a pro rata attorney fee under the common-fund doctrine “[i]n the case of an insured’s recovery of damages in which the insurer has an interest as subrogee after payment to the insured” may arise “aside from contract.” Blue Cross & Blue Shield of Alabama v. Freeman, 447 So.2d 757, 759 (Ala.Civ.App.1983) (citing State Farm Mut. Auto. Ins. Co. v. Clinton, 267 Or. 653, 518 P.2d 645 (1974)). No fewer than three states’ highest courts — those of Oregon (Clinton, 267 Or. at 662, 518 P.2d at 649), Maine (York Ins. Group of Maine v. Van Hall, 704 A.2d 366, 369 (Me.1997)), and Vermont (Guiel v. Allstate Ins. Co., 170 Vt. 464, 469-70, 756 A.2d 777, 781 (2000)), have held that governing provisions of statutes or contracts providing for an insurer’s right of reimbursement to the extent of its payment do not unambiguously negate the application of the common-fund doctrine as to any recovery obtained by an insured that is to be held in trust for the benefit of that insurer. In the absence of language in the State Farm policy demonstrating a clear intent to negate the application of the common-fund doctrine to an insured’s recovery of damages from a third party, we are persuaded that the mere presence of subrogation and reimbursement clauses in the State Farm policy do not support the trial court’s summary judgment in favor of State Farm.

We last consider State Farm’s argument that, as a matter of law, the common-fund doctrine was negated by its “active participation.” As we noted in Capulli the “active-participation” defense to the applicability of the common-fund doctrine requires a showing that “the party sought to be charged with the attorney fee actively participated in producing the fund,” i.e., that the insurer ‘“actively participated in or its efforts substantially contributed to the creation or preservation of the subrogated fund.’ 859 So.2d at 1126 (quoting Johnny Parker, The Common Fund Doctrine: Coming of Age in the Law of Insurance Subrogation, 31 Ind. L.Rev. 313, 335 (1998)) (emphasis added).

Here, as we have noted, the pertinent “fund” is the gross $35,000 recovery obtained by the insured, through her counsel, pursuant to the settlement reached with the driver’s insurer, Cotton States. As to that recovery, State Farm did nothing to aid the insured or its attorney; for all that appears in the record, State Farm did not assist the insured’s counsel in investigating the insured’s potential tort claim against the driver or in prosecuting the action against the driver once it was filed. Although State Farm notified counsel for the insured that it intended to pursue its own subrogation claim and indicated that counsel’s services on its behalf would not be necessary before suit had been filed and Cotton States had agreed to settle the insured’s claims against the driver, State Farm was content to assert a claim for full reimbursement against the recovery obtained after the recovery became a reality rather than a contingency. State Farm’s insistence that its separate extrajudicial dealings with Cotton States to obtain reimbursement, and its declarations of its intent to seek full reimbursement, amount to “active participation” simply does not comport with the necessity that the doctrine yield only to a showing that an insurer has helped create or preserve a subrogated fund; rather, it appears from the record in this case that State Farm, as occurred in Alston v. State Farm Mutual Automobile Insurance Co., 660 So.2d 1314, 1316 (Ala.Civ.App.1995), did nothing more of note than “rel[y] on [an insured’s] attorney to generate the benefits that it received from the common fund.”

Based upon the foregoing facts and authorities, we conclude that the trial court erred in determining that the common-fund doctrine did not apply to the $5,000 paid into court by the driver pursuant to the settlement reached between the driver and the insured. We reverse that judgment, and we remand the case for further proceedings.

REVERSED AND REMANDED.

THOMPSON, P.J., and THOMAS and MOORE, JJ., concur.

BRYAN, J., concurs in the result, without writing.

      . Although the driver was listed as an appel-lee in the insured’s notice of appeal, we have restyled the appeal to reflect the sole remaining real parties in interest.

      . Although the trial court’s judgment refers to its judgment as being in favor of State Farm only as to "the issue of the common fund doctrine” (emphasis added), and although Rule 54(b) certifications may not properly be made as to only part of a claim, see generally Certain Underwriters at Lloyd's, London v. Southern Natural Gas Co., 939 So.2d 21, 27-29 (Ala.2006), the practical effect of the trial court’s ruling on the parties’ summary-judgment motions, coupled with its decision not to rule on the contract claims asserted against State Farm by the insured, was to preclude the insured from recovering on any claims stated in the tort count in her complaint. We thus conclude that the judgment from which the insured has timely appealed is final pursuant to Ala.Code 1975, § 12-21-2.

      . In Capulli, we cited Guiel with approval as to several aspects of its discussion of the common-fund doctrine. Capulli, 859 So.2d at 1125, 1126.

      . As the Supreme Court of Idaho noted in Wensman v. Fanners Ins. Co. of Idaho, 134 Idaho 148, 152, 997 P.2d 609, 613 (2000) (quoting Mahler v. Szucs, 135 Wash.2d 398, 427, 957 P.2d 632, 648 (1998)), State Farm’s rejection of the insured’s attorney as its own representative is not pertinent in this regard: " 'Consent to counsel by the benefited party is not required in common fund cases. If consent were required, there would be no common fund rule at all.’ ”