author: IRVING, P.J.,

text:
    William Antonio AVERY a/k/a William A. Avery a/k/a William Ken Avery a/k/a William A. “Ken” Avery a/k/a Ken, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-02058-COA.
    Court of Appeals of Mississippi.
    June 19, 2012.
    Rehearing Denied Dec. 11, 2012.

      Chokwe Lumumba, Jackson, Imhotep Alkebu-Lan, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before IRVING, P.J., ISHEE and RUSSELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. A Lauderdale County jury convicted William Antonio Avery of selling cocaine and felony fleeing. The circuit court sentenced Avery to sixty years for the sale-of-cocaine conviction and five years for the felony-fleeing conviction. The circuit court ordered the sentences to run concurrently with each other, without eligibility for parole or probation, but consecutively to Avery’s sentences in Lauderdale County cause numbers 645-02 and 691-06, all in the custody of the Mississippi Department of Corrections (MDOC).

¶ 2. Following the circuit court’s denial of his motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, Avery appeals and presents several issues for review, which we have recast for clarity: (1) whether he was entitled to a mistrial; (2) whether he was entitled to a new trial based on the State’s violation of Rule 3.05 of the Uniform Rules of Circuit and County Court; (3) whether he was denied his right to compulsory process; (4) whether the circuit court and the prosecutor infringed upon his right not to testify; (5) whether the circuit court erred during post-trial proceedings; and (6) whether the cumulative effect of these errors deprived him of his right to a fair trial.

¶ 3. Finding no reversible error, we affirm.

FACTS

¶ 4. On March 30, 2010, the East Mississippi Drug Task Force and the Meridian Police Department arranged for Jason Hughes, a confidential informant, to buy drugs from Avery. Officers wired Hughes with an audio-visual recording device, and Hughes then went to meet Avery. Hughes purchased twenty dollars worth of crack cocaine from Avery, which he later turned over to the police who were waiting nearby. Immediately following the sale, the police attempted to arrest Avery. However, Avery fled in his vehicle, and a police pursuit ensued, which eventually resulted in Avery’s arrest. Avery was later tried and convicted of selling cocaine and felony fleeing.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Mistrial

¶ 6. Avery offers two bases for his entitlement to a mistrial. First, he contends that he was entitled to a mistrial after Cynthia Cole, a prospective juror, stated during voir dire that she was aware of his case because, on the day of his arrest, she was “run off the road by him” during his flight from the police. Avery argues that Cole’s statement denied him his right to a fair trial. Second, Avery alleges that the circuit court erred in allowing law enforcement officers to testify that they knew him prior to his arrest for selling cocaine. Inexplicably, Avery further contends that the officers’ testimony concerning their prior knowledge of him somehow constitutes impermissible character evidence. He admits that he did not object at trial to the matters of which he now complains and asks that we review them under the plain-error doctrine.

¶ 7. “Under the doctrine of plain error, [an appellate court] can recognize obvious error which was not properly raised by the defendant on appeal, and which affects a defendant’s ‘fundamental, substantive right.’ ” Corbin v. State, 74 So.3d 333, 337 (¶ 11) (Miss.2011) (internal footnotes and citations omitted). The Mississippi Supreme Court has previously held that the right to a fair trial by an impartial jury is a fundamental right. Brawner v. State, 947 So.2d 254, 261 (¶ 17) (Miss.2006). Because Avery argues that Cole’s statement during voir dire deprived him of a fair trial by an impartial jury, we will review the issue for plain error.

¶ 8. The circuit court “must declare a mistrial when there is an error in the proceedings resulting in substantial and irreparable prejudice to the defendant’s case.... ” Sipp v. State, 936 So.2d 326, 331 (¶ 7) (Miss.2006) (citing Tate v. State, 912 So.2d 919, 932 (¶ 41) (Miss.2005)). In the context of a venire member’s comments, “a defendant fails to show the necessary prejudice where the defense counsel fails to question jurors about an inappropriate comment, and the venire members have made general declarations that they could set aside them prejudices and reach a decision based on the evidence.” Ross v. State, 954 So.2d 968, 988 (¶ 32) (Miss.2007) (citations omitted).

¶ 9. Here, after Cole’s comment that Avery had run her off the road while he was fleeing from the police, she was removed from the venire panel. Following Cole’s removal, Avery’s counsel did not question the remaining prospective jurors about the effect of the comment, if any. However, the remaining prospective jury members declared that they would be able to reach a decision based solely on the evidence presented. Thus, Avery has failed to show that Cole’s comment prejudiced the jury. This issue is without merit.

¶ 10. Avery’s second basis for a mistrial is also without merit. While Officers Greg Lea, Karl Merchant, and Daniel Boyd testified that they knew Avery before the day of his arrest, they did not testify as to how they knew him. Specifically, the officers never testified to any additional crimes that Avery had committed, if any. Instead, the officers’ testimonies were offered to identify Avery and, therefore, did not constitute inadmissible character evidence.

2. Violation of Rule 3.05

¶ 11. Avery argues that he is entitled to a new trial because the State violated Rule 3.05 when it asked the venire to commit to a guilty verdict based on a hypothetical set of facts. Rule 3.05 provides, in pertinent part, that “[n]o hypothetical questions requiring any juror to pledge a particular verdict will be asked.” Avery admits that he failed to object to the prosecutor’s statements during voir dire and now relies on plain error. This Court has previously reviewed alleged violations of Rule 3.05 for plain error. Cotton v. State, 790 So.2d 235, 237-38 (¶¶ 2-3) (Miss.Ct.App.2001).

1112. During voir dire, the prosecutor stated:

And very briefly, ladies and gentlemen, I expect the facts will be that on the— that in March, the East Mississippi Drug Task Force had a man named Jason Hughes[,] who was working as what they call a confidential source, CS, or confidential informant, Cl; and that Mr. Hughes was tasked with making some undercover drug buys for them. Mr. Hughes was working for them because they had charged him with a drug crime, and he decided that he wanted to help himself out, so to speak, and they gave him that opportunity.
The agents wired him with audio and video surveillance equipment, and they sent him to make a buy. Where he made the buy was off King Road here in Lauderdale County where ... he met Mr. Avery[,] who was seated in his—in a pickup—an SUV I guess you’d say[—]at a residence there in the driveway. And walked up to him. They made an exchange of cash; that is, cash that was given to him by the narcotics officers in exchange for rocks or pieces of crack cocaine. Mr. Hughes left there to meet with the other agents. And in the meantime, Agent Fairchild attempted to stop Mr. Avery to arrest him for the charge. And at that time, a high[-]speed chase through Lauderdale County took place....
Now, I say that for this reason-I give you all that information for this reason: If the law is substantially what I told you I thought it would be[,] and if you believe those facts that I’ve given you to be the truth beyond a reasonable doubt, is there anyone here for any reason at all who could not return a verdict of guilty on both of those counts against Mr. Avery? It’s okay. You can have a bad reason, but I just need to know that now.

¶ 13. Our supreme court has held that “[i]t is reversible error to ask a juror during voir dire to commit to returning a particular verdict.” Simmons v. State, 805 So.2d 452, 505 (¶ 147) (Miss.2001) (quoting Stringer v. State, 500 So.2d 928, 938 (Miss.1986)). However, reversal is not required unless “the natural and probable effect of the improper argument of the prosecuting attorney [creates] an unjust prejudice against the accused [and results] in a decision influenced by the prejudice so created.” Cotton, 790 So.2d at 238 (¶ 3) (quoting Davis v. State, 660 So.2d 1228, 1248 (Miss.1995)). Furthermore, reversal is not required “where the prosecutor does not ‘specifically’ request or require that the venire pledge a verdict one way or another in response to his question and comments during voir dire.” Id. at (¶ 4) (italics omitted) (citing Robinson v. State, 726 So.2d 189, 191-92 (¶ 6) (Miss.Ct.App.1998)).

¶ 14. The prosecutor’s statements were not a direct request for a verdict; thus, Rule 3.05 was not violated. The statements were aimed at determining whether the State would be held to a higher burden of proof than beyond a reasonable doubt and whether the prospective jury members harbored any biases that would influence their deliberations. Additionally, reversal is not required here because there is no evidence of prejudice against Avery resulting from the State’s comments. Accordingly, this issue is without merit.

3. Compulsory Process

¶ 15. Avery asserts that he was denied the right to confront the witnesses against him because he was not allowed to call MDOC General Counsel David Scott as a witness. However, as the State correctly points out, Avery’s argument relates to his right to call witnesses in his favor or his right to compulsory process. Prior to trial, the State filed a motion in limine to exclude Scott’s testimony as irrelevant. The circuit court granted the motion.

¶ 16. A circuit court’s decision to exclude or admit evidence will not be reversed unless the circuit court abused its discretion. Williams v. State, 54 So.3d 212, 213 (¶ 5) (Miss.2011). However, “when testimony is excluded at trial, a record must be made of the proffered testimony in order to preserve the point for appeal.” Abernathy v. State, 30 So.3d 320, 325 (¶ 19) (Miss.2010) (quoting Murray v. State, 849 So.2d 1281, 1289 (¶ 32) (Miss.2003)). Avery failed to make a proffer of Scott’s testimony after the circuit court excluded it. Without the proffer, this Court cannot determine whether Scott’s testimony would have been relevant or whether the circuit court erred in excluding the testimony. This issue is without merit.

A Avery’s Decision Not to Testify

¶ 17. First, Avery argues that the circuit court erroneously told him that his prior convictions could be inquired about on cross-examination. According to Avery, the circuit court’s advisement had a “chilling effect” on his decision to testify. Second, Avery contends that the prosecutor impermissibly commented upon his failure to testify. Avery asserts that both of these errors entitled him to a new trial.

a. Admonition by the Circuit Court

¶ 18. “When a criminal defendant chooses to testify, his prior criminal convictions may—in limited circumstances—be introduced for impeachment purposes.” Sea v. State, 49 So.3d 614, 618 (¶ 15) (Miss.2010). However, before the State is allowed to cross-examine the defendant about his prior convictions, the circuit court must make an on-the-record finding that the probative value of the prior convictions substantially outweighs their prejudicial effect. See id. at (¶ 16). Furthermore, if the defendant chooses not to testify after the circuit court’s ruling, the defendant is procedurally barred from arguing on appeal that the court’s ruling had a “chilling effect” on his right to testify unless he proffers his proposed testimony. McClellan v. State, 34 So.3d 548, 553 (¶ 18) (Miss.2010).

¶ 19. Avery did not make a proffer of his testimony. Thus, this issue is procedurally barred. Procedural bar aside, this issue is also without merit. After the State rested, Avery requested a directed verdict, which the circuit court denied. Avery then informed the court that he did not intend to testify. Thus, the record clearly indicates that Avery made his decision not to testify prior to any comments from the circuit court regarding prior convictions. Accordingly, this issue is without merit.

b. Prosecutor’s Closing Argument

¶ 20. When reviewing a challenge to the prosecution’s opening and closing statements, an appellate court must consider “whether the natural and probable effect of the improper argument [creates] unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Anderson v. State, 62 So.3d 927, 939 (¶ 39) (Miss.2011) (quoting Tate v. State, 20 So.3d 623, 629 (¶ 14) (Miss.2009)). Moreover, while a direct reference to the defendant’s failure to testify is strictly prohibited, the State is, nevertheless, entitled to comment on the lack of a defense, and “such comment will not be construed as a reference to the defendant’s failure to testify by innuendo and insinuation.” Wright v. State, 958 So.2d 158, 161 (¶ 7) (Miss.2007) (citing Shook v. State, 552 So.2d 841, 851 (Miss.1989)).

¶ 21. During closing arguments, Avery’s counsel insisted that there was no proof that the transaction between Hughes and Avery was a drug transaction. During rebuttal, the State responded:

And you see that clearly on the video. What’s he selling? Where is there any evidence that it was, I don’t know, chewing gum? What could it be? What do you get for something that’s in the palm of your hand? The rules say, law says do not speculate; base your verdict on the evidence. Nobody came in here and said, [“] Oh, he was selling him, I don’t know, a pair of earrings, you know, a pair of little diamond earrings or something.[”] Did anybody say that? No. Well, Mr. Denson wants you to speculate that he was selling him some earrings. The problem with that is that there has to be some evidence of it, and there is none.

¶ 22. The State’s argument during rebuttal was not an improper reference to Avery’s failure to testify. The State was simply pointing out that Avery’s position— that the sale was not a drug transaction— was not supported by the evidence. There was no direct reference to Avery’s failure to testify, and the argument did not imply that his failure to testify indicated guilt. Consequently, this issue is without merit.

5. Post-trial Proceedings Regarding Violation of Rule 615 of the Mississippi Rules of Evidence and Juror Misconduct

¶ 28. Following Avery’s trial and resulting guilty verdict, he discovered that the circuit court may have improperly communicated with Kim Watts, a juror, and influenced the jury’s decision. He filed a motion seeking a hearing on the matter. Prior to the commencement of the hearing, Avery requested that the witnesses be sequestered. The circuit court denied the request.

a. Rule 615 Violation

¶ 24. Rule 615 provides, in pertinent part: “At the request of a party[,] the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion.” Rule 615 assists the court in detecting testimony that is untruthful, and “it [restrains] witnesses [from] Tailoring’ their testimony to that of earlier witnesses.” Finley v. State, 725 So.2d 226, 283 (¶ 21) (Miss.1998) (quoting Douglas v. State, 525 So.2d 1312, 1316 (Miss.1988)). Under Rule 615, when a party asks the court to sequester the witnesses, the circuit court must comply. Id. at (¶ 22). Therefore, the circuit court erred when it failed to sequester the witnesses per Avery’s request. However, an appellate court “will not per se reverse a trial court for failing to order a mistrial or to exclude testimony after a witness[-]ex-elusion[-]rule violation. The resultant degree of prejudice to the defendant must first demonstrate that the trial court abused its discretion.” Id. (citing Douglas, 525 So.2d at 1317). Thus, Avery must show that he was prejudiced by the circuit court’s failure to invoke the rule. In an attempt to demonstrate prejudice, he alleges that Watts conformed her testimony to the court’s version of the facts. To determine what prejudice, if any, occurred as a result of the court’s communication with Watts, we find it necessary to first discuss the evidence that gave rise to Avery’s claim.

b. Juror Misconduct

¶ 25. Although there is a general disdain for probing jurors after the verdict for potential instances of extraneous influences, our supreme court has outlined the proper procedure for circuit courts to follow in suspected-juror-misconduct cases. Our supreme court has stated that:

Once an allegation of juror misconduct arises, then the next step is to consider whether an investigation is warranted. In order for the duty to investigate to arise, the party contending there is misconduct must make an adequate showing to overcome the presumption in this state of jury impartiality. Juror polling shall only be permitted by an attorney, outside the supervision of the court, upon written request.
At the very minimum, it must be shown that there is sufficient evidence to conclude that good cause exists to believe that there was in fact an improper outside influence or extraneous prejudicial information.

Moore v. State, 52 So.3d 339, 342-43 (¶ 14) (Miss.2010) (quoting Gladney v. Clarksdale Beverage Co., 625 So.2d 407, 418 (Miss.1993)).

¶ 26. The judge admitted that he had a conversation with Watts’s boss, Jamie Cater, on the night before the jury began deliberations. Cater owned a catering company and, according to the judge, needed Watts back at work to make dressing. The judge explained that he told Cater that he thought that the jury would begin deliberations the following morning and might have a decision by noon. Additionally, the judge related that the following morning, Watts approached him about needing to get back to work, and he told her that he thought that the jury would begin its deliberations that morning. He denied telling Watts that the jury should have a decision by noon.

¶ 27. Watts testified that, on the morning in question, she was the last juror to arrive at the courthouse. As the bailiff escorted Watts to the jury room, she mentioned to the judge that she needed to get back to work and start making dressing. Watts further testified that the judge did not respond to her comment about needing to get back to work and also did not say that the jury should have a decision by noon. Watts could not recall if anyone else heard her comment to the judge about needing to get back to work.

¶ 28. Elaine Moss, another jury member, testified that she remembered Watts coming into the jury room and saying that her boss had spoken with the judge and that the judge said that they should be finished by noon. Moss explained that she did not understand what Watts’s statement meant and that the statement did not influence her deliberations. Additionally, Moss testified that she could not remember if other jurors were present when Watts made her statement, and she did not talk to anyone about Watts’s statement.

¶ 29. Cater testified that, the night before the jury began its deliberations, she saw the judge while she was at dinner. She explained to the judge that she was more tired than usual because one of her employees was serving as a juror. According to Cater, the judge told her that he thought the case would be over by noon the following day. Cater testified that she did not contact Watts after her conversation with the judge, but she did tell her staff that the judge thought that Watts would be returning to work soon.

¶ 30. Margaret Brown, Avery’s mother, testified that she remembered seeing Watts approach the judge and say, “I got your message last night.” Brown explained that the judge replied, “What was that?” and that Watts responded, “That this Court — that court will be over by 12:00 and to bring a pan of dressing.” Brown testified that Watts giggled after the comment about the dressing. Shawa-na Avery, Avery’s wife, testified that she heard the same conversation as Brown.

¶ 31. Based on the above, Avery has failed to present sufficient evidence to overcome the presumption of jury impartiality. He has also failed to establish by clear evidence that Watts and the circuit judge engaged in improper communication. Consequently, he has not shown any prejudice as a result of the circuit court’s refusal to sequester the witnesses. This issue is without merit.

6. Cumulative Error

¶ 32. Finally, Avery asserts that the cumulative errors in this case require reversal of his convictions and remand for a new trial. However, as we have found no reversible error, this issue is without merit.

¶ 33. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, SALE OF COCAINE, AND SENTENCE OF SIXTY YEARS; COUNT II, FELONY FLEEING, AND SENTENCE OF FIVE YEARS, WITH THE SENTENCES TO RUN CONCURRENTLY BUT CONSECUTIVELY TO THE SENTENCES IN LAUDERDALE COUNTY CAUSE NUMBERS 645-02 AND 691-06, 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 THE APPELLANT.

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


source: Caselaw Access Project

author: MAXWELL, J., GRIFFIS, P.J.,

license: Public Domain

text:
    David L. MARTINDALE, Appellant v. HORTMAN HARLOW BASSI ROBINSON AND McDANIEL PLLC, Appellee.
    No. 2010-CA-02077-COA.
    Court of Appeals of Mississippi.
    Oct. 2, 2012.
    Rehearing Denied April 9, 2013.
    Certiorari Denied Aug. 1, 2013.

      Clyde H. Gunn III, Christopher C. Van Cleave, David Neil Harris Jr., William Corban Gunn, Biloxi, attorneys for appellant.
    John G. Corlew, Virginia T. Munford, attorneys for appellee.
   MAXWELL, J.,

for the Court:

¶ 1. The members of a Mississippi law firm, operating as a professional limited liability company, voted unanimously to expel one of their fellow members, David L. Martindale. Under the terms of the firm’s operating agreement, upon expulsion of a member, the remaining members were required to either (1) dissolve the company or (2) pay the terminated member $1,100 for each percentage point of membership interest owned. The remaining members voted to pay Martindale $19,800 for his eighteen-percent interest rather than dissolve the firm. The firm then filed for declaratory relief, alleging it had satisfied its contractual obligations to Martindale. The chancellor agreed and granted summary judgment in the firm’s favor. While Martindale argues the result is unjust and that the chancellor had equitable powers to provide him a more favorable figure, we find the firm followed the unambiguous terms of its operating agreement when paying Martin his membership interest upon expulsion. We find no error in the chancellor’s grant of summary judgment in the law firm’s favor and affirm.

Facts and Procedural History

¶ 2. David L. Martindale practiced law in Laurel, Mississippi, with Hortman Harlow Bassi Robinson & McDaniel PLLC for approximately fourteen years. Martindale was a member of the firm in 2006 when it undertook the representation of Billy Jack McDaniel, a plaintiff injured in an oil-field accident in Texas. The law firm anticipated a substantial recovery and devoted nearly all of its resources to litigating McDaniel’s personal-injury case. Martin-dale — who was not directly involved in McDaniel’s representation — openly questioned and criticized the extent of these expenditures. He believed the attention placed on the McDaniel case negatively impacted the firm’s other fee-generating business. Martindale’s criticisms persisted, allegedly creating tension between himself and the other members.

¶ 3. Hortman Harlow’s operating agreement provided for the expulsion of any member by a unanimous vote of the other members. Upon expulsion of a member, the operating agreement instructed the remaining members to either (1) dissolve the company or (2) pay the terminated member $1,100 for each percentage point of membership interest he or she owned. On February 24, 2009, the law firm notified Martindale of his expulsion by a unanimous vote of the other members. The firm elected not to dissolve the company, but rather, as permitted by the operating agreement, tendered Martindale a check for $19,800, representing his eighteen-percent membership interest. Martindale refused to accept the check, claiming $19,800 did not reflect his fair share of the law firm.

1Í 4. On May 6, 2009, Hortman Harlow filed for declaratory relief in the Jones County Chancery Court, alleging it had fulfilled its contractual obligations to Mar-tindale under the operating agreement. Martindale counterclaimed, seeking the fair value of his membership interest as well as actual and punitive damages for assault, battery, and intentional infliction of emotional distress. In September 2009, the McDaniel case settled, and Hortman Harlow received approximately $7,655,000 in attorneys’ fees. Martindale sought a preliminary injunction prohibiting the law firm from disbursing his alleged share of the fee. The chancery court granted the injunction and ordered Hortman Harlow to set aside eighteen percent of the fee pending resolution of the dispute.

¶ 5. Hortman Harlow then moved for partial summary judgment with respect to its claim for declaratory relief and Martin-dale’s non-tort counterclaims. At issue was whether the operating agreement provided Martindale’s exclusive remedy for payment after his expulsion. The chancery court found the language of the agreement clear and unambiguous and granted partial summary judgment in Hortman Harlow’s favor.

Standard of Review

¶ 6. We conduct a de novo review of a trial court’s grant or denial of a motion for summary judgment. Lewallen v. Slawson, 822 So.2d 236, 237 (¶ 6) (Miss.2002) (citations omitted). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that 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.” M.R.C.P. 56(c). In determining the propriety of summary judgment, we view the facts in the light most favorable to the nonmovant. Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (¶ 12) (Miss.1999).

Discussion

¶ 7. Because Martindale did not challenge the firm’s contractual authority to terminate his membership, we need not consider whether Martindale’s expulsion was proper. Instead, our inquiry is limited to deciding whether Hortman Harlow satisfied its contractual obligations to Mar-tindale after his expulsion. Specifically, we must decide if sections 9.2(a) and 9.5 of the law firm’s operating agreement provided Martindale’s exclusive right to payment after his expulsion.

I. Whether Hortman Harlow’s operating agreement or Mississippi law provides Martindale with any right to additional payment.

¶ 8. Section 9.5 of Hortman Harlow’s operating agreement states: “Upon the termination of a Member’s Membership Interest under Section 9.1(b) ..., the other Members may elect either (1) to pay an amount equal to the terminated Members [sic] points as calculated pursuant to Section 9.2(a) less any debt to the company; or (2) to dissolve the Company....” Section 9.2(a) provides the payment formula for a terminated member’s interest in the law firm: “The terminating Member shall receive an amount equal to One Thousand One Hundred and No/100 Dollars ($1,100.00), multiplied by each percentage point of Membership Interest owned by the terminating Member as set forth on Schedule “B” in lieu of his positive capital account balance.... ”

¶ 9. In Mississippi, “an LLC operating agreement is a contract” and should be interpreted according to contract law. Bluewater Logistics, LLC v. Williford, 55 So.3d 148, 159 (¶ 45) (Miss.2011). We generally apply a three-step analysis when reviewing contract interpretation. Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 752 (¶ 10) (Miss.2003). The first step requires that we determine whether the contract is ambiguous. Id. If it is not, we must “accept the plain meaning of a contract as the intent of the parties.” Ferrara v. Walters, 919 So.2d 876, 882 (¶ 13) (Miss.2005) (citations omitted). If we cannot ascertain the contract’s meaning and the parties’ intent within the contract’s “four corners,” we apply the “ ‘canons’ of contract construction.” Cherokee Ins. Co. v. Babin, 37 So.3d 45, 48 (¶ 8) (Miss.2010). If the meaning of the contract is still ambiguous, we turn to extrinsic evidence. Royer Homes, 857 So.2d at 753 (¶ 11).

10. However, in summary-judgment cases, reviewing courts must focus solely on the first step of the analysis and determine whether the contract is ambiguous. If it is not, the “parties are bound by the language of the instrument.” Delta Pride Catfish, Inc. v. Home Ins. Co., 697 So.2d 400, 404 (Miss.1997) (quoting Cherry v. Anthony, Gibbs, Sage, 501 So.2d 416, 419 (Miss.1987)). But if the contract’s terms are ambiguous or subject to more than one interpretation, summary judgment must be reversed and the case should proceed to trial. Royer Homes, 857 So.2d at 752 (¶ 8).

A. Review for Ambiguity

¶ 11. Our review for ambiguity requires that we consider the express wording of the contract as a whole. Babin, 37 So.3d at 48 (¶ 8). We must “accept the plain meaning of a contract as the intent of the parties where no ambiguity exists.” A & F Props., LLC v. Madison Cnty. Bd. of Supervisors, 933 So.2d 296, 301 (¶ 12) (Miss.2006) (quoting Ferrara, 919 So.2d at 882 (¶ 13)). “The mere fact that the parties disagree about the meaning of a provision of a contract does not make the contract ambiguous as a matter of law.” Delta Pride Catfish, 697 So.2d at 404.

¶ 12. Here, the plain language of section 9.5 enumerates that when Hortman Harlow expels a member, the remaining members may either (1) pay the terminated member an amount calculated under the formula in section 9.2(a) or (2) dissolve the law firm and share the liquidation proceeds with all members, including the terminated member. Section 9.2(a) then provides that a terminated member shall receive $1,100 for each “percentage point of membership interest owned by the terminated member.” This payment is tendered “in lieu of [a terminated member’s] positive capital account balance.” We find the only reasonable interpretation of sections 9.2(a) and 9.5 is that the parties intended for these sections to provide a member’s exclusive right to compensation upon his or her expulsion.

B. Section 13.10 and Additional Remedies

¶ 13. While these provisions are clear and unambiguous, Martindale insists sections 9.2(a) and 9.5 were not the only sections of the operating agreement concerning payment to an expelled member. He argues section 13.10 incorporates additional “rights and remedies,” which the chancery court erroneously failed to consider. Section 13.10 states, in pertinent part: “[R]ights and remedies [under this agreement] are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise.” Martin-dale suggests the chancellor “failed to give life and meaning to [his] express rights and remedies by ‘Law’ or ‘Otherwise.’ ” He argues Mississippi Code Annotated section 79-29-306(3)(a) (repealed 2010); two supreme court decisions, Williford, 55 So.3d 148, and Fought v. Morris, 543 So.2d 167 (Miss.1989); and the implied covenant of good faith and fair dealing provide him some sort of additional “right to fairness and equitable relief.” We agree that discretionary equitable relief is available under some circumstances, but not when the underlying contract is clear and unambiguous, and there is no breach or other similar issue with enforcement.

1. Section 79-29-306(3) (a)

¶ 14. Under section 79-29-306(3)(a), “A court of equity may enforce a limited liability company agreement by injunction or by such other relief that the court in its discretion determines to be fair and appropriate in the circumstances.” (Emphasis added). Martindale argues this statute granted the chancellor authority to look past the unambiguous LLC agreement to somehow craft him an additional and more favorable equitable remedy. But such an assertion ignores one of the basic principals of contract law — that when a “contract is unambiguous, the ‘parties are bound by the language of the instrument.’ ” Delta Pride Catfish, 697 So.2d at 404 (quoting Cherry, 501 So.2d at 419).

¶ 15. While section 79-29-306(3)(a) grants chancellors the discretion to fashion appropriate equitable relief, such as enforcement of an LLC agreement or money damages, we find there must be some sort of breach or other hindrance with the enforceability of an LLC agreement to trigger this equitable power. Otherwise, chancellors are not authorized to disregard the unambiguous terms of an LLC operating agreement that have been enforced to the letter by the remaining members.

2. Bluewater Logistics, LLC v. Williford

¶ 16. We disagree with Martindale’s assessment that the supreme court’s recent decision in Williford authorized the chancellor here to equitably determine the fair market value of his membership interest— rather than limit his review to the express provisions of the operating agreement’s percentage-based arrangement. In Willi-ford, the supreme court upheld a chancellor’s judgment awarding a wronged minority member of two LLCs the fair market value of his membership interests. Id. at 162-63 (¶¶ 63-68). The chancellor found the two LLCs committed a willful, grossly negligent breach of their LLC agreements by ousting Williford then attempting to rescind their initial offer to buy out his twenty-five percent interest in each LLC. Id. at 161 (¶ 55). The supreme court recognized the chancellor’s statutory authority under section T9 — 29—306(3) (a) to enforce LLC agreements by injunction or grant other discretionary relief the chancellor deems fair under the circumstances. Williford, 55 So.3d at 159-60 (¶ 45). But the court did not rewrite basic contract law in doing so. Id. at 162 (¶ 63). Rather, it enforced the terms of the LLCs’ operating agreements against the breaching members, and recognized the chancellor’s statutory authority to fashion appropriate relief. While the LLCs had a right to exclude Williford from the businesses, if they exercised this right, “they had a companion duty to tender payment to him.” Id. at 163 (¶ 67).

¶ 17. Unlike the minority member in Williford, Martindale has not shown the other members of Hortman Harlow breached the law firm’s operating agreement or failed to enforce it. The law firm enforced the contract as written, tendering Martindale payment as contemplated by the operating agreement he freely entered. And there is no suggestion that the firm members exceeded the bounds of the LLC agreement when voting unanimously to terminate him. Absent any breach, we find neither section 79-29-306(3)(a) nor Williford affords Martindale any additional relief.

3. Fought v. Morris

¶ 18. Martindale next suggests the chancellor “abused [his] discretion and applied an erroneous legal standard by failing to require [Hortman Harlow] to treat [Martindale] in an ‘intrinsically fair’ manner.” The doctrine of “intrinsic fairness,” was first recognized by the Mississippi Supreme Court in Fought, 543 So.2d at 171. In Fought, the court held that actions of a majority stockholder toward a minority shareholder in a closely held corporation must be “intrinsically fair” when that majority stockholder stands to benefit as controlling stockholder. Id. Although Fought dealt only with closely held corporations, “the rationale of Fought applies with equal force” to limited liability companies. Williford, 55 So.3d at 161 (¶ 51).

¶ 19. We agree the majority members owed Martindale a duty to act in an “intrinsically fair” manner, but find no indication they breached this duty in administering his proper payout under the contract. Martindale does not claim his termination was in bad faith, only that the remaining members violated their duty of intrinsic fairness to him in enforcing the operating agreement’s payout provision without considering the market value of his membership interest. The law firm expelled and paid Martindale in line with the clear terms of its operating agreement. “With limited exceptions, persons enjoy the freedom to contract. When they do, they are bound by the terms of their contracts.” Titan Indem. Co. v. Hood, 895 So.2d 138, 147 (¶ 41) (Miss.2004). While Martindale’s payout is meager in light of the large settlement after his expulsion, we find Martindale received what he initially bargained for under the firm’s operating agreement.

4. Implied Covenant of Good Faith and Fair Dealing

¶20. Martindale also argues Hortman Harlow’s failure to pay him the fair value of his interest breached the firm’s implied duty of good faith and fair dealing under the operating agreement. “All contracts contain an implied covenant of good faith and fair dealing in performance and enforcement.” Limbert v. Miss. Univ. for Women Alumnae Ass’n, 998 So.2d 993, 998 (¶ 11) (Miss.2008) (citing Morris v. Macione, 546 So.2d 969, 971 (Miss.1989)). Good faith means “the faithfulness of an agreed purpose between two parties, a purpose which is consistent with justified expectations of the other party.” Cenac v. Murry, 609 So.2d 1257, 1272 (Miss.1992). In contrast, bad faith requires “a showing of more than bad judgment or negligence; rather, ‘bad faith’ implies some conscious wrongdoing ‘because of dishonest purpose or moral obliquity.’ ” Univ. of S. Miss. v. Williams, 891 So.2d 160, 170-71 (¶ 24) (Miss.2004) (quoting Bailey v. Bailey, 724 So.2d 335, 338 (¶ 9) (Miss.1998)). However, a party does not breach the “implied covenant of good faith and fair dealing when the party ‘took only those actions which were duly authorized by the contract.’ ” Limbert, 998 So.2d at 999 (¶ 14) (quoting Gen. Motors Acceptance Corp. v. Baymon, 732 So.2d 262, 269 (¶ 29) (Miss.1999)).

¶ 21. A professional limited liability company must acquire the membership interests of disqualified members. Miss. Code Ann. § 79-29-911(1) (Supp.2011). “If a price for the membership interest is established in accordance with the certificate of formation or written operating agreement or by private agreement, that price controls.” Miss. Code Ann. § 79-29-911(2) (Supp.2011). In compliance with section 79-29-911, Hortman Harlow’s operating agreement specifically provided a formula to determine an expelled member’s interest. By opting against dissolution and instead tendering Martindale a check for $19,800, the law firm acted as authorized by its operating agreement. Because Hortman Harlow could not have acted in bad faith by exercising a contractual right, we find the firm did not breach its implied duty of good faith and fair dealing under the operating agreement. See Limbert, 998 So.2d at 999 (¶ 14). Thus, we find summary judgment was properly granted in Hortman Harlow’s favor.

II. Whether the chancery court erred in failing to make sufficient findings of fact.

¶ 22. Martindale next claims the chancellor abused his discretion by not making findings of fact on his counterclaims for declaratory judgment, judicial dissolution, and breach of good faith and fair dealing. We disagree.

¶ 23. Mississippi Rule of Civil Procedure 52(a) provides: “In all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered accordingly.” But a trial court need not make findings of fact on a motion for summary judgment, unless requested by a party under Rule 52(a). Harmon v. Regions Bank, 961 So.2d 693, 700 (¶ 24) (Miss.2007). “Even though evidence may be received by way of sworn affidavits, deposition testimony, and other such evidence, a Rule 56 summary judgment hearing is not an action ‘tried upon the facts without a jury’ so as to trigger Rule 52 applicability.” Id.

¶ 24. Martindale did not request additional findings of fact under Rule 52(a). And although the chancellor had no requirement to make factual findings, his findings of fact were more than adequate to dispose of Martindale’s counterclaims. We find this issue lacks merit.

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

BARNES, ROBERTS, CARLTON, RUSSELL AND FAIR, JJ, CONCUR. GRIFFIS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., AND ISHEE, J. IRVING, P.J., NOT PARTICIPATING.

GRIFFIS, P.J.,

dissenting:

¶ 26. The majority finds that the only reasonable interpretation of section 9.5 is that the parties intended for this section to provide a member’s exclusive right to compensation upon expulsion. I disagree and respectfully dissent.

¶ 27. In Dalton v. Cellular South, Inc., 20 So.3d 1227, 1232 (¶ 10) (Miss.2009), the supreme court held:

A contract is ambiguous if it contains conflicting clauses when the contract is read as a whole. This contract is capable of more than one reasonable interpretation as to when and how the contract can be terminated. This contract fails to provide clear direction as to which termination clause applies, without consideration of extrinsic evidence.

The court then determined that “[t]he contract at issue contains termination clauses that lack clarity and that are not harmonious.” Id. at 1233 (¶ 12). The court found “that the conflicts among the clauses create an ambiguity.” Id.

¶28. I agree that a reasonable interpretation of section 9.5 is that the payment of $19,800, the amount “calculated pursuant to Section 9.2(a),” may be interpreted to provide the expelled member’s exclusive right to compensation upon his expulsion. I dissent, however, because I find another reasonable interpretation. Therefore, I am of the opinion that this case should be reversed and remanded for the chancellor to consider the rules of contract interpretation.

¶ 29. The relevant sections of the agreement provide:

Article IX
TERMINATION OF MEMBER’S INTEREST
Section 9.1 Termination of Member’s Interest. A Member’s Membership Interest in the Company shall terminate upon any of the following occurrences:
(a) Withdrawal of a Member;
(b) Expulsion of a Member by a unanimous vote of the other Members;
(c) Loss of eligibility for membership under Article VIII;
(d) Transfers by operation of law under Article X;
(e) Retirement of a Member;
(f) Death of a Member;
(g) Permanent Disability as determined by a unanimous vote of the other Members under Section 9.4 of this Agreement.
Section 9.2 Payments to Terminated Members. Upon termination of a Member’s interest because of death or retirement, the Member shall be entitled to receive from the Company the amounts set forth below:
(a) The terminating Member shall receive an amount equal to One Thousand One Hundred and No/100 Dollars ($1,100.00) multiplied by each percentage point of Membership Interest owned by the terminating Member as set forth on Schedule “B” in lieu of his positive capital account balance;
(b) The terminating Member shall be paid the total amount of One Hundred Thousand Dollars $100,000, (which will include the amount paid for the points specified in item 9.2(a) above) in full payment of such Member’s Membership Interest in the Company....
Section 9.J/. Permanent Disability. After a period of six (6) months during which the Member is, because of sickness or injury, unable to perform his main duties for the Company, a Member shall be permanently disabled upon the unanimous vote of the other Members .... At the end of the six (6) month period, the disabled Member’s Membership Interest shall be terminated and such Member shall be entitled to receive the payments as provided under Section 9.2 of this Agreement.
Section 9.5 Option to Dissolve. Upon the termination of a Member’s Membership Interest under Section 9.1(b), (c), or (d) of this Agreement, the other Members may elect either (1) to pay an amount equal to the terminated Member[’]s points as calculated pursuant to Section 9.2(a) less any debt to Company; or (2) to dissolve the Company, in which case all Members (including the terminated Member) shall share in the liquidation proceeds, if any, according to Article XI of this Agreement.
Section 9.6 Payments upon Withdrawal. In the event a Member decides to withdraw (Section 9.1(a)) from the Company, the remaining Members shall acquire the withdrawing Member’s Membership Interest in the Company upon the payment of the sum due under Section 9.2(a) only, which payment may be either in cash or partly in cash and partly in assets at their current market value. The assets to be taken must be agreed to by the remaining Members. The payment shall be for the Member’s Membership Interest. Any debt of said Member to the Company shall be deducted and withheld from the final amount due.

¶ 30. We must interpret section 9.5. This section gives the remaining members a choice. They must choose to either pay Martindale $19,800 or dissolve and liquidate the company. If they chose to dissolve, then the company would be liquidated. All assets would be valued, sold and distributed to the members based on their percentage of ownership. Upon liquidation, Martindale, and each of the other members, would thereby receive full payment for their “Membership Interest.”

¶ 31. The members chose not to dissolve the company. Instead, they chose to pay Martindale $19,800. What was this payment for? Was it compensation for Martindale’s “Membership Interest?” Or, was it compensation for Martindale’s relinquishment of the right to seek dissolution? I do not know. The payment allowed the remaining members to continue practicing law under the Hortman Harlow name without interruption, and without Martin-dale.

¶ 32. The agreement specifically states that the company will pay $19,800 to a member who retires or dies as payment “in lieu of his positive capital account balance.” Section 9.2. More emphatically, the agreement states that the company will pay $19,800 to a member who voluntarily withdraws, and “[t]he payment shall be for the Member’s Membership Interest.” Section 9.6.

¶ 33. The language is slightly different for a member who becomes permanently disabled. For a disability, the operating agreement provides that “the disabled Member’s Membership Interest shall be terminated[,] and such Member shall be entitled to receive the payments as provided under section 9.2 of this Agreement.” Section 9.4. The disabled member would receive $100,000, under section 9.2(b) for his membership interest, and this amount would include $19,800, under section 9.2(a) for his positive capital account balance.

¶ 34. The language use in section 9.5 is different than the language used in sections 9.2, 9.4 or 9.6. The heading of section 9.5 is “Option to Dissolve.” The heading of section 9.2 is “Payments to Terminated Members,” section 9.4 is “Permanent Disability,” and section 9.6 is “Payments Upon Withdrawal.” If section 9.5 was intended to be the sole payment to an expelled member, I would expect the section to be titled “Payments upon Expulsion” or something similar. Instead, section 9.5 reads:

Section 9.5 Option to Dissolve. Upon the termination of a Member’s Membership Interest under Section 9.1(b) ... of this Agreement, the other Members may elect either (1) to pay an amount equal to the terminated Member[]s points as calculated pursuant to Section 9.2(a) less any debt to Company; or (2) to dissolve the Company, in which case all Members (including the terminated Member) shall share in the liquidation proceeds, if any, according to Article XI of this Agreement.

(Emphasis added).

¶ 35. Section 9.5 does not state that it is payment “in lieu of his positive capital account balance” or for his “Membership Interest.” Sections 9.2 and 9.6. The exclusion of such language indicates that section 9.5 could be reasonably interpreted as payment as consideration for the remaining member’s decision to not seek dissolution. The expelled member would retain the right to his capital account.

¶ 36. In footnote 3, the majority argues that “section 9.5 specifically incorporates section 9.2(a)’s method for calculating an expelled member’s payment. And section 9.2(a) expressly, and very clearly, provides that such payment is made ‘in lieu of a member’s positive capital account.’ ” This language proves an ambiguity in the agreement.

¶ 37. Section 9.4 specifically incorporates section 9.2, yet section 9.5 does not. Section 9.4 states that a “disabled Member’s Membership Interest shall be terminated and such Member shall be entitled to receive the payments as provided under Section 9.2 of this Agreement.” (Emphasis added). Thus, a terminated disabled Member is entitled to receive $19,800 (section 9.2(a)), for his positive capital account balance, and an additional amount up to a total payment of $100,000 (section 9.2(b)), for his membership interest. Section 9.4 says that a disabled Member’s interest is terminated, and he is to be paid “as provided under section 9.2” for “full payment of such Member’s Membership Interest in the Company.”

¶ 38. Section 9.5 uses completely different language. If section 9.5 said the expelled member was to be paid “as provided under section 9.2,” I would agree with the majority. It does not. Instead, section 9.5 says, “Option to Dissolve. Upon the termination of a Member’s Membership Interest under Section 9.1(b) ... the other Members may elect either (1) to pay an amount equal to the terminated Member's points as calculated pursuant to Section 9.2(a) less any debt to Company; or (2) to dissolve the Company....” Hence, the ambiguity and my dilemma. What is the payment as calculated pursuant to section 9.2(a)” for? I do not know. It could be interpreted as payment for his membership interest or it could be consideration to allow the remaining members to continue the company and not dissolve it.

¶ 39. The majority defines our difference of opinion in footnote 3. The majority adds language, not present in the agreement and not based on a reasonable inference, to reach its conclusion. I read only the words and language used by the parties in the agreement. I can only conclude that the agreement used different language for a reason. It is from the use of the language in section 9.4 (“as provided under Section 9.2”) as opposed to the language in section 9.5 (“as calculated pursuant to Section 9.2(a)”) that I find an ambiguity.

¶ 40. Under the agreement, each member’s ownership interest is only in his or her capital account. The company’s “property” is defined in section 1.9 as:

all those assets and liabilities of the Company as represented by the capital accounts of the partners (Members) as set forth in Schedule “A” attached hereto and made part hereof together with any and all other property, whether real or personal, interests, assets or rights owned or held by or on behalf of the Company at any time hereafter.

Schedule “A” defines “Capital Accounts” as:

The Capital Accounts of the Members are interests in all assets and liabilities of the Company as represented by the net capital accounts listed [the same to include, but is not limited to, all checking and savings accounts (including the firm’s Trust Account) all at AmSouth Bank, all accounts receivable, all work in progress (time and expenses) recorded in the accounting system, all furniture, equipment and other personal property reflected in the depreciation schedule and located in the office building at 414 West Oak Street, Laurel, Mississippi, all files (open and closed) wherever located, all accounts and notes payable, etc.]....

(Brackets in original).

¶ 41. I recognize that the standard of review is de novo. I have viewed the facts in the light most favorable to Martindale, the nonmovant. Although I agree that the majority’s interpretation is reasonable, I am of the opinion that there is more than one reasonable interpretation of section 9.5. I conclude that there is an ambiguity in the agreement. Thus, I am of the opinion that there is a genuine issue of a material fact in dispute, and Hortman Harlow is not entitled to a judgment as a matter of law. I would reverse the summary judgment and remand this case for further proceedings.

LEE, C.J., AND ISHEE, J., JOIN THIS OPINION.

      . Billy Jack McDaniel chose Hortman Harlow to handle his personal-injury case because his first cousin, Chris McDaniel, was a member of the law firm. Chris and another member of Hortman Harlow, Gene Harlow, were the lead attorneys in the McDaniel case.

      . Hortman Harlow did not move for summary judgment with respect to Martindale’s counterclaim for assault, battery, and intentional infliction of emotional distress, and it remains before the chancery court. After granting Hortman Harlow’s motion for partial summary judgment, the chancery court certified the judgment as final under Mississippi Rule of Civil Procedure 54(b).

      . We disagree with the dissent's proposed alternate interpretation of the operating agreement's exclusive remedies for expelled members. The dissent argues section 9.5 of the operating agreement could possibly be interpreted to provide compensation for “relinquishment of the right to seek dissolution.” This interpretation is unreasonable because it directly conflicts with the plain language of section 9.5, which upon expulsion of a member under section 9.1(b), unambiguously grants the "other Members” the option to dissolve the company — which they chose not to do here. Furthermore, section 9.5 specifically incorporates section 9.2(a)'s method for calculating an expelled member’s payment. And section 9.2(a) expressly, and very clearly, provides that such payment is made "in lieu

        of [a terminated member’s ] positive capital account balance." (Emphasis added). There is no ambiguity or inherent conflict merely because the LLC operating agreement expressly provides more favorable terms when a member becomes permanently disabled and unable to perform his duties, as contemplated by section 9.4, than it does in a circumstance such as this one, where he is expelled by the other members.

      . In 2010, the Mississippi Legislature revised the Mississippi Limited Liability Company Act. As part of the revisions, the Legislature repealed section 79-29-306, a statute Martin-dale cites frequently in his brief. However, the language of section 79-29-306(3)(a) is now located under Mississippi Code Annotated section 79-29-123(8)(a) (Supp.2011). Because we ultimately find Martindale’s reliance on section 79-29-306(3)(a) is misplaced, we need not address Hortman Harlow’s argument that repealed statutes are of no effect in pending cases.

      . I recognize that “Section 13.8, Headings " says "[t]he headings in this Agreement are for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any of its provisions.” As such, my opinion is not based on the heading that was used or not used.

      . Although not relevant to the outcome of this appeal, the agreement appears to have a contradiction in section 6.4 which provides that the company will use the cash method of accounting and the definition of "Capital Accounts” which requires the inclusion of amounts based on the accrual method of accounting. Based on capital account definition in Schedule "A,” Martindale’s capital account would not simply be based on actual profits and loss from prior years, which were based on the cash method of accounting, but would also include all "work in process (time and expenses) recorded in the accounting system,” i.e. the McDaniel contingency fee case.


author: GRIFFIS, P.J.,

text:
    Victor D. JONES a/k/a Victor Dewayne Jones, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01254-COA.
    Court of Appeals of Mississippi.
    Oct. 23, 2012.
    Rehearing Denied April 2, 2013.

      Victor D. Jones, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Victor D. Jones filed a motion for post-conviction relief (PCR), which was dismissed by the Pike County Circuit Court as time-barred and successive-writ barred. The court found also that it did not have jurisdiction to consider the claims.

¶ 2. On appeal, Jones argues the trial court erred in (1) dismissing the PCR motion when he alleged that his sentence was illegal; (2) dismissing the PCR motion because he failed to object during the plea hearing that he had not been properly examined by a psychiatrist as to his mental health, thereby denying him a fair plea hearing; (3) finding the PCR motion was successive and time-barred; and (4) finding it lacked jurisdiction. We find no error and affirm the judgment of the circuit court.

FACTS

¶ 3. Jones pled guilty on June 28 and 29, 2004, to two counts of sexual battery. He was sentenced to serve twenty years on each count. The court determined the sentences would be served consecutively, for a total sentence of forty years in the custody of the Mississippi Department of Corrections (MDOC). Jones filed a notice of appeal. The appeal was dismissed for failure to pay the costs of appeal, and the mandate was issued.

¶ 4. Jones filed a PCR motion on December 29, 2004. It was denied on January 20, 2005. This Court affirmed that judgment in Jones v. State, 962 So.2d 571, 574 (¶ 10) (Miss.Ct.App.2006).

¶ 5. On April 11, 2011, Jones filed the PCR motion that began this proceeding. On August 1, 2011, the Pike County Circuit Court dismissed Jones’s motion, finding: “[T]he motion is procedurally barred as a successive writ, and is time-barred.” The circuit court also found it did not have jurisdiction “without leave of the [Mississippi] Supreme Court.”

STANDARD OF REVIEW

¶ 6. In reviewing a trial court’s dismissal of a PCR motion, we will reverse only upon finding that the court’s decision was clearly erroneous. Sanders v. Miss. Dep’t of Corn., 912 So.2d 189, 190 (¶ 5) (Miss.Ct.App.2005). Questions of law are reviewed de novo. Id.

DISCUSSION

¶ 7. Mississippi Code Annotated section 99-39-5(2) (Supp.2011) requires that a PCR motion be filed within three years after the entry of a judgment of conviction. This statute also lists three exceptions to the time bar, none of which is applicable to this case. The Mississippi Supreme Court has also held that errors affecting fundamental constitutional rights may be excepted from the time-bar. See Ivy v. State, 731 So.2d 601, 603 (¶ 13) (Miss.1999) (citation omitted).

¶ 8. Jones argues that his motion should have survived the three-year time-bar because he is serving an illegal sentence. “The right to be free from an illegal sentence is a fundamental right.” Brown v. State, 923 So.2d 258, 259 (¶ 4) (Miss.Ct.App.2006) (quoting Alexander v. State, 879 So.2d 512, 514 (¶ 9) (Miss.Ct.App.2004)). A sentence is illegal if it exceeds the statutory maximum. Id. (citing House v. State, 754 So.2d 1147, 1150 (¶ 8) (Miss.1999)).

119. Jones does not state how his sentence was illegal. Mississippi Code Annotated section 97-3-101 (Rev.2006) provides that the penalty for sexual battery shall be “not more than thirty (30) years” and that the court shall have discretion to determine the sentence. Jones was not sentenced to the maximum sentence, and the sentence imposed was within the statutory guidelines.

¶ 10. Under Rule 9.06 of the Uniform Rules of Circuit and County Court, a trial court is required to conduct a mental examination of a defendant if there is a “reasonable ground to believe that the defendant is incompetent to stand trial.” The supreme court has held that “[t]he determination of what is ‘reasonable’ rests largely within the discretion of the trial judge because the judge sees the evidence firsthand and observes the demeanor and behavior of the defendant.” Cox v. State, 793 So.2d 591, 597 (¶ 23) (Miss.2001) (quoting Conner v. State, 632 So.2d 1239, 1248 (Miss.1993), overruled on other grounds by Weatherspoon v. State, 732 So.2d 158 (Miss.1999)). The issue of Jones’s mental health was not raised in his previous PCR motion. “There is no authority where alleged mental incompetence was held to have tolled the statute of limitations under the [Uniform Post-Conviction Collateral Relief] Act.” House, 754 So.2d at 1150 (¶ 9). In its previous opinion, this Court found that Jones’s guilty plea was voluntarily made. Jones, 962 So.2d at 573 (¶ 6).

¶ 11. Mississippi Code Annotated section 99-39-23(6) (Supp.2011) provides that a prior judgment is a “bar to a second or successive motion under this article.” The same exceptions as those to the time-bar also apply. None of the exceptions apply in this case. As previously noted, this Court affirmed the circuit court’s judgment in our decision on his previous PCR motion in Jones, 962 So.2d at 572 (¶ 1).

¶ 12. Where a criminal defendant’s appeal is dismissed on direct appeal, Mississippi Code Annotated section 99-39-7 (Supp.2011) requires that the appellant obtain permission from the Mississippi Supreme Court to seek post-conviction relief from the trial court. See Cortez v. State, 9 So.3d 445, 446 (¶ 6) (Miss.Ct.App.2009). “This procedure is not merely advisory, but jurisdictional.” Id. (quoting Doss v. State, 757 So.2d 1016, 1017 (¶ 6) (Miss.Ct.App.2000)). In this case, Jones failed to seek or obtain the required permission from the Mississippi Supreme Court to seek relief; therefore, the court correctly found that it lacked jurisdiction.

¶ 13. The circuit court’s judgment is affirmed.

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

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


author: LEE, C.J., RUSSELL, J.,

text:
    Martha CROW, Appellant, v. CROW’S SPORTS CENTER, INCORPORATED, Lynn Lambert and Rhonda Lambert, Appellees.
    No. 2011-CA-01233-COA.
    Court of Appeals of Mississippi.
    Nov. 13, 2012.
    Rehearing Denied April 30, 2013.
    Certiorari Denied Aug. 1, 2013.

      Ronald D. Michael, Seth Wesley Pounds, Booneville, attorneys for appellant.
    Greg E. Beard, attorney for appellees.
   LEE, C.J.,

for the Court:

¶ 1. Crow’s Sports Center Inc. (CSCI), Lynn Lambert, and Rhonda Lambert (collectively referred to as Appellees) filed suit against Martha Crow (Crow) seeking specific performance of an option-to-purchase agreement. The chancellor found that the option-to-purchase provision of the contract was enforceable and entered an order granting specific performance, as requested by the Appellees. Crow appeals, arguing the chancellor’s grant of specific performance was error because the option-to-purchase provision of the contract failed to include a purchase price. We find the contract is enforceable; however, we reverse and remand for the chancellor to obtain an independent appraisal and conduct a hearing to determine the property’s fair market value.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 31, 2005, Crow and her husband, Sylvester Crow, entered into a “Second Amended Lease Agreement” (agreement) with the Appellees. The agreement was drafted by Crow’s attorney, and Crow signed the agreement on June 6, 2005. The Appellees signed the agreement on June 2, 2005. The agreement included an option-to-purchase provision, which reads as follows:

15. OPTION TO PURCHASE: At the conclusion of the term hereof or upon the death of Sylvester Crow or Martha Crow, whichever shall occur first, the LESSEES shall have the option to purchase said property for a fair market value as determined by appraisal by a licensed real[-]estate appraiser or such other term as the parties may negotiate between themselves, which option shall be first evidenced by a written notice from LESSEES to the succeeding LESSORS with proof of the appraisal and evidence of the ability to exercise same or with such offer as the LESSEE may choose to make to LESSORS and if less than the appraised value to be then accepted in writing or rejected in writing by the LESSORS within in [sic] sixty (60) days, at which instance the Option shall be for the appraised value and if the LESSEES have not secured an appraisal then LESSOR may do so in substitute same by giving a copy of same to the LESSEES, who shall pay said amount as the sales price unless they reject same within ten (10) days of receipt thereof, at which time the Option to Purchase shall cease and it shall cease if it has not been exercised within the sixty (60) days of the first right of option at the conclusion of the Lease or the death of one of the LESSORS.

¶ 3. Sylvester passed away on April 5, 2010. By letter dated May 25, 2010, the Appellees informed Crow of their decision to exercise the option-to-purchase provision. The Appellees included in the correspondence an appraisal of the property conducted by Grace Long for $47,000, along with evidence of their ability to purchase the property.

¶ 4. On July 18, 2007, Crow had the property appraised for $110,000, and it was re-appraised on June 23, 2010, for $105,000. Because Crow refused to accept the Appellees’ offer to purchase, they filed suit against Crow seeking specific performance of the option-to-purchase agreement between the parties.

¶ 5. The parties stipulated that the issue was whether the option-to-purchase provision was ambiguous and subject to interpretation by the chancellor. On May 20, 2011, the chancellor entered a judgment finding that the option-to-purchase provision was enforceable.

¶ 6. A hearing on the matter was held on July 11, 2011. Crow’s attorney made a proffer, noting the property was appraised for $110,000 on July 18, 2007, and reappraised on June 23, 2010, for $105,000. The chancellor noted his earlier ruling regarding the enforceability of the option-to-purchase provision and stated the following:

The crux of the matter is [the option-to-purchase provision of the contract].... [T]he lessee[s] shall have the option to purchase said property for a fair market value as determined by appraisal by a licensed real[-]estate appraiser. According to even the proffer ..., that compliance has been made by the lessees. That language also contains the disjunctive word “or” such other terms the parties may negotiate between themselves. Even according to the proffer ..., that negotiation has been exhausted, rejected, and not pursued to be-concluded, or satisfied by the parties. Therefore, that disjunctive provision of the contract is out the window.... The court finds that the lessees have complied with this option to purchase under [paragraph] 15, in that they have provided an appraisal by a licensed real[-]estate appraiser for the amount as specified here of $47,000.... The court further finds that the option to purchase ... [was] exercised and properly complied with by the lessees[.] ... [T]he prior judgment of this court [found] that this contract [was] enforeeable[,] [thus] ... the specific performance sought by the lessees in this cause ... is hereby ordered.

¶ 7. The chancellor entered a judgment, which read, in relevant part, as follows:

... Ronald Michael proffered the following:
A letter dated May 25, 2010, to Martha Crow from [the Lessees] notifying of their intent to exercise [their] option to purchase^] an appraisal from Grace Long, a certified appraiser from Iuka, Mississippi!;] and a statement from an Edward Jones account[,] [showing] the [Lessees’] ability to pay the appraised amount.
An appraisal prepared by Hal Hughes, a certified appraiser[,] at the request of [Crow,] indicating a value of $105,000.00.
The Second Amended Lease Agreement dated May 31, 2005.
The [c]ourt does not accept these as evidence to be included into the record unless they were part of the previous proceedings before this [c]ourt that excepts [sic] them for the purpose of a proffer only.
The [c]ourt finds that it is bound by the language contained in the Second Amended Lease Agreement itself, specifically [paragraph] 15[,] which states that the [Lessees] were to tender [the] fair market value[,] as established by a certified appraiser and evidence of the ability to pay that amount. The [c]ourt finds that the [Lessees] have complied with the requirements of the Second Amended Lease Agreement entered into freely and voluntarily by the parties. Therefore, they are entitled to specific performance of the contract.

¶ 8. Crow now appeals the chancellor’s grant of specific performance in favor of the Appellees.

DISCUSSION

¶ 9. In the only issue on appeal, we must determine whether the chancellor erred in enforcing the option-to-purchase provision of the contract. Questions of contract construction are reviewed de novo. McMurphy v. Three Rivers Planning & Dev. Dist., Inc., 966 So.2d 192, 195 (¶ 12) (Miss.Ct.App.2007). “If a contract is determined to be ambiguous, it is reviewed on appeal under a substantial evidence/manifest error standard.” Belager- Price v. Lingle, 28 So.3d 706, 710 (¶ 7) (Miss.Ct.App.2010) (citing Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 752 (¶ 8) (Miss.2003)). “The existence of a contract is a question of fact that is to be determined by a jury, or a trial judge when a trial is conducted without a jury.” Hunt v. Coker, 741 So.2d 1011, 1014 (¶ 6) (Miss.Ct.App.1999).

¶ 10. The existence of a contract is undisputed. Crow argues that the option-to-purchase provision of the contract is unenforceable because it is not sufficiently definite on material terms. Specifically, she argues that the contract fails to state a specific purchase price, which she contends is required for the chancellor to grant specific performance.

¶ 11. A contract’s terms must be definite, and “[wjithout some written evidence of purchase price or a method of determining a purchase price,” the contract is a mere “memorandum of intent.” Duke v. Whatley, 580 So.2d 1267, 1273-74 (Miss.1991). In this case, the option-to-purchase provision states that the Appel-lees “have the option to purchase said property for a fair market value as determined by appraisal by a licensed real[-]estate appraiser....”

¶ 12. Here, there was no stated purchase price, but there was a clear method of determining one. The contract states that the option to purchase the property is for the fair market value. However, the chancellor did not follow the proper method of determining the purchase price. Instead, he arbitrarily found that the lowest appraised price of $47,000 submitted by the Appellees was the fair market value, even though two other appraisals found the property to be worth $110,000 in 2007 and $105,000 in 2010, both more than twice the appraisal submitted by the Appellees.

¶ 13. The chancellor failed to make any finding on the record regarding Hughes’s valuation of $105,000 in comparison to Long’s $47,000 valuation. Additionally, the record is silent as to the chancellor’s consideration of the differing contents of the appraisals. As an example, Long’s appraisal did not include the gas pumps, canopy, concrete pad, storage building, or central heat and air system; Hughes’s valuation did. Such disparity in the appraisals requires the chancellor to consider all relevant valuations of the property to determine the accurate fair market value.

¶ 14. When an appellate court reviews a contract, it “should seek the legal purpose and intent of the parties from an objective reading of the words employed in the contract.... ” Royer Homes of Miss., Inc., 857 So.2d at 752 (¶ 9). The intent of the parties is clear. They intended to sell and purchase the property for the fair market value as determined by a licensed real-estate appraiser. In this case, two appraisals are more than twice the amount of the third. One would think that qualified licensed professionals would not be so far apart on the valuation of property. Otherwise, the implication is that the appraisers have submitted appraisals that favor them respective clients, as opposed to a true fair market value.

¶ 15. Because of such disparities among the valuations, the chancellor should obtain an independent appraisal and conduct a hearing to determine the property’s fair market value, giving both parties an opportunity to submit testimony and evidence. We remand this issue for further proceedings consistent with this opinion.

¶ 16. THE JUDGMENT OF THE PRENTISS COUNTY CHANCERY COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

RUSSELL, J.,

concurring in part and dissenting in part:

¶ 17. I agree with the majority that the option-to-purchase provision of the contract is enforceable because there was a method for determining the purchase price. But I would simply affirm the chancery court’s order, instead of reversing and remanding for further consideration, because the four corners of the contract are clear and unambiguous.

¶ 18. “Questions concerning the construction of contracts are questions of law that are committed to the court rather than questions of fact committed to the fact-finder.” Belager-Price v. Lingle, 28 So.3d 706, 710 (¶ 7) (Miss.Ct.App.2010) (quoting Parkerson v. Smith, 817 So.2d 529, 532 (¶ 7) (Miss.2002)). For questions of law, the standard of review is de novo. Id. “If a contract is determined to be ambiguous, it is reviewed on appeal under a substantial evidence/manifest error standard.” Id. (citing Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 752 (¶ 8) (Miss.2003)). That is, “this Court will not hesitate to reverse a [chancellor’s decision] when his findings are manifestly wrong or when he has applied an erroneous legal standard.” Hunt v. Coker, 741 So.2d 1011, 1014 (¶ 6) (Miss.Ct.App.1999) (quoting Miss. Dep’t of Human Servs. v. Marquis, 630 So.2d 331, 334 (Miss.1993)). “The existence of a contract is a question of fact that is to be determined by a jury, or a trial judge when a trial is conducted without a jury.” Id.

¶ 19. The existence of a contract is undisputed. Crow argues that the option-to-purchase provision of the contract is unenforceable because it is not sufficiently definite on material terms. Specifically, she argues that the contract fails to state a specific purchase price, which she contends is required for the chancery court to grant specific performance.

¶ 20. Our supreme court “has held that before a court may order specific performance of a contract, the contract must be sufficiently definite on material terms.” Id. at (¶ 8) (citing Leach v. Tingle, 586 So.2d 799, 802 (Miss.1991)). “A contract is sufficiently definite ‘if it contains matter which will enable the court under proper rules of construction to ascertain its terms.’ ” Id. (quoting Leach, 586 So.2d at 802). “If any essential terms are left unresolved, then no contract exists.” Id. “The purchase price is an essential term that must be stated with specificity or the contract fails.” Id. Further, “an option contract which does not set forth a price is unenforceable.” Estate of Smith v. Samuels, 822 So.2d 366, 369 (¶ 7) (Miss.Ct.App.2002). “Purchase price is an absolute requisite for the remedy of specific performance,” and “the absence of a purchase price is fatal.” Duke v. Whatley, 580 So.2d 1267, 1275 (Miss.1991). “Without some written evidence of purchase price or a method of determining a purchase price, then the agreement would have to be regarded as merely a memorandum of intent.” Id. at 1273 (emphasis added). “This does not mean that the price must be set out simply.” Leach, 586 So.2d at 803. “Where, from the terms of the contract, one familiar with elementary principles of mathematical reasoning may deduce with certainty the sales price, the contract will not fail.” Id.

¶21. In the this case, the option-to-purchase provision reads as follows:

OPTION TO PURCHASE: At the conclusion of the term hereof or upon the death of Sylvester Crow or Martha Crow, whichever shall occur first, the LESSEES shall have the option to purchase said property for a fair market value as determined by appraisal by a licensed real estate appraiser or such other term as the parties may negotiate between themselves, which option shall be first evidenced by a written notice from LESSEES to the succeeding LESSORS with proof of the appraisal and evidence of the ability to exercise same or with such offer as the LESSEE may choose to make to LESSORS and if less than the appraised value to be then accepted in writing or rejected in writing by the LESSORS within sixty (60) days, at which instance the Option shall be for the appraised value and if the LESSEES have not secured an appraisal then LESSOR may do so in substitute same by giving a copy of same to the LESSEES, who shall pay said amount as the sales price unless they reject same within ten (10) days of receipt thereof, at which time the Option to Purchase shall cease and it shall cease if it has not been exercised within the sixty (60) days of the first right of option at the conclusion of the Lease or the death of one of the LESSORS.

¶ 22. Here, the agreement specifies that the purchase price is the “fair market value as determined by appraisal by a licensed real estate appraiser.” Thus, the agreement specifies a method for determining a purchase price, and the agreement is enforceable. See 77 Am.Jur.2d Vendor and Purchaser § 38 (2012) (noting that “[a]n option to purchase at a price to be fixed by third persons acting as appraisers or arbitrators is valid.”); 49 Am. Jur. Landlord and Tenant § 301 (2012) (noting that “[a] provision for the price of property to be fixed by arbitrators is enforceable[,] and a provision making the price of land under an option ‘based’ on a specified appraisal is also enforceable.”). Because there is a method for determining the purchase price, and because the four corners of the contract are clear and unambiguous, I would affirm the chancery court’s order granting specific performance and enforce the contract as the chancery court determined.

IRVING, P.J., ROBERTS AND FAIR, JJ., JOIN THIS OPINION.


text:
    TOFINO HOLDINGS, LLC, A Mississippi Limited Liability Corporation, Appellant v. DONNELL AND SONS, LLC, A Mississippi Limited Liability Corporation, Appellee.
    No. 2011-CA-01408-COA.
    Court of Appeals of Mississippi.
    Nov. 27, 2012.
    Rehearing Denied April 30, 2013.
    Certiorari Denied Aug. 1, 2013.

      David Ringer, attorney for appellant.
    James C. Rhoden, Columbia, attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On April 28, 2009, Donnell and Sons LLC (Donnell) filed a complaint to set aside a conveyance of real property to Tofino Holdings LLC (Tofino). Tofino had acquired the property in a tax sale. Following a hearing on the matter, the Marion County Chancery Court found that the attempt of Donnell’s predecessor in title— The First, a National Banking Association (the Bank) — to redeem the property, along with the chancery court clerk’s failure to comply with the notice requirements of Mississippi Code Annotated section 27-43-3 (Rev.2010), warranted setting aside the tax deed to Tofino.

¶2. Feeling aggrieved, Tofino appeals and argues that the chancery court erred in its interpretation and application of the statutory notice requirements. We find that the chancery clerk did not follow the statutory notice requirements. We also find that the Bank’s payment of the amount that the tax collector advised would be needed to redeem the property from all prior tax sales and past-due taxes constituted a timely and legal redemption of the property from sale for past-taxes, although there was an error in the amount tendered through no fault of the Bank. Therefore, we affirm the chancery court’s judgment and remand the case to the chancery court for further proceedings consistent with this opinion.

FACTS

¶ 3. Todd Phillips Investments Inc. (Phillips) owned three parcels of land in Marion County, Mississippi: a metes-and-bounds parcel and Lots C8 and C9 of the Bellewood Park Subdivision. Because all three parcels had the same owner, the Marion County Tax Assessor combined the three parcels into one.

¶ 4. Lot C9, along with the other two parcels, had been conveyed to Phillips via warranty deed from Brett Jones on May 26, 2004. The deed stated that the 2004 ad valorem taxes were to be prorated between Phillips and Jones. However, the 2004 ad valorem taxes on lot C9 were not paid. Accordingly, the tax assessor scheduled a tax sale of the property for August 29, 2005. The sale was postponed as a result of Hurricane Katrina and later held on September 26, 2005. Tofino purchased the property at the tax sale for $174.42.

¶ 5. Phillips declared bankruptcy on September 8, 2006. On May 10, 2007, the Bank, which held a secured interest in the metes-and-bounds parcel, Lot C8, and Lot C9 in the form of a deed of trust, purchased the properties at a credit bid held by the bankruptcy trustee. On May 23, 2007, the trustee conveyed all three properties to the Bank via a trustee’s deed. The deed was recorded on May 25, 2007, and purported to convey the properties free of any liens, interests, encumbrances, or claims. However, the deed also expressly stated that it was prepared “without the benefit of a title examination.”

¶ 6. Following its acquisition, the Bank attempted to pay the outstanding taxes on the properties. The Bank contacted the tax collector’s office and obtained the amount of taxes due for 2004, 2005, and 2006. However, the tax collector’s office neglected to inform the Bank of the outstanding taxes for 2004 due on Lot C9.

¶ 7. On April 23, 2008, the Bank conveyed the property via special warranty deed to Donnell. The deed was recorded on the same day. This deed was also prepared without a title examination. At some point following the sale, Donnell discovered that Lot C9 had been previously sold in a tax sale to Tofino, which prompted him to file the instant action.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 9. An appellate court will not disturb the chancery court’s factual findings unless such findings are manifestly wrong, clearly erroneous, or the chancery court applied an erroneous legal standard. Reed v. Florimonte, 987 So.2d 967, 971 (¶ 11) (Miss.2008).

¶ 10. Tofino argues that the chancery court erred in its interpretation and application of the notice requirements of Mississippi Code Annotated section 27-43-1 (Rev.2010). Section 27-43-1 provides, in pertinent part:

The clerk of the chancery court shall, within one hundred eighty (180) days and not less than sixty (60) days prior to the expiration of the time of redemption with respect to land sold, either to individuals or to the state, be required to issue notice to the record owner of the land sold as of 180 days prior to the expiration of the time of redemption [.]

(Emphasis added). Redemption notice must be given in accordance with the procedures set forth in section 27-43-3. Section 27-43-3 requires that the redemption notice be given to the reputed owner in three ways: (1) personal service delivered by the sheriff, (2) registered or certified mail, and (3) publication in the appropriate newspaper.

¶ 11. In this case, the redemption period expired on September 26, 2007. Under section 27-43-1, the record owner was entitled to notice no sooner than 180 days prior to the expiration of the redemption period and no later than 60 days before that date. Arguably, Phillips may not have been the record owner of the property 180 days before the expiration of the redemption period. Nevertheless, the chancery clerk sent Phillips a notice of forfeiture on April 2, 2007, via certified mail and received a return receipt. On May 10, 2007, the Bank purchased the property at a credit bid held by the bankruptcy trustee. The trustee’s deed was recorded on May 25, 2007. On August 1, 2007, the chancery clerk mailed a second notice of forfeiture to Phillips. Additionally, the sheriff personally served the notice on Phillips on August 16, 2007.

¶ 12. Tofino argues that under the plain language of section 27-43-1, only the owner of record title as of 180 days prior to the expiration of the redemption period is entitled to notice. We need not decide this question for two reasons. First, there is no record of Phillips being personally served by the Sheriff of Marion County between March 25, 2007, and July 25, 2007, as required by sections 27-43-1 and 27-43-3. The personal service by the sheriff on August 16, 2007, was within sixty days of the expiration of the period of redemption. Therefore, even if Phillips were the record owner on the 180th day (March 25, 2007) prior to the expiration of the period of redemption, service on Phillips did not comport with the requirements of sections 27-43-1 and 27-43-3. Second, we find that the Bank was the record owner of the property for four months prior to the expiration of the period of redemption and that prior to the expiration of the period of redemption it paid $21,197.58 to redeem the property from all prior tax sales and delinquent taxes. This was the exact amount that the tax collector advised was due. The evidence adduced before the chancery court establishes that had the Bank been advised of a different amount, it was ready, willing, and able to pay it and would have tendered that amount. Specifically, the Bank stated that had it been told that taxes owed on the property for 2004 had not been paid, it would have tendered that amount also.

¶ 13. Because the chancery clerk failed to fully comply with the redemption notice requirements of sections 27-43-1 and 27-43-3, the chancery court did not err in setting aside the tax sale as void. Therefore, we affirm the chancery court’s judgment. However, because of an error or oversight on the part of the tax collector in computing the taxes owed, we remand this case to the chancery court for a proper computation of the taxes owed for 2004. Donnell shall be required to pay that amount.

¶ 14. THE JUDGMENT OF THE CHANCERY COURT OF MARION COUNTY IS AFFIRMED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . As stated the tax assessor combined the parcels into one parcel due to common ownership. However, this combination did not occur until 2005. In 2004, the parcels were taxed separately.

      . The tax sale took place on September 26, 2005. In Mississippi, the owner of property sold in a tax sale may redeem the property “at any time within two (2) years after the day of [the] sale.” Miss.Code. Ann. § 27-45-3 (Rev.2010). Therefore, Phillips’s right to redeem Lot C9 expired on September 26, 2007 — two years after the tax sale.

      . March 30, 2007, was 180 days prior to September 26, 2007. At this time, title to the subject property was vested in the Chapter 11 Bankruptcy Trustee, because, as noted, Phillips was in bankruptcy.

      . No notice was sent to the Chapter 11 Bankruptcy Trustee.