author: DICKINSON, Presiding Justice,

text:
    Ken E. CLEVELAND, George T. Smith-Vaniz, M.D., and Jackson HMA, Inc., d/b/a Central Mississippi Medical Center v. Lanell HAMIL, Individually and on behalf of the Wrongful Death Beneficiaries of Emmett O. Hamil, Deceased, Who are Entitled to Recover Under the Wrongful Death and Survival Statute.
    No. 2010-CT-01527-SCT.
    Supreme Court of Mississippi.
    Aug. 8, 2013.

      Whitman B. Johnson, III, Michael F. Myers, Lorraine Walters Boykin, Stephen P. Kruger, Jan F. Gadow, Kristopher Alan Graham, Mark P. Caraway, Cory Louis Radicioni, Jackson, attorneys for appellant.
    Alton Earl Peterson, Larry Stamps, Jackson, Anita M. Stamps, attorneys for appellee.
   ON WRIT OF CERTIORARI

DICKINSON, Presiding Justice,

for the Court:

¶ 1. At trial in this medical-negligence case, the plaintiffs only expert abandoned his pretrial opinion and — over the objection of the defendant — testified to a new opinion that was never disclosed in discovery. The Court of Appeals reversed and remanded for a new trial. But because the trial court should have granted a judgment notwithstanding the verdict, we reverse in part and render judgment in favor of the defendant.

FACTS AND PROCEDURAL HISTORY

¶ 2. Emmett Hamil was admitted to Central Mississippi Medical Center, complaining of severe abdominal pain. Dr. George T. Smith-Vaniz, a gastroenterologist, treated Hamil for gastrointestinal bleeding, and Dr. Ken E. Cleveland, a cardiovascular surgeon, surgically repaired his ulcer. After approximately one week, Hamil was discharged. The next morning, Hamil returned to the hospital complaining of further stomach pain and bleeding. Surgery revealed a second ulcer, which had eroded a large blood vessel and precipitated Hamil’s death.

¶ 3. Lanell Hamil filed suit, alleging that the medical malpractice of Dr. Smith-Van-iz, Dr. Cleveland, and Jackson HMA caused the wrongful death of her husband. During discovery, Lanell Hamil’s expert, Dr. Louis Silverman, opined that Hamil’s doctors deviated from the standard of care by failing to prescribe anti-ulcer medication at Hamil’s discharge and allowing the second ulcer to develop post-discharge.

¶ 4. At trial, Dr. Silverman admitted he later became aware that the doctors had prescribed such medication. But he had developed a new theory of the doctors’ malpractice, opining over objection that, because the second ulcer was developing while Hamil was in the hospital, the doctors should have discovered it prior to Hamil’s discharge. The plaintiff presented no additional expert testimony.

¶ 5. At the close of the plaintiffs case-in-chief, the circuit court denied a motion for a directed verdict by Dr. Smith-Vaniz, but granted a directed verdict in favor of Jackson HMA except for any vicarious liability it had through Dr. Smith-Vaniz. The jury returned a verdict in favor of the plaintiff against all three defendants, and the circuit court denied their motions for judgment notwithstanding the verdict (JNOVj.

¶ 6. The Court of Appeals reversed the judgment against all three defendants. The court rendered judgment for Dr. Smith-Vaniz because it found Dr. Silver-man — a thoracic and cardiovascular surgeon — unqualified to render an opinion as to the standard of care for a gastroenterol-ogist. Because Dr. Silverman was the plaintiffs sole expert and he was unqualified to testify against Dr. Smith-Vaniz, the court found that the plaintiff could not establish a prima facie case of medical malpractice and rendered judgment in favor of Dr. Smith-Vaniz. Further, because Jackson HMA was only vicariously liable for any negligence of Dr. Smith-Vaniz, the court rendered judgment in its favor.

¶ 7. The Court of Appeals found that Dr. Silverman was qualified as an expert to testify to the standard of care for Dr. Cleveland, but the court found that the circuit court had abused its discretion by overruling the objection to Dr. Silverman’s previously undisclosed testimony. The court held that Dr. Silverman’s new theory of Dr. Cleveland’s malpractice constituted trial by ambush and remanded the case for a new trial against Dr. Cleveland.

¶ 8. Following Dr. Cleveland’s motion for rehearing, the Court of Appeals modified its original opinion to explain why it had remanded the case for a new trial against Dr. Cleveland, stating that “where a plaintiff fails to offer qualified expert testimony — and, thus, fails to present a prima facie case — the supreme court and this court have held that the defendant is entitled to judgment in his favor.” But the court stated that “where the prevailing party blindsides the other party with surprise expert testimony, the supreme court has consistently remedied the unfairness by remanding for a new trial.” Therefore, the court found it proper to render judgment for Dr. Smith-Vaniz and Jackson HMA, while remanding for a new trial against Dr. Cleveland.

¶ 9. Dr. Cleveland petitioned this Court for a writ of certiorari, and we granted certiorari.

ANALYSIS

¶ 10. The single issue before us is whether the Court of Appeals erred by remanding for a new trial against Dr. Cleveland, rather than rendering a judgment in his favor. We hold that the Court of Appeals erred by remanding for a new trial.

In order to establish a prima facie case of medical malpractice, a plaintiff must prove “(1) the existence of a duty by the defendant to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) a failure to conform to the required standard; and (3) an injury to the plaintiff proximately caused by the breach of such duty by the defendant.”

¶ 11. And to establish the second and third prongs — that the defendant breached the applicable standard of care, and that the breach proximately caused plaintiffs injuries — the plaintiff must provide expert testimony.

¶ 12. We have affirmed grants of summary judgment and directed verdicts in favor of defendants in medical-malpractice actions where the plaintiffs failed to produce a qualified expert. Likewise, we have reversed a trial court’s denial of a defendant’s motion for directed verdict and rendered judgment in favor of the defén-dant where the plaintiffs qualified expert failed to testify to a reasonable degree of medical certainty. Relying on this authority, the Court of Appeals properly rendered judgment in favor of Dr. Smith-Vaniz and Jackson HMA.

¶ 13. We find, however, that the Court of Appeals also erred by not rendering judgment in favor of Dr. Cleveland. While Dr. Silverman was qualified as an expert in cardiovascular surgery, his testimony concerning Dr. Cleveland’s breach of the standard of care consisted entirely of a new theory that the plaintiff did not disclose. Had the trial judge excluded this testimony — as he should have — the plaintiff would have been without any expert testimony to establish that Dr. Cleveland breached the standard of care.

¶ 14. Medical negligence cases are different from cases that do not call into question the standard of care of a medical provider. While expert testimony may be helpful in non-medical negligence cases, it is not required. But the failure to produce a competent medical expert prohibits the plaintiff from bringing the case to trial. Indeed, in every kind of case, a judgment not withstanding the verdict is generally appropriate where the plaintiff has failed to produce sufficient admissible evidence to establish a prim a facie case, and the fact that a trial judge erroneously allows inadmissible evidence into the record — whether expert testimony or otherwise — does not abrogate that rule.

¶ 15. In explaining why it remanded for a new trial against Dr. Cleveland, the Court of Appeals cited several eases, none of which related to medical negligence. To be clear, a plaintiff may not use inadmissible evidence to establish the standard of care, or that a medical provider failed to comply with that standard of care. Here, the plaintiffs only evidence of Dr. Cleveland’s standard of care or breach thereof was inadmissible. Accordingly, it is clear that Dr. Cleveland was entitled to judgment notwithstanding the verdict.

CONCLUSION

¶ 16. The trial judge erred in allowing Dr. Silverman to testify to undisclosed opinions. And because the plaintiff failed to establish a prima facie case with admissible evidence, the trial judge erred in failing to grant Dr. Cleveland judgment notwithstanding the verdict. Accordingly, we reverse the judgment of the Court of Appeals in part and reverse the judgment of the Hinds County Circuit Court, rendering judgment for all defendants.

¶ 17. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED AND RENDERED.

WALLER, C.J., RANDOLPH, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . Cleveland v. Hamil, - So.3d -, — (Miss.Ct.App.2013).

      . Id.

      . Id.

      . Id.

      . Id.

        . Id.

      . Id. at - (citing Univ. of Miss. Med. Ctr. v. Lanier, 97 So.3d 1197, 1203 (Miss.2012)).

      . Id. (citing Bailey Lumber & Supply Co. v. Robinson, 98 So.3d 986, 998 (Miss.2012); Hyundai Motor Am. v. Applewhite, 53 So.3d 749, 759 (Miss.2011); T.K. Stanley, Inc. v. Cason, 614 So.2d 942, 950-51 (Miss.1992); Jones v. Hatchett, 504 So.2d 198, 202 (Miss.1987); Square D Co. v. Edwards, 419 So.2d 1327, 1329 (Miss.1982)).

      . Hubbard v. Wansley, 954 So.2d 951, 956-57 (Miss.2007) (citing Drummond v. Buckley, 627 So.2d 264, 268 (Miss.1993) (citing Burnham v. Tabb, 508 So.2d 1072, 1074 (Miss.1987))).

      . Id. at 957 (quoting Barner v. Gorman, 605 So.2d 805, 809 (Miss.1992) (citing Latham v. Hayes, 495 So.2d 453 (Miss.1986))).

      . See, e.g. McDonald v. Mem'l Hosp. at Gulfport, 8 So.3d 175, 182 (Miss.2009); Hubbard, 954 So.2d at 966 (Miss.2007); Troupe v. McAuley, 955 So.2d 848, 858 (Miss.2007).

      . Lanier, 97 So.3d at 1203.

      . During discovery, Dr. Silverman opined that the second ulcer developed after Emmitt Hamil left the hospital because his doctors did not prescribe anti-ulcer medication. At trial, he testified that the doctors did prescribe anti-ulcer medication, but that the second ulcer was developing and should have been detected while Hamil was still in the hospital.

      . Hubbard, 954 So.2d at 957.

      . 3M Co. v. Johnson, 895 So.2d 151, 167 (Miss.2005); Wilson v. General Motors Acceptance Corp., 883 So.2d 56, 63 (Miss.2004); Harrison v. McMillan, 828 So.2d 756, 763 (Miss.2002).

        . Hyundai Motor Am., 53 So.3d at 749 (products liability); Bailey Lumber & Supply Co., 98 So.3d at 986 (premises liability); T.K. Stanley, Inc., 614 So.2d at 942 (environmental pollution); Jones, 504 So.2d at 198 (negligent operation of a motor vehicle); Square D Co., 419 So.2d at 1327 (products liability).


source: Caselaw Access Project

author: PIERCE, Justice, DICKINSON, Presiding Justice,

license: Public Domain

text:
    David WAITS v. STATE of Mississippi.
    No. 2012-KA-00789-SCT.
    Supreme Court of Mississippi.
    Aug. 15, 2013.

      Office of State Public Defender by Justin Taylor Cook, George T. Holmes, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, John R. Henry, Jr., attorneys for appellee.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. David Waits was indicted by a grand jury in Hinds County, Mississippi, on one count of deliberate-design murder of Wavious McGee. The indictment also charged Waits with a sentence enhancement for using a firearm during the commission of a felony, pursuant to Mississippi Code Section 97-37-37 (Supp.2012). A Hinds County jury found Waits guilty of manslaughter.

¶ 2. According to the sentencing order, the trial judge sentenced Waits to twenty years imprisonment for the manslaughter conviction. Included within the sentencing order is the notation: “ENH (GUN) 97-37-37.”

¶ 3. We affirm Waits’s manslaughter conviction and his twenty-year sentence for that conviction. But, because the jury did not specifically find Waits guilty of using a firearm in the commission of the crime of manslaughter, we reverse the trial court’s sentence enhancement and remand this case to the trial court, with the instruction that the gun-enhancement notation be struck from the sentencing order.

STATEMENT OF THE FACTS

¶4. Late in the evening, on April 8, 2010, Latasha Beasley, her fiancé, Wavious McGee, Jennifer Graves, and Piere Lacy drove to a gas-station convenience store located on the corner of Bailey Avenue and Woodrow Wilson, in Jackson, Mississippi. According to the State’s evidence, Lacy exited the vehicle and began walking toward the store. Lacy passed by Waits, who, according to Lacy, said “he had some good weed to sell.” Lacy replied, “No, I don’t smoke.” McGee then exited the vehicle and went inside the store with Lacy. McGee handed Lacy some money for cigarettes and left the store.

¶ 5. According to Beasley, after McGee exited the store, she saw McGee speak to Waits and shake Waits’s hand. Beasley testified that she knew Waits because her mother had helped raise Waits’s sister, Carlena Waits. Beasley said she did not know whether Waits and McGee knew each other. When McGee got back in the car, Beasley asked McGee, “what was he talking to David about.” McGee said Waits had asked him if he wanted to buy some truck rims. Beasley told McGee to call Waits over to the car. McGee was sitting in the front passenger seat, and Beasley was sitting in the driver’s seat. Waits approached Beasley on the driver’s side and they talked. McGee moved Lacy’s gun, which was sitting out, under the seat. Waits asked if McGee was pulling a gun on him. McGee did not respond, but Beasley told Waits, “No, David, he’s not pulling a gun on you.” Speaking to the “guys” Waits was with, Waits said, “Bro, this man just pulled a gun on me.” The guys asked Waits who he was talking about. Beasley told Waits again that McGee had not pulled a gun on him. Waits walked away and then returned to McGee’s side of the car. According to both Beasley and Graves, McGee got out of the car and put his hands up in the air. McGee told Waits that he (McGee) had no reason to pull a gun on him (Waits).

¶ 6. At that point, Lacy exited the store. Lacy recalled hearing “a lot of loud talking.” Lacy saw McGee standing by the car with his hands up and Waits standing nearby holding a gun. Lacy testified that Waits pulled the gun’s trigger, and the gun “clicked.” Lacy then ran towards Waits and tried to grab the gun. Waits shoved Lacy away and began shooting at McGee. Lacy said Waits shot McGee “[o]ver fifteen” times. Waits then left the scene.

¶ 7. The Jackson Police Department and paramedics were called, and McGee was pronounced dead at the scene. The police recovered sixteen spent shell casings at the scene, and investigators recovered a firearm located between the passenger seat and the middle console of McGee’s vehicle. None of the shell casings found at the scene matched McGee’s gun.

¶ 8. Dr. Feng Li, a forensic pathologist, performed an autopsy on McGee. Dr. Li testified that McGee died of multiple gunshot wounds. His injuries included injury to the heart, both lungs, liver, stomach, pancreas and thoracic aorta. Dr. Li testified that he recovered only three bullets from McGee’s body, but there were twenty-five individual gunshot wounds, and it was possible that all wounds came from sixteen or seventeen shots fired. Dr. Li also said that McGee had a blood alcohol level of 0.31.

¶9. Waits provided a statement to authorities shortly after he was arrested, in which he said that McGee had pulled a gun on him. At trial, Waits claimed that he shot McGee in self-defense after McGee pointed a gun at him. Waits testified that he did not know Beasley and had never seen her before that evening. Waits stated also that he thought, but was not sure, that he knew McGee as someone who hung around a person known by the name as Chill Will. According to Waits, Will had shot him (Waits) in 2004. Waits further stated that he (Waits) and McGee had never had any previous conflicts.

¶ 10. The jury found Waits guilty of manslaughter. The trial court sentenced Waits to twenty years’ imprisonment for the manslaughter conviction, which is the maximum sentence allowed under Mississippi Code Section 97-3-25. The sentencing order also contains a sentence-enhancement notation, indicating that Waits was convicted under Section 97-37-37.

¶ 11. This appeal followed, raising the following two issues: (1) whether the trial court erred by overruling Waits’s motion for a new trial, because the overwhelming weight of the evidence pointed towards excusable homicide in self-defense, and (2) whether Waits’s sentence violates the United States Constitution. Additional facts, as necessary, will be related in our discussion of issues.

DISCUSSION

I. The trial court erred when it overruled Waits’s motion for a new trial, because the overwhelming weight of the evidence pointed toward excusable homicide in self-defense.

¶ 12. Waits argues that the trial court erred when it overruled Waits’s motion for a new trial, because the overwhelming weight of the evidence supported excusable homicide based on self-defense. Specifically, Waits claims on appeal that he was acting in necessary self-defense when he shot McGee because McGee was a “severely intoxicated felon” in possession of a gun; and he (Waits) felt threatened by McGee’s brandishing a weapon.

¶ 13. A motion for a new trial challenges the weight of the evidence, and reversal is warranted only if the trial court abused its discretion in denying a motion for a new trial. Sheffield v. State, 749 So.2d 123, 127 (Miss.1999). “When review ing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (Miss.2005). A motion for a new tidal should be granted only in “exceptional cases in which the evidence preponderates heavily against the verdict.” Weatherspoon v. State, 56 So.3d 559, 564 (Miss.2011). We review the evidence in a light most favorable to the jury’s verdict. Bush, 895 So.2d at 844.

¶ 14. Here, the jury was instructed on the offense of manslaughter via jury instruction S-7, as follows:

[I]f you find from the evidence in this case beyond a reasonable doubt that:
1. The Defendant David Waits;
2. On or about April 9, 2010;
3. In the First Judicial District of Hinds County, Mississippi;
4. Did shoot and take the life of Wavious McGee, acting on his actual and bona fide belief that such was necessary to protect himself from great bodily harm or death at the hands of [Wavious] McGee, but that such belief by the Defendant was not a reasonable belief under the circumstance;
then you may find the Defendant guilty of the lesser-included offense of manslaughter.

¶ 15. After viewing all the evidence in a light most favorable to the jury’s verdict, we can conclude only that the jury ultimately made a determination from the evidence, and that, even if Waits truly believed shooting McGee was necessary to protect himself from great bodily harm or death at the hands of McGee, such a belief was unreasonable under the circumstances. Three witnesses testified for the State that, even though a handgun was located inside the vehicle in which McGee was riding, McGee was standing outside the vehicle, unarmed, with his hands in the air, at the time Waits shot and killed him. The only evidence presented to the contrary was Waits’s testimony that McGee was armed and pointing a gun at him when Waits shot McGee. This raised a factual dispute between the State’s evidence and Waits’s version of events, and it was for Waits’s jury to resolve. See Moore v. State, 859 So.2d 379, 385 (Miss.2003) (“Any factual disputes are properly resolved by the jury and do not mandate a new trial.”).

¶ 16. The jury obviously rejected Waits’s testimony and accepted the State’s evidence. And Waits fails to demonstrate on appeal how that evidence preponderates against the jury’s verdict in this case. Accordingly, we find that this issue is without merit.

II. Whether Waits’s sentence violates the United States Constitution.

¶ 17. Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Waits argues that the firearm sentence enhancement violates his Sixth Amendment right to a trial by jury, because the jury did not specifically find the firearm enhancement separate and apart from finding him guilty of manslaughter. The State, relying on Johnson v. State, 44 So.3d 365 (Miss.2010), argues that, because the jury was informed through jury instruction S-7, that Waits shot and killed McGee, the State complied with Apprendi We agree with Waits.

¶ 18. The rule of Apprendi is that, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.

¶ 19. Waits was indicted for violation of Section 97-37-37(1), which states:

Except to the extent that a greater minimum sentence is otherwise provided by any other provision of law, any person who uses or displays a firearm during the commission of any felony shall, in addition to the punishment provided for such felony, be sentenced to an additional term of imprisonment in the custody of the Department of Corrections of five (5) years, which sentence shall not be reduced or suspended.

Miss.Code Ann. § 97-37-37(1) (Supp.2012). At trial, more than sufficient evidence was presented to the jury by both the State and Waits that Waits had shot McGee with the use of a firearm. But the ultimate question of whether Waits had -violated Section 97-37-37, as set forth in the indictment, was not decided by the jury beyond a reasonable doubt. None of the jury instructions submitted specifically mentioned the term firearm (or the like), a critical element of Section 97-37-37. Contrary to the State’s position, the language contained in jury instruction S-7 did not suffice.

¶ 20. The instant case is distinguishable from Johnson v. State, 44 So.3d 365 (Miss.2010). There, Laharrison Johnson was indicted and convicted of armed robbery. Johnson also was charged in the same indictment with violating Section 97-37-37. Id. at 366. For the armed-robbery conviction, the trial court sentenced Johnson to seven years, with four years suspended, and supervised probation upon release. Id. The trial court also imposed an additional sentence of five years, as prescribed by Section 97-37-37, to run consecutively to the armed-robbery sentence. Id. Johnson appealed, claiming that the question of whether he used a firearm during the commission of a felony was never properly submitted to the jury. Id. We found the issue meritless, based on the following jury instruction that was submitted to the jury:

If you find from the evidence in this case beyond a reasonable doubt that:
(1) on or about December 30, 2008, the defendant, Laharrison Johnson, while aiding and abetting or acting in concert with another or others, did willfully, unlawfully and feloniously,
(2) take car speakers, an Ipod, a car stereo amplifier and two guns in good [sic] and lawful money of the United States of America, property of Travis Amos,
(3) from the person or from the presence, and against the will of Travis Amos,
(4) by putting Travis Amos in fear of immediate injury to his person by displaying a deadly weapon, to-wit; a pistol,
then you shall find the defendant guilty of Armed Robbery.
If the State has failed to prove any one or more of these elements beyond a reasonable doubt, then you shall find the defendant not guilty.

Id. at 367 (emphasis added). We found that the jury had decided each element of the enhanced penalty statute when it found Johnson guilty of armed robbery by use of a firearm, and Section 97-37-37 required determination of no other factor that had not already been decided by the jury. Id.

¶ 21. Here, though, the fact that Waits used a firearm during the commission of the felony crime of manslaughter can be inferred only from the evidence, not the jury’s findings. Thus, the trial judge was not permitted to enhance Waits’s sentence under Section 97-37-37.

¶ 22. We point out, however, that based on the record before us, it is unclear whether Waits’s twenty-year sentence for manslaughter was actually enhanced. Both Waits and the State contend that the trial judge sentenced Waits to a total of twenty-five years in the custody of the Mississippi Department of Corrections-twenty years (the maximum) for the manslaughter conviction and an additional five years under Section 97-37-37. But, the sentencing order merely reads: “It is therefore ordered and adjudged the Defendant, DAVID WAITS for such crime of MANSLAUGHTER 97-3-25, to which he has been found Guilty as Charged, be and hereby is sentenced to serve a term of 20 YEARS in the custody of the [MDOC].” And at the top of the order, next to Waits’s date of birth and social security number, is simply the notation: “ENH (GUN) 97-37-37.” We also point out that, according to the trial transcript, immediately after the jury found Waits guilty of manslaughter, the trial judge announced in open court: “It will be the sentence of the Court that you be remanded to the custody of the Department of Corrections for a period of twenty years.” The State then informed the trial judge that Waits had a gun-enhancement charge. The trial judge replied, “the [cjourt will retain jurisdiction over that for argument....”

¶ 23. Ordinarily, the uncertainty found in the sentencing order would require clarification from the trial court. But, having found that the trial court was not permitted to enhance Waits’s sentence under Section 97-37-37, we instead reverse Waits’s sentence in part and remand for the trial court to strike the gun-enhancement reference from the sentencing order.

CONCLUSION

¶ 24. We affirm the judgment of conviction for manslaughter and Waits’s twenty-year sentence. We vacate Waits’s sentence in part and remand to the Hinds County Circuit Court with the instruction that the trial court strike the gun-enhancement reference from the sentencing order.

¶ 25. CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE ENHANCEMENT FOR USE OF A FIREARM UNDER SECTION 97-37-37 IS REVERSED AND THE CASE IS REMANDED FOR THE TRIAL COURT TO STRIKE THE GUN ENHANCEMENT FROM THE SENTENCING ORDER.

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

DICKINSON, Presiding Justice,

concurring in part and dissenting in part:

¶ 26. The majority correctly affirms Waits’s conviction. But, because I do not believe the firearms enhancement violated Waits’s Sixth Amendment right to trial by jury — and because I see no need to remand this case — I concur in part and dissent in part.

¶ 27. It is well-settled that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The majority finds that the firearm enhancement was not decided by a jury beyond a reasonable doubt because “none of the jury instructions submitted specifically mention the term firearm (or the like), a critical element of Section 97-37-37.” The majority further finds that Jury Instruction S-7 was insufficient to submit this issue to the jury. I disagree.

¶ 28. Jury Instruction S-7 — the only manslaughter instruction given to the jury — required the jury to find the use of a firearm beyond a reasonable doubt. Specifically, it stated:

[I]f you find from the evidence in this case beyond a reasonable doubt that:

1. The Defendant David Waits;
2. On or about April 9, 2010;
3. In the First Judicial District of Hinds County, Mississippi;
4. Did shoot and take the life of Wai-vous McGee, acting on his actual and bona fide belief that such was necessary to protect himself from great bodily harm or death at the hands of McGee, but that such belief by the Defendant was not a reasonable belief under the circumstance;
then you may find the defendant guilty of the lesser-included offense of manslaughter.

¶ 29. At trial, Waits admitted to shooting McGee with his own gun. And, the medical examiner testified that McGee had received twenty-five individual gunshot wounds. So, based on this evidence, the manslaughter instruction, and the fact that the jury convicted Waits of manslaughter, the jury, by necessity, must have found that Waits used a firearm to cause McGee’s death. While perhaps preferable, I see no requirement that the jury instruction include the word “gun” or “firearm.” I would affirm Waits’s enhanced sentence.

RANDOLPH, P.J., JOINS THIS OPINION.

      .Three spellings of McGee's name are in the record:
      1. The Mississippi State Medical Examiner's Office Autopsy Report spells McGee’s name: "Wavious.”
      2. The indictment spells McGee's name: "Wavoius”
      3.The trial transcript spells McGee’s name: "Waivous”
      We use the spelling contained in the autopsy report.

      . Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

      . Maj. Op. at 19.

      . Id.

      . (Emphasis added.)


author: PIERCE, Justice,

text:
    Susan V. COOPER v. The ESTATE OF William David GATWOOD.
    No. 2012-CA-00508-SCT.
    Supreme Court of Mississippi.
    Aug. 15, 2013.

      Tadd Parsons, Jack Parsons, Wiggins, attorneys for appellant.
    Richard C. Fitzpatrick, Poplarville, attorney for appellee.
   PIERCE, Justice,

for the Court:

¶ 1. This case has its origin in a 1996 divorce decree in Lamar County. Thirteen years after the divorce was finalized, the Lamar County Chancery Court found that the former husband, John David Gat-wood, appellee in this case, was in arrears on certain financial obligations imposed by the 1996 divorce decree. Because of various extenuating circumstances, the chancellor ordered Gatwood to pay off his debt in monthly installments. More than a year after the chancery court judgment, the former wife’s attorney, Jack Parsons, successfully filed a suggestion for writ of garnishment in the Lamar County Circuit Court, obtaining a writ of garnishment significantly accelerating payment of Gat-wood’s financial obligations. Circumstances related to the manner in which the writ of garnishment was obtained resulted in sanctions against Parsons; the garnishment proceedings also gave rise to other rulings which have been appealed to this Court.

FACTS

¶ 2. The dispute arises from a 1996 divorce decree between William David Gat-wood and Susan Gatwood (currently Susan Cooper, appellant in this case). That decree required Gatwood to pay child support as well as life insurance, medical insurance, and medical expenses for his minor children. For thirteen years, Gat-wood timely paid the child support but did not provide the required insurance or contribute to the children’s medical expenses. In 2009, Cooper brought a contempt action against Gatwood in Lamar County Chancery Court based on his failure to pay the insurance premiums and medical expenses, but not for child support. On September 28, 2009, the chancellor awarded Cooper $68,671.27. However, because Cooper had waited an extended period of time to bring the action, and because Gatwood had made substantial financial contributions for the children’s upbringing beyond regular child support, the chancellor reasoned that “equity required” the award not be paid in a lump sum but rather ruled that it be “paid at the rate of $200.00 each month.” The chancellor did not award interest.

¶ 3. More than a year later, on December 1, 2010, Parsons filed on Cooper’s behalf a suggestion for writ of garnishment in the Lamar County Circuit Court against Lamar Auto Salvage, asserting that Lamar Auto was Gatwood’s employer and that Gatwood was the judgment debtor for $68,671.27, plus interest at a rate of eight percent from the date of judgment. However, Parsons failed to disclose critical facts: specifically that the chancellor had ruled the award be paid in monthly installments, without interest due. Moreover, Parsons failed to disclose that Gatwood was current on all monthly payments due under that order.

¶ 4. In February 2011, after receiving no response from Lamar Auto Salvage, the circuit court issued a default judgment against Lamar Auto. Then, on July 28, 2011, the circuit court entered an order granting Lamar’s motion to set aside the default judgment against Lamar based upon an agreement reached between Lamar and Cooper, that Lamar would remit $35,885.50 to Cooper. Upon receipt of the funds, Parsons was to communicate confirmation of same to the circuit clerk so the clerk could then cancel the default judgment against Lamar. Shortly thereafter, Lamar paid $35,885.50 to Parsons on behalf of Cooper for the garnishment action. On Monday, August 8, 2011, Gatwood filed a Motion to Amend/Alter Judgment for a New Trial and Other Relief. In October 2011, after receiving a letter from Parsons stating that the garnishment against Lamar remained in full force and effect and that Lamar was to continue withholding the statutory allowance, Lamar paid an additional $4,963.49 on the garnishment action to Parsons on behalf of Cooper. In November 2011, Gatwood filed a motion for sanctions based on Parson’s representations to the circuit court. In December 2011, the circuit court entered an order staying further execution on the garnishment. Cooper thereafter filed a motion to dismiss, claiming inter alia that Lamar was not a party to the suit and thus had no standing to file any pleadings in the action. (According to the circuit court, Cooper meant to assert that Gatwood was not a party to the garnishment action.)

¶ 5. The circuit court joined Gatwood as a permissive party under Mississippi Rule of Civil Procedure 19, though the motion was filed one day past the ten-day deadline. (The deadline fell on a Sunday.) The circuit court found that Parsons had violated the Litigation Accountability Act and Mississippi Rule of Civil Procedure 11 by materially misrepresenting the terms of the Lamar County Chancery Court’s 2009 judgment. The judge accordingly issued sanctions, awarded attorneys’ fees to both Gatwood and Lamar Auto, and voided the garnishment judgment against Lamar Auto. Gatwood died on June 29, 2012. The Estate of William David Gatwood was substituted as appellee (“Gatwood”).

¶ 6. On appeal, Cooper raises six issues:

1. The court erred when it considered the motion to amend/alter judgment for a new trial and other relief because it was not filed as required by Rule 59 of the Mississippi Rules of Civil Procedure.
2. The court lacked jurisdiction to change the chancery court judgment when the judgment stated “for which let proper execution issue.”
3. William David Gatwood had no standing to become a party in the garnishment proceedings. The debtor is not necessary and should not be made a party.
4. The court lacked jurisdiction to retroactively modify the child-support payment order by the chancery court.
5. The court erred when it assessed sanctions and penalties against the plaintiff and her attorney.
6. The court erred when it ordered the return of funds from the garnishment.

¶ 7. Gatwood raised two issues:

1. Whether all issues other than the sanctions order were mooted by the death of William David Gatwood.
2. Whether the sanctions order is valid and enforceable jointly and in solido against Susan V. Cooper and Jack Parsons.

¶ 8. The primary issue on appeal is whether the sanctions and attorney’s fees can be sustained. The other issues raised by Cooper will be discussed as needed. In addition, this Court will address Gatwood’s assertion that all issues, other than sanctions, are mooted by the death of Gatwood.

STANDARDS OF REVIEW

¶ 9. It is well-settled that “[a] trial judge’s finding is entitled to the same deference as a jury and will not be reversed unless manifestly wrong.” Miss. Dep’t of Transp. v. Johnson, 873 So.2d 108, 111 (Miss.2004). “A decision of a circuit judge sitting without a jury falls under the manifest error standard of review.” Sweet Home Water and Sewer Ass’n v. Lexington Estates, Ltd., 613 So.2d 864, 871 (Miss.1993). If the imposition of sanctions raises a question of law, the standard of review is de novo. Amiker v. Drugs for Less, Inc., 796 So.2d 942, 945-46 (Miss.2001).

ANALYSIS

¶ 10. As stated above, the primary issue on appeal is whether the sanctions and attorneys’ fees can be sustained. Cooper seeks reversal for three separate reasons and presents arguments in favor of all three positions. Unfortunately, with regard to these claims, Cooper either has misconstrued the dispositive issue or has muddled the issue such that her arguments focus on matters of no relevance to the case at hand.

¶ 11. First, Cooper argues that Rule 11 sanctions and attorneys’ fees were imposed improperly because Parsons was acting within the proper purview of an attorney seeking a garnishment order on behalf of a deserving client. The logic of this argument seems to be that a writ of garnishment is a well-accepted remedy, and therefore, seeking such a writ on behalf of a party who has obtained a judgment is respectable and certainly not a “frivolous” claim that will trigger Rule 11 sanctions.

¶ 12. Cooper’s argument, however, fails to address the fact that the writ of garnishment is appropriate relief only when there is an underlying judgment upon which the garnishment order is based. In this case, no such judgment existed. At the' time Cooper obtained the writ, Gatwood was current with his financial obligations, as per the terms of the chancellor’s order. To obtain the writ of garnishment, Cooper had to actively misrepresent the chancellor’s order. The trial court found that it was a misrepresentation for which the strongest sanctions were appropriate.

¶ 13. Cooper also claims that Gatwood’s joinder was improper for two reasons: (1) that Gatwood was untimely added and (2) that he lacked standing. ■ However, Cooper’s arguments fail. The Mississippi Rules of Civil Procedure allow for Gatwood to be given one day past the filing deadline, because the final day in that period fell on a Sunday. As to standing, the circuit court found that Gatwood was a necessary party in this instance, finding as follows:

A personal judgment against Gatwood existed in this court; Gatwood submitted himself to the jurisdiction of this court, and an unjustified garnishment action was brought in this court which imposed an additional and extraordinary burden upon Gatwood which was in direct conflict to what the chancery court judgment had previously imposed upon him.

We agree with the circuit court. Gatwood held a “sufficient interest” in the garnishment action, as required by Rule 19, because the entire basis for the garnishment rested upon Gatwood’s alleged obligation.

¶ 14. Cooper also challenges the chancellor’s authority to order Gatwood to make installment payments of overdue insurance premiums and medical expenses not covered by insurance. Cooper essentially asserts that these obligations constitute “regular child support” or its equivalent, and because regular child support vests when it is incurred, the chancellor lacked authority to allow Gatwood to pay them in monthly installments. Whether life insurance premiums and medical expenses are to be equated with “regular child support” for vesting purposes is not before this Court. Even if the chancellor was in error when he ordered the installment payments, the appropriate avenue for relief was to appeal that decision. Cooper, in essence, is arguing that, if the chancellor improperly ordered the installment payments, then the order can be ignored. Such logic is unprecedented in Mississippi as well as in other jurisdictions in the United States.

¶ 15. In its brief, the Gatwood estate argues that all issues, aside from the sanctions, are now moot because of Gatwood’s death during the pendency of this appeal. That argument fails for several reasons, most notably that the issue has not been addressed by a trial court. Even if this Court were to address the issue, it would fail, because Cooper had incurred significant medical costs, which, under both the 1996 divorce decree and the chancellor’s 2009 order, Gatwood was obligated to pay.

A. Whether the circuit court erred by awarding Rule 11 sanctions and awarding attorneys’ fees.

¶ 16. Cooper argues the circuit court’s assessment of Rule 11 sanctions and its findings that the Litigation and Accountability Act were violated cannot be sustained. She asserts that the suggestion for a writ of garnishment was not frivolously filed and contends that it was simply the good-faith effort of a “mother trying to collect back child support owed by a deadbeat dad.”

¶ 17. Rule 11 of Mississippi Civil Procedure provides that “[I]f any party files a motion or pleading which, in the opinion of the court, is frivolous ... the court may order such a party, or his attorney, or both, to pay to the opposing party or parties the reasonable expenses ... including reasonable attorneys’ fees.” M.R.C.P. 11. “The term ‘frivolous’ as used in the Litigation Accountability Act takes the same definition as it does under Rule 11: ‘a claim or defense made without hope of success.’ ” In re Spencer, 985 So.2d 330 (Miss.2008).

¶ 18. Parsons could not, in good faith, have believed that Cooper’s suggestion for writ of garnishment would succeed. Had Parsons disclosed the entirety of the chancellor’s 2009 order — which did not include an eight-percent interest rate, which did include the explicit order for payments to be paid in monthly installments, and which found that Gatwood was up-to-date on requisite regular child-support payments — the circuit court certainly would not have issued the writ of garnishment. Nobably, the judge who relied on Cooper’s representations and signed the writ of garnishment is the same judge who later issued the sanctions.

¶ 19. Moreover, regardless of the obvious frivolity of the motion for garnishment, Parsons undoubtedly knew that misrepresentations to the court were violations of the Litigation Accountability Act and Rule 11, as he had been sanctioned nine years ago under similar circumstances. In In re Estate of Ladner, 909 So.2d 1051 (Miss.2004), this Court upheld an award of attorneys’ fees and sanctions against Parsons on facts similar to the case at hand. In Ladner, Parsons represented Fred Lad-ner, who claimed his brother, Luther, had possession of cows which lawfully were his. Fred claimed these cows were an inheritance from their deceased brother, Garland. Parsons obtained an order from the chancery court to remove the livestock from Luther’s property; that order directed the sheriff to accompany Fred in the repossession. “Guns were brandished, and Luther was arrested. After the dust settled, the chancellor found that Garland had made inter vivos gifts” to Luther and that Fred and Parsons had violated Mississippi Rule of Civil Procedure 11 and the Litigation Accountability Act because they knew of the gift but failed to inform the court of it when they obtained the order for seizing the livestock. Id. at 1053.

¶ 20. In this case, the circuit court made a factual finding that Parsons intentionally had misrepresented the terms of the judgment to the court. The circuit judge made clear that if Parsons had disclosed all the material terms of the underlying judgment, Parsons would have had no chance of success. Considering these factors, along with the fact that Parsons has been sanctioned under similar circumstances, this Court cannot say that the circuit court erred in finding that Rule 11 sanctions and attorneys’ fees were proper.

B. Whether Gatwood was improperly added as a party to the garnishment proceeding between Cooper and Lamar Auto.

1. Whether Gatwood was untimely added.

¶ 21. Cooper argues Gatwood was improperly added, as he was joined more than ten days after the default judgment against Lamar Auto. The Mississippi Rules of Civil Procedure provide in relevant part that “a motion to alter or amend a judgment shall be filed no later than ten days after the entry of the judgment.” M.R.C.P. 59(e). Although Gatwood filed a motion to amend the judgment eleven days after Cooper obtained a settlement order, the final day in the applicable period fell on a Sunday. When seeking to amend a judgment, Rule 6 provides that the last day in the ten-day period shall be included “unless it is a Saturday, a Sunday, or a legal holiday.” M.R.C.P. 6(a). In this case, the final day in the ten-day period to amend (August 7, 2011) fell on a Sunday. Thus, Cooper’s contention that Gatwood was untimely added is without merit.

2. Whether Gatwood lacked standing to contest the garnishment proceeding between Cooper and Lamar Auto.

¶ 22. Cooper further argues Gat-wood was joined improperly under Rule 19 because he lacked standing to contest the agreed judgment between Cooper and Lamar Auto. Cooper contends that garnishment proceedings are exclusively between garnisher and garnishee and thus, that Gatwood was an unnecessary party. This contention fails because it attempts to equate the necessity of a party in an action with that party’s interest and ability to join. Although Gatwood was not an indispensable party, it does not follow that he lacked sufficient interest to contest the proceeding. Mississippi Rule of Civil Procedure 19 allows a court permissively to join any party who “claims an interest relating to the subject matter and is so situated that the disposition of the action in his absence may as a practical matter impair or impede his ability to protect that interest.” M.R.C.P. 19.

¶ 23. The Mississippi Rules of Civil Procedure apply to garnishment proceedings. In First Mississippi National Bank v. KLH Industries, Inc., 457 So.2d 1333, 1334 (Miss.1984), this Court held that “a garnishment proceeding is in the nature of a civil action and is certainly subject to the rule-making power of this Court and the Mississippi Rules of Civil Procedure the same as any other civil action.” Moreover, Mississippi Code Section 11-35-47 contemplates the presence of a debtor defendant in a garnishment proceeding as a permissive party, although the subject of that statute is irrelevant to the case at hand. Section 11-35-47 does not limit the circumstances in which a party may be joined to a garnishment proceeding but simply recognizes that a party may be joined. Miss.Code Ann. § 11-35-47 (Rev. 2002). The circuit judge therefore had the authority to add Gatwood to the garnishment proceeding between Cooper and Lamar Auto, provided that Gatwood claimed a sufficient interest.

¶ 24. Gatwood most certainly possessed a sufficient interest to be joined. His personal property was under Lamar Auto’s control, and he asserts that Cooper obtained title and possession to this property through fraudulent misrepresentation. The circuit court rightly concluded Gat-wood held a sufficient interest, and the court acted within its authority by allowing Gatwood to join.

C. Whether insurance premiums and uninsured medical expenses constitute “regular child-support payments” which vest when incurred.

¶ 25. The Lamar County Chancery Court explicitly stated the overdue insurance costs and unpaid medical expenses were “to be paid at the rate of $200.00 each month, beginning October 2009.” Cooper, however, contends these unpaid expenses constitute regular “child support” and thus vest in full when due. This assertion, according to Cooper, supports the proposition that the chancellor lacked authority to order the award be paid in monthly installments and, therefore, that the sanctions and attorneys’ fees were unwarranted. The contention fails for two reasons. First, Mississippi distinguishes between “regular child support,” which vests when due, and other types of support, which practically cannot vest when incurred. Second, even if the chancellor had no basis for the monthly installment order, Cooper should have appealed the chancellor’s order rather than misrepresenting the terms of the order to the Lamar County Circuit Court. This issue is without merit.

D. Whether the child support issues are moot because of Gatwood’s untimely death.

¶ 26. Gatwood’s estate argues that all issues, aside from the sanctions and attorneys’ fees, are now moot as a result of Gatwood’s death. Because the children have inherited the entirety of their father’s property, Gatwood’s estate argues, Cooper is no longer entitled to satisfaction from the 2009 chancery court order, as that award was given to her only in her capacity as a fiduciary for the children. Gatwood’s argument is that it would be illogical for the children to step into the shoes of their father and owe funds to their mother, who, as the custodial parent, had a duty to provide the same insurance and medical care for her children, if she were able. Gatwood’s estate points out that Cooper did not bring suit for these payments for more than nine years and therefore was able to provide those needs. Gatwood’s contention lacks merit, because the expenses already had accrued and were payable to the custodial parent, Cooper, not to the children. Further, because Gatwood died while this case was on appeal, the facts have not been examined by a trial court. This issue is not properly before this Court.

CONCLUSION

¶ 27. This Court cannot say that the trial court erred in this case. Grounds certainly supported the trial court’s finding that attorney’s fees and sanctions against Parsons and his client Cooper were appropriate. Further, Gatwood’s contention that all issues, other than sanctions, are moot is not properly before this Court. For these reasons, the judgment of the Lamar County Circuit Court is affirmed.

¶ 28. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, KING AND COLEMAN, JJ., CONCUR.


text:
    THE MISSISSIPPI BAR v. Jimmie L. COLLINS.
    No. 2012-BD-02048-SCT.
    Supreme Court of Mississippi.
    Aug. 15, 2013.

      James R. Clark, Jackson, attorney for appellant.
    Jimmie L. Collins, appellee, pro se.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. The Mississippi Bar filed a Formal Complaint seeking to disbar Jimmie Collins due to a 1989 felony conviction. But, because disbarring an attorney approximately twenty-four years after his conviction and thirteen years after the Mississippi Bar restored him from inactive to active status, fails to serve the purposes of the Rules of Discipline, we deny the Bar’s request for disbarment.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 27, 2012, the Mississippi Bar filed a Formal Complaint seeking the disbarment of Jimmie L. Collins pursuant to Rule 6 of the Rules of Discipline for the Mississippi State Bar. The Bar alleges that Collins, on or about July 20, 1989, was convicted of aggravated assault in the District Court of Fulton County, Georgia. A certified copy of the conviction and the indictment were attached to the Formal Complaint. The Bar also requested that Collins be taxed with all costs and expenses, pursuant to Rule 27(a).

¶ 3. Collins was served with the Complaint and Summons on February 5, 2013, and was ordered to respond within thirty days. He filed his answer and motion to dismiss on February 26, 2013, in which he admitted that he had been guilty of the crime, but denied that he should be disbarred from the practice of law. He argues that the Complaint should be dismissed because it “fails to state a cause for which relief can be granted.” And, according to Collins, at the time of the conviction, his Mississippi Bar license was on inactive status.

¶ 4. Collins states that, when he applied for reinstatement, he never concealed or misrepresented the truth about this felony conviction, and that, in his application for reinstatement to the practice of law, he answered all questions truthfully and was placed back on active status in 2000. Collins currently serves as the chair of the Senior Lawyers Section of the Mississippi Bar Association.

LAW AND ANALYSIS

¶ 5. This Court holds exclusive jurisdiction over bar disciplinary matters. “We conduct a de novo review in cases involving the discipline of attorneys.” The Bar has the burden of proving an attorney’s misconduct by clear and convincing evidence.

¶ 6. Rule 6 of the Rules of Discipline for the Mississippi Bar provides for disbarment when “any attorney subject to the disciplinary jurisdiction of the Court” is “convicted in any court of any state or in any federal court ... of any felony (other than manslaughter) or of any misdemeanor involving fraud, dishonesty, misrepresentation ....” Collins admitted that he was convicted for aggravated assault in 1989. Further, the Bar presented the Court with a certified copy of this conviction. Under Rule 6(a), the certified copy of the conviction “shall be deemed conclusive evidence thereof’ and the “Court shall then forthwith strike the name of the attorney and order his immediate suspension from the practice of law.”

¶ 7. Once the Bar shows that the time for appeal has expired or that all appeals were exhausted without reversal, Rule 6(d) requires automatic disbarment. Collins also admitted that the time for appeal has passed without a resolution in his favor. However, for reasons discussed below, we decline to disbar Collins for this offense.

¶ 8. This Court “is the ultimate judge of matters arising under the Rules of Discipline for the Mississippi Bar.” In Broome v. Mississippi Bar, this Court’s order suspending Broome for thirty days provided for automatic reinstatement. At that time, Rule 12(a) allowed for reinstatement of an attorney suspended from the practice of law only upon petition. We held, however, that providing for automatic reinstatement, in contravention of Rule 12, was “within the scope of this Court’s exclusive and inherent jurisdiction of attorney discipline matters” and we ordered accordingly.

¶ 9. The purpose of attorney discipline “is not to punish the guilty attorney, but to protect the public, the administration of justice, to maintain appropriate professional standards, and to deter similar conduct.” The application and enforcement of this rule — under the facts and circumstances of this particular case — does little to protect the integrity of the legal profession, nor would it have a deterrent effect.

¶ 10. This conviction is twenty-four years old. As a convicted felon, Collins has been allowed to hold a Mississippi bar license, to actively practice law in Mississippi for the past thirteen years, and even to hold office within the Mississippi Bar Association. The Bar does not allege that Collins has violated any other rule or committed any other infraction of any kind during the past twenty-four years.

¶ 11. The Bar also presents us with no evidence that, when it reinstated Collins to the active practice of law, he misrepresented any fact or failed to answer any question truthfully. To disbar Collins now, after the passage of more than a decade since his reinstatement, and where he has had substantial time to mature and establish himself in this profession, would be a harsh and unjust result for conduct which occurred so long ago, and which the Bar had an opportunity to discover before returning him to active practice in 2000.

¶ 12. Had the Bar successfully sought Collins’s disbarment thirteen years ago, he certainly could have pursued — and based upon his record, likely would have been granted — reinstatement long ago. As a senior member of the Bar, disbarment now would certainly prejudice him.

¶ 13. Accordingly, we find that this matter is “within the scope of this Court’s exclusive and inherent jurisdiction of attorney discipline matters.” And as “the ultimate judge of matters arising under these rules,” we decline to punish Collins for conduct that occurred almost two-and-a-half decades ago.

CONCLUSION

¶ 14. To disbar Collins under the facts and circumstances of this particular case would be a harsh and ineffective sanction which fails to further the purposes of the Rules. Therefore, we deny the Bar’s request for Collins’s disbarment and assessment of costs.

¶ 15. THE MISSISSIPPI BAR’S REQUEST FOR THE DISBARMENT OF JIMMIE L. COLLINS FROM THE PRACTICE OF LAW IN THE STATE OF MISSISSIPPI, DENIED.

WALLER, C.J., RANDOLPH, P.J., LAMAR, KITCHENS CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . An "inactive member” is a "member, in good standing, who is not engaged in the practice of law in this state.” Miss.Code Ann. § 73-3-120(b) (Rev.2012). An "active member" is “any person admitted to practice law in this state and who is engaged in the practice of law in this state.” Miss.Code Ann. § 73-3-120(a) (Rev.2012).

      . Mississippi Bar v. Shelton, 855 So.2d 444, 445 (Miss.2003).

      . Id.

      . Id. (citations omitted).

      . Miss. R. Discipline 6(a).

      . Id.

      . "When time for appeal from ... conviction ... expires or all appeals have been concluded without reversal, Complaint Counsel shall certify that result to the Court, and the Court shall forthwith enter an order of disbarment.” Miss. R. Discipline 6(d).

      . Broome v. Miss. Bar, 603 So.2d 349, 354 (Miss.1992) (citing Miss.Code Ann. § 73-3-303 (Supp.1991); Miss. R. Discipline 1(a)).

      . Broome, 603 So.2d at 350.

      . Id. at 354.

      . Miss. State Bar v. A Miss. Attorney, 489 So.2d 1081, 1084 (Miss.1986).

      . Although it is unclear that Collins was intoxicated when he committed this crime, he submits that he has abstained from the use of alcohol since 1995 and "does not cohort with ... persons of unsavory character with the propensity to place one in an uncompromising[sic] situation.”

      . Collins operates his own law firm in Cleveland, Mississippi.

      . Miss. R. Discipline 1(a).


author: ISHEE, J„

text:
    William Martin FALKNER and Wife, Valerie J. Falkner, Appellants v. John E. STUBBS Jr. d/b/a Mississippi Polysteel, Appellee.
    No. 2010-CA-01664-COA.
    Court of Appeals of Mississippi.
    March 6, 2012.
    Rehearing denied Sept. 18, 2012.

      John P. Fox, Houston, attorney for appellants.
    Gene Barton, Okolona, attorney for ap-pellee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J„

for the Court:

¶ 1. In 2000, William Martin (Martin) Falkner and his wife, Valerie J. Falkner (the Falkners), hired John E. Stubbs to build a basement, prior to the Falkners building a log cabin above the basement on their land in Chickasaw County, Mississippi. Stubbs and the Falkners entered into an oral contract for Stubbs to complete the basement for a set fee of approximately $25,000. However, after completing the basement, the Falkners requested that Stubbs continue to work on the log cabin. Stubbs complied and stated the work would cost between $150,000 and $200,000. After the basement was completed and work on building the log cabin had begun, the Falkners instructed Stubbs and his workers to permanently vacate the premises. Stubbs complied and requested payment from the Falkners for the remainder of his expenses, including labor and materials. The Falkners refused, and Stubbs eventually filed a contractor’s lien in Chickasaw County Chancery Court on the Falkners’ property. He later filed the instant action in Chickasaw County Circuit Court seeking reimbursement for his losses. After a bench trial on the matter, the circuit judge ruled Stubbs was entitled to $60,723.53 from the Falkners. Aggrieved, the Falkners appeal. We affirm in part and reverse and remand in part.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Stubbs, a certified public accountant (CPA) by trade, developed an interest in construction at a very young age. He was raised on a farm outside of Ripley, Mississippi, where he helped his father build barns and various other farm buildings through tutelage from Stubbs’s father and grandfather who was a carpenter. When Stubbs became a teenager, he also worked for his uncle who was a general contractor.

¶ 3. Despite Stubbs’s exposure to the field of construction at a very young age, he became a CPA in his adult years but maintained construction work as a hobby. Before retiring from the practice of accounting in 1996, Stubbs discovered Polys-teel, a stay-in-place insulated concrete form which allowed structures to be built of solid concrete reinforced with rebar. In February 1997, Stubbs attended a Polys-teel training program and later bought his own Polysteel franchise to become an official distributor.

¶ 4. One of his first independent projects with Polysteel was the August 1997 construction of his family’s home — a structure measuring almost 10,000 square feet under the roof, including porches, garages, and living spaces. At the time of at trial, Stubbs and his family had lived in the house for approximately twelve years without any problems. Between the time of his home’s construction and his introduction to the Falkners, Stubbs built many other structures using the Polysteel, including several basements. Stubbs testified his fee schedule included $25 an hour for labor plus the cost of materials.

¶ 5. In 2000, Stubbs was training Mike Bruce in Saltillo, Mississippi, in the use of Polysteel for Bruce’s basement. Bruce and Martin worked together, and Bruce introduced Martin to Stubbs during the construction of Bruce’s basement. Martin discussed with Stubbs and Bruce his plans to build a log cabin for himself and his wife using logs he had collected over the years as a forester. Martin indicated he would like to build a basement under the home and inquired with Stubbs as to the use of Polysteel in the basement. Martin and Stubbs agreed to meet again once Martin finalized the log cabin house plans.

¶ 6. Sometime later, Martin called Stubbs and met him at Stubbs’s office in Ripley, Mississippi. The plans Martin showed Stubbs did not include a basement. However, after reviewing the plans, Stubbs determined a basement could be put in place using Polysteel. After explaining how Polysteel worked, Martin also became interested in using Polysteel in the construction of one partition wall inside the home. Stubbs studied the plans in detail and explained to Martin that log cabins are typically more expensive to build than standard homes. According to Stubbs, he quoted Martin a price between $45 and $75 per square foot based on construction industry standards in the area. Stubbs also claims he advised the Falkners the price would also vary depending on the finishes and fixtures the Falkners chose. Since Martin planned on completing some of the work on the home himself, Stubbs told Martin the approximately^, 000-square-feet home would cost anywhere between $150,000 and $200,000, including the basement. Martin, however, asserts Stubbs quoted him $100,000 for completion of the entire home.

¶ 7. With regard to the basement alone, Stubbs estimated Martin’s cost around $25,000. Stubbs agreed to build the basement for no more than $25,000. Although specifics as to the price and billing were not discussed in detail, Martin hired Stubbs to construct the basement out of Polysteel. Stubbs’s work included construction of the basement floor, perimeter walls, and one interior wall using Polys-teel. Excavation, electrical wiring, and plumbing were to be handled by Martin. Work on the basement began in May 2000.

¶ 8. Stubbs received an up-front payment of $7,000 for costs associated with ordering Polysteel. Thereafter, Stubbs periodically submitted “request draws” from Martin and kept records of his and his two workers’ daily times as well as all invoices. Stubbs’s fee was $25 an hour plus travel costs.

¶ 9. After the basement space had been excavated from the Falkners’ land but pri- or to the pouring of the concrete floor, plumbing had to be completed. Although Martin originally stated his father was a plumber and would handle the basement plumbing, the plumbing was not installed in time to pour the concrete floor. As such, Stubbs installed the basement’s floor drain and completed plumbing for the basement’s bathroom. He also installed the piping for the basement’s water line.

¶ 10. Other changes to the initial agreement between Martin and Stubbs began to arise. For example, Martin increased the height of the basement, necessitating the purchase and installation of more Polysteel and waterproofing materials. Martin also decided to insert another Polysteel wall on the inside of the basement by the garage, to insulate the wall, and to install french doors on the wall. Martin later requested a wall be removed from the inside of the basement which required the insertion of a steel beam to support the floor above the basement. Martin also asked Stubbs to install the main floor of the home above the basement. These changes along with others made by Martin cost Stubbs extra time and money not initially accounted for in the $25,000 quote.

¶ 11. Work on the basement was completed approximately six weeks after the project began, at which point Stubbs had not been paid the full amount of $25,000. However, Martin asked Stubbs if he would continue assisting him in the completion of the home at the cost of Stubbs’s actual time and material expenses. Throughout the process of building the home, Martin continued to insist he would hire or enlist other workers to finish the home if Stubbs would continue work on it while he did not have other ongoing Polysteel projects. Stubbs agreed to continue helping Martin for an undetermined amount of time for the cost of Stubbs’s time and materials.

¶ 12. Stubbs’s activities in completing the home included, but were not limited to: purchasing materials for the home, furnishing his own equipment, transporting his crewmen to and from the job site, devising a method to notch the ends of the logs to ensure they interlocked properly, helping Martin stack the logs to be used on the home, installing a system which bound the logs together with the use of cables, building the roofs structure, installing decking, completing minor plumbing, completing much of the framing inside the home, and installing sub-floors. Because Martin served as his own general contractor, Stubbs was paid upon his request for a draw. In October 2000, prior to completion of the home, Stubbs requested a draw from Martin, but was denied payment and was told to remove his belongings and vacate the premises. At that time, Stubbs had been paid a total of $45,840.25.

¶ 13. Stubbs left the property as instructed and informed Martin he still owed Stubbs approximately $25,000, which Martin refused to pay. Martin then hired other workmen to finish projects so that Martin and his wife could move into the property in March 2001. As of November 2009, the Falkners were still living in the subject home. Nonetheless, in his refusal to pay Stubbs, Martin asserted Stubbs gave him an estimate of approximately $100,000 to complete the structure and he claims Stubbs had been overpaid by about $5,000 before his work was near completion. Martin argued any more payments to Stubbs would grossly exceed the original estimate of $100,000. However, Stubbs claims he never agreed to complete the home and maintains he told Martin the home would cost at least $150,000 to $200,000 to complete.

¶ 14. Shortly thereafter, Martin borrowed $150,000 using the home as collateral after the home appraised for $177,000, but he still refused to pay Stubbs. Stubbs filed a mechanics and materialman’s lien in the chancery court and later filed a lawsuit in the circuit court on August 29, 2001 against the Falkners to recover his losses. Although the case was set for trial on several occasions, Falkner received multi-pie continuances before finally agreeing to a bench trial after filing a cross-complaint on June 23, 2009.

¶ 15. The cross-complaint alleged major defects in the home due to Stubbs’s workmanship. However, the Falkners never provided the circuit court with documentation or testimony as to the cost of repair for the alleged defects. At the close of testimony, Stubbs and the Falkners requested the circuit judge inspect the premises to view the alleged deficiencies. The circuit judge complied and later stated: “The allegations in the Cross-Complaint as to unusual cracks or defects were not noted during the inspection.”

¶ 16. Furthermore, the Falkners asserted because Stubbs requested his draws and received his pay without submitting invoices or time sheets, he was not entitled to the money he claimed he was owed. However, the record reflects Stubbs kept detailed accounts of his time, his workers’ time, and all invoices for materials used in the construction of the Falkners’ home. The circuit judge went on to note:

There was no testimony as to how much it cost Falkner to repair any alleged defects; the value of the home when Stubbs was terminated; no evidence nor testimony that Stubbs did not purchase the materials contained in his accounting and that the materials were not used in the construction of the dwellingt;] and no evidence that Stubbs and his workmen did not perform the work contained in Stubbs[’s] detailed daily accounting.

¶ 17. At the close of the trial, the circuit judge ruled in favor of Stubbs. The circuit judge concluded the oral contract between the parties resulted in an agreement for Stubbs to construct the basement at a cost of $25,000 and the Falkners owed Stubbs the remainder of the $25,000. The circuit judge also determined after the basement was completed, Martin requested Stubbs and his workers continue construction on the home. The circuit judge found because of further work on the home, the Falkners owed Stubbs reimbursement for his actual time on the job and his workers’ time on the job on a quantum meruit basis, travel time for himself and his crew, and pre- and post-judgment interest. The circuit judge further stated Stubbs was entitled to reasonable attorney’s fees and all costs in bringing the actions. These costs totaled an award of $60,723.53 to Stubbs.

¶ 18. Aggrieved, the Falkners appeal claiming the circuit judge erred by not reducing the $25,000 price for the basement by the amount of work not completed by Stubbs and failing to consider certain witness testimony. They further assert the circuit judge erred in his quantum meruit analysis as to attorney’s fees to Stubbs.

STANDARD OF REVIEW

¶ 19. We have long held:

On appeal, this Court has a particular standard of review that it must apply when reviewing findings of fact made by a trial judge sitting without a jury. These such findings may not be disturbed or set aside on appeal unless manifestly wrong. In further explanation of this standard, these findings may not be upset here on appeal provided there is in the trial record substantial supporting evidence. It matters not that on the same proof we as trial judges might have found otherwise.... [Furthermore, a] trial judge, sitting as the trier of fact, is solely authorized to determine witness credibility.

Clark v. City of Aberdeen, 764 So.2d 508, 510 (¶ 9) (Miss.Ct.App.2000) (internal citations omitted). As such, while we will review questions of law de novo, we will not upset a trial judge’s findings of fact determined without a jury unless there is manifest error. Davis v. Countrywide Home Loans, Inc., 72 So.3d 1163, 1165 (¶ 8) (Miss.Ct.App.2011) (citation omitted).

DISCUSSION

I. Reduction of $25,000 and Consideration of Witness Testimony

¶ 20. As stated previously, we will not reverse the circuit judge’s findings of fact if they are substantiated by the record. Broadway Inn Express, LLC v. Advanced Constr. Technologies Ltd., 29 So.3d 104, 108 (¶ 13) (Miss.Ct.App.2010) (quoting Tricon Metals & Services, Inc. v. Topp, 516 So.2d 236, 238 (Miss.1987)). The Falkners first argue the circuit court erred by failing to reduce the original $25,000 price of the basement by the amount the Falkners claim they have done themselves due to Stubbs’s failure to complete the basement. As noted by the circuit court, the agreement between the Falkners and Stubbs was an oral contract. There is clear evidence in the record the original agreed-upon price for Stubbs’s construction of the basement was $25,000. Stubbs submitted very detailed accounting records including his labor and his workers’ labor broken down into daily hours during the entirety of the project. Stubbs also provided invoices and records of costs paid by Stubbs for the materials used in the home. While the Falkners claim Stubbs failed to complete the basement and the work contained defects, an on-site inspection performed by the circuit judge showed no sign of defects, nor can the Falkners point to costs associated with the repair of the alleged defects. Furthermore, Stubbs documented the progress of the basement project in photographs. The photographs clearly show the constructed basement and document some of the home’s construction on top of the basement as well.

¶ 21. While the Falkners point to Stubbs’s failure to submit the time sheets and invoices prior to the trial, the record reflects the fee agreement between the Falkners and Stubbs did not require Stubbs’s submission of such documents. Given Stubbs’s trade as a CPA, it comes as no surprise he kept daily records of his labor and material expenses. Nonetheless, the record indicates his agreement with the Falkners did not include a request for time and expense invoices until the Falkners refused to pay Stubbs for his work on their home.

¶ 22. According to Stubbs’s records, in the five months he worked on the Falk-ners’ home, he requested and received seven draws totaling $46,540.25. However, his records further indicate his labor and expenses well exceeded that amount due to Martin’s changes to the basement and his enlistment of Stubbs to continue working on the rest of the home.

¶ 23. Additionally, the defects and costs of completion alleged by the Falk-ners are unsubstantiated both in the record and pursuant to the circuit judge’s own examination of the property. Though the Falkners’ arguments on this issue are vague, at best, we assume their argument regards witnesses they produced at trial who testified about cracks and flaws in the home’s construction and the circuit judge’s consideration of the witnesses’ testimony. Having reviewed the trial transcript and the circuit judge’s orders, we cannot say the circuit judge failed to acknowledge the testimony at hand. While several witnesses discussed their observations of cracks in the walls or doors that would not close properly, the circuit judge viewed the property and could not locate the defects alleged. Additionally, it is within the purview of the circuit judge in this case to determine which witnesses to believe. “A trial judge, sitting as the trier of fact, is solely authorized to determine witness credibility.” Clark, 764 So.2d at 510 (¶ 9) (citation omitted).

¶ 24. As such, we find no error in the circuit judge’s conclusion that the $25,000 price for construction of the basement was agreed upon by the parties and is owed to Stubbs by the Falkners. Furthermore, we cannot say the circuit judge failed to consider the Falkners’ witnesses’ testimony. The mere fact that a judge rules against a party does not automatically mean the judge failed to consider that party’s witnesses. The circuit judge in this case was present for the witnesses’ testimony at trial and acknowledged the Falkners’ claims of defect in his final order and judgment. We find no error in the circuit court’s judgment. These issues are without merit.

II. Quantum Meruit Analysis of Fees

¶ 25. The Falkners assert the circuit judge erred by applying the theory of quantum meruit to determine Stubbs’s recovery for his labor and reimbursement for the amount he paid for his workers’ labor. However, we must note the Falk-ners failed to brief this issue on appeal. Indeed, the Falkners’ entire argument for all issues asserted consists of three pages, contains two citations to the law, and bears no mention of the circuit court’s application of quantum meruit to Stubbs’s and his workers’ fees. The only reference to quantum meruit after the Falkners’ initial statement of the issue at hand was in regard to the circuit court’s award of interest and attorney’s fees to Stubbs.

¶ 26. Mississippi Rule of Appellate Procedure 28(a)(6) states: “The argument shall contain the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” Because the Falkners failed to support or even mention their argument regarding the assessment of fees after defining the issue in the statement of issues, we are not bound to address it. See, e.g., McDonald v. McDonald, 69 So.3d 61, 68 (¶ 16) (Miss.Ct.App.2011) (citing M.R.A.P. 28(a)(6)). Nonetheless, we will analyze the issue briefly.

¶ 27. The circuit judge concluded the Falkners owed Stubbs reasonable fees for his work on the project and reimbursement for his payment to his workers. In doing so, the circuit judge reviewed Stubbs’s quoted price of $25 an hour and construction industry standards in the area. The circuit judge employed a quantum meruit analysis in determining that reasonable fees resulted in $20 an hour for Stubbs and between $7 and $10 an hour for Stubbs’s workers. The circuit judge also concluded Stubbs’s charge for travel time between his office and the job site at one-half his hourly rate was fair and reasonable with the reduced hourly rate of $20.

¶ 28. In his analysis, the circuit judge referenced Tupelo Redevelopment Agency v. Gray Corporation, 972 So.2d 495 (Miss.2007), wherein a contractor sought reimbursement of fees not paid. With regard to the measure of damages recoverable by a contractor based on quantum meruit, the Mississippi Supreme Court stated:

Whatever the measure of damages, they may be recovered only where and to the extent that the evidence removes their quantum from the realm of speculation and conjecture and transports it through the twilight zone and into the daylight of reasonable certainty.... [However, t]he rule that damages, if uncertain, cannot be recovered, applies to their nature, and not to their extent. If the damage is certain, the fact that its extent is uncertain does not prevent a recovery.

Id. at 516 (¶ 62) (citations omitted).

¶ 29. It is clear Stubbs provided ample documentation to prove he incurred substantial damages as a result of the Falkners’ refusal to pay him for his work on their home. He provided the circuit court with daily records of his hours and his workers’ hours on the job and invoices for the materials purchased by Stubbs and used on the job. The circuit judge’s application of quantum meruit to the case in his effort to determine a reasonable fee per hour does not render the award unjust. Stubbs’s losses were adequately documented in his records. The circuit judge merely used quantum meruit to determine the exact hourly fee reasonable under the circumstances. Furthermore, the application of quantum meruit is the very reason Stubbs’s $25-an-hour fee was reduced to $20 an hour, thereby benefitting the -Falk-ners. This issue is meritless.

III. Award of Interest and Attorney’s Fees

¶ 30. Finally, the Falkners claim the circuit court erred in awarding pre-judgment interest and post-judgment interest as well as attorney’s fees to Stubbs. In support of their argument, the Falkners merely state:

Mr. Stubbs and his attorney say they were unaware of the holdings in Southland Enterprises [sic], Inc. v. Newton County, Miss., 838 So.2nd [sic] 286 (2003) [sic], and Stanton & Associatess [sic], Inc. v. Bryant Construction Company [sic], Inc. [sic], 464 So.2nd [sic] 499 (1985) [sic], in which the Court has held that attorney fees and pre-judgment interest are not allowed in quantum meru-it suits.

¶ 31. A review of the cases cited by the Falkners supports their theory that quantum meruit cases prohibit an award of interest or attorney’s fees. We have held: “Quantum meruit is the measure of liability for a contract implied in law, and neither attorney’s fees nor prejudgment interest are available in a suit in quantum meruit.” McLain v. West Side Bone and Joint Center, 656 So.2d 119, 123 (Miss.1995) (citation omitted). Because the instant case involves a contract implied in law between the Falkners and Stubbs and is, therefore, a quantum merit suit, the circuit court’s award of pre-judgment interest and attorney’s fees was improper. However, nothing prohibits the circuit court’s assessment of post-judgment interest. The assignation of post-judgment interest was permissible. Accordingly, we reverse and remand the case to the circuit court for a determination of Stubbs’s award without the inclusion of pre-judgment interest and attorney’s fees.

¶ 32. THE JUDGMENT OF THE CIRCUIT COURT OF CHICKASAW COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE DIVIDED EQUALLY BETWEEN THE APPELLANTS AND THE AP-PELLEE.

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


author: FAIR, J.,

text:
    Herman SAUNDERS a/k/a Herman Fitzearld Saunders a/k/a Robert Marsh a/k/a Mickey Marsh a/k/a Adrian Marsh, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01905-COA.
    Court of Appeals of Mississippi.
    Sept. 18, 2012.
    Rehearing Denied April 9, 2013.
    Herman Saunders, appellant, pro se.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before GRIFFIS, P.J., CARLTON and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Herman Saunders appeals the Rankin County Circuit Court’s dismissal of his motion for post-conviction relief. Finding no error, we affirm.

FACTS

¶ 2. In March 1997, Saunders was convicted in the Lamar County Circuit Court of two counts of capital murder. He was sentenced on April 4, 1997, to serve two consecutive life sentences as a habitual offender, without eligibility for parole, in the custody of the Mississippi Department of Corrections. His convictions were affirmed on appeal by this Court in 1999. Saunders v. State, 733 So.2d 325, 333 (¶ 35) (Miss.Ct.App.1999).

¶ 3. In 2010 and 2011, Saunders requested leave to file a motion for PCR in the trial court. The Mississippi Supreme Court denied both motions. Saunders then filed a petition for writ of habeas corpus in the Circuit Court of Rankin County. His petition was dismissed without a hearing pursuant to Mississippi Code Annotated 99-39-11(2) (Supp.2011). He now appeals.

STANDARD OF REVIEW

¶ 4. The circuit court may summarily dismiss a PCR motion without an evi-dentiary hearing “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2). To succeed on appeal, the petitioner must: (1) make a substantial showing of the denial of a state or federal right; and (2) show that the claim is procedurally alive. Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss.1999).

¶ 5. “When reviewing a lower court’s decision to deny a petition for post[-]conviction relief [an appellate court] will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008). We review questions of law de novo. See Young, 731 So.2d at 1122 (¶ 9).

DISCUSSION

¶ 6. Section 99-39-3 of the Mississippi Code Annotated (Rev.2007) specifically repeals the common-law writs relating to post-conviction collateral relief, such as habeas corpus and the statutory post-conviction habeas corpus. The relief formerly afforded by those writs may now be obtained through a motion for post-conviction relief. Id. Further, under the chapter entitled “Habeas Corpus,” section 11-43-3 of the Mississippi Code Annotated (Rev.2002) provides: “This chapter shall not apply to any collateral relief sought by any person following his conviction of a crime. Such relief shall be governed by the procedures prescribed in the Mississippi Uniform Posb-Conviction Collateral Relief Act.” Thus, Saunders’s petition for a writ of habeas corpus was properly treated as a motion for post-conviction relief by the circuit court. See Jackson v. State, 915 So.2d 484, 485 (¶ 4) (Miss.Ct.App.2005).

¶ 7. Mississippi Code Annotated section 99-39-7 (Supp.2011) states that where a conviction has been affirmed on appeal, a motion for post-conviction relief shall not be filed in the trial court unless an order allowing such a filing is entered by the Supreme Court of Mississippi.

¶ 8. Saunders filed two motions for permission to proceed in the trial court, but both were denied. Because Saunders was not granted permission from the supreme court, the circuit court lacked jurisdiction to entertain his request for post-conviction relief. Similarly, this Court lacks jurisdiction to entertain an appeal of that action. See Crosby v. State, 982 So.2d 1003, 1005 (¶ 6) (Miss.Ct.App.2008). We affirm the circuit court’s judgment of dismissal.

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

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