author: LEE, C.J.,

text:
    Jason T. KEPHART and Anna Kephart, Appellants v. NORTHBAY PROPERTY OWNERS ASSOCIATION, Appellee.
    No. 2012-CA-01691-COA.
    Court of Appeals of Mississippi.
    Sept. 24, 2013.
    Rehearing Denied Jan. 14, 2014.
    Certiorari Denied March 27, 2014.
    Bradley Michael Glaze, attorney for appellants.
    Michael Stephen Maclnnis, Jon Jerdone Mims, Madison, attorneys for appellee.
    Before LEE, C.J., ROBERTS and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Jason and Anna Kephart own a leasehold interest in the Madison County, Mississippi subdivision of Northbay. The Northbay Property Owners Association (NPOA) is the homeowners’ association for the subdivision. Northbay is subject to a “Declaration of Covenant, Conditions!,] and Restriction” (the Declaration), as well as the Bylaws of NPOA (the Bylaws).

112. Article XIII, Section 13.02 of the Declaration allows homeowners to lease their properties for residential purposes when four conditions are met:

(i) the entire [djwelling and all the improvements on the [l]ot are leased, (ii) the term of the lease is at least six months, (iii) the lease otherwise complies with the rules and regulations adopted and promulgated from time to time by the Board of Directors, and (iv) the lease is subordinate and subject to [the] Declaration and is in writing.

¶ 3. Years prior to the Kepharts purchasing their leasehold, the Board of Directors of Northbay (the Board) adopted a resolution (the Resolution) that prohibited homeowners from renting or leasing their properties. Under Section 4.02 of the Declaration, the Board has the power “to do all acts and actions, except acts and actions which by law, this Declaration, the Charter, or the [Bylaws] may be exercised only by or are reserved only to the Members.” Additionally, this section granted the Board power “to create, establish!,] or approve policies or decision relating to the management and administration of [NPOA’s] affairs....”

¶ 4. While the Declaration gives the Board power to make rules and regulations, the power to amend the Declaration is reserved to the homeowners. Under Section 15.02:

“[The] Declaration may be amended, modified!,] and/or changed either (i) by the Declarant properly filing for record a Supplement prior to January 1, 1988, or (ii) by a Supplement properly filed if amended, modified!,] and/or changed prior to January 1, 2025, and thereafter by the Owners of at least 75% of the Lots. All such Supplements shall be subject to the approval of the District.”

Also, Article XI, Section 3 of the Bylaws provides that “no amendments of a material nature shall be made without the consent of fifty-one percent (51%) of the holders of a recorded first mortgage. An amendment to change any of the following would be considered as material: ... (x) Leasing of Residence except as set forth in Section 1 of Article XI.... ”

¶ 5. In August 2010, the Kepharts purchased a leasehold interest in Northbay. Despite notifications from NPOA that leasing the property was prohibited, the Kep-harts leased their property to Janelle Phillips. On October 27, 2011, NPOA brought suit against the Kepharts in Madison County Chancery Court. After the parties thoroughly briefed the issue and a hearing was held, the chancellor found that the Resolution prohibiting renting and leasing was valid and enforceable, and ordered the Kepharts to end the lease with Phillips.

¶ 6. The Kepharts now appeal arguing that the removal of the right to lease property requires an amendment to the Declaration, and therefore, the Board’s Resolution prohibiting renting and/or leasing is invalid.

STANDARD OF REVIEW

¶ 7. The Mississippi Supreme Court has held that “[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. Appellate courts review questions of law de novo.” Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 751-52 (¶ 7) (Miss.2003) (internal citations omitted).

DISCUSSION

¶ 8. Addressing restrictive covenants in Kemp v. Lake Serene Property Owners Ass’n, Inc., 256 So.2d 924 (Miss.1971), the Mississippi Supreme Court stated:

Generally, courts do not look with favor on restrictive covenants. Such covenants are subject more or less to a strict construction and[,] in the case of ambiguity, construction is usually most strongly against the person seeking the restriction and in favor of the person being restricted.

Id. at 926. Additionally, in Kinchen v. Layton, 457 So.2d 343, 346 (Miss.1984), the Court noted:

[Restrictive covenants] should be fairly and reasonably construed[,] and the language used will be read in the ordinary sense.... The entire instrument should be considered in ascertaining its meaning, but the restrictions should not be extended by strained construction, especially when, as in this case, the restrictive covenants expressly permit the use being made of the land.

(Quoting Schaeffer v. Gatling, 243 Miss. 155, 159, 137 So.2d 819, 820 (1962)). Restrictive covenants “are to be fairly and reasonably interpreted according to their apparent purpose.” Mendrop v. Harrell, 233 Miss. 679, 688, 103 So.2d 418, 422 (1958) (citations omitted).

¶ 9. Article XI, Section 3 of the Bylaws provides that “[a]n amendment to change any of the following would be considered as material: ... (x) Leasing of Residence except as set forth in Section 1 of Article XI.... ” Reading this language in the ordinary sense, it is apparent that the Bylaws consider changes to the leasing of residences to be a material change, and therefore, those material changes must be made by amendment. This same section also states that “no amendments of a material nature shall be made without the consent of fifty-one percent (51%) of the holders of a recorded first mortgage[.]”

¶ 10. Because ’ the Bylaws state that changes to the leasing of residences need to be made by amendment, it is clear that these changes could not be made by the Board through passing the Resolution. While the Board has the power to enact rules and regulations, those rules cannot involve rights that “may be exercised only by or are reserved only-to the Members.” We find that prohibiting the leasing of residences would be considered an amendment and not a rule. Because the right to amend the Declaration is “reserved only to the Members,” the Board did not have authority to enact the Resolution; therefore, the Resolution is void.

¶11. THE JUDGMENT OF THE MADISON COUNTY CHANCERY COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Ronald BROOKS, Appellant v. Janice FIELDS, Appellee.
    No. 2012-CA-00629-COA.
    Court of Appeals of Mississippi.
    Oct. 15, 2013.
    Rehearing Denied March 25, 2014.

      John Patrick Robbins, Kenneth May-field, Okolona, attorneys for appellant.
    Richard Shane McLaughlin, Tupelo, D. Kirk Tharp, attorneys for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. In this child-support-modification case, Ronald Brooks appeals the judgment that ordered him to pay a lump sum of $15,000 for the purchase of a vehicle for his minor child’s transportation to college and to pay Janice Field’s attorney’s fees. Finding error, we reverse and render the chancellor’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. Brooks and Fields are the biological parents of Canary DashSherrel Brooks, born September 4, 1993. Fields filed a complaint to establish paternity. Thereafter, the parties entered into an agreed order of filiation and support, where Brooks was to pay Fields $175 per month in child support and $1,500 in back child support. Brooks and Fields would each be responsible for one-half of Canary’s healthcare expenses.

¶ 3. Thereafter, Fields filed a complaint for modification of child support. Fields alleged that Brooks was wilfully and continuously in contempt of court and not in compliance with the agreed order by not timely paying child support and one-half of the health-care expenses of Canary. To support the modification, Fields claimed that Canary had increased educational expenses due to extracurricular activities and her future college expenses. At an initial hearing, at which Brooks was not present, the chancellor ordered Brooks to purchase an automobile for Canary at a cost not to exceed $7,500, pay $400 a month in child support, provide health coverage to Canary, and pay seventy-five percent of her college expenses.

¶ 4. Brooks filed a motion to set aside the judgment due to a lack of service of process. After a hearing, the chancellor granted the motion. While this motion was pending, Brooks and Fields entered into an agreed order where Brooks voluntarily agreed to increase his child-support obligation to $375 per month. This resolved the contempt claim. Brooks abided by this order.

¶ 5. After the entry of the agreed order, the parties conducted discovery. Both Brooks and Fields submitted Rule 8.05 financial statements. Brooks’s statement reflected that he was an unemployed, disabled veteran living with his mother. Brooks listed a monthly income of $2,773. Brooks reported that his total monthly expenses were $1,878, and that he had purchased two vehicles for cash at a total value of $9,900. Brooks was debt free, and he and Fields stipulated that his monthly income was to increase once he began receiving a Social Security disability award. Brooks’s financial statement, however, did not list any amount of assets or cash on hand.

¶ 6. According to Fields’s financial statement, she was employed by North Mississippi Medical Center. Her net monthly income was $1,488.50. Fields had total monthly expenses of $2,450.

¶ 7. Canary received approximately $936 per month from her father’s Veteran’s Administration benefits and $678 per month from the Social Security Administration.

¶ 8. The parties submitted stipulations of facts and issues as well as proposed conclusions of law to the chancellor. Thereafter, the chancellor ordered Brooks to pay Fields a lump sum of $15,000, within ninety days, to purchase a vehicle as an educational expense for Canary for the purpose of her transportation to and from college. The chancellor cited Brooks’s recent receipt of a lump-sum payment of $25,000 from the Veteran’s Administration for benefits and his monthly income, which after his monthly expenses would leave him with $900 in disposable income. The chancellor also ruled that the balance of the purchase price for an automobile would be paid by Fields or from Canary’s monthly benefit payments. The chancellor further ruled that Fields would be responsible for all insurance costs, as well as the maintenance and upkeep of the vehicle. In addition, the chancellor ruled that Brooks and Fields would each be responsible for one-half of Canary’s other educational expenses not paid for by scholarships or grants. The chancellor found that Fields had incurred $3,500 in reasonable attorney’s fees and ordered Brooks to reimburse Fields one-half of this total amount at $1,750. The chancellor, however, concluded that Fields was not entitled to a retroactive increase in child support before the signed agreed order.

¶ 9. Brooks subsequently filed a motion to reconsider and amend the judgment, which was denied by the chancery court. Brooks timely filed a notice of appeal.

ANALYSIS

1. Whether the chancellor erred in ordering Brooks to pay a $15,000 lump sum for the purchase of a vehicle.

¶ 10. Brooks argues that it was error for the chancellor to order that Brooks pay the $15,000 lump sum for the purchase of a vehicle for Canary as an educational expense. He argues that the chancellor’s decision to award the payment is not supported by any evidence of Brooks’s ability to pay and fails to consider the statutory child-support guidelines or the monthly Veteran’s Administration benefits Canary already receives.

¶ 11. In domestic-relations cases, this Court -will not disturb a chancellor’s judgment when it is supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. Rolison v. Rolison, 105 So.3d 1136, 1137 (¶ 4) (Miss.Ct.App.2012) (citation omitted). “If the chancellor’s findings are supported by substantial evidence, then we will affirm.” Id. (citation omitted). Questions of law, however, are reviewed de novo. Price v. Price, 22 So.3d 331, 332 (¶ 8) (Miss.Ct.App.2009) (citation omitted).

¶ 12. Mississippi law provides that parents can be required to pay reasonable expenses associated with a child’s college education, where the child shows an aptitude for college. Pass v. Pass, 238 Miss. 449, 455, 118 So.2d 769, 771 (1960). This Court has held that automobile expenses may be awarded as part of college expenses. Striebeck v. Striebeck, 911 So.2d 628, 637-38 (¶¶ 36, 41) (Miss.Ct.App.2005). Specifically, the supreme court has upheld a chancellor’s order for a parent to purchase a vehicle as part of a minor child’s educational expenses, and held that “[t]hough an automobile is not an expense which every parent can provide his/her child, it is not an abuse of a chancellor’s discretion to require a parent to purchase a vehicle where warranted by the circumstances in a particular case.” Chesney v. Chesney, 910 So.2d 1057, 1065 (¶25) (Miss.2005).

¶ 13. The supreme court has also held that it is the responsibility of parents, not the child, to provide funds for education, even if the child has an independent source of funds. Saliba v. Saliba, 753 So.2d 1095, 1099 (¶ 13) (Miss.2000). Payments for college-education expenses, however, do not qualify toward statutory child support, nor will they render child support otherwise within the statutory guidelines to exceed the guideline amount, because “they do not diminish the child’s need for food, clothingU and shelter.” Cossey v. Cossey, 22 So.3d 353, 358 (¶ 20) (Miss.Ct. App.2009) (citations omitted).

¶ 14. Mississippi law, however, limits the parental requirement for payment of educational expenses. The supreme court has determined that a child, if the father is financially able, is entitled to attend college in accord with her family standards. Wray v. Langston, 380 So.2d 1262, 1264 (Miss.1980) (emphasis added). Mississippi Code Annotated section 93-11-65(2) (Supp. 2012) provides “that where the proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children in proportion to the relative financial ability of each.” The supreme court has interpreted this statute to authorize the chancellor to hold parents liable for educational expenses commensurate with the parents’ station in life; and the parents are not obligated to provide such support if it is beyond their station in life. Saliba, 753 So.2d at 1103 (¶ 27) (citation omitted).

¶ 15. Here, the chancellor clearly had the discretion to require both Brooks and Fields to contribute to Canary’s college-education expenses, which included the vehicle purchase, without consideration of the monthly benefits Canary received and in addition to the statutory support. However, we find that the chancellor abused his discretion when he required Brooks to pay a $15,000 lump sum toward the purchase of a vehicle for Canary. The evidence does not support this decision.

¶ 16. Brooks’s financial statement indicated that he had $900 in disposable monthly income. Even though his disposable income was soon to increase based on additional disability benefits he was to receive, he was still a disabled veteran on a fixed income. Indeed, a lump-sum payment of $15,000 for the purchase of a vehicle was hardly commensurate with his station in life. There was simply no evidence that Brooks was financially able to pay the cost of the vehicle and the costs of Canary’s other college expenses. Brooks offered to help purchase a vehicle for Canary at a more reasonable price he could afford. The lump-sum payment of $15,000 was well beyond Brooks’s financial means.

¶ 17. The chancellor relied on the $25,000 lump-sum back payment Brooks received from his Veterans Administration benefits when he ordered Brooks to make the lump-sum payment. There was evidence that Brooks had spent $9,900 of that money for the cash purchase of two vehicles, which would presumably leave him $15,100 in disposable income. However, there was no evidence that Brooks had any of this disposable income or cash on hand at the time the chancellor ordered the payment. Thus, we find that the chancellor’s decision to order Brooks to pay the $15,000 lump sum for the vehicle purchase was not supported by substantial credible evidence in the record. Thus, the chancellor was not within his discretion to award a lump-sump payment of $15,000 to Fields for the purchase of a vehicle for Canary. Therefore, as to this award, we reverse and render the chancellor’s judgment.

2. Whether the chancellor erred by awarding attorney’s fees.

¶ 18. Brooks also argued that the chancellor manifestly erred by ordering Brooks to pay one-half of Fields’s attorney’s fees, in the amount of $1,750, without properly considering the factors in McKee v. McKee, 418 So.2d 764, 767 (Miss.1982), and in the absence of the contempt citation, which Brooks claims was dismissed by the time of the trial. We agree. The chancellor abused his discretion in awarding attorney’s fees to Fields.

¶ 19. In domestic-relations cases, a chancellor may order one party to pay the other’s legal fees based on need. Tynes v. Tynes, 860 So.2d 825, 881 (¶ 22) (Miss.Ct.App.2003) (citation omitted). An award of attorney’s fees is within the discretion of the chancellor, and is reviewed by this Court under an abuse-of-discretion standard. A.M.L. v. J.W.L., 98 So.3d 1001, 1022 (¶ 63) (Miss.2012). Chancellors have broad discretion in determining whether to award attorney’s fees. Lauro v. Lauro, 924 So.2d 584, 591 (¶29) (Miss. Ct.App.2006) (citations omitted). The supreme court has found that attorney’s fees should be awarded where the intentional misconduct of one party causes the other party to needlessly expend money on attorney’s fees. Mabus v. Mabus, 910 So.2d 486, 489 (¶ 8) (Miss.2005) (citation omitted).

¶ 20. In McKee, the supreme court outlined the factors to determine the reasonableness of an award of attorney’s fees:

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

McKee, 418 So.2d at 767. Therefore, to award attorney’s fees, the chancellor must consider the reasonableness of the attorney’s fees and the amount of the fees that were paid to remedy the opposing party’s intentional misconduct. See A & L Inc. v. Grantham, 747 So.2d 832, 845 (¶ 61) (Miss. 1999). Failure to do so would constitute manifest error and warrant reversal of an award of attorney’s fees. Id. (citing Selman v. Selman, 722 So.2d 547, 554 (¶ 29) (Miss.1998)).

¶ 21. Here, based on the record before us, we find that the chancellor abused his discretion in awarding attorney’s fees to Fields. The chancellor did not find any intentional misconduct on the part of the Brooks that would support an award of attorney’s fees. Instead, the chancellor cited the fact that Fields had to file a lawsuit to get an increase in child support for Canary’s educational expenses, which does not constitute intentional misconduct by Brooks. Further, there was insufficient evidence in the record to demonstrate that any of the factors of the McKee analysis were met. And the chancellor just awarded Fields one-half of her attorney’s fees -without stipulating specifically how much of her fees were caused by Brooks’s intentional misconduct.

¶ 22. We recognize that the chancellor is allowed to award attorney’s fees for a modification action if the party requesting fees is unable to pay. A.M.L, 98 So.3d at 1022-23 (¶ 64) (citation omitted). However, Fields did not prove her inability to pay her attorney’s fees. Her attorney’s fees were included as a one-time expense in her financial statement. The record, which also includes Fields’s stipulation of facts, is not clear on whether she paid the attorney’s fees as part of her past expenses. Because the record does not provide adequate support for Fields’s inability to pay her attorney’s fees, the chancellor abused his discretion in awarding the fees. Therefore, we reverse and render a decision in favor of Brooks as to this issue.

¶ 23. THE JUDGMENT OF THE CHANCERY COURT OF LEE COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . UCCR8.05.


author: MAXWELL, J.,

text:
    Patrick DUCKSWORTH a/k/a Patrick D. Ducksworth, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01643-COA.
    Court of Appeals of Mississippi.
    Nov. 5, 2013.
    Rehearing Denied March 25, 2014.

      Patrick Ducksworth, appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before LEE, C.J., MAXWELL and FAIR, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Patrick Ducksworth seeks post-conviction relief (PCR) from his 2001 guilty pleas to five counts of armed robbery. He argues his pleas were involuntary, and that he should have been sentenced under a previously existing sentencing scheme, which provided the possibility of parole eligibility for armed robbers. After review, we find that not only is his post-conviction challenge almost eight years too late, but the plea colloquy shows Ducks-worth’s pleas were knowingly and intelligently made. We also find parole is not available to those convicted of armed robbery “after September 80, 1994.” So Ducksworth is also statutorily precluded from becoming parole eligible. We therefore find the trial judge was correct to deny his PCR motion without a hearing and affirm.

Facts and Procedural History

¶ 2. On October 1, 2001, Ducksworth pled guilty to five counts of armed robbery. He was sentenced to serve thirty years, with ten years suspended, and five years’ probation. This same sentence was imposed on each count. Ducksworth did not timely seek post-conviction review. Instead, he waited almost eleven years, until September 25, 2012, to file a PCR motion. The circuit judge summarily dismissed the motion, finding it was time-barred and without merit. Ducksworth appealed.

Discussion

¶ 3. In considering the denial of a PCR motion, “we review the trial court’s findings of fact for clear error and its determinations of law de novo.” Wilkerson v. State, 89 So.3d 610, 613 (¶ 7) (Miss.Ct.App.2011). A PCR movant bears the burden of showing he is entitled to relief by a preponderance of the evidence. Id. We will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate “a claim procedurally alive substantially showing the denial of a state or federal right.” Id. at 614 (¶ 7).

I. Time-Bar

¶ 4. To challenge a previously entered guilty plea, a PCR motion must be made “within three (3) years after entry of the judgment of conviction.” Miss.Code Ann. § 99-39-5(2) (Supp.2012). Because Ducksworth’s judgment of conviction was entered on October 10, 2001, he had until October 10, 2004 to seek post-conviction review. But he waited until September 25, 2012 to do so — almost eight years after the limitation period ran out. So the circuit court properly dismissed his PCR motion as untimely.

II. Potential Exceptions to Time-Bar

a. Voluntariness of Guilty Plea

¶ 5. We acknowledge that “errors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post-Conviction Collateral Relief Act (UPCCRA) ].” Rowland v. State, 42 So.3d 508, 506 (¶ 9) (Miss.2010). But Ducksworth’s mere suggestions that his pleas were involuntary, and his sentence illegal, are not enough to escape the hard-edged time-bar. See Wicker v. State, 16 So.3d 706, 708 (¶ 5) (Miss.Ct.App.2009) (“the mere assertion of a constitutional right violation” is not enough to trigger exception). Rather, to survive the UP-CCRA’s procedural bars, “[t]here must at least appear to be some basis for the truth of the claim” of a fundamental-constitutional-rights violation. Stovall v. State, 873 So.2d 1056, 1058 (¶7) (Miss.Ct.App.2004).

¶ 6. We find Ducksworth’s various assertions in his PCR motion are just that— mere assertions. His plea colloquy shows that the judge thoroughly advised him of the various constitutional rights he was waiving by pleading guilty, and that his plea was knowingly and intelligently entered. See Dockery v. State, 96 So.3d 759, 763 (¶ 17) (Miss.Ct.App.2012) (noting that where a judge advises a defendant of his rights, the nature of the charges, and the consequences of the plea, a guilty plea is deemed voluntarily and intelligently given). So his voluntariness claim is not excepted.

b. Armed Robbery Is No Longer a Parole-Eligible Crime

¶ 7. We also find Ducksworth’s parole-eligibility-based illegal-sentence claim runs contrary to Mississippi statutory law. Thus, it too is subject to the time-bar.

¶ 8. Ducksworth is incorrect that his sentence should have included “the possibility of parole” or that he should have been sentenced under a different subsection of our code. The judge applied Mississippi Code Annotated section 47-7-3(l)(d)(ii) (Rev.2011) — the correct sentencing option under Ducksworth’s circumstances. This subsection expresses that “[n]o person shall be eligible for parole who shall, on or after October 1, 1994, be convicted of robbery ... through the display of a firearm” or “through the display of a deadly weapon[.]” Id. (emphasis added). While Ducksworth argues his five armed-robbery convictions required sentences under section 47-7-3(1)(d)(i), our code is explicit that “paragraph (d)(i) shall not apply to persons convicted after September 30, 1994 [.]” (emphasis added).

¶ 9. Because Ducksworth pleaded guilty to armed robbery in October 2001, section 47-7-3(1)(d)(i) was not available. See also Ross v. State, 87 So.3d 484, 486-87 (¶¶ 8-9) (Miss.Ct.App.2011) (holding that a defendant convicted of armed robbery after September 30, 1994 could not be sentenced under section 47 — 7—3 (1) (d) (i)); Banks v. State, 37 So.3d 81, 84 (¶ 7) (Miss.Ct.App.2009) (same). Therefore, his time-barred parole-eligibility claim fails.

III. Evidentiary Hearing and Jurisdictional Claims

¶ 10. Ducksworth argues he should have been granted an evidentiary hearing. However, under Mississippi Code Annotated section 99-39-11(2) (Supp. 2012), if it appears from the face of a PCR motion that the movant is not entitled to relief, the circuit court can dismiss that motion without a hearing. See also Edmond v. State, 906 So.2d 798, 802 (¶ 11) (Miss.Ct.App.2004). Since Ducksworth’s claims were clearly barred and without merit, no hearing was necessary.

¶ 11. In his reply brief, Ducksworth argues the circuit court improperly con-eluded it had no jurisdiction to suspend a portion of his sentence. But this is not what the circuit judge held. Rather, the judge emphasized in his order that the “[cjourt has jurisdiction over [mjovant and subject matter[,]” specifically finding the claims time-barred and without merit. Thus, Ducksworths’ jurisdictional argument is also lacking.

¶ 12. Finding Ducksworth’s post-conviction claims are not excepted from the time-bar, we affirm.

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

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

      . Miss.Code Ann. § 47 — 7—3(l)(d)(i) (Rev. 2011).

      . Section 47-7-3(l)(h) was held unconstitutional as applied by Parker v. State, 119 So.3d 987, 998-1000 (¶¶ 26-29) (Miss.2013).


text:
    Milford IVEY a/k/a Charles Milford Ivey, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01972-COA.
    Court of Appeals of Mississippi.
    Nov. 12, 2013.
    Rehearing Denied March 25, 2014.

      Milford Ivey, appellant, pro se.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before LEE, C.J., MAXWELL and FAIR, JJ.
   LEE, C.J.,

for the Court:

¶ 1. Milford Ivey pleaded guilty to two counts of fondling and one count of sexual battery. After a sentencing hearing, the Tishomingo County Circuit Court trial judge sentenced Ivey to fifteen years on one fondling count and twenty years, with five years suspended, on the sexual-battery count. The trial judge ordered the sentences on these two counts to run concurrently. On the other fondling count, the trial judge sentenced Ivey to fifteen years, but suspended the entire sentence.

¶ 2. Ivey timely filed a motion for post-conviction relief (PCR), raising several issues as follows: (1) he was subjected to double jeopardy; (2) his guilty plea was involuntary; (3) evidence was fabricated; and (4) his sentence exceeded his life expectancy. The trial judge denied Ivey’s PCR motion.

¶ 3. Ivey now appeals, asserting the following issues: (1) he was subjected to double jeopardy; (2) his sentence exceeded his life expectancy; (3) his guilty plea was involuntary; and (4) he was innocent.

STANDARD OF REVIEW

¶ 4. When reviewing a trial court’s denial or dismissal of a PCR motion, we will only disturb the trial court’s factual findings if they are clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review. Hughes v. State, 106 So.3d 836, 838 (¶ 4) (Miss.Ct.App.2012).

DISCUSSION

I. DOUBLE JEOPARDY

¶5. In his first issue on appeal, Ivey argues that his constitutional right against double jeopardy was violated because one of the fondling counts and the sexual-battery count stem from the same incident. When addressing a double-jeopardy claim, this Court applies the “same elements” test laid out in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Boyd v. State, 977 So.2d 329, 334 (¶ 16) (Miss.2008). Under this test, “even though a defendant may be charged with violation of two separate statutes, we look to see whether ‘each statutory provision requires proof of a fact which the other does not.’ ” Id. (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. 180). For a conviction to withstand the “same elements” test, each offense must “con-taint] an element not contained in the other.” Id.

¶ 6. Count I of the indictment charges Ivey with fondling a minor child in July 2006, while Count II of the same indictment charges Ivey with sexual battery of this same child in May 2006. These crimes have different elements and arose on different dates. Under Mississippi Code Annotated section 97-5-23(1) (Rev.2006), fondling occurs when (1) a person above eighteen years old (2) handles, touches, or rubs (3) a child under the age of sixteen years old (4) for the purpose of gratifying lust or indulging in depraved licentious sexual desires. Sexual battery is defined by Mississippi Code Annotated section 97 — 3—95(l)(d) (Rev.2006) as “sexual penetration with ... [a] child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.”

¶ 7. Under the “same elements” test, each count must contain an element not contained in the other. Attempted sexual battery does not contain the element of gratification of lust. Furthermore, fondling does not require the element of penetration. Therefore, this issue is without merit.

II. ILLEGAL SENTENCE

¶ 8. Ivey next contends his sentence exceeded his life expectancy; thus, he received an illegal sentence. Ivey is under the impression he was to serve a total of thirty years in the custody of the Mississippi Department of Corrections (MDOC). However, his sentences in reality totaled fifteen years. During Ivey’s sentencing hearing, the trial judge noted he consulted an actuarial table in determining Ivey’s sentence. According to the trial judge, Ivey was sixty-six years old at the time of sentencing, and his life expectancy was 18.7 years. Ivey was also given credit for time served, which totaled almost two years. This issue is without merit.

III. INVOLUNTARY GUILTY PLEA

¶ 9. Ivey claims he was under duress at the time he pleaded guilty; thus, his plea was involuntary. Ivey states he needed medical treatment and knew MDOC could provide him with treatment. However, the transcript of Ivey’s plea colloquy contradicts his claims. A guilty plea meets the requisite voluntary standard where “the defendant is advised concerning the nature of the charge against him and the consequences of the plea”; specifically, “that his guilty plea waives multiple constitutional rights.” Hill v. State, 60 So.3d 824, 828 (¶ 11) (Miss.Ct.App.2011) (citations omitted). The burden is on Ivey “to show his plea was not voluntary.” Id.

¶ 10. During Ivey’s guilty-plea hearing, the trial court advised him of the charges against him, the potential sentence, and the constitutional rights he was waiving by pleading guilty. Ivey stated that he understood the rights he was waiving by pleading guilty. The State offered the facts it intended to prove if the ease went to trial, and Ivey stated that he agreed with those facts. Ivey admitted under oath that he was guilty of all three crimes.

¶ 11. The record is clear that Ivey was advised concerning the nature of the charge against him and the consequences of the plea, and he stated that he understood both. The Mississippi Supreme Court has held that “[s]olemn declarations in open court carry a strong presumption of verity.” Mowdy v. State, 688 So.2d 738, 743 (Miss.1994) (citations omitted). Also, Ivey fails to offer any proof that his plea was not voluntary. As a result, we find that Ivey’s guilty plea was voluntary. This issue is without merit.

IV. ACTUAL INNOCENCE

¶ 12. Lastly, Ivey contends he was innocent of the crimes charged. However, since Ivey stated under oath that he was guilty of the crimes charged and has presented no evidence to the contrary other than vague assertions, we find no merit to this issue.

¶ 13. THE JUDGMENT OF THE TISHOMINGO COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TISHOM-INGO COUNTY.

GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., AND MAXWELL, J., CONCUR IN PART AND IN THE RESULT.

      . We note the other fondling count to which Ivey pleaded guilty involved a different victim.


text:
    ACE PIPE CLEANING, INC., Appellant v. HEMPHILL CONSTRUCTION COMPANY, INC. and Federal Insurance Company, Appellees.
    No. 2012-CA-00550-COA.
    Court of Appeals of Mississippi.
    Jan. 7, 2014.

      C. Dale Shearer, James Dennis Boone, attorneys for appellant.
    David W. Mockbee, Judson Roy Jones, Jackson, attorneys for appellees.
   GRIFFIS, P.J.,

for the Court:

MODIFIED OPINION ON MOTION FOR REHEARING

¶ 1. This case is before the Court on a motion for rehearing. The motion for rehearing is granted. The original opinion is withdrawn and substituted with this opinion.

¶ 2. Ace Pipe Cleaning Inc. commenced this action for payment for services provided on a public construction project. The circuit court granted summary judgment in favor of the general contractor and the bonding company and found that the contract was void and unenforceable, under Mississippi Code Annotated section 31 — 3— 15 (Rev.2010), because Ace did not have a certificate of responsibility. In this appeal, Ace argues that the circuit court was in error to grant the summary judgment based on section 31-3-15, to not allow Ace’s equitable claim for quantum merit, and to allow the surety the same rights as the general contractor.

¶ 3. After the original opinion was issued, the Mississippi Supreme Court decided Ground Control, LLC v. Ccupsco Industries Inc., 120 So.3d 365, 371 (¶ 13) (Miss.2013). The court held that a subcontractor may recover on a quantum meruit theory even though the underlying contract is void because the sub-contractor failed to obtain a certificate of responsibility. Accordingly, finding reversible error, we affirm in part and reverse and remand in part for further proceedings consistent with this opinion.

FACTS

¶ 4. West Rankin Utility Authority awarded a public contract to Hemphill Construction Company Inc. to install 30,-000 feet of sewer pipe. The project was divided into six parts: (1) clean segments of the sewer main; (2) control flow in segments of the sewer main; (3) perform point repairs as directed; (4) install slip lining in segments of the sewer main; (5) rehabilitate manholes; and (6) provide a television inspection of the rehabilitated sewer and manholes.

¶ 5. On October 31, 2008, Hemphill and Ace entered a subcontract. Ace agreed to perform a portion of the work on the project in exchange for the payment of $464,718.50. Ace was to clean the pipes and perform the television inspection of the pipe after it was cleaned. Ace did not have a certificate of responsibility when it submitted its bid or when it entered into the subcontract.

¶ 6. Ace began work on the project on or about November 3, 2008. On December 31, 2009, Ace stopped work due to Hemphill’s failure to pay.

¶ 7. In the complaint, Ace asserted claims against Hemphill for breach of contract, for failure to pay Ace $266,312.18 under the parties’ subcontract, and for quantum meruit, seeking $266,312.18 for the reasonable value of services Ace had provided to the project for which it had not been compensated. The complaint also asserted a claim against Federal Insurance Company on the payment bond that it issued on the project, due to Hemphill’s failure to pay Ace for services rendered pursuant to the subcontract.

¶ 8. On September 8, 2011, Hemphill and Federal filed a motion to dismiss or, alternatively, for summary judgment. They argued that Ace had violated Mississippi Code Annotated section 31-3-15 because it did not obtain a certificate of responsibility from the Mississippi State Board of Contractors. As a result, they argued that the subcontract was void, and the statute also barred Ace’s quantum meruit claim. They also argued that the payment-bond claim failed because a surety holds the same rights and defenses as the contractors they insure.

¶ 9. Ace responded that the subcontract was not void because the pipe-cleaning work did not qualify Ace as a contractor and, as a result, Ace did not need a certificate under section 31-3-15. Ace also argued that Hemphill knew that Ace did not have a certificate and did not raise the issue until after Hemphill accepted the benefits of Ace’s services. Ace also argued that section 31-3-15 did not foreclose its equitable claim for quantum meruit. Finally, Ace claimed that Federal was not entitled to summary judgment for the same reasons Hemphill was not.

¶ 10. On March 1, 2012, the circuit court entered an order that granted Hemphill and Federal summary judgment. The circuit court held that Ace was required to have a certificate of responsibility and, because it did not, the subcontract was void. The circuit court also held the quantum meruit claim was barred by section 31-3-15. The circuit court concluded that Ace’s claim against Federal was invalid because its claim against Hemphill was invalid. It is from this judgment that Ace now appeals.

STANDARD OF REVIEW

¶ 11. When this Court reviews a “grant of summary judgment, [we] employ[ ] a de novo standard of review.” United Plumbing & Heating Co. v. AmSouth Bank, 30 So.3d 343, 345 (¶4) (Miss.Ct.App.2009). Summary judgment is appropriate “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 judgment as a matter of law.” M.R.C.P. 56(c).

¶ 12. We consider “all of the evidence before the [trial] court in the light most favorable to the non-moving party.” United Plumbing, 30 So.3d at 345 (¶ 4). The party that opposes the motion “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in Rule 56 rule, must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). Summary judgment must be entered if the non-movant does not sufficiently show “the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” United Plumbing, 30 So.3d at 345 (¶ 5) (quoting Galloway v. Travelers Ins. Co., 515 So.2d 678, 683 (Miss.1987)).

ANALYSIS

I. Whether the subcontract was void under section 31-3-15.

¶ 13. Mississippi Code Annotated section 31-3-15 provides:

No contract for public or private projects shall be issued or awarded to any contractor who did not have a current certificate of responsibility issued by [the State Board of Public Contractors] at the time of the submission of the bid, or a similar certificate issued by a similar board of another state which recognizes certificates issued by said board. Any contract issued or awarded in violation of this section shall be null and void.

(Emphasis added).

¶ 14. Here, the question is whether Ace is to be considered a “contractor” that was required to have a “current certificate of responsibility.” Mississippi Code Annotated section 31-3-1 (Rev.2010) defines a contractor as “[a]ny person contracting or undertaking as prime contractor, subcontractor or sub-subcontractor of any tier to do any erection, building, construction, reconstruction, repair, maintenance or related work on any public or private project....”

¶ 15. Ace argues that it is not required to have a certificate of responsibility under the plain language of the statute. Ace claims that its work under the subcontract was limited to pipe cleaning, and this is not identified in the definition of “contractor” under section 31-8-1.

¶ 16. Hemphill claims that Ace was required to have a certificate of responsibility. Hemphill argues that the State Board of Public Contractors “shall have the power and responsibility to classify the kind or kinds of works or projects that a contractor is qualified and entitled to perform under the certificate of responsibility issued to him. Such classification shall be specified in the certificate of responsibility.” Miss.Code Ann. § 31-3-13(g) (Rev. 2010).

¶ 17. The Board, pursuant to this authority, issued the following rules and regulations:

12. The Board will classify each applicant and issue a Certificate of Responsibility for the type or types of contracts on which he may bid on the following basis:
A. The applicant will not be classified or permitted to bid on or perform a type or types of work not included in his request.
B. The applicant shall state on the application the classification of work he desires to perform and contract, such classification to be selected and determined from the following list of major classifications:
(1) Building Construction
(2) Highway, Street and Bridge Construction
(3) Heavy Construction
(4) Municipal and Public Works Construction
(5) Electrical Work
(6) Mechanical Work
(7) SPECIALTY — A contractor performing work other than in the above major classifications must qualify as a specialty contractor.

Mississippi State Board of Contractors Statement of Experience Personnel and Equipment (Emphasis added).

¶ 18. Hemphill makes three arguments. First, Hemphill claims that Ace could have applied for a certificate of responsibility under the classifications of either “Municipal and Public Works Construction” or “specialty contractor.” Second, Hemphill argues that, in addition to the pipe-cleaning work, Ace performed a closed-circuit-television inspection, i.e., “T.V. inspection,” of the sewer lines. Hemphill contends that the Board of Contractors specifically lists “T.V. [I]nspection of Sewer Lines & Rehabilitation” as a specialty classification. Third, Hemphill argues that the owner, West Rankin Utility Authority, required that all contractors submitting a proposal on the project possess a current certificate of responsibility with the classification for the type of work they contracted to perform. The project’s “Contract Documents and Specifications,” which were incorporated into the subcontract, provided:

All Proposals submitted in excess of $50,000 shall contain[,] on the outside envelope of such bid, the Contractor’s current Certificate of Responsibility Number issued by the Mississippi [S]tate Board of Public Contractors. Prior to filing Proposals on public projects (in excess of $50,000), the prospective Bidder must obtain a Certificate of Responsibility from the Mississippi State Board of Public Contractors establishing his classification as to the value and type of construction on which he is authorized to bid.

¶ 19. We reject Ace’s argument that the plain language of section 31-3-1 does not require Ace to have a certificate of responsibility. Indeed, cleaning is not part of the definition of contractor under section 31-3-1. However, the statute defines tasks that are covered in general and broad categories, i.e., “any erection, building, construction, reconstruction, repair, maintenance or related work on any public ... project.” Miss.Code Ann. § 31-3-1. We find that the task of pipe cleaning could be encompassed under one of the listed tasks, i.e., “reconstruction, repair, maintenance or related work.” Id.

¶ 20. There are other authorities that provide guidance to determine whether pipe cleaning services, similar to those performed by Ace, were beyond the scope of section 31-3-15.

¶ 21. In Clancy’s Lawn Care & Landscaping, Inc. v. Mississippi State Board of Contractors, 707 So.2d 1080, 1081-82 (¶¶ 4-7) (Miss.1998), the Board considered whether “pruning, mulching, weeding, fertilizing, insecticide and fungicide treatment, plant replacement, mowing, trimming, and litter removal” required a certificate of responsibility. The Board concluded that if fifty percent of the total cost of the project constitutes a job that does not require a certificate of responsibility, then a certificate of responsibility is not needed. Id. at 1082 (¶ 7). The supreme court said that the Board had the authority to decide “that mowing and/or litter removal contracts do not require a certificate of responsibility.” Id. at 1085 (¶19).

¶ 22. In Wastewater Plant Service Co. v. Harrison County Utility Authority, 28 So.3d 686, 693 (¶ 27) (Miss.Ct.App.2010), this Court considered what types of activities required a certificate of responsibility. This Court held that a certificate of responsibility was not required to manage and operate a wastewater facility and interceptor system. Id. We noted that the maintenance of the facility was not the major component of the project. Id. Also, we concluded that the contract was not for an activity that would normally require a certificate of responsibility like building or constructing. Id.

¶ 23. The Attorney General has issued several opinions on this very issue. The Attorney General has concluded “that maintenance of the beach as described is analogous to janitorial work in a building and does not require a certificate of responsibility.” Miss. Att’y Gen. Op., 2001-0663, 2001 WL 1513805, Meadows (Oct. 26, 2001). The Attorney General has also concluded that the removal of damaged limbs from trees on public property does not meet the definition of a public project. Miss. Att’y Gen. Op., 1999-0185, 1999 WL 325652, Bowman (Apr. 30, 1999). Thus, a tree surgeon that removes those limbs is not considered a contractor and does not need a certificate of responsibility. Id. Finally, the Attorney General has opined that a municipality need not comply with public-construction statutes when it enters into a contract to operate or maintain a water system, but must abide by the public-construction laws if it extends or makes capital improvements. Miss. Att’y Gen. Op., 2000-0673, 2000 WL 1899949, Snyder (Nov. 27, 2000).

¶ 24. We note that Ace’s work under the subcontract included the TV inspection of the sewer lines. Hemphill correctly argues that the Board specifically lists “T.V. inspection of Sewer Lines & Rehabilitation” as a specialty classification. For this portion of the work, it may not be argued that a certificate of responsibility was required. However, approximately eighty-one percent of the total subcontract cost was for pipe-cleaning services, not TV inspection. Because fifty percent of the total cost of the project constitutes a job that does not require a certificate of responsibility (i.e., TV inspection), a certificate of responsibility is not needed. Clancy’s Lawn Care, 707 So.2d at 1082, 1085 (¶¶ 7, 19). As a result, this case will be decided on whether the pipe-cleaning services required a certificate of responsibility.

¶25. The purpose of the subcontract was to clean the sewer pipes to prepare for the slip-lining project. This work was not performed to maintain or operate the sewer lines. Instead, the pipe cleaning was a necessary part of the “reconstruction, repair, maintenance or related work on [the] public” project. Miss.Code Ann. § 31-3-1. For this reason, we conclude that Ace was required to have a certificate of responsibility. As a result, consistent with our decision in United Plumbing, 30 So.3d at 347 (¶ 11), we must find that the subcontract between Ace and Hemphill was void because Ace did not have the required certificate of responsibility. As a result, any obligations under the contract, including payment, were also void. Id. For these reasons, we find that the circuit court was not in error in granting summary judgment on Ace’s breach-of-contract claim.

II. Whether Hemphill and Federal are estopped from arguing the subcontract was void.

¶26. Next, Ace argues that Hemphill cannot declare the contract void where it had full knowledge of Ace’s alleged non-compliance, but still accepted the benefits of Ace’s services. Ace cites authority from other states that have held that a party cannot assert a contractor’s lack of licensing as a defense to a breach-of-contract claim if the party knew full well the contractor was unlicensed. See, e.g., Linsenmeyer v. Jackson, 2 Ariz.App. 575, 410 P.2d 693, 696 (1966); Kirkendall v. Heckinger, 105 Mich.App. 621, 307 N.W.2d 699, 703 (1981); Day v. W. Coast Holdings, Inc., 101 Nev. 260, 699 P.2d 1067, 1071 (1985).

¶ 27. Ace claims that Mississippi courts have yet to announce whether a party can be equitably barred from asserting a contract is void pursuant to section 31-3-15. The Mississippi Supreme Court has held:

[Wjhere one having the right to accept or reject a transaction takes and retains benefits thereunder, he ratifies the transaction, is bound by it, and cannot avoid its obligation or effect by taking a position inconsistent therewith. A party cannot claim benefits under a transaction or instrument and at the same time repudiate its obligations.

Wood Naval Stores Export Ass’n v. Latimer, 220 Miss. 652, 664, 71 So.2d 425, 430 (1954).

¶ 28. Here, the subcontract was void. Hemphill did not have the right to accept or reject the transaction, because the subcontract was void and unlawful under the statute. As such, the doctrine of quasi-estoppel does not apply. Accordingly, we find that the circuit court was not in error in granting summary judgment and not allowing Ace’s claims to proceed on estop-pel grounds.

III. Whether Ace has a valid claim for quantum meruit.

¶ 29. Ace also asserted a claim for quantum meruit. Quantum meruit is “a contract remedy which may be premised either on express or ‘implied’ contract, and a prerequisite to establishing grounds for quantum meruit recovery is [the] claimant’s reasonable expectation of compensation.” In re Estate of Fitzner, 881 So.2d 164, 173 (¶25) (Miss.2003) (citations omitted). The elements are:

(1) valuable services were rendered or materials furnished; (2) for the person sought to be charged; (3) which services and materials were accepted by the person sought to be charged, used and enjoyed by him; and (4) under such circumstances as reasonably notified [the] person sought to be charged that [the] plaintiff, in performing such services, was expected to be paid by [the] person sought to be charged.

Id. at 173-74 (¶ 25) (citation omitted). Quantum meruit:

applies to situations where there is no legal contract but where the person sought to be charged is in possession of money or property which in good conscience and justice he should not retain but should deliver to another, the courts imposing a duty to refund the money or the use value of the property to the person to whom in good conscience it ought to belong.

Id. at 174 (¶ 25) (internal citations omitted).

¶ 30. In Ground Control, the supreme court found that public policy did not support the denial of recovery in quantum meruit when a subcontractor performed a valuable service under a contract that was later found to be void because the subcontractor failed to obtain a certificate of responsibility, required by Mississippi Code Annotated section 31-3-15. Ground Control, 120 So.3d at 368-370 (¶¶ 8-12). The court reasoned the public policy behind requiring a certificate of responsibility was to protect the public from improper construction, and this public policy was adequately protected by the statute’s provisions for fines and penalties. Id. at 368 (¶8).

¶ 31. In Ground Control, neither party obtained a certificate of responsibility. Id. at 368 (¶ 9). With both of the parties guilty of “willful misconduct” in contracting, the court reasoned it was inequitable to penalize only one party by not allowing relief under quantum meruit. Id. at 369 (¶ 11). This case is factually different in that Hemphill had a certificate of responsibility. Although Hemphill cannot be guilty of any “willful misconduct,” Ace argues that it performed in good faith under the void contract and conveyed performance worth $266,312.18 to Hemphill.

¶ 32. Although we have found that Hemphill had no right to accept the transaction and subcontract, the supreme court reasoned in Ground Control that the public policy of section 31-3-15 is protected by its provisions for fines and penalties. Ground Control, 120 So.3d at 368 (¶ 8). Where the subject matter of the contract is perfectly legal but it is void for a reason having nothing to do with “moral turpitude,” such a contract is fundamentally different from cases that involve illegal or immoral contracts that violate penal statutes, such as those for illegal drugs or gambling. Id. at 369 (¶¶ 10-11). Here, there is nothing in the record that suggests Ace sought any gain by its failure to secure a certificate of responsibility. In fact, Ace argued that Hemphill should have told it of the need for a certificate of responsibility.

¶ 33. Therefore, as in Ground Control, a subcontractor without a certificate of responsibility may recover under a theory of quantum meruit. Accordingly, we reverse the summary judgment entered and remand this case for consideration of Ace’s quantum meruit claim. We do not address the validity of any defense Hemphill asserted, including, but not limited to, its contention that Ace’s performance under the void contract was deficient or that the conveyed monetary benefit to Hemphill was less than Ace claimed.

IV. Whether it was error to grant summary judgment in favor of Federal.

¶ 34. The Mississippi Supreme Court has held that “[t]he surety’s liability and obligation are the same as the principal’s, and the surety is liable only if the principal is liable.” Fid. & Guar. Ins. Co. v. Blount, 63 So.3d 453, 460 (¶ 29) (Miss.2011). Our holding today is only that Ace may rely on the theory of quantum meruit to recover the value of benefit it conveyed to Hemp-hill when performing under the void contract. Upon remand, Federal, like Hemp-hill, may rely upon any other defense in law or fact that it has pled and can establish through proof.

¶ 35. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT IS AFFIRMED IN PART, AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPEL-LEES.

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


author: ROBERTS, J.,

text:
    Candice FULGHAM, Appellant v. AAA COOPER TRANSPORTATION COMPANY, Appellee.
    No. 2013-CA-00331-COA.
    Court of Appeals of Mississippi.
    March 11, 2014.

      Ronald D. Michael, Booneville, attorney for appellant.
    Douglas Bagwell, Gulfport, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and FAIR, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Candice Fulgham sued AAA Cooper Transportation Company after she was involved in a traffic accident. Fulgham never named the driver of AAA Cooper’s eighteen-wheeler truck as a defendant. AAA Cooper filed a motion for summary judgment and argued that because the statute of limitations had expired and Fulgham had neither named the driver as a defendant nor served him with process, Fulgham was precluded from recovery against AAA Cooper. The Lee County Circuit Court agreed, and granted AAA Cooper’s motion for summary judgment. Fulgham appeals. We find that, subject to certain exceptions that do not apply in this case, it is not necessary for a plaintiff to name an employee as a defendant in order to recover under the doctrine of responde-at superior. Accordingly, we reverse the judgment of the circuit court and remand this matter to its trial docket.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 10, 2006, Fulgham was involved in a traffic accident in Saltillo, Mississippi. According to the allegations in her complaint, the driver of an eighteen-wheeler owned by AAA Cooper pulled out in front of a vehicle being driven by Joshua Jeffcoat. Fulgham further alleged that Jeffcoat swerved to avoid the eighteen-wheeler, and collided with her vehicle as a result.

¶ 8. On January 9, 2009, Fulgham sued AAA Cooper, Jeffcoat, and the unnamed driver of AAA Cooper’s eighteen-wheeler. During discovery, AAA Cooper disclosed that Scottie Harrison had been driving the eighteen-wheeler that allegedly caused Jeffcoat to collide with Fulgham. Even so, Fulgham never amended her complaint to name Harrison as a defendant. It follows that Fulgham never served Harrison with process.

¶ 4. On October 15, 2012, AAA Cooper filed a motion for summary judgment. AAA Cooper argued that it should be dismissed as a defendant to Fulgham’s lawsuit because she had never amended her complaint to name Harrison as a defendant, and the statute of limitations against him had expired. AAA Cooper reasoned that because the statute of limitations against Harrison, its employee, had expired, it could not be liable under the doctrine of respondeat superior.

¶ 5. The circuit court did not conduct a court hearing on AAA Cooper’s motion for summary judgment. However, the circuit court cited this Court’s original opinion in Sykes v. Home Health Care Affiliates, Inc., 125 So.Bd 107 (Miss.Ct.App.2013), and agreed that AAA Cooper could not be liable to Fulgham under the doctrine of respondeat superior because the statute of limitations against Harrison had expired. Consequently, on January 22, 2013, the circuit court granted AAA Cooper’s motion for summary judgment and certified the judgment as final. Fulgham appeals.

STANDARD OF REVIEW

¶ 6. An appellate court conducts a de novo review of a trial court’s decision to grant a motion for summary judgment. Kilbullen v. Kansas City S. Ry., 8 So.3d 168, 174 (¶ 14) (Miss.2009). Mississippi Rule of Civil Procedure 56(c) provides that summary judgment “shall be rendered ... 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.” We must review the evidence in the light most favorable to the non-moving party. Kilhullen, 8 So.3d at 174 (¶ 14).

¶ 7. To overcome a motion for summary judgment, the non-moving party “may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing there is a genuine issue for trial.” M.R.C.P. 56(e). The Mississippi Supreme Court has recently held:

[I]n a summary judgment hearing, the burden of producing evidence in support of, or in opposition to, the motion is a function of Mississippi rules regarding the burden of proof at trial on the issues in question. The movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to [a] judgment as a matter of law. The movant bears the burden of production if, at trial, he would bear the burden of proof on the issue raised. In other words, the movant only bears the burden of production where [he] would bear the burden of proof at trial. Furthermore, summary judgment is appropriate when the non-moving party has failed to make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial.

Karpinsky v. Am. Nat’l Ins. Co., 109 So.3d 84, 88-89 (¶ 11) (Miss.2013) (quotations omitted).

ANALYSIS

¶ 8. AAA Cooper relies on this Court’s original decision in Sykes to support its argument that Fulgham’s suit is precluded by the fact that she did not name Harrison as a defendant. In Sykes, this Court initially held that a plaintiffs claim against an employer is precluded where the plaintiff fails to name an employee as a defendant and the statute of limitations has run as to the employee. But upon rehearing, we withdrew our opinion and substituted a modified opinion. Sykes v. Home Health Care Affiliates, Inc., 125 So.3d 107, 108 (¶ 1) (Miss.Ct.App.2013). The circuit court granted AAA Cooper’s motion for summary judgment after we handed down our original opinion, but before we modified our opinion on rehearing. Similarly, AAA Cooper filed its appellate brief before we modified our opinion on rehearing.

¶ 9. In our modified opinion, we noted that “[u]nder the doctrine of respondeat superior, the employer and employee are jointly and severally liable for injury caused by the employee’s negligence.” Id. at 109 (¶ 7) (citing Capital Transp. Co. v. McDuff, 319 So.2d 658, 661 (Miss.1975)). We further noted that “[t]he right of an injured party to sue the employer is a direct or primary right because the claim is distinct and separate from the claim against the employee; therefore, the employee is not a necessary party to an action against an employer.” Id. (emphasis added). Consequently, this Court reversed the trial court’s judgment in Sykes and remanded the matter for further proceedings. Id.

¶ 10. In Sykes, we stated that there are exceptions to the principle that an employee is not a necessary party to an action against an employer. Id. at 109-10 (¶ 8). However, none of those exceptions are present in this case. Although the statute of limitations has expired regarding any claim that Fulgham could raise against Harrison individually, there is no legal preclusion from litigating Harrison’s alleged negligence as it applies to AAA Cooper’s liability under the doctrine of re-spondeat superior. Id. at 110 (¶ 9). There is no merit to AAA Cooper’s argument that it may not be sued unless Harrison is a party to Fulgham’s suit. Accordingly, we reverse the circuit court’s judgment and remand this matter to the circuit court’s active trial docket.

¶ 11. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY.