author: CHANDLER, Justice,

text:
    Jeffrey Wayne YEATMAN a/k/a Jeffrey Yeatman a/k/a Jeff W. Yeatman v. STATE of Mississippi.
    No. 2013-CP-00457-SCT.
    Supreme Court of Mississippi.
    July 24, 2014.
    Jeffrey Wayne Yeatman, appellant, pro se.
    Office of the Attorney General by Barbara Byrd, attorney for appellee.
    Before DICKINSON, P.J., KITCHENS and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. On October 31, 2006, Jeffrey Wayne Yeatman pleaded guilty to one count of simple assault on a law-enforcement officer and two counts of third-offense driving under the influence. Each of the three counts had a separate cause number. The Circuit Court of Oktibbeha County accepted Yeatman’s guilty pleas and sentenced him as follows: for simple assault on a law-enforcement officer in cause number 2006-0161-CR, five years imprisonment and a fine of $5,000 as a habitual offender; for third-offense DUI in cause number 2006-0327-CR, five years imprisonment and a fine of $5,000 as a habitual offender; and for third-offense DUI in cause number 2006-0328-CR, one year imprisonment, four years of post-release supervision, and a fine of $100. All sentences were to run consecutively.

¶ 2. Yeatman filed motions for post-conviction relief from his convictions for simple assault on a law-enforcement officer and third-offense DUI in cause number 2006-0327-CR. The trial court denied post-conviction relief, and the Court of Appeals affirmed. This Court granted Yeat-man’s petition for a writ of certiorari. Yeatman v. State, 90 So.3d 1239, 1243 (Miss.2012). Because, by statute, the fine for simple assault on a law-enforcement officer is a maximum of $1,000, the Court vacated the $5,000 fine imposed on Yeat-man for that crime. Id. at 1244-45. We also remanded the case to the trial court for a determination of whether the criminal information in cause number 2006-0327-CR charged Yeatman as a habitual offender. Id. at 1244. We directed the trial court to vacate the habitual-offender portion of Yeatman’s sentence in that cause if it found that Yeatman had not been charged as a habitual offender in cause number 2006-0327-CR. Id. This appeal concerns the trial court’s decision on remand.

¶ 3. On remand, the trial court held an evidentiary hearing at which Yeatman argued that, because his criminal information in cause number 2006-0327-CR did not charge him as a habitual offender, his habitual-offender sentence should be vacated. The trial court reviewed the transcript of the plea hearing, the criminal informations in causes number 2006-0327-CR and 2006-0328-CR, and Yeatman’s guilty-plea petitions in those cause numbers. The State explained that the criminal information for cause number 2006-0328-CR had the habitual-offender language, but the criminal information for cause number 2006-0327-CR did not. Yeatman’s guilty-plea petitions showed that he had agreed that the State would recommend habitual-offender sentencing in cause number 2006-0328-CR and would recommend a sentence of one year and four years’ post-release supervision in cause number 2006-0327-CR.

¶ 4. The trial court recognized that, in exchange for Yeatman’s guilty pleas to simple assault on a law-enforcement officer and two charges of third-offense DUI, the State had agreed not seek a life sentence for the assault charge under Mississippi Code Section 99-19-83. See Yeatman, 90 So.3d at 1242. The trial court found that, during the sentencing hearing, the cause numbers for the DUI charges inadvertently had been transposed, causing Yeatman to receive a habitual-offender sentence in cause number 2006-0327-CR rather than cause number 2006-0328-CR. The trial court found that, in cause number 2006-0328-CR, Yeatman received the sentence he had bargained for in 2006-0327-CR, and in cause number 2006-0327-CR, he received the sentence he had bargained for in 2006-0328-CR. The trial court concluded that Yeatman had received the benefit of his plea bargain and declined to vacate the habitual-offender portion of Yeatman’s sentence. Instead, the trial court held that “[t]he sentence originally placed in Oktibbeha Criminal Cause Number 2006-0327-CRK is to be instead placed in Oktib-beha Criminal Cause Number 2006-0328-CRK and the sentence placed in Oktibbeha Criminal Cause Number 2006-0328-CRK is to be instead placed in Oktibbeha Criminal Cause Number 2006-0327-CRK, as the cause numbers were inadvertently switched during the guilty plea process.” The trial court also removed the fine given for simple assault on a law-enforcement officer. The trial court directed the district attorney to prepare nunc pro tunc sentencing orders in the three causes, reflecting the corrections.

¶ 5. Yeatman appeals, arguing that, on remand, tbe trial court exceeded this Court’s mandate directing the court to vacate the habitual-offender portion of his sentence if the criminal information in cause number 2006-0327-CR did not charge him as a habitual offender. He argues that, because he did not file a motion for post-conviction relief (PCR) attacking cause number 2006-0328-CR, the trial court lacked authority to alter the sentence in that case. He further argues that the trial court lacked jurisdiction to enter nunc pro tunc sentencing orders after the term of court had expired.

¶ 6. The State argues that the trial court acted within its inherent authority to correct what amounted to a clerical error in the sentencing orders. We agree. Yeatman received the benefit of his plea bargain, because, although the cause numbers were transposed, he received the exact sentences he expected to receive based on the plea petitions. As Yeatman expected, the State did not pursue an amendment to the indictment under Section 99-19-83 for simple assault on a law-enforcement officer, and on the DUI charges, he received five years as a habitual offender on one charge, and one year and four years’ post-release supervision on the other charge. Although the criminal information in cause number 2006-0327-CR did not charge Yeatman as a habitual offender, he was charged as a habitual offender in cause number 2006-0328-CR. Yeatman’s guilty-plea petition in cause number 2006-0328-CR states that the State would recommend a mandatory five-year habitual-offender sentence. Yeatman’s guilty plea petition in cause number 2006-0327-CR states that the State would recommend a sentence of one year to serve and four years on post-release supervision. The record supports the trial court’s finding that Yeatman received the benefit of his plea bargain, although the cause numbers inadvertently were transposed on the sentencing orders.

¶ 7. The Court of Appeals addressed a similar situation in Fields v. State, 840 So.2d 796 (Miss.Ct.App.2003). As in this case, in Fields, the defendant’s two case numbers were switched during the sentencing hearing; the defendant’s sale-of-marijuana sentence of twenty-five years was what he should have received for sale of cocaine, and his sale-of-cocaine sentence of five years was what he should have received for sale of marijuana. Id. at 800. Three years later, the trial court corrected the mistake in amended judgments that reflected the correct cause numbers and correct sentences. Id. The Court of Appeals held that the only reasonable inference to be drawn from the facts was that the trial court originally had intended to sentence Fields to twenty-five years for sale of cocaine and five years for sale of marijuana. Id. The Court of Appeals held that the trial court’s entry of amended sentencing orders was within its inherent authority “to correct clerical errors ... and to make the judgment entry correspond with the judgment rendered.” Id. (quoting Kitchens v. State, 253 Miss. 734, 179 So.2d 13, 14 (1965)). The Court of Appeals rejected the defendant’s argument that the trial court had lacked authority to correct the sentencing orders three years later, stating:

As a general rule, “jurisdiction once acquired is not defeated by subsequent events, even though they are of such a character as would have prevented jurisdiction from attaching in the first instance.” B.G. Bynum v. State, 222 Miss. 632, 76 So.2d 821, 821 (Miss.1955). In addition, “every court of record has inherent power not derived from statute to correct its own judgment rendered at a former term but a reviewing court is without power to substitute a wholly different judgment for that from which an appeal is prosecuted.” Id. In the case of Brown v. Sutton, 158 Miss. 78, 121 So. 835, 837 (1929), the court said: “Every court of record has general authority over its own records. The power of such a court to correct its records so as to make them speak the truth is inherent. The records of a court can be corrected or altered only by the court itself; and another court has no authority to make such corrections, even though it has appellate jurisdiction over the court whose records are sought to be corrected.” “Where it clearly appears that the judgment as entered is not the sentence which the law ought to have pronounced upon the facts as established by the record, the court acts upon the presumption that the error is a clerical misprision rather than a judicial blunder and sets the judgment entry right by an amendment nunc pro tunc.” Morrison & Whitlock v. Stewart, 21 Ill. App. 113 (1886). The circuit court had not lost jurisdiction over this case. In addition to the ability to correct clerical errors, this correction may be done at any time, as well after as during the term. Balch v. Shaw, 61 Mass. 282 (Mass.1851).

Fields, 840 So.2d at 800-01.

¶ 8. Under the above authority, the trial court was within its inherent power to direct the entry of nunc pro tunc sentencing orders to correct what plainly was a clerical error by the court. The trial court retains the inherent authority to correct errors of a purely clerical nature at any time, even outside the term of court. Fields, 840 So.2d at 801. Thus, the trial court had jurisdiction to enter a corrected sentencing order nunc pro tunc in cause number 2006-0328-CR, although Yeatman did not file a motion for PCR from that conviction. Further, no double-jeopardy concerns arose, because Yeatman was not resentenced to a greater term than he originally received. See Harvey v. State, 919 So.2d 282, 285 (Miss.Ct.App.2005) (the correction of a sentencing order to conform to the proceedings did not raise double-jeopardy concerns). The only reasonable inference to be drawn from the facts is that Yeatman received the sentences he bargained for and that the cause numbers inadvertently were transposed on the sentencing orders. We find that the trial court’s direction of the entry of nunc pro tunc sentencing orders was within its inherent authority to correct clerical errors. Therefore, we affirm.

¶ 9. AFFIRMED.

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


source: Caselaw Access Project

author: FAIR, J., for the Court:

license: Public Domain

text:
    Sheldon NATHAN a/k/a Sheldon Orange, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00767-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.
    Rehearing Denied Oct. 22, 2013.
    Certiorari Dismissed July 24, 2014.

      Sheldon Nathan, appellant, pro se.

      Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   FAIR, J., for the Court:

¶ 1. Sheldon Nathan appeals the dismissal of his motion for post-conviction relief in which he asserted his indictment was defective.

¶2. The indictment charging Nathan with forgery and conspiracy to commit forgery was amended on March 19, 2007, to charge him as a habitual offender. On September 11, 2009, Nathan filed a written petition to enter a plea of guilty to the indictment, which was accepted by the trial court that same day, after a plea colloquy. He was sentenced to be incarcerated for five years, consecutively to another five-year, formerly suspended sentence which had been revoked and which he was serving at the time he entered his plea. Nathan was further sentenced to ten years of post-release supervision, two years of reporting supervision and eight years of non-reporting.

¶ 3. Nathan now claims that the indictment to which he pled guilty was defective because it did not include the dates of the judgments in his prior convictions. He also claims that since he was not actually incarcerated for a year or more for either conviction, they were not properly used under the habitual offender statute. Finding that Nathan is not entitled to relief on either of these issues, we affirm the trial court’s judgment.

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) (Supp.2012). 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 the denial of a PCR motion, 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). Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Young, 731 So.2d at 1122 (¶ 9).

DISCUSSION

1. Dates of “Judgment”

¶ 6. In his first assignment of error, Nathan contends the amended indictment failed to adequately charge him as a habitual offender because it only includes the dates of “sentence” and not “judgment” as specified in Uniform Rule of Circuit and County Court Practice 11.03(1). The rule states that indictments “must allege with particularity the nature or description of the offense constituting the previous convictions, the state or federal jurisdiction of any previous conviction, and the date of judgment.”

¶ 7. We agree that Nathan’s indictment fails to fully comply with Rule 11.03, as the date of sentence and the date of judgment are not necessarily the same. See Grim v. State, 102 So.3d 1123, 1127 (¶ 10) (Miss.Ct.App.2010). Nevertheless, Nathan is not entitled to relief. This Court addressed and rejected the same argument in Hills v. State, 101 So.3d 691, 692-93 (¶¶ 5-7) (Miss.Ct.App.2012), and Jones v. State, 86 So.3d 931, 934 (¶¶ 11-12) (Miss.Ct.App.2011). In Hills, 101 So.3d at 693 (¶ 7), we held:

While the indictment did not specifically use the phrase “date of judgment,” it did include the dates Hills pleaded guilty to each prior crime, the nature of the crimes, the cause numbers, the sentencing dates, the length of each sentence, and the location in the minute books where each sentence was recorded. This information was more than sufficient to put Hills on notice of the prior crimes used to charge him as a habitual offender. See Mitchell v. State, 58 So.3d 59, 61 (¶ 10) (Miss.Ct.App.2011). Further, Hills stated under oath that he understood he was pleading guilty as a habitual offender under a plea agreement. He stated that he understood the maximum sentences of the charges against him and the recommended sentences being offered under the plea bargain. This issue is without merit.

¶ 8. Nathan’s indictment presented much of the same information. As amended, it provided with regard to Nathan’s prior convictions:

And the said SHELDON ORANGE (a/ k/a Sheldon Nathan) having been previously convicted [of] False Pretenses in Count 2 in Cause No. CR 2005-504-C(D) in the Circuit Court of DeSoto County, Mississippi, and sentenced on 7/17/2006 to serve a term of fourteen (14) days in the Mississippi Department of Corrections, followed by five (5) years Post Release Supervision;
And the said SHELDON ORANGE (a/ k/a Sheldon Nathan) having been previously convicted of Aggravated Assault in Cause No. 02-05931 in the Criminal Court of Shelby County, Tennessee, and Sentenced on 01/21/2003 to serve a term[ ] of three (3) years in the Tennessee Workhouse and three years probation.

Nathan also admitted to the convictions used as the basis for his habitual offender status, as shown by this exchange during the plea colloquy:

Q. Do you admit regarding both those counts that you’ve been convicted of the underlying felonies which have been admitted as exhibits which establish you as a 99-19-81 habitual offender?
A. Yes, sir.

¶ 9. We conclude that Nathan’s indictment was sufficient “to inform [him] with some measure of certainty as to the nature of the charges brought against him so that he [had] a reasonable opportunity to prepare an effective defense.” Moses v. State, 795 So.2d 569, 571 (¶ 13) (Miss.Ct.App.2001). This issue is without merit.

2. Time Actually Served

¶ 10. Nathan also argues that because he did not serve a full year for each of the two underlying felonies, they could not be used to support his conviction as a habitual offender pursuant Mississippi Code Annotated section 99-19-81 (Rev.2007). However, the fact that there was less than a year of actual incarceration does not affect the sufficiency of the sentences as evidence of habitual offender status. The statute is satisfied where the defendant was twice previously convicted of separate felonies and a sentence of one or more years was pronounced, regardless of subsequent probation or suspension of sentence. Weaver v. State, 497 So.2d 1089, 1096 (Miss.1986); Jackson v. State, 381 So.2d 1040, 1042 (Miss.1980). The same applies to post-release supervision. Fullilove v. State, 101 So.3d 669, 678-79 (¶ 35) (Miss.Ct.App.2012). This issue is without merit.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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


author: FAIR, J., for the Court: CARLTON, J.,

text:
    James LOFTIN, Appellant v. JEFFERSON DAVIS COUNTY SCHOOL DISTRICT, Appellee.
    No. 2013-CA-00041-COA.
    Court of Appeals of Mississippi.
    Feb. 18, 2014.
    Rehearing Denied July 22, 2014.

      Robert M. Logan Jr., Newton, Brian Douglas Mayo, attorneys for appellant.
    Nathaniel Alandas Armistad, John Si-meon Hooks, Ridgeland attorneys for ap-pellee.
    Before GRIFFIS, P.J., ROBERTS and FAIR, JJ.
   FAIR, J., for the Court:

¶ 1. Dr. James Loftin filed a petition in the Chancery Court of Jefferson Davis County seeking to compel the production of public records relating to his employment with the local school district. The chancery court denied the petition. Lof-tin’s notice of appeal was filed months later, from the denial of his motion for reconsideration. But because the motion for reconsideration was filed more than ten days after the entry of the order denying Loftin’s petition, the motion must be viewed as having been brought under Mississippi Rule of Civil Procedure 60(b) for relief from judgment. Because Rule 60 motions are an extraordinary remedy and not a substitute for a timely appeal, we affirm the chancery court’s denial of Lof-tin’s motion to reconsider.

DISCUSSION

¶ 2. Loftin was the principal of Prentiss High School. In February 2012, during his second year, he was informed that the superintendent did not intend to renew his contract. Loftin requested a nonrenewal hearing before the Jefferson Davis County Board of Education, pursuant to the Education Employment Procedures Law (EEPL), Mississippi Code Annotated sections 37-9-101 through -113 (Rev.2013). Loftin also submitted a public records request to the school district for certain documents relating to his employment. The district took the position that it would provide only the documents Loftin was entitled to under the EEPL, in the time frame specified by that law. Numerous documents were eventually provided to Loftin, though there is a dispute as to whether they satisfied the public records request.

¶3. On April 16, 2012, Loftin filed a “Petition to Compel Production of Public Records and to Enjoin Nonrenewal Hearing” in the Chancery Court of Jefferson Davis County. Notwithstanding Loftin’s petition seeking to delay the hearing, the nonrenewal hearing was held on April 27, and the Board voted not to renew his contract. On July 12, the chancery court entered an order finding that Loftin “waived his right to request enforcement of his public records request” because he “allowed the non-renewal hearing ... to proceed and participated therein.” Loftin filed a motion for reconsideration on July 24. The motion was denied October 24 and the notice of appeal followed on November 2.

¶ 4. “A timely-filed notice of appeal is a jurisdictional prerequisite to invoking [appellate] review, and we review jurisdictional matters de novo.” Calvert v. Griggs, 992 So.2d 627, 631 (¶ 9) (Miss.2008). “[T]he time to file a notice of appeal is a jurisdictional issue that cannot be waived by the parties.” Dawson v. Burt Steel Inc., 986 So.2d 1051,1052 (¶ 5) (Miss.Ct.App.2008).

¶ 5. At issue is what effect Lof-tin’s motion for reconsideration had on the timeliness of his notice of appeal. Motions for reconsideration are filed every day in Mississippi, but the Mississippi Rules of Civil Procedure do not specifically provide for them. McBride v. McBride, 110 So.3d 356, 359 (¶ 15) (Miss.Ct.App.2013). This Court recently summarized how they should be treated:

The Mississippi Rules of Civil Procedure provide two avenues to move the trial court to reconsider its judgment. The aggrieved party may (1) file a motion for a new trial or to alter or amend under Rule 59 or (2) file for a relief from a final judgment under Rule 60(b). The timing of the motion to reconsider determines whether it is a Rule 59 or Rule 60(b) motion.
A motion to reconsider filed within ten days of the entry of the judgment falls under Rule 59 and tolls the thirty-day time period to file a notice of appeal until the disposition of the motion. Consequently, a notice of appeal following the denial of a Rule 59 motion to reconsider encompasses both the denial of reconsideration and the underlying judgment.
But a motion to reconsider filed more than ten days after the entry of the judgment falls under Rule 60(b). And a Rule 60(b) motion does not toll the thirty-day time period to file a notice of appeal. So a notice of appeal following the denial of a Rule 60(b) motion to reconsider limits this court’s review to whether reconsideration was properly denied under Rule 60(b). This court has no jurisdiction to consider the merits of the underlying judgment.

Woods v. Victory Mktg. LLC, 111 So.3d 1234, 1236-37 (¶¶ 6-8) (Miss.Ct.App.2013) (citations omitted). The last day for Lof-tin to file his motion for reconsideration under Rule 59 was Monday, July 23, 2012. See M.R.C.P. 6(a). Loftin’s motion, filed on July 24, must be taken under Rule 60(b).

¶ 6. Rule 60(b) provides six bases for relieving a party from a final judgment:

(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.

Loftin’s motion for reconsideration makes none of those arguments. Instead, it simply contends that the petition should not have been dismissed under the facts and the controlling substantive law. Loftin obviously intended the motion to be considered under Rule 59(e), but because it was untimely, that ship has sailed. “An appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review.” Bruce v. Bruce, 587 So.2d 898, 903-04 (Miss.1991). Instead, “Rule 60(b) is for extraordinary circumstances, for matters collateral to the merits, and affords a much narrower range of relief than Rule 59(e).” Id. at 903. “Rule 60(b) motions should not be used to relitigate cases.” S. Healthcare Servs. Inc. v. Lloyd’s of London, 110 So.3d 735, 742 (¶ 16) (Miss.2013). Nor is a Rule 60(b) motion a substitute for a timely appeal. Id. at (¶ 14).

¶ 7. Loftin is not entitled to relief from judgment under Rule 60(b). We therefore affirm the trial court’s judgment denying Loftin’s motion for reconsideration.

¶ 8. THE JUDGMENT OF THE CHANCERY COURT OF JEFFERSON DAVIS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, MAXWELL AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J.

CARLTON, J.,

dissenting:

¶ 9. I respectfully dissent from the majority’s decision to affirm the chancellor’s denial of Loftin’s motion to reconsider.

¶ 10. The chancellor abused his discretion by erroneously finding that Loftin waived his public records request by allowing his nonrenewal hearing to proceed. The record reflects that confusion arose in this case between a discovery response and a response to a public records request. Relevant to our review, the record reflects that the denial of Loftin’s public records request was not consolidated on appeal with the issues related to his nonrenewal of employment, and therefore, this dissent addresses only the chancellor’s denial of the motion to reconsider relative to the denial of Loftin’s public records request. The record is also ambiguous as to whether the school district actually in fact complied with Loftin’s request for specific public records. The chancellor provided that the parties engaged in “informal communication” without specifying if the requested public records were indeed disclosed during those “informal communications,” after acknowledging the school district’s receipt of Loftin’s public records request. See Victor W. Carmody, Kevin T. Stewart & Lance O. Mixon, Mississippi BUI Law and Practice § 15:5, at 494 (2012). The record reflects that Loftin filed a “Petition to Compel Production of Public Records and to Enjoin Nonrenewal Hearing” in response to the superintendent’s decision not to renew Loftin’s contract. In paragraph four of the petition, Loftin averred that he retained counsel who requested access to certain public records of the Jefferson Davis School District, including the following public records: (1) Loftin’s personnel file; (2) all correspondence, notes, and memoranda to and from the superintendent pertaining to Loftin, whether on paper or in electronic format; (3) any and all evaluations of Loftin; (4) any and all plans or letters of improvement from the superintendent to Loftin; and (5) all communications from the superintendent to the board of trustees or from any Board member to the superintendent or any other school administrator pertaining to Lof-tin.

¶ 11. Loftin’s petition also alleged that the school district responded that it had produced Loftin’s personnel file and that, within fourteen days of the nonrenewal hearing, the school district would be forwarding copies of all information that it intended to present at the hearing. As evidence of this communication from the school district, Loftin attached a letter from the school district as Exhibit B to the petition. The school district’s response failed to address the itemized list of documents that Loftin requested pursuant to Mississippi’s public records law. The school district’s response instead appears to address its disclosure of discovery information relative to the nonrenewal hearing. The school district’s response addressed the evidence and information that the school district intended to present at that nonrenewal hearing. The public records access request is not a request for discovery for an adversarial proceeding, but rather constitutes a distinct and separate request authorized by specific statutes applicable to public records. A public records request allows for the request of public documents not relevant to discovery, or for public documents different or broader than the scope of such discovery. See Miss. Att’y Gen. Op., 2004-0039, 2004 WL 555120, Ringer (Feb. 13, 2004); see also 1 Jeffrey Jackson and Mary Miller, Encyclopedia of Mississippi Law § 2:57, at 80 (2001). As acknowledged in Mississippi DUI Law & Practice, when preparing for trial or investigating a case, the open records act is another means of obtaining critical information. See Carmody, § 15:5, at 494; see also Miss.Code Ann. § 25-61-2; Harrison Cnty. Dev. Comm’n v. Kinney, 920 So.2d 497, 502-03 (¶¶ 10-11) (Miss.Ct.App.2006); Miss. Att’y Gen. Op., 98-0250, 1998 WL 304414, Chamberlin (May 1,1998).

¶ 12. The school district’s response indicates its disclosure of Loftin’s personnel record. However, the disclosure lacked any itemization of what documents were contained in that disclosed file and whether these documents satisfied the specified documents requested pursuant to Loftin’s public records request. We are therefore left without an answer as to whether the school district complied with Loftin’s request for the specified public records or whether Loftin’s request was denied in whole or part due to an exemption or nonexistence of the records. The school district’s response to Loftin’s request argued that Loftin’s request for public records should have been denied because he was attempting to use the Public Records Act as a means of civil discovery. However, public records are considered to be public property and open for inspection unless an exemption or privilege applies, in accordance with Mississippi Code Annotated section 25-61-5 (Rev.2010). Neither a pending adverse administrative proceeding nor a criminal proceeding bars a public records request under Mississippi’s statutory law. See Bd. of Trs. of State Insts. of Higher Learning v. Van Slyke, 510 So.2d 490, 492 (Miss.1987). Moreover, neither a respondent in an administrative hearing, nor a defendant in a criminal prosecution, is prohibited from submitting a public records request that seeks access to documents not subject to discovery in the administrative adversarial matter or prosecution. See Scruggs v. Bd. of Supervisors Alcorn Cnty. Comm’rs, 85 So.3d 325, 327-29 (¶¶ 9-11) (Miss.Ct.App.2012); Miss. Att’y Gen. Op., 2004-0039, 2004 WL 555120, Ringer (Feb. 13, 2004).

¶ 13. Relevant to resolution of the issue before us on appeal, the Mississippi public records law indeed requires a written response from the relevant agency, and section 25-61-5 specifies that even a denial of a public records request must be in writing. See Miss.Code Ann. § 25-61-2 (Rev. 2010) (duty on government agency to make public records available). The statute further explains that in a written denial, the public body shall provide a statement of the specific exemption relied upon by the public body for the denial. Section 25-61-5 also sets forth the time period within which a public entity must comply with a public records request. Loftin received no such response in this ease from the school district.

¶ 14. Based upon the foregoing, I dissent and would remand this case, since the school district failed to respond in writing, as required by statute, to Loftin’s public records request as to whether the specified documents requested were disclosed, or were denied pursuant to an applicable exemption. The chancellor’s order on this matter similarly fails to reflect whether the disclosure of the personnel file satisfied Loftin’s public records request. The chancellor’s order provides that “[the school district], after receiving the public records request, did not make a formal reply to the request; however, there was communication between the parties regarding the documents to be produced.” While acknowledging no formal reply by the school district existed, the chancellor provided no finding as to whether the school district produced the specific documents requested by Loftin’s public records request or whether he found that an exemption applied.

¶ 15. I further submit that the chancellor erred in finding that Loftin waived his right to request enforcement of his public records request since he allowed the non-renewal hearing to proceed. As previously acknowledged, a public records request is distinct from discovery, or a request for discovery information. No legal basis exists to find that the conclusion of the adversarial administrative hearing herein served as a waiver of Loftin’s public records request, or of the school district’s obligation to respond in writing, pursuant to section 25-61-5. As an appellate court, we are not fact-finders, and thus we are without means to determine whether the school district’s disclosure of Loftin’s personnel file satisfied his public records request. I therefore submit that remand is necessary to determine if the school district complied with Loftin’s public records request; only then can we determine whether or not the chancellor abused his discretion in denying Loftin’s motion to reconsider the denial of Loftin’s motion to compel production of public records.

IRVING, P.J., JOINS THIS OPINION.

      . On page four of the school district’s response entitled "Defendant’s Response to Petitioners’ Petition to Compel Production of Public Records and Enjoin Non-Renewal Hearing,” the school district acknowledged the existence of a difference between discoverable information and information subject to a public records request. In acknowledging that the school district provided Loftin with his personnel file, the school district provided that such a response was not required by the Public Records Act.

      . See also Miss.Code Ann. § 25-61-1 (Rev. 2010).

      . Section 25-61-5 provides the following:
      (l)(a) Except as otherwise provided by Sections 25-61-9 and 25-61-11, all public records are hereby declared to be public property, and any person shall have the right to inspect, copy or mechanically reproduce or obtain a reproduction of any public record of a public body in accordance with reasonable written procedures adopted by the public body concerning the cost, time, place and method of access, and public notice of the procedures shall be given by the public body, or, if a public body has not adopted written procedures, the right to inspect, copy or mechanically reproduce or obtain a reproduction of a public record of the public body shall be provided within one (1) working day after a written request for a public record is made. No public body shall adopt procedures which will authorize the public body to produce or deny production of a public record later than seven (7) working days from the date of the receipt of the request for the production of the record, (b) If a public body is unable to produce a public record by the seventh working day after, the request is made, the public body must provide a written explanation to the person making the request stating that the record requested will be produced and specifying with particularity why the records cannot be produced within the seven-day period. Unless there is mutual agreement of the parties, in no event shall the date for the public body’s production of the requested records be any later than fourteen (14) working days from the receipt by the public body of the original request.
      (2) If any public record contains material which is not exempted under this chapter, the public agency shall redact the exempted and make the nonexempted material available for examination. Such public agency shall be entitled to charge a reasonable fee for the redaction of any exempted material, not to exceed the agency’s actual cost.
      (3) Denial by a public body of a request for access to or copies of public records under this chapter shall be in writing and shall contain a statement of the specific exemption relied upon by the public body for the denial. Each public body shall maintain a file of all denials of requests for public records. Public bodies shall be required to preserve such denials on file for not less than three (3) years from the date such denials are made. This file shall be made available for inspection or copying or both during regular office hours to any person upon written request.


author: JAMES, J., for the Court:

text:
    Tonya WALLACE, Appellant v. GREENVILLE PUBLIC SCHOOL DISTRICT, Appellee.
    No. 2012-CA-01886-COA.
    Court of Appeals of Mississippi.
    April 1, 2014.
    Rehearing Denied July 22, 2014.

      Randon Isaac Dorsey, attorney for appellant.
    Willie Griffin, Greenville, attorney for appellee.
    Before LEE, C.J., ROBERTS, and JAMES, JJ.
   JAMES, J., for the Court:

¶ 1. Tonya Wallace filed a breach-of-contract lawsuit against the Greenville Public School District (GPSD), alleging ordinary breach of contract, and willful, malicious, and intentional breach of contract. The Washington County Circuit Court granted summary judgment in favor of the GPSD, finding that Wallace’s suit was barred by the applicable statute of limitations. Finding no error, we affirm.

FACTS

¶ 2. Wallace began her employment with the GPSD on April 22, 2001, upon entering into a one-year contract. The contract was renewed annually. In October 2006, Wallace was assigned to Solomon Middle School as a language-arts teacher. According to Wallace, on October 27, 2006, the principal instructed her to change the grades of certain students for reasons that Wallace felt were “unethical and illegal”; therefore, she refused to comply. Wallace claims that, as result, the principal “set upon a course of conduct toward [Wallace] which ultimately lead [sic] to her being forced to resign or being terminated.” Wallace tendered her resignation by letter dated December 6, 2006. The letter stated:

I, Tonya Wallace, am resigning from the position of teacher effective December 31, 2006. After a long, hard thought process, I have come to the conclusion that it is in the best interest of the children to give them the opportunity to have a fresh start for the up and coming semester.

¶ 3. Wallace filed her complaint against the GPSD in the Circuit Court of Washington County on December 21, 2009. The complaint alleged willful and malicious breach of her contract of employment. In her complaint, Wallace alleged that “because she would not participate in the illegal activity,” the principal “violated her authoritative rights as a teacher[,] ... [and] she was wrongfully deprived of her existing contract and subsequent contracts.” Wallace sought actual and compensatory damages and punitive damages in the amount of $200,000.

¶ 4. On March 25, 2011, the GPSD filed a motion for summary judgment. The GPSD argued that Wallace’s claim accrued no later than December 6, 2006, when Wallace tendered her letter of resignation; thus, Wallace’s claim was barred by the one-year statute of limitations of the Mississippi Tort Claims Act (MTCA), as set forth in Mississippi Code Annotated section 11^16-11 (Rev.2012), and the three-year statute of limitations applicable to breach of contract pursuant to Mississippi Code Annotated section 15-1-49 (Rev. 2012). A hearing on the motion for summary judgment was held on August 28, 2012. At the hearing, Wallace conceded that her claims for tortious breach or interference with her contract were barred by the one-year statute of limitations under the MTCA. However, Wallace argued that, although her letter of resignation was tendered and dated December 6, 2006, the resignation was not to take effect until December 31, 2006; thus, her complaint, filed December 21, 2009, was timely filed pursuant to section 15-1-49.

¶ 5. On October 19, 2012, the circuit court, finding that any claim for breach accrued on December 6, 2006, granted summary judgment in favor of the GPSD. Wallace appeals raising the following issue: whether the circuit court erred in finding that her claim was time-barred and granting summary judgment in favor of the GPSD. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 6. “The issue of whether the applicable statute of limitations has run is a question of law.” Stringer v. Trapp, 30 So.3d 339, 341 (¶ 9) (Miss.2010). Likewise, “[w]e conduct a de novo review of a trial court’s grant or denial of a motion for summary judgment.” Parmenter v. J & B Enters., Inc., 99 So.3d 207, 213 (¶ 7) (Miss.Ct.App.2012). Under Rule 56(c) of the Mississippi Rules of Civil Procedure, summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In determining whether summary judgment was properly granted by a trial court, we view “the facts in the light most favorable to the nonmov-ant.” Parmenter, 99 So.3d at 213 (¶ 7). “The burden of demonstrating that there are no genuine issues of material fact is upon the movant, and the non-moving party must be given the benefit of every reasonable doubt.” Id.

DISCUSSION

¶ 7. Wallace argues that the circuit court erred in finding that her breach-of-contract claim was time-barred by the three-year statute of limitations. The circuit court found that Wallace’s cause of action accrued on December 6, 2006, the day that Wallace tendered her letter of resignation. However, Wallace argues that her cause of action “occurred and/or accrued on December 31, 2006[,] ... the effective date of her resignation.”

¶ 8. Causes of action for breach of contract are subject to the three-year statute of limitations set forth in Mississippi Code Annotated section 15-1^9, which provides: “All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.” In its judgment granting summary judgment, the circuit court found:

[T]he Court finds that on December 6, 2006, [Wallace] tendered her letter of resignation effectively terminating her employment .... As of December 6, 2006, [Wallace] knew or had reason to believe that her employment with [the GPSD] had become so unbearable until, as stated in her letter of resignation, “after a long, hard thought process ...” [Wallace] came “to the conclusion that it is in the interest of the children to give them the opportunity to have a fresh start for the up and coming semester.” The Court finds that ... [Wallace] concluded on December 6, 2006, that she could no longer continue as a teacher [with the GPSD], Therefore, it is clear from [Wallace’s] letter that her cause of action accrued on December 6, 2006, and not on December 31, 2006 ....

Thus, the circuit court found that Wallace’s claim accrued on December 6, 2006. We agree.

¶ 9. The Mississippi Supreme Court has held that “in the case of a breach of contract, the cause of action accrues at the time of the breach, regardless of the time when the damages from the breach occurred[.]” Johnson v. Crisler, 156 Miss. 266, 125 So. 724, 724-25 (1930) (still recognized as controlling in Young v. S. Farm Bureau Life Ins. Co., 592 So.2d 103, 107 (Miss.1991)). For instance, in Black v. Ansah, 876 So.2d 395, 400 (¶ 23) (Miss.Ct.App.2003), we found that a cause of action accrued at the time an employee was informed by her employer that her employment contract would not be renewed, not when her contract actually expired. In finding that the statute of limitations began to run when Black received notice, we stated that “[w]e find no reason to conclude that a person with known and measurable harm that awaits solely the passage of time to inflict itself, may not sue because of that futurity until the time has passed.” Id. at 399 (¶ 19).

¶ 10. Likewise here, we find that Wallace knew or should have known of her potential claim on December 6, 2006, as evidenced by her letter of resignation, and not on December 31, 2006. Therefore, any breach-of-contract claim was required to be filed on or before December 6, 2009. Wallace filed her complaint on December 21, 2009; therefore, her claim is barred by the three-year statute of limitations. Accordingly, we affirm the judgment of the circuit court.

¶11. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: LEE, C.J., for the Court:

text:
    Albert L. BRISCO, Jr. a/k/a Albert Brisco a/k/a Albert Louis Brisco, Jr., a/k/a Albert Brisco, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-01117-COA.
    Court of Appeals of Mississippi.
    July 22, 2014.

      Office of State Public Defender by Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, C.J., BARNES and FAIR, JJ.
   LEE, C.J., for the Court:

PROCEDURAL HISTORY

¶ 1. A jury in the Warren County Circuit Court found Albert L. Brisco Jr. guilty of manslaughter by culpable negligence. The trial court sentenced Brisco to twenty years, with seventeen years to serve in the custody of the Mississippi Department of Corrections and three years of post-release supervision. Brisco filed post-trial motions, which were denied by the trial court. Brisco now appeals asserting the following: (1) the trial court erred in denying his motions for a directed verdict and a judgment notwithstanding the verdict (JNOV); (2) the verdict is against the overwhelming weight of the evidence; and (3) the trial court erred in denying his motion for a mistrial.

FACTS

¶2. During a roadblock conducted by the Warren County Sheriffs Department, Officer Ray Thompson observed a white SUV driving toward the roadblock at a high rate of speed. Officer Thompson testified this SUV accelerated as it reached the roadblock and drove through without stopping, nearly striking one of the officers present. Officer Thompson and Officer Mario Grady pursued the SUV.

¶ 3. Officer Grady testified he lost sight of the SUV for a moment but noticed debris along the road. Officer Grady questioned another motorist, who had seen the white SUV drive off the road and down an embankment near the railroad tracks. This motorist said the SUV was speeding and appeared out of control. Officer Grady saw the SUV at the bottom of the embankment lying on its passenger side.

¶ 4. Officer Thompson was able to extract the driver from the SUV. Officer Thompson read the driver, identified as Brisco, his Miranda rights. Officer Thompson testified he asked Brisco why he drove through the roadblock. Brisco replied that he was drunk. Officer Thompson also testified Brisco was combative and had to be restrained. A sample of Brisco’s blood tested positive for the presence of alcohol, marijuana, and MDMA (ecstacy). The toxicologist determined Brisco’s blood-alcohol content (BAC) was .04%.

¶ 5. An accident reconstructionist conducted an investigation in which he determined Brisco was traveling seventy-six miles per hour, well over the posted forty-five mile per hour speed limit.

¶ 6. One of Brisco’s passengers, Latasha Haggan, who was also Brisco’s girlfriend, was pronounced dead at the scene of the accident.

¶ 7. Brisco testified he failed to stop at the roadblock at Haggan’s insistence. Brisco said Haggan was carrying ecstasy tablets, a bottle of which was found on Haggan’s body. A toxicology report showed that Haggan did not have ecstasy in her system. Brisco also testified he was not drunk at the time of the accident but told the officers this to focus their attention away from Haggan. Brisco stated he had consumed one alcoholic beverage that day, had last smoked marijuana weeks pri- or to the accident, and had ingested ecstasy two days prior to the accident.

DISCUSSION

I. SUFFICIENCY OF THE EVIDENCE

¶ 8. In his first issue on appeal, Brisco argues the trial court erred in failing to grant his motions for a directed verdict and a JNOV. These motions challenge the legal sufficiency of the evidence supporting the guilty verdict. Parker v. State, 30 So.3d 1222, 1234-35 (¶48) (Miss.2010). “[T]he critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]’ ” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, that the essential elements of the crime existed, this Court will affirm the conviction. Id. Furthermore, it is well-settled law that the jury determines the credibility of the witnesses and resolves conflicts in the evidence. Davis v. State, 866 So.2d 1107, 1112 (¶ 17) (Miss.Ct.App.2003). “[The] standard of review for denials of a motion for JNOV and directed verdict is the same.” Reed v. State, 956 So.2d 1110, 1111 (¶ 6) (Miss.Ct.App.2007) (citing Jefferson v. State, 818 So.2d 1099,1111 (¶ 30) (Miss.2002)).

¶ 9. Brisco was convicted of manslaughter pursuant to Mississippi Code Annotated section 97-3-47 (Rev.2006), which states that “[e]very other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter.” The Mississippi Supreme Court has defined culpable negligence as “the conscious and wanton or reckless disregard of the probabilities of fatal consequences to others as a result of the wilful creation of an unreasonable risk thereof.” Chandler v. State, 946 So.2d 355, 361 (¶ 22) (Miss.2006) (citation omitted). The supreme court has also defined culpable negligence as “such gross negligence as to evince a wanton or reckless disregard for the safety of human life, or such an indifference to the consequences of an act under the surrounding circumstances as to render such conduct tantamount to willfulness.” Id. (quoting Shumpert v. State, 935 So.2d 962, 967 (¶ 14) (Miss.2006)).

¶ 10. Brisco contends that the evidence showed his BAC was under the legal limit, and the State failed to prove he had ingested any illegal substances prior to the accident; therefore, the State could not prove he disregarded the safety of others under circumstances likely to cause injuries. The State did show that Brisco had several illegal substances in his system at the time of the accident. Perhaps more significantly, there was ample proof that Brisco was driving recklessly — he evaded a police roadblock, ran a stop sign, led officers on a high-speed chase, lost control of the SUV, and careened down an embankment.

¶ 11. Our courts have upheld several culpable-negligence-manslaughter convictions in which the defendant caused an automobile accident resulting in death. See Goldman v. State, 406 So.2d 816, 817-20 (Miss.1981) (defendant drove automobile across solid yellow line, causing oncoming automobile to run off the road and resulting in the driver’s death); Gebben v. State, 108 So.3d 956, 975 (¶ 58) (Miss.Ct.App.2012) (defendant unlawfully passed a school bus, hit a child, and fled the scene); Montgomery v. State, 910 So.2d 1169, 1174 (¶ 17) (Miss.Ct.App.2005) (fatal automobile collision resulted from defendant running a red light).

¶ 12. Viewing the evidence in the light most favorable to the State, any rational juror could have found beyond a reasonable doubt that Brisco was guilty of culpable-negligence manslaughter. This issue is without merit.

II. WEIGHT OF THE EVIDENCE

¶ 13. Brisco further contends his conviction is against the overwhelming weight of the evidence. “When reviewing 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 (¶ 18) (Miss.2005). Brisco’s arguments are similar to those expressed in the previous issue. From the evidence described in the previous issue, we cannot find that allowing the verdict to stand would sanction an unconscionable injustice. This issue is without merit.

III. MOTION FOR MISTRIAL

¶ 14. Finally, Brisco claims the trial court erred in denying his motion for a mistrial. During Officer Grady’s testimony, the jury was shown the dashcam video showing the chase and the wreck. The record indicates an emotional outburst by an audience member, in which this person ended up on the floor. The trial judge immediately sent the jury out to discuss the situation with the attorneys. The trial judge instructed the State to advise Hag-gan’s family members to control their emotions and refrain from further outbursts. After bringing the jury back into the courtroom, the trial judge instructed them to base their decision on the facts and the law but not sympathy. The trial judge asked each juror if they would be able to do so, and each juror responded in the affirmative. Only after the testimony of three more State witnesses and a lunch break did Brisco move for a mistrial based upon the outburst.

¶ 15. Since Brisco failed to move for a mistrial in a timely manner, this issue is procedurally barred on appeal. See Herrington v. State, 690 So.2d 1132, 1139 (Miss.1997) (motion must be made contemporaneously with the allegedly improper utterance); Collins v. State, 81 So.3d 1174, 1179 (¶ 13) (Miss.Ct.App.2011). This issue is without merit.

¶ 16. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT OF CONVICTION OF CULPABLE-NEGLIGENCE MANSLAUGHTER AND SENTENCE OF TWENTY YEARS, WITH SEVENTEEN YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND THREE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

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

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


author: GRIFFIS, P.J., for the Court:

text:
    Jason A. PRUITT, Appellant v. Lisa S. PRUITT, Appellee.
    No. 2013-CA-00128-COA.
    Court of Appeals of Mississippi.
    July 22, 2014.

      Timothy C. Hudson, Columbus, attorney for appellant.

      Lisa S. Pruitt, appellee, pro se.
    Before GRIFFIS, P.J., ISHEE and MAXWELL, JJ.
   GRIFFIS, P.J., for the Court:

¶ 1. Jason Pruitt appeals the chancellor’s denial of his petition to modify custody. We affirm in part and reverse and remand in part for further proceedings consistent with this opinion.

FACTS

¶ 2. Jason and Lisa were married on March 22, 2003.

¶ 3. On March 26, 2010, Lisa and Jason were divorced by an agreed final judgment of divorce on the grounds of irreconcilable differences. The judgment gave Lisa physical custody of Cole, born October 18, 2003, and Kyle, born September 4, 2004. Jason was awarded visitation. The judgment gave Lisa and Jason joint legal custody of Cole and Kyle.

¶ 4. In April 2012, Jason filed a petition to modify custody. He alleged that there was a material change in circumstances that had occurred, and it adversely affected the children. Jason alleged that, under Lisa’s custody: (1) the children were exposed to illegal drug activity and persons of bad reputations, and (2) the children had poor school performance and attendance because of Lisa’s poor health.

¶ 5. A hearing on the petition was held on December 6, 2012. Lisa testified that she started dating Bobby Stafford in August 2010. Stafford had been indicted on felony charges for the sale of hydrocodone in the fall of 2010. Lisa testified that she dated Stafford for a year, and the relationship ended when he went to jail in 2011. Lisa also gave a synopsis of her recent medical history:

I’ve suffered from migraines for several years. It started out just regular headaches and started to progress from there. It became migraines with dizziness, and it affected my eyesight. It affected my hearing. They did diagnose me with pseudotumor cerebri, and as of February of this year, started with spinal taps, which led to now counting is [sic] four brain surgeries. Pseudotumor cerebri is not a tumor. It’s where your body thinks it’s a tumor, and your body doesn’t recycle spinal fluid like it should, so it just builds up pressure. So there is no drain between the two. They’s why the shunt has been put in to drain the pressure from my head.

¶ 6. Lisa also testified that, in February 2011, she had to go to Ochsner Hospital, in New Orleans, to see a team of neurosurgeons and neurologists due to her vision loss. She took the children with her, and they missed a week of school. While in New Orleans, Lisa took the children to two Mardi Gras parades, because she said that she wanted things to be as normal as possible for them. Lisa rode in a wheelchair at the parades.

¶ 7. Lisa testified that she was currently under the care of her doctors, and the doctors do not foresee the need for another medical procedure. Lisa denied any abuse of narcotics and pain killers. However, she does take prescribed pain killers and is on a pain management program. The doctor’s medical records listed overuse of pain medication as one of Lisa’s problems.

¶ 8. Barbara Williams, a social worker for the Department of Human Services, investigated Lisa and her home. Williams found that: the children’s basic needs were taken care of, there was no evidence of abuse, the home was a safe environment, Lisa had familial support, and there were no dangers at home. Williams testified that she never had any doubt that Lisa was a good mother. When asked about her investigation, Williams stated that there were some safety concerns because Lisa had a taser, and Jason had a pistol.

¶ 9. Cole testified that one year at Christmas, Jason told him that Cole needed to stop telling on Kyle. If he did not, Jason would hurt Lisa and her mother, Judy Sims, and take Cole to the hospital to watch them die. Cole further testified that Jason broke things in the house. After the divorce, Jason broke Cole’s bird’s neck. Cole testified that Jason threw him against a wall and screamed at him. Jason also spanked Cole with a shoe, a belt, and a spoon.

¶ 10. Jason testified that he received a letter from Sims dated February 10, 2012, and this letter was the main reason why he filed the petition for custody modification. In the letter, Sims stated that since Lisa started dating Stafford, she had taken care of the children almost ninety percent of the time. Sims wrote in the letter that Cole and Kyle see things that no child should ever have to see, including drug deals. At the time the letter was written, Lisa was working at night, so the boys would fall asleep at Sims’s house. Sims would take them to school. Sims stated that people would show up at Lisa’s house and pills disappeared. While Lisa was at work, Sims, Jason, or Jason’s parents had the children. Sims stated that Jason was a good father who loves his children. If you asked the children who they would want to live with, Kyle would say Jason or Jason’s father, Jay, and Cole would say Sims. Sims turned Stafford in for selling drugs.

¶ 11. Jason testified that he saw Stafford alone with the children and that his private investigator videotaped it. When asked if he had the tape, Jason said that the tape was lost.

¶ 12. On December 20, 2012, the chancellor issued a final judgment and ruled that Lisa’s relationship with Stafford was not a “change in material circumstances that was serious enough to warrant a modification of custody.” The chancellor found that while Lisa’s health had deteriorated and this amounted to a material change in circumstances, it did not adversely affect the children. It is from this judgment that Jason appeals.

STANDARD OF REVIEW

¶ 13. “In domestic relations cases, [the appellate court’s] scope of review is limited by the substantial evidence/manifest error rule.” Samples v. Davis, 904 So.2d 1061, 1063-64 (¶ 9) (Miss.2004) (citing Jundoosing v. Jundoosing, 826 So.2d 85, 88 (¶ 10) (Miss.2002)). “[We] will not disturb the chancellor’s opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id. at 1064 (¶ 9) (quoting Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996)).

ANALYSIS

Custody Modification

¶ 14. “In the ordinary modification proceeding, the non-custodial party must prove: (1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child’s welfare; and (3) that the child’s best interests mandate a change of custody.” Denmark v. Denmark, 118 So.3d 679, 681 (¶ 5) (Miss.Ct.App.2013). “[T]he totality of the circumstances should be considered.” Id. “Even though under the totality of the circumstances a change has occurred, the court must separately and affirmatively determine that this change is one which adversely affects the children.” Id. “Furthermore, it is well settled that the polestar consideration in any child custody matter is the best interest and welfare of the child.” Id. (citing Albright v. Albright, 437 So.2d 1003,1005 (Miss.1983)).

¶ 15. Here, the chancellor found that: (1) Lisa’s relationship with Stafford was not a material change in circumstances, and (2) Lisa’s deteriorating health was a material change in circumstances but did not rise to a level of adverse effect.

A. Material Change in Circumstances

¶ 16. The chancellor must first decide whether there has been a material change in circumstances since the custody decree was issued.

i. Lisa’s Relationship with Stafford

¶ 17. Jason argues that the chancellor should have found Lisa’s relationship with Stafford was a material change in circumstances, which warranted custody modification.

¶ 18. The chancellor concluded that Lisa’s relationship with Stafford, “though not preferred, [was not] a sufficient change in material circumstances that [was] serious enough to warrant a modification of custody.” The chancellor ruled that most of Jason’s testimony about Stafford was based on Sims’s letter, which was written approximately six months after Stafford was incarcerated. The chancellor found that because Stafford was already incarcerated, there was no evidence of any other threat or exposure to illegal activity and persons with unseemly character.

¶ 19. In Ruth v. Burchfield, 23 So.3d 600, 602-03 (¶ 6) (Miss.Ct.App.2009), Ruth presented evidence that his daughter had witnessed inappropriate behavior between her fifteen-year-old babysitter and her twenty-year-old half brother. Testimony also showed that the half brother was using marijuana in the house. Id. at 604 (¶ 10). At the time of trial, Burchfield had fired the babysitter, and the half brother no longer lived in their home. Id. at 603 (¶ 6). This Court affirmed the chancellor’s judgment and found that the potential adverse conditions had been removed. Id. at 606-07 (¶ 20).

¶ 20. Jason asserts that the situation in Ruth is different from this case. Burch-field removed any potential adverse conditions, and Lisa did not. Here, Stafford’s incarceration removed the potential adverse effect on the children. By the time the hearing was held, there was no real danger or threat. Thus, we find that there was sufficient evidence to support the chancellor’s decision.

¶ 21. Jason also contends that Lisa’s new relationship with Tracey Jones will cause problems in the future. Jason claims that Jones is a convicted felon. Lisa testified at trial that Jones is a childhood friend who was hired as a handyman by her landlord. She has denied any romantic relationship with Jones. The chancellor found that there was little or no evidence to support the contention that Lisa had a romantic relationship with Jones and that Lisa is a “single woman entitled to her life.” There was sufficient evidence to support the chancellor’s decision.

ii. Lisa’s Health

¶ 22. The chancellor did find that Lisa’s health decline was a material change in circumstances. In his final judgment, the chancellor ruled:

The failure to supervise troubles the Court, as to the attendance of the children at school. Without a doubt, Lisa has had a hard time in the past year with her medical condition and this would account for the allegation that she has been unable to properly supervise the children. This failure centers on the school attendance of the children, Lisa’s prognosis for her illness and her need for a variety of medications in relation to her recovery. These issues do constitute a material change in circumstances which are serious enough to result in modification of custody.
It was proven that the boys had not attended school regularly, although they passed. They were also frequently late. There was little or no proof to show if the performance of the boys in school was affected by this, as neither one was portrayed as an exemplary student....

¶ 23. We agree with the chancellor that there was sufficient evidence of a material change in circumstances. Lisa’s health has deteriorated since the custody decree was entered. Because of this, Kyle and Cole have missed many days of school, they are regularly tardy for school, and their homework is often incomplete. Additionally, their grades are poor. Thus, we agree with the chancellor’s finding that Lisa’s health deterioration has caused a material change in circumstances in her home.

B. Adverse Effect

¶ 24. Once the chancellor has found that a material change in circumstances has occurred in the custodial home, he must determine whether that change has adversely affected the children. Denmark, 118 So.3d at 681 (¶ 6).

¶ 25. Here, the chancellor found that the material change in circumstances did not rise to a level of an adverse effect on the children. The chancellor concluded:

There is no debate that it is adverse to a child to not attend school regularly. Lisa’s illness affected this dramatically. However, Jason lives in Noxubee County and the children would have to be moved to another school. Also, he is too far away to make sure they are at school on time and regularly. Further, his work schedule ... requires him to leave early and come home late. He depends on his father as much as Lisa depends on her mother for this duty.
It is also without question that Lisa’s illness and associated medication use can cause her to be unable to properly supervise the children or to meaningfully engage with them in homework, school and extracurricular activities. However, there was no persuasive evidence that rose to the level necessary to allow this Court to change custody.

¶ 26. Jason argues that the chancellor abused his discretion when he found that Lisa’s change in health had no adverse effect on their children.

¶ 27. Two teachers from the children’s school, Pam Farrow and Pam Cobb, testified that the children’s homework appeared to be completed more after a night with Jason. Also, the children are at school more often if they stay with Jason. Farrow has taught both Cole and Kyle. She testified that Kyle seems to have fewer problems with homework completion than Cole. Farrow testified that she told Sims that she wanted the children to ride the school bus so they would not be tardy. Farrow further testified that Jay usually brings the children to school when they stay with him and Jason.

¶ 28. Cobb testified that Kyle seemed happier after spending the previous night with Jason and Jay. According to Cobb, Kyle wanted to live with Jason.

¶ 29. In Riley v. Doerner, 677 So.2d 740, 744 (Miss.1996), the supreme court held:

[Wjhere a child living in a custodial environment clearly adverse to the child’s best interest ] somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment.... A child’s resilience and ability to cope with difficult circumstances should not serve to shackle the child to an unhealthy home, especially when a healthier one beckons.

Although the chancellor applied Riley to his findings, the chancellor concluded:

The facts of this case do not rise to a requisite showing of a strong likelihood or that necessary to find an adverse effect. It be would preferable to have the children in school regularly and on time. It would be preferable if Lisa had not undergone medical problems and [been] reliant on prescription medication. It would be preferable that Lisa choose more wisely in her associations. It appears to this Court that the problems asserted by Jason stem from Lisa’s unavoidable illness and the necessity under doctor’s care to use prescription medications.
This Court still must consider the effect on the children even though it does not appear that the current issues are voluntary. Neither boy was alleged to be a good student. Even though the attendance was not good, they both passed. The use of medication by Lisa was not shown to be adverse to the children....

¶ 30. We find that the chancellor was in error in the conclusion that Lisa’s health deterioration had no adverse effect on the children. The evidence indicated that the children almost failed their respective grades because of school absences. They received poor grades and often did not have their assignments completed. Also, they were frequently late and/or absent from school. In fact, they missed a week of school to accompany Lisa to her doctor’s appointment in New Orleans, and to attend Mardi Gras parades. Thus, we conclude that the chancellor’s decision that there was no adverse effect on the children was not supported by substantial evidence and was an abuse of discretion.

C. Albright Analysis

¶ 31. After a chancellor has found a material change in circumstances and an adverse effect on the children, the final step is to conduct a best-interest analysis, found in Albright.

¶ 32. The Mississippi Supreme Court “has enumerated several factors to help chancellors determine what is in the ‘best interest’ of the child in a custody dispute.” Story v. Allen, 7 So.3d 295, 297 (¶ 13) (Miss.Ct.App.2008) (citing Albright, 437 So.2d at 1005). These include:

[A]ge, health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent[;] and other factors relevant to the parent-child relationship.

Id.

¶ 33. In conclusion, we affirm the chancellor’s decision that there was a material change in circumstances in the custodial home. We reverse the chancellor’s decision that there was no adverse effect on the children, and we remand this case for the chancellor to proceed with the Albright analysis.

¶ 34. THE JUDGMENT OF THE CHANCERY COURT OF LOWNDES COUNTY IS AFFIRMED IN PART AND REVERSED IN PART, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE.

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

      .. Sims testified at the hearing. When asked about the letter she wrote, she testified that parts of the letter were missing. Sims testified that she wrote the letter under coercion. She stated that Jason threatened her' — he told her that if she did not write the letter, he would tell everybody that he had sex with Sims and that he would take the children away, and they would never be found.

      . Albright, 437 So.2d 1003.


author: STUART, Justice.

text:
    AFASSCO, INC. v. Comer Ladon SANDERS.
    1120801.
    Supreme Court of Alabama.
    Nov. 22, 2013.

      Dennis R. Bailey, Bethany L. Bolger, and J. Evans Bailey of R'ushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellant.
    Stephen T. Etheredge of Buntin, Ether-edge & Dowling, LLC, Dothan, for appel-lee.
   STUART, Justice.

Afasseo, Inc., a Nevada-based distributor of medical and safety equipment, appeals the judgment of the Houston Circuit Court holding that a judgment Afasseo obtained in a Nevada state court against former Afasseo employee Comer Ladon Sanders, an Alabama resident, was void because the Nevada court lacked personal jurisdiction over Sanders. We reverse and remand.

I.

In early 2005, Sanders responded to an advertisement in the Dothan Eagle placed by Afasseo seeking a sales representative. Sanders subsequently met with Afassco’s president, Don Schumaker, and another Afasseo representative from the Birmingham area at a Dothan hotel to discuss his potential employment, and, on February 7, 2005, Sanders entered into a formal employment agreement with Afasseo. That agreement contained clauses providing that Sanders would not disclose or appropriate Afassco’s trade secrets and that Sanders would not associate or have any financial interest in any competing companies while working as an Afasseo employee or for a period of two years after his separation of employment from Afasseo. The employment agreement also specifically provided that it would be governed by Nevada law. Sanders did not travel to Nevada for training before commencing his employment; however, he did travel to Nevada for two days of training in October 2005.

As part of his duties as an Afasseo sales representative, Sanders periodically visited Afasseo customers, typically businesses and government entities, in his assigned territory, which encompassed parts of Alabama, Florida, and Georgia, and ensured that their on-site first-aid kits were fully stocked. After restocking customers’ kits, Sanders would fax a list of the products that had been restocked to Afasseo headquarters in Nevada, which then sent him a check based on their agreed-upon commission rate. Sanders was also provided a company credit card to use for all business-related expenses.

The evidence in the record indicates that Sanders generally did a good job working as a sales representative and servicing his accounts; however, he was repeatedly counseled that he needed to improve his record-keeping, particularly with regard to submitting required reports and receipts to Afasseo headquarters. That evidence also indicates that the Afasseo administrative staff viewed him as being insubordinate and uncooperative when they attempted to work through the problems they were having with him. On June 3, 2008, Afasseo terminated Sanders’s employment.

Thereafter, Sanders established a new company called Advanced First Aid Service. Afasseo alleges that Sanders then improperly used Afassco’s customer lists and proprietary information and began supplying Afasseo customers with medical and safety equipment for Advanced First Aid Service’s account. Afasseo further alleges that, with regard to at least some of those customers, Sanders never informed them that he was no longer employed by Afassco and that he, in fact, restocked those customers with supplies and equipment he had failed to return to Afassco after his employment had been terminated. Afassco eventually recovered approximately $3,500 in Afassco inventory from him, although, it alleges, an audit indicates that an additional $88,000 in inventory was missing. Afassco also pursued a criminal case against Sanders.

On January 19, 2012, Afassco sued Sanders in Nevada state court, asserting claims of misappropriation of trade secrets, tor-tious interference with contractual relations, breach of contract, and conversion. On February 5, 2012, Sanders was served with a copy of Afassco’s complaint in Do-than. Sanders did not file an answer or otherwise respond to the complaint within the 20-day period provided by Nevada law, and, on March 1, 2012, the Nevada court accordingly entered a default against Sanders. See Rule 12(a)(1), Nev. R. Civ. P. (“A defendant shall serve an answer within 20 days after being served with the summons and complaint....”), and Rule 55(a), Nev. R. Civ. P. (“When a party against whom a judgment for affirmative relief has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default.”).

On April 2, 2012, Sanders filed a pro se motion with the Nevada court, asking it to dismiss Afassco’s action against him because, Sanders alleged, the Nevada court lacked jurisdiction over him. In that motion, Sanders asserted that he had never been a citizen of Nevada, that he had never done business in Nevada, that he had never advertised to do business in Nevada, and that he had “no connections with the State of Nevada whatsoever.” On April 16, 2012, Afassco filed a motion in opposition to Sanders’s motion to dismiss, arguing that the Nevada court could properly exercise personal jurisdiction over Sanders based on his relationship with Afassco and that Sanders had waived any right to assert the lack of personal jurisdiction as a defense based on his failure to raise that issue within 20 days of being served with Afassco’s complaint.

It appears that the Nevada court never explicitly ruled on Sanders’s motion to dismiss. On June 20, 2012, Afassco filed a motion seeking a default judgment accompanied by supporting evidence establishing the damages it claimed in accordance with the claims asserted in its complaint. See Rule 55(b)(2), Nev. R. Civ. P. (“If, in order to enable the court to enter [default] judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper....”). On July 17, 2012, the Nevada court entered a default judgment in favor of Afassco, awarding it $349,492 and permanently enjoining Sanders from “servicing current or former Afassco customers and using Afassco’s proprietary information, including invoices, pricing methods, products and product names.” On September 6, 2012, the Nevada court awarded Afassco an additional $7,097 in costs and attorney fees. The record indicates that Sanders was sent notice of both Afassco’s motion for a default judgment and the default judgment. Sanders filed no appeal of the default judgment in the Nevada court system.

On October 26, 2012, Afassco moved the Houston Circuit Court to domesticate the judgment entered against Sanders by the Nevada court pursuant to the terms of Alabama’s Uniform Enforcement of Foreign Judgments Act, § 6-9-230 et seq., Ala.Code 1975. Sanders was served with Afassco’s motion on October 30, 2012, and, on November 1, 2012, the trial court entered an order domesticating the judgment. On November 7, 2012, Sanders moved the trial court for relief from the foreign judgment, arguing that the Nevada court lacked jurisdiction over him and that its judgment was accordingly void and unenforceable. Afassco thereafter filed a response, and on March 21, 2013, the trial court conducted a hearing to consider the parties’ arguments. On March 27, 2013, the trial court granted Sanders’s motion for relief from the foreign judgment, holding that the judgment was “void due to the lack of personal jurisdiction over the defendant.” On April 8, 2013, Afassco filed its notice of appeal to this Court.

II.

Sanders’s motion for relief from a foreign judgment was filed pursuant to Rule 60(b)(4), Ala. R. Civ. P., which authorizes a trial court “to relieve a party ... from a final judgment” if “the judgment is void.” See Ex parte Trinity Auto. Servs., Ltd., 974 So.2d 1005, 1009 (Ala.Civ.App.2006) (“Both our Supreme Court and this court have held that the appropriate procedural mechanism by which to collaterally attack a foreign judgment on the basis that the judgment is void for lack of jurisdiction is by a motion filed pursuant to Rule 60(b)(4).”). In Orix Financial Services, Inc. v. Murphy, 9 So.3d 1241, 1244 (Ala.2008), we explained that we review de novo a trial court’s ruling on such a motion:

“ ‘The standard of review on appeal from the denial [or granting] of relief under Rule 60(b)(4) is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process. Satterfield v. Winston Industries, Inc., 553 So.2d 61 (Ala.1989).’
“[Insurance Management & Administration, Inc. v. Palomar Insurance Corp., 590 So.2d 209, 212 (Ala.1991).] Additionally, we note that ‘[t]he validity and effect of a foreign judgment, of course, are to be determined by the law of the state in which it was rendered.’ Morse v. Morse, 394 So.2d 950, 951 (Ala.1981) (citing Forbes v. Davis, 187 Ala. 71, 65 So. 516 (1914)).”

III.

Afassco argues that the trial court erred by holding the judgment entered against Sanders by the Nevada court to be void for lack of personal jurisdiction because, it argues, (1) Sanders waived any right to subsequently contest personal jurisdiction in an Alabama action by first appearing and raising that issue in the Nevada action and (2) Sanders’s contacts with Nevada during the course of his relationship with Afassco were sufficient, Afassco argues, so that the Nevada court’s exercise of jurisdiction over him complied with the requirements of due process. See, e.g., Consipio Holding, BV v. Carlberg, 282 P.3d 751, 754 (Nev.2012) (“Nevada’s long-arm statute permits personal jurisdiction over a nonresident defendant unless the exercise of jurisdiction would violate due process. [Nev.Rev.Stat. § ] 14.065(1). ‘Due process requires “minimum contacts” between the defendant and the forum state “such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.”’ Trump [v. District Court], 109 Nev. [687,] 698, 857 P.2d [740,] 747 [ (1993) ] (quoting Mizner v. Mizner, 84 Nev. 268, 270, 439 P.2d 679, 680 (1968)).”). We first consider Afassco’s argument that Sanders has waived the right to assert that the Nevada court lacked personal jurisdiction over him when it entered the default judgment against him and in favor of Afassco.

In Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982), the Supreme Court of the United States summarized a party’s options when he or she is named as a defendant in. an action and does not believe that the court in which the action was filed has personal jurisdiction over him or her. First, “[the] defendant is always free to ignore the judicial proceedings, risk a default judgment, and then challenge that judgment on jurisdictional grounds in a collateral proceeding.” 456 U.S. at 706. (citing Baldwin v. Traveling Men’s Ass’n, 283 U.S. 522, 525, 51 S.Ct. 517, 75 L.Ed. 1244 (1931)). Alternatively, the defendant may voluntarily appear in the action to make an initial challenge to the court’s jurisdiction; however, “[b]y submitting to the jurisdiction of the court for the limited purpose of challenging jurisdiction, the defendant agrees to abide by that court’s determination on the issue of jurisdiction: That decision will be res judicata in any further proceedings.” 456 U.S. at 706. (citing Baldwin, 283 U.S. at 524).

In the instant action, Sanders initially chose to ignore the Nevada action when he was served; however, after a default was entered, he filed a motion to dismiss the action based on the Nevada court’s alleged lack of personal jurisdiction over him. By filing that motion to dismiss, Sanders submitted to the jurisdiction of the Nevada court at least for the limited purpose of challenging jurisdiction, and that court’s determination of the personal-jurisdiction issue is accordingly res judicata in any further proceedings. Insurance Corp. of Ireland, 456 U.S. at 706. However, Sanders argues that, even if he did submit the issue of personal jurisdiction to the Nevada court, that court did not, in fact, consider that issue and, accordingly, there can be no res judicata effect. Sanders argues that there is nothing in the record indicating that the Nevada court considered his motion to dismiss, nor is there any mention of the jurisdictional issue in the default judgment that was finally entered. Accordingly, Sanders argues, the trial court properly granted his Rule 60(b)(4) motion for relief from the foreign judgment. See Pirtek USA, LLC v. Whitehead, 51 So.3d 291, 296 (Ala.2010) (stating that an Alabama court need not give full faith and credit to a foreign judgment if the issue of jurisdiction was not fully and fairly litigated by the foreign court or the issue of jurisdiction was not finally decided by the foreign court).

However, Sanders fails to recognize that, regardless of whether the Nevada court ever considered the substance of his personal-jurisdiction argument, the personal-jurisdiction issue was still fully and fairly litigated if the Nevada court decided it on procedural grounds as opposed to substantive grounds. In Insurance Corp. of Ireland, the Supreme Court of the United States explained:

“Because the requirement of personal jurisdiction represents first of all an individual right, it can, like other such rights, be waived.... [Ujnlike subject-matter jurisdiction, which even an appellate court may review sua sponte, under Rule 12(h), Fed.R.Civ.P., ‘[a] defense of lack of jurisdiction over the person ... is waived’ if not timely raised in the answer or a responsive pleading.
“In sum, the requirement of personal jurisdiction may be intentionally waived, or for various reasons a defendant may be estopped from raising the issue. These characteristics portray it for what it is — a legal right protecting the individual. The plaintiffs demonstration of certain historical facts may make clear to the court that it has personal jurisdiction over the defendant as a matter of law — i.e., certain factual showings will have legal consequences — but this is not the only way in which the personal jurisdiction of the court may arise. The actions of the defendant may amount to a legal submission to the jurisdiction of the court, whether voluntary or not.
“The expression of legal rights is often subject to certain procedural rules: The failure to follow those rules may well result in a curtailment of the rights. Thus, the failure to enter a timely objection to personal jurisdiction constitutes, under Rule 12(h)(1), a waiver of the objection.
“... [T]he manner in which the court determines whether it has personal jurisdiction may include a variety of legal rules and presumptions, as well as straightforward factfinding. A particular rule may offend the due process standard of Hammond Packing [Co. v. Arkansas, 212 U.S. 322. (1909) ], but the mere use of procedural rules does not in itself violate the defendant’s due process rights.”

456 U.S. at 703-07. Like Rule 12(h)(1), Federal Rules of Civil Procedure, Rule 12(h)(1), Nevada Rules of Civil Procedure, and Rule 12(h)(1), Alabama Rules of Civil Procedure, provide that a defense of lack of personal jurisdiction is waived if not timely asserted. See also Hansen v. Eighth Judicial Dist. Court ex rel. County of Clark, 116 Nev. 650, 656-57, 6 P.3d 982, 986 (2000) (“Objections to personal jurisdiction ... are waived, however, if not made in a timely motion or not included in a responsive pleading such as an answer. See Rules 12(g) and (h)(1), Nev. R. Civ. P. Thus, to avoid waiver of a defense of lack of jurisdiction over the person ... the defendant should raise its defenses either in an answer or pre-answer motion.” (footnote omitted)).

By failing to assert lack of personal jurisdiction as an affirmative defense within the 20 days allowed by Nevada law, Sanders waived the right to assert that defense in the Nevada court. Had Sanders elected to completely ignore the Nevada action, he could nevertheless have asserted that defense when Afassco attempted to domesticate the resulting judgment in Alabama. Insurance Corp. of Ireland, 456 U.S. at 706. However, after default was entered against him— but before the default was reduced to judgment — Sanders appeared in the Nevada court and moved to dismiss the action on personal-jurisdiction grounds, thus consenting to the Nevada court’s determination of the jurisdiction issue. The Nevada court did not grant his motion to dismiss, and Sanders did not, after the final default judgment was entered, move for relief from the default judgment pursuant to Rule 60(b), Nev. R. Civ. P., which sets forth the procedure for moving to have a default judgment set aside, nor did he file an appeal to the Supreme Court of Nevada asserting his personal-jurisdiction argument. Thus, although Sanders did not prevail on his personal-jurisdiction argument, he did assert it, and it was finally-decided, if only on procedural grounds. Sanders is accordingly bound by that decision, and he cannot seek to now relitigate the issue in an Alabama forum.

We note that our decision is supported by previous Alabama caselaw on this topic. In Stribling Equipment, Inc. v. Crager, 891 So.2d 299 (Ala.2004), an Alabama defendant sued in a Mississippi court filed two answers to the complaint, neither of which asserted lack of personal jurisdiction as a defense. Id. at 301. Both of those answers were subsequently stricken by the Mississippi court. Id. The Alabama defendant had no other participation in the Mississippi action, and a judgment was eventually entered against him. Id. After the Mississippi plaintiff moved an Alabama court to domesticate the judgment, the Alabama defendant moved for relief from the judgment, arguing that the Mississippi court had lacked personal jurisdiction over him. Id. at 301-02. The Alabama court granted his motion; however, on appeal, this Court reversed that court’s judgment, noting — as was the case with Sanders— that the Alabama defendant had waived his right to contest personal jurisdiction in the foreign action because he had appeared in the action but failed to assert that defense in the time prescribed by the law of the foreign forum. Id. at 302-03.

Similarly, in Package Express Center, Inc. v. Maund, 957 So.2d 1137, 1139 (Ala.Civ.App.2006), Alabama defendants sued in a Tennessee court filed an initial motion to dismiss the action on personal-jurisdiction grounds and a subsequent answer making the same argument. The Tennessee court never specifically addressed their personal-jurisdiction argument, and, after they subsequently participated in and lost at trial, the Tennessee court entered a judgment against them. Id. at 1139-40. Their appeal of that judgment to the Tennessee Court of Appeals was also unsuccessful. Id. After the Tennessee plaintiff domesticated the judgment in Alabama, an Alabama court granted the Alabama defendants’ motion for relief from the judgment, concluding that the issue of personal jurisdiction had not been fully and fairly litigated in the absence of any indication from the Tennessee court that it had considered the personal-jurisdiction argument that the defendants had unquestionably raised. Id. at 1140. The Tennessee plaintiff appealed that judgment to the Court of Civil Appeals, which reversed the trial court’s judgment, holding that, even though the Alabama defendants had raised a challenge to the foreign court’s exercise of personal jurisdiction over them, they subsequently waived that challenge when they failed to pursue it to an end before the Tennessee trial court or, subsequently, the Tennessee appellate court. Id. at 1142. In the instant case, Sanders similarly raised a personal-jurisdiction challenge, but he then failed to take steps, such as the filing of a Rule 60(b) motion or an appeal, to follow up on his challenge. Sanders accordingly waived his personal-jurisdiction objection and cannot now argue that it was not fully and fairly litigated.

IV.

Afassco sued Sanders in a Nevada court, eventually obtaining a default judgment in its favor for $349,492 plus an additional sum for costs and attorney fees. After Afassco domesticated the judgment in Alabama in an attempt to collect on it, Sanders moved an Alabama court for relief from the judgment, arguing that the Nevada court lacked personal jurisdiction over him. The Alabama court agreed and entered a judgment granting Sanders’s motion. However, because Sanders filed a motion in the Nevada court asking it to dismiss Afasseo’s action based on the alleged lack of personal jurisdiction, he consented to the court’s determination of that issue. He accordingly waived any right to subsequently litigate that issue in another forum. Because of that waiver, it is unnecessary to consider the substance of Sanders’s argument that the Nevada court lacked personal jurisdiction over him, and we accordingly pretermit all consideration of that issue. The judgment of the trial court is reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and PARKER, SHAW, and WISE, JJ., concur.

      . It is not clear from the record what criminal charges were brought against Sanders; however, the parties agree in their briefs that he was found not guilty on all charges at the conclusion of a jury trial held in the Houston Circuit Court. Sanders thereafter initiated an action against Afassco in the United States District Court for the Middle District of Alabama, alleging defamation, abuse of process, and malicious prosecution. Afassco asserts that Sanders’s federal action has been stayed pending the resolution of this appeal.

      . In his brief to this Court, Sanders notes that the copy of his motion to dismiss found in the record is not file-stamped by the Nevada court and that the record contains no order of the Nevada court specifically addressing his motion to dismiss. He accordingly takes the position that he merely mailed a copy of the motion to Afassco’s attorney and never actually filed or otherwise submitted it. However, Afassco has since supplemented the record to include a copy of Sanders’s motion that was stamped by the Nevada court at 2:24 p.m. on April 2, 2012.

      . Similar to Alabama courts, Nevada courts have a stated policy in favor of deciding cases on the merits, Hotel Last Frontier Corp. v. Frontier Properties, Inc., 79 Nev. 150, 155, 380 P.2d 293, 295 (1963), and judges "are afforded broad, discretion in ruling on Rule 60(b) motions [to set aside default judgments].” Kahn v. Orme, 108 Nev. 510, 513, 835 P.2d 790, 792 (1992).