author: MAXWELL, J.,

text:
    PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, Appellant v. Sherry WALKER, Appellee.
    No. 2011-SA-00719-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.
    Rehearing Denied May 14, 2013.

      Office of the Attorney General by Jane L. Mapp, attorney for appellant.
    George S. Luter, attorney for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. When faced with conflicting medical evidence of a member’s disability, the Public Employees’ Retirement System (PERS) is tasked with weighing the evidence and deciding whether the member is entitled to disability retirement benefits. If PERS finds a member is not disabled, and its decision is supported by substantial evidence, neither the circuit court nor the appellate court may inject its own judgment. This is true even if the courts would have weighed the evidence differently or arrived at a different decision. Here, the circuit judge reversed PERS’s denial of Sherry Walker’s claim for disability retirement benefits and entered an order awarding Walker these benefits. Because our review shows sufficient medical evidence supported PERS’s conclusion that Walker was not disabled, we reverse and render the judgment of the circuit court and reinstate PERS’s order denying disability benefits.

Facts and Procedural History

¶ 2. Walker taught school in the South Pike School District for thirteen years. On January 20, 1998, she fell during a classroom demonstration, injuring her hands, neck, and lower back. Shortly after, she voluntarily resigned from her teaching position and applied for duty-related disability benefits with PERS. Walker later amended her application to also request regular disability benefits.

¶ 3. Walker’s personal medical diary documented she had suffered back pain as early as 1964, maybe earlier. And she had been treated and diagnosed with similar preexisting medical conditions before her fall. She claimed the classroom fall exacerbated her preexisting degenerative disease and fibromyalgia. Though Walker alleged she could no longer write, bend, walk, or sit for an extended time, South Pike’s superintendent maintained, based on his personal observations of Walker in the classroom, that she could still perform teaching duties because she could sit or stand as needed throughout the day.

¶ 4. After her fall, Walker visited numerous physicians. She initially sought treatment from Dr. Edward Long, a chiropractor, who found Walker’s fall “aggravated, accelerated, and agitated previous symptoms which continue to keep her disabled.” He diagnosed her with a lumbro-sacral sprain, lumbar radiculitis, and eervico-bra-chial syndrome and assigned a fifty-one percent impairment rating to her body as a whole. Dr. Long found she could not climb stairs or walk for short distances, and he considered Walker’s disability permanent.

¶ 5. Walker then saw Dr. Alan Freeland, an orthopedic surgeon, for wrist and hand problems. Dr. Freeland found a majority of Walker’s problems were “systemic.” And though he found a “slightly mobile mass at the volar radial side of the left wrist,” he concluded “the remainder of the examination of the hands and wrists [was] essentially normal.” Walker declined Dr. Freeland’s recommendation to either aspirate or surgically remove the mass.

¶ 6. On May 5, 1998, Dr. James Hughes, another orthopedic surgeon, evaluated Walker for back and neck problems. He found that Walker had some discomfort in her right hip and that her lumbar spine showed some signs of loss of motion and lateral rotation. Responding to a later request from Walker’s insurance provider, Dr. Hughes observed that “[Walker] has serious preexisting conditions that certainly may prevent her from returning to [even light-duty work.” But he was careful to note — “[f]or this, her other physician should be consulted.”

¶ 7. Walker’s rheumatologist, Dr. James Hensarling, who had treated her both before and after her fall, submitted a report to PERS. His report confirmed that Walker suffered from fibromyalgia and that her blood work had shown a positive antinuclear antibody (ANA) test — -typically indicative of systemic lupus, an autoimmune disease. But Dr. Hensarling provided no prognosis. Nor did he place Walker under any restrictions. When asked whether Walker’s disability was permanent, Dr. Hensarling simply wrote, “N/A.”

¶ 8. Dr. Henry Lewis, Walker’s primary-care physician, agreed with Dr. Hensar-ling’s diagnosis of fibromyalgia and the positive ANA test. He further found Walker suffered from “chronic arthralgia” and “acute hyperlipidemia.” But unlike Dr. Hensarling, Dr. Lewis concluded Walker was permanently disabled because there is “no known cure” for her conditions. He did acknowledge, however, that Walker could still drive, climb stairs, and walk short distances without issue.

¶ 9. On November 12, 1998, Dr. Robert Van Uden independently examined Walker at her private disability carrier’s request. He concluded Walker “is currently unable to work as a full-time elementary school teacher,” but “might be able to engage in some sort of limited teaching or educational role, so long as she did not have prolonged standing, sitting, or repetitive bending.” He found Walker’s “fibromyal-gia, lupus, and chronic fatigue syndrome contributed extremely significantly to her overall disability,” while her 1998 classroom fall accounted for only “ten percent or so to her current disability.”

¶ 10. After reviewing and weighing the varied medical evidence, the PERS Medical Board denied Walker’s request for benefits. Walker appealed to the PERS Disability Appeals Committee (DAC), which after considering testimony about her medical history and present condition, also concluded Walker’s medical diagnoses were not sufficiently severe to prevent her from performing her normal work duties. Because the DAC found Walker had not satisfied her burden, it recommended the PERS Board of Trustees deny her request. The Board of Trustees adopted the DAC’s recommendation, and Walker appealed to the Hinds County Circuit Court.

¶ 11. On appeal, the circuit court reversed the Board of Trustees’ decision, finding PERS’s denial of benefits was not supported by substantial evidence. According to the circuit court, PERS imper-missibly ignored “a number of evaluations from treating doctors [who] all agreed that Walker was in no condition to return to work.” PERS now appeals.

Standard of Review

¶ 12. “Regardless of the conclusion of the circuit court, our review focuses on the agency decision.” Bynum v. Miss. Dep’t of Educ., 906 So.2d 81, 91 (¶ 19) (Miss.Ct.App.2004) (citing Miss. Dep’t of Corr. v. Harris, 831 So.2d 1190, 1192 (¶ 5) (Miss.Ct.App.2002)). And our review of an administrative agency’s decision is limited. Pub. Employees’ Ret. Sys. v. Howard, 905 So.2d 1279, 1284 (¶ 13) (Miss.2005) (citing Pub. Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 425 (¶ 11) (Miss.2000)). We will not disturb the agency’s decision unless it: “(1) is not supported by substantial evidence, (2) is arbitrary or capricious, (3) is beyond the scope or power granted to the agency, or (4) violates [the claimant’s] constitutional rights.” Pub. Employees’ Ret. Sys. v. Dishmon, 17 So.3d 87, 91 (¶ 18) (Miss.2009) (citing Marquez, 774 So.2d at 425 (¶ 11)).

¶ 13. “There is a rebuttable presumption in favor of a PERS ruling.” Pub. Employees’ Ret. Sys. v. Dishmon, 797 So.2d 888, 891 (¶ 9) (Miss.2001) (citing Brinston v. Pub. Employees’ Ret. Sys., 706 So.2d 258, 260 (¶ 6) (Miss.Ct.App.1998)). It is impermissible for an appellate or circuit court “to substitute its own judgment for that of PERS.” Id. Reviewing courts are also precluded from reweighing the facts of the case. Id.

Discussion

¶ 14. PERS argues the circuit court impermissibly reweighed the facts and substituted its judgment for the administrative agency’s. PERS insists the Board of Trustees’ decision to deny disability benefits was based on substantial evidence and should be reinstated. Walker contends, however, PERS ignored objective evidence of her disability and inexplicably failed to seek an independent medical examination.

Available Benefits and Disability Determination

¶ 15. There are two possible categories of benefits available to PERS members who have been deemed disabled — (1) regular disability benefits, payable to members with least four years of creditable service who become disabled for any reason; and (2) “hurt-on-the-job disability benefit, payable to members regardless of the number of years of creditable service, where the member becomes disabled due to an injury occurring” in a work-related accident. Dishmon, 17 So.3d at 92 (¶ 21) (citing Pub. Employees’ Ret. Sys. v. Stamps, 898 So.2d 664, 672 (¶ 24) (Miss.2005)). But before awarding either of these types of benefits, PERS must determine whether the member is disabled. Miss.Code Ann. § 25-ll-113(l)(a) (Supp.2012). This two-part statutorily mandated determination requires first that the PERS Medical Board certify the claimant is “mentally or physically incapacitated for the further performance of duty, that the incapacity is likely to be permanent, and that the member should be retired.” Miss.Code Ann. § 25 — 11—113(l)(a). And second, the Medical Board must apply the statutory definition of “disability,” which is:

[T]he inability to perform the usual duties of employment or the incapacity to perform such lesser duties, if any, as the employer, in its discretion, may assign without material reduction in compensation, or the incapacity to perform the duties of any employment covered by the [PERS] that is actually offered and is within the same general territorial work area, without material reduction in compensation.

Id. (internal citation omitted). Unless the member is deemed disabled, she is neither entitled to regular disability benefits nor hurt-on-the-job disability benefits. Pub. Employees’ Ret. Sys. v. Dean, 983 So.2d 335, 339 (¶ 16) (Miss.Ct.App.2008).

¶ 16. After sifting through competing medical records, PERS found that Walker was not disabled. So we must focus our inquiry on whether the record contains substantial evidence to support PERS’s decision. “Substantial evidence means something more than a ‘mere scintilla’ or suspicion.” Marquez, 774 So.2d at 425 (¶ 13) (citing Miss. Real Estate Comm’n v. Anding, 732 So.2d 192, 196 (¶ 13) (Miss.1999)). Substantial evidence has been further defined “as such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Id.

¶ 17. The DAC found Walker’s medical records, like those of many claimants with extensive and complicated medical histories, contained conflicting opinions as to whether she was disabled. The DAC specifically noted:

There are a lot of records in this file and several contrary opinions, several opinions about what is going on with Ms. Walker, and what is her prognosis. We recognize this. But given the total picture with the testimony of Ms. Walker, our observations of her, her choice of doctors and their specialties, the length of time they followed her, her medical records, specifically the objective MRIs and blood work, x-rays and the like, [and] this Committee’s own knowledge and experience, we believe that the most accurate assessment here is that Ms. Walker probably does have connective tissue disease[,] but she should be able to continue teaching.

The DAC acknowledged that Dr. Van Uden believed Walker was disabled as a result of fibromyalgia, lupus, and chronic fatigue syndrome. But it emphasized his lack of verification of these symptoms, noting his lack of “access to all of the lab work and testing that [the DAC had] in this record....” As the DAC saw it, “Dr. Van Uden’s opinion that Ms. Walker was disabled was fine for the insurance company, but when we consider his evaluation in light of the SED [sedimentation] rates, the ANA testing and the lack of any evidence of trigger points, his opinion carries less weight.”

¶ 18. As to Dr. Lewis, Walker’s primary-care physician, the record shows he indicated Walker could still drive, climb stairs, and walk short distances. Yet he reported to PERS that Walker’s fibro-myalgia and autoimmune diseases rendered her permanently disabled. He diagnosed Walker with “chronic fibromyalgia,” “chronic arthralgia,” “chronic positive antinuclear [antibody test],” and “acute hyper-lipidemia.” When asked to give reasons supporting his conclusion, Dr. Lewis wrote there is “no known cure — treat symptoms only.” We can only presume Dr. Lewis was referring to fibromyalgia, rather than Walker’s other conditions. However, a diagnosis of fibromyalgia, or any other disease for that matter, does not itself render a person disabled. Rather, “disability” pertains to a person’s inability to perform certain tasks or duties. Miss. Code Ann. § 25-ll-113(l)(a).

¶ 19. Dr. Hensarling, an expert on fi-bromyalgia and autoimmune diseases, who also submitted a report to PERS, offered a contrary opinion. While he, too, diagnosed Walker with fibromyalgia and a positive ANA test, Dr. Hensarling, unlike Dr. Lewis, did not conclude Walker was permanently disabled. Dr. Hensarling determined Walker could drive a car, climb stairs, and walk short distances. The DAC placed much emphasis on the fact Dr. Hensarling placed no restrictions on Walker. And while Dr. Hughes, an orthopedic surgeon, had earlier noted Walker’s preexisting conditions “certainly may prevent her from returning to work,” he was uncomfortable in labeling her disabled, and instead recommended: “For this, her other physician should be consulted.”

¶ 20. PERS’s fact-finding duties include evaluating the credibility of witnesses. Case v. Pub. Employees’ Ret. Sys., 973 So.2d 301, 311 (¶ 23) (Miss.Ct.App.2008). And when evaluating “stark[ly] contrasting]” medical opinions, it is PERS’s job “to determine which of these assessments to rely on in making its decision.” Byrd v. Pub. Employees’ Ret. Sys., 774 So.2d 434, 438 (¶ 15) (Miss.2000). Although PERS is under no obligation to request an independent medical evaluation, its decision not to do so “may constitute a factor in determining whether or not the agency has presented sufficient evidence to support its finding that the claimant is not disabled.” Dishmon, 17 So.3d at 93 (¶ 24).

¶ 21. Having vetted the contrasting, and in some instances contradictory, medical opinions over the disabling nature of Walker’s fibromyalgia and other ailments, the DAC was obviously most swayed by Walker’s rheumatologist, Dr. Hensarling. The DAC noted, “the expert in this field[, Dr. Hensarling,] did not want to limit her activity, because these types of diseases wax and wane[,] and if she will continue to work and take her medication, she will get better.” Based on its evaluation of all the information, including “the records and the testimony of Ms. Walker herself and her ability to sit quite some time during the hearing,” the DAC denied disability benefits.

¶ 22. We find Walker’s medical records contain sufficient medical evidence contradicting her disability claims. Although Drs. Lewis and Van Uden, as well as her chiropractor, concluded Walker was disabled, Dr. Hensarling, an expert on fi-bromyalgia and autoimmune diseases, who had treated Walker both before and after her fall, placed no restrictions on her — a fact the DAC found “most telling.”

¶ 23. This is admittedly a close case. But considering Dr. Hensarling’s report and notes alone, we find PERS based its decision on more than a mere scintilla of evidence or speculation. Thus, substantial evidence supports PERS’s denial of both regular and duty-related benefits. While we might have weighed the conflicting evidence quite differently than PERS, “there is a rebuttable presumption in favor of a PERS ruling.” Smith, 880 So.2d at 351 (¶ 13) (citation omitted). And neither an appellate nor circuit court may substitute its own judgment for PERS’s. Dishmon, 17 So.3d at 91 (¶ 18). Because we find the circuit court impermissibly reweighed the evidence in reversing PERS’s denial of benefits, we reverse and render the judgment of the circuit court and reinstate PERS’s order.

¶ 24. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. RUSSELL, J„ CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . First, arthralgia literally means joint pain and is a symptom, not a disease. Stedman's Medical Dictionary 149 (26th ed.1995). Second, an antinuclear antibody test screens for autoimmune diseases, but a positive ANA test is not a disease in and of itself. "While an ANA test can't confirm a specific diagnosis, it can rule out some possible diseases. And if the ANA test is positive, your blood can be tested for the presence of particular antinuclear antibodies, some of which are specific to certain diseases.” ANA test, Mayo Clinic, http://ww w.mayoclinic.com/health/ana-test/MY00787/DSECTION=why-its-done (last visited Dec. 5, 2012). Lastly, hyperlipidemia is a general term for "the presence of an abnormally large amount of lipids [ (fats) ] in the circulating blood.” Stedman’s Medical Dictionary 985 (26th ed.1995).

      . To recover duty-related benefits under Mississippi Code Annotated section 25-11-114(6) (Supp.2012), Walker had the burden of proving her disability was the direct result of either an accident or a "traumatic event.” We find substantial evidence supports PERS's decision to deny duty-related benefits because the record clearly shows Walker’s complaints of back and neck pain predate her work-related accidents by over thirty years. See Pub. Employees’ Ret. Sys. v. Smith, 880 So.2d 348, 351 (¶ 13) (Miss.Ct.App.2004) (finding substantial evidence supported PERS's finding that the claimant's disability was not the direct result of his work-related accident because he had a significant history of multiple back injuries, accidents, and medical treatments); Brinston, 706 So.2d at 260 (¶ 9) (finding there was sufficient evidence to support PERS's finding that the claimant's disability was not the direct result of her accident because many other factors may have contributed to or caused her condition and disability).


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Kenneth PAYTON, Appellant v. ROD COOKE CONSTRUCTION CO. and Associated General Contractors of MS, Inc., Appellees.
    No. 2011-WC-01100-COA.
    Court of Appeals of Mississippi.
    Feb. 19, 2013.
    Rehearing Denied Sept. 17, 2013.
    Certiorari Denied Dec. 5, 2013.
    James Kenneth Wetzel, Garner James Wetzel, Gulfport, attorneys for appellant.
    Roger C. Riddick,. Pamela S. Ratliff, Ridgeland, attorneys for appellees.
    Before GRIFFIS, P.J., CARLTON, MAXWELL and FAIR, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Kenneth Payton filed a claim for benefits with the Mississippi Workers’ Compensation Commission (“Commission”) for injuries he claimed he suffered while working for Rod Cooke Construction Company Inc. (“Cooke”). The Commission denied Payton’s request for benefits. On appeal, Payton argues that the Commission’s order is arbitrary and capricious, unsupported by substantial evidence, and contrary to law. After reviewing the record, we find that the Commission’s decision was supported by substantial evidence. Therefore, we affirm the order of the Commission.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On November 20, 2008, Payton worked as a general laborer for Patterson Construction Company (“Patterson”). Patterson was a subcontractor for Cooke, the general contractor, on a construction project in Long Beach, Mississippi. Pay-ton testified that on the morning of November 20, 2008, his duties included setting up scaffolds for the masons and providing the masons with cement and blocks. Around noon, Payton’s landlady drove to the work site and picked up Payton and some of his coworkers in her vehicle for lunch. On their way home to eat lunch, they stopped at a convenience store, where Payton purchased two twenty-four-ounce Steel Reserve beers. Pay-ton later admitted at the hearing before the administrative judge (AJ) to drinking one twenty-four-ounce beer while eating lunch; however, he claimed he gave the other twenty-four-ounce beer to his coworker. After lunch, Payton returned to the work site at approximately 1:00 p.m.

¶ 3. Around 3:00 p.m. that same day, Payton sustained an injury when he fell while cleaning a wall that he estimated was approximately twelve feet high and eight inches wide. According to Payton, he climbed onto the top of the wall from a scaffold and then crawled along the top of the wall, leaning over to wipe away splashed cement using a wet sponge. Pay-ton testified that on prior occasions, he had successfully cleaned the walls using this method without incident. However, Pay-ton later testified that on prior occasions, he “did not have to be on the wall” because he used scaffolds while cleaning the walls.

¶ 4. Payton reported the injury to his immediate supervisor, and Payton asserts his supervisor told him that he likely had suffered a sprained ankle and instructed him to go home. Payton’s landlady transported Payton home sometime between 3:30 p.m. and 3:45 p.m. Payton testified at the hearing before the AJ that once home, he drank approximately two and a half to three more beers while waiting for his brother to arrive home. Payton’s brother arrived home at approximately 4:30 p.m., and his brother then drove Payton to the hospital. Payton acknowledged at the hearing that in his deposition testimony, he initially denied having anything to drink on the date of the accident other than the beers he consumed after the injury.

¶ 5. Payton was initially seen in the emergency department of Memorial Hospital in Gulfport. While at the hospital, an alcohol test was conducted on blood obtained from Payton. Ultimately, Payton was diagnosed with a comminuted left tibia pilón fracture and underwent closed reduction and application of an external fixator.

¶ 6. Dr. William J. George, an expert in the field of toxicology and pharmacology, opined that Payton was significantly impaired and intoxicated at the time of his injury. At the hearing of this matter, Dr. George testified that Payton’s blood-alcohol level at the time of the accident was 200 milligrams percent. Dr. George further testified as follows:

Q: So, in your opinion[,] would consuming one 24-ounce beer between 12:00 and 1[:00] and two [and a] half to three 12[-]ounce beers after the accident but before going to the hospital, produce the blood[-]alcohol level shown on the testing?
A: Not with one, no.
Q: Let me ask you this. There has been a lot of testimony about what had been consumed prior to the accident. Based upon the blood test performed in the hospital around 7[:00] on the date of the accident, is Mr. Payton’s testimony consistent with the results of those tests in that he consumed one 24-ounce beer prior the accident and two [and a] half to three beers after the accident? Is that testimony consistent with the blood levels found at the hospital?
A: No. The blood levels found in the hospital were nearly, if you will, double what the level would have been based upon the testimony he gave.... If. he only has one Steel Reserve, he would never get there.

Dr. George found that Payton’s blood-alcohol level was consistent with a scenario where Payton had consumed two twenty-four ounce beers between 12:00 and 1:00 p.m., which Payton admittedly purchased that day.

¶ 7. On December 12, 2008, Payton filed a petition to controvert with the Commission, alleging that on November 20, 2008, he had received a compensable work-related injury to his left ankle while employed by Patterson. On January 14, 2009, Pay-ton filed an amended petition to controvert, naming Cooke as the appropriate employer. Cooke denied compensability and paid no workers’ compensation benefits to Payton.

¶ 8. On August 5, 2010, a hearing took place before an AJ in Gulfport, Mississippi. The AJ determined that the sole issue for determination was whether Payton was intoxicated at the time of his accident/injury and, if so, whether his intoxication constituted the proximate cause of the injury to his left ankle. The AJ ultimately found that while Payton may have been intoxicated at the time of his admission to the hospital emergency room, it was possible that Payton was not intoxicated at the time of the injury. Thus, the AJ concluded that Payton sustained a compensable work-related injury and awarded benefits for such injury to Payton.

¶ 9. On November 10, 2010, Cooke appealed the AJ’s order to the Commission. The Commission entered its decision on July 1, 2011, reversing the decision of the AJ and denying Payton’s claim.

¶ 10. Payton now appeals.

STANDARD OF REVIEW

¶ 11. “In reviewing appeals from rulings of the Workers’ Compensation Commission, this Court must resolve whether a quantum of credible evidence supports the Commission’s decision.” Union Camp Corp. v. Hall, 955 So.2d 363, 368 (¶ 23) (Miss.Ct.App.2006). “We may not resolve conflicts in the evidence. Rather, we presume that the trier of fact, the Commission, resolved all conflicts in evidence.” Id. (internal citation omitted). We employ a highly deferential standard of review. Id. “Essentially, we will overturn the Commission if its decision was arbitrary and capricious.” Id. “We will also overturn the Commission if its decision was based on an error of law or an unsupported finding of fact.” Id. In evaluating the appeal in this case, we acknowledge that the Commission remains the fact-finder.

DISCUSSION

¶ 12. Payton argues that the Commission erroneously reversed the AJ’s decision and denied him workers’ compensation benefits to which he should be entitled. Payton claims that the evidence clearly indicates that he sustained an injury while in the course and scope of his employment, and that Cooke failed to prove Payton’s intoxication at the time of his fall and that this intoxication was the proximate cause of the accident.

¶ 13. Mississippi Code Annotated section 71-3-7 (Supp.2012) states:

Compensation shall be payable for disability or death of an employee from injury or occupational disease arising out of and in the course of employment, without regard to fault as to the cause of the injury or occupational disease.
No compensation shall be payable if the use of drugs illegally, or the use of a valid prescription medication(s) taken contrary to the prescriber’s instructions and/or contrary to label warnings, or intoxication due to the use of alcohol of the employee was the proximate cause of the injury, or if it was the willful intention of the employee to injure or kill himself or another.

(Emphasis added). “As such, the defense of intoxication is a bar to recovery.” Edwards v. World Wide Pers. Servs., Inc., 843 So.2d 730, 732 (¶ 7) (Miss.Ct.App.2002).

¶ 14. Mississippi precedent recognizes that “[t]o deny workers[’] compensation benefits, the claimant’s intoxication must be the proximate cause of the accident and not just a contributing factor.” Sanderson Farms, Inc. v. Deering, 909 So.2d 1169, 1173 (¶ 19) (Miss.Ct.App.2005). “The burden is on the employer to show that the employee’s intoxication was the proximate cause of his injury.” Edwards, 843 So.2d at 733 (¶ 11) (citing Murphy v. Jac-See Packing Co., 208 So.2d 773, 777 (Miss.1968)).

¶ 15. The Commission’s order reversed the AJ’s award of workers’ compensation benefits to Payton. The Commission found as follows:

Based on the evidence as a whole, the Commission finds that the testimony of Dr. George is the most credible testimony on the issue of Claimant’s intoxication at the time of his injury. The Claimant previously denied having consumed any alcohol prior to the accident on the date of injury. Only when confronted did he subsequently admit to purchasing two 24-ounce beers shortly before the injury, an amount that was sufficient to result in the blood[-]alcohol level established by Dr. George’s findings. Although the Claimant testified that he only drank one of the 24-ounce beers prior to the injury, Dr. George found that the Claimant was intoxicated at the time of his injury, and he further found that one 24-ounce beer alone would not have been sufficient to result in the Claimant’s blood[-]alcohol level at the time of [the] injury. Based on the expert testimony of Dr. George, and the lack of credibility in the testimony of the Claimant, the Commission finds that the Claimant was intoxicated at the time of his injury to a level that his balance was impaired, and he fell while failing to perform his work in a safe manner.... [T]he Claimant’s intoxication was the proximate cause of his injury, and thus the Commission finds that the Employer/Carrier have met their burden of proof on the affirmative defense of intoxication. This claim is hereby denied and dismiss[ed] accordingly.

¶ 16. This Court recognizes the limited standard of review that appellate courts utilize when reviewing factual findings of the Commission. Hall, 955 So.2d at 368 (¶ 23). We recognize that this Court is not the trier of fact, and, absent any error of law, we only reverse where the Commission’s decision lacks the requisite eviden-tiary support of substantial evidence. Id. In this case, the record demonstrates that substantial evidence exists to support the Commission’s factual finding that Payton’s intoxication was the proximate cause of his injury. See Miss.Code Ann. § 71-3-7; see, e.g., Deering, 909 So.2d at 1173 (¶¶ 19-21) (finding that the evidence did not support the Commission’s finding that the claimant’s intoxication was not the proximate cause of his injury); Edwards, 843 So.2d at 733-34 (¶ 13) (affirming the denial of benefits to the claimant because his intoxication constituted the cause of his injury). As such, we find no error in the Commission’s decision to deny benefits to Payton.

CONCLUSION

¶ 17. This Court is of the opinion that the Commission’s decision was supported by substantial evidence. Therefore, we affirm the order of the Commission.

¶ 18. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      .Payton testified that after the walls are erected using blocks and mortar, cement is then poured into the hollow spaces of the blocks from the top using a hose. As a result, wet cement will sometimes splash or splatter on the sides of the concrete-block walls near the top and must be wiped away while still wet.

      . Payton testified that he drank between one-half and three-quarters of his third beer which he did not finish before leaving to go to the hospital.

      . Payton testified that before the date of his injury, he regularly consumed a six-pack of beer every day, some days drinking as much as a twelve-pack of beer.

      . The AJ’s order notes that Patterson was the subcontractor of Cooke, and that Patterson was uninsured at the time of Payton’s alleged injury.


author: ROBERTS, J.,

text:
    William RODWELL, Thomas Easter, Charles Tomasello and Cal Investments, LLC, Appellants v. Dennis STIEFFEL, Appellee.
    No. 2011-CA-01218-COA.
    Court of Appeals of Mississippi.
    March 12, 2013.
    Rehearing Denied Aug. 13, 2013.
    Certiorari Denied Dec. 5, 2013.

      Eric D. Wooten, Gulfport, attorney for appellants.
    Nicholas Van Wiser, Biloxi, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. This appeal stems from a July 19, 2011 final judgment entered by the Harrison County Circuit Court in favor of the plaintiff, Dennis Stieffel, against the defendants, William Rodwell, Thomas Easter, Charles Tomasello, and CAL Investments LLC (collectively “CAL Investments”). The final judgment ordered a recovery in the amount of $193,217.43 to Stieffel with interest to accrue at 8% per annum. On appeal, this Court is asked by CAL Investments to determine whether the circuit court erred by granting summary judgment in favor of Stieffel on a second promissory note and settlement agreement payable to Stieffel when there were genuine issues of material fact in dispute about the promissory note, and whether CAL Investments was denied due process by not receiving notice and an opportunity to defend the claims. We affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2008, CAL Investments was in the real estate development business and rented office space from Stieffel. The principals of CAL Investments are Rod-well, Easter, and Tomasello. CAL Investments fell behind on its rent payments, and at the time it vacated the office space, it owed approximately $40,000 to Stieffel in past-due rent. On May 14, 2008, CAL Investments and its principals executed a promissory note (Note 1) payable to Stief-fel for its overdue rent. The principal sum due was $41,157.61 with 8% interest per annum. Note 1 also contained a late-fee provision that required CAL Investments to pay $50 per day per delinquent payment.

¶ 3. CAL Investments failed to make any payments under Note 1. Over time, the total balance owed by CAL Investments grew to $88,138.07 due to late fees and interest. CAL Investments persuaded Stieffel to enter into a Confidential Settlement Agreement and Full and Final Release (CSA) expressly settling and releasing all claims under Note 1. As consideration for the CSA, CAL Investments executed a new promissory note (Note 2). CAL Investments again failed to honor any of the terms of Note 2 or the CSA. Shortly thereafter, on May 12, 2009, Stief-fel filed a complaint against CAL Investments for breach of Note 1 and to collect the sum due to him in the amount of $88,138.07 plus interest and penalties.

¶ 4. On June 11, 2009, CAL Investments filed its answer and raised numerous affirmative defenses, including the following: set-off and contribution, ratification and accord and satisfaction, doctrines of laches and estoppel, and settlement and release. Its answer also included a motion to dismiss on the ground that the CSA had released CAL Investments from liability under Note 1. CAL Investments attached copies of the CSA and Note 2 as exhibits to its answer and affirmative defenses. Almost a year later on September 5, 2010, Stieffel filed a motion for summary judgment claiming there was no genuine issue of material fact that Note 1 was still enforceable because he never signed the CSA, received original copies of the CSA, or received the $10,000 payment required upon the execution of the CSA. Thus, Stieffel claimed the CSA was never properly executed and did not serve as a release or accord and satisfaction of CAL Investments’ liability on Note 1. CAL Investments responded to Stieffel’s motion for summary judgment and claimed that the CSA was valid and settled all claims as to Note 1. The circuit court held a hearing on the summary-judgment motion on August 13, 2010.

¶ 5. At the hearing, Stieffel requested that the circuit court grant summary judgment in his favor on Note 1, “or[,j in the alternatively,] if the [circuit c]ourt determines that there exist[s] a genuine issue of material fact[,] that [the circuit court] enter a judgment for the amount that [CAL Investments has] confessed [is] due and owing under the terms of [Note 2 and the CSA].... ” CAL Investments reiterated that Note 1 was settled and released by the execution of Note 2 and the CSA. As evidence, it submitted Note 2, the CSA, and emails between the parties’ attorneys negotiating the terms of Note 2 and the CSA. It also argued that if Note 1 was enforceable, then the late fees imposed were unconscionable, excessive, and penal in nature. After hearing from both parties, the circuit court said: “[I]f I were to assume that [CAL Investments’ argument] is correct ... [that the CSA released it from liability on Note 1,] then is this court in a position that it is to now ... enforce the settlement?] ” (Emphasis added). The circuit court requested both Stieffel and CAL Investments provide it with “anything additional” on that issue.

¶ 6. On August 27, 2010, as the circuit court requested, CAL Investments filed a memorandum of authorities in support of its opposition to Stieffel’s motion for summary judgment. In the memorandum, CAL Investments again reiterated its position that the execution of the CSA settled all issues related to Note 1; however, it noted that whether or not an attorney had agreed to a settlement on his client’s behalf is a question of fact sufficient to preclude granting summary judgment in Stieffel’s favor. The memorandum also alleged that the late fees on Note 1 were unconscionable and should not be enforced against CAL Investments. Lastly, CAL Investments’ memorandum claimed that the circuit court could not enter a judgment in favor of Stieffel on Note 2 because Stieffel did not mention the facts of Note 2 and the CSA in his complaint, nor did he request relief on Note 2 in either his complaint or motion for summary judgment. The memorandum did not address whether any of the fees or provisions in Note 2 and the CSA were unenforceable against CAL Investments.

¶ 7. The circuit court entered its order on September 20, 2010, finding that Note 2 and the CSA were validly executed and binding on the parties; as a result, Note 1 was no longer enforceable. As to Note 2 and the CSA, the circuit court stated:

[CAL Investments has] in effect sought enforcement of the settlement agreement. In other words, [it has] raised the settlement as a defense to having to pay any claims related to [Note 1] and [has] sought to enforce that settlement to prevent [Stieffel] from recovering on [Note 1]. As [CAL Investments has] argued, the agreement reached by the attorneys is enforceable as to [Stieffel], It is also enforceable as to [CAL Investments].
[CAL Investments] cannot rely on the [CSA] and yet disavow [its] obligations under that agreement. The issue has been properly raised by [CAL Investments] in its [a]nswer, its [m]otion to [d]ismiss[,] and its response to [the motion for summary judgment].

Ultimately, the circuit court denied Stief-fel’s motion for summary judgment as to Note 1 but granted summary judgment in favor of Stieffel as to the enforcement of Note 2 and the CSA.

¶ 8. On September 30, 2010, CAL Investments filed a motion for reconsideration or, in the alternative, a motion to alter or amend the judgment, claiming that the issue of the enforcement of Note 2 and the CSA was not properly before the circuit court and that it did not have the opportunity to argue that the late fees on Note 2 were a violation of Mississippi law. Then, on January 18, 2011, after employment of new counsel, CAL Investments filed a memorandum in support of its September 30, 2010 motions. In this memorandum, it claimed it was taken by surprise when the circuit court granted summary judgment in favor of Stieffel on Note 2 and the CSA because it never had the opportunity to defend the enforcement of Note 2 and the CSA. The circuit court entered an order on March 22, 2011, denying CAL Investments’ September 30, 2010 motions. The circuit court did permit CAL Investments an additional fifteen days to brief the issue of the unconscionability of Note 2’s late-fee provisions; Stieffel was given fifteen days from the day CAL Investments’ brief was submitted to respond.

¶ 9. On July 19, 2011, the circuit court entered its final judgment requiring CAL Investments to pay Stieffel $193,217.43 in damages, with interest to accrue at 8% per annum. Feeling aggrieved, CAL Investments appealed. In its brief, CAL Investments asserts twenty-two issues; however, all these issues can be combined into two general categories:

I. Summary judgment was not justified under Mississippi Rule of Civil Procedure 56.
II. [CAL Investments was] not allowed reasonable opportunity to defend against the enforcement of Note 2 [and the CSA].

ANALYSIS

¶ 10. When reviewing a circuit court’s decision to grant or deny a motion for summary judgment, we apply a de novo standard of review. Moss v. Batesville Casket Co., 935 So.2d 393, 398 (¶ 15) (Miss.2006). The evidence is viewed in the light most favorable to the nonmoving party. Dailey v. Methodist Med. Ctr., 790 So.2d 903, 907 (¶ 3) (Miss.Ct.App.2001) (citing Roebuck v. McDade, 760 So.2d 12, 14 (¶ 9) (Miss.Ct.App.1999)). “The burden of showing that no genuine issue of material fact exists lies with the moving party, and we give the benefit of every reasonable doubt to the party against whom summary judgment is sought.” Id.

I. Summary Judgment

¶ 11. CAL Investments requests this Court reverse and remand this case for a trial on the merits because the circuit court erroneously granted summary judgment on the enforceability of Note 2 and the CSA. Pursuant to Mississippi Rule of Civil Procedure 56(c), summary judgment should only be granted when there is no genuine issue of material fact. “[T]he [circuit] court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried.” Brown v. Credit Ctr. Inc., 444 So.2d 358, 362 (Miss.1983).

¶ 12. CAL Investments asserts that there was a factual dispute as to whether Note 2 and the CSA were enforceable, and this dispute was sufficient to require the circuit court to deny summary judgment. Further, CAL Investments asserts that by raising Note 2 and the CSA as an affirmative defense to Note 1, it did not intend to have Note 2 and the CSA’s enforceability raised as an issue, nor did it consent to amending Stieffel’s complaint to reflect this new claim. It additionally argues that it was denied due process on claims regarding enforceability of Note 2 and the CSA because these issues were not in Stieffel’s original complaint and were not raised until the summary-judgment hearing. Thus, CAL Investments claims it did not have proper notice and a reasonable opportunity to defend against these claims. In its second issue, CAL Investments argues that the circuit court erred in not considering its claim that the fees on Note 2 were usurious, making Note 2 and the CSA unenforceable. This argument is actually the second prong to CAL Investments’ claim that it was denied due process because it did not have a reasonable opportunity to be heard on its defenses to the enforcement of Note 2 and the CSA. We will address all of CAL Investments’ due-process claims later in this opinion.

¶ 13. After a thorough review of the record, we affirm the circuit court’s denial of Stieffel’s motion for summary judgment on Note 1 because we conclude no genuine issue of material fact exists that Note 2 and the CSA acted as a valid settlement and release of Note 1. We further affirm the circuit court’s decision to enforce the terms of Note 2 and the CSA after it determined that a settlement and release, or accord and satisfaction, existed on Note 1.

¶ 14. CAL Investments’ primary argument is that there was a factual dispute as to whether Note 2 and the CSA were enforceable. It claims this dispute was sufficient to require the circuit court to deny summary judgment and have a jury determine whether Note 2 and the CSA acted as a settlement and release of Note 1. We disagree. At the summary-judgment hearing, CAL Investments presented a series of emails between its attorney and Stieffel’s attorney. The emails discussed the negotiations regarding Note 2 and the CSA. As proof that Stieffel had agreed to Note 2 and the CSA, CAL Investments submitted an email from Stief-fel’s attorney stating that once certain changes were made, Note 2 and the CSA would be “good to go.” It is well settled that “[a]n attorney is presumed to have the authority to speak for and bind his client.” Parmley v. 84 Lumber Co., 911 So.2d 569, 573 (¶ 19) (Miss.Ct.App.2005) (citing Fairchild v. Gen. Motors Acceptance Corp., 254 Miss. 261, 265, 179 So.2d 185, 187 (1965)). There is no factual dispute that these emails were sent and received, and, legally, Stieffel’s attorney had the authority to bind Stieffel to Note 2 and the CSA. As such, there is no question of material fact that Stieffel’s attorney entered into Note 2 and the CSA, resulting in the settlement and release of Note 1. The circuit court was correct in denying Stieffel’s motion for summary judgment on the enforcement of Note 1 by finding that Note 2 and the CSA were binding and served as a valid settlement, release, and accord and satisfaction of Note 1.

II. Due Process

¶ 15. Next, CAL Investments argues that it was denied due process because the claims involving enforcement of Note 2 and the CSA were not raised in Stieffel’s original pleading; therefore, it did not have notice or an opportunity to present any defenses to the enforcement of Note 2 and the CSA. We find this argument unpersuasive.

¶ 16. CAL Investments was the party that initially raised Note 2 and the CSA’s enforceability by affirmatively pleading that the documents acted as a settlement and release or accord and satisfaction of Note 1. Then, at the summary-judgment hearing, Stieffel asked the circuit court

to resolve the motion for summary judgement in favor of [Stieffel] and enter a judgment in the amount of $257, 517.21 or [] in the alternative [] if the [circuit cjourt determines that there exist a genuine issue of material fact [] that [the circuit court] enter a judgment for the amount that [CAL Investments has] confessed [is] due and owing under the terms of [Note 2 and the CSA] ...

(Emphasis added). The circuit court permitted the parties to submit anything additional that was necessary on the issue of whether, if Note 1 was found to be settled and released, the circuit court could enforce Note 2 and the CSA. Clearly, CAL Investments had notice of the claims and an opportunity to be heard on the issue. CAL Investments affirmatively raised the issue on its own and was given an opportunity to provide the circuit court with information regarding the enforceability of Note 2 and the CSA. Instead, it chose not to raise any defenses of usury or uncon-scionability as to the late fees on Note 2 at that time. It represented to the circuit court that Note 2 was a binding obligation that served as valid consideration for the CSA. We cannot see how CAL Investments can claim its due-process rights were violated.

¶ 17. CAL Investments also claims that the circuit court erred in not considering its usury defenses raised in its memorandum in support of its motion for reconsideration. This memorandum was filed more than ten days after the circuit court entered its order and judgment; thus, the circuit court was correct that the issue of usury in regard to Note 2 was not appropriately before the circuit court for review. Ultimately, CAL Investments had notice that enforcement of Note 2 and the CSA was an issue, and the circuit court gave both parties sufficient opportunity to address the enforceability issue, including any possible defenses; therefore, there is no error.

¶ 18. Additionally, we conclude that the doctrine of judicial estoppel prevents CAL Investments from arguing that the CSA and Note 2 are now unenforceable. The purpose of the doctrine of judicial estoppel is to ensure “orderliness, regularity!,] and expedition of litigation[.]” Great S. Box Co. of Miss. v. Barrett, 231 Miss. 101, 112, 94 So.2d 912, 916 (1957). Over a decade ago, the United States Supreme Court in New Hampshire v. Maine, 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001), discussed the historical roots and purpose of the doctrine of judicial estoppel. It recognized that “circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle,” but several factors typically inform the process: (1) the “later position must be ‘clearly inconsistent’ with [the party’s] earlier position,” (2) the party must have persuaded a court to accept the earlier position, and (3) the party “would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id. at 750-51, 121 S.Ct. 1808 (internal citations omitted). The Supreme Court quoted with approval language from a Third Circuit case that the doctrine prohibits litigants from playing “fast and loose with the courts.” Id. at 750, 121 S.Ct. 1808 (quoting Scarano v. Cent. R. Co., 203 F.2d 510, 513 (3d Cir.1953)). The doctrine states, “a party to litigation will not be permitted to assume inconsistent or mutually contradictory positions with respect to the same matter in the same or a successive series of suits.” Scarano, 203 F.2d at 513. CAL Investments raised as affirmative defenses to the enforcement of Note 1 that Note 2 and the CSA acted as settlement and release of claims regarding Note 1. The circuit court agreed with this argument and denied summary judgment to Stieffel on Note 1 and enforced Note 2 and the CSA. CAL Investments cannot now argue that Note 2 and the CSA are unenforceable. Moreover, it appears the applicable three-year statute of limitations has run, effectively preventing Stieffel from attempting to collect on Note 2 by way of a new suit. To allow CAL Investments to now argue that Note 2 and the CSA are unenforceable, a position inconsistent with its affirmative defenses, would thwart the purpose and logic of the doctrine of judicial estoppel.

¶ 19. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. IRVING, P.J., AND JAMES, J., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      . Rodwell, Easter, and Tomasello signed all the discussed documents individually and on behalf of CAL Investments LLC. Therefore, in this opinion, we will collectively refer to the appellants as CAL Investments.


text:
    Wanda GORDON, Appellant v. Charles T. GORDON, Appellee.
    No. 2012-CA-00239-COA.
    Court of Appeals of Mississippi.
    May 21, 2013.
    Rehearing Denied Aug. 27, 2013.
    Certiorari Denied Dec. 5, 2013.

      Sam Houston Buchanan Jr., Carolyn Ann Geary, attorneys for appellant.
    M. Channing Powell, Gulfport, attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Wanda and Charles Gordon were divorced based on their irreconcilable differences. They entered a consent agreement and indicated that the Harrison County Chancery Court needed to resolve one issue regarding whether Wanda had misappropriated or wasted $46,000 of marital income. The chancellor awarded the couple a divorce and reserved ruling on the unresolved issue. Approximately six years later, the chancellor set aside the divorce based on Wanda’s request. Wanda argued that the chancellor should have adjudicated issues related to child support of the couple’s child who had since reached the age of majority, child support of Wanda’s great-nephew, and distribution of Charles’s military retirement. The chancellor clarified that Wanda had expressly agreed that the chancellor only had to determine whether Wanda had misappropriated $46,000 in marital income, and Charles had agreed to withdraw that issue. Consequently, the chancellor entered a judgment of divorce nunc pro tunc, and backdated the judgment to correspond with the date of the original judgment of divorce.

¶ 2. Wanda appeals and argues that the chancellor erred when he did not divide Charles’s military retirement. Wanda also claims the chancellor erred when he entered a judgment of divorce without addressing the custody or support of her son, who had reached the age of majority, or her great-nephew. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Charles and Wanda were married in 1980. They separated on February 1, 2004. Charles and Wanda both filed complaints for divorce, but they later filed a joint motion to dismiss their fault-based grounds and agreed to a divorce based on irreconcilable differences. They also filed a document styled as a “consent to irreconcilable differences.” Within that document, Charles and Wanda indicated that the chancellor needed to adjudicate one issue: “Whether or not [Charles] is entitled to receive money from [Wanda].” Charles and Wanda both signed the document. Their attorneys also signed it.

¶4. On November 8, 2004, the parties went before the chancellor. Charles and Wanda both testified. Charles, who was an active-duty Navy corpsman, testified that Wanda had misappropriated $46,000 while he had been deployed to Iraq, Afghanistan, and Spain. At the time of the hearing, Wanda and Charles had one minor child who was slightly less than eighteen years old. However, he was living in Virginia with his sister, who had reached the age of majority. Wanda and Charles also testified that they had some degree of custody of Wanda’s great-nephew, Dakota Austin Straeener. Dakota was seven years old at the time of the November 2004 hearing. According to Wanda, Dakota’s father had been paying $110 per month in child support through a government program.

¶ 5. After Wanda’s testimony, the chancellor asked the attorneys to go through the couple’s financial records to reconcile Charles’s claim that Wanda had misappropriated approximately $46,000 of their money. The chancellor later went back on the record and said that “insufficient discovery was conducted.” The chancellor added that “there’s no way [he could] properly adjudicate this matter with the evidence before [him] and, therefore, it’s in the parties^] best interest that this case be continued to a later date.” However, the chancellor decided to “go ahead and grant the divorce ..., just so that [Charles and Wanda] can get that out of the way.” Additionally, the chancellor ordered Wanda to take a drug test immediately after leaving the hearing. Wanda complied. Her drug test indicated that she was “methamphetamine positive.”

¶ 6. On December 17, 2004, the chancellor entered a judgment nunc pro tunc and awarded Wanda and Charles a divorce based on their irreconcilable differences. The judgment also said that the chancellor retained “jurisdiction to adjudicate those matters pertaining to the division of property and support and maintenance of the one remaining minor child of the parties.”

¶ 7. On January 31, 2005, Wanda filed a motion to set aside the chancellor’s judgment. Approximately one year later, Wanda requested a final ruling. Within her request, she stated that the chancellor had reserved ruling on the division of Charles’s military retirement. Wanda’s request seems to imply that she had not requested a ruling earlier due to the effects of Hurricane Katrina.

¶ 8. On November 16, 2010, the chancellor conducted a hearing on Wanda’s motion to set aside the divorce judgment. The chancellor concluded that he had inappropriately awarded a divorce when there was an unresolved issue still pending. On December 1, 2010, the chancellor entered an order setting aside the divorce judgment. Charles then filed a motion to reinstate the divorce, but the chancellor denied Charles’s motion. However, the chancellor held that he could award a divorce if Charles chose to withdraw his claim that Wanda had misappropriated $46,000, which was the only unresolved issue before the chancellor. Charles complied. On August 31, 2011, the chancellor entered a judgment of divorce nunc pro tunc that backdated the divorce to December 17, 2004. Wanda appeals. She claims the chancellor should not have granted a divorce without resolving certain issues related to the division of marital property and debts and child support and child custody.

STANDARD OF REVIEW

¶ 9. “In domestic relations cases, the appellate court’s scope of review is limited by the substantial evidence/manifest error rule.” Stigler v. Stigler, 48 So.3d 547, 551 (¶ 7) (Miss.Ct.App.2009) (quoting Samples v. Davis, 904 So.2d 1061, 1063-64 (¶ 9) (Miss.2004)). “We will not disturb the chancellor’s opinion when it is supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id. (citation omitted). However, we review questions of law de novo. Id. (citing Amiker v. Drugs for Less, Inc., 796 So.2d 942, 945 (¶ 7) (Miss.2000)).

ANALYSIS

¶ 10. Despite having executed a consent agreement stating that the chancellor had one issue to resolve — whether Wanda owed Charles money that he claimed she had misappropriated — Wanda claims the chancellor erred when he did not resolve issues related to the distribution of marital property, custody and support of the couple’s son, and support of her great-nephew. Wanda’s argument is primarily based on the following language from Mississippi Code Annotated section 93-5-2(3) (Supp. 2012):

No divorce shall be granted pursuant to this subsection until all matters involving custody and maintenance of any child of that marriage and property rights between the parties raised by the pleadings have been either adjudicated by the court or agreed upon by the parties and found to be adequate and sufficient by the court and included in the judgment of divorce.

According to Wanda, it is irrelevant that she expressly stated that the chancellor was only required to resolve one issue. Wanda claims the chancellor should have conducted an equitable distribution of marital property — specifically, Charles’s military retirement. Wanda also claims the chancellor should have established custody and support of the couple’s son and determined whether Charles should have to pay her child support for her great-nephew.

I. MILITARY RETIREMENT

¶ 11. It bears repeating that prior to the original hearing date, Wanda signed a consent agreement and stated that the chancellor only needed to resolve one disputed issue related to whether Wanda had misappropriated $46,000 from Charles. The couple did not own a home. The record indicates that they had one vehicle that Charles had purchased for less than $3,000. During 2004, Charles testified that when he returned from his deployment, Wanda had sold all of his fishing equipment and their computer, and she had lent their vehicle to her sister. Charles also accused Wanda of abusing narcotics. Charles had reported his suspicions to authorities. According to Charles, his report resulted in a search of the couple’s home. Charles also testified that drug dogs had recovered four bags of some form of narcotics from the home, but the authorities had not informed him precisely what those narcotics were. When Wanda submitted to a court-ordered drug test, she tested positive for methamphetamine. Wanda may have chosen not to press her concerns regarding equitable distribution of Charles’s military retirement more vigorously in 2004 due to her relatively weaker bargaining position, considering she had recently tested positive for methamphetamine. In any event, the fact remains that during the 2004 hearing, Wanda never indicated that the chancellor needed to divide Charles’s military retirement or any other marital property.

¶ 12. As of May 2011, Wanda and Charles had been living separately for more than seven years. They had already divided their property. Charles withdrew his claim that Wanda had misappropriated $46,000 so the chancellor could award a divorce after setting aside the 2004 divorce. That was the sole issue that Wanda and Charles asked the chancellor to resolve. Because Wanda never asked the chancellor to divide Charles’s military retirement, there is no merit to Wanda’s claim.

II. CHILD SUPPORT

¶ 13. As previously mentioned, Wanda claims the chancellor erred when he awarded a divorce based on irreconcilable differences despite the fact that Wanda and Charles did not have a written agreement that addressed child support and child custody. Wanda argues that the chancellor failed to fulfill his obligations under section 93-5-2(3). According to Wanda, this Court should reverse the chancellor’s judgment and remand this matter to the chancery court.

¶ 14. When Wanda and Charles divorced in 2004, their son, Tommy, was slightly less than eighteen years old. However, Tommy did not live with Wanda or Charles. Instead, he lived in Virginia with his sister, who was not a minor during the 2004 proceedings. In 2004, the chancellor ordered Wanda and Charles to pay child support to their daughter for Tommy’s benefit. There are no allegations that Charles or Wanda failed to fulfill their child-support obligations.

¶ 15. Tommy is no longer a minor. Consequently, Wanda and Charles are no longer obligated to pay child support for him. See Miss.Code Ann. § 93-ll-65(8)(a) (Supp.2012) (“The duty of support of a child terminates upon the emancipation of the child. Unless otherwise provided for in the underlying child support judgment, emancipation shall occur when [a] child ... [ajttains the age of twenty-one ... years[.]”) Technically, the chancellor erred in 2004 when he granted the divorce without addressing custody or support of Tommy. However, the chancellor’s error is harmless. See Rounsaville v. Rounsaville, 732 So.2d 909, 912 (¶ 11) (Miss.1999). Furthermore, “[t]he supreme court has stated that ‘cases in which an actual controversy existed at trial but the controversy has expired at the time of review, become moot.’ ” Cossey v. Cossey, 22 So.3d 353, 357 (¶ 17) (Miss.Ct.App.2009) (quoting Allred v. Webb, 641 So.2d 1218, 1220 (Miss.1994)).

¶ 16. Wanda also argues that the chancellor should have ordered Charles to pay child support for Wanda’s great-nephew, Dakota. Wanda’s counterclaim for divorce indicated that she and Charles received “legal custody” from the “Family Court of Charleston County, South Carolina.” Although Wanda claimed that she had attached documentation regarding her custody of Dakota to one of her pleadings, no such documents appear in the record. As a result, the scope of Wanda’s “custody” of Dakota is unclear. Additionally, we are unable to confirm that those “custody” rights extended to Charles. However, Wanda testified that she received $110 per month in child support from Dakota’s father.

¶ 17. Wanda cites no authority that would require Charles to support his great-nephew by marriage. Wanda’s failure to cite authority to support her argument renders this issue proeedurally barred. See Crawford v. Butler, 924 So.2d 569, 576 (¶ 24) (Miss.Ct.App.2005). Because this issue is proeedurally barred, we will not disturb the chancellor’s decision.

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

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

      . The nature of Wanda and Charles’s custody of Wanda’s great-nephew is not clear. The record seems to indicate that they had legal custody of the child, but the record is silent regarding the nature of the proceedings through which Wanda and Charles had obtained legal custody of the child. Furthermore, it is unclear whether Wanda and Charles actually had joint legal custody of the child.

      . The chancellor had announced his policy that he did not allow people who were on drugs to retain custody of children. The record does not indicate whether Dakota was removed from Wanda's custody.


text:
    Charlie BLOUNT a/k/a Charlie Blunt a/k/a Charlie Blout, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01650-COA.
    Court of Appeals of Mississippi.
    Aug. 20, 2013.
    Rehearing Denied Nov. 26, 2013.

      Charlie Blount, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. This court recently affirmed Charlie Blount’s direct appeal of his motor-vehicle-theft conviction and his life sentence as a habitual offender. While that appeal was pending, Blount filed a motion for post-conviction relief (PCR) in the Hinds County Circuit Court. His PCR motion challenged his various previous convictions and sentences but primarily attacked the court’s imposition of an enhanced sentence for his 1996 cocaine-possession conviction. The circuit judge summarily dismissed his PCR motion as time-barred. After reviewing the record and finding no applicable exceptions to the three-year statute of limitations, we too find the PCR motion was time-barred and properly dismissed. Thus, we affirm.

Facts and Procedural History

¶ 2. Blount’s string of felony convictions began in 1993, when he pled guilty in the Hinds County Circuit Court to three separate felonies — (1) simple assault of a law enforcement officer, (2) accessory after the fact to grand larceny, and (3) receiving stolen goods. The circuit judge accepted his three guilty pleas and sentenced Blount to five years on each count, with the sentences running concurrently.

¶ 3. In 1996, while still serving these sentences, Blount was tried by a jury and convicted of another felony — cocaine possession. He was sentenced to three years’ imprisonment on this drug charge as a habitual offender. See Miss.Code Ann. § 99-19-81 (Rev.2007) (imposing the maximum term of imprisonment for the current felony conviction where the defendant had been “convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times” and sentenced to separate terms of one year or more). Most recently, on April 15, 2011, a jury found Blount guilty of motor-vehicle theft, his fifth separate felony conviction. Because Blount had previously been convicted of at least two felonies, one of which was a crime of violence (simple assault on a law enforcement officer), and had served separate sentences of one or more years, the trial judge sentenced him as a habitual offender to a mandatory term of life imprisonment. See Miss.Code Ann. § 99-19-83 (Rev.2007).

¶ 4. We upheld Blount’s 2011 vehicle-theft conviction and life sentence on direct appeal, rejecting his argument that his conviction for simple assault did not involve an assault on a law enforcement officer and thus did not qualify as a crime of violence for habitual-offender status. Blount v. State, 111 So.3d 1216, 1222 (¶ 22) (Miss.Ct.App.2012) (rehearing denied Feb. 5, 2013, and certiorari denied May 2, 2013). But while his appeal was pending, Blount filed a PCR motion in the circuit court under cause number 94-3-38, which concerned his 1996 cocaine-possession charge.

¶ 5. Though Blount had already served the three-year sentence for this drug offense, he claimed the multiple felony convictions supporting the application of an enhanced sentence had not arisen out of separate incidents as required by section 99-19-81. Blount later amended his PCR motion to challenge each of his five prior felony convictions — including his 2011 motor-vehiele-theft conviction and sentence, which at the time were on direct appeal and had not yet been ruled upon by this court.

¶ 6. The circuit judge found that Blount impermissibly sought to challenge multiple criminal judgments in a single PCR motion. See Miss. Code Ann. § 99-39-9(2) (Supp.2012). So noting that Blount had styled his PCR motion under the cause number for his 1996 drug conviction and sentence, the court limited its review to that case. And because Blount had filed his PCR motion well over ten years after the applicable statute of limitations had run, the circuit court dismissed his PCR motion as time-barred.

I. Procedural Bar

¶ 7. Section 99-39-9(2) clearly limits a PCR motion “to the assertion of a claim for relief against one (1) judgment only.” This means that “a separate motion for post-conviction relief must be filed for each cause number or conviction.” Bell v. State, 2 So.3d 747, 749 (¶ 5) (Miss.Ct.App.2009). Thus, Blount could not attack in the same PCR motion his convictions or sentences handed down under different cause numbers. See Hundley v. State, 803 So.2d 1225, 1229 (¶ 9) (Miss.Ct.App.2001) (instructing that section 99-39-9(2) requires separate PCR motions to attack guilty pleas in two different cause numbers, even though the pleas are taken in the same hearing). But that is what he attempted to do.

¶ 8. We find the circuit court’s decision to limit its PCR review to Blount’s 1996 drug sentence is entirely consistent with section 99-39-9(2) and precedent. Thus, we too limit our review to Blount’s challenge to his 1996 sentence. We begin by considering the timeliness of his appeal.

II. Timeliness of Appeal

¶ 9. The State claims Blount’s appeal of his PCR motion’s dismissal is untimely. Under Mississippi Rule of Appellate Procedure 4(a), a notice of appeal must be filed with the clerk of the circuit court within thirty days after the date of entry of the judgment or order appealed from. The timely filing of a notice of appeal is jurisdictional. So if Blount’s notice of appeal was not timely filed, we have no jurisdiction to hear his appeal. See M.R.A.P. 4(a).

¶ 10. While it is clear Blount filed his notice of appeal on March 1, 2012, there is some confusion as to the date the circuit judge actually filed the order from which Blount appeals. According to the record, the order denying PCR relief is dated and stamped “filed” January 13, 2012. If this is so, then Blount’s notice of appeal is untimely. But Blount points to a copy of that same order, which is also dated as having been signed on January 13, 2012, by the circuit judge, but is stamped “filed” February 8, 2012, by the Hinds County Circuit Clerk. If this “second” order was indeed “filed” on February 8, 2012, then Blount had until March 8, 2012, to file his notice of appeal — a deadline he met.

¶ 11. Because of this ambiguity, we find the interests of justice weigh against imposing Rule 4(a)’s strict deadline in this instance. Thus, we exercise our discretion under Mississippi Rule of Appellate Procedure 2(c) to consider Blount’s appeal of the dismissal of his PCR motion. See M.R.A.P. 4 cmt. Still, after review, we find we need not reach the merits of Blount’s PCR challenge since we agree with the circuit judge that Blount filed his PCR motion far too late to survive the statutory time-bar.

III.Statutory Time-Bar

¶ 12. “Under [Mississippi Code Annotated section 99-39-5(2) (Supp. 2012) ], a movant has three years to file a PCR motion, and failure to file a PCR motion within the three years is a procedural bar.” Brandon v. State, 108 So.3d 999, 1004 (¶ 12) (Miss.Ct.App.2012) (citing White v. State, 59 So.3d 633, 635 (¶ 6) (Miss.Ct.App.2011)). Here, Blount’s challenge to the April 4, 1996 drug sentence was not filed until August 26, 2011 — than fifteen years after the sentence was imposed. So Blount’s PCR motion is undoubtedly time-barred.

¶ 13. There are, however, several statutory and judicially created exceptions to the legislatively imposed time-bar. Section 99-39-5(2)(a)-(b) exempts from the time-bar cases in which the movant can demonstrate new evidence not available at trial, an intervening higher-court decision, or that the movant is being detained on an expired sentence. In addition to these codified exceptions, our supreme court has deemed the procedural bars of the Uniform Post-Conviction Collateral Relief Act inapplicable to “errors affecting fundamental constitutional rights.” Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss.2010).

¶ 14. But while these exceptions do exist, it is the movant’s burden to prove an exception applies. White v. State, 59 So.3d 633, 635 (¶ 8) (Miss.Ct.App.2011) (citations omitted). And here, Blount has failed to offer any proof to show either the statutory or judicially created exceptions apply. Though Blount insists his already-served 1996 drug sentence was illegal because the three underlying felonies arose from a single incident, he offers no record support for his claim. He has not attached transcripts from his three prior guilty pleas, nor has he provided any affidavits to support his argument. Instead, we have only Blount’s assertions, which alone are insufficient to overcome the procedural time-bar. Hughes v. State, 106 So.3d 836, 839 (¶ 8) (Miss.Ct.App.2012). Lacking any proof of a statutory or judicially created exemption to the three-year time-bar, we affirm the dismissal of Blount’s PCR motion.

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

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


text:
    Angela RIGDON a/k/a Angela Eugenia Rigdon a/k/a Angela E. Rigdon, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01520-COA.
    Court of Appeals of Mississippi.
    Aug. 27, 2013.
    Rehearing Denied Dec. 3, 2013.

      Angela Rigdon, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before GRIFFIS, P.J., BARNES, MAXWELL and JAMES, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Angela Rigdon tried to attack two judgments in one motion for post-conviction relief (PCR), which the law does not permit. Further, we find it was plain from her motion, exhibits, and prior proceedings that she was not entitled to any relief. Thus, we affirm the circuit judge’s summary dismissal of Rigdon’s PCR motion.

Background

¶ 2. In March 2007, Rigdon pled guilty to two separate crimes, charged in two separate causes — (1) the robbery of John Culpepper, and (2) the capital murder of Stuart Milam in the course of the underlying crime of robbery of Milam. Rigdon admitted participating in both robberies with co-indictee Robert Wayne Bounds, though she denied being the one who actually killed Milam. She was sentenced to fifteen years’ imprisonment for the robbery conviction and to life in prison for the capital-murder conviction. The sentences were ordered to run consecutively.

¶ 3. Rigdon filed a pro se PCR motion. The docket lists Rigdon’s PCR motion as having been filed on January 21, 2011— outside the three-year time limit. Miss. Code Ann. § 99-39-5(2) (Supp.2012) (requiring, in cases where petitioner plead guilty, that PCR motion be filed within three years of entry of judgment of conviction). But the file stamp that shows the PCR motion as filed on January 21, 2011, appears to have been later placed over an earlier file stamp dated March 25, 2010. And a handwritten 2010 cause number was apparently scratched out and replaced with a new 2011 cause number. Also, all signature dates throughout Rigdon’s motion are from March 2010. So the record indicates Rigdon may have initially filed her PCR motion in March 2010, within the three years of the entry of her guilty plea. Miss.Code Ann. § 99-39-5(2).

¶ 4. The possibility that Rigdon’s motion may have been timely filed is bolstered by the fact the circuit judge did not summarily dismiss her motion based on section 99-39-5(2)’s time-bar. Instead, he summarily dismissed the PCR motion on a different procedural ground, since it im-permissibly attacked more than one judgment. Miss.Code Ann. § 99-39-9(2) (Supp.2012) (limiting a PCR motion to the “to the assertion of a claim for relief against one (1) judgment only”). The judge also found summary dismissal proper because Rigdon’s motion plainly lacked merit. Miss.Code Ann. § 99-39-11(2) (Supp.2012) (“If 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, the judge may make an order for its dismiss-alt.]”).

Discussion

¶ 5. After reviewing Rigdon’s PCR motion, we affirm the summary dismissal for the same two reasons the circuit judge found it should be dismissed.

I. Noncompliance with One-Judgment Rule

¶ 6. Section 99-39-9(2) clearly limits a PCR motion “to the assertion of a claim for relief against one (1) judgment only.” “If a petitioner desires to attack the validity of other judgments under which he is in custody, he shall do so by separate motions.” Id. This means that “a separate motion for post-conviction relief must be filed for each cause number or conviction.” Bell v. State, 2 So.3d 747, 749 (¶ 5) (Miss.Ct.App.2009). This rule applies even when, as in Rigdon’s case, the multiple convictions were imposed in the same plea hearing and sentencing order. See Hundley v. State, 803 So.2d 1225, 1229 (¶ 9) (Miss.Ct.App.2001) (noting that section 99-39-9(2) requires separate PCR motions to attack guilty pleas in two different cause numbers, even though the pleas were taken in the same hearing).

¶ 7. Rigdon’s single PCR motion does not comply with section 99-39-9(2). On the first page of her motion, Rigdon lists both the cause number for her robbery conviction and the separate cause number for her capital-murder conviction. And from the content of the motion, it is apparent she is seeking relief from both judgments of conviction. Thus, her PCR motion was properly dismissed for being procedurally barred by the one-judgment rule.

II. Lack of Merit

¶ 8. The trial judge also relied on section 99-39-11(2) as an alternative basis for dismissal. Section 99-39-11(2) permits dismissal based on the PCR motion’s merits—or rather lack thereof. In Bell, which also involved a PCR motion procedurally barred by the one-judgment rule, we found no harm in the circuit judge’s consideration of the merits of the motion, as he concluded there were none. Bell, 2 So.3d at 749 (¶ 5). Similarly, we find no harm in the judge’s determination that, in addition to the procedural bar, dismissal was also warranted under section 99-39-11(2). We agree that it is clear from the face of Rigdon’s PCR motion, attached exhibits, and trial records that she is not entitled to relief.

¶ 9. Parsing the various allegations in Rigdon’s pro se PCR motion and appellate brief, we find she is essentially making three claims — (1) that her guilty plea was involuntary, (2) that her trial counsel was constitutionally ineffective, and (3) that she had never been properly indicted for the robbery of Culpepper. But she fails to support any of the claims.

A. Involuntary Guilty Plea

¶ 10. Rigdon asserts that her guilty plea was not voluntary because she did not understand the charges against her and that she was coerced into pleading guilty. However, her plea-hearing transcript shows otherwise. See Gardner v. State, 531 So.2d 805, 809-10 (Miss.1988) (finding that the thoroughness of the trial court’s interrogation during the plea colloquy “is the most significant evidence of all” when evaluating the issue of voluntariness). At the plea hearing, Rigdon was read both the capital-murder indictment and the robbery indictment. And she was asked and answered in the affirmative that she understood the charges against her. The judge then advised her of the minimum and maximum sentences for both crimes and the rights she would be waiving if she pled guilty, including the right to a jury trial, the right to confront her accusers, and the right to appeal. He then questioned her to ensure she had not been threatened, coerced, or improperly induced to plead guilty. Rigdon maintained she had not.

¶ 11. While “an attack on a facially correct plea may survive summary dismissal if supporting affidavits of other persons are attached,” Rigdon attached no such evidence to her PCR motion. Mitchener v. State, 964 So.2d 1188, 1194 (¶ 15) (Miss.Ct.App.2007). And without any evidence to contradict her sworn testimony, Rig-don’s claims of not understanding the charges against her and coercion cannot survive dismissal. See id.

¶ 12. Rigdon also asserts that there was no factual basis supporting her plea. See Reynolds v. State, 521 So.2d 914, 916 (Miss.1988) (citation omitted) (“[S]ome factual basis for the defendant’s guilt is an essential part of the constitutionally valid and enforceable decision to plead guilty.”); URCCC 8.04(A)(3). But before the circuit judged accepted her guilty plea, the State read both indictments. See Williams v. State, 110 So.3d 840, 843 (¶¶ 17-19) (Miss.Ct.App.2013) (holding that the State’s reading aloud of the indictment at the plea hearing provided an adequate factual basis to support the guilty plea). Also, when the judge asked the State to present its factual bases supporting both charges, the prosecutor proffered that the State was prepared to prove Rigdon participated in both the robbery of Culpepper and the robbery of Milam, during which Milam was murdered. And Rig-don agreed the State’s version of events was correct.

¶ 13. While Rigdon strenuously denied being the one who actually killed Milam, this denial did not negate the factual basis for her plea of guilty to capital murder. This court has previously addressed a similar challenge by a defendant who had also been convicted of capital murder for a killing in the commission of a robbery, but had not herself committed the killing. In Scarborough v. State, 956 So.2d 382, 385 (¶ 17) (Miss.Ct.App.2007), the defendant argued she was not criminally culpable because there was no evidence she was the one who killed the robbery victim. But this court disagreed. Scarborough was an accessory before the fact, “enter[ing] into an agreement that an unlawful act [ (the victim’s robbery) ] will be done ... [and] participating] in the design of the felony.” Id. at 386 (¶ 21). And “[i]n Mississippi, ‘every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such.’ ” Id. (quoting Miss.Code Ann. § 97-1-3 (Rev.2006)). Thus, we found the fact that Scarborough had participated in the robbery in which her accomplices fatally beat the victim in front of her was sufficient to support her conviction of capital murder. Id. at (¶ 20).

¶ 14. Like Scarborough, the record here contains a sufficient factual basis that Rigdon participated in the robbery during which Milam was killed. See Boddie v. State, 875 So.2d 180, 183 (¶ 8) (Miss.2004) (citation omitted) (allowing appellate court to review the record as a whole when determining a factual basis for a guilty plea). And at the plea hearing, Rigdon acknowledged that she understood she had been charged for being an accessory before the fact and, if found guilty, could be punished as if she were the one who killed Milam. So we find there is no merit to her claim that her capital-murder plea lacked a factual basis.

¶ 15. Without any evidence to contradict her sworn plea, we find Rigdon’s involuntary-guilty-plea claim was properly dismissed for lack of merit.

B. Ineffective Assistance of Counsel

¶ 16. Rigdon next claims her trial counsel was ineffective. A voluntary guilty plea waives claims of ineffective assistance of counsel “except insofar as the alleged ineffectiveness relates to the volun-tariness of the giving of the guilty plea[.]” Hill v. State, 60 So.3d 824, 827 (¶ 6) (Miss.Ct.App.2011) (quoting United States v. Cavitt, 550 F.3d 430, 441 (5th Cir.2008)). Rigdon lists a litany of misdeeds by her trial counsel that supposedly contributed to her guilty plea being involuntary — including allegations that counsel mislead Rigdon about the charges against her and her options, threatened Rigdon into pleading guilty, withheld evidence from Rigdon, and refused to conduct discovery at Rig-don’s request. Yet Rigdon provides nothing beyond her own assertions that her attorney actually engaged in this conduct. See Ealey v. State, 967 So.2d 685, 691 (¶ 18) (Miss.Ct.App.2007) (“It is firmly established that mere allegations are insufficient to entitle a defendant to an evidentia-ry hearing on a[PCR] claim of ineffective assistance of counsel.”); see also Brooks v. State, 89 So.3d 626, 628 (¶ 6) (Miss.Ct.App.2011) (holding that in PCR cases, “where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit” (quoting Vielee v. State, 653 So.2d 920, 922 (Miss.1995))). Further, Rigdon’s assertions are contradicted by her prior sworn acknowledgments that no one threatened or coerced her into pleads ing guilty and that her counsel explained to her the charges against her. See Mitchener, 964 So.2d at 1194 (¶ 15). Without anything beyond her own allegations that her counsel was deficient, Rigdon’s ineffective-assistance-of-counsel claim was also properly dismissed. See id.

C. Failure to Indict

¶ 17. Finally, Rigdon claims that her conviction for robbing Culpepper cannot stand because she was never indicted for this crime.

¶ 18. Rigdon relies on the fact that no indictment for the Culpepper robbery is attached to her PCR motion. But the mere absence of the robbery indictment from the documents Rigdon selected to support her PCR motion is not proof such document does not exist. Had she never really been properly charged, Rigdon could have placed in the PCR record a copy of the entire trial court record from Cause Number 06-443CR, the earlier case in which she was convicted of robbery. But she did not.

¶ 19. While this court does not have the benefit of the record from Cause Number 06-443CR, the trial judge did. During Rigdon’s plea hearing, the trial judge obviously had both indictments before him. Indeed, prior to taking her plea, the judge mentioned that “before the Court, [is] State of Mississippi versus Angela Rigdon, Cause Number 06-443CR, charged with robbery.” In addition, the State read this indictment in open court as well as her separate indictment for capital murder.

¶20. Section 99-39-11(2) clarifies that a PCR motion may only be dismissed by the trial judge “[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[.]” (Emphasis added). Here, the trial judge found, based on the record in Cause Number 06-443CR, Rigdon’s claim that she was never indicted was baseless and did not entitle her to relief. Thus, we find no error in the judge’s alternative holding that Rigdon’s procedurally barred challenge clearly lacked merit.

¶ 21. We affirm the judgment dismissing Rigdon’s PCR motion.

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

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

      . Miss.Code Ann. § 99-39-9(2) (Supp.2012).

      . Miss.Code Ann. § 99-39-11(2) (Supp.2012).

      . Though Rigdon failed to file her notice of appeal within the requisite thirty-day time limit, M.R.A.P. 4(a), this court exercised its authority to suspend the rules for "good cause shown” and allowed Rigdon’s untimely appeal to proceed. M.R.A.P. 2(c).

      . Under Mississippi Code Annotated section 97-3-19(2)(e) (Rev.2006):
      The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:
      ... When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or non-consensual unnatural intercourse with mankind, or in any attempt to commit such felonies[.]

      . We note that the State, in its reply brief, attempted to show Rigdon had been indicted for robbery by attaching a copy of the robbery indictment to its brief. But this court's review is restricted to the appellate record, and merely attaching a document as an exhibit to a brief does not make it a part of the record. See McCullough v. State, 47 So.3d 1206, 1211 (¶ 18) (Miss.Ct.App.2010) (holding defendant could not make documents part of trial record "by simply attaching copies to his briefs filed with this Court”). Had the State wanted this court to consider the evidence proving the existence of Rigdon’s indictment, the proper procedure would have been to move to supplement the record, as permitted by Mississippi Rule of Appellate Procedure 10(e).