author: BARNES, J.,

text:
    CROWN COMMUNICATION, LLC, Appellant v. T6 UNISON SITE MANAGEMENT, LLC, Jeff Ormon and Brad Ormon, Appellees.
    No. 2012-CA-01510-COA.
    Court of Appeals of Mississippi.
    May 6, 2014.

      John Nelson Rocray, John Martin Lassi-ter, Jackson, attorneys for appellant.
    James Wilbourn Vise, Alexander Frederick Guidry, Danny Alton Drake, Jackson, Robert T. Higginbotham Jr., attorneys for appellees.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court:

¶ 1. Crown Communications LLC (Crown) appeals the Hinds County Circuit Court’s decision to deny its motion for summary judgment and to grant the motion for summary judgment filed by T6 Unison Site Management LLC (Unison). Finding that the circuit court’s order was not a final, appealable judgment, we dismiss the appeal.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On December 11, 2000, Crown (also referred to as Lessee) entered into a Lease Agreement with Sammie and Nora Ormon (also referred to as Lessor) for the purpose of erecting and operating a wireless-communications facility on a portion of Sammie and Nora’s property. Under the terms of the Lease Agreement, Crown was to pay a monthly rental fee to Sammie and Nora in exchange for use of the specified property. Additionally, the Lease Agreement provided:

If during the Lease Term Lessor elects to sell all or any portion of the Leased Premises, whether separate or as part of the larger parcel of which the Leased Premises is a part, Lessee shall have the right of first refusal to meet any bona fide offer of sale on the same terms and conditions of such offer. If Lessee fails to meet such bona fide offer within thirty days after notice thereof from Lessor, Lessor may sell the Leased Premises or portion thereof to such third person in accordance with the terms and conditions of the offer.

Both Sammie and Nora subsequently died, and title to the property was transferred to their sons, Brad and Jeff Ormon (the “Ormons”) on May 20, 2010.

¶ 3. On July 27, 2010, the Ormons and Unison entered into a Wireless Communication Easement and Assignment Agreement (Assignment), which assigned to Unison the Ormons’ rights and duties under the Lease Agreement, as well as a nonexclusive easement for ingress and egress. The Ormons retained fee-simple ownership of the property and were responsible for paying the property taxes.

¶ 4. In October 2010, Crown ceased making rental payments, and Unison sent Crown a default notice on December 20, 2010. Unison filed a complaint against Crown on January 12, 2011, for “breach of contract, bad faith breach of contract, and an action to remove and/or evict [Crown] from the site and premises[.]” Crown responded and filed a counterclaim, arguing that the Assignment did not grant Unison an easement, but rather that the Assignment conveyed a property interest to Unison, which should have triggered the “right of first refusal” clause of the Lease Agreement. Therefore, Crown asserted that the Ormons breached the Lease Agreement, and Crown filed a motion for leave to file a third-party complaint against the Ormons on March 8, 2011. The circuit court granted the motion, and, on May 11, 2011, Crown filed a third-party complaint against the Ormons.

¶ 5. On September 15, 2011, both Unison and Crown filed motions for summary judgment. The Ormons filed a “Separate Motion for Summary Judgment Through Joinder in Part in Unison’s Motion for Summary Judgment and Unison’s Memorandum of Authorities” on October 25, 2011.

¶6. On August 14, 2012, the Hinds County Circuit Court entered an order, rejecting Crown’s argument and finding the Ormons had merely assigned an “interest” in the property, not “fee title to a part of the ‘parcel.’” Therefore, the order granted summary judgment in favor of Unison and denied Crown’s motion for summary judgment. It also noted that should Crown and Unison not come to an agreement regarding past-due rent, Crown should place the rent money into the court’s registry until the circuit court could conduct a hearing on the issue. The order did not address the Ormons’ motion for summary judgment.

¶ 7. Crown appeals the judgment. Upon review, we find that the circuit court’s order was not a final judgment under Mississippi Rule of Civil Procedure 54(b); therefore, this Court is without jurisdiction to consider Crown’s appeal. The appeal is dismissed.

DISCUSSION

¶8. Although no party has raised the issue of appellate jurisdiction, as the action involved multiple parties and claims, we must address on our own initiative whether the circuit court’s order was a final, appealable judgment under Mississippi Rule of Civil Procedure 54(b). Clausell v. Bourque, 122 So.3d 825, 827 (¶ 6) (Miss.Ct.App.2013) (citing Williams v. Delta Reg’l Med. Ctr., 740 So.2d 284, 285 (¶ 5) (Miss.1999)).

¶ 9. Under Rule 54(b), the circuit court may “direct the entry of a final judgment as to one or more but fewer than all of the claims or partiesf.]” M.R.C.P. 54(b). For a judgment to be final under Rule 54(b), “the case [must] include either multiple claims, multiple parties, or both, and ... either one or more but fewer than all the claims [must] have been decided, or ... all the rights and liabilities of at least one party [must] have been adjudicated.” M.R.C.P. 54(b) cmt.

¶ 10. Crown brought the Ormons into the action as third-party defendants, and they were represented by counsel at the motion hearings before the circuit court. Yet, although they do not challenge this Court’s jurisdiction, the Ormons observed in their appellees’ brief that the “[c]ircuit [c]ourt’s [o]rder does not expressly grant the Ormon’s [mjotion [for summary judgment].” The order only disposed of Unison’s and Crown’s motions for summary judgment, and the circuit judge failed to certify the order as a final judgment under Rule 54(b). In Anderson v. Britton & Koontz Bank, N.A., 55 So.3d 1130, 1132 (¶ 10) (Miss.Ct.App.2011), we held that “[without a Rule 54(b) certification, [an] order granting summary judgment to only one of the two defendants is interlocutory.” (Citing M.R.C.P. 54(b) cmt.); see also Clausell, 122 So.3d at 827 (¶ 7) (finding no appellate jurisdiction, as the circuit court’s order granted summary judgment to only one of three parties “without a Rule 54(b) certification”).

¶ 11. Since the circuit court’s order did not dispose all of the claims against all of the parties and was not certified as a final judgment under Rule 54(b), the order is interlocutory. Accordingly, we dismiss the appeal for lack of jurisdiction.

¶ 12. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Crown began paying past-due rent into the circuit court registry on December 12, 2012, after being instructed by the court to do so.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Nina H. McGHEE, Appellant v. Dr. Virginia YOUNG, Appellee.
    No. 2013-CP-00358-COA.
    Court of Appeals of Mississippi.
    May 13, 2014.

      Nina H. McGhee, appellant, pro se.
    Christine Crockett White, Amanda Woodruff, Jackson, Robert M. Logan Jr., Newton, attorneys for appellee.
    Before GRIFFIS, P.J., ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Nina H. McGhee was employed as a teacher with the Newton Municipal School District from 2011 through 2012. In January 2012, she applied to participate in a leadership program called the Mississippi Alternative Path to Quality School Leadership Program (MAP). MAP would allow her to obtain an administrator’s license. In order to apply, she was required to procure consent from her school-district superintendent, Dr. Virginia Young, as well as a letter of recommendation from Young. Young complied. However, in April 2012, McGhee was notified in a letter signed by Young that the school district would not renew her teaching contract for the 2012-2013 school year. A few days later, McGhee was informed of her acceptance into MAP, which was to begin in the summer of 2012. Since being employed in a Mississippi school system was a requirement for MAP, McGhee was unable to participate in the program due to the non-renewal of her teaching contract. She also had no recourse to challenge the school district’s non-renewal of the contract since she was a first-year teacher. McGhee subsequently filed suit against Young, claiming breach of contract. Young filed a motion for summary judgment, claiming a contract never existed. The Newton County Circuit Court agreed and dismissed the case. Aggrieved, McGhee now appeals. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. McGhee was employed as a first-year teacher in the school district from 2011 through 2012. During that time, she applied to MAP. MAP was a training program for teachers who wished to gain an administrative license offered by the Mississippi Department of Education and the Mississippi Community College Foundation. One of MAP’s requirements for all participants was that each participant be employed in a Mississippi school system while partaking in the program.

¶ 3. As part of the application process, the superintendent of the applicant’s school district was required to sign the application and write a letter of recommendation on the applicant’s behalf. The superintendent was also required to state in the recommendation letter that he or she agreed to provide a one-year internship for the applicant in an administrative capacity at a successful school in their district. Young signed McGhee’s application and wrote a letter of recommendation on her behalf to accompany the application. In the letter, Young agreed that if McGhee were chosen to participate in MAP, she would afford her the necessary one-year internship in the school district.

¶4. McGhee submitted the application on January 20, 2012. However, on April 5, 2012, she received a letter from the school district, signed by Young, stating that McGhee would not be offered a teaching contract for the next school year. Since she was a first-year teacher, she was not entitled to a hearing on the matter.

¶ 5. Six days later, McGhee was notified by written letter that she had been chosen for MAP. The letter informed McGhee that in addition to paying the program’s fee of $2,150, she would be required to complete the MAP summer session, as well as the one-year internship. The letter stated that upon completion, she would be eligible to apply for a five-year program to receive an entry-level administrator license. Nonetheless, since McGhee was no longer employed in a Mississippi school system, she was not eligible for MAP.

¶ 6. On July 28, 2012, McGhee filed a petition for a writ of mandamus in the circuit court against Young alleging that the school district had made a contract with McGhee for the 2012-2013 school year by way of Young’s signature on the application and letter of recommendation. McGhee requested that the circuit court force the school district to honor the contract. Alternatively, McGhee claimed that the school district had breached its contract with her, and demanded damages of $50,000. She contended this was the salary she would have made as a teacher and assistant principal in the school district for the 2012-2013 school year. Young responded by filing a motion to dismiss the petition for a writ of mandamus since the petition did not meet the basic requirements for issuance of such a writ. The circuit court agreed with Young and dismissed the petition for a writ of mandamus, but did not dismiss McGhee’s claim for damages.

¶ 7. Both McGhee and Young then filed motions for summary judgment. McGhee asserted that Young had breached their contract. Young claimed a contract never existed between Young or the school district and McGhee. Subsequently, McGhee asserted that she was a third-party beneficiary to a contract that existed between MAP and Young by way of Young’s signature on the MAP application and her letter of recommendation. After a hearing on the matter, the circuit court granted Young’s motion for summary judgment and dismissed the case with prejudice.

DISCUSSION

¶ 8. On appeal, McGhee appears to reiterate her most recent claim that a third-party contract existed between Young and MAP, of which she was a third-party beneficiary. McGhee asserts that Young breached this alleged contract. McGhee, acting pro se, provides the following as the entirety of her argument:

Dr. Virginia Young breached a third[-]party contract that she signed that would permit Mrs. Nina H. McGhee to work as an assistant principal in the Newton Municipal School District for the 2012-2013 school term. Instead, Dr. Young non-renewed Mrs. McGhee for the 2012-2013 school term.
Mississippi public school superintendents are financially bonded in the amount of $100,000 for any legal damages that one may incur (Miss.Code of 1972 Ann. 37-9-27). In addition, these individual are provisioned to implement school board decisions in regards to licensed employees and given the power to make temporary appointments for the general duties of given school districts (Miss.Code of 1972 Ann. 37-9-14).

¶ 9. McGhee fails to address any portion of her claim that a contract existed and was breached. The Mississippi Rules of Appellate Procedure mandate that a party cite authority in support of any argument raised on appeal. M.R.A.P. 28(a)(6). “Failure to provide authority for an assignment of error operates as a procedural bar, and this Court will consider those unsupported issues to be abandoned.” Little v. Norman, 119 So.3d 382, 386 (¶ 14) (Miss.Ct.App.2013) (citation omitted). Nonetheless, “we will not discard a meritorious complaint simply because it is inart-fully drafted.” Id. (citation omitted). “But we have also held that pro se parties should be held to the same rules of procedure and substantive law as represented parties.” Id. (citation omitted).

¶ 10. Here, McGhee’s argument on appeal is more than merely “inartfully drafted.” Rather, it is completely lacking authority or reasoned support. Accordingly, a procedural bar arises as to McGhee’s appeal. Procedural bar notwithstanding, we would still find that the circuit court did not err in granting summary judgment.

¶ 11. The Mississippi Supreme Court has held that an appellate court “reviews a trial court’s grant or denial of a motion for summary judgment or a motion to dismiss under a de novo standard.” Copiah Cnty. v. Oliver, 51 So.3d 205, 207 (¶ 7) (Miss.2011) (citation omitted). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995) (citation omitted) (quoting M.R.C.P. 56(c)).

¶ 12. The most basic elements of an enforceable contract are an offer and an acceptance. Stovall v. Hayes, 984 So.2d 1079, 1081 (¶ 12) (Miss.Ct.App.2008) (citation omitted). Additionally, to be valid, a contract requires: “(1) two or more contracting parties, (2) consideration, (3) an agreement that is sufficiently definite, (4) parties with legal capacity to make a contract, (5) mutual assent, and (6) no legal prohibition precluding contract formation.” Adams Cmty. Care Ctr., LLC v. Reed, 37 So.3d 1155, 1158 (¶ 7) (Miss.2010) (citation omitted).

¶ 13. In the present case, the requisite elements of a contract were not present. McGhee’s arguments are convoluted as to what she asserts constituted the official offer of employment. Initially, McGhee claimed that the school district made the offer in the form of the one-year internship by way of Young’s letter of recommendation and her signature on the MAP application. However, later she asserted that the MAP letter to her informing her of her acceptance into the program constituted an offer of employment due to the one-year internship.

¶ 14. Even if one of these actions constituted an offer, which McGhee accepted, the other prerequisites for a valid contract were not present. Most notably, there was no mutual assent to the offer. Given the school district’s termination of McGhee prior to MAP’s issuance of McGhee’s acceptance letter, there was clearly no assent on the part of Young or the school district. Furthermore, the record is silent as to any communication between Young and MAP other than Young’s signature on the MAP application and her recommendation letter. Even more remarkable than the lack of communication between Young and MAP is the lack of communication between Young and McGhee. There is no evidence in the record that Young ever promised McGhee, either verbally or in writing, the continued employment required by MAP. Young’s promise in her letter of recommendation to provide McGhee with a one-year internship if she were chosen by MAP would have been separate from any promise of continued employment had there been one, which the record reflects there was not. Hence, a contract — third-party or otherwise — could not have existed between the present parties since they clearly failed to mutually assent to the terms. Accordingly, McGhee’s issues on appeal are meritless.

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

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


author: FAIR, J.,

text:
    Clarence Dwayne JEFFERSON a/k/a Clarence D. Jefferson a/k/a Clarence Jefferson, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-00764-COA.
    Court of Appeals of Mississippi.
    May 13, 2014.

      Office of State Public Defender by Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Melanie Dotson Thomas, attorney for appellee.
    Before GRIFFIS, P.J., BARNES, FAIR and JAMES, JJ.
   FAIR, J.,

for the Court:

¶ 1. Clarence Jefferson was stopped after attempting to avoid a late-night roadblock in Columbia, Mississippi. He consented to a blood test that revealed his blood-alcohol concentration was twice the legal limit. After a trial, Jefferson was convicted of felony DUI, his third DUI offense in a five-year period, and the circuit court sentenced him to five years’ imprisonment. Jefferson appeals, contending that the verdict was against the overwhelming weight of the evidence and that the prosecution committed a reversible discovery violation.

¶ 2. We find no error and affirm.

FACTS

¶ 3. At 2:15 a.m. on December 10, 2011, Jefferson was driving west on Highway 98 when he approached a safety checkpoint manned jointly by the Marion County Sheriffs Department and the Columbia Police Department. The officers motioned for Jefferson to stop, but he abruptly turned off the highway, without using his turn signal. A sheriffs deputy followed and, after observing Jefferson’s vehicle swerving, stopped him. The officers immediately noticed the smell of an alcoholic beverage and observed that Jefferson’s eyes were bloodshot and his speech slurred. The cap to a liquor bottle was seen on Jefferson’s front passenger seat.

¶ 4. Jefferson eventually admitted he had “a few drinks” earlier that night, and a portable test confirmed the presence of alcohol on his breath. Jefferson failed two field sobriety tests, getting six of six indicators of impairment on one and six of eight on another. He was taken into custody and, after dithering for a while, consented to a blood test. The blood was extracted at a local hospital about one hour after Jefferson’s vehicle was stopped. It was sent to the Mississippi Crime Lab for analysis, which showed Jefferson’s blood-alcohol concentration to be 0.16%, twice the legal limit.

DISCUSSION

I. Sufficiency of the Evidence

¶ 5. In his first issue, Jefferson contends that his conviction is not supported by sufficient evidence because of what he alleges are gaps in the evidence relating to his blood-alcohol test.

¶ 6. The inquiry as to sufficiency 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; and where the evidence fails to meet this test it is insufficient to support a conviction.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id, (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 7. Jefferson makes two poorly developed arguments on this point. He first complains about the chain of custody of his blood sample at the Mississippi Crime Lab, though the specifics of the complaint are unclear — Jefferson simply asserts that there is not a “complete and unbroken chain of custody” and offers in support a lengthy (but materially incomplete) quote from the transcript of his cross-examination of the lab technician, followed by the assertion that it is “evident from this line of testimony that the Prosecution did not present sufficient documentation to establish that the chain of custody was preserved and that the blood sample assigned to the Defendant at the Mississippi Crime Laboratory was actually the Defendant’s blood.” Jefferson’s second argument is similar (and similarly perfunctory); he asserts that there could not be sufficient evidence of his guilt without “documentation” in evidence to corroborate the lab technician’s testimony that the machine used to test his blood-alcohol concentration had been calibrated.

¶ 8. Jefferson provides no authority specific to either of these arguments; he only recites the statute outlining the elements of the offense and quotes case law regarding the sufficiency of the evidence standard in its most general terms. Mississippi Rule of Appellate Procedure 28(a)(6) states: “The argument shall contain the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” The rule “does not simply require a party to mention authority; the authority must be used to develop the argument in a meaningful way.” Archer v. State, 118 So.3d 612, 621 (¶ 29) (Miss.Ct.App.2012) (citation omitted). This is because “there is a presumption that the judgment of the trial court is correct and the burden is on the Appellant to demonstrate some reversible error to [the appellate court].” Birkhead v. State, 57 So.3d 1223, 1231 (¶ 28) (Miss.2011).

¶ 9. Jefferson’s arguments on this issue are not sufficiently developed to satisfy that initial burden. As this Court said in Rhoda v. Weathers, 87 So.3d 1067, 1072 (¶ 23) (Miss.Ct.App.2011), rev’d on other grounds, 87 So.3d 1036 (Miss.2012):

An appellant cannot give cursory treatment to an issue and [expect] this Court to uncover a basis for the claims, either in the record or in the law. Simply put, we will not act as an advocate for one party to an appeal. The appellant must affirmatively demonstrate error in the court below, and failure to do so waives an issue on appeal.

¶ 10. Moreover, Jefferson’s arguments fail to address the fact that he could have been convicted without the blood-alcohol test results. Jefferson was charged under Mississippi Code Annotated section 63 — 11— 30 (Rev.2013), which provides in relevant part:

(1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor; [or] ... (c) has an alcohol concentration of eight one-hundredths percent (.08%) or more for persons who are above the legal age to purchase alcoholic beverages under state law....

¶ 11. Both the indictment and the jury instructions permitted Jefferson to be convicted if he drove “under the influence of intoxicating liquor.” “Common law DUI is proven when a defendant’s blood alcohol results are unavailable ... but there is sufficient evidence to [show] that the defendant operated a motor vehicle under circumstances indicating his ability to operate the vehicle was impaired by the consumption of alcohol.” Young v. State, 119 So.3d 309, 315 (¶ 19) (Miss.2013) (citation omitted). As we recounted above, there was substantial evidence from which the jury could find that Jefferson was driving while impaired. Jefferson’s failure to address this theory of the prosecution dooms his sufficiency of the evidence argument.

2. Brady Violation

1112. In his remaining issue, Jefferson contends the prosecution committed a Brady violation by not providing him, under Rule 9.04 of the Uniform Rules of Circuit and County Court Practice, with the certification of the most recent calibration of the machine used to test his blood-alcohol concentration.

¶ 13. There are many problems with this argument, but first and foremost is that Jefferson has never shown that the document would be favorable to him. See Davis v. State, 43 So.3d 1116, 1123 (¶ 22) (Miss.2010). To make out a Brady claim, Jefferson has a burden to prove (among other things) that “the State possessed evidence favorable to the defendant” and that “the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence.” See Havard v. State, 86 So.3d 896, 900 (¶ 12) (Miss.2012). Failure of the defendant to prove either of these elements is fatal. Davis, 43 So.3d at 1128-24 (¶¶25, 28).

¶ 14. On appeal, Jefferson contends only that the certification “could have been useful” to his defense, depending on what it had shown. This is a manifest failure to prove that the document was favorable to him, as required under Brady.

¶ 15. Since complaining about the alleged discovery violation during the trial, Jefferson has never actually attempted to obtain the certification. It is undisputed that the certification was available to Jefferson upon his specific request, irrespective of whether the State should have provided it to him under Rule 9.04. Yet while Jefferson used the certification’s absence during his trial to argue reasonable doubt, he never followed up on the issue since being convicted. At the very least, Jefferson should have presented the document with his motion for a new trial or shown why he could not do so.

¶ 16. Having failed to pursue this claim, Jefferson cannot now prove a Brady violation occurred, even assuming the other requirements were satisfied. This issue is without merit.

¶ 17. THE JUDGMENT OF THE MARION COUNTY CIRCUIT COURT OF CONVICTION OF FELONY DUI AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY A $1,000 FINE AND $3,500 TO THE MARION COUNTY PUBLIC DEFENDER’S FUND, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARION COUNTY.

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

      . See Miss.Code Ann. § 63-11 — 30(2)(c) (Rev. 2013).

      . See § 63-11-30(1).

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


author: JAMES, J.,

text:
    Freddie Lee MARTIN a/k/a Freddie L. Martin, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00221-COA.
    Court of Appeals of Mississippi.
    May 13, 2014.

      Freddie Lee Martin, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Freddie Lee Martin pled guilty to one count of possession of a controlled substance with an enhanced penalty as a second drug offender. Martin filed a motion for post-conviction relief (PCR) claiming that his indictment was defective and that his sentence was illegal. Martin’s motion was denied, and he now appeals. Finding no error, we affirm.

FACTS

¶ 2. On September 27, 2009, Martin was stopped by a Long Beach police officer after Martin’s vehicle was observed performing an illegal “U-turn.” Upon being asked to step out of the vehicle, two plastic bags fell from Martin’s waistband. The bags contained 206 dosage units of what was later identified as hydrocodone. On March 29, 2010, a Harrison County grand jury indicted Martin on one count of possession of a controlled substance with intent to transfer or distribute, with an enhanced penalty as a second drug offender. On March 21, 2011, the indictment was amended, and Martin pled guilty to one count of possession of a controlled substance with an enhanced penalty as a second drug offender. Martin filed a motion for PCR in which he asserted that the indictment was defective and that his sentence was illegal. The trial court denied the motion and Martin now appeals.

DISCUSSION

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

I. Defective Indictment

¶ 4. Martin was indicted for possession of hydrocodone, a schedule III controlled substance, pursuant to Mississippi Code Annotated section 41-29-139(a)(1) (Rev.2013), with an enhanced penalty pursuant to Mississippi Code Annotated section 41-29-147 (Rev.2013). The pertinent part of the March 29, 2010 indictment stated: “Freddie Lee Martin ... did knowingly, wilfully, unlawfully, and feloniously possess [hydrocodone], a Schedule III[e]ontrolled [s]ubstance[,] with the intent to transfer or distributee] ... [a]fter [Martin] had previously been convicted on December 3, 2007, of the crime and felony of [tjransfer of a[c]ontrolled substance....” Martin argues that his indictment was defective because it failed identify to whom Martin intended to transfer or distribute the hydrocodone, and did not specify the quantity or purity of the controlled substance. We disagree.

¶ 5. We first note that Martin pled guilty to the crime. “It is a well-settled principle of law that a valid guilty plea admits all elements of a formal charge and operates as a waiver of all non-jurisdietional defects contained in an indictment against a defendant.” Elliott v. State, 939 So.2d 824, 826 (¶ 6) (Miss.Ct.App.2006) (citing Reeder v. State, 783 So.2d 711, 720 (¶ 36) (Miss.2001)). Thus, Martin has waived all non-jurisdictional defects in his indictment.

¶ 6. Nevertheless, on March 21, 2011, the day of the plea hearing, the State moved to amend the indictment from possession of a controlled substance with the intent to distribute to the lesser charge of possession of a controlled substance pursuant to Mississippi Code Annotated section 41—29—139(c)(3) (Rev.2013). Martin agreed to the amendment. Martin then pled guilty to the amended charge of possession of a controlled substance with the enhanced penalty, and not to possession •with the intent to distribute. Section 41-29—139(c)(3) provides that it is “unlawful for any person knowingly or intentionally to possess any controlled substance....” Thus, intent to distribute is not an element of the crime to which Martin actually pled guilty.

¶7. Similarly, Martin argues that his indictment for possession with intent to distribute was defective because it did not specify the quantity of the controlled substance that Martin possessed. The penalty for possession of a controlled substance with the intent to transfer or distribute is the same regardless of the amount sold. See Miss.Code Ann. § 41-29-139(b)(4) (Rev.2013). Thus, the amount of the controlled substance is not an essential element. Smith v. State, 973 So.2d 1003, 1007 (¶ 10) (Miss.Ct.App.2007). However, section 41-29-139 provides that the penalty for possession of a controlled substance “shall be based on dosage unit ... or the weight of the controlled substance.” Miss. Code Ann. § 41-29-139(c). Therefore, although the quantity of the controlled substance is not required for the crime of possession with intent to transfer or distribute, it is a necessary element of the crime of possession of a controlled substance. Here, the indictment was amended to include the amount of the controlled substance that Martin had in his possession, namely, “100 dosage units or more but less than 500 dosage units of [h]ydro-codone.” Therefore, we find that neither the original indictment nor the amended indictment lacked the requisite elements.

¶ 8. Here, the record reflects that Martin admitted to all relevant facts, was apprised by the trial court of the consequences of his guilty plea, and pled guilty to the amended charge of possession of a controlled substance. We find nothing in the record, nor in Martin’s petition, that suggests that Martin’s plea was not knowingly and voluntarily entered, or that the plea was otherwise invalid. Accordingly, this issue is without merit.

II. Illegal Sentence

¶ 9. Martin next argues that his sentence was illegal because the evidence did not support the sentence enhancement. The enhancement is set forth in Mississippi Code Annotated section 41-29-147, and provides that “any person convicted of a second or subsequent offense under this article may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.”

¶ 10. In a criminal trial, “the elements of a crime and enhancement status must be proven beyond a reasonable doubt.” Evans v. State, 988 So.2d 404, 406 (¶ 10) (Miss.Ct.App.2008). However, the burden of proof is not as high upon the entry of a guilty plea and requires only that the trial court have before it “enough evidence that the court may say with confidence the prosecution could prove the accused guilty of the crime charged.” Id. (quoting Corley v. State, 585 So.2d 765, 767 (Miss.1991)). Furthermore, we have held that “a defendant’s own admission may suffice for the factual basis.” Id.

¶ 11. In his petition to enter a plea of guilty, Martin submitted that he had a prior conviction for the transfer of a controlled substance. In addition, during the plea hearing, the following exchange occurred:

The Court: ... [Y]ou’re indicted under the enhanced section because you have a prior — the State is alleging [that] you have a a prior felony conviction. Is that right?
Martin: Yes, sir.
The Court: Mr. Martin[,] ... were you convicted on December 3rd of 2007 of the crime of felony transfer of a controlled substance in the Circuit Court of Harrison County, Mississippi, First Judicial District ... ?
Martin: Yes, sir.
The Court: The court’s going to find that this defendant qualifies for the enhancement penalty of a felony ... under section 41-29-147 as amended.

Based on these admissions, we find that there was sufficient evidence to support Martin’s sentence enhancement. Accordingly, this issue is without merit.

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

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


text:
    Terrance Daryll RUSTIN a/k/a Terrance D. Rustin a/k/a Terrance Rustin, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00350-COA.
    Court of Appeals of Mississippi.
    May 13, 2014.

      Terrance Daryll Rustin, appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before IRVING, P.J., BARNES and FAIR, JJ.
   BARNES, J.,

for the Court:

¶ 1. Terrance Daryll Rustin appeals the DeSoto County Circuit Court’s dismissal of his motion for post-conviction relief (PCR). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. A confidential informant for the DeSoto County Sheriffs Department made a controlled buy of cocaine from Rustin on November 15, 2010. Rustin was indicted on August 10, 2011, for the sale of a controlled substance under Mississippi Code Annotated section 41-29-139 (Rev.2009), as a habitual offender. As part of a plea agreement, Rustin pleaded guilty to the charge on November 22, 2011, and was sentenced as a non-habitual offender to fifteen years in the custody of the Mississippi Department of Corrections, ten years of post-release supervision, and fines.

¶ 3. On August 2, 2012, Rustin filed a PCR motion, alleging: (1) “unlawful or illegal use of a probationer as a confidential informant”; (2) failure to provide video evidence of the alleged drug transaction; (3)the unlawful admission of certain evidence; and (4) ineffective assistance of counsel. The circuit court dismissed the motion, finding that Rustin had provided no proof or affidavits in support of his motion. Further, the circuit court noted that Rustin had pleaded guilty, thus waiving all non-jurisdictional rights or defects that are incident to trial.

¶4. On appeal, we affirm the circuit court’s dismissal.

STANDARD OF REVIEW

¶ 5. Under Mississippi Code Annotated section 99-39-11(2) (Supp.2012), a circuit court may summarily dismiss a PCR motion “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[.]” “[Dismissal of a PCR motion is proper where it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” O’Cain v. State, 120 So.3d 482, 484 (¶ 7) (Miss.Ct.App.2013) (quoting Anderson v. State, 89 So.3d 645, 649 (¶ 5) (Miss.Ct.App.2011)).

¶ 6. A circuit court’s dismissal of a PCR motion will not be disturbed on appeal “unless it is clearly erroneous.” Holder v. State, 69 So.3d 54, 55 (¶ 4) (Miss.Ct.App.2011) (citing Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004)). Issues of law, however, are reviewed de novo. Id. To succeed on appeal, the mov-ant must: “(1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive.” Buckley v. State, 119 So.3d 1171, 1173 (¶ 3) (Miss.Ct.App.2013) (citing Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss.1999)).

DISCUSSION

I. Whether it was unlawful to use a probationer as a confidential informant.

¶ 7. Rustin contends that because the confidential informant was not allowed to possess or use controlled substances due his status as a convicted felon and probationer, the “drug buy was illegal or unlawful!.]” Rustin also claimed that the use of the informant constituted a type of “entrapment.”

¶ 8. Rustin’s claim is procedurally barred because he pleaded guilty to the charge. If a defendant pleads guilty to committing the charged offense, “he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Jackson v. State, 122 So.3d 1220, 1228 (¶ 36) (Miss.Ct.App.2013) (citing Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973)).

¶ 9. This Court addressed this identical argument in Young v. State, 919 So.2d 1047, 1049 (¶ 5) (Miss.Ct.App.2005), and held that Melinda Young’s allegation— “that it was improper for a probationer to participate in the purchase of drugs as a confidential informant” — was without merit, since the informant’s testimony had not been admitted as evidence against Young due to her guilty plea. Id. Accordingly, we find that Rustin’s claim has no merit.

II. Whether the circuit court erred by not allowing Rustin to view the videotape of the drug sale.

1110. Rustin argues that video evidence of the drug transaction existed, which was withheld from evidence, and the failure to allow him to view the video was unconstitutional. As already noted, Rustin entered a guilty plea; so this issue is barred from review.

¶ 11. Nevertheless, we find no merit to this issue raised by Rustin. His argument is akin to a claim of a violation under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), where the United States Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

However, [i]n order to establish a Brady violation, the defendant must show: (1) that the State possessed evidence favorable to the defendant; (2) that the defendant did not possess the evidence and could not have obtained it himself with reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.

Howell v. State, 989 So.2d 372, 378-79 (¶ 14) (Miss.2008) (citations omitted).

¶ 12. Other than his bare assertions, Rustin has failed to show that this video evidence, if it even exists, was favorable to his defense or that the outcome of the proceedings would have been different had he been shown the video evidence. Mere assertions by a movant that facts exist that would entitle him to relief, “do[ ] not automatically entitle the movant to a hearing.” Simmons v. State, 784 So.2d 985, 988 (¶ 9) (Miss.Ct.App.2001). “Rather, ... the movant is required, by affidavit or otherwise, to demonstrate that there is, in actuality, competent evidence available tending to establish those facts that would entitle the movant to some form of relief.” Id. Rustin has not offered any competent evidence to support his claim.

III. Whether false evidence was used to obtain Rustin’s conviction.

¶ 13. Rustin also claims that the evidence of the drug-buy money and drug paraphernalia was “false evidence.” However, “a valid guilty plea “waives any evidentiary issue.’ ” Buckley v. State, 119 So.3d 1171, 1173 (¶ 6) (Miss.Ct.App.2013) (quoting Jefferson v. State, 855 So.2d 1012, 1014 (¶ 11) (Miss.Ct.App.2003)); see also Williams v. State, 126 So.3d 992, 998 (¶ 19) (Miss.Ct.App.2013) (Entry of a guilt plea waives “evidentiary issues, including sufficiency of evidence.”). Moreover, as already noted, Rustin entered a guilty plea, so no evidence was admitted against him. Rustin has not provided any support for his claims. Therefore, we find that his contentions regarding false evidence are both proeedurally barred and without merit.

IV. Ineffective Assistance of Counsel

¶14. Although a guilty plea does not waive the right to effective assistance of counsel as it relates to the voluntariness of the plea, the movant must show that without counsel’s errors, he would not have pleaded guilty. Hill v. State, 60 So.3d 824, 827 (¶¶ 5-6) (Miss.Ct.App.2011). Again, Rustin has failed to provide any evidence, other than his own statements, to support his ineffective-assistance-of-counsel claim. “In cases involving post-conviction collateral relief, where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Jannice v. State, 65 So.3d 346, 348 (¶ 6) (Miss.Ct.App.2011) (quoting Cherry v. State, 24 So.3d 1048, 1051 (¶ 6) (Miss.Ct.App.2010)).

¶ 15. At his plea hearing, the circuit judge asked Rustin if he had any complaints against defense counsel and if he was satisfied -with counsel’s services. Rus-tin responded affirmatively. Although Rustin contends that counsel’s errors “trickfed]” him into pleading guilty, the record refutes this claim.

THE COURT: Mr. Rustin, [is it] your decision or [your counsel’s] decision for you to enter a plea of guilty?
DEFENDANT RUSTIN: Mine, sir.

Rustin’s signed petition to enter his guilty plea provided: “I offer my plea of ‘guilty’ freely and voluntarily and of my own accord and with full understanding of all matters set forth in the indictment herein and in this Petition, and this plea is with the advice and consent of my lawyer.”

¶ 16. Accordingly, we find no merit to this claim and affirm the circuit court’s judgment.

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

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

      . While the record reflects that law enforcement conducted surveillance of the drug buy, there is no definitive evidence before this Court that video footage of the transaction exists.

      . Rustin contends that the drug paraphernalia listed in the sheriff’s evidence log, which he claims was used to obtain his conviction, actually belonged to the confidential informant.


author: CARLTON, J., GRIFFIS, P.J.,

text:
    Anthony J. NEWSON, Appellant v. Lori L. NEWSON, Appellee.
    No. 2013-CA-00275-COA.
    Court of Appeals of Mississippi.
    May 13, 2014.

      Alethea Michelle Shaw-Milton, attorney for appellant.
    Vicki R. Leggett, attorney for appellee.
    Before LEE, C.J., ROBERTS, CARLTON and JAMES, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Anthony Newson appeals an order by the Lamar County Chancery Court disposing of the parties’ assets and liabilities. Anthony raises several issues on appeal, including whether the chancellor erred by awarding attorney’s fees to Lori Newson. We find the order upon which Anthony bases his appeal to be interlocutory, however, since the order fails to constitute a final judgment, reflecting final adjudication of all claims before the chancery court, and the judgment was not certified as a “final judgment” pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure. Therefore, we must dismiss the appeal for lack of jurisdiction. We remand the matter to the Lamar County Chancery Court for determination of the issues still pending below.

FACTS

¶ 2. Anthony and Lori were married on June 8, 1984, and separated on August 20, 2008. On May 19, 2011, the chancellor entered a judgment of divorce, granting Lori a divorce on the ground of adultery. Because Anthony’s attorney had notified the chancellor on the day of trial that Anthony had filed for bankruptcy, the chancellor reserved ruling on all issues relating to spousal support and alimony, as well as issues pertaining to division of any marital assets and liabilities, until he had received further information from the bankruptcy court.

¶ 3. In an order entered March 21, 2012, the chancellor stated that the bankruptcy trustee had informed him of the dismissal of the bankruptcy proceedings. In another order entered August 6, 2012, the chancellor noted that the parties had reached an agreement to partially distribute their assets and liabilities. The chancellor stated that any remaining issues as to “the responsibility of the indebtedness of the respective parties, spousal support/alimony, attorney’s fees[,] and/or costs owed by the parties” would be reserved until the final hearing.

¶ 4. On October 23, 2012, the chancellor entered a “final” order disposing of the parties’ assets and liabilities. The chancellor found that Anthony had not made a single payment toward his spousal-support obligation and that the only money Lori had received was $5,903.01 garnished from Anthony’s wages and $4,428 from the bankruptcy trustee following the dismissal of Anthony’s bankruptcy proceeding. Therefore, the chancellor found that Anthony still owed $64,668.99 in spousal support and that he was in contempt of court for his failure to pay. The chancellor also awarded Lori $1,200 a month in periodic alimony. Finally, the chancellor stated that the record would remain open to allow Lori’s attorney to present an itemized statement of attorney’s fees and that he would then determine whether the fees would be awarded under the factors set forth in McKee v. McKee, 418 So.2d 764, 767 (Miss.1982).

¶ 5. On January 10, 2013, the chancellor entered an order in response to Anthony’s motion to reconsider and set aside the order disposing of the parties’ assets and liabilities. The chancellor found that Anthony’s motion did not “set forth any specific issue upon which the [c]ourt allegedly erred nor any other grounds as a basis of said Motion and[,] accordingly, said Motion for Reconsideration and to Set Aside Judgment is not well taken and is hereby denied.” Anthony now appeals the chancellor’s order and raises several issues. However, before considering any of Anthony’s arguments, we must determine whether this Court has jurisdiction over his appeal.

DISCUSSION

¶ 6. “Jurisdictional matters are questions of law, which we review de novo.” Maurer v. Boyd, 111 So.3d 690, 693 (¶ 10) (Miss.Ct.App.2013) (citation omitted). “Though neither party raises the finality and appealability of the [chancellor’s purportedly] final order [disposing of the parties’ assets and liabilities], before addressing the merits [of this appeal,] we must consider the threshold issue of jurisdiction.” Thompson v. True Temper Sports, Inc., 74 So.3d 936, 938 (¶ 6) (Miss.Ct.App.2011) (citation omitted). “Generally, only final judgments are appealable.” Walters v. Walters, 956 So.2d 1050, 1053 (¶ 8) (Miss.Ct.App.2007) (citation omitted). “A final, appealable! ] judgment is one that adjudicates the merits of the controversy which settles all issues as to all the parties and requires no further action by the [trial] court.” Id. (citation and internal quotation marks omitted). “When all the issues in a case or claims against all the parties are not resolved in a judgment, no appeal of right can be taken.” Thompson, 74 So.3d at 938 (¶ 6) (citation omitted).

¶ 7. Rule 54(b) provides the following:

When more than one claim for relief is presented in an action ... or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated[,] which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties!,] shall not terminate the action as to any of the claims or parties!,] and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

“If the court chooses to enter such a final order, it must do so in a definite, unmistakable manner.” M.R.C.P. 54 cmt. “Absent a certification under Rule 54(b), any order in a multiple[-]party or multiple[-]elaim action, even if it appears to adjudicate a separable portion of the controversy, is interlocutory.” M.R.C.P. 54 cmt.

¶ 8. Anthony argues on appeal that the chancellor erred by awarding attorney’s fees to Lori. However, the record contains no order by the chancellor awarding such fees to Lori. As reflected in the record, Lori filed three separate petitions for citation of contempt against Anthony prior to the judgment of divorce. In each petition, Lori requested all reasonable attorney’s fees incurred in bringing the action. Based upon the proof Lori’s attorney presented, the chancellor found that Lori incurred the following attorney’s fees in connection with the contempt actions: $671.71 for the first petition; $692.66 for the second petition; and $600 for the third petition. See Miss. Code Ann. § 93-5-23 (Rev.2013) (providing the chancellor with discretion to award attorney’s fees, if need be, in a divorce proceeding).

¶ 9. As previously noted, however, following the parties’ divorce, the chancellor entered an order on August 6, 2012, in which he reserved ruling on several issues remaining between the parties, including new attorney’s fees incurred, until the final hearing. Then, in his “final order” disposing of the parties’ assets and liabilities, the chancellor specifically stated that “the record shall remain open so as to allow [Lori’s attorney] to present an itemized statement for her attorney’s fees[,] which shall be marked as the final exhibit in the record upon presentation of said bill.” The chancellor further stated that he would determine whether to award attorney’s fees after considering the factors set forth in McKee.

¶ 10. Because the chancellor has not yet adjudicated the issue of attorney’s fees, we find that the order Anthony appeals from, though titled a “final order,” is not a final, appealable judgment pursuant to Rule 54(b). In addition, though an exception exists to the final-judgment rule, it fails to apply in this case because the chancellor neither gave an expressed direction for “the entry of a final judgment as to one or more but fewer than all of the claims” nor an “expressed determination that there [was] no just reason for delay.” M.R.C.P. 54(b).

¶ 11. Without an “unmistakable indication that the [chancellor] intended to grant a final[,] appealable judgment!,] ... [the order Anthony] attempts to appeal is interlocutory.” Thompson, 74 So.3d at 939 (¶ 10) (citing M.R.C.P. 54(b) & cmt.). Interlocutory orders are not appealable unless the Mississippi Supreme Court grants permission to appeal under Rule 5 of the Mississippi Rules of Appellate Procedure. Thompson, 74 So.3d at 939 (¶ 11); Maurer, 111 So.3d at 693 (¶ 13). Because Anthony neither sought nor obtained permission under Rule 5 to appeal the chancellor’s interlocutory order, and because the issue of attorney’s fees remained pending before the chancellor, we must dismiss this appeal for lack of jurisdiction and remand the case for determination of the remaining issues between the parties.

¶ 12. THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

GRIFFIS, P.J.,

dissenting:

¶ 13. I disagree with the majority’s decision to dismiss this case for lack of jurisdiction. Because I consider the judgment to be final and appealable, I would address the merits of this appeal. I therefore respectfully dissent.

¶ 14. The majority finds that the chancellor’s “Final Order Disposing of Assets and Liabilities,” dated October 23, 2012, was not a final judgment because the issue of attorney’s fees had not been decided. In paragraph 6, the chancellor ruled:

The Court further finds that the record shall remain open for Lori Lynn New-son to present an itemized statement for her attorney’s fees which shall be marked as the final exhibit in the record upon presentation of said bill[;] the Court will determine whether attorney's] fees will be awarded taking into consideration the facts set forth in McKee.

¶ 15. I am of the opinion that Lori has abandoned her claim for attorney’s fees. She did not bring the matter to the attention to the chancellor in a timely manner. Her failure to bring the issue of attorney’s fees to the chancellor’s attention should not allow her to delay Anthony’s appeal.

¶ 16. This case was heard by the chancellor over several days: April 14, 2010; August 16, 2010; April 5, 2011; and September 11, 2012. At the September 11, 2012 hearing, the following exchange occurred:

Lori’s Counsel: And then also I would like to reserve the right to submit my attorney’s fees to the Court for consideration based on my time that has accrued since our last contempt order.
Court: You may need to do that.... What I’ll do is leave the record open and allow you to make that as your final exhibit....

¶ 17. The record includes a letter, dated September 24, 2012, from Lori’s counsel that is addressed to Lori. This letter contains an itemization of attorney’s fees and expenses incurred, and the total amount is $6,642.19. The exhibit sticker indicates that it was “submitted 9/26/12.”

¶ 18. Thereafter, on October 23, 2012, the chancellor entered the “Final Order Disposing of Assets and Liabilities.” It was prepared and submitted by Lori’s counsel, and it did not include a ruling on attorney’s fees even though the information had been submitted to the chancellor. Certainly, when the order was submitted, counsel could have included a blank for the chancellor to award attorney’s fees. Instead, the order submitted did not address attorney’s fees except to leave the record open.

¶ 19. Under Mississippi Rule of Civil Procedure 59(e), Lori should have filed a motion to alter or amend the judgment, which must have been filed within ten days. Lori did not. As a result, I would find that she abandoned this claim because she failed to present it to the chancellor in a timely and proper manner.

¶ 20. In addition, after the October 23, 2012 order, this matter came before the chancellor on two different matters, and neither time did Lori’s counsel ask the chancellor to decide the issue of attorney’s fees. On October 31, 2012, Lori filed a petition to authorize the clerk to execute a quitclaim deed. The next day, Anthony filed a motion for reconsideration and to set aside the judgment. Then, on November 8, 2012, the chancellor executed an order that authorized the clerk to execute a quitclaim deed. Later, on December 10, 2012, Lori filed her response to the motion for reconsideration and to set aside the judgment. Lori did not bring the issue of attorney’s fees to the chancellor’s attention during any of these opportunities.

¶ 21. On January 10, 2013, the chancellor held a hearing and entered an order that denied the motion for reconsideration and to set aside the judgment. There is no transcript of that hearing. However, at that point, it appeared that this litigation was concluded before the chancellor. There was nothing in the order denying the motion for reconsideration to indicate that Lori presented her attorney’s fee request to the chancellor. On February 6, 2013, Anthony served his notice of appeal.

¶22. I find that Lori abandoned her claim for attorney’s fees when she failed to file a Rule 59(e) motion that requested an award of attorney’s fees within ten days of the October 23, 2012 order. I am of the opinion that this court has jurisdiction of the appeal and should consider the merits of the appeal, based on the judgment entered. I would not remand this case and give Lori a second bite at the apple to receive an award of attorney’s fees.

¶ 23. In addition, I am concerned that the majority’s ruling would allow Lori, the prevailing party before the chancellor and the appellee, to control when Anthony, the losing party before the chancellor and the appellant, may be able to pursue an appeal. Such should not be the case.

¶ 24. Finally, I am concerned with the manner in which the chancellor allowed the issue to be considered. The chancellor declared “that the record shall remain open” for a party to file evidence. That is not how courts in this state should admit evidence. Evidence must be admitted under the Mississippi Rules of Evidence. There is no rule that allows what the chancellor attempted to do here.

¶ 25. Lori could have presented her itemized statement of attorney’s fees through either her testimony or the testimony of her counsel. Next, she could have asked the chancellor to recess the hearing and continue it to another date to allow the presentation of evidence of attorney’s fees. Finally, Lori could have filed a motion to alter or amend the judgment under Rule 59(e), which requires the motion be filed within ten days. She did none of these three.

¶ 26. There is simply no legal authority for the chancellor to do what he tried to do here. Even without Anthony’s objection at trial, I will not agree to sanction such action that amends the rules of evidence by case decision.

ROBERTS AND FAIR, JJ„ JOIN THIS OPINION.

      . The record reflects that the chancellor's "final order” is not entitled "final judgment” and lacks Rule 5 4(b)'s certification language.

        . See also Wilton Acquisitions Corp. v. First Methodist Church of Biloxi, Miss., 85 So.3d 319, 324 (¶ 12) (Miss.Ct.App.2012) (finding no final, appealable order where the chancellor certified his order under Rule 54(b) but reserved ruling on an award of attorney's fees).

        .See Wilton Acquisitions Corp., 85 So.3d at 324 (¶ 12).

      . However, the clerk’s docket does not include a separate entry on September 26 to indicate that this letter was in fact filed.


author: LEE, C.J.,

text:
    Jerry Don FAIRLEY a/k/a Jerry D. Fairley a/k/a Jerry Fairly, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01950-COA.
    Court of Appeals of Mississippi.
    May 13, 2014.

      Jerry Don Fairley, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY AND FACTS

¶ 1. On November 17, 1997, Jerry Don Fairley pleaded guilty in the Forrest County Circuit Court to armed robbery. Fairley was sentenced to twenty years, with ten years to serve in the custody of the Mississippi Department of Corrections (MDOC), ten years suspended, and five years of probation with conditions. Fair-ley served his ten years and was released on or about July 15, 2007. On April 21, 2009, an affidavit was filed in the circuit court charging Fairley with several probation violations. During a hearing on May 27, 2009, Fairley admitted to two probation violations. The trial court revoked Fair-ley’s suspended sentence and ordered him to serve the remaining ten years of his sentence.

¶2. On May 10, 2012, Fairley filed a motion to dismiss his revocation. Treating Fairley’s motion as a motion for post-conviction relief (PCR), the trial court denied Fairley’s motion. Fairley now appeals, asserting the trial court erred in denying his motion for relief.

STANDARD OF REVIEW

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

DISCUSSION

¶ 4. Fairley argues on appeal that the trial court erred in denying his motion for relief. Fairley contends his probation was not properly revoked because he was never indicted for or convicted of any crime. However, “a conviction is not necessary to revoke probation. Probation may be revoked upon a showing that the defendant ‘more likely than not’ violated the terms of probation.” Younger v. State, 749 So.2d 219, 222 (¶ 12) (Miss.Ct.App.1999) (internal citation omitted). During the revocation hearing, Fairley was charged with violating the conditions of his probation by failing to pay his monthly supervision fee and by being charged with new crimes — manufacturing controlled substances and possession of precursor chemicals and controlled substances. Fairley denied the possession charge but admitted to the other charge. Fairley also admitted that he failed to pay his fee and was $300 in arrears.

¶5. The terms of Fairley’s probation state that “[the] defendant shall hereafter commit no offense against the laws of this or any state” and that he was required to pay supervision fees of twenty dollars per month. It appears the trial court had sufficient information to revoke Fairley’s suspended sentence. We find this issue to be without merit.

¶6. In a motion filed during the pendency of this appeal, Fairley contends he was not informed of the conditions of his probation during his plea colloquy. Fairley states the transcript from his plea hearing would prove his claim. In an order dated October 8, 2013, the supreme court treated Fairley’s motion as a supplement to his brief and passed it for consideration with the merits of Fairley’s appeal. However, the record contains a copy of Fairley’s probation order, which outlines the conditions of Fairley’s probation. The last page of the order states, “I accept the above probation in accordance with the terms thereof,” followed by Fairley’s signature. Since Fairley was informed of the conditions of his probation, we find his motion is without merit, and we deny relief.

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

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.


text:
    Corderro SEALES, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-00162-COA.
    Court of Appeals of Mississippi.
    May 13, 2014.

      Edmund J. Phillips Jr., Newton, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Corderro Seales was convicted of one count of possession of more than two but less than ten grams of cocaine and one count of possessing less than thirty grams of marijuana. Seales was also convicted as a second-offense drug offender and a habitual offender. He was sentenced to life imprisonment without eligibility for parole or any suspension or reduction of sentence, to be served in the custody of the Mississippi Department of Corrections. Seales appeals his conviction raising the following issue: whether the trial court erred in overruling his objection to a leading question at trial. Finding no error in the decision of the trial court, we affirm.

FACTS

¶ 2. Corderro Seales was stopped by Officer Jonathan Spears at a safety roadblock in Neshoba County, Mississippi. The following day, Officer Spears learned of an outstanding arrest warrant for Sea-les. Officer Spears spotted a car similar to the one Seales had been driving the night prior and effectuated a stop. Officer Spears identified the driver as Seales and informed him of the warrant for his arrest, arrested him, and placed him in the back seat of the squad car. Another officer, Josh Ray, arrived and followed Officer Spears and Seales in another squad ear. Officer Spears noticed Seales’s muffled speech and determined that something was in Seales’s mouth affecting his speech.

¶ 3. Officer Spears pulled over with Officer Ray and confronted Seales about the object in his mouth. After a struggle, Seales spit the bag out of his mouth onto the seat. The bag contained a green leafy substance and another bag with a rock-like substance. It was later confirmed that the green leafy substance was marijuana and the rock-like substance was' crack cocaine.

¶ 4. At trial the following question was posed to Ralph Scriple, an investigator with the Neshoba County Sheriffs Department: “Did you become aware through radio traffic that the Defendant had been put under arrest on that warrant by Officer Spears?” Trial counsel objected to the question on the ground of leading the witness. The trial court overruled the objection, and the following answer was elicited by the prosecutor: “Yes, sir, I know that they did pick him up and [were] transporting him to the jail.”

¶ 5. Seales was found guilty of possession of more than two but less than ten grams of cocaine and possession of less than thirty grams of marijuana. Seales was also found to be a second-time drug offender and habitual offender and was sentenced to life in prison, without the possibility of a reduction of sentence, to be served in the custody of the Mississippi Department of Corrections. Seales appeals.

DISCUSSION

¶ 6. The standard of review is whether the trial court abused its discretion. Fulton v. State, 122 So.3d 816, 817 (¶ 4) (Miss.2013).

¶ 7. Seales argues that the trial court erred when it overruled trial counsel’s objection to a leading question. Further, Seales states that the answer the witness gave was hearsay, and the verdict should be overturned. However, Seales does not address the hearsay issue as an assignment of error; thus it is barred. See Giles v. Stokes, 988 So.2d 926, 929 (¶ 14) (Miss.Ct.App.2008). Additionally, Seales did not object on the basis of hearsay, so it is again barred. See Williams v. State, 684 So.2d 1179, 1187 (Miss.1996).

¶8. Seales refers to Mississippi Rule of Evidence 611(c), which states:

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

The leading question occurred during the direct examination of Investigator Scriple. The Supreme Court of Mississippi, however, has held that “[g]enerally[,] the decision to allow leading questions rests within the sound discretion of the trial court and will not be disturbed absent a showing of an abuse of discretion.” Parks v. State, 930 So.2d 383, 387 (¶ 9) (Miss.2006). The judge has some discretion in allowing leading questions. Id. In order to develop preliminary matters, leading questions are often used. Gates v. State, 936 So.2d 335, 341 (¶ 23) (Miss.2006). The prosecutor in the trial court had previously questioned the arresting officer along with the officer who witnessed Seales spit out the bag of drugs. The leading question posed to the third witness on direct examination was used to develop a preliminary matter to show how the arresting officer was involved. We find that there was no abuse of discretion in overruling the objection since the leading questions involved preliminary matters that had already been put into evidence in detail by two previous witnesses. Moreover, “the use of leading questions is not a ground for reversal unless the trial court abused its discretion, and the decision resulted in substantial injury to the appealing party.” Fulton, 122 So.3d at 817 (¶ 4). Here, Seales suffered no such injury from the trial court’s ruling.

¶ 9. The testimony elicited from Investigator Scriple is similar to the testimony of Officer Spears about the arrest warrant. We find that the trial court did not abuse its discretion in overruling the objection, and that Seales suffered no substantial injury as a result. Therefore, we affirm the trial court’s judgment.

¶10. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT OF CONVICTION OF ONE COUNT OF POSSESSION OF MORE THAN TWO GRAMS BUT LESS THAN TEN GRAMS OF COCAINE AND ONE COUNT OF POSSESSION OF LESS THAN THIRTY GRAMS OE MARIJUANA AND SENTENCE AS A HABITUAL OFFENDER AND SECOND DRUG OFFENDER OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR SUSPENSION OR REDUCTION OF SENTENCE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHOBA COUNTY.

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


author: MAIN, Justice. SHAW, Justice

text:
    Mildred MCDONALD v. SPRINGHILL MEDICAL COMPLEX, INC., et al.
    1111625.
    Supreme Court of Alabama.
    May 31, 2013.
    Rehearing Denied Aug. 23, 2013.
    Jonathan B. Friedlander of The Fried-lander Law Firm, Mobile, for appellant.
    Philip H. Partridge and Bryan D. Smith of Partridge Smith, P.C., Mobile, for ap-pellees Springhill Medical Complex, Inc., Springhill Health Services, Inc., Springhill Hospitals, Inc., and Chunchula Energy Corporation.
    Michael J. Cohan and William T. Ashley III of Webster, Henry, Lyons, White, Bradwell & Black, P.C., Montgomery, for appellee Mcllwain Construction, Inc.
    Caroline T. Pryor and Sarah C. Black-wood of Carr, Allison, Daphne, for appellee Bonemenders, LLC.
   MAIN, Justice.

AFFIRMED. NO OPINION.

MOORE, C.J., and STUART, BOLIN, PARKER, MURDOCK, and WISE, JJ., concur.

SHAW and BRYAN, JJ., concur in part and dissent in part.

SHAW, Justice

(concurring in part and dissenting in part).

Mildred McDonald tripped and fell on the sidewalk on the premises of Alabama Orthopaedic Clinic, P.C. (“AOC”). She sued various entities that allegedly owned, leased, maintained, or operated the facilities and property where the sidewalk was located (hereinafter “the defendants”), seeking damages for negligence and wantonness. The trial court entered a summary judgment for the defendants, and McDonald appeals.

“ ‘ “This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a pri-ma facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12. ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).” ’
“Prince v. Poole, 935 So.2d 431, 442 (Ala.2006) (quoting Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004)).”

Brown v. W.P. Media, Inc., 17 So.3d 1167, 1169 (Ala.2009).

I concur with the majority’s no-opinion affirmance of the trial court’s summary judgment as to McDonald’s wantonness claim. As to the claim alleging that the defendants were negligent, I believe that McDonald presented substantial evidence creating a genuine issue of material fact that precluded a summary judgment on that claim.

McDonald alleges that she tripped on a joint between the sidewalk and a handicap-access ramp and fell. Apparently, the ramp was installed in 2005 in the existing sidewalk. She testified in her deposition that her foot hit something on the sidewalk in the approximate area of the joint between the sidewalk and the ramp, causing her to trip and fall. McDonald’s grandson, who was present when she fell, testified that there was a difference in elevation at the joint between the old sidewalk and the added ramp. Additionally, McDonald presented affidavit testimony from an expert, Harvey Gandler, a licensed architect, who had examined the joint and who also stated that there was a difference in elevation at the point where the sidewalk and the ramp joined, resulting in a drop-off instead of a slope. Gandler testified that this change in elevation did not comply with the Americans with Disabilities Act; that it was a “toe-catcher” that was “not something that is obvious or noticeable to an average person walking on the sidewalk”; that it could not be seen by someone walking toward the AOC building and was not “observable” to those walking from the building if they were not looking for it or were not looking toward the ground; that there was no marking to call attention to the change in elevation; that the change in elevation was not so high as to cast a shadow across the joint; that the fact it was located at a handicap-access ramp at an orthopedic clinic increased the likelihood that the area would be frequented by people with mobility problems, who are more at risk of tripping over a change in elevation; and that it was his professional opinion that the sidewalk was defective and dangerous to AOC patients like McDonald.

I believe that, when viewed in a light most favorable to McDonald, the record includes evidence indicating the existence of factual questions, as to whether the defendants were negligent and as to whether the joint created a danger that was not open and obvious. I thus respectfully dissent from the no-opinion affirmance of the summary judgment as to McDonald’s negligence claim.

BRYAN, J., concurs.

      . 42U.S.C. § 12101 etseq.