author: ISHEE, J.,

text:
    RIVER REGION HEALTH SYSTEMS and Zurich American Insurance Company, Appellants v. Melody ADAMS, Appellee.
    No. 2012-WC-00961-COA.
    Court of Appeals of Mississippi.
    June 4, 2013.

      W. Bienville Skipper, Tara S. Clifford, attorneys for appellants.
    David M. Sessums, attorney for appel-lee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. This appeal involves a review of an opinion of the Mississippi Workers’ Compensation Commission (the Commission). The issue in this case is whether the Commission’s opinion was supported by substantial evidence. Melody Adams was employed as a licensed practical nurse (LPN) at the River Region Health Systems Hospital (River Region). During the course of her employment, she fell and injured her back. In April 2009, Adams filed a petition to controvert with the Commission. In December 2011, the administrative judge (AJ) issued an order finding Adams permanently totally disabled because of her work-related injury. River Region and Zurich American Insurance Company (Zurich) then appealed the AJ’s decision to the full Commission. The full Commission affirmed the decision. From that ruling, River Region and Zurich now appeal, arguing the decision was not supported by substantial evidence.

FACTS AND PROCEDURAL HISTORY

¶ 2. Adams was employed as an LPN at River Region. She was earning approximately $387.65 per week in her position. On April 2, 2007, while tending to a patient’s intravenous therapy, Adams stepped in some water on the floor and fell. Immediately thereafter, Adams sought treatment in River Region’s emergency room. Initially, she was removed from work for two or three days but then returned to her regular duties. However, in January 2008, she was assigned sedentary-duty restrictions.

¶ 3. On April 23, 2007, Adams sought treatment from her family physician, Dr. Hildon Sessums. He had treated Adams previously in November 2003 for back pain radiating into her left leg. At her April 2007 visit, Adams complained of back pain and radicular pain in her left leg and hip. Dr. Sessums prescribed medication and administered injections. Dr. Sessums then recommended that Adams visit Dr. Robert Strong for epidural steroid injections. Adams continued to see Dr. Ses-sums for medication management.

¶ 4. Dr. Sessums testified regarding Adams’s physical restrictions. Adams was only allowed to lift a maximum of ten pounds- and could not sit or stand for prolonged periods of time. She also only had approximately twenty five percent of the normal range of motion in the lumbar spine and was unable to flex more than thirty degrees.

¶ 5. On June 21, 2007, per Dr. Sessums’s referral, Adams visited Dr. Strong. Dr. Strong compared Magnetic Resonance Imaging (MRI) tests from 2004 to those taken in April 2007. He found that a change had occurred in Adams’s L4-5 disc. The April 2007 MRI revealed a bulging disc, with a mild facet change, which was worse than in the previous MRI. Dr. Strong recommended lumbar epidural steroid injections. Adams underwent two injections but experienced no relief.

¶ 6. On October 5, 2007, Adams saw Dr. Jack Moriarity, a neurosurgeon. He reviewed Adams’s MRI films and found mild multilevel spondylosis, mild L3-4 disc degeneration, and significant disc degeneration at L4-5. He continued Adams on light-work restrictions. Dr. Moriarity concluded that Adams did not need surgery and referred her to Dr. Rahul Vohra for rehabilitation.

¶ 7. On November 2, 2007, Adams saw Dr. Vohra. He modified her physical therapy, encouraged her to go forward with lumbar facet injections, and continued her on sedentary duty. On December 17, 2007, Dr. Vohra found that Adams showed no improvement from further physical therapy or facet injections. He opined that further therapy would be of no benefit. Dr. Vohra assessed a seven percent impairment to the body as a whole and permanently limited her to a very light level of work, which included lifting no more than twenty pounds and limited bending, stooping, and twisting.

¶ 8. As of January 2008, Dr. Sessums placed Adams on sedentary duty, and by April 2009, he determined she was unable to work. His decision was based on her inability to sit at work for any period of time, her need for bed rest, and her inability to perform the duties of her job. Dr. Sessums also considered pain in evaluating Adams’s disability. He stated that he would assess an additional ten percent impairment for Adam’s pain in addition to the seven percent disability assessed by Dr. Vohra.

¶ 9. In January 2008, Adams began working as a ward clerk due to her work restrictions. As a ward clerk, she compiled patient charts, placed orders into the computer system, and organized the nursing floor. She continued in this position until she was removed from work by her physician in April 2009. Thereafter, River Region offered Adams a full-time position as a ward clerk. Adams declined the position because it would not pay her the amount she earned as an LPN.

¶ 10. Adams testified that she was contacted by nurses at two different facilities, but they would not hire her because of her medical problems. She testified she had not sought employment outside of the nursing field. Adams also stated she had signed up at the Workforce Investment Network Center (WIN) a couple of weeks before the hearing; however, she acknowledged that she had only done so because her lawyer told her she needed to seek employment.

¶ 11. On April 22, 2009, Adams filed a petition to controvert with the Commission. A hearing was held before the AJ on December 6, 2010. On December 5, 2011, the AJ entered an order finding Adams was permanently totally disabled because of the injury. In assessing the evidence, the AJ considered Dr. Sessums’s testimony to be the most persuasive testimony due to the fact that he had been treating her since 2005, knew her pre-injury condition, and had observed her work environment. The AJ awarded Adams $258.17 per week for 450 weeks beginning April 2, 2007, a ten percent penalty for any untimely paid installments, and all costs associated with her medical services and supplies.

¶ 12. On December 14, 2011, River Region and Zurich appealed the AJ’s decision to the full Commission. The full Commission affirmed the AJ’s decision on May 24, 2012. River Region and Zurich now appeal to this Court. On appeal, they argue the Commission’s decision was not supported by substantial evidence.

DISCUSSION

¶ 13. “Our scope of review in workers’ compensation cases is limited to a determination of whether the decision of the Commission is supported by substantial evidence.” Moore’s Feed Store, Inc. v. Hurd, 100 So.3d 1011, 1017 (¶ 20) (Miss.Ct.App.2012) (citation omitted). We will only reverse the decision of the Commission if it is clearly erroneous and contrary to the overwhelming weight of the evidence. Id. at 1017-18 (¶ 22) (citation omitted). When the Commission adopts the AJ’s findings and conclusions, we review the AJ’s findings and conclusions as those of the Commission. Id. (citation omitted).

I. Reasonable Effort to Secure Employment

¶ 14. First, River Region and Zurich argue that Adams failed to prove that she made a reasonable effort to secure employment. The AJ stated as follows

It is noted that [Adams] was not required to make a job search in order to establish a prima facie case of disability, as she was medically excused from this requirement by the testimony of her treating physician, Dr. Hildon Sessums, that she could not return to any form of gainful employment and was thereby permanently totally disabled.

¶ 15. “When a claimant has suffered only a permanent partial disability, ‘the claimant bears the burden of making a prima facie showing that he has sought and been unable to find work in the same or other employment.’ ” Pike Cnty. Bd. of Supervisors v. Varnado, 912 So.2d 477, 482 (¶ 28) (Miss.Ct.App.2005) (quoting Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1226 (Miss.1997)). “If the claimant reports back to work at his current employer but the employer refuses to hire him, the claimant has established a prima facie case of total disability.” Id. “The burden then shifts to the employer to prove that the claimant has suffered only a partial disability or that the claimant has suffered no loss of wage[-]earning capacity.” Id.

¶ 16. In Ameristar Casino-Vicksburg v. Rawls, 2 So.3d 675 (Miss.Ct.App.2008), the claimant, James Rawls, was awarded permanent total disability benefits by the Commission. Rawls worked as a slot-machine technician and injured his back while performing the duties of his employment. Id. at 676 (¶ 2). Rawls underwent surgery and physical therapy for his injuries. Id. at 677 (¶ 4). After his treatment was complete, his primary physician, Dr. Brian Bulloch, assigned a twenty-three percent permanent impairment rating. Id. He was limited to sedentary to light-duty work restrictions and could not lift more than ten to twenty pounds. Id. Dr. Vohra, a specialist, assigned a permanent disability rating of ten percent, with a light-duty level of work restriction. Id. at 678-79 (¶1¾.

¶ 17. After Rawls was released by his doctor, Ameristar Casino offered Rawls employment as a transportation dispatcher. Id. at 677 (¶ 5). He would have made the same pay as a slot machine technician and would have been allowed to sit and stand as needed. Id. Rawls turned down the position because he would have been unable to perform the duties of the position. Id. He was also unable to make the drive from his hometown in Louisiana to Vicksburg, Mississippi, each day. Id. at 677-78 (¶ 5). Rawls did not make any other job search other than asking a few friends for work, which they declined to provide. Id. at 679 (¶ 13).

¶ 18. Dr. Bulloch found that Rawls was not a candidate for employment because he was unable to sit or stand in any position for any significant period of time and was in significant pain. Id. at 678 (¶ 6). Dr. Bulloch stated: “I think that positions would be few and far between. He was not employable in most situations.” Id.

¶ 19. The AJ found that Rawls was permanently and totally disabled. Id. at 679 (¶ 14). Both the Commission and the circuit court affirmed the AJ’s ruling. Id. at (¶ 15). Ameristar then appealed. Id. On appeal, we found that Rawls “met his burden of proof by making out a prima facie case of work-related disability.” Id. at 682 (¶ 25). We stated: “We can find that Rawls’s job search, which was really no more than a rejection of the one job offered by Ameristar, was reasonable” under the circumstances. Id. at (¶ 26). We cited Rawls’s limited education, his age, and his work history in manual-labor jobs in considering his ability to work in a different position. Id. This Court found his injury and extreme pain severely limited his ability to work. Id. at 682-83 (¶ 26). We then affirmed the decision of the Commission. Id. at 683 (¶ 26).

¶ 20. The facts in Ameristar are similar to the facts in the instant case. Here, it is uncontested that Adams was unable to perform the duties of the employment she held at the time of her injury. She was, therefore, released from her position. However, like Rawls, she was offered a different position by her employer. Although she worked as a ward clerk for a period of time, and River Region offered her a job in that capacity, Adams and Dr. Sessums testified that she was unable to work as a ward clerk. The evidence established that Adams was in a great deal of pain, could not stand for longer than fifteen minutes, and could not sit for more than thirty minutes at a time. Furthermore, she was unable to drive during the six-month period prior to her hearing. In addition, like Rawls, Adams had worked as an LPN for a long period of time, more than twenty years. The only other position she had held was as a receptionist more than two decades prior to her injury. Thus, she was limited in the types of jobs that would be available to her even if she was able to work.

¶ 21. Although Adams only conducted a very limited job search, we find it was reasonable under the circumstances. The fact that she was unable to return to her previous position as an LPN established a prima facie case of disability. The burden then shifted to the employer to establish only a partial disability or no loss of wage-earning capacity. The employer failed to do so. The employer introduced medical evidence contrary to Dr. Sessums’s opinion; however, as will be discussed below, the Commission found Dr. Sessums’s opinion more credible. The medical evidence and Adams’s own testimony establish that she is unable to hold any position; therefore, her job search was reasonable.

II. Medical Testimony

¶ 22. Next, River Region and Zurich argue the Commission erred by favoring the general practitioner’s opinion over the treating specialist’s opinions. As noted above, the AJ found Dr. Sessums’s opinion more persuasive due to his past treatment of Adams before the injury and his familiarity with her work environment.

¶23. “The Commission ‘serves as the ultimate fact[-]finder in addressing conflicts in medical testimony and opinion.’” Smith v. Tronox LLC, 76 So.3d 774, 780 (¶ 23) (Miss.Ct.App.2011) (quoting Raytheon Aerospace Support Servs. v. Miller, 861 So.2d 330, 336 (¶ 13) (Miss.2003)). “Where medical expert testimony is concerned, the supreme court has held that whenever the expert evidence is conflicting, the Court will affirm the Commission’s decision whether the award is for or against the claimant.” Id. “Even if this Court would not have reached the same decision as the Commission, we must affirm when the Commission’s findings are supported by substantial evidence and are neither arbitrary nor capricious.” Id.

¶ 24. While there was some conflicting evidence as to whether Adams was permanently totally disabled, it was a dispute to be resolved by the Commission. The Commission found in Adams’s favor. Dr. Sessums opined that Adams was completely unable to work. However, Dr. Vohra found that she could perform a very light level of work. As noted above, Dr. Ses-sums’s had a history of treating Adams and was familiar with her work environment. We find that the Commission did not err by finding Dr. Sessums’s evaluation more persuasive. Accordingly, this issue is without merit.

III. Substantial Evidence

¶ 25. Finally, River Region and Zurich argue the Commission’s order was not supported by substantial evidence. They essentially make the same arguments addressed in the prior two sections. They argue the medical testimony and lack of a job search render the Commission’s decision improper.

¶ 26. As noted above, the Commission found Dr. Sessums’s evaluation and testimony persuasive. The medical evidence in conjunction with Adams’s testimony supports the decision of the Commission. Furthermore, we have found Adams’s job search reasonable. We find that there was substantial evidence to support the Commission’s decision. This issue is -without merit.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: JAMES, J.,

license: Public Domain

text:
    Eric PIERCE a/k/a Eric V. Pierce, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00406-COA.
    Court of Appeals of Mississippi.
    June 4, 2013.

      Eric Pierce, appellant, pro se.
    Office of the Attorney General by La-Donna C. Holland, attorney for appellee.
    Before LEE, C.J., FAIR and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Eric Pierce appeals the Attala County Circuit Court’s dismissal of his motion for post-conviction relief (PCR) as a successive writ. In the only issue he raises on appeal, he challenges this decision. Upon review, we find that the circuit court properly dismissed Pierce’s second PCR motion as a successive writ. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On February 3, 2009, Pierce was indicted for armed robbery. Thereafter, Pierce entered a guilty plea, and he was sentenced to serve seventeen years in the custody of the Mississippi Department of Corrections (MDOC). A judgment of conviction and sentence was entered on March 2, 2009.

¶ 3. On August 10, 2010, Pierce filed a PCR motion, arguing that his guilty plea was involuntary and that he had received ineffective assistance of counsel. On August 19, 2010, the circuit court entered an order dismissing Pierce’s PCR motion. Pierce never appealed the circuit court’s dismissal of this PCR motion.

¶ 4. On January 30, 2012, Pierce filed a second PCR motion, again arguing that his guilty plea was involuntary and that he had received ineffective assistance of counsel. On February 3, 2012, the circuit court entered an order dismissing Pierce’s PCR motion:

On this day, this court considered the [PCR motion] that was filed by [Pierce] on January 30, 2012. This court, having considered the matter, finds that this is the second time that Pierce has sought post-conviction relief from this court based on his [a]rmed [r]obbery conviction in Attala County Circuit Court [c]ause [n]umber 09-0016-CR. He was previously denied post-conviction relief in an order entered on August 19, 2010, in Attala County Circuit Court [c]ause [n]umber 10-0217-CV-L.
A review of Pierce’s current motion shows that he is seeking relief from the court on the same grounds that were raised in the motion that was filed and subsequently denied in [c]ause [n]umber 10-0217-CV-L. Thus, the [PCR motion] should be [dismissed] because it is a second or subsequent motion for post-conviction relief and is barred by Mississippi Code Annotated [s]ection 99-39-23(6).
It is therefore ordered and adjudged that the [PCR motion] filed on January 30, 2012[,] is [dismissed].

¶ 5. Pierce appealed the circuit court’s dismissal of his second PCR motion.

DISCUSSION

¶ 6. “When reviewing a [circuit] court’s denial or dismissal of a motion for post-conviction relief, we will reverse the judgment of the [circuit] court only if its factual findings are clearly erroneous; however, we review the circuit court’s legal conclusions under a de novo standard of review.” Grogan v. State, 89 So.3d 617, 619 (¶ 5) (Miss.Ct.App.2012) (quoting Beal v. State, 58 So.3d 709, 710 (¶ 2) (Miss.Ct.App.2011)). Mississippi Code Annotated section 99-39-23(6) (Supp.2012) states that “any order dismissing the petitioner’s motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article.” (Emphasis added). Thus, successive PCR motions are procedurally barred from this Court’s review on appeal unless the petitioner meets an exception to the procedural bar. See id.

¶7. In the case before us, Pierce does not allege that he meets any of the exceptions to the procedural bar found in section 99-39-23(6). Instead, Pierce merely argues the same issues raised in his first PCR motion: that his guilty plea was involuntary and that he had received ineffective assistance of counsel. As previously noted, the circuit court had already issued its opinion and order denying Pierce any relief on those grounds. Therefore, Pierce’s second PCR motion is barred as a successive writ. Notwithstanding the procedural bar, we address Pierce’s arguments.

¶ 8. First, Pierce argues that his guilty plea was involuntary. “For a guilty plea to be valid[,] it must be made ‘voluntarily and intelligently.’” Hoyt v. State, 952 So.2d 1016, 1019 (¶ 7) (Miss.Ct.App.2007) (citing Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992)). “A plea is deemed ‘voluntary and intelligent’ only where the defendant is advised concerning the nature of the charge against him and the consequences of the plea.” Id. (citing Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991)). “Specifically, a defendant must be advised of the maximum and minimum sentences that may be imposed and ‘that a guilty plea involves a waiver of the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self[-]inerimination.’ ” Id. at 1019-20 (¶ 7).

¶ 9. In this case, Pierce argues that he was under the influence of drugs at the time of his guilty plea, which made his plea involuntary. However, the plea colloquy clearly shows the opposite:

Court: Are you under the influence of any drugs or alcohol or intoxicants at this time?
Pierce: No, sir.
Court: Do you have any disabilities of mind or problems with your thought processes or problems that would in any way interfere with your ability to understand these proceedings?
Pierce: No, sir.

We note that “[gjreat weight is given to statements made under oath and in open court[.]” Id. at 1020 (¶ 8). Pierce clearly stated — under oath — that he was not under the influence of any drugs or other substances. This argument is without merit.

¶ 10. Pierce also claims that his plea was involuntary because he was not informed that his guilty plea waived his right against self-incrimination. However, the plea colloquy shows that the circuit court informed Pierce that he would be waiving several constitutional rights, including the right against self-incrimination:

Court: Now, Mr. Pierce, under the state and federal constitutions, there are a number of constitutional rights that you will be waiving or giving up by entering a plea of guilty to the charge. The constitutional rights being these: You’ve got the constitutional right to a speedy public trial by a jury of your peers. You’ve got a right to be present at trial. You’ve got a right to testify at trial or a right to remain silent at trial. You’ve got the right to cross-examine witnesses who come to court and testify against you, and you’ve got the right to use the process of this court to compel witnesses to come to court and testify on your behalf. If you chose to go to trial, you would have the right to have a jury instructed that you’re presumed to be innocent; that before they could convict, all 12 of the jurors would have to agree on your guilt[,] and they would have to find you guilty beyond a reasonable doubt. Further, if you were tried by a jury and convicted, you could appeal the conviction to the Supreme Court or Court of Appeals of this state; and an attorney would be appointed to represent you for appeal purposes if you couldn’t afford to hire one. However, by entering a plea of guilty to this charge, there cannot be any appeal from these proceedings. Mr. Pierce, do you understand all these constitutional rights?
Pierce: Yes, sir.
Court: And is it your desire at this time to waive or give those constitutional rights up and enter a plea of guilty to the crime of armed robbery?
Pierce: Yes, sir.

Advising a criminal defendant that he has the right to testify or not testify advises a criminal defendant that he has the right against self-incrimination. See Smith v. State, 935 So.2d 412, 413-15 (¶¶ 3-7) (Miss.Ct.App.2006). We find that Pierce was adequately informed that he would be waiving his right against self-incrimination by entering a plea of guilty. This issue is without merit.

¶ 11. Finally, Pierce argues that he received ineffective assistance of counsel because his attorney did not properly investigate his mental state at the time of the guilty-plea hearing. To prevail on an ineffective-assistance-of-counsel claim, Pierce must prove that “(1) his counsel was deficient and (2) that the deficiency prejudiced [his] defense.” Fair v. State, 102 So.3d 1165, 1168 (¶ 9) (Miss.Ct.App.2012) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “The deficiency and any prejudicial effect are assessed by looking at the totality of the circumstances.” Id. (quoting Bell v. State, 754 So.2d 492, 495 (¶ 7) (Miss.Ct.App.1999)). “In proving an ineffective-assistance-of-counsel claim, a strong presumption exists that counsel’s performance was reasonable, and ‘the defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. (quoting Gavin v. State, 72 So.3d 570, 575 (¶ 12) (Miss.Ct.App.2011)).

¶ 12. In the case before us, the transcript of the plea hearing includes the following exchange between the circuit judge and Pierce:

Court: Did you have an opportunity to read this petition to enter a plea of guilty and go over it with [your attorney]?
Pierce: Yes, sir.
Court: When you read it and went over it with her, did you understand the contents of it?
Pierce: Yes, sir.
Court: Has [your attorney] met the expectations of what you believe a lawyer representing you in this case should do for you?
Pierce: Yes, sir.
Court: And are you satisfied that she’s had your best interest at heart throughout this case?
Pierce: Yes, sir.
Court: Do you have any complaints about that representation at all?
Pierce: No, sir.

Thus, the record clearly shows that Pierce was satisfied with his attorney’s services. A defendant’s “declarations during the plea colloquy that he was satisfied with the services of his lawyer are presumptively true. ‘Solemn declarations in open court carry a strong presumption of verity.’ ” Fair, 102 So.3d at 1168-69 (¶ 11) (quoting Bell, 754 So.2d at 495 (¶ 7)). The record does not show that the attorney’s performance was deficient and that the deficiency was prejudicial to Pierce’s defense as required by Strickland. Therefore, Pierce’s ineffective-assistance-of-counsel claim is without merit.

¶ 13. Finally, we note that Pierce filed a motion for the appointment of counsel. We see no reason under the Uniform Post-Conviction Collateral Relief Act to grant this motion. Therefore, the motion is denied.

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

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


author: ROBERTS, J.,

text:
    Bruce Allen RANKIN, Appellant v. AVERITT EXPRESS, INC. (a Self-Insured), Appellee.
    No. 2012-WC-00602-COA.
    Court of Appeals of Mississippi.
    June 11, 2013.

      Darryl Moses Gibbs, Jennie Southerland Hoyle Pitts, Jackson, attorneys for appellant.
    Sandra Taylor Doty, David E. Stovall, Jackson, attorneys for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. The Mississippi Workers’ Compensation Commission (Commission) reversed the administrative judge’s (AJ) order that found Bruce Rankin suffered a compensa-ble work-related injury entitling him to receive workers’ compensation benefits from Averitt Express, his employer at the time of injury. Rankin appeals and requests this Court to determine whether the Commission erred in its decision. Finding no error, we affirm the Commission’s order.

FACTS AND PROCEDURAL HISTORY

¶ 2. Rankin was employed by Averitt Express as a supply-chain solutions driver. This job required Rankin to pick up a load of freight and deliver it to Dollar General stores in Mississippi and Louisiana. The freight was loaded onto the trucks using carts called rolltainers, and upon arriving at a store, Rankin would have to unload these rolltainers from the truck using a motorized lift. Depending on the amount of freight, each rolltainer could weigh between 200 and 1,000 pounds.

¶ 3. Rankin claimed that on October 1, 2009, he was making a delivery to a Dollar General store when a 1,000-pound rolltainer rolled across the inside of the truck and pinned him against the truck wall. As a result, he claimed he had to push the heavy rolltainer off of his chest so he could get free. Rankin stated he experienced immediate pain in his right arm, shoulder, and chest. According to Rankin, he attempted to call his supervisor, Bonnie Henderson, to report his injury, but he could not get through to her on the phone, and her voicemail was full. However, Rankin later admitted he spoke to Henderson shortly after the alleged injury to report a broken fan belt, but he did not inform Henderson of the alleged injury. Rankin’s truck was repaired, and he continued making his deliveries for the day. At his last delivery, he began experiencing chest pain and required help unloading the freight. Fearing a possible cardiac event, Rankin was taken to the emergency room via ambulance. No cardiac event was found, so he was discharged from the emergency room. The ambulance and emergency-room records do not mention that Rankin suffered a work-related injury or that a 1,000-pound rolltainer struck him in the chest earlier that day. Rankin and Henderson spoke the following day after Henderson learned Rankin had a possible cardiac event. It was at that time Rankin informed her that he had a work-related injury, but he did not elaborate on how the injury occurred.

¶ 4. Rankin was then treated by his personal physician, Dr. Frank Wade. Dr. Wade’s records do not contain any reference to a work-related injury on October 1, 2009, or how Rankin injured himself. Per Dr. Wade’s instructions, Rankin did not return to work until December 1, 2009. On the following day, Rankin claimed he re-injured himself when he attempted to stop a 1,000-rolltainer from rolling off the end of the truck onto another employee. Rankin did not report this injury until he completed another delivery of freight.

¶5. For his December 2, 2009 injury, Rankin returned to Dr. Wade for treatment. He was then directed to Dr. Howard Katz for treatment. Dr. Katz placed Rankin at maximum medical improvement (MMI) on February 17, 2010. Dr. Katz’s records also do not contain documentation of the alleged work-related injuries. It is undisputed that Averitt paid all of Rankin’s medical bills and temporary total disability benefits (TTD) from October 2009 until April 2010.

¶ 6. After being placed at MMI, Rankin filed his petition to controvert on April 21, 2010. Shortly thereafter, Averitt filed its notice of controversion, claiming that Rankin did not suffer a compensable, work-related injury. A hearing before the AJ began on January 31, 2011, and was finished on May 2, 2011. Finding that Rankin suffered compensable, work-related injuries on October 1, 2009, and December 2, 2009, the AJ determined that Rankin was entitled to TTD benefits from October 1, 2009, through February 17, 2010, and permanent partial disability benefits from February 17, 2010, and continuing for 450 weeks.

¶ 7. Averitt filed its petition for review of the AJ’s order. It argued that the AJ erred in finding causation was supported by a reasonable medical probability, and this finding was error as a matter of law due to inconsistencies surrounding Rankin’s testimony and medical records. Rankin filed a cross-petition for review and clarification of the AJ’s order that found his fifty-percent loss of wage earning capacity was reduced by twenty-five percent due to pre-existing injuries.

¶ 8. The parties filed their respective briefs with the Commission, and on January 30, 2012, a hearing was held before the Commission. Immediately prior to the hearing, Rankin filed a motion for sanctions and to strike Averitt’s brief because it contained references to Rankin’s deposition testimony and a surveillance video that was not presented to the AJ. Further, Rankin claimed that Averitt did not properly file a motion for the late introduction of evidence. Averitt filed its response to Rankin’s motion on February 10, 2012, detailing where the testimony and evidence was discussed at the hearing before the AJ.

¶ 9. The Commission entered its order on March 16, 2012, denying and dismissing Rankin’s claim for benefits and reversing the AJ’s September 8, 2011 order. In its order, the Commission stated: “Based on the evidence as a whole and the applicable • law, the Commission finds that [Rankin’s] uncorroborated testimony regarding the alleged work-related injury is inconsistent with the evidence as a whole[,] and we find that [Rankin] has not met his burden of proof in establishing a compensable injury.” Rankin’s motion for sanctions and to strike Averitt’s brief was also denied because the Commission found that Averitt was able to provide cites to the AJ’s hearing transcript to support the evidentiary statements in its brief.

¶ 10. Rankin filed his notice of appeal on April 11, 2012, and raises the following issues for the Court to consider:

I. Whether the [Commission] erred when it denied Rankin’s motion to strike [Averitt’s] brief and for sanctions.
II. Whether the [Commission] erred in holding that [Rankin failed] to meet his burden of proof to establish that his injury [was] causally connected to the work injury suffered to his chest, back, right upper extremity and body as a whole.

STANDARD OF REVIEW

¶ 11. The Commission sits as the ultimate finder of fact, and this Court will only reverse the Commission’s findings of fact if they are unsupported by substantial evidence. N. Miss. Med. Ctr. v. Stevenson, 12 So.3d 1149, 1151 (¶ 7) (Miss.Ct.App.2009). If the issue is one of law, then this Court will apply a de novo review. Shelby v. Peavey Elec. Corp., 724 So.2d 504, 506 (¶ 8) (Miss.Ct.App.1998).

ANALYSIS

I. Motion to Strike

¶ 12. Rankin argues that pursuant to Mississippi Workers’ Compensation Commission Procedural Rule 9, the Commission erred in denying his motion to strike Averitt’s brief. According to Rankin, Av-eritt “introduced new evidence to the Commission without adhering to Rule 9 in the least.” The evidence in dispute involves Averitt’s reference in its brief to a surveillance video that was not shown at the hearing before the AJ. Additionally, Rankin submits that Averitt relied on Rankin’s deposition testimony in its brief to the Commission, and Rankin’s deposition was not introduced at the hearing before the AJ.

¶ 13. Rule 9 states, in pertinent part:

All testimony and documentary evidence shall be presented at the evidentiary hearing before the Administrative Judge which hearing shall be stenographically reported or recorded. Where additional evidence is offered on the review before the Commission, it shall be admitted in the discretion of the Commission. A motion for the introduction of additional evidence must be made in writing at least five (5) days prior to the date of the hearing of the review by the Commission. Such shall state with particularity the nature of such evidence, the necessity therefor, and the reason it was not introduced at the evidentiary hearing.

Additionally, Mississippi Code Annotated section 71-3-47 (Rev.2011) provides that “the details of practice and procedure in the settlement and adjudication of claims shall be determined by rules of the [C]om-mission.... ” This Court rarely reverses the Commission for the implementation and enforcement of its own procedural rules. Binswanger Mirror v. Wright, 947 So.2d 346, 351 (¶ 17) (Miss.Ct.App.2006) (citation omitted). However, “[d]ue process dictates that the Commission is to follow its own procedural due process principles in conducting its duties of administering workers’ compensation claims.” Robinson Prop. Group v. Newton, 975 So.2d 256, 260 (¶ 8) (Miss.Ct.App.2007) (citing Bermond v. Casino Magic, 874 So.2d 480, 485 (¶ 11) (Miss.Ct.App.2004)).

¶ 14. We first note that Rankin submits Averitt improperly referenced evidence in its brief to the Commission; however, Averitt’s brief to the Commission is not contained in this record for our review. As such, it is difficult for this Court to determine what statements within the brief are the subject of Rankin’s concern. What we do have in the record is Rankin’s motion to strike Averitt’s brief and Aver-itt’s response to the motion. Averitt’s response to the motion to strike asserted that “[t]he facts referenced by [Rankinj’s deposition and described within [Averitt’s bjrief are completely and wholly supported by the record in this cause.” Averitt then provided a detailed description of the facts this Court assumes was contained in the brief to the Commission, and it provided an almost line-by-line citation to the hearing transcript to support the factual references. The Commission found that “[i]t [was] clear from the record that [Averitt] relied on testimony and exhibits presented at the hearing!,]” and Averitt did not willfully violate Rule 9. This Court’s comparison of the citations to the hearing transcript does appear to corroborate Averitt’s contentions that its facts were supported by the hearing transcript. We cannot find that the Commission erred in denying Rankin’s motion to strike Averitt’s brief. Rankin has not presented any contradictory proof that Averitt’s factual contentions and citations to the hearing transcript were not contained in the record.

¶ 15. This issue is without merit.

II. Rankin’s Alleged Work-Related Injury

¶ 16. Rankin next contends that the Commission erred in reversing the AJ’s decision, which awarded him benefits, because it was unsupported by and contrary to the evidence presented. In reference to the first alleged injury, the Commission’s order stated that while Rankin testified he had to push the rolltainer off of himself, “[fjhere were no witnesses to this event, and [Rankin’s] medical records fail to mention this specific, detailed account of the alleged injury.” Additionally, Rankin spoke to Henderson multiple times that day, but he testified he initially could not get her on the phone or leave her a voice-mail about the injury. He also later testified that he could not recall whether he told Henderson of the alleged accident and injury. Henderson testified that she had no documentation of the specifics of Rankin’s injury in her files. As for the second injury, Rankin testified that he re-injured himself when the lift gate on his truck malfunctioned; however, Henderson testified that Rankin never informed her that his lift gate was working improperly. The Commission’s order summarized the medical testimony presented. It found that “[n]either the ambulance records nor the emergency room records mention that [Rankin] had suffered a work-related injury[,] or that he had been struck in the chest by a l,000[-]pound [rolltainer].” According to the order, Dr. Wade did not indicate in his notes that any specific incident had occurred to cause the pain, such as trauma to the chest. In fact, he testified that he did not discuss with Rankin any of the circumstances surrounding the injury, but that he would have documented such information if he had been aware of it. Additionally, Dr. Wade stated that a variety of things could have caused Rankin’s pain, and he specifically declined to give an opinion as to what the cause of Rankin’s musculoskeletal pain was. Rankin was also treated by Magee Physical Therapy. Its initial evaluation noted that Rankin was injured at work, but that Rankin did not recall a specific incident that caused his pain or injury. Lastly, Rankin saw Dr. Katz after his second injury. It is in Dr. Katz’s report that the details of Rankin’s first injury are documented; however, Dr. Katz also declined to provide an opinion on causation.

¶ 17. Based on this evidence, the Commission rejected Rankin’s testimony as it was uncorroborated and because Rankin had made inconsistent statements about the claim. Another primary reason for reversing the AJ’s award of benefits was that Rankin failed to establish causation by a medical expert since neither Dr. Wade nor Dr. Katz would give an opinion as to causation. The burden of proof falls on the employee to prove a causal connection between employment and a disability or injury. Hedge v. Leggett & Platt Inc., 641 So.2d 9, 12-13 (Miss.1994). Unless the case is simple and routine, medical causation must prove the disability and the causal connection to employment by use of expert testimony. Shipp v. Thomas & Betts, 18 So.3d 332, 337 (¶ 21) (Miss.Ct.App.2009). “The causal connection between the claimant’s injury and disability must be proven with competent medical proof and based upon a reasonable degree of medical probability.” Anthony v. Town of Marion, 90 So.3d 682, 690 (¶ 28) (Miss.Ct.App.2012) (quoting Airtran v. Byrd, 953 So.2d 296, 299 (¶ 3) (Miss.Ct.App.2007).

¶ 18. Our standard of review requires this Court to determine if the Commission’s decision to deny Rankin benefits was supported by substantial evidence. “[S]ubstantial evidence means something more than a ‘mere scintilla’ of evidence,” but less than a preponderance of the evidence. Short v. Wilson Meat House, LLC, 36 So.3d 1247, 1251 (¶ 19) (Miss.2010) (citation omitted). While recognizing that “doubtful cases should be resolved in favor of compensation”, we do not find that this case falls into that category. Holman v. Standard Oil Co. of Ky., 242 Miss. 657, 667, 136 So.2d 591, 594 (Miss.1962) (citing Ingalls Shipbuilding Corp. v. Howell, 221 Miss. 824, 832, 74 So.2d 863, 865 (Miss.1954)). The Commission’s decision was supported by substantial evidence in the record. Rankin provided no medical opinion on causation beyond Dr. Wade’s and Dr. Katz’s assumptions that his injuries were work related due to the fact that Rankin’s treatments were being paid for by workers’ compensation insurance. When asked, both doctors declined to give an opinion as to causation, much less an opinion to a reasonable degree of medical probability that the injuries were work related. Therefore, this issue is without merit.

¶ 19. Lastly, Rankin submits that this Court should reverse and remand the case to the Commission for a determination of his temporary and permanent disability. Since we find that the Commission did not err in denying Rankin’s claim and benefits, this issue is moot.

¶ 20. 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, CARLTON, MAXWELL, FAIR AND JAMES, JJ„ CONCUR.

      . The present appeal involves the consolidation of two cases that were tried together before the Commission. Rankin had filed two separate petitions to controvert. One involved Rankin’s alleged October 1, 2009 injury; the other involved Rankin’s alleged December 2, 2009 injury.


author: MAXWELL, J.,

text:
    Ollie Lee EVANS a/k/a Ollie Lee Evans, Jr. a/k/a Ollie Evans, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01353-COA.
    Court of Appeals of Mississippi.
    June 18, 2013.

      Ollie Lee Evans, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Ollie Lee Evans appeals his third motion for post-conviction relief (PCR). As with his second PCR motion, the trial court dismissed the present motion as successive. While the pro se Evans lists various violations of fundamental constitutional rights, in an effort to exempt his latest PCR motion from the successive-writ bar, he offers no facts, circumstances, or record evidence to substantiate any of his claims. Because mere allegations of fundamental-constitutional-rights violations are not sufficient to overcome the successive-writ bar, we affirm the dismissal of Evans’s third PCR motion as procedurally barred.

¶2. Under Mississippi’s Uniform Post-Conviction Collateral Relief Act (UP-CCRA), any order denying or dismissing a PCR motion is a bar to a second or successive PCR motion. Miss.Code Ann. § 99-39-23(6) (Supp.2012). Evans’s first PCR motion, challenging his 2007 conviction for failure to register as a sex offender, was dismissed in August 2008. Despite the successive-writ bar, Evans filed a second PCR motion, which was dismissed as successive in August 2010. Evans appealed this dismissal. And this court affirmed, finding no statutory exception to the successive-writ bar applied. Evans v. State, 75 So.3d 1119, 1120 (¶ 5) (Miss.Ct.App.2011). Undeterred, Evans filed a third PCR motion, which was also dismissed as successive. In this third motion, Evans claims the judicial “fundamental constitutional rights” exception to the successive-writ bar should apply because the motion addresses various alleged violations of his constitutional rights.

¶ 3. Evans is correct that “errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA.” Rowland v. State, 42 So.3d 503, 506 (¶ 9) (Miss.2010). But what Evans has failed to understand is that “the mere assertion of a constitutional right violation” does not trigger the exception. Wicker v. State, 16 So.3d 706, 708 (¶ 5) (Miss.Ct.App.2009). To find an exception to the successive-writ bar, “[tjhere must at least appear to be some basis for the truth of the claim” of a fundamental-constitutional-rights violation. Stovall v. State, 873 So.2d 1056, 1058 (¶ 7) (Miss.Ct.App.2004).

¶ 4. Evans’s assertions in his third PCR motion are just that — mere assertions. Evans provides no support whatsoever for his various claims that his constitutional rights were violated. Cf. Evans, 75 So.3d at 1120 (¶ 6) (noting that Evans’s second PCR motion would have alternatively failed on the merits because the issues Evans raised in that motion were “merely assertions and [were] not substantiated with anything more to support them”). Therefore, there is no reason why the successive-writ bar should not apply. And we affirm the circuit court’s dismissal of Evans’s third PCR motion, based on this procedural bar.

¶ 5. 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.

      . See Miss.Code Ann. § 45-33-25 (Rev.2011).

      . In addition to being successive, Evans’s third PCR motion is also time barred. Under Mississippi Code Annotated section 99-39-5(2) (Supp.2012), a PCR motion challenging a guilty plea must be filed within three years of the entry of the judgment of conviction. Evans was convicted in September 2007, but did not file his third PCR motion until July 2012, well outside the three-year limit. For the same reason Evans has failed to show a fundamental-constitutional-rights exception applies to the successive-writ bar, he has also failed to show an exception applies to the time bar.

      . See note 2, supra.


text:
    Cynthia Jean Guess McDONALD, Appellant/Cross-Appellee v. Edgar L. McDONALD Jr., Appellee/Cross-Appellant.
    No. 2011-CA-01324-COA.
    Court of Appeals of Mississippi.
    June 18, 2013.

      George M. Mitchell, H. Richard Davis Jr., Eupora, attorneys for appellant.
    Mark A. Cliett, West Point, attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In July 2011, the Clay County Chancery Court granted Cynthia McDonald (Cindy) and Edgar McDonald Jr. (Ed) a divorce based on irreconcilable differences. The chancery court awarded Cindy $234,834 of the marital estate and Ed $277,988.60 of the marital estate. Ed was also ordered to pay alimony of $1,800 per month and $5,000 of Cindy’s attorney’s fees. Cindy now appeals, arguing the chancery court erred by (1) finding the twenty-three acres of real property were not marital property; (2) awarding her less than an equal portion of the marital assets; (3) failing to adequately provide for her health-care costs; and (4) refusing to award her full attorney’s fees. Ed cross-appeals, arguing the chancery court erred by (1) excluding for equitable distribution the property that Cindy transferred to her sister; (2) awarding Cindy more than an equal portion of the marital estate; and (3) awarding Cindy attorney’s fees. Finding no error, we affirm the chancery court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶2. Cindy and Ed were married on June 1, 1979. They separated in November 2006. In August 2008, Ed filed for divorce in the Clay County Chancery Court based on habitual cruel and inhuman treatment. After a trial on the merits, the chancery court found that Ed had failed to prove cruel and inhuman treatment and was, therefore, not entitled to a fault-based divorce. However, the chancery court awarded Cindy separate maintenance. Less than two weeks after separate maintenance was ordered, Ed attempted to terminate his separate-maintenance obligation. In his motion, Ed argued he had “made a good faith effort to return to the marriage and amend the marital relationship.” Cindy disputed this, and Ed’s request was denied. Ed then filed a motion to alter or amend the order denying his motion to terminate separate maintenance. Cindy responded with a motion for contempt based on Ed’s failure to pay separate maintenance. Ed’s motion was denied; however, Cindy’s motion for contempt was granted, and she was awarded $6,000. Ed appealed the decision to this Court, and we affirmed the decision of the chancery court. McDonald v. McDonald, 69 So.3d 61, 68 (¶ 18) (Miss.Ct.App.2011).

¶3. On March 19, 2010, Cindy filed a complaint for divorce based on adultery, habitual cruel and inhuman treatment, and desertion, or in the alternative, irreconcilable differences. However, the parties eventually agreed to a divorce based on irreconcilable differences. The chancellor was to decide the issues of property division and alimony.

¶ 4. During the course of the marriage, Ed was the main source of income. Cindy worked for thirteen years during the marriage. However, in 1999, Cindy was unable to continue working due to illness. Cindy suffers from multiple sclerosis and fibromyalgia. Currently, her only source of income, independent of Ed’s court-ordered support, is the $993 per month she receives in Social Security disability payments. At the time of the divorce, Ed earned approximately $115,000 per year, including his bonus.

¶ 5. Cindy testified that since the separation, she had depended on her sister, Patsy, for both financial and physical care. She and Patsy owned a rental home they inherited from their mother. They earned $840 per month from the rental home, which they split. However, in March 2010, Cindy deeded the property to Patsy. Because Cindy did not have the resources to support herself throughout the divorce process or afford her attorney’s fees, Patsy covered some of these costs. Therefore, Cindy deeded the house to Patsy as repayment.

¶ 6. At the time of the divorce, the parties had substantial assets. The parties’ marital home is currently listed with a realtor for $395,000. The house is situated on twenty-five acres of land. Ed agreed that two of the acres are attached to the house as marital property; however, he asserted that the other twenty-three acres are his separate property that he inherited. When assessing the parties’ property, the chancery court found the marital home had a value of $329,000, with $100,000 remaining on the balance of the home, thus leaving $229,000 in equity. The chancery court also found the disputed twenty-three acres were not marital property.

¶ 7. The parties also had various retirement and investment accounts. While working, Cindy accrued retirement benefits in the amount of $41,585. Ed accrued a 401 (k) in the amount of $20,968; a retirement account of $33,657.94; an Executive Stock Unit Plan with a value of $95,170.93; and a Stock Discount Plan in the amount of $29,363.73. Ed also has a Bancorp-South certificate of deposit valued at $45,000. Additionally, the parties have a Dodge Ram pickup with a value of $8,500, with a loan balance of $2,272.34, and various personal property.

¶ 8. A trial was held on the matter, and the chancellor entered an opinion on May 31, 2011. After the chancellor conducted a Ferguson analysis, Cindy was awarded her retirement account in the amount of $41,585; the Dodge Ram pickup valued at $8,500; personal property totaling $2,350; and sixty percent of the equity in the house when it is sold. Ed was awarded his 401(k) in the amount of $20,968; his retirement account of $33,657.94; his Executive Stock Unit Plan with a value of $95,170.93; his Stock Discount Plan in the amount of $29,363.73; personal property valued at $9,500; forty percent of the equity in the house when it is sold; and the twenty-three acres considered separate property valued at $34,500.

¶ 9. Based on the chancellor’s Armstrong analysis, Cindy was awarded $1,800 per month in alimony. Ed was also required to provide Cindy with medical coverage for eighteen months. Finally, Ed was ordered to pay $5,000 in attorney’s fees to Cindy.

¶ 10. Cindy now appeals, arguing the chancery court erred by (1) finding the twenty-three acres of real property were not marital property; (2) awarding her less than an equal portion of the marital assets; (3) failing to adequately provide for her health-care costs; and (4) refusing to award her full attorney’s fees. Ed cross-appeals, arguing the chancery court erred by (1) excluding from equitable distribution the property that Cindy transferred to her sister; (2) awarding Cindy more than an equal portion of the marital estate; and (3) awarding Cindy attorney’s fees.

DISCUSSION

¶ 11. When reviewing a decision by the chancery court, we employ a limited standard of review. Williams v. Williams, 56 So.3d 1277, 1280 (¶ 12) (Miss.Ct.App.2011). “We will not disturb a chancellor’s findings unless the court was manifestly •wrong, abused its discretion^] or applied an erroneous legal standard.” Id. (citations omitted). We review question of law de novo. Broome v. Broome, 75 So.3d 1132, 1139 (¶ 19) (Miss.Ct.App.2011).

I. Nommarital Property

¶ 12. When dividing marital assets, the chancery court must first classify the property as marital property or non-marital property. Stewart v. Stewart, 864 So.2d 934, 937 (¶ 12) (Miss.2003). Marital property is defined as “any and all property acquired or accumulated during the marriage. Assets so acquired or accumulated during the course of the marriage are marital assets and are subject to an equitable distribution by the chancellor.” Id. (quoting Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994)). Inter vivos gifts and inheritances are considered non-marital property unless they have been commingled. Everett v. Everett, 919 So.2d 242, 247 (¶ 19) (Miss.Ct.App.2005) (citing Heigle v. Heigle, 654 So.2d 895, 897 (Miss.1995)). However, “[a]ssets which are classified as nonmarital, such as inheritances, may be converted into marital assets if they are commingled with marital property or utilized for domestic purposes, absent an agreement to the contrary.” Stewart, 864 So.2d at 937 (¶ 12) (quoting Boutwell v. Boutwell, 829 So.2d 1216, 1221 (¶ 20) (Miss.2002)).

A. Twenty-Three Acres of Land Adjacent to the Marital Home

¶ 13. Cindy argues the chancery court erred by finding the twenty-three acres of land were nonmarital property and failing to distribute the land along with the other marital assets. Ed contends that the twenty-three acres were purchased with funds from his father’s estate. However, Cindy asserts there is no evidence, other than Ed’s own testimony, that the property was nonmarital. According to Cindy, the funds Ed used were from the parties’ joint bank account, and the property was titled in both names. She further argues that even if the funds were from Ed’s father’s estate, he commingled the funds when he deposited them into the parties’ joint bank account. Finally, Ed and Cindy were listed as joint tenants with the right of survivorship on the title for the twenty-three acres of land. Cindy argues that this supports her claim that the property was marital property.

¶ 14. We find that a different conclusion could have been reached regarding whether or not the funds were commingled, therefore making the twenty-three acres marital property. However, “we are restrained from substituting our own judgment for that of the chancellor, even if we disagree with his or her findings of fact and would arrive at a different conclusion.” Robinson v. Burton, 49 So.3d 660, 664 (¶ 9) (Miss.Ct.App.2010) (citation omitted). Here, there was evidence that the funds were inherited by Ed and were only deposited in the parties’ joint account to pay for the twenty-three acres of land. Furthermore, the Mississippi Supreme Court has rejected the “title theory.” Marter v. Marter, 95 So.3d 733, 738 (¶ 15) (Miss.Ct.App.2012). Therefore, in Mississippi, the determination of whether property is marital in nature “proceeds absent any presumption based on title.” Id. (quoting Pearson v. Pearson, 761 So.2d 157, 163 (¶ 16) (Miss.2000)). The fact that the twenty-three acres was titled in both names does not automatically make it marital property. Accordingly, there was sufficient evidence on which the chancery court based its conclusion. This issue is without merit.

B. Cindy’s Inherited Property

¶ 15. Although Ed agrees that the property was inherited by Cindy from her mother, he asserts the property was commingled because the rent from the property was deposited into the parties’ joint bank account. Furthermore, Ed handled all of the business-related matters regarding the property. Accordingly, Ed contends that Cindy’s deeding of the property to her sister was a wrongful dissipation of the marital estate, and the property should have been subject to equitable distribution.

¶ 16. As noted above, we will not substitute our own judgment for that of the chancellor. While we again find that a different conclusion could have been reached, the chancellor did not abuse his discretion in finding the inherited property was nonmarital despite the rent received' being placed in the parties’ joint bank account. Both parties agreed that the property was inherited by Cindy and her sister; therefore, it was clearly not marital property. The chancery court found that the deposit of rent payments into the parties’ joint bank account was not sufficient to render the property commingled. We find the chancery court did not abuse its discretion in reaching this conclusion. This issue is without merit.

II. Distribution of the Marital Estate

¶ 17. Cindy argues that the chancery court erred in its application of the Ferguson factors; thus, the division of the marital property was an abuse of discretion. The entire marital estate was valued at $515,095.60. Cindy was awarded $234,834 of the marital estate. Ed was awarded $277,988.60 of the marital estate. Cindy argues that she should have also been awarded half of Ed’s employment benefits, which totaled $179,160.60.

¶ 18. First, Cindy argues the chancery court did not properly consider Ed’s fault in the breakup of the marriage. One factor the chancery court must consider when dividing marital assets is the “[e]ontribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties[,] and duration of the marriage.” Ferguson, 639 So.2d at 928. According to Cindy, Ed had sexual relations with other women and then refused to discuss any infidelity with Cindy. Although Ed never admitted to having an affair, he never denied the accusations. Cindy asserts Ed’s alleged affair should have been taken into consideration when distributing the marital estate.

¶ 19. Ed counters Cindy’s arguments by claiming the chancery court failed to consider her fault in the dissolution of the marriage. He alleges that Cindy refused to have sexual relations with him for over a year. In addition, Cindy refused to accompany Ed when he was required to entertain customers for his job.

¶ 20. Next, Cindy argues the chancery court did not properly consider Ed’s dissipation of the marital assets. Under Ferguson, the chancery court must consider “[t]he degree to which each spouse has expended, withdrawn!,] or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree[,] or otherwise.” Ferguson, 639 So.2d at 928. In 2009, Ed did, in fact, take $97,000 from the marital-asset accounts to pay for attorney’s fees.

¶ 21. Alternatively, Ed argues the chancery court did not consider Cindy’s dissipation of the marital assets. Ed claims that Cindy dissipated marital assets by transferring her ownership of certain real estate inherited from her mother to her sister. Ed claims the property had a value of $750,000.

¶ 22. The chancery court did not abuse its discretion in the distribution of marital assets. While each party’s contribution to the stability and harmony of the marriage is a factor to consider, it is not the only factor the chancery court must evaluate when distributing the marital assets. Furthermore, each party’s argument establishes that both parties were at fault for the breakup of the marriage. As the chancery court noted: “[B]oth parties are responsible for the disharmony that occurred in the family.” Therefore, the chancery court properly considered each party’s fault for the dissolution of the marriage when conducting the Ferguson analysis.

¶ 23. With regard to each party’s dissipation of assets, the chancery court properly considered both parties’ actions. The chancery court acknowledged that Ed took $97,000 out of the parties’ joint bank account and considered this when awarding his portion of the assets. The chancery court stated: “[Ed’s] award takes into account the fact [he] withdrew approximately $97,000.00 from marital[-]asset accounts in 2009.” Although the chancery court did not find Cindy’s inherited property to be marital in nature, the chancery court did consider her transfer of the property to her sister when assessing property distribution. Accordingly, the chancery court did not err in its Ferguson analysis. This issue is without merit.

III. Alimony/Health-Care Costs

¶ 24. Cindy argues the chancery court abused its discretion by failing to provide adequate support for her substantial health-care needs. First, Cindy argues the chancery court did not properly consider her health-care costs. She contends the chancery court erred by only requiring Ed to provide health insurance for eighteen months and by only awarding $1,800 per month in alimony. She cites her substantial health-care costs and her inability to earn income as support for this argument.

¶ 25. Next, Cindy argues that the chancery court failed to consider the tax effects of the alimony award. Both her Social Security disability benefits and her monthly alimony payments are subject to taxes. However, Ed is allowed to deduct his alimony payments from his taxable income. Cindy argues that the tax consequences make the income disparity between herself and Ed even greater. Therefore, she asserts this Court should remand the matter to the chancery court for further consideration.

¶ 26. In contrast, Ed asserts the chancery court awarded Cindy too much in alimony per month. He claims that he is barely able to afford his rent each month and has been forced to file for bankruptcy. Therefore, he asks that we reverse and remand the case to the chancery court for further consideration.

¶ 27. The chancery court properly considered the relevant Armstrong factors. Although Cindy argues the chancery court did not properly consider her healthcare needs, the court acknowledged that medical coverage is necessary and that she will be forced to obtain her own health insurance after the divorce. Therefore, the chancery court ordered Ed to provide eighteen months of health insurance for Cindy. The $1,800 per month in alimony also takes into account her health-care needs. With regard to Ed’s argument, the chancery court did not err by awarding Cindy $1,800 per month in alimony. The chancery court found that Ed’s job was fairly secure, whereas Cindy has no viable prospects for increased earnings. Furthermore, Ed can continue to contribute to a retirement account, but Cindy is unable to do so. Accordingly, we find the chancery court did not abuse its discretion in its award of alimony.

IV. Attorney’s Fees

¶ 28. “[T]he matter of determining attorney[’]s fees in divorce cases is largely entrusted to the sound discretion of the [chancery] court.” McKee v. McKee, 418 So.2d 764, 767 (Miss.1982) (citation omitted). Attorney’s fees may only be awarded when the party has shown an inability to pay. Watts v. Watts, 99 So.3d 751, 763 (¶ 37) (Miss.Ct.App.2012) (citations omitted). Cindy argues the chancery court erred by only awarding her $5,000 in attorney’s fees despite her substantial costs. Evidence was presented that Cindy’s sister had to loan Cindy money to cover the attorney’s fees. Therefore, Cindy showed an inability to pay.

¶29. We find that the chancery court did not abuse its discretion in its award of attorney’s fees. Although Cindy asserts that she incurred substantial attorney’s fees during the trial in this case, the bill for fees and expenses submitted to the chancery court prior to trial was for $10, 802.49. Thus, the chancery court awarded Cindy roughly half of the fees incurred as shown by the bill submitted to the court. We find this was a reasonable amount within the discretion of the chancery court. This issue is without merit.

¶ 30. THE JUDGMENT OF THE CLAY COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT/CROSS-APPELLEE AND THE APPELLEE/CROSS-APPELLANT.

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

      . Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994).

      . Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993).


author: IRVING, P.J.,

text:
    Walter D. BASS a/k/a Walter Dalton Bass a/k/a Walter Bass, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00376-COA.
    Court of Appeals of Mississippi.
    June 18, 2013.

      Walter D. Bass, appellant, pro se.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
   IRVING, P.J.,

for the Court:

¶ 1. Walter D. Bass, a convicted sex offender, filed a petition in the Harrison County Circuit Court for a conditional medical release from prison. The circuit court denied his petition. Bass appeals, arguing that Mississippi Code Annotated section 47-7-4 (Supp.2012) is unconstitutional in that it prohibits sex offenders from receiving conditional medical release and denies them due-process protections afforded to other prisoners. Bass further argues that he has been subjected to cruel and unusual punishment due to deliberate indifference to his serious medical needs.

¶ 2. Finding that Bass’s petition is procedurally barred because he did not make the Attorney General a party to his petition or raise the issue of constitutionality of section 47-7-4 in his petition, we affirm the judgment of the circuit court.

FACTS

¶ 8. On March 26, 2010, Bass pleaded guilty to touching a child for lustful purposes. He was sentenced to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with five years to serve, ten years suspended, and ten years of post-release supervision. Approximately ten months later, Bass petitioned the circuit court for a conditional medical release under section 47-7-4, stating that he was suffering from a severe heart condition. A copy of Bass’s petition was forwarded to Dr. Gloria Perry, MDOC’s chief medical officer, and to MDOC Commissioner Christopher Epps for review.

¶4. MDOC, through Dr. Perry, denied the request, stating that Bass was not eligible for conditional medical release due to his status as a sex offender. MDOC further stated that Bass would continue to receive the appropriate medical care while he is incarcerated. Bass then filed a petition for a writ of mandamus in the circuit court in which he sought an order striking the prohibiting language from section 47-7-4 or mandating that he be granted a conditional medical release. The circuit court declined to issue the writ, finding that Bass was statutorily prohibited from receiving a conditional medical release.

¶ 5. Additional facts, as necessary, will be related in our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. Section 47-7-4 states, in pertinent part, that “[t]he commissioner and the medical director of the department may place an offender who has served not less than one (1) year of his or her sentence, except an offender convicted of a sex crime, on conditional medical release.” (Emphasis added). As stated, in his brief, Bass challenges the constitutionality of section 47-7-4. “[W]hen a statute’s constitutionality is challenged, the Attorney General must be notified and provided an opportunity to respond.” Martin v. Lowery, 912 So.2d 461, 465 (¶9) (Miss.2005) (citing In re D.O., 798 So.2d 417, 423 (¶ 22) (Miss.2001)). See also, Miss. R. Civ. P. 24(d). The Mississippi Supreme Court has “procedurally barred challenges to the constitutionality of a statute where a party failed to notify the Attorney General” and failed to raise the issue of constitutionality before the [circuit] court. Id. (citing Cockrell v. Pearl River Valley Water Supply Dist., 865 So.2d 357, 360 (¶ 10) (Miss.2004)).

¶ 7. Not only did Bass fail to raise the issue of constitutionality in his petition for conditional medical release, he also failed to give notice to the Attorney General. Accordingly, Bass’s challenge to section 47-7-4 is procedurally barred. As to Bass’s contention that he has been subjected to cruel and unusual punishment due to deliberate indifference to his serious medical needs, suffice it to say that he has offered no facts indicating that he is suffering from a medical condition that is not being adequately addressed by MDOC. His allegations that he is being subjected to cruel and unusual punishment is premised on the notion that denying him a conditional medical release is tantamount to cruel and unusual punishment. As stated, in denying Bass a conditional medical release, MDOC made it clear that Bass will continue to receive appropriate medical treatment. Bass has offered nothing to indicate that MDOC is failing to provide such treatment. Therefore, there is no merit to this issue.

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

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

      . The record does not inform us as to who forwarded the copy of Bass’s petition to MDOC.


author: LEE, C.J.,

text:
    Emmett MICKENS, Appellant v. WAL-MART STORES EAST, LP, Appellee.
    No. 2012-CA-00825-COA.
    Court of Appeals of Mississippi.
    June 18, 2013.

      Roy Gregg Rogers, attorney for appellant.
    Shanda M. Yates, Jackson, Thomas M. Louis, Ridgeland, attorneys for appellee.
    Before LEE, C.J., FAIR and JAMES, JJ.
   LEE, C.J.,

for the Court:

¶ 1. In this premises-liability case, we must determine whether summary judgment was appropriate. Finding no error, we affirm.

PROCEDURAL HISTORY

¶ 2. On March 8, 2011, Emmett Mickens filed suit in the Lowndes County Circuit Court against Wal-Mart Stores LP alleging negligence. Mickens sustained injuries after a bottle of bleach leaked onto his lap. Wal-Mart ultimately filed a motion for summary judgment. After a hearing, the trial court granted Wal-Mart’s motion for summary judgment.

FACTS

¶ 3. On September 4, 2010, Mickens entered the Wal-Mart in Columbus, Mississippi, and placed a shopping basket on his lap to hold his purchases. Mickens was paralyzed from the waist down and had been confined to a wheelchair since 1967. Upon reaching the check-out counter, Mickens realized he forgot to purchase a bottle of bleach. Mickens retrieved a bottle of bleach and placed it in his lap as he returned to the check-out counter. When Mickens handed the bottle of bleach to the cashier, the cashier noticed the bottle was leaking and retrieved another bottle for Mickens. Mickens then noticed his pants were wet with bleach. Mickens sustained chemical burns on his thigh and knee.

STANDARD OF REVIEW

¶ 4. In considering a trial court’s grant of a motion for summary judgment, this Court conducts a de novo review and “examines all the evidentiary matters before it-admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” City of Jackson v. Sutton, 797 So.2d 977, 979 (¶ 7) (Miss.2001) (citations omitted). The moving party has the burden of demonstrating that no genuine issue of material fact exists, and the nonmoving party must be given the benefit of the doubt concerning the existence of a material fact. Id. “If no genuine issue of material fact exists and the moving party is entitled to [a] judgment as a matter of law, summary judgment should be entered in that party’s favor.” Monsanto Co. v. Hall, 912 So.2d 134, 136 (¶ 5) (Miss.2005).

DISCUSSION

¶ 5. In his only issue on appeal, Mickens contends the trial court erred in granting summary judgment in favor of Wal-Mart.

¶ 6. Mississippi uses a three-step process in analyzing premises liability: “First, we must determine whether the injured party was an invitee, licensee, or a trespasser at the time of the injury. Next, we must determine what duty was owed to the injured party by the business owner/operator. Finally, we must determine whether that duty was breached.” Rod v. Home Depot USA, Inc., 931 So.2d 692, 694 (¶ 9) (Miss.Ct.App.2006) (internal citations omitted).

¶ 7. It is undisputed that Mickens was a business invitee because he entered Wal-Mart “in answer to the express or implied invitation of the owner or occupant for their mutual advantage.” Id. at (¶ 10) (citation omitted). “A business owner/operator owes to invitees the ‘duty to keep the premises reasonably safe, and when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view.’ ” Id. (citation omitted).

¶ 8. To succeed in his premises-liability action, Mickens must prove one of the following: “(1) a negligent act by [Wal-Mart] caused [his] injury; or, (2) that [Wal-Mart] had actual knowledge of a dangerous condition, but failed to warn [him] of the danger; or, (3) the dangerous condition remained long enough to impute constructive knowledge to [Wal-Mart].” Byrne v. Wal-Mart Stores, Inc., 877 So.2d 462, 465 (¶ 5) (Miss.Ct.App.2003) (citation omitted). “However, the store owner is not an insurer of business invitees’ injuries.” Id. at (¶ 6).

¶ 9. Under the first theory of recovery, we find Mickens has failed to prove a negligent act by Wal-Mart caused his injury. Mickens had no knowledge of what caused the bottle of bleach to leak or how long the bottle had been sitting on the display. Mickens simply stated it was “possible [Wal-Mart] could cause it to leak.” Mickens also admittedly had no physical evidence to support his negligence theory. There is nothing in the record to indicate that a negligent act of Wal-Mart or its employees caused Mickens’s injuries.

¶ 10. Under the second theory of recovery, we find Mickens has failed to prove that Wal-Mart had actual knowledge of the dangerous condition but failed to warn him of the danger. Miekens was unable to show that any employees had actual knowledge that the bottle of bleach was leaking. There was no testimony the employees knew the bottle was leaking until the bleach was already on Mickens’s lap. Miekens admittedly never smelled bleach or noticed the bottle was wet until the cashier began to scan the bottle at the check-out counter.

¶ 11. Under the third theory of recovery, we find Miekens has failed to prove that the dangerous condition remained long enough to impute constructive knowledge to Wal-Mart. Furthermore, Miekens failed to “present specific proof as to the relevant actual length of time.” Almond v. Flying J Gas Co., 957 So.2d 437, 439 (¶ 8) (Miss.Ct.App.2007) (citation omitted). As previously stated, Miekens did not notice the bottle of bleach was wet when he picked it up. Miekens also did not notice if the display where the bottle was sitting was wet.

¶ 12. We find Miekens has failed to show a genuine issue of material fact as to Wal-Mart’s alleged negligence. Therefore, we find the trial court’s decision to grant summary judgment in favor of Wal-Mart was proper.

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

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Wal-Mart produced DVD footage of the display area, which shows Miekens approach the display, handle several bottles of bleach, and move away from the display without placing any bleach in his shopping basket. Approximately fifteen minutes later, Miekens returned to the display, handled several bottles of bleach, picked up one bottle, and placed this bottle in his shopping basket. However, it is unclear from the record if the video was properly admitted or if the trial court viewed this video in reaching its decision.


author: FAIR, J.,

text:
    Donald NEAL, Appellant v. MDOC RECORDS DEPARTMENT, Appellee.
    No. 2012-CP-00772-COA.
    Court of Appeals of Mississippi.
    June 18, 2013.

      Donald Neal, appellant, pro se.
    Office of the Attorney General by R. Stewart Smith Jr., attorney for appellee.
    Before LEE, C.J., FAIR and JAMES, JJ.
   FAIR, J.,

for the court:

¶ 1. Donald Neal is currently serving two concurrent, twenty-year sentences, one of which is for armed robbery. Denied credit for earned release by the Mississippi Department of Corrections (MDOC) because of his armed robbery-conviction, he appealed to the Sunflower County Circuit Court. From an adverse ruling by the circuit court, he appeals to this Court.

¶ 2. Neal’s only claim is that he is eligible for earned-release supervision under Mississippi Code Annotated sections 47-5-138 and -139 (Rev.2011 & Supp.2012), a question of law on undisputed facts.

¶ 3. Neal was indicted for an armed robbery and an aggravated assault he committed on November 12, 1995, and he was adjudicated guilty and sentenced on June 6, 1996. The effective dates of statutory amendments that completely remove parole eligibility for those convicted of armed robbery predate these events.

¶ 4. The issue Neal raises was specifically decided by this Court in Wells v. State, 936 So.2d 479, 480 (¶ 5) (Miss.Ct.App.2006), a unanimous decision directly addressing the question: “Whether a prisoner convicted of armed robbery may accrue earned-time credits.” In an opinion by Judge Barnes, we answered:

Section 47 — 7—3(l)(d)(ii) of the Mississippi Code Annotated (Supp.2005) states that persons convicted of the crime of armed robbery are not eligible for parole. It reads, in relevant part:
No person shall be eligible for parole who shall, on or after October 1,1994, be convicted of robbery, attempted robbery or carjacking through the display of a firearm or drive-by shooting. The provisions of this subparagraph (d)(ii) shall also apply to any person who shall commit robbery, attempted robbery, carjacking or a drive-by shooting on or after October 1, 1994, through the display of a deadly weapon.
Furthermore, sections 47 — 5—138.1(2)(d) (Rev.2004) and 47-5-139(l)(e) (Rev.2004) state that trusty time and earned time, respectively, are not available to those persons convicted of armed robbery who have not “served the mandatory time for parole eligibility.” The language in these statutes reflects that once, prior to the enactment of section 47 — 7—3(l)(d)(ii), persons convicted of armed robbery could be eligible for parole after serving ten years of their sentence. However, it is clear that such felons are now completely ineligible for parole. As, pursuant to section 4-7-7-3(l)(d)(ii), a person convicted of armed robbery can never be eligible for parole, it follows that he may not accrue trusty or earned time pursuant to sections ^7-5-138.1(2) (d) and ⅛7-5-139(l)(e), respectively. It would be “an absurdity” were this Court to hold that a prisoner who is permanently ineligible for parole may be allowed to accrue earned-time credits and therefore receive the benefit of a shortened sentence. See Cooper v. State, 439 So.2d 1277, 1278 (Miss.1983).

Wells, 936 So.2d at 480 (¶ 5) (emphasis added).

¶ 5. Wells is the controlling precedent in this case. Therefore, we affirm.

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

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

      . The cases Neal relies on, Williams v. Puckett, 624 So.2d 496 (Miss.1993), and Wilson v. Puckett, 721 So.2d 1110 (Miss.1998), deal with offenses and sentences occurring prior to the statutory amendments mentioned above. Neal also makes arguments of public policy and statutory intent appropriate for the legislative process, which we do not address in this opinion.


author: CARLTON, J.,

text:
    C.D. PICKLE, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01900-COA.
    Court of Appeals of Mississippi.
    June 18, 2013.

      C.D. Pickle Jr., appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   CARLTON, J.,

for the Court:

¶ 1. This case comes before this Court on appeal from an order dismissing C.D. Pickle Jr.’s motion for post-conviction relief (PCR) as time-barred and successive-writ barred. Pickle seeks post-conviction relief from a 1977 conviction where a Le-flore County jury convicted Pickle of capital murder for raping and then murdering Mary Elizabeth Harthcock. Pickle was sentenced to life in the custody of the Mississippi Department of Corrections (MDOC). Pickle later filed a PCR motion, which the circuit court dismissed. Pickle now appeals and contends that the circuit court erroneously dismissed his PCR motion as time-barred pursuant to Mississippi Code Annotated section 99-89-5(2) (Supp. 2012) and successive-writ barred pursuant to Mississippi Code Annotated section 99-39-28(6) (Supp.2012).

¶ 2. In addition to addressing the issues of the time-bar and successive-writ bar, this case also addresses the exception to the statutory bar for claims seeking testing of DNA evidence. See Miss.Code Ann. § 99-39-5(2)(a)(ii). The record reflects that the circuit court summarily dismissed Pickle’s PCR motion without determining if he met the statutory requirements for this exception to the three-year statute of limitations, as provided by section 99-39-5(2). We therefore reverse the judgment of the circuit court and remand this case for an evidentiary hearing.

FACTS

¶3. In 1975, a Holmes County grand jury indicted Pickle for the capital murder of Harthcock. The indictment charged that on November 26, 1974, Pickle raped Harthcock and then killed her. A jury subsequently convicted Pickle and sentenced him to death. The Mississippi Supreme Court reversed Pickle’s conviction in 1977 and remanded the case for a new trial. Pickle v. State, 345 So.2d 623, 624 (Miss.1977). His second trial was held in the Leflore County Circuit Court in 1978, where he was convicted again and sentenced to life in the custody of the MDOC. The record reflects that Pickle failed to perfect a direct appeal from that conviction.

¶ 4. At some point between March or April 1978 and December 1981, Pickle petitioned the circuit court for permission to file an out-of-time appeal from his conviction, which the circuit court denied. On review, the Mississippi Supreme Court ordered an evidentiary hearing on the issue of whether Pickle had knowingly and intelligently waived his right to appeal. After the evidentiary hearing, the circuit court determined that Pickle had properly waived his right to appeal and, thus, again denied Pickle’s request for an out-of-time appeal. The supreme court affirmed the denial in March 1982. Pickle v. State, 791 So.2d 204, 205 (¶ 4) (Miss.2001).

¶5. In September 1997, Pickle filed a PCR motion again seeking an out-of-time appeal from his 1978 conviction and sentence. The circuit court denied the motion, explaining that it had already' determined Pickle had knowingly and intelligently waived his right to appeal and that Pickle had raised no other issues that would entitle him to an out-of-time appeal. On appeal, the supreme court affirmed the circuit court’s decision and held that Pickle was collaterally es-topped from seeking an out-of-time appeal because the issue of his entitlement to an out-of-time appeal had been adjudicated sixteen years before. Id. at 207 (¶ 14).

¶ 6. In June 2004, Pickle filed another PCR motion in the circuit court, arguing that in his 1978 trial, the judge erroneously instructed the jury, and that his counsel was ineffective. Pickle further argued that he was innocent. The circuit court dismissed Pickle’s PCR motion as time-barred and as successive-writ barred. The circuit court further held that Pickle was collaterally estopped from filing the PCR motion since the issue of his entitlement to an out-of-time appeal had already been determined. This Court affirmed the circuit court’s decision in May 2006. Pickle v. State, 942 So.2d 243, 247 (¶ 14) (Miss.Ct.App.2006). Pickle then petitioned the supreme court for a •writ of certiorari, which the court denied on November 20, 2006.

¶ 7. In June 2009, Pickle filed a “Motion for Reconsideration of Court’s Findings of Fact, to Vacate it’s [sic] Interlocutory Order as Void and to Supplement Pending Petition for Out-of-Time Appeal Complaint with Joinder of Appeal Claims of Constitutional Trial Errors, Before Final Judgment Order is Rendered by this Court.” On August 19, 2009, the circuit court denied and summarily dismissed all motions filed by Pickle. The circuit court barred Pickle from bringing any other action regarding his incarceration, either in federal or state court, absent immediate danger or physical injury. Pickle appealed. On appeal, this Court affirmed the circuit court’s dismissal of Pickle’s PCR motion and determination that the PCR motion was frivolous. Pickle v. State, 64 So.3d 1009, 1012 (¶ 11) (Miss.Ct.App.2010).

¶ 8. Significantly, the prior dismissals of Pickle’s petitions, as set forth above, relied on the premise that no other issues would entitle him to relief under section 99-39-5. Since that time, section 99-39-5 was amended to establish relief by providing an exception for DNA testing in cases where such testing and technology were not available at the time of trial. On September 15, 2011, Pickle filed another PCR motion wherein he claimed insufficient evidence existed to support his capital-murder conviction and, for the first time, requested DNA testing of the biological evidence collected during the murder investigation. On October 11, 2011, the circuit court summarily dismissed Pickle’s motion as time-barred and successive-writ barred without holding an evidentiary hearing.

¶ 9. Pickle now appeals the dismissal of his PCR motion, arguing that his PCR motion is excepted from the successive-writ and time-bars. Pickle also argues that the circuit court erred in denying his request for DNA testing, claiming that an exception to the statutory bar exists under section 99-39-5(2). We remand this case to the circuit court for an evidentiary hearing to determine whether a basis exists for the exception to the time-bar to grant relief pursuant to section 99-39-5(2)(a)(ii).

STANDARD OF REVIEW

¶ 10. When reviewing a circuit court’s dismissal of a PCR motion, this Court will only reverse a circuit court’s factual findings if the findings are determined to be clearly erroneous. Bell v. State, 95 So.3d 760, 763 (¶ 7) (Miss.Ct.App.2012) (citing Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004)). Issues of law receive a de novo review. Id.

DISCUSSION

¶ 11. On appeal, Pickle argues that “no rational trier of fact could have found proof of guilt beyond a reasonable doubt that [he] had committed a capital murder.” Pickle claims that his challenge to the sufficiency of the evidence constitutes a constitutional-right violation and, therefore, is excepted from all procedural bars of the Uniform Post-Conviction Collateral Relief Act (UPCCRA). Pickle cites to Rowland v. State, 42 So.3d 503, 506 (¶ 9) (Miss.2010), which states that “errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA.”

¶ 12. In Diggs v. State, 46 So.3d 361, 364 (¶ 5) (Miss.Ct.App.2010) (citing Miss.Code Ann. § 99-39-11(2) (Supp. 2009)), we recognized that “[t]he [circuit] court may dismiss a motion for post-conviction relief without an evidentiary hearing where ‘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.’ ”

¶ 13. Section 99-39-5(2) provides that, in a case where no appeal was taken, a PCR motion “shall be made ... within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired .... ” However, Pickle seeks relief based upon section 99-39-5(2)(a)(ii), the new statutory exception to the three-year time-bar, and Pickle requests that the court order DNA testing of the semen samples from the rape victim herein. Pickle claims his innocence, and he claims that his PCR motion, based on the untested DNA evidence, is excepted from the time-bar.

¶ 14. Pickle argues that the circuit court erred in denying his request for DNA testing. Pickle asserts that the biological evidence collected by the State during the autopsy of Harthcock has never been sent to the crime lab for any type of testing. Pickle submits that the test results would prove his innocence in this case.

¶ 15. Mississippi Code Annotated section 99 — 39—5(l)(f) (Supp.2012) provides:

Any person sentenced by a court of record of the State of Mississippi, including a person currently incarcerated ... may file ... a motion to request forensic DNA testing of biological evidence ... if the person claims:
That there exists biological evidence secured in relation to the investigation or prosecution attendant to the petitioner’s conviction not tested, or, if previously tested, that can be subjected to additional DNA testing, that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution.

¶ 16. Regarding the statute of limitations, section 99-39-5(2)(a)(ii), which the Legislature amended in 2009 to allow petitioners to file a PCR motion requesting DNA testing, mandates:

A motion for relief under this article shall be made within three (3) years after the time in which the petitioner’s direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired .... Excepted from this three-year statute of limitations are those cases in which the petitioner can demonstrate ...:
That ... there exists biological evidence not tested, or, if previously tested, that can be subjected to additional DNA testing that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution.

The Legislature enacted this new statutory provision in 2009, and Pickle filed for relief pursuant to its provisions in 2011.

¶ 17. The record contains transcript excerpts from the testimony of Dr. William Featherston, a pathologist. Pickle labeled these excerpts as “testimony [during] ‘first trial’ held in Holmes County [in] October 1975.” Dr. Featherston testified that he found male sperm in Harthcock’s vagina and cervix. In his PCR motion, Pickle states that “the DNA testing would probably demonstrate (with favorable results) that Pickle would not have been convicted.”

¶ 18. The record reflects that Pickle filed his PCR motion within three years of the enactment of section 99-39-5(2)(a)(ii). Therefore, we reverse the dismissal of Pickle’s PCR motion and remand this case to the trial court for an evidentia-ry hearing to determine whether Pickle is entitled to DNA testing.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEFLORE COUNTY.

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

      . Pickle filed a motion for a change of venue, which was granted.