author: CARLTON, J.,

text:
    MEDS, INC. d/b/a APPS Para Medical Services, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2012-CC-01575-COA.
    Court of Appeals of Mississippi.
    Jan. 14, 2014.

      Jennifer Graham Hall, Jackson, attorney for appellant.
    Albert B. White, Madison, Leanne Franklin Brady, attorneys for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. MEDS Inc., doing business as APPS Para Medical Services (APPS), appeals the Hinds County Circuit Court’s decision to affirm the determination of the Mississippi Department of Employment Security Board of Review (Board of Review) that Anita Murphy’s employment relationship constituted that of an employee of APPS. The record also shows the administrative law judge (ALJ) and Board of Review found that not only Murphy, but also those similarly situated, constituted employees of APPS. Upon review, we find that the Board of Review’s decision is arbitrary due to an erroneous application of the law to the facts and is not supported by substantial evidence. We therefore reverse the Board of Review’s determination that Murphy constituted an employee of APPS, and, in applying the law to the undisputed facts of this case, we render a judgment finding that Murphy’s employment status constituted that of an independent contractor.

FACTS

¶ 2. On July 24, 2008, Murphy filed a claim for unemployment benefits with the Mississippi Department of Employment Security (MDES) after being released from, employment with The Hattiesburg Clinic. In her claim for benefits, Murphy listed APPS, a paramedical company that provides medical testing for individuals seeking insurance coverage, as her most recent employer. Murphy is a certified phlebotomist, and her services were contracted for by APPS’s predecessor, Physicians Inc. The record reflects that APPS works with various insurance companies that offer life-insurance products. Several life-insurance companies require that certain medical tests be performed in order to issue life-insurance contracts. APPS contracts with nurses, doctors, and technicians to provide these medical tests for the various insurance companies.

¶ 3. After MDES found no wages recorded for Murphy, field representative Eldridge Rose conducted an investigation for MDES. After concluding the investigation, the chief of the Tax Department, Veronica England, issued the Tax Department’s decision finding that APPS constituted an “employer,” as defined by Mississippi Code Annotated section 71-5-11 (Supp.2013). MDES accordingly determined that Murphy’s wages should be reported and taxes paid. APPS appealed the Tax Department’s decision.

¶ 4. On February 20, 2009, the ALJ conducted a telephonic hearing. During the hearing, both parties presented evidence, and the ALJ heard testimony from Murphy; Charlene Mitchell, regional director of APPS; and Noreen Prouty, status specialist with MDES. On November 17, 2009, the ALJ affirmed the Tax Department’s determination and held that “an employer-employee relationship did exist between [APPS] and [Murphy] as defined in section 71 — 5—11 (I) (14). ” APPS again appealed.

¶ 5. On February 16, 2010, the Board of Review summarily affirmed the ALJ’s decision. APPS appealed to the Hinds County Circuit Court, which summarily affirmed the decision of the Board of Review. This appeal followed.

STANDARD OF REVIEW

¶ 6. Our standard for reviewing the decision of an administrative agency is limited. Miss. Emp’t Sec. Comm’n v. PDN Inc., 586 So.2d 838, 840 (Miss.1991). This Court will not disturb the Board of Review’s decision unless it: (1) is not supported by substantial evidence, (2) is arbitrary or capricious, (3) falls beyond the scope of authority granted to the agency, or (4) violates a constitutional right. EMC Enter. Inc. v. Miss. Dep’t of Emp’t Sec., 11 So.3d 146, 150 (¶ 9) (Miss.Ct.App.2009); see also URCCC 5.03 (scope of appeals from administrative agencies).

¶ 7. Regarding factual issues and findings of fact, Mississippi Code Annotated section 71-5-531 (Rev.2011) establishes that “the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” With respect to disputes of material facts, we recognize that “a rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise.” Miss. Dep’t of Emp’t Sec. v. Harbin, 11 So.3d 137, 139 (¶ 5) (Miss.Ct.App.2009) (quoting Miss. Dep’t of Emp’t Sec. v. Good Samaritan Pers. Servs., 996 So.2d 809, 812 (¶ 6) (Miss.Ct.App.2008)). This case, however, presents no dispute of material fact; rather, it presents a question as to the application of the law to the undisputed facts.

¶ 8. We review questions of law de novo. See Donald v. Amoco Prod. Co., 735 So.2d 161, 165 (¶ 7) (Miss.1999). Also, in Senior Partners Inc. v. Mississippi Employment Security Commission, 959 So.2d 44, 47 (¶ 7) (Miss.Ct.App.2006), this Court acknowledged that all employers under the Employment Security Act “are compelled to make contributions to the Employment Security Trust Fund ... based upon a percentage of all wages.” These contributions operate as a mandatory excise tax, and upon review of such, “every doubt as to their application must be resolved in favor of the taxpayer and strictly against the taxing power.” Id.; see Mozingo v. Miss. Emp’t Sec. Comm’n., 224 Miss. 875, 388-84, 80 So.2d 75, 78-79 (1955).

DISCUSSION

¶ 9. APPS argues that Murphy constituted an independent contractor, and not an employee, of APPS. As acknowledged, the record shows no disputes as to material facts of the case; rather, the parties disagree as to the application of the relevant law to these particular facts. Thus, we turn to the law applicable to the determination in this case. The requirements to establish an employer-employee relationship are explained in section 71-5-11(I)(14) of the Mississippi Code Annotated (Supp.2013):

Services performed by an individual for wages shall be deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the department that such individual has been and will continue to be free from control and direction over the performance of such services both under his contract of service and in fact; and the relationship of employer and employee shall be determined in accordance with the principles of the common law governing the relation of master and servant.

¶ 10. The relevant workers’ compensation statute, Mississippi Code Annotated section 71-3-3(r) (Rev.2011), defines independent contractor as:

[A]ny individual, firm or corporation who contracts to do a piece of work according to his own methods without being subject to the control of his employer except as to the results of the work, and who has the right to employ and direct the outcome of the workers independent of the employer and free from any superior authority in the employer to say how the specified work shall be done or what the laborers shall do as the work progresses, one who undertakes to produce a given result without being in any way controlled as to the methods by which he attains the result.

¶ 11. In reviewing an application of the law in jurisprudence, the recent case of College Network v. Mississippi Department of Employment Security, 114 So.3d 740, 744 (¶ 14) (Miss.Ct.App.2013) recognized that “[sjection 71-5-11[ (I) ](14) directs us to employ common-law principles of master and servant, and the common law provides a flexible test.” (Citing Miss. Emp’t Sec. Comm’n v. Total Care Inc., 586 So.2d 834, 838 (Miss.1991)). We also recognize that the Mississippi Supreme Court has provided factors to consider when determining whether an employee-employer or independent-contractor relationship exists:

(1) The extent of control exercised over the details of the work;
(2) Whether or not the one employed is engaged in a distinct occupation or business;
(3) The skill required in the particular occupation;
(4) Whether the employer supplies the tools and place of work for the person doing the work;
(5) The length of time for which the person is employed;
(6) The method of payment, whether by the time or by the job; and
(7) Whether or not the work is a part of the regular business of the employer.

PDN, 586 So.2d at 841-42 (citing Miss. Emp’t See. Comm’n v. Plumbing Wholesale Co., 219 Miss. 724, 732, 69 So.2d 814, 818 (1954)).

¶ 12. The relevant law reflects that a “central issue” to consider when determining whether an individual is an employee or an independent contractor is “whether the employer has the right to exercise control over the work of the employee.” Estate of Dulaney v. Miss. Emp’t Sec. Comm’n, 805 So.2d 643, 646 (¶ 13) (Miss.Ct.App.2002). “Stated differently, the relationship status depends upon the extent the putative employer controls, in substance and in detail, the work activities of the putative employee.” College Network, 114 So.3d at 745 (¶ 14) (citation omitted). We consider the test for employee status based on the law applied to the facts of each case. Id. Additionally, we evaluate the physical acts of the work performed in light of the employer’s right of control to determine the employment relationship. Id.

¶ 13. With respect to the determination in this case, MDES argues that Murphy constituted an employee of APPS. MDES states that Murphy’s tasks are the essential part of APPS’s regular business. In support of the determination that Murphy constituted an employee of APPS, the ALJ explained:

[Murphy] was responsible for blood draws and collecting medical history information to be forwarded to the laboratories to be sent to the insurance companies. [Murphy] performed her services under the company’s name. [APPS] set the wages for the services performed by [Murphy]. [Murphy] had to report to work location[s] designated by [APPS] and/or the individuals applying for insurance coverage. . [Murphy] was required to keep in contact and/or report to the company through the computer, that she either accepted or declined the assignments, made appointments with the individual applying for insurance coverage, and when she completed the case. [APPS] did provide some of the materials and equipment for [Murphy] to use in performing her services. [APPS] required that [Murphy] perform the services personally. [APPS] and [Murphy] both could terminate the services without any liabilities.

¶ 14. APPS argues, however, that Murphy constituted an independent contractor rather than an employee, and1 APPS refers to the confidentiality agreement and contract Murphy signed, which states Murphy “shall in no way be considered an employee” of APPS. During the hearing, Murphy asserts that she may have “misinterpreted” some of the questions on the MDES independent-contractor questionnaire, explaining “I’ve worked for [APPS] so long, I guess in my mind I felt like I was an employee. I guess it was just misinterpreted on my part that all of this got started to begin with.” Despite her asserted belief that she was an employee, the record interestingly reflects that the “Confidentiality Agreement and Contract” she signed in 2004 provided that her taxes and withholding would be in accordance with that of an independent contractor, and not an employee. The record also shows that APPS provided Murphy a 1099 tax form each year, reflecting her status as an independent contractor.

¶ 15. We indeed acknowledge this Court has held that the mere fact that a contract declares a worker to be an independent contractor “is not conclusive as to whether the worker is an employee.” Senior Partners, 959 So.2d at 49 (¶ 14). As a result, “[i]t is not necessary for us to decide ... whether the contract taken alone discloses an employer-employee relationship .... [B]oth the contract of service and the facts of operation thereunder must be considered in determining the relationship.” Mozingo, 224 Miss, at 384-85, 80 So.2d at 79. In so doing, courts consider the actual practice of the parties, which supplements their written contract. See PDN, 586 So.2d at 838. Thus, in determining employment status, we first turn to examine the actual practice of the parties and the “Confidentiality Agreement and Contract.”

¶ 16. The “Confidentiality Agreement and Contract” reflects that APPS contracted with Murphy as a paramedical-examiner vendor. In the contract, APPS agreed to engage Murphy as a venipuncturist. The record and course of dealings show the tasks involved entailed driving to an insurance applicant’s home to draw blood, to collect medical information, and to document medical histories from the future insurance applicants, for which Murphy received compensation. The record further shows that APPS contracted similarly with four other nurses in the Hattiesburg area to also serve as such contractors when APPS received an order from an insurance company for an insurance-application exam of some future applicant.

¶ 17. With respect to APPS’s operation, the transcript from the telephonic hearing before the ALJ contains Mitchell’s testimony that Murphy and other contractors with APPS were not required to wear or carry anything identifying them as APPS employees. Murphy provided that her attire was to be professional dress or scrubs. Mitchell also explained that APPS never required Murphy to call in to APPS to account for her time or whereabouts or check to see if any assignments or work orders were available from insurance companies APPS represented.

¶ 18. Additionally, with respect to the facts of the operation, the record contains no evidence that APPS actually supervised or possessed the right to supervise Murphy in the performance of her paramedical-examiner duties, i.e., drawing blood, taking medical histories, or performing other paramedical tasks. The record also reflects that APPS provided no oversight or supervision regarding the standard of medical care exercised by Murphy in performing the paramedical-examiner services relating to each of the work orders. Thus, APPS exercised no training for, nor made a quality review of, her paramedical skills, medical knowledge, or medical documentation. The record also shows that Murphy controlled how much time she spent per work order, controlled her own efficiency, and controlled her own scheduling. She controlled her own time in completing the work orders, as long as she completed medical tasks required by the work order in the time specified therein, which was normally forty-eight hours. The record shows that the estimated hourly wage calculated by the ALJ lacks an evidentiary basis.

¶ 19. The hearing transcript also reflects the online posting procedure APPS used to offer individual jobs or work orders. APPS posted the insurance-medical-examiner jobs on the internet, and Murphy testified that she possessed the authority to accept or decline any of the posted work orders. As acknowledged, once Murphy accepted a work order, the work order required completion within a specific time period, forty-eight hours. APPS possessed no right to cancel the order without being in breach after acceptance of a work order by Murphy. See also DC Gen. Contractors, Inc. v. Slay Steel, Inc., 109 So.3d 577, 582-83 (¶¶ 13-15) (Miss.Ct.App.2013). Upon acceptance of a work order, Murphy explained, she normally possessed forty-eight hours to perform medical-testing services on applicants for insurance, as identified in the order. Additionally, Murphy testified that with the exception of the EKG machine, the “Confidentiality Agreement and Contract” required Murphy to provide “her own equipment and materials for performing such services” at the applicant’s business or home, or she “may elect to purchase from [APPS] materials and equipment for the furnishing of such services.”

¶ 20. As previously acknowledged, Murphy possessed specialized training, obtained prior to her employment with APPS, to perform the medical-examiner tasks required by the identified medical tests, to assess vital signs, and to provide the necessary medical documentation. The “Confidentiality Agreement and Contract” states that APPS would provide no paramedical-examiner training to Murphy; instead, APPS provided her training only as to how to process and complete the forms and reports required by the various insurance companies that APPS represented. The evidence of the actual practice of the parties in the record confirms that APPS provided no medical-examiner training to Murphy. As in Harbin, 11 So.3d at 142 (¶ 15), and College Network, 114 So.3d at 747 (¶ 19), Murphy’s preexisting expertise and qualifications as a phlebotomist or paramedical examiner indicate independent-contractor status.

¶ 21. We acknowledge that the mere fact that a contract declares the status of a worker to be that of an independent contractor is not conclusive in determining employment status. We also similarly recognize that the mere identification of a document as a contract in its heading, or its labeling, does not establish the document as an enforceable employment contract. The text within the four corners of the document executed by the parties must be examined to determine if the document contains the essential elements for contract enforceability. In Cook v. Wallott, — So.3d -, - (¶ 44) (Miss.Ct.App.2013), this Court stated that “the elements of a valid contract are: (1) two or more contracting parties, (2) consideration, (3) an agreement that is sufficiently definite, (4) parties with the legal capacity to make a contract, (5) mutual assent, and (6) no legal prohibition precluding contract formation.”

¶ 22. In reviewing this document herein, we disagree with the conclusion of the ALJ, Board of Review, and circuit court that the “Confidentiality Agreement and Contract” constituted an enforceable contract, much less an enforceable “employment” contract. The text of this agreement lacks the essential elements necessary for contract formation. The gravity of the erroneous conclusion as to its enforceability warrants further discussion, since the decision below rests to some extent upon a finding that this document reflects Murphy’s status as that of an employee. Therefore, we now turn to address enforceability of this agreement.

¶23. This document allowed APPS to offer work orders to multiple providers, and this document provided that when Murphy accepted future work, the parties would agree on a fee from time to time. To establish a lack of enforceability on its own, this document must contain a method for calculating the compensation or fee. This document instead reflected that Murphy would receive future payments from time to time, upon completion of performance of the future work orders, when and if accepted by her, for the fees specified in the respective future orders. The factual findings of the decision below nonetheless erroneously found that Murphy’s compensation indicated an employee status. However, the purported contract identifies no method of compensation and lacks enforceability on its own merits. A review of the actual conduct of the parties shows that the purported contract became enforceable only upon the subsequent acceptance of a work order - that contained the required contract terms. This Court has also repeatedly held that payment per job, like the work orders in this case, rather than payment of a salary, indicates an independent-contractor status. See College Network, 114 So.3d at 748 (¶ 21); Harbin, 11 So.3d 137 at (¶ 15); Miss. Dep’t of Emp’t Sec. v. Prod. Connections LLC, 963 So.2d 1185, 1189 (¶ 11) (Miss.Ct.App.2007).

¶ 24. Mississippi jurisprudence clearly provides that a contract is unenforceable where the price has not been stated with specificity. See Rotenberry v. Hooker, 864 So.2d 266, 270 (¶ 13) (Miss.2003). A contract is unenforceable if the material terms are not sufficiently defined. Id. In Crow v. Crow’s Sports Center Inc., 119 So.3d 352, 356 (¶ 11) (Miss.Ct.App.2012) (citing Duke v. Whatley, 580 So.2d 1267, 1273-74 (Miss.1991)), this Court acknowledged that “[a] contract’s terms must be definite, and without some written evidence of purchase price or a method of determining a purchase price, the contract is a mere memorandum of intent.” The supreme court applies an objective standard to determining definiteness. See Denbury Onshore LLC v. Precision Welding Inc., 98 So.3d 449, 454-55 (¶ 19) (Miss.2012).

¶25. The decision below relies upon this purported contract to find that either party could terminate the contract “at will” and without any liabilities. The decision below concluded this alleged right to terminate “at will” indicated Murphy’s status as an employee. The decision below, however, failed to ascertain that the purported “Confidentiality Agreement and Contract” lacked enforceability, and that an enforceable contract arose only upon the acceptance of the work orders. The decision below further failed to assess whether the individual work orders could be terminated “at will” by either party after acceptance by Murphy. The record shows once Murphy accepted an order, APPS possessed no right to terminate Murphy’s services for that order without being in breach. Moreover, the decision below failed to address, relative to contract enforceability or termination, that no guarantee of any further or future work or work orders existed after Murphy completed a work order. Therefore, after accepting and completing a work order, no contracted .work remained to terminate. Moreover, Murphy possessed no obligation to accept future work orders, and APPS similarly possessed no duty to offer further orders to her. See Prod. Connections, 963 So.2d at 1189 (¶ 11). In summary, the “Confidentiality Agreement and Contract” provided Murphy no right to a contract or to work, but rather only provided Murphy the right to be eligible, along with other eligible paramedical examiners, to accept the offers set forth in future posted individual work orders. This “Confidentiality Agreement and Contract” also failed to specify the particular paramedical examination services to be performed by Murphy, and failed to identify when, or where, or upon what insurance applicant, such services were to be performed in the future. Additionally, the “Confidentiality Agreement and Contract” lacks even the basic element of consideration, further evidencing a lack of enforceability. See Restatement (Second) of Contracts § 72 (1981) (formation and consideration). Consideration requires an element of exchange of performance for a promise. Id.

¶26. The “Confidentiality Agreement and Contract,” along with the facts in the record, shows that this purported agreement constituted an open agreement offered to multiple paramedical examiners, and shows that this document, standing on its own terms, lacked enforceability. The circuit court erred in finding this purported contract allowed at-will termination by either party and also erred in holding that Murphy’s status constituted that of an employee.

¶ 27. As acknowledged, this open agreement failed to provide compensation for the contracted services, and lacked consideration. As such, this agreement was unenforceable as to both parties, and without an enforceable contract, no set of facts can support a claim for breach. See Cook, — So.3d-, at-(¶ 44); Murray Envelope Corp. v. Atlas Envelope Corp., 851 So.2d 426, 429 (¶ 8) (Miss.Ct. App.2003).

¶ 28. With respect to termination, Murphy signed this purported contract years before in 2004, and the document contained no termination date or provision. However, upon acceptance of a work order by Murphy from APPS, time was of the essence to perform the work order within forty-eight hours. APPS therefore possessed no right to unilaterally terminate an order after its offer and then its acceptance by Murphy, without being in breach of the contract terms. See Ferrara v. Walters, 919 So.2d 876, 885 (¶ 25) (Miss.2005); Gunn v. Heggins, 964 So.2d 586, 592 (¶ 11) (Miss.Ct.App.2007) (for time to be of the essence, “the contract must expressly state that time is of the essence or there must be a clear indication that the parties intended for time to be of the essence”).

¶ 29. Based upon the foregoing, the evidence in the record fails to support the decision below that the employment relationship between APPS and Murphy constituted that of an employee and employer. We therefore find the decision of the Board of Review arbitrary due to an erroneous application of the relevant law to the undisputed facts herein. Substantial and credible evidence in the record, and the applicable law, supports the determination that Murphy constituted an. independent contractor. We therefore reverse and render the circuit court’s judgment as to Murphy’s employment status and as to others similarly situated.

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

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

      . The record and oral argument show Murphy was certified by a private association and that Mississippi requires no state licensure for phlebotomists.

      . We recognize that this opinion has not been released for publication in the permanent law reports, and until released, it is subject to revision or withdrawal.

      . The record shows that when an insurance company placed an order with APPS, APPS offered the work orders for the needed paramedical services to the eligible paramedical examiners by communicating the offer online. If one of the multiple eligible examiners accepts the work order offered, and performs the services in accordance with the terms of the work order, then the examiner is paid the amount set forth for that order. Murphy, along with the other examiners, possessed the authority to accept or decline any of the work orders.

      . See Mid-South Packers Inc. v. Shoney’s Inc., 761 F.2d 1117, 1120 (5th Cir.1985).

      . See Miss.Code Ann. § 75-2-311 (Rev.2002) (contracts that leave unspecified terms); and see generally Mid-South Packers Inc., 761 F.2d at 1120 (individual orders that are accepted are each separate contracts); Quick & Grice v. Ashley, 227 Miss. 273, 276-77, 86 So.2d 40, 41 (1956); DC General Contractors, 109 So.3d at 582-83 (¶¶ 13-15).

      . See Mid-South Packers, 761 F.2d at 1120 (5th Cir.1985) (individual orders that are accepted are each separate contracts).

      . See Rotenberry, 864 So.2d at 270 (¶ 13).

      . See generally Ladner v. Pigg, 919 So.2d 100, 102 (¶ 7) (Miss.Ct.App.2005).

      . And others with similar open, unenforceable agreements.

      . EMC, 11 So.3d at 150 (¶ 9); see also URCCC 5.03 (scope of appeals from administrative agencies).


source: Caselaw Access Project

author: FAIR, J.,

license: Public Domain

text:
    Arthur THOMAS a/k/a Arthur Ray Thomas, Jr. a/k/a Arthur Ray Thomas, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CA-00371-COA.
    Court of Appeals of Mississippi.
    Jan. 14, 2014.
    Robert B. McDuff, Sibyl Byrd, Jacob Wayne Howard, Jackson, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.

      Before GRIFFIS, P.J., ROBERTS and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Arthur Thomas seeks the retroactive benefit of Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 188 L.Ed.2d 407 (2012), and its companion case, Jackson v. Hobbs. In those consolidated cases, the United States Supreme Court held that a sentence of life without parole for juveniles convicted of homicide, without more, violates the Eighth Amendment to the Constitution of the United States.

¶2. Following the recent pronouncements of our state’s highest court, we remand Thomas’s case to the Circuit Court of Copiah County “for a new sentencing hearing to be conducted consistently with [the Mississippi Supreme] Court’s opinion in Parker [v. State, 119 So.3d 987 (Miss.2013) ].” Jones v. State, 122 So.3d 698, 703 (¶ 18) (Miss.2013).

FACTS

¶ 3. Thomas was seventeen years old on October 16, 1996, when he and Henry Lee Sanders robbed a small grocery store in Copiah County. The robbery went bad, and Sanders, who went into the store while Thomas remained in their vehicle, shot and killed one of the store employees and wounded the other.

¶ 4. Thomas pled guilty on March 25, 1997, to one count of capital murder and one count of aggravated assault. On the capital murder charge, the circuit court sentenced him to life in prison without eligibility for parole, pursuant to Mississippi Code Annotated sections 97-3-21(3) (Rev.2006) and 47-7-3(1)(h) (Rev.2006). Thomas also received a sentence of twenty years for aggravated assault, to run consecutively.

¶ 5. Thomas points out that he had no prior felony convictions. He has served seventeen years in prison since the robbery occurred and is now age thirty-four, twice the age when he robbed the store.

¶ 6. Thomas has filed two prior motions for post-conviction collateral relief (PCR), in 1997 and 1999. On both occasions, filing pro se, Thomas claimed he was innocent because he did not know that his companion, Sanders, was going to rob the store. In neither prior PCR case did Thomas pursue an appeal.

¶ 7. In November 2012, Thomas filed his third pro se PCR motion, this time adding the argument that his life sentence without parole for capital murder was unconstitutional under the recent decisions of the United States Supreme Court in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Miller v. Alabama, -U.S.-, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). In Graham, the Supreme Court held that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” Graham, 130 S.Ct. at 2034. In Miller, it held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” Miller, 132 S.Ct. at 2469.

¶ 8. The circuit court did not reach the merits of Thomas’s claim for relief under Miller. Instead, it ruled that his claim was procedurally barred because the rule of law announced in Miller is not “retroactive.” Counsel of record joined Thomas, pro bono, for his appeal to this Court.

DISCUSSION

¶ 9. While Thomas’s motion and subsequent appeal were pending, this Court handed down Hye v. State, — So.3d(Miss.Ct.App.2013), and the Supreme Court of Mississippi handed down Jones v. State, 122 So.3d 698 (Miss.2013), and Par ker v. State, 119 So.3d 987 (Miss.2013). All addressed the impact of Miller v. Alabama on juveniles sentenced to life in prison without parole in Mississippi.

¶ 10. In Hye, — So.3d at-(¶ 20), on direct appeal, we held:

Hye, who was sixteen years old at the time of the crime, contends his mandatory life sentence without parole is unconstitutional. The State concedes this, and we agree. The United States Supreme Court recently held that mandatory life imprisonment without parole for those who were juveniles at the time of their crimes violates the Eighth Amendment’s prohibition on cruel and unusual punishments. Miller v. Alabama, [- U.S. -, 132 S.Ct. 2455, 2469, 183 L.Ed.2d 407 (2012)]. The Court in Miller suggested factors to consider when determining whether a juvenile should be sentenced to life or life without parole, including “chronological age and its hallmark features,” “family and home environment,” “circumstances of the homicide offense,” and “the possibility of rehabilitation.” Id. at 2468. Thus, we reverse and remand for resentencing in accordance with Miller.

¶ 11. In Parker, the Mississippi Supreme Court held that sections 97-3-21 and 47 — 7—3(l)(h), when applied without consideration of the Miller factors, violate the United States Constitution. See Parker, 119 So.3d at 995-99 (¶¶ 17-28). That conclusion is directly applicable to Thomas. In Jones the supreme court further extended Miller and Parker to have retroactive effect not only in direct appeal cases, but also in post-conviction collateral relief cases. See Jones, 122 So.3d at 703 (¶ 18).

¶ 12. Thomas also attacks the overall constitutionality of section 47-7-3(1)(h), but Jones directly rejected this argument, which was fully encompassed in the dissent in that case and the dissent in Parker as well. See Jones, 122 So.3d at 702-03 (¶¶ 13-17). The Jones majority held:

To be clear, neither the sentencing statute, Section 97-3-21, nor the applicable parole provision, Section 47—7—3(1)(h), has been abrogated, as posited by the dissent. Section 97-3-21 does not violate the Miller mandate. Section 47-7-3(1)(h) cannot be applied in all cases, but can be applied constitutionally to juveniles who fail to convince the sentencing authority that Miller considerations are sufficient to prohibit its application. Therefore, in order to comply with the United States Constitution and to make Miller considerations more than perfunctory, we put in place a “stop-gap mechanism” which allows the sentencing authority “to annul application of Section 47—7—3(1)(h).” Parker, 119 So.3d [at 995 (¶ 27) ]. This mechanism enables the trial judge to nullify application of subsection (h) to ensure protection of a juvenile’s Eighth Amendment rights.

See Jones, 122 So.3d at 702-03 (¶ 14).

CONCLUSION

¶ 13. We vacate Thomas’s sentence and remand this case to the Circuit Court of Copiah County for a new sentencing hearing to be conducted as follows:

After consideration of all circumstances required by Miller, the trial court may sentence [Thomas], despite his age [at the time of the offense and his conviction], to “life imprisonment.” See Miller, 132 S.Ct. at 2469 (“[W]e do not foreclose a sentencer’s ability to make that judgment in homicide cases.”). However, if the trial court should determine, after consideration of all circumstances set forth in Miller, that [Thomas] should be eligible for parole, the court shall enter a sentence of “life imprisonment with eligibility for parole notwithstanding the present provisions of Mississippi • Code Section 47-7-3(1)(h).”

Parker, 119 So.3d at 999 (¶ 28) (footnote omitted).

¶ 14. Though not exclusive, the Miller factors, noted above in Hye, should be considered and addressed on the record.

¶ 15. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT 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 COPIAH COUNTY.

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


text:
    Roderick SHIELDS a/k/a Roderick L. Shields, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00378-COA.
    Court of Appeals of Mississippi.
    Jan. 14, 2014.

      Roderick Shields, appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before GRIFFIS, P.J., ROBERTS and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Roderick Shields contends his 2002 conviction for forcible rape must be set aside because his indictment cited the wrong subsection of the rape statute. Shields’s post-conviction relief (PCR) claim is time-barred, and, at any rate, the citation was correct when he was indicted; the statute was rearranged in 2003. We find no merit to this or any other issues raised by Shields, and so we affirm the circuit court’s dismissal of his PCR motion.

FACTS

¶ 2. Shields was indicted on April 23, 2002, by a Washington County grand jury. The first line of the document, resembling a header or heading, appears as follows:

INDICTMENT FORCIBLE RAPE 97-3-65(3) (A)

The body of the indictment alleged that Shields “did unlawfully, wilfully, felo-niously and forcibly rape and ravish [the victim], a female person over the age of fourteen years, by having sexual intercourse with [her] against her will and without her consent.”

¶ 3. Shields entered a guilty plea. The circuit court found that he knowingly and voluntarily entered his “plea of GUILTY to the charge of FORCIBLE RAPE.” On September 24, 2002, the court sentenced Shields to serve fifteen years in prison, followed by five years of post-release supervision.

¶ 4. Ten years later Shields filed the instant PCR motion, contending the code section referenced in his indictment provides only for a maximum sentence of five years and is applicable only to those convicted of statutory rape, where the victim is over thirteen years of age and the perpetrator is between eighteen and twenty-one (and thirty-six or more months older than the victim). See Miss.Code Ann. § 97-3-65(3)(a) (Supp.2013).

¶ 5. Shields also claimed he was illegally sentenced to post-release supervision under Mississippi Code Annotated section 47-7-34 (Rev.2011), because he believes it applies only to previously convicted felons.

¶ 6. The circuit court found Shields’s PCR motion time-barred because it was not filed within the three-year limitation period. It further noted that the objections Shields now raises about his indictment were waived by his guilty plea. The court also found that, notwithstanding the time-bar, Shields’s claims were without merit. Shields’s motion was dismissed without an evidentiary hearing, and he appeals.

STANDARD OF REVIEW

¶ 7. The circuit court may summarily dismiss a PCR motion without an evi-dentiary hearing “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Supp.2013). To succeed on appeal, the petitioner must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss.1999).

¶ 8. When reviewing the denial of a PCR motion, an appellate court “will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008). Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Young, 731 So.2d at 1122 (¶ 9).

DISCUSSION

1. Indictment

¶ 9. As a threshold issue, we note that this claim is barred by the three-year statute of limitations for PCR claims. Miss. Code Ann. § 99-39-5(2) (Supp.2013). Shields filed his PCR motion in 2012, while his conviction for rape was in 2002. There are exceptions to the time-bar enumerated in the statute, but Shields has not claimed one applies. See Miss.Code Ann. § 99-39-5(2)(a)-(b). The burden is on the movant to show that his claim is not procedurally barred. Jackson v. State, 860 So.2d 653, 661 (¶ 16) (Miss.2003).

¶ 10. Notwithstanding the time-bar, this claim is without merit. In 2003, Mississippi Code Annotated section 97-3-65 was amended and rearranged. We addressed this same argument in Davis v. State, 29 So.3d 788, 790-91 (¶¶ 7-8) (Miss.Ct.App.2009), where we observed:

The notes to section 97-3-65 explain that on June 3, 2003, the Joint Legislative Committee corrected a typographical error in this section by changing section 97 — 3—65(1) (c) to section 97-3-65(2) and renumbering the remaining paragraphs accordingly. Rape, which was previously numbered section 97-3-65(3)(a), was moved to section 97-3-65(4)(a) after the correction. Thus, Davis was correctly indicted for rape in 2001 under section 97 — 3—65(3)(a), which is now located at Mississippi Code Annotated section 97-3-65(4)(a) (Supp.2008).

¶ 11. Shields was indicted in 2002, and his indictment pointed to the correct subsection of the statute as it existed at the time. The fact that the statute was rearranged more than six months after Shields pled guilty caused him no injury and is not grounds for relief.

¶ 12. Additionally, it is well established that “[t]he incorrect citation of a statute number does not alone render an indictment defective, but rather is ‘mere surplusage’ and not prejudicial to the defendant.” Brown v. State, 944 So.2d 103, 106 (¶ 8) (Miss.Ct.App.2006) (quoting Evans v. State, 916 So.2d 550, 552 (¶ 6) (Miss.Ct.App.2005)). “When an indictment provides the essential elements of the crime, the statutory subsection under which the defendant was charged need not be specified.” Evans, 916 So.2d at 552 (¶ 6) (citation omitted); see also URCCC 7.06 (outlining requirements of a valid indictment).

¶ 13. This issue is time-barred and without merit.

2. Post-Release Supervision

¶ 14. Shields was sentenced to twenty years, with fifteen to serve, “followed by five years [p]ost-[r]elease [supervision pursuant to Miss.Code Ann. § 47-7-34.” Shields contends he was illegally sentenced under section 47-7-34 because he was a first-time offender.

¶ 15. It is true that post-release supervision under section 47-7-34, unlike probation under section 47-7-33, may be applied to previously convicted felons. See Tucker v. State, 93 So.3d 913, 916 (¶ 14) (Miss.Ct.App.2012). However, that does not mean section 47-7-34 may only be applied to previously convicted felons. The plain language of the statute permits the imposition of post-release supervision “[w]hen a court imposes a sentence upon a conviction for any felony committed after June 30, 1995 .... ” (Emphasis added).

¶ 16. Shields was subject to being sentenced to post-release supervision for his 2002 sentence for rape, a felony. His sentence was not illegal.

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

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

      . Miss.Code Ann. § 47-7-33 (Rev.2011).


text:
    James Alfred BEEKS, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CA-01439-COA.
    Court of Appeals of Mississippi.
    Jan. 14, 2014.

      Wanda Turner-Lee Abioto, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. In 1999, James Beeks pled guilty to armed robbery. The circuit court sentenced him to thirty years, with ten suspended. After sentencing Beeks, the judge erroneously stated that Beeks was statutorily prohibited from being released for ten years because a firearm was used in the robbery. Beeks interpreted this to mean he would be released in ten years. But when Beeks learned his jailers intended to keep him for the whole twenty years, he filed a petition to clarify his sentence. The trial court denied it. This appeal stems from Beeks’s second filing — his first styled a motion for post-conviction relief (PCR) — where he argues that his misunderstanding of the sentence rendered his guilty plea involuntary. The circuit court found the motion barred as a successive writ. We affirm, noting further that Beeks’s appeal is actually from the denial of a Rule 60(b) motion to alter or amend the judgment dismissing his PCR motion.

FACTS

¶ 2. The trial judge unambiguously sentenced Beeks to thirty years in the custody of the Mississippi Department of Corrections, with ten years suspended. But after pronouncing the sentence, the judge added: “Because a firearm was used in the commission of this crime, you will not be eligible for release or consideration for good time for ten years as provided in Section 47-7-3 Sub D, Sub 2-1, Mississippi Code Annotated, 1972.” The sentencing order concluded similarly: “Defendant shall be required to serve a term of ten years. Section 47—7—3(1)(d)(ii).”

¶ 3. It appears the circuit court confused subsections (1)(d)(ii) and (1)(d)(i). Subsection (1)(d)(i) denies parole eligibility for ten years for robbery convictions involving the display of a firearm, but it does not apply to persons convicted after September 30, 1994. After that date, subsection (1)(d)(ii) applies, and it prohibits parole entirely.

¶ 4. Beeks filed a “Petition to Clarify Sentence” in May 2003, where he claimed the trial court’s true intent was that he serve only ten years. He also half-heart-edly asserted that his sentence was illegal and his guilty plea involuntary. The petition was denied. Beeks attempted to file essentially the same petition in November 2006, under the cause number of his criminal conviction, but it was never actually filed as an original civil action as the PCR Act requires. See Miss.Code Ann. § 99-39-7 (Supp.2013). In 2009, Beeks pursued a Rule 60(b) motion for relief from the denial of his 2003 petition. The trial court denied that as well.

¶ 5. In May 2011, Beeks filed another motion, this one as an original civil action expressly styled a motion for post-conviction relief. Beeks again contended his guilty plea was involuntary, and he also claimed to have been the victim of ineffective assistance of counsel. The 2011 motion was dismissed as a successive writ, but the trial court did enter a “sua sponte” order under Beeks’s criminal cause number, striking the language discussing section 47-7-3(1)(d)(ii) from the sentencing order as erroneous surplusage. See Cochran v. State, 969 So.2d 119, 122 (¶ 9) (Miss. Ct.App.2007) (holding that parole eligibility is not within the trial court’s sentencing power and any language regarding parole in a sentencing order is mere surplusage).

¶ 6. Almost forty days after the entry of the dismissal of his 2011 PCR motion, Beeks filed a “Motion to Reconsider Pursuant to Rule 60(b).” The appeal before us is from the order denying this latest Rule 60(b) motion.

DISCUSSION

¶ 7. Because Beeks did not appeal the dismissal of his 2011 PCR motion within thirty days, or otherwise toll the running of the time to appeal the dismissal directly, this appeal is from the denial of the Rule 60(b) motion, and our review is limited to whether the Rule 60(b) motion was properly denied. Woods v. Victory Mktg. LLC, 111 So.3d 1234, 1236 (¶ 8) (Miss.Ct.App.2013) (citations omitted). We apply an abuse of discretion standard to the denial of a Rule 60(b) motion. Perkins v. Perkins, 787 So.2d 1256, 1261 (¶ 9) (Miss.2001).

¶ 8. The rule provides six bases for relieving a party from a final judgment:

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

¶9. Beeks raises only a single issue in his brief on appeal: whether his guilty plea was involuntary. Though he seems to have recognized the need to file a Rule 60(b) motion, both that motion and his brief on appeal are nothing more than attempts to relitigate the underlying merits of his PCR motion for a fourth time. But “[a]n appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review.” Bruce v. Bruce, 587 So.2d 898, 903-04 (Miss.1991). Instead, “Rule 60(b) is for extraordinary circumstances, for matters collateral to the merits....” Id. at 903. It “should not be used to relitigate cases.” S. Healthcare Servs. Inc. v. Lloyd’s of London, 110 So.3d 735, 742 (¶ 16) (Miss.2013). Nor is a Rule 60(b) motion a substitute for a timely appeal. Id. at 742 (¶ 14).

¶ 10. Beeks is not entitled to relief from the judgment denying his 2011 PCR motion. We therefore affirm the trial court’s judgment denying the Rule 60(b) motion.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND JAMES, 33., CONCUR.

      . M.R.C.P. 60(b).

      . Miss.Code Ann. § 47-7-3 (Rev.2011).


author: LEE, C.J., FAIR, J., CARLTON, J.,

text:
    Tamra W. KING, Appellant v. Joseph Lynn KING, Appellee.
    No. 2012-CA-00515-COA.
    Court of Appeals of Mississippi.
    Jan. 14, 2014.

      Ronald Henry Pierce, attorney for appellant.
    Clifford C. Whitney III, Vicksburg, attorney for appellee.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Tamra and Joseph King were married in 1990. The parties separated in March 2009, and Tamra filed for divorce in the Yazoo County Chancery Court in June 2009. Ultimately, the parties agreed to a divorce on the ground of irreconcilable differences. The parties further agreed Tamra would retain custody of the couple’s two minor children and Joseph would pay $805 per month in child support.

¶ 2. After a trial, the chancellor distributed the marital estate, set the children’s visitation with Joseph, and denied requests for alimony. Tamra now appeals, asserting the chancellor erred in: (1) dividing the marital estate; (2) failing to find Joseph committed fraud by filing an inaccurate Rule 8.05 financial statement; (3) attempting to equitably divide the couple’s assets without requesting an accurate Rule 8.05 form from Joseph; (4) determining Joseph’s earning capacity; (5) finding she owned several acres of land; and (6) finding she disposed of marital assets.

STANDARD OF REVIEW

¶ 3. We afford chancellors much discretion in our review of domestic-relations cases. Steiner v. Steiner, 788 So.2d 771, 777 (¶ 18) (Miss.2001). This Court will not disturb a chancellor’s findings unless they are manifestly wrong or clearly erroneous, or the chancellor applied an erroneous legal standard. Mizell v. Mizell, 708 So.2d 55, 59 (¶ 13) (Miss.1998).

DISCUSSION

I. DIVISION OF MARITAL ESTATE

¶4. The central issue of Tamra’s appeal is whether the chancellor erred in dividing the marital estate. Specifically, Tamra claims the chancellor erred in failing to award her a percentage of Joseph’s pension from the United States Navy. Joseph’s monthly income of $1,597 consisted of his $1,144 per month pension and his $453 per month in military disability benefits. The chancellor ordered a valuation of Joseph’s pension, which stated the future income stream was valued between $405,238.05 and $474,707.78, depending upon the cost-of-living adjustment.

¶ 5. Upon review of the record, we can find no error by the chancellor. The chancellor made comprehensive findings in dividing the marital estate and followed the Ferguson factors in doing so. The chancellor did not specifically state that the military pension was a marital asset. However, it is clear the chancellor viewed the pension as a marital asset, as the chancellor cited to case law recognizing that a chancery court has authority, where equity so demands, “to order a fair division of property accumulated through the joint contributions and efforts of the parties,” including military pensions. See Brown v. Brown, 574 So.2d 688, 690 (Miss.1990). The separate opinion is' correct that Tamra does have an interest in Joseph’s military-retirement for the years the couple was married. However, that does not mean Tamra is automatically entitled to a portion. As we previously stated, it is within the chancellor’s discretion to determine whether equity demands such a division. In this instance, the chancellor determined that Joseph’s military pension was his only source of income and that “Tamra’s request for one-half of [Joseph’s] future monthly retirement would leave [Joseph] with $572 per month. [Joseph] would not be able to pay his child support of $305 and live.” The chancellor noted that Tamra’s gross monthly income of approximately $4,100 was more than twice that of Joseph and that awarding her half of his pension would be inequitable. The chancellor ultimately awarded the majority of the assets to Tamra, finding this eliminated the need to award alimony. This issue is without merit.

II. & III. RULE 8.05 FINANCIAL STATEMENT

¶ 6. Tamra contends the chancellor erred in failing to find Joseph committed fraud on the court by filing an erroneous Rule 8.05 financial statement. Tamra complains Joseph did not submit proof of his military retirement and other sources of income in his statement. Joseph’s Rule 8.05 statement includes his monthly income from his pension and disability checks from the Navy. Joseph did admit he sold farm products such as eggs and chickens but testified he made no profit off the sale of these items. Joseph further testified he had $1,000 in cash, which he did not list on his Rule 8.05 statement. It is clear from the record that the chancellor was aware Joseph had $1,000 in cash not listed in his financial statement and was aware of Joseph’s sources of income from his pension and disability checks. The chancellor also entered an order requiring a valuation of Joseph’s Navy pension be performed and submitted for her review prior to her division of the marital assets. Tamra is correct that the intentional filing of a substantially false Rule 8.05 financial statement constitutes a fraud on the court. See Trim v. Trim, 33 So.3d 471, 478 (¶ 17) (Miss.2010). However, we find no evidence that Joseph intentionally filed a substantially false Rule 8.05 statement. These issues are without merit.

IV. JOSEPH’S EARNING CAPACITY

¶ 7. In her next issue, Tamra contends the chancellor erred in determining Joseph’s earning capacity was $1,597, or the total of his pension and disability checks. However, from the evidence presented, we can find no error by the chancellor. In addition to his monthly pension, Joseph received disability benefits due to back and leg problems. Joseph testified he had certain skills and could perform work on his property, and he was not able to work for an extended period of time. Tamra offered no definitive proof to the contrary. This issue is without merit.

V. LAND OWNERSHIP

¶ 8. Tamra claims the chancellor erred in finding she acquired three to four acres of land after the parties separated. Tamra contends she was renting the property, including the residence on the property. The chancellor determined the property to be nonmarital and noted there was no evidence offered as to the value of the land. The chancellor found the property was purchased after the parties separated; thus, the property was ■ Tamra’s separate property and not subject to equitable distribution. Even if the chancellor mischar-acterized this piece of property, we find no error. The chancellor determined the property to be Tamra’s separate property and did not consider it in equitably dividing the assets. This issue is without merit.

VI. DISSIPATION OF MARITAL ASSETS

¶ 9. Tamra contends the chancellor erred in finding she disposed of marital assets after the separation, specifically thirty goats. Tamra claims the goats belonged to her daughters. Tamra and her daughters took the goats when they moved out of the marital home. Regardless, the chancellor placed no value on the goats. This issue is without merit.

¶ 10. Tamra further claims the chancellor underestimated Joseph’s dissipation of the marital assets. After the separation, Joseph cashed in his life-insurance policy, receiving approximately $22,269, and a mutual fund, receiving $6,740.70. However, as previously stated, the chancellor made detailed findings on the Ferguson factors and took into account Joseph’s dissipation of his life-insurance policy and other relevant items in dividing the marital estate. This issue is without merit.

¶ 11. THE JUDGMENT OF THE YA-ZOO COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., . ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. FAIR, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY ROBERTS, J.; GRIFFIS, P.J., MAXWELL AND JAMES, JJ., JOIN IN PART. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY JAMES, J. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

FAIR, J.,

specially concurring:

¶ 12. The issue dividing the majority and dissent is whether there was a Hemsley-Ferguson-Armstrong compliant treatment of military retirement benefits belonging to Joseph. Those benefits were being paid to him monthly, having matured from a dormant asset into a stream of income. For that reason I concur with the majority in recognizing that the treatment of such benefits by the chancellor was in accord with the intent of those three cases and their progeny.

¶ 13. The Supreme Court of Mississippi handed down Hemsley and Ferguson in July 1994, providing factors for consideration by chancellors in establishing and equitably dividing marital assets. In 1993, Armstrong had set out similar factor guidance for determining alimony. Later rulings have emphasized that these three cases govern financial relations — past, present, and future — of divorcing spouses, and should be considered together, with one receding in effect when another increases.

¶ 14. The first case recognizing the interdependency of those three “factor discussion” cases was handed down five months after Hemsley and Ferguson. In Johnson v. Johnson, 650 So.2d 1281 (Miss.1994), the supreme court introduced the concept of remedying, through alimony, a “deficit” in income and lifestyles between parties after equitable division of their marital property and evaluation of their separate property, if any. A chancellor is required to first determine income from employment and from marital property and separate property. Then, if a deficit results, then the chancellor should award alimony in one or more of its three common forms (lump sum, rehabilitative, and periodic) to address the deficit. Overall fairness, equity, and especially finality un-dergird such treatment, with an emphasis in recent cases placed on avoidance, if at all possible, of continuing financial relationships between spouses (other than child support).

1115. The Uniformed Services Former Spouses’ Protection Act (USFSPA), cited in both the majority and the dissent, has been compared on occasion by the supreme court to the 1986 COBRA provisions under which a chancellor may divide marital ERISA qualified retirement plans (Tamra’s 401 (k), for instance) without tax consequence. However, Joseph’s military retirement, like Tamra’s PERS retirement, and all other government retirement programs, are exempt from the COBRA Act and its “Qualified Domestic Relations Orders” (QDRO). Military retirement has its own requirements for benefit distribution in divorce cases.

¶ 16. USFSPA allows only income streams from military retirement benefits to be awarded, prohibiting lump sum apportionment and limiting the total of all alimony and child support to 50% of the service member’s regular retirement income stream. Thus, the maximum benefit possible for Tamra under those restrictions is $267 monthly, which is half of Joseph’s $1,144 less $305 in agreed child support. Apportioning that amount to Tamra as payment, in installments, for her share of a property interest in Joseph’s retirement would raise her gross $4,100 per month to $4,867 and reduce Joseph’s to $1,330, further increasing the deficit that favors an award of alimony to Joseph.

¶ 17. We should formally recognize the difference between an ERISA plan and military retirement plans, and perhaps all retirement accounts actively paying monthly benefits which cannot be altered. For example, PERS contributions on early termination of employment, and 401(k) and IRA contributions at any time, may be withdrawn by a spouse at the time of divorce and are therefore still divisible, some through a QDRO without loss of tax-deferred status. On the other hand, a vested income stream that has commenced in a government plan is not, as the majority recognizes, divisible or payable in lump sum, and should be considered under the Armstrong alimony prong only.

¶ 18. Such treatment of an existing retirement income stream would be in accord with the view our supreme court takes of “good will” in business valuations, likewise not a divisible asset readily convertible to cash but rather a source of monthly income to be considered in alimony determination only.

ROBERTS, J., JOINS THIS OPINION. GRIFFIS, P.J., MAXWELL AND JAMES, JJ., JOIN THIS OPINION IN PART.

CARLTON, J.,

concurring in part and dissenting in part:

¶ 19. I respectfully dissent in part due to the chancellor’s erroneous application of the law when identifying marital property and separate property for purposes of equitable distribution. The chancellor did not identify Tamra’s marital-personal-property interest in the portion of Joseph’s military retirement that was earned during the marriage wherein she supported the marriage and materially contributed to the accumulation of the marital property. In Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994), the Mississippi Supreme Court directed chancellors to support their holdings with findings of fact and conclusions of law when equitably dividing property. I respectfully submit that since Tamra’s interest in Joseph’s military retirement was not included in the consideration of marital property, then the chancellor’s findings of fact and conclusions of law are erroneous. Also, in dissenting, I acknowledge that even though the chancellor considered the propriety of alimony, the chancellor’s consideration of equitable division of property is separate and distinct from her consideration of alimony. I raise no dispute with the majority’s acknowledgment that Tamra is not automatically entitled to a portion of Joseph’s military retirement, but she is entitled to a fair consideration of her property .interest when the chancellor equitably divides the marital property. The failure to identify her marital-property interest in Joseph’s retirement precluded such a fair consideration. Additionally, the equitable division of marital property occurs prior to any consideration of alimony. See Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss.1994).

¶ 20. Equitable distribution of property of a marriage requires as a first step that the property be properly identified as marital or separate in accordance with Ferguson, 639 So.2d at 928. Since in this case Tamra’s marital-property interest in Joseph’s retirement was not identified or considered in the equitable distribution of the property of the marriage, I would reverse and remand this case to the chancellor for consideration. In this case, Joseph’s military-retirement benefits that he earned during the marriage are marital property and are subject to equitable distribution under our state’s jurisprudence because of Tamra’s contribution to the marriage during Joseph’s military service. Therefore, since the chancellor failed to consider Tamra’s interest in the military retirement, I would reverse and remand this case for reconsideration of the equitable distribution by the chancellor.

¶ 21. “Military retirement benefits are considered personal property and as such are subject to equitable division in a divorce proceeding.” Rennie v. Rennie, 718 So.2d 1091, 1095 (¶ 13) (Miss.1998) (citing Hemsley, 639 So.2d at 914). As explained in Hemsley, “[t]he federal government has vested state courts with the power to allocate military retirement pay pursuant to a divorce decree.” Hemsley, 639 So.2d at 913 (citing 10 U.S.C. § 1408(c)(1) (Supp.1992)). The Mississippi Supreme Court has applied this rule to state courts in Mississippi. Powers v. Powers, 465 So.2d 1036, 1037 (Miss.1985). “Assets acquired or accumulated during the , course of a marriage are subject to equitable division unless it. can be shown by proof that such assets are attributable to one of the parties’ separate estates prior to the marriage or outside the marriage.” Hemsley, 639 So.2d at 914. The supreme court in Hemsley also recognized that “[tjhere is a distinction between alimony and retirement benefits.” Id. “In reference to a spouse’s equitable right to a share of the other spouse’s military retirement pay, [the supreme court has] reiterated that a chancery court has authority, where equity so demands, to order a fair division of property accumulated through the joint contributions and efforts of the parties.” Id. In general, “[a] spouse who has made a material contribution toward the acquisition of property which is titled in the name of the other may claim an equitable interest in such jointly accumulated property incident to a divorce proceeding.” Ferguson, 639 So.2d at 935 (quoting Jones v. Jones, 532 So.2d 574, 580 (Miss.1988)). Further, “[t]he non-monetary contributions of a traditional housewife have been acknowledged by.[the supreme court], and to some extent, case law has helped lessen the unfairness to a traditional housewife in the division of marital property.” Id. at 926.

¶ 22. Joseph served in the United States Navy from 1982 until 2002. He and Tamra married in 1990 and separated in 2009. Thus, Joseph’s military service from 1990 until his retirement in 2002 overlapped with his marriage to Tamra. The record reflects that Tamra materially contributed to the accumulation of Joseph’s military retirement during these. twelve years by her support of his military service and their marriage. Consistent with this state’s precedent, Tamra therefore possesses a property interest in Joseph’s military retirement earned during the years of marriage that overlapped with Joseph’s military service. See Hemsley, 639 So.2d at 913; Ferguson, 639 So.2d at 928.

¶ 23. As previously acknowledged, in Ferguson, the Mississippi Supreme Court provided the following guidelines for chancellors to follow in the equitable division of marital property:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality [and] quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
2. The 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.
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
8. Any other factor which in equity should be considered.

Ferguson, 639 So.2d at 928.

¶ 24. In the chancellor’s order, under the heading “Application of the Ferguson Factors,” the chancellor identified the marital property in a chart entitled “Assets and Liabilities of the Parties.” The chancellor identified the following retirement accounts in this chart: (1) “Independent Solution 401K (Wife)”; (2) “PERS State Retirement (Wife)”; (3) “Franklin Templeton IRA”; and (4) “Vanguard Mutual Fund.” The order shows that the chancellor did not include any marital interest in Joseph’s military retirement in her identification of marital property. On appeal, Tamra argues that it is apparent from this chart that the chancellor “failfed] to place any value on [Joseph’s] military pension, which future income stream was valued, at ... the chancellor’s own order, at between $405,238.05 and $474,707.78, which was not disputed by [Joseph].” The chart included in the chancellor’s order shows that when the chancellor divided the marital property, she awarded Tamra $18,181.20 and awarded Joseph $11,194.02. However, as Tamra asserts in her appellate brief, when considering Joseph’s military retirement, Tamra’s award still amounts to $18,181.20, but Joseph’s award increases to an amount between $416,432.07 and $485,901.80, depending on the cost-of-living adjustment placed on the military retirement. At the final hearing in this matter, Joseph testified that he would receive $1,144 per month in military-retirement benefits for the remainder of his life.

¶ 25. Based upon the foregoing, I respectfully dissent as I find in this particular case that the chancellor’s failure to consider the military-retirement benefits in the equitable distribution of the property was an erroneous application of our law that lacks factual support.

JAMES, J., JOINS THIS OPINION IN PART.

      . UCCR 8.05.

      . Joseph’s military disability benefits are not subject to equitable distribution. Mallard v. Burkart, 95 So.3d 1264, 1273 (¶ 23) (Miss.2012).

        . Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994).

      . Hemsley v. Hemsley, 639 So.2d 909, 912-13 (Miss.1994); Ferguson v. Ferguson, 639 So.2d 921, 926 (Miss.1994); Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993).

      . See Lewis v. Lewis, 54 So.3d 216, 218 (¶¶ 3-4) (Miss.2011); Singley v. Singley, 846 So.2d 1004, 1010-11 (¶¶ 17-18) (Miss.2002).

      . The record reflects that Tamra supported the marriage and Joseph's military service. Further, Tamra's testimony showed that she was unable to establish her own career and retirement because of the couple’s relocations from state to state due to Joseph’s military service.

      . See Deborah Bell, Bell on Mississippi Family Law § 7.07 (2005).

      . The Uniformed Services Former Spouses’ Protection Act (USFSPA), which authorizes state courts to divide military retirement pay as a marital asset, is codified at 10 United States Code section 1408 (2006). This section also provides former spouses a means to enforce a chancellor's property award by direct payments through the service member’s retirement payments. While the USFSPA gives states the authority to determine whether military benefits are separate, marital, or community property, the terms of the USFSPA must still be followed with regard to the amount of retirement benefits awarded to the former spouse. "The total amount of the disposable retired pay of a member payable under all court orders pursuant to subsection (c) may not exceed 50 percent of such disposable retired pay.” 10 U.S.C. § 1408(e). Also, the benefits may not be awárded as a lump sum, as state courts "have not been granted the authority to treat total retired pay as corn-munity property.” Mansell v. Mansell, 490 U.S. 581, 589, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989). For definitions relevant to the USFSPA, see 5 United States Code section 8331 (2006) and 10 United States Code section 1408.

      . According to the chancellor’s final judgment, Michelle Mabry, the financial advisor who performed the valuation of Joseph’s military-retirement benefits, determined that "Joseph’s future income stream is $474,707.78 at 4% cost of living adjustment (COLA) and $405,238.05 at 3% COLA.”

      . Joseph also receives military disability benefits of $453 a month. In Mansell, the United State Supreme Court found that the USFSPA fails to grant state courts the power to treat as divisible military retirement pay that has been waived in order to receive military disability pay. Mansell, 490 U.S. at 594-95, 109 S.Ct. 2023. The chancellor here did not consider Joseph’s disability benefits in the division of property. However, in Steiner v. Steiner, 788 So.2d 771, 777-78 (¶ 21) (Miss.2001), the Mississippi Supreme Court acknowledged that some state courts have applied the narrower finding in Rose v. Rose, 481 U.S. 619, 107 S.Ct. 2029, 95 L.Ed.2d 599 (1987), to hold that disability payments may be considered as a factor in determining a veteran's ability to pay spousal maintenance and child support.


text:
    Nicholas THOMPSON, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2013-CC-00170-COA.
    Court of Appeals of Mississippi.
    Jan. 14, 2014.
    Nicholas Thompson, appellant, pro se.

      Albert B. White, Madison, Leanne Franklin Brady, attorneys for appellee.
    Before GRIFFIS, P.J., ROBERTS and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Nicholas Thompson was employed by a staffing agency, Real Time Staffing Services Inc. He was placed as a laborer at a company called Chromcraft. Thompson left that job because he wanted permanent employment. His application for unemployment benefits was denied by the Mississippi Department of Employment Security’s claims examiner. The denial was affirmed by the MDES administrative law judge (ALJ), the MDES Board of Review, and the circuit court. We also affirm.

FACTS

¶2. At the ALJ’s hearing, Thompson testified he had worked at Chromcraft for about nine months. He said he had applied for “full-time” employment with Chromcraft but was told they did not have a position available. The company was partially closed for the Fourth of July holiday, and Thompson was not offered work during the week of the holiday. Thompson decided to leave the Chromcraft position at that time, and he began working with the staffing agency to place him with another employer that might hire him permanently or “full-time.” He did not return to Chromcraft after the holiday. Thompson was shortly thereafter placed with another company, but that lasted only about three weeks.

¶ 3. Real Time’s representative, Amanda Taylor, largely agreed with Thompson’s account, except that she testified Thompson quit his assignment to Chromcraft without notice. Real Time considered this to be a “voluntarily quit,” but later rehired him for another assignment. Thompson quit that one too, only two weeks after placement, again without notice.

¶ 4. MDES determined Thompson had voluntarily quit without good cause, and denied him unemployment benefits for that reason.

STANDARD OF REVIEW

¶ 5. “The scope of review in an unemployment-compensation case is limited. Absent fraud, the findings of fact of the Board of Review are conclusive if supported by substantial evidence.” Brown v. Miss. Dep’t of Emp’t Sec., 29 So.3d 766, 769 (¶ 7) (Miss.2010) (citation omitted). “A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise.” Sprouse v. Miss. Emp’t Sec. Comm’n, 639 So.2d 901, 902 (Miss.1994).

DISCUSSION

¶ 6. At issue is Thompson’s claim for unemployment benefits stemming from his separation from Real Time after quitting Chromcraft. Neither party contends his subsequent rehiring and separation are relevant to this appeal.

¶ 7. The ALJ and the Board of Review found that Thompson had voluntarily quit his employment without good cause. Under Mississippi law, a worker is disqualified from receiving unemployment benefits if he left work voluntarily without good cause. Miss.Code Ann. § 71-5-513(A)(l)(a) (Supp.2013).

¶ 8. As for whether Thompson quit work voluntarily, the Mississippi Supreme Court “has held on numerous occasions that the question of whether an employee voluntarily quits or was discharged is a question of fact for the [MDES] to decide.” Huckabee v. Miss. Emp’t Sec. Comm’n, 735 So.2d 390, 394 (¶ 14) (Miss.1999) (citations omitted). Here, both Thompson and the employer’s representative testified that Thompson left his assignment with Chrom-craft to pursue another job opportunity that would allow him a better chance at permanent, full-time employment. This supports the Board of Review’s finding that Thompson left voluntarily.

¶ 9. Thompson’s argument on appeal contradicts his testimony at the hearing. He now claims he was terminated from Chromcraft rather than leaving voluntarily. He states in his brief on appeal that he left a message stating he had an emergency and that he could not come back to work at Chromcraft because returning to the job “was detrimental to his health, safety, and morals,” without elaborating. This argument must fail because we cannot consider new evidence on appeal; appellate courts are constrained to the record created before MDES. Miss. Code Ann. § 71-5-531 (Rev.2011); Bedford Care Ctr. v. Kirk, 935 So.2d 1135, 1139 (¶ 18) (Miss. Ct.App.2006).

¶ 10. As for good cause, “[t]he burden of proving good cause for leaving employment voluntarily rests with the employee.” Quinn v. Miss. Dep’t of Emp’t Sec., 56 So.3d 1281, 1283 (¶ 10) (Miss.Ct. App.2011) (citing Miss.Code Ann. § 71-5-513(A)(1)(c) (Supp.2010)). Thompson offers no argument of good cause on appeal, nor does evidence of good cause appear in the record. While Thompson did testify he wanted “full-time” work, he did not elaborate. In particular, he did not testify to a “substantial reduction in earnings” or some other explanation constituting good cause that would permit him to quit and collect unemployment benefits. See Miss. Emp’t Sec. Comm’n v. Benson, 401 So.2d 1303, 1304 (Miss.1981). Instead, it appears Thompson quit because Chromcraft would not hire him directly, even though it was willing to retain him through the staffing agency.

¶ 11. We find substantial evidence evidence in the record to support the MDES Board of Review’s decision to deny unemployment benefits.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY IS AFFIRMED.

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

      . The company was also sometimes called “Select Staffing” in the record.

      . It is not clear from Thompson’s testimony whether he wanted more hours through Real Time or a permanent position directly with Chromcraft.


text:
    Lamario SMOOT a/k/a Lemario Smoot, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00911-COA.
    Court of Appeals of Mississippi.
    Jan. 14, 2014.
    Hinds County Circuit Court, Jeff Weill Sr., J.
    Office of State Public Defender by Justin Taylor Cook, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.

      Before GRIFFIS, P.J., ROBERTS and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Lamario Smoot appeals from a judgment of conviction of one count of robbery following a jury trial on September 26, 2011. He was sentenced to fifteen years’ imprisonment. Finding no error, we affirm.

FACTS

¶ 2. On April 24, 2010, Terri Galloway, a cashier at the Family Dollar in Jackson, was approached at her register by a man purchasing batteries. When she opened the register, he began grabbing money from it. As Galloway began to call out to her manager, the man said, “Shut up before I pull this gun out on you.” He then left with the cash.

¶ 3. Sometime later, the Jackson police presented Galloway with a photo array, and she identified Smoot as the robber. Galloway identified Smoot to the jury at his trial. Erica Robinson, manager of the store, testified similarly.

¶ 4. Smoot was indicted and tried for armed robbery. The theory of Smoot’s defense was that he may have committed robbery, but not armed robbery. The jury agreed, having been instructed on both offenses, with robbery as a lesser-included offense of armed robbery, and found him guilty of robbery. An appeal was properly perfected.

¶ 5. Smoot’s counsel thereafter filed a brief pursuant to Lindsey v. State, 939 So.2d 743, 748 (¶18) (Miss.2005), and mailed a copy to Smoot, informing him of his right to file his own pro se brief, if he so desired. He has filed nothing. After thoroughly reviewing the record, we found no potential issues. Therefore, we affirm Smoot’s conviction and sentence.

DISCUSSION

¶ 6. In Lindsey, the Mississippi Supreme Court set out the procedure to be followed when a defendant’s attorney does not find any arguable issues to support an appeal. Lindsey, 939 So.2d at 748 (¶ 18). It is the appellate counsel’s responsibility to file a brief showing that counsel has thoroughly reviewed the record and has found nothing to support an appeal. The counsel must then send his client a copy of the brief, informing his client that he found no arguable issue for an appeal, and he must advise the client of his right to file a pro se brief. Id. If the defendant raises any arguable issue in his pro se brief, or if the appellate court finds any arguable issue upon its independent review of the record, the appellate court must, if circumstances warrant, require counsel to file supplemental briefing on the issue. Id.

¶ 7. Smoot’s attorney filed a brief indicating that he diligently searched the procedural and factual history of this action and scoured the record for any arguable issues that could be presented in good faith, but he found none. Smoot’s attorney asserts that he examined: (1) the reason for Smooth’s arrest and the circumstances surrounding the arrest; (2) any possible violations of Smooth’s right to counsel; (3) the entire trial transcript; (4) all rulings of the trial court; (5) possible procedural misconduct; (6) all jury instructions; (7) all exhibits, whether admitted into evidence or not; (8) possible misrepresentation of the law in sentencing; (9) the indictment and all the pleadings in the record; (10) any possible ineffeetive-assistance-of-counsel issues; and (11) other possible reviewable issues.

¶ 8. Smoot’s attorney also confirmed that he sent a copy of the brief to Smoot and informed Smoot of his right to file a pro se brief. Smoot did not file a pro se brief. And we do not find the circumstances warrant supplemental briefing on any issue. Therefore, all that remains is our consideration of Smoot’s case on the merits.

¶ 9. After an independent review of the record, we agree with Smoot’s counsel that no reversible error occurred. The indictment properly notified Smoot of the armed-robbery charge. See Miss.Code Ann. § 97-3-79 (Rev.2006). The jury received instructions for both armed robbery and simple robbery and found Smoot guilty of simple robbery. The jury’s guilty verdict was not against the overwhelming weight of the evidence and was supported by sufficient evidence. Additionally, Smoot’s fifteen-year sentence falls within the statutory minimum and maximum. See id.

¶ 10. We affirm Smoot’s conviction .and sentence.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF ROBBERY AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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


author: BRYAN, Justice.

text:
    GUARDIAN BUILDERS, LLC, and Wayne Tackett v. Randy USELTON and Melissa Uselton.
    1111375.
    Supreme Court of Alabama.
    May 31, 2013.
    Gary K. Grace and Bree Taylor Wilb-ourn of Grace, Matthews & Debro, LLC, Huntsville, for appellants.

      Melissa D. Endsley and Thomas S. McGrath of McGrath Law Firm, Huntsville, for appellees.
   BRYAN, Justice.

Guardian Builders, LLC, and Wayne Tackett (collectively “Guardian”) appeal from an order purporting to deny Guardian’s motion to vacate or modify an arbitration award entered in favor of Randy Uselton and Melissa Uselton. We vacate the order and dismiss the appeal.

In April 2010, the Useltons sued Guardian in the Madison Circuit Court, alleging several claims arising from Guardian’s construction of a house for the Usel-tons. Guardian subsequently filed a motion to compel arbitration, and the circuit court granted that motion in October 2010. On December 21, 2011, the arbitrator entered a final award in favor of the Useltons in the amount of $452,275.20. On January 11, 2012, Guardian filed with the circuit court a motion to vacate or modify the arbitration award, to which it attached a copy of the arbitration award. On May 15, 2012, the Useltons filed a “motion to confirm” the arbitration award and a response to Guardian’s motion to vacate or modify. On May 31, 2012, the circuit court entered an order purporting to deny .Guardian’s motion to vacate or modify the arbitration award, purporting to grant the Useltons’ motion to confirm the arbitration, award, and purporting to order Guardian to pay $1,421.75 in Better Business Bureau fees and facility costs related to the arbitration. Guardian appealed.

The Useltons move this Court to dismiss the appeal on the ground that Guardian failed to comply with the requirements of Rule 71B, Ala. R. Civ. P., which establishes the procedure for appealing an arbitration award to the circuit court. Rule 71B provides:

“(a) Who may appeal. Any party to an arbitration may file a notice of appeal from the award entered as a result of the arbitration.
“(b) When filed. The notice of appeal shall be filed within thirty (30) days after service of notice of the arbitration award. Failure to file within thirty (30) days shall constitute a waiver of the right to review.
“(c) Where filed. The notice of appeal shall be filed with the clerk of the circuit court where the action underlying the arbitration is pending or if no action is pending in the circuit court, then in the office of the clerk of the circuit court of the county where the award is made.
“(d) What filed. With the notice of appeal, the appellant shall file a copy of the award, signed by the arbitrator, if there is only one, or by a majority of the arbitrators, along with the submission to the arbitrator or arbitrators and any supporting documents or record of the proceedings, if available. If no record is available, the appellant shall so state. If a record is to be prepared but is not completed within the time provided in paragraph (b) of this rule, the appellant shall so state in the notice of appeal and shall file the record within thirty (30) days after the filing of the notice of appeal, unless the court for good cause shown shall allow additional time.
“(e) How served. If the arbitration arose out of a pending action, service shall be made as provided in Rule 5[, Ala. R. Civ. P.]. If there is no action pending, service shall be made as provided in Rules 4 through 4.4[, Ala. R. Civ. P.,] and upon any counsel who appeared in the arbitration for the party being served.
“(f) Procedure after filing. The clerk of the circuit court promptly shall enter the award as the final judgment of the court. Thereafter, as a condition precedent to further review by any appellate court, any party opposed to the award may file, in accordance with Rule 59, [Ala. R. Civ. P.,] a motion to set aside or vacate the judgment based upon one or more of the grounds specified in Ala. Code 1975, § 6-6-14, or other applicable law. The court shall not grant any such motion until a reasonable time after all parties are served pursuant to paragraph (e) of this rule. The disposition of any such motion is subject to civil and appellate rules applicable to orders and judgments in civil actions.
“(g) Appellate review. An appeal may be taken from the grant or denial of any Rule 59 motion challenging the award by filing a notice of appeal to the appropriate appellate court pursuant to Rule 4, [Ala. R. Civ. P.].”

Thus, Rule 71B establishes the following procedure for the appeal of an arbitration award: (1) A party must file a notice of appeal with the appropriate circuit court within 30 days after service of the notice of the arbitration award; (2) the clerk of the circuit court shall promptly enter the award as the final judgment of the circuit court; (3) the aggrieved party may file a Rule 59, Ala. R. Civ. P., motion to set aside or vacate the judgment, and such filing is a condition precedent to further review by any appellate court; (4) the circuit court grants or denies the Rule 59 motion; and (5) the aggrieved party may then appeal from the circuit court’s judgment to the appropriate appellate court.

“Pursuant to this rule, the aggrieved party has no right to appellate review of an arbitration award unless that party has appealed to the circuit court from the arbitration award within 30 days of service of the notice of the award and has timely filed a Rule 59 motion to set aside or vacate the judgment on the arbitration award as described above.”

Committee Comments to Rule 71B Effective February 1, 2009.

In this case, Guardian never filed with the circuit court a document titled a “notice of appeal.” Rather, Guardian attempted to appeal from the arbitration award by filing with the circuit court a motion to vacate or modify the arbitration award, which Guardian filed within 30 days of the entry of the award. The Useltons argue that Guardian does not have a right to appellate review because Guardian did not file a notice of appeal; instead, it filed only a motion to vacate or modify. Conversely, Guardian argues that its motion to vacate or modify the arbitration award may be construed to be both a notice of appeal and a Rule 59 motion, filed pursuant to Rule 71B.

In J.L. Loper Construction Co. v. Findout Partnership, LLP, 55 So.3d 1152 (Ala.2010), this Court addressed a similar situation. In Loper, an arbitrator entered an award in favor of Findout and adverse to Loper. Loper filed with the circuit court a motion to set aside the award. Findout subsequently moved the circuit court to confirm the award, and Loper filed a motion to enjoin Findout from attempting to collect the award. Although Loper did not file a “notice of appeal,” the circuit court treated the motions filed by Loper — the motion to set aside the award and the motion to enjoin enforcement of the award — “ ‘as an appeal of th[e] award’ ” under Rule 71B. 55 So.3d at 1157 (quoting circuit court’s order). The circuit court ordered the clerk of the circuit court to enter the arbitration award as the judgment of that court in accordance with Rule 71B(f). The circuit court then considered Loper’s motion to set aside, i.e., its Rule 59 motion, and granted that motion. Findout appealed to this Court.

In Loper, this Court did not conclude that Loper’s failure to file a separate document titled a “notice of appeal,” in addition to the two motions filed by Loper, precluded further appellate review. Instead, it noted that the circuit court had considered Loper’s motions challenging the arbitration award as a notice of appeal of the award. This Court then reviewed the merits of the circuit court’s judgment setting aside the arbitration award and reversed that judgment. Thus, based on Loper, the circuit court in this case could have treated Guardian’s motion to vacate or modify as a notice of appeal. Guardian attached to that motion a copy of the arbitration award and served a copy of the motion on the Useltons; that motion provided notice that Guardian was appealing the award. We construe Guardian’s motion as a notice of appeal in this case; however, we emphasize that, to avoid potential confusion, a party desiring appellate review of an arbitration award should follow the explicit procedure for appealing established by Rule 71B.

Although we construe Guardian’s motion to vacate or modify the arbitration award as a notice of appeal, we must address additional issues concerning the procedure for appealing an arbitration award used in this case. Most importantly, after Guardian appealed to the circuit court, i.e., after it filed its motion to vacate or modify the award, there is no indication that the clerk of the circuit court entered the arbitration award as the judgment of that court as required by Rule 71B(f). That rule provides that “[t]he clerk of the circuit court promptly shall enter the award as the final judgment of the court” after the filing of the notice of appeal in that court. Rule 71B, which became effective on February 1, 2009, superseded the procedure established by § 6-6-15, Ala.Code 1975. Committee Comments to Rule 71B Effective February 1, 2009 (“[Rule 71B] clarifies the method for taking an appeal from an arbitration award and supersedes the procedure provided by Ala.Code 1975, § 6-6-15.”); and Parham v. American Bankers Ins. Co. of Florida, 24 So.3d 1102, 1104 n. 2 (Ala.2009). Although Rule 71B superseded the procedure established by § 6-6-15, the two procedures are similar in some respects; that similarity informs our discussion on the effect of the noncompliance with Rule 71B(f) in this case.

Under § 6-6-15, a party initiated an appeal from an arbitration award by filing a notice of appeal in the circuit court. See generally Horton Homes, Inc. v. Shaner, 999 So.2d 462, 467 (Ala.2008) (clarifying and modifying the procedure for appealing an arbitration award under § 6-6-15). Like the current procedure under Rule 71B(f), under § 6-6-15 the clerk of the circuit court was required to enter the arbitration award as the judgment of the circuit court. Under § 6-6-15, as under Rule 71B(f), the aggrieved party could then file a Rule 59 motion asking the circuit court to set aside or to vacate the judgment.

Under the procedure established by § 6-6-15, it was essential that the circuit court enter the arbitration award as the judgment of the circuit court. That point was illustrated in Parham v. American Bankers Insurance Co. of Florida, supra. In Parham, American Bankers sought review of an arbitration award in the circuit court. However, the clerk had not entered the award as the judgment of the circuit court. The circuit court later entered an order purporting to grant American Bankers’ motion to vacate the award. On appeal, this Court vacated the circuit court’s order and dismissed the appeal, concluding:

“We find no indication in the record that the clerk of the Shelby Circuit Court entered the arbitrator’s order as the judgment of that court as required under § 6-6-15, Ala.Code 1975; thus, there is no final judgment from which Parham can appeal. Accordingly, the trial court’s ... order [purporting to grant the motion to vacate the award] is void and is hereby vacated, and this appeal is dismissed. See Harvey v. City of Oneonta, 715 So.2d 779, 781 (Ala.1998) (‘A judgment of a court without jurisdiction is void. An appeal will not lie from a void judgment.’ (citing, among other eases, Luken v. BancBoston Mortgage Corp., 580 So.2d 578 (Ala.1991))).”

Parham, 24 So.3d at 1104. See also Jenks v. Harris, 990 So.2d 878, 882 (Ala.2008) (stating that, under § 6-6-15, a circuit court’s order purporting to set aside an arbitration award was void because the circuit clerk had not first entered the award as the judgment of the court).

Like § 6-6-15, Rule 71B(f) requires the clerk of the circuit court to first enter the arbitration award as the judgment of that court before the circuit court may act on a motion to set aside the award. In this case, there is no indication that the clerk entered the arbitration award as the judgment of the circuit court. Thus, the circuit court’s order purporting to deny Guardian’s motion to vacate or modify the arbitration award is void. Parham and Jenks. Accordingly, we vacate the order and dismiss the appeal.

We note that, after Guardian filed its motion to vacate or modify the arbitration award, which we have construed as a notice of appeal, the Useltons filed a “motion to confirm” the award. In its order purporting to deny Guardian’s motion to vacate or modify the award, the circuit court also purported to grant the Useltons’ motion to confirm the award, purporting to enter a judgment on the award “for which execution may issue.” Although it is unclear, it appears that the Useltons sought to invoke Rule 71C, Ala. R. Civ. P., in seeking an entry of a judgment by filing their motion to confirm the award. Rule 71C provides, in pertinent part:

“(a) Who may enforce. Any party to an arbitration may seek enforcement of the award entered as a result of the arbitration.
“(b) When filed. If no appeal has been filed pursuant to Rule 71B within thirty (30) days of service of the notice of the award, thereby resulting in a waiver of the right to review, the party seeking enforcement of the award may at any time thereafter seek enforcement of the award in the appropriate circuit court as set forth in paragraph (c) of this rule.
“(c) Where filed. The motion for entry of judgment shall be filed with the clerk of the circuit court where the action underlying the arbitration is pending or if no action is pending in the circuit court, then in the office of the clerk of the circuit court of the county where the award is made.
“(f) Procedure after filing. The clerk promptly shall enter the award as the final judgment of the court. After service pursuant to paragraph (e) of this rule, the prevailing party may seek execution on the judgment as in any other case.”

(Emphasis added.)

Rule 71C provides for the entry of a judgment on an arbitration award when an appeal has not been filed from that award pursuant to Rule 71B. However, in this case, Guardian did initiate an appeal of the arbitration award under Rule 71B by filing in the circuit court its motion to vacate or modify the award. Thus, Rule 71C could not have been employed to enter a judgment on that award. Accordingly, the circuit court did not have the authority to “confirm” the award by entering a judgment on the award pursuant to Rule 71C. The circuit court also awarded Better Business Bureau fees and facility costs to the Useltons in connection with the entry of the award; it follows that the circuit court lacked the authority to award those fees and costs as well.

In summary, we construe Guardian’s motion to vacate or modify the arbitration award of December 21, 2011, as a notice of appeal under Rule 71B, thus effectuating the appeal of the award to the circuit court. However, because the clerk of the circuit court never entered the award as the judgment of that court, the circuit court’s order of May 31, 2012, purporting to deny Guardian’s motion to vacate or modify is void. Essentially, Guardian’s appeal remains pending in the circuit court, awaiting further procedures under Rule 71B. Further, because Guardian has appealed from the arbitration award under Rule 71B, that award could not be entered as the judgment of the court under 71C. Thus, the circuit court lacked authority to enter a judgment on the award under Rule 71C and to award Better Business Bureau fees and facility costs in connection with the entry of that judgment. We vacate the circuit court’s May 31, 2012, order, and we dismiss the appeal.

ORDER VACATED; APPEAL DISMISSED.

STUART, BOLIN, PARKER, MURDOCK, SHAW, MAIN, and WISE, JJ., concur.

MOORE, C.J., concurs in the result.

      . Furthermore, we note that Rule 71C(f) directs the clerk of the circuit court to enter an award as the judgment of the circuit court, which was not done in this case.