author: IRVING, P.J.,

text:
    Wilson YOUNG, Appellant v. Thomas J. O’BEIRNE, Administrator of the Estate of Gloria Young, Deceased, Appellee.
    No. 2013-CP-00229-COA.
    Court of Appeals of Mississippi.
    June 3, 2014.
    Rehearing Denied Sept. 23, 2014.

      Wilson Young, appellant, pro se.
    Thomas M. McNeely Jr., Natchez, attorney for appellee.
    Before IRVING, P.J., BARNES and FAIR, JJ.
   IRVING, P.J.,

for the court:

¶ 1. The appeal arises from the Adams County Chancery Court’s judgment, ordering the partition of real property owned by Wilson Young and the estate of Gloria Young, closing the estate, and denying all of Young’s post-judgment motions. Feeling aggrieved, Young, acting pro se, appeals and presents the following issues, which we have recast for clarity: (1) the court erred in denying Young an interest in the estate; (2) the court erred in denying Young’s right to his personal property; (3) the court erred in denying Young’s motion requesting that Chancellor McGe-hee recuse from the case; (4) the court erred in not finding that Thomas, the chancery court clerk, and Peggy Stricklin, the chancery court reporter, were concealing documents and transcripts; (5) the court erred in denying Young’s right to send a delegate to the docket calls where trial dates were established; (6) the court erred in approving the final accounting, as the final accounting was defective; (7) the court erred in finding that Young’s liability claims against Gloria’s estate were time-barred; (8) the court erred in denying Young’s pretrial pleadings; (9) the court erred in attaching a lien to Young’s interest in the estate; (10) the court erred in refusing to correct certain trial transcripts; (11) the court failed to properly find the facts; (12) the court erred in entering an order, sua sponte; (13) the court erred in making only a general reference to credits granted to Young; (14) the court erred in its interpretation of Young’s statements regarding the partition; and (15) the court abused its judicial discretion.

¶ 2. Issues eight through fifteen are merely accusatory statements, and Young does not cite any law or facts to support these accusatory assertions. Therefore, we decline to address those issues. As to his remaining issues, we find no error. Consequently, we affirm the judgment of the chancery court.

FACTS

¶ 3. On June 21, 1988, the chancery court granted Young and his wife, Gloria, a divorce. In the judgment of divorce, the chancellor awarded Gloria the use and possession of the marital home that she and Young owned as joint tenants with the right of survivorship. The chancellor also ordered Young to pay child support for the parties’ three minor children: Tiffany, Tamika, and Tabatha. Gloria continued to live in the home following the divorce until March 11, 1990, when she was murdered by Young.

¶ 4. Gloria died intestate, owning various items of personal property, along with the previously described interest in the marital home. The chancery court appointed O’Beime administrator of Gloria’s estate. On June 18, 1990, O’Beirne issued a notice to creditors of the estate. Young did not file a claim against the estate within the ninety-day period following publication of the notice.

¶ 5. Nearly seven years after the publication of the notice to creditors, O’Beirne and Young’s three children (the plaintiffs) filed a complaint against Young for contempt, back child support, cancellation of the survivorship clause in the deed, and imposition of a lien against Young’s interest in the marital home. The complaint specifically alleged that Young had made no child-support payments prior to or during his incarceration and that a lien should be placed on his interest in the home. The complaint also asked that Young not be allowed to receive title to the home pursuant to the “survivorship clause” in the deed and that he should be required to “relinquish complete control and possession” of the home. Young answered the complaint, alleging that the plaintiffs were not entitled to any of the relief and that the complaint should be dismissed.

¶6. The plaintiffs filed a motion for summary judgment. Young filed an answer to the summary-judgment motion, alleging that he was unable to pay the child support due to his incarceration, that he was still entitled to his one-half interest in the home and should be compensated for his interest, and that there was a contract between him and Gloria regarding the real property, all of which established a genuine issue of material fact. After a hearing, the chancery court granted a partial summary judgment, holding that Young was barred from receiving Gloria’s one-half undivided interest in the jointly owned marital domicile. The chancellor ordered that Gloria’s interest would pass to the Youngs’ three children and granted exclusive use and possession of the property to the three children and Rice, their temporary custodian. All remaining issues were continued to a later date.

¶ 7. On February 26, 1998, the chancery court entered a judgment finding that Young’s child-support arrearage totaled $17,867, plus interest. On July 8, 1998, the court entered an order, at O’Beirne’s request, permitting O’Beirne to offer the home for rent and to deposit the money collected from the rent into the estate’s bank account.

¶ 8. On June 25, 2002, O’Beirne petitioned for approval of the first accounting of the estate. The petition also stated that personal property owned by the estate had been sold, and that the proceeds from the sale had been deposited into the estate’s bank account. The court approved the accounting. In the judgment approving the accounting, the court granted a lien against Young’s one-half interest in the home for the $17,867 child-support arrear-age.

¶ 9. Young filed a complaint objecting to the order approving the first accounting of the estate, and moving the court to vacate the order. Specifically, Young argued that he had received a copy of the order approving the first accounting, but was not served with a copy of the petition for approval of the accounting and, therefore, was unable to make a timely objection. Additionally, he argued that the court never ordered that a lien be placed on his one-half interest in the home and that the personal property that he received in the divorce decree had been wrongfully sold by the plaintiffs’ attorney. Young also requested that the court require O’Beirne to produce several documents, listed in Young’s complaint, and to answer the interrogatories attached to Young’s complaint in opposition to the first accounting. O’Beirne filed an answer to Young’s objection to the approval of the first accounting, stating that Young had no standing to object and that his objection should be dismissed. O’Beirne also stated that the “court[’s] docket- and [the] courtfs] orders are all open to the public and available to [Young],” that he should not have to respond to Young’s discovery requests, and that the court should grant O’Beirne a restraining order against Young.

¶ 10. The next development in this case was a partition petition filed by the plaintiffs, seeking a partition of the house and lot. The plaintiffs asked that Young’s one-half interest in the property be conveyed to his children as a credit against the child-support arrearage after all attorney’s and administrator’s fees had been either paid or credited. Young filed an answer, stating that the court had not ruled on his objection to the first accounting, rendering the plaintiffs’ petition for partition “premature and obsolete.” The plaintiffs moved for a partial summary judgment on their petition, asking that the court, among other things, dismiss Young’s objection to the first accounting or hold a separate trial on the issue, and dismiss Young’s personal-property claim. Young filed an answer to the plaintiffs’ motion for partial summary judgment, arguing that the motion for partial summary judgment was “premature and obsolete.”

¶ 11. On June 23, 2003, O’Beirne filed a petition for approval of the second accounting of Gloria’s estate and sent a copy of the petition to Young. Young filed an answer to the petition, asking the court to reject the petition. On March 3, 2010, O’Beirne filed a petition for approval of the third accounting, and Young filed a petition asking the court to dismiss O’Beirne’s petition. Also, at some point in 2010, Young filed a motion requesting that Chancellor McGehee recuse from the case. Chancellor McGehee denied Young’s request.

¶ 12. On April 4, 2011, O’Beirne filed a petition for a final accounting, requesting approval of all accountings and requesting that the court close the estate. On June 27, 2011, the court held a final hearing on the matter of the partition of the real property, informing Young that there was “no need in [Young] getting involved in the accounting to the estate in general,” as he only had an interest in the real property. During the hearing, Young acknowledged that, other than a pool table, which he admitted was worthless, none of his personal property was in the house. Young affirmed that he did not oppose the partition. The court stated that any pleading that Young had filed regarding Young’s personal property and all objections that Young had filed to the various accountings of the estate were denied. The court issued a judgment following the hearing, finding that Young had no interest in the estate, and that Young had confirmed this by admission. The court denied Young’s claims that sought to hold the estate or anyone working for the estate liable for any personal property that Young received from the divorce. The court also approved the sale of the real property and held that all objections to the sale and distribution had either been withdrawn or were overruled.

¶ 13. On June 28, 2011, O’Beirne moved the court to issue an order compelling Young to cease and desist in his filings of pleadings and letters regarding issues concerning the estate, more particularly, his requests for documents. On August 18, 2011, Young sent a letter to Stricklin, requesting transcripts of the hearing held on June 27, 2011.

¶ 14. On August 29, 2011, the court entered a judgment closing the estate; reaffirming its order approving the first accounting of the estate; and approving the second, third, and final accountings of the estate. On the same day, Young filed a pleading denoted as a “notice of motion” in which he requested the court to rule on motions filed prior to the June 27, 2011 hearing. He also filed a motion for an order to release transcripts of previous hearings. Chancellor McGehee sent a letter to both Young and Thomas M. McNeely, the plaintiffs’ attorney, stating that he had advised the court reporter and other court personnel to provide transcripts to anyone that requests them, including Young, that the clerk had provided Young all other documents that he had requested thus far, and that he knew of no requirement upon the clerk or other personnel to provide Young with documents that did not exist in the record or make transcripts at the request of Young when no actual transcription had been made.

¶ 15. On September 8, 2011, Young filed a motion for relief from the judgments ordering the partition of the real property and closing the estate. On November 18, 2011, the court issued an order denying Young’s plethora of post-judgment motions, and further stated that all of Young’s other pending motions “have been and/or are hereby denied.” The court also stated that the ruling was a final one on all post-trial motions so as to position the matter for appeal if either party had any appealable issues. On November 30, 2011, Young filed a request for leave to proceed in forma pauperis on appeal.

¶ 16. On December 6, 2011, the court issued an order with an attached letter opinion, stating that all of Young’s pending post-judgment motions had been fully considered by the court and denied. The court stated that Young would continue to have the benefit of his in forma pauperis status. Young filed a motion for findings by the court, asking for legal clarity of the court’s December 6, 2011 order. On December 22, 2011, the court issued its findings of fact and conclusions of law, stating, among other things, that

Young’s only interest in this matter was an interest as [a] tenant[] in common with the Estate in a parcel of real property. The fact that Young had a common interest with the Estate in a tract of real property does not/did not grant him any interest whatsoever in the Estate of Gloria Jean Rice Young.

The order also stated that Young agreed with the partition of the real estate and that his interest was credited to him relative to the outstanding judgment for back child support, which Young agreed with. The court further stated that any personal-property claims asserted by Young more than twenty-one years after the divorce decree were related to the separate divorce action, and not the action involving the administration of Gloria’s estate.

¶ 17. On October 15, 2012, Young, again, sent a request for documents to O’Beirne, and O’Beirne sent Young all of the documents requested. On December 6, 2012, Young filed a complaint for contempt and request for relief against O’Beirne and Stricklin, claiming that O’Beirne was concealing documents and that Stricklin never responded to his request for trial transcripts. Stricklin wrote a letter to Young after receiving notice of his complaint, explaining that, contrary to Young’s belief, she had not served as court reporter for the trial on June 27, 2011, because she was working on another case for another judge in Natchez on that day. Stricklin filed an answer to the complaint, stating that she did receive a letter from Young requesting transcripts from the June 27, 2011 trial, but no response was required, as she did not work as court reporter on that date. O’Beirne also filed an answer to Young’s complaint, denying that he concealed transcripts from Young and claiming that the court lacked jurisdiction to hear Young’s complaint, as it was filed sixteen months after the judgments closing the estate and partitioning the real property, and eleven months after the court issued its findings of facts and conclusions of law.

¶ 18. On January 10, 2013, Young filed another motion requesting that Chancellor McGehee recuse from the case. He reasoned that Chancellor McGehee should not have conducted a hearing in Young’s absence, since, in prior proceedings, Young had been allowed to make an appearance via telephone. Young also alleged that Chancellor McGehee was once Gloria’s attorney.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 20. We will not disturb the findings of a chancellor unless they are manifestly wrong, clearly erroneous, or emanate from the application of an improper legal standard. Robinson v. Burton, 49 So.3d 660, 663 (¶ 9) (Miss.Ct.App.2010) (citing Wallace v. Wallace, 12 So.3d 572, 575 (¶ 12) (Miss.Ct.App.2009)). “[W]e are restrained from substituting our own judgment for that of the chancellor, even if we disagree with his or her findings of fact and would arrive at a different conclusion.” Id. (citing Coggin v. Coggin, 837 So.2d 772, 774 (¶ 3) (Miss.Ct.App.2003)).

I.Young’s Interest in the Estate

¶ 21. Young claims that the chancellor erred in finding that Young had no interest in the estate other than the issue of partition of the real property. As stated, the chancellor cited section 91-5-33 to support his finding. However, section 91-5-33 is inapplicable to the facts here, as Gloria did not have a will, testament, or codicil at the time of her death. The statute applicable to these facts is Mississippi Code Annotated section 91-1-25 (Rev.2013), which provides that “[i]f any person wilfully cause[s] or procure[s] the death of another in any way, he shall not inherit the property, real or personal, of such other; but the same shall descend as if the person so causing or procuring the death had predeceased the person whose death he perpetrated.” It is undisputed that Young murdered Gloria. Therefore, pursuant to section 91-1-25, Young cannot have any interest in Gloria’s estate. The chancellor did not err in his findings here. Therefore, this issue is without merit.

II. Interest in Personal Property

¶ 22. Young argues that O’Beirne and McNeely lost or converted his personal property that was left in the marital home. However, Young provides no proof to support his allegations. Chancellor McGehee ruled that any claims involving personal property should have been handled within the divorce action, separate from this action. The chancellor also stated:

It would not have been the responsibility of the administrator as the duties of that office do not include the care and preservation of personal property belonging to strangers. Further, even if there was, is[,] or could be some merit to those claims, the matter at issue is of little or no nominal value.

We agree, as the evidence reveals that the only personal property in the home that belonged to Young was a pool table that he did not want because he claimed it was worthless. This issue is without merit.

III. Chancellor McGehee’s Refusal to Recuse

¶ 23. Young initially requested that Chancellor McGehee recuse from this case in 2010. Young accused Chancellor McGehee of once representing Gloria as her attorney, creating a conflict of interest. Article 6, Section 165 of the Mississippi Constitution of 1890 provides that “[n]o judge of any court shall preside on the trial of any cause, where the parties or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties.” At the June 25, 2010 hearing, Chancellor McGehee asserted that he was “pretty sure” that he never even knew Gloria and had never represented her. Chancellor McGehee stated that he had even consulted with prior secretaries to confirm this. Chancellor McGehee further stated that even if he had known or represented Gloria, she was not a party to the present action.

¶24. Young also alleges that Chancellor McGehee’s presiding over the case caused prejudice to him because of the chancellor’s unfamiliarity with the essential facts of the case, in violation of Rule 68 of the Mississippi Rules of Civil Procedure. Rule 63 provides:

If for any reason the judge before whom the action has been commenced is unable to proceed with the trial, another judge regularly sitting in or assigned under law to the court in which the action is pending may proceed with and finish the trial upon certifying in the record that he has familiarized himself with the record of the trial; but if such other judge is satisfied that he cannot adequately familiarize himself with the record, he may in his discretion grant a new trial.

To support his assertion, Young points to a single sentence in Chancellor McGehee’s November 18, 2011 order, which reads: “The very first hearing in this matter, due to the court’s unfamiliarity with the past procedure!,] was held in Mr. Young’s absence!,] but not without notice.” This statement itself does not indicate that Chancellor McGehee was' unfamiliar with the essential facts of the case, only that Chancellor McGehee was not initially aware that Young had been present via telephone for proceedings in which the court set the trial dates. We cannot find that the chancellor erred in denying Young’s request for recusal. This issue is without merit.

IV. Concealment of Documents

¶ 25. Young argues that O’Beirne and Stricklin purposely concealed documents and transcripts, causing extreme prejudice to him. Young argues that O’Beirne and Stricklin’s alleged concealment violates his Fourteenth Amendment right and denies him access to documentation that would aid in his defense. However, Young cites no specific documents that O’Beirne and Stricklin allegedly concealed other than the June 27, 2011 hearing transcripts. Additionally, he does not provide any proof of deliberate concealment of the transcripts. Stricklin informed Young that she did not serve as court reporter on the day of the June 27, 2011 hearing. Also, although Young did not receive the hearing transcripts before he filed the complaint against O’Beirne and Stricklin, he did receive the transcripts from O’Beirne on February 6, 2013. Accordingly, this issue is without merit.

V. Lack of Representation at Docket Call

¶ 26. Young claims that the chancellor violated Rule 40 of the Mississippi Rules of Civil Procedure by denying Young the right to “send a delegate to the setting of all trial dates.” Rule 40 governs the methods by which the court assigns cases for trial and provides notice to the parties. Although Rule 40 requires the clerk to give notice to “all attorneys and parties without attorneys having cases upon the trial calendar of the time, place, and date when the docket shall be set,” it does not require that parties without attorneys be allowed to send a non-lawyer delegate to the docket call. While, but for his incarceration, Young could have represented himself at the docket call, our law does not allow non-lawyers to represent others. Consequently, Young’s claim that the chancellor violated Rule 40 is without merit. Further, it is clear that Young did not suffer any permanent prejudice as a result of not being notified of the hearing where the first accounting was approved since his challenge to the approval of the first accounting was later considered and rejected by the chancellor.

VI. Denial of Motion to Dismiss the Annual and Final Accountings

¶ 27. Young argues that his oral motion to dismiss the accountings of the estate renders the accountings void in their entirety, and makes the partition of the estate void for want of an accurate accounting. Young further claims that McNeely illegally questioned Tabatha pursuant to Rule 8.03 of the Uniform Rules of Chancery Court, and concealed her testimony. However, he offers no proof of his assertions, nor does he explain how Rule 8.03 applies to the testimony in the transcripts that he references and how McNeely illegally questioned Tabatha. Consequently, this issue is without merit.

VII. The Time-Bar

¶ 28. Young insists that the chancellor erred in finding that he was time-barred from making liability claims against the estate. Specifically, Young argues that O’Beirne and McNeely converted and lost his personal property, a violation of his Fourteenth Amendment rights. However, the chancellor never held that Young was time-barred from pursuing his personal-property claims. The chancellor merely pointed out that those claims should have been brought under the divorce action— which was initiated over twenty years ago — as the personal property that Young claims was lost or converted is what he received as a result of the divorce decree. Young cites Rule 1.15(c) of the Mississippi Rules of Professional Conduct, which states that

[w]hen a lawyer is in possession of property in which both the lawyer and another person claim an interest, the property shall be kept separate by the lawyer until completion of the accounting and severance of their respective interests. If a dispute arises concerning the respective interests, the lawyer shall disburse the portion not in dispute, and keep separate the portion in dispute until the dispute is resolved.

Rule 1.15(c) is inapplicable here, as this is not a scenario where both Young and a lawyer claimed an interest in property that was in the possession of the lawyer. Young also cites Rule 6.03 of the Uniform Chancery Court Rules, which provides the specifics of what must be attached to each annual account filed by the fiduciary. While it is not clear how Young thinks this rule impacts the time-bar, it appears that he may be contending that the accounting filed by O’Beirne did not comply with this rule and that this failure tolled the ninety-day period for filing a claim against the estate. However, he cites no authority in support of this argument. Therefore, we are not obligated to address it. Dampier v. State, 973 So.2d 221, 229-30 (¶ 20) (Miss. 2008). Nevertheless, it seems reasonably clear that nothing in the rule relates to a tolling of the ninety-day period in which to file a claim against a deceased’s estate. This issue is without merit.

¶ 29. THE JUDGMENT OF THE ADAMS COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ADAMS COUNTY.

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

      . Young was convicted of Gloria's murder and sentenced to life imprisonment. This Court affirmed his conviction and life sentence. Young v. State, 662 So.2d 204 (Miss.Ct.App.1995).

      . Mississippi Code Annotated section 91-7-145 (Rev.2013) provides that a creditor’s
      "failure to probate and register [his claim] within ninety (90) days after the publication of such notice will bar the claim."

      .Sammy Rice, Gloria’s uncle, served as the children’s next friend.

      . To support his reasoning, the chancellor cited Mississippi Code Annotated section 91-5-33 (Rev.2013), which provides, in pertinent part:
      If any person shall wilfully cause or procure the death of another in any manner, he shall not take the property, or any part thereof, real or personal, of such other under any will, testament, or codicil. Any devise to such person shall be void and, as to the property so devised, the decedent shall be deemed to have died intestate.

      . In November 2010, the house sold for $25,000. Young's one-half interest in the net proceeds was divided equally between his three daughters in partial satisfaction of the child-support judgment.

      . Although not formally entitled "Notice of Appeal,” Young's request has been filed and treated as such by this Court’s clerk.

      . Chancellor McGehee was appointed as a special chancellor to hear the case after both chancellors in the district recused. One of the chancellors presided for some time before recusing.


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    Wilson KRUEGER, III a/k/a Wilson M. Krueger a/k/a Wilson Matt Krueger a/k/a Wilson Matthew Krueger, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KM-00499-COA.
    Court of Appeals of Mississippi.
    June 17, 2014.
    Rehearing Denied Sept. 23, 2014.
    Jared Keith Tomlinson, Kevin Dale Camp, Jackson, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

¶ 1. Wilson Krueger III was found guilty in the Scott County Circuit Court of driving under the influence, first offense. Krueger appeals, arguing that the circuit court erred in failing to sustain his motion for a directed verdict, as well as rendering a verdict not supported by the evidence. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 26, 2012, Officer Ron Phillips, along with other officers, set up a safety checkpoint in Coal Bluff Park in Scott County, Mississippi, to check for driver’s licenses, seat belts, and drunk driving. Krueger and his wife drove through the checkpoint around 9:20 p.m. after being on the lake at the park since 2:00 p.m. When Officer Phillips approached Krueger’s car to ask for his driver’s license, Krueger’s speech was slurred, and Officer Phillips asked Krueger to exit the car. Officer Phillips then smelled alcohol on Krueger’s breath. When Officer Phillips asked Krueger how much he had to drink, Krueger responded: “Four or five beers, with the last one being about thirty minutes ago.” Officer Phillips also asked Krueger how intoxicated he was on a scale of one to ten, ten being the most intoxicated. Krueger answered that he was at about five.

¶ 3. Officer Phillips decided to give Krueger a mixture of common knowledge and standardized field sobriety tests, including: reciting the alphabet from “G” to “N,” a thumb-to-finger count, the one-leg-stand test, the walk-and-turn test, and finally the portable breath test. Krueger started the alphabet recitation with “E” instead of beginning with “G” as instructed. Krueger completed the thumb-to-finger task correctly. Krueger failed the one-leg-stand test, even though he claimed the exercise hurt his back, and he could therefore not perform this task. Krueger also failed the walk-and-turn test. Officer Phillips then offered Krueger the portable breath test, which was positive. Officer Phillips then asked Krueger to take the intoxilyzer breath test, which Krueger refused after reading the warnings and consequences for taking or refusing the intoxi-lyzer test. Officer Phillips cited Krueger with DUI refusal and common law DUI under Mississippi Code Annotated section 63-ll-30(l)(a) (Rev.2013).

¶ 4. Krueger was found guilty of driving under the influence (DUI), first offense, in the Justice Court of Scott County. Krueger timely filed his notice of appeal, and the matter went to trial before the Circuit Court of Scott County, where he was also found guilty and sentenced to pay a $635.50 fíne. The court also sentenced Krueger to forty-eight hours of jail time; however, the court suspended the jail time conditioned upon Krueger completing the Mississippi Alcohol Safety Education Program.

¶ 5. Krueger now appeals to this Court, asserting the State failed to present sufficient evidence to establish beyond a reasonable doubt the requisite elements of the crime charged. Krueger contends that in light of such error, the circuit court erred in denying his motion for a directed verdict, as well as in rendering a verdict that was not supported by the evidence. Finding no error, we affirm.

STANDARD OF REVIEW

¶6. The “findings of fact by a circuit court judge, sitting without a jury, will not be reversed on appeal where they are supported by substantial, credible, and reasonable evidence.” Phillips v. Miss. Dep’t of Pub. Safety, 978 So.2d 656, 660 (¶ 13) (Miss.2008).

DISCUSSION

¶ 7. Krueger was convicted of driving or operating a motor vehicle while under the influence of intoxicating liquor. The controlling statute is section 63-11-30(l)(a), which reads in pertinent part as follows: “It is unlawful for any person to drive or otherwise operate a vehicle within this state who ... is under the influence of intoxicating liquor[.]” Mississippi Code Annotated section 63-11-41 (Rev.2013) reads as follows: “If a person under arrest refuses to submit to a chemical test under the provisions of this chapter, evidence of refusal shall be admissible in any criminal action under this chapter.”

¶ 8. The circuit court made findings of fact seeking to determine if Krueger was operating a motor vehicle while under the influence of intoxicating liquor. The circuit court had before it evidence that Krueger slurred his words, smelled of alcohol, admitted to consuming four or five beers, said that on a scale of one to ten for intoxication he was a five, failed to stay on the line in the walk-the-line test, failed to walk heel-to-toe, turned the wrong way, and began his alphabet recital with “E” instead of the requested “G.”

¶ 9. In Deloach v. City of Starkville, 911 So.2d 1014 (Miss.Ct.App.2005), this Court upheld Deloach’s conviction of common-law DUI, which was based solely on the officer’s testimony, the field sobriety tests Deloach performed, and Deloach’s statement to the police. Id. at 106-17 (¶ 11). The intoxilyzer test results were thrown out. Id. at 1015 (¶ 5). The officer in Deloach, Officer Johnson, testified that he detected the smell of alcohol on Deloach after pulling Deloach over for careless driving. Id. at 1016 (¶ 11). Officer Johnson then asked Deloach to exit the car to perform some field sobriety tests, which included the walk-and-turn test and the one-leg-stand test. Id. at 1015 (¶ 3). The defendant gave an improper turn while performing the walk-and-turn test and failed to walk heel-to-toe. Id. Deloach also admitted to drinking earlier that day. Id. at (¶ 4).

¶ 10. Similar to Deloach, Officer Phillips smelled alcohol on Krueger, and Krueger failed to turn properly in the walk-and-turn test, failed to walk heel-to-toe, and failed the one-leg-stand test, among other things. Krueger also admitted to drinking earlier that day. Here, the circuit court also had evidence before it that Krueger refused to take the intoxilyzer test when it was offered to him. In Ricks v. State, 611 So.2d 212, 215-16 (Miss.1992), the Mississippi Supreme Court ruled that a defendant’s refusal to take the test is relevant and admissible evidence.

¶ 11. There is contradicting evidence about whether Krueger took the portable breath test. Officer Phillips said the test was positive, while Krueger testified the portable breath test was never offered to him. According to Officer Phillips, based on the results of the portable breath test, he asked Krueger to take the intoxilyzer breath test, which Krueger refused, even after reading the warnings and consequences for taking or refusing the intoxi-lyzer test. Regardless, under section 63-11 — 30(l)(a), the intoxilyzer test is not needed to prove intoxication. In Saucier v. City of Poplarville, 858 So.2d 933, 936 (¶ 14) (Miss.Ct.App.2003), this Court upheld a DUI conviction based on an officer’s testimony regarding the defendant’s slurred speech, glazed eyes, the smell of alcohol, and results from field sobriety tests. Like Saucier, there is ample evidence of slurred speech, the smell of alcohol, and failed field sobriety tests. Further, Krueger admitted to drinking beer, and stated he was about five on a subjective intoxication scale of one to ten.

CONCLUSION

¶ 12. We find the evidence to be substantial, reasonable, credible, and supportive of the circuit court’s finding that Krueger was operating a vehicle while under the influence, pursuant to section 63-11 — 30(l)(a); therefore, we affirm.

¶ 13. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT OF CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCE OF FORTY-EIGHT HOURS IN THE CUSTODY OF THE SHERIFF OF SCOTT COUNTY, WITH FORTY-EIGHT HOURS SUSPENDED UPON COMPLETION OF MISSISSIPPI ALCOHOL SAFETY EDUCATION PROGRAM, AND TO PAY A $635.50 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The charge of DUI refusal is not mentioned anywhere in the record. It is only mentioned in the State’s brief.


author: JAMES, J.,

text:
    Kendrick Jeroum BODY a/k/a Kendrick Jeroume Body, Appellant, v. STATE of Mississippi, Appellee.
    No. 2013-KA-00812-COA.
    Court of Appeals of Mississippi.
    Sept. 23, 2014.

      Edmund J. Phillips Jr., Newton, attorney for appellant.
    Office of the Attorney General by Melanie Thomas, attorney for appellee.
    Before LEE, C.J., ISHEE and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Kendrick Body was convicted of possession of a firearm by a convicted felon and was sentenced to eight years in the custody of the Mississippi Department of Corrections. During trial, Body made an ore tenus motion for a directed verdict, which the trial court denied. Body also filed a post-trial motion for a new trial, which the trial court denied. Body raises the following issues: whether the trial court erred in denying his motion for a directed verdict and his motion for a new trial and whether the trial court erred in denying his request for a peremptory instruction.

FACTS

¶ 2. On April 22, 2010, Newton Police Chief Harvey Curry and Investigator Michael Williams responded to a disturbance call on Oak Street in Newton, Mississippi. At trial, Williams testified that he was informed that Body was involved in the original disturbance. He further testified that once he arrived on the scene, he heard a gunshot from the woods. However, Investigator Williams’s view was obstructed, and he was unable to see who fired the shot. Investigator Williams saw an unidentified black male wearing a white t-shirt and a backpack, running. Investigator Williams and other officers immediately started a search of the wooded area across from Railroad Street, behind Pine Street and Ruffin Drive.

¶ 3. When Investigator Williams encountered Body, he was wearing a white t-shirt, sitting on the ground behind shrubbery. Investigator Williams then pulled out his taser and instructed Body to come out of the shrubbery. Investigator Williams then handcuffed him and noticed an object left behind where Body was found, and instructed another officer to retrieve it. The item discovered was a backpack that contained a Manurhin handgun. Investigator Williams testified that he identified Body as the shooter because of his white t-shirt; he could not identify the man facially.

¶ 4. At trial, Investigator Williams was the State’s only witness. Body’s only witness was his friend, Justin Evans. Evans testified that Body did not arrive until after the original disturbance, but before the gunshot occurred. After Evans and Body heard the gunshot, they started running. Evans also testified that when he was with Body, he did not see Body with a gun. Evans admitted that he was not with Body the entire time; at some point while they were running, they split. He was not with Body when the police found him.

¶ 5. Evidence of Body’s prior conviction of burglary in 2006 was admitted into evidence at trial. Body made an ore tenus motion for a directed verdict at the close of the State’s evidence, which the trial court denied. After trial, Body filed a motion for a new trial, which was also denied by the trial court. Body appeals.

DISCUSSION

I. Whether the trial judge erred in denying Body’s motion for a directed verdict and his motion for a new trial.

¶ 6. The court “reviews a trial judge’s grant or denial of a motion for [a] directed verdict de novo.” McGee v. River Region Med. Ctr., 59 So.3d 575, 578 (¶ 8) (Miss.2011). “A motion for a directed verdict considers the sufficiency of the evidence presented in the opponent’s case[-]in[-]chief, and asks if the non-moving party carried the burden of going forward; if it has not, the motion should be granted.” Wal-Mart Stores Inc. v. Littleton, 822 So.2d 1056, 1058 (¶7) (Miss.Ct.App.2002).

¶ 7. The Mississippi Supreme Court has stated: “[T]his Court considers ‘whether the evidence, as applied to the elements of a party’s case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated.’ ” Spotlite Skating Rink, Inc. v. Barnes ex rel. Barnes, 988 So.2d 364, 368 (¶ 10) (Miss.2008).

¶ 8. When reviewing a motion for a new trial, the evidence must be viewed in the light most favorable to the verdict. Gill v. State, 126 So.3d 128, 133 (¶ 13) (Miss.Ct.App.2013). “A motion for a new trial is a challenge to the weight of the evidence. A reversal is warranted only if the trial court abused its discretion in denying [the] motion[.]” Campbell v. State, 125 So.3d 46, 54-55 (¶ 23) (Miss. 2013).

¶ 9. Body argues that the firearm was not in his actual, physical possession at the time of his arrest. Body also asserts that although proximity is essential to establishing constructive possession, it is not enough to prove that the gun was within his dominion and control.

¶ 10. Mississippi Code Annotated section 97-37-5 (Supp.2013) provides:

It shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm or any bowie knife, dirk knife, butcher knife, switchblade knife, metallic knuckles, blackjack, or any muffler or silencer for any firearm unless such person has received a pardon for such felony, has received a relief from disability pursuant to Section 925(c) of Title 18 of the United States Code, or has received a certificate of rehabilitation pursuant to subsection (3) of this section.

¶ 11. The State has the burden to prove that the defendant was a convicted felon and willfully possessed a firearm. See Edwards v. State, 966 So.2d 837, 839 (¶ 8) (Miss.Ct.App.2007).

¶ 12. Possession can be actual or constructive. Evans v. State, 802 So.2d 137, 141 (¶ 12) (Miss.Ct.App.2001). “Constructive possession allows the prosecution to establish possession of contraband when the evidence of actual possession is absent. Constructive possession is established by evidence showing that the contraband was under the dominion and control of the defendant.” Johnson v. State, 42 So.3d 53, 56 (¶ 11) (Miss.Ct.App.2010). At trial, it was established that Body had constructive possession of the gun found in the backpack. Investigator Williams testified that he saw the backpack in close proximity to Body, or within arm’s length. Investigator Williams also testified that he found a gun inside the backpack found near Body.

¶ 13. Body did not testify in his defense. Evans testified that he was with Body, and they were chased by the police. While running, at some point Evans and Body separated. Evans admitted to not being with Body when he was arrested. Evans also stated that he did not see Body with a gun during the time he was with Body.

¶ 14. It is a widely accepted concept that “it is the role of the jury to evaluate the veracity of the witnesses.” Campbell, 125 So.3d at 55 (¶ 24). A jury has discretion to find a witness’s testimony credible. Evans, 802 So.2d at 142 (¶ 13). Here, the jury found Investigator Williams to be the more credible witness and returned a verdict of guilty. Accordingly, the trial court did not abuse its discretion when it denied the motion for a new trial. Accordingly, this issue is without merit.

II. Whether the trial court erred in denying the request for a peremptory instruction.

¶ 15. In his second assignment of error, Body claims that the court erred in denying a request for a peremptory instruction. However, other than the assignment of error, the issue was not discussed, nor has any authority been cited supporting Body’s supposition. Mississippi Rule of Appellate Procedure 28(a)(6) requires that the argument contain “the contentions of the appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.”

¶ 16. We have previously stated that “failure to cite any authority is a procedural bar, and a reviewing court is under no obligation to consider the assignment.” Norwood v. Miss. Dep’t of Emp’t Sec., 105 So.3d 408, 410 (¶ 5) (Miss.Ct,App.2012). Further, the appellant must support an assignment of error with legal authority. Turner v. State, 962 So.2d 691, 697 (¶ 27) (Miss.Ct.App.2007). Therefore, this issue is procedurally barred.

CONCLUSION

¶ 17. Body had constructive possession of the gun because of its close proximity to him in the backpack. The gun was under Body’s dominion and control; thus there was sufficient evidence to support the jury’s verdict. The second issue raised is procedurally barred; therefore, we affirm the judgment of the trial court.

¶ 18. THE JUDGMENT OF THE NEWTON COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NEWTON COUNTY.

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


text:
    Frederick Emanuel SCURLOCK a/k/a Frederick Scurlock a/k/a Fred Scurlock a/k/a Frederick E. Scurlock, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00844-COA.
    Court of Appeals of Mississippi.
    Sept. 23, 2014.

      Frederick Emanuel Scurlock, appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. This appeal arises from the Panola County Circuit Court’s denial of Frederick Emanuel Scurlock’s motion for post-conviction relief (PCR). On appeal, Scurlock argues that (1) the State failed to intror duce testimony from the witness who certified the documents used to prove his prior convictions; (2) the circuit court erroneously imposed a habitual-offender enhancement, and (3) the State failed to provide evidence of the alleged victim’s age.

¶ 2. Because we agree with the circuit court’s judgment denying Scurlock’s PCR motion, we affirm.

FACTS

¶ 3. On March 1, 2000, Scurlock pleaded guilty to statutory rape and was sentenced, as a habitual offender, to eight years in the custody of the Mississippi Department of Corrections and twenty-two years of post-release supervision. During his plea hearing, Scurlock stated that he understood that he was giving up his right to appeal his conviction. When asked if he willfully and unlawfully had sex with a child less than fourteen years of age, Scur-lock answered in the affirmative. Scurlock also admitted that he was over twenty-one years of age at the time of the offense, and that his mistaking the age of the victim was no defense. The circuit court, finding that Scurlock’s plea was freely and voluntarily made, accepted the plea and deferred sentencing until March 31, 2000.

¶ 4. On January 22, 2013, Scurlock filed his PCR motion, arguing that (1) the State failed to introduce testimony from the witness who certified the documents used to prove prior convictions; (2) the circuit court erroneously imposed a habitual-offender enhancement to his sentence, and (3) the State failed to provide evidence of the alleged victim’s age. The circuit court denied the motion on the grounds that it was time-barred by the applicable statute of limitations and had no merit.

DISCUSSION

¶ 5. “We review a circuit court’s denial of a PCR motion under a clearly-erroneous standard of review.” McLaurin v. State, 114 So.3d 811, 813 (¶4) (Miss.Ct.App.2013) (citation omitted). “We review questions of law de novo.” Foster v. Durr, 123 So.3d 940, 941 (¶ 5) (Miss.Ct.App.2013) (citation omitted).

¶ 6. The failure to file a PCR motion within three years after the entry of the judgment of conviction procedurally bars a defendant from filing a PCR motion. ' Miss.Code Ann. § 99-39-5(2) (Supp. 2013). See also Blount v. State, 126 So.3d 927, 931 (¶ 12) (Miss.Ct.App.2013). If the movant can demonstrate the existence of evidence that was not available at trial, an intervening higher-court decision, or being detained on an expired sentence, then the movant may be exempt from the time-bar. Id. at (¶ 13). See also Miss.Code Ann. § 99-39-5(2)(a)-(b) (Supp.2013).

¶ 7. The circuit court found that Scurlock’s PCR motion was time-barred, as he had been convicted in 2000 but did not file his PCR motion until 2013. Scur-lock claims that Bullcoming v. New Mexico, — U.S. —, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), is an intervening decision from the United States Supreme Court, requiring the State to produce the person who certified the documents used to prove his prior convictions. However, Scurlock’s argument fails, as he has not shown that under Bullcoming, self-authenticated records, of a defendant’s prior convictions, are testimonial evidence that trigger a defendant’s constitutional right to confront witnesses. Consequently, Bull-coming is not an intervening decision that allows Scurlock to escape the time-bar.

¶ 8. The Mississippi Supreme Court has held that a document is testimonial when it is created for the sole purpose of the State’s use as evidence against the defendant. Grim v. State, 102 So.3d 1073, 1078 (¶ 12) (Miss.2012). Self-authenticated records of a defendant’s prior convictions are not testimonial evidence, and do not trigger a defendant’s constitutional right to confront witnesses. Frazier v. State, 907 So.2d 985, 996 (36) (Miss.Ct.App.2005). Here, the circuit court held that the documents were not created for the purpose of trial, but were “preexisting documents and not like documents of forensic analysis conducted after the commission of the alleged crime.” We agree. Further, Scurlock has failed to prove that he meets the requirements of any other procedural-bar exemption. Accordingly, he was time-barred from filing his PCR motion.

¶ 9. Procedural bar notwithstanding, by pleading guilty, Scurlock waived the issues that he presents in this appeal. “[A] knowing and voluntary guilty plea waives certain constitutional rights, among them[,] the privilege against self-incrimination, the right to confront and cross-examine the State’s witnesses, the right to a jury trial, and the right to have the State prove each element of the offense beyond a reasonable doubt.” Joiner v. State, 61 So.3d 156, 158 (¶ 7) (Miss.2011) (citing Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989)). A defendant’s valid guilty plea also waives all nonjurisdictional defects or insufficiencies in the indictment. Id. at 159 (¶ 7). The circuit court accepted Scurlock’s guilty plea as knowing and voluntary, and after our review of the record, we agree. Therefore, the issues presented in this appeal are without merit. The circuit court did not err in denying Scur-lock’s PCR motion.

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

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

      . Bullcoming explains that an analyst's certified forensic-evidence report is testimonial in nature, as it was created for the State’s use as evidence against the defendant, and is "within the compass of the Confrontation Clause.” Bullcoming, 131 S.Ct. at 2714.


author: IRVING, P. J.,

text:
    Jay FOSTER, Appellant v. Paul KOTSAKOS, Appellee.
    No. 2013-CP-01170-COA.
    Court of Appeals of Mississippi.
    Sept. 23, 2014.

      Jay Foster, appellant, pro se.
    James (Jay) R. Foster II, attorney for appellant.
    William Carl Miller, Biloxi, attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   IRVING, P. J.,

for the Court:

¶ 1. This appeal arises from the award by the Harrison County Chancery Court of attorney’s fees in a guardianship proceeding involving injuries sustained by a minor in a car accident. Jay Foster, an attorney initially hired by the minor’s father and then fired, is appealing the chancellor’s award of the majority of the attorney’s fees to the attorney subsequently hired to represent the minor.

FACTS

¶ 2. K.K., a minor, was injured in a car wreck in December 2011. Acting on her behalf, her father, Paul Kotsakos, entered into an attorney’s-fee contract with Foster in February 2012. No guardianship proceedings were initiated for the minor and the attomey’s-fee contract was not submitted to the chancery court for approval. Dissatisfied with the progress toward settlement, the father fired Foster in July 2012, and retained Billy Miller to represent K.K.

¶ 3. At the time of Foster’s termination, he had dope very little work on the case. The file turned over to Kotsakos by Foster had only six documents in it, including the police report supplied to Foster by Kotsa-kos and some letters from a medical collection agency.

¶ 4. The tortfeasor involved in the car wreck in which K.K. was injured had only $25,000 in liability insurance coverage, while K.K. had $24,416 in medical expenses. Therefore, the main legal work consisted of getting the insurer to pay the policy limits, negotiating a reduction in medical bills, and drafting the necessary guardianship paperwork, which was all done by Miller. After Miller negotiated a reduction in medical bills, $10,067.36 was left for distribution to K.K. Miller then obtained an order from the chancellor authorizing settlement of K.K.’s claim for the negotiated amount.

¶ 5. Prior to the settlement of K.K.’s claim, Foster requested over $5,000 in attorney’s fees, which he alleged was a reduction in the $9,000 actually owed. Miller claimed that Miller was entitled to one-third of the settlement for the work that he had done.

¶ 6. The chancellor set the matter for a hearing during which he determined that Miller had done almost all of the work leading to the recovery. Thereafter, the chancellor awarded Miller one-third of the net amount received by K.K. and awarded Foster $500 on a quantum meruit basis.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 7. Foster raises several issues, none of which are dispositive of, or relevant to, the central issue: whether th'e chancery court erred in awarding attorney’s fees to Foster on a quantum meruit basis and in not honoring the contract entered into by Foster and K.K.’s father. An ancillary issue is whether the amount awarded is reasonable or consistent with the McKee factors. We discuss these issues in turn.

1. The Legality of Foster’s Contract

¶ 8. Foster argues that his attorney's-fee contract should be honored even though it involved a minor and was not approved by the chancellor. Foster’s argument ignores the fact that contracts regarding recovery for personal injury to minors are governed by Rule 6.12 of the Uniform Chancery Court Rules. Rule 6.12 requires court approval of attorney’s-fee contracts and trumps the general contract law relied upon by Foster. Specifically, Rule 6.12 provides:

Every petition by a fiduciary or attorney for the allowance of attorney’s fees for services rendered shall set forth the ... facts ... touching his compensation, and ... the nature and effect thereof. If the petition be for the allowance of fees for recovering damages for wrongful death or injury, or other claim due the estate, the petition shall show the total amount recovered, the nature and extent of the service rendered and expense incurred by the attorney.... In such cases, the amount allowed as attorney’s fees will be fixed by the Chancellor at such sum as will be reasonable compensation for the service rendered and expense incurred without being bound by any contract made with any unauthorized persons. If the parties make an agreement for a contingent fee the contract or agreement of the fiduciary with the attorney must be approved by the Chancellor.

(Emphasis added).

¶ 9. Foster did not submit his contract for approval by the chancellor prior to his being terminated by KK.’s father. Therefore, his contract was void, or at least not enforceable against the minor. This issue is without merit.

2. The Reasonableness of the Attorney’s Fees Awarded and the Application of the McKee Factors

¶ 10. In In re Estate of Baker, 31 So.3d 1285, 1288 (¶ 12) (Miss.Ct.App.2010), this Court ruled:

With regard to minors’ matters in Mississippi, principles of equity govern. In Sunnyland Contracting Co. v. Davis, 221 Miss. 744, 756, 75 So.2d 638, 639 (1954), the court stated: “Where minors are involved, the courts must necessarily determine the fees; and any contract for fees does not bind the minors.” In accordance with Sunnyland, this Court does not have to recognize the existing contingency-fee contract. Thus, only equitable principles control the division of attorney’s fees in this case.

The court in In re Estate of Baker upheld a chancellor’s division of ninety percent of fees under a contingency-fee contract to a Mississippi attorney who did most of the work and ten percent to the referring Louisiana attorney who did very little work. Id. at 1289 (¶ 14).

¶ 11. Foster asserts that the chancellor should have applied the McKee factors in determining an appropriate attorney’s fee. In McKee, the Mississippi Supreme Court held as follows in regard to the determination of attorney’s fees:

The fee depends on consideration of, in addition to the relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.

McKee, 418 So.2d at 767. The court continued: “[W]e are also of the opinion the allowance of attorney[’s] fees should be only in such amount as will compensate for the services rendered. It must be fair and just to all concerned after it has been determined that the legal work being compensated was reasonably required and necessary.” Id.

¶ 12. Rule 1.5(a) of the Mississippi Rules of Professional Conduct similarly provides that “a lawyer’s fee shall be reasonable.” Rule 1.5(a) sets out several factors to be considered in determining reasonableness:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.

¶ 13. Although the chancellor did not recite the McKee factors or Rule 1.5(a) in explaining his division of fees, it appears that he fairly apportioned the limited fees between the attorneys based upon their respective work on the case. The chancellor observed that there was only about a $10,000 recovery obtained for the minor and that “chancery courts just don’t award attorney’s fees in an amount greater than what the client ultimately receives as a general rule.” The chancellor correctly referenced Rule 6.12 as guiding his analysis. He noted that “[t]he negotiation of the medical bills[,] ... [t]he work ... that secured the settlement^] and the reduction of the medical bills was all done by Mr. Miller.”

¶ 14. We have reviewed the bill for attorney’s fees submitted by Foster, and we agree with the chancellor’s finding that almost all of the work resulting in the financial recovery was performed by Miller, not Foster. Therefore, we find that the chancellor did not abuse his discretion in awarding Foster only $500 in attorney’s fees. This issue is without merit.

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

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

      . We use initials to protect the privacy of the minor involved in this matter.

      . McKee v. McKee, 418 So.2d 764 (Miss.1982).


author: BARNES, J.,

text:
    GATEWAY UNITED METHODIST CHURCH OF GULFPORT, MISSISSIPPI, Appellant v. MISSISSIPPI TRANSPORTATION COMMISSION, Appellee.
    No. 2013-CA-00638-COA.
    Court of Appeals of Mississippi.
    Sept. 23, 2014.

      Virgil G. Gillespie, Gulfport, attorney for appellant.
    Christopher M. Howdeshell, Hatties-burg, attorney for appellee.
    Before LEE, C.J., BARNES and FAIR, JJ.
   BARNES, J.,

for the Court:

¶ 1. The Mississippi Transportation Commission (MTC) filed a “Complaint to Condemn” in the Special Court of Eminent Domain in Harrison County, Mississippi, against Gateway United Methodist Church (Gateway) in Gulfport, Mississippi. The suit was initiated because MTC was unable to reach an agreement with Gateway for the acquisition of .12 acres of land along a sight flare for the improvement of an intersection at United States Highway 49 and South Swan Road. The special court granted MTC the right of immediate title and possession of the property at issue under Mississippi Code Annotated section 11-27-88 (Rev. 2004). After discovery was conducted, MTC filed a motion in limine and supplemental motion in limine to preclude any testimony on damages to the remainder of the property based upon restrictions of access along the sight flare. The court, granted the supplemental motion in limine, and a non-jury trial occurred. The court entered a judgment consistent with MTC’s statement of values, finding just compensation for the acquisition of the property in the amount of $46,450. From this judgment, and the order granting the motion in limine, Gateway appealed. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. In December 1990, Gateway purchased a 5.7 acre parcel of property located on the northeast comer of U.S. Highway 49 and South Swan Road in Gulfport, Mississippi. The church building and its facilities are located on the eastern side of the property, accessed by South Swan Road. On September 29, 2011, MTC filed “quick take” eminent-domain proceedings against Gateway in Harrison County, Mississippi. MTC desired immediate title and possession of .12 acres of property for safety improvements to the intersection of Highway 49 and South Swan Road. A plat entered into evidence shows an area designated “no access” runs across a diagonal portion of the western boundary of the property along Highway 49, which is the “sight flare” for the intersection of Highway 49 and South Swan Road.

¶ 3. In November 2011, in response to an ore tenus motion by MTC, the special court issued an order granting MTC the right of immediate title and possession of the property. MTC deposited funds of $169,500 in a court registry for compensation and damages determined by a court-appointed appraiser, pending resolution of the matter. Gateway claims any access to Highway 49 has now been taken by MTC, and all access to the church property must be from South Swan Road. Gateway contends it acquired access to Highway 49 when it bought the property, and before the taking by MTC, it had full rights to access the highway for 357.45 feet. After the taking, Gateway claims it has only 57.5 feet in the northwest corner of the property for access to Highway 49, which does not meet MTC specifications for an entrance to the property, or county requirements for the width of a street or right-of-way.

¶4. After discovery concluded, in November 2012 and January 2013 respectively, MTC filed a motion in limine and supplemental motion in limine to preclude any testimony on damages to the remainder of the property based upon restrictions of access along the no-access sight flare. In his deposition, Allen Purvis, Gateway’s expert real-estate appraiser, testified the property suffered $151,054 in damages as a result of MTC taking the no-access sight flare. In the motion, MTC argued that Gateway had no access rights available prior to the condemnation; so no access rights were being acquired, and thus there could be no damages.

¶ 5. MTC also offered, in support of its motion, the testimony of David Gray, the senior permit officer for the Mississippi Department of Transportation. He stated that as of September 29, 2011, Gateway would not have been eligible for a permit allowing access to the property along the no-access line described in the complaint. Gray further explained that because the no-access line was the same as the sight-flare line, a permit would be denied to prevent traffic from pulling out into the intersection, as well as to prevent obstacles interfering with the sight view of traffic at the intersection. In short, Gray testified that granting a permit within a sight flare would be a safety hazard. He was also not aware of any permit being granted along any sight flare in Harrison County on Highway 49.

¶ 6. Gateway responded that if it had no right to access, then MTC had no need to condemn the property. Gateway claimed that nothing in any of the deeds entered into evidence indicated MTC had taken access to Highway 49. Further, it argued that if the property had been “taken” by the MTC prior to its purchase by the church via the 1958 deed, there was no due process because no just compensation was ever paid to the church. Gateway claimed the parcel has had access to Highway 49 or its predecessor road (Fifth Avenue) since 1901.

¶ 7. On March 28, 2013, the special court granted MTC’s supplemental motion in limine, and agreed with MTC that since no access was available to Gateway before the taking, no access rights were being acquired. A non-jury trial ensued on April 16, 2018. MTC’s expert appraiser, Jamie Shotts, valued the property before the taking at $3,536,400, and after the taking at $3,489,950, determining just compensation to be $46,450. Gateway proffered the testimony of its appraisal expert, Purvis, about damages due to the loss of access to Highway 49. He appraised the property before the taking at $1,710,816 and after the taking at $1,518,163, determining just compensation to the church to be $192,653 for acquisition of the property and damages. Of this figure, Purvis assigned damage to the remaining property of $151,054 as a result of taking the “no access” area along Highway 49, and a land value of $41,599.

¶ 8. The court entered a judgment accepting MTC’s amount of just compensation of $46,450. Also confirmed was the November 2011 order granting title and possession of the property at issue to the MTC for public use. Gateway timely appealed both the April 2013 judgment and the March 2013 grant of MTC’s supplemental motion in limine.

STANDARD OF REVIEW

¶ 9. An appellate court’s standard of review regarding the admission or exclusion of evidence is abuse of discretion. There is no abuse of discretion by the trial court in granting a motion in limine if: “(1) the material or evidence in question will be inadmissible at trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury.” Ware v. Entergy Miss., Inc., 887 So.2d 763, 766 (¶ 6) (Miss.2004) (internal citation omitted). For questions of law, the standard of review is de novo. Id.

ANALYSIS

¶ 10. Gateway argues the special court erred in disallowing its expert witness Purvis’s appraisal testimony, which would have shown damages of approximately $151,054 to the remainder of the church property for the MTC’s taking of access along Highway 49. Gateway claims the MTC has taken Gateway’s only access to Highway 49 without just compensation in violation of due process under Article 3, Section 17 of the Mississippi Constitution.

¶ 11. It has long been established by the Mississippi Constitution that “it is beyond the power of the state or any corporation to take or damage the property of any person, even for a public use, without due compensation being first made.” Hill v. Woodward, 100 Miss. 879, 889, 57 So. 294, 295 (1911). In determining just compensation in eminent-domain cases, the Mississippi Supreme Court has created the following formula: “When part of a larger tract of land is taken for public use, the owner should be awarded the difference between the fair market value of the whole tract immediately before the taking, and the fair market value of that remaining immediately after the taking. ...” Miss. State Highway Comm’n v. Hillman, 189 Miss. 850, 866, 198 So. 565, 569 (1940). Evidence of fair market value is established as of the date of the filing of the complaint. Miss.Code Ann. § 11-27-19 (Rev. 2004). However, a landowner is not entitled to compensation under the Mississippi Constitution for diminution of access where the action taken by the State constitutes a reasonable exercise of police power and where the landowner is left with reasonable access. Maples v. Miss. State Highway Comm’n, 617 So.2d 265, 270 (Miss.1993) (citing Miss. State Highway Comm’n v. Hale, 531 So.2d 623, 626 (Miss.1988)).

¶ 12. Gateway maintains that the valuable right of access to Highway 49 has never been purchased or acquired by MTC before the instant taking, and that the just compensation MTC is required to pay for the taking should include damages for the loss of access. Gateway states that when the MTC acquired the “sight flare” parcel in a deed dated from 1959, there was no such thing as limited or no-access highways; therefore, the MTC could not have acquired any access rights at that time.

¶ 13. MTC counters that there were never landowner access rights to Highway 49 along the described “no access sight flare line”; therefore, there was no change in access rights after the taking. Accordingly, the court did not abuse its discretion in limiting testimony on damages to the remainder of the church property. MTC claims no just compensation can be awarded except as to the .12-acre tract, for which Gateway was awarded $46,450.

¶ 14. At the non-jury trial on this matter, Gateway made an offer of proof through its appraiser, Purvis, who opined that the amount of total compensation due Gateway was $192,653, with $151,054 of that amount as damages to the remaining property. Gateway maintains it must be compensated for its loss of access along Highway 49.

¶ 15. It is well established that “the abutting landowner on a conventional public highway has a special right of access and user in the highway; and that right is a property right which cannot be damaged or taken from him without due compensation.” Muse v. Miss. State Highway Comm’n, 233 Miss. 694, 713, 103 So.2d 839, 847 (1958). In Muse, however, the Mississippi Supreme Court held that an abutting landowner is not entitled to compensation for a reasonable exercise of police power. The Muse court explained:

[T]here is also a coexistent right belonging to the public, to use and improve the highway for the purpose of travel; and the owner of the abutting land has no absolute right, as against the public, to insist that the adjacent highway always remain available for his use in the same manner and to the same extent as when it was constructed.... [T]he abutting landowner’s right of access and user are subject to the right of the state under the police power to regulate and control the traffic on the highway in the interest of safety, and to restrict in a reasonable manner entrances from abutting property.

Id. at 713-14, 103 So.2d at 847 (emphasis added). Moreover, an “[a]ppellant cannot claim damages for the claimed taking of a right that never existed.” Morris v. Miss. State Highway Comm’n, 240 Miss. 783, 790, 129 So.2d 367, 370 (1961).

An abutting landowner has no right to the continuation of the flow of traffic past his property and the diminution in the value of land occasioned by public improvements that diverts the flow of traffic past an owner’s property is not compensable. Such changes are made in the exercise of the police power and do not constitute the taking or damaging of a property right.

Id. at 789, 129 So.2d at 369 (emphasis added).

¶ 16. Gateway claims that Muse is factually distinguishable to the instant case, as the Muse taking dealt with a limited access highway instead of a conventional highway, without a sight flare and with access to a service road, unlike here. Muse, 283 Miss, at 699, 103 So.2d at 841. In Muse, the Mississippi Supreme Court held that the State Highway Commission had a right to construct a median strip in a four-lane highway without payment of compensation to the appellant for damages, even though the construction of the strip would restrict the appellant’s right of access and cause inconvenience to the abutting property owners. Id. at 715, 103 So.2d at 848. We find Muse analogous to the instant case in spite of these factual distinctions. The condemned land in Muse was at all times under the control of the highway authorities, and the abutting landowner’s access rights were subject to the right of the state’s police powers for safety regulation. Id. at 713-14, 103 So.2d at 846-47.

¶ 17. Gateway acknowledges the MTC’s authority to exercise its police powers to regulate traffic and designate points of access. Gateway also concedes that if it wanted access along the sight flare to Highway 49, it would have to apply for and obtain a permit from the MTC. The evidence shows that Gateway would have been unable to obtain such an access permit prior to the instant taking.

¶ 18. Gateway’s access to its property was from South Swan Road. The MTC’s permit officer, Gray, testified in an affidavit that Gateway would not have been eligible for a permit granting access to Highway 49 on the area designated “no access” along the sight flare “because of the proximity of the property owned by the church to the intersection of Highway 49 and South Swan Road.” Gray stated that granting any access to that portion of the property would have created a safety hazard. Purvis, the appraiser for Gateway, testified in his deposition that he “believed that no access restriction was a new restriction as to preventing access there, and, therefore, believed that prior to that access was possible.” Purvis based this belief on “the documents that described the take.” However, he admitted that he did not investigate it, and did not admit to familiarity with the permitting process; therefore, he had nothing upon which to base his findings. The appraiser for MTC, Shotts, testified that “there was no difference in value of the improvements” as a result of the acquisition.

¶ 19. Mississippi State Highway Commission v. Blackwell, 350 So.2d 1325 (Miss.1977), is analogous to this case. In Blackwell, the MTC took a .05-acre tract of land and a drainage easement from a 2.42-acre tract owned by the Blackwells. The jury awarded the Blackwells $12,750. Similar to the present case, the land abutted Highway 49, and the MTC obtained the land by deed from the Blackwells’ predecessors in 1958 for the purpose of widening the highway and locating a sight flare at an intersection. Id. at 1325. In 1974, the MTC installed barricades on the east margin of the flare, effectively cutting off the Blackwells’ direct access to the highway. Id. at 1326. No permit for access had ever been applied for, not even by the Blackwells’ predecessors in title. The Blackwell court noted that when the sight flare was purchased, “the area became subject to Commission control under police powers.” Id. at 1327. The court reasoned that land acquired by the Commission through warranty deed, not condemnation, gives the Commission “the same right to control the land as if it had ‘condemned’ the property.” Id. at 1328. The court in Blackwell held that it was error to allow the Blackwells to introduce evidence concerning loss of access to the highway, and ordered a retrial with that evidence excluded. Id.

¶ 20. Similarly, we find it was not error for the special court to preclude testimony on damages to Gateway’s remaining property based on loss of access because Gateway did not have the right of access along the sight flare in the before condition. Purvis’s assigned damages to the property of $151,054 were based on the assumption that access rights were being acquired along the sight flares. However, as the testimony of Gray and Shotts attests, there was no change in access in the after condition of the property as compared to the before condition. If there was no change in the access, there could be no compensation for damages regarding loss of access. Additionally, Gateway retained access along South Swan Road and along Highway 49 outside of the sight flare. Finally, the right of MTC to regulate entrances into the highway under the police power is well established, and not a com-pensable taking. Thus, the court did not abuse its discretion in disallowing testimony on damages to the remainder.

¶ 21. THE JUDGMENT OF THE HARRISON COUNTY SPECIAL COURT OF EMINENT DOMAIN IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The property included all of Block 20 of the original Lyman Subdivision, which lay east of Highway 49. The original plat for the Lyman subdivision was filed in 1901. Between 1901 and the date of the filing of this lawsuit against Gateway, there were several acquisitions by the MTC.

      . Gateway claims it made the decision to build the church and its facilities on the east side of the property, so it would have a 1.8-acre tract available to sell as a commercial parcel along Highway 49.

      . A deed from 1959 was entered into evidence that MTC claims established the sight flare.

      . However, the record shows the church’s current access to the property is on South Swan Road, and there has never been any attempt to gain access to Highway 49.

      .At a hearing, MTC's counsel noted there was no dispute regarding the value of the .12 acres at issue, but only the damages to the remainder.

      . The parties waived a jury trial.

      . This figure represents land value only, and does not include damages to the remainder.

      . Gateway claims the property originally had access on its western edge along Fifth Avenue, which is now Highway 49.

      . Gateway’s appraised value of $41,599 for the .12-acre property was actually less than MTC's value.