author: BARNES, J„ CARLTON, J.,

text:
    NEWTON COUNTY, Mississippi and Rodney Bounds, Appellants/Cross-Appellees v. STATE of Mississippi for the Use and Benefit of George DUKES; George Dukes; and Union Insurance Company, Appellees/Cross-Appellants Newton County, Mississippi and Rodney Bounds, Appellants/Cross-Appellees v. State of Mississippi for the Use and Benefit of Joe Jordan; Joe Jordan; and Union Insurance Company, Appellees/Cross-Appellants.
    Nos. 2011-CA-01500-COA, 2011-CA-01501-COA.
    Court of Appeals of Mississippi.
    June 4, 2013.
    Rehearing Denied Oct. 1, 2013.
    Rehearing Denied Oct. 8, 2013.

      Michael Jeffrey Wolf, Jackson, Clifford Allen McDaniel II, attorneys for appellants.
    Thomas L. Tullos, Ron A. Yarbrough, Jackson, attorneys for appellees.
   BARNES, J„

for the Court:

¶ 1. This case of first impression stems from a circuit clerk’s approval of two su-persedeas bonds when there was no indication that the principals or the sureties could actually satisfy those supersedeas bonds in the event that they were unsuccessful on appeal. Incident to claims under the Mississippi Workers’ Compensation Act, George Dukes and Joe Jordan each obtained judgments that totaled approximately $185,000 against Roy and Kevin White. The Whites appealed and posted supersedeas bonds. Their wives signed as the sureties on those bonds. Rodney Bounds, the Newton County Circuit Clerk, mistakenly thought he was obligated to approve every supersedeas bond as a matter of course. After the Whites’ appeals were unsuccessful, they and their wives filed bankruptcy petitions. Dukes and Jordan were only able to collect a total of $25,000 from the Whites, despite having obtained judgments that totaled approximately $270,000.

¶ 2. Dukes and Jordan sued Bounds, Newton County, and the surety on Bounds’s public-official bond, Union Insurance Company Inc. According to Dukes and Jordan, Bounds had negligently approved the Whites’ supersedeas bonds. Bounds, Newton County, and Union filed motions for summary judgment based on various theories that they were not liable, but the circuit court denied those motions. However, the circuit court granted Dukes’s and Jordan’s motions for summary judgment and found no genuine issue of material fact to dispute the concepts that: (1) Newton County and Union were liable to Dukes and Jordan for the face value of the Whites’ two supersedeas bonds; (2) Bounds was not personally liable to Dukes or Jordan because Bounds acted within the course and scope of his employment as the Newton County Circuit Clerk; and (3) Union was entitled to indemnification from Bounds.

¶ 3. Newton County appeals and claims that the circuit court erred when it denied its motion for summary judgment. According to Newton County, the circuit court should have held that the Mississippi Tort Claims Act (MTCA) governed Dukes’s and Jordan’s lawsuits. Newton County further claims that Dukes’s and Jordan’s lawsuits were untimely under the MTCA. Additionally, Newton County argues that the MTCA provides immunity from Dukes’s and Jordan’s claims.

¶ 4. Bounds also appeals and argues that the circuit court erred when it held that Union was entitled to seek indemnification from him. Union cross-appeals and argues that the circuit court erred when it found that Union was liable to Dukes and Jordan, despite having found that Bounds was not liable to Dukes and Jordan.

¶ 5. Finally, Dukes and Jordan also cross-appeal. They claim that the circuit court erred when it denied their requests for attorney’s fees and pre-judgment interest. We find that the circuit court should have found that Dukes’s and Jordan’s claims were based on the MTCA rather than Bounds’s public-official bond. While the circuit court correctly held that there was no genuine issue of material fact regarding Newton County’s liability to Dukes and Jordan, it should have granted summary judgment in favor of, rather than against, Newton County. Further, the circuit court erred regarding its conclusion that Union was liable to Dukes and Jordan. Therefore, we reverse and render the circuit court’s judgments against Newton County, Union, and Bounds. We dismiss Union’s cross-appeal and Dukes’s and Jordan’s cross-appeals as moot.

FACTS AND PROCEDURAL HISTORY

¶ 6. This case involves litigation that caused more litigation. Dukes and Jordan sustained tragic injuries while working as timber cutters for Roy White and his son, Kevin White. Jordan and Dukes sued the Whites under the Mississippi Workers’ Compensation Act. Although the Whites did not have an insurance policy to cover workers’ compensation injuries, the Mississippi Workers’ Compensation Commission (the Commission) awarded Dukes and Jordan judgments against the Whites.

¶ 7. The Whites appealed to the circuit court. The circuit court affirmed the Commission’s judgments. Thereafter, the Whites filed supersedeas bonds of $136,751.95 and $134,367.43. Roy’s wife, Sylvia, and Kevin’s wife, Shelly, were the sureties on the Whites’ two supersedeas bonds. Rodney Bounds, the Newton County Circuit Clerk, approved the Whites’ supersedeas bonds without inquiring about the Whites’ financial ability to satisfy the supersedeas bonds.

¶ 8. Having had no success in their appeal to the circuit court, the Whites appealed to this Court. But in White v. Jordan, 11 So.3d 755, 761 (¶ 23) (Miss.Ct.App.2008), we also affirmed the Commission’s judgment.

¶ 9. After this Court’s mandate issued in White, Dukes and Jordan attempted to collect their judgments against the Whites. But the Whites filed bankruptcy petitions. Dukes and Jordan were eventually able to obtain $25,000 from Roy and Sylvia. Dukes and Jordan were unable to collect any money from Kevin and Shelly.

¶ 10. Dukes and Jordan then sued Newton County, Bounds, and Union. Essentially, Dukes and Jordan claimed that Bounds had negligently approved the Whites’ supersedeas bonds. Dukes and Jordan also claimed that they were entitled to collect on Bounds’s public-official bond.

¶ 11. Newton County and Union filed unsuccessful motions for summary judgment. However, Dukes and Jordan successfully moved for summary judgment. The circuit court found that there was no genuine issue of material fact to contradict the evidence that Newton County and Union were liable to Dukes and Jordan for the face value of the Whites’ two superse-deas bonds. But the circuit court found that Bounds was immune from Dukes’s and Jordan’s lawsuits because Bounds had been acting in his capacity as a government employee when he had approved the Whites’ supersedeas bonds. Even so, the circuit court awarded Union a judgment against Bounds based on the concept that Bounds was obligated to indemnify Union.

¶ 12. Newton County appeals. According to Newton County, the circuit court should have granted its motion for summary judgment because Dukes and Jordan had failed to file their claims within the MTCA’s one-year statute of limitations. Newton County also claims that there is no genuine issue of material fact that it is immune from Dukes’s and Jordan’s claims under various provisions of the MTCA. Additionally, Newton County argues that Dukes and Jordan waived their claims because they did not challenge the sufficiency of the Whites’ supersedeas bonds when Bounds approved them.

¶ 13. Bounds appeals and argues that the circuit court erred when it held that Bounds was obligated to indemnify Union. Union’s cross-appeal is somewhat related to Bounds’s claim in that Union argues that it should not be liable to Dukes and Jordan because the circuit court did not find that Bounds was individually liable. Dukes and Jordan also cross-appeal and claim that the circuit court should have held that Bounds was individually liable. Finally, Dukes and Jordan claim that the circuit court erred when it denied their requests for attorney’s fees and pre-judgment interest.

¶ 14. We reverse the circuit court’s decision regarding Newton County’s liability. Further, while we find that the circuit court correctly held that Bounds was not personally liable, the court erred when it held that Bounds was obligated to indemnify Union. Union is not liable to Dukes and Jordan, because Bounds is not liable to Dukes and Jordan. Consequently, we reverse and render the circuit court’s judgment. Union’s cross-appeal is dismissed as moot. Dukes’s and Jordan’s requests for attorney’s fees and pre-judgment interest are also dismissed as moot.

STANDARD OF REVIEW

¶ 15. This appeal follows the circuit court’s decisions to grant Dukes’s and Jordan’s motions for summary judgment and deny Newton County’s, Bounds’s, and Union’s motions for summary judgment. We employ a de novo standard of review to a trial court’s decision to grant or deny a motion for summary judgment. Cousin v. Enter. Leasing Co.-S. Cent., 948 So.2d 1287, 1289 (¶ 6) (Miss.2007). Consequently, we must examine all the evidentiary matters before us, such as admissions in pleadings, answers to interrogatories, depositions, and affidavits to determine whether there is a genuine issue of material fact. M.R.C.P. 56(c). In so doing, we view the evidence in the light most favorable to the nonmoving party. Cousin, 948 So.2d at 1289 (¶ 6). “If there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in the movant’s favor. The burden of demonstrating that no genuine issue of material fact exists is on the moving party.” Id. The nonmoving party “may not rest upon the mere allegations or denials of the pleadings, but instead the response must set forth specific facts showing that there is a genuine issue for trial.” Id. at 1290 (¶ 6).

¶ 16. However, the facts are undisputed. Like the circuit court, we must resolve issues that are purely questions of law. ‘We review questions of law de novo.” Fair v. Town of Friars Point, 930 So.2d 467, 470 (¶ 7) (Miss.Ct.App.2006).

ANALYSIS

I. TIMELINESS

¶ 17. The circuit court held that Dukes and Jordan’s claims were governed by the three-year “catch-all” statute of limitations found in Mississippi Code Annotated section 15-1-49 (Rev.2012). The circuit court also held that Dukes and Jordan filed their complaints within that three-year statute of limitations. Newton County argues that the circuit court should have applied the one-year statute of limitations applicable to claims under the MTCA. Newton County further argues that the statute of limitations began to run when Bounds approved the Whites’ super-sedeas bonds. Because Dukes and Jordan did not file their lawsuits within one year of the day that Bounds approved the Whites’ supersedeas bonds, Newton County concludes that Dukes’s and Jordan’s lawsuits were untimely. We note that “[t]he issue of whether the applicable statute of limitations has run is a question of law.” Stringer v. Trapp, 30 So.3d 339, 341 (¶ 9) (Miss.2010).

¶ 18. Dukes and Jordan argue that their claims are not governed by the MTCA. According to Dukes and Jordan, they sued Newton County, Bounds, and Union based on Bounds’s breaches of contract and his statutory duties as the circuit clerk. Even so,' Dukes’s and Jordan’s complaints indicate otherwise. Dukes’s and Jordan’s complaints center on the accusation that Bounds was negligent in the performance of his official duties as the circuit clerk because he: (1) failed to examine the principals and sureties on oath; (2) failed to examine the principals and sureties regarding their financial ability to satisfy the supersedeas bonds; (3) failed to require that the examination of the Whites be put in writing; (4) failed to require that the Whites sign their written examination; and (5) failed to require that the Whites provide a deposit. Essentially, Dukes and Jordan alleged that Bounds negligently approved the Whites’ supersedeas bonds.

¶ 19. Mississippi Code Annotated section 11-46-7(1) (Rev.2012) provides: “The remedy provided by this chapter against a governmental entity or its employee is exclusive of any other civil action or civil proceeding by reason of the same subject matter against the governmental entity or its employee ... for the act or omission which gave rise to the claim[.]” (Emphasis added). Clearly, the subject matter of Dukes’s and Jordan’s lawsuits focuses on the concept that Bounds negligently approved the Whites’ supersedeas bonds. Therefore, we find that the MTCA governs Dukes’s and Jordan’s lawsuits.

¶ 20. Dukes and Jordan cite Alexander v. Taylor, 928 So.2d 992 (Miss.Ct.App.2006), to support their argument that the MTCA does not govern their lawsuits. In Alexander, two people bought various parcels of land incident to a sale based on delinquent ad valorem taxes. Id. at 994 (¶ 2). However, the previous owner later redeemed the properties within the appropriate time. Id. The purchasers requested that the Marshall County Chancery Clerk award them title to the parcels of land. Id. Alternatively, the purchasers wanted the chancery clerk to return the ad valo-rem taxes that the purchasers had paid. Id. at 995 (¶ 9). The purchasers sued the chancery clerk based on his negligent failure to follow the proper statutory redemption procedure. Id. at 997 (¶ 19).

¶ 21. This Court held that a portion of the purchasers’ claims were governed by the MTCA. See id. at 996 (¶ 16). However, we also held that the MTCA did not govern the purchasers’ claims that the chancery clerk had failed to comply with his statutory duty under Mississippi Code Annotated section 27-45-5 (Rev.2002) to reimburse the purchasers after the prior owner redeemed the property that had been sold incident to a tax sale. Alexander, 928 So.2d at 998 (¶ 25). This Court further held that the chancery clerk’s failure to pay the purchasers as set forth in section 27-45-5 was “misfeasance in office,” which permitted the purchasers to sue the chancery clerk on his public-official bond. Alexander, 928 So.2d at 998 (¶ 25). Finally, we held that the three-year statute of limitations set forth in section 15-1-49 applied to that portion of the purchasers’ claims. Alexander, 928 So.2d at 999 (¶ 27).

¶ 22. Dukes and Jordan argue that their lawsuit is similar to the lawsuit in Alexander in that they sued Bounds, the circuit clerk, based on his failure to perform a statutory duty. The statutory duty in Alexander pertained to a chancery clerk’s duty under section 27-45-5. Alexander, 928 So.2d at 998 (¶ 25). Section 27-45-5 provides:

It shall be the duty of the chancery clerk of each county ... to immediately deposit in the county depository ... all sums of money paid to him by any person for the redemption of land sold for taxes in his county.... If such clerk shall neglect, refuse[,] or fail to deposit such funds received by him as herein provided, he shall be guilty of misfeasance in office, and in addition thereto!, he] shall be liable on his official bond to any person injured by his failure to deposit such funds in the county depository as herein provided.

(Emphasis added). Consequently, section 27-45-5 specifically provides that a chancery clerk shall be liable on his official bond if he fails to follow the mandates provided by that statute.

¶ 23. In contrast, Dukes and Jordan claim that Bounds negligently performed his duties under Mississippi Code Annotated section 11-51-38 (Rev.2012), which provides:

To enable the clerk to determine the value or amount of the matter in controversy ... where the same shall not appear by the proceedings in the cause, he may examine the parties and other persons, on oath. He may also examine, on oath, all persons who may be offered as sureties on any supersedeas bond, touching their sufficiency as such sureties, and require the examination to be put in writing and signed by such persons.

Section 11-51-33 does not provide that a clerk’s failure to ensure that the principals and sureties can satisfy the supersedeas bonds will result in liability on that clerk’s public-official bond. Additionally, unlike section 27-45-5, section 11-51-33 does not include mandatory duties. Instead, section 11-51-33 lists the means a circuit clerk may utilize to enable him to “determine the value or amount of the matter in controversy.” Accordingly, Alexander does not support Dukes’s and Jordan’s arguments that their claims are not governed by the MTCA. Consequently, the circuit court erred to the extent that it declined to apply the statute of limitations that governs claims under the MTCA. It follows that the circuit court erred when it applied the catch-all statute of limitations in section 15-1-49.

¶ 24. The circuit court should have applied the one-year statute of limitations set forth in Mississippi Code Annotated section 11-46-11(3) (Rev.2012). Even so, as an alternative to its conclusion that the three-year “catch-all” statute of limitations applied, the circuit court held that Dukes’s and Jordan’s claims were timely under the MTCA’s one-year statute of limitations. We agree.

¶ 25. Bounds approved the Whites’ supersedeas bonds on August 15, 2007. Newton County, Bounds, and Union argue that the statute of limitations began to run at that time. But Dukes and Jordan had no reason to suspect that the Whites did not have the financial means to satisfy the supersedeas bonds. Likewise, Dukes and Jordan had no reason to suspect that Bounds had approved deficient supersede-as bonds. The Mississippi Supreme Court has held that the statute of limitations applicable to the MTCA is subject to a discovery rule. Caves v. Yarbrough, 991 So.2d 142, 154 (¶ 47) (Miss.2008). “[T]he limitations period for MTCA claims does not begin to run until all the elements of a tort exist, and the claimant knows or, in the exercise of reasonable diligence, should know of both the injury and the act or omission which caused it.” Id. at 155 (¶ 53). Furthermore, “a right of action against a clerk of a court for the acceptance of ah insolvent or insufficient surety upon a bond does not accrue until a judgment is rendered on the bond.” 15(A) Am. Jur.2d Clerks of Court § 56 (2011).

¶ 26. This Court issued its mandate affirming the Commission’s judgment in White on July 16, 2009. All of the Whites declared bankruptcy in September 2009. As previously mentioned, Dukes and Jordan filed their lawsuits in May 2010. Dukes and Jordan clearly filed their lawsuits within the MTCA’s one-year statute of limitations. There is no merit to this issue.

II. IMMUNITY

¶ 27. Next, Newton County argues that the circuit court should have granted its motion for summary judgment because there is no genuine issue of material fact regarding whether Newton County was immune from Dukes’s and Jordan’s lawsuits based on at least one of four different immunity provisions of the MTCA. We find that consideration of only one, the judicial immunity, is required.

¶ 28. According to Mississippi Code Annotated section 11 — 46—9(l)(a) (Rev.2012), “[a] governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim ... [a]rising out of a legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature.... ” Therefore, neither Newton County nor the circuit clerk, Bounds, are liable if Bounds’s approval of the Whites’ supersedeas bonds arose out of a “judicial action” or an “administrative action ... of a ... judicial nature.” Id.

¶ 29. The United States Supreme Court has explained that the first focus of judicial immunity is whether the exercise of a judicial action is comparable to that of judges. Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 485-36, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993). “[T]he ‘touchstone’ for the [judicial immunity] doctrine’s applicability has been ‘performance of the function of resolving disputes between parties, or of authoritatively adjudicating private rights.’ ” Id. (quoting Burns v. Reed, 500 U.S. 478, 500, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991) (Scalia, J., concurring in part and dissenting in part). “When judicial immunity is extended to officials other than judges, it is because their judgments are ‘functionally comparable’ to those of judges — that is, because they, too, ‘exercise a discretionary judgment’ as a part of their function.” Id. at 436, 113 S.Ct. 2167 (quoting Imbler v. Pachtman, 424 U.S. 409, 423 n. 20, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)). In Antoine, the Supreme Court reversed the decision of the United States Court of Appeals for the Ninth Circuit, and found that court reporters were not entitled to absolute immunity for failure to produce a federal criminal trial transcript, because the court reporter did not exercise the kind of judgment protected by judicial immunity; a court reporter’s “duties are purely ministerial and administrative ... [with] no power of decision.” Id. at 436-37 n. 11, 113 S.Ct. 2167.

¶ 30. Recently, the Alabama Supreme Court noted: “[C]lerks are officials ‘with a blend of judicial and administrative duties’ and ... ‘are entitled to judicial immunity when they are ‘required to “exercise judgment” in the execution of a task.’” Ex parte City of Tuskegee, 932 So.2d 895, 909 (Ala.2005) (quoting Bayou La Batre v. Robinson, 785 So.2d 1128, 1133 (Ala.2000)). The court in City of Tuskegee explained that in Alabama, clerks of court and magistrates “are afforded judicial immunity for their ‘discretionary judicial acts.’ ” Id. at 908 (quoting Bayou La Batre, 785 So.2d at 1133). Alternatively, “an administrative duty that [does] not involve the exercise of judgment” would not warrant judicial immunity. Id. at 909 (citing Bayou La Ba tre, 785 So.2d at 1133).

¶ 31. The United States Court of Appeals for the Third Circuit has noted that “where the defendant is directly involved in the judicial process, he may receive immunity in his own right for the performance of a discretionary act or he may be covered by the immunity afforded the judge because he is performing a ministerial function at the direction of the judge.” Waits v. McGowan, 516 F.2d 203, 206 (3d Cir.1975) (noting “the range of reasoning used by the courts to protect the clerk of court from liability in civil rights suits”).

¶ 32. Judicial immunity in Mississippi is very broad — it provides protection not only for a “judicial action” but also an “administrative action” of a “judicial nature.” See Miss.Code Ann. § 11-46-9(l)(a). In this respect, Mississippi immunity would extend beyond that discussed in Antoine and City of Tuskegee. Mississippi would also protect the “administrative acts” of a “judicial nature.” “Several courts have held that the act of a clerk of court in passing upon the sufficiency of a surety for an appeal bond” or “accepting a defective appeal bond ... was protected” because “the clerk ... acted quasi-judicially, or ... approved the bond in good faith.... ” Andrea G. Nadel, Annotation, Applicability of Judicial Immunity to Acts of Clerk of Court under State Law, 34 A.L.R.4th, 1186, 1189 (1984). The Alabama Supreme Court has held that “[t]he approval of the financial sufficiency of a bond entrusted to an administrative officer is a quasi judicial act by him.... ” Martin v. Carroll, 257 Ala. 179, 58 So.2d 106, 107 (1952) (citing Baker v. Denniston-Boykin Co., 245 Ala. 407, 17 So.2d 148, 151 (1944)). Illinois courts have also held that the approval of an appeal bond is a judicial act. Benson v. Gerhart, 241 Ill.App. 376, 380 (Ill.App.Ct.1926) (citing Plotke v. Chicago Title & Trust Co., 175 Ill. 234, 51 N.E. 754, 755 (1898)).

¶ 33. Long ago, the Mississippi Supreme Court determined that the duty of a chancery clerk to approve bonds of county officers “is in the nature of a judicial act, requiring the exercise of judgment and discretion in the performance of it. It is not a ministerial duty....” Swan v. Gray, 44 Miss. 393, 393 (1870). The court, bound by this authority, later determined that the refusal of the president of a board of supervisors to approve a bond of the clerk of the chancery and circuit courts could not be overturned by mandamus, even where the refusal was “a capricious and arbitrary exercise of power.” Shotwell v. Covington, 69 Miss. 735, 737, 12 So. 260, 260 (1892). The court noted that “if, in the exercise of the power of approval, however erroneous his action, in the absence of statutory provisions subjecting him to liability, he (the approving officer) is exempt, on the common-law principle which protects a judge from liability to suit or indictment for judicial acts or omissions.” Id. at 739, 12 So. at 261 (quoting Ex parte Harris, 52 Ala. 87, 1875 WL 899, at *3 (1875)).

¶ 34. In Fairley v. Ladnier, 190 Miss. 514, 519, 200 So. 724, 725 (1941), the Mississippi Supreme Court reiterated that the chancery clerk was “acting judicially” when passing upon the sufficiency of the bonds of county officials. In Fairley, the president of the board of supervisors and the clerk of the chancery court refused to approve an official bond of a member of the board of supervisors, executed on behalf of the appellant, Fairley. Id. at 517, 200 So. at 724. On appeal, the Mississippi Supreme Court held that while these officers were acting “judicially,” the court was without authority to review their actions. Id. at 619-20, 200 So. at 725.

¶ 35. In the instant case, the circuit clerk’s act of approving the supersede-as bonds was the same as if a judge had been called upon to do so. Mississippi statutory law provides that “[a] supersede-as shall not be granted in any case pending before the Supreme Court, unless the party applying for it shall give bond as required by the Rules of the Supreme Court.” Miss.Code Ann. § 11-51-31 (Rev. 2012). Mississippi Rule of Appellate Procedure 8(a) states the circuit court clerk shall approve the supersedeas bond, and this approval “shall constitute a stay of the judgment.” The Mississippi Code also gives clerks the authority to take testimony of the parties and other individuals, under oath, regarding the adequacy of the sureties on any supersedeas bond. Miss. Code Ann. § 11-51-33 (Rev.2012). Rule 8(a) goes on to explain that if the clerk declines to approve the bond, or the clerk’s approval is contested, the dissatisfied party may appeal the decision to the circuit judge. The fact that the clerk’s approval is not absolutely necessary — the appeal may go forward without it — does not make the supersedeas bond any less of an integral part of the appellate process. Undoubtedly, had Dukes and Jordan appealed the approval of the supersedeas bond to the circuit judge, and the judge affirmed the approval, the circuit judge would be entitled to judicial immunity. The clerk’s act, approval of the bond, would be entitled to the same immunity.

¶ 36. In Forrester v. White, 484 U.S. 219, 227, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988), the United States Supreme Court explained the “functional approach” to determine whether an official’s tasks are so integral to the judicial process that they are entitled to absolute judicial immunity:

[T]he doctrine of absolute judicial immunity has not been particularly controversial. Difficulties have arisen primarily in attempting to draw the line between truly judicial acts, for which immunity is appropriate, and acts that simply happen to have been done by judges. Here, as in other contexts, immunity is justified and defined by the functions it protects and serves, not by the person to whom it attaches.

The Court continued: “[I]t was the nature of the function performed, not the identity of the actor who performed it, that informed our immunity analysis.” Id. at 229.

¶ 37. In Mississippi, the clerk serves the same function as the judge in approving supersedeas bonds. Approval of the bond is an integral part of the judicial function, and our rules authorize the clerk to exercise his discretion. While it is indeed unfortunate that the circuit clerk did not understand his responsibility in approving the supersedeas bond in question, the “judicial-action” immunity protects Newton County from liability for his acts.

III. OBLIGATION TO CHALLENGE THE SUPERSEDEAS BONDS

¶ 38. Newton County claims Dukes and Jordan waived their rights to recover under the supersedeas bonds because they did not challenge Bounds’s approval at the time. Newton County’s reasoning is based on the ideas that (1) there was no evidence that Bounds knew the Whites were insolvent when Bounds approved their superse-deas bonds; (2) Dukes and Jordan were represented by counsel during the underlying litigation; and (3) the provisions of Rule 8 of the Mississippi Rules of Appellate Procedure.

¶ 39. Rule 8(a) of the Mississippi Rules of Appellate Procedure provides that “[i]n the event the clerk declines to approve the bond, or the clerk’s approval is contested, or the appellant seeks a stay on any basis other than compliance with this subdivision, the requirements of Rule 8(b) apply.” According to Rule 8(b)(1), “Application for a stay of the judgment or the order of a trial court pending appeal or for approval or disapproval of a contested supersede-as bond or for an order suspending, modifying, restoring, or granting an injunction during the pendency of an appeal must ordinarily be made in the first instance to the trial court.”

¶ 40. Rule 8(a) allows a litigant to challenge a clerk’s approval of a superse-deas bond. In this case, Bounds did not decline to approve the supersedeas bonds, and no party contested Bounds’s approval. But no portion of Rule 8 stands for the concept that a plaintiff waives the right to sue a circuit clerk for negligently approving a supersedeas bond if that plaintiff did not challenge the circuit clerk’s approval of that bond. There is no merit to this issue.

IV. INDEMNIFICATION AGAINST BOUNDS

¶ 41. Bounds argues that the circuit court erred when it held that he was obligated to indemnify Union for its liability to Dukes and Jordan. As the surety on Bounds’s public-official bond, Union’s liability is conditioned upon Bounds’s own liability. According to Bounds’s public-official bond:

[Bounds] will at all times indemnify and save [Union] harmless from and against every claim, demand, liability, cost, loss, charge, expense, suit, order, judgment, and adjudication whatsoever, counsel fees payable on demand by [Union] whether actually incurred or not, including fees of attorneys whenever by [Union] deemed necessary, and any and all liability therefor, sustained or incurred by [Union] by reason of having executed or procured the execution of said bonds or obligations....

However, “[n]o employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee’s duties.” Miss.Code Ann. § 11-46-7(2) (Rev.2012). Mississippi Code Annotated section 11-46-7(7) (Rev.2012) states that “it shall be a rebuttable presumption that any act or omission of an employee within the time and at the place of his employment is within the course and scope of his employment.” It is undisputed that Bounds was acting in the course and scope of his employment when he approved the Whites’ supersedeas bonds.

¶ 42. Furthermore, “no liability may be imputed to [a] surety beyond that of its principal.” Mohundro v. Alcorn Cnty., 675 So.2d 848, 854 (Miss.1996). As related to Bounds’s public-official bond, Bounds was the principal and Union was the surety. Because Bounds cannot be personally liable to Dukes and Jordan, Union likewise cannot be liable to Dukes and Jordan. Consequently, Union has no reason to require indemnification from Bounds. Therefore, we find that the circuit court erred when it held that Bounds was obligated to indemnify Union. It follows that we reverse and render the circuit court’s judgment holding Bounds liable to Union. Accordingly, Union’s cross-appeal is moot. Similarly, Dukes’s and Jordan’s claims on cross-appeal that the circuit court erred when it held that Bounds was not personally liable are also moot.

V. JORDAN’S AND DUKES’S CROSS-APPEALS

¶ 43. On cross-appeal, Dukes and Jordan argue that the circuit court erred when it declined to award them attorney’s fees. However, “[n]o judgment against a governmental entity or its employee for any act or omission for which immunity is waived under this chapter shall include ... an award of attorney’s fees unless attorney’s fees are specifically authorized by law.” Miss.Code Ann. § 11-46-15(2) (Rev. 2012). We find no merit to this issue.

¶ 44. Dukes and Jordan also claim the circuit court should have awarded them pre-judgment interest. Section 11-46-15(2) provides that “[n]o judgment against a governmental entity or its employee for any act or omission for which immunity is waived under this chapter shall include an award ... for interest prior to judgment.” Thus, there is no merit to this issue.

¶ 45. Further, Dukes’s and Jordan’s claims for attorney’s fees and pre-judgment interest are moot as we reverse and render judgment in favor of Newton County, Bounds, and Union.

¶ 46. THE JUDGMENT OF THE NEWTON COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPEL-LEES/CROSS-APPELLANTS.

IRVING AND GRIFFIS, P.JJ., ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY ISHEE, J. LEE, C.J., NOT PARTICIPATING.

CARLTON, J.,

concurring in part and dissenting in part:

¶ 47. In this case, I submit that the actions against the separately named defendants face different statutes of limitation. I concur with the majority that the action against the separate defendant Union is not barred by the MTCA. See Estate of Spiegel v. Western Surety Co., 908 So.2d 859, 863-64 (¶ 18) (Miss.Ct.App.2005). I also concur with the majority’s determination that MTCA one-year statute of limitations applies to the claims against defendant Newton County and defendant Bounds, the former circuit clerk. However, I find that the one-year statute of limitations of the MTCA fails to apply to the action against the separate defendant Union as surety on Bounds’s public-official bond for breach of express contract. See U.S. Fid. & Guar. Co. v. Melson, 809 So.2d 647, 652 (¶ 18) (Miss.2002).

¶ 48. With respect to immunity and liability in this case, I further submit that MTCA discretionary immunity governs and bars the action against the Newton County and Bounds as a governmental entity and government official, respectively. The trial court thus erred in failing to grant Newton County’s motion for summary judgment. The circuit clerk possesses discretion to approve sureties, discretion in how to evaluate the sufficiency of a surety, and discretion to decline sureties. The plain language of Mississippi Code Annotated section 11-51-33 (Rev.2012) expressly provides discretion as to how the circuit clerk approves sureties on superse-deas bonds. Additionally, Mississippi Rule of Appellate Procedure 8(a) applies to money judgments and clearly reflects the trial court clerk’s discretion in approving a bond with two or more sufficient sureties and also reflects that the clerk possesses even the discretion to decline approval of the bond. See also Journeay v. Berry, 953 So.2d 1145, 1162 (¶ 62) (Miss.Ct.App.2007) (finding trial court acted within its “discretion” in setting $18,250 supersedeas bond in appeal of restrictive covenant case); Deal v. Wilson, 922 So.2d 24, 30 (¶ 17) (Miss.Ct.App.2005) (addressing provisions of Mississippi Rule of Appellate Procedure 8).

¶ 49. When assessing liability against Union for the failure of his performance, the crux of the issue, in my view, is whether Bounds abused his discretion and failed to properly perform his statutory duties. The record reflects that Bounds indeed abused his discretion in this case, but the MTCA provides immunity to government officials for abuses of discretion occurring within the scope of their official discretionary duties. Miss.Code Ann. § 11-46-9(l)(d) (Rev.2012); see also Melson, 809 So.2d at 655 (¶ 34) (“In order for the surety to be held liable under its public-official bond, the official’s act or omission must be within scope or duties of his office.”). Bounds, in his capacity as circuit clerk for the county, thus possessed immunity from liability pursuant to the governmental discretionary immunity of the MTCA.

¶ 50. However, in applying precedent, including precedent pertaining to public-official bonds and voluntary contractual obligations, I find no error in the trial court’s ruling that Bounds remained accountable for the breach of his duties under his surety contract with Union, wherein he voluntarily agreed to indemnify Union for such a breach. Union, as surety, was still liable to Dukes and Jordan for the breach of Bounds’s performance of his duties in accordance with the express terms of the surety contract. In City of Mound Bayou v. Johnson, 562 So.2d 1212, 1216 (Miss.1990), the supreme court explained that the surety’s liability is derivative of the conduct and default of the principal, whose conduct is measured by other standards.

¶ 51. Since the action against Union is for breach of express contract, I submit that the trial court properly applied the catch-all statute of limitations of Mississippi Code Annotated section 15-1-49 (Rev. 2012) to the action against Union as surety for breach of its express contract. Therefore, since the action constitutes a claim against Union, as surety of the former circuit clerk, for breach of the express terms of the public official bond, the MTCA fails to apply as to the action against Union. See Estate of Spiegel v. W. Sur. Co., 908 So.2d 859, 863-64 (¶ 18) (Miss.Ct.App.2005).

¶ 52. In Spiegel, this court addressed similar issues in a matter where more than one statute of limitations applied as to the various separate defendants. There, this Court explained that the MTCA applied to the action against the former circuit clerk in that case, but that the MTCA failed to apply to the breach-of-express contract claim against the surety of the former circuit clerk. Id. The Spiegel court also explained that since the MTCA applied to the action against the former circuit clerk, but not to his surety, more than one statute of limitations applied to the separate, various named defendants in that case. Id. at 864 (¶ 19). The Court concluded that general provisions of law applied, not the MTCA, to the action against the surety as a separate defendant for breach of express contract.

¶ 53. Recently, in Herndon v. Mississippi Forestry Commission, 67 So.3d 788, 792 (¶ 10) (Miss.Ct.App.2010), this Court recognized that “if a statute is plain and unambiguous, there is no need for statutory interpretation.” (Citing Miss. Methodist Hosp. & Rehab. Ctr., Inc. v. Miss. Div. of Medicaid, 21 So.3d 600, 607 (¶ 18) (Miss.2009)). The Herndon court acknowledged the supreme court’s guidance that

statutory interpretation is appropriate if a statute is ambiguous or is silent on a specific issue. The best evidence of legislative intent is the text of the statute; the Court may also look to the statute’s historical background, purpose, and objectives. If a statute is ambiguous, it is the Court’s duty to “carefully review statutory language and apply its most reasonable interpretation and meaning to the facts of a particular case.

Id. (citing Miss. Methodist Hosp., 21 So.3d at 607-08 (¶ 18).

¶ 54. Since the statute and Rule 8(a) clearly reflect that the trial clerk possesses discretion in approving a bond with sufficient sureties or in declining such approval, I conclude that the circuit court should have granted Newton County’s motion for summary judgment because no question of material fact exists as to Bounds’s or Newton County’s immunity from Dukes’s and Jordan’s lawsuits based upon governmental discretionary immunity under the MTCA. See Miss.Code Ann. § 11-46-9(l)(d) (a governmental entity is not liable for any clam based upon the exercise or performance of, or failure to exercise or perform, a discretionary function or duty on the part of an employee whether or not the discretion is abused). Bounds testified in his deposition that he believed that he had faithfully executed the duties of his office when approving the bond.

¶ 55. Accordingly, I respectfully concur in part and dissent in part.

ISHEE, J., JOINS THIS OPINION.

      . A tree fell on Dukes and Jordan. Jordan was paralyzed from the waist down. Dukes broke his arm.

      . Dukes and Jordan each obtained judgments for $300.02 per week for 450 weeks.

      . Sylvia was a Newton County election commissioner. As such, Bounds saw her in the circuit clerk’s office multiple times each week.

      . During his deposition, Bounds said that he did nothing to determine the sufficiency of the Whites' assets. He did not understand his responsibilities as a circuit clerk as they related to supersedeas bonds, despite having been the Newton County Circuit Clerk for approximately twenty-eight years. According to Bounds, he simply assumed that the Whites could satisfy the supersedeas bonds, but that was essentially irrelevant to him because he thought he was obligated to approve every supersedeas bond that was presented to him as a matter of course.

      . The circuit court denied Dukes’s and Jordan's requests for attorney's fees and prejudgment interest.

      . The circuit court held that Newton County and Union were jointly liable to Dukes and Jordan for the value of the Whites’ two super-sedeas bonds. No party has raised an issue regarding the circuit court’s computation of Dukes’s and Jordan’s damages.

      . In City of Tuskegee, police officers, the city, the clerk of courts, and the magistrate petitioned for a writ of mandamus directing the circuit court to grant summary judgment on the basis that they were entitled to immunity in an arrestee's underlying action against them. City of Tuskegee, 932 So.2d at 898-99. The underlying action arose from an erroneous issuance of a capias warrant for failure to appear at a hearing on harassment charges. Id. at 899. The Alabama Supreme Court denied the petition for mandamus as to the clerk of court and the magistrate on the basis of judicial immunity because the supreme court could not determine from the evidence if their actions were administrative or discretionary. Id. at 910-11.

      . See also King v. Sawyer, 1 Ala.App. 439, 55 So. 320, 321 (1911) ("The approval of, or the refusal to approve, a bond ... by a justice of the peace, or other officer authorized to approve such bond, is a judicial act, and there is no principle more firmly established than that a judicial officer is not liable in damages....”); Howe v. Mason, 14 Iowa 510, 1863 WL 157, *3 (1863) ("[T]he act of approving a bond by a justice of the peace is of a judicial character, or at least ... determining the question whether the sureties in a bond are competent to contract, so partakes of a judicial act as to release a justice from liability if he should honestly err in his judgment.”).

      . The Shotwell court noted some conflict among courts as to whether the power delegated to officers or courts to approve bonds of public officers is ministerial or judicial in nature. Shotwell, 69 Miss. at 737, 12 So. at 260. The Shotwell court would have preferred this power be ministerial rather than judicial "[i]n view of the interest of the public in having officers elected by them inducted into office.” Id. However, the court found itself bound by Swan.

      . We note that as reported in the Westlaw database, Westlaw uses the word “juridically,” but the word used in the Mississippi Reports and Southern Reporter is "judicially." The Mississippi Reports is, of course, the official reporter. See M.R.A.P. 28(e). However, the meaning of the two words is the same: relating to administration of justice, or the office of a judge. Black's Law Dictionary 846, 853 (6th ed. 1990).

      . Forrester held that a judge was not entitled to judicial immunity for his decision to demote and discharge a probation officer, although the judge’s decision was made in the course of the judge's administrative capacity. Forrester, 484 U.S. at 229-30, 108 S.Ct. 538.

      . See also Journeay v. Berry, 953 So.2d 1145, 1162 (¶ 62) (Miss.Ct.App.2007).

      . Compare McBride v. Aetna Cas. & Sur. Co., 583 So.2d 974, 975 (Miss.1991); U.S. Fid. & Guar. Co. v. Citizens' State Bank of Moorhead,
        150 Miss. 386, 386, 116 So. 605, 608 (1928) (fidelity bond is in nature of indemnity and is to be construed by rules of contracts of insurance).

      . See also Fid. & Guar. Ins. Co. v. Blount, 63 So.3d 453, 460 (¶ 29) (Miss.2011) ("issuance of surety bond creates contractual relationship between surety and its principal”; relationship is one of fiduciary nature where surety is bound by actions of principal).

      . I submit that Bounds's duty to indemnify Union stemmed from the contract he signed with Union wherein he agreed to indemnify and save Union from and against every claim, demand, liability, loss, fees, charge, expense, suit, order, judgment, and adjudication whatsoever, counsel fees, and including liability therefor sustained or incurred as a consequence of having executed bonds for and on behalf of Bounds. Witnesses observed Bounds's signature on the bond application with Union.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Mary TERRELL, Appellant v. Robert TERRELL, Appellee.
    No. 2011-CA-01540-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.
    Rehearing Denied Dec. 3, 2013.
    Certiorari Denied March 6, 2014.

      Joseph R. Meadows, Gulfport, attorney for appellant.
    William E. Tisdale, attorney for appel-lee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Dr. Robert Terrell and his wife, Mary Terrell, filed for a divorce in 2007 in the Jackson County Chancery Court. Their twenty-two-year marriage was dissolved in 2011 when a final judgment was entered by the chancery court awarding Robert and Mary a divorce based on irreconcilable differences. In the order, the chancery court also determined the issues of alimony, distribution of the Terrells’ assets, child support, expenses, and fees. Mary now appeals the chancery court’s order asserting the chancery court (1) failed to equitably divide the marital assets; (2) erroneously classified an asset as marital; (3) erred in its analysis of alimony and specifically erred in failing to award her periodic alimony; (4) erred by assigning to her half of the renovation and sale costs for the marital home; and (5) erred in failing to award her attorney’s fees, court costs, and expert-witness fees. We affirm in part and reverse and render in part.

STATEMENT OF FACTS

¶ 2. Robert and Mary wed in Oklahoma in 1986. At the time, Robert had graduated from college with a degree in chemical engineering, but had returned to school to complete his medical degree. He was a second-year resident at Oklahoma Teaching Hospital at the time of the nuptials. Robert was also actively enrolled in the military. Mary had received her bachelor’s degree in sociology and was working in the risk-management department at Baptist Medical Center at the time of the marriage. The Terrells had a child, Catherine, and three years later, Mary quit work to stay home and care for the baby.

¶ 3. In 1997, the family moved to Ocean Springs, Mississippi, where Robert has remained employed by Bienville Orthopedics (the clinic). Shortly thereafter, Robert retired from the military. He currently draws his military retirement in addition to his earnings at the clinic. He also maintains a small ownership interest in several medical facilities in the Ocean Springs area, which bring in passive monthly income. The record reflects that Robert’s gross yearly income is approximately $350,000. While he grosses about $29,000 a month, his net monthly pay— after taxes, insurance, and mandatory retirement — is around $16,000.

¶ 4. The Terrells separated in 2007 and filed for a fault-based divorce shortly thereafter. Their daughter, Catherine, had already left for college at Oklahoma State University at the time of the filing. Robert immediately moved out of the marital home, but continued to pay all expenses for the home. Mary lived in the home until relocating to Oklahoma City, Oklahoma, with all of the home’s furnishings in 2010.

¶ 5. She was awarded the following temporary support: $3,000 a month in temporary periodic alimony; $1,250 a month in child support; the use of $65,000, which had been placed into a money-market account; exclusive use of a 2007 Mercedes Benz ML 350; continued payment by Robert of the marital home’s mortgage, property taxes, property insurance, all utilities, and yard expenses; and Robert’s payment of Mary’s health expenses, including all expenses not covered by Robert’s medical insurance policy. Mary was held responsible for her cell-phone payment and her car insurance. Robert was ordered to obtain appraisals on all real property owned by the Terrells and to obtain an expert to appraise Robert’s medical practice and other business interests.

¶ 6. After numerous continuances, the Terrells presented a consent to adjudicate to the chancery court in December 2010. The consent withdrew all fault-based grounds for the divorce and consented to an irreconcilable-differences divorce. Therein, the Terrells requested that the chancery court assess and divide their assets; determine payment of Catherine’s college expenses, Mary’s medical payments, and alimony; and assess all fees, costs, and expenses related to the litigation.

¶ 7. In March 2011, the chancery court issued its final judgment. The Terrells’ estate was valued at approximately $1.2 million. Robert was awarded his medical practice and his interests in several businesses. He was also awarded his 2000 Jeep Cherokee, various personal property, and his 401(k) retirement fund valued at $337,335. Additionally, the circuit court awarded him half of the value of his daughter’s 2008 Mazda 2, which totaled approximately $7,862. Robert was ordered to pay Mary’s COBRA insurance premiums for thirty-six months at $450 a month and the yearly deductible of $2,500, if accrued.

¶ 8. Mary was awarded an IRA in the amount of $417,982; the $65,000 in cash remaining in the money-market account; a $5,000 death-benefit policy; her Mercedes SUV; and personal property and jewelry. She was also granted half of the value of Catherine’s vehicle. Mary was further awarded half of Robert’s military retirement, which pays $537.67 to her a month. Finally, she was given lump-sum alimony at $1,000 a month, for a total of $42,157.60.

¶ 9. The estate was divided between the parties in equal amounts of $595,387.10. The marital home was valued at $470,000, but the two mortgages on the home total $471,113. The anticipated difference following the sale of the home, plus all repair costs and sale expenses totaled about $58,000. This cost was split between the parties. The chancery court also found that since neither party exhibited an inability to pay, each party would be responsible for his or her individual litigation expenses. Finally, since Catherine was twenty-one years old at the time of the trial, the chancery court determined that it was without authority to order the payment of child-support or college expenses.

¶ 10. Mary now appeals claiming the following: (1) the chancery court erred in failing to divide the marital estate equitably; (2) the chancery court erred in its designation of Catherine’s vehicle as a marital asset; (3) the chancery court erred by failing to consider all relevant factors relating to alimony and, in doing so, failed to award her periodic alimony; (4) the chancery court erred in requiring her to pay one-half of the costs associated with the repair and sale of the marital home; and (5) the chancery court erred in failing to award her litigation expenses.

DISCUSSION

I. Division of Marital Assets

¶ 11. Mary’s first two assignments of error relate to the division of assets in the marital estate. Accordingly, we will address them in tandem. In domestic-relations cases, we employ a limited standard of review. Carrow v. Carrow, 741 So.2d 200, 202 (¶ 9) (Miss.1999). Specifically, “[w]e will not disturb the findings of a[c]hancellor unless the [c]hancellor was manifestly wrong [or] clearly erroneous, or, [applied] an erroneous legal standard[.]” Id. (citation omitted). With regard to division and distribution of property, we maintain the objective of “a fair division based upon the facts of the case[.]” Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997) (referencing Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994)).

¶ 12. In general, when dividing and distributing property, courts employ the following factors, which were laid out in Ferguson, 639 So.2d at 928:

(1) Substantial contribution to the accumulation of the property ...[;]
(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, decreet,] 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.

“In reviewing a chancellor’s judgment, [the appellate court] does not conduct a Ferguson analysis anew, but reviews the judgment to ensure that the chancellor followed the appropriate standards and did not abuse his discretion.” Phillips v. Phillips, 904 So.2d 999, 1001 (¶ 8) (Miss.2004).

¶ 13. Equitable distribution of assets does not always constitute equal distribution of assets, since chancellors are empowered with the ability to impart fairness into the process of dividing the estate rather than awarding a percentage value to the parties. See Love v. Love, 687 So.2d 1229, 1282 (Miss.1997). Mary asserts that the chancery court failed to equitably divide the marital estate. In its division of the estate, the chancery court technically awarded Robert $595,387.10 of the total marital assets, and awarded Mary $553,229.50. However, the chancery court also awarded Mary $42,157.60 in lump-sum alimony to arrive at an equal division of $595,387.10 per party. Additionally, Mary was granted half of Robert’s military retirement income, which totals approximately $538 a month. Robert was also ordered to pay Mary’s monthly COBRA costs, which total $450 a month, plus the $2,500 annual deductible, should it arise.

¶ 14. In sum, Mary actually received a higher award in the divorce than did Robert when taking into account extra expenses and payments. Regardless, Mary argues that her litigation expenses and the costs of repairing and selling the marital home lessen her actual award. She also argues that the principles of equity demand that the chancery court take into account her current monthly living expenses of $6,500, which require her to draw money out of and pay taxes on the $417,000 IRA account. Later in this opinion, we will address the issue of awarding costs and expenses. Nonetheless, at present it must be noted that Mary’s expenses and means of meeting her expenses were factors considered by the chancery court at the time of distribution. The chancery court cited the Ferguson factors and the benchmark Hemsley case in its analysis of the parties’ monetary circumstances. To overturn the chancery court’s findings would require an abuse of discretion and an improper application of the law on the part of the chancery court. That does not exist in the present case. This issue is without merit.

¶ 15. Next, Mary contends that the chancery court erred in placing Catherine’s automobile into the category of marital assets. For purposes of a divorce proceeding, the definition of marital property is “any and all property acquired or accumulated during the marriage.... We assume for divorce purposes that the contributions and efforts of the marital partners, whether economic, domestic[,] or otherwise[,] are of equal value.” Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994). “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.” Id. at 914.

¶ 16. Mary does not contest the fact that the automobile in question was purchased during the course of the marriage. Rather, she asserts that because Robert purchased the vehicle for Catherine, titled the vehicle in Catherine’s name, and has transferred his ownership interest in the vehicle to Catherine, the value of the automobile, as it pertains to the divorce, erroneously inflates Mary’s dollar value in the marital estate. She argues that the value of the entire marital estate should be lessened by the total value of the automobile, or $15,725.

¶ 17. We agree that the vehicle should not have been deemed a part of the marital estate. While it was purchased during the course of the marriage, it is not marital property, nor is it separate property. Rather, it was a gift from Robert and Mary to Catherine, who was a third-party recipient. Catherine has retained physical custody of the vehicle and has been the legal title holder of the vehicle since it was purchased. It was not an asset of Robert or Mary either jointly or separately. Accordingly, we reverse and render this issue specifically for the elimination of Catherine’s automobile from the marital estate.

II. Alimony

¶ 18. Mary next asserts that the chancery court erred by failing to grant her periodic alimony and by failing to consider the proper factors relating to alimony. A “chancellor’s decision on alimony will not be disturbed on appeal unless it is found to be against the overwhelming weight of the evidence or manifestly in error.” Tilley v. Tilley, 610 So.2d 348, 351 (Miss.1992) (citation omitted). In analyzing the parties’ need for alimony, the chancery court cited Lauro v. Lauro, 847 So.2d 843, 848 (¶ 13) (Miss.2003), for the proposition that alimony may be considered only after the marital estate has been equitably divided and a deficit exists for one of the parties. “Equitable distribution and alimony are parts of the same issue.” Cosentino v. Cosentino, 912 So.2d 1130, 1132 (¶ 9) (Miss.Ct.App.2005) (citing Ferguson, 639 So.2d at 929). While the chancellor did not specifically address each of the factors established by the Mississippi Supreme Court in Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993), for determining alimony, the chancery court did conduct an extensive analysis of the needs of the parties.

¶ 19. Specifically, the chancellor referenced Cheatham v. Cheatham, 537 So.2d 435 (Miss.1988), for the proper factors to be considered when awarding lump-sum alimony. Those factors include: “(1) [A substantial contribution to [the] accumulation of [the] total wealth of the payor either by quitting a job to become a housewife, or by assisting in the spouse’s business[;] (2) [a] long marriage[;] (3) [w]here [the] recipient spouse has no separate income or the separate estate is meager by comparison[;] [and] (4) [without the lump[-]sum award the receiving spouse would lack any financial security.” Cheatham, 537 So.2d at 438 (citations omitted). The chancellor concluded that Mary quit work to care for the household, was married to Robert for twenty-three years, had no separate income other than Robert’s support, and would lack the financial stability to maintain her share of the marital estate. Because of this and because Mary’s share of the marital estate was slightly less than Robert’s, she was awarded $42,157.60 in lump-sum alimony to make the division of the marital estate more equitable.

¶ 20. Based on our standard of review, we cannot find this determination to be reversible. The chancery court conducted a proper analysis of Mary’s need for alimony, whether lump-sum or periodic, and determined that lump-sum alimony was appropriate. Again, while an Armstrong analysis was not conducted, the chancery court nonetheless took all relevant factors into account in awarding lump-sum alimony as opposed to periodic alimony, and did so in an effort to maintain equitable division of the assets. As stated by the supreme court: “Alimony is not a bounty to which [a spouse] became entitled to receive indefinitely simply by reason of the fact that at one time [he or] she had been married to [the other spouse].” Beacham v. Beacham, 383 So.2d 146, 148 (Miss.1980) (citation omitted). This issue is meritless.

III. Awarding Costs

¶ 21. Finally, Mary argues that she should not have been forced to pay her litigation costs or the costs to repair and sell the marital home. In determining whether costs should be awarded to a party, the chancery court considers the equitable division of assets. See Hankins v. Hankins, 729 So.2d 1283, 1286 (¶ 13) (Miss.1999). Likewise, it is well settled that a chancery court has broad discretion in determining whether attorney’s fees should awarded. Dillon v. Dillon, 498 So.2d 328, 331 (Miss.1986). We review the award of costs under an abuse-of-discretion standard. Cheatham, 537 So.2d at 440.

¶ 22. Mary’s assertion that her cost of living requires the grant of litigation expenses is meritless. The chancery court determined that neither party had shown an inability to pay litigation expenses, especially after the division of the marital estate. The chancery court was in the best position to determine whether Mary should have been awarded costs, including those for the sale of the marital home and litigation expenses. The chancery court’s conclusion that it was fair and just for Mary to contribute to the costs of repairing and selling the marital home and litigation costs was not an abuse of discretion.

¶23. Likewise, as noted above, the parties’ estate was divided equitably based on several money-market accounts, personal property, and Robert’s business interests. The marital home was not included in the marital estate because the mortgages on the home exceeded the value of the home’s appraisal. In determining the allocation of repairing the marital home and marketing the home for sale, the chancery court reviewed the distribution of the parties’ wealth as well as the total cost of the repairs and sale. The chancery court ordered both parties to pay approximately $29,000 each. In so doing, the chancery court noted that Robert was to pay the mortgages and expenses of maintaining the home until the sale was final. Accordingly, Mary’s argument that it would be detrimental to her financial security to include her portion of the $29,000 is unfounded. She was awarded approximately $595,000 in the marital estate, including a $417,000 IRA. Additionally, had she chosen not to move to Oklahoma, her living expenses would have been , paid for by Robert. As such, her argument that her $6,500 a month current living expenses require more alimony and less costs is without merit.

¶ 24. THE JUDGMENT OF THE JACKSON COUNTY CHANCERY COURT IS AFFIRMED IN PART, AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: ROBERTS, J., CARLTON, J.,

text:
    Tommy James FAY a/k/a Tommy Jay Fay a/k/a Tommy Fay, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00261-COA.
    Court of Appeals of Mississippi.
    July 23, 2013.
    Rehearing Denied Nov. 12, 2013.
    Certiorari Denied March 6, 2014.

      Mollie Marie McMillin, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.

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

for the Court:

¶ 1. A jury sitting before the Forrest County Circuit Court found Tommy James Fay guilty of possession of a controlled substance. The circuit court sentenced Fay to eight years in the custody of the Mississippi Department of Corrections (MDOC), with two years suspended and six years to serve, followed by two years of post-release supervision. Aggrieved, Fay appeals. Fay claims there was insufficient evidence to convict him. Additionally, Fay claims the jury’s verdict is contrary to the overwhelming weight of the evidence. Finally, Fay claims the circuit court erred when it gave two of the prosecution’s jury instructions and refused one of his own proposed jury instructions. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 5, 2010, Deputy Tim Eu-banks of the Forrest County Sheriffs Department pulled over a pickup that was being driven erratically by Darrell Fay (Darrell). Darrell’s brother, Fay, was riding in Darrell’s passenger seat. Darrell admitted that he had no driver’s license or insurance. Deputy Eubanks asked Darrell to take a portable breath test. Darrell complied. Deputy Eubanks placed Darrell in custody. Deputy Eubanks left Darrell in the back of his patrol car.

¶ 3. Deputy Eubanks had told Darrell’s passenger, Fay, to put his hands on the dashboard. However, Deputy Eubanks noticed that Fay was moving around inside of Darrell’s truck. Deputy Eubanks went to the passenger side of Darrell’s truck and asked Fay for identification. Deputy Eubanks then told Fay to get out of Darrell’s truck. When Fay complied, a pill fell to the ground. Deputy Eubanks placed Fay in custody and patted him down. Deputy Eubanks found a small plastic bag in Fay’s front pocket. The plastic bag contained pill fragments. Keith McMahan of the Mississippi Crime Laboratory later identified the pill fragments as methadone after testing one of the pill fragments.

¶ 4. Fay was indicted for possession of between .1 gram and two grams of methadone. Fay pled not guilty. On October 20, 2011, Fay went to trial. The prosecution called Deputy Eubanks as its first witness. Next, Assistant Commander Nick Calico and Commander Greg Holli-man of the Twelfth Circuit Court Judicial Narcotics Team testified regarding the chain of custody of the pill fragments that Deputy Eubanks found on Fay. Finally, McMahan testified regarding his conclusion that the pill fragments contained .6 gram of methadone.

¶ 5. Fay called Darrell as his first witness. Darrell testified that he tried to throw the bag of pill fragments out of the passenger-side window when he saw that Deputy Eubanks was going to pull him over. According to Darrell, the bag did not go out of the window. Instead, the bag “wound up back in the truck in [Fay’s] lap.” Darrell went on to testify that when the bag did not go out of the window, he asked Fay to put the bag in his pocket. Darrell said that Fay complied. Fay also took the stand. He corroborated Darrell’s testimony. Fay also testified that Darrell had a drug problem in the past. Even so, Fay concealed the bag of pill fragments at Darrell’s request. The jury found Fay guilty of possession of between .1 gram and two grams of methadone. Following unsuccessful motions for a judgment notwithstanding the verdict (JNOV) or a new trial, Fay appeals.

ANALYSIS

I. SUFFICIENCY OF THE EVIDENCE

¶ 6. Fay claims that there was insufficient evidence to convict him of possession of methadone. As our Mississippi Supreme Court has stated:

[I]n considering whether the evidence is sufficient to sustain a conviction in the face of a motion for [a] directed verdict or for [a JNOV], the critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction. ... [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Should the facts and inferences considered in a challenge to the sufficiency of the evidence point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render.

Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (internal citations and quotations omitted). However, this Court will determine that there was sufficient evidence to sustain the jury’s verdict if the evidence was “of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense.” Id. (citations and quotations omitted).

¶ 7. Fay notes that he had a bag that contained pill fragments, and he was charged with having between .1 gram and two grams of a controlled substance or between two and ten dosage units of a controlled substance. McMahan testified that the bag of pill fragments contained .6 gram of methadone. “For any controlled substance that does not fall within the definition of the term ‘dosage unit,’ the penalties shall be based upon the weight of the controlled substance.” Miss.Code Ann. § 41-29-139(c) (Supp.2012). Section 41-29-139(c) further provides that “[t]he weight set forth refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance.”

¶ 8. Fay draws attention to the fact that McMahan tested one pill fragment. McMahan did not test each pill fragment. And McMahan did not note the weight of the fragment that he tested. Based on the presence of methadone in that fragment, McMahan used a gas chromato-graph and mass spectrometer (GCMS) to conclude that Fay possessed .6 gram of methadone. Fay reasons that because the prosecution did not test each pill fragment for methadone, the prosecution failed to present sufficient evidence that Fay possessed between .1 gram and two grams of methadone.

¶ 9. Neither Fay nor the State cite any Mississippi cases that have addressed this issue. We turn to other jurisdictions for persuasive guidance. In People v. Adair, 406 Ill.App.3d 133, 346 Ill.Dec. 292, 940 N.E.2d 292, 295 (2010), the Appellate Court of Illinois was confronted with a somewhat similar set of circumstances. The Adair court noted Illinois precedent that “[a] forensic chemist is generally not required to test all of the suspected narcotic substance to opine that the recovered substance as a whole contains narcotics.” Id. at 297 (citation omitted). Furthermore, “[r]andom testing is permissible when the seized samples are sufficiently homogeneous so that one may infer beyond a reasonable doubt that the untested samples contain the same substance as those that are conclusively tested.” Id. (citation omitted).

¶ 10. The specific issue in Adair involved circumstances in which a forensic scientist was tasked with testing twenty-one pills, three pill fragments, and a powdered substance. Id. at 295. The pills were five different colors and had three different imprints. Id. The forensic scientist created a “representative sample” by poking each pill with a glass tip to retrieve a powdered sample and then adding each sample together. Id. The forensic scientist then used a GCMS to determine that the “representative sample” contained methamphetamine and the narcotic abbreviated as MDMA. Id. at 295-96. According to the forensic scientist, the total weight of the variously colored and marked pills and the powdered substance was 6.3 grams. Id. at 295. However, based on the forensic scientist’s testing methodology, the Adair court held that there was insufficient evidence to conclude that the accused was guilty of possession of at least fifteen dosage units of MDMA or possession of more than five grams of methamphetamine. Id. at 301.

¶ 11. We find the Illinois court’s reasoning persuasive. Unlike the pills in Adair, the pill fragments in this case were the same color. Additionally, the pill fragments bore the same marking. McMahan testified that based on the markings on the pill fragments, he was able to determine that they originated from Malinckrodt Pharmaceuticals. Based on the relatively homogeneous nature of the pill fragments, it was not necessary for McMahan to test every pill fragment. Consequently, we find that there was sufficient evidence for the jury to conclude that Fay possessed between .1 gram and two grams of methadone. There is no merit to this issue.

II. WEIGHT OF THE EVIDENCE

¶ 12. Fay argues that the circuit court erred when it overruled his motion for a new trial. This Court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18) (citation omitted). The supreme court has further instructed that when reviewing a trial court’s decision to deny a motion for a new trial:

The motion ... is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather, ... the court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

Id. (footnote, internal citations, and quotations omitted).

¶ 13. Fay reiterates his defense at trial. Briefly stated, Fay argues that the verdict was contrary to the overwhelming weight of the evidence because he and Darrell both testified that the pill fragments actually belonged to Darrell. That is, when Darrell realized that he was going to be pulled over, he attempted to throw the bag of pill fragments out of the passenger-side window. When the bag of pill fragments did not go out of the window, Darrell asked Fay to put them in his pocket, and Fay complied. Fay testified that Darrell had used drugs in the past. During cross-examination, the following exchange occurred:

Q. So you want the jury to believe that you had no idea you were sticking something illegal in your pocket knowing your brother had a drug problem and with a police officer with his blue lights on coming up behind you to pull you over?
A. Yes, sir, that’s what I want the jury to believe.
Q. And none of that kind of set off alarm bells in your head that this may be something I ought not to be messing with?
A. No, not really. He hadn’t been showing [any] signs of drug use, and he’s been living with me.
Q. Mr. Fay, your brother[,] who you know ... at least in the past has had a drug problem[,] is pleading with you to put this in your pocket at the same time that you’re being pulled over[,] and it never entered your mind that what you were doing was potentially illegal?
A. No, sir.

Fay was forty-six years old at the time of his trial. Before Deputy Eubanks searched Fay, he noticed a bulge in Fay’s pocket. Deputy Eubanks asked Fay what he had in his pocket. Fay denied that he had anything in his pocket. Deputy Eu-banks then removed the bag of pill fragments from Fay’s pocket. Accordingly, Fay had dominion and control over the bag of pill fragments: Furthermore, “[t]he jury determines the weight and credibility of witness testimony.” Nelson v. State, 10 So.3d 898, 905 (¶ 29) (Miss.2009). Under the precise circumstances of this case, the jury could have chosen not to believe Fay’s testimony. Suffice it to say, it would not sanction an unconscionable injustice to affirm the jury’s verdict. We find no merit to this issue.

III. JURY INSTRUCTIONS

¶ 14. Fay claims the circuit court erred when it refused one of his proposed jury instructions and gave two of the prosecution’s proposed jury instructions. According to Fay, the circuit court’s decisions deprived him of the opportunity to present his defense theory. Jury instruction issues “generally are within the discretion of the trial court.” Maye v. State, 49 So.3d 1124, 1129 (¶ 7) (Miss.2010). The Mississippi Supreme Court has instructed:

In determining whether error lies in the [giving] or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. There is no error if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law.

Id. Additionally, “a defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Id.

A. Proposed Jury Instruction D-4

¶ 15. Fay claims the circuit court erred when it refused proposed jury instruction D^i, which states:

The [e]ourt instructs the jury that possession of a controlled substance cannot be established when the only evidence connecting the [a]ccused to the substance is the momentary holding of the substance.
If you find from the evidence that ... Fay momentarily held the substances in question at the request of [Darrell] ... and without knowledge of what the substances were[,] then you shall find ... Fay not guilty of possession of a controlled substance.

The circuit judge refused proposed jury instruction D-4 because he did “not think this is a case of momentary possession” because Fay “took possession and maintained possession” of the bag of pill fragments. According to Fay, by refusing proposed jury instruction D-4, the circuit court deprived Fay of his defense theory.

¶ 16. “[Possession requires actual or constructive control, not a mere passing control which occurs from a momentary handling.” Mauldin v. State, 750 So.2d 564, 566 (¶ 8) (Miss.Ct.App.1999) (citation omitted). The evidence did not support proposed jury instruction D-4. Even under Fay’s version of events, Fay took possession of the bag of pill fragments and maintained control of it. It was proper for the circuit court to refuse a proposed jury instruction that was not supported by the evidence.

B. Jury Instruction S-3

¶ 17. According to Fay, the circuit court erred when it gave two of the prosecution’s jury instructions. Jury instruction S-3 instructed the jury that “if you believe that the substance was subject to [Fay’s] dominion and control, it is your duty as jurors to find him guilty as charged.” Fay claims that jury instruction S-3 was essentially a peremptory instruction that omitted the other essential elements to convict Fay of possession of a controlled substance. Fay cites Banyard v. State, 47 So.3d 676 (Miss.2010), to support his argument that a defendant is entitled to have instructions on his defense theory. However, the reversible error in Banyard was related to a jury instruction that improperly shifted the burden of proof to the defendant. See id. at 684 (¶ 22).

¶ 18. Jury instruction S-3 did not shift the burden of proof to Fay. And although it did not include all of the elements necessary to find Fay guilty of possession of between .1 gram and two grams of methadone, the other necessary elements were included in other jury instructions. When read together, the jury instructions properly instructed the jury regarding what it must find to convict Fay.

C. Jury Instruction S-4

¶ 19. Finally, Fay argues that the circuit court erred when it gave jury instruction S-4, which states:

The [j]ury is instructed that when weight of a narcotic drug is discussed, it is not necessary for the State to prove the pure weight of a narcotic drug separate and apart from any mixture that contains a detectable amount of the charged substance.
If you believe beyond a reasonable doubt that the total mixture weight was accurate as testified under oath, then you shall consider that weight to be the weight of the narcotic drug as charged in the indictment.

According to Fay, jury instruction S-4 was improper because McMahan did not test each of the pill fragments. In other words, Fay reiterates his argument regarding the sufficiency of the evidence. We addressed that argument in Fay’s first issue. Because of the homogeneous nature of the pill fragments, it was not necessary for McMahan to test every individual pill fragment. There is no merit to this issue.

¶ 20. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF BETWEEN .1 GRAM AND TWO GRAMS OF A CONTROLLED SUBSTANCE AND SENTENCE OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWO YEARS SUSPENDED AND SIX YEARS TO SERVE, FOLLOWED BY TWO YEARS OF POST-RELEASE SUPERVISION, AND A $2,500 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P JJ., ISHEE, MAXWELL AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY JAMES, J.

CARLTON, J.,

concurring in result only:

¶ 21. Instruction S-B incorrectly instructed the jury that Fay could be found guilty without requiring the jury to find proof of all the elements, such as “knowing” possession. The instruction therefore constitutes a defective instruction. However, I submit that this error fails to constitute reversible error since no miscarriage of justice occurred. Accordingly, I would find the giving of the disputed instruction, S-3, was error, but only harmless error, since the other necessary elements were included in other instructions, and Fay suffered no prejudice. Beale v. State, 2 So.3d 693, 699 (¶ 19) (Miss.Ct.App.2008) (“[A]n instructional error will not warrant reversal if the jury was fully and fairly instructed by other instructions.”). To assure that jurors are cognizant of each element of the offense, instructions defining the offense, and providing its required elements, should contain an enumeration of all of the elements. For these reasons, I concur in result only.

JAMES, J., JOINS THIS OPINION IN PART.


author: LEE, C.J.,

text:
    Jimmy HARRIS, Appellant v. MISSISSIPPI PAROLE BOARD, Appellee.
    No. 2012-CP-01409-COA.
    Court of Appeals of Mississippi.
    July 23, 2013.
    Rehearing Denied Nov. 19, 2013.
    Certiorari Denied March 6, 2014.
    Jimmy Harris, appellant, pro se.
    Office of the Attorney General by R. Stewart Smith Jr., attorney for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Jimmy Harris is an inmate in the Mississippi Department of Corrections and is serving a life sentence with parole eligibility. While he has been considered for parole on several occasions, he was denied each time. His most recent denial was on December 7, 2011. He appealed that denial by filing a petition for writ of habeas corpus ad subjiciendum in the Rankin County Circuit Court. The trial court dismissed the petition because it lacked jurisdiction. This appeal followed.

STANDARD OF REVIEW

¶ 2. “On appeal, this Court reviews the trial court’s dismissal of a lawsuit based on a question of law under a de novo standard of review.” Rochell v. State, 36 So.3d 479, 481 (¶ 7) (Miss.Ct.App.2010).

DISCUSSION

¶ 3. The Mississippi State Parole Board (Board) has “absolute discretion” to grant or deny parole within the parameters of Mississippi Code Annotated section 47-7-3 (Rev.2011). Cotton v. Miss. Parole Bd., 863 So.2d 917, 921 (¶ 11) (Miss.2003). Under Mississippi Code Annotated section 47-7-5(3) (Supp.2012), “[t]he [Bjoard shall have exclusive responsibility for the granting of parole as provided by [sjections 47-7-3 and 47-7-17 and shall have exclusive authority for revocation of the same.” An inmate has “‘no constitutionally recognized liberty interest’ in parole.” Edmond v. Hancock, 830 So.2d 658, 660 (¶ 5) (Miss.Ct.App.2002) (quoting Vice v. State, 679 So.2d 205, 208 (Miss.1996)). “Additionally, there is no statutory right of appeal from the denial of parole. However, the trial court may assert jurisdiction over those claims which raise constitutional issues.” Rochell, 36 So.3d at 482 (¶ 9) (internal citations omitted).

¶4. Harris claims that the trial court erred in dismissing his complaint. Specifically, he argues that his due-process rights were violated when the Board denied him parole because of his institutional disciplinary reports. Under section 47-7-5(3), the Board had absolute discretion to deny Harris parole. The trial court found that the claims Harris raised in his petition were not constitutional claims that would have given the court jurisdiction to hear the matter, and we agree. See Rochell, 36 So.3d at 483 (¶ 12). He does not argue that his fundamental rights have been violated. Because the trial court lacked jurisdiction to consider Harris’s claim, we find that the trial court did not err by dismissing Harris’s complaint.

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

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


author: CARLTON, J.,

text:
    Stanley LUSTER a/k/a Stanley “Rico” Luster a/k/a Stanley Aaron Luster, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00645-COA.
    Court of Appeals of Mississippi.
    July 30, 2013.
    Rehearing Denied Jan. 7, 2014.
    Certiorari Denied March 13, 2014.

      George T. Holmes, Jackson, Thomas Roy Trout, New Albany, Benjamin Allen Súber, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before IRVING, P.J., CARLTON and JAMES, JJ.
   CARLTON, J.,

for the Court:

¶ 1. A Lafayette County jury found Stanley Luster guilty of burglary of a dwelling, and the circuit court sentenced him as a habitual offender to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC). Luster now appeals the Lafayette County Circuit Court’s denial of his motion for a new trial or, in the alternative, a judgment notwithstanding the verdict.

FACTS

¶ 2. On February 26, 2011, Carrice Buchanan, who lives at 405 South 15th Street, Apartment B, Oxford, Mississippi, witnessed an older African American male standing at the front door of Apartment D of Buchanan’s building. Buchanan stated that she also observed a white car parked in front of the apartment complex. Buchanan testified that the driver of the car seemed to be watching her, and she stated that the car eventually pulled away and entered the parking lot across the street. Buchanan and her boyfriend proceeded to enter her apartment.

¶ 3. James Richardson, the occupant of Apartment C of Buchanan’s building, testified that on the evening of February 26, 2011, he observed an African American man carry a television out of his neighbor’s apartment. Richardson left his apartment to meet some friends, but grew suspicious when he saw the man sitting on the steps of his apartment building, because he knew the man was neither a tenant nor a frequent visitor. Richardson walked across the street and hid behind a truck, where he then watched the man approach Michael Gresham’s apartment, open the door, turn the outside lights off, and enter the apartment. Richardson called the police to report a burglary.

¶ 4. While on the phone with the police, Richardson testified that he observed the man walk out of the apartment carrying a television set, place the television set down next to a light pole, and then walk down the street. Officer Alex Stratton of the Oxford Police Department soon arrived on the scene, and Richardson got into the police car. They proceeded to University Avenue, where Richardson saw the man head after setting down the television. Richardson and Stratton pulled into the McAllister’s restaurant parking lot, where Richardson spotted Luster and identified him as the individual who broke into Gresham’s house. Luster was arrested and subsequently indicted for burglary of a dwelling under Mississippi Code Annotated section 97-17-23 (Rev.2006).

¶ 5. At trial, defense counsel claimed Luster’s innocence and stated Luster had been in the McAllister’s parking lot for twenty minutes talking on the phone to his girlfriend. After the trial held on July 25, 2011, a Lafayette County jury found Luster guilty of burglary of a dwelling under Mississippi Code Annotated section 97-17-23. The trial court sentenced Luster as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007) to twenty-five years in the custody of the Mississippi Department of Corrections. Luster filed a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict, which the trial court denied.

¶ 6. Luster appeals his conviction and sentence, claiming that the verdict was against the overwhelming weight of the evidence and that the trial court erred in sentencing him as a habitual offender.

STANDARD OF REVIEW

¶ 7. We review the denial of a post-trial motion seeking a new trial under an abuse-of-discretion standard. Dilworth v. State, 909 So.2d 731, 736 (¶ 17) (Miss.2005).

DISCUSSION

I. Weight of the Evidence

¶ 8. Luster argues that the jury verdict was against the overwhelming weight of the evidence. Luster asserts that the evidence and testimony presented at trial cannot show that he was in fact the person who committed the burglary on the night of February 26, 2011. Our supreme court has established that when reviewing whether a jury verdict is against the overwhelming weight of the evidence, an appellate court will not grant a new trial “unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice.” McLendon v. State, 945 So.2d 372, 385 (¶ 40) (Miss.2006) (citing Groseclose v. State, 440 So.2d 297, 300 (Miss.1983)). On appellate review, we weigh the evidence in the light most favorable to the verdict. Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005).

¶ 9. Luster claims that Buchanan’s trial testimony, wherein she testified that on the night of the burglary, she saw an older African American man outside of the apartment building where she and Gresham both live, failed to identify Luster as that individual outside of the apartment building. Luster also attacks Richardson’s testimony, claiming that although Richardson testified to witnessing an African American man remove a television from Gresham’s house, Richardson did not even see the alleged perpetrator’s face until Richardson left the building and hid behind a truck across the street. Luster asserts that at trial, Richardson could not confidently describe what the perpetrator was wearing. Luster further argues that Detective Jeff McCutchen of the Oxford Police Department testified that he attempted to lift fingerprints off of the stolen television, but that he failed to remove any identifying prints.

¶ 10. As stated, when reviewing whether a jury verdict is against the overwhelming weight of the evidence, we view the evidence in the light most favorable to the verdict. See Bush, 895 So.2d at 844 (¶ 18). We further acknowledge that in Stephens v. State, 911 So.2d 424, 436 (¶ 38) (Miss.2005), the supreme court explained that “[a]ny conflicts in the testimony of witnesses is the province of the jury.... Who the jury believes and what conclusions it reaches are solely for its determination.” (Internal citation omitted).

¶ 11. Here, the jury heard testimony from Buchanan, Richardson, Gresham, Officer Stratton, and Detective McCutchen. The jury also heard Detective McCutchen explain at trial that various factors affect the ability to pull an identifying print off of an object, including the texture of the object, a person’s hands, and even the weather conditions outside. Detective McCutchen said that when picking up a television, especially a heavy flat-screen television like the one stolen from Gresham’s apartment, a person’s hands can slide down the panel, removing any identifying fingerprints.

¶ 12. Additionally, the record reflects that Detective McCutchen testified that he interviewed Luster after his arrest. Luster’s statement to Detective McCutchen reflected Luster’s version of the events: that on February 26, 2011, he walked to McAllister’s to buy a sandwich, and had been in the parking lot for twenty minutes talking on the phone when the police arrived. However, the transcript reflects that Detective McCutchen checked the surveillance video from a nearby business, which showed the McAllister’s parking lot. The video revealed that Luster had not been in the parking lot talking on the phone prior to being apprehended. Buchanan also identified Luster’s car as the car that she had observed parked outside of her apartment complex on February 26, 2011.

¶ 13. After our review, we do not find that the verdict is against the overwhelming weight of the evidence such that to allow the verdict to stand would sanction an unconscionable injustice. See McLendon, 945 So.2d at 385 (¶ 40). We find that substantial credible evidence exists in the record to support the jury’s verdict convicting Luster of burglary of a dwelling. This issue is without merit.

II. Habitual-Offender Status

¶ 14. Luster next argues that the trial court erred in finding that he constituted a habitual offender for sentencing purposes. Luster states that before serving as the circuit court judge in this matter, Judge John Andrew Gregory served as an assistant district attorney. During his tenure as assistant district attorney, Judge Gregory signed the indictment for one of the felonies that was used in order for the State to qualify Luster as a habitual offender. Luster claims that as a result, Judge Gregory was not qualified to sit as judge in this matter. Luster relies on Banana v. State, 638 So.2d 1329 (Miss.1994), in support of his argument.

¶ 15. However, this Court has recognized that the issue in Banana was limited to situations where the judge rules on a motion for post-conviction relief even though he served as a prosecutor on the very same charge the movant seeks to set aside. Id. In Ryals v. State, 914 So.2d 285, 286 (¶ 7) (Miss.Ct.App.2005), this Court stated that “[disqualification is required when a judge formerly served as a lawyer in the same case.” (Citations omitted).

¶ 16. The State argues that Luster’s previous conviction was not a matter in controversy for purposes of disqualification. The State cites to Brown v. State, 829 So.2d 93, 96-100 (¶¶ 6-14) (Miss.2002), where the supreme court held that where a judge who was once a prosecutor and who, as prosecutor, signed an indictment in a case which results in a felony conviction later used for habitual-offender sentencing, that judge is not disqualified from presiding over the habitual-offender sentencing hearing. Accordingly, we find no abuse of discretion in the circuit court’s denial of Luster’s post-trial motions.

¶ 17. THE JUDGMENT OF THE LAFAYETTE COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE AS A HABITUAL OFFENDER OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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