author: GRIFFIS, P.J.,

text:
    WOODKREST CUSTOM HOMES INC. and Robert Kress Sr., Appellants, v. James COOPER and Sandra Cooper, Appellees.
    No. 2011-CA-00340-COA.
    Court of Appeals of Mississippi.
    Jan. 22, 2013.

      Joe Morgan Wilson, Senatobia, attorney for appellants.

      Thomas Wicker, Joshua Shey Wise, Tu-pelo, attorneys for appellees.
   GRIFFIS, P.J.,

for the Court:

¶ 1. This is the second time this Court has considered the appeal of the lawsuit that James and Sandra Cooper filed against Woodkrest Custom Homes Inc., Nationwide Custom Construction LLC, and Robert Kress Sr., individually (the “Defendants”). In Woodkrest Custom Homes Inc. v. Cooper, 24 So.3d 340, 347 (¶ 30) (Miss.Ct.App.2009), this Court vacated the award of damages in the default judgment and remanded the case for the circuit court to conduct an on-the-record hearing on damages.

¶ 2. On remand, the circuit court entered a judgment and awarded compensatory damages, emotional-distress and mental-anguish damages, punitive damages, and attorney’s fees. The defendants return to this Court with an appeal of that judgment. Here, the Defendants argue that the circuit court erred when it: (1) awarded damages for emotional distress and mental anguish; (2) awarded punitive damages; (3) did not consider the Defendants’ financial condition and net worth; and (4) awarded attorney’s fees based on the award of punitive damages. Having considered the circuit court’s judgment, we reverse and render in part and affirm in part as set forth below.

FACTS

¶ 3. The Coopers entered into a contract with Woodkrest for the construction of their home. Nationwide was to serve as the contractor and builder.

¶ 4. The Coopers’ complaint alleged that materials were not produced, a deposit was never made to secure the price of an elevator, and the project was not adequately supervised or timely constructed. The Coopers asserted claims for breach of contract, negligent and fraudulent misrepresentation, misappropriation, and conversion of money. The complaint did not request a specific sum for damages. The complaint did not allege a claim for intentional infliction of emotional distress.

¶ 5. The Defendants were served with process and failed to respond. Upon proper request, the clerk entered a default, and the Coopers filed a motion for a default judgment. Attached to the motion was an affidavit that asked for “$119,387.14 [in] compensatory damages, together with $268,161.42 in punitive damages, $5,000 [in] attorney’s fees and expenses, pre-judgment and post-judgment interest and all costs incurred herein.”

¶ 6. The affidavit also stated, “Defendants, through their intentional misrepresentations and abandonment of this project have caused delays of at least six months in completing the project for which the Plaintiffs should be entitled to a minimum of $30,000 compensation.” The affidavit was the first mention of the request for $30,000, which evolved into a request for mental-anguish damages based on delay and misrepresentations.

¶ 7. The circuit court entered a default judgment. The judgment awarded damages in the amount of $119,387.14 in compensatory damages, together with $268,161.42 in punitive damages, $5,000 in attorney’s fees and expenses, and prejudgment and post-judgment interest at the legal rate. The judgment did not award any damages for emotional distress.

¶ 8. The Defendants filed a motion to set aside the default judgment, which the circuit court denied. Upon appeal, this Court affirmed the denial of the motion to set aside the default judgment but vacated the award of damages in the default judgment and remanded the case for the circuit court to conduct an on-the-record hearing on damages. Id. This Court ruled:

The Defendants’ final argument is that the circuit court erred when it awarded the Coopers unliquidated damages without a hearing on the record. The Coopers claim that the damages are primarily liquidated damages and that there was a hearing on May 4, 2006, to determine damages.
In [Greater Canton Ford Mercury, Inc. v. Lane, 997 So.2d 198, 206 (¶ 30) (Miss.2008) ], the supreme court held:
The assessment of damages is a finding of fact, and the appellate court reviews an award of damages under the clearly erroneous standard. This Court has stated that damage awards are only overturned when the trial judge has abused his discretion or in exceptional cases where such awards are so gross as to be contrary to right reason. The appellate court must review the damages award by looking to the “facts of each case.”
(Internal quotations and citations omitted). “An on-the-record hearing must be held prior to the entry of default judgment under which unliquidated damages are requested.” Capital One Servs. v. Rawls, 904 So.2d 1010, 1018 (¶ 26) (Miss.2004).
Here, the circuit court awarded the Coopers $119,387.14 in compensatory damages, which included $30,000 for the delay in construction; $268,161.42 in punitive damages; and $5,000 in attorney’s fees. The Coopers argue that the circuit court conducted a hearing on damages. However, if there was a hearing on damages, it was not included in the record.
The Coopers also claim that the damages awarded were primarily liquidated damages. We disagree. Liquidated damages are those that “are set or determined by a contract when a breach occurs. Unliquidated damages are damages that have been established by a verdict or award but cannot be determined by a fixed formula, so they are left to the discretion of the judge or jury.” Moeller v. Am. Guar. & Liab. Ins. Co., 812 So.2d 953, 959 (¶ 18) (Miss.2002) (internal quotations omitted).
After a review of the record before us, this Court is unable to reconcile mathematically the award for compensatory damages with the worksheet^] “Funds due from Woodkrest Custom Homes,” which was attached to the Coopers’ motion for [a] default judgment. Furthermore, the circuit court awarded the Coopers $30,000 in unliquidated damages and $268,161.42 in punitive damages.
The supreme court has recognized that:
Although punitive damages are not ordinarily recoverable in cases involving breach of contract, they are recoverable where the breach results from an intentional wrong, insult, or abuse as well as from such gross negligence as constitutes an independent tort. In these instances, they act to punish, and are to set an example, thereby discouraging others from similar behavior. As such, punitive damages are allowed only with caution and within narrow limits.
Before punitive damages can be recovered from the defendant, the plaintiff must prove by a preponderance of the evidence that the defendant acted with (1) malice, or (2) gross negligence or reckless disregard for the rights of others.
Hurst v. Sw. Miss. Legal Servs. Corp., 708 So.2d 1347, 1350 (¶ 6) (Miss.1998) (internal citations and quotations omitted). The punitive damages awarded were unliquidated damages because they were not set or determined by a contract when the breach occurred. Further, there is no finding by the circuit court that the Defendants acted with malice or gross negligence or reckless disregard for the rights of others.
Accordingly, we vacate the default judgment insofar as the award of damages, and we remand this case based on the circuit court’s failure to conduct an on-the-record hearing regarding damages and instruct that such hearing on damages be held.

Woodkrest Custom Homes, 24 So.3d at 346-47 (¶¶ 24-30).

¶ 9. On April 13, 2010, the circuit court held a hearing on damages. On January 14, 2011, the circuit judge executed the court’s findings of fact and conclusions of law, which were filed on January 18, 2011 (the “Judgment”). The court determined that the Coopers were entitled to an award of damages in the amount of: $75,977.32 for compensatory damages, $30,000 for emotional-distress and mental-anguish damages, $100,000 in punitive damages, and $29,798.86 in attorney’s fees. The Defendants have timely appealed.

STANDARD OF REVIEW

¶ 10. The standard of review for a judgment entered after a bench trial is well settled. “A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor[.]” Turner v. Terry, 799 So.2d 25, 30 (¶ 10) (Miss.2001) (citation omitted). The circuit judge’s findings will be upheld on appeal “so long as the ruling is supported by substantial, credible, and reasonable evidence.” Callahan v. Ledbetter, 992 So.2d 1220, 1230 (¶ 25) (Miss.Ct.App.2008). We review questions of law de novo. Warren v. Derivaux, 996 So.2d 729, 735 (¶ 10) (Miss.2008).

ANALYSIS

¶ 11. The Appellants’ brief raises four issues. None of the issues contest the award of compensatory damages.

1. Whether the court erred in awarding $30,000 in damages for mental anguish and emotional distress.

¶ 12. In the first issue, the Defendants appeal the following finding by the court:

Dr. and Mrs. Cooper also claim damages for mental anguish and emotional distress arising out of the actions of the Defendants. In order to be entitled to damages for mental anguish and emotional distress in the absence of physical contact or verifiable physical injury, the proof must demonstrate that the Defendant’s actions were of such a nature to arise to the commission of an intentional tort. Wilson v. Gen. Motors Acceptance Corp., 883 So.2d 56, 65 [ (¶ 84) ] (Miss.2004).

¶ 13. The complaint does not assert a claim for mental anguish or emotional distress. The complaint asserts claims for breach of contract, misrepresentation, conversion, misappropriation, and for an accounting. The complaint also asks “for all money which may be due ... together with punitive damages, and attorney’s fees. Mississippi Rule of Civil Procedure 9(g) requires that “[w]hen items of special damage are claimed, they shall be specifically stated.” The claim for damages for mental anguish or emotional distress are special damages, which must be plead. They were not. However, the Defendants did not raise this matter before the circuit court, and do not raise it here. Therefore, we will not grant relief on grounds not presented to the circuit court, and such objection is waived.

¶ 14. We recognize that the default judgment has been entered. “When a judgment by default is entered, it is treated as a conclusive and final adjudication of the issues necessary to justify the relief awarded and is given the same effect as a judgment rendered after a trial on the merits.” M.R.C.P. 55 cmt. Therefore, the Coopers’ claims for breach of contract, misrepresentation, conversion, misappropriation, punitive damages, and for an accounting, which were asserted in the complaint, have been properly established.

¶ 15. “A judgment entered pursuant to [Mississippi] Rule [of Civil Procedure] 55(b) may be reviewed on appeal to the same extent as any other judgment^]” M.R.C.P. 55 cmt. In this appeal, we review the award of damages to determine if the damages awarded were proper based on the findings of fact and conclusions of law entered by the court to support the award.

¶ 16. The supreme court has held that damages for emotional distress are not recoverable in a breach-of-contract claim unless there is a finding of a separate independent intentional tort. Univ. of S. Miss. v. Williams, 891 So.2d 160, 172 (¶ 30) (Miss.2004). The court held that for emotional-distress damages in a breach-of-contract action, a plaintiff must show:

(1) that mental anguish was a foreseeable consequence of the particular breach of contract, and (2) that he or she actually suffered mental anguish. Such generalizations as “it made me feel bad[]” or “it upset me” are not sufficient. A plaintiff must show specific suffering during a specific time frame.

Id. at 173 (¶ 31).

¶ 17. Here, before construction began, the Coopers paid the Defendants the sum of $186,997.80 for the Defendants to buy materials. This included payment for windows and doors. When it was almost time for the window installations, the windows had not been delivered. Dr. Cooper questioned the Defendants about this through a fax. A couple of weeks later, Dr. Cooper called Kress and asked if the windows had been ordered. According to Dr. Cooper, Kress answered that he would check with the factory and find out when they would be delivered. Dr. Cooper called the Defendants multiple times and was led to believe that the windows had been ordered. After several months, it was apparent the windows had not been ordered. Yet, the Defendants never refunded the Coopers’ money. Kress testified that the windows were not ordered because the Coopers were constantly making changes.

¶ 18. The Coopers also paid the Defendants the sum of $13,000 as a down payment for an elevator. The Defendants were to- send the $13,000 to the manufacturer to secure the elevator’s delivery. According to Dr. Cooper, the manufacturer said that it had not received the down payment. The Defendants told Dr. Cooper there must have been a mistake, and they would send the money. They never did. As a result, Dr. Cooper paid $1,250 more for the elevator because the Defendants had not secured the price as promised. The Defendants testified that their bookkeeper made a mistake and was fired. However, the Defendants never refunded the money to Dr. Cooper.

¶ 19. Further, the contract provided for an addition of fifteen percent to labor invoices. The invoices mathematically included the addition of 17.6%. The Defendants had divided by .85, instead of multiplying by .15 and then adding. Dr. Cooper confronted Kress about this mistake. Nevertheless, Dr. Cooper continued to pay the invoices with the addition of 17.6% because they could not agree what fifteen percent meant when they signed the contract.

¶ 20. The court also concluded that the Defendants exaggerated the extent of the Coopers’ requested changes. The circuit court found this exaggeration affected its determination of witness credibility. Kress testified that they had to tear up the foundation to make some of the Coopers’ requested changes. Then, Kress admitted he did not recall that any of the Coopers’ requested changes required the foundation work to be torn up and reworked. Kress testified that “these particular changes were requested apparently before the slab was poured.”

¶21. Dr. Cooper’s wife, Sandra, suffered from severe fibromyalgia. The house plans included an endless swimming pool with heat and controllable current to help reheve pain that accompanied her disease. Dr. Cooper told the Defendants about the pool’s purpose. The Coopers argue the Defendants’ misrepresentations were intentional. They argue the misrepresentations produced delay, and the delay caused distress.

¶ 22. This Court reviews the evidence that supports the circuit court’s finding to determine whether it is “supported by substantial, credible, and reasonable evidence.” Callahan v. Ledbetter, 992 So.2d 1220, 1230 (¶25) (Miss.Ct.App.2008). Damages for emotional distress or mental anguish, where there is no physical injury, can only be awarded where the “defendant’s conduct is outrageous or ‘evokes outrage or revulsion.’ ” Wilson, 883 So.2d at 65 (¶34) (citation omitted). “[T]he standard is whether the defendant’s behavior is malicious, intentional, willful, wanton, grossly careless, indifferent or reckless.” Leaf River Forest Prods., Inc. v. Ferguson, 662 So.2d 648, 659 (Miss.1995). It appears that there is evidence to support the circuit court’s conclusion that the Defendants’ conduct was such that would support an independent tort or punitive damages.

¶ 23. Regardless, to recover damages, the Coopers must establish that they actually suffered mental anguish and emotional distress. Williams, 891 So.2d at 173 (¶ 31). Because they seek such damages in a breach-of-contract action, the Coopers “must provide more than general declarations of emotional distress” and must “show specific suffering during a specific time frame.” Id. at (¶¶ 31, 33).

¶ 24. Dr. Cooper’s testimony to support damages for mental anguish and emotional distress was limited, conclusory, and vague. There were no specific examples, specific time frames, or specific details of suffering. No witness testified about how the delay affected Dr. Cooper and Sandra. Dr. Cooper only testified that the delay “was somewhat distressing.” There was no testimony on how the delay and the misrepresentations worsened Sandra’s condition. Dr. Cooper only testified that his “wife’s health was not good” and that she had “subsequent problems now.” He did not testify specifically how her health had deteriorated, what kind of subsequent problems arose, or how those problems affected her.

¶25. We find that the allegations to support an award of damages for mental anguish and emotional distress were vague and inadequate. Such generalizations are insufficient as a basis for a damages award for emotional distress and mental anguish. Id. at (¶ 31). The Coopers failed to meet the second prong of Williams. The Coopers did not show that any mental anguish and emotional distress was a foreseeable result of the Defendants’ actions or inac-tions. Id.

¶ 26. Also, there was an error of law in the circuit court’s findings of fact and conclusions of law. To award damages for mental anguish and emotional distress, the circuit court pointed to the fact that the Defendants did not set up a trust account. The circuit court then found that the Defendants should have held the money paid under the contract in trust for the Coopers. The circuit court held this failure to hold funds in trust resulted in a breach of trust and fiduciary duties. This is not a correct application of Mississippi law.

¶27. Where the relationship is contractual, such as that of a lessor/lessee, a fiduciary relationship does not arise. Pursue Energy Corp. v. Abernathy, 77 So.3d 1094, 1100 (¶ 22) (Miss.2011). Typical fiduciary relationships are “physician and patient, attorney and client, guardian and ward, and trustee and cestui que trust.” Hendricks v. James, 421 So.2d 1031, 1041 (Miss.1982).

¶ 28. The circuit court essentially held suppliers, builders, and contractors to the duties owed by doctors, lawyers, and partners. There is simply no authority to support this conclusion.

¶ 29. The Coopers and the Defendants were parties to a contract. The Coopers bargained with the Defendants to pay for the delivery of certain materials. The Defendants bargained to provide the materials according to the contract’s terms. The Defendants simply failed to perform. The Defendants breached the contract. This was not a breach of fiduciary duty because no fiduciary duty arose.

¶ 30. For these reasons, we find that an award of damages for mental anguish and emotional distress was in error. As to the award of $30,000 for such damages, we reverse and render the circuit court’s judgment.

2. Whether the court erred in granting punitive damages against the Defendants.

¶ 31. The Defendants argue that the record is devoid of any testimony or allegations of outrageous conduct or mistreatment of the Coopers by the Defendants. Therefore, the Defendants claim that any claim for punitive damages is without foundation.

¶ 32. As discussed above, we must recognize that the default judgment has been entered. ‘When a judgment by default is entered, it is treated as a conclusive and final adjudication of the issues necessary to justify the relief awarded and is given the same effect as a judgment rendered after a trial on the merits.” M.R.C.P. 55 cmt. Therefore, the Coopers’ claim for punitive damages has been properly established. However, “[a] judgment entered pursuant to Rule 55(b) may be reviewed on appeal to the same extent as any other judgment[.]” M.R.C.P. 55 cmt. Our role here is to review the award of punitive damages to determine if such damages were proper based on the findings of fact and conclusions of law entered by the court to support the award.

¶ 33. The default entitled the Coopers to an award of punitive damages. The law on the review of an award of punitive damages was succinctly stated in Warren, 996 So.2d at 737-38 (¶ 25):

“The award of punitive damages, along with the amount of such, are within the discretion of the trier of fact.” Hurst v. [Sw.] Miss. Legal Servs. Corp., 708 So.2d 1347, 1350 [ (¶ 6)] (Miss.1998). This Court has “shown great deference to triers of fact that have awarded punitive damages.” Am. Income Life Ins. Co. v. Hollins, 830 So.2d 1230, 1242 [(¶ 44)] (Miss.2002) [ (overruled on other grounds) ]. Awards of punitive damages will not be disturbed absent exceptional circumstances, such as where the amount is arbitrary or unreasonable, [is] against the overwhelming weight of the evidence, or shows passion, bias, or prejudice so as to shock the conscience of the court. Id.

Accordingly, we review the circuit court’s findings of fact and conclusions of law to determine whether the ruling was supported by substantial, credible, and reasonable evidence. If the amount awarded was “arbitrary or unreasonable, against the overwhelming weight of the evidence,” we must reverse and remand the award for further consideration.

¶ 34. An award for punitive damages is proper where “the violation of a right or the actual damages sustained[] import insult, fraud, or oppression and not merely injuries, but injuries inflicted in the spirit of wanton disregard for the rights of others.” Warren, 996 So.2d at 738 (¶ 27) (quoting Bradfield v. Schwartz, 936 So.2d 931, 936 (¶ 17) (Miss.2006)).

¶ 35. The circuit court awarded $100,000 in punitive damages and relied on several factual findings. As discussed in the previous section, specifically paragraphs 17 through 22, there was sufficient evidence to support the court’s conclusion that the Defendants’ conduct would support an independent tort or punitive damages.

¶ 36. The Defendants’ conduct went beyond a mere breach of contract. There was evidence offered, without objection, from the Better Business Bureau to show that other customers of the Defendants had suffered similar problems. The Defendants’ corporations were not properly formed and compliant with the corporate laws of the States of Tennessee or Mississippi. Amounts paid for deposits and payment of materials were not sent to the manufacturers or suppliers, and instead were held by the Defendants, without notice to or approval of the Coopers. The Defendants admitted that the amounts of the deposits had not been returned and were still owed.

¶ 37. The Coopers payment of $186,997.80 for the materials package was not placed in either an escrow or a trust account. For example, the Defendants had been paid for and instructed to order the windows and doors. Yet the Defendants never ordered the windows and doors; they were never delivered, and payment was never made to the manufacturer. The Defendants failed to respond promptly to Dr. Cooper’s inquiries about the windows. The Defendants went so far as to lead Dr. Cooper to believe that the windows had been ordered, when they had not. The payment for the windows has never been refunded, even though the Defendants admit that it was owed.

¶ 38. The court viewed the actions of the Defendants as gross misconduct, breach of trust, a fraudulent misrepresentation about how the funds were to be used, and a conversion of funds. We previously held the court had no basis to find a fiduciary relationship; however, the court had sufficient grounds to rule that the Defendants’ actions went beyond a simple breach of contract, and rose to the level of wilful, wanton, and malicious conduct, which constituted an intentional tort.

¶ 39. Our standard of review requires ■ that we give deference to the trier of fact. Here, the court awarded punitive damages in the amount of $100,000. Were it not for the default, this issue could have been litigated and presented to a jury to resolve. However, based on the standard of review, the evidence presented, and the findings of the circuit court, we find that the award of punitive damages must be affirmed.

3. Whether the court erred in awarding punitive damages without considering the Defendants’ financial condition and net worth.

¶ 40. The Defendants next argue that the circuit court erred when it did not consider the Defendants’ ability or inability to pay when it awarded punitive damages. Mississippi Code Annotated section 11 — 1—65(1)(e) (Supp.2012) provides the factors to consider when awarding punitive damages:

In all cases involving an award of punitive damages, the fact[-]finder, in determining the amount of punitive damages, shall consider, to the extent relevant, the following: the defendant’s financial condition and net worth; the nature and reprehensibility of the defendant’s wrongdoing, for example, the impact of the defendant’s conduct on the plaintiff, or the relationship of the defendant to the plaintiff; the defendant’s awareness of the amount of harm being caused and the defendant’s motivation in causing such harm; the duration of the defendant’s misconduct and whether the defendant attempted to conceal such misconduct; and any other circumstances shown by the evidence that bear on determining a proper amount of punitive damages. The trier of fact shall be instructed that the primary purpose of punitive damages is to punish the wrongdoer and deter similar misconduct in the future by the defendant and others[,] while the purpose of compensatory damages is to make the plaintiff whole.

(Emphasis added).

¶ 41. The Defendants argue that the Coopers’ failure to prove some net worth of the Defendants precludes an award of punitive damages. The Defendants, however, fail to recognize that proof of net worth is not required to award punitive damages. C & C Trucking Co. v. Smith, 612 So.2d 1092, 1102 (Miss.1992). There, the supreme court “reject[ed] the expressions ... that proof of net worth is prerequisite to an award of punitive damages.” Id. at 1105-06. The court expressly overruled cases that held to the contrary. Id.

¶42. The court also held that, for a defendant to mitigate potential punitive damages, it is his responsibility to present proof of his net worth and financial condition. See id. at 1105. A defendant can introduce “evidence to demonstrate that a minimal award of exemplary damages would serve the punishment and deterrence functions.” Id. at 1104. Also, a plaintiff can introduce evidence of the defendant’s net worth or financial condition “to demonstrate the need for a large award of exemplary damages.” Id. However, if either party fails to present such evidence, that failure would not invalidate a claim for exemplary damages. Id.

¶43. If neither party presented evidence of a defendant’s net worth at trial, “neither party may challenge on appeal either the inadequacy or the exces-siveness of a punitive damages award.” Id. at 1105. The Coopers simply “had no burden to establish that the [Defendants had the financial ability to pay a punitive damage award.” Id. (citation omitted). Accordingly, we find that this issue has no merit.

k. Whether the court erred in granting attorney’s fees based on the award of punitive damages.

¶44. The Defendants argue that the Coopers were not entitled to an award of attorney’s fees because punitive damages should not have been awarded. The circuit court found that in addition to punitive damages, reasonable attorney’s fees in the amount of $29,798.86 should be awarded as well, representing attorney’s fees incurred through the preparation and submission of proposed findings of fact and conclusions of law by the parties. The Coopers argue that this award is reasonable under DynaSteel Corp. v. Aztec Industries, Inc., 611 So.2d 977, 987 (Miss.1992).

¶ 45. As discussed above, the entry of default required that we treat the Cooper’s claim for attorney’s fees as “a conclusive and final adjudication of the issues necessary to justify the relief awarded [that] is given the same effect as a judgment rendered after a trial on the merits.” M.R.C.P. 55 cmt. Therefore, the Coopers’ claim for attorney’s fees has been properly established. However, “[a] judgment entered pursuant to Rule 55(b) may be reviewed on appeal to the same extent as any other judgment[.]” M.R.C.P. 55 cmt. Accordingly, we review the circuit court’s findings of fact and conclusions of law to determine whether the ruling was supported by substantial, credible, and reasonable evidence. If the amount awarded was arbitrary or unreasonable, against the overwhelming weight of the evidence, we must reverse and remand the award for further consideration.

¶ 46. The circuit court awarded attorney’s fees in the amount of $29,798.86. The standard of review for an award of attorney’s fees is abuse of discretion. Regency Nissan, Inc. v. Jenkins, 678 So.2d 95, 103 (Miss.1995). The award must be supported by credible evidence. Id. The supreme court has held:

It is well settled in this State that what constitutes a reasonable attorney’s fee rests within the sound discretion of the trial court[,] and any testimony by attorneys with respect to such fee[s] is purely advisory and not binding on the trial court. We will not reverse the trial court on the question of attorney’s fees unless there is a manifest abuse of discretion in making the allowance....

Mauck v. Columbus Hotel Co., 741 So.2d 259, 269 (¶ 32) (Miss.1999).

¶47. The reasonableness of an attorney’s fee award is determined by reference to the factors set forth in Rule 1.5 of the Mississippi Rules of Professional Conduct. Miss. Power & Light Co. v. Cook, 832 So.2d 474, 486 (¶ 40) (Miss.2002). The supreme court has held:

These factors are sometimes referred to as the McKee factors. In addition to these factors, the Legislature gives ... guidance to courts in determining the reasonableness of attorney’s fees by instructing the court to “make the award based on the information already before it and the court’s own opinion based on experience and observation.” Miss.Code Ann. § 9-1-41 (1991).

Cook, 882 So.2d at 486-87 (¶ 40).

¶ 48. Here, there was evidence of the actual attorney’s fees incurred by the Coopers. Thus, since there was a basis for the award of punitive damages, an award of attorney’s fees was proper. See Warren, 996 So.2d at 739 (¶ 32). An award of attorney’s fees, given the nature of the Defendants’ conduct, is certainly justified. Accordingly, based on the evidence presented and the circuit court’s observation, especially in light of the fact this ease has been in litigation for more than six years,. the award of attorney’s fees in the amount of $29,798.86 on a judgment for actual damages in the amount of $105,977.32 was not an abuse of discretion by the circuit court.

¶ 49. THE JUDGMENT OF THE CIRCUIT COURT OF ITAWAMBA COUNTY IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANTS AND THE APPELLEES.

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

      . Woodcrest was a foreign corporation. Nationwide was a foreign limited-liability company. Neither was qualified to do business in Mississippi. Both, however, were doing business in Mississippi.

      . The record does not contain a document titled "Judgment,” as required by Mississippi Rule of Civil Procedure 58. But neither party has objected to the finality of the circuit court's findings of fact or conclusions of law as serving as the final judgment in this case. Also, neither party has raised this as an issue or asserted any prejudice. Therefore, as provided in Rule 58 and its comment, the circuit court’s findings of fact and conclusions of law, which were entered with the language "SO ORDERED AND ADJUDGED,” are determined by this Court to "have the force and finality of a judgment even if [they were] not properly titled.” M.R.C.P. 58. Additionally, the circuit court's ruling in the findings of fact and conclusions of law shall be deemed to serve as the judgment appealed from under Mississippi Rule Appellate Procedure 4(a). The parties should have submitted, and the circuit court should have required, the entry of a document titled "Judgment.”


source: Caselaw Access Project

author: FAIR, J.,

license: Public Domain

text:
    Kenneth ROBERTS, Appellant v. NORTHROP GRUMMAN SHIP SYSTEMS, INC., n/k/a Huntington Ingalls, Appellee.
    No. 2012-CA-00047-COA.
    Court of Appeals of Mississippi.
    Jan. 29, 2013.

      Justin Gary Sanderson, Michael Elton Pierce, attorneys for appellant.
    John Patrick Kavanagh Jr., attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Kenneth Roberts was injured working on a ship at the Ingalls shipyard, which was at that time owned and operated by Northtrop Grumman Ship Systems (“NGSS”). Roberts sued NGSS, alleging various acts of negligence. The trial court granted summary judgment to NGSS after finding as a matter of law that Roberts was a “borrowed employee” whose exclusive remedy was workers’ compensation. We agree with the trial court, so we affirm.

FACTS

¶ 2. Roberts earned a living as an itinerant electrician. He applied for a job with Ameri-Force Craft Services, a labor broker, after seeing an advertisement in a trade magazine. Roberts testified in his deposition that when he applied with Am-eri-Force he knew he would be working at Ingalls.

¶ 3. In early October 2006, Roberts traveled to the Ameri-Force offices in Pasca-goula. He executed various employment papers and took a drug test there. Roberts then went to NGSS for orientation, where he was given safety instruction, a competency test, and an NGSS safety manual. NGSS told Roberts where to report for work, and all of his supervisors were NGSS employees. Roberts was assigned to work on LHD-8, an amphibious assault vessel that was under construction by NGSS for the United States Navy. On his third day of work, Roberts was injured when he fell from a ladder and cut his leg on some duct work. He was unable to return to work and received benefits under the Longshore and Harbor Workers’ Compensation Act through his employment with Ameri-Force. Roberts later brought this negligence suit against NGSS.

STANDARD OF REVIEW

¶ 4. We review the grant of a summary judgment de novo. Davis v. Hoss, 869 So.2d 397, 401 (¶ 10) (Miss.2004). Summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). “[Ejvidence is viewed in the light most favorable to the party opposing the motion.” Davis, 869 So.2d at 401 (¶ 10).

DISCUSSION

¶ 5. The Longshore and Harbor Workers’ Compensation Act (LHWCA) is a federal law that creates a workers’ compensation scheme for certain maritime workers who do not qualify as seamen. Like other workers’ compensation schemes, the LHWCA provides wage replacement and medical benefits to workers injured in the course of employment, regardless of whether anyone is at fault for their injury. But in exchange for guaranteed coverage, a worker must surrender his right to sue the employer for negligence. See 33 U.S.C. § 905(a). The worker may still sue third parties, however, leading to the issue in today’s case: whether Roberts was a “borrowed employee” of NGSS and thus barred by the exclusivity provision of the LHWCA from bringing this negligence suit.

¶ 6. The first question is the choice of law — whether we should apply Mississippi or federal law in determining if Roberts was a borrowed employee. Both parties agree that we should employ the federal test, and given that Roberts accepted LHWCA benefits through his nominal employer, that appears to be the correct course. See Colbert v. Miss. Marine Corp., 755 So.2d 1116, 1120 n. 3 (¶ 12) (Miss.Ct.App.1999).

¶ 7. The seminal case governing this issue in the federal arena is Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir.1969). There, the Fifth Circuit held that a plaintiff would be limited to LHWCA benefits as an exclusive remedy against a defendant who was found, as a matter of law, to be his borrowing employer. The Fifth Circuit employs the following factors to determine whether a plaintiff was a borrowed employee:

(1) Who has control over the employee and the work he is performing, beyond mere suggestion of details or cooperation?
(2) Whose work is being performed?
(3) Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer?
(4) Did the employee acquiesce in the new work situation?
(5) Did the original employer terminate his relationship with the employee?
(6) Who furnished tools and place for performance?
(7) Was the new employment over a considerable length of time?
(8) Who had the right to discharge the employee?
(9) Who had the obligation to pay the employee?

Gaudet v. Exxon Corp., 562 F.2d 351, 355 (5th Cir.1977) (citing Ruiz, 413 F.2d at 312-13). “[T]he issue of whether a relationship of borrowed servant existed is a matter of law.” Id. at 357 (quoting Ruiz, 413 F.2d at 312-13). Summary judgment should be granted unless there is a showing that “genuine disputes exist over enough determinative factual ingredients to make a difference in th[e] result.” Id. at 358.

¶ 8. From the record and briefs, it is apparent there are no major factual disputes. Instead, the parties’ disagreement is over the interpretation of the facts and the application of the Ruiz factors. We recognize that our review is de novo, but after our own independent review of the record and controlling law, we adopt the findings of the trial judge on the Ruiz factors. Judge Harkey ruled as follows (footnotes and some citations omitted):

(1) Both parties agree that the NGSS had supervisors on the job site who determined the type and manner of the work to be performed by Roberts. Although he claims he managed the details of his own work, Roberts admitted any instructions he received came from an NGSS employee, a “lead man” named Virgil, and he worked alongside other NGSS employees. Other than instructing Roberts to report to a certain gate at the shipyard, Ameri-Force had no other supervisory personnel on-site and he received no supervision or direction from anyone other than NGSS personnel. His first task upon reporting for work was to undergo safety orientation provided all NGSS employees and receive the NGSS safety manual. This factor supports borrowed employee status.
(2) The parties acknowledge that the work being performed was that of NGSS.
(3) The contract between Ameri-Force and NGSS contained a provision regarding the status of loaned employees. Provision 6.6.2 of the contract provided, in part, as follows:
Independent Contractor Status
At all times ..., the parties agree that [Ameri-Force] is and shall remain an independent contractor and that [Ameri-Force] including, (sic) its administrative employees and/or Contract Labor assigned to Northrop Grumman, is not an employee, agent, joint venture or partner of Northrop Grumman. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Northrop Grumman and [Ameri-Force] including its Contract Labor....
Provisions of this nature have been found to create a fact issue sufficient to deny summary judgment when other factors do not overwhelmingly support borrowed employee status. West v. Kerr-McGee Corp., 765 F.2d 526, 531 (5th Cir.1985); Alday v. Patterson Truck Line, Inc., 750 F.2d 375, 378 (5th Cir.1985). On the other hand, where other factors clearly support the existence of a borrowed employee relationship, summary judgment would be proper as the question is universally considered a matter of law. Brown v. Union Oil Co. of [Cal.], 984 F.2d 674, 678[] n. 5 (5th Cir.1993). This is so because “the reality of the workplace and the parties’ actions in carrying out a contract ... can impliedly modify, alter or waive express contract provisions.” [Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1245 (5th Cir.1988)]. The parties “cannot automatically prevent a legal status like borrowed employee from arising merely by saying in a provision in their contract that it cannot arise.” Id.
It is clear that from the interpretation Ameri-Force had of its agreement, it placed Roberts under the exclusive control and direction of NGSS. Unlike West and Alday, there are no facts that would dispute this conclusion. Roberts’[s] characterization that since he was certified as an electrician he directed his own work rings hollow in this context. He was aware of NGSS[’s] request for electricians when he applied to Ameri-Force, was hired by Ameri-Force specifically for assignment to NGSS, and was doing work of NGSS when injured. He apparently had no further contact with Ameri-Force after he began work for NGSS. A further review of the other factors is necessary.
In Gaudet, the Fifth Circuit emphasized the importance of factors four through seven in distinguishing the borrowed servant doctrine in the LHWCA context from respondeat superior in general. “The principal focus within the Ruiz test in this case should therefore be: 1) was the second employer itself responsible for the working conditions experienced by the employee, and the risks inherent therein, and 2) was the employment with the new employer of such duration that the employee could be reasonably presumed to have evaluated the risks of the work situation and acquiesced thereto.” [Gaudet ], 562 F.2d at 357.
(4) From the preceding it is clear that Roberts acquiesced in this work situation, and this issue is conceded.
(5) This factor—was the original employment terminated?—does not require a complete severance of the relationship but is focused upon “the lending employer’s relationship with the employee [while] the borrowing occurs.” [Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 617-18 (5th Cir.1986) ]. Ameri-Force hired Roberts, told him to report to NGSS, placed no restrictions upon any of his work activities while at NGSS and had little or no dealings with him until after the injury. Although arranging medical treatment after his injury and providing compensation via LHWCA, as required by its contract, Ameri-Force exerted no control over the work activities of Roberts after the assignment, nor did it intend to. The relationship was nominal at best and favors borrowed employee status. [Melancon ], 834 F.2d at 1246.
(6) Neither Ameri-Force nor NGSS provided electrician’s tools for Roberts. Roberts supplied his personal tools which is commonplace for an itinerant electrician. The workplace, eonsuma-bles[,] and other supplies were provided by NGSS. This factor weighs slightly in NGSS[’s] favor, and at most would be neutral.
(7) A considerable length of time working for a borrowing employer is a significant factor evidencing a borrowed employee status, whereas the converse is not necessarily true. Such status is not negated where an injury occurs early in the working relationship. [Capps ], 784 F.2d at 618; [Brown ], 984 F.2d at 679. The evidence shows that Roberts spent his first day at orientation, the next two workdays cleaning an area in preparation, and was injured his third day while performing electrical work aboard ship. This factor is neutral.
(8) [Roberts] concedes that NGSS had the right to terminate [him] from its work site, and this power has been held to be sufficient to support a borrowed employee status. [Capps], 784 F.2d at 618; [Brown], 984 F.2d at 679.
(9) Finally, Ameri-Force had the contractual obligation to pay Roberts. However, Ameri-Force was compensated under its contract with NGSS based upon hours worked by Roberts at rates established by the contract, plus certain out-of-pocket, [“] Reimbursable Expenses.” Provisions such as this have been acknowledged as supporting borrowed employee status, as it essentially results in payment from the borrowing employer. [Brown], 984 F.2d at 679; [Melancon ], 834 F.2d at 1246; [Capps], 784 F.2d at 618.
Considering the evidence before the Court, the Ruiz factors weigh sufficiently in favor of borrowed servant status for the Court to conclude as a matter of law that [Roberts] was a borrowed servant of NGSS.

¶ 9. The issues raised by Roberts were properly resolved in the trial judge’s thorough and thoughtful decision; Roberts has made no new arguments on appeal. As the trial judge got it right, it would serve no useful purpose for this Court to repeat the discussion in affirming the trial court’s judgment.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. BARNES, J., CONCURS IN RESULT ONLY. JAMES, J., NOT PARTICIPATING.


author: IRVING, P.J.,

text:
    GREEN TREE SERVICING LLC, Appellant v. Regenald SIMMONS and Lisa Simmons, Appellees.
    No. 2010-CA-01844-COA.
    Court of Appeals of Mississippi.
    Feb. 26, 2013.

      Michael D. Simmons, Jackson, attorney for appellant.
    Robert R. Morris, Batesville, Ryan Revere, attorneys for appellees.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   IRVING, P.J.,

for the Court;

¶ 1. On October 25, 2010, the Panola County Circuit Court denied, in part, Green Tree Servicing LLC’s (Green Tree) motion to compel Regenald and Lisa Simmons to arbitrate their claims against Green Tree. Feeling aggrieved, Green Tree appeals and argues that the circuit court erred in finding that: (1) the arbitration clause is substantively unconscionable; (2) the Simmonses’ claims are outside the scope of the arbitration agreement; and (3) Green Tree waived its right to compel arbitration.

¶ 2. Because we find that the Simmons-es’ claims are within the scope of the arbitration clause and Green Tree did not waive its right to compel arbitration, we reverse the circuit court’s denial of Green Tree’s motion to compel and remand this case for entry of an appropriate order referring this case to arbitration in accordance with the arbitration agreement.

FACTS

¶ 3. In 2000, the Simmonses obtained financing from Green Tree to purchase a mobile home. Later, a dispute arose between the Simmonses and Green Tree over the Simmonses’ failure to make mortgage payments. Green Tree filed a replevin action in the Panola County Circuit Court in 2004 and ultimately obtained a final judgment in replevin against the Simmons-es. However, Green Tree did not attempt to take possession of the mobile home until 2009.

¶4. On January 22, 2009, Chad Mills, the owner of Pontotoc Mobile Home Transport LLC (PMHT), came to the Sim-monses’ property to repossess the mobile home on behalf of Green Tree. Lisa assured Mills that they were current in their mortgage payments to Green Tree and asked Mills if he had any documentation authorizing him to repossess the mobile home. Mills responded that he did not. Lisa asked Mills to leave the property, and when he would not, she called the Panola County Sheriffs Department. Deputy Earl Burdette escorted Mills off the property. The Simmonses then drove to Oxford, Mississippi, to file an emergency bankruptcy petition and stop the repossession of their home.

¶ 5. While the Simmonses were in Oxford, Mills returned to their property with a copy of the 2004 final judgment in re-plevin and removed half of the Simmonses’ mobile home. The United States Bankruptcy Court for the Northern District of Mississippi declared that an automatic stay was in effect and ordered the return of the portion of the mobile home that had been removed. On January 26, 2009, Green Tree returned and reconnected the portion of the mobile home that Mills had removed four days earlier. However, it refused to reconnect the gas, water, and sewage lines that had been cut during the portion’s removal.

¶ 6. The Simmonses retained a mobile-home expert to conduct an inspection of the home. The inspection revealed that the cost to safely reconnect and repair the home would exceed $30,000. On February 23, 2009, a fire destroyed the mobile home. An investigation confirmed that the cause of the fire was Green Tree’s negligent disconnection and reconnection of the mobile home’s wiring.

¶ 7. The Simmonses filed a complaint against Green Tree, Mills, and PMHT, alleging wrongful repossession, destruction of property, negligence, gross negligence, fraudulent concealment, and fraud. In response, Green Tree filed a motion to compel the Simmonses to arbitrate their claims. The circuit court ruled that, while the Simmonses’ fraudulent concealment and fraud claims remained subject to arbitration, their claims for wrongful repossession, destruction of property, negligence, and gross negligence were not subject to arbitration because Green Tree had waived arbitration of those claims by initiating a replevin action in 2004. The circuit court also ruled that none of the Simmonses’ claims against Mills or PMHT were subject to arbitration.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Jurisdiction

¶ 9. The Simmonses’ complaint against Green Tree, Mills, and PMHT is a multiple-party, multiple-claim action governed by Rule 54(b) of the Mississippi Rules of Civil Procedure. Rule 54(b) provides as follows:

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

(Emphasis added). Additionally, the comment to Rule 54 states that “[ajbsent a certification under Rule 54(b), any order in a multiple[-]party or multiple[-]claim action, even if it appears to adjudicate a separable portion of the controversy, is interlocutory.” M.R.C.P. 54 cmt.

¶ 10. In this case, the circuit court’s order compelled only some of the Sim-monses’ claims against Green Tree to arbitration. The Simmonses’ remaining claims against Green Tree and all of their claims against Mills and PMHT were left for resolution in the circuit court. The court failed to certify its order as a final judgment under Rule 54(b). Therefore, the circuit court’s order appears to be unap-pealable.

¶ 11. However, in Tupelo Auto Sales v. Scott, 844 So.2d 1167, 1170 (¶10) (Miss.2008), the Mississippi Supreme Court established a bright-line rule regarding the finality of a circuit court’s order denying a motion to compel arbitration. After acknowledging that state statutes and previous case law created significant confusion on the matter, our supreme court held that, “[t]he lack of a final judgment or a grant of a petition for interlocutory appeal notwithstanding, .... an appeal may be taken from an order denying a motion to compel arbitration.” Id. The court reaffirmed the rule from Scott in Sawyers v. Herrin-Gear Chevrolet Co., 26 So.3d 1026, 1032 (¶ 13) (Miss.2010), by stating that the rule “simplified the process for parties aggrieved by a [circuit] court’s denial of a motion to compel arbitration.” Therefore, even though the circuit court’s order is not a typical final judgment, this Court has jurisdiction to review the merits of this appeal.

2. Substantive Unconscionability

¶ 12. The standard of review for the denial of a motion to compel arbitration is de novo. Sawyers, 26 So.3d at 1034 (¶ 20). Green Tree contends that the circuit court erroneously found that the arbitration agreement between the Simmonses and Green Tree was substantively unconscionable. However, there was no such ruling. The circuit court found that the agreement allowed Green Tree to “use the judicial system to repossess the [Simmons-es] mobile home” but bound the Simmons-es to arbitration on any claim that they may have raised regarding the contract. Green Tree responded that this arrangement did not make the agreement unconscionable. Although the court disagreed, it ruled against Green Tree because' it found that Green Tree had “waive[d] any right to compel arbitration in cases where it is alleged that [its] use of the judicial process has damaged someone,” not because it found that the agreement was unconscionable. Accordingly, this issue is without merit.

3. Scope of the Arbitration Agreement

¶ 13. The circuit court determined that some of the Simmonses’ claims were outside the scope of the arbitration agreement because those claims arose out of Green Tree’s use of the judicial replevin process. We disagree and find that all of the Simmonses’ claims are subject to arbitration.

¶ 14. “Courts often characterize arbitration language as either broad or narrow. Broad arbitration language governs disputes ‘related to’ or ‘connected with’ a contract, and narrow arbitration language requires arbitration of disputes that directly ‘arise out of a contract.” MS Credit Center Inc. v. Horton, 926 So.2d 167, 175-76 (¶ 24) (Miss.2006) (citing Pennzoil Exploration & Prod. Co. v. Ramco Energy Ltd., 139 F.3d 1061, 1067 (5th Cir.1998)). Therefore, “[bjecause broad arbitration language is capable of expansive reach, courts have held that it is only necessary that the dispute ‘touch’ matters covered by the contract to be arbitrable.” Id. at 176 (¶ 25) (citations and internal quotations omitted).

¶ 15. The arbitration agreement between the Simmonses and Green Tree contains the following language:

All disputes, claims, or controversies arising from or relating to the [contract or the relationships which result from this [cjontract, or the validity of this arbitration clause or the entire [cjontract, shall be resolved by binding arbitration.... The parties agree and understand that all disputes arising under case law, statutory law, and all other laws including, but not limited to, all contract, tort, and property disputes, will be subject to binding arbitration in accord with this agreement.... Notwithstanding anything hereunto the contrary, you retain an option to use judicial or non-judicial relief to enforce a security agreement relating to the collateral secured in a transaction underlying this arbitration agreement, to enforce the monetary obligation^] or to foreclose on the collateral. Such judicial relief would take the form of a lawsuit. The institution and maintenance of an action for judicial relief in a court to foreclose upon any collateral, to obtain a monetary judgment!,] or to enforce the security agreement shall not constitute a waiver of the right of any party to compel arbitration regarding any other dispute or remedy subject to arbitration in this [cjontract....

(Emphasis added). Although the circuit court did not characterize this language as either broad or narrow, the arbitration clause clearly uses broad language. Therefore, all claims that touch matters covered by the contract between the Sim-monses and Green Tree must be arbitrated.

¶ 16. Here, the Simmonses’ claims for wrongful repossession, destruction of property, and gross negligence stem from Green Tree’s right to repossess the mobile home, which is discussed in paragraph sixteen of the contract. Additionally, the Simmonses’ negligence claim is based on Green Tree’s failure to process or delay in processing the payments and fees owed under the contract. Accordingly, the Sim-monses’ claims “relate to” the contract that they signed with Green Tree and are within the scope of the arbitration agreement.

h. Waiver

¶ 17. The circuit court ruled that Green Tree had waived its right to compel arbitration because the Simmonses’ claims stemmed from Green Tree’s 2004 replevin action. To establish that a party has waived its right to compel arbitration, “the objector to arbitration must establish ‘that a party seeking arbitration substantially invoke[d] the judicial process to the detriment or prejudice of the other party.’ ” Russell v. Performance Toyota, Inc., 826 So.2d 719, 724 (¶ 15) (Miss.2002) (quoting Subway Equip. Leasing Corp. v. Forte, 169 F.3d 324, 326 (5th Cir.1999)). Additionally, the party claiming waiver must offer sufficient evidence to overcome the presumption against a waiver of arbitration. Id. at (¶ 16).

¶ 18. Neither the Mississippi Supreme Court nor this Court has had the opportunity to address whether the use of an exception in an arbitration clause acts as a waiver for claims arising after the use of the exception. However, our supreme court has previously held that repossession of a vehicle, without the use of the judicial process, does not waive the right to compel arbitration. Id. at 724 (¶¶ 17-19). In Russell, the court favorably cited Conseco Fin. Servicing Corp. v. Wilder, 47 S.W.3d 335, 345 (Ky.Ct.App.2001). Id. at (¶18).

¶ 19. In Wilder, the plaintiffs obtained financing from Conseco to purchase a mobile home. Wilder, 47 S.W.3d at 337. The plaintiffs alleged that the mobile home was defective when it was delivered, and Con-seco failed to repair the mobile home. Id. As a result, the plaintiffs stopped making monthly mortgage payments. Id. In 1997, Conseco sued the plaintiff under the contract and repossessed the mobile home. Id. at 337-38. When the plaintiffs filed suit to have the contract rescinded, Conse-co requested that the plaintiffs’ claims be compelled to arbitration. Id. at 338. The circuit court denied Conseco’s motion, finding that the arbitration clause was unconscionable. Id.

¶ 20. On appeal, Conseco argued that its arbitration clause was not unconscionable. Id. The plaintiffs argued several grounds for affirming the circuit court’s judgment, including that Conseco had waived its right to compel arbitration by using the judicial process to repossess the mobile home. Id. at 344. The court determined that Conseco had not waived its right to compel arbitration because its actions were pursuant to a valid arbitration agreement and were not “for the purpose of gaining ... or conferring any tactical advantage with respect to the ... subsequent complaint.” Id. at 345.

¶ 21. Like Conseco, Green Tree attempted to repossess the Simmonses’ mobile home, which served as collateral to secure the transaction between Green Tree and the Simmonses. Green Tree’s action was specifically permitted by the arbitration clause, was not for the purpose of gaining a tactical advantage against the Simmonses, and did not constitute a waiver of Green Tree’s right to compel arbitration. The Simmonses agreed to this course of action twice in the contract— once in that portion of the contract that explained Green Tree’s general remedies if the Simmonses defaulted on the contract and again in the arbitration clause regarding Green Tree’s right to enforce the security agreement relating to the mobile home.

¶ 22. Moreover, when the Simmonses filed their subsequent complaint against Green Tree, Green Tree’s only response was to file a motion to compel the Sim-monses to arbitrate their claims. Therefore, there was no overt action on Green Tree’s behalf that manifested a desire to resolve the present arbitrable dispute through litigation rather than through arbitration. Furthermore, the Simmonses have failed to present any evidence that they have suffered prejudice in the present action as a result of Green Tree’s 2004 replevin action. As such, the circuit court erred in finding that Green Tree waived its right to compel arbitration.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY DENYING THE MOTION TO COMPEL ARBITRATION IS REVERSED AND THIS CASE IS REMANDED TO THE CIRCUIT COURT FOR THE ENTRY OF AN ORDER REFERRING THIS CASE TO ARBITRATION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . All of the facts set forth in this opinion are taken from the Simmonses’ complaint, as Green Tree had not filed an answer at the time that it filed its motion to compel arbitration.

      . We presume that Green Tree petitioned the bankruptcy court to lift the automatic stay and was denied. However, the official bankruptcy filings and orders are not part of the record.

      . Paragraph sixteen of the contract between the Simmonses and Green Tree states, in pertinent part:
      Unless prohibited by law, if I am in default on this [c]ontract, you have all of the remedies provided by law, this [cjontract, and any separate personal property security agreement, real estate mortgage, or deed of trust.... Your remedies include the following: ... (D) You may immediately take possession of the [pjroperty by legal process or self-help, if you do so lawfully.


text:
    Gary LEE, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01884-COA.
    Court of Appeals of Mississippi.
    Feb. 26, 2013.
    Gary Lee, appellant, pro se.
    Office of the Attorney General by R. Stewart Smith Jr., James M. Norris, attorneys for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Gary Lee appeals the dismissal of his motion to show cause, supplemental report, petition to amend, and motion to supplement complaint. In 1982, in Mississippi, Lee was convicted of aggravated assault on a law-enforcement officer under Mississippi Code Annotated section 97-3-7(2)(b) (Supp.1984). The Mississippi Department of Corrections (MDOC) released Lee on February 9, 2012, into the custody of the State of Florida. Lee currently resides in a Florida prison. On appeal, Lee argues that “in a realistic sense, [he] was in custody in [two] counties at the same time,” and he should have been credited for time served in both counties. This Court finds that this appeal should be dismissed as moot because Lee has completed his sentence and is no longer in custody.

FACTS

¶ 2. In 1975, Lee was sentenced in Florida to serve a ten-year term and a five-year term. In 1977, Lee escaped and was re-incarcerated in 1978. He received a one-year sentence for his escape. On August 4, 1981, Florida released Lee on parole.

¶ 3. Lee was arrested in Mississippi and was placed in the Sunflower County Jail on December 22, 1981. Bolivar County issued a detainer for Lee while he was in the Sunflower County Jail. This is important to Lee’s argument since he argues he should receive additional credit for time served because he was in custody in two locations at the same time.

¶4. On February 16, 1982, Lee pled guilty to accessory after the fact to armed robbery in Sunflower County Circuit Court. Lee was sentenced to serve five years in the custody of the MDOC. That same day, Sunflower County transferred Lee to the Bolivar County Jail.

¶ 5. On March 29, 1982, Lee attempted an escape from the Bolivar County Jail. He assaulted two law-enforcement officers, Officer Charles Griffin and Officer Eugene Hall. On October 20, 1982, a Bolivar County grand jury indicted Lee for aggravated assault on a law-enforcement officer.

¶ 6. On December 7, 1982, Lee was sentenced to serve thirty years, mandatory day-for-day, as a habitual offender based on his conviction for aggravated assault on a law-enforcement officer, Officer Hall. In the computation of his sentence, Lee was given 294 days of credit for time served.

¶ 7. On November 23, 1983, Lee was convicted and sentenced to life imprisonment without parole for the assault on Officer Griffin. However, on that conviction, our supreme court reversed and remanded for a new trial based on the circuit court’s refusal to instruct the jury on the lesser-included offense of simple assault. Lee v. State, 469 So.2d 1225, 1232 (Miss.1985).

¶ 8. While Lee was still imprisoned in Mississippi in 2008, the Florida Parole Commission responded to Lee’s request to remove a detainer. The Florida Parole Commission stated that there was no de-tainer placed on Lee in Florida. This led Lee to believe that once the MDOC released him he would remain free. However, MDOC correspondence to Lee in September 2011 indicated that the Florida Parole Commission had logged a detainer and requested notification of Lee’s release date due to a parole violation.

¶ 9. In 2011, Lee pursued a claim in the Administrative Remedy Program of the MDOC. He claimed that he was entitled to consideration for the pre-release program. The MDOC denied his application because he had received a Rule Violation Report in the six months prior to his application for the pre-release program.

¶ 10. On September 20, 2011, Lee filed his motion to show cause in Rankin County Circuit Court. He alleged that in August he had received a First Step Response Form and the MDOC had until October to submit the Second Step Response Form, but even so he had been disadvantaged by the MDOC’s delay. The circuit court stayed the proceedings in October to allow for completion of the administrative-review process.

¶ 11. On October 12, 2011, Lee filed a petition to amend. The petition concerned his eligibility for the pre-release program. On October 12, 2011, Lee also filed a supplemental report that alleged he was entitled to an additional fifty-seven days of credit because he was in the custody of Sunflower County and Bolivar County at the same time. On November 22, 2011, Lee filed a motion to supplement his complaint and attached several letters as exhibits about time-served credit.

¶ 12. On December 7, 2011, the circuit court dismissed his motions based on the finding that the MDOC’s “decision was supported by substantial evidence, was not arbitrary or capricious, was within its scope and powers and did not violate the constitutional rights of [the] petitioner.” Lee timely filed his notice of appeal. More importantly, the MDOC released Lee on February 9, 2012, and Florida then incarcerated Lee for the third time there.

ANALYSIS

¶ 13. Lee’s argument about credit for time served has become moot due to his release. In Campbell v. State, 975 So.2d 907, 907 (¶ 1) (Miss.Ct.App.2008), Campbell appealed the denial of a motion for correct calculation of credit for time served before his sentence. The scenario was similar to the instant case because Campbell argued that the MDOC had wrongly denied him credit for time served. We found that the issue was moot because Campbell had already completed his sentence. Id.

¶ 14. We find that the issues raised on appeal and in Lee’s motions and petitions are now moot. Under Mississippi Code Annotated section 99-39-5 (Supp. 2012), Lee is not entitled to post-conviction review because he was released from the MDOC’s custody. Additionally, it is well-entrenched law in Mississippi that “[c]ases in which an actual controversy existed at trial but the controversy has expired at the time of review[ ] become moot.” Wilson v. Mallett, 50 So.3d 366, 368 (¶6) (Miss.Ct.App.2006) (quoting J.E.W. v. T.G.S., 935 So.2d 954, 959 (¶ 14) (Miss.2006)). This Court has “no power to issue advisory opinions.” Id.

¶ 15. Lee was convicted, sentenced, and released. Lee is no longer in the custody of the MDOC. Therefore, there is no longer any controversy in regard to additional credit for time served toward his sentence or eligibility for a pre-release program. We dismiss this appeal.

¶ 16. THIS APPEAL FROM THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT IS DISMISSED AS MOOT. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

LEE, C.J., BARNES, ISHEE, ROBERTS, CARLTON AND FAIR, JJ„ CONCUR. IRVING, P.J., AND MAXWELL, J., CONCUR IN PART AND IN THE RESULT. JAMES, J. NOT PARTICIPATING.

      . Also, in Florida, Lee has argued that he should receive credit for the entire thirty years served in Mississippi because Florida had a detainer against him while he was in Mississippi.

      . Lee has filed other actions previously, even one that addressed this same argument for entitlement to credit for time served. See Lee v. State, 78 So.3d 330 (Miss.2012); Lee v. State, 469 So.2d 1225 (Miss.1985); Lee v. Kelly, 34 So.3d 1203 (Miss.Ct.App.2010).