source: Caselaw Access Project

author: RUSSELL, J., MAXWELL, J., GRIFFIS, P.J.,

license: Public Domain

text:
    HOVAS CONSTRUCTION, INC., A Mississippi Corporation, Appellant v. BOARD OF TRUSTEES OF WESTERN LINE CONSOLIDATED SCHOOL DISTRICT, Appellee.
    No. 2010-CA-01755-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2012.
    Rehearing Denied Feb. 26, 2013.
    Certiorari Denied April 25, 2013.

      Nathan P. Adams Jr., Philip Mansour Jr., Greenville, attorneys for appellant.
    David S. Rounsavall, Greenville, attorney for appellee.
   RUSSELL, J.,

for the Court:

¶ 1. Hovas Construction Inc. (Hovas) appeals the judgment of the Washington County Circuit Court awarding $19,500 in liquidated damages to the Board of Trustees of Western Line Consolidated School District (School District) due to Hovas’s failure to complete a construction project by the agreed-upon deadline. Hovas argues that the circuit court erred by: (1) finding the liquidated-damages provision of the contract enforceable when it was an unreasonable pre-estimation of damages, was generally unreasonable, and thus constituted a penalty; (2) holding that the School District had suffered actual damages; and (B) awarding liquidated damages to the School District. We find no error and affirm the circuit court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. Hovas and the Board of Trustees of Western Line Consolidated, a governmental entity located in Avon, Mississippi, entered into a construction contract on December 10, 2007. The contract was for the installation of gym windows, the renovation of existing restroom facilities, and an addition to a building at O’Bannon High School in Washington County, Mississippi. The contract price was $450,000. The contract included a provision for substantial completion of the building no later than June 6, 2008. The final completion of the project was slated on or before July 6, 2008.The contract also included a provision for liquidated damages, which specified a rate of $500 per day for each day the project went beyond the completion date.

¶ 3. Hovas began work on the school project and completed the replacement of windows with no problem. However, there was a glitch in the erection of the steel building. The parts for the steel building were placed on hold by Ruffin Building Systems and were not delivered to the job site until May 5, 2008. The steel building was erected on May 22, 2008. Other repairs such as the block work, brick work, and interior work for another building were completed on July 15, 2008. On July 15, 2008, the architect presented the School District with the notice of substantial completion, and the buildings were turned over to the School District. No notice of final completion of the project was submitted to the School District.

¶4. On June 12, 2008, the School District voted to enforce the liquidated damages provision of the contract because Ho-vas did not complete the project by the dates specified in the contract.

¶ 5. The School District experienced various problems with the buildings. The plumbing in the restrooms that Hovas constructed became backed up, rendering the restrooms unusable. Hovas was called to fix the problems, but the problems were never fixed. The School District hired RH Plumbing to find and repair the plumbing problems. RH Plumbing determined that the sewer pipes were the source of the problems and completed repairs in July 2009. The School District was required to pay RH Plumbing $9,872.45 for the plumbing work. Prior to the repairs, students of O’Bannon High School were also forced to leave the new buildings and go to other buildings to use the restrooms, causing disruptions to the school environment.

¶ 6. The School District paid Hovas all payments with the exception of $21,750.76, which included $19,500 withheld as liquidated damages. Hovas then filed an action seeking recovery of the $19,500 withheld. The Circuit Court of Washington County found the liquidated damages provision of the contract reasonable and enforceable, and that the School District suffered actual damages. On November 8, 2010, the circuit court awarded the School District liquidated damages of $19,500. Hovas timely appealed to this Court.

STANDARD OF REVIEW

¶ 7. “In bench trials, a circuit judge’s findings are subject to the same standard of review as those of a chancellor.” Transocean Enterprise, Inc. v. Ingalls Shipbuilding, Inc., 33 So.3d 459, 462 (¶ 7) (Miss.2010) (quoting Univ. of Miss. Med. Ctr. v. Pounders, 970 So.2d 141, 145 (¶ 11) (Miss.2007)). “Our familiar standard of review requires that when a trial judge sits without a jury, this Court will not disturb his factual determinations where there is substantial evidence in the record to support those findings.” Id. (quoting Ezell v. Williams, 724 So.2d 396, 397 (¶ 4) (Miss.1998)). “This Court ought [to] and generally will affirm a trial court sitting without a jury on a question of fact unless, based upon substantial evidence, the court must be manifestly wrong.” Id. (quoting Yarbrough v. Camphor, 645 So.2d 867, 869 (Miss.1994)). “This Court, however, reviews questions of law de novo.” Id. (citing Howard v. Estate of Harper ex rel. Harper, 947 So.2d 854, 856 (¶5) (Miss.2006)).

DISCUSSION

I. Whether the circuit court erred in holding the liquidated-damages provision of the contract was reasonable, enforceable, and not a penalty.

¶ 8. Hovas argues that the circuit court erred when it found the liquidated-damages provision of the contract enforceable. Hovas argues that this provision is not a reasonable pre-estimation of the damages nor a reasonable estimate of actual damages that would be incurred by the School District upon late completion of the project. Hovas contends the provision is nothing more than a penalty.

¶ 9. It is undisputed that both parties were aware of the liquidated-damages provision in the contract. Liquidated-damages clauses are common in construction contracts. Typically the clauses set out the amount that the contractor will pay per day for not completing the project as set out in the contract. The purpose of a liquidated-damages clause is to affix actual damages flowing from a potential breach. See PYCA Indus., Inc. v. Harrison Cnty. Waste Water Mgmt. Dist., 177 F.3d 351, 368 (5th Cir.1999).

¶ 10. In this case, both parties consented to the liquidated-damages provision at the time the contract was made. According to Mississippi law, the intention of the parties will control to determine whether a provision of a contract is for liquidated damages or for a penalty. Cont’l Turpentine & Rosin Co. v. Gulf Naval Stores Co., 244 Miss. 465, 485, 142 So.2d 200, 209 (1962).

¶ 11. “Equity will enforce a contract for liquidated damages if such liquidated damages can be found to be reasonable and proper in the light of the circumstances of the case.” Maxey v. Glindmeyer, 379 So.2d 297, 301 (Miss.1980). Often parties agree to the payment of liquidated damages in circumstances where it is difficult to predict actual damages that may result from a breach. Brown v. Staple Cotton Coop. Ass’n, 132 Miss. 859, 96 So. 849, 856-57 (1923). “[A]n agreement for liquidated damages will be held valid[] ‘in the absence of any evidence to show that the amount of damages claimed is unjust or oppressive, or that the amount claimed is disproportionate to the damages that would result from the breach or breaches of the several covenants of agreement.’ ” Wood Naval Stores Export Ass’n v. Latimer, 220 Miss. 652, 667, 71 So.2d 425, 431 (1954) (quoting Tobacco Growers’ Coop. Ass’n v. Jones, 185 N.C. 265, 117 S.E. 174, 183 (1923)).

¶ 12. Hovas has offered no proof to show the amount provided for in the liquidated-damages provision of the contract was unjust or oppressive or that the amount claimed is disproportionate to the damages. Hovas only argues, without evidence, that there was no pre-estimation of damages by the School District to calculate the liquidated-damages amount. However, Mississippi law does not require such evidence of a pre-estimation, only that the amount be reasonable and proportionate.

¶ 13. The Restatement of Contracts (First) provides an illustration of this situation:

A contracts to build a grandstand for B at B’s race course, for $130,000, to have it completed by a certain date, and to pay $100 per day for every day’s delay beyond that date in completing the stand. The sum promised for delay is liquidated damages and not a penalty. If completion is 10 days late, B’s recoverable damages are $1000. Evidence that B could not have used the grandstand for spectators during the period of delay is not sufficient to show that the delay caused no injury or that the harm is capable of accurate estimation.

¶ 14. In this case, Hovas and the School District contracted for Hovas to finish the project on a certain date. If the project was not completed by the agreed date, the School District could recover damages of $500 per day. The trial court found the completion date for Hovas to be July 15, 2008, thirty-nine days after the substantial completion date of June 6, 2008, set by the contract. At the contractual rate of $500 per day, the thirty-nine days of delay equals $19,500 in liquidated damages. Ho-vas was aware of the liquidated-damages provision and what would happen if the project was not completed on time. Hovas agreed to the liquidated-damages provision, and the amount is not unreasonable or disproportionate to the total contract price of $450,000. Thus, we find this issue to be without merit.

¶ 15. We also agree with the circuit court’s finding that the general nature of the liquidated damages clearly supports the assessment in accordance with the terms of the contract. The amount of damages is reasonable and proportionate to the overall costs of the project and does not constitute a penalty. Thus, the circuit court did not err in awarding liquidated damages to the School District as argued by Hovas in their appeal.

II. Whether the circuit court erred in finding that the School District suffered actual damages.

¶ 16. Hovas next argues that the circuit court erred in finding that the School District suffered actual damages. However, the issue of actual damages does not have an impact on the amount of the liquidated damages to which the School District is entitled. In fact, “parties [will] agree to the payment of liquidated damages where it is difficult to determine actual damages, resulting from a breach.” Bd. of Trs. of State Insts. of Higher Learning v. Johnson, 507 So.2d 887, 890 (Miss.1987). A liquidated-damages provision of a contract is present to account for actual damages that cannot be foreseen at the time of the making of the contract. A liquidated-damages provision will be enforceable unless: (1) “the actual damage resulting from the breach may be readily ascertained”; or (2) “the contract discloses no intention to fix the sum as liquidated damages or leaves the intention in this regard in doubt.” PYCA 177 F.3d at 367. In this case, the damages that the School District would suffer if Hovas did not complete the project on time were not readily ascertainable. It is difficult to award nominal damages for things such as disruption of the school environment.

¶ 17. The liquidated damages were to compensate the School District for Hovas’s failure to comply with the contract and complete the project by the agreed-upon date. The circuit court never awarded any nominal damages for any actual damages the School District suffered. The circuit judge merely mentioned actual damages in support of its finding that the contracted amount for liquidated damages was a reasonable estimate of actual damages. Finding no error, we affirm.

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

LEE, C.J., IRVING, P.J., AND FAIR, J., CONCUR. MAXWELL, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY ROBERTS AND FAIR, JJ. ROBERTS, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES, ISHEE AND CARLTON, JJ.

MAXWELL, J.,

specially concurring:

¶ 19. I agree with Judge Russell’s affir-mance of, the trial judge’s award of liquidated damages but write separately to explain my reasoning.

¶ 20. This case turns on the enforceability of a liquidated-damages clause in a construction contract. The provision called for Hovas’s substantial completion of its construction work at the Western Line school by June 6, 2008. The parties agreed Hovas would be assessed $500 for each calendar day beyond June 6 that substantial completion of the contract was delayed. Hovas did not meet the deadline. Rather, it presented notice of substantial completion to the School District on July 15, 2008 — some thirty-nine days later.

¶ 21. Mississippi recognizes that parties to a contract may agree on the payment of liquidated damage where determination of actual damages would be difficult upon breach. Brown v. Staple Cotton Coop. Assoc., 132 Miss. 859, 892, 96 So. 849, 856-57 (1923). But when a contract’s terms impose a penalty for the purpose of “terrorizing” a party to comply with its terms, the penalty is not enforceable upon breach, either in equity or at law. Shields v. Early, 132 Miss. 282, 296, 95 So. 839, 841 (1923). “[T]he essence of liquidated damages is a genuine covenanted pre-esti-mate of damages.” Id. at 296-97, 95 So. at 841 (internal quotations omitted). “To distinguish then liquidated damages from a penalty, courts must look to the parties’ intentions.” Bd. of Trs. of State Insts. of Higher Learning v. Johnson, 507 So.2d 887, 890 (Miss.1987).

¶ 22. I respectfully disagree with Judge Griffis’s suggestion that Mississippi law required that the School District prove actual damages resulted from the breach to recover liquidated damages. While some courts utilize this back-end retrospective analysis to determine whether actual damages flow from the breach, Mississippi does not. If Mississippi followed this approach, my analysis would indeed differ. But Mississippi apparently utilizes a prospective or front-end approach that instead focuses on the reasonableness of a liquidated-damages clause as of the time the contract was executed — not in hindsight. Indeed, the Mississippi Supreme Court has explained: “Whether a sum stipulated is a penalty or liquidated damages is a question of construction ‘to be decided upon the terms and inherent circumstances of each particular contract, judged as at the time of the making of the contract, not as at the time of the breach’ Shields, 132 Miss, at 297, 95 So. at 841 (emphasis added).

¶ 23. Mississippi courts give special weight to two basic considerations when deciding whether a contractual provision provides for liquidated damages or an unenforceable penalty: (1) whether the stipulated damages are a reasonable pre-esti-mate of damages, and (2) whether at the time of the contract’s execution, it is difficult to determine actual damages resulting from a breach. Johnson, 507 So.2d at 890. “In Mississippi, where such damages for breach are both uncertain and difficult of estimation, such a provision has regularly been construed as one for liquidated damages.” Id. (internal quotations and citations omitted).

¶ 24. Here, Hovas’s breach is undisputed. So it reasons that, because both parties agreed to per diem damages upon breach, the burden of proving that the liquidated-damages clause is an unenforceable penalty falls on Hovas — the party challenging the provision. It is apparent that when forming the contract it was difficult if not impossible to determine the actual amount of damages that might result if the building was substantially delayed, or worse yet, not constructed before the school year began. And because the building was not intended to be rented or used for other commercial purposes, forecasting the probable or presumptive loss was much harder to estimate. However, it is reasonable to believe that the district and school, as well as its administrators, custodians, and teachers would undoubtedly suffer some loss in the event of default. Given the uncertainty of actual damages, the amount of $500 per day on a $450,000 contract, which was agreed upon by Ho-vas, does not strike me as an unreasonable anticipation of damages when viewed prospectively. See id. at 890. (finding liquidated-damages provision that varied based on the time remaining under a contract where prospective loss was difficult to assess was reasonable). Because Hovas has not proved the terms of the liquidation clause were unreasonable and thus amounted to a mere penalty, I would affirm the circuit judge’s award of liquidated damages.

ROBERTS AND FAIR, JJ., JOIN THIS OPINION.

GRIFFIS, P.J.,

dissenting:

¶ 25. This case requires the interpretation of a liquidated-damages clause in a construction contract. The School District contends that because Hovas was thirty-nine days late in substantial completion, it was entitled to deduct $19,500 as liquidated damages from the balance of the construction price due Hovas under the construction contract. Hovas argues that (1) any delay was not due to its fault, but was due to the late delivery of the steel building parts, the material having been timely ordered by Hovas; (2) the liquidated-damages provision in the contract is not a reasonable pre-estimation of damages, nor is it a reasonable estimate of actual damages determined by the School District that would be incurred by the School District upon late completion and, as a result, is nothing but a penalty provision in the contract; and (3) liquidated damages should not be assessed in a situation where the contractor’s delay caused no actual damages to the School District.

¶ 26. The construction contract was for (1) the installation of gym windows, (2) the renovation of existing restroom facilities (which is referred to as the “500 building”), and (3) the construction of a new metal building (which is referred to as the “100 building”). Paragraph 3.3 of the contract provided:

The Contractor shall achieve Substantial Completion of the entire Work not later than One Hundred Eighty Days (180) from the date of commencement, or as follows:
The Contractor shall achieve Substantial Completion of the entire Work not later than June 6, 2008[,] with final completion being achieved on or before July 6, 2008[,] subject to the terms and conditions of the contract. For each calendar day thereafter that substantial completion of the contract is delayed, liquidated damages will be assessed as follows: Five Hundred Dollars ($500.00) per calendar day. NO EXTENSIONS WILL BE ALLOWED.

The architect gave notice of substantial completion on July 15, 2008. Thus, the project was completed thirty-nine days after the required completion date. The School District withheld payment of $19,500 from the retainage. This suit seeks the recovery of this amount. We only consider the liquidated-damages clause.

¶ 27. There is no dispute that Hovas properly and timely replaced and installed the gym windows.

¶ 28. There appears to be no claim that Hovas was late in the completion of the work for the renovation of the existing restrooms in the 500 building. Instead, as a basis for actual damages, the School District only claims that Hovas’s work on the restrooms was defective. The School District claims only that:

Hovas’ failure to properly renovate the restrooms in the 500 building caused disruptions during the school year as students had to leave the 500 building and go to other buildings on campus during the entire 2008-2009 school year for use of the restrooms. [The School District] incurred additional damages when it had to pay another contractor for remedial work performed on the plumbing Hovas never properly repaired.

The School District’s claims here are not for late performance of the restroom renovation, under paragraph 3.3. The circuit judge found “[t]he delay also caused disruptions during the school year as students were unable to use restrooms in the renovated building. Students had to leave the building to go to other buildings to use the restroom.” Thus, there is evidence that the School District was damaged due to the deficient or defective work of Hovas in the restroom-renovation project. Such damages, however, are not recoverable under paragraph 3.3 for late performance. There was simply no relation between the damages alleged from the defective restroom renovation and the liquidated-damages clause. Thus, I find no basis for the award of liquidated damages under paragraph 3.3 due to defective performance of the restroom renovation, and the remedy for defective performance is separate and distinct from the remedy for late performance.

¶ 29. The only basis for liquidated damages resulted from Hovas’ late completion of the 100 building. The School District argues that there was “no reason Hovas did not complete this project on time even with the delay in receiving the steel building from Ruffin [the supplier].” Hovas argues that the contract called for the construction of a pre-engineered, prefabricated metal special design steel building to house restrooms for men and women, a faculty lounge, and other things. The pre-engineered, prefabricated metal special design steel building was a special construction steel building that would require certain additional special features.

¶ 30. Ruffin Building Systems was the manufacturer and supplier of the pre-engi-neered, prefabricated metal building. Hovas ordered the building from Ruffin on December 20, 2007. On January 16, 2008, Ruffin advised Hovas of a revised contract amount and a change order. Ruffin also advised Hovas that the building was “placed on fabrication hold until signed change order is received by Ruffin.” On February 4, 2008, Ruffin sent Hovas three copies of drawings of the project. On February 7, 2008, Hovas sent three sets of the Ruffin drawings to Charles Laney of JBHM Architects, for approval. On February 21, 2007, Hovas sent one set of drawings marked “Approved” and “Approved as Noted” to Ruffin. On February 28, 2008, Ruffin advised Hovas that the “hold” on the building was removed and delivery was scheduled for “05/05/08.” The steel parts for the building were delivered to the job site on May 5, 2008. The steel building was erected on May 22, 2008. The interior of the steel building could not be completed until the building was received and erected.

¶ 31. The School District’s fall semester began on August 4, 2008. Hovas argues that no loss of use of the building was sustained by the School District. The school was not prevented from occupying the facility prior to the start of the school year.

¶ 32. Larry Green, the Superintendent of Western Line Consolidated School District, by deposition testified:

Q. ... But your contention is that you got possession sometime in the first to middle of July, sometime in that time frame. Is that right?
A. That’s correct.
Q. Okay. Now, school did not open until early August?
A. That’s correct.
Q. All right. Did [the School District] suffer any actual damages as a result of the delay or not?
Counsel for [the School District]: Object to the question.
Q. I’m talking, did you have to pay any money out or anything like that as a result of that?
A. The part that you may be referring to that I’m hearing you from is the building being turned over to the district versus the beginning of the school year. Is that what you’re coming at me with?
Q. No. I’m trying to find out — we’re talking about liquidated damage provision here. But the school didn’t actually suffer any out-of-pocket damages, did it.
Counsel for [the School District]: Same objection.
A. I don’t know what you’re referring to on “damages.”
Q. Well, I’m talking about money.
A. The thing that has been troublesome with it is the fact that it wasn’t completed on the substantial date of completion per the contract. Okay. Now, the preparation has to be done before the school year opens. I’m preparing right now for August. I can’t wait until the week before. If I do, I’m not ready. And my preparation starts many, many days before it. So the addition part, if you will, to the existing building, all the things had to be placed in there in preparation for the school to start. The restroom renovation in the 500 building, that had to be gotten ready for. And both areas there is new floor tile put down. That has got to be taken care of in preparation for school to start.
So all of that had to be done before, you know, the kids came in and the teachers came in. The restrooms in the 500 building have been a continual problem all year long after we took possession of the contractor’s work. So those kind of things had to be done, not to say nothing about the grief it caused me. And I don’t know if you can put a monetary figure on that amount or not. I do have a few gray hairs.

Mr. Green talked about the action necessary for the tile floor. Yet, the tile floor was completed by Hovas before the school year began.

¶ 33. In his book on Mississippi Construction Law, preeminent construction lawyer David Mockbee succinctly stated the applicable law:

[A]ctual damage must be incurred by the owner for a liquidated[-]damage[s] provision to be enforceable. Mississippi courts will not enforce a liquidated[-]damage[s] provision where the assessment of liquidated damages constitutes a penalty, i.e., the liquidated damages assessed must bear some reasonable proportion to the loss actually suffered. Ruckelshaus v. Broward County School Board, 494 F.2d 1164 (5th Cir.1974). The Court in Board of Trustees v. Wood, 779 F.2d 1106, 1107 (5th Cir.1986) (quoting Shields v. Early, 132 Miss. 282, 95 So. 839 (1923)) stated that:
[t]he essence of a penalty is a payment of money stipulated as in terro-rem of the party breaching the contract; while the essence of liquidated damages “is a genuine covenanted pre-estimate of damages.”

See also Vanlandingham v. Jenkins, [207 Miss. 882] 43 So.2d 378 [578] (1950). For example, in Massman Construction Co. v. City Council of Greenville, Mississippi, 147 F.2d 925 (5th Cir.1945) (footnotes omitted), the United States Court of Appeals for the Fifth Circuit, applying Mississippi law, held that liquidated damages would not be assessed in a situation where the contractor’s delay caused no actual damages to the owner. In Massman, Massman Construction Company contracted to work on the construction of a bridge over the Mississippi River at Greenville. The contract entered into by Massman specified liquidated damages for late completion. At the trial it was determined that in fact Massman had consumed 96½ days beyond the contract time to complete its work. In spite of this delay, however, it was shown that Massman’s delay did not result in any delay as to the use of the bridge. Based upon these facts, the court held that since the City had suffered no actual damages, liquidated damages could not be enforced against the contractor. Specifically, the court stated:

Under all the facts and circumstances of this case, the enforcement of the provision in question [the liquidated-damages clause] would be inequitable and unreasonable, and would amount to the infliction of a penalty rather than the allowance of liquidated damages.

David Mockbee, Mississippi Construction Law 275 (2d ed.2005).

¶ 34. The evidence indicated that the construction project was completed twenty days before the start of school. There were no actual damages sustained by the School District. The problems with the restrooms occurred after substantial completion, during the school year following the substantial completion. The damages referred to in the circuit judge’s order occurred “during the school year” after substantial completion. Thus, such damages were not related to delay in the delivery of the building.

¶ 35. There was simply no evidence to support the circuit court’s decision that Hovas’ actions caused a delay in the beginning, opening, or operation of school; caused a loss of use of the building for school operations; or caused the School District to incur any out-of-pocket expenses from the delay. In Massman, Massman’s delay did not result in any delay as to the use of the bridge. Massman, 147 F.2d at 927. Massman held that the City suffered no actual damages in use of the bridge. Id. Here, the School District received the construction project twenty days before the start of school. No actual damages were suffered. As such, the liquidated-damages clause cannot be enforced.

¶ 36. I would reverse the judgment of the circuit court awarding to the Board of Trustees of Western Line Consolidated School District the sum of $19,500 as liquidated damages and render an award in the sum of $19,500 to Hovas against the Board of Trustees of Western Line Consolidated School District, as payment for the balance of the construction price due under the construction contract. Therefore, I respectfully dissent.

BARNES, ISHEE AND CARLTON, JJ., JOIN THIS OPINION.

      . However, I do agree with Judge Griffis that the subsequent problems and inconveniences the school district allegedly suffered relating to the bathrooms cannot and should not have been considered by the trial judge when determining the enforceability of the liquidated-damages provision. So to the extent the trial judge relied on these purported damages, it was improper to do so.

      . In Virginia, “a liquidated damages clause will be construed as an unenforceable penalty ... 'where the stipulated amount would be grossly in excess of actual damages.’ " O'Brian v. Langley Sch., 256 Va. 547, 507 S.E.2d 363, 365 (1998) (quoting Brooks v. Bankson, 248 Va. 197, 445 S.E.2d 473, 479 (1994)). And in Texas, “[i]f the amount stipulated in the liquidated damages clause is ‘shown to be disproportionate to actual damages,' [the court] should declare that the clause is a penalty and limit recovery to actual damages." SP Terrace, L.P. v. Meritage Homes of Texas, LLC, 334 S.W.3d 275, 287 (Tex.Ct.App.2010) (quoting Johnson Eng’rs, Inc. v. TriWater Supply Corp., 582 S.W.2d 555, 557 (Tex.Ct.App.1979)).


author: MAXWELL, J.,

text:
    Bruce Calvin McCOY a/k/a Bruce McCoy a/k/a Bruce C. McCoy, Appellant v. STATE of Mississippi, Appellee. Bruce Calvin McCoy a/k/a Bruce McCoy a/k/a Bruce C. McCoy, Appellant v. State of Mississippi, Appellee. Bruce Calvin McCoy, Appellant v. State of Mississippi, Appellee.
    Nos. 2011-CP-01314-COA, 2011-CP-01315-COA, 2011-CP-01316-COA.
    Court of Appeals of Mississippi.
    Dec. 4, 2012.
    Rehearing Denied April 23, 2013.

      Bruce Calvin McCoy, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Bruce Calvin McCoy appeals the dismissal of his three most recent motions for post-conviction relief (PCR). These motions challenge his convictions of two counts of burglary of a dwelling and one count of burglary of a building. The trial judge dismissed each of these three motions — which were filed more than six years after his guilty pleas and subsequently to another PCR motion — as untimely and successive. McCoy admits his motions are procedurally barred. But he insists several exceptions to the bars exist: (1) newly discovered evidence of the sentencing judge’s bias, (2) an intervening decision of the Mississippi Supreme Court, and (3) a charging flaw in his indictments. He also claims his attorney’s assistance was constitutionally deficient. Because McCoy’s PCR motions assert no viable exceptions to these procedural bars, we too find the motions are untimely and successive. Thus, we affirm.

Background

¶ 2. After pleading guilty to nine different felonies in 2004, McCoy filed a PCR motion in 2005. Review of the denial of his 2005 PCR motion was assigned to this court. McCoy v. State, 941 So.2d 879 (Miss.Ct.App.2006). We previously summarized the background of his case:

McCoy was charged, in four separate indictments on November 10, 2004, for nine different crimes, involving four different victims. On December 6, 2004, McCoy pled guilty to two counts of burglary of a dwelling, one count of burglary of a building, four counts of grand larceny, and two counts of petit larceny. Each of the counts was enhanced under our habitual criminal statute, Mississippi Code Annotated section 99-19-81 (Rev. 2000). At his sentencing hearing held on January 10, 2005, McCoy received a term of incarceration of twenty-five years for both charges of burglary of a dwelling, seven years for the charge of burglary of a building, five years for each of the four grand larceny charges, and six months for the petit larceny charges. All sentences are to run concurrently and without the chance of early release or parole. Various costs, fees, fines and restitution payments were also assessed upon McCoy.

Id. at 880 (¶ 2).

¶ 3. We dismissed McCoy’s appeal without prejudice for failing to file separate motions challenging each judgment as required by Mississippi Code Annotated section 99-39-9(2) (Supp.2012). McCoy, 941 So.2d at 881 (¶ 4). In 2007, McCoy again filed a PCR motion, which the trial judge denied. McCoy appealed, but his appeal was dismissed for failure to pay the costs of the appeal. McCoy v. State, 2007-TS-00951-COA (Aug. 16, 2007).

¶ 4. On March 15, 2011, McCoy filed three separate PCR motions. The trial judge summarily dismissed each of these new motions as untimely and successive. McCoy now appeals. Because he makes essentially the same arguments in each of his three appeals, we have consolidated and addressed them in one opinion.

Standard of Review

¶ 5. We review the dismissal of a PCR motion for abuse of discretion. Burrough v. State, 9 So.3d 368, 371 (¶ 6) (Miss. 2009). A circuit court may summarily dismiss a PCR motion “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Supp.2012). “We will affirm if the petitioner has failed to demonstrate ‘a claim procedurally alive substantially showing denial of a state or federal right.’ ” Mitchener v. State, 964 So.2d 1188, 1192 (¶ 10) (Miss.Ct.App.2007) (quoting Young v. State, 731 So.2d 1120, 1122 (¶9) (Miss.1999)).

Discussion

I. Procedural Bars

¶ 6. The trial court found, and McCoy concedes, that his present PCR motions are procedurally barred. They were filed outside of the the three-year statute of limitations of the Uniform Post-Conviction Collateral Relief Act (UPCCRA). See Miss.Code Ann. § 99-39-5(2) (Supp.2012). And they are successive to his 2007 PCR motion — another bar to our review. See Miss.Code Ann. § 99-39-23(6) (Supp.2012). But McCoy urges three exceptions to these procedural bars exist.

¶ 7. First, he claims newly discovered evidence — that one of the crime victims was the trial judge’s court administrator— shows the trial judge was required to re-cuse himself. Second, McCoy suggests an intervening Mississippi Supreme Court decision would have affected the outcome of his case. Third, he argues his fundamental constitutional rights were violated because his indictment failed to allege all elements of burglary.

A. Newly Discovered Evidence

¶ 8. McCoy is correct that newly discovered evidence, if outcome determinitive, provides an exception to both procedural bars. See Miss.Code Ann. §§ 99-39-5(2)(a)(i) (recognizing exception to three-year statute of limitations for newly discovered evidence) and 99-39-23(6) (providing exception to successive-writ bar for newly discovered evidence). Newly discovered evidence is “evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence.” Miss.Code Ann. § 99-39-23(6). To prevail on this exception, McCoy must show evidence that is both newly discovered and material to the outcome of his convictions.

¶ 9. McCoy suggests he recently learned from an old newspaper article that one of the burglary victims, Laurie Chaison, was the trial judge’s court administrator. McCoy argues the trial judge should have recused on this basis and that he was prejudiced because Chaison testified at his sentencing.

¶ 10. We find Chaison’s role as court administrator was neither “newly discovered evidence” nor material to the outcome of McCoy’s convictions and sentences. “The term ‘newly discovered evidence’ refers to evidence, that is, an exhibit, testimony, or some other information that could have been offered as evidence in the defendant’s trial but was not offered because it was not reasonably discoverable at the time of the trial.” Pickle v. State, 942 So.2d 243, 246 (¶12) (Miss.Ct.App.2006). McCoy was sentenced on January 7, 2005. And according to the trial judge, Chaison did not become court administrator until February 14, 2005, over a month after McCoy was sentenced. So his “evidence” of the trial judge’s bias — that his court administrator was one of the victims — did not exist at the time of McCoy’s sentencing and, thus, could not have been offered at the time of McCoy’s sentencing. But more importantly, Chaison’s supervisor, Judge Mike Taylor, did not sentence McCoy. Instead, it was his predecessor, Judge Mike Smith, who presided over McCoy’s sentencing.

¶ 11. Because we find McCoy’s bias claim is not supported by the record, the procedural bars remain intact.

B. Intervening Decision of the Mississippi Supreme Court

¶ 12. Another exception to the successive-writ bar and three-year statute of limitations applies when the PCR movant can show “an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence!)]” Miss.Code Ann. §§ 99 — 39—5(2)(a)(i) and 99-39-23(6).

¶ 13. The intervening decision McCoy points to is the Mississippi Supreme Court’s opinion in Jackson v. State, 2008-CT-00074-SCT, 2010 WL 1239528 (Apr. 1, 2010). However, this opinion was withdrawn. The supreme court withdrew this opinion on July 28, 2011, and issued a substitute opinion. See Jackson v. State, 67 So.3d 725 (Miss.2011). Therefore, the original opinion in Jackson has no prece-dential value. To the extent McCoy relies on language in the substituted opinion— that “when a person is indicted for capital murder predicated on burglary, the indictment must state the underlying offense that comprised the burglary” — we note that McCoy did not face the heightened pleading requirements of a capital-murder charge. Rather, he pled guilty to three burglaries. And Jackson did not alter or modify the elements or general pleading requirements for burglaries. So it has no affect on the outcome of McCoy’s convictions or sentences, and his claims remain barred.

C. Violation of a Fundamental Constitutional Right

¶ 14. While his suggested intervening decision exception fails, McCoy also seeks relief under the Rowland exception. See Rowland v. State, 42 So.3d 503, 506 (¶ 9) (Miss.2010) (“holding], unequivocally, that errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA”). He argues the three burglary counts failed to sufficiently allege the specific crime he intended to commit upon entering the dwellings and storage building, thus violating his fundamental constitutional rights. We disagree.

¶ 15. To establish burglary, two elements must be proven: “(1) an unlawful breaking and entering, and (2) the intent to commit some crime once entry has been gained.” Harrison v. State, 722 So.2d 681, 685 (¶ 11) (Miss.1998) (quoting Alford v. State, 656 So.2d 1186, 1192 (Miss.1995)). “[T]he crime of burglary does not contain two separate and distinct ‘subcrimes[.]’ ” Booker v. State, 716 So.2d 1064, 1067 (¶ 12) (Miss.1998). “Rather, the intent to commit some crime, be it a felony or a misdemeanor, is simply an element of the crime of burglary.” Id. at 1068 (¶ 12) (citing Ashley v. State, 538 So.2d 1181, 1184 (Miss.1989)).

¶ 16. Though McCoy’s indictments did not specifically state the ulterior offense he allegedly intended to commit upon entry, “[t]he allegation of the ulterior [crime] intended need not ... be set out as fully and specifically as would be required in an indictment for the actual commission of that [crime].” Booker, 716 So.2d at 1068 (¶ 12) (quoting 13 Am.Jur.2d Burglary § 36 (1964)). When burglaries are charged, “[i]t is ordinarily sufficient to state the intended offense generally, as by alleging an intent to steal, or commit the crime of larceny, rape or arson.” Id. (emphasis added). Here, McCoy’s two indictments for burglary alleged his “intent to steal.” Thus, the underlying offense was alleged generally. McCoy was not exposed to a situation where the State merely alleged a burglary but left him guessing about what type of offense it would claim he intended to commit after he broke into the dwelling and building.

¶ 17. The two dwelling-burglary counts charged that he broke into and entered the victim’s dwelling house “by forcing an outer door of said dwelling house, with the intent to take, steal and carry away the goods and chattels, of value ... in violation of Section 97-17-23.” (Emphasis added). See Miss.Code Ann. § 97-17-23(1) (Supp.2012). His indictment for burglary of a building alleged he broke into and entered a “certain storage building ... by forcing an outer door of said storage building, with the intent to take, steal and carry away the goods and chattels, of value ... in violation of Section 97-17-33.” (Emphasis added). This particular statute criminalizes non-dwelling burglaries whether they are charged by alleging an “intent to steal therein, or to commit any felony.” Miss.Code Ann. § 97-17-33 (Rev.2006). Since McCoy’s three indictments sufficiently pled his intent to steal, each burglary charge is structurally sound. Absent any infirmities in his charging documents, we find no violation of his fundamental constitutional rights, and thus no exception to the procedural bars.

II. Ineffective Assistance of Counsel

¶ 18. McCoy also argues his attorney’s representation amounted to ineffective assistance of counsel. In some instances, a lawyer’s performance may be so deficient and so prejudicial “that the defendant’s fundamental constitutional rights were violated.” Bevill v. State, 669 So.2d 14, 17 (Miss.1996). But the mere assertion of a claim of ineffective assistance is not enough overcome the procedural bars. Id. “[W]e must examine [McCoy’s] claim of ineffective assistance of counsel before determining whether it qualifies as an exception to the procedural bar.” Smith v. State, 922 So.2d 43, 47 (¶ 9) (Miss.Ct.App.2006).

¶ 19. To prevail on a claim of ineffective assistance of counsel, McCoy must show: (1) his counsel’s performance was deficient, and (2) the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To perform deficiently, an attorney must fail to meet “an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. Prejudice is established only upon showing a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. In the context of guilty pleas, this means the defendant “must show that, were it not for counsel’s errors, he would not have [pled] guilty and would have insisted on going to trial.” Burrough v. State, 9 So.3d 368, 375 (¶ 22) (Miss.2009).

¶ 20. While McCoy alleges a variety of deficiencies on his attorney’s part, his primary challenges are premised on his earlier-claimed exceptions to the procedural bars. Specifically, he argues his attorney was deficient for failing to advise him of the conflict arising from the trial judge’s court administrator being one of the burglary victims. And he recasts his argument about the deficiencies in the indictment related to the burglary counts, claiming his attorney was ineffective for failing to recognize that the underlying offense was not specifically charged. Having already rejected his substantive arguments about the trial judge’s alleged bias and the sufficiency of the burglary counts, we find his attorney was not ineffective for failing to raise these arguments.

¶ 21. As to his suggestion that he would not have plead guilty had he been informed of the required elements of burglary, the record shows he acknowledged under oath during his guilty plea that his attorney had advised him of the elements. The “specificity” necessary to establish an ineffective-assistance claim “requires more than a party’s own affidavit or mere assertions made within his brief.” Clark v. State, 54 So.3d 304, 308 (¶ 13) (Miss.Ct.App.2011) (citing Vielee v. State, 653 So.2d 920, 922 (Miss.1995)). And here, McCoy provides no affidavits to support his arguments, and his brief alone is insufficient to support his claims. “A plea is considered voluntary and intelligent when the defendant is advised concerning the nature of the charge against him and the consequences of the plea.” Ivy v. State, 918 So.2d 84, 86 (¶ 10) (Miss.Ct.App.2006) (citing Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991)). The record shows the trial judge advised McCoy of the nature of the burglary charges against him. McCoy also acknowledged he understood the charges, and his attorney had explained the elements of the crimes to him. During his plea hearing, McCoy asserted he was voluntarily pleading guilty, and that he was satisfied with his attorney’s representation of him. Absent supporting affidavits or record evidence that contradicts his sworn testimony, we cannot find McCoy’s attorney was ineffective.

¶ 22. Because we find McCoy merely argues ineffective assistance without demonstrating an actual claim, we affirm the trial court’s application of the procedural bars to this claim as well. See Smith, 922 So.2d at 47 (¶ 9).

¶ 23. THE JUDGMENTS OF THE LINCOLN COUNTY CIRCUIT COURT DISMISSING THE MOTIONS FOR POST-CONVICTION RELIEF ARE AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

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

      . McCoy was charged with various offenses in four separate indictments — two counts of burglary of a dwelling, one count of burglary of a building, four counts of grand larceny, and two counts of petit larceny. He only contests his three burglary convictions.

      . Jackson, 67 So.3d at 728 (¶ ) (emphasis added) (citing State v. Berryhill, 703 So.2d 250, 254-56 (Miss.1997)).


author: ROBERTS, J.,

text:
    Christopher D. ALLEN a/k/a Christopher Delynn Allen a/k/a Christopher Allen, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00391-COA.
    Court of Appeals of Mississippi.
    April 2, 2013.

      Lesa Harrison Baker, Brookhaven, Hunter Nolan Aikens, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. A jury sitting before the Lincoln County Circuit Court found Christopher Allen guilty of conspiring to sell amphetamines to a confidential informant (Cl). Allen claims the circuit court erred when it denied his request for a circumstantial-evidence instruction. Additionally, Allen claims there was insufficient evidence to sustain his conspiracy conviction. Finally, Allen argues that his conspiracy conviction is contrary to the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Allen’s conviction stems from his interaction with a CI who informed law-enforcement officers that he had previously bought Adderall, a prescription medication' that contains amphetamine, from Allen and Allen’s girlfriend, Julie Thornton. Deputy Keith Dickerson of the Lincoln County Sheriffs Department and Officer John Douglas of the Brookha-ven Police Department met the Cl at a pre-buy location. The law-enforcement officers gave the Cl money to buy Adde-rall from Thornton and Allen. The law-enforcement officers also wired the Cl with audio and visual surveillance equipment.

¶ 3. The Cl called Thornton, and they arranged a place to meet. However, they did not specifically mention the purpose of their meeting during that initial phone call. Sometime later, Allen called the Cl. That phone call was not recorded. At trial, the Cl testified that he and Allen clarified the location where they planned to meet-which was on property that Allen’s family owned. Again, they did not specifically mention buying or selling Adderall, although the Cl had previously purchased Adderall from Allen, who had a prescription for Adderall.

¶ 4. When the Cl arrived at the prearranged meeting place, the Cl gave money to Thornton, and Thornton gave the Cl four Adderall pills. Allen was driving the vehicle in which he and Thornton had arrived. However, it was Thornton who actually conducted the exchange. Allen never got out of the vehicle, although he was sitting inside his vehicle, which was mere feet from the exchange between Thornton and the Cl.

¶ 5. The Cl returned to the officers. He gave Deputy Dickerson the Adderall pills. Those pills were later sent to the Mississippi Crime Laboratory, where forensic scientist Alison Conville confirmed that they were actually Adderall pills.

¶ 6. Thornton and Allen were each indicted on one count of the unlawful sale of amphetamine and one count of conspiracy to sell amphetamine. Thornton pled guilty to both charges. Allen opted for trial. At Allen’s trial, Deputy Dickerson testified that Allen had a prescription for Adderall. However, Deputy Dickerson admitted that he never heard Allen discuss transferring pills. Officer Douglas also testified that he never heard any mention of exchanging pills during the phone conversations between the Cl and Thornton or Allen. The Cl testified that he and Allen only discussed where to meet. According to the Cl, he and Allen never specifically mentioned that the Cl would be giving Allen money in exchange for Adderall pills. However, the prosecution introduced the audio and visual recordings that were captured on the equipment that was wired to the Cl. Thornton testified that she did not have a prescription for Adderall. Although Thornton testified that she had received Adderall pills from Allen in the past, she also testified that she could not remember where she got the Adderall pills that she sold to the Cl.

¶ 7. During the conference on jury instructions, Allen requested a circumstantial-evidence instruction. However, the circuit court denied Allen’s request. Ultimately, the jury found Allen not guilty of selling amphetamine. However, the jury found Allen guilty of conspiracy to sell amphetamine. The circuit court sentenced Allen to twelve years in the custody of the Mississippi Department of Corrections, with six years suspended and six years to serve, followed by five years of post-release supervision. Following his unsuccessful post-trial motions for a judgment notwithstanding the verdict (JNOV) or a new trial, Allen appeals. Allen claims the circuit court erred when it denied his request for a circumstantial-evidence instruction. He also claims that there was insufficient evidence to sustain his conspiracy conviction. Finally, Allen claims his conviction is contrary to the overwhelming weight of the evidence.

ANALYSIS

I. CIRCUMSTANTIAL-EVIDENCE INSTRUCTION

¶ 8. Allen claims the circuit court erred when it denied his request for a circumstantial-evidence instruction. According to Allen, he was entitled to a circumstantial-evidence instruction because there was no direct evidence that he and Thornton entered into a conspiracy to sell the Adderall pills.

¶ 9. “Jury instructions 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.

¶ 10. “Circumstantial evidence is evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such [a] fact does exist.” McInnis v. State, 61 So.3d 872, 875 (¶ 11) (Miss.2011) (quotations omitted). “A circumstantial-evidence instruction provides that the State must prove the defendant guilty beyond a reasonable doubt and to the exclusion of all reasonable hypotheses consistent with innocence.” Id. at 875-76 (¶ 11). If any evidence qualifies as “direct” evidence, a circuit court may refuse a circumstantial-evidence instruction. Id. at 876 (¶ 13).

¶ 11. One example of direct evidence is a defendant’s confession or admission to a “significant element of the offense.” Id. (quotations omitted). Another example of direct evidence is “eyewitness testimony to the gravamen [] of the offense charged.” Id. Video evidence may also qualify as direct evidence. Golden v. State, 860 So.2d 820, 823 (¶ 15) (Miss.Ct.App.2003).

¶ 12. For there to be a conspiracy, “there must be recognition on the part of the conspirators that they are entering into a common plan and knowingly intend to further its common purpose.” Franklin v. State, 676 So.2d 287, 288 (Miss.1996). “The conspiracy agreement need not be formal or express, but may be inferred from the circumstances, particularly by declarations, acts, and conduct of the alleged conspirators.” Id. “Furthermore, the existence of a conspiracy, and a defendant’s membership in it, may be proved entirely by circumstantial evidence.” Id. In this case, there is circumstantial evidence of Allen’s recognition of a common plan to sell Adderall pills to the Cl. However, there is direct evidence that Allen knowingly intended to further that common purpose.

¶ 13. Allen had a prescription for Adde-rall. The Cl and Deputy Dickerson both testified that Allen told the Cl to meet him and Thornton on property that belonged to Allen’s family. A subsequent conversation between the Cl and Thornton was recorded and played for the jury. During that conversation, the Cl asked Thornton where to meet. Thornton relayed the question to someone who was with her, and a male voice replied. Thornton then described the location to the Cl. Deputy Dickerson testified that he heard Allen call the Cl and ask whether the Cl was close to the arranged meeting location. According to Allen, he and Thornton were close to the arranged meeting location. Surveillance equipment showed the Cl stop close to Allen’s vehicle. The Cl got out of his car while Allen remained in the driver’s seat of his car. Allen was mere feet from Thornton when she and the Cl exchanged Adderall for money.

¶ 14. In Ford v. State, 546 So.2d 686, 689 (Miss.1989), the Mississippi Supreme Court held that a circumstantial-evidence instruction was not warranted when the prosecution in that case had presented direct evidence in the forms of eyewitness testimony that Ford had been present during bank robberies and photographic surveillance images that depicted Ford as he acted as a lookout for a co-conspirator.

¶ 15. In Golden, 860 So.2d at 821 (¶ 2), surveillance videos captured images of a casino cashier as she attached $1.00 bills to bound stacks of $100 bills and later delivered that money to a co-conspirator in an “unorthodox transaction.” That cashier was later convicted of embezzlement and conspiracy. Id. This Court held that the cashier was not entitled to a circumstantial-evidence instruction because the surveillance footage was direct evidence of the cashier’s involvement and the evidence was not “wholly circumstantial.” Id. at 823-24 (¶15).

¶ 16. Through eyewitness testimony and evidence captured by surveillance equipment, there was direct evidence that (1) Allen arranged a meeting location for the illegal exchange and (2) Allen drove Thornton to that location to conduct the illegal exchange. Based on the direct evidence of Allen’s involvement, the circuit court did not err when it denied Allen’s request for a circumstantial-evidence instruction. It follows that there is no merit to this issue.

II. SUFFICIENCY OF THE EVIDENCE

¶ 17. Next, Allen claims there was insufficient evidence to find him guilty of conspiracy to sell Adderall pills. According to Allen, the only evidence that he conspired to sell Adderall pills consisted of the fact that he had a prescription for Adderall, that he briefly discussed the location where he and Thornton were to meet the Cl, and that he drove the vehicle to the place where Thornton sold Adderall pills to the Cl. Allen argues that the circuit court erred when it denied his motion for a JNOV.

¶ 18. 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. (internal citations and quotations omitted).

¶ 19. Allen cites King v. State, 580 So.2d 1182, 1188 (Miss.1991), for the principle that one’s “[m]ere presence at the scene of the crime, even when coupled with knowledge that a crime is being committed, is insufficient to establish membership in a conspiracy.” Allen also notes that one’s “mere association with conspirators is similarly insufficient.” Id. (citation omitted). Similarly, merely accompanying someone or leading someone to a drug deal is insufficient to prove conspiracy. See Johnson v. State, 642 So.2d 924, 928 (Miss.1994). However, Allen was not merely present at the crime scene. Nor did Allen merely accompany Thornton. Allen chose the scene of the crime when he decided that the Cl should meet him and Thornton on property that Allen’s family owned. Allen drove Thornton to that location. Allen also called the Cl to ensure that the Cl was going to successfully arrive at the location that Allen had chosen. Although there was circumstantial evidence of Allen’s agreement to enter a common plan to sell Adderall to the Cl, such an agreement “need not be formal or express, but may be inferred from the circumstances, particularly by declarations, acts, and conduct of the alleged conspirators.” Ford, 546 So.2d at 688 (citation omitted). Based on the foregoing discussion, we find no merit to this issue.

III. WEIGHT OF THE EVIDENCE

¶ 20. Finally, Allen claims his conspiracy conviction is contrary to the overwhelming weight of the evidence. We are mindful that as we review the circuit court’s decision to deny a 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). The supreme court has further instructed that when reviewing a circuit 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 and internal citations and quotations omitted).

¶ 21. Viewing the evidence in the light most favorable to the verdict, we find that it would not sanction an unconscionable injustice to allow Allen’s conspiracy conviction to stand. Accordingly, we will not disturb the jury’s verdict. We find no merit to this issue.

¶ 22. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF CONVICTION OF CONSPIRACY TO SELL AMPHETAMINE AND SENTENCE OF TWELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH SIX YEARS SUSPENDED AND SIX YEARS TO SERVE FOLLOWED BY FIVE YEARS OF POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

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

      . Although the Cl's name appears in the record, to protect his anonymity, we have omitted it from this opinion.

      . “The term ‘gravamen’ is defined as the ‘substantial point or essence of a claim, grievance. or complaint.'” McInnis, 61 So.3d at 876 (¶ 13) (citation omitted).


author: IRVING, P.J.,

text:
    Peggy GARRARD, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2012-CC-00274-COA.
    Court of Appeals of Mississippi.
    April 2, 2013.

      Peggy Garrard, appellant, pro se.
    Albert B. White, Madison, Leanne F. Brady, attorneys for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. This appeal arises from a decision of the Lowndes County Circuit Court, affirming the finding of the Board of Review (the Board) of the Mississippi Department of Employment Security (MDES) that Peggy Garrard is not entitled to unemployment compensation benefits. Feeling aggrieved, Garrard appeals and argues that the circuit court erred in affirming the Board’s ruling.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Garrard worked as a newspaper carrier for the Commercial Dispatch Publishing Company (the Dispatch) in Columbus, Mississippi, for thirteen years. Garrard’s job required her to pick up newspapers from one of the Dispatch’s locations and deliver them to customers along her assigned routes. At the time of her termination, Garrard delivered newspapers along five routes.

¶ 4. On May 16, 2010, the Dispatch terminated Garrard due to customers’ complaints, her use of vulgar language, and her repeated failure to meet with managers at the Dispatch to discuss the customers’ complaints. After her termination, Garrard applied for unemployment benefits through the MDES. A MDES claims examiner determined that Garrard had committed misconduct and was disqualified from receiving unemployment benefits. Garrard filed an appeal, which was heard by an administrative law judge (ALJ). The ALJ conducted a telephonic hearing, at which Garrard; Peter Imes, the Dispatch’s operations manager; and Barbara Carol Talley, the Dispatch’s circulation manager, testified. While the Dispatch failed to offer any documentary evidence, Garrard offered: (1) her employment contract, (2) her termination letter, (3) examples of handwritten letters that she left with customers concerning payment methods and the timely delivery of their newspapers, and (4) a copy of a letter from the Dispatch to all of its subscribers along Garrard’s routes.

¶ 5. Imes testified that the Dispatch considered Garrard an independent contractor, not entitled to unemployment benefits. Alternatively, Imes maintained that if MDES classified Garrard as an employee subject to unemployment benefits, the Dispatch’s position is that Garrard is still not entitled to any benefits, as it terminated Garrard for misconduct. According to Imes, two things led to Garrard’s discharge — excessive errors in delivering the papers and gross insubordination. Imes stated that the customers’ complaints began soon after Garrard began delivering papers on a new route. The Dispatch’s circulation supervisor contacted Garrard five times and requested that she come into the office and meet with him about the complaints. For reasons unknown, Gar-rard refused. Imes admitted that he and Talley collectively decided to terminate Garrard.

¶ 6. Talley testified that she and another manager contacted Garrard and asked her to come into the office to discuss the customers’ complaints. The Dispatch would call Garrard every time a customer on one of her routes called to say that the customer had not received a paper or had received a rude note with the paper. Talley mentioned that she had one note from a customer that Garrard allegedly wrote on a brown paper bag, demanding that the customer pay her bill. Talley admitted that she and another manager had scheduled a meeting with Garrard but could not remember why that meeting had to be cancelled.

¶ 7. Garrard testified that prior to her termination, the managers were never concerned about her delivery methods. According to Garrard, the managers also never mentioned any customers’ complaints. Garrard denied using vulgar language with any of the managers at the Dispatch, and she denied leaving rude notes with the customers’ newspapers. Garrard admitted that, despite numerous requests from her managers, she did not meet with anyone from the Dispatch to discuss the alleged customers’ complaints.

¶ 8. After the telephonic hearing, the ALJ ruled that the Dispatch discharged Garrard after repeated insubordination. Therefore, the ALJ found that Garrard had been discharged for misconduct and was disqualified from receiving unemployment benefits. Garrard appealed the ALJ’s decision to the Board. The Board adopted the ALJ’s findings of fact and affirmed the ALJ’s decision. Garrard then appealed the Board’s decision to the circuit court. The circuit court, finding that the Board’s decision was supported by substantial evidence, affirmed the Board’s decision to deny Garrard unemployment benefits.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 10. An appellate court will overturn an agency’s decision only when that decision: “1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates [the claimaint’s] constitutional rights.” Allen v. Miss. Emp’t Sec. Comm’n, 639 So.2d 904, 906 (Miss.1994) (citations omitted). If the Board’s findings of fact are supported by substantial evidence, those findings “shall be conclusive, and the jurisdiction of the [appellate] court[s] shall be confined to questions of law.” Miss.Code Ann. § 71-5-531 (Rev.2011).

¶ 11. Mississippi Code Annotated section 71-5-513(A)(1)(b) (Supp.2012) provides that “an individual shall be disqualified for [unemployment] benefits ... for misconduct connected with his work, if so found by the department....” The Mississippi Supreme Court has defined misconduct as:

conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, [come] within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inad-vertences and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion [are] not considered “misconduct” within the meaning of the statute.

Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982) (citation omitted). The employer carries the burden to demonstrate misconduct. Trading Post, Inc. v. Nunnery, 731 So.2d 1198, 1202 (¶ 15) (Miss.1999).

¶ 12. Here, Garrard contends that, because the Dispatch failed to present any evidence of misconduct, MDES’s decision was not based on substantial evidence. We disagree. While it is true that the Dispatch did not submit any documents detailing the customers’ complaints or showing the number of unsuccessful attempts to contact Garrard, it did present testimony from Imes and Talley, which conflicted with Garrard’s testimony. Further, in the hearing before the ALJ, Gar-rard admitted that she had refused to meet with her managers at the Dispatch to discuss the alleged customers’ complaints, even when it became obvious that her continued employment with the Dispatch was in jeopardy because of her refusal to meet with her managers. While there was conflicting testimony between the Dispatch’s representatives and Garrard concerning the customers’ complaints and the numerous attempts to meet with Garrard to discuss them, the Board is entitled to accept the testimony of one witness over another. See Magee v. Miss. Dep’t of Emp’t Sec., 77 So.3d 1159, 1163 (¶9) (Miss.Ct.App.2012). Furthermore, “[the applicable] standard of review does not permit this Court to second guess how the Board resolves conflicting testimony.” Id. (quoting Quinn v. Miss. Dep’t of Emp’t Sec., 56 So.3d 1281, 1283 (¶ 9) (Miss.Ct.App.2011)).

¶ 13. Based on the above, we find that the circuit court did not err in affirming the Board’s decision. While there was little evidence concerning the alleged customers’ complaints, there was substantial evidence that Garrard was insubordinate when she continuously refused to meet with her superiors to address business concerns. This insubordination constituted misconduct and disqualified Garrard from receiving unemployment benefits. Accordingly, this issue is without merit.

¶ 14. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT IS AFFIRMED.

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


text:
    Raven Skye Boyd MAURER, Appellant v. Michael Thomas BOYD, Appellee.
    No. 2011-CP-01409-COA.
    Court of Appeals of Mississippi.
    April 9, 2013.

      Raven Skye Boyd Maurer, appellant, pro se.
    Michael Thomas Boyd, appellee, pro se.
    Before GRIFFIS, P.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Under Rule 54(b) of the Mississippi Rules of Civil Procedure, a judgment affecting “one or more but fewer than all of the claims” is not final unless the trial judge expressly determines “there is no just reason for delay” and explicitly directs “the entry of the judgment.” Here, the chancellor in this heated domestic case decided a variety of disputed issues, including holding the father in contempt for back child-support payments and deciding the father was entitled to a reduction in child support. However, while the chancellor issued what she labeled a “final judgment,” she requested the parties submit proposed findings of fact and conclusions of law on the arrearage and child-support modification issues. There is nothing to show the parties submitted these requested findings, nor does the record indicate that the chancellor ever decided the appropriate arrearage award or decided the amount of the newly reduced support obligations. Because the judgment appealed from neither finally adjudicated all claims nor was certified as a final judgment under Rule 54(b), we must dismiss the appeal for lack of jurisdiction.

Facts and Procedural History

¶ 2. Raven Skye Boyd Maurer and Michael Thomas Maurer received an irreconcilable-differences divorce on June 27, 2006. They agreed to share joint legal custody of their two daughters, with Raven having primary physical custody. Michael received reasonable visitation and agreed to make monthly child-support payments.

¶ 3. On January 24, 2007, Michael filed a petition for emergency custody, alleging Raven’s behavior had become so erratic that it was no longer in the children’s best interests to remain in her care. Attached to the petition was an affidavit by Raven’s mother, Wanda Phillips. Wanda claimed that, while the children were with Raven, they were frequently left unsupervised, exposed to cigarette smoke and alcohol, and subjected to Raven’s tumultuous relationship with her live-in boyfriend.

¶ 4. Raven contested the petition, instead suggesting that the couple’s oldest child had been displaying abnormal sexual behavior and that Michael was responsible. According to Raven, she reported her suspicions to law enforcement two weeks before Michael filed his petition. Chancellor James Thomas awarded Michael temporary custody of the children pending the outcome of the child-custody dispute and appointed a guardian ad litem to investigate Raven’s sexual-abuse allegations.

¶ 5. In August 2008, the parties agreed to revert to the original custody arrangement, which gave Raven primary physical custody of the children and Michael reasonable visitation rights. Chancellor Thomas approved and confirmed the agreement by written order. He also instructed the parties to continue complying with the child-abuse investigation.

¶ 6. On October 15, 2008, based on the sexual-abuse allegations, Michael was indicted in Marion County on one count of touching and fondling a child for lustful purposes. The criminal bond Michael executed after his arrest was conditioned on him having no contact with his children or Raven while the charge was pending. After Michael’s arrest, Raven applied for a temporary restraining order prohibiting him from contacting the children, which Chancellor Thomas denied. He instead, sua sponte, awarded Michael supervised visitation with the children over the Christmas holidays. Raven then sought and obtained a protective order against Michael in Covington, Louisiana. To avoid violating the terms of his criminal bond and the Louisiana protective order, Michael refrained from communicating with his children. In June 2010, the State nolle prossed Michael’s indictment based on a lack of evidence.

¶ 7. On June 10, 2010, Raven filed a petition for contempt and to terminate Michael’s parental rights, alleging Michael had neither paid child support nor communicated with his children since September 2008. Over the next year, the parties pelted each other with contempt motions, continuously fighting over visitation rights and child-support payments. The case was eventually reassigned to Chancellor Deborah Gambrell, who, on August 16, 2011, held a hearing on Raven’s petition to terminate parental rights, Michael’s motion to extend visitation and to modify child support, and the parties’ many contempt motions.

¶ 8. Based on testimony from Raven, Michael, and Wanda as well as the recommendation of the guardian ad litem, Chancellor Gambrell issued a “final judgment” denying Raven’s petition and finding Michael in contempt for his failure to pay child support. But rather than setting the amount of child-support arrearage, the chancellor instructed the parties to submit proposed findings of fact and conclusions of law addressing the issue. Chancellor Gambrell also found Michael was entitled to a reduction in child-support payments because of his decline in employment compensation. So she likewise instructed the parties to address the reduction amount in their subsequent filings. The chancellor also ordered the parties to participate in family counseling and instructed the counselor to conduct a forensic review of the evidence to determine if Raven’s allegations against Michael could be substantiated. And though Chancellor Gambrell declined to sanction Raven for her “contumacious and inflammatory actions,” she ordered Raven to execute a ne exeat bond to ensure her compliance with the judgments and orders of the court.

¶ 9. On appeal, Raven, acting as her own counsel, raises a host of issues, but before addressing them, we must determine whether we have jurisdiction to consider her appeal.

Discussion

¶ 10. Jurisdictional matters are questions of law, which we review de novo. Canadian Nat’l Ry. Co. v. Wattman, 94 So.3d 1111, 1115 (¶ 6) (Miss.2012) (citing Knight v. Woodfield, 50 So.3d 995, 998 (¶ 11) (Miss.2011)). While the parties have not addressed the appealability of the chancellor’s order, we must examine the question on our own initiative. M.W.F. v. D.D.F., 926 So.2d 897, 899 (¶ 4) (Miss.2006) (citing Williams v. Delta Reg’l Med. Ctr., 740 So.2d 284, 285 (¶ 5) (Miss.1999)).

¶ 11. As a general rule, only final judgments are appealable. See Miss. Code Ann. § 9-3-9 (Rev.2002); Miss.Code Ann. § 11-51-3 (Rev.2012); M.R.A.P. 5. “A final, appealable[ ] judgment is one that ‘adjudicates the merits of the controversy which settles all issues as to all the parties’ and requires no further action by the [trial] court.” Watters v. Watters, 956 So.2d 1050, 1053 (¶ 8) (Miss.Ct.App.2007) (citation omitted). “When all the issues in a case or claims against all the parties are not resolved in a judgment, no appeal of right can be taken.” Thompson v. True Temper Sports, Inc., 74 So.3d 936, 938 (¶ 6) (Miss.Ct.App.2011) (quoting Williams v. Bud Wilson’s Mobile Home Serv., 887 So.2d 830, 832 (¶ 5) (Miss.Ct.App.2004)).

¶ 12. We find Chancellor’s Gam-brell’s order, while entitled “final judgment,” is not a final, appealable judgment. Though the chancellor addressed the vast majority of disputed issues, we do not find where the chancellor decided on an amount of arrearage after holding Michael in contempt for failure to pay child support. Nor did the chancellor determine the amount of child support Michael must pay after she found Michael was entitled to a reduction in his support obligation based on a decline in his employment compensation. Until the chancellor resolves these issues, the particular claims are left hanging, and the judgment is not final.

¶ 13. While limited exceptions to the final-judgment rule exist, none are applicable here, since the chancellor neither “direct[ed] the entry of a final judgment as to one or more but fewer than all of the claims” nor “express[ly] determin[ed] that there is no just reason for delay” in entering a partial judgment. M.R.C.P. 54(b). Absent such certification, “any order in a multiple[-]party or multiple[-]claim action, even if it appears to adjudicate a separable portion of the controversy, is interlocutory” for purposes of appeal. M.R.C.P. 54 cmt. And an interlocutory order, like the one before us, is not appealable unless the supreme court expressly grants permission under Mississippi Rule of Appellate Procedure 5. Bierman v. Kreunen, 912 So.2d 498, 501 (¶ 8) (Miss.Ct.App.2005) (citing Moody v. Harrison Cnty. Bd. of Sup’rs, 867 So.2d 274, 275 (¶3) (Miss.Ct.App.2004)).

¶ 14. Because Raven neither sought nor obtained permission to appeal the interlocutory order under Rule 5, we must dismiss her appeal for lack of jurisdiction.

¶ 15. THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    J. Paul STOCKWELL d/b/a Paul Stockwell and Company, Appellant v. DRAPERTON, LLC, Appellee.
    No. 2012-CA-00561-COA.
    Court of Appeals of Mississippi.
    April 16, 2013.

      James Howard Murphy, Flowood, attorney for appellant.
    James L. Martin, Madison, attorney for appellee.
   IRVING, P.J.,

for the Court:

¶ 1. Draperton LLC filed a complaint in the Madison County Chancery Court seeking specific performance from J. Paul Stockwell pursuant to a construction contract. The chancery court held that specific performance was an inappropriate remedy and dismissed Draperton’s complaint. Draperton then filed a motion to compel arbitration in the Madison County Circuit Court, which granted the motion. Stockwell appeals and claims that Draper-ton has waived its right to arbitration by actively participating in litigation, taking action inconsistent with the right of arbitration, and causing an unreasonable delay in litigation. Draperton, in turn, argues that because Stockwell successfully interposed arbitration as the proper remedy in the chancery action, he is now judicially estopped from arguing that it has waived its right to arbitration.

¶ 2. Finding no error in the circuit court’s decision, we affirm.

FACTS

¶ 8. Draperton owns a commercial-office-building complex known as Draperton at Trace Colony Park, located in Ridgeland, Mississippi. Draperton and Stockwell entered into a construction agreement in which Draperton agreed to construct an office building for Stockwell in Draperton at Trace Colony Park, and Stockwell would purchase the building through financing. Construction commenced pursuant to the agreement, and during the course of construction, several changes were made to the plans at the request and approval of Stockwell, which increased the contract price. According to the agreement, Drap-erton was to convey the title of the building to Stockwell when the following three conditions were met: the building was completed, the City of Ridgeland issued a certificate of occupancy, and Stockwell paid the contract price plus construction interest and interest on the promissory note. The agreement also contained an arbitration clause that required arbitration in the event of a dispute involving the contract price, with one exception: Drap-erton had the right to seek specific performance if Stockwell refused or otherwise failed to complete the purchase.

¶ 4. Draperton and Stockwell agreed that the closing of the sale and purchase would occur within five days after issuance of the certificate of occupancy. Stockwell failed to consummate the purchase of the building, claiming that he could not obtain financing to pay for the building.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

I. Waiver of Right to Arbitration

¶ 6. Appellate courts review the grant or denial of a motion to compel arbitration under a de novo standard of review. Century 21 Masell and Assocs., Inc. v. Smith, 965 So.2d 1031, 1035 (¶ 6) (Miss.2007). The Mississippi Supreme Court has held that arbitration can be waived where a party “actively participates in a lawsuit or takes other action inconsistent with the right to arbitration.” Id. at 1036 (¶ 8) (quoting Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 619 So.2d 908, 914 (Miss.1993)). The supreme court has added that arbitration can be waived when a party “substantially invokes the judicial process to the detriment or prejudice of the other party,” which includes not filing a motion to compel arbitration within a reasonable time. Id. (quoting Univ. Nursing Assocs., PLLC v. Phillips, 842 So.2d 1270, 1278 (¶ 28) (Miss.2003). “[Wjaiver of arbitration is not a favored finding, and there is a presumption against it.” Miss. Credit Ctr., Inc. v. Horton, 926 So.2d 167, 179 (¶ 39) (Miss.2006) (quoting Russell v. Performance Toyota, Inc., 826 So.2d 719, 724 (¶ 16) (Miss.2002)).

¶ 7. Stockwell argues that Draper-ton waived its right to arbitration by filing a complaint for specific performance and invoking litigation, to Stockwell’s detriment. Stockwell further argues that Draperton knew that he was having trouble obtaining financing to purchase the building, but decided to seek specific performance and wait almost three years from the date of the alleged breach to assert its right to arbitrate the matter.

¶ 8. The chancery court found that because Draperton had an arbitration clause in its construction agreement, it had an adequate remedy at law for its damages through arbitration, and specific performance was unnecessary. The agreement expressly provides that “if Purchaser refuses or otherwise fails to complete its purchase, then Seller may immediately seek specific performance[.]” Here, Stockwell failed to complete the purchase of the property pursuant to the agreement with Draperton. Stockwell claims that he suffered detriment due to the extensive discovery required from the litigation seeking specific performance. However, even though seeking specific performance may be considered inconsistent with the right to arbitration, Draperton reserved the right in the construction contract to take such measure.

¶ 9. It would be inequitable for us to find that Draperton has waived its right to arbitrate when the exception that allowed it to seek specific performance was clearly in the contract that Stockwell signed. Draperton is only trying to recover what it is owed. Stockwell agreed to the clear and unambiguous terms of the contract and cannot now argue that Draperton has taken this action to prejudice him. Therefore, we find that Draperton has not waived its right to arbitrate.

II. Judicial Estoppel

¶ 10. In Stockwell’s answer and counterclaim to Draperton’s complaint seeking specific performance, one of Stockwell’s affirmative defenses stated that specific performance should be denied because Draperton had an adequate remedy pursuant to the arbitration clause in the agreement. Stockwell now argues that Draper-ton has lost its right to arbitrate as a result of participating in litigation inconsistent with the right to arbitrate.

¶ 11. “The doctrine of judicial estoppel should be applied to prevent a party from achieving [an] unfair advantage by taking inconsistent positions in litigation.” Copiah Cnty. v. Oliver, 51 So.3d 205, 207 (¶ 9) (Miss.2011). Judicial estop-pel must also apply in the court in which a “self-serving contradiction occurred and in which the defense is first asserted.” Kirk v. Pope, 973 So.2d 981, 991 (¶31) (Miss.2007) (quoting In re Dewberry, 266 B.R. 916, 920 (Bankr.S.D.Ga.2001)). “Judicial estoppel precludes a party from asserting a position, benefitting from that position, and then, when it becomes more convenient or profitable, retreating from that position later in the litigation.” In re Estate of Richardson, 903 So.2d 51, 56 (¶ 17) (Miss.2005) (quoting Dockins v. Allred, 849 So.2d 151, 155 (¶ 8) (Miss.2003)).

¶ 12. Stockwell is clearly trying to obtain an unfair advantage by now arguing that Draperton has lost its right to arbitration. In his answer and counterclaim, one of Stockwell’s affirmative defenses advocated arbitration over specific performance. He benefited from that position when the chancery court agreed with him and found that specific performance was not an appropriate remedy for this case. Stockwell’s current position that Draperton cannot assert its right to arbitrate is clearly a self-serving and convenient contradiction of his previous position. Accordingly, we find that Stockwell is judicially estopped from arguing that Draperton has waived its right to arbitrate.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY GRANTING THE MOTION TO COMPEL ARBITRATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: LEE, C.J.,

text:
    Godfrey JOSEPH a/k/a Godfrey West Joseph, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CA-00344-COA.
    Court of Appeals of Mississippi.
    April 23, 2013.
    Michael R. Bonner, Travis T. Vance Jr., attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.

      Before LEE, C.J., CARLTON and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On May 17, 2012, in the Claiborne County Circuit Court, Godfrey Joseph was tried for possession of a firearm by a felon. After the State rested, Joseph entered a guilty plea. The State recommended Joseph be sentenced to five years in the custody of the Mississippi Department of Corrections, with only one year and a day to serve followed by post-release supervision. The trial court agreed with that recommendation and sentenced Joseph to serve one year and one day, with the remainder of the five-year sentence to be served on post-release supervision. The trial court also ordered Joseph to remain out of Claiborne County during his post-release supervision.

¶ 2. Joseph filed a motion to reconsider the banishment portion of the sentence, which the trial court dismissed for lack of jurisdiction. This appeal followed.

STANDARD OF REVIEW

¶ 3. “Jurisdictional matters are a question of law[;] thus the standard of review is de novo.” Payne v. State, 966 So.2d 1266, 1269 (¶7) (Miss.Ct.App.2007).

DISCUSSION

¶ 4. Joseph asserts that the trial court erred when it did not sentence him in accordance with the plea agreement, particularly that the trial court erred by banishing Joseph from Claiborne County during his post-release supervision.

¶ 5. Because Joseph pleaded guilty, a direct appeal is not available to him. Under Mississippi Code Annotated section 99-35-101 (Supp.2012):

Any person convicted of an offense in a circuit court may appeal to the Supreme Court. However, where the defendant enters a plea of guilty and is sentenced, then no appeal from the circuit court to the Supreme Court shall be allowed.

This was not always the case. Prior to the 2008 amendment of section 99-35-101, “a defendant who entered a guilty plea and was sentenced could challenge the validity of his sentence on direct appeal.” Fair v. State, 102 So.3d 1165, 1170 (¶ 16) (Miss.Ct.App.2012). The newly amended statute now “prohibits any direct appeal upon entry of a guilty plea.” Id. Instead of a direct appeal, a defendant must file a petition for post-conviction relief in accordance with Mississippi Code Annotated section 99-39-5 (Supp.2012). Joseph did not file a petition for post-conviction relief. Rather, he filed a direct appeal from the dismissal of his motion for the trial court to reconsider the banishment portion of his sentence. “Pursuant to [Mississippi Code Annotated] section 99-35-101, we are without jurisdiction to hear this appeal; thus, we may not touch upon the merits of ... [Joseph’s] claim[ ] asserted herein.” Small v. State, 81 So.3d 1179, 1181 (¶8) (Miss.Ct.App.2011).

¶ 6. We dismiss Joseph’s appeal without prejudice. If he so chooses, he may raise this claim in a properly filed petition for post-conviction relief. Id. at (¶ 9).

¶ 7. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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