author: PAINTER, Judge.

text:
    SUCCESSION OF Marilyn Vaughn Smith PHILLIPS.
    No. CW13-251.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 21, 2013.

      Kenneth Michael Wright, Lake Charles, LA, for Defendant-Relator, Briant L. Smith.
    Maurice Tynes, Lake Charles, LA, for Plaintiff-Respondent, Julie Clark.
    Court composed of JIMMIE C. PETERS, BILLIE HOWARD EZELL, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

|, Relator, Briant L. Smith, seeks supervisory writs from the ruling of the trial court ordering him to give certain real property to Julie Clark, administratrix of the Succession of Marilyn Vaughn Smith Phillips. For the following reasons, we reverse the ruling of the trial court.

FACTS AND PROCEDURAL HISTORY

Marilyn Vaughn Smith Phillips died on February 4, 1999. She was survived by her two children, Relator and Arn Smith who died on August 14, 2005. Relator filed a Petition for Appointment as Administrator Forthwith on December 12, 2011. Attached as an exhibit was an affidavit dated May 14, 2000, from Arn Smith verifying that he relinquished any claim to the succession property located at 1317 East Ford Street in Lake Charles, LA, as well as his death certificate showing his date of death as August 14, 2005. On December 20, 2011, the trial court signed an order appointing relator as administrator. Relator filed a Petition for Possession on January 13, 2012, and on January 24, 2012, the trial court signed a judgment of possession putting Relator into possession of the succession property.

On May 1, 2012, Julie Clark filed a Petition to Re-Open Succession, and for Appointment of a Succession Representative, and Other Relief. The trial court issued a judgment reopening the succession and appointing Clark as the adminis-tratrix. On February 13, 2013, a hearing was held on a rule to show cause why Respondent should not deliver the Ford Street house to Clark. The trial court subsequently issued a ruling ordering Smith to deliver physical possession of the Ford Street house to Clark. That ruling was reduced to a written judgment which was signed on March 14, 2013. On February 14, 2013, Respondent filed a Notice of Intent to Apply for Supervisory Writs and Request for Stay. The trial court stayed the effect of its ruling pending action by this court and gave Respondent 12until March 14, 2013 to file his writ application. The application was timely filed with this court.

DISCUSSION

Respondent asserts that to return the property to the succession, the new succession representative would need to petition the court for nullity of the previously issued judgment of possession, and that proper procedure for annulment has not been followed. He also notes that the petition to reopen was not based on the omission of property.

In Clark’s petition to reopen the succession and to be appointed administratrix, she asserted the following grounds:

1. Olmsted Shipyard, Inc. filed a Request for Notice of Appointment of Succession Representative on July 2, 2012, under docket number 49738-G; the deputy clerk signed a certificate on December 12, 2011, indicating that no notice had been filed; therefore, the relator’s appointment as administrator was based on a false certificate.
2. The instrument allegedly signed by Smith, releasing his interest in the property, was not in sufficient form and was notarized by a person whose commission had not been issued.
3. Smith was a co-heir at the time of Phillips’ death.
4. The affidavit of death and heirship and oath of administrator filed on December 12, 2011, were sworn to on January 8, 2008, by the relator’s wife, a person whose notary commission was not in effect on that date.
5. A proposed judgment of possession was filed on December 12, 2011, and signed by Judge Savoie on December 20, 2011, who wrote “denied” with the notation that an administrator was appointed.
6. A petition for possession was filed on January 13, 2012, purportedly signed by the relator; the signature was unlike the relator’s other signatures and looked similar to that of the relator’s wife.
7.A sworn descriptive list of properties comprising Phillips’ estate was sworn to before the relator’s wife, and the affiant’s signature appeared to be in the same hand as the relator’s wife; the list included only the house and no other belongings.
| a8. The affidavit verifying the petition for possession was sworn to before the relator’s wife, and both signatures appear to be in the same hand; the affidavit is false, and therefore, insufficient. 9. The judgment of possession is null and void, based on illegal, fraudulent, and insufficient documents.

This appears to be a collateral attack on the judgment of possession. “A collateral attack is defined as an attempt to impeach the decree in a proceeding not instituted for the express purpose of annulling it.” Corcoran v. Gauthier, 97-516, p. 6 (La.App. 4 Cir. 1/7/98), 705 So.2d 1233, 1236, writ denied, 98-342 (La.3/27/98), 716 So.2d 888 (citation omitted). “The only judgments which may be collaterally attacked are those which are absolutely null because of a vice of form as provided in LSA-C.C.P. art. 2002.” Succession of Schulz, 622 So.2d 693, 696 (La.App. 4 Cir. 5/27/93). Louisiana Code of Civil Procedure Article 2002 provides that:

A. A final judgment shall be annulled if it is rendered:
(1) Against an incompetent person not represented as required by law.
(2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken.
(3) By a court which does not have jurisdiction over the subject matter of the suit.
B. Except as otherwise provided in Article 2003, an action to annul a judgment on the grounds listed in this Article may be brought at any time.

Clark does not assert any of these grounds for annulment; rather she asserts that the judgment of possession was rendered as a result of fraud or ill practices.

A final judgment obtained by fraud or ill practices is not an absolute nullity; the nullity must be properly decreed within the time prescribed. Knight [v. Sears, Roebuck & Co.], 566 So.2d [135] at 137 [ (La.App. 1 Cir.1990) ]; see LSA-C.C.P. art. 2004(B). No specific provision was made in Article 2004 regarding the manner of asserting the grounds of nullity. This was thought unnecessary in view of the established jurisprudence to the effect that such grounds must be asserted in a direct action and cannot be raised collaterally. LSA-C.C.P. art. 2004, Official Revision Comments-1960, comment |4(d); see Knight, 566 So.2d at 137, citing Nethken [v. Nethken], 307 So.2d [563] at 565 [(La.1995)], and Pontchartrain Park Homes, Inc. v. Sewerage and Water Bd. of New Orleans, 246 La. 893, 168 So.2d 595, 597 (1964). Thus, the party praying for the nullity of a relatively null judgment must bring his action by means of a petition, and the adverse party must be cited to appear, as in ordinary suits. Knight, 566 So.2d at 137; see LSA-C.C.P. art. 1201; Ledford v. Pipes, 507 So.2d 9, 11 n. 1 (La.App. 2nd Cir.1987). A direct action can be brought by filing a separate proceeding or by the filing of a pleading in the same proceeding as that in which the offending judgment was rendered. Roach [v. Pearl], 673 So.2d [691] at 694 [ (La.App. 1 Cir.1996) ]; Knight, 566 So.2d at 137. The limitation envisioned by comment (d) to LSA-C.C.P. art. 2004 prohibits the issue from being raised by way of an affirmative defense, such as in the answer or by exception. Clearly, any of those methods would be a collateral attack, that is, an attempt to impeach the decree in a proceeding not instituted for the express purpose of annulling the judgment. Knight, 566 So.2d at 137; see Roach, 673 So.2d at 693-94; Succession of Schulz, 622 So.2d 693, 696 n. 3 (La.App. 4th Cir.1993), writ denied, 93-2605 (La.1/13/94), 631 So.2d 1161. The reason for this rule is that a relative nullity involves a factual issue which must be proven by evidence placed in the record. Ledford, 507 So.2d at 11.

Smith v. LeBlanc, 06-41, pp. 6-7 (La.App. 1 Cir. 8/15/07), 966 So.2d 66, 71-72. See also Regions Bank v. Cabinet Works, L.L.C., 11-748 (La.App. 5 Cir. 4/10/12), 92 So.3d 945; American Thrift & Finance Plan Inc. v. Richardson, 07-640 (La.App. 5 Cir. 1/22/08), 977 So.2d 105; Mooring Financial Corp. 401(K) Profit Sharing Plan v. Mitchell, 08-1250 (La.App. 4 Cir. 6/10/09), 15 So.3d 311. The trial court suggested in its oral statements at the hearing that it was vacating the prior judgment of possession.

Since no direct action to annul the succession has been filed, the judgment of the trial court ordering Smith to deliver physical possession of the Ford Street house to Clark was improper and is reversed.

CONCLUSION

The judgment of the trial court ordering the delivery of the Ford Street property is reversed. Costs of this application are assessed to the Respondent, Julie Clark.

REVERSED.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge. SAUNDERS, J.,

license: Public Domain

text:
    Shane REAUX v. Mr. and Mrs. Casey Joseph MORESI.
    No. 13-510.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 28, 2013.
    J. Christian Lewis, Glenn J. Armentor, The Glen Armentor Law Corporation, Lafayette, LA, for Plaintiff/Respondent— Shane Reaux.
    Dennis R. Stevens, Gibbens and Stevens, Iberia, LA, for Defendants/Respondents — Mr. and Mrs. Casey Joseph More-si.
    Matthew D. Monson, Donald J. Latuso, Jr., Laura H. Abel, The Monson Law Firm, LLC, Mandeville, LA, for Defendant/Relator — Southern Fidelity Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   THIBODEAUX, Chief Judge.

11 Plaintiff, Shane Reaux, filed this suit against Mr. and Mrs. Casey Moresi (“Mor-esis”), for an automobile accident that occurred when Reaux swerved his car to avoid hitting the Moresis’ dog in front of their house. Reaux added Defendant, Southern Fidelity Insurance Co. (“Southern Fidelity”), as the Moresis’ homeowners insurance provider. Southern Fidelity filed a Motion for Summary Judgment asking to be dismissed from the case because the insurance policy it has with the Moresis contains an Animal Liability Exclusion, which it contended excluded this accident from coverage. The Moresis claim that the Exclusion is not valid because it is not signed.

The trial court denied the motion and Southern Fidelity filed an application for a supervisory writ with this court. We disagree with the trial court and reverse its decision. We find there is no case law or statute requiring the Animal Liability Exclusion be signed to be valid. The Exclusion, therefore, was attached to the More-sis’ policy, and clearly and unambiguously excludes Reaux’s claims from coverage.

I.

ISSUE

We will decide whether the trial court erred in denying summary judgment to Southern Fidelity by concluding that the Animal Liability Exclusion was not a part of the policy.

_b.II.

FACTS AND PROCEDURAL HISTORY

Plaintiff alleges that he sustained several injuries following a car accident in which he swerved to avoid hitting the Moresis’ unrestrained dog in the road. He filed suit against the Moresis and then joined Southern Fidelity as their insurer. The homeowner’s insurance policy between the Moresis and Southern Fidelity contains an Animal Liability Exclusion, excluding all coverage relating to damages caused by an animal. Reaux and the Moresis contend that the exclusion is not valid because the signature line on the policy lacks a signature. Southern Fidelity filed a Motion for Summary Judgment in the trial court, arguing that the lack of a signature does not nullify the exclusion. The trial court denied the motion, and agreed with the Mor-esis and Reaux that the absence of a signature invalidated the exclusion.

III.

LAW AND DISCUSSION

Standard of Review

We review a grant of summary judgment de novo “using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Supreme Servs. and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638. Once the mover has made a prima facie case that the motion should be granted, the non-mover must then present evidence sufficient to show a genuine issue of material fact. La.Civ.Code art. 966(C)(2); Simien v. Med. Protective Co., 08-1185 (La.App. 3 Cir. 6/3/09), 11 So.3d 1206, writ denied, 09-1488 (La.10/2/09), 18 So.3d 117. If the non-mover fails-to present some evidence that he might be able to meet his burden of proof at trial, the motion should be granted. Id. Moreover, the interpretation of a contract is a question of law which is reviewed de novo. Gutierrez v. Baldridge, 12-138 (La.App. 3 Cir. 10/3/12), 105 So.3d 156.

Discussion

Animal Liability Exclusion

Defendant argues that the trial court erred by not granting summary judgment in its favor because the Animal Liability Exclusion contained in the insurance policy was part of the policy, and is applicable here. We agree. The exclusion states:

Your policy is changed to read under COVERAGE L — PERSONAL LIABILITY we will NOT cover any bodily injury or damages caused by any animal owned or kept by any insured, including the failure to restrain or enclose the animal, located at the insured location. This exclusion applies whether or not bodily injury or damage occurs on your premises or any other location. All other provisions and exclusions apply.
Under COVERAGE M — MEDICAL PAYMENTS TO OTHERS we will NOT cover bodily injury or medical expenses caused by any animal owned or kept by any insured, including the failure to restrain or enclose the animal, located at the insured location. This exclusion applies whether or not the injury occurs on your premises or any other location. All other provisions and exclusions apply.
Under DAMAGE TO PROPERTY OF OTHERS SECTION we will NOT cover property damage caused by any animal owned or kept by any insured, including the failure to restrain or enclose the animal, located at the insured location. This exclusion applies, whether or not the damage occurs on your premises or any other location. All other provisions and exclusions apply.

[4An insurance policy is “a contract between the parties and should be construed by using the general rules of interpretation of contracts.” Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-911 (La.1/14/94), 630 So.2d 759, 763. Louisiana Civil Code Article 2046 governs contract interpretation and states that when “the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” In this case, the exclusion is clear, unambiguous, and applicable to these circumstances. Reaux was personally injured when he swerved his car to avoid hitting the More-sis’ dog. He is seeking damages for medical payments, personal injury, and property damage as a result of the accident. The exclusion clearly applies.

The only real issue is whether the exclusion was made part of the policy. The Moresis claim that although they were in possession of the exclusion, it was not part of the policy because there is a signature line, but no signature. The trial court agreed with this, and treated the exclusion in the same way it would treat an Uninsured Motorist (UM) clause in an auto insurance policy, which must be signed to be valid. Louisiana, however, has a statute that specifically applies to UM clauses, La.R.S. 22:1295, and requires them to be signed by the insured. There is no such statute applicable to animal liability exclusions.

We can find no law specifying that this exclusion must be signed to be valid. In fact, we find the opposite to be true. Under the “Entire Contract Doctrine,” La. R.S. 22:867, an agreement modifying the coverage of an insurance contract is only valid if “it is in writing and physically made a part of the policy.” Any exclusion “shall be deemed to be physically made a part of a policy ... within the meaning of [the] Section, whenever such written agreement makes reference to ] Ssuch policy ... and is sent to the holder of such policy.” La.R.S. 22:867(C). According to the statute, therefore, as long as the exclusion makes reference to the policy, is in ■writing, and in the possession of the insured, it is physically made a part of the policy. In this case, the exclusion was written, makes reference to the Moresis’ policy, and was physically attached to the policy.

In Piligra v. America’s Best Value Inn, 10-254 (La.App. 3 Cir. 10/6/10), 49 So.3d 479, this court considered the validity of policy exclusions and endorsements that contained a signature line, but were not signed. In that case, we held that the endorsements and exclusions at issue were enforceable even though they were not signed because they were included on the declarations page of the policy and were physically attached to the policy. Id. Other courts in this state have interpreted La.R.S. 22:867 similarly and have likewise held that exclusions can be made part of the policy even if not signed. See, e.g. Boudreaux v. Siarc, Inc., 97-1067 (La.App. 5 Cir. 4/15/98), 714 So.2d 49, writ denied, 98-1556 (La.9/18/98). In this case, the Animal Liability Exclusion was attached to the policy and listed under “Forms and Endorsements” on the Declarations Page of the Southern Fidelity policy. The exclusion, therefore, is made part of the policy.

The Moresis’ are unclear in their brief as to whether they are asserting only that the exclusion is invalid, or, alternatively, that they were unaware of the exclusion because it was not signed. Neither argument is persuasive. The exclusion is valid even if it lacks a signature, as expressed above. Further, the Moresis cannot claim ignorance of the exclusion, since “[a]n insured is responsible for reading its policy and is presumed to know its contents.” Piligra, 49 So.3d at 487. We assume, therefore, that the Moresis read and understood their policy before accepting it. We find that Southern Fidelity has satisfied its burden of proof | fiand there is no genuine issue of material fact. Southern Fidelity is entitled to judgment as a matter of law.

Duty to Defend

Southern Fidelity also argues that they have no duty to defend the Mor-esis against Reaux’s claims because the Moresis are not entitled to coverage. We agree. An insurer has a duty to defend suits brought against its insured, unless the policy unambiguously excludes coverage. Ducote v. Cliffs Drilling Co., 624 So.2d 960 (La.App. 3 Cir.1993). As explained above, we find that the policy clearly and unambiguously excludes Reaux’s claims from coverage under the Animal Liability Exclusion. Southern Fidelity has no duty to defend the Moresis against this claim.

IV.

CONCLUSION

For the reasons above, we reverse the judgment of the trial court and grant summary judgment to Southern Fidelity Insurance Co.

WRIT GRANTED AND MADE PEREMPTORY.

SAUNDERS, J.,

concurs with additional written reasons.

It is axiomatic that “[a]n insured is responsible for reading its policy and is presumed to know its contents.” Piligra, 49 So.3d at 487. In my view, the presence of an unsigned signature line in an attachment raises some ambiguity. Theoretically, the unsigned signature line could be interpreted as the insured tacitly rejecting the attachment. Under such circumstances, summary judgment seems to be inappropriate.

However, in the present ease, the exclusion was not only attached to the policy, but was in fact listed under forms and endorsements on the declarations page when the insured entered into the policy of insurance. This negates the possibility of the insured’s tacit rejection of the attachment by not signing it and makes summary judgment, under these particular circumstances, appropriate. Accordingly, I respectfully concur.


author: LAMAR, Justice, PIERCE, Justice,

text:
    Melvin GRAYER v. STATE of Mississippi.
    No. 2012-KA-00321-SCT.
    Supreme Court of Mississippi.
    July 18, 2013.

      Office of the State Public Defender by Mollie M. McMillin, George T. Holmes, attorneys for appellant.

      Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before DICKINSON, P.J., LAMAR and CHANDLER, JJ.
   LAMAR, Justice,

for the Court:

¶ 1. On the Court’s own motion, the pri- or opinions in this case are withdrawn and these opinions are substituted therefor.

¶ 2. Melvin Grayer was convicted of burglary and sentenced as a habitual offender to seven years without the possibility of parole or probation. Grayer appeals, claiming that he received ineffective assistance of counsel because his trial counsel failed to request a circumstantial-evidence jury instruction and that he was sentenced as a habitual offender without competent evidence of his prior felony convictions. We affirm Grayer’s conviction but vacate his habitual-offender sentence enhancement, because the State failed to prove Grayer was a habitual offender by competent evidence. We remand this case to the Circuit Court of Harrison County, First Judicial District, for resentencing.

FACTS AND PROCEDURAL HISTORY

¶ 3. Just after midnight on January 29, 2011, Gulfport Police Officer Jason Payne responded to a burglary call at a business located on Old Highway 49. Payne described the business as two buildings separated by a walkway, with a fence enclosing both buildings. The walkway also had a wrought-iron gate at each end. Payne approached the building and noted that the windows and doors appeared secure. As he continued inspecting the perimeter, Payne heard a “clicking noise.” When he turned to investigate the noise, Payne saw a male standing in the walkway between the buildings, inside the fence and on the other side of the gate from Payne. Although Payne ordered the man to get on the ground, the man turned and began walking away. The man then began to run, jumped over a gate to exit the business, and ran into the nearby woods. Payne maintained visual contact with the man until he ran into the woods but stopped his pursuit after the man entered the woods, because other officers were en route to the scene with a K9 officer, who would be able to track the suspect.

¶ 4. Backup arrived shortly after Payne saw the man run into the woods. A Gulf-port Police K9 officer and his service dog eventually found Melvin Grayer in the woods, attempting to conceal himself. Grayer was arrested and taken into custody.

¶ 5. After Grayer was taken into custody, Payne returned to the scene to meet the business owner and investigate the business building. During the investigation, Payne observed an area of sheet metal that had been pulled back to make a point of entry to the building and some speakers on the ground in the breezeway where he had made initial contact with the suspect. The business owner testified that the speakers were not normally kept outside in the breezeway, but were generally stored inside in the shipping and receiving area of the main warehouse.

¶ 6. Grayer was indicted for burglary under Mississippi Code Section 97-17-33 and as a habitual offender under Mississippi Code Section 99-19-81. The indictment clearly sets forth that Grayer is a habitual offender and lists his seven previous felony convictions (arising out of five separate incidents at five different times), including the offenses, dates convicted, and cause numbers.

¶ 7. After a trial, a jury convicted Grayer of burglary. Immediately after the guilty verdict was returned, the trial judge asked the State for its position on sentencing. The State responded that Grayer had been indicted as a habitual offender under Mississippi Code Section 99-19-81 and requested that he receive the maximum sentence. The State offered to recite the nature of the previous convictions, and the State’s counsel also advised the trial court that he had copies of the certified sentencing orders available for the court’s inspection. The court instructed the State to recite Grayer’s previous convictions, which the State’s counsel did.

¶ 8. The trial judge then asked if the certified sentencing orders reflecting Grayer’s previous convictions had been provided to defense counsel, and the State advised that they had. The trial judge then stated, “I see what you have contained in your hands in the indictment. So there’s no need for you to present them to the court at this time.” The trial judge then immediately found Grayer to be a habitual offender and sentenced him to seven years in the custody of the Mississippi Department of Corrections, the maximum term for burglary of a building, without the possibility of parole or probation. Other than the indictment and the State’s recitation of Grayer’s previous convictions, the record does not contain any evidence to support Grayer’s status as a habitual offender.

DISCUSSION

I. Grayer’s claim of ineffective assistance of counsel is without merit.

A. Standard of Review

¶ 9. “In order to prevail on a claim of ineffective assistance of counsel, a defendant must prove (1) that his attorney’s overall performance was deficient and (2) that the deficient performance, if any, was so substantial as to prejudice the defendant and deprive him of a fair trial.” “Furthermore, there is a ‘strong but rebut-table presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ ” “To overcome this presumption, ‘[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.’ ”

B. Analysis

¶ 10. Grayer argues that his trial counsel should have requested a circumstantial-evidence jury instruction because there was no direct evidence of his guilt in this case, further claiming that the State presented direct evidence only that he was outside the business building. The State argues that Officer Payne provided direct evidence of Grayer’s guilt by offering eyewitness testimony that placed Grayer inside the business’s perimeter and placed speakers outside the building where Grayer had been standing; therefore, the State argues a circumstantial-evidence jury instruction would not have been proper.

¶ 11. We agree that the evidence in this case did not support a circumstantial-evidence instruction. A defendant is entitled to a circumstantial-evidence instruction; ie., an instruction that every reasonable hypothesis other than guilt must be excluded to convict, only when the case against him is based entirely on circumstantial evidence, as opposed to direct evidence. Direct evidence includes an eyewitness to the “gravamen of the offense charged.” Additionally, “[a] circumstantial evidence instruction is required ‘only when the prosecution can produce neither an eyewitness nor a confession/statement by the defendant.’ ”

¶ 12. In this case, Grayer was convicted of burglary under Mississippi Code Section 97-17-33. To obtain a conviction, the State was required to prove that Grayer (1) had unlawfully broken into the business, (2) with the intent to steal or commit a felony after he entered. The State produced an eyewitness, Payne, who testified that he saw Grayer inside the perimeter of the business and that he saw speakers on the ground outside the business building, at the spot where he first made contact with Grayer. The State also produced the business owner, who testified that the speakers were always kept inside the building in the shipping and receiving area.

¶ 13. The State produced direct evidence to the gravamen of the offense charged in the form of eyewitness testimony. Therefore, we find that Grayer was not entitled to a circumstantial-evidence instruction and that his attorney’s performance was not deficient for failing to request one. This assignment of error is without merit.

II. The State failed to prove Grayer’s habitual-offender status with competent evidence.

A. Procedural Bar and Standard of Review

¶ 14. Grayer did not object to being sentenced as a habitual offender at trial. “When an accused fails to object to the habitual offender issue during the sentencing phase, he is procedural!y barred to do so for the first time on appeal.” Recognizing that his argument is proee-durally barred, Grayer contends that he has a fundamental right to be free of an illegal sentence and urges this Court to review his sentence for plain error.

¶ 15. “This Court employs the plain-error rule only ‘when a defendant’s substantive or fundamental rights are affected.’ ” “To determine if plain error has occurred, this Court must determine ‘if the trial court has deviated from a legal rule, whether that error is plain, clear[,] or obvious, and whether that error has prejudiced the outcome of the trial.’ ”

B. Analysis

¶ 16. Grayer argues that his sentence is illegal because the State failed to prove his habitual-offender status with competent evidence. An accused has a fundamental right to be free of an illegal sentence. We have explained that an illegal sentence is one that “does not ‘conform to the applicable penalty statute.’ ” In other words, a sentence is not illegal unless it exceeds the maximum statutory penalty for the crime.

¶ 17. Grayer was found guilty of burglary, which provides that any person found guilty shall be imprisoned for “not more than seven (7) years.” The circuit court found that Grayer was a habitual offender and sentenced him to seven years without the possibility of parole or probation, as mandated by the habitual-offender statute.

¶ 18. To sentence a defendant as a habitual offender, “[a]ll that is required is that the accused be properly indicted as an habitual offender, that the prosecution prove the prior offenses by competent evidence, and that the defendant be given a reasonable opportunity to challenge the prosecutor’s proof.” Grayer argues only that the prosecution failed to prove his prior offenses by competent evidence.

¶ 19. The “best evidence of a conviction is the judgment of conviction.” In this case, although the State informed the circuit court that it had certified copies of Grayer’s prior convictions and had provided copies to Grayer and his counsel, it failed to place the certified copies into the record or to offer any evidence to support Grayer’s habitual-offender status, other than a recitation of his prior felony convictions. Simply put, the State failed to prove Grayer’s prior convictions by competent evidence. Therefore, we find that the circuit court committed error, rising to the level of plain error, by sentencing Grayer as a habitual offender without evidence of his prior convictions.

¶ 20. Furthermore, the State is not entitled to a second chance to prove a defendant’s habitual-offender status on remand, because that would violate the prohibition against double jeopardy under the Mississippi Constitution. We have explained:

[ A]n habitual offender’s sentencing hearing, as a trial on the sentence, constitutes jeopardy; therefore, when a defendant’s conviction has been overturned due to a failure of proof at trial, ... the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble.

¶ 21. We find that the circuit court committed plain error in this case by sentencing Grayer as a habitual offender without proof of Grayer’s prior convictions, and we find that the error prejudiced the outcome of Grayer’s trial.

CONCLUSION

¶22. We find that Grayer’s claim of ineffective assistance of counsel is without merit. We further find that the circuit court erred in sentencing Grayer as a habitual offender because the State failed to prove his prior offenses by competent evidence. Therefore, we affirm Grayer’s conviction, vacate his seven-year sentence and habitual-offender enhancement, and remand this case to the circuit court for resentencing of Grayer as a nonhabitual offender.

¶ 28. CONVICTION OF BURGLARY OF A BUSINESS, AFFIRMED. HABITUAL-OFFENDER ENHANCEMENT VACATED, AND THE CASE IS REMANDED FOR RESENTENCING.

WALLER, C.J., DICKINSON, P.J., KITCHENS, CHANDLER AND KING, JJ., CONCUR. PIERCE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., AND COLEMAN, J.

PIERCE, Justice,

concurring in part and dissenting in part:

1124. I respectfully dissent on Issue two, in which the Majority holds that the State failed to prove Grayer’s habitual-offender status with competent evidence. I would find that the trial court did not commit plain error. It is clear from the record that the trial court and the parties were furnished all evidence of habitual-offender status and reviewed it and referenced it. While such evidence was not entered into the record, the judge acknowledged its existence and considered what the evidence contained, and he stated that he did not need to see the evidence introduced. Further, Grayer’s counsel did not object to the evidence not being entered into the record. While there may have been a procedural error with regard to the habitual-offender evidence not being marked as an exhibit, this was not an error of substance. And when an accused fails to object to the habitual-offender issue during the sentencing phase, he or she is procedurally barred from raising the issue for the first time on appeal. Cummings v. State, 465 So.2d 993, 995 (Miss.1985). Because Grayer’s counsel did not object, he cannot object to this on appeal unless a “substantive or fundamental right [was] affected.” Parker v. State, 30 So.3d 1222, 1227 (Miss.2010). This Court has further held that in order to determine if plain error has occurred, this Court must determine “if the trial court has deviated from a legal rule, whether that error is plain, clear[,] or obvious, and whether the error has prejudiced the outcome of the trial.” Cox v. State, 793 So.2d 591, 597 (Miss.2001). Here, Grayer was not prejudiced, because the trial court already knew of the evidence of habitual-offender status; the decision not to enter such evidence into the record was not prejudicial to Grayer. Thus, failure to mark the evidence as an exhibit, when the judge already had considered the evidence for sentencing, was not a deviation from any legal rule, absent objection. Therefore, I respectfully dissent.

RANDOLPH, P.J., AND COLEMAN, J., JOIN THIS OPINION.

      . Mississippi Code Section § 97-17-33 reads in relevant part:
      Every person who shall be convicted of breaking and entering, in the day or night, any shop, store, ... in which any goods, merchandise, equipment, or valuable thing shall be kept for use, sale ... with intent to steal therein or commit any felony ... shall be found guilty of burglary and imprisoned in the penitentiary not more than seven (7) years.
      Miss.Code Ann. § 97-17-33 (Rev.2006).

      .Miss.Code Section § 99-19-81 reads as follows:
      Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.
      Miss.Code Ann. § 99-19-81 (Rev.2007).

      . We note that claims of ineffective assistance of counsel, although normally reviewed in post-conviction-relief proceedings, may be reviewed on direct appeal in situations where the alleged error is “based on facts fully apparent from the record.” Mitchell v. State, 90 So.3d 584, 596 (Miss.2012). Because Grayer’s claim is based on facts fully apparent from the record, we may consider Grayer’s claim of ineffective assistance of counsel on direct appeal.

      . Smiley v. State, 815 So.2d 1140, 1146 (Miss.2002) (citations omitted).

      . Id. (quoting Walters v. State, 720 So.2d 856, 868 (Miss.1998)).

      . Smiley, 815 So.2d at 1146 (quoting Schmitt v. State, 560 So.2d 148, 154 (Miss.1990)).

      . States v. State, 88 So.3d 749, 756 (Miss.2012) (citations omitted).

        .Id. (citations omitted).

      . Hughes v. State, 983 So.2d 270, 278 (Miss.2008) (quoting Rubenstein v. State, 941 So.2d 735, 785 (Miss.2006)).

      . Miss.Code Ann. § 97-17-33 (Rev.2006).

      . Cummings v. State, 465 So.2d 993, 995 (Miss.1985).

      . Lafayette v. State, 90 So.3d 1215, 1220 (Miss.2012) (Carlson, P.J., specially concurring) (quoting Flora v. State, 925 So.2d 797, 811 (Miss.2006)).

      . Lafayette, 90 So.3d at 1220 (quoting McGee v. State, 953 So.2d 211, 215 (Miss.2007)).

      . Kennedy v. State, 732 So.2d 184, 186 (Miss.1999) (citation omitted).

      . Foreman v. State, 51 So.3d 957, 962 n. 22 (Miss.2011) (quoting Llerena v. U.S., 508 F.2d 78, 80 (5th Cir.1975)).

      . House v. State, 754 So.2d 1147, 1150 (Miss.1999); Brown v. State, 923 So.2d 258, 260 (Miss.Ct.App.2006).

      . Miss.Code Ann. § 97-17-33 (Rev.2006).

      . Id. See also Miss.Code Ann. § 99-19-81 (Rev.2007).

      . Keyes v. State, 549 So.2d 949, 951 (Miss.1989) (citations omitted).

      . McIlwain v. State, 700 So.2d 586, 589 (Miss.1997) (citations omitted).

      . Ellis v. State, 520 So.2d 495, 496 (Miss.1988) (citing Miss. Const. art. 3, § 22 (1890)).

      . Ellis, 520 So.2d at 496 (quoting DeBussi v. State, 453 So.2d 1030 (Miss.1984) (quoting Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978))). See also Young v. State, 507 So.2d 48 (Miss.1987).


author: KITCHENS, Justice,

text:
    Ben U. BOWDEN, Tom Vaughn, Debra Vaughn, Vaughn & Bowden, PA f/k/a Vaughn, Bowden & Wooten, PA, Lowry Development, LLC and Jim Lowry. v. Diane YOUNG, Cherie Brott Blackmore and Paul Blackmore Jim Lowry and Lowry Development, LLC v. Diane Young, Cherie Brott Blackmore and Paul Blackmore.
    Nos. 2011-IA-01763-SCT, 2011-IA-01783-SCT.
    Supreme Court of Mississippi.
    Sept. 5, 2013.

      Joe Sam Owen, Gulfport, Carroll H. Ingram, Joseph Darrell Songy, Hattiesburg, attorneys for appellants.
    Larry Edward Parrish, Louis H. Watson, Jr., Jackson, attorneys for appellees.
    Before DICKINSON, P.J., KITCHENS and CHANDLER, JJ.
   KITCHENS, Justice,

for the Court:

¶ 1. This is an interlocutory appeal from the trial court’s denial of the defendant Vaughn, Bowden, PA’s (V & B) (f/k/a Vaughn, Bowden & Wooten, PA) motion to dismiss for failure to state a claim upon which relief can be granted.

¶ 2. The plaintiffs, Cherie Brott Black-more and Diane Young, sued their former employer, the law firm of V & B, as well as the individual partners, Eric Wooten, Ben Bowden, Tom Vaughn, and office administrator Debra Vaughn, for multiple claims regarding the presence of toxic mold in two of the offices in which the firm had worked. They also argue that they were exposed to sewer gas and a natural gas leak. The plaintiffs also sued Lowry Development, LLC, and its owner, Jim Low-ry (collectively, “Lowry”), as they owned the second building in which both Black-more and Young claim they were injured. V & B argues that all claims against it relate to unintentional torts, and therefore are governed by the Mississippi Workers’ Compensation Act (MWCA), and that the plaintiffs’ sole avenue of relief lies with workers’ compensation. Alternatively, they argue that the claims of battery and intentional infliction of emotional distress were not timely pled within the one-year statute of limitations for intentional torts. The plaintiffs claim that, beyond the intentional torts, the defendants are guilty of conspiracy to withhold the truth about the toxic mold in the building, and, as a result of that conspiracy, the plaintiffs were injured. They also claim that V & B aided and abetted Lowry in maintaining a public and private nuisance. Lowry joins V & B’s arguments that the plaintiffs’ claims are barred by the statute of limitations.

¶ 3. V & B moved to dismiss the plaintiffs’ claims against it under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure, contending that the plaintiffs had failed to present any claims on which relief could be granted. Lowry also filed a Rulel2(b)(6) motion to dismiss. The trial court denied both motions. V & B and Lowry petitioned this Court for interlocutory appeal. This Court granted and consolidated both appeals to address whether the trial court properly had denied each defendant’s motion to dismiss. Several of the claims against V & B are distinct from the claims against Lowry. However, Lowry has not submitted any briefs to this Court, and instead has joined V & B’s arguments to the extent that they apply to Lowry.

¶ 4. With respect to the plaintiffs’ claims against V & B, we find that the plaintiffs have failed to allege any acts on the part of the defendants which rise to the level of intent that would remove their claims from the exclusivity of the MWCA as defined by this court in Franklin Corp. v. Tedford, 18 So.3d 215 (Miss.2009), and Peaster v. David New Drilling Co., 642 So.2d 344 (Miss.1994). Accordingly, we hold that the sole avenue for relief for the plaintiffs’ unintentional tort claims against V & B lies in the MWCA. We therefore reverse the trial court’s decision and dismiss the complaint against V & B for failure to state a claim upon which relief can be granted.

¶ 5. We further find that Lowry’s join-der with V & B’s briefs leaves unaddressed several issues specific to Lowry. Accordingly, we cannot make an informed decision of the merits of Lowry’s interlocutory appeal, and find instead that dismissal of that appeal is appropriate.

FACTS AND PROCEDURAL HISTORY

¶ 6. Cheri Blackmore and Diane Young were legal assistants at V & B. Blackmore worked at V & B from 2006 until December 2009. Young worked at the firm from August 2009 until December 2009. In 2006, Blackmore worked in one of the firm's buildings on 23rd Avenue in Gulf-port (Building A). Blackmore contends that her health deteriorated significantly during her time at that building as a result of exposure to toxic mold there. She alleges that several others at the office experienced similar symptoms, and that one employee was even fired for failing to show up for work on account of poor health. This led Blackmore to fear that any complaints or excessive absences would cost her her job. She alleges that the supervisors at the firm ignored her complaints and told the employees to stop whining.

¶ 7. In February 2009, the firm moved all of its employees to a new building on 25th Avenue in Gulfport (Building B). This building was owned by Lowry and leased to V & B. V & B admit that this building suffered from moisture intrusion. Blackmore claims that, when she moved to Building B, she continued to suffer the same mold-exposure symptoms she had suffered at Building A. The building also had a gas leak which exposed workers to natural-gas fumes. Several raw-sewage backups occurred in the women’s restroom, which flooded into the front of the office. The plaintiffs claim that Lowry Development and V & B were informed repeatedly about the presence of mold in Building B, but did nothing to remediate it. In June 2009, a “Mold Killer Spray” was applied to the surfaces of the office in Building B. The plaintiffs claim this also damaged the health of the Y & B employees. In August 2009, Young began working at Building B. She claims that she immediately began to suffer health problems because of exposure to mold. Throughout the time the plaintiffs claim they were exposed to toxic mold at Building B, the partners who have been named defendants also worked in the same building.

¶ 8. V & B says that it repeatedly requested that Lowry Development fix the problem of moisture intrusion. V & B ultimately decided to move from the building in the fall of 2009, but it took several months for them to find a suitable new location. In October 2009, a federal agency representative from the Occupational Safety and Health Administration (OSHA) met with V & B to discuss the mold issue. The plaintiffs claim that management at V & B lied to the OSHA representative and stated that there was no mold in the office. V & B collected samples to send to a laboratory to determine the extent of the mold problem in the office. The results of the testing were contained in the October Lab Report. According to the plaintiffs, the report revealed “high levels of mold poisonous to susceptible humans.” In December 2009, Blackmore sent a blood sample to a laboratory to be tested for the presence of poisonous mold. The lab report indicated that her blood contained “fine particulates of the type emitted only by mold species poisonous to susceptible humans.”

¶ 9. In December 2009, Blackmore and Young saw the results of the October Lab Report, which indicated that the Environmental Relative Moldiness Index was 21.1. The report stated that “a score of 5 to 20 is high for any indoor environment.” V & B completed its move in January 2010. Neither Blackmore nor Young returned to work after the Christmas holidays of 2009. On December 28, 2009, counsel for Black-more and Young sent a letter to V & B, stating that the plaintiffs were having health problems as a result of mold exposure and that they intended to file a lawsuit against the firm. On March 30, 2010, the Blackmores, represented by different counsel than in the present suit, filed a complaint against Lowry. Young also filed a complaint against Lowry on May 19, 2010. Subsequently, the plaintiffs filed the present suit against V & B and Lowry Development on March 11, 2011, fifteen months after Blackmore and Young stopped working for V & B. Blackmore also filed a petition to controvert -with the Mississippi Workers’ Compensation Commission on February 11, 2010, claiming she was entitled to workers’ compensation benefits due to her exposure to toxic mold.

¶ 10. The plaintiffs brought claims against V & B for battery, intentional infliction of emotional distress, aiding and abetting the maintenance of a public and private nuisance, and conspiracy. They also brought claims against Lowry Development for premises liability, conspiracy, negligent construction, creation and maintenance of a public and private nuisance, and loss of consortium. V & B argued that the plaintiffs did not allege any intentional conduct, and therefore their sole avenue for relief was under the Mississippi Worker’s Compensation Act (MWCA). Miss. Code Ann. § 71-3-9 (Rev.2011). Alternatively, V & B argued that the claims against V & B were for intentional torts, with a statute of limitations of one year. Since the suit was filed more than a year after the injuries allegedly were suffered by the plaintiffs, V & B argue that they were time-barred. V & B moved to dismiss under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure for failure to state a claim for which relief can be granted, arguing that the claims were barred either by the MWCA or by the statute of limitations, and the plaintiffs were not entitled to relief. Lowry moved to dismiss as well, joining V & B’s argument that the one-year statute of limitations for intentional torts barred the plaintiffs from obtaining relief in their claims against Low-ry. The trial court denied the motions, and this Court granted the interlocutory appeals to address whether the trial court erred in denying the motions to dismiss. Lowry never filed a brief but joined V & B’s argument.

STANDARD OF REVIEW

¶ 11. “A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a claim.... Therefore, we review de novo the denial of a motion to dismiss for failure to state a claim.” Children’s Med. Group, P.A. v. Phillips, 940 So.2d 931, 933 (Miss.2006) (citations omitted). A motion to dismiss under the rule should not be granted unless, taking the factual allegations of the complaint as true, “it appears beyond any reasonable doubt that the non movant can prove no set of facts in support of the claim which would entitle them to relief.” Rein v. Benchmark Constr. Co., 865 So.2d 1134, 1142 (Miss.2004).

ANALYSIS

I. The exclusive remedy for the plaintiffs’ claims against V & B lies under the Mississippi Workers’ Compensation Act.

¶ 12. This Court repeatedly has held that, “in order for a willful tort to be outside the exclusivity of the [MWCA], the employee’s action must be done “with an actual intent to injure the employee.’” Griffin v. Futorian Corp., 533 So.2d 461, 464 (Miss.1988) (quoting Dunn, Mississippi Workmen’s Compensation § 22 (3d ed. 1982 & Supp.1984)). “[A] mere willful and malicious act is insufficient to give rise to the intentional tort exception to the exclusive remedy provisions of the [MWCA].... Reckless or grossly negligent conduct is not enough to remove a claim from the exclusivity of the [MWCA].” Blailock v. O’Bannon, 795 So.2d 533, 535 (Miss.2001) (citing Peaster, 642 So.2d at 348-49). As recently as 2009, this Court found that “Mississippi is in concurrence with an overwhelming majority of states in requiring an ‘actual intent to injure’ the employee.” Franklin, 18 So.3d at 221. In sum, for a tort claim against an employer to fall outside the MWCA and survive Rule 12(b)(6) dismissal, a plaintiff must allege that the actions of the employer went beyond negligence, gross negligence, or recklessness. In order to succeed on such a claim, the plaintiff must allege and prove that the employer acted with an actual intent to injure the employee, with full knowledge that the employee would be injured and with the purpose of the action being to cause injury to the employee. An examination and comparison of cases in which the actions of the employer were insufficiently intentional to be excepted from our state’s workers’ compensation system, and those in which the employer’s actions were found to be willful and intentional, and thus outside of the MWCA, is instructive.

¶ 13. In Griffin, 533 So.2d at 463-64, this Court found that a complaint which charged the defendants with “wilfully, consciously and intentionally” ordering an employee to work in conditions that were “substantially certain to cause grievous and horrible injuries” was barred by the exclusivity provision of the MWCA. There, the plaintiff was twice injured by the same piece of machinery in separate incidents, which left him without a right hand or use of his right arm the first time, and without a thumb, index, or middle finger on his left hand the second time. Id. at 462. This Court held that it was not enough to allege that the employer had commited “aggravated negligence or even ... knowingly permitted] hazardous conditions to exist or willfully fail[ed] to furnish a safe place to work or knowingly order[ed] the employee to perform a dangerous job.” Id. at 464. The plaintiffs employer was, at most, grossly negligent. Therefore, the sole avenue of relief was through workers’ compensation.

¶ 14. This Court upheld the lower court’s grant of summary judgment in favor of the defendant in Peaster, 642 So.2d at 344. There, an employee of the defendant was crushed to death by a portable drilling rig which the employer was attempting to move. Id. at 345. The plaintiffs alleged that the defendant had ‘“willfully’ disregarded its duties to [the decedent], ‘intentionally’ failed to repair the brakes on the tractors and trailers, and acted with ‘gross and reckless disregard for the rights and safety of the public in general and particularly of [the] decedent’ and with ‘knowledge of substantial certainty of injury.’ ” Id. at 346. Despite the language alleging “intent,” this Court found that “the overwhelming language and facts point[ed] to negligence, including gross negligence.” Id. The Court found that “Griffin absolutely bars an intentional tort claim even where the probability of gross negligence exists.” Id. at 348. Finding that no evidence established that the defendant actually intended to injure the decedent, and that the defendant was guilty of gross negligence at most, this Court upheld the trial court’s grant of summary judgment in favor of the defendants. Id. The Court also declined to extend the workers’ compensation exception to injuries in which the defendant’s actions were “substantially certain” to result in injury or death. Id. at 349. The fact that the defendant’s conduct was “reckless or grossly negligent” was not enough to remove the case from the coverage of the MWCA. Id. The Court concluded that it consistently had stated its position on the issue, which was to refuse to enlarge the scope of the exemption test promulgated by the Legislature. Id.

¶ 15. Essentially, if the facts alleged or proven point to negligence, gross negligence, or recklessness, despite an allegation of actual intent, this Court will find that workers’ compensation is the sole avenue for relief for the aggrieved party. See Peaster, 642 So.2d at 346.

¶ 16. On the other, hand, this Court has found the plaintiffs allegations sufficient to escape workers’ compensation exclusivity in several cases. In Blailock, 795 So.2d at 533, this Court considered claims of assault, battery, false imprisonment, and intentional infliction of emotional distress brought by an employee after the employee was physically grabbed and pulled by her manager to his office for disciplinary action. Id. at 534. The trial court granted the defendant’s motion to dismiss, holding that the employee’s remedy lay exclusively under the MWCA. Id. In reversing the trial court’s judgment, this Court reiterated that only those actions by an employer which occurred with an “actual intent to injure” were sufficient to bring a civil claim outside the exclusivity the MWCA. Id. The Court found that the dismissal was erroneous because the damages suffered by the employee were “caused by willful and intentional acts, not negligent or grossly negligent acts.” Id. The manager’s act of grabbing the employee was deemed sufficiently willful and intentional to remove the cause of action from the sphere of workers’ compensation.

¶ 17. The standards for the extraction of a civil claim from the powerful grasp of the MWCA most recently were reemphasized by this Court in Franklin, 18 So.3d at 215. There, the defendant employer was a furniture manufacturer. Id. at 222. The plaintiffs included several employees who had worked in the manufacturing plant owned by the defendant, where a pressurized aerosol adhesive had been used to assemble furniture. Id. at 222, 224. Some of the plaintiffs were required to apply the adhesive in small, unventilated wooden booths without respiratory masks or protective equipment. Id. at 224. At one point, two employees were made to clean up a spill of 330 gallons of the toxic adhesive without any protective clothing or respiratory equipment. Id. at 226. The defendants were aware that the adhesive was toxic, that prolonged exposure would cause damage to the central nervous system and respiratory system, and that the manufacturer’s instructions specifically stated that the spray was to be used only with adequate ventilation. Id. at 222. Nevertheless, the defendants repeatedly and consistently ignored entreaties from employees to install adequate ventilation equipment or provide respiratory and protective gear. Id. at 224. Further, after several complaints and a change to the recommended safety parameters of exposure to the adhesive, management specifically instructed other employees to keep all information regarding the adhesive away from the line workers and to remove the safety data sheets, which contained information regarding safe exposure levels, from the adhesive containers. Id. at 226. Eventually, several line workers were hospitalized, many of whom experienced spinal-related injuries, with numbness in their lower extremities. Id. An industrial hygienist testified:

I can’t think of [a plant] that was worse[,] to put ... a group of individuals, into an enclosed area and spray a solvent day in and day out for hours upon hours ... without any ventilation, without proper respiratory protection is not only [a] violation of a variety of occupational health standards; but it’s just, it’s difficult for me to explain why someone would do that, especially in light of the complaints that were coming from those individuals conducting that work.

Id. at 228.

¶ 18. The facts of Franklin demonstrated outrageous actions on the part of an employer who exhibited a profit-motivated disregard for its employees’ safety as well as an actual intent to injure. This Court affirmed the trial court’s decision to deny the defendant’s motion to dismiss because, taking the plaintiffs’ allegations as true, they satisfied the intentional-tort exception to the application of the MWCA. Id. at 232. Ultimately, the facts and testimony of the employees showed actual intent to injure on the part of the employers sufficient to overcome the exclusivity provision of the MWCA. However, this Court declined to extend the “actual intent” standard to include behavior engaged in by the employer which was “substantially certain to” injure the employees. Id. at 244-45 (Dickinson, J., specially concurring). Six Justices of this Court agreed that, “absent the employer’s deliberate intent and design to injure the employee, the law in Mississippi — as it currently exists — does not allow an-injured employee to escape the exclusive-remedy provisions of the Act.” Id. at 245 (emphasis added). The law in Mississippi today remains unchanged from the day of that decision.

¶ 19. Here, the trial court denied the defendants’ Rule 12(b)(6) motion to dismiss. Accordingly, we are bound to look only at the complaint filed by the plaintiffs and to determine whether, taking all of the allegations as true, the complaint makes a claim upon which relief may be granted. In this case, the complaint is voluminous. It consists of 155 pages, containing 818 enumerated paragraphs. The plaintiffs asserted claims for battery, intentional infliction of emotional distress (IIED), creating and maintaining a nuisance, intentionally failing to investigate and remediate contamination of property, maintaining property in a dangerous condition, and conspiring and aiding and abetting with Lowry Development in negligently maintaining Building B as well as committing the above-named torts. We will examine each claim to determine whether it falls outside the exclusivity provision of the MWCA.

1. Whether the claims fall outside of the exclusivity of the Mississippi Workers’ Compensation Act.

A. Battery

¶ 20. The plaintiffs allege that they were exposed intentionally to toxic mold, to a toxic Mold Killer Spray designed to get rid of the mold, and to poisonous fumes from a sewage leak. The claim for battery states:

Vaughn Firm deliberately contrived a series of wrongful acts/omissions, more particularly stated in enumerated paragraphs 288, 343, 345, 355-357, 362, 369, 425, and 556 describing events/occurrences that took place in [Building A] and [Building B] herein, commencing in or near Spring 2006 up through and including February 2011, by use of Vaughn Firm’s Corporate Knowledge (i.e., the collective, combined and composite information accumulated by each and every past and present employee and other agent, accumulated in each and every book and record in use in the past and presently, accumulated as constructive knowledge and accumulated by rule of inquiry) ..., and battered the persons of Mrs. Blackmore, Ms. Young and other Vaughn Firm employees.

¶ 21. With regard to the toxic mold, the plaintiffs contend that V & B battered the plaintiffs when it failed to remediate the mold conditions, and the plaintiffs thereafter inhaled the toxic mold. However, none of the claims asserts that V & B acted with “actual intent” to batter and injure the plaintiffs. Several of the alleged acts of battery involved the use of the Mold Killer Spray, which was being used to kill the mold that was causing injury to the plaintiffs. It is not possible that the defendants were allowing the mold to exist with the intent of injuring the plaintiffs while at the same time attempting to destroy the mold. Further, the application of the Mold Killer Spray clearly was not done with any “actual intent” to injure the plaintiffs. Rather, it was applied in an attempt to remediate the mold situation. Similarly, the plaintiffs contend that they were battered by toxic gas emanating from sewage backup. This claim must fail because there is no allegation that the defendants permitted the sewage backup to exist with the actual intent to injure the plaintiffs.

¶ 22. The plaintiffs’ complaint attempts to frame the facts in a way that mirrors those found in Franklin. They point to the fact that, here, the defendants did not post Material Safety Data Sheets (MSDS) regarding the effects of the Mold Killer Spray where the employees could read them. In Franklin, the defendant employer removed the MSDS from the containers of the toxic adhesive which the employees were forced to spray into a small, unventilated wooden booth without respiratory equipment or safety gear. Here, the Mold Killer Spray was applied in the office in an attempt to combat the mold problem of which the plaintiffs complained. This is not a situation remotely similar to the one in which the plaintiffs were forced to spray toxic adhesive into a small, unventilated wooden box. While the application of the spray may have been negligent, or even grossly negligent, it simply did not rise to the level of “actual intent” required to bring the claim of battery outside of the scope of the MWCA.

¶ 23. Although the plaintiffs may disagree with how V & B attempted to remedy the mold problem, they have failed to state a claim upon which relief can be granted, because they have failed to show that any of the actions alleged as battery were taken with the specific and actual intent to injure them. Accordingly, the claim for battery must be dismissed.

B. Intentional Infliction of Emotional Distress

¶ 24. The plaintiffs allege that V & B “acted willfully and wantonly toward Mrs. Blackmore and Ms. Young” and caused them “to suffer severe emotional distress as a result of [the] acts/omissions of Vaughn Firm.” The plaintiffs allege that a pattern of dishonesty was perpetrated by V & B to cast doubt on the plaintiffs’ suspicions of the existence of the mold and their own symptoms. They point to several instances in which their superiors at V & B denied the existence of mold, suggested alternate sources of the plaintiffs’ ailments, or stated that the problem would be rectified, only to do nothing or not enough. The plaintiffs allege that the defendants warned them not to discuss the mold issue, and suggested they might be depressed or psychosomatic rather than physically ill. They also allege that the defendants hid the October Lab Report, which indicated that the mold level in the office was more than five times greater than OSHA recommendations. However, in the same statement of facts, the plaintiffs admit that V & B admitted that the October Lab Report indicated high levels of mold in the office and that the firm “decided to move out of the 1617 office.” The defendants also apparently denied smelling a gas leak in the office. The plaintiffs also were tasked to clean mold off the office furniture before it was moved to another, mold-free office. Further, the plaintiffs eventually discovered the October Lab Report and found that it listed several types of mold that were found in the building in toxic amounts to susceptible persons.

¶ 25. Under Mississippi law, a plaintiff may recover under a theory of intentional infliction of emotional distress “[w]here there is something about the defendant’s conduct which evokes outrage or revulsion, done intentionally ... even though there has been no physical injury. In such instances, it is the nature of the act itself — as opposed to the seriousness of the consequences — which gives impetus to legal redress.... ” Sears, Roebuck & Co. v. Devers, 405 So.2d 898, 902 (Miss.1981), overruled on other grounds by Adams v. U.S. Homecrafters, Inc., 744 So.2d 736 (Miss.1999). In other words, the conduct alleged must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Pegues v. Emerson Elec. Co., 913 F.Supp. 976, 982 (N.D.Miss.1996) (quoting Restatement (Second) of Torts § 46 cmt. d. (1965)). Accordingly, the plaintiffs must have alleged that the conduct that caused their emotional distress was “so outrageous in character, and so extreme in degree,” that they might recover under a theory of intentional infliction of emotional distress and survive a motion to dismiss.

¶ 26. Taking the allegations of the plaintiffs’ complaint as true, they have failed to state a claim upon which relief can be granted. V & B initially denied that there was any mold in the building. Management suggested other potential causes of the plaintiffs’ ailments. When it became apparent that mold was in fact present in the building, V & B attempted to remediate the situation by applying the Mold Killer Spray. Once the October Lab Report was received, V & B specifically informed the plaintiffs that it would search for new office space. While the defendants’ handling of the mold problem may have been negligent, the allegations do not rise to the level of outrageous and extreme conduct that is necessary to support a claim for intentional infliction of emotional distress. Further, the plaintiffs still must be able to show that the actions of the defendants were conducted with “actual intent” to injure the plaintiffs. The fact that V & B attempted to remediate the mold issue, and ultimately decided to relocate its offices due to the mold, leads to the inevitable conclusion that the actions of V & B were not done with the actual intent to inflict emotional distress upon the plaintiffs. The claim for intentional infliction of emotional dismiss fails as a matter of law and must be dismissed.

C. Conspiracy and Aiding and Abetting

¶ 27. The plaintiffs make two separate claims related to conspiracy and aiding and abetting. They claim that V & B aided and abetted Lowry Development in maintaining a public and private nuisance, and in battering and inflicting emotional distress upon the plaintiffs. They also claim that V & B and Lowry Development conspired together by concealing the presence of toxic mold in Building B, by providing false testimony to the Mississippi Division of Employment Security in March 2010, by providing false statements to OSHA regarding the presence of mold in October 2009, and by concealing an October 2009 report which indicated dangerous levels of toxic mold in the building. The conspiracy is alleged to have occurred in order to retain the services of the plaintiffs.

¶ 28. The plaintiffs seem to claim that V & B conspired with Lowry Development to conceal the truth about the presence of toxic mold in Building B. The gist of the argument is that the conspiracy to conceal the truth directly led to the battery and intentional infliction of emotional distress of Blackmore and Young.

¶ 29. Because the claims for battery and intentional infliction of emotional distress fail because they do not allege, and the facts of the case do not support, that V & B acted with “actual intent” to injure the plaintiffs, the claims for aiding and abetting in the commission of battery and intentional infliction of emotional distress or conspiracy to commit battery and intentional infliction of emotional distress must fail as well. It is obvious that, if the defendants did not actually intend to batter or inflict emotional distress upon the plaintiffs, then they did not conspire to batter or inflict emotional distress upon the plaintiffs. The claims for conspiracy and aiding and abetting to commit battery and intentional infliction of emotional distress should be dismissed for failure to make a claim for which relief can be granted, because the underlying substantive claims of battery and intentional infliction of emotional distress upon which the claims are based are themselves incapable of achieving relief.

¶ 30. The plaintiffs also claim that V & B aided and abetted Lowry Development in the maintenance of a public nuisance. To succeed in this claim, the plaintiffs would have to prove that V & B gave substantial assistance to Lowry Development to maintain the public and private nuisance with the actual intent to injure the plaintiffs. The complaint and briefs show that V & B continuously requested that Lowry Development remedy the moisture intrusion problems at Building B. Further, V & B broke its lease with Lowry Development to move out of Building B. V & B attempted to remedy the nuisance and eventually moved out of the building when it was not remedied.

¶ 31. Taking the complaint as true, V & B did not aid and abet Lowry Development in maintaining a nuisance, and it certainly did not do so with the actual intent to injure the plaintiffs. This Court has held that it is not enough to allege that the employer “knowingly permitted] hazardous conditions to exist or willfully fail[ed] to furnish a safe place to work or knowingly order[ed] the employee to perform a dangerous job.” Griffin, 533 So.2d at 464. This is the essence of the plaintiffs’ claim against V & B. The claim must be dismissed as a matter of law.

2. Whether this Court should change the “actual intent” requirement for claims to fall outside of the MWCA.

¶ 32. The plaintiffs urge this Court to adopt the reasoning of Justice Graves’s concurring opinion in Franklin. Franklin, 18 So.3d at 242. Justice Graves opined that employers’ actions that were “substantially certain” to result in injury also should be exempt from workers’ compensation immunity. Id. at 242-43. This case presents no compelling reason to change the precedent created in Franklin. This Court consistently has rejected that position, and a majority of states are in agreement. In Franklin, the Court stated that, to make a claim that falls outside MWCA immunity, the plaintiff must show actual intent to injure the employee. Id. at 232. Franklin presented a much more serious and grievous case of potential negligence than the one before us. It is unnecessary for the Court to revisit this argument, as the precedent is settled.

II. Lowry’s interlocutory appeal is dismissed.

¶ 33. Lowry filed its petition for interlocutory appeal on December 1, 2011, three days after V & B filed its petition for interlocutory appeal. Lowry argued that the claims against it were intentional torts governed by a one-year statute of limitations, and that the trial court erred in denying Lowry’s Rule 12(b)(6) motion to dismiss. On appeal, Lowry did not file a brief and eventually joined V «& B, upon being notified by the Supreme Court Clerk of its having failed to file a brief. However, V & B’s brief explicitly states that “[t]he Plaintiffs’ claims against the law firm and its managerial personnel are totally distinct from the claims against the landlord [Lowry] and the issues regarding the claims against the landlord are not raised in this appeal.” Further, V & B argues that it eventually moved out of Lowry’s building due, it alleges, to Lowry’s failure to remedy the numerous problems about which V & B complained. V & B is immune from tort liability because of workers’ compensation. Lowry is not. The claims and defenses are, in fact, distinct, and these parties’ interests are not aligned. Without further briefing from the Lowry defendants, we are unable to determine their position on several of the claims against them and the law supporting those positions.

¶ 34. Interlocutory appeal is granted by permission of this Court. See M.R.A.P. 5 (“Interlocutory Appeal by Permission”). Accordingly, it is within our discretion to grant or deny interlocutory appeal. This Court granted Lowry’s petition for interlocutory appeal; but, upon further review, we have determined that interlocutory appeal with regard to Lowry is not appropriate. In light of the above, Lowry’s interlocutory appeal is dismissed. The case therefore is remanded to the trial court for further proceedings.

CONCLUSION

¶ 35. In actions against an employer or coemployee, the Mississippi Workers’ Compensation Act generally provides the sole avenue of relief for an injured employee. The only way to bring a tort claim outside the exclusivity of the act is to allege that the employer or coemployee acted with actual intent to injure the injured party. Taking the allegations in the complaint as true, the plaintiffs in this case have failed to state a claim for which relief can be granted. The complaint cannot support the argument that the defendants acted with the actual intent to injure the plaintiffs. Further, we now decline to extend the standard to include those acts which are “substantially certain” to result in injury. Therefore, the sole avenue of relief for the plaintiffs lies in a claim under the Mississippi Workers’ Compensation Act. Accordingly, we reverse the Circuit Court of the First Judicial District of Harrison- County’s denial of the defendants’ Motion to Dismiss, and render judgment dismissing all claims against the defendants.

¶ 36. The interlocutory appeal of Lowry Development, Inc. and Jim Lowry is hereby dismissed.

¶ 37. AS TO 2011-IA-01763-SCT: REVERSED AND RENDERED. AS TO 2011-IA-01783-SCT: DISMISSED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . Paul Blackmore's suit is derivative of Cherie Blackmore’s.

      . Miss.Code Ann. § 71-3-9 (Rev.2011).

      .The claims that the defendants denominate as intentional torts are battery, intentional infliction of emotional distress, aiding and abetting, civil conspiracy, and loss of consortium resulting from those so-called intentional torts.

      . The decedent’s wrongful-death beneficiaries.


author: LEE, C.J.,

text:
    Jimmy CULBERT, Appellant v. Christopher B. EPPS, Commissioner and Mississippi Department of Corrections, Appellees.
    No. 2011-CP-01305-COA.
    Court of Appeals of Mississippi.
    Dec. 4, 2012.
    Rehearing Denied May 21, 2013.
    Certiorari Denied Sept. 5, 2013.

      Jimmy Culbert, pro se.
    Office of the Attorney General by James M. Norris, R. Stewart Smith Jr., attorneys for appellees.
    Before LEE, C.J., BARNES and FAIR, JJ.
   LEE, C.J.,

for the Court:

¶ 1. While serving a thirty-six-year sentence, Jimmy Culbert was awarded an earned-time allowance. When the Mississippi Department of Corrections (MDOC) removed his earned time of almost eight years, Culbert sought relief through the MDOC administrative process and then filed a complaint in the Jefferson County Circuit Court. The complaint was dismissed with prejudice. Culbert now appeals, arguing: (1) he is entitled to parole; (2) he is entitled to an earned-time allowance; (3) his due-process rights were violated when MDOC removed his earned time; and (4) the trial court erred in failing to make findings under Mississippi Rule of Civil Procedure 52(b).

FACTS AND PROCEDURAL HISTORY

¶ 2. Jimmy Culbert was sentenced to thirty years without parole for sexual battery under Mississippi Code Annotated section 97 — 3—95(1)(c) (Supp.1995) and six years for kidnapping a child under ten years of age, with the sentences to run consecutively. While serving his sentence, Culbert performed several jobs, including working at Mississippi Prison Industries and working as a “trusty,” that credited him with earned time. This earned time accrued, eventually giving him credit for almost eight years, which would reduce his sentence to twenty-eight years and two months. However, MDOC removed the earned time from Culbert’s sentence.

¶ 3. After exhausting the administrative-relief process, Culbert sought injunctive relief in Jefferson County Circuit Court. The trial court denied relief and dismissed the complaint with prejudice. This appeal followed.

STANDARD OF REVIEW

¶ 4. Dismissal of a complaint with prejudice under Mississippi Rule of Civil Procedure 12(b)(6) is reviewed under a de novo standard. Rose v. Tullos, 994 So.2d 734, 737 (¶ 11) (Miss.2008). Under this standard, “[t]he allegations in the complaint must be taken as true, and there must be no set of facts that would allow the plaintiff to prevail.” Id.

DISCUSSION

I. PAROLE

¶ 5. On June 30,1995, a new bill governing the eligibility for parole and earned time went into effect. 1995 Miss. Laws Ch. 596 (S.B.2175). As provided in that bill, Mississippi Code Annotated section 47 — 7—3(l)(g) (Rev.1995) prevented any person convicted after June 30, 1995, from being eligible for parole. Since Culbert committed the crimes on November 16, 1995, and was convicted for them on September 10, 1997, both dates falling after June 30, 1995, he is not entitled to parole for either conviction.

II. EARNED-TIME ALLOWANCE

¶ 6. Mississippi Code Annotated section 47-5-139(l)(d) (Rev.1995) specifically prohibits any person convicted of a sex crime from receiving an earned-time allowance. Culbert asserts that he is entitled to an earned-time allowance under section 47-5-139(2), which reads: “An offender under two (2) or more consecutive sentences shall be allowed commutation based upon the total term of the sentences.” Culbert is not afforded the benefits of this subsection because he is excluded from receiving an earned-time allowance under 47 — 5—139(l)(d).

¶ 7. Culbert argues that if he is not entitled to an earned-time allowance for his sexual-battery sentence, he is entitled to an earned-time allowance for his six-year kidnapping sentence. In 2000, Mississippi Code Annotated section 45-33-23 revised several sections of the code. Under these revisions, section 45 — 33—23(g)(i) defined the kidnapping of a person below the age of eighteen as a sex offense. However, the version of the code applicable when Culbert committed his crimes did not. Under the appropriate version of the code, Culbert’s kidnapping conviction is not defined as a sex offense.

¶ 8. Even so, Culbert’s eight years of earned time should not be applied to his kidnapping sentence. While Culbert serves his sexual-battery sentence, he is barred from receiving an earned-time allowance under section 47 — 5—139(l)(d). See Guy v. Box, 925 So.2d 139, 140-141 (¶ 5) (Miss.Ct.App.2006) (prohibiting an inmate from receiving an earned-time allowance until he served the mandatory portion of his sentence). Only after Culbert completes that sentence will the section 47-5-139(l)(d) bar be lifted, possibly allowing him to earn time under his kidnapping sentence. This issue is without merit.

III. DUE-PROCESS RIGHTS

¶ 9. Culbert’s MDOC time sheets show credit for an earned-time allowance. However, an earned-time allowance should never have been applied. Clearly, MDOC realized this and corrected the clerical error.

¶ 10. We addressed this issue in Adams v. Epps, 900 So.2d 1210 (Miss.Ct.App.2005). In Adams, the basis for Adams’s due-process/ex post facto claims rested on the assumption that he had actually accrued time under an earned-time allowance. Id. at 1212 (¶ 10). That accrued time was, in fact, a legal impossibility, as Adams was ineligible to receive earned time because of the sentence he was serving. Id. Whether the MDOC error was a mistake or an oversight, Adams did not actually accrue the time. Id. at 1212-13 (¶ 10).

¶ 11. Here, Culbert was informed he had accumulated time under an earned-time allowance. This time never actually accrued, because Culbert was ineligible to receive it while serving his sexual-battery sentence. Since the time was never actually earned, nothing was taken from Cul-bert in violation of his due-process rights. Id. at 1213 (¶ 10).

¶ 12. The trial court correctly dismissed Culbert’s complaint. Accepting Culbert’s assertions as true, section 47 — 5—139(1)(d) excludes him from receiving an earned-time allowance. “Therefore, under this argument, he has not stated a claim for which relief may be granted; that is, his petition does not state any kind of redress-able due[-]process/ex post facto injury, because the State did not, in fact, take anything from him.” Adams, 900 So.2d at 1213 (¶ 11).

¶ 18. Therefore, we affirm the trial court’s dismissal of Culbert’s complaint.

IV. MISSISSIPPI RULE OF CIVIL PROCEDURE 52(b)

¶ 14. Culbert moved for additional findings by the trial court, which denied the motion. Culbert contends the trial court erred, and he is entitled to additional findings under Mississippi Rule of Civil Procedure 52(b).

¶ 15. Rule 52 is only applicable “[i]n all actions tried upon the facts without a jury....” M.R.C.P. 52(a). Culbert’s complaint was dismissed with prejudice and, therefore, was never tried upon the facts. Rule 52(b) is inapplicable. This issue is without merit.

¶ 16. THE JUDGMENT OF THE JEFFERSON COUNTY CIRCUIT COURT DISMISSING THE COMPLAINT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JEFFERSON COUNTY.

IRVING AND GRIFFIS, P. JJ., BARNES, ISHEE, ROBERTS, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . The current statutory scheme for parole is explained in McGovern v. Mississippi Department of Corrections, 89 So.3d 69, 72 (¶ 8) (Miss.Ct.App.2011).


author: LEE, C.J., GRIFFIS, P.J.,

text:
    KGC PROPERTIES INC., Appellant v. TRIANGLE MAINTENANCE SERVICES LLC, Appellee.
    No. 2011-CA-00717-COA.
    Court of Appeals of Mississippi.
    Dec. 4, 2012.
    Rehearing Denied May 28, 2013.
    Certiorari Denied Sept. 5, 2013.

      J. Hale Freeland, Oxford, Nathan L. Barrett, attorneys for appellant.
    William Thomas Cooper, Kristen Wood Williams, Columbus, attorneys for appel-lee.
    Before LEE, C.J., MAXWELL and RUSSELL, JJ.
   LEE, C.J.,

for the Court:

¶ 1. Triangle Maintenance Services LLC (Triangle) filed a stop-payment notice requesting KGC Properties Inc. to pay $35,601.93. KGC refused to pay. Triangle sued KGC, and the Lafayette County Chancery Court granted a judgment in favor of Triangle for $20,654.11, which included $5,588.23 in attorney’s fees. KGC now appeals, arguing: (1) it did not owe Oxford Dozer Company (ODC) at the time Triangle filed its stop-payment notice, and therefore, the stop-payment notice did not “attach;” and (2) Triangle was not entitled to attorney’s fees.

FACTS AND PROCEDURAL HISTORY

¶ 2. KGC contracted with ODC to construct a development near Oxford, Mississippi. ODC, in turn, subcontracted with Triangle to perform curb and gutter work for the development. After performing the work, Triangle sent an invoice to ODC for $35,601.93. On October 22, 2008, KGC paid ODC $43,382.70. Claude Neal, owner of ODC, signed an affidavit of release of liens; however, Triangle was never paid for the work it performed.

¶ 3. After the October 22, 2008 payment, ODC abandoned the project. Days later, Total Lawn Care sent a stop-payment notice to KGC. KGC quickly received two additional stop-payment notices — one from Williams Equipment and Supply and the other from CMC Ready Mix. KGC notified ODC of the stop-payment notices. ODC responded, informing KGC it could not complete the job and suggesting that KGC contract with Mark Cox because he was the only contractor Neal had contacted who would “finish the job for the amount of money that is left on the contract.” Instead, KGC paid another contractor $52,190.10 to complete the job.

¶ 4. On January 19, 2009, Triangle sent a demand letter to ODC, but ODC never responded. Later that month KGC received another stop-payment notice from Sparks Auto Parts for $13,385.85. And on February 2, 2009, Triangle filed a stop-payment notice for $35,601.93. KGC paid three of the five stop-payment notices— those from Total Lawn Care, Williams Equipment and Supply, and CMC Ready Mix.

¶ 5. Triangle sued KGC seeking payment as a subcontractor under Mississippi Code Annotated section 85-7-181 (Rev. 2011). Ruling in favor of Triangle, the chancery court stated that KGC should have paid the stop-payment notices in proportion to the amount of claims received, up to the remaining $32,000 left on the contract. Because Triangle’s claims were 41.92% of the claims submitted under stop-payment notices, Triangle was entitled to 41.92% of the $85,939.60 total for stop-notice claims or $15,065.88, as well as $5,588.23 in attorney’s fees. This appeal followed.

STANDARD OF REVIEW

¶ 6. A chancellor’s findings will not be disturbed “when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong [or] clearly erroneous[,] or [applied] an erroneous legal standard[.]” Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002) (citations omitted). Additionally, “it is not the job of [the appellate court] to redetermine questions of fact resolved by the chancellor.” Stockstill v. Gammill, 943 So.2d 35, 40 (¶ 8) (Miss.2006).

¶ 7. A chancellor’s “interpretation and application of the law is reviewed under a de novo standard.” In re Guardianship of Savell, 876 So.2d 308, 312 (¶ 4) (Miss.2004).

ANALYSIS

¶ 8. Under section 85-7-181, a subcontractor can file a stop-payment notice and request the owner to pay the subcontractor directly rather than paying the amount to the contractor. For a subcontractor to reap the benefits of section 85-7-181, he must “giv[e] actual notice prior to the time the owner pays the prime contractor.” Amerihost Dev., Inc. v. Bromanco, Inc., 786 So.2d 362, 365 (¶ 12) (Miss.2001). Therefore, the requirements of section 85-7-181 are two-fold: (1) the subcontractor must give actual notice, and (2) the owner must owe the prime contractor at the time the subcontractor gives the notice. If there are insufficient funds to pay all of the stop-payment notices, the owner should prorate its payments in proportion to the amount of the total claims received. Miss.Code Ann. § 85-7-181.

¶ 9. Neither party raised an issue with the actual notice; therefore, the question before this Court is if KGC owed ODC on February 2, 2009, when Triangle filed its stop-payment notice.

I. REMAINING AMOUNT ON THE CONTRACT

¶ 10. KGC contends that it did not owe ODC at the time Triangle filed its stop-payment notice, and because of that, Triangle’s stop-payment notice could not have “attached.” KGC argues that the chancery court misinterpreted and misapplied the law, which on appeal warrants a de novo review. Tucker v. Prisock, 791 So.2d 190, 192 (¶ 10) (Miss.2001). This contention is incorrect. The chancery court made a finding of fact that KGC still owed ODC under the contract at the time Triangle filed its stop-payment notice, stating specifically that “there is no question in the [c]ourt’s mind that at least $32,000.00 was owed on the contract....” That finding triggered the application of section 85-7-181. Because this issue is based on a finding of fact and not a misapplication of the law, the Court will only reverse the decision if the chancellor was manifestly wrong or clearly erroneous or applied an incorrect legal standard. Miller v. Pannell, 815 So.2d 1117, 1119 (¶ 9) (Miss.2002) (citations omitted).

¶ 11. On November 21, 2008, KGC’s president, Kenny Coleman, sent a letter to Claude Neal, owner of ODC. In the letter Coleman advises Neal that KGC had received three stop-payment notices, one each from Total Lawn Care, Williams Equipment and Supply, and CMC Ready Mix. Coleman also stated that KGC removed $57,000 from the $89,000 remaining as ODC’s final draw, leaving “$32,000 to cover the 3 debts above [the stop-payment notices].” Also, Coleman apprised Neal that KGC would be issuing dual-payee checks in the order the stop-payment notices were received up to the $32,000 maximum.

¶ 12. On March 12, 2009, Coleman sent a letter to all five companies — Total Lawn Care, Williams Equipment and Supply, CMC Ready Mix, Triangle, and Sparks Auto Parts — that had served KGC with stop-payment notices. Coleman wrote that “$32,000 was all that was left to draw at the time Mr. Neal stopped doing his work....” He also informed three of the five companies that KGC would be issuing dual-payee checks in the amounts requested. Coleman notified the creditors that he would not be paying any further stop-payment notices, as he was only paying them “because [he] believefd] ... there would be funds left over when the job was completed.” And on March 12, 2009, KGC issued the dual-payee checks for the first three stop-payment notices.

¶ 13. Clearly from the language in the November 21, 2008 letter and KGC’s payments made with dual-payee checks, KGC owed ODC $32,000 on November 21, 2008. Additionally, Coleman made no payments to ODC or any of the three subcontractors prior to Triangle’s filing of its stop-payment notice. Therefore, KGC still owed on the contract at the time that Triangle filed its stop-payment notice on February 2, 2009.

¶ 14. The chancery court was not manifestly wrong in finding that KGC still owed ODC at least $32,000 when Triangle filed its stop-payment notice. The chancellor properly applied section 85-7-181. Therefore, we find this issue is without merit.

II. ATTORNEY’S FEES

¶ 15. Section 85-7-181 specifically states, “[T]he court ... shall give judgment and award costs, and reasonable attorney’s fees, according to the rights of the several parties in accordance herewith.” KGC argues that since Triangle’s stop-payment notice did not “attach,” it is not entitled to attorney’s fees under section 85-7-181. As stated earlier, KGC owed $32,000 on its contract with ODC when Triangle filed its stop-payment notice. Under the plain language of section 85-7-181, Triangle is entitled to attorney’s fees and costs.

¶ 16. The chancellor did not abuse his discretion when he awarded Triangle $5,588.23 in attorney’s fees and expenses. Therefore, we affirm.

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

IRVING, P.J., ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR. GRIFFIS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES, J.

GRIFFIS, P.J.,

dissenting:

¶ 18. The majority correctly presents the question to be decided. Did KGC owe ODC any money on February 2, 2009, when Triangle served its stop-payment notice? The chancellor found that KGC did owe money to ODC, and the majority agreed. I disagree. I find that there is no evidence to support the finding that KGC owed ODC any amount of money on February 2, 2009. Therefore, under Mississippi Code Annotated section 85-7-181 (Rev.2011), Triangle was not entitled to recover from KGC. I respectfully disagree with the majority and dissent. I would reverse and render the chancellor’s judgment.

¶ 19. Section 85-7-181, titled “Amount due contractor ... may be bound by written notice; suit,” in relevant part provides:

When any contractor ... shall not pay any person who may have furnished materials, labor or rental or lease equipment used in the erection, construction, alteration, or repair of any house, building, structure, [or] fixture ... the amount due by him to any subcontractor therein, ... rental or lease equipment supplier or laborer employed by him therein, any such person, subcontractor, journeyman, laborer or rental or lease equipment supplier may give notice in writing to the owner thereof of the amount due him and claim the benefit of this section; and, thereupon the amount that may be due upon the date of the service of such notice by such owner to the contractor ... shall be bound in the hands of such owner for the payment in full, or if insufficient then pro rata, of all sums due such person, subcontractor, journeyman, rental or lease equipment supplier or laborer who might lawfully have given notice in writing to the owner hereunder, and if after such notice, the contractor ... shall bring suit against the owner, the latter may pay into court[ ] the amount due on the contract; and thereupon all persons entitled hereunder, so far as known, shall be made parties and summoned into court to protect their rights, contest the demands of such contractor or master workman and other claimants; and the court shall cause an issue to be made up and tried and direct the payment of the amount found due in accordance with the provisions hereof; or in case any person entitled to the benefits hereof, shall sue the contractor or master workman, such person so suing shall make the owner and all other persons interested, either as contractors, master workmen, subcontractors, laborers, journeymen, rental or lease equipment suppliers or mate-rialmen, so far as known, parties to the suit (and any such party not made a party in any suit hereunder authorized may intervene by petition), and, thereupon the owner may pay into the court the amount admitted to be due on the contract or sufficient to pay the sums claimed, and the court shall cause an issue to be made up and award the same to the person lawfully entitled; in either case the owner shall not be liable for costs; but if the owner, when sued, with the contractor or master workman, shall deny any indebtedness sufficient to satisfy the sums claimed and all costs, the court shall, at the instance of any party interested, cause an issue to be made up to ascertain the true amount of such indebtedness and shall give judgment and award costs, and reasonable attorney’s fees, according to the rights of the several parties in accordance herewith. In case judgment shall be given against such owner, such judgment shall be a lien, from the date of the original notice, and shall be enforced as other liens provided in this chapter. The owner shall not be liable in any event for a greater amount than the amount contracted for with the contractor.

¶ 20. The chancellor concluded that KGC owed $82,000 to ODC, and the chancellor determined Triangle was entitled to recover $15,065.88 and attorney’s fees in the amount of $5,588.28 under section 85-7-181. The chancellor identified two letters that supported the decision.

¶ 21. First, in a letter dated November 21, 2008, KGC attempted to get ODC to complete its work under the contract. KGC acknowledged it had received three stop-payment notices, from Total Lawn Care, Williams Equipment and Supply, and CMC Ready Mix. The letter also said that KGC intended to make dual-payee checks to these companies, up to $32,000. KGC said that it would pay the stop-payment notices in the order they were received.

¶ 22. Second, in a letter dated March 12, 2009, KGC said that the cost to complete the job was $52,190.10, and there was only $32,000 “left to draw” at the time ODC stopped work. The letter said that KGC intended to write checks to the following entities in the following amounts: (1) Total Lawn Care and Claude Neal/ ODC for $4,726.26, (2) Williams Equipment and Supply and Claude Neal/ODC for $7,379, and (3) CMC Ready Mix for $23,834.25. More importantly, the letter stated that KGC had paid beyond its contractual obligation and only paid these companies for work performed because KGC had led them to believe funds would be left over when the job was completed.

¶ 23. This Court “will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, applied an erroneous legal standard, was manifestly wrong, or was clearly erroneous.” Hamilton v. Hopkins, 834 So.2d 695, 699 (¶ 12) (Miss.2003). Here, the chancellor clearly erred when he determined KGC owed ODC $32,000 on the contract.

¶ 24. There is no evidence in the record to establish that KGC owed, on September 2, 2009, any further sum to ODC. In fact, the opposite is true. The record established that KGC had paid all sums owed ODC on October 22, 2008. After that payment, ODC stopped work and abandoned the project. As a result, ODC abandoned its right to future payments under the contract.

¶ 25. As of ODC’s abandonment of the project, it is correct to say that the total sum owed under the contract less the amounts paid to ODC left an balance of $32,000. However, this balance was to be used to finish the contract.

¶ 26. ODC did not finish the contract. Therefore, the balance of $32,000 was not owed to ODC. Instead, KGC had the right to use the balance to finish the contract. The evidence cited by the chancellor did not prove that KGC owed any sum to ODC. Instead, at best, it established that KGC gratuitously paid ODC’s creditors.

¶ 27. This case is similar to Williams v. Taylor, 216 Miss. 563, 62 So.2d 883 (1953). In Williams, the owner of a subdivision project hired a contractor to build houses. Id. at 566, 62 So.2d at 884. The contractor began work but later abandoned the job. Id. at 567-68, 62 So.2d at 884. The owner found another contractor to finish the job. Id. at 568, 62 So.2d at 884. Subcontractors filed stop notices with the owner. Id. The Mississippi Supreme Court found that the owner owed the main contractor nothing. Id. at 569, 62 So.2d at 885.

¶ 28. Like in Williams, on February 2, 2009, KGC did not owe ODC any additional sum. ODC abandoned the project and forfeited its right to the remainder of the contract. The $32,000 balance was not owed to ODC because it was not earned.

¶ 29. When KGC issued dual-payee checks to other companies, KGC did not admit that it owed any amount to ODC. ODC had filed a materialman/construction lien against KGC. KGC’s president, Kenny Coleman, testified that he made the checks payable to the various entities because at the time he was not sure about the outcome of the lien action. Thus, Coleman testified that the dual-payee checks were a proactive step and not an admission that KGC owed ODC.

¶ 30. Because KGC did not owe ODC, Triangle is not entitled to any relief under the stop-payment-notice statute. Therefore, I would reverse and render the decision of the Lafayette County Chancery Court.

BARNES, J., JOINS THIS OPINION.

      . A Mississippi federal court recently held this statute unconstitutional. Noatex Corp. v. King Constr. of Houston, LLC, 864 F.Supp.2d 478, 484-85 (N.D.Miss.2012).