author: MYERS, P.J.,

text:
    Julia WALLS, R.C. Holliday, and Stella Coleman, Appellants v. Sherman IVY, Appellee.
    No. 2008-CA-01669-COA.
    Court of Appeals of Mississippi.
    April 13, 2010.
    Bennie L. Jones, Jr., attorney for appellants.
    Randolph Walker, attorney for appellee.
    Before MYERS, P.J., BARNES and MAXWELL, JJ.
   MYERS, P.J.,

for the Court:

¶ 1. On March 11, 2003, Julia Walls, R.C. Holliday, and Stella Coleman (collectively, the plaintiffs) filed a complaint in the Chancery Court of Clay County to set aside or reform a warranty deed recorded in January 1974. The deed purported to have been executed in late 1973 and early 1974 by the heirs of Julia Holliday, consisting of the plaintiffs, Christine Heard Ivy, and three other individuals — William Holli-day, LaZure Holliday, and Bernice Heard. It conveyed six acres of land in Clay County to Christine Heard Ivy and her husband, Sherman Ivy (Ivy). The signatures of R.C. Holliday, William Holliday, and Christine Heard Ivy were notarized in Clay County, Mississippi, while the signatures of Julia Walls, Stella Coleman, La-Zure Holliday, and Bernice Heard were notarized in Cook County, Illinois. Some time prior to the initiation of this action, Christine Heard Ivy died.

¶ 2. The plaintiffs alleged in their complaint that they had intended to convey only one acre to the Ivys and that the deed conveying six acres had been either inadvertently or fraudulently executed. They further alleged that they had discovered the deed in late 2002, approximately twenty-eight years after it was recorded, and had sought counsel and filed suit shortly thereafter. Ultimately, both parties filed competing motions for summary judgment. Relevant to this appeal is Ivy’s motion, which alleged that summary judgment should be granted because the plaintiffs’ claims were barred by the statute of limitations.

¶ 3. The plaintiffs argued that their suit was not barred because a concealed fraud tolled the statute of limitations. They introduced the depositions of plaintiffs Julia Walls and R.C. Holliday, as well as the deposition of Bernice Heard, a grantor who was not a plaintiff in this suit, in opposition to the motion. Julia Walls and Bernice Heard stated in their affidavits that they had never seen the deed in question, and they alleged that their signatures on the instrument had been forged. R.C. Holliday’s affidavit stated only that he had “intended” to convey only one acre, not six as the deed stated.

¶ 4. The trial court held that because the deed was recorded, it was not “concealed” and, therefore, the statute of limitations could not be tolled by a concealed fraud. The trial court granted summary judgment to Ivy, and the plaintiffs appeal.

STANDARD OF REVIEW

¶ 5. We review a trial court’s disposition of a motion for summary judgment de novo. Treasure Bay Corp. v. Ricard, 967 So.2d 1235, 1238 (¶ 10) (Miss.2007). This Court “examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” City of Jackson v. Sutton, 797 So.2d 977, 979 (¶ 7) (Miss.2001) (citations omitted). The moving party has the burden of demonstrating that no genuine issue of material fact exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact. Id. “If no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that party’s favor.” Monsanto Co. v. Hall, 912 So.2d 134, 136 (¶ 5) (Miss.2005).

DISCUSSION

1. Tolling of the Statute of Limitations; Concealed Fraud

¶ 6. Because the deed was recorded in 1974 and suit was brought in 2003, both parties agree that the plaintiffs’ claims are barred by the statute of limitations unless the statute was tolled by the concealed fraud doctrine. The plaintiffs argue that their affidavits created a genuine issue of material fact in this regard and that the chancellor erred in granting summary judgment to Ivy.

¶ 7. This Court has stated that the statute of limitations on a cause of action to set aside an alleged fraudulent conveyance begins to run “once the complainant either discovers, or should have discovered with due diligence, the property transfer.” McWilliams v. McWilliams, 970 So.2d 200, 203 (¶ 8) (Miss.Ct.App.2007) (citing O’Neal Steel, Inc. v. Millette, 797 So.2d 869, 875-76 (¶¶ 24-26) (Miss.2001)). However, “[c]oncealed fraud may toll the statute of limitations, [but it] will not toll the statute ... where the instrument is recorded as a matter of public record.” Id. at (¶ 9) (citing Carder v. BASF Corp., 919 So.2d 258, 262 (¶ 14) (Miss.Ct.App.2005)). “When the information is placed in the public domain, the doctrine of fraudulent concealment ceases to be applicable.” Carder, 919 So.2d at 262 (¶ 14). Simply put, the rule is that “where an alleged fraudulent conveyance of real property is recorded and available to the public, there can be no concealed fraud preventing the running of the statute of limitations.” McWilliams, 970 So.2d at 203-04 (¶ 9) (quoting O’Neal Steel, 797 So.2d at 876 (¶ 26)).

¶ 8. The plaintiffs argue that the rule as stated in McWilliams is inapplicable because some of the plaintiffs, particularly Julia Walls and Stella Coleman, are residents of Illinois and could not have been put on notice by the filing of a deed in the record office of Clay County, Mississippi. For relevant authority, the plaintiffs cite only Guiseppe v. Cozzani, 193 So.2d 549, 554 (Miss.1966), where the supreme court stated:

All of the nephews and nieces of Frank Toney, except Mary Cozzani, lived in the Republic of Italy, at the time of his death in 1896. They, thus, lived some 4,000 miles from the shores of the United States. They were uneducated people who knew nothing about the United States, its laws, its courts and its legal records. How could this Court or any court hold that these illiterate people, 4,000 miles away, were given actual notice or the equivalent thereof by the filing of pleadings and deeds in the Warren County Chancery Clerk’s Office in Vicksburg, Mississippi?

Although the court in Guiseppe did find a concealed fraud, this statement was not addressed to that issue. The court was instead concerned with whether a recorded deed constituted sufficient notice for adverse possession. Id. at 553-54. Furthermore, the holding that it did not in that case was not predicated on the distances involved, but on the rule of law that one cotenant must “oust” the others before he may obtain exclusive title to common property through adverse possession. Id. “Ouster is unequivocal notice by one co-tenant that he intends to adversely possess the claims of his fellow co-tenants.” Williams v. Estate of Williams, 952 So.2d 950, 953 (¶ 8) (Miss.Ct.App.2006) (citing Jordon v. Warren, 602 So.2d 809, 815 (Miss.1992)). The Guiseppe court concluded that the recording of a deed — irrespective of where the cotenants were located— was insufficient notice of an adverse claim to constitute their ouster. Guiseppe, 193 So.2d at 554. This issue is without merit.

2. Remand to File Amended Complaint

¶ 9. In their second issue, the plaintiffs argue that the trial court should have granted Ivy’s initial motion to dismiss their complaint, without prejudice, to allow them to file an amended complaint “in order to better and more artfully draw their complaint.”

¶ 10. We find this issue procedurally barred on appeal because the plaintiffs have failed to cite any relevant authority showing that this amounted to reversible error. Ruff v. Estate of Ruff, 989 So.2d 366, 372 (¶ 24) (Miss.2008). Furthermore, the issue is subject to another procedural bar on appeal because it appears from the record that the plaintiffs made no effort to file an amended complaint during the approximately five years this case was before the lower court. The supreme court has stated that “a trial judge cannot be put in error on a matter not presented to him for his decision.” Bender v. N. Meridian Mobile Home Park, 636 So.2d 385, 389 (Miss.1994) (citing Mills v. Nichols, 467 So.2d 924, 931 (Miss.1985)). We decline to address this issue.

3. Tolling of the Statute of Limitations; Wills Probated

¶ 11. In their reply brief on appeal, the plaintiffs argue that the statute of limitations should be tolled because the estates of Julia Holliday and Christine Heard Ivy were never probated. We decline to address this issue because it is procedurally barred since it was not raised in their principle brief on appeal, Tanner v. State, 20 So.3d 764, 768 n. 4 (Miss.Ct.App.2009), and because the plaintiffs have failed to cite any relevant authority. Ruff, 989 So.2d at 372 (¶ 24).

¶ 12. THE JUDGMENT OF THE CHANCERY COURT OF CLAY COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT.

      . This rule was modified somewhat in Quates v. Griffin, 239 So.2d 803, 811 (Miss.1970) (opinion on rehearing), where the supreme court held that a deed could constitute an ouster so long as “the grantee ... had no interest whatever in the land prior to the execution of the deed, either as a cotenant by deed or as a cotenant by inheritance.”


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Michael GRAZIOSI, Appellant v. CITY OF JACKSON, Mississippi, Appellee.
    No. 2009-CA-00838-COA.
    Court of Appeals of Mississippi.
    April 13, 2010.

      Judson M. Lee, attorney for appellant.
    Pieter Teeuwissen, Kimberly Banks, attorneys for appellee.
    Before MYERS, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court:

¶ 1. This appeal arises out of a settlement agreement between Michael Graziosi and his former employer, the City of Jackson, Mississippi (the City). The Hinds County Chancery Court found that the City did not violate the settlement agreement in its termination of Graziosi’s employment. Feeling aggrieved, Graziosi appeals and asserts that: (1) his termination should be controlled by Mississippi contract law, (2) an arbitrary and capricious standard was erroneously applied by the chancellor, and (3) the chancellor erred in finding that the City acted in good faith when it terminated Graziosi’s employment.

FACTS

¶ 2. Graziosi began working for the City as a firefighter in 1988. In November 2002, he was placed on leave without pay, and his employment was terminated by the City in May 2005. Thereafter, Graziosi filed a wrongful-termination claim with the City’s Civil Service Commission. The Commission affirmed Graziosi’s termination but found that he should have been paid while on leave and consequently awarded him a judgment of more than $75,000 in back pay.

¶ 3. In September 2007, Graziosi and the City entered into a settlement agreement. The agreement stated, among other provisions, that Graziosi would be paid only $45,000 of the $75,000 judgment against the City; in return, the City would reemploy Graziosi as a firefighter at his pri- or rank of captain. However, the first twelve months of Graziosi’s re-employment would be a probationary period, during which Graziosi would have no recourse to the Commission for any discipline enacted against him. The agreement indicated that the City would act in good faith in the imposition of any discipline; furthermore, the City’s Mayor would be required to approve of any severe disciplinary measures, such as termination. Pursuant to those terms, Graziosi was reinstated as a captain with the City’s fire department on September 15, 2007.

¶ 4. Graziosi worked for the City without incident for approximately two months, until November 13, 2007. On that evening, Graziosi and other firefighters attended a union meeting in Jackson. Graziosi was off-duty at the time, and the meeting was held at a location that was not owned by the City. It is uncontradicted that Graziosi and another firefighter, Travis Frazier, got into an argument at the meeting. However, Graziosi contends that the altercation remained completely verbal, whereas Frazier claims that Graziosi punched him in the side of the head. It is undisputed that Graziosi was escorted from the building by another firefighter, Brandon Falcon, after the altercation. Frazier meanwhile called 911 to report that he had been assaulted by Graziosi. Officer Deidre Jefferson responded to the call and spoke with Frazier, who related that he had been hit on the left side of his head by a fellow firefighter. Officer Jefferson observed that Frazier was rubbing his left temple and complained of swelling in that location. After shining her flashlight on Frazier, Officer Jefferson observed redness around his left temple area.

¶ 5. On November 17, 2007, Graziosi was served with a citation regarding the assault charge. Thereafter, at the direction of Jackson Fire Department Chief Vernon Hughes, Gregory Travis, the Chief Investigator in the Fire Department’s Internal Affairs Division (IAD), began an investigation into the union meeting incident.

¶ 6. As part of the IAD’s investigation, Frazier, Graziosi, Falcon, and Patrick Ar-món, another firefighter who witnessed the November 13 altercation, were all interviewed. During his interview, Frazier stated that he had been hit on the right side of his head by Graziosi. Frazier was not asked about this discrepancy from his statement on November 13, when he told Officer Jefferson that he was hit on the left side of his head. Graziosi maintained his innocence during his interview. Neither Falcon nor Armón would discuss the altercation with the investigators. The IAD also reviewed Officer Jefferson’s police report. It appears from the record that the IAD was aware that Frazier had sought medical attention following the altercation, but it did not review any actual medical records. Chief Investigator Travis compiled an IAD file regarding the incident between Graziosi and Frazier; the file was given to Chief Hughes, as was Chief Investigator Travis’s conclusion that Graziosi had physically assaulted Frazier.

¶ 7. Thereafter, on April 10, 2008, Gra-ziosi’s employment was terminated; he received notice of the termination by means of a hand-delivered letter. On September 3, 2008, Graziosi was tried before the Hinds County Justice Court on the assault charge and was acquitted. At the trial, both Falcon and Armón testified on Gra-ziosi’s behalf and stated that Graziosi had not assaulted Frazier. Officer Jefferson did not testify at the trial.

¶ 8. Graziosi filed for unemployment benefits following his termination and was initially denied benefits. On September 17, 2008, however, after an appeal by Graziosi, an administrative law judge with the Mississippi Department of Employment Security found that the City had not proven that Graziosi was discharged for misconduct as that term is defined in Mississippi’s unemployment-compensation law. The City was consequently ordered to pay unemployment benefits to Graziosi.

¶ 9. On October 9, 2008, Graziosi filed a petition in the Hinds County Chancery Court requesting that the City be forced to abide by the 2007 settlement agreement. After hearing testimony from Graziosi, Falcon, Armón, Chief Hughes, Chief Investigator Travis, Frazier, and Officer Jefferson, the chancery court ruled in favor of the City, finding that the City had acted in good faith in terminating Graziosi.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 11. We have “a limited standard of review in appeals from [a] chancery court.” Corporate Mgmt., Inc. v. Greene County, 23 So.3d 454, 459(11) (Miss.2009) (citing Tucker v. Prisock, 791 So.2d 190, 192(10) (Miss.2001)). A chancellor’s factual findings will not be disturbed if they are “supported by substantial evidence.... ” Id. (quoting Biglane v. Under the Hill Corp., 949 So.2d 9, 13-14(17) (Miss.2007)). “However, on questions of law, appellate courts employ a de novo standard of review.” Id. (quoting Biglane, 949 So.2d at 14(17)).

1. Effect of Contract Law

¶ 12. In this issue, Graziosi claims that the chancellor erred when she found that Graziosi was an at-will employee who could be terminated at any time, for any reason. We agree that the chancellor erred in so finding; at least for the first year of Graziosi’s employment with the City, Graziosi was hired pursuant to a contract, specifically the 2007 settlement agreement, and his status was defined by that contract.

¶ 13. Although we agree that the chancellor erred in finding that Graziosi was an at-will employee, we find no merit to this issue. The chancellor’s conclusion regarding Graziosi’s status as an at-will employee was essentially dicta, as the chancellor went on to find that the City acted in good faith in disciplining Graziosi, which was what was required of the City according to the settlement agreement. The chancellor’s finding regarding whether the City acted in good faith is supported by substantial evidence.

2. Application of Arbitrary and Capricious Standard

¶ 14. In her opinion, the chancellor discussed the implied covenant of good faith and fair dealing that attaches to parties to a contract. The chancellor then ultimately concluded that: “the City of Jackson followed established procedures in its termination of Graziosi. This [cjourt is also persuaded that the City of Jackson acted with substantial evidence and thus its actions were not arbitrary and capricious. The City of Jackson acted in good faith and fair dealing.” (Emphasis added). Also included in the chancellor’s opinion is an analysis of the steps that the City took before terminating Graziosi’s employment.

¶ 15. In her analysis, the chancellor stated the following, in part, regarding whether the City’s decision was arbitrary and capricious: “Graziosi claims that the City of Jackson terminated him with no credible or verifiable evidence to support its decision[,] thereby rendering his termination arbitrary and capricious. This [c]ourt disagrees.” Therefore, it appears that the chancellor felt the need to discuss whether the City’s decision was arbitrary and capricious in response to Graziosi’s arguments.

¶ 16. The proper standard that should have been applied by the chancery court, pursuant to the agreement between Gra-ziosi and the City, was whether the City acted in good faith in exercising discipline against Graziosi. The chancellor determined that the City had acted in good faith in terminating Graziosi’s employment, a conclusion that we affirm. Any discussion of whether the City acted arbitrarily or capriciously was mere dicta and was in response to Graziosi’s own arguments.

¶ 17. This contention of error is without merit.

3. Dealing in Good Faith

¶ 18. Graziosi contends that the City did not act in good faith in terminating his employment. He specifically attacks the City’s reliance on its IAD investigation, the chancellor’s finding that the City used Frazier’s medical records before terminating Graziosi’s employment, and the City’s use of Officer Jefferson’s police report. Graziosi places great emphasis on the fact that Frazier stated to the IAD that he was struck on the right side of his head, while he stated at all other times that he was hit on the left side of his head.

¶ 19. We agree with the chancellor’s finding that the City acted in good faith. In fact, it appears from the record before us that, as a probationary employee, Gra-ziosi could have been terminated solely on the basis of the assault complaint to the police. However, the City went one step further and conducted an internal investigation of the altercation. This Court refuses to impute ill will to the IAD’s investigation merely because of a discrepancy in Frazier’s statements. Frazier was consistent in his story that Graziosi approached him from behind before striking him. Furthermore, the City had Officer Jefferson’s police report, wherein she indicated that she observed redness around Frazier’s left temple. The City even gave Gra-ziosi a chance to tell his side of the story to investigators. Essentially, the IAD investigation included Graziosi’s side of the story, Frazier’s version of events, and Officer Jefferson’s police report. If the investigators found Frazier’s claims more credible than Graziosi, they were entitled to do so. There is no evidence in the record before this Court that the investigation was conducted without good faith on the part of the City.

¶20. Graziosi also complains that the City did not suspend him without pay and wait for the outcome of his criminal trial. As already discussed, Graziosi was acquitted at his criminal trial, which took place after the termination of his employment with the City. Simply put, the City was not required to wait for the outcome of Gra-ziosi’s criminal trial. While there was testimony to the effect that other firefighters accused of criminal misconduct had been placed on leave without pay while then-cases went to trial, Graziosi was a probationary employee. He was not entitled to be placed on leave without pay, nor is the City bound by the outcome of his criminal trial.

¶ 21. This contention of error is also without merit.

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

KING, C.J., MYERS, P.J., GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. LEE, P.J., NOT PARTICIPATING.

      . It is not clear from the record why Graziosi was placed on leave without pay. Some documents in the record indicate that Graziosi was terminated in June 2005 rather than May 2005.

      . The record contains no explanation as to why Falcon and Armón, both eyewitnesses to the incident, were unwilling to testify in the investigation conducted by Officer Jefferson but were willing to do so in the criminal proceedings.


author: BARNES, J.,

text:
    Bruce H. PENTON, Appellant v. Carol Annette PENTON, Appellee.
    No. 2007-CA-02046-COA.
    Court of Appeals of Mississippi.
    April 13, 2010.

      Betsy E. Walker, attorney for appellant.
    James R. Hayden, Petal, attorney for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   BARNES, J.,

for the Court:

¶ 1. Bruce H. Penton (Bruce) appeals the judgment of the Chancery Court of Pearl River County, Mississippi, which made certain awards of the marital property between him and Carol A. Penton (Annette). On appeal, Bruce raises several issues regarding the distribution of the property. Finding that Bruce failed to file a timely notice of appeal, we dismiss his appeal for lack of jurisdiction.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Bruce and Annette were married in 1980 and have three grown children. The couple separated in November 2004. In January 2005, Bruce filed for divorce in the Pearl River County Chancery Court on the grounds of habitual, cruel and inhuman treatment or, alternatively, irreconcilable differences. Bruce requested an equitable distribution of the marital assets. In response, Annette filed an answer and counterclaim for divorce based on habitual, cruel and inhuman treatment and adultery. Because of the Pentons’ considerable property holdings, the chancellor appointed a special master, Collette Oldmixon, to inventory their assets and debts, obtain appraisals, and perform other directives ordered by the court in order to aid in the equitable distribution of the property.

¶ 3. In September 2007, a trial was held. Both parties agreed to withdraw the fault grounds for divorce and instead proceed on irreconcilable differences. As all three of the Pentons’ children were over the age of twenty-one at this time, the only remaining issues were alimony and property division. The special master’s voluminous and detailed report, containing numerous property appraisals, bank statements, and other financial documents, in addition to her distribution recommendations, was entered into evidence. The special master also testified regarding the Pentons’ finances and property, as did Annette and Bruce.

¶ 4. On September 28, 2007, the chancellor entered a judgment, granting a divorce based on irreconcilable differences. No alimony was awarded as both parties support themselves. The chancellor found the marital property had a total value of $635,718, which, when divided in half, entitled each party to $317,859 in marital assets. However, the special master had reported her concern regarding the parties’ handling of joint funds following their separation. Therefore, the chancellor found each parties’ share of the marital interest would be subject to the parties’ post-separation surreptitious use of the assets, which the special master had detailed in her report. The chancellor made certain adjustments accordingly.

¶ 5. The chancellor ordered the homestead to be judicially sold, as provided in a sheriffs sale for the execution of judgment, pursuant to Mississippi Code Annotated section 13-3-161 (Rev.2002). Annette was awarded the first $64,039 of its net sale proceeds, after paying any outstanding indebtedness on the property and the costs of the sale. Bruce was to receive the balance to round out the equitable distribution of the marital assets. Further, the couples’ 1992 Harley Davidson motorcycle and 1972 Cam trailer were to be judicially sold, with the proceeds used to pay the administrative court costs of the action, including any unpaid costs of the special master. The parties would divide any remaining funds from this sale equally-

¶ 6. On October 18, 2007, twenty days after the original order, the chancellor entered a brief two-page order of clarification concerning his instructions to the clerk of the court in carrying out the judicial sale of the property. In the original order, the chancellor had stated that Annette would receive the first $64,089 from the net sale proceeds of the home after paying outstanding indebtedness, and then he went on to detail various awards of personal property, including the judicial sale of the motorcycle and trailer. He then instructed the clerk of the court to direct the sale of the homestead and personalty, and “[a]ny funds remaining after the costs of sale and payment to the Special Master shall be paid equally to Plaintiff and Defendant.” In the order of clarification, the chancellor directed the clerk to distribute the proceeds from the judicial sale of the homestead by paying Annette the first $64,039 net proceeds after paying outstanding indebtedness, with any remaining funds paid to Bruce. He further clarified that the clerk was to divide equally only the proceeds from the sale of the motorcycle and trailer.

¶ 7. Bruce filed a notice of appeal on November 16, 2007, forty-nine days after the entry of the original judgment. He included in the record a report and accounting to the chancery court, filed in December 2007, which stated the cash received from the sale of the marital homestead was $6,000, excluding its debt, and the amount received from the sale of the trailer and motorcycle was $551 and $6,600, respectively. On appeal, Bruce raises six issues wherein he claims the chancery court erred in the distribution of marital property. Annette, however, challenges Bruce’s entitlement to appeal.

Jurisdiction

¶ 8. “ ‘Jurisdiction’ is a broad term, and .... [generally speaking, it means the power or authority of a court to hear and decide a case” on the merits. Fitch v. Valentine, 946 So.2d 780, 783 (¶ 10) (Miss.2007) (citing Penrod Drilling Co. v. Bounds, 433 So.2d 916, 922 (Miss.1983)). Annette notes that while the chancery court entered its judgment on September 28, 2007, Bruce did not file his notice of appeal until November 16, 2007. Annette therefore claims the appeal should be dismissed because it was filed beyond the thirty-day deadline provided in Mississippi Rule of Appellate Procedure 4(a). Alternatively, she argues that if Bruce were appealing from the order of clarification, which was filed October 18, 2007, Bruce’s notice of appeal is timely but it is limited to the two items discussed in that order: the judicial sale of the home and personal property. However, Annette cited no authority for her jurisdictional contentions regarding the specifics of the timing of this case, and Bruce did not file a rebuttal brief or cite to any authority in his original brief in support of jurisdiction. It is incumbent upon this Court to assure that jurisdiction exists. We, therefore, requested supplemental briefing from the parties as to the jurisdictional issue.

¶ 9. We note the chancellor filed his order of clarification sua sponte; the parties had not filed any motion to alter or amend the judgment pursuant to Mississippi Rule of Civil Procedure 59(e). Amendments to a judgment by the court on its own initiative must usually be made no later than ten days after the entry of the judgment. Mississippi Rule of Civil Procedure 52(b) provides that a court’s sua sponte amendment to findings and corresponding judgments must be made within ten days after entry of judgment; further, Mississippi Rule of Civil Procedure Rule 59(d) requires the court’s sua sponte order for new trial be made within ten days after entry of judgment. However, Mississippi Rule of Civil Procedure 60(a) has an open-ended time in which a court may, on its own initiative, correct clerical mistakes arising from oversights or omissions; the rule provides that such errors may be corrected at any time “up until the time the record is transmitted by the clerk of the trial court to the appellate court.” Accordingly, a material, substantive amendment to the original judgment must be made by the court within ten days of the original entry of judgment, as only clerical errors come under the ambit of Rule 60(a).

¶ 10. In analyzing our rules of civil and appellate procedure, we note that the rules do not address what effect a sua sponte modification of judgment has on the time for filing a notice of appeal. Mississippi Rule of Appellate Procedure 4(a) states a notice of appeal must be filed within thirty days of the entry of judgment. The chancellor entered the order of clarification on October 18, 2007, twenty days after the original judgment was entered September 28, 2007, and Bruce filed his notice of appeal on November 16, 2007, nineteen days after the order of clarification, and forty-nine days after the original judgment.

¶ 11. Federal courts have long held that “only when the lower court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken ... begin to run anew.” Rezzonico v. H & R Block, Inc., 182 F.3d 144, 150 (2d Cir.1999) (quoting FTC v. Minneapolis-Honeywell Regulator Co., 844 U.S. 206, 211-12, 73 S.Ct. 245, 97 L.Ed. 245 (1952)). Thus, if the second judgment is identical to the first but corrects only technical errors, this does not constitute a substantive change and does not restart the time for filing a notice of appeal. Farkas v. Rumore, 101 F.3d 20, 22 (2d Cir.1996) (citing FTC, 344 U.S. at 211, 73 S.Ct. 245).

¶ 12. Rezzonico is instructive on what does or does not constitute a “substantial change.” In Rezzonico, the plaintiffs appealed from a district court’s judgment granting a defendant’s motion for summary judgment. The judgment was entered on November 26, 1997, however, mistakenly omitting the word “not.” Therefore, six days after the original judgment, on December 1, 1997, the district court entered an amended judgment sua sponte, adding the omitted word. Rezzonico, 182 F.3d at 147. On December 15, 1997, the plaintiffs filed a motion for reconsideration, which was denied as untimely in an order entered on December 17, 1997. The plaintiffs filed a notice of appeal on January 13, 1998. Id. at 148. The Rezzonico court held that since omission of the word “not” in the original opinion, while admittedly changing the meaning of the sentence, did not substantively affect the plaintiffs liability. Therefore, the filing of the amended judgment did not restart the plaintiffs’ time to appeal. Id. at 151. The case was dismissed for lack of jurisdiction. Id. at 152.

¶ 13. In the instant case, the order of clarification did not make any substantive change to the original order. The chancellor reiterated his original judgment: that Annette would receive the first $64,039 from the net proceeds less any indebtedness and fees, and Bruce would receive the remainder. The chancellor was clarifying his instructions to the clerk regarding the judicial sale; he was not modifying the rights of the parties in any manner. He was, in fact, clarifying a technical error and making the instructions to the clerk correspond to the division of property already ordered. Under Rezzon- ico, this clarification would not constitute a substantial change and, thus, begin anew the time to file an appeal.

¶ 14. Since the timing of the entry of the order of clarification still left Bruce time to file his notice of appeal within thirty days of the original judgment, even though he did not, this situation appears to be a matter of first impression in Mississippi. Accordingly, we look to other jurisdictions for direction. Federal appellate courts have considered whether a late notice of appeal can be considered as a motion for an extension of time to appeal.

¶ 15. Mississippi Rule of Appellate Procedure 4(g) controls whether the trial court may extend the time for filing a notice of appeal. It states: “The trial court may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time otherwise prescribed by this rule”; in other words, he had sixty days from the entry of the final judgment. Rule 4(g) also states, “[a]ny such motion which is filed before expiration of the prescribed time may be granted for good cause....” Here, the order of clarification was within the sixty-day deadline for Bruce to file a motion for an extension of time; however, Bruce did not file any such motion.

¶ 16. Mississippi’s Rule 4(g) is patterned after Federal Rule of Appellate Procedure 4(a)(5). M.R.A.P. 4(g) cmt. The federal rule was amended in 1979, after which federal courts are less likely to treat a notice of appeal as a motion for an extension of time. See generally, William B. Johnson, Annotation, Untimely Notice of Appeal as Motion for Extension of Time to Appeal under Rule 1(a)(5) of Federal Rules of Appellate Procedure, 74 A.L.R. Fed. 775 (1985). Instead, the amended federal Rule 4(a)(5) requires a motion for any extension of time. In Campbell v. White, 721 F.2d 644, 645—46 (8th Cir.1988), the United States Court of Appeals for the Eighth Circuit held that a late-filed notice of appeal may not be considered a motion for extension of time under the amended Rule 4(a)(5); an actual motion for an extension of time must be filed. Darron Campbell was appealing the district court’s dismissal of his suit brought under 42 U.S.C. section 1983. His notice of appeal was received by the court thirty-two days after the entry of judgment. Id. at 645. The Campbell court explained that before the 1979 amendment, under Rule 4(a)(5), any kind of filing may be treated as a motion for extension, whereby the case would be remanded in order for the district court to decide if excusable neglect was established and an extension later granted. However, the Campbell court found the 1979 amendments to the rule were unambiguous and required a filing of a motion with service of the notice of appeal. Id. at 646. Thus, Campbell’s appeal was dismissed. Id. at 647.

¶ 17. Following the federal interpretation, Bruce’s notice of appeal is not sufficient to be treated as a motion for an extension of time. We did locate one state court decision, procedurally similar to the case before us, wherein the untimely notice of appeal was treated as a motion for extension of time. In L.L.N. v. Department of Children & Families, 840 So.2d 1172, 1172 (Fla.Dist.Ct.App.2003), the trial court amended its order sua sponte; however, the court was without jurisdiction to do so because a timely motion for rehearing had not been filed. Thus, the time for appeal had not been extended by the amended order. The appellant filed her notice of appeal approximately eighteen days after it was due. The court in L.L.N. treated the late notice as a motion for extension of time only because of the unique circumstances of the case concerning the termination of parental rights. Under Florida law, termination cases are entitled to take a “belated appeal.” Id.; see also In re E.H., 609 So.2d 1289, 1290-91 (Fla.1992) (setting forth the procedure for obtaining belated appeal in termination cases). The case before us has no unique circumstances such as were present in L.L.N.

¶ 18. In Busby v. Anderson, 978 So.2d 687, 638 (¶ 5) (Miss.2008), this Court remanded a case to have the trial court rule on an unresolved motion for an extension of time filed in the trial court. The plaintiff had filed a post-judgment motion, and the trial court did not rule on it for nearly three years after the hearing, when it was overruled. The trial court’s order was not filed until approximately a week after the court’s ruling. Id. at 638 (¶ 3). The plaintiff filed a motion for an extension of time to file a notice of appeal within thirty days of the order, but no order appeared in the record granting the motion. She then filed an untimely notice of appeal. Id. at (¶ 4). We remanded the case to the trial court to rule on the outstanding motion. The trial court granted the motion, and we proceeded with the merits of the appeal. Id. at (¶ 5). On writ of certiorari, the supreme court found that this Court improperly asserted jurisdiction to hear the appeal once the trial court had resolved the plaintiffs motion for an extension of time on remand, as the plaintiff had failed to file a timely notice of appeal. Id. at 638-40 (¶¶ 5, 11-12). We find that since we have no authority under Busby to remand a case for the trial court to rule on an outstanding motion extension of time, we certainly have no authority to remand a case for the trial court to rule on whether a notice of appeal should be treated as a motion for extension of time. We must, therefore, dismiss the case for lack of jurisdiction.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS AND MAXWELL, JJ„ CONCUR.

      . Had either of the parties filed a proper Rule 59(e) motion to amend the judgment, there is no question that Bruce’s appeal would be timely, as pursuant to Mississippi Rule of Appellate Procedure 4(d), the time for appeal does not begin to run until the court rules on the last such motion. A tolling motion "stays the judgment and relates back, for all purposes resetting the appeals clock to the moment that judgment was entered and holding it there pending the motion.” Bruce v. Bruce, 587 So.2d 898, 901 (Miss.1991).

      . Motions for relief under Rule 52 and 59 must also be filed within the same ten-day period. See M.R.C.P. 52(b) and 59(e).

      . The current Federal Rules of Appellate Procedure differ in some respects to our Mississippi Rules of Appellate Procedure regarding the timing of the notice of appeal and post-trial tolling motions, but the differences are not pertinent to the issue before us. The comment to Mississippi Rule of Appellate Procedure 4 states that Federal Rule of Appellate Procedure 4(a)(4) requires that, "if a party wishes to appeal from the disposition of a post trial tolling motion, the party must amend the notice [of appeal] to so indicate,” whereas the corresponding Mississippi rule does not require an amended notice in this instance. M.R.A.P. 4 cmt. In the instant case, no tolling motion was filed.

      .Federal courts have held that "where a judgment is reentered, and the subsequent judgment does not alter the substantive rights affected by the first judgment, the time for appeal runs from the first judgment." In re Am. Safety Indem. Co., 502 F.3d 70, 72 (2d Cir.2007) (quoting Farkas v. Rumore, 101 F.3d 20, 23 (2d Cir.1996)); see, e.g., United States v. Lewis, 921 F.2d 563, 565 (5th Cir.1991) (reentry of order had no effect on running of time limit to appeal in criminal case, where amended judgment was merely correction of year in date); First Nationwide Bank v. Summer House Joint Venture, 902 F.2d 1197, 1200 (5th Cir.1990) (reentered order reflecting minor spelling change in party's name did not affect running of time for filing motion under Fed.R.Civ.P. 59(e)); Offshore Prod. Contractors, Inc. v. Republic Underwriters Ins. Co., 910 F.2d 224, 229 (5th Cir.1990) (reentry of judgment did not in any way alter or amend substantive rights of parties; thus, the time to pursue an appeal was not impacted).

        State courts have held similarly. See, e.g., Hansen v. Kik, 142 P.3d 558, 559-60 (Utah Ct.App.2006) (appeal found untimely as trial court’s modifications did not change substance or character of the judgment); Maxfly Aviation, Inc. v. Capital Airlines, Ltd., 843 So.2d 973, 975 (Fla.Dist.Ct.App.2003) (appeal untimely and dismissed as additions the trial court made to judgment did not disturb or revise legal rights and obligations); Poe v. Haw. Labor Relations Bd., 98 Hawai'i 416, 49 P.3d 382, 384-85 (Haw.2002) (when judgment was amended twice, timing for appeal measured from first amended judgment because it materially altered rights of initial judgment, while second amended judgment did not because it merely corrected clerical error); CC-Califomia Plaza Assocs. v. Paller & Goldstein, 51 Cal.App.4th 1042, 59 Cal.Rptr.2d 382, 385 (1996) (effect of amended judgment on appeal time depends on whether amendment substantially changes judgment or simply corrects clerical error; here error in identity of losing party deemed substantial change thus started new time for appeal); Meyer v. Meyer, 228 A.D.2d 955, 957, 645 N.Y.S.2d 105 (N.Y.App.Div.1996) (appeal untimely and dismissed as purpose of amended judgment was to accurately reflect original determination); Dickens v. Lee, 230 Cal.App.3d 985, 281 Cal.Rptr. 783, 784 (1991) (notice of appeal filed over sixty days after entry of initial judgment was found to be timely as amended judgment substantially modified the initial judgment).

      . In the original order, the italicized word "not” was omitted from the following portion: "Upon review, the Court finds Block is entitled to an additional award of $237,324. Under the contracts at issue, the Rezzonicos are not entitled to take advantage of the discount royalty rate otherwise afforded franchisees who are not in breach of their franchise agreement.” Rezzonico, 182 F.3d at 147 (emphasis added).

        . Additionally, Bruce had less reason to appeal the order after the amendment as the clarified instructions to the clerk were to his benefit.

      . Prior to the 1979 amendment, federal Rule 4(a)(5) did not require a motion to be filed unless the time for taking the appeal had already expired.


author: LEE, P.J.,

text:
    Allan J. TEW, Appellant v. SIEMENS POWER TRANSMISSION and Liberty Mutual Insurance Co., Appellees.
    No. 2009-WC-01150-COA.
    Court of Appeals of Mississippi.
    Nov. 16, 2010.
    Rehearing Denied March 29, 2011.

      Gilson Davis Peterson, attorney for appellant.
    William Bienville Skipper, attorney for appellees.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   LEE, P.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Allan J. Tew was injured on May 18, 2005, while working on a three-phase regulator at the Siemens Power Transmission plant. Tew subsequently filed a petition to controvert with the Mississippi Workers’ Compensation Commission claiming to have sustained a loss of wage-earning capacity due to his injuries. Siemens and its insurance carrier, Liberty Mutual, admitted the existence of Tow’s work-related injuries and paid some temporary disability benefits and for his medical treatment.

¶ 2. After a hearing on June 23, 2008, the administrative judge (AJ) awarded permanent partial disability benefits to Tew in the amount of $288.12 per week for 450 weeks. Siemens then appealed to the Commission. The Commission also found that Tew sustained a loss of wage-earning capacity and was entitled to permanent partial disability benefits. However, the Commission determined that the AJ had miscalculated the post-injury wages and reduced the amount from $288.12 each week to $74.54 per week for 450 weeks. The Rankin County Circuit Court affirmed the Commission’s decision.

¶ 3. Tew appealed, and the case was assigned to this Court. Tew subsequently filed a motion to stay the appeal and remand back to the Commission for further consideration. This Court granted Tew’s motion on October 9, 2009. The Commission heard arguments and allowed the introduction of additional evidence; however, the initial award of $74.54 per week for 450 weeks remained unchanged. Tew appeals again, asserting the following issues: (1) the trial court failed to apply the proper standard of review; (2) the trial court erred in finding that the Commission’s decision was supported by substantial evidence and was not arbitrary and capricious; and (3) the trial court failed to find that the Commission’s decision was contrary to established law. Although Tew states three issues for our review, his issues are more appropriately stated as follows: Whether the Commission’s decision to reduce the AJ’s award was supported by substantial evidence and was not contrary to law. Finding no error, we affirm.

FACTS

¶ 4. At the time of .his injury, in May 2005, Tew was forty-six years old and had been employed with Siemens since 1989. Tew had no formal education after graduating from high school. Following the accident, Tew was treated by Dr. Lewis Harkey, a neurosurgeon, who performed surgery to correct a broken vertebrae. Tew was also treated by Dr. Charles Sec-rest, a urologist, who performed surgery on his bladder. Tew continues to have bladder issues. Tew was referred to Dr. Michael Winkelmann who specializes in physical medicine and rehabilitation. Dr. Winkelmann treated Tew and eventually released him with a forty percent permanent partial impairment rating to his body as a whole. Dr. Winkelmann restricted Tew to working light/medium duty with a lifting limit of forty pounds occasionally.

¶ 5. Tew returned to work at Siemens, but in a different capacity. Tew and Siemens stipulated that Tew’s current job with Siemens is a regularly staffed position and was not created for Tew out of sympathy. Prior to his injury, Tew earned an hourly wage of $16.49 plus overtime. The parties stipulated that Tew’s average weekly wage was $1,152.96. At the time of the hearing before the AJ, Tew was earning $18.02 per hour. The Commission found Tew’s post-injury weekly wage to be $1,041.15. There was testimony that although Tew’s hourly wage was greater post-injury, his weekly wage post-injury was less due to Siemen’s decision to cut overtime hours company wide.

¶ 6. Kathy Smith, a vocational rehabilitation expert, was retained to determine if Tew would be able to find employment elsewhere if he were not currently employed by Siemens. Smith determined that based upon Tew’s academic functioning and physical restrictions, he would be expected to earn between $6.81 and $9.43 per hour. Smith based this determination on several available employment positions. None of these sample positions included work similar to Tew’s current job at Siemens. Smith admitted that Tew’s current job with Siemens was within the restrictions assigned by Dr. Winkelmann.

¶ 7. During the hearing before the Commission on remand, Tew argued that his post-injury average weekly wage had been reduced as of October 15, 2009, to $755.11, compared to $1,041.15 which the Commission considered in its original order on February 2, 2009. The Commission found that the reduction in Tew’s hours was due to economic conditions and proved to be temporary in nature, only halting production at the plant for seven days.

STANDARD OF REVIEW

¶ 8. The standard of review in workers’ compensation cases is well established. The decision of the Commission will be reversed only if it is not supported by substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law. Weatherspoon v. Croft Metals, Inc., 853 So.2d 776, 778 (¶ 6) (Miss.2003) (citing Smith v. Jackson Constr. Co., 607 So.2d 1119, 1124 (Miss.1992)). We will exercise de novo review on matters of law. KLLM, Inc. v. Fowler, 589 So.2d 670, 675 (Miss.1991).

DISCUSSION

¶ 9. Tew’s argument on appeal is that the Commission erred in reducing the AJ’s initial award of $288.12 per week for 450 weeks. Specifically, Tew contends that the Commission erred in determining his loss of wage-earning capacity by using the difference between his pre-injury wages and his post-injury wages.

¶ 10. According to Mississippi Code Annotated section 71—3—17(c)(25) (Rev.2000), in determining Tew’s permanent partial disability compensation, “compensation shall be sixty-six and two-thirds percent (66-2/3%) of the difference between his average weekly wages, subject to the maximum limitations as to weekly benefits as set up in this chapter, and his wage-earning capacity thereafter in the same employment or otherwise....” A decision regarding the loss of wage-earning capacity is “largely factual and is to be left ... to the discretion and estimate of the Commission.” Bryan Foods, Inc. v. White, 913 So.2d 1003, 1010 (¶ 28) (Miss.Ct.App.2005).

¶ 11. The Commission’s objective in determining post-injury earning capacity is to “determine the wage that would have been paid in the open labor market under normal employment conditions to claimant as injured.” Karr v. Armstrong Tire & Rubber Co., 216 Miss. 132, 139, 61 So.2d 789, 792 (1953). There are a number of factors the Commission should use to aid it in determining wage-earning capacity. The factors are:

(1)’an increase in general wage levels, (2) increased maturity or training, (3) longer hours worked, (4) sympathy wages, (5) temporary and unpredictable character of post-injury earnings, (6) employee’s inability to work, (7) employee’s failure to be hired elsewhere, and (8) the continuance of pain and other related circumstances.

Richards v. Harrah’s Entm’t, Inc., 881 So.2d 329, 332 (¶ 7) (Miss.Ct.App.2004). “The determination must be made by evaluating the evidence as a whole.” Id. In Karr, the supreme court held that the determination of earning capacity should be made “on the strength not only of actual post-injury earnings but of any other available clues.” Karr, 216 Miss. at 138, 61 So.2d at 792. Although not listed specifically in Richards, it is clear that actual post-injury wages are a factor to be considered. See Nissan N. Am. v. Short, 942 So.2d 276, 280 (¶ 15) (Miss.Ct.App.2006).

¶ 12. It is clear from the Commission’s orders that, although it found the AJ’s calculation of Tew’s post-wage earning capacity to be in error, it adopted the AJ’s analysis. The AJ considered the evidence as a whole, including Tew’s age, education, work history, medical testimony, physical impairment, and current work status. In its order dated January 6, 2010, the Commission noted that, in its original order, its intent was to view Tew’s post-injury wage earnings “as indicative of, and a reliable measure of, his post-injury earning capacity.” The Commission refused to further modify Tew’s initial award because Tew had failed to prove that he was earning less than was shown at the initial hearing as the result of his injury. As mentioned previously, Tew experienced a temporary reduction in hours as a result of economic conditions at Siemens.

¶ 13. After considering the evidence and the entire record, we find that the Commission’s decision to award permanent partial disability benefits of $74.54 for 450 weeks was supported by substantial evidence. Accordingly, we affirm the judgment of the trial court, which affirmed the Commission’s decision.

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

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. MAXWELL, J., NOT PARTICIPATING.


author: CARLTON, J.,

text:
    TELLUS OPERATING GROUP, LLC, Appellant v. MAXWELL ENERGY, INC., Appellee.
    No. 2012-CA-00357-COA.
    Court of Appeals of Mississippi.
    April 8, 2014.

      Glenn Gates Taylor, Christy Michelle Sparks, Ridgeland, attorneys for appellant.
    Malcolm T. Rogers, Monticello, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

CARLTON, J.,

for the Court:

¶ 1. The motion for rehearing is granted. This Court’s original opinion is withdrawn, and this opinion is substituted in lieu thereof. This case involves our appellate judicial review of an administrative executive board decision to determine if the Mississippi State Oil and State Oil and Gas Board (Board) decision is supported by substantial evidence.

¶2. Maxwell Energy Inc. (Maxwell) filed an appeal in the Jefferson Davis County Chancery Court of an order of the Board that allowed the operator of a proposed oil and gas well, Tellus Operating Group LLC (Tellus), to charge statutory “alternate charges” to each “nonconsenting owner” of drilling rights, Maxwell included, who did not timely agree in writing to exercise one of its statutory options to participate in drilling a proposed unit well in search of oil and gas. The chancery court reversed the Board’s order, finding that the Board’s decision that Tellus offered Maxwell reasonable terms was unsupported by substantial evidence, and that Maxwell had in fact agreed in writing to participate in the drilling of the well.

¶ 3. The current procedural posture before this Court reflects that Tellus then appealed, raising the following issues: (1) whether the Board’s finding that Tellus satisfied the statutory requirements for the “force integration” of Maxwell’s interest with alternate charges by offering reasonable terms is supported by substantial evidence, and (2) whether the Board correctly rejected Maxwell’s argument that Maxwell could avoid alternate charges by simply sending Tellus a check for its share of the costs to drill the well, rather than agreeing in writing to the reasonable terms that are required by statute. Tellus alleges that because substantial evidence existed to support the Board’s order, this Court should reverse the decision of the chancery court and reinstate the Board’s order.

¶ 4. We acknowledge that the procedural history of this matter before the Board reflects that in September 2006, Tellus filed a petition with the Board to form a drilling unit to drill a new well, the Chianti Well No. 1 (Chianti Well), in Jefferson Davis County, Mississippi. Maxwell owned drilling rights involved with the drilling and operation of the well and drilling unit at issue, but Maxwell gave no consent to Tellus to drill or operate a well involving its interests and drilling rights. Tellus then asked the Board to form the drilling unit pursuant to Mississippi’s force-integration statute, Mississippi Code Annotated section 53-3-7 (Rev.2003). Tellus also requested the Board to authorize Tellus to charge each nonconsenting owner the alternate charges that are allowed by subsection (2) of section 53-3-7. At the time Tellus filed its petition, the record reflects that the owners of approximately ninety-six percent of the drilling rights in the proposed drilling unit had agreed in writing to lease, to farm out, or to participate in the Chianti Well. However, Maxwell constituted a working-interest owner who had not agreed.

¶ 5. The Board found that Tellus offered Maxwell reasonable terms. However, upon Maxwell’s appeal of the Board’s decision, the chancellor disagreed, finding the terms unreasonable and reversing the decision of the Board. Upon finding that the chancellor applied an erroneous standard of review, thereby resulting in an arbitrary decision, we find error in the chancery court’s judgment, and we reverse and render. See Tex. Pac. Oil Co. v. Petro Grande, Inc., 328 So.2d 660, 663 (Miss.1976) (appellate court will affirm where the Board’s decision is supported by substantial evidence).

FACTS

¶ 6. On September 15, 2006, Tellus filed a petition with the Board to “force integrate, with alternate charges, a drilling unit for a proposed gas well, approve an exception well and an exception location, and grant related relief[.]” Tellus asked the Board to form the unit by force integrating all owners and interests, charging each nonconsenting owner of drilling rights in the unit the “alternate charges” allowed by Mississippi Code Annotated section 53-3-7(2).

¶ 7. As required before assessing alternate charges against a nonconsenting owner, and before Tellus filed its petition with the Board; Tellus notified Maxwell by letter of the information required by section 53-3-7(2)(a) and offered the three following statutory options that are prescribed by section 53-3-7(2)(a)(v): a written agreement to lease out on reasonable terms, or to farm out, or to participate in the cost and risk of developing and operating the proposed unit well. The participation offer was for an owner to sign an operating agreement and authority for expenditure (AFE). The operating agreement offered to Maxwell was a standard industry form agreement addressing not only costs chargeable for drilling and operating, but other matters such as liability, royalties, taxes, and such.

¶ 8. Maxwell contested Tellus’s petition to assess alternate charges, and Maxwell took the position that Tellus failed to offer reasonable terms or negotiate in good faith. Maxwell asked that the Board not allow Tellus to charge Maxwell interest with any alternate charges. More specifically, on October 10, 2006, Maxwell filed a notice of contest of Tellus’s petition with the Board, alleging that Tellus failed to negotiate with Maxwell in good faith and asking the Board to remove Maxwell’s interest from any alternate charges.

¶ 9. The Board heard Tellus’s petition at its October 2006 meeting. Tellus presented evidence and two witnesses in support of its petition. D.W. Maxwell, the owner of Maxwell Energy, testified in opposition, but he did not offer any exhibits into evidence, nor did he call any other witnesses. Following the hearing, the Board entered an order on November 1, 2006, which granted Tellus’s petition and determined that the evidence presented at the hearing established that Tellus satisfied all of the statutory requirements of section 53-3-7(2) to force integrate the unit and to allow Tellus to charge Maxwell and any other nonconsenting owners with statutory alternate charges recoverable out of production, if any. The order concluded by stating:

Each non-consenting owner shall be afforded the opportunity to participate in the development and operation of the [w]ell in the pooled unit as to all or any part of said owner’s interest on the same cost basis as the consenting owners by agreeing in writing to pay that part of the costs of such development and operation chargeable to said non-consenting owner’s interest, or to enter into such other written agreement with the operator as the parties may contract, provided such acceptance in writing is filed with the Board within twenty (20) days after this [o]rder is filed for record with the Board.

(Emphasis added). The order included the statutory language required by section 53-3-7(2)(g), providing that Maxwell possessed twenty days after the Board’s order was entered in which to accept and agree in writing to one of the three statutory offers by Tellus, or enter into “such other written agreement with [Tellus] as the parties may contract.”

¶ 10. The record reflects Maxwell failed to accept or agree in writing to any of the three statutory options offered and entered into no other written agreement with Tellus. By letter dated November 14, 2006, Maxwell instead notified Tellus, and also the Board, of its agreement to voluntarily integrate its interest in the unit and to participate and join in the costs of the development, to the extent of Maxwell’s own calculation of its estimated proportional share of the all the associated costs. Specifically, the letter stated:

[Maxwell] hereby agrees in writing to voluntarily integrate all of its interests in the unit ... [and] hereby elects in writing to participate and join in on the same cost basis as the other consenting owners for its share of the cost and risk of developing and operating of the ... unit ... insofar and only insofar as the same relates to Maxwell’s leasehold interest covering mineral interests which are subject to alternate risk charges, and hereby agrees in writing to pay its pro rata share of all the costs associated therewith.

Maxwell sent a check to Tellus in the amount of $18,277.94 along with the above described letter that explained that the check was for payment of Maxwell’s “proportionate share of the dry hole costs for the drilling of the ... well.” The letter stated that Maxwell also agreed

to advance its share of completion costs upon election by Tellus or its affiliates to set casing for a completion attempt and by notifying Maxwell in writing of such election and request for payment of completion costs for Maxwell’s share of such costs.

¶ 11. In response, Tellus returned the check to Maxwell with a November 21, 2006 letter. In the letter, Tellus notified Maxwell that the letter and check were insufficient and nonbinding, and failed to constitute compliance with the Board’s decision and that to be deemed a consenting owner, Maxwell needed to sign, date, and return the documents previously submitted to Maxwell: the joint operating agreement and the authority for expenditure. Clearly, Maxwell failed to accept Tellus’s offer. Moreover, Maxwell’s counteroffer failed contain or address the various issues and provisions set forth in the standard form operating agreement provided to it by Tel-lus. Thq record reflects that Tellus gave no consent to the terms offered by Maxwell.

¶ 12. On December 27, 2006, Maxwell appealed the Board’s order to the Jefferson Davis County Chancery Court. The chancery court reversed the Board’s order, finding that the terms that Tellus offered to Maxwell were not reasonable terms and that Maxwell had agreed to participate in the drilling of the well. However, in so doing, the chancellor utilized an erroneous standard of review. We find that the chancellor should have reviewed whether the Board’s decision was supported by substantial evidence, instead of rendering its own de novo decision as to the reasonableness of the terras offered to Maxwell by Tellus. See Boyles v. Miss. State Oil & Gas Bd., 794 So.2d 149, 152 (¶ 6) (Miss.2001).

STANDARD OF REVIEW

¶ 13. This Court employs a well-settled standard when reviewing a decision of the Board. The Board’s order will only be reversed where the decision is (1) beyond the Board’s legal power, (2) violates some statutory or constitutional right of the complaining party, (3) is arbitrary and capricious, or (4) is not supported by substantial evidence. Id.

DISCUSSION

A. Whether the Board’s finding that Tellus offered Maxwell reasonable terms is supported by substantial evidence.

B. Whether Maxwell’s argument that it agreed in writing to participate in the drilling of the well is based on an incorrect interpretation and application of the statute.

¶ 14. As acknowledged, Tellus seeks a reversal of the chancery court’s decision and a reinstatement of the order of the Board. Tellus asserts that the Board’s order is supported by substantial evidence, and Maxwell failed to timely (or at all) agree to exercise one of its statutory options, including failing to agree in writing to the terms offered by Tellus that the Board found to be reasonable terms. Tellus contends that the evidence clearly established that it satisfied all of the statutory requirements for the force integration, thus allowing Tellus to charge Maxwell the statutory alternate charges for the cost of production applicable to Maxwell as a nonconsenting owner. Additionally, Tellus argues that Maxwell’s assertion that Maxwell agreed in writing to the terms Tellus offered is based on Maxwell’s erroneous interpretation of the alternate-charges provision of the force-integration statute. Tellus contends that such an interpretation conflicts with precedent, as well as the Board’s past interpretations and applications of the statute. Tellus argues that such erroneous interpretation undermines the overall legislative purpose of the statute, and Tellus asserts that the Board’s decision is supported by substantial evidence. Upon appellate review, and as previously acknowledged herein, we find that the decision of the Board is supported by substantial evidence in the record, and that the chancellor applied an erroneous standard when reviewing the decision of the Board. See Boyles, 794 So.2d at 152 (¶ 6).

¶ 15. As acknowledged, “the term ‘nonconsenting owner’ shall mean an owner of drilling rights which the owner has not agreed, in writing, to integrate in the drilling unit.” Miss.Code Ann. § 53-3-7(l)(c). In the context of Mississippi’s statutory scheme of “force integration” of drilling rights into operating units, such owners are subject to imposition of “alternate charges” or risk penalties. Miss. Code Ann. § 53-3-7(2). The statutory alternate charges, or nonconsent penalties, are “designed to ensure that nonparticipating owners do not benefit from the successful outcome of risks they do not take.” Waller Bros., Inc. v. Exxon Corp., 836 F.Supp. 363, 371 (S.D.Miss.1993). Without the statutory alternate charges, noncon-senting owners of drilling rights included in a producing well would benefit from that revenue without participating in the costs, liability, or other risks involved.

¶ 16. Section 53-3-7(2)(a) states:

In the event that one or more owners owning not less than thirty-three percent (33%) of the drilling rights in a drilling unit voluntarily consent to the drilling of a unit well thereon, and the operator has made a good faith effort to (i) negotiate with each nonconsenting owner to have said owner’s interest voluntarily integrated into the unit, (ii) notify each nonconsenting owner of the names of all owners of drilling rights who have agreed to integrate any interests in the unit, (iii) ascertain the address of each nonconsenting owner, (iv) give each nonconsenting owner written notice of the proposed operation, specifying the work to be performed, the location, proposed depth, objective formation and the estimated cost of the proposed operation, and (v) offer each nonconsenting owner the opportunity to lease or farm out on reasonable terms or to participate in the-cost and risk of developing and operating the unit well involved on reasonable terms, by agreeing in writing, then the operator may petition the board to allow it to charge alternate charges (alternate to and in lieu of the charges provided for in subsection (1)(b) of this section).

(Emphasis added). As shown, this section prescribes three statutory options that operators can offer to nonconsenting owners before petitioning the Board to allow the operator to charge alternative charges: (1) a written agreement to lease, or (2) farm out, or (3) participate in the cost and risk of developing and operating the proposed unit well. See Miss.Code Ann. § 53-3-7(2)(a)(v). If the operator fails to enter into an agreement with an owner, the operator may then petition the Board to form the proposed drilling unit, permit the proposed well, and allow the recovery of alternate charges out of each nonconsenting owner’s share of the production. Id. The Board then holds a hearing to determine if the operator has offered to the noncon-senting owner the three statutory options on reasonable terms. Id. If the Board finds that the operator has complied with the statute, the Board enters an order to that effect. Id. Section 53-3-7(2)(g) provides that the nonconsenting owner possesses twenty days after the Board’s order is entered to accept and agree in writing to one of the three statutory options offered, or to “enter into such other written agreement with the operator as the parties may contract.”

¶ 17. As acknowledged, after Tel-lus and Maxwell failed to reach an agreement, Tellus petitioned the Board to form the proposed drilling unit. Maxwell argues that it appeared at the hearing before the Board on October 18, 2006, and then it agreed in writing on November 14, 2006, within twenty days of the Board’s November 1, 2006 order, to integrate its interest in the drilling unit voluntarily and to “join in on the same cost basis as the other consenting owners for its share of the cost and risk of developing and operating of the ... unit.” Maxwell also submits that it tendered a check to Tellus in the amount of $18,277.94 for its proportionate share of the dry-hole costs for drilling the well and agreed in writing to advance its share of the completion costs to Tellus. The record reflects that Maxwell’s response failed to constitute an acceptance of one of the three statutory options offered, and Maxwell’s letter and check offering to pay its pro rata costs of drilling the hole for the well failed to constitute an agreement in accordance with section 53—3—7(2)(g)-

¶ 18. Under section 53-3-7(2)(g), Maxwell possessed twenty days after the Board’s order was entered to accept and agree in writing to one of the three statutory options offered, or enter into “such other written agreement with [Tellus] as the parties may contract.” See Miss.Code Ann. 53-3-7(2)(g). The record reflects, however, the Maxwell failed to accept and agree in writing to any of the three statutory options offered by Tellus, nor did it enter into any other written agreement with Tellus. Instead, the record reflects that Maxwell unilaterally tendered a letter to the Board and to Tellus offering new terms: to voluntarily integrate all of its interests in the unit; to participate and join in on the same cost basis as the other consenting owners for its share of the cost and risk of developing and operating the unit. See generally Prudential Ins. Co. of Am. v. Stewart, 969 So.2d 17, 22 (¶ 17) (Miss.2007) (discussing counteroffer and acceptance of contract). Tellus never agreed to the terms prepared by Maxwell in his letter. Maxwell also failed to sign the participation agreement sent by Tellus, and thus Maxwell failed to voluntarily agree to integrate its interests, develop the lands as a drilling unit, and join in the proposed unit for the well. The record supports the Board’s finding that Maxwell therefore failed to comply with the statutory requirements to become a consenting owner. Miss.Code Ann. § 53—3—7(1)(a).

¶ 19. In examining section 53-3-7(2), we find no fourth option exists wherein an owner can become a consenting owner, and thereby avoid alternate charges, by simply unilaterally tendering an offer of new terms, or counteroffer, that gain no acceptance from the operator. Moreover, an application of contract law to this case reflects that no agreement or binding contract was formed since the offeree failed to accept the terms of the offeror. See Vice v. Hinton, 811 So.2d 335, 338 (¶ 12) (Miss.Ct.App.2001). As a result, Maxwell’s letter and check tendered to Tellus fail to constitute an acceptance of any of the three statutory options Tellus offered. Clearly, the letter fails to constitute a written agreement with Tellus, since Tellus did not accept the offer made in the letter. See generally Stewart, 969 So.2d at 22 (¶ 17).

¶ 20. With respect to legislative purpose, Mississippi’s force-integration statute, section 53-3-7, allows for recovery of alternate charges from nonconsenting owners who would otherwise not be liable for costs or risks associated with drilling and operating a well, but would benefit from others’ efforts in extracting oil and gas from their land. Hence, section 53-3-7 establishes legal authority for the formation of a unit to drill an oil and gas well, even though the owners of the drilling rights in the lands that comprise the proposed unit have not entered into a written agreement to form the unit, drill the well, and pay and bear the costs and risks to do so. The statute allows the Board to form a drilling unit by “force integrating” all owners and tracts in the proposed drilling unit. The purpose of the force-integration statute is to foster, encourage, and promote the development, production, and utilization of oil and gas, prevent waste, avoid the drilling of unnecessary wells, provide for a greater ultimate recovery of oil and gas, and protect and enforce the correlative rights of the owners. Miss.Code Ann. §§ 53-1-1, 53-3-5, 53-3-7(1)(a) (Rev.2003).

¶ 21. Upon review of the Board’s decision herein, this Court, like the chancellor below, is limited to determining if substantial evidence supported the Board’s decision finding that the terms offered to Maxwell by Tellus constituted reasonable terms. The chancellor erred, however, by applying an incorrect standard of review, reweighing the evidence, and rendering its own de novo decision of reasonableness, without giving the required deference to the statutory authority of the Board to make such a decision. See Boyles, 794 So.2d at 152 (¶ 6).

¶ 22. After our review, we find substantial evidence in the record to support the Board’s order finding that Tellus offered Maxwell the three prescribed statutory options on reasonable terms, thus satisfying the statutory requirements for force integration. Since Maxwell failed to agree to one of the offered statutory options or enter into another agreement with Tellus, then Tellus is entitled to recover alternate charges from the nonconsenting owner herein, Maxwell. As a result, we reverse the chancellor’s decision and render an order reinstating the judgment of the Board.

¶ 23. THE JUDGMENT OF THE JEFFERSON DAVIS COUNTY CHANCERY COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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

      . Adams v. Miss. State Oil & Gas Bd., 2012-CA-01070-SCT, 139 So.3d 58, 63, 2014 WL 657384, at *3 (¶ 8) (Miss. Feb. 20, 2014) (standard of review).

      . See Miss.Code Ann. § 53-3-119 (Rev.2003) (Any person adversely affected by any rule, regulation, or order made by the state oil and gas board can appeal to the chancery court).

      .Tellus is an independent oil and gas exploration and production company headquartered in Ridgeland, Mississippi. Tellus operates hundreds of oil and gas wells in Mississippi.

      . See Miss.Code Ann. § 53-3-7(1)(c), (2)(a) (Rev.2003).

      . Mississippi Code Annotated section 53-3-7 established the authority of the Board to require pooling as a valid exercise of the state’s police power. Superior Oil Co. v. Foote, 214 Miss. 857, 875-76, 59 So.2d 85, 93 (1952).

      . Section 53-3-7(1)(a) provides:
      When two (2) or more separately owned tracts of land are embraced within an established drilling unit or when there are separately owned interests in all or part of an established drilling unit the persons owning the drilling rights therein and the rights to share in the production therefrom may validly agree to integrate their interests and to develop their lands as a drilling unit. Where, however, such persons have not agreed to integrate their interests the board may, for the prevention of waste or to avoid the drilling of unnecessary wells, require such persons to integrate their interests and to develop their lands as a drilling unit. All orders requiring such pooling shall be made after notice and hearing, and shall be upon terms and conditions that are just and reasonable, and will afford to the owner of each tract the opportunity to recover or receive his just and equitable share of the oil and gas in the pool without unnecessary expense.

      . Section 53—3—7(1)(c) defines nonconsenting owner as "an owner of drilling rights which the owner has not agreed, in writing, to integrate in the drilling unit.”

      . Maxwell owned less than a one percent working interest in the proposed well unit based on oil and gas leases that it acquired.

      . The Board entered a revised order on November 28, 2006, which simply added clarifying language to the original order but did not change any of the findings in the original order.

      . Upon review, an appellate court is not to substitute its opinion for the opinion of the Board where the Board’s decision is supported by substantial evidence. Adams, 139 So.3d at 62, 2014 WL 657384, at *3 (¶ 8); see also Miss.Code Ann. § 53-3-119 (appeals to chancery court).

      . See Miss.Code Ann. § 53—3—7(2)(a) (providing three statutory options that operators can offer).

      . We recognize that ‘‘[w]hen the drilling unit for a well is 'force-integrated' under [section] 53-3-7, the well operator may recover from a non-consenting owner only those costs of development or production that are (1) actually incurred, (2) necessary, and (3) reasonable.” TXG Intrastate Pipeline Co. v. Grossnickle, 716 So.2d 991, 1007 (¶ 38) (Miss.1997).

      . The letter tendered by Maxwell is not an enforceable agreement. Under Mississippi law, an owner of drilling rights whose interest is force integrated is not personally liable for any costs to drill, complete, and operate a well unless the owner has signed a written agreement with contractual undertakings that obligate the owner to pay. That type of agreement is usually an operating agreement. Huffco Petroleum Corp. v. Massey, 834 F.2d 540, 542-43 (5th Cir.1987) (where the operator and the owner never reached agreement on and signed a joint operating agreement, the owner was not obligated to pay any costs); Sonat Exploration Co. v. Mann, 785 F.2d 1232, 1235 (5th Cir.1986) (owner who signed an AFE but not an operating agreement was not obligated to pay any costs); Hunt Energy Corp. v. Crosby-Miss. Res. Ltd., 732 F.Supp. 1378, 1380 (S.D.Miss.1989) (because of the lack of a written operating agreement between the operator and the force-integrated owner, the owner was not obligated to pay any costs).

      . See Miss.Code Ann. § 53-3-7(2)(a) & (g); Waller Bros., 836 F.Supp. at 367-69; Hunt Energy, 732 F.Supp. at 1380.

      . A contract is not formed until an offeree accepts the terms. Vice, 811 So.2d at 338 (¶ 12).

      . Gadeco, LLC v. Indus. Comm’n of N.D., 812 N.W.2d 405, 407-08 (N.D.2012); Bruce M. Kramer & Patrick H. Martin, The Law of Pooling and Unitization, § 12.01 (2010); Williams & Meyers, Manual of Terms, Oil and Gas Law at 659 (2011).

      . See Miss.Code Ann. § 53-3-7(2)(a).

      . Regarding the standard of review applicable to the findings and decision of the Board, see generally Boyles, 794 So.2d at 152 (¶ 6); Tex. Pac. Oil Co., 328 So.2d at 663 (appellate court will affirm where the Board’s decision is supported by substantial evidence).


author: ROBERTS, J.,

text:
    Andrew K. MATTHIES, Appellant v. Milton REED, Red Mountain Entertainment, Inc., and Blue Deuce Entertainment, LLC, Appellees.
    No. 2012-CA-00497-COA.
    Court of Appeals of Mississippi.
    June 10, 2014.
    Rehearing Denied Sept. 30, 2014.
    Hinds County Circuit Court, Hon. Jeff Weill Sr., J.
    David Neil McCarty, William B. Gill III, James Michael Priest Jr., Jackson, attorneys for appellant.

      Thomas Ray Julian, Cory Todd Wilson, John Benton Clark, Jackson, Wilton V. Byars III, Oxford, Lawrence Murray Coco III, Ridgeland, attorneys for appellees.
    Before LEE, C.J., ROBERTS and JAMES, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. The Hinds County Circuit Court granted Milton Reed’s motion for summary judgment after finding that Reed was a state employee, who, therefore, was immune from liability under the Mississippi Tort Claims Act (MTCA), codified in Mississippi Code Annotated sections 11-46-1 to -23 (Rev.2012). A lawsuit stemmed from actions taken by Reed while providing security at an event on the Mississippi Fairgrounds, which resulted in an injury to Dr. Andrew Matthies. Due to the circuit court’s finding that Reed was an employee of Mississippi at the time of the incident, the circuit court also granted Red Mountain Entertainment Inc.’s and Blue Deuce Entertainment LLC’s motions for summary judgment, as they could not be vicariously liable for Reed’s actions if he was not their employee. Dr. Matthies appealed, and, after a de novo review, we reverse and remand this case for trial. Determinations of Reed’s employer and his employment status at the event were genuine issues of material fact not appropriate for disposition on summary judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 3, 2008, Dr. Matthies attended the Miller Lite Crawfish Boil held on the Mississippi Fairgrounds in Jackson, Mississippi. The crawfish boil was a production of Red Mountain and Blue Deuce, which both entered into a contract with the Mississippi State Fair Commission to hold the crawfish boil and concerts on the fairgrounds.

¶ 3. The events that led to Dr. Matthies removal from the crowd are disputed; however, there is no dispute that Reed escorted an intoxicated Dr. Matthies to an exit gate. Reed pushed Dr. Matthies out of the gate, and Dr. Matthies fell, injuring his shoulder, wrist, and jaw. His shoulder injury required surgery. Dr. Matthies also received cuts and bruises on his hands and face from his fall. According to Dr. Matthies, Reed was negligent in shoving Dr. Matthies out of the gate and onto the ground, where he landed face first on concrete. Dr. Matthies was treated briefly by on-site paramedics, but he was not cooperative with them. He returned to the craw-fish boil, where he was again escorted from the event, this time without incident.

¶ 4. Dr. Matthies filed his initial complaint on April 29, 2009, based on the injuries he allegedly received when he was shoved out of the gate by Reed. His complaint was amended in November 2009 to add Reed as a defendant. It was again amended on March 15, 2010. In his third, and final, amended complaint filed on December 7, 2010, Dr. Matthies named Red Mountain, Blue Deuce, the Fair Commission, the State of Mississippi by and through the Fair Commission, and Reed as defendants. His complaint alleged negligence against all defendants and the vicarious liability of Red Mountain, Blue Deuce, and the Fair Commission.

¶ 5. The Fair Commission moved for summary judgment, and, while acknowledging that Reed’s employment status was disputed, the circuit court granted the motion on April 18, 2011. The circuit court found that “for the purposes of the summary judgment motion, the Fair Commission treat[ed] Reed as its employee.” The Fair Commission was immune from liability pursuant to the MTCA. Reed filed his motion for summary judgment on November 21, 2011, and asserted that he was immune under the MTCA because he was an employee of the state and within the scope of his employment at the time of the incident. Further, his conduct involved an element of choice or judgment affecting social policy. Red Mountain and Blue Deuce filed their motion for summary judgment on October 23, 2012, on the ground that if Reed was a state employee, they could not be- vicariously liable for his conduct since he was not their employee.

¶ 6. The circuit court entered its order granting Reed’s motion for summary judgment on December 6, 2012. In its order, the circuit court found that the Fair Commission was Reed’s employer because the Fair Commission “maintained ultimate control over the fairgrounds and over Reed, as the Fair Commission’s security employee for the [crawfish boil].” Further, the circuit court found that “[w]hile the testimony of various witnesses may have differed regarding Reed’s employment, ... no genuine issue of fact exists when considering Reed’s employment status in tandem with [the] applicable Mississippi law.” Because Reed was an employee of the state, he was immune under the MTCA. The circuit court also granted Red Mountain and Blue Deuce’s motion for summary judgment because they could not be vicariously liable for Reed’s conduct.

¶7. Dr. Matthies appealed the circuit court’s judgment and asks this Court to determine whether “a [security [g]uard at a [e]oncert [is] a [s]tate [e]mployee for [p]urposes of [i]mmunity[.]”

ANALYSIS

¶ 8. We review a circuit court’s decision to grant or deny a motion for summary judgment using the de novo standard, and the evidence will be considered in the light most favorable to the nonmoving party. Webb v. Imperial Palace of Miss., LLC, 76 So.3d 759, 759-60 (¶ 3) (Miss.Ct.App.2011). Mississippi Rule of Civil Procedure 56(c) provides: “The judgment sought shall be rendered ... if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

¶ 9. Reed’s motion for summary judgment was granted following the circuit court’s determination that he was an employee of the state and immune under the MTCA; therefore, who Reed’s employer was at the crawfish boil is central to this case. If he is not a state employee, then Reed, Blue Deuce, and Red Mountain may be liable for Dr. Matthies’s injuries. But, if Reed is a state employee, as he asserts and the circuit court found, he could be protected from liability by the MTCA, and the promoters would not be liable.

¶ 10. Blue Deuce and Red Mountain entered into a contract with the Fair Commission to rent the fairgrounds for the crawfish boil and concert. The contract contained the following provision: “The operational control of the facilities shall, at all times, rest with the ... Fair Commission management. The Fair Commission Director shall make all final decisions relating to the use of the facilities and personnel.” Another provision provided that “[t]he Hinds County Sheriffs Department will work the event and will be paid for by the organization renting the space. The number of deputies will be mutually agreed upon by the promoter and the ... Fair Commission.... ” Ogden Wilburn, director of security for the Fair Commission, was responsible for coordinating the uniformed deputies from the Hinds County Sheriffs Department as well as the additional security, known as t-shirt security. Wilburn stated in his deposition that he was working for Blue Deuce at the craw-fish boil and was not in his capacity as an employee of the Fair Commission when working the event because it was an after-hours event. Further, Wilburn testified that even if an event is on the fairgrounds, if it is not paid for by the state, it is not considered a Fair Commission event. Wilburn paid the security officers in cash from Blue Deuce and Red Mountain’s proceeds from the box office; however, he personally was paid in compensation time. Wilburn was asked at his deposition: “But there’s no doubt that Milton Reed was employed to work this crawfish boil?” Wilburn responded: “By the promoter[s (Blue Deuce and Red Mountain) ].” Lastly, he explained that Tony Joachim, head of productions at Blue Deuce, was at the top of the chain of command when it came to security at the crawfish boil.

¶ 11. According to Reed’s deposition, he first claimed he was employed by the Fair Commission, but he later stated he was not sure who he was working for at the time. Reed was paid in cash from the proceeds of the box office by Wilburn. Ken Magee, another security officer at the crawfish boil, submitted an affidavit and reiterated Wilburn’s statement that security officers were working for the promoters and that they “worked under the direction of Tony Joachim,” who was with Blue Deuce. Joa-chim told them “how many t-shirt security officers he wanted and where he wanted them.... He told us where all the access points would be at the event. We worked under the direction of [Joachim].” Magee testified that Wilburn paid the security officers in cash out of the box office, and he explained:

There are occasions when we work events at the [fairgrounds] where we actually work for the [Fair Commission]. We are considered independent contractors when we are working for the [Fair Commission], An example of this type [of] event would be the Mississippi State Fair. We are paid by the Fair Commission through the Mississippi Department of Finance and Administration by direct deposit. We are never paid cash by the [Fair Commission],

Jake Hutchins, the deputy director of the Fair Commission, submitted an affidavit, which confirmed Magee’s statement that state employees are only paid by check, direct deposit, or compensation time; they are never paid in cash. Paul Stegall, safety officer with the Fair Commission, testified during his deposition that he was not sure who paid the security officers, but he imagined that the promoters paid them.

¶ 12. However, Russell Doussan with Blue Deuce testified in his deposition that the Fair Commission was responsible for hiring and actually paying the security officers, and that Reed was an employee of the Fair Commission.

¶ 13. ‘Where doubt exists as to whether there is a genuine issue of material fact, the trial judge should err on the side of denying the motion and permitting a full trial on the merits.” Ellis v. Powe, 645 So.2d 947, 950 (Miss.1994). “Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite.” Mantachie Natural Gas Dist. v. Miss. Valley Gas Co., 594 So.2d 1170, 1172 (Miss.1992) (citation omitted). The general factors to be considered in determining employee/independent-contractor status are delineated in Richardson v. APAC—Mississippi Inc., 631 So.2d 143, 148-50 (Miss.1994). These factors are:

Whether the principal master has the power to terminate the contract at will; whether he has the power to fix the price in payment for the work, or vitally controls the manner and time of payment; whether he furnishes the means and appliances for the work; whether he has control of the premises; whether he furnishes the materials upon which the work is done and receives the output thereof, the contractor dealing with no other person in respect to the output; whether he has the right to prescribe and furnish the details of the kind and character of work to be done; whether he has the right to supervise and inspect the work during the course of the employment; whether he has the right to direct the details of the manner in which the work is to be done; whether he has the right to employ and discharge the subemployees and to fix their compensation; and whether he is obliged to pay the wages of said employees.

Id. at 148-49. Richardson also added an additional factor “to see if public policy should permit the transformation of an ordinarily employer/employee relationship into that of an independent contractor.” Id. at 150. Historically the primary factor has been the degree of control by the principal. Sun Vista, Inc. v. Miss. Dep’t of Emp’t Sec., 52 So.3d 1262, 1267 (¶ 12) (Miss.Ct.App.2011) (citation omitted).

¶ 14. As was outlined above, there is much confusion and contradiction as to who employed Reed as a security guard for the crawfish boil. Viewing the evidence in a light most favorable to Dr. Matthies, we find that the contradictory testimony on Reed’s employment status— i.e., whether he was a state employee, thereby providing him possible immunity under the MTCA, or whether he was an employee of Red Mountain and Blue Deuce — created a genuine issue of material fact. We reverse the circuit court’s grant of summary judgment and remand for a trial on the merits.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

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