author: STEWART, J.

text:
    CHESAPEAKE OPERATING, INC., Plaintiff-Appellee v. CITY OF SHREVEPORT and Caddo Parish Commission, Defendants-Appellants.
    Nos. 48,608-CA, 48,609-CA, 48,610-CA, 48,611-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2014.

      Downer, Huguet & Wilhite, Shreveport, by: William R. Huguet, Michael A. Mari-no, for Intervenor Appellant, EXCO Operating Co., L.P.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, Shreveport, by: Jerald L. Perlman, Edwin H. Byrd, III, for Defendant Appellant, City of Shreveport.
    Onebane Law Firm, Lafayette, by: Randall C. Songy, Karen D. Ancelet, Jeremy B. Shealy, for Third Party Appellees, Chesapeake Louisiana, L.P., PXP Louisiana, L.L.C. and Larchmont Resources, L.L.P.
    Davidson, Jones & Summers, by: Randall S. Davidson, Shreveport, Wm. Lake Hearne, Jr., for Defendant Appellee, Caddo Parish Commission.
    Before STEWART, DREW and GARRETT, JJ.
   STEWART, J.

hThe res nova issue presented in this appeal concerns whether annexation by the City of Shreveport (“the city”) of Cad-do Parish territory, which included dedicated public roads, transferred ownership of the public roads and underlying acreage to the city so that the city, rather than Caddo Parish, is entitled to the proceeds of mineral production attributable to that acreage. On competing summary judgment motions, the trial court concluded that the city did not acquire ownership of the dedicated public roads upon annexation. For reasons explained in this opinion, our de novo review leads this court to conclude otherwise and hold as a matter of law that annexation by the city of territory in which public roads are located had the effect of transferring any parish ownership of roads and underlying acreage to the city.

FACTS

Chesapeake Operating, Inc. (“Chesapeake”), filed four separate concursus actions naming the city and the Caddo Parish Commission (“the parish”) as defendants to determine whether the city or the parish is entitled to receive the royalties from mineral production from gas wells operated by Chesapeake and located in Sections 6, 7, 8, and 17 all within Township 16 North, Range 14 West. Both the city and parish executed mineral leases covering the disputed public roads. By instrument dated August 12, 2009, the State Mineral and Energy Board (“the board”) granted on behalf of the parish as lessor a mineral lease in favor of Merit Energy Services covering 158.58 acres. By instrument dated October 14, 2009, the board granted on behalf of the city as lessor a mineral lease in favor of Cypress Energy ^Corporation covering approximately 478.288 acres. By virtue of their leases, both the parish and the city claimed entitlement to the royalties attributable to all acreage underlying public roads, streets, and highways in the covered sections. Exhibits listing the disputed roads, streets, and highways at issue are attached to each concursus petition and show that the total acreage in dispute is less than 80 acres. The four concursus actions were consolidated by order of the trial court on March 12, 2012.

The conflicting claims by the parish and city resulted from the city’s annexation of parish property, which the city contends transferred ownership, including mineral rights, of public roads and roadbeds within the annexed territory. The parish asserts that the property in dispute was dedicated to public use prior to the city’s annexation, which did not transfer ownership of the roads and roadbeds from it to the city.

EXCO Operating Company, LP (“EXCO”), the party to whom Cypress had assigned its interest in the city’s lease, intervened in the concursus proceedings in alignment with the interests of the city. On July 18, 2012, EXCO filed a motion for summary judgment to have the city declared the owner of the disputed property. Among its exhibits, EXCO included conflicting attorney general opinions, discussed infra, addressing the effect of annexation. EXCO also included a legal memorandum by Christopher J. Tyson, a law professor, analyzing Louisiana annexation law.

[¡¡Following EXCO’s lead and adopting its arguments, the city filed its own motion for summary judgment to have it declared the owner of the proceeds of mineral production attributable to all the dedicated roadways at issue in the consolidated con-cursus actions. Among its exhibits, the city included the various annexation ordinances, along with uncertified copies of various dedications of the roads at issue, which Chesapeake had provided to it in discovery.

On September 28, 2012, Chesapeake and the parish filed a cross-motion for a partial summary judgment declaring that annexation by the city did not transfer ownership of the roadbeds and their appurtenant mineral rights. In their motion, they noted that this court had under consideration a matter concerning whether a formal dedication to public use of land for a road transferred ownership or a servitude of use and that a ruling by this court might affect some of the tracts involved in this dispute. However, they maintained that the fundamental issue of whether annexation transfers ownership must still be decided.

In their motion, Chesapeake and the parish also sought to have EXCO’s Tyson memorandum stricken as an unsigned, unsworn, and insufficient evidence for summary judgment purposes. Thereafter, EXCO filed a motion to supplement its motion for summary judgment with Tyson’s curriculum vitae and affidavit identifying him as a professor of local government and property law at LSU Law Center.

[/The trial court heard arguments on the competing motions on October 17, 2012, and rendered a written opinion on November 29, 2012. The trial court framed the issues before it concerning the consequences of annexation as whether, upon annexation, the city acquired ownership of the dedicated public roads along with the appurtenant mineral rights within the annexed geographical area or whether the city merely enlarged its boundaries without acquiring ownership of the public roads and mineral rights. The trial court concluded that the city did not show as a matter of law that it acquired ownership of the public roads at issue through annexation. Because the parish did not convey ownership of public roads when it agreed to permit annexation of territory encompassing the public roads at issue, the trial court ruled that the parish, not the city, was entitled to execute the mineral leases and receive the proceeds of mineral production attributable to the disputed properties.

Accordingly, the trial court rendered a judgment on December 19, 2012, that denied EXCO’s and the city’s motions for summary judgment, denied EXCO’s motion to supplement, and granted the cross motion for partial summary judgment by the parish and Chesapeake. As provided by La. C.C.P. art.1915, the trial expressly designated this a final judgment for purposes of immediate appeal. Costs were assessed equally between Chesapeake and EXCO.

Following the rendition of the final judgment, the city filed a motion for a new trial and a second motion for summary judgment. The city argued that, under this court’s then recently rendered decision in Webb, supra, the trial court’s judgment was contrary to law. The city sought to have the trial |scourt revisit its prior ruling in light of Webb, supra, and to differentiate between those roads that were the subjects of statutory and formal dedications.

Chesapeake, EXCO, and the parish opposed the city’s motion for new trial and second motion for summary judgment. Their various oppositions noted that' Webb, supra, which did not address annexation, was not contrary to the trial court’s limited ruling on the effect of annexation, that the pendency of the Webb matter before this court had been disclosed to the trial court, and that the trial court had not been asked to opine on factual matters concerning the exact acreage and roads in dispute. After hearing arguments on February, 25, 2013, the trial court denied the city’s motion for a new trial and found its second motion for summary judgment to be moot.

Both EXCO and the city have appealed the denial of their motions for summary judgment and the granting of the motion for partial summary judgment in favor of Chesapeake and the Parish. Additionally, the city appeals the denial of its motion for a new trial and the ruling that its second motion for summary judgment is moot.

DISCUSSION

The motions for summary judgment filed by EXCO and the city and the cross motion for partial summary judgment filed by Chesapeake present the res nova issue concerning the effect of annexation on the ownership of public roads and the land upon which they are built. This is a question of law for which summary judgment is appropriate. Bellard v. American Cent. Ins. Co., 2007-1335 (La.4/18/08), 980 So.2d 654; Franklin v. Camterra Resources Partners, Inc., 48,021 (La.App.2d Cir.5/22/13), 123 So.3d 184. A judgment that grants or denies a motion for summary judgment is subject to a de novo review by the appellate court. Dortch v. Rollins, 47,525 (La.App.2d Cir.4/10/13), 113 So.3d 443.

The issue presented also involves interpretation of annexation statutes. Statutory interpretation involves a search for the legislature’s intent in enacting the law. Pociask v. Moseley, 2013-0262 (La.6/28/13), 122 So.3d 533. When a law is clear and unambiguous, and its application does not lead to absurd consequences, it shall be applied as written without further interpretation in search of the legislative intent. La. C.C. art. 9; La. R.S. 1:4; Pociask, supra. Laws on the same subject matter must be construed in reference to each other. La. C.C. art. 13; Pociask, supra. A law’s meaning and intent “is determined by considering the law in its entirety and all other laws on the same subject matter and placing a construction on the provision in question that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting it.” Pociask, 2013-0262, p. 12, 122 So.3d at 541, and cases cited therein.

Public roads are ones subject to public use, and the public may own the land on which the road is built or merely have the right to use it. La. C.C. art. 457. The record indicates that the roadbeds at issue were dedicated for public use through both formal and statutory dedications. Statutory dedication vests full ownership in the public authority, whether a municipality, parish, or the state, depending on where the road is located. Garrett v. Pioneer Production Corp., 390 So.2d 851 (La.1980). However, a subdivider may reserve ownership of streets and public places and grant only a servitude of use to the public. St. Charles Parish School Bd. v. P & L Inv. Corp., 95-2571 (La.5/21/96), 674 So.2d 218. Likewise, a formal dedication transfers ownership of the property to the public unless ownership is expressly or impliedly retained, in which case the public acquires a servitude of use. Id.

Recently, this court in Webb, supra, held that formal dedications executed in 1913, 1914, 1924 and 1928 on forms preprinted by the Caddo Parish Police Jury and stating that the property was dedicated to the public for a public road granted only a servitude to the parish, not fee title. The court reasoned that the parties historically treated the dedications as servitudes, no compensation had been given, the dedications had no language granting fee title to the parish, and the property was dedicated for a limited purpose. Additionally, the court took note of a resolution passed by Caddo Parish Police Jury in 1983 by which it waived claims to fee title and mineral rights in property dedicated for road purposes only and where the dedication instruments indicated no financial consideration was given to the grantors.

Unlike in Webb, supra, this matter is not a dispute between private persons and the parish. Moreover, the issue of whether any specific dedication conveyed fee title of the land to the parish was not before the trial court and is not before us for review. Rather, the narrow issue before us is the effect of the city’s annexation of public roads and roadbeds owned by the parish.

| ¡Annexation is the procedure by which a municipality extends its corporate limits. This may occur by petition and election as provided by La. R.S. 33:151 through 33:161, or by ordinance as provided by La. R.S. 33:171 through R.S. 33:180. The effect of annexation on territory annexed by a municipality is best explained in La. R.S. 33:160(A), which states that the annexed land shall

be included in and constitute part of the corporate limits of the city or town and subject to the jurisdiction, control, and authority of the municipal authorities of the city or town as fully, and to all intents and purposes as if, the same had been originally included in the corporate limits thereof.

Though this language is not repeated in other provisions addressing annexation, we find that regardless of the procedure by which annexation occurs the effect is the same as stated in La. R.S. 33:160(A). Land annexed by a municipality becomes subject to the jurisdiction, authority, and control of the municipality.

Pertinent to the issue at hand is La. R.S. 38:224, which states:

Whenever any municipality annexes territory by any of the methods provided for in this Chapter it shall also annex and maintain any parish road which is within the territory proposed to be annexed, but only insofar as the road is within the municipality. Where the road is adjacent to but not within the annexed territory the municipality and the parish shall equally share the maintenance of the road. Any annexation contrary to the provisions of this Section shall be invalid. The provisions of this Section shall not apply to any parish in which there is a city-parish form of government.

While La. R.S. 33:224 does not expressly refer to a transfer of ownership, it does require that parish roads be included in the annexation, and it places the burden of maintaining such roads on the municipality. Thus, the municipality becomes responsible for the road now included in its corporate limits. Moreover, as to the effect of annexation discussed above, the lands |sunderlying the parish roads shall be included within the corporate limits of the municipality and be subject to the jurisdiction, control, and authority of the municipal authorities the same as other annexed lands.

As provided by La. C.C. art. 477(A), ownership confers “direct, immediate, and exclusive authority over a thing” and allows the owner to “use, enjoy, and dispose of it within the limits and under the conditions established by law.” Public things, such as streets or roads, are owned by the state or its political subdivisions in their capacity as public persons. La. C.C. art. 450. As explained in Comment (b) of La. C.C. art. 450, public things are out of commerce and dedicated to public use, with the public authorities acting as “trustees” for the benefit of public. Considering these articles in light of the annexation provisions discussed above, we are persuaded by EXCO’s argument that public property is acquired and held for the benefit of the public and that when such property is included in territory annexed by a municipality, the ownership of the public property is transferred to the annexing municipality which assumes authority, jurisdiction, and control over the public property.

The parties recognize that there is no jurisprudence directly addressing whether annexation of public roads, meaning roads owned by the political subdivisions in their capacity as public persons, transfers ownership from the parish to the annexing municipality. However, three attorney general opinions have addressed the issue. While such opinions are advisory and not binding, our court recognizes their persuasive authority. Anderson v. Bossier Parish Police Jury, 45,639 (La.App.2d Cir.12/15/10), 56 So.3d10 275; Holley v. Plum Creek Timber Co., 38,716 (La.App.2d Cir.6/23/04), 877 So.2d 284.

The first, La. Atty. Gen. Op. No. 1985-75, involved a dispute over mineral rights between Pointe Coupee Parish and the City of New Roads. After a statutory dedication to public use of all roads and streets within a subdivision located in Pointe Coupee, part of the subdivision was included in a production unit. Some years later, the City of New Roads annexed the subdivision and then sought to obtain the proceeds of mineral production. On the question of whether annexation of the statutorily dedicated subdivision transferred ownership to public property, the attorney general concluded that it did. The opinion cites Garrett v. Pioneer Production Corp., supra, for the rule that “statutory dedication vests full ownership in the municipality, parish, or State of Louisiana, depending upon where the street or road is located.” It then likens this ownership interest to that of a trust with the public authority acting as a trustee exercising control over the property for the public. Discussing annexation, the opinion explains that a municipality assumes control and responsibility over the annexed roads to the exclusion of the parish and that it is the municipality’s assumption of responsibility for the public use of the annexed roads that effects a transfer in ownership or “trustee.” The attorney general concluded that, having assumed authority and responsibility for the annexed area, annexation vested ownership in the City of New Roads to the exclusion of Pointe Coupee.

When asked a few years later whether “a municipality may acquire mineral rights to a parish-owned road upon annexation by the municipality,” the attorney general concluded with little analysis that no provision |n authorizes transfer of ownership by annexation. La. Atty. Gen. Op. No. 1988-529. When asked to reconsider this opinion, the attorney general affirmed it while recognizing “that the issue is far from settled.” La. Atty. Gen. Op. No. 93-155. Citing La. R.S. 38:224, the attorney general noted that it does not address a transfer of ownership, but merely refers to annexation and maintenance. The attorney general did not equate the jurisdiction, control, and authority over annexed lands to ownership.

Though the attorney general twice concluded that a municipality does not acquire mineral rights underlying a parish-owned road when it becomes part of the municipality through annexation, we are persuaded that its initial opinion (No. 1985-75) properly analyzed the issue and reached the correct result.

Citing Akin v. Caddo Parish Police Jury, 234 So.2d 203 (La.App. 2d Cir.1970), writ ref'd, 256 La. 75, 235 So.2d 99 (La.1970), and Riverside Homeowners Ass’n v. City of Covington, 2007-0886 (La.App.1st Cir.4/16/08), 986 So.2d 70, writ denied, 2008-1064 (La.9/26/08), 992 So.2d 985, the parish and Chesapeake argue that jurisprudence has determined that ownership is not transferred by annexation alone. Neither of these cases involved the annexation of a public road.

In the Akin case, which was not an annexation case, residents sought to enjoin the Caddo Parish Policy Jury from proceeding with plans to enlarge the parish courthouse located in Shreveport. After determining that exceptions of no cause of action and no right of action should have been sustained, the appellate court further addressed the merits of the plaintiffs’ claim. The court noted that the city, which was not a party in the case, did 112not assert that it had title to or a right to possess, control, or administer the parish court house. Moreover, the legislation that created the then “Town of Shreveport” excepted from it the authority to dispose of lands belonging to the parish within the town’s limits. Thus, the parish continued to exercise jurisdiction and control over the courthouse, which it possessed and administered in the public’s interest in compliance with its statutory obligation (La. R.S. 33:4713) to maintain a parish courthouse. The court rejected the argument that the creation of the Town of Shreveport transferred public property from the parish to the town. In dicta, and without citing any authority, the court opined that title to public property remains with the governing authority at the time of dedication. While making that declaration without citing any authority, the court further stated that it found no authority upon which it could conclude that the “title or ownership in the public of the streets or alleys is affected or changed from the public supervised and controlled by one governmental agency to another supervised and controlled by a separate governmental agency.” Id. at p. 208-209. As stated, we view this conclusion as dicta and not controlling, particularly since Akin, supra, involved neither annexation, ownership of public roads, nor a dispute over such between the a parish and municipality.

Riverside, supra, involved an effort by a civic association and a group of individuals to enjoin the City of Covington from annexing a portion of a state-owned river bottom and a private property adjacent to the navigable river. The trial court denied the plaintiffs relief and the appellate court affirmed. On the issue of whether the city could annex the state-owned river bottom under La. R.S. 83:180, which governs annexation by ordinance of | island wholly owned by a public body, the appellate court concluded that the city could annex the river bottom. The court reasoned that annexation would neither transfer ownership of the river bottom from the state to the city nor would it limit the state from controlling and leasing encroachments on the riverbed in accordance with La. R.S. 41:1701. Contrary to the arguments of Chesapeake and the parish, this case does not definitively establish that annexation does not transfer ownership of public property. At most, it makes clear that ownership of a state-owned navigable river bottom is not transferred by annexation. The bottoms of natural navigable water bodies are public things owned by the state, not its political subdivisions. La. C.C. art. 450.

From our de novo review of the parties’ motions and for the reasons set forth, we find that annexation by the city of public property, namely public roads and roadbeds owned by the parish, transferred ownership to the city. Upon annexation, the city obtained full authority, control, and jurisdiction over such roads and roadbeds, including the authority over the mineral rights attributable to such acreage. As previously addressed, the issue of whether any specific dedication conveyed fee title of the land to the parish was not before the trial court and is not before us for review. Rather, we grant the city’s and EXCO’s motions for summary judgment on the narrow issue of the effect of the city’s annexation of public roads and roadbeds owned by the parish. Because of our decision reversing the trial court’s judgment, we consider the city’s assignments regarding the denial of |14its motion for a new trial and second motion for summary judgment to be moot.

CONCLUSION

For the reasons set forth in this opinion, we reverse the trial court’s judgment granting the cross motions for partial summary judgment in favor of the Caddo Parish Commission and Chesapeake Operating, Inc. We further reverse the trial court’s judgment denying the motions for summary judgment by the City of Shreveport and EXCO Operating Company, LP, and we render summary judgment in their favor as stated in this opinion.

Costs of this appeal are assessed to Chesapeake Operating, Inc., appellee.

REVERSED and RENDERED.

      . Asserting that all proceeds under the competing leases are in dispute, EXCO sought to have Chesapeake deposit into the registry of the court all sums accruing, including the 75 percent net revenue interest owed to working interest owners under the leases. This is not at issue in this appeal.

      . EXCO's motion refers only to dedicated property in Section 7.

      .The case referred to is Webb v. Franks Inv. Co., 47,321 (La.App.2d Cir. 10/29/12), 105 So.3d 764, writ denied 2012-2549 (La.4/1/13), 110 So.3d 579, writs denied 2012-2552, 2012-2553 (La.4/1//13), 110 So.3d 580, and writs denied 2012-2556, 2012-2565 (La.4/1/13), 110 So.3d 581.

      . This case was overturned as to the requirements of a tacit dedication by Cenac v. Public Access Water Rights Ass'n, 2002-2660 (La.6/27/03), 851 So.2d 1006.

      . La. R.S. 41:1701 declares that the beds and bottoms of all navigable waters belong to the state and are "public lands” and are to be protected, administered, and managed by the Department of Natural Resources.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    Lisa CARNEY, Plaintiff-Appellant v. ELDORADO RESORT CASINO SHREVEPORT, Defendant-Appellee.
    No. 48,761-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2014.

      G. Adam Savoie, Shreveport, for Appellant.
    Dannye W. Malone, William C. Bradford, Jr., Shreveport, for Appellee.
    Before BROWN, WILLIAMS and PITMAN, JJ.
   WILLIAMS, J.

h The plaintiff, Lisa Carney, appeals a judgment in favor of the defendant, Eldorado Resort Casino Shreveport. The trial court found that the casino was not liable for plaintiff’s foot injury. For the following reasons, we affirm.

FACTS

On May 20, 2011, Lisa Carney went to dinner with a female friend, Daven Hill. After eating, the women went to dance at the Celebrity Lounge, which is located on the premises of the Eldorado Casino in Shreveport. While dancing, Hill and Carney saw pieces of broken glass on the floor. Hill later told a bartender about the glass on the dance floor. A short time after the women returned to the dance floor, Carney was injured when her right foot was severely cut. Carney applied paper towels to her foot to stop the bleeding. She was then placed into a wheelchair by an Eldorado employee and taken out of the club. At that point, the employee asked Carney to write a statement about the accident. Carney wrote that she was “dancing on stage and glass hit my foot[.]”

The next day, Carney went to the Willis-Knighton emergency room and was examined by Dr. Andrew Haynes, who reported that Carney had sustained a laceration to the dorsum (top) of her right foot with “impaired” tendons. In an incident report, Eldorado Security Manager Jerry Willard, Jr., wrote that Carney stated that “she was dancing and an unk[nown] guest dropped a drink glass on the dance floor causing a piece of glass to hit the top of her right foot[.]” In a letter to a casino representative, dated June 2, 2011, Carney wrote that she was “injured while dancing on the dance floor, presumably by glass.” In a supplemental incident report, the casino security | ^investigator, Walter Patton, stated that he had reviewed the security camera footage taken at the time of the incident, but due to the lighting conditions and the crowd on the dance floor, “nothing conclusive was observed.”

Subsequently, the plaintiff, Lisa Carney, filed a petition for damages against the defendant, Eldorado Resort Casino Shreveport. Plaintiff filed a pretrial motion seeking an adverse presumption of liability against the defendant on the ground that the failure to preserve the surveillance footage constituted spoliation of evidence. After trial, the court issued written reasons for judgment. On the issue of spoliation, the trial court denied plaintiffs motion, finding that defendant had adequately explained the failure to produce the video evidence and did not act in bad faith. Regarding liability, the court found that the merchant liability statute, LSA-R.S. 9:2800.6, was inapplicable because the plaintiffs injury was not caused by a fall. The court further found that plaintiff had failed to produce evidence sufficient to satisfy her burden of proving that her injury was caused by broken glass on the floor, rather than by another patron dropping a glass near her or stepping down on her foot. The trial court rendered judgment in favor of the defendant, dismissing plaintiffs claims. The plaintiff appeals the judgment.

DISCUSSION

The plaintiff contends the trial court erred in finding that LSA-R.S. 9:2800.6 is not applicable in this case. Plaintiff argues that the court should have applied the statute rather than general negligence principles because the case involves the safety of a merchant’s premises.

LSA-R.S. 9:2800.6 provides in pertinent part:

|S(A) A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
(B) In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages ... sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, pri- or to the occurrence.
(3) The merchant failed to exercise reasonable care.

A merchant is required to keep the premises safe from unreasonable risks of harm and to warn persons of known dangers. Although the owner of a commercial establishment has an affirmative duty to keep the premises in a safe condition, he is not the insurer of the safety of his patrons. A merchant is not liable every time an incident happens. Harrison v. Horseshoe Entertainment, 36,294 (La.App.2d Cir.8/14/02), 823 So.2d 1124. A court of appeal should not set aside a trial court’s finding of fact in the absence of manifest error. Stohart v. State DOTD, 617 So.2d 880 (La.1993); Crisler v. Paige One, Inc., 42,563 (La.App.2d Cir.1/9/08), 974 So.2d 125.

Initially, we note that imposition of liability against a merchant for a patron’s injuries resulting from an accident on the merchant’s premises is governed by the merchant liability statute, LSA-R.S. 9:2800.6. Davis v. Wal-Mart Stores, Inc., 2000-0445 (La.11/28/00), 774 So.2d 84; Milton v. E & M Oil Co., 45,528 (La.App.2d Cir.9/22/10), 47 So.3d 1091. Thus, although the trial court was correct in stating that Section 2800.6(B) was ^inapplicable here, the court then incorrectly stated that the entire statute was not applicable in this case. Nevertheless, the trial court accurately stated that in this negligence action, the plaintiff also has the burden of proving that the defendant owed her a duty, that defendant breached the duty and that the breach was a cause of plaintiffs injury. See Boykin v. Louisiana Transit Co., Inc., 96-1932 (La.3/4/98), 707 So.2d 1225. Consequently, we shall consider the duty-risk analysis and Section 2800.6(A) in our review of the record on appeal.

The plaintiff contends the trial court erred in finding that the evidence failed to rule out alternative causes of plaintiffs injury. Plaintiff argues that the testimony showed that more likely than not broken glass on the dance floor caused the injury to plaintiffs foot.

To determine liability in a negligence case, we apply the duty-risk analysis, which requires the plaintiff to prove that the defendant’s conduct was a cause-in-fact of the resulting harm, that defendant owed a duty of care to the plaintiff, that the duty was breached and that the risk of harm was within the scope of protection afforded by the duty breached. Mathieu v. Imperial Toy Corp., 94-0952 (La.11/30/94), 646 So.2d 318; Vig v. City of Shreveport, 28,530 (La.App.2d Cir.8/21/96), 679 So.2d 524. A critical inquiry is whether a causal relationship exists between the plaintiff’s harm and the alleged negligent conduct of the defendant. Cause-in-fact is generally a “but for” inquiry, which requires plaintiff to show he would not have sustained injury but for defendant’s conduct. Roberts v. Benoit, 605 So.2d 1032 (La.1991). In a negligence action, each inquiry must be affirmatively answered in order for plaintiff to recover. Mathieu, supra; Vig, supra. Causation is a question of fact and is subject to the manifest error standard of review. Henderson v. Gregory, 47,086 (La.App.2d Cir.6/20/12), 93 So.3d 818.

In this case, the plaintiff testified that she did not know how her foot was injured. Plaintiff acknowledged it was possible that another patron dropped a drink glass on the floor and caused a piece of broken glass to hit the top of her foot or that her foot was cut by something other than glass. When asked what could have cut her foot, plaintiff stated that she “just assumed” it was the glass which she had seen on the floor earlier.

Hill testified that she had seen glass previously on the left side of the dance floor, but had not observed any glass in the area where plaintiff was later injured. Hill stated that she did not know what caused the cut on the top of plaintiffs foot. In the incident report prepared shortly after the accident, Willard wrote that plaintiff had stated that another patron had dropped a drink glass, which broke on the floor and caused a piece of glass to hit the top of her foot. The situation described in the report suggests that the plaintiffs injury was caused by another patron who was not in defendant’s control and that defendant could not have prevented the injury in the exercise of reasonable care.

After reviewing this record and considering the applicable law, we cannot say the trial court was clearly wrong in finding that the plaintiff failed to satisfy her burden of proving that her injury would not have occurred but for the conduct of the defendant. Consequently, the assignment of error lacks merit. In making this determination, we pretermit discussion of the remaining assignments of error regarding spoliation and |fithe existence of an unreasonably dangerous condition on the premises.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the appellant, Lisa Carney.

AFFIRMED.


author: KING, Justice,

text:
    Walter TARD v. STATE of Mississippi.
    No. 2010-CT-00898-SCT.
    Supreme Court of Mississippi.
    Feb. 20, 2014.

      Office of State Public Defender by George T. Holmes, Leslie S. Lee, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
   ON WRIT OF CERTIORARI

KING, Justice,

for the Court:

¶ 1. Walter Tard was convicted in the Madison County Circuit Court of armed robbery and sentenced to serve forty-five years, with ten years suspended and five years of post-release supervision, in the custody of the Mississippi Department of Corrections. On writ of certiorari, Tard appeals a Court of Appeals judgment affirming his conviction and sentence. Tard argues that the trial court erred by failing to review his entire videotaped interrogation and by failing to suppress his statement. Further, Tard claims that the Court of Appeals erred by not reviewing the videotaped interrogation on appeal and by affirming the trial court’s judgment. Because the record before us fails to indicate upon what evidence the trial court based its decision to deny Tard’s motion to suppress his interrogation, we reverse Tard’s conviction and sentence and remand the case to the circuit court for a new trial.

FACTS

¶ 2. On January 5, 2007, someone robbed a Drury Inn in Ridgeland, Mississippi. During the police investigation of the robbery, Detective Donald Martin of the Ridgeland Police Department obtained the names of a few suspects, one of whom was Walter Tard. The police put together a photographic lineup for the desk clerk who was robbed, and she identified Tard as being the man who had robbed her.

¶ 3. Soon after, detectives with the Ridgeland Police Department arrested Tard and videotaped his interview with Detective Martin. The interrogation lasted approximately two hours.

¶ 4. Tard was indicted on May 22, 2007, for armed robbery pursuant to Mississippi Code Section 97-3-79. Tard pleaded not guilty, and the matter was set for trial. Tard moved to suppress his confession, arguing that “such was not voluntarily given in that, under the totality of the circumstances, the investigating Detective made misrepresentations, promises, threats, and inducements in order to get the Defendant to admit to a crime all while the Defendant suffered from a diminished mental capacity.” On December 12, 2008, the circuit court held a suppression hearing to consider the admissibility of Tard’s confession. At the hearing, Detective Martin testified that he made several misrepresentations to Tard to get him to confess to the robbery. Tard’s aunt also testified, claiming Tard had, inter alia, subnormal mental capacity. During the motion to suppress, the trial court made clear that it did not view the entire two-hour videotaped statement when ruling on Tard’s motion to suppress. The record is utterly silent regarding what portions of the videotape the trial court viewed.

¶ 5. The circuit court denied Tard’s motion to suppress the confession, noting that investigators use many different techniques to extract statements and confessions from suspects, and that no examples of coercion or promises of reward were indicated during the confession. The circuit court also denied Tard’s claim of diminished mental capacity, noting that no medical diagnosis of subnormal mental capacity or testimony, other than that given by his aunt, had been submitted to the court. Thus, Tard proceeded to trial.

¶ 6. After two mistrials, Tard entered a guilty plea on February 3, 2009. However, at the sentencing hearing on March 9, 2009, the circuit court set aside the guilty plea following Tard’s request for withdrawal. A third trial began on May 5, 2009, at which Tard was found guilty of armed robbery. Tard filed a motion for a judgment notwithstanding the verdict (JNOV) and for a new trial on June 11, 2009. The circuit court denied his motion on May 3, 2010.

¶ 7. The Court of Appeals determined that “trial counsel never attempted to introduce the entire videotape for the circuit court’s or the jury’s review. Because the issue was never presented before the circuit judge, any claim for error is procedurally barred from review.” Tard v. State, 132 So.3d 580, 585 (Miss.Ct.App.2013). Accordingly, the Court of Appeals affirmed Tard’s conviction and sentence. We granted Tard’s request for writ of certiorari.

ANALYSIS

¶ 8. Tard moved to suppress his confession, arguing that “such was not voluntarily given in that, under the totality of the circumstances, the investigating Detective made misrepresentations, promises, threats, and inducements in order to get the Defendant to admit to a crime all while the Defendant suffered from a diminished mental capacity.”

¶ 9. We will not disturb a trial court’s denial of a motion to suppress unless “the incorrect legal principle was applied; if there was no substantial evidence to support a voluntary, knowing, and intelligent waiver of Miranda rights; and if the denial was a result of manifest error.” Scott v. State, 8 So.3d 855, 861 (Miss.2008). The State bears the burden to prove the voluntariness of the confession beyond a reasonable doubt. Id. at 861. The volun-tariness of a confession is a factual inquiry that must be made by the trial judge from a totality of the circumstances. Williams v. State, 115 So.3d 774, 778 (Miss.2013). Taking the totality of the circumstances into consideration, a confession is voluntary when it is the product of the defendant’s free and rati4onal choice. See Harden v. State, 59 So.3d 594, 605 (Miss.2011). Thus, any confession elicited as a result of promises, threats, or inducements is not voluntary. Id.

¶ 10. Also, where the accused’s mental capacity is raised, the trial court must determine “whether the accused, pri- or to the confession, understood the content and substance of the Miranda warning and the nature of the charges of which he was accused.” Williams, 115 So.3d at 778. The defendant’s mental retardation “does not render a confession per se involuntary; rather, the defendant’s mental abilities are but one factor to be considered.” Harden, 59 So.3d at 605.

¶ 11. Because the trial court did not review the entire videotaped interrogation, Tard claims the trial court failed to consider the totality of the circumstances. The record does not indicate which parts of the interrogation the trial court viewed, although it is clear that the trial court did not view the entire videotaped interrogation. This Court is left to speculate whether the trial court watched ten seconds, or one hour and fifty-nine seconds, and it is left to speculate as to exactly which portions of the videotape the trial court viewed in making its determination of voluntariness under the totality of the circumstances. Thus, this Court is unable to determine whether the trial court erred, since the record fails to indicate exactly which facts and circumstances the trial court considered in determining whether the confession was voluntary.

¶ 12. The State bears the burden of establishing voluntariness beyond a reasonable doubt as determined by the totality of the circumstances. Scott, 8 So.3d at 861. That burden includes being certain that the evidence to be considered on the issue of voluntariness is properly placed in the record. See, e.g., Short v. State, 929 So.2d 420, 426 (Miss.Ct.App.2006). Under the facts of this case, that included any portions of the confession actually viewed by the trial court. The record before this Court does not allow us to judge whether the State carried that burden because it lacks any indication of the basis for the trial court’s decision. Therefore, we reverse and remand the judgment of the Madison County Circuit Court for a new trial. Also, because the Court of Appeals affirmed the judgment erroneously, we reverse the judgment of the Court of Appeals.

CONCLUSION

¶ 13. The record made at the suppression hearing is insufficient to determine the basis upon which the trial court denied Tard’s motion to suppress. For this reason, the judgments of the Court of Appeals and of the Madison County Circuit Court are reversed, and the case is remanded to the circuit court for a new trial.

¶ 14. REVERSED AND REMANDED.

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

      . The hearing transcript, produced in full, merely states that the court went "off the record” to view the videotape, and the court made no statements on the record as to which portion or portions of the videotape it viewed.

      . Because the State had violated an order to exclude mention of other crimes, the trial court declared a mistrial on December 29, 2008. A second mistrial was declared on February 2, 2009, after a nonparty lawyer entered the courtroom and had a conversation with a selected juror.

      . The suppression hearing was held prior to the first trial. At the third trial, the trial court did not review the previously filed motion to suppress Tard’s statement, proceeding under its original ruling on the motion.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: CHANDLER, Justice,

text:
    Martin L. PIERCE v. Star L. PIERCE.
    No. 2012-CA-01966-SCT.
    Supreme Court of Mississippi.
    Feb. 20, 2014.

      Patricia Peterson Smith, attorney for appellant.
    William E. Tisdale, attorney for appel-lee.
    Before DICKINSON, P.J., LAMAR and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. Martin and Star Pierce were married in Mississippi on October 8, 2000, and divorced by order of a Washington state court on July 24, 2007. Because the Washington court lacked personal jurisdiction over Star, it did not divide the parties’ assets. Subsequently, Martin brought an action in the Second Judicial District of the Chancery Court of Harrison County requesting sale of the parties’ Biloxi home and determination of the parties’ financial obligations incurred during the marriage. Star filed a counterclaim requesting equitable distribution of the marital assets, alimony, and attorney’s fees. The chancellor equitably divided the parties’ assets and awarded Star alimony and attorney’s fees. Martin appealed the chancellor’s judgment, and the Court of Appeals reversed the property division and remanded for further proceedings.

¶ 2. On remand, Martin raised two jurisdictional challenges for the first time. First, he argued that the Washington judgment was res judicata as to Star’s claims for equitable distribution and alimony; therefore, the chancery court lacked subject-matter jurisdiction to divide the parties’ assets. Second, he argued that, because he never consented to the chancery court’s jurisdiction, the chancery court lacked personal jurisdiction to divide his military retirement benefits under the Federal Uniformed Services Former Spouse Protection Act (FUSFSPA). See 10 U.S.C.A. § 1408(c) (2006). The chancery court found that it had subject-matter jurisdiction to divide the parties’ assets and personal jurisdiction over Martin under the FUSFSPA. The chancery court ordered the sale of the marital home, with the equity to be divided equally between the parties, and awarded Star a pro rata share of Martin’s military retirement accumulated during the marriage, half of Martin’s thrift savings plan accumulated during the marriage, rehabilitative alimony, and attorney’s fees. Martin renews his jurisdictional arguments on appeal and challenges the property division and award of rehabilitative alimony. He argues he was entitled to attorney’s fees and that the chancellor should have denied Star’s request for attorney’s fees as a sanction.

¶ 3. We find that, because the Washington court lacked personal jurisdiction over Star and had no authority to divide the parties’ assets, its judgment had no res judicata effect on property division, and the chancery court had subject-matter jurisdiction to equitably divide the parties’ property. We also find that Martin consented to the personal jurisdiction of the chancery court under the FUSFSPA by making a general appearance and trying the issue of property division through appeal without ever challenging personal jurisdiction. We further find that the chancellor did not abuse his discretion in equitably dividing the parties’ assets and in awarding Star rehabilitative alimony. We find that Martin was not entitled to attorney’s fees and his sanctions argument is procedurally barred. Therefore, we affirm.

FACTS

¶ 4. When Martin and Star were married, Martin was enlisted in the United States Navy. During the marriage, the Navy stationed Martin at several locations around the country, and he attended several training schools. Martin testified that dependents were discouraged from living at some of these locations. With the exception of Fallon, Nevada, Star did not live with Martin at any of these locations. Star testified that she suffered from numerous medical conditions including Crohn’s disease, kidney disease, endome-triosis, and arthritis. She testified that she had Crohn’s disease and kidney disease before the parties were married, and that Martin had been aware of these conditions. Star never worked or attended school during the marriage, but she kept the house clean and paid the bills. No children were born of the marriage, but Star had custody of Kayla, her daughter from a previous relationship.

¶ 5. Beginning in 2001, Martin was stationed in Fallon, Nevada, for three years, where he lived with Star and Kayla. After two years, Star decided to move back to Mississippi with Kayla. She testified that she moved because she needed a hysterectomy and needed to be closer to medical providers. Martin testified that Star returned to Mississippi because she was homesick and missed her family. The parties never lived together again after Star’s move to Mississippi. After Star’s hysterectomy, they bought a home in Biloxi. Star and Kayla lived in the home, and Martin, now stationed in Jacksonville, Florida, visited on weekends. Although the home was titled in the names of Martin and Star, Martin paid the mortgage and all other household expenses.

¶ 6. In 2005, Martin was transferred to Whidbey Island, Washington. Shortly thereafter, he was deployed to Japan for six months and then returned to Whidbey Island. In May 2006, Martin called Star and said he wanted a divorce. The parties agree that May 2006 was the date of separation. After the separation, Martin continued sending Star money for household expenses. Once Martin had established residency in Washington, he filed for divorce. Martin served Star with process, but she did not appear in the Washington proceeding. On July 24, 2007, the Washington court granted the divorce. The court declined to consider property division, stating “[s]ince the court does not have personal jurisdiction over [Star], the court cannot make any award of property or debts.”

¶ 7. On January 11, 2008, Martin filed a “Complaint to Adjudicate Real and Personal Property Rights and for Eviction of the Defendant” in the Second Judicial District of the Chancery Court of Harrison County. Martin asserted that he and Star had been divorced by order of a Washington court and attached a copy of the Washington divorce decree. Martin requested right, title, and possession of the marital home, that he be permitted to enter the home and recover his personal property, that the court determine the parties’ marital debt obligations, and that the court order Star to pay for any damage to the home. Star filed an answer and counterclaim for equitable distribution. She requested, inter alia, an equitable share of the marital assets, possession and title of the marital home, periodic and lump-sum alimony, an order for Martin to pay all marital debts, a pro rata share of Martin’s military retirement, to be named as the beneficiary of his Survivor’s Benefits Annuity, and reasonable attorney’s fees.

¶ 8. A hearing occurred on September 25, 2008. Martin testified that he had remarried on November 15, 2007. Although he met his current wife when deployed to Japan, he testified that they did not engage in sexual relations until after his separation from Star in May 2006. Star testified that she worked as a substitute teacher and a cashier at McDonald’s. Star maintained that her illnesses prevented her from working full-time and that she was applying for disability. On December 23, 2008, the chancellor awarded Star possession of the marital home until she remarried or Kayla graduated from high school, sixty-five percent of Martin’s military retirement that accrued during the marriage, half of Martin’s thrift savings plan that accrued during the marriage, Martin’s military Survivor’s Benefits Annuity, $500 in permanent periodic alimony, $700 in periodic alimony to pay the mortgage, taxes, and insurance on the home, and Star’s attorney’s fees.

¶ 9. Martin appealed. He argued that the chancellor’s equitable distribution excessively rewarded Star and constituted an abuse of discretion, that the chancellor had abused his discretion by awarding Star periodic alimony, and that the chancellor erroneously had awarded Star the marital home contingent on a child-related event. The Court of Appeals found that the chancellor did not manifestly err “in considering the parties’ earning capacities and future needs” and that the award of attorney’s fees was reasonable. Pierce v. Pierce, 42 So.3d 658, 664 (Miss.Ct.App.2010). Nonetheless, the Court of Appeals found that the property division had to be reversed because the chancellor had failed to make any fact-findings on Star’s contributions before awarding Star both the Survivor’s Benefits Annuity and sixty-five percent of Martin’s military retirement account. The Court of Appeals held that the lack of fact-finding supporting the Surviv- or’s Benefits Annuity award and the military retirement award mandated reversal. And because “property division and alimony awards should be considered together,” the court reversed those awards. The court also found that the chancellor erroneously had conditioned the alimony award on an event in the life of Star’s daughter, which amounted to an order for Martin to pay child support for a stepchild. The court stated that, due to the reversal of the property division and alimony awards, the chancellor also could revisit the award of attorney’s fees on remand.

¶ 10. A second hearing occurred before the chancellor on May 7-8, 2012. Star testified that she continued to suffer from illnesses which hade prevented her from working full-time. She testified that her doctors had advised that her conditions would get worse and that she should seek disability. She testified that she had quit working entirely to qualify for disability, and that her sources of income included food stamps and money from her mother and churches. Star did not produce any medical testimony supporting her claim that she could not work and had been advised to seek disability. She testified that her disability application had been denied, and that she was awaiting a decision on appeal. Martin testified that, since the chancery court’s original judgment, he had paid more than $78,000 in alimony and mortgage payments. He admitted that he had ceased paying Star alimony or consistently making the mortgage payments since the Court of Appeals’ August 24, 2010, judgment reversing the alimony award.

¶ 11. The chancellor concluded that Star refused to work and that Martin was the sole party with earning capacity. The chancellor ordered that the marital home be sold, with the net proceeds to be divided equally. The chancellor also awarded Star half of the funds in the thrift savings plan accrued during the marriage and half of Martin’s military retirement benefits accrued during the marriage. The chancellor awarded Star $500 per month in rehabilitative alimony for sixty months and reasonable attorney’s fees.

STANDARD OF REVIEW

¶ 12. This Court will not disturb the decision of a chancellor that is supported by substantial evidence unless the chancellor’s decision was manifestly wrong, clearly erroneous, or an incorrect legal standard was applied. Rogillio v. Rogillio, 101 So.3d 150, 153 (Miss.2012). We apply de novo review to issues of personal and subject-matter jurisdiction. Baker & McKenzie, LLP v. Evans, 123 So.3d 387, 404 (Miss.2013); Alford v. Miss. Div. of Medicaid, 30 So.3d 1212, 1217 (Miss.2010).

LAW AND ANALYSIS

I. WHETHER THE CHANCERY COURT HAD SUBJECT-MATTER JURISDICTION TO PERFORM EQUITABLE DISTRIBUTION AND AWARD ALIMONY.

¶ 13. With his first and third issues, Martin seeks to use the Washington divorce decree as a shield against Star’s counterclaims for equitable distribution and alimony. Martin contends that, because Star was personally served with process in the Washington divorce action but failed to participate in that action, the divorce decree was res judicata as to Star’s claims for equitable distribution and alimony and the chancellor lacked subject-matter jurisdiction over the claims. Martin contends that a Mississippi court cannot determine property division or alimony outside of a divorce proceeding unless the Mississippi court granted the divorce and retained jurisdiction.

¶ 14. This case presents the question of whether a foreign divorce decree will bar litigation of property division and alimony in a separate action in this state. The doctrine of res judicata “bars all issues that might have been (or could have been) raised and decided in the initial suit, plus all issues that were actually decided in the first cause of action.” Little v. V & G Welding Supply, Inc., 704 So.2d 1336, 1337 (Miss.1997). Martin’s argument is that the chancery court lacked subject-matter jurisdiction over matters that should have been raised in the Washington action. We note that the issue of subject-matter jurisdiction may be raised at any time in the proceedings, including on appeal. Burnette v. Hartford Underwriters Ins. Co., 770 So.2d 948, 951 (Miss.2000); M.R.C.P. 12(h)(3).

¶ 15. Two cases with facts strikingly similar to the instant case dictate the conclusion that the Washington divorce decree did not bar the chancery court’s adjudication of property division and alimony. In Weiss v. Weiss, 579 So.2d 539, 540 (Miss.1991), the husband, a Louisiana resident, filed for divorce in Louisiana, and the wife, a Mississippi resident, filed a claim for separate maintenance in Mississippi. The Louisiana court granted the divorce. Id. Subsequently, the Mississippi court awarded periodic alimony payments. Id. The husband challenged the alimony award, arguing that the Louisiana divorce decree barred litigation of alimony in Mississippi. Id. This Court held that, regardless of whether a divorce decree is entered in a Mississippi court or a foreign court, litigation of divorce and alimony are divisible. Id. The Court stated that, “Mississippi law is clear that where ‘the case in the foreign court is not decided on its merits, while suit might be barred from any other court in the state where the judgment was rendered it is not res judicata’ in Mississippi.” Id. at 541 (quoting Lee v. Swain Bldg. Materials Co., 529 So.2d 188, 190 (Miss.1988)). Because the issue of alimony had been dismissed by the Louisiana court and had not been litigated, this Court held that the Louisiana divorce decree was not res judicata as to the alimony claim and the Mississippi court had jurisdiction to award alimony. Id.

¶ 16. The Court of Appeals addressed this issue in further detail in Lofton v. Lofton, 924 So.2d 596 (Miss.Ct.App.2006). The wife, a Mississippi resident, filed a complaint for divorce and separate maintenance in Mississippi, and the chancery court ordered separate maintenance. Id. at 598. Then, the husband, a Florida resident, filed for divorce in Florida. Id. The wife was served with process but did not appear in the Florida action. Id. The Florida court granted the divorce but did not adjudicate property division or alimony. Id. The husband then filed a petition in the Mississippi court to dismiss his obligation to pay separate maintenance. Id. In light of the fact the parties were now divorced, the chancery court modified the separate-maintenance payment to alimony. Id. at 599.

¶ 17. The husband appealed, arguing that, because the wife had not pursued her alimony claim in the Florida action, the Florida divorce decree operated as res judicata to the claim. Id. The Court of Appeals cited Estin v. Estin, 334 U.S. 541, 549, 68 S.Ct. 1213, 1218, 92 L.Ed. 1561 (1948), which held that, under the Full Faith and Credit Clause, a husband’s Nevada divorce action was divisible from a New York alimony order because the Nevada court had lacked personal jurisdiction over the wife and could not have addressed the issue of alimony. Id. at 601 (citing Estin, 334 U.S. at 547, 68 S.Ct. at 1213). The Court of Appeals also cited Weiss for the proposition that a foreign decree will not operate as res judicata in Mississippi if the case was not decided on the merits. Lofton, 924 So.2d at 602 (citing Weiss, 579 So.2d at 541). From this precedent, the Court of Appeals found that the Florida decree would bar the alimony claim if the Florida court had personal jurisdiction over the wife and had adjudicated the alimony claim. Lofton, 924 So.2d at 602.

¶ 18. The Court of Appeals held that, under Florida law, the Florida court had lacked personal jurisdiction over the wife because she had not generally appeared in the action. Id. at 603. Therefore, while the husband’s residence in Florida had enabled the Florida court to grant a divorce, the court’s lack of personal jurisdiction over the wife prevented its adjudication of personal rights, such as property division and alimony. Id. at 601-04. Because the Florida court had lacked personal jurisdiction over the wife, its judgment was not res judicata as to her alimony claim. Id. at 604.

¶ 19. Turning to the instant case, the parties do not dispute that the Washington court had subject-matter jurisdiction to grant Martin a divorce. See Williams v. North Carolina, 317 U.S. 287, 298-99, 63 S.Ct. 207, 213, 87 L.Ed. 279 (1942) (holding that a state has subject matter jurisdiction to grant a divorce if one of the spouses is domiciled in the state). But the Washington court held that it lacked personal jurisdiction over Star and, therefore, it could not “make any award of property or debts.” Indeed, a court granting a divorce cannot perform property division if it lacks personal jurisdiction over one of the parties. Estin, 334 U.S. at 549, 68 S.Ct. at 1218. Because the Washington court lacked personal jurisdiction over Star and had no authority to divide the parties’ assets, the Washington divorce decree was not res judicata as to Star’s counterclaim for equitable distribution and alimony. The chancery court had subject-matter jurisdiction over these claims.

II. WHETHER THE CHANCERY COURT HAD PERSONAL JURISDICTION TO DIVIDE MARTIN’S MILITARY RETIREMENT BENEFITS UNDER THE FUSFSPA.

¶ 20. The chancery court awarded Star half of the military retirement benefits which Martin had accumulated during the marriage. Martin argues that, under the FUSFSPA, the chancery court lacked jurisdiction to divide his military benefits. The FUSFSPA was enacted in 1982 to give states the authority to determine the rights of a former spouse in a retired service person’s military pension. Petters v. Petters, 560 So.2d 722, 725 (Miss.1990). To limit forum-shopping and to prevent service persons from having to defend their retirement pensions in foreign forums, the FUSFSPA includes specific requirements for obtaining personal jurisdiction over a service person. Petters, 560 So.2d at 726; 10 U.S.C.A. § 1408(c)(4) (2006). In Petters, this Court recognized that, under the Supremacy Clause of the United States Constitution, the FUSFS-PA’s jurisdictional provisions override this state’s long-arm statutes “to the extent that the state’s law would exceed the limitations of the federal enactment.” Petters, 560 So.2d at 725.

¶ 21. Section 1408(c)(4) of the FUSFS-PA imposes the following jurisdictional limitations:

A court may not treat the disposable retired pay of a member in the manner described in paragraph (1) unless the court has jurisdiction over the member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court.

10 U.S.C.A. § 1408(c)(4) (2006). It is undisputed that Martin neither resides, nor is domiciled, in Mississippi and that the sole route to personal jurisdiction over Martin is a finding that he consented to jurisdiction under subsection (C). The chancery court found that Martin had consented to jurisdiction by filing his complaint.

¶ 22. This Court has not squarely addressed the issue of what acts constitute consent to personal jurisdiction under Section 1408(c)(4). Other states have held that consent by a military spouse may be express or implied, and that a general appearance coupled with a failure to timely object to personal jurisdiction constitute implied consent under Section 1408(c)(4)(C). Judkins v. Judkins, 113 N.C.App. 734, 441 S.E.2d 139, 140 (1994); Kildea v. Kildea, 143 Wis.2d 108, 420 N.W.2d 391, 394 (1988); Southern v. Glenn, 677 S.W.2d 576, 583 (Tex.App.1984). In Petters, we stated that “the protections of Section 1408(c)(4), like other limitations on a state’s authority to acquire personal jurisdiction, may be waived.” Petters, 560 So.2d at 726. Although waiver was not at issue in Petters, we indicated that a waiver could be accomplished through a general appearance or “anything else which might be construed as a present waiver.” Id. We recognized that “[ojther states have recognized this waiver doctrine in cases where the defendant entered a general appearance or waived the service of process upon him.” Id.

¶ 23. Characterizing his complaint as one for partition, Martin argues that his invocation of the jurisdiction of the chancery court was limited to his claim for sale of the house and he did not consent to personal jurisdiction for Star’s counterclaim for equitable distribution of his military benefits. Martin is incorrect. It is well-established “that by filing suit a plaintiff automatically waives any objections he might otherwise have on grounds of personal jurisdiction to counterclaims presented against him in the suit.” Sweetheart Plastics, Inc. v. Illinois Tool Works, Inc., 286 F.Supp. 62 (D.Ill.1968) (citing Leman v. Krentler-Arnold Hinge Last Co., 284 U.S. 448, 451, 52 S.Ct. 238, 239, 76 L.Ed. 389 (1932)). By filing suit requesting sale of the marital home and division of marital debts in Mississippi, Martin voluntarily subjected himself to Star’s compulsory counterclaim for equitable distribution. M.R.C.P. 13(a). Moreover, with his complaint, Martin made a general appearance. “A general appearance is one whereby [a party] submits his person to the jurisdiction of the court by invoking the judgment of the court in any manner on any question other than that of the jurisdiction of the court over his person.” Judkins, 441 S.E.2d at 140 (quoting In re Blalock, 233 N.C. 493, 64 S.E.2d 848, 856 (1951)). Finally, Martin waived any personal-jurisdiction argument by failing to make a timely objection. He did not raise the argument until after the case had been tried, appealed, and remanded. In Martin’s first appeal, he never challenged the chancery court’s jurisdiction to divide his military benefits; rather, he characterized his complaint as one for equitable distribution and argued that the amount of the award of retirement benefits was inequitable. He requested that the case be remanded for “an appropriate and equitable analysis of all issues relating to property division, alimony, and attorney’s fees.” It was only on remand, with new counsel, that Martin first raised the issue of personal jurisdiction. The record plainly reflects that Martin’s actions constituted consent to personal jurisdiction under Section 1408(c)(4).

III. WHETHER THE CHANCELLOR ERRONEOUSLY AWARDED STAR HALF THE EQUITY IN THE MARITAL HOME AND ALIMONY.

¶ 24. Martin argues that the chancellor erred by ordering the parties to split the equity in the marital home after its sale and in awarding Star alimony.

A. Equitable distribution

¶ 25. Pursuant to Ferguson v. Ferguson, the chancellor must equitably divide the marital property using the following guidelines, if applicable:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
8. Any other factor which in equity should be considered.

Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). If the equitable distribution, considered along with each party’s non-marital assets, leaves one party with a deficit, then the court should consider alimony. Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994). “Alimony and equitable distribution are distinct concepts, but together they command the entire field of financial settlement of divorce. Therefore, where one expands, the other must recede.” Ferguson, 639 So.2d at 929.

¶ 26. The chancellor made findings on each Ferguson factor before dividing the marital assets. Under the first factor, the chancellor found that Star had not worked outside the marital home or pursued an education and had not contributed financially to the accumulation of marital assets. However, the chancellor applied the presumption that a nonworking spouse contributes equally to the accumulation of marital assets. See Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994). The chancellor found that neither party had contributed to the stability of the marriage, finding that Star had left Martin to return to Mississippi, and Martin had not encouraged Star to accompany him to those duty stations that welcomed dependants. The chancellor found that Star had wasted marital assets by taking $9,000 from a joint account upon learning of the pending divorce, and that Martin had paid $78,000 in alimony and house payments since the court’s original judgment. The chancellor found Star had an emotional attachment to the marital home, but that she could not make the mortgage payments. Regarding the extent to which property division could eliminate periodic payments and friction, the chancellor found that Star refused to work. Regarding the parties’ respective need for financial security, the chancellor recognized that Martin was the sole party with earning capacity, while Star was “waiting on the system to take care of her.” But the chancellor also recognized that Star suffered from a number of ailments and that, since the divorce, she no longer had military medical benefits, though she qualified for Medicaid. The chancellor found that there was no testimony as to the value of assets not ordinarily subject to distribution or tax consequences or consequences to third parties, or on other factors.

¶ 27. After making these detailed findings, the chancellor awarded Star half the equity in the home upon its sale, estimated at $8,000 to $9,000. The chancellor awarded Star half of Martin’s military retirement benefits accumulated during the marriage, noting that the value could not be calculated, and that Martin’s receipt of retirement benefits is conditional upon his completing twenty years of service, which may not occur. The chancellor also awarded Star $7,000, which was half the funds in Martin’s thrift savings plan accumulated during the marriage.

¶ 28. “In reviewing a chancellor’s judgment, this Court does not conduct a Ferguson analysis anew, but reviews the judgment to ensure that the chancellor followed the appropriate standards and did not abuse his discretion.” Phillips v. Phillips, 904 So.2d 999, 1001 (Miss.2004). Martin argues that, because he paid the mortgage on the marital home, the chancellor’s order for the parties to split the equity in the marital home was inequitable. The chancellor valued the equity in the marital home at $8,000 to $9,000, meaning that Star’s award would be $4,000 to $4,500. Star also received $7,000, constituting half of Martin’s thrift savings plan accumulated during the marriage. Star also received half of Martin’s military retirement benefits, which the chancellor was unable to value. The chancellor also awarded Star $500 in rehabilitative alimony for sixty months. These amounts were considerably less than the chancellor had awarded in the original property division, in which he had ordered Martin to pay the mortgage on the marital home, enabling Star to live there, and awarded her sixty-five percent of Martin’s military retirement benefits, his Survivor’s Benefits Annuity, half the thrift savings plan, and $500 in permanent periodic alimony. On remand, the chancellor took both Star’s ailments and her refusal to work into consideration in reducing the amounts she received and in awarding rehabilitative alimony rather than permanent alimony. The chancellor made detailed findings on the Ferguson factors. We find that the chancellor followed the appropriate standards and that the equitable distribution was not an abuse of discretion.

B. Alimony

¶ 29. Martin also argues that, because Star’s testimony about her ailments was not credible, the chancellor abused his discretion in awarding her rehabilitative alimony. Rehabilitative alimony “is an equitable mechanism which allows a party needing assistance to become self-supporting without becoming destitute in the interim.” Hubbard v. Hubbard, 656 So.2d 124, 130 (Miss.1995). It “is not intended as an equalizer between the parties but is for the purpose of allowing the less able party to start anew without being destitute in the interim.” Id. The chancellor also awarded Star $500 per month in rehabilitative alimony after considering the Armstrong factors.

¶ 30. Under Armstrong v. Armstrong, the chancellor must consider the following factors in determining whether alimony should be awarded:

1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at the time of the support determination;
9. The tax consequences of the spousal support order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; or
12. Any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.

Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993).

¶ 31. Applying the Armstrong factors, the chancellor found Martin’s monthly net income to be $5,914, and Star’s to be $367 in food stamps, plus sporadic donations from her mother and churches. The chancellor found that Star’s mother paid her car note. The chancellor found Martin’s monthly expenses to be $6,150,86, including the mortgage payment on the marital home, which was to be sold. Star’s expenses were $1,170 per month, not including the mortgage payment on the marital home. The chancellor found that, because Star possessed only a high-school education, she had limited earning capacity. However, the chancellor found that Star had failed to demonstrate she could not work, and that she had chosen not to work to pursue disability. The chancellor recognized Martin’s financial obligations toward his home in California. The chancellor found the parties’ assets consisted of the home equity of $8,000 and the thrift savings plan of $14,000, and that Star had removed $9,000 from the joint bank account. The chancellor found Star had a minor daughter for whom she received no child support, and that Star’s standard of living had substantially declined, while Martin’s had increased. The chancellor held neither party to be at fault in the divorce, and again noted that Martin had paid $78,000 in alimony and mortgage payments since the original judgment. After making these findings, the chancellor awarded Star $500 per month in rehabilitative alimony for sixty months, with Star to notify the court if she qualified for disabilify.

¶ 32. Martin argues that the chancellor abused his discretion in awarding rehabilitative alimony, because Star’s testimony about her ailments was not credible. He points to a 2011 colonoscopy record that was admitted into evidence showing no evidence of Crohn’s disease. On cross-examination, Star admitted that her doctors had said her Crohn’s disease was in remission, but that she still takes medication for it. Martin argues that Star’s pharmacy records show no prescriptions for that medication. However, Star testified that she received samples of the medication from her physicians because its cost was not covered by Medicaid. Martin argues that this testimony was not credible because, when confronted with Medicaid information showing the medication was covered, Star had no explanation. Martin also disputes Star’s testimony that she had endometriosis, arguing that no endome-triosis should have been present after Star’s hysterectomy.

¶ 33. In his order, the chancellor recognized that Star admitted her 2011 colonos-copy had shown no evidence of Crohn’s. The chancellor further recognized that Star had not proven she was unable to work. The chancellor found that Star had chosen not to work to pursue disability. Star had a high-school education and had not worked during the seven-year marriage. After the divorce, Star had performed part-time, unskilled, minimum-wage jobs. Star testified that, if the marital home was sold, she would have to move in with her mother. Both parties testified about Star’s ailments and treatment for those ailments during the marriage. Obviously, the chancellor balanced the evidence that Star suffered from ailments of which Martin had been aware before the marriage with the fact that Star had failed to prove she was unable to work in deciding not to adopt the original periodic alimony award, but instead awarding rehabilitative alimony. We find that the rehabilitative alimony award was not an abuse of discretion.

IV. WHETHER MARTIN IS ENTITLED TO ATTORNEY’S FEES AND COSTS AND WHETHER THE CHANCELLOR SHOULD HAVE SANCTIONED STAR BY DENYING HER REQUEST FOR ATTORNEY’S FEES.

¶ 34. The chancellor found that Star was unable to pay her attorney’s fees. After considering the appropriate factors under McKee v. McKee, 418 So.2d 764 (Miss.1982), the chancellor awarded Star $4,000 as her reasonable attorney’s fees. Martin makes various arguments concerning attorney’s fees that may be distilled into three complaints: (1) that because the chancery court lacked subject-matter jurisdiction over Star’s claim for equitable distribution, McKee did not apply; (2) that because this is, in reality, a lawsuit for partition and the chancellor ordered the property sold, Martin is entitled to attorney’s fees for a successful partition action under Mississippi Code Section 11-21-81 (Rev.2004); and (8) the chancellor should have sanctioned Star under the Litigation Accountability Act because she misrepresented her financial status to the court at the original hearing. See Miss.Code Ann. § 11-55-5 (Rev.2012).

¶ 35. This Court already has determined that the chancery court had subject-matter jurisdiction to perform an equitable distribution. The chancellor’s order for the house to be sold was part of the equitable distribution. Therefore, the partition statutes have no applicability to this case, and Martin was not entitled to attorney’s fees under Section 11-21-31. We note that, while Martin requested attorney’s fees in his complaint, Martin’s complaint does not mention partition, cite any partition statute, or request attorney’s fees pursuant to a partition. Rather, his complaint requested sale of the marital home and a .determination of the parties’ joint debt obligations from the marriage. Although Martin deems this a partition action in his briefs before this Court, in his first appeal, Martin characterized his complaint as one for equitable distribution.

¶ 36. Martin argues that the chancellor should have sanctioned Star under the Litigation Accountability Act because she misrepresented her financial status to the -court. Specifically, Martin argues that the second hearing was when Star first admitted that she had removed $9,000 from the parties’ joint savings account after Martin had told her he wanted a divorce. Martin contends that, at the first hearing, Star withheld the fact that she had $9,000 with which to pay her attorney. He argues that, when this information was revealed at the second hearing, the chancellor should have sanctioned Star by denying her request for attorney’s fees.

¶ 37. Martin’s argument is procedurally barred, because he never raised it before the chancery court. “Issues raised for the first time on appeal are procedurally barred.” McNeese v. McNeese, 119 So.3d 264, 267 (Miss.2013). And notwithstanding the procedural bar, the argument is without merit. Star did testify about taking the $9,000 at the original hearing. She testified that she used a portion of the funds to pay her attorney and used the rest for living expenses. Therefore, Star did not withhold the information from the chancellor, and the information was before the chancellor when he made the original attorney’s fees award as well as the attorney’s fees award on remand.

CONCLUSION

¶ 38. The chancery court had subject-matter jurisdiction to perform an equitable distribution and award alimony. Because Martin consented to jurisdiction, the chancery court had personal jurisdiction over Martin under the FUSFSPA to equitably divide his military retirement benefits. The chancery court’s equitable distribution and award of rehabilitative alimony did not constitute an abuse of discretion. Finally, Martin was not entitled to attorney’s fees under the partition statute, and his sane-tions issue is procedurally barred. Therefore, we affirm.

¶ 39. AFFIRMED.

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

      . According to Mississippi Code Section 11-21-31, "[i]n all cases of the partition or sale of property for division of proceeds, the court may allow a reasonable attorney's fee to the attorney or the plaintiff, to be taxed as a common charge on all the interests, and to be paid out of the proceeds in case of a sale, and to be a lien on the several parts in case of partition.” Miss.Code Ann. § 11-21-31 (Rev. 2004).