author: MAXWELL, JUSTICE,

text:
    Sheriel F. PERKINS v. Carolyn MCADAMS
    NO. 2016-EC-00407-SCT
    Supreme Court of Mississippi.
    10/19/2017

      WILLIE JAMES PERKINS, SR., ATTORNEY FOR APPELLANT.
    KATHLEEN ELIZABETH CAR-RINGTON MARK W. GARRIGA LEMUEL E. MONTGOMERY, III, ATTORNEYS FOR APPELLEE.
    BEFORE WALLER, C.J., KING AND MAXWELL, JJ.
   MAXWELL, JUSTICE,

FOR THE COURT:

¶ 1. Sheriel F. Perkins lost the 2013 Greenwood mayoral race by 206 votes. She filed an election contest against the winner, Mayor Carolyn McAdams. In her complaint, Perkins alleged illegal voting and fraud. But at trial, the only evidence she produced was that fifty-two absentee ballots were wrongly counted and one absentee ballot and nine affidavit ballots were wrongly rejected. Her other claims of illegal voting and fraud had no evidentiary support. Thus, the trial court granted Mc-Adams’s motion for a directed verdict and entered a judgment in McAdams’s favor.

¶2. Though Perkins appealed, the contested mayoral term ended June 30, 2017. So her appeal is now moot. Conceding mootness, Perkins still insists we should consider the merits of her illegal-voting claim under the public-interest exception to the mootness doctrine. However, Perkins presented no evidence that anyone voted illegally in a precinct outside of his or her residence. Rather, according to her own witnesses, it was the election materials — not the voters — that ended up in the wrong precincts. And Mississippi statutory law is clear that misdelivery of election materials shall not prevent the holding of an election. Instead, poll managers should provide a suitable substitute procedure, which is exactly what occurred here.

¶ 3. Because the Legislature has already clearly spoken on this issue, there is no need to apply the public-interest exception to the mootness doctrine and address the merits of Perkins’s appeal. We therefore dismiss Perkins’s appeal as moot.

¶4. McAdams has cross-appealed, raising two attorney’s fees issues that are not moot. For reasons explained below, we affirm the trial court’s denial of Mc-Adams’s motion to alter the judgment to include a sanction of attorney’s fees. But we reverse and remand the trial court’s award of $6,440 in attorney’s fees to Perkins.

Background Facts and Procedural History

¶ 5. On June 4, 2013, the City of Greenwood, Mississippi, held a general mayoral election. There were two candidates: Perkins and McAdams. When all votes were counted, McAdams received 2,618 votes to Perkins’s 2,412.

I. Complaint

¶ 6. Perkins sued McAdams in the Circuit Court of Leflore County on June 24, 2013 — exactly twenty days after the election. She claimed she had won the majority of legal votes. She requested a jury trial on the merits of the election contest at the earliest date practicable. And, based on the outcome of that trial, she asked to be declared the winner of the 2013 Greenwood mayoral race and that McAdams be removed from office. Alternatively, she sought a special election.

¶ 7. The thirteen-count complaint not only brought a Section 23-15-951 election contest but also asserted several other state and federal claims. Because of the federal claims, McAdams removed the action to federal court. In response, Perkins moved to amend her complaint to drop the federal claims. The federal court remanded this action to the Leflore County Circuit Court in October 2014. Her amended complaint still alleged multiple state-election-law violations and fraud. It also called into question the legality of hundreds of votes cast.

II, Motion for Summary Judgment

¶ 8. Two months after remand, Mc-Adams filed for summary judgment. Following a hearing, the trial court denied this motion on May 20, 2015. The court found Perkins had “raise[d] sufficient issues that are genuine to this dispute,” which “if proved by proper evidence, could possibly change the results of the Mayoral Election or could possibly prove the will of the electorate had been frustrated.” The court’s order expressly reserved consideration of costs until a “final hearing of this cause.”

III. Trial

¶ 9. The jury trial for Perkins’s election contest began on September 28, 2015. During Perkins’s opening statement, her counsel asserted the evidence would show:

(1) the pollbooks and voter-recéipt books for'Wards 1 and 2 were-put in the wrong place, leading to 295 Ward 1 residents voting illegally in Ward 2, and 139 Ward 2 residents voting illegally in Ward 1;
(2) fifty-eight absentee ballots were improperly counted, one absentee ballot was improperly rejected, and • thirty-four affidavit ballots were improperly rejected;
(3) four nonresidents “returned” to Greenwood and voted; and '
(4) two residents, Walter Hunter and . Andre Williams, only vbted for Mc-Adams because, in Hunter’s case, McAdams directed the city to install a culvert on his property and, in Williams’s case, she paid his mother’s bills.

¶ 10. Perkins called fourteen witnesses, including McAdams, who was called adversely. At the close of Perkins’s evidence, McAdams moved for a directed verdict. Going through Perkins’s complaint count-by-count, she argued each claim either had been abandoned or unproven. Specifically, McAdams argued Perkins failed to support her allegations that Ward 1 residents voted in Ward 2 and vice versa, that nonresidents voted, or that McAdams fraudulently compensated voters. McAdams did concede one absentee ballot should have been counted and fifty-two nonconforming absentee ballots should not have been counted. McAdams further acknowledged that Perkins at least presented evidence that nine affidavit ballots had been wrongfully rejected. But still, given those concessions, that accounts for only sixty-two votes. And sixty-two votes were not enough to affect the outcome of the election, which Mc-Adams won by 206 votes.

¶ 11. The court granted McAdams’s motion for a directed verdict, finding Perkins had failed to make out a prima facie case on any claim in her amended complaint,

¶ 12. Before the court adjourned, Perkins noted there was one final matter — the recovery of attorney’s fees based on Mc-Adams’s unsuccessful motion for summary judgment. See M.R.O.P. 56(h). McAdams argued against the court granting a discretionary attorney’s-fee award, in light of what happened at trial. But the court responded Rule 56 mandated the award ,of attorney’s fees. But see M.R.C.P. 56. __ ,

IV. Pinal Judgment

¶ 13. On October 19, 2015, the court entered an order dismissing Perkins’s complaint with prejudice. That same.day, the court entered an order granting Per-, kins’s pending motion for $6,440 in attor-' nejfs fees — the cost of defending the motion for summary judgment.

¶ 14. Four days later, McAdams filed a Rule 59(e) motion to amend the judgment. See M.R.C.P. 59(e). Citing Mississippi Rule of Civil Procedure 11, McAdams requested the court add to its judgment the assessment of costs and fees against Perkins based on her “frivolous” claims. After a hearing, the court denied this motion.

¶ 15. On February 18, 2016, the court entered its final judgment. Perkins timely filed a notice of appeal, and McAdams cross-appealed.

Perkins’s Appeal: Directed Verdict

¶ 16. On appeal, Perkins argues the trial court erred by granting McAdams a directed verdict. But because the mayoral term she sought has ended, Perkins concedes there is no relief now available to her. So her appeal is moot. See Misso v. Oliver, 666 So.2d 1366, 1369 (Miss. 1996) (“This case is moot because even if Misso persuades us that the trial court erred,' it is impossible to reinstate Misso, or hold another special election, since the general election has since been held.”).

¶ 17. Perkins asks us to consider the merits of her appeal under the public-interest exception .to the , mootness doctrine. See Sartin v. Barlow, 196 Miss. 159, 169-70, 16 So.2d 372, 376 (1944). She asserts a. decision by this Court is necessary to resolve “the central underlying issue” she raises on appeal — “whether a voter can legally cast a. vote in a precinct other than that of his or. her residence.”

¶ 18. This Court’s rule against advisory opinions extends to election contests. Sheldon v. Ladner, 205 Miss. 264, 269-70, 38 So.2d 718, 719 (1949). However, because the speed of the judicial process is often slower than the election process, this Court recognizes “election cases often present questions ‘capable of repetition, yet evading review.’ ” Misso, 666 So.2d at 1369 (quoting Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed. 2d 1 (1969)). So in Sartin, this Court made “an exception to the' general rule as respects moot cases, when the question concerns a matter of such a nature that it would be distinctly detrimental to the public interest that there should be a failure by the dismissal to declare and enforce a rule for future conduct.” Sartin, 196 Miss. at 170, 16 So.2d at 376, We applied that exception again in Misso, because “the need for resolution reflect[edj a continuing controversy in the election area and this appeal [wa]s one of public interest.” Misso, 666 So.2d at 1369. Here, by contrast, the compelling need to stop a corrupt practice, as in Sartin, or to provide much needed clarity for future elections, as in Misso, is not present. Instead, clear statutory law governs the main election-related issue Perkins raises on appeal, leaving no need to address the moot appeal,

¶ 19. Citing Mississippi Code Section 23-15-11, Perkins insists the law requires a voter to vote in his or her respective voting precinct. See Miss. Code Ann. § 23-15-11 (Rev. 2015) (qualifying voter to vote in precinct of his or her residence); see also Miss. Code Ann. § 23-15-571(3)(a) (Rev. 2015) (providing grounds to challenge a vote because “the voter is not a registered voter in that precinct”). We agree. Section 23-15-11 appears to qualify a voter to vote in his or her precinct only.

¶ 20. But we disagree with Perkins that she presented evidence to the tidal court that hundreds voted illegally in Wards 1 and 2 the morning of the election. Perkins presented two witnesses — Rosetta Harris, Perkins’s pollwatcher for Ward 1, and State Senator Derrick Terrell Simmons, Perkins’s pollwatcher for Ward 2. Both testified there was chaos and confusion when the polls opened the morning of the election. Apparently, voters could not find their names on the pollbooks. So Ward 1 voters went down the street to the nearby Ward 2 polling station. Finding their names on the books there, they signed the book, obtained receipts, and returned to their own precincts with their receipts to vote. The same was true for Ward 2 voters, who went to Ward 1, signed the book, obtained receipts, and returned to vote. According to Harris and Senator Simmons, this procedure lasted about two hours, when election managers swapped the election materials to their proper polling stations. At that point, more than 400 votes had been cast in these two precincts.

¶ 21. Importantly, neither witness testified any Ward 1 or 2 voters voted in the wrong precinct. Viewed favorably, Perkins’s evidence showed it was the poll-books, not the voters, that were in the wrong precinct for the first two hours the polls were open.

¶ 22. Perkins contends this mishap vitiates every vote cast until the error was corrected. But that is not-what our law says. According to clear statute, this irregular procedure did not render the votes cast illegal. When a mishap occurs with the delivery of election boxes, the Legislature mandates the election must proceed as well as possible. According to Mississippi Code Section 23-15-249:

The failure to distribute to the different voting places the pollbooks containing the alphabetical list of voters, or the ballot boxes provided for, shall not prevent the holding of an election, but in such case the poll managers shall proceed to hold the election without the books and ballot boxes, and shall provide some suitable substitute for the ballot boxes, and conform as nearly as possible to the law in the reception and disposition of the official ballots.

Thus, when the Wards 1 and 2 poll managers realized the election boxes had been misdelivered, by proceeding with the election, they were complying with Section 23-15-249. And by directing voters to go next door and sign the pollbook and obtain a receipt before returning to vote, the poll managers “provided[d] some suitable substitute for the ballot boxes.” In light of the circumstances, they “conform[ed] as nearly as possible to the law in the reception and disposition of the official ballots.” Miss. Code Ann. 23-15-249. Thus, under Section 23-15-249, the votes cast during this time period were not illegal.

¶ 23. So unlike Misso, where this Court found the relevant statutes were “silent,” here, the Legislature has clearly spoken through Section 23-15-249. Thus, the law is already established and there is no compelling need for this Court to “declare and enforce a rule for future conduct.” Sartin, 196 Miss. at 170, 16 So.2d at 376.

¶24. We, therefore, dismiss Perkins’s appeal as moot.

McAdams’s Cross-Appeal: Attorney’s Fees

¶ 25. McAdams’s cross-appeal is not moot. She raises two issues, both related to attorney’s fees.

I. Rule 11 Motion for Sanctions

¶26. McAdams first asserts the trial court abused its' discretion when it denied her post-trial motion for attorney’s fees. In her motion, McAdams argued Perkins should be sanctioned under Mississippi Rule' of Civil Procedure 11 and/or the Litigation Accountability Act of 1988 because her complaint was “frivolous.” Under Rule 11(b), “If any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay, the court may order such a party, or his attorney,, or both, to pay to the opposing party or parties the reasonable expenses incurred by such other .parties and by their attorneys, including reasonable attorneys’ fees.” M.R.C.P. 11(b). The Litigation Accountability Act similarly authorizes the trial court to include in its judgment an award of attorneys’ fees if-an attorney or party brought an action or asserted -a claim “without substantial justification” or “unnecessarily expanded. the proceedings.”. Miss. Code Ann. § 11-55-5(1) (Rev. 2012).

¶ 27. As a preliminary matter, Mc-Adams suggests the trial court erred by failing to weigh the relevant factors on the record. While Section 11-55-7 does list mandatory factors to consider, this requirement is triggered “[w]hen granting an award of costs and attorney’s fees.” Miss. Code Ann. § 11-55-7 (Rev. 2012). Here, costs and attorney’s fees were denied. So the trial court was under no statutory duty to make on-the-record findings on these factors.

¶ 28. McAdams’s main contention is that the trial court erred when it found Perkins’s complaint was not frivolous. “A pleading or motion is frivolous within the meaning of Rule 11 only when; objectively speaking, the pleader or movant has no hope of success.” Leaf River Forest Prods., Inc. v. Deakle, 661 So.2d 188, 195 (Miss. 1995). A claim that is merely “weak” or “light-headed” does not. meet this definition of frivolous. Id.

¶ 29. In ruling Perkins’s election contest was not frivolous, the trial court focused on the fact “human mistakes [had been] made by the poll workers in arranging the Election Materials for Wards 1 and 2, [and] the information available to Perkins ... at the time of the Complaint.” In other words, the court found Perkins’s claims that the Wards 1 and 2 mixup rendered hundreds of votes illegal—though .too “light-headed” to send to a jury—could not be said to be without hope or viability.

¶ 30. McAdams, by contrast, focuses on Perkins’s other claims—the ones she either abandoned before trial or did not raise on appeal. She argues the trial court failed to recognize these claims were without hope. The fact, however, that these claims turned out to be too “weak” to present to the jury or, once presented, to cause the jury to decide in her favor does not necessarily make them “frivolous.” See Deakle, 661 So.2d at 195. We find this to be especially so in the context of an election contest. By statute, Perkins had only twenty days to inspect the ballot boxes, gather, evidence, and file her petition. See Miss. Code Ann. § 23-15-951 (Rev. 2015). And in finding her petition was not frivolous, the trial court rightly considered the information available to Perkins at the time She filed her contest. And what that information showed is that there had been some confusion in Wards 1 and 2—pre-cincts that heavily favored McAdams—giv-ing Perkins some hope that she may have actually received more legal votes.

¶ 31. For this reason, we find no abuse of discretion and affirm the trial court’s post-trial judgment denying McAdams’s request for sanctions.

II. Rule 56 Award of Attorney’s Fees

¶ 32. Second, McAdams appeals the trial court’s award to Perkins of $6,440 in attorney’s fees—the amount of fees accrued defending against McAdams’s nation for summary judgment. Significantly, this sum represented attorney’s fees, not expenses. Under Rule 56, “If summary judgment is denied the court shall award to the prevailing party the reasonable expenses incurred in attending the hearing of the motion and may, if it finds that the motion is without reasonable causé, award attorneys’ fees.” M.R.C.P. 56(h) (emphasis added).

¶ 33. McAdams contends the trial court erred by finding Rule 56(h) mandated attorney’s fees, not just reasonable expenses. We agree. As the trial judge commented, “I believe [Rule 56] says shall be awarded if you are successful, and I’m of the opinion that the rule demands that I do that, and so it will be ordered .... ” This clearly was a misinterpretation of Rule 56(h). Under Rule 56(h), the “shall” refers only to “reasonable expenses incurred in attending the hearing.” It does not refer to attorney’s fees, which are discretionary and must be based on a “find[ing] that the [summary-judgment] motion is without reasonable cause.”

¶ 34. Here, according to the trial judge, the $6,440 fee award was not based on. finding McAdams’s summary-judgment motion had been without reasonable cause, but instead was based on the erroneous belief such award was mandatory. Therefore, we reverse the $6,440 award and remand this issue to the trial court determine whether McAdams’s summary-judgment motion was “without reasonable cause,” thus justifying a discretionary attorney’s fee award. The trial court shall also award Perkins her “reasonable expenses incurred in attending the [summary-judgment] hearing.” M.R.C.P. 56(h).

Conclusion

¶35. Based on the clear language of Section 23-15-249 and the fact the election managers in Wards 1 and 2 did the best they could after discovering the elections' materials had been misdelivered, there is no issue of illegal voting warranting application of the public-interest exception to the mootness doctrine. Thus, we dismiss Perkins’s appeal as moot.

¶ 36. On cross-appeal, we affirm the post-trial judgment denying McAdams’s request for sanctions but we reverse the post-trial award to Perkins of $6,440 in attorney’s fees and remand the issue of Rule 56(h) costs and fees to the trial court.

¶ 37. ON DIRECT APPEAL: DISMISSED AS MOOT. ON CROSS-APPEAL: AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. .

      . Miss. Code Ann. § 23-15-249 (Rev. 2015).

      . See Miss. Code Ann. § 23-15-951 (Rev. 2015) (permitting "a person desiring to contest the election of another person returned as elected to any office within any county, ... within twenty (20) days after the election, [to] file a petition in the office of the clerk of the circuit court of the county, setting forth the grounds upon which the election is contested”).

      . See M.R.C.P. 56(h) (entitling the prevailing party to the "reasonable expenses in attending the hearing of the motion”).

      . Perkins did not attempt to prove the allegations raised in her complaint that the election commission refused to give statutory voter assistance to African American voters who requested it and that mandatory lock-and-seal requirements were violated.

      . Specifically, the court found no one testified residents of Wards 1 and 2 voted in the wrong precinct; there was no proof "nonresidents voted; and títere was no proof of wrongdoing — by McAdams or anyone else. Instead, the, evidence showed the city fulfilled its duty to provide proper drainage by installing a culvert at a major intersection on city property, which happened to run alongside Hunter’s property. While Hunter benefitted, this is not different from any other citizen benefitting from a public work. Finally, Perkins could not prove her claim McAdams promised to give Williams anything if he voted for her. Instead, in the court’s view, Williams, a young African American, had been unfairly "hopped on” because he publicly supported McAdams, who is white.

      . Sartin involved a circuit clerk’s refusal to allow a primary election contestant to exercise his statutory right to inspect the ballot boxes. The clerk said "he had been directed in writing by the chairman of the County Democratic Executive Committee not to permit the examination.” Sartin, 196 Miss. at 164, 16 So.2d at 374, So the question before the Court was whether the clerk could refuse the inspection at the bidding of a political party.

      . Misso involved the election, commission’s decision to open the sealed election boxes and recount the votes the day after the election. The commission decided to count ballots the election managers had rejected, leading to a different outcome in the election. Misso, 666 So.2d at 1367-68. Misso argued the election commissioners lacked authority to override the election managers. Because the relevant statutes were silent and because “the complained of action will certainly recur,” this Court decided to address the merits of Misso’s moot appeal through the public-interest exception. Id. at 1368-69.

      .The same can be said of the 234 absentee ballots cast in Wards 1 and 2, which Perkins claims were also illegal. According to Harris and another witness, the absentee votes for Wards 1 and 2 were not “counted” at the polling place. Instead, they were sent to the courthouse to be "counted.” Presumably, when Perkins argues the absentee ballots were not "counted” at the polling stations, she means the procedures of Mississippi Code Section 23 — 15—639(2)(a) and (2)(b) (Rev. 2015) to verify and mark ballots as accepted or rejected were not performed in Wards 1 and 2, because Section 23 — 15—639(2)(d) actually requires the accepted ballots to be counted at the central tabulation point. See Miss. Code Ann. § 23-15-639(2) (Rev. 2015). But Perkins fails to show how conducting the procedures of Section 23-15-639(2)(a) and (b) at the courthouse instead of the polling place — if indeed that was what happened — would have so impacted the validity of all absentee ballots cast in Wards' 1 and 2 that must be tossed out. See Fouche v. Ragland, 424 So.2d 559, 562 (Miss. 1982) (refusing to throw out absentee ballots based on a "purely technical ... defect” that did not "affecuthe validity of these [absentee] votes” — especially where "there was no fraud or intentional wrongdoing in •this regard”). Perkins’s evidence, even when viewed favorably, did not. prove any fraud or intentional wrongdoing. See Rogers v. Holder, 636 So.2d 645, 647 (Miss. 1994) (holding that, "absent evidence of fraud or some intentional wrong, technical irregularities will not invalidate an election”). Instead, any irregularity in procedure was due to the misdelivery of the election boxes, which Section 23-15-249 makes clear does not invalidate the election.

      . Misso, 666 So.2d at 1371.

      . See Russell v. Lewis Grocer Co., 552 So.2d 113, 117 (Miss. 1989) (holding that a post-trial motion for sanctions is, in effect, a Rulé 59(e) motion to alter or amend the judgment).


source: Caselaw Access Project

author: RANDOLPH, PRESIDING JUSTICE,

license: Public Domain

text:
    Carla Speights DARNELL v. William Duff DARNELL
    NO. 2016-CA-01573-SCT, NO. 2015-CA-00764-SCT
    Supreme Court of Mississippi.
    10/26/2017

      ATTORNEY FOR APPELLANT: MARK A. CHINN, JACKSON
    ATTORNEY FOR APPELLEE: S. CHRISTOPHER FARRIS, HATTIES-BURG
    BEFORE RANDOLPH, P.L, COLEMAN AND MAXWELL, JJ.
   RANDOLPH, PRESIDING JUSTICE,

FOR THE COURT:

¶ 1. This matter is before this Court after remand with instructions for the chancellor to consider certain statements excluded at trial. Darnell v. Darnell, 167 So.3d 195, 198 (Miss. 2014) (Darnell I). Finding that the chancellor was not manifestly wrong or clearly erroneous in granting physical custody to Duff Darnell, we affirm the amended judgment of the chancellor.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. The facts were summarized in Darnell I and do not bear repeating. In short, Carla and Duff Darnell were married in November 2004; had a child, C.D., in 2006; and separated in September 2010. Carla filed for divorce, and after a three-day ti-ial, the chancellor awarded physical custody to Duff. Carla appealed, and this Court remanded to the chancellor, instructing him to conduct an Albright analysis anew, considering:

two statements made by C.D. to his daycare teacher and principal, which prompted them to report the incidents to the Department of Human Services. The statements were not hearsay, because they were being offered to show their effect on C.D.’s teacher and principal, who acted accordingly.

Darnell I, 167 So.3d at 210. On remand, the chancellor considered the two statements, made new findings of fact and conclusions of law, conducted a complete Al-bright analysis, and specifically addressed why he disagreed with the guardian ad litem’s (GAL’s) recommendations. The chancellor determined that:

it would be in the best interest of the minor child that the parents share joint legal custody of the child, with the child to be in the physical custody of Duff Darnell from the time that school starts in August of 2012, until the school year ends in May or June of 2013, and for each school year thereafter until further order of the Court. The mother shall have standard non-custodial parent visitation, every other weekend.

Carla appealed again.

STATEMENT OF THE ISSUES

¶ 3. Carla raises the following issues on appeal, which have been reordered and restated for clarity:

I. Whether this Court should review the chancellor’s findings de novo based on the findings of the Mississippi Commission on Judicial Performance, No. 2013-083.
II. Whether the chancellor failed to consider the additional admissible evidence as part of his findings of fact and conclusions of law.
III. Whether the chancellor erred in his Albright analysis.
IV. Whether the chancellor erred when he found that C.D. was unavailable under the tender-years exception of the hearsay rule.
V. Whether the chancellor failed to take into account the facts of the case pertaining to child custody at the time of remand.

STANDARD OF REVIEW

¶ 4. The standard of review in domestic-relations cases is well-established:

“When this Court reviews domestic relations matters, our scope of review is limited by the substantial evidence/manifest error rule. Therefore, we will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.”

Darnell I, 167 So.3d at 201 (quoting Giannaris v. Giannaris, 960 So.2d 462, 467 (Miss. 2007) (citations and quotations omitted)).

ANALYSIS

I. Whether this Court should review the chancéllor’s findings de novo based on the findings of the Mississippi Commission on Judicial Performance, No. 2013-083.

¶ 5. Carla fails to cite any authority in support of her argument, and for good reason, as there is none. Her failure precludes consideration on appeal. Blakeney v. McRee, 188 So.3d 1154, 1168 (Miss. 2016), reh’g denied (May 5, 2016) (quoting Matter of Guardianship of Snodgrass, 692 So.2d 85, 87 (Miss. 1997)).

II. Whether the chancellor failed to consider the newly admissible evidence as part of his findings of fact and conclusions of law.

¶ 6. Carla contends that, not only did the chancellor fail to consider.the two statements made by C.D. to his teacher and principal when the chancellor issued his Amended Final Judgment, but that he did not make any specific finding of facts or conclusions of law based on the specific statements.

¶ 7. That argument is without merit, for the chancellor entered a detailed, twenty-nine-page amended final judgment. He addressed the statements made by C.D. to his teacher, Dana Walker, and principal, Machelle Dyess, and Dyess’s testimony regarding those statements. He also considered those statements in conjunction with Dr. Scott Benton’s testimony. He found that no witness who had knowledge of C.D. making- the two specific statements testified that C.D. actually had been abused. No evidence was presented that any sexual abuse occurred. The chancellor stated in his order that he considered the three reports of the GAL, the exhibits,, and testimony of the parties and witnesses at trial. He found that:

the actions of the mother, Carla Darnell, taking visitation away from the father, filing charges with the military against the father, accusing the father of being a child molester, and disparaging the father in the small community where the family resided, coupled with her telling the child that the child should tell everybody that he wants to stay with her and not the father adversely impacts the -minor child..

¶ 8. Based on the record, the chancellor considered the statements and found that those statements did not change the' outcome of his award of custody to Duff. “[T]he chancellor is the finder of fact, and the assessment of witness credibility lies within his sole province.” Carambat v. Carambat, 72 So.3d 505, 510 (Miss. 2011). The chancellor’s findings are supported by substantial evidence; thus he did not manifestly err in that regard.

III. Whether the chancellor erred in his Albright analysis.

¶ 9. On remand, the chancellor addressed each Albright factor and included specific reasons if his conclusion differed from that of the GAL. The chancellor considered the two statements made by C.D. but did not find that either statement.affected his analysis. He. concluded once again that it was in C.D.’s best interest for. Duff to have physical custody of the minor child.

¶10. Where a chancellor has applied the correct legal standard and made findings of fact which are supported by substantial evidence, this Court will not reverse his decision. Touchstone v. Touchstone, 682 So.2d 374, 377 (Miss. 1996). As the record clearly - reflects, the chancellor did consider all Albright factors and made findings of fact in the record with regard to these factors. The chancellor’s decision was supported by the evidence, and it was not an abuse of discretion,

IV. Whether the chancellor erred when he found that C.D. was unavailable under the tender-years exception of the hearsay rule.

¶ 11. While Carla concedes that this Court upheld the chancellor’s findings in its Darnell I opinion, she asks -that this Court reconsider the issue. However, this Court will not reconsider an issue previously ruled upon. This Court has stated that “res judicata is fundamental to the equitable and efficient operation of the judiciary and ‘reflects the refusal of the law to tolerate a multiplicity of litigation.’” EMC Mortg. Corp. v. Carmichael, 17 So.3d 1087, 1090 (Miss. 2009) (internal citations omitted). Carla is barred from relitigating this issue.

V.Whether the chancellor failed to take into account the facts of the case pertaining to child custody at the time of remand.

¶12. On remand, this Court specifically instructed the chancellor to make:

new findings of fact and conclusions of law in which the first two statements made by C.D. to Dyess and Walker are considered. as admissible evidence. Because of the additional evidence, the chancellor also should conduct a new Albright analysis showing the reasons for his ruling, and it would be helpful if he specifically stated why he disagreed with the guardian ad litem’s recommendations.

Id. at 210. This Court did not instruct the chancellor to hold a-new hearing, change his.-findings and conclusions, or consider new evidence of C.D.’s current condition.

¶ 13. Carla, citing Vaughn v. Davis, 36 So.3d 1261 (Miss. 2010), argues that the general rule for remanded child custody cases requires a chancellor to consider the child’s circumstances at the time of remand, rather than at the time of the previous hearing. However, this Court has never made such a pronouncement. This Court specifically instructed the chancellor in Vaughn to consider the minor’s present circumstances, if the chancellor made a determination of desertion. Id. at 1267. No such instruction was given to-today’s chancellor. This issue is without merit.

CONCLUSION

¶ 14. The chancellor was not was manifestly wrong or clearly erroneous and did not apply an erroneous legal standard. We affirm the chancellor’s judgment granting custody of the minor child to Duff.

¶ 15. AFFIRMED.

WALLER, C.J., KITCHENS, P.J., KING, COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      . Albright v. Albright, 437 So.2d 1003 (Miss. 1983).


author: WESTBROOKS, J.,

text:
    Elnora HOLMES and Irma Venson, Appellants v. Teresa GRISBY, Appellee
    NO. 2015-CA-01771-COA
    Court of Appeals of Mississippi.
    6/27/2017
    Rehearing Denied October 17, 2017
    Certiorari Denied January 18, 2018

      ATTORNEYS FOR APPELLANTS: CHARLES M. MERKEL JR., CORRIE SCHULER
    ATTORNEYS FOR APPELLEE: GOODLOE TANKERSLEY LEWIS, AMANDA POVALL TAILYOUR, HAL SCOT SPRAGINS JR.
    BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.
   WESTBROOKS, J.,

FOR THE COURT:

¶ 1. Elnora Holmes and Irma Venson appeal the involuntary dismissal of their civil action for failure to prosecute, pursuant to Mississippi Rule of Civil Procedure 41(b). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On or • about January 28, 2010, Holmes, Venson, and Irma White were traveling south on U.S. Highway 61. They were stopped at a red light when Teresa Grisby allegedly rear-ended their vehicle. Holmes and Venson were residents of Rapids Parish, Louisiana, when the accident occurred. On July 7, 2011, they filed a personal-injury civil suit in the Tunica County Circuit Court.

¶ 3. Holmes and Venson were represented by attorneys Jeremy P. Diamond and Timothy Blalock. On August 8, 2011, Gris-by filed her answer to Holmes and Ven-son’s complaint, and propounded written discovery to them. One hundred and thirty-nine days after responses to Grisby’s discovery were due, Grisby’s trial counsel sent Holmes and Venson a good-faith let-' ter, because their responses to Grisby’s discovery were incomplete. On November 14, 2011, Grisby filed a motion to compel responses to her written discovery requests. On December 8, 2011, Grisby noticed the depositions of Holmes and Ven-son, to be held in Greenville, Mississippi. The depositions were scheduled for January 5, 2012.

¶ 4. On January 13, 2012, Grisby renot-iced the depositions for February 9, 2012, to be held in Greenville, Mississippi. On January 23, 2012, Grisby filed a second renotice of depositions for Holmes and Venson, changing the location of the February 9, 2012 depositions from Greenville to Oxford, Mississippi. The deposition of both Homes and Venson took place on February 9, 2012, in Oxford, Mississippi.

¶ 5. Following Holmes’s and Venson’s depositions, Grisby noticed and set the case for trial for December 4, 2013. On October 21, 2013, the trial court entered an agreed order to continue the trial from December 4, 2013, to an undetermined date. Following that continuance, no other documents were filed, and a new trial date was never set. On December 31, 2014, Grisby filed a motion to dismiss for want of prosecution pursuant to Rule 41(b). Holmes and Venson’s counsel, Diamond and Blalock, did not file a response in opposition to Grisby’s motion. Instead, Holmes and Venson retained Charles M. Merkel Jr. as new counsel. Diamond and Blalock neither filed a motion to withdraw from the matter nor obtained an order from the trial court allowing them to withdraw.

¶ 6. Merkel filed an entry of appearance on behalf of Holmes and Venson on February 25, 2015, two months after Grisby filed her motion to dismiss for want of prosecution. On March 4, 2015, Merkel filed a motion in opposition to Grisby’s motion to dismiss for want of prosecution. On March 25, 2015, Grisby filed a notice of hearing on her motion to dismiss for failure to prosecute. The hearing was set for July 8, 2015. On April 1, 2015, Holmes and Venson noticed the deposition of Grisby for April 10, 2015, at her trial counsel’s office. Grisby’s deposition was taken on April 10, 2015. On August 13, 2015, Grisby filed a second renotice of hearing on her motion to dismiss for failure to prosecute, resetting the hearing for September 29, 2015.

¶ 7. A hearing in chambers was had on the scheduled date. On October 27, 2015, the trial court entered an order granting Grisby’s motion to dismiss for failure to prosecute with prejudice. Holmes and Ven-son now appeal the involuntary dismissal of their claim, on two grounds: (1) their conduct does not illustrate a clear record of delay, nor was it contumacious; and (2) the trial court made no finding whether lesser sanctions would better serve the interests of justice. We find that the trial court did not abuse its discretion in dismissing Holmes and Venson’s cáse for failure to prosecute. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 8. “We employ an abuse-of-discretion standard when reviewing a trial court’s dismissal for failure to prosecute pursuant to Rule 41(b).” Holder v. Orange Grove Med. Specialties P.A., 54 So.3d 192, 196 (¶ 16) (Miss. 2010) (citing Am. Tel. & Tel. v. Days Inn of Winona, 720 So.2d 178, 180 (Miss. 1998)). “Because the law favors a trial of the issues on the merits, a dismissal for lack of prosecution is employed reluctantly,” Id. (citing Miss. Dep’t of Human Servs. v. Guidry, 830 So.2d 628, 632 (Miss. 2002)).

¶9. “The power to dismiss for failure to prosecute is an inherent power in any court of law or equity and has been regarded as a means necessary to control the court’s docket and promote the orderly expedition of justice.” Hensarling v. Holly, 972 So.2d 716, 719-20 (¶ 7) (Miss. Ct. App. 2007) (citing Watson v. Lillard, 493 So.2d 1277, 1278 (Miss. 1986)). We are mindful of the fact that “dismissal with prejudice is an extreme and harsh sanction that deprives a litigant of the opportunity to pursue his claim, and any dismissals with prejudice are reserved for the most egregious cases.” Wallace v. Jones, 572 So.2d 371, 376 (Miss. 1990) (citing Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir. 1982)). “What constitutes failure to prosecute depends-on the facts of the particular case.” Id.

¶ 10. In analyzing the dismissal of a case pursuant to Rule 41(b), the Court first looks- to see if there is “a record of dilatory or contumacious conduct by the plaintiff[.]” State ex rel. Hood v. Louisville Tire Ctr. Inc., 204 So.3d 1250, 124 (¶ 9) (Miss. 2016) (citing Holder, 54 So.3d at 197 (¶ 18)). “Then, the Court determines if lesser sanctions other than dismissal would better serve the interests of justice.” Id. “The Court also may consider aggravating factors or actual prejudice to the defendant, and the presence of the factors or prejudice, though not necessary, may strengthen a case for dismissal.” Id.

DISCUSSION

¶ 11. Holmes and Venson contend that the delay in the prosecution of their matter did not amount to a contumacious action since they had to hire new counsel to continue the prosecution of their case. Holmes and Venson argue that they should have received lesser sanctions in lieu of dismissal. Grisby argues that Holmes and Venson’s year-long hiatus from the prosecution of their action constitutes a contumacious act. As a result, Gris-by maintains that an involuntary dismissal was the appropriate action for Holmes and Venson’s unreasonable delay in the prosecution of then- case.

¶ 12. Grisby also asserts that this court should not consider , if lesser sanctions were more appropriate than dismissal, since Holmes and Venson’s new counsel did not raise the .matter of lesser sanctions during the hearing on the motion to dismiss. “In order to assign error on appeal, the issue must be raised at the trial level or it is waived.” Raines v. Bottrell Ins. Agency Inc., 992 So.2d 642, 647 (¶ 18) (Miss. Ct. App. 2008). Nevertheless, .we will consider the matter of lesser sanctions, as it is necessary to analyze whether lesser sanctions in lieu of dismissal under Rule 41(b) would better serve the interests of justice.

I. Whether the trial court abused its discretion in dismissing the action pursuant to Rule 41(b).

¶ 13. The power to dismiss for failure to prosecute is granted .not only by Rule 41(b), but is part .of a trial court’s inherent authority and is necessary for the orderly expedition. of justice and the court’s control of its own docket. Cox v. Cox, 976 So.2d 869, 874 (¶ 13) (Miss. 2008) (quotations omitted). Because the law favors a trial of the issues on the merits,-a dismissal for lack of prosecution is employed reluctantly. Holder, 54 So.3d at 196 (¶ 16). Holmes and Venson are residents of another state. They hired in-state counsel to pursue their cause of action; yet they failed to meet discovery deadlines or appear at depositions, and allowed their claim to he dormant for more than a year. Holmes and Venson assert that their former attorneys, Diamond and Blalock, failed to adequately pursue the matter, which resulted in the delay in the prosecution of their case.

¶ 14. Holmes and Venson cite Diamond’s and Blalock’s failure to withdraw from this matter as evidence that they were not responsible for the delay in the prosecution of their case. It should be noted that the record does not reflect that Diamond and Blalock withdrew from the case, nor does the record reflect that an order was signed terminating their representation of Holmes and Venson. After careful consideration of the facts and circumstances, and in the interests of justice, we find that Holmes’s and Venson’s actions were dilatory and contumacious.

¶ 15. Holmes and Venson did not take action in their matter until Grisby filed a motion to dismiss. Prior to that motion, Holmes and Venson’s matter lingered on the trial court’s docket for more than a year. Holmes and Venson contend that they were seeking new counsel while their matter lay dormant. However, that does not relinquish the duty to prosecute their case.

¶ 16. At the hearing on the motion to dismiss, Grisby’s counsel asserted that Holmes and Venson’^ actions hindered the prosecution of their claim. Holmps and Venson failed to reply to discovery in a timely fashion. One hundred-and thirty-nine days after responses to Grisby’s .discovery were due, Grisby’s trial counsel had to send Holmes and Venson another good-faith letter, because their responses to Grisby’s discovery were incomplete. Gris-by’s counsel highlighted the fact that Holmes and Venson failed to appear for their depositions in Greenville, resulting in the depositions being moved to Oxford. Holmes and Venson maintain that since they were sanctioned for failing to appear at the deposition, and the discovery matters were resolved prior to the hearing, their actions do not rise to the' level of dilatory and contumacious.

. ¶ 17. Grisby argues that the. failure to appear at .the scheduled deposition and the delay in responding to discovery requests do not necessarily equate to dilatory and contumacious conduct. Instead, Grisby asserts that they are aggravating factors that warrant dismissal of the claim when considered in conjunction with the unjustified delay in setting the matter for trial. We agree that the discovery violations alone would not rise to the level of dilatory and contumacious conduct; nevertheless, we also .find that .the violations coupled with the unjustifiable delay in setting, the matter for trial were dilatory and contumacious.

¶ 18. Holmes and Venson argue that there is no set time limit on the prosecution of their claims, and they assert that their conduct does not fall within the most-egregious-cases category that warrants dismissal pursuant to Rule 41(b), The Mississippi Supreme Court has articulated that “[tjhere is no set time limit'for the prosecution of an action[.j” Am. Tel. & Tel. Co., 720 So.2d at 180 (¶ 12). However, the Supreme Court has previously upheld a dismissal of a case for failure to prosecute under Rule 41(b) where the case had remained stale for more than a year. Manning v. King’s Daughters Med. Ctr., 138 So.3d 109, 117 (¶ 24) (Miss. 2014).

II. Whether the trial court abused its discretion in dismissing: the cause of action where there was no finding whether lesser sanctions may have better served the interests of justice.

¶ 19. Holmes and Venson assert that the trial court abused its discretion when it failed to make a finding on whether lesser sanctions may better serve the interests of justice. Holmes and Venson argue that the record contains absolutely no indication that lesser sanctions were considered by the trial judge before he dismissed their case with prejudice. After review of the record, we agree that the trial court did not make a finding regarding lesser sanctions. Nevertheless, we do not find this to be an abuse of discretion.

¶ 20. The Supreme Court has held that “in determining whether the trial court abused its discretion when dismissing a case pursuant to Rule 41(b), [the appellate court] must consider whether lesser sanctions would better serve the interests of justice.” Manning, 138 So.3d at 117-18 (¶ 27). “Lesser sanctions include ‘fines, costs, or damages against the plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.” Id. “[W]here there is no indication that the lower court considered any alternative sanctions to expedite the proceedings, appellate courts are less likely to uphold a Rule 41(b) dismissal.” Id. However, the court has also held that the fact that the record does not reflect an express finding on lesser sanctions does not alone require reversal. Collins v. Koppers Inc., 59 So.3d 582, 590 (¶ 22) (Miss. 2011).

CONCLUSION

¶ 21. We find that the trial did not abuse its discretion in dismissing Holmes and Venson’s claim for want of prosecution, as the year delay in the prosecution of their matter was not justifiable.

¶ 22. THE JUDGMENT OF THE TU-NICA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . .White was a third plaintiff to the original cause of action. She missed her discovery deadlines and failed to appear during her depositions, both in person and telephonically. White was eventually dismissed from the cause of action for failure to comply with discovery. She passed away shortly thereafter.


author: GRIFFIS, P.J.,

text:
    In the MATTER OF the ESTATE OF Houston T. JARVIS, Sr.: Shelby J. Kilpatrick, Individually and as Executrix of the Estate of Houston T. Jarvis, Sr. Appellant/Cross-Appellee v. Houston T. Jarvis, Jr. and William C. Jarvis Appellees/Cross-Appellants
    NO. 2015-CA-00739-COA
    Court of Appeals of Mississippi.
    06/27/2017
    Rehearing Denied October 10, 2017
    Certiorari Denied December 14, 2017

      GEORGE H. SPINKS, ATTORNEY FOR APPELLANT
    MARK A. SCARBOROUGH, ATTORNEY FOR APPELLEES
    BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. In this case, we consider the appeal and cross-appeal of the chancellor’s decision to impose a constructive trust. Because we find that the constructive trust was properly imposed but should have.-included additional proceeds, we affirm the chancellor’s judgment in part and reverse and render in part.

FACTS AND PROCEDURAL HISTORY

¶ 2. Houston T, Jarvis Sr, (“Jarvis”) died on October 16, 2011. His wife predeceased him. Jarvis was survived by his three children,. Shelby J. Kilpatrick, Houston T. Jarvis Jr. (“Houston”), and William C. Jarvis (“William”).

¶ 3. On February 28, 1989, Jarvis executed a general power of attorney and named Kilpatrick as his attorney-in-fact. Then; on February 2, 2001, Jarvis executed a Last Will and Testament. In this will, Jarvis left his estate to his three children in equal; shares. Jarvis never revoked or amended his will.

¶ 4, Jarvis had a checking account at The Commercial Bank (“Commercial Bank”). He originally opéned this account with his late wife in January 1989. The checking account was 'designated a joint account with rights of survivorship. On December 2, 2004, Kilpatrick’s name was added to the checking account. Jarvis, however, did not execute a new signature card. Instead, the original signature card was amended. The name of Jarvis’s late wife was stamped with the word “DELETE,” and Kilpatrick signed the original signature card under the stamped notation. The survivorship provision on the signature card remained.

¶ 6. Vicky Sanderson, an employee of Commercial Bank, testified that, at the time of the transaction, a new signature card was not required. Instead, it was Commercial Bank’s custom and procedure to delete and add a name without the creation of a new card. When asked whether Jarvis’s presence was required for the transaction, Sanderson testified as follows:

[Jarvis] would have — he would have had to have come in and brought [Kilpatrick] in, I would have — I would think. Now, I don’t know — I mean, normally, that’s what we did. I mean, we don’t put someone on unless the owner of the account does come in to actually do that.

However, Sanderson did not recall the specific transaction. She was not able to testify that she personally witnessed or could confirm Jarvis’s presence on the day the signature card was changed.

¶ 6. Following the change of signature card, the monthly bank statements continued to be sent to Jarvis. However, the statements were issued in Jarvis’s name only. The statements never reflected any evidence of the change in title of the ownership of the bank account and never indicated a joint tenancy with Kilpatrick.

¶ 7. In June 2005, Jarvis moved in Kilpa-trick’s residence. Jarvis remained at Kilpa-trick’s home until his death.

¶ 8. On April 21, 2008, Kilpatrick opened a liquid certificate-of-deposit. account at Commercial Bank, with Jarvis as “Signer # 1” and Kilpatrick as “Signer # 2.” I,t is undisputed that Jarvis did not sign the signature card creating the account and was not present when the account was created. Instead, Kilpatrick created the account and signed on behalf of Jarvis as his attorney-in-fact.

¶ 9. Beginning in 2008, Kilpatrick, acting as Jarvis’s attorney-in-fact, closed and endorsed various certificates of- deposit owned by Jarvis at The Citizens Bank (“Citizens Bank”). Some of the certificates of deposit were designated for Houston and William. Kilpatrick transferred the funds to Jarvis’s checking account and the liquid certificate-of-deposit. account at Commercial Bank,

¶ 10. On September 27, 2011, less than one month before Jarvis’s death, Kilpa-trick withdrew $5,000 from Jarvis’s checking account and the liquid certificate-of-deposit account. As of the date of Jarvis’s death, the balance of the checking account was $33,981.10. And as of December 31, 2011, the balance of the liquid certificate-of-deposit account was $122,405.46.

¶ 11. After Jarvis’s death,' Kilpatrick, Houston, and William met at Kilpatrick’s residence. Kilpatrick advised Houston and William that there was no money to Jarvis’s estate. Kilpatrick told them that Jarvis had left her a certificate of deposit worth approximately $100,000.

¶ 12. On December 7, 2011, Kilpatrick filed a “complaint for probate of will[,3 appointment of executor” to the Chancery Court of Kemper County, Cause No. 2011-0184. The chancery court entered an order to probate the will and appointed Kilpa-trick'as executor.

¶ 13. On April 9, 2013, Houston and William filed a “complaint for accounting and other equitable relief’ in the Chancery Court of Kemper County, Cause No. 2013-0020. In this complaint, Houston and William claimed Kilpatrick had abused the confidence that was placed to her by Jarvis, and, as a result, sought the imposition of a constructive trust. These cases were subsequently consolidated.

¶ 14. After a trial, the chancellor found that although, a confidential relationship existed between Kilpatrick and Jarvis, there was no undue .influence by Kilpa-trick. The chancellor, however, found Kil-patrick’s “attempt to convince her brothers that there was nothing in her father’s estate was substantial overreaching.” As a result, the chancellor imposed a constructive trust for the use and benefit of all three children. The constructive trust included the funds in Jarvis’s checking account at the time of his death as well as the balance of the liquid certificate-of-deposit account, as of December 31, 2011. The constructive trust also included the $5,000 that was. withdrawn from both ac-. counts shortly before Jarvis’s death.

¶ 15'.’ Houston and William filed an amended motion for a new trial or amendment of judgment, which was granted to part and denied in part. From this judgment, Kilpatrick now appeals. She argues that the funds in Jarvis’s checking account and liquid certificate-of-deposit account at the time of his death belong to her and are not subject to a constructive trust as part of the estate. Houston and William cross-appeal and agree with the chancellor’s imposition of a constructive trust, but argue the constructive trust should have included additional sums of money.

ANALYSIS

I. Kilpatrick’s Appeal

¶ 16. Kilpatrick argües the chancellor' erred to imposing a constructive trust on Jarvis’s checking account and liquid certificate-of-deposit account. “A constructive trust is a fiction of equity.” Griffin v. Armana, 687 So.2d 1188, 1195 (Miss. 1996) (quoting Russell v. Douglas, 243 Miss. 497; 138 So.2d 730, 734 (1962)). The Court has defined a constructive trust as follows:

A constructive trust is one that arises by operation of law against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, . or who to any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy.

Id. at 1194-95 (quoting Planters Bank & Tr. Co. v. Sklar, 555 So.2d 1024, 1034 (Miss. 1990)).

¶ 17. “Constructive trusts are created for the purpose of preventing unjust enrichment, whereby one unfairly holding a property interest may be compelled to convey that interest to whom it justly belongs.” Id. at 1195. “It is the [confidential] relationship plus the abuse of the confidence imposed that authorizes a court of equity to construct a trust for the benefit of the party whose confidence has been abused.” Summer v. Summer, 224 Miss. 273, 80 So.2d 35, 37 (1955). Clear and convincing proof is necessary to establish a constructive trust Allgood v. Allgood, 473 So.2d 416, 421 (Miss. 1985).

¶ 18. The chancellor found, and the parties do not dispute, that a confidential relationship existed between Kilpatrick and Jarvis. Thus, the issue for this Court to decide is whether there was an abuse of that confidence, which authorized the chancellor to impose a constructive trust.

¶ 19. “[T]his Court’s review of a chancellor’s findings of fact, including those regarding a constructive trust, is limited in that this Court cannot set aside a chancellor’s findings of fact so long as they are supported. by substantial credible evidence.” McNeil v. Hester, 753 So.2d 1057, 1064 (¶ 26) (Miss. 2000). “However, this Court conducts a de novo review of questions of law, including those regarding the applicability of a constructive trust.” Id.

¶ 20. The record shows Kilpatrick, as attorney-in-fact, liquidated the certificates of deposit owned by Jarvis at Citizens Bank. Jan White, an officer with Citizens Bank, testified that Kilpatrick closed and endorsed certificates of deposit in the amount of $105,818.19 on which Houston’s name appeared as either a joint owner or as a payable-on-death beneficiary. Additionally, Kilpatrick closed and endorsed certificates of deposit in the amount of $127,304.72, on which William’s name appeared as either a joint owner or a payable-on-death beneficiary. Kilpatrick also closed and endorsed certificates of deposit in the amount of $31,841.70 on which Jarvis’s name appeared. All of the checks issued by Citizens Bank as payment of those certificates of deposit were endorsed by Kilpatrick. The funds were transferred by Kilpatrick to Jarvis’s checking account at Commercial Bank and/or to the liquid certificate-of-deposit account at Commercial Bank, both of which were allegedly jointly owned by Kilpatrick!

¶21. The certificate of deposit at Citizens Bank on which Kilpatrick’s name appeared as the payable-on-death beneficiary was also endorsed by Kilpatrick. However, Kilpatrick created a new certificate of deposit in her name only. In May 2012, after Jarvis’s death, Citizens Bank issued a check to Kilpatrick in the amount of $83,452.19.

¶22. The record further shows that $277,428.56 was deposited into Jarvis’s checking account between December 2, 2004, when Kilpatrick was added to the account, and October 16, 2011, when Jarvis died. Yet the balance of Jarvis’s checking account at the time of his death was only $33,981.10. Kilpatrick issued numerous checks from Jarvis’s checking account that were payable to herself or to cash.

¶ 23. As the chancellor noted, Kilpatrick voluntarily chose to provide care for Jarvis and “benefitted greatly in a financial sense from [Jarvis’s] assets.” Following Jarvis’s death, the remaining account balances were no longer needed for his living expenses. The chancellor properly concluded that Kilpatrick would be unjustly enriched if the remaining account balances became hers since, “[ajlthough the evidence is clear and convincing that [Jarvis] intended for [Kilpatrick] to make expenditures during his lifetime, it is equally clear that he intended- for his remaining assets to be divided equally among his three children after his death.” We agree, and find the imposition of a constructive trust was proper.

¶ 24. Kilpatrick claims the funds in Jarvis’s checking account and the liquid certificate-of-deposit account belong to her as joint owner with rights of survivorship and are not subject to a constructive trust. Joint ownership of a deposit account is created when it appears that the clear intention of the original owner is to divest himself of exclusive ownership of the funds at issue and vests ownership jointly in himself and another with rights of surviv-orship. Strange v. Strange, 548 So.2d 1323, 1327 (Miss. 1989). Kilpatrick argues “the intent of [Jarvis] to construct such an account is clearly evident in the title of the bank account and his execution and change of the signature card on the account.”

¶ 25. However, the bank statements from Jarvis’s checking account did not reflect a change in the title of the account. Instead, the statements were issued to Jarvis in his name only. Additionally, it was undisputed that Jarvis never executed a new signature card when Kilpatrick’s name was added to his checking account and did not execute a signature card when the liquid certificate-of-deposit account was created. Thus, there was an unresolved question of whether Jarvis intended to divest himself of exclusive ownership of the funds at issue.

¶ 26. Régardless, we find Kilpatrick’s claim of joint ownership is misplaced. It is Kilpatrick’s abuse of the confidential relationship with Jarvis that allowed her to make certain transactions to her benefit. Kilpatrick, acting as Jarvis’s attorney-in-fact, transferred funds which Jarvis had designated for Houston and William, but preserved certain funds designated for her. Moreover, Kilpatrick transferred the funds designated for Houston and William to' accounts she now owns by right of survivorship. While those funds were used to support Jarvis during his lifetime, we find Kilpatrick’s attempt to exclude Houston and William as beneficiaries amounts to an abuse of the confidential relationship she had with Jarvis, and was contrary to Jarvis’s testamentary intent.

¶ 27. Kilpatrick further claims the power of attorney executed by Jarvis authorized her to create the joint account and to make the various transactions. In support, Kilpa-trick relies on In re Estate of Hemphill, 186 So.3d 920 (Miss. Ct. App. 2016). In Hemphill, the Court acknowledged that “under Mississippi law a [power of attorney] that grants the attorney-in-fact ‘full power to handle the principal’s affairs or deal with the principal’s property’ is sufficient to give the attorney-in-fact ‘the power and authority to make gifts in any amount ... to any individuals.’ ” Id. at 935 (¶ 57) (quoting Miss. Code Ann. § 87-3-7(2) (Rev. 2011)). However, in Hemphill, the express terms of the power of attorney prohibited the attorney-in-fact “from recognizing any personal gain on any transaction executed under authority of the [power of attorney].” Id. at 936 (¶ 60). As a result of the restrictive language, we found the attorney-in-fact’s powers were limited. Id. at 936-37 (¶ 60).

¶28. Kilpatrick asserts there are no such restrictions on her powers within the power of attorney. As a result, Kilpatrick claims she was allowed to' place the funds in the liquid certificate of deposit in her name and Jarvis’s name as joint tenants with rights of survivorship.' However,- pursuant to section 87-3-7(2), such gifts must be made' “in accordance with the principal’s history of making or joining in the making of lifetime gifts.” Here, there is no evidence Jarvis had a history of gift giving other than to his church on Sundays and to his family at Christmas. Thus, Kilpatrick’s reliance on Hemphill fails.

¶ 29. Kilpatrick last claims Jarvis intended for her to receive all of his assets since she took care .of him. However, the-witness testimony Kilpatrick offered- in support, of this claim consisted of her sons, stepson, and daughter-in-law, all of whom henefit-ted from Jarvis at some point.

¶ 30. Moreover, Jarvis never amended or revoked-his will, even after Kilpatrick’s name was added to his checking account and the liquid certificate-of-deposit account was created. Jarvis executed his will after he had executed the general power of attorney. Thus, despite the authority granted to Kilpatrick as attorney-in-fact, Jarvis intended his remaining assets to be shared by his children.

¶ 31. The record shows an abuse of the confidential relationship between Kilpa-trick and Jarvis. Accordingly, we find the chancellor was authorized to impose a constructive trust. We find no merit to the issues raised by Kilpatrick and affirm the chancellor’s judgment.

II. Houston and William’s Cross-appeal

¶ 32. In their cross-appeal, Houston and. William assert the chancellor erred in denying the part of .their amended motion for a new trial or amendment of judgment that sought the imposition of a constructive trust on additional sums of money. "Houston and William filed their amended motion under Mississippi Rule of Civil Procedure 59. “This Court reviews a trial court’s denial of a Rule 59 motion under an abuse of discretion standard.” Brooks v. Roberts, 882 So.2d 229, 233 (¶ 15) (Miss. 2004). “[I]n order to succeed on a Rule 59(e) motion, the movant must show: (i) an intervening change in controlling law, (ii) availability of new evidence.not previously available, or (in) need to correct a clear error of. law or prevent manifest injustice.” Id.

¶ 33. Houston and William argue that, at the very least, the constructive trust should include Kilpatrick’s certificate-of-deposit proceeds of $83,452.19. We agree.

¶ 34. As previously discussed, Kilpatrick, acting as Jarvis’s attorney-in-fact, closed and endorsed various certificates of deposit designated for Houston, and William. Kilpatrick transferred the funds to Jarvis’s checking account and/or liquid certificate-of-deposit account at Commercial. Bank. Kilpatrick also closed and endorsed a certificate of deposit designated for her. However, Kilpatrick deposited these funds in a separate certificate-of-deposit account. After Jarvis’s death, Kilpatrick redeemed the certificate of deposit in the amount of $83,452.19. Thus, the record shows Kilpa-trick paid expenses with funds intended for Houston , and William, but preserved certain funds intended for her.

¶35. We find that in order to prevent manifest injustice, Kilpatrick’s certificate of deposit in the amount of $83,452.19 should be included in the constructive trust. We find the chancellor erred in failing to include such funds in the constructive trust, and therefore reverse and render.

¶ 36, THE JUDGMENT OF THE KEMPER COUNTY CHANCERY COURT IS AFFIRMED IN PART, AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT/CROSS-APPELLEE AND ONE-HALF TO THE APPEL-LEES/CROSS-APPELLANTS.

' LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, FAIR, "WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. ‘ .


author: IRVING, P.J.,

text:
    Curtis NORRIS and Jo Hannah Hall, Appellants v. J.B. HUNT TRANSPORT, INC., Appellee
    NO. 2015-CA-01438-COA
    Court of Appeals of Mississippi.
    06/27/2017
    Rehearing Denied October 10, 2017
    Certiorari Denied January 18, 2018
    ATTORNEYS FOR APPELLANTS: JEFFREY A. VARAS, KATHRYN LINDSEY WHITE, JAMES D. SHANNON, BENNETT LANDOÑ WILSON
    ATTORNEYS, FOR APPELLEE: DAVID' C. DUNBAR, MORTON WARD SMITH
   IRVING, P.J.,

FOR THE COURT:

¶ 1. Curtis Norris and Jo Hannah Hall appeal the judgment of the Copiah County Circuit Court in favor of J.B. Hunt Transport Inc. (J.B. Hunt). Both Hall and Norris argue that they were prejudiced by a juror’s failure to respond to questions in voir dire and that the circuit court erred by granting a certain jury instruction. In addition to the shared issues, Hall also argues that the evidence is insufficient to support the jury’s verdict and, alternatively, that the verdict is against the weight of the evidence.'

¶ 2. Since we find that the appeal was not timely filed, we dismiss for lack of jurisdiction.

FACTS

¶ 3. This case involves a, controversy over the personal injuries suffered by Hall and Norris after a motorcycle accident. Hall was a passenger riding with Norris at the time of the accident. Hall and Norris alleged that an eighteen-wheéler, owned by J.B Hunt and operated by one of its employees, merged into their lane and forced them off of the road, resulting in their being thrown from the motorcycle and suffering serious injuries.

¶ 4. Hall sued Norris and J.B. Hunt for damages related to her injuries. Norris filed a cross-claim for damages against J.B. Hunt. Norris and Hall settled their dispute before trial and continued in a joint action against J.B. Hunt. The matter was tried to a jury, and it returned a verdict in favor of J.B. Hunt on March 28, 2014. On April 10, 2014, pursuant to the jury’s verdict, the circuit court entered a final judgment in the matter. Hall and Norris timely filed separate post-trial motions seeking a judgment notwithstanding the verdict or, alternatively, a new trial. A little over a year later, on April 17, 2015, the circuit court denied Hall’s post-trial motion, and on April 30, 2015, the court denied Norris’s post-trial motion. Rather than appealing the circuit court’s April 10, 2014 final judgment and the April 17, 2015 denial of her post-trial motion, Hall, on April 28, 2015, filed a motion for reconsideration of the denial of her post-trial motion. Like Hall, Norris did not appeal the April 10, 2014 final judgment after the court denied his post-trial motion on April 30, 2015; rather, on May 1, 2015, Norris joined in Hall’s April 28, 2015 motion for reconsideration and on May 11, 2015, filed his own motion for reconsideration of the court’s April 30, 2015 denial of his post-trial motion. On September 15, 2015, the court denied the motions for reconsideration. Norris filed his appeal on September 23, 2015, and Hall filed hers on October 6, 2015.

DISCUSSION

¶ 5. Since these appeals were untimely, we are unable to address the substantive issues raised by the parties because we lack jurisdiction. We explain.

¶ 6. Rule 4(a) of the Mississippi Rules of Appellate Procedure provides in pertinent part:

Appeal and Cross-Appeals in Civil and Criminal Cases. Except as provided in Rules 4(d) and 4(e)[], in a civil or criminal case in which an appeal or cross-appeal is permitted by law as of right from a trial court to the [Mississippi] Supreme Court, the notice of appeal required by Rule 3[] shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.

Rule 4(d) of the Mississippi Rules of Appellate Procedure provides that, in civil cases, if a party timely files one of these motions — (1) a motion for a judgment under Rule 50(b) of the Mississippi Rules of Civil Procedure; (2) a motion to amend or make additional findings of facts under Rule 52(b) of the Mississippi Rules of Civil Procedure, whether or not granting the motion would alter the judgment; (3) a motion to alter or amend the judgment or for a new trial under Rule 59 of the Mississippi Rules of Civil Procedure; or (4) a motion for relief from a judgment under Rule 60 of the Mississippi Rules of Civil Procedure if the motion is filed no later than ten days after entry of the judgment — “the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding.” M.R.A.P. 4(d).

¶ 7. The post-trial motions that Hall and Norris filed in April 2014 were motions under Rule 59, seeking a judgment notwithstanding the verdict, or, alternatively, a new trial. When the circuit court denied Hall’s motion on April 17, 2015, and Norris’s on April 30, 2015, their thirty-day appeal time began to run. Bresler v. Bresler, 824 So.2d 641, 642-43 (¶ 5) (Miss. Ct. App. 2002); Pruett v. Malone, 767 So.2d 983, 985 (¶ 10) (Miss. 2000). Therefore, Hall had until May 17, 2015, to file her notice of appeal, and Norris had until May 30, 2015, to file his notice of appeal. Neither of them did.

¶ 8. In Loftin v. Jefferson Davis County School District, 142 So.3d 1098, 1100 (¶ 5) (Miss. Ct. App. 2014), this Court stated:

Motions for reconsideration are filed every day in Mississippi, but the Mississippi Rules of Civil Procedure do not specifically provide for them. This Court recently summarized how they should be treated:
The Mississippi Rules of Civil Procedure provide two avenues to move the trial court to reconsider its judgment. The aggrieved party may (1) file a motion for a new trial or to alter or amend under Rule 59 or (2) file for a relief from a final judgment under Rule 60(b). The timing of the motion to reconsider determines whether it is a Rule 59 or Rule 60(b) motion.
A motion to reconsider filed within ten days of the entry of the judgment falls under Rule 59 and tolls the thirty-day time period to file a notice of appeal until the disposition of the motion. Consequently, a notice of appeal following the denial of a Rule 59 motion to reconsider encompasses both the denial of reconsideration and the underlying judgment.
But a motion to reconsider filed more than ten days after the entry of the judgment falls under Rule 60(b). And a Rule 60(b) motion does not toll the thirty-day time period to file a notice of appeal. So a notice of appeal following the denial of a Rule 60(b) motion to reconsider limits this [Cjourt’s review to whether reconsideration was properly denied under Rule 60(b). This [Cjourt has no jurisdiction to consider the merits of the underlying judgment.

(quoting Woods v. Victory Mktg. LLC, 111 So.3d 1234, 1236-37 (¶¶ 6-8) (Miss. Ct. App. 2013)).

¶ 9. The motions to reconsider that Hall and Norris filed on April 28, 2015, and May 11, 2015, respectively, could be considered only as Rule 60(b) motions because they were filed more than ten days following the final judgment entered by the circuit court on April 10, 2014. With respect to civil cases, our rules provide that an appeal must be filed within thirty days of the entry of a final judgment unless a motion — seeking to alter or amend the final judgment, or to obtain a new trial — is filed within ten days of the final judgment. If a motion is filed within ten days, the thirty-day appeal time is tolled until the trial judge rules on the motion. Any other motion, if filed beyond ten days of the entry of the final judgment, including any motion filed within ten days after the trial court rules on the initial timely filed post-trial motion, can be treated as a Rule 60(b) motion if it alleges facts which would bring it within the grasp of Rule 60(b). But our rules do not allow for a second tolling of the thirty-day appeal time under any circumstance, nor do they permit a second attack upon the substantive provisions of a final judgment, except by a motion alleging facts lying within the parameters of Rule 60(b).

¶ 10. Here it is clear that Hall’s and Norris’s motions to reconsider — which were filed after the trial judge denied their initial' motions for a judgment notwithstanding the verdict or, alternatively, for a new trial — were nothing- more than attempts to get the trial judge to reconsider, for a second time, the final judgment that he had entered back in April-2014. The motions did" not allege anything that would remotely qualify them for treatment as Rule 60 motions. Therefore, finding that Hall and Norris failed to timely file their appeals in accordance with the rules, we dismiss this appeal for lack of jurisdiction.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . Rule 4(e) of the Mississippi Rules of Appellate Procedure relates to post-trial motions in criminal cases.

      . Rule 3 of the Mississippi Rules of Appellate Procedure provides in pertinent part that “[a]n appeal permitted by law as of right from a trial court to the [Mississippi] Supreme Court shall be taken by filing a notice of • appeal with the clerk of the trial court within the time allowed by Rule 4.”


author: GREENLEE, J.,

text:
    Shawn Labarron DAVIS a/k/a Shawn Davis a/k/a Shawn L. Davis a/k/a Shawn Labarren Davis a/k/a Shawn Labarum Davis, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CA-00638-COA
    Court of Appeals of Mississippi.
    06/27/2017
    Rehearing Denied October 10, 2017
    Certiorari Denied January 11, 2018.

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS
    ATTORNEY FOR APPELLEE: OFFICE OF ATTORNEY GENERAL: BY: KATY TAYLOR GERBER
    BEFORE LEE, O.J., ISHEE AND •. GREENLEE, JJ.
   GREENLEE, J.,

FOR THE COURT:

.¶ 1. In 2004, Shawn Davis was sentenced to life in prison without eligibility for parole after entering a guilty plea for a murder he .participated in committing when he was sixteen years old. Mississippi law does not provide the possibility of parole for those convicted of murder under Mississippi Code Annotated section 97—3—19(1)(a) (Rev. 2014). In 2012, the United States Supreme Court held that juveniles could not be mandatorily denied the possibility of parole when sentenced to life. Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Accordingly, post-Miller, Davis was granted a new sentencing hearing. After a consideration of the non-exhaustive Miller factors, the court again sentenced Davis to life without excepting him from the parole prohibition. Davis appeals. Finding no abuse of discretion, we affirm.

FACTS AND PROCEEDINGS BELOW

¶2. In 2002, sixteen-year-old Shawn Davis, Anthony Booker, and seventeen-year-old Mary Scarborough plotted to rob Dorian Johnson, Scarborough’s flfty-some-thing-year-old former boyfriend. Johnson had allegedly been stalking Scarborough. While planning the robbery, Davis suggested that they should kill Johnson as well. Davis called Johnson and arranged for Johnson to pick Davis up and take them to a park to smoke marijuana. Scarborough and Booker also drove to the park, Booker and Davis dragged Johnson out of his car at knifepoint, and; beat and kicked Johnson.

¶ 3. When Johnson fell unconscious, they put him in the back of Johnson’s jeep and drove him to an alligator pit. On the way, Johnson révived and Davis began beating him again. The pit was closed, so they drove to another location and pulled Johnson out of thé vehicle and under a fence before resuming kicking and beating him. Davis then took the knife and repeatedly slashed Johnson’s face, neck, and head. After Johnson stopped moving, they searched and robbed Johnson’s body before leaving the scene. According to the autopsy testimony, Johnson likely died several hours later due to a combination of blood loss, brain swelling, and internal damage to vital organs. He had over thirty stab wounds.

¶ 4. Davis pleaded guilty to simple murder under Mississippi Code Annotated section 97-3-19(l)(a) and was sentenced , to life in prison. Mississippi’s statutory parole scheme prohibits parole eligibility for those convicted of murder, effectively making Davis’s sentence life without the possibility of parole. Miss. Code Ann. § 47-7-3 (Rev. 2012).

¶ 5. In 2012, the United States Supreme Court held that mandatory life sentences for juveniles violates the Eighth Amendment of the United States Constitution. Miller, 567 U.S. at 465, 132 S.Ct. 2455. The court did not categorically ban the imposition of life without the possibility of parole, but instead held that, prior to sentencing a juvenile to life without parole, the sentencing authority must consider “the characteristics of youth,” including nonexhaustive factors such as the defendant’s chronological age, his family and home environment, the circumstances of the homicide offense (including the extent of the defendant’s participation), and the possibility of rehabilitation. Id.

¶ 6. The Mississippi Supreme Court acknowledged Miller in Parker v. State, 119 So.3d 987 (Miss. 2013), noting that, prior to sentencing a juvenile to life without the possibility of parole, Miller requires “the sentencing authority to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. at 995 (¶ 19) (quoting Miller, 567 U.S. at 480, 132 S.Ct. 2455). If, after considering the Miller factors, the trial court concludes that a defendant should receive life with the possibility of parole, then “the court shall enter a sentence of ‘life imprisonment with eligibility for parole notwithstanding the present provisions of Mississippi Code Section 47—7—3(1)(h).’ ” Parker, 119 So.3d at 999 (¶ 28).

1Í7. At the resentencing hearing, the court heard testimony from several of Davis’s family members, who testified that he was raised in a dysfunctional household with a mother who abused drugs and alcohol.

DISCUSSION

¶ 8. Miller applies retroactively to cases on collateral review. Jones v. State, 122 So.3d 698, 703 (¶ 18) (Miss. 2013). Our standard of review for a trial court’s imposition of a sentence is abuse of discretion. Hudspeth v. State, 179 So.3d 1226, 1228 (¶ 12) (Miss. Ct. App. 2015).

¶ 9. We do not find the trial court abused its discretion in applying the Miller sentencing factors to conclude that Davis should be sentenced to life without the possibility of parole. The circumstances of this case are not meaningfully distinguishable from those of Hudspeth, in which this Court affirmed the trial court’s imposition of a life sentence without parole after consideration of the Miller factors. Id. In particular, the circumstances of the crime and Davis’s level of participation are not in his favor. It was Davis’s premeditated idea to kill the victim in addition to robbing him, and it was Davis who slashed the victim more than thirty times with a knife. No evidence was presented that Davis “succumbed to any peer pressure in committing the crime.” Id. at (¶ 9).

¶ 10. Davis also argues that Mississippi should treat life sentences without parole for juveniles as unconstitutional, and that a jury, rather than a judge, should determine a Miller sentence. Our state Supreme Court post-Miller has treated life without parole as a sentencing option and the trial judge as an appropriate sentencing authority. Parker, 119 So.3d at 998 (¶ 26) (“We ... remand for hearing where the trial court, as the sentencing authority, is required to consider the Miller factors before determining sentence.”). These issues are therefore without merit.

CONCLUSION

¶ 11. Davis was appropriately granted a resentencing hearing for the sentencing authority to consider the characteristics of youth in compliance with Miller. The trial court considered the Miller factors, and we do not find that it abused its discretion in sentencing Davis to life without an exception from the parole prohibition.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON AND FAIR, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . These facts are taken from the transcript of Davis’s plea hearing, the transcript of Scarborough’s trial and subsequent appeal in Scarborough v. State, 956 So.2d 382 (Miss. Ct. App. 2007), and the transcript of Davis's post-conviction Miller hearing. At Scarborough’s trial, Davis testified that it was his idea to kill (in addition to rob) Johnson, and that he did most of fhe kicking and beating, and all of the slashing.

      . The plea reduced Davis’s charge from capital murder, which would have included the death penalty as a sentencing option. Several months after the entry of Davis's plea, - the United States Supreme Court held that juveniles could not be sentenced to death. Roper v. Simmons, 543 U.S. 551, 578, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).


author: GRIFFIS, P.J., IRVING, P.J.,

text:
    John Ed OLIVER, II a/k/a John Ed Oliver a/k/a John Oliver a/k/a John Oliver, II a/k/a John Edward Oliver, II, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00262-COA
    Court of Appeals of Mississippi.
    07/25/2017
    Rehearing Denied November 28, 2017
    Certiorari Denied January 18, 2018

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY T. GERBER
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. John Ed Oliver II was convicted of the armed robbery of Christian Rone. On appeal, Oliver argues an insufficiency of the evidence since the State of Mississippi failed to prove that the taking was effectuated through fear of immediate injury to Rone. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Oliver and Danny Kaye Hubbard Jr. were indicted on the charges of Count I, conspiracy to commit armed robbery, and Count II, armed robbery. The State proceeded to trial against Oliver on Count II only.

¶ 3. At trial, Rone testified that, on November 16, 20Í3, he was riding his skateboard on the sidewalk when Oliver pulled up beside him in a vehicle. Rone and Oliver were acquaintances from high school. There was a passenger in the vehicle with Oliver whom Rone recognized, but did not know his name,

¶4. Oliver asked Rone to use his cellphone. Rone agreed to let Oliver borrow his phone. Rone stated that Oliver pushed a few buttons and then indicated that he was going to keep the phone. When Rone asked that Oliver return the phone, Oliver said he was going to keep it. Rone demanded that Oliver return the phone, to which Oliver replied, “Who do you think you’re talking to?” According to Rone, Oliver then reached under the seat and pulled out a gun. Rone asked Oliver to return the phone, and Oliver replied, “No, I don’t think you know who you’re talking to.” According to Rone, Oliver then cocked the gun and pointed it at him.

¶ 5. Rone continued to ask for his phone. However, Oliver started to drive off in the vehicle. At that point, Rone grabbed on to the side of the car window. Oliver continued to drive, throwing Rone off the vehicle. Rone subsequently told his parents about the incident and galled the police.

¶ 6. When asked how he felt when the gun was exhibited, Rone testified:

I felt pretty scared. At the split second it happened, I felt shock, a lot of shock. I mean, at first when he just gestured at me, I was like I know he’s just kidding, but then as soon as he cocked the gun, everything kind of dropped, and it got really serious at that moment. I was really scared, but I still tried to.make one desperate move about it, and then when he drove off, I knew it was over with. I knew he was still pointing the gun at me while he was still driving though.

Rone explained that he did not have “a whole lot of time” to think since the entire incident lasted approximately three minutes.

¶ 7. Detective Todd Samples testified that Rone’s phone was recovered at Oliver’s residence. Following Oliver’s arrest, Detective Samples conducted two interviews with Oliver. During his initial interview, Oliver indicated that he was the only person in the vehicle and denied the presence of a gun. “A couple of days” after the first interview, Oliver requested a second interview. During the second interview, Oliver stated that Hubbard was in the vehicle with him at the time of the incident and that Hubbard had a gun. Samples stated he was unable to recover the gun since, according to Oliver, the gun had been returned to a friend.

¶ 8. Oliver testified in his own defense. Oliver explained that Hubbard had a gun “sitting right on the seat right below the arm rest.” Oliver stated that during the conversation with Rone, Hubbard showed Rone the gun, but did not cock the gun or point it at Rone. Oliver was certain that Rone saw the gun, as .the gun was “visible,” but stated he never picked up the.gun or pointed it at Rone. Oliver admitted to taking Rone’s phone. Oliver further admitted that at the time of the incident, he was under the influence of Xanax and marijuana.

¶ 9. Oliver was convicted of Count II, armed robbery, and was sentenced to serve seven years in the custody of the Mississippi Department of Corrections, followed by eight years of post-release supervision. Oliver filed a motion for a judgment notwithstanding the verdict or, in' the alternative, a new trial, which the circuit court denied.

ANALYSIS

I. Sufficiency of the Evidence

¶ 10. In considering whether the evidence is sufficient to sustain a conviction, “the relevant question is whether, after viewing the eyidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005). Where the facts and inferences “point in favor of the defendant on any element of the offense with sufficient force that reasonable, [jurors] could not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy is to reverse and render. Id. However, if “reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient. Id.

¶ 11. The essential elements, of armed robbery are: “(1) a felonious taking or attempt to take, (2) from the person or from the presence, (3) the personal property of another, (4) against his will, (5) by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon.” Wales v. State, 73 So.3d 1113, 1122 (¶ 27) (Miss. 2011) (quoting Bush, 895 So.2d at 843). Proof of either violence or fear of immediate injury is sufficient unless the indictment is specific as to one. Davis v. State, 75 So.3d 569, 572 (¶ 9) (Miss. Ct. App. 2011). Here, Oliver’s indictment alleged that the taking of Rone’s phone occurred by placing Rone in fear of immediate injury to his person by the exhibition of a deadly weapon.

¶ 12. Oliver argues the evidence was insufficient to support his conviction since there was no proof that the taking was accomplished by placing Rone in fear of immediate harm. In support of his argument, Oliver relies on Clayton v. State, 759 So.2d 1169 (Miss. 1999).

¶ 13. In Clayton, the defendant was convicted of robbery for stealing a woman’s purse as she was walking into a grocery store. Clayton, 759 So.2d at 1170 (¶¶ 2, 4). The victim testified that she was “scared to death.” Id. at 1171 (¶ 5). However, when asked why she was scared, the victim stated,

Well, [the defendant] had got my bag and was leaving, and I was afraid I was going to fall, and my doctor has told me that I have osteoporosis and for me not to fall. I will be sure and break a bone, so that is the reason I was fighting so much to stand up.

Id. Importantly, the victim stated she did not experience fear until after her purse was taken. Id. at (¶ 6).

¶14. On appeal, the conviction was reversed since there was no evidence that the robbery was effectuated through fear of immediate injury to the victim. Id. at 1170 (¶ 5). Instead, the testimony showed that the victim was not afraid or fearful until after the taking had occurred. Id. at 1172 (¶ 9). The Court explained that “[t]he taking ... must be the result of the force or fear; and force or fear which is a consequence, and not the means, of the taking, will not suffice.” Id. at (¶ 8) (quoting Register v. State, 232 Miss. 128, 97 So.2d 919, 921-22 (1957)). “The fear of physical ill must come before the relinquishment of the property to the thief, and not after ....” Id.

¶ 15. Oliver asserts Rone was not placed in fear by the exhibition of the gun úntil after Rone had “voluntarily relinquished possession of the phone.” Thus, Oliver argues that, like the victim in Clayton, Rone did not experience fear until after the taking had occurred. We disagree.

1116. Although Rone initially allowed Oliver to borrow his phone, the taking occurred when Oliver refused to return the phone, and exhibited a deadly weapon to intimidate or cause fear in Rone in order to keep it. The taking was not complete until Oliver drove out of Rone’s presence with the phone.

¶ 17. Here, unlike in Clayton, the testimony shows fear was the means of the taking. In other words, the taking was effectuated through fear of immediate injury to Rone.

¶ 18. Overall, considering the evidence in the light most favorable to the State, we find sufficient evidence exists to support Oliver’s conviction of armed robbery. Thus, the circuit court did not erroneously deny Oliver’s motion for a judgment notwithstanding the verdict.

II. Weight of the Evidence

¶ 19. “When reviewing a denial of a motion for new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). The evidence is weighed in the light most favorable to the verdict. Id.

¶20. Oliver argues the verdict is contrary to the overwhelming weight of the evidence since “[t]he weight of the evidence proves that the taking of [the] phone from Rone resulted from a voluntary relinquishment!,] not the result of Rone being placed in fear of harm by the display of a deadly weapon.” However, there is no evidence Rone voluntarily relinquished his phone to Oliver. Instead, the testimony clearly shows that Rone, on multiple occasions, asked for Oliver to return his phone. However, Oliver refused to return the phone and displayed a deadly weapon in order to keep the phone. Thus, the evidence shows “that the property was taken while [Rone] was under the influence of fear” by the display of a deadly weapon. Clayton, 759 So.2d at 1172 (¶ 8).

¶ 21. The dissent argues Rone was not placed in fear as a result of the display of the gun, as “demonstrated by his grabbing and clinging on to Oliver’s car after Oliver had pointed a cocked gun at him.” However, Rone testified he was seared. Simply because Rone did not act as the dissent would expect does not make Oliver less culpable. People react differently to situations. Although Rone’s actions may have been unusual, it was for the jury, not this Court, to weigh the evidence and the credibility of the witnesses and to resolve that issue. Williams v. State, 64 So.3d 1029, 1033 (¶ 13) (Miss. Ct. App. 2011).

¶22. Having considered the evidence presented, we do not find the verdict to'be so contrary to the overwhelming weight of the evidence that to allow the verdict to stand would sanction an unconscionable injustice. Accordingly, we find the circuit court’s denial of Rone’s motion for a new trial was proper. We find no error and affirm.

¶ 23. AFFIRMED.

LEE/C.J., BARNES, ISHEE, CARLTON, WILSON ÁND GREENLEE, JJ., CONCUR. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY FAIR AND WESTBROOKS, JJ.

FAIR AND WESTBROOKS, JJ., JOIN THIS OPINION.

IRVING, P.J.,

DISSENTING:

¶24. With respect, I must dissent because I cannot agree with the majority that the evidence supports a finding that Oliver committed armed robbery. While the evidence supports a finding that Oliver committed larceny and maybe an aggravated assault, he was not charged with either of those offenses. But since larceny is a lesser-included offense of armed robbery, I would reverse Oliver’s conviction and sentence, for armed robbery and remand the case to the circuit court for sentencing Oliver for the offense of petit larceny.

¶25. To fully evaluate my contention that the evidence does not support, the conviction of armed robbery, I quote the relevant testimony of the victim; Christian Rone:

So I was on my way back from school from tutoring on a Saturday morning, and I was riding my skateboard down the sidewalk of Rasco Road, and while I was passing by, I saw John Oliver in his Dodge Intrepid passing- by with someone else, and when I passed by he hooked [sic] at me, and I looked at him. I made eye contact, but I didn’t have any like relevance of it, and when I kept going, I saw him turn around out of my — like out of my peripheral vision, and I didn’t think anything of it at the moment.
So I kept on skateboarding, and the next thing I know, I see him on the right side of me, and he’s pulling by saying, “Hey Christian. Hey.” So I kind of looked over and waved at him and said hey,, and he pulled in front of me. So I was like he must want something. So I pulled over there and asked him what he wanted, and he like, “Can I use your phone for a second?’ I was like,' “Yeah, you can use my phone.”
And he used my phone for a second, pushed a few buttons, and then he said, I’m going to keep the phone.” I was like, “No you’re going to give me my phone back, John.” And he was like, “No, I’m going to keep your phone.” I was like, “No, give me my phone back now.” He was like, “Who do you think you’re talking to?”
So he takes his right hand and grabs under the seat and pulls out a gunj and he points it at me, just kind of gesturing me like saying, no, I’m going to keep the phone. And I was like, “No John, give me my phone back now.” And he’s like, “No, I don’t think you know who you’re talking to,”
So he cocks the gun and points it at me more like under my neck, and so he kind of — it kind of shocked me at the moment when he did that. So I was more relevant of like [sic], “Now, come on man. I .just want my phone back. I just want my phone. That’s all I want and this can be over with.” He was like, “No, I think I’m going to keep my phone.” And when he said, that, he started the car up, and he was about to pull off. >
When-he did that, I kind of grabbed onto the side:of the car and I tried to hold on, kind of. like a last effort movement to try to, you know, tell him you can just give me my phone back and this could be all over, and he drove off, and when he did, he tried to pry my hands off the window while he-was driving with one hand, and since he couldn’t do that, he just like pushed the car over into a gutter, and he threw me off my skateboard and he drove off.

¶ 26. Mississippi Code Annotated section 97-3-79 (Rev. 2014) defines armed robbery:

Every person who shall feloniously take or .attempt to take from the person or from the presence the personal property of another and against his will- by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery.

It is clear from Rone’s testimony that Oliver did not take the cell phone from him or from his presence by violence to his person or by putting him in fear of immediate injury to his person by the exhibition of the gun. Rather, the cell phone was taken by deceit or artifice, as Rohe voluntarily relinquished his phone to Oliver.

¶27. Apparently, the majority reasons that the phone was not taken from Rone until Oliver displayed, the gun. The word “take” is not a word of art. The American Heritage College Dictionary, Third Edition, gives the following meaning, among others, for the word “take”: “To get into one’s possession by force, skill, or artifice.” It cannot be legitimately _argued, based on the general and ordinary meaning of the word ‘.‘take,” that Oliver had not taken the cell, phone from Rone prior to Oliver displaying the gun. It is clear that the display of the gun played no part in the taking of the cell phone. It is also equally clear— even though -the gun played no role in the taking of the cell phone — that Rone was not placed in any fear or apprehension as a result of the display of the gun. That is demonstrated by his grabbing and clinging on to Oliver’s car after Oliver had pointed a cocked gun at him.

¶28. For the foregoing reasons, I dissent.

      .. Count I was subsequently remanded to the file.

      . Hubbard did not testify.

      . Rone testified that Oliver was still pointing the gun at him as he drove off.