source: Caselaw Access Project

author: JAMES, J.,

license: Public Domain

text:
    Daniel S. FILLINGAME, Appellant v. MISSISSIPPI STATE FIRE ACADEMY, A Division of Mississippi Insurance Department, State of Mississippi, Reggie Bell and Daniel Cross, Appellees
    NO. 2014-SA-01830-COA
    Court of Appeals of Mississippi.
    09/06/2016
    Rehearing Denied February 7, 2017
    Certiorari Denied April 27, 2017
    DANIEL S. FILLINGAME (PRO SE), for appellant.
    JAMES T. METZ, DONALD L. KIL-GORE, JOHN R. HENRY JR., ALAN M. PURDIE, LEE DAVIS THAMES JR., BRANDON LEE WHITE, for appellees.
    BEFORE ISHEE, P.J., CARLTON AND JAMES, JJ.
   JAMES, J.,

FOR THE COURT:

¶ 1. Daniel Fillingame appeals from the circuit court’s order granting a joint motion to dismiss filed by the Mississippi State Fire Academy, a division of the Mississippi Insurance Department of the State of Mississippi (“Academy”); Reggie Bell, the Academy’s executive director; and Daniel Cross, the Academy’s instructor chief (collectively, “Defendants”). The circuit court determined that it lacked subject-matter jurisdiction and dismissed the case with prejudice.

¶ 2. We find that the circuit court correctly concluded that it lacked subject-matter jurisdiction. However, we find that the circuit court lacked jurisdiction because Fillingame did not exhaust his administrative remedies before seeking relief fi’om the circuit court. We dismiss this case without prejudice so that Fillingame may seek administrative relief, if he desires,

FACTS AND PROCEDURAL HISTORY

¶ B. Fillingame first enrolled in the Academy’s firefighter-training program in 2006. Fillingame withdrew from the program on five occasions for medical reasons and an additional occasion for failing a course. On February 13, 2009, Fillingame filed a complaint (Fillingame I) in the Hinds County Circuit Court against the Academy, after the Academy refused to allow him to re-enroll for a seventh time in the program. Fillingame’s complaint alleged wrongful termination; negligence and gross negligence; breach of contract and tortious breach of contract; negligent and intentional infliction of emotional distress; and slander and defamation.

¶4. On December 30, 2010, the circuit court dismissed Fillingame’s tort claims. However, the circuit court found that Fil-lingame was entitled to á judgment as a matter of law on his breach-of-contract claim. The circuit court found that Fillin-game had an implied contractual right to return to the program because the Academy’s policy was to permit a trainee to re-enroll after a medical withdrawal. The circuit court ordered specific performance of the implied contract, i.e., required the Academy to allow Fillingame to re-enroll. In accordance with the court order, Fillin-game re-enrolled and returned to the Academy on April 4, 2011, to complete his last week of the program.

¶ 5. After Fillingame completed his training, the Academy issued him a certificate on April 12, 2011. The certificate provided that Fillingame had completed the National Fire Protection Association (NFPA) Firefighter 1001 Standard, Levels I and II (2002 Edition). Because Fillin-game was unsatisfied with the type of certificate issued, he filed a motion to impose remedial sanctions for contempt of court and for an award of monetary and consequential damages on January 25,2012.

¶ 6. Fillingame argued that the Academy was in contempt of the January 2011 order that compelled the Academy to permit him to re-enroll. Although Fillingame conceded that the Academy allowed him to re-enroll, he claimed the Academy failed to act in good faith because the Academy’s contractual duty to re-enroll him carried the obligation to issue proper credentials upon the completion of the training. He claimed that the Academy certifying him under the 2002 edition, rather than the 2008 edition, was improper and constituted a breach of the implied contract.

¶7. On September 12, 2012, the circuit court entered an order denying Fillin-game’s contempt motion. Fillingame appealed and, on June 30, 2015, this Court affirmed the circuit court’s order denying Fillingame’s motion for contempt. Fillingame v. State (Fillingame I), 187 So.3d 155, 159 (¶ 19) (Miss.Ct.App.2015).

¶ 8. In Fillingame I, this Court explained the significance of the type of certificate issued to Fillingame:

Because Fillingame began his training in 2006, when the NFPA 2002 standard edition was in place, the Academy certified him as having completed that edition. But according to Fillingame, after he failed a course in late 2007, he had to start his training all over again when he re-enrolled in spring 2008. And by this time, he claims, the Academy had implemented the 2008 edition of the NFPA 1001 Standard - an assertion the Academy denies.
What particular edition—2002 versus 2008—Fillingame completed impacts his ability to apply for certification with the Mississippi Fire Personnel Minimum Standards and Certification Board (MSCB). To be certified by the MSCB as having met the minimum training standards for a full-time professional firefighter, Fillingame would need not only a certificate from the Academy stating he completed the NFPA 1001 Standard, Levels I and II, but also the certificate must have a seal of accreditation from the International Fire Service Accreditation Congress (IFSAC), an independent non-profit organization based in Oklahoma. Miss. Code Ann. § 45-11-203 (Rev.2011); Miss. Admin. Code 19-101:1.07. Fillingame’s certificate received no seal because, by April 2011, the IFSAC was no longer accrediting the 2002 edition of the NFPA 1001 Standard.

Id. at 157 (¶¶ 7-8).

¶ 9. While Fillingame I was pending on appeal in this Court, Fillingame filed a second complaint (Fillingame II) in the Hinds County Circuit Court against the Academy, Bell, Cross, and the State of Mississippi on April 11, 2014. The Fillin-game II complaint alleged breach of contract; breach of the implied covenant of good faith and fair dealing; negligent misrepresentation; compensatory damages; exemplary damages; and attorney’s fees and costs.

¶ 10. On April 28, 2014, the Defendants filed a motion to dismiss or, alternatively, for summary judgment. The circuit couit granted the Defendants’ motion to dismiss. The circuit court stated that the allegations in Fillingame II were the same allegations that were raised in the contempt action in Fillingame I. The circuit court concluded that it did not have subject-matter jurisdiction and dismissed the case with prejudice. On December 30, 2014, Fil-lingame filed his notice of appeal.

¶ 11. On appeal, Fillingame argues that the circuit court erred by (1) dismissing the case for lack of jurisdiction, and (2) ignoring viable claims against the Defendants. Our opinion is limited to the jurisdictional issue as we find it is dispositive.

STANDARD OF REVIEW

¶ 12. “The determination of whether jurisdiction over a particular matter is proper is a question of law; therefore, this Court must apply a de novo standard of review to this issue.” Winding v. State, 908 So.2d 163, 165 (¶ 8) (Miss.Ct.App.2005) (citing Sanderson Farms Inc. v. Gatlin, 848 So.2d 828, 841 (¶ 38) (Miss.2003)).

DISCUSSION

¶ 13. The Defendants argue that the circuit court lacked jurisdiction because Fillingame failed to exhaust his administrative remedies. Fillingame argues that the Defendants waived the argument for lack of jurisdiction because it has been raised for the first time on appeal. However, lack of jurisdiction may be raised for the first time on appeal. Williams v. Michael, 319 So.2d 226, 227 (Miss.1975). It is well settled that “[a] complainant must exhaust the administrative remedies available to him before resorting to the courts for resolution of his dispute.” State v. Beebe, 687 So.2d 702, 704 (Miss.1996).

¶ 14. In Fillingame I, we determined that “Fillingame’s real grievance ha[d] to do with the certificate the Academy issued him at the end of his training.” Fillingame I, 187 So.3d at 156 (¶2). Furthermore, “the [circuit] court’s order directing the Academy to re-enroll him did not mandate the type of certificate he would receive. Id. Rather, this was a later-made administrative decision by the Academy, for which Fillingame could not seek circuit court review by simply filing for contempt.” Id. For this reason, we held:

[T]he type of certificate Fillingame should have received upon completion of his training was not a matter of contract law that could be resolved by going back to the 2009 breach-of-contract action. It was instead an administrative decision, which the Legislature expressly conferred upon the Academy. Miss. Code Ann. § 45-11-7(6) (Rev.2011) (requiring the Academy to “present an appropriate certificate signifying the successful completion of its prescribed courses”).
While agency decisions may be subject to judicial review, the procedural posture of this case is not an appeal of an agency’s decision, filed after the exhaustion of administrative remedies. Rather, Fillingame filed a motion for contempt, seeking to enforce a court order entered before the Academy even made the decision to certify Fillingame under the 2002 standards.
We thus find any grievance Fillingame may have with his certificate is a separate administrative issue completely outside the circuit court’s January 2011 order. So Fillingame could not use his motion for contempt, based on that order, to prompt judicial review of the Academy’s decision. For this additional reason, we find the judge properly denied the motion for contempt.

Id. at 158-59 (¶¶ 16-18).

¶ 15. Fillingame claims that he does not have any administrative remedies to exhaust. We disagree. Under Mississippi Code Annotated section 45-11-253 (Rev. 2015), the Mississippi Fire Personnel Board (MFPB) is tasked with promulgating the administrative rules and regulations for minimum standards and certifications for firefighter training. Rule 1.14 of the Rules and Regulations for Minimum Standards Certification outlines the appeals process relating to any certification issue:

Appeals to any certification issue shall be made to the Board and submitted within one (1) year of the date of the original action. Such appeals may be initiated by an individual or through the executive fire officer of the local fire fighting unit. Once a written appeal has been filed, the individual may petition the Board in person at a regularly scheduled meeting of the MSCB. Upon hearing the basis of the appeal, the chair may forward the appeal to [the] appropriate committee for further investigation and a recommendation for action. The Board will communicate its final decision in writing within thirty (30) days following any action taken on the issue.

¶ 16. In lieu of seeking administrative relief under Rule 1.14, Fillingame filed a contempt action in Fillingame I, which was denied and ultimately affirmed by this Court on appeal.

¶ 17. Fillingame claims that his contempt action in Fillingame I differs from Fillingame II, because the contempt action in Fillingame I was based on the certificate he was issued, whereas here his claim is relative to being placed in an “obsolete NFPA (2002 [edition]) firefighter training course.” Fillingame claims that the Defendants led him to believe that he was enrolled in the 2008 edition NFPA firefighter training and did not realize he was placed in the 2002 edition NFPA firefighter training until he completed his training in April 2011.

¶ 18. Although Fillingame frames the issue as strictly dealing with what training program he completed, his grievance is ultimately based on his certificate being eligible for a seal of accreditation from IFSAO. Nonetheless, the Academy’s decision to place him in the 2002 edition NFPA program was an administrative decision.

¶ 19. “It is the intent of the Legislature to require and provide minimum standards for training and to declare that the State Fire Academy is the principal facility for such purposes.” Miss. Code Ann. § 45-11-201 (Rev.2015). The Academy’s decision to certify Fillingame under the 2002 edition was an administrative decision. Like we held in Fillingame I, Fillingame’s dispute is based on an administrative decision for which he must exhaust his administrative remedies before resorting to the courts for relief.

CONCLUSION

¶20. The circuit court correctly found that it lacked subject-matter jurisdiction. We find that the circuit court lacked jurisdiction because Fillingame failed to exhaust his administrative remedies before resorting to the circuit court for relief. We dismiss the case without prejudice so that Fillingame may proceed administratively, if he desires,

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

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

      . Whether the statute of limitations bars Fil-lingame’s grievance under the Mississippi Fire Personnel Board’s administrative rules and regulations is not an issue before this Court. That issue will need to be determined if Fillingame pursues administrative relief.


author: GRIFFIS, P.J.,

text:
    Mary J. ARCHER Appellant v. Mitchell J. CREEL Appellee
    NO. 2015-CP-01079-COA
    Court of Appeals of Mississippi.
    09/13/2016
    Rehearing Denied February 14, 2017
    Certiorari Denied May 11, 2017

      WASHINGTON COUNTY CIRCUIT COURT, L. BRELAND HILBURN, J.
    MARY J. ARCHER (PRO SE), for Appellant.
    KINNEY M. SWAIN, for Appellee.
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. Mary Archer filed this action against Mitchell Creel in the Washington County Circuit Court. The trial court found that the statutes of limitation precluded Archer’s claims and granted Creel’s motion for summary judgment. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On March 6, 2010, Archer signed an employment contract to retain Creel to represent her brother with his post-conviction proceedings, including appearing at his sentencing hearing and filing his post-trial motions. As part of the agreement, Archer paid Creel a $10,000 retainer. Creel appeared at the sentencing hearing. However, he referred the preparation of the motions for a new trial and a judgment notwithstanding the verdict (JNOV) to another attorney, Julie Epps. According to the record, Epps and Creel submitted the motions to the trial court on May 10, 2010,

¶ 3. On August 24, 2010, Archer sent a letter to Creel terminating his employment. Archer alleged that Creel breached his contract and did not render the services promised. On September 11, 2011, Archer filed a complaint against Creel with the Mississippi Bar Association. The Mississippi Bar conducted an investigation and dismissed the complaint in a letter dated April 13, 2012.

¶ 4. After the Mississippi Bar ended its investigation, Archer filed her complaint on April 21, 2014. The complaint alleged fraud, breach of contract, and legal malpractice. On May 29, 2015, Creel filed a motion for summary judgment. Creel argued the statutes of limitation for each claim expired prior to the commencement of Archer’s suit. On June 25,2015, the trial court granted Creel’s motion. Archer now appeals.

STANDARD OF REVIEW

¶ 5. “This Court applies de novo review to the grant of summary judgment.” Bennett v. Hill-Boren P.C., 52 So.3d 364, 368 (¶ 12) (Miss.2011) (quoting Fletcher v. Lyles, 999 So.2d 1271, 1276 (¶ 20) (Miss.2009)). “When reviewing the evidence on summary judgment, the Court should view the evidence in the light most favorable to the nonmovant.” Id. Further, “[t]his Court applies a de novo standard of review to the statute of limitations.” Fletcher, 999 So.2d at 1276 (¶ 21).

ANALYSIS

¶ 6. Archer contends that the trial court erred when it determined that the statutes of limitation began to run on her claims on August 24, 2010, when she terminated Creel’s employment. Rather, Archer argues the statutes of limitation were tolled until the Mississippi Bar dismissed her complaint on April 13, 2012. Alternatively, Archer asserts that Creel never obtained permission to withdraw from the case, which tolled the statutes of limitation until Creel was removed from the case.

¶ 7. A three-year statute of limitations applies to legal-malpractice claims. Bradley v. Jordan, 182 So.3d 439, 440 (¶ 9) (Miss.2016) (citation omitted). The Mississippi Supreme Court has held that “the statute of limitations in a legal malpractice action properly begins to run on the date the client learns or through the exercise of reasonable diligence should learn of the negligence of his lawyer.” Champluvier v. Beck, 909 So.2d 1061, 1063 (¶ 11) (Miss. 2004) (quoting Greenline Equip. Co. v. Covington Cty. Bank, 873 So.2d 950, 956 (¶ 17) (Miss.2002)). This is known as the discovery rule. Bennett, 52 So.3d at 369 (¶ 15). “The discovery rule is applied when the facts indicate that it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act.” Id. (citation and internal quotations omitted). Therefore, this Court must determine when Archer first learned of Creel’s alleged legal malpractice.

¶ 8. Archer sent a letter to Creel alleging a breach of contract and deficient performance on August 24, 2010. The letter also served as a notice of termination of Creel’s services. Creel admits that he received the letter and mailed a response on September 2, 2010. He contends that this letter demonstrated that Archer knew of a potential legal-malpractice claim as of the date of Archer’s letter.

¶ 9. Archer, however, disputes this date as the start of the statute-of-limitations period. Rather, Archer asserts that her complaint with the Mississippi Bar tolled the running of the statute of limitations until the Mississippi Bar investigation concluded. Archer reasons that the pending Mississippi Bar complaint constituted an agency action, which precluded her from filing a civil suit before exhausting her administrative remedies. As such, Archer contends that she could not file her legal-malpractice action before dismissal of the Mississippi Bar complaint on April 13, 2012. This argument, however, fails.

¶ 10. “When primary jurisdiction is properly invoked, the agency and not a court should make the first decision; the doctrine of exhaustion of remedies requires that judicial review occur only after the administrative agency has made a complete decision.” Jeffrey Jackson, Encyc lopedia of Mississippi Law § 2:72 (2015). Thus, Archer’s argument for the exhaustion of her administrative remedies only applies if the Mississippi Bar enjoys primary jurisdiction over her legal-malpractice action. The supreme court, however, has “exclusive and inherent jurisdiction in matters pertaining to attorney discipline.” Miss. Bar v. Robinson, 918 So.2d 1264, 1265 (¶ 5) (Miss.2005) (citing R. Discipline Miss. State Bar 1). As such, Archer’s argument fails, and the pendency of the Mississippi Bar complaint did not require Archer to wait before filing suit.

¶ 11. Additionally, “[clauses of action for breach of contract are subject to the three-year statute of limitations[.]” Wallace v. Greenville Pub. Sch. Dist., 142 So.3d 1104, 1106 (¶ 8) (Miss.Ct.App.2014) (citing Miss. Code Ann. § 15-1-49 (Rev. 2015)). Likewise, fraud claims have a three-year statute of limitations. Sanderson Farms Inc. v. Ballard, 917 So.2d 783, 789 (¶ 29) (Miss.2005). Both statutes of limitation arise under section 15-1-49, which holds that these claims arise “when it comes into existence as an enforceable claim[.]” Anderson v. LaVere, 136 So.3d 404, 411 (¶¶ 32-33) (Miss.2014).

¶ 12. Like the legal-malpractice claim, Archer stated in the August 24, 2010 letter that she believed Creel breached the employment contract. In fact, Archer titled the letter “Re Notification of Breach of Contact [sic].” Further, in her complaint, Archer stated that she received a copy of the employment contract that she alleged was altered by Creel. Archer admitted she received this copy on August 24, 2010, and used this allegedly altered contract as the basis of her fraud claim. Therefore, Archer knew that each of her claims arose as of August 24, 2010.

¶ 13. Because the Mississippi Bar proceedings did not toll the statute of limitations, the August 24, 2010 letter sufficiently shows that Archer knew of Creel’s alleged legal malpractice as early as that date. Also on this date, Archer admitted that she received a copy of the employment contract that she believed was altered and demonstrated Creel’s “fraudulent activities” and that Creel breached their employment contract. Under the applicable statute of limitations, Archer had until August 24, 2013, to file her action. Based on this evidence, Archer failed to timely file her suit. For these reasons, this Court affirms the trial court’s decision to grant Creel’s motion for summary judgment.

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

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


author: FAIR, J.,

text:
    Andrew Acie ADAMS a/k/a Andrew Adams, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-00520-COA
    Court of Appeals of Mississippi.
    10/04/2016
    Rehearing Denied February 21, 2017
    Certiorari Denied May 4, 2017

      HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, LAWRENCE PAUL BOURGEOIS JR., J.
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: PHILLIP BROADHEAD
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER

      BEFORE CARLTON, P.J., FAIR AND GREENLEE, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. Andrew Acie Adams was convicted of possession of marijuana after it was found in his vehicle pursuant to a search warrant. Adams claims on appeal that the police obtained the warrant by falsely claiming that a drug dog had indicated the presence of drugs inside the vehicle. We find this argument procedurally barred and, in the alternative, unsupported by the record. We affirm Adams’s conviction and sentence.

DISCUSSION

II2. Police officers encountered Adams after he double parked his vehicle, a Kia, in the road. The Kia was next to another vehicle Adams owned, a Chevrolet Impala, which was parked on the side of the road. Adams was shining a flashlight into the Impala, but when the officers approached, he returned to the driver’s seat of the Kia and appeared to be preparing to leave. When the officers activated their blue lights, Adams exited the vehicle and resisted instructions to remain where he was. Adams was arrested for blocking the roadway, and what were later determined to be synthetic cannabinoids were seen in plain view in the Kia. Adams’s wife was found to have additional synthetic cannabinoids and a stolen pistol in her purse. After a drug-detecting police dog alerted to the presence of illegal drugs in the Impala, the officers obtained a search warrant for the vehicle. The marijuana Adams was ultimately convicted of possessing was found in a plastic bag on the rear floorboard, driver’s side.

¶ 3. On appeal, Adams contends that the search warrant was illegally obtained based on a false statement in the supporting affidavit. He bases this claim on a dash camera recording of a drug-detecting dog’s walk around his vehicle. The recording shows the dog and its handler, Officer Michael Hauler, walking counterclockwise around the vehicle, starting at the passenger’s side rear corner. The pair walk around the vehicle, and as they pass the driver’s side rear corner, the dog appears to hesitate and jumps up toward the driver’s side taillight. It then walks further around the rear of the vehicle, where it is out of the video frame for a moment. The dog then returns to the driver’s side rear corner, where it bows, with its rear up and its front legs extended toward the vehicle, and begins excitedly sticking its muzzle into the seam between the bumper and the quarter panel.

¶ 4. The video then shows officers investigating the gap between the bumper and the quarter panel, the bumper itself, and the interior of the vehicle (by looking through the window on the rear driver’s side door). The officers subsequently obtained a warrant to search the vehicle, on an affidavit stating that the dog had alerted to the presence of illegal drugs “on the rear quarter panel.”

¶ 5. According to Adams, the video shows the dog indicating the presence of drugs in the bumper, which he contends is a discrete part of the vehicle that was open to the outside and thus could be, and was, verified not to contain drugs. He contends that after failing to find drugs in the bumper, the officers should have discounted the dog’s alert as a false positive, and thus they had no probable cause for a warrant to search the interior of the vehicle.

¶ 6. From our review of the record, this argument is procedurally barred. While Adams did present several written motions to suppress, only one arguably challenges the search warrant directly, and it is a form motion that appears to have been drafted to encompass every imaginable challenge to all of the evidence obtained against “the Defendant.” It was followed by a motion more specifically challenging Adams’s arrest, but not the search warrant for the Impala (except to the extent that it was claimed to derive from the arrest as fruit of the poisonous tree). Still, the trial judge allowed Adams great latitude with his original form motion and essentially heard any and every evidentiary challenge Adams was willing to present. But when offered the opportunity to present evidence and arguments relating to the search warrant for the Impala, Adams’s attorney simply “stood on the motion.” The trial judge then looked at the evidence that had been presented thus far on the other suppression issues, and he found that the warrant was legally issued. In elaborating on this ruling, the trial judge did observe that the dog “alerted positive on the rear quarter panel of the vehicle.” But this was not in response to any contentions by Adams to the contrary, and no real evidence was presented at the suppression hearing elaborating on the details on how the dog detected or indicated the presence of drugs. The failure to make this specific argument denied the State the opportunity to present evidence on the issue and denied the trial court the opportunity to make specific findings of fact on the contention. As a result, this issue is procedurally barred. See, e.g., Williams v. State, 994 So.2d 821, 828 (¶ 24) (Miss.Ct.App.2008).

¶ 7. Notwithstanding the procedural bar, we see no merit to this claim. Adams contends on appeal that the officers misled the issuing judge by claiming that the dog was alerting to the quarter panel rather than the bumper. On this point, Adams had to make “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit” and that “the allegedly false statement is necessary to the finding of probable cause.” Petti v. State, 666 So.2d 754, 758 (Miss.1995) (citing Franks v. Delaware, 438 U.S. 154, 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)). Adams then bore the burden to prove, by a preponderance of the evidence, that the challenged statement was perjured or made in reckless disregard of the truth. Id. Finally, Adams had to show that without the false statement, the affidavit did not establish probable cause for the search. Id. And since this was the search of an automobile, a warrant was not required; the search would nonetheless have been legal had probable cause existed notwithstanding the failure to describe it in the affidavit. See Townsend v. State, 681 So.2d 497, 502 (Miss.1996).

¶ 8. Adams fails to make even the threshold showing that the officers’ description of where the dog alerted was false. He attempts do so by reference to the dash cam video, describing how and where the dog jumps and what it did with its muzzle (sticking it between the bumper and the quarter panel). In these arguments, Adams seems to assume that this behavior constituted the alert. But the handler, Officer Hauler, testified (at trial) that the dog was actually trained to alert by pointing and scratching with its front paws; and the video in fact shows the dog doing this, though it is unclear whether the dog is pointing at the bumper or the quarter panel. According to Officer Hauler, the dog had alerted on the quarter panel where it met the bumper, and the behavior cited by Adams was actually the dog attempting to use its muzzle for leverage to make the alert gesture at a higher point on the vehicle. The video simply does not meet Adams’s burden to show that the affidavit’s statement that the dog alerted on the quarter panel is false.

¶ 9. Adams also fails to show that the allegedly false statement was material to whether probable cause was established in the affidavit. He seems to assume that, had the dog been pointing toward the bumper rather than the quarter panel, probable cause would have been limited to the bumper itself and there would have been nó probable cause to search the inside of the vehicle. For its part, the State concedes that if there was probable cause only to believe contraband would be found in one specific part of the vehicle, the warrant should have been so limited. See Millsap v. State, 767 So.2d 286, 292 (¶22) (Miss.Ct.App.2000). But Adams begs the question about what would have been indicated by an alert on the bumper rather than the quarter panel. There was no evidence introduced regarding the dog’s ability to pinpoint the exact location of contraband with the degree of certainty Adams assumes. Moreover, probable cause is a totality of the circumstances question. Batiste v. State, 121 So.3d 808, 859 (¶ 129) (Miss.2013). Even assuming that the dog was alerting on the bumper and that an alert to the bumper (taken alone) would have limited probable cause to the bumper, the detection of drug odors there would still be a fact to be considered in the totality of circumstances as to whether there was probable cause to search the interior of the vehicle; See United States v. Seals, 987 F.2d 1102, 1107 (5th Cir.1993). Adams fails to address that possibility.

¶ 10. Finally, Adams suggests that the warrant was invalid because the supporting affidavit failed to attest to the dog’s certifications, but this contention was not raised before the trial court and is procedurally barred on appeal. Furthermore, Adams presents no authority holding that a statement regarding the dog’s certification is required to support a search warrant; and even if it were, the search would still be valid as a warrantless search under the automobile exception, as the dog was, in fact, certified, and its training was discussed at length at trial. See Townsend, 681 So.2d at 502.

¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY, FIRST JUDICIAL DISTRICT, OF CONVICTION OF POSSESSION OF 250 OR MORE GRAMS OF MARIJUANA AND SENTENCE AS A HABITUAL OFFENDER OF SIXTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR EARLY RELEASE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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

      . Phillip W. Broadhead, clinical professor and director of the University of Mississippi School of Law Criminal Appeals Clinic, was appointed as Adams's appellate counsel. Third-year law students under Professor Broadhead's supervision were appointed as special counsel pursuant to Mississippi Code Annotated section 73-3-207 (Rev. 2012). Jody A. Bevill and Ethan D. Lavelle assisted in the preparation of Adams’s briefs, and Valerie Moss and Philip Summa presented oral argument.

      . Later, Adams slipped out of his handcuffs and had to be forcibly restrained.


author: BARNES, J„

text:
    Napoleon L. CASSIBRY, III, As Trustee of the N. L. Cassibry, Jr. Family Trust, Trustee Of the Cassibry Children Irrevocable Trust, Trustee of the June C. Cassibry Irrevocable Trust, Power of Attorney for June C. Cassibry and Managing Partner of the Cassibry Brothers Partnership, Napoleon L. Cassibry, III, Individually and John C. Cassibry, Individually, Appellants v. Graham W. CASSIBRY, Appellee
    NO. 2013-CA-01468-COA
    Court of Appeals of Mississippi.
    01/24/2017

      JEFFREY, A. LEVINGSTON, KAY-TIE MICHELLE PICKETT, FOR APPELLANTS.
    STEVEN TODD JEFFREYS, FOR APPELLEE.
    BEFORE LEE, C.J., BARNES AND ISHEE, JJ.
   BARNES, J„

FOR THE COURT:

¶ 1. This appeal results from the Bolivar County Chancery Court’s findings that Napoleon Cassibry III, as the Trustee of three separate irrevocable trusts, breached a duty of loyalty and a fiduciary duty to one of the trusts’ beneficiaries, Graham Cassibry, and was liable for damages, costs, and attorney’s fees. Napoleon argues that, as to two of the trusts, the chancery court erred in finding that he breached the duty of loyalty, and the damages awarded should be reduced. He also contends the court erred in awarding Graham attorney’s fees.

¶ 2. On review, we affirm the chancery court’s award of damages. However, as the attorney’s fees itemization was not properly admitted into the chancery court’s record, we reverse and remand for a hearing on the issue of attorney’s fees.

SUMMARY OF FACTS

1. The Family Trust

¶ 3. The patriarch of the Cassibry family, Napoleon Cassibry Jr., died on July 21, 1998, leaving an estate of $1,225,064. He was survived by his wife, June Cassibry; three sons: Napoleon, Graham, and John Cassibry; and their issue. Per the terms of his will, the Napoleon LePoint Cassibry Jr. Family Trust (Family Trust) was established, and his eldest son, Napoleon, was appointed as Trustee. The trust was initially valued at approximately $300,000, consisting of 2,789 shares of Mr. Cassi-br/s stock in Cleveland State Bank (CSB) (valued at $93 per share), and a one-half interest in the marital home, which was valued at $75,000. By June 2004, the Family Trust owned 5,558 shares of CSB stock and 7,500 shares of Covenant Bank stock. While the Family Trust was established “for the principal benefit” of June “for her lifetime,” the Trustee was authorized “in his discretion to pay to or for the benefit of my children and/or their issue any such withheld income deemed advisable for their maintenance, health and education (including post[-]graduate education).” The Trustee was also authorized to “sprinkle income to other beneficiaries,” after first looking to June’s “maintenance and health.” Upon June’s death, the Trustee was to transfer any remaining trust property in equal shares to the three sons.

¶ 4. From May 2003 to January 2008, it is undisputed that Napoleon withdrew at least $55,325 in funds from the Family Trust, which he characterized as “loans.” He claimed that June authorized the withdrawals. Napoleon also disbursed funds from the account for his daughters’ expenses. In 2004, Napoleon pledged the Family Trust’s stock holdings as collateral for a $200,000 CSB loan to buy stock in Paragon National Bank (Paragon). Because of a loss in stock value due to the economic climate, the pledged stock had to be sold in 2007 to repay the loan debt.

2. The Children’s Trust

¶ 5. On February 23, 1999, June formed the Cassibry Children Irrevocable Trust (Children’s Trust), with Napoleon appointed as Trustee. The trust was funded with 5,563 of June’s shares of CSB stock, which were collectively valued at approximately $517,000, and the beneficiaries were Napoleon, John, and Graham. The purpose of the trust was to avoid estate gift tax and to protect the assets from pending lawsuits involving John’s ex-wives. Although the agreement required the Trustee to “divide the Trust Principal into equal shares to create one Trust for each of the Grantor’s children[,]” with “[e]ach share [to] be administered separately,” the trust was at all times managed as one corpus.

¶ 6. Under article 4.2(a)(1) of the Children’s Trust agreement, Napoleon was vested with broad discretion to “pay to or for the benefit of the beneficiary any amount of the income along with any amount of principal from the Trust as the Trustee deems advisable for the health, education, maintenance, support and comfort of such beneficiary.” Article 5.6 stated that “[i]f there is insufficient cash to satisfy the withdrawal demand of a beneficiary, Trustee either may make a distribution in kind, or raise cash through a sale or borrowing, to satisfy the demand.” Furthermore, upon written request to the Trustee, each beneficiary could withdraw up to $10,000 within thirty days of the trust’s creation or within thirty days after additional contributions to the trust had been made “during any calendar year.” However, Napoleon withdrew funds in excess of the trust’s annual withdrawal provisions. He also pledged the trust’s entire 5,563 shares of CSB stock as collateral for a $200,000 loan to buy Paragon stock, which he was authorized to do under the trust’s terms.

3. The JCC Trust

¶ 7. On February 28, 2000, June established the June C. Cassibry Irrevocable Trust (JCC Trust), with Napoleon as Trustee, and the three brothers as beneficiaries. The sole purpose of this trust was to receive life-insurance proceeds upon June’s death. After expenses of the estate were paid, the beneficiaries were to receive the remaining proceeds in equal shares.

4. The Paragon Transaction

¶ 8. In 2004, Napoleon had the opportunity to purchase 40,000 shares of Paragon stock at $10 per share as an investment. He purchased 20,000 shares in his own name, and the other 20,000 shares were held by a shell partnership, Cassibry Brothers Partnership (CBP). Graham refused to participate in the Paragon venture; so Napoleon and John were the only CBP partners. As the chancery court noted in its findings, although the shares were held by Napoleon and CBP, there was a stock-collateralization agreement that stated actual ownership of the stock was “roughly” as follows: the Family Trust and CBP collectively owned seventy-five percent (75%), while Napoleon’s two daughters owned twenty-five percent (25%).

¶9. To purchase the shares, Napoleon used a personal $200,000 line of credit at CSB, as well as a Family Trust CSB $200,000 line of credit. The lines of credit were secured by the following collateral: 5,563 CSB shares associated with the Children’s Trust; 5,558 shares of CSB stock held by the Family Trust; 7,500 shares of Covenant Bank stock held by the Family Trust; and the life-insurance policy associated with the JCC Trust. The record reflects that, on October 22, 2004, Napoleon withdrew $190,000 from the Family Trust Union Planters (UP) checking account. The chancellor noted that $40,000 of that withdrawal was deposited into what the record suggests were Napoleon’s personal accounts. Napoleon claims that money also went to purchase the Paragon stock, but there is no documentation to that regard.

¶ 10. Unfortunately, the value of the Paragon stock plummeted in 2007 due to economic conditions. The loans used to purchase the stock were in default; so the trusts’ stock holdings were under threat of being sold at auction. To satisfy the debt, Napoleon found a purchaser for the CSB stock. However, since Graham never agreed to participate in the Paragon stock purchase, Napoleon and John distributed to Graham one-third of the Children’s Trust CSB stock.

¶ 11. Napoleon also sold June’s home, and Graham purchased her a condominium with the real-estate proceeds. June died in 2008, and $401,559.26 was paid into the JCC Trust. Napoleon used the assets to pay off debts and liabilities associated with the Paragon transaction, even though the trust’s terms did not authorize such expenditures.

SUMMARY OF PROCEDURAL HISTORY

¶ 12. On June 19, 2009, Graham filed a complaint against Napoleon, as Trustee and individually, and his brother, John, alleging that Napoleon breached his fiduciary duty in relation to the three trusts. Graham claimed that Napoleon had “misappropriated his mother’s, the trusts’ and/or partnership assets for his own use,” and pledged those assets in order to borrow money personally and/or purchase stock “from which he benefitted both directly and indirectly.” Graham also asserted that Napoleon, as his mother’s attorney-in-fact, had withdrawn monies from June’s IRA and pension accounts for Napoleon’s personal or family use, rendering June “virtually penniless” at the time of her death on December 21, 2008. Graham requested that Napoleon be removed as trustee and a constructive trust be established. Napoleon responded that “all transactions related to any of the Trusts were done with the knowledge and acquiescence” of Graham and John, and that “all said transactions were reasonable, warranted and justified under the circumstances then existing.” He further argued that any losses resulting from his investment of trust assets, i.e., the Paragon stock, were attributable to the economy.

¶ 13. On August 20, 2009, the chancery court preliminarily ordered Napoleon to deposit $239,299.60 related to the JCC Trust into the court registry. An accounting, was ordered by the chancery court on August 5, 2010. After meeting with the parties and their attorneys over the next few months, the accountant, Danny Bar-field, CPA, rendered his findings on December 29, 2010. The accounting report noted discrepancies in the accounting provided by Napoleon and the accountant’s findings. The accountant determined that Napoleon had withdrawn a total of $426,373.46 “as a beneficiary of his mother and father’s estate.” The items charged to John as a beneficiary totaled $155,371.71. As no items were charged to Graham “from the estates or life[-]insurance proceeds,” the accountant concluded that Graham was due $155, 317.71 from the life-insurance proceeds to “even him up with John” and that the remaining $70,578.71 from the life-insurance proceeds was “to be divided evenly” between John and Graham. He further concluded that Napoleon owed John and Graham $78,588.85 each.

¶14. Months later, Napoleon filed a motion in limine on September 27, 2011, seeking to exclude Barfield’s accounting report and to strike Barfield from testifying regarding his findings. At the motion hearing on December 6, 2011, Barfield testified that he had reviewed bank statements on “six or seven bank accounts from 1999 until 2010,” noting the documentation he received was “very disorganized!, v]ery convoluted, mixed up, thrown about.” He said Napoleon had provided accountings that were “somewhat helpful in that there were checks that he had written to himself or for his personal benefit,” which Barfield “charged” to him. Barfield determined that there should have been $807,587.29 in the estate or trust had the withdrawals not been made. Dividing that number by three, he calculated that each heir would be entitled to $269,195.76 “if those personal withdrawals had not been made to the benefit of Napo[leon] and John!,] and if the two general partners and the partnership repaid the loans from the insurance trust and the estate.” Therefore, he concluded Napoleon had withdrawn $157,177.70 ($426,373.46 - $269,195.76) more than he was entitled; divided that figure by two; and determined that Napoleon owed John and Graham $78,588.85 each. Napoleon did not contest Barfield’s characterization of the transactions during their meetings. When Napoleon’s counsel questioned Bar-field as to why he did not do a more detailed reconciled accounting, Barfield stated that he had told counsel in a previous meeting he was not going to “burn up two hundred thousand dollars doing useless work[.]”

¶ 15. Noting the accountant was “agreed upon by the parties,” and the issues cited by Napoleon were brought several months after the issuance of Barfield’s report, the chancellor denied Napoleon’s motion in li-mine and accepted the report “as a working document for information purposes.” She did clarify that whether something was classified as a loan or investment would be determined by the court, not Barfield. Graham’s motion to establish a constructive trust was also denied, as the court found that the assets of the trusts had essentially been depleted.

¶ 16. After a bench trial, the chancery court entered its -findings of fact on May 17, 2013. Although the chancellor determined that Napoleon’s investment decisions concerning Paragon were not a breach of fiduciary duty, since no one could have predicted the economic downturn, she did conclude that Napoleon had a duty of loyalty as Trustee, and his cash withdrawals and loans for his own benefit from the three trusts were a “blatant example of breach of fiduciary duty.” The chancellor held: “[Napoleon] took advantage of the situation and used the trusts as his own personal accounts. He made withdrawal after withdrawal that served only him and did nothing for the other beneficiaries. ... These withdrawals depleted the trusts and proximately caused injury to the other beneficiaries.” The chancellor also determined that Graham was entitled to 7,757 of the Paragon shares, as a beneficiary of the Family Trust. The chancery court, however, rejected Graham’s remaining claims and Napoleon’s counterclaim, and denied Graham’s request for an award of attorney’s fees. In the final judgment entered on May 28, 2013, the chancery court awarded Graham and John the remaining JCC Trust insurance proceeds on deposit with the chancery clerk, with each receiving $109,190.07, Furthermore, Napoleon was ordered to pay Graham an additional money judgment of $143,665.86, “plus post-judgment interest in the amount of eight percent (8%) per annum from the date of the judgment.”

¶ 17. Both -parties filed Mississippi Rule of Civil Procedure 59 motions to alter or amend the judgment. Napoleon argued the chancery court should have allowed him credit for certain deposits made into the trusts, totaling $112,887.65. Attached to the motion was a document created by Napoleon containing dates and amounts. Graham cited several issues in his motion for reconsideration, including requests that the transfer of Paragon shares be addressed in the final judgment and that he be awarded attorney’s fees. On July 30, 2013, the chancery court issued supplemental findings. She denied Napoleon’s request to be given credit for the deposits, noting the accountant had listed the designated deposits as “Misc./Unexplained,” and Napoleon knew since December 2010 that he had not been given credit for “these mysterious deposits.” The chancellor concluded that “it remain[ed] unclear where those funds originated.” The court did amend the judgment, however, awarding Graham $28,500 in attorney’s fees, in addition to $144,865.86 in monetary damages. Napoleon was also ordered to pay $17,902 in costs (for the accounting), and to transfer 7,757 shares of Paragon National Bank stock to Graham.

¶ 18. Napoleon brings three arguments on appeal: (1) the chancellor erred in finding his “loans” from the Children’s Trust constituted a breach of the duty of loyalty; (2) the chancellor erred in awarding damages for the Family Trust, as he had June’s “express knowledge and consent” to make the withdrawals; and (3) there was no credible evidence to support the award of attorney’s fees to Graham. Napoleon does not appeal the award of funds to Graham and John related to the JCC Trust, the award of the costs for the accountant, or the transfer of Paragon stock to Graham. He requests that this Court reverse the damage award related to the Family Trust and Children’s Trust ($135,-045) and the award of attorney’s fees, and render a judgment of $9,820.86 in damages ( JCC Trust) and $17,902 in costs. Alternatively, he argues that a remand on the issue of attorney’s fees is warranted.

¶ 19. Finding substantial evidence supports the chancery court’s findings related to the Children’s Trust and the Family Trust, we affirm the judgment in part. We reverse and remand on the issue of attorney’s fees, however, as Graham admits that the itemization of charges for attorney’s fees was not properly contained in the record.

STANDARD OF REVIEW

¶ 20. “Factual findings made by the chancery court will not be disturbed if they are supported by substantial evidence unless we can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard.” Robinson v. Trustmark Nat’l Bank, 179 So.3d 1146, 1148 (¶ 9) (Miss. Ct. App. 2015) (quoting Finch v. Finch, 137 So.3d 227, 232 (¶ 10) (Miss. 2014)).

DISCUSSION

I. Whether the chancellor erred in finding Napoleon’s withdrawals or “loans” from the Children’s Trust constituted a breach of the duty of loyalty.

A. Whether it is a breach of the duty of loyalty under Mississippi Code Annotated section 91-8-802(b)(l) (Supp. 20U) for the trustee to make loans to himself as beneficiary.

¶21. Napoleon contends the chancellor applied an erroneous legal standard in finding that Napoleon’s “loans” from the Children’s Trust constituted a breach of the duty of loyalty. Under the terms of the trust agreement, the Trustee was authorized to “make loans, secured or unsecured, with interest or without, to the executor of the estate of the Grantor, or to a beneficiary, and shall be without liability for a loss resulting therefrom.” (Emphasis added). Since he was a beneficiary, Napoleon argues: “[T]he [c]hancellor imposed upon [him] a duty to refrain from doing what the Children’s Trust authorized him to do.” He cites Mississippi Code Annotated section 91—8—802(b)(1),” which provides in part:

(b) [A] sale, encumbrance, or other transaction involving the investment or management of trust property entered into by the trustee for the trustee’s own personal account or which is otherwise affected by a conflict between the trustee’s fiduciary and personal interests is voidable by a beneficiary affected by the transaction unless:
(1)The transaction was authorized by the terms of the trust[.]

¶ 22. However, section 91-8-802 was not enacted until 2014, after the chancery court entered its amended final judgment. Graham argues that the statute cannot be applied retroactively to any acts made by Napoleon prior to that date. Napoleon responds that Mississippi Code Annotated section 91-8-1106 (Supp. 2014) renders the statute retroactive and, thus, applicable to the Children’s Trust agreement, citing specifically subsections (a)(1) and (a)(3). Section 91-8-1106 provides in full:

(a) Except as otherwise provided in this chapter:
(1) This chapter applies to all trusts created before, on, or after July 1, 2014;
(2) This chapter applies to all judicial proceedings concerning trusts commenced on or after July 1, 2014;
(3) This chapter applies to judicial proceedings concerning trusts commenced before July 1, 2014, unless the court finds that application of a particular provision of this chapter would substantially interfere with the effective conduct of the judicial proceedings or prejudice the rights of the parties, in which case the particular provision of this chapter does not apply and the superseded law applies;
(4) Any rule of construction or presumption provided in this chapter applies to trust instruments executed before July 1, 2014, unless there is a clear indication of a contrary intent in the terms of the trust; and
(6) An act done before July 1, 2014, is not affected by this chapter.
(b) If a right is acquired, extinguished, or barred upon the expiration of a prescribed period that has commenced to run under any other statute before July 1, 2014, that statute continues to apply to the right even if it has been repealed or superseded.

(Emphasis added). Upon review, since the statute was not enacted until after the chancery court rendered its decision, applicability of the new statute would “substantially interfere with the effective conduct of the judicial proceedings” under subsection (a)(3). Further, subsection (a)(5) is applicable to Napoleon’s actions taken before July 1, 2014. This provision is discussed in the comments to the Model Uniform Trust Code (Rev. 2010), which states:

The Uniform Trust Code is intended to have the widest possible .effect within constitutional limitations. Specifically, the Code applies to all trusts whenever created, to judicial proceedings concerning trusts commenced on or after its effective date, and unless the court otherwise orders, to judicial proceedings in progress on the effective date. In addition, any rules of construction or presumption provided in the Code apply to preexisting trusts unless there is a clear indication of a contrary intent in the trust’s terms. By applying the Code to preexisting trusts, the need to know two bodies of law will quickly lessen.
This Code cannot be fully retroactive, however, .., [Rjights already barred by a statute of limitation or rule under former law are not revived by a possibly longer statute or more liberal rule under this Code. Nor is an act done before the effective daté of the Code affected by the Code’s enactment.

(Emphasis added). Napoleon’s withdrawals are “act[s] done before July 1, 2014,” and are not “affected by the Code’s enactment.”

¶ 23. In its findings of fact, the chancery court relied on common-law principles, citing the Restatement (Third) of Trusts § 78, which provides that “a trustee has a duty to administer the trust solely in the interest of the beneficiaries[,] ,.. [and] except in discrete circumstances, the trustee is strictly prohibited from engaging in transactions that involve self-dealing or that otherwise involve or create a conflict between the trustee’s fiduciary duties and personal interests.” In McWilliams v. McWilliams ex rel. Weathersby, 994 So.2d 841, 849 (¶ 29) (Miss. Ct. App. 2008), we observed:

The trustee owes a duty to the beneficiaries' to administer the affairs of the trust solely in the interests of the beneficiaries .... This is called the duty of loyalty. ... In enforcing the duty of loyalty the court is primarily interested in improving trust administration by deterring trustees from getting into positions of conflict of interests.

(Quoting George Bogert, Trusts § 95 (6th ed. 1987)). This duty of loyalty has been codified in Mississippi Code Annotated section 91-9-609 (Supp. 2014), which states: “A trustee shall invest and manage the trust assets solely in the interest of the beneficiaries.”

¶ 24. Even if the recently codified exception to the duty of loyalty applied, as argued by Napoleon, it would not permit a trustee to disregard completely his duties as a fiduciary. The Court of Appeals of Michigan, addressing its identically worded statute regarding a trustee’s duty of loyalty in Michigan Compiled Laws Annotated 700.7802(1) and (2) (Rev. 2010), determined: “While the trust granted [the] appellant the power as trustee to make transfers of trust property, it did not grant her the right to engage in self-dealing.” In re Beverly J, LaForest Living Tr., No. 323296, 2016 WL 56875, at *2 (Mich. Ct. App. Jan. 5, 2016).

Even an express authorization of this type .,. would not completely dispense with the trustee’s underlying fiduciary obligations to act in the interest of the beneficiaries and to exercise prudence in administering the trust. Accordingly, no matter how broad the provisions of a trust may be in conferring power to engage in self-dealing or other transactions involving a conflict of fiduciary and personal interests, a trustee violates the duty of loyalty to the beneficiaries by acting in bad faith or unfairly.

Mennen v. Wilmington Trust. Co., No. CV 8432 ML, 2015 WL 1914599, at *25 (Del. Ch. Apr. 24, 2015) (emphasis added) (quoting Restatement (Third) of. Trusts § 78 (2007)).

¶ 25. We find no merit to Napoleon’s claim that the chancellor erroneously applied the duty of loyalty.

B. Whether the chancellor’s finding that Napoleon’s withdrawals from the Children’s Trust “depleted the trusts and proximately caused, injury to the other -beneficiaries” is manifestly wrong.

¶26. Napoleon does not deny he withdrew a significant amount of funds from the Children’s Trust. He merely argues the chancellor’s holding is “manifestly wrong,” as the trust agreement authorized him to make the withdrawals or “loans,” and he “depleted only his own share and John’s share,” leaving Graham to receive his share “free and clear.” As Napoleon acknowledges, “each child only had access to his individual gift by borrowing against it,” which is what he claims that he did under the express authority of the trust agreement’s terms. He avers that he only took $159,493.28 in “loans” from the Children’s Trust from 1999 to 2007, noting his individual share of the trust’s corpus “was roughly $172,453.”

¶27. Therefore, he contends that since there was no evidence of any injury suffered by Graham as a result of Napoleon’s “loans to himself,” there was no breach of fiduciary duty. “In other words, there was no testimony or evidence whatsoever demonstrating that the value of Graham’s share of the Children’s Trust was impaired by Napoleon’s loans against his share.” There is no dispute that Napoleon was authorized to make loans to himself as a beneficiary under the terms of the trust; nor does Graham argue that Napoleon took more than his one-third share. Rather, Graham asserts Napoleon breached his fiduciary duty with the “thousands of dollars poured into the Children’s Trust accounts and thousands of dollars poured directly into Napo[leon] and his family’s pockets,” Napoleon violated the trust’s “annual withdrawal limits,” and he failed to provide a proper accounting “as required by the trust.”

¶ 28. The chancellor found that Napoleon’s withdrawals of funds were a “blatant example of a breach of fiduciary duty.” The record fully supports this finding. Even express authorization to engage in transactions otherwise prohibited under a trustee’s duty of loyalty does not “completely dispense with the trustee’s underlying fiduciary obligations to act in the interest of the beneficiaries and to exercise prudence in administering the trust.” Restatement (Third) of Trusts § 78 cmt. c(2) (2007). As this Court explained in Wilbourn v. Wilbourn, 106 So.3d 360, 371 (¶ 35) (Miss. Ct. App. 2012):

“A trustee has a duty to act with due regard to his obligation as a fiduciary.” Miss. Code Ann. § 91-9-107(2) (Supp. 2011). A “fiduciary” is “required to act for the benefit of another person on all matters within the scope of their relationship,” owing “the duties of good faith, trust, confidence, • and candor.” Black’s Law Dictionary 658 (8th ed. 2004). “The touchstone of the fiduciary relationship between the trustee and his beneficiaries is loyalty.” Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law § 73:8 (2001).... “The interests of the beneficiaries are paramount, and nothing should be done that would diminish their rights under the terms of the agreement and granted by law. One in a fiduciary position, such as a trustee, cannot take advantage of that position of trust in administering the assets entrusted to him or her.” Id.

Instead of “actfing] with due regard to his obligation as a fiduciary,” Napoleon clearly violated the terms of the trust agreement. Article 5.1 of the Children’s Trust agreement provided in part:

Subject to the limitations of Article 5.2, upon a contribution to the Trust of cash or property, each beneficiary ... shall have the light to withdraw the first Ten Thousand Dollars ($10,000.00) (or Twenty Thousand Dollars ($20,000) for split gifts made by husband and wife) of property contributed to the Trust during any calendar year.

The agreement further noted that any exercise of the right of withdrawal was to be submitted in writing, was “not cumulative,” and “lapse[d] in full if it [was] not exercised” within the stated time limitations. Napoleon acknowledged that he withdrew approximately $42,000 in 1999 alone and estimated that he withdrew $107,050 from the CSB Children’s Trust checking account from January 2003 to November 2007. The chancellor determined that Napoleon breached his duty of loyalty as Trustee and “took advantage of the situation and used the trusts as his own personal accounts, .. ma[king] withdrawal after withdrawal that served only him and did nothing for the other beneficiaries.” He was only authorized to withdraw $10,000 in 1999; therefore, his total withdrawal of approximately $42,000 was not authorized by the trust. The maximum amount that Napoleon could have withdrawn from the trust from 2003 to 2007 was $50,000; yet he withdrew more than double that amount. Furthermore, he had no recollection of the purpose of the withdrawals or “loans,” as he terms them. When asked by plaintiffs counsel if he had been in a “financial bind” that required him to make the cash withdrawals, he stated: “I really don’t recall.”

¶ 29. Napoleon also failed to provide an annual “statement of each receipt and disbursement” to each beneficiary, as required under the trust agreement. Napoleon admitted at trial that he only provided “annual accounts in the form of a balance sheet” when one was requested. Barfield, the accountant who reviewed the bank statements for the “six or seven bank accounts from 1999 to 2010,” had to submit several inquiries as to whom monies had been paid and what the sources of several deposits were. Barfield testified:

[T]he records were a mess, and it took us months to get the bank statements to where we could make some sense from them, and he is an ex-banker.
And when I saw the accounting, I was frankly surprised that a man with his background in accounting would have such a mess as far as records on a family trust and an estate.

The chancellor also noted in her findings that “when asked to produce records, [Napoleon] came forward with a jumbled mess of documents.”

¶ 30. “A trustee has a duty to maintain clear, complete, and accurate books and records regarding the trust property and the administration of the trust, and, at reasonable intervals on request, to provide beneficiaries with reports or accountings.” Restatement (Third) of Trusts § 83 (2007). Moreover, “[a] trustee who fails to keep proper records is liable for any loss or expense resulting from that failure,” and the “failure to maintain necessary books and records may also cause a court in reviewing a judicial accounting to resolve doubts against the trustee.” Id. at cmt. a(l). As the chancery court observed, with Napoleon’s extensive banking and financial-services expertise, he should have understood “the importance of good recordkeeping, ... [but instead,] it took a lawsuit, discovery, and a court-ordered accounting to get even the slightest grasp on what [Napoleon] had been doing to these trusts.”

¶ 31. Therefore, we find no error in the chancellor’s finding that Napoleon breached his duty of loyalty as a fiduciary. While Graham received his one-third share of the original Children’s Trust corpus, we cannot agree that he suffered no damages as a result of Napoleon’s breach of loyalty. For example, the dividends earned on his shares from 1999 to 2007 were not reinvested for Graham’s benefit; they were put into the trust’s bank account and withdrawn by Napoleon for his personal use.

¶32. In fashioning a remedy for Napoleon’s breach of loyalty, the chancery court examined Barfield’s accounting, “picked out the cash withdrawals from the trusts’ bank accounts made by [Napoleon] that were not associated with the Paragon transaction,” and arrived at a total of $230,090.03. Although the chancellor found no breach of duty related to the Paragon investment, the $40,000 Napoleon deposited into his personal account from the $200,000 CSB loan was then added to this figure, “for a total of $270,790.03,” since there was no documentation to show “what happened to that money.” The chancellor determined that “[i]n effect, [Napoleon] owes Graham and John $135,045 each [(one-half of $270,090)].” We find the damages award was within the discretion afforded the court, particularly as it is apparent the chancellor took great efforts to make sense of the convoluted figures and various accounts involved with both the Children’s Trust and the Family Trusts.

¶ 33. Accordingly, we affirm the chancellor’s findings on this issue.

II. Whether the chancery court erred in awarding damages for Napoleon’s withdrawals from the Family Trust.

¶34. Although Napoleon disputes the accountant’s findings regarding the precise amount that he withdrew from the Family Trust, this is not at issue on appeal. Rather, he contends that, as a whole, “the withdrawals from the Family Trust should not be charged against him,” as there was “undisputed evidence ... that June gave permission for each of these withdrawals.”

¶ 35. The only evidence to support Napoleon’s claim is his own testimony that he “[had] discussions with [his] mom about her business, and about things she wanted done through the trust, and she directed that in conversations that I had with her.” Although Graham was not provided an opportunity to respond to this testimony, he had testified that he and John were made executors of June’s will, because “she didn’t trust [Napoleon] anymore.” Graham also argues op appeal that his mother never worked outside the home and had relied on her husband to pay the bills when he was alive. The chancellor pointedly asked when Napoleon was granted power of attorney over his mother, and it was noted that his power of attorney was executed approximately the same time as his father’s will was probated.

¶ 36. Napoleon also admitted that his mother “was very tentative about giving her bank stock away, because she felt a very personal relationship with it,” which is why the Children’s Trust had been established—to protect her assets. Yet he pledged those same assets to obtain a loan for a business venture. Napoleon likewise donated, allegedly with June’s acquiescence, approximately $13,000 to a nonprofit jazz foundation in Memphis from the Family Trust account; however, he acknowledged that he was a “co-organizer” for the foundation. There is, again, a question as to where Napoleon’s loyalty lay—in this instance, to the Family Trust or to the foundation.

¶37. While we acknowledge the chancery court did not make any specific findings as to whether June expressly authorized Napoleon’s withdrawals from the Family Trust, we observe that “if the chancellor has made no specific findings[,] and none are required under a ‘factor test’ mandated by case law, we generally proceed on the assumption that [s]he resolved fact issues in favor of the prevailing parties.” Locklear v. Sellers, 126 So.3d 978, 981 (¶ 6) (Miss. Ct. App. 2013) (citing Ferrara v. Walters, 919 So.2d 876, 881 (¶ 8) (Miss. 2005)). The chancery court could well have disbelieved Napoleon’s testimony that his mother approved withdrawals from the Family Trust, or believed that if she did agree, Napoleon had not thoroughly advised her of the consequences of the withdrawals, such as having to sell her home in 2007. According to Graham, when the home was sold in 2007, the majority of the real-estate proceeds had to be used to pay two mortgages on the house, totaling $270,000—mortgages that were not on the house when his father died in 1998,

¶ 38. We, therefore, find no merit to the argument that the chancery court had to conclude that June approved of Napoleon’s withdrawals.

III. Whether the chancellor’s award of attorney’s fees was supported by the evidence.

¶39. Napoleon appeals the chancellor’s award of attorney’s fees, which were granted in response to Graham’s motion to amend the judgment. Although Graham maintains there is evidence to support an award of attorney’s fees, he acknowledges the attorney’s fee itemization was not properly admitted into the chancery court’s record. Therefore, we reverse and remand for a hearing on the award of attorney’s fees.

¶ 40. THE JUDGMENT OF THE CHANCERY COURT OF BOLIVAR COUNTY, SECOND JUDICIAL DISTRICT, IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANTS AND ONE-HALF TO THE APPELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR AND GREENLEE, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., NOT PARTICIPATING.

      . Although John Cassibry is listed as a co-appellant, he did not participate in the litigation below and has not filed an appellant's brief.

      . No loan documentation was recorded for these withdrawals, and there is no indication that he paid any interest or pledged any collateral or security for the "loans.”

      . The Paragon transaction will be discussed in more detail below.

      . At the time of the trust's creation, each beneficiary's share would have been 1,854 shares of stock valued at approximately $172,500.

      . The reasoning for structuring the transaction this way was because, as an organizing director and chairman of the board for Paragon, a startup bank, “[Napoleon] got a favorable deal on warrants and options.”

      . The agreement was signed by Napoleon, John, June, and one of Napoleon’s daughters.

      . At the time of the trial proceedings, the value of the stock was $2 per share.

      . As already noted, John did not participate in any of the litigation.

      . Likely referring to die amount deposited into the registry of the court ($239,299.60).

      . The chancery court arrived at this judgment amount by awarding Graham $135,045 (one-half of Napoleon’s cash withdrawals from the Family Trust and Children’s Trust), .and $8,620.86 for the deficit left on the insurance money related to the JCC Trust.

      . The $1,200 increase in Graham’s original judgment award was attributable to an additional payment made to a bank related to the JCC Trust, which the chancery court determined was paid without permission, and Napoleon "had no authority to use the insurance money to pay that debt.”

      . We note there is no actual loan documentation or agreements in the record concerning these withdrawals of funds.

      . In 2014, the Mississippi legislature enacted the Mississippi Uniform Trust Code. See Miss. Code Ann. §§ 91-8-801 to -1206 (Supp. 2014).

      . Section 91-6-609 was enacted on July 1, 2006.

      . Another account was later established at UP for the Children’s Trust. Napoleon’s estimated withdrawals from the UP account during this period were $52,443.28.

      .The chancellor, therefore, did not adopt Barfield’s accounting "wholesale,” as "it d[id] not fully comport with the [c]ourt’s findings[,]" but stated that she would not "continue to waste time and money by requiring Mr. Barfield to rework his numbers.” The court also did not count any withdrawals from June's personal accounts or any transactions between the Cassibry Brothers account and Napoleon's personal account.

      . Napoleon has requested that this Court render judgment for $9,820.86 in damages related to the JCC Trust, and only contests the chancellor’s finding that he breached a duty of loyalty. He has raised no issue regarding the chancellor’s actual calculation of damages once a breach of loyalty is found.

      . Barfield’s report stated that from May 2003 to January 2008, Napoleon withdrew $73,689; Napoleon argues that he withdrew only $55,325.

      . Napoleon also cites section 91-8-802 to support his claim, which we have already found to be inapplicable to the acts occurring prior to the statute's enactment in 2014.

      . While Graham admitted he saw a "picture” regarding the jazz foundation on his mother’s refrigerator, he stated that he received no benefit from the foundation and would not have approved of the donation.

      .Graham acknowledged Family Trust funds were used to pay the mortgage payments on a condo he purchased for June, but he lamented the sale of his parents' home, as it "had been in the family for nearly a hundred years.”


author: BARNES, J.,

text:
    Terrance BAKER a/k/a Tarrence Baker, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CA-01638-COA
    Court of Appeals of Mississippi.
    01/24/2017

      DESOTO COUNTY CIRCUIT COURT, ROBERT P. CHAMBERLIN, J.
    MICHAEL HADEN LAWYER, ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE, ATTORNEY FOR APPELLEE
    BEFORE GRIFFIS, P.J., BARNES AND CARLTON, 33.

   BARNES, J.,

FOR THE COURT:

¶ 1. Terrance Baker appeals the Circuit Court of DeSoto County’s judgment dismissing his motion for post-conviction relief (PCR). Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In 2011, Baker was indicted for one count of sale of hydrocodone and one count of sale of marijuana, as a second offender under Mississippi Code Annotated section 41-29-147 (Rev. 2013). The indictment was amended in August 2012 to charge Baker as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015). In September 2012, Baker pleaded guilty to the sale of hydrocodone as a second offender. The trial court sentenced Baker to serve fifteen years in the custody of the Mississippi Department of Corrections, followed by ten years of post-release supervision.

¶3. In September 2015, Baker timely filed a PCR motion, claiming his plea was involuntary and he was denied effective assistance of counsel. Regarding his guilty plea, Baker claimed he was not advised of possible defenses, the elements of the crime, or the consequences of the plea. Moreover, he argued he was coerced into pleading guilty and agreeing to a disproportionate sentence, thereby making his plea involuntaiy. He asserted that he was not told he would be sentenced as if a handgun were present, even though there was no evidence of a handgun. Baker argued that his counsel failed to: conduct a meaningful investigation of his case, ascertain whether he was competent to enter a plea or assist in his own defense, and properly advise him of his rights.

¶ 4. The trial court found Baker’s arguments without merit and dismissed his PCR motion in a five-page order. The court found no need for an evidentiary hearing because Baker did not provide any affidavits or other evidence in support of his allegations. Baker timely appealed.

STANDARD OF REVIEW

¶ 5. When reviewing the trial court’s dismissal of a PCR motion, this Court applies the clearly-erroneous standard of review. Issues of law are reviewed de novo. Jones v. State, 174 So.3d 902, 905 (¶ 8) (Miss. Ct. App. 2015).

ANALYSIS

I. Guilty Plea

¶ 6. Baker argues that his plea was neither knowing nor voluntary. He contends he was pi’essured by his attorney to accept the fifteen-year sentence, claiming he was initially offered a ten-year sentence but hesitated; then he was told by his counsel the new offer had increased to fifteen years, and would increase to twenty years if he did not immediately accept it. Additionally, Baker argues his sentence was improperly based on allegations a handgun was present during the offense.

¶ 7. For a guilty plea to be valid, it must be entered into “voluntarily, knowingly, and intelligently”; that is, “the trial court must advise the defendant of his rights, the nature of the charge against him, as well as the consequences of the plea.” Williams v. State, 31 So.3d 69, 74 (¶ 13) (Miss. Ct. App. 2010) (citations omitted). The burden of proving a guilty plea is invalid rests with the defendant and must be proven by a preponderance of the evidence. Id. On-the-record statements of the elements of the charged crime sufficiently inform a defendant of the elements of the crime. Id. at 79 (¶ 28). Moreover, statements made in open court under oath “carry a strong presumption of veracity.” Thomas v. State, 159 So.3d 1212, 1216 (¶ 12) (Miss. Ct. App. 2015) (citations omitted).

¶ 8. Baker was. thoroughly informed of the nature and consequences of his guilty plea. At the plea hearing, the State explained the evidence it had to prove the elements of sale of hydrocodone (which was to a confidential informant on April 22, 2011), as well as the sentence enhancement as a second offender due to Baker’s previous Tennessee conviction for possession and intent to sell a controlled substance in October 1990. There was no mention of a handgun sentence enhancement during the plea hearing or in his sentencing order. Further, the trial-court order stated only “the capias prepared by the clerk mentioned a handgun; Baker was actually indicted, entered a plea to the charge, and was sentenced as a second offender” under section 41-29-147. The trial judge explained the plea and asked Baker several times if his plea was voluntary. Baker denied being promised anything or coerced into pleading guilty. He was explained his rights, as well as the maximum and minimum sentences for the charge. Finally, while the prosecutor may have stated he would increase Baker’s sentence during plea negotiations if Baker “hesitated,” it cannot be considered coercion attributable to counsel. Thus, the trial court did not err in finding Baker’s guilty plea was voluntarily and knowingly entered.

II.. Ineffective Assistance of Counsel

¶ 9. Specifically, Baker argues that his counsel before the trial court failed to adequately investigate his case, and, although Baker was incarcerated for months, never had any substantive discussions with him about his case. Baker also claims his counsel never discussed with him the strength of the State’s case against him or the defenses available to him, but coerced him into pleading guilty.

¶ 10. To prove ineffective assistance of counsel, the defendant must show: (1) counsel’s performance was deficient, and (2) this deficiency prejudiced , the defense. Williams v. State, 110 So.3d 840, 844 (¶ 21) (Miss. Ct. App. 2013) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “[Tjhere is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance.” Hooghe v. State, 138 So.3d 240, 247 (¶ 31) (Miss. Ct. App. 2014) (citation omitted). Further, a voluntary guilty plea waives claims of ineffective assistance of counsel except regarding the voluntariness of the plea. Rigdon v. State, 126 So.3d 931, 936 (¶ 16) (Miss. Ct. App. 2013) (citations omitted). In the context of a guilty plea, the defendant must show that, but for his counsel’s performance, he would not have entered a guilty plea, and the outcome would have been different. Hooghe, 138 So.3d at 248 (¶ 32). Finally, “the trial court may dismiss a motion for post-conviction relief if the petitioner fails to submit affidavits in support of his allegations” of ineffective assistance; the petitioner’s bare assertions are insufficient. Mayhan v. State, 26 So.3d 1072, 1076 (¶ 10) (Miss. Ct. App. 2009) (citation omitted).

¶ 11. As the trial court noted, Baker provides no affidavits or other evidence to support any of his numerous allegations against his trial-court counsel. At the plea hearing, Baker affirmed for the trial judge, under oath, that he was satisfied with the services of his lawyer, who had been available to him, and he had no complaints whatsoever about his representation. There was also no indication during the plea hearing that Baker was incompetent to enter a plea or assist his lawyer in his own defense. Accordingly, under StHck-land, Baker fails to show his counsel was deficient, and but for any errors, the result of the proceeding would have been different. Therefore, this issue is without merit.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., NOT PARTICIPATING.

      . A copy of these indictments was not a part of the record on appeal; this information is taken from the trial-court order.

      . The trial court stated the capias mentioned a handgun sentence enhancement; however, Baker was indicted, pleaded, and was sentenced as a second offender under section 41-29-147, without a handgun enhancement.

      . The trial court noted Baker’s maximum sentence would have been sixty-years, served day-for-day, if he were convicted as a habitual offender. The record includes Baker’s numerous other indictments and felony convictions in Tennessee.
      At the end of the plea hearing, when asked if he had any further questions, Baker did ask about the "last part”; presumably his post-release-supervision obligations. However, the judge explained his entire sentence again.


author: LEE, C.J.,

text:
    Angela Ellis DAVIS, Appellant v. Gary Sidney DAVIS, Appellee
    NO. 2014-CA-01738-COA
    Court of Appeals of Mississippi.
    01/24/2017

      COVINGTON COUNTY CHANCERY COURT, WILLIAM R. BARNETT, J.
    AUDRY REGNAL BLACKLEDGE, Attorney for appellant • '
    W. TERRELL STUBBS, ATTORNEY FOR APPELLEE

      BEFORE LEE, C.J., BARNES AND FAIR, JJ.
   LEE, C.J.,

FOR THE COURT:

FACTS AND PROCEDURAL HISTORY

¶ 1. Prior to their divorce in 2004, Gary Davis and Angela Davis had two children—Kristin Davis and Jade “Nicole” Davis. Gary and Angela’s divorce decree incorporated a child-custody, support, and property-settlement agreement, which provided for “joint legal and joint physical custody and visitation for the “noncustodial parent.” Angela was the custodial parent, and Gary was the noncustodial parent with visitation. The agreement also provided that Gary would pay $500 per month in child support.

¶ 2. In October 2013, Angela filed a petition in the Covington County Chancery Court to terminate Gary’s parental rights or, in the alternative, modify Gary’s custody/visitation rights and increase the amount of child support. Angela alleged that Gary had not exercised visitation with Kristin after an altercation with Gary’s current wife, Teresa Davis, in September 2011, or with Nicole since December 2012. Angela also claimed that Gary’s income had increased since the divorce. Gary filed an answer and a counterclaim for contempt and for modification, seeking sole custody of the children.

¶ 3. In February 2014, the chancellor appointed a guardian ad litem (GAL) to make recommendations as to the termination of Gary’s parental rights. After a hearing on the matter, the chancellor denied Angela’s requests to (1) terminate Gary’s parental rights, (2) modify custody/visitation, and (3) increase the amount of child support. But the chancellor did order Gary to pay Kristin’s and Nicole’s private-school tuition as long as both girls continued to visit Gary. Finally, the chancellor ordered that Gary could execute a power of attorney allowing Teresa to have access to the children’s school records while Gary was working out of town.

¶ 4. Angela filed a motion to alter or amend the judgment, for reconsideration, and for a new trial, which was denied. Angela appeals, asserting the chancellor erred by failing to: (1) modify Gary’s custody/visitation; (2) increase child-support payments; and (3) follow the GAL’s recommendation. Angela also argues the chancellor should not have allowed Teresa access to the children’s school records.

FACTS

¶ 5. Since the 2004 divorce, Gary began working out of state for months at a time, which directly impacted his visitation with the children. Gary stated that if he was out of town, the children would still go for visitation with Teresa and Marissa, Gary and Teresa’s daughter. Immediately prior to trial, Gary had been working out of state for four months straight. The record indicates that Gary had timely paid his child support and had bought the children school clothes and school supplies.

¶ 6. Testimony during the hearing indicated that Kristin and Gary got into an argument during the children’s visitation in September 2011, and Teresa stepped in to restrain Kristin. Gary took Kristin to stay with Angela’s father, but Nicole stayed with Gary and Teresa for the remainder of her visitation. According to Angela, Kristin did not want to visit Gary after this episode.

¶7. Angela stated that Nicole did not want to visit Gary after hearing Gary yell at Angela on one occasion. But Angela did admit that Nicole wants a relationship with Gary. Both children take medication for ADHD, and both have varying degrees of dyslexia. While enrolled in the local public school, Kristin had failing grades and repeatedly got into trouble. Around August 2012, Kristin started cutting herself, and she began to see a therapist. Angela eventually moved both children to Heidelberg Academy. Angela admitted that she did not inform Gary when she moved the children to the new school. By all accounts, both children had been performing well at their new school.

¶ 8. Angela admitted that she stopped encouraging the children to visit or contact Gary. Gary testified that he tried to reach Kristin by texting or calling, but Kristin did not respond.

¶ 9. The GAL testified that neither Angela nor Gary was completely at fault for their current situation with the children. The GAL opined that Kristin had a bad attitude generally, and not solely due to her relationship with Gary. The GAL determined Gary’s parental rights should not be terminated. Although not required to do so, the GAL recommended that Angela have primary custody of the children and Gary have visitation “because that is how they have been operating since the date of divorce.”

¶ 10. Gary’s Rule 8.05 financial-disclosure statement indicated his net monthly pay was $7,423. And his total living expenses, which included insurance payments of $928 per month, were $6,566. Gary testified that he thought his net monthly pay at the time of the divorce in 2004 was approximately $4,000.

STANDARD OF REVIEW

¶ 11. When supported by substantial evidence, a chancellor’s findings will not be disturbed on appeal unless the chancellor abused his discretion, was manifestly wrong, was clearly erroneous, or applied an erroneous legal standard. Strait v. Lorenz, 155 So.3d 197, 203 (¶ 19) (Miss. Ct. App. 2015). However, questions of law are reviewed de novo. Id.

DISCUSSION

I. Modification of Custody/Visitation

¶ 12. In her first issue, Angela claims the chancery court should have modified custody/visitation. According to the child-custody, support, and property-settlement agreement, Gary and Angela have “joint legal and joint physical custody.” But, in actuality, Angela is the custodial parent, and Gary is the noncustodial parent with visitation. Angela is not appealing the issue of termination of parental rights. It seems Angela would like to change the child-custody, support, and property-settlement agreement to reflect what is already in practice—physical custody to Angela and visitation to Gary. We reiterate that Gary also filed a counterclaim for modification, seeking sole custody of the children.

¶ 13. Angela argues the physical and verbal abuse, the children’s mental issues, the children’s feelings toward Gary, and Gary’s limited contact with the children constituted a material change in circumstances that adversely affected the children’s welfare. Gary argues the incident between Teresa and Kristin was an isolated incident. And he denies yelling at Angela in front of Nicole.

¶ 14. “To modify child custody, ‘the non[ jcustodial party must prove: (1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child’s welfare; and (3) that the child’s best interest mandates a change of custody.’ ” Strait, 155 So.3d at 203 (¶ 20) (quoting A.M.L. v. J.W.L., 98 So.3d 1001, 1013 (¶ 24) (Miss. 2012)). “The chancellor must consider the totality of the circumstances.” Id.

¶ 15. The chancellor found the following:

There has not been a material change in circumstances in the custodial home of either parent adverse to the best interest of the children since the divorce decree, and therefore no Albright analysis was conducted by the court. The modification requests by both parties concerning custody and visitation are denied, and the custody and visitation set forth in the original divorce decree shall remain in full force and effect. It is understood that Gary’s work schedule prevents a fixed schedule for visitation. However, Gary shall provide [seventy-two] hours notice to Angela of his intent to visit with the children, and his visitation shall take precedence over any other activities of the children.

Upon review of the record, we cannot find the chancellor abused his discretion in denying both parties’ petitions for modification. The evidence presented failed to show a material change in circumstances had occurred. This issue is without merit.

II. Modification of Child Support

¶ 16. In her second issue, Angela claims the chancery court should have increased the amount of child support. Angela argues that the children’s increased medical expenses, their need to attend a private school, and Gary’s increased income constituted a substantial or material change in circumstances.

¶ 17. An award of child support is governed by Mississippi Code Annotated section 43-19-101 (Rev. 2015). The guidelines establish that there is a rebuttable presumption that an award of child support should be twenty percent of the noncustodial parent’s adjusted gross income where two children are due support. “A chancellor may modify child support if there has been a substantial or material change in the circumstances of one or more of the interested parties [-] the father, the mother, and the child or children [-] arising subsequent to the entry of the decree to be modified.” Curry v. Frazier, 119 So.3d 362, 366 (¶ 15) (Miss. Ct. App. 2013).

18. Although the chancellor did not grant an upward 'modification of Gary’s monthly child-support payments, the chancellor did order Gary to pay the children’s private-school tuition. The chancellor specifically stated, “[T]he children do have special needs for unusual educational expenses which will require them to remain enrolled in Heidelberg Academy such that it would be . unjust or inappropriate not to deviate from the current $500 and require Gary to pay the children’s tuition.” Angela testified that tuition for both children was approximately $900 per month. As a result, Gary would be paying approximately $1,400 per month in child support. We cannot find the chancellor abused his discretion in this instance. This issue is without merit.

III. GAL Recommendations

¶ 19. In her third issue, Angela claims the chancery court should have followed the GAL’s recommendation as to the modification-of-custody/visitation issue, or it should have provided written findings as to why the GAL’s recommendations were not followed.

¶ 20. “Our supreme court does not require a chancellor to follow the findings of a GAL.” In re N.B., 135 So.3d 220, 228 (¶ 35) (Miss. Ct. App. 2014) (citing S.N.C. v. J.R.D. Jr., 755 So.2d 1077, 1082 (¶ 17) (Miss. 2000)). “However, ‘when a chancellor’s ruling is contrary to the recommendation of a statutorily required GAL, the reasons for not adopting the GAL’s recommendation shall be stated by the court in the findings of fact and conclusions of law.’” Id. (quoting S.N.C., 755 So.2d at 1082 (¶ 18)).

¶ 21. Here, the GAL was appointed solely to investigate the termination of parental rights. The GAL recommended that Gary’s parental rights not be terminated, and the chancery court followed the GAL’s recommendation. Since the GAL was not appointed to investigate the modification-of-custody/visitation issue, we cannot find the chancellor erred in failing to state his reasons for not adopting the GAL’s recommendations regarding custody and visitation.

IV. Power of Attorney

¶ 22. Finally, Angela claims the chancery court should not have given Gary’s wife, Teresa, access to Kristin’s and Nicole’s records. Angela argues neither party requested this. First, the chancellor did not automatically give Teresa access to the children’s school records. The chancellor gave Gary the opportunity to allow Teresa access by way of a power of attorney. Second, the chancellor noted that a power of attorney would allow Teresa to get important information from the school regarding the children if Gary was out of town for a long period of time. We find no error by the chancellor in so ruling. This issue is without merit.

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

IRVING AND GRIFFIS, P. JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., NOT PARTICIPATING.

      . Kristin was born in 1997, and Nicole was born in 2001.

      . UCCR 8.05.

      . Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983).