author: LEE, C.J., FOR THE COURT:

text:
    Jack PATRICKSON a/k/a Jack B. Patrickson a/k/a Jack Benjamine Partrickson a/k/a Patrickson Benjamine Jack a/k/a Patrickson Jack a/k/a Patrickson B. Jack, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01602-COA
    Court of Appeals of Mississippi.
    January 9, 2018 Rehearing Denied May 8, 2018
    JACK PATRICKSON (PRO SE), ATTORNEY FOR APPELLANT.
    OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON, ATTORNEY FOR APPELLEE.
    BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. In this appeal, we must determine whether the trial court properly denied Jack Patrickson's request for an out-of-time appeal via a motion for postconviction relief (PCR) as time-barred. Finding no error, we affirm.

PROCEDURAL HISTORY

¶ 2. On January 18, 2012, a jury in the Rankin County Circuit Court found Patrickson guilty of sexual battery. On January 26, 2012, the trial court sentenced Patrickson to thirty years, with ten years suspended and twenty years to serve in the custody of the Mississippi Department of Corrections, and five years of supervised probation. Patrickson was also required to register as a sex offender upon his release from incarceration.

¶ 3. Patrickson did not file a direct appeal. In July 2014, Patrickson filed a motion requesting the record and trial transcript from his case, but the trial court denied the motion. Over the next two years, Patrickson filed three more motions-one regarding his parole eligibility, one requesting the appointment of appellate counsel, and the other for reconsideration of his sentence-but all were denied. On September 29, 2016, Patrickson filed a motion for an out-of-time appeal. He also requested a copy of the trial transcript and appointment of appellate counsel. Treating this as a PCR motion, the trial court denied it for two reasons-the three-year time-bar under Mississippi Code Annotated section 99-39-5(2) (Rev. 2015) and Patrickson's lack of sufficient explanation for the delay in filing a direct appeal.

¶ 4. Patrickson now appeals, asserting the following issues: (1) he is entitled to an out-of-time appeal; (2) his trial counsel was ineffective; and (3) he is entitled to appellate counsel due to his indigent status.

STANDARD OF REVIEW

¶ 5. When reviewing a trial court's denial or dismissal of a PCR motion, we will only disturb the trial court's decision if it is clearly erroneous; however, we review the trial court's legal conclusions under a de novo standard of review. Hughes v. State , 106 So.3d 836, 838 (¶ 4) (Miss. Ct. App. 2012).

DISCUSSION

I. Out-of-Time Appeal

¶ 6. Patrickson's PCR motion is procedurally barred by the three-year statute of limitations in section 99-39-5(2). Since Patrickson failed to file a direct appeal, he had to file his PCR motion "within three (3) years after the time for taking an appeal from the judgment of conviction or sentence ha[d] expired."Id. Patrickson filed his PCR motion over three years after he was convicted and sentenced. And claims relating to an out-of-time appeal are "subject to the three-year statute of limitations." Balle v. State , 205 So.3d 1087, 1088 (¶ 2) (Miss. Ct. App. 2016). Patrickson has not pointed to any applicable exception to the three-year limitation in section 99-39-5(2). To circumvent these procedural bars, Patrickson must assert a cognizable claim involving the violation of a fundamental constitutional right. See Rowland v. State , 42 So.3d 503, 506 (¶ 9) (Miss. 2010). He has not done so; thus, this issue is without merit.

II. Ineffective Assistance of Counsel

¶ 7. Ineffective-assistance claims are also subject to the procedural bars of the Uniform Postconviction Collateral Relief Act (UPCCRA), unless the "attorney's performance is so deficient and prejudicial to a defendant, that it is deemed to be violative of the defendant's fundamental constitutional rights." Thomas v. State , 933 So.2d 995, 997 (¶ 4) (Miss. Ct. App. 2006). Here, Patrickson argues his trial counsel was ineffective for failing to: file a notice of appeal; object to improper evidence; conduct a pretrial investigation; submit jury instructions; and file posttrial motions. However, "[t]here must at least appear to be some basis for the truth of the claim before the procedural bar will be waived." White v. State , 59 So.3d 633, 636 (¶ 11) (Miss. Ct. App. 2011). Also, "a defendant must plead claims of ineffective assistance of counsel with specificity, and the claim must be supported by affidavits other than his own." McBride v. State , 108 So.3d 977, 980 (¶ 11) (Miss. Ct. App. 2012). Patrickson's claims are mere assertions and insufficient to overcome the procedural bar. Additionally, Patrickson has failed to include any supporting affidavits. This issue is without merit.

III. Appointment of Appellate Counsel

¶ 8. Patrickson argues that the trial court erred in denying his request for appointed appellate counsel. However, "a criminal defendant has neither a state nor a federal constitutional right to appointed counsel in post-conviction proceedings." Watts v. State , 981 So.2d 1034, 1037 (¶ 6) (Miss. Ct. App. 2008). We cannot find the trial court abused its discretion in denying Patrickson's request. This issue is without merit.

¶ 9. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.


source: Caselaw Access Project

author: FAIR, J., FOR THE COURT:

license: Public Domain

text:
    Eddie Earl DAVIS a/k/a Brown Davis, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00181-COA
    Court of Appeals of Mississippi.
    January 23, 2018 Rehearing Denied May 15, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART
    BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. Eddie Davis was convicted of possession of methamphetamine after he was caught with it clutched in his hand during a traffic stop. At trial, Davis unsuccessfully contested the legality of the traffic stop before essentially admitting to the offense while testifying in his own defense. On appeal, Davis is represented by the Office of the State Public Defender, and his appointed appellate counsel has filed a Lindsey brief stating that she cannot find any arguable issues to support an appeal. See Lindsey v. State , 939 So.2d 743, 748 (¶ 18) (Miss. 2006).

¶ 2. In Lindsey , the Mississippi Supreme Court set out the procedure to be followed when a defendant's attorney does not find any arguable issues to support an appeal. Id. Appellate counsel must file a brief showing that counsel has thoroughly reviewed the record and has found nothing to support an appeal. Counsel must then send the defendant a copy of the brief, informing the client that counsel found no arguable issue for an appeal, and counsel must advise the client of his right to file a pro se brief. Id. If the defendant raises any arguable issue in his pro se brief, or if the appellate court finds any arguable issues upon its independent review of the record, the appellate court must, if circumstances warrant, require counsel to file supplemental briefing on the issue.

¶ 3. Davis's attorney filed a brief indicating that she diligently searched the procedural and factual history of this action and scoured the record, searching for any arguable issues that could be presented in good faith, but she found none. Davis's attorney asserts that she examined: (1) the reason for Davis's arrest and the circumstances surrounding the arrest; (2) any possible violations of Davis's right to counsel; (3) the entire trial transcript and contents of the record; (4) all rulings of the trial court; (5) possible procedural misconduct; (6) all jury instructions; (7) all exhibits, whether admitted into evidence or not; (8) possible misapplication of the law in sentencing; (9) the indictment and all the pleadings in the record; (10) any possible ineffective-assistance-of-counsel issues; and (11) whether the verdict was supported by the overwhelming weight of the evidence. Lindsey , 939 So.2d at 748 (¶ 18) (citations omitted).

¶ 4. Davis's attorney complied with Lindsey 's requirements. She examined the record and found no arguable appellate issues. The attorney sent a copy of the Lindsey brief to Davis, stating that, while she found no arguable issues, Davis had the right to file a pro se supplemental brief. Davis did not submit a supplemental brief-instead, he filed a letter addressed to his attorney, stating that he did not know how to write a brief. The letter contains what might be called a draft of a brief, but it is little more than an unsworn narrative explaining Davis's side of the story. The account is substantially consistent with his testimony at trial, though it is more detailed. Essentially, Davis contends that the officer who pulled him over had a grudge against him and lied about the circumstances of the stop.

¶ 5. This letter contains no structured legal argument and no citations to authority. Mississippi Rule of Appellate Procedure 28(a)(7) requires that assignments of error must be supported by "the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on." Arguments that do not comply with this rule are procedurally barred. Cowart v. State , 178 So.3d 651, 666 (¶ 39) (Miss. 2015). And "[w]hile pro se litigants are afforded some leniency, they must be held to substantially the same standards of litigation conduct as members of the bar." Sumrell v. State , 972 So.2d 572, 574 (¶ 6) (Miss. 2008) (citation omitted). Davis's brief fails to adequately raise any issues for consideration on appeal.

¶ 6. Moreover, the record reflects that a suppression hearing was held, during trial but out of the presence of the jury, in which the officer testified as to the circumstances of the stop. The officer did not deny knowing Davis, though he testified that he only recognized Davis after the stop had been initiated. He was also unequivocal in his testimony that he had probable cause for the stop-Davis's license plate lacked working illumination as required by Mississippi Code Annotated section 63-7-13(3) (Rev. 2013). After Davis was pulled over, he was found to be driving with a suspended license and without proof of insurance. When the officer asked Davis to step out of the vehicle, he observed that Davis was attempting to conceal a plastic bag in his hand. The officer took the bag and observed a crystalline substance inside. The substance was subsequently tested by a laboratory and found to be crystal methamphetamine.

¶ 7. Davis testified in his own defense, but he did not testify at the suppression hearing. So, at the time of its decision, the circuit court had before it only the officer's account. The officer's account was internally consistent and not facially improbable or unbelievable. It described a legal traffic stop, a legal search, and a legal seizure of the drugs. We cannot find any arguable issue in the circuit court's denial of the suppression motion.

¶ 8. We have independently reviewed the remainder of the record, and we can find no arguable issues that require supplemental briefing. As a result, we find that Davis's conviction and sentence of six years, as a habitual offender, should be affirmed.

¶ 9. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.


author: WILSON, J., FOR THE COURT:

text:
    Majeedah SHARRIEFF, Lynnese Butler, the heirs and Estate of Naomi Brown, Nutrosalyn Butler and Miqual Brown, Appellants v. DBA AUTOMOTIVE TWO, LLC d/b/a Legacy C-D-J, Appellee
    NO. 2016-CA-01676-COA
    Court of Appeals of Mississippi.
    April 3, 2018
    ATTORNEYS FOR APPELLANTS: JOHN B. GSANGER, MARY BARNETTE COTTON, JOHN DAVIDSON
    ATTORNEY FOR APPELLEE: MICHAEL WAYNE BAXTER, RIDGELAND
    BEFORE IRVING, P.J., BARNES AND WILSON, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. Majeedah Sharrieff and four passengers were traveling north on Interstate 55 (I-55) near McDowell Road in Jackson when the left rear tire on Sharrieff's 2003 Isuzu Ascender experienced a complete tread separation. As a result of the separation, Sharrieff lost control of the vehicle, and the vehicle overturned and crashed. Sharrieff and her passengers subsequently filed suit in Hinds County Circuit Court against Michelin North America/B.F. Goodrich ("Michelin"), which manufactured the tire, and DBA Automotive Two LLC D/B/A Legacy C-D-J ("Legacy"), which sold the Isuzu to Sharrieff in 2007 and placed two new tires on the vehicle near the time of sale. The plaintiffs alleged that the Michelin tire was defectively designed and manufactured. They also alleged that Legacy negligently mounted the two new tires on the front of the vehicle and that industry safety standards required Legacy to mount the new tires on the rear of the vehicle.

¶ 2. Legacy subsequently moved for summary judgment. The circuit court granted the motion after concluding that there was no evidence that Legacy negligently breached any duty to the plaintiffs or that any alleged breach proximately caused the plaintiffs' injuries. The plaintiffs later settled their claims against Michelin and then appealed from the judgment entered in favor of Legacy. For the reasons discussed below, we agree with the circuit court that the plaintiffs failed to create a genuine issue of material fact as to whether Legacy's alleged negligence proximately caused their injuries. Therefore, we affirm the circuit court's order granting summary judgment on that ground.

FACTS AND PROCEDURAL HISTORY

¶ 3. On March 16, 2007, Sharrieff bought a used 2003 Isuzu Ascender from Legacy, a used car dealership in Brookhaven. Near the time of the sale, Legacy replaced two of the tires on the Isuzu with new tires. Legacy mounted the two new tires on the front of the vehicle and did not replace the tires on the rear. Sharrieff did not have any issues with the car or the tires prior to the crash at issue in this case, which occurred more than two years later. During that time, Sharrieff put over 13,000 miles on the Isuzu without rotating or changing any of the tires.

¶ 4. On May 22, 2009, Sharrieff and the other plaintiffs were traveling on I-55 North in Jackson near McDowell Road when the Isuzu's rear left tire experienced a complete tread separation. The tread separation caused the Isuzu to pull to the left, and Sharrieff responded by steering right. However, the tread separation caused the vehicle to "oversteer," meaning that it was more sensitive to steer inputs and harder for the driver to control. As a result, Sharrieff lost control of the vehicle, and the vehicle overturned before coming to rest off the right side of the interstate.

¶ 5. The plaintiffs subsequently filed suit against Michelin and Legacy in circuit court. As to Legacy, they alleged that the new Michelin tires should have been placed on the rear of the vehicle rather than on the front. The plaintiffs hired two accident reconstruction experts and one tire expert. When asked to identify the proximate cause of the crash, all three experts identified the tread separation and blamed Michelin.

¶ 6. Legacy filed for summary judgment, arguing (1) that no law or regulation required a car dealer to place better tires on a vehicle's rear wheels and (2) that there was no evidence to show that its placement of the new tires on the front of the vehicle proximately caused the plaintiffs' injuries. In response, the plaintiffs argued that all of the experts, including Legacy's own expert, agreed that newer, better tires should be placed on the rear of a vehicle. The plaintiffs also argued that Legacy's negligent placement of the new tires contributed to the oversteer condition, which caused the crash and their injuries.

¶ 7. The circuit court concluded that the plaintiffs failed to create a genuine issue of material fact as to either negligence or proximate causation. Therefore, the court granted summary judgment in favor of Legacy. After the plaintiffs settled their claims against Michelin, they filed a timely notice of appeal.

ANALYSIS

¶ 8. We review an order granting summary judgment de novo. Miss. Dep't of Revenue v. Hotel & Rest. Supply , 192 So.3d 942, 945 (¶ 5) (Miss. 2016). A party is entitled to summary judgment if the record shows both that there is no genuine issue of material fact and that the party is entitled to a judgment as a matter of law. M.R.C.P. 56(c). We review the summary judgment record in the light most favorable to the nonmoving party. Thomas v. Chevron U.S.A. Inc. , 212 So.3d 58, 60 (¶ 7) (Miss. 2017). However, the nonmoving party "may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial." M.R.C.P. 56(e).

¶ 9. To prevail on a claim for negligence, a plaintiff "must show a) the duty owed him by the [defendant]; b) a breach of that duty; c) damages; and d) a causal connection between the breach and the damages, such that the breach is the proximate cause of his injuries." Crain v. Cleveland Lodge 1532, Order of Moose Inc. , 641 So.2d 1186, 1189 (Miss. 1994). "To withstand summary judgment, the party opposing the motion must present sufficient proof to establish each element of each claim." Morton v. City of Shelby , 984 So.2d 323, 330 (¶ 17) (Miss. Ct. App. 2007).

¶ 10. The circuit court ruled, as a matter of law, that Legacy had no duty to the plaintiffs with respect to tire placement. The circuit court reasoned that the plaintiffs presented evidence only of a "general recommendation in the tire industry," not a legal duty; and because there was no duty, there could be no breach. The circuit court also ruled that there was no genuine issue of material fact and that the proximate cause of the accident was the tire tread separation, not tire placement. We affirm on the issue of proximate causation.

¶ 11. "In any tort case, identifying and proving the source of the harm that proximately caused a plaintiff's injuries is essential." Johnson & Johnson Inc. v. Fortenberry , 234 So.3d 381, 403 (¶ 78) (Miss. 2017). "Proximate cause of an injury is that cause which in natural and continuous sequence unbroken by any efficient intervening cause produces the injury and without which the result would not have occurred." Delahoussaye v. Mary Mahoney's Inc. , 783 So.2d 666, 671 (¶ 13) (Miss. 2001). "In order for an act of negligence to proximately cause the damage, the fact finder must find that the negligence was both the cause in fact and legal cause of the damage." Glover ex rel. Glover v. Jackson State Univ. , 968 So.2d 1267, 1277 (¶ 31) (Miss. 2007).

¶ 12. When a plaintiff's injuries are brought about by the actions of multiple tortfeasors, a defendant's negligence is considered the cause in fact if it "was a substantial [contributing] factor in bringing about the harm." Glenn v. Peoples , 185 So.3d 981, 986 (¶ 19) (Miss. 2015) (quoting Glover , 968 So.2d at 1277 n.11 ). "The plaintiffs bear the burden of proof on the issue of causation and must 'introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough.' " Rowan v. Kia Motors Am. Inc. , 16 So.3d 62, 66 (¶ 12) (Miss. Ct. App. 2009) (quoting Herrington v. Leaf River Forest Prods. Inc. , 733 So.2d 774, 777 (¶ 10) (Miss. 1999) ). "A defendant's negligence which is found to be the cause in fact of a plaintiff's damage will also be the legal cause of that damage, provided the damage is the type, or within the classification, of damage the negligent actor should reasonably expect (or foresee) to result from the negligent act." Glover , 968 So.2d at 1277 (¶ 33).

¶ 13. In the present case, the tire that failed was one of the older tires mounted on the rear of the Isuzu. There is no allegation or evidence that the tire tread separated because it was on the rear of the car rather than on the front. Indeed, there is no allegation or evidence that Legacy is in any way to blame or at fault for the tread separation. Rather, the plaintiffs' allegation is that tire placement caused or contributed to the "oversteer" event that resulted from the tread separation.

¶ 14. Yet, as noted above, none of the plaintiffs' experts identified tire placement as a proximate cause of the crash. They all blamed the tread separation. Moreover, the testimony of Stephen Arndt, the plaintiffs' primary accident reconstruction expert, directly contradicts plaintiffs' claim against Legacy. Arndt gave the following testimony about what would have occurred if the newer tires had been mounted on the rear of the vehicle, rather than the front, and the tread separation had occurred on the front left tire:

If you have a ... tread separation on the left front [tire], the first part that happens is the vehicle pulls to the left, not unlike what happens in the rear. So both those two things are similar except for, if you have a front tire tread separation, it probably pulls more to the left than if it's on the rear and that because its on a steer axle, and you'll get a slight steer effect because of the drag at that left front position. So the effect is that it will pull more to the left if it occurs at the left front than it does at the left rear. So that's the first thing that happens.
Now, the next thing that happens is dramatically different than the rear, and that is, instead of becoming very sensitive to steer inputs, the vehicle becomes very insensitive to steer inputs. So if the driver puts in what they think is an appropriate steer response to a left front separation, instead of it immediately going to the ... right and spinning out, the vehicle continues to the left. It's very unresponsive. You have to put in a much greater steer than anticipated.
And so you have a very different kind of event. You have an event of some kind, but it's different. Instead of spinning out to the right, the vehicle goes left, it's unresponsive, chances are it hits the [concrete] Jersey barrier, and we don't know what happens. It's a different event.

(Paragraph breaks omitted; emphasis added).

¶ 15. Thus, to summarize, Arndt testified that a tread separation on the front left tire likely would have caused the vehicle to (1) "pull more to the left," (2) "become[ ] very insensitive to steer inputs," (3) "continue[ ] to the left," and (4) hit the concrete barrier in the middle of I-55. To put this testimony in context, the plaintiffs were traveling on I-55 North in Jackson in heavy traffic, Sharrieff was in the left lane because she had just passed another car, and she was driving between sixty and seventy miles per hour. The plaintiffs' lane was separated from oncoming traffic on I-55 South by only a concrete barrier. In this context, testimony that a different tire placement would have resulted in an "event of some kind" but a "different kind of event" is unhelpful, and it is insufficient to create a genuine issue of material fact.

¶ 16. The plaintiffs offered no evidence as to what would have followed if the Isuzu had collided with the concrete barrier at a speed of sixty to seventy miles per hour. Indeed, Arndt admitted that "we don't know what [would have] happen[ed]" in that scenario. Nor is there any evidence that the crash or the plaintiffs' injuries would have been any less serious in that scenario. In fact, Arndt's expert report recognized that a collision with "the concrete Jersey barrier separating north and southbound travel lanes" would have "pos[ed] a threat to [Sharrieff], her passengers, and other roadway users."

¶ 17. Testimony that the crash would have been "different" in some way-but "we don't know" how-is insufficient to create a genuine issue of material fact. The circuit court correctly recognized that the plaintiffs failed to produce "evidence which affords a reasonable basis for the conclusion that it is more likely than not that [Legacy's] conduct ... was a cause in fact of the result. A mere possibility of such causation is not enough." Rowan , 16 So.3d at 66 (¶ 12) (quoting Herrington , 733 So.2d at 777 (¶ 10) ). Therefore, the circuit court properly granted summary judgment for Legacy on the issue of causation.

¶ 18. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      The plaintiffs also alleged that Legacy negligently failed to certify that the vehicle was safe before selling it and that Legacy had a duty to replace all four tires on the vehicle, not just two. The plaintiffs eventually abandoned those claims.

      Indeed, the record on appeal does not disclose what injuries the plaintiffs experienced or how they were injured during the crash.

      Because we affirm on the ground that the plaintiffs failed to present evidence that tire placement was the cause in fact of their injuries, we need not address the issues of legal causation (foreseeability), duty, or breach (negligence).


author: CARLTON, J., FOR THE COURT:

text:
    Keith HIGGINBOTHAM, Appellant v. STATE of Mississippi, Appellee
    Keith Higginbotham, Appellant v. State of Mississippi, Appellee
    NO. 2016-KM-01753-COA CONSOLIDATED WITH NO. 2016-KM-01755-COA
    Court of Appeals of Mississippi.
    April 3, 2018
    ATTORNEY FOR APPELLANT: KEITH HIGGINBOTHAM (PRO SE)
    ATTORNEY FOR APPELLEE: TAYLOR TUCKER
    BEFORE LEE, C.J., CARLTON AND GREENLEE, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. Keith Higginbotham was convicted of disorderly conduct and public profanity in the Louisville Municipal Court and sentenced to pay a fine of $246.25 for each charge. Higginbotham appealed his conviction to the Winston County Circuit Court. After a bench trial de novo, the circuit court entered an order finding Higginbotham guilty of disorderly conduct and public profanity. The circuit court sentenced Higginbotham to pay a fine of $246.25 for each charge. Higginbotham now appeals.

¶ 2. Finding that the circuit court failed to enter an order disposing of Higginbotham's motion for a new trial, we lack jurisdiction to address Higginbotham's appeal. We therefore dismiss.

FACTS

¶ 3. Officer Vernon Eichelberger of the Louisville Police Department testified that on July 3, 2016, Higginbotham approached him in the Walmart parking lot and began shouting racial slurs and using profane language. Officer Eichelberger arrested Higginbotham on charges of public profanity and disorderly conduct.

¶ 4. On September 13, 2016, the municipal court found Higginbotham guilty of public profanity and disorderly conduct and sentenced him to pay a fine of $246.25 for each charge. Higginbotham appealed to the circuit court. The circuit court held a bench trial de novo on November 14, 2016, and heard testimony from Officer Eichelberger. Higginbotham represented himself.

¶ 5. After the trial, the circuit court found Higginbotham guilty of public profanity under Mississippi Code Annotated section 97-29-47 (Rev. 2014) and disorderly conduct under Mississippi Code Annotated section 97-35-7(1) (Rev. 2014). On December 2, 2016, the circuit court entered an order sentencing Higginbotham to pay a fine of $246.25 for each charge, plus court costs.

¶ 6. Higginbotham appeals, asserting the following assignments of error: (1) the circuit court erred in excluding the surveillance tapes from evidence; (2) he should not have been held to the same standard as an attorney; (3) the State failed to inform him of the statutes under which he was being charged; (4) his sentence exceeded the statutory maximum fine; and (5) he did not receive a fair trial.

STANDARD OF REVIEW

¶ 7. The Mississippi Supreme Court has held that "[a] circuit court judge sitting without a jury is afforded the same deference as a chancellor. We will not disturb a circuit court's findings after a bench trial unless they are manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." City of Jackson v. Sandifer , 107 So.3d 978, 983 (¶ 16) (Miss. 2013) (internal quotation marks omitted).

DISCUSSION

¶ 8. Higginbotham argues that the circuit court erred by failing to rule on two motions that he filed with the court: a pretrial motion to dismiss and a post-trial motion for a new trial. In this appeal, we address only the post-trial motion for the reasons set forth below.

¶ 9. The record shows that on November 16, 2016, two days after trial, Higginbotham filed a motion for a new trial in which he argued:

NOW COME[S] KEITH HIGGINBOTHAM, the defendant in above cause to request a new trial. The defense argues the judge denied use of video evidence in trial on the bas[i]s [that] the defense failed to turn it over on discovery. The defense filed a motion for discovery, but the [S]tate failed to request reciprocal discovery. The [S]tate knew or should have known this evidence was available. The defense also argues the judge should have granted a continuance instead of not allowing the evidence.
The defense request[s] the presiding judge remand this case to another county, at the very least a new judge. The defendant will not receive a fair and impartial trial in Winston County. The judge unethically accused the defendant of a crime that was never charged without due process of law. The defense should have been included in private conversations the judge had with the officer that was the [State's] only witness. The officer had no right to whisper something in the judge's ear without the defense knowing what was said.

¶ 10. The City asserts that Higginbotham also failed to present the motion for a new trial to the circuit court. However, the motion for a new trial appears on the circuit court docket in the record before us, and this post-trial motion was indeed stamped filed on November 16, 2016. No ruling on this motion appears in the record before us. On December 12, 2016, Higginbotham nonetheless filed a notice of appeal of the circuit court's December 2, 2016 judgment.

¶ 11. At the time of Higginbotham's prosecution, Mississippi Rule of Appellate Procedure Rule 4(e) provided as follows:

"If a defendant makes a timely motion under the Uniform Rules of Circuit and County Court Practice (1) for judgment of acquittal notwithstanding the verdict of the jury, or (2) for a new trial under Rule 10.05, the time for appeal for all parties shall run from the entry of the order denying such motion." Rule 4(e) further stated that

[I]n criminal cases[,] the 30 day period shall run from the date of the denial of any motion contemplated by this subparagraph, or from the date of imposition of sentence, whichever occurs later. A notice of appeal filed after the court announces a decision[,] sentence, or order but before it disposes of any of the above motions, is ineffective until the date of the entry of the order disposing of the last such motion outstanding, or until the date of the entry of the judgment of conviction, whichever is later .

(Emphasis added).

¶ 12. Higginbotham filed his notice of appeal before the circuit court disposed of his motion for a new trial. Pursuant to Rule 4(e), Higginbotham's notice of appeal is therefore "ineffective" until the circuit court enters an order disposing of his motion for a new trial. This Court therefore lacks jurisdiction, and we dismiss Higginbotham's appeal. See Rabalais v. State , 986 So.2d 1050, 1051 (¶ 4) (Miss. Ct. App. 2008). Based on the foregoing, we decline to address Higginbotham's claim of error as to his pretrial motion to dismiss.

¶ 13. APPEAL DISMISSED.

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

      On the Court's own motion, appellate cause numbers 2016-KM-01753-COA and 2016-KM-01755-COA were consolidated for appeal purposes. In cause number 2016-KM-01753-COA, Higginbotham appeals his misdemeanor conviction for public profanity. In cause number 2016-KM-01755-COA, he appeals his misdemeanor conviction for disorderly conduct. Both cases arose from the same set of operative facts, and they were tried together in the circuit court.

      The Uniform Rules of Circuit and County Court Practice no longer govern criminal practice in Mississippi and have been replaced by the Mississippi Rules of Criminal Procedure, effective July 1, 2017. Higginbotham's prosecution preceded this change. At the time of Higginbotham's trial, Rule 10.05 of the Uniform Rules of Circuit and Court Practice required that "a motion for a new trial ... be made within ten days of the entry of judgment." Higginbotham filed his motion for a new trial fifteen days before the circuit court's entry of judgment. However, Higginbotham's motion for a new trial was timely. See Sweet v. Luster , 492 So.2d 983, 985 (Miss. 1986) (finding that a notice of appeal filed after the announcement of the decision but before the entry of a judgment "shall be treated as filed after such entry and on the date thereof").


text:
    Amy VOSS, Appellant v. Daven Joseph DOUGHTY, Appellee
    NO. 2016-CA-01799-COA
    Court of Appeals of Mississippi.
    April 10, 2018
    ATTORNEY FOR APPELLANT: MARGARET ANNA REID, Memphis
    ATTORNEY FOR APPELLEE: DAVEN JOSEPH DOUGHTY (PRO SE)
    BEFORE IRVING, P.J., BARNES AND WILSON, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. In November 2014, the DeSoto County Chancery Court granted Amy Voss and Daven Joseph Doughty joint legal custody of their daughter (Aqua), granted Voss physical custody, and granted Doughty visitation. A little over one month later, Voss filed a petition to modify visitation and to hold Doughty in contempt. Doughty answered and filed a counterclaim for modification of custody or visitation and for contempt. The chancellor denied Voss's petition, granted Doughty's request to modify custody, ordered the parties to share joint physical custody of Aqua, and terminated Doughty's child support obligation. On appeal, Voss argues that the chancellor erred by (1) modifying custody, (2) denying her petition to modify visitation, and (3) declining to find Doughty in contempt.

¶ 2. We hold that custody should not have been modified because there was no evidence of a material change in circumstances since the prior custody order. Therefore, we reverse and render the modification of custody. We also reverse and render the chancellor's sua sponte modification of child support, which was based on the erroneous modification of custody. We affirm the chancellor's denial of Voss's requests to modify visitation and to hold Doughty in contempt.

FACTS AND PROCEDURAL HISTORY

¶ 3. Aqua was born in November 2014. Doughty is Aqua's father, but he and Voss were never married. Doughty is now married to another woman, Ashley. They live with Ashley's mother and a friend, Trey Brady, in a duplex in Senatobia. For a time after Aqua was born, Voss and Aqua also lived in the duplex with Doughty, Ashley, Ashley's mother, and Brady. However, Voss and Aqua subsequently moved in with Voss's parents in Olive Branch.

¶ 4. By order entered on November 4, 2015, the chancery court granted Voss and Doughty joint legal custody of Aqua, granted Voss physical custody, and granted Doughty visitation the first and third weekend of each month and certain holidays. The court also ordered Doughty to pay child support of $150 per month. The court ordered the parties not to smoke in Aqua's presence and to follow any of Aqua's doctors' recommendations.

¶ 5. Voss was twenty-three years old at the time of trial. She works shifts at FedEx from 10 p.m. to 3:30 a.m. during the week and from 10 a.m. to 2 p.m. on Sundays. Her father is a pilot at FedEx, and her mother, Diana Christopher, cares for Aqua while Voss is at work, although of course Aqua generally is asleep while Voss is working night shifts. Voss catches up on sleep during the day, and Christopher helps with childcare during the day too. Aqua attends preschool two days each week from 9 a.m. to 2 p.m., and Voss picks her up from school and cares for her until her bedtime at 8 p.m.

¶ 6. English is Voss's second language, as she was adopted from China when she was eight years old. In addition, Voss has been diagnosed with Central Auditory Processing Deficit (CAPD), a disorder that affects her ability to listen, process, and respond to spoken words. Voss is able to understand and communicate with others, but it takes her longer to respond to others because of her disorder.

¶ 7. As noted above, Doughty lives in a duplex with his wife, his mother-in-law, and a friend. He is unemployed. He was fired from his last job at WalMart in the fall of 2015. He then enrolled in cosmetology school, but he withdrew. He testified that he had to withdraw for medical reasons. He has applied for disability benefits, but he has been denied twice. He claims that he has an undiagnosed medical condition that causes leg and back pain and difficulty walking or standing. Doughty testified that, because of his condition, he primarily sits on the floor or couch with Aqua when he keeps her. However, he testified that he is able to do everything necessary to care for Aqua, except give her baths or prepare food or drinks for her. Doughty testified that "if [Aqua] wants something to drink, ... she'll just bring [her cup] to [Brady] because she knows [Brady] will go make it." Ashley gives Aqua baths when she is visiting Doughty. Because Doughty is unemployed, he is behind on his child support payments. However, his mother-in-law has made a few payments for him. At the time of trial, Ashley had a new job, and she testified that she would be able to catch up on Doughty's child support arrearage for him.

¶ 8. On December 10, 2015, Voss filed a petition to modify visitation, to increase child support, and to hold Doughty in contempt for violating the November 2015 order. Voss alleged that Aqua's visitation schedule did not work because Aqua was "heavily exposed" to secondhand and thirdhand smoke, which was making her sick. Voss also claimed that an increase in child support was warranted because Aqua no longer qualified for Medicaid benefits and it would be financially burdensome for Voss to pay for health insurance by herself. Voss asked that Doughty be held in contempt for not following a pediatrician's recommendation and for exposing Aqua to cigarette smoke. Doughty answered and filed a counterclaim for modification of custody or visitation and for contempt. He alleged that Voss had failed to keep him informed of Aqua's doctors' appointments.

¶ 9. The chancellor assigned to hear the petition and counterclaim was not the same chancellor who entered the prior custody order. The case was tried on August 30, 2016. At the conclusion of the trial, the chancellor denied Voss's petition to modify visitation and increase child support and declined to hold Doughty in contempt. However, the chancellor granted Doughty's petition to modify custody and awarded him joint physical custody with Voss, with physical custody to alternate on a weekly basis. The chancellor also terminated Doughty's child support obligation and made each parent responsible for the cost of Aqua's care during their respective periods of custody. In her bench ruling, the chancellor said that the changed circumstances justifying a change in custody were (1) that Voss was working nights and sleeping during the day, leaving Christopher to care for Aqua, and (2) Voss's language and communication issues ("her flat affect that I observed here today").

¶ 10. Voss filed a timely notice of appeal. She argues that the chancellor erred by modifying custody because there was no change in circumstances and because the chancellor did not perform an Albright analysis. Voss also argues that the chancellor erred by denying her petition to modify visitation and by not finding Doughty in contempt.

ANALYSIS

¶ 11. Doughty failed to file a brief despite a show-cause notice pursuant to Rule 2 of the Mississippi Rules of Appellate Procedure. "Automatic reversal is not required where the appellee fails to file a brief, but reversal is appropriate if the appellant's argument creates doubt in the judiciousness of the trial court's judgment." Vassar v. Vassar , 228 So.3d 367, 374 (¶ 22) (Miss. Ct. App. 2017) (quotation marks omitted). However, when, as in this case, "child custody is at issue, the Court is compelled to review the record, despite [Doughty's] failure to file a brief." Muhammad v. Muhammad , 622 So.2d 1239, 1243 (Miss. 1993).

¶ 12. "This Court employs a limited standard of review on appeals from chancery court." Campbell v. Watts , 192 So.3d 317, 318 (¶ 5) (Miss. Ct. App. 2015). "A chancellor's findings of fact will not be disturbed unless manifestly wrong or clearly erroneous." Sanderson v. Sanderson , 824 So.2d 623, 625 (¶ 8) (Miss. 2002). "Legal questions, however, are reviewed de novo." Sanford v. Sanford , 124 So.3d 647, 652-53 (¶ 21) (Miss. 2013).

I. Custody

¶ 13. "A modification of custody is warranted when the moving parent successfully shows (1) that a material change of circumstances has occurred in the custodial home since the most recent custody decree, (2) that the change adversely affects the child, and (3) that modification is in the best interest of the child." Campbell , 192 So.3d at 318 (¶ 6) (quotation marks omitted). The burden is on the parent requesting a change of custody to prove a material, adverse change in circumstances by a preponderance of the evidence. Staggs v. Staggs , 919 So.2d 112, 115 (¶ 11) (Miss. Ct. App. 2005). If that burden is met, the chancellor must "apply the Albright factors to determine whether modification is in the child's best interest." Campbell , 192 So.3d at 319 (¶ 6) (quoting White v. White , 26 So.3d 342, 351 (¶ 28) (Miss. 2010) ). However, if there has been no material, adverse change in circumstances, the Albright factors need not be addressed. See id.

¶ 14. Doughty's request to modify custody did not allege any specific change in circumstances. After trial, the chancellor found that Voss's schedule-working at night and sleeping during the day-was a change in circumstances. The chancellor also found that Voss's "communication problems" were a change in circumstances because Aqua was at an age at which she should be learning how to talk.

¶ 15. Although Voss worked nights and relied in part on her mother's help, Doughty failed to show that this was a change in circumstances since the prior custody order. Moreover, there was no evidence that this purported change adversely affected Aqua, who was, by all accounts, a normal, happy child. Nor was there any evidence of any material change in circumstances related to Voss's CAPD. Doughty testified that Aqua sometimes asked for things by using gestures-for example, when she wanted Brady to get her something to drink. The chancellor seemingly took that to mean that Aqua, who was less than two years old at the time of trial, had developmental issues that required a change in custody. However, there was simply no credible evidence to support such a finding.

¶ 16. We reverse and render the chancellor's modification of custody. Doughty did not prove by a preponderance of the evidence that there had been a material change in circumstances that adversely affected Aqua's well being. The chancellor's support for finding a material change in circumstances-that Voss relied on her mother for child care and had communication issues-were not shown to be new circumstances. Nor was there any evidence that these issues had an adverse effect on Aqua.

¶ 17. When the chancellor modified custody, she also modified child support. The prior custody order required Doughty to pay child support of $150 per month. The chancellor terminated Doughty's child support obligation and ruled that each party would be solely responsible for Aqua's support during their respective periods of custody. Because we reverse and render the chancellor's modification of custody, we also reverse and render the modification of child support. Therefore, the child support provision of the November 2015 order shall apply prospectively.

II. Visitation

¶ 18. Voss also argues that the chancellor erred by denying her petition to modify and limit Doughty's visitation. The chancellor denied Voss's petition after finding that there had been no "change in circumstances" since the original visitation order. The chancellor's ruling arguably misapplied the law concerning modification of visitation. "All that need be shown [to obtain a modification of visitation] is that there is a prior decree providing for reasonable visitation rights which isn't working and that [modification] is in the best interests of the children." Cox v. Moulds , 490 So.2d 866, 869 (Miss. 1986). On this issue, "our familiar change in circumstances rule has no application." Id. (citation omitted).

¶ 19. Nonetheless, we affirm on this issue because no evidence was presented that the visitation schedule was not working or was not in Aqua's best interest.

Voss petitioned the court to modify custody only thirty-six days after the original visitation order was entered. A "visitation plan should be given an opportunity to work." Jones v. McQuage , 932 So.2d 846, 849 (¶ 14) (Miss. Ct. App. 2006) (holding that there was no evidence that a visitation schedule was not working four months after its entry). Voss did not give the original visitation plan in this case an opportunity to work.

¶ 20. Moreover, Voss failed to prove that the original visitation plan was not working. She alleged that it was not working only because Aqua was being exposed to smoke while she was with Doughty. A representative from a drug testing company testified that a January 6, 2016 hair follicle test showed that Aqua had absorbed and metabolized nicotine from secondhand or thirdhand cigarette smoke. However, the witness testified that the test detected nicotine absorption dating back six months, so it could have reflected exposures prior to the chancery court's prior custody order. The witness also testified that the test did not identify when or where the exposure occurred or "whether it was once, twice, or three times"-only that it occurred sometime in the prior six months.

¶ 21. A pediatric pulmonologist, called by Voss as an expert witness, testified that "any nicotine level in your body is significant." He opined that Aqua's "chronic runny nose," coughing, congestion, and other "upper respiratory" issues "could be attributable to ... exposure to [cigarette] smoke." However, he acknowledged that "a lot of things" can cause such issues, that none of Aqua's treating physicians have attributed these issues to exposure to cigarette smoke, and that Aqua does not have asthma. The witness had never seen or examined Aqua, and his opinions were based solely on a review of her medical records.

¶ 22. Doughty and Ashley admitted that they smoke, but both denied that they smoke in their house or in Aqua's presence. They admitted that Ashley's mother, who pays most of their bills and has paid some child support for Doughty, does smoke in her bedroom with the door closed. They denied that they allowed anyone to smoke in Aqua's presence.

¶ 23. Obviously, parents should not expose their children to cigarette smoke. However, the evidence indicated that Doughty tried to protect Aqua from exposure, and there was no clear link between exposure and Aqua's congestion, runny noses, and coughing. Especially given the short time between entry of the prior custody order and Voss's petition to modify visitation, there was insufficient evidence that the visitation schedule was not working. We therefore affirm the chancellor's denial of Voss's petition to modify visitation.

III. Contempt

¶ 24. Voss also argues that the chancellor should have cited Doughty for contempt because he violated the prior order's provision that "neither party shall smoke cigarettes in [Aqua's] presence." Voss also argues that Doughty permitted Aqua to be exposed to secondhand smoke, in contravention of her doctor's recommendations. However, as noted above, the evidence did not clearly establish when or where Aqua was exposed to smoke. Indeed, there was testimony that the test results admitted into evidence may have reflected exposures that predated the prior custody order. In addition, Doughty and Ashley testified that they tried to protect Aqua from exposure to smoke.

¶ 25. "Whether a party is in contempt is a question of fact to be decided on a case-by-case basis. A chancellor has substantial discretion in deciding contempt matters because of the chancellor's 'temporal and visual proximity' to the litigants." Gilliland v. Gilliland , 984 So.2d 364, 369-70 (¶ 19) (Miss. Ct. App. 2008). On this evidence, we cannot say that the chancellor manifestly erred or abused her discretion by not finding Doughty in contempt.

CONCLUSION

¶ 26. We reverse and render the modification of custody because Doughty failed to prove any material change in circumstances since the entry of prior custody order. Therefore, we also reverse and render the chancellor's sua sponte modification of child support. We affirm the denial of Voss's petition to modify visitation and to hold Doughty in contempt.

¶ 27. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      The order shows that it was signed about six weeks earlier on September 23, 2015.

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

      In addition, the chancellor did not perform any sort of Albright analysis. This is also grounds for reversal. See Campbell , 192 So.3d at 319 (¶ 7).


author: BARNES, J., FOR THE COURT:

text:
    Gerome MOORE a/k/a Gerome Montreal Moore, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01329-COA
    Court of Appeals of Mississippi.
    April 10, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: HUNTER NOLAN AIKENS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JOSEPH SCOTT HEMLEBEN
    BEFORE IRVING, P.J., BARNES AND WILSON, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. Gerome Moore was confined at the Hinds County Detention Center in Jackson, Mississippi, following his arrest for capital murder and carjacking. On May 3, 2015, Officer Willie Brown of the Jackson Police Department was driving from the jail when he spotted "three juveniles"-later identified as Moore and fellow inmates, Antwain Dukes and William Smith-running from the detention center. Brown radioed for assistance and began following the men in his vehicle. Officer Frederick Reginald was in the area and heard the call. He spotted one male, who had already been detained, and was informed the group had split up. Soon thereafter, Officer Reginald and another officer pulled over near the city barn and encountered a second inmate, Moore, lying in a nearby grassy area. Moore was apprehended and returned to custody.

¶ 2. In the meantime, Captain Charles Felton of the Jackson Fire Department went to the detention center, responding to a report of a fire. He determined the fire was a result of arson inside Smith's cell. Clothes and exposed wires had been used to start a fire, and petroleum jelly was applied around the cell window, which aided the fire from the burning clothes to melt the adhesive around the window. A lighter was also discovered on the ground level of the building in close proximity to where the inmates were seen.

¶ 3. Moore was indicted on October 28, 2015, for one count of felony escape and one count of malicious mischief. A jury trial was held in Hinds County Circuit Court, First Judicial District, on May 17, 2016. To keep the jury from hearing that Moore was in custody for capital murder and carjacking, the parties stipulated to the fact that Moore "was lawfully in the custody of the Hinds County Detention Center, being held on a felony charge." This stipulation was read to the jury after opening statements. Although acquitted of the charge for malicious mischief, Moore was convicted of felony escape and sentenced to a term of five years in the custody of the Mississippi Department of Corrections.

¶ 4. No post-trial motion for a judgment notwithstanding the verdict (JNOV) or for a new trial was filed. But on August 28, 2016, Moore's trial counsel filed a motion for leave to file an out-of-time appeal, which the circuit court granted, and Moore filed his notice of appeal on September 14, 2016.

DISCUSSION

¶ 5. Moore is represented on appeal by the Indigent Appeals Division of the Office of the State Public Defender, and appellate counsel has filed a Lindsey brief stating he cannot find any arguable issues to support an appeal. In Lindsey v. State , 939 So.2d 743 (Miss. 2006), the Mississippi Supreme Court outlined the following procedure for when appellate counsel determines there are no appealable issues in the record:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1) -[ (5), (8) ]; see also [ Smith v. ] Robbins , 528 U.S. [259, 280-81, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) ] (stating that "counsel's summary of the case's procedural and factual history, with citations of the record, both ensures that a trained legal eye has searched the record for arguable issues and assists the reviewing court in its own evaluation of the case").
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client's appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client's right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant's success on appeal.
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Lindsey , 939 So.2d at 748 (¶ 18) (internal citations and footnotes omitted).

¶ 6. Moore's appellate counsel complied with the requirements in Lindsey and sent a copy of the Lindsey brief to Moore, advising him that counsel found no arguable issues in the record. Specifically, appellate counsel considered the effectiveness of trial counsel "in failing to file a motion for a JNOV/new trial and in stipulating that Moore was lawfully confined in jail on a felony charge" and determined "that he could not in good faith present the issue of ineffective assistance of counsel" on appeal. Appellate counsel also informed Moore of his right to file a pro se supplemental brief. This Court granted Moore an additional forty days to file his brief, which he has failed to do.

¶ 7. Upon review, the record contains sufficient evidence to support the jury's finding that Moore was guilty of the charged offense of felony escape. We further find no arguable appellate issues exist that would require supplemental briefing. Accordingly, we affirm Moore's conviction and sentence.

¶ 8. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.


text:
    Burnette AVAKIAN, Individually and as Executrix of the Estate of Norair Avakian, Deceased, Appellant/Cross-Appellee v. WILMINGTON TRUST, NATIONAL ASSOCIATION, as Successor Trustee to Citibank, N.A., as Trustee for Bear Stearns Asset Backed Securities Trust 2007-2, Asset-Backed Certificates, Series 2007-2, Appellee/Cross-Appellant
    NO. 2017-CA-00291-COA
    Court of Appeals of Mississippi.
    April 10, 2018
    STEVEN CRAIG PANTER, ATTORNEY FOR APPELLANT
    WILLIAM JACOB LONG IV, CHRISTOPHER DANIEL MEYER, ATTORNEYS FOR APPELLEE
    BEFORE LEE, C.J., GREENLEE AND TINDELL, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. This case is the latest in a series of litigation between the parties regarding Wilmington Trust, National Association's right to foreclose on Burnette Avakian's home. In this appeal, we must decide whether the chancery court-finding that res judicata applied-properly granted Wilmington Trust's motion for partial summary judgment on its claims for judicial foreclosure, breach of contract, and declaratory judgment. On cross-appeal, we must also decide whether the chancery court properly granted Burnette's motion for partial summary judgment on Wilmington Trust's claim for unjust enrichment. Following a de novo review, we affirm the judgments of the chancery court.

¶ 2. We acknowledge the facts and circumstances giving rise to the instant action on appeal are identical to those in previous actions between these same parties. See Estate of Avakian v. Wilmington Tr. Nat'l Ass'n , 231 So.3d 208 (Miss. Ct. App. 2017) (probate action); Avakian v. Citibank N.A. , 773 F.3d 647 (5th Cir. 2014) ; Avakian v. Citibank N.A. , No. 1:12-CV-00139-SA-DAS, 2015 WL 4643129 (N.D. Miss. Aug. 4, 2015) (federal action).

¶ 3. Because the chancery court's decision to grant summary judgment on certain claims in the instant case was based on the doctrine of res judicata, it is necessary to detail not only the facts and procedural history of the instant case, but also the prior actions between the parties.

FACTS

¶ 4. In September 2002, Norair and Burnette Avakian, husband and wife, purchased a house in Columbus, Mississippi, and executed a deed of trust to secure a loan for the purchase from Southstar Financing LLC. At that time, the title to the property was vested in both their names as joint tenants. Then, in November 2004, Norair executed a deed conveying title to the property to Burnette alone. In March 2006, the Avakians refinanced the mortgage with EquiFirst Corporation, and Norair took out a loan in his name only and executed a promissory note in favor of EquiFirst. It was undisputed that the Avakians intention was to structure the ownership and debt so that Burnette would not be liable for the debt if Norair died. However, because title was vested in Burnette alone, EquiFirst required both Burnette and Norair to execute a deed of trust. Norair was out of state at the time of the closing, so Burnette and Norair each signed separate deeds of trust on the property. This resulted in two deeds of trust on the property-one executed by Norair on March 7, 2006, and one executed by Burnette on March 8, 2006. Each deed of trust was recorded as a separate instrument with the Lowndes County Chancery Clerk.

¶ 5. Norair's promissory note to EquiFirst was later sold to Citibank N.A. in its capacity as trustee of the Bear Sterns Asset Backed Securities Trust. J.P. Morgan became the servicing agent for Citibank. On December 3, 2012, Wilmington Trust replaced Citibank as the trustee for Bear Sterns. So, J.P. Morgan served as the servicer for the loan, and EquiFirst, Citibank, and Wilmington Trust were the successive creditors.

¶ 6. Norair defaulted on the promissory note and died shortly after in July 2010. In early 2012, Citibank, the trustee/creditor at that time, noticed Burnette its intention to foreclose on the house and set the foreclosure sale for May 10, 2012. On May 9, 2012, the day before the scheduled foreclosure sale, Burnette filed suit in the chancery court against Citibank seeking to enjoin the foreclosure. This began the series of litigation between the parties present on appeal (through Wilmington Trust's predecessor, Citibank).

PROCEDURAL HISTORY

1. Federal Action

¶ 7. On May 9, 2012, Burnette filed a lawsuit in chancery court to enjoin Citibank from foreclosing on the property. She argued that the two deeds of trust on the home were both void pursuant to Mississippi Code Annotated section 89-1-29 (Rev. 2011) because neither deed contained the signatures of both Burnette and Norair. Citibank removed the lawsuit to the United States District Court for the Northern District of Mississippi. Following a trial, the district court entered a final judgment on February 10, 2014, in favor of Burnette, holding that the deeds of trust on the house were unenforceable. See Avakian v. Citibank N.A. , No. 1:12-CV-00139-SA-DAS, 2014 WL 346861 (N.D. Miss. Jan. 30, 2014), rev'd and remanded , 773 F.3d 647 (5th Cir. 2014).

¶ 8. Citibank appealed the decision to the Fifth Circuit Court of Appeals. See Avakian , 773 F.3d at 649. During the appeal, the Fifth Circuit issued a stay on May 12, 2014, that prohibited foreclosure of the property during the pendency of the appeal. On December 9, 2014, the Fifth Circuit reversed the district court, finding that the Mississippi Supreme Court would likely construe the two deeds of trust as together creating a valid deed of trust. Id. at 653. Thus, the Fifth Circuit found the two deeds of trust together formed a valid and enforceable instrument and remanded the case for further proceedings. Id.

¶ 9. On remand in the district court, Citibank filed a motion for entry of final judgment. See Avakian , 2015 WL 4643129, at *1. In response, Burnette filed a motion to dismiss the action without prejudice, arguing that it became moot on December 3, 2012, when Wilmington Trust succeeded Citibank as trustee for the lienholder. Id. at *2. Citibank responded by filing a motion to substitute Wilmington Trust as the defendant and then renewed its request for entry of a final judgment. Id. The district court noted that "[ Rule 25 of the Federal Rules of Civil Procedure ] states that when 'an interest is transferred, the action may be continued by or against the original party unless the court, on motion, orders the transferee to be substituted in the action or joined with the original party.' " Id. (quoting Fed. R. Civ. P. 25(c) ). In applying the rule, the district court found that it was proper for Citibank to continue as the named defendant even after it ceased to have any interest in the subject property. Id. Further, the district court noted that "[Burnette] [did] not dispute that Wilmington succeeded Citibank as trustee on December 3, 2012. In fact, [Burnette relied] upon the complete transfer of Citibank's interest to Wilmington in arguing that th[e] action [was] moot because Citibank no longer ha[d] any interest in the outcome." Id. at *3. Accordingly, the district court denied Burnette's motion to dismiss with prejudice, granted Citibank's motion to substitute Wilmington Trust, and granted Citibank's motion for final judgment in favor of Wilmington Trust. Id.

2. Probate Action

¶ 10. On July 28, 2010, Burnette filed a petition in the Lowndes County Chancery Court to probate Norair's last will and testament. That same day, the chancery court entered an order probating the last will and testament and issued letters testamentary to Burnette to serve as executor of the Estate. Burnette did not identify any entity as a known creditor of the Estate and did not provide Wilmington Trust, or any creditor, notice by mail regarding the probate of the Estate, thereby failing to comply with Mississippi Code Annotated section 91-7-145 (Rev. 2013). She did file a "Notice to Creditors Affidavit," stating that she had and would notify known creditors; however, she did not list any specific creditors.

¶ 11. Citibank made two attempts to foreclose in 2010 but did not complete the process. During the pendency of the 2012 foreclosure attempt, after the district court (prior to appeal) ruled that the deeds of trust were void and unenforceable, Citibank (through its servicer, J.P. Morgan)

filed a statement of claim on October 14, 2014, in the probate proceeding pending in chancery court based upon Norair's debt arising from the promissory note of $815,905.06. The statement of claim set forth that "[t]he claim was presumed secured pursuant to a mortgage loan; however, the claim has been deemed unsecured via [the district court's judgment]." Burnette filed her contest of the statement of claim, asserting that any claim on the promissory note was time-barred by Mississippi Code Annotated section 15-1-25 (Rev. 2012), and that pursuant to Mississippi Code Annotated section 15-1-3 (Rev. 2012), the statute of limitations had run on the underlying claim.

¶ 12. The chancellor found that although Citibank filed its statement of claim outside of the ninety-day statutory time period to probate a claim against the Estate under Mississippi Code Annotated section 91-7-151 (Rev. 2013), the claim was still timely filed due to Burnette's failure as executor to provide all reasonably ascertainable creditors with notice of probate of the Estate as required by section 91-7-145.

¶ 13. In regard to Burnette's argument that the statute of limitations had run on the underlying claim, the chancellor noted that if the creditor is not paid on a claim based on the promissory note during the probate proceeding, the creditor must then bring a separate civil suit against the Estate to enforce that claim on the promissory note before the four-year statute of limitations in such actions expires under section 15-1-25. The chancellor acknowledged that letters testamentary were issued to Burnette on July 28, 2010; the ninety-day moratorium on bringing a civil suit against an executor under Mississippi Code Annotated section 91-7-239 (Rev. 2013) expired on October 26, 2010; and on that date, the four-year statute of limitations established by section 15-1-25 began to run and expired on October 26, 2014. The chancellor determined that although Wilmington Trust, or any other creditor, had not filed a civil action against the Estate prior to October 26, 2014, the Fifth Circuit's stay (entered May 12, 2014) prohibiting any creditor from foreclosing on the property began and triggered the tolling of the statute of limitations under section 15-1-25 as to the promissory note. The chancellor also subsequently found that "the tolling period ceased at its earliest on December 9, 2014, approximately seven months later, when the Fifth Circuit reversed the U.S. District Court, or at the latest on August 4, 2015, when the U.S. District Court rendered a final judgment."

¶ 14. Burnette appealed the chancellor's decision in the probate action to this Court in Estate of Avakian, 231 So.3d at 210 (¶ 1). In Estate of Avakian , this Court affirmed the judgment of the chancery court, holding there was "no error in the chancellor's finding that the statement of claim in this probate proceeding was timely filed, and ... no error in the chancellor's determination that 'the Fifth Circuit's stay entered May 12, 2014, prohibiting [Equifirst, J.P. Morgan, Citibank, and Wilmington Trust] Creditor from foreclosing on the property pending the appeal began the tolling of section 15-1-25 as to the promissory note in accordance with section 15-1-57.' " Id. at 218 (¶ 40). The supreme court denied Burnette's petition for writ of certiorari. See Avakian v. Wilmington Tr. Nat'l Ass'n , 229 So.3d 122 (Miss. 2017).

3. Current State Action

¶ 15. Following the final judgment of the federal district court (on remand), Wilmington Trust filed the current action now on appeal on February 23, 2015. This filing came less than three months after reversal and, thus, was timely according to this Court in the Estate action. In the present suit, Wilmington Trust made the following claims: Count I (judicial foreclosure); Count II (breach of contract); Count III (unjust enrichment); and Count IV (declaratory judgment). On November 10, 2015, Wilmington Trust moved for partial summary judgment as to Counts I, II, and IV of the complaint. Burnette opposed the motion, arguing that there was a genuine issue of material fact as to whether Wilmington Trust was the true owner and holder of the promissory note and deeds of trust.

¶ 16. The chancellor found that res judicata barred this defense raised by Burnette. The chancellor also found that it was undisputed that the Avakians had defaulted on the promissory note, that none of the indebtedness had been repaid, and that the deed of trust provided for foreclosure upon default. Finding that no other issues were left unresolved by previous litigation or were ripe for decision and not raised, the chancellor granted partial summary judgment in favor of Wilmington Trust as to Counts I, II, and IV. The chancellor, however, granted partial summary judgment in favor of Burnette on Wilmington Trust's unjust-enrichment claim (Count III).

¶ 17. Burnette now appeals the chancellor's grant of partial summary judgment in favor of Wilmington Trust on Counts I, II, and IV; and Wilmington Trust cross-appeals the chancellor's grant of partial summary judgment in favor of Burnette on its unjust-enrichment claim.

STANDARD OF REVIEW

¶ 18. This Court "conduct[s] a de novo review of a trial court's grant of summary judgment." Estate of White v. White , 152 So.3d 314, 316 (¶ 9) (Miss. 2014). "A civil defendant may raise res judicata in a motion for summary judgment where a plaintiff's suit centers around issues decided in a previous lawsuit." Id. at 316-37 (¶ 9). In viewing the evidence in the light most favorable to the nonmoving party, summary judgment is proper where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mitchell v. Ridgewood E. Apartments LLC , 205 So.3d 1069, 1073 (¶ 13) (Miss. 2016) (quoting M.R.C.P. 56(c) ).

DISCUSSION

I. Res Judicata

¶ 19. In response to the grant of summary judgment on Wilmington Trust's claims in Counts I, II, and IV, Burnette contends there is a genuine issue of material fact regarding whether Wilmington Trust was the true holder of the promissory note and deeds of trust. The chancellor held that this claim was barred under the doctrine of res judicata. After a de novo review, we agree.

¶ 20. Under the doctrine of res judicata, parties are barred "from litigating claims within the scope of the judgment in a prior action." Hill v. Carroll Cty. , 17 So.3d 1081, 1084 (¶ 8) (Miss. 2009) (citation and internal quotation marks omitted). "This includes claims that were made or should have been made in the prior suit." Id. "The doctrine of res judicata is fundamental to the equitable and efficient operation of the judiciary and reflects the refusal of the law to tolerate a multiplicity of litigation." Gibson v. Williams, Williams & Montgomery P.A. , 186 So.3d 836, 844 (¶ 16) (Miss. 2016) (citation and internal quotation marks omitted). "The courts cannot revisit adjudicated claims[,] and all grounds for[ ] or defenses to recovery that were available to the parties in the first action, regardless of whether they were asserted or determined in the prior proceeding, are barred from re-litigation in a subsequent suit under the doctrine of res judicata." Id. (citation and internal quotation marks omitted).

¶ 21. "Under the principle known as 'bar,' res judicata precludes claims which were actually litigated in a previous action." Hill , 17 So.3d at 1084 (¶ 9). "Under the principle known as 'merger,' res judicata prevents subsequent litigation of any claim that should have been litigated in a previous action." Id. at 1084-85 (¶ 9).

¶ 22. In order for res judicata to apply, the following four identities must be present : "(1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom the claim is made." Id. at 1085 (¶ 10). "[O]nce the four identities of res judicata have been established, any claims that could have been brought in the prior action are barred." Id. However, "the absence of any one of the elements is fatal to the defense of res judicata." Id. "Additionally, the prior judgment must be a final judgment adjudicated on the merits." Doss v. Dixon , 131 So.3d 1265, 1269 (¶ 8) (Miss. Ct. App. 2014). "A final judgment on the merits is a judgment based on the evidence rather than on technical or procedural grounds." White , 152 So.3d at 317 (¶ 10) (citation and internal quotation marks omitted).

¶ 23. In the prior federal action, the district court's judgment (August 4, 2015) was based on evidence, and not rendered on technical or procedural grounds. As such, it is a final judgment on the merits for the purposes of res judicata. We now turn to examine whether the four identities are present for res judicata to apply.

A. Identity of the Subject Matter of the Action

¶ 24. "The doctrine of res judicata bars a second action between the same parties on the subject matter directly involved in the prior action." Hill , 17 So.3d at 1085 (¶ 12) (citation omitted). "In older cases, [the supreme court] has referred to subject[-]matter identity as identity in the thing sued for." Id. (citation and internal quotation marks omitted). "More recently, the [supreme court] defined subject matter as the 'substance' of the lawsuit." Id. In the instant case, the subject matter of the prior federal action is the same as the subject matter of this case: Wilmington Trust's (and its predecessors') attempt to foreclose on Burnette's property under the deeds of trust and promissory note following the Avakians' default. Therefore, the subject-matter identity is met.

B. Identity of the Cause of Action

¶ 25. The "cause of action" in the suits must also be the same. Id. at (¶ 13). The supreme court has defined the "cause of action" as "the underlying facts and circumstances upon which a claim has been brought." Id. (citation omitted). The underlying facts and circumstances giving rise to all the previous litigation, including the prior federal case, are identical to those in the present case on appeal: the Avakians executed certain deeds of trust to secure a loan for the subject property, and later defaulted under the promissory note, which prompted Wilmington Trust (and its predecessors) to seek foreclosure. The cause-of-action identity is met.

C. Identity of the Parties to the Cause of Action

¶ 26. "Although identity of the parties is a necessary element of res judicata, [the supreme court] repeatedly has held that 'strict identity of parties is not necessary ... if it can be shown that a nonparty stands in privity with the party in the prior action.' " EMC Mortg. Corp. v. Carmichael , 17 So.3d 1087, 1090-91 (¶ 13) (Miss. 2009).

Privity is a word which expresses the idea that as to certain matters and in certain circumstances persons who are not parties to an action but who are connected with it in their interests are affected by the judgment with reference to interests involved in the action, as if they were parties.

Fason v. Trussell Enters. Inc. , 120 So.3d 454, 460 (¶ 18) (Miss. Ct. App. 2013) (quoting In re Estate of Bell , 976 So.2d 965, 968 (¶ 7) (Miss. Ct. App. 2008) ).

¶ 27. In the prior federal case, Citibank was initially named as a defendant in Burnette's suit to enjoin the foreclosure. In 2012, Citibank assigned the promissory note and deeds of trust to Wilmington Trust, and Wilmington Trust replaced Citibank as trustee. Thus, Wilmington Trust is undoubtedly in privity with Citibank in regard to the previous litigation between Citibank and Burnette. Furthermore, in the prior federal case, the district court granted Citibank's motion to substitute Wilmington Trust as the defendant and the final judgment and memorandum opinion were entered as to Wilmington Trust's interests. Thus, the identities-of-the-parties element is met.

D. Identity of the Quality or Character of a Person Against Whom the Claim is Made

¶ 28. "Our supreme court has noted that it has not 'explicitly defined the identity of the quality or character of a person against whom the claim is made.' " Fason , 120 So.3d at 460 (¶ 20) (quoting Hill , 17 So.3d at 1086 (¶ 18) ). However, examples and applications of this identity exist, particularly where the parties are the same in the relevant actions and acting in the same interests or capacity. See Hill , 17 So.3d at 1086-87 (¶¶ 18-19) ; Black v. City of Tupelo , 853 So.2d 1221, 1225 (¶ 11) (Miss. 2003). Here, it is clear that the quality and character of the parties, Wilmington Trust as trustee and Burnette as executor for the Estate and individually, are the same in this case as in the prior federal action, and are acting in their same respective interests in the present case as in the prior action. As such, this identity is met.

¶ 29. Again, "once the four identities of res judicata have been established, any claims that could have been brought in the prior action are barred." Hill, 17 So.3d at 1085 (¶ 10). This is true for "all grounds for, or defenses to recovery that were available to the parties in the first action, regardless of whether they were asserted or determined in the prior proceeding ...." Gibson , 186 So.3d at 844 (¶ 16) (emphasis added).

¶ 30. In the prior federal action, Burnette could have claimed that Wilmington Trust was not the true holder of the deed of trust or promissory note, thereby contesting Wilmington Trust's right to foreclose on Burnette's home. However, as the federal case reflects, Burnette instead chose to argue that Citibank's lawsuit for foreclosure became moot when its interest as trustee was transferred to Wilmington Trust. See Avakian , 2015 WL 4643129, at *2. The federal district court found that Burnette's argument lacked merit, because Rule 25 of the Federal Rules of Civil Procedure states that when "an interest is transferred, the action may be continued by or against the original party unless the court, on motion, orders the transferee to be substituted in the action or joined with the original party." Id. (quoting Fed. R. Civ. P. 25(c) ).

¶ 31. Additionally, in response to Burnette's argument, Citibank moved to substitute Wilmington Trust, and still, Burnette did not then claim that Wilmington Trust was not the true holder of the deed of trust or promissory note. Rather, as the district court noted, "[Burnette] does not dispute that Wilmington succeeded Citibank as trustee on December 3, 2012. In fact, [Burnette] relies upon the complete transfer of Citibank's interest to Wilmington in arguing that this action is now moot because Citibank no longer has any interest in the outcome." Id. at *3. The district court granted Citibank's motion to substitute Wilmington Trust as the defendant, and the district court rendered a final judgment in Wilmington Trust's favor, finding that it could foreclose. In the instant case, the chancellor properly noted that the right to foreclose had already been decided by the federal district court. After a de novo review, this Court too finds that res judicata applies. Thus, Burnette is precluded from claiming that Wilmington Trust was not the true holder of the deed of trust and promissory note. Accordingly, Wilmington Trust's motion for partial summary judgment with respect to Counts I, II, and IV of the complaint was properly granted.

II. Cross-Appeal: Unjust Enrichment

¶ 32. On cross-appeal, Wilmington Trust claims the chancery court erred when it granted Burnette's motion for summary judgment on its unjust-enrichment claim. The parties agree that Burnette lived and conducted a bed-and-breakfast business on the subject property without making any loan or rent payments under the promissory note or deed of trust since July 2010. It is also undisputed that Burnette profited through her commercial use of the property, although the parties dispute the amount of profit. As such, Wilmington Trust argues that Burnette has been unjustly enriched.

¶ 33. "An unjust[-]enrichment action is based on the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another." Beasley v. Sutton , 192 So.3d 325, 332 (¶ 23) (Miss. Ct. App. 2015) (citation and internal quotation marks omitted). However, "[u]njust enrichment applies to situations where there is no legal contract ...." Id. (citation and internal quotation marks omitted).

¶ 34. Here, Wilmington Trust cannot recover damages under an unjust-enrichment claim because there is a contract between the parties-the deed of trust and promissory note. Under the terms of the deed of trust, Wilmington's remedy in the event of a default was foreclosure. Wilmington Trust argues that the deed of trust contemplated only that the home would be used for a residence; however, there was nothing in the deed of trust that prohibited the home from being rented out. At a hearing on the summary-judgment motion, Wilmington Trust acknowledged that neither the deed of trust nor the promissory note contained an assignment-of-rents-and-profits provision. As such, because the parties' relationship is governed by contract, damages based on unjust enrichment are not an appropriate remedy. Thus, the chancery court properly granted summary judgment in favor of Burnette on this claim.

¶ 35. ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: AFFIRMED.

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

      The chancellor also issued rulings and granted partial summary judgment on other various counterclaims and defenses raised by the parties, thereby disposing of all the issues in the case below. However, in light of the lengthy and tedious procedural history already recounted, we omit these details, as they are not at issue on appeal.

      The chancellor did, however, order Burnette "to pay $2,500.00 per month in rent beginning February 1, 2017, and continuing each month thereafter until an appellate decision is rendered[,]" regarding Wilmington Trust's unjust-enrichment claim.