author: GREENLEE, J.,

text:
    BEDFORD CARE CENTER OF MARION, LLC, Appellant v. Cenither NICHOLSON, Appellee
    NO. 2014-CA-00804-COA
    Court of Appeals of Mississippi.
    01/24/2017
    Rehearing Denied May 23, 3017

      ATTORNEY FOR APPELLANT: ROBIN L. ROBERTS
    ATTORNEY FOR APPELLEE: CEN-ITHER NICHOLSON (PRO SE)
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   GREENLEE, J.,

FOR THE COURT:

¶ 1. The Mississippi Department of Employment Security’s Board of Review (Board) affirmed the denial of unemployment benefits following Cenither Nicholson’s termination from Bedford Care Center of Marion LLC (Bedford Care). The Circuit Court of Marion County reversed the denial of benefits, finding that Nicholson did not, when applying for the Bedford Care job, intentionally misrepresent whether she had ever previously filed a workers’ compensation claim or been injured on the job. We affirm the circuit court’s judgment.

FACTS AND PROCEEDINGS BELOW

¶ 2. In 2008, while working as certified nursing assistant (CNA) at East Mississippi State Hospital (EMSH), Nicholson pulled a muscle in her back while helping a patient who had fallen onto the floor. The Hospital paid for Nicholson’s emergency-room visit and she missed two or three days of work. In September 2012, Bedford Care hired Nicholson as a CNA. As part of the post-offer hiring process, Nicholson filled out a questionnaire asking if she had ever been injured on the job or filed a workers’ compensation claim. She answered no to these questions. Some months later, a routine audit of personnel files revealed the previous workers’ compensation claim on her behalf related to her emergency-room visit while employed at E'MSH. Nicholson was terminated from Bedford Care in May 2013 for the sole reason that she falsified information on her employment application.

¶ 3. Nicholson filed an unemployment claim, which was denied on the basis that Nicholson was discharged for misconduct connected with her employment and was therefore disqualified from receiving benefits. Nicholson appealed the denial of her claim. An administrative-law judge (ALJ) conducted a telephonic hearing. At the hearihg, concerning the questions related to whether she had ever filed a workers’ compensation claim, Nicholson testified; “I thought they was talkin’ about like a paycheck,‘money from Workman’s Comp. I, I didn’t know that like when they send you to the doctor, when you get hurt, that’s the samé1 as Workman’s Comp. When you go to the emergency room. I didn’t know that.”

¶ 4. She further testified that she understood the question about whether she had ever been injured on the job to refer to a seriops; 'injury that prevented her from working, and that.it did not occur to her to report the incident of the pulled back muscle because it did not prevent her from working. She also testified that it blended in with other memories.of her experience working at EMSH where she worked “on a unit where they fight a lot and we had to break up. a lot of fights and sometimes yo.u get scratched up or you might get knocked down or somethin’ like that.”

¶5. The Bedford Care administrator whú' fired Nicholson testified that receiving accurate information related to past injuries was relevant to determining an applicant’s physical ability to perform the job of nursing assistant. The application and the company’s employee-policy handbook stated that providing false information on the application was grounds for termination.

¶ 6. The ALJ ultimately determined that Nicholson was disqualified from receiving benefits, stating “[t]he application asked four specific questions related to prior injuries and workers’ compensation claims. The claimant responded in . the negative to all[,] which would indicate a willful or intentional falsification of information.” Nicholson appealed the ALJ’s decision to the Board. The Board affirmed the decision of the ALJ.

¶ 7. Nicholson then appealed the Board’s affirmance of the ÁLJ to the Circuit Court of Lauderdale County. The circuit court, sitting as an intermediate appellate court, reversed the Board, stating:

[Nicholson’s] testimony demonstrates that she neither understood the questions being asked on the ’[employment application,] nor did she intentionally provide false information; therefore, she did not intentionally provide false information during the hiring process.

In particular, the circuit court referenced Nicholson’s testimony that she did not receive any money, that she “didn’t know that going to the doctor was the same thing as Workman’s Compensation,” and that she thought that the questions about whether she had ever been injured on the job were referencing a serious injury that would prevent her from working.

¶ 8. Bedford Care appeals.

DISCUSSION

¶ 9. Our review of an administrative agency’s findings and decisions is limited, and an agency’s conclusions will remain undisturbed unless the agency’s decision (1) is not supported by substantial evidence, (2) is arbitrary or capricious, (3) is beyond the scope of power granted to the agency, or (4) violates the claimant’s constitutional rights. Miss. Emp’t Sec. Comm’n v. Ratcliff, 754 So.2d 595, 597 (¶ 9) (Miss. Ct. App. 2000). Appeals from the Board are governed by Mississippi Code Annotated section 71-5-531 (Rev. 2011), which provides;

In any judicial proceedings under this section, the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.

“[A]n order of the Board ... on the facts is conclusive upon the lower court, if supported by substantial evidence and in the absence of fraud, and the scope of review requires the determination of the sufficiency of the evidentiary basis of the decision.” Wheeler v. Arriola, 408 So.2d 1381, 1384 (Miss. 1982).

¶10. “In misconduct cases, the employer bears the burden to prove by substantial, clear, and convincing evidence that a former employee’s conduct warrants disqualification of benefits.” Over the Rainbow Daycare v. Miss. Dep’t of Emp’t Sec., 188 So.3d 1249, 1251 (¶ 7) (Miss. Ct. App. 2016). Disqualifying misconduct is “conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee.” Wheeler, 408 So.2d at 1382. However, an employee’s conduct may harm the employer’s interests and justify discharge from employment, yet not rise to the level of willful or wanton so as to invoke disqualification for unemployment-insurance benefits. Acy v. Miss. Emp’t Sec. Comm’n, 960 So.2d 592, 595 (¶ 14) (Miss. Ct. App. 2007).

¶ 11. Falsification of an employment application can be grounds for disqualification of benefits. Ratcliff, 754 So.2d at 598 (¶ 14). In Ratcliff, this Court affirmed the Board’s denial of unemployment benefits to a claimant who failed to disclose that her most recent employer was Walmart when filling out a Target application that requested the applicant to list previous employment. Id. at 596 (¶ 3). The employee in Ratcliff did not misunderstand the question on the application, but rather made her own decision that an accurate answer was not relevant. Id. at 598 (¶ 17). In agreeing with the Board’s conclusion that Ratcliffs conduct disqualified her for unemployment benefits, we rejected Ratcliffs argument that “she did not intend to deceive Target but was only doing what she thought would best inform Target of her relevant work experience within the limits of the available space on the application.” Id. at 596 (¶3). The circuit court had reversed the Board’s denial of Ratcliffs benefits, finding that she had offered a “plausible explanation” for omitting her prior employment at Walmart, Id. at 597-98 (¶14). In reversing the circuit court, we stated that the “plausible explanation” was “an improper focus of the court’s attention” and that the relevance of the applicant’s immediately previous work experience was for the employer to determine. Id.

¶12. Here, Nicholson did not understand the application questions about workers’ compensation to be related to her emergency-room visit and injury from several years previously. Her testimony at the hearing supports that she understood filing a workers’ compensation claim to involve receiving a paycheck substitute for inability to come to work, and that she did not understand her employer’s payment for the emergency-room visit to be within the concept of workers’ compensation. This misunderstanding falls short of willful and wanton misconduct that would disqualify her from receiving unemployment-insurance benefits.

¶ 13. While Bedford Care has a legitimate interest in ascertaining the physical ability of prospective CNAs to perform their jobs, Nicholson’s conduct in providing an inaccurate answer on her application must have been willfully and wantonly against Bedford Care’s interests in order to disqualify her from receiving unemployment benefits. Violation of company policy can warrant employment termination without, at the same time, constituting “misconduct” for purposes of disqualifying the employee from benefits. Miss. Emp’t Sec. Comm’n v. Woods, 938 So.2d 359, 365 (¶ 12) (Miss. Ct. App. 2006) (claimant’s failure to contact employer for five months while on medical leave, in violation of company policy, did not constitute misconduct). Even if Nicholson’s inaccurate answers on her application warranted her dismissal as a violation of company policy, they do not rise to the level of “willful” or “wanton” so as to warrant disqualification of unemployment-insurance benefits. We therefore affirm the circuit court’s reversal of the Board.

CONCLUSION

¶ 14. We agree with the circuit court that substantial evidence was not presented below to support that Nicholson acted in such willful or wanton disregard of her employer’s interest that disqualification of unemployment benefits is warranted. We therefore affirm the circuit court’s reversal of the Board’s denial of benefits.

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

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

      . "EMSH is a ‘state psychiatric hospital and institution,’ established in 1882.” Ivy v. E. Miss. State Hosp., 191 So.3d 120, 121 n.1 (Miss. 2016) (quoting Miss. Code Ann. § 41-17-3 (Rev. 2013)).

      . At that time, the agency was known by its former name, the Mississippi Employment Security Commission.


source: Caselaw Access Project

author: IRVING, P.J.,

license: Public Domain

text:
    TRIANGLE CONSTRUCTION CO., INC., Appellant v. FOUCHE AND ASSOCIATES, INC., Appellee
    NO. 2015-CA-01585-COA
    Court of Appeals of Mississippi.
    05/09/2017

      ATTORNEY FOR APPELLANT: MACY DERALD HANSON
    ATTORNEY FOR APPELLEE: CECIL MAISON HEIDELBERG.
   IRVING, P.J.,

FOR THE COURT:

¶ 1. Triangle Construction Company (Triangle) filed suit in the Circuit Court of Rankin County against East Madison Water Association (EMWA) and Fouche and Associates (Fouche). In the suit, Triangle alleged that it had entered into a contract with EMWA that had been breached by both EMWA and Fouche, the designated engineer in the contract. It further alleged, based upon several theories, that it was entitled to recover damages from Fouche. Both Fouche and EMWA filed separate motions for summary judgment. The record does not inform us as to the status of EMWA’s motion. However, the circuit court granted Fouche’s motion and entered judgment accordingly pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure. Triangle now appeals, arguing that there existed genuine issues of material fact regarding: .

(1) whether Fouche, as the designing engineer of the water-installation project at issue in this lawsuit, breached the tort-based duties that it owed to Triangle, the contractor; to design and manage the project in a reasonable and prudent manner; (2) whether Fouche had entered into the terms of the Specifications for Water Distribution System Addition 2009 contract either as a signatory or through its conduct, as an implied[-]in-fact contract; (3) whether Fouche was the responsible party for obtaining easements for this project, on behalf of [EMWA]; and (4) whether an accord-and-satisfaction agreement had been reached between Triangle and Fouche related to the claims pleaded by Triangle against Fouche.

Finding no genuine issue of material fact, we affirm.

FACTS

¶2. Triangle won a bid offered by EMWA for a construction project to build a water system in Madison and Leake Counties. On February 9, 2010, Triangle and EMWA entered into the “Specifications for Water Distribution System Addition 2009” agreement, which incorporates many contractual documents as part of the “Contract” between Triangle and'EMWA that is now at the center .of -this dispute. Triangle argues on appeal.that Fouche, the project’s engineer, was. also a party to the Contract; however, Fouche disagrees.

¶ 3. Triangle asserts that while' it performed its obligations "satisfactorily under the Contract’s terms, EMWA and Fouche did not. Specifically, Triangle argues" that EMWA and Fouche 'did not obtain' ' easements iñ a timely mamier, as they 'had agreed to do in the Contract. Triangle further argues that EMWA and' Foueh'e prematurely and negligently issued a notice instructing Triangle to .proceed ■ with its work (“Notice to Proceed”) far before the easements necessary to continue that work had been acquired. Triangle maintains 'that these failures resulted in delays, as “Triangle could not perform its contractually obligated work” in “significant areas of the [pjroject.” Furthermore,. Triangle asserts that, even after the appropriate easements had finally, been attained, neither EMWA nor Fouche gave Triangle notice that it could continue its work, resulting in more unnecessary delays.

¶4. Triangle also argues that Fouche elected to expand the size and scope of the project “long after-the [p]roject had been designed, sealed by [Fouche], and long after the Notice to Proceed ... had been issued to Triangle.” Triahgle asserts that, as a result, EMWA and -Fouche “made repeated oral promises to Triangle that [they] would execute a ‘Summary Change Order’ that would fairly compensate Triangle for the greatly-expanded scope of work that it was commanded to .perform”;' however, Triangle maintains that it never received such an order. :

¶5. Triangle contends that, upon ultimate completion of the project, EMWA sent Triangle a check marked “Final Payment,” but the check did not compensate Triangle for its increased construction costs as a result of the delays or for the extracontractual project expansion. Triangle concedes that it cashed the check, but argues that it repeatedly asserted to EMWA—-including in a letter sent to Fouche—that it did not consider EMWA’s “final payment” to be final and that it would continue seeking the remainder of what it was owed.

116. Triangle’s lawsuit against both EMWA and Fouche, as codefendants, alleged breach of contract, unjust enrichment or quantum meruit, breach of the covenant of good faith and fair dealing, and negligence. As stated, the circuit court granted Fouche’s motion for summary judgment, leading to this appeal.

¶7. Additional facts, as necessary, will be discussed throughout the opinion.

DISCUSSION

¶ 8. Rule 56(c) of the Mississippi Rules of Civil Procedure provides that a motion for summary judgment shall be granted if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). “We review the grant or denial of a motion for summary judgment de novo, viewing the evidence ‘in the light most favorable to the party against whom the motion has been made.’ ” Karpinsky v. Am. Nat’l Ins., 109 So.3d 84, 88 (¶9) (Miss. 2013) (quoting Pratt v. Gulfport-Biloxi Reg’l Airport Auth., 97 So.3d 68, 71 (¶5) (Miss. 2012)). “However, to survive summary judgment, the party opposing the motion may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing there is a genuine issue for trial.” Huynh v. Phillips, 95 So.3d 1259, 1262 (¶ 6) (Miss. 2012) (citation and internal quotation marks omitted). “Summary judgment is appropriate where a non-moving party who will bear the burden of proof at trial does not establish the existence of an essential element to his case.” Gorman-Rupp Co. v. Hall, 908 So.2d 749, 757 (¶25) (Miss. 2005) (citation omitted).

¶9. For clarity, we will first address whether Triangle’s negotiation of EMWA’s check marked “final payment” operated as an accord and satisfaction of its claims against EMWA and Fouche; next, we will address Triangle’s contract claims, including both Fouche’s status as a party to the Contract and whether Fouche was contractually obligated to acquire the easements; finally, we will address Triangle’s claims with respect to whether Fouche breached any duties in tort that it may have owed to Triangle.

1. Accord and Satisfaction

¶ 10. Triangle maintains that there are genuine issues of material fact regarding whether it reached an accord-and-satisfaction agreement with EMWA and Fouche, such that summary judgment should not have been granted.

¶ 11. Mississippi law requires satisfaction of four elements for an accord and satisfaction to exist:

(1) something of value must be offered “in full satisfaction of a demand”; (2) the offer must be “accompanied by acts and declarations [that] amount to a condition that if the thing is accepted, it is accepted in satisfaction”; (3) “the party offered the thing of value” must “understand that if he takes it, he takes subject to such conditions”; and (4) the party offered the item must “actually ... accept the item.

Stewart v. Bridge Props., LLC, 62 So.3d 979, 986-87 (¶ 18) (Miss. Ct. App. 2010) (quoting Waggoner v. Williamson, 8 So.3d 147, 156 (¶ 18) (Miss. 2009)).

¶ 12. In Dix v. Trigger Contractors, Inc., 337 So.2d 694, 696-97 (Miss. 1976), the Mississippi Supreme Court held that an accord and satisfaction existed where the debtor gave a creditor a check labeled “Final Payment” for less than the full amount owed to the creditor, and the creditor cashed the check but struck through the word “final” and inserted the word “part” in its place. The court held that the creditor accepted the payment notwithstanding his strikethrough of the word “final,” and stated, “[t]hat a creditor protests against receiving less than the full amount of his claim, but, nevertheless, accepts it, is of no consequence[.]” Id. at 697. A creditor is “duty-bound to either accept the ... check ... as conditioned or refuse to accept it,” and “[t]he cashing of the ... check, conditioned by the debtor as ‘Final Payment,’ constituted an accord and satisfaction.” Id.

¶ 13. Here, Triangle maintains that it did not accept EMWA’s “Final Payment,” because it repeatedly told EMWA that its acceptance of the check did not waive its claim for further payment. The record includes both the check from EMWA for $129,090.07 marked “Final Payment,” and a letter from Triangle’s attorney to Fouche, in which Triangle asserts that $129,090.07 is insufficient payment “for all the work that Triangle performed on this job,” and that “Triangle does not waive, in any way, its contractual claims to additional funds under the terms of the bid contract.” However, Mississippi law is clear that, despite whatever contentions a party may make to the contrary, cashing a check marked “final payment” constitutes an accord-and-satisfaction agreement, which precludes that party from bringing future claims for additional payment.

¶ 14. Without speaking to Triangle’s claim against EMWA, we find that Triangle’s claim against Fouche is likely barred as an accord-and-satisfaction agreement. Although the check marked “Final Payment” was specifically provided by EMWA and did not include Fouche’s name anywhere on the check, Triangle argues repeatedly on appeal that Fouche acted as EMWA’s representative or agent, and that Fouche directly controlled the management of the construction project on behalf of EMWA. Further, the very letter written by Triangle asserting that it would continue to seek payment, despite cashing the “final payment” check, was written to Fouche, not EMWA. Triangle has centered much of its argument upon the contention that Fouche acted as EMWA’s agent. However, with respect to its argument regarding accord and satisfaction, it argues that EMWA and Fouche are separate entities. We refuse to allow Triangle to have it both ways. It cannot now argue that Fouche and EMWA are separate entities solely for the sake of its accord-and-satisfaction argument. Thus, we hold that Triangle’s claims against Fouche are barred pursuant to the doctrine of accord and satisfaction. This fact, notwithstanding, we address the remainder of Triangle’s claims against Fouche.

2. Issues in Contract

If 15. Triangle maintains that genuine issues of material fact exist as to whether Fouche owed a contractual duty to Triangle—either expressly or through a contract implied in fact—to obtain the easements on behalf of EMWA.

a. .Whether Fouche was an express ■, parly to the Contract

¶ 16. Triangle maintains that Fouche was a party to the Contract, either expressly or implied in fact from Fouche’s conduct throughout the duration of the coñstruction project. Fouche disagrees. “A de novo standard of review1 is applied to questions of contract construction.” Epperson v. SOUTHBank, 93 So.3d 10, 16 (¶ 16) (Miss. 2012) (citation omitted). When presented with a contractual dispute in the context of summary judgment, the'reviewing court need not go through the traditional analysis of contract construction. Id. at 17. (¶ 20). Rather, the court

should determine only whether the contract is ambiguous. Questions of contract construction and ambiguity are questions of law that are committed to the court rather than questions of fact committed to the fact finder. If the reviewing Court finds the terms of the contract to be ambiguous or subject to more than one interpretation, the case must be submitted to the trier of fact, and summary judgment is not appropriate.

Id. (internal citation and quotation marks omitted). Although Triangle does not assert in its brief that the Contract was ambiguous, the parties dispute whether Fouche was a party to the Contract. Thus, we will analyze the Contract to determine whether it is ambiguous with respect to Fouche’s role therein.

¶ 17. As stated, Triangle asserts that Fouche was a party to the Contract, despite the fact that Fouche did not actually sign the agreement. Triangle’s argument is premised on the fact that Fouche’s company’s seal was affixed to the ‘ Contract’s cover and Fouche was designated as the project’s engineer in the Contract’s terms. Triangle points to Section 3.01 of the Contract, which provides that Fouche “is to act as [EMWA’s] representative, assume all duties and responsibilities, and have the rights and authority assigned to [Fouche] in the Contract. Documents in connection with the completion of the Work in accordance with the Contract Documents.” Triangle maintains that, as EMWA’s representative, Fouche was liable for failing to obtain the easements in a timely manner, pursuant to Section 4.01 of the Contract requiring EMWA—as the project-owner— to “obtain in a timely manner and pay” for easements necessary for completing the project. Finally, Triangle references Section 12.03 of the Contract, which provides:

If [EMWA], [Fouche], or other contractors or utility owners performing other work for [EMWA] as contemplated by Article 7, or anyone for whom [EMWA] is responsible, delays, disrupts, or interferes with the performance or progress of the Work, then Contractor shall be entitled to an equitable adjustment in the Contract Price or the Contract Times, or both.

¶ 18. Fouche disagrees and argues that it is not a party to the Contract. First, Fouche references Section 9.09(A) of the Contract, which provides:

Neither [Fouche’s] authority or responsibility under this Article 9 or under any other provision of the Contract Documents nor any decision made by [Fouche] in good faith either to exercise or not exercise such authority or responsibility or the undertaking, exercise, or performance of any authority or responsibility by [Fouche] shall create, impose, or give rise' to any duty in contract, tort, or otherwise owed by [Fouche] to [Triangle] ....

Fouche further argues that it is not an agent of EMWA, and its role as EMWA’s representative is limited to only those duties and responsibilities “assigned to [Fouche] in the Contract Documents in connection with the completion of the Work in accordance with the Contract Documents.” Fouche maintains that the Contract expressly limits Fouche’s involvement and that, while it may be EMWA’s representative in title, it holds, no duty in contract or tort to Triangle.

¶ 19. We agree with Fouche that it is not an express party to the Contract. We note that the specific portion of the Contract in dispute—the “Specifications for Water Distribution System Addition 2009” agreement—is entitled “AGREEMENT BETWEEN OWNER AND CONTRACTOR FOR CONSTRUCTION CONTRACT (STIPULATED PRICE) FUNDING AGENCY EDITION.” The title makes no mention of Fouche, and expressly provides that this Contract is between the Owner (EMWA) and the Contractor (Triangle). Fouche’s role in the project is not even mentioned until Section 3.01. While Triangle relies on this language to argue that Fouche is EMWA’s agent and is therefore responsible for any shortcomings committed by EMWA, Triangle overlooks the critical language limiting Fouche’s role only to that specified by the Contract. Section 4.01 provides that EMWA is responsible for obtaining the easements; ■ Section 9.09(A) of the Contract provides that no provision of the Contract or behavior by Fouche will “create, impose, or give rise to any duty in contract, tort, or otherwise owed by [Fouche] to [Triangle].” These provisions explicitly limit Fouche’s duties and do not include the responsibility of obtaining easements. Triangle acquiesced'to this language when it signed the contract. Thus, we find no. merit to this argument.

b. Whether Fouche and Triangle had a contract, implied in fad, for Fouche to procure the easements

¶ 20. Triangle alternatively contends that if Fotiche is not ah express party to the Contract, Fouche had a' contractual duty to obtain the easements, implied in fact from the parties’ behavior throughout the duration of the construction project. “Á contract that arises from the conduct of the parties, also known as a contract implied in fact, has the same legal effect as an express contract.” Franklin v. Franklin ex rel. Phillips, 858 So.2d 110, 120 (¶ 34) (Miss. 2003) (citations omitted). A contract implied in fact—also referred to as a quasi-contract—“is an obligation created by law, in the absence of an agreement, when and because the acts of the parties or others have placed in the possession of one person money under circumstances that in equity and good conscience he ought not to retain and which in justice and fairness belong to another.” Id. at 120-21 (¶ 35). “[A]ny conduct of one party from which the other party may draw-the inference of a promise is effective as- such and the conduct of the parties is viewed as a reasonable man would to determine the existence or not of the contract implied in fact.” Id. at 121 (¶35) (citation omitted). “To collect under an unjust enrichment or quasi-contract theory, the claimant must show ‘there is no legal contract but ... the person sought to be. charged is in possession of money or property which in good conscience and justice he should not retain, but should deliver to another.’ ” Id. (citation omitted).

¶21. Triangle maintains that its only communication regarding the project was with Fouche, and that Fouche controlled when and where Triangle worked. Triangle also contends that, “despite provisions in the [Cjontract to the contrary, Fouche ... controlled the day-to-day ground operations, including giving Triangle instructions on where to lay pipe as well as to where and what private easements had been obtained.” In response, Fouche again references Section 4.01 of the Contract, which unambiguously provides that EMWA—not Fouche—had the duty to procure the easements for the project, and that Triangle may not now offer parol evidence suggesting otherwise. Further, Fouche provides evidence that EMWA accepted responsibility for obtaining the easements. In a letter dated December 27, 2010, from Fouche to Triangle, Fouche’s president stated, “The Owner has informed us that they have obtained sufficient private and/or public easements for you to complete this project.” The Owner, as specified by the Contract, was EMWA. Finally, Fouche presented evidence that EMWA’s president, Arthur Tate, stated in a deposition, “No, [Fouche] didn’t get no [sic] easements. We get the—East Madison Water Association is the one who gets easements. Engineers don’t do easements. We do easements.”

¶ 22. Given these facts, it is evident that EMWA was responsible for procuring the easements for the project. Again, we find no merit to this issue.

3. Issues in Tort

¶ 23. Triangle maintains that genuine issues of material fact exist as to whether Fouche breached its duty to Triangle to act in a reasonable and prudent manner in its professional capacity. Triangle argues that Fouche breached this duty in the following ways: (1) in negligently designing the project; (2) in extraeontrac-tually expanding Triangle’s scope of work long after the written Contract had been executed by the parties; (3) in issuing a notice to Triangle to proceed with the project months before obtaining the necessary easements; and (4) in failing to provide notice to Triangle until early 2013 that permits were obtained on October 4, 2010. In response, Fouche contends that it did not owe any duty to Triangle at all, referencing Section 9.09(A) of the Contract. Further, Fouche maintains that even if it owed a duty and consequently breached that duty, there is no evidence that the alleged breach proximately caused Triangle’s damages.

¶24, Both Triangle and Fouche cite Magnolia Construction Co. v. Miss. Gulf South Engineers, Inc., 518 So.2d 1194, 1202 (Miss. 1988), in support of their arguments regarding whether Fouche owed any duty in tort to Triangle. In Magnolia, our supreme court reversed a grant of summary judgment where it found that a genuine issue of material fact existed with respect to a project-engineer’s duties to the project-contractor who was engaged in construction as part of an agreement with the project-owner. Id. at 1197. Triangle points to the portion of the Magnolia opinion providing that certain design professionals, such as project-engineers, still owe a duty to project-contractors to exercise ordinary professional skill and diligence— even where the engineer and contractor are not in a direct contractual relationship—because of the inherent nature of the engineer’s contract with the project-owner:

[W]here the engineer does not have a direct contractual relationship with the contractor, the legal duty which forms the basis of the contractor’s negligence claim still must arise from a contract-based obligation of the engineer to the [party with whom the contractor has actually contracted and for whom the engineer works]. Indeed, Mississippi law imposes on design professionals (architects/engineers) the duty to exercise ordinary professional skill and diligence. Further, Mississippi law allows third parties to rely on a design professional’s contractual obligation to the owner.

Id at 1202 (internal citation and quotation marks omitted). In response, Fouche references the portion of the opinion providing that any duty a project-engineer owes to a project-contractor as part of its contractual duty to the project-owner must be determined by the contract between the engineer and the owner:

The trial judge was correct in trying to determine the intent of the parties to the contract from the four corners of the document. Early on, this Court stated the principle that in construing a contract, the instrument as a whole will be looked to and its meaning determined for the entire agreement as written in order to ascertain the intentions of the parties from the contract.

Id. at 1203-04 (citations and internal quotation marks omitted).

¶25. Magnolia is distinguishable from this case for several reasons: First, the Magnolia court directly referenced the contract between the project-owner and project-engineer in its decision, whereas we cannot do so because our record does not include any separate contractual agreement between the EMWA, the project-owner, and Fouche, the project-engineer; the extent of any contractual dealings between Triangle and Fouche appears to be limited to the terms of the Contract, in which Fouche’s duties are expressly limited. Id. Further, our supreme court referenced several pieces of evidence in Magnolia—including affidavits from the project-contractor’s president and a crew member and a deposition from the project-engineer’s staff—-which gave rise to a genuine issue of material fact regarding whether the project-engineer had actually owed and breached a duty to the project-contractor. Id. In contrast, here, there is insufficient evidence to suggest that Fouche actually owed any extracontractual duties in tort to Triangle, as Triangle suggests. Not only do the terms of the Contract explicitly provide otherwise, as evidenced by Section 9.09(A), quoted above, but we also have the deposition of Triangle’s president, Robert King, in which King indicates that Fouche was not even responsible for the duties that Triangle now argues it was. When asked specifically about being given the directive to continue work after the necessary easements had been obtained, King answered that Triangle only knew it was able to proceed “[a]t the direction of the engineer and Mr. Meyer[].” However, this statement is directly contradicted later in King’s deposition, where he explains the function of a notice to proceed:

The directive to be able to go out and do the work in an easement, whether it’s public or private, to direct me to continue doing work, whether that be from Mr. Meyer, as an agent of [Fouche],. or whether it was an actual member of [Fouche], you know, or [EMWA]. Somebody would direct me to go and say, [“] You can continue your work here in this area.[”] Outside of that, you know, that’s the only direction that we have to be able to go to work.

The only other evidence provided by Triangle suggesting that Fouche owed extra-contractual duties to Triangle includes an affidavit by Triangle’s president, Robert King, in which King maintained that Triangle’s communications were exclusively with Fouche, not EMWA. However, this evidence is insufficient to show that Fouche owed a duty to Triangle outside of those expressly delineated within the Contract, particularly in light of the Contract’s direct language limiting Fouche’s duties to Triangle. In light of these facts, we cannot say that Fouche owed any extracontractual duties to Triangle regarding this project.

¶ 26. As previously stated, Triangle has the burden of establishing that there is a genuine issue of material fact regarding an essential element of its case. Given the evidence before us, we cannot find that there is a genuine issue of material fact with respect to the issues put forth by Triangle, and that the circuit court erred in granting summary judgment. Thus, we find that Fouche owed no duty to Triangle. We find that this is dispositive of any issue regarding breach or proximate cause and therefore decline to consider these issues.

¶ 27. In summary, we find that the circuit court did not err in granting Fouche’s motion for summary judgment. Although the circuit court offered no reason for its decision, our de novo analysis of these issues on appeal leads us to conclude that (1) Triangle’s act of cashing EMWA’s check marked “final payment” constituted an accord-and-satisfaction agreement and subsequently barred Triangle from bringing claims against Fouche, and (2) Triangle failed to show any genuine issue of material fact with respect to its other claims. Accordingly, we affirm.

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

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

      . Documents in the record vary with respect to the spelling of “Fouche"—in some instances, it is spelled "Fouché,” while in other instances, it is spelled "Fouche,” For consistency, we use “Fouche”'throughout this opinion.

      . For clarity, “Contract,” as the word is used throughout this opinion, will refer to all contract documents encompassed within the "Specifications for Water Distribution System Addition 2009” agreement between EMWA and Triangle for the construction project of the water system, including "General Conditions (pages GC-1 to GC-57, inclusive),” which we reference several times throughout this opinion.

      . Section 4.01' is located on page GC-12, which is expressly deemed part of the "Con.tract Documents.” Thus, we include it in discussion of the "Contract,” as a whole.

      . ‘Section 12.03 is located on page GC-41, which is expressly deemed part of the “Contract Documénts." Thus, we include it in discussion of the "Contract,” as a whole.

      .Section 9.09(A) is located on page GC-33, which is expressly deemed part of the “Contract Documents.” Thus, we include it in discussion of the “Contract,” as a whole.

      . Ronald Meyer was the project inspector on behalf of Fouche.


author: WILSON, J., JAMES, J.,

text:
    Dillon WILLIAMS a/k/a Dillon D. Williams a/k/a Dillon Dewayne Williams a/k/a Dillion Williams a/k/a Dillion Dewayne Williams, Appellant v. STATE of Mississippi, Appellee.
    No. 2014-CA-01170-COA.
    Court of Appeals of Mississippi.
    March 22, 2016.
    Rehearing Denied Aug. 9, 2016.

      David G. Hill, Tiffany Leigh Kilpatrick, Oxford, attorneys for appellant.
    Office of the Attorney General by Jeffrey A, Klingfuss, attorney for appellee.
   WILSON, J.,

for the Court:

¶ 1. The circuit court denied Dillon Williams’s third motion for post-conviction relief (PCR) as procedurally barred pursuant to Mississippi Code Annotated sections 99-39-21(1) and 99-39-23(6) (Rev.2015).' Williams argues that his claim is excepted from the procedural bars of the Uniform Post-Conviction Collateral Relief Act because his sentence is “illegal.” See Rowland v. State, 42 So.3d 503, 507-08 (¶¶ 12-15) (Miss.2010). We conclude that Williams’s sentence is legal. Therefore, his claim is procedurally barred, and we affirm the circuit court’s denial of his PCR motion..

FACTS AND PROCEDURAL HISTORY

¶ 2. On the morning'of January 26, 2010, Williams knocked on the door of Pasqueal-een Crum’s home in Byhalia. Crum was ninety-one years old at the time. When Crum opened the door, Williams pushed his way inside and hit her in the head, knocking her to the ground. After Crum “laid on the floor and made, like [she] was dead,” Williams and an, accomplice moved to other rooms of the house looking -for things to steal. Crum then crawled to the porch and tried to use her cell phone to call her granddaughter, but Williams found her there. He dragged her back inside the house by her neck and beat her severely. He knocked out her teeth and inflicted numerous injuries. Crum suffered a fractured jaw, a broken eye socket, and a fractured shoulder. She has permanent nerve damage to her' face, can no longer use her left arm, and has difficulty walking. At Williams’s sentencing hearing, Crum and relatives testified that the attack changed Crum’s life and that she has not recovered from it emotionally or physically. •

¶ 3. The grand jury returned a three-count indictment against Williams. Count I charged burglary of the home of Crum’s soil Johnny, who lives down the road from Crum. Williams apparently burglarized Johnny’s home just before Crum’s home. Count II charged burglary of - Crum’s home under circumstances likely to terrorize Crum, punishable by imprisonment for a minimum of ten years and a maximum of twenty-five years. Count II further charged that Williams committed the offense against a person over the age of sixty-five, thereby triggering the enhanced punishment provisions of Mississippi Code Annotated sections 99-19-351 and 99-19-357 (Rev.2015), which authorize the court to impose a sentence of twice the term of imprisonment otherwise authorized by law. Count III of the indictment charged Williams with aggravated assault of Crum, punishable by imprisonment for a maximum term of twenty years. Count III also charged Crum under sections 99-19-351 and 99-19-357.

¶4. On November 10, 2010, Williams pled guilty to counts II and III, and count I was retired to the files. Before accepting Williams’s plea, the court advised him of his right to a trial by jury, and Williams confirmed that he understood that he was waiving that right. The court also questioned Williams as follows:

Court: [Bjurglary of a dwelling, home invasion carries with it 25 years and if that penalty is enhanced, of course it could be 50 years and with your aggravated assault it carries with it 20 years and if enhanced it could carry with it 40 years; you understand that?
Williams: Yes, sir.

With respect to the aggravated assault charge, the court questioned Williams as follows:

Court: [I]n Count III [the State] would have to prove that [you] ... did unlawfully, willfully, feloniously, purposely and knowingly cause serious bodily injury to Pat Crumb [sic] by violently striking, punching Pat Crumb [sic] in violation of the law and against the peace and dignity of the State of Mississippi and that Pat Crumb [sic] at that time was over the age of sixty-five, did you do that?
Williams: Yes, sir.
Court: Do you know of any reason why I should not accept your plea of guilty?
Williams: No[,] sir.
Court: Are you telling me that you are pleading guilty because you are guilty and for no other reason?
Williams: Yes, sir.

The court then accepted Williams’s guilty plea and granted his attorney’s request to continue sentencing for a month so that a pre-sentence investigation report could be prepared.

¶ 5. Williams’s sentencing hearing was held on December 16, 2010. Williams, his grandmother, Crum, and three of Crum’s relatives testified. When asked if he had anything to say to Crum or her family, Williams said, “I would just like to say I’m sorry. I ask for forgiveness. I hope she gets well.” He asked the court for “mercy ... and ... one more chance.” Williams then refused to answer the assistant district attorney’s questions, seemingly only because he did not want to. Crum and her relatives testified regarding the attack and its lasting effects on her. Crum and relatives testified that she was ninety-one years old at the time of the attack.

¶ 6. The circuit judge sentenced Williams to twenty-five years’ imprisonment for burglary and twenty years’ imprisonment for aggravated assault. The judge then observed that both charges carried the possibility of an enhancement of up to twice the sentence otherwise authorized, and he applied the enhancement to the aggravated assault sentence, increasing it to forty years’ imprisonment. The judge ordered the sentences to run consecutively for a total sentence of sixty-five years’ imprisonment. Williams voiced no objection to the sentence or the procedures under which it was imposed.

¶ 7. The circuit court dismissed Williams’s first PCR motion in 2012 and dismissed his second PCR motion in 2013. Williams appealed the dismissal of the second motion, and this Court affirmed. Williams v. State, 126 So.3d 992, 999 (¶ 23) (Miss.Ct.App.2013). In the second motion, Williams alleged that his aggravated assault sentence was illegal, although on different grounds than in his present motion.

¶8. In November 2013, Williams filed his third PCR motion and alleged for the first time that his sentence is illegal because a jury was not impaneled to find that his conviction for aggravated assault was subject to a sentencing enhancement. Williams relies on Mississippi Code Annotated section 99-19-355 (Rev.2015), a somewhat unusual statute that, in relevant part, provides as follows:

Upon conviction or adjudication of guilt of a defendant where notice has been duly given that an enhanced penalty will be sought as provided in Sections 99-19-351 through 99-19-357, the court shall conduct a separate sentencing proceeding to determine the sentence.... [I]f the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose. If the defendant enters a plea of guilty and waives trial by jury for the sentencing proceeding, the sentencing proceeding shall be conducted before the trial judge sitting without a jury.

Miss.Code Ann. § 99-19-355(1). Williams argues that because he never waived a jury for his sentencing hearing, his constitutional and statutory rights to a jury trial were violated. The circuit court denied Williams’s motion, finding that it was procedurally barred as a second or successive PCR motion and because Williams’s claim could have been raised at the time of sentencing.

ANALYSIS

¶ 9. The circuit court correctly denied Williams’s PCR motion as procedurally barred for two separate reasons. First, Williams’s present claim was “capable of determination” at the time of his sentencing. Miss.Code Ann. § 99-39-21(1). Williams’s right to a sentencing jury was plainly stated in the above-quoted statute; thus, the “legal foundation” of the claim was readily available to him when he was sentenced. Id. § 99-39-21(4). Williams’s failure to raise the issue at that time precludes him from raising the issue in a PCR motion. Id. § 99-39-21(1). Second, Williams’s claim is barred because it is raised in a second or successive PCR motion. Id. § 99-39-23(6).

¶10. Williams argues that he is not subject to these procedural bars because his sentence is “illegal.” See Rowland, 42 So.3d at 507-08 (¶¶ 12-15). However, the Supreme Court has held that a “sentence is not illegal unless it exceeds the maximum statutory penalty for the crime.” Foster v. State, 148 So.3d 1012, 1016 (¶ 12) (Miss.2014) (quoting Grayer v. State, 120 So.3d 964, 969 (¶ 16) (Miss.2013)). In Foster, the defendant contended that his forty-year sentence for armed robbery was “illegal” because it exceeded his life expectancy; and, under a longstanding interpretation of the armed-robbery statute, unless the jury agrees to impose a life sentence, the judge must impose a sentence “reasonably expected to be less than life.” See id. at 1017 (¶ 14). However, the Supreme Court rejected Foster’s argument that his sentence was illegal. The Supreme Court emphasized that his “sentence did not exceed the maximum statutory penalty,” as the statute permitted any sentence “less than life but not less than three years.” Id. at 1016 (¶ 12). Thus, Foster’s claim was only that the trial court had misapplied the statute. That claim was subject to procedural bars and had been waived. The sentence itself was not “illegal.”

¶ 1Í. The same is true in this case. The maximum statutory penalty for aggravated assault on an elderly victim is forty years’ imprisonment. See Miss.Code Ann. §§ 97-3-7(2) (Supp.2016) & 99-19-857. Williams does not dispute that even if he is granted a néw sentencing hearing, he may ultimately receive the same forty-year sentence. That alone ought to show that Williams’s sentence is not “illegal” and that his argument is in reality a procedural objection to a substantively legal sentence.

¶ 12. As set out above, the transcript of Williams’s plea hearing shows that he admitted that he violently, purposefully, and willfully beat a ninety-one-year-old woman. He pled guilty to count II and count III, both of which specifically charged that he was subject to • the sentencing enhancement. The court specifically discussed the sentencing enhancement and its consequences,. and Williams confirmed that he understood. Williams never once suggested, at either his plea hearing or his sentencing hearing a month later, that the enhancement did not. apply to the conduct to which he pled guilty. The statute clearly provided that Williams could insist on a jury hearing with respect to the enhancement if he so desired, yet he never asked for a. jury. That he did not is certainly understandable given the facts of the crimes to which he pled guilty and the age of the . victim. Moreover, the statute does not prohibit a sentencing hearing before the. judge alone; it only gives the defendant, the option of a jury, which he may waive.. From the record, one cannot avoid the conclusion that Williams intended to waive a jury and intended to plead guilty to both the substantive offenses of burglary and aggravated assault and the sentencing enhancement.

¶ 13. Given the unique' procedure set out in section 99-19-355, it would have been better for the circuit judge to confirm specifically on the record that Williams did not want a sentencing jury. But this omission does not render Williams’s sentence “illegal.” The sentence itself is legal because does not “exceed! ] the maximum statutory penalty for the .crime.” Foster, 148 So.3d at 1016 (¶ 12) (quoting Grayer, 120 So.3d at 969 (¶ 16)). Williams only challenges the procedure under which his legal sentence was imposed. That claim is procedurally barred because Williams sat through his plea hearing and, a month later, his sentencing hearing without ever mentioning a sentencing jury. See Miss. Code Ann. § 99-39-21(1). It is also barred because he failed to raise the issue in either of his first two PGR motions. See id. § 99-39-23(6). Accordingly, the circuit court properly denied Williams’s third PCR motion.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF MARSHALL COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT,

GRIFFIS, P.J., BARNES, ISHEE, FAIR AND GREENLEE, JJ„ CONCUR. JAMES, J„ DISSENTS WITH' SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., IRVING, P.J., AND CARLTON, J.

JAMES, J.,

dissenting:

¶ 15. I would find that the circuit court lacked jurisdiction to enhance the sentence for the charge of aggravated assault, making the forty-year sentence illegal; therefore, I respectfully dissent.

¶ 16. Successive motions are generally barred under the Mississippi Uniform Post-Conviction Collateral Relief Act (UP-CCRA). Miss.Code Ann. § 99-9-23(6) (Rev.2015). Under section 99-39-23(6), all successive motions are barred if the prisoner has previously filed a PCR motion. Evans v. State, 75 So.3d 1119, 1120 (¶ 5) (Miss.Ct.App.2011). Because Williams’s present PCR motion is a successive -writ, this Court must look to see whether an exception to the procedural bar applies.

¶ 17. It is well established that errors affecting fundamental rights are excepted from the procedural bars of the UPCCRA. Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss.2010). Williams, however, bears the burden of proving by a preponderance of the evidence that his claims are not procedurally barred. Adams v. State, 954 So.2d 1051, 1052 (¶ 6) (Miss.Ct.App.2007). Williams alleges that his sentence for aggravated assault is illegal because the court did not have jurisdiction to impose the sentence since he never waived his right to a sentencing jury,

¶ 18. The right to be free from an illegal sentence or a sentence imposed by a court lacking jurisdiction is a fundamental right. See Ivy v. State, 731 So.2d 601, 603 (¶¶ 9-17) (Miss.1999); Kennedy v. State, 626 So.2d 103, 105 (Miss.1993). With that in mind, section 99-19-355(1) of the Mississippi Code Annotated (Rev.2015) provides in pertinent part:

If trial by jury has been waived, or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose. If the defendant enters a plea of guilty and waives trial by jury for the sentencing proceeding, the sentencing proceeding shall be conducted before the trial judge sitting without a jury,... The state and the defendant, or his counsel, or both defendant and counsel, shall be permitted to present arguments for or against any sentence sought.

Section 99-19-355 states that a sentencing proceeding should not be conducted before the court unless the defendant waives his right to have the sentencing proceeding conducted before a jury. Since the State sought to enhance Williams’s sentence due to the advanced age of the victim, section 99-19-355 applies.

¶ 19. Williams’s plea colloquy provides in part:

THE COURT: But by signing these petitions here under your oath, telling me under your oath that you have had free consultation with your lawyer, telling me under your oath that you are satisfied with what your layer has done for you, you waive or you give up that right to a trial by a jury, do you understand that, Mrs. Drake?
DRAKE: Yes, sir.
THE COURT: Do you understand that Mr. Williams?
WILLIAMS: Yes, sir.

¶ 20. Williams never waived his right to have a jury empaneled for sentencing purposes as required by statute. While Williams did waive his right to a jury for purposes of deciding guilt, he did not do the same for the purpose of being sentenced. The circuit court consequently lacked jurisdiction to impose any enhancement, rendering Williams’s sentence illegal. Accordingly, the present PCR is not procedurally barred. I, however, must point out that only Williams’s sentence for aggravated assault was enhanced. And for these reasons, I would reverse and remand this matter for a sentencing hearing to be conducted before a jury only for the aggravated assault charge, if it is not waived by Williams.

¶ 21. As such, I find that the judgment of the circuit court dismissing the PCR motion should be reversed and remanded for a sentencing hearing to be conducted before a jury for only Count III, aggravated assault.

LEE, C.J., IRVING, P.J., AND CARLTON, J., JOIN THIS OPINION.

      . The record reflects that the trial court heard plea agreements for several defendants, not just Williams, within this one hearing.


author: GRIFFIS, P.J., WILSON, J.,

text:
    ESTATE OF Rose GREER, Deceased John Oaks a/k/a John Oakes, Appellant v. Linda Greer BALL, Appellee.
    No. 2014-CA-00528-COA.
    Court of Appeals of Mississippi.
    May 3, 2016.
    Rehearing Denied Nov. 29, 2016.

      John R. Reeves, attorney for appellant.
    William D. Boerner, Joe Robert Norton IV, Brookhaven, attorneys for appellee.
    Before GRIFFIS, P.J., CARLTON and JAMES, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. John Oaks, as executor of the estate of Rose Greer, deceased, filed a declaratory-judgment action that contested a lease assignment that purported to convey Greer’s lessor rights to Linda Greer Ball upon Greer’s death. The chancellor ruled in favor of Ball and upheld the lease assignment. In this appeal, Oaks argues that the trial court erred when it found the lease assignment to be valid, and when it determined that Ball was not responsible for the payment of casualty-insurance premiums on the property. We find error and reverse, render, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 3, 2002, Greer executed a lease agreement with Jene and David Nunnery. The lease was for certain farmland located in Lincoln County, Mississippi. The Nunnerys agreed to pay Greer $600 per month. According to the lease, the term of the lease began on August 1, 2000, and was for a one-year initial term. The lease included automatic one-year renewals, with a final termination date of July 31,2025.

¶ 3. In controversy here is Section 3 of the lease agreement. It reads:

DEATH: In the event of the death of the Lessor, this lease agreement shall not terminate!];] rather the rights and obligations of Lessor shall immediately be transferred to Linda Ball, who will also have the right to receive payments hereunder.

¶ 4. On July 31, 2009, Greer executed a will that left the remainder of her estate to Oaks. The will did not mention the lease assignment to Ball. Greer died on October 6, 2010. Oaks probated the will, and he was issued letters testamentary on October 26, 2010.

¶ 5. On September 24, 2013, Oaks filed a complaint for declaratory relief against Ball. In the complaint, Oaks asked for a declaratory judgment that found Section 3 of the lease agreement to be invalid. Oaks claimed that the assignment was not valid because it was testamentary in nature and did not comply with the requirements of a testamentary document. As alternative relief, Oaks sought a declaratory judgment that, if the assignment was valid, Ball was responsible for the payment of ad valorem taxes and insurance premiums on the property.

¶ 6. On February 20, 2014, the chancellor held a hearing. No testimonial evidence was received, and the parties stipulated the documentary evidence to include Greer’s will and the lease agreement. After argument of counsel, the learned chancellor ruled that Section 3 of the lease agreement was not testamentary and the provision properly conveyed Greer’s lessor rights to Ball. The chancellor ruled that Ball was to pay the ad valorem taxes on the property, and denied Oaks’s request that Ball pay the casualty-insurance premiums on the property.

STANDARD OF REVIEW

¶ 7. An appellate court “applies a de novo standard of review to questions of law, including a motion for a declaratory judgment.” S. Carolina Ins. v. Keymon, 974 So.2d 226, 229 (¶ 9) (Miss.2008) (citation omitted).

ANALYSIS

¶8. Oaks makes a simple argument. He claims that Section 3 of the lease agreement constituted a testamentary conveyance. As a conveyance, the lease agreement was required to comply with the requirements of a testamentary document. Oaks contends the document did not comport with the testamentary requirements, which rendered the assignment invalid.

¶ 9. “A lease is both a contract and a conveyance.” K.F. Boackle, Mississippi Landlord and Tenant Law with Forms § 1.2 (2005). As a contract, a lease is freely assignable unless a provision in the lease expressly states the contrary. See Jeffery Jackson & Mary Miller, Encyclopedia of Mississippi Law § 21:33 (2015).

¶ 10. During her life, Greer was the fee-simple owner of the property and had the right to lease it to the Nunnerys. Greer was entitled to the rental proceeds and could have assigned the proceeds to a third party if she wanted. The concern here, however, is that the assignment was only effective upon Greer’s death. This Court is presented with a matter of law and must decide whether the chancellor was correct to decide that the lease-agreement provision constituted a valid assignment and not a testamentary conveyance.

¶ 11. Section 3 of the lease agreement assigns the lessor’s rights to Ball upon Greer’s death. In Buchanan v. Buchanan, 236 Miss. 751, 756, 112 So.2d 224, 227 (1959), the Mississippi Supreme Court held:

[W]hen an instrument purports to be a deed and is in the words and form of a deed and is acknowledged as such, it should be construed to be testamentary in character and inoperative as a deed of conveyance when, and only when, it affirmatively and clearly appears from the language of the instrument itself, giving due consideration to all its provisions, that it was the intention of the person signing it that the instrument itself would have no effect until his death.

The supreme court further held:

Where an instrument, though in the form of a deed, contains its maker’s provision that it makes no present conveyance of an interest in land or otherwise directs that the interest to be conveyed vests in the grantee only upon the death of the grantor, such an instrument is regarded as testamentary in character and is enforceable only if made in compliance with our statute of wills.

Ford v. Hegwood, 485 So.2d 1044, 1045 (Miss.1986).

¶ 12. In Ford, the owners of a parcel of real property created a warranty deed that included the following provision: “[W]e, the undersigned J.O. HEGWOOD and wife, NANNIE MAY HEGWOOD, do hereby sell, eonvey[,] and warrant to our son, CARROLL DENNIS HEGWOOD, and HIS OWN BLOOD HEIRS, at OUR DEATH, the following described land[.]” Id. The supreme court ruled that the deed, dated June 20, 1951, conveyed the property to Carroll as of the date of the deed and left J.O. and Nannie May a life estate in the property. Id. at 1046. Under this interpretation, the supreme court concluded that the language did not indicate a testamentary intent by the Hegwoods, but rather demonstrated an immediate conveyance. Id. at 1047,

¶ 13. In both Buchanan and Ford, the courts upheld warranty deeds that purported to convey land only upon the deaths of the grantors by finding that the grantors retained life estates while contemporaneously conveying the land to the grantees. In contrast, this case implicates a lease agreement rather than a warranty deed. There is no analogous Mississippi case examining the validity of such an assignment in a lease agreement. Thus, this Court looks to the Buchanan and Ford decisions for guidance.

¶ 14. Both the Buchanan and Ford courts determined that the warranty-deed conveyances in each respective case illustrated the intent of the landowners to presently convey the land as of the execution of the warranty deeds, leaving a life estate to the themselves. Under this reasoning, the logical inference is that both the grantor and the grantee possess simultaneous, but distinct, interests. The key distinction between the warranty deeds in Buchanan and Ford and the lease agreement here, however, is that Ball and Greer could not contemporaneously possess the same rights afforded under the lease agreement.

¶ 15. During her life, Greer was the fee-simple owner of the property, and the lessor by virtue of the lease agreement. While Greer was alive, Ball had absolutely no interest in the property or the lease agreement whatsoever. Ball’s interest in the lease agreement was conditioned upon Greer’s death. Following the framework illustrated in Buchanan and Ford, this clearly indicated Greer’s intent that the assignment “would have no effect until [her] death.” Buchanan, 236 Miss, at 756, 112 So.2d at 227. Therefore, we conclude that Section 3 of the lease agreement acted as a testamentary document and failed to validly assign Greer’s lessor rights to Ball unless it complied with the necessary testamentary requirements. Accordingly, this Court must determine whether the document was a valid testamentary instrument. . ■

¶ 16. Mississippi law provides that “[e]very person eighteen (18) years of age or older, being of sound and disposing mind, shall have power, by last will and testament, or codicil in writing, to devise all the estate, right, title and interest in possession, reversion, or remainder[.]” While Greer objectively met the age requirement, there was no indication of whether Greer was of “sound and disposing mind” or that the document represented a will.

¶17. -Further,.'for a valid testamentary .instrument, the document must “be signed by the testator or testatrix, or by some other person -in his or her presence and by his or her express direction. Moreover, if not wholly written and subscribed by himself or herself, it shall be attested by two (2) or more credible witnesses” in her presence. Miss.Code Ann. § 91-5-1 (Rev.2013). Both Greer and the Nunnerys signed the lease agreement, arguably meeting the statutory guidelines. But for the instrument to be a valid will, the Nunnerys must meet the requirements of attesting witnesses:

First, the testator must request them to attest the will; second, they must-see the testator sign the will; third,, they must know that the document is the testator’s last will and testament; and finally, they must satisfy themselves that the testator is of sound and. disposing mind and capable of making a will.

In re Estate of Holmes, 101 So.3d 1150, 1152 (¶ 10) (Miss.2012), There is no indication in the-record that the Nunnerys met any of these requirements. As such, we conclude as a matter of law that the lease agreement did not constitute a valid will.

¶ 18. For these reasons, we reverse the chancellor’s judgment and render a judgment that Section 3 was testamentary in nature and the lease agreement failed to meet the statutory requirements for a valid will. Therefore, Greer did not properly convey her lessor rights to Ball. Because the assignment is invalid, the question of whether Ball must maintain insurance on the property is moot. We remand this case for the chancellor to determine whether the estate was entitled to repayment of the lease proceeds from Ball and for further proceedings consistent with this opinion.

¶ 19. THE JUDGMENT OF THE LINCOLN COUNTY CHANCERY COURT IS REVERSED, RENDERED, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

BARNES, ISHEE, CARLTON AND JAMES, JJ., CONCUR. WILSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., IRVING, P.J., AND FAIR, J. GREENLEE, J., NOT PARTICIPATING.

WILSON, J.,

dissenting:

¶ 20. I am persuaded that the unusual provision in the lease between Rose Greer and the Nunnerys is enforceable under Ford v. Hegwood, 485 So.2d 1044 (Miss. 1986). Therefore, I respectfully dissent.

¶ 21. As the majority explains, Ford did not involve a lease. It involved a “Warranty Deed” by which a husband and wife attempted to “sell, convey, and warrant” land to their son “at OUR DEATH,” i.e., at the death of the husband and wife. Id. at 1045. Ford addressed the question whether such an instrument, though in the form of a deed, must be treated as testamentary. The opinion describes “two complementary lines of cases” on the subject. Id. One line of cases, exemplified by Tapley v. McManus, 175 Miss. 849, 854-55, 168 So. 51, 52 (1936), holds that when an instrument “makes no present conveyance of an interest in land or otherwise directs that the interest to be conveyed vests in the grantee only upon the death of the grantor, [it] is regarded as testamentary in character and is enforceable only if made in compliance with our statute of wills.” Ford, 485 So.2d at 1045. The other line of cases stands for the proposition that if a deed “conveys a future interest in land which vests in the grantee effective upon delivery ..., though reserving in the grantor a life estate, the effect of which is to postpone only the grantee’s right of possession or occupancy,” it will be treated as a deed and enforced even if it does not comply with the statute of wills. Id. (citations omitted) (citing Buchanan v. Buchanan, 236 Miss. 751, 756-57, 112 So.2d 224, 226-27 (1959)). The Court thought that “rules of law emanating from these cases [were] clear,.[so] no useful purpose would be served by a detailed consideration of same.” Id. at 1046. Instead, the Court simply reported that it had “reviewed the language of the instrument under construction in each such case” (a total of fourteen were cited) and that the instrument in Ford fell somewhere between the two lines. Id. Thus, the Court’s decision would “of necessity expand the rule of one line an inch or two toward the other.” Id. Ford has not been cited on this issue in the thirty years since, so presumably the two lines remain wherever Ford left them.

¶ 22. The Court explained that a decision regarding which line of cases to expand had to be made

... against the backdrop of one of the grand purposes of our law: to enable persons to achieve legitimate ends which without law would be impossible of achievement. Our law facilitates the realization of dreams, modest or grand, private or charitable. In this regard law vests certain powers in each of us. We are given to believe that, without further authorization, we may with effect exercise those powers, so long as we conform to certain general enabling rules.
When doubtful cases arise it is incumbent upon us that we build our adjudication upon the cornerstone of this grand purpose of our law. Where as here individuals seek to accomplish ends authorized by our law, we are obliged to take upon ourselves a positive attitude that the law may serve, not thwart, the legitimate aspirations of those individuals. Put otherwise, the rules of strict construction sometimes applied when enforcement of penal rules is at issue give way in the present context to an appropriate degree of liberality.
One end our ancestors thought a necessary incident of freedom, and for which they long fought, was the right to own property and necessarily the right to dispose of one’s property as one sees fit. Our law today empowers persons to accomplish these ends—to be sure, with notable restrictions, none of which affect today’s adjudication.

Id. Thus, if possible, we should uphold an instrument by which an individual attempted to dispose of her property as she sees fit. To that end, we must construe such an instrument with “an appropriate degree of liberality” in a way that renders it valid rather than invalid, and we must resolve “doubtful cases” in favor of finding the instrument valid.

¶23. Applying these principles, the Court upheld and enforced the warranty deed at issue in that case. The Court reasoned,

The words of the instrument communicate to the reader a dominant intention on the part of the Hegwoods that at their death their property belong to their son and his heirs. This dominant intention being one accomplishment of which our law allows through the facility of a deed of conveyance, we have no reasonable alternative but to enforce it.

Id. at 1047. The first sentence simply stated the obvious. The Hegwoods’ intent was clear. The question was whether the instrument expressing their intent was invalid because it did not comply with the statute of wills, as is generally required when a person wants to convey property to another at his or her death. On that issue, the Court seemed to say that because “our law allows” such a transaction to be accomplished through a deed with a reservation of a life estate, the Court was compelled to construe the deed in that way and enforce it. See id. Thus, the Court interpreted the deed as conveying “fee simple title” upon execution “subject only to a life estate.” Id. The Court did so even though the plain language of the deed, which was recorded only after Mr. Hegwood died eleven years later, stated that the conveyance would occur only at the Hegwoods’ death. See id. at 1045, 1047.

¶24. The Court summarized the overarching rule on this issue as follows:

[W]e regard it as a sound rule of construction to resolve doubts in favor of treating the instrument as a deed rather than a will. Put otherwise, an instrument such as that under consideration here appearing in the form of a deed should be adjudicated testamentary in character and subject to the statute of wills only where such affirmatively and clearly appears from the language of the instrument.

Id. at 1047 (emphasis added). Buchanan, supra, had similarly stated:

[W]hen an instrument-purports to be a deed and is in the words5 and form of a deed and is acknowledged as such, it should be construed to be testamentary in character and inoperative as a deed of conveyance when, and only when, it affirmatively. and clearly appears from the language of the instrument itself, giving due consideration to all its-provisions, tha/b it was the intention of the person signing it that the instrument itself would have no effect until his death.

Buchman, 236 Miss. at 756, 112 So.2d at 227 (emphasis added).

¶25. This case involves a lease, not a deed. ■ And while Ford is the closest precedent, the’fact that the case involves a lease is relevant to our analysis. To begin with, it is- undisputed that “the instrument itself’—the lease—-was intended to and did take effect when it was executed. Thus, if the relevant “instrument” is the lease, this po’int alone seems to be a sufficient reason not to regard the challenged provision as testamentary.

¶26. But even if our analysis, must focus on the specific language that Oaks challenges, it should be enforced as written. It is important to keep in mind that the language at issue is only part of one section of a' twenty-five year lease agreement between the Nunnerys and Greer. The Nunnerys agreed to this language and, for all we know, may have requested it or even insisted on it. Particularly given the length of the lease and the Nunner-ys’ use1 of the property to operate their dairy business, the Nunnerys may have assigned some value to a contractual right to deal with -a specifically identified person—rather than some unknown heir or heirs—in the event of Greer’s death. Indeed, this lawsuit seems to illustrate the potential value of the provision to the Nun-nerys. Oaks sued both Ball and the Nun-nerys and sought a declaration that the entire lease had terminated. Specifically, Oaks asked the Court to declare that Section 3 was invalid in its entirety and, therefore, that the lease terminated on Greer’s death. The Nunnerys filed a counterclaim, and the Nunnerys and Oaks eventually agreed to dismiss their claims against one another based on a stipulation, signed by counsel on behalf of all parties, “that the lease at issue in this litigation is valid, binding, and enforceable.”

¶ 27. Regardless of why this language was inserted in the lease agreement, the larger point is that it was part of a valid agreement between Greer and the Nun-nerys. Therefore, Greer could not have revoked the language unilaterally or without the Nunnerys’ consent. For this reason, I am unable to say that it “affirmatively and clearly appears from the language of the instrument itself, giving due consideration to all its provisions, that it was the intention of the person[s] signing it that the instrument itself would have no effect until [Greer’s] death.” Buchanan, 236 Miss. at 756, 112 So.2d at 227 (emphasis added). The Nunnerys had an immediate right to insist that this agreed-upon provision remain a part of their lease agreement without change.

¶ 28. Í read Ford to say that we should refuse to enforce a voluntary assignment of property rights only if it “affirmatively arid clearly appears from the language of the instrument” that it was intended only as a testamentary gift and served no other purpose. Ford, 485 So.2d at 1047. This does not describe the assignment in this case, which directly affects other parties (the Nunnerys) and requires Ball to pay property taxes in addition to receiving rental payments. Based on Ford’s instruction that even “doubtful cases” should be resolved in favor of finding the instrument valid, I conclude that the challenged language is simply one part of a valid lease, not an invalid testamentary gift hidden in a lease.

¶ 29. Although certain language in Ford and Buchanan can be read to support the majority opinion, I am persuaded that the lease provision at issue in this case is enforceable under the principles articulated and applied in those decisions. Accordingly, I respectfully dissent.

LEE, C.J., IRVING, P.J., AND FAIR, J., JOIN THIS OPINION.

      : Under the lease, the lessor is obligated to pay taxes on the property. The lease also provides that the Nunnerys must seek the - lessor’s preapproval of “any significant variation from the [property’s] intended use” as a dairy business,

      . Ball has' not argued on appeal that Oaks stipulated to the validity of the assignment.


author: MOORE, Judge.

text:
    David Michael KLEINATLAND v. Kimberly Mason KLEINATLAND.
    2150116.
    Court of Civil Appeals of Alabama.
    May 13, 2016.
    Rehearing Denied July 15, 2016.
    Certiorari Denied Sept. 16, 2016 Alabama Supreme Court 1151110.

      W. Donald Bolton, Jr., and John E. Bolton of W. Donald Bolton, Jr., P.C., Foley, for appellant.
    Scott W. Hunter, Daphne; and Harry B. Still III, Bay Minette, for appellee.
   MOORE, Judge.

David Michael Kleinatland (“the husband”) appeals from a judgment entered by the Baldwin Circuit Court (“the trial court”) divorcing him from Kimberly Mason Kleinatland (“the wife”). We affirm.

Procedural History

On March 5, 2014, the wife filed a complaint seeking a divorce from the husband. On April 7, 2014, the husband answered the complaint. On April 7, 2014, the trial court entered an order requiring, among other things, that the husband pay the wife’s automobile-insurance payment while the action was pending. After a trial, the trial court entered a judgment on August 6, 2015, divorcing the parties and, among other things, requiring the husband to pay the wife “an amount equal to one-half of the amount in his [Retirement Systems of Alabama] account as of the date of [the parties’] separation,” requiring the husband to pay the wife “$20,000 ... representing her one-half of the equity in the marital home,” and requiring the husband to pay “the [wife’s] car insurance [that was] due during the pendency of the divorce.” On August 12, 2015, the husband filed a postjudgment motion; that motion was denied on October 16, 2015. On October 28,2015, the husband filed his notice of appeal.

Discussion

I.

On appeal, the husband first argues that the trial court erred in awarding the wife one-half the value of his retirement account with the Employees’ Retirement System of Alabama (“the RSA”). The husband does not contest that the retirement account is marital property. He argues that the RSA retirement account cannot be equitably divided under Ala.Code 1975, § 36-27-28, which provides that benefits accrued or accruing to a person who is a member of the RSA are “exempt from any state or municipal tax and exempt from levy and sale, garnishment, attachment or any other process whatsoever and shall be unassignable.... ”

In Sockwell v. Sockwell, 822 So.2d 1219 (Ala.Civ.App.2001), this court addressed the application of Ala.Code 1975, § 16-25-23, a statute that is similar to § 36-27-28, but which addresses benefits accrued under the Teachers’ Retirement System of Alabama (“the TRS”). Section 16-25-23 provides that benefits accrued or accruing to a person who is a member of the TRS are similarly “exempt from any state or municipal tax and exempt from levy and sale, garnishment, attachment or any other process whatsoever, and shall be unassignable....” In Sockwell, this court, in an opinion authored by Judge Pittman in which the four other judges concurred in the result, held that, although the retirement account at issue could be considered in dividing the parties’ property, the trial court could not require the account to be liquidated.

The trial court in this case acknowledged § 36-27-28 by stating that the husband’s account with the RSA “cannot be split.” To comply with § 36-27-28, the trial court did not order that the retirement account be liquidated; instead, it ordered that the retirement account remain intact and that the husband pay the wife an amount equal to her equitable share of the account. When a component of the parties’ marital property cannot be actually divided, a trial court can order the spouse in whose name the property is vested to pay the other spouse the value of the latter’s equitable share of that marital property as alimony in gross. See Hager v. Hager, 293 Ala. 47, 54, 299 So.2d 743, 749 (1974) (“[A]n award in gross may also represent a division of the fruits of the marriage where liquidation of a couple’s jointly owned assets is not practicable.”). However, a trial court cannot “do indirectly what [a statute] prohibits it from doing directly.” Thompson v. Thompson, 532 So.2d 1027, 1028 (Ala.Civ.App.1988). In order for such an award to be equitable, the paying spouse should have the ability to pay the alimony in gross from other resources without undue hardship. See McCarron v. McCarron, 168 So.3d 68, 79-82 (Ala.Civ.App.2014).

On appeal, the husband generally asserts that the judgment violates § 36-27-28 because he “will be forced to withdraw a portion of his retirement proceeds from the account in order to satisfy the assignment by the trial court.” However, the husband does not provide the court with any citation to any evidence in the record to support that assertion. See Rule 28(a)(7), Ala. R.App. P. The husband’s appellate brief does not inform this court of the dollar value of the retirement account on the date of the parties’- separation so that the amount of money awarded to the wife can be determined. The husband also has not demonstrated that he cannot pay the alimony-in-gross award through some other means. Without those necessary details, this court cannot assume that the trial court, by awarding the wife alimony in gross, was indirectly ordering the husband to liquidate his retirement account. Because the record does not reflect that the trial court violated § 36-27-28, we conclude that the husband’s argument on this point is without merit.

II.

The husband next argues that the trial court erred in calculating the amount of equity in the marital home. The evidence indicated that the marital home was subject to an outstanding mortgage in the amount of $99,075.49. At the trial, the husband testified that the marital home was worth between $115,000 and $120,000. The wife, however, testified that the marital home was worth $145,000. The trial court apparently determined that the marital home was worth $139,075.49, an amount between the values testified to by the parties. In Edwards v. Edwards, 26 So.3d 1254 (AIa.Civ.App.2009) (overruled on other grounds by Enzor v. Enzor, 98 So.3d 15 (Ala.Civ.App.2011)), this court approved of the trial court’s setting a valuation of real estate “at an amount between the value each party had ascribed to each parcel,” stating that “the values set by the trial court were in line with the general valuation testimony given by the parties.” 26 So.3d at 1260 and 1261. Similarly, in the present case, the valuation of the marital home set by the trial court was “in line with the general valuation testimony given by the parties.” Id. at 1261. Therefore, we conclude that the husband’s argument on this point is without merit.

III.

Finally, the husband argues that the trial court erred in ordering him to pay the wife’s automobile-insurance payments during the divorce proceedings. The evidence shows that the husband paid the insurance until October 2014. At that point, the wife had ceased 'sending the husband the bills although they continued- to accrue. .The wife testified that she paid the insurance at a rate of $95 per month for 10 months. The husband argues that it would be inequitable to compel him to reimburse the wife $950 because she failed to forward to him the insurance bills.

If the order had conditioned payment on receipt of the bills from the wife, then the husband clearly would not have to reimburse the wife. See Chunn v. Chunn, 183 So.3d 985 (Ala.Civ.App.2015) (reversing a finding of contempt against the husband for his failure to pay orthodontic expenses when the judgment at issue stated that, if the wife failed to notify the husband of the expenses, he was no longer obligated to pay a portion of the bill). However, in this case, the pendente lite order unconditionally required the husband to pay the automobile-insurance bills. The wife should have continued to send the husband the bills in order to apprise him of the amount due. On the other hand, the husband does not point to any evidence indicating that he attempted to elicit the amount of the wife’s insurance bills in order to pay them. At any rate, the husband has not explained with any legal reasoning how the wife’s omission excuses him from payment. The trial court ordered the husband to pay the automobile insurance as a form of pendente lite alimony. See Duerr v. Duerr, 104 So.3d 229 (Ala.Civ.App.2012). The husband argues only general principles regarding property division that do not apply in this context.

Inapplicable general propositions are not supporting authority, and- an appellate court has no duty to perform a litigant’s legal research. Legal Systems, Inc. v. Hoover, 619 So.2d 930 (Ala.Civ.App.1993); Lockett v. A.L. Sandlin Lumber Co., 588 So.2d 889 (Ala.Civ.App.1991); and Moats v. Moats, 585 So.2d 1386 (Ala.Civ.App.1991). Similarly, appellate courts do not, ‘based on undeli-neated propositions, create legal arguments for the appellant.’ McLemore v. Fleming, 604 So.2d 353, 353 (Ala.1992). This court will address only those issues properly presented .and for which supporting authority has been cited. Simonton v. Carroll, 512 So.2d 1384 (Ala.Civ.App.1987).” .

Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996). “When an appellant fails to properly argue an issue, that'issue is waived and will not be considered.” Asam, 686 So.2d at 1224. Because' the husband has failed to formulate an argument with supporting authority on this issue, we cannot reverse the trial court’s judgment on this point.

Conclusion

Based on the foregoing, we . affirm the trial court’s judgment. The wife’s request for the award of attorney’s fees on appeal is denied.

AFFIRMED.

THOMPSON, P.J., and PITTMAN, THOMAS, and DONALDSON, JJ.,' concur.