author: IRVING, P.J., WILSON, J.,

text:
    Aleshia DIETZ, Appellant v. SOUTH MISSISSIPPI REGIONAL CENTER and Mississippi State Agencies Workers’ Compensation Trust, Appellees
    NO. 2016-WC-00396-COA
    Court of Appeals of Mississippi.
    04/11/2017
    Rehearing Denied August 22, 2017
    Certiorari Denied December 7, 2017

      ATTORNEYS FOR APPELLANT: JAMES KENNETH WETZEL, GARNER JAMES WETZEL
    ATTORNEY FOR APPELLEES: JEFFREY STEPHEN MOFFETT
   IRVING, P.J.,

FOR THE COURT:

¶ 1. On June 30, 2015, an administrative judge (AJ) ruled in favor of Aleshia Dietz, finding that she was not time-barred from asserting her claim to continue receiving medical benefits from her employer, South Mississippi Regional Center (Employer), because Employer had previously paid her wages in lieu of compensation, thereby tolling the two-year statute of limitations. On March 1, 2016, the Workers’ Compensation Commission (Commission) reversed the AJ’s ruling, finding that Dietz’s claim was time-barred because she was not paid wages in lieu of compensation and, therefore, the statute was not tolled; thus, her failure to file a claim within two years precluded her from recovering additional benefits. Dietz now appeals, arguing that she did not file a fonp'al claim within two years of her injury because she relied on assurances from Mississippi State Agencies Workers’ Compensation Trust (Carrier) that it would “take care, of everything.” Dietz argues that the Employer/Camer should be estopped from asserting the statute of limitations as a defense.

¶ 2. We reverse and render and remand to the Commission for further proceedings.

FACTS

¶ 3. In May 2011, Dietz began working as a nurse for Employer. She worked twelve-hour shifts on a “rotating schedule.”. Dietz’s shifts involved caring for twenty to twenty-four patients, which required some moderate physical activity. On January 10, 2012, Dietz was involved in a ear accident while running an errand for work. Dietz immediately reported the accident to her supervisor. Later that evening, Dietz reported that she was feeling some pain in her neck and back. She filled out the requisite paperwork and- saw a nurse practitioner the following day. In April 2012, Dietz began seeing . Dr. Eric Wolfson,- who recommended that Dietz visit a chiropractor three to four times a week; Dietz began doing so on August 23, 2012. Dietz maintains that, post-injury, she continued to work for Employer in. a “modified, light ¡duty position.” Because Dietz continued working, Employer/Carrier, did not pay her workers’ compensation indemnity benefits; however, Employer/Carrier did authorize and pay for Dietz to receive medical treatments and attend medical appointments pertaining to her injury.

¶ 4. In March 2012, Dietz first met with Alice Posey, the adjuster for Carrier. Dietz asserts that she expressed concerns to Po-sey about how to proceed with her claim because this was her first experience with workers’ compensation; however, Posey assured Dietz “not to worry because she would take care of everything.” When Dietz asked Posey whether she should hire an attorney, Posey told her there was no need because she was “going to take care of it all.” Posey authorized payment of all of Dietz’s medical expenses. Furthermore, Posey even assigned a nurse case manager to Dietz’s claim, who scheduled and attended all of Dietz’s injury-related medical appointments.

¶ 5. Dietz maintains that she ultimately missed a substantial amount of work as a result of these medical treatments and appointments; at trial, Dietz testified that she often took full days off for medical appointments, and sometimes took off a day or more at a time when she had epidurals to her neck performed. Dietz further contended that she missed work as a result of migraine headaches brought on by her injury. Dietz filled out various leave-of-absence forms for the days that she missed work. Dietz conceded at trial that she “obviously ... kept terrible records” during this time because she was unsure what to write on the forms; for example, sometimes she would write “comp.” or “finia” on the forms, while other times she marked “medical” as the reason for taking leave or just did not specify at all. Ultimately, however, when asked how many days she had off during the calendar years 2012, 2013, and 2014, Dietz replied, “There’s been so many I couldn’t guess.”

¶ 6. Dietz testified that despite all of these absences, her salary never decreased. Dietz speculated that she must have run out of her allotted leave time at some point; however, Employer’s human-resources manager testified that, to her knowledge, Dietz never exceeded her leave time. Dietz testified that Employer/Carrier paid for her medical appointments without issue for two years from the date of Dietz’s injury, and that at no point prior to January 13, 2014, did they represent that they planned to cease payment of Dietz’s medical treatment. Dietz testified that on January 13, 2014, she attended an appointment with Dr. Wolfson, who “recommended additional cervical epidural injections, physical therapy again for three to four weeks and [a] follow-up in four to six weeks.” Dietz testified that her Carrier-assigned •nurse case manager attended this appointment, yet never indicated that Carrier was about to cease payment of Dietz’s medical treatment.

¶7. In mid-January, shortly after her January 13, 2014 appointment with Dr. Wolfson and more than two years after Dietz initially sustained her injury, Dietz received a letter from Employer/Carrier in which Employer/Carrier declared that it would no longer pay for Dietz’s injury-related medical treatment because Dietz had failed to file a formal claim within the applicable two-year statute of limitations. Dietz maintains that she was shocked by this letter, as she had received no indication that Employer/Carrier was planning to suspend her benefits. Dietz immediately retained legal counsel and filed a petition to controvert on January 16, 2014.

¶ 8. On June 30,2014, an AJ conducted a hearing wherein Dietz testified that she was led to believe that she did not need to file a formal claim because of Posey’s assurances that it was all being taken care of. The AJ ultimately held for Dietz, finding that Employer/Carrier’s “voluntary payment of salary in lieu of compensation or its payment of medical benefits within two years after the date of injury waived the [necessity for] filing of a formal claim within that period.” The AJ also reasoned that Carrier had assured Dietz that she did not need to take action to enforce her right to benefits, and that Dietz relied on those assurances to her detriment. The AJ held that Employer/Carrier was therefore estopped from asserting the statute of limitations as a defense.

¶ 9. Feeling aggrieved, Employer/Carrier appealed the AJ’s order to the Commission; On March 1, 2016, the Commission reversed the AJ’s order, finding that Employer/Carrier’s payment of Dietz’s medical benefits did not constitute wages in lieu of compensation; thus, the two-year statute of limitations was not tolled and Dietz was barred from continuing to receive benefits. Additionally, the Commission rejected the AJ’s ruling that payment of medical benefits in the two years after the date of injury waived the necessity for filing a formal claim. Dietz filed a timely notice of appeal.

DISCUSSION

¶ 10. This Court’s review in workers’ compensation cases “is limited to determining whether the Commission’s decision was supported by substantial evidence, was arbitrary and capricious, was beyond the scope or power of the agency to make, or violated .,. constitutional or statutory rights.” Pulliam v. Miss. State Hudspeth Reg’l Ctr., 147 So.3d 864, 868 (¶ 16) (Miss. Ct. App. 2014) (internal, citations and quotations omitted). “Our supreme court has also stated .the Commission will only be reversed ‘for an error .of law or an unsupportable finding of fact.’ ” Smith v. Johnston Tombigbee Furniture Mfg. Co., 43 So.3d 1159, 1164 (¶ 15) (Miss. C.t. App. 2010). “.When the Commission’s decision is supported by substantial evidence, then it must be upheld. This remains true even though we might have reached a different conclusion were we the trier of fact.” Parker v. Ashley Furniture Indus., 164 So.3d 1081, 1083-84 (¶ 11) (Miss. Ct. App. 2015) (citations omitted). However, issues of law, including matters involving. statutes of limitations, will be reviewed de novo. Ladner v. Zachry Constr., 130 So.3d 1085, 1088 (¶ 9) (Miss. 2014). Additionally, “when the agency has misapprehended a controlling legal principle, no deference is due, and our review is dé novo.” ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 45 (¶ 10) (Miss. 1999).

¶ 11. As stated, Dietz argued before the AJ — and 'the AJ agreed — that the two-year statute of limitations .had been tolled because she was paid wages in lieu of compensation, based on the fact that she continued to receive her entire salary for the two years following her injury and her paycheck never varied despite missing a “substantial” amount of work to receive’ medical treatment pertaining to that injury. Dietz also argued — and. the AJ agreed — that the, Employer/Carrier should be estopped from asserting the two-year statute of limitations as a bar because she had relied on the Employer/Carrier’s repeated assurances and representations that it would take care of everything.

¶ 12. Employer/Carrier argued — and the Commission agreed — that Dietz was not paid wages in lieu of compensation, based on the fact that Dietz enjoyed a flexible work schedule, which could have allowed her to schedule and attend medical appointments on days when she was not' working. The Commission also rejected the finding of the AJ that the Employer/Carrier was estopped from asserting the - two-year statute-of-limitations bar, finding instead “that the overwhelming weight' of [Deitz’s] testimony does not establish that the adjuster’s -statements misled or prevented [Dietz] from taking action on her claim.” In'support of its conclusion, the Commission then' inserted a footnote, which states: “To the contrary, [Dietz’s] counsel signed and dated the Petition to Controvert on the two-year anniversary of the injury date; it was just not filed with the Commission prior to the expiration of the two-year period.”

¶ 13. Dietz’s notice of appeal states, in relevant part: “Diet [sic], feeling aggrieved by the [djecision of the Commission, dated March 1, 2016, desires to appeal said [decision and [o]rder of the Mississippi Workers’ Compensation Commission to the Mississippi Supreme Court.” In her appeal, Dietz states the issue as-follows: “The Commission erred as a matter of law and fact in reversing the administrative ... judge as. same is arbitrary and capricious and not supported by substantial evidence and contrary to -law and should be reversed and remanded.”

¶ 14. Dietz argues that she did not file a formal ‘ claim within two years after her injury because she relied on multiple reassurances from'Employer/Carrier’s adjuster that it would “take care of everything,” and -that thé Commission’s finding to the contrary is not supported by substantial evidence. We agree. As stated, in addressing this argument, the Commission found “that the overwhelming weight of [Deitz’s] testimony does not establish that the adjuster’s statements misled or prevented [Dietz] from taking action on her claim”

¶ 15. We readily acknowledge that the Commission is the fact-finder, and as stated, our review is limited to a determination Of whether the Commission’s finding is supported by substantial evidence. So we look at the evidence. First, Dietz’s testimony that-she was repeatedly assured by the Employer/Carrier adjuster Posey that Employer/Carrier would take care of everything -and that she did not need an attorney is not contradicted. Employer/ Carrier did ■ not offer Posey to rebut Dietz’s testimony. Second, Posey assigned a case manager to Dietz, and the case manager made, and attended, all of Dietz’s medical appointments. Third, on January 13, 2014, three days after the expiration of the two-year statutory period for filing a petition to controvert, Employer/Carrier paid for medical expenses incurred by-Dietz for her work related-injury.

¶ 16. We turn to the Commission’s finding. What is the testimony, given by Dietz, that the Commission found to show overwhelmingly that Dietz did not rely on the assurances and representations of the Employer/Carrier that it would take care of everything? We quote the relevant portion of the Commission’s order:

Lastly, the Order of Administrative Judge makes mention of Claimant’s testimony regarding her interaction with the Adjuster for the Employer/Carrier. A closer look at Claimant’s testimony reveals that in early March of 2012, the adjuster told Claimant that “she would take care” of compensation and medical benefits owed to Claimant. ... Claimant further testified that she received similar assurances throughout the- time of her medical care. However, Claimant testified during cross-examination that after her doctor’s appointment on December 19, 2013, there were no assur-. anees made by the Carrier nor discussions concerning her need for legal counsel in the claim. ,. .The Commission finds that the overwhelming weight of Claimant’s testimony does not establish that the adjuster’s statements misled or prevented Claimant from taking action on her claim.

The Commission, however, overlooked the rest of Dietz’s testimony that she gave during direct examination, all of which was uncontradicted:

Q. Now, your conversation with Ms. Posey leading up — you went through 2012, 2013, You were dealing directly with your adjuster?
A. Yes, sir.
Q. You had no attorney—
A. No.
Q. What was she telling you through [the] 2012,2013 period leading up to January 2014 in reference to whether you needed an attorney, whether or not — what she was going to do for you, et cetera?
A.' She continued to tell me to just not worry about anything. She was going to take care of it all. That, you know, I didn’t need to get — I didn’t need to worry about anything. That it was all going to be taken care of. Not to, you know, get any attorney, not to worry about anything.
■ Q. Okay. It- looks like the last — January 13, 2014, you went [in to see] Dr. Wolfson. That would have been right at two years— ,
A. . Uh-huh.
Q, —two years and a couple of days—
A. Yes, sir.'
Q. —three days. Workman’s comp paid for that visit? .
A. Yes, sir.
Q. And at that visit, Dr.. Wolfson recommended additional. cervical epidural injections, physical .therapy again for three to-four weeks and follow-up in four to six weeks?
A. Yes, sir.
Q, Is that at the point where'Ms. Po-sey — you had conversations with Ms. Posey regarding' that treatment?
A. . I didn’t talk to Ms. Posey. I had a caseworker, and she was talking— she was taking care of everything. But still, at that point, Í was told everything was going to be taken care of. ■
Q. And what happened at that juncture when that treatment was recommended on the last visit in January?
A. I received a letter that I was — I was not going to get — I was hot going to be covered anymore.
Q. And was that at the point that you retained my services—
A. Yes, sir.
* sfc * ⅜
Q. Leading all the way up to that point, was there any indication at all — did they indicate to you at all that they were not going to cover your medical treatment?
A. No, sir, not at all.'
Q. Had you relieved [sic] upon their assertions that they were going to take care of everything?
A. Absolutely.
Q. And did you rely upon their promises even up through January 13th that they were taking care of everything?
A. Yes.
Q. Did it come as a surprise to you?
A. Yeah, I was shocked.

¶ 17. It is clear to us that the Commission did not consider the totality of Deitz’s testimony when it concluded that Dietz was not misled by Posey and that its conclusion was heavily and unduly influenced by the date on the petition to controvert. As proof that Dietz was not misled and knew that she needed to file a petition to controvert by or before Jamjary 10, 2014, the Commission stated the following in a footnote:

It is interesting to note that [Dietz’s] counsel signed and dated the Petition to Controvert on January 10, 2014, which is two years from the injury date. This is also prior to the date the Carrier informed [Dietz] that her medical treatment was being denied based upon the two-year limitations period. Apparently [Dietz] realized the need to take action within two years of the injury, but the Petition was mailed to the Commission, and it was not received and filed until January 16, 2014, which is more than two years after the injury date.

The reason the date of the petition is not the smoking gun that the Commission believed it was is this: Dietz testified without contradiction that she did not consult a lawyer until after her doctor’s appointment that occurred on January 13, 2014. The dissent correctly points out that there is an employment • contract signed, and dated October 8, 2012, by Dietz. We make two observations regarding this fact. First, and of upmost significance, is the fact that the Commission did not mention the contract in its order while discussing the estoppel issue or its reasoning for concluding that Dietz was not misled by Posey. The dissent concedes as much. If indeed the Commission thought that the date of the contract, signed sixteen months before the expiration of the two-year limitations period, was significant to its factual determination of whether Dietz relied upon Posey’s repeated representations that Dietz did not need a lawyer, the Commission’s failure to discuss this matter is extremely perplexing. Second, inasmuch as the Commission scrutinized the date of the petition to controvert, it can hardly be reasonably argued that the Commission would not have seen the contract, for it would have been the best evidence to prove that Dietz was being represented by a lawyer, if indeed she was, and not relying on Posey’s representations. What is more logical is that Dietz may have initially consulted a lawyer but abandoned that pursuit based on Posey’s repeated representations that she did not need one. Viewing the matter from this perspective, it is understandable why the Commission did not discuss the contract. Having initially signed a contract and later abandoning it is not inconsistent with Dietz’s testimony that she was repeatedly told that she did not need a lawyer. Apparently, this discernible explanation was not lost on the Commission and is the most logical reason why the Commission did not discuss the contract. The dissent relies on evidence that the Commission apparently did not deem relevant to its decision. We find no reason as to why we should stray from the evidence addressed by the Commission in its order, for its order is the best evidence of what it considered.

¶ 18. Even if Dietz had consulted a lawyer prior to January 13, 2014, it does not prove that she had been continuously represented by that, lawyer up to and including January 10, 2014, which is the date of the petition to controvert. Why the petition was dated January 10, 2014, and why the contract was dated October 8, 2012, pose questions, the answers to which the attorney for Employer/Carrier did not explore during any of the witnesses’ testimony. However, the lack of an answer or conjecture as to what the answer might be cannot constitute substantial evidence that Dietz was not duped by Posey into believing that Dietz did not need to file a petition to controvert and that Dietz did not rely on the assurances and representations made by Posey. Even if Dietz initially contacted or hired a lawyer, it does not prove that she did not abandon that endeavor based on the repeated representations made by Posey. After all, the record is clear that Dietz is not a lawyer, and there is nothing in the record to indicate that she was familiar with workers’ compensation law and, therefore, knew of the two-year limitations period for filing a claim. We also note that the payment by Employer/Carrier of Dietz’s January 13, 2014 medical bill, an expenditure occurring three days beyond the expiration of the two-year limitations period, is substantial and persuasive evidence supporting Dietz’s assertion that she was told by Posey that Employer/Carrier would take care of everything, for it tends to show that Employer/Carrier was doing what it said it would do before deciding otherwise.

¶ 19. Mississippi law defines the elements of equitable estoppel as: “(1) belief and reliance on some representation; (2) a change of position as a result thereof; and (3) detriment or prejudice caused by the change of position.” B.C. Rogers Poultry, Inc. v. Wedgeworth, 911 So.2d 483, 492 (¶ 32) (Miss. 2005). This Court has held the following with respect to'proving equitable estoppel:

Equitable estoppel requires that one party by its conduct, words, or even silence, make a .representation or concealment of material facts. That representation must be with actual or imputed knowledge of the facts and with the intent that the other party rely on the representation because of the party’s ignorance of the truth. Finally, damage must proximately result.

Brock v. Hankins Lumber Co., 786 So.2d 1064, 1067 (¶ 11) (Miss. Ct. App. 2000). Equitable estoppel should not “be applied so liberally as to allow a plaintiff to assert estoppel where no inequitable behavior is present.” McCrary v. City of Biloxi, 757 So.2d 978, 981 (¶ 13) (Miss. 2000).

¶ 20. The Mississippi Supreme Court held in McCrary, 757 So.2d at 978 (¶ 1), that an employer was estopped from asserting the statute of limitations as a defense where the claimant “was misled by the [employer’s] representation that it would file his workers’ compensation claim for him.” In McCrary, the employer failed to file the notice required by Mississippi Code Annotated section 71-3-37(4); the court found that while this factor, alone, did not prevent, the employer from asserting the statute-of-limitations defense, it was a factor to be considered in conjunction with the fact that the employer told the claimant it would file his claim and that it engaged in settlement negotiations for a substantial period of time. Id. at 982 (¶ 18). The court found that ■ the claimant had “relied on the [employer’s] representations to his detriment” and held for the claimant. Id.

¶21. Mississippi case law is unclear ’regarding what constitutes “inequitable behavior.” In several instances, this Court and the Mississippi Supreme Court have found that an employer and carrier were estopped from asserting the statute of limitations where the claimant was led to believe that he had no need to file a formal claim. For example, in Martin v. L.&A. Contracting Co., 249 Miss. 441, 162 So.2d 870, 873 (1964), the court found that “[Claimant’s conduct, in refraining from filing a claim' as long as he was receiving compensation, was reasonable. He had no occasion to make a claim under the Mississippi [Workers’ Compensation A]ct sooner. ... Voluntary payment of compensation under these, circumstances constituted a waiver of formal claim, and rendered claimant’s delay reasonable.” Additionally, the supreme court has remarked that an employer’s continuous reassurances to a claimant that the employer was taking care of filing a formal workers’ compensation claim for the claimant served as an “additional consideration” in finding that the claimant’s case was not barred by the statute of limitations. Prentice v. Schindler Elevator Co., 13 So.3d 1258, 1261 (¶ 8) (Miss. 2009).

¶22. In summary, as informed by the record before us, we find a lack of substantial evidence to support the factual findings of the Commission. A contract, dated October 8, 2012,' more than sixteen months prior to the expiration of the two-year limitations period, is not substantial evidence that Dietz was being represented by a lawyer, especially since the contract was not filed with the Commission until January 16, 2014. The more likely explanation for the time gap between the date of the contract and the date of the filing of the contract is that Dietz had abandoned her representation by the lawyer based on the representations made by Posey and that she went back, to see him after she learned that Employer/Carrier was not going to keep its word. While the dissent says we are re-weighing the evidence, it does not explain how we re-weigh evidence that was never weighed by the Commission in its order. Dietz was clear in her testimony that, because of the representation made to her by Posey, she had no reason to believe that she needed to file a formal claim. Especially damning to Employer/Carrier is the fact that Employer/Carrier actually assigned a nurse case manager to schedule and attend each of Dietz’s medical appointments pertaining to her work-related injury. The nurse case manager never told Dietz — not even on January 13, 2014; which was Dietz’s last medical appointment — that her benefits would cease to continue if she did not formally file a claim, and it is particularly noteworthy that the daté of the last medical appointment was two years and three days past the date of Dietz’s injury. Yet Employer/Carrier paid for this medical appointment. Thus, we find that Employer/Carrier is now estopped from arguing the statute of limitations as a defense.

¶ 23. The judgment of the Commission is reversed and rendered, as we find that Dietz’s claim is not barred by the two-year statute of limitations. Therefore, we remand this case to the Commission for further proceedings.

¶ 24. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS REVERSED AND RENDERED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

LEE, C.J., GREENLEE AND WESTBROOKS, JJ., CONCUR. BARNES AND FAIR, JJ., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. WILSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J., ISHEE AND CARLTON, JJ.; FAIR, J., JOINS IN PART.

WILSON, J.,

DISSENTING:

¶ 25. The Commission’s decision is supported by substantial evidence and should be affirmed. Accordingly, I respectfully dissent.

¶ 26. Dietz argues that the employer/carrier are equitably estopped from raising the statute of limitations as a defense because the carrier’s adjuster repeatedly assured Dietz that she would “take care of everything,” and the carrier continued sending a nurse ease manager to accompany Dietz to doctor’s appointments and continued paying her medical bills. Relevant to this issue, Dietz testified, and her medical records show, that she went to an appointment with Dr. Wolfson on January 13, 2014,- and Dr. Wolfson recommended additional treatment. Dietz then testified as follows:

Q. And what happened at that juncture when that treatment was recommended on the last visit in January?
A. I received a letter that I was — I was not going to get — J was not going to be covered any more,
Q,. And 'was that at the point that you retained'my services—
A. Yes, sir.
Q. —to represent you, and I filed the necessary paperwork.
A. Yes, sir.

Hearing Tr. 21. In her brief on appeal, Dietz repeats this claim, stating:

Dietz testified that on her last appointment, which the workers’ comp carrier paid for, with Dr. Wolfson on January 13, 2014, two years and a couple of days after her injury, Dr. Wolfson recommended another injection. Following that appointment she was sent a letter stating that she would no longer be covered by worker[s’] comp. (TR. p. 21). After receiving that letter she immediately hired her current attorney, (TR p. 21).

Appellant’s Br, 7 (emphasis added).

¶ 27. The Commission directly addressed this argument in its order, stating as follows: . •

The Commission finds that the overwhelming weight of [Dietz’s] testimony does not establish that the adjuster’s statements misled or prevented [Dietz] from, taking action on her claim. To the contrary, [Dietz’s] counsel signed and dated the Petition to Controvert on the two-year anniversary of the injury date; it was just not filed with,the Commission prior to the expiration of the two-year period. ... [T]he Commission finds that the facts.... do not support.a finding .., that the statements of the adjuster induced [Dietz]-to take no action.

Dietz v. S. MS Reg’l Ctr., MWCC No. 14 00424-M-5350, 2016 WL 928034, at *4 & n.2 (Miss. Work. Comp. Comm’n Mar. 1, 2016). The Commission’s order also stated:

It is interesting to note that [Dietz’s] counsel signed and dated the Petition to Controvert on January 10, 2014, which is two years from the injury date. This is also prior to the date the Carrier informed [Dietz] that her medical treatment was being denied based upon the two-year limitations period. Apparently [Dietz] realized the need to take action within two years of the injury, but the Petition was mailed to the Commission, and it was not received and filed until January 16, 2014, which is more than two years after the injury date.

Id. at *1 n.1 (emphasis added).

¶28. Thus, the Commission obviously .did not find credible Dietz’s testimony that the carrier’s assurances induced her to take no action on her claim. The Commission simply found that Dietz’s testimony did not add up. Dietz’s petition to controvert was signed and dated by her attorney three days prior her visit to Dr. Wolfson, which was before she claimed that she received notice of termination of her medical benefits.

¶ 29. The lead opinion states that “Dietz testified without contradiction that she did not consult a lawyer until after her doctor’s appointment that occurred on January 13, 2014.” Ante at (¶ 17). Respectfully, I disagree. Although not mentioned in the Commission’s order, Dietz’s attorney also filed a representation agreement that both Dietz and the attorney signed on October 8, 2012 — fifteen months before Dietz claims she first consulted with a lawyer. Thus, Dietz was, at best, mistaken by a matter of fifteen months when she testified that she did not hire an attorney until after the statute had run and after she received notification that her benefits were terminated. As noted above, Dietz repeats this claim on appeal — that “she immediately hired her current attorney” after receiving a letter in January 2014 — even though the record shows that she hired the attorney in October 2012.

¶ 30. This testimony by Dietz was essential to her estoppel claim. Given that Dietz was, at best, mistaken about this critical sequence of events, I cannot say that the Commission made “an unsupportable finding of fact” in finding that the carrier’s assurances did not induce Dietz to take no action. See Ga. Pac. Corp. v. Taplin, 586 So.2d 823, 826 (Miss. 1991) (“This Court will overturn a Commission decision only for an error of law or an unsupportable finding of fact.” (citations omitted)). The lead opinion concludes that there is a “more likely explanation” for these inconsistencies, ante at (¶ 22), but our role is not to reweigh the evidence or determine what is “more likely.” “When, as in this case, the Commission’s decision is supported by substantial evidence, it must be upheld even if we might have reached a different conclusion were we the trier of fact.” Howard Indus. Inc. v. Hardaway, 191 So.3d 1257, 1267 (¶ 27) (Miss. Ct. App. 2015), cert. denied, 202 So.3d 208 (Miss. 2016) (alterations, quotation marks omitted).

¶31. Because the Commission’s finding on this issue should be affirmed, there is no basis for holding that the employer/carrier are estopped from raising the statute of limitations as a defense. As the Commission correctly concluded, the case is otherwise controlled by the Mississippi Supreme Court’s holding that an employer’s voluntary payment of medical benefits does not toll the statute of limitations when, as in this case, no other compensation is paid. See Speed Mech. Inc. v. Taylor, 342 So.2d 317, 318-19 (Miss. 1977); accord Baker v. IGA Super Valu Food Store, 990 So.2d 254, 258 (¶¶ 8-9) (Miss. Ct. App. 2008), cert. denied, 994 So.2d 186 (Miss. 2008). Dietz cites a treatise that is critical of the Speed Mechanical decision. John R. Bradley & Linda A. Thompson, Mississippi Workers’ Compensation § 7:12 (2016). However, Speed Mechanical has not been overruled by the Supreme Court or the Legislature.

¶ 32. The Commission’s findings of fact have sufficient support in the record, and there is no legal error in the Commission’s ruling that the doctrine of equitable estop-pel does not apply to the facts it found. Accordingly, I respectfully dissent.

GRIFFIS, P.J., ISHEE AND CARLTON, JJ., JOIN THIS OPINION; FAIR, J., JOINS THIS OPINION IN PART.

      . In other words, one week, Dietz might work •Wednesday through Sunday and have off Monday and Tuesday, while the next week, she might work Monday through Friday and have off Saturday and Sunday.

      . Emplpyer/Carrier admits that Dietz's injury was compensable under workers’ compensation law.

      . Dietz testified at trial that Employer did not require employees to specify their reasons for taking leave.

      . "Comp.” does not necessarily refer to workers’ compensation; rather, it refers to the employees’ use of their allotted compensation time; in late 2012, Employer began a scheduling format wherein employees accumulated "comp.” time rather than overtime pay. Dietz testified at trial that if an employee did not work the required number of hours for that pay period, Employer would deduct those hours from the employees' bank of "comp.” time. The same holds true for the time period before Employer switched to a different scheduling format: Employer would deduct leave time from the employees’ allotted amount if employees did not work their required number of hours in a pay period.

      . While Dietz's stated issue in this appeal covers the entirety of the Commission’s deck sion, which addressed two issues — whether Dietz had been paid wages-in lieu of compensation and whether Employer/Carrier was es-topped from asserting tire two-year statute-of-limitations bar — she has briefed only the es-toppel issue. Therefore, we will limit our discussion to that issue.

      . The dissent takes issue with our statement that Dietz testified without contradiction that she did not consult a lawyer until after her doctor's appointment that occurred on January 13, 2014. Apparently, the dissent's contention is that the dated contract contradicts Dietz’s testimony. That may be the case; however, the contract was not admitted as an exhibit during the hearing before the AJ. Therefore,, she testified without contradiction by either witness testimony or documentary evidence. What is more? Even Employer/Carrier agrees that the contract was not made a part of the Commission's record. It is interesting and very notable that Employer/Carrier does not make the contract issue a central part of its argument on appeal. Its only statement about the contract appears on the last page of its brief and is expanded upon in a footnote. Clearly, the contract issue is a red herring.

      . A footnote in Employer/Carrier’s brief states that the contract was "not made a part of the Commission[’s] record, though it is available as part of their online docket

      . This agreement was filed in January 2014 with the petition to controvert. The month and day are handwritten; the year is typed. The contract specifically states that the representation concerns the January 10, 2012 injury. The file-stamped contract is at pages 9 and 10 of the certified volume of pleadings that this Court received from the Workers' Compensation Commission as part of the record on appeal. Both Dietz and her lawyer signed the contract, and her lawyer filed it with the Commission. The lead opinion states; “Apparently, the dissent’s contention is that the dated contract contradicts Dietz's testimony.” Ante at n.6. That is not a "contention.” The document objectively contradicts Dietz’s testimony and claim on appeal that she did not hire her attorney until January 2014. The lead opinion apparently considers it important to the issue on appeal that Dietz did not hire her attorney until January 2014. Ante at (¶¶ 7, 16-17). If so, then a contract, signed and filed by Dietz, that shows that she hired the attorney fifteen months earlier is hardly a "red herring.” Ante at n.6.


source: Caselaw Access Project

author: WILSON, J.,

license: Public Domain

text:
    Dung Thank TRAN a/k/a Julio Tran a/k/a Dung Tran a/k/a Dung T. Tran a/k/a Dung Thanh Tran, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00719-COA
    Court of Appeals of Mississippi.
    04/18/2017
    Rehearing Denied August 1, 2017
    Certiorari Denied November 9, 2017

      ATTORNEY FOR APPELLANT: DUNG THANK TRAN (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA BYRD
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1, Dung Thank Tran appeals from an order dismissing his motion for post-conviction relief (PCR). The Grenada County Circuit Court dismissed Tran’s motion for lack of jurisdiction because the Mississippi Supreme Court had denied Tran’s application for leave to file the motion. We affirm.

FACTS AND PROCEDURAL HISTORY

•¶ 2. In March 1999, Tran sold cocaine to a confidential informant working for the Grenada Police Department. The transaction occurred in a room at the Holiday Inn in Grenada and was recorded' with audio and video equipment set up by narcotics agents who monitored the buy from the next room. The audio and video tapes of the transaction were played at Tran’s trial in the circuit court in January 2000. The jury found Tran guilty of selling cocaine, and he was sentenced as a violent habitual offender to life imprisonment without &e possibility of probation or parole. On direct appeal, this Court affirmed Tran’s conviction and sentence. Tran v. State, 785 So.2d 1112, 1120 (¶ 26) (Miss. Ct. App. 2001).

¶3. In 2010, Tran filed a PCR motion attacking a prior conviction for possession of cocaine, which resulted from a January 1995 guilty plea. Tran completed serving his sentence on that conviction and was released from custody prior to his 1999 arrest and conviction for selling cocaine. Tran sought to challenge his 1995 conviction via a PCR motion because it was one of the predicate felonies used to convict him as a violent habitual offender in 2000. The circuit court dismissed Tran’s PCR motion, and this Court affirmed. Tran v. State, 92 So.3d 1278, 1278 (¶ 1) (Miss. Ct. App. 2011), cert. denied 95 So.3d 1274 (2012). This Court held that because Tran had already finished serving his sentence on the 1995 conviction,, he could no longer collaterally attack that conviction via a PCR motion. Id. at 1279 (¶ 7). We also noted that Tran’s attack on the 1995 conviction was clearly time-barred. Id. at (¶ 6).

¶ 4. In' 2014, Tran filed an application in the Supreme Court in which he sought leave to challenge his present life sentence via. a PCR motion in the trial court. Tran claimed that his sentence was “illegal” because of his alleged “actual innocence as a habitual offender.” A panel of the Supreme Court denied Tran’s application, finding that it was barred by the statute of limitations, the prohibition against successive applications, and res judicata and also “without merit.” Tran v. State, 2014-M-00253 (Miss. April 11, 2014).

¶ 5. Undeterred, Tran filed a new PCR motion in the circuit court. Although Tran’s obvious goal is to set aside his present life sentence, his motion may be interpreted as an attack on his prior (1995) conviction for possession of cocaine. Tran argues that his 1995 felony conviction is void because his offense was only a misdemeanor. He relies on amendments to the law that took effect more than nineteen years after he was convicted and more than sixteen years after he finished serving his sentence for the conviction.

¶ 6. The circuit court dismissed Tran’s motion pursuant to Mississippi Code Annotated section 99-39-7 (Rev. 2015), which provides that if a prisoner’s conviction and sentence have been affirmed on direct appeal, he must request and obtain leave from the Supreme Court before he may file a PCR motion in the circuit court. Tran had not obtained permission from the Supreme Court; in fact, permission had been denied. Therefore, the circuit court determined that it was without jurisdiction and dismissed Tran’s motion. Tran filed a timely notice of appeal from the circuit court’s order of dismissal.

DISCUSSION

¶ 7. We affirm because the circuit court properly dismissed Tran’s PCR motion. If Tran’s present motion is construed as a challenge to his present life sentence, then the circuit court was plainly correct to dismiss for lack of jurisdiction. Because Tran’s 2000 conviction and sentence were affirmed on direct appeal, section 99-39-7 required him to obtain permission from the Supreme Court before filing a PCR motion in the circuit court. “This procedure is not merely advisory, but jurisdictional.” Doss v. State, 757 So.2d 1016, 1017 (¶ 6) (Miss. Ct. App. 2001). “Because permission to proceed had been denied, the trial court was without jurisdiction to hear [Tran’s] motion.” Brock v. State, 114 So.3d 733, 734 (¶ 8) (Miss. Ct. App. 2012).

¶ 8. If instead we interpret Tran’s motion as an attack on his 1995 conviction, then it was properly dismissed for the same reason that this Court affirmed the dismissal of his prior PCR motion, which attacked the same conviction: Tran lacks standing to collaterally attack his'1995 conviction years after he completed serving the sentence for that conviction, ¿nd the eirduit court therefore lacked jurisdiction to consider Tran’s motion. Tran, 92 So.3d at 1279 (¶ 7); accord Birmingham v. State, 159 So.3d 597, 599 (¶¶ 6-9) (Miss. Ct. App. 2014); Wilson v. State, 76 So.3d 733, 735-36 (¶¶ 11, 13) (Miss. Ct. App. 2011). Thus, the circuit court was correct to dismiss Tran’s PCR motion no matter how it is interpreted.

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

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

      . Effective July 1, 2014, the Legislature amended Mississippi Code Annotated section 41 — 29—139(c)(1) to provide that simple pos-. session of less -than one-tenth gram or two dosage units of a Schedule I or II controlled substance "is a misdemeanor and punishable by imprisonment for not more than one year.” 2014 Miss. Laws ch'. 457, §'37 (H.B. 585). Prior to 1998, the statute did not require proof of weight or quantity on a charge of simple possession of a Schedule I or II controlled substance, so Tran’s 1995 indictment and conviction do not specify the amount of cocaine he illegally possessed. Also, contrary to Tran's argument, nothing in House Bill 585 purports to void prior felony convictions.


author: LEE, C.J., CARLTON, J.,

text:
    GULFPORT PARTNERS V, L.P., Gulfport Partners VI, L.P., Gulfport Partners VII, L.P., Gulfport Partners VIII, L.P., and Gulfport Partners IX, L.P., Appellants v. HARRISON COUNTY BOARD OF SUPERVISORS and Tal Flurry, Tax Assessor for Harrison County, Mississippi, Appellees Bellemont Gardens, L.P., and Biloxi Gates, L.P., Appellants v. Harrison County Board of Supervisors and Tal Flurry, Tax Assessor for Harrison County, Mississippi, Appellees D’Iberville Partners, L.P., Woolmarket Partners, L.P., and Woolmarket Partners II, L.P., Appellants v. Harrison County Board of Supervisors and Tal Flurry, Tax Assessor for Harrison County, Mississippi, Appellees D’Iberville Partners, L.P., Woolmarket Partners, L.P., and Woolmarket Partners II, L.P., Appellants v. Harrison County Board of Supervisors and Tal Flurry, Tax Assessor for Harrison County, Mississippi, Appellees
    NO. 2016-CA-00062-COA, NO. 2016-CA-00087-COA, NO. 2016-CA-00090-COA, NO. 2016-CA-00091-COA
    Court of Appeals of Mississippi.
    05/23/2017
    Rehearing Denied September 26, 2017

      JOHN G. C.ORLEW, KATHY K. SMITH, LYNN CHAIN WALL, ATTORNEYS FOR APPELLANTS:
    TIM C. HOLLEMAN PATRICK TAYLOR GUILD, ATTORNEYS FOR AP-PELLEES:
    BEFORE LEE, C.J., BARNES AND GREENLEE, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. This appeal arises from four consolidated cases: 2016-CA-00062-COA, 2016-CA-00087-COA, 2016-CA-00090-COA, and 2016-CA-00091-COA. In this appeal we must decide whether the circuit court erred when it denied Gulfport Partners L.P.’s motion for (1) the cost of bond premiums required by statute to perfect the appeal and (2) prejudgment interest on the liquidated amount of tax in dispute required to be paid by the statute. Gulfport Partners now appeals the circuit court’s denial of its motion.

FACTS AND PROCEDURAL HISTORY

¶ 2. Gulfport Partners appealed its 2011 ad valorem county tax assessment, as assessed by the Harrison County Tax Collector and approved by the Harrison County Board of Supervisors (Board), to the Harrison County'Circuit Court. While the case was pending in the circuit court, the Mississippi Supreme Court handed down its decision in Willow Bend Estates LLC v. Humphreys County Board of Supervisors, 166 So.3d 494 (Miss. 2013), which interpreted the statute governing the determination of the true value of affordable rental housing for purposes of ad valorem taxation. In accordance with the supreme court’s decision in Willow Bend, all of the parties in the consolidated cases agreed on the amount of the assessment for each property. Accordingly, an agreed final judgment was entered directing the Harrison County Tax Collector to determine the taxes owed based upon the true and assessed values in accordance with the supreme court’s ruling in Willow Bend and to refund any amounts due to Gulf-port Partners based upon the assessment. The agreed order stated “that the court retain[ed] jurisdiction to consider costs and/or interest, if any.”

¶ 3. Gulfport Partners then filed a “motion to tax costs and prejudgment interest.”-The costs requested in the motion included the costs of the bond premiums required to appeal the ad valorem tax assessment and prejudgment interest from the date of overpayment of taxes until the date of the refund. Gulfport Partnórs cited Mississippi Rule of Appellate Procedure 36(c), which provides that costs include “the premiums paid for cost of supersede-as bonds or other bonds to .preserve rights .pending appeal.” The Board argues, and the trial court found, that the Mississippi Rules of Appellate Procedure did not apply to cases before the circuit court. The circuit court denied Gulfport Partners’ motion, holding that there was no statutory authority for the recovery of bond premiums as costs. The court also denied Gulfport Partners’ request for prejudgment interest, noting that it failed to make demand for it in its pleadings or cite to any statutory authority allowing for its award. Gulfport Partners appeals the circuit court’s denial of its motion.

STANDARD OF REVIEW

¶4. The issue on appeal is whether bond premiums are recoverable as a “cost” within the meaning of Mississippi Code Annotated section 11-51-77 (Rev. 2012). An appellate court’s “review of a trial court’s interpretation of a statute presents a question of law; we review questions of law de novo.” Miss. Ethics Comm’n v. Grisham, 957 So.2d 997, 1000 (¶ 8) (Miss. 2007) (quoting 32 Pit Bulldogs v. Cty. of Prentiss, 808 So.2d 971, 973 (¶ 8) (Miss. 2002)).

DISCUSSION

I. Bond Premiums

¶ 5. Section 11-51-77 states, in relevant part: ‘

Any person aggrieved by a decision of the board of supervisors or the municipal authorities of a city, town or village, as to the assessment of taxes, may .,. appeal to the circuit court of the county, upon giving bond, with sufficient sureties, in double the amount of the matter in dispute, but never less than One Hundred Dollars ($100.00), payable to the state, and conditioned to perform the judgment of the circuit court.
If the matter be decided in favor of the person who appealed, judgment in his favor shall be certified to the board of supervisors, or the municipal authorities, as the case may be, which shall conform thereto, and shall pay the costs.

¶6. Section 11-51-77 specifically governs the appeal of a county ad valorem tax assessment. Though the parties and the circuit court refer to Mississippi Code Annotated section 11-53-53 (Rev. 2Q12) for its applicability, we limit our discussion to section 11-51-77, as it controls the instant case. “The well-settled principles of statutory construction require recognition of the fact that the specific statute, [section] 11-51-77, controls the general statute,” here being section 11-53-53. Lenoir v. Madison Cty., 641 So.2d 1124, 1132 (Miss. 1994). “[Section 11-51-77] governs the method of appealing to the circuit court from the board of supervisors, where a tax matter is involved, [and] is dispositive of the outcome in the ease.sub judiee.” Id.

¶ 7. Here, Gulfport Partners, as directed by the statute, properly appealed to the circuit court the decision of the Board approving the county’s tax assessment. In order to appeal, it consequently incurred the cost of bond premiums by posting the bond required by the statute. It successfully challenged the tax assessments such that it was owed a refund. Undisputedly, the statute mandates that the Board, pay “the costs.” The parties disagree, however, as to what constitutes “the costs” within the meaning of the statute.

¶8. “When presented with a question regarding the application of a statute, [an appellate court] strives to give the statute its effect as intended by the Legislature.” AmFed Nat’l Ins. v. NTC Transp. Inc., 196 So.3d 947, 958 (¶ 39) (Miss. 2016) (citing City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss. 1992)). Therefore, we first look to the language of the statute. Id. “[I]f the words of a statute are clear and,unambiguous, we apply the plain meaning of the statute .... ” Id. (quoting Lawson v. Honeywell Int'l. Inc., 75 So.3d 1024, 1027 (¶ 7) (Miss. 2011)). “Where the [Legislature has not defined a term within the statutory scheme, we look to the term’s common and generally accepted meaning.” Moore ex rel. City of Aberdeen v. Byars, 757 So.2d 243, 248 (¶ 15) (Miss. 2000) (citing Corry v. State, 710 So.2d 853, 861 (¶ 25) (Miss. 1998)). Finally, “[a]ll words and phrases contained in the statutes are used according to their common and ordinary acceptation and meaning.” Miss. Code Ann. § 1-3-65 (Rev. 2014)..

■ ¶ 9. Here, it is clear from a plain reading of the statute that the appellant is required to post a bond in order to appeal. It is also clear from .the statute that where the appellant- prevails, the Board - is required to pay the costs. This Court has previously noted that Mississippi caselaw, with respect to.- the definition of costs, is “consistent with the general language found in the comment to [Mississippi] Rule [of Civil Procedure]- 54(d).” Hubbard v. Delta Sanitation of Miss., 64 So.3d 547, 564 (¶ 69) (Miss. Ct. App. 2011). In so doing, we have held that “costs represents those official expenses, such as court fees, that a court will assess against a litigant.” Id. (citing M.R.C.P. 54(d) cmt.). Certainly, where the statute requires the appellant to post a bond in order to appeal, the bond premiums constitute an “official expense ... that a court will assess against a litigant.” Id. Moreover, in the instant case, the controlling statute does not give the circuit court the discretion to assess costs, but rather requires it to assess costs: “shall pay the costs.” § 11-51-77 (emphasis added).

¶ 10. Additionally, though the Mississippi Rules of Appellate Procedure specifically govern the procedures of this Court and the Mississippi Supreme Court, we do find Rule 36 to be instructive in the instant cage. Under Rule 36(c), recoverable costs on appeal include “the premiums paid for cost of supersedeas bonds or other bonds to preserve rights pending appeal.” Analogously, the instant case involved an appeal — albeit before the circuit court— where the appellant, Gulfport Partners, incurred the cost of bond premiums as required by the statute in order to appeal. Thus, Rule 36(c) provides further support for the interpretation that “the costs” named in section 11-51-77 include the premiums paid for the cost of the bonds required to appeal, as this interpretation is consistent with other Mississippi appellate procedures. The dissent states that" the “Mississippi Rules of Appellate Procedure apply to proceedings in circuit court when the circuit court sits as an appellate court.” However, the cases the dissent relies on for support specifically refer to when a circuit court sits as an appellate court in an appeal from a county court. See Van Meter v. Alford, 774 So.2d 430, 432 (¶ 3) (Miss. 2000); Am. Inv’rs Inc. v. King, 733 So.2d 830, 832 (¶ 4) (Miss. 1999); Adams v. Miss. State Oil & Gas Bd., 80 So.3d 869, 871 (¶ 8) (Miss. Ct. App. 2012). -The instant casé deals with an appeal from a board of supervisors to the circuit court that is governed by a specific statute. Our caselaw ■does not address the Mississippi Rules of Appellaté Procedure in this instance, and we decline to extend the established law.

¶ 11. A plain reading of section 11-51-77, in conjunction with the meaning of costs in accordance with the Mississippi Rules of Civil Procedure and our caselaw, illustrates that “the costs” mandated by the statute include the bond premiums necessitated by the statute. The circuit court erred when it denied Gulfport Partners’ motion to tax these costs. With respect to this issue, the judgment of the circuit court is reversed.

II. Prejudgment Interest

¶ 12. In its motion to tax the costs, Gulfport Partners also requested prejudgment interest on the liquidated amount of overpayment, which was denied by the circuit court. We review the circuit court’s grant or denial of a request for prejudgment interest under an abuse-of-discretion standard. Indem. Ins. of N. Am. v. Guidant Mut. Ins., 99 So.3d 142, 156 (¶ 39) (Miss. 2012). Finding no abuse of discretion, we affirm.

¶ 13. “The purpose of prejudgment interest is ... ‘to provide compensation for the detention of money [that is] overdue.’” Arcadia Farms P’ship v. Audubon Ins. Co., 77 So.3d 100, 105 (¶ 19) (Miss. 2012) (quoting Moeller v. Am. Guar. & Liab. Ins. Co., 812 So.2d 953, 958 (¶ 11) (Miss. 2002)). “It compensates ... for the time value of money.” Id. (citing In re Guardianship of Duckett, 991 So.2d 1165, 1182 (¶ 41) (Miss. 2008)).

¶ 14. The supreme court has recognized that Mississippi Code Annotated section 75-17-7 (Rev. 2016) provides the circuit court with the discretion to award prejudgment interest:

All judgments or decrees founded on any sale or contract shall bear interest at the same rate as the contract evidencing the debt on which the judgment or decree was rendered. All other judgments or decrees shall bear interest at a per annum rate set by the judge hearing the complaint from a date determined by such judge to be fair but in no event prior to the filing of the complaint.

Id. “This statute does not require judges to award prejudgment interest, but allows the judge to determine the date from which interest will- be calculated.” Indemnity, 99 So.3d at 157 (¶ 39). The supreme court has also stated the following regarding the award of prejudgment interest:

It is well settled that in Mississippi a trial judge is afforded discretion in deciding whether to award prejudgment interest. Under Mississippi law, prejudgment interest may be allowed in cases where the amount due is liquidated when the claim is originally made or where the denial of a claim is frivolous or in bad faith. No award of prejudgment interest may rationally be made where the principal amount has not been fixed prior to judgment.

Id. at (¶ 40). Finally, “the party requesting prejudgment interest is required to make a demand for prejudgment interest in its complaint.” Id. (citing Upchurch Plumbing Inc. v. Greenwood Util. Comm’n, 964 So.2d 1100, 1118 (¶ 45) (Miss. 2007)).

¶ 15. Here, Gulfport Partners was owed a refund for the overpayment of taxes, which were liquidated when it originally made its claim. So it is undisputed that Harrison County detained money that was overdue so as to justify the purpose for which prejudgment interest is awarded. However, Gulfport Partners failed to make demand — as required — for prejudgment interest in its pleadings. Further, section 11-51-77, the controlling statute, does not provide an award of prejudgment interest for the successful appellant. And Mississippi Code Annotated section 27-73-1 (Rev. 2010), which governs the refund of erroneously paid taxes, does not mention interest on the overpayment of taxes.- Because Gulfport Partners did not request prejudgment interest in its pleadings, and there is no statutory authority mandating prejudgment interest, the circuit court did not abuse its discretion when it denied Gulf-port Partners’ request. Our decision applies fully and uniformly to the four cases consolidated on appeal and to the respective appellants and appellees herein.

¶ 16. THE JUDGMENTS OF THE HARRISON COUNTY CIRCUIT COURT ARE AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED AT ONE-HALF TO THE APPELLANTS AND ONE-HALF TO THE APPELLEES.

IRVING, P. J., FAIR, WILSON AND GREENLEE, JJ., CONCUR. BARNES AND WESTBROOKS, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J. ISHEE, J., NOT PARTICIPATING.

CARLTON, J.,

DISSENTING: ■

¶ 17.1 respectfully dissent from the majority’s opinion. The Mississippi Rules of Appellate Procedure apply to proceedings in circuit court when the circuit court sits as an appellate court. See Van Meter v. Alford, 774 So.2d 430, 432 (¶ 3) (Miss. 2000); Am. Inv’rs Inc. v. King, 733 So.2d 830, 832 (¶ 4) (Miss. 1999); Adams v. Miss. State Oil & Gas Bd., 80 So.3d 869, 871 (¶ 8) (Miss. Ct. App. 2012).

GRIFFIS, P.J., JOINS THIS OPINION.

      . The appellants in each of the four cases present identical legal issues, and all involve the Harrison County Board of Supervisors and the Harrison County Tax Collector as the appellees. Our opinion refers to Gulfport Partners as a representative of all the appellants in these consolidated cases. Thus, our decision applies to the other three consolidated cases in the same manner as it applies to Gulfport Partners.


author: FAIR, J., CARLTON, J.,

text:
    Travon MCCALL, Appellant v. SANDERSON FARMS, INC. and New Hampshire Insurance Company, Appellees
    NO. 2016-WC-01248-COA
    Court of Appeals of Mississippi.
    08/01/2017
    Rehearing Denied December 12, 2017
    ATTORNEY FOR APPELLANT: LINDSAY. ERIN VARNADOE
    ATTORNEYS FOR APPELLEES: RICHARD LEWIS YODER JR., WILLIAM LAWRENCE THAMES
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.,
   FAIR, J.,

FOR THE COURT:

¶ 1. This workers’ compensation case involves one. issue: whether Travon McCall suffered a compensable injury under Mississippi Code Annotated sections 71-3-7 and 71-3-121 (Supp. 2016). The administrative judge (AJ) held that McCall’s injury was compensable. The Mississippi Workers’ Compensation Commission (Commission) reversed the AJ, holding his injury was not compensable because he had refused to take a breathalyzer test after the injury occurred. We find that the Commission’s decision was not supported by substantial evidence. Thus, we reverse and render judgment in favor of-McCall.

•FACTS

¶ 2. McCall worked as a cook-line operator for Sanderson Farms. On May 10, 2014, he bent down to pick up a small tub of waste flour and injured his lower back. He testified that the tub weighed between thirty and forty pounds. McCall reported the injury to his supervisor. Someone brought McCall -a wheelchair, but he was unable to sit because of the pain running down his right leg. So he used the wheelchair to scoot off the floor and went to the nurse’s office to wait for the nurse, Suzan Crisler. Crisler was at home because it was a late shift. She was immediately called in to perform a urine drug test and arrived twenty to thirty minutes later.

¶ 3. Crisler testified that it is Sanderson Farms’ policy to perform both a drug test and an alcohol test when an employee is injured on the premises. She also testified that McCall initially provided an untestá-ble urine sample (under forty-five milliliters according to company policy), so she requested that he take another one, telling him he could wait up to three hours to take it. McCall immediately downed forty ounces of water given to him- by Crisler, took a cup into the restroom, and failed to produce a sample. McCall testified that, due to his pain, he lost his temper and walked out, heading for a nearby hospital, instead of giving another sample. Crisler said that as McCall was leaving, the contracted breath-alcohol technician arrived to give the breathalyzer test. The bill submitted by the technician showed mileage of thirty miles and a charge of $100 for the callout on May 10, without any listed arrival time.

¶ 4. River Oaks Hospital’s records show that McCall was logged -in at River Oaks at 12:24 a.m. The hospital is approximately two miles from Sanderson Farms. When McCall arrived, one of his supervisors was already there with workers’ compensation paperwork. McCall was diagnosed with acute, lower back pain. He received a shot in the back for pain relief and then provided a urine sample. The sample tested negative for amphetamines, barbiturates, benzodiazepines, cocaine, metabolite, marijuana metabolite, methadone, opiates, phencyclidine, and propoxyphene. No breathalyzer test was ever .offered or administered to McCall. He took, prescribed medication - for the pain, but declined a recommended opiate (dilaudid/hy-dromorphone) pain medication.- He was discharged approximately two hours after arrival.

¶ 5. On. May 12, -2014, McCall was terminated with the “[rjeason for [tjermination: voluntarily resigned” because of “refusal of drug/alcohol test” and-, because he “left [without] permission.” The AJ found that McCall’s injury was .compensable. The Commission reversed the AJ’s ruling, finding that McCall was not entitled to compensation since he refused to submit to alcohol testing. McCall appealed.

. STANDARD OF REVIEW

¶ 6. We will not reverse the Commission’s decision unless it is unsupported by “substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law.” Weatherspoon v. Croft Metals Inc., 853 So.2d 776, 778 (¶ 6) (Miss. 2003). “No court can reweigh the evidence^] [T]he Commission is the fact-finder and the-judge o'f the credibility of witnesses” Short v. Wilson Meat House LLC, 36 So.3d 1247, 1251 (¶ 23) (Miss. 2010) (citing Barber Seafood Inc. v. Smith, 911 So.2d 454, 461 (¶ 27) (Miss. 2005)). We view questions of statutory interpretation de novo. Miss. Ins. Guar. Ass’n v. Miss. Workers’ Comp. Individual Self-Insurer Guar. Ass’n, 93 So.3d 1, 3 (¶ 10) (Miss. 2012).

DISCUSSION

¶ 7. An employee is generally entitled to compensation for an injury arising out of and in the course of his employment (which was stipulated by the parties to be the case in this matter). Miss. Code Ann. § 71-3-7(1). However, “[n]o compensation shall be payable if the use of drugs illegally, or the use of a valid prescription medication(s) taken contrary to the prescriber’s instructions and/or contrary to label warnings, or intoxication due to the use of alcohol of the employee was the proximate cause of the injury .... ” Miss. Code Ann. § 71-3-7(4).

¶ 8. Section 71-3-121(1) provides that:

'In the eveht that an employee sustains an injury at work or asserts a work-related injury, the employer shall have 'the right to administer drug and alcohol testing or require that the employee submit himself to drug and alcohol testing .... If the employee refuses to submit himself to drug and alcohol testing immediately after the alleged work-related injury, then it shall be presumed that the employee was using a drug illegally, or was using a valid prescription medication(s) contrary to the prescriber’s instructions and/or contrary to label warnings, or was intoxicated due to the use of alcohol at the time of the accident and that the proximate cause of the injury was the use of a drug illegally, or the use of a valid prescription medication(s) taken contrary to the prescriber’s instructions and/or contrary to label warnings, or the intoxication due to the use of ■alcohol of the employee. The burden of proof will then be placed upon the employee to prove that the use of drugs illegally, or the use of a valid prescription medication(s) taken contrary to the prescriber’s instructions and/or contrary to label warnings, or intoxication due to the use of alcohol was not a contributing cause of the accident in order to defeat the defense of the employer provided under [sjection 71-3-7.

(Emphasis-added).

¶ 9. The AJ and the Commission differed as to whether McCall “refused” drug and alcohol testing, triggering the rebuttable presumption. The AJ found that McCall did not refuse drug or alcohol testing and that McCall willingly submitted to a urine test at Sanderson Farms, even though the test was inadequate. Her decision to award McCall compensation was based on a finding that McCall’s urine sample at River Oaks tested negative for drugs/alcohol. However, McCall was never tested for alcohol. The Commission reversed, finding that the greater weight of the evidence showed that McCall knew he was required to submit to drug and alcohol testing and refused to do so at Sanderson Farms. The Commission further found that McCall rebutted the presumption that he was using drugs with his negative urine sample at River Oaks. But the Commission ultimately held that since McCall did not rebut the presumption that he was under the influence of alcohol at the time of injury, his injury was-noncompensable.

¶ 10. The record is silent as to when McCall’s shift started, but he testified it would have ended at midnight. Cris-ler testified that she received the call about McCall’s injury around 8 p.m. and arrived at the plant by 8:20 or 8:30. McCall reportedly left Sanderson Farms before the breathalyzer technician arrived, or close to the same time. Crisler testified that McCall left Sanderson Farms at approximately 9:30 p.m. McCall said he left at 11 p.m. and that one of his supervisors was already at the hospital when he arrived. The only written record directly addressing submission by McCall concerning his acceptance or refusal of an alcohol test is a statement by him signed and dated by McCall and Crisler. The signed document referred to testing procedures, “including but not limited to urine testing or breath analyzing for drugs and alcohol,” and stated that “by my signature below, I agree to submit to these tests.” The record reflects nothing contradicting that document.

¶ 11. Finally, we note that the test conducted at the hospital occurred in the following context, according to McCall:

Once I arrived at the hospital, I can say this, that a supervisor of mine, his name’s Tim, he did actually go to the hospital and he went to look for me. He had already had the paperwork for the workers’ comp, filled out everything. When I talked to the nurses, they said, “Now, you know, Mr. McCall, you’re going to have to take a drug test.” I said[,] “I don’t have — like I told them at my job, I don’t have no problem with taking no drug test, just please can you do something for this pain in my back.” Kindly and polite as I told them, they said, “Sure. No problem.” ... I gave them a drug sample, and they told me to follow my procedures with the workers’ comp, get in contact with your job. I said, “No problem.” I thanked them. I was happy because they — whatever was going on down there, they made it stop.

¶ 12. Given that an employee supervisor was present at the hospital, that the hospital employees urged McCall to follow his employer’s procedures, and that McCall gave written permission submitting himself to testing, we find that the evidence is insufficient to support an inference that McCall intentionally refused to cooperate with his employer’s requirement that he submit himself to testing for alcohol. Moreover, according to the evidence presented by Sanderson Farms, McCall remained on the premises and available for alcohol testing for an hour and a half after he reported his injury. Yet Sanderson Farms did not offer him a breathalyzer test during this time.

¶ 18. Therefore, after reviewing the record and applying the applicable standard of review, we find the Commission’s decision was not supported by substantial evidence. We reverse the decision of the Commission and render a decision awarding benefits pursuant to section 71-3-7 to McCall.

¶ 14. REVERSED AND RENDERED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

CARLTON, J.,

DISSENTING:

¶ 15.1 respectfully dissent from the majority’s opinion and would affirm the Commission’s decision. See Miss. Code Ann. § 71-3-121(1) (Supp. 2016).


author: FAIR, J.,

text:
    Joshua Demien MAGEE a/k/a Joshua Magee, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01257-COA
    Court of Appeals of Mississippi.
    12/12/2017

      ATTORNEY FOR APPELLANT: MATTHEW ALLEN BALDRIDGE
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JOSEPH SCOTT HEMLEBEN
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. Joshua Magee was convicted of two counts of sexual battery relating to his then seven-year-old cousin, Abby. At the time of the offense, Magee was thirty-three years of age and living in the same household as the victim. The victim disclosed repeated acts of sexual abuse after she and Magee were caught together late at night without explanation. On appeal, Magee raises a number of evidentiary,is-sues and challenges the weight and.sufficiency of the evidence. We find that none of these contentions have merit, and we affirm.

DISCUSSION

1. Magee’s Prior Felony Conviction

¶ 2. Magee testified in his own defense. In his first issue on appeal, he complains that the trial court erred in permitting the State to impeach him with his prior 'felony conviction. The court limited the impeachment to .the fact that Magee was a previously convicted felon; it did not allow the State to elicit the specific offense (aggravated assault), though Magee himself volunteered from the stand that his prior criminal history was “not dealing with no sexual activities.”

¶ 3. From our review of the record, this issue clearly has been waived. Magee initially moved in limine to exclude any reference to his prior convictions. The trial court granted the motion, in part, except to the extent that the prior .convictions might be used for impeachment if Magee testified, A ruling on that aspect of the motion was deferred. When the issue came up, after Magee declared his intent to testify in his own defense, the trial court began to hold a Peterson hearing to determine whether the impeachment would be allowed. But shortly after the hearing began, Magee’s attorney interposed that he had no objection to the impeachment. After the trial court offered the limitation, the attorney accepted it and reiterated that he had no objection. “In order to preserve an issue for appeal, counsel must object. The failure to object acts as a waiver.” Havard v. State, 928 So.2d 771, 791 (¶ 84) (Miss. 2006).

¶ 4. This issue has been waived.

2. Ineffective Assistance of Counsel

¶ 5. Next, Magee contends that his trial attorney rendered constitutionally ineffective assistance of counsel by failing to request a limiting instruction regarding his prior conviction.

¶ 6. To evaluate claims of ineffective assistance of counsel, we employ the two-part analysis outlined by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “First, the defendant must show that counsel’s performance was deficient. ... Second, the defendant must show that the deficient performance prejudiced the defense.” Stringer v. State, 454 So.2d 468, 477 (Miss. 1984) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052).

¶ 7. “Traditionally, trial counsel’s decision regarding whether to request certain jury instructions is considered trial strategy.” Taylor v. State, 109 So.3d 589, 596 (¶ 27) (Miss. Ct. App. 2013). The Mississippi Supreme Court has followed the United States Supreme Court’s cautioning that:

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.

Howard v. State, 945 So.2d 326, 354 (¶ 57) (Miss. 2006) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052) (citations omitted). We therefore “presume that counsel’s decision not to request a limiting instruction was within the ambit of trial strategy.” Curry v. State, 202 So.3d 294, 301 (¶ 24) (Miss. Ct. App. 2016).

¶8. There are good, strategic reasons counsel may choose not to request a limiting instruction. “[A] limiting instruction can actually focus the jury’s attention on sensitive information,” Sipp v. State, 936 So.2d 326, 331 (¶ 9) (Miss. 2006), and “has the potential to do the defendant more harm than good.” Curry, 202 So.3d at 301 (¶ 24). Magee has not rebutted the presumption that counsel’s, inaction on this point was anything but sound trial strategy-

¶9. Nonetheless, counsel’s intentions cannot be “fully apparent from the record,” and this issue is best left to a potential motion for post-conviction relief. • See M.R.A.P. 22(b). We deny relief on this issue without prejudice to a potential motion for post-conviction relief.

3. Tender Years Exception

¶ 10. Next, Magee contends that the trial court erred in admitting héarsay statements of the victim under Mississippi Rule of Evidencé 803(25), the tender years exception. It provides:

(25) Tender Years Exception. A statement by a child of tender years describing any act .of sexual contact with or by another is admissible if: (A) the court — after a hearing outside the jury’s presence — determines that the statement’s time, content, and circumstances provide substantial indicia of reliability; and (B) the child either: (i) testifies; or (ii) .is unavailable as a witness, and other evidence corroborates the act.

The reliability of the proffered. hearsay testimony.is evaluated, according to ¡the Wright factors,.which are:

(1) whether there is an apparent motive on the declarant’s part to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) the timing of the declarations; (6) the relationship between the declarant and-the witness; (7) the possibility of the declarant’s faulty recollection is remote; (8) • certainty that the statements were made; (9) the credibility of the person testifying about the statements; (10). the age or maturity of the declar-ant; (11) whether suggestive techniques were used in eliciting the statement; and (12) whether the declarant’s age, knowledge, and experience make it unlikely that the declarant • fabricated.

Withers v. State, 907 So.2d 342, 347-48 (¶ 14) (Miss. 2005) (quoting Idaho v. Wright, 497 U.S. 805, 822, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)).

¶11. The court in this case held an extensive'hearing on the admissibility of the hearsay statements and rendered from the bench a lengthy, detailed, and thoughtful opinion expressly addressing each of the Wright factors. The ruling occupies nearly fifteen pages in the transcript, and, suffice to say, adequately addressed every relevant factor, Magee’s complaints, on the other hand, are supported only by cursory argument and concern questions of fact and "credibility that were thoroughly addressed by the trial court. Specifically, Magee disagrees with the trial court regarding the degree of spontaneity of the victim’s statements (the court found that two of the three statements were not spontaneous but were not the product of suggestive questioning), and Magee claims that the victim was inconsistent in her statements. On the latter point, the judge found that-the victim was relating different incidents when speaking to different people, rather than being inconsistent per se. The court made extensive and detailed findings:

And during the interview with [the Child Advocacy Center], [Abby] didn’t talk about [the incidents she described to the other two witnesses], 'She talked about the Defendant performing oral sex on her and basically did not disclose the same thing that she had disclosed to Ms. Martin and Mr. Davis, Mr. Milton Davis. Now while that may seem to be inconsistent [-] and actually certainly is inconsistent [-] it doesn’t seem surprising to me that a child of that age at different times is going to remember some things and put relative importance on some things. I think that[,] in watching the interview!!, the interviewer] was obviously aware of the allegations that — of the disclosure [Abby] had made to' Martin [and] Davis [and] attempted ... to direct [Abby’s] attention back to that, but she certainly didn’t go so far as to say, “Now, didn’t you tell your grandmother and Mr, Davis that he put his thing in your mouth?” She didn’t do that and the child didn’t go forward and volunteer anything further than she had already said.
To me that is consistent with a child under the age of seven or seven or eight years old making a - report of these things happening[ but] doesn’t really want to talk about it and is going to relate different things at different times [-] with more than one thing happening.

Otherwise, Magee just disagrees with the weighing of the various factors and the necessity and fairness' of the tender years exception; but he does not develop the latter point into a separate issue. '

¶ 12. This Court, reviews evidentia-ry rulings for an abuse of discretion, which may be found only if the decision is not supported by substantial credible evidence or where “the reviewing court has a definite and firm conviction that the court below committed a clear error of judgment and [in the] conclusion it reached upon a weighing of the relevant factors.” Withers, 907 So.2d at 345 (¶ 7) (citation and quotations omitted).

¶ 13. Magee’s complaints are entirely directed to the trial court’s findings regarding credibility and its weighing of the various factors under consideration — issues that were entrusted to the trial court’s discretion and were thoroughly and soundly addressed by that court. As we can find no abuse of that discretion, this issue is without merit.

4. Sufficiency of the Evidence

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

¶ 15. Magee presents two challenges to the sufficiency of the evidence supporting his convictions. The first is a specific attack on the sufficiency of the evidence supporting his sexual battery conviction on ‘Count II, and the second is a more general attack on the credibility of the victim,

¶ 16. Count II alleged that Magee “performed cunnilingus” on the victim. On appeal, he contends that the victim’s testimony at trial — that he had “touched” her “vagina” with his “mouth,” was insufficient to support the conviction. Magee contends that this failed to meet the State’s burden to prove penetration, Mississippi Code Annotated section 97-3-97(a) (Rev. 2014) defines sexual penetration as including in relevant part “cunnilingus” and “any penetration-of the genital or anal , openings of another person’s body by any part of a person’s body, and insertion of any object into the genital or anal openings of another person’s body.”

¶ 17. While we think the victim’s testimony that Magee “touched” her “vagina” with his “mouth,” taken in the context of her other testimony unambiguously describing sexual abuse, was adequate, there is other evidence in the record supporting the conviction on this count. The child’s hearsay statements were admitted into evidence under the tender years exception to the rule against hearsay and were, therefore, competent substantive evidence. See M.R.E. 803(25); Veal v. State, 585 So.2d 693, 697 (Miss. 1991). During the interview, the victim stated that Magee had “sucked” on her “middle,” which she had identified as her genital areq. This unambiguously proved penetration. “[P]roof of contact, skin to skin, between a person’s mouth, lips, or tongue and the genital opening of a woman’s body, whether by kissing, licking, or sucking, is sufficient proof of sexual penetration through the act of cunnilingus within the purview of [section] 97-3-97(a).” Bateman v. State, 125 So.3d 616, 623 (¶ 19) (Miss. 2013) (citation and internal quotation marks omitted).

¶ 18. The evidence was clearly sufficient to support the conviction under Count II.

¶ 19. Magee’s other challenge to the sufficiency of the evidence is almost entirely an attack on the credibility of the victim; he contends that she was not credible based on alleged contradictions and inconsistencies in her testimony and the various hearsay statements that were admitted into evidence. These contentions largely track those made in t|ie prior issue contesting the reliability of the hearsay statements. But it is the jury, not the reviewing court, that is the arbiter of witness credibility. See Hartfield v. State, 161 So.3d 125, 140 (¶ 23) (Miss. 2015). Our review on appeal is limited to whether any rational trier of fact could have found Ma-gee guilty. See Bush, 895 So.2d at 843 (¶ 16). We cannot find the verdict here unsupported by sufficient evidence.

5. Weight of the Evidence

¶20. Finally, Magee contends that his convictions were against the overwhelming weight of the evidence. A new trial based on the weight of the evidence should be granted “only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush, 895 So.2d at 844 (¶ 18) (citation omitted). “[T]he evidence must be viewed in the light most favorable to the verdict[.]” Jenkins v. State, 131 So.3d 544, 551 (¶ 23) (Miss. 2013). And the motion for a new trial is entrusted to the circuit judge, who had a firsthand view of the trial. “[R]ever-sal is warranted only if the trial court abused its discretion in denying [the] motion for a new trial.” Waits v. State, 119 So.3d 1024, 1028 (¶ 13) (Miss. 2013).

¶ 21. Magee does not actually brief this issue separately; his reasons for urging that the verdict was against the overwhelming weight of the evidence are the same ones as in his arguments concerning the sufficiency of the evidence — they are almost entirely an attack on the credibility of the witnesses. As we explained in the previous issue, the jury, not the reviewing court, is the judge of the credibility of witnesses. Hartfield, 161 So.3d at 140

(¶ 23). “It is the jury’s role to assess the weight and credibility of the evidence and to resolve any conflicts in the evidence.” Whittle v. State, 182 So.3d 1285, 1289 (¶ 12) (Miss. Ct. App. 2015) (citing Latiker v. State, 918 So.2d 68, 73 (¶ 12) (Miss. 2005)). This Court can “only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18).

¶ 22. That is not the case here. From our own review of the record, the victim’s testimony was direct, unequivocal, and sufficiently detailed in describing the abuse that had occurred. She was generally consistent in her prior statements and had no apparent motive to lie. Her account was corroborated by her being discovered entering the house late at night with Magee, an incident Magee himself admitted occurred (though in his telling it was under different circumstances). From this record, we cannot find Magee’s convictions to be “so contrary to the overwhelming weight of the evidence that to allow [them] to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). This issue is without merit.

¶ 23. AFFIRMED.

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

      . We use a fictitious name to protect the identity of the minor victim.

      . See Peterson v. State, 518 So.2d 632 (Miss. 1987).