text:
    Brian KORELITZ, Appellant v. Ruth’e KORELITZ, Appellee
    NO. 2015-CA-01758-COA
    Court of Appeals of Mississippi.
    05/09/2017
    Rehearing Denied August 29, 2017
    Certiorari Denied November 16, 2017

      ATTORNEYS FOR APPELLANT: ROBERT MARVIN PEEBLES, MATTHEW STANLEY EASTERLING, MARTY CRAIG ROBERTSON
    ATTORNEY FOR APPELLEE: AMY D. JORDAN
    BEFORE LEE, C.J., ISHEE AND . GREENLEE, JJ.
   ISHEE, J.,

FOR THE COURT:

¶ 1. In March 2006, Brian Korelitz and Ruth’e Korelitz were granted a divorce by the Madison County Chancery Court. As part of the divorce, Brian and Ruth’e entered into a written property-settlement agreement. The alimony provision of the agreement originally contained the word “periodic” six times. But after negotiations between the parties, each instance of “periodic” was stricken through and initialed by both parties. Additionally, there was a handwritten clause stating that the alimony provision of the agreement was non-modifiable. This was also initialed by both parties.

¶ 2. In August 2014, alleging a de facto marriage of Ruth’e, Brian initiated an action to terminate his alimony obligation. Alternatively, Brian asked the court to modify his alimony on the ground that he had experienced a substantial decrease in his income. The chancellor found that the alimony provision was to be classified as lump-sum alimony — -and thus not subject to modification. Brian appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. In 2006, Brian and Ruth’e agreed to an irreconcilable-differences divorce. Their agreement relating to child custody, child support, and property settlement was reflected in a document that was executed on March 2,2006.

¶ 4. The alimony provision of the agreement, which is at issue in this case, reads as follows:

A. Periodic Alimony. [Brian] agrees to pay unto [Ruth’e] as periodic alimony the monthly sum of $2,850.00 per month, beginning the first day of the month immediately following .execution. of this Agreement for a period of thirty-six (36) months, reducing to $2,600.00 for a period of thirty-six (36) months, [and] reducing to $2,100.00 for a period of thirty-six (36) months, Periodic [A]limony shall then reduce to $1,750.00 until September 1, 2019, or [Brian’s] retirement, whichever occurs later, whereupon periodic alimony shall cease. Said periodic alimony shall be payable one-half on the 1st and one-half on the 15th of each month. In addition, such periodic alimony shall cease upon'the remarriage of [Ruth’e] or upon the death of either party[,] whichever occurs first. The payments shall be deductible by [Brian] and includable as income by [Ruth’e], both for state and federal income tax purposes. [Handwritten addition as follows:] 'Said payments are further non-modifiable, except as set forth herein above.

¶5. The word “periodic” was initially inserted into the alimony paragraph six times. But, in the course of negotiations by the parties, the word was later stricken through and initialed by the parties, ■ in every place the word appeared. Also, there was a handwritten statement at the end of the alimony provision that stated: “Said payments are further non-modifíable, except as set ' forth hereinabove.” This change was also initialed by both parties.

¶ 6. Additionally, according to the terms of the agreement, Brian agreed to assure alimony payments by maintaining certain insurance policies as follows: •

A. [Brian] agrees to maintain in full force and effect a policy or policies of insurance on his life that will provide at least $400,000.00 in death benefits for the benefit of [Ruth’e] as long as he- is required to pay alimony
D. In addition, in order to assure the payment of ... alimony, [Brian] shall maintain in full force and effect disability insurance coverage providing benefits of not less than $4,200.00 per month as long as ... [Brian] is obligated to pay alimony to [Ruth’e] ....

¶7. Following the divorce, Ruth’e and Lee, the parties’ son, moved to California. While there, Ruth’e met, and began a romantic relationship with, Michael Rideout. Ruth’e and Michael cohabited in her California apartment from September 2007 to mid-February 2008.

¶ 8. In February 2008, Ruth’e and Michael left California and moved to. Hot Springs, Arkansas. They lived in separate residences, but continued their sexual relationship. Ruth’e and Michael maintained separate bank accounts, and Ruth’e was solely responsible for her home repairs, lawn, monthly utility bills, and mortgage.

¶ 9. On August 29, 2014, Brian filed a complaint. for termination 'of his alimony obligation under the agreement. Brian sought the termination on the basis that Ruth’e and Michael cohabited and entered into a de facto marriage. Alternatively, he asked the court to modify his alimony payments on the ground that since the entry of the final judgment of divorce, he had experienced a substantial decrease- in his income.

¶ 10. At the time of the judgment of divorce, Brian’s income was approximately $230,000. However, Brian later saw a reduction of his salary, and eventually lost his job, due to his employer’s budgetary problems and corporate restructuring. After his position was eliminated, his employer provided severance pay in the- sum of $190,000. And although Brian .was able to gain new employment, his new job left him making less money — an annual salary of $127,188,

¶ 11. Brian claimed that this reduction in his income left him unable to maintain his alimony payments under the terms of the original agreement. Brian unilaterally discontinued his full alimony .payments without an order of the chancery court. Specific cally, Brian reduced his -payments to $945 in September 2014, and then to $735 in April 2015. •

• ¶ 12. Ruth’e -filed an answer denying Brian’s entitlement to a modification of his alimony obligation. Ruth’e argued that the parties never intended the alimony in question to be periodic alimony, but lump-sum alimony — and not subject to modification.

¶ 13. Looking to the totality of the agreement, the chancellor found that the alimony provision was to be considered lump sum and not periodic — and thus not subject to modification. Accordingly, the chancellor found that the issues of Ruth’e’s alleged-de facto marriage, along with Brian’s reduction of income, were irrelevant. Brian now appeals.

STANDARD OF REVIEW

¶ 14. The Mississippi Supreme Court has held that an appellate court “will not. disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong [or] clearly erroneous [,] or [applied] an erroneous legal standard.” Wilburn v. Wilburn, 991 So.2d 1185, 1190 (¶ 10) (Miss. 2008). Regarding legal questions, this Court applies a de novo standard of review. Id.

DISCUSSION

I. The chancellor did not abuse his discretion in categorizing the alimony provision of the agreement as lump-sum alimony rather than periodic alimony.

¶ 15. Brian argues that the chancellor abused his discretion in categorizing the alimony provision of the agreement as lump-sum alimony rather than periodic alimony. Specifically, Brian argues that the alimony provision is ambiguous, and so must be interpreted as providing for periodic alimony, terminable upon Ruth’e’s de facto remarriage.

¶ 16. “To determine whether alimony is lump sum or periodic, we must examine the substance, without regard to labels.” Chroniger v. Chroniger, 914 So.2d 311, 314 (¶ 10) (Miss. Ct. App. 2005) (quoting Creekmore v. Creekmore, 651 So.2d 513, 518 (Miss. 1995)). “Ás a general rule, periodic alimony has no fixed termination date; instead, it automatically terminates at the death of the obligor or the remarriage of the obligee.” West v. West, 891 So.2d 203, 212 (¶21) (Miss. 2004).

¶ 17. “Lump sum alimony may be payable in a single lump sum or fixed periodic installments. Lump sum alimony is a final settlement between husband and wife and may not be changed or modified by either party, absent fraud.” Armstrong v. Armstrong, 618 So.2d 1278, 1281 (Miss. 1993). In short, periodic alimony may be modified, while lump-sum alimony “is not considered to be in the nature of continuing support, but rather a property transfer which is vested in the recipient spouse at the time said alimony is awarded.” McDonald v. McDonald, 683 So.2d 929, 931 (Miss. 1996).

¶ 18. Again, the alimony provision of the property-settlement agreement provides:

A. Periodic Alimony. [Brian] agrees to pay unto [Ruth’e] as periodic alimony the monthly sum of $2,850.00 per month, beginning the first day of the month immediately following execution of this Agreement for a period of thirty-six (36) months, reducing to $2,600.00 for a period of thirty-six (36) months, [and] reducing to $2,100.00 for a period of thirty-six (36) months. Periodic [A]limony shall then reduce to $1,750.00 until September 1, 2019, or [Brian’s] retirement, whichever occurs later, whereupon periodic ali•:;mony shall cease. Said periodic alimony .shall be payable one-half on the 1st and one-half on the 15th.of each month. In addition, such periodic alimony shall cease upon the remarriage of [Ruth’e] or upon the death of either party[,] whichever occurs first. The payments shall be deductible by [Brian] and includable as income by [Ruth’e], both for state and federal income tax purposes. [Handwrit- = ten addition as follows:] Said payments are further non-modifiable, except as set forth herein above.

¶ 19. As we believe the chancellor correctly emphasized- in his opinion, it is clear that the alimony provision has characteristics of both periodic and lümp-sum .alimony. On the one hand, it is like periodic in that the payments terminate upon the death of either party, or upon the remarriage of Ruth’e. And the payments are treated as income to Ruth’e and a deduction to Brian for income-tax purposes. On the other hand, the alimony is like lump-sum alimony in that Brian is required to pay Ruth’e fixed sums, in three consecutive thirty-six-month periods, and then at the expiration of the third thirty-six-month period, Brian is required to pay another fixed sum until September'1, 2019, or until Brian retires, whichever occurs later.

¶ 20. Brain argues that the alimony award is ambiguous, and according to In re Dissolution of Marriage of Wood, 35 So.3d 507, 513 (¶ 11) (Miss. 2010), the ambiguities should be construed against Ruth’e. “The mere fact that the parties disagree about the meaning of a provision of a contract does not make the contract ambiguous as a matter of law;” Cherry v. Anthony, Gibbs, Sage, 501 So.2d 416, 419 (Miss. 1987).

¶21. But here, when looking to the terms of the agreement, the parties’ intent is evident. The word “periodic” was initially inserted into the alimony paragraph six times. But, in the course of negotiations by the parties, the word was later stricken through and initialed by the parties, in every place the word appeared. This evidences a clear intent that the parties did not want for the alimony to be considered periodic. Moreover, the handwritten change on the agreement which states, “said payments are further non-modifiable, except as set forth herein above,” is fur-, ther evidence of the parties’ intent. Indeed, this portion, like the striking of the word “periodic,” also was initialed by both parties.

1122. Furthermore, the agreement outlines a certain payment amount, and specific payment dates. The agreement also leads- to a specified end date. What is more, Brian also agreed to assure his alimony payments by maintaining certain insurance policies. This, too, is further evidence that the alimony here is lump sum— not periodic.

¶23. Relying on Wray v. Wray, 394 So.2d 1341, 1345 (Miss. 1981), Brian also asserts that our caselaw creates a presumption toward periodic alimony when the agreement lacks clear, unequivocal language labeling the provision as lump sum. While Wray does stand for this proposition, we find here that clear and unequivocal intent — expressed by the parties’ striking of the term periodic'multiple times in the agreement — renders Brian’s reliance on this presumption misplaced.

¶ 24. Accordingly, we find that the chancellor did not abuse his discretion in categorizing the alimony provision of the agreement as lump-sum alimony rather than periodic alimony. This issue is without merit.

II. The chancellor did not abuse his discretion in denying Brian’s request for a modification of his alimony obligations on the basis of cohabitation, de facto marriage, and change in income.

¶ 25. Relying on his same argument that the alimony was periodic, Brian also argues that the chancellor abused his discretion in determining that Ruth’e’s alleged cohabitation and Brian’s reduction of income were irrelevant to the court’s consideration of Brian’s request for a modification. “In the case of lump sum alimony .., said alimony is not considered to be in the nature of continuing support, but rather a property transfer which is vested in the recipient spouse at the time said alimony is awarded.” McDonald, 683 So.2d at 931. Accordingly, due to our findings in the previous issue, considerations of Ruth’e’s alleged cohabitation, her de facto marriage, or Brian’s decrease in income are “irrelevant, given that an order for lump sum alimony provides the recipient spouse with a vested right to receive said payments.” Id. Therefore, we find that the chancellor did not abuse his discretion in denying Brian’s request for a modification of his alimony.

CONCLUSION

¶26. Reviewing the record, we find no abuse of discretion on the part of . the chancellor. Therefore, we affirm.

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

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


source: Caselaw Access Project

author: GREENLEE, J.,

license: Public Domain

text:
    Annie Y. GRIFFIN and Frederick Griffin, Appellants v. ABN AMRO MORTGAGE GROUP, INC., Its Affiliates, Heirs, and Assigns, Morris & Associates, Emily K. Courteau, Individually and in Her Capacity as Substituted Trustee on the Deed of Trust, and CitiMortgage Inc., as Successor in Interest to ABN, Appellees
    NO. 2015-CP-01237-COA
    Court of Appeals of Mississippi.
    05/16/2017
    Rehearing Denied August 29, 2017
    Certiorari Denied November 2, 2017

      ATTORNEYS FOR APPELLANTS: FREDERICK GRIFFIN (PRO SE) ANNIE Y. GRIFFIN (PRO SE)
    ATTORNEYS FOR APPELLEES: BRADLEY BARRON VANCE RICHARD CARLTON KELLER MICHAEL ALAN JEDYNAK
    BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.
   GREENLEE, J.,

FOR THE COURT:

¶ 1. Annie and Frederick Griffin stopped paying their mortgage following a disagreement with their mortgage provider over modified loan terms. In 2007, they sued their mortgage carrier, ABN, in the Chancery Court of DeSoto County (Griffin I), alleging fraud as well as violations of the Fair Debt Collection Practices Act (FDCPA) and the Truth in Lending Act (TILA). The case was removed to federal court, and in 2012 the district court dismissed the action for failure to prosecute. The court’s order noted that it had previously warned the Griffins that dismissal for failure to prosecute was imminent if the case did not move forward, and also noted that the Griffins appeared to be engaged in a deliberate strategy of extending the life of the litigation indefinitely. After the case was dismissed, the Griffins filed a new, substantially identical complaint in DeSoto County Chancery Court {Griffin II). Griffin II was dismissed on the ground of res judicata. The Griffins appeal the dismissal of Griffin II to this Court. Finding no error, we affirm.

FACTS AND PROCEEDINGS BELOW

¶2. In Griffin I, the defendant mortgage company sought to compel arbitration after being sued by the Griffins over modified loan terms. The motion to arbitrate was granted, but the case was remanded back to federal court in June 2010 after the designated arbitrator withdrew from the consumer arbitration business. In March 2011, the Griffins filed a motion to declare the arbitration agreement unenforceable. To move the litigation along, the defendants filed a motion to withdraw their request to compel arbitration, consenting to proceed in court. The district court granted the motion.

¶ 8. The Griffins then filed a pro se motion objecting to the court’s grant of the defendants’ withdrawal of the request to compel arbitration. The Griffins objected to the motion being granted prior to their having an opportunity to respond (even though the Griffins had a standing motion to find the arbitration agreement unenforceable), and then proceeded to argue that the mortgage contract bound both parties to resolve disputes by arbitration.

¶ 4. On May 23, 2012, the district court entered an order on its own motion dismissing the case for failure to prosecute. The court, in a detailed order, traced the Griffins’ shifting legal arguments and came to the conclusion that “[i]t appears to this court that plaintiffs view this lawsuit not as something to be actually litigated, but, rather, as something to be kept alive indefinitely, even at the cost of taking a position that is fundamentally inconsistent with the one they have taken for years in this case.”

¶ 5. In January 2014, following the dismissal of the case from the federal court, the Griffins filed, a new complaint pro se in the Chancery. Court of DeSoto County CGriffin II). The new complaint asserted the same causes of action arising out of the same factual circumstances as those asserted in Griffin I. After various procedural actions including a removal to and then remand back from federal court, as well as reassignment to a different chancellor, the chancery court granted the defendants’ motion to dismiss Griffin II on the ground of res judicata.

¶ 6. The Griffins appeal pro se.

DISCUSSION

¶ 7. “The appropriateness of application of the doctrine of res judicata is a question of law” and will therefore be reviewed de novo. Swaney v. Swaney, 962 So.2d 105, 108 (¶ 11) (Miss. Ct. App. 2007).

¶ 8. We agree with the chancellor that Griffin II is properly barred under the doctrine of res judicata. The doctrine of res judicata has four identities:. (1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom the claim is made. Harrison v. Chandler-Sampson Ins., 891 So.2d 224, 232 (¶24) (Miss. 2005).

¶ 9. All four identities are met in the case at hand. The factual allegations in the complaint of Griffin II were copied almost verbatim from the complaint of Griffin I, and with the exception of dropping a couple of claims (the FDGPA and TILA claims), the complaint reasserts the same claims of fraud. All parties present in Griffin I were also present in Griffin II.

¶ 10. In addition to those four identities, to qualify as res judicata the prior judgment must have been a final judgment on the merits. Anderson v. LaVere, 895 So.2d 828, 833 (¶ 10) (Miss. 2004). Under both Mississippi and Federal Rule of. .Civil Procedure 41(b), dismissal for failure to prosecute operates as a final judgment and dismissal is with prejudice. An exception is found in Mississippi Rule of Civil Procedure 41(d), which provides that where dismissal is made by the clerk following twelve months of docket inactivity, that dismissal is without prejudice. See Strickland v. Estate of Broome, 179 So.3d 1088, 1094 (¶ 18) (Miss. 2015). But the case at hand does not -fall under Rule 41(d), but rather falls under Rule 41(b). Prior to dismissal, the Griffins were put on notice by the district judge that the case would be dismissed for failure to prosecute if the litigation did not move forward in a meaningful way. The Griffins responded by shifting their legal position in order to avoid trying the merits of the case. The district court’s dismissal of the action was not only appropriate for failure to prosecute, but was also consistent with the Griffins’ new argument that the case should not be tried in court at all but rather arbitrated.

1111. The remaining issues the Griffins raise on appeal are also without merit. The Griffins filed a petition for review in the Mississippi Supreme Court under Mississippi Rule of Appellate Procedure 21, objecting to an administrative reassignment of their case to a different chancellor by the court clerk. This motion was denied by order on November 4, 2015, and the Griffins did not file a motion for reconsideration within fourteen days as required by Mississippi Rule of Appellate Procedure 27(h)(5). The Griffins also argue that the chancery court erred in failing to rule on the defendants’ motion to transfer the case to circuit court — -a motion the Griffins opposed and which the defendants withdrew. The Griffins have cited no legal basis, nor can we find any, indicating how the Griffins were conceivably prejudiced by the chancery court failing to rule on a transfer motion that the Griffins opposed and that was withdrawn by the defendants. These issues are without merit.'

CONCLUSION

¶ 12. We agree with the district court’s observation • that the Griffins’ appear ■ engaged in a strategy of deliberately prolonging litigation against their mortgage company without any intent to actually reach the merits Of their claims, The dismissal of Griffin I for failure to prosecute operated as a final judgment on the merits, and the Chancery Court of DeSoto County appropriately dismissed •' Griffin II as barred by the doctrine of res judicata.

¶ 13. THE JUDGMENT OF THE CHANCERY COURT OF DESOTO COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS,

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

      . At this point in the litigation the court granted the Griffins’ attorney’s request to withdraw. The attorney represented to the court:
      The undersigned attorney is no longer able to effectively communicate with the Plaintiffs concerning the litigation of this case .... The clients in this matter insist on pursuing objectives that the undersigned considers to be imprudent and providing the undersigned with instructions that are inconsistent with the undersigned’s professional advice.


text:
    DHEALTHCARE CONSULTANTS, INC., Appellant v. JEFFERSON COUNTY HOSPITAL, Appellee
    NO. 2015-CA-01440-COA
    Court of Appeals of Mississippi.
    05/16/2017
    Rehearing Denied August 29, 2017
    Certiorari Denied November 30, 2017

      ATTORNEYS FOR APPELLANT: SUZANNE GRIGGINS KEYS, CRYSTAL WISE MARTIN,, NAKESHA MCQUIRTER WATKINS, RATOYA JA-NAE GILMER, SHERRY MURIEL FLOWERS, MARTIN D. PERKINS
    ATTORNEYS FOR 'APPELLEE: CARROLL RHODES, DEBORAH MCDONALD
    BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.
   GREENLEE, J.,

FOR THE COURT:

¶ 1. This is a breach-of-contract ease involving a public body and' a private entity. The circuit court determined that contracts between Jefferson County Hospital (JCH) and Dhealthcare Consultants Inc. were unenforceable because the terms and conditions of the contracts were not included in the minutes of the JCH Board of Trustees, nor was a copy attached to the minutes. Based on that finding, the circuit court entered a judgment in favor of JCH on the breach-of-contract claim. Aggriéved, Dhealthcare appeals to this Court asserting the contracts were enforceable. Finding no error, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 2. JCH is a community hospital created pursuant to Mississippi Code Annotated sections 41-13-10 and —29 (Rev. 2013), owned by Jefferson County, and governed by a Board of Trustees (Board). The Board is appointed by the Board of Supervisors of Jefferson County. At the pertinent time, Jerry Kennedy served as the hospital administrator. The Board authorized Kennedy to execute agreements with Dhealthcare for consultation services on August 13, 2008, and again on January 14, 2009. To the best this Court can ascertain, on March 20, 2012, the Board voted to terminate JCH’s contracts with Dhealth-care. On May 22, 2012, Dhealthcare filed a breach-of-contract claim against JCH. After a litany of motions and lengthy discovery, a bench trial was held on October 7, 2014, and February 9, 2015. On August 25, 2015, the circuit court issued its findings of fact and conclusions of law in which it. found that neither contract was valid or enforceable because there were no terms or conditions of either contract contained within the minutes of the Board. On September 18, 2015, Dhealthcare appealed the circuit court’s decision to this Court.

DISCUSSION

¶ 3. We review questions of law de novo. Humphreys Cty. Mem’l Hosp. v. Griffin, 170 So.3d 612, 614 (¶7) (Miss. Ct. App. 2015). Questions of fact stemming from a bench trial are reviewed for whether the trial court’s findings of fact are supported by substantial, credible, and reasonable evidence. City of Jackson v. Presley, 40 So.3d 520, 522 (¶ 9) (Miss. 2010).

¶4. On appeal, Dhealthcare asserts (1) that the contracts are enforceable because, though not spread in the minutes, they were maintained elsewhere for the public to view; (2) that the contracts were valid because the Board knew of the contracts and ratified them; (3) that the doctrine of equitable estoppel applies; and (4) that JCH breached the contracts.

I. Whether a contract was sufficiently evidenced on the minutes.

¶ 5. The law in Mississippi is well established that public boards speak only through their minutes and their actions are evidenced solely by entries on the minutes. Wellness Inc. v. Pearl River Cty. Hosp., 178 So.3d 1287, 1290-91 (¶ 9) (Miss. 2015) (citing Thompson v. Jones Cty. Cmty. Hosp., 352 So.2d 795, 796 (Miss. 1977)).

¶ 6. Further, where a public board enters into business with another entity, a contract must be recorded on the official minutes of the board and stated in express terms. Id. at 1291 (¶ 9). However, a contract, though not spread on the minutes in its entirety, may still be enforced “where enough of the terms and conditions of the contract are contained in the minutes for determination of the liabilities and obligations of the contracting parties without the necessity of resorting to other evidence,” Id. at (¶ 10). Ultimately, though, it is the responsibility of the non-board-contracting entity to “ensure that the contract is sufficiently spread upon the minutes of the board.” Id.

¶7. This Court recently addressed the issue of a contract not being sufficiently contained in a board’s minutes in Kennedy v. Claiborne Cty. Miss., ex rel. Bd. of Sup’rs, No. 2015-CA-01397-COA, 233 So.3d 825, 2017 WL 590041 (Miss. Ct. App. Feb. 14, 2017). There, the same hospital administrator as in this appeal presented a strikingly similar factual background to the case now before us and asserted claims similar to those asserted by Dhealthcare here. This Court held that the terms and conditions of Kennedy’s employment contract were not sufficiently spread in the minutes for the contract to be enforceable. Like in Kennedy, upon review of the laws, we hold the same here, upholding the circuit court’s dismissal.

a. Whether the contracts were attached to the minutes.

¶8. Dhealthcare first argues that the contracts were attached to the minutes and are therefore enforceable. Dhealtchare asserts that all contracts for the hospital were kept in the contract book in Kennedy’s office — also where the minute book was kept — which made them sufficiently available to the public and, thus, sufficiently a part of the minutes. It was conceded that the contracts were never in the minute book or attached to the minutes at any time. However, placing a contract in a book other than the minute book or in a person’s office is insufficient to meet the minutes requirement. See Lange v. City of Batesville, 972 So.2d 11, 19 (¶ 10) (Miss. Ct. App. 2008) (“[T]he action taken will be evidenced by a written memorial entered upon the minutes at the time, and to which all the public may have access to see what was actually done.” (quoting Thompson, 352 So.2d at 796)).

¶ 9. The trial court considered the storage location of the contracts and concluded that no copy of either contract was attached to the minutes. We find the trial court’s finding to be supported by substantial, credible, and reasonable evidence. Thus, we find this issue is without merit,

b. Whether the. minutes sufficiently evidence a contract.

¶ 10. Here, the Board’s minutes contain two references to the contracts at issue. On August 13, 2008, the Board’s minutes state:

Mr. Kennedy recommended the Board of Trustees approve the Contract with Dhealthcare Consultants Incorporated, to provided advertising and recruiting consultation services to the Inpatient Psychiatric Treatment Program. Much discussion followed. Ms. Shirley Ellis motioned that the Board approve and enter into contract agreement with Dhealthcare Consultants, Inc., effective September 1, 2008, and the Board authorize the Administrator to sign the agreement. Seconded by Mr. Willie Hed-rick. Motion [d]ebated. All members present voted yes. Motion passed.

On January 14, 2009, the Board’s minutes state:

Rev. Tracy Collins motioned that the Board of Trustees accept, approve, and enter into the Outpatient Psychiatric Program and Inpatient Acute Care Consulting Agreement with Dhealthcare Consultants Incorporated, effective February 2, 2009 and the Board authorizes the Administrator, Mr. Jerry KennedyL] to sign the agreement. Seconded by Mr. Willie Hedrick. Motion debated fully. All members present voted yes. Motion passed.

In the instant case, the minutes from the Board’s meetings do not set forth a single term or condition establishing any liabilities or obligations of either party, any amount to be paid, or any actual services to be performed, nor is either contract spread across any public roll.

¶ 11. In support, • Dhealthcare cites six cases in which the court found a contract was sufficiently evidenced in the minutes. Cheatham v. Smith, 229 Miss. 803, 92 So.2d 203 (1957) (superseded by statute); Stokes v. Newell, 174 Miss. 629, 165 So. 542 (1936); Dixon v. Greene Cty., 76 Miss. 794, 25 So, 665 (1899); Marion Cty. v. Foxworth, 83 Miss. 677, 36 So. 36 (1904); Griffin, 170 So.3d 612; Cmty. Extended Care Ctrs. Inc. v. Bd. of Sup’rs for Humphreys Cty., 756 So.2d 798 (Miss. Ct. App. 1999). In all of the cases cited by Dhealth-care, there was more recorded in the minutes or in the public record than there is in the case before us. As such, we find none of them to be persuasive.

¶ 12. Therefore, without more than two entries stating only that the Board authorized Kennedy to enter into contracts with Dhealthcare, we cannot find that the contracts are legally enforceable. Thus, we find' this issue is without merit.

II. Whether equitable estoppel applies.

¶ 13. Dhealthcare further asserts that the trial court should have applied the doctrine of equitable estoppel. But in Mississippi there is no estoppel against a-public body unless a valid contract is duly entered upon the minutes, which binds that public body. Butler v. Bd. of Sup’rs for Hinds Cty., 659 So.2d 578, 582 (Miss. 1995) (quoting Colle Towing Co. v. Harrison Cty., 213 Miss. 442, 57 So.2d 171, 172-73 (1952)). Strict adherence to having a writing placed on the minutes in order to bind a public body is a longstanding policy. See Bridges & Hill v. Bd. of Sup’rs of Clay Cty., 58 Miss. 817, 820 (1881). Here, there is no writing upon the minutes binding the Board to Dhealthcare. Thus, we find this issue is without merit. Thus after finding as above, neither the circuit court nor this appellate court has a valid contract to enforce. That issue is also without merit.

CONCLUSION

¶ 14. We affirm the circuit court’s judgment finding that there was not a valid or enforceable contract between Dhealthcare and JCH.

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

LEE, C. J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, WILSON AND WESTBROOKS, JJ., Concur, carlton, j., not PARTICIPATING.

      , Kennedy has since been terminated by JCH as the hospital administrator. He later filed a' wrongful-termination suit, along with other ■ claims, in federal court. See Kennedy v. Jefferson Cty., Miss., ex rel. Bd. of Sup’rs, No, 5:13-CV-226-DCB-MTP, 2015 WL 4251070 (S.D. Miss. July 13, 2015). Kennedy also had an appeal before this Court dealing with a strikingly similar situation to that asserted by Dhealthcare here. Kennedy v. Claiborne Cty., Miss., ex rel. Bd. of Sup'rs, No. 2015-CA-01397-COA, 233 So.3d 825, 2017 WL 590041 (Miss. Ct. App. Feb, 14, 2017).

      . The services offered by Dhealthcare centered around recruiting patients for JCH's ■ inpatient and outpatient psychiatric-treatment , programs.


author: IRVING, P.J.,

text:
    Louis J. CLAY, Jr. a/k/a Louis Clay a/k/a Spoola Boo a/k/a Louis Clay, Jr. a/k/a Lewis Clay a/k/a Louis James Clay, Jr., Appellant v. STATE of Mississippi, Appellee Louis J. Clay, Jr. a/k/a Louis Clay a/k/a Spoola Boo a/k/a Louis Clay, Jr. a/k/a Lewis Clay a/k/a Louis James Clay, Jr., Appellant v. State of Mississippi, Appellee
    NO. 2015-CP-01843-COA CONSOLIDATED WITH NO. 2016-CP-00020-COA
    Court of Appeals of Mississippi.
    05/16/2017
    Rehearing Denied August 29, 2017
    Certiorari Denied November 16, 2017

      ATTORNEY FOR APPELLANT: LOUIS J. CLAY JR. (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JEFFREY A. KLINGFUSS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT
   NATURE OF THE CASE: CIVIL— POST-CONVICTION RELIEF

NATURE OF THE CASE: POST-' CONVICTION RELIEF

IRVING, P.J.,

FOR THE COURT:

¶ 1. Louis Clay '-Jr; appeals the Wilkinson County Chancery Court’s judgment dismissing his petition for writ of error coram nobis for lack of subject-matter jurisdiction. Clay also appeals the Wilkinson County Circuit Court’s judgment denying his motion to expunge three 1979 convictions for selling marijuana. Finding no error, we affirm both judgments.

FACTS

¶2. In September 1979, Clay pleaded guilty to three separate charges of selling marijuana in cause numbers 3951, 3952, and 3956. For each conviction, the Wilkinson County Circuit Court sentenced him to concurrent terms of three years in the custody of the Mississippi Department of Corrections (MDOC), with six months to serve, followed by five years of post-release supervision. In 1984, MDOC filed a petition to terminate Clay’s probation because he had “completed his five[-]year probationary sentence.” MDOC requested that the circuit court terminate Clay’s probation and discharge him. On the same day that MDOC filed its petition, the circuit court entered a discharge order related to all three of Clay’s 1979 convictions. The circuit court also entered an “order to expunge,” which stated that it was in response to MDOC’s petition. The “order to expunge” further stated that Clay had “satisfactorily completed his five[-]year probationary sentence, and it is ordered that such sentence be ... expunged from [Clay’s] record.” Although the “order to expunge” referred to a singular sentence, the style of the document reflects that it pertained to all three of Clay’s 1979 cases.

¶ 3. In November 1996, Clay was indicted for aggravated assault. He was also charged as a nonviolent habitual offender based on his 1979 convictions. Clay was later convicted of aggravated assault and sentenced as a habitual offender. Clay v. State, 829 So.2d 676, 678 (¶ 1) (Miss. Ct. App. 2002). This Court affirmed the circuit court’s judgment. Id. at 688 (¶ 33). In so doing, we held that “Clay’s argument that double jeopardy [had] occurred in the [circuit court’s finding [that he qualified for sentencing as a] habitual offender [failed].” Id. at 687 (¶ 29).

¶ 4. Since then, Clay has filed numerous unsuccessful applications for leave to file a motion for post-conviction relief (PCR) related to his aggravated-assault conviction. In September 2014, the Mississippi Supreme Court entered an order denying what it described as Clay’s seventh application. Clay v. State, 2014-M-00016. Citing Floyd v. State, 155 So.3d 883, 890 (¶ 19) (Miss. Ct. App. 2014), Clay had unsuccessfully requested leave to claim that he was not a habitual offender because his three 1979 convictions should have been considered one conviction. Having previously warned Clay twice about filing frivolous documents, the supreme court found that Clay’s seventh application was also frivolous, so the supreme court sanctioned Clay $100.

¶ 5. On June 29, 2015, Clay filed a “writ of error coram nobis” in the Wilkinson County Chancery Court. Clay wanted the chancellor to command the circuit court to examine the record regarding a number of PCR claims, or send the record to an appellate court so it could examine the record. Treating Clay’s petition as a PCR motion, the chancery court found that it' lacked subject-matter jurisdiction. Furthermore, because Clay had not obtained the supreme court’s leave to file a PCR motion, the chancery court held that it could not transfer Clay’s petition to the circuit court. Consequently, the chancellor dismissed Clay’s PCR motion. Clay’s appeal has been docketed as Clay v. State, 2016-CP-00020-COA.

¶ 6. Approximately one month after he filed the “writ of error coram nobis” in the chancery court, Clay filed á “motion for automatic expunction” in the circuit court. Clay sought to expunge his. three 1979 convictions, and he again argued that they should count as one conviction as set forth in Floyd. Clay then reasoned that those three- ■ convictions — treated as one per Floyd — were his first conviction, so the circuit court should expunge it. On November 20, 2015, the circuit court denied Clay’s motion. Clay has appealed that decision, as well. It has been docketed as Clay v. State, 2015-CP-01843-COA, Based on their shared procedural history and related subject matter, we have consolidated Clay’s two appeals.

DISCUSSION

I. Jurisdiction

¶ 7. In his petition for writ of error coram nobis, Clay argued that (1) Judge Forrest Johnson should have recused from his aggravated-assault trial; (2) he is not a habitual offender based on Floyd; (3) because Judge Lillie Blackmon Sanders had recused, she lacked authority to appoint Judge Johnson to preside over the aggravated-assault trial; (4) Judge Johnson 'improperly allowed his trial counsel, Gus Ser-mos, “to withdraw after filing Clay’s notice of appeal, but prior to him filing a direct appeal,” and he “was stripped of -his appointed counsel” before he filed a direct appeal brief; (5) the habitual-offender portion of the aggravated-assault charge was defective because it did not specify that Clay had sold marijuana; and (6) the aggravated-assault indictment was defective. Clay reiterates those claims on appeal. However, the operative question is whether the chancellor had subject-matter jurisdiction.

¶ 8. “[Wjhether the chancery court had jurisdiction to hear a particular matter is a question of law that we review de novo.” Copple v. State, 196 So.3d 189, 191 (¶ 6) (Miss. Ct. App. 2016). “Subject-matter jurisdiction is a threshold inquiry that inust be resolved before the court adjudicates the merits of a case.” Id. at (¶ 7) (quoting Knox v. State, 75 So.3d 1030, 1034 (¶10) (Miss. 2011)).'“When, as here, there is a facial attack on subject-matter jurisdiction, the allegations in the [prisoner’s petition] are taken as true. However, when a [prisoner’s allegations of jurisdiction are questioned, the [prisoner] bears the burden to prove jurisdiction by a preponderance of the evidence.” Id.

¶9, When the Mississippi Legislature enacted the Mississippi Uniform Post-Conviction Collateral Relief Act (UPCCRA), it abolished the common-law writ of error coram nobis and made such relief available exclusively through the UPCCRA. Miss. Code Ann. § 99-39-3(1) (Rev. 2015). “[A]nd the purpose of th[e UPCCRA] is to provide prisoners -with a procedure, limited in nature, to review those objections, defenses, claims, .questions, issues[,] or errors which in practical reality could not be or should not have been raised at trial or on direct appeal.” Miss. Code Ann. § 99-39-3(2) (Rev. 2015). Moreover, because all of Clay’s claims were collateral attacks on his' aggravated-assault conviction or sentence, he was obligated to raise them in a PCR motion. See Miss. Code Ann. § 99-39 — 5(l)(j) (Rev.- 2015) (A prisoner must file a PCR motion, if he claims “[t]hat the conviction or sentence is otherwise subject to collateral attack upon any grounds of alleged error heretofore available under any common law, statutory, or other writ, motion, petition, proceeding[,] or .remedy”).

¶ 10. “Claims cognizable under the UPCCRA are outside the equity jurisdiction of the chancery court.” Copple, 196 So.3d at 193 (¶ 14). Generally, a chancery court is obligated to transfer a case to circuit court if the case is under the circuit court’s exclusive jurisdiction. Miss. Const, art. 6, § 162. But because Clay’s aggravated-assault conviction had been affirmed on direct appeal, and he had not fulfilled his obligation to obtain leave from the supreme court to file a PCR motion, the chancery court could not transfer Clay’s petition for writ of error coram nobis. See Miss. Code Ann. § 99-39-7 (Rev. 2015). “This procedure is not merely advisory, but jurisdictional.” Copple, 196 So.3d at 193 (¶ 14) (quoting Dunaway v. State, 111 So.3d 117, 118 (¶ 6) (Miss. Ct. App. 2013)). The chancery court could not have transferred Clay’s PCR motion without circumventing section 99-39-7. Thus, the chancery court did not err when it dismissed Clay’s PCR motion for lack of subject-matter jurisdiction.

II, Expungement

¶11. Clay argues that .the .circuit court erred when it denied his motion to expunge his three 1979 convictions for selling marijuana. Clay’s three 1979 convictions .were not eligible for expungement. Clay claimed his 1979' convictions should be expunged under three different statutes. One was Mississippi Code Annotated section 41-29-150 (Rev. 2013). But section 41-29-150(d)(l) provides for expungement of certain offenses only if there-has-not been an “adjudication of guilt.” That clearly did not occur regarding Clay’s three 1979 convictions. The circuit court accepted his guilty pleas, sentenced him for, .each of the three charges, and did not withhold adjudicating ■ Clay guilty of each charge.

¶ 12. Clay’s reliance on Mississippi Code Annotated section 99-15-57(1) (Rev. 2015) is also misplaced. Section 99-15-57(1) allows one to apply for expunction of certain offenses following a guilty plea, but only if the guilty plea occurred “within six .,. months prior to March 31, 1983[.]” All three of Clay’s guilty pleas occurred on September 19, 1979. It follows that Clay was not eligible for relief under section 99-15-57(1). See Caldwell v. State, 564 So.2d 1371, 1373 (Miss 1990) (holding that a prisoner who had pleaded guilty on October 9, 1979, was ineligible for relief under section 99-15-57(1)).

‘ ¶ 13. Finally, Clay claimed his three-1979 convictions should be expunged under Mississippi Codé'Annotated section 99-19-71 (Rev. 2015). Section 99-19-71(2)(a) does not contemplate expunction of .any offense related to the sale of a controlled substance. Section 99-19-71(2)(b) states that someone who was younger than’twenty-one years old when he committed a felony may request expungement of a single conviction after a time. But Clay was twenty-seven when he entered his three 1979 guilty pleas. Thus, none of those convictions were eligible for expungement under section 99 — 19—71 (2) (b). Even if Clay would have been eligible based on his age, section 99-19~71(2)(b) provides a circuit court with the discretion to. decline, to expunge “any felony that, in the determination of the circuit court, is related to the distribution of a controlled substance ..., ” Id. All of Clay’s 1979 convictions were, related to selling a controlled substance. Consequently, we-find no merit to Clay’s claim that the circuit court erred when it denied his motion to expunge all three of his 1979 convictions.

III. Recusal

1i 14. Clay argues that the circuit judge should have recused from his aggravated-assault trial. Clay asserted that claim in his November 9, 2015 petition for writ of mandamus seeking the circuit court’s ruling on his “motion for automatic expunction.” Clay also asserted that Judge Johnson should have to recuse from consideration of the expungement motion. On January 12, 2016, the supreme court entered an order dismissing Clay’s mandamus petition because the circuit court had ruled on the expungement motion, and Clay had appealed. The supreme court also stated that Clay “can raise the recusal issue in his appeal.”

¶ 15. It appears that Clay has misinterpreted the supreme court as though it has given him permission to claim that the circuit judge should have recused from the aggravated-assault trial. However, the supreme court only held that Clay could raise his claim that the circuit judge should have recused from hearing the ex-pungement motion. Clay has not raised that issue on appeal. We do not interpret the supreme court’s order as giving Clay permission to claim that the circuit judge should have recused from the aggravated-assault trial. That is a collateral attack on his aggravated-assault conviction, which would require a successful application for leave to file a PCR motion. Because Clay never obtained leave to file a PCR motion on that basis, and the issue was never presented to the circuit court, we find that it is procedurally barred.

CONCLUSION

¶ 16. Because the chancery court lacked subject-matter jurisdiction, the chancery court did not err when it dismissed Clay’s petition for writ of error coram nobis. Additionally, the circuit court did not err when it denied Clay’s petition to expunge his three 1979 convictions. Finally, the Mississippi Supreme Court did not give Clay leave to claim that Judge Johnson should, have recused from Clay’s 1996 aggravated-assault trial. Instead, the supreme court gave Clay permission to claim that Judge Johnson should have recused from hearing the motion to expunge his 1979 convictions. Accordingly, we affirm the chancery court’s and the circuit court’s judgments.

¶ 17. THE JUDGMENTS OF THE WILKINSON COUNTY CHANCERY COURT AND THE WILKINSON COUNTY CIRCUIT COURT ARE AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WILKINSON COUNTY. ■ ,

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

      . See Clay v. State, 168 So.3d 987 (Miss. Ct. App. 2013); Clay v. State, 2010-M-01521; Clay v. State, 2009-TS-00171; Clay v. State, 2007-M-00888; Clay v. State, 2006-M-01192; Clay v. State, 2005-M-02010; Clay v. State, 2003-M-02117.

      . Clay clearly misunderstood the historical and outdated purpose of a petition for writ of error coram nobis. "Literally, ‘coram nobis’ means 'our court,’ or ‘before us.' Therefore, the writ of error coram nobis was addressed to the very court [that] had rendered the judgment rather than to an appellate or other reviewing court." State v. Mixon, 983 S.W.2d 661, 667 (Tenn. 1999) (emphasis added) (citing Black's Law Dictionary 304 (5th ed.1979)). "Since neither the right to move for a new trial nor the right to appeal were recognized at common law, the writ of error coram nobis was developed as a procedural mechanism to allow courts to provide relief under limited circumstances.” Id. at 666-67 (footnote omitted) (citing Morgan Prickett, Writ of Error Coram Nobis in California, 30 Santa Clara L. Rev. 1, 3 (1990)).