author: COLEMAN, JUSTICE, FOR THE COURT: KING, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

text:
    William Donald COLLINS, Sr., Mary Skinner Collins, William Donald Collins, II, Colt Makai Collins and Lisa Marie Collins v. CITY OF NEWTON, Mayor David Carr, individually and in his official capacity as Mayor of the City of Newton, Clarence Parks, individually and in his official capacity as Fire Chief for the City of Newton, Joel Skinner, individually and in his official capacity as Former Fire Chief for the City of Newton, Murray Weems, individually and in his official capacity as Alderman for the City of Newton, and Ronnie Johnson, individually and in his official capacity as Alderman for the City of Newton
    NO. 2017-CA-00137-SCT
    Supreme Court of Mississippi.
    March 8, 2018 Rehearing Denied May 10, 2018
    ATTORNEY FOR APPELLANTS: JOEL W. HOWELL, III
    ATTORNEYS FOR APPELLEES: JAMES CORNELIUS GRIFFIN, J. RICHARD BARRY, BRIAN DOUGLAS MAYO
    EN BANC.
   COLEMAN, JUSTICE, FOR THE COURT:

¶ 1. Several members of the Collins family sued the City of Newton and several of its officials alleging wrongful termination, intentional infliction of emotional distress, negligent infliction of emotional distress, slander, and reckless disregard of property. The defendants filed a motion for summary judgment, which the trial court denied. After a new judge was assigned to the case, the defendants filed a motion for relief or reconsideration of the denial of summary judgment under Mississippi Rule of Civil Procedure 60 ; the trial court granted the Rule 60 relief. The Collinses appeal from the trial court's order granting summary judgment in favor of the defendants. Discerning no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. The plaintiffs are members of a firefighting family. William Donald Collins Sr. is the patriarch of the family. Mary Collins, Donald's wife, is the matriarch. Donald was a volunteer firefighter with the City of Newton Fire Department for more than thirty years. Mary never has had any type of employment relationship with the Fire Department. Donald and Mary have three adult sons, William Donald "Donnie" Collins II, Jay Collins, and Colt Collins. Donnie and Colt were full-time, paid firefighters with the Fire Department in 2012, when the events at issue occurred. Jay also was a full-time, paid, firefighter with the Fire Department and remains so. Colt is married to Lisa Collins, who was a volunteer firefighter with the Fire Department in 2012.

¶ 3. The Collinses claim that problems began in 2009, when the firefighters voted that Donnie be their chief over the then-current Chief Bounds. The Board of Aldermen ratified the vote, and Mayor David Carr vetoed the ratification. The Board overturned Mayor Carr's veto. Mayor Carr obtained an ethics opinion regarding Donnie being his brothers' boss, and the Board then declined to accept Donnie as fire chief. Donnie was made assistant chief and Walter Gordon was hired as chief. After Chief Gordon left, sometime in early 2012, Clarence Parks was hired as chief. On June 20, 2012, Chief Parks distributed a letter to all Fire Department personnel, Mayor Carr, and the Board, declaring every rank, position, and title in the Fire Department vacant, effectively stripping all firefighters of their ranks. Shortly thereafter, around July 3, 2012, Joel Skinner was made interim chief. Skinner is Mary's brother's son; thus he is Donald's and Mary's nephew and first cousin to Donnie and Colt. Around July 5, 2012, after an argument with Skinner in a meeting, Donald was terminated from the Newton Fire Department. On about July 18, 2012, Donnie and Colt were terminated from the Newton Fire Department, and Lisa was terminated about July 23, 2012.

¶ 4. On July 21, 2012, Donald's and Mary's home was struck by lightning, caught fire, and burned. The home was a total loss. No one was injured. The Collinses claim that, during the fire, Interim Chief Skinner did several things incorrectly. Interim Chief Skinner allegedly did not have a sufficient number of firefighters to fight the fire adequately. Furthermore, the Collinses allege that the lack of commanding officers due to the elimination of all ranks led to inadequate firefighting, that Interim Chief Skinner sent firefighters away from the scene of the fire, that he fought the fire from the front when it should have been attacked from the back, that he lacked the experience to be interim chief, and that he ordered several of the Collinses to leave the scene instead of allowing them to help.

¶ 5. In July 2013, Donald and Mary, Donnie, Colt, and Lisa sent notices of claims to the City of Newton. On October 29, 2013, Donald and Mary filed a complaint against the City of Newton, Mayor Carr, former Fire Chief Parks, Former Fire Chief Skinner, three of the aldermen for the City of Newton, and several John Does. In their complaint, Donald and Mary alleged wrongful termination, infliction of emotional distress, slander, and failure to respond properly to the fire at their home. They alleged that, due to the personnel changes, the Fire Department was unable to respond properly to emergencies, thereby endangering the safety of the public and property of the City of Newton. On the same day, Donnie, Colt, and Lisa each filed separate complaints against the same defendants. Each alleged wrongful termination, infliction of emotional distress, and slander. The four cases eventually were consolidated.

¶ 6. After discovery, the defendants moved for summary judgment. The trial court, Judge Marcus Gordon presiding, denied the motion. The defendants moved to alter or amend the judgment under Rule 59, and the trial court denied the motion. The defendants petitioned the Court for interlocutory appeal, and the Court declined to accept the appeal and remanded the case. Upon remand, Judge Gordon had left the bench. The case was assigned to Judge Vernon Cotten. The defendants then filed a motion for relief from order or reconsideration pursuant to Rule 60. The trial court granted the motion and dismissed the case.

¶ 7. The Collinses appeal, arguing that the court erred by revisiting the motion for summary judgment under Rule 60 and by inappropriately revisiting a prior order by another trial judge. They further argued that, even if it was appropriate to revisit the prior order, summary judgment was inappropriate.

ANALYSIS

I. Standard of Review

¶ 8. The Court reviews legal issues de novo . Caves v. Yarbrough , 991 So.2d 142, 146 (Miss. 2008). Thus, the Court reviews the Rule 60 argument and whether it was appropriate for a successor judge to revisit a prior order de novo .

¶ 9. The Collinses argue that if the merits of summary judgment are reached, the Court should review the case under the de novo standard for summary judgment, as the substance of the order is to grant the motion for summary judgment. The defendants argue that the Court should review the case under an abuse of discretion standard, as granting or denying relief under Rule 60 typically is reviewed for an abuse of discretion.

¶ 10. Although the standard of review was not specifically discussed, cases with a similar procedural posture have been reviewed under the de novo summary judgment standard. See Holland v. Peoples Bank & Trust Co. , 3 So.3d 94 (Miss. 2008) (a motion for summary judgment was denied, defendants filed a motion for reconsideration, a new trial judge granted the motion for reconsideration, the Court reviewed the decision under the summary judgment standard); Duckworth v. Warren , 10 So.3d 433, 436-37 (Miss. 2009). The substance of the order is that it grants the defendants' motion for summary judgment, thus the Court will review the merits under the summary judgment standard.

¶ 11. The Court reviews a trial court's grant or denial of summary judgment de novo . Crosthwait v. Southern Health Corp. of Houston, Inc. , 94 So.3d 1070, 1073 (Miss. 2012). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact[.]" Miss. R. Civ. P. 56(c). The evidence must be viewed in the light most favorable to the opposing party. Duckworth , 10 So.3d at 436-37.

II. The Trial Court's Authority

¶ 12. The Collinses argue that Rule 60 applies only to final orders, and that the orders denying the motion for summary judgment were interlocutory in nature. As a result, they argue that it was inappropriate for the trial court to grant relief under Rule 60. They also argue that it was inappropriate for a successor trial judge to reverse the previous trial judge's rulings, citing Amiker v. Drugs for Less, Inc. , 796 So.2d 942 (Miss. 2000).

¶ 13. It is true that the Court has stated that Rule 60"applies only where the judgment or order is final." Holland , 3 So.3d at 104. Rule 60 provides relief "from a final judgment, order, or proceeding." Miss. R. Civ. P. 60(b). Here, the trial court's reliance on Rule 60 was misplaced. However, the Court has made clear that a trial judge does have authority to revise an order denying summary judgment under Rule 54. Mauck v. Columbus Hotel Co. , 741 So.2d 259, 268 (Miss. 1999) ; see also Holland , 3 So.3d at 104. Rule 54 provides that certain interlocutory orders are "subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." Miss. R. Civ. P. 54(b). Accordingly, the trial court had authority to revise the order denying the defendants' motion for summary judgment. Holland , 3 So.3d 94 ; see also Tucker v. Williams , 198 So.3d 299 (Miss. 2016). The Court also has held that it is appropriate for a successor trial judge to revise a denial of summary judgment by the previous trial judge. Holland , 3 So.3d at 104. For the foregoing reasons, we conclude that the present issue is without merit.

III. Summary Judgment

A. Wrongful Termination

¶ 14. "Mississippi adheres to the common law doctrine of employment-at-will." Senseney v. Mississippi Power Co. , 914 So.2d 1225, 1228 (Miss. Ct. App. 2005) (citing Kelly v. Miss. Valley Gas Co. , 397 So.2d 874, 874 (Miss. 1981) ). Under the doctrine, either the employer or the employee may terminate the employment relationship at will unless the parties are bound by an employment contract or a contract providing for a term of employment. Id. (citing Perry v. Sears, Roebuck & Co. , 508 So.2d 1086, 1088 (Miss. 1987) ). The doctrine permits an employer to terminate an employee at any time for a good reason, a wrong reason, or no reason at all. Id. (citing McCrory v. Wal-Mart Stores, Inc. , 755 So.2d 1141, 1142 (Miss. Ct. App. 1999) ).

¶ 15. The Collinses argue that Mississippi Code Section 21-31-23 provides an exception to their at-will employment status. Section 21-31-23 provides that firefighters in the classified civil service have certain procedural rights before they may be terminated in most situations. Miss. Code Ann. § 21-31-23 (Rev. 2015). However, the code section protects only civil service employees in municipalities coming within the purview of the civil service laws. Miss. Code Ann. §§ 21-31-1, 21-31-13 (Rev. 2015). The City of Newton does not have a civil service commission and does not fall within the purview of the civil service laws, so the Collinses' argument is without merit.

¶ 16. Alternatively, the Collinses argue that the Newton Fire Department Standard Operating Guidelines provide an exception to the at-will employment doctrine. In Bobbitt v. Orchard, Ltd. , 603 So.2d 356, 357 (Miss. 1992), the Court recognized the following exception to the employment at will doctrine:

[W]hen an employer publishes and disseminates to its employees a manual setting forth the proceedings which will be followed in event of an employee's infraction of rules, and there is nothing in the employment contract to the contrary, then the employer will be required to follow its own manual in disciplining or discharging employees for infractions or misconduct specifically covered by the manual.

¶ 17. The exception created by Bobbitt is a narrow one.

The question in this case is when an employer furnishes its employees a detailed manual stating its rules of employment, and setting forth procedures that will be followed in event of infraction of its rules of employment, can it completely ignore the manual in discharging an employee for an infraction clearly covered by the manual? Put otherwise, when an offense specifically covered by the employer's own manual provides no more severe disciplining than a warning or counseling of the employee, may the employer pay no attention to the manual and fire the employee instead?

Bobbitt , 603 So.2d at 361.

¶ 18. At the outset, we are unpersuaded that volunteer firefighters may maintain wrongful termination claims. Such a claim has not been recognized in our State. As to the actual employees, the City of Newton, Mississippi, Employee Policy Handbook unequivocally provided that employment with the City is at will. On the first page following the table of contents, under the heading, "INTRODUCTORY STATEMENT," the Handbook provided:

This policy guide is designed to acquaint you with the City of Newton policies and provide you with information about working conditions, employee benefits; and some of the policies affecting your employment. You should read, understand, and comply with all provisions of the handbook. It describes many of your responsibilities as an employee and outlines the programs developed by the City of Newton to benefit employees.
No employee policy guide can anticipate every circumstance or question about policy. The need may arise and the City reserves the right to revise, supplement, or rescind any policies or portion of the handbook from time to time as it deems appropriate in its sole and absolute discretion, and with or without notice to the employees.
NO STATEMENT IN THIS POLICY GUIDE SHOULD BE INTERPRETED AS A CONTRACT OF EMPLOYMENT BETWEEN YOU AND THE CITY OF NEWTON.
Neither the employee nor the City of Newton is bound to continue the employment relationship if either chooses, at its will, to end the relationship at any time.

¶ 19. Under the heading "RESIGNATION AND DISCHARGE," the Handbook provided:

Employees of the City of Newton work at the will of the governing authorities of the City. Discretion to hire and fire is vested in the Department Heads, i.e. the City Clerk, Chief of Police, and Director of Public Works, subject to approval by the Mayor and Board of Aldermen. Since employment with the City of Newton is based on mutual consent, both the employee and the City have the right to terminate employment at will, with or without cause, at any time.

¶ 20. The Handbook also contained a section titled "EMPLOYEE CONDUCT AND WORK RULES," noting that it is not possible to list all the forms of behavior that are considered unacceptable in the workplace. However, a number of "examples of infractions of rules of conduct that may result in disciplinary action, up to and including employment termination" were identified. The section concluded with the following underlined provision:

Employment with the City of Newton is at the mutual consent of the City: and the employee, and either party may terminate that relationship at any time, with or without cause, and with or without advance notice.

¶ 21. The Guidelines, only portions of which are in the record on appeal, state that their purpose is "[t]o establish Rules and Regulations for the personnel of the Newton Fire Department that are particular to the Fire Department and which are not included in the City of Newton Personnel Rules and Regulations, and federal or state regulations and statutes."

¶ 22. A federal district court, applying Mississippi law, recently addressed an issue similar to the one we face today. Former police officers filed a constitutional claim for deprivation of property without due process against the City of Shelby, Mississippi, following their termination, claiming that, due to the policies and procedures in effect during their employment, they could be discharged only for a legitimate cause and upon recommendation of the police chief. Johnson v. City of Shelby, Miss. , No. 2:10-CV-00036-MPM, 2015 WL 3966238, at **1-2 (N.D. Miss. June 30, 2015), aff'd , 642 Fed.Appx. 380 (5th Cir. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 146, 196 L.Ed.2d 44 (2016). The City of Shelby argued that the police officers did not have employment contracts with the City of Shelby and therefore their employment was at will. Id. at *2. The City of Shelby also argued that, even if the policies were in place at the time of the police officers' terminations, the police officers still would not have a property interest because the City of Shelby Employee Handbook stated:

There is no contract of employment between the City and any one or all of its employees. Employment security cannot be guaranteed for or by any employee. At all times during employment with the City of Shelby, employees shall retain the right to leave employment if they choose. Likewise, we retain the right to separate any employee from employment at any time with or without notice.

¶ 23. The district court acknowledged that, under Bobbitt , employers may adopt policies creating a property interest in the police officers' employment. Id. at *3. However, the district court found that the City of Shelby's employee handbook specifically disclaimed a contractual relationship. Id. The district court determined that "[w]here there is something in the employee handbook disclaiming a contract of employment, the rule developed in Bobbitt does not apply." Id. "Further, 'disclaimers in employees' manuals having their purpose of preserving the employment at-will relationship cannot be ignored.' " Id. (quoting McCrory , 755 So.2d at 1144-45 ). The district court noted that the policy manual relied on by the police officers contained discretionary and permissive language regarding disciplinary actions. Id. The district court concluded, "[d]iscretionary and permissive language in an employment manual ... does not override the employees' at-will status." Id. (citing Senseney , 914 So.2d at 1229 ).

¶ 24. Similarly, we cannot ignore the three specific, unequivocal disclaimers contained in the City's Handbook. Furthermore, the exception recognized in Bobbitt does not apply to the case sub judice . The Court of Appeals described the breadth of the exception:

The Bobbitt Court looked to the terms of the handbook itself and discovered, not a list of duties and obligations expected of an employee, but a detailed hierarchical scheme of potential offenses an employee might commit together with a concrete discipline plan for dealing with such offenses. This plan included a listing of ten Minor Offenses, sixteen Major Offenses, and ten Intolerable Offenses, together with a sanction for each such offense that was calibrated to correspond to the perceived gravity of the infraction.

McCrory , 755 So.2d at 1143.

¶ 25. While the Guidelines offer "Standardized Disciplinary Actions" for "Tardiness, Uniform Violation, Safety Violation, and all other general rules and regulations violations, to be issued for individual violations with no more than 12 during a career," the Guidelines do not purport to create a comprehensive, "detailed hierarchical scheme of potential offenses an employee might commit together with a concrete discipline plan for dealing with such offenses." See McCrory , 755 So.2d at 1143. The Guidelines contain discretionary and permissive language, i.e. , "violations may be sufficient cause for disciplinary action." The Guidelines refer to "all other general rules and regulations," which are not in the record on appeal. We do not even have the privilege of reviewing an entire copy of the Guidelines, much less "all other general rules and regulations" referenced in the Guidelines.

¶ 26. In Senseney , the Court of Appeals aptly noted:

We have previously found that, if an employee handbook does not provide exclusive permissible grounds for discharge, it is unreasonable for an employee to believe that he may be terminated only for cause. McCrory , 755 So.2d at 1145 (¶ 17) (quoting Reid v. Sears, Roebuck & Co. , 790 F.2d 453, 460 (6th Cir.1986) ). Mississippi Power's guidelines concerning discharge and other forms of employee discipline speak in permissive terms of what a manager "should" do and suggest factors that should be taken into consideration. The guidelines state that discharge without warning is "normally appropriate" for only certain unlisted serious offenses. Thus, the guidelines do not purport to create a mandatory employee discipline scheme. The language of the corporate guidelines could not have led Senseney to reasonably believe that Mississippi Power was contractually bound to warn or counsel him prior to discharge. Id.

Senseney , 914 So.2d at 1229-30 (Miss. Ct. App. 2005) (emphasis added).

¶ 27. Here, the Collinses' at-will employment status was preserved in light of the three specific, unequivocal disclaimers contained in the City's Handbook. See McCrory , 755 So.2d 1141. Also, the Guidelines do not provide "exclusive permissible grounds for discharge." See Senseney , 914 So.2d at 1229-30. Because, as a matter of law, the Guidelines "do not purport to create a mandatory employee discipline scheme," we hold that the Collinses' at-will employment status was maintained. See id. Accordingly, the trial court's entry of summary judgment as to the wrongful termination claims was proper.

B. Intentional Infliction of Emotional Distress

¶ 28. The Collinses assert two grounds for their intentional infliction of emotional distress claim: "(1) termination without notice, grounds, or a hearing as civil servants and in violation of their contractual employment with the City of Newton, and (2) the comments made by City representatives, including the Mayor and the Interim Fire Chief, with regard to the Collins family." The Collinses, without citation, allege that because the defendants are municipal government officials, they "are held to a higher standard of good faith and fair dealing, not to mention decency, and thus the slurs and actions taken here are certain to cause revulsion and outrage in the mind of a reasonable juror." The Collinses cite Chief Skinner's alleged threat to Donald to cut off Jay's head, that Mayor Carr allegedly was "making a personal thing" out of firing the Collinses, that Mayor Carr made "disparaging comments," and that an article was published in the Newton newspaper regarding Donald's termination.

¶ 29. To sustain a claim of intentional infliction of emotional distress, the defendants' conduct must be wanton and willful, as well as evoke outrage or revulsion. Speed v. Scott , 787 So.2d 626, 630 (Miss. 2001). The severity of the acts should be such that they are atrocious and intolerable in a civilized society. Id. Meeting the requirements is a "tall order." Id. The liability does not extend to "mere insults, indignities, threats, annoyances, petty oppression, or other trivialities." Pegues v. Emerson Elec. Co. , 913 F.Supp. 976, 982 (N.D. Miss. 1996) (quoting Restatement 2d of Torts § 46 cmt. d). "A claim for intentional infliction of emotional distress will not ordinarily lie for mere employment disputes." Id. ; Lee v. Golden Triangle Planning & Dev. Dist., Inc. , 797 So.2d 845, 851 (Miss. 2001). Viable claims for intentional infliction of emotional distress in a workplace environment usually are "limited to cases involving a pattern of deliberate, repeated harassment over a period of time." Pegues , 913 F.Supp. at 982-83 ; Lee , 797 So.2d at 851.

¶ 30. In Speed , a fire department chief and volunteer firefighter were at odds, with the Chief seeing the volunteer as a potential rival trying to undermine him. Speed , 787 So.2d at 630-31. Over the course of about a month, the Chief allegedly called the volunteer a liar or thief or both on approximately five occasions regarding alleged lies about a newspaper publication and alleged thievery of some handwritten papers prepared for a training program. Id. at 629-31. The Court concluded that the conduct "was over a fairly short period of time, arose from the disagreements between the two men and perhaps fears about [the Chief's] career longevity[,]" noted the statements were not deemed credible, and that the alleged lies and thievery were regarding minor issues. Id. at 631. The Court held that "Speed's conduct simply cannot be seen as intolerable, outrageous or revolting." Id.

¶ 31. Regarding the "disparaging comments" made and the newspaper article, the Collinses failed to allege what statements about them were actually said or written. They failed to place the newspaper article into evidence, and the "disparaging comments" essentially rely on rumors that Mayor Carr was "talking bad" about the Collinses without any allegations regarding the actual substance of what he said to anyone that would disparage any of the Collinses. The alleged wrongful termination does not rise to the level of more than any employment dispute that may have its roots in personal animosity. While it may be true that voters would find such behavior unbecoming of a public official, it certainly does not rise to the level of outrageousness or revulsion such that it is intolerable in a civilized society.

¶ 32. Regarding the threat to cut off Jay's head, liability does not extend to mere threats. Grice v. FedEx Ground Package Sys., Inc. , 925 So.2d 907, 913 (Miss. Ct. App. 2006). In Grice , the plaintiff alleged that a manager had threatened that she would "come up missing" if she returned to work sick. Id. at 911. The Court of Appeals found that the one alleged threat did not give rise to liability for intentional infliction of emotional distress. Id. at 913. Likewise, the Collinses have not alleged any facts that would support outrageous or revolting conduct sufficient to create a genuine issue of material fact as to the issue of intentional infliction of emotional distress. Summary judgment was appropriate on the issue.

C. Negligent Infliction of Emotional Distress

¶ 33. On appeal, the Collinses argue that "[a]s a result of the wrongful dismissals," a cause of action accrued for the resulting tort of negligent infliction of emotional distress.

¶ 34. The trial court found that Collinses were "unable to satisfy nor have they provided any evidence thereof that each suffered a physical illness which is medically cognizable requiring or necessitating the assistance of those in the medical profession." See Wilson v. Gen. Motors Acceptance Corp ., 883 So.2d 56, 65 (¶ 29) (Miss. 2004) (holding that a plaintiff may not recover emotional distress damages resulting from ordinary negligence without proving some sort of physical manifestation of injury or demonstrable physical harm). The Collinses wholly failed to address the trial court's finding on appeal by disputing that they indeed had suffered physical illness. Thus, we do not consider the assignment of error because the Collinses failed to meet their burden on appeal demonstrating some reversible error on the issue to the Court. Randolph v. State , 852 So.2d 547, 557-58 (¶¶ 29) (Miss. 2002). Because the issue was not argued in the Collinses' appellate briefing, we consider it abandoned and waived. Sumrall v. State , 758 So.2d 1091, 1094 (Miss. Ct. App. 2000).

D. Slander

¶ 35. To prove slander, a plaintiff must show "(a) a false statement that has the capacity to injure the plaintiff's reputation; (b) an unprivileged publication, i.e. , communication to a third party; (c) negligence or greater fault on part of publisher; and (d) either actionability of statement irrespective of special harm or existence of special harm caused by publication."

Speed , 787 So.2d at 631 (internal quotations omitted).

¶ 36. The Collinses fail to meet the first element of slander. They allege generally that certain defendants were "talking bad" about them and trying to prevent them from working. They also refer to a newspaper article published about Donald. Yet, they did not place the article in the record, nor did they refer to any actual statement made by the defendants. They simply refer to generalized "talking bad." The generalization is not sufficient to raise a genuine issue of material fact to defeat summary judgment. Summary judgment was appropriate on the issue.

E. Reckless Disregard

¶ 37. Donald's and Mary's complaint alleges that:

... as a direct result of the negligence of the Defendants, the City of Newton Fire Department was unable to properly respond to the call when the Plaintiffs' home caught fire on or about July 21, 2012. The reckless and negligent conduct of Mayor Carr and the Board of Alderman [sic] resulted in the fire department lacking the adequate infrastructure to properly respond to emergencies.
In the early morning hours of July 21, 2012, the effect of the negligence of Mayor Carr and the Board of Alderman [sic], in approving Chief Parks'[s] recommendations of stripping the fire department of its experienced personnel, came to fruition. The Plaintiffs' home caught fire and Chief Skinner lacked the skill and experience to properly supervise the firefighters on the scene endangering the safety of the public and property of the City of Newton.

¶ 38. The Collinses argue that a genuine issue of material fact exists that the defendants had "[r]eckless disregard for the failure to protect the property of William Donald Collins Sr. and Mary Collins." They focus solely on criticizing how the July 21, 2012, fire was fought and the resulting property damage. The defendants claim immunity for the acts surrounding the fire at Donald's and Mary's residence, claiming that the Collinses failed to show reckless disregard.

¶ 39. Mississippi Code Section 11-46-9 provides that

[a] governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim ... [a]rising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury[.]

Miss. Code Ann. § 11-46-9(1)(c) (Rev. 2012). Reckless disregard is defined as a "higher standard than gross negligence, and it embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act." Davis v. City of Clarksdale , 18 So.3d 246, 249 (Miss. 2009) (internal quotations omitted). While it is less than an intentional act, it is more than mere negligence. Id. Reckless disregard usually is "accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow." Id. (internal quotations omitted).

¶ 40. The plain language of the statute requires that an employee must act with "reckless disregard of the safety and well-being of any person." Miss. Code Ann. § 11-46-9(1)(c) (Rev. 2012) (emphasis added). Donald and Mary do not allege that the safety and well-being of any person was endangered by the Fire Department's actions fighting the July 21, 2012, fire. Indeed, the record shows that Donald and Mary were out of the house and safe by the time the Fire Department arrived on the scene. The statute's plain language simply does not contemplate liability for actions that may relate merely to alleged reckless disregard of property. Because Donald and Mary do not allege that the actions fighting the fire endangered the safety and well-being of any person, their claim is subject to immunity.

¶ 41. Donald and Mary also allege in their complaint that certain fire department personnel decisions recklessly disregarded the safety and well-being of the public. While it may be true under some circumstances that personnel decisions could recklessly disregard the safety of the public, the allegation, without more, simply does not create a genuine issue of material fact that the defendants acted with reckless disregard under the high standard required. They do not demonstrate any facts that would create a genuine issue of material fact that the personnel decisions at issue went beyond alleged negligence and "embrace[d] willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act." Davis , 18 So.3d at 249 (internal quotations omitted). Thus, the trial court correctly granted summary judgment on Donald's and Mary's property damage claims.

CONCLUSION

¶ 42. For the foregoing reasons, we affirm the grant of summary judgment.

¶ 43. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. KING, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J.

KING, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶ 44. I agree that affirming the trial court is appropriate for the majority of the claims in this case; however, because I believe that the wrongful termination claims should survive, I respectfully concur in part and dissent in part.

¶ 45. The Collinses argue that the Newton Fire Department Standard Operating Guidelines ("Guidelines") provide an exception to the at-will employment doctrine. One exception to the at-will doctrine is where an employee manual creates a contractual obligation. Bobbitt v. Orchard, Ltd. , 603 So.2d 356 (Miss. 1992).

¶ 46. Donald Collins testified that he signed something stating he would follow the Guidelines, that he was familiar with some of the Guidelines, and that the standard procedure for terminating a firefighter, paid or volunteer, was to issue oral and written warnings first. He also testified that he had received Christmas bonuses, but did not receive regular compensation or benefits. Lisa testified that the volunteers had a certain procedure that was followed to hire and terminate volunteers, and that procedure was not followed with her termination. She further testified that she had applied for permanent positions with the Fire Department and had been passed over for males, despite scoring higher than the males on both physical and written assessments. When she was terminated as a volunteer, she was in the process of obtaining her official certification as a volunteer firefighter with the Fire Academy, and was unable to continue that. She also testified that her plan was to be a full-time firefighter, and that "you need to have experience as a volunteer to be high on a list of getting hired as a full-time employee with the Fire Department. The more experience you have as a volunteer, the better your chances."

¶ 47. Donnie testified that the Fire Department followed the disciplinary procedures in the Guidelines for terminating personnel and that it was communicated to the firefighters that these were the rules the Fire Department and its personnel abided by. Colt also testified that the procedure for termination included a verbal and then a written warning, then suspension, then termination.

¶ 48. The City of Newton Employee Policy Handbook ("Handbook") provides that "NO STATEMENT IN THIS POLICY GUIDE SHOULD BE INTERPRETED AS A CONTRACT OF EMPLOYMENT BETWEEN YOU AND THE CITY OF NEWTON." (Emphasis added.) At least two other provisions provide that employment with the City is at-will, with one stating that employees "work at the will of the governing authorities of the City. Discretion to hire and fire is vested in the Department Heads, i.e. the City Clerk, Chief of Police, and Director of Public Works, subject to approval by the Mayor and Board of Aldermen."

¶ 49. The Guidelines state that their purpose is "To establish Rules and Regulations for the personnel of the Newton Fire Department that are particular to the Fire Department and which are not included in the City of Newton Personnel Rules and Regulations, and federal or state regulations and statutes." The Guidelines apply to all Fire Department personnel, with personnel including "all persons, uniformed and non-uniformed, volunteers and employed by the City of Newton Fire Department." The Guidelines require all personnel to obey all laws, rules, regulations, ordinances, and orders, "and any violations may be sufficient cause for disciplinary action ." (Emphasis added.) They provide that non-compliance with the department rules and regulations "will not be tolerated" and that "[t]hose personnel committing such infractions will be subject to disciplinary actions ." (Emphasis added.) The Guidelines then outline "Standardized Disciplinary Actions." For tardiness, uniform violation, safety violation, and all other general rules and regulations violations, "to be issued for individual violations with no more than 12 during a career[,]" the first offense receives a "[d]ocumented verbal warning/coaching/counseling session." A second offense receives a "[w]ritten reprimand." The third offense receives one "shift suspension without pay." The fourth offense warrants suspension without pay for three shifts. The fifth offense receives termination. Other disciplinary procedures are outlined for fighting and DUI. Nothing in the provisions of the Guidelines placed in the record contains an express disclaimer that the Guidelines did not affect the employer's right to terminate the employee at will. Nor does the Handbook contain an express disclaimer that other policy documents outside the Handbook itself would not affect the employer's right to terminate the employee at will.

¶ 50. In Bobbitt , the Court emphasized that the employee manual containing the disciplinary procedures did not contain any "express disclaimer or contractual provision that the manual did not affect the employer's right to terminate the employee at will[.]" Bobbitt , 603 So.2d at 362. In this case, nothing in the record indicates that the Guidelines expressly reserve the right to terminate the employee at will. Moreover, the Handbook only provides that nothing in that particular employee handbook affects the at-will nature of the employment. It did not expressly state that any other department policies or guidelines would similarly not affect the at-will employment. In Bobbitt , the employer pointed to a sentence in the application for employment that stated "I understand that the first three months of employment will be considered as a period of probation and that my employment and compensation may be terminated with or without notice at any time...." Id. at 362 n.1. The Court found that "[t]his sentence, at the very best, creates for [the employer] an ambiguity from which it will argue at full trial that it applied to long time employment and not just the first ninety days. The ambiguity itself, however, removes this case from a summary judgment posture[.]" Id. ; cf. Senseney v. Miss. Power Co. , 914 So.2d 1225 (Miss. Ct. App. 2005) (The exception did not apply to personnel guidelines regarding discipline where the employment application explicitly stated that "I also understand and agree that nothing in this employment application, in the Company's policy statements, personnel guidelines or employee handbook is intended to create ... an employment contract between the Company and me. I understand and agree that employment with the Company will be on an at-will basis[.]" The court noted the express disclaimer, with the application specifically referring to the personnel guidelines that contained the disciplinary procedures.).

¶ 51. "[T]he general rule is that where a contract is ambiguous and uncertain, questions of fact are presented which are to be resolved by the trier of facts, and the granting of summary judgment is inappropriate." Shelton v. American Ins. Co. , 507 So.2d 894, 896 (Miss. 1987). The Handbook does not explicitly reserve the right to terminate employment at will with regard to the Fire Department Guidelines or any other documents outside of the handbook itself. And the provisions of the Guidelines placed into the record before this Court do not explicitly reserve the right to terminate at will. The Guidelines applied to all personnel, compensated and volunteer. On the record before the Court, whether the Guidelines created a contract or whether the right to terminate at will was effectively reserved is ambiguous. It is likely that consideration of extrinsic evidence is necessary, and "resolution of any uncertainties will be against the drafter of the contract[,]" which in this case is the City. Dalton v. Cellular South, Inc. , 20 So.3d 1227, 1232 (Miss. 2009).

¶ 52. A plaintiff need not prove his case to survive summary judgment; he need only create a genuine issue of material fact. Neither the Handbook nor the Guidelines specifically refer to one another. As such, when construing the evidence in the light most favorable to the Collinses, a genuine issue of material fact exists as to whether the Guidelines created a contract and thus whether Donnie, Colt, Donald, and Lisa had a right to the disciplinary procedures outlined in the Guidelines. Therefore, summary judgment on the wrongful termination claims was inappropriate, and I would reverse the trial court on this issue.

KITCHENS, P.J., JOINS THIS OPINION.

      Decisions on both Rule 59 and Rule 60 motions generally are reviewed for abuse of discretion. McNeese v. McNeese , 119 So.3d 264, 272 (Miss. 2013).

      The only reference in the record that even could be construed as an actual "statement" was that Donald testified that his first cousin told him that Mayor Carr had said he was leaving Hardee's because "[t]here's too many Collinses in there for me." The plaintiffs have failed to indicate any evidence demonstrating the falsity of such a "statement."

      The defendants did ask Donald about some Fire Department "Rules and Regulations" that allegedly provide that volunteers can be terminated at any time. However, these rules and regulations are not in the record. The defendants also cite in their brief to a Guideline provision requiring that Fire Department personnel acquaint themselves with the City of Newton rules and regulations, yet, that Guideline provision is not in the record.

      It appears that only portions of the Guidelines were placed in the record, rather than the complete Guidelines. If the complete Guidelines contain such an express disclaimer, certainly it was incumbent upon the defendants to place a complete copy in the record.

      I am skeptical of the argument that a volunteer may have a successful wrongful termination claim; however, the documents in the record before this Court contain an ambiguity that creates a material issue of fact to determine whether these volunteers had any contractual rights regarding their volunteer positions. Volunteers had to follow the Guidelines, and many volunteers apparently regarded volunteering as a path to paid employment.


source: Caselaw Access Project

author: BARNES, J., FOR THE COURT: WILSON, J., CONCURRING IN PART AND DISSENTING IN PART:

license: Public Domain

text:
    Arthur Dewayne BLACK, Appellant v. Alicia Powell BLACK, Appellee
    NO. 2016-CA-00104-COA
    Court of Appeals of Mississippi.
    November 7, 2017
    ATTORNEY FOR APPELLANT: DEAN HOLLEMAN
    ATTORNEYS FOR APPELLEE: NITA LOUISE CHASE, TANYA MITCHELL GRAHAM
    EN BANC.
   BARNES, J., FOR THE COURT:

¶ 1. Arthur and Alicia Black were divorced in December 2014. The Jackson County Chancery Court found the prenuptial agreement signed by the parties valid and enforceable, resulting in the marital estate being equitably distributed according to its terms. The parties moved to have the final judgment set aside, altered, or amended, raising a variety of issues in the process. Displeased with the chancery court's findings in its posttrial order, Arthur seeks relief from this Court regarding many of the same issues, including sanctions and attorney's fees, the chancellor's allocation of certain marital assets and debts, child-support and tuition payments, and visitation privileges. Upon review, the judgment is affirmed in part and reversed and remanded in part for further findings consistent with this opinion.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Arthur and Alicia were married on September 13, 2003. Three days prior, on September 10, 2003, the parties executed a prenuptial agreement. Alicia left her career as an engineer in Atlanta, Georgia, to assist Arthur, an orthopedic surgeon, in building a medical practice in Mississippi, serving as the business's office manager. The couple had two children, M.K.B., a female child, and A.D.B. II, a male child. Alicia was the primary caretaker of the children for the duration of the parties' marriage. For the last two years of the parties' marriage, Alicia and the children resided in Mobile, Alabama, where the children attended private school. The parties separated in May 2013, and Alicia and the children moved to Atlanta following the May 2014 school year, which is where they currently reside.

¶ 3. On March 7, 2014, Alicia filed a pro se complaint for divorce alleging, among other things, uncondoned adultery. Several days later, she filed an amended complaint with the assistance of counsel, acknowledging that the parties had entered into a prenuptial agreement, but asserting that the agreement was invalid because its terms were "unconscionable under the specific facts and circumstances of this case." Were the agreement found to be invalid, she sought an equitable division of all marital assets, as well as alimony and attorney's fees. Arthur filed his answer, a motion for declaratory judgment as to the validity of the prenuptial agreement, and a counterclaim for divorce and breach of contract.

¶ 4. On June 17, 2014, the chancery court granted Alicia temporary physical custody of the children, and Arthur was ordered to pay temporary child support of $5,200 per month. He was also ordered to maintain the children's health insurance, pay the children's noncovered medical expenses, pay $30,000 toward the children's private-school tuition, and pay all financial obligations on all real properties owned by the parties. The chancery court set a demarcation date of May 2013 (the relevant date of the parties' separation), and set a hearing for August 2014 on the validity of the prenuptial agreement. A trial date of December 11, 2014, was also set by the court, after which the issue of Alicia's request for attorney's fees would be resolved.

¶ 5. Alicia filed a motion for declaratory relief in July 2014, reasserting the invalidity of the parties' prenuptial agreement. She acknowledged, however, that the parties had executed the prenuptial agreement, including a ratification thereof, and that both parties had been represented by legal counsel in the drafting, assessment, evaluation, and execution of the agreement. Arthur requested sanctions and attorney's fees in light of Alicia's alleged frivolousness in attacking the agreement.

¶ 6. On the day of the hearing on the validity of the agreement, Alicia filed a supplemental motion, vaguely attacking the agreement on grounds of invalidity and unconscionability, and requesting that the chancery court order Arthur to produce the original agreement. At the conclusion of the hearing, the chancellor determined that the parties voluntarily executed the agreement at a time when both parties were provided full disclosure of all assets prior to execution of the agreement and that both were represented by very competent legal counsel. Accordingly, there was fairness in the execution of the agreement and the terms of the agreement were not unconscionable. The chancellor upheld the validity of the agreement, but denied Arthur's request for sanctions and attorney's fees. Aggrieved, Alicia filed a motion for reconsideration as to the validity of the agreement, and Arthur moved for reconsideration as to the denial of his request for sanctions and attorney's fees. Each party's request was denied by the court.

¶ 7. After trial, the chancellor issued a final judgment on December 31, 2014, granting Alicia a divorce on the ground of Arthur's admitted adultery. The parties were granted joint legal custody of the children, Alicia received physical custody and Arthur was awarded visitation privileges. The court ordered Arthur to pay child support of $6,500 per month, $36,000 annually towards the children's private-school tuition, as well as various other health-related expenses for the children. The chancellor determined that the marital estate possessed a total equity value of $2,211,050.75, and he divided the marital estate in accordance with the terms of the prenuptial agreement. Thus, Alicia was awarded $668,183.52, with the remainder of the estate to be awarded to Arthur. The chancellor also awarded Alicia $40,000 in attorney's fees in light of her inability to pay.

¶ 8. In January 2015, both parties filed motions under Mississippi Rule of Civil Procedure 59 to have the judgment set aside, altered, or amended. Alicia sought, among other things, to have the visitation-exchange times clarified and for the court to order Arthur to pay all sums originating from the December 2014 final judgment. Arthur requested to have a particular marital debt included in the equitable distribution of the parties' estate, as well as review of other matters, including child support and tuition costs, 2013 income-tax refunds, allocated assets, and attorney's fees. A June 2015 hearing was held, wherein the parties orally agreed to alteration of visitation privileges and reopened the record as to the income-tax returns. On December 17, 2015, the chancellor issued his posttrial order, and Arthur now appeals the order, citing several issues.

STANDARD OF REVIEW

¶ 9. Appellate courts are bound by a limited standard of review in domestic-relations matters. Ferguson v. Ferguson , 639 So.2d 921, 930 (Miss. 1994). In matters concerning "divorce, custody, and child support, we will 'respect a chancellor's findings of fact which are supported by credible evidence and not manifestly wrong.' " Dorsey v. Dorsey , 972 So.2d 48, 51 (¶ 5) (Miss. Ct. App. 2008) (quoting R.K. v. J.K., 946 So.2d 764, 772 (¶ 17) (Miss. 2007) ). Thus, a chancellor's findings will not be disturbed on appeal "unless the chancellor was manifestly wrong, clearly erroneous or a clearly erroneous standard was applied." Id. (quoting Yelverton v. Yelverton, 961 So.2d 19, 24 (¶ 6) (Miss. 2007) ). "[W]hen looking at a chancellor's division of property and assets, a 'chancellor's division and distribution will be upheld if it is supported by substantial credible evidence.' " Id. (quoting Owen v. Owen, 928 So.2d 156, 160 (¶ 10) (Miss. 2006) ). "For questions of law, our standard of review is de novo." Shoffner v. Shoffner , 909 So.2d 1245, 1249 (¶ 11) (Miss. Ct. App. 2005).

DISCUSSION

I. Scope and Terms of the Prenuptial Agreement

¶ 10. "The Mississippi Supreme Court has held that prenuptial agreements must be fair in the execution, and a duty of disclosure shall be imposed." McLeod v. McLeod , 145 So.3d 1246, 1249 (¶ 12) (Miss. Ct. App. 2014). "Prenuptial agreements are enforced like contracts: the first rule of interpretation of contracts is to follow the intent of the parties." Id. (citing Long v. Long , 928 So.2d 1001, 1003 (¶ 14) (Miss. Ct. App. 2006) ).

¶ 11. The stated purpose of Arthur and Alicia's prenuptial agreement was to "fix and determine the rights accruing to each of them by reason of their marriage with respect to the property and estate of the other and with respect to the right of support of maintenance from the other." The agreement acknowledged that each party had consulted with his or her respective attorney regarding the effect of the agreement. Additionally, certain provisions of the agreement stated that each party was to "retain all rights in his or her own separate property," which encompassed real and personal property. The agreement further stated:

The interest of each in any property which they may together or separately acquire during the marriage shall be marital property, with [Arthur] to own seventy percent (70%) of all marital property of whatsoever kind or character and [Alicia] to own thirty percent (30%) of all said marital property, specifically excepting [Arthur's] medical practice or business.
....
Except as otherwise expressly provided in this premarital agreement, each of the parties hereby waives and releases any and all rights in the real or personal property of the other ... which may be assertable against the other at law or in equity, which he or she shall acquire by reason of marriage to the other, or which he or she shall have as a spouse of the other ... [including] [a]ny right to receive support, temporary support, maintenance, separate maintenance, or alimony from the other during the marriage or following the termination of the marriage.

The agreement also provided specific amounts of alimony based upon the duration of the parties' marriage, to be inclusive of "all types of temporary and permanent support." The chancery court found the agreement valid and enforceable in its entirety.

¶ 12. With these provisions in mind, Arthur asserts that the chancellor: (1) erred in denying his request for sanctions and attorney's fees; (2) failed to adhere to terms of the parties' prenuptial agreement regarding the equitable division of certain marital assets and debts and the award of attorney's fees to Alicia; (3) abused his discretion in his awards for monthly child support and tuition costs; and (4) erred in failing to memorialize specifically agreed upon visitation provisions in the posttrial order.

II. Denial of Arthur's Request for Sanctions and Attorney's Fees

¶ 13. Arthur alleges that the chancellor erred in failing to award him sanctions and attorney's fees for defending Alicia's attacks on the validity of the prenuptial agreement. Mississippi Rule of Civil Procedure 11(b) states:

If any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay, the court may order such a party, or his attorney, or both, to pay to the opposing party or parties the reasonable expenses incurred by such other parties and by their attorneys, including reasonable attorneys' fees.

And the Litigation Accountability Act provides, in pertinent part:

Except as otherwise provided in this chapter, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorney's fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification[.]

Miss. Code Ann. § 11-55-5(1) (Rev. 2012). The phrase " '[w]ithout substantial justification' means a filing that is 'frivolous, groundless in fact or in law, or vexatious, as determined by the court.' " Russell v. Beachwalk Condominiums Ass'n Inc. , 193 So.3d 657, 661 (¶ 8) (Miss. Ct. App. 2016) ; Miss. Code Ann. § 11-55-3(a) (Rev. 2012). "A claim is frivolous when, objectively speaking, the pleader or movant has no hope of success." Id. (internal quotations omitted). "We employ the same test to determine whether a filing is frivolous under both Rule 11 and the Litigation Accountability Act." Id. "When reviewing a decision regarding the question of whether to apply sanctions under Rule 11 and the Litigation Accountability Act, the proper standard is abuse of discretion." Pannagl v. Lambert (In re Estate of Pannagl ), 166 So.3d 39, 41 (¶ 6) (Miss. Ct. App. 2014) ; see also M.R.C.P. 11. "In the absence of a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors, the judgment of the chancellor regarding whether to apply sanctions will be affirmed." Id. (internal quotations omitted).

¶ 14. Arthur asserts that Alicia and her attorney, Tanya Graham, maliciously and recklessly attacked the validity of the parties' prenuptial agreement. The foundation for his argument derives from his analysis of Graham's billing entries to Alicia, from which Arthur deduces that both Alicia and Graham knowingly perpetuated a fraud upon the court. As such, he argues that Alicia's repeated filing of motions attacking the validity of the prenuptial agreement warrants sanctions.

¶ 15. Throughout Alicia's attacks on the validity of the premarital agreement, she questioned, among other things, her initials or signatures at the bottom of each page of the prenuptial agreement, as the original agreement could not be located, and neither party had made conscious efforts to locate it. Instead, both parties were in possession of photocopied duplicates, and the chancellor admitted the duplicates as evidence, finding the original agreement was unavailable. In doing so, the chancellor ultimately denied Arthur's request for sanctions and attorney's fees, stating:

I'm going to find that, right or wrong, simplifying Rule 11, it is, was there any chance whatsoever that [Alicia] could prevail [on her motion to invalidate the prenuptial agreement], and I think there was some chance. Not a great chance, but there was some chance. There was a question about the validity of signatures. The original was lost, if you remember. Nobody could come up with the original. I had to make a finding on that. So the motion [for sanctions and attorney's fees] is going to be denied.

¶ 16. The chancellor found Alicia's attacks on the validity of the photocopied duplicates were neither frivolous nor without substantial justification. See Russell , 193 So.3d at 661 (¶ 8) ; see also Miss. Code Ann. § 11-55-3(a). Reviewing the chancellor's findings, and in light of the unavailability of the original prenuptial agreement, we cannot say that the chancellor abused his discretion in denying Arthur's request for sanctions and attorney's fees.

III. Equitable Distribution According to Prenuptial Agreement

¶ 17. Arthur contends that certain marital assets and debts were not properly allocated in accordance with the terms of the prenuptial agreement. Specifically, he argues that the chancellor erred with respect to a $159,700 line of credit, a Wells Fargo savings account, 2013 income-tax returns, and the awarding of attorney's fees to Alicia.

A. $159,700 Line of Credit

¶ 18. When dividing the marital estate, the chancellor omitted a $159,700 line of credit jointly owed by the parties and secured by Arthur's premarital home. This debt was listed on Arthur's and Alicia's Uniform Chancery Court Rule 8.05 financial statements, and both parties testified during trial that the debt was jointly owed. In the final judgment and posttrial order, however, the line of credit was not listed as debt. Arthur argues the failure to include-and divide-this marital debt in accordance with the terms of the premarital agreement was erroneous. We agree.

¶ 19. The line of credit was acquired through Wells Fargo during the parties' marriage. Alicia contends now, as she did at trial, that the prenuptial agreement did not specifically address marital debts and, therefore, it was within the chancellor's equitable discretion to allocate the line of credit according to equitable principles. She further reiterates that the line of credit was used to refinance Arthur's premarital home (which became the marital home), and contends that the line of credit was used by one of Arthur's businesses to purchase a condominium in the Bahamas that he was ultimately awarded. However, Alicia points to nothing in the record to support the latter contention.

¶ 20. Because the prenuptial agreement was found to be a valid and enforceable contract, the marital debt should have been included in the chancellor's equitable distribution of the marital estate, and its omission was erroneous. Thus, the debt-if taken alone-should have been divided in accordance with the parties' agreement (i.e., 70% to Arthur, and 30% to Alicia). Its omission, however, resulted in the debt being allocated to neither party. Regardless of the debt's omission from the chancery court's analysis, the record reflects that Arthur and Alicia would remain jointly and severally liable according to the promissory note's terms and conditions. Furthermore, the chancellor stated on the record that he "need[ed] to address the debt," yet it was not accounted for in the original judgment, or the posttrial order.

¶ 21. We find the failure to include and divide this $159,700 joint debt in accordance with the prenuptial agreement was erroneous, and we reverse and remand as to this issue.

B. Wells Fargo Account # 7415

¶ 22. The chancellor awarded to Alicia, as separate property, four bank accounts, including Wells Fargo account # 7415. At the time Alicia filed her 8.05 financial declaration, the account possessed $45,137.98. In the final order, the chancellor found that "Alicia used funds from [a]ccount # 7415 to support herself and the children during the litigation," and that "Alicia's use of [a]ccount # 7415 was for the benefit of the children and she should not be penalized for such." Arthur contends the chancellor's finding as to this account was not supported by substantial evidence in the record. We disagree.

¶ 23. "Where there is substantial evidence to support the chancellor's findings, [this Court] is without the authority to disturb the chancellor's conclusions[.]" Buckalew v. Buccluch (In re Guardianship of Buckalew ), 62 So.3d 460, 463 (¶ 13) (Miss. Ct. App. 2011). Reviewing the record-which contains detailed financial statements and accompanying testimony-we find substantial evidence to support the chancellor's allocation of this account to Alicia. The chancellor had itemized accounting statements for Wells Fargo account # 7415, which he concluded was used "for the benefit of the children." Nothing in the record refutes the court's finding so as to render it clearly erroneous.

C. 2013 Income-Tax Refund

¶ 24. Arthur says the chancery court erred in its equitable division of 2013 income-tax refund. When the final order was issued in December 2014, the parties were in the process of filing 2013 tax returns, originally being filed as "married filing jointly." The chancellor determined that according to the prenuptial agreement, Arthur was to receive 70% of the refund when disbursed, with Alicia receiving 30%. But during the posttrial hearing in June 2015, Arthur presented evidence in relation to what the "marital portion" of the overall tax refunds were-because Arthur eventually filed his 2013 tax return as "married filing separately." Arthur offered testimony from his certified public accountant (CPA), Ed Jones. Jones had been the parties' CPA during their marriage, and had prepared their returns in years past. The purpose of Jones's testimony was to supplement the court with information regarding the 2013 return filed since the conclusion of trial.

¶ 25. Jones testified that Arthur was due to receive a federal refund of $67,505, and a Mississippi state refund of $23,833. Jones said that Arthur would make routine, estimated tax payments in quarterly installments. Jones also testified that $56,000 of the federal refund, and $9,000 of the state refund, was considered nonmarital because the estimated tax payments were paid with nonmarital assets obtained after the court's May 2013 demarcation date. Arthur contends the remaining balances of $11,505 and $14,833, respectively, are the marital portions of the refunds, which are subject to the terms of the prenuptial agreement.

¶ 26. But in the December 2015 order, the chancellor determined: "[T]he 2013 tax year contains marital funds and should be divided in a manner consistent with the [p]renuptial [a]greement ....

[Arthur] shall receive 70% of the refund and [Alicia] shall receive 30% of the refund." As Arthur points out, though, the chancellor did not make specific findings as to the precise amounts each party was to receive under the terms of the agreement. Because there was ample evidence from which the chancellor could have made these calculations, we find it proper to remand this issue to the chancery court to make specific findings regarding the equitable division of the 2013 income-tax refunds in accordance with the prenuptial agreement's terms-keeping in mind what portion of the refund was attributable to the income earned after the May 2013 demarcation date.

D. Attorney's Fees Awarded to Alicia

¶ 27. The chancery court awarded Alicia attorney's fees in the amount of $40,000, concluding:

Technically, Alicia would be forced to withdraw from her 401(k) to pay attorney's fees incurred[.] The [c]ourt finds that Alicia should not be forced to liquidate a portion of her 401(k) and incur taxes and penalties for early withdrawal in order to pay for an attorney. Alicia has no ability to pay attorney's fees unless she withdraws funds or sells assets.

"Generally, attorney's fees should only be awarded where the moving party has demonstrated an inability to pay." Stuart v. Stuart , 956 So.2d 295, 298 (¶ 20) (Miss. Ct. App. 2006). "A trial court abuses its discretion by awarding attorney's fees without first finding that the party is unable to pay the fees." Hankins v. Hankins , 729 So.2d 1283, 1286 (¶ 13) (Miss. 1999). "Chancellors are instructed to apply the McKee factors in granting or denying attorney's fees." Rogers v. Rogers , 94 So.3d 1258, 1267 (¶ 30) (Miss. Ct. App. 2012) (citing McKee v. McKee , 418 So.2d 764, 767 (Miss. 1982) ). The McKee factors include:

(1) relative financial ability of the parties; (2) the skill and standing of the attorney employed, (3) novelty and difficulty of issues in the case, (4) the responsibility required in managing the case, (5) time and labor required, (6) the usual and customary charge in the community, and (7) whether the attorney was precluded from undertaking other employment by accepting the case.

Burnham-Steptoe v. Steptoe , 755 So.2d 1225, 1236 (¶ 37) (Miss. Ct. App. 1999) (citing McKee , 418 So.2d at 767 ).

¶ 28. Arthur argues that under the prenuptial agreement, Alicia waived an equitable right to attorney's fees-albeit not explicitly. In the agreement, Arthur and Alicia waived and released "any and all rights in the real or personal property of the other ... which may be assertable against the other at law or in equity, which he or she shall acquire by reason of marriage to the other, or which he or she shall have as a spouse of the other." As the prenuptial agreement was found to be valid and enforceable, Arthur asserts that the chancellor's equitable award of attorney's fees to Alicia disregarded the terms of the agreement.

¶ 29. The stated purpose of the prenuptial agreement, however, was to "fix and determine the rights accruing to each of them by reason of their marriage with respect to property and estate of the other and with respect to the right of support of maintenance from the other." (Emphasis added). The right to attorney's fees did not accrue to Alicia as a property right by virtue of marriage. Since the execution of the parties' agreement, the supreme court noted in Haney v Haney , 907 So.2d 948, 957 (¶ 41) (Miss. 2005), that attorney's fees are "nothing more than an equitable distribution of a different flavor." But we do not find that this language in Haney , which has not been cited by any other case, provides a basis for concluding that attorney's fees were waived under the terms of the prenuptial agreement. Attorney's fees were not mentioned in the parties' agreement, and as it predated this Haney decision, there was no way anyone reviewing the agreement could have anticipated that attorney's fees would have been covered by that holding. We find no reason to expand the scope of an agreement that is already exceedingly broad.

¶ 30. Furthermore, this action involved issues not covered by the terms of the prenuptial agreement, such as child support and payment of the children's educational expenses and insurance. In fact, the agreement expressly provided that no terms "shall be construed as any attempt to waive child support payments." In Gottlieb v. Gottlieb , 138 A.D.3d 30, 48, 25 N.Y.S.3d 90 (N.Y. App. Div. 2016), the New York appellate court determined that because the prenuptial agreement did not address "child-related matters," an express waiver in the agreement for attorney's fees did "not preclude an award of counsel fees connected to litigating the child support issues raised in the motion." See also Vinik v. Lee , 96 A.D.3d 522, 523, 947 N.Y.S.2d 424 (N.Y. App. Div. 2012) (Since the parties' premarital agreement did not address custody and child support, "the waiver of counsel fees does not apply to counsel fees related to litigating child custody and support issues.")

¶ 31. As Alicia's counsel noted to the court, the majority of the attorney's fees were "where [Alicia] had to argue against [Arthur's] motion for protective order as it related to [Arthur's] current income," which aids in determining child support. Discussing Arthur's motion for a protective order to restrict the release of information from his employer, Alicia's counsel explained:

We had to hire a CPA to go through the bank statements .... [W]e have a good estimate for what his income is for 2014, which is almost over, but as far as [Arthur] producing [his hospital contract], he just wouldn't do it.
....
So we just don't have anything, and we're here before the Court seeking child support without any information.... [W]e withdrew our motion to compel because [Alicia] just simply cannot afford this litigation, and I think [Arthur] knows that. There's just no sense in us just continuing to fight over everything when she just can't-she simply cannot afford it. She's almost exhausted everything she has.

Alicia reiterates on appeal that although $16,000 in attorney's fees were incurred "contesting the validity of the premarital agreement," over $80,000 in attorney's fees and expert witness fees were incurred primarily "due to [Arthur's] stubborn litigiousness."

¶ 32. Arthur's remaining argument that Alicia had the ability to pay her attorney's fees because she could liquidate her 401(k) has been rejected by this Court on numerous occasions. See , e.g. , Branch v. Branch , 174 So.3d 932, 946 (¶ 60) (Miss. Ct. App. 2015) (upholding chancellor's finding that wife did not have to use home equity "as payment for the attorney's fees"); Rodriguez v. Rodriguez , 2 So.3d 720, 732 (¶ 43) (Miss. Ct. App. 2009) ("An inability to pay could be created if one party would be forced to liquidate a portion of [his or her] retirement or savings accounts in order to pay attorneys' fees."); Wells v. Wells, 800 So.2d 1239, 1247 (¶¶ 16-17) (Miss. Ct. App. 2001) (wife did not have to use alimony or liquidate her retirement account to pay attorney's fees). Alicia contends that she "had no other source of income than what she earned working for [Arthur]." An award of attorney's fees is "justified where the equities suggest one party should assist the other, and the other party is unable to pay." Haney , 907 So.2d at 957 (¶ 41).

¶ 33. Accordingly, we find no abuse of discretion in the chancery court's award of $40,000 in attorney's fees to Alicia.

IV. Monthly Child-Support Payment and Tuition Costs

¶ 34. Arthur also takes issue with the chancellor's deviation from the statutory guidelines in awarding child-support payments, as well as the chancellor's findings regarding tuition costs. Mississippi Code Annotated section 43-19-101 (Rev. 2015) governs child-support calculations in Mississippi. According to the guidelines, a noncustodial parent should pay 20% of his or her adjusted gross income as child support for the benefit of two minor children. Miss. Code Ann. § 43-19-101(1). The guidelines create a rebuttable presumption as to the justness or appropriateness of a child-support award, and may only be overcome by a "written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case[.]" Miss. Code Ann. § 43-19-101(2). Moreover, where a noncustodial parent's adjusted gross income exceeds $100,000 per year, "the court shall make a written finding in the record as to whether or not the application of the guidelines established in this section is reasonable." Miss. Code Ann. § 43-19-101(4).

¶ 35. Here, in accordance with the statute, the chancellor found that Arthur's annual adjusted gross income far exceeded $100,000. It was determined through financial statements that Arthur's monthly adjusted gross income amounted to $46,353. As a result, the chancellor found the application of the guidelines unjust, stating: "The minor children in this matter have extraordinary expenses with respect to private school tuition and expenses, extracurricular activities and other hobbies in which they are involved." The chancellor further articulated:

Payment of 20% of $100,000 would force the children to eliminate their activities, private school education and other needs to which they have accustomed to. The lifestyle known to the children would end and such an end would have a negative impact on the minor children. Both parties acknowledged the desire to continue providing the children with a private school education and to allow the children the maintain their current lifestyle. In order to do so, the [c]ourt must deviate from the statutory guidelines.

Based upon each party's awarded assets and wage-earning capacity, the chancellor ordered Arthur to pay $6,500 per month in child-support payments. Additionally, in light of the parties' agreement to maintain the children's private schooling, Arthur was ordered to pay $3,000 per month ($36,000 annually) towards private-school education of the minor children and their extracurricular activities.

¶ 36. Arthur argues that the upward deviation from the statutory guidelines was unjust, and the chancellor failed to take into account Alicia's earning capacity. We find there was substantial evidence in the record to support the chancellor's findings. The chancellor complied with the statutory mandate of making specific findings on the record-based in large part upon the mutual agreement among the parties regarding the lifestyle they wished their children to maintain. See § 43-19-101(2). Furthermore, the chancellor specifically noted that Arthur's wage-earning capacity "far exceed[ed]" Alicia's, and that Arthur was "financially capable" of providing those sums. Thus, the chancellor took into account Alicia's wage-earning capacity in making his determination. For these reasons, we find no error with the chancellor's decision regarding child-support payments and private-school tuition costs.

V. Visitation

¶ 37. Lastly, Arthur asserts that the chancellor erred in failing to include visitation changes specifically agreed upon during the Rule 59 motions hearing in its posttrial order. Because of these omissions, he seeks to have these revised provisions memorialized. Reviewing the original visitation provisions in conjunction with the subsequent on-the-record agreement between Arthur and Alicia, we find this is proper.

¶ 38. In the original final order, the chancellor set forth specific visitation privileges with which the parties were to comply. For summer each year, the parties agreed that Arthur would receive the children on June 1 until June 21, and on July 10 until July 24. For Thanksgiving holidays each year, Arthur was to receive the children in odd-numbered years on the day following the last day of school until the day before school was to reconvene. As to Christmas holidays each year, Arthur was to receive the children in the second part of the holiday during odd-numbered years, and the first part of the holiday during even-numbered years.

¶ 39. However, at the hearing on the Rule 59 motions, Arthur and Alicia verbally revised the provisions of Arthur's visitation privileges with the children. The parties agreed that for summer visitation, Arthur would receive the children the first Sunday of June, and the Sunday following July 9 each year. They further agreed that Alicia would have the children during Thanksgiving in odd-numbered years, and Arthur would have the children in even-numbered years. For Christmas, they agreed that Arthur would have the children the first part of the Christmas holiday in odd-numbered years, and the second part of the holiday in even-numbered years. The parties also agreed that all times relevant to the visitation provisions should be according to Eastern Standard Time, and that Arthur would maintain a $1,000 credit balance with Alicia for the children's noncovered medical expenses. Finally, the parties agreed that any remaining balance in a child's college fund at the conclusion of his or her college schooling would be transferred to the next child for his or her college education.

¶ 40. Yet none of these revisions were documented in the chancery court's posttrial order except to note that the visitation-exchange times would be on Eastern Standard Time. To avoid future visitation conflicts, Arthur seeks to have the chancery court incorporate these revised provisions in an order. Due to the material changes to dates, as well as which party shall receive the children during odd- or even-numbered years, we find such memorialization necessary. "If parties reach an agreement, the agreement containing the terms should be signed by the parties' attorney(s) or in appropriate cases, the parties, or recorded by the court reporter." Samples v. Davis , 904 So.2d 1061, 1066 (¶ 15) (Miss. 2004) (discussing agreement of parties in open court). Though Arthur and Alicia's agreement was of record, this is not sufficient to ensure the absence of future conflict regarding these altered provisions. Therefore, we remand on this issue for the chancery court to memorialize the terms of the parties' final agreement regarding Arthur's visitation privileges.

CONCLUSION

¶ 41. We affirm the denial of Arthur's request for sanctions and attorney's fees, the award of Wells Fargo account # 7415 to Alicia, the award of attorney's fees to Alicia, and the chancellor's child-support and tuition-cost awards. Regarding the chancellor's omission of the $159,700 joint line of credit, we reverse and remand so this debt may be included in the equitable distribution of the marital estate. Additionally, we remand for the chancery court to make specific calculations as to the equitable distribution of the 2013 federal and state tax refunds in accordance with the prenuptial agreement and for proper memorialization of the parties' final agreement related to visitation privileges.

¶ 42. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

CARLTON, FAIR, GREENLEE AND WESTBOOKS, JJ., CONCUR. LEE, C.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. WILSON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., IRVING AND GRIFFIS, P.JJ. TINDELL, J., NOT PARTICIPATING.

WILSON, J., CONCURRING IN PART AND DISSENTING IN PART:

¶ 43. I concur in the majority's resolution of all issues in the appeal except the affirmance of the award of attorney's fees to Alicia. On that issue, I agree with Arthur that the parties' prenuptial agreement precludes the award. The parties' agreement states that, "[e]xcept as otherwise expressly provided,"

each of the parties hereby WAIVES and RELEASES any and all rights in the real or personal property of the other, ... or which may be assertable against the other, which he or she shall acquire by reason of marriage to the other, ... whether now or hereafter acquired, including without limiting the generality of the foregoing, the following:
....
5. Any right to receive support, temporary support, maintenance, separate maintenance, or alimony from the other during their marriage or following termination of their marriage, except as provided herein.
... The parties hereto covenant and agree and contract for adequate consideration, received, that in the event that either of them shall attempt to obtain a ... decree of separation or divorce ..., neither will seek any provision for any type of temporary or permanent support or maintenance or any form of alimony or any provision for the settlement of property rights of the parties, which is contrary to the provisions of this Agreement.... Alimony [provided for in this Agreement] is inclusive of all types of temporary and permanent support other than child support.

¶ 44. Under Mississippi law, an award of attorney's fees based on a spouse's inability to pay is a form of support. The Supreme Court has explained that Mississippi Code Annotated section 93-5-23 (Rev. 2015) grants "chancellors ... broad authority to make all orders touching the maintenance and alimony of a wife in a divorce proceeding." Dillon v. Dillon , 498 So.2d 328, 331 (Miss. 1986). The Court held that "[t]he scope of the statute is broad and includes granting chancellors the authority to award attorney[']s fees for divorce proceedings." Id. Thus, the court's authority to award attorney's fees in a divorce proceeding is a component of the court's statutory authority to award maintenance and support "as may seem equitable and just" under the circumstances. Miss. Code Ann. § 93-5-23.

¶ 45. Accordingly, the Supreme Court's statement in Haney v. Haney , 907 So.2d 948 (Miss. 2005), that "[a]n award of attorney's fees is nothing more than equitable distribution of a different flavor," id. at 957 (¶ 41), was not novel or unprecedented. The Court explained that "[s]uch awards are justified when the equities suggest one party should assist the other, and the other party is unable to pay." Id. It is well-established that "[i]f a divorcing spouse is financially capable of paying his or her attorney's fees, an award of attorney's fees is not appropriate." Brooks v. Brooks , 652 So.2d 1113, 1120 (Miss. 1995). The fact that an award on this basis requires proof of "inability to pay," id. , illustrates that such awards are in the nature of support. Therefore, I would hold that an award of attorney's fees based on an inability to pay is barred by the provisions of the parties' prenuptial agreement waiving support, maintenance, and other rights in each other's property beyond what is provided for in the agreement.

¶ 46. The prenuptial agreement would not bar an award of attorney's fees based on a finding of contempt or under the Litigation Accountability Act or Rule 11, and the majority seems to suggest that the award was or could have been justified based on Arthur's "litigiousness." Ante at (¶¶ 31-32). In support, the majority quotes various allegations that "Alicia's counsel noted to the court," that "Alicia's counsel explained," or that "Alicia reiterates on appeal." Id. However, allegations made by counsel are not evidence, Mason v. State , 440 So.2d 318, 319 (Miss. 1983), and the chancellor did not find that Arthur or his attorney engaged in contumacious or otherwise sanctionable conduct. The award of attorney's fees was based solely on Alicia's inability to pay her attorney without making a withdrawal from her 401(k) account.

¶ 47. I would hold that the prenuptial agreement precludes an award of attorney's fees based on Alicia's alleged inability to pay. With that exception, I concur in the majority's resolution of the issues raised on appeal.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., JOIN THIS OPINION.

      The scope and terms of the prenuptial agreement will be addressed in the discussion section of this opinion, with all relevant portions discussed where needed.

      In the interest of privacy, we substitute initials for the names of the two minors involved in the case.

      The Honorable G. Charles Bordis IV presided over all the parties' pretrial motions and hearings, as well as the parties' trial. Judge Bordis's tenure ended on December 31, 2014, however, and the Honorable Michael Fondren presided over the parties' posttrial motions.

      In addition to the 70/30 disparity in distribution, the agreement excluded Alicia, who left her career to help build Arthur's business and acted as his business manager, from reaping any benefits from his medical practice upon dissolution of the marriage "regardless of the extent to which [Alicia] may participate in the start up and management of that medical practice, with or without compensation[.]" Moreover, the agreement stated that if Alicia became the "primary breadwinner," she would only receive 50% of the marital assets, while Arthur received 70% as primary breadwinner.

      Mississippi Rule of Civil Procedure 11 -55 -5(1) provides in part:
      "[T]he court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorney's fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that ... an attorney or party unnecessarily expanded the proceedings by other improper conduct including, but not limited to, abuse of discovery procedures available under the Mississippi Rules of Civil Procedure.
      (Emphasis added).

      Cf. In re Nunnally , 506 F.2d 1024, 1027 (5th Cir. 1975) (holding that an award of attorney's fees in a divorce that is based on the needs and circumstances of the parties is considered a nondischargeable "support" obligation in bankruptcy); see also Setser v. Piazza , 644 So.2d 1211, 1217 n.1 (Miss. 1994) ("It is ... settled that attorneys' fees, as a factor in balancing the parties' financial needs, are undischargeable in bankruptcy.").


author: WESTBROOKS, J., FOR THE COURT:

text:
    Jerry REVETTE, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00543-COA
    Court of Appeals of Mississippi.
    December 5, 2017 Rehearing Denied April 24, 2018
    ATTORNEY FOR APPELLANT: JERRY REVETTE (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER
    BEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Jerry Revette, appearing pro se, appeals the judgment of the Circuit Court of Scott County denying his motion for postconviction relief (PCR). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In July 1987, Revette was indicted for three counts of rape and two counts of sexual battery/gratification of lust. Revette pleaded guilty to one count of rape and one count of sexual battery/gratification of lust and was sentenced to life plus ten years, to run consecutively. On March 17, 2017, thirty years after the original plea, Revette filed a PCR motion, arguing that his sentence was illegal. On March 23, 2017, the circuit court summarily denied Revette's PCR motion on the grounds that it was time-barred and without merit. Aggrieved, Revette now appeals. On appeal, Revette argues that his sentence is illegal and challenges the circuit judge's authority to impose a life sentence following a guilty plea.

STANDARD OF REVIEW

¶ 3. "This Court will not disturb a trial court's factual findings on a dismissal of a motion for postconviction relief unless they are found to be clearly erroneous." Edmondson v. State , 17 So.3d 591, 594 (¶ 5) (Miss. Ct. App. 2009) (internal quotation omitted).

DISCUSSION

Whether Revette's PCR motion is time-barred.

¶ 4. Revette filed his PCR motion on March 17, 2017, approximately thirty years after he pled guilty to rape and sexual battery/gratification of lust. Under the Uniform Postconviction Collateral Relief Act, a PCR motion shall be made within three years after entry of the judgment of conviction. Miss. Code Ann. § 99-39-5(2) (Rev. 2009). "That being said, there is an exception to the procedural bars for errors affecting the movant's fundamental constitutional rights." Bosarge v. State , 141 So.3d 24, 26 (¶ 7) (Miss. Ct. App. 2014) (citing Rowland v. State , 42 So.3d 503, 506-08 (Miss. 2010) ). "The right to be free from an illegal sentence is probably the most frequently recognized of these exceptions." Id. (citing Jones v. State , 119 So.3d 323, 326 (¶ 6) (Miss. 2013) ).

¶ 5. Revette argues that his PCR motion is not time-barred, because his sentence is illegal. Revette claims he was sentenced under an improper version of the statute, containing amendments from 1985, after he committed the crime. However, Revette misapprehends the law in effect at the time he committed the crime. The statute in effect at that time provided in relevant part:

Every person eighteen (18) years of age or older who shall be convicted of rape by carnally and unlawfully knowing a female child under the age of twelve (12) years, upon conviction, shall be sentenced to death or imprisonment for life in the state penitentiary; provided, however, any person thirteen (13) years of age or over but under eighteen (18) years of age convicted of such crime shall be sentenced to such term of imprisonment as the court, in its discretion, may determine. In all cases where the female child is under the age of twelve (12) years it shall not be necessary to prove penetration of the female's private parts where it is shown the private parts of the female have been lacerated or torn in the attempt to have carnal knowledge of her.

Miss. Code Ann. § 97-3-65(1) (Supp. 1977).

¶ 6. We cite to the 1977 supplement because it is the version that was in effect when Revette committed the offense. Revette was not sentenced under the revised 1985 statute, and his PCR motion is time-barred.

¶ 7. Notwithstanding the time-bar, Revette argues that the Mississippi Supreme Court has previously interpreted section 97-3-65 as a prohibition against a life sentence without a jury recommendation. Revette argues that Bester v. State , 188 So.3d 526 (Miss. 2016), supports his illegal-sentence claim. We do not agree.

¶ 8. In Bester , the defendant pled guilty to forcible rape and was sentenced under section 97-3-65(2). The sole issue presented to the Supreme Court was whether the trial judge had the authority to sentence the defendant to life imprisonment, absent a jury recommendation. Here, Revette was sentenced under section 97-3-65(1), and he challenges the trial judge's authority to sentence him to life imprisonment when he entered a guilty plea. The facts of Bester and Revette's claim are distinguishable. Therefore, Bester does not support Revette's arguments.

¶ 9. Additionally, the Supreme Court in Bester found that the life-imprisonment sentence under section 97-3-65 was within the trial judge's authority. Therefore, Bester actually undermines Revette's propositions that his sentence is illegal and that the trial judge lacked authority to sentence him to life imprisonment. The statute in effect at the time of Revette's sentence could have resulted in Revette being sentenced to death. As a result, Revette accepted a plea to life imprisonment to avoid a harsher penalty. Accordingly, we find this argument is without merit.

¶ 10. AFFIRMED.

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