author: BARNES, J.,

text:
    KNIGHTS MARINE & INDUSTRIAL SERVICES, INC., Appellant/Cross-Appellee v. GULFSTREAM ENTERPRISES, INC., Appellee/Cross-Appellant
    NO. 2016-CA-00064-COA
    Court of Appeals of Mississippi.
    DISPOSITION: 04/18/2017

      ATTORNEYS FOR APPELLANT: KEVIN M. MELCHI, JOHN MAJOR KI-NARD, ANDY LOWRY
    ATTORNEY FOR APPELLEE: STEPHEN WALKER BURROW
    BEFORE LEE, C.J., BARNES AND FAIR, JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1. This dispute stems from the cleanup efforts on the Mississippi Gulf Coast due to the Deep Water Horizon BP oil spill in 2010. Gulfstream Enterprises Inc. (Gulf-stream) sued Knights Marine & Industrial Services Inc. (Knights) under the open-account statute in the County Court of Jackson County, alleging Knights failed to pay the full balance owed to Gulfstream for providing a crew-transport vessel with a captain and crew. Gulfstream later amended its complaint to add a breach-of-contract claim. After a bench trial, the county court entered: (1) a judgment in favor of Gulfstream for $143,881.01 in compensatory damages; (2) pre-judgment interest of eight percent per annum from the date Gulfstream filed its original complaint through the entry of judgment, totaling $10,122.92; (3) post-judgment interest of eight percent per annum; and (4) attorney’s fees and expenses totaling $9,274.74; for a total judgment of $163,278.67. Gulf-stream’s request for punitive damages was denied.

¶2. Knights appealed to the Jackson County Circuit Court, and Gulfstream cross-appealed on the issues of pre-judgment interest, punitive damages, and Knights’s garnished funds to secure judgment. The circuit court affirmed the county court’s judgment in all respects.

¶ 3. Knights now appeals to this Court, and Gulfstream cross-appeals. Gulfstream claims the county court should have awarded pre-judgment interest starting on the date Knights failed to pay Gulfstream’s outstanding invoices, not the date Gulf-stream filed suit, Gulfstream also argues the county court erred in not awarding punitive damages, and in ordering Knights’s funds, which had been successfully garnished by Gulfstream, to be deposited in the court registry instead of immediately disbursed to Gulfstream. A request for attorney’s fees for the appeal and post-judgment collection efforts was made by Gulfstream as well.

¶4. On direct appeal, we affirm the $143,881.01 award to Gulfstream under the open-account statute. On cross-appeal, we affirm the denial of punitive damages to Gulfstream, but reverse and remand for the circuit court to determine the amount of pre-judgment interest and Gulfstream’s fees related to post-judgment-collection efforts and defending this appeal.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 5. As part of the clean-up efforts from the Deep Water Horizon oil spill, BP retained the services of numerous contractors, including United States Environmental Services LLC (USES). On May 31, 2010, USES contracted with Knights to “provide barges and tugboats, per the direction of USES,” and “[sjupply, install and maintain ocean barrier fencing as directed by USES.” In late June or early July 2010, Knights contacted Gulfstream about hiring a crew-transport vessel with a captain and crew, in order to fulfill its contract with USES. An agreement was reached between Gulfstream and Knights, and on July 8, 2010, Knights issued a purchase order stating Gulfstream would “provide a 42-foot crew transport vessel jet boat with captain and deckhand not including fuel” in order to “transport personnel [and supplies] from Biloxi to any of the barrier islands” at the rate of $2,400 per day.

¶ 6. From July 8, 2010, until December 4, 2010, Gulfstream claimed the vessel was available to provide whatever support or services USES needed. Gulfstream admitted that sometimes the vessel was on standby and not working, as either it was awaiting directions from USES or there were unsafe marine conditions. The vessel’s activity was recorded daily in the captain’s logs. However, starting on September 30, 2010, Knights claimed Gulf-stream’s vessel was not in operation at all but had been removed to a staging area for repairs and maintenance. The captain’s logs do not provide any details about the vessel’s activities from September 30 through December 5, 2010. Yet it is undisputed that Gulfstream invoiced Knights weekly for services, fuel, and other charges, whether the vessel was on standby or working. Knights, in turn, submitted a weekly invoice to USES for payment, charging USES $2,900 per day for the vessel, or a $500 markup from the amount Gulfstream billed Knights.

¶ 7. Gulfstream pointed out that during this time, the vessel could not be used for any other job or purpose, and it never was. Ultimately, Gulfstream contended Knights owed an outstanding balance of $143,-881.01 for services provided. Gulfstream made several requests to Knights for payment both verbally and in writing, but the balance remained unpaid. Knights contended that it only owed payment for those days where service was requested by Knights or USES, and actually performed by Gulfstream.

¶ 8. On July 23, 2013, Gulfstream sued Knights under the open-account statute of Mississippi Code Annotated section 11—53— 81 (Rev. 2012), and later amended the complaint to include a breach-of-contract claim. The parties waived their right to a jury trial. Testifying at the one-day bench trial in the Jackson County County Court were Greg Ladnier, president of Gulf-stream; Will Ladnier, Greg’s brother and boat captain; David Knight, Knights’s chief financial officer and fifty-percent shareholder; and Eric Hoffman, chief financial officer of USES. The court entered judgment for Gulfstream on compensatory damages of $143,881.01 under the open-account statute. Pre-judgment interest and attorney’s fees were also awarded to Gulfstream, but punitive damages were denied.

¶ 9. After the judgment was entered, Gulfstream tried to collect its judgment. An agreed order allowed Knights additional time to appeal to the circuit court and post a supersedeas bond. A stay was entered upon execution of the judgment, and bond was set at 125% of the total judgment, or $204,098.34. After the stay expired, Gulfstream filed petitions for writ of garnishment to several financial institutions in Jackson County to secure the judgment. All funds garnished from Knights’s bank accounts were tendered to the registry of the Jackson County Circuit Court. The court ordered that once cash reached 125% of the judgment, the funds served as a supersedeas bond and stayed the judgment. Gulfstream filed a motion to disburse these funds, but it was denied.

¶ 10. Knights appealed, and Gulfstream cross-appealed to the Jackson County Circuit Court, which affirmed the county court’s rulings. Appeal and cross-appeal were then taken to this Court.

ANALYSIS

I. Damages Under the Open-Account Statute

¶ 11. Knights argues that the county court erred in awarding $143,881.01 in compensatory damages to Gulfstream under the open-account statute because there were no services rendered for some of the invoices submitted, and Gulfstream was never entitled to a “standby rate” for the vessel. We disagree, and find sufficient evidence for the county court’s award of compensatory damages.

¶ 12. The county court is the finder of fact, and both the circuit court and this Court are bound by the county court’s judgment if supported by substantial evidence and not manifestly wrong. CEF Enters. Inc. v. Betts, 838 So.2d 999, 1002 (¶ 10) (Miss. Ct. App. 2003) (citations omitted). Moreover, “[a] judge sitting without a jury has sole authority for determining credibility of the witnesses.” Byrd Bros. LLC v. Herring, 861 So.2d 1070, 1073 (¶ 14) (Miss. Ct, App. 2003) (quoting Rice Researchers Inc. v. Hiter, 512 So.2d 1259, 1265 (Miss. 1987)).

¶ 13. There is no dispute that the relationship between Knights and Gulf-stream involved an open account under section 11-53-81. An open account is generally “an account based on continuing transactions between the parties which have not been closed or settled but are kept open in anticipation of further transactions.” Mauldin Co. v. Lee Tractor Co. of Miss., 920 So.2d 513, 515 (¶9) (Miss. Ct. App. 2006) (quoting Westinghouse Credit Corp. v. Moore & McCalib Inc., 361 So.2d 990, 992 (Miss. 1978)). “[A]n open account must contain a ‘final and certain agreement on price.’” Douglas Parker Elec. Inc. v. Miss. Design & Dev. Corp., 949 So.2d 874, 877 (¶ 8) (Miss. Ct. App. 2007) (quoting McLain v. W. Side Bone & Joint Ctr., 656 So.2d 119, 123 (Miss. 1995)). Our supreme court has recognized that “a collection for recovery, on an open account, amounts to a collection action where the debt is based on a series of credit transactions.” Franklin Collection Serv. Inc. v. Stewart, 863 So.2d 925, 930 (¶ 14) (Miss. 2003). In an open-account action, the date of purchase, the kind of goods, the quantity, and the price must be shown. Motive Parts Warehouse Inc. v. D&H Auto Parts Co., 464 So.2d 1162,1165 (Miss. 1985) (citation omitted).

¶ 14. Knights argues that in order for it to owe Gulfstream under the open account, there must have been work performed as part of a series of transactions between the parties. Knights contends that Gulf-stream provided no evidence of any work performed by the vessel or any expenses incurred from September 30 through December 5, 2010. Moreover, Knights claims there was no contract or “standby rate,” but merely a purchase order indicating the $2,400-per-day rate. David Knight testified even if there were a standby rate, it would generally be one-third to one-half the daily rate. Knights contends Gulfstream’s invoices are fraudulent because Gulfstream cannot show it worked during this time-frame.

¶ 15. Undisputably, Will testified that there were “definitely standby days” when the weather was unsafe, or the boat needed maintenance. However, he claimed the standby rate was the same as the day rate, because Gulfstream could not use the boat for any other job—it had to be ready to work for USES. Greg also affirmed this point, but admitted that there was nothing in writing about a “standby rate”—it was just a “default understanding.”

¶ 16. The daily captain’s logs entered into evidence also show periods of time when the vessel was not actively working on the cleanup project. From July 2010 until the end of September 2010, Gulf-stream’s daily logs are very detailed about the vessel’s numerous activities. However, from September 30 to October 9, 2010, the log shows “foul weather” and “preventative maintenance was performed during downtime.” During this period Will testified that the boat was in dry storage being sandblasted but claimed the vessel could be back in the water in less than an hour for use. Will stated that Gulfstream coordinated with USES’s schedule to make sure its maintenance did not interfere with any possible work—when USES put Gulf-stream on standby, Gulfstream would do the maintenance, so it “never missed a lick.”

¶ 17. Will testified that from October 31 through December 5, 2010, Gulfstream was not performing any tasks for USES, but was on standby status. During this period, the daily captain’s logs had the same entry: “continued support” for transporting supplies to the various barrier islands. Gulfstream contends it was obligated to have the vessel available should USES need it; thus, the vessel was not available for any other entity, and Gulfstream was owed payment for these days. Gulfstream further claimed the vessel was always available seven days a week for twelve hours per day for USES. However, Knights argues that this availability was merely a business decision on Gulfstream’s part. Yet neither USES nor Knights had any complaints about Gulfstream’s performance or availability on the project.

¶ 18. As the circuit court noted, whether or not Gulfstream performed the work is a question for the fact-finder (here the county court), and does not change the legal status of the relationship. Gulfstream’s invoices to Knights do not specify a standby rate or any exclusions. We agree. Gulf-stream presented substantial evidence that it was hired to provide a vessel whether work was performed or not, and it could not perform work for another entity while obligated to USES’s projects. Moreover, Knights’s equipment-rental worksheets, provided to USES, showed the “eight-hour day rate” was the same as the “standby rate”—$2,900. Greg testified the boat was available, whether in service or on standby, for approximately 150 days, for no more than twelve hours per day. At oral argument, Gulfstream’s counsel likened the usage of the vessel to a lease. Further, the evidence on the captain’s logs was not clear as to which days were worked, but regardless, Gulfstream was hired to provide a vessel with a crew, not to perform tasks.

¶ 19. Based upon the evidence, we cannot say the county court abused its discretion in awarding Gulfstream compensatory damages of $143,881.01.

CROSS-APPEAL

II. Pre-Judgment Interest

¶20. The county court awarded Gulfstream $10,122.92 in pre-judgment interest, at eight percent per annum. Gulf-stream argues that the county court erred in calculating the interest from the date Gulfstream filed its complaint, instead of the date Knights breached the unwritten contract. It also claims that the circuit court erred in finding the claim was not liquidated before judgment. We affirm the county court’s award of pre-judgment interest to Gulfstream, but remand for its computation from the date Knights failed to pay the purchase-order invoices.

¶21. Interest on judgments is governed by Mississippi Code Annotated section 75-17-7 (Rev. 2016):

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

Open accounts are a form of contract. “Suits on open accounts] are always contractual matters, because an underlying contract must exist for the open account to exist. ... ‘[A]n open account is an unwritten contract.’” Lyons & Assocs. P.A. v. Precious T. Martin Sr. & Assocs. PLLC, 87 So.3d 444, 453-54 (¶33) (Miss. 2012) (quoting McArthur v. Acme Mech. Contractors Inc., 336 So.2d 1306, 1308 (Miss. 1976)). An award of pre-judgment interest is not rationally made “where the principal amount has not been fixed prior to judgment.” Stanton & Assoc. Inc. v. Bryant Constr. Co., 464 So.2d 499, 504 (Miss. 1985).

¶22. Here, the parties were operating under an open account, a type of unwritten contract; thus, Gulfstream should be granted pre-judgment interest if Knights’s debt was liquidated. We disagree with the circuit court’s finding that it was not. A debt is liquidated when it is “agreed on by the parties, readily determinable or fixed by operation of the law.” Johnny C. Parker, Mississippi Law of Damages § 4:1 (3d ed. 2014) (citing Woodmansee v. Garrett, 247 Miss. 148, 153 So.2d 812 (1963)). The invoices and financial documents entered into evidence all indicate Knights’s liability as $143,881.01-the disputed issue is whether the amount was owed at all. This situation is similar to T.C.B. Construction Co. v. W.C. Fore Trucking Inc., 134 So.3d 701, 705 (¶ 18) (Miss. 2013), where unpaid invoices—not the amount of the unpaid invoices—constituted the liability for breach of contract, and were thus considered liquidated. In T.C.B., Fore Trucking entered into a contract with T.C.B. to remove debris north of Highway 53 after Hurricane Katrina. Id. at 702-03 (¶2). Later, T.C.B. performed debris removal south of Highway 53 as well at the request of Fore’s principal, but Fore refused to pay, as this work “was not contemplated by the contract.” Id. at 703 (¶ 4). Evidence surfaced that Fore had submitted T.C.B.’s invoices to Harrison County and been paid in full for all debris removal—at a total of $12.3 million. Id. After a jury trial, T.C.B. was awarded compensatory damages, but the circuit court awarded prejudgment interest from the date the complaint was filed. Id. at (¶ 6). This Court reversed on that issue, awarding interest from the date of breach, and the Mississippi Supreme Court affirmed us in that regard. Id. at (¶ 7), 706 (¶ 15).

¶ 23. In the instant case, the same principles apply. We affirm the grant of prejudgment interest, but reverse as to the date pre-judgment interest begins and remand to the circuit court for a calculation of pre-judgment interest from the date the breach occurred.

III. Punitive Damages

¶24. Gulfstream argues that the county court’s denial of punitive damages was error because Knights deliberately delayed or withheld payment fi’om Gulf-stream; specifically, Gulfstream contends that Knights’s conduct was malicious because it withheld a percentage of payments from Gulfstream’s invoices, even though USES had paid Knights the full amount. In 2012, Knights requested Gulfstream take a ten-to-twenty-percent discount from the balance owed because BP did not pay USES all of the retainer being held; thus, USES and Knights did not receive full payment for the invoices.

¶ 25. An award of punitive damages is within the discretion of the trier of fact. Bar-Til Inc. v. Superior Asphalt Inc., 164 So.3d 1028, 1031 (¶ 14) (Miss. Ct. App. 2014).

An award of punitive damages is an extraordinary remedy, reserved for the most egregious cases, and designed to discourage similar misconduct. In a breach of contract case, the plaintiff “must prove that the breach was the result of an intentional wrong or that a defendant acted maliciously or with reckless disregard of the plaintiffs rights.”

T.C.B., 134 So.3d at 704 (¶ 9) (internal and end citations omitted). In determining whether punitive damages are appropriate, the judge “decides whether, under the totality of the circumstances and viewing the defendant’s conduct in the aggregate, a reasonable, hypothetical trier of fact could find either malice or gross neglect/reckless disregard.” Bar-Til, 164 So.3d at 1031 (¶ 14) (quoting Ciba-Geigy Corp. v. Murphree, 663 So.2d 867, 863 (Miss. 1994)).

¶26. Here, the trier of fact was the county-court judge, who denied punitive damages. The circuit court, in affirming the county court, cited Dynasteel Corp. v. Aztec Industries Inc., 611 So.2d 977, 985 (Miss. 1992), for the proposition that in open-account cases, it would be rare to find the “intentional wrong, insult, abuse, or such gross negligence,” as could be found in a traditional breach-of-contract case. In that case, the Mississippi Supreme Court said:

[Mjore often than not the failure to pay has more to do with inability to do so rather than obstinance. We have been unable to find any precedent for an award of punitive damages on an open account case. It would be the rarest of occasions that such an award would be proper.

Id.

¶ 27. The county court’s denial of punitive damages was proper. The trier of fact could easily have found that Knights did not act with a sufficient level of malice to warrant them. Knights paid Gulfstream $262,782.85 of the $396,654.86 Gulfstream billed. Knights was taking a reduction in funds received from USES because USES was taking a reduction from BP, not to mention the delay in payments due to BP’s auditing procedure. The record indicates Knights attempted to negotiate a settlement with Gulfstream starting in July 2012 through April 2013, and was nearly successful until Gulfstream insisted the offer of $129,492.92 be paid within ten days. We cannot find that the county court erred in denying punitive damages.

IV. Garnishments and Supersedeas Bond

¶ 28. Gulfstream argues that the county court erred in ordering Knights’s funds, successfully garnished by Gulfstream, to be deposited in the court registry in lieu of Knights’s posting a su-persedeas bond, and also in later denying the funds’ disbursement to Gulfstream.

[T]he general purpose of the supersede-as bond is to effect absolute security to the party affected by the appeal. ... The amount of a supersedeas bond should be sufficient to protect the appel-lee in his judgment. ... The bond is the typical means of giving the appellee security. However, the [cjomi may approve security in the form of cash or property.

Tupelo Redev. Agency v. Gray Corp., 972 So.2d 495, 524 (¶ 91) (Miss. 2007) (emphasis added) (citation omitted). The superse-deas bond should be in the amount of 125% of the judgment. M.R.A.P. 8(a); URCCC 5.08. To stay the execution of judgment, “[t]he court shall require the giving of security by the appellant in such form and in such sum as the court deems proper ....” M.R.A.P. 8(b)(1). “The trial court ... may approve security in the form of a cash or property bond.” M.R.A.P. 8 cmt. The standard of review regarding the posting of a supersedeas bond is abuse of discretion. Section 11-35-23(1) of the Mississippi Code Annotated (Rev. 2004) provides that “any indebtedness of the garnishee to the defendant, except for wages ..., shall be bound from the time of the service of the writ of garnishment, and be appropriable to the satisfaction of the judgment or decree .... ” In a letter opinion issued in 1992, the Mississippi Attorney General advised that “all garnishment monies should be paid into the court before they are disbursed to the judgment creditor.” Miss. Att’y Gen. Op., 1992 WL 613986, Tate (June 3,1992).

¶ 29. On July 10, 2014, the county court ordered a stay of execution on the judgment until July 16, 2014. Knights had not posted a supersedeas bond by that date, and Gulfstream began garnishing Knights’s assets at numerous financial institutions, which successfully yielded $205,813.07. On July 22, 2014, the county court ordered the attached funds to be deposited in the Jackson County Circuit Court registry to replace the bond requirement, which was $204,098.34. On August 12, 2014, Gulfstream moved the court to disburse Knights funds from the registry, but it was denied.

¶ 30. It is undisputed that Knights never obtained a supersedeas bond. However, here, the county court’s requiring the garnished funds be deposited in the court registry had the same effect as a superse-deas bond—to provide absolute security to Gulfstream. The amount deposited was approximately $1,700 more than the 125%-of-the-judgment bond requirement. As the circuit court and Knights remarked, Gulf-stream is probably more secure with the cash deposit than the bond. Additionally, Rule 8(b) allows the court to create judgment security “in such a form and in such a sum as the court deems proper.” The garnishment statute allows for garnished funds to be used to satisfy a judgment under court order. Therefore, we cannot find the county court abused its discretion in ordering the funds be deposited in the court registry in lieu of a supersedeas bond, or denying immediate disbursement of these funds.

Y. Post-Judgment Attorney’s Fees

¶ 31. Gulfstream requests attorney’s fees and costs for its post-judgment collection efforts and this appeal. Under the open-account statute, a defendant “shall be liable for reasonable attorney’s fees to be set by the judge for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the plaintiff.” Miss. Code Ann. § 11-53-81. We find it reasonable to award Gulfstream its attorney’s fees for post-judgment collection efforts that resulted in the garnishments. Further, we find that Gulfstream’s attorney’s fees in defending the appeal would be proper under the statute; our usual practice in such instances is to award fees equal to “one-half of what was awarded in the trial court.” See Bailey v. Chamblee, 192 So.3d 1078, 1083 (¶ 16) (Miss. Ct. App. 2016) (citation omitted). We grant one-half of the attorney’s fees and expenses awarded to Gulfstream by the circuit court, and remand to the circuit court for a calculation of those fees and of the attorney’s fees for post-judgment collection efforts.

¶ 32. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY IS AFFIRMED IN PART, AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT/CROSS-APPELLEE AND ONE-HALF TO THE APPELLEE/CROSS-APPELLANT.

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

      . Knights was a contractor under USES tasked with numerous jobs, including supplying personnel and materials for the clean-up efforts. Knights had approximately three subcontractors working for it.

      . Knights contends its billing arrangement and history with USES is not pertinent to the merits of this case, but we find its understanding necessary to show the circumstances surrounding Gulfstream’s unpaid invoices. The record indicates USES paid Knights a total of $2,648,903.87 for all of the services contracted by Knights for the oil-spill-clean-up efforts, which would include Gulfstream’s charges, and USES paid Knights all but approximately $20,000 of the charges. However, Knights claimed it received less than it was entitled to from USES. In total, Knights invoiced USES approximately $4.7 million for work on the oil spill from its subcontractors, but Binights explained that it had to take cuts in payments owed from USES because BP was auditing and delaying payments to USES, which subsequently delayed and decreased payments to Knights. Also, some funds were retained by USES from payments Knights received, which USES explained was a customary billing practice for large oil spills. USES asked Knights to discount its bills for the project, and Knights asked its subcontractors to do the same. Binights stated that all of its contractors were taking a significant reduction off their initial invoices. In July 2012, Binights requested that Gulfstream take a twenty-percent reduction in the total amount invoiced because of compromises it made with USES to finalize payments to Knights and Gulf-stream. Gulfstream refused. The parties eventually agreed that Binights would pay Gulf-stream $129,492.92, but Gulfstream requested it be paid within ten days, and Knights refused to do so.

      . Gulfstream invoiced Binights a total of $396,654.86 for the vessel rental, fuel, and other various charges. Binights paid Gulf-stream a total of $252,782.85, leaving an unpaid balance of $143,881.01.

      . Hoffman testified by deposition as USES’s Mississippi Rule of Civil Procedure 30(b)(6) representative.

      . Knights did not raise fraud as an affirmative defense under Mississippi Rule of Civil Procedure Rule 8(c).

      . Knights supplemented its authority after oral argument under Mississippi Rule of Appellate Procedure 28(k), citing Stanton & Associates Inc. v. Bryant Construction Co., 464 So.2d 499, 503 (Miss. 1985), for the proposition that unless there is a price agreement between the parties, the claim for funds is unliquidated and does not meet the itemization standards to qualify as an open account. Applied to this case, Knights suggests that because there was no price understanding for a standby rate, as there was for the daily rate, there was no "meeting of the minds” and thus no open account for standby charges. Yet Knights also maintains that USES never authorized a standby rate for Gulfstream. We find Stanton distinguishable; in that case, it was undisputed that there was never a price agreement, unlike here, where the daily rate of $2,400 was agreed upon by both parties for providing the vessel.

      . Professor Jeffrey Jackson’s treatise, Mississippi Civil Procedure, states:
      Although the Mississippi Supreme Court has yet to address the particular standard of review applicable to a trial court's ruling on the posting of a supersedeas bond, several other states have addressed the issue. These courts have generally held that "the standard for reviewing the sufficiency of a su-persedeas bond is abuse of discretion.”
      2 Jeffrey Jackson et al., Mississippi Civil Procedure § 19:26 (2016) (discussing Mississippi Rule of Civil Procedure 62 stay of proceedings to enforce a judgment).

      . This opinion is in accord with the statute as section 11-35-23(5) provides that "[t]he circuit clerk may, in his or her discretion, spread on the minutes of the county or circuit court, as the case may be, an instruction that all garnishment defendants shall send all garnishment monies to the attorney of record[.]” Here, there is no indication that the clerk had entered such an instruction.

      . The county court specifically stated: "Once cash or checks have been tendered to the Circuit Clerk totaling 125% of the judgment (presently $204,098.34), those funds shall act as a supersedeas bond until further order of this Court.”


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    L.M. BIRGE, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01036-COA
    Court of Appeals of Mississippi.
    DISPOSITION: 04/18/2017

      ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES BENJAMIN ALLEN SUBER
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART JASON L. DAVIS
    BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. L.M. Birge was indicted on the charge of first-degree murder in the death of Callie Ware. Birge was ultimately convicted of manslaughter and sentenced to fifteen years in the custody of the Mississippi Department of Corrections, with ten years to serve and five suspended. On appeal, Birge argues an insufficiency of the evidence since the State of Mississippi failed to prove that he did not act in necessary self-defense. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On August 27, 2013, Callie and her sister, Tikea, were at Callie’s residence. Birge’s daughter, Rose, came by to talk to Callie. A fight broke out between Callie and Rose inside the residence. The fight eventually moved to the street. Although the versions of events differ, it is undisputed that Birge shot Callie in the chest with a shotgun, and Callie died from her injuries.

¶ 3. Birge was indicted on the charge of first-degree murder. At trial, Birge testified in his own defense. Birge testified that when he learned of the fight, he went to Callie’s residence to check on his daughter. When Birge arrived at Callie’s residence, a girl came out with a gun. As a result, Birge left and went to his house to get a gun.

¶ 4. When Birge returned to Callie’s residence, he was unable to find anyone in or near the residence. He went around to the back of the residence and noticed that the fight between Callie and Rose had moved to the street. Birge stated he saw Callie pulling his daughter’s hair and yelled for them to stop. Birge further stated he heard someone say, “She gonna beat her .... Nobody going to stop it.” Birge then testified as follows:

And I got my gun, I went on out in the street. I struck [Callie], trying to break up the fight. I struck [Callie] across the back with the gun, tried to break up the fight. [Callie’s mother, Santonia,] ran up behind me and caught me and we started tussling because she seen I had hit her daughter with the gun. She tried to take it from me. She tried to take it. We started tussling with the gun and the gunshot.

¶ 5. Santonia testified that she and her husband, Oliver, went to Callie’s residence when they learned of the fight. When they arrived, Santonia got out of the car and saw a fight in the street. Santonia stated that although there were quite a few people around, the fight was between Callie and Rose only. Santonia described the fight as a fistfight,

¶ 6. Santonia further testified that as she was walking toward the fight, she heard a gunshot. She then saw her daughter fall. At that point, Santonia turned around and saw Birge with a gun. As a result, Santo-nia “went to wrestling with him.” Santonia testified that she was certain she did not begin “tussling” with Birge until after Callie had been shot. Santonia also testified that Birge was the only person with a gun.

¶ 7. Tikea testified that the fight originated inside Callie’s residence, but eventually moved to the street. Tikea acknowledged that while inside Callie’s residence, during the initial fight between Callie and Rose, she got her sister’s gun, which was on top of the refrigerator. Tikea claimed she never left Callie’s residence with the gun. However, Shequita Dostry, Callie’s neighbor, testified that when Callie and Rose came out of Callie’s residence, Tikea came down the stairs, and was standing at the bottom of the steps, with a gun in her hand. Dostry stated that she took the gun away from Tikea and put it back inside Callie’s residence.

¶ 8. Tikea testified that she saw Birge walk from behind Callie’s residence with what appeared to be a big stick. Tikea saw Birge lift up the gun and then heard a gunshot. Tikea subsequently saw Callie fall. After Callie fell, Tikea saw Santonia approach Birge and “tussle with him with the gun.”

¶ 9. Tikea stated Birge was alone just prior to the shooting. She described Birge as follows:

Like he just, like I said, he just walked up like a regular person, like, you know, like I said, I thought he had a stick in his hand. He walked up from the grass, walked in the street. I mean it was like he didn’t even [try] to figure out what was going on. It was just like he, he was just ready to shoot.

¶ 10. Birge was convicted of manslaughter and sentenced to fifteen years, with five years suspended, leaving ten years to serve in the custody of the Mississippi Department of Corrections. Birge filed a motion for a judgment of acquittal notwithstanding the verdict or, in the alternative, a new .trial, which the circuit court denied. Birge now appeals and argues: (1) there is insufficient evidence to support the verdict, since the State failed to prove that he did not act in necessary self-defense, and (2) the verdict is against the overwhelming weight of the evidence, which established that Birge acted in necessary self-defense.

ANALYSIS

I, Sufficiency of the Evidence

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

¶ 12. The elements of manslaughter include “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, -without authority of law, and not in necessary self-defense.” Miss. Code Ann. § 97-3-35 (Rev. 2006). Mississippi Code Annotated section 97-3-15(l)(f) (Rev. 2006) provides:

The killing of a human being ... shall be justifiable ... [w]hen committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished!.]

“When self-defense is raised, the State bears the burden of proving beyond a reasonable doubt that the defendant was not acting in necessary self-defense.” Harris v. State, 937 So.2d 474, 481 (¶ 23) (Miss. Ct. App. 2006).

¶ 13. Birge argues the evidence was insufficient to support the verdict of manslaughter sinee the State failed to prove beyond a reasonable doubt that he did not act in necessary self-defense. Birge asserts “the evidence was such that no reasonable juror could find beyond a reasonable doubt that [he] did not have a reasonable apprehension of an imminent threat of great personal injury to his daughter.” We disagree.

¶ 14. Just before Callie’s death, Callie and Rose were engaged in a fistfight in the street. Neither Callie nor Rose had a weapon. Although Birge may have initially seen Tikea with a gun outside of Callie’s residence, Birge admitted on cross-examination that when he returned, he did not see Tikea. Moreover, Birge admitted that when he returned, he did not see anyone on the street with a gun. In fact, the testimony shows the only person with a gun at the scene was Birge. Thus, the record indicates that Birge’s subjective fear of imminent danger and his subsequent use of deadly force were unreasonable and unnecessary under the . circumstances.

¶ 15. Additionally, as section 97-3-15(l)(f) implies, a self-defense claim involves the intentional killing of a human being. Here, according to Birge, he did not intentionally kill Callie. Instead, Birge claims the gun went off by accident while he and Santonia were tussling. Thus, the record, including Birge’s own testimony, negates Birge’s claim of self-defense or defense of others.

¶ 16. Viewing the evidence in the light most favorable to the State, we find sufficient evidence was presented to support the verdict of manslaughter. As a result, the circuit court’s denial of Birge’s motion for a judgment notwithstanding the verdict was proper.

II. Weight of the Evidence

¶ 17. “When reviewing a denial of a motion for [a] new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). The evidence is weighed in the light most favorable to the verdict. Id. Birge argues the overwhelming weight of the evidence shows that he acted in self-defense or defense of others. We disagree.

¶ 18. The record shows conflicting testimony was presented regarding Callie’s death. “Where the verdict turns on the credibility of conflicting testimony and the credibility of the witnesses, it is the jury’s duty to resolve the conflict.” Nicholson v. State 523 So.2d 68, 71 (Miss. 1988). Here, the jury was instructed on self-defense, defense of others, and accident and misfortune. The jury considered the evidence and Birge’s theory of the case. The jury had the authority to assess the credibility of the witnesses and to give weight to the testimony of the witnesses.

¶ 19. We do not find the verdict to be so contrary to the overwhelming weight of the evidence that to allow the verdict to stand would sanction an unconscionable injustice. Thus, we find the circuit court’s denial of Birge’s motion for a new trial was proper.

¶ 20. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT, OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF FIFTEEN YEARS, WITH TEN YEARS TO SERVE AND FIVE YEARS SUSPENDED, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

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

      . Testimony from other witnesses established that the girl was Tikea.


author: IRVING, P.J.,

text:
    Suresa Young TODD, Appellant v. Derrium TODD, Appellee
    NO. 2015-CA-01107-COA
    Court of Appeals of Mississippi.
    DISPOSITION: 04/18/2017

      ATTORNEYS FOR APPELLANT: SARAH LYNN DICKEY, J. KEITH PEARSON
    ATTORNEY FOR APPELLEE: MILDRED J. LESURE
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   IRVING, P.J.,

FOR THE COURT:

¶ 1. When Suresa Young Todd and Der-rium Todd divorced, they agreed that they would share joint physical and legal custody of their daughter. But the agreement incorporated into their divorce judgment did not include a custody schedule. Following Derrium’s successful request for custody modification and physical custody of their child, Suresa claims the Tate County Chancery Court mistakenly held that Der-rium did not have to prove a material change in circumstances adverse to the child’s best interests. We agree, so we reverse the chancellor’s judgment and remand the case for further consideration.

FACTS

¶ 2. Derrium and Suresa were married in September 2008. They lived with Derri-um’s parents in Coldwater, Mississippi, for a short time before moving nearby to Como, Mississippi. Their daughter was approximately one year old when they separated in late 2009. After the separation, Derrium and the child moved back into his parents’ house. The record is unclear, but it appears as though Suresa remained in Como.

¶ 3. In 2010, Derrium earned an associate’s degree and transferred to Mississippi State University in Starkville, Mississippi. The record contains conflicting accounts regarding where the child lived. Derrium and his parents testified that the child lived almost entirely with his parents. However, Suresa and her mother testified otherwise. It was undisputed that the child began attending Head Start in Coldwater during 2011. Derrium moved back to Cold-water after he earned a bachelor’s degree in accounting.

¶ 4. In December 2012, Derrium and Suresa filed their joint complaint for an irreconcilable-differences divorce and an agreement purportedly resolving all potential property, custody, and support issues. Per their agreement, they would share joint physical and legal custody of their daughter, but the agreement did not include a custody schedule, and they did not ask the chancellor to provide one. In March 2013, the chancery court entered a final judgment of divorce incorporating the agreement that the chancery court found “adequate and sufficient.” It is undisputed that in December 2013, the child began living with Suresa during each week and Derrium each weekend. That arrangement continued after Derrium’s May 2014 move from his parents’ house to his own home in Horn Lake, Mississippi.

¶ 5. In August 2014, Derrium filed a complaint for physical custody. He claimed that custody modification was warranted because there had been a material change in circumstances. More specifically, Derri-um claimed that Suresa had been living with her mother, he was concerned that Suresa was not caring for their daughter, and he “fear[ed] for her safety and care.” Suresa responded with an answer and counterclaim for physical custody. According to Suresa, joint physical custody was no longer feasible because of the distance between her home and Derrium’s.

¶ 6. The parties went to trial on May 22, 2015. The chancellor heard testimony from multiple people who generally described a child who was happy, thriving, and well-loved by both parents and her extended family, who were extraordinarily hesitant to say anything negative about Derrium or Suresa. Ultimately, the chancellor entered the following ruling:

Both parties have come in and alleged that it’s unworkable and that they both want full custody of the child and want the noncustodial parent to pay child support. And so in a situation like that, the [e]ourt has to make a ruling about what is in the best interest of the child. And, actually, in a case like that, no one has an automatic [h]ead [sjtart. This is not like a case that [Suresa] was awarded custody and [Derrium is] coming in trying to change it and he would have to show a substantial and material change in circumstances' to change that, or that [Derrium] had custody and [Suresa is] coming in and asking to change it, saying that there is a substantial and material change in circumstances that adversely affects the child. In this situation, we just have a divorce decree with a custody arrangement that is not working again. So I have to do the same analysis I would have to do if this was the first time custody had ever been awarded to either one of you.

After conducting an Albright analysis, the chancellor awarded Derrium physical custody of the child. The chancellor awarded Suresa liberal visitation, and sua sponte ordered her to pay child support. The judgment memorializing the chancellor’s bench opinion provided, among other things, that “[n]either party was granted permanent physical custody in the divorce decree and said decree remained silent as to where the child would reside.” Suresa appeals.

DISCUSSION

¶ 7. According to Suresa, it was necessary to find a material change in circumstances adverse to the child’s best interest before modifying custody. In domestic-relations cases, we “will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion ... or [applied] an erroneous legal standard[,]” or the chancellor “was manifestly wrong” or arrived at a decision that was “clearly erroneous.” In re Dissolution of Marriage of Wood, 35 So.3d 507, 512 (¶ 8) (Miss. 2010). We review questions of law de novo. Id. As always, we are mindful that “the polestar consideration in child[-]custody cases is the best interest and welfare of the child.” Albright, 437 So.2d at 1005.

¶ 8. It was clearly erroneous for the chancellor to conclude that there had not been a prior custody determination. Derri-um and Suresa’s agreement to share joint physical and legal custody of their daughter was incorporated in the divorce judgment, despite the fact that the agreement did not specify how the joint physical and legal custody would be executed. In other words, it did not specify how each parent would share the physical custody of their child. Nevertheless, neither of them sought to set aside the divorce judgment on the basis that the chancery court never should have found it “adequate and sufficient.” Instead, they both filed separate requests to modify custody under different rationales, and they each claimed they should have physical custody of their child.

¶ 9. “[I]n joint custody cases, [the Mississippi Supreme] Court has stated that ... to modify child custody, it must be proven that a material change in circumstances has occurred that adversely affects the welfare of the child.” Porter v. Porter, 23 So.3d 438, 447 (¶ 23) (Miss. 2009). Furthermore, the material change in circumstances adversely affecting a child must have occurred since the prior custody award. Harper v. Harper, 926 So.2d 253, 255 (¶ 7) (Miss. Ct. App. 2006). Consequently, the chancellor also applied an erroneous legal standard when she concluded that it was not necessary for either party to demonstrate that a material change in circumstances occurred adverse to their child’s best interest. See Rutledge v. Rutledge, 487 So.2d 218, 220 (Miss. 1986) (holding that modification of joint custody is “manifestly erroneous” without first finding that there had been a material change in circumstances adversely affecting a child). We must reverse the chancellor’s judgment, and remand the case to the chancellor for a decision on the merits of Derrium’s complaint and Suresa’s counterclaim.

¶ 10. We also note that Derrium’s complaint did not include a request that Suresa pay child support. The supreme court has held that it is error for a chancellor to sua sponte order a party to pay child support “absent any notice that [the party] would be required to defend such a proposition and absent any notice that the court was considering ordering [the party] to pay child support.” Morris v. Morris, 359 So.2d 1138, 1139 (Miss. 1978). Suresa’s own request for child support did “not create notice that should she fail in her claims for child support, that she [would become] subject solely by virtue of her own petition to having a child support obligation placed on her.” See Massey v. Huggins, 799 So.2d 902, 910 (¶31) (Miss. Ct. App. 2001). Consequently, we must also reverse that aspect of the chancellor’s judgment.

¶ 11. One final matter bears discussion. If, on remand, the chancellor finds no merit to Derrium’s complaint or Suresa’s counterclaim, Derrium and Suresa will still have joint physical custody of their child. It will be necessary to determine a custody schedule, as it was probably error to find that the parties’ agreement was “adequate and sufficient” without one. See Selman v. Selman, 722 So.2d 547, 554 (¶33) (Miss. 1998) (holding that plain error resulted where a chancellor’s child-support award was ambiguous, and it was necessary to remand the issue for clarification “to prevent friction between the parties”). Derri-um and Suresa could resolve the issue through an agreement that the chancellor finds “adequate and sufficient” before incorporating it into an amended divorce judgment. See Miss. Code Ann. § 93-5-2(2) (Rev. 2013). Alternatively, they could allow the chancellor to resolve the issue for them. See Miss. Code Ann. § 93-5-2(3) (Rev. 2013). Under either circumstance, a joint-physical-custody schedule should provide each parent with “significant periods of physical custody ... in such a way so as to assure [their] child of frequent and continuing contact with both parents.” See Miss. Code Ann. § 93-5-24(5)(e) (Rev. 2013). But that does not necessarily mean that each parent would have to get equal time with their daughter. See Collins v. Collins, 20 So.3d 683, 692 (¶44) (Miss. Ct. App. 2008).

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

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

      . According to Derrium, he lived off of student loans, went back to Coldwater every other weekend and during breaks, and maintained two jobs to provide for all of his daughter's needs while he was at Mississippi State.

      .Derrium was twenty-six years old at that time. He was working as an assistant branch manager at a Regions Bank location in Memphis, Tennessee. Suresa was twenty-seven, and she anticipated earning a degree in social work from the University of Mississippi. Approximately three months earlier, she had given birth to another child whose father, a National Guardsman, had recently been sentenced to prison for possession of marijuana. As of the trial, Suresa had been living with her mother in Senatobia, Mississippi, so her mother could help take care of the newborn baby. But Suresa said that she still had her Como residence, and she was planning to move back into it shortly after the trial.

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

      . Derrium's complaint did not include a request that Suresa pay child support.

      . "There shall be a presumption that joint custody is in the best interest of a minor child where both parents have agreed to an award of joint custody.” Miss. Code Ann. § 93-5-24(4) (Rev. 2013).

      . See Pearson v. Pearson, 11 So.3d 178, 181-82 n.1 (Miss. Ct. App. 2009) (providing that a joint petition for custody modification is necessary to trigger Mississippi Code Annotated section 93-5-24(6) (Rev. 2013), which states that “[a]ny order for joint custody may be modified or terminated upon the petition of both parents or upon the petition of one (1) parent showing that a material change in circumstances has occurred”).

      . Our decision should not be construed as an adjudication that the chancellor would be prohibited from allowing Derrium to amend his complaint on remand. That issue has not been raised on appeal, so we decline to comment upon it aside from stating that it is a matter left to the chancellor's sound discretion.