author: ISHEE, J.,

text:
    Theodosius M. TORREY a/k/a Theodosius Maurice Torrey a/k/a T.M. Torrey a/k/a “Loco” a/k/a Theodosius M. Torrey, Sr. a/k/a Maurice Torrey a/k/a Theododius Maurice Torrey, Appellant v. STATE of Mississippi, Appellee
    NO. 2014-KA-00978-COA
    Court of Appeals of Mississippi.
    02/28/2017
    Rehearing Denied August 1, 2017
    Certiorari Denied November 2, 2017

      ATTORNEY FOR APPELLANT: ROSS PARKER SIMONS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE
    BEFORE GRIFFIS, P.J., BARNES, ■ ISHEE AND CARLTON, JJ.
   ISHEE, J.,

FOR THE COURT:

¶ 1. In January 2010, Theodosius Maurice Torrey was indicted on one count of aggravated assault, in violation of-Mississippi Code Annotated section 97—3—7(2)(a) (Supp. 2009). Torrey was tried by a jury in the Jackson County Gircuit Court, and was found guilty. In May 2013, Torrey was sentenced, as a habitual offender, to serve twenty years in the custody of the Mississippi Department of Corrections (“MDOC”). Torrey filed a motion for a judgment notwithstanding the verdict (“JNOV”) or, in the alternative, a new trial, which he later amended. The circuit court denied Torrejas motion, and he appeals. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Torrey was indicted on one count of aggravated assault in the Jackson County Circuit Court. The indictment stemmed from a physical altercation between Torrey and Rodney Norman on April 1, 2009. The altercation left Norman permanently disabled, confined to a wheelchair, and with significant limitations of his bodily functions due to severe trauma to his head and face. Torrey was arrested that same day, and interviewed by Moss Point Police Department Officer Joseph Savage and Detective Joycelyn Craig; the interview was audio-recorded. Torrey was read his Miranda rights at the outset of the interview, and subsequently waived them. Tor-rey alleges that he invoked his right to counsel during this interview. Nonetheless, while Torrey initially denied participating in the altercation with Norman, he eventually told officers that it was he who fought Norman.

¶ 3. On December 12, 2012, the State moved to amend its indictment, and prose-, cute Torrey as a habitual offender. The circuit court granted the amendment, and entered an order to that effect on February 28, 2013. Torrey eventually proceeded to trial on May 20, 2013. Prior to trial, however, Torrey had hired and fired four separate attorneys, with his fifth attorney nowhere to be found and having done no work on Torrey’s case; as such, the circuit court ordered that Torrey proceed to trial, as scheduled, with his fourth attorney, Brian Alexander. Upon conclusion of the trial, Torrey was convicted by a jury of aggravated. assault, in violation of Mississippi Code Annotated section 97-3-7(2)(a).

¶ 4. On May 22, 2013, Torrey was sentenced as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015), to serve twenty years in MDOC custody, without the possibility of parole or early release. Torrey filed a motion for a JNOV or, in the alternative, a new trial; Torrey later amended his motion. ■ Following a hearing on all the issues presented by Torrey in his posttrial motions, the circuit court denied Torrey relief. Aggrieved, Torrey now appeals.

¶ 5. On appeal, Torrey raises the following issues: (1) the circuit court abused its discretion by requiring Torrey to proceed to trial with an unprepared attorney whom Torrey had discharged; (2) the circuit judge abused Ms discretion in not recusing himself from Torrey’s case; (3) the circuit court committed manifest error in denying Torrey’s motion to suppress his. recorded statement to Moss Point police officers; (4) Torrey’s, trial counsel rendered constitutionally, ineffective assistance of counsel; (5) the.circuit court abused its discretion.in denying Torrey’s jury instruction for the lesser-included offense of simple assault; and (6) the process by which Torrey was found to be a habitual-offender violated his right to due process and fair notice. -Finding no error, we affirm;

DISCUSSION

I. The circuit court did not abuse its discretion by ordering Torrey to trial With Brian Alexander as his counsel.

¶6. Because’both of the .issues Torrey raises involving his, trial counsel are interrelated, we will address them together. To begin, Torrey asserts that the circuit court abused its discretion in requiring Torrey go to trial with Brian Alexander as his attorney. In addition, Torrey 'argues that because Alexander,,was unprepared, he provided ineffective assistance of counsel.

A. Alexander as Trial Counsel

¶ 7. At the time’ of Torrey’s scheduled trial date of May 20; 2013, Alexander had previously filed two motions to continue Torrey’s case, in both February' and March 2013; the circuit court granted both of these motions. Four days prior to Tor-rey’s-May'20 trial-date, however, Alexander filed a motion to withdraw as counsel. The motion was not presented to the circuit court until May 20, 20.13,' when the court called Torrey’s cape for trial. Up to this point in the proceedings, the procedural history of Torrey’s case was lengthy—Torrey had previously had three other attorneys, , with Alexander being his fourth,-and Torrey’s. case had been on the circuit court’s docket for nearly four years, encompassing up to eleven separate continuances.

¶ 8. On the day of trial, Alexander was prepared to argue only his motion to withdraw and his third motion to continue. While the State announced that it was ready for trial, Alexander said that he was not, stating that Torrey had not honored his respective obligations to Alexander, that Torrey had" hired an’additional attorney to represent him, and that Torrey did not object to Alexander’s withdrawal. Tor-rey explained to the court that he had fired Alexander, and hired his fifth overall attorney, Curt Crowley. Torrey further stated that he had paid Crowley $6,000 to represent him; however, Crowley had not communicated with Torrey since his hir-ingj had failed to enter an-appearance,,had failed .to file any documents, and had failed to correspond with Alexander regarding Torrey’s case, Torrey further acknowledged that he had fired Alexander, and hired Crowley, after the circuit court’s, final continuance was granted. As such, the circuit court denied Alexander’s motions to withdraw and/or continue the case, ordering the parties, to proceed to trial that same day.

¶ 9. “The decision to grant or deny a continuance is left to the sound discretion of the trial judge.” Harris v. State, 37 So.3d 1237, 1241 (¶ 16) (Miss. Ct. App. 2010) (citing Stack v. State, 860 So.2d 687, 691 (¶ 7) (Miss. 2003)). “This Court will not reverse a trial court’s decision to deny , a motion for continuance unless the decision appears to have resulted in manifest injustice,” Id. “The burden of showing a manifest injustice is not satisfied by con-clusory arguments alone; rather the defendant is required to show concrete facts that demonstrate the particular prejudice-to the defense.” Stack, 860 So.2d at 691-92 (¶ 7).

¶ 10. On appeal, as he did at trial, Tor-rey argues that the- circuit court should not have forced him to proceed to trial with Alexander as his attorney because Alexander arrived at court expecting his withdrawal to be granted, or at least to be granted another continuance. Torrey further asserts that the circuit court erred by failing to consider the option of compelling Crowley to appear in court as Torrey’s counsel, after a time in which Crowley “would have been prepared to proceed.” As such, Torrey argues that he did not receive a fair trial' and, thus, should be granted a new trial. We disagree.'

¶ 11. From the record before us, Torrey has not shown concrete facts evidencing his defense was prejudiced to the point of constituting manifest injustice. In denying Torrey’s motion for a JNOV or new trial, the circuit court specifically found that “Crowley failed to enter an appearance, failed to file any documents, and failed to communicate his existence in any matter with the Court.” Moreover, Crowley’s own testimony during the posttrial hearings revealed that he had .done no work on the case, and intentionally avoided being served to make an. appearance before the court. Whether.to compel Crowley to represent Torrey, however, was within the sound discretion of the circuit court. Reasoning that Torrey would have likely fired Crowley—Torrey’s fifth attorney—due to Crowley’s lack of effort and communication, the circuit court chose to end the constant delays, and proceed to trial on May 20, 2013, as intended.

¶ 12. The circuit court did not abuse its discretion either in enforcing the trial date or in denying Alexander’s motions to withdraw or continue the case. Precedent set forth by the Mississippi Supreme Court illustrates that other defendants have been forced to trial with attorneys having far less time to prepare for trial than Alexander. See Stack, 860 So.2d at 692 (¶ 9) (citing Hughey v. State, 512 So.2d 4, 6 (Miss. 1987) (defendant caused to go.to trial on day of arraignment -and nine days after appointment of counsel); Cole v. State, 405 So.2d 910, 911-12 (Miss. 1981) (counsel had seven days to prepare for murder trial); Speagle v. State, 390 So.2d 990, 992 (Miss. 1980) (new counsel forced to prepare for incest trial in one day); Shaw v. State, 378 So.2d 631, 633-34 (Miss. 1979) (defense counsel afforded eight days to prepare); Garner v. State, 202 Miss. 21, 30 So.2d 413, 414 (1947) (seven-day preparation time for capital murder trial)). Alexander filed, his first appearance in the case on February 8, 2013, and began preparing for trial shortly thereafter. Thus, Alexander had over three months from his initial appearance to prepare for trial set on May 20, 2013.

¶ 13. As this Court will not reverse the denial of a motion to continue absent a showing of manifest injustice by the defendant, we find no reversible error in the present case. See Harris, 37 So.3d at 1241 (¶ 16). As this Court held in the analogous case of Feazell v. State, 750 So.2d 1286, 1288 (¶ 8) (Miss. Ct. App. 2000), “[t]o find error would require us to conclude that the trial judge is at the mercy of the manipulations of a defendant. We do not so find.” Because we decline to address Torrey’s ineffective-assistance-of-counsel claim for the reasons stated .below, we find the circuit court did not abuse its discretion by requiring Torrey proceed to; trial with Alexander as his counsel. This issue is without, merit.

B. Assistance of Trial Counsel

¶ 14. In this • issue,- Torrey claims he received ineffective assistance from his trial counsel because Alexander was unprepared for trial, failed to conduct adequate pretrial investigations and interviews, .conducted “woefully inadequate” voir dire, confused evidentiary rules,’ and failed to make various objections-'throughout the trial.

¶ 15. Rule 22(b) of the Mississippi Rules of Appellate Procedure provides:

Issues which may be raised in post-conviction proceedings may also be raised on direct appeal if such issues are based on facts fully apparent from the record. Where the appellant is represented by counsel who did not represent the appellant at trial, the failure to raise such issues on direct appeal shall constitute a waiver barring consideration of the issues in post-conviction proceedings.

And the supreme court has held:

It is unusual for [an appellate c]ourt to consider a claim of ineffective assistance of counsel when the claim is made on direct appeal. This is because we are limited to the trial court record in our review of the claim[,] and there is usually insufficient evidence within the record to evaluate the claim .... [W]here the record cannot support an ineffective assistance of counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the' defendant’s right to argue the same issue through a petition for post-conviction relief. [An appellate cjourt will rule on the merits on the rare occasions where (1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.

Wilcher v. State, 863 So.2d 776, 825 (¶ 171) (Miss. 2003) (internal citations and quotations omitted).

¶ 16. Upon review, the record does not affirmatively indicate that Torrey received ineffective assistance of constitutional dimensions. Nor have the parties stipulated that the record is adequate to allow us to make findings without considering a trial judge’s findings of fact. As a result, we decline to address this issue. Thus, we dismiss Torrey’s claims under this heading without prejudice to his ability .to raise them in postconviction proceedings,. if he chooses to do so.

II. The circuit judge did not abuse his discretion in refusing to re-cuse himself from Torrey’s case.

¶ 17. Torrey argues that the circuit judge should have recused himself from Torrey’s case because he was involved in past cases related to Torrey when serving as the district attorney for Jackson, George, and Greene Counties. On appeal, “the standard of review to which appellate courts are bound on the issue of recusal is manifest error.” West v. State, 131 So.3d 583, 586 (¶ 10) (Miss. Ct. App. 2013). “In determining whether a judge should have recused himself, this Court uses an objective test: ‘A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality.’” Shumpert v. State, 983 So.2d 1074, 1078 (¶ 14) (Miss. Ct. App. 2008). “The challenger has to overcome the presumption ‘that a judge, sworn to administer impartial justice, is qualified and unbiased.’ This presumption may only be overcome by evidence which produces a reasonable doubt about the validity of the presumption.” Id.

¶ 18. Furthermore, Uniform Rule of Circuit and County Court 1.15 states in pertinent part:

Any party may move for the recusal of a judge of the circuit or county court if it appears that the judge’s impartiality might be questioned by a reasonable person knowing all the circumstances, or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law. A motion seeking recusal shall be filed with an affidavit of the 'party or the party’s attorney setting forth the factual basis underlying the asserted grounds for recusal and declaring that the motion is filed in good faith and that the affiant truly believes the facts underlying the grounds stated to be true. Such motion shall, in the first instance, be filed with the judge who is the subject of the motion within SO days following notification to the parties of the name of the judge assigned to the case; or, if it is based upon facts which could not reasonably have been known to the filing party within such time, it shall be filed within 30 days after the filing party could reasonably discover the facts underlying the grounds asserted.

URCCC 1.15 (emphasis added).

¶ 19. In light of these principles, we find that Torrey is procedurally barred from asserting this claim on appeal as he did not file his motion to recuse in accordance with Rule 1.15. The record reflects that Torrey failed to attach an affidavit from himself or his attorney to his motion, as required by Rule 1.15. In addition, Torrey’s motion for recusal was not timely. While it is unclear when Torrey or his attorney became aware that Judge Dale Harkey would be presiding over the case, Judge Harkey signed an order in the case as early as August 6, 2010. Torrey did not file his motion to recuse Judge Harkey until January 12, 2012. Because Torrey’s motion to recuse failed to comply with Rule 1.15, he is procedurally barred from asserting this claim. As such, this issue is without merit.

III. The circuit court did not err in denying Torrey’s motion to suppress his recorded statement to Moss Point Police Department investigators.

¶ 20. Torrey asserts that the circuit court erred in'denying his motion to suppress his recorded statement because Torrey requested counsel, but continued to be questioned by Moss Point Police Department investigators. “This Court will reverse a trial court’s denial of a motion to suppress only if the ruling is manifest error or contrary to the overwhelming weight of evidence.” Barnes v. State, 158 So.3d 1127, 1134 (¶ 22) (Miss. 2015).

¶ 21. “If the défendant invokes his right to counsel, the ifiterrogation must cease until an attorney is present.” Barnes v. State, 30 So.3d 313, 316 (¶ 8) (Miss. 2010). “Once a defendant asks for counsel, he cannot be interrogated further until counsel has been made available, ‘unless the accused himself initiates further communication, exchanges, or conversations with the police.’ ” Id. at 316-17 (¶ 8) (citing Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)). “[T]he applicability of the rigid prophylactic rule of Edwards requires courts to first determine whether the accused actually invoked his right to counsel.” Id. at 317 (¶ 9) (emphasis in original) (internal quotation marks omitted) (quoting Davis v. United States, 512 U.S. 452, 458, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994)). “Determining whether a defendant actually invoked his right to counsel is an objective inquiry.” Id. “During a suppression hearing, the trial judge sits as the fact[-]finder.” Walker v. State, 913 So.2d 198, 224 (¶ 87) (Miss. 2005).

¶22. In Barnes, o,ur supreme court ruled in accordance with precedent set forth by the United States Supreme Court in Davis, holding:

A defendant must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect .... If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.

Barnes, 30 So.3d at 317 (¶ 9) (citing Davis, 512 U.S. at 459, 461-62, 114 S.Ct. 2350). While our supreme court- has since provided guidance on issues related to ambiguous invocations of counsel, Torre/s case does not fall under the purview of this line of cases. Here, we are addressed with an audio-recorded statement, at which the crucial point of the alleged invocation and/or waiver of counsel is arguably inaudible. In contrast, our supreme court’s most recent precedent on point outlines a framework for ambiguous, though audible, statements made by defendants. See Downey v. State, 144 So.3d 146, 151 (¶ 8) (Miss. 2014) (applying three-part test to determine whether trial judge correctly decided whether to admit or suppress defendant’s statements to law-enforcement officers); compare with Franklin v. State, 170 So.3d 481, 490-91 (¶¶ 30-37) (Miss. 2015) (plurality opinion holding that Davis is controlling law, three-part test did not apply, and Mississippi Constitution does not afford greater protection to criminal suspects than U.S. Constitution); see also Collins v. State, 172 So.3d 724, 736-37 (¶¶ 9-10) (Miss. 2015) (discussing inaudible portions of statement within context of “initiating” conversation with police officials).

¶23. From the transcript of the interview offered into evidence, the alleged exchange that took place between Officer Savage and Torrey is as follows:

J.D. Savage: Okay. So, tell us how—tell us your side. We got his side. I want your side.
. Torrey: Okay. I want—I want to call a lawyer and all that, dude, you know what I’m saying? But at the same time, though, ah
. J.D. Savage: Was it something that’s
Torrey: I want to ask you a que—I want—I just, want—I just want to ask a question, too. Um, am I charged with -anything? I mean, am I gonna be charged?
J.D. Savage: We’re trying to get—fight now you’re being detained;

¶24. At trial, Officer Savage testified that during the course of the interview, Torrey never requested an attorney. Tor-rey, on the-other hand, testified that he did, in fact, invoke his right to counsel, as the interview transcript allegedly indicates. In rebuttal, however, the State contends that the transcript is unreliable during this portion of the interview. The State asserts such on the basis that what exactly Torrey said is a matter of interpretation, as it is not entirely clear ■ when .■ Torrey mentions the word “attorney.”-Because of this ■ inaudible discrepancy,- the audio recording was played at least seven times for the circuit court. After hearing the recording, the circuit court specifically stated that the crucial point of the recording contained “all sorts of static,” and that the transcript was considered “helpful, but obviously not conclusive.”

¶ 25. On appeal, Torrey now asserts that the circuit court erred in:denying his motion to suppress because the court stated on the record:

I’m going to deny the motion to suppress the statement. I mean, I’ve heard four pages of [the audio recording] and I don’t know what it says, but I’m going to deny it.
I haven’t read the entire thing, but I am told that there are other occasions during the course of the statement where the defendant does not want an attorney.

Torrey argues the court erred by failing to listen to the entire statement, and the court did “[not] offer any -justification for believing what the [Sítate said was in the later part of the transcript it had admittedly not read At trial, however, it was stipulated by both the State and Alexander that the court needed only to review the “disputed part of the [recording] concerning .., Torrey’s invocation of his right to counsel.” Furthermore, when asked by the court whether the transcript was “accurate later,” Alexander stated, “In my view, the transcript’s accurate later. That’s our position.” By stipulating to such, Alexander conceded that on-at least three other occasions later in the interview, Torrey stated, “I don’t need no lawyer,” or, “I. don’t need no lawyer for nothing.” Thus, Torrey’s argument in this regard is-without merit.

¶ 26. Next, Torrey seems to assert that “Mr. Torrey’s and [Officer Savage]’s testimonies] cancel each other out,” and thus, the circuit court was not entitled to credit Officer Savage’s testimony over Torrey’s. This is simply not the law. As the finder of fact during a suppression hearing, it is within the sound discretion of the' circuit judge to determine witness credibility—and in the present case—whether Torrey invoked his right to counsel. See Walker, 913 So.2d at 224 (¶ 87). As such, this argument is likewise without merit.

¶ 27. Lastly, we address Torrey’s contention that the circuit court erred in its ruling by “presuming” that Torrey had waived his right to counsel. As the Supreme Court held in Miranda, “[presuming a waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything else is not a waiver.” Miranda, 384 U.S. at 475, 86 S.Ct. 1602 (citing Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962)). Torrey asserts that the State “presented] no proof beyond a reasonable doubt that ... Torrey waived the right, • [and] the trial' court—from the lack of evidence—presumed a waiver that did not exist.” Again, this argument is also without merit.

¶ 28. The interview transcript shows that at the outset of the interview, Torrey was properly read- his Miranda rights, and stated that he understood his rights. Tor-rey was next asked by Detective Craig if he was “willing to make a statement or answer questions,” to which Torrey responded, “Mm-hm.” Torrey further 'acknowledged that he understood his rights, that he had not been made any promises or threatened, nor had he been coerced by Detective Craig or Officer Savage when he initialed and signed an affidavit to that 'effect. Thus, while the State “bears the burden of proving beyond a reasonable doubt that a statement was given after a valid waiver,” the record clearly reflects that the State has satisfied its burden here. See Collins, 172 So.3d at 736 (¶ 8). We find no merit to this argument.

¶ 29. Thus, in its order denying Torrey’s motion for a JNOV or a new trial, the circuit court held: .

After a full evidentiary hearing, the Court made factual findings adverse to the Defendant as to whether he requested the presence of an attorney. Those findings included the facts, as found by the Court beyond a reasonable doubt, that the. officers testified that no request for an attorney was made, and that the transcript of the interview did not accurately record the relevant statements of the Defendant.

In light of Barnes and Davis, the circuit court properly found that Torrey’s statement was not an “unambiguous or unequivocal request for counsel,” and Detective Craig and Officer Savage were not obligated to stop questioning Torrey. See Barnes, 30 So.3d at 317 (¶ 9) (citing Davis, 512 U.S. at 459, 461-62, 114 S.Ct. 2350). Furthermore, we find that at multiple points in the transcript before the alleged invocation of counsel, the transcript was ripe with inaccuracies, further supporting the circuit court’s findings regarding the reliability of the transcript. Torrey was properly read his Miranda. rights, voluntarily waived those rights, and. repeatedly stated throughout the interview that he “[did not] need no lawyer.” Thus, it is reasonable to assume that Torrey did not invoke his right to counsel as he initially waived that right before the alleged invocation, in addition to doing so on multiple occasions afterward, As such, we do not find any manifest error on the part of the circuit court, and its denial of Torrey’s motion to suppress was not against the overwhelming weight of the evidence. Consequently, this issue is without merit.

IY. The circuit court did not err by refusing Torrey’s requested simple-assault jury instruction.

¶30. Torrey argues that the circuit court committed reversible error in its refusal of Torrey’s simple-assault jury instruction, D-ll. On appeal, this Court “conduces] a de novo review of a circuit court’s decision that a defendant is not entitled to a lesser-included-offense instruction, as this is a question of law.” Collins v. State, 81 So.3d 1174, 1177 (¶ 9) (Miss. Ct. App. 2011). “[A] lesser-included instruction should be given where the evidence is such that a reasonable jury ‘could find the defendant not guilty of the principal offense charged in the indictment, yet guilty of the - lesser-included offense.’ ” Bright v. State, 986 So.2d 1042, 1048 (¶ 21) (Miss. Ct. App. 2008) (quoting Monroe v. State, 515 So.2d 860, 863 (Miss. 1987) (superceded by rule on other grounds)). This Court must “tak[e] the evidence in the light most favorable to the accused, and consider[ ] all reasonable inferences which may be drawn in favor of the accused from the evidence .... ” Harper v. State, 478 So.2d 1017, 1021 (Miss. 1985).

¶ 31. Torrey was charged with aggravated assault. Mississippi Code Annotated section 97-3-7(1) (Supp. 2009) provides:

A person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with, a deadly weapon or other means likely to produce death or serious bodily harm

Mississippi Code Annotated section 97-3-7(2)(a) (Supp. 2009) provides, in pertinent part:

A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life

¶32. “Prior Mississippi cases have explained on several occasions that aggravated assault under section 97-3-7(2)(a) and simple assault under 97-3-7(1)(a) are distinguished mainly by the extent of the victim’s injury, i.e., whether the victim suffered ‘bodily injury or ‘serious bodily injury.’ ” Bright, 986 So.2d at 1048 (¶ 24). “Whether ‘bodily injury5 or ‘serious bodily injury’ resulted is a question for the jury.” Id. (citing Odom v. State, 767 So.2d 242, 246 (¶ 13) (Miss. Ct. App. 2000)). However, “a lesser-ineluded offense instruction should never be granted on the basis of pure speculation.” Collins, 81 So.3d at 1177 (¶ 11).

¶ 33. The State argues, and we agree, that “no. reasonable jury could conclude that [Normanj’s injuries were less than, serious.” Bright, 986 So.2d at 1050 (¶ 30). The aftermath of the altercation between Torrey and Norman left Norman confined to a wheelchair and unable to walk, eat on his own, or communicate. First responders reported that upon arrival, Norman was bleeding from his mouth, nose, and ears. Furthermore, doctors at the hospital where Norman was taken told Officer Savage that Norman’s survival was unlikely. Finally, as the State asserts, “[t]he clincher here is the uncontradicted evidence regarding the nature and extent of [the victim’s] injuries.” Id. at 1049 (¶ 29) (quoting Harbin v. State, 478 So.2d 796, 799 (Miss. 1985)).

¶ 34. To support his denied jury instruction, Torrey relies upon two responses made by Dr. Lee Kesterson, the State’s expert witness. Alexander asked Dr. Kes-terson if Norman’s injuries could have resulted from another source, such as contact with an automobile while Norman lay in the street, or a fall from a two-and-one^ half-foot-tall porch that occurred during the altercation. Dr. Kesterson stated that “it’s possible” a car striking Norman could cause the same damage, and that “a ground level fall like that can be a source of significant trauma.” We hold Torrey’s reliance is unfounded. This is because Tor-rey never presented any evidence showing Norman was struck by a vehicle, or that any vehicle was involved. Moreover, Tor-rey did not introduce any evidence supporting the notion that Norman was severely injured after the pair fell from the porch while fighting. On appeal, Torrey, in fact, concedes that “the evidence .■ might have been meager or highly unlikely .... ”

¶ 35. Reviewing the relevant portions of the record anew, and viewing the evidence in the light most favorable to Torrey; we find that no reasonable jury could have found Torrey guilty of the lesser-ineluded offense of simple assault. As such, the circuit court did not’ err in refusing Tor-rey’s simple-assault jury instruction, D-ll. This issue is without merit.

Y. The process by which Torrey was found to be a habitual offender was procedurally proper under Gowdy v. State.

¶ 36. Torrey argues on appeal that the amended indictment reflecting his habitual-offender status was “convoluted,” and procedurally improper under Gowdy v. State, 56 So.3d 540 (Miss. 2010). Torrey asserts that “[d]ue to the amending order’s, distance in time from ... Torrey’s sentencing hearing and the lack of notice to ... Torrey of the February 28, 2013[,] amendment, his sentence as a habitual offender does not pass the due process and fair notice required by Gowdy.” We find no merit to this assignment of error.

¶37. In -Gowdy, the supreme court addressed the procedures for habitual-offender proceedings. The guiding principle derived from Gowdy is this: indictments cannot be amended after conviction. Id. at 544-46 (¶¶ 15-24). On December 12, 2012, the State submitted its motion to amend to charge Torrey as 'a habitual offender. The motion specifically listed two previous felo-' ny convictions Torrey had -received in Jackson County, Mississippi, in the years of 2001 and 2005, respectively. On January 11, 2013, the circuit court heard the motion upon the request of the State. 'Torrey’s counsel at the time, Wendy Martin, stated that she had “no response,” and requested' “that this [motion] be done closer to trial, the day of trial.” Oil February -28, 2013, the circuit court granted the-State’s motion, entering an order amending the indictment to charge Torrey as a habitual, offender., Torrey’s trial did not take place until May 20, 2013—meaning Torrey had notice from December 2012 through May 2013 that the State intended to charge hini as a halaitual. offender. As such, Toney’s case does not violate the procedural guidelines articulated in, Gowdy, as Torrey had approximately five months’ notice before he was .to be- tried, .and ultimately sentenced. .

¶ 38. Finally, Torrey did not raise this issue in his initial or amended motion for a JNOV or new trial. Likewise, a review of the record reveals Torrey did not object at any point regarding the State’s intent to amend the indictment for habitual-offender status. As this Court has made clear before, - “[wjhen an accused fails to object to the habitual offender issue during the sentencing phase, he is procedurally barred to do so the first time on appeal.” Heidelberg v. State, 45 So.3d 730, 732 (¶ 6) (Miss. Ct. App. 2010). Torrey has no foundation to argue that his -procedural rights of due process and fair notice were violated. We find no merit regarding this issue.

CONCLUSION

.¶ 39. Upon review of the record, we find no merit to any of .the issues raised on appeal. Therefore, we affirm the -findings of,the circuit court.

¶ 40. THE JUDGMENT- OF THE JACKSON COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT .AND SENTENCE AS A HABITUAL OFFENDER OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR EARLY RELEASE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

license: Public Domain

text:
    David Samuel-Ramos FELICIANO a/k/a David Feliciano, a/k/a David Samuel Feliciano, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CA-01609-COA
    Court of Appeals of Mississippi.
    02/28/2017
    Rehearing Denied August 1, 2017
    Certiorari Denied November 9, 2017

      ATTORNEYS FOR APPELLANT: OLIVER E. DIAZ JR., DAVID NEIL MCCARTY
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BARBARA BYRD, JASON A. DAVIS
    BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.,
   ISHEE, J.,

FOR THE COURT:

¶ 1. David Samuel-Ramos Feliciano was indicted as a habitual offender and pleaded guilty to one count of felony fleeing the scene of an accident. Because he Was a habitual offender, he could have been sentenced to the maximum penalty of twenty years; however, the Circuit Court of the Second Judicial District of Harrison County sentenced Feliciano to seventeen and one-half years to serve in the custody of the Mississippi Department of Corrections (“MDOC”). The circuit court reduced the sentence based on a joint recommendation made by the State and defense, counsel. Feliciano filed a motion to vacate, set aside, and correct his sentence under the Uniform Post-Conviction Collateral Relief Act (“UPCCRA”) and was denied relief. Feliciano then filed a second .motion under the UPCCRA, which the circuit court denied because the motion was barred as a successive writ. Feliciano.now appeals, and we find that the circuit court did not err in denying Feliciano’s successive writ. Thus, we affirm.

FACTS

¶ 2. On September 26, 2012, at approximately 11:15 p.m., Feliciano was driving his friend’s truck when he pulled out in front of traffic and collided with a motorcyclist, who died shortly thereafter, Feliciano left the scene and hid at a friend’s house, before his friends convinced him to seek medical treatment. His friend called the police, and Feliciano turned himself in. He was later indicted for felony leaving the scene of the accident, and was indicted as a habitual offender due to several past felony convictions. . , •

¶3. On November 8, 2013, Feiiciano pleaded guilty, and the circuit court adequately performed the required plea colloquy before accepting Feliciano’s plea. Feli-ciano told the circuit court that he fled the scene because he was in shock, but later admitted that he was out on bond for another charge at the time of the collision. The circuit court specifically asked Felici-ano if he ever had “any blow to [his] head, loss of consciousness, loss of memory, or any other serious injury that in [his] opinion would cause [him] not to fully understand what [he was] doing.” Feliciano answered, “No, ma’am.”

¶4. As part of Felicano’s plea agreement, the State recommended that he serve seventeen years and six months, day-for-day, in the custody of the MDOC. The circuit court accepted the recommendation.

¶ 5. On August 8, 2014, Feliciano filed a motion to vacate, set agide, and correct his sentence, “pursuant to Mississippi Code Sections 99-39-1, et seq., known as the [UPCCRA].” The circuit court denied the motion, finding it did hot comply with the statutory requirements of the UPCCRA, and alternatively, that it was without merit; Feliciano did not appeal the ruling.

¶ 6. Approximately one year later, Feli-ciano filed his second postconviction-relief (“PCR”) motion claiming that new medical evidence was discovered, that his plea was not voluntarily made, and that he received ineffective assistance of counsel. Again, the circuit court denied the motion and held that it was procedurally barred under the UPCCRA as a successive writ, and alternatively, that it, too, was without merit. Feliciano appeals the denial of his second motion.

DISCUSSION

¶ 7. Mississippi Code Annotated section 99-39-23(6) (Rev. 2015) applies to successive writs. Section 99-39-23(6) provides that a prisoner who raises an issue that the circuit court addresses in a final judgment with specific findings of facts and conclusions of law cannot raise the issue again. “Any motion filed after an entry of the final judgment and asserting the same issue is procedurally barred as a secondary or successive writ.” Parham v. State, 174 So.3d 880, 883 (¶ 11) (Miss. Ct. App. 2015).

¶ 8. In Feliciano’s first PCR motion, he argued that new medical evidence was discovered that negated the intent element' for his crime. He submitted the report of a doctor who asserted that Feliciano experienced the medical occurrence of “fight or flee” on the night of the accident. -No evidence was submitted to establish the doctor as an expert, and his findings were based on a. manual for at-home medical references. Furthermore, the doctor’s report did not discuss anything related to Feliciano’s competency or mental capacity at the time he entered his guilty plea. The circuit court found that not only was Feli-ciano’s motion not in compliance with the UPCCRA, but it also failed on the merits because there was no new medical evidence that would allow relief under the UPCCRA.

¶ 9. Feliciano’s second PCR motion again alleged that new medical evidence was discovered, this time specifically referencing an incident that occurred when he was fourteen years old and was struck by a van. He argued that the incident affected his memory and cognitive abilities, and he supported his argument by showing that he had to enroll - in special-education classes after the van struck him. The circuit court again found that this was not newly discovered evidence, since Feliciano had known of this injury for approximately twenty years, and told the circuit court during his plea colloquy that he did not have any injuries that would impair his ability to competently enter his plea.

¶ 10. Lastly, Feliciano argued that he received ineffective assistance of counsel because his attorney did not request that a mental evaluation be conducted. Errors affecting fundamental rights are excepted from the procedural bars of the UPCCRA. However, “the mere assertion of a constitutional right violation” does not engage the exception. To prevail on a claim of ineffective assistance of counsel, a defendant must show: (1) his counsel’s performance was deficient; and (2) the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We decline to discuss the merits of this argument in depth, because we agree with the circuit court’s finding that there was no “indication that Feliciano behaved in a manner that should have caused the attorney to recognize any problem.” There were no grounds known to defense counsel that would require him to move for a mental evaluation; therefore, his failure to move for such an evaluation cannot be considered deficient. The ineffective-assistancé-of-counsel claim is without merit, and thus does not propel Feliciano over the procedural bar to his successive writ.

¶ 11. The circuit court conducted a thorough review and detailed analysis of Felici-ano’s first PCR motion, and did so again with his second. Though his first PCR motion was not in the particularized format required under the UPCCRA, Felici-ano specifically requested relief under the UPCCRA, and the circuit court adjudicated the motion on the merits and in accordance with the UPCCRA. Therefore, we find no error, and we affirm.

¶ 12. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT, DENYING THE MOTION FOR POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: WILSON, J.,

text:
    Walter WILLIAMS, Appellant v. CITY OF BELZONI and Alderman Gary Farmer, Individually, Appellees
    NO. 2015-CA-01497-COA
    Court of Appeals of Mississippi.
    08/07/2017

      KENNETH TREY O’CAIN, ATTORNEY FOR APPELLANT
    DANIEL JUDSON GRIFFITH, JAMIE FERGUSON JACKS, MICHAEL STEPHEN CARR, ATTORNEY FOR APPELLEES
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1'. Walter Williams was the public works director for the City of Belzoni until the board of aldermen voted not to renew his employment. Williams did not exercise his statutory, right, to appeal the board’s decision to circuit court. Instead, more than a year later, he-filed an independent lawsuit against the city and one alderman (Gary Farmer) in circuit court, asserting claims for defamation and “wrongful termination.” Williams purported to proceed under the Mississippi. Tort Claims' Act (MTCA), Mississippi Code Annotated sections 11-46-1 to -23 (Rev. 2012 & Supp. 2016). The circuit court dismissed the entire action without prejudice, reasoning that it was without jurisdiction because Williams failed to file a timely appeal from the board’s decision, not to renew his employment.

¶ 2. The circuit court properly dismissed Williams’s wrongful termination claim because he failed to file a timely appeal, which is the exclusive remedy for a party aggrieved by such a decision of a municipal authority. In addition, Williams’s defamation claim against the city is barred by sovereign immunity, and his defamation claim against Farmer is barred by the statute of limitations. Accordingly, we-affirm the circuit court’s dismissal of the complaint; however, as we .explain infra, the dismissal should be with prejudice. •Therefore, we modify and render the judgment as a dismissal with prejudice. •,

FACTS AND PROCEDURAL HISTORY

¶ 3. On August 6, 2013, the city’s board of aldermen divided 2-2, with one member indicated “not present,” on a motion to renew 'Williams’s employment as public works director for the' city. The mayor voted against the motion, thereby breaking the tie and effectively ' terminating Williams’s employmént;

¶ 4. On August 29, 2013, Williams wrote a letter to the mayor and board requesting a hearing on his termination. The city did not respond and no hearing was held.

¶ 5, On July 14, 2014,' Williams served the city with a notice of claim pursuant to the MTCA. Miss. Code Ann. § 11-46-11 (Rev. 2012). Williams alleged that he was terminated because Farmer, who had voted against the motion to renew his employment, made a false and defamatory accusation that he had stolen one of the city’s lawnmowers; Williams also alleged that his termination was procedurally improper and that Farmer was not qualified to be an alderman because he lived outside of the Belzoni city limits. On October 29, 2014, Williams filed suit in Humphreys County Circuit Court against Farmer and the city. Williams asserted claims for defamation, slander, and slander per se (Count I) and “wrongful termination” (Count II).

¶ 6. The city and Farmer answered the complaint and subsequently filed a joint motion to dismiss or for summary judgment. They argued that Williams’s claims .against the city were barred by sovereign immunity. They also argued that Williams’s claims were barred because he failed to appeal the city’s decision not to renew his employment within ten days, as required by' Mississippi Code Annotated section 11-51-75 (Rev. 2012). Finally, they argued that any claims against Farmer in his individual capacity were barred by the statute of limitations, as the tolling provisions of the MTCA would not apply to such claims.

¶ 7. The circuit court granted the defendants’ motion, finding that the court was “without jurisdiction to hear this matter due to [Williams’s] failure to file a [timely] notice of appeal” pursuant to section 11-51-75. In its final judgment, the circuit court stated that it was granting summary judgment for the defendants and that the action' was dismissed “without prejudice” because Williams’s claims were “barred procedürally” and thus could not “properly be reviewed by [the court].”

¶ 8. On appeal, Williams argues that (1) the circuit court erred in dismissing his defamation claim against Farmer; (2) his case should not have been dismissed due to his failure to. appeal the board’s, decision because “there was no final action or decision from which [he] could have appealed”; and (3) “the board induced [him] into sleeping on his rights.” We consider these arguments below in the course of addressing Williams’s claims for “wrongful termination” and defamation/slander.

ANALYSIS

I. The circuit court properly dismissed Williams’s “wrongful termination” claim.

¶ 9. At the outset, it should be understood that Williams’s “wrongful termination” claim is not a “McArn claim.” See McArn v. Allied Bruce-Terminix Co., 626 So.2d 603, 607 (Miss. 1993) (recognizing “a narrow public policy exception to the employment at will doctrine”: an employee who is terminated because he “refuses to participate in an illegal act” or “report[s] illegal acts of his employer” may bring an action in tort for wrongful termination). Rather, Williams’s complaint and subsequent pleadings make clear that his claim is simply that his termination was “wrongful” because, allegedly, ’ Farmer was not a resident or qualified alderman, the city failed to follow unspecified rules and regulations, and he should not have been terminated based on an “unsubstantiated allegation.”

¶ 10. Mississippi Code Annotated section 11—51—75 permits a party aggrieved by such a decision of a municipal authority to appeal to circuit court by filing a bill of exceptions within ten days. “The statute’s ten (10) day time limit in which to appeal the decision of a [b]oard is both mandatory and jurisdictional. Where an appeal is not perfected within the statutory time constraints no jurisdiction is' conferred on the appellate court; and the untimely action should be dismissed.” Newell v. Jones Cty., 731 So.2d 580, 582 (¶ 10) (Miss. 1999) (citation omitted); accord, e.g,, Claiborne Cty. v. Parker, 26 So.3d 1078, 1080 (¶4) (Miss. Ct. App. 2009) (holding that the circuit court lacked jurisdiction to review the board’s decision to terminate an employee where the employee failed to appeal within-ten days). An appeal to circuit court pursuant to section 11-51-75 is the “exclusive remedy” for a party aggrieved by the decision of a municipal authority. E.g., Malone v. Leake Cty. Bd. of Sup’rs, 841 So.2d 141, 145 (¶9) (Miss. 2003). Williams’s complaint was filed more than fourteen months after the board’s decision. Therefore, the circuit court properly dismissed his wrongful termination claim for failure to comply with section 11-51-75’s mandatory time limit.

¶ 11. Williams argues that, despite his failure to file a timely appeal, the circuit' court had jurisdiction to consider his claim based on his allegations that the board’s decision was procedurally improper and that Farmer was not a qualified alderman. Williams presented no evidence regarding Farmer’s residency, and he fails to specify what procedures were not' followed. In any event, the Mississippi Supreme Court has squarely rejected the argument that a mere allegation of “unlawful” action by a board operates to suspend the requirements of section 11-51-75. Newell, 731 So.2d at 582 (¶¶ 10-11). In Newell, three months after a board of supervisors entered into a garbage collection contract, residents filed a complaint for a declaratory judgment challenging the contract. Id. at (¶ 10). The residents argued that section 11-51-75 did not apply because the board’s failure to comply with statutory prerequisites rendered its action “unlawful.” Id. at 580-82 (¶¶4, 11). The' Supreme Court rejected this argument,' holding that section 11-51-75 applied because the board acted, and its action was final, thereby triggering the statute’s mandatory ten-day time limit. Id. at 582 (IT 11). The same is true in the present case. If Williams believed that the board’s action was unlawful, he was required to appeal its decision within ten days. Because he failed to do so, his claim for wrongful termination was properly dismissed.

¶ 12. As noted above, Williams also argues that section 11-51-75’s ten-day time limit does not apply because “there was no final action or decision from which [he] could have appealed.” The argument under this heading essentially repackages Williams’s unsupported claim that Farmer' is not a bona fide alderman. He contends that a decision that depends on the vote of an unqualified alderman is not “final.” For the same reasons discussed above, this argument is without merit. The board’s action was final on its face. If Williams desired to challenge the action taken, he was required to comply with section 11-51-75!

¶ 13. Finally, Williams argues that his failure tó file a timely appeal should not bar his claim because “the board induced [him] into sleeping on his rights.” The only evidence that he cites in support of this claim is his August 29, 2013 letter to the board requesting a hearing on his termination. In a proposed amended complaint, Williams alleged that Farmer told him that at the August 19, 2013 board meeting he would be given an opportunity, to prove that .he did not steal, the city’s lawnmower. Williams alleges that the board did not give him that opportunity at its August 19 meeting, which is why he then wrote a letter requesting a hearing. Williams’s argument is without merit. To begin with, his allegation fails to meet the requirements of Mississippi Rule of Civil Procedure 56(e). But even if we accept the allegation as true, and even if the city could be estopped by Farmer’s alleged promise, this explains only a few days of delay on Williams’s part. As noted above, Williams filed his complaint fourteen months top late, far beyond the statute’s ten-day time limit. The alleged promise of a hearing cannot possibly excuse Williams’s failure to comply with the statute for fourteen months.

¶ 14. In summary, because Williams failed to comply with section 11-51-75’s mandatory ten-day time limit, the circuit court properly dismissed his wrongful termination claim. See Newell, 731 So.2d at 582 (¶ 10). Furthermore, because an appeal pursuant to section 11-51-75 was the exclusive remedy available to Williams to challenge the board’s decision, the dismissal of his wrongful termination claim should have been with prejudice. Hood v. Perry Cty., 821 So.2d 900, 902 (¶¶ 5-10) (Miss. Ct. App. 2002); accord Pratt v. City of Greenville, 918 So.2d 81, 83 (¶¶5-12) (Miss. Ct. App. 2006); Lucas v. Williamson, 852 So.2d 67, 68-69 (¶5) (Miss. Ct. App. 2003).

II. Williams’s slander and defamation claims fail as a matter of law.

¶15. Pursuant to the MTCA, “an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted ... slander [or] defamation .... ” Miss. Code Ann. § 11-46-5(2) (Rev. 2012). Thus, the city is immune from liability on any claim that Farmer slandered or defamed Williams. Farmer argues that any slander or defamation claim against' him - in' his individual capacity also fails because, among other reasons, it is barred by the statute of limitations. For the reasons that follow, we agree. ■

¶ 16. “Defamation is divided into two torts, including libel for written defa-mations and slander for oral ones.” Funderburk v. Johnson, 935 So.2d 1084, 1101 (¶ 45) (Miss. Ct. App. 2006). All such claims must be filed within one year after the cause of action accrued. Miss. Code Ann. § 15-1-35 (Rev. 2012). Williams’s complaint alleges that Farmer defamed him at the August 6, 2013,board meeting by accusing him of stealing a lawnmower. Williams’s complaint was not filed until October 29, 2014, beyond the applicable, one-year statute of limitations as it relates to any alleged slander on the date of the board meeting.

. ¶ 17. In his reply brief on appeal, Williams argues that his slander, claim is not time-barred because his proposed amended complaint (see supra n,2) alleged that “Farmer ... continued to defame and otherwise slander [him] throughout the year.” By “throughout the year,” Williams apparently means that Farmer slandered him on at least one occasion within the applicable limitations period. It. is true that “[e]ach repetition of slanderous words is a distinct cause of action,” so the statute of limitations may not bar a claim based on slanderous statements uttered within the limitations period,.even if it would bar. a claim based on prior, similar statements. Ladner v. Arrington, 374 So.2d 831, 832-33 (Miss 1979). However, the vague allegation in Williams’s proposed amended complaint was never placed before the circuit court in an affidavit or other form sufficient to show that there is a genuine issue of fact for trial. M.R.C.P. 56(e); see supra n.3. Moreover, the allegation of continued slander “throughout the year” is insufficient even to state an actionable claim for slander within the applicable limitations period. See Chalk v. Bertholf, 980 So.2d 290, 296-99 (¶¶ 11-19) (Miss. Ct. App. 2007) (discussing the elements of slander and the particularity with which the claim must be pled). In any event, because Williams never placed this vague allegation before the circuit court in a form in which it could be considered under Rule 56, Farmer was entitled to summary judgment on Williams’s slander claim on the ground that the claim was barred by the statute of limitations.

CONCLUSION

¶ 18. For the foregoing reasons, the circuit court properly dismissed the complaint. However, the dismissal should have been with prejudice because Williams faded to avail himself of the “exclusive remedy” available to him with respect to his wrongful termination claim; because his defamation claim against the city is barred by sovereign immunity; and because his defamation claim against Farmer is barred by the statute of limitations. Accordingly, we affirm the dismissal of the complaint, but we modify and render the judgment of the circuit court as a dismissal with prejudice.

¶ 19. THE JUDGMENT OF THE HUMPHREYS COUNTY CIRCUIT COURT IS AFFIRMED IN PART, AND MODIFIED AND RENDERED IN PART AS A DISMISSAL WITH PREJUDICE, ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The ten-day time limit in section 11-51-75 is also unaffected by the fact that Williams sued Farmer in his individual capacity. See Foster v. Edwards, 61 So.3d 960, 964 (¶ 10) (Miss. Ct. App. 2011) ("Because [plaintiffs’] action was, in reality, an appeal of a municipal authority’s decision, section 11-51-75 applied" even though they purported to sue the mayor and board individually.).

      . The circuit court did not grant Williams’s motion to amend his complaint, which was filed after the defendants moved for summary judgment. Cursory assertions that the chancellor abused her discretion by not granting leave to amend are interspersed within the argument section of Williams’s brief on appeal. However, Williams does not identify the issue in his statement of issues or present the issue separately within the body of his brief. Accordingly, the issue is waived. M.R.A.P. 28(a)(3), (7); see Bolden v. State, 166 So.3d 568, 571 (¶ 7) (Miss. Ct. App. 2015); Wilson v. Wilson, 79 So.3d 551, 560 (¶39) (Miss. Ct. App. 2012); Reed v. State, 987 So.2d 1054, 1056-57 (¶¶ 7-8) (Miss. Ct. App. 2008); Starks v. State, 798 So.2d 562, 566 (¶ 14) (Miss. Ct. App. 2001).

      . A party opposing summary -judgment “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or -as otherwise provided in this rule, must set forth specific -facts showing that there is a genuine issue for trial. If . he does not so respond, summary judgment, if appropriate, shall be entered against him.” M.R.C.P. 56(e).

      . As an alderman, Farmer is an "employee” of the city for purposes of the MTCA. See Miss. Code Ann. § 11—46—1(f) (Rev. 2012).

      . Although Williams does not repeat the argument on appeal, in the circuit court he also argued that the limitations period was tolled pursuant to the MTCA for ninety-five days after he served the city with his notice of claim. See Miss. Code Ann. § 11-46-11(3), However, as explained above, any conduct by Farmer constituting defamation or slander "shall-not be considered ... within the course and scope of [Farmer’s] employment.” Miss. Code Ann. § 11—46—5(2). Because "these intentional torts are outside the scope of the MTCA’s waiver of immunity, ... the MTCA does not apply.” Zumwalt v. Jones Cty. Bd. of Sup'rs, 19 So.3d 672, 688 (¶ 83) (Miss. 2009). And. because "the MTCA does not apply to these torts, ... any legal action against a governmental employee-for these intentional torts must necessarily proceed against him or her as an individual.” Id. at (¶ 84). Therefore, because the MTCA expressly does not apply to claims for defamation or slander, it necessarily follows that the MTCA's notice provision does not apply to Williams's slander claim, Id. at (¶ 85); accord McGehee v. DePoyster, 708 So.2d 77, 79-81 (¶¶ 7-11) (Miss. 1998). And because the MTCA's notice provision does not apply to Williams's claim against Farmer, it also follows that his service of such notice on the city did, not serve to toll the statute of limitations pursuant to that provision. Stated differently, the MTCA’s statute of limitations is distinct from the statute of limitations applicable to non-MTCA defamation claims. The tolling provision of the MTCA's statute of limitations, section 11-46-11(3), does not toll the separate statute of limitations applicable to non-MTCA defamation claims, Miss. Code )Vnn. ..§ 15-1-35. The latter applies to Williams’s claim against Farmer, and it was unaffected by—and expired notwithstanding—Williams’s service of a notice of claim on the city.


text:
    Ralph Arnold SMITH, Jr., Appellant v. STATE of Mississippi and The District Attorney for the Fourth Circuit Court District of Mississippi, Appellees
    NO. 2015-CA-01471-COA
    Court of Appeals of Mississippi.
    03/14/2017

      WILLIAM CHARLES BELL, ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL, BY: BENNY MCCALIP “MAC” MAY, TIMOTHY HUTSON JONES, HAROLD EDWARD PIZZETTA III, ATTORNEYS FOR APPELLEES
    BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.
   ISHEE, J.,

FOR THE COURT:

¶ 1. The Leflore County Chancery Court granted a petition to have Ralph Arnold Smith Jr. involuntarily committed for inpatient treatment in - the Mississippi State Hospital at Whitfield (Whitfield). Smith’s counsel subsequently filed' a petition for outpatient treatment in the Rankin County Chancery Court. After' finding that the Hinds County Chancery Court had jurisdiction over the petition, the Rankin County Chancery Court dismissed his petition. Smith appeals. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

1Í2. After facing criminal charges in 2012, the Leflore County Circuit Court determined that Smith was not competent to stand trial. On January 6, 2015, the Leflore County Chancery Court held that Smith should be involuntarily committed to Whitfield. In February 2015, Smith’s counsel requested “a hearing on the question of [Smith’s] commitment for further treatment,” pursuant to Mississippi Code Annotated section 41-21-81 (Rev. 2013). Under Mississippi Code Annotated section 41-21-83 .(Rev, 2013), the First Judicial District of the Hinds County Chancery Court was required to conduct such a hearing regarding a person committed to Whitfield. The Hinds County court conducted the “20-day” hearing, and on March 10, 2015, determined that Smith needed to continue his'inpatient treatment at “Whitfield.

■ ¶ 3. Displeased with the Hinds County Chancery Court’s order of continued treatment, Smith’s counsel returned to the Leflore County Chancery Court and filed additional motions seeking outpatient treatment and other forms of relief to have Smith released from Whitfield. On July 30, 2015, however, the Leflore County Chancery Court entered a- final judgment, officially closing, the civil-commitment case. Displeased again, Smith’s counsel then filed a petition for outpatient treatment in the Rankin County Chancery Court under Mississippi Code Annotated section 44-21-74 (Rev. 2013).

¶ 4. The State moved to dismiss Smith’s petition for outpatient treatment. The State argued that because Smith was committed to Whitfield, the Hinds County Chancery Court was statutorily required to hear a petition for outpatient treatment. In addition, the State noted that the Hinds County Chancery Court had already found that Smith required further 'inpatient treatment, and Smith did not appeal that order. The Rankin County Chancery Court agreed that it lacked jurisdiction. Consequently, it granted the State’s. motion to dismiss. Smith appeals. During the pfen-dency of this appeal, Smith successfully petitioned the Hinds County Chancery Court’s release from Whitfield for outpatient treatment.

DISCUSSION

I. Smith’s case falls under the exception to the mootness doctrine, “capable of repetition yet evading review.”

¶ 5.- Because Smith has been released from Whitfield, this Court is faced with an appeal that could be considered moot. Generally, this Court will dismiss an appeal “when no useful purpose could be accomplished by .entertaining it, when so far as concerns any practical .ends to be served the decision upon, the legal questions involved would be merely academic.” Strong v. Bostick, 420 So.2d 1356, 1359 (Miss. 1982), Exceptions to the mootness doctrine, however, do exist. As such, we may address appeals considered moot where the matter is “capable of repetition yet evading review.” In re Bauman, 878 So.2d 1033, 1037 (¶ 15) (Miss. Ct. App. 2004) (civil-commitment action where appellant was discharged prior to adjudication. of his appeal, but held appeal fell under “capable of .repetition yet evading review” exception); see also Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975). An appeal that is “capable of repetition yet'evading review,” though moot, must- possess two qualities: (1) the challenged action was in its duration-too short to -be fully litigated prior to its cessation or expiration; and (2) there was a reasonable expectation that the same complaining party would be subject to the same action again. Bauman, 878 So.2d at 1037 (¶ 15) (citing Strong, 420 So.2d at 1359).

¶ 6, Applying the precedent set forth in Bauman, we find that Smith’s appeal falls within the purview of the “capable of repetition yet evading review” exception to the mootness doctrine. Smith’s commitment, though over a year in duration, does not defeat the first prong of this exception, as the subject of this appeal is the Rankin County Chancery Court’s dismissal of Smith’s petition for outpatient treatment, which Smith timely appealed while committed.- We find that the challenged action was too short in its duration to be fully litigated prior to its cessation or expiration. We also find that there is a reasonable expectation that Smith could be subject to the same action again. This is because Smith asserts that Hinds County did not, and does not, have proper jurisdiction over ; his petition for outpatient treatment, but that court ultimately granted the relief that Smith sought, Thus, we find this case meets both prongs of the exception. See Strong, 420 So.2d at 1359.

¶ 7. Lastly, this Court finds the present matter involves a question affecting the public interest. “[T]here is an exception to the general rule as respects moot cases, when the question concerns a matter of such a nature that it would be distinctly detrimental to the public interest that there should be. a failure by dismissal to declare and enforce a rule for future conduct.” Bauman, 878 So.2d at 1038 (¶ 18) (citing Allred v. Webb, 641 So.2d 1218, 1220 (Miss. 1994)). Thus, we find the possible conflict regarding which court has jurisdiction under the circumstances necessitates that this Court address the public interest at issue.

II. The Rankin County Chancery Court did not err as a matter of law in granting the State’s motion to dismiss.

¶ 8. The primary issue in this appeal is which court has jurisdiction over a request for outpatient treatment of someone who has been involuntarily committed for inpatient treatment at Whitfield. A de novo standard of review is employed by this Court when reviewing a trial court’s grant or denial of a motion to dismiss. Tallahatchie Gen. Hosp. v. Howe, 154 So.3d 29, 31 (¶ 7) (Miss. 2015), “Questions of jurisdiction and statutory interpretation ... present matters of law reviewed de novo.” Leg. of State v. Shipman, 170 So.3d 1211, 1214 (¶ 10) (Miss. 2015). Reviewing the statutes at issue, we find the Rankin County Chancery Gourt did not err as a matter of law in granting the motion' to dismiss.

¶ 9. The question turns on the correlation between sections 41-21-74(4) and 41-21-83. Section 41-21-74(4) relates to “outpatient treatment,” and provides that:

The chancery court of the county where the public facility is heated or the committing court shall . have jurisdiction over matters concerning outpatient commitments when such an order is sought subsequent to an inpatient .course of treatment pursuant to Sections 41-21-61 through 41-21-107, 43-21-611, 99-13-7 and 99-13-9.

(Emphasis added). Smith expressly sought relief pursuant to section 41-21-74. Under the language of section 41-21-74(4), then, Smith asserts that jurisdiction is vested in one of two courts: (1) the court in the county “where the public facility is located” (Rankin County); or (2) “the committing court” (Leflore County). Thus, Smith contends jurisdiction clearly vests in the Chancery Court of Rankin County for his petition for, outpatient treatment, as he was housed in Rankin County at Whitfield at the time, of his petition. Smith further asserts that because Leflore County closed his case, Rankin County is alternatively the only court with proper jurisdiction under the statute.

¶ 10. The State, however, asserts otherwise through its reading of section 41-21-83, which states the following:

If a hearing is requested as provided in [ejection 41-21-71, 41-21-81 [(Rev. 2013),] or 41-21-99 [(Rev. 2013)], the court shall not make a determination of the need for continued commitment unless a hearing is held and the court finds by clear and convincing evidence that (a) the person' continues to have mental illness or have an intellectual disability; and (b) involuntary commitment is necessary for the protection of the patient or others; and (c) there is no alternative to . involuntary commitment. Hearings held under this section shall be held in the chancery court of the county where the facility is located; however, if the patient is confined at the Mississippi State Hospital at Whitfield, Mississippi, the hearing shall be conducted by the Chancery Court of the First Judicial District of Hinds County, Mississippi.

(Emphasis added). The State, therefore, argues, as it did in its motion to dismiss, that based upon the language of section 41-21-83 and Smith’s confinement at Whitfield, it is Hinds County, rather than Rankin County, that possesses jurisdiction over Smith’s requested relief. We agree.

¶ 11. This Court has clearly articulated its standards for interpreting a statute. “The most fundamental rule of statutory construction is the plain[-]meaning rule, which provides that if a statute is not ambiguous, then this Court must apply the statute according to its terms.” Buckel v. Chaney, 47 So.3d 148, 158 (¶ 35) (Miss. 2010) (quoting State ex rel. Hood v. Madison Cty. Bd. of Supervisors, 873 So.2d 85, 90 (¶ 19) (Miss. 2004)). “Likewise, it is a well-settled rule of statutory construction that when two statutes pertain to the same subject, they must be read together in light of legislative intent.” Tunica Cty. v. Hampton Co. Nat’l Sur., 27 So.3d 1128, 1133 (¶ 15) (Miss. 2009) (citing Lenoir v. Madison Cty., 641 So.2d 1124, 1129 (Miss. 1994)). “The function of the Court is not to decide what a statute should provide, but to determine what it does provide.” Russell v. State, 231 Miss. 176, 181, 94 So.2d 916, 917 (1957). Statutes “on the same subject, although in apparent conflict, should if possible be construed in harmony with each other to give effect to each.” Tunica Cty., 27 So.3d at 1134 (¶ 16) (citing Miss. Gaming Comm’n v. Imperial Palace of Miss., 751 So.2d 1025, 1029 (¶ 15) (Miss. 1999)).

¶ 12. Heeding these canons of statutory construction, we address the specific statutes at issue in the present matter. Section 41-21-74(4) states that “[t]he chancery court of the county where the public facility is located or the committing court shall have jurisdiction over matters concerning outpatient commitments when such an order is sought subsequent to an inpatient course of treatment .... ” (Emphasis added). As Smith has asserted, the plain and unambiguous language of section 41-21-74(4) vests jurisdiction in either the Rankin County Chancery Court or the committing court of Leflore County. When reading section 41-21-83, however, conflict arises as to jurisdiction for hearings held pursuant to section 41-21-74. A plain-language reading of section 41-21-83 reveals that, as a general matter, hearings requested pursuant to section 41-21-74 “shall be held in the chancery court of the county where the facility is located[.]” See Miss. Code Ann. § 41-21-83. The statute did not stop there, however. Instead, the Legislature specifically stated that where the patient is confined at Whitfield, “the hearing shall be conducted by the Chancery Court of the First Judicial District of Hinds County, Mississippi” See id. (emphasis added). As these two statutes “pertain to the same subject, they must be read together in light of legislative intent.” Tunica Cty., 27 So.3d at 1133 (¶ 15).

¶ 13. To rebut the plain language of section 41-21-83, Smith seemingly avers that section 41-21-83’s reference to hearings held under section 41-21-74 relates only to section 41-21-74 (1)—(3). The State argues otherwise, and we agree. The plain and unambiguous language of section 41-21-83 applies broadly, directing that any hearing held pursuant to section 41-21-74 is to be heard by the Hinds County Chancery Court when the patient is confined at Whitfield. The statute in no way delineates that when a patient is confined at Whitfield, outpatient hearings under 41-21-74(l)-(3) must be held in Hinds County, while hearings under 41-21-74(4) must be held in the county where the public facility is located, despite the patient’s confinement at Whitfield. Thus, we find no merit to Smith’s assertion that section 41-21-83 impliedly carves out an exception for hearings specifically held under section 41-21-r 74(4).

¶14. To further support his argument, Smith contends 'that he did not request a hearing under any provision that is found in section 41-21-83. What Smith fails to realize, however, is that a request for a hearing under section 74-21-74(4) incorporates within it the mandates of section 41-21-83. This is because section 41-21-83 outlines the respective court’s procedural burden when conducting any hearing filed pursuant to sections 41-21-74, 41-21-81, or 41-21-99. See Miss. Code Ann. § 41-21-83. Therefore, we likewise find no merit to this contention.

¶ 15. Thus, reading sections 41-21-74 and 41-21-83 together, we find section 41-21-83’s plain and unambiguous language controlling of the jurisdictional issue at hand. See Buckel, 47 So.3d at 158 (¶ 35). Because Smith was undisputedly “confined at the Mississippi State Hospital at Whitfield” when he filed his petition for outpatient treatment, we find the plain language of section 41-21-83 required that the matter be resolved by the Chancery Court of the First Judicial District of Hinds County. Though section 41^-21-74 does not explicitly state which venue is proper for outpatient hearings requested by patients confined at Whitfield, we find that, after reading the statutes together in light of what the Legislature intended, any hearing by a patient confined at Whitfield at the time a petition is filed under section 41-21-74 must be heard in the Chancery Court of Hinds County. See also Miss. Code Ann. §§ 41-21-81; 41-21-89 (Rev. 2013); and 41-21-103 (Rev. 2013) (all stating that Hinds County shall have jurisdiction over matters for patients confined at Whitfield). Therefore, we find no merit to this issue.

CONCLUSION

¶ 16. Employing a de novo standard of review, we find- that the Rankin County Chancery Court did not err as a matter of law in dismissing Smith’s petition for outpatient treatment. Though Whitfield is located in Rankin County and, thus, Rankin County would ordinarily have proper jurisdiction to hear a petition for outpatient treatment under section 41-21-74(4), we hold that such jurisdiction was divested by virtue of section 41-21-83’s plain and unambiguous language. As such, we hold that Smith should have filed his petition in the First Judicial District of the Hinds County Chancery Court. Therefore, we affirm.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., NOT PARTICIPATING.

      . Smith remained committed and physically housed at Whitfield until his release in November 2016.

      . Smith’s counsel failed to mention the Hinds County Chancery Court’s order in his petition filed with the .Rankin County court.


author: LEE, C.J.,

text:
    Kelvin TRAVIS, Carolyn Travis, and All Persons or Entities and All Unknown Parties in Interest Claiming an Interest in the Real Property and Improvements Described Herein, Appellants v. GMAC MORTGAGE, LLC, Appellee
    NO. 2015-CA-01790-COA
    Court of Appeals of Mississippi.
    03/14/2017

      MAURICE MCINTOSH FORSYTH, ATTORNEY FOR APPELLANTS
    TERRY L. CAVES, RISHER GRANT-' HAM CAVES, ATTORNEYS FOR AP-PELLEE ■
    BEFORE LEE, C J., ISHEE AND GREENLEE, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. In this ■ appeal, we must decide whether the chancellor abused her discretion when, applying the doctrines of equitable estoppel and unjust enrichment, she ordered the divestiture and exchange of certain real property from Kelvin and Carolyn Travis to GMAC Mortgage LLC. Finding no abuse of discretion, we .affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In 2002, Donald Travis received a deed from R.C. Travis and Charles Travis, his father and uncle, to a parcel of land identified as Parcel A, located in Perry County, Mississippi. Donald and his wife, Joe Ann Travis, contracted with DIMA Homes to construct a house on the property described as Parcel A, They pledged the property as security for the construction loan. DIMA built the home according to Donald’s instructions, on what was believed to be Parcel A. Donald believed the house was built within the boundaries of the deed. Donald and Joe Ann signed a promissory note and deed of trust with Homecomings Financial Network Inc., pledging the house, improvements, and the land described as Parcel A as security for the loan. Homecomings Financial Network paid off the DIMA construction loan.

¶ 3. Donald and Joe Ann lived in the home from May 2003 until sometime in 2010 when they defaulted on the loan. Homecomings Financial Network assigned the deed of trust and note to Nationstar Mortgage LLC in November 2010. The property went into foreclosure. During that time, Donald’s brother and sister-in-law, Kelvin and.Carolyn Travis, negotiated to purchase the .home from Nationstar. Pursuant to the sale, a title search, and survey were performed, and the survey revealed that the house was located partly off of Parcel A. In fact, .the house was located partly on Parcel A, Parcel B, and Parcel C. Donald and Kelvin’s mother owned Parcels B and C. Due to the location of the house> the contract for. the sale of the home was cancelled.

¶4. In January 2011, Nationstar -foreclosed its deed of trust and conveyed the property to Federal. National Mortgage Association. Around the same time, Kelvin obtained a deed from, his mother to Parcels B and C. He admitted at trial that he believed this would enable him to secure a lower purchase price of the house. Federal National Mortgage Association conveyed its interest in. the. property to GMAC Mortgage LLC in February 2012. After GMAC acquired the property, it learned fhat the house was not completely located on Parcel A.

■ ¶ 5. In July 2012, Kelvin and Carolyn moved in to- the house and lived there for approximately three years, rent free. Kelvin claimed that he made improvements prior to moving in to the property, but was unable to show any evidence of expenditures. He stated that he believed he. would eventually obtain title to the house and Parcel A, but admitted knowing all along that GMAC claimed title to. Parcel A. Kelvin further admitted that neither he, nor Travis, nor their mother objected to the location of-the home during its construction.

¶ 6. GMAC filed suit in the Perry Cóunty Chancery Court against Kelvin and Carolyn (Travises) with claims of equitable estoppel, unjust enrichment, constructive trust, and ejectment. The Travises filed an answer but did not plead any affirmative defenses or assert any counterclaims. GMAC proposed to the chancellor a property exchange wherein the Travises would receive a 1.12-acre tract of land—an acreage equal to Parcels B and C; and GMAC would receive a two-acre tract of land containing the house—an acreage equal to Parcel A. The chancellor found that the Travises were not bona fide purchasers for value, and their occupation of the home constituted unjust enrichment. Applying the doctrines of equitable estoppel and unjust enrichment, the chancellor adopted the proposed exchange of land, imposed a constructive trust, and ordered the ejectment of the Travises from the home. The Travises now appeal.

STANDARD OF REVIEW

¶ 7. Appellate courts review appeals from a chancery court under a limit-, ed standard of review. Ward v. Harrell, 186 So.3d 410, 412 (¶ 11) (Miss. Ct. App. 2016) (internal citations omitted). “We will not disturb the chancellor’s factual findings if they were supported by substantial evidence.” Id. We will reverse the chancellor only if she abused her discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. Id.

DISCUSSION

¶ 8. For the first time ■ on appeal, the Travises argue that GMAC, through its predecessors in interest, had a duty to survey the land the subject home was constructed on. The Travises further contend that Donald was subjected to uneven bargaining power with DIMA Homes during construction of the house. In addition to being barred, we find these arguments lack merit.

¶ 9. It is well-settled' law that issues not raised at trial are procedurally barred on appeal. Conley v. Wright, 193 So.3d 663, 666 (¶ 12) (Miss. Ct. App. 2016) (citing Southern v. Miss. State Hosp., 853 So.2d 1212, 1215 (¶ 5) (Miss. 2003)). Not only did the Travises fail to raise these issues at trial, they also failed to plead any affirmative defenses or bring any counterclaims whatsoever before the chancery court. Additionally, in their brief before this Court, the Travises fail to cite any relevant legal authority to support their argument. We have previously held that “[fjailure to cite to relevant authority results in a waiver of, the issue on appeal.” McKnight v. State, 187 So.3d 635, 653 (¶ 66) (Miss. Ct. App. 2015) (quoting Bennett v. State, 933 So.2d 930, 953 (¶ 86) (Miss. 2006)). The Travises’ failure to bring their arguments before the chancery court, as well as their failure- to present any relevant legal authority before this Court, waived the consideration of them claims on appeal.

¶ 10. Notwithstanding waiver of their claims, the Travises’ contention that the chancellor was manifestly wrong is without merit. We note that a “chancellor’s remedial powers have long been marked by plasticity.” Scafidi v. Hille, 180 So.3d 634, 654 (¶ 67) (Miss. 2015) (citing Hall v. Wood, 443 So.2d 834, 843 (Miss. 1983)). And “[ejquity jurisdiction permits innovation that justice may be done.” Id. In applying the doctrine of equitable estoppel, the Mississippi Supreme Court has stated the following:

[I]f one man knowingly, though he does it passively by looking on, suffers another to purchase, and expend his money on land, under an erroneous opinion of title, without making known his claim, he should not afterwards be permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience is bound by an equitable estoppel.

Elchos v. Haas, 178 So.3d 1183, 1193-94 (¶ 31) (Miss. 2015).

¶ 11. Here, the chancellor found that the Travises—including Donald, Kelvin,' and their mother—passively looked on while GMAC’s predecessor in interest (DIMA) built the home on Parcels A, B, and C, without ever making known their claims to Parcels B and C. Accordingly, the chancellor found they were equitably estopped from claiming title to the house, and the portions of land upon which it was con-' structed.

¶ 12. In regard to the chancellor’s application of unjust enrichment and constructive trust, our supreme court has made it clear they are equitable remedies. Germany v. Germany, 123 So.3d 423, 431 (¶ 20) (Miss. 2013) (citing McNeil v. Hester, 753 So.2d 1057, 1064 (¶ 24) (Miss. 2000)). The supreme court has stated, and the chancellor so noted, that “[ujnjust enrichment applies to situations where there is no legal contract and the person sought to be charged is in possession of money or property which in good conscience and justice he should not retain but should deliver to another.” Ground Control LLC v. Capsco Indus. Inc., 120 So.3d 365, 371 (¶ 13) (Miss. 2013) (internal citations and quotation marks omitted). And a constructive trust is “created for the purpose of preventing unjust enrichment by one who holds legal title to property which, under principles of justice and fairness, rightfully belongs to another.” Jackson v. Mills, 197 So.3d 430, 439 (¶ 37) (Miss. Ct. App. 2016) (citing McNeil, 753 So.2d at 1064 (¶ 24)).

¶ 13. Here, the chancellor found that the Travises were not bona fide purchasers of Parcels B, C, or the house, as they did not pay any value for the land or home, and they occupied the home with actual notice of GMAC’s claim of right. As such, the chancellor found that the Travis-es’ occupation of GMAC’s property, without payment of value, constituted unjust enrichment and warranted the imposition of a constructive trust. Further, the property exchange ordered by the chancellor gave the Travises a tract of land commensurate with the size and value of Parcels B and C as originally conveyed to them in 2011. We do not find that the chancellor was manifestly wrong in her application of these equitable doctrines to fashion the remedy herein. Therefore, the Travises’ claim is without merit.

¶ 14. THE JUDGMENT OF THE PERRY COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.