author: RANDOLPH, PRESIDING JUSTICE,

text:
    WAYNE COUNTY SCHOOL DISTRICT v. J. Ed MORGAN, in his Official Capacity as the Commissioner of Revenue of the Mississippi Department of Revenue
    NO. 2015-SA-01363-SCT
    Supreme Court of Mississippi.
    03/16/2017
    Rehearing Denied August 17, 2017

      ATTORNEYS FOR APPELLANT: C. TED SANDERSON, JR., LESLIE BOUNDS, CHARLES WEIL GOLDBERG, JR.
    ATTORNEYS FOR APPELLEE: JAMES L. POWELL, SYLVIE D. ROBINSON
    BEFORE RANDOLPH, P.J., KING AND BEAM, JJ.
   RANDOLPH, PRESIDING JUSTICE,

FOR THE COURT:

¶ 1. After this Court held in Jones County School District v. Mississippi Department of Revenue, 111 So.3d 588 (Miss. 2013), that a school district was not liable for oil and gas severance taxes on royalties derived from oil and gas production on sixteenth-section land, the Chancery Court of Wayne County held that Wayne County School District (WCSD) was owed interest by the Mississippi Department of Revenue (MDOR) on its overpayment of severance taxes at the rate of one percent (1%) per month. The chancellor determined, based on Section 27-65-53 of the Mississippi Code, that the payment should start on June 5, 2013, ninety days after this Court’s ruling in Jones County. Finding that the chancellor correctly applied the statute, we affirm the judgment of the chancery court.

STATEMENT OF FACTS AND PROCEEDINGS BELOW

¶ 2. On October 7, 2008, WCSD filed a claim for refund of severance taxes paid to MDOR on oil and gas production from sixteenth-section lands located within the county. WCSD supplemented its claim on June 7, 2011, and on April 10, 2013, for a total refund claim in the amount of $2,345,560. MDOR denied WCSD’s initial claim for a refund, arguing that no express exemption from taxation was provided for school districts and sixteenth-section lands in the oil and natural gas severance tax statutes of the Mississippi Code.

¶ 3. While WCSD’s refund claim was pending, the Jones County School District (JCSD) filed suit against MDOR, after it was denied a similar refund request. On May 5, 2011, the chancery court entered its Final Judgment, reversing MDOR’s denial of refund claims to JCSD. On March 7, 2013, this Court issued its opinion finding that school districts were not liable for oil and gas severance taxes on sixteenth-section royalty interests. Jones County Sch. Dist. v. Dep’t of Revenue, 111 So.3d 588, 605 (Miss. 2013). This Court also held that no statutes of limitation applied to the school district’s refund claims. Id. at 607.

¶ 4. Following this Court’s holding, MDOR agreed to pay WCSD’s refund claim and began making payments in January 2014. WCSD filed its Complaint for Declaratory Judgment on April 9, 2014, seeking interest on its refund claim at the rate of one percent, beginning ninety days after WCSD filed its application for refund. As of the date of this appeal, MDOR has refunded WCSD $2,345,560 for oil and gas severance taxes and $26,927.02 in interest.

¶ 5. On July 22,2014, a hearing was held on WCSD’s complaint. WCSD argued that Section 27-65-53 of the Mississippi Code mandated that MDOR pay interest beginning ninety days after the application for refund was filed and ending on the date full payment was made. MDOR argued that interest would not begin to accrue until MDOR finalized the amount of refund owed. However, MDOR conceded that the more accurate date would be the date that the Supreme Court made its ruling.

¶ 6. The chancellor held that:

the 90-day time for payment of the refund commenced on the date that the Supreme Court determined that the tax was unlawful. At that point in time, the Department had 90 days to refund to the Wayne County School District the amount of their then pending claim, which I understand was $1,568,301.60.

On August 4, 2015, the chancery court entered its final judgment ordering MDOR to pay WCSD “interest on severance taxes paid to the State on royalty interests on oil and gas severed and produced from the County’s sixteenth-section lands.” The chancellor found that MDOR should “calculate the interest owed WCSD at the rate of one percent (1%) per month starting on June 5, 2013, allowing the Department 90 days, pursuant to Miss. Code Ann. § 27-65-53, from the date of the Mississippi Supreme Court’s opinion.” MDOR was ordered to pay additional interest in the amount of $182,953.75, receiving credit for the $26,927.02 in interest previously paid to WCSD. MDOR timely paid WCSD the additional interest ordered by the chancellor. Aggrieved with the chancellor’s ruling, WCSD filed this appeal.

ISSUES

¶7. WCSD raised the following issues (listed verbatim):

I. Whether the ruling by the chancellor that MDOR should calculate interest on WCSD’s severance tax overpayment at the rate of one percent (1%) per month starting on June 5, 2013, which was 90 days after the Supreme Court’s opinion in Jones Cty. Sch. Dist. v. Miss. Dep’t of Revenue, 111 So.3d 588 (Miss. 2013), was incorrect as a matter of law since it is contrary to Miss. Code Ann. § 27-65-53, 3rd par. (1972).
II. Whether Miss. Code Ann. § 27-65-53, 3rd par., requires the payment of interest on WCSD’s overpayment of severance taxes at the rate of one percent (1%) per month starting ninety (90) days after WCSD filed the subject application for refund.
III. Whether the balance owed to WCSD under Miss. Code Ann. § 27-65-53, 3rd par., should be calculated pursuant to the so-called “United States Rule” under which MDOR payments are first allocated to accrued interest and then to the principal portion of the tax overpayment debt, or by first allocating MDOR payments to the principal portion of the tax overpayment.
IV. Whether the Court should award additional interest under MRAP 37 if the overpayment interest amount is calculated by applying MDOR payments first to the underlying tax overpayment resulting in a frozen amount of interest owed as of the last refund payment by MDOR.

ANALYSIS

¶ 8. This Court applies a de novo standard of review when reviewing questions of law. Natchez Equip. Co., Inc. v. Gibbs, 623 So.2d 270, 273 (Miss. 1993). When engaging in statutory interpretation, this Court’s duty is “to neither broaden nor restrict the legislative act.” Miss. Dep’t of Transp. v. Allred, 928 So.2d 152, 156 (Miss. 2006). Additionally, “courts cannot restrict or enlarge the meaning of an unambiguous statute,” Green v. Cleary Water, Sewer & Fire Dist., 910 So.2d 1022, 1027 (Miss. 2005).

[When] considering a statute passed by the Legislature, ... the first question a court should decide is whether the statute is ambiguous. If it is not ambiguous, the court should simply apply the statute according to its plain meaning and should not use principles of statutory construction. Whether the statute is ambiguous or not, the ultimate goal of this Court is to discern and give effect to the legislative intent.

Allred, 928 So.2d at 154 (quoting City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992) (citations omitted)).

¶ 9. The collective issue presented on appeal is, based on the set of facts presented in today’s case, when interest begins running on the overpayment of severance tax pursuant to Mississippi Code Section 27-65-53. Section 27-65-53 reads in pertinent part that:

If any overpayment of tax as reflected in an application or amended return, or both, filed by the taxpayer, and verified by the commissioner or otherwise determined to be due by the commissioner or commission, is not refunded or credited to a taxpayer’s account within ninety (90) days after the application or amended return is filed or the date the commission or commissioner determines a refund is due, whichever is later, interest at the rate of one percent (1%) per month shall be allowed on such overpayment computed for the period after expiration of the ninety-day period provided herein to the date of payment.

Miss. Code Ann. § 27-65-53 (Rev. 2010) (emphasis added). Based on a plain reading of the unambiguous statute, the chancellor correctly determined that “the 90-day time for payment of the refund commenced on the date the Supreme Court determined that the tax was unlawful,” which coincided with the date the Commission acted. As argued by the Commission, “the Commission determined a tax refund was owed to WCSD upon the Court’s issuance of the Jones County opinion.” This statute neither contains language restricting the nature of the Commissioner’s determination regarding the refund nor does it exclude any determinations based on court rulings. To inject such restrictions would require a departure from the plain-language approach required when a statute, such as this one, is unambiguous.,

¶ 10. Since the plain language of the statute requires MDOR to pay interest only if it fails to issue a complete refund within ninety days after the later of either (1) the date the application is submitted, or (2) the date the Commissioner, determines a refund is due, MDOR owes interest in this matter beginning ninety days after this Court issued the Jones County opinion.

¶ 11. Because the chancellor’s ruling was proper based on the plain language of Section 27-65-53, it is not necessary to address WCSD’s remaining issued raised regarding calculation of the balance owed or additional interest.

CONCLUSION

¶ 12. Based upon the above analysis, we affirm the judgment of the chancery court.

f 13. AFFIRMED,

DICKINSON, P.J., KITCHENS, KING, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR. WALLER, C.J., NOT PARTICIPATING.

      . We recognize that the date this Court rules and the date the Commission acts may not always coincide. Based upon the facts presented in today's case, the two dates were the same.


source: Caselaw Access Project

author: JAMES, J.,

license: Public Domain

text:
    Harold HATHORN Appellant v. ESCO CORPORATION Appellee
    NO. 2015-WC-01528-COA
    Court of Appeals of Mississippi.
    11/15/2016
    Rehearing Denied March 18, 2017
    Certiorari Denied August 3, 2017

      Christopher Hederi Neyland, Attorney for Appellant:
    Clifford Barnes Ammons Jr., Attorney for Appellee:
    BEFORE ISHEE, P.J., CARLTON AND JAMES, JJ.
   JAMES, J.,

FOR THE COURT:

¶ 1. This appeal arises from Harold Hat-horn’s workers’ compensation claim against ESCO Corporation. After a hearing, the administrative judge found that Hathorn’s injury caused a forty-three percent permanent-partial-industrial loss. The Mississippi Workers’ Compensation Commission affirmed the order as to compens-ability due to injury but amended the or- ■ der to increase Hathorn’s industrial loss to fifty percent. Hathorn appeals the Commission’s order. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 8, 2012, Hathorn suffered a compensable injury to his right hand as a result of operating his grinder at ESCO. Prior to his injury, Hathorn had worked two and one-half years as a grinder at ESCO, a company that manufactured steel parts for mining equipment. After taking medical leave to be treated, Hathorn returned to ESCO in September 2012 and continued working there until November 7, 2013.

¶ 3. Due to his injury, Hathorn was diagnosed with DeQuervain’s tenosynovitis in his right hand. Dr. James Watson, an or-thopaedic surgeon, operated on Hathorn’s hand. Dr. Watson concluded that Hathorn was at maximum medical improvement (“MMI”) on October 30, 2012, and assigned a one percent permanent medical impairment to Hathorn’s right upper extremity. Dr. Watson released Hathorn to return to work with certain restrictions: he was not to use a grinder and not to lift over fifty pounds. Hathorn continued to have pain in his right hand, and in May 2013, he began to visit Dr. Eric Pearson, a pain specialist. Dr. Pearson determined that Hathorn was at MMI on October 28,2013, and assigned a twenty percent permanent medical impairment to Hathorn’s right upper extremity.

¶ 4. Upon Hathorn’s return to ESCO in September 2012, he picked up paper in the parking lot and cleaned bathrooms as an accommodation of his work restrictions. He performed various janitorial and maintenance duties and ran errands, driving an automatic company vehicle. In addition, Hathorn drove a sweeper or riding vacuum. Hathorn also painted at ESCO.

¶ 5. In late 2013, Hathorn testified that he drove a forklift for a day and “later on that evening my hand just swole [sic] up.” According to Hathorn, he called Dr. Pearson the next day, and Dr. Pearson told him not to operate a forklift again. Two weeks later, Hathorn’s supervisor asked Hathorn to drive a forklift, and Hathorn claims to have requested that another employee drive the forklift. When the incident was reported to Hathorn’s manager, ESCO placed Hathorn on leave, telling him to obtain a written work restriction that said he should not operate forklifts. Under company policy, ESCO gave Hathorn three days, November 4-6, 2013, to obtain the work restriction. Hathorn did not deliver any further restrictions to ESCO, and ESCO terminated him for insubordination on November 7, 2013.

¶ 6. Hathorn filed his petition to controvert on January 10, 2014. A hearing on the merits was héld. The issue before the ad-' ministrative judge was whether Hathorn suffered an industrial loss of use of his . right arm that was greater than the medical impairment rating.

¶ 7. At the hearing, Bruce Brawner, accepted as a vocational expert, testified that Hathorn could not perform work as a grinder, but that he .could perform other work. It was Brawner’s opinion that Hat-horn was capable of performing medium-level work because of Hathorn’s functional-capacity evaluation. Brawner testified that Hathorn could perform some of the jobs he had performed in the past and that Hat-horn had demonstrated this ability when he returned to work at ESCO.

¶8. Hathorn’s prior work history was discussed in detail at the hearing. Before his employment at ESCO, Hathorn worked at Georgia Pacific as a machine operator, where he says he punched buttons. He worked at Georgia Pacific twice: from 1998 to 2001 and from 2002 to 2009. Hathorn worked at Walnut Grove Correctional Facility as a guard for one year in between his employment at Georgia Pacific. Before working at Georgia Pacific, Hathorn worked at Walmart, where he pushed carts, stocked shelves, and performed maintenance. He testified that he sometimes had to lift more than fifty pounds, but he agreed that most of his work was light-weight. Hathorn also painted at Wal-mart. Prior to Walmart, Hathorn worked as a hospital custodian and served in the United States Army.

¶ 9. The administrative judge found that Hathorn had a forty-three percent industrial loss due to his injury but that Hat-horn could perform the substantial acts of some of his former employment. ,The administrative judge also found that Hathorn was. entitled to compensation for an additional twenty-three percent , of loss as ESCO had already compensated Hathorn for his twenty percent medical loss.

¶ 10. Hathorn filed a petition for review before the Commission. The Commission affirmed the administrative judge’s factual findings but amended the administrative judge’s order to award Hathorn a fifty percent industrial loss.

¶ 11. Hathorn now appeals. On appeal he argues that the Commission’s decision was not supported by substantial evidence. Hathorn argues that because he has permanent work restrictions that prevent him from engaging in the substantial acts of his pre-injury employment, he is entitled to a presumption of a total loss'to a scheduled member.

STANDARD OF REVIEW

¶ 12. This Court’s review ' of workers’ compensation appeals is “limited to a determination of whether the decision of the Commission is supported by substantial evidence.” Casino Magic v. Nelson, 958 So.2d 224, 228 (¶ 13) (Miss. Ct. App. 2007). It is not the role of this Court to “re-weigh the evidence to determine whether the' preponderance of evidence might favor a result contrary to the Commission’s determination.” Hollingsworth v. I.C. Isaacs & Co., 725 So.2d 251, 254 (¶ 11) (Miss. Ct. App. 1998). Instead, we are obligated to affirm where the Commission’s findings are supported by substantial evidence in the record. Id.

DISCUSSION

¶ 13. A claimant’s recovery in a workers’ compensation action is governed by Mississippi Code Annotated sections 71-3-1 to - 129 (Rev. 2011 & Supp. 2016). The statute defines the term “disability” as: “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings.” Miss. Code Ann. § 71-3-3(i).

¶14. Subsection 71-3-17(a) provides that a claimant may receive compensation— “[i]n case of total disability adjudged to be permanent”—for a maximum of 450 weeks. Id. § 71-3-17(a) (“[Permanent total disability shall be determined in accordance with the facts.”). Further, subsection 71-3-17(c) governs a, claimant’s recovery for permanent partial disability to a hand. Id. § 71—3—17(c)(3) (“In case of disability partial in character but permanent in quality, the compensation ... shall be paid to the employee” for a maximum of 150 weeks for a lost hand.). The same section defines the terms “total loss of use” and “partial loss of use” as follows:

(22) Total loss of use: Compensation for permanent total loss of use of a member shall be the same as for loss of the member.
(23) Partial loss or partial loss of use: Compensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of the member.

Id. § 71-3-17(c)(22)-(23).

¶ 15. In addition to the statutory definitions, the courts have developed definitions that apply in workers’ compensation actions. “‘Functional’ or-‘medical’ loss refers to physical impairment.” Meridian Prof'l Baseball Club v. Jensen, 828 So.2d 740, 745 (¶ 11) (Miss. 2002). “'Industrial’ or ‘occupational’ loss is the functional or medical disability as it affects the clairti-ant’s ability to perform the duties of employment.” Id. (internal quotation omitted).

¶ 16. “[I]n some cases, despite a partial functional loss of a scheduled member, the claimant’s industrial or occupational disability or loss of wage earning capacity controls his degree of disability.” Smith v. Jackson Constr. Co., 607 So.2d 1119, 1126 (Miss. 1992). Where an employee is able to demonstrate a total occupational loss—despite a partial functional loss—section 71-3-17(a), the permanent disability subsection, governs the claimant’s amount of recovery. Smith, 607 So.2d at 1128. In fact,

Section 71-3-17(a) covers all cases of permanent total occupational disability, to the exclusion of Section 71-3-17(c) ... / Where an employee suffers an injury covered by the schedule in Section 71-3-17(c) and where that injury results in a permanent loss of wage earning capacity within Section 71-3-17(a), the latter section controls exclusively and the employee is not limited to the number of weeks of compensation prescribed in Section 71-3-17(c)’s schedule.

Smith, 607 So.2d at 1128 (emphasis in original).

¶ 17. The Mississippi Supreme Court, in Jensen, addressing this interplay between the statute’s subsections, established a rebuttable presumption: “[W]here a permanent partial disability renders a worker unable to continue in the position held at the time of injury, we hold that such inability creates a rebuttable presumption of total occupational loss of the member.” Jensen, 828 So.2d at 747 (¶ 21). “The presumption arises when the claimant establishes that he has made a reasonable effort but has been unable to find work in his usual employment, or makes other proof of his inability to perform the substantial acts of his usual employment.” Id. at 747-48 (¶ 21). The Jensen court defined “usual employment” as “jobs in which the claimant has past experience, jobs requiring similar skills, or jobs for which the worker is otherwise suited by his age, education, experience, and any other relevant factual criteria.” Id. at 747 (¶ 20).

¶ 18. This rebuttable presumption is “subject to other proof of the claimant’s ability to earn the same wages which the claimant was receiving at the time of injury.” City of Laurel v. Guy, 58 So.3d 1223, 1226 (¶ 15) (Miss. Ct. App. 2011) (quoting Jensen, 828 So.2d at 747 (¶ 21)). “Rebuttal is shown by all the evidence concerning wage-earning capacity.” Id. at 1228 (¶ 24).

¶ 19. This is a case of a partial permanent disability to a scheduled member—Hathorris right hand. Hathorn argues that the Jensen presumption should apply. He claims that because of his injury he has been unable to find work and that he can no longer perform the substantial acts of his usual employment. Hathorn argues that the Commission erred by not properly applying the Jensen presumption.

¶20. We disagree. The record shows that the Commission’s findings are supported by substantial evidence. Further, the Commission correctly applied the Jensen presumption. The Commission specifically found “that the medical and vocational proof in this claim rebuts any presumption as to [Hathorris] alleged total industrial loss of use to the right upper extremity.” Substantial evidence supports this finding.

¶21. Hathorris post-injury employment at ESCO demonstrates that he can perform some of the substantial acts of his ususal employment. Hathorn worked at ESCO for more than a year after Dr. Watson determined he was at MMI. Also, Hathorn continued to work at ESCO despite his treatment with Dr. Pearson. While Hathorn no longer used a grinder or lifted over fifty pounds, he still continued his employment at ESCO for an entire year. He worked for the maintenance department, drove a company vehicle, and operated a sweeper. Plus, Hathorn performed some custodial duties similar to his work as a hospital custodian. He also painted as he had done at Walmart. In addition, Esco terminated Hathorn as a result of his failure to follow company policy, not as a result of discriminatory action by ESCO.

¶22. Brawner testified about the job opportunities that were available to Hat-horn. He recognized that Dr. Watson and Dr. Pearson released Hathorn for “medium work,” “requiring occasional lifting or carrying, pushing or pulling of up to 50 pounds and the frequent lifting or carrying, pushing, pulling of 25 pounds.” Brawn-er testified that Hathorn was “slightly above average” when considering his twelve years of education. This was significant as “some employers use that as a baseline as they seek applicants.” After “looking] at the work restrictions and determining] what jobs fit ... [that are] closely similar to what [Hathorn has] done before,” Brawner listed ten general occupations that Hathorn would be able to perform with his injury, some of which were similar to his employment at ESCO. In addition, Brawner testified that there was “a viable labor market within a reasonable commuting distance for a lot of types of jobs for which he would qualify.”

¶ 23. Hathorris suggestion that the administrative judge and Commission erred in not finding Hathorn had a total loss to his hand ignores established workers’ compensation law. Hathorn argues that he is entitled to additional compensation because he can no longer work as a grinder for the same wages that he did prior to his hand injury. The Jensen court, however, found:

“[U]sual employment” is broader in scope than the job held at the time of the injury, and narrower than “other employment” as contained in § 71-3-3(i). Usual employment in this context means the jobs in which the claimant has past experience, jobs requiring similar skills, or jobs for which the worker is otherwise suited by his age, education, experience, and any other relevant factual criteria.

Jensen, 828 So.2d at 747 (¶ 20). Hathorn’s post-injury employment at ESCO was consistent with a number of the previous jobs he had worked. Also, on cross-examination, Hathorn admitted that many of his previous job duties—such as those as a machine operator for Georgia Pacific—were within the limits of his work restrictions.

¶ 24. The record also demonstrates that Hathorn did not demonstrate an incapacity post-injury to earn the same wages as he had been earning pre-injury. Hathorn’s work at ESCO evidenced this. Hathorn did not claim, that ESCO reduced his wages after he returned from the treatment of his injury. Brawner also addressed the issue of wages, recognizing that companies such as Georgia Pacific paid more today than when Hathorn had first worked for them sixteen years before.

¶ 25. Even though Hathorn’s job search was unfruitful, it is not conclusive proof that he was unemployable. Brawner’s expert testimony was that Hathorn was employable. Additionally, Hathorn admitted that he did not know the specific types of positions certain employers were offering when he filled out applications. He further testified that he did not seek employment in the security, maintenance, or housekeeping fields. Also, the administrative judge, in reaching her decision, recognized that Hathorn had not applied for a position with Weyerhaeuser Corporation that “would [have] be[en] similar to the Georgia Pacific job he performed in the past.”

¶ 26. As an appellate court, our role is not to reweigh the evidence to determine if it favors a result contrary to the Commission’s decision. We are to decide if the record contains substantial evidence to support the Commission’s findings. Here, there is substantial evidence in the record to support the findings of the Commission. Therefore, we affirm.

CONCLUSION

¶27. Because there is substantial evidence in the record to support the Commission’s order, we affirm.

¶ 28. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, WILSON AND GREENLEE, JJ., CONCUR. FAIR, J., NOT PARTICIPATING.

      . There appears to be some discrepancy as to the date that Dr. Pearson determined Hathorn to be at MMI. At the hearing, the parties stipulated to October 7, 2013, but the administrative judge stated that “Dr. Pearson was of the opinion that Claimant reached [MMI] on October 28, 2013.” Dr. Pearson’s deposition testimony, which was introduced as evidence at the hearing, appears to support October 28, 2013, as the date of Hathom’s MMI. Our analysis is the same under either date.

      . A written work restriction regarding the forklift was subsequently provided to ESCO's attorney on the week of the hearing on the merits. ESCO’s representative testified that he had not seen the restriction before ESCO’s attorney sent it to him, The actual restriction, dated November 7, 2013, was from Dr. Pearson. The restriction was addressed "To Whom It May Concern” and did not include any mailing address. The testimony is uncontra-dicted that ESCO was not given this restriction before the week of the hearing.

      . Weyerhaeuser is located in Philadelphia, Mississippi—Hathorn’s hometown.


author: GRIFFIS, P.J.,

text:
    Alvin Lee JOHNSON a/k/a Alvin Johnson, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01064-COA
    Court of Appeals of Mississippi.
    02/28/2017
    Rehearing Denied August 15, 2017

      M.A. BASS JR., MICHAEL R. BONNER, ATTORNEYS FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL, BY: ALICIA AINSWORTH, JASON L. DAVIS, ATTORNEYS FOR AP-PELLEE
    BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. Alvin Johnson was convicted of two counts of statutory rape in violation of Mississippi Code Annotated section-97-3-65 (Rev. 2014). Johnson was sentenced to a term of life for Count I and fifteen years for Count II, to run concurrently. The circuit court denied Johnson’s posttrial motions. Johnson now appeals. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Between June and August of 2014, Alvin Johnson was a frequent visitor to the home of Angie Harris and Clifton Green. Johnson, a long-time family friend, spent numerous hours at the home and was well known to Angie’s daughters, A.H. and T.H. A.H., who was eleven years old, informed her godmother that she had sex with Johnson and believed she may. be pregnant. Angie reported.the allegation to the Port Gibson Police Department. After an investigation, it was determined that A.H. had been sexually active. When questioned, T.H., who was fifteen at the time, also admitted to having a sexual relationship with Johnson. Johnson-was twenty-nine years old when the allegations were made.'

¶ 3. Johnson was indicted on two counts of statutory rape, in violation of Mississippi Code Annotated section 97-3-65. Statutory rape is committed when:

[A]ny person seventeen (17) years of age or older has sexual intercourse with a child who ... [i]s at least fourteen (14) but under sixteen (16) years of age; [i]s thirty-six (36) or more months younger than the person; and [i]s not the person’s spouse; or [when a] person of any age has sexual intercourse with a child who .., [i]s under the age of fourteen (14) years; [i]s twenty-four (24) or more months younger than the person; and [i]s not the person’s spouse.

Miss. Code Ann. § 97-3-65. After a jury trial, on May 27, 2015, Johnson was fouhd guilty and sentenced to a term of life for Count I and fifteen years for Count II, -with the "sentences to run concurrently.

¶ 4. Johnson filed motions for a new trial and for judgment notwithstanding the verdict. Both were denied. Johnson now appeals and argues: (1) a new trial must be granted because a juror withheld substantial information or misrepresented material facts, and (2) testimony was admitted in violation of his right to confront the witnesses against him.

STANDARD OF REVIEW

¶ 5. “This Court- may not reverse the [trial] court’s decisions regarding jury selection unless there, is an abuse of discretion.” Williams v. State, 61 So.3d 981, 984 (¶ 14) (Miss. Ct. App. 2011). “The standard of review for either the admission or exclusion of evidence is abuse of discretion.” McGriggs v. State, 987 So.2d 455, 457 (¶ 3) (Miss. Ct. App. 2008) (citation omitted). “Even if this Court finds an erroneous admission or exclusion of evidence, we will not reverse unless the error adversely affects a substantial right of a party.” Id. (citation omitted).

ANALYSIS

I. Voir Dire

¶ 6. Johnson argues the trial court erred when it qualified Shirley Darden as a juror. He contends that Darden failed to respond when asked if she knew Johnson or his family members. He argues the omission implies prejudice and warrants a new trial.

¶7. The State contends Johnson never objected to Darden sitting as a juror. Rather, it was the State’s objection, after the trial commenced, that initiated the trial judge’s voir dire of Darden. The State asserted Darden had knowledge of Johnson and his children through a convoluted relationship. The State further contends it was Johnson’s attorney who argued Darden could still be fair and impartial despite her knowledge of him. The trial court found the same and denied the State’s motion to exclude Darden from the jury. The State argues that Johnson neither objected during trial nor in any of his posttrial motions and is now procedurally barred from raising the issue.

¶ 8. The Mississippi Supreme Court has “recognized a procedural bar on appeal where the defense has failed [to] timely ... object to the State’s peremptory challenges to venire members.” Keller v. State, 138 So.3d 817, 842 (¶ 43) (Miss. 2014) (citations omitted). “Moreover, a party who fails to object to the jury’s composition before it is empaneled waives any right to complain thereafter.” Id. “A defendant who wishes to claim error has an obligation to call to the court’s attention matters of which he is aware, and should he fail to do so, he waives any objection.” Doss v. State, 906 So.2d 836, 840 (¶ 16) (Miss. Ct. App. 2004).

¶ 9. Johnson did not object to Darden as a jury member, either before trial, contemporaneously with the State’s objection during trial, or in his posttrial motions. Johnson filed two posttrial motions, and each specified why he believed that he was entitled to a new trial. But neither motion asserted the present issue now on appeal.

¶ 10. Johnson’s failure to timely assert an objection to the trial court’s decision to allow Darden as a jury member is procedurally barred. This Court previously held, in Doss, and finds similarly here, that it was likely Johnson believed Darden “would be a favorable juror, and therefore did not [initially] challenge her.” This issue is without merit.

¶ 11. Notwithstanding the procedural bar, we analyze this issue on the merits. This Court has held “when a party shows that a juror withheld substantial information or misrepresented material facts, and where a full and complete response would have provided a valid basis for challenge for cause, the trial court must grant a new trial ....” Walker v. State, 121 So.3d 320, 323 (¶ 6) (Miss. Ct. App. 2013) (citations omitted). This Court, in Wright v. State, 9 So.3d 447, 451 (¶ 14) (Miss. Ct. App. 2009), deferred to the supreme court’s assessment of juror impartiality:

Under Mississippi law, any person not disqualified under Mississippi Code Annotated section 13-5-1, who will make oath that he or she is impartial, is competent to sit as a juror in a criminal case. The trial judge whose duty is to see that a competent, fair, and impartial jury is empaneled, is empowered with broad discretion to determine whether a prospective juror can be fair and impartial—notwithstanding the juror’s admission under oath that he or she will be.

(Quoting Archer v. State, 986 So.2d 951, 958-59 (¶ 30) (Miss. 2008)). Further, this Court has held “[a] person is competent to be a juror if the juror has no interest, bias or prejudice in the prosecution, and the juror has no desire to reach a result other than that gained from the evidence and the law in the case.” Williams, 61 So.3d at 984 (¶ 14).

¶ 12. In this case, the trial judge found no evidence that Darden could not be fair and impartial. Although Darden did not initially disclose knowledge of Johnson, this omission was later cured. The trial judge conducted a second voir dire and discovered the convoluted, distant relation of Darden and Johnson. When asked, Dar-den did not deny knowledge of Johnson; she admitted that she was familiar with Johnson from around Port Gibson. Darden was not a blood relative and did not have a personal relationship with Johnson.

¶ 13. We do not find error occurred when Darden was allowed to continue as a juror, after the State’s mid-trial objection to her presence. Langston v. State, 791 So.2d 273, 281 (¶ 20) (Miss. Ct. App. 2001). Thus, the trial court did not abuse its discretion when it accepted Darden’s assurance that she could render a fair and impartial judgment. This issue is without merit.

II. Confrontation Clause

¶ 14. Johnson next argues that the testimony of Chief Calvin Jackson of the Port Gibson Police Department was admitted in violation of the Confrontation Clause. Johnson asserts that Chief Jackson was permitted, over several objections, to give testimonial evidence concerning the investigation. Johnson contends the trial court erred when it allowed Chief Jackson to testify as to what he was told by witnesses during the course of his investigation. He argues this deprived him of the right to cross-examine, impeach, and challenge the credibility of each witness in the presence of the jury.

¶ 15. The State contends that Johnson asserted hearsay objections at trial, rather than objections based on violations of his rights under the Confrontation Clause of the Sixth Amendment. The State argues Johnson’s failure to object, either contemporaneously or in his posttrial motions, procedurally bars his assertion of error on appeal. The State further contends that Chief Jackson’s testimony, regarding witness statements, was given to detail the next steps taken in the investigation, not to establish the truth of the matter asserted, which would violate the hearsay rule.

¶ 16. In Ezell v. State, 132 So.3d 611, 612 (¶ 3) (Miss. Ct. App. 2013), this Court held that a criminal defendant’s argument was procedurally barred, where he failed to make a contemporaneous Sixth Amendment (Confrontation Clause) objection to the admission of testimony and did not raise an objection in his posttrial motions. This Court had previously recognized that a violation of the Confrontation Clause impacts a fundamental, substantive right. Id. (citation omitted). However, this Court also held “general hearsay objection[s] [are] insufficient to preserve an alleged Confrontation Clause violation for appellate review.” Anthony v. State, 23 So.3d 611, 620 (¶ 41) (Miss. Ct. App. 2009) (citations omitted).

¶ 17. Johnson relied heavily on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), to support his argument for reversible error. In Crawford, the United States Supreme Court held that “where the out-of-court statement is ‘testimonial’ in nature, the statement is generally not admissible unless the declarant is unavailable to' testify in court, and the defendant has had a prior opportunity to cross-examine him or her.” Anderson v. State, 1 So.3d 905, 914-15 (¶ 25) (Miss. Ct. App. 2008) (citing Crawford, 541 U.S. at 54, 124 S.Ct. 1354). At the trial-court level, Johnson asserted a standing objection to hearsay evidence. He did not, however, object on the basis that he was denied the right to confront the witnesses who provided statements to Chief Jackson. Thus, he effectively waived the issue for appeal.

III. Hearsay

1Í18. We now address this issue under a hearsay analysis as the underlying basis of Johnson’s contention. “Under Mis-' sissippi Rule of Evidence 801(c), hearsay is defined as ‘a statement, other than one made by the declarant while testifying at the trial or hearing, offered in[to] evidence to prove the truth of the matter asserted.’” Whittington v. State, 49 So.3d 107, 110 (¶ 13) (Miss. Ct. App. 2010) (quoting M.R.E. 801(c)). A trial court’s decision to admit or exclude testimony is reviewed for abuse of discretion. McGriggs v. State, 987 So.2d 455, 457 (¶ 3) (Miss. Ct. App. 2008). “Even if thiá Court finds an erroneous admission or exclusion of evidence, we will not reverse unless the error adversely affects a substantial right of a party.” Id.

¶ 19. Johnson raises an' argument that has previously been placed before this Court. The supreme court has held: “[Admitting out-of-court statements made to the police during the course of their investigations is permissible.” Gray v. State, 931 So.2d 627, 631 (¶ 14) (Miss. Ct. App. 2006) (citing Swindle v. State, 502 So.2d 652, 658 (Miss. 1987)). Further, this Court, in Anderson, aligned with the supreme court’s finding that “(i]t is elemental that a police officer may show that he has received a complaint, and what he did about the complaintt,] without going into the details of it ." Anderson, 1 So.3d at 914 (¶ 25) (quoting Swindle v. State, 502 So.2d 652, 658 (Miss. 1987)).

¶ 20. Here, we find that Chief Jackson’s testimony was not hearsay, and therefore, it was admissible. The trial court did not abuse its discretion when it allowed Chief Jackson to testify about the witness statements given to him during the course of his investigation. None of the statements were admitted to prove the truth of the matter asserted but rather to explain the next steps in Chief Jackson’s investigation. “Further, even if [Chief Jackson’s] recitation of the witnesses’ statements were considered to be testimonial, any error by the trial court in admitting the statements would be harmless” because'the testimony was given to detail the steps taken to develop Johnson as a suspect. Id. at 915 (¶ 27).

¶ 21. THE JUDGMENT OF THE CLAIBORNE COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, STATUTORY RAPE, AND SENTENCE OF LIFE; AND COUNT II, STATUTORY RAPE, AND SENTENCE OF FIFTEEN YEARS, WITH THE SENTENCES TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . To protect the minors' privacy, we have substituted initials in place of their names.

      . Darden had a child with Kent Hill, whose brother is Joe Hill. Joe Hill’s daughter, Kiwana Hill, was Johnson’s girlfriend and the mother of his child.


author: IRVING, P.J.,

text:
    Amanda PELLEGRIN, Appellant v. Kirk John PELLEGRIN, Appellee
    NO. 2015-CA-00962-COA
    Court of Appeals of Mississippi.
    08/01/2017

      ATTORNEY FOR APPELLANT: ELLIOT G. MESTAYER
    ATTORNEY FOR APPELLEE: CALVIN D. TAYLOR
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ. ■
   IRVING, P.J.,

FOR THE COURT:

¶ 1. The Chancery Court' of Jackson County granted Kirk Pellegrin and Amanda Pellegrin a divorce and ultimately awarded physical custody of the parties’ minor children to Kirk. Amanda appeals, arguing that the chancery court erred in two respects: in its decision awarding physical custody of the parties’ minor children to Kirk and in its failure to hold Kirk in civil contempt for his failure to comply with certain interim temporary orders of the court.

¶2. Finding error, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 3. Kirk and Amanda were married on September 11, 2004. They had two children, Kayden and Kenadie, before they separated in September 2009. The following month, Kirk fíled a complaint for divorce, alleging that he was entitled to a divorce from Amanda on the statutory ground of habitual cruel and inhuman treatment or, alternatively, on the ground of irreconcilable differences.

¶4. Approximately two months after Kirk fíléd for divorce, the chancery court entered a temporary order granting the parties joint custody, “with physical custody being vested [in] Amanda.” This temporary order was set to be reviewed in January 2010. However, it apparently was not reviewed until March 24, 2010, because on that date, the chancellor entered an amended temporary order awarding joint custody to Kirk and Amanda, “with physical custody being vested with [Amanda].” On April 8-, 2010, the chancellor entered a third temporary order, again granting joint custody of the children to Kirk and Amanda, with “physical custody being vested with Amanda.” On May 27, 2010, the chancellor again entered a temporary order addressing custody, but this time the order was entitled “Agreed Temporary Visitation Order” and addressed custody, as well as visitation, although custody remained unchanged. On July 6, 2010, the chancellor yet again entered an order awarding joint custody of the minor children to Kirk and Amanda, “with physical custody being vested with [Amanda].”

¶ 5. On January 27, 2011, Kirk filed an amended complaint for an emergency hearing in which he alleged that Amanda had become pregnant with another man’s child. He also alleged that Amanda had been admitted to the hospital because of her multiple sclerosis and, instead of contacting him, had “allowed her brother to watch the children.” Kirk sought an order relieving him of the responsibility of paying Amanda’s medical expenses associated with, and stemming from, the soon-to-be birth of Amanda’s child that was fathered by another man. He also sought a change of custody of the minor children based on Amanda’s alleged incapacity to care for the children because of her illness with multiple sclerosis,

¶ 6. On February 10, 2011, Kirk filed an amended complaint for divorce in which he sought, among other things, custody of the minor children and a divorce on the grounds of habitual cruel and inhuman treatment and adultery or, in the alternative, on the ground of irreconcilable differences. On December 20, 2011, Amanda filed a counterclaim for divorce on the ground of habitual cruel and inhuman treatment or, in the alternative, on the ground of irreconcilable differences. She requested that she be granted custody of the parties’ minor children. On January 31, 2012, Kirk filed a complaint for modification in which he again asked for custody of the parties’ minor children. He alleged that Amanda continued to have multiple health problems and could not take care of herself or the minor children. Amanda responded that she lived with her mother, that her mother assisted her as needed, and that the children did not “have to be moved from place to place, further disrupting their lives.”

¶ 7. On February 9, 2012, Amanda filed a motion for contempt, alleging that Kirk had not paid certain medical expenses of the minor children as had been ordered in several of the interim temporary orders. On the following day, the chancellor granted Kirk a divorce on the ground of adultery, based on the fact that Amanda had given birth to a child fathered by another man. However, the court did not decide the issue of custody of the minor children. More than a year later, Kirk filed a motion for modification, contempt, and change of custody. In his complaint, Kirk alleged that a material change in circumstances had occurred in that Amanda was not stable, had willfully violated all court orders and had continued to alienate the children from him.

¶ 8. On November 22, 2013, pursuant to motion filed by Kirk, the court appointed a guardian ad litem to, among other things, “investigate, make recommendations to the Court and enter reports, and act in all respects to protect the best interests of the minor children.” On January 22, 2014, the guardian ad litem made her initial report in which she made the following recommendation:

As the guardian ad litem, it is apparent to me through my investigation and research that both parents would provide a loving, nurturing home to the children. Both parents expressed a willingness and desire to have primary custody of the children. The recommendation of the guardian ad litem is that the best interest of the children would be best served by awarding joint physical and legal custody to Kirk Pellegrin and Amanda Pel-legrin.

On August 14, 2014, in an updated report, the guardian ad litem stated:

This was a particularly difficult case to decide as both parents have expressed a strong willingness and desire to have custody of the children. The recommendation of the guardian ad litem is the best interests of the children would be best served by awarding joint legal custody, physical custody to Kirk Pellegrin, and extensive visitation to Amanda Pel-legrin.

¶ 9. On January 5, 2015, without elaborating or otherwise explaining his decision, the chancellor entered an order, finding “that the parties are hereby vested with joint legal custody of the minor children and Kirk John Pellegrin is hereby vested [with] physical custody of the minor children.” Amanda timely fíled a motion for reconsideration. In her motion, she asserted:

The movant would show that the decision was. against the weight of the evidence on the issue of custody since the movant has had continuity of care, available, available full time, her health has improved, and is an active participant in the care of the minors. Further, the guardian ad litem did not complete her investigation as to why the children are so afraid of their father.

In the prayer of her motion, Amanda requested that “findings of fact and conclusions of law be prepared concerning custody” and an investigation be made into why the children feared their father.

¶ 10. On March 3, 2015, the chancellor entered a order modifying the January 5, 2015 judgment pursuant to Amanda’s motion for reconsideration or relief from judgment. In paragraph IV of the order, the chancellor stated, “The [cjourt agreed that it will provide a [findings of [f]act and [cjonclusions of [l]aw[,] preserving his ruling on the issue of modifying custody by applying the custody provisions.” However, the record does not reflect that the chancellor ever entered findings of fact and conclusions of law.

¶ 11. As appropriate, additional facts will be related during the discussion.

DISCUSSION

I. Child Custody

¶ 12. The standard of review for child-custody cases was succinctly addressed by this Court in Funderburk v. Funderburk as follows:

We may not always agree with a chancellor’s decision as to whether the best interests of a child have been met, especially when we must review that decision by reading volumes of documents rather than through personal interaction with the parties before us. However, in custody cases, we are bound by the limits of our standard of review and may reverse only when the decision of the trial court was manifestly wrong, clearly erroneous, or an erroneous legal standard was employed.

Funderburk v. Funderburk, 909 So.2d 1241, 1243 (¶¶ 4-5) (Miss. Ct. App. 2005).

¶ 13. The Albright factors are the framework the chancellor uses to make a determination regarding child custody. “While the Albright factors are extremely helpful in navigating what is usually a labyrinth of interests and emotions, they are certainly not the equivalent of a mathematical formula. Determining custody of a child is not an exact science.” Lee v. Lee, 798 So.2d 1284, 1288 (¶ 15) (Miss. 2001). It is necessary that we briefly revisit the chancellor’s analysis of each Albright factor to see if he committed manifest error. “[T]he chancellor has the ultimate discretion to weigh the evidence the way he sees fit. The credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence, ... are primarily for the chancellor as the trier of facts.” Johnson v. Gray, 859 So.2d 1006, 1013-14 (¶ 36) (Miss. 2003).

¶ 14. As noted, the chancellor ' did not discuss the Albright factors in’ his judgment. But perhaps more importantly, he did not even mention the guardian ad li-tem’s report ' or recommendation. The chancellor simply found that Kirk was “vested” with physical custody. So the only discussion of the Albright factors was done by the guardian ad litem, who had been practicing law only one and one-half years. Although the guardian ad litem discussed each of the Albright factors, she did not determine which party was favored by three of the factors.

¶ 15. As might be expected, the parties differ as to whether the guardian ad litem was correct in her analysis of each of 'the those factors. Below, we set forth the guardian ad litem’s determination as to each factor, and briefly address the parties’ argument regarding each factor.

A. Age, Health, and Sew of the Children

¶ 16. The guardian ad litem did not specify the party that this factor favored. Amanda argues that the young age of the children obviously favors the mother; but the sex of the children is neutral since one child is a boy and the other is a girl. With respect to health, she argues. that, this factor favors the mother because of the children’s attention deficit • hyperactivity disorder (ADHD) problems - and mental-health issues. She alleges that Kirk does not believe the children suffer from ADHD issues despite the fact that the children have been diagnosed with ADHD and are doing well. while taking the medication. She notes that, in response to a question about the children taking ADHD medication, he testified: “I don’t see any reason that they should be on it.” Amanda also asserts that , she is a certified emergency medical technician and is better qualified to take care of the-' children’s health-care needs. She further asserts that the guardian ad litem failed' to realize the importance of her training.

¶ 17. Kirk responds that while both children have been diagnosed with ADHD, no testimony was presented to show that Amanda’s training would render her a better caregiver. Also, because the children were seven and eight years old at the time of trial, he argues that the tender-years doctrine does not apply. Finally, because one child is male 'and one child is female, this factor would be neutral.'

B. Continuity of Care Prior to Separation

¶ 18. The guardian ad litem did not specify. the party that this factor favored. Amanda notes that she quit her job at the beginning of the marriage when she became pregnant with'the couple’s youngest child. She further contends that based on Kirk’s schedule, he basically only saw the children on days he did not have t‘o work, while she took care of the children five days a week. In addition, she argues that between- the initiation of the divorce in 2009 and the final custody determination in 2015, she was the children’s primary caregiver,

¶ 1,9. 'Kirk responds that with his unorthodox work schedule, his time and care with the two children fluctuated depending on his schedule. However, he testified that despite his work schedule, he still spent a considerable amount of time with the children and was the primary caregiver. Kirk argues that, during the marriage, Amanda often opted to stay in bed due to medical reasons, causing her to be too sick to cook, to provide transportation to and from school for the children, and to wash clothes. She was also diagnosed with multiple sclerosis (MS) and is now legally disabled, which he argues will affect her ability to care for the children.

C. Parenting Skills and Willingness and Capacity to Provide Primary Child Care

¶20. The guardian ad litem treated “parenting skills” as a separate factor and then found that it favored Kirk. However, the factor is: “parenting skills and willingness and capacity to provide primary child care.” The guardian ad litem created a new factor that she called: “Capacity to Provide Primary Child Care and Employment Responsibilities.” She then found that both parents were equally capable of providing primary child care, that Amanda was unemployed, and that Amanda was always available to care for the children.

¶ 21. Amanda argues that, at times, Kirk has created a hazardous environment for the children by leaving his service revolver lying on the floor as well as lawn mower oil within the reach of the children. She also alleges that he refused to pay one-half of the children’s medical bills. He also introduced the children to his girlfriend soon after the separation. Amanda submits that the guardian ad litem reports and testimony should be disregarded, as the guardian ad litem did not review all of the evidence as directed in the chancellor’s order of appointment. Amanda concedes that no guardian ad litem report will be perfect, i.e., mentioning each and every material fact. However, she argues that the omissions in the report are staggering and, therefore, the guardian ad litem’s recommendation should not be considered. She contends her MS in no way prevents her from properly caring for the children. She further contends that since she is on disability she can provide care every day and, in the event that she is not feeling well, her mother is available to provide assistance. She notes that Kirk had to be court-ordered not to physically discipline the children, as he left welts on the children’s backsides. Finally, she asserts that, during the time that she was given temporary custody, she was able to hone her parenting skills, making her a better fit for physical custody than Kirk, as he spent considerably less time with the children during that period.

¶22. Kirk contends that both parties presented evidence of good parenting skills, and both parties criticized the parenting skills of the other. Kirk admits that his schedule sometimes limits his time with his children, but he argues that his wife, Emma, or his parents are able to provide care and have a close bond with the children. He also points to the testimony of the guardian ad litem regarding his willingness to discipline the children, turn in the children’s homework, and provide financially for the children.

D. Employment of the Parent and Responsibilities of that Employment

¶ 23. The guardian ad litem did not address this factor as a separate factor. As discussed earlier, the guardian ad litem created a new factor that she called: “Capacity to Provide Primary Child Care and Employment Responsibilities” and simply found that both parents were equally capable of providing primary child care, that Amanda was unemployed, and that she was always available to care for the children. She did not address Kirk’s employment and the responsibilities of that employment as it might impact his ability to be a suitable parent to have physical custody of the children.

¶ 24. Since Amanda has no employment, she argues this factor weighs heavily in her favor. She further argues that Kirk’s work schedule constantly changes, forcing accommodations to be made. She alleges that there were a lot of changes made to the visitation orders during the course of the proceedings in the trial court because Kirk’s work schedule changed considerably. Being a policeman, Kirk does not have a regular 8:00-5:00 job. In fact, his schedule often changes due to such shift work; however, his change to a detective position has made his schedule more suitable for caring for the children. She notes that even though he has since adopted a more stable schedule, he still would not be available as she to care for the children. She also questions whether or not the guardian ad litem understood this factor.

¶ 25. Despite his admittedly non-conventional schedule, Kirk argues that he is still better able than Amanda to care for the children because, while she may be unemployed, she often depends on her mother to help care for the children. It is interesting that Kirk would make this argument about Amanda while admitting that sometimes his wife Emma helps care for the children because of his work schedule.

E.Physical and Mental Health and Age of the Parents

¶ 26. The guardian ad litem did not rate this factor in either parent’s favor. She noted that both parties were in their thirties and in good mental health. While acknowledging that she has MS, Amanda points out that she is still able to take care of the children. Amanda contends that due to the progressive nature of her illness, she has a limited amount of time to enjoy her children. Therefore, she submits that this factor favors her.

¶27. Being a policeman, Kirk argues that he is in good mental and physical health. While Amanda is in good mental health, she does suffer from MS, which prevents her from being as active as she could be. However, despite suffering from MS, he concedes that Amanda’s neurologist indicted that at this time she is still able to care for the children. In response to her assertion that she has “limited time” to enjoy the children, Kirk asserts that no evidence was presented at trial to conclude that her life was in jeopardy. He further points out that if her health were degenerating at such a rate, this factor would clearly not be in her favor.

F.Emotional Ties Between Parent and Child

¶ 28. The guardian ad litem found that this factor weighs equally in both parties’ favor. Amanda alleges that the children unequivocally indicated they wanted to live with her. She states that this should come as no surprise, because she had been their caregiver almost their entire life, as the divorce proceedings lasted almost as long as the marriage, and that during the extended proceedings she had custody of the children. In contrast, she argues that Kirk testified that the children are alienated from him. She also asserts that their son and Kirk do not get along, and for these reasons, this factor favors her.

¶ 29. Kirk asserts that both parents presented evidence with respect to their bond and relationship with the children, and witnesses testified with respect to each parent’s good relationship. The guardian ad litem’s report states that the children were very attached to their mother. However, in the guardian ad litem’s testimony, she agreed that' the children were also attached to the father.

G.Moral Fitness of the Parents

¶ 30. The guardian ad litem found that this factor favored neither party, as both Amanda and Kirk had extramarital affairs during the marriage as well as after the separation but prior to the divorce. There was no testimony that Amanda had exposed the children to her paramour. However, Kirk did expose the children to his girlfriend and, in fact, lived with her for a while prior to their marriage. During that time, he continued to exercise his visitation. As a result, Amanda contends this factor favors her.

¶81. In response, Kirk, citing the evidence presented by the guardian ad litem, states that both parents attend church with their children and teach the children the importance of morals. As such, this factor is neutral.

H. The Home, School, and Community Record of the Child

¶ 32. The guardian ad litem found that this factor favored Kirk. Amanda states that neither child had any significant home or community record; overall, however, the children did well in school for the six years she had custody of them. The one exception was that their daughter was held back in kindergarten. Amanda notes that during that year, she had to request an order preventing Kirk from using physical, discipline.on the children, which may have caused some of the issues their daughter was having in school. She also argues that the guardian ad litem did not thoroughly investigate Kirk’s girlfriend, especially with respect to the information she received from the children’s school because his girlfriend worked there.

¶ 33. At the.time of the trial, both, children had been in Amanda’s custody for approximately six years. Kirk points o.ut that the school officials did not believe that the children were getting the help they needed from Amanda. He asserts that the guardian ad litem interviewed their daughter’s first-grade teacher, school principal, and guidance counselor to verify the children’s behavior in school. ' .

I. Preference of the Child

¶ 34. Because of the children’s ages, both-parties agree that this, factor is not applicable. ' ...

J.Stability of Home Environment and Employment-of Each Parent

¶ 35, The guardian ad litem determined that this factor slightly favored Kirk, although she found that both parties provided' a stable home environment. More specifically, she found that “the atmosphere at Kirk’s [home] was very structured”- and that it was “less structured” at' Amanda’s. She noted that the children did their homework before going out to play when they were at Kirk’s home. She noted that during the two visits that she made to Kirk’s home, it was clean and well kept. She stated that Amanda’s home “was not as clean, but not to the extent that it would be hazardous for the children to live there.” She pointed out that Amanda had several cats and a dog and that she “was somewhat concerned as to the number of cats,” but she acknowledged that Amanda informed her that Amanda regularly cleaned up after the cats;

¶ 36. Amanda argues that the guardian ad litem erroneously considered Amanda’s health when looking at several- of the Al-bright factors, resulting in unfair weight being assigned to this factor, She further argues that the guardian ad litem did not make a proper determination with respect to which party could provide a stable home-environment, and that the guardian ad li-tem did not understand this factor, resulting, in an incorrect application. In addition, she alleges that the court did not provide a summary of the guardian ad litem’s recommendations in the opinion, which was error.

¶ 37. Both parties presented evidence that the children had a good relationship with both their maternal and paternal extended families, and Kirk submits that the evidence showed that both parties appeared to have dedicated themselves to their children’s well-being.. He acknowledges that the transfer of custody to him placed the children in a new environment, but points out that the children were not totally new to the environment because they had gained some familiarity as a result of the visitation in his home during the parties’ separation. He further argues that the guardian ad litem was correct in concluding that this factor favors him, because he provides a more stable home environment than does Amanda. To Amanda’s argument—that a summary of the guardian ad litem’s report was not included in the order—Kirk responds that such a summary is only necessary in cases where a guardian ad litem is mandatory, and that the appointment here was not mandatory because of-the absence of allegations of abuse or neglect.

¶ 38. As discussed earlier, Amanda timely requested that the chancellor make findings of fact on the custody determination, and the chancellor stated that he would “provide a [findings of [f]act and [c]onelusions of [l]aw preserving his ruling on the issue of modifying custody by applying the custody provisions.” Despite this statement, the chancellor never provided any explanation supporting his judgment. While Amanda has not specifically framed her issue on appeal as the failure of the chancellor to make the required findings of fact, we find her issue- that the chancellor erred in his custody determination is broad enough to cover the issue of the chancellor’s failure to make the required findings of fact since she specifically requested in her post-trial motion that he make them regarding his custody determination.

¶ 39. Rule 52(a) of the Mississippi Rules of Civil Procedure provides in pertinent part: “In all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit[,] ... find the facts specially and state separately its conclusions of law thereon.” We find that pursuant to this rule, Amanda’s post-trial request that the chancellor make findings of fact with respect to the custody issue was sufficient to require the chancellor to make such findings. Also, “the supreme court has determined that cases involving a' determination of child custody ... require specific findings.” Parra v. Parra, 65 So.3d 872, 876 (¶ 10) (Miss. Ct. App. 2011). “Our job as a reviewing court is only to evaluate whether the chancellor’s decision was manifestly erroneous based on a proper analysis of each of the applicable Albright factors. This task becomes futile when chancellors fail to consider and discuss each factor when rendering decisions.” Id.

¶ 40. Therefore, in light of Rule 52(a), and the directive from our supreme court that déterminations' of child custody require specific findings, and' the failure of the chancellor to adopt, incorporate, or even discuss the guardian at litem’s recommendations, we reverse and remand this issue to the chancery court.

II. Civil Contempt

¶ 41. During the pendency of the divorce, the special master ordered Kirk to carry existing medical insurance' on the children and Amanda. The special rhaster further found that all medical expenses of the children not covered by insurance should be equally split between the parties. This temporary order did not require that bills be submitted or paid within a certain time frame. Amanda asserts that Kirk did hot make the payments as ordered; thus, he should be subject to contempt and liable for attorney’s fees.

¶ 42. Kirk responds that the decision to hold someone in contempt is determined upon the facts of each case and is a matter for the trier of fact. Strain v. Strain, 847 So.2d 276, 278 (¶ 4) (Miss. Ct. App. 2003) (citing Milam v. Milam, 509 So.2d 864, 866 (Miss. 1987)). In order for a citation of contempt to be proper, the con-temnor has to “willfully and deliberately ignoref ] the order of the court.” Id. (quoting Bredemeier v. Jackson, 689 So.2d 770, 777 (Miss. 1997)). The factual findings of the chancellor in civil contempt cases are affirmed unless manifest error is present. Id. (citing Purvis v. Purvis, 657 So.2d 794, 797 (Miss. 1994)). Lastly, matters involving contempt will not be reversed when the chancellor’s findings are supported by substantial credible evidence. Id. While Kirk admits he has no proof that he paid the bills, he points out that the order by the court did not require that he pay the bills according to a certain time frame.

¶ 43. This Court has held that such contempt matters are committed to the substantial discretion of the trial court and that the chancellor is “infinitely more competent to decide the matter than [this Court].” Varner v. Varner, 666 So.2d 493, 496 (Miss. 1995). In Durr v. Durr, 912 So.2d 1033, 1039 (¶ 21) (Miss. Ct. App. 2005),

[t]he chancellor found [James] Durr in contempt for failing to abide by the judgment of divorce which provided that he pay one-half of all bills for medical treatment of the minor child which are not paid by the provisions of a policy of medical and hospitalization insurance .... The chancellor further found that Durr was in arrears for medical costs in the amount of $4,102.39. Although Durr claim[ed] that he paid all medical, optical, and drug bills submitted to him by [his ex-wife, Beverly] Hale, during the hearing he could only provide proof that he had paid one bill. As a result, we [found] that the chancellor did not err in finding Durr in contempt for failing to pay his share of [his son James] Waid’s medical expenses.

Unlike Durr, the chancellor in this case found that “insufficient evidence was provided by Amanda for the [court] to hold Kirk in contempt.” (Emphasis added). As such, based on our deferential standard of review, we cannot say that the chancellor abused his discretion when he failed to find Kirk in contempt, although we might have found differently had we been the fact-finder.

¶44. Amanda’s final argument is that the chancery court erred in not holding Kirk in contempt for exposing the children to his then girlfriend, in violation of the provision of the first temporary order, which prohibited the parties from exposing their children “to any person [with whom] they may be romantically involved. Further, neither party shall have overnight guests of opposite sex not related by blood or marriage.” Amanda alleges that based on Kirk’s testimony, he violated this provision of the temporary order.

¶ 45. In response, Kirk argues that there was no evidence to prove that he “willfully and deliberately ignored the order of the court.” He further argues that in Durr, the appellant contended that the chancellor erred in failing to find the appellee in contempt of a visitation provision. Id. In that case, the chancellor dismissed the claim of contempt, and this Court declined to disturb the chancellor’s exercise of discretion. Id. at 1040 (¶ 23). Here, during Kirk’s testimony, he did admit that the children met Emma, but he alleges that it was only with the consent of Amanda.

¶ 46. Based on our review of the record, it does not appear that the issue of contempt based on Kirk having exposed the children to his then girlfriend was presented to the chancellor for a decision. The final judgment on the remaining issues indicates that the parties stipulated to all of the remaining issues that had not been decided by the chancellor during the protracted litigation that spanned six years. The issue of contempt related to Kirk’s alleged failure to pay certain medical expenses. Therefore, we decline to address this aspect of the contempt issue.

¶ 47. In summary, we find that the chancellor did not undergird his custody determination with findings of fact as required by our jurisprudence and by our rules when specifically requested by a party. We acknowledge that in the final judgment on the remaining issues that the chancellor issued on May 22, 2015, he mentioned that the January 5, 2015 judgment, in which he granted custody of the minor children to Kirk, was based on the recommendation of the guardian ad litem. However, the chancellor did not discuss the findings of the guardian ad litem. Of particular interest is the fact that the guardian ad litem’s recommendation in her initial report was that the parties receive joint custody, but in her updated report, the recommendation was that physical custody of the children should be awarded to Kirk. It appears that the only thing that changed between the guardian ad litem’s initial report and her updated report was that Kirk had married his girlfriend and finally had a house of his own. The record reflects that during the first five years of the proceeding while Amanda had temporary custody of the children, Kirk was living with either his girlfriend or his parents.

¶ 48. For the reasons discussed, we remand the issue of custody to the chancery court for specific findings with respect to the Albright factors. Upon application of those factors, the court is free to change the award of custody previously made if it determines that would be in the best interest of the children, although a new hearing is not required.

¶ 49. REVERSED AND REMANDED.

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

      . The guardian ad litem had been practicing law only one and a half years.

      . In Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983), the Mississippi Supreme Court established a ten-factor test to assist Mississippi's chancery courts in making child-custody determinations.

      . Amanda’s overarching argument is that the chancellor was -manifestly in error in making certain findings which were not supported by substantial evidence, as well as failing to make findings which were supported by the evidence.


author: WESTBROOKS, J.,

text:
    TAYLOR MADE SMILES, PLLC, Appellant v. FRANKLIN COLLECTION SERVICE, INC., Appellee
    NO. 2016-CA-00667-COA
    Court of Appeals of Mississippi.
    08/08/2017

      MARK NOLAN HALBERT ’ STEPHEN JOSEPH CRAMBLITT, JR., ATTORNEYS FOR APPELLANT
    MARTHA BOST STEGALL, ATTORNEY FOR APPELLEE
    BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.
   WESTBROOKS, J.,

FOR THE COURT:

¶ 1. This appeal arises from the collection of a debt. Franklin Collection Service Inc. (“Franklin”) was hired by Taylor Made Smiles PLLC (“Taylor Made”) to collect on an outstanding patient account held by Taylor Made. Two payments were made on the patient’s account but were returned. Before confirming' the receipt of payment, Franklin submitted payment to Taylor Made. When Franklin • discovered that the payment was returned, Franklin requested that Taylor .Made return the account payment that was mistakenly made. Taylor Made refused to return the payment, and Franklin sued Taylor Made for breach of contract and unjust enrichment in the Lee County County Court. The county court ordered Taylor Made to return the account payment to Franklin plus eight percent interest. Taylor Made appealed the verdict to the Lee County Circuit Court, which affirmed the order of the county court. Taylor Made now appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Taylor Made, a dental-service -provider, hired Franklin to perform collection services on Taylor Made’s delinquent patient accounts. Taylor Made and Franklin’s contract for collection services provided that Franklin would collect certain debts in exchange for the retention of thirty-five percent of the debtors’ payments. One of the delinquent accounts assigned to Franklin for collection concerned patient “C.T.” C.T. owed Taylor Made $6,900. On March 15, 2008, C.T. paid Franklin a check for $500. According to the contract, the $500 payment would have resulted in a payment of $325 to Taylor Made, after Franklin retained thirty-five percent of the payment for its collection services. However, no payment was made to Taylor Made for its share of the $500.

¶ 3. On March 25, 2008, the $500 ¿heck was returned for insufficient funds. On March 31, 2008, C.T. authorized Franklin to debit her bank account in the amount of $6,315. On April 8, 2008, the payment was rejected by the bank. On April 10, 2008, Franklin sent a check to Taylor Made for $4,104.75, representing the $6,315 less Franklin’s thirty-five percent collection fee. Franklin’s documentation accompanying the check advised Taylor Made that $6,315 was collected from the debtor. Taylor Made accepted the payment of $4,104.75, without knowledge that the payment had been rejected a few days prior.

¶ 4. After Franklin learned that the payment had been rejected by the bank, it notified Taylor Made that it would be filing suit against C.T. Franklin also demanded that the payment be returned, because it was mistakenly made. Taylor Made refused to return the amount paid by Franklin, and advised Franklin that its remedy was against C.T. On November 14, 2008, Franklin sued C.T. in court and obtained a judgment against C.T. However, collection efforts were fruitless.

¶5. On December 21, 2010, Franklin filed a lawsuit against Taylor-Made in the county court. Franklin contended that the payment made to Taylor Made was due to a mistake of fact. Franklin further asserted that Taylor Made’s refusal to return the $4,104.75 payment constituted a breach of contract, amounting to unjust enrichment. Taylor Made asserted that Franklin could not substantiate a breach-of-contract claim, because the contract did not address the issue. Taylor Made also asserted that the equitable remedies sought by Franklin under a “mistake in fact” were not applicable to Franklin’s case. On July 1, 2013, the county court issued its ruling in favor of Franklin in the amount of $4,104.75, plus post-judgment interests and court costs.

¶ 6. Taylor Made filed a motion for reconsideration, which the county court denied. Thereafter, Taylor Made filed its notice of appeal in the circuit court. On February 29, 2016, the circuit court issued its opinion affirming the judgment of the county court. In its opinion, the circuit court surmised that since Franklin never collected payment from C.T., no collection occurred. The circuit court found that since collection did not occur, Franklin was not under any obligation to remit payment to Taylor Made. As a result, the circuit court affirmed the ruling of the county court. Taylor Made now appeals the decision of the circuit court, contending that there was no legal basis for the county-court and circuit-court decisions, and Taylor Made’s refusal to return the payment to Franklin was not a breach of contract. Taylor Made further asserts that the circuit court misconstrued its interpretation of the contract when the court found that equitable principles applied to a contract matter. Finding no error, we affirm the judgment of the circuit court.

STANDARD OF REVIEW

¶ 7. “A de novo standard of review is applied to questions of contract construction.” Epperson v. SOUTHBank, 93 So.3d 10, 16 (¶ 16) (Miss. 2012). “If a contract is not ambiguous, it must be enforced as written.” Id. at (¶ 17). “An instrument that is clear, definite, explicit, harmonious in all its provisions, and is free from ambiguity will be enforced.” Zumwalt v. Jones Cty. Bd. of Sup’rs, 19 So.3d 672, 685 (¶ 58) (Miss. 2009) (internal quotations marks omitted). “The mere fact that the parties disagree about the meaning of a provision of a contract does not make the contract ambiguous as a matter of law.” Epperson, 93 So.3d at 16-17 (¶ 18) (internal citations omitted).

¶ 8. Unjust enrichment is an equitable claim and is defined as:

Money paid to another by mistake of fact, although such mistake may have been caused by payor’s negligence, may be recovered from the person to whom it was paid, in an action for money had and received. The ground on which recovery is allowed is that one receiving money paid to him by mistake should not be allowed to enrich himself at the expense of the party who paid the money to him by retaining it, but in equity and good conscience should refund it. In order that this rule may apply, the party to whom the payment mistake was made must be left in the same situation after he refunds it as he would have been left had the payment to him not been made.

Willis v. Rehab Solutions PLLC, 82 So.3d 583, 588 (¶ 14) (Miss. 2012).

¶ 9. “The law is clear that unjust enrichment applies when one party has mistakenly paid another party.” Id. However, “[ujnjust enrichment applies in situations where no legal contract exists, and the person charged is in possession of money or property which, in good conscience and justice, he or she should not be permitted to retain, causing him or her to remit what was received.” Id.

DISCUSSION

I. Whether the circuit court erred by requiring Taylor Made to repay funds received from Franklin.

¶ 10. Taylor Made asserts that the county court’s and circuit court’s decisions were manifestly wrong because equitable principles cannot apply where there is an express and enforceable contract. The county court found that Franklin’s payment to Taylor Made was analogous to Milliken & Michaels Inc. v. Fred Netterville Lumber Co., 676 So.2d 266 (Miss. 1996). In Milliken, a collection company, Milliken & Michaels, was hired by Fred Netterville Lumber Co. to collect funds for delinquent accounts. Milliken was successful in its collection efforts and remitted two $5,000 payments to Netterville. However, the second payment was mistakenly made to Netterville, though the cheek clearly indicated that it was intended as a payment for another delinquent account. Milliken sought return of the second payment based on the theory of unjust enrichment. However, the Mississippi Supreme Court found that the theory of unjust enrichment was not clear-cut since Netter-ville was entitled to payments. Id. at 269. Nevertheless, the court found that the payment should have been returned since it was mistakenly made to Netterville. Id. The court held that the debtor had a right to choose which account to remit payment to, and it was clear that the payment was intended for another account. Id.

¶ 11. Here, the county court found that Milliken was the controlling standard in the case and ruled that both the law and equitable principles derived from Milliken weighed in Franklin’s favor. Therefore, the county court asserted that Taylor Made should have' l-eturned the payment to Franklin since it was mistakenly made. Though we find that Franklin mistakenly made the payment to Taylor Made, the Milliken case was not the controlling standard for this matter.

¶ 12. Milliken is distinguishable from this case because Taylor Made had no knowledge of Franklin’s mistake, and there was nothing to indicate that Franklin made a mistake at the time it remitted payment. Franklin remitted payment to Taylor Made under the belief that C.T. satisfied the debt obligations to Taylor Made, though the bank rejected C.T.’s payment a few days prior to Franklin tendering payment. Franklin filed suit under the theories of unjust enrichment and mistaken payment.

¶ 13. However, “[t]he law is clear that unjust enrichment applies when one party has mistakenly paid another party.” Willis, 82 So.3d at 588 (¶ 14). “Unjust enrichment applies in situations where no legal contract exists, and the person charged is in possession of money or property which, in good conscience and justice, he or she should not be permitted to retain, causing him or her to remit what was received.” Id. The Milliken decision does not apply to this matter since there was a contract controlling the matter, though the contract was silent as to the matter before the court.

¶ 14. The circuit court affirmed the county court’s decision on different grounds. The circuit court opined that Franklin mistakenly delivered a check representing a portion of collected proceeds that it never actually collected. However, the circuit court did not find that it was a mistaken payment. The circuit court found that since no collection had occurred, Franklin was under no contract or obligation to pay Taylor Made money it never collected. Taylor Made argues that the circuit court improperly modified or altered the contract in favor of Franklin by defining the collection of a debt. After careful review of the record, we agree that Taylor Made should have returned the mistaken payment to Franklin. Accordingly, we find no error.

II. Whether Taylor Made breached the contract by retaining funds mistakenly paid to it.

¶ 15. Taylor Made argues that it had no contractual duty to return the mistaken payment made by Franklin. Taylor Made asserts that'the four corners of the contract support its contention that it had no contractual duty to return any payment it received from Franklin. Taylor Made maintains that the form contract failed to define what amounts to “collected” debt or money received. As a result, Taylor Made contends that the contract is ambiguous, and the ambiguity should be construed in its favor. We disagree. “Silence on a subject does not create an ambiguity within a contract.” Facilities Inc. v. Rogers-Usry-Chevrolet Inc., 908 So.2d 107, 115 (¶ 20) (Miss. 2005) (quoting Lyon Dev. Co. v. Business Men’s Assur. Co. of Am., 76 F.3d 1118, 1124 (10th Cir. 1996)).

¶ 16. Franklin argues that since the contract does not address repayment of funds- that are ultimately dishonored by a bank, equitable principles should apply.. The four corners of the contract are silent as to the remittance of a mistaken payment that was eventually dishonored. Nevertheless, the absence of a contractual provision governing a dispute does not necessarily equate to ambiguity in favor, of the nondrafter. “Where a contract is silent as to one of its terms, the court is not bound to adopt a construction which is not compelled by the instrument and which no man in his right mind would have agreed to.” Tupelo Redev. Agency v. Abernathy, 913 So.2d 278, 284 (¶ 14) (Miss. 2005) (citing Frazier v. Ne. Miss. Shopping Ctr. Inc., 458 So.2d 1051, 1054 (Miss. 1984)).

¶ 17. In Tupelo Redevelopment Agency an urban-renewal agency, TRA, filed condemnation suits against landowners, which resulted in settlement agreements providing that the purchase price for each tract of land would be determined by appraisal. The first appraisal valued properties at $925,000, as a result of accounting for TRA’s improvements to the properties surrounding the condemned parcels. TRA disputed the first apprisal and demanded' that a subsequent appraisal be made, excluding improvements to surrounding lands. The landowners filed a motion to enforce, seeking to bind the agency to the settlement' agreement based upon the first appraisal. The trial court denied that motion, as well as the agency’s motion to enforce the second appraisal, finding that the landowners should not have expected the fair market value of the properties to include the value of TRA’s improvements. As a result, the trial court ordered a third appraisal. The Mississippi Supreme Court affirmed that decision, finding that there was no indication that TRA would ever have expressly agreed to a contract that provided the value of the subject property would include the valuation of TRA’s improvements. Id.

¶ 18. Though ambiguity in contract inures to the benefit of the nondrafter, this contract is not ambiguous, or confusing, as to the terms of remittance. It is simply silent and does not address the return of a mistaken payment. If Franklin had anticipated the circumstances that were the subject of its cause of action, it would have never agreed to the nonreturn of a mistaken payment that it never actually collected. Finding no error, we affirm the decision of the circuit court.

¶ 19. AFFIRMED.

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