author: COOKS, Judge.

text:
    Elliott A. MISTICH, Jr., et al. v. Diedra R. WEEKS, et al. Judith Langlinais Mistich v. Louisiana Farm Bureau and State Farm Insurance.
    Nos. 09-517, 09-518.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.

      George Pivach, II, Mark A. Pivach, Gregory P. Nolan, Ellen Pivach Dunbar, Belle Chasse, LA, for Plaintiffs/Appellants, Elliott Mistich, Jr., Jamie Mistich Berger-on, Estate of Elliott Mistich, Sr.
    Charles R. Sonnier, Abbeville, LA, for Plaintiffs/Appellants, Judith L. Mistich, Marie M. Langlinais, Stephen and Monique Broussard.
    Edward O. Taulbee, IV, Max Michael Menard, Taulbee & Associates, L.L.C., Lafayette, LA, for Defendants/Appellees, Farm Bureau Casualty Ins. Co. and Farm Bureau Mutual Ins. Co.
    Court composed of ULYSSES G. THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   COOKS, Judge.

| T Plaintiffs appeal the judgment of the trial court granting the Defendants’ Motion for Summary Judgment on the limited issue of coverage. For the reasons that follow, we find summary judgment was inappropriate, and we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On May 2, 2004, Elliott Mistich, Sr. was driving a 2002 BMW 530 west on Louisiana Highway 92 in Youngsville. His mother-in-law, Marie Langlinais, was seated in the front passenger seat. Directly behind Ms. Langlinais was Judith Mistich, Elliott’s wife. Judith Mistich’s two grandchildren, Timothy and Haley Broussard, were also in the rear passenger seats.

At that time, Diedra Weeks, was driving her 1999 Honda Accord east on Hwy. 92, which at that location was a two-lane roadway with one lane running east and one lane running west. Ms. Weeks’ vehicle crossed the center line, entered the westbound lane, and collided head-on with the BMW driven by Mistich.

As a result of the accident, Elliott Mis-tich suffered fatal injuries. The other passengers also suffered varying degrees of injury. The following lawsuits were instituted after the accident:

1. Judith Mistich filed suit for her own injuries and the wrongful death of her husband.
2. Marie Langlinais filed suit for her personal injuries.
3. Steven and Monique Broussard, the parents of the two minor children, Haley and Timothy, filed suit on behalf of their children for their injuries.
4. Elliott Mistich, Jr. and Jamie Ber-geron Mistich filed suit for the wrongful death of their father.

Named as defendants in the lawsuits were Diedra Weeks and her insurer, U.S. Agencies Casualty Insurance Company; Louisiana Farm Bureau Casualty Insurance Company and Louisiana Farm Bureau Mutual Insurance Company, who issued two |2policies of insurance to the Mistichs; Gemini Insurance Company, who issued a policy of insurance on the BMW 530 to the owner of the vehicle, Tobias, Inc.; and State Farm Mutual Automobile Insurance Company, who issued a policy of insurance covering a 1963 Cadillac antique vehicle owned by Elliott Mis-tich. The petition was later amended to add several agents who represented Farm Bureau in the procurement of the two Farm Bureau policies. The amended petition added the following paragraph:

In the event that said policy of insurance is determined not to provide coverage, Plaintiffs make the following additional allegations: At all times material and relevant hereto, Eric Robiehaux, Christine Laporte, Fran Fullerton, and R.J. Stoutes acted as agent(s) for Louisiana Farm Bureau, and as agent(s) failed to: (1) properly advise and direct the insureds, (2) properly follow the instructions/requests given by the insureds, (3) obtain the appropriate insurances for or on behalf of the insureds, Judith and/or Elliot Mistich, as intended.

The record revealed the following facts concerning the ownership of the BMW 530 and insurance coverage for the parties in question. The BMW 530 was owned by Tobias, Inc., a business that was owned by Judith Mistich. Tobias, Inc. obtained and made the payments on a policy of insurance for that vehicle from Gemini Insurance Company. Tobias rejected UM coverage on the Gemini policy. Judith Mistich testified the BMW was provided to her by Tobias as a “company car” for her use at any time and without any restrictions. Judith owned no other vehicles at this time.

Farm Bureau issued a comprehensive automobile liability policy, No. C707387, to Elliott and Judith Mistich. This policy did provide for UM coverage with limits of 300,000.00/500,000.00. The Mistichs also purchased from Farm Bureau a Commercial Umbrella Policy, No. UM806930, which provided additional coverage to them in the amount of $1,000,000.00.

At the time the two Farm Bureau polices were issued, the Mistichs had three ^vehicles available to them for use: The 2002 BMW 530, owned by Tobias, Inc.; a Ford 250 truck, owned by Elliott Mistich’s company, Jade Marine, and an antique 1963 Cadillac owned by Elliott Mistich. The 1963 Cadillac was covered by a policy of insurance issued by State Farm.

After discovery, Farm Bureau filed a Motion for Summary Judgment alleging neither policy issued by it provided coverage under the facts of this case. Specifically, Farm Bureau asserted there was no coverage under its comprehensive policy because the BMW was provided for the “regular use” of Judith Mistich by her employer, Tobias, Inc. In support of this argument, Farm Bureau referenced what it termed a “clear and unambiguous exclusion” contained in the policy pertaining to UM coverage, which read:

EXCLUSIONS
THIS POLICY DOES NOT APPLY:
(b) Under any of the coverages for automobiles owned or furnished for regular use of any member of the insured’s household, unless shown on the declaration;

Because the BMW was not specifically listed on the policy as an insured vehicle, Farm Bureau contended it was not a covered vehicle under the policy. Farm Bureau argued the purpose of this type of exclusionary clause is to exclude from coverage non-owned automobiles over which the insured has general authority of use. Secondly, Farm Bureau asserted there could be no coverage under its umbrella liability policy since coverage under the umbrella policy presupposed coverage under the primary policy.

Plaintiffs opposed summary judgment, arguing the Farm Bureau comprehensive policy was vague and ambiguous. Specifically they argued the phrase in the exclusionary clause “unless shown on the declaration” could just as likely refer to “members of the insured’s household” as to “automobiles.” Therefore, Plaintiffs |4contended the policy was ambiguous. Plaintiffs also argued Farm Bureau’s contention that an automobile must be specifically listed on the declarations page was “non-sensical and ambiguous” given the fact there was no space on the declarations page to list any automobiles. Plaintiffs further noted the declarations page on the comprehensive policy specifically referenced “UM hired/non-owned,” which indicated that the policy covered all hired and non-owned vehicles. Additionally, Plaintiffs maintain Farm Bureau and its agents were guilty of negligent representation when the policies were procured.

At the hearing on the motion for summary judgment, the trial court found Farm Bureau’s policy was clear, unambiguous, and had the standard “regular use” exclusion. The court determined there was no coverage under either Farm Bureau policy. In addressing Plaintiffs’ arguments as to what these polices actually covered, since there was no listed vehicle on the declarations page, the trial court stated people with company cars such as Judith Mistich often buy a comprehensive policy that does not have a listed vehicle to protect them if they are driving another party’s vehicle. The trial court concluded the Mistichs purchased the Farm Bureau policy to fill a hole in the Mistichs’ coverage if they were driving a rented or borrowed vehicle.

During the hearing on the motion for summary judgment, when it became clear the trial court was prepared to rule in Farm Bureau’s favor, counsel for Plaintiffs noted they had yet to take depositions concerning representations that might have been made to the Mistichs concerning what the comprehensive policy issued by Farm Bureau actually was intended to cover. The trial court noted that after discovery it could be possible “there are facts in there to establish that the agents and/or Farm Bureau should have had information to cause a different policy to be written.” When pressed by Plaintiffs to pretermit a decision until final discovery, the trial court stated | Bas follows:

THE COURT: Well, I don’t think anybody — Regardless of what happens, I don’t think anybody’s in a position to go to the Court of Appeals, because its not a final disposition of the claims against Farm Bureau. So I don’t think anybody would be in a position to do anything anyway.
MR. SONNIER: Well—
THE COURT: It’s a partial — I mean, I don’t — You don’t certify that as a final appealable judgment when it’s a partial judgment. So I don’t think anybody would be in a position to do that anyway.
So, to that extent, I’m going to grant the partial summary judgment. But, again, that does not dismiss Farm Bureau

Despite clearly setting forth that its conclusion on the limited issue of whether the language in the policy provided coverage did not make for a final, appealable judgment, the trial court then issued a judgment certifying the grant of partial summary judgment as a final, appealable judgment. Reasons for judgment provided, in pertinent part, as follows:

... there is no just reason for delaying the certification and appeal of this Court’s October 29, 2007 ruling against Farm Bureau’s Motion for Summary Judgment as Plaintiffs remaining claims against Farm Bureau and the other defendants involve different theories of liability, causes of action, and operative facts that will not affect this Court’s October 29, 2007 ruling. Plaintiffs’ claims against the other insurers involve determination of coverage under entirely different insurance policies and language from the policies at issue in Farm Bureau’s Motion for Summary Judgment. Further, allowing the appeal of this Court’s October 29, 2007 judgment to proceed at this juncture promotes judicial efficiency and economy.

Judgment was entered on December 29, 2008. certifying as final the bench ruling that granted the Motion for Summary Judgment filed by Farm Bureau. Plaintiffs now appeal, contending the trial court’s grant of summary judgment in favor of Farm Bureau was error.

ANALYSIS

Standard of Review

| fiWhen an appellate court reviews a district court judgment on a motion for summary judgment, it applies the de novo standard of review, “using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.”

Gray v. Am. Nat. Prop. & Cas. Co., 07-1670, p. 6 (La.2/26/08), 977 So.2d 839, 844 (quoting Supreme Serv. & Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638). “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. P. art. 966(B).

The burden of proof imposed upon a movant for a motion for summary judgment are set forth in the Louisiana Code of Civil Procedure:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

La.Code Civ. P. art. 966(C)(2). Summary judgment may not be rendered declaring lack of coverage unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion under which coverage could be afforded. Jessop v. City of Alexandria, 03-1500 (La.App. 3 Cir. 03/31/04), 871 So.2d 1140 citing Miller v. Superior Shipyard and Fabrication, Inc., 01-2907, p. 4 (La.App. 1 Cir. 08/20/03), 859 So.2d 159, 162.

After a review of the record we find the negligent representation claims alleged against Farm Bureau in this case are simply too intertwined with the question of 17coverage for summary judgment to have been rendered. This fact is demonstrated by the trial court’s need to make factual conclusions in rendering summary judgment on the coverage issue.

We point specifically to the trial court’s factual conclusion that the motivation for the purchase of the Farm Bureau policy was to fill a hole in the Mistichs’ coverage so, if they were driving another vehicle, they would be covered. Farm Bureau, as well, argued below, and to this court, that the policies were purchased simply to provide coverage for the limited times when the Mistichs: (1) rented a vehicle, (2) borrowed a vehicle, or (3) drove another person’s vehicle with permission.

Judith Mistich has, at all times, maintained the purpose of the Farm Bureau polices was to acquire UM coverage. Plaintiffs also contend the State Farm policy of insurance issued on the 1963 antique Cadillac provided coverage for the Mis-tichs when using a non-owned vehicle. Thus, the gap in coverage the trial court referenced as the motivation for the Mis-tichs’ purchase of the Farm Bureau polices may not have even existed. Were this true, it certainly would support the Mis-tichs’ argument that it is simply illogical to assume, if they were aware the Farm Bureau policies did not provide UM coverage, they would have purchased this otherwise useless policy. The deposition testimony in the record of Christine LaPorte, an agent for Farm Bureau, does little to resolve this disputed issue:

Q. You’ve been writing insurance for [Judith Mistich] for sometime.
A. Yes.
Q. And would you say that you were her primary Farm Bureau agent?
A. The last few years, yes, really.
IsQ. Christine, just for the purposes of the record, I want to be sure that your testimony is that when you met and your supervisor met at this umbrella meeting at the Mistiches’ home, that she didn’t inform you that she had no uninsured motorist coverage?
A. I do not remember that.
Q. You just don’t remember it?
A. No.
Q. Okay. Did you tell them, the Mis-tiches, at that meeting, that it was impossible for Tobias to insure them for the Tobias vehicle, anyway?
Mr. Taulbee: Objection to form.
Q. Did you instruct them that Tobias’ vehicle could not be insured?
A. I don’t recall that.
Q. Okay. You’re selling insurance. You’re there to sell insurance, to provide them with coverage for liability and cover some risks.
A. Correct.
Q. And your testimony in neither you nor your supervisor ever breached the subject of whether or not they had uninsured motorist coverage on any of their vehicles?
Mr. Taulbee: Objection to form.
Mr. Delaune: And objection to the form of the recitation of testimony. You can answer.
Q. You can answer the question.
A. No, I do not remember asking or them asking me for that.
Q. You know Judy to be a business woman and to conduct a pretty big, powerful business.
A. Yes, definitely.
Q. You know her to have a lot of insurance.
A. Yes.
Q. You know her to be very astute in terms of trying to be covered for all risks that she was involved in because she had purchased a bunch of policies from you?
1»A. Right.
Q. You find it strange that she had no uninsured motorist coverage?
A. I would think it would be under her Tobias policy with her commercial agent.
Q. But y’all never inquired about that?
A. No.

Despite the apparent confusion surrounding this question, and the Plaintiffs’ communicated desire to take further discovery on the negligent representation issue, the trial court made a conclusive determination as to the Mistichs intent in purchasing the Farm Bureau policy. Such a factual conclusion drawn by the trial court, which was a key component to its decision, is clearly inappropriate for summary judgment. The jurisprudence has consistently held “[e]ven though summary judgment is now favored, it is not a substitute for trial on the merits, and it has been found inappropriate for judicial determination of subjective facts, such as motive, intent, good faith, knowledge or malice that call for credibility evaluations and the weighing of the testimony.” (Emphasis ours.) S.J. v. Lafayette Parish School Bd., 06-2862, p. 5 (La.6/29/07), 959 So.2d 884, 887 (per curiam); see also Greer v. Dresser Indus., Inc., 98-0129 (La.App. 3 Cir.7/1/98), 715 So.2d 1235, writ denied, 98-2094 (La.11/6/98), 728 So.2d 867; Quinn v. RISO Investments, Inc., 03-903 (La.App. 4 Cir. 3/3/04), 869 So.2d 922; Oaks v. Dupuy, 32,070 (La.App. 2 Cir. 8/18/99), 740 So.2d 263; Douglass v. Alton Ochsner Med. Found., 97-25 (La.App 5 Cir. 5/28/97), 696 So.2d 136; Bilbo for Basnaw v. Shelter Ins. Co., 96-1476 (La.App. 1 Cir. 7/30/97), 698 So.2d 691, writ denied, 97-2198 (La.11/21/97), 703 So.2d 1312. Therefore, we are compelled to reverse the trial court’s grant of summary judgment and remand the case for a trial on the merits.

We note, in passing, that Plaintiffs’ arguments concerning the ambiguity of the exclusion in the policy are compelling. The exclusionary clause in the policy provided as follows:

EXCLUSIONS
THIS POLICY DOES NOT APPLY:
(b) Under any of the coverages for automobiles owned or furnished for regular use of any member of the insured’s household, unless shown on the declaration;

Plaintiffs argue it is ambiguous whether the phrase “unless shown on the declaration” refers to (1) “members of the insureds household” or (2) “automobile.” If Farm Bureau’s interpretation is accepted, that the phrase is unambiguous and refers to “automobiles,” the failure by Farm Bureau’s agents to list any automobiles on the declarations page means there would be no coverage whatsoever. Plaintiffs argue it is equally plausible the phrase “unless shown on the declaration” refers to “any member of the insureds household.” Plaintiffs point out an insured may not intend to cover all individuals (oftentimes minors) unless specifically listed on the declarations page. As we stated earlier, because the coverage question and negligent representation question are so intertwined, we find resolution of Plaintiffs’ arguments on the ambiguity of the exclusionary clause in the Farm Bureau policy is not ripe for summary determination.

InDECREE

Finding the trial court made inappropriate factual conclusions in reaching the issue of coverage, we reverse the trial court’s grant of summary judgment and remand the case for further proceedings consistent with this opinion. Costs of this appeal are assessed against appellees, Louisiana Farm Bureau Casualty Insurance Company and Louisiana Farm Bureau Mutual Insurance Company.

REVERSED AND REMANDED.

      . The trial court's factual conclusion on the issue of the Mistichs' intent, along with being inappropriate at the summary judgment stage, is arguably a premature decision on the negligent representation issue. If the trial court has already determined the Mistichs' intent, without allowing them to complete full discovery on the issue, it would be difficult, if not impossible, for the Plaintiffs to prevail on the negligent representation claims. The negligent representation argument presupposes that the Mistichs desired to procure UM coverage from Farm Bureau in the purchasing of the comprehensive policy. If the trial court has already found the Mistichs' intent was to merely insure themselves for the rare occasions that they rented or borrowed a vehicle, then they will not be able to prove negligent representation on the part of Farm Bureau’s agents. To make such a determination on intent at the summary judgment stage is not only inappropriate, but patently unfair.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge. MURRAY, J.,

license: Public Domain

text:
    Ulysses WILLIAMS v. The ORLEANS LEVEE DISTRICT AND ITS BOARD OF COMMISSIONERS, Jim Huey, Individually, and In His Capacity As President of the Board of Commissioners of the Orleans Levee District, Patricia Harris, Individually, and In Her Capacity As a Member of the Board of Commissioners, Gary Benoit, Individually, and In His Capacity As Acting General Counsel for the Orleans Levee District and ABC Insurance Company. Ulysses Williams v. The Orleans Levee District and Its Board of Commissioners, Jim Huey, Individually, and In His Capacity As President of the Board of Commissioners of the Orleans Levee District, Patricia Harris, Individually, and In Her Capacity As a Member of the Board of Commissioners, et al. Ulysses Williams v. Board of Commissioners, Orleans Levee District.
    Nos. 2009-CA-0003, 2009-CA-0004, 2009-CA-0005.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 4, 2009.
    Rehearing Denied Dec. 2, 2009.

      Louis R. Koerner, Jr., Koerner Law Firm, Houma, LA, for Ulysses Williams.
    James D. “Buddy” Caldwell, Attorney General, Special Assistant Attorney General, William David Coffey, Special Assistant Attorney General, Panzeca & D’Angelo, L.L.C., Metairie, LA, for State of Louisiana & Office of the Governor.
    Henry P. Julien, Jr., Stephen L. Scott, The Kullman Firm, APLC, New Orleans, LA, for Orleans Levee District & Its Board of Commissioners, et al.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

|; This appeal arises from a dispute regarding the dismissal of Ulysses Williams from his position with the Orleans Levee District. The Civil Service Commission and referee determined that an appropriate punishment for the alleged conduct was a thirty-day suspension, as opposed to his dismissal by the Orleans Levee District. The First Circuit reversed and reinstated the dismissal. Ulysses Williams also filed several suits in Orleans Parish seeking redress for his termination. The trial court granted the exception of res judicata as to the Orleans Levee District/Board of Commissioners regarding the claims of racial discrimination, discriminatory employment practices, whistle-blower violations, and civil rights violations. The trial court denied the exception of res judicata as to the Orleans Levee District/Board of Commissioners as it related to claims of defamation, false imprisonment, and the intentional infliction of emotional distress. The trial court also denied the exception of res judicata as to the claims alleged against the State of Louisiana through the Office of the Governor. For the following reasons, we find that the trial court did not err and affirm.

\,FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Ulysses Williams, the former assistant managing director of the Orleans Levee District (“OLD”), attempted to enter his office over the weekend of February 15, 1997, when the administrative offices were closed. Mr. Williams ignored the closure and telephoned his attorney when he was not permitted to enter the facility. Upon learning of the incident, the news media arrived on the scene and videotaped a confrontation between Mr. Williams; his attorney; Jim Huey, the president of OLD; and an OLD police officer. Allegedly as a result of the confrontation and the media coverage, the OLD suspended Mr. Williams pending further investigation.

CSC/First Circuit Proceedings

Mr. Williams appealed his suspension to the Civil Service Commission (“CSC”) asserting that he was being punished as a whistleblower. Mr. Williams was provided with a pre-deprivation hearing in regards to the charges of insubordination and breach of duty. Following the pre-depri-vation hearing, Mr. Williams was advised by the OLD that his employment was terminated. Thereafter, Mr. Williams filed a second appeal to the CSC alleging discriminatory treatment based on his race and alleged status as a whistleblower.

The CSC referee found that Mr. Williams’ behavior justified discipline. However, the referee held that a thirty-day suspension was warranted instead of termination. The CSC agreed and affirmed the referee’s finding. The OLD and Mr. Williams appealed to the First Circuit, which found that Mr. Williams “intentionally and purposefully disregarded the established procedures for an employee to pursue his grievance by using legal counsel and television media to interrogate and expose the appointing authority to embarrassment and ridicule.” Williams v. Orleans Levee Dist., Bd. of Comm’rs, 00-0297, p. 6 (La.App. 1 Cir. 3/28/01), 784 So.2d 657, 660. Thus, the First Circuit reversed the CSC and found that Mr. Williams’ termination was reasonable based on his alleged insubordination. The Louisiana Supreme Court denied writs. 01-1730 (La.9/14/01), 796 So.2d 686.

Orleans Parish/Fourth Circuit Proceedings

During the CSC proceedings, Mr. Williams filed a petition for damages in Orleans Parish Civil District Court against OLD, OLD’s Board of Commissioners (“Board”), Mr. Huey, Patricia Harris, Gary Benoit, and ABC Insurance Company (“ABC”) (collectively referred to as “Defendants”) regarding his termination. Mr. Williams alleged that the Defendants committed racial discrimination based on federal and state laws, violated his civil rights, violated the whistleblower act, defamation, false imprisonment, and intentionally inflicted emotional distress. Mr. Williams filed a second petition for damages containing similar allegations and added the State of Louisiana and Robert Namer as defendants. A third petition was filed whereby Mr. Williams requested back pay. Two of Mr. Williams’ pending petitions were removed to federal court and remanded. Upon remand, all three of Mr. Williams’ petitions were consolidated. In the case sub judice, Mr. Williams accused the Defendants of racial discrimination, pursuant to federal and state laws, civil rights violations, whistleblower violations, defamation, false imprisonment, and intentional infliction of emotional distress.

The Defendants filed exceptions of no right of action, no cause of action, prematurity, and lack of subject matter jurisdiction. The State of Louisiana, through the Office of the Governor (“State”), filed a motion to join in pleading the exceptions of OLD. The trial court denied all of the exceptions. The Defendants Lsought writs on the denial to this Court. This Court reversed the trial court as to the OLD in regards to the then pending First Circuit claims of racial discrimination, discriminatory employment practices, whistleblower violations, and civil rights violations.

Following this Court’s writ disposition and the First’s Circuit’s denial of a rehearing, the State filed an exception of res judicata, which was based upon the proceedings in the First Circuit. The State followed with a motion for summary judgment. The OLD and the Board also filed an exception of res judicata asserting that Mr. Williams’ claims were precluded by La. R.S. 18:4231. The trial court granted the exception of res judicata as to OLD and the Board in regards to the claims of racial discrimination, discriminatory employment practices, whistleblower violations, and civil rights violations. The trial court denied the exception of res judicata as to OLD and the Board as it relates to Mr. Williams’ claims for defamation, false imprisonment, and intentional infliction of emotional distress. Finally, the trial court denied the exception of res judicata as to all of Mr. Williams’ claims against the State. The State’s devolutive appeal followed. Mr. Williams also filed an answer to the appeal seeking a reversal of the partial grant of the exception of res judi-cata as to OLD and the Board.

STANDARD OF REVIEW

The peremptory exception of res judicata presents a legal question for review. Appellate courts review legal questions using the de novo standard of review. Tuban Petroleum, L.L.C. v. SIARC, Inc., 09-0302, p. 3 (La.App. 4 Cir. 4/15/09), 11 So.3d 519, 522, writ denied, 09-0945 (La.6/5/09), 9 So.3d 877; Anaya v. Legg Mason Wood Walker, Inc., 07-0654, p. 8 (La.App. 4 Cir. 5/14/08), 985 So.2d 281, 286, writ denied, 08-1289 (La.10/24/08), 992 So.2d 1040. Therefore, we must decide whether “the trial court’s decision is legally correct or incorrect.” Ins. Co. of N. Am. v. Louisiana Power & Light Co., 08-1315, p. 5 (La.App. 4 Cir. 3/4/09), 10 So.3d 264, 267. The trial court may also make factual determinations when ruling on an exception of res judicata. Those factual determinations are reviewed using the manifest error standard of review. Robertson v. Hessler, 08-1212, p. 9 (La.App. 4 Cir. 6/3/09), 13 So.3d 1214, 1220.

RES JUDICATA

The doctrine of res judicata “promotes judicial efficiency and final resolution of disputes.” Avenue Plaza, L.L.C. v. Falgoust, 96-0173 (La.7/2/96), 676 So.2d 1077, 1079. “[R]es judicata precludes re-litigation of claims and issues arising out of the same factual circumstances when there is a valid final judgment.” Ins. Co. of N. Am., 08-1315, p. 5, 10 So.3d at 267. The Louisiana Revised Statutes provides the following components of res judicata:

[e]xcept as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

La. R.S. 13:4231. “Res judicata cannot be invoked unless all its essential elements Rare present and each necessary element has been established beyond all question.” Asbestos Plaintiffs v. Borden, Inc., 01-1379, pp. 5-6 (La.App. 4 Cir. 8/14/02), 826 So.2d 581, 587-88. The Louisiana doctrine of res judicata was amended by Act 521 of 1990 by adopting issue preclusion. Ensenat v. Edgecombe, 97-2239, p. 3 (La.App. 4 Cir. 3/11/98), 707 So.2d 1059, 1061.

“A valid and final judgment is conclusive between the same parties, except on appeal or other direct review.” Avenue Plaza, L.L.C., 96-0173, 676 So.2d at 1079. The Louisiana Supreme Court stated that “the chief inquiry is whether the second action asserts a cause of action which arises out of the transaction or occurrence that was the subject matter of the first action.” Burguieres v. Pollingue, 02-1385, p. 7 (La.2/25/03), 843 So.2d 1049, 1053. However, all of the following must be fulfilled to preclude a second action:

(1)the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation.

Burguieres, 02-1385, p. 8, 843 So.2d at 1053. The requirement that the parties are the same in both suits “does not mean that the parties must have the same physical identity, but that the parties must appear in the same capacities in both suits.” Burguieres, 02-1385, p. 8, 843 So.2d at 1054. The Louisiana Supreme Court found that res judicata did not apply where issues were not actually litigated or contained as an object in the judgment. Lamana v. LeBlanc, 526 So.2d 1107, 1110 (La.1988).

Exceptions to the application of res judi-cata provide that

[a] judgment does not bar another action by the plaintiff:
(1) When exceptional circumstances justify relief from |7the res judicata effect of the judgment;
(2) When the judgment dismissed the first action without prejudice; or,
(3) When the judgment reserved the right of the plaintiff to bring another action.

La. R.S. 13:4232(A). This Court held that a court can “exercise its equitable discretion to balance the principle of res judicata with the interests of justice.” Fine v. Reg’l Transit Auth., 95-2603 (La.App. 4 Cir. 6/26/96), 676 So.2d 1134, 1136. While the exceptions may lessen the judicial efficiency of res judicata, the result is preferable to the loss of “substantive rights” that were not decided on the merits. Fine, 95-2603, 676 So.2d at 1137.

The mover on an exception of res judicata bears the burden of proof by a preponderance of the evidence. Guidry v. One Source Facility Serv., 04-2007, p. 3 (La.App. 4 Cir. 4/27/05), 901 So.2d 626, 628. The “doctrine of res judicata is stric-ti juris; any doubt concerning application of this principle must be resolved against its application.” Sutter v. Dane Inv., Inc., 07-1268, p. 3 (La.App. 4 Cir. 6/4/08), 985 So.2d 1263, 1265.

Mr. Williams contends that the trial court erred in finding res judicata applied to his termination related claims for racial discrimination, discriminatory employment practices, whistleblower violations, and civil rights violations against the OLD. The State asserts that virtual representation should be utilized to apply res judicata to Mr. Williams’ claims and require its dismissal.

Res Judicata as to OLD

As to terminated civil servants, this Court recognized, that the “Civil Service Commission has exclusive jurisdiction over classified Civil Service employer-employee disputes that are employment related.” Eberhardt v. Levasseur, 630 So.2d 844, 846 (La.App. 4th Cir.1993). “The authority to review the basis for a | ^termination of a civil servant’s employment and decide whether it was in accordance with law is expressly and unambiguously assigned to the CSC.” Reimer v. Med. Ctr. of Louisiana, 95-2799, p. 4 (La.App. 4 Cir. 1/29/97), 688 So.2d 165, 168.

The issue of why Mr. Williams was terminated was central to the four claims to which the trial court applied res judicata. The causes of action existed at the time of the appeal in the First Circuit and arose out of the same transaction or occurrence. In essence, Mr. Williams is requesting that the issue of why the OLD terminated him be relitigated. Mr. Williams contends that exceptional circumstances exist and an exception should be utilized to preclude the application of res judicata to the four claims, due to the limited subject matter jurisdiction of the CSC.

This Court examined the subject matter jurisdiction of the CSC when a civil servant alleged that discrimination was the cause of his termination rather than the reasons stated by his employer. Reimer, 95-2799, p. 4, 688 So.2d at 168. This Court reasoned:

[t]hat his petition makes reference to other statutes does not change the nature of his claim. The authority to review the basis for a termination of a civil servant’s employment and decide whether it was in accordance with law is expressly and unambiguously assigned to the CSC.

Id. We further stated that the civil servant’s “removal is at the heart of his suit” and that “[i]n order for him to be entitled to damages it must be determined that he was unlawfully discharged from his position.” Reimer, 95-2799, p. 6, 688 So.2d at 169.

In his appeal to the CSC, Mr. Williams alleged that he was terminated due to discrimination, racial discrimination, and his status as a whistleblower. Mr. 13WiIliams’ appellant brief to the First Circuit contended that he was terminated for political or non-merit reasons. Further, Mr. Williams filed a motion for rehearing with the First Circuit asserting his status as a whistleblower. However, in the case sub judice, Mr. Williams did not prove to the CSC or to the First Circuit that he was unlawfully terminated.

Mr. Williams also urges that this Court has recognized his assertion that decisions from limited jurisdiction tribunals have limited res judicata effect in In re Asbestos Plaintiffs v. Borden, Inc., 01-1379 (La.App. 4 Cir. 8/14/02), 826 So.2d 581. We find Asbestos distinguishable. The tribunal with limited jurisdiction in Asbestos rendered a decision as to the plaintiffs last causative employer and did not make any determinations regarding the plaintiffs issues of racial discrimination or negligence. Asbestos, 01-1379, p. 7, 826 So.2d at 588. Conversely, the CSC and the First Circuit specifically held, regarding the issue of Mr. Williams’ termination, that he was lawfully terminated based on insubordination. As such, the issue of Mr. Williams’ termination has been judicially determined as to the OLD and the judgment has the preclusive effect of res judicata as to Mr. Williams’ claims for racial discrimination, discriminatory employment practices, whistleblower violations, and civil rights violations. We do not find that the trial court erred in this finding and affirm.

Res Judicata as to the State

Although the First Circuit held that Mr. Williams was lawfully terminated, the State was not a party to that litigation. Accordingly, res judicata does not apply. However, the State asserts that res judi-cata attaches as to all of the claims alleged by Mr. Williams against the State through the theory of virtual representation and that a failure to apply the doctrine of res judicata could result in | minconsistent rulings. Mr. Williams asserts that the OLD was not the virtual representative of the State because the State did not function as his employer pursuant to La. R.S. 23:967.

The Louisiana Supreme Court adopted the federal requirements utilized when determining if the identity and capacity of the parties are the same in both suits and applied the representation theory to a party of plaintiffs. Forum For Equality PAC v. McKeithen, 04-2551, pp. 10-11 (La.1/19/05), 893 So.2d 738, 745. The requirements are:

(1) the nonparty is the successor in interest of a party; (2) the nonparty controlled the prior litigation; or (3) the nonparty’s interests were adequately represented by a party to the action who may be considered the “virtual representative” of the nonparty because the interests of the party and the nonparty are so closely aligned.

Id. In Forum, the second set of plaintiffs were “closely aligned with the interests of the parties” in the previous litigation because they were seeking to challenge the constitutionality of the Defense of Marriage Act. Forum, 04-2551, p. 11, 893 So.2d at 745. The Louisiana Supreme Court has not applied virtual representation to defendants. We find the case sub judice distinguishable because the OLD and the State’s interests were not adequately represented in the parallel proceedings as Mr. Williams’ allegations against the State differed as did the State’s capacity. Accordingly, we do not find that the State and the OLD were “so closely aligned” and res judicata does not apply.

LAW OF THE CASE

Lastly, the State avers that the law of the case doctrine should apply to preclude Mr. Williams from asserting the four claims against it that are res judicata as to the OLD. The doctrine “applies to parties who have previously had the identical question presented and decided by an appellate court.” Avenue Plaza, L.L.C., 96-0173, 676 So.2d at 1079. The law of the case doctrine is a “discretionary guide.” Id. This Court previously reversed the trial court and granted the exceptions of no cause of action, no right of action, and lack of subject matter jurisdiction specifically as to the OLD while the First Circuit appeal was pending. This Court’s writ disposition did not reference the State as a party and the parallel proceedings were incomplete at the time of the supervisory writ disposition. As it is discretionary in nature, we do not find that the law of the case doctrine applies to the facts and circumstances of this case.

DECREE

For the above mentioned reasons, we find that the trial court did not err and affirm.

AFFIRMED.

MURRAY, J., Concurs With Reasons.

MURRAY, J.,

concurs with reasons.

| ^though I agree with the result the majority reaches, I write separately to address the issue of the State’s exception of res judicata. The State’s exception is based on the doctrine of virtual representation, a federal court concept the Louisiana Supreme Court applied in Forum for Equality PAC v. McKeithen, 04-2551 (La.1/19/05), 893 So.2d 738. Distinguishing this case on the facts from McKeithen, supra, the majority finds the virtual representation doctrine does not apply.

Subsequent to the decision in the McKeithen case, the United States Supreme Court in Taylor v. Sturgell, 553 U.S. 880, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008), disapproved the doctrine of preclusion by virtual representation. The Supreme Court held that “[t]he preclusive effects of a judgment in a federal-question case decided by a federal court should instead be determined according to the established grounds for nonparty preclusion.” Sturgell, 553 U.S. at -, 128 S.Ct. at 2178. It is therefore unnecessary to reach the issue of whether the disapproved doctrine of preclusion by virtual representation applies. Since the State (a nonparty to the prior litigation) has cited no other basis for finding res judicata applies, the trial court correctly denied its exception.

For these reasons, I concur.

      . The Louisiana Supreme Court denied writs. See Williams v. Orleans Levee Dist., 01-1730 (La.9/14/01), 796 So.2d 686.

      . Although the State joined in the pleading of exceptions, this Court's writ disposition only refers to the OLD as the relator.

      . The State's motion for summary judgment was deferred.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Jayanne CRAWLEY d/b/a Southlands Premium Tropicals v. COASTAL BRIDGE CO. INC. and Louisiana Grain Services, Inc.
    No. 09-CA-181.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 2009.
    Rehearing Denied Dec. 11, 2009.
    Richard M. Millet, Attorney at Law, La-Place, Louisiana, for Plaintiff/Appellant.
    Robert S. Reich, Lucas R. Henderson, Attorneys at Law, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

| gPlaintiff/Appellant, Jayanne Crawley, d/b/a Southlands Premium Tropicals, appeals from a trial court ruling which granted summary judgment in favor of defendant, Coastal Bridge Co., Inc., on the issue of Crawley’s claim for property damages. For the following reasons, the judgment of the trial court is affirmed.

The present lawsuit was the subject of a previous appeal in which this Court stated the factual history of the litigation as follows:

On October 3, 1999, plaintiff Jayanne Crawley, d/b/a Southlands Premium Tropicals (“Crawley”) entered into a lease of commercial property with defendant, Louisiana Grain Services, Inc., for vacant land located at Lot 6A, Bert Street, in LaPlace, Louisiana. Crawley leased the land in connection with the cultivation of thousands of Sago Palm plants, which she would then sell through Southlands Premium Tropicals. The term of the lease was for six months, commencing on November 1, 1999 and ending on April 30, 2000. Paragraph 25 of the lease provided that upon expiration of the lease, Crawley would immediately surrender possession of the land to Louisiana Grain, and that there would be no holdover of the lease by Crawley except by written agreement.
LThe lease between Crawley and Louisiana Grain passed without a renewal, and Crawley neither removed her property from the premises nor made any further payment of rent. Louisiana Grain thereafter leased the land to defendant, Coastal Bridge Co., Inc., (“Coastal”) for a term of four months, commencing July 19, 2000 and ending 12:00 p.m. on November 30, 2000.
Crawley asserts that on July 19, 2000, Coastal entered upon the leased premises while she was out of town and destroyed/removed her property, including approximately 3,000 palm plants. Craw-ley further asserts that on July 27, 2000, while in the process of trying to move what remained of her property and equipment, she sustained a personal injury consisting of a complex fracture to her ankle.
Crawley filed suit against Louisiana Grain and Coastal in the Fortieth Judicial District Court for the Parish of St. John, alleging, among other things, damages for her personal injury, as well as for damages “in negligently destroying her property and business” without notice.

Crawley v. Coastal Bridge Co., Inc., 03-1303, pp. 2-3 (La.App. 5 Cir. 4/27/04), 871 So.2d 1271, 1272, writ denied, 04-1637 (La.10/8/04), 883 So.2d 1036. In that case, a panel of this Court affirmed the trial court ruling granting summary judgment in favor of Louisiana Grain Services, Inc. on Crawley’s property damages claim on the basis that her continued possession of the premises was unlawful and she could not sustain a claim for damage to her property. In reaching this conclusion, this Court determined that the lease agreement between Crawley and Louisiana Grain provided for reconduction after expiration only upon written agreement of the parties.

The record also indicates that plaintiffs personal injury claim against Coastal Bridge was dismissed by the trial court and affirmed by this Court in 14an unpublished opinion. Thus, the only remaining claim presented by this appeal is plaintiffs property damage claims against Coastal Bridge.

On September 22, 2008, Coastal Bridge filed the instant Motion for Summary Judgment seeking to dismiss the remaining claims asserted by plaintiff. Following a hearing in the trial court on October 24, 2008, judgment was orally rendered in favor of defendant, Coastal Bridge Co., Inc., dismissing plaintiffs suit against them with prejudice. The written judgment was subsequently signed on November 17, 2008. Plaintiff now appeals from this judgment.

Summary judgments are reviewed on appeal de novo. Smith v. Our Lady of the Lake Hosp., 639 So.2d 730, 750 (La.1994); Moody v. United Nat’l Ins. Co., 98-287 (La.App. 5 Cir. 9/29/98), 743 So.2d 680, writ denied, 98-2713 (La.12/18/98), 734 So.2d 639.

An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law. Smith, supra; Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191.

The rules governing summary judgments are found in La.C.C.P. art. 966 and 967. A motion for summary judgment shall only be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). The summary judgment procedure is favored under our law. Ross v. Conoco, Inc., 02-0299 (La.10/15/02), 828 So.2d 546.

IsThe initial burden of proof remains with the mover to show that no genuine issue of material fact exists. La. C.C.P. art. 966(C)(2). If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Hutchinson v. Knights of Columbus, Council No. 574-7, 03-1533 (La.2/20/04), 866 So.2d 228; Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606, 609-610. When a motion for summary judgment is made and supported, the adverse party may not rest on the allegations or denials of his pleadings but must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967.

Coastal Bridge asserted in its motion for summary judgment that it owed no duty to safeguard property wrongfully stored on the leased premises. Further, Coastal Bridge asserted that even if there was a duty, plaintiff failed to mitigate her damages.

In support of its motion, Coastal Bridge submitted a deposition of Jerry Hughes, the general manager for one of its projects who stated that he executed the lease of the subject property on behalf of Coastal Bridge. Mr. Hughes stated that Coastal Bridge was working in the area and was in need of a site to store materials and equipment for the job. During the week of July 19, 2000, Mr. Hughes saw a “For Sale” sign on the subject property and called the real estate agent to determine if the owner would allow a lease of the property. On July 19, 2000, Mr. Hughes went to the real estate office and signed a lease of the property on behalf of Coastal Bridge for a four month term with an option to renew on a monthly basis. The following day, |fiMr. Hughes went to the property and discovered what he described as “dead plants” on a portion of the property. According to Mr. Hughes, the plants were the only thing on the property. Mr. Hughes stated he notified the real estate agent who then apparently attempted to contact Ms. Crawley. Approximately one week later, Mr. Hughes was notified that Ms. Crawley was unable to be located, and Mr. Hughes directed his employees to move the plants to a corner of the property.

Coastal Bridge also submitted a copy of plaintiffs deposition in which she stated she entered into a lease of the subject property with Louisiana Grain in November of 1999 for an indefinite period. The purpose of the lease was for plaintiff to grow Sago palms to sell commercially and she brought approximately 2000 plants to the subject property in January of 2000. She admitted that she failed to pay rent in May and June and that she was aware she was in default of the lease. She stated that she was on vacation in July of 2000 when Coastal Bridge came on the property and allegedly destroyed her plants. When she was notified that her plants had been moved, she went to the property to try to retrieve what she could, and she fell and sustained a multiple fracture to her ankle.

In opposition to the motion, plaintiff submitted a copy of her deposition which stated that she maintained approximately 3000 Sago Palms on the subject property between November 1, 1999 and July 19, 2000 pursuant to a written lease agreement. She stated that the plants were in good condition when employees of Coastal Bridge removed and destroyed them.

A copy of the lease agreement between Crawley and Louisiana Grain is also contained in the record. The lease is for a term of 6 months, ^commencing on November 1, 1999 and ending at midnight on April 30, 2000. The rent under the lease is $125 per month payable 6 months in advance. The lease also provides that lessee shall surrender possession of the leased premises immediately upon expiration or termination of the lease and a holding over by the lessee shall not operate except by written agreement to extend or renew the lease. Although the lease provides that the lessor may consider any holding over without its consent to constitute a renewal on a month to month basis, in such a case the lessee must pay triple the monthly rent stipulated in the agreement. The record also contains a copy of the lease agreement between Louisiana Grain and Coastal Bridge which was for a term of 4 months, commencing on July 19, 2000 and ending at midnight on November 30, 2000.

A review of the record in this case shows that plaintiff did not have lawful possession of the subject property on July 19, 2000. The lease agreement with the owner of the property specifically provided a termination date of April 30, 2000. There is no evidence of any renewal or extension of the lease terms and Crawley admitted in her deposition that she did not pay rent beyond April 30, 2000. Her belief as stated in her deposition that the lease was for an indefinite term is not supported by the agreement between the parties. Although Crawley asserts that her occupancy of the premises remained uninterrupted and undisturbed until Coastal Bridge occupied and destroyed her property, we find such an interpretation of the factual circumstances to be flawed. After termination of the lease agreement on April 30, 2000, Crawley no longer had a right of occupancy of the premises. Further, pursuant to its lease agreement, Coastal Bridge has a right to possession of the subject property commencing on July 19, 2000.

| sUnder these circumstances, we find no duty on the part of Coastal Bridge to preserve plaintiffs property which was not lawfully on the leased premises. Absent a duty to plaintiff, we conclude that Coastal Bridge is entitled to judgment in its favor as a matter of law. We therefore find no error of the trial court in granting summary judgment in this matter. The judgment of the trial court is affirmed.

AFFIRMED.

      . A copy of this opinion is contained in the record before us. Crawley v. Coastal Bridge Co., Inc., 02-933 (La.App. 5 Cir. 12/30/02, 837 So.2d 769),


author: GRIFFIS, J.,

text:
    Willie L. BROWN, Appellant, v. ROBINSON PROPERTY GROUP, LIMITED PARTNERSHIP d/b/a Horseshoe Casino and Hotel and Zurich American Insurance Company, Appellees.
    No. 2008-WC-01091-COA.
    Court of Appeals of Mississippi.
    July 28, 2009.
    Rehearing Denied Dec. 15, 2009.

      Lawrence J. Hakim, Batesville, attorney for appellant.
    George E. Dent, Tupelo, attorney for appellees.
    Before KING, C.J., GRIFFIS and MAXWELL, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Willie L. Brown filed for workers’ compensation benefits for an injury to his right elbow and for bilateral carpal tunnel syndrome in his right arm and hand. The Mississippi Workers’ Compensation Commission found that Brown failed to show that his injuries were work-related; thus, Brown was denied workers’ compensation benefits. The Commission’s decision was upheld by the Circuit Court of Tunica County. Brown appeals to this Court claiming that the Commission’s decision was not based on substantial evidence, was arbitrary and capricious, and was based on an erroneous application of the law. We find no error and affirm.

FACTS

¶ 2. On December 10, 2000, Brown began work as a slot cashier at Horseshoe Casino and Hotel (“Horseshoe Casino”). He worked in the cage on the casino floor making change for guests and operating the coin sorter. Once the coins were sorted, he was required to unload bags of coins weighing approximately fifty to eighty pounds each. Brown described the work as fast-paced, involving repetitive movements of his right arm and wrist. Brown’s duties also included refilling the slot machines by carrying bags of coins to the slot machine and pouring the coins into the back of the slot machine.

¶ 3. Brown filed two workers’ compensation claims. One alleged a June 1, 2001, work injury to his right elbow. The other alleged bilateral carpal tunnel syndrome as a result of his repetitive lifting and carrying of the coin bags. A hearing was held before an administrative law judge (“ALJ”) to determine whether Brown’s claims were related to his work at Horseshoe Casino. The ALJ found that Brown met his burden of proof regarding the June 1, 2001, injury to his right elbow. Brown was awarded temporary total disability and necessary medical payments relating to this injury. However, the ALJ found that Brown failed to prove that his bilateral carpal tunnel syndrome was work-related.

¶ 4. Both parties requested review of the ALJ’s order by the Commission. After hearing oral argument, the Commission held that Brown failed to meet his burden of proof on both claims and denied all benefits. The Commission’s decision was thereafter affirmed by the circuit court. Brown appeals to this Court claiming that the Commission’s decision is not based on substantial evidence, is arbitrary and capricious, and is based on an erroneous application of the law.

STANDARD OF REVIEW

¶ 5. This Court’s scope of review in workers’ compensation cases is limited to a determination of whether the decision of the Commission is supported by substantial evidence. Westmoreland v. Landmark Furniture, Inc., 752 So.2d 444, 447(¶ 7) (Miss.Ct.App.1999). The Commission sits as the ultimate finder of fact; its findings are “subject to normal, deferential standards upon review.” Natchez Equip. Co. v. Gibbs, 623 So.2d 270, 273 (Miss.1993). We will only reverse the Commission’s ruling when its findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious. Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1224-25 (Miss.1997); Westmoreland, 752 So.2d at 448(¶ 8).

ANALYSIS

I. Whether this appeal should be dismissed due to Broom’s failure to timely pursue the appeal.

¶ 6. Before we reach the merits of this case, we note that Horseshoe Casino moved to dismiss this appeal based on Brown’s failure to pursue his appeal until more than a year after filing his notice of appeal. The circuit court affirmed the Commission’s denial of benefits on January 5, 2007. Brown timely filed his notice of appeal to this Court on January 11, 2007. Although Brown was contacted by the Commission and counsel opposite, he failed to file his designation of record until thirteen months after his notice of appeal. Brown also failed to file his certificate of compliance or pay his filing fee and appeal costs to the circuit court clerk.

¶ 7. On February 21, 2008, Horseshoe Casino filed a motion to dismiss in the circuit court. The circuit court did not rule on the motion before the record was sent to the supreme court for this appeal. On July 7, 2008, the supreme court clerk issued Brown a deficiency notice pursuant to Rule 2(a)(2) of the Mississippi Rules of Appellate Procedure which states, in part:

An appeal may be dismissed upon motion of a party or on motion of the appropriate appellate court (i) when the court determines that there is an obvious failure to prosecute an appeal; or (ii) when a party fails to comply substantially with these rules. When either court, on its own motion or on motion of a party, determines that dismissal may be warranted under this Rule 2(a)(2), the clerk of the Supreme Court shall give written notice to the party in default, apprising the party of the nature of the deficiency. If the party in default fails to correct the deficiency within fourteen (14) days after notification, the appeal shall be dismissed by the clerk of the Supreme Court. The attorney for the party in default has the burden to correct promptly any deficiency or to see that the default is corrected by the appropriate official.

¶ 8. The deficiency notice instructed Brown that he had fourteen days to correct the deficiencies in his appeal or the appeal would be dismissed. Brown complied with the letter by paying his filing fee and appeal costs to the circuit court clerk and by filing his designation of record and certificate of compliance within fourteen days.

¶ 9. The supreme court decided a similar case in Van Meter v. Alford, 774 So.2d 430 (Miss.2000). Van Meter timely filed its notice of appeal but “was delinquent in filing a designation of record, an estimation of costs, and a Rule 11(b)(1) certificate of compliance.” Id. at 432(¶ 6). Each of these requirements for an appeal are to be filed within seven days of the notice of appeal. Id. (citing M.R.A.P. 10(b)(1) and 11(b)(1)). However, Van Meter was never given official notice from the clerk of the deficiencies of his appeal as required under Rule 2(a)(2). let at (V 3).

¶ 10. The supreme court held that due process required that Van Meter receive an official notice from the clerk. Id. at (¶ 4). Alford’s motion to dismiss was not sufficient notice of the deficiencies of the appeal because “[e]ven where a party has moved to dismiss, the plain language of the rule requires a notice from the clerk of the deficiency and a fourteen day opportunity to cure the deficiency.” Id.

¶ 11. Here, Horseshoe Casino’s motion to dismiss was filed months before Brown was given notice from the supreme court clerk. When Brown eventually received an official notice from the supreme court clerk, he immediately cured the deficiencies within the fourteen day time period. According to Van Meter, due process required that Brown receive this official notice before his appeal could be dismissed. Because he cured the deficiencies in the time allowed under Rule 2(a)(2), we cannot now dismiss Brown’s appeal. Thus, we continue to the merits of the appeal.

II. Whether the Commission’s decision was not based on substantial evidence, was arbitrary and capricious, or was based on an erroneous application of the law.

¶ 12. Brown argues that the Commission erred in denying both his claim for the injury to his right elbow and his claim for bilateral carpal tunnel syndrome. Horseshoe Casino claims that substantial evidence exists to support the Commission’s decision. We address each claim separately.

A. Right Elbow Injury

¶ 13. Brown testified that he injured his right elbow while filling a slot machine on June 1, 2001. He and another coworker were preparing to fill the slot machine when a guest asked Brown for change. Brown’s coworker thought that Brown was paying attention to the slot machine, and the coworker opened the door on the back of the machine. While Brown was helping the guest, the door to the slot machine struck Brown on the back of his right elbow. He stated that it felt like hitting his funny bone. He experienced a sharp pain for approximately fifteen minutes.

¶ 14. Brown continued to work that evening, and he did not report this injury to anyone at Horseshoe Casino. In September 2001, Brown complained to Regina Barnes in the human resources department that his right arm and hand were interfering with the duties of his employment; however, Brown failed to mention any work-related injury. In December 2001, Brown reported to his supervisor, Patrice Rush, that he had right arm pain and headaches. Again, he failed to link his medical problems to his alleged work injury.

¶ 15. Brown first sought medical treatment on December 28, 2001, from Dr. William Drewry. Brown complained of depression, headaches, and decreased strength in his right hand. Dr. Drewry ordered an electromyography which revealed ulnar neuropathy cubital tunnel syndrome in Brown’s right arm.

¶ 16. Brown was referred to Dr. Gary Kellett, a specialist, who diagnosed Brown with severe ulnar neuropathy. Dr. Kellett performed surgery on Brown’s right elbow. Brown was sent to physical therapy and then released with a permanent thirty-pound weight restriction for his right arm. Dr. Kellett found that Brown reached maximum medical improvement on June 28, 2002.

¶ 17. It was not until Brown began treatment with Dr. Kellett on February 21, 2002, that Brown reported the alleged work-related injury to his elbow. Dr. Kel-lett asked Brown whether he had sustained any blunt trauma to his elbow. Brown testified that it was at that moment that he made a connection between the pain in his arm and the June 1, 2001, injury to his elbow.

¶ 18. When asked if he had any trauma to his elbow, Brown told Dr. Kellett about the injury with the slot machine door. Thus, Dr. Kellett concluded in his medical report that “since [Brown] had the onset [of the pain in his arm] at the time of the injury to his elbow on the door, that this was the cause of [Brown’s] injury.”

¶ 19. The ALJ found that Brown’s testimony about his elbow injury was uncontra-dicted, reasonable, and credible. Further, the ALJ concluded that Brown immediately reported the injury to his elbow once Dr. Kellett connected the elbow injury to the pain he was experiencing in his right arm and hand. The ALJ awarded Brown temporary total disability benefits from December 28, 2001 until June 28, 2002, and all reasonable and necessary medical services related to his elbow injury.

¶ 20. However, the Commission overturned the ALJ’s ruling as to Brown’s elbow injury. The Commission held that Brown did not meet his burden of proving that the elbow injury was work-related. Of significance to its ruling, the Commission found that Brown twice reported problems with his right arm and hand to his supervisors at Horseshoe Casino; however, Brown never mentioned that he suffered an injury to that arm at work. Further, the Commission noted that Dr. Kellett’s finding of causation was solely based on Brown’s report that he injured his elbow at work.

¶21. Most significantly, the Commission found the Brown’s testimony as a whole was untrustworthy. The Commission’s ruling stated that:

the tenor of the claimant’s entire testimony is simply not trustworthy. A reading of his testimony at the hearing leaves the Commission with the impression that the claimant is evasive in manner and leads us to conclude that this claimant conveniently recalled an injury when it served his needs. The credibility of the claimant is always crucial to his case. While the [ALJ] evidently found the claimant’s testimony credible in some aspects — at least sufficient to support a recovery for his right elbow claim, we cannot agree. To us, the entirety of the testimony compels us to question the claimant’s veracity on all issues. As the crucible of his claim, we find the claimant lacking.

¶ 22. Our review of the Commission’s holding is quite limited. The Commission’s findings “are binding on this Court so long as they are supported by substantial evidence” even though the evidence might “convince this Court otherwise, were we the fact-finder.” Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 12 (Miss.1994) (quoting Mitchell Buick Pontiac & Equip. Co. v. Cash, 592 So.2d 978, 980 (Miss.1991)) (citations omitted).

¶ 23. Brown failed to report his alleged work-related injury until more than eight months later. During this time, he reported to Horseshoe supervisors that problems with his right arm and hand were interfering with his work. However, he never mentioned the injury to his elbow. He also failed to disclose the injury to Dr. Drewry. In fact, there is no mention of this injury until Dr. Kellett directly asked him whether he had suffered blunt trauma to the elbow.

¶ 24. Initially, Brown could not name the coworker who witnessed his injury. Nor could he remember whether the coworker was male or female. At a later time, Brown claimed to remember that the coworker’s name was Trudy; however, Brown did not obtain her testimony to corroborate his claim.

¶ 25. At times, Brown gave inconsistent reports of the onset of his injury. When Brown saw Dr. Drewry on December 28, 2001, he stated that the symptoms in his right arm had occurred for about a year. That statement is inconsistent with his date of injury on June 1, 2001. There was also testimony at the hearing that Brown suffered a shoulder injury in 1997 or 1998; however, Brown did not mention this injury to any of his doctors.

¶ 26. Furthermore, Dr. Kellett did not give an objective opinion to a reasonable degree of medical probability as to the causation of Brown’s diagnosis. Dr. Kel-lett based his finding of causation solely on Brown’s delayed report of a work injury to his elbow. Dr. Kellett merely concluded that Brown’s condition was consistent with Brown’s story of the injury.

¶ 27. Brown’s testimony was crucial to his claim, and the Commission, as fact-finder in this case, found Brown to be wholly untrustworthy. We find that there is substantial evidence to uphold the Commission’s decision as to Brown’s elbow injury. As such, this issue is without merit.

B. Bilateral Carpal Tunnel Syndrome

¶ 28. Brown’s claim for workers’ compensation benefits related to his bilateral carpal tunnel syndrome was based on his repetitive lifting, straining, and carrying of the coin bags. The ALJ concluded that Brown failed to meet his burden of proving that his carpal tunnel syndrome was work-related because there was insufficient evidence to show a causal connection between the injury and his work activities. The Commission agreed and affirmed the findings of the ALJ.

¶ 29. Brown offered no medical testimony to relate his bilateral carpal tunnel syndrome to his work at Horseshoe Casino. His argument is that common sense would establish a connection between the injury and the repetitive motion of his work. However, that argument alone is not enough to overturn the decision of the Commission. Because Brown offered no proof of a causal connection, we find that the Commission’s decision to deny workers’ compensation benefits for Brown’s bilateral carpal tunnel syndrome is based on substantial evidence. Accordingly, this issue is without merit.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


author: ISHEE, J., CARLTON, J.,

text:
    Sidney Kelton PACE, Appellant v. Melanie Jean PACE, Appellee.
    No. 2008-CA-00380-COA.
    Court of Appeals of Mississippi.
    Nov. 24, 2009.

      David A. Roberts, attorney for appellant.
    Mark H. Watts, Pascagoula, Ray T. Price, Hattiesburg, attorneys for appellee.
    Before MYERS, P.J., ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Sidney Pace and Melanie Pace were granted a divorce on the ground of irreconcilable differences on December 4, 2002; the judgment of divorce incorporated a written agreement concerning custody and property settlement. Thereafter, on July 7, 2005, Melanie filed a complaint for contempt in the Chancery Court of Jackson County, alleging that Sidney was in arrears on his agreed payments. Sidney responded and asked the chancery court to find the agreement unconscionable and, therefore, unenforceable. The chancery court held a hearing on the matter and refused to find Sidney in contempt. In the judgment, the chancery court modified some provisions of the agreement but, for the most part, left it intact. Aggrieved, Sidney appeals and presents the following issues for consideration:

I. Whether it was error to refuse to find the property settlement agreement to be unenforceable based on its unconscionability and ambiguity.
II. Whether it was error to order payment of the arrearage on the mortgage, property taxes, and property insurance.
III. Whether it was error to refuse to modify the property settlement agreement to clarify the ambiguous terms.
IV.Whether the chancery court’s ruling was ambiguous and unenforceable.

Finding no error, we affirm.

FACTS

¶ 2. Melanie and Sidney were married on June 7, 1986, and they had three children during their marriage, all of whom were minors at the time of the proceeding in chancery court. Melanie and Sidney separated on or about May 29, 2002, and on December 4, 2002, they were granted a divorce on the ground of irreconcilable differences. The parties had previously signed an agreement for custody and property settlement (the Agreement), which was signed by Sidney on September 17, 2002, and by Melanie on September 24, 2002. The Agreement was incorporated into the final judgment of divorce.

¶ 3. Sidney did not consult an attorney before signing the Agreement, despite the fact that he was a doctor and had the financial means to do so. The Agreement provided that the parties would share joint legal custody of the three minor children, with Melanie receiving primary physical custody and Sidney receiving visitation. In pertinent part, the Agreement included the following provisions: (1) Sidney shall pay $1,500 or twenty-two percent of his income per month in child support; (2) Sidney shall maintain medical, health, dental, and optical insurance through his employer for Melanie and the three children, and Sidney shall be responsible for any costs not covered by that insurance; (3) Sidney shall be responsible for the payment to obtain school uniforms; (4) Sidney shall be responsible for the payment of the daycare expenses; (5) Sidney shall be responsible for the payment of the children’s college expenses and extracurricular activities; (6) Sidney shall maintain $500,000 worth of life insurance for the benefit of Melanie and the children; (7) Sidney shall be allowed to claim the children for tax purposes; (8) Melanie shall be awarded all assets and interest that Sidney has or may acquire in his professional associations or corporations; (9) Melanie shall be awarded the marital home in Ocean Springs, Mississippi, with Sidney to be responsible for the remaining indebtedness, taxes, and insurance on the home; (10) Melanie shall be awarded the 1999 GMC Suburban, and Sidney shall purchase Melanie a new vehicle every four years and be responsible for payments of said vehicles; (11) Sidney shall be awarded the home in Pascagoula, Mississippi, and the 1999 Jeep Wrangler; (12) Melanie shall waive any interest in Sidney’s medical practice; (13) Sidney shall pay Melanie $1,500 per month in alimony, to increase to $4,500 per month if Melanie “is fired, quits, laid off, or her position of employment with [Sidney’s] office and/or company is terminated for any reason ...with alimony to survive Sidney’s death or Melanie’s remarriage; and (14) each party shall waive any right to the other party’s retirement.

¶ 4. Following the parties’ divorce, Sidney made payments of $6,000 per month to Melanie. According to Sidney, this represented $1,500 in alimony, $1,500 in child support, and $3,000 for Melanie’s household expenses — items such as the mortgage and car payment that he had agreed to pay. Sidney contended that he paid more than he was required to pay under the Agreement. However, Melanie claimed that he was in arrears in his payments for the mortgage, taxes, and insurance because she thought the $6,000 per month represented $4,500 in alimony and $1,500 in child support. Sidney did not make any payments for the school uniforms or for daycare, but Melanie admitted that she never sent him a bill for those expenses. Also, Sidney never added Melanie as a beneficiary to the $500,000 life insurance policy that he maintained for the children, and Melanie never executed a release of her claims to Sidney’s retirement.

¶ 5. After hearing from the parties, the chancellor, for the most part, upheld the terms of the Agreement. However, the chancellor did find that: (1) Melanie waived the provision granting her an interest in Sidney’s business; (2) Melanie waived the provision ordering Sidney purchase her a new car every four years; and (3) Sidney’s obligation to pay alimony would cease upon his death or Melanie’s remarriage. The chancellor found that there had not been a material change in circumstances that would warrant a reduction in alimony payments because Sidney’s income had increased since the divorce; the chancellor also ordered Sidney to pay the arrearage on the marital home expenses: the mortgage, insurance, and taxes. The chancellor found that Sidney was not in willful contumacious contempt of court but did order him to pay $2,500 in attorney’s fees to compensate Melanie for having to file the contempt action.

STANDARD OF REVIEW

¶ 6. This Court’s standard of review in a domestic relations matter provides that a chancellor is “vested with broad discretion, and this Court will not disturb the chancellor’s findings unless the court was manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard.” Pulliam, v. Smith, 872 So.2d 790, 793(¶ 5) (Miss.Ct.App.2004) (citing Andrews v. Williams, 723 So.2d 1175, 1177(¶ 7) (Miss.Ct.App.1998)).

DISCUSSION

I. Property Settlement Agreement

¶ 7. Sidney first argues that the Agreement that he and Melanie signed was unenforceable because it was unconscionable and ambiguous. He describes the Agreement as “one such as no man in his senses and not under a delusion would make on the one hand, and as no honest and fair man would accept on the other.... ” Warren v. Warren, 815 So.2d 457, 461(¶ 14) (Miss.Ct.App.2002) (quoting In re Will of Johnson v. Robinson, 351 So.2d 1339, 1341 (Miss.1977)). Sidney claims that he had no choice but to sign the Agreement, which had been drafted by Melanie’s attorney, and Sidney had little time to study it or read it carefully. Furthermore, Sidney notes that he “was in the unfortunate position of having a pregnant girlfriend and a hostile wife.”

¶ 8. Generally, a chancery court may modify an award of periodic alimony if there has been a material change of circumstances that “occurred as a result of after-arising circumstances not reasonably anticipated at the time of agreement.” Dix v. Dix, 941 So.2d 913, 916(¶ 15) (Miss.Ct.App.2006) (citing Varner v. Varner, 666 So.2d 493, 497 (Miss.1995)). However, the supreme court has also stated that “[property settlement agreements are fixed and final, and may not be modified absent fraud or contractual provision allowing modification.” Weathersby v. Weathersby, 693 So.2d 1348, 1352 (Miss.1997) (citing Mount v. Mount, 624 So.2d 1001, 1005 (Miss.1993); Brown v. Brown, 566 So.2d 718, 721 (Miss.1990); East v. East, 493 So.2d 927, 931-32 (Miss.1986)). In Weath-ersby, the supreme court stated that:

In property and financial matters between the divorcing spouses themselves, there is no question that, absent fraud or overreaching, the parties should be allowed broad latitude. When the parties have reached agreement and the chancery court has approved it, we ought to enforce it and take as dim a view of efforts to modify it, as we ordinarily do when persons seek relief from their improvident contracts.

Weathersby, 693 So.2d at 1351 (quoting Bell v. Bell, 572 So.2d 841, 844 (Miss.1990)); see also Kelley v. Kelley, 953 So.2d 1139, 1143(¶ 9) (Miss.Ct.App.2007) (noting that a property settlement agreement incorporated into the divorce decree is not subject to modification except in limited situations).

¶ 9. Sidney first notes that “[w]here a property settlement agreement is entered into in contemplation of a divorce on the ground[s] of irreconcilable differences, there is more at work than general contract law.” Warren, 815 So.2d at 461(¶ 13) (quoting Grier v. Grier, 616 So.2d 337, 340 (Miss.1993)). He also bases his argument on the fact that a chancellor has discretion to modify a property settlement agreement “where he finds it is necessary to protect the parties because the courts are not used as tools ‘for implementing unconscionable contracts which are not fair to either party.’” Id.

¶ 10. Sidney would further have this Court find overreaching based on this Court’s citation to the Florida District Court of Appeals’ definition of the concept, which we stated as follows:

“[T]hat which results from an inequality of bargaining power or other circumstances in which there is an absence of meaningful choice on the part of one of the parties.” Sehreiber also stated that “overreaching involves the situation where one party, having the ability to force the other into an unfair agreement, does so.”

Lowrey v. Lowrey, 919 So.2d 1112, 1119(1127) (Miss.Ct.App.2005) (quoting Schreiber v. Schreiber, 795 So.2d 1054, 1057 (Fla.Ct.App.2001)). However, Sidney neglects to include this Court’s later citation to Sehreiber, where we stated as follows:

[T]he Florida District Court of Appeal held that an agreement was not the product of overreaching where it was definitely one-sided and unfair, but that alone did not equate to overreaching absent a sufficient showing that the settlement agreement resulted from an inequality of bargaining power or other circumstances such that there was no meaningful choice on the part of the disadvantaged party.

Id. at 1121(¶ 35) (citing Schreiber, 795 So.2d at 1057). In Lowrey, this Court went on to summarize the wife’s situation that evidenced overreaching, such as the fact that: the wife did not have an attorney; she could not afford an attorney; the husband threatened to see her in court if she hired an attorney; the husband threatened that he would “destroy her”; the husband threatened that she would never live in that town again or see her children again; and the wife signed the property settlement agreement at the law office of the husband’s brother and attorney. Id. at (¶ 87).

¶ 11. We find nothing similar in the circumstances in the present case except for the fact that Sidney did not hire an attorney before signing the Agreement. We do not hold this factor against Melanie because Sidney was a successful doctor who certainly had the financial means to hire an attorney. The chancellor also found that Sidney had the intelligence to fully read and understand the Agreement before signing it. In the final judgment, the chancellor concluded that:

The Court is quite aware that Dr. Pace entered into an onerous agreement. As the evidence indicated, Dr. Pace was motivated to obtain a divorce, and according to Ms. Pace, Dr. Pace promised to take care of her and the children [by] entering into the property settlement agreement. This Court is mindful that the Agreement provided Ms. Pace with more in monthly support from Dr. Pace than likely would have been awarded had this matter been litigated before a chancellor. However, Dr. Pace entered into this Agreement of his own free will and accord and must live by the terms thereof.

The fact that he “was in the unfortunate position of having a pregnant girlfriend and a hostile wife” affords Sidney little sympathy or grounds to constitute overreaching.

¶ 12. Sidney’s reliance on Duncan v. Duncan, 815 So.2d 480, 484(¶ 13) (Miss.Ct.App.2002) is similarly misplaced. In Duncan, the chancery court granted a divorce on the ground of uncondoned adultery, and the court made the determination as to the financial award. Id. at 482(¶ 1). Duncan is distinguishable from the present situation in which the parties were granted an irreconcilable differences divorce and signed a property settlement agreement.

¶ 13. In Lowrey, this Court stated that:

Our standard of review dictates that this Court must enforce a settlement agreement connected to a divorce action as long as that agreement received approval by the chancery court. There are two exceptions to our mandate to enforce an approved settlement agreement: this Court may not enforce such an agreement if the moving party demonstrates either fraud or overreaching.

Lowrey, 919 So.2d at 1118(¶ 23) (citations omitted). We find no evidence of such fraud or overreaching in the present case. Accordingly, this Court must enforce the Agreement into which the parties voluntarily entered and which was approved by the chancery court. We find that this issue is without merit.

II. Arrearage

¶ 14. Sidney next takes issue with the chancellor’s ruling that ordered him to pay the arrearage on the mortgage, insurance, and taxes for the marital home. To support his argument, he claims that he should only be obligated to pay $1,500 per month in alimony instead of the $4,500 per month that Melanie alleges he owes. Sidney argues that the Agreement contained a condition precedent that needed to be met in order for the alimony payments to increase — that Melanie no longer work at Sidney’s office. According to Sidney, Melanie never really worked for him; therefore, she was not entitled to increased alimony because she never stopped working for him. Under Sidney’s reasoning, he was not in arrears on any payments because he had been paying $6,000 per month, which included $1,500 for child support, $1,500 for alimony, and $3,000 for other expenses such as the mortgage, taxes, and insurance on the former marital home.

¶ 15. The provision of the Agreement with which Sidney takes issue provides the following:

It is understood and agreed between the herein parties that in the event Melanie Jean Ward Pace is fired, quits, laid off, or her position of employment with Sidney Kelton Pace’s office and/or company is terminated for any reason whatsoever, then the amount of permanent, periodic alimony, shall be increased to four thousand five hundred dollars ($4,500.00), per month.

At trial, Melanie testified that she had performed various work for Sidney at his medical clinic. At the time the parties signed the Agreement, Melanie was no longer working for him; therefore, the condition precedent had already been satisfied.

¶ 16. The amount of the arrearage totaled $87,889.33, which included the following expenses for the former marital home: $62,466 for the mortgage, $10,633.33 for taxes, and $14,790 for insurance. These amounts were documented by Melanie at trial. The chancellor found that Sidney was able to pay the amount of alimony that he agreed to pay and further found that his income had actually increased since the time he signed the Agreement. Sidney agreed that he would pay $4,500 per month in alimony to Melanie if she was no longer working for him. We find no abuse of discretion or manifest error in the chancellor’s ruling that Sidney was responsible for the arrearage claimed by Melanie. Accordingly, this issue is without merit.

III. Refusal to Modify the Property Settlement Agreement

¶ 17. In his third allegation of error, Sidney argues that the chancellor erred by failing to clarify the provisions of the Agreement in which Sidney agreed to pay for medical costs incurred by Melanie and the children and in which he agreed to pay for the children’s college expenses. He cites error with the chancellor’s refusal to apply Duncan, 815 So.2d at 484(¶ 14) in this case. On appeal, Sidney again cites Duncan, but he cites no other authority to support his position.

¶ 18. As previously stated, Duncan addressed an equitable division of marital assets and the corresponding award of alimony as determined by the chancellor. The present case involved an agreement to which both parties voluntarily agreed, and which the chancellor merely approved. The chancellor refused to apply Duncan for that very reason, and we find no error with the chancellor’s ruling. This issue is without merit.

IY. Ambiguity of the Chancery Court’s Judgment

¶ 19. Lastly, Sidney takes issue with the chancellor’s order that Sidney continue to pay the balance of the mortgage on the marital home, as was agreed. Sidney argues that the chancellor’s judgment was vague in that it did not take into consideration the fact that Melanie had refinanced the mortgage. According to Sidney, the judgment failed to state “when the obligation would end or the amount due.”

¶ 20. We disagree with Sidney’s assessment of the chancellor’s judgment. The chancellor clearly specified that:

The Court finds that Ms. Pace refinanced said home in order to receive a portion of the equity from the marital home for family expenses. This Court finds that Dr. Pace is not required to pay said amount of equity realized from the refinancing of the marital domicile, but he is responsible for the balance outstanding at the time of the parties’ divorce. Thus, Dr. Pace is responsible for the amount of the house payment that existed at the time he agreed to the property settlement agreement.

Thus, Sidney’s argument is contradicted by the chancellor’s judgment, which clearly provides that Sidney is only responsible for the amount of the mortgage outstanding at the time he signed the Agreement. This issue is without merit.

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

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION. IRVING, J., NOT PARTICIPATING.

CARLTON, J.,

Dissenting.

¶ 22. I respectfully dissent. I submit that Sidney and Melanie Pace’s property settlement agreement is ambiguous and riddled with conflicting terms and is, therefore, unenforceable due to ambiguity. Simply put, the contradictions and ambiguity prevent this Court from ascertaining the parties’ intent. Moreover, a plain reading of the agreement fails to reflect that there was a meeting of the minds as to the terms. For example, the agreement provides that Melanie shall be awarded all assets and interest that Sidney has or may acquire in his businesses, professional associations, or corporations. Then, the agreement later states that Melanie shall waive any interest in Sidney’s medical practice and business. These terms stand in conflict with one another, and as a result, the chancellor modified certain provisions of the agreement. However, modification of such an ambiguous contract results in a contract written by the court, and it is not the purpose of the courts to make contracts for parties. HeartSouth, PLLC v. Boyd, 865 So.2d 1095, 1109(1141) (Miss.2003) (citations omitted).

1123. Further, since the agreement fails to reflect a meeting of the minds, “[a] court cannot ‘draft a contract between two parties where they have not manifested a mutual assent to be bound.’ ” Ivison v. Ivison, 762 So.2d 329, 336(1123) (Miss.2000) (quoting A Copeland Enterprises v. Pickett & Meador, Inc., 422 So.2d 752, 754 (Miss.1982)). I respectfully submit that due to the ambiguity and conflicting terms of the agreement, the parties’ intent cannot be ascertained, and the agreement fails to reflect mutual assent as to the terms. Hence, I would find the property settlement agreement unenforceable due to such ambiguity. Accordingly, I must dissent from the majority’s holding to affirm the chancellor’s judgment.

      . Testimony revealed that Sidney was seeing another woman, who was pregnant with his child.