author: LEE, C.J., FOR THE COURT:

text:
    BROWN LAKELAND PROPERTIES and Charles H. Brown, Appellants v. RENASANT BANK, Appellee
    NO. 2016-CA-01448-COA
    Court of Appeals of Mississippi.
    February 6, 2018 Rehearing Denied May 29, 2018
    ATTORNEYS FOR APPELLANTS: PAMELA L. HANCOCKJEFFREY BRYAN MCGUIRE, Jackson
    ATTORNEYS FOR APPELLEE: SCOTT R. HENDRIX L. BRADLEY DILLARD ROBERT BRANNON KAHLSTORF, Tupelo
    BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. In this appeal we must decide whether the trial court properly granted summary judgment in favor of Renasant Bank, finding it was entitled to a deficiency judgment against Brown Lakeland Properties LLC (BLP) and Charles Brown (Brown). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In November 2012, BLP executed two commercial promissory notes to Renasant Bank for the loan amounts of $2,880,320.87 (Note One) and $906,786.40 (Note Two). Note One was secured by a 635-acre parcel of land in Yazoo County, Mississippi, and a 2.93-acre parcel of property in Brandon, Mississippi, on which a bowling alley sat. Note Two was secured by a 6.75-acre parcel of land on Old Fannin Road, also in Brandon, Mississippi. At the time the loans were made, Brown executed and delivered to Renasant Bank multiple continuing guaranties related to the notes, and in doing so, individually guaranteed to Renasant the indebtedness due on the notes. BLP defaulted on both loans, and Renasant foreclosed on the properties that had been pledged as security under the notes. Renasant purchased all three parcels at a public foreclosure sale.

¶ 3. In anticipation of the foreclosure sales, Renasant Bank obtained appraisals for all three parcels of land. The appraisals reported that the 2.93-acre, bowling-alley parcel had a market value of $1,500,000 and a disposition value (foreclosure or liquidation value) of $900,000; the 635-acre tract in Yazoo County had a market value of $1,240,000 and a disposition value of $930,000; and the 6.75-acre tract in Brandon had a market value of $1,475,000 and a disposition value of $885,000. In December 2014, at a public foreclosure sale, Renasant purchased the Rankin County properties-the 2.93-acre parcel for $778,100 and the 6.75-acre parcel for $780,000. Renasant purchased the Yazoo County 635-acre parcel for $900,000 at a public foreclosure sale in March 2015. BLP and Brown were given notice of the sales but did not attend either sale or bid on the properties.

¶ 4. In April 2015, Renasant sold the Yazoo County property to a third-party purchaser for an amount greater than that obtained at the foreclosure sale. Accordingly, Renasant applied the excess proceeds of $198,774.44-being the difference between the proceeds from the foreclosure sale and the proceeds from the third-party purchase-as a credit to the indebtedness owed under the notes. Likewise, in May 2015, Renasant sold the Rankin County properties to a third-party purchaser for an amount greater than that obtained at the foreclosure sale. Renasant also applied the excess proceeds from this sale, $228,501.59, as a credit to the indebtedness due under the notes.

¶ 5. After the collateral was liquidated and the excess proceeds from the third-party sales applied as credits to the notes, BLP and Brown remained indebted under the notes and continuing guaranties for the amount of $1,375,824.69. In July 2015, Renasant filed a complaint against BLP and Brown individually, seeking payment for the indebtedness due under the notes and continuing guaranties, as well as attorneys' fees and costs. In September 2015, BLP and Brown filed their answer, generally denying all of Renasant's claims and asserting all available defenses. BLP also filed a counterclaim, alleging that the foreclosure sales should be set aside for inadequate purchase prices, and that Renasant was negligent for failing to sell the properties in a commercially reasonable manner by failing to secure purchase prices that reflected the fair market values of the properties.

¶ 6. In May 2016, Renasant moved for summary judgment, asserting that it was entitled to relief under the terms of the notes and continuing guaranties due to the default of BLP. Renasant also moved for summary judgment with regard to BLP's counterclaim, asserting that there was no genuine issue of material fact regarding the commercial reasonableness of the sale. After a hearing on the motion, the trial court granted Renasant's motion for summary judgment, holding that BLP and Brown owed Renasant $1,416,722.86, which included legal fees, pre- and post-judgment interest, and costs. The trial court also dismissed BLP's counterclaim with prejudice. BLP and Brown now appeal and assert the following issues: 1) Renasant failed to demand the post-foreclosure deficiencies; 2) Renasant failed to establish that its bids represented the fair market value of the properties; and 3) the appraisals of the properties were deficient.

STANDARD OF REVIEW

¶ 7. This Court reviews a trial court's grant of summary judgment de novo. Donovan v. Burwell , 199 So.3d 725, 729 (¶ 10) (Miss. Ct. App. 2016) (citing Evans v. Howell , 121 So.3d 919, 922 (¶ 14) (Miss. Ct. App. 2013) ). Under Mississippi Rule of Civil Procedure 56(c), summary judgment should be granted to the party seeking it, "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 any material fact and that the moving party is entitled to a judgment as a matter of law." We review the evidence in the light most favorable to the nonmoving party. Donovan , 199 So.3d at 729 (¶ 10). However, the party opposing summary judgment "may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." M.R.C.P. 56(e). "If he does not so respond, summary judgment, if appropriate, shall be entered against him." Id.

DISCUSSION

I. Demand for Post-Foreclosure Deficiency

¶ 8. BLP and Brown argue that Renasant "failed to show as a matter of record that any demand for the post-foreclosure deficiencies was ever made," and that this alone should have precluded summary judgment. For support, BLP cites only one case, Gutierrez v. Gutierrez , 153 So.3d 703, 708 (¶ 13) (Miss. 2014), wherein the Mississippi Supreme Court stated, "The record does not contain evidence that demand has ever been made for the deficiency on the second mortgage, which is required under Mississippi law before a mortgagee can collect a post-foreclosure deficiency." However, we do not find that this isolated statement from Gutierrez is applicable to the instant case.

¶ 9. In Gutierrez , an appeal arising from a divorce action, the husband asserted that the chancellor erred in the calculation of assets and liabilities, resulting in an erroneous equitable distribution.

Id. at 707-08 (¶ 10). The parties'-husband and wife-marital home was subject to two mortgages. Id. at 708 (¶ 11). Before trial, the bank holding the first mortgage foreclosed, which covered the first mortgage, but there was a balance remaining on the second mortgage. Id. The chancellor assessed the balance on the second mortgage equally between the husband and wife as a liability, even though the wife had not signed the promissory note and the chancellor had, in his alimony analysis, listed the second mortgage as the debt of the husband. Id. at (¶¶ 11-12). The supreme court's statement that the second mortgagee must make demand was specifically in relation to the fact that the chancellor assigned part of the deficiency on the second mortgage as a liability to the wife without "address[ing] the parties' respective obligations in the event the second mortgagee did obtain a deficiency judgment," and the holder of the second mortgage had not yet evidenced any intention to collect on the remaining balance. Id. at (¶ 13). Gutierrez simply does not apply here. The instant case does not deal with a second mortgage, nor does it deal with a mortgagee who has not shown an intention to collect on the indebtedness owed to it.

¶ 10. Moreover, the record in the instant case supports that demand was made. In his sworn affidavit, Scott Williams, vice president and special-assets officer with Renasant Bank, stated that Renasant had made demand upon BLP as borrower and Brown individually as guarantor, to pay in full the principal and interest due and owing under the notes and guaranties. And finally, under the terms of the promissory note, BLP "waive[d] any required notice of ... demand" and, in the event of default, Renasant could "pursue any remedy available" under the loan documents, at law, or in equity. In a forbearance agreement executed to extend the maturity date of the loan, BLP and Brown acknowledged that the loan documents were valid and enforceable and that it had no defenses. BLP does not dispute that it defaulted, nor does it allege that the foreclosure was wrongful. This issue is without merit.

II. Fair Market Value

¶ 11. In its second issue on appeal, BLP argues that Renasant failed to establish that its bids at the foreclosure sales represented fair market value of the property because its bids were less than the appraised values.

¶ 12. "The creditor has no right to a deficiency judgment until he satisfies the court that it would be equitable, in the light of the sale price, to authorize a deficiency judgment." Hartman v. McInnis , 996 So.2d 704, 710 (¶ 21) (Miss. 2007) (quoting Wansley v. First Nat'l Bank , 566 So.2d 1218, 1225 (Miss. 1990) ). "Something more than a difference between the price paid at the foreclosure and the amount of the indebtedness must be demonstrated before the mortgagee is entitled to a deficiency judgment." Id. (quoting Wansley , 566 So.2d at 1224 ). "Where the foreclosing creditor buys at foreclosure, it must give the debtor fair credit for the commercially reasonable value of the collateral." Id. at 711 (¶ 23) (quoting Wansley , 566 So.2d at 1221-22, 1224-25 ). "To determine the adequacy of the purchase price in satisfying the debt, the mortgagee must establish the fair market value of the property." Id. (citing Allied Steel Corp. v. Cooper , 607 So.2d 113, 118-19 (Miss. 1992) ).

¶ 13. " 'Fair market value' is defined as 'the amount at which property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of the relevant facts.' " Id. (quoting Black's Law Dictionary 414 (6th ed.1991) ). "The determination of the fair market value is a question for the trier of fact ...." Id. (quoting Allied Steel , 607 So.2d at 118-19 ).

¶ 14. Here, Renasant provided evidence concerning the fair market value of both the Rankin County and Yazoo County properties. It hired independent certified appraisers to conduct appraisals in anticipation of the foreclosure sales, and the appraisal reports were completed in August 2014 (Rankin County properties) and January 2015 (Yazoo County property)-both shortly before the properties were sold.

¶ 15. BLP contends that Renasant did not establish the fair market value because it undisputedly purchased the three parcels for less than the foreclosure values by its own appraisals. However, Renasant did not merely demonstrate "a difference between the price paid at the foreclosure and the amount of indebtedness" in support of a deficiency judgment. All three parcels were later sold to third parties, demonstrating "the amount at which property would change hands between a willing buyer and a willing seller," i.e., the fair market value. To the extent that these third-party sales resulted in an amount greater than the price paid at the foreclosure sale, Renasant applied these amounts, in addition to the foreclosure-sale prices, as a credit on BLP's indebtedness. Thus, by applying the credit from the third-party sales, Renasant gave BLP fair credit for the commercially reasonable value of the collateral and, in doing so, BLP was credited with a price greater than that of the appraised disposition values for both the Rankin County and Yazoo County properties. The record demonstrates that in regard to the Yazoo County property, BLP was credited with approximately $170,000 more than the appraised disposition value, and the credit was within approximately $150,000 of the appraised maximum market value. In regard to the Rankin County properties, BLP received credit for $1,786,000-the price at which the properties sold-being $1,000 more than the combined appraised disposition values. Renasant therefore established the fair market value of the properties and credited BLP with the same.

¶ 16. BLP failed to contradict the appraisal values or the third-party sales values with their own appraisals or other expert opinion regarding the fair market value of the property. BLP asserted that it received an offer to purchase a portion of the Rankin County property, and that the amount was greater, per square foot, than that obtained at the foreclosure and third-party sales. Our law is clear, however, that "evidence of mere offers or options to purchase property is not competent to establish [a property's] fair market value." Allied Steel , 607 So.2d at 119. Furthermore, fair market value is not established by extrapolating an inadmissible offer for a part of a parcel as evidence for value of the whole parcel. Thus, BLP failed to present any competent evidence of fair market value to rebut the fair market value established by Renasant.

¶ 17. While BLP argues that there is a genuine issue of material fact regarding the fair market value and sale of the properties, "[a] fact is neither material nor genuinely contested ... merely because one party proclaims it so." Suddith v. Univ. of S. Miss. , 977 So.2d 1158, 1167 (¶ 10) (Miss. Ct. App. 2007). A dispute is "genuine" where "the evidence is such that a reasonable jury could return a verdict for the nonmovant." Frazier v. McDonald's Rests. of Miss. Inc., 102 So.3d 341, 345 (¶ 21) (Miss. Ct. App. 2012) (citing Anderson v. Liberty Lobby Inc ., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ).

¶ 18. Here, there is no evidence that the appraised values or the third-party sales values were not fair market values. A party opposing the motion for summary judgment "must rebut by producing significant probative evidence showing that there are indeed genuine issues for trial." Miller v. Myers , 38 So.3d 648, 651 (¶ 13) (Miss. Ct. App. 2010). The fair market value as established by Renasant was not genuinely disputed by contrary evidence, and BLP failed to meet its burden of rebuttal. Renasant established the fair market value of the properties and demonstrated that there was no genuine issue of material fact with respect to the same. BLP failed to rebut with any competent evidence showing there was a genuine dispute regarding the fair market value and sales price of the properties. Therefore, Renasant established that it was entitled to a deficiency judgment and summary judgment was proper. This issue is without merit.

III. Adequacy of the Appraisals

¶ 19. BLP also asserts that the appraisals were deficient and were "inadequate as a proper metric of value for the subject parcels."

¶ 20. "Three standards are accepted in determining fair market value for real property: (1) the cost approach, (2) the income-capitalization approach, and (3) the market-data or comparative-sales approach." Gulf S. Pipeline Co. v. Pitre , 35 So.3d 494, 498 (¶ 6) (Miss. 2010). "These approaches do not, considered singly, establish value. Each rather is one approach to value, with the appraiser's estimate of value being, in the end, an opinion which is the product of a reconciliation of the indications yielded by the three approaches." Id.

¶ 21. In this case, the Rankin County properties were appraised using the comparative-sales and income-capitalization approaches. The Yazoo County property was appraised using the comparative-sales and cost approaches. The respective appraisals employed the applicable approaches to value, and reconciled the values of the approaches utilized for a final value opinion. BLP criticizes the appraisals stating the approaches used were "either a worthless method, or in some instances, a potentially useful method was not employed." However, BLP does not offer evidence or state with specificity what approach should have been used in the alternative. Nor does BLP offer expert valuation testimony or competing appraisals. The record demonstrates that the appraisal reports were thorough and the methods utilized were well supported.

¶ 22. Again, "[a] fact is neither material nor genuinely contested ... merely because one party proclaims it so." Suddith , 977 So.2d at 1167 (¶ 10). Here, there is no genuine dispute that the appraisals were deficient as Renasant has established that the appraisals utilized the applicable methods and BLP has offered no proof or evidence to the contrary. Additionally, the appraisals were not the only proof of value, as the actual market sales values were present in this case and BLP was given credit for the same. There is no genuine dispute regarding the adequacy of the appraisals or appraisal methods. Thus, this issue is without merit.

¶ 23. With respect to Renasant's claim against Brown individually as a guarantor, Renasant is not required to demonstrate that the foreclosure price was commercially reasonable. See Bosarge v. LWC MS Props. LLC , 158 So.3d 1137, 1143 n.5 (Miss. 2015). "[U]nlike suits where the lender sues the primary borrower, an individual guaranty (as written in the contracts applicable here) does not require foreclosure or fairness of price. The guarantor is immediately liable upon the borrower's ... default." Id. Here, Brown executed continuing guaranties which waived all defenses to the debt owed under the notes. Under the terms of the guaranty, in the event of default, Brown as guarantor would be liable for all the indebtedness under the notes. There is no dispute that BLP defaulted under the notes and, as a result, Brown is liable individually for the indebtedness due to Renasant.

CONCLUSION

¶ 24. Summary judgment is appropriate where there is no genuine issue of material fact, and the movant has established that it is entitled to a judgment as a matter of law. M.R.C.P 56(c). "The mortgagee's right to a deficiency decree usually depends on the facts and circumstances of each case ...." Hartman , 996 So.2d at 711 (¶ 22). BLP and Brown do not dispute that they owe Renasant some money under the notes and continuing guaranties, but rather dispute the amount they owe under the facts and circumstances of this case. However, Renasant has established that it is entitled to a deficiency judgment against BLP and Brown for the remaining indebtedness due under the notes and under the personal guaranty. Despite BLP's and Brown's assertions, they have failed to present any competent evidence contradicting the claims established by Renasant, and thus fail to demonstrate there are genuine issues of material fact. The trial court's judgment for Renasant Bank "against [BLP] and Brown, jointly and severally in the amount of ... [$1,416,722.86], [including] $16,000.00 in legal fees, plus pre- and post-judgment interest at the highest lawful rate, costs and any future accruing reasonable attorneys' fees and expenses of Renasant Bank pursuant to the Notes and related guaranties" is affirmed.

¶ 25. AFFIRMED.

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


source: Caselaw Access Project

author: IRVING, P.J., FOR THE COURT:

license: Public Domain

text:
    Socorro Saylon O'BRIEN, Individually, and as Executrix of the Estate of Carroll J. O'Brien, Appellant v. Susan WESTEDT, Appellee
    NO. 2016-CA-01326-COA
    Court of Appeals of Mississippi.
    April 10, 2018
    ATTORNEY FOR APPELLANT: L. WESLEY BROADHEAD, MENDENHALL
    ATTORNEY FOR APPELLEE: LAURA MCKINLEY GLAZE, FLOWOOD
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. Socorro Saylon O'Brien, individually and as executrix of the estate of Carroll J. O'Brien, appeals the judgment of the Simpson County Chancery Court, granting Susan Westedt's motion for summary judgment.

FACTS

¶ 2. On March 30, 1972, Carroll and his then wife Susan, using money that Susan inherited from her family, purchased 104 acres of land in Simpson County, Mississippi. Title to the property was conveyed to Carroll and Susan as joint tenants with full rights of survivorship, and not as tenants in common. They recorded the deed among the land records of Simpson County on March 30, 1972. On August 12, 1987, Carroll and Susan obtained a judgment of divorce based on irreconcilable differences. Their separation and property-settlement agreement was incorporated into the final decree of divorce and stated in pertinent part:

It is agreed between the parties that all real property jointly owned by these parties shall remain as same now is, with each party owning a one-half undivided interest in all real property and that said real property cannot become community property by any future marriages by either spouse. No disposition of any land holdings may be made while both parties are alive unless by mutual agreement in writing.

¶ 3. On May 18, 1995, without the knowledge or consent of Susan, Carroll used a twenty-five-year-old power of attorney that Susan had signed in 1970, while she was still his wife, to quitclaim title of the 104 acres from Susan and himself to himself and his new wife, Socorro. The acknowledgment portion of the quitclaim deed reflects that only Carroll appeared before the notary and does not reflect that he appeared as Susan's attorney-in-fact pursuant to the power of attorney. On February 22, 2000, again using the same power of attorney, Carroll executed a warranty deed, conveying title of the acreage from himself and Susan to Socorro and himself as tenants by the entirety with full rights of survivorship, and not as tenants in common. Finally, on December 4, 2007, Carroll and Socorro executed a quitclaim deed, conveying the subject property to Socorro. Carroll died on November 19, 2012.

¶ 4. Susan filed a complaint to void the deeds and remove the clouds on her title to the 104 acres of land. Susan alleged that Carroll breached his fiduciary duty by exercising the power of attorney, did not have the authority to unilaterally convey the property, defrauded her of her interest in the property, and was unjustly enriched by the conveyances. Socorro filed an answer and counterclaim, wherein she denied generally the allegations of Susan's complaint and alleged that the doctrines of equitable estoppel, laches, and/or waiver barred Susan from receiving any relief. Socorro also sought reimbursement for one-half of all taxes paid on the land since 1995. Susan filed a motion for summary judgment.

¶ 5. The chancery court found that no written mutual agreement existed that would have allowed Carroll to make any conveyances of the property and that all attempts by Carroll to convey the property after his divorce from Susan should be canceled and set aside. As such, the court found that Susan was the sole owner of the property and granted her motion for summary judgment. Socorro filed a motion for reconsideration, which the chancery court denied, leading to this appeal.

¶ 6. In this appeal, Socorro asserts the following issues: (1) whether Carroll and Susan's joint tenancy was terminated by the May 18, 1995 quitclaim deed; (2) whether the purported conveyance of Susan's undivided one-half interest in the property described in the May 18, 1995 quitclaim deed was void or voidable; (3) whether Susan's complaint seeking to set aside or void the May 18, 1995 quitclaim deed should be dismissed with prejudice as a matter of law because it was filed after the expiration of the applicable statute of limitations; and (4) whether Socorro's statutory homestead right to undisturbed possession and use of the property should have been considered by the court when ruling on Susan's motion for summary judgment.

¶ 7. For the reasons discussed below, we find no error; therefore, we affirm the judgment of the chancery court.

DISCUSSION

¶ 8. "When reviewing a trial court's grant or denial of summary judgment, [appellate courts] appl[y] a de novo standard of review." Anderson v. Alps Auto. Inc. , 51 So.3d 929, 931 (¶ 11) (Miss. 2010). "A motion for summary judgment is to 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 any material fact and that the moving party is entitled to a judgment as a matter of law.' " Id. (quoting Rule 56(c) of the Mississippi Rules of Civil Procedure ) ).

¶ 9. Since the issues are interrelated, issues I and II and issues III and IV will be addressed together, respectively.

I. Joint Tenancy Termination

II. Quitclaim Deed Void or Voidable

¶ 10. Socorro asserts that-because of the failure of the acknowledgment included in the 1995 quitclaim deed to comport with the requirements of Mississippi Code Annotated section 89-3-1 (Rev. 2011)-the purported conveyance of Susan's undivided one-half interest in the property is void or voidable. She argues that the defect in the acknowledgment affects only Susan's undivided one-half interest.

¶ 11. Socorro further argues that the 1995 conveyance by Carroll of his undivided one-half interest in the property to himself and Socorro terminated Carroll and Susan's joint tenancy with full rights of survivorship. She cites Mosby v. Mosby , 962 So.2d 119, 124 (¶ 15) (Miss. Ct. App. 2007), for the principle that a joint tenancy is severed after the conveyance of the property, and the owners then become tenants in common. She contends that, like in Mosby , Carroll made a post-divorce-decree conveyance of his undivided one-half interest, making Susan a co-tenant with himself and Socorro.

¶ 12. Susan responds that the Mosby case clearly stands for the principle that conveyances which thoroughly frustrate the intent of a divorce decree shall be set aside. Id. She claims that, based on the trial court's interpretation and application of Mosby to the undisputed facts of the case, she was entitled to a judgment as a matter of law. She contends that the property-settlement agreement is clear that neither she nor Carroll could dispose of any interest in the real property while both were alive without the written agreement of the other. As previously quoted, the agreement states that "[n]o disposition of any land holdings may be made while both parties are alive unless by mutual agreement in writing."

¶ 13. The chancery court noted that in " Mosby , a divorced husband attempted to thwart the intent of the divorce decree by conveying his one-half interest in the property to his second wife while retaining a life-estate in himself in a scheme to avoid splitting the equity in the property with his first wife." Id. Based on the Mosby case, the court found that the property-settlement-agreement provision governed, and all attempts by Carroll to convey the property after his divorce from Susan should be canceled and set aside. We agree. See also McKinney v. King , 498 So.2d 387, 388 (Miss. 1986) (holding that, "[i]t is fundamental law that an agent owes his principal absolute good faith and fidelity, and he cannot in the exercise of his authority as agent acquire property or interest therein rightfully belonging to his principal without full disclosure and free consent of his principal.").

¶ 14. The property-settlement agreement clearly contemplated that the property would pass by survivorship unless both parties agreed otherwise in writing. "[P]roperty settlements under divorce actions are binding on the parties if fair, equitable and supported by consideration." Weeks v. Weeks , 403 So.2d 148, 149 (Miss. 1981). Socorro does not claim that the property-settlement agreement entered into by Carroll and Susan was unfair, inequitable and not supported by consideration at the time Carroll and Susan executed it. The contract was enforceable, and the conveyances were void; therefore, the original joint tenancy with rights of survivorship was still intact at Carroll's death, and Susan is entitled to the entire property.

III. Statute of Limitations

IV. Homestead Exemption

¶ 15. Susan argues that Socorro pleaded neither any statute of limitation nor any homestead exemption right which she now attempts to argue on appeal. As such, Susan asserts that Socorro waived those defenses. We agree. "One of the most fundamental and long established rules of law in Mississippi is that the Mississippi Supreme Court will not review matters on appeal that were not raised at the trial court level." Shaw v. Shaw , 603 So.2d 287, 292 (Miss. 1992).

¶ 16. In her reply brief, Socorro addresses the homestead exemption issue, but does not discuss her statute of limitations contention. Also in her reply brief, she concedes that the homestead exemption issue was not brought before the trial court and submits that "it would better serve the ends of justice for this Court to apply the homestead statutes or to grant the relief requested in [her] pending [m]otion for [l]eave to [f]ile [a] MRCP 60(b) [m]otion." After the parties had filed their initial briefs, Socorro filed a motion for leave of this Court to file a Rule 60(b) motion in the chancery court. That motion was not ruled on by this Court when it was filed. We now deny the motion.

¶ 17. After a thorough examination of the record, we find no evidence that Socorro brought either the issues of the statute of limitations or the right to homestead exemption before the trial court, either during trial or in her post-trial motion for reconsideration. She is not entitled to relitigate the issues on appeal.

¶ 18. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.


author: WILSON, J., FOR THE COURT:

text:
    Timothy L. BOLTON, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01399-COA
    Court of Appeals of Mississippi.
    April 10, 2018
    ATTORNEY FOR APPELLANT: TIMOTHY L. BOLTON (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE, JACKSON
    BEFORE IRVING, P.J., BARNES AND WILSON, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. Timothy Bolton was indicted for and subsequently pled guilty to two counts of felony child abuse, first-degree arson, sexual battery, and ten felony counts of simple assault on a law enforcement officer. According to the factual basis for Bolton's guilty plea, Bolton locked himself in his home with his wife and two children, ages six and nine; repeatedly forced his wife to perform oral sex on him at knife-point; threatened to kill his wife; barricaded himself and his children in a closet; continually pointed a gun at his children's heads, using them as human shields throughout an overnight standoff with law enforcement; repeatedly threatened to kill the children and deputy sheriffs; and set fires in the closet at least three times, causing the children to be overcome by smoke inhalation. The circuit court accepted Bolton's plea and sentenced him to two consecutive life sentences and additional term-of-years sentences to run concurrently with the second life sentence.

¶ 2. Just under three years after he pled guilty, Bolton filed a motion for post-conviction relief alleging that his guilty plea was involuntary and that his former attorney provided ineffective assistance of counsel. Bolton alleges that his former attorney, Judith Barnett, predicted ("informed [Bolton] that [she] anticipated") that the judge would sentence him to only ten years in prison, with five years suspended and only five years to serve. Barnett confirms this allegation in an affidavit submitted in support of Bolton's motion, although her affidavit does not explain the basis for the prediction. The circuit judge-who also conducted Bolton's plea hearing and imposed his sentence-denied Bolton's motion for post-conviction relief without an evidentiary hearing. Bolton filed a timely notice of appeal and argues that the circuit court erred by rejecting his involuntary plea and ineffective assistance claims and by denying his motion without an evidentiary hearing.

¶ 3. We conclude that the circuit court correctly denied Bolton's motion. His attorney's sentencing prediction was just that-a prediction. Prior to accepting Bolton's plea, the circuit court conducted a thorough plea colloquy and clearly advised him of the applicable statutory maximum sentences and the court's full discretion to impose those sentences. Bolton's plea was voluntary, and his ineffective assistance claim fails as a matter of law. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

Factual Background

¶ 4. On March 3, 2007, Bolton locked himself, his wife, and his two sons, ages six and nine, inside their house. Bolton forced his wife to perform oral sex on him repeatedly at knife-point. Bolton also forced his wife to smoke marijuana laced with methamphetamine. He told her that he was going to kill her after he was through with her, and he wanted the drugs to show up on her autopsy.

¶ 5. Bolton's wife eventually escaped through a window, called 911, and reported that Bolton was barricaded inside the house with their two children. Officers from the Lee County Sheriff's Department arrived at the house around 11 p.m. They made phone contact with Bolton and had several conversations with him, continuing until approximately 3:20 p.m. the following day, when Bolton was finally taken into custody.

¶ 6. During this time, a SWAT team breached the residence and found that Bolton had barricaded himself and the children in a bedroom closet. Bolton was armed with a pistol, and he set fires in the closet at least three times using an accelerant and a butane lighter. Officers managed to keep the door partially opened to allow air in to the children. However, Bolton held his children in front of him, using them as human shields. Bolton continually pointed his gun at his children's heads and told officers that he was going to kill his children unless the officers brought his wife inside to talk to him. Officers would not agree to bring Bolton's wife into the house.

¶ 7. At some point, Bolton crawled to the edge of the closet and began striking a nearby officer in the head with a metal rod, trying to get the closet door closed. Bolton repeatedly threatened to kill his children, and he told his children he was going to kill them. He also threatened to kill the officers and repeatedly pointed his pistol at them.

¶ 8. Later, smoke began to pour out of the closet so thickly that the officers stationed outside the closet had to rotate out of the home for air. Officers then set up fans to pull the smoke out of the bedroom. A doctor on the scene told officers that the door would have to be breached because the children were obviously weakening and could be heard crying out for help. Bolton eventually allowed one of his children to leave the closet. He then turned to his other child, again put the gun to the child's head, told the child that he was going to kill him, and told the police that he would kill them as well.

¶ 9. Around 3:20 p.m., the day after the standoff began, Bolton finally gave himself up. During the entire time that Bolton held his children hostage in the closet, he would not allow them to eat, and he forced them to defecate and urinate in the closet. When the children finally were taken from the closet, they required treatment for smoke inhalation.

Indictment and Guilty Plea

¶ 10. In July 2007, a Lee County grand jury returned a fourteen-count indictment charging Bolton with two counts of felony child abuse, first-degree arson, sexual battery, and ten felony counts of simple assault on a law enforcement officer. Bolton subsequently filed a petition to plead guilty to each of the fourteen charges in the indictment.

¶ 11. Bolton pled guilty on November 6, 2007, following a hearing. At the hearing, the State provided the above narrative as the factual basis for the charges, which the State expected to prove through the testimony or statements of Bolton's ex-wife and the testimony of law enforcement officers, doctors, and emergency medical technicians who responded to the scene.

¶ 12. During a thorough plea colloquy, Bolton admitted that he was guilty of each of the charged offenses and that the State could prove the factual basis for the charges if the case went to trial. Bolton stated that he understood that he was entering an open plea and that the State would not make a sentencing recommendation. Bolton was also thoroughly advised of the minimum and maximum sentences for each count of the indictment.

¶ 13. Bolton twice stated that no one had forced, threatened, or pressured him in any way or "promised [him] anything" in order to get him to plead guilty to all fourteen charges. The court then asked Bolton's attorney, Judith Barnett, whether she had "told [Bolton] anything, led him to believe, or tried to convince him, that he [would] get any specific sentence, that he will be given a specific number of years or ... a specific sentence." Barnett answered, "No, Your Honor." The court then asked Bolton, "[H]as anyone made any representations to you, or have you been promised anything by anyone with regard to what the sentences of this Court may be as to each of your charges?" Bolton answered, "No, sir." Bolton stated that he was satisfied with Barnett's advice and services and that he believed that Barnett had properly advised him and had properly represented his best interest.

¶ 14. Before the court imposed his sentence, Bolton expressed regret, said that he was high on crystal meth when he committed the crimes, and begged for mercy. Bolton's ex-wife similarly testified that she believed that Bolton's crimes were related to his drug use, and she requested leniency. The court then imposed the maximum sentence on each count: a life sentence for each count of felony child abuse, twenty years for arson, thirty years for sexual battery, and five years for each count of simple assault on a law enforcement officer. The court ordered that the life sentences would be served consecutively and that all twelve term-of-years sentences would run concurrently to the second life sentence.

Motion for Post-Conviction Relief

¶ 15. On November 2, 2010, Bolton filed a motion for post-conviction relief. Represented by new counsel, Bolton alleged that Barnett provided ineffective assistance of counsel by recommending that he plead guilty. He also alleged that Barnett's advice rendered his guilty plea involuntary. Bolton's motion relied on his own affidavit and the affidavits of his ex-wife, his sister, his mother, and Barnett.

¶ 16. Barnett's affidavit states that she was scheduled to appear in court with Bolton on November 5, 2007, but she failed to appear because she was in Yazoo County representing another client. No continuance had been granted in Bolton's case, but Barnett "was expecting a continuance," so she did not appear. Barnett says that the circuit judge telephoned her that evening to inquire why she failed to appear. Barnett says that the judge warned her to be in court the following morning or else he would find her in contempt. Barnett appeared in court with Bolton the next day, November 6, 2007. She alleges that the circuit judge "purposefully" called Bolton's case last. She alleges that the judge did so because he "wanted [her] to have to wait" and because "he knew that [she] had to drive back to Jackson."

¶ 17. In any event, Barnett's affidavit confirms that she recommended to Bolton that he enter an open plea to the charges. Barnett says that she "informed [Bolton] that [she] anticipated that he would receive a ten-year sentence with five ... years suspended and with five ... years to serve." Barnett's affidavit does not explain why she expected the court to impose such a sentence for the serious, violent crimes that Bolton committed. Barnett states that she also told Bolton that "if he went to trial and was found guilty, he would likely receive a life sentence." She says that she also explained to Bolton "the sentencing guidelines and the ramifications of both his plea and trial." In her affidavit, Barnett opines that Bolton's "sentence was unreasonably harsh" and unjust.

¶ 18. In his affidavit, Bolton confirms that Barnett told him that she "anticipated" that he would be sentenced to ten years with five years suspended and five to serve. Bolton also states that he relied on Barnett's advice. Bolton also says that Barnett instructed him "to say 'yes' to all the questions during [his] guilty plea [hearing]."

¶ 19. The affidavits of Bolton's sister, Sandra Fuller, and his mother, Marguerite Chiasson, are essentially identical. Both state that Barnett initially "assured [them] that [Bolton] should receive a ten-year ... sentence with a large part of it being suspended." However, Fuller states that the morning that Bolton pled guilty, "Barnett telephoned [her] from the courthouse ... and ... told [her] ... to get to the courthouse as soon as possible because the judge [was] trying to give [Bolton] life in prison." Fuller called Chiasson and met her and Barnett at the courthouse. Both Fuller and Chiasson state that during lunch Barnett "indicated that the judge was very angry and assured us that she could appeal anything."

¶ 20. In her affidavit, Bolton's ex-wife, Deborah Lou Conley, recants her prior statements that Bolton forced her to perform oral sex at knife-point. Conley attributes Bolton's other crimes to crystal meth and depression, and she claims that Bolton "never had any intentions of harming anyone." Conley alleges that "[Barnett] told [her] and [Bolton] several times that she anticipated that he would get a 10 year sentence with 5 years suspended and 5 years to serve." Conley claims that on the day that Bolton pled guilty, Barnett told Bolton that "the judge was very upset with [Barnett]" because Barnett failed to appear in court the prior day. Barnett allegedly told them that they had only two options: he could enter an open plea or he "could fire her and get another lawyer because she was not going to trial."

¶ 21. In September 2011, Bolton filed a motion for summary judgment on his motion for post-conviction relief. In March 2013 and again in March 2014, Bolton filed a "request for hearing" on his summary judgment motion. In January 2015, the circuit court ordered the State to respond to Bolton's motion for post-conviction relief. In March 2015, the State responded and denied that Bolton was entitled to relief. On August 29, 2016, the circuit court entered an opinion and order denying Bolton's motion for post-conviction relief.

¶ 22. Bolton filed a timely notice of appeal. On appeal, he argues that (1) his plea was involuntary, (2) Barnett provided ineffective assistance of counsel, and (3) the circuit court erred by denying his motion for post-conviction relief without an evidentiary hearing.

ANALYSIS

I. Involuntary Guilty Plea

¶ 23. "A guilty plea is valid as long as it is entered voluntarily, knowingly, and intelligently, with sufficient awareness of the relevant circumstances and likely consequences." Worth v. State , 223 So.3d 844, 850 (¶ 19) (Miss. Ct. App. 2017) (quotation marks omitted), cert. denied , 233 So.3d 819 (Miss. 2018). "For a plea to be voluntary, knowing, and intelligent, the judge must advise the defendant of his rights, the nature of the charge against him, and the consequences of his plea, including applicable minimum and maximum sentences." Id.

¶ 24. A defendant's guilty plea may be deemed involuntary if the evidence shows that the defendant was misinformed regarding the applicable minimum or maximum sentence and that the misinformation was never corrected by the defendant's attorney or during his plea colloquy. See Wrenn v. State , 207 So.3d 1252, 1257-59 (¶¶ 15-22) (Miss. Ct. App. 2017). This clearly is not such a case. Bolton understood that he was entering an open plea and that the State was not making any sentencing recommendation. Moreover, Bolton does not allege that anyone misinformed him as to the maximum sentences for any of the offenses to which he pled guilty. The circuit court clearly informed Bolton of the maximum sentence for each charge, that the court had discretion to impose any sentence up to the maximum, and that the court could order the sentences to run consecutively. Bolton confirmed under oath that he understood all of this.

¶ 25. Bolton's claim in this case is different. He does not allege that Barnett misinformed him about any "concrete legal fact"; rather, the "alleged misinformation" in this case is Barnett's "opinion " regarding the sentence that the court would likely impose upon entry of a guilty plea. State v. DiFrisco , 137 N.J. 434, 645 A.2d 734, 743 (1994) (emphasis added) (discussing this difference). Our Supreme Court has held that when a defendant advances such a claim, the threshold "relevant distinction is between a 'generalized prediction' [of a lesser sentence] and a 'firm representation' of such lesser sentence." Myers v. State , 583 So.2d 174, 177 (Miss. 1991) (quoting Sanders v. State , 440 So.2d 278, 287 n.6 (Miss. 1983) (later superseded by statute on other grounds) ). In Myers , the Supreme Court held that a post-conviction petitioner "may find succor only in the latter," i.e., the petitioner may obtain relief only if there is evidence that his attorney made a "firm representation" that he would receive a lesser sentence. Id.

¶ 26. Similarly, the United States Court of Appeals for the Fifth Circuit has held that a defendant's guilty plea is not involuntary simply because it was entered in reliance on his attorney's "prediction, prognosis, or statement of probabilities" as to the defendant's likely sentence. Harmason v. Smith , 888 F.2d 1527, 1532 (5th Cir. 1989). Counsel's prediction that the defendant "probably" would receive a sentence of less than fifteen years was not a "specific, firm ... representation," and it did not render the defendant's guilty plea involuntary. Id. ; accord United States v. Stumpf , 827 F.2d 1027, 1030 (5th Cir. 1987) ("[A] defendant's reliance on his attorney's erroneous prediction of leniency is not sufficient to render a guilty plea involuntary."); Karriem v. State , 57 So.3d 677, 679-80 (¶¶ 5-8) (Miss. Ct. App. 2011) (holding that counsel's "overly optimistic prediction" that the circuit court might apply the non-adjudication statute did not render defendant's guilty plea involuntary); Riggs v. State , 912 So.2d 162, 164-65 (¶ 7) (Miss. Ct. App. 2005) (holding that defense counsel's "generalized prediction" of a lesser sentence upon a plea of guilty is insufficient, in and of itself, to render the plea involuntary).

¶ 27. The distinction between a "generalized prediction" and a "firm representation" is dispositive in this case. Myers , 583 So.2d at 177. Bolton's affidavit and Barnett's affidavit expressly agree that, before Bolton pled guilty, Barnett "informed [him] that [she] anticipated that he would receive a ten-year sentence with five ... years suspended and five ... years to serve." (Emphasis added). Bolton does not allege that Barnett ever promised him a lesser sentence. Nor does Bolton allege that Barnett ever advised him-or that he ever believed-that the circuit judge was required to impose a lesser sentence. What is alleged is that Barnett told Bolton that she "anticipated" that the judge would impose a lesser sentence. Barnett's prediction did not come with any promise or guarantee. In addition, following Barnett's prediction, the circuit court thoroughly informed and warned Bolton of the possible sentences for his crimes if he pled guilty. See Larry v. State , 129 So.3d 263, 265 (¶¶ 7-9) (Miss. Ct. App. 2013) (holding that even if the defendant's attorney "assured" him that he would receive a lesser sentence, the circuit court corrected any misconception by advising the defendant of the applicable maximum sentence during the plea colloquy). Barnett's prediction of a lesser sentence does not render Bolton's subsequent guilty plea involuntary. See Myers , 583 So.2d at 177.

II. Ineffective Assistance of Counsel

¶ 28. "A claim of ineffective assistance of counsel requires proof that counsel's performance was objectively deficient and that the defendant suffered prejudice as a result." Worth , 223 So.3d at 849 (¶ 17) (emphasis added) (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). Under Strickland 's first prong, the defendant must overcome a "strong but rebuttable presumption[ ] that counsel's performance falls within the wide range of reasonable professional assistance." Rankin v. State , 636 So.2d 652, 656 (Miss. 1994). "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland , 466 U.S. at 687, 104 S.Ct. 2052. Under Strickland 's second prong, a defendant "who pled guilty must prove that his attorney's ineffective performance proximately caused the plea-i.e., that but for counsel's errors, the [defendant] would not have entered the plea." Worth , 223 So.3d at 849 (¶ 17). "The defendant has the burden of proof on both prongs." Rankin , 636 So.2d at 656. "If either prong of Strickland is not met, the claim fails." Worth , 223 So.3d at 849 (¶ 17).

¶ 29. Bolton alleges that Barnett provided him with ineffective assistance of counsel, primarily by telling him that she "anticipated" that he would receive a sentence of only ten years with five years suspended and five years to serve. This claim mirrors Bolton's involuntary-plea claim and fails for similar reasons.

¶ 30. To begin with, "[a] voluntary guilty plea waives claims of ineffective assistance of counsel, except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea." Worth , 223 So.3d at 849 (¶ 17) (quoting Thomas v. State , 159 So.3d 1212, 1215 (¶ 10) (Miss. Ct. App. 2015) ). As explained just above, Barnett's advice did not render Bolton's guilty plea involuntary because it was only a prediction of what she "anticipated," not a promise or a guarantee, and because the circuit court thoroughly informed and warned Bolton of the potential sentences that he faced if he pled guilty. Having just held that Bolton's guilty plea was voluntary-and that Barnett's prediction did not render the plea involuntary-we cannot say that the "alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea." Id. ; see United States v. Sweeney , 878 F.2d 68, 70 (2d Cir. 1989) (holding that an unsuccessful claim that counsel's erroneous sentencing prediction rendered defendant's plea involuntary could not be recharacterized as an ineffective assistance claim).

¶ 31. Moreover, we agree with the reasoning of other courts that "have long held that an erroneous sentencing prediction by counsel is not ineffective assistance of counsel where, as here, an adequate plea hearing was conducted." United States v. Shedrick , 493 F.3d 292, 299 (3d Cir. 2007) (collecting cases); accord, e.g. , United States v. Gordon , 4 F.3d 1567, 1570 (10th Cir. 1993) ("A[n] ... erroneous sentence estimation by defense counsel is not a constitutionally deficient performance rising to the level of ineffective assistance of counsel."); Sweeney , 878 F.2d at 70 (holding that an erroneous sentencing prediction-as opposed to objectively "erroneous legal advice about the ultimately knowable"-does not constitute ineffective assistance of counsel);

DiFrisco , 645 A.2d at 746 ("Erroneous sentencing predictions ... do not amount to constitutionally-deficient performance under Strickland. "). In prior cases, this Court has also held that inaccurate sentencing predictions by defense counsel did not constitute ineffective assistance of counsel. See McMickle v. State , 190 So.3d 872, 876-77 (¶ 13) (Miss. Ct. App. 2015) ; Karriem , 57 So.3d at 680 (¶¶ 9-11) ; Davis v. State , 5 So.3d 435, 437 (¶¶ 5-7) (Miss. Ct. App. 2008) ; Riggs , 912 So.2d at 164-65 (¶ 7).

¶ 32. We acknowledge that Barnett's sentencing prediction proved to be profoundly mistaken. We also acknowledge that Barnett's affidavit provides no explanation as to why she "anticipated" that the judge would sentence Bolton to ten years, with only five years to serve, for such serious, violent crimes. In addition, as noted above, the sentencing judge specifically asked Barnett whether she had "told [Bolton] anything, led him to believe, or tried to convince him, that he [would] get any particular sentence, that is that he [would] be given a specific number of years." In response, Barnett stated simply, "No, Your Honor." These facts are concerning. However, notwithstanding these issues, and even accepting Bolton's allegations as true, Bolton and Barnett are in agreement that she only offered a prediction-what she "anticipated." As we have explained above, such a prediction does not call into question the voluntariness of a guilty plea when, as in this case, the court has thoroughly advised the defendant of the potential sentences that he faces upon entry of the plea. In addition, based on Bolton's thorough plea colloquy, the "alleged ineffectiveness" does not undermine "the voluntariness of the giving of the guilty plea." Worth , 223 So.3d at 849 (¶ 17) (quoting Thomas , 159 So.3d at 1215 (¶ 10) ). Therefore, Bolton's ineffective assistance claim is without merit.

III. Evidentiary Hearing

¶ 33. On a motion for post-conviction relief, "[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal ...." Miss. Code Ann. § 99-39-11(2) (Rev. 2015). "If the motion is not [summarily] dismissed ..., the judge shall order the state to file an answer or other pleading ... or to take such other action as the judge deems appropriate ...." Id. § 99-39-11(3). "[A]fter the [State's] answer is filed ..., [the judge] shall, upon a review of the record, determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the motion as justice shall require." Id. § 99-39-19(1).

¶ 34. In this case, the circuit court ordered the State to respond to Bolton's motion, but the court ultimately denied the motion without an evidentiary hearing. On appeal, Bolton argues that he was entitled to an evidentiary hearing. However, for the reasons discussed above, Bolton's claims fail as a matter of law even if we accept as true the allegation, contained in Bolton's affidavit and Barnett's affidavit, "that [Barnett] informed [Bolton] that [she] anticipated that [Bolton] would receive a ten-year sentence with five ... years suspended and with five ... years to serve." This allegation is arguably inconsistent with statements made by Bolton and/or Barnett during Bolton's plea hearing. In addition, there are apparent inconsistencies among certain statements made in the various affidavits that Bolton submitted in support of his motion for post-conviction relief. However, for the reasons explained above, Bolton's present allegations, even if true, do not render his plea involuntary. Nor do his allegations support a viable claim of ineffective assistance of counsel. Because Bolton's post-conviction claims fail as a matter of law, it was unnecessary for the circuit court to hold an evidentiary hearing on his motion. See, e.g. , Pinkney v. State , 192 So.3d 337, 341-42 (¶ 13) (Miss. Ct. App. 2015). Accordingly, this issue is without merit.

CONCLUSION

¶ 35. The circuit court correctly concluded that Bolton's claims fail as a matter of law. Therefore, the court properly denied Bolton's motion without an evidentiary hearing.

¶ 36. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      Bolton and his wife divorced prior to his guilty plea.

      See also , e.g. , Little v. Allsbrook , 731 F.2d 238, 241 (4th Cir. 1984) ("An attorney's 'bad guess' as to sentencing does not justify the withdrawal of a guilty plea and is no reason to invalidate a plea."); Wellnitz v. Page , 420 F.2d 935, 936-37 (10th Cir. 1970) ("An erroneous sentence estimate by defense counsel does not render a plea involuntary. And a defendant's erroneous expectation, based on his attorney's erroneous estimate, likewise does not render a plea involuntary." (citations omitted) ); West v. State , 702 S.W.2d 629, 633 (Tex. Ct. Crim. App. 1986) (quoting Wellnitz , supra , with approval as having "stated correctly" the "general rule for this type of case").


author: GRIFFIS, P.J., FOR THE COURT: IRVING, P.J., DISSENTING:

text:
    Mac Kenzie WILLIS, Appellant v. Lt. WESTLEY, Lt. Brooks and Warden Wendell Banks, Appellees
    NO. 2017-CP-00090-COA
    Court of Appeals of Mississippi.
    April 10, 2018
    MAC KENZIE WILLIS (PRO SE), ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: DARRELL C. BAUGHN, Jackson, ATTORNEY FOR APPELLEES
    EN BANC.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Mac Kenzie Willis appeals the circuit court's dismissal of his complaint for lack of jurisdiction. Because we find the circuit court had jurisdiction, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2. Willis is an inmate in the custody of the Mississippi Department of Corrections (MDOC). In January 2006, Willis was convicted of one count of unlawful touching of a child and one count of statutory rape. He was sentenced to fifteen years for the unlawful touching of a child and twenty years for statutory rape, with the sentences to run concurrently, for a total of twenty years to serve in the custody of the MDOC. At all times relevant to this appeal, Willis was housed at the Central Mississippi Correctional Facility in Rankin County.

¶ 3. On September 12, 2016, Willis was issued a rule violation report (RVR) for the possession of major contraband-electronic devices or parts, specifically a cell phone and battery. A disciplinary hearing was held where the hearing officer, Latisha Brooks, found Willis guilty of possession of major contraband. As a result, Willis received an eighteen-month loss of all privileges.

¶ 4. Willis appealed the hearing officer's decision through the MDOC's administrative-remedy program and claimed a violation of due process. Wendell Banks, a warden with the MDOC, reviewed the appeal and found that Willis had received a fair and impartial hearing. As a result, Willis's appeal was denied.

¶ 5. Willis exhausted his administrative remedies pursuant to Mississippi Code Annotated section 47-5-803 (Rev. 2015) and received notice of the MDOC's final decision on November 10, 2016. On December 9, 2016, Willis filed a complaint for judicial review in the Circuit Court of Rankin County pursuant to Mississippi Code Annotated section 47-5-807 (Rev. 2015). The circuit court summarily dismissed the complaint for lack of jurisdiction on December 27, 2016. Willis now appeals and argues he was denied his constitutional right to due process.

ANALYSIS

¶ 6. The circuit court summarily dismissed the complaint for lack of jurisdiction. Jurisdictional issues are reviewed de novo. Miller v. Provident Advert. & Mktg. Inc ., 155 So.3d 181, 187 (¶ 15) (Miss. Ct. App. 2014). Additionally, "[t]he appellate standard of review as to dismissal of actions on the pleadings is de novo." Horton v. Epps , 20 So.3d 24, 30 (¶ 15) (Miss. Ct. App. 2009).

¶ 7. The circuit court did not explain why it lacked jurisdiction. Further, the circuit court did not specify whether it considered subject matter jurisdiction or personal jurisdiction. Instead, in support of its dismissal for lack of jurisdiction, the circuit court simply cited Moore v. Mississippi Department of Corrections , 936 So.2d 941 (Miss. Ct. App. 2005).

¶ 8. In Moore , the circuit court found it lacked jurisdiction since Moore failed to file his petition in the county where he was detained and failed to file his petition within the statutory thirty-day period following receipt of the MDOC's final decision. Id . at 944 (¶¶ 13-15). On appeal, we affirmed the circuit court's dismissal of Moore's petition and found "that there were ample reasons for finding that the [circuit] court lacked jurisdiction ...." Id . at (¶ 16).

¶ 9. Here, unlike in Moore , the record shows Willis filed his complaint for judicial review in the county where he was detained, i.e., Rankin County. Thus, although not specifically noted, we assume the circuit court's dismissal for lack of jurisdiction was based upon Willis's failure to timely seek judicial review of the MDOC's final decision.

¶ 10. Under section 47-5-807, any offender aggrieved by an adverse decision may seek judicial review "within thirty (30) days after receipt of the [MDOC's] final decision." The record indicates Willis filed his complaint for judicial review in the circuit court within thirty days after receipt of the MDOC's final decision, as required by section 47-5-807. However, it appears that when Willis filed his complaint in the circuit court, he failed to attach or include any documentation that showed when he received the MDOC's final decision. Without such documentation, the circuit court was unaware that Willis had in fact exhausted his administrative remedies and timely sought judicial review.

¶ 11. In Horton v. Epps , 20 So.3d 24, 29 (¶ 14) (Miss. Ct. App. 2009), the circuit court dismissed an inmate's action for his failure to seek judicial review within thirty days after receipt of the MDOC's final decision. Following the dismissal of his action, the inmate filed documentation that showed he had in fact timely filed his petition. Id . at 30 (¶ 14). On appeal, the MDOC argued that "[t]he [circuit] court's findings in its ... [o]rder of [d]ismissal were entirely reasonable based on the record before the court at that time" since "[a]ll the evidence before the [circuit] court indicated that Horton did not seek judicial review within the 30-day time period required by law." Id . at (¶ 15). However, we found that although the circuit court was presented with an incomplete record, we "[had] no choice but to reverse the circuit court's finding that th[e] action [was] time-barred for failure to timely file a notice of appeal." Id .

¶ 12. Here, as in Horton , it appears the circuit court was presented with an incomplete record. Although Willis claims to have submitted "a copy of the ARP and a copy of the RVR with his [complaint for] judicial review," the record does not indicate that such documents were filed with the circuit court. Nevertheless, the appellate record includes a copy of the MDOC's final decision, which shows the date Willis received notice of that decision. The record shows that Willis did in fact seek judicial review within thirty days of receipt of the MDOC's final decision, as required by section 47-5-807. Thus, the circuit court had jurisdiction over Willis's complaint.

¶ 13. While the circuit court did not state why it lacked jurisdiction, it cited and relied upon Moore in support of its dismissal. In Moore , insufficiency of process or insufficiency of service of process were not reasons for the circuit court's dismissal for lack of jurisdiction. In fact, process or service, or the lack thereof, was not an issue at all in Moore . Thus, the circuit court's dismissal of Willis's complaint for lack of jurisdiction was not based on his failure to properly serve the respondents.

¶ 14. Mississippi Code Annotated sections 47-5-801 through 47-5-807 confer jurisdiction to the circuit court to entertain RVR appeals from inmates once they exhaust administrative remedies. Id. at 80 (¶6). Based on the record before us, the circuit court judgment does not indicate whether the court determined it did not have subject matter jurisdiction or personal jurisdiction. We have concluded that the circuit court's judgment ruled that it did not have subject matter jurisdiction, and this decision was in error. The circuit court does in fact have subject matter jurisdiction, and the circuit court's consideration of personal jurisdiction issues may be considered further on remand.

¶ 15. Because Willis exhausted his administrative remedies and sought judicial review within thirty days of receipt of the MDOC's final decision, the circuit court had subject matter jurisdiction over Willis's complaint pursuant to sections 47-5-803 and 47-5-807. See Siggers v. Epps , 962 So.2d 78, 80-81 (¶ 7) (Miss. Ct. App. 2007) ("Siggers exhausted his administrative remedies and then sought judicial review within thirty days of the MDOC's final decision[;] [t]herefore, the circuit court had jurisdiction over Siggers's complaint pursuant to sections 47-5-803 and 47-5-807."). Although the circuit court was presented with an incomplete record due to Willis's failure to file certain documentation, such failure does not preclude reversal of the circuit court's dismissal of the action. Horton , 20 So.3d at 30 (¶ 15). Accordingly, we reverse and remand this case to the circuit court for further review.

¶ 16. REVERSED AND REMANDED.

LEE, C.J., BARNES, FAIR, WILSON, GREENLEE AND TINDELL, JJ., CONCUR. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY CARLTON AND WESTBROOKS, JJ.

IRVING, P.J., DISSENTING:

¶ 17. The majority finds that the circuit court erred in dismissing Willis's complaint against two employees of the Mississippi Department of Corrections (MDOC) and Warden Wendell Banks for lack of jurisdiction. I disagree; therefore, I dissent. I would affirm the judgment of the circuit court.

¶ 18. In arriving at its decision, the majority makes certain factual assumptions because the circuit court's order dismissing Willis's complaint does not set forth a factual basis for the court's conclusion that it lacked jurisdiction. Therein lies the rub. A careful examination of the docket makes clear that Willis never served his complaint upon the Attorney General of the State of Mississippi (attorney general) as he was required to do, since his complaint was against employees of MDOC for actions taken in their official capacity.

¶ 19. In his complaint, Willis lists Lieutenants Westley and Brooks as disciplinary hearing officers with the MDOC Central Mississippi Correctional Facility (CMCF) in Pearl, Mississippi. He lists Banks as the Warden of the CMCF.

¶ 20. Rule 4(d)(5) of the Mississippi Rules of Civil Procedure provides in pertinent part:

The summons and complaint shall be served together. Service by sheriff or process server shall be made as follows:
(5) Upon the State of Mississippi or anyone of its departments, officers or institutions, by delivering a copy of the summons and complaint to the Attorney General of the State of Mississippi.

¶ 21. The certificate of service attached to Willis's complaint indicates that he served the complaint by United States mail, postage prepaid, on the following:

Becky Boyd, Circuit Clerk Warden Wendell Banks Post Office Box 1599 CMCF, Post Office Box 88550 Brandon, MS 39043 Pearl, MS 39208 District Court Clerk Fifth Circuit Appeal Court Clerk 501 East Court St., Suite 2500 600 S. Maestri Place Jackson, MS 39205 New Orleans, LA 70130-3408.

¶ 22. I find that the record, as discussed above, supplies an adequate factual basis such that this Court can say with confidence that Willis failed to obtain process on the respondents in the circuit court, thereby robbing that court of in personam jurisdiction of the defendants. Since the circuit court did not acquire in personam jurisdiction of the defendants because Willis failed to serve process on them, this Court's jurisdiction suffers from the same defect. Therefore, I would affirm the dismissal of Willis's complaint for that specific reason.

¶ 23. Appellate courts "are not restricted to [a circuit] court's rationale or its reasons for the result it reached. On appeal, [an appellate court] will affirm a decision of the circuit court where the right result is reached even though [the appellate court] may disagree with the reason for that result. Stewart v. Walls , 534 So.2d 1033, 1035 (Miss. 1988).

¶ 24. In McClurg v. State , 870 So.2d 681 (¶ 2) (Miss. Ct. App. 2004), McClurg, an inmate in MDOC's custody, filed a complaint against the State of Mississippi, arguing that he was required to serve more time than similarly situated inmates before being eligible for parole. We found that McClurg "should never have been allowed to proceed on appeal ... and that the original suit should have been dismissed for failure to properly name and serve the actual parties in interest, namely the Parole Board and Department of Corrections." (Emphasis added). Id. at 682 (¶ 6).

¶ 25. On December 9, 2016, Willis filed a complaint for judicial review in the Circuit Court of Rankin County pursuant to Mississippi Code Annotated section 47-5-807 (Rev. 2015). Once a complaint has been filed in the circuit court, our rules of civil procedure require that the complaint and a summons be served on the defendant and that the defendant serve his answer within thirty days after the service of the summons and complaint. M.R.C.P. 4, 12.

¶ 26. I note that the clerk's papers do not show that a summons was ever requested or issued for service upon anyone-not upon Warden Banks, who was the only state-agency defendant listed in Willis's certificate of service, nor upon the attorney general. I am mindful that Rule 4(h) gives a plaintiff 120 days to serve the complaint and summons on a defendant and that a dismissal prior to 120 days would be premature. Here, the dismissal occurred eighteen days after the complaint was filed. However, in light of the fact that no summons was ever requested, it seems reasonable to me to conclude that Willis, for whatever reason, had no intention of serving the attorney general.

¶ 27. The State raised the jurisdictional argument in its brief, and Willis filed a rebuttal brief but did not address the issue in his rebuttal brief after being alerted by the State that process had not been obtained on the attorney general. The State, citing Mansour v. Charmax Industries, Inc ., 680 So.2d 852, 853 (Miss. 1996), points out that "[i]f the court does not have service of process or an appearance of an individual, then that court lacks jurisdiction." I agree. While section 47-5-807 gives the circuit court subject matter jurisdiction, it does not confer in personam jurisdiction over a defendant named in a complaint and against whom relief is sought. That has to be acquired by service of process pursuant to Rule 4.

¶ 28. While I do not necessarily disagree with the majority that the circuit court may have erroneously concluded that it did not have subject matter jurisdiction, that is not the point of this dissent. The point is that the circuit court did not have in personam jurisdiction over the defendants, and the State has not waived jurisdiction, as the first issue that the State asserts in its brief is that this Court should dismiss for lack of jurisdiction. In any event, more than 120 days have now passed since Willis filed his complaint without having it served on the State; therefore, no action can be taken on that complaint unless Willis can show good cause why no service was made within the 120 days.

¶ 29. I cannot imagine how Willis can show good cause in light of the fact that he did not list the attorney general in his certificate of service. Had he done so, it would at least have indicated that he was aware that the attorney general had to be served and that Willis might have had plans of serving him at some point. Additionally, as stated and based on a perusal of the clerk's papers, Willis never requested that a summons be issued. So the majority's decision to reverse and remand to the circuit court for further review is tantamount to mandating the circuit court to hear a case even though it lacks jurisdiction over the defendants. On the other hand, if it is the view of the majority that on remand the circuit court is permitted to determine if it has in personam jurisdiction of the defendants and dismiss the complaint if it determines that it does not, then the majority ought to say so. Otherwise, there is a good chance that the circuit court may interpret the majority opinion as mandating a review of Willis's appeal on the merits.

¶ 30. The record clearly shows that the circuit court did not acquire in personam jurisdiction over the appellees. The majority ignores the significance of this fact and reverses and remands, presumably for the purpose of the circuit court hearing Willis's appeal on the merits. As stated, we, as an appellate court, may affirm a decision of the circuit court where the right result is reached even though we may disagree with the reason, as determined by the trial court, for that result. I would affirm the judgment of dismissal. While the dismissal may have been premature, nothing in the record suggests that Willis was attempting to obtain service at the time of the dismissal or that he was even aware of his need to serve the attorney general. And more importantly, when the deficiency in process was pointed out to Willis by the State, he did nothing.

¶ 31. For the reasons presented, I dissent.

CARLTON AND WESTBROOKS, JJ., JOIN THIS OPINION.

      Willis claims both Lt. Westley and Lt. Brooks were employed with the MDOC as disciplinary hearing officers. However, the RVR lists only Brooks as the hearing officer.

      In its judgment of dismissal, the circuit court noted that the MDOC's decision on the RVR was made September 12, 2016, which would indicate that the complaint, filed December 9, 2016, was untimely. However, as the record shows, September 12, 2016, was the date the RVR was issued. The MDOC's final decision was not made until November 2, 2016, with notice to Willis on November 10, 2016.

      The documentation was submitted by both Willis and the MDOC.