source: Caselaw Access Project

author: CHAMBERLIN, JUSTICE,

license: Public Domain

text:
    Ernest LANE, III, as Executor of the Estate of James Oldrum Smith, Jr. and Limestone Products, Inc. v. Ronald D. LAMPKIN
    NO. 2016-CA-00941-SCT
    Supreme Court of Mississippi.
    07/20/2017
    Rehearing Denied September 21, 2017

      ATTORNEYS FOR APPELLANTS: HARRIS H. BARNES, III, JAMES WILLIAMS JANOUSH
    ATTORNEYS FOR APPELLEE: DAVID" W. MOCKBEE, D. WESLEY MOCKBEE
    BEFORE DICKINSON, P.J., KING AND CHAMBERLIN, JJ.
   CHAMBERLIN, JUSTICE,

FOR THE COURT:

¶ 1. The Chancery Court of Warren County, First Judicial District, found that Ronald Lampkin had breached his fiduciary duties to Limestone Products, Inc. (“Limestone”). Lampkin and James Old-rum Smith'Jr. jointly owned and operated Limestone with a line of credit personally guaranteed by each of them. Upon Smith’s death and his estate’s refusal to guarantee the line of credit, Lampkin formed Delta Stone, a new corporation which operated on the same property, used the same facilities, and sold rock to the same clients to whom Limestone had sold.

¶ 2. Lampkin sought a declaratory judgment against'the estate that he was not violating his fiduciary duties to Limestone. The executors of the estate counterclaimed for lost profits arid attorney’s fees. At the liability stage of the bifurcated trial, the chancellor determined that Lampkin had breached his fiduciary duty to Limestone by usurping a corporate opportunity. In the damages, stage of the trial, the chancellor considered expert testimony, awarded damages, and denied the executors’ request for attorney’s fees, expert-witness fees, and punitive damages. The executors appealed and the Court of Appeals affirmed. Lane v. Lampkin, 176 So.3d 62, 75 (Miss. Ct. App. 2014) (Lampkin I). This Court granted certiorari, reversed the Court of Appeals and found that the chancellor had abused his discretion in calculating the damages award. Lampkin II, 175 So.3d at 1231. This Court remanded for the chancellor to re-evaluate damages. Id.

¶ 3. On remand, the chancellor reassessed the damages due to Limestone as a result of Lampkin’s breach of his fiduciary duties. Aggrieved, the executors appeal again. As explained below, we affirm in part and reverse and render in part.

FACTS AND PROCEDURAL HISTORY

¶ 4. Quoting from Lampkin II:

In 1995, Lampkin and Smith formed Limestone, which they operated on land they jointly owned in Warren County. Lampkin and Smith each owned a one-half interest in the corporation, which bought and sold rocks. Lampkin also owned Lampkin Construction, which became one of Limestone’s biggest customers.
For ten years, Limestone operated on a line of credit personally guaranteed by both Lampkin and Smith. The line of credit was set to expire in September 2006. In August 2006, Smith died, and his stock in the corporation and his interest in the real property transferred to the Estate. Prior to the expiration of Limestone’s line of credit, Lampkin secured an extension until December 8, 2006, to provide the Estate with time to determine whether it would guarantee the loan. Between September 2006 and December 2006, the parties discussed renewing the line of credit. However, the Estate failed to provide a guarantee before the deadline. Lampkin then formed a new corporation, Delta Stone, which began operating in January 2007. Delta Stone performed the same functions as Limestone, and through his new company, Lampkin completed Limestone’s contracts and satisfied its debt obligations.
Lampkin filed a lawsuit against the Executors in Warren County Circuit Court,... The Executors filed a counterclaim against Lampkin for present and future profits the corporation lost due to Lampkin’s actions and for at-tomey[’]s[ ] fees. [Ojne of the [Ejxecú-tors[ ] also filed a motion to transfer the matter to Warren County Chancery Court.
The circuit court judge entered an order finding the matter to be proper for a declaratory judgment. Further finding that the chancery court possessed proper jurisdiction over the subject matter of the declaratory-judgment action, the circuit court judge granted the motion to transfer the matter to chancery court. In an order entered by the Warren County Chancery Court, all the chancellors recused themselves from the case, and the Mississippi Supreme Court appointed a special judge to preside over the proceedings.
Following the chancellor’s ruling that Lampkin breached his fiduciary duty to Limestone by starting Delta Stone and usurping a corporate opportunity, the parties presented evidence as to the damage that resulted from Lamp-kin’s breach of duty. Both parties hired an expert to testify as to the valuation of Limestone. Lampkin hired Brent Saunders, and the Executors hired James Koerber. The chancellor accepted both experts as certified public accountants and experts in the field of business valuation.
... Koerber’s expert report indicated that between 2000 and 2007, Limestone’s average net income was $20,914.00. Koerber opined that, in total, 649,203 tons of rock were diverted from Limestone between 2003 and 2011. This unreported rock was, beginning in 2007, diverted to Delta Stone: “you’ve got all of this unreported rock that went through say Delta [S]tone and then some that should have been attributable to Limestone.” Based on the unreported rock, Koerber testified that Limestone had incurred lost-profit damages of $1,095,281. Additionally, Koerber calculated that the lost-profit damages from 2011 through 2012 had been $270,804.00, which he based on “the average of 2007, 2008, 2009, and 2010’s lost profits.” Koerber estimated that lost profits amounted to $1,366,085, which he rounded down to $1,366,000. He then added $169,129 to that figure, to account for loss of assets, bringing the total loss to $1,535,129. The chancellor indicated in his valuation order that “the Smith estate’s portion, based on Koerber’s figures, would be $767,564.50,”
Saunders, Lampkin’s expert, testified that the rock was not “unreported,” as Koerber had stated, but that Lampkin had “moved the tons from Limestone to Delta Stone.” According to Saunders, the tons of rock “may be unreported in Limestone but we’ve got a accounting and analysis” which shows that “they just moved over to Delta Stone because [Lampkin] kept on running the thing just like he was doing before.” Instead of conducting a lost-profits analysis, Saunders conducted a valuation of the “net book value” of Limestone. As of 2006, the year Smith died, Saunders opined that the net book value was $165,000. The 2007 valuation, according to Saunders, was $156,000: According to the chancellor, “[a]fter deductions, Saunders addéd the value of the corporation’s remaining assets” and “arrived at a total net book value of $125,546.32.” Saunders stated that $62,773.16 was owed to the Smith estate.
The chancellor then conducted an independent assessment of the damages, which he chronicled in a Judgment on Valuation of Business. He acknowledged Saunders’s calculation of net book value, including deductions, at $125,546.32. He opined that “in making an assessment of lost 'profits from January 1, 2008[,] forward the more fair assessment of damages would be that of historical lost profits.” He then took into consideration Koerber’s calculation of average yearly net income of $20,914, multiplied that figure by five, representing the years 2008 through 2012, and concluded that the “historical lost profits” amounted to-$104,570. Therefore, “[utilizing the net book value provided by Saunders, in addition to the historical costs, the Court finds that the total sum of damages due to Limestone Products totals $230,116.32.” The chancellor ordered •Lampkin to pay $230,116.32 [to Limestone] “as a result of his usurpation of corporate opportunity,” or otherwise $115,058.16 [to the Estate], in the event the parties reached an agreement to dissolve the corporation. The chancellor denied the ■ executors’ request for attorney[’]s[] fees, expert-witness fees, and punitive damages.
Aggrieved, the executors appealed the chancellor’s judgment, and the case was assigned to the Court of Appeals.' The Court of Appeals affirmed, finding that the chancellor had not abused his discretion in the methods he employed to assess the damages owed to Smith’s estate, in determining that Lampkin’s expert had accounted for the unreported rock, in failing to award damages based on unpaid rent due to Limestone, and in failing to award costs to Smith’s-estate. After filing the requisite motion for rehearing in the Court of Appeals,, the executors timely filed [a] ... petition for a writ of certiorari .... The executors of Smith’s estate assert[ed] that the chancellor employed the wrong analysis in assessing damages, that the chancellor failed to take into account the unreported rock in assessing damages, that the chancellor failed to award damages based on unpaid rent due to Limestone, and that the chancellor failed to . award attorneys’ fees, expert-witness fees, and punitive damages to the Smith Estate.

Lampkin II, 175 So.3d at 1223-27 (quoting Lampkin I, 176 So.3d at 88-91).

¶ 5. In Lampkin II, this Court reversed the judgment of the Court of Appeals and found that the chancellor had abused his discretion in awarding damages. Lampkin II, 175 So.3d at 1231. This Court held that

The chancellor’s calculation of “historical net book value” was misleading because it did not account for a rock price increase after Lampkin’s breach, and also because it was, without -explanation, based only on the years 2008 through •2012. The chancellor’s business valuation ignored our precedent which instructed him to calculate the “entire loss suffered by the corporation” as a result of Lamp-kin’s breach of fiduciary duty and usurpation of corporate opportunity.

Id. at 1229-30. This Court also remanded for the chancellor “to take into account the unreported rock in his calculation .of lost future profits” and “reconsider whether the Smith estate is, entitled to lease, proceeds from 2007 ... onward” Id. at 1230-31. In sum, the chancellor on remand was to evaluate the “entire loss” to Limestone by considering: (1) the rock price increase after Lampkin’s breach, (2) the time frame of the loss, (3) the unreported rock and (4) the lease.

¶ 6. Upon remand from Lampkin II, the chancellor, by agreed order, allowed Lampkin to amend his complaint. In the amended complaint, Lampkin requested that he receive the “reasonable rental value” for his one-half interest in the property that was subject to the lease from Big River Shipbuilders, one of Smith’s businesses that also operated on the same property.

¶7. On May 23, 2016, the chancellor entered his Judgment on Remand. At the outset, the chancellor recognized th'at the parties had determined the record was complete and had provided additional briefing and argument in the form of proposed judgments. After a review of the record, though, we did not find any proposed judgments from the parties. Lamp-kin submitted' an additional brief to the chancellor before his Judgment on Remand. No additional briefing or supplementation from the estate is in the record. The chancellor also recognized that this Court instructed him to evaluate the entire loss suffered by Limestone.

¶ 8. The chancellor first valued the damages due to the estate for lost assets at $36,811.50. This figure was calculated by examining Limestone’s assets on December 31, 2006, and subtracting Limestone’s assets it still had in 2012 along with various expenses the estate owed Limestone.

¶9. Next, the chancellor calculated the entire loss suffered by Limestone. Under this calculation, Limestone was owed $288,177.02, of which the estate was owed half — $144,088,51., In calculating this figure, the chancellor found that the damages period for lost profits should be calculated from 2007 through 2012. To calculate Limestone’s lost profits, the chancellor used Koerber’s figure of 89.15 percent for the cost of goods sold by Limestone. The chancellor then added an amount for shrinkage, the amount of rock lost in transport to Limestone, arriving at a total figure of 90 percent for the cost of goods sold. The chancellor noted that this figure was less than the actual cost of goods sold by Limestone and Delta for the years 2007 and 2008. The chancellor next calculated the average operating expense per year at $281,055.40 by averaging five years of actual expenses from the companies from 2003 through 2007. Again, the chancellor noted that this number was somewhat lower than the actual sales reflected by Delta Stone. Using these figures, the chancellor estimated the lost profits due to Limestone as $240,147.52.

¶ 10. The chancellor then turned to the issue of unreported rock. Beginning his analysis, the chancellor recognized, “this court does not find that either Lampkin or Smith operated Limestone Products to either shareholder’s detriment in the period before ... Smith’s death in August of 2006.” After reviewing the expert reports, the chancellor determined that he could account for all but 36,000 tons of unreported rock, which he valued at $36,000 per an early agreement by Lampkin and Smith that Lampkin could purchase his rock at $1 per ton plus costs. The estate, therefore, was owed $18,000 for the unreported rock under the chancellor’s calculations.

¶ 11. The chancellor next analyzed the amount due Limestone under the lease agreement. Recognizing a partition judgment, entered on November 9, 2011, held that Lampkin was the sole owner of the land on which Limestone had operated, the chancellor calculated the amount of rent due to the estate from 2007 through November 2011. Under the lease, the estate was due $2,000 a, month, which totaled $118,000, •

¶ 12. Last, the chancellor found that Lampkin was entitled to a $96,000 setoff— for management of Limestone after Smith’s death — which would be applied against the estate’s damages award. Applying this setoff, the chancellor determined that the estáte was owed $220,900.01.

¶ 13. Aggrieved, the estate now appeals and Lampkin cross-appeals. The estate raises several issues which we restate for clarity. First, the estate argues that the chancellor erred in his lost-assets calculation. Second, the estate maintains that the chancellor erred in calculating the lost profits due to Limestone. Third, the estate finds error in the chancellor’s valuation of the unreported rock. Fourth, the estate argues that the chancellor erred in his calculation of damages under the lease. Fifth, the estate claims that the chancellor should have awarded it attorney’s fees.Tn response, Lampkin cross-appeals one issue, arguing that the chancellor erred in his calculation of damages under the lease.

STANDARD OF REVIEW

¶ 14. “We always review a chancellor’s findings of fact, but ... will not disturb the factual findings of a chancellor when supported by substantial evidence unless [we] can say with, reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard.” Lane v. Lampkin, 175 So.3d 1222, 1227 (Miss. 2015) (internal quotations omitted). This Court reviews questions of law under a de novo standard. Id. Further,

[i]n the context of a damages assessment, which is a finding of fact, “the appellate court must review the damages award by looking to the ‘facts of each case.’ ” We have held that “damage awards are only overturned when the trial judge has abused his discretion or ‘in exceptional cases where such awards are so gross as to be contrary to right reason.’ ”

Id. (quoting Greater Canton Ford Mercury, Inc. v. Lane, 997 So.2d 198, 206 (Miss. 2008); Texaco, Inc. v. Addison, 613 So.2d 1193, 1202 (Miss. 1993)).

ANALYSIS

I. Lost Assets Calculation

Íí 15. The estate first argues that the chancellor erred by reducing the lost-assets calculation by $55,104 in his judgment on remand. Lampkin agrees that $55,104 was incorrectly deducted from the asset calculation. Therefore, we reverse and render on this issue and hold that one-half, $27,552, should be added back to the amount due to the estate for a lost-assets total of $64,363.50.

II. Lost Profits

¶ 16. In Mississippi, a party may recover for loss of future profits “as long as such profits are proved with reasonable certainty, not based on speculation or conjecture.” Lovett v. E.L. Garner, Inc., 511 So.2d 1346, 1353 (Miss. 1987). “This Court has stated that ‘there are no guidelines set in stone specifying the degree of certainty that we require of parties in proving loss of future profits.’ ” Lane v. Lampkin, 175 So.3d 1222, 1228 (Miss. 2015) (quoting Lovett, 511 So.2d at 1353). Further, “the degree of proof required usually depends on the particular facts of the case.” Lovett, 511 So.2d at 1353. This Court has been clear that:

Liability cannot be escaped on the grounds that the proof as to the amount of damages, if any, is too uncertain to justify the lower court’s award. It is well recognized that “Mississippi is equally firm in its determination that a party will not be permitted to escape liability because of the lack of a perfect measure of damages his wrong has caused.”

R & S Dev., Inc. v. Wilson, 534 So.2d 1008, 1012 (Miss. 1988) (quoting Johnston v. Safeco Ins. Co. of Am., 727 F.2d 548, 551 (5th Cir. 1984)).

¶ 17. Within the context of recovering lost profits due to a breach of fiduciary duty, this Court has recognized that:

Although recovery of profits may be awarded where one who breaches a fiduciary obligation makes profits in excess of the loss caused by the breach, ... one who breaches a fiduciary obligation is responsible for the entire loss suffered by the corporation as a result of the breach. This liability is not limited to the recovery of profits or to “out-of-pocket” loss.

Aqua-Culture Techs., Ltd. v. Holly, 677 So.2d 171, 183-84 (Miss. 1996) (quoting Norte & Co. v. Huffines, 288 F.Supp. 855, 864 (S.D.N.Y. 1968)). The Huffines court found that, in the context of a shareholders’ derivative suit, the “entire loss suffered by the corporation” as a result of a fraudulent stock exchange should be “measured under the ‘loss of the bargain’ rule.” Huffines, 288 F.Supp. at 864. Within this context, the damages due to a corporation are measured by the difference between the value of what the corporation would have received if the false and misleading representations as to the value of the stock were true and the value of what the corporation actually received. Id.

¶ 18. While lost profits due to a usurped corporate opportunity cannot be measured in exactly the same manner as damages due to a fraudulent exchange of stock, the principie undergirding the “loss of the bargain” rule applies here. The estate is due damages calculated as one-half of the difference between the value of the lost profits Limestone would have received if Lampkin had not usurped Limestone’s-corporate opportunity and the value of what Limestone actually did receive. See Huffines, 288 F.Supp. at 864. Here, the chancellor’s award accords with this principle and was not an abuse of the chancellor’s discretion.

¶ 19. The chancellor consistently cited the fact that he was' calculating the entire loss to Limestone pursuant to this Court’s instructions on remand. In order to do this, the chancellor looked to the evidence in the record to calculate two figures: (1) the cost of goods combined with the shrinkage factor and (2) the average operating expense figure. The chancellor used portions of Koerber’s reports to calculate these two figures. Next, the chancellor used these figures and the gross sales from Delta Stone, for the years 2007 through 2011' to calculate the lost profits due to Limestone.

¶ 20. The estate strenuously argues that the chancellor’s reliance on these figures from Koerber’s financial analysis was error. The estate argues that, instead, the chancellor should have accepted Koerber’s calculation of lost profits in his forensic analysis. It is settled law, however, that the admission or exclusion of expert testimony is within the discretion of the chancellor. Giannaris v. Giannaris, 960 So.2d 462, 469 (Miss. 2007). The chancellor did not accept a large portion of the factual allegations concerning unreported rock on which Koerber’s forensic analysis primarily was based. For instance, the chancellor specifically found that neither Lampkin nor Smith, before Smith’s death in August of 2006, operated Limestone to the detriment of the other shareholder. Further, we note that the chancellor specifically reincorporated his initial findings concerning the credibility of the expert witnesses into the Judgment on Remand.

¶21. The chancellor did not abuse his discretion by performing his own calculation of- lost profits derived from the expert reports and testimony before him. On remand, the parties chose not to supplement the record with any additional analysis or reports. Indeed, it appears that the estate did not file anything at all before the chancellor entered his Judgment on Remand; Even now on appeal, the estate has failed to cite any authority in its briefs concerning why the chancellor erred by using figures from Koerber’s' financial analysis and not his forensic analysis. This Court consistently has held that “[fjailure to cite legal authority in support of an issue is a procedural bar on appeal.” Webb v. DeSoto Cty., 843 So.2d 682, 685 (Miss. 2003) (citing McClain v. State, 625 So.2d 774, 781 (Miss. 1993)). The lost-profits calculation that the estate argues that the chancellor should have accepted on remand was unreasonable, as the estate merely relied, once again, on the same expert testimony and reports much of which the chancellor already had rejected in his initial judgment. These findings by the chancellor were unaffected by this Court’s remand. Lampkin II, 175 So.3d at 1229-30.

¶ 22. The chancellor’s calculation of $240,147.52 as Limestone’s lost profits' is not an abuse of discretion. The chancellor used the actual profit figures from Delta Stone to calculate the entire lost profits Limestone would have received had Lamp-kin not usurped Limestone’s corporate opportunity. See Holly, 677 So.2dat 183-84 (quoting Huffines, 288 F.Supp. at 864).

¶ 23. We note that the better practice in calculating lost profits in the usurped-corporate-opportunity context would' be to avoid using the actual figures of the business' that benefited from the breach of fiduciary duty — diere, Delta Stone. Instead, it would be more appropriate to consider an estimation or projection of the future profits of the damaged business had the corporate opportunity not been usurped or to consider the past profits of the damaged business, accounting for any advantage received by the business that benefitted from the breach of fiduciary duty. Under normal circumstances, had the chancellor chosen to project future profits, • he would have had the benefit of expert, reports.. As discussed above, the chancellor here rejected significant portions of Saunders’s and Koerber’s reports and did not abuse his discretion in calculating Limestone’s lost profits himself.

¶24. Also, as clarification for1 future reference, in Lampkin II, we did not reverse the chancellor’s initial judgment solely because he used evidence of Limestone’s past profits to calculate lost future profits. Lampkin II, 175 So.3d at 1228-29. Instead, this Court recognized that, within the context of the particular facts of this case, past profits alone were insufficient to calculate the entire loss suffered by Limestone. Id. This Court stated, “The chancellor’s assessment of ‘historical lost net profits’ in his damages calculation did not take into account' Lampkin’s post-breach rock-price increase.” Id. at 1228. Evidence of past profits can be used as a means to calculate lost profits in the fiduciary-duty context as long as the damages award ultimately represents the entire loss to the corporation. Id. at 1228-29; see also Sanders v. Dantzler, 375 So.2d 774, 777 (Miss. 1979) (recognizing in the contract context that “one way to show damages (the loss of future profits) is to introduce evidence of past profits”). In other words, the chancellor’s initial judgment would have been proper had he calculated the lost profits due to • Limestone by considering Limestone’s past profits adjusted by such factors as the post-breach rock-price increase at Delta Stone.

¶25. This is not to say the chancellor abused his discretion, here on remand, when he decided not to use Limestone’s past profits to calculate lost profits. On the contrary, the chancellor specifically ensured that the Judgment on Remand provided for the entire loss suffered by Limestone. Again, “damage awards are only overturned when the trial judge has abused his discretion or in exceptional cases where such awards are so gross as to be contrary to right reason.” Lampkin II, 175 So.3d at 1227 (internal quotations omitted). The cost of goods and the average expense figures used by the chancellor were less than Delta Stone’s actual figures. The chancellor therefore calculated these figures with the principle of awarding the entire loss to Limestone". Further, the chancellor’ did hot err in considering Delta Stone’s actual' sales figures, as he did not accept the complete testimony of either expert. In fact, using these figures ensured that the Judgment on Remand “t[ook] intó account Lampkin’s post-breach rock-price increase” as this Court had instructed the chancellor to do in Lampkin II. Id. at 1228.

¶26. The chancellor’s award is proper under this Court’s directive in Lampkin II and Holly. The award for lost profits to Limestone, on remand, is more than double the amount originally awarded by the chancellor. Thus,- we find that the chancellor did not abuse his discretion on this issue.

III. Unreported Rock

¶27. In Lampkin II, this Court found that the chancellor had abused his discretion by “failing to take into account ... unreported rock [diverted from Limestone to Delta Stone] in his calculation of lost future profits.” Lampkin II, 175 So.3d at 1230. While calculating the entire loss suffered in his Judgment on Remand, taking into account the expert testimony of both Saunders and Koerber, the chancellor determined that 36,000 tons of rock were unreported. The chancellor then found that these “36,000 tons should have been paid at the rate of one dollar per ton over cost and added to the lost profits.” Therefore, the chancellor valued this rock at $36,000 and determined that the Estate’s damages were half of this amount, $18,000.

¶ 28. On appeal, the Estate argues that the chancellor’s one-dollar-per-ton valuation is eiToneous because it is based on an unenforceable oral agreement between Lampkin and Smith. According to the estate, the agreement provided that Lamp-kin could purchase rock from Limestone at one dollar per ton over Limestone’s cost. The estate now contends that this oral agreement between Smith and Lampkin was too indefinite and therefore unenforceable. See Poole v. Johns-Manville Prods. Corp., 210 Miss. 528,49 So.2d 891, 893 (1951) (holding that a contract that cannot be performed within fifteen months must be memorialized in' a signed writing to be enforceable). Further, the estate claims that, though this arrangement could be unaffected by the statute of frauds if the parties continuously complied with the agreement, Smith and Lampkin did not always abide by this agreement because Lampkin at times paid more than one dollar per ton. The estate claims, instead, that the rock should be valued at $1.70 per ton based on Koerber’s lost-profits calculation, resulting in damages of $61,200, of which one half is due to the estate.

¶ 29. Though not raised by Lampkin, we cannot find evidence in the record that the estate has preserved these arguments for appeal. There is no indication that the estate argued to the chancellor that the agreement is unenforceable under the statute of frauds. “We will not consider issues raised for the first time on. appeal.” Anderson v. LaVere, 136 So.3d 404, 410 (Miss. 2014). The chancellor’s Judgment on Remand states that both parties presented additional briefing on remand, but the record contains only one brief-a brief submitted by Lampkin. Further, the Judgment on, Remand does not mention that the chancellor relied on any oral agreement between Smith and Lamp-kin when valuing the unreported rock.

¶30. Even if the estate’s arguments were not procedurally barred, the issue here is not the enforceability of the oral agreement, but rather whether the trial judge abused his discretion in valuing the unreported rock. “[U]nder Mississippi law, a plaintiff is entitled to the gross amount that would have been received pursuant to the business that was interrupted by a defendant’s wrongful act, less the cost of running the business.” J & B Entertainment v. City of Jackson, Miss., 720 F.Supp.2d 757, 765 (S.D. Miss. 2010) (citing Fred’s Stores of Mississippi, Inc. v. M & H Drugs, Inc., 725 So.2d 902, 914 (Miss. 1998)). The chancellor'did not abuse his discretion in valuing the rock according to the profit agreement. At trial, Lampkin testified that he had paid for at least 136,-000 tons of rock under this arrangement. Saunders also testified that' the partiés at times had honored the agreement. Further, Lampkin’s counsel elicited testimony from Koerber that Lampkin purchased rock from Limestone under the agreement. Thus, evidence in the record supports the chancellor’s valuation, and we cannot say that the chancellor abused his discretion by valuing the unreported rock at $36,000.

IV. Lease

A. The Estate’s Appeal under the Lease

1.Damages Period

¶ 31. The estate argues that the chancellor erred in his calculation of damages under the lease by awarding damages for only 2007 through November 2011. Without citation to any authority, the estate repeatedly argues that the damages period must be consistent and that the chancellor should have continued to award damages under the lease through July 2012. As noted above, the “[fjailure to cite legal authority in support of an issue is a procedural bar on appeal.” Webb, 843 So.2d at 685. Thus, we need not address this issue.

¶ 32. Notwithstanding the procedural bar, the chancellor did not abuse his discretion in determining that Lampkin did not owe any damages under the lease after November 2011. In his award, the chancellor noted that the property at issue in the suit was subject to a partition judgment in November 2011 that granted the land on which Delta Stone operated to Lampkin. Also, the chancellor reincorporated his initial factual finding that the estate and Lampkin were not on good terms and would not have continued to do business together for long even if Lampkin had not usurped Limestone’s corporate opportunity. Thus, the chancellor did not abuse his discretion in determining that the estate was due damages only for the period when Lampkin and the estate both owned the property, before the partition judgment.

2.Interest on Judgment

¶33. Next, the estate argues that it is entitled to legal interest on the amount of the judgment that was awarded under the lease. “An award of prejudgment interest is reviewed for abuse of discretion.” Theobald v. Nosser, 784 So.2d 142, 145 (Miss. 2001). Mississippi law provides for legal interest to the prevailing party under a breach-of-contract action. Sentinel Indus. Contracting Corp. v. Kimmins Indus. Serv. Corp., 743 So.2d 954, 971 (Miss. 1999); Miss. Code Ann. §§ 75-17-1(1), 7 (Rev. 2016). “Prejudgment interest may be allowed in cases where the amount due is liquidated when the claim is originally made or when the denial of a claim is frivolous or in bad faith.” U.S. Fid. & Guar. Co. v. Estate of Francis ex rel. Francis, 825 So.2d 38, 50 (Miss. 2002) (quoting Preferred Risk Mut. Ins. Co. v. Johnson, 730 So.2d 574, 577 (Miss.1998)).

¶ 34. Here, the estate is not due interest on the judgment. First, the estate’s claim under the lease was not liquidated when it originally was made, as the chancellor had to determine the damages period before he could award any damages under the lease. Second, there is no indication in the record or the Judgment on Remand that Lampkin acted in bad faith. The chancellor recognized that neither shareholder, prior to Smith’s death, operated Limestone to the detriment of the other shareholder. Further, the fact that Lampkin filed this action willingly as a complaint for declaratory judgment is further evidence that he was not acting in bad faith. Therefore, the estate is not due any interest on its judgment.

3.Attorney’s Fees under the Lease

¶35. The estate also claims that it is entitled to attorney’s fees under the lease. This Court reviews the grant or denial of attorney’s fees under an abuse-of-discretion standard. In re Estate of Gillies, 830 So.2d 640, 644 (Miss. 2002). Attorney’s fees are recoverable when provided for by contract. See Jackson Cty. Sch. Bd. v. Osborn, 605 So.2d 731, 734-35 (Miss. 1992); Lovett v. Anderson, 573 So,2d 758, 760-61 (Miss. 1990) (attorney’s fees under a lease). In order to recover attorney’s fees, a party “must furnish an evidentiary predicate therefor.” Key Constructors, Inc. v. H & M Gas Co., 537 So.2d 1318, 1325 (Miss. 1989); Coleman & Coleman Enters., Inc. v. Waller Funeral Home, 106 So.3d 309, 319 (Miss. 2012).

¶ 36. Here, the lease provides: “Lessee agrees to pay a reasonable attorney’s fee on any amount due hereunder which, after default in payment, may be placed in the hands of an attorney for collection.” In its brief, the estate argues that an attorney’s fee of 25 percent of the recovered amount under the lease is “justified.” No evidence in the record supports this number as reasonable. This Court has held that it “may not judicially note what is a reasonable fee and it certainly may not merely pull a figure out of thin air.” Key Constructors, 537 So.2d at 1325.

¶ 37. Neither is there a presumption for a reasonable fee in this case. Anderson, 573 So.2d at 761 (finding error when trial judge sua sponte determined that a 25 percent fee was reasonable under a lease); but see Dynasteel Corp. v. Aztec Indus., Inc., 611 So.2d 977, 986 (Miss. 1992) ( holding under statute that “we will presume reasonable an attorney[’]s[ ] fee of one-third of the judgment obtained, where the fee so calculated is not more than $5,000.”); Miss. Code Ann. § 11-53-81 (Rev. 2012) (dealing with attorney’s fees under Open Account Statute).

¶ 38. Without any evidence before us, we cannot find that the chancellor abused his discretion by not awarding attorney’s fees under the lease. On remand, the estate did not supplement the record with any evidence of the reasonableness of the fees that it incurred litigating the issue of the lease in the proceedings below. In fact, as already noted above and conceded by the estate’s counsel at oral argument, the estate did not supplement the record on remand at all. At oral argument, counsel for the estate argued that the chancellor had sufficient evidence before him to determine that the estate’s requested attorney’s fees under the lease were reasonable on the basis of the bill filed by the estate before remand. Upon review of a two-page transaction listing for $163,135 in attorney’s fees filed by the estate, we cannot determine what portion — if any — of the fees are attributable to the estate’s litigation of the lease. This is not surprising, as the transaction listing was filed before the remand, but the estate did not supplement the record with any of the evidence necessary to make a finding concerning the reasonableness of the fee under the lease. Faced with no evidence to determine the reasonableness of the fee, the chancellor did not abuse his discretion by not awarding any attorney’s fees to the estate under the lease, and we affirm the judgment of the chancellor on this issue.

B. Lampkin’s Cross-Appeal under the Lease

¶ 39. On cross-appeal, Lampkin argues that Delta Stone utilized only 6.82 acres of the 17.38 acres subject to the lease and should be liable to Limestone only for the acreage he, through Delta Stone, actually used. In his argument, Lampkin notes that several entities owned first by Smith and subsequently by the estate operated on the remaining 10.56 acres without paying rent to Smith or Lampkin.

¶ 40. “[I]t is a question of law for the court to determine whether a contract is ambiguous and, if not, enforce the contract as written.” Royer Homes of Mississippi, Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 751 (Miss. 2003). We find that the lease at issue is not ambiguous; also, neither party argues that it is ambiguous. After a review of the lease, we disagree with Lampkin on his cross-appeal.

¶41. In 1999, Limestone entered into the original lease with Lampkin and Smith.- It included the entire 17.38 acres at issue. Lampkin usurped the* entire lease agreement from Limestone. As such, Lampkin is liable for “the entire loss to the corporation.” See Holly, 677 So.2d at 183-84. Limestone—regardless of whether it ever used the entire lease or not—lost the entire lease when Lampkin breached his fiduciary duty to Limestone, Delta Stone may have operated only on a portion of the land subject to the lease, but Lampkin usurped the entire lease. Thus, we affirm the chancellor’s calculation of damages under the lease on this issue.

V. Attorney’s Fees

¶42. The estate also argues that the'chancellor -should have re-examined the issue of- attorney’s fees after this Court’s remand. The Estate claims that damages for “the entire loss suffered” by Limestone, would include an award for attorney’s fees. While Limestone is entitled to damages for the entire loss suffered due to Lampkin’s breach, we ultimately disagree with the estate on this issue, as damages must be allowable under the law.

¶ 43. Initially, we note that if an “issue was raised on appeal [,] then it has been previously litigated and therefore is barred from consideration in the present proceedings.” Larson v. Larson, 192 So.3d 1137, 1140 (Miss. Ct. App. 2016) (quoting Pruett v. Thigpen, 444 So.2d 819, 823 (Miss. 1984)). The chancellor originally determined that the estate was not due damages for advancing attorney’s fees on behalf of Limestone. This Court’s decision in Lampkin II did not disturb this finding. See Lampkin II, 175 So.3d at 1231. As such, the estate is barred from relitigating the issue of attorney’s fees.

¶ 44. Considering the estate’s argument, though, it is clear that the chancellor did not err when he did mot reconsider attorney’s fees in the Judgment on Remand. “This Court has repeatedly held that ‘in the absence of contractual provisions or statutory authority, attorney[’]s fees may not be awarded as damages in a case unless punitive damages are also proper.’ ” Mullen v. Green Tree Fin. Corp.-Miss., 730 So.2d 9, 15 (Miss. 1998) (quoting Central Bank of Miss. v. Butter, 517 So.2d 507, 512 (Miss. 1987)). In his initial judgment, the chancellor found that Lampkin’s conduct did not justify the award of punitive damages. This Court did not specifically set aside this finding. See Lampkin II, 175 So.3d at 1231. Also, as already has been discussed, the chancellor, on remand, found that neither Lampkin nor Smith operated Limestone to the other’s detriment befQre Smith’s passing in 2006. Further, the fact that Lampkin brought the action as a declaratory judgment is evidence that supports the chancellor’s determination that Lampkin’s conduct did not merit punitive damages. Thus, we affirm the judgment of the chancellor on this issue.

CONCLUSION

¶45. We affirm the chancellor’s judgment on every issue except for the calculation of lost assets. Concerning the calculation of lost assets, we reverse and render judgment in the amount of $64,363.50.

¶ 46. ON DIRECT APPEAL: AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ON CROSS-APPEAL: AFFIRMED.

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

      . A portion of the facts below is adapted from Lane v. Lampkin, 175 So.3d 1222, 1223 (Miss. 2015) (Lampkin II), and a portion of the facts is quoted verbatim from our previous opinion.

      . We note that, while both parties cite the record in Lampkin II (Cause No. 2013-CT-00554-SCT), neither party moved this Court to consolidate the prior récord with the current appeal. We have, however, considered the prior record in our review of this appeal.

      . As noted above, the chancellor rejected Koerber’s opinion that, beginning in 2003, Lampkin began diverting hundreds of thousands of tons of rock from Limestone.

      , The estate provided no citation 'to the record indicating where Koerber valued the rock at $1,70 per ton.

      . As an aside, a litigant has an affirmative duty to provide this Court with specific citations to the appellate record. M.R.A.P. 28(7) ("The argument shall contain the contentions of appellant ... with citations to the ... parts of the record relied on.”) We have found failure to fulfill this duty a procedural bar in the past. Matter of Estate of Smith v. Boolos, 204 So.3d 291, 313-14 (Miss. 2016). Here, the Estate did not provide any citation — either in its briefs or at oral argument — to its previously filed bill.

      . The following analysis relates to attorney’s fees claimed by the estate separate and apart from any fees under the lease, see Issue IV A 3 supra.


author: BEAM, JUSTICE,

text:
    Adofo MINKA v. STATE of Mississippi
    NO. 2015-CA-01741-SCT
    Supreme Court of Mississippi.
    07/27/2017
    Rehearing Denied October 19, 2017

      ATTORNEYS FOR APPELLANT: DAVID NEIL McCARTY, MERRIDA COXWELL
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JOSEPH SCOTT HEMLEBEN
    BEFORE WALLER, C.J., KITCHENS AND BEAM, JJ.
   BEAM, JUSTICE,

FOR THE COURT:

¶1. Adofo Minka was held in direct criminal contempt by Hinds County Circuit Court Judge Jeff Weill Sr. for unprofessional and contumacious behavior during the trial of his client which resulted in a mistrial. Minka was fined $100 and ordered to pay the costs of the jury in the amount of $1,350. Minka appeals to this Court, claiming (1) he did not improperly comment during opening statements on a potential sentence his client might receive, which triggered a sua sponte objection from the trial court and was a key basis for the State’s request(s) for a mistrial; (2) Minka’s comments do not warrant criminal sanction because counsel have broad latitude during opening statements and closing arguments; (3) the record does not support a finding beyond a reasonable doubt that any of Minka’s comments or conduct constitute criminal contempt; and (4) even if this Court affirms the trial court’s contempt and sanction order, the monetary fíne was $650 more than it should have been; therefore, the sanction amount must be reversed, lowered, and rendered.

¶2. We find no merit in any of the points of contention argued by Minka on appeal. The record before this Court proves Min-ka is guilty of criminal contempt beyond a reasonable doubt. And the trial court had the authority to issue a monetary fíne and costs in the amounts imposed. Therefore, we affirm the trial court’s contempt and sanctions order.

FACTS

¶3. On November 18, 2015, Minka appeared before Hinds County Circuit Court for the criminal trial of his client William Wilson, charged with the crime of felon in possession of a firearm. After the State concluded its opening statement, Minka began his opening statement, saying:

I’ve sat throügh just listening to the State’s opening statement. I’ve sat over at the defense counsel table and I’ve talked to my- client. 'And as I sat over there, I’ve been trying to take care of my fear. Fear is such a harrowing emotion. It grabs you, it takes hold of you; it can control you.

¶4. At that point, the trial court interjected and asked defense counsel and counsel for the State to approach the bench. Citing Rule 3.02 of the Uniform Rules of Circuit and County Court Practice (URCCC), the trial court told Minka that his argument was “not appropriate argument[; t]he purpose of opening statement is to lay out what you believe the evidence will' show.” The court ’said, “I don’t know where this is headed, but it doesn’t sound like it’s headed toward the evidence.” Minka responded, “It’s headed there Judge.... I’m going to move quickly through this, Judge. I’m not going to take time. I understand what you’re saying.” The court replied, “All right. Well it’s not just a question of time. This is not an emotional appeal, this is a laying out of the evidence. And so I’m just telling you, you heed to not only move along, but move into what you expect the evidence will show.”

¶5. Minka resumed his opening statement:

Sorry ladies and gentlemen of the jury, I’m just trying to have a conversation with you. You’ve heard the prosecution’s story of this case. But fortunately ladies and gentlemen of the jury, there’s two sides to every story. The prosecution wants you to merely believe that this is a case about somebody who is convicted of a felony and they were in possession of some firearm. According to what the prosecution is saying the evidence will show, my client . over there, should already be on the bus to Parchman Penitentiary. Simple enough: right? Wrong.

¶6. The trial court again interjected and asked counsel for both parties to approach the bench. The court instructed Minka not to go into what potential sentence the defendant might face. A back-and-forth ensued between Minka and the trial court, with Minka denying he had commented on any potential sentence his client faced. The trial court said its ruling had been made and told Minka to finish his opening statement.

¶7. After the bench conference concluded, Minka said aloud in front of the jury, “I want the record to reflect that I never ... made any statements ... about .... ” The trial court told counsel to approach the bench.

¶8. The court warned Minka that if he interrupted the court again and continued to talk after being instructed by the court not to, there would be serious consequences. The court then instructed Minka to finish his opening statement.

¶9. Minka coritinued his opening statement, saying:

This is not what that case is about ladies and gentlemen, The case theory, that’s not what it’s about. This case is about unrestrained and unchecked power. It is about the power of the vice and narcotics task force and bout [sic] the power of the district attorney’s office represented by Mr. Smith and Mr. Muccllouch [sic] sitting over here; It is about how power only cares about taking care of itself. It’s about power betraying our trust. During the' course of this trial you’re going to hear from men who represent the powerful entities ....

¶10, The State requested a bench conference and objected to Minka’s statement on the ground it was improper. The trial court asked Minka to explain why. his statement was 'not improper. Minka responded:

Because I said they [will] hear from the people coming up here, what' the evidence [will] show. You want me to say what the evidence [will] show? Would that make the Court feel more comfortable? '

¶11. The trial court sustained the State’s objection, and instructed Minka to proceed. Continuing with his opening statement, Minka said to the jury:

Ladies and gentlemen of the jury, I’m just, interested in the truth. I’m just trying to tell you what the evidence in this casé is going to show. During the course of this trial, you’re going to hear from detectives who give voice to the power of the Narcotics and Vice Task Force of the Jackson Police Department. During the course of this trial, you’re going to hear about how the Vice and Narcotics Task Force of the Jackson Police Department betrayed our trust. They betrayed our trust by hunting and surveilling [my client] over there until they had- a grand — until they believed that they had a grand opportunity to ensnare him. You’re going to hear about how the vice and narcotics task force betrayed our trust when they relied on the unreliable evidence of a snitch. Then the prosecutor, they'have betrayed our trust— '

¶12. The State objected, and the trial court sustained the objection. Minka then asked if they could approach the bench. The trial court excused the jury, and a lengthy bench conference ensued.

¶13. The State argued that Minka was attempting to. bias the jury or appeal to their sympathy, which was inappropriate. The State also argued that Minka had opened the door for the State to introduce otherwise inadmissible drug evidence into the case. Minka responded that he had no objection to any such evidence being introduced by the State, and he planned to talk to the jury about that during his opening statement. The trial court first queried Minka about the dispensation pertaining to the drug evidence. Afterward, the trial court addressed the State’s objection regarding Minka’s other remarks, which the record provides as follows: .

THE COURT: All right. Now as far as the rest of the objection of the State, I do find that it’s an improper objection— I mean it’s an improper argument. Your argument is at full throttle. It talks about fearing the. powerful, and it’s a completely inappropriate opening statement. You need to simply lay out what you believe .the evidence will show without reference to — hyperbole, there may be a place for that in closing argument, I’m not foreclosing that., But when you when you [sic] say that the prosecutors sitting at this table have betrayed trust, that’s way out of bounds, even for closing argument. So I!m going to sustain the objection. And I’m going to caution you to lay.it out in a professional and calm manner, what you expect the evidence to. show. You’ve got an opportunity to do it. And if you can’t refrain from that, you’re not going to go further with your opening statement. Are we clear on that?
MR. MINKA: I don’t understand what I’ve done wrong.
THE COURT: I’m sorry?
MR. MINKA: I do not understand what I have done wrong, Judge. I do not understand what is improper. I do not understand what is wrong with saying that — what is wrong with the truth. I don’t understand that, Judge. If the DA’s office is not powerful then I won’t say it. But they are powerful. They’re powerful enough to have this man sitting over here today on charges.
THE COURT: There’s a way to do it right and there’s a way not to do [sic]. And you’re not doihg it right.
MR. MIN’KA: Can you instruct me—
THE COURT: Excuse me. It’s really important that you not interrupt me Mr. Minka. That’s really important. If you do it again I’m going to find you in contempt. Now the way opening statement works, and has in every trial I’ve ever had in my courtroom — many of which [your co-counsel] has participated in, you have not yet — you lay out in a calm professional way what you expect the evidence to show; and without going into an emotional appeal to the biases that the jury may hold. To appeal to any sense of fear that they may have of the powerful and so forth, is just not an appropriate opening statement. I don’t know how further to explain it to you—
MR. MINKA:. My tone is inappropriate, Judge?
THE COURT: I’m sorry?
MR. MINKA: My tone is inappropriate?
THE COURT: [Your] tone is inappropriate.
MR. MINKA: You want me to talk like he was talking? What tone is appropriate Judge? I’m not being fecetious [sic]. I really want to understand. Because you telling me—
THE COURT: Well, I mean, your tone right now it’s like my tone. It’s not — I don’t have a raised voice, I’m not making an appeal to emotion. So that’s what you need to do with your tone. Lower your tone.
MR, MINKA: I do not understand, Judge. I do not understand. I don’t know what rule it says that you cannot raise your voice; that you cannot speak from passion. I don’t — I -never seen a rule, a rule of court that has instructed attorneys that they can not, speak from passion, Judge. If you can show it to me, I’ll sit up there and I’ll speak monotonely. But.I don’t believe that, that rule exists.
MR. MCCULLOUCH: Your Honor, we feel under the ... Uniform Rules of Circuit and County Court Procedure [ (URCCC) ] under 10.03, that opening statement should be only what the— either the State or the Defense believes the evidence will show. And it’s our opinion, Your Honor, that defense counsel may be trying to provoke a mistrial. I’m not sure. But if we get in front of the jury with these kinds of theatrics, I think that’s what’s going to end up happening.

¶14, At that point, the trial court read to counsel Rules 10.03 and 3.02 of the Uniform Rules. The trial court then stated, “Now I’ll let you respond, and then we’ll move on.”

MR. MINKA: Judge, I sincerely would like to know who have I disrespected? Who have I disrespected on the jury? Who have I disrespected at counsel opposite’s table? I don’t understand. I’m just trying to get an understanding.
THE COURT: All right. You’ve disrespected the Court. You’ve disrespected the attorneys sitting at counsel by saying that they’ve betrayed somebody. You’ve disrespected the Court when you came to the podium a little while ago during your opening statement, and I ruled against you, you glared at me in full view of the jury as you walked back to the podium. That’s inappropriate and it’s unprofessional. And’ I won’t allow it in my courtroom. Now if you can comport yourself with Rule 3,02 and the other Rule, 10.03, I’ll allow you to finish your opening statement. If you can’t I’ll either — I’ll give you an opportunity to let [co-counsel] attempt to do so in an attempt to display professionalism— which you so far have lacked in my courtroom in this setting — I’ll give him that opportunity. But if you can tell me you can proceed professionally, I’ll allow it. If you tell me you don’t understand or you cannot proceed in accordance with the Court’s ruling, I’ll give [co-counsel] an opportunity to speak. And if he declines we’ll just move on with testimony. So what’s your response?
MR. MINKA: Judge, I just want the record to reflect you said that I glared at you. Judge, you looked me directly in my eye, and because you wanted me to know that I understand what you were saying. It was not a glare; it was not out of disrespect. And I do believe that I can continue and carry on with opening statement, Judge.
THE COURT: Very well. I’ll give you one more opportunity to do that.

¶15. The jury was brought back into the courtroom. Minka then concluded his opening statement as follows:

Good afternoon again, ladies and gentlemen of the jury. Ladies and gentlemen of the jury, I wish that I could have a honest conversation with you. But I can’t. So, I can’t. So, I’m going to take my seat now.

¶16. The trial proceeded to the eviden-tiary phase, the transcript of which was not included with this record. After the close of evidence, the State presented its closing argument. Minka then delivered his closing argument, as follows:

Good morning ladies and gentlemen of the jury. How y’all doing this morning? Glad I get another chance to talk to y’all about this case. Y’all have heard from the State. Y’all heard from Mr. Spore back there. I hope I get a full opportunity to tell you about this case. In the course of these types of cases when you defending people, when you here in the courtroom, you get to learn a lot. You get to learn a lot about different, a lot of different things. You get to learn a lot about the people who you represent. It’s funny that when Mr. McCulloch [sic], when he got up here, he talked about this case is not about drugs. But throughout this whole case, they have maligned Mr. Wilson as a gun-totting drug dealer. They wanted to get at your emotions. They wanted you to think that Mr. Wilson was a gun-toting drug dealer, and then stand up here and tell you, oh, this is not about drugs and guns necessarily. But we have to ask the question: Is that necessarily true? He’s not here convicted — I mean, he’s hot here accused of selling drugs; no, he’s not. He’s here accused of possession of a weapon and being a felon. We understand that. We understand that. But what we also have to understand, is how we got here. I talked to you — I tried to talk to you at the beginning of this case about power. I tried to talk to you about the nature of power and how power exercises itself. And our power can sometimes be reckless and abusive. And I know that you-all understand that— because I remember going back to voir dire when we were talking to you about believing and having faith in the police officers and their ability to investigate cases and having skills and all of that kind of stuff. And we’re going to talk about that. We’re going to talk about the credibility of the witness that you heard from throughout this trial. But first I want to talk about this so-called drug raid, this big drug bust. And it really is a cover up, these charges against

¶17. The State objected, and a bench conference ensued. The State argued Min-ka was arguing facts not in evidence. Min-ka replied he was talking about the drug raid which was in evidence, and he complained the State was interrupting his closing argument even though he did not interrupt the State’s. The trial court sustained the State’s objection, finding “no evidence from the witness stand concerning the assertions made by counsel.”

¶18. The trial court allowed Minka to continue his closing argument. The record provides as follows:

MR. MINKA: I just want to tell you the truth of this case ladies and gentlemen, but I’m not being allowed to tell you the truth.
THE COURT: Y’all approach.
MR. MINKA: But I’m not going back—
THE COURT: Excuse me—
MR. MINKA: — and sit down this time—
THE COURT: Excuse me—
MR. MINKA — I’m a tell you the truth -
THE COURT: Y’all approach.

¶19. The trial court excused the jury from the courtroom, and found on the record as follows:

Pursuant to Rule 3.02, the Court intervened in that the defense counsel was inappropriately commenting on perceived inability to present an argument to the jury.
And I want to make sure that counsel understand that, that’s inappropriate. And the Court made an appropriate ruling — subject to appellate review — and that ends the matter. And for defense counsel to stand before the jury and say that he’s not being allowed to make an argument, is also inappropriate.

¶20. The trial court asked whether Min-ka understood the inappropriate nature of the argument and whether Minka could proceed with an appropriate closing argument. Minka claimed he was not being given a fair opportunity to make his closing argument and represent his client. He maintained that nothing he had said was improper. He said he understood the court’s ruling, but he also understood the need to represent his client, and stated “I’m going to represent my client.” He then said:

The Court should do what the Court has to do. But I have to represent that man. That man’s liberty is on the line, and I’m go[ing -to] represent him. And I[ ] ask this Court to be fair and just with me.

¶21. At that point, the State moved for a mistrial, stating:

The State feels like that the defense has, from the beginning of opening, attempted to throw a mistrial. Which now the State is required — we feel like we’re required and do make a motion for mistrial based on the defense attorney’s failure to follow the - rules of circuit and county court procedures. Specifically, I think, it was [Rules] 3.02 and 10.3, regarding openings. And we’ve been prejudiced in that it now appears that the State and the Court are somehow conspiring against the defense and the defense team, to get a conviction. And, Judge, this just does not follow the general rules of decorum set forth in the Rules of Circuit and County Court Procedure [sic], or the code of professional conduct. So for these reasons we would ask for a mistrial in this case.

, ¶22. Minka told the court he did not agree with the State’s allegation; but he did not have anything to say on the State’s request for a mistrial. Minka said he wanted the record to.reflect that he had not been unprofessional and had not . accused anyone of “conspiring against somebody,” He just wanted to say to the jury “what’s in the facts.”

¶28. The trial court said, “So you don’t oppose the State’s motion for a mistrial?” Minka replied, “No, I do not.”

¶24. The trial court, said he would take the State’s request under advisement. The court then said to Minka:

And as I weigh my options, I need you -to simply say whether or not you’re going to, in finishing this closing argument — should I decide to allow you to continue — whether you’re going to stay away from any comment about this process and. about the Court’s rulings and about your inability to present, an argument. What’s your response to that? Are you going to obey an order of the Court not to do so?

¶25. Minka replied, “Yes, I’m. going to advocate for.my client. That’s what I’m [going to] do.” The trial court responded, “All right.' Even if that means commenting on the ruling of the Court?” Minka said he had not commented on a direct ruling from the court, and stated: “I’ve commented on the obstructionist nature of .the State obstructing my attempts to try to make an argument to the jury.” ;

¶26. The trial court then explained to Minka that in the event a mistrial was declared, the court could require Minka to pay for the jury panels which have to be dismissed because of Minka’s. unprofessional and obstreperous conduct. The court then asked Minka once more whether he would obey the court’s orders. The following exchange occurred.

MR. MINKA: Judge, let me tell you something judge.
THE COURT: I’m listening.
MR. MINKA: I have said that I’m going to advocate for my client. And -that’s what I’m here to do; that’s my job. I’m going to do my job, Judge. That’s all I can tell you. And in terms of — Judge, I’m getting real scared here. You threatening me and I’m getting real scared. And it’s going along the lines of this ineffective assistance of counsel thing—
THE COURT: All right. I don’t need to hear anymore argument. Please sit down.

¶27. Following a.brief recess, the trial court granted the State’s motion for a mistrial “based on counsel’s willful efforts to cause that mistrial as evinced by, among other things, his behavior in- court.” The trial court- detailed in the order Minka’s actions and found that Minka’s conduct and behavior was “in direct violation of the rules of court and it successfully resulted in a mistrial, the motion for which the defense counsel did not oppose.”

- ¶28. The trial court ordered Minka-to pay a $100. fíne. The court also ordered Minka to pay for the cost of the jury “in the total amount of $1,350.00, as his willful and improper behavior, which he refused to correct despite multiple opportunities from the court ... to do so, resulted in the abrupt termination of the trial[,]”

DISCUSSION

¶29. “Direct criminal contempt includes words or actions before the court that tend to embarrass the court or prevent the orderly administration of justice.” Harris v. State, 224 So.3d 76, 77-78, 2017 WL 58190, *1 (Miss. 2017) (quoting Mingo v. State, 944 So.2d 18, 32 (Miss. 2006)). In reviewing matters that involve a conviction for criminal contempt, “[t]his Court is not bound by the manifest error rule[; i]n-stead, this Court proceeds ab initio to determine whether the record proves the appellant guilty of contempt beyond a reasonable doubt.” Spore v. State, 214 So.3d 223, 226 (Miss. 2017) (quoting In re Smith, 926 So.2d 878, 885 (Miss. 2006)).

I. The record supports finding Min-ka guilty of direct criminal contempt beyond a reasonable doubt.

¶30. Minka argues the trial court erroneously found him in contempt of court for commenting on a potential sentence his client could receive, which Minka says did not occur because the “bus to Parchman” statement he made did not invoke a precise number of years. According to Minka, pursuant to Marks v. State, 532 So.2d 976, 983 (Miss. 1988), only “arguments which refer to the potential sentence in a given case” are improper. Minka further contends that the “Marks rule” (as he terms it) should not apply to defense counsel because the rule’s purpose, according to Minka, is to act as a shield for defendants in a criminal case, not as a sword against them. Minka submits that, since the State sought to convict the defendant, he logically did not violate any rule by mentioning that the State wished his client jailed.

¶31. At the outset, Marks does not hold or suggest that the rule against improper arguments referring to potential sentences applies only to prosecutors. Marks simply addressed the matter from the standpoint of the defendant because that was who complained on appeal.

¶32. At issue in Marks was whether the trial court erred in refusing to declare a mistrial due to statements made by the prosecutor in closing arguments concerning a potential manslaughter sentence in lieu of a sentence for murder. Id. at 983. No contemporaneous ’ objection was made by the defense following the prosecutor’s statements; instead, the defense moved for a mistrial. The trial court found the prosecutor’s argument was improper but declined to order a new trial on this ground. Affirming the trial court’s decision on direct appeal, the Marks Court reiterated that “[tjhe problem with arguments such as these is that they-invite the jury to' convict with regard to the punishment, not with- regard to evidence before them, and the jury should have no concern with the quantum of punishment to be imposed.” Id.

¶33. The concern expressed in Marks with such arguments is not unilateral, as Minka would have this Court hold. The general rule prohibiting argument to a nonsentencing jury regarding a defendant’s potential punishment upon conviction of the crime(s) charged applies to both the prosecution and the defense. King v. State, 784 So.2d 884 (Miss. 2001).

¶34. In King, this Court held that, during. closing arguments in the sentencing phase where the death penalty is -an option, both the defense and the State may argue for or against the death penalty pursuant to Mississippi Code Section 99-19-101(1). Id. at 889-90. This includes “mercy or sympathy” arguments from the defense, and “send a message” arguments from the State. Id. at 890. “Of course, neither side may ever argue these positions during the guilt phase; for a conviction or an acquittal must be based solely on law and fact.” Id.

¶35. This is in line with what the United States Supreme Court has held with regard to federal criminal trials. “When a jury has no sentencing function, it should be admonished to ‘reach it's verdict without regard to what sentence might be imposed.’ ” Shannon v. United States, 512 U.S. 573, 579, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994) (quoting Rogers v. United States, 422 U.S. 35, 40, 95 S.Ct. 2091, 45 L.Ed 2d 1 (1975)) (footnote omitted). “Information regarding the consequences of a verdict is therefore irrelevant to the jury’s task.” Shannon, 512 U.S. at 579, 114 S.Ct. 2419. And providing jurors with information about a defendant’s potential sentence during trial “invites them to ponder matters that are not within their province, distracts them from their fact-finding responsibilities, and creates a strong possibility of confusion.” Id.

¶36. Here, Minka’s “bus to Parchman” comment did not refer to a specific sentence his client might receive. But the comment-even if rhetorical hyperbole-was improper, particularly when considered alongside Minka’s other statements and conduct.

¶37. As the State points out on appeal, Minka presented “a variety of contemptuous behavior which ultimately resulted in a mistrial.” According to the record, Minka made several other inappropriate statements before the jury which included, but were not limited to, stating and insinuating that the prosecution had betrayed the jury’s trust and that both the prosecution and the trial court were preventing Minka from informing the jury of the truth.

¶38. Rule 3.02, which governs conduct of attorneys in the courtroom, provides in part:

Attorneys should manifest an attitude of professional respect toward the judge, the opposing attorney, witnesses, defendants, jurors, and others in the courtroom. In the courtroom, attorneys should not engage in behavior or tactics purposely calculated to irritate or annoy the opposing attorney and shall address the court, not the opposing attorney, on all matters relating to the case.
In opening statements, and in closing arguments, the attorneys may not attack the opposing attorney. ... In the argument to the jury, the attorneys will be required to keep within proper bounds, and any attempt to inject improper matter may be stopped by the court without the necessity of an objection. ...
It is the duty of the court to enforce this rule of its oum motion and without objection being made, but the court’s failure to do so, where there is no objection made, will not constitute a ground for exception.

URCCC 3.02. (emphasis added).

¶39. Attorneys “are not allowed to employ tactics which are ‘inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury.’ ” Flowers v. State, 842 So.2d 531, 553 (Miss. 2003) (quoting Sheppard v. State, 777 So.2d 659, 661 (Miss. 2001)). Minka’s declaration to the jury during opening statements that the pi’osecution had betrayed its trust falls in' that category. And the trial court properly admonished Minka for it.

¶40. The record illustrates that Minka, however, disregarded the court’s admonition and suggested to the jury later during opening statements and again during closing arguments that he was not being allowed to tell them the truth. Contrary to what Minka claimed to thé trial court and attempts to claim here, the record — as the State points out — does indeed demonstrate that Minka intended to insinuate to the jury that both the trial court and the prosecution were preventing him from-telling them the truth.

¶41. This not only was prejudicial to the State and its case, but it was prejudicial to the court itself. Suggesting to the jury that the court was preventing Minka from providing the “truth” of the matter struck directly at the impartiality, equality, and fairness of justice expected and required to be rendered by our courts. Minka willfully compromised this basic premise with his baseless statements, and the trial court rightfully granted the State’s request for a mistrial because of them.

¶42. As to .the other contemptuous conduct the trial court found Minka engaged in, both the transcripts and the audio recording included with this record fully support the court’s findings. The record demonstrates beyond a reasonable doubt that Minka was guilty of direct criminal contempt, and that his contemptuous conduct resulted in a mistrial in the underlying criminal matter.

¶43. This issue is without merit.

II. The trial court did not abuse its discretion in assessing monetary sanctions against Minka.

¶44. Minka contends that, even if this Court upholds the trial court’s contempt order, the amount of money sanctioned should not be affirmed. Minka submits the trial court charged him for twenty-six prospective jurors who never sat on the case, which went to mistrial, improperly increasing the sanction by $650 for the whole venire. Minka argues that nothing he allegedly did harmed those prospective jurors who did not sit on the case. Minka further contends that there is no proof in the record as to why this higher cost should have been assessed.

¶45. We disagree. The trial court detailed in its order how it calculated the monetary sanction for jury costs and the authority by which it proceeded. The court ordei'ed Minka to pay $1,350 for the jury cost ($25 per juror for forty jurors who participated in voir dire on November 18, and $25 per juror for the fourteen petit jurors who appeared the next day for trial on November 19). Twenty-five dollars is the statutory rate pursuant to Mississippi Code Section 25-7-61. See Miss. Code Ann.§ 25-7-61 (Rev. 2006).

¶46. The same type sanction was upheld recently in Harris, 2017 WL 58190 (assessing $1,200 for the cost of the jury), and previously in Crosby v. State, 760 So.2d 725 (Miss. 2000) (assessing $750 for jury cost-$25 per juror for thirty jurors), pursuant to Uniform Rule 3.13. This rule provides: “The court may assess all costs, including fees and mileage of jurors who have been required to be present for the trial, against whichever party litigant or attorney it deems appropriate, for failure of an attorney to try the case ....” URCCC 3.13. The tidal court in its discretion did not assess Minka the cost for mileage.

¶47. This issue too is without merit.

CONCLUSION

¶48. For these reasons, we affirm the trial court’s contempt and sanctions order against Minka.

¶49. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, COLEMAN, MAXWELL AND CHAMBERLIN, JJ., CONCUR.

      . The record includes only a transcript of the proceedings that occurred during opening statements and closing arguments, along with what the trial court stated into the record after granting the State's request for a mistrial in the underlying criminal case. No transcripts were provided for either the State’s or the criminal defendant’s case-in-chief. There is also an audio recording of the proceedings, which, like the transcripts contained in the record, covers only what occurred during opening statements and closing arguments.

      . The defendant in -Marks was charged with murder, and the prosecution argued for a murder conviction during closing arguments. Marks, 532 So.2d at 983.


author: MAXWELL, JUSTICE,

text:
    GROUNDWORX, LLC v. Thomas A. BLANTON and City of Hattiesburg, Mississippi
    NO. 2015-CA-00152-SCT
    Supreme Court of Mississippi.
    07/27/2017

      ATTORNEYS FOR APPELLANT: R. ANDREW TAGGART, JR., MONA PATEL GRAHAM, DAVID GLYN PORTER
    ATTORNEYS FOR APPELLEES: MICHAEL ADELMAN, J. COLLINS WOHNER, JR., KEITH W. TURNER
    BEFORE RANDOLPH, P.J.,' COLEMAN AND MAXWELL, JJ.
   MAXWELL, JUSTICE,

FOR THE COURT:

¶ 1. Groundworx, LLC, appeals the judgment dismissing Groundworx’s breach-of-contract action against the City of Hattiesburg. We review this judgment de novo, employing the same standard as the trial court. Taking Groundworx’s allegations as true, we will affirm dismissal only if it appears beyond doubt that Groundworx will be unable to prove any set of facts to support its claim.

¶ 2. After reviewing .the contract between Groundworx and the City, which Groundworx attached to its complaint, we are left with no doubt that Groundworx’s complaint was properly dismissed' for failure to state a claim. Even when we take all of Groundworx’s allegations as true, Groundworx can cite no contractual provision the City, allegedly breached. Even if Groundworx expended millions of dollars preparing to perform under the contract, it did so before securing the necessary financing to complete the project. And unfortunately for Groundworx, the contract was clear — if Groundworx did not secure financing by a certain date, the City had the right to terminate the contract. So Groundworx can prove no set of facts to show the City breached the contract.

¶ 3. Nor can Groundworx prove the City was liable under a theory of promissory estoppel. Groundworx claims to have reasonably relied on actions ai\d assurances made by City officials. But under Mississippi law, the City can be liable only for actions entered "on its minutes and approved by its mayor. So as a matter of law, Groundworx cannot recover based on unofficial City promises.

¶4. We therefore affirm the judgment dismissing Groundworx’s complaint.

Background Facts and Procedural History

I. City-Groundworx Contract

¶ 5. In 2010, the City’s wastewater system was discovered , to be noncompliant with federal pollution laws. Under order to remedy the problem, the City sought proposals for a land-application treatment system for sewage and wastewater. On November 11, 2013, Groundworx responded with a proposal to construct, operate, and maintain a land-application system.

¶6. After negotiations, the City and Groundworx executed a contract on January 21 and 27, 2014. Under the contract, Groundworx agreed to “design, build, construct, own, operate and maintain the System for the purpose of collecting, treating, storing, transporting, and disposal of the City’s Wastewater .... ” In exchange, the “City unconditionally and irrevocably covenanted] and agree[d] to pay to Ground-worx ... the interest portion of Ground-worx’s Debt Service payments” — along with other significant payments.

II. Groundworx’s Attempted Financing

¶ 7. While the City agreed to make payments sufficient to service the debt, it was Groundworx that had to obtain the $147 million to finance the project. And the contract contained a termination provision. It expressly provided, “[i]n the event that Groundworx has not closed its financing for the acquisition and construction of the System by June 2, 2014, either party shall have the right to terminate this Agreement by written notice to the other delivered on or after June 2, 2014, and before the date such financing is closed.”

¶ 8. Before the contract was entered, the City’s mayor sent a letter to the Mississippi Business Finance Corporation (MBFC) in December 2013. This letter explained the City was negotiating with Groundworx “for this public/private project” and. encouraged “MBFC to induce the bonds for Groundworx financing.” City representatives also participated in a written presentation to potential bond insurance agencies in New York City. And the day after the contract was executed, City representatives traveled to New York to participate in the meeting between Groundworx and Stephens, Inc. — Groundworx’s would-be financier.

¶ 9. According to Groundworx, “[i]t was clear to the parties that neither the bond rating agencies nor the bond insurers would be interested in bonding the financing ... but for the City’s promise to increase sewer rates to pay for the financing.” So at the meeting, the City officials talked about raising sewer rates to show “the City’s commitment to bond financing the project.”

¶ 10. Two and a half weeks later, during its February 18, 2014 meeting, the city council adopted a resolution to raise sewer rates. But nine days later, the mayor vetoed the resolution. So sewer rates were never raised.

¶ 11. The June 2,2014 financing deadline passed without Groundworx having closed on its financing.

III. Groundworx’s Original Complaint

¶ 12. Two weeks after the financing deadline, on June 19, 2014, Groundworx sued the City. It argued the City had breached its duty to maintain a revenue stream 1.3 times the amount of Ground-worx’s anticipated debt-service payments. Groundworx demanded specific performance — that the City be required to comply immediately with the obligation to identify a sufficient revenue stream. If not, Groundworx alleged it would not be able to secure financing for the project. Ground-worx also requested more than $6 million in compensatory damages.

¶ 13. Groundworx also filed for a temporary restraining order (TRO) prohibiting the City from cancelling the contract. The TRO was denied on July 14,2014.

¶ 14. The City filed its answer on July 18, 2014. Along with its answer, the City filed a countercomplaint for declaratory relief. The City asked the chancellor to declare: (1) the City had no contractual duty to identify a source of revenue, but rather only a duty to make payments when due; (2) therefore, the City had not yet breached any contractual obligation; and (3) the City had the unilateral right to cancel the contract based on Groundworx’s failure to obtain financing.

¶ 15. The City did not wait for a declarative judgment to cancel the contract. Instead, on August 5, 2014, the City exercised its contractual right to walk away from the agreement.

IV. Groundworx’s Amended Complaint

¶ 16. With the contract now terminated, Groundworx moved for and was granted permission to file an amended complaint. The amended complaint brought two counts against the City.

¶ 17. Count I alleged breach of contract, premised on two theories. First, Ground-worx alleged the contract itself obligated the City to raise revenue to cover 1.3 times the amount of the debt service payments. And second, after the contract was executed, the City entered an “express agreement” to raise sewer rates so Groundworx could obtain financing.

¶ 18. Count II alleged promissory estop-pel. Groundworx claimed the City representatives assured Groundworx and Stephens'the City would raise sewer rates, knowing Groundworx would be unable to obtain financing if the City did not. Groundworx claimed it detrimentally relied on these assurances to incur significant expenses on the project. Groundworx requested the chancellor award at least $6,266,753.42 in damages — the amount Groundworx had spent on the now-failed project.

¶ 19. On October 28, 2014, the City responded to Groundworx’s amended complaint with a Rule 12(b)(6) motion to dismiss. See M.R.C.P. 12(b)(6). The City asserted there were no relevant facts in dispute and Groundworx’s two claims failed as a matter of law. According to the City, the fully integrated contract with Groundworx contained no agreement that the City would raise sewer rates or otherwise identify a revenue stream. So Count I failed to state a claim, as it was not based on the contract. Additionally, the City argued any promise by a governmental body made without proper authorization is ultra vires and cannot be enforced through the doctrine of estoppel. Thus, Count II also failed to state a claim, as Ground-worx could not recover based on unauthorized oral promises by City officials.

V. Blanton’s Intervention

¶ 20. Between the filing of Groundworx’s original complaint and amended complaint, Hattiesburg taxpayer and property owner Thomas Blanton moved for and was granted the right to intervene under Rule 24. See M.R.'C.P. 24(a)(2). Blanton immediately filed a cross-complaint against Ground-worx, seeking a declaratory judgment that the City’s contract with Groundworx was void ab initio.

¶ 21. Blanton advanced this same argument in his own motion to dismiss Ground-worx’s amended complaint. According to Blanton, the financing scheme contemplated by the contract violated Section 183 of the Mississippi Constitution.’ Among other things, this .section prohibits a city from “loaning] its credit in aid of [a private] corporation or association.” Miss. Const. art. 7, § 183. So the contractual obligation to service the debt on a wastewater treatment facility that was to be solely owned and operated by Groundworx, a private company, was constitutionally prohibited. Thus, he argued the amended complaint failed to state a claim because it was based on a contract that violated the Mississippi Constitution, as well as the federal Due Process Clause. See U.S. Const. amend XIV..

¶ 22. Groundworx responded by filing a motion to dismiss -Blanton’s cross-complaint. Groundworx argued Blanton’s cross-complaint should be dismissed for the same reasons his motion to intervene should have been dismissed: (1) Blanton lacked standing to bring a cross-complaint;' and (2) Blanton’s exclusive remedy to challenge the constitutionality of the City-Groundworx contract was to timely file a bill of exceptions under Section 11-51-75, which Blanton failed to do,

VI, Judgment Dismissing All Claims

¶ 23. On December 2, 2014, the chancellor heard all three pending motions to dismiss — the City’s, Blanton’s, and Groundworx’s. At this hearing, the City disagreed with Blanton that any express provision in the now-terminated contract violated Section 183, But'the City suggested that if the chancellor found the City was somehow extracontractually obligated to raise sewer rates so Groundworx could obtain financing, then that particular action would violate Section 183. The City also asserted the contract-based reasons for- dismissal argued in its motion to dismiss.

¶ 24. Following the hearing, the chancellor issued a written ruling dismissing Groundworx’s amended complaint with prejudice. The chancellor agreed with Blanton that the City-Groundworx contract violated Section 183. The chancellor was persuaded by Brister v. Leflore County, 156 Miss. 240, 125 So. 816 (1930). According to Brister, for a city to avoid violating Section 183’s prohibition against lending its credit to a private company, a city must maintain somé element of ownership and control over the project. Id. at 249, 125 So. at 818. But the contract with Groundworx placed all ownership and control' over the- project with Groundworx, while obligating the City to pay for it. Moreover, according to the pleadings, Groundworx could not secure financing for the project without the City raising its sewer rates, an action the mayor vetoed. The chancellor felt “[s]uch an entanglement and, conflict between the City and Groundworx” was likely “contemplated in the drafting of Article VII, Section 183 of the Mississippi Constitution and the prohibitions contained therein, and the due process considerations that necessarily attach thereto.” , Consequently, the chancellor found the City-Groundworx contract was void ab initio, Because “the Constitutional issue [was] dispositive,” the chancellor found “no further issues need be addressed.”

¶ 25. On January 7, 2014, the chancellor entered a final judgment. This judgment granted Blanton’s motion and ¡dismissed Groundworx’s amended complaint with prejudice. Because all of Groundworx’s claims against the City had been dismissed, the chancellor deemed the City’s motion to dismiss moot. He also deemed Groundworx’s motion to dismiss Blanton’s cross-complaint moot. With all claims among the parties fully adjudicated, the judgment became final and appealable.

¶ 26. Groundworx timely appealed.

Analysis

¶27. We review the grant of a motion to dismiss de novo. Booneville Collision Repair, Inc. v. City of Booneville, 152 So.Sd 265, 269 (Miss. 2014). “We take the allegations in the plaintiffs complaint as true, arid the motion should be denied ‘unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim.’ ” Id. (quoting Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (Miss. 2006)).

¶28. Taking Groundworx’s allegations in the amended 'complaint as true, our de novo review leads to the same conclusion as the chancellor’s—Ground-worx’s amended complaint fails to state any claim against the City for which relief may be granted. Though the chancellor followed Blanton’s constitutional route to reach dismissal, courts should avoid- declaring unconstitutional a legislative act unless compelled to do so. See W. Line Consol. Sch. Dist. v. Greenville Mun. Separate Sch. Dist. 433 So.2d 954, 958 (Miss. 1983). And here, there is a separate and distinct reason Groundworx’s amended complaint must be dismissed. So we need not address whether the contract violated Section ■ 183. Instead, we affirm for the contract-based reasons cited.in the City’s motion to dismiss.

¶ 29. In its amended complaint, Groundworx brought two claims against the City—breach of contract and promissory estoppel. But comparing the complaint with the contract, none of the alleged failures by the City, even if proven true, constitute, a breach of a contractually imposed duty.

¶ 30. According to the amended complaint, the City had a contractual duty to identify a revenue stream 1.3'times the amount of the debt-service payments. But there is no language in the fully integrated contract that supports such an obligation. Instead, the contract was clear arid unambiguous—the City’s obligations did not begin until Groundworx secured financing and had to start servicing its debt, And if Groundworx failed to secure financing, the contract authorized the City to cancel the project without owing anything. Thus, Groundworx has no claim for breach of contract for failure to identify a revenue stream.

¶31. The amended complaint also alleged the' City breached an “express agreement” to raise sewer rates. According to the .complaint, this agreement' was not part of the fully integrated contract. Instead, this side deal was struck after the contract was executed. But the only way the City could enter a binding contract to raise sewer rates is “by a valid order duly entered upon its minutes.” Colle Towing Co. v. Harrison Cty., 213 Miss. 442, 448-49, 57 So.2d 171, 172 (1952) (citations omitted); see also Nichols v. Patterson, 678 So.2d 673, 676 (Miss. 1996) (holding city councils can bind their cities “only when acting within their authority and in the mode and manner by which this authority is to be exercised under the statutes, and that their contracts, and every other substantial action taken by them must be evidenced by entries on their minutes, and can be evidenced in no other way”). And here, Groundworx does not allege the agreement to raise sewer rates is evidenced on the minutes. Rather, it alleges the opposite — an order to raise rates was never entered because the mayor vetoed the city council’s decision. So Groundworx has no triable breach-of-contract claim based on the City’s alleged failure to raise sewer rates.

¶ 32. For the same reason, Groundworx has no estoppel claim based on the unfulfilled promise to raise rates. As a matter of law, “there is no estoppel against a [city].” Colle Towing Co., 213 Miss. at 448, 57 So.2d at 172. The law that City representatives “can contract and render the [City] liable only by a valid order duly entered upon its minutes” is so clear and consistent that “all persons dealing with [the City]” — including Ground-worx — “are chargeable with knowledge of this law[.]” Id.; see also Butler v. Bd. of Supervisors for Hinds Cty., 659 So.2d 578, 582 (Miss. 1995). For purposes of our review, we take as true Groundworx’s allegation that individual city representatives promised to raise sewer rates so Ground-worx could obtain financing. However, as a matter of law, this promise cannot reasonably be relied upon or enforced by Groundworx unless it is on the City’s minutes. Thus, Groundworx has no estoppel claim.

¶ 33. Groundworx has suggested these contract-based reasons to affirm dismissal are outside the scope of this appeal. As Groundworx frames it, we must decide solely about Blanton — his intervention and constitutional argument. But Blanton is not the only appellee — the City is too. The final judgment did not merely resolve a dispute between Blanton and Groundworx. It adjudicated the claims Groundworx brought against the City, finding the amended complaint against the City failed on its face as a matter of law. And as an appellee, the City “is entitled to argue and rely upon any ground sufficient to sustain the judgment below.” Kirksey v. Dye, 564 So.2d 1333, 1337 (Miss. 1990).

¶ 34. Admittedly, Groundworx raises interesting questions about intervenor standing, the application of Section 11-51-75, and the scope of Section 183’s prohibition. But even if we answered these questions in Groundworx’s favor, it would not obtain the relief it seeks — reversal of the judgment of dismissal in favor of the City and remand of its claims against the City to chancery court.

Conclusion

¶ 35. Unfortunately for Groundworx, even accepting its allegations are true, it simply has no legal avenue to recover its investment in the project before financing fell through and the contract was terminated. We therefore affirm the judgment dismissing Groundworx’s claims.

¶ 36. AFFIRMED.

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

      . Because, as part of our standard of review, we must take the allegations in the plaintiff's complaint as true, this opinion presents the facts as Groundworx alleged them. See Booneville Collision Repair, Inc. v. City of Booneville, 152 So.3d 265, 269 (Miss. 2014) (citation omitted).

      . In its entirety, Section 4.1.1 of the contract provided:
      City unconditionally and irrevocably covenants and agrees to pay to Groundworx:
      (i) beginning on the Effective Date, the interest portion of Groundworx's Debt Service payments, with the same to be billed and paid in a manner to ensure that Groundworx receives the payments at least fifteen (15) days prior to the due date for the Debt Service payment;
      (ii) beginning on the date the work required by Exhibit 2.2.4.2 is complete and subject to Section 2.2.7, and continuing until the payments provided for by the following sentence commence, the amount set forth in Exhibit 4.1.1 which may be adjusted based upon changed requirements of the City, and additional requirements which may be imposed by the Commission or the EPA and Groundworx’s Debt Service payments, with the same to be billed and paid in a manner to ensure that Groundworx receives the payments at least fifteen (15) days prior to the due date for the Debt Service payment; and
      (iii)during each Fiscal Year or part thereof during the Term from any monies legally available for such purpose to the City, at the time and in the manner hereinafter provided, commencing with the Accounting Effective Date of this Agreement, the Total Annual Requirement for such Fiscal Year.

      . Blanton argued he had a right to intervene because he had an interest in the litigation. This stated interest was his status as one of ' the taxpayers -required to finance the project and, after .the project was cancelled, possibly pay a multimillion-dollar judgment in favor of Groundworx. Blanton further asserted his interest was not adequately represented by the City, which acted unconstitutionally when it entered into the contract with Groundworx.

      . On appeal, the City seeks no relief different from what the chancellor granted. Instead, it asks us to affirm the chancellor’s final judgment. Thus, we reject Groundworx’s contention the City had to file a cross-appeal in order to reassert its nonconstitutional arguments for dismissal. See Brown v. Yates, 68 So.3d 758, 762 (Miss. Ct. App. 2011) (holding that an appellee must file a cross-appeal "in order for the appellee to gain reversal of any part of the .decision of a trial court about which the appellant brings no complaint”) (emphasis added).

      . Specifically, Groundworx's four appellate issues are: (1) the chancellor failed to recognize Blanton lacked standing to intervene; (2) the chancellor failed to recognize the procedures of Section 11-51-75 — which Blanton did not follow — provided Blanton the exclusive remedy to challenge the constitutionality of the contract; (3) the chancellor erred in ruling the City-Groundworx contract was unconstitutional; arid (4) the chancellor erred in not granting Groundworx’s motion to dismiss Blanton’s cross-complaint.