author: MYERS, P.J.,

text:
    Keith Leon JOHNSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00792-COA.
    Court of Appeals of Mississippi.
    Aug. 18, 2009.
    Rehearing Denied Dee. 8, 2009.
    Edmund J. Phillips, P. Shawn Harris, Forest, for Appellant.

      Office of the Attorney General by W. Glenn Watts, for Appellee.
    Before MYERS, P. J„ IRVING and BARNES, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Keith Leon Johnson was indicted for possession of cocaine pursuant to Mississippi Code Annotated section 41-29-139(c)(1)(B) (Rev.2005). A jury found Johnson guilty, and the trial court sentenced him to eight years in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved by his conviction and sentence, Johnson appeals arguing that the trial court erred in refusing certain jury instructions and that the trial court erred in denying his motion to suppress evidence of the cocaine found in Johnson’s shoe. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 18, 2006, at approximately 2:45 a.m., Officer Clay Garvin of the Decatur Police Department passed an automobile missing one of its headlights. Officer Garvin turned around and, while pursuing this automobile, noticed what appeared to be a passenger throwing items out of the passenger-side window. Officer Garvin pulled the automobile over, and while approaching the vehicle, he noticed that the passenger was putting something on the passenger floorboard or under the passenger seat. Officer Garvin first approached the passenger side of the vehicle and asked the occupant what was being thrown out of the car. Johnson, sitting in the passenger seat, pointed to a cigarette butt lying on the ground outside the car. However, Officer Garvin testified that the cigarette butt on the ground was brown and old.

¶ 3. Officer Garvin then approached the driver’s side of the automobile and requested the driver’s license and proof of insurance. The driver, Frederick Gooden, did not have his driver’s license, but he told Officer Garvin his driver’s license number. While receiving the information from Gooden, Officer Garvin detected the smell of alcohol coming from inside the car. Officer Garvin asked Gooden to exit the vehicle, which Gooden did. Officer Garvin read Gooden his Miranda rights, placed him into handcuffs “for [the] officer[’s] safety,” and moved him out of the road. Gooden then gave his consent for Officer Garvin to search his car. Johnson remained in the passenger seat during this time.

¶ 4. After receiving consent from Gooden to search the automobile, Officer Garvin approached Johnson and repeatedly requested that he exit the automobile. Johnson refused this order several times. He finally complied with the order after Officer Garvin threatened to arrest him. Officer Garvin then patted Johnson down, and decided to place Johnson in handcuffs “for [the] officer[’s] safety.” Johnson protested this and began walking back toward the front passenger side of the automobile. Officer Garvin grabbed the back of Johnson’s pants and instructed him to stop. Johnson resisted and attempted to run away. Johnson then maneuvered sideways, with Officer Garvin still holding his pants, and swung his fist at Officer Garvin, but he missed. • Officer Garvin responded by spraying mace in Johnson’s face and striking him in the leg with his baton. Officer Garvin was finally able to wrestle Johnson to the ground and call for backup. Johnson then threw Officer Garvin off of him, and began running down the highway. Officer Garvin pursued Johnson on foot and ordered him to stop. Officer Garvin testified that, while chasing Johnson, Johnson began shedding his clothes. Johnson took off his jacket and dropped it in the middle of the road, removed his right shoe and threw it to his right, and removed his left shoe and threw it to his left. After a short chase down the road, Johnson gave up and complied with Officer Garvin’s order to lie down on the road. With the assistance of another officer, who had responded to Officer Garvin’s call for backup, Officer Garvin handcuffed Johnson and placed him into police custody.

¶ 5. Officer Garvin then retrieved Johnson’s clothes and shoes. Inside Johnson’s right shoe, Officer Garvin noticed a clear plastic bag that contained what he thought was crack cocaine. He removed the clear plastic bag from Johnson’s shoe and placed it into an evidence bag for testing. The substance was later confirmed by the Mississippi Crime Laboratory to be 0.75 gram of cocaine.

¶ 6. Johnson was subsequently indicted for possession of cocaine. Prior to trial, Johnson filed a motion to suppress the cocaine found in his shoe claiming it stemmed from an illegal arrest. The trial court conducted a hearing on the issue and found that Officer Garvin had probable cause to arrest Johnson, and once Johnson discarded his shoes, he relinquished any privacy rights to them. The trial court then allowed evidence of the crack cocaine to be admitted. Thereafter, a jury convicted Johnson of possession of cocaine. He was sentenced to eight years in the custody of the MDOC. Johnson then filed a motion for a new trial, which was denied by the trial court. Johnson then timely filed a notice of appeal alleging five assignments of error.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN REFUSING SEVERAL OF JOHNSON’S JURY INSTRUCTIONS.

¶ 7. Johnson alleges that the trial court erred in refusing four of his requested jury instructions. For judicial economy and because jury instructions are to be considered in the aggregate, we will address these four arguments together.

¶ 8. The Mississippi supreme court has stated that:

Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.

Chandler v. State, 946 So.2d 355, 360(¶ 21) (Miss.2006) (quoting Ladnier v. State, 878 So.2d 926, 931-32(¶ 20) (Miss.2004)).

¶ 9. Johnson argues the trial court erred in not allowing proffered jury instructions D-6, D-7, D-8, and D-9. Johnson provides a cursory argument on appeal, stating that these instructions are a correct statement of the law and that they support his theory of the case.

¶ 10. The trial court considered the above instructions but found them to be repetitive of other instructions, unsupported by the evidence, covered in the ruling on the motion to suppress, or outside the duties of the jury. We agree.

¶ 11. Proffered jury instruction D-6 was repetitive and unsupported by the evidence. Instruction S-l, which was given, states that:

The Court instructs the Jury that if you believe from the evidence in this ease beyond a reasonable doubt that at the time and place charged in the indictment and testified about, that the Defendant, Keith Leon Johnson, did willfully, unlawfully, and feloniously have in his possession and under his conscious control a Schedule II controlled substance, namely cocaine ... then it is your duty to find the defendant guilty.

This instruction was in addition to other instructions stating that the State must prove each necessary element beyond a reasonable doubt. Additionally, jury instruction D-6 was unsupported by the evidence. Defense counsel admitted that it would be a “stretch” of the facts to give this jury instruction; for the facts to support giving this instruction, Gooden, the driver, would have had to physically place the crack cocaine in Johnson’s shoe. There was no evidence admitted to support such a finding. Therefore, the trial court did not err in refusing jury instruction D-6.

¶ 12. Similarly, the trial court did not err in denying proffered jury instructions D-7, D-8, and D-9. Instructions D-7 and D-8 required the jury to make a ruling on a legal issue. It is the court’s role to rule on legal issues, not the jury’s. See e.g., Brown v. State, 986 So.2d 270, 282(¶ 52) (Miss.2008). Moreover, all three of these instructions were attempts to provide Johnson a “second bite at the apple” on issues resolved by the trial court’s ruling on the motion to suppress. The trial court made a ruling regarding the validity of the arrest and the admissibility of the evidence. It is not the jury’s purview to determine whether the trial court made the correct ruling on issues of law. Accordingly, the trial court did not err in refusing D-7, D-8, and D-9 as they were addressed in the motion to suppress, were matters not for the jury to decide, and were unsupported by the evidence. This issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN DENYING JOHNSON’S MOTION TO SUPPRESS.

¶ 13. Johnson argues that the trial court erred in not granting his motion to suppress evidence of the drugs found in his shoe. He claims that there was no probable cause to arrest him; thus, his arrest is illegal, and any fruit of his illegal arrest is inadmissible.

¶ 14. In Jackson v. State, 335 So.2d 116, 118-19 (Miss.1976), our supreme court defined what constitutes an arrest:

An arrest is not consummated until there has been a taking or possession of a person by manual caption, or submission on demand; and although a manual touching is unnecessary unless there is resistance to an arrest, there must be restraint of a person to establish an arrest.

(Quoting Fondren v. State, 253 Miss. 241, 259, 175 So.2d 628, 636 (1965)).

¶ 15. In California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), the United States Supreme Court determined whether a suspect fleeing, after the police had made a showing of authority, constituted an arrest under the Fourth Amendment to the United States Constitution. In Hodari D., a group of young individuals, who were gathered together on a street corner, fled when they noticed the approach of an unmarked police car. Id. at 622-23, 111 S.Ct. 1547. A chase ensued, and when an officer wearing street clothes with a jacket that had “Police” on both the front and back progressed closer to the defendant, the defendant discarded a small rock of cocaine. Id. at 623, 111 S.Ct. 1547. At trial, Hodari moved to suppress as evidence the cocaine found as being the fruit of an illegal search. Id. The California Court of Appeals held that Hodari had been “seized” at the time the police officer approached him; therefore, the cocaine must be suppressed as the product of an illegal seizure. Id. The United States Supreme Court reversed the California Court of Appeals stating that “an arrest requires either physical force ... or, where that is absent, submission to the assertion of authority.” Id. at 626, 111 S.Ct. 1547. Since Hodari did not comply with the order to halt, there was no submission to the show of authority; therefore, no arrest occurred within the confines of the Fourth Amendment. Id. at 629, 111 S.Ct. 1547. The Supreme Court held that a seizure “does not remotely apply ... to the prospect of a policeman yelling[,] ‘Stop, in the name of the law!’[,] at a fleeing form that continues to flee.” Id. at 626, 111 S.Ct. 1547. Therefore, the cocaine was abandoned when Ho-dari fled and it was not found to be the fruit of an illegal search. Id. at 629, 111 S.Ct. 1547.

¶ 16. The Mississippi Supreme Court applied this holding and rational in Harper v. State, 635 So.2d 864 (Miss.1994). There, Harper and a friend briskly walked away from three police officers after they had been ordered to stop. Id. at 865. As Harper was running from the police, he discarded a matchbox that contained crack cocaine. Id. At trial, Harper moved that the cocaine be excluded as being the fruit of an illegal search and seizure. Id. Relying on Hodari D., the trial court overruled Harper’s motion and allowed the cocaine to be introduced at trial. Id. On appeal, the supreme court affirmed the trial court’s ruling, finding that:

Harper was not seized or arrested when he discarded the drugs. Harper was not in any form or fashion restrained or stopped at the time he threw down the cocaine, and the cocaine, therefore, was abandoned and not the fruit of an unlawful seizure or arrest ...[.] There was no error in the lower court’s finding that no stop or arrest had occurred at the time the matchbox hit the ground, and there existed no need to find probable cause.

Id. at 867.

¶ 17. The Hodari D. and Harper holdings were applied by this Court in Bessent v. State, 808 So.2d 979 (Miss.Ct.App.2001). There, Bessent was pulled over for speeding by a Rankin County Sheriffs Deputy, and was asked to exit his vehicle. Id. at 982(¶ 2). While the officer began conducting a pat down, Bessent ran from the officer. Id. at (¶ 3). The officer testified that he saw Bessent remove an object from his pants and throw it. Id. After detaining Bessent, the object was recovered, and inside the object was cocaine. Id. On appeal, this Court found that by voluntarily abandoning the object, Bessent removed any protection of the law against unreasonable searches. Id. at 985-86(¶ 20).

¶ 18. This Court recently applied this rational in Williams v. State, 892 So.2d 272 (Miss.Ct.App.2004). In Williams, the defendant ran from the scene of an automobile accident. Id. at 274(¶ 3). When the police caught up with Williams, one of the officers noticed “that Williams was ‘making a lot of eye movement’ toward[ ] a particular area four or five feet away.” Id. at 274-75(¶ 4). The police searched that area and recovered 89.42 grams of crack cocaine in an aluminum foil ball. Id. at 275(¶ 5). On appeal, Williams argued that the police’s opening the aluminum foil ball was unconstitutional. Id. at 277(¶ 14). Relying on the three above cases, this Court held that “[b]y discarding the aluminum foil package before the police took him into custody[,] Williams abandoned it and deprived himself of any right to privacy.” Id. at 278(¶ 15). Therefore, the crack cocaine was not the fruit of an illegal search. Id.

¶ 19. Turning to the case at hand, we cannot say the trial court erred in denying Johnson’s motion to suppress the crack cocaine found in his shoe. Applying the definition of an arrest found in Jackson and Hodari D., we find that Johnson was not considered arrested under the Fourth Amendment until he was placed into custody after running from Officer Garvin. Johnson was not restrained until after he stopped running from Officer Gar-vin. Johnson was able to get out of Goo-den’s car, attempt to walk back to Goo-den’s car, take a swing at Officer Garvin, wrestle with Officer Garvin, throw Officer Garvin off of him, and run from Officer Garvin. We cannot see how Johnson was restrained in any way during these episodes. Moreover, Johnson failed to submit to Officer Garvin’s demands. Johnson continuously ignored Officer Garvin’s orders for Johnson to get out of Gooden’s car, to stop attempting to run while Officer Garvin held the back of his pants, to stop resisting arrest while he and Officer Gar-vin were wrestling, and to stop running away from Officer Garvin while he was chasing Johnson down the highway. Following the holding in Hodari D., “since [Johnson] did not comply with the order to halt, there was no submission to the show of authority, and therefore, no arrest occurred within the confines of the Fourth Amendment” until Johnson stopped running from Officer Garvin and allowed Officer Garvin to place handcuffs on him and take him into custody.

¶ 20. We now turn to the admissibility of the crack cocaine found in Johnson’s shoe. As outlined in the above cases, once a defendant abandons or discards property while fleeing the police, that person relinquishes any privacy rights with regard to that property. While fleeing from Officer Garvin, Johnson discarded his jacket and both shoes. By doing so, he lost any privacy rights and Fourth Amendment’s protection for his jacket and shoes. Any search and seizure of these items cannot be deemed to be unreasonable under the Fourth Amendment. Moreover, by throwing these objects on the roadway, Johnson placed his items on public property, which also diminishes his Fourth Amendment protections against unreasonable searches and seizures. See Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Therefore, we find that Johnson relinquished his Fourth Amendment protections once he abandoned his jacket and shoes, and the trial court did not err in admitting evidence of the crack cocaine found in Johnson’s shoe. Accordingly, this issue is without merit.

¶ 21. THE JUDGMENT OF THE NEWTON COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF COCAINE AND SENTENCE OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NEWTON COUNTY.

KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON and MAXWELL, JJ., concur.

      . Officer Garvin testified that Johnson had a reputation of fighting or running from police officers.

      . Officer Garvin also recovered a nine-millimeter handgun from under the passenger seat of Gooden’s vehicle.

      . D-6 states:
      The Court instructs the jury that if you find from the evidence that someone other than the defendant, exercised conscious control over the substances, or if you believe that the State failed to prove, beyond a reasonable doubt, that Keith Leon Johnson exercised conscious control over the substances, then you must vote "not guilty.” D-7 states:

        The Court instructs the Jury that a person is under arrest if in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.
      The Court further instructs the Jury that the validity of an arrest is determined by whether the facts available to the officer, at the time of arrest, warrant a man of reasonable intelligence and caution to believe an offense had been committed.
      D-8 states:
      The Court instructs the jury that if you determine the officer tried to arrest the defendant, but that arrest was not valid, then any evidence seized after the arrest from the defendant was not validly seized.
      D-9 states:
      The Court instructs the Jury, that if the arrest was not valid, a person has a right to resist an unlawful arrest.

      . The California Supreme Court denied that State’s application for review, and the State sought review by the United States Supreme Court. Hodari D., 499 U.S. at 623, 111 S.Ct. 1547.


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    Juan LOPEZ, Appellant v. ZACHRY CONSTRUCTION CORPORATION and Zurich American Insurance Company, Appellees.
    No. 2009-WC-00123-COA.
    Court of Appeals of Mississippi.
    Nov. 10, 2009.

      John Hunter Stevens, Jackson, attorney for appellant.
    H. Byron Carter III, attorney for appel-lees.
    Before LEE, P.J., CARLTON and MAXWELL, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. Juan Lopez filed a petition to controvert on February 2, 2004, alleging a work-related accident while employed with Zachry Construction Corporation (Zachry) in Choctaw County, Mississippi. Lopez claimed that on January 1, 2003, he injured his lower back while lifting a piece of sheet metal. Zachry paid Lopez temporary total benefits. Lopez’s physician, Dr. Ken Staggs, assigned a permanent impairment rating of 5% to the body as a whole and determined that Lopez’s date of maximum medical improvement was December 2, 2003.

¶ 2. After a hearing, the administrative law judge (ALJ) determined that Lopez was due no further weeks of temporary total indemnity benefits after October 3, 2003, as Lopez admitted that he had failed to comply with medical treatment. In regard to the issue of permanent partial disability, the ALJ awarded Lopez permanent disability benefits of fifteen dollars per week beginning December 2, 2003, and continuing for 450 weeks.

¶ 3. The Mississippi Workers’ Compensation Commission (Commission) and the Circuit Court of Leake County affirmed the decision of the ALJ. Lopez now appeals, asserting that the Commission’s decision was contrary to law and against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS

¶ 4. On January 1, 2003, Lopez was lifting a piece of sheet metal and injured his back. Lopez initially received treatment at a local clinic, but he continued working for Zachry until he was laid off in May 2003. On his own initiative, Lopez was seen by another physician, Dr. Jose Paz, who then referred Lopez to Dr. Lon Alexander, a neurosurgeon. Dr. Alexander examined Lopez on June 11, 2003, and took Lopez off work that day. At that point, Zachry began to pay Lopez indemnity benefits. Dr. Alexander recommended surgery, but Lopez did not undergo surgery. Lopez was then referred to Dr. Staggs, a pain management physician. Over the course of his appointments with Dr. Staggs, Lopez received steroid injections.

¶ 5. On October 24, 2003, Lopez underwent a functional-capacity examination. It was determined that Lopez had a 100-pound bilateral carry. Dr. Staggs recommended that Lopez undergo two weeks of work hardening to prepare for return to work. Dr. Staggs opined that Lopez would be at maximum medical improvement at the completion of the two-week period and would be temporarily limited to fifty pounds lifting. Ultimately, Lopez did not complete the recommended physical therapy. In addition, Dr. Staggs’s notes indicate that Lopez had been uncooperative during the course of treatment and had failed to keep appointments. On December 2, 2003, noting that Lopez had failed to complete his therapy, Dr. Staggs stated that Lopez was at maximum medical improvement and finally released him to a fifty-pound weight-lifting limit. Dr. Staggs assigned a 5% impairment rating to the body as a whole.

¶ 6. Dawn Paradis, a rehabilitation case manager, assisted Lopez in finding employment. Paradis initially evaluated Lopez on November 3, 2004. Any work searches were submitted to Dr. Staggs for his approval as to the physical requirements of the job. Post-injury, Lopez worked for a short time installing tile and, at another time, as a Spanish translator. At the time of trial, Lopez stated that he had not looked for employment for approximately eighteen to twenty-four months. Lopez testified that his back had improved and that he was not taking any prescription medication for his pain.

STANDARD OF REVIEW

¶ 7. The standard of review in workers’ compensation cases is well established. The decision of the Commission will be reversed only if it is not supported by substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law. Weatherspoon v. Croft Metals, Inc., 853 So.2d 776, 778(¶ 6) (Miss.2003) (citing Smith v. Jackson Constr. Co., 607 So.2d 1119, 1124 (Miss.1992)). If the Commission’s decision and findings of fact are “supported by substantial evidence, then we are bound by them” even if we would have been convinced otherwise. Spann v. Wal-Mart Stores, Inc., 700 So.2d 308, 311(¶ 12) (Miss.1997) (citing Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988)). We exercise de novo review on matters of law. KLLM, Inc. v. Fowler, 589 So.2d 670, 675 (Miss.1991).

DISCUSSION

¶ 8. In his only issue on appeal, Lopez argues that the decision of the Commission was not supported by substantial evidence. Lopez’s argument concerns the award of permanent partial disability benefits and not the temporary total benefits. Disability is defined as incapacity due to injury to earn the wages which the employee was receiving at the time of the injury in the same or other employment. Miss.Code Ann. § 71-3-3© (Rev.2000). If, after reaching maximum medical improvement, the claimant has not returned to work, “the claimant must establish either that he has sought and been unable to obtain work in similar or other jobs or show that, upon his reaching maximum medical improvement, he reported back to his employer and the employer refused to reinstate or rehire him.” Chestnut v. Dairy Fresh Corp., 966 So.2d 868, 871(¶ 5) (Miss.Ct.App.2007) (citing Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1226 (Miss.1997)).

¶ 9. After being laid off from his job with Zachry, Lopez worked for approximately two months installing tile, and for a short time, he worked as a translator. At the time of the hearing, on September 10, 2007, Lopez testified that he had not looked for a job in the last eighteen to twenty-four months. According to the testimony, Lopez had been unemployed for approximately four years. Lopez testified that he quit looking for work after his wife gave birth to their third child in November 2004. Lopez stated that his wife’s salary and benefits were such that it made sense for him to stay home and care for his youngest child rather than find another job.

¶ 10. The vocational expert, Paradis, periodically sent Lopez lists of available jobs. Paradis sent Lopez approximately five available jobs in 2004 and three in 2005. It is unclear from the record if Lopez applied for every job. Ultimately, his relationship with Paradis did not result in any gainful employment. Lopez also testified that a former employer offered him a job making up to $500 per week, which he declined. Lopez attempted to backtrack during this testimony, stating that he did not consider the job offer legitimate. However, Lopez made it clear during his testimony that he chose to stay at home and not seek employment.

¶ 11. The ALJ noted Lopez’s predicament in deciding to stay at home, but determined that this decision did not alleviate Lopez’s duty to seek employment. The ALJ ultimately found that Lopez had not satisfied his burden of seeking alternative employment. Noting that the evidence did support some loss of wage-earning capacity, the ALJ awarded Lopez permanent partial disability benefits of fifteen dollars per week for 450 weeks. The Commission affirmed the ALJ’s decision. We find substantial evidence to support the decision; thus, we affirm.

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

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


author: ISHEE, J.,

text:
    Khristoffer Mandell HEARRON, Appellant v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, Appellee.
    No. 2008-CP-01683-COA.
    Court of Appeals of Mississippi.
    Nov. 24, 2009.

      Khristoffer Mandell Hearron, appellant, pro se.
    Office of the Attorney General by Jane L. Mapp, attorney for appellee.
    Before KING, C.J., BARNES, ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court.

¶ 1. In November 1990, Khristoffer He-arron was convicted of possession of cocaine and sentenced to serve three years in the custody of the Mississippi Department of Corrections (MDOC) and placed in the Regimented Inmate Discipline Program (RID). In June 1991, after completing the RID program, the remainder of Hearron’s sentence was suspended and he was placed on five years’ probation.

¶ 2. Hearron’s probation was subsequently revoked, and he was returned to the custody of the MDOC to complete the remainder of the three-year sentence previously imposed. In June 1992, Hearron completed his sentence and was released from the MDOC’s custody.

¶ 3. Currently, Hearron is serving a thirty-year sentence as a habitual offender for possession of cocaine with intent to distribute. He began serving this sentence, his third drug charge, in August 1995.

¶ 4. In June 2008, Hearron filed a motion for judicial review seeking monetary damages from the MDOC for his 1990 incarceration. In that motion, Hearron alleged that he served too long a sentence after his probation was revoked and that it was illegal to enhance his current sentence as a habitual offender with the 1991 incarceration.

¶ 5. The Leflore County Circuit Court, treating the filing as a motion for post-conviction relief, held a pre-hearing on He-arron’s motion in September 2008. Finding that the motion was time-barred, both civilly for money and as a post-conviction petition, the trial court dismissed the matter with prejudice. Aggrieved by the decision, Hearron appeals asserting that the trial court erred in dismissing his motion as procedurally barred. Agreeing with the trial court’s judgment, we affirm.

DISCUSSION

¶ 6. Hearron argues that his motion should not have been dismissed as time-barred since he sought judicial review pursuant to Mississippi Code Annotated section 47-5-807 (Rev.2004), within thirty days of receiving a final adverse decision of a grievance filed with the MDOC’s Administrative Remedy Program (ARP). Hearron asserts that although the statute of limitations is normally applicable to a cause of action, the statute of limitations does not apply if the offender uses the ARP and then seeks judicial review within the thirty days proscribed by statute. Because the MDOC accepted his grievance, Hearron argues that the MDOC waived the right to assert his claim as time-barred.

¶ 7. Hearron is seeking monetary damages and a ruling that because he was held too long on the 1990 conviction, the conviction is illegal. Hearron filed this complaint in 2008 — about seventeen years after the alleged harm occurred. The statute of limitations for post-conviction relief is three years. Miss.Code Ann. § 99-39-5(2) (Rev.2007). Therefore, under the statute of limitations for post-conviction relief, Hearron is time-barred from seeking relief on this action.

¶ 8. Next, Hearron argues that his 1990 conviction should not have been used to enhance his current sentence. This argument is also time-barred by the three-year statute of limitations because Hear-ron’s current sentence was affirmed by the Mississippi Court of Appeals ten years before the present case was filed. Hearron v. State, 708 So.2d 98 (Miss.Ct.App.1998), cert. denied, 726 So.2d 594 (Miss.1998).

¶ 9. Hearron’s motion for judicial review pursuant to Mississippi Code Annotated section 47-5-807 was dismissed by the trial court because his underlying claims were untimely filed. Mississippi Code Annotated section 47-5-807 provides: “Any offender who is aggrieved by an adverse decision rendered pursuant to any administrative review procedure under [sjections 47-5-801 through 47-5-807 may, within thirty (30) days after receipt of the agency’s final decision, seek judicial review of the decision.” The trial court reviewed the denial of Hearron’s grievance by the ARP and found that he was appropriately denied relief because his claims were procedurally barred.

¶ 10. Hearron has presented no authority to support his argument that if an offender is held past his release date, that conviction becomes illegal and cannot be used for enhancement purposes in later proceedings. “It is well established that appellate courts in Mississippi will not review any issues on appeal if the party fails to cite relevant support of his or her arguments.” Jackson Motor Speedway, Inc. v. Ford, 914 So.2d 779, 783(¶ 11) (Miss.Ct.App.2005) (quoting Lambert v. Lambert, 872 So.2d 679, 682(¶14) (Miss.Ct.App.2003)).

¶ 11. Procedural bar notwithstanding, we find that in his brief, Hearron asserts that he was not given credit for time served on his 1990 conviction. Hear-ron argues that his RID time and post-revocation time together total 590 days served on his three-year sentence for possession of cocaine. Hearron asserts that he should have served only fifty percent of the three-year sentence, or 542 days. As the MDOC representative Gloria Gibbs testified at the September 2008 pre-hear-ing, there was no law in effect at the time Hearron committed his crime that required that an offender serve only fifty percent of his sentence. Mississippi Code Annotated section 47-5-138 (Supp.2009) does limit the maximum amount of earned time and meritorious earned time an offender could receive to one-half of his total sentence, but there was nothing in the statute that automatically entitles an offender to serve only fifty percent of his sentence.

¶ 12. Hearron’s claims are proeedurally barred because they were filed outside of the statute of limitations, and he fails to offer legal support on appeal for his arguments. Because of the reasons stated above, the dismissal of Hearron’s motion for post-conviction relief is affirmed.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LE-FLORE COUNTY.

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

      . The RID Program seeks to divert offenders from criminal behavior by allowing them the opportunity to earn an early release by successful completion of the program requirements.


author: IRVING, J.,

text:
    Darian DYE, Appellant, v. Frances DYE, Appellee.

    No. 2008-CA-00712-COA.
    Court of Appeals of Mississippi.
    Dec. 1, 2009.

      Richard Shane McLaughlin, Mechelle Nicole McLaughlin, attorneys for appellant.
    Will R. Ford, New Albany, William L. Griffin Jr., Jackson, attorneys for appellee.
    Before KING, C.J., IRVING and CARLTON, JJ.

      . The appellee's name is spelled in the record as both Francis and Frances. We have determined that the correct spelling is Frances; thus, we use this spelling.

   IRVING, J.,

for the Court.

¶ 1. The Pontotoc County Chancery Court granted Darían and Frances Dye an irreconcilable differences divorce. The chancellor awarded Frances sole legal and physical custody of the parties’ three minor children and divided the marital estate. Feeling aggrieved, Darían appeals and asserts that the chancellor erred by classifying his retirement account, as well as tractors and other equipment, as marital property, and that the chancellor abused his discretion by ordering Darían to provide Consolidated Omnibus Budget Reconciliation Act (COBRA) insurance to Frances.

¶ 2. We find merit to Darian’s claim that the chancellor erred in the distribution of the marital estate. Therefore, we affirm in part and reverse and remand in part for further consideration consistent with this opinion.

FACTS

¶ 3. Darían and Frances were married on June 6, 1995, and one child was born to this union on July 22, 1998. Frances has two children from a previous marriage. The parties were living together as husband and wife in Pontotoc County on October 7, 2005, when Frances filed a complaint for divorce on the ground of habitual cruel and inhuman treatment. Darían filed an answer and counterclaim, wherein he asserted that he should be granted a divorce on the ground of habitual cruel and inhuman treatment.

¶ 4. Also, on October 7, 2005, Frances filed a motion for emergency relief with the chancery court, seeking, among other things, immediate temporary legal and physical custody of the children. In her motion, Frances asserted that she had “learned that [Darían] is accused of serious misconduct involving ... one or more of the parties’ minor children.” The chancellor granted Frances’s motion. On November 28, 2005, the chancery court, on its own motion, appointed a guardian ad litem. The record reflects that Darían was indicted for one charge of sexual battery and one charge of fondling one of the children. Following a jury trial, Darían was acquitted of both charges on April 14, 2007.

¶ 5. On July 12, 2006, the parties withdrew their fault-based grounds and consented to an irreconcilable differences divorce. They submitted issues upon which they could not agree to the chancery court for resolution. The divorce action proceeded to trial on July 12, 2006, and, after several continuances, concluded on December 14, 2007.

¶ 6. At the conclusion of the trial, the chancellor rendered a bench opinion. In his analysis of the Ferguson factors, the chancellor found that both parties had dissipated marital assets in the following manner: Frances’s cashing in of her IRA, which was valued at $25,000; Darian’s sale of a 1995 GMC Jimmy; and Darian’s cashing in of stock valued at $5,770. Thus, the chancellor concluded that Frances owed Darían $12,500 for his share of her IRA and that Darían owed Frances $2,885 for her share of the stock. The chancellor also ordered Darían to pay Frances $1,701.05 for his half of one of the children’s medical bills. Then, the chancellor valued the marital estate and awarded $183,567 to Frances and $182,451.95 to Darían. After making the appropriate adjustments for the parties’ dissipation of assets, including the GMC Jimmy and the unpaid medical bills by Darían, the amount of Frances’s share was reduced by $5,413.95. Also, the chancellor awarded sole legal and physical custody of the children to Frances and ordered Darían to make monthly child support payments of $485.55.

¶ 7. On March 3, 2008, the chancellor issued a final judgment wherein he incorporated the findings made in his bench opinion. On March 14, 2008, Darían filed a motion to alter or amend the judgment pursuant to Rule 59 of the Mississippi Rules of Civil Procedure. Shortly thereafter, the chancery court issued an order, overruling Darian’s motion. However, the chancery court clarified its final judgment as to the amount that Darían had to pay Frances as reimbursement for medical expenses.

¶ 8. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 9. An appellate court “employs a limited standard of review for the division and distribution of property in a divorce proceeding.” Phillips v. Phillips, 904 So.2d 999, 1001(¶ 8) (Miss.2004) (citing Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997)). The chancellor’s findings of fact will not be disturbed “unless the chancellor was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id. (citing Owen v. Owen, 798 So.2d 394, 398(¶ 10) (Miss.2001)). Appellate courts “look to the chancellor’s application of the Ferguson factors when reviewing questions of equitable distribution.” Id. (citing Ferguson, 639 So.2d at 928).

1. Distribution of the Marital Estate (a) Retirement Account

¶ 10. Darían asserts that the chancellor erred by factoring his Day-Brite retirement account, valued at $68,803, into the distribution of the marital estate. We note at the outset that the evidence as it relates to the amount, if any, that remains in Darian’s retirement account is unclear. At trial, Darian testified that he had expended approximately $30,000 of the $68,803 in order to pay bills and other expenses. Thus, according to Darian’s trial testimony, it appears that only $38,803 remains in the Day-Brite account. However, Darian argues on appeal that he was forced to expend his entire retirement account on legal representation to defend himself against the criminal charges brought against him. Specifically, Darian argues that defending the criminal charges was “financially devastating” to the point that he spent his life savings, including his retirement account, to pay legal expenses.

¶ 11. The chancellor awarded the entire Day-Brite account to Darian, which, according to the chancellor, was valued at $68,803. The chancellor did not discuss Darian’s testimony that he had expended approximately $30,000 of the account. Because we are unable to conclude from the record whether Darian’s retirement account was completely depleted or was reduced by only $30,000, we reverse and remand for the chancellor to make a determination of the amount, if any, that remains in the retirement account. Also, the chancellor should make a determination as to whether Darian’s expenditures, which were made with money withdrawn from the account, were legitimate marital expenses that should not be charged against him.

¶ 12. Darian also argues that the chancellor erred in failing to find that the portion of the retirement account that he had accumulated prior to the marriage is his separate estate. The record clearly reflects that Darian became employed at Day-Brite in 1987 and worked there until 2000. Thus, Darian argues that since he and Frances did not marry until 1995, the portion of the retirement account that he had earned prior to his marriage is his separate property. Accordingly, Darian asserts that the chancellor erred in classifying his entire retirement account as marital property.

¶ 13. Darian directs our attention to Arthur v. Arthur, 691 So.2d 997 (Miss.1997), as he contends that it supports his position. In Arthur, the chancellor awarded one-half of Jerry Arthur’s retirement account to his former wife, Peggy, even though the retirement funds had been accumulating prior to their marriage. Id. at 1003. On appeal, our supreme court reversed the chancery court and held that “[a]ssets are not subject to distribution where it can be shown that such assets ‘are attributable to one of the parties’ separate estates prior to the marriage or outside the marriage.’” Id. at 1002. In reaching its decision, the Arthur court opined:

Indeed, the retirement funds at issue not having been “acquired or accumulated during the marriage,” they do not fall within Hemsley ⅛ definition of marital assets subject to equitable distribution. [Hemsley v. Hemsley,] 639 So.2d [909,] 915 [ (Miss.1994) ] (emphasis added). The evidence indicates instead that these funds are “attributable to one of the parties’ separate estates prior to the marriage.” Id. at 914 (emphasis added). Jerry’s retirement funds which were accumulated prior to the parties’ marriage are therefore clearly the type of assets this Court determined in Hems-ley would not be subject to equitable distribution upon divorce. Peggy Arthur thus was not entitled to one-half of Jerry’s pension funds accumulated pri- or to the marriage, nor to any portion of the interest thereon. There having been no evidence at trial as to what portion of the funds was accumulated prior to the marriage, we reverse this award and remand for a determination thereof.

Id. at 1003-04 (third emphasis added).

¶ 14. We reach the same conclusion as did the Arthur court. The chancellor erred in considering the entirety of Dari-an’s retirement account as a part of the martial estate. Clearly, the portion of the retirement account that accumulated prior to the parties’ marriage is Darian’s separate property. On remand, the chancellor must determine the percentage of the retirement account that was accumulated prior to the marriage and deduct that amount from the total amount of the retirement account that had been accumulated at the time of the divorce. As previously noted, the chancellor must also determine whether any portion of the retirement account was improperly dissipated during the marriage, and if so, make the proper adjustments during the equitable redistribution of the marital estate.

(b) Equipment

¶ 15. Darian also asserts that the chancellor erred in classifying two Ford tractors, a bush-hog, and a finishing mower, with a total value of $30,000, as marital property. Darian points to his trial testimony that the equipment belonged to his father and that he simply insured it under his homeowners insurance policy because it was cost-effective to do so. Darian testified that he did not own any of the equipment. Therefore, Darian contends that the chancellor erred in finding that the equipment was marital property. He further asserts that, even if the chancellor did not err in considering the equipment to be marital property, the chancellor nevertheless erred in treating all of it as marital property because the evidence, as reflected by his testimony, is that he owned only a one-third interest in the equipment. We note that Darian’s testimony was not the only evidence before the chancellor on this point. Frances also testified regarding the ownership of the equipment, although her testimony on the matter did not necessarily disprove Darian’s assertion that the equipment was owned by his father, or at best, that he owned only a one-third interest in it. She testified as follows on direct examination:

Q. There’s some testimony last time about two Ford tractors, a bush-hog, and a finishing mower, which you valued at $30,000.00. I believe Mr. Dye testified that /all didn’t own those; is that correct?
A. Yes, sir.
Q. Would you tell us the stories on those tractors and who you think owns them and why?
A. I believe they were owned by us. Darian indicated that his father had given them to us. They stayed on our property, and we insured them, and they were used for the upkeep of our property.
Q. And /all provided the insurance on them?
A. Yes, sir.

¶ 16. Then, on cross-examination, Frances gave the following testimony:

Q. Mrs. Dye, I’m going to hand you a document. Do you recognize that document?
A. No.
Q. Is that not an application concerning a particular tractor that is titled in Don Dye & Sons’ business?
A. It appears to be an invoice.
Q. And what is that invoice for?
A. It says — okay. Used 3930 Ford tractor, perhaps, and a new bush-hog.
Q. And in whose name is it in?
Don Dye & Sons. >
And do you recognize this document, this Bill of Sale? cO
I’ve never seen it before. No. t>
What does that document purport to be? <€>
Let me read it, please. (Reviewing document.) It’s a Bill of Sale.
And it’s a Bill of Sale for what? &
A Ford 8930 tractor. <¾
And whose name is it in? o?
Don Dye. <j
And that’s not Darían Dye, is it? <y
No. It looks like it’s a year after the invoice. <
Could it be two different tractors? <©
There’s nothing to tell you what this represents specifically. He purchased a lot of tractors. >
Okay. The point being, Mrs. Dye, is most of those tractors if not all of those tractors that were on your premises out there were in the name of Don Dye & Sons; correct? &
That’s correct. p>
So, at best, he owned a third interest in the tractor; correct? <©
If we’re going that way with it, then he would own a third interest in all the tractors that were there.
Well, how many tractors were there? &
Six to eight. i>
WOiat were the names of them and what were the values of them? <©
There was four or five Fords. I think he still had the John Deere. He might have still had a Case tractor.
Y’all had 31 acres total; correct? <©
That’s correct. i>
Q. Is it not — is it not unreasonable to you that you that you would need to own two tractors?
A. The reason being that I was told was that Darían kept one hooked up to a bush-hog and one hooked up to a finishing mower, and those two were never put out where the other tractors were being sold. Darían kept those behind his shop.

¶ 17. As reflected above, Frances conceded that Darían owned at least a one-third interest in the equipment that was kept on their property; however, as noted, Darían testified that he did not have an ownership interest in the equipment. “Where conflicting testimony is presented, expert and otherwise, the chancellor is required to make a judgment on the credibility of the witnesses in order to resolve the questions before the court.” Broadhead v. Bonita Lakes Mall, Ltd., 702 So.2d 92, 101(¶ 32) (Miss.1997) (citing Doe v. Doe, 644 So.2d 1199, 1207 (Miss.1994)). The chancellor determined that the equipment was marital property and stated the following:

There are two tractors and a bush hog. There’s testimony about this. Now, Da-rían testified that his father owned this equipment and it was cheaper for him to add to it on his homeowner’s insurance rather than ensure [sic] it through the business. Francis [sic] valued this at $27,000 based on insurance coverage. She testified that Darían told her that his father gave it to them. They were used for the upkeep on their property. They provided insurance on it. The Court finds that really those are marital assets and that they did, in fact, exist.

In making his determination, the chancellor considered the evidence before him, i.e., the testimonies of Darían and Frances. We cannot say that, based on the evidence before him, the chancellor was manifestly wrong or clearly erroneous in finding that the equipment was marital property. We find no merit to this issue.

2. COBRA Health Insurance

1118. Darían also argues that the chancellor erred in ordering him to provide COBRA health insurance for Frances. The chancellor ordered the following: “Da-rían shall provide Frances with COBRA health insurance coverage commencing on January 1, 2008, and continue said coverage for so long as allowed by law.” In Ferguson, 639 So.2d at 936, our supreme court affirmed a chancellor’s order that the husband provide COBRA insurance coverage to his wife “for as long as the law allowed.” The court determined that pursuant to 29 U.S.C.S. § 1162(2)(A)(iv) (1993) and 29 U.S.C.S. § 1163(3) (1993) this period is thirty-six months. Id. Based on Ferguson, we cannot find that the chancellor erred in ordering Darían to provide COBRA insurance to Frances for thirty-six months. This issue lacks merit.

¶ 19. THE JUDGMENT OF THE PONTOTOC COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT AND ONE-HALF TO THE APPELLEE.

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

      . Darían raises four issues; however, for the sake of clarity, we address as one issue the issues as they relate to the chancellor’s classification of the marital property.

      . In Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994), the Mississippi Supreme Court set forth factors that chancellors must consider when equitably dividing a marital estate.


author: ROBERTS, J., LEE, P.J.,

text:
    SKL INVESTMENTS, INC., Appellant v. AMERICAN GENERAL FINANCE, INC., Appellee.
    No. 2008-CA-01575-COA.
    Court of Appeals of Mississippi.
    Dec. 1, 2009.

      Parker Hays Still, Batesville, Mark Thompson Segars, Iuka, attorneys for appellant.
    Douglas L. Tynes, Pascagoula, attorney for appellee.
   ROBERTS, J.,

for the Court.

¶ 1. On August 31, 2002, a one-acre tract of land located in Booneville, Mississippi that was owned by Genise Roland was sold to SKL Investments, Inc., (SKL) for unpaid county taxes for the 2001 fiscal year. At some point prior to the two-year redemption period, the Prentiss County Chancery Clerk sent notice of the tax sale to all proper parties, including American General Finance, Inc. (American General), a lienholder. After the two-year redemption period had expired, the chancery clerk executed a tax deed to SKL.

¶ 2. On August 16, 2006, SKL filed a complaint in the Prentiss County Chancery Court to quiet title to the property. American General answered and asserted that the tax sale was void because it did not receive notice pursuant to Mississippi Code Annotated section 27-43-5 (Rev. 2006). American General also asserted that the tax sale was void because the chancery clerk failed to follow the proper procedures as set forth in Mississippi Code Annotated section 27-43-9 (Rev.2006).

¶ 3. After a hearing, the chancellor found that American General did not receive notice of the tax sale; thus, the tax sale was void as to American General. However, the chancellor confirmed SKL’s tax sale purchase of the property, subject to American General’s lien. SKL appeals, asserting the following issues: (1) the chancellor erred in finding that American General failed to receive proper notice of the tax sale; (2) the chancellor erred in confirming the SKL’s tax-sale purchase of the property subject to American General’s lien; and (3) the chancellor erred in failing to award SKL damages and interest. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 4. Our standard of review of a chancellor’s decision is well settled: We will not disturb a chancellor’s findings unless they are manifestly wrong, clearly erroneous, or the chancellor applied an erroneous legal standard. Stokes v. Campbell, 794 So.2d 1045, 1047-48(119) (Miss.Ct.App.2001). We review questions of law de novo. Gillespie v. Kelly, 809 So.2d 702, 705(¶ 9) (Miss.Ct.App.2001).

ANALYSIS

I. NOTICE

¶ 5. SKL argues that the chancellor erred in finding that American General failed to receive notice of the tax sale. Mississippi Code Annotated section 27-43-5 establishes the chancery clerk’s duty to provide notice of a tax sale to lienholders when land is to be sold for taxes. Section 27-43-5 provides as follows:

It shall be the duty of the clerk of the chancery court to examine the record of deeds, mortgages and deeds of trust in his office to ascertain the names and addresses of all mortgagees, beneficiaries and holders of vendors liens of all lands sold for taxes; and he shall, within the time fixed by law for notifying owners, send by certified mail with return receipt requested to all such lienors so shown of record the following notice, to-wit:
[Notice form omitted.]

¶ 6. Sometime in June 2004, American General received, by certified mail, an instrument entitled “2001 Delinquent Tax Notices.” The document did not contain the name of the property owner, a description of the land, the book and page number of the deed of trust, or the purchaser of the property at the tax sale. During the subsequent hearing, the chancery clerk testified that it was customary to send a cover page to lienholders with the list of properties attached and the property identified by a “PPIN” number. However, a copy of the notice sent to American General was not retained in the chancery clerk’s files.

¶ 7. Furthermore, the chancery clerk failed to follow the requirements of Mississippi Code Annotated section 27-43-9, which provides:

Upon completing the examination for said liens, the clerk shall enter upon the tax sale book upon the page showing the sale a notation to the effect that such examination had been made, giving the names and addresses, if known, of said lienors, the book and page where the liens are created, and the date of mailing by registered mail the notice to the lien-ors. If the clerk finds no liens of record, he shall so certify on said tax sale book. In each instance the clerk shall date the certificate and sign his name thereto.

In its brief, SKL concedes that the chancery clerk did not strictly follow section 27-43-5 and section 27-43-9. Even so, SKL argues that American General should not be permitted to “escape on a technicality.” However, “[statutes dealing with land forfeitures for delinquent taxes should be strictly construed in favor of the landowners ... [and] [a]ny deviation from the statutorily[-]mandated procedure renders the sale void.” Roach v. Goebel, 856 So.2d 711, 716(¶ 29) (Miss.Ct.App.2003) (citations omitted). We conclude that American General did not receive the statutorily-required notice; thus, the chancellor correctly found that the tax sale was void as to American General. This issue lacks merit.

II. AMERICAN GENERAL’S LIEN

¶ 8. Next, SKL argues that the chancellor was correct when he confirmed the tax sale, but he erred in holding that the property at issue was subject to American General’s lien. SKL argues that a valid tax sale extinguishes any existing lien of deed of trust. However, the case SKL cites as authority, Hancock Bank v. Ladner, 727 So.2d 743, 746(¶ 6) (Miss.Ct.App.1998), is distinguishable as it dealt with a lien for a deed of trust that was executed between the date of the valid tax sale and the end of the two-year redemption period, and most importantly, the mortgagee received valid notice of the tax sale but took no action.

¶ 9. Mississippi Code Annotated section 27-43-11 (Rev.2006) states, in pertinent part, that:

A failure to give the required notice to such lienors shall render the tax title void as to such lienors, and as to them only, and such purchaser shall be entitled to a refund of all such taxes paid the state, county or other taxing district after filing his claim therefor as provided by law.

(Emphasis added). American General takes the position that the phrase “as to them only” supports the chancellor’s decision to confirm the tax sale subject to American General’s lien. We agree.

¶ 10. It is clear that the failure to give proper notice to a lienholder renders that tax sale void as to that lienholder. See Gober v. Chase Manhattan Bank, 918 So.2d 840, 843(¶ 10) (Miss.Ct.App.2005). The Mississippi Attorney General’s Office has opined that “a chancery clerk may not certify a tax sale that is void due to the failure to give proper notice to a lienholder.” Miss. Att’y Gen. Op. No. 03-0506, Dew (Oct. 17, 2003); see also Miss. Att’y Gen. Op. No. 97-0101, Ladner (Mar. 21, 1997). However, section 27-43-11 provides that the “failure to give the required notice to such lienors shall render the tax title void as to such lienors, and as to them only.” (Emphasis added). We interpret that provision to mean that the tax sale is confirmed as to all others except those lienholders who failed to receive the statutorily-required notice.

¶ 11. Section 27-43-11 further provides that, in the event that a tax title is rendered void for the failure to provide the required notice to a lienholder, the purchaser at the tax sale “shall be entitled to a refund of all such taxes paid the state, county or other taxing district after filing his claim therefor as provided by law” (Emphasis added). We interpret section 27-43-11 as providing an election of remedies. In the event that a tax sale is rendered void for improper notice to one lien-holder, but not others, the purchaser is faced with two options. The purchaser may opt to retain the property subject to the lien of the improperly-noticed lienholder. Alternatively, the purchaser may opt to file a claim for a refund, thereby relinquishing all rights to the property. Among other variables, the purchaser’s decision will depend on the value of the property, the amount paid for the property, and the amount of the lien on the property. Accordingly, we cannot find that the chancellor erred when he confirmed the tax sale subject to American General’s lien. This issue is without merit.

III. DAMAGES AND INTEREST TO SKL

¶ 12. In its last issue on appeal, SKL asserts that the chancellor erred in failing to award it damages and interest. As mentioned, pursuant to section 27-43-11, SKL is entitled to a refund of all the taxes paid, but only after filing a “claim therefor as provided by law.” The record does not reflect that SKL has filed a claim for a refund of the taxes it paid. Until SKL files such a claim, we can only conclude that SKL has opted to retain title to the property subject to American General’s lien.

¶ 13. SKL also argues that Mississippi Code Annotated section 27-45-27(1) (Rev.2006) supports its claim that it was entitled to damages and interest. Section 27-45-27(1) provides, in pertinent part, as follows:

The amount paid by the purchaser of land at any tax sale thereof for taxes, ... and interest on the amount paid by the purchaser at the rate of one and one-half percent ... per month, or any fractional part thereof, and all expenses of the sale and registration, thereof shall be a lien on the land in favor of the purchaser ..., if the taxes for which the land was sold were due, although the sale was illegal on some other ground.

We do not interpret section 27-45-27(1) to mean that, where a tax sale is rendered void as to one lienholder, but not to others, the purchaser may recover statutory damages against the non-voided lienholder. Instead, section 27-45-27(1) holds that, if taxes were due on certain property and the tax sale was illegal, the amount that a purchaser pays at a tax sale, as well as “all expenses of the sale and registration,” becomes a lien for the purchaser. Here, however, the chancellor held that SKL purchased the property at issue, but that the property was subject to American General’s lien because American General did not receive proper notice of the tax sale. If SKL were allowed to recover from American General and allowed to retain its interest in the property, SKL would receive an inequitable windfall.

¶ 14. Finally, SKL claims it is entitled to damages and interest pursuant to Lawrence v. Rankin, 870 So.2d 673, 677(¶ 21) (Miss.Ct.App.2004). However, Lawrence concerned the remedy due when a landowner — not a lienholder — -did not receive proper notice of a tax sale. Id. at 676(¶ 13). This Court held that a chancellor erred when he did not order a landowner to pay a purchaser interest due pursuant to Mississippi Code Annotated section 27-45-3 (Rev.2002) of “one and one half percent per month, together with damages thereon at a rate of 5% per annum on such amount due.” Id. at 677(¶ 21). Additionally, Mississippi Code Annotated section 27-45-3 (Rev.2006) applies to redemption of land sold for taxes. There has been no redemption in this case. To the extent that this case, like Lawrence, contains factual similarities involving improper notice of the tax sale, this case is distinguished from Lawrence in that this case does not involve improper notice to the sole landowner. Instead, this case involves improper notice to one lienholder. Accordingly, section 27-43-11 applies and sets forth that SKL is entitled to a refund of the amount it paid at the tax sale if it elects to file a claim for that amount. We find no merit to this issue.

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

KING, C.J., GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. LEE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MYERS, P.J., AND JOINED IN PART BY IRVING, J.

LEE, P.J.,

Dissenting.

¶ 16. With respect to the majority, I dissent. While I agree that American General Finance, Inc., did not receive proper notice, I find that the failure to give proper notice renders the entire tax sale void, not just as to American General. “Statutes dealing with land forfeitures for delinquent taxes should be strictly construed in favor of the landowners [and] [a]ny deviation from the statutorily[-]mandated procedure renders the sale void.” Rebuild America, Inc. v. Milner, 7 So.3d 972, 974(¶ 7) (Miss.Ct.App.2009) (internal citations omitted).

¶ 17. The majority is correct that failure to give proper notice to a lienholder renders that tax sale void. Mississippi Code Annotated section 27-43-11 (Rev. 2006) provides that the “failure to give the required notice to such lienors shall render the tax title void as to such lienors, and as to them only[.]” The majority interprets this to mean that notice to the principal owner, having been validly given, need not be re-noticed due to any deficient notice to the lienholder, thereby sanctioning a piecemeal conveyance. Obviously, the principal owner would be identified on any lien, and one can only imagine that the intent of the Legislature was that the principal owner would not have to be noticed also with the lienholder in addition to having received their separate individual notice. Nevertheless, failure to give a proper and correct notice in any respect whether as to the description or otherwise has rendered the tax deed void in its entirety. Surely, the Legislature has never intended to sanction piecemeal conveyances in tax sales. To do so would create havoc, confusion, and strange bedfellows to any other non-noticed existing co-owners. By the inclusion of this extra language, the Legislature may very well have proved Cicero’s admonition, “Summum ius summa injuria” (the more law, the less justice).

¶ 18. Without citing supportive authority, the majority interprets “as to them only” to mean that the tax sale is confirmed as to all others except those lienors who failed to receive proper notice. I do not imagine that the Legislature intended for tax-sale purchasers to retain land with a lien attached. If a tax sale is considered void, then the tax sale may not be certified. The Legislature intended that the purchaser of land at a tax sale “shall” receive “a perfect title with the immediate right of possession.” Miss. Code Ann. § 27-45-23 (Rev.2006). Mississippi law favors landowners retaining their property as opposed to a tax-sale purchaser receiving a windfall. The trade-off is the purchaser receives interest and penalties on his expenditure. To allow otherwise would open Pandora’s box and result in confusion in the ownership of property.

¶ 19. The purpose of providing notice is to allow owners or lienors the opportunity to redeem the land before the tax sale is certified. The Mississippi Attorney General’s Office has opined that “a chancery clerk may not certify a tax sale that is void due to the failure to give proper notice to a lienholder.” Miss. Att’y Gen. Op. No. 03-0506, Dew (Oct. 17, 2003); see also Miss. Att’y Gen. Op. No. 97-0101, Ladner (Mar. 21, 1997). If the tax sale cannot be certified, then “[p]roper notice should be provided to the lienholder [pursuant to statute] ... and the property should be sold at the next tax sale if the taxes are not paid.” Miss. Att’y Gen. Op. No. 03-0506, Dew (Oct. 17, 2003).

¶ 20. Furthermore, although there is scant case law on the subject, case law appears to support the proposition that tax sales are not voided piecemeal. See Reid v. Fed. Land Bank of New Orleans, 166 Miss. 392, 148 So. 392, 393 (1933) (affirmed the chancery court’s decision to void tax deed for failure to properly notice the lien- or); Gober v. Chase Manhattan Bank, 918 So.2d 840, 843(¶ 8) (Miss.Ct.App.2005) (affirmed the chancellor’s decision to void tax sale, reinstate deed of trust, and confirm title to the property to the lienor); see also Kron v. First Fed. Sav. & Loan Ass’n of Hattiesburg, 449 F.2d 865, 867 (5th Cir.1971) (upheld summary judgment in favor of lienor and current property owner, finding that expiration of the redemption period following sale of property at tax sale was fatal to the purchaser’s claim to the property in question and that the tax sale did not impair the lienor’s right to foreclose after the redemption period and convey the property to another).

¶ 21. The last part of section 27-43-11 reads as follows: “[A]nd such purchaser shall be entitled to a refund of all such taxes paid by the state, county or other taxing district after filing his claim therefor as provided by law.” Clearly, the Legislature anticipated this situation by crafting a remedy for the purchaser to receive a refund if such tax sale was deemed void. Since the Legislature has given the lienor the opportunity to redeem the land if properly given notice, I disagree with the majority that this particular language allows the tax purchaser an election of remedies. If the property had been redeemed, then the purchaser would be paid back the amount he paid at the tax sale and the amount he paid in taxes after the sale, including any interest, penalties, and costs provided by statute.

¶22. In regard to SKL Investments, Inc.’s request for damages, I agree that SKL is entitled to a refund of all taxes paid, but only after SKL files a claim for a refund.

¶ 23. For the foregoing reasons, I find that the chancellor abused his discretion in confirming the tax sale subject to American General’s lien.

MYERS, P.J., JOINS THIS OPINION. IRVING, J., JOINS THIS OPINION IN PART.

      . In its complaint, SKL also named as defendants Genise Roland a/k/a Genise R. Crayton and her husband Johnny Crayton, the fee title holders, and Annise Roland, the then-possessor of the property, all of whom had failed to pay the 2001 county taxes on the property at issue. Those parties were personally served with process and did not respond to or otherwise contest SKL's complaint to quiet title.