author: WINDHORST, J,

text:
    Jennifer SCOTT v. GALLERIA OPERATING CO., L.L.C., Feil Organization, L.L.C., Feil Organization Louisiana, L.L.C., Broadwall Management Corporation, Chubb Services Corporation, and U.S. Speciality Insurance Company
    NO. 17-CA-104
    Court of Appeal of Louisiana, Fifth Circuit.
    November 15, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, JENNIFER SCOTT, John J. Rad-ziewicz, New Orleans.
    COUNSEL FOR- DEFENDANT/AP-PELLEE, FEIL ORGANIZATION, LLC, BROADWALL MANAGEMENT CORPORATION, CHUBB SERVICES CORPORATION, AND US SPECIALTY INSURANCE COMPANY, Sidney J. An-gelle, Stephen J. Eckholdt .
    COUNSEL FOR DEFENDANT/AP-PELLEE, GALLERIA OPERATING CO., LLC, Nahum D. Laventhal ,
    Panel composed of Judges Robert M. Murphy, Stephen J, Windhorst, and Hans J. Liljeberg
   WINDHORST, J,

h Appellant, Jennifer, Scott, appeals the trial court’s September 7, 2016 judgment granting summary judgment in, favor of appellees,. Galleria Operating Co., LLC (Galleria); Feil Organization, LLC (Feil); Feil Organization Louisiana, LLC (Feil La); Broadwall Management Corporation (Broadwall); Chubb Services Corporation (Chubb); and US, Specialty Insurance Company (US .Specialty), and dismissing appellant’s case with prejudice. For the reasons that follow, we affirm.

Facts and Procedural History

On May 16, 2014, appellant was an employee of Louisiana Singles, Inc., which had offices on the 23rd floor of the Galleria office building (The Galleria) located at 1 Galleria Boulevard in Metairie. When appellant arrived for work, she parked on the second floor of the parking garage adjacent to The Galleria. Appellant was dressed in her usual ■ business attire: blouse and pants, purse on her left shoulder, and shoes with a two inch heel. Appellant exited her vehicle and started walking toward the elevator lobby entrance on the second floor of the parking garage. As appellant was .walking, the heel of her right shoe went into a “hole” that was present in the concrete surface. As a result, she fell,and allegedly sustained injuries to her right shoulder and neck, with scrapes and bruising to her right knee and right forearm.

Appellant filed a petition for damages against appellees contending that she sustained damages as a result of appellees’ negligence in failing to warn of or remedy a hazardous condition in the parking garage.

On February 19,' 2016, appellees filed a motion for summary judgment contending that: (1) the alleged defect did not present an unreasonable risk of harm; and (2) appellees did' not have actual or constructive notice of the alleged defect’ prior to the incident. After a contradictory hearing, the-trial court granted appellees’ | amotion for summary judgment and dismissed appellant’s case with prejudice. This appeal followed. '

Discussion

Appellate courts review the granting of a summary judgment de novo using the same .criteria governing the trial court’s consideration of whether summary judgment is appropriate. Duncan v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d 544, 547; Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 07/05/94), 639 So.2d 730, 750. Summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. O.C.P. art. 966 A(3).

La. C.C. art. 2317.1 governs negligence claims against the owner or custodian of property. La, C.C. art. 2317.1 provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, .vice, or defect which caused the damage, that the damage could, have been prevented by the exercise of reasonable care, and that-he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Thus, to impose liability for ah unreasonably dangerous defect, a plaintiff must show that: (1) the thing was in the defendant’s custody or control, (2) the thing had a vice or defect that presented an unreasonable risk of harm, (3) the defendant knew or should have known of the unreasonable risk of harm, and (4) the damage was caused by the defect. Vail v. Schiro Bros. Shoe Store, Inc., 16-47 (La. App. 5 Cir. 05/12/16), 193 So.3d 342, 347; Wiltz v. Floor & Decor Outlets of Am., 15-516 (La. App. 5 Cir. 02/24/16), 186 So.3d 1204, 1208. If the plaintiff fails to prove any one of these elements, the claim fails. Dauzat v. Thompson Const. Co., Inc., 02-989 (La. App. 5 Cir. 01/28/03), 839 So.2d 319, 322.

| ¡^Constructive knowledge imposes a reasonable duty to discover apparent defects under the defendant’s custody. Luquette v. Great Lakes Reinsurance (UK) PLC, 16-422 (La. App. 5 Cir. 12/21/16), 209 So.3d 342, 348. Constructive knowledge can be found if the conditions that caused the injury existed for such a period of time that those responsible, by exercise of .ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury. Boutin v. Roman Catholic Church of the Diocese of Baton Rouge, 14-0313 (La. App. 5 Cir. 10/29/14), 164 So.3d 243, 246.

On appeal, appellant contends that the trial court erred in granting appellees’ motion for summary judgment. Appellant claims that the trial court erred in finding that (1) appellees did not have a duty to know, in the exercise of reasonable care, of defects in the premises which presented an unreasonable risk of harm to others; (2) there were no genuine issues of material fact with regard to the nature of the defects and hazardous conditions present in appellees’ premises; and (3) appellees did not have actual or constructive notice of the defects and hazardous conditions present in - its premises. Because we find that appellees established that appellant could not show that appellees had actual or constructive notice of the alleged defect or hazardous condition, we pretermit appellant’s arguments regarding appellees’ duty, whether a defect existed, and if a defect.existed, whether'the defect created an unreasonable risk of harm.

In support of the motion for summary judgment, appellees attached the affidavit of The Galleria’s administrative assistant, Steven A, Wesselman, appellant’s deposition, and appellant’s answers to interrogatories.

In his affidavit, Mr. Wesselman stated that “Security officers and engineers personally walk through and inspect the property ah average of three (3) times a |4day.” The inspection included a general inspection to identify potential hazards. He also stated that the parking garage has a parking Capacity for 1,964 vehicles and is approximately 675,881 square feet. Mr. Wesselmán stated that prior to appellant’s accident, The Galleria (1) had no prior knowledge ór notice of an alleged defect in the area where appellant claimed she fell; (2) did not receive any reports of an alleged defect in the area where appellant claimed she fell; (3) did not have any employees that created the alleged hazard; (4) has employees whose primary responsibility is to patrol the property to report and correct hazards, and perform miscellaneous general security and maintenance duties; (5) commissions regular inspections, maintenance, and necessary repairs to the premises throughout The Galleria property, including the parking garage; (6) has several trained security officers who are on the property at any given time, roaming the common areas, including the parking garage, and reporting any problem areas which come to their attention; (7) has no records of incidents, defects, or repairs in the area of appellant’s alleged fall for six months prior to this incident; (8) did not receive any reports of an alleged defect in the area where appellant allegedly fell; and (9) has not had any similar incidents reported regarding the area appellant allegedly fell since this incident.

In her deposition, appellant testified that she had parked on the second floor, in the area where the accident occurred, more than once or twice. She could not recall the exact path she took from her car to the elevator on the day of the accident, but she remembered “crossing the yellow section” and two holes were present in that area. She testified that she had walked over the area in question more than once or twice, but could not say if it was a dozen times, and that she had never seen the holes before she fell. Appellant did not explain why she did not see the holes before she fell. She did admit that she was not aware of anyone else who had fallen in the | Bhole, nor could she say how long the hole had been there prior to her accident. She further admitted that she did not know if appellees knew about the existence of the hole prior to her accident.

In answers to interrogatories, appellant stated that she had previously walked across the area where the incident occurred and acknowledged that this was the only time there was a hole between her car and the elevator. She did not know anyone who knew about the defect prior to her accident and she did not know anyone who had slipped or injured themselves as a result of the defect. She did not notice the defect until she was injured.

In opposition to appellees’ motion for summary judgment, appellant attached her own affidavit, an affidavit of her expert regarding whether there was a defect in the parking garage, excerpts from Mr. Wesselman’s deposition, and excerpts from Matt Nancy’s deposition. Appellant’s affidavit and her expert’s affidavit did not address the issue of notice or the length of time the defect was present. The excerpts from Mr. Nalley’s deposition did not discuss or show that appellees had notice of the defect and that it was present for a sufficient period of time. Appellant argued that the excerpts from Mr. Wesselman’s deposition established that appellees had constructive notice of the defect and his deposition testimony contradicted his affidavit. We disagree.

Upon our de novo review of the parties’ pleadings and the evidence admitted, we find that appellees established that that there was an absence of evidence which would show that appellees had actual or constructive notice of the alleged defect (ie., hole) in the parking garage. Nor was there evidence of the length time the alleged defect existed, which is an essential element of appellant’s claim against appel-' lees. The burden shifted to appellant to show that appellees knew or should | fihave known of the alleged defect. We conclude, as did the trial court, that appellant did not meet her burden. Therefore, we find that appellees were entitled to summary judgment as a matter of law.

Conclusion

For the reasons stated above, we affirm the trial court’s September 7, 2016 judgment.

AFFIRMED

      , The trial court stated, "While the court is not opining on whether it's presenting an unreasonable risk of harm, I’m simply going to Subsection 2, that the defendant knew or should have known of the vice or defect,”

      . Referred to as "crosshatched” in yellow stripes throughout the deposition by the attorney for appellees.

      . Matt Ñalley was the employee of appellees who filled, in the hole with a small amount of Quikrete material and some water to repair the "holes.”


source: Caselaw Access Project

author: LEBLANC, J. JOHNSON, J.,

license: Public Domain

text:
    Brandon FORVENDEL v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
    NO. 17-CA-77
    Court of Appeal of Louisiana, Fifth Circuit.
    November 15, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, BRANDON FORVENDEL, James I. Maher, III, Charles M. Winters, David L. Haik'
    COUNSEL FOR DEFENDANT/APPELLANT, STATE "FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, W. Ryan Ácomb
    Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Jessie M. LeBlanc, Judge Pro Tempore
   LEBLANC, J.

hln the instant appeal, defendant-appellant, State Farm Automobile Insurance Company (“State Farm”) seeks review of the trial court’s judgment in favor of plaintiff-appellee, Brandon Forvendel. For the foregoing reasons, we find that the trial court did not manifestly err in finding that Mr. Forvendel could recover under both his own and his mother’s uninsured motorist insurance policies. Accordingly, the judgment of the trial court is affirmed.

Factual & Procedural History

On July 19, 2013, Mr. Forvendel was involved in a three-car accident while driving a vehicle he owned and which was insured by State Farm. Mr. Forvendel’s State Farm automobile insurance policy included uninsured motorist (“UM”) coverage. Following the July 2013 accident, State Farm allowed Mr. Forvendel to recover the policy limits of his UM policy. However, Mr. Forvendel, who lived with his mother, Deborah Forvendel, at the tíme of the accident, also sought to recover under her State Farm UM policy, which carried significantly higher policy limits. State Farm refused to allow him to recover under his mother’s policy. Mr. Forven-del subsequently filed suit against State Farm.

In his Petition, Mr. Forvendel argued that he is entitled to recover UM benefits pursuant to his mother’s policy because of State Farm’s actions with regard to a 2007 accident which took place under strikingly similar circumstances. The two accidents share several' important commonalities. First, in both accidents, Mr. Forvendel was injured while occupying his own vehicle, insured by State Farm. Second, at the time of both accidents, Mr. Forvendel carried UM coverage under his State Farm insurance policy. Third, Louisiana’s “anti-stacking statute,” discussed below, was in effect at the time of both accidents. Finally, at the time of both accidents, Mr. For-vendel resided with his mother, who also carried UM coverage pursuant to her own State Farm policy. . -

^Following the 2007 accident, Mr. For-vendel recovered the limits of his own State Farm UM policy. Subsequently, he sought additional recovery under his mother’s Státe Farm UM policy. On June 9, 2008, a State Farm manager wrote Mr. Forvendel’s attorney a letter with reference to the 2007 accident and Deborah Forvendel’s UM policy, stating that, “given the language in the policy ,., your client does qualify as an insured for Uninsured Motorist coverage.” Consequently, State Farm allowed Mr. Forvendel to recover under both policies in effect at the time of the 2007 accident.

Mr. Forvendel argues that State Farm, in allowing him to recover under both policies following the 2007 accident, waived its defense to allowing him to recover under his mother’s UM policy with regard to the July 2013 accident. In response to this argument, State Farm contends, that its behavior subsequent to the 2007 accident is irrelevant and cannot be used to create or expand UM coverage or recovery for Mr. Forvendel under his mother’s policy with regard to the 2013 accident.

The matter proceeded to a bench trial on August 18, 2016. Prior to trial, the parties entered into, inter alia, the following stipulations. First, the parties stipulated that Mr. Forvendel was the owner and operator of the Chevrolet Equinox involved in the motor vehicle accident that occurred on July 19, 2013. Second, the parties stipulated that Mr. Forvendel had UM coverage through State Farm, and that State Farm had allowed Mr. Forven-del to recover the limits of his own UM policy prior tó trial. Finally, Mr. Forvendel stipulated that “his cause of action does not exceed $50,000, exclusive of interest and costs.”

At trial, Mr. Forvendel and Deborah Forvendel both testified. Mr. Forvendel testified that after sustaining back injuries in his more recent accident, he had been forced to stop treatment because .he was unable to afford further treatment. Deborah Forvendel testified that she had been a State Farm customer for over twenty five years, and that her insurance policy had remained essentially unchanged during that Istime. She further testified that she was never notified that State Farm’s decision to allow Mr. Forvendel to recover under her policy for his 2007 accident had been in error.

. Two State Farm employees also testified at trial. Aaron Angel, an underwriting team manager, confirmed that only minor changes to Deborah Forvendel’s policy had been made since 2007. Further, Mr. Angel testified that Mr. Forvendel should not have been allowed to recover under his mother’s UM policy after the 2007 accident because “he was paid under his own policy and under Louisiana state law, you cannot stack coverage.” He also admitted that, to his knowledge, there had been no major changes in Louisiana’s anti-stacking provisions since then. He further testified that he had no knowledge of' any notice having ever been sent to either Mr. Forvendel or his mother to inform them that State Farm’s previous payment had been in error.

Paul Robichaux, the State Farm manager who handled Mr. Forvendel’s claim for recovery under his mother’s UM policy in connection with the 2007 accident, also testified at trial. Mr. Robichaux testified that “the claim handler conducted an investigation and submitted a report.to me and unfamiliar with the coverage, I contacted team managers in Louisiana.” He further testified that, being presented with the question of “whether or not a resident relative could select” UM 'coverage, he received “conflicting information” but ultimately decided to extend coverage to Mr. Forvendel under his mother’s policy. Mr. Robichaux also testified that although he now believes that the decision following the 2007 accident was incorrect, he had no knowledge of any attempt by State Farm to inform the Forvendel family of the error.

LOn September 27, 2016, the trial court entered written judgment in favor of Mr. Forvendel, awarding him fifty thousand dollars ($50,000.00) in general and special damages, plus court costs and judicial interest. In its written reasons for judgment, the trial court found that, “under the same circumstances and with the same anti-stacking statute in effect, State Farm previously interpreted the agreement between the parties to cover plaintiff under his mother’s UM policy,” therefore finding that Mr. Forvendel “may collect UM benefits on an automobile insurance policy issued to his mother ... just as State Farm allowed him to do in 2007.” The instant appeal follows.

Discussion

On appeal, State Farm asserts three assignments of error. First, State Farm claims that the trial court erred in finding that its previous payment to Mr. Forven-del with reference to his 2007 accident allows Mr. Forvendel to collect uninsured motorist benefits in reference to his 2013 accident. In its second and third assignments of error, State Farm claims that the trial court erred in allowing Mr. Forvendel to recover under his mother’s UM policy when he owned and operated the vehicle in question at the time of the accident, the vehicle was not the described vehicle listed in his mother’s insurance policy, and “coverage is excluded by the Louisiana UM statute and the policy language.”

In general, a trial court’s finding of fact may not be reversed absent manifest error or unless clearly wrong. Lasyone v. Kan. City S. R.R., 786 So.2d 682, 688 (La. Apr. 3, 2001). A reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s findings; it must instead review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Stobart v. State of Louisiana, Through Department of Transportation and Development, 92-1328 (La. 4/12/93), 617 So.2d 880. The issue to be resolved by a reviewing court is not whether the trier of fact |fiwas right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. The reviewing court must always keep in mind that “if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 882-83, citing Housley v. Cerise, 579 So.2d 973 (La.1991) (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990)). Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Wooley v. Lucksinger, 09-0571 (La. 04/01/11), 61 So.3d 507, 555 (quoting Lasyone, supra, at 687-688).

, La. R.'S. 22:1295(D)(l)(c),- otherwise described as the “anti-stacking statute,” is contained within Louisiana’s statutory provisions on uninsured motorist coverage. In pertinent part, it provides:

If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subsection D(l), then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; provided, however, that with respect to other insurance available, the policy of insurance or endorsement shall provide the following: With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, the following priorities of recovery under uninsured motor: . ist coverage shall apply:
(i) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
(ii) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist- coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.

Louisiana’s public policy strongly favors UM coverage and a liberal construction of the UM statutes. Hoefly v. Government Employees Ins. Co., 418 So.2d 575 (La. 1982). The primary objective of Louisiana’s UM coverage laws is to promote the recovery of damages for the victims of automobile accidents when the tortfeasor is without sufficient insurance coverage. Boullt v. State Farm Mut. Auto. Ins. Co., 99-0942 (La. 10/19/99), 752 So.2d 739, 744-745.

Stacking of UM coverage occurs when the amount available under one policy is inadequate to satisfy the damages alleged or awarded the 'insured and the same insured seeks to combine or stack one coverage on top of'anothér for the same loss covered under multiple policies or under multiple coverage's contained in a single policy. Id. at 742. The issue of stacking arises exclusively once it has been determined that an individual insured has two or more policies or ■ a ■ single policy covering multiple vehicles applying to the same-loss. Id. at 743. Accordingly, in order to analyze the application of the anti-stacking statute, we must first addre'ss whether Mr. Forvendel was an insured -pursuant to his mother’s State Farm Policy.

State Farm raises this issue in then-second and third assignments of error.'In their second and third assignments of error, State Farm claims that the trial- court erred in allowing Mr. Forvendel to recover under his mother’s- UM policy because he was the owner and operator of -the vehicle in question, the vehicle' was not the described vehicle listed in his mother’s- automobile policy, and “coverage is excluded by the Louisiana UM statute and the policy language.”

It is undisputed that Mr. For-vendel was not listed as an insured in his mother’s State Farm automobile insurance policy, and that his vehicle was hot the vehicle described in that policy. However, we find that the trial court was not manifestly erroneous in determining that State Farm waived its right to deny coverage to Mr. Forvendel under his. mother’s policy, and that he was insured-under his mother’s policy. Under Louisiana law, “[w]aiver occurs when there is an existing right, a knowledge of its existence and an actual intention to relinquish it or conduct so inconsistent with the intent to enforce the right as to induce a reasonable belief that |7it has been relinquished,” Tate v. Charles Aguillard Ins. & Real Estate, Inc., 508 So.2d 1371, 1374 (La. 1987). In the-context of insurance cases, waiver, unlike equitable estoppel, “may apply to any provision of an insurance contract, even though this may have the effect of bringing within coverage risks originally- excluded or not covered,” Steptore v. Masco Constr. Co., 643 So.2d 1213, 1216 (La. 1994). Since an insurer is expected to know the contents Of its own policy, a duty of investigation is imposed ■where -an- insurer has “notice - of facts, which would cause a reasonable person to investigate further." Id.

In Steptore, an employee was injured while, working on a cargo vessel and sued the vessel’s owner, Masco Construction Co, (“Masco”) and Masco’s insurer, Ocean Marine Indemnity Co. (“Ocean Marine”), who immediately began representing the owner at his defense. Id. at 1215. After six months of actively defending Masco, Ocean Marine denied further coverage after discovering that Masco' had apparently breached a condition in its navigation warranty of its Ocean Marine policy, limiting Masco’s protection to a specified location. Id, at 1217. Maseo sought coverage from Ocean Marine on the grounds that Ocean Marine had waived its .coverage defense by defending Masco for six months before realizing it had the right to void coverage due to Masco’s breach. Id, Despite Ocean Marine’s notice of facts indicating non-coverage, it continued to assume Masco’s defense without taking precautions to reserve its coverage defense by obtaining a non-waiver agreement. Id. at 1216. In holding that Ocean Marine “possessed facts indicating a possible defense to coverage,” thereby effectively waiving any coverage defense that may have existed under the policy, the Court reasoned that adequate notice was provided to the defendant so as to indicate its right to deny coverage. Id. at 1217.

In this case, State Farm argues that its past behavior with regard to a past claim cannot be used by the trial court in order to determine that a waiver has taken place. However, other appellate courts have found that an insurer’s past behavior may | «waive terms in its contact. For example, in Green v. Brown, 51-152 (La. App. 2 Cir. 02/15/17), 212 So.3d 718, the Second Circuit Court of Appeal held that an insurer’s past behavior with regard to an insured constituted a waiver of the defense of material misrepresentation. In that case, the insurer renewed the insured’s policy multiple times despite knowing about the insured’s material misrepresentation. Id. at 720. At trial, the insurer’s claims adjuster testified that although she knew about the material misrepresentation, and although ordinarily it would be her responsibility to contact the underwriting department to inform them of said misrepresentation, she had not done so in this case because “she was still in training at the time.” Id. On appeal, the Second Circuit found that the insurer’s “course of conduct of accepting premiums and renewing the insurance policy after admitted knowledge of the alleged misrepresentation demonstrates conduct that is entirely inconsistent with an intent to void the policy and coverage.” Id. at 723-24. Similarly, in this case, we find that State Farm’s course of conduct with regard to its relationship with Brandon and Deborah For-vendel is directly relevant to the question of whether or not State Farm’s conduct constituted a waiver.

In its arguments in support of its appeal, State Farm relies heavily on this Court’s decision in Monju v. Continental Casualty Co., 487 So.2d 729 (La.App. 5th Cir. 1986). Specifically, State Farm argues that the trial court’s finding that Mr. For-vendel could recover under his mother’s policy contravenes this Court’s, holding in Monju. However, we find Monju to be inapplicable to the case at bar. Monju addresses the issue of whether the doctrine of equitable estoppel can be used to expand insurance coverage beyond that set forth in an insurance contract. In this case, Mr. Forvendel is claiming that State Farm cannot receive the benefit of Louisiana’s anti-stacking statute under the doctrine of waiver, not equitable 19estoppel. Accordingly, this Court’s holding in Monju is irrelevant to the question of whether State Farm waived its defenses to coverage in this case.

Therefore, we turn to the .question of whether State Farm’s conduct in this ease satisfies the elements of waiver, as set forth in Tate, supra. It is undisputed that Mr. Forvendel was listed as a “household member” rather than an “insured” in Deborah Forvendel’s policy, both at. the time of the 2007 accident and at the time of the accident that, is the subject of this litigation. Accordingly, State Farm would, under normal circumstances, -have a right to deny coverage based on this distinction. See, e.g., Howell v. Balboa Ins. Co., 564 So.2d 298, 301-02 (La. 1990). Furthermore, as the issuer of the insurance policy at issue in both accidents,. State Farm clearly had notice of the provisions in its own policy, satisfying the second element required to prove waiver under Tate.

Finally, with regard to the intentional relinquishment of State Farm’s known right to deny coverage in this case, the letter provided by State Farm to Mr. For-vendel’s attorney with reference to Deborah Forvendel’s policy specifically stated that “given the language in the policy .. .your client does qualify as an insured for Uninsured Motorist coverage” (emphasis added). Accordingly, we find that State Farm’s course of conduct waived its defense with regard to Mr. Forvendel’s status as an “insured” under his mother’s policy. Therefore, the trial court did not err in finding that Mr. Forvendel was insured • under his mother’s policy. Consequently, we find that State Farm’s second and third assignments of error are without merit.

Next, having found that Mr. Forvendel is an insured under both his mother’s and his own UM policies, we turn to State Farm’s first assignment of error, which | inaddresses whether the trial court manifestly erred in allowing Mr. Forvendel to stack UM coverage. We find no manifest error in the trial court’s determination that State Farm waived its defense under the anti-stacking statute.

As a preliminary matter, we note that an insurance company may extend insurance coverage beyond that required by Louisiana law, including the anti-stacking statute. In Livas v. State Farm Mut. Auto. Ins. Co., 99-1169 (La. App. 1 Cir. 07/17/00), 797 So.2d 694, the First Circuit Court of Appeal held that, “despite the clarity of the law,” an insurance company had expanded coverage beyond the anti-stacking statute based on language contained in its policy. This holding supports the conclusion that the limits on recovery in the anti-stacking statute, like other possible defenses to coverage, are subject to modification by the insurer.

Accordingly, we turn to the question of whether State Farm’s conduct waived its defense to coverage pursuant to the anti-stacking statute. With regard to the first element of waiver, there is no dispute that ordinarily, State Farm would have “an existing right” to deny coverage to Mr. For-vendel based on Louisiana’s anti-stacking statute. See Nall v. State Farm Mut. Auto. Ins. Co., 406 So.2d 216, 219 (La. 1981).

Next, we consider whether the trial court erred in finding that State Farm had notice of Louisiana’s anti-stacking statute. We find no reason to disturb the trial court’s finding with'regard to this issue. The trial court heard testimony from multiple State Farm employees concerning State Farm’s internal processes in reference to Mr. Forvendel’s 2007 accident. That testimony reflects that, following the 2007 accident, State Farm knew there was a question concerning Mr. Forvendel’s ability to recover under both his own policy and Deborah Forvendel’s policy. In Steptore, supra, the Louisiana Supreme Court found the notice requirement of waiver to be met where the pleadings filed in the case clearly demonstrated the basic facts needed by the insurer to deny coverage. Similarly, in this case, it is uncontested Inthat State Farm was aware of Mr. Forvendel’s intent to recover under both policies following his accident in 2007. Accordingly, we find that the trial court did not err in finding that State Farm had sufficient notice in this ease to knowingly waive this defense.

Finally, State Farm’s conduct with regard to Mr. Forvendel’s 2007 accident clearly meets the third element of waiver set forth in Tate. State Farm not only allowed Mr. Forvendel to stack UM coverage under essentially identical circumstances, it overtly confirmed his ability to do so in writing. Furthermore, despite its clear knowledge of its error regarding payment of the claim for the 2007 accident, State Farm continued to accept premiums from both Deborah Forvendel and Brandon Forvendel and admittedly never made any effort to communicate its error to them until after the 2013 accident, when it attempted to deny coverage under Deborah Forvendel’s policy. We find no error in the trial court’s conclusion that State Farm behaved in a manner so inconsistent with the intent to enforce the right as to induce a reasonable belief that it has been relinquished.

In his response to State Farm’s appellate brief, Mr. Forvendel argues that he is entitled to an award in excess of fifty thousand dollars ($50,000.00) pursuant to La. R.S. 22:1973. Mr! Forvendel did not advance this argument either in his petition or at trial, and sighed a stipulation prior to trial confirming that his damages in this case did not exceéd fifty thousand dollars ($50,000.00). Louisiana courts have repeatedly held that La. R.S. 22:1973 is penal in nature, and its provisions 'are therefore to be strictly construed. Hernandez v. Continental Cas. Ins. Co., 615 So.2d 484 (La. App. 4 Cir. 1993), writ denied 620 So.2d 850 (La. 1993). In order to assert a claim for damages under La. R.S. 55:1973, a plaintiff must allege that an insurer committed one of the enumerated acts set out in the statute. Spear v. Thong Ngoc Tran, 96-1490 (La. App. 4 Cir. 09/18/96), 682 So.2d 267, 269. In this case, Mr. 1! ¡.Forvendel never alleged a breach of La. R.S. 22:1973, either in his petition or at trial. Accordingly, we find this request to be without merit.

For the foregoing reasons, we find that the trial court did not manifestly err in its judgment allowing Mr. Forvendel to recover under his mother’s UM policy. Accordingly, we affirm the judgment of the trial court in this matter.

AFFIRMED

DISSENTS WITH REASONS MEJ

JOHNSON, J.,

DISSENTS WITH REASONS

I iSI, respectfully, dissent from the majority opinion in this matter for the following reasons.

First; although the majority relies upon Livas v. State Farm Mut. Auto. Ins. Co., 99-169 (La. App. 1 Cir. 7/17/00); 797 So.2d 694, by interpreting it holds that an insurance company may extend insurance coverage beyond that required by Louisiana law, specifically the anti-stacking statute, I view that case from a different standpoint.

In Livas, the plaintiffs, Larry and Linda Livas, brought the suit individually and on behalf of their minor daughter, Quanita Livas, against their second UM insurance carrier, National General Insurance Company (“National General”). This issue on summary judgment in that matter was whether the plaintiffs could stack additional coverage under the National General policy as compensation for Quanita’s injuries sustained during an accident" in which her mother was driving the vehicle. Quani-ta was an insured under the policy as a family member of the named insureds (her parents), but she was not the owner of the vehicle she was occupying when injured.

In its ruling,-the appellate court found that National General’s policy did not exclude UM coverage to Quanita and reversed the summary judgment that dismissed the plaintiffs’ UM claim. In my opinion, the finding aligned with the version of anti-stacking law that existed at the time which provided an exception for an injured party occupying a vehicle not owned by him/her. Quanita did not own the vehicle shé was occupying at the time of the accident; thus, the exception would have applied to a UM claim on her behalf. For that reason, I would not interpret Livas to support the conclusion that the limits on recovery required by the anti-stacking statute are subject to modification by thfe insurer.

| ^Furthermore, and more importantly, I find that State Farm could not waive its right to deny coverage to Mr. Forvendel when the .coverage relied upon circumvents the provisions of a state statute, namely La. R.S. 22:1295(l)(c) and (e). “While it is true that persons may waive personal rights that the law has established, they cannot by their contracts violate prohibitory law or derogate from law enacted for the protection of the public interest.” Goulas v. B & B Oilfield Sevs., 10-934 (La. App. 3 Cir. 8/10/11); 69 So.3d 750, 760, citing Henderson v. Kentwood Spring Water, Inc., 583 So.2d 1227 (La. App. 1st Cir. 1991). In Bach Inv. Co. v. Philip, 98-667 (La. App. 5 Cir. 12/16/98); 722 So.2d 1222, 1223, this Court held,

La. [C.C.] art. 1996 provides that “an obligation cannot exist without a lawful cause.” La. C.C. art. 1968 provides that “the cause of an obligation is unlawful when the enforcement of the obligation would produce a result prohibited'by law or against public policy.” Thus, if a con'tract has as its cause or its object the violation or circumvention of a state statute, it is an 'absolute nullity in contravention of public order.”

Louisiana law prohibits the stacking of UM policies for coverage for instances like the one in this case. .As properly cited in the majority opinion, “[sjtacking of UM coverage occurs when the amount available under. policy is inadequate to satisfy the damages alleged or awarded the. insured and the same insured seeks to combine or stack one coverage on top of another for the same loss covered under multiple policies or under multiple coverages contained in a single policy.” Boult v. State Farm Mut. Auto. Ins. Co., 99-0942 (La. 10/19/99); 752 So.2d 739, 742. “The issue stacking arises exclusively once it has been determined that an individual insured has two or more policies or a single policy covering multiple vehicles applying to the same loss.” Id. at 743.

Here, even the majority opinion recognizes that State Farm would have the right to deny coverage to Mr. Forvendel under his mother’s UM policy based on Louisiana’s anti-stacking statute. Because of the anti-stacking statute, State Farm |1scould not legally, extend the mother’s UM policy coverage to Mr, Forvendel, under these circumstances, because it would be in derogation of the law. In my opinion, this means that State Farm could not waive, the use of the anti-stacking statute as a defense for the 2013 accident- because State Farm’s actions, e.g., extending coverage to Mr. Forvendel under his mother’s UM policy in 2007, were not based upon a lawful cause and were in contravention of the. statute.

Therefore, ,1 would find that the trial court legally erred in finding that Mr. Forvendel could recover under both his own and his mother’s UM insurance policies and reverse the judgment.

      . Mr. Angel testified that Deborah Forvendel’s ex-husband and his vehicle had been removed from the policy in October 2007, and that her address had been updated. None of the changes made to Deborah Forvendel’s policy in 2007 involved her son, Brandon Forvendel.

      . The terms "waiver” and “estoppel” are often used interchangeably, as both are equitable principles that may result in modification of coverage provided by a policy based on the conduct of the parties involved. However, waiver and estoppel are significantly distinct concepts that must be discussed independently, See e.g. Orleans Parish Sch. Bd. v. Lexington Ins. Co., 12-CA-1686 (La. App. 4 Cir. 06/05/13), 118 So.3d 1203, 1219.

      . Questions of law, such as the proper interpretation of a statute, are reviewed under the de novo standard of reyiew. City of Gretna v. Morice, 14-301 (La. App. 5 Cir. 12/30/14); 167 So.3d 823, 827.


author: GRAVOIS, J.

text:
    Miriam BLANDINO and Fausto Mercedes, Individually and on Behalf of Their Minor Children, Jared Mercedes and Yeriannis Mercedes v. Kendra PIERRE, John Doe, Geico Indemnity Company, USAgencies Casualty Insurance Company, Inc.-Liability and USAgencies Casualty Insurance Company, Inc.-UM
    NO. 16-CA-150
    Court of Appeal of Louisiana, Fifth Circuit.
    November 15, 2017
    COUNSEL FOR PLAINTIFF/APPELLANT, MIRIAM BLANDO AND FAUS-TO MERCEDES, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN, JARED MERCEDES AND YERIANNIS MERCEDES, Ivan A, Ori-huela
    COUNSEL FOR ■ INTERVENOR/AP-PELLEE, LOUISIANA INSURANCE GUARANTY. ASSOCIATION, Benjamin M. Chapman, Baton Rouge, Stephanie B. Laborde, J. Jacob Chapman

      Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson
   GRAVOIS, J.

_JjPlaintiffs/appellants, Miriam Blandino and Fausto Mercedes, individually and on behalf of their minor children, Jared Mercedes and Yeriannis Mercedes, appeal the trial court’s June 18, 2015 judgment that granted defendant/appellee,' USAgencies Casualty Insurance Company, now known as Affirmative Casualty Insurance Company’s (“USAgencies”), motion for summary judgment, dismissing all of plaintiffs’ claims against USAgencies with prejudice. For the following reasons, we affirm this trial court judgment.

FACTS AND PROCEDURAL BACKGROUND

Plaintiffs, Miriam Blandino and Fausto Mercedes, individually and on behalf of their minor children, Jared Mercedes and Yeriannis Mercedes, filed suit on August 12,2012 for damages allegedly sustained in an automobile accident that occurred on August 12, 2011. Plaintiffs alleged in their petition for damages that Ms. Blandino was operating a vehicle, owned by Fausto Mercedes and occupied by their children, Jared and Yeriannis Mercedes, which .was stopped at a stop sign in Jefferson Parish, when a 1998 Chevrolet Blazer driven by Kendra Pierre or “John Doe” struck their vehicle, causing personal injuries and property damages. They named as defendants Ms. Pierre and “John Doe,” GEICO Indemnity Company and USAgencies, as automobile liability insurers for either Ms. Pierre or “John Doe,” and USAgencies, as plaintiffs’ uninsured/underinsured motorist carrier.

On April 9, 2015, USAgencies filed a motion for summary judgment seeking dismissal of plaintiffs’ claims against it on the basis there was no valid automobile liability insurance policy issued by USAgencies in effect on the date of the subject accident. Specifically, USAgencies maintained that although Ms. Pierre attempted to purchase an automobile liability insurance policy from USAgencies on February 9, 2011, she failed to submit adequate funds to USAgencies to obtain coverage, and thus, the policy never became effective.

lain support of its motion for summary judgment, USAgencies submitted several exhibits, including the policy’s declaration page, policy transaction information, non-sufficient funds (“NSF”) notification from Capital One, N.A., correspondence sent to Ms. Pierre, and affidavits of Margaret Shoemaker and Jose Sergio Vidal, authorized representatives of USAgencies. These exhibits showed that Ms. Pierre attempted to purchase an automobile liability insurance policy from USAgencies on February 9, 2011, with an effective policy period from February 9, 2011 through August 11, 2011; however, the initial payment made by Ms. Pierre was returned by Capital One, N.A., to USAgencies for insufficient funds on February 16, 2011. Correspondence dated February 17, 2011 sent by certified mail by USAgencies to Ms. Pierre at the address shown in the policy advised her that her policy “never became effective” and she had “no coverage” due to her failure to make the initial premium payment. The correspondence also advised Ms. Pierre that she could reinstate the policy, which would apply retroactively to the original premium due date, by submitting adequate payment, including a fifteen dollar fee for the NSF check, within ten days of February 17,2011. USAgencies did not receive any subsequent payment from Ms. Pierre. Plaintiffs filed an opposition to the motion for summary judgment, which did not include any supporting documents or attachments. After a heáring, the trial court granted the motion for summary judgment. Plaintiffs’ appeal of that judgment follows.

ASSIGNMENTS OF ERROR AND ARGUMENT

On appeal, plaintiffs contend that the trial court erred in granting USAgencies motion for summary judgment because USAgencies failed to satisfy the requirements for proper cancellation of an automobile insurance policy for nonpayment of premium. Specifically, plaintiffs urge that the notice provided to Ms. Pierre did not comply with La. R.S. 22:1266 because it did not advise that the policy was “can-celled.” Plaintiffs also argue that the notice was ineffective | .¡because it advised Ms. Pierre that she would need to pay a fifteen dollar fee for her NSF check in addition to paying the initial premium amount in order to reinstate her insurance policy. Plaintiffs contend that by requiring more than the premium amount, USAgencies did not comply with the law.for the proper cancellation of a policy for non-payment of premium. Plaintiffs further argue that the notice was not properly delivered and that ■there was inadequate evidence of delivery of the notice of cancellation to the insured.

ANALYSIS

The summary judgment procedure is a procedural device used to secure the just, speedy, and inexpensive determination of actions by avoiding a full-scale trial where there is no genuine factual dispute. La. C.C.P. art. 966(A)(2); Pouncy v. Winn-Dixie La., Inc., 15-189 (La. App. 5 Cir. 10/28/15), 178 So.3d 603, 605. Summary judgment should be granted if the motion and supporting documents, including the pleadings, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations and admissions, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A).

The initial burden is on the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense. The non-moving party must then produce factual support to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(D). If the non-moving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. Pouncy, supra.

Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria that governs the trial court’s ^determination of whether a summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Bernard v. Ellis, 11-2377 (La. 7/2/12), 111 So.3d 995, 1002.

Louisiana jurisprudence provides that where an automobile liability insurer defends on the ground that the policy was cancelled prior to the date giving rise to a claim under the policy, the insurer bears the burden of establishing facts which will relieve it of liability. Accardo v. Clarendon Nat’l Ins. Co., 99-393 (La. App. 5 Cir. 1/4/00), 751 So.2d 975, 977, writ denied, 00-0369 (La. 4/7/00), 759 So.2d 761; Direct Gen. Ins. Co. v. Mongrue, 04-248 (La. App. 5 Cir. 8/31/04), 882 So.2d 620, 623. The insurer must show facts which constitute positive and unambiguous proof of an understanding of the cancellation of the policy. Id. La. R.S. 22:1266 sets forth the notice requirements that must be followed by an insurance company in order to effect a cancellation of an insurance policy. La. R.S. 22:1266 mandates. strict compliance, with its statutory provisions for a valid notice of cancellation of an insurance policy. Direct Gen. Ins. Co., supra. Notice is required to make the insured aware that his policy is being terminated and to afford, him time to obtain.other insurance, protection, Id.

La. R.S. 22:1266 governs the cancellation of insurance policies and provides,, in pertinent part: , .

' (B)(1) A notice of cancellation of a policy shall be effective only if it is based on one or more of the following reasons:
(a) Nonpayment ofpremmm.
(D)(1) No notice of cancellation of a policy to which Subsection B or C of this Section applies shall be effective unless mailed by certified mail of delivered by the insurer to the named insured at least thirty-days prior to the effective date of cancellation; however, when cancellation is for nonpayment of premium at least ten days notice of cancellation accompanied by . the reason shall be given, In the event of nonpayment of |(¡premiums for.a binder, a ten-day notice of cancellation shall be required before the cancellation shall be effective. Notice of cancellation for nonpayment of premiums shall not be required to be sent by certified mail, ...
(D)(3)(a)(i) Payment of an initial, renewal, or .installment insurance premium, by the insured to an insurer -... with a check or other negotiable instrument which is returned to the.payee ■ by the institution upon which- it is drawn for insufficient funds available . in the account, for lack of credit, for the -reason the account is closed, for stopped payment, or for any other ■ reason shall be deemed grounds for the insurer to cancel the binder or policy from the date the premium payment -was due for the initial or renewal.term, whichever is applicable,
* ⅝ *
(D)(3)(b)(ii) The insurer shall immediately, and in no case later than ten days after the producer or premium finance company has notified the insurer, notify the named insured, by certified ■ mail or delivering to the named insured a written notice that the policy is canceled from the date the premium, payment was due. The insurer - shall advise the named insured that the policy shall be reinstated effective from the date the prerhium- payment was due for the term of the policy-only if the named inswred or his- legal ■representative presents to the insurer a cashier’s' check or money order for the-full amount of the returned check or other negotiable instrument within ten days of the date that the notice-of cancellation was'mailed,
(D)(3)(c) Upon expiration of the ten-day period, ... : ■
(ii)Cancellation of the policy shall remain effective, when the insured or his legal representative has failed to "redeem the dishonored check or other negotiable instrument' before expiration of the ten-day period.
(F)Proof of mailing of notice of cancellation ... to the-named insured at the address shown in the policy, shall be sufficient proof of notice.

(Emphasis added.)

In the present case, our review of the record shows that USAgencies was advised that Ms. Pierre's initial premium payment was returned by her bank for insufficient funds. After it was notified of this information, USAgencies sent | ficorrespondence to Ms. Pierre stating that because her initial payment for her premium was returned by her bank for insufficient funds, her policy “never became effective” and that she had “no coverage.” The notice, dated February 17, 2011, was mailed to Ms. Pierre by certified mail to the address shown in her policy. The notice further explained that Ms. Pierre could reinstate the policy from 'the date the premium was due if she presented payment for the full amount of the returned check, plus a fifteen dollar NSF fee within ten days of the date of the notice; however, USAgencies did not receive any subsequent payment from Ms. Pierre. Ms. Shoemaker attested in her affidavit that “[t]here was no automobile liability insurance coverage provided by USAgencies to [Ms.] Pierre ... [or] John Doe on the date of’ the subject accident, August 12, 2011. Further, Mr. Vidal attested in his affidavit that “[i]nsurance coverage between USA-gencies and [Ms.] Pierre never incepted due to the insufficient funds.”

In opposition to the motion for summary judgment, plaintiffs argued, without submitting any evidence, that USAgencies failed to satisfy the requirements for proper cancellation of an automobile insurance policy for nonpayment of premium.

Upon de novo review, we find that USA-gencies has met its burden of proving that there- is no genuine issue as to material fact and that it is entitled to judgment as á matter of law. Specifically, USAgencies has shown that Ms. Pierre was not covered under a USAgencies policy on the date of the subject accident. The evidence submitted with the motion for summary judgment clearly establishes that USAgencies properly and timely sent a legally sufficient notice of cancellation to its insured, Ms. Pierre, after it was notified that an attempted payment of policy premium by Ms. Pierre was not honored by the financial institution in question because the account on which said payment was drawn was closed. Plaintiffs’ argument that the notice needed specific verbiage advising that the policy would be 17“cancelled” from the date the premium payment was due is unpersuasive. The applicable statute does not require any specific language, and we find that the correspondence advising Ms. Pierre that her policy “never became effective” and that she had “no coverage” constitutes sufficient, positive, and unambiguous proof of an understanding that the policy never came into effect and was properly and timely cancelled.

Also, plaintiffs’ contention that the fifteen dollar fee rendered the notice ineffective is likewise misplaced. Plaintiffs cite no authority in support of their argument. Further, La. R.S. 9:2782 specifically permits a payee to charge a service fee for checks returned due to insufficient funds.

Moreover, plaintiffs’ argument that La. R.S. 22:1266 requires proof of actual delivery of the notice of cancellation in this case is without merit. La. R.S. 22:1266(D)(1) specifically provides that “[n]otice of cancellation for nonpayment of premiums shall not be required to be sent by certified mail.” Although not required, USA-gencies has shown that the notice of cancellation in this case was sent to Ms. Pierre by cértifíed mail. Further, La. R.S. 22:1266(F) specifically provides that. “[p]roof of mailing of notice of cancellation ... to the named insured at the address shown in the policy, shall be sufficient proof of notice.” Here, USAgencies has shown that it mailed the notice of cancellation to Ms. Pierre, the named insured, at the address shown in the policy.

Because USAgencies has shown by un-contradicted evidence that:

(1) the payment tendered by Ms. Pierre for the initial premium on the subject policy was returned due to insufficient funds;
(2) USAgencies properly and timely sent a legally sufficient notice of cancellation to Ms. Pierre after it was notified that the attempted payment of policy premium by Ms. Pierre was not honored by the financial institution in question because the account on which said payment was drawn was closed; and
(3) no further payment on the subject policy was made to USAgencies;

I «we find that in accordance with La. R.S. 22:1266(D)(3)(c)(ii), Ms. Pierre’s policy never came into effect, and accordingly, coverage under the USAgencies policy in question did not exist at the time of the subject accident.

CONCLUSION

For the foregoing reasons, the trial court’s June 18, 2015 summary judgment in favor of USAgencies Casualty Insurance Company, now known as Affirmative Casualty Insurance Company, is affirmed. Costs of the appeal are assessed to appellants.

AFFIRMED

      . Moreover, we note that the policy in question purportedly had a coverage period from February 9, 2011 at 6:44 p.m. through August 11, 2011 at 12:01 a.m. The accident in question allegedly occurred on August 12, 2011, apparently outside of the policy period; this, however, was not an issue before us in this appeal.


author: RANDOLPH, PRESIDING JUSTICE,

text:
    Demario WALKER a/k/a Demario D. Walker a/k/a Demario Dontez Walker v. STATE of Mississippi
    NO. 2015-CT-00912-SCT
    Supreme Court of Mississippi.
    09/21/2017
    Rehearing Denied December 7, 2017
    DE,MARIO WALKER (PRO SE), ATTORNEY FOR APPELLANT. .
    OFFICE OF THE ATTORNEY GENERAL- BY: BILLY L. GORE, ATTORNEY FOR APPELLEE
   ON WRIT OF CERTIORARI

RANDOLPH, PRESIDING JUSTICE,

FOR THE COURT:

¶ 1. After Demario Walker’s probation was revoked and he was' sentenced to serve the full five years of his suspended sentence, Walker filed a motion for post-conviction relief (PCR). The Jefferson Davis County Circuit Court dismissed Walker’s petition, and Walker appealed. The Court of Appeals affirmed in part and reversed and remanded in. part the judgment of the circuit court. We granted cer-tiorari review and hold that the Court of Appeals did not err in finding that (1) the circuit court had jurisdiction and authority to revoke Walker’s probation, (2) Walker was afforded due process at his revocation hearing, and (3) revocation of Walker’s probation was proper. However, the Court of Appeals did err in finding that the circuit court’s' sentencing Walker to serve the full, five-year term of his suspended sentence was improper. Therefore, we affirm in part and reverse and render in part the Court "of Appeals judgment, and we reinstate and' affirm the circuit court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶2, After pleading guilty in Jefferson Davis County Circuit Court to the crime of false pretense under Mississippi Code Section 97-19-55, Walker was sentenced to serve five years’ incarceration, with imposition suspended pending successful completion of a five-year probationary period. See Miss. Code Ann. § 97-19-55 (Supp. 2016), Walker also was ordered to- pay $1,018.57 in restitution and fees, ■

¶ 3. Approximately one year later, Walker was discharged from parole for an unrelated conviction. He then was placed on parole for his false-pretense conviction. After Walker failed to report monthly for four months to his probation office, failed to pay required fees, and failed to pay restitution to his victim, Walker’s probation officer Richard Johnson filed, an affidavit, resulting.in the circuit court issuing a warrant for Walker’s arrest.

¶ 4.. Subsequently, Walker’s, probation was revoked. At his revocation hearing, Walker stated that Johnson had told him ■he was on probation. Walker was sentenced to serve the full five years’ incarceration of his suspended sentence. In response to the revocation of his probation, Walker moved for PCR, which motion was dismissed by the circuit court. Walker appealed the circuit court’s dismissal, and the Court of Appeals affirmed in part and reversed and remanded in part for further consideration consistent with its opinion. Both the State of Mississippi and Walker filed petitions for certiorari, both of which were granted by this Court.

ANALYSIS

¶ 5, In his petition for certiorari review, Walker raises two issues. First, he argues that no evidence was presented that he violated the terms and conditions of his probation in a material respect. Second, Walker argues that he was not on probation in Jefferson Davis County at the time his alleged violations occurred. In its petition, the State argues that the Court of Appeals erred as a matter of law and fact in holding that (1) Walker could only be sentenced to not more than ninety days and (2) this was Walker’s “first technical violation.” ■ =

I. Standard of Review

■ ¶ 6. Our standard of review of the trial court’s • denial of a PCR- motion is clear. We will not reverse the factual findings of the trial court unless they are clearly erroneous. Brown v. State, 731 So.2d 595, 598 (Miss. 1999). All questions of law are reviewed de novo. Id.

II. Violation of Parole

¶7. Walker argues that the trial court improperly found that he violated the terms of his parole because no evidence was presented 'at his revocation hearing to substantiate the allegations al-. leged in Johnson’s affidavit against him.

■ ¶ 8, As the Court of Appeals held, Johnson swore an affidavit that Walker had not properly conducted himself [and] had violated the conditions of his probation in a material respect by;

Condition (c) .Report to MDOC as directed by it; Offender Walker failed to report for the month of July 2014, August 2014, September 2014, and October 2014; Offenders] location is unknown; Offender has absconded probation.
Condition (i) Pay required fee during each month of probation to MDOC; Offender Walker currently owes $412.00.
Condition (l) Defendant shall pay restitution; Offender currently owes $968.57.

Walker was provided a copy of these violations and the evidence presented against him in a waiver of his right to a preliminary revocation hearing, which he signed. At his hearing, Walker did not dispute any allegations, called no witnesses, and did not cross-examine Johnson. We find this issue to be without merit.

III. Timing of Probation

¶ 9. Walker also argues that he was not on probation during the time of these alleged violations. However, Walker admitted that Johnson informed him he was on probation and that both agreed his probation started in July 2014. Both the trial court and Court of Appeals determined that Walker was, in fact, on probation at the time the violations occurred. This issue is without merit.

IY. Mississippi Code Section § 47-7-37—(5)(a)

¶ 10.' At Walker’s revocation hearing, the trial court revoked his probation and' sentenced him to the entirety of his original five-year sentence. The Court of Appeals reversed and remanded, finding that, because this was Walker’s .first technical violation of his probation, he should have been sentenced to not more than ninety days. Subsection (5)(a) of Mississippi Code Section 47-7-37 reads in pertinent part: . •

... If the court revokes probation for a technical violation, the court shall impose a period of imprisonment to be served in either a technical violation center or a restitution center not to exceed ninety (90) days for the first technical violation and not to exceed one hundred twenty (120) days for the second technical viQlation. For the third technical violation, the court may impose a period of imprisonment to be served in either a technical violation center or a restitution center, for up to one hundred eighty (180) days or the court may impose the remainder of the suspended portion of the ..sentence. For the fourth and. any subsequent technical violation, the court may impose up to the remainder of the suspended portion of the sentence. The period of imprisonment in a technical violation center imposed under this section shall not be reduced in any manner.

Miss. Code Ann. § 47-7-37 (Rev. 2014).

. ¶ 11. In its petition for certiorari, the State argues that Walker violated three conditions of his parole, as reflected by Johnson’s affidavit. The State submitted that each individual violation was a separate technical violation as contemplated by Section 47-7-2(q). Section 47-7-2(q) defines “technical violation” as “an act or omission by the probationer that violates a condition or conditions of probation placed on the probationer by the court or the probation officer.” Miss. Code Ann. § 47-7-2 (Rev. 2014).

¶ 12. .After filing its .petition, the State informéd this Court of the recent decision by the Court of Appeals, in which it acknowledged that “the conclusion in Walker is contrary to the plain language of the statute and should be overruled.” Cobbert v. State, 223 So.3d 822, 825 (Miss. Ct. App. 2017). In Cobbert, the Court of Appeals distinguished between a “technical violation” and a “revocation order,” which could be made up of numerous technical violations. Id. at 825.

At Cobbert’s first revocation hearing, the State established three technical violations: that Cobbert failed to report to his probation officer, that he failed to pay required fees, and that he'failed to pay court costs. At Cobbert’s second revocation hearing, the State established that Cobbert had failed to report once again, his fourth technical violation. Cob-bert thus committed four separate ácts or omissions that violated a condition or conditions of his PRS. Therefore, under the plain language of the statute, the circuit court was within its authority to impose the remainder of the suspended portion of Cobbert’s sentence.

Id.

¶ 13. Today’s case presents similar facts. While this is Walker’s first revocation hearing, he committed three technical violations of his probation. Pursuant to the relevant code section, the trial court properly sentenced Walker to serve the remaining five years of his original sentence. We adopt the Court of Appeals holding in Cobbert that a proper interpretation of Section 47-7-37(5)(a) requires a finding of each separate violation of parole to be a separate and distinct technical violation. Walker committed three separate acts or omissions, each of which violated a condition or conditions of his probation.

CONCLUSION

¶ 14. Although the Court of Appeals improperly reversed the trial court’s imposition of the full remainder of Walker’s sentence, it recognized its error in Cobbert. Therefore, we affirm in part and reverse in part the judgment of the Court of Appeals, and we reinstate and affirm the judgment of the circuit court.

¶ 15. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. THE JUDGMENT OF THE CIRCUIT COURT OF JEFFERSON DAVIS COUNTY IS REINSTATED AND AFFIRMED.

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


author: BARNES, J.,

text:
    Winfred FORKNER a/k/a Winfred Folkner a/k/a “Wimp,” Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CP-01142-COA
    Court of Appeals of Mississippi.
    08/16/2016

      WINFRED FORKNER (PRO SE), ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL;-BY: LAURA HOGAN TEDDER, ATTORNEY FOR APPELLEE
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   BARNES, J.,

FOR THE COURT:

1Í1. Winfred Forkner and his accomplice, April Harrison, were indicted on October 26, 2000, on two counts of burglary. The indictment charged that the two defendants traveled to hunting camps in Wilkinson County and stole air-conditioning units from “the camp of Eric Trevillion” and “the camp of the Hobb’s Hunting Club.” The indictment was later amended to charge Forkner as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015). After a jury trial in Wilkinson County Circuit Court on February 22 and 26, 2001, Forkner was found guilty of Count I; the jury could not return a verdict oh Count II. He was sentenced to life without parole.

¶2. On March 8, 2001, Forkner filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the circuit court denied on March 12, 2001. He filed a motion to reopen the time for appeal on April 20, 2001, and subsequently filed a notice of appeal on May 2, 2001. This Court dismissed his appeal on December 17, 2002, for lack of jurisdiction, as the circuit court had not ruled on Forkner’s motion to reopen the time to file the appeal. See Forkner v. State, 852 So.2d 604, 606 (¶ 8) (Miss.Ct.App.2002). He filed a second appeal, and our Court affirmed his conviction and sentence on November 30, 2004. See Forkner v. State, 902 So.2d 615, 626 (¶ 37) (Miss.Ct.App.2004).

¶3. Forkner has since filed three applications for permission to file-a motion for post-conviction relief (PCR) in trial court. The first motion was denied on July 19, 2005; the second was dismissed on August 16, 2006. On December 15, 2010, the Mississippi .Supreme Court dismissed Fork-ner’s third application for leave to proceed as a successive writ,' It further warned Forkner that “future frivolous filings may subject Forkner to sanctions!.]”

¶4. On January 9, 2014, Forkner filed á motion under Mississippi Rule of Civil Procedure 60(b)(4) and (6) with the circuit court, seeking relief from the judgment. On February 25, 2015, the circuit court denied Forkner’s motion. The circuit court reasoned:

Mississippi [l]aw states, though a Rule 60(b) motion should be liberally construed, it is not to be used as a substitute for appeal. In addition, because Forkner’s motion in substance represents a petition for Post-Conviction Relief, it dually fails because it falls outside the three (3) year statutory window.

Forkner appealed the circuit court’s' order on March 11, 2015.

DISCUSSION

¶5. This Court, affirmed ' Fork-ner’s conviction and sentence on, direct appeal. Forkner, 902 So.2d 615. Mississippi Code Annotated section 99-39-7 (Rev. 2015) of the Uniform Post-Conviction Collateral Relief Act (UPCCRA) provides, in pertinent part:

Where the conviction and sentence have been affirmed on appeal or the appeal has been dismissed, the motion under this article shall not be filed in the trial court until the motion shall have first been presented to a quorum of the Justices' of the Supreme Court of Mississippi, convened for said purpose either in termtime or in vacation, and an order granted allowing the filing of such motion in the trial court.

As this Court held in Epps v. State, 837 So.2d 243, 245 (¶ 6) (Miss.Ct.App.2003):

[A]s to post-conviction-relief motions brought after an unsuccessful direct appeal of a criminal conviction, the failure of the movant to obtain the prior permission of the supreme court to file the motion as set out in section 99-39-27 [(leave to proceed in the trial court)] deprives the circuit court—and, necessarily, this Court—of authority to reach the’merits of the motion.

(Citations omitted). Furthermore, the supreme court’s denial of an application for leave to seek post-conviction ’relief in the circuit court is a final judgment and bars successive applications for relief pursuant to the UPCCRA, Miss. Code Ann, § 99-39-27(9) (Rev. 2015). As already noted, the supreme court has denied or dismissed Forkner’s applications for post-conviction relief.

¶6. Forkner’s Rule 60(b) motion is an apparent attempt to circumvent this procedural bar against PCR motions. However, his motion clearly attacks the merits of his underlying judgment. His contention is that the judgment is void because the actual victim who signed the complaint, against him, Mark Trevillion, did not testify at trial; his brother, Eric, testified as the owner of the property. “[A]n appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review.” Beeks v. State, 130 So.3d 163, 165 (¶ 9) (Miss.Ct.App.2014) (quoting Bruce v. Bruce, 587 So.2d 898, 903-04 (Miss.1991)). “Rule 60(b) is for extraordinary circumstances, for matters collateral to the merits[,] ... [and] should not be used to relitigate cases.” Beeks, 130 So.3d at 165 (¶ 9) (citations omitted). Rule 60(b) is also not “a substitute for a timely appeal.” Beeks, 130 So.3d at 165 (¶ 9).

¶7. Forkner’s motion is not a proper Rule 60(b) motion, and the supreme court denied all requests for permission to file a POR motion. Accordingly, the circuit court lacked jurisdiction to consider Forkner’s motion, and we lack jurisdiction over his appeal. Forkner’s appeal is dismissed.

¶8. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WILKINSON COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

      . Harrison entered a plea of guilty to the two charges on February 22, 2001, and as part of the plea agreement, she was sentenced to five years, which were suspended, and she was placed on five years of probation. She also testified at Forkner's trial.


author: GREENLEE, J,

text:
    Demario WALKER a/k/a Demario D. Walker a/k/a Demario Dontez Walker, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CP-00912-COA
    Court of Appeals of Mississippi.
    10/18/2016
    Rehearing Denied April 11, 2017

      DEMARIO WALKER (PRO SE), FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE, JASON L. DAVIS, FOR APPELLEE

      BEFORE LEE, C.J., WILSON AND GREENLEE, JJ.
   GREENLEE, J,

FOR THE COURT:

¶ 1. This is an appeal from Jefferson Davis County Circuit Court of the dismissal of DeMario Walker’s motidn for post-conviction relief (PCR) filed after his probation was revoked and he was sentenced to serve the full five years’ incarceration of his suspended sentence for his first technical violation. We affirm in part and reverse and remand in part for further consideration consistent with the provisions of Mississippi Code Annotated section 47-7-37 (Supp. 2016) and this opinion.

FACTS AND PROCEEDINGS BELOW

¶2. On July 23, 2013, Walker pleaded guilty in Jefferson Davis County Circuit Court to the crime of false pretense under Mississippi Code Annotated section 97-19-55 (Supp. 2016). Walker was sentenced to serve five years’'incarceration, with imposition ■ suspended pending successful completion of a five-year probationary period. Walker was additionally ordered to pay $1,018.57 in restitution and fees.

¶ 3. On July 13, 2014, Walker was discharged from parole for an unrelated conviction and placed on probation for his July 23, 2013 conviction. On October 14, 2014, Richard Johnson, Walker’s probation officer, filed an affidavit stating that Walker violated multiple conditions of his probation. Specifically, Johnson stated in his affidavit that Walker failed to report monthly to Johnson as directed from July 2014 through October 2014, that his whereabouts were unknown, that Walker failed to pay required fees, and that Walker failed to pay restitution to Walker’s victim. On October 16, 2014, the circuit court issued a warrant for Walker’s arrest. Walker was later arrested in Lamar County. On March 25, 2015, Walker signed three separate waivers'of his right to a preliminary probation-revocation hearing, his right to notice and a waiting period prior to his preliminary probation hearing, and his right to notice and a waiting period prior to his probation-revocation hearing.

¶ 4. On March 27, 20Í5, Walker’s probation was revoked. At Walker’s revocation hearing, Walker stated that Johnson told him he was on probation and that Walker and Johnson had discussed Walker’s probation starting in July 2014. Walker was sentenced to serve the full five years’ incarceration of his suspended sentence. In response to the revocation of his probation; Walker moved for PCR. On May 23, 2015, .the circuit court dismissed Walker’s rhotion for PCR. Walker now appéals the circuit court’s dismissal of his motion for PCR to this Court.

DISCUSSION

¶ 5. The standard of review for a denial of a motion for PCR is abuse of discretion, which this Court will not reverse unless the denial was clearly erroneous. Jackson v. State, 135 So.3d 216, 218 (¶ 10) (Miss. Ct. App. 2014).

¶ 6. On appeal, Walker argues pro se that the court lacked jurisdiction and authority to revoke Walker’s probation, that Walker was denied due process at his revocation hearing, that the court’s revocation of Walker’s probation was improper, and that' the Court’s sentencing Walker to serve' the full term of his suspended five years’ incarceration was improper.

I. Whether the court had jurisdiction and authority to revoke probation.

¶ 7. Walker asserts that the circuit court did not have jurisdiction or authority to revoke his probation because he had not begun his probation yet and was still serving sentences for other convictions issued prior to the one involved in this case.

¶ 8, Mississippi Code Annotated section 47-7-37(1) states that “[t]he period of probation shall be fixed by the court, and may at any time be extended or terminated by the court, or judge in vacation.” Further, it states that. the court “may continue or revoke all or any part of the probation or the suspension of sentence.” Miss. Code Ann. § 47-7-37(5)(a).

, ¶ 9.-The Jefferson Davis County Circuit Court was the court that initially sentenced Walker to probation. Thus, that court retained jurisdiction to revoke Walker’s probation if he violated the conditions of his probation. Walker cites no law. supporting his assertion that he was not on probation at the time of the alleged violation,. Failure to cite any authority may be treated as a procedural bar, and the Court is under no duty to consider the assignment of error. Williams v. State, 708 So.2d 1358, 1361 (¶ 12) (Miss. 1998). This Court cannot find support for Walker’s assertion that he was not on probation because he had not yet begun probation and was still serving sentences for other convictions. Further, Walker admitted at his hearing that his probation started in July 2014. Therefore, we find .this issue is procedurally barred and without merit.

' II. Whether Walker was afforded due process at his revocation hearing.

A. Minimum Requirements

¶ 10. In presenting his argument, Walker addrésses each of the six prongs necessary to meet the minimum requirements for due process at a probation revocation found in Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Walker asserts that he did not have written notice of the claimed violations of probation, that the evidence against him was not disclosed to him, that he .was not given an opportunity to be heard in person and present witnesses and documentary evidence, that he was not allowed the opportunity to cross-examine Johnson, that he was not provided a written statement of the evidence relied on and the reasons for revoking «probation, and that he was not afforded a neutral and detached hearing body or officer.

¶ 11. Prior to his revocation hearing, Walker signed a waiver of his right to a preliminary revocation hearing. The alleged probation violations and evidence against him were listed on the waiver. At Walker’s revocation hearing, the judge informed Walker of the charged probation violations against him,- and the judge asked Walker if he “dispute[d] any of the allegations today or is there a misunderstanding or do you acknowledge and admit that you have violated [your probation]?” Walker only disputed whether he had started probation. Walker went on to admit that he had talked with Johnson, that Johnson told Walker he was on probation, and that the two had established that probation would start in July. Johnson was present at the hearing and available for cross-examination, but Walker chose not to cross-examine Johnson. Walker made no request for witnesses. At the hearing, Walker did reference, two discharge certificates issued by the Mississippi Department of Corrections (MDOC), and the court acknowledged having the documentation in its file. Both certificates state that Walker was discharged on July 13, 2014. The circuit court issued an order in which it listed the evidence it had relied upon and gave the reasons for revoking Walker’s probation.

¶ 12. Walker further asserts he was not afforded a neutral and detached hearing because.the circuit-court judge took on the role of prosecutor during Walker’s revocation hearing by calling witnesses and putting on the State’s case. Rule 1.15 of the Uniform Rules of Circuit and County Court Practice allows any party to move for the recusal of a judge “if it appears that the judge’s impartiality might be questioned by a,reasonable person knowing all the circumstances.” Rule 1.15 also requires a motion for recusal to be filed “within 30 days following notification to the parties of the names of the judge assigned to the case.” Id. “The failure to seek recusal generally is considered implied consent to have the judge go forward in presiding over the case.” Rice v. State, 134 So.3d 292, 299 (¶ 17) (Miss. 2014) (citing Tubwell v. Grant, 760 So.2d 687, 689 (¶ 8) (Miss. 2000)). The record reflects that Walker never requested the circuit judge recuse himself from the revocation hearing. Because Walker never raised the issue of recusal before the circuit court, he consented to have the judge preside over the revocation hearing. Thus, any argument that the circuit-court judge should have been recused is waived.

¶13. Notwithstanding the. procedural bar, the propriety of the judge’s sitting is decided by the judge and subject to review only in a case of manifest abuse of discretion. Hubbard v. State, 919 So.2d 1022, 1026 (¶ 12) (Miss. Ct. App. 2005) (quoting Collins v. Joshi, 611 So.2d 898, 901 (Miss. 1992)). At the revocation hearing, the circuit-court judge recited the allegations to Walker and asked if Walker “dispute[d] any of the allegations today or is there a misunderstanding or do you acknowledge and admit that you have violated [your probation]?” After Walker made his case, the judge asked if Johnson “[had] anything to add[.]” The circuit-court judge did not prosecute for the State when he recited the allegations, asked Walker if he disputed or admitted them or if there was some niistake, and asked Johnson if he had anything to add. Therefore, we find that these claims are without merit.

B. Presence of Counsel at a Probation-Revocation Hearing

¶ 14. Walker asserts that he was denied counsel at his revocation .hearing. Walker further asserts that he required counsel because his history of mental illness prevented him- from being able to effectively defend himself against the charges that he violated the conditions of his probation. However, probationers do not have a per se right to counsel, at probation-revocation hearings. Riely v. State, 562 So.2d 1206, 1209 (Miss. 1990) (citing Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 26, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (citing Gagnon, 411 U.S. at 778, 93 S.Ct. 1756)). When the issues relevant to the hearing are complex or difficult to develop, the court should provide counsel. Id, “The court is not required to inquire into a person’s competency absent reasonable grounds to believe that he is not competent.” Staten v. State, 967 So.2d 678, 681 (¶ 10) (Miss. Ct. App. 2007) (citing Thorn v. State, 815 So.2d 455, 457 (¶ 5) (Miss. Ct. App. 2002) (citing Edwards v. State, 800 So.2d 454, 466 (¶¶ 33-34) (Miss. 2001))).

¶ 15. Walker’s probation officer alleged that Walker did not report to him for four consecutive months, and that Walker did not pay the required fees or restitution. The documents cited by Walker at his revocation hearing were before the court and confirm that he had been discharged by MDOC on July 13, 2014. Further, Walker admitted that Johnson had told Walker he was on probation, and'Walker admitted that he and Johnson established that probation started in July 2014. The issues relevant to the case were not difficult or complex to develop.

¶ 16. Walker claims that he has a long history of mental illness and that that mental illness should have been considered when evaluating the complexity of the issues; As evidence of Walker’s mental illness, he claims that he was hospitalized throughout his entire thirteen-year period of incarceration with the MDOC. Upon review of the record, no mental illness was ever raised before the circuit court, let alone “any reasonable grounds to believe that [Walker] is not competent.” Staten, 967 So.2d at 681 (¶ 10). Even more, there is no indication anywhere in the entire fecord of Walker’s alleged mental illness or hospitalization, other than his own brief. Regardless, Walker made no mention of his mental illness at his revocation hearing and, as noted above, 'the court is not required to inquire into a person’s competency absent reasonable grounds to believe he is incompetent. Id. We find these claims-are without merit.

III. Whether revocation of Walker’s probation was proper.

¶ 17. Walker asserts that revocation of his ' probation was not proper because he was hot on probation, because the court failed to take into account his education and work experience, because the court’s actions were arbitrary and capricious, and because he substantially complied with the tenns of his probation. For probation revocation to be proper, the State is-only required to prove that the •probationer “more likely than not” violated the terms of his probation. Braziel v. State, 186 So.3d 424, 427 (¶ 14) (Miss. Ct. App. 2016) (citing Fairley v. State, 138 So.3d 280, 282 (¶ 4) (Miss. Ct. App. 2014)).

¶ 18. Revocation of Walker’s probation was proper based upon Walker’s conduct. Walker did not report to his probation officer and did not pay the requisite fees and restitution.' At his hearing he did not dispute any of these facts, only whether or not he was on probation. Walker subsequently admitted at his hearing that Johnson told him he was on probation, and that he and Johnson established that his probation started in July 2014. By Walker’s own admission, he did, in fact; violate the conditions of his probation. Walker did reference two discharge certificates issued by the MDOC, and the court acknowledged having the documentation in its file. Both certificates stated that Walker was discharged on July 13,2014. On appeal, Walker references an MDOC prisoner time sheet as proof that he was on parole and not probation. The time sheet Walker references states that he was released on probation on July 13, 2014. Based on these facts, we find that Walker “more likely than not” violated his probation. Thus, revocation of Walker’s probation was proper. Braziel, 186 So.3d at 427 (¶ 14). Thus, we find this claim is without merit.

IY. Whether the coürt’s sentencing Walker to serve the full five-year term of his suspended sentence was proper.

¶ 19. Walker asserts that being sentenced to serve the full five years’ incarceration of his suspended sentence was excessive. Mississippi Code Annotated section 47-7-37(5)(a) states that “[i]f the court revokes probation for a technical violation, the court shall impose a period of imprisonment to be served in either a technical violation center or a restitution center not to exceed ninety days for the first technical violation.” (Emphasis added). “ ‘Technical violation’ means an act or omission by the probationer that violates a condition or conditions of probation placed on the probationer by the court or the probation officer.” Miss. Code Ann. § 47—7—2(q) (Rev. 2015). Based on this Court’s review of the record, this is Walker’s first technical violation of his probation. Thus, Walker should have been sentenced to not more than ninety days in a technical-violation center or restitution center, not to the full term of his suspended sentence of five years’ incarceration. Therefore, we reverse and remand to the circuit court on this issue for resentencing consistent with the provisions of section 47-7-B7.

CONCLUSION

¶ 20. We affirm the circuit court’s judgment revoking Walker’s probation. We reverse and remand for resentencing consistent with Mississippi Code Annotated section 47-7-37.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF JEFFERSON DAVIS COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JEFFERSON DAVIS COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, JAMES AND WILSON, JJ., CONCUR.

      . The Gagnon Court held the requirements were as follows:
      (a) Written notice of thé claimed violations of probation, (b) disclosure to the probationer of the evidence against him,.(c) the opportunity to be heard in person and to present witnesses and documentary evidence, (d) the right to confront and cross examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation), (e) a neutral and detached -hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers, and (f) a. written statement by the factfin-der[(s)] as to the evidence relied on and reasons for revoking probation.

        Gagnon, 411 U.S. at 786, 93 S.Ct. 1756 (citing Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)).

      . This statute was amended by the Mississippi Legislature during the 2014 regular session, and those amendments were made effective July 1, 2014. See 2014 Miss. Laws ch. 457, § 58 (H.B. 585).

      . This statute was also amended by the Mississippi Legislature during the 2014 regular session and those amendments were made effective July 1, 2014. See 2014 Miss. Laws ch. 457, § 47 (H.B. 585).


author: BARNES, J„

text:
    Laveal MCGHEE a/k/a Leveal McGee a/k/a Levell Magee a/k/a Leaveal McGee a/k/a Lavell Magee, Appellant v. STATE of Mississippi, Appellee
    NO. 2014-CP-00130-COA
    Court of Appeals of Mississippi.
    11/08/2016
    Rehearing Denied May 2, 2017
    Certiorari Denied November 16, 2017.

      LAVEAL MCGHEE (PRO SE), ATTORNEY F.OR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL-BY: KAYLYN H, MCCLINTON, ATTORNEY FOR APPELLEE
    .BEFORE LEE, C.J., BARNES AND. ISHEE, JJ.
   BARNES, J„

FOR THE COURT:

■ ¶ 1. Laveal McGhee, appearing pro se, appeals the Yazoo County Circuit Court’s denial of his motion for post-conviction relief (PCR): Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In June 1980, McGhee was indicted by the Yazoo County Circuit Court, for the murder of David Nichols, while hr the commission of a robbery. In two moré separate indictments, McGhee was also charged with the rape and the kidnaping of Nichols’s wife during the same incident. In August 1980, McGhee moved for a change of venue from Yazoo County to Hinds County for each charge. In November 1980, following an agreed order, McGhee’s cases were moved to Hinds County. In December 1980, McGhee pleaded guilty in the Circuit Court of Yazoo County, sitting in Hinds County, to all three charges. The circuit court sentenced him to a life sentence for the murder charge, thirty years for the kidnaping charge, and thirty-nine years for the rape charge, with all sentences to run consecutively.

¶ 3. In' 1997, McGhee filed a PCR motion in the Circuit Court of Yazoo County for the murder charge, alleging ineffective assistance of counsel. The circuit court found the motion time-barred under the three-year statute of limitations and dismissed it.

¶ 4. On March 20, 2014, the PCR motion at issue here for the murder charge was filed in the Yazoo County Circuit Court. In this motion, McGhee claimed that he was actually indicted by a Hinds County grand jury, and the indictment was merely filed in the Yazoo County Circuit Court. He contended that instead of Hinds County exercising jurisdiction over him, it was the Yazoo County Circuit Court sitting in Hinds County that erroneously exercised jurisdiction immediately after the Hinds County indictment. He claimed that Yazoo County could only exercise jurisdiction if a Yazoo County grand jury indicted him. Accordingly, he concluded that the Yazoo County Circuit Court had no jurisdiction to accept his guilty plea and sentence him. On March 28, 2014, the circuit court denied his PCR motion, finding McGhee was indicted by a Yazoo County grand jury on May 7,1980.

STANDARD OF REVIEW

¶ 5. This Court will not disturb the trial court’s denial of a PCR motion unless the trial court’s -factual findings are clearly erroneous. Questions of law are reviewed de novo. Lambert v. State, 941 So.2d 804, 807 (¶ 14) (Miss. 2006) (citation omitted).

ANALYSIS

¶ 6. On appeal, McGhee argues that his incarceration violates the Thirteenth Amendment of the United States Constitution regarding the prohibition on involuntary servitude because he was not “duly convicted,” as the sentencing court did not have jurisdiction. McGhee alleges that his indictment of June 3, 1980, for the murder charge was a “manufactured” First District of Hinds County indictment, which was improperly altered to look like a Ya-zoo County indictment.

¶ 7. McGhee’s PCR motion is both successive and'time-barred. Under» the Uniform Post-Conviction Collateral Relief Act (UPCCRA), any order denying -or dismissing a PCR motion bars a second or successive motion. Miss. Code Ann. § 99-39-23(6) (Rev. 2015). Additionally, a PCR motion challenging a guilty plea must be filed within three years of the entry óf the judgment of conviction. Miss. Code Ann. § 99-39-5(2) (Rev. 2015). This PCR motion is McGhee’s second relating to his murder charge, and' was' filed nearly thirty-four years after he pleaded guilty.

¶ 8. McGhee cites Rowland v. State, 42 So.3d 503 (Miss. 2010), as authority to except his motion from the procedural bars, since he raises a claim of constitutional proportion. Rowland held that “errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA.” Id. at 506 (¶9). However, “the mere assertion of a constitutional right, violation” does not trigger procedural-bar exceptions. Evans v. State, 115 So.3d 879, 881 (¶ 3) (Miss. Ct. App. 2013) (quoting Wicker v. State, 16 So.3d 706, 708 (¶ 5) (Miss. Ct. App. 2009)). The claim of a fundamental-constitutional-rights violation must at least appear to have some basis ‘of truth. Id. (quoting Stovall v. State, 873 So.2d 1056, 1058 (¶ 7) (Miss. Ct. App. 2004)). Here, there is none.

¶ 9. McGhee fails to show his indictment was “manufactured” or improperly altered, or that he was indicted by a Hinds County grand jury. It is well established that “the circuit court obtains subject matter jurisdiction over a criminal offense when the defendant is served with an indictment issued by the grand jury. When an indictment is challenged as defective, the jurisdiction of the circuit court to hear the matter and impose a sentence is called into question.” Caston v. State, 949 So.2d 852, 854 (¶ 4) (Miss. Ct. App. 2007) (citing Miss. Const. art. 3, § 27; Miss. Code Ann. § 99-7-1 (Rev. 2006)).

¶ 10. McGhee’s June 3, 1980 indictment for murder is included in a supplemental record before this Court. The indictment appears to have the “First Judicial District [of] Hinds County” typographically crossed out and replaced with “Yazoo County.” We cannot find these markings are a falsification of McGhee’s indictment that invalidates it or his guilty plea.

¶ 11. According to the docket in the supplemental record, this indictment was filed in the Yazoo County Circuit Court. An order was entered the next day amending the indictment to correct the first name of the victim. On November 18, 1980, an agreed order changing the venue from Ya-zoo County to Hinds County was entered. On December 3, 1980, an order was entered stating McGhee changed his plea to guilty in the Circuit Court of Yazoo County, with the words “sitting in Hinds County, Mississippi upon change of venue” hand-written in the heading. These documents do not establish that the Yazoo County Circuit Court lacked jurisdiction to accept McGhee’s guilty plea or to sentence him. Accordingly, the circuit court’s order denying McGhee’s PCR motion is affirmed.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YAZOO COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, JAMES, WILSON AND GREENLEE, JJ„ CONCUR.

      . Each charge had a different cause number.

      , The motion showed it was signed- by McGhee nearly one year earlier on July 23, 2013.

      . The indictment would have been filed before the change of venue to Hinds County.