author: CARLTON, J.,

text:
    Elizabeth GAINEY, Appellant v. Donnie EDINGTON, Appellee.
    No. 2008-CA-00237-COA.
    Court of Appeals of Mississippi.
    Nov. 24, 2009.

      Ben Logan, Tupelo, attorney for appellant.
    J. Mark Shelton, attorney for appellee.
    Before KING, C.J., IRVING and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. Elizabeth Gainey appeals the judgment of the Pontotoc County Chancery Court, which dismissed her action to modify the child custody arrangement between Elizabeth and her ex-husband, Donnie Ed-ington. Finding that the chancellor failed to consider the totality of the circumstances in determining whether a material change occurred for the purposes of modifying child custody, we reverse and remand for a new trial with directions for the chancellor to reconsider the issue of modification of child custody. Powell v. Powell, 976 So.2d 358, 361(¶ 11) (Miss.Ct.App.2008); see also Riley v. Doerner, 677 So.2d 740, 744 (Miss.1996).

FACTS

¶ 2. Elizabeth and Donnie divorced in April 2001, with Donnie receiving full custody of the couple’s two girls, Tara, age five, and Mia, age four. The divorce decree did not address Elizabeth’s visitation rights. Over the next three years, while in Donnie’s custody, the girls suffered significant health problems resulting from an apparent overall continuing neglect of their health and welfare. In these three years subsequent to the divorce, Elizabeth made few visits to see her children. She attributed her lack of significant visitation to her ex-husband’s refusal to allow her visitation in the face of her numerous requests and financial limitations. Meanwhile, during this time period, Donnie brought home two new stepmothers for the girls, enjoyed indulging his interests, while neglecting the health problems and welfare of the girls, resulting in significant health consequences.

¶ 3. In 2004, Donnie married Christie, with whom he amassed a collection of sex toys. Donnie and Christie also engaged in at least one evening of spouse-swapping ■with another married couple in their own home, while Tara and Mia stayed with their grandparents down the road. Christie gave birth in May 2004 to a child that Donnie and Christie believed to be theirs, but which ultimately proved to be the child of another man. Donnie then had to explain to Tara and Mia that the child that they thought was their sibling was not. Then, Donnie and Christie separated in late 2004 and divorced in early 2005.

¶ 4. Donnie next married Suzanne in the summer of 2005. Suzanne worked as a sex toy consultant who hosted “Passion Parties” in her own home and the homes of others. For some time, she kept her inventory of sex devices at the family home in boxes. Donnie and Suzanne maintained MySpace and other internet accounts on which they posted pictures, videos, and comments. Some of the material on these pages include a picture of Suzanne in a French maid costume, a movie trailer featuring a naked woman sold into slavery and kept in a cage, a picture of Charles Manson, and a video of Ronald McDonald being shot in the face.

¶ 5. During Donnie’s marriage to Suzanne, Tara and Mia have experienced significant health problems, reflecting an overall neglect for their health and welfare. Mia has a gait derangement for which she has been to a hospital, but the condition remains uncorrected. Instead of receiving physical therapy by a licensed therapist or other licensed health professional, Mia and Tara participate in a karate class taught by a relative as a sort of physical therapy for Mia, according to Donnie. The dental hygiene of both girls is so poor that they cannot receive orthodontic treatment; the state of degradation of their dental hygiene reflects the results of long-term neglect. Both girls suffered staph infections subsequent to such infection being contracted by Suzanne. Mia has also had an ear infection that caused her to fail a hearing examination at school and eventually necessitated tubes.

¶ 6. Donnie has also allowed Frank Flo-rez, now convicted of possession of a controlled substance with intent to distribute and possession of cocaine with intent to distribute, to supervise Mia and Tara.

¶ 7. Elizabeth filed her Petition for the Modification of Custody, Temporary Establishment of Reasonable Visitation, and in the Alternative, Permanent Establishment of Liberal Visitation on September 1, 2004. The chancellor entered a temporary agreed order November 8, 2004. Elizabeth filed a second petition for contempt and modification on July 8, 2005. The chancellor appointed Honorable Sidra P. Winter as guardian ad litem on September 6, 2006.

¶ 8. After a hearing held on June 20, 2007, and September 4-5, 2007, the chancery court granted Donnie’s motion to dismiss on the basis of no showing of a material change in circumstances adverse to the children’s best interests. The court entered an opinion and judgment to that effect December 10, 2007. On appeal, Elizabeth argues that the chancellor erred in (1) finding no material change in the circumstances adverse to the children’s best interests, (2) excluding introduction of Donnie’s MySpace account into evidence, and (3) not requiring a report from the guardian ad litem.

DISCUSSION

I. Material Change in Circumstances

¶ 9. This court has a limited scope of review in challenges to a chancellor’s decision to deny a custody modification. Creel v. Comacchione, 831 So.2d 1179, 1183(¶14) (Miss.Ct.App.2002). “We can reverse only when a chancellor’s decision is either manifestly wrong or clearly erroneous, or when the chancellor has applied an erroneous legal standard.” Id.

¶ 10. In order for a chancellor to modify a child custody decree, the noncustodial parent must prove the following: “(1) that a material change of circumstances has occurred in the custodial home since the most recent custody decree, (2) that the change adversely affects the child, and (3) that modification is in the best interest of the child.” Powell, 976 So.2d at 361 (¶ 11) (citing Giannaris v. Giannaris, 960 So.2d 462, 467-68(¶10) (Miss.2007)). This Court has held that “[w]hile numerous factors may go into the initial consideration of a custody award, see, e.g., Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), only parental behavior that poses a clear danger to the child’s mental or emotional health can justify a custody change.” Lambert v. Lambert, 872 So.2d 679, 684(¶ 22) (Miss.Ct.App.2003) (citing Morrow v. Morrow, 591 So.2d 829, 833 (Miss.1991)).

¶ 11. Elizabeth argues that the chancellor failed to view the totality of circumstances in determining whether there had been a material change in circumstances. A change in circumstances “is [a change] in the overall living conditions in which the child is found[,]” and “[t]he ‘totality of the circumstances’ must be considered.” Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984) (citing Kavanaugh v. Carraway, 435 So.2d 697, 700 (Miss.1983)).

¶ 12. Elizabeth produced proof reflecting that Donnie displayed continuing neglect for the welfare and health of the two girls, Tara and Mia, in support of her contention that a material change in circumstances had occurred in Donnie’s home that is adverse to the children’s best interests. Elizabeth also provided evidence that she was denied any meaningful visitation between the time of the entry of her divorce decree in April 2001 when she was finally able to hire counsel to pursue her legal remedies in August 2004. She also claims that Donnie continually thwarted her visitation in the face of an order granting summer and holiday visitation. Elizabeth argues that at least one incident of “spousal swapping” occurred in Donnie’s home between mid-2003 and September 2004, involving Donnie and his second wife Christie. Elizabeth further contends that such parental behavior affected the children’s welfare and home stability.

¶ 13. As further evidence of home instability, Elizabeth points to the pregnancy and birth of a child by Christie that was not Donnie’s and the cause of Donnie and Christie’s subsequent separation and divorce. Elizabeth also asserts Donnie’s poor judgment as a parent is reflected by his admission that Christie was not a good person to have around the children, and it is also reflected by Christie’s maintenance of a supply of sexual aids and toys in the home. Elizabeth notes that Donnie married his third wife, Suzanne, within the same year of the divorce from Christie. Elizabeth points out the negative moral influence of Suzanne’s employment as a sex toy consultant who hosts “Passion Parties” in the family home, as well as Suzanne’s extensive time spent on the Internet while at home and her suggestive pictures taken by Donnie that are posted on various web sites.

¶ 14. In regard to the children’s education, health, and home stability, Elizabeth points to Mia’s diminishing grades and academic progress, and Mia’s gait problem that continues to be inadequately treated. She also asserts that Mia suffers from recurrent and ongoing ear problems that were only treated when brought to light by Elizabeth. She further argues that Tara’s and Mia’s staph infections were contracted subsequent to Suzanne’s staph infection, and she cites the appalling condition of both girls’ teeth. Regarding Donnie’s parental judgment, Elizabeth asserts that he allowed supervision of the girls by a neighbor ultimately imprisoned for selling drugs, and Donnie and Suzanne maintained publicly-aecessible MySpace accounts which contained the following: photos of Charles Manson, a short video of Ronald McDonald being shot in the face, a picture of Suzanne in a French maid costume, and a movie trailer featuring a naked woman sold into slavery and kept in a cage.

¶ 15. Based upon the foregoing evidence and arguments, Elizabeth contends that the chancellor failed to evaluate the prospective or reasonably foreseeable adverse effect on the children as a result of Donnie’s continuing lack of concern for their welfare. This Court has indicated that under certain circumstances, “adverse effects can be shown where it is reasonably foreseeable that a child will suffer adverse effects because a child’s present custodial environment is clearly detrimental to his or her well-being.” Gilliland v. Gilliland, 984 So.2d 364, 368(¶ 12) (Miss.Ct.App.2008); Johnson v. Gray, 859 So.2d 1006, 1014(¶ 39) (Miss.2003) (Reasonably foreseeable adverse effects were due to the mother’s involvement in car accidents, arrests, and fits of rage, all due to being under the influence of alcohol); Riley, 677 So.2d at 744 (Evidence established that the custodial parent’s home was the site of illegal drug use); Saveli v. Morrison, 929 So.2d 414, 417(¶ 8) (Miss.Ct.App.2006) (Reasonably foreseeable adverse effects based on evidence that the mother’s new husband screamed at the child on an almost daily basis, used profanity toward her, and admitted that he wanted to hit her repeatedly with paintballs); Glissen v. Glissen, 910 So.2d 603, 612(¶29) (Miss.Ct.App.2005) (Reasonably foreseeable adverse effects were based on mother’s live-in boyfriend’s abuse of alcohol and drugs, violence, criminal record, as well as the mother’s untruthfulness, questionable judgment, and lack of morals).

¶ 16. After considering all of the evidence presented by Elizabeth, the chancellor stated that the poor dental hygiene, staph infection, recurrent ear infections, and similar health issues were not the type of substantial changes which would meet the test for modification. Regarding the allegations of Donnie’s sexual activities, the chancellor noted that “it is not the function of the chancery court to police behavior conducted in the privacy of the bedroom unless that behavior can be shown to adversely impact children. There has been no proof of such a nexus or a connection in this case.” However, evidence of such changes, when considered in combination with one another, shows that a pattern of overall disregard for the welfare of the children occurred. Thus, we find that viewing this evidence under the totality of the circumstances can establish a material change sufficient to warrant a custody modification.

¶ 17. In Riley, 677 So.2d at 742, the child’s father filed a motion to modify child custody, alleging that the mother, who had physical custody of the child, was unfit and negligent in caring for their child. The supreme court held that since the mother’s home was the site of behavior adverse to the child’s welfare, and the father was able to provide a good home for the child, “it was within [the chancellor’s] discretion” to transfer custody from the mother to the father, “despite the fact that he could not discern any negative effect on [the child] caused by [the mother’s] home environment.” Id. at 744. The court noted:

that where a child living in a custodial environment clearly adverse to the child’s best interest, somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment. Evidence that the home of the custodial parent is the site of dangerous and illegal behavior, such as drug use, may be sufficient to justify a modification of custody, even without a specific finding that such environment has adversely affected the child’s welfare.

Id.

¶ 18. In the present case, the evidence in the record reflects a continuing pattern of overall neglect for the health and welfare of the girls. The concerns, taken individually, may not be of such gravity as to warrant substantial change. However, when viewed together, the impact upon the children may indeed be of such gravity as to constitute substantial change under a totality of the circumstances. The combined issues include: the children’s poor grades, untreated gait problem, initially untreated and recurrent ear problems resulting in hearing loss, both girls’ staph infections contracted subsequent Suzanne’s staph infection, and the deplorable condition of the girls’ teeth. All of these reflect a continuing pattern for an overall neglect for the health and welfare of the children. This pattern of neglect reflects poorly upon Donnie’s parenting skills and parental judgment. Further, such an apparent disregard of Tara and Mia’s health care and academics creates an unsafe environment for the children. As the supreme court has expressed: “A child’s resilience and ability to cope with difficult circumstances should not serve to shackle the child to an unhealthy home, especially when a healthier one beckons.” Riley, 677 So.2d at 744. Thus, we remand this issue to the chancellor to analyze the facts in light of the considerations set forth in Riley.

II. Exclusion of the MySpace Account into Evidence

¶ 19. Elizabeth argues that the chancellor erred by excluding the introduction of evidence of Donnie’s MySpace Internet account, which she claims was rife with sexually explicit, highly suggestive, and violent content ranging from bondage and human slavery to sadomasochism. Donnie initially asserts that Elizabeth did not properly preserve her ability to complain of this error on appeal. In support of this position, Donnie asserts that Elizabeth made no offer of proof with respect to preserving for our appellate review the precise material about which she complains was improperly excluded. Donnie also argues that the precise nature of the inference sought to be admitted by Elizabeth was unclear from the context elicited.

¶ 20. We need not address his assignment of error since we are remanding this case to the chancellor to reconsider whether a material change in circumstances has occurred after viewing the totality of the circumstances in light of Riley.

¶ 21. However, the record reflects no abuse of discretion by the chancellor regarding the exclusion of this evidence. Harrison v. McMillan, 828 So.2d 756, 765(¶ 27) (Miss.2002) (citation omitted). Employing this standard, this Court “would ordinarily examine the trial court’s ruling for abuse of discretion and then inquire into the [ejffect, if any, this ruling had on a substantial right of the party.” Perry v. State, 904 So.2d 1122, 1124(¶ 7) (Miss.Ct.App.2004). While excluding the printout of the actual MySpace page, the chancellor allowed Elizabeth to cross-examine Donnie regarding the contents of the MySpace page. Hence, Elizabeth suffered no violation of a substantial right.

III. Failure to Require Testimony from the Guardian Ad Litem

¶ 22. Elizabeth argues that in basing his finding of no material change in circumstances primarily on the lack of proof of adverse impact on the children, the chancellor thereby erred in ruling that no report from the guardian ad litem was needed on these issues. Mississippi Code Annotated section 93-5-23 (Rev.2006) requires appointment of a guardian ad litem in custody actions where a charge of abuse or neglect arises, as in the present case. In such cases, the guardian ad litem has a responsibility to competently perform her duties and provide recommendations or a written report to the court. Miss.Code Ann. § 43-21-121 (Rev.2004).

¶ 23. The guardian ad litem had interviewed the children and the parties’ respective families, and during the trial, she waited to deliver her recommendation after the conclusion of all the testimony. Elizabeth asserts that the guardian ad li-tem had identified the negative impact that the custody arrangement had on Tara and Mia. Elizabeth, therefore, contends that the chancellor erred in ruling that no report was needed from the guardian ad litem.

¶ 24. However, we point out that a guardian ad litem has a duty to “zealously represent the child’s best interest.” In re D.K.L., 652 So.2d 184, 188 (Miss.1995). When appointed by the court to investigate, a guardian ad litem “is obligated to investigate the allegations before the court, process the information found, report all material information to the court, and (if requested) make a recommendation.” S.G. v. D.C., 13 So.3d 269, 282(¶ 57) (Miss.2009). The guardian ad litem in the instant case, like the guardian ad litem in S.G., failed to provide the court with an objective record of the evidence or make a recommendation as to whether or not a material change in circumstances has occurred. Notwithstanding the guardian ad litem’s responsibility to perform her duties competently, the chancellor remains the ultimate fact finder and is not required to follow the recommendations of the guardian ad litem. Hensarling v. Hensar-ling, 824 So.2d 583, 587(¶ 10) (Miss.2002). The chancellor must also clearly define the role of the guardian ad litem and the purpose of appointment, i.e., to serve as advis- or to the court or counsel for the children. S.G., 13 So.3d at 281(¶48). In this case, although allegations arose as to medical neglect, in addition to other allegations, the guardian ad litem’s role appeared to be ill-defined.

¶ 25. In the present case, the guardian ad litem interviewed the children and families prior to the trial, but she did not prepare a written report or recommendation. The guardian ad litem also attended the trial. After each witness was questioned, the chancellor asked the guardian ad litem if she had any questions for the witnesses. Each time, the guardian ad litem declined to ask any questions. Before the court made its ruling, the chancellor asked the guardian ad litem if she wanted to add anything. The guardian ad litem replied that she would “leave it to the court’s discretion as to whether or not there has been a material change in circumstances.” If the guardian ad litem’s intended role was to represent the child zealously, such was not accomplished by a lack of recommendation to the chancellor. The proper function of the guardian ad litem is to investigate, make recommendations to a court, or enter a report. S.N.C. v. J.R.D., Jr., 755 So.2d 1077, 1082(¶ 16) (Miss.2000); In re R.D., 658 So.2d 1378, 1383 (Miss.1995).

¶ 26. In In re D.K.L., 652 So.2d at 191, the supreme court reversed and remanded the case after observing that the guardian ad litem had failed to interview the family or make recommendations to the court; instead, the guardian ad litem deferred to the parties’ briefs. The court held that the guardian ad litem failed to fully represent the child’s best interest. Id. at 191.

¶ 27. We recognize that no requirement exists for the chancellor to defer to the findings of the guardian ad litem. S.N.C., 755 So.2d at 1082(¶ 17). However, a chancellor “shall include at least a summary review of the qualifications and recommendations of the guardian ad litem in the court’s findings of fact and conclusions of law.” Id. at (¶ 18). In the event that “a chancellor’s ruling is contrary to the recommendation of a statutorily required guardian ad litem, the reasons for not adopting the guardian ad li-tem’s recommendation shall be stated by the court in the findings of fact and conclusions of law.” Id. In this case, based on the foregoing, the guardian ad litem failed to comply with her statutory duties and failed to provide recommendations or a written report to the court. Hence, there were no recommendations for the chancellor to summarize, reject, or consider.

¶ 28. We reverse the chancellor’s judgment and remand this case for the chancellor to reconsider, based upon the totality of the circumstances, whether a material change in circumstances adverse to the children has occurred when evaluating whether a modification of custody is in the children’s best interests.

¶ 29. THE JUDGMENT OF THE PONTOTOC COUNTY CHANCERY COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    WOODKREST CUSTOM HOMES INC., Nationwide Custom Construction, LLC and Robert Kress, Sr., Appellants, v. James COOPER and Sandra Cooper, Appellees.
    No. 2008-CA-00846-COA.
    Court of Appeals of Mississippi.
    Dec. 1, 2009.

      Joe Morgan Wilson, Senatobia, attorney for appellants.
    Thomas A. Wicker, Tupelo, Joshua S. Wise, attorneys for appellees.
    Before KING, C.J., GRIFFIS and MAXWELL, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. James and Sandra Cooper filed a complaint against Woodkrest Custom Homes, Inc.; Nationwide Custom Construction, LLC; and Robert Kress, Sr., Individually (collectively, the “Defendants”). The Coopers asserted claims for breach of contract, negligent and fraudulent misrepresentation, misappropriation, and conversion of money. The Defendants failed to respond, and the Coopers moved for a default judgment. The circuit court granted the default judgment and awarded the Coopers $119,387.14 in compensatory damages, $268,161.42 in punitive damages, and $5,000 in attorney’s fees.

¶ 2. The Defendants sought to set aside the default judgment. The court denied the motion. From the order denying the motion to set aside the default judgment, the Defendants now appeal. The Defendants argue that because the service of process was improper, the default judgment should have been set aside, and that the Defendants were entitled to a hearing on damages.

FACTS

¶ 3. The Coopers entered into a contract with Woodkrest for materials for the construction of the Copper’s home. Nationwide was to serve as the contractor and builder for the construction. Woodkrest, a foreign corporation, and Nationwide, a foreign limited liability company, were not qualified to do business in Mississippi but were doing business in Mississippi.

¶ 4. On March 6, 2006, the Coopers filed a complaint against the Defendants. The Coopers claim that materials were not produced, a deposit was never made to secure the price of an elevator, and the project was not adequately supervised or timely constructed. The Coopers asserted claims for breach of contract, negligent and fraudulent misrepresentation, misappropriation, and conversion of money. The complaint did not request a specific sum for damages.

¶ 5. On March 20, 2006, the Circuit Clerk of Itawamba County served a summons on the Mississippi Secretary of State. The secretary of state subsequently served Woodkrest and Nationwide “by sending a copy of the summons and of the complaint to the person to be served by certified mail, return receipt requested.” M.R.C.P. 4(c)(5). This subsection further states that service shall be deemed complete as of the date of delivery as evidenced by the return receipt or by a returned envelope marked “refused.” Id. Although Kress signed the return receipts for Woodkrest and Nationwide, he failed to enter the date of delivery. On March 31, 2006, the circuit clerk received confirmation of receipt. Kress was also served by certified mail. His wife, Teresa Kress, signed the return receipt and entered February 10, 2006, as the date of delivery. Considering that the suit was not filed until March 6, 2006, and that the circuit clerk received the confirmation of receipt on April 4, 2006, it is reasonable to conclude that this was an inadvertent clerical error, and service was actually received on March 10, 2006.

¶ 6. The Defendants failed to file a timely response to the complaint.

¶ 7. On April 28, 2006, the Coopers filed an application for entry of default and supporting affidavit. The circuit clerk entered a default, dated April 28, 2006.

¶ 8. On April 28, 2006, the Coopers also filed a motion for default judgment against the Defendants. Attached to the motion was an affidavit that asked for “total damages realized ... [in] the sum of $119,387.14 [in] compensatory damages, together with $268,161.42 in punitive damages, $5,000 attorney’s fees and expenses, pre-judgment and post-judgment interest and all costs incurred herein.” The Coopers’ attorney filed a notice of hearing that set the date for “an ex parte hearing on the matter of determination of damages,” which set a hearing for May 4, 2006. The notice did not indicate whether any of the Defendants were sent a copy of the Notice.

¶ 9. On May 9, 2006, the circuit court entered a default judgment against the Defendants, which awarded the Coopers damages in the sum of $119,387.14 in compensatory damages, together with $268,161.42 in punitive damages, $5,000 in attorney’s fees and expenses, and prejudgment and post-judgment interest at the legal rate.

¶ 10. On November 29, 2006, the Defendants filed a motion to set aside the default judgment. By order dated April 10, 2007, the court denied the motion. On April 18, 2007, the Defendants filed a “motion requesting re-hearing and, in the alternative, motion requesting findings of fact and ruling of law.” On April 3, 2008, the circuit court denied the Defendants’ motion for rehearing but included several pages of findings of facts and conclusions of law.

¶ 11. On April 29, 2008, the Defendants served their notice of appeal. The supreme court deflected the case to this Court for review.

STANDARD OF REVIEW

¶ 12. The standard of review for a circuit court’s denial of a motion to set aside a default judgment is an abuse of discretion. McCain v. Dauzat, 791 So.2d 839, 842(¶ 5) (Miss.2001). The circuit court’s “discretion must be exercised in accordance with the provisions of Rules 55(c) and 60(b) [of the Mississippi Rules of Civil Procedure] as well as the supplementary criteria given validity in the decisions of this Court.” Guar. Nat’l Ins. Co. v. Pittman, 501 So.2d 377, 388 (Miss.1987).

ANALYSIS

1. Was service proper?

¶ 13. The Defendants argue that service was improper because the proof of service for Woodkrest and Nationwide was not dated by Kress at signing and the proof of service for Kress was dated February 10, 2006, before the suit was filed on March 6, 2006. The Coopers argue that the Defendants waived any defect in service when they failed to raise the issue in the circuit court.

¶ 14. Rule 4 of the Mississippi Rules of Civil Procedure provides the appropriate methods for service of process. Rule 12 of the Mississippi Rules of Civil Procedure provides how a defendant may raise or waive certain defenses. “A court can consider the affirmative defenses of insufficiency of process and insufficiency of service of process only if they are properly raised and have not been waived.” Fletcher v. Limeco Corp., 996 So.2d 773, 776(¶ 8) (Miss.2008). Rule 12 provides when the defense of insufficiency of process should be raised or will be deemed waived:

(g) Consolidation of Defenses in Motion. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to him. If a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated.
(h) Waiver or Preservation of Certain Defenses.
(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by a motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.

On appeal, this Court must determine if the Defendants waived the issue of insufficiency of service of process before the circuit court.

¶ 15. Regarding their first filing, in the motion to set aside the default judgment, the Defendants did not claim that service was improper. Indeed, the Defendants expressly admitted that “[t]he Defendants were served either under the Mississippi Long-Arm Statute or personally by certified mail.” The motion continued with the claim that: (1) Kress did not realize that he had actually been served a summons, even though he had signed for the summonses for Woodkrest and Nationwide; (2) Kress and his wife, Teresa, were “on road” from February until May so they were not aware of the suit; and (3) Kress and Teresa were engaged in ongoing conversations with the Coopers in an attempt to settle the matter and that they did not understand that the Coopers had filed suit. However, none of these arguments raise the issue of insufficiency of service of process. Again in the motion for rehearing, the Defendants did not mention insufficiency in the service of process.

¶ 16. The circuit judge correctly stated that the Defendants had not contested the sufficiency of service of process. Accordingly, we find that the circuit judge did not abuse his discretion. There is no merit to this issue.

2. Should, the default be set aside?

¶ 17. The Defendants claim that the entry of default should be set aside under Mississippi Rule of Civil Procedure 55(c) for good cause and the default judgment should be set aside under Mississippi Rule of Civil Procedure 60(b)(6). The Coopers respond that this claim is time barred under Rule 60, and alternatively, that the Defendants have failed to satisfy the three prong test for relief from a default judgment.

¶ 18. The Defendants claim relief pursuant to Rule 60(b)(6) claiming that they did not know about the suit. Rule 60(b) provides, in part, that:

the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(8) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.

Although relief under Rule 60(b)(l)-(S) must be sought within six months, relief under Rule 60(b)(6) must only “be made within a reasonable time.” M.R.C.P.60(b). This claim is not time-barred; therefore, we address it on the merits. “Default judgments are not favored as a way to settle lawsuits. It is the policy of our system of judicial administration to favor disposition of cases on their merits.” Wheat v. Eakin, 491 So.2d 523, 526 (Miss.1986).

¶ 19. The supreme court has “opted for a balancing-test approach to Rule 60(b) motions.” H & W Transfer & Cartage Service, Inc. v. Griffin, 511 So.2d 895, 898 (Miss.1987). When considering whether to set aside a default judgment the supreme has directed that the following be considered:

(1) the nature and legitimacy of defendant’s reasons for his default, i.e., whether the defendant has good cause for default, (2) whether defendant in fact has a colorable defense to the merits of the claim, and (3) the nature and extent of prejudice which may be suffered by the plaintiff if the default judgment is set aside.

Id.

¶ 20. The Defendants must first put forward a good cause for default. In the circuit court, the Defendants argued that they did not know they were being sued. In support of their argument, they claimed that: (1) Kress did not realize that he had actually been served a summons, even though he had signed for the summons for Woodkrest and Nationwide; (2) Kress and Teresa were “on road” from February until May; (3) Kress and Teresa were engaged in ongoing conversations with the Coopers in an attempt to settle the matter; and (4) the Coopers did not tell the Kress-es that they had filed suit. In their appeal to this Court, the Defendants restate these reasons for default.

¶21. The circuit court found that the Defendants had failed to present any evidence of good cause or even excusable neglect for the failure to take action to protect their rights. We agree. The Defendants’ only argument is that they were unaware of the suit. However, the facts do not support their argument. Kress signed for the summonses for Woodkrest and Nationwide, and Teresa signed for Kress’s summons. Part one of the test weighs in favor of the Coopers.

¶ 22. Next, the Defendants must show that they have a colorable defense. “In order to show a colorable defense, a party ‘must show facts, not conclusions, and must do so by affidavit or other sworn form of evidence.’ ” Greater Canton Ford Mercury, Inc. v. Lane, 997 So.2d 198, 204(¶ 21) (Miss.2008) (quoting Rush v. N. Am. Van Lines, Inc., 608 So.2d 1205, 1210 (Miss.1992)). In the circuit court, the only defense the Defendants asserted is that the Coopers had failed to pay an additional $22,195.15 for the doors and windows so they did not order them. This alleged defense goes to only one of the Coopers’ claims—that materials were not produced. The Defendants admit that, although doors and windows were paid for, they were not ordered. The Defendants do not address the allegations that a deposit was never made to secure the price of an elevator and that the project was not adequately supervised or timely. The second part of the test weighs in favor of the Coopers.

¶ 23. Because the Defendants failed to present good cause for their default or a colorable defense, we do not address part three of the test—whether the Coopers would be prejudiced if the default were set aside. Hence, we find that the circuit court correctly denied the Defendants’ motion to set aside the default judgment. We find no merit to this issue.

3. Are the Defendants entitled to a hearing on damages?

¶24. The Defendants’ final argument is that the circuit court erred when it awarded the Coopers unliquidated damages without a hearing on the record. The Coopers claim that the damages are primarily liquidated damages and that there was a hearing on May 4, 2006, to determine damages.

¶ 25. In Lane, 997 So.2d at 206(¶ 30), the supreme court held:

The assessment of damages is a finding of fact, and the appellate court reviews an award of damages under the clearly erroneous standard. This Court has stated that damage awards are only overturned when the trial judge has abused his discretion or in exceptional cases where such awards are so gross as to be contrary to right reason. The appellate court must review the damages award by looking to the “facts of each case.”

(Internal quotations and citations omitted). “An on-the-record hearing must be held prior to the entry of default judgment under which unliquidated damages are requested.” Capital One Servs. v. Rawls, 904 So.2d 1010, 1018(¶ 26) (Miss.2004).

¶ 26. Here, the circuit court awarded the Coopers $119,387.14 in compensatory damages, which included $30,000 for the delay in construction; $268,161.42 in punitive damages; and $5,000 in attorney’s fees. The Coopers argue that the circuit court conducted a hearing on damages. However, if there was a hearing on damages, it was not included in the record.

¶ 27. The Coopers also claim that the damages awarded were primarily liquidated damages. We disagree. Liquidated damages are those that “are set or determined by a contract when a breach occurs. Unliquidated damages are damages that have been established by a verdict or award but cannot be determined by a fixed formula, so they are left to the discretion of the judge or jury.” Moeller v. Am. Guar. & Liab. Ins. Co., 812 So.2d 953, 959(¶ 18) (Miss.2002) (internal quotations omitted).

¶ 28. After a review of the record before us, this Court is unable to reconcile mathematically the award for compensatory damages with the worksheet — “Funds due from Woodkrest Custom Homes,” which was attached to the Coopers’ motion for default judgment. Furthermore, the circuit court awarded the Coopers $30,000 in unliquidated damages and $268,161.42 in punitive damages.

¶ 29. The supreme court has recognized that:

Although punitive damages are not ordinarily recoverable in cases involving breach of contract, they are recoverable where the breach results from an intentional wrong, insult, or abuse as well as from such gross negligence as constitutes an independent tort. In these instances, they act to punish, and are to set an example, thereby discouraging others from similar behavior. As such, punitive damages are allowed only with caution and within narrow limits.
Before punitive damages can be recovered from the defendant, the plaintiff must prove by a preponderance of the evidence that the defendant acted with (1) malice, or (2) gross negligence or reckless disregard for the rights of others.

Hurst v. Sw. Miss. Legal Sens. Corp., 708 So.2d 1347, 1350(116) (Miss.1998) (internal citations and quotations omitted). The punitive damages awarded were unliquidated damages because they were not set or determined by a contract when the breach occurred. Further, there is no finding by the circuit court that the Defendants acted with malice or gross negligence or reckless disregard for the rights of others.

¶ 30. Accordingly, we vacate the default judgment insofar as the award of damages, and we remand this case based on the circuit court’s failure to conduct an on-the-record hearing regarding damages and instruct that such hearing on damages be held.

¶ 31. THE JUDGMENT OF THE ITAWAMBA COUNTY CIRCUIT COURT DENYING THE MOTION TO SET ASIDE DEFAULT JUDGMENT IS AFFIRMED. THE AWARD OF DAMAGES IS VACATED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . The Coopers claim that Woodkrest and Nationwide can be served pursuant to the long-arm statute with service of process on the office of the Mississippi Secretary of State. The current version of Mississippi’s long arm-statute, Mississippi Code Annotated section 13-3-57 (Rev.2002), does not provide for service upon the secretary of state for a nonresident business not qualified to do business in state. However, the Defendants did not raise this issue on appeal.

      . On appeal, the Defendants argue that Kress was never served and that the return receipt dated February 10, 2006, was actually for a certified letter sent to Kress prior to the suit. However, there is no evidence of this other certified letter in the record.


author: MYERS, P.J.,

text:
    In the Matter of the ESTATE and Last Will and Testament OF Willie Ray RUTLAND, Diane Rutland Nations, Gregory Rutland, Peggy Rutland Jones and Calvin Rutland, Appellants/Cross-Appellees v. Rickie Dale RUTLAND and Todd Rutland, Appellees/Cross-Appellants.
    No. 2008-CA-01671-COA.
    Court of Appeals of Mississippi.
    Dec. 8, 2009.

      Thomas M. Murphree, Malcolm T. Rogers, Monticello, Joseph Bilbo Moffett, Fay-ette, attorneys for appellants.
    Ray T. Price, Hattiesburg, attorney for appellees.
   MYERS, P.J.,

for the Court.

¶ 1. Willie Ray Rutland died on January 80, 2005, at the age of seventy-three. Willie Ray had never married and had no children. On February 28, 2005, his “double first” cousin William Calvin Rutland (Calvin) offered a January 18, 2002, will for probate that named him as executor and Diane Rutland Nations, Willie Ray’s niece, as sole beneficiary. On May 19, 2005, Rickie Dale Rutland and Todd Rutland, nephews of Willie Ray, filed a petition to set aside the 2002 will. Rickie and Todd also offered for probate a February 13, 1989, will that left Willie Ray’s real property to them. Following a trial to the court, the chancellor set aside both wills and found that the estate should proceed intestate. Calvin, Diane, and her siblings Peggy Rutland Jones and Greg Rutland appeal from that judgment, arguing that the chancellor erred in setting aside the 2002 will. Rickie and Todd cross-appeal, arguing that the chancellor erred in setting aside the 1989 will. Finding that the chancellor erred in setting aside the 2002 will, we reverse, render, and remand for proceedings consistent with this opinion.

FACTS

¶ 2. Willie Ray lived on an eighty-eight acre farm inherited from his parents and located in Lawrence County, Mississippi. In 1989, when Willie Ray was fifty-seven years old, he executed a will leaving his real property to Rickie and Todd. Around 1990, Willie Ray retired from his employment with the State of Mississippi.

¶ 3. In July 1996, Willie Ray executed a power of attorney in favor of Todd, and he executed a deed conveying his real property to Todd and Rickie, reserving a life estate for himself. Willie Ray also added Josie Nell Lambert, Todd’s and Rickie’s mother, as a joint owner of his bank accounts. Testimony generally agreed that Willie Ray’s physical health began to decline in the years that followed. Willie Ray suffered several falls at home. In November 1999, Willie Ray moved into the nearby New Dawn Retirement Center, a small assisted-living facility in Lincoln County, Mississippi.

¶4. In October 2001, Todd and Josie Nell attempted to move Willie Ray from New Dawn into Todd’s newly rented home in Hattiesburg, Mississippi. Willie Ray resisted, and he sought the assistance of his cousin and neighbor, Calvin. Willie Ray returned to New Dawn, and shortly thereafter Calvin introduced Willie Ray to attorney Malcolm Rogers. Rogers testified that Willie Ray wished to remain at New Dawn but had been told by his nephews that he was unable to afford it. Willie Ray was concerned about the management of his assets, particularly his real property and a certificate of deposit he believed was worth $10,000. Rogers’s subsequent investigation determined that Willie Ray essentially had no assets. Rogers also discovered the 1996 deed in the land records of Lawrence County. Rogers informed Willie Ray that the real property had been deeded to Todd and Rickie in 1996 and that the certificate of deposit, actually valued at about $25,000, had been withdrawn in October 1999 by Josie Nell. Most of the proceeds had been converted to certificates of deposit in Todd’s name only. Willie Ray told Rogers that he had been led to believe that he retained full title to the realty and would do so until his death and stated that he believed the 1996 deed had been a will.

¶ 5. On October 18, 2001, Willie Ray terminated Todd’s power of attorney and executed a power of attorney in favor of Diane. In January 2002, Willie Ray filed suit against Todd, Rickie, and Josie Nell, alleging that the 1996 deed had been procured by fraud and that, during the sixty-three month period Todd held power of attorney, they had mismanaged or diverted approximately $110,000 of his other assets. The suit was ultimately settled on June 23, 2003; the 1996 deed was set aside, and the other claims were dropped.

¶ 6. On January 18, 2002, Willie Ray executed a second will, naming Calvin as executor and Diane as sole beneficiary. This will was executed at New Dawn and witnessed by Rogers, Calvin, and the proprietor of New Dawn, Elaine Davis.

¶ 7. Following Willie Ray’s death in January 2005, Rutland and Diane offered the 2002 will for probate. Rickie and Todd filed a contest, alleging that Willie Ray lacked testamentary capacity to execute the 2002 will or, in the alternative, that it was a product of Diane’s undue influence. Rickie and Todd also offered the 1989 will for probate.

¶ 8. The chancellor, in a brief memorandum opinion, found that Willie Ray lacked testamentary capacity to execute the 2002 will. The chancellor cited Willie Ray’s 2002 lawsuit, which “brought into question [Willie Ray’s] capacity ... to understand what he was doing.” The chancellor also cited the testimony of “the bank officials and others.” The chancellor also set aside the 1989 will, finding that there was “no question that a fiduciary relationship existed” between Rickie, Todd, and Willie Ray.

STANDARD OF REVIEW

¶ 9. In reviewing the judgment of a chancery court, an appellate court “will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, applied an erroneous legal standard, was manifestly wrong, or was clearly erroneous.” Hamilton v. Hopkins, 884 So.2d 695, 699(¶ 12) (Miss.2003) (citations omitted). Additionally, where the chancellor has made no specific findings, we will proceed on the assumption that he resolved all such fact issues in favor of the appellee. Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990). A chancellor’s interpretation and application of the law, however, is reviewed de novo. Tucker v. Prisock, 791 So.2d 190, 192(¶ 10) (Miss.2001).

DISCUSSION

1. Direct Appeal: The 2002 Will

A. Testamentary Capacity

¶ 10. To make a valid will, the testator must have been of sound mind at the time the will was executed. Miss.Code Ann. § 91-5-1 (Rev.2004). The supreme court has stated that “the test of one’s capacity to execute a will is the ability of the testator at the time to understand and appreciate the nature and effect of his act, the natural objects or persons to receive his bounty, and their relation to him, and is capable of determining what disposition he desires to make of his property.” In re Estate of Edwards, 520 So.2d 1370, 1372 (Miss.1988) (citations omitted). The supreme court continued:

At trial, the will’s proponents carry the burden of proof, which they meet by the offering and receipt into evidence of the will and the record of probate. A prima facie case is made by the proponent solely by this proof. Afterwards, although the burden of proof remains on the proponents, the burden of going forward with proof of testamentary incapacity shifts to the contestants, who must overcome the prima facie case. The proponents may then present rebuttal proof if necessary. In short, the proponents must prove the testator’s testamentary capacity by a preponderance of the evidence.

Id. at 1372-73 (internal citations and quotations omitted).

¶ 11. Rogers and Calvin, subscribing witnesses to the 2002 will, testified unequivocally that Willie Ray possessed the requisite elements of testamentary capacity on January 18, 2002, when the will was executed. The record also contains the affidavit of Davis, an attesting witness, to the same effect.

¶ 12. The proponents of the 2002 will also offered the deposition of Dr. David Smith of the Pinnacle Medical Clinic in Summit, Mississippi. Dr. Smith testified that he had treated Willie Ray for a period of years before and after the execution of the 2002 will. On March 23, 2002, Dr. Smith examined Willie Ray and conducted a “mini mental status exam” at the patient’s request. Willie Ray scored “25 out of 30,” which Dr. Smith described as consistent with normal mentation. Dr. Smith noted that Willie Ray suffered from various medical conditions — hypertension, osteoarthritis, osteoporosis, monoclonal gam-mopathy of undetermined significance, and renal insufficiency- — but found “no evidence of dementia nor any impairment in his ability to make his own decisions.” Finally, Dr. Smith opined, to a reasonable degree of medical certainty, that on January 18, 2002, Willie Ray was capable of each of the requisite elements of testamentary capacity.

¶ 13. While the proponents of the will clearly made a prima facie case, the chancellor found that Willie Ray lacked testamentary capacity to execute the 2002 will. The chancellor cited the 2002 lawsuit against Rickie, Todd, and Josie Nell, as well as “the testimony of the bank officials and others.” In reviewing the record, however, we find little evidence that could support this finding.

¶ 14. Only the agreed settlement from the 2002 lawsuit cited by the chancellor has been made part of the record, and it offers no support for his findings regarding the prior lawsuit. Furthermore, the testimony in the record regarding this suit was unanimous that it concerned only actions undertaken between 1996 and October 2001; we fail to see any relevancy to Willie Ray’s testamentary capacity on January 18, 2002. See In re Estate of Smith, Smith v. Averill, 722 So.2d 606, 611(¶ 13) (Miss.1998) (holding that the relevant time for testamentary capacity is the date of the execution of the will at issue).

¶ 15. Only a single deposition from a bank official was entered into evidence, that of Brenda Henderson, a financial service representative at Trustmark Bank. Her testimony primarily concerned the disposition of Willie Ray’s certificate of deposit and bank accounts. While she did note that Willie Ray “made it clear he was getting up in age” and had added Josie Nell to his accounts so “she could handle things for him if he was not able to,” Henderson offered nothing bearing upon Willie Ray’s testamentary capacity at the time of the 2002 will.

¶ 16. In reviewing the record, we find only two other witnesses that could support the chancellor’s finding, Rickie and Todd. Rickie, who lived in Atlanta, Texas, testified that by 2001 he would only visit with Willie Ray “probably four times a year for a couple days.” He also acknowledged that he had not spoken with Willie Ray for “a few months” prior to the execution of the 2002 will. Rickie testified that by that time Willie Ray had a “decreased” or “deteriorated” mental capacity and “was not fully functional.” When asked to cite examples of Willie Ray’s behavior that led him to this conclusion, Rickie testified that Willie Ray “was living alone most of the time,” “wouldn’t bathe,” had “quit driving,” and had “fallen down a couple of times.”

¶ 17. Todd testified that around 1998, Willie Ray “started going down.” Todd testified that Willie Ray “would forget things,” and related that a woman had come to Willie Ray’s house and offered to paint it. She distracted Willie Ray while another man attempted to burglarize the home. Todd stated that he believed Willie Ray had “started going kind of down” because “in a couple of weeks, the same people came back and tried to do it again.” Todd also testified that after Willie Ray moved into New Dawn in November 1999, “[his mental condition] progressively got worse.” By the time of the execution of the 2002 will, Todd testified, “I don’t think he really knew exactly what he was doing.” Todd testified that he had “tried to stay away from [Willie Ray] as much as possible,” after October 2001, but Todd added that “when we’ve had court proceedings ... he was like the same old uncle, like nothing had ever happened.”

¶ 18. Both Todd and Rickie denied that they or their mother had mismanaged Willie Ray’s assets. Each also testified that Willie Ray had executed the 1996 deed on his own initiative and that neither nephew had been involved in transferring the property.

¶ 19. In reviewing this testimony we find nothing sufficient to support the chancellor’s finding that Willie Ray lacked testamentary capacity. Both Rickie and Todd acknowledged that they had not seen Willie Ray for several months prior to the execution of the 2002 will. “[T]estimony regarding capacity from witnesses who have not seen the testator in months will be deemed irrelevant by the Court.” Averill, 722 So.2d at 611(1113). Such proof is “too distant to have significant import.” Id. at (¶ 15).

¶ 20. Furthermore, we require that the opinions of lay witnesses regarding testamentary capacity be supported by “facts as a basis for the witnesses’ conclusion.” In re Estate of Briscoe, 293 So.2d 6, 8 (Miss.1974). Overly broad or generalized testimony indicating a lack of capacity will be deemed insufficient where it is contradicted by competent evidence and is “obviously based upon the infirmities of advancing age rather than upon any abnormal conduct indicative of mental aberration.” Id. Therefore, Rickie’s and Todd’s testimonies, at best, could demonstrate some occasional deficiency in Willie Ray’s long-term memory; such is not sufficient to establish an absence of testamentary capacity. See, e.g., Averill, 722 So.2d at 611(1113) (holding that a person generally lacking testamentary capacity may make a valid will during a “lucid interval” where capacity exists).

¶ 21. Finally, on appeal the nephews argue that Willie Ray “was not even aware of the status of ownership of his property, nor the totality of his estate.” This is an apparent reference to Willie Ray’s confusion as to the value of his certificate of deposit and his belief that he retained full title to his real property. The only testimony regarding this, however, was offered by the attorney, Rogers, who testified that this was Willie Ray’s belief at the beginning of his representation of Willie Ray in October 2001. Rogers also testified that, at the time of the execution of the 2002 will, Willie Ray understood that he no longer possessed the certificate of deposit or full title to the property; Willie Ray filed the 2002 lawsuit contemporaneously with the execution of the will in an attempt to recover this property.

¶ 22. After a thorough review of the record, we conclude that the chancellor’s finding that Willie Ray lacked testamentary capacity to execute the 2002 will is not supported by sufficient evidence in the record.

B. Undue Influence

¶ 23. While the chancellor did not expressly find that the 2002 will was a product of Diane’s undue influence, this was an alternative theory offered by the contestants. On appeal, they urge this court to assume that the chancellor resolved this issue in their favor and affirm the chancery court’s judgment setting aside the 2002 will as a product of undue influence.

¶ 24. We have stated:

A will is said to be the product of undue influence when an adviser has been so importunate as to subdue the testator’s will and free agency. Such may be accomplished through a variety of methods, such as advice, arguments, or persuasion. However, not all influence exerted is undue. The influence must have been so overwhelming that the resulting instrument reflected the will of the adviser rather than the testator.

In re Estate of Pigg, 877 So.2d 406, 411(1124) (Miss.Ct.App.2003) (internal citations omitted).

¶ 25. A presumption of undue influence arises where a confidential relationship exists between the testator and a beneficiary and there is “some showing that the beneficiary under the will abused the relationship either by asserting dominance over the testator or by substituting his intent for that of the testator.” In re Estate of Grantham, 609 So.2d 1220, 1224 (Miss.1992). Such can be accomplished “where a beneficiary actively participates in the procurement, preparation or execution of the will.” Id.

¶ 26. In reviewing the record, we find it insufficient to support a finding of undue influence through direct evidence. The question of whether a presumption of undue influence arose requires further examination. Clearly, there was sufficient evidence to find that a confidential relationship existed between Diane and Willie Ray at the time of the execution of the will: Willie Ray suffered from numerous physical ailments; he resided in an assisted-living facility and required assistance to travel; Diane possessed a power of attorney; and she had handled Willie Ray’s finances since October 2001.

¶ 27. Assuming that a confidential relationship existed, the contestants must still produce evidence of an abuse of that relationship relating to the execution of the will. In reviewing the record, it is apparent that they failed to meet that burden.

¶ 28. Both Todd and Rickie admitted that they knew nothing of the circumstances of the execution of the 2002 will. Willie Ray’s cousin, Calvin, and his attorney, Rogers, both testified that Willie Ray had been introduced to Rogers by Calvin. The scope of the initial representation was not the drafting of a will, but the severance of the fiduciary relationship between Willie Ray and Todd and the recovery of Willie Ray’s assets that he believed had been wrongly diverted to his nephews.

¶ 29. Rogers testified that, while meeting with Willie Ray at New Dawn to discuss the 2002 lawsuit, he explained that if Willie Ray were to die during the pen-dency of the suit, any property recovered in the suit would be divided between his heirs at law through intestate succession. Calvin was present during the meeting, and Davis was “in and out,” but Diane was not present.

¶ 30. Rogers asked Willie Ray if he desired a specific disposition of his property, and at that point Willie Ray asked Rogers to prepare a will. Willie Ray volunteered that he wished to leave his property to his niece, Diane.

¶ 31. Rogers testified that, at the time the will was executed, he “may” have met Diane once. Rogers testified that he had encountered Diane in the parking lot at New Dawn on one occasion, as she was arriving and he was leaving, but Rogers was unsure whether this was before or after the will was executed.

¶ 32. After discussing the will further with Willie Ray, Rogers returned to his office, drafted the will, and returned to New Dawn where the will was executed the same day.

¶ 33. Diane testified that she “had nothing to do” with the execution of the 2002 will. She testified that she lived in Roxie, Mississippi, and was not present at or near New Dawn on January 18, 2002. Diane stated that she had learned of the will several days or weeks after its execution.

¶ 34. The only testimony that could support a presumption of undue influence is Diane’s admission that she had driven Willie Ray to Rogers’s office once, or possibly twice, some time in 2001. This alone is simply too tenuous and too remote to the execution of the 2002 will to prove an abuse of the confidential relationship sufficient to raise a presumption of undue influence.

¶ 35. Therefore, we find the evidence insufficient to support a finding that the 2002 will resulted from undue influence. Accordingly, the chancellor erred in setting aside the 2002 will.

2. Cross-Appeal: The 1989 Will

¶ 36. The chancellor found the 1989 will should be set aside, citing “a fiduciary relationship” between Willie Ray and Todd and Rickie. On cross-appeal, the nephews argue that this finding was unsupported by the record and legally insufficient to set aside the will. They also argue that no evidence in the record can support setting the 1989 will aside. On our review of the record, we agree with the first two propositions: no testimony or evidence offered at trial could support a finding of a confidential relationship between Rickie or Todd and Willie Ray in 1989, nor was any evidence offered that there was an abuse of such relationship if it existed. See Costello v. Hall, 506 So.2d 293, 298 (Miss.1987). However, we find that the 1989 will was nonetheless properly set aside because the 2002 will expressly revoked all prior wills. See Miss.Code Ann. § 91-5-3 (Rev.2004). Accordingly, this issue is without merit.

¶ 37. THE JUDGMENT OF THE CHANCERY COURT OF LAWRENCE COUNTY IS REVERSED, AND JUDGMENT IS RENDERED FINDING THAT THE 2002 WILL IS VALID AND SHALL BE ADMITTED TO PROBATE. THE JUDGMENT IS AFFIRMED ON CROSS-APPEAL. THE CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPEL-LEES/CROSS-APPELLANTS.

KING, C.J., LEE, P.J., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, J., NOT PARTICIPATING.

      . While the pleadings in the 2002 action were not made part of the record on appeal, testimony indicated that Willie Ray cited approximately $32,650 in checks written from his account to Josie Nell, $4,900 in checks to Todd, $2,775 in checks to "cash,” $18,600 in checks written to Walmart, $6,600 in ATM withdrawals, $1,200 in overdraft charges, $27,000 from the certificate of deposit (including interest and early withdrawal penalties), and $16,660 in retirement checks not deposited to Willie Ray's accounts.

      . Rickie testified that he had last seen Willie Ray sometime after the family began discussing moving Willie Ray from New Dawn to Todd’s home in Hattiesburg, but that the final visit was prior to the October 2001 falling out.

      . Todd testified on cross-examination that he stopped seeing Willie Ray in October 2001 and did not see Willie Ray again until some time in 2003.

      . Rogers was, apparently, unaware of the 1989 will at the time.


author: KING, C.J.,

text:
    CNRS & Z, INC. d/b/a NU-2-U Auto Sales, Appellant, v. Randy MEDIOUS, Appellee.
    No. 2008-CA-01925-COA.
    Court of Appeals of Mississippi.
    Dec. 8, 2009.

      Alexander Ignatiev, attorney for appellant.
    Randy Medious (pro se), attorney for appellee.
    Before KING, C.J., BARNES and ROBERTS, JJ.
   KING, C.J.,

for the Court.

¶ 1. CNRS & Z, Incorporated, doing business as Nu-2-U Auto Sales, filed an action for replevin in the Circuit Court of Marion County against Randy Medious. CNRS & Z alleged that Medious was unable to obtain financing for a vehicle that he had purchased from the car dealership and demanded its return. The trial court found in favor of Medious, finding that CNRS & Z breached the retail installment contract and that CNRS & Z was responsible for the lien on Medious’s trade-in vehicle. Aggrieved, CNRS & Z appeals the trial court’s judgment. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 1, 2008, Medious contracted with CNRS & Z, the creditor-seller, to trade in his 2002 Buick Rendezvous toward the purchase of a 2006 Chevrolet Impala. The total sale price of Medious’s purchase on credit, including finance charges and other applicable fees and minus his down payment of $5,340, was $19,340.67. Per the terms of the agreement, Medious was obligated to make fifty-seven payments of $339.41. The contract also contained a provision, notifying Medious that CNRS & Z had assigned its rights in the contract to Credit Acceptance Corporation.

¶ 3. CNRS & Z claimed that Credit Acceptance denied Medious’s application for financing. The record shows that CNRS & Z sent a request to Credit Acceptance on May 15, 2008, asking Credit Acceptance to reassign all of its rights, title, and interest in the Impala and the contract with Medious back to CNRS & Z. Credit Acceptance sent a letter to Medious on May 15, 2008, which stated the following:

As you know your retail installment contract was assigned to Credit Acceptance Corporation ... from your Selling Dealer. However, your Selling Dealer has asked us to re-assign your contract back to him. Based on this request, Credit Acceptance is in process of honoring this request subject to your Selling Dealer fulfilling his re-assignment requirement.
Until the re-assignment is complete, you are obligated to continue honoring the terms and conditions of your retail installment contract, including making your payments to Credit Acceptance. Once your contract has been re-assigned to your Selling Dealer, Credit Acceptance will send you a notice informing [you] of such re-assignment.

On May 20, 2008, Medious received a second letter from Credit Acceptance, informing him that the contract had been reassigned to CNRS & Z and that all future payments should be remitted to CNRS & Z. Medious testified that he remitted his next car payment to CNRS & Z and that the car dealership refused to accept his payment.

¶ 4. Based on the allegation that Medious failed to obtain financing for his purchase, CNRS & Z returned the Buick to Medious and attempted to reclaim the Impala. Medious refused to return the Impala, and he refused to exercise further ownership of the Buick. Eventually, the Buick was repossessed.

¶ 5. On June 6, 2008, CNRS & Z filed an action for replevin against Medious, seeking return of the Impala. The trial court ordered Medious to place the Impala in storage until a final judgment was reached on the merits of the case and informed the parties that the cost of storage would be born by the losing party.

¶ 6. The trial court entered its judgment on October 2, 2008, and entered an amendment to the judgment on October 10, 2008. Essentially, the trial court found that the retail installment contract did not contain any express or implied condition requiring Medious to obtain financing from a third party. The trial court found that the contract was legally binding and enforceable between the parties, and CNRS & Z breached the contract by returning the trade-in vehicle to Medious and by refusing to accept Medious’s payments for the Impala. Accordingly, the trial court entered a judgment against CNRS & Z, holding the car dealership responsible for the lien on the Buick and the towing and storage fees for the Impala. Medious was ordered to continue making payments for the Impala to CNRS & Z. CNRS & Z alleges that after the final judgment was rendered, Medious failed to make subsequent payments for the Impala, and the vehicle was repossessed.

¶ 7. Aggrieved by the trial court’s ruling, CNRS & Z timely filed a notice of appeal. On appeal, CNRS & Z simply argues that the trial court erred by finding that it had breached the contract with Medious. Me-dious failed to file a brief on appeal.

ANALYSIS

¶ 8. As previously mentioned, Medious failed to submit a brief on appeal. Typically, a party’s failure to submit a brief on appeal is equivalent to a confession of the errors alleged by the opposing party. Miss. Employment Sec. Comm’n v. Hudson, 757 So.2d 1010, 1013, (8) (Miss.Ct.App.2000). However, the Court does not have to accept the opposing party’s failure to file a brief as an admission that the allegations are true if “we can with confidence say, after considering the record and brief of [the] appellant, that there was no error [in the trial court’s decision].” Id. (quoting Miss. Employment Sec. Comm’n v. Pennington, 724 So.2d 954, 955(7) (Miss.Ct.App.1998)). After reviewing the record and CNRS & Z’s brief, we are confident in the trial court’s decision and, thus, undertake a review of the merits of this action.

¶ 9. On appeal, the factual findings of a trial judge sitting without a jury are accorded the same deference as a chancellor’s findings of fact. City of Jackson v. Powell, 917 So.2d 59, 68(34) (Miss.2005). The trial court’s findings must be “supported by substantial, credible, and reasonable evidence.” Id. (quoting City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000)). This Court will not disturb the trial court’s findings of fact “unless they are manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id. However, questions of law, which includes the interpretation of contracts, are reviewed de novo. See id.; see also Wesley M. Breland, Realtor, Inc., v. Amanatidis, 996 So.2d 176, 179(14) (Miss.Ct.App.2008).

¶ 10. CNRS & Z contends that Medious breached the retail installment contract because (1) he failed to obtain financing to purchase the Impala; (2) he failed to make his car payments; and (3) he allowed his trade-in vehicle to be repossessed. Based on the foregoing, CNRS & Z argues that the trial court erred by finding that the car dealership breached the retail installment contract and that the car dealership was responsible for the lien on the Buick.

A. Whether there was a contract to sale.

¶ 11. To determine whether the retail installment contract had been breached, the trial court first determined whether there was a contract to sale and the terms of that contract. The rules regarding the construction of a contract are clear. First, the Court must look to the “four corners” of the contract and review the language the parties used to express their agreement. Facilities, Inc. v. Rogers-Usry Chevrolet, Inc., 908 So.2d 107, 111(10) (Miss.2005). Next, if the Court is unable to grasp a clear understanding of the agreement from the “four corners” of the contract, the Court should apply the canons of contract construction. Id. at (11). Last, if the canons of contact construction prove to be insufficient, the Court may consider parol evidence to determine the parties’ intentions. Id.

¶ 12. The retail installment contract between CNRS & Z and Medious reads, in pertinent part, that:

You may buy the Vehicle described below for cash or credit. The cash price is shown below as the “Cash Price.” The credit price is shown below as “Total Sale Price.” You have agreed to buy the Vehicle from Us on credit for the Total Sale Price. You acknowledge delivery and acceptance of the Vehicle in good condition and repair. You promise to pay Us all amounts due under the Retail Installment Contract (“Contract”), including the Total Sale Price, in accordance with the payment schedule shown in the Truth in Lending Disclosures below. You also agree to the terms and conditions below ... and on the reverse side of this Contract....

There is no language in the contract that suggests that the sale of the vehicle was contingent upon Medious obtaining financing from a third party.

¶ 13. CNRS & Z argues that it was not required to finance the purchase for Medious. CNRS & Z also argues that the sale was not complete because it did not transfer the title to the Impala to Medious, contrasting this case with Hobbs Automotive, Inc. v. Dorsey, 914 So.2d 148 (Miss.2005). In Hobbs, the buyers contracted to purchase a vehicle from a car dealership and were given the title to the vehicle. Id. at 151(11). Later, an issue arose with the buyers’ financing, and the car dealership filed an action of replevin against the buyers. Id. at 150(2). In Hobbs, the retail installment contract actually contained a provision that stated that the car dealership was not obligated to sell the vehicle to the buyers until the terms of the retail installment contract were approved and accepted by a financing institution. Id. at 151(12). The supreme court found that “not being under an obligation to sell the automobile did not prevent the Dealership from selling to the [buyers]” and found that there was substantial evidence in the record showing that a sale had occurred. Id. at 151(14).

¶ 14. After reviewing the retail installment contract in this case, we find that the “four corners” of the contract are clear and unambiguous. If the sale of the Impala was contingent upon Medious obtaining third party financing, CNRS & Z should have used language in the contract to express so. No such language was included in the contract. The retail installment contract was between CNRS & Z and Me-dious. The contract clearly stated that Medious agreed to buy the Impala from CNRS & Z on credit, and he promised to pay CNRS & Z all amounts due under the contract. CNRS & Z attempted to assign its interest in the contract to Credit Acceptance and did so unsuccessfully. In regard to the transfer of title, the fact that the title to the vehicle was transferred in Hobbs was only one factor that the supreme court considered in its finding that a sale had occurred. We find that this issue is immaterial in this case.

¶ 15. Since the retail installment contract is not ambiguous, we do not reach CNRS & Z’s argument concerning the canons of contract construction and the use of parol evidence. Based on the foregoing, we find that the trial court did not err by finding that the transaction between Medious and CNRS & Z was a legally binding sale.

B. Breach of Contract

¶ 16. It is clear that the trial court based its decision regarding the breach of contract claim on factual grounds. Thus, this Court will give deference to the trial court’s findings of fact. Powell, 917 So.2d at 68(34).

¶ 17. The terms of the contract called for Medious to trade in his Buick and to make monthly payments to CNRS & Z in order to receive the Impala. The trial court found that Medious traded in his Buick, and he remitted his payments to CNRS & Z. The trial court also found that CNRS & Z tried to return the Buick to Medious and refused to accept Medious’s car payment. Despite CNRS & Z’s attempt to reject the delivery of Medious’s trade-in vehicle and to refuse acceptance of Medious’s payments, Medious completed his obligations under the contract. Conversely, the trial court found that CNRS & Z breached the contract. Based on a review of the record, we find that the trial court’s decision was supported by substantial evidence. Thus, the trial court did not err by finding that CNRS & Z had breached the contract.

¶ 18. CNRS & Z has brought it to the Court’s attention that the Impala was repossessed after the trial court rendered its judgment because Medious defaulted on the contract. At the time the judgment was rendered in the trial court, Medious had not defaulted under the contract. Any evidence regarding a subsequent breach is not properly before this Court and is of no consequence to the issues before this Court today. See Paracelsus Health Care Corp. v. Willard, 754 So.2d 437, 441(16) (Miss.1999) (stating that an appellate court “can only review matters on appeal as were considered by the lower court).” This argument is without merit.

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

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.

      .At the time of the sale, Medious executed a retail installment contract with CNRS & Z, a form giving CNRS & Z permission to obtain his credit report, a form giving Credit Acceptance permission to access his personal information and credit history, and a request for GAP insurance coverage.

      . Medious testified that he had received a payment book from Credit Acceptance. This payment book was admitted into evidence and is included in the record on appeal.

      . Trial testimony suggests that Credit Acceptance was the financing lender for the Buick.

      . During the trial, Medious dropped his claim for the value of the trade-in vehicle. Credit Acceptance, the alleged lender for the Buick, was not a party to this action.


author: BARNES, J., ROBERTS, J.,

text:
    Bridgit WILLIAMS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KP-00227-COA.
    Court of Appeals of Mississippi.
    Dec. 15, 2009.

      Bridgit Williams (pro se), attorney for appellant.
    Office of the Attorney General by: Laura Hogan Tedder, attorney for appellee.
    Before KING, C.J., BARNES, and CARLTON, JJ.
   BARNES, J.,

for the Court.

¶ 1. A Madison County grand jury indicted Bridgit Williams for felony shoplifting in violation of Mississippi Code Annotated section 97-23-93 (Supp.2003). After a jury trial in the Madison County Circuit Court, Williams was convicted and sentenced as a habitual offender to serve ten years in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole or probation and to pay a fine of $10,000. Williams now appeals, claiming that her sentence is unconstitutional and illegal.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On January 20, 2004, a loss-prevention officer for the Dillard’s department store, located in Ridgeland, Mississippi, observed Williams and another suspect, Sharon Harris, selecting merchandise and carrying the items to one location, behind a rack of clothing. The officer also noticed Williams concealing some of the merchandise in a shopping bag. These activities continued for approximately twenty minutes. When Williams and Harris attempted to depart the store without paying for the merchandise, the officer detained them. Upon searching the bag in Williams’s possession, the officer found ten items of clothing, the total value of which was over $500. None of the items had proof of purchase labels, an indicator that they had been sold.

¶ 3. On June 9, 2004, Williams was indicted for felony shoplifting pursuant to Mississippi Code Annotated section 97-23-93. It was later discovered that Williams had been previously convicted of two felonies: felony shoplifting on August 17, 1995, which carried a sentence of three years in custody, with her sentence suspended for five years, during which time she was on probation; and possession of less than an ounce of marijuana with intent to distribute on July 21, 1999, for which she was sentenced to one year in the custody of the MDOC, with the sentence to run concurrently with her previous felony shoplifting sentence, which was revoked for probation violation. On January 26, 2005, the State filed a motion to amend the instant indictment to include habitual offender status.

¶ 4. Williams’s jury trial was held on February 3, 2005, at which time the circuit court granted the State’s motion to amend the indictment. During the trial, Williams informed the circuit court that she wanted to testify on her own behalf. The court called a lunch recess; however, Williams did not return to the courtroom after the recess. The circuit court entered a bench warrant for Williams, revoked her bond, and the trial proceeded in her absence. The jury convicted Williams of felony shoplifting, and she was sentenced, as a habitual offender, to ten years in custody of the MDOC without eligibility for parole or probation. She was also assessed a $10,000 fine plus costs. Williams was eventually detained in Tennessee in August 2006 and extradited to Mississippi to begin serving her sentence.

¶ 5. Despite Williams’s absence, her defense counsel timely filed a motion for new trial on February 10, 2005, claiming that the verdict was against the overwhelming weight of the evidence. However, the circuit court never ruled on the motion. After Williams was taken back into custody, she retained new counsel and filed a motion for trial transcript on February 27, 2007, in order that she might proceed with her previously-filed motion for a new trial. On April 16, 2007, the circuit court entered an order requiring the court reporter to produce the trial transcript. Williams then filed an amended motion for a new trial on June 18, 2007, adding that the circuit court erred in granting two jury instructions over the defense’s objection: an “accomplice” instruction and a “flight” instruction. The circuit court denied Williams’s motion on August 2, 2007.

JURISDICTION

¶ 6. On February 1, 2008, Williams filed a pro se notice of appeal. Mississippi Rule of Appellate Procedure 4(a) states that a notice of appeal “shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” As Williams’s notice of appeal was filed three years after the entry of the court’s February 3, 2005, order, the Mississippi Supreme Court issued a “Show Cause Notice” on April 4, 2008, requesting that Williams show cause why her untimely appeal should not be dismissed. Williams filed her show cause notice, and on August 6, 2008, this Court entered an order stating that it was uncertain, based on the limited record, whether Williams’s appeal warranted suspension of the rules under Mississippi Rule of Appellate Procedure 2(c). Therefore, the appeal was allowed to proceed on its merits. On February 2, 2009, the State filed a motion to dismiss the appeal. This Court found that the State’s motion should “be passed for consideration,” along with the merits of Williams’s appeal, based upon the previous order. As the appellate record is now complete, we will now consider whether Williams’s untimely appeal merits a suspension of the rules.

¶ 7. First, we note that Williams’s June 18, 2007, amended motion for a new trial effectively superseded her February 10, 2005, motion for a new trial, since that motion was still pending before the court. Therefore, the circuit court’s denial of Williams’s amended motion for a new trial on August 2, 2007, determines the starting date for the purposes of determining whether the appeal was untimely filed. As Williams filed her notice of appeal approximately six months after the circuit court denied her amended motion for a new trial under Rule 4(a), the notice of appeal was untimely, leaving this Court without jurisdiction to consider Williams’s appeal.

¶ 8. However, under Rule 2(c) of the Mississippi Rules of Appellate Procedure, this Court may suspend the thirty-day requirement of Rule 4(a) and allow an out-of-time appeal in a criminal case for “good cause shown” and “in the interest of expediting decision.” See McGruder v. State, 886 So.2d 1, 2(¶ 4) (Miss.2003) (citation omitted) (‘We may suspend Rules 2 and 4 ‘when justice demands’ to allow an out-of-time appeal in criminal cases.”). “The party seeking an out-of-time appeal carries the burden of persuasion regarding the lack of a timely notice.” Andrews v. State, 932 So.2d 61, 62(¶ 5) (Miss.Ct.App.2006) (citations omitted). Williams, in her show cause notice, claimed that she was financially unable to retain counsel and was not aware of the appellate rules. We do not find that this constitutes good cause. An out-of-time appeal may be granted in cases where the prisoner, “through no fault of his own[,] is effectively denied his right to perfect his appeal within the time prescribed by law by the acts of his attorney or the trial court.” Dorsey v. State, 986 So.2d 1080, 1084(¶ 12) (Miss.Ct.App.2008) (citation omitted). However, a “[pjetitioner’s pro se status and ignorance of the law alone are wholly insufficient to establish cause.” Gardner v. State, 848 So.2d 900, 901(¶ 5) (Miss.Ct.App.2003) (citing Culberson v. State, 612 So.2d 342, 346 (Miss.1992)).

¶ 9. Moreover, Williams is also procedurally barred from raising her claim that her sentence was illegal as she failed to object to her sentence at trial. See Fulks v. State, 944 So.2d 79, 85(¶ 14) (Miss.Ct.App.2006) (a defendant who makes no objection at trial to his sentence cannot raise this allegation initially on appeal). However, notwithstanding the procedural bar or Williams’s failure to show good cause, dismissing this appeal for lack of jurisdiction would most likely result in a motion for post-conviction relief citing not only that her sentence was unconstitutional and illegal—the issue before us in this appeal—but also ineffective assistance of counsel for failure to object to her sentence. Therefore, “in the interest of expediting decision” pursuant to Rule 2(c), we will suspend the rules and review Williams’s out-of-time appeal on the merits.

¶ 10. Our basis for allowing this out-of-time appeal is to expedite a decision, as the dismissal of this appeal would result in a judicially-inefficient petition for post-conviction relief, consuming further trial and appellate court resources. The dissent argues that our reasoning is “faulty” as Williams is “likely” to file a motion for post-conviction relief anyway, and that it is irrelevant whether we address the substance of the appeal because Williams’s post-conviction relief motion will be procedurally barred. However, the issue may not be as straightforward as the dissent contends. The right to be free from an illegal sentence is a fundamental constitutional right; therefore, a claim of illegal sentence cannot be procedurally barred under the Mississippi Uniform Post-Conviction Collateral Relief Act. See McBride v. State, 914 So.2d 260, 263(¶ 10) (Miss.Ct.App.2005). The legality of Williams’s sentence has been fully briefed and considered by the entire Court; consequently, we see no reason to decline jurisdiction, thus requiring a hard-working, overburdened trial judge to review either this issue or the issue of the procedural bar to a motion for post-conviction relief merely to have the issues(s) come back to this Court to be re-briefed, reconsidered, and rewritten. Rather than “rewarding” Williams’s shortcomings, this Court’s decision to review the merits of her appeal is based upon judicial economy.

I. Whether Williams was incorrectly sentenced as a habitual offender.

¶ 11. Williams claims that she should not have been charged as a habitual offender as the sentences for her two previous convictions were served concurrently. Therefore, she was only in custody for one year. The amendment to Williams’s indictment charged her under Mississippi Code Annotated section 99-19-81 (Rev. 2000), which states:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

(Emphasis added). This statute merely requires that the defendant be sentenced to one year or more for each crime. It does not require that the individual be incarcerated under his imposed sentences to obtain habitual offender status. Davis v. State, 5 So.3d 435, 441(¶ 14) (Miss.Ct.App.2008); see also Green v. State, 802 So.2d 181, 183(¶ 14) (Miss.Ct.App.2001) (“Service of sentence through actual incarceration is not mandatory when considering habitual offender status under [section] 99-19-81”) (citation omitted). Williams was convicted and sentenced for two separate crimes prior to her February 3, 2005, conviction: felony shoplifting in 1995 and possession of marijuana in 1999. Thus, the felonies were “separate incidents,” which occurred “at different times,” and each carried a sentence of at least one year. Thus, the fact that Williams was only incarcerated for one year while serving her concurrent sentences does not afford her relief from habitual offender status under section 99-19-81.

II. Whether Williams’s sentence constituted cruel and unusual punishment in violation of the Eighth Amendment.

¶ 12. Williams also claims that her sentence was unconstitutional as it exceeded the maximum sentence allowed by law. A sentence may be subject to attack if it is “‘grossly disproportionate’ to the crime committed,” as this is a violation of “the Eighth Amendment prohibition of cruel and unusual punishment.” Minor v. State, 992 So.2d 664, 666(¶ 6) (Miss.Ct.App.2008) (quoting Lewis v. State, 905 So.2d 729, 737(¶ 26) (Miss.Ct.App.2004)). However, the circuit court has complete discretion in imposing a sentence, and the sentence will “not [be] subject to appellate review if it is within the limits prescribed by statute.” Id. Consequently, “a sentence that does not exceed the maximum period usually will not be disturbed on appeal.” Fannings v. State, 997 So.2d 953, 966(¶ 42) (Miss.Ct.App.2008) (citing Ford v. State, 975 So.2d 859, 869(¶ 39) (Miss.2008)).

¶ 13. Williams was indicted under Mississippi Code Annotated section 97-23-93(1) which states that:

Any person who shall wilfully and unlawfully take possession of any merchandise owned or held by and offered or displayed for sale by any merchant, store or other mercantile establishment with the intention and purpose of converting such merchandise to his own use without paying the merchant’s stated price therefor shall be guilty of the crime of shoplifting and, upon conviction, shall be punished as is provided in this section.

Further, as Williams was apprehended with more than $500 in merchandise, she was convicted under subsection (7) of section 97-23-93 which states that: “A person convicted of shoplifting merchandise for which the merchant’s stated price exceeds Five Hundred Dollars ($500.00) shall be guilty of a felony and, upon conviction, punished as provided in Section 97-17-41 for the offense of grand larceny.” (Emphasis added). Williams has also argued, in a separate motion received by this Court on November 6, 2009, that she should not have been sentenced under subsection (7) of section 97-23-93 for grand larceny. However, it is clear from the evidence that the merchandise was valued at more than $500. Therefore, as Williams was a habitual offender, the circuit court was required under section 99-19-81 to impose the maximum sentence for grand larceny, which is ten years in the custody of the MDOC, and a fine of $10,000. See Miss.Code Ann. § 97-17-41 (Supp.2003). This is exactly the sentence that Williams received.

¶ 14. The sentence imposed by the circuit court did not exceed the statutory maximum, and we find no violation of the Eighth Amendment to the United States Constitution.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF FELONY SHOPLIFTING AND SENTENCE AS A HABITUAL OFFENDER OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION AND TO PAY A FINE OF $10,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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

ROBERTS, J.,

dissenting.

¶ 16. Although affirmance of the conviction, by the majority, may have the same practical effect, I write separately to emphasize that I would dismiss this appeal for lack of jurisdiction. It is well settled that: “We may suspend [Mississippi Rules of Appellate Procedure] 2 and 4 ‘when justice demands’ to allow an out-of-time appeal in criminal cases.” McGruder v. State, 886 So.2d 1, 2(¶4) (Miss.2003) (citing Fair v. State, 571 So.2d 965, 966 (Miss.1990)) (emphasis added). However, it is when a defendant is effectively denied his or her right to perfect a timely appeal through no fault of his or her own, that the appellate court is motivated to suspend or relax the rules of appellate procedure. Id. (citing Jones v. State, 355 So.2d 89, 90 (Miss.1978)). This is definitely not the situation in the instant appeal.

¶ 17. The majority has amply stated the procedural facts of this case, but I note, again, that Bridgit Williams chose to flee the state in the middle of her trial, and she had to be extradited from Tennessee eighteen months later. Williams made a calculated decision to flee from justice. Furthermore, the record reflects that this was not the first time she had chosen to take flight from legal proceedings or restraint. In 1998, Williams violated the terms of her probation by leaving the state and had to be extradited from Tennessee to Warren County, Mississippi for a probation-violation hearing. As evidenced by Williams’s habitual-offender status and the prior underlying proceedings in Warren County, this was not her first legal rodeo.

¶ 18. At trial, Williams was represented by a public defender, who in Williams’s absence, was diligent to file a motion for a new trial after her conviction. After her extradition, Williams hired private counsel to present her amended motion for a new trial, and the record does not reflect an order stating that Williams’s retained attorney was ever relieved of his representation of Williams. Nevertheless, six months after the trial judge dismissed Williams’s motion for a new trial, Williams filed a pro se notice of appeal. Williams was five months late in filing her appeal. Although Williams claims her appeal was untimely filed because she did not have the means to afford an attorney and she was ignorant of the appellate rules, Williams did not request in forma pauperis status until March 28, 2008, approximately eight months after her amended motion for a new trial was denied. In forma pauperis status was granted, and Rankin County paid her appeal costs. Yet, the record does not reflect a request by Williams to the trial court for court-appointed counsel to pursue her appeal. Williams’s claimed ignorance is unpersuasive, particularly in light of the fact that she is no stranger to the legal system. Without a doubt, the majority correctly recognizes that Williams has not shown good cause for her untimely filed appeal.

¶ 19. However, in spite of this recognition, the majority chooses to forgive or ignore this fact and addresses Williams’s appeal on the merits out of concern that she may pursue a post-conviction-relief action. I suggest that this is faulty reasoning. Whether we address the merits of Williams’s appeal or not, she is likely to file a post-conviction-relief motion because this is her right, if she can show that there are objections, defenses, claims, questions, issues, or errors which in practical reality could not have been or should not have been raised at trial or on direct appeal. Miss.Code Ann. § 99-39-3 (Rev.2007). Also, whether we permit this untimely filed appeal or not is irrelevant to any possible future post-convietion-relief motion Williams may file. It is irrelevant because, if she could have raised such issues in a timely filed appeal, but by her own fault failed to file a timely appeal, the procedural bar stands to prevent them from being raised in a post-eonviction-re-lief proceeding. Ultimately, the decision to allow this appeal should be based solely upon the facts before us in the record.

¶ 20. With the caveat of finding “good cause” for an untimely filed appeal in criminal proceedings, “Rule 2(a) reflects the long-standing rule in this state that the failure to file a timely appeal leaves this Court without jurisdiction to consider the case.” Byrd v. Biloxi Reg’l Med. Ctr., 722 So.2d 166, 168(¶ 10) (Miss.Ct.App.1998) (quoting Bank of Edwards v. Cassity Auto Sales, Inc., 599 So.2d 579, 582 (Miss.1992)). In my considered judgment, accepting this appeal on the merits without any showing of good cause is tantamount to abolishing the requirements of Mississippi Rule of Appellate Procedure 2. Certainly, with the facts in this case, justice does not demand relaxation of our thirty-day rule. As we are without any appellate jurisdiction based on the facts before us, I would grant the State’s motion to dismiss this appeal.

MYERS, P.J., GRIFFIS AND MAXWELL, JJ., JOIN THIS OPINION.

      . Miss.Code Ann. § 97-23-93(7) (Rev.2006).

      . In Jefferson v. State, 807 So.2d 1222, 1227(11 18) (Miss.2002), the Mississippi Supreme Court ruled that a court may try a defendant in absentia, if the defendant has willfully, voluntarily, and deliberately taken actions to avoid trial.

      . Uniform Rule of Circuit and County Court 10.05 states that "[a] motion for a new trial must be made within ten days of the entry of judgment. The trial judge may hear and determine a motion for new trial at any time and in any county or judicial district within the trial judge’s jurisdiction.”