author: WILSON, J., FOR THE COURT:

text:
    Deonna STROUD, individually and for and on behalf of David Stroud, a non compos mentis, Appellant v. PROGRESSIVE GULF INSURANCE COMPANY, Virginia M. Conn, and Jennifer Guzman, Appellees
    NO. 2016-CA-00750-COA
    Court of Appeals of Mississippi.
    September 19, 2017 Rehearing Denied March 13, 2018
    ATTORNEY FOR APPELLANT: WAYNE E. FERRELL JR.
    ATTORNEYS FOR APPELLEES: GINNY Y. KENNEDY, WADE G. MANOR, CECIL MAISON HEIDELBERG
    BEFORE GRIFFIS, P.J., CARLTON, WILSON AND GREENLEE, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. David Stroud was engaged in the business of hauling miscellaneous items and towing vehicles. In April 2010, either David or his wife, Deonna, contacted the Conn Insurance Agency, owned by Virginia Conn, to obtain "cargo coverage" required for David's business. The Conn Agency sells Allstate insurance and has an Allstate sign, and the Strouds had a policy with Allstate; however, Allstate did not offer "cargo coverage" of the type they requested, so an employee of the Conn Agency, Jennifer Guzman, obtained a policy through Progressive Gulf Insurance Company instead. In June 2010, David picked up a trailer in Ohio to deliver to a customer in Montana. Somewhere between Ohio and Montana, the trailer collided with a tree limb, and David's cargo was damaged. David submitted a claim to Progressive, but on July 15, 2010, Progressive notified David and his attorney that it had denied his claim, which eventually gave rise to the instant lawsuit.

¶ 2. Although the applicable statute of limitations is three years, Deonna filed suit, purportedly on behalf of David, three years and seventeen days after Progressive denied coverage. Deonna alleges that the statute of limitations was tolled because David has been non compos mentis since 2003 as a result of a fall and injuries that he sustained that year. The circuit court granted summary judgment for all defendants because it concluded that there was no genuine issue of material fact and that the statute of limitations had run. We likewise conclude that the defendants were entitled to judgment as a matter of law based on the statute of limitations. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. In April 2010, David or Deonna (see supra n.1) contacted the Conn Agency to obtain "mandatory cargo coverage" for David's "hauling business." David was engaged in the business of hauling "miscellaneous items" and towing vehicles in a truck and trailer. David or Deonna spoke to Guzman. David had Allstate insurance, but Guzman stated that Allstate did not offer the requested coverage. Guzman sent the Strouds applications for insurance and later told them that she had obtained the requested coverage through Progressive. A Progressive policy was issued to David as the named insured.

¶ 4. In June 2010, David was hauling cargo of some sort from Ohio to a customer in Montana. As he was driving, the trailer he was hauling came into contact with a tree branch, and its cargo was damaged. He reported the collision to Conn/Guzman and Progressive, and Progressive investigated David's claim. On July 15, 2010, Progressive informed David that his claim was denied based on an exclusion in the policy.

¶ 5. On August 1, 2013, Deonna, purportedly on behalf of David, filed suit in the Jackson County Circuit Court against Progressive, Allstate, Conn, and Guzman. Deonna alleged that she filed the suit on behalf of David because he was a person non compos mentis, i.e., of unsound mind. The complaint demanded actual damages of $500,000 and punitive damages of $2,000,000 based on allegations that the defendants negligently or willfully failed to obtain the requested coverage and denied the claim in bad faith. Each defendant's answer asserted the statute of limitations as a defense.

¶ 6. On February 14, 2014, Progressive filed a motion for summary judgment arguing that the applicable three-year statute of limitations, Miss. Code Ann. § 15-1-49 (Rev. 2012), ran on July 15, 2013, before the Strouds filed their complaint. Allstate subsequently filed a motion for summary judgment based on the same statute of limitations. Allstate also argued that it was entitled to summary judgment because it did not issue the policy and had no connection to it. Conn and Guzman joined Progressive's and Allstate's motions.

¶ 7. In response, the Strouds did not dispute that section 15-1-49 provides the applicable statute of limitations. Nor did they dispute that their complaint was filed more than three years after Progressive denied their claim. Rather, they argued that Mississippi Code Annotated section 15-1-59 (Rev. 2012) tolled the statute of limitations because David was a person "under the disability of ... unsoundness of mind" (i.e., non compos mentis) at all times relevant to his claim. They alleged that David's non compos mentis status arose from head and brain injuries that he suffered in 2003 when he fell approximately thirty feet from the roof of a house.

¶ 8. At a hearing on May 29, 2014, the circuit judge sua sponte raised the issue of Deonna's standing to file suit on David's behalf given that she had never been appointed as his conservator. Following the hearing, the judge entered an order staying the case to allow Deonna to initiate proceedings to be appointed as David's conservator.

¶ 9. Deonna petitioned the Walthall County Chancery Court to be appointed as David's conservator. Her petition attached affidavits from two physicians, and at a brief hearing on the petition, she and David both testified that she should be appointed as his conservator. On October 6, 2014, the chancery court entered an order appointing Deonna as conservator of David's person and estate. The Strouds then filed a motion in circuit court for partial summary judgment on the statute of limitations issue.

¶ 10. On March 3, 2016, the circuit court held a hearing on the motions for summary judgment and partial summary judgment. The Strouds relied on the affidavits of Deonna and two physicians and the petition, order, and transcript in the conservatorship proceeding. The defendants argued that the Strouds failed to present competent evidence that David was non compos mentis at any time between July 15, 2010, and August 1, 2013.

¶ 11. At the conclusion of the hearing, the circuit judge announced from the bench that he would grant all defendants' motions for summary judgment, and he subsequently entered orders to that effect. The court ruled that the statute of limitations had run as to all defendants because the Strouds could not establish David's lack of capacity so as to toll the statute of limitations. The court also ruled that Allstate was entitled to summary judgment because the relevant insurance contract was not with Allstate. Deonna filed a timely notice of appeal as to Progressive, Conn, and Guzman. She did not appeal as to Allstate.

ANALYSIS

¶ 12. The basic issue in this appeal, which we review de novo, is whether the defendants were entitled to judgment as a matter of law because there was no genuine issue of material fact as to whether David was a person of unsound mind during the limitations period. We also address Deonna's argument that the circuit judge erred by relying on the fact that David had a Mississippi driver's license during the relevant period. Finally, we address Deonna's additional argument that David's claims against Conn and Guzman are not barred by the statute of limitations. Deonna argues that Conn and Guzman "never denied coverage," so David's claims against them did not accrue until they answered the complaint.

I. There is no genuine issue of material fact as to whether David was "under the disability of ... unsoundness of mind" during the limitations period.

¶ 13. We review the circuit court's order granting summary judgment de novo. Rockwell v. Preferred Risk Mut. Ins. , 710 So.2d 388, 389 (¶ 4) (Miss. 1998). Summary "judgment ... shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c). "The focal point of our standard for summary judgment is on material facts," which means those facts "that matter[ ] in an outcome determinative sense ." Simmons v. Thompson Mach. of Miss. Inc. , 631 So.2d 798, 801 (Miss. 1994). "The existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact." Sanders v. Advanced Neuromodulation Sys. Inc. , 44 So.3d 960, 965 (¶ 11) (Miss. 2010) (quoting Moss v. Batesville Casket Co. , 935 So.2d 393, 399 (¶ 17) (Miss. 2006) ); see also Summers ex rel. Dawson v. St. Andrew's Episcopal Sch. Inc. , 759 So.2d 1203, 1208 (¶ 12) (Miss. 2000) ("Numerous, immaterial facts may be controverted, but only those that affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." (Quotation marks omitted)).

¶ 14. We view the evidence in the light most favorable to the nonmoving party. Buckley v. Singing River Hosp. , 146 So.3d 365, 369 (¶ 9) (Miss. Ct. App. 2013) (citing Smith v. Chhabra , 54 So.3d 877, 880 (¶ 11) (Miss. Ct. App. 2011) ). However, the nonmoving "party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." M.R.C.P. 56(e).

¶ 15. When, as in this case, "a defendant pleads a statute of limitations as a defense and shows that the suit is thereby barred, he has met this burden of proof. Where the plaintiff asserts that his case is not barred by the statute of limitations, the burden is on him to show some legal or equitable basis for avoiding such period of limitations." Hall v. Dillard , 739 So.2d 383, 387-88 (¶ 19) (Miss. Ct. App. 1999) (citing Gulf Nat'l Bank v. King , 362 So.2d 1253, 1255 (Miss. 1978) ); accord, e.g. , Sullivan v. Trustmark Nat'l Bank , 653 So.2d 930, 931-32 (Miss. 1995) ; Archer v. Nissan Motor Acceptance Corp. , 633 F.Supp.2d 259, 265 (S.D. Miss. 2007), aff'd , 550 F.3d 506 (5th Cir. 2008).

¶ 16. In addition, under Mississippi law, "in order to prove that one is non compos mentis, it must be proven by clear and convincing evidence, rather than by a preponderance of the evidence, and must be proven by the proponent of that position." Morgan v. Citizens Bank , 912 So.2d 1133, 1136 (¶ 13) (Miss. Ct. App. 2005) (citing Smith v. Smith , 574 So.2d 644, 652 (Miss. 1990) ). When, as in this case, the nonmoving party must prove a material fact by clear and convincing evidence, the court must take that into account when ruling on a motion for summary judgment. See Haygood v. First Nat'l Bank of New Albany , 517 So.2d 553, 555-56 (Miss. 1987) (following Anderson v. Liberty Lobby Inc. , 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "[T]he appropriate summary judgment question [is] whether the evidence in the record could support a reasonable jury finding [for] the plaintiff [on the material issue of fact] by clear and convincing evidence ...." Id. at 556 (quoting Anderson , 477 U.S. at 255-56, 106 S.Ct. 2505 ); see also Towner v. Moore ex rel. Quitman Cty. Sch. Dist. , 604 So.2d 1093, 1098 (Miss. 1992) ("[W]e have long since accommodated our summary judgment process to the 'clear and convincing' quantum of proof requirement.").

¶ 17. Applying these standards, we address de novo the question whether the evidence presented by the Strouds was sufficient to create a genuine issue of material fact as to whether the statute of limitations was tolled during the relevant limitations period. There is no dispute that the Strouds' claims are subject to a three-year statute of limitations, Miss. Code Ann. § 15-1-49, and that the Strouds filed suit more than three years after Progressive denied coverage. The only real issue on appeal concerns the application of section 15-1-59, the "savings statute," which provides:

If any person entitled to bring any of the personal actions mentioned shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the actions within the times in this chapter respectively limited, after his disability shall be removed as provided by law. However, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.

¶ 18. "The purpose of the savings statute is to protect the legal rights of those who are unable to assert their own rights due to disability." Rockwell , 710 So.2d at 391 (¶ 11). "The Mississippi Supreme Court addressed the law regarding mental competency and statutes of limitation in Shippers Express v. Chapman , 364 So.2d 1097, 1100 (Miss. 1978) [.]" Brumfield v. Lowe , 744 So.2d 383, 387 (¶ 20) (Miss. Ct. App. 1999). "The test as to whether the claimant is so 'mentally incompetent' as to toll the running of the statute of limitations, is this: Is his mind so unsound, or is he so weak in mind, or so imbecile, no matter from what cause, that he cannot manage the ordinary affairs of life?" Id. (quoting Shippers Express , 364 So.2d at 1000 ); accord USF&G Co. v. Conservatorship of Melson , 809 So.2d 647, 653 (¶ 23) (Miss. 2002) ; Reeg v. Keel , 174 So.3d 309, 312 (¶ 9) (Miss. Ct. App. 2015).

¶ 19. In opposition to summary judgment, the Strouds offered three affidavits from doctors and one medical evaluation report. Two of the affidavits are from Dr. Howard Katz, who states that he is "board certified in brain injury, psychiatry and spinal cord injury." Dr. Katz's first affidavit-which was signed August 26, 2014, and submitted in the conservatorship proceeding-contains only one paragraph regarding David's condition, which states as follows:

Mr. Stroud was involved in a serious accident in October 2003, when he fell approximately 30 feet; fractured multiple bones ; and suffered substantial injuries to his head and brain. I am of the opinion that as a result of the head and brain injuries Mr. Stroud has been left with poor concentration, poor memory, word finding difficulty and trouble with his focus and concentration which are consistent with brain injury. I am of the opinion that David Stroud is not competent to handle his affairs, is a non compos mentis, and has not been competent to handle his affairs since his accident in October 2003. I believe that Mr. Stroud's inability to manage his affairs is so severe that a Conservator should be considered to manage his estate.

¶ 20. Dr. Katz's second affidavit (signed April 22, 2015) is similar and also contains only one paragraph regarding David's condition, which states as follows:

It is my opinion that David Stroud sustained a severe brain injury in his fall in Virginia on or about October 11, 2003. Based upon my review of the medical records, the report from Dr. Mark Webb, and my own evaluation of Doug [sic] Stroud, I am of the opinion that David Stroud is not presently able and has not been competent to manage his affairs since October 11, 2003, the date he fell approximately 40 feet on his head causing substantial brain injury and damages.

¶ 21. The third affidavit and the medical evaluation report are from Dr. Mark Webb, a board certified neuropsychiatrist. Dr. Webb's April 16, 2014 report notes that David "has never had any psychiatric or psychological treatment." The report subsequently provides the following evaluation and conclusions regarding David's mental status:

Mr. Stroud is an alert and cooperative, logical and coherent, extremely forgetful white male who exhibits a lot of anxiety. His speech and psychomotor activity are increased. His speech rate mid volume are increased. He denies any hallucinations, delusions, past or present homicidal or suicidal ideation. Insight and judgment are good with his memory and concentration poor. He has great difficulty with recall and has trouble remembering things. He also has a lot of word finding difficulty and trouble with numbers. He has extremely poor short term memory. He cannot remember certain things in our interview that were talked about earlier in the interview. ... He does not describe any manic [or] hypomanic ... episodes.
....
Mr. Stroud went through a very difficult incident in October 2003. He fell a long way and fractured multiple bones. He also suffered whiplash injury to his head and brain. As a result of this he has been left with poor concentration, poor memory, word finding difficulty and trouble with his focus and concentration, which is consistent with Mild Neurocognitive Disorder.
Mr. Stroud is also suffering from Posttraumatic Stress Disorder. He went through a very traumatic incident and has been left with nightmares, fear, intrusive thoughts, detached emotions, anger, and irritability.
I made Mr. Stroud completely aware of the purpose and ramifications of his interview and he consents to both.
.... Mr. Stroud could benefit from treatment with a psychiatrist to help his PTSD symptoms subside and a neuropsychiatrist and neuropsychologist to help with his Mild Neurocognitive Disorder. He could also benefit from medication to help with both of the illnesses. As a result of both illnesses, Mr. Stroud is disabled from returning to work.

¶ 22. Dr. Webb's September 2014 affidavit, which was submitted in the conservatorship proceeding, is similar in substance to his report. Much like Dr. Katz's affidavit, it concludes: "I am of the opinion that David Stroud is not competent to handle his affairs and has not been competent to handle his affairs since his accident in October 2003. I believe that Mr. Stroud's inability to manage his affairs is so severe that a Conservator should be considered to manage his estate."

¶ 23. The record also includes an affidavit signed by Deonna that states in relevant part: "Ever since my husband's accident in October 2003, I have had to manage his business for him, as he is unable to do so on his own because of his extreme inability to remember, both long and short term, and because of his inability to concentrate." The Strouds also rely on the order of the chancery court appointing Deonna as David's conservator and the transcript of the hearing in the chancery court. The chancellor granted Deonna's unopposed petition based on the affidavits discussed above, following a brief hearing during which David expressly consented to the conservatorship.

¶ 24. The appellees argue that the Strouds' evidence is insufficient to create a genuine issue of material fact. They note that there is no evidence that Dr. Webb or Dr. Katz saw David prior to April 2014-which was months after the statute of limitations had run and after the defendants had already moved for summary judgment. The defendants also emphasize that the underlying claim arose out of David's "hauling business" and that David was in the process of hauling cargo from Ohio to Montana when the underlying insurance claim arose. The defendants further note that David spoke to an adjuster on the day of the incident and had already retained an attorney to assist with the claim by the time it was denied in July 2010. They argue that on these facts no reasonable jury could find by clear and convincing evidence that David's mind was so unsound that he was unable to manage the ordinary affairs of life for a decade prior to the commencement of the lawsuit.

¶ 25. We agree with the circuit court that the affidavits and other evidence submitted by the Strouds fail to create a genuine issue of material fact. The doctors' affidavits contain broad and conclusory assertions that David was "non compos mentis" and incompetent "to handle his affairs." The doctors also assert that David's incompetence had persisted for more than a decade before they ever evaluated him. However, the doctors' affidavits are devoid of facts to support their opinions on what is ultimately an issue of law. For instance, Dr. Webb's report states that David was "alert and cooperative, logical and coherent," and that his "[i]nsight and judgment are good[.]" Dr. Webb also noted that David had "never had any psychiatric or psychological treatment." The issues that Dr. Webb raised were that David was "extremely forgetful," experienced "a lot of anxiety," had "poor" concentration, and "also has a lot of word finding difficulty and trouble with numbers." Dr. Webb ultimately diagnosed David with "Mild Neurocognitive Disorder" and PTSD.

¶ 26. The issues raised by the doctors do not create a genuine issue of material fact as to whether David's condition satisfies the "test as to whether [he] is so 'mentally incompetent' as to toll the running of the statute of limitations," which, again, "is this: Is his mind so unsound, or is he so weak in mind, or so imbecile, no matter from what cause, that he cannot manage the ordinary affairs of life?" Brumfield , 744 So.2d at 387 (¶ 20) (quoting Shippers Express , 364 So.2d at 1000 ). There are no facts in the record to show that David's difficulties with memory and concentration rendered him unable to manage the ordinary affairs of life. Indeed, the facts alleged in his own complaint refute the notion. The amended complaint states that "David Stroud contacted [the Conn agency] to request mandatory cargo coverage for David Stroud's business which included hauling miscellaneous items and towing vehicles." David further alleges that his claim arose while he was engaged in his hauling business-and transporting cargo from Ohio to Montana. The record also indicates that an attorney was already assisting David with this claim by the time it was denied in July 2010. Under the circumstances, the circuit court correctly concluded that no reasonable jury could find by clear and convincing evidence that David was of such an unsound mind that he was incapable of managing the ordinary affairs of his life.

¶ 27. The defendants also raise substantial questions about the doctors' ability to opine about David's competence and mental status years before they ever met him. Cf. Buckley , 146 So.3d at 374-75 (¶¶ 27-30) (holding that an expert opinion based solely on patient-provided history provided years after the injury was insufficient to establish causation). Dr. Webb and Dr. Katz recite that they reviewed David's medical records, but they do not explain how those records establish that he had been incompetent for a decade. The doctors' opinions that David has been of unsound mind and incompetent to manage his affairs for ten years are insufficient to create a genuine issue of fact because they are conclusory and unsupported by facts. "A conclusory expert affidavit that fails to explain the underlying 'how, when, and why' is insufficient to withstand summary judgment." Gray v. Dimitriades , 211 So.3d 738, 745 (¶ 29) (Miss. Ct. App. 2016), cert. denied , 204 So.3d 288 (Miss. 2016) (quoting Perez v. Univ. of Miss. Med. Ctr. , 75 So.3d 609, 611-12 (¶¶ 13, 16) (Miss. Ct. App. 2011) ); accord Dalton v. Cellular S. Inc. , 20 So.3d 1227, 1234 (¶ 16) (Miss. 2009). Expert opinions must be based on facts, not the mere "ipse dixit of the expert." Watts v. Radiator Specialty Co. , 990 So.2d 143, 149 (¶ 17) (Miss. 2008) (quoting Gen. Elec. Co. v. Joiner , 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) ).

¶ 28. The only relevant factual claims supported by competent evidence are that David suffered serious injuries in a fall a decade earlier; that Deonna manages his financial affairs; that he has difficulty concentrating and remembering things; and that he has been diagnosed with PTSD and Mild Neurocognitive Disorder, although he has never required any psychological or psychiatric treatment. However, it is also undisputed that David owned and operated his own commercial hauling business and that his underlying insurance claim arose from his work hauling cargo from Ohio to Montana. On these facts, the circuit court correctly ruled that there was no genuine issue of fact. No reasonable jury could find by clear and convincing evidence that David was disabled due to unsound mind during the relevant period. See Vick v. Brandon HMA LLC , 167 So.3d 259, 262-63 (¶¶ 16-18) (Miss. Ct. App. 2015) (holding that the statute of limitations was not tolled because although the plaintiff relied on her family to manage her finances and for transportation, the record showed that she had a job, was married, participated in church activities, made important healthcare decisions, and participated in the litigation); Brumfield , 744 So.2d at 387-88 (¶ 22) (holding that the statute of limitations was not tolled because although the plaintiff received Social Security disability based on his schizophrenia, he was married, had children, managed his own money, hired an attorney, and testified coherently).

¶ 29. The Strouds' reliance on the order appointing Deonna as David's conservator is also unavailing. To begin with, the order addressed David's status in 2014, after the statute of limitations had run. In addition, the appointment of a conservator does not necessarily or in all cases establish that the person is wholly incompetent, of unsound mind, and unable to manage the ordinary affairs of life. See Harvey v. Meador , 459 So.2d 288, 291-92 (Miss. 1984). Finally, the defendants were not parties to the conservatorship proceeding and clearly are not bound or estopped by the order granting Deonna's unopposed petition. See Weaver v. City of Pascagoula , 527 So.2d 651, 652 (Miss. 1988) (holding that collateral estoppel cannot be asserted against a party who was "neither party nor privy to the prior action").

II. The circuit court's reliance on David's possession of a driver's license is immaterial and does not require reversal.

¶ 30. At the hearing on the motions for summary judgment, the circuit judge asked David's attorney whether David had a valid driver's license at the time of the collision that gave rise to his claim, and the attorney responded affirmatively. In his ruling from the bench, the circuit judge noted that Mississippi law provides that no driver's license may be issued to any person whose mental disability prevents him from operating a motor vehicle safely and to any person adjudged to be under a mental disability who has not been restored to mental competency. See Miss. Code Ann. § 63-1-9(1)(d)-(e) (Supp. 2016). This was not the sole basis of the court's ruling, nor was it referenced in the court's written order. Nonetheless, the Strouds argue that by referencing the statute, the court relied on facts outside the record and granted summary judgment based on a "defense" that the defendants never pled.

¶ 31. On appeal from an order granting summary judgment, we will affirm if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. We review the record de novo without deference to the circuit court's reasoning or conclusions. Accordingly, this Court's decision on appeal does not turn on or require approval or disapproval of the precise reasoning that the circuit court gave for its ruling. This Court "may affirm a [circuit] court if the correct result is reached, even if the [circuit] court reached the [correct] result for the wrong reasons." Methodist Hosp. of Hattiesburg Inc. v. Richardson , 909 So.2d 1066, 1070 (¶ 7) (Miss. 2005). As discussed in the preceding section, based on our de novo review of the record, there is no genuine issue of material fact and the defendants are entitled to judgment as a matter of law. This is so regardless of whether David had a driver's license. Accordingly, the circuit court's reference to David's license is simply irrelevant.

III. Conn and Guzman were also entitled to summary judgment.

¶ 32. As noted above, the Strouds make an alternative argument that Conn and Guzman were not entitled to summary judgment because they "never denied coverage," so David's claims against them did not accrue until, "at the earliest," they answered the complaint and denied liability. The Strouds cite no legal authority in support of this argument.

¶ 33. In a case such as this, the law is clear that a claim that an insurance agent failed to procure the coverage requested by the insured accrues and the statute of limitations begins to run, at the very latest , when the insured receives notice of the denial of his claim. Oaks , 953 So.2d at 1083-84 (¶¶ 23-25) ; accord Bank of Commerce v. SouthGroup Ins. & Fin. Servs. LLC , 73 So.3d 1106, 1109-11 (¶¶ 17-23) (Miss. 2011). When the insured is denied the coverage that he allegedly requested, he is "on notice of a possible problem with the procurement and understanding of the terms of his insurance policy," and the statute of limitations begins to run (if some prior event has not already triggered it). Oaks , 953 So.2d at 1084 (¶ 24). That Conn and Guzman did not formally deny coverage is irrelevant. The insurer is responsible for making coverage determinations, not the agent who sold the policy. Progressive's denial of David's claim put the Strouds "on notice of a possible problem," so the statute of limitations on all their claims began to run on that date, at the very latest. Accordingly, Conn and Guzman were also entitled to summary judgment.

CONCLUSION

¶ 34. The circuit court correctly concluded that the Strouds failed to create a genuine issue of material fact as to whether David was "under the disability of ... unsoundness of mind" during the limitations period. Miss. Code Ann. § 15-1-59. Because the Strouds filed suit more than three years after Progressive denied their claim, their claims are barred by the statute of limitations. Accordingly, the circuit court properly granted summary judgment in favor of Progressive, Conn, and Guzman.

¶ 35. AFFIRMED.

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

      The amended complaint says that David contacted the Conn Agency. Deonna's subsequent affidavit says that she contacted the Conn Agency.

      The Strouds named "Jennifer Halford" as a defendant in their original and amended complaints. This defendant has repeatedly stated that her surname is Guzman, not Halford. The Strouds have never disputed this, so we will refer to the defendant as Guzman.

      See generally Oaks v. Sellers , 953 So.2d 1077 (Miss. 2007) (finding Mississippi Code Annotated section 15-1-49 applies to insured's claims alleging a failure to procure or misrepresentation of coverage); Young v. S. Farm Bureau Life Ins. , 592 So.2d 103, 107-08 (Miss. 1991) (finding section 15-1-49 applies to a claim for wrongful refusal to pay benefits under an insurance policy).

      We also note that Deonna alleges that she has been managing David's business and affairs since 2003-effectively acting as his conservator-and that she filed this suit in 2013, purportedly "on behalf of David ..., a non compos mentis," even though no court had appointed her as his conservator. Had Deonna actually been appointed as David's conservator in 2003-or at any time prior to August 2010-she clearly would have no tolling argument. See Conservatorship of Melson , 809 So.2d at 654 (¶ 27) ("Where a ... conservator has been court appointed ..., there is no logical or equitable reason to prevent the running of the statute of limitations inasmuch as that ... conservator is fully authorized to employ attorneys and bring actions on [the ward's] behalf.").


source: Caselaw Access Project

author: GREENLEE, J., FOR THE COURT:

license: Public Domain

text:
    Gary DILLON and Shawna Dillon, Appellants v. PICO, INC., Appellee
    NO. 2016-CA-01290-COA
    Court of Appeals of Mississippi.
    September 19, 2017 Rehearing Denied February 6, 2018 Certiorari Denied April 5, 2018
    ATTORNEYS FOR APPELLANTS: JAMES KENNETH WETZEL, GARNER JAMES WETZEL
    ATTORNEYS FOR APPELLEE: KATHRYN BREARD PLATT, MATTHEW MILES WILLIAMS
    EN BANC.
   GREENLEE, J., FOR THE COURT:

¶ 1. Gary Dillon (Dillon) was injured in a vehicle accident with a tractor-trailer driven by an employee of PiCo Inc. Dillon and his wife, Shawna, sued PiCo under a theory of respondeat superior. PiCo was granted summary judgment after Dillon failed to respond timely to PiCo's requests for admissions. On appeal, the Dillons argue the circuit court erred in (1) denying their motion to amend, withdraw, or "strike [the] tardiness of" Dillon's answers to the requests for admissions, (2) denying their motion for additional time to complete discovery, and (3) granting summary judgment. We find no error and affirm.

FACTS

¶ 2. On July 22, 2014, at approximately 5:30 a.m., Dillon rear-ended a tractor-trailer driven by PiCo employee David Rodgers. Dillon was paralyzed from the waist down as a result of the accident. On April 8, 2015, the Dillons filed suit in Hancock County Circuit Court against PiCo under the doctrine of respondeat superior. According to the Dillons' complaint, Dillon was driving north on Highway 603 in Hancock County, and Rodgers's tractor-trailer was on the shoulder, also facing north. Dillon claimed that without warning, Rodgers pulled onto the road directly in Dillon's path, causing the collision. Dillon alleged PiCo's and Rodgers's negligence caused his injuries, and Shawna alleged loss of consortium.

¶ 3. On May 7, 2015, PiCo filed its answer and counterclaim, alleging the lawsuit was frivolous and seeking attorney's fees and costs. Also on May 7, 2015, PiCo served combined discovery requests, including requests for admissions to Dillon. Dillon was required to answer the requests for admissions by June 8, 2015. See M.R.C.P. 36(a) (setting a thirty-day deadline to answer requests for admissions). When the deadline passed, the requests were deemed admitted by default. Id. On July 14, 2015, Dillon answered PiCo's requests for admissions, denying all substantive requests. Discovery proceeded for the next eight months, and a trial was set for August 22, 2016.

¶ 4. On April 1, 2016, PiCo moved for summary judgment, relying in part on the deemed admissions. PiCo also moved to compel Dillon to respond fully to interrogatories and requests, and PiCo submitted its supplemental interrogatory responses. On April 15, 2016, the Dillons responded to PiCo's summary-judgment motion by filing a Mississippi Rule of Civil Procedure 56(f) motion for additional time for discovery to defend against the summary-judgment motion, and for a scheduling order. Specifically, the Dillons sought additional time to obtain expert opinions, inspect PiCo's truck, present Dillon for a deposition, and obtain a ruling on the Dillons' motion to compel discovery. The motion did not mention the deemed admissions. PiCo responded in opposition, asserting that Dillon had not identified an expert, Dillon had not requested inspection of PiCo's truck, and PiCo was not required to take Dillon's deposition, especially in light of Dillon's admissions.

¶ 5. On May 12, 2016, the parties convened for a hearing on PiCo's summary-judgment motion. The Dillons brought forth their Rule 56(f) motion. The circuit court expressed great concern that Dillon had not timely answered the requests for admissions and had not moved to withdraw the matters deemed admitted by operation of law. The Dillons stated they would file a motion to withdraw the admissions the next day. Over PiCo's objection, the court granted additional time for motions practice under Mississippi Rule of Civil Procedure 78 and requested briefing on the admissions issue. The next day, PiCo filed a motion for reconsideration of the circuit court's decision. PiCo argued that it was an abuse of discretion for the court to "help" Dillon by allowing more time, when almost a year had passed and Dillon had failed to move to amend or withdraw the admissions. On May 16, 2016, the circuit court entered an order, stating that "on or before May 19, 2016, Dillon may file any additional motions relative to the pending Motion for Summary Judgment." The court again specifically requested that Dillon address the issue of the admissions.

¶ 6. On May 17, 2016, Dillon responded to PiCo's summary-judgment motion and moved to amend, withdraw, or strike the tardiness of the answers to the requests for admissions. The Dillons asserted that the answers to the requests for admissions were filed late because counsel had been unable to locate the Dillons. An affidavit from the Dillons' counsel, certifying as such, was attached to the motion. A hearing was held on all motions.

¶ 7. On August 11, 2016, the circuit court granted PiCo's motion to reconsider and PiCo's motion for summary judgment, and dismissed the action with prejudice. PiCo's motion for attorney's fees and costs was denied. By separate order, the circuit court denied as moot all other open motions, including the Dillons' motion to amend, withdraw, or strike the tardiness of the admissions and motion for time to complete discovery. The Dillons appeal, arguing the motion to amend, withdraw, or strike the tardiness of the admissions should have been granted, additional time was needed for discovery, and summary judgment was improper.

DISCUSSION

I. Requests for Admissions

¶ 8. Under Rule 36(a), a party may request in writing that another party admit the truth of certain matters. The requests for admissions are deemed admitted by default "unless, within thirty days after service of the request, ... the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney[.]" Young v. Smith , 67 So.3d 732, 738 (¶ 10) (Miss. 2011). " Rule 36... carries harsh sanctions for failure to comply therewith." Young , 67 So.3d at 738 (¶ 10). If the party fails to answer or object, the matter "is conclusively established unless the court on motion permits withdrawal or amendment of the admission." M.R.C.P. 36(b). The trial court has broad discretion in deciding whether an admission may be withdrawn or amended. Young , 67 So.3d at 738 (¶ 11).

¶ 9. "While Rule 36 is to be applied as written, it is not intended to be applied in Draconian fashion. If the [r]ule may sometimes seem harsh in its application, the harshness may be ameliorated by the trial court's power to grant amendments or withdrawals of admissions in proper circumstances." DeBlanc v. Stancil , 814 So.2d 796, 801-02 (¶ 26) (Miss. 2002). "[T]he proper procedural mechanism" for a party to seek the amendment or withdrawal of admissions "is to file a motion asking that the admissions be [amended or] withdrawn." Ross v. Wallack , 188 So.3d 597, 601 (¶ 11) (Miss. Ct. App. 2015). We review the denial of a motion to withdraw or amend admissions for abuse of discretion. Young , 67 So.3d at 738 (¶ 11).

¶ 10. PiCo served its requests for admissions on May 7, 2015. Dillon had thirty days, or until June 8, 2015, to serve written answers or objections, or to seek additional time to do so. M.R.C.P. 36(a). Once the deadline passed, the matters were deemed admitted by operation of law. Id. Without explanation or requesting additional time, Dillon served his written answers and objections on July 14, 2015-sixty-eight days after the requests for admissions were served. While the Dillons did eventually move to withdraw the admissions, they did not do so until May 17, 2016, nearly eleven months after the answers were due. Even then, they only did so at the prompting of the circuit court. Even after PiCo moved for summary judgment on April 1, 2016, relying heavily on the admissions, the Dillons did not move to amend or withdraw the admissions. Rather, the Dillons responded by filing a Rule 56(f) motion for additional time for discovery. The motion failed to mention the admissions. At the summary-judgment hearing, the circuit court expressed concern whether any dispute remained for trial, given the admissions, and asked the Dillons to address them. Only then did the Dillons file their motion to amend, withdraw, or strike the tardiness of the admissions-five days after the scheduled summary-judgment hearing; over a month and a half after PiCo's summary-judgment motion, which relied on the admissions; and nearly eleven months after the requests had been deemed admitted.

¶ 11. The Dillons' only explanation for the untimely answers is that their counsel had trouble contacting the Dillons. Counsel's trouble contacting the Dillons is not a justification for failing to answer the requests for admissions timely or request additional time to answer. Dillon's signature was not required for the answers, as Rule 36(a) permits answers to be "signed by the party or by his attorney ." (Emphasis added). Rule 36(a) also permits the answers to be filed in a "longer time as the court may allow."

¶ 12. The Dillons argue that the circuit court abused its discretion in granting PiCo's motion to reconsider the Rule 78 order and by denying the motion to amend, withdraw, or strike the tardiness of the admissions without first applying the "two-pronged test" in Rule 36(b). Rule 36(b) states that the trial court "may permit" admissions to be withdrawn or amended when: (1) "the presentation of the merits of the action will be subserved thereby," and (2) "the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits." However, the Mississippi Supreme Court has refused to find that these factors create a mandatory, two-pronged test. Rather, the supreme court has held that "[a] mandatory, two-pronged test ... is contrary to both the plain language of Rule 36(b) and prior rulings of [the supreme c]ourt." Young , 67 So.3d at 739 (¶ 14). "In using the permissive term 'may' rather than the mandatory term 'shall,' Rule 36(b) does not create a mandatory, per se requirement that the lower court must apply before denying the withdrawal or amendment of a deemed admission." Young , 67 So.3d at 739 (¶ 14). "The permissive language of [ Rule 36(b) ] respecting the trial court's duties clearly provides that relief from the definite time periods is only available at the trial court's discretion." Earwood v. Reeves , 798 So.2d 508, 515 (¶ 22) (Miss. 2001). Thus, the Dillons' argument that Rule 36(b) contains a mandatory two-pronged test is without merit.

¶ 13. Nonetheless, we find no merit to the Dillons' arguments under Rule 36(b) -that the merits of the case should be addressed and that PiCo would not be prejudiced by the withdrawal of the admissions. These arguments are similar to the defendants' arguments in Earwood . Earwood , 798 So.2d at 516 (¶ 25). The defendants in Earwood argued, unsuccessfully, that "the [trial] court should have permitted withdrawal of the deemed admissions because the presentation of the case on the merits would be promoted and that permitting withdrawal would not result in undue prejudice or delay to [the plaintiff] in maintaining his action on the merits." Id. The supreme court found that prejudice had resulted because the defendants had unnecessarily delayed the action by waiting ten months to move to withdraw the admissions, and because the motion to withdraw was not filed until the plaintiff had moved to have the requests deemed admitted, to compel, and for partial summary judgment. Id. The supreme court further found that any prejudice claimed by the defendants was "self-imposed," as the defendants were "aware of the date on which the requests for admission were served[, and i]t was completely within their power to either comply with the rules, request additional time in which to respond, or seek clarification from the court" as to the deadline. Id. at 517 (¶ 28).

¶ 14. The Dillons argue that the circuit court should have considered PiCo's delay in moving for summary judgment. They argue, in essence, that PiCo waived its right to rely on the admissions by not doing so promptly. They state: "Eight months went by wherein PiCo participated in substantial discovery and never once insinuated or postured that [it was] treating Dillon's ... admissions as admitted for tardiness," and it was "[m]uch to [the Dillons'] surprise" when PiCo filed for summary judgment on April 1, 2016. However, under Rule 56(b), a defendant may move for summary judgment "at any time." Further, PiCo was not required to notify the Dillons that it intended to rely on the admissions or take any action to have the admissions admitted. " Rule 36 is self-executing, and no motion to have a request deemed admitted is required." Tyler v. Auto. Fin. Co. , 113 So.3d 1236, 1240 (¶ 13) (Miss. 2013). Also, Rule 36"does not require a party to inquire of another whether requests for admission have been answered. Indeed, the point is that a diligent party will take great pains to ensure the requests have either been admitted or denied, as they are automatically deemed admitted after thirty days." Scoggins v. Baptist Mem'l Hosp.-Desoto , 967 So.2d 646, 649 (¶ 15) (Miss. 2007).

¶ 15. This Court is "compelled to acknowledge the adage that rules are promulgated for a purpose, this being precisely an instance in which that principle applies." Id. at (¶ 13) (quoting Earwood , 798 So.2d at 516 (¶ 26) ). "For certain, all courts, counsel, and litigants would rather see cases decided on the merits." Young , 67 So.3d at 741 (¶ 17). However, "this aspirational goal carries with it a commensurate responsibility imposed upon all to abide by the [r]ules and the decisions of our courts, as opposed to seeking a benevolent decision from a trial judge." Id. " Rule 36 is to be enforced despite the fact that harsh consequences might result[.]" DeBlanc , 814 So.2d at 801 (¶ 23).

¶ 16. "The requests for admissions ... were a simple matter which could have been answered in a few minutes time, or for which a motion for enlargement of time could have been filed. Yet [Dillon] simply failed to timely respond." Young , 67 So.3d at 741 (¶ 16) (internal citations and quotation marks omitted). Even after the time expired to answer the requests for admissions, the problem created thereby "could easily have been eliminated if a motion to withdraw or amend the answers had been filed pursuant to Rule 36(b) and if there were justifiable excuse." Scoggins , 967 So.2d at 649 (¶ 15). However, "[i]n cases involving unexplained, untimely responses, the appellate courts of this state unanimously have emphasized that Rule 36 'is to be enforced according to its terms.' " Young , 67 So.3d at 738 (¶ 11) (quoting Educ. Placement Servs. v. Wilson , 487 So.2d 1316, 1318 (Miss. 1986) ).

¶ 17. We cannot find the circuit court erred in granting PiCo's motion to reconsider and denying the Dillons' motion to amend, withdraw, or strike the tardiness of the admissions. "The circuit court cannot 'help' the untimely party if [he] failed to avail [him]self of the remedies provided under Rule 36(b)." Montgomery v. Stribling , 115 So.3d 823, 829 (¶ 18) (Miss. Ct. App. 2012) (internal quotation marks omitted). This issue is without merit.

II. Additional Time for Discovery

¶ 18. The Dillons argue that the circuit court abused its discretion in denying their Rule 56(f) motion for additional time for discovery to defend against PiCo's summary-judgment motion. Summary judgment shall be granted when there is no genuine issue of material fact for trial. M.R.C.P. 56(c). To defend against a summary-judgment motion, the opposing "party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in [ Rule 56 ], must set forth specific facts showing that there is a genuine issue for trial." M.R.C.P. 56(e).

¶ 19. If discovery is incomplete when a party moves for summary judgment, the opposing party may seek additional time for discovery to defend against the motion. M.R.C.P. 56(f). Rule 56(f) states:

When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just.

¶ 20. Rule 56(f) is designed to "protect[ ] against improvident or premature grants of summary judgment and is to be applied liberally." Stanley v. Scott Petroleum Corp. , 184 So.3d 940, 942 (¶ 5) (Miss. 2016). " Rule 56(f) 'contemplates that completion of discovery in some instances is desirable and necessary before a court can determine that there are genuine issues as to the material facts.' " Roberts v. Boots Smith Oilfield Servs. LLC , 200 So.3d 1022, 1026 (¶ 25) (Miss. 2016) (quoting Smith v. H.C. Bailey Cos. , 477 So.2d 224, 232 (Miss. 1985) ). "This is especially true where the party seeking to invoke the protections of Rule 56(f) claims the necessary information rests within the possession of the party seeking summary judgment." Roberts , 200 So.3d at 1026 (¶ 25) (quoting Prescott v. Leaf River Forest Prods. Inc. , 740 So.2d 301, 308 (¶ 13) (Miss. 1999) ).

¶ 21. " Rule 56(f) is not designed to protect the litigants who are lazy or dilatory." Roberts , 200 So.3d at 1027 (¶ 27) (quoting Owens v. Thomae , 759 So.2d 1117, 1120 (¶ 12) (Miss. 1999) ). Rather, "the party resisting summary judgment must present specific facts why he cannot oppose the motion and must specifically demonstrate how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant's showing of the absence of a genuine issue of fact." Id. (quoting Prescott , 740 So.2d at 308 (¶ 13) ). The grant or denial of a Rule 56(f) motion is reviewed for abuse of discretion. Roberts , 200 So.3d at 1026 (¶ 25).

¶ 22. The Dillons' complaint was filed on April 8, 2015, and discovery proceeded for almost a year before PiCo moved for summary judgment on April 1, 2016. On April 15, 2016, when the Rule 56(f) motion was filed, the Dillons had noticed the trial for August 22, 2016, and no experts had been designated. The Dillons' Rule 56(f) motion gives the following reasons for the need for additional time:

Plaintiffs need a reasonable amount of time to conduct an in[-]depth investigation of the facts surrounding Defendant, Pico, Inc. Defendant has failed to even take the Plaintiff's deposition. Plaintiff's account of how the collision occurred will undoubtedly contradict the Defendant's driver's deposition testimony. This will ultimately create an undeniable genuine issue of material fact for the jury to decide. There will be a question of comparative [negligence] and apportionment of fault. If the Defendant is unwilling to take the deposition, the Plaintiff will sign an affidavit to his narrative of the auto collision.
... [T]he Plaintiff still needs additional time to secure and complete their expert opinion in regards to the collision and the lighting of the PiCo, Inc. truck. Also, Plaintiffs have not been afforded an opportunity to physically inspect the truck in question. Most importantly, the Defendant has not taken ... Dillon's deposition regarding the facts of the collision. Plaintiffs have not had time to complete discovery[;] there are still outstanding discovery disputes that are at issue before the [c]ourt. The Defendant has objected to and refused to produce their own safety manual.

¶ 23. The circuit court found the motion failed to demonstrate with "specific facts" how additional time for discovery would aid in opposing the summary-judgment motion. While the Dillons asserted that PiCo had failed to depose Dillon before moving for summary judgment, PiCo was not required to do so. As stated in Rule 56(b), a defendant may move for summary judgment "at any time." Also, as PiCo points out, PiCo had no need to depose Dillon, given Dillon's admissions. And while Dillon asserted he would sign an affidavit, there was no explanation why Dillon's affidavit could not be presented prior to the summary-judgment hearing. In fact, through a later filing, it was discovered that Dillon's affidavit had been executed on April 28, 2016-two weeks prior to the May 12, 2016 summary-judgment hearing. Dillon had "until the day before [the] summary[-]judgment hearing to serve opposing affidavits." Vicksburg Healthcare LLC v. Dees , 152 So.3d 1171, 1174 (¶ 12) (Miss. 2014) (citing M.R.C.P. 56(c) ). There is no explanation why the affidavit was not served. Finally, while the Dillons asserted they had "not been afforded an opportunity" to inspect PiCo's truck or obtain an expert, no request to inspect the truck had been made, and there is no explanation how an expert would be useful in this matter.

¶ 24. Importantly, the motion again failed to address the admissions. In its order granting summary judgment, the circuit court pointed out that the Dillons had inexplicably failed to mention the requests for admissions in response to PiCo's summary-judgment motion, despite the fact that the "motion spent considerable time on the matter of the admissions." Given the admissions, the Dillons have not demonstrated how additional time for discovery would aid them in defending against PiCo's summary-judgment motion. Thus, we cannot find the circuit court abused its discretion in denying the Rule 56(f) motion. See Roberts , 200 So.3d at 1027 (¶ 27). This issue is without merit.

III. Summary Judgment

¶ 25. Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c). A trial court's grant or denial of summary judgment is reviewed de novo. Young , 67 So.3d at 741 (¶ 18).

¶ 26. To prove negligence, a plaintiff must show by a preponderance of the evidence a duty owed by the defendant, a breach of that duty, causation, and injury. Sanderson Farms Inc. v. McCullough , 212 So.3d 69, 76 (¶ 17) (Miss. 2017). "An action against an employer based on the doctrine of respondeat superior is a derivative claim arising solely out of the negligent conduct of its employee within the scope of his or her employment." J & J Timber Co. v. Broome , 932 So.2d 1, 6 (¶ 19) (Miss. 2006). "Loss of consortium is similarly derivative[.]" Id. "The spouse seeking compensation for loss of consortium must show that he or she suffered damages arising out of the other's injuries." Coho Res. Inc. v. McCarthy , 829 So.2d 1, 22 (¶ 66) (Miss. 2002). "[I]f the underlying personal[-]injury claim is disposed of, the loss[-]of[-]consortium claim cannot be maintained on its own." J & J Timber , 932 So.2d at 6 (¶ 19).

¶ 27. The circuit court granted summary judgment on Dillon's negligence claim based on Dillon's Rule 36 admissions. Accordingly, summary judgment was also granted on Shawna's derivative loss-of-consortium claim. Among the items Dillon admitted by default are: (1) Dillon and Rodgers were traveling north on Highway 603 for at least two minutes and at least one mile before the accident; (2) there is no shoulder on Highway 603 North in the one mile preceding the accident site; (3) Rodgers did not pull out in front of Dillon in the sixty seconds prior to the accident; (4) Dillon failed to see Rodgers in front of him just prior to the accident and failed to keep a proper lookout for vehicles ahead of him; (5) Rodgers had the right-of-way; (6) Dillon failed to keep his car under proper control; (7) Dillon failed to apply his brakes in a timely fashion; (8) Dillon did not hit his brakes prior to the accident; (9) Dillon was speeding; (10) Dillon's eyes were distracted from the road in the moments prior to the accident; (11) Dillon caused the accident, and no action or inaction by Rodgers caused the accident; (12) Dillon had the last chance to avoid the accident; and (13) the Mississippi Highway Patrol and Dillon's insurance company found him 100% at fault for the accident.

¶ 28. The Dillons argue that despite the admissions, there are still genuine issues of material fact for trial, such as whether Rodgers properly applied his brakes or used his turn signal, and whether the tractor-trailer was properly illuminated in accordance with state and federal regulations. However, Dillon failed to attempt to oppose the summary-judgment motion with affidavits or other evidence, as required by Rule 56(e), or state why he could not do so. Rule 56(e) states that a party opposing summary judgment "may not rest upon the mere allegations or denials of his pleadings," but "must set forth," by affidavits or other appropriate means, "specific facts showing that there is a genuine issue for trial."

¶ 29. The Dillons failed to respond or present any evidence in opposition to summary judgment until May 17, 2016-five days after the scheduled summary-judgment hearing-when Dillon presented his own affidavit and the deposition testimony of Rodgers and PiCo driver David Simmons. Dillon's affidavit was executed on April 28, 2016, and Rodgers's and Simmons's depositions were taken on February 18, 2016. There is no explanation why the evidence was not presented prior to the summary-judgment hearing, despite it being available.

¶ 30. Regardless, in light of the admissions, the affidavit and deposition testimonies do not present genuine issues of material fact for trial. Dillon admitted that he failed to keep a proper lookout and that no action or inaction on Rodgers's part caused the accident. Further, it is undisputed that Dillon stated that he had no recollection of the accident. PiCo submitted Rodgers's affidavit in support of its summary-judgment motion. Rodgers swore in his affidavit that at no time was he on the shoulder of the road, as alleged in the Dillons' complaint; rather, he was traveling north on Highway 603 and had slowed to turn left when Dillon rear-ended his tractor-trailer. Rodgers states in the affidavit that he used his turn signal and that before leaving PiCo's yard at around 5 a.m., approximately thirty minutes before the accident, he had inspected the truck and trailer to make sure the lights and signals were working properly. Two photographs of the accident scene were attached to the affidavit, showing the lights were operable and illuminated. In his deposition, Rodgers stated that in order to slow the truck down to make the turn, he "geared down," which involved applying the brakes, then shifting, then applying the brakes again, in a sequence. Simmons testified that he was traveling behind Rodgers and could see Rodgers's taillights from a quarter mile away shortly before the accident, although he was not looking at the tractor-trailer at the exact moment of the accident.

¶ 31. Given the admissions, the Dillons have failed to show the existence of a genuine issue of material fact for trial. We find summary judgment was appropriately granted.

¶ 32. AFFIRMED.

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

      Dillon admits he has no recollection of the accident. Rodgers's affidavit states that at no time was he on the shoulder of the road. Rather, he states he was traveling north on Highway 603 and had slowed to make a left turn when Dillon rear-ended his tractor-trailer. In response, Dillon asserts that Rodgers was still at fault for the accident because Rodgers failed to signal the turn and failed to use the brakes properly.


author: WILSON, J., FOR THE COURT: WESTBROOKS, J., DISSENTING:

text:
    Thomas HOLDER a/k/a Thomas L. Holder, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01145-COA
    Court of Appeals of Mississippi.
    November 21, 2017 Rehearing Denied March 27, 2018
    ATTORNEY FOR APPELLANT: THOMAS HOLDER (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART
    EN BANC.
   WILSON, J., FOR THE COURT:

¶ 1. Thomas Holder pled guilty to touching a child for lustful purposes and was sentenced to fifteen years in the custody of the Mississippi Department of Corrections (MDOC). However, the entire sentence (save for time served) was suspended subject to Holder's good behavior and compliance with certain conditions. Holder promptly violated one of those conditions by providing a false address on his sex offender registration form. As a result, the circuit court revoked his suspended sentence and ordered him to serve the full sentence in MDOC custody. Holder later filed a motion for post-conviction relief (PCR). The circuit court denied the motion, and this Court affirmed. Holder v. State , 137 So.3d 884 (Miss. Ct. App. 2013). Holder then filed a second PCR motion. The circuit court denied the motion, and Holder appealed.

¶ 2. In the present appeal, Holder argues that his "original sentencing to an illegal banishment condition rendered his guilty plea void." This argument refers to a condition of Holder's suspended sentence that required him to "[d]epart from Hattiesburg" and stay at least one hundred miles away from Hattiesburg "for the entire period of his suspended sentence." Holder specifically agreed to this condition in his plea petition.

¶ 3. Holder's revocation had nothing to do with the "banishment condition." His suspended sentence was revoked because he provided a false address on his sex offender registration form. The banishment condition does not render his guilty plea void. Nor does it affect the order revoking his suspended sentence due to his violation of an unrelated condition. Ratcliff v. State , 224 So.3d 99, 101-02 (¶¶ 9-10) (Miss. Ct. App. 2016), cert. denied , 222 So.3d 311 (Miss. 2017). Accordingly, the circuit court correctly denied Holder's second PCR motion.

¶ 4. The dissent would remand the case to the circuit court for findings regarding the validity of the banishment condition. However, the issue is now moot. Upon revocation, the circuit court sentenced Holder to serve the remainder of his sentence in MDOC custody. In addition, because Holder was "convicted of a sex crime," he is not eligible for parole, earned time, or trusty time. Miss. Code Ann. §§ 47-5-139(1)(d), 47-5-138.1(2)(c), & 47-7-3(1)(b) (Rev. 2015). The banishment condition was a condition of Holder's suspended sentence, but his suspended sentence has now been revoked, and he will serve the remainder of his sentence in MDOC custody. Therefore, the banishment condition has no continuing effect on Holder, and the issue is moot because a ruling in Holder's favor would be of no practical benefit to him. Hunt v. MDOC , 217 So.3d 789, 791 (¶ 6) (Miss. Ct. App. 2017). We decline to require the circuit judge to adjudicate or make findings on a moot question.

¶ 5. AFFIRMED.

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

WESTBROOKS, J., DISSENTING:

¶ 6. I am of the opinion that Holder's original sentence, which included a banishment clause, was illegal and void. Therefore, I respectfully dissent.

¶ 7. The majority asserts that "Holder's revocation had nothing to do with the 'banishment condition,' " and that the "banishment condition does not render his guilty plea void." Maj. Op. at (¶ 3). I agree that Holder's suspended sentence was revoked for reasons entirely unrelated to the banishment clause. However, our Supreme Court has outlined the importance of conducting an on-the-record determination for the necessity and validity of a banishment clause in a sentencing order.

In considering the paucity of banishment cases in Mississippi, this Court has expressed serious concerns. Although this Court has not specifically forbidden banishment, prior decisions clearly establish that arbitrary banishment will not be upheld; that is, justification for the banishment must clearly be established in the record.

Mackey v. State , 37 So.3d 1161, 1163 (¶ 7) (Miss. 2010).

¶ 8. I find that we must reverse and remand, because the circuit court did not conduct an "on-the-record explanation for the banishment clause," required by Means v. State , 43 So.3d 438, 446 (¶ 26) (Miss. 2010), and Mackey.

¶ 9. The Mississippi Supreme Court has held that "the judge must articulate, on the record, the reasons for and benefits of the banishment." Id. "This is because the judge may not restrict the defendant's personal liberty of free movement without following ... due process ...." Id. Here, the circuit court's order made no specific factual findings relating the banishment clause to Holder's actions.

¶ 10. It is important that circuit courts make factual findings supporting the following factors provided for in McCreary v. State , 582 So.2d 425, 427 (Miss. 1991) (citation omitted):

[T]hat the banishment provision bore a reasonable relationship to the purpose of probation; that the ends of justice and the best interest of the defendant and the public would be served; that public policy was not violated and the rehabilitative purpose of probation was not defeated; and that [the petitioner's] rights under the First, Fifth[,] and Fourteenth Amendments to the United States Constitution were not violated.

¶ 11. However, the circuit court merely read the McCreary factors in the record, failing to explain specifically how they applied to Holder. When circuit courts impose banishment clauses or provisions as conditions of suspended sentences, they must adhere to the guidelines and factors set forth in McCreary . And so, because the circuit court did not state on the record its reasoning for the implementation of the banishment clause, I would find not only that Holder's PCR motion is excepted from the procedural bar, but that his sentence is illegal and void.

¶ 12. The majority contends that the "issue [regarding the validity of the banishment clause] is now moot." Maj. Op. at (¶ 4). The majority's compartmentalization of the reasons for the revocation does not negate the fact that the revocation order was a derivative of an illegal sentence as a result of an illegal banishment clause.

¶ 13. Therefore, respectfully, I dissent.

      Holder complied with the banishment condition. He was in Alcorn County, nearly three hundred miles from Hattiesburg, when he provided the false address.

      Our Supreme Court has held that a "court may not banish a person convicted of a crime without first explaining, on the record, the reasons for and benefits of the banishment ... as they relate to the defendant." Means v. State , 43 So.3d 438, 445 (¶ 24) (Miss. 2010).


author: FAIR, J., FOR THE COURT:

text:
    Franklin N. WILLIAMS, Appellant v. US BANK TRUST, N.A., as Trustee FOR LSF8 MASTER PARTICIPATION TRUST AS ASSIGNEE OF MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC., Nominee for Ameritrust Mortgage Company, Appellee
    NO. 2016-CA-01770-COA
    Court of Appeals of Mississippi.
    November 28, 2017 Rehearing Denied April 3, 2018
    ATTORNEY FOR APPELLANT: BRILEY RICHMOND
    ATTORNEY FOR APPELLEE: GENE D. BERRY
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. Franklin Williams defaulted on a promissory note and deed of trust. US Bank Trust foreclosed the deed of trust and received a substitute trustee's deed. The Bank later discovered that the property description in both Williams's deed and the purchase money deed of trust contained errors.

¶ 2. US Bank filed for a declaratory judgment and reformation of its deed of trust to correspond with the corrected description contained in Williams's deed, and thus allow it to proceed with foreclosure. The Pearl River County Chancery Court granted summary judgment to US Bank, and Williams appeals. We find no error and affirm.

FACTS

¶ 3. In November 2003, Dan Boone Custom Homes Inc. acquired title to a ten-acre tract in Pearl River County. On February 23, 2004, Boone deeded five acres (including a house) to Williams. The warranty deed to Williams incorrectly referenced Section 26 instead of Section 27, but the indexing instruction properly referred to Section 27. The deed also referenced Stone County rather than Pearl River County, though it was filed in the Pearl River County Chancery Clerk's land deed records. Discovering the error, Williams obtained a quitclaim deed from Boone with a corrected description. The corrected quitclaim deed was filed with a survey of the five-acre tract, done by Hattaway Engineering, as an attachment. The survey described two five-acre parcels, identified as Parcels A and B. Parcel B was conveyed to Williams. Boone retained Parcel A, which it later sold.

¶ 4. At the time of purchase, Williams had executed a promissory note to Ameritrust Mortgage Company for $106,000. The note was secured by a purchase money deed of trust in favor of Mortgage Electronic Registration Systems Inc., nominee for Ameritrust. The deed of trust contained the same errors in the property description that were in Williams's original deed.

¶ 5. After Parcel B was conveyed to Williams, Boone mistakenly used the legal description for the entire ten acres to convey Parcel A, creating a conflict with Williams's deed. The conflict was corrected by subsequent deeds in the chain of title of both Parcels A and B. These two deeds, along with the original corrective deed, confirm the final legal description of the Parcel B five-acre tract which had been purchased by Williams.

¶ 6. Ten years later, Williams defaulted on the promissory note. The erroneous deed of trust was noticed for a foreclosure sale on October 9, 2014. At that sale, US Bank made a credit bid, and a substitute trustee's deed-with the erroneous description-was executed to US Bank. When Williams failed to relinquish possession, US Bank filed suit in the Pearl River County Court. Williams defended alleging that the foreclosure was invalid because the deed of trust contained errors. With the consent of the parties, the county court dismissed the Bank's suit without prejudice.

¶ 7. US Bank then filed this action in the Pearl River County Chancery Court for reformation of the deed of trust to correct the property description to match that of Williams's corrected deed. As part of its motion for summary judgment, US Bank attached an affidavit from David Lopez as trustee. Based on that affidavit, the chancery court granted summary judgment to US Bank.

STANDARD OF REVIEW

¶ 8. "We employ a de novo standard of review of a trial court's grant or denial of summary judgment and examine all the evidentiary matters before it ...." Davis v. Hoss , 869 So.2d 397, 401 (¶ 10) (Miss. 2004). Summary judgment is proper when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c).

¶ 9. "The evidence is viewed in the light most favorable to the party opposing the motion." Davis , 869 So.2d at 401 (¶ 10). "[A]n adverse party may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial." M.R.C.P. 56(e). Furthermore:

[W]hen a party, opposing summary judgment on a claim or defense as to which that party will bear the burden of proof at trial, fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law.

Galloway v. Travelers Ins. , 515 So.2d 678, 684 (Miss. 1987).

DISCUSSION

1. Declaratory Relief and Reformation of the Deed of Trust

¶ 10. US Bank sought declaratory relief under Mississippi Code Annotated section 89-1-45 (Rev. 2011), which provides:

Every mortgage given at the time of the purchase of real estate to secure the payment of the purchase money, whether such mortgage be given to the seller or to a third-party lender, shall be entitled to a preference over all judgments and other debts of the mortgagor, which preference shall extend only to the land purchased.

After Williams defaulted on the promissory note and deed of trust, US Bank bid at a public sale on what it understood to be the subject property. Williams did not oppose correction of the same errors in his deed, nor did he deny owing a balance on his debt for purchase money loaned to him by US Bank.

¶ 11. The Mississippi Supreme Court, as well as this Court, has repeatedly affirmed judgments reforming a deed of trust to reflect parties' intentions. See, e.g., Flowers v. Boolos (In re Estate of Smith) , 204 So.3d 291, 309 (¶ 38) (Miss. 2016) ; Veterans Admin. v. Bullock , 254 Miss. 562, 180 So.2d 610, 614 (1965) ; Walters v. Merch. & Mfr. Bank , 218 Miss. 777, 67 So.2d 714, 716 (1953) ; Birchett v. Anderson , 160 Miss. 144, 133 So. 129, 131 (1931) ; Wright v. Henley , 158 So.3d 1166, 1170 (¶ 13) (Miss. Ct. App. 2014). Here, due to a scrivener's error, Williams's deed and deed of trust listed the wrong section and county. It is undisputed that Boone intended to convey a specific five acres to Williams in Pearl River County and that Williams intended to buy those five acres. This intent is evidenced by the quitclaim deed obtained by Williams from Boone carrying out that intent. Based on the clear intent of the parties, we find summary judgment was proper.

2. Election of Remedies

¶ 12. On appeal, Williams raises election of remedies as a defense. Election of remedies is an affirmative defense and requires "(1) existence of two or more remedies, (2) inconsistency between such remedies, and (3) a choice of one of the remedies." Knight Props. Inc. v. State Bank & Tr. Co. , 77 So.3d 491, 494 (¶ 13) (Miss. Ct. App. 2011).

¶ 13. Because Williams failed to raise this defense in the trial court, it is waived. Were it not waived, election of remedies does not apply. Although two or more remedies exist here (foreclosure or a judgment in total satisfaction of the debt), our supreme court has held that there is no inconsistency in a mortgagee's legal and equitable rights. See id. at 494-95 (¶ 15).

3. Estoppel

¶ 14. Williams next raises the defense of equitable estoppel, a defense he also raised in chancery court. He cites no authority for his position. Our supreme court "has repeatedly held that failure to cite any authority may be treated as a procedural bar." Rolison v. Fryar , 204 So.3d 725, 738 (¶ 33) (Miss. 2016).

¶ 15. Nevertheless, equitable estoppel does not apply here. The elements required for equitable estoppel are "(1) belief and reliance on some representation; (2) a change of position as a result thereof; and (3) detriment or prejudice caused by the change of position." Eagle Mgmt. LLC v. Parks , 938 So.2d 899, 904 (¶ 13) (Miss. Ct. App. 2006) (citation omitted). The record fails to show that Williams relied on any representation by US Bank. As a result, Williams cannot satisfy the remaining elements necessary for equitable estoppel.

4. Unclean Hands

¶ 16. Williams also raises the unclean hands doctrine as a defense. "[T]he clean hands doctrine prevents a complaining party from obtaining equitable relief in court" only if the party "is guilty of willful misconduct in the transaction at issue." Scruggs v. Wyatt , 60 So.3d 758, 772 (¶ 34) (Miss. 2011) (quoting Bailey v. Bailey , 724 So.2d 335, 337 (¶ 6) (Miss. 1998) ).

¶ 17. Specifically, Williams claims that US Bank "engaged in quite egregious, fraudulent, and at times, unlawful activity in attempting to force [him] to surrender important rights ...." He refers to a demand letter from Frank Healy of Marisol Law Group, acting on behalf of US Bank. For the first time on appeal, Williams claims that the letter directly violates the Federal Fair Debt Collection Practices Act. 15 U.S.C. §§ 1692 to 1692p (2012).

¶ 18. It is well established that this Court will not consider issues raised for the first time on appeal. Fowler v. White , 85 So.3d 287, 293 (¶ 21) (Miss. 2012). Thus, we decline to address Williams's argument.

5. Affidavits

¶ 19. Williams finally claims that the chancellor failed to consider his own "affidavit" and erroneously relied on US Bank Trustee David Lopez's affidavit. We address each argument in turn.

¶ 20. Williams did not submit an affidavit. Rather, he attempts to categorize his unsworn response in opposition to summary judgment as an affidavit. Even so, the court stated in its motion that Williams failed to provide any evidence to create a genuine issue of material fact on either the merits of the reformation or on any potential defenses. We agree.

¶ 21. US Bank did present an affidavit from Lopez as trustee. Lopez testified to the undisputed facts as shown in the Pearl River County Chancery Clerk's land records-that the deed of trust contained a scrivener's error in the legal description. His affidavit also referred to the Hattaway Survey, which was recorded in the land records with a curative deed obtained by Williams.

¶ 22. Williams specifically argues that the affidavit lacks personal knowledge because Lopez, who resides in Texas, was not the scrivener and was not present at the auction. He further argues that Lopez was not competent to testify. We find Williams's argument unconvincing. Not only did Lopez testify that he had personal knowledge of the facts he provided, Williams offered no evidence to contradict Lopez's sworn statements. Nor does Williams cite any authority requiring Lopez to have been the scrivener or present at the auction in order to have personal knowledge of the facts stated in his affidavit. Lopez simply testified via uncontested affidavit to matters within the purview of public record and US Bank files. Accordingly, we find the chancery court properly considered Lopez's affidavit.

CONCLUSION

¶ 23. After review, we find that no properly presented evidence creates a genuine issue of material fact. Therefore the circuit court's grant of summary judgment is affirmed.

¶ 24. AFFIRMED.

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


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

text:
    Timothy M. BENTON, Appellant v. Elizabeth A. BENTON, Appellee
    NO. 2016-CA-01493-COA
    Court of Appeals of Mississippi.
    January 23, 2018
    ATTORNEYS FOR APPELLANT: MATTHEW THOMPSON, CHAD KENNETH KING
    ATTORNEYS FOR APPELLEE: GAIL D. NICHOLSON, GERALD C. PATCH
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. The Chancery Court of Hancock County granted a divorce to Elizabeth A. Benton (Beth) and Timothy M. Benton (Tim). Tim appeals, asserting the following issues: (1) the court erred in failing to value all material marital assets; (2) the court erred in failing to value the business, which resulted in an erroneous alimony award; and (3) these errors resulted in an erroneous child-support award. Finding no error, we affirm.

FACTS

¶ 2. Tim and Beth were married on or about February 10, 2000, in Pearl River County, Mississippi. During the marriage, Tim provided the family's primary source of income through operation of his businesses: Tim Benton Tree Service and Benton Green LLC. Beth occasionally assisted Tim with the businesses, but her primary duty was to care for their four children, all of whom were born of the marriage. Tim and Beth separated in September 2013. Beth filed her complaint for divorce on November 14, 2014, on the grounds of willful, continued, and obstinate constructive desertion for more than one year; habitual cruel and inhuman treatment; and, alternatively, irreconcilable differences. Tim was personally served with process, but he never filed any responsive pleadings to Beth's complaint.

¶ 3. On January 12, 2015, after a hearing which both Beth and Tim attended, the chancery court entered a temporary order granting joint legal custody of the children to Beth and Tim, physical custody of the children to Beth, and visitation to Tim. Additionally, the court ordered Tim to pay Beth temporary child support in the amount of $3,500 per month and temporary alimony in the amount of $1,500 per month. The parties were unable to produce their tax returns during the January 12, 2015 hearing, so the court reset the matter for February 18, 2015, with instructions that the parties provide their tax returns at that time. Further, the court instructed Tim to present any financial records reflecting the income and operating expenses derived from his businesses. Tim appeared at the February 18, 2015 hearing, represented by counsel, but again without the financial records of his business, so the matter was continued until April 6, 2015. Tim again failed to produce the requested financial records at the April 6, 2015 hearing, and the court allowed his attorney to withdraw.

¶ 4. The matter went to trial, during which Beth was represented by her attorney, while Tim proceeded pro se. Beth filed an 8.05 financial statement, but Tim failed to produce his. He also failed to produce the other requested financial records. In the interim, between trial and the time at which final judgment was entered, Tim hired a new attorney. On August 10, 2015, Tim's attorney filed a motion to reopen the trial, maintaining that Tim had been "substantially unable to defend himself and aid in his defense." The court conducted a hearing on November 20, 2015, finding that Tim had been "given every opportunity" to file the requested financial documents, yet he had failed to do so. The court further remarked that Tim had failed to timely respond to discovery and was "dishonest when it came to providing the [c]ourt with the amount of money he was actually receiving." Ultimately, the court found that Tim had failed to act in good faith and denied his motion to reopen the trial.

¶ 5. On April 14, 2016, the chancery court entered its findings of fact and conclusions of law, wherein it granted Beth a divorce on the ground of habitual cruel and inhuman treatment. The court noted:

Tim has not introduced any evidence as to the actual revenues of the business[es,] and [he] did not comply with the discovery requests of Beth's attorney to provide copies of all invoices and any and all documentation wherein it could be determined Tim's overhead with regard to the business[es]. Tim also introduced no evidence to show a value of the businesses.

The court further pointed out that Tim failed to request the appointment of a business-valuation expert. As such, the court relied on Beth's 8.05 financial statement, as well as "invoices and bank statements obtained by Beth from the home," to make its findings. The court provided the following regarding Tim's businesses:

There exists a problem with regard to the businesses of the parties, with those being Tim Benton Tree Service and Benton Green, LLC. The [c]ourt has not been presented with a value of the businesses. There is no question that the businesses are a marital asset as there is no question from the testimony that both businesses were started during the marriage with marital funds and no outside funds. However, the [c]ourt cannot equitably divide property when there is no value established for the property. Beth's attorney had sought discovery with regard to the income and expenses of the business, but Tim never complied with the request. Courts have been reversed by equitably dividing property when no value has been established or insufficient evidence was supplied, or when the court attempted to establish a value based upon incomplete evidence. See Johnston v. Johnston , 722 So.2d 453[, 460-61 (¶ ]22) (Miss. 1998) ; Lewis v. Lewis , 54 So.3d 233[, 239-40 (¶¶ ]19-22) (Miss. Ct. App. 2009) [ (reversed in part on other grounds by Lewis v. Lewis , 54 So.3d 216, 219 (¶ 8) (Miss. 2011) ]; and Faerber v. Faerber , 13 So.3d 853[, 859-60 (¶ ]25) (Miss. Ct. App. 2009).
The [c]ourt can, however, consider the business[es] as ... source[s] for the payment of alimony to Beth as a factor of being just and equitable pursuant to the Armstrong case. This is due to the fact that the property cannot be value[d] due to the lack of an expert valuation and the fact that Tim is the principal operator of the business.

¶ 6. The court ultimately found Tim to have an adjusted gross income of $17,640.75 per month, on average. The court noted that the guidelines established by Mississippi Code Annotated section 43-19-101 (Rev. 2015) would require Tim to pay twenty-four percent of that amount in child support, amounting to a payment of $4,233.78 per month. However, the chancellor reduced that amount to $2,500 per month and required Tim to pay all tuition and expenses for the children's private schooling, all extracurricular expenses for the children, and all medical expenses not covered by the government-assistance program provided to Beth. The chancellor additionally ordered Tim to pay Beth permanent periodic alimony in the sum of $6,000 per month and to maintain life insurance in the amount of $250,000, naming Beth as the beneficiary.

¶ 7. On April 21, 2016, Tim's attorney filed a motion for a new trial. On June 7, 2016, the court conducted a hearing, wherein Tim's attorney again argued that Tim's lack of legal representation rendered him unable to adequately defend himself or present necessary evidence. Tim's attorney requested a new trial so that the court could conduct a proper business valuation based on the records prepared by his certified public accountant (CPA) since trial.

¶ 8. On September 19, 2016, the court denied Tim's motion. The court found that Beth "did not seek a true offset in terms of property division," because she abandoned her request for any interest in the businesses and asked instead that the businesses be considered as part of Tim's gross income for child support and alimony purposes. The court further noted that appointment of a business-valuation expert would have been hardly beneficial, as there were no records that the expert could have examined. Finally, the court provided that "the burden lies at the feet of the litigants to provide the [c]ourt with sufficient evidence in which to value marital assets," and stated that "during the course of the litigation [Tim] was afforded ample opportunity and time on multiple occasions to provide supplemental evidence, which he did not do." Tim filed this timely appeal.

DISCUSSION

¶ 9. "We review a chancellor's factual findings for abuse of discretion." Lacoste v. Lacoste , 197 So.3d 897, 901 (¶ 6) (Miss. Ct. App. 2016) (citation omitted). "The findings of a chancellor will not be disturbed on review unless the chancellor was manifestly wrong or clearly erroneous, or applied the wrong legal standard." Id. at 901-02 (¶ 6) (citation omitted). "Questions of law are reviewed de novo." Id. (citation omitted).

¶ 10. Tim argues that the chancery court erred in failing to value all material marital assets, including Benton Tree Services, and in rendering decisions of alimony and child-support awards accordingly. In response, Beth argues that the court properly distributed the marital assets in light of the fact that Tim refused to comply with the court's orders to produce financial records. Thus, Beth maintains that the court's subsequent alimony and child-support awards were proper.

¶ 11. The Mississippi Supreme Court has stated that "the foundational step to make an equitable distribution of marital assets is to determine the value of those assets based on competent proof." Dunaway v. Dunaway , 749 So.2d 1112, 1118 (¶ 14) (Miss. Ct. App. 1999) (citing Ferguson v. Ferguson , 639 So.2d 921, 929 (Miss. 1994) ). "Nevertheless, it is incumbent upon the parties, and not the chancellor, to prepare evidence touching on matters pertinent to the issues to be tried." Id. "Where a party fails to provide accurate information, or cooperate in the valuation of assets, the chancellor is entitled to proceed on the best information available." Stribling v. Stribling , 906 So.2d 863, 870 (¶ 25) (Miss. Ct. App. 2005) (citation omitted).

¶ 12. Here, it is undisputed that the chancellor did not value Tim's businesses. However, we refuse to hold her in error because of a party's failure to cooperate in providing the necessary documents for proper valuation, and we reiterate the applicable caselaw set forth by the chancery court in its order denying Tim's motion for a new trial. See Jenkins v. Jenkins , 67 So.3d 5, 13 (¶ 21) (Miss. Ct. App. 2011) (declining to find a chancellor in error for failing to conduct a marital-property valuation where the parties failed to provide the relevant evidence); Common v. Common , 42 So.3d 59, 63 (¶¶ 12-13) (Miss. Ct. App. 2010) (holding that a chancellor was not in error for valuing marital assets solely from the parties' 8.05 financial statements, because the parties failed to provide the necessary evidence, and further holding that the former husband could not "now complain that the chancellor's valuations [were] unfair when no reliable evidence of the value of the property was presented at trial"); Dunaway , 749 So.2d at 1121 (¶ 28) (holding that, "[f]aced with proof that was far less than ideal, the chancellor made a valuation of the marital estate that finds some support in the record," and refusing to hold a chancellor in error due to the former husband's failure to produce evidence). It is this Court's opinion that the chancellor did the best she could with the little information presented to her, and that she did not abuse her discretion. Accordingly, we affirm.

¶ 13. AFFIRMED.

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

      During the November 20, 2015 hearing, the court noted that Beth had abandoned any claim to an interest in the businesses and, instead, wanted the court to consider them solely as a source of income for the purpose of determining Tim's adjusted gross income.

      Armstrong v. Armstrong , 618 So.2d 1278, 1280 (Miss. 1993).