author: DICKINSON, PRESIDING JUSTICE, RANDOLPH, PRESIDING JUSTICE, KING, JUSTICE,

text:
    Mississippi State Representative House Speaker, Philip A. GUNN v. Representative J.P. HUGHES, Jr.
    NO. 2016-IA-00442-SCT
    Supreme Court of Mississippi.
    02/09/2017

      ATTORNEYS FOR APPELLANT: MICHAEL B. WALLACE, REBECCA L. HAWKINS, CHARLES EDWARD CO-WAN
    ATTORNEY FOR APPELLEE: SIDNEY RAY HILL, III
   DICKINSON, PRESIDING JUSTICE,

FOR THE COURT:

¶ 1. This case tests the limits of our judicial power to review the manner in which the Legislature carries out its procedural constitutional responsibilities. Article 4, Section 59 of the Mississippi Constitution provides that in the Mississippi Legislature “every bill shall be read in full immediately before the vote on its final passage upon the demand of any member.” When J.P. Hughes Jr., a member of the Legislature, requested that certain bills be read as required by that article, Speaker Phlip Gunn had the bills read by a machine at a speed that Rep. Hughes claims was incomprehensible and therefore a constitutional violation, leading him to file suit to stop the practice. We granted interlocutory appeal and now hold that we are without constitutional authority to resolve this dispute. We remand this case to the circuit court with instructions to dismiss the petition.

FACTS AND PROCEDURAL HISTORY

¶2. On March 23, 2016, Rep. Hughes filed a petition against Speaker Gunn in the circuit court, seeking a temporary restraining order, a preliminary injunction, and, alternatively, a writ of mandamus. Rep. Hughes’s petition asked the circuit judge to order the Speaker’s compliance— by injunction or writ of mandamus—with Article 4, Section 59 of the Mississippi Constitution, which states “every bill shall be read in full immediately before the vote on its final passage upon the demand of any member.” In his petition, Rep. Hughes acknowledges that Speaker Gunn had recognized members’ requests to have bills read under Article 4, Section 59, but in doing so, he had

only partially obliged that request by having the words of the bills read by an electronic device (set on the highest speed adjustment, #10) such that the same is being read artificially and so quickly that no human ear nor mind can comprehend the words of the bills.

¶ 3. After finding that the circuit court had jurisdiction to resolve the dispute, a Hinds County circuit judge granted a temporary restraining order which stated that

the Respondent shall, consistent with Article 59 of the Mississippi Constitution, read or cause to be read all bills presented to the House of Representatives in a normal speed and audible level comprehensive lever [sic] so that each member of the House of Representatives has an opportunity to hear and understand each word of each such properly requested reading.

¶ 4. The order also set a hearing for March 28, 2016, but the next day, the Speaker moved to dissolve the temporary restraining order, arguing that he had complied with Article 5, Section 59; that Rep. Hughes had failed to satisfy several requirements to obtain a temporary restraining order ex parte; and that judicial intervention into the legislative matter was inappropriate.

¶ 5. That same day, the Speaker filed in this Court a petition for interlocutory appeal, or for writ of mandamus or prohibition from the circuit court’s temporary restraining order, arguing that Rep. Hughes had failed to satisfy the requirements to obtain an ex parte temporary restraining order, and that this Court should order the circuit court “to restrain the exercise of its supposed jurisdiction in contravention of the separation of powers doctrine embodied in Miss. Const. Art. 1 §§ 1-2 (1890).”

¶ 6. On March 24, 2016, we dissolved the temporary restraining order and stayed all proceedings in the circuit court, and we ordered Rep. Hughes to respond to the Speaker’s petition for interlocutory appeal, which he did. We then granted interlocutory appeal to “address (1) whether the judiciary has jurisdiction over this dispute in light of Sections 1 and 2, Article I of the Mississippi Constitution, and/or (2) whether this Court should refrain from exercising its jurisdiction over the issues raised in this matter.”

ANALYSIS

¶7. The Mississippi Constitution’s first section states that “[t]he powers of the government of the State of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.” Its second section states that “[n]o person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others.” The jurisdictional question presented is whether judicial intervention in this dispute would be an encroachment on a power conferred upon the Legislature in violation of Article 1, Section 2.

¶ 8. Rep. Hughes claims the Speaker has failed to comply with the requirements of Article 4, Section 59 of the Mississippi Constitution. He asks the judiciary to order the Speaker’s compliance through in-junctive relief. But we hold that this Court lacks constitutional authority to interfere in the procedural workings of the Legislature, even when those procedures are constitutionally mandated. This limitation on our power has been recognized by this Court for more than a century.

¶ 9. In Hunt v. Wright, we recognized that our power to review statutes for constitutional infirmity “commences after the termination of legislative action.” In doing so, the Hunt Court made clear that the judiciary is “not an overseer of the legislature during its labors, but [this Court] takes its completed work, and tries it by the constitution, starting with the conclusive and irrebuttable presumption that as to all the requirements of that instrument they who swore to observe it did it.”

¶ 10. While this case concerns a request for injunctive relief to order the Speaker to carry out a constitutional procedural requirement, not a request to invalidate a statute for some constitutional procedural defect in its enactment, Hunt recognizes that the Legislature possesses exclusive power over its own procedures.

¶ 11. The Hunt decision relied on this Court’s opinion in Ex parte Wren—decided before the adoption of our present Constitution—which unequivocally held that the judiciary lacks any constitutional authority to interfere in the Legislature’s internal procedure:

The legislature is one of the three coordinate and co-equal departments into which the powers of government are divided by the constitution, possessing all legislative power and not subject to supervision and control during its performance of its constitutional functions, nor to judicial revision afterward of the manner in which it obeyed the constitution its members are sworn to support.

¶ 12. But in Tuck v. Blackmon—a more recent opinion that has muddied the constitutional water surrounding Article 4, Section 59—several Mississippi senators sought injunctive relief to enforce that provision. Lieutenant Governor Amy Tuck, acting in her capacity as President of the Senate, had determined that Article 4, Section 59’s requirement that bills be read upon request did not apply to conference committee reports. The senators who had requested a reading sought judicial review and injunctive relief on the question of whether a conference committee report constituted a bill for purposes of Article 4, Section 59.

¶ 13. After a chancellor granted the senators an injunction, Lt. Gov. Tuck appealed, and this Court failed to apply the strict separation of powers required by the Mississippi Constitution, as recognized in Hunt and Wren. The Tuck Court stated:

With respect to the separate powers of each branch of government, the courts will generally refrain from interfering with the Legislature’s interpretation and application of its procedural rules and with its internal operations.

By saying we “generally refrain from interfering,” this Court committed error born of two sources.

¶ 14. First, the Tuck Court purported to apply this Court’s decision in Dye v. State ex rel. Hale, which considered a constitutional challenge on separation-of-powers grounds by several Mississippi senators to Senate rules granting the Lieutenant Governor—an executive officer—control over legislative matters. But Dye addressed a different issue: this Court’s authority to enforce the Mississippi Constitution’s substantive separation of powers.

¶ 15. Second, the Tuck Court characterized the constitutional limits on this Court’s power as a matter of discretion left to the whims of this Court. In other words, this Court found that, although it had jurisdiction to review the constitutionality of the Legislature’s internal actions, it should not—as a matter of judicial restraint— exercise that jurisdiction unless the challenged conduct was manifestly unconstitutional. The Court described this as the “well precedented and respected political question doctrine itself grounded in prudent judicial restraint.”

¶ 16. But while Tuck correctly identified that the political question doctrine was at issue, it incorrectly described that doctrine as one of discretionary judicial restraint. The political question doctrine embodies the constitutional separation of powers between coequal branches of government, setting the limit of the judiciary’s constitutional authority to resolve disputes when there arises either “ ‘a textually demonstrable constitutional commitment of the issue to a coordinate branch political department; or a lack of judicially discoverable and manageable standards for resolving it.’” The Tuck Court’s holding to the contrary was erroneous. At least to the extent that the political question doctrine turns on “ ‘a textually demonstrable constitutional commitment of the issue to a coordinate branch political department” it cannot be considered a matter of discretion given the Mississippi Constitution’s absolute separation of powers.

¶ 17. In sum, when the Tuck Court employed language suggesting the judiciary would refrain from exercising its power to interfere in legislative procedure, it necessarily implied it had that power in the first place. This ran afoul of Wren, Hunt, and the Mississippi- Constitution’s absolute separation of powers. So to be clear, to the extent Tuck held that the judiciary possesses some power to interfere in the Legislature’s internal procedure, we overrule it today.

¶ 18. By requesting the courts to force Speaker Gunn to read bills in a particular manner, Rep. Hughes seeks to involve the judiciary in legislative procedural matters. The text of our state Constitution that imposes upon the Legislature the obligation to read bills upon a member’s request, necessarily commits upon the Legislature the obligation to determine how that requirement will be carried out. So this case must be dismissed, not as a matter of judicial discretion, but because we are without constitutional authority to adjudicate it. The constitutional authority, and duty, to decide the matter lies squarely within the legislative branch of our government.

CONCLUSION

¶ 19. Because Rep. Hughes’s petition raises an issue the judiciary lacks constitutional authority to adjudicate, we remand this case to the circuit court with instructions to dismiss it.

¶ 20. REVERSED AND REMANDED.

WALLER, C.J., COLEMAN, MAXWELL AND BEAM, JJ„ CONCUR. RANDOLPH, P.J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED IN PART BY BEAM, J. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J. CHAMBERLIN, J., NOT PARTICIPATING.

RANDOLPH, PRESIDING JUSTICE,

CONCURRING IN RESULT ONLY:

¶ 21. My esteemed colleagues engage in verbal sparring on an issue which does not demand our attention. “[I]t is well-settled that ‘a constitutional question will be passed on where the issues involved in a particular case are such that the case may be decided on other grounds.’ ” Miss. Power Co., Inc. v. Miss. Pub. Serv. Comm’n, 168 So.3d 905, 910 (Miss. 2015) (quoting Warner-Lambert Co. v. Potts, 909 So.2d 1092, 1093 (Miss. 2005)). Without delving into an extended study and resulting discourse concerning the Constitution and the separation of powers, can we not agree that this Court has jurisdiction to review a circuit court’s order?

¶ 22. Rep. J.P. Hughes filed a petition in Hinds County Circuit Court seeking a temporary restraining order (TRO) without ever noticing Speaker Philip Gunn. The grant of a TRO without notice is governed by Rule 65(b) of the Mississippi Rules of Civil Procedure.

A temporary restraining order may be granted, without notice to the adverse party or his attorney if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and (2) the applicant’s attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and reasons supporting his claim that notice should not be required. Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk’s office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed ten days ....

M.R.C.P. 65(b).

¶23. While Rep. Hughes’s petition is notarized and sworn to, he filed neither a complaint nor an affidavit. Although he alleges “irreparable harm,” he fails to specify any physical or psychological injury that he has suffered—or would suffer— or how the undescribed injury would be irreparable. He does not aver that he or any other member of the House was unable to read, did not have access to the full text of any bill, was uninformed regarding the text of any bill, or that he was unable to understand the text, substance, or import of any bill. In short, Hughes failed to show the urgency and necessity which precipitates a need for a TRO. Equally fatal to Rep. Hughes’s petition is his failure to certify his efforts to provide notice to Speaker Gunn and the reasons why notice should not be required. The petition is totally devoid of any efforts to provide notice and/or reasons why notice should not be required.

¶ 24. The TRO issued is similarly fatally defective. The order fails to decree (1) why the undescribed, undefined “injury” is irreparable and (2) why the trial court granted the order without notice.

¶ 25. The TRO was dissolved by an en banc order of this Court, which also stayed all proceedings in the circuit court until further ordered by this Court. Due to the procedural deficiencies of both the petition and the TRO, the TRO issued in this case is void. Speaker Gunn was wrongfully restrained. Thus, I agree with remanding this matter to the circuit court. However, I would include an instruction to the circuit judge to conduct a hearing to determine the reasonable costs, expenses, and attorney’s fees incurred by the Speaker, as provided by Rule 65(c). The citizens of this State should not be saddled with the costs of this litigation.

BEAM, J., JOINS THIS OPINION IN PART.

KING, JUSTICE,

DISSENTING:

¶ 26. Because I believe that an appellate decision in this case is premature, and consequently should remand the case to the circuit court to be properly developed, I respectfully dissent.

¶27. I would allow this matter to proceed in the circuit court, where a full record could be developed. See M.R.A.P. 10(a) (the content of the appellate record “shall consist of designated papers and exhibits filed in the trial court, the transcript of proceedings, if any, and ... a certified copy of the docket entries ... ”); Hardy v. Brock, 826 So.2d 71, 76 (Miss. 2002) (“Mississippi appellate courts may not consider information that is outside the record.”).

¶28. The majority decides this case ■without proper development in the circuit court. In order for the majority to find insufficient grounds to justify judicial intervention, it must determine whether the actions at issue were manifestly unconstitutional. Such a determination depends partially on the facts of the case, which were completely undeveloped in the circuit court. For example, Rep. Hughes has not had the opportunity to provide evidence that members of the House may be uninformed as to the text of the bills, or that the machine’s speed caused confusion or misunderstanding of the bills. Pleadings must only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Miss. R. Civ. P. 8(a)(1). At the pleading stage, a party is required only to place the defendant or respondent “on reasonable notice of the claims against” him and “to demonstrate that [the plaintiff or petitioner] has alleged a recognized cause of action upon which, under some set of facts, he might prevail.” Children’s Med. Grp., P.A. v. Phillips, 940 So.2d 931, 934 (Miss. 2006). Thus, Rep. Hughes was not required to allege or prove specific facts. It was thus not necessary at this juncture that Rep. Hughes conduct extensive investigations and discovery in order to determine whether or how many House of Representative members encountered problems due to the alleged incoherent reading of the bills. He needed only to make allegations sufficient to put Speaker Gunn on reasonable notice of his claims, which he has done. As such, the record should be developed in the circuit court, so that Rep. Hughes may be afforded the opportunity to gather evidence that the machine reading the bills resulted in problems for any representatives and/or was unconstitutional for any number of reasons, and for Speaker Gunn to be afforded the opportunity to gather evidence that it did and was not.

¶ 29. Moreover, Rep. Hughes clearly alleged critical harm in his petition, stating in that petition that “[b]y failing to follow the letter and spirit of the Mississippi Constitution and having the bills read aloud for the body in a manner so they can be understood, there is irreparable harm which has occurred and will continue to occur, all as a direct and proximate result of the actions and inactions of’ Speaker Gunn. But such was impossible for him to prove because this Court denied him the opportunity to develop his case in the circuit court.

¶ 30. Moreover, the circuit court was not only prevented from developing the facts in this case, it was not allowed to issue any sort of final judgment applying the law from which we can find error. It is the role of the judiciary to apply the law to the facts of a particular case; this Court does not issue advisory opinions and in cases such as this, the trial court is the trier of fact and the original court assigned to apply the law to the facts. See Ramsey v. Auburn Univ., 191 So.3d 102, 112 (Miss. 2016) (where circuit court did not address certain issues and the appellant essentially asked this Court to preemptively resolve those issues, this Court noted that it does not issue advisory opinions).

¶ 31. Because this Court decides these issues preemptively and prematurely, without affording the parties the opportunity to develop the facts, and without allowing the circuit court to apply the law to those developed facts, I respectfully dissent. I would remand the case for further proceedings in the circuit court.

KITCHENS, J., JOINS THIS OPINION.

      . Miss. Const, art. 1, § 1.

      . Miss. Const, art. 1, § 2.

      . Ex parte Wren, 63 Miss. 512, 533-34 (1886); Hunt v. Wright, 70 Miss. 298, 11 So. 608, 610 (1892).

      . Hunt, 11 So. at 610.

      . Id.

        . Ex parte Wren, 63 Miss. at 533-34 (emphasis added).

      . Tuck v. Blackmon, 798 So.2d 402, 404 (Miss. 2001).

      . Id.

      . Id. at 405.

      . Id.

      . Id. (emphasis added).

      . Dye v. State ex rel. Hale, 507 So.2d 332, 334-35 (Miss. 1987).

      . Tuck, 798 So.2d at 406.

      . Id. at 407.

      . Powell v. McCormack, 395 U.S. 486, 512, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969).

      . Nixon v. U.S., 506 U.S. 224, 228, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) (quoting Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)).

      . In this sense, this case is on all fours with the United States Supreme Court’s decision in Nixon v. United States. In Nixon, the United States House of Representatives brought articles of impeachment against Walter L. Nixon, Jr.—Chief Judge of the United States District Court for the Southern District of Mississippi—after Judge Nixon had been convicted of making false statements to a federal grand jury. When the House presented the articles to the United States Senate, the Senate invoked a procedural rule by which a committee of Senators reviewed the evidence supporting impeachment, and then the whole Senate reviewed a report on that evidence before voting to remove Nixon from office. Nixon sought judicial review, arguing that because the United States Constitution states that the Senate shall try all cases of impeachment, the Senate could not adopt a rule delegating that duty to a committee. Rather, he argued, the entire Senate must hear the evidence supporting impeachment. When the case reached the United States Supreme Court, that court considered whether Nixon’s constitutional claim implicated the political question doctrine. The Supreme Court concluded that the power to try impeachments had been committed to the Senate, not the judiciary. Nixon, 506 U.S. at 226-237, 113 S.Ct. 732.

      . Although. Rep. Hughes alleges that the bills were being read at an “unintelligible speed,’’ he does not dispute the affidavit of the Clerk of the House of Representatives, who swears that
      [a]t the beginning of the term every Member of the House, by taxpayer expense, is offered either a laptop computer or an iPad for purposes of access to the Internet. This technology is offered to give legislators a platform to research legislation, to read bills, and to do official work of the House. Every Member of the House accepted and received either a laptop computer or an iPad, except for the Speaker and Speaker Pro Tempore. The current text of every bill is available online at all times. All Members therefore have immediate access to the text of every bill as it is being read in the House. In addition to a laptop or iPad, legislators are offered hard copies of bills in committee and can obtain a hard copy of a bill, by request, on the House floor.

      . See M.R.C.P. 65(c) (requiring a TRO applicant to post security “in such sum as the court deems proper, for the payment of such costs, damages, and reasonable attorney’s fees as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained”).

      . To be clear, I agree, as evinced by the Corrected En Banc Order in this case filed on March 24, 2016, that the pleadings were insufficient under Rule 65 to grant a Temporary Restraining Order (TRO). The pleadings failed to meet the heightened pleading standards required by Rule 65 to obtain a TRO. But once the stages of the litigation go beyond Rule 65 and a TRO, what we are dealing with are general pleading issues, in other words, simple notice pleading. Thus, I clarify that we are no longer examining the pleadings under Rule 65, but examining them as sufficient under notice pleading standards.

      . Under Tuck, the court may examine legislative action where it exercises its constitutional responsibilities in a manifestly wrong manner that does critical harm to the legislative process. Maj. Op. ¶ 15.


source: Caselaw Access Project

author: FAIR, J.,

license: Public Domain

text:
    Robert J. DEVER a/k/a Robert Jordan Dever a/k/a Robert Dever a/k/a Robert Denver, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00142-COA
    Court of Appeals of Mississippi.
    DISPOSITION: 02/07/2017

      ROBERT J. DEVER (PRO SE), FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER, FOR APPELLEE
    BEFORE LEE, C.J., BARNES AND FAIR, JJ.
   FAIR, J.,

FOR THE COURT:

¶1. Robert Dever pled guilty to two counts of exploitation of a minor after sending child pornography to a police officer who had answered Dever’s bathroom-wall solicitations seeking to collaborate with other pedophiles. Before us on appeal is Dever’s second motion for post-conviction relief, where he contends, among other things, that his sentences have been rendered illegal by an intervening decision of the United States Supreme Court and that the statute under which he was convicted is defective. We find no merit to these contentions and thus conclude that Dever’s motion is barred as a successive writ. We affirm the circuit court’s dismissal of the PCR motion.

STANDARD OF REVIEW

¶2. The circuit court may summarily dismiss a PCR motion without an evi-dentiary hearing “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss. Code Ann. § 99-39-11(2) (Rev. 2015). To succeed on appeal, the petitioner must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss. 1999).

¶3. Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Id.

DISCUSSION

¶4. At the outset, we note that this is Dever’s second motion for post-conviction relief. A second PCR motion is ordinarily barred as a successive writ. See Miss. Code Ann. § 99-39-23(6) (Rev. 2015). There are certain exceptions outlined in the statute, such as intervening decisions of the Supreme Courts of Mississippi or the United States, newly discovered evidence, claims that the sentence has expired or probation or parole unlawfully revoked, and certain DNA-related claims. Id. Dever bears the burden of showing one of these exceptions applies. Jackson v. State, 860 So.2d 653, 661 (¶ 16) (Miss. 2003).

¶5. The Mississippi Supreme Court has also held that errors affecting fundamental constitutional rights are excepted from procedural bars. Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss. 2010). But mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar. Chandler v. State, 44 So.3d 442, 444 (¶ 8) (Miss. Ct. App. 2010). “There must at least appear to be some basis for the truth of the claim before the [procedural bar] will be waived.” Id.

1. Intervening Decision

¶6. Dever was sentenced to thirty years’ incarceration for each count of exploitation of a child, to be served day-for-day, with the sentences to run concurrently to each other. In his first two issues, Dever contends that the United States Supreme Court’s decision in Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), is an intervening decision which would have actually adversely affected the outcome of his sentences. See Miss. Code Ann. § 99-39-23(6). An intervening decision is one that “create[s] new intervening rules, rights, or claims that did not exist at the time of the prisoner’s conviction.” Patterson v. State, 594 So.2d 606, 608 (Miss. 1992).

¶7. In Johnson, the Supreme Court concluded that the “residual clause” of the Armed Career Criminal Act of 1984 was unconstitutionally vague. Johnson, 135 S.Ct. at 2557. The statute provided for enhanced penalties for violators with three or more prior convictions for “serious drug offenses” or “violent felonies.” Id. The residual clause added to the definition of violent felony one that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” See 18 U.S.C. § 924(e)(2)(B) (2012). The Supreme Court found that this particular definition of a violent felony was unconstitutionally vague. See Johnson, 135 S.Ct. at 2557.

¶8. Dever’s sentences were not enhanced under the residual clause of the Armed Career Criminal Act of 1984. His complaint seems to be founded, instead, on a statement in his presentence investigation report characterizing his offenses as “crimes of violence.” At the time of Dever’s offense Mississippi Code Annotated section 47—7—3(l)(f) (Rev. 2011) provided that only “nonviolent” offenders would be eligible for parole. But that statute expressly specified that sex crimes were excluded from the definition of nonviolent crimes. The present scheme produces the same result; Mississippi Code Annotated section 97-3-2(l)(r) (Rev. 2014) expressly enumerates exploitation of a child under section 97-5-33 (Rev. 2014) as a crime of violence.

¶9. Contrary to Dever’s claims, the United States Supreme Court in Johnson expressly held that its decision did not call into question the validity of sentencing enhancements to crimes of violence in general, only those offenses defined as violent crimes by the residual clause of the Armed Career Criminal Act of 1984. Johnson, 135 S.Ct. at 2563 (“Today’s decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony.”). The Mississippi statutory scheme is therefore not comparable to the residual clause found to be unconstitutionally vague in Johnson, and so Johnson has no application here.

1110. Moreover, at the time of Dever’s offenses, there was a statutory requirement that sentences for sex crimes be served day-for-day, independent of their classification as violent or nonviolent. See Miss. Code Ann. § 47-7-3(l)(b) (Rev. 2011). Dever would receive no relief from his sentences even if his offenses were not classified as crimes of violence.

¶11. Johnson is not an intervening decision that would have would have actually adversely affected the outcome of Dever’s conviction or sentence. The circuit court properly found this issue to be barred as a successive writ and without merit.

2.Sufficiency of the Indictment

¶12. Dever contends that his indictment failed to charge him with a crime. Such claims implicate a fundamental constitutional right and, if meritorious, would be excepted from the procedural bar. See Jefferson v. State, 556 So.2d 1016, 1019 (Miss. 1989).

¶13. Dever bases this novel claim on the fact that the words “exploitation of a child” do not appear in section 97-5-33, which defines the offenses commonly known as exploitation of a child.

¶14. Each count of Dever’s indictment alleged in relevant part that he “did wilfully, unlawfully and feloniously possess visual depictions of actual children, under the age of eighteen years, engaging in sexually explicit conduct.” The indictment clearly alleged violations of section 97-5-33(5). The indictment named the offense “exploitation of a child” and specified section 97-5-33(5). We note, also, that while section 97-5-33 gives no name for the offense, it is identified as “exploitation of a child” elsewhere in the code. See § 97-3-2(l)(r).

¶15. Dever points to no authority requiring a statute defining an offense to include the common name of the offense— or any name, for that matter; it is the conduct specified in the statute that constitutes the offense and determines the legal sufficiency of the charges, not the name to which it is referred. This contention is without merit.

3. Actual Innocence

¶16. Next, we address Dever’s claim of actual innocence. Dever was convicted of two counts of exploitation of a child under section 97-5-33(5). Section 97-5-33(5) forbids the possession of, or knowing access with intent to view, “any visual depiction of an actual child engaging in sexuaEy explicit conduct.” Dever now claims that the images he possessed were animations or “virtual images” rather than depictions of actual children.

¶17. This claim is unsupported by any evidence in the record and directly contradicts Dever’s own testimony at the guilty plea hearing, where he admitted to possession of images of “actual children.” His claims to the contrary are procedurally barred and without merit.

4. Voluntariness of Plea

¶18. Finally, Dever contends that his plea was involuntary because the trial judge never informed him that he would be subject to limitations on early release because his offense was a crime of violence under section 97-3-2. This claim fails on its face, as the mere fact that the trial judge failed to inform Dever of his parole ineligibility would not render the plea involuntary if Dever already knew from another source, such as his attorney. See, e.g., Jackson v. State, 192 So.3d 1143, 1147 (¶ 19) (Miss. Ct. App. 2016). Also, because Dever was already required to serve his sentences day-for-day because they were for sex crimes, he would have suffered no prejudice had he not been informed that the offenses were also crimes of violence. See Miss. Code Ann. § 47-7-3(l)(b) (Rev. 2011).

¶19. Furthermore, regardless of their merits, challenges to the voluntariness of a guilty plea do not implicate a fundamental constitutional right. See Smith v. State, 118 So.3d 180, 184 (¶ 12) (Miss. Ct. App. 2013). This claim is therefore barred as a successive writ.

¶20. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY, FIRST JUDICIAL DISTRICT, DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . Dever repeatedly identified himself as a pedophile—the message was left on the wall of a bathroom at a softball field and stated "pedophile looking for pedo-dads, uncles, and grandads to share kids five to twelve,” Dever’s email address contained the word “pedophile,” and he identified himself to undercover officers as a “proud pedophile.”

      . The presentence investigation report is not found in the record, but Dever’s attorney observed that it "refers to [exploitation of a child] as a violent crime,” which he said was "questionable, depending on how you’re looking at it.”


author: CARLTON, J.,

text:
    Lauron SMITH a/k/a Lauron Edward Smith a/k/a Lauron E. Smith, Appellant v. Christopher B. EPPS, MDOC Commissioner of Mississippi, Appellee.
    No. 2013-CP-02097-COA.
    Court of Appeals of Mississippi.
    Jan. 20, 2015.
    Lauron Smith, appellant, pro se.
    Office of the Attorney General by Anthony Louis Schmidt Jr., James M. Norris, attorneys for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Lauron Smith filed a motion for post-conviction relief (PCR) alleging illegal imprisonment based on his extradition from Michigan to Mississippi. Upon review, we acknowledge Smith also claims that the Mississippi trial court illegally revoked his post-release supervision (PRS), thus resulting in the extradition he alleges was illegal. In this appeal, Smith alleges his probation officer issued a waiver of indictment to kidnap him and that the Mississippi Department of Corrections (MDOC) commissioner tried to poison him. Smith now appeals the Rankin County Circuit Court’s dismissal of his PCR motion and the denial of his request for post-conviction relief.

FACTS

¶ 2. In March 2009, Smith pled guilty to the charge of the taking of a motor vehicle, and the trial court sentenced Smith to serve a term of six years in the custody of the MDOC, with six years suspended, followed by three years of reporting PRS. The record reflects that while on PRS, Smith absconded supervision, failed to pay his supervision fees, and failed to pay his court fines as ordered, and a warrant was issued for his arrest on November 18, 2011. On May 21, 2012, the trial court revoked Smith’s PRS and revoked the suspension of his sentence, ordering him to serve his original six-year sentence.

¶ 3. In September 2013, Smith filed a request for a writ of habeas corpus in the Rankin County Circuit Court, alleging illegal imprisonment related to his extradition from Michigan to Mississippi as a result of his probation revocation and violation of the conditions of his suspended sentence. On November 4, 2013, the trial court entered an order stating that Smith’s PCR motion “is denied and this cause dismissed.” The trial court also granted Smith’s application to proceed in forma pauperis at the trial court level. Smith’s appeal asserts that the revocation of his suspended sentence and PRS was illegal, and thus, his extradition for that conviction and sentence was illegal. Hence, Smith seeks post-conviction relief from an allegedly illegal sentence that he claims resulted from an illegal revocation of his suspended sentence and PRS.

¶ 4. Smith appeals to this Court, arguing that he was entitled to an evidentiary hearing on the issues of whether or not MDOC Commissioner Christopher Epps attempted to murder Smith by poisoning him and also whether Smith’s probation officer used the extradition waiver to kidnap Smith. Smith asserts that his probation officer had a personal vendetta against him. Smith accuses both his probation officer and Epps of destroying MDOC records pertaining to Smith. Smith also argues that he never executed a waiver of extradition in Michigan. Smith claims that jurisdiction was “dellquished [sic],” and that Mississippi lacks jurisdiction over him.

¶ 5. Upon review, we acknowledge Smith’s claims that Mississippi lacks jurisdiction over him because his extradition was illegal. Smith claims that he was extradited based upon an illegal revocation of his suspended sentence and PRS. Thus, we find that Smith, in his appeal, claims that his revoked suspended sentence for vehicle theft constitutes an illegal sentence and requests PCR therefrom. Jurisdiction for determining post-conviction relief lies in the trial court in the county where the allegedly illegal sentence was imposed. See Miss.Code Ann. § 99-39-7 (Supp.2014).

STANDARD OF REVIEW

¶ 6. “We review the dismissal or denial of a PCR motion for abuse of discretion. We will only reverse if the trial court’s decision is clearly erroneous. When reviewing questions of law, our standard is de novo.” Hughes v. State, 106 So.3d 836, 838 (¶ 4) (Miss.Ct.App.2012) (internal citations omitted).

DISCUSSION

¶ 7. Smith argues that the trial court erred in dismissing his PCR motion. The record reflects that Smith was convicted and sentenced in the Harrison County Circuit Court, but he filed his PCR motion in the Rankin County Circuit Court. Smith is currently incarcerated in Greene County. The record shows that at the time Smith filed his PCR motion, he was incarcerated in the Central Mississippi Correctional Facility in Rankin County.

¶ 8. Mississippi Code Annotated section 99-39-7 (Supp.2014) provides that a PCR motion must be filed in the trial court where the sentence was initially imposed. See Weeks v. State, 139 So.3d 727, 729 (¶ 7) (Miss.Ct.App.2013); McLamb v. State, 974 So.2d 935, 938 (¶ 14) (Miss.Ct.App.2008). This Court has held that a county fails to “acquire jurisdiction of [a petitioner’s] claims by virtue of the fact that he was, at the time of filing, incarcerated in the county.” Maston v. State, 768 So.2d 354, 355 (¶ 5) (Miss.Ct.App.2000). Accordingly, Smith filed his PCR motion with a circuit court lacking jurisdiction. See Stevenson v. Miss. Parole Bd., 120 So.3d 467, 470 (¶¶ 13-14) (Miss.Ct.App.2013) (affirmed trial court’s dismissal of petitioner’s PCR motion where petitioner filed the motion in the wrong circuit court).

¶ 9. After our review, we find no error by the trial court in dismissing Smith’s PCR motion for lack of jurisdiction. Accordingly, we decline to address the merits of this appeal and affirm the decision of the trial court. See Maston, 768 So.2d at 355 (¶ 5).

¶10. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . See Miss.Code Ann. § 99-39-5 (Supp.2014).

      . The Mississippi Uniform Post-Conviction Collateral Relief Act "repealed post-conviction use of habeas corpus and implemented a motion framework specifically for post-conviction collateral review of challenges to convictions or sentences, as opposed to pre-con-viction challenges.” Putnam v. Epps, 963 So.2d 1232, 1234 (¶ 5) (Miss.Ct.App.2007) (citing Edmond v. Miss. Dep't of Corr., 783 So.2d 675, 677 (¶ 8) (Miss.2001)) (citations omitted). Accordingly, Smith's petition is effectively a PCR motion, and we will refer to it as such in this opinion.

      . See Graham v. State, 85 So.3d 847, 850-51 (¶ 6) (Miss.2012).


author: ISHEE, J., CARLTON, J.,

text:
    The PUBLIC EMPLOYEES’ RETIREMENT SYSTEM OF MISSISSIPPI, Appellant. v. Vickie COMARDELLE, Appellee.
    No. 2013-SA-01462-COA.
    Court of Appeals of Mississippi.
    March 24, 2015.

      Jane L. Mapp, Jackson, attorney for appellant.
    William Owen Mayfield, Jackson, Angela E. Davis-Morris, Hattiesburg, attorneys for appellee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. The Public Employees’ Retirement System of Mississippi (PERS) appeals the decision of the Hinds County Circuit Court reversing the administrative decision to deny benefits to Vickie Comardelle. Co-mardelle applied for duty-related retirement disability benefits on May 25, 2008, after she twisted her ankle at work, which she claims prevented her from performing her required job duties. On June 22,2010, following two hearings on Comardelle’s application, PERS entered its order approving and adopting the PERS Disability Appeals Committee’s recommendation and findings of fact denying Comardelle’s request for disability benefits. Comardelle appealed the decision to the Hinds County Circuit Court, which found that PERS’s decision to deny Comardelle benefits was not based on substantial evidence and reversed the order. Aggrieved, PERS filed the instant appeal.

STATEMENT OF FACTS

¶2. Comardelle was employed as a teacher’s assistant by the Pearl River County School District for a little over five years. On October 7, 2003, Comardelle slipped and twisted her right ankle on some steps near the ladies’ lounge while at work. At the time she fell, Comardelle was teaching art as an activities teaching assistant. After she twisted her ankle, she was transferred to the health and life-skills class because it did not require as much standing and walking during the day, and by that time, she was using arm crutches to help her stand and walk. Comardelle first saw Dr. Simon Finger on October 9, 2003, for ankle pain, and she was diagnosed with an ankle sprain, prescribed Darvocet, and given an ankle corset to wear. Dr. Finger ordered an MRI and a nerve conduction study (NCS). The MRI was performed on November 23, 2003, and showed a small benign-looking cyst in the neck of the talus; the NCS was given on December 12, 2003, and came back with normal results.

¶ 3. On February 20, 2004, Dr. Keith Melancon performed surgery on her ankle, at which time he did a tarsal tunnel release and an anterior tarsal tunnel release at Southern Surgery Center in Hattiesburg, Mississippi, to take pressure off the nerves in Comardelle’s foot, and he removed the small benign cyst on her ankle. Comardelle followed up with Dr. Melancon every two months after the surgery. At each visit, Comardelle complained of pain in her right foot and ankle. On March 9, 2004, she went to the emergency room due to right lower leg pain and fever. On November 1, 2004, Dr. Melancon performed an MRI, which showed an area of resolving hemato-ma or cellulitis, but was otherwise normal. On November 9, 2004, Dr. Melancon saw Comardelle with complaints of nerve pain. He diagnosed her with early reflex sympathetic dystrophy (RSD), which occurred following her ankle sprain, and referred her to Dr. Thom Tarquinio with University Orthopaedics. Dr. Tarquinio performed a physical examination of Comardelle on February 10, 2005, and reviewed x-rays of her right ankle before he also diagnosed her with complex regional pain syndrome (CRPS), formerly known as RSD. Dr. Me-lancon then referred Comardelle to Dr. Matthew C. Wallack for a series of lumbar sympathetic blocks in March, April, and May 2005 to help relieve her pain. The sympathetic blocks seemed to relieve the pain for about two weeks after each injection. Dr. Wallack also diagnosed her with CRPS. Next, on January 12, 2006, Dr. Melancon referred Comardelle to Dr. Todd Sitzman at Advanced Pain Therapy LLC, who agreed with the CRPS diagnosis, and believed she would be a good candidate for a lumbar spinal neurostimulator. Comar-delle then received three more sympathetic blocks from Dr. Wallack in January, February, and March 2006, with the same initial successful results that she had in 2005; but the blocks wore off quickly.

¶ 4. Before implanting the lumbar spinal neurostimulator, Dr. Sitzman referred Co-mardelle to Angela Koestler Ph.D. for a psychological evaluation. Dr. Koestler opined that Comardelle could undergo the implantation procedure, and she diagnosed Comardelle with adjustment disorder with anxiety and depressed mood based on the symptoms of anxiety and depression she was experiencing due to her concerns about her persistent pain and diminished quality of life. On June 2, 2006, Dr. Sitz-man implanted a lumbar spinal neurosti-mulator that was successful in significantly reducing the pain Comardelle was experiencing in her right lower extremity for a couple of months. However, in September 2006, Comardelle began complaining of pain in her left buttock. After treating the site with no improvement, Dr. Sitzman recommended a pocket site revision, which was done on January 26, 2007. She continued to see Dr. Sitzman throughout 2007 with complaints of pain and weakness in her lower extremities.

¶ 5. Comardelle sought psychological counseling from Geralyn Datz Ph.D. to help her cope with her anxiety regarding her prognosis. Dr. Datz performed several tests and recommended she enroll in a twelve-session pain-management program and six sessions of individual psychotherapy for relaxation training. Dr. Datz diagnosed Comardelle with “Axis I—pain disorder with associated psychological factors and a general medical condition,” and Axis III—CRPS.

¶ 6. On October 1, 2008, PERS sent Comardelle to Dr. David Collipp of New-South NeuroSpine for an independent medical evaluation (IME). Dr. Collipp examined Comardelle and was of the opinion that there was no objective basis for the CRPS-I diagnosis. He believed that Dr. Melancon and Dr. Sitzman based their restrictions on subjective complaints; he did not think there were any restrictions for Comardelle, regarding her work injury or otherwise.

¶7. PERS also referred Comardelle to Julie Walker, an occupational therapist at Methodist Outpatient Rehabilitation, on January 19, 2009, for a functional capacity evaluation (FCE). Walker observed multiple times that Comardelle “demonstrated significant symptom magnification during evaluation.” Walker noted that Comar-delle had inconsistent tremors that were “volitional” at times and then absent at times. Walker stated that it was very difficult to make any recommendations because she believed Comardelle was magnifying and exaggerating her symptoms and because of the inconsistencies that she noted during Comardelle’s evaluation.

¶8. Comardelle next went to see Dr. Jeff Summers on April 17, 2009. Dr. Summers noted that Comardelle was very anxious and that she appeared to have “tremors” in her upper and lower extremities; however, “the tremors would extinguish completely with distraction.” On the day of her examination, Comardelle reported that her pain scale was a seven out of ten, and that, unless she was completely sedentary, her pain scores were never lower than that. Dr. Summers did not believe that Comardelle was suffering from CRPS at the time of the examination, but he did believe that she had “at some point.” He attributed her leg discoloration to the chronic use of her electric blanket, since the anterior thigh and leg that were in contact with the blanket were more discolored than the posterior leg where the blanket was lightly wrapped, and the backs of her thighs were not discolored at all. He also included in his report the fact that in 2005, which was after her accident, Comar-delle was able to run and swim with her children. Dr. Summers concluded by acknowledging that he did not have her most recent medical records, but he believed her problems involved a somatization or conversion disorder.

¶ 9. Finally, PERS ordered a complete psychiatric evaluation from forensic consultant John Montgomery. After evaluating Comardelle in his office on November 21, 2009, and reviewing Dr. Koestler’s psychological report, Dr. Montgomery found that, in his opinion, Comardelle’s primary psychiatric diagnosis was undifferentiated somatoform disorder and depression, secondary to a medical condition and pain disorder. He believed that Comardelle’s physical limitations were not consciously feigned, but appeared to be psychogenic in nature. He further stated that while “the onset of Ms. Comardelle’s symptoms appear[ed] to have occurred in the context of two work-related injuries[,] it [was his] opinion that other interpersonal and psychological factors [were] likely contributing to her level of distress and impairment.” Finally, Dr. Montgomery concluded that “[i]n her current state, Ms. Comardelle [was] not able to pei’form the duties of her former profession. To what extent her psychogenic/somatoform symptoms contribute[d] to her overall disability status [was] unknown.”

¶ 10. The Disability Appeals Committee held two hearings on Comardelle’s application for benefits on September 18, 2009, and March 5, 2010. PERS entered its order approving and adopting the Committee’s recommendation and findings of fact denying Comardelle’s request for disability benefits on June 22, 2010. Comardelle appealed this decision to the Hinds County Circuit Court. The circuit court found the PERS Board of Trustees’ (Board) decision to be arbitrary and capricious and reversed the decision. Aggrieved, PERS filed this appeal.

STANDARD OF REVIEW

¶ 11. Uniform Rule of Circuit and County Court Practice 5.03 limits this Court’s ability to reverse an agency’s decision unless the decision was: (1) not supported by substantial evidence, (2) arbitrary and capricious, (3) beyond the agency’s power to make, or (4) in violation of the complainant’s statutory or constitutional rights. Case v. Pub. Employees' Ret. Sys., 973 So.2d 301, 310 (¶ 20) (Miss.Ct.App.2008). The Mississippi Supreme Court has held: “the question here is not whether there was evidence in support of [the claimant’s] disability, but whether there was substantial evidence to support the finding of the administrative agency. The standard of review limits this Court to reviewing the lower court’s decision to determine whether the record can support this finding.” Thomas v. Pub. Employees’ Ret. Sys. of Miss., 995 So.2d 115, 120 (¶ 21) (Miss.2008) (quoting Pub. Employees’ Ret. Sys. v. Dishmon, 797 So.2d 888, 892 (¶ 12) (Miss.2001)).

DISCUSSION

¶ 12. Before discussing the merits of this case, we will address PERS’s motion to strike portions of Comardelle’s brief and attached exhibits. The Mississippi Supreme Court passed the motion to this Court for consideration with the merits of the appeal, and it is now time for this Court to make a ruling. PERS contends that Comardelle included matters in her brief and exhibits that were outside of the record at the administrative hearing or circuit court level. Specifically, PERS argues that pages twenty-two and twenty-three of Comardelle’s brief contain the results of Comardelle’s Mississippi Workers’ Compensation and United States Social Security Administration claims. Comar-delle concedes that the results post-date the PERS administrative proceedings and the PERS Board of Trustees’ final order denying Comardelle’s request for benefits; however, Comardelle argues that the workers’ compensation claim was part of the record before the Hinds County Circuit Court when it issued its opinion and order on August 9, 2013.

¶ 13. Mississippi Code Annotated section 25-11-120(2) (Rev.2010) makes it clear that an appeal of this nature “shall be made solely on the record before the board.” It is well established that “[tjhis Court does not rely on assertions made in briefs, but only on facts preserved within a record certified by law.” Burnett ex rel. Islam v. Burnett, 792 So.2d 1016, 1019 (¶ 8) (Miss.Ct.App.2001). Comardelle’s PERS hearing was held on September 18, 2009, and the PERS Board of Trustees’ final order denying benefits was filed on June 22, 2010. The order approving settlement from the Workers’ Compensation Commission was issued on October 20, 2011, and the final decision of the Social Security administrative law judge finding Comardelle disabled was issued January 11, 2013. Upon reviewing the record, this Court finds no evidence that the circuit court considered these results or any other evidence outside of the record when making its decision. There is no reference related to either claim in the order handed down from the Hinds County Circuit Court. Accordingly, we hereby grant PERS’s motion to strike portions of Co-mardelle’s brief.

I. WHETHER THE DENIAL OF BENEFITS WAS SUPPORTED BY SUBSTANTIAL EVIDENCE.

¶ 14. As set forth by the standard of review, this Court’s purpose is to determine whether there was substantial evidence in the record to support PERS’s finding that Comardelle was not entitled to disability benefits. The phrase “substantial evidence” requires more than a “mere scintilla” or suspicion. Pub. Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 425 (¶ 13) (Miss.2000). It has been defined by the Mississippi Supreme Court as “such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Id (citation omitted). Mississippi Code Annotated section 25—11— 113(l)(a) (Supp.2014) contains two requirements when making a disability determination. First, after evaluating the medical evidence, the medical board must “certify] that the member is mentally or physically incapacitated for the further performance of duty, that the incapacity is likely to be permanent, and that the member should be retired[.]” Id. Next, the medical board must apply the statute’s definition of disability:

For the purposes of disability determination, the medical board shall apply the following definition of disability: the inability to perform the usual duties of employment or the incapacity to perform such lesser duties, if any, as the employer, in its discretion, may assign without material reduction in compensation, or the incapacity to perform the duties of any employment covered by the Public Employees’ Retirement System ... that is actually offered and is within the same general territorial work area, without material reduction in compensation.

Id.

¶ 15. The Board found that Comar-delle’s doctors failed to establish that her complaints were supported by medical findings. The Board looked to the fact that Dr. Sitzman, Dr. Summers, and Dr. Collipp stated that Comardelle’s RSD exhibited unusual and atypical symptoms, and found the more accurate diagnosis to be somatization. PERS points out that Comardelle fell and twisted her ankle in October 2003 and continued to work full-time for nearly five additional years until May 2008 when her teaching position was converted to a position she was not qualified to teach because she lacked the proper certification. It was at that time that Co-mardelle decided she was going to retire. On appeal, the circuit court judge found that PERS failed to present any evidence that Comardelle was not disabled pursuant to section 25-11-113. As a result, the circuit court found that PERS’s conclusion was not based on substantial evidence, and issued an order reversing PERS’s decision.

¶ 16. Upon reviewing the extensive record in this case, this Court finds that PERS’s decision that Comardelle was not permanently disabled was, in fact, supported by substantial evidence. First, when Dr. Collipp examined Comardelle on October 1, 2008, he found that “[h]er EMG, MRI, and x-rays were normal,” her restrictions seemed to be subjective, and there was no objective basis for the CRPS-I diagnosis. Next, Julie Walker complained after performing the FCE that she was unable to make any recommendations due to Comardelle’s inconsistencies and exaggerations throughout the evaluation. Finally, Dr. Summers stated after examining her on April 17, 2009, that although she may have had CRPS in her right lower extremity in the past, he could not find any current signs or symptoms consistent with CRPS. Based on the foregoing, it appears that PERS’s conclusion was consistent with testimony from multiple healthcare providers. As such, we cannot say that PERS’s decision was not based on substantial evidence, nor was it arbitrary or capricious.

II. WHETHER THE DENIAL OF DUTY-RELATED DISABILITY BENEFITS WAS SUPPORTED BY SUBSTANTIAL EVIDENCE.

¶ 17. PERS also argues that, if this Court finds Comardelle to be disabled, Mississippi Code Annotated section 25-11-114(6) (Supp.2014) contains two additional requirements that must be met in order for her to be eligible for duty-related benefits. Section 25-11-114(6) states:

Regardless of the number of years of creditable service, upon the application of a member or employer, any active member who becomes disabled as a direct result of an accident or traumatic event resulting in a physical injury occurring in the line of performance of duty, provided that the medical board or other designated governmental agency after a medical examination certifies that the member is mentally or physically incapacitated for the further performance of duty and the incapacity is likely to be permanent, may be retired by the board of trustees on the first of the month following the date of filing the application but in no event shall the retirement allowance begin before the termination of state service.

¶ 18. As previously discussed, it is undisputed that Comardelle twisted her right ankle while at work. Comardelle argues that her twisted right ankle caused her to suffer from CRPS, which has left her disabled. However, PERS points out that several of the examining physicians, as well as an occupational therapist, did not believe Comardelle’s diagnosis of CRPS was supported by medical findings. After thoroughly reviewing the medical records in this case, we find ample evidence to support PERS’s findings indicating that Comardelle’s condition is not disabling in accordance with the statute. With regard to this issue, this Court finds, once again, that PERS’s decision was supported by substantial evidence and was neither arbitrary nor capricious.

CONCLUSION

¶ 19. This Court finds that PERS’s decision to deny duty-related retirement disability benefits to Comardelle was based on substantial evidence and was neither arbitrary nor capricious. The judgment of the Hinds County Circuit Court is hereby reversed, and the judgment of the Board is reinstated.

¶ 20. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

GRIFFIS, P.J., BARNES, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., AND IRVING, P.J.

CARLTON, J.,

dissenting:

¶21. I respectfully dissent from the majority’s decision because I would affirm the circuit court’s finding that the denial of duty-related retirement disability benefits was not based upon substantial evidence. Like the circuit court, I find that PERS’s denial of Comardelle’s benefits was arbitrary and lacked support by substantial credible evidence. I also respectfully submit that PERS’s decision was based upon speculation.

¶ 22. “Employees of the State of Mississippi are eligible for regular disability benefits and duty-related benefits.” Pub. Employees’ Ret. Sys. v. Trulove, 954 So.2d 501, 503 (¶ 11) (Miss.Ct.App.2007). To qualify for regular disability benefits, a claimant must possess at least four years of service. Miss.Code Ann. § 25-11-113(l)(a) (Supp.2014). In the present case, the record reflects that Comardelle possessed 5.25 years of service at the time she submitted her retirement application.

¶ 23. Section 25-ll-113(l)(a), which establishes the legal requirements for proving a disability, defines disability as follows:

[T]he inability to perform the usual duties of employment or the incapacity to perform such lesser duties, if any, as the employer, in its discretion, may assign without material reduction in compensation, or the incapacity to perform the duties of any employment covered by the Public Employees’ Retirement System (Section 25-11-101 et seq.) that is actually offered and is within the same general territorial work area, without material reduction in compensation.

¶ 24. To qualify for duty-related disability benefits, a claimant bears the burden “to show that her disability is a direct result of an accident or traumatic event which occurred while she was performing her job duties.” Trulove, 954 So.2d at 503 (¶ 12) (citing Miss.Code Ann. § 25-11-114(6) (Supp.2014)). In pertinent part, section 25-11-114(6), provides:

Regardless of the number of years of creditable service, upon the application of a member or employer, any active member who becomes disabled as a direct result of an accident or traumatic event resulting in a physical injury occurring in the line of performance of duty, provided that the medical board or other designated governmental agency after a medical examination certifies that the member is mentally or physically incapacitated for the further performance of duty and the incapacity is likely to be permanent, may be retired by the board of trustees on the first of the month following the date of filing the application but in no event shall the retirement allowance begin before the termination of state service.

Our statutory law further provides that “[permanent and total disability resulting from a cardiovascular, pulmonary[,] or musculoskeletal condition that was not a direct result of a traumatic event occurring in the performance of duty shall be deemed an ordinary disability.” Miss. Code Ann. § 25-ll-114(7)(a) (Supp.2014).

¶25. To qualify for regular disability benefits, Comardelle only bore the burden to prove that she possessed at least four years of service and that she was no longer able to perform her duties as a teacher’s assistant. I find the record reflects that Comardelle met her burden under statutory law to qualify for regular disability benefits. In addition, the record shows that PERS’s decision denying Comardelle’s request for duty-related disability benefits was not supported by substantial evidence but was instead based on insufficient speculation.

¶ 26. The record shows that Comardelle worked as a teacher’s assistant for the Pearl River County School District for over five years. Comardelle therefore satisfied the requirement for regular disability benefits regarding the duration of her employment. I now turn to a review of the evidence showing that Comardelle also satisfied her burden to prove a duty-related disability.

¶ 27. The record contains the certification by Comardelle’s employer of her retirement-benefit application. The record also contains Comardelle’s “First Report of Injury or Illness.” This form reflects that Comardelle notified her employer on October 7, 2003, the same date her injury occurred, that she slipped on the steps of the elementary-school campus and twisted her ankle. In addition to the “First Report of Injury or Illness,” the record also contains a “Pearl River County School District Employee Accident Report,” which certifies Comardelle’s work injury. As reflected in the record, this form is dated October 7, 2003, the same date as Comar-delle’s injury and bears the signature of Elaine Welsh, the principal of the elementary school where Comardelle worked.

¶ 28. The record also includes Comar-delle’s resignation form, which was signed by Comardelle, Welsh, and the school superintendent. The resignation application stated that Comardelle retired from her position as a teacher’s assistant due to her disability injury. In the attached “PERS Form 8,” which is a medical-information form, Comardelle further provided that her disability first prevented her from performing her job on May 19, 2008, and that her disability was as follows: “(RSD) Legs will not work[.]” Comardelle explained on the form that she stopped working because of daily muscle spasms and pain and because her legs could not withstand the long hours on her feet. Comardelle further stated that her legs would stop working and would become painful and swollen. Comardelle also provided a summary of the physicians that had treated her in the past three to five years and the treatments she had received.

¶ 29. An application of relevant caselaw to the evidence in the record show that PERS’s decision was not supported by substantial evidence and that Comardelle indeed met her burden of proof. In Public Employees’ Retirement System v. Marquez, 774 So.2d 421, 427 (¶ 22) (Miss.2000), the Mississippi Supreme Court observed that medical diagnoses by licensed physicians constitute objective, rather than subjective, evidence of disability. The Marquez court found that PERS failed to adequately explain why it rejected objective medical evidence of the claimant’s disability. Id. at 429 (¶¶ 31-33). In reaching its decision, the supreme court stated that, “[i]f medical diagnoses by licensed physicians are to be labeled ‘subjective’ evidence of medical ailments, it is unclear what PERS would consider to be ‘objective’ evidence.” Id. at 427 (¶ 22).

¶ 30. Like the claimant in Marquez, Comardelle provided recent medical evidence to establish that she was incapable of performing her duties as a teacher’s assistant. In finding that Comardelle met her burden of proof, I must acknowledge that jurisprudence establishes that substantial evidence means more than a mere scintilla or suspicion. See Henley v. Pub. Employees’ Ret. Sys. of Miss., 26 So.3d 1108, 1110 (¶ 13) (Miss.Ct.App.2010). Rather, the evidence must provide “an adequate basis of fact from which the fact in issue can be reasonably inferred.” Id. (citation omitted).

¶ 31. Substantial evidence that supports an agency’s decision is, “in fact, the absence of credible evidence presented on behalf of the party having the burden of proof on the issue that compels the denial of relief.” Id. (citation omitted). As previously discussed, PERS cannot simply choose to ignore uncontroverted evidence of a treating physician. See Pub. Employees’ Ret. Sys. v. Dearman, 846 So.2d 1014, 1018 (¶ 11) (Miss.2003). Cf. Pub. Employees’ Ret. Sys. v. McDonnell, 70 So.3d 264, 269-71 (¶¶ 13-15) (Miss.Ct.App.2011) (finding that PERS’s decision denying disability benefits lacked support by substantial evidence). In the present case, the record contains substantial objective medical evidence to support Comardelle’s disability.

¶ 32. Comardelle initially reported twisting her right ankle and experiencing foot pain on October 7, 2003, when she slipped at work. As stated, the record reflects that Comardelle’s employer certified both her accident report and her disability-retirement application. The record also reflects that Comardelle’s employer raised no dispute as to whether Comar-delle fell during the course and scope of her work. In addition, Comardelle’s employer failed to dispute Comardelle’s claimed work-related injury and disability.

¶ 33. The objective medical evidence in the record reflects that Comardelle met her burden to provide substantial evidence to support her disability retirement application and claim. As reflected in the record, Dr. Finger, Comardelle’s initial treating physician, found Comardelle’s x-rays to be normal and diagnosed Comardelle with an ankle sprain. After ordering an MRI, Dr. Finger made an objective finding that ComardeEe had a small cyst in the neck of the talus. When Comardelle returned to Dr. Finger on November 26, 2003, he reported that she presented with complaints of tenderness in her right ankle and numbness in her right foot. Although the NCS study returned normal results, Dr. Finger thought Comardelle might have flexor hal-lucis tendonitis and gave her a steroid injection.

¶ 34. On January 6, 2004, Dr. Melancon conducted an initial examination of Comar-delle due to her complaints of weakness, pain, and swelling in her right ankle. Dr. Melancon injected Comardelle with Lido-caine after finding that Comardelle presented with anterolateral capsulitis and tarsal tunnel syndrome. Tarsal tunnel syndrome results from an impingement or compression of the nerves going through the tarsal tunnel of the foot, which causes a painful foot condition and cuts off blood flow to the affected nerves.

¶ 35. On February 3, 2004, Comardelle underwent another MRI and returned to Dr. Melancon. The record reflects that Dr. Melancon opined that several areas of Comardelle’s ankle appeared suspicious for anterolateral dome lesion and possible internal derangement of the ankle joint. Based on his objective medical findings and diagnosis, Dr. Melancon recommended that Comardelle undergo tarsal tunnel surgery to release the nerves compressed in her ankle,

¶ 36. On February 20, 2004, Dr. Melan-con performed an ankle nerve repair surgery to release the compression of the nerves in the tarsal tunnel of Comardelle’s foot. Following the surgery, Comardelle’s pain continued, and Dr. Melancon eventually diagnosed her with RSD, which is a nerve disorder. See Neill v. Waterway Inc./Team Am., 994 So.2d 196, 198 (¶ 8) (Miss.Ct.App.2008) (noting that claimant’s physician found that claimant suffered from RSD, a nerve dysfunction, which caused claimant’s carpal tunnel pain); Howard v. Howard, 968 So.2d 961, 970-71 (¶¶ 16-18) (Miss.Ct.App.2007) (acknowledging evidence that husband’s RSD, which was a nerve disorder, caused pain, sweating, loss of feeling, and numbness, and that the RSD resulted as a complication of the husband’s carpal tunnel release surgery).

¶ 37. On March 9, 2004, less than a month after her ankle nerve repair surgery, Comardelle presented to Forrest General Hospital’s emergency room with complaints of right lower leg pain and fever. The objective medical observations documented in the emergency-room physician’s records show that Comardelle suffered minimal swelling in her right calf, her surgical incision appeared inflamed, and her right lower extremity seemed cool to the touch. Comardelle also reported chronic decreased sensation in her lower right extremity. The emergency-room medical records revealed further objective medical evidence, including the fever, swelling, inflammation, and cool skin temperature that Comardelle experienced at the time. At a post-surgical follow-up appointment, Dr. Melancon observed that Comardelle’s scar was likely trying to contract, which caused her to walk improperly on the outside of her foot. Dr. Melancon further observed that walking on the outside of her foot caused Comardelle to experience pain in her right foot and ankle.

¶38. On November 1, 2004, another MRI was ordered. The results showed abnormal signal within the subcutaneous fat, which Comardelle’s doctor thought might represent an area of resolving he-matoma or cellulitis. On November 9, 2004, Comardelle reported severe nerve pain without swelling of her ankle. The record also reflects that the skin on Co-mardelle’s leg and foot had begun to peel. I submit that we must acknowledge that this evidence in Comardelle’s medical records regarding the abnormalities captured by the MRI and the peeling of Comar-delle’s skin add to the objective medical evidence supporting Comardelle’s claim. Following these developments, Dr, Melan-con stated his belief that Comardelle had early RSD. He prescribed Comardelle Neurontin and referred her to Dr. Tarqui-nio.

¶ 39. On January 4, 2005, Dr. Melancon injected Comardelle’s right ankle with Li-docaine. On February 10, 2005, Comar-delle saw Dr. Tarquinio, who diagnosed her with CRPS. For pain relief, Comar-delle began extensive physical therapy and underwent several lumbar sympathetic blocks. In 2006, Dr. Sitzman inserted Co-mardelle with a temporary electric nerve stimulator. Comardelle was able to stop taking narcotics for about a month because the stimulator alleviated her pain. However, the relief was temporary, and the pain returned after several months. Comar-delle also began experiencing pain in her left leg and hip, which Dr. Sitzman attributed to an exacerbation of Comardelle’s RSD. Dr. Sitzman later found that Comar-delle’s RSD, which had begun in her right ankle, had progressed to her left lower extremity as well.

¶ 40. The record reflects that Comar-delle reported the pain from her RSD continued to move up her right leg. The record also reflects that Comardelle presented with complaints of leg tremors, which she stated increased with normal activity such as walking, standing, or sitting for too long. Comardelle further complained that her legs would turn inward and her toes would curl upward. The record shows that Comardelle stated she wore high-topped tennis shoes, except when bathing, and that Dr. Melancon had given her a boot to wear at night to help keep her legs straight. Comardelle also provided that, if her toes continued to curl upward, she would be unable to stand and might have to have her leg amputated. In addition, Comardelle stated that she used a wheelchair on a weekly basis.

¶41. Dr. Datz, a psychologist, diagnosed Comardelle with “Axis I—pain disorder with associated psychological factors and a general medical condition” and Axis III—CRPS. Comardelle returned to work after a six-week absence. She taught art until May 2008, when she quit due to the pain and her other symptoms. The record reflects Comardelle’s statement that she tried to use crutches at work but that her fingers would become cold when writing or typing.

¶42. On October 1, 2008, PERS requested that Dr. Collipp perform an IME on Comardelle. Dr. Collipp found that the results of Comardelle’s x-rays and MRIs were normal. Despite the prior diagnoses provided by Dr. Melancon, Dr. Sitzman, and Dr. Datz, and despite the objective medical findings documented in the record, Dr. Collipp found no objective basis for the CRPS diagnosis. He also opined that Co-mardelle lacked objective evidence of her subjective leg pain. On April 17, 2009, Dr. Summers also performed an IME on Co-mardelle. In contrast to Dr. Collipp, Dr. Summers did not exclude a diagnosis of RSD. Instead, Dr. Summers opined that he did not believe Comardelle suffered from RSD at the time of his exam, but he thought she might have had RSD in her right lower leg after her injury.

¶ 43. The record shows that, in denying Comardelle’s request for disability benefits, PERS and the Disability Appeals Committee asserted that Comardelle’s symptoms lacked visible and objective supporting evidence and that her symptoms appeared to result from somatization. However, PERS’s decision to deny Comardelle disability benefits failed to rebut or even address the objective medical evidence in the record that supported Co-mardelle’s injury and disability. PERS’s decision also disregarded the objective diagnoses made by Dr. Melancon, Dr. Sitz-man, and Dr. Datz.

¶ 44. After reviewing the record, I find that PERS and the Disability Appeals Committee denied Comardelle’s request for disability benefits based upon Dr. Col-lipp’s flawed diagnosis of somatization and the FCE asserting that Comardelle’s complaints of increased pain and shaking were attributable to somatization. In attributing Comardelle’s symptoms to soma-tization disorder, Dr. Collipp and Dr. Summers, who both performed IMEs on Comardelle, failed to exclude the diagnoses opined by Dr. Melancon, Dr. Sitz-man, and Dr. Datz that Comardelle’s increased pain and other symptoms stemmed from RSD etiology and the exacerbation of that condition. Dr. Collipp and Dr. Summers also failed to follow the diagnostic criteria of somatic symptom disorder.

¶ 45. In the present case, PERS’s decision lacked supporting credible evidence since PERS ignored the objective medical evidence and diagnoses in the record from various treating physicians and instead relied on a diagnosis of a psychological condition that failed to exclude other etiologies for Comardelle’s complaints, as required by the pertinent diagnostic criteria. The record contains credible evidence to show that Comardelle suffered an accidental ankle injury at work, resulting in a painful foot condition, ankle nerve repair surgery, RSD, increased pain, and ultimately, her disabling condition. Moreover, the record reflects that Comardelle’s claim for duty-related disability benefits is supported by substantial credible evidence, including substantial objective medical evidence, of a resulting RSD diagnosis and increased pain due to exacerbation of the RSD.

¶ 46. Based on a review of the record, I respectfully find that the decision by PERS and the Disability Appeals Committee denying Comardelle’s claim for duty-related disability benefits was arbitrary and capricious and lacked support by substantial credible evidence in the record. I further submit that we should affirm the circuit court’s reversal of PERS’s decision.

LEE, C.J., AND IRVING, P.J., JOIN THIS OPINION.

      . See generally Pub. Employees’ Ret. Sys. v. Finklea, 862 So.2d 569, 575 (¶ 23) (Miss.Ct.App.2004) (finding PERS’s denial of disability benefits arbitrary and capricious because the claimant presented substantial evidence to show her condition prevented her from performing the usual duties of her employment); Pub. Employees’ Ret. Sys. v. Thomas, 809 So.2d 690, 696 (¶ 23) (Miss.Ct.App.2001) (affirming the trial court’s reversal of PERS’s decision to deny disability benefits).

      . See Trulove, 954 So.2d at 505 (¶ 16) (finding that the claimant satisfied her burden of establishing she was disabled by an on-the-job injury when she provided the Disability Appeals Committee with her medical records and her incident report).

      . The record reflects that Elaine Welsh, the principal of the elementary school where Co-mardelle worked, certified the application.

      . The record reflects that Dr. Melancon and Dr. Tarquinio diagnosed Comardelle with RSD, which is a nerve disorder where severe pain becomes widespread from the trauma site.

        . See also Pub. Employees’ Ret. Sys. v. Dearman, 846 So.2d 1014, 1018 (¶ 11) (Miss.2003) (finding that the medical evidence of disability provided by the claimant’s examining physician was objective evidence and that the record was devoid of any evidence to show the claimant lacked a disability).

      . As noted in the majority’s opinion, RSD refers to reflex sympathetic dystrophy.

      . As noted in the majority’s opinion, CRPS refers to complex regional pain syndrome, which was formerly known as RSD.

      . Dr. Datz, a psychologist, diagnosed Comar-delle with "Axis I—pain disorder with associated psychological factors and a general medical condition" and Axis III—CRPS. As previously stated, the record reflects that CRPS refers to complex regional pain syndrome and was formerly identified as RSD.

      . The medical testimony supporting a diagnosis of somatoform disorder was provided when criteria from the previous edition of the Diagnostic and Statistical Manual of Mental Disorders, the DSM-IV, were relied upon. As explained by the DSM-V, the disorder was overdiagnosed due to an overemphasis of medically unexplained symptoms. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 309 (5th ed.2013). Furthermore, the DSM-V provides that "[i]t is not appropriate to give an individual a mental disorder diagnosis solely because a medical cause cannot be demonstrated.” Id, However, even under the previous criteria used in the DSM-IV, a physician should first rule out general medical conditions and substance-induced etiologies for an individual’s claimed symptoms before reaching a diagnosis of somatoform disorder. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 485 (4th ed. text revision 2000). The DSM-V also provides that somatic symptoms may be concurrently associated with another medical condition. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 311 (5th ed.2013). For example, "an individual may become seriously disabled by symptoms of somatic symptom disorder after an uncomplicated myocardial infarction even if the myocardial infarction itself did not result in any disability.” Id. The DSM-V further explains that, when dealing with the related disorder of illness anxiety disorder, an "individual’s distress emanates not primarily from the physical complaint itself but rather from his or her anxiety about the meaning, significance, or cause of the complaint (i.e., the suspected medical diagnosis).” Id. at 315.


author: ISHEE, J.,

text:
    John T. WALKER, Appellant v. Mary M. WALKER, Appellee.
    No. 2013-CA-01545-COA.
    Court of Appeals of Mississippi.
    March 24, 2015.

      Felecia Perkins, Jessica Nicole Ayers, Jackson, attorneys for appellant.
    Mary M. Walker, appellee, pro se.
    Before LEE, C.J., ISHEE and FAIR, JJ.
   ISHEE, J.,

for the Court:

¶ 1. John T. Walker and Mary M. Walker were married on July 6, 1988, and they separated in April 2011. On June 7, 2012, Mary filed for a divorce on the ground of habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. The Jefferson Davis County Chancery Court entered its judgment of divorce on July 1, 2013. The chancellor also entered a qualified domestic relations order (QDRO) on July 1, 2013. Aggrieved, John appeals asserting the following issues: whether the trial court erred when it denied John’s motion for findings of fact and conclusions of law; whether the trial court committed manifest error in granting Mary a divorce on the ground of habitual cruel and inhuman treatment; whether the trial court erred when it divided the marital assets and ordered John to pay permanent alimony, and to pay for Mary’s housing, medical insurance, and uncovered medical costs; and whether the trial court erred when it ordered John to pay Mary’s attorney’s fees.

FACTS AND PROCEDURAL HISTORY

¶2. John and Mary were married on July 6, 1988. While they were married, they had three children. John Walker Jr. was born on October 16, 1990, Essence Walker was born on May 30, 1995, and Malachi Walker was born on May 22, 2008. While they were married, John also was thought to have had two children that were the result of extramarital affairs, but they later discovered one of the children was not his. John and Mary separated in April 2011, and John moved out of the mobile home in which they had lived together as a family since 1995. He moved in with a female roommate, with whom John testified he did not have a romantic relationship, but simply paid her rent; however, he was unable to afford the rent, so he moved back in with his mother at her home.

¶3. In June 2011, John and Mary’s daughter, Essence, developed an illness, which resulted in paralysis of her left side. Essence became bedridden and totally dependent on someone for all types of care. Because John’s mother’s house is not wheelchair accessible, Mary provides all of Essence’s care. On June 7, 2012, Mary filed a complaint for divorce and sought temporary relief. A trial was held in March 2013, and the chancellor entered a judgment of divorce on July 1,2013.

STANDARD OF REVIEW

¶ 4. When reviewing a chancellor’s ruling, this Court utilizes a limited standard of review. Stribling v. Stribling, 906 So.2d 863, 867 (¶ 13) (Miss.Ct.App.2005). We will not reverse if the chancellor’s findings are supported by substantial evidence. Id. This Court will not disturb a chancellor’s findings unless they were manifestly wrong or clearly erroneous, or the chancellor applied an erroneous legal standard. Id.

ISSUES

¶ 5. John submitted his appellant’s brief asserting numerous issues on May 16, 2014; however, Mary did not file an appel-lee’s brief in response. When an appellee fails to file a brief, this Court is left with two options:

The first alternative is to take the appel-lee’s failure to file a brief as a confession of error and reverse. This should be done when the record is complicated or of large volume and the case has been thoroughly briefed by the appellant with apt and applicable citation of authority so that the brief makes out an apparent case of error. The second alternative is to disregard the appellee’s error and affirm. This alternative should be used when the record can be conveniently examined and such examination reveals a sound and unmistakable basis or ground upon which the judgment may be safely affirmed.

Richardson v. Richardson, 856 So.2d 426, 428-29 (¶ 11) (Miss.Ct.App.2003) (quoting Miller v. Pannell, 815 So.2d 1117, 1119 (¶ 7) (Miss.2002)). “While automatic reversal is not required in cases where the appellee does not file a brief, the appellant’s argument should at least create enough doubt in the judiciousness of the trial court’s judgment that this Court cannot say with confidence that the case should be affirmed.” Pearson v. Pearson, 121 So.3d 266, 268 (¶ 7) (Miss.Ct.App.2013).

¶ 6. In order to determine whether John’s argument “creates enough doubt in the judiciousness of the chancellor’s judgment,” id. at (¶ 8), we must analyze the issues before the Court.

I. Whether the chancellor erred when he denied John’s motion for findings of fact and conclusions of law.

¶ 7. John argues that the chancellor erred in denying his motion for findings of fact and conclusions of law. He contends that when the chancellor entered his judgment of divorce on July 1, 2013, he failed to make any general or specific findings of fact and conclusions of law on the following rulings: (1) granting the divorce on the ground of habitual cruel and inhuman treatment; (2) ordering that John pay Essence’s $920.61 medical bill from Prentiss Family Practice; (3) ordering that John pay Essence’s $504.30 medical bill; (4) ordering that John pay for Mary’s knee injections; (5) ordering that John maintain medical insurance for Mary and the children, and that he pay any and all costs over the insurance; (6) awarding Mary one-half of John’s retirement benefits from the U.S. Postal Service; (7) awarding Mary one-half of John’s retirement benefits from the U.S. Military; (8) ordering John to pay Mary’s current rent and to continue to pay each month up to $500 for future housing for Mary; (9) awarding John the marital home, but if it is sold, ordering him to split the profits with Mary; (10) awarding Mary periodic alimony of $400 each month, with the amount to change if Mary secures employment; and (11) awarding Mary $5,000 in attorney’s fees.

¶ 8. “Where a chancellor has applied the correct legal standard and made findings of fact which are supported by substantial evidence, the appellate court will not reverse the decision.” Swiderski v. Swiderski, 18 So.3d 280, 284 (¶ 10) (Miss.Ct.App.2009). Specifically, John filed his motion for findings of fact and conclusions of law pursuant to Mississippi Rule of Civil Procedure 52-. Rule 52(a) reads as follows: “In all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon[,] and judgment shall be entered accordingly.” This Court recently discussed Rule 52, and stated that it “requires a chancellor to make written finding of fact upon [the] request of a party.” McBride v. McBride, 110 So.3d 356, 361 (¶ 25) (Miss.Ct.App.2013). “Unless the evidence is overwhelming, it is reversible error for the trial court to refuse, upon request by a party to the litigation, to make specific findings of fact and separately state the conclusions of law on which its decision is based.” Id. (quoting West v. West, 891 So.2d 203, 215 (¶ 35) (Miss.2004)).

¶ 9. John filed a motion for findings of fact and conclusions of law on July 10, 2013, and the chancellor denied it in an order dated August 16, 2013. We agree with John that this was an error, and should have been done in accordance with Rule 52(a). Accordingly, we reverse and remand with regard to this issue.

II. Whether the chancellor committed manifest error in granting Mary a divorce on the ground of habitual cruel and inhuman treatment.

¶ 10. John next argues that the chancellor erred in granting Mary a divorce on the ground of habitual cruel and inhuman treatment. In order for a divorce to be granted on this ground, the claimant must show, by preponderance of the evidence, the following:

[Cjonduct that either endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or in the alternative, [is] so unnatural and infamous as to make the marriage revolting to the offending spouse and render it impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance.

Alexander v. Alexander, 95 So.3d 696, 699 (¶ 9) (Miss.Ct.App.2012). The Mississippi Supreme Court requires more “than mere unkindness, rudeness, or incompatibility to support the granting of a divorce on the ground of cruel and inhuman treatment.” Anderson v. Anderson, 54 So.3d 850, 852 (¶ 10) (Miss.Ct.App.2010). In determining whether the conduct reaches the level of cruel and inhuman treatment, the chancellor must consider the conduct of the offending spouse and the impact of that conduct upon the claimant. Fisher v. Fisher, 771 So.2d 364, 367 (¶ 10) (Miss.2000). Finally, “there must be corroboration of the complaining party’s testimony” for a divorce based upon habitual cruel and inhuman treatment. Anderson, 54 So.3d at 852 (¶ 10) (quoting Chapel v. Chapel, 700 So.2d 593, 597 (Miss.1997)).

¶ 11. John asserts that the chancellor did not have enough evidence to support his findings. He points out that the only witnesses during the trial were John and Mary. We agree with John that the record is convoluted and riddled with uncorroborated testimony. As such, we reverse and remand to the chancellor for further findings as to this issue.

III. Whether the chancellor erred when he divided the marital assets and ordered John to pay permanent alimony, to pay for Mary’s housing, to pay for medical insurance, and to pay for uncovered medical costs.

¶ 12. John also argues that the chancellor erred in dividing the marital assets and in assigning the expenses for which John was responsible. His primary argument is that the trial court failed to consider all applicable factors from Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994), or to rule that any of the factors were not applicable. With regard to this issue, the law in Mississippi is clear:.

Factor tests, such as provided in Ferguson for property division and Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993), for alimony, must be considered on the record in every case. These factor considerations are not only essential for appellate purposes, but also for trial courts, as they provide a checklist to assist in the accuracy of their rulings. Following these guidelines reduces unintended errors that may affect the court’s ultimate decision. The absence of an analysis of these factors and failure to apply the law to the facts at hand create error.

Heimert v. Heimert, 101 So.3d 181, 187 (Miss.Ct.App.2012) (quoting Lowrey v. Lowrey, 25 So.3d 274, 280 (¶ 7) (Miss.2009)). Upon review of the record, it appears the chancellor based everything on John’s pay stub. There is no mention of Ferguson or Armstrong, nor was there an analysis of any of the aforementioned factors. We, therefore, reverse and remand for the chancellor to make a more in depth analysis on the record.

IV. Whether the chancellor erred when he ordered John to pay attorney’s fees.

¶ 13. John’s final argument is that the chancellor erred in ordering him to pay Mary’s $5,000 in attorney’s fees. “The award of attorney’s fees in divorce cases is left to the discretion of the chancellor, assuming he follows the appropriate standards.” Speights v. Speights, 126 So.3d 76, 81 (¶ 15) (Miss.Ct.App.2013) (quoting Creekmore v. Creekmore, 651 So.2d 513, 520 (Miss.1995)). Attorney’s fees are typically only awarded if the requesting party has established his or her inability to pay. Id. “An award of attorney’s fees should be fair and should only compensate for services actually rendered after it has been determined that the legal work charged for was reasonably required and necessary.” Jordan v. Jordan, 105 So.3d 1130, 1135 (¶ 20) (Miss.Ct.App.2012) (citation omitted).

¶ 14. Upon review of the record, we find that the chancellor made insufficient findings as to whether the attorney’s fees were fair and reasonable in this case. Without adequate information in the record, we are unable to affirm the judgment at this time. We, therefore, reverse and remand this portion of the judgment for a proper assessment of Mary’s attorney’s fees.

CONCLUSION

¶ 15. In conclusion, we return to the issue that Mary failed to file an appellee brief. We do not find that the record is such that it “can be conveniently examined and such examination reveals a sound and unmistakable basis or ground upon which the judgment may be safely affirmed.” Richardson, 856 So.2d at 429 (¶ 11). Rather, we are of the opinion that John’s argument “creates enough doubt in the judiciousness of the chancellor’s judgment[.]” Pearson, 121 So.3d at 268 (¶ 7). For this reason, we reverse and remand to the Jefferson Davis County Chancery Court.

¶ 16. THE JUDGMENT OF THE JEFFERSON DAVIS 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 APPELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.