author: WESTBROOKS, J.,

text:
    The ESTATE OF James R. POUNDS; James Bradley Pounds, individually and as Executor of the Estate of James R. Pounds; Sonya Pounds Tucker; and Eula Mae Pounds, Appellants v. J.L. SHIRLEY and Linda Shirley, Appellees
    NO. 2016-CA-00590-COA
    Court of Appeals of Mississippi.
    10/10/2017

      ATTORNEY FOR APPELLANTS: GREG E. BEARD
    ATTORNEYS FOR APPELLEES: CASEY LANGSTON LOTT, JOE-COLBY RAY LANGSTON
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   WESTBROOKS, J.,

FOR THE COURT:

¶ 1. The executor of the estate of James R. Pounds (Pounds Estate), and heirs individually, appeal the ruling of the Prentiss County Chancery Court. The chancellor reformed the warranty deed of the subject property, finding that the deed mistakenly included property not mutually agreed upon by the decedent and the owner. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Jim “J.L.” Shirley (Shirley) was deeded land east of the Brown’s Creek Channel by his uncle, H.C. Shirley, in 1970. The deed conveyed “all that part of [eight tracts] lying and being east of Brown’s Creek Channel.” In 1988, Shirley was conveyed the land west of Brown’s Creek by his uncle’s widow, Eloise Cavaness Shirley. Shirley leased his land to James for farming purposes for a number of years. In 1997, Shirley, suffering from cancer, decided to sell the tract of his land east of Brown’s Creek to James.

¶ 3. Shirley and James undertook discussions about the sale and purchase of the land east of Brown’s Creek, but they never discussed the exact acreage. The 1997 conveyance from Shirley to James was for the purchase price of $105,000 and was owner financed by Shirley, who held a deed of trust that was never recorded. There were two deeds relating to the 1997 conveyance of land. The first deed was signed on January 13, 1997. That deed read in part: “In consideration of the sum of ten dollars and other valuable consideration ..,, I [ ] hereby convey to [ ] J.L. Shirley [ ] the following described land in Prentiss County, Mississippi, to-wit: All that part of the following described land lying and being East of Brown’s Creek Channel .... ”

¶ 4. The second deed, a purportedly corrected deed, was signed the following day, on January 14, 1997. Both Shirley and his wife, Linda, signed the second deed, though Linda’s signature was not necessary because the deed was titled in James’s name only.

¶ 5. The 1997 deeds were prepared by a local attorney, Ellis Finch. There were only three people (Shirley, James, and Finch) present when the property was transferred. The 1997 deeds contained the exact language set forth in the second two paragraphs of the 1970 deed. However, Finch moved the language specifying that the only part of the land being conveyed was “all that part of [eight tracts] lying and being east of Brown’s Creek” from the first paragraph to the second paragraph of the deed. Though the 1997 deed contained nearly the exact same language as that of the 1970 deed, the following alterations created the case in controversy:

For and in consideration of the sum of [t]en [d]ollars ($10.00) and other good and valuable considerations, the receipt and sufficiency of all of which is hereby acknowledged, I, J.L. Shirley, do hereby convey and warrant to James R. Pounds, the land situated in Prentiss County, Mississippi, and being more particularly described as follows: All that part of the following described land lying and being [e]ast of Brown’s Creek Channel ■ ....

¶ 6. James became ill and passed away in July 2014. James Bradley Pounds (Bradley), James’s son, undertook the farming operations on his father’s land. Bradley had his father’s land surveyed following his death. As a result of the description of the property in the corrected deed, the surveyor included land west of Brown’s Creek in his survey. The Shir-leys were not aware of any claim to the land west of Brown’s Creek. On December 29, 2014, James’s surviving heirs conveyed the entirety of the surveyed property, including the disputed tract, to Bradley. Bradley recorded the deed on December 30, 2014.

¶ 7. After discovering that James’s heirs asserted a claim against certain portions of land west of Brown’s Creek, the Shirleys filed a complaint against the Pounds Estate. In their complaint, the Shirleys argued that the warranty deed should be voided for fraud or civil conspiracy, or reformed due to a mutual mistake, or, in the alternative, the title to the property should be confirmed based on adverse possession. At trial, Shirley testified that the sale of the land west of Brown’s Creek was never contemplated. Linda, who is Finch’s cousin, testified that Shirley never discussed selling the property west of Brown’s Creek. Linda testified that the west side of the property held sentimental value to her and Shirley, and it was part of their livelihood.

¶8. Shirley’s son-in-law, Harold Smith, testified that Shirley would bushhbg the same land that the Pounds Estate claimed ownership of, but he never witnessed James bushhog or maintain the property. Eula Mae Pounds, James’s wife, testified that she knew that he had purchased land west of Brown’s Creek. However, Shirley’s counsel impeached her trial testimony with her deposition statements that she had never heard her husband state at any time that he purchased land west of Brown’s Creek. At trial, Bradley téstifíed that his father never told him that he intended to buy property west of Brown’s Creek. But Bradley contended that his father knew that he owned land on the west side of Brown’s Creek but was unaware of the exact acreage. Bradley testified that his father never told him that Shirley intended to sell land west of Brown’s Creek. Bradley acknowledged that if certain tracts of land west of Brown’s Creek were sold to his father, two of the tracts would essentially be landlocked.

¶9, At trial, the judge asked Bradley why his father would purchase tract five, a landlocked tract, surrounded by Shirley’s land.-Bradley admitted that a mistake had been made in the deed; nevertheless, Bradley assorted that the tract was to accompany property on the east side of the land, though the tract was located on the west side. Bradley also argued that the deed had an easement across Shirley’s land. Nevertheless,. Bradley conceded that the property had no possible use, and he did not know why his father would have purchased the landlocked tract.

¶ 10. Randy Paul Pounds (Randy), James’s brother, also testified at trial. Randy farmed land with James. Randy testified that after farming Shirley’s land for a number of years; his brother decided to purchase some of the land. He testified that before the purchase was made, there was no discussion about the purchase of land west of Brown's Creek.. However, Randy explained. that his brother was aware that he would be purchasing around 200 acres on the east side and 120 acres on the west side of Brown’s Creek. Randy acknowledged that he never heard Shirley state that he sold James land west of Brown’s Creek. Randy also testified that Shirley installed a gate on an adjoining neighbor’s land that separated the land west of Brown’s Creek. Since James farmed a portion' of the land west of Brown’s Creek, Shirley provided him with a key to access the land. Randy testified that though Shirley gated some of the land, he did so out of necessity to prevent trespassers from entering the property.

¶11. Randy also testified that he saw Shirley bushhog and “spray” ditches with weed killer to prevent vegetation on the land that he considered James’s land; but he had not seen Shirley bushhogging for five or more years. Randy also, bush-hogged the land in question, installed a culvert to cross creeks, and assisted with fixing “blow-outs” that occurred as a result of flooding. However, Randy testified that they bushhogged and installed ditches regardless- of whether James leased or owned the land. When asked to identify the lánd conveyed to James, Randy could not identify a tract of land that he farmed with James.

¶ 12. After trial, the court issued its memorandum opinion and final judgment, finding that'the warranty deed mistakenly included property west of Brown’s Creek. The court found that the Shirleys did not prove fraud by clear and convincing evidence. The court ordered the Shirleys to repay the Pounds Estate for the taxes James paid for the property. Finding a mutual mistake had. occurred, the court reformed the warranty deed. It is frojn that order that this appeal is taken. On appeal, the Pounds Estate argues:

I. THE CHANCELLOR ABUSED HIS DISCRETION IN FINDING A . MUTUAL MISTAKE.

II. THE SHIRLEYS’ CLAIMS WERE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS.

STANDARD OF REVIEW

¶ 13. “We will not disturb the chancellor’s opinion when it is supported by substantial evidence unless the chancellor abused [his] discretion, or was manifestly wrong or clearly erroneous.” Kelly v. Barry, 115 So.3d 131, 133-34 (¶10) (Miss. Ct. App. 2013) (quoting Olive v. McNeal, 47 So.3d 735, 739 (¶10) (Miss. Ct. App. 2010)). “Additionally, we will reverse the chancellor’s decision if [he] applied an erroneous legal standard.” Id. “We review questions of law de novo.!’ Id. A deed may be reformed where it is shown to have resulted from the mutual mistake of the parties in contracting for it.” Id. at 134 (¶12).

DISCUSSION

I. Whether the chancellor’s memorandum opinion and judgment finding mutual mistake was manifestly wrong and clearly erroneous.

_ ¶ 14. The Pounds Estate argues that the court abused its discretion in relying on assumptions and circumstantial evidence ,to reform the deed, rather than using the best evidence, the warranty deed. In support of its contentions,. the Pounds Estate argues that the chancellor’s opinion contained several errors and findings of fact that require further explanation. The chancellor found that the facts surrounding the conveyance denoted a mutual mistake. The chancellor reiterated Shirley’s testimony, that when he signed the warranty deed, he intended to only convey the land east of Brown’s Creek to James. Before the execution of the warranty deed to James, Shirley leased land to James. Both James and Shirley executed an agricultural-land rent agreement that required James to make two payments of $15,000. The initial agreement did not specify which land was leased or what acreage the lease concerned. The chancellor noted that the agreement continued after the warranty deed was executed.

¶ 15. The Pounds Estate cites to many individual findings in the chancellor’s decision in support of the contention that the chancellor abused his discretion. The Pounds Estate argues: (1) the installation of a gate on neighboring land was not evidence of mutual mistake; (2) it was error to find that James did hot maintain the land west of Brown’s Creek; (3) the court did not acknowledge the actions that James took to maintain the land; (4) the court’s characterization of the purchased tracts of land west of Brown’s Creek as “bizarre” is of no consequence; (5) the court erred in characterizing the land west of Brown’s Creek as more valuable than the land on the east; and (6) the evidence relied upon by the court was indirect or circumstantial evidence, and the court abused its discretion in ignoring the best evidence of the parties’ intent, the warranty deed.

¶ 16. The Shirleys argue that their case is supported by much more than just their own testimony. They argue that the evidence taken as a whole supports the chancellor’s finding of a mutual mistake. “It is well established that this Court will not reverse a chancellor’s findings unless they, are clearly erroneous.” Norris v. Cox, 860 So.2d 319, 322 (¶10) (Miss. Ct. App. 2003) (citing Sproles v. Sproles, 782 So.2d 742, 746 (¶12) (Miss. 2001)). The Mississippi Supreme Court has illustrated this standard by saying, “a finding of fact is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with a- definite and firm conviction that a mistake has been made.” Id. (internal quotation marks omitted).

¶ 17. “In an action to reform a deed based on a mistake theory, the petitioner must demonstrate a mutual mistake among the parties or a unilateral'mistake in combination with fraud or inequitable conduct on the part of the benefitting party.” Elchos v. Haas, 178 So.3d 1183, 1191-92 (¶25) (Miss. 2015). “The burden rests with the petitioner to prove the mutual mistake occurred between the parties beyond a reasonable doubt.” Id,

¶ 18. The chanéellór was presented with substantial evidence that the property west of Brown’s Creek was never intended to be included in the 1997 warranty deed, A majority of the witnesses testified that James never informed them of his intent to purchase land wést pf Brown’s Creek. Randy could not identify one of the tracts of land that he alleged belonged to his brother, though he farmed with him. Bradley testified that the inclusion of a landlocked tract of land was a mistake in the deed and that he did not know why his father would have purchased a landlocked tract that was essentially useless. As a result, the chancellor found that the totality of the evidence supported a finding of a mutual mistake in the warranty deed, warranting reformation. “Where there is substantial evidence to support [the chancellor’s] findings, this Court is without the authority to disturb [his] conclusions, although it might have found otherwise as an original matter.” Joel v. Joel, 43 So.3d 424, 429 (¶14) (Miss. 2010). Accordingly, we find that the chancellor did not abuse his discretion in reforming the warranty deed. , .

II. Whether the Shirleys’ claims were barred by the statute of limitations.

¶ 19. The Pounds Estate argues that the Shirleys’ claim of concealed fraud is time-barred because they were put on notice of the fraud or mistake once the deed was recorded. At trial, the court found no clear and convincing proof that James conspired to unlawfully or fraudulently act. As a result, the court found that the claim for fraud and civil conspiracy failed. Our supreme court has held that “where a plaintiff alleging a possessory interest in the land brings an action to clear title or to recover land obtained by fraudulent conveyance, that action is governed by the ten-year statute of limitations.” Lott v. Sautters, 133 So.3d 794, 799 (¶ 7) (Miss. 2014).

¶20. In their complaint, the Shir-leys alleged that the transcription error was a result of intentional trickery and fraud. The Shirleys also argued that the deed of trust that Bradley recorded on December 30, 2014, was an attempt to fraudulently impair and cloud the title to the property. The Pounds Estate argues that the Shirleys’ cause of action is time-barred, since they were put on notice of mistake when the deed was recorded. The Pounds Estate further asserts that if the ten-year statute of limitations does apply pursuant to Mississippi Code Annotated section 15-1-7 (Rev. 2012), then the Shir-leys claims are still time-barred, since they brought the action eighteen years after the deed was recorded. We do not agree. “Actions to recover land are subject to the ten-year statute of limitations found in [section] 15-1-7 and [Mississippi Code Annotated section] 15-1-9 [ (Rev. 2012) ]. Lott, 133 So.3d at 799 (¶8).

¶21. In relevant part, section 15-1-17 provides:

A person may not make an entry or commence an action to recover land except within ten years next after the time at which the right to make the entry or to bring the action shall have first accrued to some person through whom he claims, or, if the right shall not have accrued to any person through whom he claims, then except within ten years next after the time at which the right to make the entry or bring the action shall have first accrued to the person making or bringing the same.

(Emphasis added). Section 15-1-9 states that a claimant in a land dispute may not bring suit to recover the land except in accordance with section 15-1-7. However, in every case of concealed fraud, the right to bring suit accrues when the fraud is first known or, with reasonable diligence, discovered. Miss. Code Ann. § 15-1-9.

¶22. The Shirleys commenced an action to recover land based on their assertion that the land was either fraudulently or mistakenly conveyed to James. Their cause of action did not accrue until they became aware of the adverse claim to the land west of Brown’s Creek. No action was ever taken by James while he was alive to possess and control any tract of land west of Brown’s Creek. Therefore, the cause of action did not accrue until the Pounds Estate sought to enforce the 1997 warranty deed. “[Statutes of limitation do not begin to run against one in actual or constructive possession of lands until an adverse entry has been made.” Lloyd v. Gibbes, 910 So.2d 587, 589 (¶9) (Miss. Ct. App. 2005) (quoting Leech v. Masonite Corp., 219 Miss. 176, 68 So.2d 297, 300 (1953)).

¶ 23. Accordingly, we find that the statute of limitations did not prohibit the chancellor from hearing and ruling on the Shir-leys’ case. Accordingly, the chancellor’s judgment is affirmed.

¶ 24. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON AND GREENLEE, JJ„ CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . Due to the number of parties with the same last name, we will refer to the decedent, James Pounds, as James.


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Lauren ROBERTS, Appellant v. Tyler EADS, Appellee
    NO. 2016-CA-01242-COA
    Court of Appeals of Mississippi.
    10/10/2017

      ' ATTORNEY FOR APPELLANT: GAY ■ L. POLK-PAYTÓN
    ATTORNEY FOR APPELLEE: BARBARA BOND PARKER .
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
   CARLTON, J.,

FOR THE COURT:

¶ 1. The Forrest County Chancery Court awarded Lauren Roberts and Tyler Eads joint legal and physical custody of their eight-year-old son, Thomas. In appealing the chancellor’s denial of her request for primary physical custody, Lauren asserts that the chancellor (1) erred in his application of the Albright factors and (2) misapplied Mississippi' statutory law and caselaw. Finding no error, we affirm.

FACTS

¶ 2. Tyler and Lauren cohabited in 2008. Following their son’s birth in 2009, the parties ended their relationship and eventually married other people. Tyler married Jenny Eads around December 2009, and the couple later had two children together. Lauren married Harry Martinolich in May 2012, and they had one child together. Lauren and Harry later divorced, and in May 2015, Lauren-married Daniel Roberts. At the time of the hearing on this matter, Lauren and Daniel were expecting a child.

¶3. On May 22, 2015, Lauren filed a petition seeking sole legal and" physical custody of Thomas. On June 29, 2015, Tyler filed a response, a counterclaim for custody, and a motion for temporary relief. The sanie day the chancellor entered a temporary order awarding Lauren temporary legal and physical custody of Thomas and granting Tyler visitation rights. The chancellor also appointed a guardian ad litem (GAL) for Thomas.

¶ 4. On March 1, 2016, the GAL submitted her initial report. The GAL found that Lauren, age twenty-six, worked as a nurse with the Hattiesburg School District. The GAL further found that Tyler, age twenty-seven, had worked for numerous companies as a truck .driver and was currently employed by Ross Trucking. The GAL found no concerns with the parties’ spouses and determined that both spouses were involved in Thomas’s life and cared for him very much. Athough Thomas enjoyed spending time with his father, stepmother, and half-brothers, the GAL found that he had lived his entire life with his mother. As a result, the GAL concluded that Thomas was closer to Lauren and was more comfortable in a living environment with her.

¶ 5. Taking into consideration the Al-bright factors, the GAL found the following factors favored Lauren: (1) continuity óf care; (2) employment and responsibilities of that employment; (3) emotional ties with the child; (4) stability of the home environment; and (5) stability of employment. Due to Thomas’s age, the GAL deemed inapplicable the factor regarding his preference. She further concluded that all the remaining Albright factors were neutral. Based on her findings, the GAL initially recommended that Lauren retain primary physical custody of Thomas, Tyler receive standard visitation rights, and the parties share legal custody; At the end of her initial report, the GAL wrote that she reserved the right to change her opinion based upon pending testimony and the receipt of additional information.

¶ 6. After filing her original report, the GAL followed up with the parties and reviewed Thomas’s' school records. In addition, the GAL interviewed Tyler’s parents (Thomas’s paternal grandparents) and the paternal grandmother of Lauren’s son from her marriage with Harry; The additional information gathered by the GAL led her to change her custody recommendation. As a result, the GAL submitted a supplemental report on June 17,2016.

¶ 7. In her supplemental report, the GAL explained that she originally recommended Lauren retain primary physical custody of Thomas because she believed Lauren had continuity of - care and that neither Tyler nor his parents were active in Thomas’s life. However, the GAL stated she had received new information that showed both Tyler and his parents had actively participated in Thomas’s life prior to the custody- filing but that Lauren had not.allowed them to see Thomas since she filed for sole custody. In addition, the GAL reported that Tyler had initially refrained from refuting Lauren’s allegations or speaking negatively about her -because he was afraid Lauren “would continue to withhold [Thomás] from his-life.” The GAL found that Lauren had twice previously withheld visitation from Tyler, with each occasion lasting from several weeks to several months. After taking into account the additional information she had received, the GAL recommended that Lauren and Tyler share .legal and physical custody of Thomas.

¶ 8. On June 28, 2016, the chancellor held a hearing on the parties’ custody dispute. On July 19, 2016, the chancellor entered his final judgment. In -applying the Albright factors, the chancellor -agreed with the GAL’s analysis that the following factors were neutral: (1) Thomas’s age, health, and sex; (2) the parties’ parenting skills; (3) the parents’ willingness and capacity to provide primary'child care; (4) the parents’ age, physical health, and mental health; (5) Thomas’s home, school, and community record; and (6) the parents’ relative financial situations. Athough noting the GAL’s initial conclusion that consideration of the parents’ emotional ties favored Lauren, the chancellor determined this factor was also neutral.

¶ 9. As to the remaining factors, the chancellor agreed with the GAL that Thomas’s preference was inapplicable due to his age. Furthermore, the chancellor agreed with the GAL that the following three factors weighed in Lauren’s favor: (1) continuity of care prior to the parties’ separation; (2) the parents’ employment and the responsibilities of their employment; and (3) the stability of the parents’ employment. However, unlike the conclusion reached by the GAL’s initial report, the chancellor found that three factors also weighed in Tyler’s favor. These factors included: (1) the parents’ moral fitness; (2) the stability of the parents’ home environments; and (3) the differences in the parents’ religion, personal values, and lifestyles.

¶10. After determining that Tyler and Lauren both had three Albright factors weighing in their favor, the chancellor concluded that joint legal and physical custody would be in Thomas’s best interest. Aggrieved by the chancellor’s judgment, Lauren appeals.

STANDARD OF REVIEW

¶ 11. “This Court’s standard of review in domestic[-]relations matters is extremely limited.” Phillips v. Phillips, 45 So.3d 684, 692 (¶ 23) (Miss. Ct. App. 2010). Appellate courts cannot “reevaluate the evidence, retest the credibility of witnesses, nor otherwise act as a second factfinder.” Bower v. Bower, 758 So.2d 405, 412 (¶ 31) (Miss. 2000) (citing Wright v. Stanley, 700 So.2d 274, 280 (Miss. 1997)). We will not disturb a chancellor’s findings of fact unless the findings were manifestly wrong or clearly erroneous or unless the chancellor applied an erroneous legal standard. Phillips, 45 So.3d at 692 (¶ 23). Furthermore, we will not reverse the chancellor’s decision where substantial record evidence supports his factual findings. Id. However, we review questions of law de novo. Smith v. Wilson, 90 So.3d 51, 56 (¶ 13) (Miss. 2012).

DISCUSSION

I. Application of the Albright Factors

¶ 12. “The best interest of' the child is paramount in any child-custody case.” Smith v. Smith, 97 So.3d 43, 46 (¶ 8) (Miss. 2012). In determining a child’s best interest, the chancellor considers the following factors: (1) the child’s age, health, and sex; (2) the parent with the continuity of care prior to the separation; (3) the parent with the best parenting skills and the willingness and capacity to provide primary child care; (4) the parents’ employment and the responsibilities of that employment; (5) the parents’ physical and mental health and age; .(6) the emotional ties of the parent and child; (7) the parents’ moral fitness; (8) the child’s home, school, and community record; (9) the child’s preference at the age sufficient to express a preference by law; (10) the stability of the parents’ home environments and employment; and (11) other factors relevant to the parent-child relationship. Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983).

¶ 13.. “An Albright analysis is not a mathematical equation.” Hall v. Hall, 134 So.3d 822, 827 (¶ 19) (Miss. Ct. App. 2014). “[T]his Court cannot reweigh the evidence and must defer to the chancellor’s [factual] findings ... so long as they are supported by substantial evidence.” Id. at 828 (¶ 21). The Mississippi Supreme Court “has held that ‘all the Albright factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way he sees fit.’ ” Id. at 827 (¶ 19) (quoting Johnson v. Gray, 859 So.2d 1006, 1013-14 (¶ 36) (Miss. 2003)).

¶ 14. In challenging the chancellor’s award of joint physical custody of the parties’ son, Lauren argues that the chancellor misapplied several Albright factors. Specifically, she contends the chancellor erroneously found that Thomas’s age, health, and sex; the parents’ relative financial situations; and the parents’ emotional ties with Thomas were all neutral factors. Lauren further asserts the chancellor erred by finding that consideration of the parties’ moral fitness and the stability of their home environments weighed in. Tyler’s favor.

a.Thomas’s Age, Health, and Sex

¶ 15. The chancellor found that, at the time of the hearing, Thomas was a seven-year-old boy who received speech therapy and had been diagnosed with ADHD. The chancellor also noted that concerns had been raised that Thomas might have dyslexia. While finding that Tyler had been less involved than Lauren in Thomas’s ADHD evaluation and treatment, the chancellor determined this was due to Lauren’s failure to inform Tyler about Thomas’s medical issues. The GAL’s supplemental report reached the same conclusion. The chancellor further noted the GAL’s findings that, while Tyler felt alienated due to the lack of information and wished to be kept up to date, he had no problem with Thomas receiving continued treatment for his diagnosis. Based on the information before him, the chancellor agreed with the GAL’s finding that this factor was neutral. Upon review, we find nothing in the record to contradict the chancellor’s determination that this factor favored neither parent. See Hall, 134 So.3d at 828 (¶ 21).

b.The Parents’ Relative Financial Situations

¶ 16. Athough not actually listed as an Albright factor, the chancellor included a discussion of the parties’ relative financial situations and found that this “factor” was neutral. In so finding, the chancellor determined that Tyler’s income had remained almost the same at his last two jobs and that Lauren had been employed at her current position for about a year and a half. The chancellor also noted Tyler’s testimony that he was considering returning to school to receive training as a lineman or electrician. Finally, the chancellor concluded that both parties’ expenses exceeded their incomes. Based’ on this evidence, the chancellor found that consideration of the parties’ relative financial situations favored neither party. After reviewing the record, we conclude that substantial evidence supports the chancellor’s finding on this issue. See id.

c.The Emotional Ties of the Parents and Child

¶ 17. In discussing this factor, the chancellor acknowledged that the GAL’s initial report concluded this factor favored Lauren. According to the GAL’s testimony, however, her supplemental findings revealed that both Tyleir and his parents were more involved in Thomas’s life than she initially believed. Furthermore, the evidence showed, and the GAL found, that Thomas enjoyed spending time at his father’s home with his stepmother and his half-brothers.

¶ 18. After considering the testimony and evidence presented, the chancellor found that both parties loved their son very much and were emotionally connected to him. As a result, the chancellor con-eluded this factor was neutral. Because the record contains substantial evidence to support the. chancellor’s finding, we find no error. See id.

. d. The Parents’ Moral Fitness

¶ 19. With regard to the parents’ moral fitness, the chancellor noted that Tyler had been in a stable marriage for the last six years that had produced two children. The chancellor further noted that Lauren began cohabiting with her first husband, Harry, two months after meeting ■ him and had -begun dating and living with her current husband, -Daniel, while still married to, but separated from, Harry. At the time of the hearing, Lauren and Daniel were expecting a child.

¶ 20. Although the GAL found the parties’ moral fitness neutral, the chancellor concluded that the factor weighed in Tyler’s favor “in view-of Lauren’s promiscuous behavior with Daniel while still married to Harry.” See Brumfield v. Brumfield, 49 So.3d 138, 149 (¶¶ 43-44) (Miss. Ct. App. 2010) (finding no error in the chancellor’s consideration of the wife’s adulteries, as well as other circumstances, and her determination that the moral-fitness factor favored the husband). On appeal, Lauren argues the chancellor “erred by holding [heir] past against her in determining her' moral fitness and awarding [the parties] joint physical custody of the[ir] minor child.” Despite Lauren’s assertions, however, the record fails to show that the chancellor placed undue emphasis on Lauren’s marital and extramarital relationships. Instead, the record reflects that the chancellor conducted an appropriate Albright analysis and considered all the relevant factors applicable to the case in reaching his determination. See Bruenderman v. Bruenderman, 220 So.3d 204, 208 (¶ 13) (Miss. Ct. App. 2017) (finding no error in-the chancellor’s Albright analysis where the chancellor discussed but did not overemphasize the husband’s adultery). We therefore find no error with respect to the chancellor’s findings on this factor. See Hall, 134 So.3d at 828 (¶ 21).

e. The Stability of the Parents’ Home Environments

¶ 21. As to the stability of the parents’ home environments, the chancellor again observed that Tyler had been in a stable marriage for over six years while Lauren had been in ' multiple relationships and marriages, The chancellor also found that Tyler appeared to have more family to support him than Lauren did. As the GAL’s supplemental report noted, Tyler’s parents were much more involved in Thomas’s- life than she initially believed. The chancellor therefore disagreed with the GAL’s finding that this factor favored Lauren, and he instead concluded that the factor weighed in Tyler’s favor. Because substantial evidence supports the chancellor’s determination, we find ho error. See id,

II. Application of Mississippi Statutory Law and Caselaw

¶ 22. In addition to challenging the chancellor’s application of the Albright factors, Lauren claims that the chancellor’s award of joint physical custody violates Easley v. Easley, 91 So.3d 639 (Miss. Ct. App. 2012), and Mississippi Code Annotated section 93-5-24(2) (Rev. 2Ó13).

¶ 23. In Easley, the chancellor granted the parties, an irreconcilable-differences divorce. Easley, 91 So.3d at 640 (¶ 1). Section 93-5-24(2) provides that joint custody may be awarded in an irreconcilable-differences divorce “in the discretion of ■ the court, upon application of both parents.” Following a trial in Easley, “the chancellor determined that joint physical custody was in the children’s best interest, but he erroneously concluded that the statute did not allow it to be awarded unless both parties expressly presented joint , custody for consideration,” Easley, 91 So.3d at 640 (¶ 1). The chancellor therefore awarded sole custody of the parties’ children to the father while granting the mother visitation. Id. On appeal, this Court concluded that, “after finding joint custody to be in the children’s best interest, the chancellor’s award of custody to one parent was an error of law.” Id. at (¶2). We therefore reversed the chancellor’s judgment and remanded the case so the chancellor could apply the proper legal standard. Id.

¶ 24, Upon review of the present case, we find no merit to Lauren’s claim that the chancellor’s award of joint physical custody violated either section 93-5-24(2) or our holding in Easley. As stated, section 93-5-24(2) provides a chancellor with the discretion to grant joint custody in an irreconcilable-differences divorce. However, the present case involves no such divorce since the parties were never married. We further note that section 93-5-24(3) provides a chancellor with the discretion to award joint custody “[i]n other eases .,. upon application of one or both parents.” As. the record here reflects, in responding to Lauren’s custody petition, Tyler requested sole custody or, in the alternative, joint custody. Furthermore, after considering the Albright factors, the chancellor determined that joint legal and physical custody served Thomas’s best interest. As.Easley recognized, a chancellor may grant joint custody, even where both parties do not present the issue, if such, an arrangement is in the child’s best interest. See Easley, 91 So.3d at 640 (¶ 1). We therefore find no merit to Lauren’s assertion that the chancellor’s judgment violated Mississippi statutory law and caselaw.

¶25. The chancellor’s judgment is affirmed.

¶ 26. AFFIRMED.

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

      . To protect the privacy of the parties’ minor son,, we use a pseudonym in place of his actual name.

      . See Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983).

      . See Mixon v. Sharp, 853 So.2d 834, 840 (¶ 29) (Miss. Ct. App. 2003) (recognizing that a child under age twelve is too young to have his-preference considered). .

      . See Sumrall v. Sumrall, 970 So.2d 254, 258 (¶ 19) (Miss. Ct. App. 2007) (finding no error in the chancellor’s factual determination that the emotional ties between the parents and child constituted á neutral factor since both parents' loved their child and the child loved his parents).

      . Compare In re N.B., 135 So.3d 220, 228 (¶ 35) (Miss. Ct. App. 2014) (recognizing a chancellor’s authority to reject the findings of a statutorily required GAL but providing that the chancellor's reasons for doing so must be stated in his factual findings and legal conclusions). ,

      . See also Smith v. Smith, 206 So.3d 502, 514 (¶ 33) (Miss. 2016) (discussing a chancellor’s duty to weigh conflicting testimony'and determine witness credibility); Reed v. Weathers Refrigeration & Air Conditioning Inc., 759 So.2d 521, 524 (¶ 10) (Miss. Ct. App. 2000) ("Even if this Court disagreed with the lower court on the finding of fact and might have arrived at a different conclusion, we are still hound by the chancellor’s findings unless manifestly wrong.” (quoting Richardson v. Riley, 355 So.2d 667, 668 (Miss. 1978))).


author: IRVING, P.J.,

text:
    Patricia EKANEM, Appellant v. GREENVILLE PUBLIC SCHOOL DISTRICT BOARD OF TRUSTEES, Appellee
    NO. 2016-CC-01093-COA
    Court of Appeals of Mississippi.
    10/10/2017

      ATTORNEY FOR APPELLANT: BRYANT DONLEVY GUY
    ATTORNEY FOR APPELLEE: DORIAN E. TURNER
   IRVING, P.J.,

FOR THE COURT:

¶ 1. The superintendent of the Greenville Public School District (District) recommended the nonrenewal of the employment contract for the 2014-2015 school year of Weddington Math, Science, and Technology Academy teacher, Patricia Ekanem. The Greenville Public School District Board of Trustees (Board) conducted a hearing and upheld the superintendent’s recommendation, effectively terminating Ekanem’s employment. Ekanem filed a petition with the Washington County Chancery Court for judicial review of the Board’s decision. The court affirmed the Board’s decision, and Ekanem appealed. We affirm.

FACTS

¶ 2. Ekanem obtained her teaching cer-tifícate in 1997. She taught at various elementary schools in the District, including Akin Elementary School, Webb Elementary School, Darling Achievement Center, and Weddington. Over the course of her employment at these schools, Ekanem was placed on four different improvement plans under three different principals.

¶ 3. Ekanem taught first grade at Wed-dington during the 2011-2012, 2012-2013, and 2013-2014 school years. During that time period, she was placed on two improvement plans, which targeted multiple areas for improvement. However, the Weddington principal testified before the Board that Ekanem did not show significant improvement as a result of having been placed on these plans. Further, the overall performance of the students in her class during the 2013-2014 school year did hot meet the District’s benchmarks.'

DISCUSSION

¶ 4. This Court’s review of a decision by a chancery or circuit court concerning an agency action invokes the same standard of review that trial courts are bound to follow. Giles v. Shaw Sch. Dist., 203 So.3d 1165, 1169 (¶ 12) (Miss. Ct. App. 2016). Mississippi Code Annotated section 37-9-113(3) (Rev. 2013) provides the following standard of review1 for a school board’s decision not to renew an employee’s contract:

The scope of review of the chancery court in such cases shall be limited to a review of the record made before the school board or hearing officer to determine if the action of the school board is unlawful for the reason that it was:
(a) Not supported by any substantial evidence;
(b) Arbitrary or capricious; or
(c) In violation of some statutory or constitutional right of the employee.

¶ 5. Ekanem argues that the chancery court erred in upholding the Board’s decision because that decision was not supported by substantial evidence and was arbitrary or capricious. “Substantial evidence méans more than a scintilla or a suspicion.” Giles, 203 So.3d at 1169 (¶ 13) (citation omitted). “The terms ‘arbitrary’ and ‘capricious’ imply a lack of understanding of or a disregard for the surrounding facts and settled controlling principles.” Id. (citation omitted). ‘We deem an act arbitrary when it occurs not according to reason or judgment, but occurs based on the will alone.” Id. (citation omitted). “If the reasons for non[ Jrenewal are a sham, or are a retaliation for the employee’s constitutionally protected activity, the Board acts arbitrarily and capriciously.” Id. (citation omitted).

¶ 6. Here, the record contains evidence of multiple areas where Ekanem performed deficiently. Ekanem was twice placed on improvement plans while at Weddington. The record reflects that the Weddington principal sent Ekanem multiple letters pointing out her failure to follow the plans and instructing her that further action-would be required if she did not improve her instructional skills. Wedding-ton’s principal also testified.at the hearing before the Board that Ekanem did not successfully complete the plans. Further, the record contains several letters reprimanding Ekanem for behavior, such - as using corporal punishment to discipline a student and not ■ beginning her class’s school day on time. She accrued almost thirty absences and was reproached for frequent tardiness. Additionally, the record contains several notes from students who attest to having overheard Ekanem use curse words when referring to another teacher. Finally, Ekanem’s students performed below the District’s expectations in several areas.

¶7. In her brief, Ekanem asserts that she had ■ received favorable reviews and evaluations in the past, but that they had been removed from her file. Ekanem also maintains that her performance scores were the “third highest” among the five first-grade teachers. Ekanem argues that her absences were due to a back injury she had suffered while teaching at Webb Elementary, which had become re-inflamed upon, her transfer to Weddington. Additionally, ■ Ekanem contends that she was singled out and picked on by Weddington’s principal. Ekanem also argues that she was given the other teachers’ worst students, and that while the principal often videotaped her class, he did not use the tapes in an instructional manner to assist her with improvement.

.¶8. The record contains substantial.evidence, that Ekanem was underperforming and failed to comply with plans designed to improve her instructional skills. Therefore, the Board’s actions were not arbitrary or capricious, and there is no evidence to suggest that its decision was in violation of any statutory or constitutional right of Ek-anem. As such, we affirm the chancellor’s judgment.

¶ 9. AFFIRMED.

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

      . Weddington's principal testified during the hearing before the Board that an "improvement plan” is essentially a set of procedures assigned to a teacher whose evaluations show that he or she nee.ds improvement in certain areas; the plan includes a timeline by which the procedures are supposed to have been implemented.


author: WESTBROOKS, J., CARLTON, J;,

text:
    Christopher N. CRATIN a/k/a Christopher Cratin A/k/a Christopher Neal Cratin, Appellant v. Commissioner Marshall FISHER, Appellee
    NO. 2016-CP-00259-COA
    Court of Appeals of Mississippi.
    12/12/2017

      ■ATTORNEY FOR APPELLANT: CHRISTOPHER N. CRATIN (PRO SE)
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: • DARRELL CLAYTON BAUGHN ANTHONY LOUIS SCHMIDT JR.
    BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.
   WESTBROOKS, J.,

FOR THE COURT:

¶ 1. Christopher Cratin, appearing pro se, appeals the Hinds County Circuit Court’s dismissal of Ijis grievance filed through the Mississippi Department of Corrections’ (MDOQ) Administrative Remedy Program (ARP). After review of the record, we vacate and remand to the circuit court for dismissal for lack of jurisdiction.

FACTS AND PROCEDURAL HISTORY

¶ 2. In July 2008, Cratin was convicted of two counts of fondling and one count of sexual battery in the DeSoto County Circuit Court. Cratin was sentenced to concurrent fifteen-year terms for his convictions. Cratin is currently incarcerated in Issaquena County Correctional Facility.

¶ 3. Cratin filed his first grievance through MDOC’s ARP in April 2016, asserting that he was entitled to receive earned time, and that MDOC’s policy regarding the exclusion of sex-crime offenders from meritorious earned time (MET) violated state law.

¶ 4. In June 2016, Cratin received MDOC’s decision denying his ARP grievance. On the same day, Cratin sent a letter, addressed to the commissioner of MDOC, arguing that his ARP grievance was rejected without due consideration. MDOC rejected Cratin’s letter, stating it was a duplicate request. Cratin appealed MDOC’s ARP decision to the Hinds County Circuit Court.

¶ 5. In September 2016, the circuit court, entered an order of dismissal. The circuit court acknowledged that it was unsure whether it could exercise jurisdiction over Cratin’s complaint. Further, the circuit court stated if it could exercise jurisdiction over Cratin’s appeal, MDOC’s decision and policy prohibiting MET credit to sex offenders was not violative of state law. Cra-tin appeals.

STANDARD OF REVIEW

¶ 6. This Court cannot disturb the decision of an administrative agency “unless the decision was unsupported by substantial evidence, was arbitrary 'or' capricious, was beyond the agency’s scope or powers, or violated the constitutional or statutory rights of the aggrieved party.” Clark v. Miss. Dep’t of Corr., 148 So.3d 403, 404 (¶ 5) (Miss. Ct. App. 2014) (citations omitted). “The standard of review for the trial court’s decision to affirm or deny an administrative agency’s findings and decisions is abuse of discretion.” Id. Moreover, “[w]hether the circuit court has jurisdiction is a question of law and is reviewed de novo.” Mangum v. Miss. Parole Bd., 76 So.3d 762, 765-66 (¶ 6) (Miss. Ct. App. 2011) (citations omitted).

DISCUSSION

Jurisdiction and Timeliness of Appeal

¶7. In his appeal to the circuit court, Cratin asserted that he properly served MDOC. However, MDOC argued that it had never been legally summoned and served through the Office of the Attorney General.

¶ 8. Pursuant to Mississippi Rule of Civil Procedure 4(d)(5), service of process “[u]pon the State of Mississippi or any one of its departments, officers[,] or institutions” is made by “delivering a copy of the summons and complaint to the Attorney General of the State of Mississippi.” M.R.C.P. 4. Cratin failed to comply with this rule. Therefore, we find that the circuit court lacked jurisdiction over Cratin’s appeal.

¶ 9. Notwithstanding the procedural bar, the circuit court acknowledged that Cratin’s appeal was also filed untimely. “Section 47-5-807 [of the Mississippi Code Annotated (Rev. 2015) ] provides that ‘any offender who is aggrieved by an adverse decision rendered pursuant to any administrative-review procedure may, within thirty (30) days after receipt of the agency’s final decision, seek judicial review of the decision.’ ” Hill v. State, 165 So.3d 495, 498 (¶ 10) (Miss. Ct. App. 2015) (alteration omitted) (quoting § 47-5-807).

¶ 10. The circuit court noted that Cratin’s ARP grievance was rejected on June 30, 2016, and an acknowledgment was also signed. However, Cratin’s appeal was not filed in the circuit court until September 23, 2016. The court also noted that it did not receive a copy of the mailed envelope demonstrating service of process and did not see a reason for the delay. “Our precedent provides that filing within the statutorily mandated time is jurisdictional.” Hill, 165 So.3d at 498 (¶ 11) (citation and quotation marks omitted).

¶ 11. Accordingly, we find that the circuit court did not have jurisdiction over Cratin’s appeal. Therefore, we vacate and remand to the circuit court for dismissal for lack of jurisdiction.

¶ 12. VACATED AND REMANDED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON AND GREENLEE, JJ., CONCUR. CARLTON, J., CONCURS IN PART AND . . DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY TINDELL, J.; GREENLEE, J., JOINS IN PART.

CARLTON, J;,

CONCURRING IN PART AND DISSENTING IN PART:

¶ 13. Cratin filed a grievance with the MDOC’s ARP alleging that he is entitled to receive earned time for his sex convictions. The MDOC subsequently rejected Cratin’s ARP grievance as untimely. Cra-tin then appealed the MDOC’s ARP decision to the circuit court. The circuit court entered an order of dismissal, stating that it was unsure whether it had jurisdiction over Cratin’s appeal. In that same order, the circuit court then addressed the merits of Cratin’s appeal and found that the MDOC’s policy prohibiting earned time to sex offenders violated no statutes. The circuit court then affirmed the MDOC’s decision “[t]o the extent this [cjourt has jurisdiction.”

¶ 14. On appeal, the majority finds that the circuit court lacked jurisdiction over Cratin’s appeal due to improper service of process and Cratin’s failure to file a timely appeal. See M.R.C.P. 4(d)(5); see also Miss. Code Ann. § 47-5-805 (Rev. 2015) (providing statute of limitations for appealing administrative agency’s final decision). The majority thus vacates the circuit court’s order and remands this case back to the circuit court for a dismissal for lack of jurisdiction. I agree with the majority’s determination that the circuit court lacked jurisdiction over Cratin’s appeal. However, based on recent guidance from the Mississippi Supreme Court, I would instead affirm the circuit court’s order of dismissal.

¶ 15. In Forkner v. State, 227 So.3d 404, 406 (¶ 6) (Miss. 2017), the supreme court reversed this Court’s opinion dismissing an appeal due to our lack of appellate jurisdiction. In so doing, the supreme court cited to Mississippi Rule of Appellate Procedure 4(a) and' provided that “[a] final judgment from which a timely notice of appeal was filed confers jurisdiction upon an appellate court to determine whether the circuit court’s disposition was lawful.” Id. The supreme court in Forkner explained that this Court thus possessed jurisdiction to review the petitioner’s timely appeal of the circuit court’s final judgment. Id. As a result, the supreme court held that this Court “should have vacated the order of the circuit court that erroneously adjudicated [the petitioner’s PCR motion] without authority[,]” rather than dismissing the appeal. Id.

¶ 16. In the case before us, the circuit court’s order acknowledges that the court may lack jurisdiction to hear Cratin’s ARP appeal, yet proceeds to make a ruling on the merits of the appeal. However, the order is still titled “Order of Dismissal” and accordingly dismisses Cratin’s appeal. As stated above, the circuit court indeed lacked jurisdiction to hear Cratin’s ARP appeal, thus requiring dismissal of the appeal. It is well established that this Court can affirm a circuit court where the right result is reached, even if we disagree with the reason for the result. See Stewart v. Walls, 534 So.2d 1033, 1035 (Miss. 1988) (“It is a familiar rule that this Court will affirm the lower court where the right result is reached, even though we ■ may disagree with the reason for the result.”).

¶ 17. The supreme court’s recent clarification in Forkner provides this Court with jurisdiction to review whether the circuit court’s disposition herein was lawful. As a result, I respectfully dissent from the majority’s decision. Despite the circuit court’s failure to make an express finding that it lacked jurisdiction, the circuit court entered an order dismissing the ARP appeal. Since the circuit court lacked jurisdiction to hear Cratin’s appeal, dismissal of the appeal was proper. Accordingly, I would affirm the circuit court’s order of dismissal. See Stewart, 534 So.2d at 1035.

TINDELL, J., JOINS THIS OPINION. GREENLEE, J.,. JOINS THIS OPINION IN PART.


author: FAIR, J.,'

text:
    Anthony GREEN a/k/a Anthony Earl Green a/k/a Anthony E. Green Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00157-COA
    Court of Appeals of Mississippi.
    12/12/2017

      ATTORNEY FOR APPELLANT: ANTHONY GREEN (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   FAIR, J.,'

FOR THE COURT:

¶ 1. In 2008, Anthony Green pled guilty to two counts of murder-and one count of grand larceny. He did so as part of a plea agreement where, in exchange for Green’s guilty pleas, the State agreed not to pursue capital murder charges and to recommend concurrent life sentences on the murder charges and a consecutive sentence oh the grand larceny charge that was below the maximum term of incarceration for that offense. In 2016, Green filed a motion for post-conviction relief attacking his murder convictions, contending that his indictment was defective and that his guilty plea was involuntary. The circuit court dismissed the motion as time-barred. We affirm.

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 movant 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. Green acknowledges that his motion was filed more than three years from the entry of the judgment of his conviction, so it was time-barred pursuant to Mississippi Code Annotated section 99-39-5(2) (Rev. 2015). Ordinarily, claims made outside of the three-year statute of limitations must raise one of the exceptions found in Mississippi Code Annotated section 99-39-5(2)(a)-(b). “The movant bears the burden of showing he has met a statutory exception.” Bell v. State, 95 So.3d 760, 763 (¶ 10) (Miss. Ct. App. 2012) (reversed in part on other grounds) (citation omitted). Green does not argue that he meets any of the statutory exceptions; instead, he relies on the Mississippi Supreme Court’s oft-cited holding that “errors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post-Conviction Collateral Relief Act].” See Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss. 2010). Since the applicability of the fundamental rights exception depends on the particular claim, we will address each of Green’s contentions in turn.

1. Sufficiency of the Indictment

¶ 5. Green argues that his indict ment failed to allege an essential element on the capital murder counts because it failed to identify the victim of the underlying felonies—robbery in one and robbery and arson in the other. First of all, this issue is irrelevant because Green pled guilty to “simple” murder, which does not require an underlying offense. Green’s indictments adequately alleged murder. See Pinkney v. State, 192 So.3d 337, 345 (¶ 28) (Miss. Ct. App. 2015).

¶ 6. Furthermore, the attack on the capital murder indictment is based on Rowland v. State, 98 So.3d 1032, 1038-39 (¶ 12) (Miss. 2012), which had held that a capital murder indictment must name the victim of the underlying felony. But Rowland was overruled on that point by Carson v. State, 212 So.3d 22, 32-34 (¶¶ 37-40) (Miss. 2016). The identity of the victim of the underlying crime is not an element of capital murder. Id. Thus, Green’s indictment did not fail to allege an essential element of either capital murder count.

¶ 7. Green also complains that he pled guilty to “simple” murder, but his indictments were for capital murder. This was permissible because murder is a lesser-included offense of capital murder. See Lay v. State, 75 So.3d 1108, 1110 (¶ 6) (Miss. Ct. App. 2011).

¶ 8. Green has failed to show any defects in his indictments.

2. Factual Basis

¶ 9. Green’s next contention is couched as a claim that his plea was involuntary, but it is actually a claim that the trial court failed to establish a factual basis for the convictions in the record. This claim does not implicate a fundamental constitutional right and is subject to the time-bar. “[0]nly four types of ‘fundamental rights’ have been expressly found to survive PCR procedural bars: (1) the right against double jeopardy; (2) the right to be free from an illegal sentence; (3) the right to due process at sentencing; and (4) the right not to be subject to ex post facto laws.” Salter v. State, 184 So.3d 944, 950 (¶ 22) (Miss. Ct. App. 2015).

¶ 10. Notwithstanding the procedural bar, the record belies Greens’s claim. At the plea hearing, the prosecutor laid out a lengthy and detailed explanation of how Green murdered the two people he was alleged to have murdered in the indictment, and Green admitted under oath that it was true. This issue is time-barred and without merit.

3. Voluntariness of Guilty Plea

¶ 11. Finally, Green alleges that his plea was involuntary because he was not informed of the elements of “simple” murder, as opposed to capital murder. This claim, though it arguably implicates fundamental constitutional rights, is not covered by the fundamental constitutional rights exception and is thus still subject to the time-bar. See Jones v. State, 174 So.3d 902, 907 (¶ 12) (Miss. Ct. App. 2015). This issue is barred.

¶ 12. Moreover, Green does not actually allege that he did not know the elements of murder; he simply contends that the trial judge should have explicitly laid them out for him. This alone would not render his guilty plea involuntary, as “[a] trial court need not explain the elements of the offense to the defendant.” Hill v. State, 60 So.3d 824, 830 (¶ 19) (Miss. Ct. App. 2011) (citing Bradshaw v. Stumpf, 545 U.S. 175, 183, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005)). “Rather, the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel.” Id. (quoting Bradshaw, 545 U.S. at 183, 125 S.Ct. 2398).

¶13. Green executed a sworn petition where he admitted his lawyer had “advised[ him] of the nature of the charge(s).” This contention is without merit as well as barred.

4. Double Jeopardy

¶ 14. Green appears to claim that his convictions violated the constitutional protection against double jeopardy, but he never supports this contention with any relevant argument or authority. The record in fact reflects that Green murdered two separate people, and we can see no cognizable double jeopardy claim. This contention is without merit.

¶ 15. AFFIRMED.

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


author: GREENLEE, J.,

text:
    Fredrick SMITH Jr. a/k/a Frederick J. Smith a/k/a Frederick Smith a/k/a Fredrick Smith a/k/a Frederick Smith Jr., Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00309-COA
    Court of Appeals of Mississippi.
    01/02/2018

      ATTORNEYS FOR APPELLANT: JOHN M. COLETTE, SHERWOOD ALEXANDER COLETTE
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ALICIA MARIE AINSWORTH
   GREENLEE, J.,

FOR THE COURT:

¶ 1. Frederick Smith appeals his conviction from Hinds County Circuit Court, First Judicial District, of two counts of aggravated assault with a deadly weapon. More specifically, the jury found him guilty of shooting two people. On appeal, his asserted errors are that: (1) the trial court did not allow an alibi witness to testify; (2) the trial court allowed impermissible hearsay testimony in violation of Crawford v. Washington; and (3) the evidence was insufficient as to one of the counts. Upon review, we find the circuit court erred by disallowing Smith’s alibi witness to testify. We reverse Smith’s conviction and remand for a new trial.

BACKGROUND

¶ 2. On July 13, 2013, at approximately 1:30 a.m., Jessica Keys and Cameron Conner were, both shot at a gas station, in Jackson, Mississippi. Keys was riding passenger in a car operated by her coworker when they pulled into the gas station, and parked facing the station, with the gas pump on the driver’s side. Conner was inside the station, and when he exited, Keys recognized him. Keys opened her car door and stood up outside the car but from behind the door, calling out to Connor. Connor then came over to Keys, almost reaching her door.

¶ 3. Earlier, while Keys’s vehicle was parked and Conner was inside, a car had pulled in and parked on the opposite side of the same stall, also facing the station. No occupants exited until approximately two minutes later, when Conner reached Keys’s door. At that time, three individuals exited the car and opened fire on Keys and Conner. Both Keys and Conner dropped to the ground for cover. Keys attempted to wedge herself under the car, lying along the car’s length with her head toward the rear, while Conner used the outside of the still-open car door for protection. One of the three shooters pivoted around the rear of Keys’s vehicle, firing his weapon as he moved along the rear-passenger side. Conner crawled from the car door to the. front of the vehicle, attempting to seek better cover. As Conner moved, the same shooter continued to fire, pivoting to get a better angle .at Conner.

¶ 4. Keys was shot three times and remained alongside the car until she was transported by ambulance to University of Mississippi Medical Center. Conner left the. scene prior to the first responders’ arrival, when other individuals helped him inside their vehicle.

■ ¶ 5. Keys viewed a photo lineup and identified Fredrick Smith as one of the shooters. Smith was indicted on January 29, 2014, oh two counts of aggravated assault with a weapon in violation of Mississippi Code Annotated section 97—3—7(2)(b) (Supp. 2012). Ón June 10, 2014, the Hinds County District Attorney’s Office withdrew because one of Smith’s co-indictees was serving as a cooperating witness for the State in another prosecution. On June 23, 2014, the Mississippi Office of the Attorney General was appointed as special prosecutor in Smith’s case.

¶6. During trial, the court granted Smith’s motion in limine to exclude third-party identifications tying Smith to the shooting, including any identifications within tips submitted to Crime Stoppers. Detective Rozerrio Camel of the Jackson Police Department, the assigned investigator, testified for the State. Prior to his testimony, the trial judge advised the State to inform Detective Camel he could not mention any information contained within the Crime Stoppers tips, stating “[the nature of the tips] is hearsay.” However, during his testimony, Detective Camel stated, “during the course of investigation, I received information and tips—and tips regarding Frederick Smith. Tips was stating that Frederick Smith—[ (interrupted by colloquy regarding an objection)] .... Tips. I received tips regarding Frederick Smith and—and the purple automobile that he drives.” Following Detective Camel’s statement, the trial court issued a cautionary instruction: “Ladies and gentlemen of the jury, I’m instructing you to totally disregard the portion of the testimony of this witness dealing with the identification of any vehicle.”

¶ 7. On the second day of trial, Smith’s trial counsel, Darla Palmer, notified the court that there was a witness, Kenzoro Williams, who would state he was with Smith at the time of the shooting. Palmer further stated that, although she had spoken with Smith on numerous occasions about the upcoming trial, Smith’s first mention of the potential alibi witness was on the second day of trial. Outside the presence of the jury, the court allowed a proffer of Williams’s testimony. In his proffer, Williams stated that on the night of the shooting, he saw Smith at a local club. He further stated that Smith did not leave until he did, at approximately 2 a.m. on Saturday morning. Following Williams’s proffer, Smith testified for the limited purpose of explaining the timing of his alibi-witness disclosure. The State objected to Williams’s testimony, and the trial court sustained the objection, disallowing Williams from testifying.

¶ 8. Following trial, the jury found Smith guilty on both counts. Smith was subsequently sentenced on each count to a term of twenty years in the custody of the Mississippi Department of Corrections, with five years suspended and fifteen to serve, followed by five years of probation. The sentences were ordered to run concurrently with one another. Smith appeals.

DISCUSSION

I. Denial of Smith’s Alibi Witness

¶ 9. On appeal, Smith challenges the court’s exclusion of his proposed alibi witness. “In reviewing rulings of a trial court regarding matters of evidence, relevancy and discovery violations, the standard of review is abuse of discretion.” Sims v. State, 928 So.2d 984, 986 (¶ 8) (Miss. Ct. App. 2006).

¶ 10. Mississippi Uniform Rule of Circuit and County Court Practice 9.05 states:

Upon the written demand of the prosecuting attorney stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days, or at such other time as the court may direct, upon the prosecuting attorney a written notice of the intention to offer a defense of alibi

(Emphasis added).

¶ 11. “The rule clearly states that the requirement to disclose an alibi witness is triggered by the prosecution.” Hall v. State, 925 So.2d 856, 857 (¶ 4) (Miss. Ct. App. 2005). “Only after the prosecuting attorney makes a written demand is the defendant then required to provide written notice of his intent to offer a defense of alibi.” Id. (quoting Ford v. State, 862 So.2d 554, 557 (¶ 11) (Miss. Ct. App. 2003)). Upon thorough review, there is nothing indicating that the prosecution made such a written demand, and we are not inclined to assume one exists. We therefore find that Smith’s lack of disclosure was not a failure to abide by Rule 9.05, On two prior occasions, we have reversed and remanded when a defendant’s alibi witness was- excluded, where the State did not make a written demand under Rule 9.05. See Hall, 925 So.2d at 857 (¶¶ 3-5); Ford, 862 So.2d at 557 (¶¶ 10-12). The trial court likewise erred here, in denying Smith the opportunity to present his alibi witness. We reverse and remand for a new trial.

II. Detective Camel’s Testimony

¶ 12. Smith next argues testimony of Detective Rozerrio Camel was admitted in violation of the Confrontation Clause of the Sixth Amendment. Smith asserts that Detective Camel gave, over a sustained objection, testimonial evidence concerning the tips he received via Crime Stoppers. A criminal defendant’s argument is procedurally barred where he fails to make a contemporaneous Sixth Amendment (Confrontation Clause) objection to the admission of testimony and does not raise an objection in his post trial motions. Ezell v. State, 132 So.3d 611, 612 (¶ 3) (Miss. Ct. App. 2013). A general hearsay objection is insufficient to preserve an alleged Confrontation Clause violation for appellate review. Briggs v. State, 16 So.3d 696, 698-99 (¶ 11) (Miss. Ct. App. 2008).

¶ 13. Smith failed to make a Sixth Amendment objection to the admission of Detective Camel’s testimony either at trial or in a post trial motion (and instead asserted hearsay objections). Smith’s arguments on this issue are therefore procedurally barred. We note that Detective Camel’s statement, given over a sustained hearsay objection, was clearly improper. However, we do not find this issue disposi-tive, and decline to review it for plain error.

III. Sufficiency of the Evidence

¶ 14. In his third assignment of error, Smith asserts the State presented insufficient evidence to convict him of aggravated assault, as to the charge concerning Conner. Smith argues that: (1) Connor did not testify; (2) no witnesses testified that Smith shot Conner; and (3) Keys’s testimony was unreliable.

¶ 15. In considering whether the evidence is legally sufficient to sustain Smith’s conviction, the critical inquiry is whether the evidence shows beyond a reasonable doubt that Smith committed the act charged, and that he did so under such circumstances that every element of the offense existed. Russell v. State, 924 So.2d 604, 608 (¶ 8) (Miss. Ct. App. 2006). “The key question in this analysis is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quotation marks omitted) (quoting Bush v. State, 895 So.2d 836, 843 (Miss. 2005) (abrogated on other grounds)). If the evidence against Smith is such that “reasonable fair-minded [jurors] in ■ the exercise of impartial judgment might reach different conclusions on every element of the offense,” we will deem the evidence sufficient. Id. We will only reverse the jury’s verdict when evidence of one or more of the elements of the charged offense are such that reasonable and fair-minded jurors could- only find the accused not guilty. Wilson v. State, 936 So.2d 357, 362 (¶ 16) (Miss. 2006). In analyzing such, a claim of error,- we are required to view the evidence in the light most favorable to the State and consistent with the verdict. Id. The State receives the benefit of all favorable inferences that may be reasonably drawn from the evidence. Id.

¶ 16. For the jury to find Smith guilty of aggravated assault, the State was required to prove beyond a reasonable doubt that Smith: (1) attempted to cause or purposely or knowingly (2) caused bodily injury to another (3) with a deadly weapon or other meahs likely to produce death or serious bodily harm. Miss. Code Ann. § 97-3-7(2) (Supp. 2012).

¶ 17. Looking to the record, we find the evidence such that a rational trier of fact could have found, beyond a reasonable doubt that Smith attempted to cause or purposefully gv knowingly caused bodily injury to Conner with a deadly weapon. Keys picked Smith out of a lineup, and identified him as one of the three shooters. She testified that she was able to identify Smith because she recognized his eyes. Keys also identified Smith during trial, and' stated that during the shooting, while she was underneath her car, Smith came close to where she was, and shot over the car at Conner. Keys "stated that when she was under the car, she was on her stomach, but had her head up, and her eyes open.

¶ 18. Smith’s assertion that Keys’s testimony was unreliable is an attempt to attack her credibility,, and we have consistently held that the jury determines a witness’s credibility at trial, and the weight and worth of her testimony. See, e.g., Odom v. Roberts, 606 So.2d 114, 118 (Miss. 1992); Burge v. Spiers, 856 So.2d 577, 580 (¶ 9) (Miss. Ct. App. 2003). Smith’s assignment of error regarding the sufficiency of the evidence is without merit.

CONCLUSION

¶ 19. The State did not issue a written demand that Smith disclose his intent to offer an alibi; and therefore, Smith was not required to' disclose his intention to call Williams. Thus, the trial court erred when it denied Smith the opportunity to present his alibi witness. Smith’s second assignment of error is procedurally barred, and we find that Smith’s third assignment concerning the sufficiency of the evidence is without merit.

¶ 20. REVERSED AND REMANDED.

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

      . Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

      . A security camera captured the above incident in its entirety, and the jury viewed the footage during trial.

      . Crime Stoppers is an organization that solicits tips from the public in effort to gather information concerning crimes.

      . Mississippi Rule of Criminal Procedure 17.4 replaced Rule 9.05 effective July 1, 2017. But because the proceedings in this case predate this change, the former rule applies.


author: ' FAIR, J.,

text:
    Tracey Carol GADDIS, Appellant v. Bennie Richard WILKERSON, Jr., Appellee
    NO. 2016-CA-01475-COA
    Court of Appeals of Mississippi.
    01/09/2018

      .ATTORNEY FOR -APPELLANT: WILSON H. CARROLL
    ATTORNEY FOR APPELLEE: JAMES F. NOBLE III
    BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.
   ' FAIR, J.,

FOR THE COURT: .

¶ 1. This'appeal involves the narrow issue of custody-schedule modification. Richard Wilkersón priginally sought to remove custody of his son from his ex-wife, Tracey Gaddis, but the chancellor increased his custody time instead. Tracey appealed. After careful review, we find the chancellors decision was supported by substantial evidence. Accordingly, we affirm.

.FACTS

.¶ 2. Richard and Tracey married in 2002. They had one child together—Logan— born in 2005. The parties divorced in 2008 on the ground, of irreconcilable differences. In the child.custody and property settlement agreement,' Richard and Tracey were granted joint legal and physical custody of their son, with detailed periods of custody. The chancellor granted Tracey custody during the weekdays, except for Tuesday from 3 p.m. to 8 p.m, when Logan would be with Richard. The agreement also stated that Richard would have Logan every other weekend and at the opening of deer season, beginning at age five. Finally, the agreement divided holidays and special occasions between the parties.

¶3. In 2013, Richard and Tracey entered into their most recent agreement amending their preceding child custody and property settlement agreements, all of which have consistently affirmed that their custody is both joint legal and joint physical. The modified agreement granted Richard and Tracey equal time with Logan during the summer on a week-on, week-off basis. The agreement further stated that Richard would have Logan every other Wednesday from 5:30-7:30 p.m. (for church services and related activities) and every first, third, and fifth weekend, from Thursday after school until the following Monday. And the agreement provided additional details to Richard and Tracey’s holiday and special occasion schedules.

¶ 4. On April 6, 2016, Richard filed a petition to modify the amended child custody and property settlement agreement. Richard sought sole physical custody, claiming a material change in circumstances had occurred that adversely affected Logan. In the alternative, he sought equal time with Logan on a year-round basis during the school year. Tracey filed a motion to dismiss, which the court denied.

¶ 5. The court held a hearing on Richard’s petition. Both Richard and Tracey testified, and Logan was interviewed in the chancellor’s chambers—off the record but with the court reporter present. At the conclusion of the hearing, the chancellor determined that there was no material change in circumstances warranting a change of custody. So he denied Richard’s request for sole physical custody. He also denied Richard’s alternative request for equal time during the school year. However, the chancellor found modification of the custodial periods was in the best interest of the child, noting that the custodial periods were “in the nature of a visitation schedule.” He changed Richard’s alternating Wednesday evening custodial periods, provided to end at 8 p.m., to overnight. He also directed that spring break would be divided, with alternating four and three day periods for each of the parents. The chancellor also found that Tracey should be allowed to see Logan on his birthday, if the birthday falls within Richard’s custodial period.

STANDARD OF REVIEW

¶6. Our review of domestic relations matters is limited. Chesney v. Chesney, 849 So.2d 860, 862 (¶ 8) (Miss. 2002) (citing Montgomery v. Montgomery, 759 So.2d 1238, 1240 (¶ 5) (Miss. 2000)). The chancellor’s findings of fact will not be disturbed on appeal if they are supported by substantial credible evidence. Carter v. Carter, 204 So.3d 747, 756 (¶ 37) (Miss. 2016) (citing Marascalco v. Marascalco, 445 So.2d 1380, 1382 (Miss. 1984)). We will not reverse the decision of a chancery court unless the chancellor abused his or her discretion, was manifestly in error, or applied an erroneous legal standard. Dupree v. Pafford, 200 So.3d 1092, 1094 (¶ 4) (Miss. Ct. App. 2016) (citing Pearson v. Pearson, 121 So.3d 266, 268 (¶ 6) (Miss. Ct. App. 2013)).

DISCUSSION

¶7. Richard and Tracey have shared joint legal and physical custody of Logan since the original divorce decree. Joint physical custody does not require equal time with each parent, but it does require that the parents have “significant periods of physical custody ... to assure á child of frequent and continuing contact with both parents.” Miss. Code Ann. § 93-5-24(5)(c) (Rev. 2013).

¶ 8. Tracey contends that the chancellor erred when he modified the schedule within the custody agreement. At trial and on appeal, both parties • have incorrectly stated that Tracey has primary physical custody of Logan and that Richard has visitation. The original custody agreement, the 2013 modified custody agreement, and the appealed 2016 modified custody agreement all state that Tracey and Richard are both custodial parents—an important distinction for Richard. Neither party is categorized as having “primary physical custody,” nor is either party awarded visitation. Further our supreme ’ court has emphasized that the term “primary physical custody” is not specified in section 93-5-24 and “cannot act to transform such express ‘joint physical, custody’ into de facto sole physical custody with liberal visitation.” Porter v. Porter, 23 So.3d 438, 446-47 (¶ 22) (Miss. 2009).

¶ 9. Still, we agree with the chancellor that a custody schedule has the characteristics of a visitation schedule. To modify a visitation schedule, “it must be shown that the prior decree for reasonable visitation is not working and that a modification is in the best interest of the child.” H.L.S. v. R.S.R., 949 So.2d 794, 798 (¶ 9) (Miss. Ct. App. 2006) (quoting Ellis v. Ellis, 840 So.2d 806, 812 (¶ 25) (Miss. Ct. App. 2003)). “The chancellor has broad discretion to determine the specific times for visitation.” Id. (citing Haddon v. Haddon, 806 So.2d 1017, 1020 (¶ 12) (Miss. 2000)).

¶ 10. In his bench ruling, the chancellor noted that he took all testimony and other evidence into consideration. The chancellor first extended Richard’s alternating Wednesdays to overnight stays. On those Wednesday nights, Richard takes Logan to church. The chancellor reasoned that overnight stays aré more beneficial since, after the church- service, “all the child’s doing is coming home and going to bed. I mean, he doesn’t have time to do anything else, so there’s no reason to make an exchange at 8:00 at night or 8:30 .... ” He further reasoned that overnight stays would result in less hostility between Richard and Tracey, since they often argued about whether Richard brought Logan back to Tracey’s house on time. The chancellor also granted Richard custody during half of Logan’s spring break. He noted that spring break was the only holiday missing from the past two agreements.

¶ 11. We find the chancellor’s minor changes to the custody schedule supported by the record. Further, the chancellor’s decision to award Richard half of Logan’s spring break served the purpose of joint custody—to award each custodial parent equal and “significant periods of physical custody.” Miss. Code Ann. § 93-5-24 (Rev. 2013).

¶ 12. We also address Richard’s argument on appeal that the chancellor’s judgment is not a final, appealable judgment under Mississippi Rule of Civil Procedure 54(b). 'Generally, a final judgment is one that adjudicates the merits of the controversy-and settles all-issues between all parties. Miss. Waste of Hancock Cty. Inc. v. Bd. of Sup’rs of Hancock Cty., 818 So.2d 326, 330 (¶ 8) (Miss. 2001) (citing Sanford v. Bd. of Sup’rs, Covington Cty., 421 So.2d 488, 491 (Miss. 1982)). In other words, “[a]n order is considered final if it ends the litigation on the merits and leaves nothing for the court' to do but execute the judgment.” Banks v. City Fin. Co., 825 So.2d 642, 645 (¶ 10) (Miss. 2002) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945)), overruled on other grounds by Sawyers v. Herrin-Gear Chevrolet Co., 26 So.3d 1026 (Miss. 2010). Here, because the chancellor adjudicated the merits of Richard’s petition and, settled all issues between Richard and Tracey, we find the ■ appealed judgment is indeed a final judgment.

¶ 13. AFFIRMED.

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

      . We use a fictitious name for the minor to protect his identity.


author: FAIR, J.,

text:
    Shirley Bass HEARN, Appellant v. BAYVIEW LOAN SERVICING, LLC, Appellee
    NO. 2016-CA-01651-COA
    Court of Appeals of Mississippi.
    01/09/2018
    ATTORNEY FOR APPELLANT: TARIK OMARI JOHNSON
    ATTORNEY FOR APPELLEE: PETER LAWRENCE LUBLIN
    BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. Shirley Hearn appeals the circuit court’s grant of summary judgment against her in this ejectment case. Hearn contends that summary judgment should not have been .granted because Bayview Loan Servicing filed a “brief in. support” rather than a motion for summary judgment. We conclude that Hearn waived the issue by filing a response without complaining of the sufficiency of the motion. We affirm.

DISCUSSION

¶ 2. Hearn’s sole issue on appeal is her contention, made for the first time on appeal, that the circuit court erred in granting summary judgment to Bayview based on- Bayview’s failure to file a written motion for summary judgment.

¶ 3. “We employ a de novo standard of review of a trial court’s grant or denial of summary judgment ....” Davis v. Hoss, 869 So.2d 397, 401 (¶ 10) (Miss. 2004).

¶ 4. Motions for summary judgment are governed by Mississippi Rule of Civil Procedure 56. The. rule does not explicitly require a written motion to be filed, but it does require that “[t]he motion shall be served at least ten days before the time fixed for the hearing.” M.R.C.P. 56(c). At the relevant, time, Rule 4.03(1) of the Uniform Rules of Circuit and County Court Practice provided in relevant part that “[t]he original of. each motion, and all affidavits and other supporting, evidentiary documents shall be filed 'with the clerk in the county where the action is docketed.” Part (2) adds (in relevant part): “Movants for summary judgment shall file with the clerk as a part of the motion an itemization of the facts relied upon and mot genuinely disputed and the respondent shall indicate either agreement or specific reasons for disagreement that such facts are undisputed and material.” Rule 4.03 also contains requirements regarding the mailing and service of various documents relating to summary judgment, but those do not seem to be at issue in this case.

¶5. Here, Bayview filed a document styled “Brief in Support of Plaintiffs Motion for Summary Judgment.” The filing was generally consistent with that description, though its conclusion styled it a “motion for summary judgment.” Attached were various documents in support, and Bayview filed separately a “Statement of Undisputed Material Facts and Theory of Recovery.” See URCGC 4.03(2).

¶ 6. The circuit court later entered an “order requiring response to motion for summary judgment,” giving Hearn—who was at the time representing herself—ten days to file a response. Hearn then filed a “Brief in Response and Opposition to Plaintiffs Motion for Summary Judgment,” addressing the merits of the brief/motion and making no complaints about its sufficiency as filed. The circuit .court then granted summary judgment to Bayview, and Hearn has appealed from that judgment.

¶ 7. The issue of the sufficiency of the filing was not raised until this appeal. Hearn now contends that Bayview was required to file its motion for summary judgment with the clerk—and oh that point she is correct. See URCCC 4.03. But this Court has held that the requirement of a written summary judgment motion can be waived by failing to object to the motion. See Lopez v. McClellan, 2008-CA-01857-COA, 2010 WL 1664937, at *4 (¶ 21) (Miss. Ct. App. Apr. 27, 2010). The United States Court- of Appeals.-for the Fifth Circuit has also noted, with approval, a district court decision “granting summary judgment where no motion was filed but the movant submitted a brief in support of summary judgment and the nonmovant treated it as a summary judgment motion”—which" is exactly what occurred here. See Enplanar Inc. v. Marsh, 11 F.3d 1284, 1293 (5th Cir. 1994) (citing Spickard v. Ribicoff, 211 F.Supp. 555, 558 (W.D. Ky. 1962)), Hearn filed a response to the motion, addressed to the underlying merits. No objection was raised to the failure to file the motion itself.

¶ 8. We conclude that Hearn waived any objection to Bayview’s failure to file a formal summary judgment motion when she filed her response, on the merits of Bay-view’s brief/motion without objecting to its form. Hearn does not raise a due process issue expressly, but it is apparent that she had notice of the motion and an adequate opportunity to respond, sc any such claim would be without merit. See Palmer v. Biloxi Reg’l Med. Ctr., 649 So.2d 179, 183-84 (Miss. 1994).

¶ 9. AFFIRMED.

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

      . The rule has subsequently been superseded by Rule 4.02 of the Uniform Civil Rules of Circuit and County Court Practice.