author: DICKINSON, Presiding Justice,

text:
    THE MISSISSIPPI BAR v. Samuel JONES.
    No. 2014-BD-01385-SCT.
    Supreme Court of Mississippi.
    Sept. 3, 2015.

      James Russell Clark, Jackson, attorney for appellant.
    Samuel Jones (pro se), attorney for ap-pellee.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. The Tennessee Supreme Court, through its Board of Professional Responsibility, publicly censured Samuel Jones— an attorney licensed in Tennessee and Mississippi—after a Tennessee trial court twice dismissed his client’s divorce action because he failed to act. The Mississippi Bar filed a complaint for reciprocal discipline and requested that Jones be required to pay $210 in costs. Jones has admitted the allegations against him. We impose a public reprimand and charge Jones with the costs of this proceeding.

ANALYSIS

¶2. “This Court has exclusive and inherent jurisdiction in matters pertaining to attorney discipline.” We review bar matters de novo. When another jurisdiction imposes discipline on an attorney licensed in Mississippi, we may impose a reciprocal sanction. The first jurisdiction’s findings conclusively establish that the attorney committed misconduct, and we consider only the appropriate sanction to impose. The sanction we impose “may be less or more severe than the discipline imposed by the other jurisdiction.”

¶ 3. But while we are empowered to impose a different sanction than the first jurisdiction, we have concluded that “[o]nly under extraordinary circumstances should there be significant variance from a sanction imposed by the foreign jurisdiction.” Because we take “the cold record of the foreign jurisdiction as conclusive ... deference must be afforded to the foreign jurisdiction’s findings.”

¶4. “We have held in attorney discipline matters that the purpose of discipline is not simply to punish the guilty attorney, but to protect the public, the administration of justice, to maintain appropriate professional standards, and to deter similar conduct.” To that end, we apply “a proportionality requirement to Bar discipline cases,” and consider the nature of the misconduct, the need to deter similar misconduct, the need to protect the dignity and reputation of the legal profession, the need to protect the public, and the sanctions imposed in similar cases.

¶ 5. Tennessee determined that Jones had violated his duties to provide diligent representation, to communicate with his client, and to expedite litigation, all of which amounted to conduct detrimental to the administration of justice. These failures resulted in his client’s case being dismissed twice. We see no exceptional circumstance under our proportionality test that would cause us to depart from the sanction imposed by Tennessee.

¶6. In Mississippi Bar v. Walls, we imposed a public reprimand when an attorney’s failure to comply with the requirements of the Mississippi Tort Claims Act resulted in the dismissal of his client’s case. There, the attorney admitted that he had violated his ethical duties of diligence and communication. Performing our proportionality review, we determined that a public reprimand was the appropriate sanction. Given the similarity between Walls’s and Jones’s misconduct, and the fact Jones has admitted his misconduct just as Walls did, we see no exceptional circumstance justifying a departure from the sanction imposed by Tennessee.

CONCLUSION

¶ 7. Because Jones violated his ethical obligations to provide diligent representation, to communicate with his client, and to expedite litigation, resulting in conduct detrimental to the administration of justice, we impose a public reprimand and tax Jones with $210 . in costs, of, this appeal, Ordinarily, public reprimands are carried out by the senior circuit judge in the attorney’s county of residence. -But.-Jones resides in Memphis, Tennessee. So, as we have done before, we- order that the reprimand be carried out in the Circuit Court of Desoto County.

¶ 8. Therefore, we direct that Jones shall appear the first day of the next term of the' Circuit Court of DeSoto County after which this decision is issued, to be publicly reprimanded in open court by the presiding judge. Likewise, the Bar shall recover from Jones $210 in costs, upon the Bar’s proper filing of a motion within ten days after this decision issues.

¶ 9. ■ SAMUEL JONES SHALL BÉ PUBLICLY REPRIMANDED IN OPEN COURT BY THE PRESIDING JUDGE ON THE FIRST DAY OF THE NEXT TERM OF THE DESOTO COUNTY CIRCUIT COURT AFTER ISSUANCE OF THIS OPINION AND ASSESSED $210 IN COSTS.

WALLER, C.J., RANDOLPH, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . Jones had initiated a divorce proceeding for a client but took no action, and the court dismissed the case. Jones then successfully petitioned the court to set aside its dismissal, but he took no further action, and the case was dismissed a second time.

      . Miss. Bar v. Drungole, 913 So.2d 963, 966 (Miss.2005) (citing R. Discipline Miss. State Bar 1(a)).

      . Drungole, 913 So.2d at 966 (citing Gex v. Miss. Bar, 656 So.2d 1124, 1127 (Miss.1995)).

      . R. Discipline Miss. State Bar 13.

      . Id.

        . Id.

      . Drungole, 913 So.2d at 970.

      . Id.

      . Id. at 967 (citing Miss. Bar v. Coleman, 849 So.2d 867, 875 (Miss.2002); Cotton v. Miss. Bar, 809 So.2d 582, 585 (Miss.2000); Miss. State Bar Ass'n v. A Miss. Attorney, 489 So.2d 1081, 1084 (Miss.1986)).

      . Drungole, 913 So.2d at 967 (citing Pitts v. Miss. State Bar Ass’n, 462 So.2d 340 (Miss.1985); Miss. Bar v. Pels, 708 So.2d 1372, 1375 (Miss.1998)).

      . Miss. Bar v. Walls, 890 So.2d 875, 876 (Miss.2004).

      . Id. at 877.

      . Id. at 877-79.

      . Miss. Bar v. Abioto, 987 So.2d 913, 916 (Miss.2007).

      . Id.


source: Caselaw Access Project

author: MICHAEL K. RANDOLPH, Presiding Justice,

license: Public Domain

text:
    The MISSISSIPPI BAR, Appellant v. Neal H. LABOVITZ, Appellee.
    No. 2015-BD-01305-SCT.
    Supreme Court of Mississippi.
    May 11, 2016.
   ORDER

MICHAEL K. RANDOLPH, Presiding Justice,

for the Court:

¶ 1, The Mississippi Bar filed a formal complaint pursuant to Rule 13 of the Rules of Discipline for the Mississippi State Bar, seeking disciplinary action against Attorney Neal H. Labovitz, following his permanent disbarment from the United States Bankruptcy Court for the Northern District of Mississippi. We find that Labo-vitz’s conduct clearly constitutes a violation of our Rules of Professional Conduct, and we order that Labovitz be disbarred.

I.

¶ 2. The following facts are taken from In re Dobbs, 535 B.R. 675 (Bankr.N.D.Miss.2015).

¶3. In 2013, Jackey Dobbs and his then-wife, Janette, filed a joint Chapter 13 Voluntary Petition (“2013 ease”). Labovitz was counsel of record for the debtors. After numerous objections to confirmation of the 2013 Plan were filed by creditors, the court ordered the debtors to file an amended plan. The debtors failed to file an amended plan, and the 2013 case was dismissed.

¶ 4. In March 2015, a new petition and First Certificate was filed solely on behalf of Mr. Dobbs, alleging that the debtor had completed his mandatory credit counseling. Labovitz was again listed as counsel of record. In April 2015, Labovitz moved to withdraw as counsel. A Second Certificate was filed by the Debtor’s new attorney, William Fava, informing the court that the debtor had completed mandatory credit counseling in April. Because debtors are required to obtain credit counseling prior to filing for bankruptcy, the court entered an order scheduling a show-cause hearing as to why credit counseling had not been obtained prior to filing for bankruptcy.

¶ 5. At the show-cause hearing, the debtor testified that he was not aware that Labovitz had filed the 2015 Petition, nor had the debtor obtained credit counseling as alleged in the First Petition. He testified that he had not authorized Labovitz to file the 2015 Petition, nor had he signed the Petition. After this hearing, the court issued a show-cause order to Labovitz.

¶ 6. Labovitz sent the bankruptcy court a letter addressing his involvement in the 2015 Petition.

In the May 26 Letter, Mr. Labovitz wrote the Court that he “received a call from Mrs. Dobbs, after the old case was dismissed, stating that she had spoken to Mr. Dobbs and wanted [Mr. Labovitz] to file a new case so that [the Debtor] would not lose the larger piece of property that was his mother’s.” [May 26 Letter, Case No. 15-11096; Dkt #37] Mr. Labovitz also informed the Court that “Mrs. Dobbs completed the credit counseling on the phone with [his] staff because she was unable to get to a computer in time for the filing.” Id. Mr. Labovitz did not refute the allegation that the Debtor had not signed the 2015 Petition, taken the credit counseling course and/or signed the First Certificate. However, Mr. Labovitz did allege that the Debtor “was told both one and two days prior to the filing that it was being filed on his behalf.” Id. The last assertion, in particular, was completely at odds with the Debtor’s credible description of events at the May 12 hearing.

Dobbs, 535 B.R. at 682. Labovitz also informed the court that he was aware the debtor and Mrs. Dobbs had separated when he filed the 2015 Petition on behalf of Mr. Dobbs at Mrs. Dobbs’s request. Labovitz attached two affidavits to his letter to the court—one from Mrs. Dobbs and one from Labovitz’s assistant. Both corroborated Labovitz’s version of the events.

¶ 7. The bankruptcy court conducted a show-cause hearing in July, and Labovitz was provided an opportunity to further explain his actions in filing the 2015 Petition. However, Labovitz did not present any new evidence, nor did he bring any witnesses to testify before the bankruptcy court.

At the Show Cause Hearing, Mr. Labo-vitz freely admitted that Mrs. Dobbs, not the Debtor, had taken the [credit counseling] course, over the phone, using a member of Mr. Labovitz’s staff as an intermediary. He attempted to justify this action by saying that Mrs. Dobbs had taken the course in the Debtor’s stead when the then-couple had filed a joint case in the past, as if that conduct had been permissive. Mr. Labovitz did not fully explain why he felt as though the impersonation was appropriate, especially given that the 2015 case was not another joint case, but one solely for the Debtor.
Mr. Labovitz further reasoned to the Court that he felt as though filing for the Debtor was necessary to stay a pending foreclosure on the mobile home in which the Debtor lived. He did not explain, however, why he felt as though the filing was a decision appropriately made by either the Debtor’s estranged wife, or himself, rather than the Debtor.

Id. at 683.

118. The bankruptcy court concluded that “in filing the 2015 Petition and First Certificate, Mr. Labovitz has acted in bad faith and has violated a myriad of Bankruptcy Code provisions, Federal and Local Rules of Bankruptcy Procedure, and ethical rules imposed by the Mississippi Rules of Professional Conduct.” Id. On its findings, the bankruptcy court permanently disbarred Labovitz from the practice of law in the United States Bankruptcy Court for the Northern District of Mississippi.

II.

¶ 9. This Court has the duty and exclusive authority to discipline Mississippi attorneys. See M.R.D. 1(a). While we may delegate the fact-finding process to others, such as the Mississippi Bar, its trifyunals, or courts in other jurisdictions, the final decision on whether particular conduct .constitutes a violation of our rules of professional conduct and of discipline rests with this Court. Absent an abuse of discretion, we often have granted deference to the findings of others. See Miss. Bar v. Ishee, 987 So.2d 909, 911 (Miss. 2007) (citing Miss. Bar v. Gardner, 730 So.2d 546, 547 (Miss.1998)). Yet this Court should never abandon its obligation of reaching its own independent decision concerning the sanctioning of Mississippi attorneys. See Terrell v. Miss., 662 So.2d 586, 589 (Miss.1995); Miss. State Bar v. Strickland, 492 So.2d 567, 571 (Miss.1986). The Bar acknowledges that Labovitz was an active member of the Mississippi Bar and was in good standing at the time of this complaint.

¶ 10. The Mississippi Bar recommends the imposition of reciprocal discipline by this Court against Labovitz for engaging in unprofessional and unethical conduct evincing unfitness for the practice of law. Labovitz has been disciplined by Complaint Tribunals on three separate occasions. On January 30, 2013, Labovitz was suspended for thirty days for violations of Rules 1.2(a), 1.3, 1.4(a), 1.16(d), 5.3(b), 5.3(c), 5.5(b), 8.4(a), and 8.4(d) of the Mississippi Rules of Professional Conduct. See Miss. Bar v. Labovitz, Cause No.2012-B-1233 (Miss.2013). On May 21, 2008, Labovitz was issued a public reprimand with a three-year probation period for violations of Rules 5.3(a) and 5.5(b). See Miss. Bar v. Labovitz, Cause No.2007-B-2163 (Miss.2008). On January 12, 2006, Labovitz was issued a private reprimand for a violation of Rule 7.2(i). See Miss. Bar v. Labovitz, Cause No.2005-B-871 (Miss.2006). Additionally, the Committee on Professional Responsibility has disciplined Labovitz. See Docket No. 12-491-2 (private reprimand for violation of Rule 1.3); Docket No. 98-023-1 (public reprimand for violations of Rules 1.2, 1.3, 1.4, 1.16, 3.2, 8.1(b), 8.4(a), and 8.4(d)); and Docket No. 97-285-2 (private reprimand for violation of Rules 1.2(a), 1.3, and 1.4(a)).

¶ 11. Labovitz did not file an answer or responsive brief with this Court; therefore, the Bar’s arguments are uncontested. Instead, Labovitz filed only a Motion to Continue or Stay All Proceedings based upon his filing a Motion to Reopen the bankruptcy proceedings in the bankruptcy court.

¶ 12. This Court may impose a sanction which is either more or less severe than the sanction imposed by another jurisdiction. Ishee, 987 So.2d at 911 (citing Miss. Bar v. Gardner, 730 So.2d 546, 547 (Miss.1998)).

In assessing a sanction in an attorney discipline case, this [C]ourt applies the following nine criteria: (1) the nature of the misconduct involved; (2) the need to deter similar misconduct; (3) the preservation of the dignity and reputation of the profession; (4) the protection of the public; (5) the sanctions imposed in similar cases; (6) the duty violated; (7) the lawyer’s mental state; (8) the actual or potential injury resulting from the misconduct; and (9) the existence of aggravating and/or mitigating factors.

Rogers v. Miss. Bar, 731 So.2d 1158, 1171 (Miss.1999) (quoting Miss. Bar v. Felton, 699 So.2d 949, 951 (Miss.1997)). “The accused attorney may offer this Court any mitigating factors which he thinks serve to diminish his culpability and subsequently diminish the severity of the sanction to be imposed by this Court.” Dorhauer, 38 So.3d at 613 (citing Miss. Bar v. Strauss, 601 So.2d 840, 844 (Miss.1992)).

¶ 13. Upon review of the facts gleaned from the record before this Court and the bankruptcy court’s findings, it is clear that Labovitz’s conduct constituted a violation of pur ethical rules. Labovitz knowingly and willfully filed a bankruptcy petition on another individual’s behalf despite a lack of authority to do so, and then forged that individual’s signature on various documents presented to the bankruptcy court. This conduct clearly constitutes a violation of Rules 3.3(a) and 8.4(c) and (d). The egregiousness of his actions combined with his history of ethical violations warrants disbarment.

¶ 14. Labovitz offered no mitigating factors to the Bar or this Court for consideration. Labovitz failed to cite a single “extraordinary circumstance[ ] which [would] compel, justify or support variance” from the bankruptcy court’s sanction. Miss. Bar v. Drungole, 913 So.2d 963, 970 (Miss.2005).

III.

¶ 15. IT • IS THEREFORE, ORDERED, ADJUDGED, and DECREED as follows:

1. Neal H. Labovitz is hereby permanently DISBARRED from the practice of law in the State of Mississippi- :
2. This order shall constitute notice of permanent, disbarment in this cause.
3. The Clerk of the Mississippi Supreme Court shall forward an attested copy of this order to Neal H. Labovitz and the Executive Director of the Mississippi Bar, and’ to the Mississippi Executive Director’s counterpart with the United States Bankruptcy Court for the Northern District of Mississippi. ■
4. Neal R. Labovitz shall, within thirty days following entry of this order, notify clients and affected courts of his disbarment and comply with all other requirements applicable to disbarred attorneys pursuant to Rule ■ 11 of the Rules of Discipline for the Mississippi Bar.
5. Neal H. Labovtiz shall file, within forty-five days following entry of this order, an affidavit with this Court stating that all of his clients have been notified of his disbarment 'and his consequent inability to prac- - tice law in the State of Mississippi and that he has fully complied with ■ all requirements set forth in Rule 11 of the Rules of Discipline for the Mississippi Bar.
6. The Mississippi Bar shall1 have and recover from Neal H. Labovtiz all of its costs and expenses of this disciplinary action.
7. Labovitz’s Motion to Continue or Stay All Proceedings and the Bar’s Motion for Immediate Suspension are dismissed as moot.

SO ORDERED.

/s/ Michael K Randolph MICHAEL K. RANDOLPH, PRESIDING JUSTICE FOR THE COURT

COLEMAN, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION.

LAMAR, J„ NOT PARTICIPATING.

      . The bankruptcy court heard argument- on Labovitz’s motion to reopen the bankruptcy case and determined that the motion should be denied under Rule 60 of the Federal Rules of Civil Procedure. Labovitz's motion to continue or stay is dismissed as moot.

      . Miss. Rules of Prof’l Conduct 3.3(a) (prohibiting a lawyer from "knowingly ... mak[ing] a false statement of material fact or to a tribunal”); 8.4(c) (providing that it "is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation”); and 8.4(d) (providing that it "is professional misconduct for a lawyer to ... engage in conduct that is prejudicial to -the administration of justice”).


author: LAMAR, Justice,

text:
    John Allen DERIVAUX, Jr. v. THE MISSISSIPPI BAR.
    No. 2016-BR-00084-SCT.
    Supreme Court of Mississippi.
    July 28, 2016.

      Appellant, Pro Se.
    Adam Bradley Kilgore, attorney for ap-pellee.
   LAMAR, Justice,

for the Court:

¶ 1. John Allen Derivaux Jr. brings his Petition for Reinstatement to the Mississippi Bar following a two-year suspension. The Mississippi Bar v. J. Allen Derivaux, Jr., 167 So.3d 164 (Miss.2014) (Derivaux I). Because we find Derivaux has complied with the requirements for reinstatement and has demonstrated full rehabilitation along with the requisite moral character to practice, we accept the Bar’s recommendation and grant Derivaux’s petition.

FACTS & PROCEDURAL HISTORY

¶ 2. Derivaux is a resident of Vicksburg, where (prior to his suspension) he practiced law as a solo practitioner, focusing primarily in real estate, domestic relations, and youth-court representation. As a part of his real estate practice, Derivaux had a title agency agreement with a title insurance company which allowed him to write and sell title insurance. This agreement was terminated in January 2009, but Deri-vaux continued to hold himself out to lenders and third parties as a title insurance agent. He altered forms used in previous transactions by “cutting” and “pasting” information in such a way that the old forms appeared authentic. Derivaux then collected premiums for the fraudulent title insurance policies and placed these funds in his lawyer trust account. Consequently, the Bar initiated an action against Deri-vaux for violation of Mississippi Rules of Professional Conduct 1.15(b), 8.4(a), 8.4(b), 8.4(c), and 8.4(d).

¶ 3. The Mississippi Bar Complaint Tribunal initially ordered disbarment for Der-ivaux; though, following a Motion to Reconsider and a subsequent hearing, the Tribunal amended its decision and ordered Derivaux suspended from the practice of law for two years. The Mississippi State Bar appealed and this Court affirmed the two-year suspension, which began on November 18, 2011. Derivaux I, 167 So.3d 164.

¶ 4. After his two-year suspension expired, Derivaux filed his first Petition for Reinstatement in March 2014. The Bar filed a Motion to Dismiss the Petition, arguing that it was deficient under Mississippi Rule of Discipline 12.7 and Mississippi caselaw. This Court agreed with the Bar and determined that “Derivaux’s Petition also fail[ed] to demonstrate that he possess[ed] the requisite legal education to be reinstated.” Derivaux v. The Mississippi Bar, 144 So.3d 1246, 1249 (Miss.2014) (Derivaux II). Accordingly, this Court held that Derivaux’s petition did not satisfy the requirements “set forth in Rule 12.7 of the Mississippi Rules of Discipline” and granted the Bar’s Motion to Dismiss. Id.

¶ 5. Subsequently, Derivaux filed a second Petition for Reinstatement. In response, the Bar conducted an investigation to determine whether Derivaux was entitled to reinstatement. This investigation included a lengthy deposition of Derivaux. In its Answer, the Bar found that Deri-vaux had satisfied the burden of proof required by this Court to demonstrate that he is worthy of reinstatement. Accordingly, the Bar supports Derivaux’s reinstatement.

STANDARD OF REVIEW

¶ 6. This Court “has exclusive and inherent jurisdiction of matters pertaining to attorney discipline, reinstatement, and appointment of receivers for suspended and disbarred attorneys.” In re Morrison, 819 So.2d 1181, 1183 (Miss.2001) (quoting In re Smith, 758 So.2d 396, 397 (Miss.1999)). We review the evidence in disciplinary matters de novo, “on a case-by-case basis as triers of fact.” Id.

DISCUSSION

Derivaux’s Petition for Reinstatement fully satisfies the requirements set forth by Rule 12 of the Mississippi Rules of Discipline.

¶7. The fundamental issue in a reinstatement case is “whether [the attorney] has rehabilitated himself in conduct and character since the suspension was imposed.” In re Steele, 722 So.2d 662, 664 (Miss.1998). The Petitioner bears the burden of proving by clear and convincing evidence that he has rehabilitated himself by complying with the requirements of Rule 12, which provides that:

(a) No person disbarred or suspended for a period of six months or longer shall be reinstated to the privilege of practicing law except upon petition to the Court.
(b) Reinstatement to the practice of law following any discipline shall be only upon proof of compliance with any such sanctions.

Miss. R. Discipline 12(a)—(b). In re Petition of Benson for Reinstatement, 890 So.2d 888, 890 (Miss.2004). In Benson, we set forth five requirements which apply to Rule 12 reinstatement petitions. The Petitioner must demonstrate such rehabilitation by: (1) stating the cause or causes for suspension or disbarment, (2) providing the names and current addresses of all persons, parties, firms, or legal entities who suffered pecuniary loss due to improper conduct, (3) making full amends and restitution, (4) showing requisite moral character for the practice of law, and (5) demonstrating the requisite legal education. Id. Further, this Court also will consider the Bar’s position as to reinstatement. Id.

I. Cause for Disbarment and Suspension

¶ 8. Derivaux’s petition fully (though succinctly) acknowledges the behavior which led to his suspension. He states that by forging title insurance binders, misrepresenting himself as a title agent to clients and third parties, and collecting premiums for nonexistent policies, he directly violated Mississippi Rules of Professional Conduct 8.4(d), 1.15, and 8.4(a). Further, as noted in the Mississippi Bar’s Answer to his petition, Derivaux testified about the actions which lead to his suspension, acknowledging the forgery and the duration of his participation in the fraud.

¶ 9. Through both his petition and deposition testimony, we find that Derivaux has satisfied this requirement.

II. Names and Addresses of Those Suffering Pecuniary Loss

¶ 10. Attached as an exhibit to his petition, Derivaux provided a list of the individuals who suffered pecuniary loss due to his misrepresentation, forgery, and collection of premiums for the nineteen policies and loan closings in question. These names are accompanied by physical addresses for each of the parties. Therefore, we find that Derivaux has satisfied this requirement.

III. Full Amends and Restitution to Those Suffering Pecuniary Loss

¶ 11. In its November 18, 2011, order, the Mississippi Bar Complaint Tribunal required Derivaux to remit full restitution in the amount of $8,800: $7,884 -in funds for the premiums he improperly collected and the remaining amount to the Bar for fees related to an interpleader action filed by the Tribunal. Derivaux pleads that he timely deposited the required $8,800 with the Bar. In its answer, the Bar confirms that the funds were received and the matter was closed on February 13, 2013. As a result, we find that Derivaux has satisfied this requirement.

IV. Requisite Moral Character

¶ 12. In support of the fourth requirement, Derivaux describes (among other attributes) his activity as a civil servant prior to his suspension, including service as a Judge Advocate General Corps officer, his service in the United States Naval Reserve, and his position as a Vicksburg Municipal Court Judge. He also notes his active involvement in .the community, which resumed shortly after the sudden death of his wife in 2010. In its answer, the Bar organized further evidence of Der-ivaux’s requisite moral character in the following categories:

a. Charitable Activities

¶ 13. Throughout his deposition, Deri-vaux described active involvement with his church and other community organizations, much of which supports the interests of his five minor children. Derivaux testified that, after he was married, -he and his wife stopped attending church; though, following' his wife’s death, he returned,, to St. Paul’s Catholic Church, where he serves as an usher, a youth leader, and- a committee member. Through the church, he became active with the Knights of Columbus and Meals on Wheels. Further, he has assisted with a local chapter of the Cub Scouts, Vicksburg Catholic Schools’ Advisory Council, his child’s 'high school band booster club, and his daughter’s soccer team (as the parent coordinator).

b. Personal Recommendations

¶ 14, Derivaux’s petition includes forty-eight letters in support of his reinstatement to the practice of law. Attached to the Bar’s Answer are four additional letters it received prior to filing its response. These letters of support came from various sources: twenty-two practicing Vicksburg attorneys, including the District Attorney of Warren County and the Vicksburg City Attorney, two Mississippi-licensed attorneys living in Texas, the current Mayor of Vicksburg, two former mayors of Vicksburg, a circuit court employee and a municipal court employee, two clergy members, and several family members,' friends, former employers, and colléagües. In his deposition, Derivaux testified that each of these references was- made aware of the reason for his suspension prior -to drafting their letters.

• c. Personal Capacity

¶ Í5. As part of the suspension order, Derivaux was required to participate in the Lawyers and Judges Assistance Program (LJAP). Included in Derivaux’s petition is the Disciplinary Referral Contract initiating his participation in two years of discipline monitoring under the program. In a letter submitted by the Bar, Program Director Chip Glaze attested that Derivaux fully complied with all requirements of the program, including one-on-one counseling sessions with a program-approved psychiatrist. As of January 2016, Derivaux testified that he continues to meet with this psychiatrist, although it is no longer required.

d. Employment History Since Suspension

¶ 16. Since his suspension, Derivaux has engaged in various types of employment to support his children. Over the course of the past four school terms, he has worked as a substitute teacher at: Vicksburg High School (2012-2013), Vicksburg Catholic School (2012-2015), Vicksburg Alternative School (2013-2014), and Warren Central High School (2012-2015). Additionally, Derivaux often worked for a landscaping company, completed handyman projects (i.e., carpentry and repair jobs), and managed rental properties. Derivaux also worked in a clerical capacity for an oil and gas landman, retrieving documents of oil ownership, and he prepared a title abstract for David Sessums. Deri-vaux did pot hold himself out as a lawyer or engage in the unauthorized practice of law. in any of these capacities.

¶ 17. Currently, Derivaux works as a high school theology and social studies teacher at Vicksburg Catholic School. He works full-time and is responsible for four classes.

. ¶ 18. Throughout his petition and in his deposition testimony, Derivaux not only candidly admits responsibility for the actions that led to his suspension but indicates a renewed commitment to his family, his community, and the legal profession. To substantiate these commitments, the Bar’s response points specifically to Deri-vaux’s community involvement—both in his current employment and his civic activities. Further, Derivaux’s treatment through LJAP and its approved psychiatrist have led both the program director and Derivaux’s therapist to conclude that it is unlikely he will ever resume the behaviors which ultimately led to his suspension. Accordingly, we find that Derivaux has shown sufficiently that he has the requisite moral character to practice law in Mississippi.

V. Requisite Legal Education for Reinstatement

¶ 19. Derivaux details through his petition and deposition testimony that he: (1) completed the Multi-State Professional Responsibility Exam (MPRE), achieving a passing score of 92, (2) participated in various Continuing Legal Education (OLE) seminars by which he accumulated forty-eight and one-half hours of credit, and (3) regularly reviews this Court’s hand-down list along with the Mississippi Code, advance sheets to stay current with Mississippi’s changing laws. As such, we find that Derivaux has satisfied this requirement.

CONCLUSION

¶ 20. We find that John Allen Derivaux Jr. has met his burden of proving to this Court by clear and convincing evidence that he exhibits both moral and professional rehabilitation (see Holmes v. Miss. Bar, 602 So.2d 847, 854 (Miss.1992)) as well as an “outward manifestation sufficient to convince a reasonable mind clearly that [he] has reformed.” Williams v. Miss. State Bar Ass’n, 492 So.2d 578, 580 (Miss.1986), His petition and deposition testimony fully satisfy the requirements of Mississippi Rule of Discipline Rule 12. Accordingly, this Court grants Derivaux’s Petition for Reinstatement. We also hold that, upon reinstatement to the Bar, Deri-vaux shall complete a Continuing Legal Education course related to law-office management that specifically addresses the management of a lawyer trust account, as recommended by the Bar. Derivaux shall work with the Bar to find a course which satisfies this requirement.

¶ 21. PETITION OF JOHN ALLEN DERIVAUX FOR REINSTATEMENT TO THE PRACTICE OF LAW IN THE STATE OF MISSISSIPPI IS CONDITIONALLY GRANTED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, COLEMAN, MAXWELL AND BEAM, JJ., CONCUR.

      . The Bar cites Williams v. Mississippi State Bar Association, 492 So.2d 578, 580 (Miss.1986) (holding that a disbarred attorney had shown sufficient proof of facts which would justify reinstatement), in support of its finding.


author: ISHEE, J.,

text:
    Jimmy T. BROWN a/k/a Jimmy Brown, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01416-COA
    Court of Appeals of Mississippi.
    04/25/2017
    Rehearing Denied September 12, 2017

      ATTORNEYS FOR APPELLANT: JEANINE M. CARAFELLO,. ROSS R. BARNETT JR.
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD', DISTRICT ATTORNEY: JOHN W. CHAMPION -
    BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.
   ISHEE, J.,

FOR THE COURT:

¶ 1. In November 20J.3, Jimmy T. Brown was indicted for one count of fondling his granddaughter when she 'was under the age of eighteen, in violation of Mississippi Code Annotated section 97-5-23(2) (Rev. 2014), and one count of fondling his granddaughter when she was under the age of sixteen, in violation of section 97-5-23(1). Brown proceeded to trial in the DeSoto County Circuit Court, where a jury found him guilty on both counts. On Count I, Brown was sentenced to a ten-year suspended sentence, with ten.years of post-release supervision, to run consecutively to the sentence for Count II. On Count II, Brown received a sentence of five years in the custody of the Mississippi Department of Corrections (MDOC). Brown was ordered to pay $1,000 in restitution to the Mississippi Children’s Trust Fund. He now appeals.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. V.B. is the granddaughter of Brown, and was twenty-one years of age at the time of trial. When V.B. was approximately three years old, her parents divorced, resulting in her living with her mother and father separately at different times in her life. She first went to live with her father in DeSoto County, .Mississippi, when she was around seven years old. V.B. spent a great deal of time with her grandfather during the time she lived with her father. At trial, V.B. testified that on multiple occasions, when she was between the ages of eight and thirteen, Brown digitally penetrated her when she and Brown were alone at Brown’s home. She further testified that sometime around the age of thirteen, she moved to Oklahoma to live with her mother. V.B. moved back to live with her father, however, when she was sixteen years old. At that time, V-B. explained that the sexual abuse resumed, .and continued to take place until the last incident occurred when she was nineteen years old.

¶3. V.B. testified that'when she was either sixteen or seventeen years old, Brown penetrated her with his penis. V.B. also elaborated on other instances regarding what Brown did to her, and where the specific acts took place. While V.B. knew that the abuse took place between the ages of eight and thirteen, and again between the ages of sixteen and nineteen, she could not provide specific dates due to the recurring nature of the sexual acts. It was- not until July 2013 that V.B. confided in her brother that she had been sexually abused by Brown. Her brother then informed V.B,’s mother regarding the information, which led' V.B. to eventually report the abuse to the DeSoto County Sheriffs Department.

114, Detective Jerry Owensby of the sheriffs department began an investigation into the matter. During the course of his investigation, Owensby interviewed V.B., V.B.’s mother, and other family members. At trial, V.B.’s mother corroborated V.B.’s testimony regarding the time-line of abusive events. Her mother- also explained that she worked with authorities to help further corroborate V.B.’s allegations. In doing so, V.B.’s mother placed a phone call to Brown in the presence of Owensby, and.the phone call was recorded. The phone call was played in the presence of the jury, and included Brown confirming that he had made inappropriate contact with V.B. at his. home while Brown’s wife was at work, Though. Brown initially denied having sexual intercourse with V.B., he eventually admitted that he had done so to VJB.’s mother.

¶ 5. Following the phone call, Brown was taken into custody by Owensby and interrogated at the sheriffs department. Brown was properly read his Miranda rights, acknowledged that- he understood those rights, and waived them. Brown offered to tell Owensby whatever he needed to avoid arrest, but Owensby repeatedly told Brown to tell him the truth. Ultimately, Brown stated that V.B. had pulled her pants down, that she revealed her- private parts to him, and that he touched those parts of V.B. Brown claimed V.B. was approximately seventeen or eighteen years of age at that time, and that he informed his wife afterwards. Brown" additionally admitted to touching V.B.’s vagina at least four or five times total, all while being in a position of trust and authority over her. Brown, however, denied ever having sex with V.B. to Owensby.

¶ 6. Brown proceeded to trial, and was convicted by a jury on two counts of gratification of lust. Brown filed posttrial motions for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The circuit court denied Brown’s motions. Brown now appeals. Finding no error, we affirm.

DISCUSSION

¶ 7. On appeal, Brown asserts that the indictment failed to adequately notify him of the nature and cause of the accusations, rendering it defective; that the State failed to prove the essential elements of the crimes charged; that the circuit court erred in denying his motion to suppress; and that he received ineffective assistance of counsel. We disagree.

I. The indictment provided Brown with sufficient notice of the charges against him.

¶8. Brown asserts that his indictment was defective, as it did not contain specific dates, and thus, did not sufficiently notify him of the charges against him. “The question of whether an indictment is defective is an issue of law and therefore deserves a relatively broad standard of review, or de novo review, by [an appellate c]ourt.” Tapper v. State, 47 So.3d 95, 100 (¶ 17) (Miss. 2010). Under Uniform Circuit and County Court Rule 7.06, “[t]he indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” Expanding on Rule 7.06, the Mississippi Supreme Court has held that an indictment must contain: (1) the essential elements of the offense charged; (2) sufficient facts to fairly inform the defendant of the charge against which he must defend; and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense. Berry v. State, 996 So.2d 782, 786 (¶ 8) (Miss. 2008) (quoting Gilmer v. State, 955 So.2d 829, 836-37 (Miss. 2007)).

¶9. The indictment that Brown now challenges reads as follows:

Count I: That JIMMY T. BROWN, Late of the County and State aforesaid, between the dates of July 1, 2009[,] and June 30, 2011, and within the jurisdiction of this Court, did willfully, unlawfully and feloniously, for the purpose of gratifying his lust or indulging his depraved licentious sexual desires, handle, touch or rub with his hands or any part of his ... body or any member thereof, [V.B.], a child under the age of eighteen (18) years and not the spouse of [ JBROWN; and the said [ ]BROWN being at the time a person above the age of eighteen (18) years and occupying a position of trust or authority over the said [V.B.], in direct violation of Section 97-5-23(2), Mississippi Code 1972 Annotated ....
Count II: That JIMMY T. BROWN, Late of the County and State aforesaid, between the dates of July 1, 2001[,] and June 30, 2007, and within the jurisdiction of this Court, did willfully, unlawfully and feloniously, for the purpose of gratifying his lust or indulging his depraved licentious sexual desires, handle, touch or rub with his hands or any part of his ... body or any member thereof, [V.B.], a child under the age of sixteen (16) years and not the spouse of [ ]BROWN; and the said [ ]BROWN being at the time a person above the age of eighteen (18) years and occupying a position of trust or authority over the said [V.B.], in direct violation of Section 97-5-23, Mississippi Code 1972 Annotated

Brown alleges that the identical language and time spans set forth in each count deprived him of establishing “any defense other than denial.” Brown also asserts that the charges were “indistinguishable.” We find no merit to these arguments.

¶ 10. In each count, the State alleged that Brown, being a person over the age of eighteen and in a position of trust or authority over V.B., fondled V.B. when she was under the age of eighteen, and that Brown also did so when V.B. was under the age of sixteen. The indictment included the dates V.B. lived in Mississippi, which are the times in which Brown had access to V.B. Thus, the indictment informed Brown that he was being charged with fondling his granddaughter when she was between the ages of sixteen and seventeen, and again when she was between the ages of eight and thirteen. The State needed only to prove that Brown inappropriately fondled V.B. at least once during the time spans alleged.

¶ 11. Generally, an indictment tracking the language of the criminal statute is sufficient to inform the defendant of the charged crime. Batiste v. State, 121 So.3d 808, 836 (¶48) (Miss. 2013). And as Brown concedes, a specific date is not required so long as the defendant is fully and fairly informed of the charges against him. Morris v. State, 595 So.2d 840, 842 (Miss. 1991). Therefore, “it is important that a defendant be given the specific date or dates of the alleged acts if at all possible.” Wilson v. State, 515 So.2d 1181, 1183 (Miss. 1987) (emphasis added). Failure to provide specific dates alone, however, does not render the indictment defective. Morris, 595 So.2d at 842. Here, the State could not provide exact dates as V.B. herself could not recall specific dates due to the recurring nature of the abusive acts. Furthermore, specific dates of the alleged sexual abuse are not essential elements of the crime charged—rather, the victim’s age is. Even so, the exact age of the victim is not required. In this regard, the indictment specified that V.B. was under the ages of eighteen and sixteen, respectively,. as required by the statute. Thus, as “[t]he primary purpose of an indictment is to give a defendant fair notice of the crime charged,” we find that Brown’s indictment sufficiently tracks the language of sections 97-5-23(1) and 97-5-23(2), fully notifying him of the nature and cause of the charges against him. Williams v. State, 169 So.3d 932, 935 (¶ 9) (Miss. Ct. App. 2014). This issue is without merit.

II. The State provided sufficient evidence to prove each essential element of the crimes charged, and the verdict is not against the overwhelming weight of the evidence.

¶ 12. Brown asserts that the State put forth no evidence of V.B.’s age during any of the alleged acts, or even of what alleged acts took place, thus failing to prove beyond a reasonable doubt each essential element of the crimes charged. In determining whether the State presented legally sufficient evidence to support the verdict, “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]’ ” Larry v. State, 200 So.3d 453, 459 (¶ 15) (Miss. Ct. App. 2016) (quoting Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005)). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, that the essential elements of the crime existed, this Court will affirm the conviction. Id. “This Court is not at liberty to reverse unless, with respect to one or more of the elements of -the charged offense, the evidence considered- is such that reasonable and fair-minded jurors could only find the accused not guilty." Miller v. State, 982 So.2d 995, 996 (¶ 4) (Miss. Ct. App. 2008) (quoting Green v. State, 887 So.2d 840, 845 (¶ 9) (Miss. Ct. App. 2004)). “Furthermore, the jury determines the credibility of witnesses and resolves conflicts in the. evidence.” Id. (citing Evans v. State, 725 So.2d 613, 680-81 (¶ 293) (Miss. 1997)).

¶ 13. Under Mississippi Code Annotated section 97-5-23(1), the State was required to prove that: (1) Brown was over the age of eighteen; (2) V.B. was under the age of sixteen; and (3) Brown gratified his lust by touching V.B.’s body with his hands or any other part of his body. In order to prove the essential elements of section 97-5-23(2), the State was required to prove that: (1) Brown was over the age of eighteen; (2) V.B. was under the age of eighteen; (3) Brown touched V.B.’s body with his hands or another part of his .body for the purposes of gratifying his lust; and (4) Brown held a position of trust or authority over V.B. at the time of the alleged offense. We find the State presented sufficient evidence regarding each essential element . of the crimes charged beyond a reasonable doubt.

¶ 14, V.B. testified to the actions taken by Brown, including Brown digitally penetrating her, placing his mouth on her vagina, and penetrating her with his penis. V.B. further testified to the time frames in which the repeated penetration took place, which she stated were when she was between the ages of seven and fourteen, and again when she was between the ages of sixteen and seventeen. Moreover,,the jury heard,Brown’s admission during his interrogation that he was in a position of authority and trust over V.B- at the time he committed the abusive actions. Thus, we find the verdict is supported by sufficient evidence presented by the State.

¶ 15. In addition, we find that the circuit court did not err in " denying Brown’s motion for a JNOV or, in the alternative, a new trial. “[This Court] will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). Therefore, the Court weighs the evidence “in the light most favorable to the verdict.” Id. If the Court disagrees with' the verdict of the jury, “the proper remedy is to grant a new trial.” Id. Brown asserts the same arguments as above to support that he is entitled to a new trial. We do not so find. The jury was presented with conflicting evidence, weighed that evidence, and reached a verdict. After reviewing the record and weighing the evidence in the" light - most favorable to the verdict, we cannot find that allowing the guilty verdict to stand would sanction an unconscionable injustice. This issue is without merit.

III. The circuit court did not abuse its discretion • by denying Brown’s motion to suppress.

¶ 16. Brown’s argument regarding the circuit court’s denial of his motion to suppress is two-fold. First, Brown asserts that the video-recording of his interrogation with Owensby should have been excluded. Second, Brown asserts that the video should have been excluded because .the interrogation stemmed from a recorded phone call between him and V.B.’s mother, which Brown alleges violated his Miranda rights and right to privacy. Ultimately, Brown argues that he did not knowingly, intelligently, or voluntarily waive his Miranda rights prior to the phone call, or his interrogation. Brown, however, did not present any argument before the circuit court regarding the exclusion of the audio-recorded phone call; as such, we are not required to address the merits of that contention as it is procedurally barred. See Webb v. State, 118 So.3d 592, 602 (¶ 35) (Miss. Ct. App. 2012) (holding that failure to specifically state grounds for excluding evidence waives the objection). For the sake of thoroughness, however, we will address both of Brown’s arguments under this heading as they pertain to fundamental rights protected by the Constitution.

¶ 17. “This Court will reverse a trial court’s denial of a motion to suppress only if the ruling is manifest error or contrary to the overwhelming weight of evidence.” Barnes v. State, 158 So.3d 1127, 1134 (¶ 22) (Miss. 2015). “The circuit court sits as a fact[-]finder when determining voluntariness of a confession, and its determination will not be reversed unless manifestly wrong.” Walker v. State, 197 So.3d 914, 917 (¶ 9) (Miss. Ct. App. 2016) (quoting Horne v. State, 825 So.2d 627, 639 (¶ 44) (Miss. 2002)). “Crucially, ‘the resolution of conflicting testimony regarding voluntariness is a question of fact to be resolved by the trial judge at the suppression hearing.’ ” Id. (quoting Chase v. State, 645 So.2d 829, 841 (Miss. 1994)). We will address the phone-call recording first, as Brown asserts its contents instigated Brown’s later interrogation.

A Audio-Recorded Phone Call

¶ 18. Brown contends that he was entitled to be warned, or Mirandized, at the outset of the phone call between himself and V.B.’s mother on the grounds that V.B.’s mother was acting pursuant to the instruction of Owensby when the call was placed. Brown further asserts that he detrimentally relied upon the belief that the phone call was of a personal nature rather than at the behest of a law-enforcement agent, and thus, his fundamental right to privacy was illegally violated. We disagree.

¶ 19. We find that Brown had no reasonable expectation of privacy in the phone conversation between himself and V.B.’s mother. In Bankston v. State, 4 So.3d 377, 380-81 (¶ 14) (Miss. Ct. App. 2008), this Court stated:

The Mississippi Supreme Court has held that “electronic surveillance, ‘bugging,’ does not tread upon the constitutional rights of the Fourth Amendment when the consent of one of the parties is first obtained. The expectation of privacy, though perhaps shaken by the mistaken belief that a person to whom one voluntarily confides will not reveal the conversation!,] does not reach constitutional proportions.” Everett v. State, 248 So.2d 439, 443 (Miss. 1971) (citing Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966)).

Applying this long-held principle to the present matter, the record clearly reflects that V.B.’s mother consented to the recording of her phone conversation with Brown. Brown assumed—albeit mistakenly—that V.B.’s mother would not convey the details of their conversation to law-enforcement officers. See Everett, 248 So.2d at 443. Therefore, we hold that Brown did not have a reasonable expectation of privacy during his incriminating conversation with V.B.’s mother.

¶20. In addition, Brown was not entitled to be informed of his right to remain silent at the outset of the phone call. As the State properly points out, “[u]nder Miranda, the accused must be warned of the right to remain silent and the right to an attorney before any custodial interrogation may occur.” Clark v. State, 40 So.3d 531, 541 (¶ 22) (Miss. 2010) (citing Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). “To be subject to custodial interrogation, one must be both in custody and undergoing interrogation.” Wilson v. State, 936 So.2d 357, 362 (¶ 11) (Miss. 2006). Here, Brown was neither in custody nor being interrogated during his conversation with V.B.’s mother. Therefore, Brown’s fundamental rights were not violated, and this issue is without merit.

B. Video-Recorded, Interrogation

¶ 21. Regarding the video-recording of the interrogation, Brown argues that the admissions he made through statements given during his interrogation were not freely and voluntarily given, but rather the product of extreme mental and physical duress, which took place throughout the interrogation. Brown’s trial counsel further asserted that Brown merely stated what he thought Owensby wished to hear in order to release Brown, and on that basis, Brown’s statements should have been excluded. The circuit court found otherwise.

¶ 22. After hearing argument from both sides at the suppression hearing, and reviewing the interrogation video in its entirety, the circuit-court judge specifically found that Brown was in no form of distress during the interrogation. The circuit court further found that Brown appeared to be an intelligent man, and that Owensby neither coerced Brown nor promised him anything in exchange for his statements. Reviewing the totality of the circumstances, the circuit court found that Brown knowingly, voluntarily, and intelligently waived his Miranda rights before making any statements. As result, the court held that Brown’s statements were freely and voluntarily given.

¶23. Reviewing the record before this Court, we cannot hold that the circuit court abused its discretion by admitting into evidence the phone-call recording and the interrogation video, as we find those decisions were not manifestly wrong or contrary to the overwhelming weight of evidence. Therefore, we find no merit to this issue.

IV. Assistance of Counsel

¶24. In this issue, Brown claims he received ineffective assistance from his trial counsel because his counsel (1) did not move to suppress the telephone recording between Brown and V.B.’s mother; (2) did not object to leading questions; and (3) did not move for a change of venue for Brown’s trial. We decline to address this issue on direct appeal.

¶ 25. Rule 22(b) of the Mississippi Rules of Appellate Procedure provides:

Issues which may be raised in post-conviction proceedings may also be raised on direct appeal if such issues are based on facts fully apparent from the record. Where the appellant is represented by counsel who did not represent the appellant at trial, the failure to raise such issues on direct appeal shall constitute a waiver barring consideration of the issues in post-conviction proceedings.

And the supreme court has held:

It is unusual for [an appellate c]ourt to consider a claim of ineffective assistance of counsel when the claim is made on direct appeal. This is because we are limited to the trial court record in our review of the claim[,] and there is usually insufficient evidence within the record to evaluate the claim .... [W]here the record cannot support an ineffective assistance of counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant’s right to argue the same issue through a petition for post-conviction relief. [An appellate c]ourt will rule on the merits on the rare occasions where (1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.

Wilcher v. State, 863 So. 2d 776, 825 (¶ 171) (Miss. 2003) (internal citations and quotations omitted).

¶ 26. Upon review, the record does not affirmatively indicate that Brown received ineffective assistance of constitutional dimensions. Nor have both parties explicitly stipulated that the record is adequate to allow us to make findings without considering a trial judge’s findings of fact. Gordon v. State, 977 So.2d 420, 425 (¶ 9) (Miss. Ct. App. 2008). As a result, we decline to address this issue. Thus, we dismiss Brown’s claims under this heading without prejudice to his ability to raise them in postconviction proceedings, if he chooses to do so.

V. Clerical Error

¶ 27. Finally, we have identified an apparent clerical error in the sentencing order and find it necessary to remand for the circuit court to correct the error. At the sentencing hearing, the court pronounced Brown’s sentence on Count I as “ten years in the Mississippi Department of Corrections. That ten years will be suspended. You’ll be placed on ten years of post-release supervision [ (PRS) ].” The subsequent written order tracked the PRS sentence, but it failed to mention the (suspended) sentence of ten years’ imprisonment—stating merely that Brown was to “serve a term of zero (0) years incarceration in [MDOC custody].” (Emphasis added). We find it apparent this omission of the actual term of the suspended sentence (ten years) was inadvertent and a clerical error. We remand for the circuit court to correct the sentencing order for Count I to include the term of imprisonment of ten years in MDOC custody, with all ten years suspended for Brown to serve the enumerated term of PRS.

CONCLUSION

¶ 28. Upon review of the record, we find no merit to any of the issues raised on appeal. Therefore, we affirm the findings of the circuit court.

¶ 29. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, FONDLING BY A PERSON IN A POSITION OF TRUST OR AUTHORITY, AND SENTENCE OF TEN YEARS, WITH ALL TEN YEARS SUSPENDED, AND TEN YEARS OF POSTRELEASE SUPERVISION, WITH FIVE OF THOSE YEARS REPORTING AND FIVE NON-REPORTING, AND TO PAY $1,000 IN RESTITUTION TO THE MISSISSIPPI CHILDREN’S TRUST FUND; AND COUNT II, FONDLING, AND SENTENCE OF FIVE YEARS; WITH THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED, AND THIS CASE IS REMANDED FOR CORRECTION OF THE SENTENCING ORDER. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WTHOUT SEPARATE WRITTEN OPINION.

      . Because V.B. was a minor at the time that she became a victim of sexual abuse, initials ' will be used to protect her anonymity.

      , Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . "Where it clearly appears that the judgment as entered is not the sentence which the law ought to have pronounced upon the facts as established by the record, the court acts upon the presumption that the error is a clerical misprision rather than a judicial blunder[.]” Harvey v. State, 919 So.2d 282, 285 (¶ 9) (Miss. Ct. App. 2005) (citation omitted) (citing Brown v. Sutton, 158 Miss. 78, 121 So. 835, 837 (1929)). "The Mississippi Supreme Court has long held that courts ‘have inherent power to correct clerical errors at any time, and to make the judgment entry correspond with the judgment rendered. This power exists in criminal prosecutions as well as in civil cases.’ " Id. at 287-88 (¶ 14) (quoting Kitchens v. State, 253 Miss. 734, 737, 179 So.2d 13, 14 (1965)); see also Brown v. State, 166 So.3d 565, 567 (¶¶ 7-9) (Miss. Ct. App. 2015) (affirming and remanding for correction of the trial court’s sentencing order where it improperly said the sentence was to be served in MDOC custody rather than the county sheriff’s custody); accord Harvey, 919 So.2d at 287-88 (¶¶ 13-14) (finding no error when, following revocation of probation, the circuit court corrected its written sentencing order to conform to the intended sentence previously imposed from the bench at the sentencing hearing).


author: FAIR, J.,

text:
    STATE of Mississippi, Appellant v. Joe Frank HARDIN a/k/a Joe Hardin, Appellee
    NO. 2016-CA-00878-COA
    Court of Appeals of Mississippi.
    08/15/2017

      ATTORNEYS FOR APPELLANT: OFFICE OF THE ATTORNEY GENERAL BY: DARRELL CLAYTON BAUGHN ANTHONY LOUIS SCHMIDT JR.
    ATTORNEY FOR APPELLEE: JOE FRANK HARDIN (PRO SE)
    BEFORE IRVING, P.J., FAIR AND GREENLEE, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. In 1995, Joe Hardin was convicted of two counts of murder and sentenced to two consecutive life sentences: In 2015, Hardin was denied parole, and the Mississippi Parole Board “set off’ his case for another hearing in three years. Hardin then filed the instant motion for post-conviction relief, claiming that, under the 2014 amendments to Mississippi Code Annotated, sections 47-7-3.1 and 47-7-18(6), he is entitled to an annual hearing and a case plan to identify corrective actions he needs to take to prepare him for parole. The circuit court agreed with Hardin, and the State has appealed.

¶ 2.' On appeal, the State contends that the circuit court should have dismissed Hardin’s complaint, since the Mississippi Parole Board was not named as a party or served with process. We agree. As this Court has explained:

[T]he lower court should have dismissed the case because of [the petitioner’s] failure to include the Parole Board as a party to the complaint, which is in the nature of a civil suit and not a petition for post-conviction relief. In McClurg [v. State, 870 So.2d 681, 682 (¶ 6) (Miss. Ct. App. 2004)], this Court found that .the complaint of an inmate who filed an action regarding the calculation of his sentenced time to serve and parole eligibility was a civil action and not a petition for post-conviction relief, and therefore should have been “dismissed for failure to properly name and serve the actual parties in interest, namely the Parole Board and Department of Corrections.” As in McClurg, the petition in the present case was filed only against the State of Mississippi, and not against the Department of Corrections or the Parole Board. ' Therefore, the' circuit court should have dismissed the petition for ... failure to file against the proper parties.

Mack v. State, 943 So.2d 73, 75-76 (¶ 7) (Miss. Ct. App. 2006); see also State v. Willard, 217 So.3d 779, 780 (¶ 4) (Miss. Ct. App. 2017).

¶3. Moreover, when the circuit court decided this case on the merits, the Mississippi Supreme Court had not yet ruled on the issue. Since then, it has held that the 2014 amendments to the parole statute are not retroactive and thus do not apply to prisoners admitted prior to the amendment’s effective date. Fisher v. Drankus, 204 So.3d 1232, 1235-36 (¶¶ 7-14) (Miss. 2016). And since the 2014 amendments are not retroactive, they do not create a liberty interest that permits circuit courts to exercise jurisdiction over what is effectively an appeal from the denial of parole. Drankus v. Miss. Parole Bd., No. 2015-CP-01049-SCT, 224 So.3d 83, 85, 2017 WL 449621, at *1 (Miss. Feb. 2, 2017). See also Cotton v. Miss. Parole Bd., 863 So.2d 917, 921 (¶ 11) (Miss. 2003) (trial courts have no jurisdiction to grant or deny parole). Hardin was therefore entitled to neither a modified set off date nor a case plan, as he was admitted to the custody of the Mississippi Department of Corrections long before the effective date of the 2014 amendments to the parole statute. See Drankus v. State, 215 So.3d 1000, 1001 (¶¶ 7-8) (Miss. Ct. App. 2017).

¶ 4. We reverse the circuit court’s judgment and render a dismissal for want of jurisdiction.

¶ 5. REVERSED AND RENDERED.

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

      , "A 'set off1 is the period of time an inmate who has been denied parole must wait before his parole is reconsidered." Way v. Miller, 919 So.2d 1036, 1038 n.l (Miss. Ct. App. 2005) (citation omitted).

      . The circuit court rendered its decision prior to the Mississippi Supreme Court's decision in Fisher v. Drankus, 204 So.3d 1232 (Miss. 2016), where it was held that the amended statute did not apply to prisoners convicted and sentenced prior to July 1, 2014.


author: FAIR, j;, WILSON, J.,

text:
    IN RE the ESTATE OF Vernon Marie Horn WYLIE: Sheila Russell, Appellant v. Donnie Euvon Horn Byrd, Appellee
    NO. 2015-CA-01852-COA
    Court of Appeals of Mississippi.
    08/15/2017

      ATTORNEY FOR APPELLANT: THOMAS MELVIN MCELROY
    ATTORNEY FOR APPELLEE: DUNCAN L. LOTT
   FAIR, j;,

FOR THE COURT:

¶ 1. This appeal concerns a series of disputes between sisters Sheila Russell and Donnie Byrd over real property left to them by their mother, Vernon Marie Horn Wylie. It turns on Byrd’s “motion to construe” Wylie’s will, essentially decided by default after Russell failed to appear at the hearinghn the motion.

¶ 2. Mississippi Rule of Civil Procedure 81(d) provides that will construction must be raised by petition or complaint, and that Russell must be served with a Rule 81 summons for a hearing. Since she was not, and since she did not waive service of process by appearing and defending the issue on the merits, the chancery court’s decision construing the will is-void for want of jurisdiction, and the partition of the property must be vacated. We find no error on the remaining issue, a boundary dispute between Russell and the estate, as the chancellor’s decision was supported by substantial evidence.

STANDARD OF REVIEW

¶3. A chancellor’s factual findings will not be reversed unless they are manifestly -wrong or clearly erroneous. Paw Paw Island Land Co. v. Issaquena & Warren Ctys. Land Co., 51 So.3d 916, 923 (¶ 26) (Miss. 2010). However, a chancellor’s legal conclusions are reviewed de novo. Id.

DISCUSSION

1. Will Construction

¶ 4. Wylie died on March 25, 2006. She left a will, executed in 1972, and a codicil from 1979. The codicil devised to Russell “the South part of the bottom ... and this is the portion where she has her house situated.” To Byrd, it gave, “the North part of the bottom.” The remainder was devised to Byrd and Russell, in equal shares, to share and share alike. The codicil named Byrd and Russell coexecutors, and they filed a petition for probate in March 2008.

¶ 6. In May 2008, Byrd.filed a “motion to construe will,” which contended that the specific devises of real property (i.e., the north -and south “parts” of the “bottom”) were “confusing and inapplicable due, to subsequent transfers.” Attached to the motion was a certificate of service stating that the motion had been mailed to Russell’s attorney. On December 5, 2008, the chancery court entered, an order setting .the matter of “Estate” for hearing on February 23, “2008.”

¶6. On December 29, 2008, Russell’s attorney filed a motion to withdraw based on a “complete breakdown of the attorney/client relationship.” The chancellor entered an order on February 23, 2009, allowing the attorney to withdraw. The same day, the chancery court held a hearing on the motion to construe the will. Russell did not appear. On March 12, 2009, the court entered an order construing the will, finding that the devises in question were ambiguous and that insufficient evidence had been offered at the hearing to determine their meaning. The chancellor found the devises to be void for uncertainty and that the share-and-share-alike residual clause controlled the inheritance of the real property.

¶ 7. On March 24, Russell’s newly hired attorney filed a motion seeking additional time to file a motion for rehearing. In response to the motion, the chancery court held a hearing on what the chancellor called Russell’s Rule 60 motion. See M.R.C.P. 60. Russell admitted she had been aware of a hearing scheduled for February 23, but she denied knowing a motion to construe the will had been filed or that it would be the hearing’s subject. For reasons that are unclear, Russell believed the February 23 heáring had been canceled after her attorney withdrew. She testified that she had difficulty communicating with her former attorney, who would not retuirn her calls. Apparently, Russell believed her attorney had scheduled the February 23 hearing and had then canceled or postponed it, or that it would be canceled or postponed because the attorney withdrew. Russell “knew that [her attorney] had got a court date,” “[b]ut when [the attorney] dropped the case, [Russell] thought that was all of it.”

¶ 8. After Russell presented her evidence at the hearing, Byrd’s attorney asked the court for the opportunity to submit briefing. The chancellor agreed and gave both parties ten days to submit briefs by letter. The chancellor’s subsequent order denying Russell relief noted that briefs had been submitted, but the briefs are not found in the record. The chancellor’s order denying relief stated only that Russell had not shown she was entitled to relief under Rule 60(b).

¶ 9. On appeal, Russell argues she received insufficient notice of the February 23 hearing and that the chancellor’s decision construing the will is void because she did not receive process. She points to Mississippi Rule of Civil Procedure 81(d), which states in relevant part (emphasis added):

(d) Procedure in Certain Actions and Matters. The special rules of procedure set forth in this paragraph shall apply to the actions and matters enumerated in subparagraphs (1) and (2) hereof and shall control to the extent they may be in conflict with any other provision of these rules.
(1) The following actions and matters shall be triable 30 days after completion of service of process in any manner other than by publication or 30 days after the first publication where process is by publication, to-wit: adoption; correction of birth certificate; alteration of name; termination of parental rights; paternity; legitimation; uniform reciprocal enforcement of support; determination of heirship; partition; probate of will in solemn form; caveat against probate of will; will contest; will construction-, child custody actions; child support actions; and establishment of grandparents’ visitation.

¶ 10. Byrd does not seriously contest the argument that Russell should have received a Rule 81 summons. Instead, Byrd contends that the issue has been waived. Her first argument is easily disposed of—-Byrd claims that Russell failed to cite authority for the proposition that Rule 81 applies to will construction actions. But Russell cited the rule itself, which states unambiguously that a Rule 81 summons is required for “will construction” actions and matters. See M.R.C.P. 81(d)(1). The rule is clear that the issue should have been raised by- “petition or complaint” rather than by motion and that Russell, rather than her attorney, should have been served with notice of the petition and the date of the hearing. M.R.C.P. 81(d)(5). “[I]n Rule 81 matters, a Rule 81 summons must be issued; otherwise, service is defective.” Clark v. Clark, 43 So.3d 496, 499 (¶ 12) (Miss. Ct. App. 2010). The fact that Russell knew a hearing had been scheduled is irrelevant; “[ajctual notice does not cure defective process.” Id.

¶ 11. Byrd’s argument that Russell waived the issue by failing to raise it in the trial court is more difficult. Appeals courts generally will not consider issues raised for the first time on appeal. See, e.g., Taylor v. Taylor, 201 So.3d 420, 421-22 (¶ 6) (Miss. 2016). But on the specific issue of a Rule 81 summons, the authorities are less clear. The Mississippi Supreme Court has repeatedly stated that “complete absence of service of process offends due process and cannot be waived.” Stratton v. McKey, 204 So.3d 1245, 1248 (¶ 10) (Miss. 2016) (quoting Reasor v. Jordan, 110 So.3d 307, 317 (¶ 41) (Miss. 2013) (Pierce, J., dissenting in part from a plurality opinion, with an equally divided court)). Nonetheless, our courts have repeatedly found the issue to have been waived when the defendant appears on the day of the hearing and defends the matter on the merits without objection. See, e.g., Reasor, 110 So.3d at 312 (¶ 17); Dennis v. Dennis, 824 So.2d 604, 611 (¶ 18) (Miss. 2002); Chasez v. Chasez, 935 So.2d 1058, 1062 (¶ 12) (Miss. Ct. App. 2005):

¶ 12. But in a case where the defendant did not áppear at the hearing, this Court held that the issue could not be waived by failure to raise the argument in the trial court. Serton v. Serton, 819 So.2d 15, 20 (¶ 22) (Miss. Ct. App. 2002). In fact, this Court found the error reversible even though it was not raised until the defendant’s reply brief on appeal. Id. at 21 (¶¶ 24-25).

¶ 13. Still, Byrd.contends that the issue was waived by Russell’s pursuit of the Rule 60(b) motion, As the dissent notes, there is general language in Reasor, Dennis, and Chasez suggesting that the Rule 81 summons can be waived by appearing and failing to contest service of process. An example would be the supreme court’s particular phrasing 'in Reasor: both the dissent and the plurality agreed that “the right to contest the court’s jurisdiction based upon a claimed problem with service may be lost after making an appearance in the case if the issues related to jurisdiction are not raised at the first opportunity.” Reasor, 110 So.3d at 311, 317 (¶¶ 15, 41).

¶ 14. There is some confusion here about what constitutes an appearance. Unsurprisingly, it stems from Rule 81, which has been observed to create a “case within a case” in certain matters, most frequently contempt. Rule 81 requires the personal service of a complaint or petition, but this is often done under the original cause number of the underlying action, and the judgment on the Rule 81 issue is generally not regarded as appealable until there is a final judgment on all of the. issues in the underlying case. So, while we acknowledge that service under Rule 81 can be waived by an appearance at the hearing and the presentation of a defense on the merits, the relevant question should be whether the defendant “appeared” and defended the specific Rule 81 matter rather than some other issue in the underlying cause. Here, Russell’s only appearance on the will construction issue was her filing and pursuit of what the chancellor interpreted as a Rule 60(b) motion for relief from the judgment, wheré Russell argued that she was not accorded proper notice of the hearing. She did not appear at the hearing on the merits of the Rule 81 matter like the defendants in Reasor, Dennis, or Chasez.

¶ 15. S & M Trucking LLC v. Rogers Oil Co. of Columbia, 195 So.3d 217, 223 (¶ 24) (Miss. Ct. App. 2016), instructive, but the dissent’s reliance on it is misplaced. There, we elaborated on the general waiver rule mentioned in Reasor and the like, to the effect that waiver results unless “the defendant’s first defensive move” “put[s] the plaintiff on notice that the defendant will pursue dismissal based on insufficiency of process,” See id. But we went on to explain that the “first defensive move” means defending the case on the merits. Id. at (¶¶ 24-25); We found no waiver of service of process in S & M Trucking because there had been no defense on the merits, and we concluded that the judgment was void. See id. at 223-24 (¶ 25). S & M Trucking cited Schustz v. Buccaneer, Inc., 850 So.2d 209, 213 (¶ 15) (Miss. Ct. App. 2003), where this Court similarly held: “[A] defendant appearing and filing an answer or otherwise proceeding to defend' the case on< the merits in some way—such as participating in hearings or discovery—may not subsequently attempt to assert jurisdictional questions based on ’ claims of defects in service -of process.” (Emphasis added).

¶ 16. Russell’s Rule 60(b) motion was not a defense on the merits and thus did not serve to waive her insufficiency of process defense. As this Court explained in Sanford v. Sanford, 749 So.2d 353, 357 (¶ 16) (Miss. Ct. App. 1999), a Rule 60 motion does not- concern the merits of the underlying claim, only whether the movant is entitled to relief from the judgment for one of the limited grounds permitted by the rule. As there was no defense on the merits here, there was no waiver of the defense of insufficiency of process.

¶ 17. That still leaves the question of whether this Court should address the issue on appeal. As we said, the record in today’s case does not affirmatively show that Russell argued the specific issue of a Rule 81 summons to the trial court. There was no written Rule 60 motion, and at the chancellor’s direction, Russell’s legal arguments were presented by letter- brief rather than at the hearing on her: Rule 60 motion. Those briefs .are not found in the record. “Our law is clear that an appellant must present to us a record sufficient to show the occurrence of the error he asserts and also that the matter was properly presented to the trial court and timely preserved.” Young v. State, 891 So.2d 813, 819 (¶ 14) (Miss. 2005). The practical effect of Russell’s failure to make those briefs part of the record is that this' Court must assume the specific Rule 81 argument was, in fact, not made. And this Court will generally not address issues for the first time on appeal. See, e.g., Fowler v. White, 85 So.3d 287, 293 (¶ 21) (Miss. 2012). Nonetheless, in Serton, this Court held that the specific issue of service of a Rule 81 summons, because it is jurisdictional, can-be raised for the first time on appeal. Serton, 819 So.2d at 20 (¶ 22). Serton is directly on point, and today’s case gives us no reason to disregard that precedent. The issue of notice was immediately presented to the chancery court, the record affirmatively shows that the error occurred, and our determination of error does not depend on factual findings that would have had to be made by the trial court. Consequently, we conclude that relief can be granted on appeal notwithstanding Russell’s failure to make the specific argument in the trial court.

¶ 18. Russell was not served with a Rule 81 summons on the will construction issue, and she did not waive service by appearing at the will construction hearing or otherwise defending the issue on the merits. Thus, the judgment on the will construction is void, and we vacate that.judgment and the derivative decisions dividing the real property pursuant to. the construed will.

2. Properly Line Dispute

¶ 19. Notwithstanding our decision on the first issue, one other dispute remains on appeal: - the chancery court’s resolution of a boundary dispute between Russell- and the estate. At issue is the construction of a deed from Wylie, decades before her death, to Russell. Specifically, the question is the location of the boundary of Russell’s property that was described by calls in the deed as running “east 526 feet more or less to a ditch; thence run[ning] in a northernly direction with the center of said ditch approximately 990 feet, more or less, to the north boundary of [a specified] quarter section ....”

¶ 20. It was undisputed that nothing resembling a ditch was found 526 feet from the previous marker as described in the deed. Continuing -on that course, there were two candidates for the monument: a man-made ditch more than 900 feet along, and. a small natural, waterway, Martin Creek Branch, at more than 1,200 feet. Around the time she deeded the property to Russell, Wylie also deeded her property on the other side of Martin Creek Branch to Russell’s cousin; that deed specifically named Martin Creek Branch as the boundary, though it also referred to it as a “ditch.” The disputed property is a strip, approximately five acres, between the land Wylie undisputedly deeded to Russell and the land she deeded to Russell’s cousin around the same time.

¶ 21. A hearing was held on the issue where numerous witnesses testified. The chancellor, in a lengthy written judgment, concluded that the manmade ditch was the boundary. She explained:

The precise issue is whether- the ditch referred to in the subject- deed is the ditch constructed by the- parties’ father many years ago, or the Martin Creek Branch.- Our appellate court- has explained:
There are a variety of accepted methods of describing real property. A valid means is by reference to monuments. Natural monuments-. include rivers, lakes, streams, or trees; artificial monuments include such landmarks as fences, walls, houses, streets, or . ditches. Descriptions ; employing monuments may in part also employ a “metes and bounds” description. That method uses a- measurement of length (metes) along certain boundary lines (bounds). Monuments, natural or artificial, can disappear, or be altered, so there is an inherent danger in long-time use of monuments. The risk does not invalidate the use. What is needed in any description is accuracy and clarity. Descriptions using monuments are valid even when there is no surveyor’s angle and distance description, so-called “courses and distances” descriptions.
[Moran v. Sims, 873 So.2d 1067, 1070 (¶ 15) (Miss. Ct. App. 2004).]
The common usage of ditch is for “a long narrow hole that is dug along a road, field, etc., and used to hold or move water” or “a long narrow excavation dug in the earth (as for drainage).” Merriam-Webster Dictionary. Notably, this refers to a man-made water course rather than a natural one. It is undisputed that a ditch was constructed by the parties’ father, and is readily identifiable. It is also clear that a separate parcel of property was conveyed by the same grantor herein, the decedent, which referred expressly to Martin Creek Branch. It is reasonable to assume that if the grantor had intended Martin Creek Branch as the boundary, then that monument would have been referred to rather than using a generic term for an unnamed man-made drainage trench.
Two surveyors testified. Moore explained that the deed calls for a certain number of feet, and the ditch excavated by the parties’ father is the first monument that is reached. He testified it is closer to the footage called for by the description, and results in a parcel closer in size to the amount of acreage specified in the deed. This ditch is also the first water course reached when following the description in the order and manner set forth therein.
Accordingly, the Court finds the ditch constructed by the parties’ father is the ditch referred to as the east boundary of the subject property as set forth in the survey completed by Moore, which was received as Exhibits 14 and 15. The Russells’ request for relief on this ground should be and hereby is DENIED.

On appeal, Russell essentially contends that the chancery court lacked substantial evidence to reach the conclusion it did. She also argues that the court erred in excluding certain testimony and erroneously failed to consider other evidence for relevant purposes or to weigh it the way Russell contends it should be weighed.

¶ 22. We address Russell’s contentions relating to evidentiary rulings first. Russell offered the testimony of Doyle Taylor regarding statements made by the decedent/grantor, Wylie. Taylor would have testified that Wylie told him the boundary was the Martin Creek Branch. Russell contends that this testimony, which was obviously hearsay, was evidence of Wylie’s “intent,” “plan,” and “design,” and thus admissible under the hearsay exception for “state of mind” evidence, Mississippi Rule of Evidence 803(3). It provides:

(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declar-ant’s will.

¶ 23. Russell asserts that Taylor would have testified that Wylie told him this contemporaneously with the transfer, or some time prior to it; but his proffered testimony does not support this claim. Taylor’s testimony is actually either ambiguous as to when the statements were made, or he describes Wylie speaking about her intent in the past tense. Thus, the chancellor acted within her discretion in refusing to admit the proffered testimony as a “statement of memory or belief’ regarding the boundary, not admissible under the hearsay exception.

¶ 24. Russell also alleges that the chancellor failed to properly weigh her testimony regarding statements her mother made to her around the time of the transfer. However, when this testimony was offered at trial, Byrd objected, and, in response, Russell’s attorney stated that the testimony was offered only for the purpose of showing Russell’s own understanding of the boundary line. Irrespective of whether the testimony may have been admissible under Rule 803(3) as evidence of Wylie’s intent, the point was conceded that it would not be offered for that purpose. We cannot say the chancellor committed any error in limiting her consideration of the testimony to the purpose for which it was offered and admitted.

¶ 25. Russell also argues that this testimony was admissible under Mississippi Rule of Evidence 803(20), the hearsay exception for reputation evidence relating to boundaries:

(20) Reputation Concerning Boundaries or General History. A reputation in a community—arising before the controversy—concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.

But a review of Taylor’s testimony indicates that he only testified to his own personal belief and that it was based on what Wylie had told him, apparently in a private conversation. This was not a statement of reputation at all, much less of a general reputation in the community as would be required to admit the testimony under this rule. Coastal States Ltd. v. City of Gulfport, 480 So.2d 1113, 1115 (Miss. 1985); see also 2 Wigmore on Evidence § 1584 (1904). There was no abuse of discretion in the exclusion of this testimony.

¶ 26. Russell’s remaining arguments, although presented as many and varied, are essentially a challenge to the chancellor’s ultimate factual findings. An appellate court “will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Hamilton v. Young, 213 So.3d 69, 74 (¶ 11) (Miss. 2017). “The chancellor is charged with weighing the evidence, and [an appellate court] will not reverse her determination absent manifest error or an abuse of discretion.” Heiter v. Heiter ex rel. Sheffield, 192 So.3d 992, 995 (¶ 4) (Miss. 2016).

¶ 27. Russell contends that the chancellor applied an erroneous legal standard in weighing the courses and distances specified in the deed in favor of her ultimate conclusion; the chancellor reasoned that the artificial ditch was more likely to be the one specified in the deed because it was significantly closer to the distance the deed specified. The chancellor also reasoned that the artificial ditch was more likely to be the monument specified because using it would lead to an actual acreage (30 acres) that was closer to that specified in the deed (25 acres) than using Martin Creek Branch as the ditch (35 acres). Russell points to authorities like O’Herrin v. Brooks, 67 Miss. 266, 274, 6 So. 844, 845 (1889), which provide that calls for monuments prevail over courses and distances, and she implicitly relies on authorities like Segrest v. Starnes, 143 So.3d 628, 632 (¶ 15) (Miss. Ct. App. 2014), to the effect that deeds are generally construed such that specified boundaries control over statements of acreage and fractions. But the chancellor did not find that the acreage or the course and distance controlled over the monument; she used those other descriptions to help determine which watercourse was the monument specified in the deed. This was not an abuse of discretion as it is axiomatic that deeds, like contracts, should be read as a whole. See, e.g., Deason v. Cox, 527 So.2d 624, 627 (Miss. 1988). Russell also contends that the chancellor erred in relying on the values given in the deed, as they -could have been misprints rather than mismeas-urements. While we agree -that this is a possibility, when the evidence is subject to more than one reasonable interpretation, it is for the chancellor as the trier of fact to determine which to follow. Trim v. Trim, 33 So.3d 471, 479 (¶ 20) (Miss. 2010). We see no abuse of discretion in -this respect.

¶ 28. Turning to the ultimate decision on the boundary line, we admit that Russell presented a strong case for her interpretation of the deed. In addition to showing that Wylie had referred to' the Martin Creek Branch as a “ditch,” Russell offered testimony from a competing surveyor who concluded that she owned the property at issue, and she also presented Farm Service Agency records indicating that Wylie had apparently implicitly acknowledged Russell’s ownership of the disputed land in FSA filings over more than ten years, Nonetheless, it is apparent that substantial evidence supported the chancellor’s interpretation. We are therefore without authority to disturb her decision,'even if it were not the one this Court would have made from the same evidence. Owen v. Owen, 798 So.2d 394, 397-98 (¶ 10) (Miss. 2001).

¶ 29. Finally, we address Russell’s contention, in the alternative, that the case should be remanded for further consideration of her claim to have adversely possessed the property. She. alleges that the chancellor: “failed to consider” certain evidence she offered on this point, apparently because the chancellor did not mention it in her written discussion of the issue. But, except in certain limited circumstances, “where the chancellpr has made no specific findings, we will proceed on the assumption that [s]he resolved all such fact issues in favor of the appellee.” Nichols v. Funderburk, 883 So.2d 554, 556 (¶7) (Miss. 2004) (citation omitted); Bivens v. Mobley, 724 So.2d 458, 461 (¶9) (Miss. Ct. App. 1998). It is apparent from the record that the chancellor’s decision on this question was supported by substantial evidence; Russell admitted that she did not occupy the property and that she “allowed” Wylie to do what she wanted witl} it, including to lease it and collect the. payments. .

¶ 30. We find no error in the chancellor’s resolution of the property line dispute, and so we affirm the judgment as to that issue.

¶ 31. AFFIRMED IN PART; VACATED IN PART, AND REMANDED.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, GREENLEE AND WESTBROOKS, JJ„ CONCUR. WILSON, J„ CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J., AND CARLTON, J.

WILSON, J.,

CONCURRING IN PART AND DISSENTING IN PART:

¶ 32. I would hold that Russell waived any objection to Byrd’s failure to serve a Rule 81 summons when Russell failed to raise the issue at her first opportunity in the trial court. Accordingly, I respectfully concur in part and dissent in part.

¶33. I agree with the majority that a Rule 81 summons was required and that Russell did not waive her objection simply, because she was generally aware of the hearing date and failed to appear. However, I would hold that she waived her objection when she thereafter appeared and failed to make any of the arguments that she now raises on appeal.

¶34. After the chancellor entered an order construing the will, Russell filed a “Motion for Enlargement of Time to File Motion for Reconsideration,” which the parties and the judge agreed would be construed as a motion for reconsideration. A hearing was then held at which Russell testified and was afforded an opportunity to argue any reason why the order construing the will should be set aside or reconsidered. At the -hearing, Russell’s attorney stated that there was “a question as to whether or not [Russell] was properly noticed about the' hearing” on the motion to- construe the will. Russell testified that she was never advised in person, by phone, or by letter that there was to be a hearing on a motion to construe the will; she knew that a court date had been set for some purpose, but she unilaterally assumed that it was cancelled when her former attorney moved to withdraw from the case. Russell argued that the order construing the will should be set aside because she failed to appear at the hearing, as a result of her former attorney’s withdrawal; she also noted that the order setting the prior hearing gave an incorrect date for the hearing (2/23/2008 rather than 2/23/2009). However, Russell never mentioned Rule 81, a summons, or service of process, and she never argued that the order construing the will was void for lack of jurisdiction or violated due process. The entire trial court record contains no mention of any of these issues. These are all arguments advanced for the first time on appeal.

¶ 35. While I agree that Russell did not waive her objection by failing to appear at the hearing on the motion to construe the will, I would hold that she waived it when she subsequently appeared and failed to raise the issue at a hearing held for the specific purpose of providing her with an opportunity to present any reason why the order construing the will should be set aside. In cases involving service of process under Rule 4, it is clear that “the right to contest the court’s jurisdiction based on some perceived problem with service may yet be lost after making an appearance in the case if the issues related to jurisdiction are not raised at the first opportunity.” S & M Trucking LLC v. Rogers Oil Co. of Columbia, 195 So.3d 217, 223 (¶ 24) (Miss. Ct. App. 2016) (quoting Schustz v. Buccaneer Inc., 850 So.2d 209, 213 (¶ 15) (Miss. Ct. App. 2003)). We have held that the same principle applies in Rule 81 proceedings. Chasez v. Chasez, 935 So.2d 1058, 1062 (¶ 12) (Miss. Ct. App. 2005) (citing Schustz, 850 So.2d at 213 (¶ 15)). “[T]he defendant’s ‘first defensive move’ must put the plaintiff ‘on notice’ that the defendant will ‘pursue dismissal based on insufficiency of service of process.’ ” S & M Trucking, 195 So.3d at 223 (¶ 24) (quoting Burleson v. Lathem, 968 So.2d 930, 935 (¶ 13) (Miss. 2007)) (emphasis omitted),

¶ 36. Here, Russell appeared in the trial court but failed to raise the issues of insufficient service of process under Rule 81, personal jurisdiction, or due process. She failed to do so not just at her “first opportunity” but at any point during the next six years of litigation in the chancery court. The first time she raised these issues was in her opening brief on appeal. I would hold that she waived any objection based on insufficient service of process by failing to raise issues at the first opportunity.

¶ 37. The majority points out that in Serton v. Serton, 819 So.2d 15, 20 (¶ 22) (Miss. Ct. App. 2002), which involved a contempt petition that resulted in a lengthy incarceration, this Court held that an objection based on insufficient service of process under Rule 81 was not waived even though it was first raised in a reply brief on appeal. The Court stated that “since the acquisition of process over a respondent is a prerequisite to the court’s authority to act in Rule 81(d)(2) matters, and since the question of jurisdiction may be raised for the first time on appeal, we consider the issue.” Id. If intended as a general statement of law, this quote is inconsistent with the principle that objections to insufficient service of process may be waived. “Subject matter jurisdiction may be raised at any time, even for the first time on appeal.” Graves v. Dudley Maples L.P., 950 So.2d 1017, 1022 (¶ 21) (Miss. 2007) (emphasis added). However, the issue raised in this case does not implicate the chancery court’s subject matter jurisdiction. Indeed, in this case, the chancery court possessed not only subject matter jurisdiction to construe the will, see Miss. Const, art. 6, § 159(c), but also personal jurisdiction over Russell because she and Byrd jointly filed the petition to probate the will and for letters testamentary and thereby submitted to the chancery court’s jurisdiction. See Powell v. Powell, 644 So.2d 269, 274 n.4 (Miss. 1994) (holding that the chancery court continued to have personal jurisdiction over the defendant based on the underlying divorce proceeding, although petitions to modify custody and other “Rule 81 matters, because of their nature, require special notice”). The above quote from Serton is inaccurate to the extent that it implies that Rule 81 issues may never be waived.

¶38. It seems clear that in March of 2009, the requirement of a- Rule 81 summons never occurred to Byrd, Russell, their lawyers, or the judge. Byrd filed a “Motion to Construe Will” in an ongoing probate matter that she and Russell jointly initiated. When the motion was filed, Russell was already a party to the case and was represented by counsel. In addition, at the hearing on Russell’s motion to reconsider, counsel for both sides repeatedly referred to the pleading as a “motion,” not as a petition or anything else. See Pearson, 106 So.3d at 848-49 (¶¶ 15-18) (explaining that matters listed in Rule 81 are not raised by “motion” but by a “properly served complaint or petition”). Once Russell became aware that an order construing the will had been entered, she was required to raise any objection based on insufficient service of process at the first opportunity. I would hold that the arguments that she made in the trial court— which did not reference Rule 81, a summons, service of process, jurisdiction, or due process—failed to preserve the issue.

¶ 39. In summary, I would hold that Russell waived her Rule 81 objection as it relates to the motion to construe the will. Accordingly, I respectfully concur in part and dissent in part.

GRIFFIS, P.J., AND CARLTON, J., JOIN THIS OPINION.

      . The dissent in that equally divided case would have found that the defendant could not waive service of process under Rule 81, even by appearing at the hearing. Reasor, 110 So.3d at 317 (¶ 41).

      . More precisely, the record failed to show that the defendant appeared at the hearing. Serton, 819 So.2d at 17 (¶ 6).

        .See, e.g., Shavers v. Shavers, 982 So.2d 397, 402 (¶ 25) (Miss. 2008) ("Although contempt proceedings in divorce cases often are filed in the same cause number and proceed with the underlying divorce case, they are held to be separate actions, requiring new and special summons under Mississippi Rules of Civil Procedure 81.” (citation omitted)).

      . For our analysis of this issue, we need not decide whether a Rule 60 motion was proper; the question is whether Russell’s pursuit of the Rule 60 motion amounted to an appearance and defense on the merits- and thus waived service of process.

      . Wylie’s farm was registered as consisting of -two tracts, one owned by her and one owned by Russell’s husband. All or nearly all of the farming on the Russells’ tract reported to the FSA appears to have occurred on the disputed property.

      . I concur in part 2 of the majority opinion regarding the property line dispute.

      . See M.R.C.P. 81(d)(1), (5); Pearson v. Browning, 106 So.3d 845, 850 (¶ 27) (Miss. Ct. App. 2012) ("Actual notice does not cure defective process.’-’ (quoting Clark v. Clark, 43 So.3d 496, 499 (¶ 12) (Miss. Ct. App. 2010))).

      . The appellant in Serton remained incarcerated based on the chancery court’s finding of contempt and was released as a result of this Court’s decision on appeal. See Serton v. Sollie, 829 So.2d 730 (Miss. Ct. App. 2002). The unique facts of that case perhaps serve to explain this Court’s finding that he had not waived his objection under Rule 81.