author: BEAM, JUSTICE, FOR THE COURT:

text:
    D. W. CALDWELL, INC. v. W.G. YATES & SONS CONSTRUCTION COMPANY
    NO. 2017-CA-00116-SCT
    Supreme Court of Mississippi.
    May 10, 2018
    ATTORNEYS FOR APPELLANT: CHRISTOPHER SOLOP, TRAVIS JONATHAN CONNER, JERALD R. HANKS
    ATTORNEYS FOR APPELLEE: DORSEY R. CARSON, JR., DAVID SANDERS HUMPHREYS, TERRY L. JORDAN
    BEFORE RANDOLPH, P.J., KING AND BEAM, JJ.
   BEAM, JUSTICE, FOR THE COURT:

¶ 1. This Court adheres to the widely recognized standards providing for a trial court's amendment of an arbitration award under limited conditions. Importantly, those standards provide that a court may modify an arbitrator's award to correct an evident miscalculation of figures before entering its judgment. See Miss. Code Ann. § 11-15-135 (Rev. 2004). However, this Court has yet to determine what qualifies as an evident miscalculation and to what extent a judge may inquire to determine whether such a miscalculation exists.

¶ 2. Through the analysis below, we find first that the miscalculations alleged in this matter are not evident from the award itself, nor are they apparent from the agreed-upon record. Additionally, we find that the judge erred when he allowed the parties to present witness testimony regarding the extent of any alleged miscalculations, rather than relying on the award and the arbitration record as the relevant law suggests. Finding error, we reverse the circuit court's decision and remand this case to the circuit court with directions to confirm the December 8, 2015, arbitration award. Furthermore, because the subcontract between the parties provides that each contractor will be responsible for his own fees and costs, the Court declines to assess costs to one party over the other, and instead, enforces their bargained-for agreement.

FACTS AND PROCEDURAL HISTORY

¶ 3. Yates Construction, LLC, and D.W. Caldwell, Inc., entered into a construction subcontract for the roof installation on a residential dormitory at Auburn University in Auburn, Alabama. Caldwell-the roofing subcontractor-began work on the roof in October 2012. Early on, Caldwell employees identified structural issues with the building, preventing the company from moving forward with the roof installation. Caldwell notified Yates of the issues, and after some discussion about the repairs needed, Caldwell agreed to repair the building prior to installing the roof. Rather than amending the existing subcontract or creating a new contract for the repair expenses, Yates urged Caldwell to bill against "unperformed work" for those costs related to the extra work completed. Although the arrangement was unconventional, Caldwell orally agreed to the billing scheme, requiring that it be paid weekly, on a "cost plus overhead and profit basis."

¶ 4. When Caldwell completed both the repairs and the roof installation, it had yet to receive total payment for the structural repairs. The companies disputed the scope and expense of these repairs and quickly negotiated their way to an impasse. Thereafter, Caldwell filed a claim against Yates for causing delay and increased costs by failing to pay for work performed, which was in breach of the agreements between the parties.

¶ 5. The parties proceeded to arbitration. Although the arbitration record was neither recorded nor transcribed, the parties concede that the arbitrator considered arguments, reviewed evidence, and heard witness testimony over the course of three days. He then reopened the proceedings for additional documentation, before issuing his thirteen-page award on December 8, 2015. Shortly thereafter, Yates timely filed its motion for clarification and/or correction of the arbitration award, which was summarily dismissed by the arbitrator. Noting that the award included no clerical, typographical, technical, or computational errors, the arbitrator determined he lacked the authority to re-evaluate the merits of any claim already decided, under the circumstances.

¶ 6. Within two weeks of the arbitrator's decision to deny Yates's motion, Caldwell requested that the circuit court confirm the award under Mississippi Code Section 11-15-125. One month later, Yates moved the trial court to alter, amend, or vacate the award under Mississippi Code Section 11-15-25. With the understanding that Yates would provide oral argument on its motion at the award confirmation hearing, Caldwell filed a request to limit the presentation of proof before the circuit court.

¶ 7. The hearing on all three motions was held on December 1, 2016. The circuit court judge began by requesting arguments on Caldwell's motion to limit proof. Throughout the presentations, the court asked questions of the parties' representatives and heard arguments on several issues under discussion. Believing that an evident miscalculation was present as it related to the retainage amounts included in both the subcontract and the final award, the court overruled Caldwell's request to limit proof and permitted the parties to proceed on Yates's motion to alter, amend, or vacate the arbitration award. During this second phase of the hearing, the trial court allowed the parties to introduce evidence and witness testimony. Though Caldwell's attorneys objected on the basis of whether such evidence was on the record during the arbitration and whether such testimony was considered by the arbitrator in his ultimate decision, the court allowed counsel for Yates to continue with his witness examination and evidence presentation.

¶ 8. Ultimately, the trial court reviewed fourteen exhibits and the testimony of one witness in making its decision. Based on this evidence, the court issued its order modifying the arbitrator's award on January 10, 2017. Under Mississippi Code Section 11-15-135 and the Federal Arbitration Act, the court determined that the award contained a "facially evident miscalculation which permitted ... Caldwell to receive double payment." Finding that the arbitrator had duplicated the labor costs for shingle installation in its award-once under the original subcontract and once under the oral agreement to repair the structural damage (referred to as the Repair Agreement)-it amended the award, reducing the total by $104,507.

¶ 9. On appeal, Caldwell argues that the trial court erred when it denied the motion to limit proof and allowed Yates to present evidence and witness testimony. Caldwell also contends that the trial court erred in finding that the arbitrator's award contained a facially evident miscalculation. We agree. Based on the analysis below, this Court finds that the arbitrator's award contained no evident miscalculations which would merit modification. Moreover, the circuit court erred by allowing Yates to present witnesses before the court. Therefore, we reverse the decision of the Neshoba County Circuit Court and remand for the court to confirm the arbitration award.

APPLICABLE LAW

¶ 10. This matter involves a contract's choice-of-law provision and the applicability of federal and state statutes, as well as trade-association regulations. Caldwell (a Georgia-based company) and Yates (a Mississippi corporation) entered into a subcontract in Mississippi to be performed in Alabama. It is undisputed that, between the two companies, their employees, and their distributors, both labor and materials crossed state lines. Unquestionably, these facts affect interstate commerce, creating the need to continue under the mandate of the Federal Arbitration Act. See 9 U.S.C.A. §§ 1, 2. Therefore, Yates correctly argues that the Federal Arbitration Act applies to this matter. See MS Credit Ctr., Inc. v. Horton , 926 So.2d 167, 173 (Miss. 2006) (quoting Guinness Harp Corp. v. Jos. Schlitz Brewing Co. , 613 F.2d 468 (2d Cir. 1980) (requiring that "[w]hen a commercial transaction involving interstate commerce includes an agreement to arbitrate disputes, federal law controls the enforcement of the arbitration agreement ." (emphasis added) ) ).

¶ 11. However, "[w]here ... parties have agreed to abide by state arbitration rules, enforcing those rules according to the terms of the agreement is fully consistent with the FAA ...". Volt Info. Sci., Inc. v. Bd. of Tr. of Leland Stanford Junior Univ. , 489 U.S. 468, 469, 109 S.Ct. 1248, 1250, 103 L.Ed. 2d 488 (1989) (United States Supreme Court determined that the parties' contractual agreement to pursue arbitration under their state rules of arbitration was not preempted by the Federal Arbitration Act when those rules did not "undermine the goals and policies of the FAA.") Article XIV of the parties' subcontract, titled "Dispute Resolution," begins as follows:

This Subcontract shall be deemed entered into in Philadelphia, Mississippi, upon execution by the parties. The laws of the state of Mississippi govern this Subcontract ....

Although the FAA applies directly to the matter, the parties knowingly and willingly contracted for the laws of this state to govern any disputes related to their agreement. Furthermore, neither party objected to the role of Mississippi law in the contract, nor did either insist on adherence to the FAA prior to the arbitration award's disclosure. Because this Court previously has provided that parties may limit contractually the issues which they will arbitrate (see Doe v. Hallmark Partners, LP , 227 So.3d 1052, 1055 (Miss. 2017) ), this Court will not hesitate to extend that provision-as the United States Supreme Court has-to allow parties to specify by contract the laws and rules under which that arbitration will be conducted. After all, "[a]rbitration under the Act is a matter of consent, not coercion, and parties are generally free to structure their arbitration agreements as they see fit." Volt Info. Sci., Inc. , 489 U.S. at 479, 109 S.Ct. at 1250, 103 L.Ed. 2d 488.

¶ 12. Based on their agreement, the parties' intent to proceed under Mississippi law is clear, and this Court therefore will apply the same. As a result, we continue our analysis under the provisions in Mississippi Code Sections 11-15-101 through 143. Titled "Arbitration of Controversies Arising from Construction Contracts and Related Agreements," this section of Mississippi's Arbitration Act applies "to any agreement for the ... engineering, construction, erection, repair or alteration of any building, structure, fixture, ... or any part thereof ... ". Miss. Code Ann. § 11-15-101 (Rev. 2004). Because the underlying dispute concerns the installation of a roof and a subcontract between two contractors, the laws under this section control the discussion below.

I. Whether the trial court erred in finding that the arbitrator's award contained an "evident miscalculation" of figures, justifying the award's modification.

¶ 13. A defining characteristic of arbitration is its finality and the binding disposition of a controversy. See Schaefer v. Allstate Ins. Co. , 63 Ohio St. 3d 708, 590 N.E.2d 1242 (1992). Parties to an arbitration enter the process knowing that the arbitrator's award will signal the factual end of their dispute, rather than leaving open the door to the possibility of future appeals. With this in mind, courts asked to review, confirm, or modify an arbitrator's award do so through an extremely limited lens. See Wilson v. Greyhound Bus Lines, Inc. , 830 So.2d 1151, 1155 (Miss. 2002). In this regard, "[t]he scope of judicial review of an arbitration award is quite narrow, and 'every reasonable presumption will be indulged in favor of the validity of arbitration proceedings.' " Id. (quoting Craig v. Barber , 524 So.2d 974, 977 (Miss. 1988) ) (see also Hutto v. Jordan , 204 Miss. 30, 36 So.2d 809, 811 (1948) ). Specifically, judicial review of an arbitrator's award is limited to Sections 10 and 11 of the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. , and Sections 11 - 15 -23, -25, -133 and -135 of the Mississippi Code. See Forsythe Int'l, S.A. v. Gibbs Oil Co. of Texas , 915 F.2d 1017, 1020 (5th Cir. 1990). Accordingly, a circuit court has no authority to modify a construction-related arbitration award unless the exceptions outlined under Mississippi Code Section 11-15-135(1)(a) and (2), or its nearly identical, sister provision, found in United States Code Chapter 9, Section 11(a), are met. See generally Margerum v. Bud's Mobile Homes, Inc. , 823 So.2d 1167, 1173 (Miss. 2002) (noting that "[t]he trial court is not allowed to substitute its own judgment on the merits of the controversy for that of the arbitrator but is instead constrained to determine whether the award fails analysis under § 11-15-23."). The applicable provision under Mississippi's construction arbitration statutes provides

(1) Upon application made by a party to the arbitration within ninety (90) days after receipt of a copy of the award, the court shall modify or correct the award where:
(a) There is an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
...
(2) If such application is granted, the court shall modify and correct the award so as to effect its intent and shall confirm the award as so modified and corrected; otherwise, the court shall confirm the award as made.

Miss. Code Ann. § 11-15-135 (Rev. 2004).

¶ 14. "A district court enforcing an arbitration award does not engage in a de novo review of the award"; rather, "it may reverse or modify the award only on specified grounds." Parsons & Whittemore Alabama Mach. and Servs. Corp. v. Yeargin Constr. Co., Inc. , 744 F.2d 1482, 1484 (Ala. Ct. App. 1984). This Court embraces an identical standard, requiring that trial courts narrowly focus their judicial review of arbitration awards on those extremely limited exceptions outlined by statute. Those courts limit their analysis of motions to vacate, modify, or correct an arbitration award and do not use such review as an opportunity to relitigate issues decided in the arbitration. See City of Hattiesburg v. Precision Constr., LLC , 192 So.3d 1089, 1096 (Miss. Ct. App. 2016). Rather, courts indulge " 'every reasonable presumption ... in favor of the validity of arbitration proceedings.' " Wilson , 830 So.2d at 1155 (quoting Craig , 524 So.2d at 977 ).

¶ 15. To that end, "[t]he standard by which an appellate court reviews a trial court's order confirming an arbitration award under the Federal Arbitration Act is that questions of law are reviewed de novo and findings of fact are reviewed only for clear error." Turquoise Props. Gulf, Inc. v. Overmyer , 81 So.3d 1250, 1253-54 (Ala. 2011) (citing Riccard v. Prudential Ins. Co. , 307 F.3d 1277, 1289 (11th Cir. 2002) ). Although this standard applies to review of awards under the FAA, this State's arbitration act-specifically the statutes in question-present nearly identical requirements and exceptions for this Court's review. We embrace this standard of review to evaluate properly the application of the statutes in question, while reviewing the trial court's actions for error.

A. What amounts to an evident miscalculation in an arbitration award?

¶ 16. The trial court determined that the arbitrator's award contained a "facially evident miscalculation," meriting a reduction of $104,507. As indicated supra , the Court has yet to determine what amounts to an evident miscalculation justifying modification under the law. Like the trial court, some courts have suggested that the error not only must be evident, but that it must be facially evident from the text of the award. See generally Apex Plumbing Supply, Inc. v. U.S. Supply Co., Inc. , 142 F.3d 188, 194 (4th Cir. 1998) ; Grain v. Trinity Health, Mercy Health Servs. Inc. , 551 F.3d 374, 379 (6th Cir. 2008). Some have argued that the miscalculation must reflect a mathematical or computational error in the award. See generally Grain , 551 F.3d at 378 ; Apex Plumbing Supply, Inc. 142 F.3d at 194. See also Stroh Container Co. v. Delphi Indus., Inc. , 783 F.2d 743, 749 (8th Cir. 1986) (finding that a miscalculation under 9 U.S.C. § 11(a) is evident "when a simple formal, descriptive, or mathematical mistake was made"). The Fifth Circuit has gone so far as to determine that an " 'evident material [mis]calculation' occurs 'where the record that was before the arbitrator demonstrates an unambiguous and undisputed mistake of fact and the record demonstrates strong reliance on that mistake by the arbitrator in making his award.' " Prestige Ford v. Ford Dealer Computer Servs., Inc. , 324 F.3d 391, 396 (5th Cir. 2003) (quoting Valentine Sugars, Inc. v. Donau Corp. , 981 F.2d 210, 214 (5th Cir. 1993) ), overruled on other grounds .

¶ 17. Recently, the Mississippi Court of Appeals united these standards in City of Hattiesburg v. Precision Constr., LLC. , 192 So.3d 1089 (Miss. Ct. App. 2016). Similar to the matter at hand, the City of Hattiesburg court was asked to review the circuit court's decision to deny the City's request to modify the arbitrator's award based on an allegedly evident miscalculation under Mississippi Code Section 11-15-135. Id. at 1090-91. With no record to review and only a transcript of the arbitrator's decision to supplement the written award, the court considered the parties' arguments, deferring to the arbitrator's decision and indulging every presumption in favor of its validity. Id. at 1093.

¶ 18. In this unanimous opinion, the court began by evaluating the various positions on the meaning of "evident miscalculation." It determined that neither "a mistake of fact or misinterpretation of law by an arbitrator" could amount to an evident miscalculation; rather, such a finding must include "a 'mathematical error' apparent 'on the face of the award.' " Id. at 1094. Further, the court adopted the Fifth Circuit's interpretation, supra , finding an evident material miscalculation when "the record that was before the arbitrator demonstrates an unambiguous and undisputed mistake of fact and the record demonstrates strong reliance on that mistake by the arbitrator in making his award." Id. Combining these tests, the court determined that the City had failed to establish the statutory requirement for modification. Id.

¶ 19. Assessing this standard, we note first that the Court recognizes arbitration as a binding, bargained-for, dispute-resolution method, and that those matters arbitrated should not be retried by the courts of this state. See City of Hattiesburg, 192 So.3d at 1096 (holding that "judicial review of arbitration award is narrowly limited, and a motion to vacate, modify, or correct an arbitration award is not an opportunity to relitigate issues decided in the arbitration."). See also Johnson Land Co. v. C.E. Frazier Constr. Co., Inc. , 925 So.2d 80, 86 (Miss. 2006) (holding that "arbitration is a substitute for, rather than a mere prelude to, litigation."). Accordingly, arbitration awards are considered final, with very few, narrow exceptions outlined by statute. See generally Craig , 524 So.2d at 977.

¶ 20. Concerning the narrow exception at issue, the Court finds that the "evident" (plain, obvious, or clearly understood) miscalculation must be apparent from nothing more than the four corners of the award and the contents of the arbitration record. See Apex Plumbing Supply, Inc. , 142 F.3d at 194 (holding that "even if the claimed miscalculation ... constituted a 'material mistake,' the miscalculation was not 'evident' because it did not appear on the face of the arbitration award."). See also Overmyer , 81 So.3d at 1257 (recognizing an evident material miscalculation of figures was "apparent on the face of the award"). Looking to evidence beyond "the face" of the award or the arbitration record allows the parties an opportunity to retry the matter in front of a trial judge. Not only does this diminish the binding nature and finality of arbitration proceedings, but by seeking a new judgment from a trial court after resolving the matter through arbitration, the parties implicitly are deprived of their right to a jury trial if desired. See Riverboat Corp. of Mississippi v. Harrison Cty. Bd. of Supervisors , 198 So.3d 289 (Miss. 2016) ; Edmonds v. State , 234 So.3d 286 (Miss. 2017) (confirming that the right to a jury trial exists in civil matters). We fail to find any law supporting the notion that our courts should grant parties an opportunity to present new evidence or witness testimony-even in the absence of an arbitration record-and we decline to create such law now. Rather, we find that "[t]he miscalculation, to be evident, must appear on the face of the award or be so readily apparent from the documentation in the case that explanation by proofs is not necessary." Severtson v. Williams Constr. Co. , 173 Cal.App.3d 86, 220 Cal.Rptr. 400, 405 (Cal. App. 2 Dist. 1985). By limiting the trial court's review to the arbitration award and the arbitration record alone, we ensure the integrity of arbitration proceedings will endure, preserving parties' right to review under the statute.

¶ 21. Secondly, we distinguish the Court of Appeals' application of the Fifth Circuit standard in the City of Hattiesburg from the matter at hand. "The Fifth Circuit has held that 'an evident material miscalculation occurs where the record that was before the arbitrator demonstrates an unambiguous and undisputed mistake of fact and the record demonstrates strong reliance on that mistake by the arbitrator in making his award.' " City of Hattiesburg , 192 So.3d at 1094 (quoting U-Save Auto Rental of Am., Inc. v. Barton , No. 3:15-CV-348-DPJ-FKB, 2016 WL 595545, at *5 (S.D. Miss. Feb. 12, 2016) ). However, because our statutes require that a miscalculation only be evident , and not also material , the federal standard does not apply. Because the federal statute differs in this one, critical aspect, we decline to adopt the "unambiguous and undisputed mistake of fact" test. See Barton , 2016 WL 595545, at *5. Instead, we apply the Court of Appeals approach to modifying arbitration agreements under the applicable Mississippi statutes and seek only to answer whether the arbitrator made a computational or mathematical error, apparent on the face of the award.

B. Was a miscalculation evident under this standard?

¶ 22. In City of Hattiesburg , the Court of Appeals noted that the City's arguments regarding the alleged miscalculation failed on two accounts. First, it found that "[t]he concept of an 'evident miscalculation' presupposes that the parties presented the arbitrator with evidence from which a 'correct' calculation could have been made." City of Hattiesburg , 192 So.3d at 1095. If the arbitrator's "calculations were consistent with the evidence and argument presented, then there [was] no miscalculation." Id. However, with no record of the arbitration, the court was limited in its ability to investigate the City's claim on the evident miscalculation. Recognizing the limitation, it moved its analysis to look to factual arguments made by the City to support its motion. Id. There, it found that the City's arguments failed because, as a rule, our appellate courts do not "inquire into the evidentiary basis of the award." Id.

¶ 23. Because "[t]he City's argument relie[d] on a series of alleged facts, assumptions, prices, and calculations that [were] not 'evident' from the arbitrator's decision or anything else in the record," the court held that "the City [could not] identify any evident miscalculation of figures or any other basis for vacating or modifying the arbitrator's award." City of Hattiesburg , 192 So.3d at 1096. Caldwell's appeal tasks this Court with the same question: Can Yates identify evidence from which a different, but correct, calculation could be made and if not, can it identify an evident miscalculation of figures? Without looking outside the undisputed facts or relying upon testimony from a witness in the trial court, we find that Yates is unable successfully to identify either.

¶ 24. We note that the extremely limited judicial scope of arbitration awards permits little room for the Court's analytical autonomy in this matter. See Wilson , 830 So.2d at 1155. According to precedent set by the Court of Appeals and the Fifth Circuit, this Court may review (1) the arbitrator's award, (2) the written arguments by the attorneys in their motions to the trial court and in their briefs on appeal, (3) the oral arguments presented to the judge regarding the motion to limit proof, and (4) all documents agreed by the parties to be part of the record before the arbitrator. What the Court may not consider is the witness testimony garnered during the trial court's hearing: such consideration allowed the trial court to enter into a fact-finding position, not appropriate under such circumstances. Our statutes concerning the modification and vacation of awards by "an arbitral tribunal are precisely and narrowly drawn to prohibit such complete de novo review of the substance of the award, as distinguished from gross calculation errors or inadequacies in the makeup of the tribunal itself." Legion Ins. Co. v. Ins. Gen. Agency, Inc. , 822 F.2d 541, 543 (5th Cir. 1987). Consequently, "[t]he only basis ... for reversal of an arbitrator's decision is a violation of the appropriate statute." Robinson v. Henne , 115 So.3d 797, 800 (Miss. 2013). Such limited review has engendered this Court's history of deference to arbitrators, fostering " 'the general rule [that arbitrators] are the final judges of both law and fact, and an award will not be reviewed or set aside for mistake in either.' " Hutto v. Jordan , 204 Miss. 30, 36 So.2d 809 (1948).

¶ 25. Importantly, relevant Mississippi law supports the trial court's review of the arbitrator's award when determining whether an evident miscalculation exists. This same law provides for the presentation of party arguments through motions and court hearings. While written arguments and those orally presented during a hearing may not have been identical to the arguments before the arbitrator, precedent indicates that attorney-delivered arguments are permissible during the confirmation process of an arbitrator's award. See generally City of Hattiesburg, 192 So.3d 1089 (reviewing the circuit court's decision to confirm an arbitration award without a transcript or a record, after conducting an evidentiary hearing on the parties' arguments). Likewise, when the arbitration record is not made available to the court, and the parties agree that the documentary and tangible evidence proffered was a part of the record before the arbitrator, a trial court may, at its discretion, accept that evidence for review. See Wilson , 830 So.2d at 1156-57 ("The trial court did not abuse its discretion by" limiting its review to documents included as part of the original arbitration record.) However, the court shall use the record evidence only in its efforts to "confirm the award, not review its substance." Johnson Land Co. v. C.E. Frazier Constr. Co., Inc. , 925 So.2d 80, 86 (Miss. 2006).

¶ 26. Following guidelines established by the Court of Appeals and various other courts across the country, we begin our narrow analysis by looking to the thirteen-page award for any facially evident miscalculations or computational errors. In doing so, we find that no such errors are present. Looking next to the attorney-written arguments, oral arguments, and agreed-upon record evidence, we likewise fail to find such errors.

¶ 27. In addressing the alleged errors, we specifically highlight Yates's claim regarding the arbitrator's approach to the retainage amounts. Yates argues that the arbitrator erroneously dismissed the retainage claim without prejudice, asserting that the arbitration award and disposition can either be final or not final, but that it cannot be both. The company alleges that Caldwell's ability to submit the retainage portion of its award to another arbitration single-handedly warrants modification of the award, either vacating the claim entirely or entering the award, with prejudice. We disagree and find that this claim does not amount to an evident miscalculation. Rather, we find that the arbitrator clearly defined the retainage amounts and subtracted them from the overall award as monies "unpaid yet remaining under dispute." Contrary to the explanation provided by Yates, the retainage amounts were not included as recoverable in the award and then left open for determination at a later date. Instead, such amounts were completely removed from the award as not ripe for review.

¶ 28. While we have yet to address whether arbitration awards may be partial, final, and binding all at once, the general understanding of retainage and the information provided through the party arguments indicate that the retainage was not yet payable. Consequently, it was not yet clear what amounts the arbitrator should or should not award. Recognizing this limitation, the arbitrator's award contemplates retainage based on the original subcontract and reserves its resolution for when the specific amounts become due. We find no error in this conclusion.

¶ 29. Reviewing the award, the parties' arguments, and the agreed-upon record, we fail to find that the arbitrator erroneously duplicated costs of labor and relied on such a duplication in making his award. Nor can we ascertain that the arbitrator erred by excluding the retainage totals. As a result, the trial court exceeded its jurisdiction by assuming the role of factfinder and reviewing witness testimony outside the arbitration record to determine where and to what extent a miscalculation existed. Instead, the court should have considered only the parties' initial arguments, along with any agreed-upon-arbitration-record evidence presented to supplement the written award.

C. Even if the trial court could have detected a miscalculation in the award, was it error to allow parties to present witness testimony?

¶ 30. Time and again, our appellate courts have held that "it is not appropriate for this Court to inquire into the evidentiary basis of [an arbitrator's] award." D'Angelo v. Hometown Concepts, Inc. , 791 So.2d 270, 273 (Miss. Ct. App. 2001) (affirming the trial court upon finding that any error in the amount of damages the arbitrator awarded was not the product of an evident miscalculation of figures, but a contested issue of fact). To do otherwise would be to open the door to the boundless legal and evidentiary appeals that can " 'rende[r] informal arbitration merely a prelude to a more cumbersome and time-consuming judicial review process,' and bring arbitration theory to grief in post arbitration process." Hall Street Assocs., L.L.C. v. Mattel, Inc. , 552 U.S. 576, 588, 128 S.Ct. 1396, 1405, 170 L.Ed. 2d 254 (2008) (holding U.S.C. §§ 9, 9-11 as the substance of a national policy favoring arbitration and its limited review, maintaining the essential quality of arbitration as its ability to immediately resolve disputes). "In the years before the passage of the FAA, arbitration awards were subject to thorough and broad judicial review .... In §§ 10 and 11 of the FAA, Congress significantly limited the grounds for judicial vacatur or modification of such awards in order to protect arbitration awards from hostile and meddlesome courts." Hall Street Assocs. , 552 U.S. at 595, 128 S.Ct. 1396. Much like Sections 10 and 11 of the FAA, the Mississippi construction arbitration statutes significantly limit the grounds for vacation and modification under Mississippi Code Sections 11-15-133 and 11-15-135 respectively. Courts adhering to these rules have no need to hear witness testimony to determine whether an award should be modified or withdrawn; rather, courts make these decisions based on the evident nature-the clear and obvious presence-of the error in the award.

¶ 31. The evident nature of an award's calculation error along with the arguments and record evidence presented by the parties would have been enough for the trial court to make its decision. While the trial judge determined that an evident miscalculation existed in the award prior to hearing the witness testimony, the judge erred by later permitting the testimony and using it to make his ultimate decision on where and to what extent the miscalculation existed. Such an error transformed the trial court's role in the confirmation and modification hearing, expanding the very narrow and limited purpose of its review, and imbuing it with the responsibility of the factfinder. Because arbitration is meant to supplant litigation, not supplement it, the court abused its discretion by allowing witness testimony during the award-confirmation hearing, resulting in plain error by the court.

¶ 32. This Court holds that in such a situation, courts requested to confirm, modify and/or vacate arbitration awards are not at liberty to permit the examination of witnesses. Providing otherwise would permit courts to relitigate factual matters already decided. We previously noted that "the confirmation of an award ... is not a trial. Findings of fact [are] superfluous." Johnson Land Co. , 925 So.2d at 86 (quoting Thorgaard Plumbing & Heating Co. v. Cty. of King , 71 Wash. 2d 126, 132, 426 P.2d 828 (1967) ). "The object [of arbitration] is to avoid what some feel to be the formalities, the delay, the expense and vexation of ordinary litigation." Id. Likewise, today we recognize that witness testimony outside the confines of the arbitration record amounts to fact finding by the trial court, exceeding the scope of the court's review. Such "complete de novo review of the substance of the award" is prohibited by our narrowly drawn statutes. Legion Ins. Co. , 822 F.2d at 543. To that end, we find that, even if the judge was warranted in his initial determination that a miscalculation existed, it was error for the court to permit the examination of witnesses to determine the character and extent of the mistake.

II. Whether Caldwell is entitled to attorney's fees and costs of appeal .

¶ 33. Mississippi Code Section 11-15-137 provides that "[u]pon the granting of an order confirming, modifying or correcting an award, a judgment or decree shall be entered and be enforced as any other judgment or decree. Costs may be awarded by the court." Miss. Code Ann. § 11-15-137 (Rev. 2004). Citing this statute, Caldwell asserts that Yates understood the extremely limited standard for arbitration-award review, and because it failed to raise cognizable grounds for the trial court to amend, alter, or vacate the award, this Court should award attorney's fees and costs resulting from Yates's motions in the trial court. Though we find that Caldwell's argument fails on several points under this request, the most relevant is that the parties contracted away their right to request fees and costs.

¶ 34. In their original subcontract, the parties stipulated that if the two engaged in litigation or arbitration over "a monetary claim[,] each party shall be solely responsible for its respective costs, expenses and attorneys fees. ..." While the determination of " 'reasonable attorneys' fees is a matter ordinarily within the sound discretion of the trial court," (See Mississippi Power & Light Co. v. Cook , 832 So.2d 474, 486 (Miss. 2002) (quoting Gilchrist Tractor Co. v. Stribling , 192 So.2d 409, 418 (Miss. 1966) ), this Court has long held that "[a]bsent some statutory authority or contractual provision, attorneys' fees cannot be awarded unless punitive damages are also proper." Fulton v. Mississippi Farm Bureau Cas. Ins. Co. 105 So.3d 284, 287-88 (Miss. 2012) (citations omitted). Neither is available here.

¶ 35. Moreover, the Mississippi Rules of Appellate Procedure broadly describe the Court's role in awarding fees and costs under Rule 36. The authority under this rule provides the Court with generous discretion in making such an award. Exercising that discretion, the Court recognizes the parties' agreement, holding them responsible for their individual costs and fees and dividing the costs of appeal accordingly.

CONCLUSION

¶ 36. Generally, arbitrators have broad discretion in determining the remedy appropriate for the matters before them. With statutorily guided deference, courts of this state limit their judicial review of such proceedings, indulging "every reasonable presumption ... in favor of the validity of arbitration." Hutto v. Jordan , 204 Miss. 30, 36 So.2d 809, 811 (1948). We do not use the statutory exceptions "to inquire into the original merits ... or to show that in the evidence the award ought to have been different ... or that the decision, in view of all facts and circumstances, was unjust." Id. Instead, our courts employ the limited exceptions, all while "resist[ing] the temptation to condemn imperfect proceedings without a sound statutory basis for doing so." Forsythe Int'l, S.A. v. Gibbs Oil Co. of Texas , 915 F.2d 1017, 1022 (5th Cir. 1990).

¶ 37. Applying this review, we find the award at issue contains no evident miscalculations and is accurate according to the facts demonstrated by the parties to have been before the arbitrator. Because Yates failed to show that any mathematical error appears on the face of the award there is insufficient proof of an evident miscalculation that would compel the Court to modify the award. Therefore, we reverse the circuit court's decision to modify the arbitrator's award, and remand the case to the circuit court with directions to confirm the award as determined by the arbitrator.

¶ 38. REVERSED AND REMANDED.

WALLER, C.J., RANDOLPH, P.J., KING, COLEMAN, MAXWELL, CHAMBERLIN AND ISHEE, JJ., CONCUR. KITCHENS, P.J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.; COLEMAN, J., JOINS IN PART.

KITCHENS, PRESIDING JUSTICE, SPECIALLY CONCURRING:

¶ 39. I agree with the majority's decision that the arbitrator's award in this case did not demonstrate an "evident miscalculation" within the meaning of Mississippi Code Sections 11-15-25(a) and 11-15-135(a), necessitating a modification, and that the Circuit Court of Neshoba County erred by allowing witness testimony during the award confirmation hearing. I write separately solely for the purpose of making an observation.

¶ 40. Mississippi Code Section 11-15-1 states:

All persons, except infants and persons of unsound mind, may, by instrument of writing, submit to the decision of one or more arbitrators any controversy which may be existing between them, which might be the subject of an action, and may, in such submission, agree that the court having jurisdiction of the subject matter shall render judgment on the award made pursuant to such submission.

Miss. Code Ann. § 11-15-1 (Rev. 2014). Mississippi Code Section 11-15-21 (Rev. 2014) states:

Upon presentation of the articles of submission and the award to the court designated in the submission or the court having jurisdiction of the subject matter of the award, the court shall, upon motion, confirm the award, unless the same be vacated or modified, or a decision thereon be postponed, as hereinafter provided.

Miss. Code Ann. § 11-15-21 (Rev. 2014). Mississippi Code Section 11-15-25 allows any party to the arbitration to move to modify or correct the award "[w]here there is an evident miscalculation of figures or an evident mistake in the description of any person, thing, or property referred to in such award ...." Miss. Code Ann. § 11-15-25(a) (Rev. 2014). Mississippi Code Section 11-15-135 requires the court to modify or correct the arbitral award when "[t]here is an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award ...." Miss. Code Ann. § 11-15-135(a) (Rev. 2014).

¶ 41. As the majority recognizes, this Court has held that:

We agree with the analysis and ruling of the Supreme Court of Washington, in Thorgaard Plumbing & Heating Co. v. County of King , 71 Wash. 2d 126, 132, 426 P.2d 828 (1967), that arbitration is a substitute for, rather than a mere prelude to, litigation. The object is to avoid what some feel to be the formalities, the delay, the expense and vexation of ordinary litigation. Id. "[T]he confirmation of an award ... is not a trial. Findings of fact would have been superfluous." Id. at 136, 426 P.2d 828. This reasoning supports the long-standing public policy, set forth in Scottish Union & National Ins. Co. v. Skaggs , 114 Miss. 618, 619, 75 So. 437, 438 (1917), to "permit parties to arbitrate their differences and to give effect to a valid submission and award." Id. Further, the Skaggs Court articulated the public policy that the arbitration and award statute "shall be liberally construed for the encouragement of the settlement of disputes and the prevention of litigation." Id.

Johnson Land Co. v. C.E. Frazier Constr. Co., Inc. , 925 So.2d 80, 86 (Miss. 2006).

¶ 42. The Mississippi Constitution provides that "[t]he circuit court shall have original jurisdiction in all matters civil and criminal in this state not vested by this Constitution in some other court, and such appellate jurisdiction as shall be prescribed by law." Miss. Const. art. 6, § 156. The Constitution prescribes that "[t]he powers of the government of the State of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit:

those which are legislative to one, those which are judicial to another, and those which are executive to another." Miss. Const. art. 1, § 1. "No person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others." Miss. Const. art. 1, § 2.

¶ 43. This Court has held that it is the province of the judiciary "to draw upon its inherent power to prescribe rules of procedure to facilitate the administration of justice in the courts throughout the state." Newell v. State , 308 So.2d 71, 78 (Miss. 1975). This Court continued:

[A]s long as rules of judicial procedure enacted by the legislature coincide with fair and efficient administration of justice, the Court will consider them in a cooperative spirit to further the state's best interest, but when, as here, the decades have evidenced a constitutional impingement, impairing justice, it remains our duty to correct it.

Id.

¶ 44. Both parties in the present case, seasoned contractors and subcontractors, contracted to forego any potential remedy in the courts of this State by agreeing to arbitrate their claims. Nevertheless, being dissatisfied with the arbitral award, Yates, employing procedures outlined in the controlling statutes, invoked the services of this State's court system to amend that award.

¶ 45. Here, but for the parties' having made a valid agreement to arbitrate, the Circuit Court of Neshoba County would have had original jurisdiction of the dispute. The arbitration statutes establish rules of procedure for resolving disputes outside this State's court system. But the statutes go further than that by mandating that the circuit court confirm the award, while at the same time limiting the court's review of the award. Thus far, this Court has forgone its constitutional prerogative by acquiescing in such legislative limitation of its authority over matters of judicial procedure; and the statutes do appear, in the present case, to "coincide with fair and efficient administration of justice" not resulting in a "constitutional impingement, impairing justice."

KING, J., JOINS THIS OPINION. COLEMAN, J., JOINS THIS OPINION IN PART.

      Both Mississippi Code Sections 11-15-25(a) and 11-15-135(a) provide that award modifications may be made if "there is an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award." Miss. Code Ann. §§ 11-15-25(a), 11-15-135(a) (Rev. 2004). Yates failed to cite the provisions of the Mississippi Code construction arbitration laws under Section 11-15-101 through 143, though any error here is harmless, as the statutes are identical.

      Retainage is money withheld in a construction project pending satisfactory completion of the work.

      Wilson, J., writing; Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Carlton and Greenlee, JJ., concurring; Fair and James, JJ., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    Damion Lafredrick PACE a/k/a Damion Pace a/k/a Damion L. Pace a/k/a Damian Lafredrick Pace v. STATE of Mississippi
    NO. 2015-KA-01916-SCT
    Supreme Court of Mississippi.
    May 10, 2018
    ATTORNEY FOR APPELLANT: JARED K. TOMLINSON, Jackson, DAMION L. PACE, PRO SE
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA McCLINTON, JASON L. DAVIS, Jackson
    BEFORE KITCHENS, P.J., KING AND COLEMAN, JJ.
   KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. Damion Lafrederick Pace was indicted for one count of burglary, two counts of kidnapping, one count of forcible rape, and one count of extortion. All five counts concerned events that occurred on the night of April 14, 2010. The jury was instructed on the elements of burglary, kidnapping, forcible rape, and extortion. The jury acquitted Pace of forcible rape, but convicted him of one count of extortion, two counts of kidnapping, and one count of robbery, a crime for which Pace had not been indicted. The Circuit Court of Scott County sentenced him to twenty years for robbery, twenty years for each of the kidnappings, and ten years for extortion, with the sentences to run consecutively.

¶ 2. Pace appeals, arguing that the circuit court erred by denying his motion for a directed verdict and that he received ineffective assistance of counsel. We hold that, because Pace was not indicted for robbery and robbery is not a lesser-included offense of the indicted crime of burglary, the trial court's entry of a judgment of conviction of robbery was a plain error that requires vacation of the robbery conviction and sentence. Therefore, we vacate and render the robbery conviction and sentence. We find that Pace's other issues are without merit.

FACTS

¶ 3. Jessica Goodwin provided most of the testimony against Pace. Goodwin testified that, on April 14, 2010, she was living in the rural Lake community in Scott County with her four-month-old daughter, Melissa, and Melissa's father, who was not present that night. At about 10:00 or 10:15 p.m., Goodwin was preparing to bathe Melissa when she was startled by a masked man standing in the living room holding a gun. The man had entered through the unlocked back door. He demanded money and guns and, when Goodwin said she had none to give him, he forced her to rummage through her belongings. Later, this man was identified as Darrin Wilson. During the search, another masked and armed man, later identified as Devonte Hughes, appeared. Hughes and Wilson searched the house for items to steal. Then Wilson told Goodwin that she was coming with them.

¶ 4. At gunpoint, Wilson and Hughes forced Goodwin, holding Melissa, out the back door and down the road, where a car was parked in the bushes. Wilson instructed Goodwin to get in the back seat. Then he got in the driver's seat and Hughes occupied the front passenger's seat. They rode back to Goodwin's house and, as they were leaving, she saw Pace, whom she recognized as a former high school classmate, standing in front of her house. Pace got into the back seat with her and slipped a mask over his face. Goodwin testified that, as they drove away, Hughes said "get the TV," but Wilson said "no" and kept driving. As they turned down another road, Pace leaned forward and announced that he was ready to have sex.

¶ 5. Then, Wilson asked Goodwin whether she could obtain money, and Goodwin said she thought she could ask her father. Hughes, who had taken Goodwin's cell phone from the house, passed it to her, and she telephoned her stepmother, Angela Goodwin. Wilson told Goodwin to say that he wanted $2,000 and not to contact the police or he would kill her and her baby. Goodwin testified that she complied, but she had trouble communicating because Melissa was crying loudly. Angela Goodwin said that her stepdaughter was hysterical and Melissa was crying so loudly that she could barely understand what Jessica Goodwin was saying, so she handed the phone to Goodwin's father, Tim Goodwin. Tim Goodwin put the speaker phone on, and he and Angela heard Jessica Goodwin say that the men wanted $2,000 or she and Melissa would be killed. Then, Wilson demanded the phone from Goodwin and told her to give Melissa to Pace and get out of the car. She complied. Tim Goodwin told Wilson that he did not have $2,000, so Wilson asked whether he wanted Goodwin and Melissa returned. Tim Goodwin told Wilson he had $500, and Wilson instructed him to put it in a paper bag and place it at the end of Good Hope Road. Tim Goodwin testified that he complied with this demand.

¶ 6. Jessica Goodwin testified that, when the call ended, Wilson exited the car and she asked him if she could hold Melissa, who was crying. Wilson allowed her to take Melissa from Pace. Then, Wilson began touching Goodwin and she said "please don't do it." But Wilson forced her to turn around, pushed her against the car, and raped her at gunpoint as she held Melissa and the other two men watched. Then, Pace raped Goodwin against the car as she screamed, "please, no." Wilson then asked Hughes if he wanted to have sex with her, but he declined, so Wilson ordered Goodwin to pull up her pants and get in the car.

¶ 7. Jessica Goodwin testified that they all got back in the car and Wilson drove to Johnstontown Road, where he stopped and let Pace and Hughes out. Then, Wilson drove farther down the road to a trailer home, parked in the driveway, and exited the vehicle. Goodwin observed several people outside the trailer. Wilson was gone for five to ten minutes, during which time Goodwin contemplated running away with Melissa, but decided it was too dangerous due to the high probability that they would be captured again. When Wilson returned, he telephoned Jessica Goodwin's father, who said he had dropped off the money. Then, Wilson drove Goodwin and Melissa to the end of Good Hope Road, where he took possession of a brown paper bag with $500 inside.

¶ 8. After collecting the money, Wilson drove Jessica Goodwin and Melissa back to the residence on Johnstontown Road, then to a driveway that led to a pasture. He ordered Goodwin to get out of the car, whereupon she exited the car with Melissa, and Hughes walked toward them from the woods. Then, Wilson walked away in the direction from which Hughes had arrived. Hughes told Goodwin that things had gone too far and that it wasn't supposed to be like this. He also said that Wilson had said he was going to kill them, but Hughes would not let that happen. A few minutes later, Wilson returned with Pace. Wilson held a plastic bottle filled with liquid and ordered Goodwin to use it as a douche. Goodwin testified that when she complied, the liquid burned her private area. Wilson also demanded Goodwin's underwear, which she gave him. Then, everyone got back into the car, and Wilson called Goodwin's father and told him where he could find Goodwin and Melissa. He dropped off Goodwin and her baby one road away from her home, and her father promptly picked them up. Goodwin's father drove them home, then her stepmother immediately took them to a hospital, where Goodwin underwent a sexual assault examination. Goodwin testified that her television set had been removed from her home.

¶ 9. The next day, Pace was arrested, and, on April 16, 2010, he gave a statement to Officers Billy Patrick and Willie Anderson of the Scott County Sheriff's Department. Pace said that he had stayed outside while Wilson and Hughes went into Goodwin's house. He heard a woman's screams coming from inside the house, then Wilson emerged from the house holding Goodwin and her baby at gunpoint. Hughes brought a television set and a video game console out of the house and secreted them on the roadside. Then, Wilson and Hughes got into the car and picked up Pace. Pace said that he whispered to Wilson and Hughes that he and Jessica Goodwin knew each other from school. Wilson parked in a pasture and called Goodwin's father to ask for money for the return of Goodwin and Melissa. Pace said that Wilson demanded $2,000 but "came down to" $1,000 and told Goodwin's father where to drop the money. Then, Wilson ordered Goodwin out of the car, and she handed Melissa to Pace, but when the baby did not stop crying, Pace returned her to Goodwin. Pace said that Wilson raped Goodwin as she held the baby, then "made me have sex with the lady also at gunpoint."

¶ 10. Pace said that, next, they drove to Johnstontown Road. Hughes and Pace exited the car and walked to Bridget Wilson's house, then Hughes borrowed a car from Pace's cousin and picked up the television set and video game console. When Hughes returned to Bridget Wilson's residence, Wilson, who had arrived at some point, said he was going to kill Jessica Goodwin. Resolved to prevent Wilson from killing her, Pace and Hughes got back into the car with Wilson and Goodwin. Wilson drove to a remote area and then Pace and Wilson left and obtained a bottle of vinegar from Wilson's mother's house. When they returned, Wilson ordered Goodwin to wash with it. When they got back into the car, Pace told Wilson to drop Goodwin off, and Wilson called Goodwin's father and told him where he had left her.

¶ 11. Pace presented the testimony of several witnesses including himself. Kathryn Moyse was a forensic DNA analyst who had compared DNA from the vaginal swab from Goodwin's sexual assault kit with DNA from buccal (oral) swabs taken from Wilson, Hughes, and Pace. Moyse testified that a single source profile was obtained from semen on the vaginal swab, indicating that the semen on the swab was from a single person, and she had determined that this single source was Darrin Wilson.

¶ 12. Darrin Wilson, who was incarcerated for his crimes at the time of Pace's trial, testified that he had lived on Johnstontown Road all his life and had grown up with Pace. He testified that he and Jessica Goodwin had known each other for several months before the night in question and, in fact, met occasionally in secret to do drugs together. He testified that, the night of April 14, 2010, he and Goodwin had concocted and executed a plan to extort money from her father with the object of buying crystal methamphetamine. He also testified that he had consensual sex with Goodwin that night, but that Pace never had sex with her. At some point, he went to Bridget Wilson's house and talked with Pace and Hughes. On cross examination, he was asked about the baby, and he testified that Goodwin had the baby with her the entire time because she routinely brought the baby when they met to do drugs. He testified that Pace and Hughes had been with them for part of the night, but they had not known of the extortion plan. He denied that Hughes had taken Goodwin's television set or video game console. Wilson testified that, after he and Goodwin had gotten the money, Goodwin saw a car she thought was her boyfriend's and demanded to be dropped off immediately. Wilson also testified that he had been listening on an open cell phone line during Pace's police interview, and he never heard Pace confess. Instead, he overheard the officers promise Pace that if he signed a prewritten statement, he could go home.

¶ 13. Pace testified in his own defense, and his testimony mirrored the version of events provided by Wilson. Pace testified that he was eighteen years old on the night of the alleged crimes. He said that he and Hughes had accompanied Wilson to a woman's house. Wilson went inside and later emerged with Goodwin and her baby. Then, they went to Bridget Wilson's house, where Wilson had left Hughes and Pace. Pace testified that he never saw Wilson with a gun, and he denied that he, Pace, ever had sex with Goodwin. Pace denied that Hughes had removed a television set or video game console from Goodwin's house. He said he was not involved in the conversation with Goodwin's father about money. Further, Pace testified, he never had confessed, and that what purported to be his signed confession was instead a prewrittten statement that the officers had coerced him to sign by holding a gun on him and promising that he could go home if he signed.

¶ 14. Pace's stepfather, Marcus Wilson, testified on behalf of Pace that he was present for Pace's interview with the police. Marcus Wilson said that he urged Pace to tell the truth, and listened as Pace gave his confession and witnessed the officer writing down what Pace said. He testified that Darrin Wilson is his nephew. He also testified that he lives about three miles away from Goodwin's house and that his niece, Bridget Wilson, lives down the street. Marcus Wilson testified that he was not home on the night of the crimes. Marcus Wilson did testify that Pace asked for an attorney during his interview.

¶ 15. Bridget Wilson testified that Pace and Hughes came to her house that night and stayed about thirty or forty-five minutes, then departed together. Lorenzo Pace testified that he saw Pace and Hughes at Bridget Wilson's house at about 9:00 or 10:00 p.m. on the night in question. They stayed about thirty or forty-five minutes. While they were there, Wilson came in, and shortly all three left together. He saw Pace and Hughes again at about 1:00 or 2:00 a.m., when Hughes called and asked him to get them from Pace's mother's house. Hughes's father, Lester Harper, also testified.

DISCUSSION

I. PACE'S CONVICTION OF THE CRIME OF ROBBERY WAS A PLAIN ERROR REQUIRING VACATION OF THE CONVICTION AND SENTENCE.

¶ 16. Pace's indictment charged him with the following crimes: Count One, burglary with the intent to commit larceny; Count Two, the kidnapping of Jessica Goodwin; Count Three, the kidnapping of Melissa; Count Four, the forcible rape of Jessica Goodwin; and Count Five, extortion of $500 from Tim Goodwin by threatening to inflict bodily harm on Jessica Goodwin. The jury was instructed on aiding and abetting and on the elements of burglary with the intent to commit larceny, kidnapping, forcible rape, and extortion. The jury acquitted Pace of forcible rape. Regarding Count One, the jury's verdict form read: "Count 1 (Robbery) We, the jury find the defendant, Damion Lafredrick Pace, guilty as charged in Count One." The jury also found Pace guilty of the two kidnapping counts and extortion. The trial court polled the jury and all jurors agreed on the verdict.

¶ 17. On June 21, 2011, the trial court entered a judgment of acquittal of forcible rape. The same day, the trial court entered a separate judgment of conviction that recited verbatim the jury's verdict form, including "Count I (Robbery) We, the Jury, find the Defendant, DAMION LAFREDERICK PACE, guilty as charged in Count I." This judgment shows that the trial court sentenced Pace to twenty years for Count I, twenty years for Count II, twenty years for Count III, and ten years for Count V, to run consecutively. What the judgment communicates regarding Count One is that Pace was charged with "COUNT I-BURGLARY OF A DWELLING HOUSE," but convicted of "Count I (Robbery)."

¶ 18. On August 19, 2011, Pace's defense counsel, Ali Shamsiddeen, filed a letter of withdrawal announcing that he had ceased representation of Pace, that he would not be handling the appeal, and requesting that the trial court appoint appellate counsel for Pace. On August 23, 2011, the trial court entered an order that amended the judgment of conviction, providing that

The Defendant was indicted for the crime of burglary of a dwelling house and forcibly taking contents from the house. The jury did not return a verdict of household burglary but returned a verdict of guilty of robbery. Therefore pursuant to the verdict of the jury the Defendant is charged with the crime of robbery. The remaining portions of the Order entered on June 23, 2011 will remain as stated therein.

The record does not indicate what brought the discrepancy to the trial court's attention and prompted its entry of the order amending the judgment of conviction.

¶ 19. A review of the amended judgment of conviction reveals two apparent purposes. First, it adjudicated that Pace stood convicted of robbery, not burglary. Second, with the language "pursuant to the verdict of the jury the Defendant is charged with the crime of robbery," the trial court seems, in effect, to have undertaken to amend Pace's indictment to change the charge of burglary to one of robbery, in an effort to make the charge conform to the jury's verdict. Although Pace challenges the sufficiency of the evidence supporting all of the convictions, neither he nor the State has addressed the fact that Pace was judged to have been convicted of robbery, a crime for which he had not been indicted.

¶ 20. When a defendant's substantive or fundamental rights are affected, this Court will notice "a plain error not identified or distinctly specified." M.R.A.P. 28(a)(3) ; Foster v. State , 148 So.3d 1012, 1018 (Miss. 2014). "Under the plain-error doctrine, 'there has to be a finding of error, and that error must have resulted in a manifest miscarriage of justice for reversal to occur.' " Id. We will find plain error if the trial court has deviated from a legal rule, the error is plain, clear, or obvious, and the error prejudiced the outcome of the proceedings. Id. (quoting Grayer v. State , 120 So.3d 964, 969 (Miss. 2013) ).

¶ 21. Both the federal and state constitutions require an indictment by a grand jury before a citizen can be prosecuted for a felony, absent waiver. U.S. Const. Amend. V ; Miss. Const. Art. 3 § 27 ; State v. Berryhill , 703 So.2d 250, 258 (Miss. 1997). A jury can return a verdict on the charged offense or on a lesser-included offense.

Miss. Code Ann. § 99-19-5 (Rev. 2015). This Court has recognized that "only a grand jury can advise a defendant of what he is to be charged with." Berryhill , 703 So.2d at 257 (citing Stirone v. United States , 361 U.S. 212, 218, 80 S.Ct. 270, 273-74, 4 L.Ed. 2d 252 (1960) ("The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge."). A court is not empowered to alter or amend the substance of an indictment returned by the grand jury. Berryhill , 703 So.2d at 257.

¶ 22. Pace's indictment charged him with burglary with the intent to commit larceny, and the jury was instructed on the elements of burglary with the intent to commit larceny. The crime of robbery was not alleged in the indictment, and the jury was not instructed concerning that crime. But the jury returned the following verdict: "Count I (Robbery) We, the Jury, find the Defendant, DAMION LAFREDERICK PACE, guilty as charged in Count I." According to Uniform Rule of Circuit and County Court Practice 3.10, "If a verdict is so defective that the court cannot determine from it the intent of the jury, the court shall, with proper instructions, direct the jurors to reconsider the verdict. No verdict shall be accepted until it clearly reflects the intent of the jury." URCCC 3.10. "The general rule is that the court may require the jury to clear up an indefinite and ambiguous verdict, and, '[i]ndeed, it is the duty of the court to direct the jury to reconsider their verdict when satisfied that there has been a palpable mistake.' " Anderson v. State , 231 Miss. 352, 359-60, 95 So.2d 465, 467 (1957).

¶ 23. When the jury returned a verdict of guilty of the unindicted crime of robbery, the trial court did not consider whether the verdict was ambiguous or mistaken and then determine whether to return the jury to deliberations to reconsider its verdict. Instead, the trial court found that the jury's intent had been to convict Pace of robbery; accordingly, it entered a judgment of conviction of robbery. Later, in the amended judgment of conviction, the trial court reiterated that Pace had been convicted of robbery and added that the jury's verdict had "charged" him with robbery. Because a court cannot make, alter, or substantively amend a felony indictment, and only the grand jury can return an indictment, the trial court plainly erred by finding that the petit jury's verdict had charged Pace with robbery. See Berryhill , 703 So.2d at 257. And because Pace had been indicted for burglary, not the entirely distinct crime of robbery, and robbery is not a lesser-included offense of burglary, Pace could not be convicted of robbery.

Pace's conviction of robbery, a crime for which he neither had been indicted nor had he waived indictment, was a plain, clear, and obvious error that violated his fundamental rights under the United States Constitution and the Mississippi Constitution and constituted a manifest miscarriage of justice. Therefore, we hold that Pace's purported conviction of robbery was a plain error, and we render judgment, vacating Pace's conviction of robbery.

II. WHETHER THE TRIAL COURT ERRED BY DENYING PACE'S MOTION FOR A DIRECTED VERDICT.

¶ 24. The sufficiency of the evidence is challenged with a motion for a directed verdict, a request for a peremptory instruction, or a motion for judgment notwithstanding the verdict (JNOV). McClain v. State , 625 So.2d 774, 778 (Miss. 1993). After the State rested its case, Pace moved for a directed verdict, challenging the sufficiency of the evidence. The trial court denied the motion. Pace then proceeded to present the defense case. On appeal, Pace argues that, because the State's evidence was insufficient to support a guilty verdict, the trial court erred by denying his motion for a directed verdict.

¶ 25. Pace failed to renew his motion for a directed verdict at the close of evidence or request a peremptory instruction. Moreover, he did not file a post-trial motion for JNOV. "When the defendant proceeds with his case after the state rests and the court overrules the defendant's motion for a directed verdict, the defendant has waived the appeal of that directed verdict." Holland v. State , 656 So.2d 1192, 1197 (Miss. 1995). "In the absence of a renewal of the directed verdict, a request for a peremptory instruction, or a motion for a judgment notwithstanding the verdict, [the defendant] has waived the sufficiency error on appeal." Id. Pace did not preserve his challenge to the sufficiency of the evidence for appeal because he did not renew his motion for a directed verdict at the close of evidence, request a peremptory instruction, or file a motion for JNOV. Because Pace failed to preserve this argument, it was waived.

III. WHETHER PACE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 26. Pace, with new appellate counsel, argues that he received ineffective assistance of counsel for two reasons. First, he complains of defense counsel's failure to move for a directed verdict or file a post-trial motion for JNOV or a new trial. Second, he argues that defense counsel did not object to the admission of his confession and offer the testimony of Marcus Wilson that Pace had requested an attorney during his police interview.

¶ 27. A criminal defendant has a state and federal constitutional right to the effective assistance of counsel. U.S. Const. Amend. VI ; U.S. Const. Amend. XIV ; Miss. Const. Art. 3, § 26 ; Strickland v. Washington , 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). To prove ineffective assistance of counsel, the defendant must show that (1) counsel's performance was deficient, and (2) the deficiency prejudiced the defense. Strickland , 466 U.S. at 687, 104 S.Ct. 2052. To show deficient performance, a defendant must show that counsel's performance "fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. But a strong presumption exists that counsel's performance constituted trial strategy and was "within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. Prejudice is demonstrated by a showing of "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052.

¶ 28. Ordinarily, claims of ineffective assistance of counsel are not addressed on direct appeal. Wilcher v. State , 863 So.2d 776, 825 (Miss. 2003) ("[i]t is unusual for this [C]ourt to consider a claim of ineffective assistance of counsel when the claim is made on direct appeal," because "there is usually insufficient evidence within the record to evaluate the claim"). "Where 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." Id. But if the defendant is represented by counsel who did not represent him at trial, and the facts supporting the claim are fully apparent from the appellate record, the Court may address the issue. M.R.A.P. 22(b). Because both of Pace's claims of ineffective assistance of counsel are based on facts fully apparent from the record, we proceed to review them.

A. Failure to File Post-trial Motions

¶ 29. Pace argues that trial counsel's failure to renew the motion for a directed verdict, to move for a peremptory instruction, or to file post-trial motions deprived him of the effective assistance of counsel. He claims the failure prejudiced him because it deprived the judge of the opportunity to review the weight and sufficiency of the evidence after all evidence had been presented.

¶ 30. This Court has found that a defense attorney's failure to file post-trial motions challenging the weight and sufficiency of the evidence constituted deficient performance. Holland , 656 So.2d at 1197-98. In Holland , the Court found that the error had prejudiced the defendant because the evidence had been insufficient to sustain the conviction; thus a reasonable probability existed that the trial court would have granted a motion for a JNOV. Id. at 1198. In Parker v. State , 30 So.3d 1222, 1235 (Miss. 2010), defense counsel moved for a directed verdict at the close of all evidence that preserved the defendant's sufficiency argument, but rendered deficient performance by neglecting to file a post-trial motion challenging the weight of the evidence. Because the verdict was not against the overwhelming weight of the evidence, the Court held that Parker had not shown any prejudice from the error. Id. Recently, in Giles v. State , 187 So.3d 116, 125-26 (Miss. 2016), this Court, relying on Holland , found that counsel had rendered deficient performance by failing to file post-trial JNOV and new trial motions, but that the deficiency had not prejudiced Giles because the weight and sufficiency of the evidence were such that there was no reasonable probability that either motion would have been granted.

¶ 31. As in Holland , Parker , and Giles , the failure of Pace's counsel to file post-trial motions attacking the weight and sufficiency of the evidence constituted deficient performance. There was no strategic reason for the lawyer's failure to file any post-trial motions. Nonetheless, Pace has not shown that any prejudice resulted from the failure, because, as discussed below, there is no reasonable probability that either motion would have been granted.

¶ 32. On review of the sufficiency of the evidence, "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; and where the evidence fails to meet this test it is insufficient to support a conviction."

Swanagan v. State , 229 So.3d 698, 703 (Miss. 2017) (quoting Fagan v. State , 171 So.3d 496, 503 (Miss. 2015) ). If any rational trier of fact could have found each element of the crime beyond a reasonable doubt, the Court will affirm. Swanagan , 229 So.3d at 703 (quoting Fagan , 171 So.3d at 503 ). "When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we 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." Swanagan v. State , 229 So.3d 698, 705 (Miss. 2017).

¶ 33. Pace's convictions of two counts of kidnapping and one count of extortion were based on the theory that he was an aider and abettor to the crimes. "Any person who, without lawful authority and with or without intent to secretly confine, shall forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be confined or imprisoned against his or her will" is guilty of kidnapping. Miss. Code Ann. § 97-3-53 (Rev. 2014). "A person is guilty of extortion if he purposely obtains or attempts to obtain property of another or any reward, favor, or advantage of any kind by threatening to inflict bodily injury on any person ...." Miss. Code Ann. § 97-3-82(2) (Rev. 2014). Under Mississippi Code Section 97-1-3, "[e]very person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have been previously convicted or not." Miss. Code Ann. § 97-1-3 (Rev. 2014). "Any person who is present at the commission of a criminal offense and aids, counsels, or encourages another in the commission of that offense is an 'aider and abettor' and is equally guilty with the principal offender." Hoops v. State , 681 So.2d 521, 533 (Miss. 1996). However, the defendant's mere presence when another person suggests possible future criminal activity does not create criminal liability as an aider and abettor. Clemons v. State , 482 So.2d 1102, 1106 (Miss. 1985).

¶ 34. Pace does not dispute that Marcus Wilson and Devonte Hughes committed the crimes. His argument is that the evidence was insufficient to have enabled a rational jury to conclude, beyond a reasonable doubt, that his participation amounted to more than being merely present while others suggested possible future criminal activity. Pace points out that he was never inside Goodwin's home, he did not remove Goodwin and her baby from the home at gunpoint, and he did not call Goodwin's father to extort money. However, Pace confessed to his involvement in the crimes of kidnapping and extortion. And Goodwin's testimony established that, while Pace did not commit the acts of kidnapping and extortion himself, he accompanied and encouraged Wilson and Hughes. Goodwin's testimony and Pace's confession largely corroborated each other with regard to the detailed events of the night. Therefore, no reasonable probability exists that the trial court would have granted Pace's motion for JNOV. Nor is there a reasonable probability that the trial court would have found that the evidence preponderated so heavily against the verdict that the verdict was against the overwhelming weight of the evidence. We find that Pace has not shown that trial counsel's failure to file post-trial motions violated his constitutional right to the effective assistance of counsel.

B. Failure to Challenge the Admission of the Confession and Present Witness Testimony

¶ 35. Next, Pace argues that his trial counsel rendered ineffective assistance by failing to object to the admission of his confession and present the testimony of Pace's stepfather, Marcus Wilson. Pace did not move to suppress his confession. The State sought to admit the confession during the testimony of Officer Patrick. At that point, the trial court excused the jury, and then the State presented the testimony of the two officers who had been present during the interview with Pace. They testified that Pace had waived his Miranda rights and that no threats or promises had been made to secure his confession. Both officers also testified that neither Pace nor Marcus Wilson, who had been present during the confession, had asked for an attorney. At the conclusion of the officers' testimony, defense counsel declined to present any evidence or argument, saying "We have no objection." At that point, the trial court ruled that the confession was admissible because Pace knowingly and voluntarily had waived his Miranda rights and voluntarily had given his statement.

¶ 36. On appeal, Pace argues that trial counsel was ineffective because he did not object to the admission of the confession and present the testimony of Marcus Wilson. During Marcus Wilson's direct examination by defense counsel at trial, he said that he had been present during Pace's confession, and he gave the following testimony:

Q. Okay. Was there mention of a lawyer at any time?
A. Well, Damion had said he wanted a lawyer, you know.
Q. Okay. And what happened?
A. It never-it wasn't none.
Q. Okay. Were you willing to provide a lawyer for him?
A. At the time we couldn't, sir, you know, not at the time we couldn't. You know, if it was really to do it, if I could, I would, you know.

¶ 37. In Shinstock v. State , 220 So.3d 967, 971 (Miss. 2017), the defendant argued that trial counsel had been ineffective by failing to file a motion to suppress. Because an attorney's mere failure to file a motion to suppress is not ineffective assistance, we declined to review the issue, holding that the record did not reflect ineffective assistance of counsel and the claim was more appropriately brought during post-conviction proceedings. In this case, Pace does more than merely allege that trial counsel was ineffective for failing to seek exclusion of the confession. He argues that, if trial counsel had sought exclusion of the confession, he would have been successful in that endeavor due to Marcus Wilson's testimony. Thus, he contends, he was prejudiced by trial counsel's deficiency in failing to object to the confession and present Marcus Wilson's testimony that Pace had asked for a lawyer during the police interview.

¶ 38. "Generally, decisions to make or forego certain motions fall within the ambit of trial strategy and will not constitute ineffective assistance." Crawford v. State , 218 So.3d 1142, 1161 (Miss. 2016). But "[c]ounsel may be deemed ineffective where counsel fails to move to suppress evidence obtained in violation of the accused's constitutional rights if the petitioner shows that the motion would have been meritorious and that prejudice resulted from the evidence's admission." Id. (citing Davis v. State , 743 So.2d 326, 336 (Miss.1999) ). The accused has been prejudiced if there is a reasonable probability that the outcome of the trial would have been different without the evidence. Evans v. Davis , 875 F.3d 210, 218 (5th Cir. 2017). Pace contends that his presentation of Marcus Wilson's testimony at a suppression hearing would have resulted in the exclusion of the confession.

¶ 39. If the accused requests counsel, "the interrogation must cease until an attorney is present." Edwards v. Arizona , 451 U.S. 477, 485, 101 S.Ct. 1880, 1885, 68 L.Ed. 2d 378 (1981). Before a confession is admitted, the State has the burden to prove beyond a reasonable doubt that Miranda warnings were given and that the accused gave a knowing, voluntary, and intelligent waiver. Chamberlin v. State , 989 So.2d 320, 332 (Miss. 2008). The determination of whether a confession is admissible is a factual inquiry made by the trial judge from the totality of the circumstances. Kircher v. State , 753 So.2d 1017, 1023 (Miss. 1999).

¶ 40. Because Officer Patrick and Officer Anderson testified at the admissibility hearing that neither Pace nor Marcus Wilson had asked for an attorney at any time, their testimony supported the trial court's finding that Pace's rights waiver was knowing, intelligent, and voluntary. If Marcus Wilson had testified, the trial court would have had before it contrary testimony indicating that Pace had invoked his right to counsel. But in light of the officers' testimony that neither Pace nor his stepfather ever asked for an attorney, the trial court would have been free to have rejected Marcus Wilson's testimony even if it had been presented. Because the trial court could have relied on or rejected Marcus Wilson's testimony, Pace has not shown that the trial court would have excluded the confession but for counsel's alleged error. Therefore, Pace has not shown that trial counsel rendered ineffective assistance of counsel by failing to object to the admission of the confession and present Marcus Wilson's testimony.

CONCLUSION

¶ 41. We hold that, because Pace was not indicted for robbery and the crime of robbery is not a lesser-included offense of the indicted crime of burglary, the trial court's entry of a judgment of conviction of robbery was a plain error that requires vacation of the robbery conviction and sentence. But we affirm his convictions of two counts of kidnapping and one count of extortion. Pace's argument that the trial court erred by denying his motion for a directed verdict is procedurally barred. And his claims of ineffective assistance of counsel are without merit; he has not shown he was prejudiced by counsel's failure to file post-trial motions, and he cannot show that his confession would have been excluded had trial counsel objected to its admission and called his stepfather as a witness. We affirm in part and we vacate and render in part the judgment of the Circuit Court of Scott County.

¶ 42. AFFIRMED IN PART; VACATED AND RENDERED IN PART.

WALLER, C.J., RANDOLPH, P.J., KING, COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      In accordance with this Court's policy, the name of the minor victim has been changed to protect her identity.

      Goodwin testified that she and the baby's father had married after the events at issue and before Pace's trial.

      Count One charged that Pace "did willfully, unlawfully, feloniously and burglariously break and enter a certain building located in Scott County, Mississippi, commonly known as, called and being a dwelling house of the property of Jessica Goodwin, with the willful, unlawful, felonious and burglarious intent to take, steal and carry away certain goods, wares and chattels located in said dwelling house and being the personal property of Jessica Goodwin and kept therein for her use and deposit, contrary to and in violation of Section 97-17-23, Miss. Code Ann. (1972), as amended[.]"

      No order from the trial court allowing Attorney Shamsiddeen to withdraw appears in the record. Mr. Shamsiddeen did not file post-trial motions or a notice of appeal. Pace, pro se , initiated these appellate proceedings by filing a late notice of appeal on November 20, 2015. After Pace responded to a show-cause notice issued by this Court, we suspended Mississippi Rule of Appellate Procedure 4 and allowed Pace's untimely appeal to proceed.

      Rule 3.10 of the Uniform Rules of Circuit and County Court Practice was in effect at the time of Pace's trial. Jury verdicts in criminal cases now are governed by Rule 24 of the Mississippi Rules of Criminal Procedure, which became effective July 1, 2017.

      The crimes of robbery and burglary have different elements. According to the robbery statute, "Every person who shall feloniously take the personal property of another, in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery." Miss. Code Ann. § 97-3-73 (Rev. 2014). And pursuant to the applicable burglary statute, "Every person who shall be convicted of breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with intent to commit some crime therein, shall be punished by commitment to the custody of the Department of Corrections for not less than three (3) years nor more than twenty-five (25) years." Miss. Code Ann. § 97-17-23(1) (Rev. 2014).

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