text:
    James Lee THOMAS a/k/a James L. Thomas, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00597-COA
    Court of Appeals of Mississippi.
    July 31, 2018
    ATTORNEY FOR APPELLANT: JAMES LEE THOMAS (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER, JACKSON
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. In June 2008, James L. Thomas pleaded guilty to armed robbery. Thomas was sentenced to serve twenty years, with eight years to be served in the custody of the Mississippi Department of Corrections (MDOC), and nine years suspended. Thomas's sentence was also conditioned on him successfully completing three years on post-release supervision (PRS); successfully completing the circuit court's community service program; and paying court costs and restitution totaling $4,699.00.

¶ 2. Thomas was released on PRS on February 19, 2015. In July 2016, the Circuit Court of Jones County (Second Judicial District) found that Thomas had committed two technical violations of his PRS conditions. It ordered that Thomas's PRS would be extended for an additional two years beyond the original PRS expiration date, and that Thomas should be transported to the Pascagoula Restitution Center where he would remain until all court costs and restitution were paid.

¶ 3. Thomas was discharged from the restitution center on August 26, 2016. In September 2016, the State petitioned to revoke Thomas's probation due to several alleged violations of certain conditions of his PRS. A revocation hearing was held, and the circuit court found that Thomas had committed three technical violations of his PRS conditions. The circuit court revoked Thomas's PRS and ordered Thomas to serve his nine-year suspended sentence. The circuit court summarily dismissed Thomas's subsequently filed motion for postconviction relief (PCR).

¶ 4. On appeal, Thomas asserts, pro se, that his PRS was unlawfully revoked because (i) his due process rights were violated during his September 9, 2016 revocation hearing; (ii) the circuit court erred in reinstating Thomas's suspended sentence based upon three technical violations because the court's actions were not within the guidelines of Mississippi Code Annotated section 47-7-37 (Rev. 2015); and (iii) his original sentence was illegal because he had not signed the acknowledgment on page four of the June 6, 2008 sentencing order, and thus the circuit court was without authority to reinstate his suspended sentence. We find no violation of Thomas's due process rights at the September 9, 2016 revocation hearing, and we further find that the circuit court was within its authority to impose Thomas's suspended sentence. We therefore affirm the circuit court's order denying Thomas's PCR motion.

FACTS AND PROCEDURAL HISTORY

¶ 5. On June 3, 2008, Thomas filed a petition to plead guilty to the charge of armed robbery. As part of Thomas's plea agreement, the State dropped an aggravated assault charge against Thomas, and a separate felony-malicious-mischief charge (Cause No. 207-269-KR2) against him. Thomas, however, was still required to pay $4,023.50 in restitution to Veronica McCollum for her car relating to the felony-malicious-mischief charge.

¶ 6. Thomas's guilty-plea hearing took place on June 6, 2008. After accepting Thomas's guilty plea, the circuit court sentenced Thomas to serve twenty years, with eight years to be served in the full-time custody of MDOC, and nine years suspended, conditioned upon his successful completion of three years on PRS and his successful completion of the circuit court's community service program. Thomas was also required to pay court costs in the amount of $250.50; $425 restitution to the victim of the armed robbery; and, as noted above, $4,023.50 restitution to Veronica McCollum relating to the separate felony-malicious-mischief charge, totaling $4,699.00. The first installment on these payments was due within thirty days of Thomas being placed on PRS, and each installment was to be paid at the rate of $135 per month until paid in full. The sentencing order was entered June 6, 2008.

¶ 7. Thomas was released on PRS on February 19, 2015. The record indicates that on July 8, 2016, the circuit court issued a summons and order to show cause as to why Thomas's suspended sentence should not be revoked. The revocation hearing was set for July 26, 2016. The show-cause order was based upon Thomas's failure to pay any of his installments on his court costs and restitution obligations; his failure to perform community service as ordered; and his failure to pay community-service supervision fees. Thomas was served with the summons and show-cause order on July 17, 2016.

¶ 8. The show-cause hearing was held on July 26 to allow Thomas to appear in open court so the circuit court could determine whether Thomas was in compliance with the PRS conditions of the June 6, 2008 sentencing order. At the hearing, the circuit court heard testimony from the Director of the Circuit Court Community Service Program, Jerald Parrish, who stated that Thomas had only participated in community service five times in 2016; failed to participate in community service since May 14, 2016; and had a supervision-fee arrearage of $600, with a total supervision-fee balance of $1,250. The record also contains a printout from the Jones County Circuit Clerk showing no payments had been made on Thomas's restitution or court costs obligations. The circuit court had the printout entered into evidence at the July 26 hearing.

¶ 9. On July 28, 2016, the circuit court issued an order modifying its original sentencing order. Based on the evidence before it, the circuit court found that Thomas had committed his first and second technical violations of the conditions of his PRS, namely (1) failure to make payments towards court costs and restitution as required; and (2) failure to report to community service and pay supervision fees as required. The circuit court ordered that Thomas's PRS would be extended for an additional two years beyond the original PRS expiration date, and that Thomas should be transported to the Pascagoula Restitution Center where he would remain until all court costs and restitution were paid.

¶ 10. Less than a month later, on August 26, 2016, Thomas was discharged from the restitution center. On September 7, 2016, Donald C. Rogers, MDOC Probation and Parole Agent, filed an affidavit related to Thomas's conduct while on PRS, which set forth the following PRS violations:

Condition b) The Defendant shall obey all orders of the Court and the Probation/Parole Agent.... Defendant was order[ed] on July 28[,] 2016 [to] be transported to the Pascagoula Restitution Center to stay until [he] completed [his court costs and restitution] payment[s]. The Defendant has failed to complete the Restitution Center by being kicked out due to failing to abide by the rules and regulations (failed to keep a job; testing positive for THC; and encouraging other[s] to refuse work, or participating in work stoppage on 8/26/16).
Condition h) The Defendant shall [p]ay court costs, community service fees, fines and restitution.... Defendant has made no payments towards the court and owes $4,699.00 . The Defendant has failed to pay community service fees and is in arrears of $1,250.00 .
Condition k) The Defendant shall participate in the District 18 Community Service Program. The Defendant has failed to participate in the program.

¶ 11. Based on the affidavit of Agent Rogers, the circuit court judge issued a warrant for Thomas. A hearing was held before the circuit court on September 9, 2016, to determine whether Thomas violated the terms of his PRS. Thomas was present and represented by counsel.

¶ 12. MDOC Officer Carrol Windham testified at the hearing as to the violations set forth in Agent Rogers's affidavit, including Thomas's discharge from the Pascagoula Restitution Center on August 26, 2016; his failure to make payments toward court costs and restitution as required; and his failure to participate in community service and pay participation fees as required. Regarding Thomas's failure to pay his installments on the court costs and restitution, the circuit court also examined a printout from the circuit clerk's office showing no payments had been made as of September 9, 2016, and entered that record into evidence.

¶ 13. Officer Shirlean Anderson, an employee of the Pascagoula Restitution Center, testified at the hearing about Thomas's discharge from the center. She described Thomas threatening bodily harm to her when she asked him to pick up his clothes off the floor. Officer Anderson also testified about Thomas's work history, namely that he was working for a landscaping company, and when she came back from two days off of work, Thomas was no longer working at the landscaping job. She further testified that Thomas and three others were then sent to work at Boggy Vineyard, and "the guy [from Boggy Vineyard] called and said come pick them up, they didn't want to work anymore."

¶ 14. Mr. Jerald Parrish testified about Thomas's record and performance of his community service obligations for 2016 up until July 28, 2016, when Thomas was sent to the restitution center. In that time period, Thomas had twenty-eight opportunities to report and reported only five times.

¶ 15. Thomas testified on his own behalf that he never threatened Officer Anderson; he had not lost his jobs for wrongdoing; and he had receipts and check stubs showing that he had made payments while he was at the restitution center but that they were at his house. Thomas testified that if he could go back to work, he could pay his fines. The trial court then asked Officer Anderson whether the restitution center would take Thomas back. She replied, "No, sir."

¶ 16. At the close of the hearing, the circuit court found that based on the proof before it, Thomas had committed three technical violations: (1) failure to participate in community service as required; (2) failure to pay his court costs and restitution as required; and (3) discharge from the restitution center. The circuit court judge stated that he would be happy to review any receipts Thomas had that showed he had made payments while in the restitution center, and that he would modify his order if it changed anything. The circuit court judge further stated that he would need these receipts "pretty soon"; and he explained that even if Thomas produced receipts, if Thomas had not paid enough to become compliant with the sentencing order, the court would still find him in violation.

¶ 17. The circuit court issued its PRS revocation and modification order on September 12, 2016, setting forth the testimony and evidence presented at the hearing, and finding that Thomas committed the above-stated three technical violations. The circuit court ordered that Thomas's nine-year sentence previously suspended was revoked, and further ordered that Thomas was to serve the remaining nine years of his sentence in the custody of MDOC.

¶ 18. Thomas served his PCR motion on March 20, 2017 (filed April 10, 2017), asserting that his PRS was unlawfully revoked because (1) he was not given a preliminary hearing before his final revocation hearing; (2) he was denied due process at his final revocation hearing; and (3) he was not sentenced within the guidelines of section 47-7-37.

¶ 19. By order entered April 10, 2017, the circuit court summarily dismissed Thomas's PCR motion. The circuit court first observed that Thomas's judgment of conviction on his guilty plea for armed robbery was entered on June 6, 2008, and thus Thomas's PCR motion, served on March 20, 2017, was time-barred under the limitations provision of the Uniform Post Conviction Collateral Relief Act (UPCCRA), Mississippi Code Annotated section 99-39-5(2) (Rev. 2015). Addressing potential exceptions to the UPCCRA's time-bar, the circuit court found that Thomas's PRS was not unlawfully revoked because the court sentenced him to serve his suspended sentence after determining that Thomas had three technical violations of conditions of his probation, which constitutes a sentence within the guidelines of section 47-7-37(5)(a). The circuit court further found that none of the other exceptions to the UPCCRA's time-bar were applicable to Thomas's PCR motion.

¶ 20. Thomas filed a motion for reconsideration of the circuit court's order in which he again mentioned he had receipts and W-2 forms that showed he had worked or paid on his restitution and court fees. No such information was attached to the motion, however, and there is no indication in the record that any receipts or check stubs were provided to the circuit court. The circuit court denied Thomas's motion for reconsideration on April 24, 2017.

¶ 21. Thomas appealed, asserting, pro se, that (1) the circuit court erred by failing to conduct a preliminary hearing on his PRS revocation; (2) he was denied due process at his final revocation hearing because the evidence against him supporting revocation was not disclosed, and he received no written statement of the circuit court's reasons for revocation; and (3) the circuit court erred in reinstating Thomas's suspended sentence because it was not within the guidelines of section 47-7-37. Thomas filed a supplemental memorandum of law in which he asserted that his original sentence was illegal because he had not signed the acknowledgment on page four of the June 6, 2008 sentencing order, and thus the circuit court was without authority to reinstate his suspended sentence under the September 12, 2016 revocation order.

STANDARD OF REVIEW

¶ 22. "When reviewing a circuit court's denial or dismissal of a PCR motion, we will reverse the judgment of the circuit court only if its factual findings are clearly erroneous; however, we review the circuit court's legal conclusions under a de novo standard of review." Berry v. State , 230 So.3d 360, 362 (¶ 3) (Miss. Ct. App. 2017).

DISCUSSION

¶ 23. In its order dismissing Thomas's PCR motion, the circuit court found that the motion, on its face, was time-barred under the three-year limitation provision of the UPCCRA because Thomas's judgment of conviction on his armed robbery charge was entered June 8, 2008, and Thomas's PCR motion was not served until March 20, 2017. See Miss. Code Ann. § 99-39-5(2) ("A motion for relief under this article shall be made ... in case of a guilty plea, within three (3) years after entry of the judgment of conviction."). The circuit court also acknowledged that the UPCCRA provides for a number of exceptions to the time-bar, including, in relevant part, those cases in which the movant claims that "his probation, parole or conditional release [was] unlawfully revoked." Miss. Code Ann. § 99-39-5(1)(h). For the reasons set forth below, we affirm the circuit court's determination that Thomas's PRS was not unlawfully revoked, and we further find that Thomas has not shown any other exception to the UPCCRA's time-bar that warrants reversal of the circuit court's summary denial of his PCR motion.

I. Due Process Requirements

¶ 24. Thomas, as the PCR movant, has the burden of demonstrating that his claims are not time-barred because an exception applies. See McComb v. State , 135 So.3d 928, 932 (¶ 10) (Miss. Ct. App. 2014). In his first assignment of error, Thomas alleges that his suspended sentence was unlawfully revoked because his due process rights were violated at his revocation hearing. Thomas alleges the following due process violations: (1) he did not receive a preliminary revocation hearing; and (2) at his formal revocation hearing, two of the six minimum due-process conditions required under Gagnon v. Scarpelli , 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), were not met; namely, condition (b) (disclosure of the evidence against him) and condition (f) (a written statement by the factfinder of the evidence relied upon and reasons for revoking his PRS).

¶ 25. We acknowledge that under Gagnon , a probationer faced with revocation of his probation is entitled to (1) a preliminary hearing to determine whether probable cause existed to believe that he violated condition[s] of his probation; and (2) a final revocation hearing. Presley v. State , 48 So.3d 526, 529 (¶ 11) (Miss. 2010) (citing Gagnon , 411 U.S. at 786, 93 S.Ct. 1756 ). A final revocation hearing must include the following minimum due-process requirements:

(a) written notice of the claimed violations of probation or parole; (b) disclosure to the probationer or parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses unless the hearing officer specifically finds good cause for not allowing confrontation; (e) a neutral and detached hearing body such as a parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinder as to the evidence relied on and reasons for revoking probation or parole.

Id. (quoting Gagnon , 411 U.S. at 786, 93 S.Ct. 1756 ) (internal quotation marks omitted).

¶ 26. Regarding the lack of a preliminary hearing, Thomas did not raise this issue at his formal revocation hearing, and thus he is procedurally barred from raising it now. Id. at 528 (¶ 9).

¶ 27. Procedural bar notwithstanding, we also reject Thomas's argument on the merits. Harmless-error standard applies "to a PCR [movant's] claim that failure to afford a preliminary revocation hearing before final revocation violated his due-process rights." Robertson v. State , 169 So.3d 910, 913 (¶ 9) (Miss. Ct. App. 2014) (citing Presley , 48 So.3d at 529-30 (¶¶ 13-14) ). In particular, if Thomas cannot show he was prejudiced due to the lack of a preliminary hearing, and a formal revocation hearing was held that met due process requirements, then the lack of a preliminary revocation hearing is harmless error. Presley , 48 So.3d at 530 (¶¶ 14-16).

¶ 28. In this regard, Thomas asserts, without citing specific, evidence-based examples, that his due process rights were violated at his formal revocation hearing because conditions (b) and (f) required under Gagnon were not met. A review of the record shows that this was not the case.

¶ 29. Condition (b) requires "disclosure to [Thomas] of [the] evidence against him." Gagnon , 411 U.S. at 786, 93 S.Ct. 1756. The record shows ample evidence that this condition was met. Thomas was present at the September 9, 2016 revocation hearing and was represented by counsel. The State presented the evidence against him through the testimony of Officer Carrol Windham (testifying regarding the probation violations set forth in Agent Rogers's affidavit, including non-payment of restitution and court costs); Officer Shirlean Anderson (testifying about Thomas's termination from the restitution center); and Mr. Jerald Parrish (testifying about Thomas's record and performance of his community service obligations). Thomas's counsel was given the opportunity to cross-examine these witnesses and declined that opportunity.

¶ 30. Thomas was also given the opportunity to be heard, and did, in fact, testify at the hearing. Thomas testified that he had receipts and check stubs showing he had made some payments on his restitution and court-cost obligations, but did not have them with him. The circuit court told Thomas and his counsel that he would be happy to review any receipts Thomas had that showed he had made payments while in the restitution center and would modify his order if it changed anything. The circuit court also made clear he would need those receipts soon. As noted above, there is no indication in the record that any receipts or check stubs were timely provided to the circuit court. Thomas's counsel was given the opportunity to call witnesses or submit additional evidence on Thomas's behalf, and declined to do so. In short, the record plainly shows that the evidence against Thomas supporting his PRS violations was disclosed to him and condition (b) under Gagnon was met.

¶ 31. Thomas also asserts that condition (f) under Gagnon was not met, namely, the requirement that the circuit court provide him with "a written statement ... [of] the evidence relied on and reasons for revoking [Thomas's PRS]." Id. at 786, 93 S.Ct. 1756. Our review of the record, however, shows that this condition was fully met. The circuit court judge presiding over the hearing heard the evidence and argument of counsel, stated on the record the basis for his revocation ruling, and also detailed the basis for his determination in his September 12, 2016 revocation and modification order.

¶ 32. The Mississippi Supreme Court has made clear that " 'merely asserting a constitutional-right violation is insufficient to overcome the procedural bars.' " Fluker v. State, 170 So.3d 471, 475 (¶ 11) (Miss. 2015) (quoting Means v. State , 43 So.3d 438, 442 (¶ 12) (Miss. 2010) ). Rather, " '[t]here must at least appear to be some basis for the truth of the [petitioner's] claim before the procedural bar will be waived.' " Id. Based upon our review of the record and the applicable law, we find Thomas's PRS was not unlawfully revoked because he was afforded the minimum due process requirements to which he was entitled at his revocation hearing. See Morgan v. State , 995 So.2d 787, 790 (¶ 8) (Miss. Ct. App. 2008). Further, Thomas has failed to show any prejudice resulting from the lack of a preliminary hearing. Accordingly, we find that Thomas's assignment of error on due process grounds is without merit.

II. Unsigned Acknowledgment to the Original Armed Robbery Sentencing Order

¶ 33. Thomas asserts that his original sentence for armed robbery was illegal because he did not sign the acknowledgment on page four of the June 6, 2008 sentencing order. From this Thomas argues that because that sentence was "illegal," the circuit court was not authorized to reinstate his suspended sentence in its September 12, 2016 revocation order. Thomas did not raise this point before the circuit court. He therefore waived this issue and may not raise it on appeal. Fluker v. State , 17 So.3d 181, 183 (¶ 5) (Miss. Ct. App. 2009) ("[A] defendant who fails to raise an issue in his motion for post-conviction relief before the trial court may not raise that issue for the first time on appeal.").

¶ 34. Even if Thomas had raised this issue in his PCR motion, it relates to his original sentence for armed robbery. His judgment of conviction on that charge was entered June 6, 2008, and thus this issue would be time-barred under section 99-39-5(2) of the UPCCRA unless an exception applies. We recognize that "errors affecting fundamental rights are excepted from the [UPCCRA's] procedural bars," Rowland v. State , 42 So.3d 503, 507 (¶ 9) (Miss. 2010), including "the right to be free from an illegal sentence." See Salter v. State , 184 So.3d 944, 950 (¶ 22) (Miss. Ct. App. 2015). As addressed above, however, Thomas cannot overcome the procedural time-bar by "merely asserting a constitutional-right violation." Fluker , 170 So.3d at 475 (¶ 11) ; see McCoy v. State , 230 So.3d 1090, 1094 (¶ 9) (Miss. Ct. App. 2017). Moreover, Thomas, as the movant, "bears the burden of providing authority and support for his assignments of error, and if he does not provide such support ..., this Court is under no duty to consider the claim." Simmons v. State , 220 So.3d 1010, 1013 (¶ 14) (Miss. Ct. App. 2017) (citing Hoops v. State , 681 So.2d 521, 526 (Miss. 1996) ).

¶ 35. In this case, Thomas merely asserts that his failure to sign the acknowledgment on page four of the sentencing order constitutes an illegal sentence and that reinstatement of his suspended sentence under the original sentencing order was likewise illegal. Thomas provides no legal authority or any other basis in support of this proposition; nor does this assertion comport with the evidence contained in the record. Instead, the record indicates that with the assistance of counsel, Thomas completed a "Petition to Enter Plea of Guilty" as to the armed robbery charge against him, and he signed and acknowledged his plea petition before a notary. In his plea petition, Thomas acknowledged that he understood his constitutional rights as set out in that petition; he understood that he voluntarily waived those rights by entering a guilty plea; and he understood the possible sentence that could be imposed. Thomas also separately signed Exhibit 1 to his plea petition, which detailed the court costs, restitution amounts, and community service fees he would be obligated to pay; and he also separately signed his Community Service Participation Order and Agreement, which details his community service obligations. This agreement clearly provides: "I, the undersigned defendant, certify I have read and that I agree to and understand, this ORDER AND AGREEMENT, which will be a part of my Sentence Order."

¶ 36. Additionally, the plea hearing transcript contained in the record indicates that Thomas was represented by counsel at his plea hearing; he took the stand at that hearing, and confirmed he could read and write and had an eleventh grade education. The circuit court also ascertained at the plea hearing that Thomas knowingly and voluntarily waived his constitutional rights as stated in his plea petition, and voluntarily and knowingly entered his guilty plea to the armed robbery charge. Though the sentencing order was not acknowledged by Thomas, his counsel signed the order and "agreed [to] and approved" its contents.

¶ 37. In short, Thomas provides no legal or evidentiary support beyond his own assertions for his argument that his failure to sign the acknowledgment of the June 6, 2008 sentencing order constitutes an illegal sentence. We therefore find no merit to this argument. Further, because we find that Thomas's original sentence was not "illegal," we find that there is no merit in Thomas's additional assertion that the circuit court erred in reinstating his original sentence in its September 12, 2016 revocation order.

III. Sentencing Violation Under Section 47-7-37

¶ 38. Thomas asserts that under Walker v. State , 230 So.3d 709, 715 (¶ 19) (Miss. Ct. App. 2016) ( Walker I ), the circuit court erred in reinstating his suspended sentence based upon its treatment of each of the technical violations of his PRS conditions as three separate technical violations for purposes of imposing the guidelines of section 47-7-37(5). Section 47-7-37(5) provides, in relevant part, as follows:

Within twenty-one (21) days of arrest and detention by warrant as herein provided, the court shall cause the probationer to be brought before it and may continue or revoke all or any part of the probation or the suspension of sentence. If the court revokes probation for a technical violation, the court shall impose a period of imprisonment to be served in either a technical violation center or a restitution center not to exceed ninety (90) days for the first technical violation and not to exceed one hundred twenty (120) days for the second technical violation. For the third technical violation , the court may impose a period of imprisonment to be served in either a technical violation center or a restitution center for up to one hundred eighty (180) days or the court may impose the remainder of the suspended portion of the sentence . For the fourth and any subsequent technical violation, the court may impose up to the remainder of the suspended portion of the sentence.

(Emphasis added). A "[t]echnical violation" is defined as "an act or omission by the probationer that violates a condition or conditions of probation placed on the probationer by the court or the probation officer." Miss. Code Ann. § 47-7-2(q) (Rev. 2015).

¶ 39. Thomas is correct that in applying the guidelines under section 47-7-37(5), we held in Walker I that Walker's first revocation order, based upon multiple technical violations, constituted Walker's first technical violation of his probation, and thus the Court held that Walker should not have been sentenced to more than ninety days in a technical violation or restitution center. Walker I , 230 So.3d at 715 (¶ 19).

¶ 40. Thomas ignores, however, that not long after Walker I was decided, we again addressed how to interpret a "technical violation" in the context of section 47-7-37(5) in Cobbert v. State , 223 So.3d 822 (Miss. Ct. App. 2017). In Cobbert , we determined that the proper interpretation requires a finding of each separate PRS violation to be counted as a separate technical violation. Id. at 824-25 (¶¶ 6-7). We specifically acknowledged that "the conclusion in Walker [I ] is contrary to the plain language of the statute and should be overruled." Id. at 826 (¶ 13).

¶ 41. Thomas also ignores that on petition for writ of certiorari, the Mississippi Supreme Court reversed Walker I , in pertinent part, based on our decision in Cobbert . In Walker v. State , 230 So.3d 703 (Miss. 2017) ( Walker II ), the Mississippi Supreme Court reversed the Court of Appeals, holding that the circuit court was authorized to impose the remainder of Walker's suspended sentence based upon its determination that Walker had committed three technical violations of his probation. Id. at 705-06 (¶¶ 10-13) (holding that section 47-7-37(5)"requires a finding of each separate violation of parole to be a separate and distinct technical violation").

¶ 42. Based upon these authorities, we find no merit in Thomas's assignment of error on this point because it is based upon law that is no longer valid. The circuit court properly determined that Thomas violated three conditions of his PRS as set forth in the June 6, 2008 sentencing order, as follows: failure to make payments toward court costs and restitution as required under condition (h); termination from the Pascagoula Restitution Center on August 26, 2016, in violation of condition (b); and failure to participate in community service and pay supervision fees as required under conditions (k) and (h), respectively. Accordingly, the circuit court correctly determined that Thomas had three technical violations and was authorized to reinstate Thomas's suspended sentence under section 47-7-37(5)(a).

IV. Two Points Raised Only in the "Summary of Argument" Section of Thomas's Appellant's Brief

¶ 43. In the "Summary of the Argument" portion of his appellant's brief, Thomas lists two points, as follows:

III. The trial court erred when it did not consider that Thomas['s] right to effective assistance of counsel was not rendered by an attorney, and the performance was deficient to say the least.
IV. The trial court erred in not seeing the dismissed charge and fine for Cause No. 207-269-KR2 [was] to be dismissed as part of the plea. See Exhibit (B) of sentence order....

Thomas did not raise either of these issues in his PCR motion. Thomas therefore waived these issues and may not raise them on appeal. Fluker , 17 So.3d at 183 (¶ 5). Additionally, Thomas bears the burden of proving these assertions. He fails to cite to any legal authorities or evidence in the record to support them. As such, we are under no duty to consider these issues. See Simmons , 220 So.3d at 1013 (¶ 14).

¶ 44. Even if we did consider them, both assertions fail on the merits. As to point III, to prove ineffective assistance of counsel, Thomas would need to show that "(1) his attorney's performance was deficient, and (2) this deficiency deprived him of a fair trial." Vitela v. State , 183 So.3d 104, 107 (¶ 13) (Miss. Ct. App. 2015) ; see Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Thomas has made no showing at all as to either factor.

¶ 45. Regarding point IV, Thomas asserts that the circuit court erred in failing to see that the fine (i.e., the $4,023.50 restitution payment to Veronica McCollum) associated with the felony-malicious-mischief charge under Cause No. 2007-269-KR2 was allegedly dismissed as part of his plea. A review of the record shows that this assertion is simply incorrect. Though the felony-malicious-mischief charge was dropped as part of his plea agreement, he was not relieved of his restitution obligations. Thomas's own plea petition, which he completed and signed, shows that Thomas was still obligated to make restitution in the amount of $4,023.50 to Veronica McCullum relating to this charge. Indeed, Thomas signed the "Exhibit to Plea Petition" which specifically provides that "Defendant [Thomas] will pay restitution of $4023.50 to Veronica McCullum." Thomas was also present at his plea hearing where his counsel and counsel for the State confirmed that his aggravated assault and felony-malicious-mischief charges were to be dismissed, with the restitution relating to the felony-malicious-mischief charge to be included in Thomas's plea. Finally, Thomas's restitution obligations were clearly set out in the June 6, 2008 sentencing order, indicating that he owed 1st Avenue Curb Store $425.00 in restitution for the armed robbery, and that he owed Veronica McCullum $4,023.50 in restitution relating to Cause No. 2007-269-KR2 (the felony-malicious-mischief charge).

¶ 46. For the reasons addressed, we reject, on both procedural and substantive grounds, the two points that were raised by Thomas only in his "Summary of the Argument" section of his appellant's brief.

¶ 47. AFFIRMED.

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

      Specifically, Officer Anderson testified that she told Thomas to get his clothes off the floor. Thomas refused. She said that she then told Thomas to pick up the clothes, and he told her that he was going to bust her in the head.

      The circuit court judge stated on the record that he had heard no evidence supporting two allegations listed in Agent Rogers' affidavit in support of a violation of condition b, testing positive for THC, and Thomas participating in a work stoppage. The circuit court dismissed those allegations.

      See Miss. Code Ann. § 99-39-5(2) (providing that "[a] motion for relief under this article shall be made ... in case of a guilty plea, within three (3) years after entry of the judgment of conviction").

      See Miss. Code Ann. § 99-39-5(1)(h) (providing that an exception to the time-bar under the UPCCRA includes cases in which the movant claims that "his probation, parole or conditional release [was] unlawfully revoked").

      Thomas supplemented the appellate record on March 29, 2018 (over a year and a half after his September 9, 2016 revocation hearing), and again on May 1, 2018, with a receipt from the Jones County Circuit Clerk dated October 19, 2017, showing Thomas had paid $250 in court fees, $219.38 in restitution, and owed a balance of $4,229.12. Supplementing the appellate record with this receipt does not comply with the circuit court's request at the September 9, 2016 revocation hearing that Thomas and his counsel provide the circuit court with any receipts "soon" after the hearing. Further, the receipt shows a total payment of only $469.88. By the September 9, 2016 revocation hearing, Thomas owed $2,430 in court costs and restitution under the terms of the sentencing order. As noted above, the circuit court explained to Thomas at the hearing that even if he produced receipts, if Thomas had not paid enough to become compliant with the sentencing order, the court would still find him in violation. The payment of $469.88 does not put Thomas in compliance with his PRS conditions and does not affect the validity of the circuit court's determination that Thomas's non-payment of court costs and restitution constituted a technical violation of condition (h) of his PRS.

      Regarding Thomas's failure to pay his installments on the court costs and restitution, the circuit court also examined the printout from the circuit clerk's office showing no payments had been made and entered that record into evidence.

      Cobbert was handed down June 27, 2017, before Thomas filed his opening appellant's brief on August 18, 2017, and five months before Thomas filed his supplemental appellant's brief on November 21, 2017, in which he again relied on Walker I in arguing that the circuit court improperly reinstated his suspended sentence based upon three technical violations.

      Walker II was handed down on September 21, 2017, a month before Thomas filed his supplemental appellant's brief on November 21, 2017, in which he relied upon Walker I .

      Before his September 9, 2016 revocation hearing, Thomas had, in fact, already been found to have committed two technical violations. This was determined by the circuit court in its July 28, 2016 order entered after Thomas's July 26 show-cause hearing on his PRS violations occurring between February 19, 2015 (when Thomas was released on PRS) and July 26, 2016. At that time he was found in violation of condition (h) due to his failure to make payments toward court costs and restitution, and condition (k) due to his failure to report for community service. Particularly in light of these two technical violations during that time period, the circuit court was well within its authority to revoke Thomas's PRS status and reinstate his suspended sentence in its September 12, 2016 revocation order. See Cobbert , 223 So.3d at 826 (¶¶ 12-15) (reasoning that defendant had committed four separate violations of conditions of his PRS where it was established at defendant's first revocation hearing that he had committed three technical violations (including failure to report to his parole officer), and it was established at his second revocation hearing that he had once again failed to report to his parole officer, for a total of four violations).

      Thomas also notes in point IV that page four of the sentencing order was never signed. We addressed that issue separately above, as Thomas raised it in his supplemental memorandum of law filed November 21, 2017.

      Thomas's ineffective-counsel claim is also time-barred. Although it involves fundamental constitutional rights, it is not excepted from the three-year limitations provision of the UPCCRA. See Jones v. State , 174 So.3d 902, 907 (¶ 12) (Miss. Ct. App. 2015).


source: Caselaw Access Project

author: FAIR, J., FOR THE COURT:

license: Public Domain

text:
    Victor BAILEY a/k/a Victor Lee Bailey, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00757-COA
    Court of Appeals of Mississippi.
    August 7, 2018
    ATTORNEY FOR APPELLANT: VICTOR BAILEY (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART, JACKSON
    BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. In 2007, Victor Bailey pled guilty to two counts of armed robbery and was sentenced to fifteen years on each count, to be served concurrently. Nearly eight years later, he filed a motion for reconsideration of his sentence. Bailey sought a reduction of his sentence based on his exemplary behavior, including earning a general education diploma, completing a barber course and receiving a barber license, and completing courses in anger management and financial literacy.

¶ 2. The circuit court treated the motion as a motion for post-conviction relief and found it time-barred. The court further held that it lacked jurisdiction to reduce Bailey's sentences since the sentencing term had expired. "A reduction or reconsideration of a sentence by a judge must occur prior to the expiration of the sentencing term." Carr v. State , 881 So.2d 261, 264 (¶ 8) (Miss. Ct. App. 2003) (citing Harrigill v. State , 403 So.2d 867, 868-69 (Miss. 1981) ). "The power to reduce the sentence after the expiration of the term is vested in [the legislature]. The trial judge was correct to deny the request." Robinson v. State , 849 So.2d 157 (¶ 4) (Miss. Ct. App. 2003).

¶ 3. On appeal, Bailey abandoned his quest for reconsideration and reduction of his sentence. Instead, for the first time on appeal, he claims that Mississippi Code Annotated section 47-7-3(1)(c)(i) (Rev. 2015) entitles him to parole eligibility because he has served the required ten years.

¶ 4. Since Bailey failed to raise this issue before the circuit court, he is barred from doing so on appeal. Even if this claim was properly before this Court, Bailey would still be ineligible for parole. Section 47-7-3(1)(c)(i) only applies to armed-robbery convictions that occurred between January 1, 1977, and September 30, 1994. Bailey's conviction and sentencing took place in 2007. Armed-robbery convictions that occurred between October 1, 1994, and July 1, 2014, are governed by section 47-7-3(1)(c)(ii). Accordingly, we affirm the judgment of the circuit court.

¶ 5. AFFIRMED.

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

      The record and the certified docket sheet do not contain Bailey's motion for reconsideration. However, Bailey filed a mandamus petition with this Court on June 5, 2017, because the circuit court had not yet ruled on his PCR motion. He attached his PCR motion to his mandamus petition. We take judicial notice of our own docket. See Gulley v. State , 870 So.2d 652, 656 (¶ 8) (Miss. 2004) (holding that a circuit court can take judicial notice of its own docket in resolving a PCR motion).


author: LEE, C.J., FOR THE COURT:

text:
    Koninedou F. WALKER a/k/a Koninedou Fonta Walker a/k/a Koninedou Walker a/k/a Fonta Walker, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00740-COA
    Court of Appeals of Mississippi.
    August 7, 2018
    ATTORNEY FOR APPELLANT: KONINEDOU F. WALKER (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, JACKSON
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. In this appeal, we must determine whether the trial court erred in denying Koninedou Walker's motion to expunge his record. Finding no error, we affirm.

PROCEDURAL HISTORY

¶ 2. In 2006, Walker was indicted on two counts of possession of a controlled substance with intent to distribute. At the time, Walker was on parole for two 2002 convictions-robbery and burglary. Due to his arrest and indictment on the possession-with-intent-to-distribute charges, Walker's parole for the 2002 convictions was revoked, and he was ordered to serve ten years in the custody of the Mississippi Department of Corrections (MDOC). As a result, the 2006 possession-with-intent-to-distribute charges were passed to the file by order dated October 16, 2007, and signed by the Harrison County Circuit Court trial judge. The document was titled "Announcement Passing to the Inactive Files," and the reason marked was "Defendant revoked ... and sentenced to 10 years MDOC."

¶ 3. On September 27, 2016, Walker filed a motion for expungement regarding the two possession-with-intent-to-distribute charges. The trial judge denied Walker's motion, finding that he failed to establish that any of the statutory conditions regarding expungement applied to his situation. Walker now appeals, asserting the trial court erred in denying his motion.

STANDARD OF REVIEW

¶ 4. Expungement is statutory in nature; thus we employ a de novo standard of review. Robertson v. State , 158 So.3d 280, 281 (¶ 3) (Miss. 2015).

DISCUSSION

¶ 5. Walker contends that several statutes are applicable to his situation, namely Mississippi Code Annotated section 41-29-150 (Rev. 2013), Mississippi Code Annotated section 99-15-26 (Rev. 2015), and Mississippi Code Annotated section 99-19-71 (Rev. 2015).

¶ 6. Section 41-29-150 applies to felony-drug convictions. Section 41-29-150(d)(1) states that

[i]f any person who has not previously been convicted of violating Section 41-29-139, or the laws of the United States or of another state relating to ... controlled substances or marihuana is found to be guilty of a violation of subsection (c) or (d) of Section 41-29-139, after trial or upon a plea of guilty, the court may, without entering a judgment of guilty and with the consent of such person, defer further proceedings and place him on probation upon such reasonable conditions as it may require ....

Then "[u]pon the dismissal of a person and discharge of proceedings against him under paragraph (1) of this subsection, the person may apply to the court for an order to expunge from all official records ...." Miss. Code Ann. § 41-29-150(d)(2). This section does not apply to Walker since he was not convicted of the possession-with-intent charges either by jury or guilty plea and the trial court never deferred further proceedings and placed him on probation.

¶ 7. Section 99-15-26 allows a trial court to expunge a felony conviction after a guilty plea under certain conditions. " Section 99-15-26 is an 'extraordinary provision' that allows circuit or county court judges in limited circumstances to receive a criminal defendant's guilty plea, but withhold acceptance of the plea, and defer sentencing." Turner v. State , 876 So.2d 1056, 1058 (¶ 7) (Miss. Ct. App. 2004). "If the defendant successfully completes certain court-imposed conditions, the cause against him is dismissed and the case closed." Id. Here, Walker's charges were not conditionally dismissed as contemplated by the statute; thus, we find this statute is not applicable to Walker.

¶ 8. Section 99-15-26(5) does provide that "[u]pon petition therefor, the court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case." However, this subsection is not applicable since Walker was never released after his arrest, and his case was not dismissed, dropped, or reached a final disposition.

¶ 9. Section 99-19-71 allows a trial court to expunge certain misdemeanor and felony convictions. Here, the statute is inapplicable since Walker was not convicted of a misdemeanor or felony and his felony charges do not meet the criteria for expungement. See § 99-19-71(1) & (2)(a). Like section 99-15-26(5), section 99-19-71(4) provides that "[u]pon petition therefor, a justice, county, circuit or municipal court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case." For the same reasons, we find this subsection does not apply to Walker.

¶ 10. Walker also cites Mississippi Code Annotated section 21-23-7 (Supp. 2017) in his reply brief, but that statute discusses the operation of municipal courts. Municipal judges can expunge records in certain situations pursuant to section 21-23-7(13) ; however, Walker did not file his motion in a municipal court.

¶ 11. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. TINDELL, J., NOT PARTICIPATING.

      One count was possession of more than thirty grams but less than one kilogram of marijuana with the intent to distribute. The other count was possession of cocaine with intent to distribute.


author: GREENLEE, J., FOR THE COURT:

text:
    Craig BRIDGEMAN, Appellant v. SBC INTERNET SERVICES INC. and Old Republic Insurance Company, Appellees
    NO. 2016-WC-00714-COA
    Court of Appeals of Mississippi.
    August 7, 2018
    ATTORNEY FOR APPELLANT: CRAIG BRIDGEMAN (PRO SE)
    ATTORNEY FOR APPELLEES: THOMAS LYNN CARPENTER JR., Gulfport
    EN BANC.
   GREENLEE, J., FOR THE COURT:

¶ 1. Craig Bridgeman claims the Mississippi Workers' Compensation Commission (the Commission) erred when it found that he was entitled to permanent partial disability (PPD) benefits for a 50% industrial loss of use of his right upper extremity. According to Bridgeman, the Commission should have found that he suffered a 100% industrial loss of use. Finding no error, we affirm the Commission's judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. Bridgeman was working for SBC Internet Services Inc. when he injured his right arm and shoulder. In August 2014, a physician opined that because Bridgeman could no longer climb utility poles, he could not return to his pre-injury position. Following medical treatment, Bridgeman reached maximum medical improvement in January 2015. A functional-capacity evaluation indicated that Bridgeman had permanent work restrictions. After SBC terminated Bridgeman because he could not return to work, Bridgeman filed a claim for workers' compensation benefits.

¶ 3. The administrative judge found that Bridgeman's injury was compensable. In a thorough and detailed opinion, the administrative judge noted that Bridgeman had a 7% medical impairment to his right arm, but it was outweighed by a 50% industrial loss of use. Consequently, the administrative judge found that Bridgeman was entitled to PPD benefits equivalent to two-thirds of his average weekly wage for 100 weeks. Bridgeman appealed. The Commission adopted the administrative judge's findings and upheld her decision. Dissatisfied, Bridgeman appeals.

STANDARD OF REVIEW

¶ 4. Our review of the Commission's decision "is limited to determining whether the decision was supported by substantial evidence, was arbitrary and capricious, was beyond the scope or power of the agency to make, or violated one's constitutional or statutory rights." Gregg v. Natchez Trace Elec. Power Ass'n , 64 So.3d 473, 475 (¶ 8) (Miss. 2011). This Court does not reweigh the evidence, resolve questions of fact, or judge the credibility of witnesses; those are all matters for the Commission. Short v. Wilson Meat House LLC , 36 So.3d 1247, 1251 (¶ 23) (Miss. 2010). "When the Commission accepts the findings and conclusions of the administrative judge, this Court reviews those findings and conclusions as those of the Commission." Pruitt v. Howard Indus. Inc. , 232 So.3d 822, 824 (¶ 7) (Miss. Ct. App. 2017).

DISCUSSION

¶ 5. Bridgeman claims that the Commission should have found that he suffered a total industrial loss of use of his right arm. According to Bridgeman, SBC did not adequately rebut the presumption of total loss of use that arose because he could not return to his pre-injury employment. We disagree.

¶ 6. "In a scheduled-member case, a worker is always entitled to compensation for the medical or functional loss of his body part, regardless of whether the functional loss impacts his wage-earning capacity." City of Laurel v. Guy , 58 So.3d 1223, 1226 (¶ 14) (Miss. Ct. App. 2011) (citing Meridian Prof'l Baseball Club v. Jensen , 828 So.2d 740, 745-46 (¶¶ 13-14) (Miss. 2002) ). "But ... when the industrial loss is greater than the medical loss[,] ... the claimant's industrial or occupational disability or loss of wage-earning capacity controls his degree of disability." Id. at (¶ 14) (citation and internal quotation mark omitted). "[T]here is a presumption of 100% industrial loss when the worker proves he can no longer perform the substantial acts of his usual employment." Id. at 1227 (¶ 16) (internal quotation mark omitted). "Usual employment in this context means the jobs in which the claimant has past experience, jobs requiring similar skills, or jobs for which the worker is otherwise suited by his age, education, experience, and any other relevant factual criteria." Id.

¶ 7. Here, the administrative judge found that the presumption of 100% industrial loss arose because Bridgeman could not return to his pre-injury employment. The Commission adopted the administrative judge's conclusion. The Commission also adopted the administrative judge's conclusion that SBC rebutted the presumption of 100% industrial loss.

¶ 8. An employer can rebut the presumption of total industrial loss by proving that the claimant has the "ability to earn the same wages" that he was earning at the time of his injury. Id. at 1228 (¶ 24). Even if the employer successfully rebuts the presumption, that does not mean that the injured employee will not be able to recover benefits. See id. at 1229 (¶ 27). It just means that the employee will not recover for a 100% industrial loss of use; but the employee will still be able to recover based on the greater of two ratings: medical impairment versus industrial loss of use of the scheduled member. See id. at (¶¶ 27-28).

¶ 9. Here, it was within the administrative judge's discretion to find that the total-loss-of-use presumption had been rebutted by Bruce Brawner's expert testimony and "industrially related factors." Bridgeman argues that SBC had to prove that Bridgeman could earn the same wage he was earning before his injury before the administrative judge could "look at factors such as age, education, work history, etc." Bridgeman is incorrect. "Rebuttal is shown by all the evidence concerning wage-earning capacity, including education and training [that] the claimant has had, his age, continuance of pain, and any other related circumstances." Jensen , 828 So.2d at 748 (¶ 21). The analysis clearly contemplates that a fact-finder must determine a claimant's industrial loss of use by weighing these factors.

¶ 10. As Brawner testified, Dr. William Geissler's records showed that Bridgeman could perform medium to heavy work. Brawner also noted that Bridgeman had "a marketable [Bachelor's] degree in computer science, although he ha[d] never performed a job that require[d] this degree since obtaining it in 2002." Bridgeman had also previously worked as a teacher under an "emergency" license that is no longer available, so Bridgeman would have to obtain a license to return to work as a teacher. Ultimately, Brawner reported that Bridgeman's permanent work restrictions prevented him from working in 48% of the jobs that were available to him prior to his injury. So the administrative judge found that based on the totality of circumstances, Bridgeman experienced a 50% industrial loss of use of his arm. Because the administrative judge's decision was clearly within her discretion, we find that this issue is meritless.

¶ 11. AFFIRMED.

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

      He could not perform overhead work for more than two-thirds of a day, lift more than seventy-five pounds from the floor to his waist, or lift more than thirty-five pounds from his waist to eye level. Additionally, Bridgeman could not constantly lift more than fifteen pounds, push more than 230 pounds, or pull more than 225 pounds.


text:
    CULPEPPER ENTERPRISES INC., Kathy Culpepper, and Brannon White, Appellants v. Joseph R. PARKER and Cheri C. Clancy, Appellees
    NO. 2016-CA-01771-COA
    Court of Appeals of Mississippi.
    August 7, 2018 Rehearing Denied November 20, 2018
    ATTORNEY FOR APPELLANTS: S. WAYNE EASTERLING, Hattiesburg
    ATTORNEYS FOR APPELLEES: CORY NATHAN FERRAEZ, Hattiesburg, SAMUEL STEVEN MCHARD
    BEFORE GRIFFIS, P.J., CARLTON, WILSON, AND GREENLEE, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. This appeal arises out of a breach of contract action for unpaid salaries. On June 22, 2016, Joseph R. Parker and Cheri C. Clancy filed a complaint against their former employer, Culpepper Enterprises Inc. alleging breach of oral contract for unpaid wages; negligent and intentional infliction of emotional distress; and their need for emergency, declaratory and injunctive relief. The complaint named Culpepper Enterprises' chief executive officer, Kathy Culpepper, and chief operating officer, Brannon White, as individual defendants.

¶ 2. In their first amended complaint filed July 6, 2016, Parker and Clancy alleged that the Culpepper defendants failed to compensate them for numerous pay periods "beginning in the middle of 2015." They also added a claim for damages under the Fair Labor Standards Act (FLSA). The Culpepper defendants filed their answer on July 21, 2016, raising the one-year statute of limitations found in Mississippi Code Annotated section 15-1-29 (Rev. 2015) as an affirmative defense.

¶ 3. On August 30, 2016, Parker and Clancy filed a second amended complaint without the trial court's leave, seeking unpaid salaries for 2013, 2014, and 2015. They filed a third amended complaint without leave of court on September 1, 2016, alleging damages for quantum meruit, breach of implied contract, and unjust enrichment. On September 6, 2016, the Culpepper defendants filed a motion to strike the second and third amended complaints. The Culpepper defendants also filed a motion to dismiss any claim for unpaid damages that accrued before June 22, 2015, based on the one-year statute of limitations. The court struck the second and third amended complaints, and ruled that Parker and Clancy's proof would be limited to damages accruing after June 22, 2015. The court found that due to this ruling, the Culpepper defendants' motion to dismiss any claim before June 22, 2015 was moot.

¶ 4. Despite the Culpepper defendants' motion for a continuance, the trial was held September 6, 2016. Following trial, the jury awarded Parker and Clancy unpaid salaries in the respective amounts of $48,000 and $40,960, against Culpepper Enterprises, which were consistent with Parker and Clancy's exhibits showing the total unpaid salaries. The jury also awarded Parker and Clancy $25,000 each for emotional distress and mental anguish against all three defendants.

¶ 5. On appeal, the Culpepper defendants argue (1) the trial court erred in denying its motion for a directed verdict because Parker's and Clancy's oral contracts for employment violate the statute of frauds, and the one-year statute of limitations precludes recovery for damages prior to June 22, 2015; (2) the trial court erred in denying its motion for a continuance; (3) the trial court erroneously allowed testimony concerning damages prior to June 22, 2015; (4) there is insufficient evidence to support an award of damages for emotional distress; and (5) the evidence failed to create a jury question as to Kathy and White's liability.

FACTS AND PROCEDURAL HISTORY

¶ 6. Culpepper Enterprises was formed in 1988 by William Culpepper (Kathy's husband and White's stepfather). Following William's death in 2007, Kathy became Culpepper Enterprises' chief executive officer. White became Culpepper Enterprises' chief operating officer in September 2015, after he stopped working as a private contractor for the federal government and moved to Collins, Mississippi.

¶ 7. From 1989 to 2012, Culpepper Enterprises maintained two lines of business. Its primary line involved fulfilling Mississippi Department of Transportation (MDOT) contracts to mow grass along interstate right-of-ways. Its secondary line, discontinued in 2012, involved mowing along pipeline and power lines. The Culpepper defendants contend that when their sole focus became mowing grass for the MDOT, its business activities became strictly seasonal. The Culpepper defendants claim that as a result, they informed Parker and Clancy that during winter months, they would be paid only when additional work became available.

¶ 8. Parker and Clancy quit working for Culpepper Enterprises on June 17, 2016.

Complaints

¶ 9. On June 22, 2016, Parker and Clancy filed a complaint in the Jones County Circuit Court, alleging that "beginning in the middle of 2015," the Culpepper defendants failed to compensate them for numerous pay periods pursuant to their oral employment contracts. The complaint alleged that Parker and Clancy entered into oral contracts with Culpepper Enterprises, whereby Parker was to receive an annual salary of $52,000 with $200 per diem each week, and Clancy was to receive an annual salary of $66,560 with $200 per diem each week. Parker sought $42,000 in unpaid salary, and Clancy sought $53,160. They also sought damages for emotional distress, attorney's fees, and a temporary restraining order and temporary injunction requiring the MDOT to withhold all funds it owed Culpepper Enterprises.

¶ 10. On June 29, 2016, the Jones County Circuit Court issued a temporary restraining order requiring that the MDOT withhold $100,000 in funds owed to Culpepper. The court later vacated the temporary restraining order and transferred Parker and Clancy's case to the Covington County Circuit Court.

¶ 11. On July 6, 2016, Parker and Clancy filed an amended complaint for damages and injunctive relief that additionally alleged FLSA violations. The amended complaint restated that the Culpepper defendants began failing to pay salaries "in the middle of 2015." On July 21, 2016, the Culpepper defendants filed their answer, pleading the one-year statute of limitations and the statute of frauds, and denying that FLSA applied to the case.

¶ 12. On August 30, 2016, Parker and Clancy filed a second amended complaint without leave of court, seeking unpaid salaries for 2013, 2014, and 2015. Parker increased his demand for unpaid salary to $94,000, and Clancy increased hers to $145,706. On September 6, 2016, Parker and Clancy filed a third amended complaint without leave of court, seeking damages based on quantum merit, breach of implied contract, and unjust enrichment. In response, the Culpepper defendants filed a motion to strike Parker and Clancy's second and third amended complaints, and a motion dismiss any evidence of unpaid salaries barred by the one-year statute of limitations.

¶ 13. On September 6, 2016, at a motion hearing immediately before trial, the trial judge struck Parker and Clancy's second and third amended complaints, and ruled that pursuant to the one-year statute of limitations, Parker and Clancy's proof would be limited to damages that accrued after June 22, 2015, one year before they filed the original complaint. The court overruled as moot the Culpepper defendants' motion to dismiss based on the one-year statute of limitations.

Motion for Continuance

¶ 14. Eight days before trial, on August 29, 2016, Kathy filed a motion for a continuance asserting that she was medically unable to participate in the trial due to a stroke. Her motion was accompanied by an unsworn certificate from a Merit Health medical director, stating that Kathy was admitted to Merit's Senior Care Unit on August 12, 2016, and was discharged on August 21, 2016, with recommended outpatient mental-health services. The medical director recommended that Kathy be given at least ninety days to "more fully recuperate from her recent hospitalization." Kathy's motion also requested a continuance on the grounds that Parker and Clancy had not responded to outstanding discovery, and had yet to be deposed because they cancelled their depositions.

¶ 15. On the morning of trial, September 6, 2016, the trial judge heard arguments on the motion for a continuance. Although the Culpepper defendants' written motion contended that there was outstanding discovery, the Culpepper defendants did not address this issue during the hearing. The trial court denied the motion for continuance, noting that the medical director's recommendation did not explain why Kathy was hospitalized, provide a diagnosis or prognosis for Kathy's condition, or state whether Kathy's ability to testify had been affected.

Trial

¶ 16. During trial, White testified that when Culpepper Enterprises discontinued its secondary line of business in 2012 and chose to focus on mowing grass for the MDOT, its business activities became strictly seasonal. White claimed that, as a result, Parker and Clancy were informed that during winter months they would be paid only when additional work became available. He stated that during cold-weather months, Parker and Clancy were accordingly paid when authorized to do additional work, such as servicing tractors.

¶ 17. Kathy testified as an adverse witness that she performed Culpepper Enterprises' payroll duties during 2014 and 2015, and that she timely paid all of their salaries. Kathy further stated that she properly submitted all of Parker and Clancy's withheld taxes, Social Security, and Medicare. She denied entering into oral employment contracts with Parker and Clancy for annual salaries.

¶ 18. Clancy testified that in 2008, she orally agreed with Culpepper Enterprises to receive an annual salary of $66,560, with either a one- or two-week pay period. She stated that she and Parker were never told that their pay would be altered in any way. Clancy testified that she worked year-round, including winter months. Clancy testified that sometime in 2015, Culpepper Enterprises failed to pay her and Parker for salaries they were owed, and that Kathy responded she would "take care of it." Clancy said at a later date during that year-sometime during late November or early December-she and Parker sat down with Kathy and asked for the salaries they had yet to receive. Clancy stated that she agreed to wait until January to be paid. She testified that for pay periods when she actually received checks, the checks did not list the correct pay-period dates. Instead, Kathy would hand her a check, and say, "I'm going to give you two checks for the next three or four weeks." Clancy further testified that upon going to the Social Security Administration office, she learned that no funds had been paid into her social security account during 2014 and 2015.

¶ 19. Parker testified that he started working at Culpepper Enterprises in the spring of 1991. He stated that in 2009, he and Culpepper Enterprises orally agreed that he would receive an annual salary of $51,000 and would be paid every two weeks. Parker asserted that his 2009 agreement with Culpepper Enterprises had never changed. He said that despite several conversations with Kathy and White, Culpepper Enterprises failed to pay him his agreed upon salary during 2014 and 2015.

¶ 20. Nell Hopkins testified that she worked as Culpepper Enterprises' bookkeeper and payroll clerk from September 2007 to December 2013. Hopkins said that she personally witnessed Parker and Clancy work year-round, even during winter months, and that she was never instructed to alter Parker's or Clancy's pay in any way. She testified that while working for Culpepper Enterprises, she observed Kathy ask Parker and Clancy not to cash their paychecks until Culpepper Enterprises had enough funds to cover the checks. Hopkins stated that on occasion, Kathy held Parker's and Clancy's paychecks until she chose to sign them. Hopkins further testified that although Culpepper Enterprises withheld taxes and Medicare from Parker's and Clancy's paychecks, Kathy instructed her not to submit the withholdings to the government. Additionally, Hopkins testified that Culpepper Enterprises continued to withhold life-insurance payments from Parker's and Clancy's checks after their insurance was cancelled in 2012. Hopkins said Kathy received life-insurance reimbursement checks but never gave them to Parker or Clancy.

¶ 21. Lisa Boykin, an accountant, testified as an expert for Parker and Clancy. She stated that prior to trial, she reviewed Parker's and Clancy's 2010-2015 W-2 statements, paycheck stubs, personal bank statements, 2015-2016 pay summaries, and July 2016 Social Security Administration Statements. She further stated that the documents she reviewed included: 2010-2016 banks statements relating to Parker's and Clancy's payrolls, 2010-2016 debit transactions of paychecks cleared for payment to Parker and Clancy, employee paycheck stubs, and operating expenses for transactions dated 2015-2016. In exhibits admitted into evidence as P15 and P16, Boykin opined that Parker's 2014-2016 gross missing payroll amounted to $48,000, and Clancy's equaled $40,960. Boykin's opinions as to Parker's gross-missing payroll, admitted as Parker and Clancy's exhibit P15, are as follows:

2014 1/25/14 to 2/07/14 $ 2,000 2/08/14 to 2/14/14 $ 2,000 7/19/14 to 8/01/14 $ 2,000 2014 TOTAL OWED $ 6,000 2015 1/10/15 to 1/23/15 $ 2,000 1/24/15 to 2/06/15 $ 2,000 2/07/15 to 2/20/15 $ 2,000 2/21/15 to 2/20/15 $ 2,000 3/07/15 to 3/20/15 $ 2,000 3/21/15 to 4/03/15 $ 2,000 4/04/15 to 4/17/15 $ 2,000 7/25/15 to 8/07/15 $ 2,000 8/08/15 to 8/21/15 $ 2,000 8/22/15 to 9/04/15 $ 2,000 9/05/15 to 9/18/15 $ 2,000 9/19/15 to 10/02/15 $ 2,000 10/03/15 to 10/16/15 $ 2,000 10/17/15 to 10/30/15 $ 2,000 2015 TOTAL OWED $28,000 2016 2/06/16 to 2/19/16 $ 2,000 2/20/16 to 3/04/16 $ 2,000 3/05/16 to 3/18/16 $ 2,000 3/19/16 to 4/01/16 $ 2,000 4/02/16 to 4/08/16 $ 2,000 6/04/16 to 6/17/16 $ 2,000 6/18/16 to 6/24/16 $ 2,000 2016 TOTAL OWED $14,000 PARKER PAYROLL 2014 TOTAL OWED $ 6,000 2015 TOTAL OWED $28,000 2016 TOTAL OWED $14,000 OWED TO PARKER $48,000

Boykin's opinions for Clancy's unpaid salary were admitted as plaintiffs' exhibit P16 and showed the following:

2014 1/25/14 to 2/07/14 $ 2,560 2/08/14 to 2/14/14 $ 2,560 7/19/14 to 8/01/14 $ 2,560 2014 TOTAL OWED $ 7,680 2015 12/27/15 to 1/09/15 $ 2,560 1/10/15 to 01/23/15 $ 2,560 1/24/15 to 02/06/15 $ 2,560 2/07/15 to 02/20/15 $ 2,560 2/21/15 to 03/06/15 $ 2,560 3/07/15 to 03/20/15 $ 2,560 2015 TOTAL OWED $15,360 2016 3/19/16 to 4/01/16 $ 2,560 4/02/16 to 4/15/16 $ 2,560 4/16/16 to 4/29/16 $ 2,560 4/30/16 to 5/13/16 $ 2,560 5/14/16 to 5/27/16 $ 2,560 5/28/16 to 6/10/16 $ 2,560 6/11/16 to 6/24/16 $ 2,560 2016 TOTAL OWED $17,920 Total Payroll Owed $40,960

¶ 22. The Culpepper defendants objected to Boykin's testimony and exhibits as contrary to the court's pretrial ruling that Parker and Clancy's evidence would be limited to damages accruing after June 22, 2015. In addition, the Culpepper defendants objected on the ground that the one-year statute of limitations barred damages accruing before then. The court overruled the Culpepper defendants' objections and ruled that the jury would decide which damages to award.

¶ 23. Following trial, the jury awarded Parker and Clancy $48,000 and $40,960, respectively, in unpaid salaries against Culpepper Enterprises, and $25,000 each for emotional distress against all three defendants. The Culpepper defendants timely appeal, arguing the trial court erred by: denying their motion for directed verdict; denying their motion for a continuance; admitting testimony concerning damages that occurred prior to June 22, 2016; awarding Parker and Clancy damages for emotional distress; and denying their motion for a directed verdict in favor of Kathy and White.

DISCUSSION

I. Denial of Culpepper's Motion for a Directed Verdict

¶ 24. The Culpepper defendants argue the trial court erred by failing to grant their motion for a directed verdict because Parker's and Clancy's oral contracts do not survive the statute of frauds as verbal agreements intended to be carried out over a period of time in excess of fifteen months. The Culpepper defendants also argue, as they asserted throughout the proceedings and trial, that the one-year statute of limitations found in section 15-1-29 bars recovery for any breach prior to June 22, 2015.

¶ 25. "Motions for directed verdict and judgments notwithstanding the verdict challenge the legal sufficiency of the evidence." Estate of Gibson ex. Rel. Gibson v. Magnolia Healthcare Inc. , 91 So. 3d 616, 622 (¶ 11) (Miss. 2012). On appeal, we review the sufficiency of the evidence on the last occasion it was challenged in the trial court. Dampeer v. State , 989 So.2d 462, 463 (¶ 6) (Miss. Ct. App. 2008). Therefore, because the Culpepper defendants moved for a judgment notwithstanding the verdict (JNOV) following the jury's verdict, we will assume that they are challenging the denial of their JNOV.

¶ 26. We review a trial court's denial of a JNOV de novo. Mine Safety Appliance Co. v. Holmes , 171 So.3d 442, 446 (¶ 8) (Miss. 2015). Likewise, we review statutes of limitation de novo. Am. Optical Corp. v. Estate of Rankin , 227 So.3d 1062, 1067 (¶ 19) (Miss. 2017). In reviewing the denial of a JNOV,

This Court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference[s] that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required.

Blake v. Clein , 903 So.2d 710, 731 (¶ 61) (Miss. 2005).

A. Statute of Frauds

¶ 27. Mississippi's statute of frauds provides that oral contracts "not to be performed" within fifteen months are unenforceable. Miss. Code Ann. § 15-3-1(d) (Rev. 2012). "The phrase 'not to be performed' contains negative words, and, accordingly, to bring a particular contract within the statute, there must be a negation of the right to perform [the contract] within fifteen months." U.S. Fin. Co. v. Barber , 247 Miss. 800, 810, 157 So.2d 394, 397 (1963). Generally, employment contracts of indefinite duration do not fall within the statute of frauds, since either party may terminate the contract at any time. Id. at 810, 157 So.2d at 397. Thus, "[t]he possibility of performance within ... fifteen months takes the contract out of the operation of the statute." Id. at 810, 157 So.2d at 397. Here, Parker's and Clancy's contracts were for indefinite periods, and were terminable at any time upon giving reasonable notice. Thus, Parker's and Clancy's contracts do not fall within the statute of frauds.

B. Statute of Limitations

¶ 28. Section 15-1-29 provides in pertinent part: "[A]n action based on an unwritten contract of employment shall be commenced within one (1) year next after the cause of such action accrued, and not after." In a breach of contract claim, the cause of action accrues at the time of the breach. Young v. S. Farm Bureau Life Ins. Co. , 592 So.2d 103, 107 (Miss. 1991).

¶ 29. In this case, Parker and Clancy contend that the Culpepper defendants failed to pay their salaries for pay periods in 2014, 2015, and 2016. However, because Parker's and Clancy's claims are based on unwritten employment contracts, the one-year statute of limitations limits recovery to breaches occurring after one year before the filing of the lawsuit. Parker and Clancy filed their complaint on June 22, 2016; therefore, their recovery must be limited to breaches occurring after June 22, 2015. We concur with precedent that the statute of limitations applies to bar recovery for unpaid salaries before June 22, 2015. However, Parker and Clancy argue that the one-year statute of limitations was tolled by: (1) fraudulent concealment; (2) willful violation of the FLSA; (3) equitable estoppel; and (4) the Culpepper defendants' promises to pay.

¶ 30. We note that Parker and Clancy did not file a cross-appeal. Generally, we will not consider "points of error" raised by an appellee who fails to cross-appeal. Bd. of Trs. v. Knox , 688 So.2d 778, 782 n.1 (Miss. 1997) ; Brock v. Hankins Lumber Co. , 786 So.2d 1064, 1068 (¶ 18) (Miss. Ct. App. 2000). However, this Court has previously held that "an appellee should not be required to file a cross-appeal unless he or she is aggrieved by the trial court's judgment." Dunn v. Dunn , 853 So.2d 1150, 1152 (¶ 8) (Miss. 2003). The trial court's judgment awarded Parker and Clancy damages beyond the one-year recovery period allowed by the statute of limitations; thus, there was no reason for Parker and Clancy to challenge this decision. Presley v. Senatobia , 997 So.2d 235, 238 (¶ 8) (Miss. Ct. App. 2008) ("[C]ross appeal is neither required nor expedient where its only purpose is to urge alternative grounds for affirmance."). Therefore, we examine Parker and Clancy's position that the statute of limitations does not apply. Empire Abrasive Equip. Corp. v. Morgan , 87 So.3d 455, 461 (¶ 21) (Miss. 2012) (determining appellee was not required to cross-appeal in order to claim appellants waived a statute of limitations defense).

1. Fraudulent Concealment

¶ 31. Parker and Clancy claim the Culpepper defendants fraudulently concealed nonpayment of their salaries. We note that they did not argue fraudulent concealment at trial. Mississippi Code Annotated section 15-1-67 (Rev. 2012) provides that:

If a person liable to any personal action shall fraudulently conceal the cause of action from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence might have been, first known or discovered.

To establish fraudulent concealment, there must be "some act or conduct of an affirmative nature designed to prevent and which does prevent discovery of the claim." Trustmark Nat'l Bank v. Meador , 81 So.3d 1112, 1119 (¶ 17) (Miss. 2012). A plaintiff is required to "show that (1) some affirmative act of conduct was done and prevented discovery of the claim; and (2) due diligence was performed on its part to discover the claim." Id. (citing Sanderson Farms Inc. v. Ballard , 917 So.2d 783, 790 (¶ 33) (Miss. 2005) ). In addition, the Mississippi Supreme Court has held that fraudulent concealment "must be pled with specificity and particularity under [Mississippi Rule of Civil Procedure] 9(b)." State Indus. Inc. v. Hodges , 919 So.2d 943, 946 (¶ 6) (Miss. 2006). Parker and Clancy did not show they were unaware that they had not been paid. Nor did they plead fraudulent concealment with specificity and particularity. Their claim of fraudulent concealment to toll the statute of limitations is without merit.

2. FLSA

¶ 32. Parker and Clancy argue the FLSA preempts the one-year statute of limitations. In doing so, they attempt to use the FLSA to toll the statute of limitations, although they did not prove the FLSA's applicability at trial. The time for filing a claim under the FLSA is within two years after the cause of action accrued, or for willful violations, within three years after the cause of action accrued. 29 U.S.C. § 255(a) (2012). "The determination of whether an employee falls within the scope of a FLSA exemption is ultimately a legal question." Atkins v. Old River Supply Inc. , 150 So.3d 976, 979 (¶ 8) (Miss. Ct. App. 2014) (quoting Walton v. Greenbrier Ford Inc. , 370 F.3d 446, 450 (4th Cir. 2004) ).

¶ 33. The FLSA provides for a private cause of action against an employer who violates the act's minimum-wage and overtime provisions. See 29 U.S.C. § 216(b) (2012) ("Any employer who violates the provisions of section 206 [minimum wage provision] or section 207 [overtime pay provision] of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages , or their unpaid overtime compensation ....") (emphasis added). Here, Parker and Clancy do not argue about unpaid minimum wages or unpaid overtime compensation; rather, they assert they were not paid the full amount of their annual salaries. We therefore find Parker's and Clancy's claims do not fall under the FLSA's coverage. Timm v. Advanced Eng'g Sols Inc. , No. A-12-CV-227, 2014 WL 12649850, at *7 (W.D. Tex. March 3, 2014) ("[T]he FLSA does not provide a cause of action for unpaid wages, but rather only for failure to pay an employee overtime pay or the legal minimum wage ...."); Pioch v. IBEX Eng'g Servs. Inc. , 825 F.3d 1264, 1271 (11th Cir. 2016) ("The FLSA ... is not a vehicle for litigating breach of contract disputes between employers and employees."); Coffen v. Washington Convention & Sports Auth. , 271 F.Supp.3d 211, 214 (D.D.C. 2017) (collecting cases). Accordingly, the FLSA statute of limitations does not apply.

3. Equitable Estoppel

¶ 34. Parker and Clancy argue that the Culpepper defendants are equitably estopped from arguing the statute of limitations applies, asserting that over the course of 2014, 2015, and 2016, the Culpepper defendants fraudulently concealed withheld salaries and other monies owed.

¶ 35. For equitable estoppel to toll the statute of limitations,

the plaintiff must show by a preponderance of the evidence that (1) it was induced by the conduct of the defendant not to file its complaint sooner, (2) resulting in its claim being barred by the applicable limitations, and (3) the defendant knew or had reason to know that such consequences would follow.

Townes v. Rusty Ellis Builder Inc. , 98 So.3d 1046, 1055 (¶ 26) (Miss. 2012). "Inequitable or fraudulent conduct must be established to apply the doctrine of equitable estoppel to a statute of limitations." Ray v. Keith , 859 So.2d 995, 997 (¶ 8) (Miss. 2003). "Equitable estoppel is an extraordinary remedy that should be used with caution."

Simmons Housing Inc. v. Shelton , 36 So.3d 1283, 1287 (¶ 15) (Miss. 2010).

¶ 36. As discussed already, Parker and Clancy failed to show that the Culpepper defendants concealed nonpayment of their salaries. Further, Parker and Clancy presented no evidence that the Culpepper defendants induced them not to pursue a cause of action. We find that equitable estoppel does not toll the one-year statute of limitations.

4. Promises to Pay

¶ 37. Parker and Clancy contend that the limitations period was tolled because in 2015 Kathy and White made several specific promises to pay any salaries withheld from them during that year.

¶ 38. During trial, Clancy testified that she and Parker approached Kathy on several occasions in 2015 to ask about being paid for contracts they completed. Clancy said Kathy would say, "I'm going to do it if you will just give me a little more time" or "I'll take care of it." Clancy could not recall when Kathy made these promises. Clancy testified that during August or September 2015, she and White discussed her and Parker's unpaid salaries, and White told her he would see that Kathy paid them. Clancy testified that in November or December 2015, she requested payment from Kathy, and Kathy asked if she could wait until January 2016 to be paid. Clancy responded that she could wait.

¶ 39. The Mississippi Supreme Court "has uniformly held that, in order to remove the bar of the statute, the acknowledgment of the debt and the promise to pay must be definite and unequivocal." U.S. Fid. & Guar. Co. v. Krebs , 190 So.2d 857, 861 (Miss. 1966) (quoting Philp v. Hicks , 112 Miss. 581, 589, 73 So. 610, 612 (1916) ). Per Mississippi Code Annotated section 15-1-73 (Rev. 2012), the acknowledgment or promise must be in a writing signed by the party to be charged. Further, the acknowledgment or promise must identify the debt and acknowledge or promise to pay a definite amount. Taylor v. Desoto Lumber Co. , 137 Miss. 829, 102 So. 260, 261 (1924). However, "the debt itself need not be identified if it is evidenced by a written instrument from which the remaining amount to be paid can be ascertained by calculation." U.S. Fid. & Guar. Co. , 190 So.2d at 861.

¶ 40. Parker and Clancy contend that the salaries Culpepper Enterprises owes them can be calculated by a written instrument. However, pursuant to section 15-1-73, a promise to pay will only toll the statute of limitations if it is in writing. See Harrison Enters. Inc. v. Trilogy Commc'ns Inc. , 818 So.2d 1088, 1092-96 (¶¶ 12-29) (Miss. 2002). Kathy's and White's promises were not in writing. Nor were they definite and unequivocal. Kathy and White never promised to pay a definite amount and did not specify the pay periods for which they were promising to pay. We therefore find that Kathy's and White's promises do not toll the statute of limitations.

C. Limitation on the Jury Verdict

¶ 41. The jury awarded Parker and Clancy unpaid gross salaries in the respective amounts of $48,000 and $40,960, virtually adopting Parker's and Clancy's total missing payroll amounts for 2014-2016, found in exhibits P15 and P16. The exhibits provided for gross salaries without a deduction for any withholdings such as for taxes or insurance. Because we find that the one-year statute of limitations applies to this case, we find the jury's award of damages accruing prior to June 22, 2015 to be error. In applying the one-year statute of limitations to the figures adopted by the jury from P15 and P16, it is apparent that Culpepper Enterprises owed Parker $28,000 and Clancy $17,920 for unpaid salaries that accrued after June 22, 2015. Accordingly, we affirm the jury's verdict to the extent that it awarded Parker and Clancy unpaid gross salaries for breaches occurring after June 22, 2015, and reverse and render the remaining amount of the jury's award for unpaid salaries.

II. Denial of Culpepper's Motion for a Continuance

¶ 42. Prior to trial, the Culpepper defendants requested a continuance, asserting that (1) Kathy was medically unable to participate in trial as scheduled because she was recuperating from a stroke, and (2) Parker and Clancy had yet to respond to outstanding discovery. The motion was supported by a sworn affidavit from the Culpepper defendants' attorney and an unsworn certificate from a Merit Health medical director, recommending that trial be extended at least ninety days to allow Kathy "to more fully recuperate from her recent hospitalization." The medical director stated that Kathy was hospitalized from August 12 to 21, 2016. She was discharged with recommended outpatient mental-health services.

¶ 43. During a hearing on the motion, the trial court noted that the medical director's recommendation did not explain why Kathy was hospitalized and neither provided a diagnosis or prognosis for Kathy's condition. Additionally, the trial court noted that the medical director failed to state whether Kathy's ability to testify was affected. The trial court denied the continuance and proceeded immediately with trial. We note that the Culpepper defendants did not mention any outstanding discovery issues during the hearing.

¶ 44. "It is well settled that the decision to grant or deny a motion for a continuance is within the sound discretion of the trial court and will not be reversed unless the decision results in manifest injustice." In re E.G. , 191 So.3d 763, 772 (¶ 37) (Miss. Ct. App. 2016) (internal quotation mark omitted). "[T]here is no mechanical test for determining whether a continuance should be granted, and the circumstances of each case must be carefully examined, especially the reasons presented to the trial judge at the time the request is denied." Harveston v. State , 742 So.2d 1163, 1169 (¶ 21) (Miss. Ct. App. 1999).

¶ 45. Looking to the denial of the motion for continuance, we cannot find an abuse of discretion. The Culpepper defendants offered no proof that Kathy was unable to testify or that her ability to testify was impaired. We note that Kathy testified during trial as an adverse witness for Parker and Clancy, but that she did not testify in her own case-in-chief. The Culpepper defendants contend that after testifying as an adverse witness, Kathy was unable to testify again because she was too weak. Yet the Culpepper defendants did not move to continue the trial asserting that Kathy could not be called in their case-in-chief because she was too weak too testify, and did not offer any evidence of Kathy's inability to testify on its motion for a new trial. Under these circumstances, we find no manifest injustice occurred. We cannot find that the trial court abused its discretion in refusing to grant the continuance.

III. Admission of Testimony Concerning Damages

¶ 46. In this assignment of error, the Culpepper defendants contend the trial court erroneously allowed Boykin to testify about damages that occurred before June 22, 2015. The Culpepper defendants point out that Parker and Clancy did not allege damages prior to mid-2015 in their complaint or amended complaint. The Culpepper defendants also note that they were denied the opportunity to cross-examine Parker and Clancy on salaries withheld prior to June 2015. Citing Lee v. Stewart , 724 So.2d 1093 (Miss. Ct. App. 1998), the Culpepper defendants argue the trial court erroneously allowed expert testimony pertaining to issues not contained in the pleadings.

¶ 47. "The standard of review regarding the admission or exclusion of evidence is abuse of discretion." Benchmark Health Care Ctr. Inc. v. Cain , 912 So.2d 175, 179 (¶ 7) (Miss. Ct. App. 2005). This court will not reverse the trial court's decision regarding the admission or exclusion of evidence unless the error adversely affects a substantial right of a party. Id. (citing Harrison v. McMillan , 828 So.2d 756, 765 (¶ 27) (Miss. 2002) ).

¶ 48. The Culpepper defendants correctly argue that evidence pertaining to issues not contained in the pleadings generally may not be presented at trial. "Where a party offers proof on an issue not pleaded ... her opponent upon timely and proper objection may of right demand that the evidence be excluded." Queen v. Queen , 551 So.2d 197, 200 (Miss. 1989). The Culpepper defendants timely objected to the testimony and therefore had a right to have Boykin's testimony on damages prior to mid-2015 excluded. However, this issue is moot due to our earlier discussion and ruling that the one-year statute of limitations applies. We therefore decline to review it further.

IV. Emotional Distress

¶ 49. The Culpepper defendants also assert there was insufficient proof to support an instruction or award of damages for emotional distress.

¶ 50. When a claim for emotional distress is based on a contract, "a plaintiff must show that (1) the emotional distress was a foreseeable consequence of the particular breach-of-contract and (2) that he or she actually suffered emotional distress; plaintiffs need not prove any physical manifestation." Swartzfager v. Saul , 213 So.3d 55, 67 (¶ 38) (Miss. 2017). "However, the plaintiff must show specific suffering during a specific time frame; generalizations are not sufficient." Id.

¶ 51. In this case, Parker and Clancy failed to present sufficient proof of injury to present a jury issue. The only evidence presented by Parker supporting his claim for emotional distress was the following on direct examination:

Q And, Mr. Parker, would you please tell the jury and the Court how you have been affected by Culpepper's failure to pay your wages and reimbursements?
A Well, I'm getting buried by bills right now from the doctors. You know, it's a load. I don't know, this cancer business I got, it's just constant bills. It's not cheap to stay alive, you know. This cancer is killing me, literally, you know.
Q And ... in 2014 and [2015] and now [2016] ... that they failed to pay you, how has that affected you during that time period?
A A lot.

¶ 52. Clancy's proof for her claim of emotional distress included her testimony that Culpepper's failure to pay was "very confusing," and as a result, she experienced "a roller coaster of emotions." Clancy stated that she went "through bouts of depression," and had been "emotional with her family." She also testified that her claim for emotional distress stemmed from the stress and emotional toll she experienced.

¶ 53. In Strickland v. Rossini , 589 So.2d 1268, 1275-76 (Miss. 1991), the Mississippi Supreme Court held that evidence a plaintiff was "very depressed ... [and] very upset over all this and emotional ... [and] not able to sleep," was insufficient to recover damages for emotional distress. Similarly, the supreme court found insufficient proof of injury to support a claim of emotional distress in Morrison v. Means , 680 So.2d 803 (Miss. 1996), where a plaintiff testified that the defendant's conduct "affected [him] emotionally in that [he] [was] not ... able to sleep many nights because [he] felt like [he] [had] been done wrong ... [and] cheated out of money that [he] need[ed] to help support [his] family." Id. at 807.

¶ 54. Under our prevailing case law, we find that Parker's and Clancy's testimonies were insufficient to support an instruction or award of damages for emotional distress. We therefore reverse and render the jury's award of damages for emotional distress.

V. Denial of Culpepper's Motion for Directed Verdict as to Kathy and White

¶ 55. In their motion for a directed verdict, the Culpepper defendants contended that because Kathy and White were acting as agents for Culpepper Enterprises, the evidence failed to create a jury issue as to their individual liability for breach of contract.

¶ 56. "It is a longstanding [tenet] of agency law that an agent who discloses its principal cannot be held liable for the contract entered into with the principal." Chevis v. Miss. Farm Bureau Mut. Ins. Co. , 76 So.3d 187, 195 (¶ 28) (Miss. Ct. App. 2011) ; Fireman's Fund Ins. Co. v. Chartis Ins. Agency Inc. , No. 3:12-CV-657, 2013 WL 1305602, at *2 (S.D. Miss. 2013) ; Hughes v. United Auto. Ins. Co. , No. 5:09-CV-168, 2010 WL 2670858, at *3 (S.D. Miss. 2010). Although an agent enters into a contract on behalf of the principal, the agent does not become a party to the contract and is not responsible for its breach. Johnson v. Rimes , 890 F.Supp.2d 743, 745 (S.D. Miss. 2012).

¶ 57. The evidence shows that Parker's and Clancy's contracts were with Culpepper Enterprises. Therefore, considering the evidence in the light most favorable to Parker and Clancy, reasonable jurors could not have arrived at a verdict that resulted in individual liability on the part of Kathy or White. We note that the jury's verdict on breach of contract was against only Culpepper Enterprises, but the trial court's judgment awarded joint and several damages against Culpepper Enterprises, Kathy, and White. The trial court erred in denying the Culpepper defendants' motion for JNOV regarding Kathy and White's individual liability because they were only agents of Culpepper Enterprises. Further, the trial court should not have rendered a judgment against all three defendants when the jury's verdict on breach of contract was only against Culpepper Enterprises. Consequently, Kathy and White bear no responsibility for any portion of the judgment and should be dismissed with prejudice from this suit. See Estate of Gibson , 91 So.3d at 624 (¶ 49).

CONCLUSION

¶ 58. In summary, we find the trial court erred when it denied the Culpepper defendants' motion for a directed verdict and JNOV because the jury verdict contained damages for unpaid salaries outside the one-year statute of limitations. We find no manifest injustice resulted from the trial court's denial of the Culpepper defendants' motion for a continuance. We reverse and render any damages awarded for emotional distress, and reverse and render the judgment of the circuit court awarding any damages against Kathy and White individually. We reverse and remand for the circuit court to enter a judgment for Parker and Clancy against only Culpepper Enterprises, in the amount of $28,000 for Parker and $17,920 for Clancy.

¶ 59. REVERSED AND RENDERED IN PART; REMANDED IN PART.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. TINDELL, J., CONCURS IN PART AND IN THE RESULT WITH SEPARATE WRITTEN OPINION, JOINED BY WESTBROOKS, J.

TINDELL, J., CONCURRING IN PART AND IN RESULT:

¶ 60. While I concur in result with the majority's opinion, I feel compelled to write separately regarding the trial court's denial of Culpepper's motion for a continuance. Less than ninety days after Parker and Clancy filed their complaint, the trial court held a trial. During this time period, Parker and Clancy filed two additional amended complaints, the trial court transferred venue, and the parties apparently failed to complete discovery. Furthermore, less than a month before the trial, Kathy suffered a stroke and was hospitalized for nine days. Had this Court not been able to render what I believe to be the correct conclusion, it is my opinion this case would have been ripe for reversal based solely upon the denial of Culpepper's motion for a continuance. I seek not to discourage trial courts from managing their own dockets, particularly when it comes to pushing matters to trial. After all, justice delayed is all too often justice denied. However, unless an apparent reason exists for fast-tracking a case, I would caution trial courts to at least allow the discovery period set forth in Rule 4.03(A) of the Uniform Civil Rules of Circuit and County Court to be completed before proceeding to trial.

WESTBROOKS, J., JOINS THIS OPINION.

      In their complaint, Parker and Clancy use "salary" and "unpaid wages" interchangeably to describe their claims. We note that Parker and Clancy never asserted they were paid by the hour or worked certain hours per week. Therefore, we refer to their claims as those for unpaid salaries.

      Culpepper, Kathy, and White are collectively referred to as "the Culpepper defendants" unless stated otherwise. We refer to the business entity as "Culpepper Enterprises" to provide clarification when necessary.

      Section 15-1-29 states in pertinent part that "an action based on an unwritten contract of employment shall be commenced within one (1) year next after the cause of such action accrued, and not after."

      At trial, Parker and Clancy argued concealment in the context of equitable estoppel.

      The trial court ruled that Parker's and Clancy's FLSA claims did not apply, and their FLSA claims were not submitted to the jury.

      We note the trial court rejected Parker and Clancy's jury instruction on equitable estoppel.

      The trial court's judgment awarded a "verdict in favor of the Plaintiffs against the Defendants Culpepper Enterprises, Inc., Kathy Culpepper, and Brannon White jointly and severally in the amount of $138,960."