text:
    Nathaniel WALDEN a/k/a Nathaniel "Dude" Walden, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00515-COA
    Court of Appeals of Mississippi.
    September 25, 2018
    ATTORNEYS FOR APPELLANT: NATHANIEL WALDEN (PRO SE)
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER, JACKSON
    BEFORE LEE, C.J., FAIR AND WILSON, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. Following an evidentiary hearing on Nathaniel Walden's motion for postconviction relief (PCR) in which he asserted ineffective assistance of counsel, the Holmes County Circuit Court denied Walden's motion on the merits. Walden now appeals. Finding no error, we affirm.

¶ 2. The present appeal comes before this Court following an evidentiary hearing in the circuit court on Walden's ineffective-assistance claim. This hearing took place following the supreme court's decision in Walden v. State , 201 So.3d 1042 (Miss. 2016), reversing the circuit court's decision to dismiss Walden's initial PCR motion and this Court's decision to affirm the circuit court in Walden v. State , 213 So.3d 547 (Miss. Ct. App. 2016), rev'd , 201 So.3d 1042 (Miss. 2016). Thus, the facts and circumstances giving rise to this appeal are the same as those in his previous PCR appeals, as well as Walden's direct appeal in Walden v. State , 29 So.3d 17 (Miss. Ct. App. 2008). Walden's present ineffective-assistance claims are largely based on this Court's discussion and disposition of issues raised in his direct appeal. As such, it is necessary to detail not only the facts and procedural history underlying Walden's present appeal but also his previous PCR-motion appeals and direct appeal.

FACTS

¶ 3. On April 28, 2005, Walden shot and killed his sister-in-law, Mary Walden, who was married to Walden's brother, James. Walden and James had been arguing over the course of a couple weeks regarding items James's son had purportedly taken and not returned. On the day of the shooting, Walden went to James's property in Holmes County, Mississippi, to confront him about a missing saw. The two became involved in a heated exchange. According to James, Walden would not leave his property, so he pointed an unloaded shotgun at Walden so that he would leave. Walden left and went to his sister, Maddie Brown's house, but after about twenty minutes he returned to James's trailer house. The two exchanged gunshots. Brown later provided a statement to the sheriff's office and also testified at trial that Walden was angry when he left her house and stated that he was going to kill James. Both James and Walden gave conflicting accounts regarding the shooting, and each testified at trial that the other began shooting first. Once Walden left James's property, James discovered that Mary was dead, lying in a pool of blood in the doorway between the master bedroom and the bathroom. Mary's autopsy revealed she had died from a single bullet to the head, and the Mississippi Crime Laboratory determined that this bullet came from Walden's pistol he had on his person at the time of his arrest. Walden testified at trial that he did not know at the time he left James's property that he had shot Mary who was in the house.

¶ 4. Following a jury trial in the Holmes County Circuit Court, Walden was convicted of murder and shooting into an occupied dwelling. For the murder conviction, Walden was sentenced to life in the custody of the Mississippi Department of Corrections (MDOC). For shooting into an occupied dwelling, he was sentenced to ten years in the custody of the MDOC, with five years suspended and on probation, with the sentence to run consecutively to the life sentence. Additional facts are discussed as relevant in the course of the procedural history and analysis.

PROCEDURAL HISTORY

1. Direct Appeal

¶ 5. Walden directly appealed his conviction and sentence to this Court in Walden v. State , 29 So.3d 17 (Miss. Ct. App. 2008). One of his claims on direct appeal was that "the trial court erroneously refused Walden's proffered jury instruction D-2." Id. at 19 (¶ 2). Jury instruction D-2 (the accident instruction) would have "instructed the jury to find Walden not guilty if it found that Walden, without design or deliberation to cause death, possessed a pistol and 'in the heat of passion in a struggle between James Walden and Nathaniel Walden the fatal shot was fired accidentally and through misfortune, upon any sudden and sufficient provocation.' " Id. at 23 (¶ 20). Walden argued on direct appeal that the trial court's refusal of the accident instruction prevented him from presenting his theory of the case to the jury. Id. Walden had testified at trial "that he was running away and shooting into the air, so he did not know how many rounds he had fired into the trailer house ... [and] maintained throughout his testimony that he never intended to kill anyone." Id. at 21 (¶ 11). This Court explained that "[w]hile a defendant is entitled to a jury instruction that presents his theory of the case, this entitlement is limited by the court's ability to refuse a defense instruction that incorrectly states the law or lacks a foundation in the evidence." Id. at 23 (¶ 21) (citing Howell v. State , 860 So.2d 704, 745 (¶ 142) (Miss. 2003) ). We then held that "jury instruction D-2 lacked an evidentiary foundation, and the trial court correctly denied it" because the accident instruction would have been warranted only if there had been evidence that Walden accidentally fired the gun. Id. (citing Montana v. State , 822 So.2d 954, 962-63 (¶¶ 33-34) (Miss. 2002) ). But, "Walden's theory of the case was based upon his own testimony that he intentionally fired each shot. There was no evidence from which a jury could have found that Walden fired the shots accidentally." Id. at 24 (¶ 22). This Court affirmed the trial court's denial of the accident instruction.

¶ 6. Also in his direct appeal, Walden alleged there was insufficient evidence to support his murder conviction because there was "no evidence that he fired the gun with deliberate design to effect death." Id. at 25 (¶ 25). But this Court found that there was sufficient evidence to support Walden's murder conviction, particularly Brown's testimony that Walden stated he was going to kill James just before returning to James's property when the shooting occurred. Id. We also noted there was testimony that Walden shot at James first and that James retreated into the trailer house and Walden shot into the trailer. Id. We then explained that Walden's intent to kill James was transferred to Mary under the doctrine of transferred intent, so there was sufficient evidence of intent to support his murder conviction. Id. at (¶ 26).

2. Initial PCR Motion

¶ 7. On June 20, 2013, the supreme court granted Walden leave to proceed in the circuit court, and Walden filed his PCR motion on July 12, 2013. Walden's PCR motion asserted a claim for ineffective assistance of counsel, alleging that his counsel was constitutionally deficient for advising him to reject a manslaughter plea deal and that his counsel told him that the State would not be able to prove at trial that Walden intentionally murdered Mary. He further alleged that his counsel was ineffective for presenting an accident defense when there was evidence that Walden had intentionally fired the shots. The circuit court found that Walden's petition was procedurally barred because Walden failed to seek leave from the supreme court to proceed and that the petition was time-barred. As to the merits, the circuit court found that Walden's petition should be denied because the evidence at trial supported his murder conviction. The circuit court also found that Walden's claims were supported only by his own affidavits, thereby warranting dismissal.

¶ 8. Walden appealed the circuit court's dismissal of his PCR motion to this Court in Walden v. State , 213 So.3d 547 (Miss. Ct. App. 2016), rev'd , 201 So.3d 1042 (Miss. 2016). We found that the motion was not procedurally barred because Walden had sought leave to proceed in the circuit court, which the supreme court had granted. 213 So.3d at 549-50 (¶ 10). We also found that Walden's motion was not time-barred, noting that "Walden filed his motion seeking leave before the three-year statute of limitations expired, but it was not granted until after the three-year deadline had passed, [so] we must presume that the supreme court intended to allow Walden to file his motion without subjecting it to the three-year statute of limitations." Id. at 550 (¶ 13).

¶ 9. Though finding Walden's claim was procedurally alive and not time-barred, we found that the circuit court did not err in dismissing the claim on the merits, noting that "where a party offers only his affidavit, then his ineffective assistance claim is without merit." Id. at 550 (¶ 15) (quoting Cherry v. State , 24 So.3d 1048, 1051 (¶ 6) (Miss. Ct. App. 2010) ). Affirming the circuit court's dismissal, we held that "because Walden fails to present any evidence that he was offered a plea deal for manslaughter, he has no grounds to support his claim of ineffective assistance of counsel." Id. Walden appealed, and the supreme court granted his petition for certiorari.

¶ 10. In Walden v. State , 201 So.3d 1042, 1044 (¶ 9) (Miss. 2016), the supreme court found that this Court had "accurately addressed ... that the circuit judge erred by finding that Walden had failed to seek leave and had filed outside the three-year statute of limitations." The supreme court then "consider[ed] whether Walden's claim should have survived summary dismissal on the merits." Id. The supreme court noted that the circuit court dismissed Walden's claim on the merits for two reasons. "First, the circuit judge found that Walden could not prove prejudice because the evidence at trial supported his conviction for murder. This conclusion was error." Id. at (¶ 10). The supreme court found that the "circuit judge erred by focusing her prejudice analysis on the evidence of guilt at trial," rather than whether "the outcome of the plea process would have been different with competent advice." Id. at (¶ 11) (citing Lafler v. Cooper , 566 U.S. 156, 163, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) ).

¶ 11. As to the second reason the circuit court dismissed Walden's claim (because it was supported only by his own affidavit), the supreme court stated that "the petitioner's obligation to support his application with affidavits other than his own is not absolute. That obligation may be excused by a showing that the petitioner has good cause for failing to obtain those affidavits." Id. at 1045 (¶¶ 12, 14). The supreme court noted that Walden had "asserted potential good cause for his failure to provide additional affidavits-which the circuit judge failed to consider ...." Id. at 1045 (¶ 15). Ultimately, the supreme court reversed the circuit court's dismissal, as well as this Court's decision affirming the circuit court, and remanded to the circuit court "for proceedings consistent with [the] opinion." Id. at (¶ 16).

3. PCR Evidentiary Hearing on Remand

¶ 12. On remand in the circuit court, the circuit judge held an evidentiary hearing based on Walden's ineffective-assistance claim.

¶ 13. At the PCR evidentiary hearing, Walden set out to show that the State "made a plea offer to Mr. Walden that if he were to plead guilty to the offense of manslaughter, the State would recommend [twenty] years to serve in the Department of Corrections as well [as] dismiss the shooting into a dwelling charge." In addition to testifying himself, Walden called as witnesses James Powell, one of the prosecutors on Walden's trial; Jimmy Hull, Walden's appointed defense counsel; and James, Walden's brother.

A. Powell's Testimony

¶ 14. Powell testified that he was the district attorney for the 21st judicial district at the time of Walden's trial and that he was the lead prosecutor on Walden's case. Powell stated that he did not specifically recall making Walden a plea offer, testifying: "I do not remember whether I did or not. I just don't know." Powell also testified that usually the judge would order a deadline by which plea offers must be made, and Powell would have a "master sheet" and specific, individual offer sheets for each client's attorney. He testified that normally he would have kept the offer sheets, but in Walden's case file there was no master sheet or specific offer sheets evidencing that any offer had been made. Powell concluded his testimony at the hearing by stating "I can't testify truthfully one way or the other, whether we made an offer or not."

B. Hull's Testimony

¶ 15. Walden's trial counsel, Hull, also testified at the PCR evidentiary hearing. Hull stated that he was employed as the public defender for Holmes County when he represented Walden at trial. Hull recalled that the first time he met Walden, Walden "walked in my office, [and] he told me that if I thought he was going to plead guilty I was crazy." When asked if he received a plea offer for Walden's case, Hull answered, "I don't remember specifically, but if I got one my habit would have been to tell him about it and let him make the decision." Hull testified that he believed from the start of the case that it was a manslaughter case and not a murder case. He said that if he had received an offer for ten years to serve or even twenty years to serve for a manslaughter plea, he would have advised Walden to take the plea. Hull stated that "[i]f there was a plea offered, it was turned down." Hull also stated at the hearing that he advised Walden not to testify, but Walden went against his advice and took the stand.

C. James Walden's Testimony

¶ 16. James Walden also testified at the hearing. James stated that Walden, the defendant, was his brother and that Mary Walden, the victim, was his wife. At the evidentiary hearing, James stated that he met with Powell and discussed what his testimony would be. James testified that Powell told him that Walden would serve five to ten years if Walden accepted the plea offer. According to James, the conversation took place just before the grand jury proceedings. James stated that Powell told him about the alleged offer because James was family.

D. Nathaniel Walden's Testimony

¶ 17. Walden also testified at the PCR evidentiary hearing. He stated that Hull told him there was a plea offer for five to ten years, but advised Walden not to take it because he could "beat the case" because it was an accident. Walden testified that he did not understand the possible sentence he was facing at trial if he lost, and that he believed even if he lost he would only receive five to ten years. According to Walden, it was not until one of his neighbors in jail explained it to him that he understood he had a life sentence. Walden stated that if he had been fully advised by Hull, he would have accepted the manslaughter plea. He denied that he ever told Hull he would not take the plea. Walden also said that it was Hull who advised him to testify at trial, stating "He just wanted me to get on the stand ... [to] let me h[a]ng my own self."

¶ 18. Following the hearing and a review of the record, the circuit court denied Walden's PCR motion, finding that the evidence that Walden "produced does not show that [his trial counsel's] performance was deficient, but rather a form of trial strategy based upon the facts and evidence at his disposal. The defense counsel's conduct constituted reasonable professional assistance and his strategy was competent." Walden now appeals the circuit court's denial of his PCR motion.

STANDARD OF REVIEW

¶ 19. "The standard of review following an evidentiary hearing in a post[ ]conviction relief case is well settled ...." Brown v. State , 168 So.3d 884, 891 (¶ 20) (Miss. 2015). "When reviewing a lower court's decision to deny a petition for post[ ]conviction relief [an appellate court] will not disturb the trial court's factual findings unless they are found to be clearly erroneous." Id. "In making that determination, [the appellate court] must examine the entire record and accept that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court's finding of fact." Id. at 891-92 (¶ 20) (internal quotation mark omitted). "That includes deference to the circuit judge as the sole authority for determining credibility of the witnesses." Id. (internal quotation mark omitted).

DISCUSSION

¶ 20. In his pro se appellate brief, Walden argues that the circuit court erred when it denied his PCR motion in which he claims he received ineffective assistance of counsel during his trial. Specifically, Walden argues he received ineffective assistance of counsel because his trial counsel (1) advised him against taking a plea deal for manslaughter and (2) instead presented an accident defense at trial which was not viable under the facts of the case. However, we first address Walden's contention that collateral estoppel requires a finding of ineffective assistance of counsel.

I. Collateral-Estoppel Argument

¶ 21. Walden argues that the doctrine of collateral estoppel prevents the circuit court from finding that Walden's defense counsel was not ineffective for presenting an accident defense at trial. Walden's brief states that "[t]he original trial judge ... rejected an accidental defense ... and that ruling was upheld by both state High Courts." He further states that collateral estoppel "prevent[s] the hearing court from reaching a different legal conclusion of the High Courts based on the same set of facts." In his direct appeal, Walden argued that the trial court erred when it denied his accident-defense jury instruction. The trial court's decision to deny the accident instruction was affirmed by this Court in Walden v. State , 29 So.3d 17, 24 (¶ 22) (Miss. Ct. App. 2008), cert.

denied , 29 So.3d 774 (Miss. 2010). Walden concludes that because the trial court's denial of the accident instruction was affirmed on appeal, his trial counsel was ineffective for pursuing the accident theory during trial.

¶ 22. Indeed, collateral estoppel "protects litigants from the burden of re-litigating an identical issue with the same party or his privy and promotes judicial economy by preventing needless litigation." Gibson v. Williams, Williams & Montgomery P.A. , 186 So.3d 836, 845 (¶ 21) (Miss. 2016) (internal quotation marks omitted). However, this Court's determination in Walden's direct appeal that the trial court did not err in refusing the accident instruction is not identical to or dispositive of the issue whether Walden's trial counsel was ineffective for presenting an accident defense at trial. This Court's previous determination regarding the jury instruction does not require a finding that Walden's counsel was ineffective, but neither does it foreclose it. Collateral estoppel does not apply here.

¶ 23. Having addressed Walden's collateral-estoppel argument, we now turn to his arguments underlying his ineffective-assistance claim.

II. Ineffective Assistance of Counsel

¶ 24. Walden claims that his counsel advised him to reject a plea offer for manslaughter to instead pursue an accident defense that was inapplicable to his case and, as such, he received ineffective assistance of counsel.

¶ 25. To succeed on his ineffective-assistance-of-counsel claim, Walden must show that:

(1) his counsel's performance was deficient, and (2) this deficiency prejudiced his defense. The burden of proof rests with the defendant to prove both prongs. Under Strickland ,[ ] there is a strong presumption that counsel's performance falls within the range of reasonable professional assistance. To overcome this presumption, the defendant must show that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different.

Renfrow v. State , 202 So.3d 633, 636 (¶ 7) (Miss. Ct. App. 2016).

A. Alleged Plea Offer

¶ 26. Walden states that he proved with "uncontradicted evidence that a manslaughter plea was offered for 5-10 years and the shooting into the occupied dwelling [would] be dismissed." He then argues that he received ineffective assistance of counsel because his attorney advised him to reject the plea in favor of an accident defense.

¶ 27. When Walden appealed the summary dismissal of his initial PCR motion, the supreme court, in response to Walden's plea-bargain argument, stated that the "circuit judge found that Walden could not prove prejudice because the evidence at trial supported his conviction for murder. This conclusion was error." Walden , 201 So.3d 1042 at (¶ 10). The supreme court then discussed " Lafler v. Cooper , [in which] the United States Supreme Court addressed a similar claim ... explain[ing] that when a defendant claims his counsel provided ineffective assistance by advising the defendant to reject a plea offer, prejudice is established by showing that the outcome of the plea process would have been different with competent advice." Walden , 201 So.3d at 1044-45 (¶ 11) (quoting Lafler , 566 U.S. at 163, 132 S.Ct. 1376 ). Again, the supreme court concluded that "[t]he circuit judge ... erred by focusing a prejudice analysis on the evidence at trial, rather than the plea bargaining process relevant to this claim of ineffective assistance of counsel." Id. at 1046 (¶ 16). We note that Lafler differs from the instant case in that the parties in Lafler agreed that counsel was deficient for advising his client to reject the plea. Lafler , 566 U.S. at 163, 132 S.Ct. 1376. Here, however, the parties do not agree, and the evidence does not establish that there was any plea offer or that Walden's counsel advised him to reject the alleged plea offer.

¶ 28. Under Strickland , to succeed on his ineffective-assistance claim, even as it relates to the alleged plea bargain, Walden "must first prove that his counsel was deficient" prior to showing that the deficiency resulted in prejudice. Crawford v. State , 218 So.3d 1142, 1150 (¶ 18) (Miss. 2016) (emphasis added). This "requires showing that counsel made errors so serious he was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Id.

¶ 29. At the evidentiary hearing, both the prosecutor and defense attorney testified that they did not recall that there was any plea offer made. Powell testified that there was no record of an offer in Walden's case file. Hull testified that Walden stated he would not take any plea offer and further testified that if there was any plea offer made, it was turned down. As to credibility, James and Walden were the only witnesses to testify that there was a plea offer, and during the same proceeding, both testified that the other was lying about who shot first at the other.

¶ 30. As it relates to his claim that Hull advised him to reject a manslaughter plea deal, we cannot find that circuit court's determination that Walden failed to show his attorney's performance was deficient and therefore failed meet the Strickland standard required to show ineffective assistance was clearly erroneous, especially given the deference to the circuit court as the sole authority for determining credibility of the witnesses. This issue is without merit.

B. Accident Defense

¶ 31. Walden also states Hull was ineffective for pursuing an accident defense. On appeal, Walden states "[it's] obvious that the [circuit court] and the trial attorney do not understand the portion of [Walden's] testimony that prevent an accidental defense." As conveyed by the circuit court:

Walden argues that [Hull's] performance was deficient due to counsel not thoroughly reviewing the evidence, not informing him of the doctrine of transferred intent when evidence of intent was available, and putting forth an argument of accident/self-defense. Walden states that the statement from Maddie Brown establishing Walden's intent for murder was available to counsel well before trial, [and] that since evidence of intent was available[,] he should have been informed of the theory of transferred intent which would have made it clear that there was a probable chance that he could be found guilty of murder, and that neither accident or self-defense were viable defense theories because Walden armed himself and went to the confrontation.

On appeal, Walden interprets the circuit court's denial of his ineffective-assistance claim to say "that the trial attorney was reasonable to reject a manslaughter plea based on an accidental defense."

¶ 32. "Counsel's choice of whether or not to call certain witnesses, ask certain questions, or make certain objections falls within the ambit of trial strategy. This Court rarely second guesses trial counsel regarding matters of trial strategy."

Renfrow , 202 So.3d at 638 (¶ 18). Additionally and more specifically, a defendant is entitled to have the jury instructed on his theory of the case, and counsel's decision regarding "[w]hether to request a certain instruction generally is a matter of trial strategy." McCoy v. State , 147 So.3d 333, 347 (¶ 36) (Miss. 2014). Such decisions "fall within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim." Carr v. State , 873 So.2d 991, 1003 (¶ 27) (Miss. 2004) (internal quotation mark omitted).

¶ 33. Walden now claims that his trial counsel should not have presented an accident defense because of the doctrine of transferred intent and in light of his sister, Brown's, statement to the sheriff's office that Walden had stated to her his intention to kill his brother. Walden argued that this statement, which evidenced his intent to kill James, implicated the doctrine of transferred intent, and precluded an accident theory of defense, was available to his defense counsel before trial. However, at the PCR evidentiary hearing, Hull testified that this particular statement was not provided to him in discovery. Hull stated that it was not until he was cross-examining Brown at trial that he became aware of any evidence that would establish Walden's intent to kill James. Because Hull was unaware of the statement, he testified that the doctrine of transferred intent was not an issue in the case. Hull also testified that he believed what Walden had told him-that James shot at Walden first, and then Walden shot back in self-defense, accidentally shooting Mary. Hull stated he was not aware of any facts that would cause him to believe Walden possessed the intent to shoot James. At trial, when asked if he intended to kill Mary, Walden answered "no." Then, when asked if it was an accident, Walden testified that it "just w[as] an accident." Walden testified that he shot James in self-defense, and that he killed Mary accidentally. He maintained this same testimony at the PCR evidentiary hearing. He also admitted he was not aware of Brown's statement to the sheriff prior to its revelation at trial.

¶ 34. Following the evidentiary hearing, the trial court found that Hull's performance was not deficient, but rather a form of trial strategy based upon the facts and evidence at his disposal. Again, under our standard of review, we "accept that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court's finding of fact ... includ[ing] deference to the circuit judge as the sole authority for determining credibility of the witnesses." Brown , 168 So.3d at 891 (¶ 20). Having reviewed the record, including all of the evidence presented at the PCR motion hearing, we cannot say the circuit court's findings are erroneous. Walden did not show that Hull's performance was deficient, and Walden failed to overcome the presumption that Hull's performance fell within the range of reasonable professional assistance.

¶ 35. Again, that the trial court properly denied the accident-theory jury instruction as determined on direct appeal does not mean Walden's counsel was deficient for pursuing such a strategy. Rather, "having a trial strategy negates an ineffective assistance of counsel claim, regardless of counsel's insufficiencies." Renfrow , 202 So.3d at 636 (¶ 8). In addition to the deliberate-design murder instruction, the jury was also instructed on culpable-negligence manslaughter and self-defense. Thus, the accident defense, however inapplicable, was not Hull's only strategy, and the jury was instructed on alternate theories. This issue is without merit.

¶ 36. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


source: Caselaw Access Project

author: WESTBROOKS, J., FOR THE COURT:

license: Public Domain

text:
    In the Matter of the Estate of John M. KAYE, Deceased: John Morgan Kaye Jr., Executor, Appellant v. Patricia M. KAYE, Appellee
    NO. 2017-CA-00511-COA
    Court of Appeals of Mississippi.
    October 2, 2018
    ATTORNEY FOR APPELLANT: DEWITT T. HICKS JR.
    ATTORNEY FOR APPELLEE: HAL H. H. MCCLANAHAN III, Columbus
    BEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. John Morgan Kaye Jr. (John), as executor of the Estate of John M. Kaye (Jack), deceased, filed a petition to recover assets and for other relief against Patricia M. Kaye (Pat), Jack's wife, in the Lowndes County Chancery Court. Although neither the will nor Pat's power of attorney was contested, John claimed that Pat's inheritance should be rendered void because a confidential relationship existed between Jack and Pat. The chancellor found that no confidential relationship or fiduciary duty existed between Jack and Pat nor was there any undue influence exerted by Pat over Jack. John appeals. Finding no error, we affirm.

FACTS

¶ 2. Jack and Pat married in 1987 and remained married until Jack's death on January 20, 2012. Both Jack and Pat had children from previous marriages. Jack had two sons, John and William Samuel Kaye, as well as a daughter, Louise Harlan Kaye.

¶ 3. In early 2006, Jack fell backward down fourteen steps at his home. After his fall, in August 2006, Jack created a will. Instead of using Hunter Gholson, his long-term attorney, Jack switched his services to Hal H. H. McClanahan, Pat's attorney, because she believed Gholson's fees were too high. In his uncontested will, Jack left John, John's three sons, and Pat each one-fifth of his estate. Jack also devised Pat their marital home with all furnishings. In his will, Jack stated that he did not split the estate with William or Louise because William is independently wealthy and Louise, who is mentally handicapped, has a trust. On the same day Jack created the will, he executed a Power of Attorney appointing Pat as his attorney in fact.

¶ 4. In February 2007, Jack fell again and broke his hip. After this fall, Jack was placed in Trinity Place for rehabilitation. After an incident with the staff, Jack returned home. During this time, Jack was regularly treated by his physician, Dr. Frank Dailey. Dr. Dailey treated Jack from 2006 until his retirement in 2008.

¶ 5. In 2008, Jack created a joint account with Pat that included rights of survivorship. In 2009, Jack authorized UBS to transfer all assets from his solo account to the joint account. This authorization gave Pat the right to make decisions and jointly access the funds. Because Jack did not execute the document at the UBS office, he had the form notarized by Marilyn Reaves at a Regions Bank and sent back to UBS. Reaves testified that Jack alone came into the bank and signed the forms. Furthermore, she stated that she did not recall anyone accompanying Jack to the bank.

¶ 6. After Jack's death in 2012, his will was admitted to probate, and it was discovered that minimal funds remained in the UBS account. John brought an action against Pat claiming wrongful conversion. While John decided not to contest the will or the Power of Attorney, he requested the chancery court deny her assignment from the will: her fifth of the estate and the marital home. He also requested that the court require Pat to return the joint account to the amount of $1,210,371.91.

¶ 7. The chancellor court found that Pat committed no wrongdoing. John timely appeals.

STANDARD OF REVIEW

¶ 8. "The standard of review of chancery matters is limited."

Estate of Langston v. Langston , 141 So.3d 28, 31 (¶ 7) (Miss. Ct. App. 2014). "We will not disturb a chancellor's factual findings that are supported by substantial evidence." Id. "The chancellor's decision will be affirmed unless the chancellor abused [his] discretion, was manifestly wrong, or [his] findings were clearly erroneous, or [he] applied an erroneous legal standard." Id. "We review questions of law de novo." Id.

DISCUSSION

¶ 9. John raises four issues on appeal. First, he asserts that the chancellor committed manifest error in failing to find that a close relationship existed. Second, he asserts that the chancellor failed to apply established caselaw that when a close relationship exists in an inter vivos transfer the presumption of undue influence is established. Third, he asserts that the chancellor failed to shift the burden to the inter vivos grantee/beneficiary to prove by clear and convincing evidence the transfer was valid. Last, he asserts that the chancellor failed to apply the correct legal standard regarding the presumption of undue influence.

¶ 10. In his principal brief, John asserts there is a confidential relationship between Pat and Jack proven through the seven Dabney factors. The Mississippi Supreme Court describes a confidential relationship as:

[A] relation[ship] between two people in which one person is in a position to exercise a dominant influence upon the other because of the latter's dependency upon the former, arising either from weakness of mind or body, or through trust, the law does not hesitate to characterize such relationship as fiduciary in character. The dependency factor was emphasized again when we stated, "In determining whether or not a fiduciary or confidential relationship existed between two persons, we have looked to see if one person depends upon another."

In re Caspelich , 22 So.3d 1199, 1205 (¶ 20) (Miss. Ct. App. 2009) (quoting Madden v. Rhodes , 626 So.2d 608, 617 (Miss. 1993) ).

Morever, this Court has held that "a confidential relationship between spouses does not create a presumption that one spouse used undue influence over the other to obtain an inter vivos gift." Estate of Langston v. Langston , 141 So.3d 28, 31 (¶ 9) (Miss. Ct. App. 2014). Although "[i]t is undoubtedly true that a husband or a wife may exercise undue influence upon the other spouse ... it is the contestant's burden to show that the surviving spouse used undue influence." Id. (internal quotation mark omitted). So, regardless of whether there was a confidential relationship because of Jack and Pat's status as husband and wife, it is John's burden to prove that Pat used undue influence in Jack's creation of the joint account.

¶ 11. This Court has held that "[w]ith regard to both testamentary and inter vivos gifts, undue influence will be found where a spouse has used undue methods for the purpose of overcoming the free and unrestrained will of the other spouse, so as to control his or her acts and to prevent him or her from being a free agent." Id. (internal quotation mark omitted). Here, it seems that Jack was "a free agent." Id. The chancellor considered the testimonies of many witnesses including John, Jack's friends, UBS representatives, and the notary public. Additionally, he considered the physical evidence, especially considering the fact that the majority of the funds in the account were used while Jack was still alive for the couples' medical and living expenses. Furthermore, testimony shows that Jack spoke with the UBS representative about creating the joint account, and it was Jack alone who went to the notary to transfer the funds from his solo account to the joint account.

¶ 12. After review of the record, we, like the chancellor, find this evidence unpersuasive to prove that Pat used undue influence in the creation of the joint account. Accordingly, we affirm the chancery court's decision.

¶ 13. AFFIRMED.

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

      The Langston estate matters have had a long history in the Court of Appeals and the Mississippi Supreme Court. A case regarding the same estate was first raised on appeal to this Court in 2010, after a chancery court determined that a confidential relationship between spouses existed, and therefore set aside the creation of certain joint tenancies. In re Estate of Langston , 57 So.3d 657, 663 (¶ 28) (Miss. Ct. App. 2010). In a five-to-four decision, this Court opined that the chancellor's automatic presumption of undue influence solely based on the existence of a confidential relationship was improper, ultimately reversing and rendering the chancery court's holding void. Id. In 2011, the Mississippi Supreme Court decided to review the case on a writ of certiorari. Estate of Langston v. Williams , 57 So.3d 618 (Miss. 2011). The Supreme Court held that a confidential relationship between spouses does not create a presumption of undue influence in inter vivos transfers, affirmed the Court of Appeals in part and reversed the Court in part, remanding the case to the chancery court for a new trial. Id. at 622 (¶ 18). In the second trial, the chancery court found no undue influence and therefore upheld the inter vivos gifts, and on appeal this Court affirmed. Estate of Langston v. Langston , 141 So.3d 28 (Miss. Ct. App. 2014).

      These factors include:
      (1) [W]hether one person has to be taken care of by others, (2) whether one person maintains a close relationship with another, (3) whether one person is provided transportation and has their medical care provided for by another, (4) whether one person maintains joint accounts with another, (5) whether one is physically or mentally weak, (6) whether one is of advanced age or poor health, and (7) whether there exists a power of attorney between the one and another.
      In re Estate of Dabney v. Hataway , 740 So.2d 915, 919 (¶ 12) (Miss. 1999).


author: GREENLEE, J., FOR THE COURT:

text:
    Owen SCARBROUGH, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01667-COA
    Court of Appeals of Mississippi.
    October 2, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS,
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON, Jackson
    BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. Owen Scarbrough challenges his conviction for one count of fondling and two counts of sexual battery of his step-granddaughter.

¶ 2. On appeal, he alleges that: (1) the weight of the evidence does not support his Count I and Count II guilty verdict; and (2) the evidence is insufficient to show that he held a position of trust or authority over his step-granddaughter for his Count III guilty verdict.

FACTS AND PROCEDURAL HISTORY

¶ 3. Seventeen-year-old Mary packed her suitcase to visit her grandmother and step-grandfather-Dorothy and Owen Scarbrough-in Shelby, Mississippi. As she packed, she quietly handed her father a note. It read:

Daddy
I have something I need to tell. You may get upset but please hear me out on this. Every time at grandma Dorothy's, when no adult are around or everyone's sleep in the house. Owen will tease, flirt and eventually takes off all my clothes. And then, he will begin fingering and suck on my [breast] to pleasure me. I really don't like this at all. I'm afraid if I don't let him, he will do something to harm. I know you taught me better but you never prepare me to handle this like this. I don't know what to do. Can you please help me?

¶ 4. Mary's alarmed mother contacted the sheriff's department in Bolivar County, Mississippi. Mary then described three incidents to the interviewing officer:

(1) when she was fourteen-years-old, Scarbrough brought her to a shack in his backyard where he lifted up her bra and sucked on her breasts;
(2) when she was fifteen-years-old, Scarbrough lifted up her shirt, sucked on her breasts, and digitally penetrated her; and
(3) when she was seventeen-years-old, Scarbrough brought her into the den of his home where Mary performed oral sex on him.

¶ 5. After Mary made the allegations, the department's investigator, Michael Williams, referred Mary to a children's forensic medical center where she saw a therapist. Investigator Williams then questioned Scarbrough and compiled a report, which indicated that Scarbrough admitted to sexual contact with Mary but disputed the details and time frame.

¶ 6. The grand jury indicted Scarbrough for three counts that tracked the three incidents described by Mary:

Count I: fondling ( Mississippi Code Annotated section 97-5-23 );
Count II: sexual battery of a child between fourteen and sixteen years of age ( Mississippi Code Annotated section 97-3-95(1) ); and
Count III: sexual battery of a child under eighteen years of age where the person is in a position of trust or authority ( Mississippi Code Annotated section 97-3-95(2) ).

¶ 7. At the November 2016 trial, three witnesses testified: Mary; Mary's mother; and Investigator Williams. Mary testified about her note to her father, the three distinct incidents during which Scarbrough engaged in sexual contact with her, and her relationship with Scarbrough. Mary's mother testified about her decision to contact the police based on Mary's note, Mary's shy and withdrawn personality, and Scarbrough's closeness to the family as a grandfather figure. Investigator Williams testified about Mary's complaint, his referral of Mary to the forensic center, and his interview of Scarbrough.

¶ 8. The jury found Scarbrough guilty on all three counts. For Count I, the circuit court sentenced him to fifteen years in the Mississippi Department of Corrections' (MDOC) custody with five years suspended and ten years to serve, and a $1,000 fine. For Count II, the circuit court sentenced him to thirty years in MDOC's custody with fifteen years suspended and fifteen years to serve, and a $1,000 fine. For Count III, the circuit court sentenced him to thirty years in MDOC's custody with ten years suspended and twenty years to serve, and a $1,000 fine. All sentences are to run consecutively.

¶ 9. Scarbrough moved for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which the circuit court denied. He appeals, asserting that: (1) the weight of the evidence does not support his Count I and Count II guilty verdict; and (2) the evidence is insufficient to show that he held a position of trust or authority over Mary for his Count III guilty verdict.

DISCUSSION

I. Does the weight of the evidence support Scarbrough's Count I and Count II guilty verdict?

¶ 10. When reviewing a challenge to the weight of the evidence, the Court will disturb a jury verdict only "when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Little v. State , 233 So.3d 288, 291 (¶ 21) (Miss. 2017) (quoting Bush v. State , 895 So.2d 836, 843 (¶ 18) (Miss. 2005) ). We review the evidence in the light most favorable to the verdict. Roberts v. State , 229 So.3d 1060, 1068 (¶ 29) (Miss. Ct. App. 2017).

¶ 11. Scarbrough argues that the verdict was against the overwhelming weight of the evidence because there was no physical evidence or corroborating testimony. He asserts that Mary's claims were "unreliable and unbelievable."

¶ 12. The State presented testimony from Mary in which she described her note to her father, the three distinct incidents during which Scarbrough engaged in sexual contact with her, and her relationship with Scarbrough. Our supreme court has noted that "the totally uncorroborated testimony of a rape victim is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other evidence." Christian v. State , 456 So.2d 729, 734 (Miss. 1984). Mary's testimony itself is sufficient to find Scarbrough guilty. Furthermore, Mary's mother and Investigator Williams testified. Their testimony detailed Mary's mother's decision to contact the police, Mary's complaint and Investigator Williams's interview of Scarbrough. Scarbrough cross-examined each witness but called none of his own. "It is the jury's job to balance the weight and credibility of the witnesses." Latiker v.State , 918 So.2d 68, 73 (¶ 12) (Miss. 2005) (citing Shamblin v. State , 601 So.2d 407, 412 (Miss. 1992) ). We find that the verdict is not so contrary to the overwhelming weight of the evidence that allowing it to stand would sanction an unconscionable injustice. Therefore, the circuit court did not err in denying Scarbrough's motion for a JNOV or, in the alternative, a new trial.

II. Is evidence sufficient to show Scarbrough held a position of trust or authority over Mary for his Count III guilty verdict?

¶ 13. To determine whether evidence is sufficient to sustain a guilty verdict, we "will consider the evidence in the light most favorable to the State, giving the State 'the benefit of all favorable inferences that may reasonably be drawn from the evidence.' " Jones v. State , 991 So.2d 629, 634 (¶ 11) (Miss. Ct. App. 2008) (quoting Collier v. State , 711 So.2d 458, 461 (¶ 11) (Miss. 1998) ). "The relevant question then becomes whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Id. (quoting Bush , 895 So.2d at 843 (¶ 16) ).

¶ 14. On Count III, the jury was instructed on the crime of sexual battery of a child under eighteen years of age where the person is in a position of trust or authority. The crime stems from Mississippi Code Annotated section 97-3-95(2), which reads:

A person is guilty of sexual battery if he or she engages in sexual penetration with a child under the age of eighteen (18) years if the person is in a position of trust or authority over the child including without limitation the child's teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach.

(Emphasis added). Our supreme court stated that this list of possible positions of trust or authority is not exhaustive and "merely provides examples of positions that would fit the statute ...." Campbell v. State , 125 So.3d 46, 52 (¶ 11) (Miss. 2013). To resolve whether a person holds one of those positions, we "look to all the evidence presented and the totality of the circumstances ...." Id. at (¶ 14).

¶ 15. Scarbrough argues that the State failed to prove that he occupied a position of trust or authority over Mary, as required by section 97-3-95(2). He asserts that he was not "baby-sitting Mary at the time he engaged in oral sex," that Mary's mother was solely responsible for her, and that Mary was simply a guest in his home.

¶ 16. But the State presented significant evidence to the contrary: Mary referred to Scarbrough as her "step-grandfather"; Mary spent the first year of her life in Scarbrough's home; Mary treated Scarbrough in the same manner she treated Scarbrough's wife, her biological grandmother; Scarbrough walked Mary's mother down the aisle at her wedding instead of her biological father. Our supreme court noted that "[t]he jury is the sole judge of the weight of the evidence and the credibility of the witnesses." Lima v. State , 7 So.3d 903, 910 (¶ 35) (Miss. 2009) (quoting Mohr v. State , 584 So.2d 426, 431 (Miss.1991) ). It is our conclusion, therefore, that a rational trier of fact could find, under the totality of the circumstances, that Scarbrough did in fact hold a position of trust or authority over Mary. The circuit court did not err in denying his motion for a JNOV or, in the alternative, a new trial.

CONCLUSION

¶ 17. We find that the weight of the evidence supported Scarbrough's Count I and Count II guilty verdict and that the evidence was sufficient to show Scarbrough held a position of trust or authority over Mary for his Count III guilty verdict. Thus, we affirm the circuit court's judgment.

¶ 18. AFFIRMED.

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

      To protect the victim's privacy, we use a fictitious name.


author: WILSON, J., FOR THE COURT:

text:
    Laquita BURGESS, Appellant v. McKinley WILLIAMSON, Appellee
    NO. 2017-CA-00788-COA
    Court of Appeals of Mississippi.
    October 2, 2018
    ATTORNEY FOR APPELLANT: GAY L. POLK-PAYTON, Forrest County
    ATTORNEY FOR APPELLEE: MICHAEL CLAYTON BAREFIELD, Long Beach
    BEFORE GRIFFIS, P.J., WILSON AND TINDELL, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. Laquita Burgess and McKinley Williamson have a daughter, Elizabeth, who was born in 1999. Prior to 2015, Burgess and Williamson had an extra-judicial custody and support arrangement. In 2015, Williamson petitioned the Jones County Chancery Court to determine custody and support. The court awarded physical custody to Williamson, visitation to Burgess, and joint legal custody. The court also ordered Burgess to pay child support to Williamson. One year later, Williamson filed a petition for contempt alleging that Burgess was behind on child support. Burgess answered and sought a modification of her support obligation. The day before the hearing on the petition and counterclaim, Burgess filed a motion to dismiss alleging that the court lacked jurisdiction. Burgess did not attend the hearing the following day, although her attorney was present. The chancery court denied Burgess's motion to dismiss and found her in contempt for failing to pay child support.

¶ 2. On appeal, Burgess alleges that the chancery court lacked jurisdiction and erred in setting child support. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Burgess and Williamson have never been married but have a daughter, Elizabeth, who was born in Forrest County in 1999. Burgess allowed Williamson to have physical custody of Elizabeth in 2003, and Elizabeth lived with Williamson and his wife in Georgia from 2003 to 2009. Williamson's wife is a member of the United States Air Force, and in January 2010 the Williamsons moved to Ramstein Air Base in Germany with Elizabeth and their other two children. Burgess consented to Elizabeth's move to Germany with Williamson.

¶ 4. On January 20, 2015, Williamson filed a petition for custody and child support in the Jones County Chancery Court. Although he and Elizabeth still lived in Germany, Williamson asserted that he was a resident of Jones County and that the Jones County Chancery Court had jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). See Miss. Code Ann. § 93-27-201 (Rev. 2013). Williamson sought sole physical and joint legal custody of Elizabeth. He alleged that Elizabeth's passport had recently expired and that he had been unable to obtain Burgess's written consent to renew the passport. As a result, Elizabeth was "unable to leave Germany." Williamson also sought an order requiring Burgess to pay child support.

¶ 5. Burgess filed an answer. She denied that Williamson was a resident of Jones County, but she admitted that the chancery court had jurisdiction, and she filed a counterclaim for physical custody of Elizabeth and child support. Burgess alleged that she was a resident of Forrest County, although she was then stationed at Fort Meade in Maryland as a member of the United States Army.

¶ 6. After a trial, the chancery court entered a final judgment on September 8, 2015, granting physical custody to Williamson with joint legal custody and visitation rights to Burgess. The court ordered Burgess to pay $827 in child support each month, "[i]n accordance with statutory guidelines, as applied to [Burgess's] Rule 8.05 Financial Declaration." Neither party appealed the court's final judgment.

¶ 7. In November 2016, Williamson filed a petition for contempt and requested entry of a wage withholding order against Burgess. Williamson alleged that Burgess had unilaterally reduced her monthly support payments and had failed to make some payments altogether. He requested that the court find Burgess in contempt and enter a judgment for the arrearage and his attorney's fees. By this time, Burgess had relocated to a United States Army base in Germany, where she was served by certified mail.

¶ 8. Burgess answered Williamson's petition and counterclaimed for a modification of support based on an alleged change in her income. In her answer, Burgess "denied," without explanation, Williamson's allegation that the court had jurisdiction under the UCCJEA. However, in her counterclaim, she expressly acknowledged that the chancery court had "jurisdiction of the parties." She also waived any issues related to service of process pursuant to an agreed order setting the case for trial on May 4, 2017.

¶ 9. On May 3, 2017-one day before trial-Burgess filed a one-page motion to dismiss for lack of jurisdiction in which she alleged (1) that neither she nor Elizabeth had "ever resided in ... Mississippi" and (2) that "[t]he Country of Germany ha[d] assumed jurisdiction as the child ha[d] lived there always." The only legal authorities cited in the motion were Mississippi Code Annotated section 13-3-57 (Rev. 2012), which addresses service of process on nonresidents, and section 93-11-67 (Rev. 2013), which addresses personal jurisdiction and service of process in actions to enforce child support orders.

¶ 10. Burgess noticed her motion for a hearing the next day-the day of trial-but she did not appear in court. Her attorney informed the court that he had met with Burgess the day before, and she made clear that she would not be attending the trial. Counsel stated that he had "filed [the] motions that [Burgess] asked [him] to" and had done "everything in [his] ability ... to represent [Burgess]." The court denied Burgess's motion to dismiss, stating that she had appeared and defended the case in 2015 and did not appeal the final judgment that determined custody and support. Williamson then testified briefly as to Burgess's failure to pay support, and the hearing concluded.

¶ 11. The chancery court entered a final judgment of contempt on May 9, 2017. The court ruled that it retained jurisdiction pursuant to the UCCJEA. The court also found that Burgess had waived any objection to personal jurisdiction. The court entered judgment against Burgess for $11,539, consisting of a child support arrearage of $6,852 and attorney's fees of $4,687. The court also entered a wage withholding order against Burgess.

¶ 12. Burgess retained new counsel and filed a timely notice of appeal. Her statement of issues lists three issues: (1) "the chancery court erred in assuming jurisdiction," (2) "the chancery court erred in awarding custody," and (3) "the chancery court erred in setting child support." However, her five-page brief addresses only the first and third issues.

ANALYSIS

¶ 13. "When reviewing a decision of a chancellor, this Court applies a limited abuse of discretion standard of review." Mabus v. Mabus , 890 So.2d 806, 810 (¶ 14) (Miss. 2003). We will affirm the decision if it is "supported by substantial evidence" unless the chancery court abused its discretion, clearly or manifestly erred, or applied an "erroneous legal standard." Id. at 819 (¶ 53). "However, on issues of law, our standard of review is de novo." Stroh v. Stroh , 221 So.3d 399, 406 (¶ 17) (Miss. Ct. App. 2017).

I. Jurisdiction

¶ 14. Burgess's appellate brief fails to develop her claim that "the chancery court erred in assuming jurisdiction." She devotes less than one page to this issue, and she cites no authority in support of her argument. Indeed, it is not clear whether she is raising an issue of personal jurisdiction or subject matter jurisdiction. Because she fails to cite authority or develop this argument, the issue is waived. See Hill v. State , 215 So.3d 518, 524 (¶ 10) (Miss. Ct. App. 2017) (citing M.R.A.P. 28(a)(7) ), cert. denied , 229 So.3d 712 (Miss. 2017).

¶ 15. Moreover, it is clear that Burgess waived any possible objection to personal jurisdiction by appearing and defending the case on the merits in the chancery court, asserting a counterclaim in which she expressly alleged that the chancery court had "jurisdiction of the parties," and waiving all issues related to service of process in the agreed order setting the trial. See Miss. Code Ann. § 93-5-201 (Supp. 2017) ("In a proceeding to ... enforce a support order ..., a tribunal of this state may exercise personal jurisdiction over a nonresident individual ... if: (2) The individual submits to the jurisdiction of this state by consent in a record, by entering a general appearance or by filing a responsive document having the effect of waiving any contest to personal jurisdiction ...."); see also Ridgeway v. Hooker , 240 So.3d 1202, 1208 (¶ 25) (Miss. 2018) ("Personal jurisdiction is an individual right that can be waived."). Burgess took all of those steps before she filed a vague, single-page motion to dismiss for lack of jurisdiction. Therefore, in the chancery court, she waived any objection based on personal jurisdiction.

¶ 16. Burgess has never expressly challenged the chancery court's subject matter jurisdiction under the UCCJEA. In any event, the present contempt action concerns only nonpayment of child support, not custody, so the UCCJEA is inapplicable. See Vaile v. Eighth Judicial Dist. Court ex rel. Cty. of Clark , 118 Nev. 262, 44 P.3d 506, 515 (2002) (recognizing that "a court might order one party to pay child support to another in the exercise of its personal jurisdiction over the parties," even if the court lacked subject matter jurisdiction over issues of custody). A chancery court clearly has subject matter jurisdiction to enforce its own child support order, and Burgess points to nothing in the record that would have divested the chancery court of subject matter jurisdiction in this case.

¶ 17. Finally, if Burgess is trying to argue that the chancery court lacked jurisdiction to enter the original (September 8, 2015) final judgment awarding custody and support, her claim is barred by the doctrine of res judicata. See Phillips v. Kelley , 72 So.3d 1079, 1083-84 (¶¶ 16-18) (Miss. 2011) (following Travelers Indemnity Co. v. Bailey , 557 U.S. 137, 129 S.Ct. 2195, 174 L.Ed.2d 99 (2009) ). When a party enters an appearance, is "given a fair chance to challenge" the court's jurisdiction, and litigates the case to a final judgment, that party "cannot challenge [the court's jurisdiction in a later proceeding] by resisting enforcement of the [final judgment]." Travelers , 557 U.S. at 153, 129 S.Ct. 2195. "[A]ny challenge to the ... court's jurisdiction should have been taken up" in the original proceeding or "on direct appeal from the original order." Phillips , 72 So.3d at 1084 (¶ 17) (citing Travelers , 557 U.S. at 152, 129 S.Ct. 2195 ). Once a case is litigated to a final judgment, and no appeal is taken, a party who participated in the original litigation cannot collaterally attack the court's jurisdiction in a later proceeding. Id. at 1084 (¶ 18) ("[S]ubject matter jurisdiction ... may not be attacked collaterally.") (quoting Travelers , 557 U.S. at 152, 129 S.Ct. 2195 ); see also Dep't of Human Servs. v. Shelnut , 772 So.2d 1041, 1045 (¶ 13) (Miss. 2000) ("The principles of res judicata apply to questions of jurisdiction as well as to other issues whether the questions relate to jurisdiction of the subject matter or jurisdiction of the parties."); Restatement (Second) of Judgments § 12 (1982) ("When a court has rendered a judgment in a contested action, the judgment precludes the parties from litigating the question of the court's subject matter jurisdiction in subsequent litigation [subject to three narrow exceptions, inapplicable in this case].").

¶ 18. Burgess answered Williamson's original petition for custody and child support, she filed a counterclaim, the case proceeded to trial, and the chancery court entered a final judgment on September 8, 2015. In that judgment, the chancery court expressly ruled that it had jurisdiction. Burgess could have challenged the chancery court's jurisdiction in that proceeding, and she could have appealed the final judgment. But she did neither. She is now barred from raising jurisdictional issues that she failed to pursue in the 2015 proceeding. See Phillips , 72 So.3d at 1083-84 (¶¶ 16-18) ; Travelers , 557 U.S. at 152-53, 129 S.Ct. 2195.

¶ 19. In summary, the chancery court clearly had subject matter jurisdiction to decide the contempt petition at issue in this appeal, and Burgess waived any objection to personal jurisdiction. She waived the issue in the chancery court by defending the case on the merits without preserving any jurisdictional objection and by asserting a counterclaim that expressly alleged that the court had personal jurisdiction. She also waived the issue on appeal by failing to develop any clear argument. Finally, the doctrine of res judicata bars any jurisdictional objection to the September 8, 2015 final judgment.

II. Custody

¶ 20. As noted above, Burgess's second issue in her statement of issues asserts that "the chancery court erred in awarding custody." However, she fails to address that issue in the body of her brief. Therefore, the issue is procedurally barred. Sumrall v. State , 758 So.2d 1091, 1094 (¶ 6) (Miss. Ct. App. 2000). Moreover, the chancery court did not award custody in the judgment of contempt that is presently on appeal. Custody was determined in the 2015 final judgment, which Burgess did not appeal. Therefore, the issue is beyond the scope of this appeal. See Chasez v. Chasez , 957 So.2d 1031, 1037 (¶ 14) (Miss. Ct. App. 2007) (holding that "issues [that] should have been brought on direct appeal of [a] divorce judgment" cannot be re-litigated in a subsequent contempt proceeding). Finally, as noted above, the issue of custody is now moot since Elizabeth is now nineteen years old. See supra n.3. In summary, the issue is both procedurally barred and without merit.

III. Child Support

¶ 21. Burgess's final claim is that "the chancery court erred in setting child support." Under this heading, she alleges that the chancery court failed to make written findings to support an upward deviation from the statutory guidelines in its original support award. However, the chancery court did not deviate from the guidelines; rather, the court followed the guidelines by ordering Burgess to pay fourteen percent of her adjusted gross income. See supra (¶ 6) & n.2. More important, Burgess's argument is procedurally barred. Any claim that the chancery court erred in setting child support should have been raised in an appeal from the 2015 judgment, not on appeal in this contempt action. See Chasez , 957 So.2d at 1037 (¶ 14). Finally, as she failed to appear at the May 4, 2017 hearing, Burgess offered no evidence in support of her counterclaim for modification of child support. See generally McEwen v. McEwen , 631 So.2d 821, 823 (Miss. 1994) (discussing the standard for modifying child support). This issue is also procedurally barred and without merit.

IV. Attorney's Fees

¶ 22. Williamson requests an award of attorney's fees amounting to half of the attorney's fee award allowed by the chancery court. Based on Burgess's contempt, the chancery court awarded Williamson attorney's fees in the amount of $4,687. Consistent with our common practice, we award Williamson an additional $2,343.50 for attorney's fees on appeal. See Heisinger v. Riley , 243 So.3d 248, 260 (¶ 48) (Miss. Ct. App. 2018) ; Riley v. Riley , 196 So.3d 1159, 1164 (¶ 23) (Miss. Ct. App. 2016) ("Generally, on appeal this Court awards attorney's fees of one-half of what was awarded in the trial court.").

CONCLUSION

¶ 23. Because Burgess did not appeal the 2015 judgment awarding custody and support to Williamson, her challenges to the original award of custody and support are barred. In addition, she waived any claim that the chancery court lacked personal jurisdiction in this proceeding. Therefore, the judgment of the chancery court is affirmed. In addition, we award Williamson appellate attorney's fees of $2,343.50.

¶ 24. AFFIRMED.

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

      The record in this appeal does not include a transcript of the 2015 trial.

      The guidelines provide that support for one child should be fourteen percent of the non-custodial parent's adjusted gross income. See Miss. Code Ann. § 43-19-101(1) (Rev. 2015). Burgess reported adjusted gross income of $5,906.25.

      Indeed, Elizabeth's "custody" is no longer subject to modification, as she turned eighteen shortly after Williamson filed the present petition for contempt. See Miss. Code Ann. § 93-27-102(b) (Rev. 2013) (defining a "child" for purposes of custody determinations under the UCCJEA as "an individual who has not attained eighteen (18) years of age").

      At the May 4, 2017 hearing in the chancery court, Williamson introduced an order showing that Burgess had filed some type of "application" in a German court. However, the order does not describe the nature of the proceeding and shows that it was "withdrawn" in February 2017. Consistent with the limited information contained in the order, Williamson testified that Burgess voluntarily dismissed the case.

      Moreover, "[a] judgment is presumed to have resolved all issues in favor of the validity of the judgment." Shelnut , 772 So.2d at 1047 (¶ 20).

      Burgess had another option: she could have "ignore[d] the complaint and summons" in the original action to determine custody and support. Shelnut , 772 So. 2d at 1045 (¶ 14). If she had done so, and if a judgment had been entered against her, she then could have "challenge[d] that judgment on jurisdictional grounds in a collateral proceeding ... to enforce the judgment," including a contempt proceeding such as this one. However, that is not the option Burgess chose. She chose to participate in the original litigation, so she is now bound by the September 8, 2015 judgment.


text:
    Richard PARKER a/k/a Richard Bernell Parker a/k/a Richard B. Parker, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-01097-COA
    Court of Appeals of Mississippi.
    October 2, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, Jackson
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS
    BEFORE LEE, C.J., FAIR AND WILSON, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. Richard Parker decided to hunt on someone else's property without permission. A game warden was called about the trespass and found Parker and Parker's truck. Parker, a prior convicted felon, had a rifle in his truck. Following a jury trial in the Forrest County Circuit Court, Parker was convicted of unlawful possession of a firearm by a convicted felon. Parker's appointed appellate counsel filed a Lindsey brief, certifying that he has thoroughly searched the record and found "no arguable issues" for appeal. Lindsey v. State , 939 So.2d 743, 748 (¶ 18) (Miss. 2005). After an independent and thorough review of the record, we agree that there are no arguable issues and that the evidence was sufficient to support the conviction. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 14, 2014, Jyntre Williamson, a game warden for the Mississippi Department of Wildlife, Fisheries, and Parks, received a call reporting a suspected trespasser on Bill McCrary's land in Forrest County. Williamson arrived at McCrary's property, where McCrary and his son were parked. A red Toyota truck was parked nearby, and Williamson approached the truck to investigate the alleged trespasser. Richard Parker was standing next to the truck when Williamson approached. Parker told Williamson that he was there to hunt. Williamson noticed a rifle in the front seat of the Toyota. Williamson used his iPhone to take pictures of Parker and the rifle. Parker was arrested for trespassing. The Forrest County Sheriff's Department later released the rifle to its owner.

¶ 3. Parker was indicted for unlawful possession of a firearm by a convicted felon. See Miss. Code Ann. § 97-37-5 (Rev. 2014). At trial, the State introduced evidence of Parker's prior felony conviction. The State then called Williamson and a deputy sheriff to testify. Parker did not testify or call any witnesses. The jury found Parker guilty, and the circuit court sentenced him to ten years in the custody of the Department of Corrections, with five years to serve, five years suspended, and five years of post-release supervision.

ANALYSIS

¶ 4. Lindsey , 939 So.2d at 748 (¶ 18), establishes the "procedure to govern cases where appellate counsel represents an indigent criminal defendant and does not believe that his or her client's case presents any arguable issues on appeal." Parker's appointed appellate counsel complied with that procedure and certified that there are no arguable issues for appeal. Pursuant to Lindsey , counsel sent Parker a copy of the brief and advised him that he could file a pro se brief. Parker has not filed a brief.

¶ 5. Parker was found standing next to his truck, and there was a rifle on the front seat of the truck. No one else was present, and Parker stated that he was there to hunt. The State also proved that Parker had a prior felony conviction. Clearly, there is sufficient evidence to support the jury's verdict finding Parker guilty of unlawful possession of a firearm by a prior convicted felon. Furthermore, like Parker's appellate counsel, we have "conducted an independent and thorough review of the record, and we conclude that there are no issues that warrant reversal." Taylor v. State , 162 So.3d 780, 787 (¶ 18) (Miss. 2015). Therefore, Parker's conviction and sentence are AFFIRMED .

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

      Parker declined to stipulate to the prior conviction. The State showed that, less than three months prior to his arrest in this case, Parker was convicted after pleading guilty to possession of a controlled substance, a felony.


author: FAIR, J., FOR THE COURT:

text:
    Louis Edward BOURGEOIS, Appellant v. CITY OF BAY ST. LOUIS CIVIL SERVICE COMMISSION, Appellee
    NO. 2017-CC-00492-COA
    Court of Appeals of Mississippi.
    October 2, 2018
    ATTORNEYS FOR APPELLANT: WILLIAM ALEX BRADY II, MICHELLE ELIZABETH LUBER, Long Beach
    ATTORNEY FOR APPELLEE: JENNIFER HUGHES SCOTT, Jackson
    BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. The City of Bay St. Louis fired Louis Bourgeois after he asked a police officer to run a license plate number for him. Bourgeois said a vehicle had been following him, and he feared it related to his job as a fire inspector. But it turned out that the man who owned the vehicle was dating Bourgeois's former girlfriend, and the City concluded that Bourgeois's story about being followed was a pretext to pursue a personal vendetta. The City's civil service commission affirmed Bourgeois's firing, and the circuit court affirmed the commission. We affirm as well.

DISCUSSION

¶ 2. Bourgeois presents thirteen issues for our review, which we have reorganized and consolidated for clarity and economy.

1. Controlling Law

¶ 3. Bourgeois and the City disagree as to whether his termination was governed by the Mississippi Code or by a city ordinance. Bourgeois contends that the general civil service statute, Mississippi Code Annotated sections 21-31-1 through 21-31-75 (Rev. 2015) controls, and the City failed to comply with its requirements. The City, however, points out that the statute only applies to certain categories of municipalities, listed in section 21-31-1(2), and Bay St. Louis does not fit into any of them. The City contends that it is instead governed by a local and private law, House Bill 1367 of the 1989 legislative session, and by the City ordinance implementing a civil service system as permitted by the aforementioned law.

¶ 4. In Laurel v. Samuels , 469 So.2d 530, 531 (Miss. 1985), the Mississippi Supreme Court observed that cities not listed in section 21-31-1(2) are not required to follow the civil service statutes. The court stated that "[f]rom a reading of all of the code section establishing that civil service system, it becomes apparent that it was intended only to cover employees of the fire and/or police departments of the municipalities coming within its purview." Id. Section 21-31-1(2) lists of eight types of municipality that are mandated to create a civil service commission, so long as the municipality has a fully paid fire and police department. Bay St. Louis does not fit into any of the eight classifications.

¶ 5. We encountered the same issue in the recent case of Necaise v. City of Waveland , 170 So.3d 616, 618-19 (¶ 10) (Miss. Ct. App. 2015), where Waveland's civil service commission was also authorized by a local and private law. We held:

First and foremost, it is necessary to note that this case does not turn on any application of Mississippi statutory law. Mississippi Code Annotated section 21-31-1 (Rev. 2007) mandates that certain municipalities must have a civil service commission. Similarly, Mississippi Code Annotated section 21-31-3 (Rev. 2007) gives qualified municipalities the authority to adopt a civil service commission. The Waveland Civil Service Commission is unique in that it is not a creature of either statute. Instead, the Commission is the product of Waveland City Ordinance 251 ("the ordinance"), which was authorized by House Bill 1770 of the 1994 Mississippi legislative session. Consequently, neither the provisions nor the procedures set forth in the statutes that pertain to civil service commissions apply to this case. Section 10 of the ordinance states that it "shall not be construed to invoke the provisions of sections 21-31-1 through 21-31-75, which deal with civil service, nor to invoke the law of any court decisions made pursuant thereto."

Id. (quoting Prendergast v. City of Waveland , 146 So.3d 1021, 1022 (¶¶ 1-2) (Miss. Ct. App. 2014) ). Obviously, Waveland's situation was not so unique as we suggested-section 10(2) of House Bill 1367 (authorizing Bay St. Louis to create a civil service system) also provides that it "shall not be construed to invoke the provisions of [s]ections 21-31-1 through 21-31-75, ... which deal with civil service, nor to invoke the law of any court decisions made pursuant thereto."

¶ 6. The City is correct that it is governed by House Bill 1367 and its own ordinance and not by the general civil service statutes of the Mississippi Code.

2. Motion to Recuse All Commissioners

¶ 7. Prior to the civil service commission hearing, Bourgeois moved to recuse all three commissioners. There were arguments from both sides, and two exhibits entered into evidence on the motion. Ultimately, all three commissioners declined to disqualify themselves. Bourgeois raised this issue before the circuit court, but it declined to review it based on dictum in this Court's decision in City of Vicksburg v. Cooper , 909 So.2d 126, 130 (¶ 15) (Miss. Ct. App. 2005). There, we suggested that the issue of recusal, which was procedurally barred in that case, "would probably still have been procedurally improper pursuant to the limited scope of review established under Mississippi Code Annotated [section] 21-31-23 (Rev. 2001)." Id. The statute limits review "to the determination of whether the judgment or order of removal ... was or was not made in good faith for cause and no appeal to [the circuit] court shall be taken except upon such ground or grounds." Id.

¶ 8. As we held in the prior issue, the statute does not control because House Bill 1367, which authorized Bay St. Louis's civil service commission, expressly provides that it does not. For the City of Bay St. Louis, House Bill 1367 requires that an appeal to the circuit court "shall be confined to the determination of whether the commission acted in accordance with this act and the ordinance." Although the ordinance and House Bill 1367 do not address recusal of commissioners, we do not see this as precluding our review of whether due process required the commissioners to disqualify themselves.

¶ 9. Still, Bourgeois advocates for a stricter standard for recusal than was actually required. He argues that the standard should be the same as it is for judicial recusal-whether the commissioner's impartiality might be questioned by a reasonable person knowing all the circumstances. See, e.g. , West v. State , 131 So.3d 583, 586-87 (¶ 10) (Miss. Ct. App. 2013). But the standard is actually much more lenient. In United Cement Company v. Safe Air for the Environment Inc. , 558 So.2d 840, 842 (Miss. 1990), our supreme court explained that administrative hearings "are not trials and they are not governed by the same rules which apply in courts of law." "[T]here is a presumption that the officers conducting the hearing and the members of the [commission] behave honestly and fairly in the conduct of the hearings and in the decision-making process[,]" and that presumption is not overcome "[a]bsent some showing of personal or financial interest ... or evidence of misconduct ...." Id. ; see also Byrd v. Greene Cty. Sch. Dist. , 633 So.2d 1018, 1022-23 (Miss. 1994).

¶ 10. The only concerns raised by Bourgeois were that the commissioners were appointed by the mayor who decided to terminate him, and that each of the three commissioners had a close relative who was an employee of the city. As to the first concern, the commissioners were appointed lawfully according to House Bill 1367 and the city ordinance, and appointment by the mayor presents no actionable concerns because it is not evidence of a personal or financial interest or evidence of misconduct. See Byrd , 633 So.2d at 1022. Likewise, the fact that each of the commissioners had family members who were also city employees, without more, fails to meet the test. See id. We can find no error in the commissioners' refusal to disqualify themselves.

3. Pretermination Procedure

¶ 11. We next address several issues raised by Bourgeois concerning the procedural aspects of his initial termination by the fire chief, which we consolidate.

¶ 12. Most of Bourgeois's contentions here share a common defect: they are premised on general civil service statutes of the Mississippi Code. As we held in the prior issue, the City is governed by House Bill 1367 of 1989 and its own ordinance.

House Bill 1367 specifically provides that it "shall not be construed to invoke the provisions of [s]ections 21-31-1 through 21-31-75, ... which deal with civil service, nor to invoke the law of any court decisions made pursuant thereto." Most of the code sections cited by Bourgeois do not appear to have direct analogues in either House Bill 1367 or the Bay St. Louis ordinance. Thus, Bourgeois's arguments based on the Mississippi Code are without merit.

¶ 13. Bourgeois does make several contentions along the same line that are directed to the City ordinance or to departmental policy. He alleges he was suspended and then fired by the fire chief without being given a "written notification of the intended job action before it becomes effective," which the city ordinance requires "in the absence of critical circumstances"; Bourgeois received written notice when he was fired, three days later. He also contends that a fire department policy required the disciplinary proceedings be initiated by the deputy fire chief, and that a pre-disciplinary consultation with the city human resources director was required "if warranted." So far as the record reveals, the deputy fire chief had no involvement with Bourgeois's termination, and the human resources director was only consulted after Bourgeois's suspension by the fire chief (but prior to his termination).

¶ 14. Even if we were to concede these points, Bourgeois ignores the provision of the City's civil service ordinance, which provides that "inadvertent and minor deviations from established procedures which do not substantively impair an employee's rights shall not be the basis for overturning a job action." Bourgeois's complaints are, at best, concerning minor procedural aspects that do not speak to the underlying merits of his firing. And the deviation from the procedure outlined, even if accepted as true, did not substantially impact its overall fairness. There can be no question that Bourgeois was made aware of the allegations against him well in advance of the administrative hearing before the mayor and the evidentiary hearing before the commission. We can find no reversible error here.

4. Criminal Records of Other Employees

¶ 15. The commission refused to allow Bourgeois to elicit testimony concerning the criminal backgrounds of other individuals working at the fire department on the basis that it was irrelevant. Bourgeois did not proffer the particulars, but he suggested that at least one individual working for the fire department had a prior felony conviction. Bourgeois contends that this evidence would have shown that lesser punishments were appropriate and, essentially, that the City was willing to employ people who had done worse than what it fired him for.

¶ 16. Bourgeois offers no authority in support of this argument, and as a result it is deemed abandoned. See, e.g., Duncan v. State , 939 So.2d 772, 779 (¶ 25) n.3 (Miss. 2006). But, notwithstanding the procedural bar, we see no reversible error.

¶ 17. "It is well settled that administrative bodies have the discretionary authority to apply procedural and evidentiary rules in a flexible manner so as to most efficiently carry out their responsibilities." Miss. Dept. of Human Servs. v. McDonald , 24 So.3d 378, 381 (¶ 9) (Miss. Ct. App. 2009) (citing McGowan v. Miss. State Oil & Gas Bd. , 604 So.2d 312, 318 (Miss. 1992) ). It is equally well settled that, even in court proceedings, error in admitting or excluding evidence will not amount to reversible error unless a substantial right of a party is affected. See, e.g. , M.R.E. 103.

¶ 18. Bourgeois did not proffer any of this evidence, but even assuming that the fire department employed someone with a prior felony conviction, whether or not someone with a criminal record works at the fire department has little to no bearing on whether Bourgeois's termination was in good faith for cause. Bourgeois suggests on appeal that criminal offenses may have been committed while the individuals were employed by the City, but he made no such suggestion when he offered the evidence to the commission. And Bourgeois does not even suggest that the offenses committed by other employees related to or were committed during the course of their employment with the city. This issue is procedurally barred and without merit.

5. Fact-Finding and Merits of the Termination

¶ 19. Finally, we address the numerous issues Bourgeois has raised regarding the commission's findings of fact and the underlying merits of his termination. At the outset we note that our review is "confined to the determination of whether the commission acted in accordance with" House Bill 1367 of the 1989 legislative session and the City's ordinance establishing a civil service commission. Waveland , 170 So.3d at 618-19 (¶ 10). In so doing, we apply the familiar standard of review for decisions of administrative agencies-"whether or not [the] decision is supported by substantial evidence or is arbitrary or capricious, etc. or in other words whether or not it was made in good faith for cause." City of Jackson v. Froshour , 530 So.2d 1348, 1355 (1988) (quoting City of Meridian v. Davidson , 211 Miss. 683, 695, 53 So.2d 48, 53 (1951) ).

¶ 20. "So long as substantial evidence exists, an agency's finding must be allowed to stand even though there might be room for disagreement on that issue." Miss. Pub. Serv. Comm'n v. Merchants Truck Line, Inc. , 598 So.2d 778, 782 (Miss. 1992) (internal quotation mark omitted). "Substantial evidence" means something more than a "mere scintilla" or suspicion. Pub. Empls.' Ret. Sys. v. Marquez , 774 So.2d 421, 425 (¶ 13) (Miss. 2000).

¶ 21. After the hearing, the commission rendered a written opinion detailing its findings. On appeal, Bourgeois challenges several specific findings, including whether he was followed by the vehicle, a point on which he offered corroborating testimony. As to whether he was followed, Bourgeois seems to misapprehend the actual finding of the commission. It did not find that he was never followed; rather, it found that Bourgeois knew he had a personal dispute with the owner and had falsely led a police officer to believe it could be work-related. There is more than substantial evidence in the record in support on this point-Bourgeois asked that the tag be run while he was off-duty; he had never reported being followed to his supervisors; he admitted he knew the vehicle was connected to his ex-girlfriend because he had seen it at her house. And Bourgeois omitted those details when he requested the tag be run, then a short time later he confronted his ex-girlfriend with the information he had obtained.

¶ 22. Bourgeois challenges several other findings. He contends that there was no City policy specifically prohibiting what he did nor any evidence he knew of such a policy. He also disputes that the "running of the plate" actually involved the National Crime Information Center (NCIC) database, that it was a violation of NCIC policies and federal law, and that his actions potentially exposed the City to liability. Although the commission did make all of these findings, the central allegation and the central finding supporting Bourgeois's termination was that he misused his City employment for personal advantage. As we explained above, that finding was supported by substantial evidence and is, in and of itself, a sufficient basis to support the decision to terminate Bourgeois's employment.

¶ 23. Bourgeois also takes issue with the commission's observations that his comments to the public and the local newspaper had harmed the City, because the reports referenced in the opinion were not introduced at the hearing. We find any error on this point to be harmless given the clear support in the record for Bourgeois's termination.

¶ 24. Finally, Bourgeois claims his termination had an ulterior motive. In support of his theory, Bourgeois offered a voice recording of a meeting between him and the Fire Chief into evidence. In the recording, the Fire Chief is heard saying that if a local restaurant were shut down, "there would be hell to pay." Bourgeois urges this encounter was the real reason he was fired, but it was a point of fact for the commission, not this Court, to decide. We cannot retry factual disputes on appeal. We emphasize again that "[s]o long as substantial evidence exists, an agency's fact finding must be allowed to stand even though there might be room for disagreement on that issue." Merchants Truck Line , 598 So.2d at 782.

¶ 25. The commission's decision was supported by substantial evidence and must be affirmed on appeal.

¶ 26. AFFIRMED.

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