author: ISHEE, J„

text:
    In the Matter of the Last Will and Testament and ESTATE OF Mack H. McCORKLE, Sr., Deceased: Donald McCorkle, Appellant, v. Ruth BEESON, Administratrix of the Estate of Mack McCorkle, Sr., Deceased, Appellee.
    No. 2008-CP-00615-COA.
    Court of Appeals of Mississippi.
    Sept. 22, 2009.
    Rehearing Denied Dec. 15, 2009.

      Donald McCorkle, pro se.
    Jamie G. Houston, Lynn P. Ladner, Jackson, T. Mack Brabham, attorneys for appellee.
    Before LEE, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J„

for the Court.

¶ 1. Following a two-day trial, the Chancery Court of Amite County found that the last will and testament of Mack McCorkle Sr. (Mack) was valid. Aggrieved by the judgment, Mack’s son, Donald McCorkle (Donald) appeals from the judgment. He presents the following three issues for on appeal:

I.Whether the chancery court erred in finding that Mack possessed the requisite testamentary capacity to execute the will.
II. Whether the chancery court erred in finding that the will was not the product of undue influence.
III. Whether the chancery court erred in refusing to admit the records from the Veteran’s Administration into evidence.

Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 27, 2003, Mack died at the age of eighty. He left a last will and testament that bequeathed his entire estate, except for nominal bequests to his sons, to his daughter and executor of his will, Ruth Beeson (Ruth). In the will, Mack left two dollars to each of his three surviving sons: Donald, Harvey McCorkle (Harvey), and Mack McCorkle Jr. (Mickey). Ruth, as the executrix named in the will, filed a petition to probate the will, and Donald responded with a complaint contesting its validity. Donald alleged that Mack did not have the testamentary capacity to execute the will because Mack had been diagnosed with paranoid schizophrenia.

¶ 3. At the trial of the will contest, Donald did not call any of his own witnesses. Instead, he called Ruth and Harvey to testify adversely. Ruth testified that Donald and Mack had grown apart after Donald tried to have Mack committed for selling timber on Mack’s land. Donald filed a commitment proceeding in 1994, at which two doctors testified that Mack was not suffering from any mental illness, and the court found no basis to Donald’s claim that Mack needed to be committed. Following the hearing, Donald made a number of unsuccessful attempts to get the VA to institutionalize Mack. Donald again sought to have his father committed in 1997. At the second commitment hearing, Donald attempted to offer Mack’s VA records, which Donald had obtained without permission, as proof that Mack should be committed. Mack was again examined by two doctors, and the ease was dismissed. Mack then filed a claim of invasion of privacy against Donald, and a jury returned a verdict in favor of Mack and awarded him $175,000.

¶ 4. Ruth described her relationship with Mack as a “normal daughter-daddy relationship,” and she said that they were not closer than any other parent and child. Mack had given Ruth a general power of attorney because he feared that if anything happened to him, Donald would take control of his assets. She also shared a joint bank account with him and had access to his safe-deposit box. There was no evidence that she was involved in creating any of the powers that Mack granted her or that she used any of them for her benefit. Ruth said she would visit her father approximately every other month. According to Ruth, her father was capable of doing everything on his own, and she did not have to care for him.

¶ 5. Before executing the will that is the subject of the present appeal, Mack had previously executed a will in which he left all of his possessions to Ruth. According to Ruth, she was not involved in making the first will. She did not know that he had made a will until Mack told her about it afterwards. Mack later called her and said that he wanted to make a new will because he thought the commitment proceeding might be used to void the first will. He told her what he wanted in the will over the phone, and she had the lawyer for whom she worked to draft the will. She then mailed Mack a copy of the will for him to execute.

¶ 6. John Shivers had known Mack for about two years when Mack died. He said that they had met when Mack had purchased two tractors from Shivers’s family business, Liberty Tractor. According to Shivers, Mack was a nice, helpful, and determined man, who was somewhat eccentric, and who seemed to be in good health. Shivers had heard Mack talk about how he and Donald had been in and out of court, and Shivers said that it seemed like there was a lot of friction between Mack and Donald. Shivers described Mack as being very capable of getting around to places on his own and as being fully capable of making his own decisions.

¶7. Audrey Lee Reese (“Butch”) had known Mack ever since Butch negotiated an oil and gas lease from him in 1994. Butch said that he knew Mack very well. He never thought that Mack had any mental problems, and Butch testified on behalf of him during the two competency proceedings instituted by Donald. Butch also believed that Mack was in good physical health, and he described how Mack would exercise and do work on Mack’s land. Butch was also aware of the friction that existed between Mack and Donald. Butch was the person who Mack went to when he wanted to execute his will. Mack discussed the will and then signed it in front of Butch, Charles Ray Reese (Charles), and Charles Bert Greene (Bert). Butch said that Mack knew exactly what he was doing and that he completely understood the will.

¶ 8. Butch’s brother, Charles, corroborated his account of Mack. Charles said that Mack knew who his children were, understood and appreciated the provisions of the will, and was competent on the day that he executed the will. Charles testified that Mack did not “have that much high praise for his sons” and that Mack told him that they only deserved two dollars each. Bert, the other subscribing witness to the will, offered testimony similar to that of Butch and Charles. He testified that Mack understood the nature and effect of his actions in executing the will and that there did not appear to be anything wrong with Mack’s mind.

¶ 9. According to Donald, he was acting in Mack’s best interest. He said that the rift between him and his father arose because Mack wanted to cut timber on land that he had agreed to sell to Donald and his brothers. Donald’s brother, Harvey, testified that, initially, nobody wanted the timber on the land to be cut. However, Harvey also testified that the situation had gotten out of control and that everything has been about greed. Harvey thought that, in hindsight, Mack should have been allowed to do whatever he wanted with the land.

¶ 10. The chancellor found that Mack did possess the testamentary capacity to execute the disputed will. The chancellor further noted that Mack’s mental condition was sufficient even if it was an error to exclude the VA records. Additionally, the chancellor found that the will was not the product of undue influence. In the event that the ruling on the issue of the confidential relationship was in error, the chancellor found that Ruth had presented sufficient evidence to overcome any presumption of undue influence that arose due to Ruth’s relationship with Mack. It is from this judgment that Donald appeals.

STANDARD OF REVIEW

¶ 11. Our review of a chancellor’s judgment is limited. This Court reviews the chancellor’s decisions under an abuse of discretion standard. Townsend v. Townsend, 859 So.2d 370, 372(¶ 7) (Miss.2003) (citing McNeil v. Hester, 753 So.2d 1057, 1063(¶ 21) (Miss.2000)). This Court will not disturb the findings of a chancellor “unless the chancellor was -manifestly wrong, clearly erroneous, or applied the wrong legal standard.” Id. (citing McNeil, 753 So.2d at 1063(¶ 21)).

DISCUSSION

I. Testamentary Capacity

¶ 12. Donald first argues that the chancellor erred in finding that Mack possessed the testamentary capacity to execute the will. In determining whether Mack possessed the testamentary capacity to execute a will, the chancellor had to consider three factors: (1) whether the testator had “the ability at the time of the will to understand and appreciate the effects of [his] act”; (2) whether the testator had “the ability at the time of the will to understand the natural objects or persons to receive [his] bounty and their relation to [him]”; and (3) whether the testator was “capable of determining at the time of the will what disposition [he] desired to make of [his] property.” Holmes-Pickett v. Holmes-Price, 961 So.2d 674, 679(¶ 12) (Miss.2007) (quoting Smith v. Averill, 722 So.2d 606, 610(¶ 12) (Miss.1998)).

¶ 13. The burden of proving capacity is as follows:

The proponents of the will meet their burden of proof by the offering and receipt of the will into evidence and the record of probate. The proponents make a prima facie case solely on this proof. The burden then shifts to the contestants to overcome the prima facie case, but the burden of proof remains with the proponents to show by a preponderance of evidence that the testator had capacity.

Id. at (¶ 13) (citations omitted).

¶ 14. In the present case, the chancellor found by clear and convincing evidence that Mack possessed the testamentary capacity to execute the will. The chancellor found that Mack was competent even if it was error to exclude the VA documents indicating that he suffered from paranoid schizophrenia. The chancellor noted that Mack had come before the court in April 1995, and he appeared to be very competent. This was approximately one year before Mack executed the will being challenged and contemporaneous to his execution of an almost identical will that completely disinherited Donald. Furthermore, the chancellor found that it was uncontradicted that, on the day that Mack executed the will: (1) he had the ability to understand and appreciate the effects of his actions; (2) he knew the natural objects of his bounty and the extent of his holdings; and (8) he discussed his dispositions with disinterested third parties.

¶ 15. We find that the chancellor’s ruling is supported by the evidence and is not the result of manifest error, abuse of discretion, or the application of an erroneous legal standard. We also agree that, even if the chancellor had admitted the VA documents, the weight of the evidence leads to the conclusion that Mack had the capacity to execute the will. Accordingly, we find no error with the ruling that Mack possessed the testamentary capacity to execute the will, and we find that this issue is without merit.

II. Undue Influence

¶ 16. Next, Donald argues that the chancellor was in error in refusing to find that a confidential relationship existed between Mack and Ruth. Several factors must be considered in determining whether a confidential relationship exists between the parties. Those factors are the following:

(1) whether 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.

Holmes-Pickett, 961 So.2d at 680(¶ 17) (quoting Wright v. Roberts, 797 So.2d 992, 998(¶ 18) (Miss.2001)).

¶ 17. In the present case, Ruth and Mack lived in separate states, and the testimony indicated that she did not take care of him. Ruth said that she and her father had a close relationship, but she described it as a “normal daughter-daddy relationship” and said they were no closer than any other parent and child. Ruth took her father to the hospital only when she was in Amite County. Mack placed Ruth on a joint checking account with him, but there was no evidence that she ever used it for anything other than to pay her father’s bills. She also never opened her father’s safe-deposit box until she did so with Donald, approximately one month after Mack’s death. As for Mack’s health, he had previously suffered a heart attack, and there was testimony that he had been diagnosed with paranoid schizophrenia. However, the testimony also indicated that he was neither physically or mentally weak. As for Mack’s age, he died at the age of eighty and had made the will approximately six-and-one-half years prior to his death. Lastly, there did exist between Mack and Ruth a power of attorney; however, there was also no evidence that Ruth had ever used it.

¶ 18. The chancellor recognized that, based on the seven factors listed above, a confidential relationship could have existed between Ruth and her father. Nevertheless, the chancellor found that Ruth did not occupy a confidential relationship with her father “under the spirit of the law.” The chancellor then stated that, in the event that her ruling was in error, she would address the presumption of undue influence that arises following the finding of a confidential relationship. The chancellor found by clear and convincing evidence that there was no undue influence exerted by Ruth on her father.

¶ 19. If, from the above-mentioned factors, it is evident that a confidential relationship existed, then there arises a presumption of undue influence. Holmes-Pickett, 961 So.2d at 680(¶ 18). The burden then shifts to the proponent of the will to show by clear and convincing evidence:

(1) Good faith on the part of the grantee/beneficiary;
(2) Grantor’s full knowledge and deliberation of his actions and their consequences; and
(3) Advice of (a) competent person, (b) disconnected from the grantee and (c) devoted wholly to the grantor/testator’s interest.

Id. (quoting Murray v. Laird, 446 So.2d 575, 578 (Miss.1984)).

¶ 20. The chancellor noted her concern with the fact that Ruth: (1) held power of attorney for Mack, (2) shared a bank account with him, (3) shared a safe-deposit box with him, and (4) was the person to whom Mack communicated the provisions of his will. However, the chancellor pointed out that there was no evidence Ruth ever used the power of attorney, the bank account — except to pay Mack’s bills — , or the safe-deposit box. Also, the most recent will mirrored the provisions of the will that Mack had executed the previous year, with which Ruth had no dealing. Ruth merely typed the will according to the dictation of the attorney for whom she worked, and then she mailed the will to her father so he could execute it in Mississippi. Additionally, the chancellor found that Ruth never did anything to try to override her father’s wishes.

¶ 21. Despite the concerns, the chancellor found that Ruth acted in good faith. Previously, the chancellor had found that Mack fully understood and appreciated the nature of his actions and their consequences. As for the third factor, the chancellor noted that while Ruth typed the will, she had no involvement in its execution. Mack had it in his control only, and he sought advice from three disinterested individuals with whom he would regularly consult regarding such matters. Namely, he talked to Butch and Charles, who were in the oil and gas business, and he talked to Bert, who was in real estate.

¶ 22. Ruth certainly satisfied a few factors that could lead to a finding of a confidential relationship between her and her father. However, the evidence also indicated that despite Mack’s advanced age and prior health problems, he was strong-willed and managed to handle his affairs on his own. After considering the facts of this ease, we find no error with the chancellor’s determination that there did not exist a confidential relationship between Ruth and Mack. Furthermore, we agree with the chancellor that the evidence clearly and convincingly established the fact that Ruth did not exert any undue influence over her father. We find that this issue is without merit.

III. Veteran’s Administration Records

¶23. Lastly, Donald claims that the chancellor was in error in refusing to admit into evidence the VA records that show that Mack had been diagnosed with paranoid schizophrenia. Donald argues that the records should have been allowed in evidence as exceptions to the hearsay rule.

¶ 24. The admission or exclusion of evidence is generally within the discretion of the trial court, and such decision will not be reversed absent an abuse of that discretion. Irby v. Travis, 935 So.2d 884, 905(¶ 56) (Miss.2006) (citing Miss. Dep’t of Transp. v. Cargile, 847 So.2d 258, 263(¶ 16) (Miss.2003)). Upon review, this Court will only reverse a case based on the admission or exclusion of evidence if the action “results in prejudice and harm or adversely affects a substantial right of a party.” Blake v. Clein, 903 So.2d 710, 722(¶ 30) (Miss.2005) (quoting K-Mart Corp. v. Hardy, 735 So.2d 975, 983(¶ 21) (Miss.1999)).

¶ 25. The basis for the chancellor’s refusal to admit the VA records into evidence was that the records were not properly authenticated. As the chancellor stated in the bench ruling, there had been no testimony from a doctor or from a VA official who could interpret the records and explain to the court what a diagnosis of paranoid schizophrenia carried with it. On appeal, Donald submits a Certification of Official Records from a director of a VA Regional Office, which he offers as authentication of the VA records that he attempted to introduce at trial. He requests that this Court accept this document as a supplement to the trial record. However, this Court may not consider information that is not contained in the record. Davis v. Christian Bhd. Homes of Jackson, Miss., Inc., 957 So.2d 390, 398(¶ 15) (Miss.Ct.App. 2007) (citing Hardy v. Brock, 826 So.2d 71, 76(¶ 26) (Miss.2002)). Not only was the certification document not contained in the appellate record, but it was also not introduced before the chancery court. Accordingly, we decline to consider this new information because the document is not part of the record and was not considered at trial.

¶ 26. Furthermore, the chancellor stated that she would have found that Mack possessed the testamentary capacity to execute the will even if the VA records had been admitted into evidence. The chancellor considered the fact that Mack had been diagnosed with paranoid schizophrenia and considered it alongside the testimony as to his competency at the time he executed the will, ultimately concluding that Mack possessed the necessary testamentary capacity despite the diagnosis.

¶ 27. As recognized by the chancellor, the fact that Mack might have been diagnosed with paranoid schizophrenia would not completely prohibit him from executing a will. “Even where a conservatorship is granted for reasons having to do with the testator’s mental instability, we do not now question the proposition that a person under a conser-vatorship may have ‘lucid intervals’ during which he may validly execute a will.” Mask v. Elrod, 703 So.2d 852, 856(¶ 18) (Miss.1997) (quoting Gholson v. Peters, 180 Miss. 256, 267, 176 So. 605, 606 (1937)). Therefore, even in the case of a testator with mental problems, a will may still be validly executed. In the present case, Mack’s mental problems had not risen to the level of requiring a conservatorship. All the testimony indicated that he was perfectly competent and understood all of his actions in executing his will. Therefore, we agree with the chancellor’s ruling that, even if she were to consider the VA records, Mack possessed the requisite testamentary capacity to execute the will. We find no merit to this issue.

¶ 28. THE JUDGMENT OF THE CHANCERY COURT OF AMITE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . The chancellor noted that a jury trial for the will contest was waived.

      . At the time of trial, two of Mack's sons, Mickey and James McCorkle, were deceased. He was survived by his sons, Donald and Harvey, and his daughter, Ruth.

      . The chancellor actually found that Ruth met a higher burden than necessary to prove Mack's testamentary capacity. As stated, the proponent of the will is only required to prove the testator’s capacity by a preponderance of the evidence. See Holmes-Pickett, 961 So.2d at 679(¶ 13).


source: Caselaw Access Project

author: IRVING, J„

license: Public Domain

text:
    Duffy MORF, Broker, and Karen Preston Morf, Salesperson, Appellants, v. NORTH CENTRAL MISSISSIPPI BOARD OF REALTORS, INC., Board of Directors, Appellee.
    No. 2007-CA-00839-COA.
    Court of Appeals of Mississippi.
    Dec. 1, 2009.
    Certiorari Denied Feb. 18, 2010.

      Lisa A. Reppeto, Jackson, Joe M. Davis, New Albany, Bryan P. Buckley, attorneys for appellants.
    Nicholas S. Brown, Carter C. Hitt, Oxford, attorneys for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

IRVING, J„

for the Court.

¶ 1. The motion for rehearing is denied. The previous opinion of this Court is withdrawn, and this opinion is substituted therefor.

¶ 2. This appeal arises from a suit filed by Duffy Morf and Karen Preston Morf against the North Central Mississippi Board of Realtors, Inc. (the Board). Duffy is the broker for a real estate office in Oxford, Mississippi, and Karen is a realtor in the same office. The Morfs’ suit was filed in an effort to challenge sanctions levied against them by the Board. After hearing evidence, the Lafayette County Chancery Court found in favor of the Board and dismissed the Morfs’ suit with prejudice. The Morfs appeal, alleging that the court erred: (1) in granting the Board’s motion for a directed verdict and (2) in applying the law with regard to the Board’s failure to adhere to its own regulations and bylaws.

¶ 3. Finding error, we reverse and remand for further proceedings consistent with this opinion.

FACTS

¶ 4. In 2001 and 2002, the Morfs joined the Board. At the same time, the Morfs joined the Mississippi Association of Realtors (MAR) and the National Association of Realtors (NAR). Membership in these organizations grants the Morfs the right to call themselves “realtors.” Membership also grants them use of the Multiple Listing Service (MLS), as well as other benefits.

¶ 5. In May 2005, the Morfs were charged with improperly extending an MLS listing without the consent of the owner in violation of the Board’s rules. Thereafter, Karen was found to have violated the Board’s rules, and Duffy was found guilty of failing to properly supervise her. Karen and Duffy were each fined and assigned other sanctions; in addition, Karen was placed on “probation” for one year.

¶ 6. Less than a year later, in May 2006, the Morfs were again charged with violating the Board’s rules. This time, Karen was accused of entering two properties into the MLS when she was not authorized by the seller to do so, and Duffy was again charged with failing to properly supervise Karen. According to the Morfs, the property was inadvertently entered into the system by an assistant at the Morfs’ real estate office. The assistant was supposed to enter the information in “suspension,” a process whereby the listings would not actually be submitted to the MLS. The information was entered on Thursday, May 11, and Friday, May 12. Over that weekend, Karen discovered that the listings had incorrectly been submitted to the MLS. The Morfs stated that they worked immediately to have the listings removed, and both listings were taken down by Monday, May 15. The Board has not presented any evidence contradicting the Morfs’ explanation of what happened. The Board’s representative admitted at trial that no one except the Morfs had suffered any harm as a result of the improper listings.

¶7. The Board advised the Morfs that they were being charged with violating the Board’s rules because of the improper listings. The Morfs were told to attend a hearing on May 31, 2006. However, the hearing was not held until early June. After the hearing, the Morfs were found to be guilty of violating the Board’s rules. For failing to properly supervise Karen, Duffy was assessed a fine of fifteen hundred dollars and given a forty-five-day suspension from the MLS. Duffy was also required to attend a mandatory orientation session. Karen was expelled from membership with the Board for one year, which means that Karen will not be able to use the title of realtor and will not be able to access the MLS and its benefits during that year. Furthermore, Karen’s reinstatement by the Board is not guaranteed. The Board’s rules also require that anyone in the Morfs’ office will be unable to use the MLS and other services until Karen is reinstated by the Board or until she leaves the Oxford office.

¶ 8. After exhausting all remedies with the Board, the Morfs appealed the Board’s decision to the Lafayette County Chancery Court. The court noted multiple times throughout the course of the trial that the Board’s regulations were difficult to understand and a “mess.” Regardless, and with little in the way of explanation, the court found in favor of the Board and dismissed the Morfs’ complaint.

¶ 9. Additional facts, as necessary, will be related during our discussion and analysis of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 10. At the close of the Morfs’ case, the Board moved for a directed verdict. Although the Board moved for a directed verdict, the Board should have moved “for a dismissal on the ground that upon the facts and the law the [Morfs had] shown no right to relief.” M.R.C.P. 41(b). Therefore, we proceed under the standard of review for an involuntary dismissal pursuant to Rule 41(b). In Gulfport-Biloxi Regional Authority v. Montclair Travel Agency, Inc., 937 So.2d 1000, 1004-05(¶ 13) (Miss.Ct.App.2006) (citing Stewart v. Merchants National Bank, 700 So.2d 255, 259 (Miss.1997)), this Court held:

A judge should grant a motion for involuntary dismissal if, after viewing the evidence fairly, rather than in the light most favorable to the plaintiff, the judge would find for the defendant. Id. (emphasis added). “The court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiffs evidence were all the evidence offered in the case.” Id. In reviewing a trial court’s grant or denial of a Rule 41(b) motion for involuntary dismissal, we apply the substantial evidence/manifest error standards. Id.

Our supreme court has also held that “questions of law are reviewed de novo, and the reviewing court will reverse if the law has been applied or interpreted erroneously.” Martin v. Lowery, 912 So.2d 461, 464(¶ 7) (Miss.2005) (citing Miss. Transp. Comm’n v. Fires, 693 So.2d 917, 920 (Miss.1997)).

¶ 11. Further, the Mississippi Supreme Court has explained the procedures that a private organization such as the Board must follow in punishing its members:

[I]t is highly desirable that private organizations, such as MLS and the Board, have the right to discipline members for violations of standards of professional conduct as set out by the constitution, bylaws, rules and regulations of the respective organizations. However, we also are of the opinion that before a fine can be imposed a private association must have a schedule of maximum fines that may be imposed to which schedule each member has agreed to be bound by joining the association. To hold that an association might arbitrarily prescribe fines for each individual offense as it sees fit would make possible and invite an abuse of authority. A fixed, reasonable fine, in the nature of liquidated damages, for injuries sustained because of unprofessional or unethical conduct would be sustained.

Multiple Listing Serv. of Jackson, Inc. v. Century 21 Cantrell Real Estate, Inc., 390 So.2d 982, 986 (Miss.1980).

¶ 12. Having reviewed the record and the relevant rules and regulations, we conclude that the Board acted arbitrarily in punishing the Morfs. Specifically, we find that the Board did not act in accordance with its own rules in disciplining the Morfs.

¶ 13. At the outset, we note that the rules used by the Board appear to consist primarily of three documents, two of which are specific to the Board. First, the Board has its own Rules and Regulations, and second, the Board has its own Bylaws. In addition, the Bylaws specifically state that the Code of Ethics and Arbitration Manual (the Code), which is promulgated by the NAR, is considered a part of the governing rules of the Board. Confusingly, the Board’s Rules and Regulations and Bylaws also reference a Code of Ethics that is supposed to have been published by the Board. However, no such document exists before us, and the Board’s representative stated at trial that the Code of Ethics simply refers to the Board’s Rules and Regulations and Bylaws.

¶ 14. In short, the Board utilizes a variety of documents, none of which clearly explain their relationship to the other rules. In particular, the Board’s own documents make it difficult to tell which punishments are to be imposed for which violations. The chancellor recognized this throughout the trial of this matter; he eventually opined that not even the Chief Justice of the United States Supreme Court would be able to sort through the chaos of rules promulgated by the Board. However, the chancellor ultimately ruled in the Board’s favor, although with little explanation for why he did so, as can be seen from his bench ruling:

You got all sorts of procedures in everything that you have got. This has just been a hodgepodge, but it’s up to me to determine whether or not due process was had. Whether or not the penalty— if due process was had, whether or not the penalty imposed upon the Morfs was arbitrary and capricious.
I came up here this morning early, and I went through the Ethics Manual.... And after reviewing it and reviewing the others, the Court is going to find that due process was had and it was not arbitrary and capricious; and I’m going to allow the ruling of the Board of Realtors to stand.

¶ 15. The major dispute in this case concerns two essential issues: whether section seven of the Rules and Regulations applies to the Morfs’ conduct, and if not, whether the sanctions imposed are consistent with the punishment allowed by all of the Board’s governing documents.

¶ 16. We agree with the chancellor that section seven most likely should not apply to the Morfs’ conduct. Section seven of the Rules and Regulations reads as follows:

Section 7 — Compliance with Rules
Compliance with Rules: For failure to abide by these MLS Rules and Regulations and any violations within a quarter, the following sanctions may be imposed for non-compliance. (Amended 10/0U)
1st [0]ffense — A warning issued to Participant that offense has occurred and that additional sanctions will be imposed if failure to comply with the rules is not corrected within one (I) business day. For repeat offenses by the same agency in a four-month period, no warning call is warranted.
2nd [Ojffense — $50.00 fíne and Participant and/or subscriber will appear before the MLS Committee. Failure to appear before the MLS Committee will lead to suspension of service and additional fines and sanctions will be determined by the MLS Committee and Board of Directors.
3rd Offense and Subsequent Office [sic] — $100.00 fine levied against Participant and mandatory sixty (60) day suspension.
Fourth [0]ffense within any four-month period will result in Participant and all affiliated subscribers being suspended from access to and use of the MLS service for a period of up to 60 days.
Any listings which does [sic] not fulfill the minimum requirements of the service, or contains false or misleading information, may be deleted from the service with approval by a majority vote of the MLS [C]ommittee and with 24 hours notice to Participant.
For more than four (4) sanctions in any three (3) month period the violation will be submitted to the MLS [C]ommittee for possible additional sanctions including possible suspension of services as outlined under Section 9.
For failure to pay any sanctions levied under Section 7 or 9 within 24 working business hours the service shall be suspended for sixty (60) days unless notification in advance must be approved by the MLS Committee [sic].
For failure to comply within the 60 days of the sanctions will result [sic] in your membership being reviewed by the Board of Directors.
Violation of Rules and Regulations includes, but is NOT limited to:
Failure to provide complete and accurate information on any MLS listing.
Failure to complete any required MLS mandatory fields with accurate information.
Failure to timely file any listing with the service as required in Section 1.
Failure to submit a photo on any listing with improved property that covers no less that [sic] 75% of the allowed space. Photo must be submitted within 48 hours of filing with the services. The [p]hoto can not [sic] have your company sign in it.
For entering incorrect or inappropriate information in the “Agent News” section on the Bulletin Board.
For entering information into the Remarks section of the MLS that would reveal the name, address, phone or other contact information on the listing agent or office as outlined in Section 18.3.8.
For failure to report to the MLS that a new licensee has been hired by the participant.
For failure to notify the MLS within twenty-four (24) hours upon termination/resignation of the employee or licensee who has been issued a Login ID and password.
For failure to comply with any other rule, the provisions of Section 9 will apply.

(Emphasis added). Although section seven does not explicitly state that it applies only to petty offenses, the Board’s representative claimed that it was understood that section seven applies only to minor offenses. The Morfs were penalized with much harsher sanctions than allowed by section seven both in 2005 and in 2006. However, as the representative explained, the Morfs’ violations were not considered minor or petty.

¶ 17. Although section seven is poorly written, inasmuch as it states that the list of violations is not exclusive and then claims that every other violation is to be considered under section nine, the violations listed are of substantially less import than the violations with which the Morfs were charged. Notably, neither the Morfs’ specific violations nor anything similar were given in the list in section seven. Therefore, the Morfs should have been aware that their conduct would fall under section nine.

¶ 18. Section nine states as follows:

Section 9 — Enforcement of Rules or Disputes
Listings must be completely filled out, legible, and must have a photograph that covers no less than 75% of the allowed space, furnished within 48 hours from the time the listing Broker receives the listing, to the MLS. If any listing is discovered to be incomplete, it shall immediately be rejected by the MLS and returned to the Broker. MLS reserves the right to charge a fee to resubmit this listing. Subdivision or commercial lots (multiple) shall have lot numbers placed on the lots for ease of identification. (Amended 11/05)
Section 9 of the Rules and Regulations covers sanctions and procedure for hearing requests as a result of such sanctions. Furthermore, the North Central Mississippi Board of REALTORS® may impose sanctions, including but not limited to a written reprimand being placed in the agent’s personal file; a fíne to be determined by the MLS committee Hearing Panel (not to exceed $5,000) and deposited in the MLS account; a levy of fees for administrative costs; suspension of the Broker (Participant) and all affiliated subscribers from using the MLS for up to 60 days or permanent suspension of the Participant from the Multiple Listing Service. (Amended 11/05)
Consideration of Alleged Violations: The Committee shall give consideration to all written or otherwise appropriately reported complaints having to do with violations of the rules and regulations. (Amended 2/98)
Section 9.1 — Violations of Rules and Regulations: If the alleged offense is a violation of the rules and regulations of the Service and does not involve a charge of alleged unethical conduct or request for arbitration, a hearing will be held by a Hearing Panel comprised of members of the Multiple Listing Service Committee, and, if a violation is determined, the Hearing Panel may direct the imposition of sanction [sic]. The recipient of such sanction may request an appeal before the Board of Directors of the Board of REALTORS® within twenty (20) days of the tribunal’s decision being rendered. (Amended 2/OS)

Clearly, the punishment inflicted on the Morfs was within the limits prescribed by section nine. However, simply because discipline fits within the possible limits does not mean that the punishment was imposed fairly and reasonably. Although the Board’s local Rules and Regulations provide little guidance as to what sanctions are appropriate for what circumstances, the Code expounds at length on how to determine an appropriate sanction for a given violation.

¶ 19. We note at this point that the local rules promulgated by the Board do not specifically prohibit the conduct that Karen engaged in. Karen was charged with violating section 1.1, which reads: “Any listing taken on a contract to be filed with the Multiple Listing Service is subject to the rules and regulations of the Service wpon signature of the seller(s).” (Emphasis added). We surmise that the Board interprets this provision to mean two things: (1) that a listing taken via a contract is subject to the rules and regulations and (2) that the signature of the seller must be obtained prior to the listing being placed in the MLS. This second interpretation of section 1.1 is strained at best. However, the Morfs’ actions were clearly prohibited under Standard of Practice 12-4 in the Code, which reads: “REALTORS® shall not offer for sale/ lease or advertise property without authority.”

¶ 20. As we have already mentioned, the Board’s Bylaws clearly incorporate the Code in its entirety. Article VII, Section 1 reads in part:

The responsibility of the Board and of Board Members relating to the enforcement of the Code of Ethics, the disciplining of Members, and the arbitration of disputes, and the organization and procedures incident thereto, shall be governed by the Code of Ethics and Arbitration Manual of the NATIONAL ASSOCIATION OF REALTORS®, as amended from time to time, which is by this reference incorporated into these Bylaws, provided ... that any provision deemed inconsistent with state law shall be deleted or amended to comply with state law.

(Emphasis added). At trial, issue was made of whether this section applies to violations other than ethics violations. We note that Article VI, Section 2 of the Bylaws reads in relevant part:

Any REALTOR® ... may be disciplined by the Board of Directors for violations of the Code of Ethics or other dtities of membership, after a hearing as described in the Code of Ethics and Arbitration Manual of the Board, provided that the discipline imposed is consistent with the discipline authorized by the Professional Standards Committee of the NATIONAL ASSOCIATION OF REALTORS® as set forth in the Code of Ethics and Arbitration Manual of the National Association.

(Emphasis added). The section clearly states that the Code applies to violations of “other duties of membership” as well as ethical violations. Furthermore, the specific violation that Karen was charged with is clearly delineated in the Code. We have already related our supreme court’s holding in Multiple Listing Service, wherein it held that “before a fine can be imposed[,] a private association must have a schedule of maximum fines that may be imposed.... ” Multiple Listing Service, 390 So.2d at 986. However, we do not find the holding in Multiple Listing Service to mean that an association may impose any fine that it wants, as long as that fine is listed somewhere in the association’s rules and regulations. Rather, we find the word “schedule” to imply that the association must have something indicating which fines are appropriate for certain acts of misconduct. Here, section nine encompasses the punishment imposed by the Board, but there is nothing in section nine to establish what degree of punishment should be levied for what sort of infraction. However, the Code, which has been adopted and incorporated into the Board’s rules and regulations, does contain specific information. Therefore, we find that the Code, which specifically prohibits Karen’s conduct and which has a recommended punishment for that conduct, should govern the sanctions received by the Morfs.

¶ 21. The introduction to the Code discusses the value of membership in an organization such as the Board: “Membership in a Board of REALTORS® has been recognized by the courts as a valuable property right. Therefore, any action ... limiting or denying the rights and privileges of a member must be justified, not only substantively but also procedurally.” The Code then goes on to provide the range of punishments that are available against a member: (1) a letter of warning placed in member’s file, (2) a letter of reprimand placed in member’s file, (3) requirement that the member attend a course or seminar educating himself or herself about ethics or other “appropriate” subject matter, (4) an appropriate and reasonable fine not to exceed five thousand dollars, (5) probation for thirty days to one year, (6) suspension of membership for thirty days to one year with automatic reinstatement in good standing at the end of the period, (7) expulsion from membership for thirty days to one year with termination of MLS rights for a period of one to three years, (8) suspension or termination of MLS rights for thirty days to three years, and (9) imposition of administrative processing fees in an amount up to five hundred dollars. Karen’s expulsion is one of the most severe penalties that can be levied against a member for any violation.

¶22. The Code goes on to provide guidelines to boards attempting to impose sanctions against a member. As explained in the Code, “any sanction must always fit the offense and must involve every consideration of justice, equity, and propriety. Because of this, a wide range of sanctions are available to vindicate violations of the Code.” Appendix VII to Part Four discusses sanctioning guidelines, and reads, in relevant part, as follows:

Fundamental to fair and consistent Code enforcement is reasonable and judicious use of discipline, as both an educational device and as punishment. The Manual authorizes a wide variety of sanctions that may be imposed for ethics violations and for violations of other membership duties.
‡ ⅜ ‡ ⅜ ⅜ ‡
The National Association does not recommend specific discipline for certain offenses, or for violations of particular Articles of the Code. This is in deference to the wisdom and autonomy of Hearing Panels privy to the details of complaints coming before them; in recognition of the fact that no two complaints are identical; and in view of the fact that the details of each hearing, including the experience of respondents, their history of prior violations, and mitigating or extenuating circumstances, may all come into play in determining an appropriate penalty. At the same time, there are key points to be considered with respect to discipline.
Discipline that can be imposed is strictly limited to those forms authorized in the Manual.
Discipline should be commensurate with the offense. Unintentional or inadvertent violations should result in penalties designed to educate respondents as to the conduct expected of them as REALTORS®. Only authorized forms of discipline may be utilized.
Discipline should be progressive.... Repeated or subsequent violations should be addressed with more serious forms of discipline including substantial fines, suspension, and termination of membership.
•1» ⅝ ⅜» H* H* ⅜
Mitigating or extenuating circumstances should be considered in determining appropriate discipline. The fact that a respondent recognized or acknowledged inappropriate or unethical conduct, or took steps to remediate or minimize harm or injury that may have resulted from the respondent’s conduct, should be considered in determining appropriate discipline.
Respondents’ records of earlier violations (or, conversely, the fact that they have not violated the Code in the past) can be considered in determining appropriate discipline. Hearing Panels cannot consider past violations in deciding whether the conduct currently complained of violated the Code.

(Emphasis added). Several aspects of this section should have been taken into consideration in crafting discipline for the Morfs. Although the Board found that Karen’s violation was done “knowingly and intentionally,” that finding appears to have been based on her admission that she did not have authorization to post the listing when it was posted and on the fact that she had a previous disciplinary violation. However, according to the only account given, the improper listing was the result of a clerical error by an office assistant. The Board offered no evidence to refute this account of how the listing was posted. We find that, according to these guidelines, the discipline inflicted on the Morfs should have been limited to penalties intended to educate them as to their mistake. Furthermore, there is no evidence that the Morfs ever attempted to conceal or ever refused to acknowledge the mistake made by their assistant. Therefore, the Morfs’ candid admission of wrongdoing should have operated as a mitigating circumstance. Finally, the Morfs claimed, without contradiction, that they immediately attempted to remedy the situation by having the improper listings removed as soon as they were discovered. This also should have operated as a mitigating factor in support of more lenient discipline.

¶ 23. In another section, the Code provides a list of factors that panels should consider in crafting discipline for violations, including: (1) the nature of the violation, (2) what harm was caused by the violation, (3) whether the violation was intentional, (4) how much experience the realtor had, (5) previous violations and their similarity and proximity in time to the current violation, (6) mitigating circumstances, (7) acknowledgment of the violation, and (8) any other relevant factors. Although many of these were addressed above, we note again that the Board’s representative admitted that no harm was actually caused to anyone other than the Morfs as a result of the improper listing. The fact that absolutely no harm was caused to anyone as a result of the misconduct also should have been taken into account by the Board when it penalized the Morfs. Judging from the harsh penalties imposed on the Morfs, it appears that very little in the way of mitigation was applied to the Morfs’ cases.

¶24. The Code goes on to give examples of punishment for both first-time offenders and for repeat offenders. In “Repeat Violations Example # 2,” which is for a second violation within three years, the Code suggests that if the violation is “considered relatively serious” or if the violation caused “some harm or injury ... to others,” or if the violation showed disregard for the Code, then possible discipline might include: attendance at an educational course, a fine of $2,000 or less, probation for six months or less, suspension for three months or less, or any combination of those penalties. “Repeat Violations Example #3,” again for a second offense within three years, recommends, upon a finding of a “very serious” violation, “substantial harm or injury caused to others,” or knowing disregard for the Code: attendance at an educational course, a fine of up to $3,500, probation for one year or less, suspension for six months or less, or any combination of those penalties. Therefore, even if the misconduct committed by the Morfs in 2006 were considered “very serious,” the penalty imposed, at least as to Karen, is greater than what is suggested by the Code.

¶ 25. Of special interest is the detailed example of “progressive” discipline found in the Code. In the Code’s example, Realtor B, who had recently received his license, failed to disclose to his client, the seller of the property in question, that the buyer for the property was Realtor B’s wife. The Code noted that the hearing panel found that Realtor B “had knowingly concealed from his client a key fact that might have influenced the client’s decision to accept the offer....” Despite the serious and blatant nature of the offense, the Code indicates that an appropriate penalty would be a twenty-five-hundred-dollar fíne and “retaking the ethics orientation required for new members.” As we have already discussed, the only evidence presented indicated that the violation here was apparently not intentional and was simply inadvertent. Despite that fact, Karen was expelled from the Board for one year. There is no doubt that, over time, the expulsion for one year would cost the Morfs much more than a twenty-five-hundred-dollar fíne.

¶ 26. Even more telling is a look at some of the other discipline imposed by the Board in question. Several actual cases were presented as evidence at trial. In none of the cases did the individuals receive discipline as harsh as the discipline received by the Morfs. The Board’s representative admitted during questioning that, during his time on the Board, he knew of no other individual who had been expelled for any violation. In one case presented, an individual was found to have committed numerous violations, including a violation of section 1.1, the same section that Karen was charged with having violated. However, the individual in question received only a one-thousand-dollar fine, a suspension from the MLS for thirty days, a period of mandatory attendance at an orientation session, and an administrative fee in the amount of two hundred fifty dollars. The letter of reprimand does not indicate whether the individual had any prior violations.

¶ 27. In another case, two individuals were found to have violated sections 1.1, 1.4, 1.5, and 1.10. The individuals were found in violation of not only the same section as Karen, but also of three other sections. Each individual received a fine of thirteen hundred dollars and was suspended from the MLS for thirty days. This letter of reprimand attempted to explain how the realtors in question violated section 1.1, but the Board’s summary of the improper conduct was unhelpful: “Rule ignored during regular contractual transactions entered into the MLS by an agent of this firm.” The letter failed to indicate whether the individuals had prior •violations.

¶ 28. In a third case, an individual was found to have violated sections 1.1, 2.7, and 4.1. Unlike Karen and the three other individuals discussed, this violator received only a fine of one thousand dollars, an administrative processing fee of two hundred fifty dollars, and a mandatory attendance at an orientation session. Notably, the individual was not suspended from the MLS service for any period of time.

¶ 29. Having reviewed the Code, as well as the Board’s Rules and Regulations and its Bylaws, it is clear to this Court that the Board acted arbitrarily and capriciously in disciplining the Morfs. The guidelines contained in the Code do not appear to have been followed in any way. Furthermore, the penalties were not commensurate with the discipline imposed on other violators by the same Board. Accordingly, we reverse and remand for consideration of more appropriate discipline for the Morfs’ violations. On remand, the mitigating factors found in the Code should be taken into account, as should the punishments received by other individuals before the same Board.

¶ 30. THE JUDGMENT OF THE CHANCERY COURT OF LAFAYETTE COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. MAXWELL, J., NOT PARTICIPATING.

      . We note that this matter was tried before a chancellor, not a jury. Hence, it is inappropriate to characterize the chancellor’s action dismissing the Morfs' complaint as granting a directed verdict. Therefore, we recast the issue as whether the court erred in refusing to grant a permanent injunction enjoining enforcement of the sanctions imposed on the Morfs. We also address the second issue as a part of our discussion of the first issue, as the two are interrelated.

      . The Morfs and the Board dispute what is meant by "probation.” Regardless, it is clear that the Morfs' 2005 violations were properly taken into account as aggravating factors for the Morfs’ ensuing 2006 charges.

      . Of course, Karen could have been expelled for three years. However, as we have already stated, regardless of the length of the expulsion, there is no guarantee of readmission once a member has been expelled.

      . The representative testified that the violation could have had an impact on other realtors. However, he admitted that, in this case, the only individuals who actually suffered harm as a result of the improper listing were the Morfs.


author: MYERS, P.J.,

text:
    Terrance CHANDLER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CA-01962-COA.
    Court of Appeals of Mississippi.
    Jan. 5, 2010.
    Imhotep Alkebu-Lan, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MYERS, P.J., IRVING and GRIFFIS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Terrance Chandler entered a plea of guilty to the charge of possession of cocaine in an amount greater than thirty grams, within 1,500 feet of a church, with intent to distribute. The Circuit Court of Oktibbeha County sentenced Chandler to thirty years in the custody of the Mississippi Department of Corrections (MDOC), followed by five years of post-release supervision upon his release from confinement. Chandler filed a motion for post-conviction relief (PCR) seeking to have his sentence reduced based on statements made by the circuit court during the sentencing phase of his guilty plea hearing. After granting a hearing on the matter, the circuit court found that the motion was without merit and denied Chandler’s PCR motion. Chandler timely appeals to this Court. Finding no error, we affirm the circuit court’s denial.

FACTS

¶ 2. On April 26, 2006, in front of the circuit judge, Chandler entered a plea of guilty to the possession, within 1,500 feet of a church, of 423 grams of powder cocaine with the intent to distribute. After taking Chandler’s open plea and ascertaining that it was knowing, intelligent, and voluntary, the circuit judge deferred sentencing pending a pre-sentence investigation and report. The circuit judge found, according to that report, that Chandler had no prior felony convictions. On May 5, 2006, the matter came on for sentencing. Prior to imposition of the sentence, the circuit judge made the following ore tenus comments:

BY THE COURT: The [Legislature has given you some measure of mercy. This used to be an 85 per cent [sic] crime. It’s now a 25 percent crime. Even if I gave him the maximum, 60 years, he would only be there 15 years.
As I’ve said, this is a 7 — 25 percent [sic] crime, and I’ve thought about that when I’ve sentenced, and I’ve found out — I’ve called to check on that, so whatever sentence I give you, you’ll serve 25 percent of that.
Accordingly, Mr. Chandler, it is the judgment of this Court in this cause number, 2006-0066-CR, that you be sentenced to serve a term of 30 years in the custody of the Mississippi Department of Corrections.
When you complete whatever part of that 30-year sentence you’ll serve, you’ll be on post-release supervision for five years. You’ll pay a fíne in the amount of $5,000, plus the cost of court.
So that any — both sides will know, I could have given him 60 years. That would have amounted to 15, under the statute. I do give him some credit for coming forward when the police officers got him and admitting what he had done. He does get that credit. Had he not done that, then I would have given him the maximum.

¶ 3. A formal written sentencing order was thereafter entered that same day, expressly stating that Chandler be sentenced to serve a term of thirty years in the custody of the MDOC, and that he be placed on five years of post-release supervision after his release from confinement.

¶ 4. On October 27, 2006, Chandler filed a PCR motion requesting that the circuit court correct its judgment and sentence. Chandler claimed that the intent of the circuit court, through its pronouncement from the bench, was that he serve no more than twenty-five percent of his thirty-year sentence, or seven and one-half years.

¶ 5. The circuit court granted Chandler a hearing on his PCR motion, which was conducted on August 1, 2008. After reviewing the transcript of the sentencing hearing and listening to oral argument from both parties, the circuit court denied the motion. In his order denying the motion, the circuit judge stated the following:

The Petitioner contends that the court gave him an excessive sentence because the Court had calculated that the Petitioner would only have to serve a lesser percentage of time.
Actually, the Court’s comments during the sentencing hearing were the Court’s concerns that the state parole board would allow the Petitioner to serve only 25% of the sentence imposed by this Court. The prospect of early release was especially disconcerting in this case due to the surrounding circumstances.
The Petitioner pled guilty in an open plea. Pleading open leaves the sentence to the discretion of this Court. The Court did not engage in plea negotiations and did not promise the Petitioner any sentence to get him to plead guilty. Given the very large amount of cocaine, one pound, along with the court’s belief that the Petitioner was supplying most of Starkville’s street level dealers with cocaine to re-sell, this Court believes that the Petitioner should serve most, if not all, of the thirty (30) year sentence imposed upon him.
Be that as it may, the legislative branch of government has entrusted to the [executive branch, e.g. [sic] the state parole board, the decision as to what a thirty (30) year sentence imposed by the [jludicial branch of government actually means in terms of real time to serve. Most assuredly, this Court did not intend to give just a seven and a half (7½) year sentence in the largest possession of cocaine with intent to distribute case that had ever come before this [C]ourt....

STANDARD OF REVIEW

¶ 6. When reviewing the circuit court’s decision to deny a petition for post-conviction relief this Court will not disturb that court’s factual findings unless they are found to be clearly erroneous. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999) (citing Bank of Miss. v. S. Mem’l Park, Inc., 677 So.2d 186, 191 (Miss.1996)). “However, where questions of law are raised the applicable standard of review is de novo.” Id.

DISCUSSION

¶ 7. Chandler argues that the circuit court erred in denying his PCR motion and requests that his final sentencing order be corrected to reflect the circuit court’s oral pronouncement that he be incarcerated for a period no longer than twenty-five percent of his thirty-year sentence (i.e., seven and one-half years). Chandler asserts that where there is any variation between the oral and written pronouncements of a sentence, the oral sentence prevails; he cites to numerous federal cases for support of his argument. This Court, however, has addressed this issue.

¶ 8. In Boutwell v. State, 847 So.2d 294, 295(¶ 6) (Miss.Ct.App.2003), we recognized that the law in most jurisdictions is that when a written judgment of sentence directly conflicts with the sentencing judge’s oral pronouncement of sentence, the oral pronouncement controls. (Citations omitted). However, the Boutwell Court also found that, while this may be the rule in other jurisdictions, our supreme court has held that where there is a direct conflict between the oral and written pronouncements of a sentence, the written order controls. Id. at (¶ 8) (citing Temple v. State, 671 So.2d 58, 59 (Miss.1996) (holding that “in order for a sentence to be valid, a judgment must be entered as of record.”)).

¶ 9. It is unnecessary for us to discuss the rationale behind these respective viewpoints, for it is entirely clear, based on our review of the record in this case, that no conflict exists between the circuit court’s oral pronouncement of the sentence and its ensuing written order. Both clearly reflect that Chandler was sentenced to a term of thirty years in the custody of the MDOC, followed by five years of post-release supervision, for violating Mississippi Code Annotated sections 41-29-139 (Rev.2005) and 41-29-142 (Rev.2005).

¶ 10. The remarks made by the circuit judge during Chandler’s sentencing hearing were merely “surplusage,” in that they were comments concerning Chandler’s eligibility for parole. Temple, 671 So.2d at 59. They were not, nor could they be, as Chandler contends, an oral mandate to the MDOC that Chandler be released from that agency’s custody after serving just seven and one-half years of his thirty-year sentence. As the circuit court correctly noted in its order denying Chandler’s PCR motion, the parole board, not the circuit court, has exclusive authority for the granting of parole within the parameters set forth in Mississippi Code Annotated section 47-7-3 (Supp.2009). See Cotton v. Miss. Parole Bd., 863 So.2d 917, 921(¶ 11) (Miss.2003) (“This control is independent of the circuit court’s sentencing authority.”) (citation omitted). Accordingly, we find this issue is without merit.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


text:
    REBUILD AMERICA, INC., Appellant, v. The ESTATE OF Daniel A. WRIGHT, Deceased, Appellee.
    No. 2009-CA-00126-COA.
    Court of Appeals of Mississippi.
    Feb. 9, 2010.
    Kimberly Pine Turner, Joseph Michael Gianola, Jr., Hattiesburg, attorneys for appellant.

      Jon Heath Powell, Flowood, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and CARLTON, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Daniel Wright was the owner of a piece real property located at 1980 Highway 80 West, in Jackson, Mississippi. Wright failed to pay the 2004 ad valorem taxes, and the subject property was sold by Hinds County for taxes in August 2005. It ultimately came into the possession of Rebuild America, Inc.

¶ 2. After the tax sale, the property was not redeemed by Wright during the following two years. Rebuild America then filed a complaint to quiet title in the Chancery Court of Hinds County, against Wright. During the pendency of the proceedings, Wright died, and his estate was substituted as the defendant.

¶ 8. Following discovery, both parties filed motions for summary judgment. After a hearing, the chancellor granted the Estate’s motion, finding that Wright had not been personally served with the required statutory notice of the tax sale, as provided by Mississippi Code Annotated sections 27-43-1 to -3 (Supp.2009). The chancellor therefore granted the Estate’s motion for summary judgment and denied Rebuild America’s. The chancery court entered a judgment on December 19, 2008, and Rebuild America filed a timely notice of appeal.

¶ 4. On appeal, Rebuild America argues that the chancellor erred in finding that the chancery clerk had failed to comply with the statutory notice procedure. In the alternative, it asserts that the chancellor erred in failing to award damages and interest to Rebuild America pursuant to Mississippi Code Annotated sections 27-45-3 and -27 (Rev.2006). Finding only the second contention of error meritorious, we affirm in part and reverse and remand in part for further proceedings consistent with this opinion.

STANDARD OF REVIEW

¶ 5. We review a trial court’s disposition of a motion for summary judgment de novo. Treasure Bay Corp. v. Ricard, 967 So.2d 1235, 1238(¶ 10) (Miss.2007). This Court “examines all the evidentiary matters before it-admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” City of Jackson v. Sutton, 797 So.2d 977, 979(¶ 7) (Miss.2001) (citations omitted). The moving party has the burden of demonstrating that no genuine issue of material facts exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact. Id. “If no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that party’s favor.” Monsanto Co. v. Hall, 912 So.2d 134, 136(¶ 5) (Miss.2005).

DISCUSSION

1. Statutory Notice

¶ 6. Regarding the statutory notice requirement, we have previously held:

‘When property is sold for unpaid county or municipal ad valorem taxes, the property owner must be given notice of his right to redeem the property within 180 days of, but no less than 60 days prior to, the expiration of the redemption period.” DeWeese Nelson Realty, Inc. v. Equity Services Co., 502 So.2d 310, 311 (Miss.1986). Chancery clerks are required to provide notice to property owners in accordance with Mississippi Code Annotated section 27-43-3 (Rev. 2002), which states in pertinent part:
The clerk shall issue the notice to the sheriff of the county of the reputed owner’s residence, if he be a resident of the State of Mississippi, and the sheriff shall be required to serve personal notice as summons issued from the courts are served, and make his return to the chancery clerk issuing same. The clerk shall also mail a copy of same to the reputed owner at his usual street address, if same can be ascertained after diligent search and inquiry, or to his post office address if only that can be ascertained, and he shall note such action on the tax sales record. The clerk shall also be required to publish the name and address of the reputed owner of the property and the legal description of such property in a public newspaper of the county in which the land is located, or if no newspaper is published as such, then in a newspaper having a general circulation in such county. Such publication shall be made at least forty-five (45) days prior to the expiration of the redemption period.
The Mississippi Supreme Court has held that “[sjection 27-43-8 requires redemption notice be given by personal service, by mail, and by publication in an appropriate newspaper.” DeWeese Nelson Realty, Inc., 502 So.2d at 312. Therefore, in order for a redemption notice to be complete and in accordance with the statute, all three requirements must be met.

Viking Investments, LLC v. Addison Body Shop, Inc., 931 So.2d 679, 681 (¶ 6) (Miss.Ct.App.2006) (footnote omitted). Furthermore:

“Statutes dealing with land forfeitures for delinquent taxes should be strictly construed in favor of the landowners.” Roach v. Goebel, 856 So.2d 711, 716(¶ 29) (Miss.Ct.App.2003) (quoting Brown v. Riley, 580 So.2d 1234, 1237 (Miss.1991)). “Any deviation from the statutorily mandated procedure renders the sale void.” Id (citing Hart v. Catoe, 390 So.2d 1001, 1003 (Miss.1980)).

Id. at 681-82(¶ 7).

¶ 7. Turning to the case at hand, both parties agree that Wright was properly served by mail and by publication. Regarding personal service, however, the sheriffs return stated that the process server had been unable to locate Wright, and that the deputy had therefore left a copy of the notice attached to an outer door of a structure on the subject property. We have previously found this insufficient to satisfy the personal service requirement of section 27-43-3. Id. at 682(¶ 8).

¶8. On appeal, Rebuild America acknowledges that Wright was not personally served with the required notice. However, it argues that this defect was cured by an affidavit executed by a deputy chancery clerk pursuant to section 27-43-3, which provides in pertinent part:

In the event the notice by mail is returned undelivered and the personal notice as herein above required to be served by the sheriff is returned not found, then the clerk shall make further search and inquiry to ascertain the reputed owner’s street and post office address.

It continues in relevant part:

If the clerk is still unable to ascertain the reputed owner’s street or post office address after making search and inquiry for the second time, then it shall not be necessary to issue any additional notice but the clerk shall file an affidavit specifying therein the acts of search and inquiry made by him in an effort to ascertain the reputed owner’s street and post office address and said affidavit shall be retained as a permanent record in the office of the clerk and such action shall be noted on the tax sale record.

¶ 9. We find that this provision of section 27-43-3 is simply inapplicable to the facts presented. As to instate property owners, before an affidavit may suffice, section 27-43-3 requires both a failure of personal service and a return of the notice by mail as undelivered. But see Norwood v. Moore, 932 So.2d 63, 66(116) (Miss.Ct.App.2006) (noting that as to out-of-state owners, personal service is not required by the statute, so only failure of notice by mail is required before affidavits may suffice). Here, both sides agree that notice was served by mail. Under a strict reading of the statute, the chancery clerk’s affidavit cannot be a substitute for personal service where notice by mail was completed.

¶ 10. Additionally, we note that in Norwood, this Court held that not one, but two affidavits, documenting the two distinct searches and inquiries that are required by the statute, are required where the required service has failed. Id. at (¶¶ 7-8). The record here contains only a single affidavit, concerning a single search and inquiry. Furthermore, that affidavit is unsworn, and an unsworn affidavit cannot create a genuine issue of material fact to defeat summary judgment. Thomas v. Greenwood Leflore Hosp., 970 So.2d 273, 277(¶ 19) (Miss.Ct.App.2007).

¶ 11. Accordingly, we find that this issue is without merit.

2. Statutory Damages

¶ 12. Rebuild America argues that, even if the chancery court properly found against it regarding title to the property, Rebuild America was entitled to damages stemming from certain expenses it incurred relating to the tax sale, as provided for in Mississippi Code Annotated sections 27-45-3 and-27. The Estate does not dispute that Rebuild America would be entitled to such damages, but it argues that Rebuild America waived the issue by failing to raise it for the chancellor to consider.

¶ 13. The chancellor’s final judgment did not address whether Rebuild America would be entitled to damages under the statutes.

¶ 14. In reviewing the record, we find that this issue was properly submitted to the chancery court in Rebuild America’s initial complaint. While Rebuild America may not have forcefully reiterated its demand in arguing the dueling motions for summary judgment, the chancellor should nonetheless have addressed the issue before entering a final judgment. Accordingly, the chancellor’s judgment is reversed to the extent that it denies Rebuild America damages under sections 27-45-3 and -27, and the case is remanded for the chancellor to determine what damages are owing to Rebuild America under the aforementioned statutes.

¶ 15. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE.

KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR.


author: PER CURIAM.

text:
    Roger PHILLIPS and Annette Phillips v. WATER WORKS AND SEWER BOARD OF the TOWN OF ARITON.
    1060350.
    Supreme Court of Alabama.
    July 17, 2009.
    R. Rainer Cotter III of Marsh, Cotter & Stewart, LLP, Enterprise, for appellants.
    Henry B. Steagall III, Ozark, for appel-lee.
   PER CURIAM.

Roger Phillips and Annette Phillips appeal from a judgment entered against them in an action they instituted against the Water Works and Sewer Board of the Town of Ariton (“the Board”), alleging that the Board “improperly allowed third parties to use an easement that the Phillips[es] [had] deeded to the Board.” Phil-lipses’ brief, at 1. We reverse and remand.

Facts and Procedural History

In 1996, the Board purchased approximately 20 acres from two adjoining landowners, the Phillipses and Ed Jones, in order to construct on the property a sewage-treatment plant and lagoon to serve the Town of Ariton. Prior to purchasing the land from the Phillipses and Jones, the Board planned to purchase all the land needed for the sewage-treatment plant and lagoon from Jones, and the purchase would have included Jones’s easement over the Phillipses’ land running approximately 800-400 yards from the Phillipses’ front yard. The Board planned to use the easement over the Phillipses’ land to lay a sewage pipeline. However, upon learning of the Board’s planned use of the easement, the Phillipses objected and threatened to interfere with the Board’s plans. The Board then sought a preliminary injunction prohibiting the Phillipses from interfering with its plans for the sewage-treatment plant and lagoon.

The Board and the Phillipses negotiated a settlement pursuant to which the Board would purchase from the Phillipses approximately one-half the land needed for the sewage-treatment plant and lagoon and a new easement in a different location on the Phillipses’ property. The Board’s action was dismissed. The deed conveying the property from the Phillipses to the Board included the following pertinent language:

“[T]he [Phillipses do] hereby grant, bargain, sell and convey unto [the Board] the following described real estate ...:
“Easement: A permanent 20 feet wide ingress/egress and utility easement

The purpose of the easement was to allow the Board to travel to and from the property on which it was constructing the sewage-treatment plant and lagoon and to “get a pipeline to the lagoon system.”

Although Jones had a separate easement over the Phillipses’ land to gain access to his land, which was landlocked, once the Phillipses granted the Board the easement, Jones began using the Board’s easement, by which he could access his land more directly. In 2008, an incident occurred involving the Board’s easement that caused the Board to send a letter to the Phillipses and Jones setting forth guidelines for the use of the easement. The letter stated:

“There has been some question about the use of the sewer lagoon road. Ronnie Danner, Chairman of [the Board,] met with attorney Henry Steagall concerning the utility easements on the sewer road going to the Ariton sewer lagoon. According to the deeds of each party (Ed Jones and Roger Phillips) each should be given the right to egress and ingress to their properties and any person given written permission by each party[] (Ed Jones or Roger Phillips). No party is to leave the right-[of]-way until he or she is on the right property. No 4-wheelers on sewer road, or big heavy trucks, please.
“Attorney Henry B. Steagall recommends to the Board to give Ed Jones and any person with written permission from Mr. Ed Jones to go to and from the Jones property.
“After some discussion the Board moved to hereby authorize[] Ed Jones the privilege to use the Ariton sewer road to egress and ingress his property and any persons given written permission by Mr. Jones. The parties must not get off the right-[of]-way until they have reach[ed] Mr. Jones’[s] property. All gates must be opened and closed and locked when passing through.”

On May 6, 2005, the Phillipses sued the Board, challenging the Board’s authority to allow Jones, and whomever Jones authorized, use of the Board’s easement. The Phillipses alleged in their complaint that the Board “improperly allowed third parties to use an easement that the Phillips[es] [had] deeded to the Board.” Phil-lipses’ brief, at 1. On July 6, 2005, the Board filed its answer, denying the allegations of the complaint. On August 1, 2006, the trial court held a hearing at which ore tenus evidence was presented and on August 28, 2006, entered a judgment for the Board, holding, among other things, that the Board had the authority to allow certain third parties to use the easement for purposes other than the use and maintenance of the sewage-treatment plant and lagoon. On September 22, 2006, the Phil-lipses filed a motion to alter or amend the judgment or, in the alternative, for a new trial; the trial court denied the motion on October 16, 2006. The Phillipses appealed.

Standard of Review

In Marvin’s, Inc. v. Robertson, 608 So.2d 391 (Ala.1992), this Court discussed the applicable standard of review of a judgment of a trial court based on ore tenus evidence:

“Where ore tenus evidence is presented to the trial court, a presumption of correctness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Gaston v. Ames, 514 So.2d 877, 878 (Ala.1987); Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So.2d 1177 (Ala.1981). The judgment of a trial court based on ore tenus evidence is presumed correct, and its findings ‘will not be disturbed on appeal unless they are palpably wrong, manifestly unjust, or without supporting evidence.’ McCoy v. McCoy, 549 So.2d 53, 57 (Ala.1989). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court’s judgment. Gaston, supra; Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985); League v. McDonald, 355 So.2d 695 (Ala.1978).”

608 So.2d at 393.

Issues and Analysis

Initially, we note that the parties do not dispute the Board’s authority to allow anyone to use the easement for purposes related to the use and maintenance of the sewage-treatment plant and lagoon. Rather, the Phillipses challenge the trial court’s holding that the Board has the authority to allow certain unaffiliated third parties to use the easement for purposes unrelated to the use and maintenance of the sewage-treatment plant and lagoon.

First, the Phillipses argue that their complaint should be considered amended by operation of Rule 15(b), Ala. R. Civ. P., to conform to the evidence to include a request that the court enter a judgment declaring whether the Board has the authority to allow any third party who is unaffiliated with, unassociated with, or not employed by the Board to use its easement for purposes unrelated to the sewage-treatment plant and lagoon or the sewer pipeline. In their complaint, the Phillipses alleged that the Board had improperly allowed Jones, a third party not affiliated •with or employed by the Board, to use its ingress/egress easement. The Phillipses requested “a decree prohibiting [the Board] from using [its] easement for ingress and egress of third parties.” The trial court held in its order, in pertinent part:

“1. That the [Board] shall not let third parties who are not affiliated with or associated with or employed by the Board or third parties who are not an adjacent or abutting landowners use the easement.
“2. That the Board shall be permitted to allow Ed Jones to use the easement in accordance with the conditions and guidelines as agreed to and in accordance with the judgment of August 28, 1985.[]”

Therefore, as evidenced by the trial court’s final order, it is unnecessary to address the Phillipses’ Rule 15(b), Ala. R. Civ. P., argument because the Phillipses’ complaint contained an assertion to that effect and the trial court decided the issue.

Next, the Phillipses argue that the trial court erred to the extent that it implicitly held that the Board has the authority to allow “adjacent or abutting landowners use [of] the easement,” which would include Jones, and to the extent that it held that the Board has the authority “to allow Ed Jones to use the easement in accordance with the conditions and guidelines as agreed to and in accordance with the judgment of August 28, 1985.” The Phillipses agree that their land is burdened by an express easement appurtenant to the land conveyed by them to the Board and that the Board, its employees, and its agents may use the easement in conducting their business related to the sewage-treatment plant and lagoon. Phillipses’ brief, at 20. However, the Phillipses argue that “such an easement does not devolve to a third person who is not an employee or agent of the dominant estate owner.” We agree.

If an easement is granted ‘“for the benefit of some particular land it can not be used to accommodate some other tract of land adjoining or lying beyond. “ ‘One having a right of way appurtenant to certain land can not use it for the benefit of other land.’ ” ’ ” Weeks v. Wolf Creek Indus., Inc., 941 So.2d 263, 269 (Ala.2006) (quoting Loveman v. Lay, 271 Ala. 385, 392, 124 So.2d 93, 99 (1960), quoting in turn West v. Louisville & Nashville R.R., 137 Ala. 568, 571, 34 So. 852, 853 (1903)). Further, “[p]rivate [easements] are confined in their use to the purposes for which they are granted, and cannot be extended by the grantees. When intended to give access only to particular premises, they cannot be used thereby to reach other lands.” West, 137 Ala. at 571-72, 34 So. at 853.

In Loveman v. Lay, supra, a dominant estate owner had an easement over the properties of two servient estate owners. The dominant estate owner also owned a piece of land adjoining and abutting his dominant estate, but not adjacent to the easement. The dominant estate owner allowed the easement to- be used to benefit his property adjoining and abutting the dominant estate by allowing coal to be brought in over the easement to heat the buildings on the land adjoining and abutting the dominant estate. The servient estate owners sought injunctive relief, and this Court determined that “the hauling of coal over the [easement] for the purpose of heating the building or buildings west of the [dominant estate] should be enjoined,” 271 Ala. at 393, 124 So.2d at 99, because, “[i]f the [easement] is for the benefit of some particular land[,] it can not be used to accommodate some other tract of land adjoining or lying beyond.” 271 Ala. at 392, 124 So.2d at 99.

In the present case, as determined by the trial court, the Phillipses granted the Board an easement for ingress and egress and authorized the Board to allow third parties to use it in relation to “the use of and maint[enanee] of the sewage treatment plant and lagoon.” The Board has attempted to allow Jones to use its easement to benefit Jones’s land, which adjoins and lies beyond the Board’s property, for purposes entirely unrelated to the Board’s use and maintenance of the sewage-treatment plant and lagoon. Therefore, the trial court erred in holding that the Board has the authority to enlarge its easement to benefit Jones’s land by allowing Jones and his “family, servants, agents, employees, licensees or guestfs]” to use its easement “in accordance with the judgment of August 28, 1985,” the judgment that awarded Jones his original easement. Allowing the Board to enlarge its easement by authorizing Jones, and whomever Jones in turn authorizes, to use the easement would be to allow the Board’s easement to be used to accommodate land that is adjoining or lying beyond the dominant estate. This the law does not allow.

Conclusion

Based on the foregoing, the trial court’s judgment is reversed to the extent that it held that the Board has the authority to allow “adjacent or abutting landowners use [of] the easement,” which includes Jones, and to the extent that it held that the Board has the authority “to allow Ed Jones to use the easement in accordance with the conditions and guidelines as agreed to and in accordance with the judgment of August 28, 1985,” and the case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, MURDOCK, and SHAW, JJ„ concur.

      . On August 28, 1985, in litigation between the Phillipses and Jones, the Dale Circuit Court found that "the Phillips [es] admit that a right of ingress and egress exists over their lands to the Jones land on the farm or field road" and that “the right of ingress and egress over ... the Phillips land on the farm or field road is appurtenant to the Jones land.”

      . The trial court held, in pertinent part, "[t]hat the Board may allow anyone to use the easement for purposes related to the use of and maintaining of the sewage treatment plant and lagoon.”

      . See supra note 1.