author: CARLTON, J., FOR THE COURT:

text:
    PATTON MEDICAL OF GULF COAST, INC., Appellant v. Michael RELLE, Individually, and Orthotic & Prosthetic Specialists, Inc., Appellees
    NO. 2017-CA-00122-COA
    Court of Appeals of Mississippi.
    April 3, 2018 Rehearing Denied October 2, 2018
    ATTORNEYS FOR APPELLANT: JAMES KENNETH WETZEL, GARNER JAMES WETZEL, Gulfport
    ATTORNEY FOR APPELLEES: BLEWETT W. THOMAS, Gulfport
    BEFORE GRIFFIS, P.J., CARLTON AND TINDELL, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. Patton Medical of Gulf Coast, Inc. ("Patton Medical") claims that it entered into a joint business venture with Michael K. Relle ("Relle Sr.") and Orthotic & Prosthetic Specialists, Inc. ("O&P") to furnish orthotics and prosthetics in the Mississippi Gulf Coast area. The business arrangement failed. Believing it was still owed a portion of the joint venture's profits, Patton Medical sued Relle Sr. and O&P in Harrison County Court, seeking recovery under the parties' business venture agreement and under Mississippi's open-account statute, Mississippi Code Annotated section 11-53-81 (Rev. 2012).

¶ 2. On Relle Sr.'s motion, the county court granted summary judgment in his favor, finding Patton Medical could not establish a triable issue of fact on its claim that Relle Sr. was individually liable to it for unpaid profits. Having prevailed on all counts against him, including the open-account claim, Relle Sr. then moved for attorney fees under section 11-53-81. The county court granted Relle Sr.'s motion and awarded him $7,000 in attorney fees. The case proceeded to trial on Patton Medical's joint venture claims against O&P, and the jury returned a verdict for Patton Medical, assessing $101,316.69 in damages. The county court denied O&P's motion for a judgment notwithstanding the verdict ("JNOV motion").

¶ 3. The parties appealed the county court judgment and respective decisions against them to the Harrison County Circuit Court. The circuit court affirmed the county court's summary judgment in Relle Sr.'s favor, and its $7,000 attorney fees award under section 11-53-81. It reversed the county court's denial of O&P's JNOV motion and rendered judgment in O&P's favor.

¶ 4. Now on appeal to this Court, Patton Medical asserts that the circuit court (1) erred in granting O&P's JNOV motion, which reversed the county court's denial of that motion and reversed the jury verdict in Patton Medical's favor; (2) erred in affirming the county court's decision granting Relle Sr.'s motion for summary judgment; and (3) erred in affirming the county court's decision granting Relle Sr.'s motion for attorney fees brought pursuant to Mississippi's open-account statute.

¶ 5. Finding error in the circuit court's reversal of the county court's judgment on O&P's JNOV motion, we reverse and reinstate the county court jury verdict and $101,316.69 damages award in Patton Medical's favor because there was sufficient evidence to support its verdict and award. Finding no error in the circuit court's affirmance of the county court's summary judgment order in Relle Sr.'s favor and its related award of $7,000 in attorney fees under section 11-53-81, we affirm that aspect of the circuit court's judgment.

FACTS

¶ 6. Patton Medical is a medical supply business that sells orthotics and prosthetics and is located in Ocean Springs, Mississippi. Its principals are Jay Rubenstein and Keith Wade. In April 2010, Patton Medical's certified prosthetist gave notice. Neither Rubenstein nor Wade were certified orthotists or prosthetists at the time. Patton Medical needed a certified orthotist/prothetist to continue serving its patients, so Rubenstein and Wade weighed various options to fill that void. They ultimately decided to contact Relle Sr., then president of O&P, about Patton Medical's need to associate a licensed orthotist and prosthetist to treat its clients.

¶ 7. Relle Sr. and his son, Michael S. Relle ("Relle Jr."), worked as O&P's certified practitioners, both were licensed to provide orthotic and prosthetic services. O&P's primary facility is in Covington, Louisiana.

¶ 8. Rubenstein, Wade, Relle Sr., and Relle Jr. had their first meeting in Slidell, Louisiana to discuss O&P and Patton Medical doing business on the Gulf Coast. In late April 2010 these individuals met a second time. Relle Sr. and Relle Jr. traveled to Ocean Springs to view Patton Medical's facilities and examine one of Patton Medical's clients.

¶ 9. According to Patton Medical, Relle Sr. participated in these meetings both individually and on behalf of his company, O&P. Relle Sr., on the other hand, contends he participated solely on O&P's behalf as its president.

¶ 10. According to the deposition testimony of Relle Sr. and the testimony of Patton Medical's principals, Wade and Rubenstein, at the second meeting Patton Medical, O&P, and, according to Patton Medical, Relle Sr., consummated an oral agreement to do business together on a temporary basis to see whether O&P could meet Patton Medical's needs. The parties agreed that there would be a 50/50 split of the profits from the business.

¶ 11. The evidence in the record reflects that the parties also agreed to the following division of responsibilities:

Patton Medical's Responsibilities O&P's Responsibilities supply patients supply a prosthetist once a week to see patients at the Patton Medical Ocean Springs facility provide the facility for seeing patients provide patient billing, technical support, purchasing, and accounting services perform marketing and sales cover warranty items secure medical information for patient charts

¶ 12. According to O&P, Patton Medical was responsible for fabricating (manufacturing) the orthotics and prosthetics. Patton Medical did start off sending someone to O&P's facility to do the fabrication for a few weeks. After about a month, however, O&P told Patton Medical it would take over the fabrication at O&P. Patton Medical agreed, and O&P did the fabricating from that point forward.

¶ 13. The business venture continued for four or five months. During this time O&P had business cards made for Rubenstein and Wade, identifying them as "practice managers" under O&P's name. In his deposition, which was read at trial, Relle Sr. admitted the business cards were prepared in furtherance of the oral agreement to do a joint venture with Patton Medical. O&P also hired another orthotist/prosthetist to work primarily with Patton Medical. O&P received all payments from billings, periodically provided an accounting to Patton Medical, and paid Patton Medical over $196,000 in 2010. Though, as noted, the parties agreed that there would be a 50/50 split of the profits; they ultimately disagreed on whether some costs, primarily fabrication costs, should be deducted as expenses before dividing the profits. According to Patton Medical, the profits were to be split after subtracting the cost of component goods. The record shows that the cost of component goods did not include fabrication costs.

¶ 14. According to O&P, Patton Medical was responsible for fabrication, and, under that scenario, it would receive 50% of the profits. O&P asserts that when Patton Medical was unable to fulfill this responsibility, O&P took over fabrication. Taking over fabrication caused O&P to incur these costs. The record shows that at this point, O&P then began subtracting the fabrication costs from profits before the 50/50 split.

¶ 15. Both Patton Medical's principals, Rubenstein and Wade, testified at trial that there was never an agreement that either company would charge fabrication costs against the income derived in the business. The jury also heard testimony from Relle Sr. (via his deposition read at trial) and Relle Jr. that they did not recall advising Patton Medical that O&P would deduct fabrication costs in the expense calculation. Relle Jr. also testified, however, that when Patton Medical agreed to have O&P do the fabrication, the parties never discussed that O&P would assume the fabrication costs.

¶ 16. The record reflects that before the end of 2010, O&P terminated the parties' oral agreement to supply orthotics and prosthetics. O&P described several reasons for termination, including, among other reasons, patient overload that O&P could not service, and Patton Medical's inability to do the fabrication, which further burdened O&P's limited resources. The last payment O&P made to Patton Medical was in November 2010.

¶ 17. When the periodic accountings and payments stopped, Patton Medical repeatedly tried to get in contact with O&P regarding the status of payments, account receivables, and expenses. Patton Medical received no satisfactory response from O&P, so it hired an attorney who then sent a demand letter to O&P under Mississippi's open-account statute. In that demand letter Patton Medical sought "to collect an open-account with your firm ... for funds owed to Patton Medical ... for work performed for your company." There was no mention of Relle Sr.'s potential individual liability in the demand letter.

¶ 18. Patton Medical was unsuccessful in obtaining a satisfactory response to its demand letter, so it sued O&P and Relle Sr. Patton Medical sought to recover its remaining share of profits under the parties' business venture and also sought to recover for an open-account under section 11-53-81.

¶ 19. In its answer, O&P denied it was liable to Patton Medical on an unpaid account. Likewise, in his answer, Relle Sr. denied that he was personally or individually liable to Patton Medical on an unpaid open-account. As for the joint venture claim, O&P acknowledged that Patton Medical's complaint concerned a joint venture between O&P and Patton Medical but denied that Patton Medical was due any additional sums earned through the joint business venture and affirmatively stated that O&P had previously paid Patton Medical one-half of the joint venture's net profits. Relle Sr. similarly acknowledged the existence of a joint venture between O&P and Patton Medical in his answer but made no acknowledgment or admission as to the existence of a joint venture between himself, personally, and Patton Medical. Additionally, the evidence in the record showed that during his deposition, Relle Sr. admitted to the existence of a joint venture between O&P and Patton Medical.

Dismissal of Relle Sr.

¶ 20. Before filing his answer, Relle Sr. moved to dismiss Patton Medical's complaint against him under Mississippi Rule of Civil Procedure 12(b)(6) asserting that it failed to state a claim against him. This motion was eventually converted to a summary judgment motion when both parties submitted matters outside the pleadings during briefing.

¶ 21. After a hearing and considering all briefing before it, the county court granted summary judgment in Relle Sr.'s favor on January 14, 2013. This order was not certified as a final judgment under Mississippi Rule of Civil Procedure 54(b). Nevertheless, Patton Medical appealed this ruling to the circuit court on February 11, 2013.

Trial on Patton Medical's claims against O&P

¶ 22. Beginning January 22, 2013, the case proceeded to a two-day trial on Patton Medical's claims against O&P for its remaining share of profits under the parties' joint venture. At the close of Patton Medical's case, O&P moved for a directed verdict, arguing that Patton Medical had not established the existence of a joint venture under Mississippi law. O&P also argued that it was impossible for Patton Medical to prove that it had any degree of control over patient treatment because, for it to do so, would violate Mississippi law governing the practice of orthotics and prosthetics, namely Mississippi Code Annotated section 73-22-3 (Rev. 2017). The county court denied O&P's directed verdict motion.

¶ 23. The jury subsequently returned a verdict for Patton Medical for $101,316.69 on January 24, 2013. Judgment for Patton Medical was entered the same day. O&P then moved for a JNOV, re-asserting its arguments that Patton Medical produced insufficient evidence to establish the elements necessary to form a joint venture. Additionally, Relle Sr. moved for attorney fees as the prevailing party on an open-account lawsuit brought under section 11-53-81.

The county court's final judgment and the parties' appeal to the circuit court

¶ 24. After hearing and reviewing all briefing before it, the county court denied O&P's JNOV motion and granted Relle Sr.'s motion for attorney fees but reduced the $11,758.50 attorney fees request to $7,000, finding this to be reasonable compensation. It entered its final judgment on these issues on July 19, 2013. Both parties timely appealed to the circuit court, with O&P appealing the denial of its JNOV motion and with Patton Medical appealing the award of attorney fees under section 11-53-81 in Relle Sr.'s favor.

¶ 25. The county court's final judgment did not mention its January 14, 2013 decision granting summary judgment in Relle Sr.'s favor, nor did Patton Medical renew its notice of appeal on the January 14 order when the county court entered its final judgment in July 2013. The parties jointly moved to consolidate all their appeals, however, including Patton Medical's appeal of Relle Sr.'s dismissal. The county court granted the parties' joint motion to consolidate the appeals on December 2, 2013. The county court record was transmitted to the circuit court on October 10, 2014.

The circuit court's final judgment and Patton Medical's appeal to this Court

¶ 26. In December 2016, the circuit court entered findings of fact and conclusions of law on the two issues appealed by Patton Medical, affirming the county court's summary judgment entered in favor of Relle Sr., individually; and affirming the county court's $7,000 attorney fees award to Relle Sr. under Mississippi's open-account statute. On that same date the circuit court entered separate findings of fact and conclusions of law reversing the county court's denial of O&P's JNOV motion and rendering judgment in O&P's favor. On January 20, 2017, the circuit entered its final judgment on these rulings. Patton Medical timely appealed. As set forth below, applying the controlling standard of review to the evidence as a whole in the light most favorable to the verdict, there was sufficient evidence to support the jury's verdict and award of damages and the county court's judgment.

DISCUSSION

I. The circuit court's granting of O&P's JNOV motion and rendering judgment in O&P's favor

¶ 27. Patton Medical contends that the circuit court erred in granting O&P's JNOV motion which reversed the county court's denial of that motion and the jury verdict in Patton Medical's favor. On appeal, Patton Medical primarily argues that in reversing the county court's decision, the circuit court improperly relied upon section 73-22-3, which, as noted above, governs the licensing and regulation of the practice of orthotics and prosthetics. Patton Medical also contends that the jury heard ample evidence to find that a joint venture existed between it and O&P.

¶ 28. "The standard of review for the grant or denial of a motion for a JNOV is de novo." Wilty v. Alpha , 99 So.3d 830, 833-34 (¶ 18) (Miss. Ct. App. 2012) (citing InTown Lessee Assocs. v. Howard , 67 So.3d 711, 718 (¶ 22) (Miss. 2011) ). A motion for [a] JNOV is a challenge to the legal sufficiency of the evidence, and this Court will affirm the denial of a JNOV if there is substantial evidence to support the verdict." InTown Lessee Assocs., 67 So.3d at 718 (¶ 22). In making this determination, the appellate court is to "consider the evidence in the light most favorable to the appellee, giving the party the benefit of all favorable inferences that may be reasonably drawn from the evidence." Id. When presented with a motion for a JNOV, both the trial court and the appellate court face "the same question-whether the evidence, as applied to the elements of a party's case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated." Id.

Overview of Patton Medical's joint venture claim and the applicable law

¶ 29. In this case, Patton Medical claims as follows: that it entered into a joint venture with O&P; that the parties agreed that the profits were to be split equally between Patton Medical and O&P; and that O&P failed to pay Patton Medical the amounts due it under the joint business venture. The county court instructed the jury that if it found by the preponderance of the evidence that "there was a joint venture entered into between the parties and that [Patton Medical] is entitled to one-half of the profits, then you shall return a verdict for [Patton Medical] in the amount that you deem [Patton Medical] is owed for its furtherance of the joint venture."

¶ 30. To guide it in making this decision, the county court instructed the jury on the elements necessary to create a joint venture. Under Mississippi law, "a joint venture [is] an association of persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, efforts, skill[,] and knowledge." Pittman v. Weber Energy Corp. , 790 So.2d 823, 826 (¶ 10) (Miss. 2001) (quoting Hults v. Tillman , 480 So.2d 1134, 1142 (Miss.1985) ). Further, a joint venture "exists when two or more persons combine in a joint business enterprise for their mutual benefit with an understanding that they are to share in profits or losses and each to have a voice in its management." Pittman , 790 So.2d at 826 (¶ 10) (quoting Hults , 480 So.2d at 1142 ) (emphasis omitted). In order to form a joint venture, "there must be a joint proprietary interest and right of mutual control." Adams v. Hughes , 191 So.3d 1236, 1242 (¶ 16) (Miss. 2016) (other citation omitted). Finally, "actual intent to form a joint venture is essential." Hults , 480 So.2d at 1143.

¶ 31. The record contains ample evidence supporting Patton Medical's claims of a joint venture and the jury's related award of damages. This includes the deposition testimony of Relle Sr., which was read at trial, wherein he admitted to the existence of a joint venture and to an agreement to a 50/50 split of the profits. Wade and Rubenstein also testified that the parties agreed to do business together as a joint venture and that they agreed to share the profits on a 50/50 split. The crux of the dispute between the parties pertained to whether the fabrication costs were to be deducted from Patton Medical's or O&P's portion of the profits. The jury reached a verdict in Patton Medical's favor, and awarded Patton Medical $101,316.69 in damages. Even though there was sufficient evidence supporting the county court jury verdict and damages award, the circuit court reversed the verdict based upon an erroneous application of the law. The circuit court found that Patton Medical failed to meet both the intent and mutual control elements of its joint venture claim. For the reasons discussed below, we find that the circuit court's findings of fact as to the intent and mutual control elements were erroneous.

The intent element of Patton Medical's joint venture claim

¶ 32. In reviewing the county court's denial of O&P's JNOV motion, the circuit court was bound by the same standard of review that this Court must apply. To briefly reiterate, we must review the evidence in the light most favorable to Patton Medical and decide "whether the evidence, as applied to the elements of [Patton Medical's] case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated." See InTown Lessee Assocs. , 67 So.3d at 718 (¶ 22) (internal citations and quotations omitted).

¶ 33. The circuit court's findings of fact and conclusions of law reflect that it did not apply the controlling standard of review in determining that Patton Medical did not meet the "intent" element of its joint venture claim. Instead, the circuit court reweighed the evidence and found that Patton Medical failed to establish by a preponderance of the evidence that the parties intended to form a joint venture. The circuit court concluded that the parties did not intend to form a joint venture because their agreement lacked specificity, and the parties entered their agreement on a trial basis.

¶ 34. The circuit court erred in substituting its judgment for that of the jury. As stated, applying the proper review standard, the record reflects that there was substantial evidence to support the jury's verdict in this case.

¶ 35. As detailed in the fact section above, the jury heard evidence that O&P and Patton Medical agreed to a joint business enterprise in which Patton Medical would supply the patients, a facility to see the patients, and marketing and sales. O&P would supply an orthotist/prosthetist once a week to see patients at the Patton Medical Ocean Springs facility, and it would provide patient billing, technical support, purchasing, and accounting services. The jury also heard testimony from both O&P and Patton Medical that they would split the profits 50/50. The joint venture continued for four to five months with the parties performing these responsibilities. During this time O&P also purchased business cards for Rubenstein and Wade under O&P's name, and O&P hired another orthotist/prothetist to work primarily with Patton Medical. O&P paid over $196,000 to Patton Medical in 2010. Regarding damages, Wade testified at length explaining the additional amounts Patton Medical believed that it was owed.

¶ 36. Finally, even if the parties agreed to try the arrangement on a trial basis, that would not constitute grounds for finding a lack of intent. The Mississippi Supreme Court has explicitly recognized that a joint venture is generally for a limited or shorter duration than a typical partnership. See, e.g. , Hults , 480 So.2d at 1142. In short, the jury heard legally sufficient evidence supporting the intent element of Patton Medical's joint venture claim.

The mutual control element of Patton Medical's joint venture claim

¶ 37. In ruling on the county court appeal, the circuit court, in its findings, also erroneously determined that Patton Medical did not present any evidence supporting the mutual control element necessary to find that a joint venture was formed. The circuit court reached this conclusion by relying on section 73-22-3 ; particularly its mandate that "the measuring, fitting, adjusting and approval of any orthotic or prosthetic device furnished to a patient shall be performed only under the direct supervision of a board certified orthotist [for orthotics]... or board certified prosthetist [for prosthetics]." Miss. Code Ann. § 73-22-3(3).

¶ 38. As noted above, neither Wade nor Rubenstein were certified in orthotics or prosthetics, and Wade testified at trial that they always were under the direction of O&P's certified practitioners when working with orthotic or prosthetic patients. Based on this testimony, the circuit court concluded that Patton Medical did not present evidence that it exercised the requisite mutual control over patient treatment because its principals could not treat patients independently. The circuit court further found that any venture Patton Medical formed with O&P would be void as a matter of law because to do so would require Patton Medical to provide services it could not legally provide without violating section 73-22-3(3). After reviewing the record, the Court finds that the circuit court's conclusions on this issue are erroneous.

¶ 39. First, the circuit court impermissibly substituted its judgment for that of the jury on this issue and erroneously applied section 73-22-3(3) to the joint venture. In its opinion on O&P's appeal, the circuit court found that "it appears that the jury did not follow the county court's instructions regarding the necessity that the proponent of a joint venture prove its right to exercise mutual control over the purpose of the joint venture." The record reflects, however, no question as to the jury's compliance with the county court's instructions, and O&P raises no issue as to the instructions given. Rather than determining whether evidence in the record supported the jury verdict, the circuit court, instead, determined that Patton Medical did not prove the mutual control element of its joint venture claim, and the circuit court further found that the jury ignored evidence showing Patton Medical could not do so.

¶ 40. As an initial matter, jurors are presumed to follow the trial judge's instructions. Ivy v. Gen. Motors Acceptance Corp. , 612 So.2d 1108, 1113 (Miss. 1992) ; Goodyear Tire & Rubber Co. v. Kirby , 156 So.3d 281, 308 (¶ 82) (Miss. Ct. App. 2009). More importantly, as noted, the record reflects no indication that the jurors failed to follow the instructions they were given. Patient care was but one aspect of the joint venture between Patton Medical and O&P. Mississippi law does not require that every party to a joint venture exercise control over every aspect of the business enterprise. In Putt v. Ray Sewell Co. , 481 So.2d 785, 786-87 (Miss. 1985), for example, the Mississippi Supreme Court held that "[t]here was more than sufficient evidence for a reasonable jury to find the existence of a joint business venture between the parties" where one party provided the capital and advice, while the other two parties provided "the skill and labor needed in the actual operation." See also Braddock Law Firm, PLLC v. Becnel , 949 So.2d 38, 51 (¶ 48) (Miss. Ct. App. 2006) (finding parties had formed a joint venture and the mutual control element was met where one party did the negotiating while the other group handled the administrative work).

¶ 41. It is true that the control element is not satisfied where a party has "no control or involvement in the operations or management of the [alleged joint venture]." Adams , 191 So.3d at 1242 (¶ 16) (emphasis added); see also Pittman , 790 So.2d at 827 (¶ 11). However, the evidence in the record reflects that this is not the case here. The joint venturers need only have a "voice in the management," Pittman , 790 So.2d at 826 (¶ 10), and the jury heard ample evidence regarding the parties' respective responsibilities and the contributions that each made towards operating and managing the business enterprise as a whole.

¶ 42. Second, we find no support for the circuit court's conclusion that a joint venture between Patton Medical and O&P would be void as a matter of law under section 73-22-3. This statute does not prohibit the association of certified orthotists or prosthetists with non-licensed persons. Indeed, the act broadly defines "person" as "any individual, corporation, partnership, association[,] or other organization." Miss. Code Ann. § 73-22-1(e) (Rev. 2017). Regarding section 73-22-3(3) in particular, this subparagraph simply requires that whenever a "person" (here the joint venture between O&P and Patton Medical) utilizes an orthotist or prosthetist in connection with the "person's" business, all patient care must be done under the direct supervision of the certified orthotist or prothetist. As Wade's testimony shows, Patton Medical complied with this requirement.

¶ 43. In sum, and in returning to the applicable standard of review, the evidence before the jury was not so indisputable or deficient that the need for a jury was obviated on either the intent or the mutual control elements of Patton Medical's joint venture claim. The circuit court erred in substituting its judgment "for that of the jury when reasonable jurors could differ on the verdict from the evidence presented." Wilty , 99 So.3d at 834 (¶ 21). We also find there is no basis for holding that section 73-22-3 would render a joint venture between Patton Medical and O&P

void as a matter of law. We therefore reverse the circuit court's judgment granting O&P's JNOV motion and reinstate the jury's verdict and county court's judgment in Patton Medical's favor.

¶ 44. As for the amount of damages the jury assessed, we note that O&P did not seek remittitur in the county court. Likewise, it did not raise this issue on appeal to the circuit court or before this Court. As such, O&P did not preserve any claim for remittitur, and the record reflects that there was substantial evidence to support the jury's verdict for $101,316.69. We therefore affirm its award.

II. The circuit court's affirmance of the county court's decision granting Relle Sr.'s motion for summary judgment

¶ 45. Patton Medical contends that the circuit court erred in affirming the county court's decision granting Relle Sr.'s motion for summary judgment because it had presented sufficient evidence to create genuine issues of material fact whether Relle Sr. was individually liable for unpaid profits owed to Patton Medical. Before addressing Patton Medical's contentions on the merits of this issue, we first address the sufficiency of Patton Medical's premature notice of appeal to the circuit court on the county court's summary judgment order. As noted above, this order was entered on January 14, 2013, and it was not certified as a final judgment. Nevertheless, Patton Medical appealed this ruling to the circuit court on February 11, 2013.

¶ 46. Though all issues before the county court became ripe for appeal when it entered its final judgment on July 19, 2013, Patton Medical did not renew or refile its notice of appeal. Subsequently, however, the parties filed a joint motion to consolidate all their appeals, including this appeal, and the county court granted their motion. The circuit court affirmed the county court's summary judgment in Relle Sr.'s favor and entered its final judgment on all issues before it on January 20, 2017. Patton Medical timely appealed.

¶ 47. The Mississippi Supreme Court addressed a similar situation in Mallery v. Taylor , 792 So.2d 226, 228 (¶¶ 7-9) (Miss. 2001), and applied the doctrine of retroactive validation to find that the plaintiffs' premature notice of appeal was sufficient to confer jurisdiction on the appellate court once a final judgment was entered in the matter. In that case, plaintiffs prematurely appealed the trial court's order dismissing all claims except their claim under the Mississippi Tort Claims Act (MTCA). Id. at 228 (¶ 8). A final order was entered thirteen days later dismissing the MTCA claim. Id. Plaintiffs did not file another notice of appeal. Id.

¶ 48. Despite the fact that the case did not become ripe for appeal until entry of the final judgment on all issues, the Court applied the retroactive validation doctrine. Id. at 228 (¶ 9). The Court determined that the appellees were not prejudiced by the premature notice and applying the doctrine would not do "violence to [the] orderly judicial process" under the circumstances. Id.

¶ 49. The same analysis applies here. O&P was not prejudiced by Patton Medical's premature notice of appeal to the circuit court on the Relle Sr. summary judgment order. The parties, in fact, jointly moved to consolidate all their appeals, including Patton Medical's appeal on the Relle Sr. summary judgment order, and the county court granted this motion. Additionally, no action took place in the circuit court on this appeal until all issues were before it. Applying the doctrine here does not disrupt the orderly judicial process. The circuit court has ruled on this issue, and Patton Medical timely appealed to this Court.

¶ 50. We now address Patton Medical's contentions on the merits of this issue and the applicable standard of review. This Court reviews the grant of a motion for summary judgment de novo, viewing the evidence in the light most favorable to Patton Medical, the party opposing summary judgment. Karpinsky v. Am. Nat. Ins. Co. , 109 So.3d 84, 88 (¶ 9) (Miss. 2013). Relle Sr., as the movant, "bears the burden of persuading the trial judge that ... (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to judgment as a matter of law." Davenport v. Hertz Equip. Rental Corp. , 187 So.3d 194, 198 (¶ 10) (Miss. Ct. App. 2016) (quoting Palmer v. Biloxi Reg'l Med. Ctr., Inc. , 564 So.2d 1346, 1355 (Miss. 1990) ). Once Relle Sr. meets his burden, however, Patton Medical, as the non-movant, is "required to bring forward significant probative evidence demonstrating the existence of the triable issue of fact."See Banks ex rel. Banks v. Sherwin-Williams Co. , 134 So.3d 706, 710 (¶ 10) (Miss. 2014). "[S]ummary judgment is appropriate when the non-moving party has failed to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Karpinsky , 109 So.3d at 89 (¶ 11).

¶ 51. Here the county court granted summary judgment in Relle Sr.'s favor, finding Patton Medical failed to establish a triable issue of fact on its claim that Relle Sr. was individually liable to it for profits not paid to Patton Medical under the parties' joint venture. The circuit court affirmed.

¶ 52. Patton Medical contends that these decisions should be reversed because Relle Sr.'s discussions with Rubenstein and Wade about forming the joint venture create genuine issues of material fact as to Relle Sr.'s individual liability. After reviewing the record, we find that no genuine issue of material fact exists on this issue. For the reasons addressed below, we affirm summary judgment in Relle Sr.'s favor.

¶ 53. In support of his motion to dismiss Patton Medical's claims against him, Relle Sr. submitted his affidavit in which he denied any independent representation or commitments to Patton Medical. Relle Sr. also stated in his affidavit that there was no account between O&P and Patton Medical and that he signed no agreement in which he would be independently liable to Patton Medical. After discovery, Relle Sr. supplemented his motion with testimony from Wade's 30(b)(6) deposition showing that Patton Medical had no documents establishing Relle Sr.'s personal liability and that Wade had no recollection of meeting with Relle Sr. in his individual capacity as to this joint venture.

¶ 54. In attempting to rebut this evidence, Patton Medical relies on deposition testimony from Relle Sr., Wade, and Rubenstein regarding the formation of the joint venture. Like both the county and circuit courts, we find no indication or evidence in any of that testimony to support the assertion that Relle Sr., who was president of O&P at all relevant times, was speaking as an individual, rather than on behalf of the corporation. Throughout his deposition, in fact, Relle Sr. repeatedly spoke in terms of O&P 's responsibilities and actions with respect to the parties' joint venture.

¶ 55. Similarly, Wade's testimony that Relle Sr. "said that ... we have his word as a man that this will be taken care of, if not by his company, by him" does not support Patton Medical's claim that Relle Sr. is individually liable to it on an open-account or on any other basis. As the both the county court and circuit court held, this oral statement does not bind Relle Sr. individually to pay a corporate debt. It is barred by the statute of frauds. See Miss. Code Ann. § 15-3-1(a) (Rev. 2012) (requiring a signed writing to support any action "upon any special promise to answer for the debt or default or miscarriage of another person"); see also Carolina Transformer Co. v. Anderson , 341 So.2d 1327, 1330 (Miss. 1977) (explaining that "the situation contemplated by the statute of frauds is a gratuitous promise by a third party to pay a creditor for debts of the debtor.").

¶ 56. Patton Medical also relies on statements made by Relle Sr. in his affidavit and in his answer as support for finding Relle Sr. individually liable. In both his affidavit and his answer, however, Relle Sr. merely states that O&P agreed to enter into the joint venture, not that he, personally, was involved. These statements reflect no assumption of individual liability by Relle Sr.

¶ 57. Finally, as both the county and circuit courts also observed, Patton Medical presented no proof that Relle Sr., individually, ever received profits from the joint venture. "In simplest form, a joint venture can be defined as a single purpose partnership, whereby the joint venturers undertake a single project for profit." Duggins v. Guardianship of Washington Through Huntley , 632 So.2d 420, 427 (Miss. 1993). Profit sharing "is an essential element of partnership," Smith v. Redd , 593 So.2d 989, 994 (Miss. 1991), and, likewise, "is essential" in determining the existence of a joint venture. Hults , 480 So.2d at 1142. Though the record reflects that Patton Medical and O&P agreed to split profits 50/50, we find no proof that Relle Sr., individually, received or would receive profits from the joint venture. Without this proof, Patton Medical's joint venture claim against Relle Sr. fails for this additional reason.

¶ 58. For these reasons, we affirm summary judgment in Relle Sr.'s favor.

III. The circuit court's affirmance of the county court's decision granting Relle Sr.'s motion for attorney fees brought pursuant to Mississippi's open-account statute

¶ 59. As further detailed below, Patton Medical contends that the circuit court erred in affirming the county court's decision granting Relle Sr.'s motion for attorney fees brought pursuant to Mississippi's open-account statute because (1) the county court did not have jurisdiction to hear and decide the motion; and (2) Relle Sr. did not prevail on an open-accounts claim, so he was not entitled to attorney fees under the statute. We find both of Patton Medical's contentions without merit and affirm the circuit court's decision affirming the county court's $7,000 attorney fees award for the reasons set out below.

¶ 60. After obtaining summary judgment on Patton Medical's claims against him, Relle Sr. moved for attorney fees under section 11-53-81 because he was sued on an open-account and prevailed in the lawsuit against him. The county court granted Relle Sr.'s motion, finding it had jurisdiction to do so and was authorized to do so because the statute specifically provides that a prevailing defendant sued on an open-account "shall" be entitled to reasonable attorney fees. Applying the "lodestar" method found in Tupelo Redevelopment Agency v. Gray Corp. , 972 So.2d 495, 520-22 (¶¶ 78-82) (Miss. 2007), the county court reduced the requested fees to $7,000, finding this to be reasonable compensation. The circuit court affirmed.

¶ 61. As it did before the county and circuit courts, Patton Medical asserts two arguments opposing the attorney fees award. It first contends that after it filed its February 11 notice of appeal on the county court's January 14 summary judgment order, the county court lacked jurisdiction to take any further action relating to that issue. This issue includes, according to Patton Medical, determining whether Relle Sr. was entitled to attorney fees under the Mississippi open-account statute. We acknowledge that whether the county court had proper jurisdiction to hear and decide Relle Sr.'s motion for attorney fees is a question of law. We must, therefore, apply a de novo standard of review to this issue. Davenport v. Hansaworld, USA, Inc. , 212 So.3d 767, 770 (¶ 10) (Miss. 2017).

¶ 62. Both the county and circuit courts rejected Patton Medical's jurisdictional argument, observing that the Relle Sr. summary judgment order was not certified as a final order under Rule 54(b). As such, both courts held that Patton Medical's prematurely filed notice of appeal on that order had no affect at all on the county court's jurisdiction over the lawsuit still pending before it. We agree. As previously discussed, Patton Medical's notice of appeal was not sufficient to confer appellate jurisdiction on the circuit court until the county court entered its final judgment on July 19, 2013. Mallery , 792 So.2d at 228 (¶¶ 7-9). The county court therefore had jurisdiction to hear, rule upon, and enter judgment upon Relle Sr.'s motion for attorney fees.

¶ 63. Patton Medical's second contention is that Relle Sr. was not entitled to attorney fees under section 11-53-81. Neither party has briefed the applicable standard of review on this issue, nor was the applicable standard of review addressed in the circuit court. Patton Medical's argument reflects that its contention raises an issue of statutory interpretation, i.e., is Relle Sr. entitled to attorney fees under that portion of section 11-53-81 that provides: "If that person sued on the open-account shall prevail in the suit, he shall be entitled to reasonable attorney's fees to be set by the judge." See Magnolia Farm Servs., Inc. v. Tunica Oil Co. , 438 So.2d 285, 287 (Miss. 1983) (addressing the parties' contradictory interpretations of section 11-53-81 and observing that "[s]tatutory interpretation is the issue before us"). Statutory interpretation is also a question of law that we review de novo. See Roberts v. New Albany Separate Sch. Dist. , 813 So.2d 729, 730-31 (¶ 4) (Miss. 2002).

¶ 64. In support of this second contention involving statutory interpretation, Patton Medical argues that its open-account cause of action was just one of the claims it properly pled under the rules, Relle Sr. did not obtain a "favorable ruling" on that claim, and thus attorney fees were not authorized under section 11-53-81. We disagree.

¶ 65. Patton Medical's complaint detailed an open-account claim against Relle Sr.

and O&P. Even before filing an answer, Relle Sr. filed a Rule 12(b)(6) motion based on Patton Medical's failure to state any claim against him. In that motion Relle Sr. articulated why he was not individually liable for "debts purportedly owed on an account by ... [O&P] to ... [Patton Medical]." (Emphasis added). Relle Sr. also noted that there was no account between O&P and Patton Medical, and no writing or other agreement establishing his personal liability. Despite this early notice that Relle Sr. intended to seek dismissal of all claims against him, including the open-account claim, Patton Medical did not dismiss its open-account claim against Relle Sr. After further briefing and a hearing, the county court granted Relle Sr.'s motion in full.

¶ 66. Section 11-53-81 plainly requires that if a "person sued on the open-account shall prevail in the suit, he shall be entitled to reasonable attorney's fees to be set by the judge." Patton Medical's contention that Relle Sr. must obtain a specific "favorable ruling" on the open-account cause of action misses the point because the plain language of the statute provides that the test for whether a defendant is entitled to attorney fees under section 11-53-81 is that he be "sued on the open-account" and "prevail in the suit." Relle Sr. met both requirements here. The county court remarked several times at the summary judgment hearing that it did not believe Patton Medical had evidence supporting an open-account claim and at the same time explicitly addressed that Patton Medical did, in fact, sue Relle Sr. on that basis. The county court then granted Relle Sr.'s summary judgment motion in full. As the county court then expressed to Patton Medical's counsel at the hearing on Relle Sr.'s attorney fees motion, "[i]f you don't prevail on an Open Account, which was filed , then the statute says that the Court SHALL award attorney fees to the other side." (Bolding added; capitalization in original).

¶ 67. To clarify, we note that this is not a case like Hughes Equipment v. Fife , 482 So.2d 1144, 1146-47 (Miss. 1986), where the Mississippi Supreme Court held that a defendant cannot recover attorney fees under the open-account statute when the plaintiff voluntarily dismisses its open-account claim against him pretrial. Here Patton Medical did not voluntarily dismiss its open-account claim against Relle Sr., though it had ample opportunity to do so after having been on notice since June 2011 that Relle Sr. intended to pursue dismissal of that claim and all claims that Patton Medical attempted to pursue against him, individually.

¶ 68. Further, our own holding in H & E Equipment Servs., LLC v. Floyd , 959 So.2d 578, 583-84 (¶¶ 16-19) (Miss. Ct. App. 2007) also does not apply. There we determined that the trial court did not err in refusing to award the defendant attorney fees under section 11-53-81 where the defendant obtained summary judgment on the open-account claim against him, but the case proceeded to trial on the remaining contract claim against that defendant. In contrast, in this case, the county court did not grant partial summary judgment only on Patton Medical's open-account claim, with the case proceeding to trial against Relle Sr. on the joint venture claim. Instead, Patton Medical's lawsuit against Relle Sr., individually, was dismissed in full, thus Relle Sr. prevailed.

¶ 69. Finally, we note that Patton Medical did not contest the reasonableness of the $7,000 attorney fees award when the case was before the circuit court, nor has it done so here. Accordingly, "reasonableness" is not at issue, and we therefore do not address it here.

¶ 70. Based upon the foregoing, we affirm the circuit court's judgment that the county court's $7,000 attorney fees award under section 11-53-81 was proper and reasonable.

¶ 71. AFFIRMED IN PART; REVERSED IN PART; AND THE JUDGMENT OF THE COUNTY COURT OF THE FIRST JUDICIAL DISTRICT OF HARRISON COUNTY IS REINSTATED.

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

      For ease of reference the Court will refer to the Relles as Relle Sr. and Relle Jr., though technically Michael S. Relle is not a junior because he has a different middle name.

      As the Mississippi Supreme Court has held:
      Once the jury has returned a verdict in a civil case, we are not at liberty to direct that judgment be entered contrary to that verdict short of a conclusion on our part that, given the evidence as a whole, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could have found as the jury found.
      Entergy Mississippi, Inc. v. Bolden , 854 So.2d 1051, 1054 (¶ 6) (Miss. 2003).

      Wilty v. Alpha , 99 So.3d 830, 834 (¶¶ 20-21) (Miss. Ct. App. 2012) (citing Patterson v. Liberty Assocs. , 910 So.2d 1014, 1022 (¶ 24) (Miss. 2004) ).

      InTown Lessee Assocs. , 67 So.3d at 718 (¶ 22).

      InTown Lessee Assocs. , 67 So.3d at 718 (¶ 22).

      The circuit court also made the conclusory statement in its opinion on O&P's appeal that any contract providing that Patton Medical was entitled to share professional fees would be unenforceable. The cases the circuit court relied upon to support this proposition do not apply. They concern conduct explicitly prohibited by rule, Attorney U v. Mississippi Bar , 678 So.2d 963 (Miss. 1996) (Mississippi Rules of Professional Conduct prohibiting a fee-splitting agreement), or by statute, Bank of New Mexico v. Freedom Homes, Inc. , 94 N.M. 532, 612 P.2d 1343, 1344 (N.M. Ct. App. 1980) (statute prohibiting an unlicensed person from recovering real estate commissions). In contrast, section 73-22-3 contains no language prohibiting profit-sharing between certified orthotists or prosthetists and non-licensed persons. The circuit court's conclusion on this point is erroneous.

      We note that the Mississippi Supreme Court has applied an abuse of discretion standard when determining whether the trial court was authorized to award attorney fees to a plaintiff who successfully prevailed in his lawsuit alleging breach of contract and also claiming damages owed on an open-account. T. Jackson Lyons & Assocs., P.A. v. Precious T. Martin, Sr. & Assocs., PLLC , 87 So.3d 444, 452 (¶ 28) (Miss. 2012). In Lyons , however, the Mississippi Supreme Court did not interpret any language in section 11-53-81 but rather analyzed whether an "open-account" existed in that case. Id. at 452 (¶¶ 28-36). Here we look to the statutory language of the statute to determine whether the county court appropriately assessed attorney fees under section 11-53-81. For this reason, we find that the appropriate standard of review is de novo.

      In comparison, section 11-53-81 provides that a plaintiff may only recover attorney fees "when judgment on the claim is rendered in favor of the plaintiff." (Emphasis added). See Lyons , 87 So.3d at 452 (¶ 28) (specifically determining that plaintiff prevailed on an "open-account" lawsuit and thus the trial court did not abuse its discretion in awarding attorney fees under section 11-53-81 ); Cox v. Howard, Weil, Labouisse, Friedrichs, Inc. , 619 So.2d 908, 914 (Miss. 1993) (recognizing that "a plaintiff is not entitled to attorney's fees under section 11-53-81 where its claim against the defendant is based on contract rather than an open-account." (Emphasis added) ). This reasoning makes sense because the plaintiff is the master of his complaint, while a defendant is at the whim of the plaintiff as to what claims are brought against him. It would be patently unfair to deny a defendant an award of attorney fees where, as here, Patton Medical did not voluntarily dismiss the open-account claim, forcing Relle Sr. to seek dismissal of all claims brought against him.


source: Caselaw Access Project

author: IRVING, P.J., FOR THE COURT: WILSON, J., CONCURRING IN PART AND DISSENTING IN PART:

license: Public Domain

text:
    ESTATE OF Francis N. BURGESS Sr., Appellant v. H. Alex TROTTER, Appellee
    NO. 2016-CA-01496-COA
    Court of Appeals of Mississippi.
    April 3, 2018 Rehearing Denied September 11, 2018
    ATTORNEYS FOR APPELLANT: JOE S. DEATON III, JACKSON, RICHARD JASON CANTERBURY, FLOWOOD
    ATTORNEY FOR APPELLEE: JOHN DENVER FIKE, RAYMOND
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. The Estate of Francis N. Burgess Sr. (Burgess) appeals the judgment of the Hinds County Circuit Court, First Judicial District, rendered in favor of H. Alex Trotter (Trotter). Burgess submits three alleged errors: (1) the trial court's order was against the overwhelming weight of the evidence; (2) the amount of damages awarded was not supported by the evidence; and (3) the trial court erred by failing to articulate its findings of fact and conclusions of law.

FACTS

¶ 2. On May 12, 1999, Trotter filed a complaint in the County Court of Hinds County, First Judicial District, against his neighbor, Burgess. Trotter alleged that Burgess had trespassed on his land numerous times, removed posted signs, and damaged various items of property. While the case was pending, an ancillary chancery court proceeding concerning the ownership of the land in question was also ongoing, and, ultimately, the chancery court ruled that Trotter was the owner of the land in dispute. In the interim, Burgess passed away.

¶ 3. During the trial, which was held in 2014, Trotter submitted financial documents to substantiate his claims for damages. Trotter also called numerous witnesses to testify as to Burgess's activities on his land. Burgess filed a motion for findings of fact and conclusions of law on January 14, 2014. The county court entered its order on January 31, 2014, finding that Burgess had trespassed on property owned by Trotter. The county court awarded Trotter $59,915.40 in damages and $13,181 in attorney's fees. The county court's order was later amended to include an eight percent post-judgment-interest adjustment. On February 19, 2014, the county court entered an order denying Burgess's January 14 motion.

¶ 4. On March 14, 2014, Burgess appealed the county court's judgment to the circuit court. Burgess cited four alleged errors: (1) the county court erred by failing to make findings of fact; (2) the award of damages was not supported by substantial evidence; (3) the award of post-judgment interest was improper; and (4) the award of attorney's fees was improper. On September 19, 2016, the circuit court affirmed the county court's judgment with respect to issues one through three, but found that attorney's fees were improper. Burgess appeals.

DISCUSSION

¶ 5. The standard of review for "factual determinations made by the trial judge as the sole trier of fact in a bench trial is the substantial evidence standard. The findings of the trial judge will not be disturbed unless the judge abused his discretion, was manifestly wrong or clearly erroneous or applied an erroneous legal standard." Delta Reg'l Med. Ctr. v. Taylor , 112 So.3d 11, 19 (¶ 21) (Miss. Ct. App. 2012) (internal quotations and citations omitted).

¶ 6. In addition to Burgess's arguments below, he contends that there should have been a jury trial. Trotter correctly responds that this issue was not brought before the county court, and there is no evidence in the record that Burgess requested a jury trial or objected to a bench trial. As such, this issue is procedurally barred.

I. Weight of the Evidence

¶ 7. Burgess argues that Trotter's claims are not supported by substantial, credible, and reasonable evidence. He asserts that the county court erred by misjudging the credibility of Trotter and his witnesses; admitting Trotter's financial records; and not ruling in accordance with what he believes was overwhelming evidence against Trotter. Trotter argues that based on the record, which is replete with eyewitness testimony, and documentary evidence to support the damages award, the decision of the court should be affirmed.

¶ 8. The county court found that the testimony and supporting documentation established that Burgess: (1) destroyed Trotter's fence surrounding his property several times; (2) burned hay located on Trotter's property; (3) plowed up Trotter's crops; (4) damaged Trotter's tractor; (5) destroyed several "no trespassing" signs located on Trotter's property; (6) caused Trotter to have to hire a surveyor on multiple occasions; (7) assaulted Trotter, resulting in medical bills; and (8) was responsible for several other property-related damages.

¶ 9. Trotter testified as to each of those eight allegations and provided documentary evidence to substantiate the amount of damages. He stated that he personally witnessed most of the damage, he was assaulted by Burgess, and he had to call the police several times because of Burgess's actions. In addition to Trotter's testimony, the county court heard from several other witnesses who testified that they personally saw Burgess trespass on Trotter's property and cause damage. Elmer Everett, one of Trotter's employees, testified that he saw Burgess tear down Trotter's fences, damage Trotter's trailer, assault Trotter, and plow up Trotter's fields. Trotter's wife, Donna Trotter, testified that she saw Burgess cut down fences on three separate occasions. Trotter's oldest son, Wilson Trotter, testified that he saw Burgess cut down Trotter's fences, and, although he was not personally there to witness Burgess burning the hay or plowing the fields, Wilson testified as to his personal knowledge of the aftermath.

¶ 10. As stated, in "a bench trial, the [trial judge] is the finder of fact and, thus, solely determines the credibility of witnesses and the weight to give to the evidence. We cannot reweigh the evidence and must defer to the [trial judge]'s findings of the facts, so long as they are supported by substantial evidence." Stasher v. Perry , 217 So.3d 765, 772 (¶ 31) (Miss. Ct. App. 2017) (internal quotations and citations omitted).

¶ 11. Based on the record, we find that the county court's findings are supported by substantial evidence. Thus, this issue is without merit.

II. Damages

¶ 12. Next, Burgess argues that the county court erred in awarding Trotter damages. He states that the damages should not have been awarded because they were not based on adequate proof and were too speculative. He also contends that because the county court did not issue findings of fact, it is unknown whether certain items were improperly included in the court's calculation of damages. He therefore requests that the case be reversed and remanded for the county court to make specific findings of fact.

¶ 13. Trotter notes that he introduced evidence in the form of canceled checks, estimates for fencing replacement, costs for surveys, labor for repairs, repairs for damaged tractor parts, damaged trailer parts, lost hay costs, and costs to repair a damaged hay field. Trotter argues on appeal that the record is void of any cross-examination which would call into question the validity of the expenses and damages and that there were no objections from Burgess when the evidence was introduced. Trotter is incorrect. There were numerous objections to the introduction of certain evidence offered by Trotter. Additionally, the record reflects that Burgess's attorney's cross-examination attacked the validity of the evidence offered against Burgess. Nevertheless, we find that the court's award of damages is supported by substantial evidence.

It is well-understood that in an action seeking damages, the plaintiff bears the burden of proof as to the amount of damages. This requires the plaintiff to place into evidence such proof of damages as the nature of case permits, with as much accuracy as is reasonably possible. Where the existence of damages has been established, the plaintiff will not be denied the damages awarded by a fact finder merely because a measure of speculation and conjecture is required in determining the amount of the damages.

J.K. v. R.K. , 30 So.3d 290, 299 (¶ 34) (Miss. 2009) (internal quotations and citations omitted). Based on our review of the record, we find that Trotter satisfied his obligation to prove by credible evidence that he suffered the damages that he claimed, except as to the amount claimed for the repair of the fence. We find that the amount for the cost of the fence should be $45,833.68, rather than the claimed amount of $47,743.40. Therefore, as discussed more fully below, we modify the judgment to reflect an amount of $58,005.68, with the judgment accruing post-judgment interest at the rate of eight percent.

¶ 14. The dissent takes issue with the amount of damages awarded by the trial court, explaining that the mathematical calculation for the fence repair on the damage summary sheet submitted by Trotter is incorrect and that the supporting documentation does not support the ultimate figure reflected on the damage summary sheet as the total cost for repairing the fence. The dissent, in further buttressing its argument that the evidence does not support the amount of damages awarded, points out that Trotter testified to the penny about a cost-estimate proposal that he received for repairing the fence, yet he did not produce it, and more importantly, did not hire the preparer of the estimate, nor any third party, to repair the fence. Finally, the dissent argues that "there is no evidence that Trotter ever paid the amount of the estimate, or anything close to it, to replace the fence"-pointing out that the checks and receipts that Trotter presented total only about $10,000.

¶ 15. We agree with the dissent that the damage summary sheet indicates that the cost for repairing the fence is shown as $11,348.42 and that four times that figure equals $45,393.68, not $47,743.40, as reflected on the summary sheet. The dissent is correct that Trotter did not produce an estimate for $11,348.42. He did, however, produce an estimate for $11,935.85 from All Metro Fence Company, dated January 2, 2014.

¶ 16. Danny Street, owner of All Metro Fence Company, was accepted as a person qualified to give cost estimates for building farm fences. He testified that he had been in the fence building business approximately nine years. He further testified that he had visited Trotter's farm and had observed fences knocked down on the property. He could not recall the precise year that occurred, but he knew that it was not as far back as 1997, 1998, or 1999. However, he testified that back then, the cost would have been approximately four percent less than the cost in 2014. Therefore, the evidence shows that Trotter proved by credible evidence that the cost of repairing the fence at the time Burgess destroyed it four times was at least $11,458.42 ($11,935.85 minus four percent-$477.43-equals 11,458.42).

¶ 17. Trotter was entitled to recoup the aggregate cost of having to repair his fence the four times that Burgess destroyed it. It appears the dissent concedes as much but argues that since Trotter repaired the fence himself, using his farm labor, and presented receipts, which represented only some of the repair costs claimed, he was only entitled to receive the exact amount of the total of the receipts produced, despite Trotter's testimony that the receipts did not cover all of his costs. It is obvious to us that the purpose of Street's testimony was to show the reasonableness of the cost claimed by Trotter for the restoration of his fence.

¶ 18. For several reasons, we cannot agree with the apparent view of the dissent that since Trotter chose to repair the fence himself (using his farm laborers), he was not entitled to receive the amount that a commercial fence builder like All Metro Fence Company would have charged. First, there is no requirement in our law that Trotter had to repair the fence at all before he could recover from Burgess for the damages that Burgess caused. He could have chosen to prove his damages by showing what it would have cost him to have it repaired by a commercial entity in the fence building/repair business and simply kept the money. Second, our law does not require that the cost an injured party is entitled to receive to repair his property damaged by another must be diminished if the injured party is able to repair the damaged property himself at a cost less than that charged by a qualified commercial entity. Third, the measure of damages due an injured party is determined by the reasonableness of the amount claimed to make the injured party whole, and the fact that the injured party can, and may, repair the property himself at a lower cost is of no consequence. Would an automobile body shop owner be precluded from recovering the commercial cost of repairing his vehicle damaged by another simply because he could repair it cheaper than what it would cost him to have it repaired by another body shop not extending any professional courtesies? We think not. The amount that it takes to make an injured person whole-and the amount that the tortfeasor must pay-is not dependent upon the skills or ingenuity of the injured party or the consideration that others may extend to him regarding his injury.

¶ 19. We agree that Trotter did not produce receipts totaling anything near the amount he claimed. However, we see no reason to reverse the amount of damages awarded based on the proof presented. In arriving at this conclusion, we note that there was no objection to Street being accepted as a person qualified to give cost estimates for building/repairing farm fences, nor was there any objection to composite Exhibit No. 7, that contained the $11,935.85 proposal for repairing the amount of fence destroyed by Burgess. As stated, Street testified without objection that at the time of the destruction of the fence by Burgess, it would have cost approximately four percent less than the amount of his current proposal to repair the fence. Trotter testified without objection that Burgess destroyed Trotter's fence four times and that Trotter repaired the fence on four separate occasions. And finally, of utmost importance is the fact that Burgess offered no evidence contradicting or rebutting any of Street's testimony regarding the cost of repairing the fence.

¶ 20. The dissent says that the essence of our holding is: if someone knocks down a property owner's fence, and the property owner has the fence repaired at a cost of only $10,000, the property owner can nevertheless recover $45,000 in damages as long as the property owner can find someone to give him an estimate of $45,000 for a new fence. That view is a gross misrepresentation of the facts and what we hold. In reaching this conclusion, the dissent overlooks some undisputed facts.

¶ 21. First, as stated, Trotter testified that Burgess destroyed Trotter's fence on four separate occasions, and Trotter repaired it on four separate occasions. This testimony was not rebutted. Trotter's failure to produce receipts totaling the amount that he claimed he was damaged does not refute his testimony that he repaired the fence on four separate occasions, nor does it prove that his damages only totaled the amount of the receipts that he was able to produce. Such failure is simply a fact to be weighed by the fact finder.

¶ 22. Second, by his testimony, Trotter established that other receipts existed at one time; he was just unable to locate all of them. That he could not locate all of them does not necessarily render his testimony incredible given that the destruction of the fence occurred more than fourteen years prior to the trial. In any event, this was also a fact to be weighed by the fact finder.

¶ 23. Third, even if Trotter had been able to locate and present receipts for all of his expenditures, he still would have had to show that the expenditures were reasonable and necessary. What if Trotter had produced receipts totaling $75,000 and testified that all of the expenditures were incurred in repairing the fence that Burgess destroyed, would he have been able to recover that amount simply because he was able to produce receipts totaling $75,000? Of course not; he still would have had to show that the amount claimed was reasonable and necessary. Such example exposes the fallacy of the dissent's argument that Trotter was not entitled to recover the reasonable cost of the necessary repairs to his fence simply because he did not have all the receipts representing the expenditures that he incurred in making the repairs. If that were true, then the opposite corollary would be too. In the $75,000 fact scenario, Trotter, without providing any additional evidence, could recover the $75,000.

¶ 24. Street's testimony completed Trotter's burden of proof to show that the cost claimed was reasonable. No one disputes that repairing the fence was necessary or that Trotter repaired it four times. As stated, the dissent's contention-that Trotter is not entitled to recover the reasonable cost of the necessary repair of his fence that Burgess destroyed because he repaired the fence himself, perhaps for an amount less than the market rate, rather than have it repaired by someone else at the market rate-is not supported by our law. Reasonable cost is determined by what a qualified person-performing the kind of services that are required to make the necessary repairs-would charge the general public to make the repair, not by the number of receipts that an individual whose property has been destroyed produces and assigns to the repair job. Here, the market rate for the repair was provided by the unchallenged testimony of Street.

¶ 25. Extending the dissent's reasoning to its furthest extent would produce abnormal results that have no basis in the law.

Consider this: would not a property owner-who gets three cost-estimate proposals from three persons who are qualified to give estimates for the repair of his property that has been damaged or destroyed by another and collects the amount specified in the lowest proposal from the person who caused the damage, but repairs his property himself for an amount lesser than the amount of the lowest proposal-commit fraud, and, presumably, be liable for the difference to the person who damaged his property?

¶ 26. Based on the evidence presented, the trial court could reasonably find from substantial evidence that for the four times that Trotter had to repair his fence, he was entitled to four times the amount that it would cost for one repair. Street's testimony was sufficient to establish the reasonable cost of one repair. Doing the calculation reveals that the amount to assign to the cost of the fence repair is $45,833.68. On the damage summary sheet, the cost of the fence repair is listed as $47,743.40. Not listed is the hospital expense that Trotter incurred when he had to be taken to the hospital after being assaulted by Burgess. Trotter testified that his hospital cost was $1,000. We are reasonably sure that Trotter endured some pain and suffering as a result of the assault. However, apparently he did not make a claim for any. As stated, the total judgment awarded was $59,915.40. We find from our perusal of the record substantial evidence to support it. Nevertheless, the judgment included a specific amount ($47,743.40) as the cost of repairing the fence, and the evidence supports a finding that the fence could have been repaired four times for $45,833.68, a net difference of $1,909.72. We, therefore, modify the judgment to reflect this change, and affirm the judgment in the modified amount of $58,005.68, plus post-judgment interest at the rate of eight percent.

III. Findings of Fact and Conclusions of Law

¶ 27. Finally, Burgess asserts that the county court erred by not providing findings of fact and conclusions of law after he made two requests that they be provided. "In all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon and judgment shall be entered accordingly." M.R.C.P. 52(a).

¶ 28. Trotter notes that when the county court was prepared to hear Burgess's motion, Burgess's counsel had voluntarily left the court, without arguing the motion. Trotter also asserts that there were sufficient findings of fact in the county court's opinion as evidenced by the circuit court's conclusion that it could not "say the county court failed to make findings of fact although the order is rather short, it does list the particular conduct for which damages are awarded." "[A]lthough [appellate courts] prefer[ ] trial courts to make separate particularized findings of fact and conclusions of law, general findings of fact and conclusions of law do not require reversal, and they technically conform to the requirements of [ Rule] 52." Ill. Cent. R. Co. v. McDaniel , 951 So.2d 523, 529 (¶ 21) (Miss. 2006). Based on trial testimony and documentary evidence, the trial court properly found that Burgess repeatedly trespassed onto Trotter's land causing severe damage by willfully doing things such as tearing down fences, burning hay, plowing crops, and damaging farm equipment. Although short, the court articulated its findings, and we find them sufficient to satisfy the requirements of Rule 52(a). This issue is without merit.

¶ 29. AFFIRMED AS MODIFIED.

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

WILSON, J., CONCURRING IN PART AND DISSENTING IN PART:

¶ 30. I concur in Parts I and III of the majority opinion, as I agree that there was evidence to support the trial judge's findings that Burgess trespassed and caused damage to Trotter's property, and I agree that the trial judge made sufficient findings under Rule 52. However, I dissent as to Part II because the evidence does not support the amount of damages awarded. I would reverse and remand for a new trial on damages.

¶ 31. A one-page "Damage Summary" that "[Trotter] and [his lawyer] composed in anticipation of trial" was admitted into evidence over Burgess's objections. The document lists eleven types of alleged damages totaling $59,915.40, and the trial judge ultimately awarded Trotter exactly that amount in damages. The most significant line on the list by far relates to Burgess's destruction of Trotter's fence. The line, which accounts for almost eighty percent of Trotter's alleged damages, states as follows:

1. Cost of Fence - ($11,348.42 x 4) $47,743.40

¶ 32. Trotter and other witnesses testified that Burgess completely destroyed Trotter's approximately half-mile fence four different times, hence the notation, "x 4." Trotter said that this occurred in September 1998 and in January, February, and March 1999.

¶ 33. There was testimony to support Trotter's claim that Burgess damaged or destroyed the fence four times, but the basis for Trotter's damages claim and calculation is not entirely clear and lacks support in the evidence. To begin with, the math is wrong. $11,348.42 multiplied by four is only $45,393.68-or $2,349.72 less than Trotter claims. I cannot discern from the record an explanation for this error.

¶ 34. But the problems with this claim for damages run deeper than bad math. Trotter testified that at an unspecified time he obtained an "estimate" for the cost of replacing the fence from an unidentified third party. Although Trotter testified to the amount of this estimate to the penny, he did not introduce the actual estimate into evidence. Apparently, he no longer had it. More important, there is no evidence that Trotter ever paid that amount, or anything close to it, to replace the fence. Nor is there any evidence that any third party ever did any work for Trotter based on the estimate. Rather, witnesses testified that Trotter's farmhand, Elmer Everett, and Trotter's son, Wilson, repaired the fence with the help of some other workers who Trotter paid by the hour.

¶ 35. Consistent with his testimony, Trotter offered as evidence a number of cancelled checks payable to Everett and others with notations such as "farm labor" and a number of receipts from a hardware store for barbed wire and other materials. The checks were written in 1998, 1999, and 2000; they cover the entire time period of the four alleged incidents, and some even predate the first alleged fence destruction. Trotter testified that the checks showed "many of the expenses that [he] incurred" rebuilding the fence, and he testified that he "ha[d] a lot of [the checks]," but some were missing. However, all of these cancelled checks and receipts appear to reflect only about $10,000 in expenditures by Trotter. There is no evidence in the record to indicate that the actual cost of repairing the fence was anything close to the $47,743.40 that Trotter claimed as damages.

¶ 36. "Where the injury to property is repairable, the cost of repairs is a proper measure of damages." Thomas v. Global Boat Builders & Repairmen Inc. , 482 So.2d 1112, 1115 (Miss. 1986) (quoting Teledyne Exploration Co. v. Dickerson , 253 So.2d 817, 819 (Miss. 1971) ). A plaintiff's "proof must establish (1) that the repairs were necessary as the result of the wrongful act, and (2) that the cost was reasonable." Id. "[A] plaintiff is required to place into evidence such proof of damages as the nature of his case permits, with as much accuracy as is reasonably possible for him." Id. at 1116. "When a plaintiff has available to him sources and means whereby damages may be calculated to a fair degree of certainty, as in this case, and he does not secure for trial such available proof, the [trial] judge is perfectly correct in presuming if the plaintiff had any actual proof of damages he would have come forward with it." Id. at 1117.

¶ 37. An estimate for repairs may be valid evidence of damages in cases in which the damage to the property has not been repaired at the time of trial. However, when, as in this case, the property has already been repaired, it makes no sense to award damages based on an alleged estimate by an unidentified third party who apparently did not make the repairs. The actual cost of the repairs should be the measure of damages, and it was Trotter's burden as the plaintiff to demonstrate the actual cost he incurred in making the repairs.

¶ 38. Bottom line, this is what the majority opinion holds: If someone knocks down my fence, and I actually have the fence repaired at a cost of only $10,000, I can nevertheless recover $45,000 in damages as long as I can find someone to give me an estimate of $45,000 for a new fence. That is not the law. Thomas , 482 So.2d at 1115 ("Where the injury to property is repairable, the cost of repairs is a proper measure of damages."). To be clear, the problem in this case is not simply that Trotter produced just $10,000 in checks and receipts to support a claim for $47,743.40 in damages. The problem is that Trotter produced no evidence that he actually spent anything approaching $47,743.40 to repair his fence.

¶ 39. In a bench trial, the trial judge's award of damages will be set aside if it is so excessive "as to strike mankind at first blush as beyond all measure, unreasonable in amount and outrageous." Johnson & Johnson Inc. v. Fortenberry , 234 So.3d 381, 404-05 (¶ 84) (Miss. 2017) (quoting Foster v. Noel , 715 So.2d 174, 183 (¶ 56) (Miss. 1998) ). The award in this case is beyond all measure, unreasonable, and outrageous because there is no evidence that it bears any rational relationship to the actual cost of repairs incurred by Trotter. Accordingly, I would reverse and remand the case for a new trial on damages. See, e.g. , Univ. of S. Miss. v. Williams , 891 So.2d 160, 175-76 (¶¶ 46-48) (Miss. 2004) ; Savage v. LaGrange , 815 So.2d 485, 489 (¶ 7) (Miss. Ct. App. 2002).

GRIFFIS, P.J., JOINS THIS OPINION.

      Any further references to Burgess will refer to his estate's representation of this matter, unless otherwise stated or context dictates differently.

      Trotter offered a damage summary sheet into evidence that showed the total damages suffered to be $59,915.40. Included in that total was $47,743.40 representing the cost to repair the fence four different times.

      Trotter testified that Burgess destroyed sections of Trotter's fence four times and that he had to repair it on four separate occasions.

      Although the majority emphasizes that the trial occurred fourteen years after the events at issue, see ante at ¶ 22, Trotter and Burgess were already involved in related litigation when these events occurred, see Burgess v. Trotter , 840 So.2d 762, 764 (¶ 3) (Miss. Ct. App. 2003), and Trotter filed the complaint in this case only two months after the fourth alleged fence destruction. The law presumes that Trotter retained whatever proof of damages he had. See Thomas , 482 So.2d at 1117. The majority, in contrast, assumes that Trotter lost or lacked documentation for about $37,000 out of a claim for $47,743.40 in damages.

      The majority alternately defends this holding, see, e.g. , ante at ¶¶ 18, 24, and disavows it, see, e.g. , ante at ¶ 20. The majority also makes various claims about what "our law" does or does not require, but its entire of discussion of this issue does not cite a single case. There is, for example, no authority cited for the proposition that an estimate offered by a "qualified person" to the "general public" is the measure of damages-even if the repairs have been made, and the estimate bears no relationship to the plaintiff's actual cost of making the repairs. See ante at ¶ 24.

      To answer the rhetorical question posed in paragraph 18 of the majority opinion, if an auto body shop owner actually repairs his car at a cost of only $1,000, then, yes, that is his cost of repairs and the proper measure of damages. He cannot recover $5,000 just because another body shop gives him an estimate for that amount.


author: TINDELL, J., FOR THE COURT:

text:
    Willie Lee WILLIAMS a/k/a Black Bill a/k/a Willie Williams, Appellant v. STATE of Mississippi Appellee
    NO. 2016-CP-01702-COA
    Court of Appeals of Mississippi.
    April 3, 2018
    WILLIE LEE WILLIAMS (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH, JACKSON
    EN BANC.
   TINDELL, J., FOR THE COURT:

¶ 1. Willie Lee Williams appeals his unsuccessful motion to vacate his sentence which the Marion County Circuit Court denied on the basis that it was barred as a subsequent motion for postconviction relief (PCR). Because Williams's PCR motion was frivolous, time-barred, and successive-writ barred, we affirm the trial court's judgment. Additionally, this is Williams's eighth PCR motion and, as of this opinion, his fourth case resolved as contemplated by Mississippi Code Annotated section 47-5-76(1) (Rev. 2015). We take judicial notice that past sanctions of $100 and $200, even with his averred indigent status, have done little to deter Williams's abuse of judicial time and resources. As a result, we sanction Williams in the amount of $1,000 and prohibit him from filing further PCR motions in forma pauperis pursuant to the mandates of section 47-5-76(1).

FACTS

¶ 2. The facts and procedural history preceding this PCR motion were succinctly set forth by the Mississippi Supreme Court in Williams v. State , 794 So.2d 181 (Miss. 2001) (overruled on other grounds, by Brown v. State , 995 So.2d 698, 703 (¶ 20) (Miss. 2008) ) and by this Court in Williams v. State , 98 So.3d 484 (Miss. Ct. App. 2012). In summary, after indictment and a jury trial in 1999 and a later resentencing upon remand, Williams remains in the custody of the Mississippi Department of Corrections serving a sixty-year sentence for the sale or transfer of a controlled substance with enhanced sentencing as a habitual offender. In 2012, Williams's second PCR was found to be frivolous and resolved as contemplated by section 47-5-76(1). Williams , 98 So.3d at 489 (¶ 18). Since then, the Mississippi Supreme Court has entered two separate orders sanctioning Williams for frivolous filings. Williams v. State , 2013-M-00563. This appeal stems from his eighth PCR motion. Williams recasts another version of his prior claims that he has been unconstitutionally convicted and sentenced as a habitual offender. He claims that Armstead v. State , 196 So.3d 913 (Miss. 2016), is an intervening decision that affects his outcome and overrules a holding in his case. He also claims his presence at resentencing was required and requests eligibility for parole.

STANDARD OF REVIEW

¶ 3. A trial court's denial of a PCR motion will not be reversed unless it is found to be clearly erroneous. Hughes v. State , 106 So.3d 836, 838 (¶ 4) (Miss. Ct. App. 2012). The trial court's legal conclusions, however, are reviewed under a de novo standard of review. Id.

DISCUSSION

I. Failure to Seek Leave to Proceed

¶ 4. Initially we note the record contains no order from the Supreme Court granting Williams leave to file his current PCR motion with the circuit court. Mississippi case law establishes that fact alone deprived the circuit court of jurisdiction to reach the merits of Williams's PCR Motion. See Williams v. State , 98 So.3d at 487 (¶ 8). The circuit court, therefore, should have dismissed Williams's PCR motion for lack of jurisdiction.

II. Successive-Writ Bar

¶ 5. On direct appeal and in multiple PCR motions, Williams has repeatedly asserted that his sentencing as a habitual offender raises fundamental-rights concerns. Each time, his claims have been dismissed or denied. See Williams , 98 So.3d at 487-88 (¶¶ 11-15). In his most recent PCR motion, he attempts to trigger an exception to the successive-writ bar by claiming his sentencing upon remand under Mississippi Code Annotated section 99-19-81 (Rev. 2015) and Mississippi Code Annotated section 41-29-147 (Rev. 2013): (1) allowed "stacking" of penalty enhancements that constituted double jeopardy; and (2) combined penalty-enhancing statutes which violated the ban on cruel and unusual punishment. But "the mere assertion of a constitutional right violation" does not trigger an exception to this procedural bar. Wicker v. State , 16 So.3d 706, 708 (¶ 5) (Miss. Ct. App. 2009). "There must at least appear to be some basis for the truth of the claim before the [procedural bar] will be waived." Id.

¶ 6. Williams "bears the burden of proving by a preponderance of the evidence that his claims are not barred as successive writs." Salter v. State , 184 So.3d 944, 948 (¶ 14) (Miss. Ct. App. 2015) (quoting Williams v. State , 110 So.3d 840, 843 (¶ 13) (Miss. Ct. App. 2013) ). Here, Williams simply rewords arguments made in his prior PCR motions, adds language asserting constitutional-rights violations, and argues that he has been subjected to an illegal sentence. The burden is upon Williams to prove that even if he satisfies an exception to the successive-writ bar, "the circuit court has not previously entered a decision on the merits of those claims." Clay v. State , 168 So.3d 987, 990 (¶ 9) (Miss. Ct. App. 2013) (citing Williams , 110 So. 3d at 847 (¶ 10) ). The record and Williams's briefs are devoid of any such proof. Finding Williams's claims to be simply duplicative of prior motions, we find they are successive-writ barred.

III. Time-Bar

¶ 7. Williams filed his current PCR motion more than three years after the time the supreme court ruled on his direct appeal. Thus, his motion is time-barred. Miss. Code Ann. § 99-39-5(2) (Rev. 2015). Attempting to except this most recent PCR motion from the time-bar, Williams claims that Armstead is an intervening decision that would change the outcome of his underlying criminal case. "An intervening decision is one that 'creates new intervening rules, rights, or claims that did not exist at the time of the prisoner's conviction.' " Dever v. State , 210 So.3d 977, 980 (¶ 6) (Miss. Ct. App. 2017) (quoting Patterson v. State , 594 So.2d 606, 608 (Miss. 1992) ).

¶ 8. However, Armstead does nothing to affect Williams's conviction or sentence. Instead, it supports the admissibility and relevance of the testimony and evidence elicited at his trial. Williams seems to interpret Armstead to mean that because one officer involved in the chain of custody of the crack cocaine he sold did not testify at trial, he was denied the right to cross-examination that witness and his rights under the Confrontation Clause of the United States and Mississippi Constitution were violated. However, in Armstead , as in Williams's case, the forensic scientist or analyst who conducted the tests on the drug sold testified at trial and was available for cross-examination. Armstead , 196 So.3d at 918 (¶ 15). Armstead is simply not an intervening decision, and it would not change the outcome of Williams's conviction or sentence. Thus, Williams fails to assert a claim that qualifies as an exception to the three-year time-bar.

IV. Constitutional-Rights Violation

¶ 9. Williams claims that his absence from his resentencing hearing violates his fundamental right to be free from an illegal sentence. Yet, he has failed to demonstrate any logical relation between the acts or omissions of the court and encroachment upon any of his fundamental constitutional rights. Further, he fails to set forth any applicable supporting legal authority. It is well established that we are "not required to address any issue that is not supported by reasons and authority," and we decline to do so here. Varvaris v. Perreault , 813 So.2d 750, 753 (¶ 6) (Miss. Ct. App. 2001) (citing Hoops v. State , 681 So.2d 521, 535 (Miss. 1996) ).

V. Parole Eligibility

¶ 10. Williams notes that in September 30, 2016, he petitioned for the circuit judge's parole recommendation but that the circuit judge has not responded. That petition is entirely separate from the unsuccessful PCR motion that led to this appeal. Therefore, the issue of the grant or denial of his parole request is not properly before this Court. So, while we are under no obligation to address this issue, we note that in his continuing attempt to circumvent the time and procedural bars applicable to his PCR motion, Williams invokes the equal-protection clause of the constitution, arguing that the trial court's inaction on his request for parole implicated a fundamental constitutional right. Even if the circuit judge denied his parole request, that would not have been an appealable judgment. See Morgan v. State , 193 So.3d 703, 705 (¶ 4) (Miss. Ct. App. 2016). Additionally, Mississippi statutes regarding parole contain no mandatory language creating a presumption of entitlement. Thus, Williams has no absolute entitlement and no protected constitutional right to parole or the parole hearing he seeks. Edmond v. Hancock , 830 So.2d 658, 660 (¶ 5) (Miss. Ct. App. 2002).

VI. Sanctions

¶ 11. Williams's current motion was filed without permission from the supreme court. It is one of many filings made by Williams in the courts of this state and is procedurally barred as successive-writ and time-barred. Williams filed the motion despite numerous warnings and sanctions from the supreme court. As detailed before, Williams's 2012 PCR motion was found to be frivolous; he has since been twice sanctioned for frivolous filings; and his present filing is his eighth PCR motion, which we find to be frivolous. Section 47-5-76(1) prohibits repeated filings of objectively frivolous PCR motions.

¶ 12. This Court and the trial courts are vested with authority to and have imposed monetary sanctions on pro se litigants for frivolous filings. Reed v. State , 70 So.3d 1174, 1175-76 (¶ 3) (Miss. Ct. App. 2011) ; Walker v. State , 35 So.3d 555, 560 (¶ 21) (Miss. Ct. App. 2010) ; Ivy v. State , 688 So.2d 223, 224 (1997). Finding this repetitive frivolous filing to be a waste of court personnel, materials, and time, we order sanctions against Williams in the amount of $1,000, to be paid along with any past sanctions prior to any future filings, and we prohibit Williams from filing further petitions in forma pauperis pursuant to the mandates of section 47-5-76(1).

CONCLUSION

¶ 13. We therefore affirm the trial court's judgment and sanction Williams, as discussed above.

¶ 14. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


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

text:
    Antonio WEATHERSBY a/k/a Antonio R. Weathersby a/k/a Antonio Ray Weathersby, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00422-COA
    Court of Appeals of Mississippi.
    April 10, 2018 Rehearing Denied August 14, 2018
    ATTORNEY FOR APPELLANT: ANTONIO WEATHERSBY (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE
    BEFORE LEE, C.J., BARNES AND TINDELL, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. In this appeal, we must determine whether the trial court properly denied Antonio Weathersby's motion for postconviction relief (PCR). Finding no error, we affirm.

PROCEDURAL HISTORY

¶ 2. In October 2015, Weathersby pleaded guilty to one count of possession of a firearm by a convicted felon. Weathersby was sentenced to seven years with three years to serve in the custody of the Mississippi Department of Corrections and four years of postrelease supervision.

¶ 3. In addition to the conviction for possession of a firearm by a convicted felon, Weathersby was convicted of two misdemeanor crimes-driving with a suspended license and first-offense DUI-in the local justice court. All three convictions stemmed from a traffic stop conducted by local authorities in 2013.

¶ 4. Weathersby appealed his misdemeanor convictions to the Marion County Circuit Court. Weathersby also filed a motion to suppress, alleging the traffic stop was illegal. On the day of the bench trial, the trial court heard arguments and testimony regarding the motion to suppress. Finding probable cause existed for the traffic stop, the trial court denied the motion and ultimately convicted Weathersby of the two misdemeanor crimes. Weathersby did not appeal these two convictions.

¶ 5. Weathersby filed a timely PCR motion relating to his possession-of-a-firearm-by-a-convicted-felon conviction. Finding no merit, the trial court denied Weathersby's PCR motion. Weathersby now appeals, asserting the following issues: (1) the traffic stop that led to his arrest was illegal; (2) the trial judge should not have recused himself after hearing testimony; and (3) he was entitled to a hearing on his motion to suppress.

STANDARD OF REVIEW

¶ 6. When reviewing a trial court's denial or dismissal of a PCR motion, we will only disturb the trial court's decision if it is clearly erroneous; however, we review the trial court's legal conclusions under a de novo standard of review. Hughes v. State , 106 So.3d 836, 838 (¶ 4) (Miss. Ct. App. 2012).

DISCUSSION

I. Traffic Stop

¶ 7. In this issue, Weathersby contends the traffic stop and resulting search of his car where law-enforcement officers discovered a firearm were illegal. However, upon the entry of a valid guilty plea, certain challenges, including illegal searches, are waived by the defendant. King v. State , 738 So.2d 240, 241 (¶¶ 4-5) (Miss. 1999) ; Thornhill v. State , 919 So.2d 238, 241 (¶ 16) (Miss. Ct. App. 2005). Here, this issue was waived when Weathersby pleaded guilty to possession of a firearm by a convicted felon. We note that Weathersby does not argue that his guilty plea was invalid. Furthermore, the trial court noted that Weathersby never raised the illegal-traffic-stop issue by way of a motion to suppress in regard to his felony conviction. We find no merit to this issue.

II. Recusal

¶ 8. After an initial hearing regarding Weathersby's motion to suppress, the trial judge recused himself and assigned Weathersby's case to another trial judge. Weathersby argues that this was error. However, Weathersby's argument is without merit for two reasons; most importantly, that this argument relates to the two misdemeanor convictions, not the felony conviction that is the subject of this appeal. Also, Weathersby's argument is simply a bare assertion with no additional information or supporting authority. Thus, we decline to review this claim.

III. Motion to Suppress

¶ 9. Weathersby argues he was entitled to a hearing on his motion to suppress. Again, Weathersby filed this motion in his misdemeanor case, not the felony case that is the subject of this appeal. Regardless, the record on appeal contains the transcript of the bench trial for Weathersby's misdemeanor appeal from the justice court. The trial court conducted a hearing on the motion to suppress prior to the bench trial and found probable cause existed for the traffic stop giving rise to the two misdemeanor charges. This issue is without merit.

¶ 10. AFFIRMED.

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

      This motion is not included in the appellate record.