author: RANDOLPH, CHIEF JUSTICE, FOR THE COURT:

text:
    Ceola JAMES v. Latrice WESTBROOKS
    NO. 2018-EC-00469-SCT
    Supreme Court of Mississippi.
    April 25, 2019 Rehearing Denied June 27, 2019
    ATTORNEY FOR APPELLANT: CEOLA JAMES (PRO SE)
    ATTORNEY FOR APPELLEE: WILLIE GRIFFIN, Greenville
    BEFORE RANDOLPH, C.J., COLEMAN AND BEAM, JJ.
   RANDOLPH, CHIEF JUSTICE, FOR THE COURT:

¶1. Former Court of Appeals Judge Ceola James lost the 2016 election for the Court of Appeals by nearly twenty-two thousand votes. James filed an election contest against the winner, Judge Latrice Westbrooks. James alleged Westbrooks improperly affiliated with the Democratic Party and improperly aligned herself with a political candidate, Representative Bennie Thompson of Mississippi's Second United States Congressional District. James argued that she received all of the "legal" votes due to Westbrooks's alleged violations of election law and pleaded that she is entitled to hold the judicial post won by Westbrooks.

¶2. Westbrooks filed a motion for summary judgment. At the hearing on Westbrooks's motion, the trial court found that James had failed to submit proof that Westbrooks had improperly aligned her campaign with a political candidate or political party and granted summary judgment in favor of Westbrooks. We affirm.

FACTS AND PROCEDURAL HISTORY

¶3. James and Judge Westbrooks were both candidates for the position of judge on the Mississippi Court of Appeals, District 2, Position 2, in the November 2016 general election. Westbrooks defeated James, receiving 92,359 votes (56.74 percent). James received 70,428 votes (43.26 percent). James filed a petition to contest the election in Warren County Circuit Court against Westbrooks and Representative Thompson, alleging that Westbrooks improperly aligned her campaign with Thompson's campaign, contrary to Mississippi Code Sections 23-15-973 and 23-15-976. Specifically, James alleged that Westbrooks

1. Purposely placed a picture of herself and Thompson on her campaign card;
2. Attended a 2016 Democratic party meeting, at which Thompson introduced her as his friend running for the Court of Appeals;
3. Appeared with Thompson at the 2016 Domestic Violence Parade in Yazoo City, at which Thompson introduced her as a candidate for the Court of Appeals;
4. Placed her campaign signs with Thompson's campaign signs;
5. Consented to a fundraiser in her honor at which Thompson was listed on the invitation as the "special guest";
6. Consented to a "Sample Official Democratic Election Ballot" that was distributed with her permission; and
7. Posted, or allowed to be posted, photos of her and Thompson on social media during the general election.

James alleged that these activities violated Mississippi Code Sections 23-15-973 and 23-15-976 and caused voters to align Westbrooks's campaign with the Democratic Party and with Representative Thompson's campaign.

¶4. Section 23-15-973 provides the following:

It shall be the duty of the judges of the circuit court to give a reasonable time and opportunity to the candidates for the office of judge of the Supreme Court, judges of the Court of Appeals, circuit judge and chancellor to address the people during court terms. In order to give further and every possible emphasis to the fact that the said judicial offices are not political but are to be held without favor and with absolute impartiality as to all persons, and because of the jurisdiction conferred upon the courts by this chapter, the judges thereof should be as far removed as possible from any political affiliations or obligations. It shall be unlawful for any candidate for any of the offices mentioned in this section to align himself with any candidate or candidates for any other office or with any political faction or any political party at any time during any primary or general election campaign. Likewise it shall be unlawful for any candidate for any other office nominated or to be nominated at any primary election, wherein any candidate for any of the judicial offices in this section mentioned, is or are to be nominated, to align himself with any one or more of the candidates for said offices or to take any part whatever in any nomination for any one or more of said judicial offices, except to cast his individual vote. Any candidate for any office, whether nominated with or without opposition, at any primary wherein a candidate for any one of the judicial offices herein mentioned is to be nominated who shall deliberately, knowingly and willfully violate the provisions of this section shall forfeit his nomination, or if elected at the following general election by virtue of said nomination, his election shall be void.

Miss. Code Ann. § 23-15-973 (Rev. 2018). Similarly, Mississippi Code Section 23-15-976 provides that "[a] judicial office is a nonpartisan office and a candidate for election thereto is prohibited from campaigning or qualifying for such an office based on party affiliation...." Miss. Code Ann. 23-15-976 (Rev. 2018).

¶5. James requested that the trial court void the 2016 election and declare James to be the winner under Mississippi Code Section 23-15-973. Alternatively, James requested that the trial court order a new election and disqualify Westbrooks from running, due to her improper alignment with Thompson. James also requested attorneys' fees and damages from Thompson.

¶6. Multiple sample ballots were attached as exhibits to James's petition. The first two sample ballots were identical, save for the named county (one from Sunflower County and the other from Warren County). Both ballots were entitled "SAMPLE OFFICIAL DEMOCRATIC ELECTION BALLOT" for the general election on Tuesday, November 8, 2016. Four candidates were named alongside their photos, with the bubble next to their name darkened. The first candidate listed was Hillary Clinton for United States president. Above her name was the word "DEMOCRAT." The second candidate listed was Thompson for the United States House of Representatives. Above Thompson's name was the word "DEMOCRAT." The third candidate was Jim Kitchens for Supreme Court. Above Justice Kitchens's name read, "NONPARTISAN JUDICIAL ELECTION." The fourth candidate listed was Westbrooks for Court of Appeals, which also read, "NONPARTISAN JUDICIAL ELECTION." Both sample ballots were "Paid For By Friends of Bennie Thompson." James also attached sample ballots from the 2008, 2010, and 2012 general elections that were "Paid For By Friends of Bennie Thompson" and one "Official General Election Ballot" from Warren County.

¶7. Westbrooks filed an answer and affirmative defenses to James's second amended petition. Westbrooks then filed a motion to dismiss, or in the alternative, a motion for summary judgment. Westbrooks argued that James failed to state a claim under Mississippi Code Section 23-15-951, because James had failed to allege that she received a majority of the "legal" votes cast at the election.

¶8. Mississippi Code Section 23-15-951 provides,

Except as otherwise provided by Section 23-15-955 or 23-15-961, a person desiring to contest the election of another person returned as elected to any office within any county, may, within twenty (20) days after the election, file a petition in the office of the clerk of the circuit court of the county, setting forth the grounds upon which the election is contested.
....
The court shall, at the first term, cause an issue to be made up and tried by a jury, and the verdict of the jury shall find the person having the greatest number of legal votes at the election....

Miss. Code Ann. § 23-15-951 (Rev. 2018).

¶9. James made one claim and one request for relief under this statute: (1) that the Warren County Circuit Court had jurisdiction to hear her petition; and (2) that the circuit clerk of Warren County was to serve a copy of the petition on the respondents. The record on appeal reflects that James did not request a jury trial under this statute or any other statute. Rather, James requested relief solely under Mississippi Code Section 23-15-973, i.e. , that the election of Westbrooks be declared void.

¶10. Next, Westbrooks argued that James failed to state a claim under Section 23-15-976, for James failed to present any evidence or to allege any facts that Westbrooks campaigned or qualified for judicial office based on political party affiliation.

Westbrooks also argued that James failed to state a claim upon which relief could be granted under Section 23-15-973. Specifically, Westbrooks argued that the use of a sample ballot is authorized by the commentary to Canon 5A(1) of the Code of Judicial Conduct, which states that "a candidate does not publicly endorse another candidate for public office by having that candidate's name on the same ticket." Further, Westbrooks argued that any violation of the statute by a non-judicial candidate was beyond the scope of Section 23-15-973. Although Westbrooks argued that Sections 23-15-973 and 23-15-976 are unconstitutional, she did not provide notice to the attorney general as required under Mississippi Rule of Civil Procedure 24(d).

¶11. James responded to Westbrooks's motion to dismiss, or in the alternative, summary judgment. In addition to the sample ballots attached to her second amended petition, James attached three affidavits. The first was her own affidavit, which stated the following: "I, Ceola James, do hereby state that the attached ballot is a true and correct copy of the ballot that was used to work the polls in Drew, MS on election day of November 8, 2016. It was personally handed to me." The sample ballot was the same ballot discussed above in Paragraph 6. The second affidavit was completed by Roosevelt Holly, which reads, "I found this flyer on my [t]ruck [d]ays before the [e]lection[.] [T]here were [sic] one on ever [sic] vehicle at Mt. Heroden Church [ ] Vicksburg, MS. I [r]ead it when I got home[.] As [a]n [a]vid voter I knew it was not [r]ight, so I saved it." The same sample ballot was attached. The third affidavit, completed by Margaret G. Segrest, also attached the same sample ballot and read as follows: "The [b]allot [a]ttached to this [a]ffidavit was given to me at the Church of Greater Grove M.B. Church on Sunday before the election in 2016. This is a true copy of [the] [b]allot that was given to me."

¶12. Additionally, James attached an invitation to a reception for Westbrooks, "Candidate for Mississippi Court of Appeals," held on Thursday, October 27, 2016, with Thompson identified as a "special guest." The event was hosted by three attorneys and stated that the minimum contribution for the event was $ 250, with checks payable to the Latrice Westbrooks Campaign.

¶13. James then filed a second response to Westbrooks's motion, attaching five exhibits: (1) Westbrooks's memorandum in support of her motion to dismiss, or in the alternative, summary judgment; (2) an opinion issued by the Special Committee on Judicial Campaign Intervention ("Committee"); (3) a public statement issued by the Committee; (4) Westbrooks's responses to James's Request for Admissions; and (5) Westbrooks's answers to James's first set of interrogatories.

¶14. The Committee opinion addressed a leaflet that had been distributed in a circuit judge election, which stated that the Tea Party of Mississippi endorsed a circuit judge candidate. The Committee opined that the candidate had approved the leaflet. The Committee found that the candidate had aligned himself with a political faction or party in violation of Mississippi Code Section 23-15-973 and had campaigned for judicial office based on party affiliation in violation of Section 23-15-976. Likewise, the Committee's public statement explained that print material circulated by an organization called South Forward IE PAC supporting a candidate for Hinds County circuit judge had improperly aligned the candidate for circuit judge with a candidate for another political office. However, the statement did not describe the print material at issue.

¶15. A hearing was held on Westbrooks's motion for summary judgment. According to James, the hearing occurred on September 8, 2017; however, no transcript of a hearing is in the record furnished to this Court, nor is a hearing referenced on the trial court's docket. On March 21, 2018, Special Judge Stephen Simpson granted Westbrooks's motion for summary judgment and dismissed James's petition with prejudice. In his findings of fact and conclusions of law, Judge Simpson found, inter alia , that

James' response and memorandum brief constitute nothing more than denials. James offered no evidence that this Court may examine and conclude that a genuine issue of mat[erial] fact exists to warrant a trial. Further, although she is a former judge and practicing attorney, this Court gave James the benefit of the doubt normally reserved for pro se litigants. During the hearing, this Court specifically questioned James to determine whether facts exist to support her claims. Based on her responses to the Court's questions, the Court finds that there are no facts to support James' claims of improper alignment in violation of Miss. Code Ann. § 23-15-973 or party affiliation in violation of Miss. Code Ann. § 23-15-976.

¶16. James filed a notice of appeal. Westbrooks also filed a notice of cross-appeal, stating the trial court erred in (1) denying her motion to dismiss and for imposition of other sanctions; and (2) declining to consider that part of the motion for summary judgment challenging the constitutionality of Mississippi Code Sections 23-15-973 and 23-15-976. This Court granted Westbrooks's motion to file an out-of-time brief. Westbrooks's brief does not address her first issue. Therefore, we consider the issue abandoned. As to Westbrooks's second claim, the attorney general was not provided a copy of her brief as required by Mississippi Rule of Appellate Procedure 44. The issue is therefore procedurally barred. Miss. Dep't of Revenue v. AT & T Corp. , 202 So.3d 1207, 1209 n.1 (Miss. 2016) ("Failure to serve a copy of the appellate brief on the Attorney General of the State of Mississippi results in application of a procedural bar." (citing Virk v. Miss. Dep't of Revenue , 133 So.3d 809, 814-15 (Miss. 2014) ) ). Further, "[t]he constitutionality of a statute will not be determined unless absolutely necessary to determine the merits of the litigation in which the constitutional issue has been presented." In re Adoption of D.D.H. , No. 2016-CA-01530-SCT, 268 So.3d 449, 451-52, 2018 WL 372381, at *2 (Miss. Jan. 11, 2018) (quoting Roberts v. Miss. State Highway Comm'n , 309 So.2d 156, 160 (Miss. 1975) ). An examination of the constitutionality of the statutes is not "absolutely necessary" to resolve this appeal.

ISSUE

¶17. The sole issue before the Court is whether the trial court erred in granting Westbrooks's motion for summary judgment.

STANDARD OF REVIEW

¶18. "Summary judgment is an appropriate procedural device capable of being utilized in election disputes." Rush v. Ivy , 853 So.2d 1226, 1229 (Miss. 2003) (citing Lewis v. Griffith , 664 So.2d 177, 187-88 (Miss. 1995) ). "This Court applies a de novo standard of review on appeal from a grant of summary judgment by the trial court." Rush , 853 So.2d at 1229 (citing Jenkins v. Ohio Cas. Ins. Co. , 794 So.2d 228, 232 (Miss. 2001) ).

DISCUSSION

¶19. On appeal, James fails to cite a single election contest case in her briefs.

She cites Mississippi Code Sections 23-15-973 and 23-15-976. Neither statute has been examined by this Court. James also cites a judgment from the United States District Court for the Southern District of Mississippi, finding Section 23-15-976 to be unconstitutional, save for the first sentence of the statute. Miss. Republican Party State Exec. Comm. v. Musgrove , Civ. No. 3:02CV1578WS (S.D. Miss. Oct. 21, 2002). James argues that the evidence produced to the trial court created a genuine issue of material fact to defeat Westbrooks's motion for summary judgment.

¶20. James failed to submit proof to support her allegations that: (1) Westbrooks included a photo of her and Thompson on her campaign card; (2) Westbrooks attended a 2016 Democratic party meeting, at which Thompson introduced her as his friend running for the Court of Appeals; (3) Westbrooks appeared with Thompson at the 2016 Domestic Violence Parade in Yazoo City, at which Thompson introduced her as a candidate for the Court of Appeals; (4) Westbrooks placed her campaign signs with Thompson's campaign signs; and (5) Westbrooks posted, or allowed to be posted, photos of her and Thompson on social media during the general election.

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Massey v. Tingle , 867 So.2d 235, 238 (Miss. 2004) (quoting Miss. R. Civ. P. 56(e) ). Because James failed to submit proof to support the above allegations, the trial court did not err in granting summary judgment on those grounds. We discuss James's remaining claims individually.

I. Westbrooks consented to a "Sample Official Democratic Election Ballot" that was distributed with her permission

¶21. The bulk of James's challenge concerns the sample ballots that were distributed by "Friends of Bennie Thompson." James submitted three affidavits, swearing that the sample ballots had been personally received on or near election day. James argues that, although the commentary to Canon 5A(1) of the Mississippi Code of Judicial Conduct states that "[a] candidate does not publicly endorse another candidate for public office by having that candidate's name on the same ticket,"

it also states that Mississippi Code Section 23-15-973 "imposes restrictions on candidates and political organizations to assure the non-partisan quality of judicial elections for Supreme Court, Court of Appeals, Chancery Court, Circuit Court, and County Court justices and judges."

¶22. The "Sample Official Democratic Election" ballots that James produced to the trial court clearly and emphatically identify the document as a "Democratic" ballot, which included names and photos of select judicial candidates with the bubble next to their name darkened. However, James has not offered proof that Westbrooks was responsible for printing and circulating the material.

¶23. According to the proof submitted, the "Friends of Bennie Thompson" created and distributed these sample democratic ballots-not Westbrooks. Indeed, in Westbrooks's responses to James's first set of interrogatories, Westbrooks stated that she "ha[d] no personal knowledge or information of any illegal ballots being distributed within the counties of the second district for the Mississippi Court of Appeals." Westbrooks refuted James's claim that she requested or instructed the "Friends of Bennie Thompson" to place her name on the sample democratic ballots of which James complains. The only evidence before the trial court was the sample democratic ballots, which indicate that the group responsible for the ballots was "Friends of Bennie Thompson."

¶24. The facts James has presented are distinguishable from those in the opinion issued by the Special Committee on Judicial Campaign Intervention, in which the Committee found that a leaflet had been approved by a judicial candidate as printed. Here, James failed to produce any evidence that Westbrooks previewed and approved the "Sample Official Democratic Election Ballot." We therefore discern no violation by Westbrooks.

II. Westbrooks consented to a fundraiser in her honor, and Thompson was listed on the invitation as the "special guest"

¶25. The only evidence presented to the trial court in support of this allegation was a copy of the invitation itself. James did not present any evidence that Thompson's participation in the event "aligned" Westbrooks's campaign with Thompson's campaign. Align , Webster's II New College Dictionary ("[t]o ally (e.g., oneself) with one side of a dispute or cause ....") Further, James did not present any evidence that Thompson's appearance as a guest at this event improperly affiliated Westbrooks with any political party. No mention of any political party appears on the invitation.

¶26. When determining whether a new election is the appropriate remedy, as requested by James in this case, this Court has stated,

The key in deciding whether an act not in strict compliance with the statutory election procedures renders that election void is whether the act is such a total departure from the fundamental provisions of the statute as to destroy the integrity of the election and make the will of the qualified electors impossible to ascertain.

Harpole v. Kemper Cty. Democratic Exec. Comm. , 908 So.2d 129, 137 (Miss. 2005) (quoting Riley v. Clayton , 441 So.2d 1322, 1328 (Miss. 1983) ). See also Ulmer v. Currie , 245 Miss. 285, 147 So.2d 286 (1962) ; Sinclair v. Fortenberry , 213 Miss. 219, 56 So.2d 697 (1952) ; and Gregory v. Sanders , 195 Miss. 508, 15 So.2d 432 (1943). "When reviewing election contests, our courts regard the imposition of a new election as a last resort and seek to avoid exacting it as a remedy, if at all possible." Harpole , 908 So.2d at 137. "Our precedent is quite clear in this regard, and the key consideration in making this decision is whether there is such a radical departure from our election laws so as to require a special election or that alleged illegal votes are attended by fraud or willful violations of election law." Id.

¶27. James has failed to demonstrate a "radical departure" from election law such that the will of the electors is "impossible to ascertain." Id. Indeed, James lost the election to Westbrooks by nearly twenty-two thousand votes, and, as the trial court noted, James did not identify a single illegal ballot from the election.

CONCLUSION

¶28. Based on the lack of proof presented to the trial court, we find that the trial court correctly granted summary judgment in favor of Westbrooks.

¶29. ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: DISMISSED.

KITCHENS, P.J., COLEMAN, BEAM AND CHAMBERLIN, JJ., CONCUR. KING, P.J., MAXWELL, ISHEE AND GRIFFIS, JJ., NOT PARTICIPATING.

      Judge Latrice Westbrooks was sworn in and assumed her present position as Court of Appeals Judge for District 2, Position 2, on January 3, 2017.

      The trial court docket reflects that Representative Thompson filed a motion to dismiss with prejudice. He was dismissed voluntarily as a party to this action.

      James cited the Musgrove judgment in response to Westbrooks's argument that the statutes at issue are unconstitutional. Musgrove holds that Section 23-15-976 is unconstitutional to the extent that it prohibits political parties from endorsing judicial candidates. In this case, James does not allege that a political party improperly endorsed a judicial candidate. Thus, Musgrove is inapplicable.

      James submitted two photos of Westbrooks and Thompson to the trial court, and they are a part of the record. However, James did not submit the campaign card about which she complains.

      Even if James sufficiently had proved Westbrooks's attendance, the commentary to Canon 5C(1) of the Mississippi Code of Judicial Conduct provides that "[a]ttending or speaking at a political party gathering in the judge's own behalf while a candidate does not constitute alignments or affiliation with the party sponsoring the gathering." Miss. Code of Jud. Conduct, Canon 5C(1) cmt.

      James did not submit a social-media posting to the trial court.


source: Caselaw Access Project

author: CHAMBERLIN, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    Meloney HARBOUR, AS NEXT FRIEND OF T.D.H, a Minor v. TUPELO PUBLIC SCHOOL DISTRICT and Jim Hood, ex rel. State of Mississippi
    NO. 2018-CA-00219-SCT
    Supreme Court of Mississippi.
    June 13, 2019
    ATTORNEYS FOR APPELLANTS: JULIAN D. MILLER, Jackson, DEBRA M. GILES
    ATTORNEYS FOR APPELLEES: OTIS R. TIMS, MARTHA BOST STEGALL, OFFICE OF THE ATTORNEY GENERAL, Tupelo, BY: DOUGLAS T. MIRACLE, Jackson
    BEFORE KITCHENS, P.J., MAXWELL AND CHAMBERLIN, JJ.
   CHAMBERLIN, JUSTICE, FOR THE COURT:

¶1. Following a disciplinary proceeding, Meloney Harbour's minor son, T.D.H., was suspended from school and placed in an alternative school. The chancery court initially reversed and rendered the decision of the Tupelo Public School District Board of Trustees after finding that the deprivation of an attorney at the initial disciplinary hearing, as well as the failure to state the applicable standard of proof, violated T.D.H.'s due process rights. After a Mississippi Rule of Civil Procedure 59(a) motion, the chancery court amended its judgment to remand the case instead of rendering it.

¶2. Harbour then filed a Mississippi Rule of Civil Procedure 60(b) motion and-for the first time-challenged the constitutionality of Mississippi Code Section 37-9-71. Section 37-9-71 controls school disciplinary proceedings and, according to Harbour, contains an unconstitutional standard of proof-substantial evidence-rather than clear and convincing evidence. Miss. Code Ann. § 37-9-71 (Supp. 2018). Harbour did not notice the attorney general of the constitutional challenge to the statute. Finding that Harbour failed to meet her burden under Rule 60(b), the chancery court denied the motion. Harbour then appealed that ruling. We affirm the chancery court's denial of the Rule 60(b) motion.

FACTS AND PROCEDURAL HISTORY

¶3. On March 30, 2017, a schoolteacher filed a discipline referral stating that T.D.H., a minor enrolled at Tupelo Middle School in the Tupelo Public School District, was reported passing a substance alleged to be marijuana to a fellow student. Six days later, the school's disciplinary committee held a hearing to review the referral and to review the school's recommendation for disciplinary action. Harbour, T.D.H.'s mother, was present at the hearing on behalf of T.D.H. T.D.H.'s attorney was not allowed at the hearing under the school district's policy. The committee reviewed the students' statements and heard testimony from T.D.H., Talina Knight, an assistant principal, and Dr. Brock English, a principal. The committee reviewed the evidence, which it found "support[ed] the initial charge of possession and passing of marijuana." The committee then upheld the school's recommendation to place T.D.H. in an alternative school at the "Structured Day Program" for 180 days.

¶4. Harbour appealed the committee's decision to the Tupelo Public School District Superintendent, who upheld the committee's decision. Harbour then appealed the superintendent's decision to the Tupelo Public School District's Board of Trustees, which also upheld the committee's decision. Harbour and her attorney viewed the video of the incident on that same day.

¶5. On June 12, 2017, Harbour appealed the school board's decision to the Chancery Court of Lee County to determine "whether the ... District ... violated its handbook's code of conduct and policies and procedures as well as T.D.H.'s due process rights." Harbour also requested that the court declare that the school district provide remedial instruction to T.D.H., expunge T.D.H.'s suspension and recommendation from his record, require the school district to provide make-up testing to T.D.H. and provide injunctive relief allowing T.D.H. to return to his regular school setting.

¶6. The chancery court entered its first Memorandum Order on September 26, 2017. It held that the school district's failure to allow T.D.H. to have counsel present at the hearing and the school district's failure to state the standard of proof violated T.D.H.'s due process rights. Also, it found that T.D.H. was substantially prejudiced by these violations. The court reversed and rendered the decision, ordering T.D.H.'s immediate reinstatement to his original school and ordering the school district to "rewrite their due process policies to comply with Miss. Code Ann. § 37-9-71."

¶7. Next, the school district filed a Rule 59 Motion to Alter or Amend Judgment. The chancery court entered an order denying the Rule 59 motion in part and granting it in part. The court reaffirmed its decision that the school district violated T.D.H.'s due process rights by not allowing T.D.H. to have counsel present at the hearing and for failing to state a burden of proof. Doing so, it found "an error of law to be corrected, and ... remand[ed] the merits of this cause" to the school district with instructions to conduct a new committee hearing in compliance with Mississippi Code Section 37-9-71(Supp. 2018). The court additionally left in place the injunctive relief allowing T.D.H. to remain in school "on a temporary basis, as a preliminary injunction only, which is to say until the hearing and all available administrative procedures have been exhausted."

¶8. After the court entered its order on the Rule 59 motion, Harbour filed a Motion to Reconsider under Mississippi Rule of Civil Procedure 60(b). She sought to stay remand, to receive a temporary restraining order to stay a new disciplinary hearing and to receive a declaratory judgment as to the standard of proof under Section 37-9-71. In support of the Rule 60(b) motion, Harbour argued for the first time that the evidentiary standard for disciplinary proceedings in Mississippi Code Section 37-9-71 -substantial evidence-was "constitutionally insufficient to undergird such decisions in that the Mississippi Supreme Court has held education to be a 'fundamental right.' " Harbour argued that the constitutionally permissible standard of proof should be "clear and convincing evidence" instead. Moreover, Harbour argued that substantial evidence is in fact an appellate standard of review rather than an evidentiary standard of proof. Finally, Harbour argued that T.D.H. would suffer irreparable harm by "being subjected to an unnecessary hearing and ... being deprived of his fundamental right to an education by application of an unconstitutional standard of proof." At this stage in the litigation, Harbour did not notice the attorney general of the constitutional challenge.

¶9. On January 12, 2018, the chancery court denied the Rule 60(b) motion, finding that Harbour did not meet her burden under Rule 60(b) and further that Harbour had failed to establish grounds to stay remand and for the Court to issue a declaratory judgment regarding the constitutional adequacy of Section 37-9-71's mandate of substantial evidence as a standard of proof. Aggrieved, Harbour filed a notice of appeal, arguing that the chancery court erred in denying the Rule 60(b) motion. In the notice of appeal, Harbour notified the attorney general of the constitutional challenge to Section 37-9-71.

¶10. On appeal, Harbour briefs three issues. First, Harbour maintains that the chancery court erred in denying the Rule 60(b) motion. Second, Harbour alleges that the chancery court correctly determined that T.D.H.'s constitutional and statutory due process rights were violated. Third, Harbour argues that the chancery court erred in determining that substantial evidence existed against T.D.H. Harbour's constitutional challenge, though, is not properly before the Court, and this issue is dispositive of the appeal.

STANDARD OF REVIEW

¶11. "Our precedents make clear that the standard of review for an appeal of a Rule 60 motion is abuse of discretion." Tyler v. Auto. Fin. Co. , 113 So. 3d 1236, 1239 (Miss. 2013) (citing Accredited Sur. and Cas. Co., Inc. v. Bolles , 535 So. 2d 56, 58 (Miss. 1988) ). Moreover, "where questions of law are raised the applicable standard of review is de novo ." Brown v. State , 731 So. 2d 595, 598 (Miss. 1999) (citing Bank of Miss. v. S. Mem'l Park, Inc. , 677 So. 2d 186, 191 (Miss. 1996) ).

ANALYSIS

Final Judgment

¶12. At the outset, we address the attorney general's argument that the chancery court's denial of the Rule 60(b) order was not a final, appealable judgment. The attorney general relies on Tucker v. Williams , 198 So. 3d 299 (Miss. 2016), and concludes that the chancery court's remand of the action to the committee amounted to an interlocutory order.

¶13. The Tucker Court stated, "This argument turns on whether the denial of the motion for reconsideration was a final judgment from which an appeal could have been taken." Tucker , 198 So. 3d at 306. In Tucker , the Court concluded that the denial of the motion for reconsideration was not a final judgment because "[a] clerk's entry of default is an 'interlocutory step that is taken under Rule 55(a) in anticipation of a final judgment by default under Rule 55(b).' " Id. at 307 (quoting 10A Charles Alan Wright & Arthur R. Miller et al., Federal Practice and Procedure § 2692 (3d ed.), Westlaw (database updated Apr. 2019)).

¶14. Here, the case came before the chancery court on a "Notice of Appeal and Motion for Injunctive Relief," in which Harbour was appealing the decision of the committee. In its first order, the chancery court found that barring T.D.H.'s attorney's appearance at a hearing amounted to "substantial prejudice," and it reversed and rendered the decision of the committee, which would have placed T.D.H. back in his regular school permanently. The school district then filed a " Rule 59 Motion to Alter or Amend Judgment." The chancery court then issued an order partially denying and granting the Rule 59 motion; it reversed and remanded to the committee for a hearing that provides T.D.H. his due process rights. Further, the court left in place the injunctive relief, holding that T.D.H. was to remain in his regular school until "the hearing and all available administrative procedures have been exhausted." In response, Harbour filed a motion to reconsider. Applying Rule 60(b), the chancery court denied Harbour's motion.

¶15. In Tucker , the first order was interlocutory. Tucker , 198 So. 3d at 307. Therefore, the order following the Rule 60(b) motion was also interlocutory. Id. Here, the question is whether the chancery court's first order was interlocutory. In the original order, the chancery court ruled on the merits, determining that the finding of the committee was supported by substantial evidence, but it then reversed and rendered as a result of T.D.H.'s due process entitlement to an attorney at the hearing.

¶16. In a concurring opinion, then-Presiding Judge Southwick of the Court of Appeals concluded, "A decision by the first level appellate court that the agency was definitely wrong in one of its final decisions, even if the court remands for the agency to conduct further proceedings based on that reversal, is a final judgment that is appealable." J.R. Logging v. Halford , 765 So. 2d 580, 589 (Miss. Ct. App. 2000) (Southwick, P.J., concurring). The Court later reviewed then-Presiding Judge Southwick's concurring opinion, and stated, "We agree with this interpretation." Southwood Door Co. v. Burton , 847 So. 2d 833, 838 (Miss. 2003). In Burton , the Court determined that the circuit court's order reversing and remanding to the administrative agency was final in nature, because the reversal was procedural and because it was not based on an insufficient record to consider the merits. Id.

¶17. Here, the chancery court's order disposed of the merits, reversing and rendering (later remanding) the case on the due process issue. The instant case is analogous to Burton . The chancery court had enough information to make a finding on the merits. The remand was based on a procedural due process issue. Therefore, the order was final and was properly appealed by Harbour.

Rule 60(b)

¶18. Next, the attorney general contends that Harbour waived the constitutional challenge to Section 37-9-71 by not raising it until she filed the Rule 60(b) motion. We find that the chancery court did not err in denying the motion, because Harbour's challenge is not properly before us.

¶19. Rule 60(b) provides, "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ... accident or mistake ...." M.R.C.P. 60(b)(2). The Court has stated, "A party is not entitled to relief merely because he is unhappy with the judgment, but he must make some showing that he was justified in failing to avoid mistake or inadvertence; gross negligence, ignorance of the rules, or ignorance of the law is not enough." Moore v. Jacobs , 752 So. 2d 1013, 1015 (Miss. 1999) (quoting Stringfellow v. Stringfellow , 451 So. 2d 219, 221 (Miss. 1984) ).

¶20. Harbour asserts that her argument about whether the substantial evidence standard violates the constitution is properly before the Court. Specifically, Harbour argues that the chancery court's "failure to address the issue of a constitutionally permissible standard of proof was either accident, error, or-if not-then certainly a reason justifying relief from judgment."

¶21. Based on the arguments and briefing of the parties, when the chancery court issued its original order, it addressed the merits of the claim, finding that the decision of the committee was supported by substantial evidence. It then turned to the due process issue, determining that Section 37-9-71 applied retroactively and required that T.D.H. have the assistance of legal counsel at the committee hearing. The chancery court went on to find that the school board's actions "in disallowing [T.D.H.'s] attorney from being present at the hearing amount[ed] to substantial prejudice." It then reversed and rendered.

¶22. Harbour did not then file a Rule 60(b) motion arguing that the chancery court had accidently or mistakenly forgotten to make a ruling on whether the substantial evidence standard is constitutional under Section 37-9-71. In fact, the chancery court addressed the due process issue under Section 37-9-71, as Harbour had urged. After the school district filed its motion for reconsideration, the chancery court issued a second order, and the only substantive change to the order was that it reversed and remanded instead of reversing and rendering. Notably, the chancery court still found that a due process violation had occurred under Section 37-9-71. After the second order was entered, Harbour raised for the first time the question of the constitutionality of Section 37-9-71 in her Rule 60(b) motion. Further, at oral argument before the first order was entered, the chancery court asked Harbour's attorney whether the case should be remanded or rendered, and Harbour's attorney responded "I would prefer a reverse and render to allow [T.D.H.] back in school." He then added, "We alleged a violation of the statute of law and so that requires a rendering of the entire decision because they violated his statutory rights."

¶23. As stated above, " 'A party is not entitled to relief merely because he is unhappy with the judgment ....' " Moore , 752 So. 2d at 1015 (quoting Stringfellow , 451 So. 2d at 221 ). Further, the Court has stated that it "will not entertain on appeal a new theory of unconstitutionality which could have been raised, but was not advanced, before the trial court until a post-judgment motion." Wright v. White , 693 So. 2d 898, 903 (Miss. 1997), overruled on other grounds by E. Miss. State Hosp. v. Callens , 892 So. 2d 800 (Miss. 2004) ; see Powers v. Tiebauer , 939 So. 2d 749, 755 (Miss. 2005) (holding that litigant was procedurally barred from raising constitutional challenge for the first time on appeal).

¶24. In addition, Harbour did not notice the attorney general of the constitutional challenge in a timely manner. Rule 24(d) provides in pertinent part that "the party asserting the unconstitutionality of the statute shall notify the Attorney General of the State of Mississippi within such time as to afford him an opportunity to intervene and argue the question of constitutionality." M.R.C.P. 24(d). "This Court has procedurally barred challenges to the constitutionality of a statute where a party failed to notify the Attorney General." Martin v. Lowery , 912 So. 2d 461, 465 (Miss. 2005) (citing Cockrell v. Pearl River Valley Water Supply Dist. , 865 So. 2d 357, 360 (Miss. 2004) ). While Harbour noticed the attorney general in the notice of appeal, this was untimely and certainly not "within such time as to afford [the attorney general] an opportunity to intervene and argue the question of constitutionality." M.R.C.P. 24(d) ; see McNeil v. Hester , 753 So. 2d 1057, 1075 (Miss. 2000) ("This Court has held that the filing of a notice of appeal transfers jurisdiction of a matter from the lower court to this Court [ ] and that the lower court is thus without authority to amend, modify, or reconsider its judgment." (citing Wright , 693 So. 2d at 903 )).

¶25. The chancery court did not mistakenly or accidently omit an analysis of the constitutional issue. The issue, simply, was not properly before the chancery court for review, since Harbour raised it for the first time in the Rule 60(b) motion. Therefore, the chancery court did not err in denying the Rule 60(b) motion, and we will not address a constitutional challenge that is not properly before us.

Substantial Evidence

¶26. We decline to review the chancery court's determination that there was substantial evidence in the record against T.D.H., because the issue is not properly before us. While Harbour did provide that she was appealing "other grounds that may be presented to the Mississippi Supreme Court upon appeal," she limited the notice of appeal to a review of one order: the order denying the Rule 60(b) motion. Thus, Harbour did not appeal the merits of the case, and we decline to review them. See M.R.A.P. 3(c) ("The notice of appeal ... shall designate as a whole or in part the judgment or order appealed from.").

CONCLUSION

¶27. The chancery court's denial of the Rule 60(b) motion was a final, appealable judgment. Neither Harbour's constitutional challenge nor the review of the chancery court's determination on the merits of the appeal is properly before us. Because the chancery court did not err in denying the Rule 60(b) motion, we affirm and remand to the chancery court with instructions for that court to remand the case to the committee for a new hearing.

¶28. AFFIRMED.

KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL, BEAM, ISHEE AND GRIFFIS, JJ., CONCUR. RANDOLPH, C.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      We refer to the minor student as "T.D.H." to preserve his anonymity.

      The attorney general moved to dismiss Harbour's constitutional challenge on May 30, 2018. Since the chancery court did not err in denying the Rule 60(b) motion and because we find that the constitutional challenge is not properly before us, the attorney general's motion is dismissed as moot.

      The attorney general's motion to dismiss Harbour's constitutional challenge is dismissed as moot.


author: COLEMAN, JUSTICE, FOR THE COURT: KING, PRESIDING JUSTICE, DISSENTING:

text:
    Richard W. MORROW a/k/a Richard Morrow a/k/a Richard Warriner Morrow v. STATE of Mississippi
    NO. 2018-KA-00166-SCT
    Supreme Court of Mississippi.
    June 13, 2019
    ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: W. DANIEL HINCHCLIFF, GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KAYLYN HAVRILLA McCLINTON
    EN BANC.
   COLEMAN, JUSTICE, FOR THE COURT:

¶1. Richard Morrow was convicted of fondling and sentenced as a habitual offender to life in prison without parole. Morrow's trial counsel did not file a direct appeal. Nevertheless, the trial court allowed Morrow to proceed with an out of time appeal. Morrow raises four assignments of error: (1) whether the trial court erred in allowing testimony and comments about DNA evidence; (2) whether the victim's nonverbal responses were ambiguous and therefore insufficient to support the verdict; (3) whether he received ineffective assistance of counsel; and (4) whether cumulative error requires reversal. Discerning no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In July 2012, Morrow lived with his sister Carlie in Corinth, Mississippi. Carlie's daughter Laura and her grandson Ben had lived with Carlie before Morrow moved in. Laura and Ben moved out and lived with various friends and Laura's aunt, who lived a few houses down the street from Carlie. Laura kept some of her clothes at Carlie's home. Laura and Ben visited often.

¶3. On July 26, 2012, when Ben was three years old, Laura and Ben went to Carlie's house so that Laura could gather some clothes, and Morrow was there. Carlie was not present when they arrived, but Laura and Ben waited for her to return because she had agreed to babysit Ben while Laura went to work.

¶4. While Ben was in the living room watching television, Laura was in her old room watching television and gathering clothes. Ben was wearing only his underwear. Laura exited her old room to get something to drink. She passed through the living room, and she noticed that Ben was not there. She went into the kitchen. When Laura walked into the kitchen, she saw Ben standing on the table facing Morrow. Laura saw Morrow pulling up Ben's underwear quickly, and she heard Ben's underwear pop against his waist. Laura pretended as if nothing was wrong, and Morrow began yelling at Ben to get off the table.

¶5. Ben told Laura that he needed to use the bathroom, so she took him into the bathroom. In the bathroom, Laura asked Ben what he was doing on the table, and he responded that he did not want to tell her because he was scared. Laura reassured Ben that he was not in trouble, and he told her that "Uncle Ricky had sucked his peepee." Laura then examined Ben's penis and saw that it was wet with saliva. Ben did not urinate while they were in the bathroom, and Laura was sure that the moisture was not urine.

¶6. Laura gathered their personal items; she dressed Ben, and they left to go to Laura's aunt's house. Laura called Carlie crying. Laura told Carlie something bad had happened and asked her to come get them. Carlie was near the house and picked up Laura and Ben. Carlie asked Ben what had happened, but he told her that he was scared and did not want to tell her. Carlie reassured him, and Ben told her the same thing that he had told Laura. Laura and Carlie went to Laura's aunt's house and called law enforcement to report the incident. They went to the Alcorn County Sheriff's Department where Laura provided a statement. Ben was taken to the hospital, and medical personnel swabbed his penis.

¶7. Ben, who was seven years old at the time of the trial, testified after Laura. Ben testified that Morrow put his mouth on his "middle spot," which he explained was what he uses to go to the bathroom. Ben's account of the incident corroborated Laura's testimony.

¶8. Reggie Anderson, a former criminal investigator with the Alcorn County Sheriff's Department, testified that he took Laura's statement regarding an alleged fondling. Anderson sent Ben to the hospital for a sexual assault examination kit to be performed. Anderson sent the sexual assault kit to the Mississippi Crime Laboratory. Anderson obtained permission from Morrow to take a DNA swab from him. Anderson provided a DNA sample from Morrow to the crime lab, but the crime lab misplaced the sample. Anderson obtained permission again from Morrow to take another DNA sample from him. Anderson submitted the second sample to the crime lab.

¶9. Anderson testified about the DNA results he had received from the crime lab:

Q: What were the results?
A: It came back as a male contributor on the penile swab of [Ben].
Q: Was that a male contributor to the evidence found on the penis of [Ben]?
A: Correct.

¶10. On cross-examination, Anderson testified that the report he received did not identify Morrow as the male contributor. On redirect, the prosecution again questioned Anderson about the crime lab results:

Q: Did you state to the jury the results from the crime lab was a male contributor?
A: Yes, sir.
Q: Were there any other males accused in your investigation of the fondling of [Ben]?
A: No, sir.
Q: From the beginning of when this was reported to you on July 26 of 2012, was there one suspect?
A: Yes, sir.
Q: Was there one male accused?
A: Yes, sir.
Q: Under oath, tell the jury who that person is.
A: Richard Morrow.

¶11. Anderson also testified about the statement Morrow had given. Morrow stated that he and Ben were in the kitchen playing with his false teeth, with Morrow removing them and putting them back in his mouth to entertain Ben. Ben asked to see the false teeth, took them, and put the false teeth in his underwear.

¶12. Morrow testified in his defense. Morrow's testimony tracked his statement, and he denied fondling Ben. Morrow testified that on the morning of July 26, 2012, Ben was in his underwear. Morrow testified that he had just eaten and was cleaning his dentures when Ben became curious. Morrow testified that he then put his teeth in and pulled them out several times to entertain Ben. Morrow testified that Ben then grabbed them and put them down his underwear. Morrow grabbed Ben's arm and took the dentures back. Morrow testified that he was washing his dentures and his hands while Ben climbed on the table to show Morrow his stomach. Morrow testified that he removed Ben from the table so he would not fall and continued drying his hands with a dish towel. Morrow testified that Laura walked in while he was drying his hands. Morrow testified that he freely gave DNA samples because he knew he did not touch Ben.

¶13. The jury found Morrow guilty of fondling. The trial court sentenced Morrow as a habitual offender to life in prison without the possibility of parole. Morrow's attorneys did not file any post trial motions and did not appeal his conviction. Morrow requested that the circuit court allow him to file an out of time appeal. The trial court granted Morrow's request, allowed his trial counsel to withdraw, and appointed the Office of Indigent Appeals as appellate counsel for Morrow.

¶14. Morrow appeals, arguing that 1) the hearsay testimony about the DNA results was improperly admitted and violated his Sixth Amendment right to confront witnesses against him, 2) Ben's nonverbal responses were ambiguous and thus insufficient to support the verdict, 3) his trial counsel rendered ineffective assistance of counsel, and 4) the cumulative effect of the errors raised requires reversal.

STANDARD OF REVIEW

¶15. Morrow asks the Court to review the issues he raises on appeal for plain error because he did not raise the issues at trial. Under the plain error doctrine, the Court may recognize obvious error that was not raised at trial and that affects a fundamental, substantive right. Conners v. State , 92 So. 3d 676, 682 (¶ 15) (Miss. 2012). Moreover, the error must have "resulted in a manifest miscarriage of justice or 'seriously affect[ed] the fairness, integrity[,] or public reputation of judicial proceedings.' " Id. (quoting Brown v. State , 995 So. 2d 698, 703 (¶ 21) (Miss. 2008) ).

DISCUSSION

I. Whether the admission of testimony regarding the DNA results violated Morrow's constitutional rights to confront witnesses against him.

¶16. Morrow argues that the admission of testimony and comments on DNA results violated his constitutional rights to confront witnesses against him. We agree that allowing testimony relaying the results of the DNA test at issue violated Morrow's rights to confront the witnesses against him; however, the error falls short of plain error.

¶17. In Burdette v. State , a Panola County jury acquitted the defendant of murder but convicted him of manslaughter. Burdette v. State , 110 So. 3d 296, 297 (¶ 1) (Miss. 2013). Burdette shot the victim. Id. at 297-98 (¶ 2). The Burdette Court held that two separate Confrontation Clause violations had occurred at trial. First, a detective testified that he had verified that the weapon used to commit the crime, a Sig Sauer handgun, could fire .380 bullets by asking someone at Sig Sauer whether it could. Id. at 303 (¶ 22). The Burdette Court wrote, "The purported statements of unidentified persons at the company constituted hearsay, and-since it is unclear who contacted the company-perhaps double hearsay and its admission resulted in a violation of the Confrontation Clause." Id. at 303 (¶ 23). Second, and apropos of the testimony describing the DNA results in the case sub judice , in Burdette the same detective testified regarding results of ballistics testing conducted by the crime lab. Id. at 303 (¶ 22). No person from the crime lab testified. Id. The Burdette Court wrote,

Here, the surrogate testimony was presented by a police officer with no apparent relation to the Mississippi Crime Laboratory or to this particular report. The report undoubtedly was testimonial; we have held in a similar case that a "ballistics report provided 'testimony' against [the defendant] by showing that the shotgun shells found at the scene were consistent with having been fired from the shotgun found at the scene." Conners v. State , 92 So. 3d 676, 684 (Miss. 2012). The analysts were not found to be unavailable, and Burdette had no prior opportunity for cross-examination. The admission of the document without live testimony from an individual involved in the analysis constituted a violation of the Confrontation Clause.

Burdette , 110 So. 3d at 304 (¶ 24) (alteration in original). Like the above-described testimony from the detective in Burdette , Anderson's testimony regarding the DNA results in the case sub judice violated the Confrontation Clause. However, the record does not demonstrate that the error amounted to plain error. In Burdette , the Court held that the error did not result in a "manifest miscarriage of justice," because the evidence admitted in violation of the Confrontation Clause related to uncontested matters upon which the parties agreed. Burdette , 110 So. 3d at 304 (¶ 25) (quoting Conners v. State , 92 So. 3d 676, 684 (¶ 20) (Miss. 2012) ). In the case sub judice , Morrow testified that his victim placed Morrow's dentures in his underwear; Morrow's testimony jibed with the State's evidence that his DNA was found on the victim's penis.

¶18. Moreover, the record in the instant case is devoid of any attempt by Morrow to discredit or even question the results of the DNA test other than to clarify, on cross-examination of Anderson, that the report did not identify Morrow as the contributor of the genetic material but, rather, indicated only that the material came from a male. His trial counsel did not attempt to cross-examine Anderson or any other witness in an attempt to contest the accuracy of the reported results. No questions were attempted that could not be answered by the witnesses available. In other words, nothing in the record indicates to the Court that Morrow's case would have been affected one iota by the presence of someone from the crime lab who performed the DNA testing.

¶19. We are not free to guess what might have happened in the absence of facts found in the record. Rather, we may only act on the record before us. Oakwood Homes Corp. v. Randall , 824 So. 2d 1292, 1293 (¶ 4) (Miss. 2002) (citing Branch v. State , 347 So. 2d 957, 958-59 (Miss. 1977) ). "Facts asserted to exist must and ought to be definitely proved and placed before us by a record, certified by law; otherwise, we cannot know them." Randall , 824 So. 2d at 1294 (¶ 4) (quoting Mason v. State , 440 So. 2d 318, 319 (Miss. 1983) ). In the absence of indications from the record that Morrow's trial strategy was frustrated or harmed by the absence of the witness who prepared the report, no plain error occurred.

Walters v. State , 206 So. 3d 524, 530 (¶ 16) (Miss. 2016) (In order for plain error to be found, the error in question must be "plain, clear, or obvious" and "prejudice[ ] the outcome of the trial." (quoting McGee v. State , 953 So. 2d 211, 215 (¶ 8) (Miss. 2007) )). There can be no plain error, reversible violation of the Confrontation Clause when the record contains no effort by the defendant to confront the statement in question.

¶20. Like Burdette , the Confrontation Clause violation did not result in a manifest miscarriage of justice; therefore, no plain error exists.

II. Whether the victim's nonverbal responses were ambiguous and thus insufficient to support the verdict.

¶21. Morrow argues that the nonverbal responses of the victim were ambiguous and therefore insufficient to support the verdict. In support, Morrow relies on Jenkins v. State , in which the Mississippi Court of Appeals wrote that it was "concerned with the ambiguity of [the victim]'s non-verbal response-'(Moving head)'-to the question of whether [the defendant] had inserted his finger into her vagina." Jenkins v. State , 101 So. 3d 161, 168 (¶ 20) (Miss. 2012).

¶22. Unlike the transcript in Jenkins , the transcript here indicates whether Ben's nonverbal responses were affirmative or negative. Even so, "[a]s always, the jury has the prerogative to accept or reject, in whole or part, the testimony of any witness, expert or lay." Smith v. State , 925 So. 2d 825, 839 (¶ 33) (Miss. 2006) (holding that the jury may draw its own conclusions from the verbal statements and nonverbal reactions of the witness on the stand). Here, the jury had the prerogative to accept or reject, in whole or part, Ben's testimony. Furthermore, Ben's nonverbal responses certainly did not result in a manifest miscarriage of justice or seriously affect the fairness, integrity, or public reputation of judicial proceedings, because the jury was free to accept Laura's testimony, which mirrored Ben's testimony.

III. Whether Morrow received ineffective assistance of counsel.

¶23. Morrow argues that he received constitutionally ineffective assistance of counsel because his trial counsel failed to (1) make objections and (2) perfect and file Morrow's appeal.

¶24. "Ordinarily, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings." Archer v. State , 986 So. 2d 951, 955 (¶ 15) (Miss. 2008). The Court "may, however, address an ineffectiveness claim on direct appeal if the presented issues are based on facts fully apparent from the record." Dartez v. State , 177 So. 3d 420, 423 (Miss. 2015) (citing M.R.A.P. 22 ). "In order to prevail on a claim of ineffective assistance of counsel, a defendant must prove that his attorney's performance was deficient, and that the deficiency was so substantial as to deprive the defendant of a fair trial." Holly v. State , 716 So. 2d 979, 989 (¶ 37) (Miss. 1998) (citing Strickland v. Washington , 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). The Court considers "the totality of the circumstances to determine whether counsel's efforts were both deficient and prejudical." Dartez , 177 So. 3d at 423 (¶ 19) (citing Strickland , 466 U.S. at 687-96, 104 S.Ct. 2052 ). A strong but rebuttable presumption exists that counsel's conduct falls within the wide range of reasonable assistance. Dartez , 177 So. 3d at 423 (¶ 19). The Court will find that counsel's performance was deficient only when a reasonable probability exists that, but for the attorney's errors, the outcome would have been different. Id.

1. Failure to object

¶25. The Court has held that "[t]he failure of counsel to make certain objections may fall within the ambit of trial strategy, and therefore may not give rise to a claim for ineffective assistance of counsel." Conners , 92 So. 3d at 686 (¶ 25) (quoting Nix v. State , 8 So. 3d 141, 144 (¶ 13) (Miss. 2009) ).

¶26. As explained above, the Confrontation Clause violation did not result in plain error. We also find it conceivable that Morrow's trial counsel welcomed the DNA evidence as part of his trial strategy. Morrow's trial counsel argued during closing that Morrow had consented to a DNA test on two occasions-"[n]ot something [Morrow's trial counsel] would believe a guilty man would do."

¶27. Moreover, Morrow's trial counsel used the DNA test results as part of his argument that the results had merely shown a male contributor. Indeed, Morrow's trial counsel established on Anderson's cross-examination that while the DNA results were positive for a male contributor, the results did not show that Morrow was the contributor. Finally, Morrow fails to demonstrate prejudice resulting from the failure to object to the testimony about the DNA results. Laura's, Ben's, and Anderson's testimony supported the fondling conviction apart from the DNA results.

¶28. As previously discussed, Ben's nonverbal responses on the witness stand did not result in plain error. For similar reasons, we hold that Morrow's claim that he received ineffective assistance of counsel due to the failure to object to the nonverbal responses fails for lack of prejudice. Even assuming the failure to object or seek to have the trial court instruct the victim to verbally answer constituted deficient performance, Morrow fails to show that the outcome would have been any different had his trial counsel raised the issue at trial.

2. Failure to perfect and file an appeal

¶29. Morrow does not point to any resulting prejudice from his trial counsel's failure to perfect and file an appeal. Certainly, no prejudice exists, because Morrow was allowed to file an out of time appeal and to have new appellate counsel appointed.

¶30. We likewise reject Morrow's suggestion that he received ineffective assistance because his trial counsel did not file any post trial motions. Put simply, Morrow does not explain what post trial motion might have been successful had it been filed. While the Court has held that failure to file a post trial motion may constitute deficient performance, Morrow fails to demonstrate the prejudice resulting from the failure to file a post trial motion. See Pace v. State , 242 So. 3d 107, 118 (¶ 31) (Miss. 2018) (holding that the defendant had not shown any prejudice resulting from the failure to file post trial motions because no reasonable probability existed that the motions would have been granted).

IV. Whether cumulative error requires reversal.

¶31. Morrow argues that the cumulative effect of multiple errors requires reversal under the cumulative error doctrine. While harmless error alone is not reversible, when more than one harmless error occurs at the trial level, the errors might have the cumulative effect of depriving a defendant of a fair trial. Wilson v. State , 21 So. 3d 572, 591 (¶ 58) (Miss. 2009). Because no cumulative harmless errors require reversal, the cumulative error doctrine is inapplicable.

CONCLUSION

¶32. While Morrow's right of confrontation was violated, the error did not amount to plain error. Morrow's remaining arguments are without merit. Accordingly, we affirm the circuit court's judgment.

¶33. AFFIRMED.

RANDOLPH, C.J., MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR. KING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J.

KING, PRESIDING JUSTICE, DISSENTING:

¶34. Because the violation of Morrow's constitutional right to confront witnesses against him amounts to plain error, and because insufficient information is in the record before this Court to determine whether ineffective assistance of counsel occurred, I respectfully dissent.

1. Confrontation Clause

¶35. This Court has established that a Confrontation Clause violation is a violation of a fundamental, substantive right under plain error review. Conners v. State , 92 So. 3d 676, 682 (Miss. 2012). Both the United States Constitution and the Mississippi Constitution guarantee the right of a criminal defendant to confront and cross-examine witnesses against him. U.S. Const. amend. VI ; Miss. Const. art. 3, § 26. The United States Supreme Court determined that testimonial statements made by a witness who does not appear at trial are inadmissible under the Confrontation Clause, unless the witness is unavailable and the defendant had an opportunity to cross-examine that witness. Crawford v. Washington , 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Documents that are created solely for evidentiary purposes are "testimonial"; therefore, "[f]orensic laboratory reports created specifically to serve as evidence against the accused at trial are among the 'core class of testimonial statements' governed by the Confrontation Clause." Jenkins v. State , 102 So. 3d 1063, 1066 (Miss. 2012) (quoting Melendez-Diaz v. Massachusetts , 557 U.S. 305, 310, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009) ).

¶36. In this case, the forensic laboratory report was created specifically to serve as evidence against Morrow. Therefore, the analyst who performed the testing, or another forensic expert with sufficient involvement with the testing and/or report, must testify regarding the report to satisfy the Confrontation Clause. Armstead v. State , 196 So. 3d 913, 919-21 (Miss. 2016). While the report itself was not entered into evidence in this case, this Court has examined testimony about a report and testing results under the Confrontation Clause in much the same manner as if the report itself had been admitted. Id. at 920 ; Hingle v. State , 153 So. 3d 659 (Miss. 2014) ; see also England v. State , 195 So. 3d 830 (Miss. Ct. App. 2016).

¶37. The majority agrees that the State offering the DNA results via surrogate testimony of a former sheriff's department investigator with no apparent relation to the Mississippi Crime Laboratory or to the DNA report produced violated Morrow's right to confront witnesses against him. Crucial to the error is that this testimony was offered not on a tangential issue, but as evidence to prove the central issue in the fondling case: whether Morrow placed his mouth on Ben's penis.

¶38. Finding an obvious error that affects a fundamental, substantive right in the Confrontation Clause violation, this Court must determine whether such error resulted in a manifest miscarriage of justice, or seriously affected the fairness, integrity, or public reputation of judicial proceedings. In this case, the testimony about the DNA results went to the central element of the criminal charge. The DNA results were not cumulative of other evidence-the only other direct evidence regarding the issue consisted of the statements of the child victim. DNA evidence is often powerful evidence. And making the Confrontation Clause violation more unjust is the fact that Morrow's DNA was sent to the crime lab for comparison to the DNA from Ben's sexual assault kit and a match was not found. Morrow was deprived of the opportunity to cross-examine a DNA analyst as to why a match was not found and how that affects the probability that the DNA found on Ben was Morrow's. Instead, the State was able to emphasize the DNA results without any explication of those results or lack thereof. The majority, however, chastises Morrow for failing to cross-examine the former officer, who had no knowledge of the process of analyzing DNA or the meaning behind the DNA results, regarding the DNA results. Morrow's failure to emphasize the constitutional violation should not be held against him. Indeed, while holding that the admission of the evidence violated Morrow's right to confront the witnesses against him because a witness with proper knowledge was not present for Morrow to confront in the first place, the majority then paradoxically concludes that "[t]here can be no plain error, reversible violation of the Confrontation Clause when the record contains no effort to confront the statement in question." Maj. Op. ¶ 19. In other words, the majority finds a Confrontation Clause violation. A Confrontation Clause violation means that a statement was admitted into evidence that was constitutionally impossible for the defendant to confront. The majority now requires that the defendant confront the impossible-to-confront statement before deeming the Confrontation Clause violation reversible. Such a dangerous holding requiring a defendant to confront a statement that is impossible to confront could effectively eliminate the right to confront witnesses in Mississippi. Thus, the admission of powerful DNA evidence on the ultimate issue through a surrogate witness with no connection to the DNA analysis or report created a manifest injustice, especially given the holes in that evidence that Morrow was unable to explore. Accordingly, this Court should reverse Morrow's conviction and remand the case for a new trial.

2. Ineffective Assistance of Counsel

¶39. I agree with the majority that Morrow cannot show prejudice for the failure to perfect and file an appeal, given that Morrow's motions for an out of time appeal were granted, new counsel was appointed on appeal, and this Court is hearing his appeal. As to Morrow's claims that his counsel rendered ineffective assistance for the failure to object to the admission of the DNA test, this Court cannot determine on this record whether the outcome of the trial would have changed had trial counsel lodged the objections mentioned. Thus, insufficient information exists in the trial record for this Court to adequately address an ineffective assistance of counsel claim; therefore, this Court should deny relief while preserving Morrow's right to make this argument through a petition for post-conviction relief. See Hawkins v. State , 255 So. 3d 1264, 1270 (Miss. 2018). It is inappropriate for the majority to adjudicate this claim on direct appeal. Indeed, the majority admits that this issue requires facts not in the record: the majority claims that the record is absent of any indication of Morrow's trial strategy. Maj. Op. ¶ 19. Yet, the majority then employs conjecture to conclude that it is "conceivable that Morrow's trial counsel welcomed the DNA evidence as part of his trial strategy." Maj. Op. ¶ 26 (emphasis added). This issue should be preserved for a petition for post-conviction relief.

¶40. Thus, because the Confrontation Clause violation resulted in manifest injustice, and because a portion of Morrow's ineffective assistance of counsel claim requires that Morrow prove facts outside the record, I believe that the Court should reverse Morrow's conviction and remand the case for a new trial and should decline to address Morrow's ineffective assistance of counsel claim regarding the failure to object.

KITCHENS, P.J., JOINS THIS OPINION.

      The names of the minor victim and his family members have been changed to protect the identity of the minor victim.

      Ben called Morrow "Uncle Ricky."

      Ben referred to his penis as his "peepee."

      Morrow makes an offhanded remark within the present assignment of error concerning Ben's competency to testify. "[I]n the absence of meaningful argument and citation of authority th[e] Court will generally not consider the assignment of error." Goff v. State , 14 So. 3d 625, 666 (¶ 181) (Miss. 2009) (citing Randolph v. State , 852 So. 2d 547, 558 (¶ 30) (Miss. 2002) ). Notwithstanding Morrow's failure to advance a meaningful argument, we discern no plain error surrounding the trial court's finding that Ben was competent to testify.

      Morrow makes a suggestion in a footnote, without citing any authority, that his trial counsel had "missed [an] opportunit[y]" to make an opening statement. Morrow's claim is without merit because the "[t]he decision to make an opening statement is a 'strategic one.' " Burns v. State , 813 So. 2d 668, 677 (¶ 29) (Miss. 2001) (quoting Manning v. State , 735 So. 2d 323, 347 (¶ 56) (Miss. 1999) ).

      Morrow also includes a bare claim within the body of his argument that he received ineffective assistance of counsel because his trial counsel did not object to the State's questions about his prior fondling conviction. First, Morrow's trial counsel opposed the introduction of the conviction. Second, the decision to not object might very well have been for strategic reasons, i.e. , choosing not to draw further attention to the prior fondling conviction.

      The mother's testimony regarding the issue was limited to what Ben told her; she did not directly witness Morrow placing his mouth on Ben's penis.

      For example, in its closing argument, the State argued,
      Then there was a sexual assault kit done. The results were that it came from a male contributor. No, it didn't say Richard Morrow. It said it came from a male contributor. That is what we got. That is what they sent to us. It came from a male contributor. How many more people do we think sucked this child's penis that day? There's only one person that's been said that did that. There's only one person that that saliva could have come from. There's only one male.


author: GRIFFIS, JUSTICE, FOR THE COURT: BEAM, JUSTICE, SPECIALLY CONCURRING:

text:
    IN RE: In the Matter of the APPOINTMENT AND SETTING SALARY FOR COUNTY COURT ADMINISTRATOR AND DEPUTY COURT ADMINISTRATOR: Hinds County, Mississippi v. Hon. William Skinner and Larita Cooper Stokes
    NO. 2017-CA-01269-SCT
    Supreme Court of Mississippi.
    June 13, 2019
    ATTORNEYS FOR APPELLANT: PIETER JOHN TEEUWISSEN, ANTHONY RENARD SIMON
    ATTORNEY FOR APPELLEES: SORIE S. TARAWALLY, Jackson
    BEFORE RANDOLPH, C.J., ISHEE AND GRIFFIS, JJ.
   GRIFFIS, JUSTICE, FOR THE COURT:

¶1. Hinds County appeals from an administrative order signed by two Hinds County Court judges that appointed and set the salaries of the county court administrator and the deputy county court administrator. The county judges sought to set the salaries of their administrators at an amount greater than the budgeted amount set by the Hinds County Board of Supervisors. In this direct appeal, Hinds County asks that the order be vacated. We find that this appeal is not properly before the Court. Therefore, the appeal is dismissed, and the matter is remanded to the Circuit Court of the First Judicial District of Hinds County for consideration.

FACTS AND PROCEEDINGS BELOW

¶2. On August 21, 2017, County Judges William Skinner and Larita Cooper-Stokes entered an administrative order entitled "Order for Appointment and Setting Salary for County Court Administrator and Deputy Court Administrator." The order reappointed the county court administrator and the deputy county court administrator and set their annual salaries at $ 59,600 and $ 56,600, respectively. The order stated that it was "in conformity with the memorandum of the Mississippi Supreme Court, Administrative Office of Courts [ (AOC) ], dated January 1, 2017, relating to new AOC job descriptions and salary ranges effective January 1, 2017."

¶3. The AOC memorandum discussed the guidelines used by the AOC to hire chancery and circuit court support staff. The memorandum states that the "salary range" of court administrators is "not to exceed $ 59,600.00" and of deputy court administrators is "not to exceed $ 56,500.00." The board's minutes from the meeting of July 6, 2015, indicate that the board resolved "to approve adoption of the [AOC] Guidelines, Job Descriptions and Salary Schedules for Personnel working in County Court."

¶4. Hinds County responded to the order and filed a notice of appeal with the Hinds County Circuit Clerk. The designation of the record was filed, and the required costs were paid. The notice of appeal was filed in this Court.

STANDARD OF REVIEW

¶5. This Court applies a de novo standard of review to all questions of law. McClain v. Clark , 992 So. 2d 636, 637 (Miss. 2008).

DISCUSSION

¶6. Hinds County has raised the following issues:

I. Whether this Court can reach the merits of the appeal by accepting it as a petition for extraordinary writ.
II. Whether the county judges deprived the board of supervisors of their constitutional powers and discretion by entering an order setting the salaries of county employees in excess of what the board previously budgeted.
III. Whether the county judges violated the separation-of-powers doctrine by entering an order setting the salaries of county employees in excess of what the board previously budgeted.

¶7. The county judges argue that this appeal is not properly before this Court because Hinds County has not exhausted remedies available to it in the circuit court. In response, Hinds County contends that the lack of a record and the invalidity of the order supply reason enough for this Court to accept the appeal. As alternative relief, Hinds County asks this Court to consider the appeal as a petition for a writ of prohibition.

¶8. This Court invited the attorney general to file a brief to advise the Court of the position of the state of Mississippi. The attorney general advised that this Court has the discretion to issue a writ of prohibition in this matter and that doing so would be prudent in the interest of finality and certainty concerning a serious issue.

¶9. We find that this appeal is not properly before the Court. This action seeks to appeal an administrative order executed by the county judges. An appeal from the "law side" of the county court should be made to the circuit court; and appeals from the "equity side" of a county court should be made to the chancery court. Miss. Code. Ann. § 11-51-79 (Rev. 2012), invalidated on other grounds by Brown v. Collections, Inc. , 188 So. 3d 1171 (Miss. 2016). An appeal from county court is perfected when the appellant files a written notice of appeal with the circuit court clerk, along with payment of costs. UCRCCC 5.04.

¶10. Here, Hinds County perfected the appeal in the circuit court, but it chose to pursue the appeal in this Court. Nothing in the record suggests that the circuit court disclaimed jurisdiction over this matter or was asked to decide this case.

¶11. In 2015, Hinds County filed a petition that asked this Court to consider a similar action by Hinds County Judges Houston Patton and Melvin Priester. Notice of Appeal, In Re: Order for Appointment and Setting Salary for Cty. Court Adm'r and Deputy Court Adm'r, Hinds Cty., Miss. , No. 2015-TS-00056 (Miss. Jan. 12, 2015). A panel of this Court, consisting of then-Presiding Justice Randolph and then-Associate Justices Kitchens and King determined that the appeal was improperly filed and remanded the matter to the Circuit Court of the First Judicial District of Hinds County with directions that the circuit court "shall accept the appeal." Order, In Re: Order for Appointment and Setting Salary for Cty. Court Adm'r and Deputy Court Adm'r, Hinds Cty., Miss. , No. 2015-TS-00056 (Miss. Apr. 2, 2015). On remand, the record does not reflect whether Hinds County prosecuted that appeal in the circuit court. However, the docket of Hinds County Court administrative orders indicates that the county judges' order was later rescinded.

¶12. The issues in this appeal are identical to those raised in the 2015 appeal. The only difference is that, in the 2015 appeal, Hinds County filed its notice of appeal directly with this Court; here, Hinds County filed the notice of appeal with the circuit clerk.

¶13. Despite the request by Hinds County and the attorney general that this Court assume jurisdiction and issue an extraordinary writ against the county judges, this Court declines to do so. A writ may "prohibit[ ] a judge or court from taking some action the judge or court is about to do in a legal action." State v. Maples , 402 So. 2d 350, 351 (Miss. 1981). The writ of prohibition can prevent courts from exercising jurisdiction with which they were not vested or may be extended "to situations where, although an inferior court has jurisdiction, the superior court considers it necessary to issue the writ to prevent some irremedial injustice." State ex rel. Pittman v. Griffin , 450 So. 2d 426, 429 (Miss. 1984).

¶14. This Court has held that "the true function of a writ of prohibition ...

[is that] the writ may issue as an aid to the appellate process by superior courts to inferior courts to prevent action by an inferior court or judge which cannot be remedied on appeal." Maples , 402 So. 2d at 352 (alteration in original). "[A] writ of prohibition, or any other similar writ, is in the nature of the appellate process." Id. (quoting Cohens v. Virginia , 19 U.S. 264, 397, 6 Wheat. 264, 5 L. Ed. 257 (1821) ). In Maples , the Court found it necessary to prohibit a judge from presiding over certain criminal cases from which he had been asked to recuse in order to prevent the irremedial harm of an adverse ruling that the state of Mississippi would not be able to appeal and that would prevent orderly judicial resolution. Maples , 402 So. 2d at 353.

¶15. In Griffin , this Court prohibited a judge from holding an attorney general in contempt for ignoring a court order in order to prevent the irremedial harm of incorrectly interpreting a rule and preventing prosecution. Griffin , 450 So. 2d at 430. In Crittenden v. Town of Booneville , 92 Miss. 277, 45 So. 723, 727-28 (1908), this Court decided that restraining an illegal ordinance was a necessary action to prevent the irremedial harm of oppressive infringement of property rights, because an appeal would not be an adequate remedy.

¶16. Mississippi Rule of Appellate Procedure 21 governs the application and issuance of writs of mandamus and prohibition directed to judges and courts. Rule 21(a) provides that this Court "shall issue all writs and process necessary for the exercise and enforcement of its appellate jurisdiction ...." Miss. R. App. P. 21(a). The notice of appeal and other documents filed by Hinds County do not follow the technical requirements specified in Rule 21(c) as to the form of applying for a writ prohibition. Miss. R. App. P. 21(c). However, Rule 2(c) provides that this Court, "may suspend the requirements ... in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction" if doing so will expedite a decision "or for other good cause shown." Miss. R. App. P. 2(c). The decisions in Maples , Griffin , and Crittenden show that this Court has broad discretion to determine when and under what circumstances it will issue an extraordinary writ.

¶17. We do not have enough information to determine whether the case presents a convincing argument that an irremedial injustice will occur if the county court judges are not prohibited from setting the salaries of the court administrators. Accordingly, we decline to suspend the requirements of Rule 21. Hinds County has an avenue to pursue justice through an appeal to circuit court. It is correct that Hinds County has not exhausted the remedies available to it in the courts below.

¶18. Under Mississippi Code Section 11-51-79 (Rev. 2012), we find that this appeal was improperly filed in this Court. We dismiss this appeal and remand this case to the Circuit Court of the First Judicial District of Hinds County. All costs of this appeal are assessed to Hinds County, Mississippi.

¶19. DISMISSED AND REMANDED.

RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL, CHAMBERLIN AND ISHEE, JJ., CONCUR. BEAM, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION.

BEAM, JUSTICE, SPECIALLY CONCURRING:

¶20. While I agree with the majority opinion that this matter is not properly before the Court, the fact that this matter is not properly before us is frustrating for a number of reasons. First, this same issue was before the Court in 2015. After the Court remanded the case to the Hinds County Circuit Court, no further action was taken. Second, because this Court is not in a position to resolve the plethora of issues, such as the backlog of cases and administrative problems that plague the Hinds County Court and the Hinds County Circuit Court, this Court has to rely on Hinds County to fix the issues. Until the issues have been corrected, justice will be delayed further. While I wish this Court could swoop in and save the day, this Court must stay within its authority in order to maintain the integrity of the judicial process and to give both litigants and citizens the confidence and respect the Court and its decisions owe to them.

      Hinds County includes the political subdivision, the board of supervisors, and the county administrator.


author: GRIFFIS, P.J., FOR THE COURT:

text:
    TNHYIF REIV GOLF LLC, Appellant v. FORREST COUNTY, Mississippi, Appellee
    NO. 2017-CA-00574-COA
    Court of Appeals of Mississippi.
    November 6, 2018 Rehearing Denied March 26, 2019
    ATTORNEYS FOR APPELLANT: MICHAEL J. BENTLEY, SIMON T. BAILEY, Jackson
    ATTORNEY FOR APPELLEE: DAVID B. MILLER
    EN BANC.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. TNHYIF REIV GOLF LLC (True North) appeals the circuit court's entry of summary judgment in favor of Forrest County regarding the County's tax assessments of a student-housing complex for tax years 2014, 2015, and 2016. We reverse and render.

FACTS AND PROCEDURAL HISTORY

¶ 2. True North owns the Boardwalk at Dewberry Landing (Dewberry), a 150-unit student-housing complex located in Hattiesburg. The Dewberry operates as an offsite college dormitory for students attending the University of Southern Mississippi and Pearl River Community College.

¶ 3. In 2014, the County appraised the Dewberry at $13,230,640. It then assessed the Dewberry at 15% of this appraised value, yielding an assessed value of $1,984,597 that, when multiplied by the total millage of .17349, resulted in a total tax liability of $344,307.73.

¶ 4. In 2015, the County appraised the Dewberry at $13,757,980. It then assessed the Dewberry at 15% of this appraised value, yielding an assessed value of $2,063,698 that, when multiplied by the total millage of .17758, resulted in a total tax liability of $366,471.48.

¶ 5. In 2016, the County appraised the Dewberry at $13,784,110. It then assessed the Dewberry at 15% of this appraised value, yielding an assessed value of $2,067,617 that, when multiplied by the total millage of .18041, resulted in a total tax liability of $373,018.80.

¶ 6. True North objected to the County's tax assessments each year. However, the Board of Supervisors rejected each objection and gave its final approval to the Forrest County tax rolls for the applicable tax years. The tax rolls were submitted to and approved by the Mississippi Department of Revenue.

¶ 7. True North filed a timely appeal of the decisions of the Board of Supervisors to the Forrest County Circuit Court, which consolidated the appeals.

¶ 8. True North and the County filed cross-motions for summary judgment on the issue of the true value of the Dewberry. True North claimed that the true value of the Dewberry was $6,700,000, based on the property's actual data and income. The County claimed that "[t]he challenged assessments [we]re properly based on the subject property's income as modeled with reference to typical market properties." Both parties relied on the testimony and analysis of their respective expert appraisers: Tracy Wofford for True North and Bruce Templeton for the County.

¶ 9. After a hearing, the circuit court issued a memorandum opinion and found "that the law allow[ed] the County tax assessor to use market[-]typical properties for valuation." The circuit court concluded that "the County's assessments of the Dewberry for tax years 2014, 2015[,] and 2016 reflect the true value of the Dewberry." As a result, the circuit court entered a judgment that granted the County's motion for summary judgment and denied True North's motion for summary judgment. It is from this judgment that True North now appeals.

STANDARD OF REVIEW

¶ 10. "[W]e review the circuit court's decision to grant summary judgment de novo." Bennett v. Highland Park Apartments, LLC , 170 So.3d 450, 452 (¶ 4) (Miss. 2015). "[S]ummary judgment is proper only where there exists no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law." Id. "Because the movant must be entitled to a judgment as a matter of law, a summary-judgment motion is usually limited to questions of law, which this Court reviews de novo." Id.

ANALYSIS

¶ 11. "Taxation shall be uniform and equal throughout the State." Miss. Const. Art. 4, § 112. "Property shall be assessed for taxes under general laws, and by uniform rules, and in proportion to its true value ...." Id. Mississippi Code Annotated section 27-35-50(1) (Rev. 2005) defines "[t]rue value" as "market value, cash value, actual cash value, proper value and value for the purposes of appraisal for ad valorem taxation." In ascertaining true value, the county tax assessor shall consider the income capitalization approach, the cost approach, and the market data approach. Miss. Code Ann. § 27-35-50(2). "For differing types of categories of property, differing approaches may be appropriate." Id. "The choice of the particular valuation approach or approaches to be used should be made by the assessor upon a consideration of the category or nature of the property, the approaches to value for which the highest quality data is available, and the current use of the property." Id.

¶ 12. Here, the County offered a valuation of the Dewberry based on the modified cost approach, while True North offered a valuation based on the income capitalization approach. Interestingly, both parties agree that the cost approach was not the best approach to use. In fact, the County conceded that the income capitalization approach, used by True North, is appropriate for an income-producing property such as the Dewberry and is the method for which the most data is available. Yet, despite this concession, the circuit court adopted the County's valuation based on the modified cost approach.

¶ 13. When a taxpayer appeals a county's ad valorem assessment of its property, the circuit court must make a de novo determination of the property's true value. Miss. Code Ann. § 11-51-77 (Rev. 2012) (providing that when a taxpayer appeals the assessment of taxes, the "controversy shall be tried anew in the circuit court"). Here, the record reflects that the circuit court deferred to the County's valuation since the circuit court was "not convinced the County acted outside of the Constitutional mandate, or violated a statute, in using market typical property in its analysis." However, such deference to the County's appraisal is not permitted when an individual taxpayer takes a de novo appeal challenging the assessment of the property.

¶ 14. In such an appeal, "it [i]s not the duty of the [court] to expressly find either for the City or the taxpayer;" instead, the circuit court's role is "to determine the taxable value of the property" at issue in the appeal. Lavecchia v. Mayor & Aldermen of Vicksburg , 197 Miss. 860, 20 So.2d 831, 833 (1945). Thus, the issue is not whether the County's valuation techniques were permissible simply because they did not violate a particular constitutional or statutory provision. Instead, the issue is to determine the true value of the Dewberry. In other words, as noted by True North, "the stage is cleared[,] and both parties-the taxpayer and the county-must present evidence to support their proposed fair market value."

¶ 15. True North offered Wofford as its expert appraiser. Wofford relied primarily on the income capitalization approach, but also considered the sales comparison approach. Both approaches confirmed that $6.7 million was an appropriate true value for the Dewberry. Importantly, in reaching the true value, Wofford considered and used the Dewberry's individual characteristics and actual income.

¶ 16. The County offered Templeton as its expert appraiser. Templeton acknowledged that Wofford's "appraisal practice [wa]s fine," but disagreed with her use of actual income. While Templeton agreed there were differences in the various similarly-situated student-housing properties, including operating expenses, vacancy rates, and gross income, he opined that the Dewberry's actual income should not be used unless it is typical to the market. Because Templeton found that the Dewberry's actual data (i.e., expenses, vacancy rates, and income) was not market typical, he did not consider it in his valuation of the property. Instead, Templeton used modeled, market typical data to ascertain the property's true value.

¶ 17. Miss. Code Ann. § 27-35-50(3) calls for the valuation of individual properties, not for the valuation of a hypothetical property that represents the "typical" characteristics of all properties in the same class. Indeed, "[o]ur public assessors are directed to consider certain specific factors affecting value of subject property and are then told to consider 'any other circumstances that tend to affect its value.' " Rebelwood, Ltd. v. Hinds County , 544 So.2d 1356, 1363 (Miss. 1989) (quoting Miss. Code Ann. § 27-35-50(3) ), superseded on other grounds by statute as stated in Willow Bend Estates LLC and Woodyard Gardens LLC v. Humphreys Cty. Bd. of Supervisors , 166 So.3d 494, 498-99 (¶¶ 13-15) (Miss. 2013). After all, a willing buyer would not pay the same price for all properties in the same class, irrespective of their individual characteristics, nor would a willing seller accept the same price for every property without regard for its individual characteristics. In other words, not all properties in the same class face identical circumstances that would tend to affect value. Accordingly, the individual property characteristics, including actual income, must be included in any reasoned determination of fair market value. We find the circuit court erred in disregarding the Dewberry's individual characteristics.

CONCLUSION

¶ 18. We find the circuit court erroneously adopted the County's true value determination of the Dewberry based on an admittedly inappropriate approach. The record clearly indicated that True North demonstrated that the County's valuation was inadequate and overvalued the Dewberry by roughly double its actual worth.

¶ 19. Conversely, True North's true value determination was based on the income capitalization approach, which both parties agreed was the best approach for the property. Moreover, True North's valuation included the Dewberry's individual property characteristics and actual income, which we find should have been considered and used in ascertaining the true value of the property.

¶ 20. For these reasons, we find the circuit court erred in its true value determination of the Dewberry and reverse and render judgment in favor of True North, ascertaining the true value of the Dewberry to be $6,700,000.

¶ 21. REVERSED AND RENDERED.

LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. TINDELL, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. WILSON, J., NOT PARTICIPATING.

      The parties agree that "[t]heir dispute over the true value of the [Dewberry] is a question of law; there are no disputes of fact to be resolved by the Court."

      The market data approach is also referred to as the sales comparison approach.

      Specifically, section 27-35-50(3) states that in determining the true value of property, factors to be taken into consideration are:
      the proximity to navigation; to a highway; to a railroad; to a city, town, village or road; and any other circumstances that tend to affect its value, and not what it might bring at a forced sale but what the owner would be willing to accept and would expect to receive for it if he were disposed to sell it to another able and willing to buy.