author: COLEMAN, JUSTICE, FOR THE COURT:

text:
    CITY OF HORN LAKE, Mississippi, Joey Treadway, Tax Collector of DeSoto County; Parker Pickle, Tax Assessor of DeSoto County; W.E. Davis, DeSoto County Chancery Clerk ; and DeSoto County, Mississippi v. SASS MUNI-V, LLC
    NO. 2016-CA-00823-SCT NO. 2013-CA-01490-SCT
    Supreme Court of Mississippi.
    June 7, 2018
    ATTORNEYS FOR APPELLANTS: BILLY C. CAMPBELL, JR., ROBERT E. QUIMBY
    ATTORNEY FOR APPELLEE: LEWIE G. "SKIP" NEGROTTO, IV
    BEFORE KITCHENS, P.J., KING AND COLEMAN, JJ.
   COLEMAN, JUSTICE, FOR THE COURT:

¶ 1. The City of Horn Lake and DeSoto County filed the present appeal after the DeSoto County Chancery Court granted Sass Muni-V, LLC's (Sass Muni's) motion for summary judgment. The result of the chancery court's decision voided a 2008 tax sale at which Sass Muni purchased some property in DeSoto County and also refunded Sass Muni the purchase price of $530,508. Due to the clear and unambiguous language of Mississippi Code Section 27-43-3, the chancery clerk's failure to give proper notice of the tax sale renders the sale void. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. For the year 2007, the City and County levied taxes on a piece of property located in DeSoto County in the amount of $520,508. When the property owners did not pay the taxes, the property was offered for a tax sale by public auction on August 25, 2008. Sass Muni was the successful bidder for the property with a bid of $530,508. The two-year redemption period expired without the prior owners redeeming the property. However, a year after the redemption period expired, Sass Muni filed its complaint in the DeSoto County Chancery Court, asking for the tax sale to be declared void and for the purchase price to be refunded.

¶ 3. The City and the County filed motions to dismiss, and the chancery court granted the motions because Sass Muni lacked standing to challenge the tax sale and on the principle of caveat emptor . Sass Muni appealed the chancery court's judgment; we subsequently issued a unanimous opinion reversing the chancery court's judgment. SASS Muni-V, LLC v. DeSoto Cty. , 170 So.3d 441, 449 (¶ 24) (Miss. 2015). The Court wrote that "[t]his Court has never addressed whether a party who is not entitled to notice-SASS, in this case-may nevertheless challenge the validity of the tax sale based on lack of notice to another party." Id. at 446 (¶ 15). The Court went on to say that "SASS simply challenges the chancery clerk's actual compliance with the notice procedure required by law. The chancery clerk's failure to comply with the notice requirements renders the sale void , not simply voidable by the property owner, and the commencement of a cause of action is not even necessary to set aside the sale." Id. at 448 (¶ 18). The Court held that Sass Muni did have standing because "SASS's interest in the validity of its title to the property gives it standing to challenge the chancery clerk's compliance with the notice statutes." Id. at 449 (¶ 21). Finally, the Court held:

SASS, as the purchaser of the property in question at a tax sale, has standing to bring a suit to set aside the sale due to the chancery clerk's failure to comply with the tax-sale notice statutes. In addition, the doctrine of caveat emptor does not bar SASS's suit, as the tax-sale statutes specifically provide for the remedy SASS seeks.

Id. at 449 (¶ 24).

¶ 4. On remand, the parties filed dueling motions for summary judgment, and the chancery court heard oral arguments on the motions. In its written opinion, the chancery court quoted our opinion, in which we stated that "[t]he chancery clerk's failure to comply with those requirements renders the sale void , not simply voidable by the property owner, and the commencement of a cause of action is not even necessary to set aside the sale." SASS Muni-V, LLC v. DeSoto Cty. , 170 So.3d at 448 (¶ 18). The chancery court explained that Sass Muni was entitled to receive the same strict construction of the statutes related to tax-sale notice requirements that landowners and lienholders receive, which requires the sale to be void upon "[a]ny deviation" from the statutes. The chancery court held:

Therefore, because the attempted notice by mail is void for failure of the Clerk to properly notate the tax book, the record is void of any personal or publication service even if MIC-Rocky, LLC is the proper owners to when [sic] service was to be made, and/or the Clerk failed to provide notice of the end of the redemption period and the tax sale in question is void.

The chancery court entered a judgment granting Sass Muni's motion for summary judgment and ordered that the sale be voided.

¶ 5. The City and County timely filed their notices of appeal in June 2016. The chancery clerk filed an amended notice of completion of the record on June 20, 2016, and transmitted the record to the Court on June 30, 2016. Displeased with the lack of time given for it to review the record, Sass Muni filed a motion for time to review the appeal record and to stay the transmission of the record to the Court and for the Court to stay the briefing schedule. Neither the City nor the County opposed the motion. The Court granted the motion and ordered that the record be returned to DeSoto County Chancery Court with Sass Muni having until August 9, 2016, to examine the record and until August 22, 2016, to file any motions under Mississippi Rule of Appellate Procedure 11(f).

¶ 6. Sass Muni filed nothing until September 2016, when it filed a motion to correct the judgment, claiming clerical errors were made in the chancery court's judgment pursuant to Mississippi Rule of Appellate Procedure 10(e). Sass Muni's attorney was responsible for drafting the judgment initially and now claimed that, in drafting the judgment, he failed to include that the notice by mail was void for the clerk's failure to make a notation in the tax book. Importantly, the judgment did not include a statement that Sass Muni should be refunded the purchase price. The City and County both objected to the changes, citing the untimeliness of the motion and the chancery court's lack of jurisdiction.

¶ 7. The chancery court granted Sass Muni's motion to correct the judgment and supplement the record with the amended judgment and the transcript of the summary judgment hearing, which also was part of Sass Muni's motion. The appeal then proceeded in typical course.

¶ 8. In their joint brief, the City and the County raise two issues for review:

I. Whether Sass Muni-V, LLC's cause of action to set aside its own tax sale purchase on grounds that the Chancery Clerk failed to provide notice of the expiration of the two-year redemption period to the landowner is rendered moot when the landowner waives notice of the expiration of the two-year redemption period.
II. Whether the Chancery Court had jurisdiction to amend the Judgment.

STANDARD OF REVIEW

¶ 9. Mississippi Rule of Civil Procedure 56(c) states that the trial court shall grant summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Court reviews a trial court's decision to grant summary judgment using the de novo standard. Carter v. Miss. Dep't of Corrections , 860 So.2d 1187, 1190 (¶ 10) (Miss. 2003).

ANALYSIS

I. WAIVER

¶ 10. According to Mississippi Code Section 27-43-1, a chancery court clerk "shall, within one hundred eighty (180) days and not less than sixty (60) days prior to the expiration of the time of redemption with respect to land sold ... be required to issue notice to the record owner of the land sold ...." Miss. Code Ann. § 27-43-1 (Rev. 2017). Then, " Section 27-43-3 requires redemption notice to be given by personal service, by mail, and by publication in an appropriate newspaper." DeWeese Nelson Realty, Inc. v. Equity Servs. Co. , 502 So.2d 310, 312 (Miss. 1986). Section 27-43-3 also provides: "Should the clerk inadvertently fail to send notice as prescribed in this section, then such sale shall be void and the clerk shall not be liable to the purchaser or owner upon refund of all purchase money paid."

¶ 11. The City and County conceded that the chancery clerk's notice contained a defect. The crux of the City and County's appeal is that MIC-Rocky, LLC, waived any defects in the notice, so any issue with the chancery clerk's failure to satisfy the notice requirements is immaterial. According to the brief:

The entirety of Sass Muni's case turns on allegations that the Chancery Clerk failed to provide the statutorily-required notice of the expiration of the redemption period to the landowner/lienor. However, throughout the case, the landowner/lienor have repeatedly stated they are making "no claims of improper notice ..." and "do not contest notice." To avoid all doubt, the landowner/lienor filed a Notice of Waiver, indicated they "have waived any and all notices of expiration of the redemption period provide[d] by Miss. Code Ann. [section] 27-43-1 et seq. "

The City and County primarily rely upon the 1909 case of McClendon v. Whitten , 95 Miss. 124, 48 So. 964, 965 (1909). In McClendon , the property owner was listed as Mitchell & McClendon, a mercantile firm, and Mitchell received verbal notice that a tax sale of the property was going to occur, but he never received any notice as required by the statute. Id. Also, McClendon never received any notice of the tax sale at all. Id. The Court explained: "It is not pretended that the clerk attempted any sort of compliance with the requirements of this [notice] statute." Id. Further, the notice statute was "designed to bring positive and direct notice to a defaulting taxpayer, within a short time before the maturing of the tax title, that it is outstanding and will soon mature into a perfect title, so as to enable him to redeem. The statute is a most wholesome one, and should be strictly observed." Id. Important to the City and County's argument is the following statement: "Liability under this statute for actual damages can be escaped only by a compliance with the statute, by giving written notice as required, unless the defaulting taxpayer waives the notice ." Id. (emphasis added).

¶ 12. On the other hand, Sass Muni argues that waiver has no relevance in the present case because "though Mic-Rocky may have waived its right to notice, only Sass [Muni] can knowingly and voluntarily waive its right to challenge the chancery clerk's action regarding the 2008 tax sale." Sass Muni also argues that the Court's prior opinion is the law of the case and relies upon the Court's language in paragraph 18 to support the position that summary judgment was appropriate. In paragraph 18, the Court stated: "The chancery clerk's failure to comply with those requirements renders the sale void , not simply voidable by the property owner, and the commencement of a cause of action is not even necessary to set aside the sale." SASS Muni-V , 170 So.3d at 448 (¶ 18). However, we find no merit in the argument because the Court specifically stated that "[w]hether the tax sale was actually void under those same statutes is not an issue before this Court." Therefore, the law-of-the-case doctrine cannot apply because the Court did not address whether the tax sale was void, only whether Sass Muni had standing to challenge the sale.

¶ 13. While our prior opinion did not address whether the tax sale was void, the issue is now before us, and we hold that the tax sale was void ab initio due to the chancery clerk's failure to comply fully with the statutory notice requirements. Section 24-43-3 provides: "Should the clerk inadvertently fail to send notice as prescribed in this section, then sale shall be void and the clerk shall not be liable to the purchaser or owner upon refund of all purchase money paid." (Emphasis added.) Both we and the Mississippi Court of Appeals have interpreted Section 27-43-3 to mean that failure to comply strictly with the notice requirements renders the purchaser's tax deed void, with no legal effect, and not simply voidable. See Hart v. Catoe , 390 So.2d 1001, 1003 (Miss. 1980) ("Essential mandates of the statute were not followed and the failure so to do renders the tax deed to appellant void."); C.F.P. Props., Inc. v. Roleh, Inc. , 56 So.3d 575, 577 (Miss. Ct. App. 2010) ("It is undisputed that there is no affidavit regarding the act of diligent search and inquiry .... This omission renders the tax deed void."); Lawrence v. Rankin , 870 So.2d 673, 676 (Miss. Ct. App. 2004) ("The failure of the supporting affidavit renders the tax deed to Lawrence void."). As the Court of Appeals has put it, a tax sale that does not meet the requirements of Section 27-43-3 is void ab initio . Cleveland v. Deutche Bank Nat'l Trust Co. , 207 So.3d 710, 718 (Miss. Ct. App. 2016) ("We find no error in the chancellor's determination that the tax sale was void ab initio based on the failure to provide proper statutory notice to Lewis ....).

¶ 14. We do not find the City and County's waiver argument and reliance on McClendon to be persuasive. McClendon is inapplicable to the case sub judice , because the statute at issue in McClendon specifically provided that failure to provide notice to the property owner did not affect the validity of the tax sale. See Miss. Code § 4333 (1906). ("[N]or shall a failure to give the notice required by this act affect or render the title void."). Here, on the other hand, Section 27-43-3 unambiguously states that failure to provide the requisite notice to the property owner renders the sale void. Further, Section 27-43-3 gives the property owner a right to notice of the expiration of the redemption period prior to the tax sale. Without the notice, a valid sale cannot occur. To modify the existing rights, the property owner must relinquish the right to notice before the property is sold. Otherwise, the plain language of Section 27-43-3 controls, and the chancery clerk's failure to provide the requisite notice renders the tax sale void. In the instant case, the record indicates that the property owner attempted to waive the requirements of Section 27-43-3 only after Sass Muni brought suit to void the tax sale and obtain a refund. The property owner's belated attempt to disclaim its interest in the property cannot cure the fact that Sass Muni's tax deed has been void since the time of the tax sale.

II. AMENDED JUDGMENT

¶ 15. In the City and County's second issue, the argument is that the chancery court lacked the jurisdiction to amend the judgment, drafted originally by Sass Muni's own attorney, which left out several points that were included in the chancery court's written opinion, importantly that Sass Muni be refunded the purchase price. According to the City and County, the chancery court entered its judgment on May 4, 2016, and the City and County filed notices of appeal in early June 2016. Then, it was not until September 2016 that Sass Muni filed a Motion to Correct and Include Hearing Transcript in Appeal Record and Supporting Authority. The City and County submit that the only avenue for chancery court to review the motion was Mississippi Rule of Civil Procedure 60, and in Marter v. Marter , 95 So.3d 733, 740 (Miss. Ct. App. 2012), the Court of Appeals held that the chancery court lacks jurisdiction to grant Rule 60 relief when the Rule 60 motion is filed more than ten days after entry of the judgment and a notice of appeal has been filed.

¶ 16. However, Sass Muni did not file its motion under Rule 60. Instead, in its motion, it argued that, pursuant to Mississippi Rule of Appellate Procedure 10(e), the judgment should be corrected to reflect the portion of the chancery court's opinion that inadvertently had been left out of the judgment by its attorney. Rule 10(e) provides

If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated in the record, the parties by stipulation, or the trial court, either before or after the record is transmitted to the Supreme Court or the Court of Appeals, or either appellate court on proper motion or of its own initiative, may order that the omission or misstatement be corrected, and, if necessary, that a supplemental record be filed. Such order shall state the date by which the correction or supplemental record must be filed and shall designate the party or parties who shall pay the cost thereof. Any document submitted to either appellate court for inclusion in the record must be certified by the clerk of the trial court. All other questions as to the form and content of the record shall be presented to the appropriate appellate court.

We have no caselaw on a party using Rule 10(e) to correct a single document; however, consistent with the language of the rule, it appears that the record, specifically the judgment, did not accurately reflect what happened in the trial court, and Sass Muni sought relief to have the trial court correct the judgment to reflect the opinion. Therefore, the chancery court's correction of the judgment under Rule 10(e) was permissible. As such, the fact that the record already had been transmitted to the Court is of no moment because Rule 10(e) specifically allows the trial court to correct the error "before or after the record is transmitted" to the appellate courts.

¶ 17. Alternatively, Mississippi Rule of Civil Procedure 59(e) allows a party to file a motion to alter or amend a judgment, but the motion must be filed "not later than ten days after entry of the judgment." Thus, Rule 59 was not available, as Sass Muni did not file to amend the judgment until September 2016, which was well past the ten-day period on the judgment entered in May 2016. Perhaps the best and most appropriate avenue available would be through Mississippi Rule of Civil Procedure 60, specifically subsection (a).

¶ 18. Rule 60(a) provides:

Clerical mistakes in judgments ... and errors therein arising from oversight of omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders up until the time the record is transmitted by the clerk of the trial court to the appellate court and the action remains pending therein. Thereafter, such mistakes may be so corrected only with leave of the appellate court.

The error in the judgment is a clerical error subject to correction under Rule 60(a). In Whitney National Bank of New Orleans v. Smith , 613 So.2d 312, 315 (Miss. 1993), the Court explained that Rule 60(a)"can be utilized only to make the judgment or other document speak the truth; it cannot be used to make it say something other than was originally pronounced." Sass Muni's requested changes do reflect what the chancery court included in its written opinion, so the amendment does nothing more than reflect what the chancery court "originally pronounced." It also is important to note that, though the record had been transmitted to the Court, the Court then ordered, on Sass Muni's motion, that the record be sent back to the chancery court for Sass Muni to have an opportunity to review the record due to the chancery clerk's error in failing to give Sass Muni sufficient time for review under Mississippi Rule of Appellate Procedure 10(b)(5). Therefore, the record was back with the chancery court for review and potential correction when Sass Muni filed its motion.

CONCLUSION

¶ 19. Due to the chancery clerk's failure to give the required statutory notice, the tax sale was void, regardless of MIC-Rocky's subsequent waiver of the notice requirements. We hold that the chancery court did not err in voiding the tax sale and refunding the purchase price to Sass Muni.

¶ 20. AFFIRMED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, MAXWELL, BEAM AND ISHEE, JJ., CONCUR. CHAMBERLIN, J., NOT PARTICIPATING.


source: Caselaw Access Project

license: Public Domain

text:
    Michael W. CROSBY v. The MISSISSIPPI BAR
    NO. 2017-BA-00250-SCT
    Supreme Court of Mississippi.
    June 21, 2018 Rehearing Denied September 20, 2018
    ATTORNEY FOR APPELLANT: MICHAEL W. CROSBY, GULFPORT, MS (PRO SE)
    ATTORNEYS FOR APPELLEE: JAMES RUSSELL CLARK, ADAM BRADLEY KILGORE
    EN BANC.
   RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. Michael W. Crosby appeals the Complaint Tribunal's opinion and final judgment finding him in violation of Rules 1.3, 1.16, 8.1(b), and 8.4(a) and (d) of the Mississippi Rules of Professional Conduct, and issuing a public reprimand, based on his failure to file an appeal brief on his client's behalf, and for his failure to respond to the client's bar complaint. The Court finds that the Mississippi Bar proved by clear and convincing evidence that Crosby violated each Rule. Further, the Court finds that the tribunal's opinion is accurate and contains all material facts. The Complaint Tribunal's opinion and final judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

¶ 2. Michael Crosby was retained by Travis Cardell Brown to represent him in a criminal trial arising from the shooting of three University of Southern Mississippi football players. Brown was convicted, and Crosby filed a notice of appeal on August 31, 2012. The trial transcript was filed on April 3, 2013, and the appeal brief was to be filed by July 16, 2013.

¶ 3. Crosby requested additional time to file the appeal brief on July 16, 2013; August 21, 2013; September 10, 2013; September 16, 2013; and September 23, 2013. The first request for an extension of time cited Crosby's caseload and the voluminous record in Brown's case as the basis for needing additional time. The second and third requests for an extension of time cited Crosby's caseload. Crosby testified that, at the time he filed his third request for an extension of time, a dispute had arisen with Brown regarding the trial's venue, and whether Crosby could include this issue in the appeal brief. Crosby did not move for a change of venue from Forrest County for Brown's trial. Crosby testified that this was a strategic decision he made based on his years of experience questioning potential jurors in voir dire .

¶ 4. After Brown was convicted, Brown told Crosby that he should have moved for a change of venue. Crosby testified that this venue dispute created a conflict with Brown, in which Crosby would have had to include an ineffective-assistance-of-counsel claim in the appeal brief regarding his own representation of Brown at trial. Crosby testified that the venue issue prevented Crosby from being able to file the brief, although the appeal brief was "really close" to completion at the time the third request for additional time was filed.

¶ 5. Crosby's fourth request for an extension of time was filed on September 16, citing Crosby's caseload, and that the brief was not yet complete. Crosby's last request for an extension of time, filed on September 23, cited his own health issues. Crosby testified that he could have filed a completed appeal brief at this time, and that he had Brown's permission to do so. However, Crosby testified that Brown had changed his mind regarding the venue issue on numerous occasions, which ultimately prevented Crosby from filing the brief.

¶ 6. On October 4, this Court issued a Show Cause Notice, as Brown's appeal brief still had not been filed. Crosby was given fourteen days to file the appeal brief. Crosby testified that he had obtained Brown's permission to file the appeal brief. On October 18 at 4:55 p.m., Crosby electronically filed a Notice of Compliance with Show Cause Notice and Notice of Mailing. Crosby testified that he physically placed the appeal brief in the mail. After the brief was placed in the mail, Crosby was informed that Brown was getting another attorney to represent him. Crosby retrieved the brief from the mail, but did not inform the Court that Brown had obtained a different attorney, or that the Notice of Mailing was incorrect. Crosby took no action on Brown's case for another six days, and Brown's appeal was dismissed for failure to file an appeal brief on October 24, 2013.

¶ 7. After the appeal was dismissed, Crosby testified that he offered to file a petition for post-conviction relief (PCR) for Brown to pursue an out-of-time appeal, and Brown gave Crosby consent to do so. In a letter dated August 26, 2014, Crosby mailed the PCR and affidavit to Brown for his signature. Brown told Crosby that he did not receive the documents, and Crosby sent it two more times: once on October 10, 2014, and again on November 6, 2014. On December 3, 2014, Brown sent Crosby a letter stating that, although he felt Crosby was an "excellent attorney," Brown no longer wanted Crosby to represent him or to file the PCR. Crosby never filed anything with the Court to show that he no longer represented Brown. Brown later attempted to have his appeal reinstated through another attorney, but the Court of Appeals issued an order denying Brown's motion on February 10, 2015.

¶ 8. Crosby testified that, at the end of June 2015, a representative of the Mississippi Bar forwarded him a letter that Brown had written to the Bar's Consumer Assistance Program. Brown's letter stated the following:

My name is Travis Brown [and] I was supposedly represented by Michael Crosby out of Gulfport MS. We went to trial [and] lost so Mr. Crosby was supposed to file an appeal, but I lost my direct appeal because Mr. Crosby never filed the brief which is clearly inaffective [sic] assistance of councel [sic]. I can never get in touch with him [and] his office is always giving me the run around. [I'm] not doubting that Mr. Crosby is a good attorney but I feel like he has a lot going on in his life personally [that's] affecting his work as an attorney, so this is why I am filing the complaint with the Mississippi Bar [and] ask that this matter be looked into. Further more [sic] I have hired new counsel [and] no longer wish for Mr. Crosby to be my attorney.

The Mississippi Bar representative informed Crosby that a bar complaint form would be sent to Brown along with instructions for its filing. On July 10, 2015, Brown filed an informal bar complaint against Crosby for failing to file his appeal brief. Brown's complaint contained the following allegation: "Michael Crosby has been inaffective [sic] as my counsel. We went to trial [and] lost [and] he never filed an appeal brief on my half [sic]. Therefore my appeal was dismissed."

¶ 9. The Bar forwarded Brown's complaint to Crosby on July 10, 2015, and demanded that his response be filed on or before July 27, 2015. Crosby acknowledged that he had received the bar complaint and requested additional time to respond in an email to the Bar, which was granted with an extension to August 4. However, Crosby did not file a response to Brown's bar complaint. On August 25, 2015, the Bar sent Crosby a second demand letter requesting that he respond to Brown's complaint by September 1, 2015. Crosby did not submit a response by the date demanded.

¶ 10. On December 4, 2015, Crosby emailed James Clark, Deputy General Counsel for the Mississippi Bar, and informed Clark that he needed additional time to respond to Brown's complaint due to his current caseload. However, Crosby's testimony did not reflect that his caseload prevented him from submitting a response. Instead, Crosby testified that he deliberately chose not to submit a response to Brown's bar complaint because he believed his response would have included a personal issue that occurred in 2009 that he did not want shared with Brown. Further, Crosby testified that he believed that he was not required under the Rules of Professional Conduct to submit a response and instead believed that he would be given an opportunity to participate in an investigation into the conduct that gave rise to the bar complaint. Crosby never filed a response to Brown's bar complaint.

¶ 11. The Bar filed its formal complaint against Crosby on December 21, 2015, based on (1) Crosby's failure to file an appeal brief on Brown's behalf, and (2) Crosby's failure or refusal to respond to the Bar complaint filed by Brown. The Bar alleged that Crosby had violated the following Mississippi Rules of Professional Conduct:

Rule 1.2(a), which provides that a lawyer shall abide by a client's decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued;
Rule 1.3, which provides that a lawyer shall act with reasonable diligence and promptness in representing a client;
Rule 1.4(a), which provides that a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information;
Rule 1.16(d), which provides that upon termination of representation, a lawyer shall take reasonable steps to protect a client's interests;
Rule 8.1(b), which provides that a lawyer shall not fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information by a disciplinary authority; and
Rules 8.4(a) and (d), which provide that it is professional misconduct for a lawyer to violate or attempt to violate the rules of professional conduct or engage in conduct that is prejudicial to the administration of justice.

¶ 12. After more than twenty days elapsed with no answer or pleading from Crosby, the Bar filed an application for the Clerk of Court to enter default pursuant to Rule 55(a) of the Mississippi Rules of Civil Procedure. The Clerk entered default against Crosby the next day. The Bar then filed a motion for default judgment, alleging that Crosby had been personally served with process on January 4, 2016, and never filed an answer, motion, or any other pleading.

¶ 13. On February 29, 2016, Crosby filed a motion to set aside the Clerk's entry of default. Crosby produced an affidavit from the police officer who was responsible for service of process, who stated that he did not personally see, meet, speak to, or serve Crosby. Crosby also filed a motion to modify one deadline in the scheduling order. On April 22, 2016, the Complaint Tribunal granted Crosby's motion to set aside the clerk's entry of default, and denied the Bar's motion for default judgment. The Complaint Tribunal also denied Crosby's motion to modify the scheduling order as moot.

¶ 14. On April 29, 2016, Crosby answered the Bar's formal Complaint, relating the facts as they are discussed above. Trial was held on October 14, 2016, and Crosby was the only witness who testified. The Complaint Tribunal issued its Opinion and Final Judgment on November 14, 2016, finding that Crosby had violated Rules 1.3, 1.16, 8.1(b), 8.4(a), and 8.4(d) based on his failure to file an appeal brief on Brown's behalf, and his failure to respond to Brown's bar complaint. The tribunal then analyzed the nine factors outlined in Liebling v. Mississippi Bar , 929 So.2d 911, 918-20 (Miss. 2006), in order to determine the appropriate level of discipline. The tribunal found that the appropriate disciplinary sanction should be a public reprimand.

¶ 15. Crosby filed a motion to alter or amend the judgment, or alternatively, a motion to correct a clear error of law to prevent manifest injustice, or alternatively, a motion for a new trial or for judgment notwithstanding the verdict. Crosby raised the following issues: (1) the length of time it took the court reporter to file the trial transcript; (2) Brown's ability to seek an out-of-time appeal; (3) the venue dispute with Brown; and (4) the personal reasons for not responding to the bar complaint. The Complaint Tribunal denied Crosby's motion, and Crosby appealed.

STATEMENT OF THE ISSUES

¶ 16. The five issues raised by Crosby on appeal are restated verbatim et literatim :

Issue I.
If an appeal is dismissed due to the failure of the attorney to file the appellate brief, does such failure always constitute a violation of Rule 1.3 MRPC (i.e. failure of a lawyer to act with reasonable diligence in representing a client, or does Rule 2 - 4 of the MRAP and Mississippi Code Annotated Section 99-39-5(i) set forth reasons why the attorney's failure to file the appeal brief may constitute good cause.)[?]
Issue II.
Does Mr. Crosby's actions constitute withdrawal from representation of a client when he allowed the appeal to be dismissed, and further, did said actions constitute a violation of Rule 1.16 MRPC which requires a lawyer to withdraw only when it can be accomplished without harm to the client[?]
Issue III.
Does Mr. Crosby's failure to file written responses to the demand for the same, constitute a violation of Rule 8.1(b) MRPC under the unique circumstances of this case[?]
Issue IV.
Did Mr. Crosby violate Rule 8.4 MRPC which provides that it is misconduct to violate any rule of professional conduct and engage in conduct that is detrimental to the administration of justice[?]
Issue V.
Should the opinion and judgment of the bar, which is to be read publicly, state all the material and relevant facts which impacts [sic] Mr. Crosby, and should misstated facts be corrected to reflect the truth[?]

¶ 17. The first four issues can be restated simply as whether the Mississippi Bar proved by clear and convincing evidence that Crosby had violated each of the four rules. The final issue raised on appeal is restated as whether the Complaint Tribunal's opinion and final judgment omitted material facts or contains misleading statements.

STANDARD OF REVIEW

¶ 18. The appropriate standard of review in Bar discipline matters is as follows:

On appeal, this Court shall review the entire record and the findings and conclusions of the Tribunal, and shall render such orders as the Court may find appropriate. When reviewing disciplinary matters[,] this Court reviews the evidence de novo , on a case-by-case basis, sitting as triers of fact, and no substantial evidence or manifest error rule shields the Tribunal from scrutiny.

Rogers v. Mississippi Bar , 731 So.2d 1158, 1163-64 (Miss. 1999) (quoting Asher v. Mississippi Bar , 661 So.2d 722, 727 (Miss. 1995) ) (internal quotations omitted). While this Court applies a de novo standard of review when considering evidence, "deference is given to the Tribunal's findings 'due to its exclusive opportunity to observe the demeanor and attitude of the witnesses, including the attorney, which is vital in weighing the evidence.' " Id. at 1164. The Mississippi Bar must "prove by clear and convincing evidence that the respondent's actions constitute professional misconduct." Id. (quoting Mississippi Bar v. Pels , 708 So.2d 1372, 1374 (Miss. 1998) ).

DISCUSSION

¶ 19. Other than citing the four Rules of Professional Conduct that Crosby was found to have violated, Crosby's brief contains two citations of authority. The first citation refers to Rules 2 through 4 of the Mississippi Rules of Appellate Procedure, and the second cites Mississippi Code Section 99-39-5(i), which provides that any person sentenced by a Mississippi court may file a motion for an out-of-time appeal. See Miss. Code Ann. § 99-39-5(i) (Rev. 2015). Crosby cites not a single case in his brief nor any other relevant authority to support his arguments on appeal. The Bar asserts in its brief that Crosby's appeal should be dismissed.

¶ 20. Rule 28(a)(7) of the Mississippi Rules of Appellate Procedure provides that an appellant's brief "shall contain the contentions of the appellant ... and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on." This Court has held that an appellant's failure to do so constitutes abandonment of the issue and makes the issue procedurally barred for appellate review. Matter of Estate of Smith v. Boolos , 204 So.3d 291, 313 (Miss. 2016) (quoting McNeil v. Hester , 753 So.2d 1057, 1075 (Miss. 2000) ). Accordingly, the Court may dismiss Crosby's appeal on this basis alone, because his brief contains virtually no citations to the record, and the two citations of authority that he cites do not support his arguments.

¶ 21. Notwithstanding, this Court has examined whether the Mississippi Bar proved by clear and convincing evidence that an attorney violated the Rules of Professional Conduct based on the attorney's factual arguments alone. See, e.g. , Shah v. The Mississippi Bar , 962 So.2d 514, 522 (Miss. 2007) (citing only the standard of review in discussion of whether the Bar proved by clear and convincing evidence that an attorney violated the Rules of Professional Conduct.). This Court has "exclusive jurisdiction of matters pertaining to attorney discipline and reinstatement, and this Court is the ultimate judge of matter[s] arising under the Rules of Discipline for the Mississippi Bar." Asher , 661 So.2d at 727. And while the Court "may delegate the fact-finding process to others, such as the Mississippi Bar, its tribunals, or courts in other jurisdictions, the final decision on whether particular conduct constitutes a violation of our rules of professional conduct and of discipline rests with this Court." Mississippi Bar v. Labovitz , 226 So.3d 92, 95 (Miss. 2016). Crosby cites the Rules of Professional Conduct that he was found to have violated and asserts several factual reasons to support his arguments. Therefore, the Court may consider the arguments presented by Crosby on appeal.

I. Rule 1.3

¶ 22. The Court begins with an examination of the record to determine whether, by clear and convincing evidence, Crosby violated Rule 1.3. Rule 1.3 provides that "[a] lawyer shall act with reasonable diligence and promptness in representing a client." The Complaint Tribunal found that Crosby's failure to file an appeal brief constituted a violation of this Rule. Crosby argues that Mississippi Rules of Appellate Procedure 2 through 4, and Mississippi Code Section 99-39-5(i), provide an excuse, or establish "good cause" for his violation of Rule 1.3.

¶ 23. Mississippi Rule of Appellate Procedure 2 provides the penalties for noncompliance with the rules, e.g. , dismissals and other sanctions, and when the rules may be suspended in a particular case. This Rule does not support Crosby's argument that he did not violate Rule 1.3. Mississippi Rule of Appellate Procedure 3 provides how appeals may be taken, including the filing and notice of appeal, inter alia . This Rule does not support Crosby's argument. Finally, Mississippi Rule of Appellate Procedure 4 provides the procedure for when an appeal may be taken. Again, this Rule does not provide any support for Crosby's argument that he did not violate Rule 1.3 by failing to file an appeal brief. Likewise, Mississippi Code Section 99-39-5(i) is irrelevant to this appeal, as this statute deals exclusively with post-conviction relief.

¶ 24. Crosby does not dispute that he failed to file an appeal brief for Brown. Crosby filed the Notice of Appeal on Brown's behalf, requested numerous extensions of time to submit the brief, never terminated his representation of Brown even after Brown informed him that he was seeking another attorney, and never filed the appeal brief. Crosby's only argument related to his failure to file the brief is that Brown insisted that the venue issue be included, which Crosby felt was not appropriate to include. As such, the Mississippi Bar proved by clear and convincing evidence that Crosby violated Rule 1.3 based on Crosby's failure to file Brown's appeal brief.

II. Rule 1.16

¶ 25. Rule 1.16 requires a lawyer to withdraw from representation of a client only when the same can be accomplished without harm to the client. The Complaint Tribunal found that Crosby effectively withdrew from representing Brown on appeal when he allowed the appeal to be dismissed, which caused harm to Brown and constituted a violation of this Rule. Crosby combined his argument regarding Rule 1.3 with Rule 1.16 in his brief; therefore, he asserts the same arguments under Mississippi Rules of Appellate Procedure 2 through 4, and Mississippi Code Section 99-39-5(i), which are neither applicable nor supportive of Crosby's argument. Further, Crosby argues that, because he offered to file a petition for PCR for an out-of-time appeal for Brown, he did not withdraw or harm Brown.

¶ 26. Crosby's mere offer to file a PCR for Brown does not excuse his failure to file an appeal brief for Brown. There is no guarantee that Brown would have been entitled to an out-of-time appeal under the PCR statute. Further, Brown's second attorney attempted to reinstate Brown's appeal, and it was denied. Crosby's allowing Brown's direct appeal to be dismissed amounted to a withdrawal by Crosby and certainly caused harm to Brown. The Bar proved by clear and convincing evidence that Crosby violated Rule 1.16.

III. Rule 8.1

¶ 27. Rule 8.1(b) provides that a lawyer in connection with a disciplinary matter shall not knowingly fail to respond to a lawful demand for information from a disciplinary authority, other than information otherwise protected by Rule 1.6, i.e. , confidential information related to the representation of client. The Complaint Tribunal found that Crosby violated this Rule because he had knowledge of the Bar complaint and the need to respond (he requested additional time to respond and acknowledged at trial that he had received the demands), but failed to respond.

¶ 28. Crosby argues that Rule 8.1 does not require a response to be in writing. Crosby argues that, because he spoke with an attorney from the Bar, and because he agreed to participate in the Bar's investigation, he complied with Rule 8.1. Crosby further argues that he did not intend to violate Rule 8.1. Crosby does not cite any authority to support his arguments. Although Rule 8.1 does not specifically state that a response must be in writing, the Mississippi Bar informed Crosby that his response to Brown's bar complaint was to be in writing. On the day the Bar forwarded Brown's complaint to Crosby, a letter was included that stated Crosby was required to attach a certificate of service showing that a full and complete copy of the response had been served upon Brown, or it would not be accepted for filing. Further, Crosby acknowledged that his response had to be in writing in email correspondence with the Bar. Crosby's argument that he did not intend to violate Rule 8.1 also is without merit. Again, Crosby acknowledged that his response was to be in writing but he failed to submit a response. Thus, he "knowingly" failed to respond to a lawful demand for information from the Bar. The Bar proved by clear and convincing evidence that Crosby violated Rule 8.1 by failing or refusing to respond to Brown's bar complaint.

IV. Rule 8.4

¶ 29. Although Crosby raises Rule 8.4(a) and (d) in his statement of the issues, Crosby does not present any argument in his brief regarding the Tribunal's finding that he violated Rules 8.4(a) and (d). Thus, the Court will not address them.

V. WHETHER THE COMPLAINT TRIBUNAL'S OPINION AND JUDGMENT OMITTED MATERIAL FACTS OR CONTAINS MISLEADING STATEMENTS.

¶ 30. Crosby argues that the Complaint Tribunal's opinion and final judgment omits or misstates "many material and relevant facts" that he alleges will impact his ability to practice. First, Crosby argues that the opinion omits the fact that Brown's case could have been reinstated for good cause by either motion or petition, and instead states that Brown received "the worst possible outcome." This is not a material fact that must be included in the tribunal's opinion and final judgment. Whether or not Brown's appeal could be reinstated is irrelevant as to Crosby's failure to file an appeal brief on Brown's behalf.

¶ 31. Second, Crosby alleges that the opinion does not mention that Brown refused to allow Crosby to reopen Brown's case by filing a PCR. Again, whether or not Brown's appeal could be revived has no relevance to Crosby's failure to file the appeal brief.

¶ 32. Crosby next alleges that the opinion does not state anything about "the long delay which caused communication and cooperation issues with [Brown]." Crosby does not explain what delay he is referring to. The Court is unable to discern whether this is a relevant or material fact, because Crosby does not expand on this issue any further.

¶ 33. Further, Crosby alleges that the opinion does not state the total number of days that Crosby requested in his motions for extensions of time to file Brown's appeal brief, which he states totaled only sixty days, after "thirteen months of delay." Although Crosby does not explain what thirteen-month delay to which he is referring, he alleges in his statement of facts that the court reporter took thirteen months to file the trial transcript. Presumably, this is the thirteen-month "delay" to which Crosby refers. In any event, the amount of time that Crosby requested in his motions for extensions of time is immaterial, and the opinion and final judgment contains nothing misleading about Crosby's five requests for an extension of time.

¶ 34. Last, Crosby alleges that the opinion does not mention the work that Crosby did in preparing Brown's motion for judgment notwithstanding the verdict and Brown's motion for a new trial. The substantive work that Crosby did before, during, and after trial were not challenged by the Mississippi Bar and therefore are entirely irrelevant to Crosby's failure to file the appeal brief, which is the only issue that gave rise to Brown's bar complaint. This issue is without merit.

CONCLUSION

¶ 35. The Mississippi Bar proved by clear and convincing evidence that Michael W. Crosby violated Rules 1.3, 1.16, 8.1, 8.4(a), and 8.4(d). Further, the Complaint Tribunal's opinion and final judgment included all material facts, and did not contain any misleading statements.

The tribunal's opinion and final judgment are affirmed.

¶ 36. AFFIRMED.

WALLER, C.J., KITCHENS, P.J., KING, COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      Crosby raised the length of time it took the court reporter to file the trial transcript in his Motion to Alter or Amend the Complaint Tribunal's judgment, but he does not explain how the delay affected the filing of the appeal brief. He only requested that this fact be included in order to "fully reflect" the delay in filing the appeal brief.

      Crosby was questioned as to why he electronically filed every motion and the Notice of Compliance with Show Cause Notice and the Notice of Mailing, but chose to mail the brief. Crosby conceded in his testimony that, in order to comply with this Court's Show Cause Notice, the brief needed to be electronically filed by midnight on October 18.

      At trial, the Bar raised the issue of Crosby submitting the Notice of Mailing of the brief without actually mailing the brief. The Bar also questioned Crosby regarding why he had failed to seek remedial measures by informing the Court that the brief had not been mailed. However, the Bar did not charge Crosby with a violation of any Rule based on this failure, and the Complaint Tribunal did not address it. Therefore, the Court declines to address it.

      An email dated September 4, 2015, was included in the record on appeal reflecting that Crosby had submitted a response to a separate bar complaint filed by a different client. This response was not to Brown's bar complaint.

      The record demonstrates that it did not take the court reporter thirteen months to file the trial transcript. The jury reached its verdict in Brown's trial on June 28, 2012, and the record reveals that the trial transcript was filed on April 3, 2013.


author: CHAMBERLIN, JUSTICE, FOR THE COURT:

text:
    William RANDLE, Jr. a/k/a Booman and the Democratic Executive Committee of the City of Okolona, Mississippi v. Tommie James IVY, Sr.
    NO. 2017-EC-01587-SCT
    Supreme Court of Mississippi.
    January 31, 2019 Rehearing Denied May 9, 2019
    ATTORNEY FOR APPELLANT: WALTER HOWARD ZINN, JR.
    ATTORNEY FOR APPELLEE: GARY STREET GOODWIN, Columbus
    BEFORE WALLER, C.J., CHAMBERLIN AND ISHEE, JJ.
   CHAMBERLIN, JUSTICE, FOR THE COURT:

¶1. Tommie James Ivy Sr. filed an election contest against William Randle Jr. and the Democratic Executive Committee of the City of Okolona following the primary election of the Democratic nominee for the office of city marshall. The special tribunal rendered a judgment in favor of Ivy, ordered a special election and excluded Randle from the special election. Randle appealed, and Ivy cross-appealed. The Court holds that the special tribunal properly determined that a special election was required but improperly held that Randle was excluded from being a candidate. Therefore, the Court affirms in part, reverses in part and remands. Further, the cross-appeal is dismissed.

FACTS

¶2. On May 2, 2017, a primary election for the Democratic nominee was held between three candidates for the office of city marshall of the City of Okolona, Mississippi. William Randle Jr. and Tommie James Ivy Sr. received the highest number of votes, requiring a runoff election. A primary runoff election was held on May 16, 2017. The result was very close. Randle was certified the winner with 522 votes. Ivy received 521 votes.

¶3. Ivy filed a Petition to Contest the Election under Mississippi Code Section 23-15-921 (Rev. 2018). The Democratic Executive Committee of the City of Okolona held a hearing, denied relief to Ivy and dismissed the petition. Ivy filed a Petition for Judicial Review of the Election Contest. A special judge was appointed.

¶4. In the meantime, Randle proceeded to the general election. He ran against an independent candidate, Tommie James Ivy Jr., and won. He held the office of city marshall at the time of the special tribunal's hearing and judgment.

¶5. At the hearing before the special tribunal, Ivy questioned the legality of eleven affidavit ballots from five different wards. After testimony from the people who placed the questioned votes, the special tribunal determined that nine votes were illegal and two were legal. With the new vote totals, the special tribunal found from the bench that Ivy had received 518 votes and Randle had received 516 votes. Further, the special tribunal stated that no fraud or "an intention to do anything to determine the outcome of [the] race" existed and that a special election should be held. In a subsequent written judgment, the special tribunal provided,

Pursuant to § 23-15-937 of the Mississippi Code of 1972, as amended, a special election is required to be conducted by the City of Okolona, in which Tommie James Ivy, Sr. shall be designated on the ballot as the Democratic party nominee and Tommie James Ivy, Jr. shall be designated on the ballot as an independent candidate for the office.

Randle appealed. Ivy cross-appealed.

¶6. The governor issued a writ of election, which was filed and certified. Randle filed an Emergency Motion to Stay Judgment Pending Appeal with this Court and the trial court. Both this Court and the trial court denied Randle's motion. Tommie James Ivy Jr. then indicated his intention to withdraw from the race (thus seeking tranquility at future family reunions). The Okolona Election Commission met to consider the writ of election and the withdrawal of the independent candidate, Tommie James Ivy Jr. The Commission found uncontested the nomination of Tommie James Ivy Sr. and dispensed with the pending special election. Ivy took his oath of office and entered bond, assuming the position of city marshall on December 17, 2017.

STATEMENT OF THE ISSUES

¶7. On appeal, the parties do not dispute the special tribunal's findings that nine of the eleven affidavit ballots were illegal and that neither fraud nor an intention to determine the outcome existed. Randle presents two issues, which are provided verbatim:

1. Whether Special Tribunal erred in determining a Special Election for a General Election instead of a Primary Election?
2. Whether Special Tribunal erred in excluding Contestee /Appellant from Special Election?

Ivy consolidates the two issues into one issue, which is provided verbatim:

Did the special tribunal err in determining that a special election was required and if appellant was properly excluded as a candidate?

The Court restates the issues as follows:

(1) Whether the special tribunal erred in determining that a special election was required.
(2) Whether the special tribunal erred in excluding Randle from the special election.

STANDARD OF REVIEW

¶8. "In an election contest, the standard of review for questions of law is de novo." McDaniel v. Cochran , 158 So.3d 992, 995 (Miss. 2014). Further, the Court reviews the finding of facts of the "trial judge sitting without a jury for manifest error, including whether the findings were the product of prejudice, bias, or fraud, or manifestly against the weight of the credible evidence." Thompson v. Jones , 17 So.3d 524, 526 (Miss. 2008) (internal quotation omitted).

ANALYSIS

(1) Whether the special tribunal erred in determining that a special election was required.

¶9. Randle argues that the special tribunal should have ordered a special "primary" election, not simply a special election. Ivy maintains that the special tribunal properly found Ivy to be the winner of the primary and that it properly called a special election. Further, Ivy states that Randle's argument is not supported by any citation of authority.

¶10. The Court first considers whether Randle's argument is supported by authority. The Court routinely holds that the "failure to cite legal authority in support of an issue is a procedural bar on appeal." Lane v. Lampkin , 234 So.3d 338, 350 (Miss. 2017) (internal quotation omitted). Although Randle's briefs do not contain many citations, they do contain some. Specifically, both briefs cite the statute governing the issues on appeal: Mississippi Code Section 23-15-937. Therefore, Randle's argument is not barred.

¶11. Section 23-15-937 provides the procedure for a primary election contest when the official ballots of the general election have already been printed and/or the general election has already occurred. See Miss. Code Ann. § 23-15-937 (Rev. 2018). It states that the contest "shall not thereby be dismissed but the cause shall nevertheless proceed to final judgment and if the judgment is in favor of the contestant, the election of the contestee shall thereby be vacated and the Governor ... shall call a special election for the office or offices involved." Id. The Court has held that Section 23-15-937 is unambiguous; therefore, the Court "must interpret it strictly." Smith v. Hollins , 905 So.2d 1267, 1277 (Miss. 2005).

¶12. Here, the special tribunal found Ivy to be the winner of the primary. The special tribunal's judgment, therefore, was in favor of the contestant. See Miss. Code Ann. § 23-15-937. The special tribunal then stated that a special election "is required." At the time of the special tribunal's judgment, a general election had already occurred, and Randle was occupying the office of city marshall. Thus, the special tribunal correctly found that a special election was required under Section 23-15-937.

(2) Whether the special tribunal erred in excluding Randle from the special election.

¶13. Randle maintains that he "should have been in the Special Election." Notably, however, he also maintains that two special elections should have occurred: a special "primary" election and a special "general" election. Ivy maintains that a special election was required with him as the Democratic candidate and Tommie James Ivy Jr. as the independent candidate.

¶14. In Thompson , the Court addressed whether a "special primary election and a special general election is proper" once the general election has already occurred. Thompson , 17 So.3d at 528. The Court looked to Blakeney v. Mayfield , 226 Miss. 53, 84 So.2d 427 (1956), to understand the meaning of a special election. Thompson , 17 So.3d at 529. Blakeney stated, "The phrase 'special election' is clearly intended to mean a special election in the usual sense of that term, [sic] and not a party primary. Nor does this statute contemplate a party primary after the general election ...." Blakeney , 84 So.2d at 428.

¶15. Mississippi Code Sections 23-15-857 and 859 (Rev. 2018) provide the procedure for filling a vacancy and conducting a special election for an elected office of a city. Specifically, Section 23-15-857 provides the process for qualifying to fill the vacancy. Section 23-15-859 provides the required notice and time constraints for the special election if "the statute authorizing or requiring the election" does not provide that information. Miss. Code Ann. § 23-15-859. The statutes do not limit a special election to certain candidates, as the special tribunal did here. Further, Blakeney and Thompson clarify that a special election proceeds "in the usual sense of that term." Blakeney , 84 So.2d at 428, Thompson , 17 So.3d at 529. Therefore, the special tribunal erred in excluding Randle from the special election.

¶16. Before concluding, this Court recognizes the statutory constraints which control today's holding. Although Randle disputes the nature of the special election, saying it should have been a special "primary" election, he also concedes that the special tribunal "did appropriately determine the outcome of the votes and that a special election should have been called ...." Thus, no dispute exists that Ivy won the primary. However, because a general election had already occurred, the special tribunal and the Court are both constrained to hold that a special election was required and that the general rules for special elections do not exclude Randle. In a case with similar facts, the Court recently noted the potential inequity of the instant holding. The Court stated,

Equity demands that Smith should be allowed to take the seat on the board of supervisors without any further action.... However, because the statute applies and because the statute does not allow judges to use their discretion, we must order that a special election be held. We urge the Legislature to cure the gross inequity that candidates under these circumstances must face, and we reluctantly hold that a special election must be held.

Smith , 905 So.2d at 1277-78. For these reasons, the Court holds that Randle should not have been excluded from the special election.

CONCLUSION

¶17. While the special tribunal correctly found that Section 23-15-937 requires a special election, the special tribunal erred in excluding Randle from the special election. The judgment of the special tribunal is affirmed in part, reversed in part and remanded. Further, the cross-appeal is dismissed.

¶18. ON DIRECT APPEAL: AFFIRMED IN PART, REVERSED IN PART AND REMANDED. ON CROSS-APPEAL: DISMISSED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, MAXWELL, BEAM AND ISHEE, JJ., CONCUR.

      The Notice of Cross-Appeal states that Ivy is appealing the trial court's denial of the assessment of court costs against Randle. Although the cross-appeal does not appear to have been dismissed, Ivy's brief does not address the issue. Therefore, the Court considers it abandoned and dismisses it.

      Notably the parties are not arguing that the special tribunal erred in determining Ivy to be the winner. The arguments address the procedure surrounding special elections.

      Although the statute numbers have changed, the text of the statute that Blakeney interpreted matches the pertinent part of Section 23-15-937. See Miss. Code Ann. § 23-15-937 (original version at Miss. Code § 3187 (1942) ).


author: KING, PRESIDING JUSTICE, FOR THE COURT:

text:
    Jayvious JOHNSON v. STATE of Mississippi
    NO. 2017-KA-00534-SCT
    Supreme Court of Mississippi.
    February 21, 2019 Rehearing Denied May 9, 2019
    ATTORNEY FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, JACKSON
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER, JACKSON
    BEFORE KITCHENS AND KING, P.JJ., AND COLEMAN, J.
   KING, PRESIDING JUSTICE, FOR THE COURT:

¶1. Jayvious Johnson was convicted of two counts of capital murder with firearm enhancement, one count of kidnapping with firearm enhancement, and one count of conspiracy. The verdicts are not against the overwhelming weight of the evidence, and the trial court did not commit reversible error on the evidentiary issues Johnson raises. This Court therefore affirms Johnson's convictions.

FACTS AND PROCEDURAL HISTORY

¶2. In the early morning of November 12, 2013, Tavoris Marshall (Marshall) and Kevion Gorman were shot and killed. Jayvious Johnson (Johnson), Dbryus Story, Jamario Hodges, and Favian Vaughn were indicted for conspiracy to commit robbery, capital murder with firearm enhancement, and kidnapping with firearm enhancement. A joint trial for Johnson, Story, and Hodges was held in December 2016. Vaughn pled guilty to accessory after the fact prior to trial.

¶3. At trial, Herdicine Marshall (Herdicine), Tavoris Marshall's grandmother with whom he had lived at the time of his murder, testified that when she went to bed on November 11, 2013, Marshall, Gorman, Corderro Walker, Stanley Self, and her then-seven-year-old grandson Kenny were all in her house. A loud noise woke Herdicine up at approximately 2:00 a.m. on November 12, 2013. She ran to her bedroom door and into the living room where she witnessed three individuals exiting Marshall's bedroom, two of whom she could not identify. The third individual was Self. She asked him what was going on, and he responded, "I don't know, Grandma; I don't know." One of the other individuals then pushed her down, and all three of them ran out the front door. She testified that she did not witness any struggle between Self and the other two individuals, nor did she see any gun pointed at Self. She did not witness any force used to remove Self from the house.

¶4. Investigator Robert Graham responded to the scene and testified that he found two .22 shell casings, one near the door and one near the bed where Marshall lay, and one .25 bullet near the loveseat where Gorman lay. He testified that he found Marshall lying on the bed on his back, face up. Gorman was lying on a loveseat wrapped in a comforter. A video game was frozen on the television, and a video game controller was on a beanbag chair in front of the television. Photographs depicting the scene described by Investigator Graham, as well as of the home and the path next to it, were also entered into evidence.

¶5. Self, who was fourteen years old at the time of the murders, testified that he visited Marshall's home daily to "chill" and play video games. He testified that he was at Marshall's home playing video games around 1:00 or 2:00 a.m. on November 12, 2013, when Marshall was killed. He stated that he, Marshall, and Gorman were in Marshall's small bedroom, and that Gorman was sleeping while Marshall was watching Self play the video game. Self was sitting on the bed near Marshall. Story knocked on the window, and Marshall told Self to go open the front door; Self complied. Story came in and purchased some pills from Marshall. He left, and Marshall told Self to lock the door behind him. When Self went to the door, the knob was twisting, so he let Story, along with Johnson, back in. They all went back to the room, Self sat back down, and then saw that Johnson had a .22 rifle in his hand. Johnson asked Marshall, "where's the check?" Marshall asked where Johnson got the gun. Johnson again asked where the check was, and Marshall responded, asking if Johnson wanted the check. Then Johnson shot Marshall. He also shot Gorman twice with the .22 rifle. Johnson turned toward Self, and pointed the gun at him, but, according to Self, the gun jammed. At that point, Self rushed Johnson, grabbed the gun, and they tussled over it. After the tussle, Self balled himself up on the bed, and Johnson grabbed a pistol from Story. Self ran out of the room. He saw Herdicine coming out of her room, and she asked Self what happened, and he responded, "I don't know," because he was scared. Johnson then pushed Herdicine down, and Self ran out the front door.

¶6. When Self got outside the house, Johnson grabbed him and told Self that he was coming with them. Self started screaming, "don't kill me," and Johnson told him he was not going to kill Self because Self was Johnson's cousin. Johnson grabbed Self by the shoulder and took him to the car, while Story followed behind them with a shoebox in his hands. Johnson put Self into the car, a brown Chevrolet Malibu; Vaughn was sitting in the driver's seat and Hodges, who was standing outside the car, got into the front passenger's seat. Johnson started yelling that he needed two more shells because two people were not dead, specifically requesting that Hodges give him more shells. Vaughn drove the group to Eastgate, where Vaughn and Hodges got out of the car and starting walking away. Johnson then took the rifle and put it over a fence, and then Story gave Self two pistols and instructed him to put them by the fence; Self complied. Johnson and Story told Self to get back into the car and drive it. Self drove to another house nearby. There, Johnson and Story offered Self marijuana to stay quiet, then Johnson told Self that if he said anything, he would have a friend kill Self. Self told them he would not say anything, and then ran home to find the police waiting in his yard to arrest him.

¶7. At the police station, Self gave a statement that he testified was a lie, and at trial he testified that he had lied in his first statement because he was scared. He was then taken into custody and held in the youth detention center. He later wrote a second statement, then gave two more statements, which he testified were the truth. Self also led the police to the disposed guns. During cross-examination, Self was thoroughly questioned regarding his role with Marshall as an alleged "door worker" for Marshall's drug business, his motivation to lie to protect himself, and his familiarity with the Marshall home and Marshall's personal effects, among other things, congruent with the defense theory that Self and Vaughn committed the murders.

¶8. Vaughn testified that he was at his house on the afternoon of November 11, 2013, when Johnson called him. Johnson and Vaughn went to the store in Johnson's car, where Johnson told him that he was "hurting" and needed to "hit a lick," meaning to rob someone. They smoked marijuana, rode around, and went to Marshall's house to purchase drugs. Gorman, Self, and a few other people were at Marshall's house. After purchasing drugs, Vaughn began driving Johnson's car, while they rode around "smoking and on Xanax." They went to another store and ran into Hodges, who joined them. They then picked up Story, who was walking. When they ran out of drugs, they went back to Marshall's house, where Vaughn went in and purchased more drugs. They then drove around more, until they parked at Shamrock Apartments, where they stayed in the car to do more drugs and to avoid the police.

¶9. At Shamrock Apartments, Johnson said that he was "ready to hit a lick," and stated that he wanted to rob Marshall. Vaughn said he was not "with him," and Hodges also declined to join the robbery. Story said, "Let's go." At that point, Johnson and Story exited the car and went down a pathway that led to Marshall's home. Johnson had a long black gun with him, and Story had a silver gun on his waist. The next thing Vaughn witnessed was Johnson and Story running back to the car with Self. Story was carrying a shoebox. Story and Johnson put Self in the car, and Self was "hollering," "don't kill me." Commotion occurred in the car, and Johnson told Vaughn to go, because something bad had happened. Vaughn started the car and drove to Eastgate, because he knew no police would be there. While he was driving, he heard Story ask Hodges if he had any bullets to kill Self, and Hodges said he did not. Meanwhile, Johnson stated that they should kill Self, but Johnson also stated that he was not going to kill his little cousin. Once they got to Eastgate, Vaughn and Hodges jumped out of the car and left. Shortly thereafter, Vaughn witnessed Johnson, Story, and Self speeding by, with Self driving. Vaughn and Hodges then called Corderro Walker, who Hercidine testified had been at her home when she went to bed, to come pick them up. Walker took Vaughn home, where his father let him in the house.

¶10. The next day, Vaughn learned that the police were looking for him, and he turned himself in. Vaughn gave four statements to the police. He admitted that he was not truthful in all of these statements because he was scared. He was "locked up" the entire time when he gave all of his statements to the police. During cross-examination, the defense thoroughly questioned Vaughn regarding his inconsistent statements to the police and his motivation to lie to protect himself, among other things.

¶11. Investigator George Serio testified that Self was taken to juvenile detention after he was arrested in the early morning of November 12, 2013, and that Vaughn, Hodges, Story, and Johnson were taken to the Bolivar County Sheriff's Department when they were arrested. The two facilities were in different locations. Investigator Serio performed a gunshot residue (GSR) kit on Self. After Self disclosed the location of the guns, Investigator Serio went to the location identified and recovered a .25 and a .380 by a fence and a .22 Ruger rifle on the other side of the fence in the field. He also testified that during the two statements that he took, Vaughn was basically begging to clear his name.

¶12. Several forensics experts testified. A gunshot residue expert testified that Self's GSR kit found "particles indicative of gunshot residue" on the back of Self's right hand, on the back of his left hand, and on his left palm. No GSR was found on Self's right palm. However, while the residue found was consistent with GSR, it did not meet each and every factor needed to exclude the residue as coming from another environmental source. He also testified that three scenarios explain how GSR could get on a person's hands: 1) the person discharged a firearm; 2) the person was in close proximity (approximately two feet) to a discharged firearm; or 3) the person handled something with GSR on it.

¶13. The medical examiner testified that Marshall had one gunshot wound to the head and classified the wound as consistent with a distant wound, meaning that the gun would have been at least three feet away from Marshall. She testified that Gorman had two gunshot wounds, one to the head and one to the chest, both consistent with a distant gunshot wound.

¶14. A firearms expert testified that she received a .25 pistol, a .380 pistol, a .22 Ruger rifle, nineteen live rounds for the .22 rifle that were not in the rifle when received, three cartridge casings, and several bullet fragments recovered from the autopsies of Marshall and Gorman. She found that two of the casings had "class characteristics" consistent with the .22 rifle, meaning that the caliber and shape of the firing pin were the same. She found that the third casing had the same class characteristics as the .25 pistol. However, the casings contained insufficient individual markings to determine whether they were fired from those particular weapons. The bullet fragments recovered from Marshall's autopsy had class characteristics consistent with the .22 rifle, but had insufficient individual markings to determine whether they were fired from the recovered .22 rifle. The bullet fragments recovered from Gorman's lung had class characteristics consistent with the .22 rifle, but had insufficient individual markings to determine whether they were fired from the recovered .22 rifle. The remaining bullet fragments recovered were too small to make any comparisons. The firearms expert further testified that she did not have any difficulty test firing the .22 rifle, but that once a jam is cleared, a gun should be able to be fired normally. She noted that GSR exits from any opening in a gun, but for the .22 rifle, GSR would mostly come out of two spots: the muzzle and above the trigger.

¶15. A latent print examiner testified that she found no latent prints of value on any of the three guns or two submitted magazines.

¶16. Story and Johnson both produced alibis. Johnson's wife, Jasmine Johnson (Jasmine), testified that Johnson was home with her and his son all night on November 11, 2013, from 4:00 p.m. until 7:00 or 8:00 a.m. on November 12, 2013. She stated that they both went to sleep around 9:00 or 10:00 p.m. on November 11, 2013. She further testified that she would have known had Johnson gotten out of bed after she went to sleep. The State called Bobby Harper, Vaughn's father, as a rebuttal witness. He testified that at 8:30 or 9:00 p.m. on November 11, 2013, he saw Vaughn, Story, Johnson, and Hodges sitting in Johnson's gold Malibu outside a house. On cross-examination, Harper admitted that he only gave the prosecutors this information a few days before trial. He also admitted that shortly after Vaughn was arrested, Harper told a local television station that Vaughn had been home with him at the time Marshall and Gorman were murdered.

¶17. During Self's cross-examination, the defense attempted to introduce photographs of Self with guns, as well as several juvenile adjudications involving Self. The photographs were undated, and appear to be printed screenshots of photographs from an unknown Facebook profile. The court questioned whether the photographs had been authenticated, especially considering the absence of a date, and further questioned whether they were relevant and whether they were more prejudicial than probative. The court ultimately found that the photographs were irrelevant. The court did, however, allow the defense to cross-examine Self regarding whether he had taken photographs with guns. The defense argued that it was entitled to use juvenile adjudications that occurred after this incident to impeach Self's credibility. The court found that the adjudications were inadmissible under Rule 609.

¶18. The jury instructions included an instruction that a witness's testimony may be discredited or impeached with prior inconsistent statements. It also included an instruction that the law regards alleged accomplice testimony with suspicion and distrust. The jury ultimately found Johnson guilty of conspiracy, two counts of capital murder with firearm enhancement, and kidnapping with firearm enhancement. Johnson appeals his convictions, arguing that 1) the verdicts are contrary to the weight of the evidence, and 2) the court erred in excluding the photographs of Self and his juvenile adjudications.

ANALYSIS

1. Whether the verdicts are against the overwhelming weight of the evidence .

In considering whether a verdict is contrary to the overwhelming weight of the evidence, this Court reviews the evidence in the light most favorable to the verdict to determine whether the verdict is so contrary to the overwhelming weight of the evidence that allowing it to stand would amount to an unconscionable injustice. Little v. State , 233 So.3d 288, 2017 WL 4546740 (Miss. Oct. 12, 2017). In reviewing the evidence in the light most favorable to the verdict, the Court must accept the evidence supporting the verdict as true. Gillett v. State , 56 So.3d 469, 504 (Miss. 2010). This Court will reverse a trial court's denial of a motion for new trial only when the trial court abused its discretion. Id.

Cyrus v. State , 248 So.3d 760, 761-62 (Miss. 2018). Johnson argues that the testimonies of Self and Vaughn cannot support his convictions because each witness's testimony was improbable, self-contradictory, and unreasonable.

¶19. While uncorroborated accomplice testimony may be sufficient to convict an accused, such uncorroborated testimony is insufficient to support a conviction when the testimony is unreasonable, self-contradictory, or substantially impeached. Osborne v. State , 54 So.3d 841, 846 (Miss. 2011). "Only slight corroboration of an accomplice's testimony is required to sustain a conviction." Id. at 847. The corroborated testimony must be that portion of the testimony that connects the defendant to the crime. Id. The same rule is relevant to the uncorroborated testimony of a witness who, while not an accomplice, is "manifestly interested in absolving himself from guilt and putting blame on defendant." Mister v. State , 190 So.2d 869, 870 (Miss. 1966).

¶20. Weighing witness testimony and determining credibility is the province of the jury. Osborne , 54 So.3d at 846. If the evidence justifies a verdict, this Court must accept that the jury found it worthy of belief. Gillett v. State , 56 So.3d 469, 504 (Miss. 2010). Even assuming that Self's and Vaughn's testimony was inconsistent and arguably substantially impeached, the testimony connecting Johnson and Story to the crimes was not uncorroborated. Testimony must be uncorroborated and unreasonable, self-contradictory, or substantially impeached to be insufficient to uphold a conviction. Self's testimony connecting Johnson to the crimes corroborated Vaughn's testimony, and Vaughn's testimony corroborated Self's testimony. Moreover, Vaughn and Self both explained to some extent why they gave prior inconsistent accounts to the police, both testifying that they were scared. See Osborne , 54 So.3d at 846-47 (An accomplice provided inconsistent accounts, but he explained his actions at trial, stating that he was scared for the safety of a family member whom the defendant threatened, and his testimony was reasonable, not substantially impeached, and corroborated.). A cautionary jury instruction was given regarding accomplice testimony. Accordingly, it was for the jury to determine what weight and credibility to give the testimony, because the testimony at issue was sufficient to support the verdicts.

2. Whether the court erred by excluding photographs and juvenile adjudications .

¶21. This Court reviews the admission or exclusion of evidence for abuse of discretion. Newell v. State , 49 So.3d 66, 71 (Miss. 2010). Moreover, this Court only reverses a trial court's evidentiary ruling when the error adversely affects a party's substantial right. Id. Johnson argues that the exclusion of the photographs showing Self holding guns and of Self's juvenile adjudications was detrimental to Johnson's theory of defense.

a. Photographs

¶22. Johnson argues that undated photographs, which appear to be printouts of screenshots from websites, allegedly of Self holding guns are relevant to Self's "lifestyle." The trial court, noting that the photographs were not authenticated, ultimately found that the photographs were not relevant, and were more prejudicial than probative under Rule 403.

¶23. This Court need not examine whether the trial court erred in finding the photographs were not relevant and were more prejudicial than probative. The undated photographs were not authenticated, nor did Johnson attempt any proffer to authenticate them. See Miss. R. Evid. 901. "Authentication is a condition precedent to admissibility." Smith v. State , 136 So.3d 424, 432 (Miss. 2014). Johnson was required to make a prima facie showing of authenticity. Id. He did not do so. Thus, because the photographs were not authenticated, the trial court did not err in excluding them. Id. at 432-35.

b. Juvenile Adjudications

¶24. The trial court refused to allow the defense to cross-examine Self regarding his juvenile adjudications, all of which occurred after November 12, 2013. It found that, since the adjudications occurred after the murders, the adjudications were not necessary to fairly determine the guilt or innocence of the defendants. Johnson argues that he should have been allowed to impeach Self's credibility using these juvenile adjudications. He asserts that the adjudications should have been admitted because Self "was a suspect and had a motive to fabricate." At trial and in its earlier motion to admit the adjudications, the defense merely asserted that the adjudications went to Self's "credibility."

¶25. Rule 609 prohibits the use of juvenile adjudications to impeach a witness (other than the defendant) in a criminal case unless "an adult's conviction for that offense would be admissible to attack the adult's credibility" and "admitting the evidence is necessary to fairly determine guilt or innocence." Miss. R. Evid. 609(d). Impeachment based on juvenile adjudications is generally prohibited due to "the wish to free an adult from bearing the burden of a youthful mistake, the informality of youth court proceedings, and the confidential nature of those proceedings." Miss. R. Evid. 609 cmt. The pre-rules practice regarding using juvenile adjudications for impeachment purposes was provided by Mississippi Code Section 43-21-561, which states that "[e]xcept for the right of a defendant or prosecutor in criminal proceedings ... to cross-examine a witness ... to show bias or interest, no adjudication shall be used for impeachment purposes in any court." Miss. Code Ann. § 43-21-561(5) (Rev. 2015). This Court has held that Section 43-21-561(5) and Rule 609(d)"serve the same purpose, have the same objective, and although worded differently, provide the same general criterion for a trial judge in exercising his discretion to determine" admissibility of juvenile adjudications.

Bass v. State , 597 So.2d 182, 188 (Miss. 1992). Thus, juvenile adjudications may not be used for general impeachment purposes, but may be admissible if they tend to show bias or interest on the part of the witness. Johnson admits that he wanted to use these juvenile adjudications for general impeachment purposes, noting only that the adjudications go to Self's "credibility." This is exactly the type of usage that Rule 609 prohibits. Johnson failed to offer any explanation of what he expected the juvenile adjudications to show, or how the juvenile adjudications would show any bias or interest on the part of Self. See Bass , 597 So.2d at 190-91 (Defense counsel failed to make "any profert of what they expected to show by cross-examining Thompson as to his youth court record, except a generalized statement to show 'bias or interest.' Did they expect to show he had been promised anything to testify? Did they expect to show he wanted to return home from the training school, and thought if he testified for the state he would be shown leniency? None of this was brought to the attention of the circuit judge."). The trial court did not abuse its discretion by excluding Self's juvenile adjudications.

CONCLUSION

¶26. Because the verdicts were not against the overwhelming weight of the evidence, and because the trial court did not abuse its discretion in excluding the photographs and juvenile adjudications, this Court affirms Johnson's convictions.

¶27. AFFIRMED.

RANDOLPH, C.J., KITCHENS, P.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

      Self testified that "check" meant Johnson wanted money.

      The shoebox contained drugs and money belonging to Marshall.

      GSR kits were not performed on Johnson, Story, Hodges, and Vaughn, because they were arrested beyond the time GSR testing would be reliable.

      The defense admitted that "we don't know when he posted these."

      The jury also found Story guilty of conspiracy, two counts of capital murder with firearm enhancement, and kidnapping with firearm enhancement. It found Hodges guilty of conspiracy, and not guilty of capital murder and kidnapping.

      Johnson argues that Self's testimony is unreasonable or improbable because "it is highly unlikely that Stanley did not see the rifle allegedly held by Johnson when Stanley said he let Story and Johnson in Tavoris's house[,]" "it is highly unlikely that the alleged robbers would have shot Kavion Gorman, who was asleep, before they shot Stanley[,]" and it was improbable that Johnson would ask for more ammunition when he had live rounds in each gun. The State counters that, from Johnson asking for ammunition, the jury could reasonably infer that Johnson was attempting to scare Self into silence. It is also a reasonable inference that Self did not see the rifle until he was in the bedroom. It was dark, Story may have entered the residence in front of Johnson, and Self's testimony implies that he walked in front of Story and Johnson into the bedroom, meaning they were behind him and out of his sight. It is also reasonable to infer that Johnson killed Gorman to eliminate any potential witnesses to the crime. While Self's testimony is certainly subject to different inferences and interpretations, it is not unreasonable or implausible.