author: BARNES, J.,

text:
    Steve LACROIX, Appellant, v. MARSHALL COUNTY BOARD OF SUPERVISORS, Eddie Dixon, Keith Taylor, Willie Flemon, George Zinn, Ronnie Joe Bennett, Marshall County Planning Commission, Conway Moore, Steve Wilson, Larry Hall, Kay Brownlee, C.W. “Chuck” Thomas and Susie Hill, Appellees.
    No. 2008-CP-00477-COA.
    Court of Appeals of Mississippi.
    Aug. 18, 2009.
    Rehearing Denied Dec. 8, 2009.
    Certiorari Denied Feb. 25, 2010.

      Steve LaCroix (pro se), appellant.
    Kent E. Smith, Catherine M. Williams, attorneys for appellees.
    Before KING, C.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. Steve LaCroix, appearing pro se, appeals the judgment of the Chancery Court of Marshall County. Finding reversible error only as to the grant of summary judgment on the Mississippi Open Meetings Act claim, we affirm in part and reverse and remand in part.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. This dispute involves what LaCroix, a property owner in Marshall County, believes to be an “ongoing campaign to harass” and “intimidate” him by the Marshall County Board of Supervisors (Board) and various other Marshall County governmental entities, officials, and employees. La-Croix owns a home and several rental properties in Byhalia, Mississippi.

¶ 3. On July 2, 2007, LaCroix appeared before the Board to answer a complaint regarding the property at his home address of 384 River Ridge Circle in Byhalia being “in such a state of uncleanliness as to be a menace to the public health and safety of the community as well as being an eyesore to residents.” The Board had also mailed a letter to LaCroix’s mortgage holder informing it that a possible lien might be placed on LaCroix’s property associated with the cost of cleaning the property. After the meeting, the Board, satisfied with LaCroix’s responses, resolved the matter in his favor and determined that the County would not have to conduct a cleanup of his property. The Board also notified the mortgage holder of this positive outcome. LaCroix admits that the present action does not concern the Board’s actions regarding the unclean property as he has a case pending in the United States district court on this matter. He explains that it provides the background for why he wanted to review certain public records.

¶ 4. Unrelatedly, on July 25, 2007, one of LaCroix’s former tenants informed him that when he tried to renew his automobile tag at the Marshall County Tax Collector’s office that day, he could not because records showed the tenant was delinquent on garbage collection fees at his rental property at 372 River Ridge Road in Byhalia, Mississippi. The record shows the account was set up in the tenant’s, not LaCroix’s, name. LaCroix claims neither he nor the tenant received a notice of delinquency for these fees. The delinquency caused a lien to be placed on the tenant’s automobile tag. That day, the tenant paid the $141.40 in delinquent fees for garbage collection services from September 2006 through July 2007, so he could obtain his tag. LaCroix then inquired about the lien with the County Administrator’s office and demanded his tenant be issued a refund for fees the County “wrongfully collected” from the tenant and to submit to him copies of the unpaid fees so he could pay them. LaCroix claims he was told by Larry Hall, the County Administrator, simply to reimburse his tenant and “all would be settled.” On July 31, 2007, LaCroix alleges that he sent a request to the Board and Hall detailing what documents he wanted copied “relevant to the illegal collection made from LaCroix’s tenant.”

¶ 5. In August 2007, LaCroix claims that “[a]s a result of the harm caused by the Defendant’s notice” to the mortgage holder of LaCroix’s homestead property accusing him of unclean property, he began a series of visits to various county governmental entities in what he claims was an attempt to inspect public records to obtain proof for his mortgage holder that there was no need for a Board hearing about his property. LaCroix also attempted to obtain information about the garbage account at 372 River Ridge Road. LaCroix carried a tape recorder with him and taped his conversations with the various county officials and employees during his visits for public records.

¶ 6. On August 6, 2007, LaCroix appeared at the Marshall County Planning Commission (“Planning Commission”) to copy public records. Before his visit, on August 2, LaCroix faxed a letter to the Planning Commission, stating he was coming on August 6 to “inspect and copy records maintained by your office.” He claimed a list was attached to the letter with eighteen items. During his visit, LaCroix spoke with Steve Wilson, an employee of that office. In the transcription of the conversation, when Wilson asked LaCroix what records he wanted to see, LaCroix responded, “just an abundance of records, miscellaneous. When I review them, I’ll tell you what I need as I need them.” Wilson responded that he did not know if he could authorize that, and he was under the impression the office needed a 30-day notice of specifically identified records.

¶ 7. On August 6, 2007, LaCroix also received a letter from Board attorney Kent Smith, dated August 3, 2007, in response to LaCroix’s faxed August 2, 2007, request, informing LaCroix that because of the impending elections on August 7, 2007, the Planning Commission could not comply with his request to copy and inspect records from August 6, 2007, through August 10, 2007; however, the Planning Commission would comply with LaCroix’s request after August 10, 2007.

¶ 8. Additionally, on August 6, LaCroix also wrote a letter to C.W. Thomas, Clerk for the Board and the Chancery Court, stating that he intended “to review and copy public records maintained by [that] office on August 9, 2007.” LaCroix provided a list of items to inspect in the letter, such as the calendar of Board hearings, handwritten notes regarding the hearing on July 2, 2007, and minutes of certain executive sessions of the Board.

¶ 9. On or about August 7, 2007, LaCroix appeared at the County Administration office pursuant to a letter LaCroix had faxed on August 2, stating his intention to review or copy “all records related to the collection of unpaid garbage fees by your office.” A transcription of the conversation shows when he arrived at this office, LaCroix announced to Kay Brownlee, Assistant County Administrator, that he needed “to look at and copy some files you’ve got” and claimed he faxed her on his request several times. Brownlee explained to LaCroix that the office did not actually perform the garbage fee billing, but R.E.S., the county’s garbage collector, maintained these records. LaCroix also asked to see a notice of delinquency, which he stated state law required. Brownlee instructed La-Croix to speak with the Board’s attorney, Smith. Before leaving, LaCroix requested a printout from a computer, but Brownlee declined, stating it would take “forever” to print.

¶ 10. On August 9, 2007, LaCroix appeared at Chancery Clerk Thomas’s office to inspect and copy records. LaCroix was told that due to the impending elections, it was not feasible to make copies of all of the records he wanted in such a short time. Thomas offered to make the records available at a later time, and LaCroix agreed to return on August 15, 2007.

¶ 11. On August 14, 2007, LaCroix notified Thomas, the Board, and Smith that he required a copy of the records in possession of Thomas that “contained exculpatory evidence” regarding the matter of his homestead property brought before the Board on July 2. LaCroix sent a letter to the Board and Smith of his intentions, stating he would be in Thomas’s office on August 21, 2007, to copy records he had already requested, as well as to receive audio recordings of the Board’s meetings on August 6 and 18, 2007. On August 15, 2007, LaCroix returned to Thomas’s office and later claimed he was provided some, but not all, of the records he had requested; in particular, he was not given the handwritten personal notes of the Board concerning a meeting in August.

¶ 12. On August 20, 2007, LaCroix, appearing pro se, filed suit in the Marshall County Chancery Court against numerous defendants, including the Board; individual supervisors: Eddie Dixon, Keith Taylor, Willie Flemón, George Zinn, and Ronnie Joe Bennett; the Planning Commission; Planning Commission employees Conway Moore and Wilson; County Administrator Hall; Assistant Administrator Brownlee; Susie Hill (employee of the Board); and Chancery Court Clerk Thomas, collectively referred to as “the County.” LaCroix’s tenant was not a party to this action. La-Croix claimed that the County deliberately “embarked on a course of malicious conduct designed to impede [his] access to inspect and copy exculpatory evidence held by their offices as public records” which LaCroix wanted in order to “vindicate [himself] as a result of the malicious prosecution of July 2, 2007.”

¶ 13. LaCroix claimed several causes of action, including: violation of the statute regarding the assessment of garbage fees and related notice of lien codified at Mississippi Code Annotated section 19-5-22 (Rev.2003); violation of the Mississippi Open Meetings Act, because the Board has been and continues to hold “secret meetings under the guise of executive session”; violation of the Mississippi Public Records Act of 1983 for denial of records on three instances: August 6, 2007, at the Planning Commission office; August 8, 2007, at the County Administrator’s office; and August 15, 2007, at the clerk of the chancery court and Board’s office; violation of Mississippi Code Annotated section 97-11-37 (Rev. 2006) for failure of the county officials and employees to perform a required duty; and violation of 42 U.S.C. § 1983 and the Mississippi Constitution for lack of notice of the lien pertaining to the unpaid garbage fees and for all of the above alleged violations. LaCroix complained that the defendants were aware that more than one of his parcels of property were liable for garbage fees but made “a malicious, wrongful and unlawful collection from plaintiffs tenant in order to simplify their duties.” Finally, LaCroix requested punitive damages of $10,000 per violation to be assessed against each defendant individually, statutory fines and penalties imposed individually, and a judgment of $100,000 for the County’s alleged violation of La-Croix’s civil rights.

¶ 14. LaCroix filed a motion for summary judgment, and the County filed a response and a cross-motion for summary judgment. The chancellor issued an opinion on January 10, 2008, granting partial summary judgment to LaCroix regarding his denial of public records on August 15, 2007, for information he requested via the letter on August 6, 2007, pertaining to the Board; and on August 6, 2007, for records he requested from the Planning Commission on August 2, 2007. In the first instance, the court found the denial was willful and knowing, and LaCroix was awarded a civil penalty of $100 against the Board. In the second instance, the court held it was unclear whether this violation was “willful” under the language of the public records’ statute, so the matter was remanded for a hearing regarding any potential relief under Mississippi Code Annotated section 25-61-15 (Rev.2006) and the reasonable expenses incurred by LaCroix. In both instances, the public entities were ordered to produce the records LaCroix requested. Further, the court dismissed LaCroix’s claim of a Public Records Act violation by the Board and County Administrator for his July 31, 2007, request for documents. The chancellor also found: LaCroix failed to demonstrate any damages incurred by the alleged actions of the County with respect to the alleged public records violations already discussed above, his former tenant’s payment of the garbage fees, the Open Meetings Act claim, and the section 1983 claim. Specifically, the chancellor found that there was insufficient evidence to show a violation of the Open Meetings Act, the enforcement of which is pursuant to Mississippi Code Annotated section 25-41-15 (Rev.2006); relief requested under section 97-11-37, a criminal statute, was inapplicable; and LaCroix failed to articulate a constitutional right that was violated when the County collected garbage fees from LaCroix’s tenant and that he faded to show any actual damages for his 42 U.S.C. section 1983 claim. Accordingly, the chancery court found that since LaCroix had failed to demonstrate any compensable harm suffered, the County was entitled to summary judgment against all of LaCroix’s claims with the exception of the two Public Records Act violations of August 6 and August 15, and the relief for them would be granted pursuant to statute.

¶ 15. On January 14, 2008, the chancellor issued a corrected opinion to remove any reference to LaCroix’s related federal actions. Subsequently, LaCroix filed a motion to reconsider the partial summary judgment. In it, LaCroix stated that he now had possession of evidence not available to him when he filed his motion for summary judgment which would prove an Open Meetings Act violation by the Board. LaCroix also noted that the chancellor failed to address his August 2, 2007, request for records and subsequent August 7, 2007, appearance at the County Administrator’s office.

¶ 16. On February 1, 2008, a hearing was held on the specific issues enumerated in the January 10 opinion. The chancellor, ruling from the bench and then issuing a judgment on February 20, 2008, denied LaCroix’s motion to reconsider relating to the Open Meetings Act and section 1988 violations. However, the County was ordered to produce to LaCroix, from R.E.S. or any other sources, all records pertaining to the garbage account at 872 River Ridge Road, the complete history of the establishment of the account and collection efforts, and any notices that were sent about lack of payment of the garbage fee. The court also ordered that: LaCroix pay the bill for reasonable charges for the service and cost of copying the records; the Board and the County Administrator’s office each be assessed a $100 civil penalty for the willful and knowing violation of the Public Records Act; the County pay La-Croix $512.46 for the cost and expenses incurred in bringing the action for violation of the Public Records Act; and La-Croix was ordered to pay the County $206 in satisfaction of its prior bill of $353, representing copy costs and Smith’s time to obtain and compile the records. The court directed the parties to comply with the judgment within two weeks of the February 1, 2008, hearing.

¶ 17. Both parties filed several post-judgment motions. The County filed a motion for contempt against LaCroix, who filed a Mississippi Rule of Civil Procedure 52 motion to alter or amend the judgment. LaCroix also filed a motion for contempt and a motion for sanctions against the County. On March 14, 2008, a hearing was held on the post-judgment motions. The court entered an order on March 24, 2008, memorializing the chancellor’s ruling from the bench. The court dismissed with prejudice LaCroix’s motions to alter or amend judgment, for contempt, and for sanctions, as well as the County’s motion for contempt, which had been withdrawn due to LaCroix’s compliance with the previous court order.

¶ 18. LaCroix filed his notice of appeal on March 17, 2008.

STANDARD OF REVIEW

¶ 19. This Court’s standard of review regarding a chancellor’s determinations is well established. The chancellor’s findings of fact shall not be disturbed on appeal unless the findings are “manifestly wrong, clearly erroneous, or not supported by substantial credible evidence.” City of Picayune v. S. Reg’l Corp., 916 So.2d 510, 518(¶ 22) (Miss.2005) (citing Brown v. Miss. Dep’t of Human Servs., 806 So.2d 1004, 1005(¶ 4) (Miss.2000)). “Where there is substantial evidence to support the chancellor’s findings, this Court is without the authority to disturb the chancellor’s conclusions....” Id. at 518-19(¶ 22) (citing In re Guardianship of Savell v. Renfroe, 876 So.2d 308, 312(¶ 4) (Miss.2004)). While deference is given to the chancellor’s determinations of fact, this Court retains a de novo review of all questions of law. Id. at 519(¶ 23).

¶ 20. This Court also utilizes a de novo standard of review in analyzing the propriety of summary judgments. Stallworth v. Sanford, 921 So.2d 340, 341(¶ 5) (Miss.2006) (citing Davis v. Hoss, 869 So.2d 397, 401(¶ 10) (Miss.2004)). “[T]he ‘pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any,’ properly before the trial court, will be reexamined by this Court to determine if there is any genuine issue of material fact.” Suddith v. Univ. of S. Miss., 977 So.2d 1158, 1166(¶ 6) (Miss.Ct. App.2007) (quoting M.R.C.P. 56(c)). Evidence is reviewed in the light most favorable to the party against whom the motion is made. Stallworth, 921 So.2d at 341(¶ 5). “If there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in his favor.” Id. at 342(¶ 5) (quoting Davis, 869 So.2d at 401(¶ 10)). Of course, the non-moving party’s burden of rebuttal arises “only after the moving party has satisfied its burden of proving that no genuine issue of material fact exists.” Foster v. Noel, 715 So.2d 174, 180(¶ 35) (Miss.1998).

ANALYSIS

1. Mississippi Code Annotated section 19-5-22 (Rev.2003) and 42 U.S.C. § 1983 (2006) Claims

¶ 21. LaCroix argues that the chancellor erred in granting partial summary judgment to the County and dismissing his claims under section 19-5-22 and section 1983. Specifically, LaCroix states that section 19-5-22(4)(a) requires the Board to notify the owner of the property receiving garbage collection of a delinquency before any action is taken, such as imposition of a lien. Because he, as landowner, did not receive a notice or a hearing of this action, LaCroix argues that his constitutional due process rights were violated under section 1983 and the Mississippi Constitution. Also, LaCroix maintains that section 19-5-22(1) makes clear that a tenant shall not be liable for the failure of the property owner to pay the garbage collection fees if these services are a part of the tenant’s lease agreement; therefore, the County violated this statute by wrongfully requesting and accepting the delinquent garbage fees from his tenant.

¶ 22. LaCroix also argues that because the County did not raise any genuine issues of material fact, he is, therefore, entitled to judgment as a matter of law. In reviewing the grant of summary judgment in favor of the Defendants on these claims, we first note the correct burden of proof. Since LaCroix initially moved for summary judgment, it was his, and not the County’s, burden to prove no genuine issue of material fact existed. The burden would shift to the County to rebut LaCroix’s contentions only once he had provided evidence no genuine issue of material fact existed. See Foster, 715 So.2d at 180(¶ 35). Further, once the County filed a cross-motion for summary judgment on these claims in response to LaCroix’s motion for summary judgment, LaCroix retained the burden of persuasion as he ultimately would bear the burden of proof at trial. See Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1355 (Miss.1990) (burden of producing evidence at the summary judgment hearing relates to burden of proof at trial on same issue).

¶ 23. The chancellor found that LaCroix failed to articulate a constitutional right that was impinged upon by the County’s alleged violation of section 19-5-22, and he failed to demonstrate he had suffered any actual damages or compensable harm as a result of the actions of the County. Therefore, partial summary judgment was awarded to the County on LaCroix’s claim.

¶ 24. To state a claim under 42 U.S.C. § 1983 (2006), the plaintiff must allege facts showing that: (1) he has been “deprived of a right ‘secured by the Constitution and the laws’ of the United States, and (2) the deprivation was caused by a person acting ‘under color of state law.” Bass v. Parkwood Hosp., 180 F.3d 234, 241 (5th Cir.1999) (quoting Flagg Bros. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978)). The plaintiff also has the burden of showing that “[tjhere exists a direct casual connection without intervening factors between the deprivation and some injury to the plaintiff[;] ... [t]he act or omission by the defendant was intentional or at least deliberately indifferent to the Constitutional or Federal law rights of the plaintiff[;] ... [t]he plaintiff suffered actual injury[;].... and ... [d]amages as a proximate result of the injury....” Harris v. Miss. Valley State Univ., 873 So.2d 970, 983(¶ 31) (Miss.2004) (internal citations omitted) (emphasis added). A section 1983 action may be brought “to vindicate the federally protected rights of persons injured by the acts of state and local officials.... and can be brought only by the person ... suffering the injury.” David W. Lee, 2007 Handbook of Section 1983 Litigation § 1.02 (2007) (citing Conn v. Gabbert, 526 U.S. 286, 292-93, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999)). “The plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Conn, 526 U.S. at 292-93, 119 S.Ct. 1292 (quoting Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)).

¶ 25. The chancellor found that LaCroix did not prove an injury to himself as required to bring a section 1983 claim, and we agree. The Fourteenth Amendment bars the state from depriving any person of “life, liberty or property, without due process of law.” U.S. Const. amend. XIV. The initial requirement for either a procedural or substantive due process claim is proving the plaintiff has been deprived by the government of a liberty or property interest; otherwise, “no right to due process can accrue.” Pruett v. Dumas, 914 F.Supp. 133, 137 (N.D.Miss.1996). Substantively, LaCroix argues the County’s actions deprived him of the property/economic interest of his tenant’s well-being and rent. The lien, however, was against the tenant, not LaCroix, and La-Croix’s tenant was not a party to this action. While the lien may not have been properly established, the tenant was the person inconvenienced by it, not LaCroix. The tenant had to pay the fees before he obtained his automobile tag. Furthermore, while LaCroix reimbursed his tenant for the amount of delinquency, the amount of delinquency has not been contested as incorrect. It is the imposition of the lien, not the fee, which is contested by LaCroix. Even LaCroix, in his claims before the chancery court, refers to the “illegal collection made from LaCroix’s tenant.” Nor is there any evidence in the record that his tenant ceased renting property from La-Croix as a result of this incident, or any other negative repercussions. We find no error in the chancellor’s granting partial summary judgment in favor of the County on LaCroix’s section 1983 claim regarding violation of section 19-5-22 as it was LaCroix’s tenant, and not LaCroix, who sustained any alleged injury.

2. Mississippi Open Meetings Act Claim

¶ 26. LaCroix alleges in his complaint that the Board held “secret meetings under the guise of executive session.” La-Croix contends the clerk of the Board, Thomas, willingly participated in these meetings and did not properly record the minutes while the Board was in executive session. He concludes that since there were “no final minutes of executive sessions” of the Board, this is the “proof’ that the Board is in violation of the Act. The chancellor, however, found there was insufficient evidence to show a violation of the Open Meetings Act and granted summary judgment in favor of the County on this claim.

¶ 27. Regarding minutes, the Open Meetings Act states in part:

Minutes shall be kept of all meetings of a public body, whether in open or executive session, showing the members present and absent; the date, time and place of the meeting; an accurate recording of any final actions taken at such meeting; and a record, by individual member, of any votes taken; and any other information that the public body requests be included or reflected in the minutes. The minutes shall be recorded within a reasonable time not to exceed thirty (30) days after recess or adjournment and shall be open to public inspection during regular business hours.

Miss.Code Ann. § 25-41-11(1) (Rev.2006) (emphasis added). A public body may enter into executive session for a variety of reasons. See Miss.Code Ann. § 25-41-7(4) (Rev.2006).

¶ 28. LaCroix contends that the Board is improperly operating “closed door sessions ... to discuss public business out of sight and sound of the public” and does not keep minutes of these sessions. We interpret LaCroix as making two separate Open Meetings Act claims: the minutes do not properly support the reason for entering into executive session, and the minutes of the executive session are insufficient.

¶ 29. As to the first claim, LaCroix quotes the following from Hinds County Board of Supervisors v. Common Cause of Mississippi, 551 So.2d 107, 111-12 (Miss.1989):

The reason given [for going into executive session], of course, must be meaningful. It must be more than some generalized term which in reality tells the public nothing. To simply say, “personnel matters,” or “litigation,” tells nothing. The reason stated must be of sufficient specificity to inform those present that there is in reality a specific, discrete matter or area which the board had determined should be discussed in executive session.
The board should not be required to give the reason for going into executive session in such detail as to defeat the very purpose of going into executive session. At the same time, it must, as above noted, disclose enough so that the audience can know in fact that there is some specific area of matter that the board has wisely concluded should, for the time being, be discussed in private.

¶ 30. From our de novo review of the record, we find a one-page exhibit to LaCroix’s motion for summary judgment where the Board, on May 7, 2007, called an executive session and gave the reason merely as “to discuss personnel and pending litigation.” According to our supreme court’s instruction in Common Cause, this would appear to be an insufficient explanation for calling an executive session. The County has failed to respond to LaCroix’s argument or citation of Common Cause. Accordingly, we reverse the grant of summary judgment on this first claim and remand for further proceedings in the chancery court.

¶ 31. As to the second claim, we find no evidence in the record that the Board is violating the Open Meetings Act by not taking minutes in executive session as required by statute. The only evidence that LaCroix offers on this claim is Thomas’s interrogatory discovery responses. There, Thomas stated that he keeps the minutes of the Board’s meetings, and “if necessary,” he keeps the minutes of the executive sessions. Additionally, the Board’s attorney reviews the minutes for accuracy. Thomas also later reiterated that if “board action is taken during executive session, the minutes are taken.” We do not find these responses indicate a violation of the Open Meetings Act, or that Thomas did not take minutes during executive session when legally mandated, as LaCroix argues. Section 25-41-11(1) requires the Board’s minutes to reflect certain basic information (members present, date, time, and place of meeting) or record “any final actions taken” and record, by member, “any vote taken.” Unless final actions or votes are taken during executive session, no minutes are required unless “the public body requests [it] be included.” We agree with the chancellor that LaCroix has failed to supply any proof as to a violation on this second claim. Accordingly, we affirm in part and reverse and remand in part as to LaCroix’s Open Meetings Act claim.

3. Mississippi Public Records Act Claim

¶ 32. LaCroix was successful with respect to two of his Public Records Act claims; on appeal, he only takes issue with the outcome of one: his August 2, 2007, request for his August 6, 2007, visit to the Planning Commission. The chancellor ruled that the Planning Commission’s response to LaCroix’s request was a violation of the Public Records Act, but it was not willful; therefore, a civil penalty was not assessed. LaCroix argues, however, that the Planning Commission purposefully “intended to delay or prevent inspection” of the public records he requested and should be fined accordingly.

¶ 33. The pertinent part of the Public Records Act regarding access to records states:

[A]ny person shall have the right to inspect, copy or mechanically reproduce or obtain a reproduction of any public record of a public body in accordance with reasonable written procedures adopted by the public body concerning the cost, time, place and method of access, and public notice of the procedures shall be given by the public body, or, in the event that a public body has not adopted such written procedures, the right to inspect, copy or mechanically reproduce or obtain a reproduction of a public record of the public body shall be provided tuithin one (1) working day after a written request for a public record is made. No public body shall adopt procedures which will authorize the public body to produce or deny production of a public record later than fourteen (14) working days from the date of request for the production of such record.

Miss.Code Ann. § 25-61-5(1) (Rev.2006) (emphasis added). During the time pertinent to this case, the County had not yet adopted written procedures concerning the method of access to public records. Accordingly, the section 25-61-5 one-day right of access was applicable. As the penalty for violating the Act, “[a]ny person who shall willfully and knowingly deny to any person access to any public record which is not exempt from the provisions of this chapter shall be liable civilly in a sum not to exceed One Hundred Dollars ($100.00), plus all reasonable expenses incurred by such person bringing the lawsuit.” Miss.Code Ann. § 25-61-15 (emphasis added).

¶ 34. On August 2, 2007, LaCroix advised the Planning Committee that he “wish[ed] to inspect and copy records maintained by [that] office” on August 6. When LaCroix, armed with his tape recorder, visited the Planning Commission to obtain the records on August 6, 2007, he spoke with Wilson, a code enforcement officer. Wilson stated he did not think he could authorize LaCroix’s request as it was “going way over [his] head”; Wilson was under the mistaken impression he had thirty days to comply with the request. Additionally, on August 6, but after his visit to the Planning Commission, LaCroix received a letter from the Board’s attorney, Smith, dated August 3, 2007, in response to LaCroix’s August 2, 2007, request. The letter explained that the Planning Commission could not comply with LaCroix’s request to copy records on August 6 as there were impending elections on August 7, 2007. However, the Planning Commission told LaCroix it would accommodate his request after August 10, 2007, but before August 22, 2007. Smith was under the admittedly mistaken belief that the Planning Commission had fourteen working days from the date of LaCroix’s request to comply, or until August 22, 2007, instead of one day as required by law.

¶ 35. In his January 10, 2008, opinion, the chancellor found that the Planning Commission’s response to LaCroix’s August 6 visit was a violation of the Public Records Act, but he remanded the issue for a hearing on the willfulness of the violation. At the hearing, the chancellor heard testimony from LaCroix; Moore, the Planning Commission manager; and Wilson regarding this issue. Moore testified that the office was short handed on August 6 as she had previously scheduled a vacation day since she was a candidate in the August 7 election. Further, the primary clerk normally in the office, Eloise Finley, had an emergency with her child on the morning of August 6 and did not arrive until after LaCroix’s visit. Wilson, a code enforcement officer, testified he was just “filling in that day” in the office and was not familiar with what to do when someone did not request a specific record, but instead wanted to search the public records generally. LaCroix contends that he sent a list of eighteen items he wished to see; Moore, however, testified that she received only one page without any attachment identifying particular documents. The transcript of LaCroix’s encounter with Wilson reveals that in response to Wilson’s question as to what records LaCroix wanted to see, LaCroix at first responded, “It’s just an abundance of records, miscellaneous. When I review them, I’ll tell you what I need as I need them.” Thereafter, he apparently showed Wilson the list of the eighteen categories of documents at which time Wilson stated that he could not authorize access to the records and recommended LaCroix speak with the Board’s attorney. Wilson asked for a copy of the list and said he needed to “check into it a little bit to see.”

¶ 36. In making his ruling that there was no “willful violation,” the chancellor noted that while “[t]his Court takes strong belief in the Public Records Act, this case exemplified a tremendous amount of effort over a small thing ... [that] should have been long ago resolved. There’s a lot of litigation here.” The chancellor found the violations “minimal in nature”; there was no “great intent to deprive [LaCroix] of anything. It was just a great intent to find a more convenient date and time.” LaCroix admitted that there were no requested public records he had not received by the date of the hearing.

¶ 37. LaCroix argues that the evidence shows the violation was willful and the chancellor’s ruling was “plain error” as it creates an exception to the Act — the reasons he was denied the records were mere excuses which are not valid under the Act. We reject this argument. The element of “willfulness” only pertains to assessment of possible civil penalties, not the actual violation. No exception to a Public Records Act violation could occur, since there is no “willfulness” element regarding the violation itself. See Miss.Code Ann. § 25-61-5 and -15. The County, in its brief, admitted that it had no policy in place regarding public-record requests at this time; but it denied any willful intent. It maintained that Smith’s letter was not a complete denial, but a delay. We affirm the chancellor’s finding that the record does not support a willful denial of access to records by the Planning Commission so as to justify imposition of a civil penalty.

4. LaCroix’s Motion for Sanctions

¶ 38. LaCroix claims that the chancellor erred in denying his motion for sanctions against the County. LaCroix’s motion was in response to the County’s motion for contempt, which was ultimately withdrawn, for LaCroix’s failure to remit payment for compilation and copying of his public-records request. At the February 1, 2008, hearing, the chancellor ordered the County to provide the records to La-Croix within two weeks. The chancellor had also ordered LaCroix be sent a bill for “the services and cost for copying” the records, and ordered LaCroix to pay the bill in compliance with the Public Records Act, “if it’s a reasonable bill.” The February 20, 2008, final judgment also ordered LaCroix to pay the County “within two weeks,” $206 in satisfaction of the County’s bill of $353, which represented the cost of the copies and 4.2 hours of research at $15 per hour, reduced from $50 per hour. La-Croix admitted he did not pay the County’s bill, as he deemed it “unreasonable.” He claimed “attorney fees” had been charged in the guise of “research.” La-Croix filed his motion for sanctions against the County on March 6, 2008. A hearing was held on March 14, 2008, on the numerous post-judgment and related motions filed by the parties, where the County withdrew its motion for contempt. La-Croix explained that he interpreted the judgment as stating he had two weeks from February 20 to pay the bill; he complied; and the County’s motion for contempt was premature. The County argued that the chancellor’s ruling from the bench was clear — LaCroix had two weeks from the February 1 hearing to pay the bill. However, since LaCroix, by the March 2008 hearing, had paid the bill, the County withdrew its motion for contempt. LaCroix, however, did not withdraw his motion for sanctions.

¶ 39. In his motion, LaCroix contended that the County’s motion for contempt was without evidentiary support and burdensome, because Smith’s bill for “unauthorized attorney fees” was deceitful and fraudulent, therefore, in violation of Mississippi Rule of Civil Procedure 11 and the Litigation Accountability Act, Mississippi Code Annotated section 11-55-5 (Rev.2002). Rule 11(b) states that “[i]f any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay,” the court may order the party, or his attorney, or both, to pay the opposing party reasonable expenses including attorneys’ fees. M.R.C.P. 11(b). Section 11-55-5(1) allows for reasonable attorneys’ fees and costs if a party brings a motion “that is without substantial justification.” The chancellor, finding that sanctions were not warranted, stated that both parties had “filed mountains of pleadings ... that overlap each other.” He denied LaCroix’s motion for sanctions and found any damages under the Litigation Accountability Act were unwarranted.

¶ 40. We find no error with the chancellor’s ruling. While the chancellor had ordered LaCroix to pay the County’s fees for producing the records, it was unclear whether LaCroix was to pay the bill within twenty days of the hearing or the final judgment. However, once LaCroix paid the fees and the County withdrew its motion, the issue became moot. From our review of the record, we cannot find that the chancellor erred in concluding that sanctions under neither Rule 11 nor the Litigation Accountability Act were warranted.

CONCLUSION

¶ 41. The chancellor did not err in granting partial summary judgment to the County in dismissing LaCroix’s claims under Mississippi Code Annotated section 19-5-22 and 42 U.S.C. § 1983. Further, we find no error in the chancellor’s finding of no willful violation of the Public Records Act regarding the acts of the Planning Commission. The chancellor did not abuse his discretion in denying LaCroix’s motion for sanctions. Regarding the Open Meetings Act issue, we reverse the grant of summary judgment as to the first claim of explaining the reason for going into executive session and remand for further proceedings in the chancery court.

¶ 42. THE JUDGMENT OF THE CHANCERY COURT OF MARSHALL COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY TO THE APPELLANT AND THE APPELLEES.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . LaCroix claims that the Board’s issue was not actually about his unclean property at this address, but was to force his appearance before the Board to confront him about an un-permitted storage building he had placed on another lot.

      . The record contains correspondence from LaCroix to the County in December 2005 and January 2006 attempting to insure that all bills for garbage collection at all of LaCroix's rental properties went to his home address and not to the tenants’ addresses. LaCroix claims he again wrote the County Administrator in September 2006 that all bills for garbage collection at four of his rental property addresses be mailed to his home address to insure timely payment. However, the record also reflects that the account with the County's garbage collector, Resourceful Environmental Services, Inc. (R.E.S.), was actually set up by the tenant in his name. Details on how this account came to be established in the tenant’s name are not properly in the record; the affidavit of a garbage collection agency employee explaining in detail how the account was set up was not designated as part of the record but was attached by LaCroix as part of his purported "record excerpts.” Neither party attempted to supplement the record pursuant to Mississippi Rule of Appellate Procedure 10(e). Accordingly, we cannot consider it. Davis v. Christian Brotherhood Homes of Jackson, Miss., Inc., 957 So.2d 390, 398(¶ 15) (Miss.Ct.App.2007) (court cannot consider matter placed in "record excerpts” that is not, in fact, a part of the record on appeal).

      . LaCroix stated he immediately reimbursed his tenant for the amount the tenant paid the County in delinquent garbage fees. LaCroix's lease agreements provide that the garbage collection fees are included in his tenants' rent, and he remits payment to the County.

      . The Planning Commission denied LaCroix identified specific records in his request; it claims the office received only the one-page letter. LaCroix included the list in the record before this Court. The list includes items such as "all building permits since 2001,” "money receipts” since January 2007, “property inspection reports since 2001,” and "emails sent and received.”

      .Smith was apparently under the mistaken impression that the County had fourteen days to comply with LaCroix’s request.

      . At the time, Thomas wrote a letter to LaCroix stating he did not believe these were considered public records, but he was seeking an Attorney General's Office opinion to clarify this matter. It was later determined the handwritten notes which were used to compose the minutes of the Board's meeting were considered "public records.”

      . LaCroix specifically claims the Board enters into executive session to discuss public business and then illegally fails to enter it into the public record. LaCroix furnished this "supplemental discovery” in his record excerpts, but as it was not included in the record before the chancery court, we cannot consider it. Davis, 957 So.2d at 398(¶ 15).

      . The chancellor realized at this hearing that he had not ruled on LaCroix's August 7, 2007, records request to the County Administrator’s office and found the denial willful. The court, however, found the August 6, 2007, denial of access to public records by the Planning Commission was not willful.

      .The County billed LaCroix for 4.2 hours at $50 per hour for copy charges and time for obtaining the copies from R.E.S. and producing them. The court later reduced this second charge to $15 per hour.

      . LaCroix raises five issues on appeal, but for judicial economy we shall discuss his first and second issue together.

      . The statute reads in pertinent part:
      (1) Fees for garbage or rubbish collection or disposal shall be assessed jointly and severally against the generator of the garbage or rubbish and against the owner of the property furnished the service. Any person who pays, as a part of a rental or lease agreement, an amount for garbage or rubbish collection or disposal services shall not be held liable upon the failure of the property owner to pay those fees.
      (2) Every generator assessed the fees authorized by Section 19-5-21 and the owner of the property occupied by that generator shall be jointly and severally liable for the fees. The fees shall be a lien upon the real property offered garbage or rubbish collection or disposal service.... The county shall mail a notice of the lien, including the amount of unpaid fees and a description of the property subject to the lien, to the owner of the property.

      (4)(a) The board of supervisors may notify the tax collector of any unpaid fees assessed under Section 19-5-21 within ninety (90) days after the fees are due. Before notifying the tax collector, the board of supervisors shall provide notice of the delinquency to the person who owes the delinquent fees and shall afford an opportunity for a hearing, that complies with the due process protections the board deems necessary, consistent with the Constitutions of the United States and the State of Mississippi....
      (b) Upon receipt of a delinquency notice, the tax collector shall not issue or renew a motor vehicle road and bridge privilege license for any motor vehicle owned by a person who is delinquent in the payment of fees unless those fees in addition to any other taxes or fees assessed against the motor vehicle are paid. Payment of all delinquent garbage fees shall be deemed a condition of receiving a motor vehicle road and privilege license tag.

        Miss.Code Ann. § 19-5-22(1), (2), and (4)(a)-(b) (Rev.2003) (emphasis added).

      . We reject the chancellor’s conclusion that LaCroix failed to articulate a constitutional right. Section 19-5-22 itself requires protections that comply with due process. From our review of LaCroix's pro se pleadings and briefs, it is apparent he claims a violation of the Due Process Clause of the United States Constitution. We further reject the chancellor’s position that LaCroix's claim is procedurally improper as it is not an appeal from the Board's action pursuant to Mississippi Code Annotated section 11-51-75 (Rev.2002), which allows a person aggrieved from “a judgment or decision of the board of supervisors” to appeal within ten days from the decision through filing a "bill of exceptions,” which will be transferred to the circuit court. LaCroix’s claim is that the Board failed to take any action as required by statute; accordingly, there was no action from which he could "appeal” under section 11-51-75.

      . In LaCroix’s letter to one of the supervisors on July 27, 2007, LaCroix referred to "a lien against a former tenant of one of my properties.” This letter indicates that La-Croix no longer had a landlord/tenant relationship with this particular individual at the time.

      . Section 25-41-15 states that chancery courts have authority to enforce provisions of the Open Meetings Act "upon application of any citizen of the state, and shall have the authority to issue injunctions or writs of mandamus to accomplish that purpose. If the court finds that a public body has willfully and knowingly violated the provisions of this chapter, the court may impose a civil penalty upon the public body in a sum not to exceed” $100 plus all reasonable expenses incurred to bring suit to enforce the Act.

      . A copy of the County's motion for contempt is included in LaCroix's purported “record excepts,” but it is not in the record. We note the motion is dated February 22, 2008, but there is no entry in the official chancery court docket reflecting the filing of the motion.


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    Wendell DUNCAN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CP-01115-COA.
    Court of Appeals of Mississippi.
    Sept. 15, 2009.
    Rehearing Denied Dec. 15, 2009.
    Certiorari Denied Feb. 25, 2010.

      Wendell Duncan, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On November 30, 1994, Wendell Duncan was convicted by a jury in the Washington County Circuit Court of conspiracy and burglary of a business. Duncan was sentenced to serve five years for the conspiracy count and seven years for the burglary-of-a-business count. The sentences were ordered to run consecutively for a total of twelve years and to be served in the custody of the Mississippi Department of Corrections (MDOC). Duncan was also convicted of armed robbery and sentenced to serve thirty years in the custody of the MDOC. Duncan filed his first motion for post-conviction relief in early 1996. On July 29, 1996, the trial court dismissed Duncan’s motion for post-conviction relief. The trial court’s judgment was affirmed by the Mississippi Supreme Court on June 11, 1998. The opinion’s supreme court docket number is 96-CA-01017-SCT, but the opinion is listed as not designated for publication.

¶ 2. Beginning in early 2005, Duncan began filing numerous motions and other documents with both the trial court and the supreme court. These motions included motions for “de novo review,” motions for writ of mandamus, motions to compel, and motions to reconsider. At one point, the supreme court sanctioned Duncan for frivolous filings.

¶ 3. On January 3, 2008, Duncan filed a motion to vacate his convictions and sentences. The trial court dismissed Duncan’s motion for relief, which it treated as a motion for post-conviction relief, as time-barred and successive-writ barred. Duncan now appeals, asserting that he was innocent of the crimes charged. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 4. A trial court’s dismissal of a motion for post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Williams v. State, 872 So.2d 711, 712(¶ 2) (Miss.Ct.App.2004). However, when issues of law are raised, the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

DISCUSSION

¶ 5. Duncan argues that his twelve-year sentence for conspiracy and burglary of a business was unlawful. However, it appears that Duncan filed his second motion for post-conviction relief on January 3, 2008, well after his twelve-year sentence had been served.

¶6. Regardless of the time bar, under Mississippi Code Annotated section 99-39-23(6) (Supp.2008), successive petitions are barred if the prisoner has filed a previous post-conviction-relief motion. However, section 99-39-23(6) lists several exceptions to overcome the successive-writ bar. Duncan’s first motion for post-conviction relief was filed in early 1996, and it was found by the supreme court, on appeal, to be without merit. Duncan’s second motion for post-conviction relief was filed on January 3, 2008; thus, it was a successive writ. Furthermore, Duncan has failed to point to any exception to overcome the successive-writ bar. This issue is without merit.

¶7. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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


author: MYERS, P.J.,

text:
    Jon Kurrie PETERSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CP-01438-COA.
    Court of Appeals of Mississippi.
    Sept. 29, 2009.
    Rehearing Denied Dec. 15, 2009.
    Certiorari Denied Feb. 25, 2010.
    Jon Kurrie Peterson (Pro Se).

      Office of the Attorney General by W. Glenn Watts, for Appellee.
    Before MYERS, P.J., ISHEE AND MAXWELL, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Jon Kurrie Peterson filed a pro se “Motion to Vacate Judgment and Sentence or in the Alternative Motion for New Trial with Brief in Support” in the Circuit Court of Harrison County on April 22, 2008. The circuit court took Peterson’s motion as one for post-conviction relief and dismissed it for want of jurisdiction, citing Mississippi Code Annotated section 99-39-7 (Rev.2007), which requires that a prisoner, whose conviction and sentence have been affirmed on appeal, must seek leave of the supreme court before filing a motion for post-conviction relief in the trial court. Peterson now appeals that judgment, asserting numerous errors. Finding no error, we affirm.

FACTS

¶ 2. Peterson was convicted of murder and arson on April 19, 1996. His conviction was appealed to the supreme court, and this court affirmed it on March 9, 1999. Peterson v. State, 740 So.2d 940 (Miss.Ct.App.1999). Since then, Peterson apparently sought post-conviction relief in the trial court, which was dismissed for failure to secure leave of the supreme court. He then sought leave of the supreme court, under cause number 2002-M-01410, which was denied. In 2008, Peterson again sought leave, this time under cause number 2008-M-01322, but it was again denied.

¶ 3. Undeterred by the supreme court’s refusal to grant him permission to do so, Peterson filed the instant motion in the trial court, which was dismissed for want of jurisdiction.

DISCUSSION

¶ 4. Mississippi Code Annotated section 99-39-7 states in pertinent part:

[A motion seeking post-conviction relief] shall be filed as an original civil action in the trial court, except in cases in which the prisoner’s conviction and sentence have been appealed to the supreme court of Mississippi and there affirmed or the appeal dismissed. Where the conviction and sentence have been affirmed on appeal or the appeal has been dismissed, the motion under this article shall not be filed in the trial court until the motion shall have first been presented to a quorum of the justices of the supreme court of Mississippi, convened for said purpose either in term-time or in vacation, and an order granted allowing the filing of such motion in the trial court.

A prisoner whose conviction and sentence have been affirmed on appeal must therefore seek leave of the supreme court to proceed on post-conviction relief in the trial court. Absent such permission, the trial court is without jurisdiction to hear a motion for post-conviction relief. Perry v. State, 759 So.2d 1269, 1270(¶ 6) (Miss.Ct.App.2000).

¶ 5. It is clear from the record that the trial court properly took Peterson’s “Motion to Vacate Judgment and Sentence or in the Alternative Motion for New Trial with Brief in Support” as a motion for post-conviction relief. As Peterson did not secure leave of the supreme court to proceed in the trial court, the trial court was without jurisdiction to entertain Peterson’s motion, and the trial court properly dismissed it for that reason.

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

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

      . We note that the supreme court warned Peterson that he might be subject to sanctions under Mississippi Rule of Appellate Procedure 22(a) if he persisted in filing frivolous motions before that court.


author: IRVING, J.,

text:
    Margie Edna Galloway Mallett WILSON, Appellant, v. Byron Keith MALLETT, Appellee.
    No. 2008-CA-01196-COA.
    Court of Appeals of Mississippi.
    Oct. 6, 2009.
    Rehearing Denied Dec. 15, 2009.
    Certiorari Denied Feb. 25, 2010.
    H.R. Garner, attorney for appellant.
    Steven G. Roberts, attorney for appel-lee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. Margie Edna Galloway Mallett Wilson appeals the DeSoto County Chancery Court’s entry of an agreed order reached by Wilson and her former husband, Byron Keith Mallett, regarding custody and child support for their minor child, Byron Keith Mallett Jr. Finding that we lack jurisdiction, we dismiss this appeal.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 2. An agreed order was entered in this case on July 2, 2008. Shortly thereafter, on July 7, 2008, Wilson filed a motion to set aside the judgment pursuant to Rule 59 of the Mississippi Rules of Civil Procedure. Then, the following day, Wilson filed a motion for an emergency hearing; however, before the chancellor could rule on Wilson’s motions, she filed a notice of appeal in the DeSoto County Chancery Court.

¶ 3. It is well settled that:

If any party files a timely motion of a type specified immediately below[,] the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding. This provision applies to a timely motion ... under Rule 59 to alter or amend the judgment ... or ... for relief under Rule 60 if the motion is filed no later than 10 days after the entry of judgment. A notice of appeal filed after announcement or entry of the judgment but before disposition of any of the above motions is ineffective to appeal from the judgment or order, or part thereof, specified in the notice of appeal, until the entry of the order disposing of the last such motion outstanding.

M.R.A.P. 4(d). Accordingly, because Wilson filed a motion to set aside the agreed order, it was no longer a final judgment.

¶ 4. We note that Mallett did not raise the issue of lack of jurisdiction. Nevertheless, the law is clear in this state that “[wjhether raised by the parties or not, this Court is required to note its own lack of jurisdiction.” Michael v. Michael, 650 So.2d 469, 471 (Miss.1995) (citing Common Cause of Miss. v. Smith, 548 So.2d 412, 414 (Miss.1989)).

f 5. We conclude that Wilson’s appeal was premature and is dismissed for lack of appellate jurisdiction.

¶ 6. THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Edward Darrell MOORMAN, Appellant, v. Rebecca Jane Waldo MOORMAN, Appellee.
    No. 2008-CA-01723-COA.
    Court of Appeals of Mississippi.
    Nov. 10, 2009.
    Rehearing Denied Feb. 9, 2010.

      John G. Holaday, Matthew Daniel Wilson, Starkville, attorneys for appellant.
    James David Moore, Tupelo, attorney for appellee.
    Before LEE, P.J., CARLTON and MAXWELL, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Edward Darrell Moorman and Rebecca Jane Waldo Moorman were married on August 21, 1999. Edward and Rebecca had two sons, with one child born on June 15, 2000, and the other born on December 20, 2001. Edward also had custody of his three sons from a prior marriage. Rebecca filed a petition for divorce in the Ponto-toc County Chancery Court on January 23, 2003. On February 6, 2003, the chancellor entered a temporary agreed order giving custody of the minor children to Edward. Edward and Rebecca subsequently reeon-ciled for a brief period. The temporary agreed order was never rescinded.

¶ 2. On January 16, 2004, Edward filed a petition for divorce, alleging adultery and habitual cruel and inhuman treatment. In the alternative, Edward alleged irreconcilable differences. Ultimately, Edward withdrew his fault grounds for divorce, and the parties entered into a joint consent to divorce on the ground of irreconcilable differences. After a hearing, the chancellor awarded temporary physical custody of the children to Rebecca, beginning on March 15, 2004.

¶ 3. After numerous continuances, a trial on the matter was held in January 2008 and continued until April 10, 2008. At that time, the chancellor entered a bench ruling awarding permanent custody of the minor children to Rebecca. An order incorporating the chancellor’s bench opinion was entered on August 13, 2008.

¶ 4. Edward now appeals, asserting that the chancellor erred in separating the minor children from their three older half-brothers without addressing any unusual and compelling circumstances. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 5. The standard of review in child custody cases is quite limited, and in order to reverse the chancellor’s findings, the chancellor must be manifestly wrong, clearly erroneous, or have applied an erroneous legal standard. Hensarling v. Hensarling, 824 So.2d 583, 586(¶ 7) (Miss.2002).

DISCUSSION

¶ 6. In his only issue on appeal, Edward argues that the chancellor erred in failing to address any unusual and compelling circumstances to warrant the separation of the minor children from their half-brothers. Edward relies upon Sparkman v. Sparkman, 441 So.2d 1361 (Miss.1983), to support his position that the chancellor did not act in the best interests of the minor children in separating them from their half-brothers. In the Sparkman case, the chancellor separated a brother and a sister. Id at 1362. The supreme court reversed, finding that the chancellor failed to address any special circumstances necessitating the separation of the children. Id. at 1363.

¶ 7. Edward contends that the chancellor’s failure to specifically address the situation constitutes reversible error. The chancellor referenced the Sparkman opinion in his decision, but he never fully addressed the case. Edward would have this Court require chancellors to specifically address the issue of sibling separation in their rulings much like chancellors are required to address the Albright factors. We decline the invitation to do so. See C.A.M.F. v. J.B.M., 972 So.2d 656, 661 (¶¶ 20-23) (Miss.Ct.App.2007). The separation of siblings is not a separate Albright factor but one factor “which the chancellor may consider along with the best interest of the child.” Id. This Court in Sumrall v. Sumrall, 970 So.2d 254, 259(¶ 22) (Miss.Ct.App.2007), noted that there was substantial evidence produced at trial that two half-brothers were close and “to separate them would be harmful, difficult, and not in their best interests.”

¶ 8. In the case at bar, the chancellor did consider the separation of the half-brothers to a limited extent. The chancellor, noting that the custody of the three half-brothers was not before the court, allowed one of Edward’s older sons to testify as to his relationship with his younger half-brothers. The chancellor also noted the guardian ad litem’s concerns in separating the boys. However, the guardian ad litem gave a detailed report justifying her recommendation that Rebecca retain custody of the minor children. The chancellor gave an extensive bench opinion wherein he thoroughly reviewed the Albright factors and determined that it was in the best interests of the minor children to remain with Rebecca. We can find no error in his decision.

¶ 9. Edward also contends that the chancellor erred in failing to consider the half-brothers in creating a visitation schedule. However, the brothers will see each other during Edward’s visitations. Furthermore, the supreme court has deemed court-ordered visitation between half-siblings a matter for the Legislature and has invited the Legislature to expand the rights set forth to siblings. Scruggs v. Saterfiel, 693 So.2d 924, 926 (Miss.1997). We find no merit to this assignment of error.

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

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

      . Albright v. Albright, 437 So.2d 1003 (Miss.1983).


text:
    Juanita DAY, Appellant v. Richard Scott DAY, Jr., Appellee.
    No. 2008-CA-01296-COA.
    Court of Appeals of Mississippi.
    Feb. 9, 2010.

      Thomas T. Buchanan, John D. Small-wood, attorneys for appellant.
    Richard Scott Day, Jr., Appellee, pro se.
    Before MYERS, P.J., GRIFFIS and CARLTON, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Richard and Juanita Day were married on December 28, 1985, in Sunbury, Ohio. Two children were born to the marriage. Richard and Juanita were subsequently granted an irreconcilable differences divorce on July 10, 2008, in Lamar County, Mississippi. The parties executed a written property settlement agreement pursuant to the divorce, which was approved by the chancery court. Following the divorce, both parties ultimately returned to Ohio.

¶ 2. On July 6, 2005, approximately two years after the divorce was entered, Juanita filed a complaint for contempt, alleging that Richard had violated the terms of the property settlement agreement. On December 1, 2005, Richard responded with his own complaint for contempt. Trial on the complaints was begun on December 14, 2006, but the matter was continued to allow Juanita to file an amended complaint. On November 27, 2007, the trial resumed, and it was ultimately concluded on February 22, 2008. On May 9, 2008, the chancery court entered a judgment, and on July 3, 2008, it entered a judgment on reconsideration. Juanita appeals from this judgment.

¶ 3. The parties raised numerous issues at trial that were subsequently ruled upon by the chancery court, but only three are relevant for the purposes of this appeal. Juanita alleges that the chancellor erred: (1) in determining the equity Juanita should receive from the former marital residence pursuant to the property settlement agreement; (2) in determining the equity Juanita should receive from a 2000-model Coachman recreational vehicle (the RV) pursuant to the same agreement; and (3) in denying Juanita’s request for attorney’s fees.

STANDARD OF REVIEW

¶ 4. Appellate review of domestic relation matters is limited. Carrow v. Carrow, 741 So.2d 200, 202(¶ 9) (Miss.1999). We will not reverse unless the chancellor abused his discretion, was manifestly in error, or applied an erroneous legal standard. Id. (citation omitted). This is especially true when dealing with divorce, alimony, or child support. Sumrall v. Munguia, 757 So.2d 279, 282(¶ 12) (Miss.2000).

DISCUSSION

1. Distribution of Equity in the Marital Home

¶ 5. The property settlement agreement provided that Juanita would receive the sole use and possession of the marital home following the divorce. Richard was to be responsible for all continuing expenses of the home, including the mortgage, insurance, utilities, and the like. The agreement also provided that Richard would immediately refinance the home, placing the mortgage in his name only, and pay $40,000 of the equity to Juanita. Title to the home would remain in both parties’ names.

¶ 6. Once Juanita vacated the marital home, the property settlement agreement provided that it would be listed for sale; upon sale, Richard would receive $30,000 of the proceeds after expenses, and Juanita would receive $10,000. Any remaining proceeds would be divided equally.

¶ 7. The property settlement agreement also provided that if the home had not sold within twenty-four months of the date of the final judgment of divorce, it would be appraised “by a mutually agreeable appraiser.” Richard would then buy Juanita’s remaining equity in the property, to be determined by equally dividing the difference of the present appraised value of the home and the debt existing prior to refinancing in 2003, “with a credit given for the $40,000 already disbursed to [Juanita]....”

¶ 8. Following the divorce, Richard refinanced the marital home and paid Juanita $40,000 of the equity, as provided for by the agreement. It is uncontroverted that the home was not sold within twenty-four months; Juanita continued to reside in it for approximately three years and two months after the divorce was entered.

¶ 9. Richard testified that he had attempted to have the home appraised in June or July 2005, but Juanita would not allow him access for an appraisal until he effected certain repairs to the home. Juanita secured her own appraisal on May 25, 2006, which valued the property at $260,000. Juanita vacated the home in September 2006, and it was ultimately sold for $225,000 in March 2007. After the payoff of the mortgage and the expenses of the sale, approximately $36,000 of the proceeds remained.

¶ 10. The chancellor acknowledged that the property settlement agreement stated that, if the home was not sold within twenty-four months, it would be appraised, and Richard would purchase Juanita’s remaining equity. The chancellor nonetheless concluded that because of “[Juanita’s] failure to cooperate in a timely appraisal of the home,” she could not benefit from an appraisal taken almost a year after the time provided for in the agreement. The chancellor therefore found the “sale clause” of the property settlement agreement remained operative, and pursuant to that clause he awarded Juanita approximately $6,000 from the remaining proceeds of the home.

¶ 11. On appeal, Juanita argues that the chancellor erred in not enforcing the agreement and awarding her equity based upon the May 25, 2006, appraisal, which valued the home at $260,000. Richard responds that no mutually agreed appraisal was ever conducted, and he argues that Juanita’s May 2006 appraisal of $260,000 was significantly higher than it would have been had it been conducted in July 2005, particularly because of the rise in property values in the Hattiesburg area following Hurricane Katrina.

¶ 12. A “property settlement agreement is no different from any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character.” East v. East, 493 So.2d 927, 931-32 (Miss.1986). Once approved by the chancery court, it will be enforced absent fraud or overreaching. Bell v. Bell, 572 So.2d 841, 844 (Miss.1990). Our courts take a dim view of efforts to modify such agreements, “as we ordinarily do when persons seek relief from their improvident contracts.” Id. “A court is obligated to enforce a contract executed by legally competent parties where the terms of the contract are clear and unambiguous.” Merchants and Farmers Bank of Kosciusko v. State ex rel. Moore, 651 So.2d 1060, 1061 (Miss.1995).

¶ 13. On the other hand, “performance of a contract is excused, or may not be taken advantage of, when it is prevented by the acts of the opposite party....” 17B C.J.S. Contracts § 528 (1999) (citations omitted).

¶ 14. The chancellor found that Juanita had wrongfully prevented the marital home from being appraised in a timely fashion. We find Juanita’s argument— that the chancellor should have used the May 2006 appraisal value she offered — to be without merit; Juanita may not benefit from appreciation occurring during the eleven-month delay she was found to have caused. Additionally, because no evidence was offered as to what the property would have appraised for, had it been timely appraised, we can find no error in the chancellor’s decision. This issue is without merit.

2. Distribution of Equity in the RV

¶ 15. The parties owned a 2000-model Coachman RV prior to divorce. The property settlement agreement provided that the RV would be listed for sale, and that any proceeds from the sale remaining after the loan payoff would be split equally between the parties. The agreement did not provide which party would be responsible for arranging for the sale.

¶ 16. Testimony at trial indicated that the RV had generally been in Richard’s possession following the divorce, but he had been unable to sell it despite various efforts. Richard testified that he did not expect to be able to sell the RV because it was worth less than the payoff value of the loan.

¶ 17. The chancellor found that the RV was a liability rather than an asset. He also found that no evidence had been offered that the RV had ever been a net asset. Finally, the chancellor held that because Richard had assumed responsibility for the RV, he should be awarded it and exclusively assume all associated debts and obligations.

¶ 18. On appeal, Juanita argues that the chancellor erred in not awarding her some equity in the RV.

¶ 19. Juanita’s first argument centers around the October 2004 refinancing of the RV. Richard testified that his obligation on the RV prevented him from being approved for a loan to purchase a home. Richard therefore secured a loan from his father and used it to pay off the debt from the RV. After purchasing the home, Richard took a loan against the RV for the same amount owed prior to the refinancing, using the proceeds to pay back his father. Juanita appears to argue that this transaction amounted to a sale of the RV, and that she was entitled to half the “proceeds,” meaning the funds received from the second loan. This argument is without merit.

¶ 20. Juanita also argues that she was unable to offer evidence of the RVs value because it was in Richard’s possession for much of the time following the divorce. This argument is without merit because, first, there were other ways of proving the value of the vehicle and, second, because there is no evidence in the record that Juanita ever attempted to arrange for an appraisal or to take possession of the vehicle.

3. Attorney’s Fees

¶ 21. Juanita argues that the chancellor erred in not awarding her attorney’s fees. In divorce matters, the decision whether to award attorney’s fees is generally entrusted to the sound discretion of the chancellor. Tynes v. Tynes, 860 So.2d 325, 331(¶ 22) (Miss.Ct.App.2003). Unless the chancellor abuses his discretion, his decision will generally be upheld. Ladner v. Ladner, 436 So.2d 1366, 1375 (Miss.1983).

¶ 22. On appeal, Juanita argues that the chancellor abused his discretion in failing to award attorney’s fees for several reasons. First, she points out that the chancellor found Richard to be in “wilful contempt” for his failure to transfer to her a 401 (k) account and certain “sky miles points” as provided for in the property settlement agreement. She also notes that the chancellor — without finding Richard in contempt as to these issues — nonetheless awarded her approximately $7,000 in other damages relating to the property settlement agreement, including car rental fees, hold-over lease payments for an automobile, moving expenses, storage fees, veterinary bills, medical bills, and expenses relating to the children’s activities.

¶ 23. Juanita is correct to argue that, where one party is found in contempt of a previous judgment, attorney’s fees are generally proper. Newell v. Hinton, 556 So.2d 1037, 1043 (Miss.1990). However, in this case, although the chancellor did find Richard in contempt with regard to some of the issues presented, he was not uncritical of Juanita’s conduct, finding that she had acted in bad faith with regard to other issues. The chancellor also repeatedly criticized how both parties had conducted themselves following the divorce and over several years of post-divorce litigation.

¶24. “It is the function of the chancellor to weigh all of the facts and assess the circumstances and to award attorney’s fees accordingly.” O’Neill v. O’Neill, 501 So.2d 1117, 1119 (Miss.1987); see also Hartley v. Hartley, 317 So.2d 394, 395 (Miss.1975) (“It is especially true in divorce cases that circumstances alter cases and that the chancellor should have wide authority and discretion in setting appropriate attorney’s fees after carefully considering the facts of each case.”).

¶25. In considering Juanita’s request for attorney’s fees, the chancellor found that “this protracted litigation has resulted from some failure on the part of each [party] to implement the [property settlement] agreement in accordance with its own terms.” Despite finding Richard in contempt on some issues, the chancellor concluded that, on the balance, both parties should pay their own attorney’s fees. We find no abuse of discretion in so holding. This issue is without merit.

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

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

      . Richard returned to Ohio in January 2004; Juanita followed in September 2006.

      . The judgment on reconsideration added only that Juanita would be entitled to certain pre-judgment interest.

      . Richard testified that, after securing a court order, he had the home appraised in January 2006 for $230,000, but he offered no corroborating evidence.

      . The chancellor additionally ordered that Richard pay approximately $7,000 from the remaining proceeds to satisfy other obligations under the property settlement agreement.

      . Richard also argues in his brief on appeal that Juanita's appraiser was a business associate of a nearby neighbor, and that the appraisal is unreliable for that reason. This, however, does not appear to be supported by any testimony in the record.


author: CARLTON, J.,

text:
    Leander SMITH a/k/a Lee Andrew Smith a/k/a Tiger, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-01573-COA.
    Court of Appeals of Mississippi.
    Feb. 16, 2010.
    George T. Holmes, Leslie S. Lee, Jackson, Wilbert Levon Johnson, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.

      Before MYERS, P.J., GRIFFIS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Leander Smith was convicted in the Quitman County Circuit Court of business burglary. He was sentenced as a habitual offender to seven years in the custody of the Mississippi Department of Corrections (MDOC) under Mississippi Code Annotated section 99-19-81 (Rev.2007).

¶2. Smith argues on appeal that the trial court erred by allowing testimony regarding a surveillance video of the burglary, in violation of Uniform Rule of Circuit and County Court 9.04. He asks this Court to reverse his conviction and remand his case to the trial court for a new trial. We find no error and affirm Smith’s conviction and sentence.

FACTS

¶ 3. On January 24, 2008, between approximately 1:30 and 1:45 a.m., the Family Dollar Store in Marks, Mississippi was burglarized. Lena Thomas and Dora Honey, who lived across the street from the store, testified that they heard a knocking sound coming from the direction of the Family Dollar Store. When they looked outside, the women saw someone standing near the shopping baskets outside of the store, and then later they saw someone moving around inside of the store. The women called the police. Both Thomas and Honey reported that the person they saw standing outside, and later inside, of the store wore dark clothing.

¶ 4. Officer Roderick Mabry and Officer Rocky Jaco of the Marks Police Department arrived on the scene within a few minutes of the break-in. Officer Mabry testified that he saw a figure running across the street from the Family Dollar Store. Thomas and Honey pointed to the man crossing the street, whom they identified as the burglar. Officers Mabry and Jaco proceeded to apprehend and arrest Smith. Officer Mabry searched Smith’s clothing and found two black stocking caps in the left pocket of his overalls. Officer Mabry also found broken glass on Smith’s clothing.

¶ 5. Smith faced a jury trial on September 2-4, 2008, in the Quitman County Circuit Court. During the trial, the State disclosed to the court that Family Dollar Store possessed a surveillance video of the burglary, but the State did not possess a copy of the video, since it could not be duplicated or copied onto a videotape. Due to the inability to preserve the video for court, the State assured the court that there would be no testimony about the video, and the parties stipulated that no reference would be made to the video evidence during the trial.

¶ 6. At trial, Smith testified that he had purchased the two stocking caps from La-Tisha McGee, an employee at the Family Dollar Store, prior to the burglary. The State called McGee to the stand in rebuttal. McGee testified and denied selling Smith any items during the time period in question or on the day of the burglary. She also stated that she knew for certain that Smith had broken into the store. When repeatedly asked by the defense on cross-examination how she knew Smith had committed the burglary, McGee explained that she had seen him on the store’s surveillance video. The defense continued cross-examining McGee with questions about the video, and then the defense asked the court for' a mistrial based on her responses to the defense’s questions.

¶ 7. The judge denied the defense’s motion for a mistrial, holding that the circumstances failed to warrant a mistrial, since the State possessed no intent to admit the video as evidence or mention the video at trial. Nonetheless, the defense continued to cross-examine McGee about the video. After hearing testimony from seven witnesses, including Smith, the jury found Smith guilty of burglary of a business. The trial court sentenced Smith to seven years incarceration, as a habitual offender, in the custody of the MDOC. Smith now appeals his conviction and sentence. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 8. “This Court employs an abuse of discretion standard when reviewing a denial of a motion for mistrial.” Livingston v. State, 943 So.2d 66, 70 (¶ 8) (Miss.Ct.App.2006). On review, a violation of Rule 9.04 is viewed as “harmless error unless it affirmatively appears from the entire record that the violation caused a miscarriage of justice.” Payton v. State, 897 So.2d 921, 942 (¶ 67) (Miss.2003). We also note that “[ujnless a criminal defendant makes a contemporaneous objection to the admission of previously undisclosed evidence, the issue is procedurally barred on appeal.” Livingston, 943 So.2d at 70 (¶ 8).

DISCUSSION

¶ 9. Smith argues that under Rule 9.04, non-disclosure of the surveillance video by the State required exclusion of the video. Smith asserts that since the parties had stipulated that there would be no testimony about the video, the circuit court should have granted a mistrial. Rule 9.04 states, in pertinent part, that:

A. Subject to the exceptions of subsection “B,” below, the prosecution must disclose to each defendant or to defendant’s attorney, and permit the defendant or defendant’s attorney to inspect, copy, test, and photograph upon written request and without the necessity of court order the following which is in the possession, custody, or control of the State, the existence of which is known or by the exercise of due diligence may become known to the prosecution:
5. Any physical evidence and photographs relevant to the case or which may be offered in evidence....
I. If at any time prior to trial it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, or enter such other order as it deems just under the circumstances.
If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows:
1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and
2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.
3. The court shall not be required to grant either a continuance or mistrial for such a discovery violation if the prosecution withdraws its efforts to introduce such evidence.
The court shall follow the same procedure for violation of discovery by the defense.

¶ 10. Smith submits that the facts of the present case are similar to Box v. State, 437 So.2d 19, 21-22 (Miss.1983), which the supreme court reversed and remanded because the circuit court allowed in evidence from a material witness, even though the State had failed to disclose the witness until the evening before trial. Smith argues that, like Box, this case requires a reversal and a remand for a new trial.

¶ 11. However, the facts in Box are distinguishable from the case before us. In the case now before the court, the defense, and not the State, elicited the objectionable information. In Box, the State called Michael Waters, the owner of the automobile allegedly used to carry out a robbery, as a witness at trial. Box, 437 So.2d at 20. Waters’s name was not disclosed to the defense until the evening before the trial, despite the fact that the State knew eight months ahead of trial that Waters might testify. Id. at 21-22. The supreme court, thus, held that the State’s discovery violation warranted a reversal. Id. In the present case, however, the State notified the defense before the trial that the surveillance video existed, but that the State had no intention of introducing the video or testimony regarding the video into evidence. Moreover, the Family Dollar Store possessed the video, not the State. Further, the questioning of McGee by the defense, not the State, led to the admission of the testimony regarding the video.

¶ 12. Smith also cites Williams v. State, 991 So.2d 593, 600-03 (¶¶ 22-23) (Miss.2008), where the circuit court admitted an audiotape of a 911 telephone call that was not provided to the defense in discovery. The State explained that it received the audiotape the day before the trial. Id. at 600 (¶ 23). The circuit court granted Williams forty minutes to review the 911 tape and consult with witnesses. Id. at 600 (¶ 22). The Williams court ruled that since the 911 tape duplicated other evidence admitted at trial, and since the discovery requirements discussed in Box were followed, there was “no unfair surprise.” Id. at 601-02 (¶¶ 29-30). Smith argues that in the present case, the Box procedure was not followed because the defense did not have an opportunity to review the surveillance video. Smith asserts that he was, therefore, disadvantaged by McGee’s unauthorized testimony. He states that since his counsel never reviewed the video, as in Williams, Smith was ultimately not able to cross-examine McGee effectively about a video recording that only she and employees of Family Dollar Store had seen.

¶ 13. Smith also points to the recent case of Fulks v. State, 18 So.3d 803, 804 (¶ 3) (Miss.2009), where the State advised defense counsel for the first time on the day before the trial that the key witness would be testifying to a new version of events. Again, Smith overlooks a key distinction in this case — Smith elicited the testimony he now claims was admitted in error, not the State. The supreme court held in Fulks that “the State’s eleventh-hour disclosure of the unexpected content of the witness’s testimony produced ... a trial by ambush in which critically important evidence was sprung on a defendant with such abruptness that defense counsel had time neither to investigate its veracity nor to make meaningful preparation to meet it.” Id. at 805 (¶ 8). The court noted that its analysis in Fulks depended on the fact that the witness’s revised account amounted to “previously undisclosed evidence.” Id. at 806 (¶ 11). The court distinguished that Fulks, like Box:

[did] not present [a] situation[ ] in which, for example, a witness changes his story on the stand. Such a situation might present other problems requiring review; but for purposes of the Box rule, such testimony would not amount to “previously undisclosed evidence” because the State would have had no knowledge thereof to disclose.

Id. at (¶ 11).

¶ 14. Smith’s argument fails to address facts reflecting that this case falls into the category that the supreme court distinguished from Fulks and Box. Here, the record reflects that the State learned about the surveillance video from a person who was not even a witness in the case; therefore, the State had no knowledge or reason to suspect that McGee would mention the video. As a result, the State was just as surprised by McGee’s testimony as the defense. Further, the State maintains that it did not possess the surveillance video, since the video could not be copied onto a videotape and admitted into evidence; thus, the State had no intention of mentioning the video at trial. Moreover, in Fulks, the State offered the testimony of the objectionable witness. In Smith’s case, however, the State did not seek introduction of admission of the evidence regarding the video.

¶ 15. The State also points out that McGee’s testimony regarding the surveillance video was elicited by the defense during cross-examination. The defense repeatedly questioned McGee about her certainty regarding the defendant’s role in the burglary, which led McGee to explain that she had seen Smith on the surveillance video:

Q: My question is not whether you sold him anything. My question is simply, are you positive he never came to that store?
A: I’m positive he didn’t come to the store on a day that I worked.
Q: He did not?
A: He didn’t.
Q: How many times have you seen him in the store?
A: Well, I know I have seen him sometimes in the store. During the time after he had broken into the store—
Q: So, so wait a minute. Excuse me. So how do you know he broke into the store or somebody told you that?
A: I saw him on camera.
Q: You saw him on camera?
A: I saw him on camera, yes. One of the workers took me back there and said, what do you see.
Q: And you saw him on camera, right?
A: Like he ran back out the door, going like out the door.
Q: You saw his face?
A: That was him.
Q: And who did you tell that to?
A: Who did I tell that to?
Q: Uh-huh.
A: They was [sic] telling me.

After eliciting this testimony on cross-examination, the defense counsel asked for permission to approach the bench, and in the presence of the jury but out of the hearing of the jury, the defense asked the court to order a mistrial. The court denied this request.

¶ 16. We find that such testimony constitutes invited error. In Lane v. State, 841 So.2d 1168, 1169 (¶ 19) (Miss.Ct.App.2003), this Court held “that a defendant cannot complain of evidence that he himself introduces by virtue of his own questions.” We noted that: “Objectionable statements are not error if they are the product of direct and cross-examinations by the defense counsel.” Id.

¶ 17. In Triggs v. State, 803 So.2d 1229, 1234 (¶ 12) (Miss.Ct.App.2002), a witness at trial made references to a separate shooting allegedly committed by Paul Triggs that occurred prior to the shooting in question. The references to the prior bad act were made during cross-examination by Triggs’s counsel. Id. On appeal, this Court held that “an appellant cannot complain of damaging testimony if the testimony is in response to his questions.” Id. at (¶ 14) (citing Hoops v. State, 681 So.2d 521, 528 (Miss.1996)). The witness gave “a direct and responsive answer” to the question. Id. However, the defense asked the question again, which led to the witness’s statement about the prior bad act. Id. Since the defense elicited the response through repeated questioning, this Court held that Triggs “cannot complain that the answer was one he did not want.” Id. (citation omitted).

¶ 18. In the case before us, Smith’s counsel elicited McGee’s testimony regarding the surveillance video by repeatedly asking during cross-examination how she knew that Smith had robbed the store. Thus, Smith cannot now complain about McGee’s statement, since he invited the error through his own questioning of the witness. The defense opened the door to testimony about the surveillance -video by asking McGee, an employee of Family Dollar Store, as to how she was sure her memory about Smith committing the burglary was accurate, and she answered. Here, the Family Dollar Store, not the State, possessed the video. The defense was notified of the existence of the video, but still threw open the door.

¶ 19. The record also reflects that although the court denied Smith’s motion for a mistrial, the court did offer to instruct the jury to disregard all information regarding the video. However, the defense counsel stated that he wanted to continue questioning McGee about the video. In addition, we find that the record reflects that testimony from other witnesses supports Smith’s conviction, including testimony from the police officers who found the stolen stocking caps in Smith’s pocket, as well as testimony from the two eyewitnesses who identified Smith once he was apprehended. We find that this issue is without merit.

¶ 20. THE JUDGMENT OF THE QUITMAN COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF A BUSINESS AND SENTENCE AS A HABITUAL OFFENDER OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO QUITMAN COUNTY.

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

      . The security alarm inside of the store also went off once the windows were broken, alerting the police of the break-in.

      . These caps are also referred to as "skull caps” in the record and briefs.