author: FAIR, J., FOR THE COURT:

text:
    THOMPSON TREE AND SPRAYING SERVICE, INC. d/b/a Live Oak Construction, Appellant v. CITY OF MCCOMB, Mississippi, Appellee
    NO. 2017-CA-00640-COA
    Court of Appeals of Mississippi.
    November 20, 2018 Rehearing Denied March 5, 2019
    ATTORNEYS FOR APPELLANT: CLYDE X. COPELAND, MATTHEW WILLIAM VANDERLOO, RIDGELAND, CORY TODD WILSON
    ATTORNEY FOR APPELLEE: WAYNE DOWDY, MAGNOLIA
    BEFORE LEE, C.J., FAIR AND WILSON, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. In this contract case, Thompson Tree and Spraying Service Inc., doing business as Live Oak Construction ("Live Oak"), appeals a judgment rendered by the Pike County Circuit Court in favor of Live Oak on some claims but not all. The trial court awarded Live Oak a total of $7,016.75 against the City of McComb. Live Oak now appeals.

FACTS

¶ 2. Following the statutory process for bidding requirements, the City advertised for bids to construct three buildings at the McComb Sports Park, a center for baseball and softball fields for the City. Live Oak was the lowest bidder at $252,000 and was awarded the contract. Steve Cox, a McComb architect, drafted the plans for the City and supervised the work through completion. Cox was named as a defendant but was dismissed from the lawsuit on motion for summary judgment.

¶ 3. On completion of the project by Live Oak, the City paid the contract price, along with an additional sum of $1,941.60 reflected in a written construction contract change, (change order) agreed upon by Live Oak, Cox, and the City. The contract called for completion of construction 120 days after the "Notice to Proceed"-given by Cox on January 20, 2014-on penalty of $250 per day in liquidated damages if it took longer. Substantial completion occurred on September 19, 2014. The term of construction lasted for eight months rather than four as outlined in the contract. The City did not seek liquidated damages. Live Oak submitted that the City is to blame for the entire 120-day delay and sought related damages in the amount of $135,760.73 above the paid contract price.

¶ 4. After a bench trial, the trial court found for Live Oak on some of the claimed contract breaches and awarded a judgment against the City for $4,876.75. Live Oak filed motions under Mississippi Rules of Civil Procedure 52(b) and 59(e) to amend the trial court's finding of facts and final judgment. Subsequently, the order was amended, and a total judgment of $7,016.75 was awarded to Live Oak. On appeal, Live Oak claims that the trial court committed manifest error in not finding the City wholly liable for the breaches it asserted caused the delay and argues that the evidence presented at trial was unrebutted. Further, Live Oak argues the trial court erred in awarding Live Oak an arbitrary amount of damages for the City's liability. For the following reasons, we affirm.

DISCUSSION

¶ 5. Live Oak contends that it is entitled to damages above the contract price in light of the delay caused by the City. It specifically highlights the costs and overhead associated with the following: (1) lack of power to the job site; (2) moving the press box from its original location; (3) extra dirt work not originally agreed upon; (4) lintels that were not specified on the architect's plan; and (5) overall delay.

¶ 6. "The applicable standard of review will not permit that the finding of the trier of fact be disturbed on appeal if there is substantial supporting evidence even if under the same proof we might have found otherwise. The finding of fact may not be set aside unless manifestly wrong." Bailey v. Worton , 752 So.2d 470, 474 (¶ 9) (Miss. Ct. App. 1999). Where a circuit judge sits without a jury, the deference given is that which is given to a chancellor's findings. Sweet Home Water & Sewer Ass'n v. Lexington Estates Ltd. , 613 So.2d 864, 872 (Miss. 1993). "Findings of fact made by a chancellor which are supported by credible evidence[ ] may not be set aside on appeal." Bailey , 752 So.2d at 474 (¶ 9).

It is settled law that the chancellor is the judge of the weight and worth of the testimony and the court's decree based upon the evidence will not be disturbed unless manifestly wrong. Therefore, when the chancellor is confronted with conflicting testimonies, he determines which has more credibility. Even if this Court disagreed with the lower court on the finding of fact and might have arrived at a different conclusion, we are still bound by the chancellor's findings unless manifestly wrong.

Reed v. Weathers Refrigeration & Air Conditioning Inc. , 759 So.2d 521, 524 (¶ 10) (Miss. Ct. App. 2000) (citation and internal quotation marks omitted). "Additionally, where the chancellor has made no specific findings, we will proceed on the assumption that he resolved all such fact issues in favor of the appellee."

Lee v. S. Miss. Elec. Power Ass'n , 17 So.3d 597, 599 (¶ 7) (Miss. Ct. App. 2009).

¶ 7. Live Oak points to various contract provisions to support its claim for damages associated with the delay. We highlight the applicable sections:

ARTICLE 10 CHANGES IN THE WORK
§ 10.1 The Owner, without invalidating the Contract, may order changes in the Work within the general scope of the Contract consisting of additions, deletions or other revisions, the Contract Sum and Contract Time being adjusted accordingly in writing. If the Owner and Contractor can not agree to a change in the Contract Sum, the Owner shall pay the Contractor its actual costs plus reasonable overhead and profit.
....
§ 10.3 If concealed or unknown physical conditions are encountered at the site that differ materially from those indicated in the Contract Document or from those conditions ordinarily found to exist, the Contract Sum and Contract Time shall be subject to equitable adjustment.
ARTICLE 11 TIME
§ 11.2 If the Contractor is delayed at any time in progress of the Work by changes ordered in the Work, or by labor disputes, fires, unusual delay of deliveries, unavoidable casualties or other causes beyond the Contractor's control, the contract time shall be subject to equitable adjustment.

A. Lack of Power

¶ 8. Live Oak contends that it was not given power to the construction site for a period of three months, which was guaranteed by the City and then was forced to rent generators. Live Oak claims the rental caused delay and out-of-pocket expenses that were not foreseen when the bid was made. The City claims that it never guaranteed power and merely offered to make a phone call to Entergy to ask for power.

¶ 9. The record indicates that the specifications state that the "[o]wner will provide ... electrical services to all buildings" but make no mention about providing power to the construction site prior to erecting the buildings. Live Oak points to the minutes taken during the pre-construction meeting where it was noted that "site utilities [were] discussed - provided by owner." Furthermore, Live Oak looks to correspondence between itself and the City, wherein Live Oak complained repeatedly that there was no power at the site and the City responded that "this is in the works."

¶ 10. The record is clear that the City never outright stated that the contractor was required to provide its own power to the construction site. However, the contract was never changed to articulate who would be responsible to provide power to the construction site. While there may have been an understanding, there is nothing in the contract that required the City to provide power. The City asked Entergy to provide power to the site for the start of construction, but the City was unsuccessful. The City provided generators as a backup option while the City "worked on it." Live Oak chose not to use the City's generators that were furnished to them. Here, the trial court held that the City did not breach its contract for lack of power and we cannot find error in its finding.

B. Moving the Press Box Location

¶ 11. Live Oak contends that because of the fifty-two-day delay in determining where to move the press box, there were costs resulting from the rental equipment and labor that were placed on standby. The trial court, in its amended order, stated that "the City is liable for damages caused by the delay in moving and establishing a location for the Press Box for Field no. 4. and assesses damages in the amount of $2,000."

¶ 12. The record makes clear that the relationship between Live Oak and the City became strained as the months went on. In general, it seems the City resisted change orders throughout this project. In fact, there was testimony that the City flat out would not allow them. However, after much back and forth among the parties, one was created for the issue at hand-the delay in determining the press box location. This change order incorporated the additional time and materials needed for the new press box location, was agreed upon by all parties, and paid accordingly. The City, in essence, argues that the change order prevents Live Oak from asking for more than what was submitted for the agreed-upon work order.

¶ 13. At trial, Cox testified that he did not believe that the City caused a fifty-two-day delay. And while the original estimate for the work order Live Oak submitted was around $7,000, Cox testified that they made some changes, namely omitted some rolling doors, which brought the estimate to around $2,000. Here, the trial court awarded an additional $2,000 for services rendered. Live Oak believes it is entitled to a greater amount in light of having items and labor on standby amounting to $37,712. There is nothing in the record that adequately explains why, despite being on notice of the delay caused by the change of the press box location, Live Oak felt the need to keep resources on standby. Furthermore, having found the City liable, the trial court was within its discretion to award the damages. We cannot find error in the trial court's findings and award.

C. Dirt Work

¶ 14. Live Oak contends that after the project was essentially completed and after being deemed "substantially completed" it was forced back to the work site for dirt work that was not contemplated in the construction bid. It put forth evidence arguing that actual costs were $2,270. In its order, the trial court found that "Live Oak has proven by a preponderance of the evidence that it was forced to perform dirt work and assess[ed] damages for this breach in the amount of $1500.00." The City contends that it asked for a finished product that included the dirt work and argues that it did not ask for work outside the scope of the contract. The court was not required to accept Live Oak's computation of those damages. In light of the record, we cannot find the trial court erred.

D. Lintels

¶ 15. According to Live Oak, the design plans, created by Cox, did not show lintels over certain windows and doors, but they later proved necessary. Live Oak said it did not foresee this expense, and therefore it was not included in the contract bid.

¶ 16. Live Oak explains that:

[A] lintel is used when you have a door opening that has brick to both sides and above the door. A door frame alone could not support the weight of the bricks, so a piece of flat iron or angle iron is placed along the top of the door frame to hold the weight of the bricks above the door or window frame.

¶ 17. Here, the City points to Cox's testimony in which he explained that the lintels "were indicated on sectional drawings .... They may or may not have been labeled ...[,] but it is such a common detail that it is incredible that somebody would bring it up ...." Here, the trial court held that Live Oak did not prove "by a preponderance of the evidence that [the City]

breached the contract in this regard and as to this issue [found] for [the City]." Given that the testimony differed as to whether lintels should have been more fully incorporated in the contract bid, the trial court chose to believe the City's position, and we cannot find error in its decision.

E. Overall Delay

¶ 18. Live Oak admits that the trial court awarded actual costs for addressing the myriad of other issues it had with the City regarding construction, including bathroom partitions, door knobs, counter-tops, wall widths, a buried power line, and flooring. However, Live Oak again points to the contract and argues that in addition to actual costs it is owed reasonable overhead and profit.

¶ 19. Here, the trial court did not make a finding that the delay was caused by the City; thus, Live Oak was not entitled to overhead damages and profit. There was evidence of bad weather from January to March that added to the delay, and Live Oak's damage calculations did not account for this. Weather-related issues are clearly out of the control of both the City and Live Oak. Furthermore, the record is clear that the claims for breach of contract were rebutted by the City with differing testimony. While there are no specific reasons, the trial court acknowledged the need to reimburse Live Oak and compensated it accordingly. We cannot find error in its findings. For the foregoing reasons, we affirm.

¶ 20. AFFIRMED.

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

      Miss. Code Ann. § 31-7-13 (Rev. 2010).

      See Miss. Code Ann. § 31-7-13(g).


source: Caselaw Access Project

author: WILSON, J., FOR THE COURT:

license: Public Domain

text:
    NORTH DALLAS BANK & TRUST CO., Appellant v. John M. MABRY, Appellee
    NO. 2017-CA-00910-COA
    Court of Appeals of Mississippi.
    November 20, 2018
    ATTORNEY FOR APPELLANT: AMANDA CLEARMAN WADDELL, HATTIESBURG
    ATTORNEY FOR APPELLEE: JOHN O. WINDSOR
    BEFORE LEE, C.J., FAIR AND WILSON, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. In December 2004, North Dallas Bank & Trust Company (North Dallas) obtained a default judgment in Texas against John Mabry. In December 2014, North Dallas enrolled the judgment in Mississippi. In February 2016, Mabry filed a motion to set aside the enrollment of the judgment pursuant to Mississippi Rule of Civil Procedure 60(b)(4). The Alcorn County Circuit Court granted Mabry's motion, holding that the judgment was unenforceable because it was enrolled more than seven years after the Texas judgment was entered. See Miss. Code Ann. § 15-1-45 (Rev. 2012). Accordingly, the court ordered the circuit clerk to mark the judgment as cancelled on the county judgment roll.

¶ 2. On appeal, North Dallas argues that the circuit court erred because Mabry waived his statute of limitations defense and did not file his Rule 60(b)(4) motion "within a reasonable time." However, we conclude that the circuit court correctly applied the precedent of this Court holding that attempts to enroll or enforce a foreign judgment after the expiration of the statutory limitations period are void ab initio. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. On December 14, 2004, North Dallas obtained a default judgment against Mabry in state court in Texas for a total of $470,521.43 plus post-judgment interest. Almost ten years later, on December 11, 2014, North Dallas filed a notice of enrollment of the judgment in the Alcorn County Circuit Court. North Dallas's certificate of service shows that it mailed a copy of the notice to both an address in Savannah, Tennessee, and a restaurant in Corinth, the Chop House Shiloh Ridge (Chop House). North Dallas alleged, on information and belief, that the Savannah address was Mabry's last known address and that Mabry could also be found at the Chop House, where he was once employed. The docket appears to show that the circuit clerk sent notice of the enrollment to both addresses by certified mail, but the notice sent to the Savannah address was returned to the clerk marked not deliverable/unable to forward.

¶ 4. In January 2015, North Dallas sought to enforce the enrolled judgment through a writ of garnishment directed to the Chop House. A sheriff's return shows that the writ and a summons were served on the Chop House, but the Chop House failed to respond. North Dallas subsequently filed a motion for a conditional judgment against the Chop House as garnishee. In July 2015, the circuit court granted North Dallas's motion and ordered the Chop House to appear at a show-cause hearing. However, hearing notices mailed to the Chop House were returned as undeliverable. The Chop House apparently ceased operations at some point.

¶ 5. In January 2016, counsel for Mabry filed an entry of appearance. In February 2016, Mabry filed a motion to set aside the judgment pursuant to Rule 60(b)(4) of the Mississippi Rules of Civil Procedure. Mabry argued that the enrollment of the judgment was "void" because it was filed in Mississippi more than seven years after the judgment was entered in Texas. See Miss. Code Ann. § 15-1-45. In response, North Dallas denied that the judgment was void. North Dallas argued that Mabry had waived his statute of limitations defense and that his Rule 60(b)(4) motion was untimely.

¶ 6. Following a hearing, the circuit court granted Mabry's Rule 60(b)(4) motion. The court found that the judgment was unenforceable because it was enrolled more than seven years after it was entered in Texas. North Dallas appealed.

ANALYSIS

¶ 7. North Dallas argues that the circuit court erred by granting Mabry's Rule 60(b)(4) motion. North Dallas contends that the judgment was not void, that Mabry waived his statute of limitations defense, and that Mabry's Rule 60(b)(4) motion was untimely. Our standard of review is de novo because the circuit court's ruling and the issues raised by North Dallas on appeal concern "the application of law to a set of undisputed facts." Nat'l Enters. Inc. v. Valsamakis , 879 So.2d 523, 523-24 (¶ 4) (Miss. Ct. App. 2004).

¶ 8. Mabry failed to file a brief on appeal. We could "take [Mabry's] failure to file a brief as a confession of error and reverse." Jay Foster PLLC v. McNair , 175 So.3d 565, 571 (¶ 15) (Miss. Ct. App. 2015) (quoting Archie v. City of Canton , 92 So.3d 1279, 1282 (¶ 10) (Miss. Ct. App. 2012) ). However, "if the record can be conveniently examined and such examination reveals a sound and unmistakable basis or ground upon which the judgment may be safely affirmed, we may disregard [Mabry's failure to file a brief] and affirm." Id.

¶ 9. The courts of this State are required to give "Full Faith and Credit" to judgments entered by the courts of other states. U.S. Const. art. IV, § 1 ; see Davis v. Davis , 558 So.2d 814, 817 (Miss. 1990). "Enrollment and enforcement of foreign judgments in Mississippi is governed by statute ...." Davis , 558 So.2d at 817. The Uniform Enforcement of Foreign Judgments Act, Miss. Code Ann. § 11-7-301 to -309 (Rev. 2004), establishes the procedure for enrolling a foreign judgment, and the applicable statute of limitations is found in Mississippi Code Annotated section 15-1-45. Davis , 558 So.2d at 816-18. The statute of limitations for enrolling or enforcing a foreign judgment in Mississippi is seven years after entry of the foreign judgment or three years if the judgment debtor was a Mississippi resident when the foreign action was commenced. Miss. Code Ann. § 15-1-45 ; Davis , 558 So.2d at 817. To be enforced in Mississippi the foreign judgment must be "timely and properly enrolled in Mississippi." Davis , 558 So.2d at 818.

¶ 10. This Court has addressed the same basic issues raised in this appeal twice previously. In Magallanes v. Magallanes , 802 So.2d 174 (Miss. Ct. App. 2001), the plaintiffs obtained a judgment against the defendants in Virginia in 1987 but made no effort to collect on the judgment until February 2000, when they enrolled the judgment in Mississippi. Id. at 175 (¶¶ 2-3). In November 2000, the defendants filed a motion under Rule 60(b)(4) to set aside the enrollment of the judgment. Id. at 175-77 (¶¶ 1-3, 11). The defendants argued that the enrolled judgment was void because it was not filed in Mississippi within the seven-year statute of limitations. Id. at (¶¶ 3-4, 11) (citing Miss. Code Ann. § 15-1-45 ). In response, the plaintiffs argued that the defendants "waived" the issue by failing to respond to the notice of enrollment of the judgment within the twenty-day period set by statute. Id. at 175 (¶ 5) (citing Miss. Code Ann. § 11-7-305(3) ). This Court rejected the plaintiffs' waiver argument, stating succinctly: "The [plaintiffs] in this case did not enroll their [foreign] judgment within seven years as required by the statute; therefore, the judgment cannot be enforced ...." Id. at 176 (¶ 10) (emphasis added). The plaintiffs also argued that the defendants could not attack the enrolled judgment in a motion under Rule 60(b)(4) because "eight months after receiving notice that the judgment was enrolled [was] too late to assert that the judgment [was] void." Id. at 176 (¶ 11). However, this Court rejected that argument as well. We acknowledged the general rule that a motion under Rule 60(b) must be filed within a "reasonable time," but we held that the judgment was simply "unenforceable because it was not timely filed pursuant to [ section] 15-1-45." Id. at 176-77 (¶ 11).

¶ 11. This Court subsequently reached the same conclusions in Valsamakis . In that case, National Enterprises (National) obtained a judgment in 1994 in Tennessee against Valsamakis. Valsamakis , 879 So.2d at 523 (¶ 1). Valsamakis was a Mississippi resident, so section 15-1-45's three-year statute of limitations applied to any action to enforce the judgment. Id. at (¶ 3). National enrolled the judgment in Mississippi in 1995 but did not obtain a writ of garnishment against Valsamakis's employer until 1999. Id. at (¶¶ 1-2). In 2003, Valsamakis filed a motion to vacate the garnishment, which the circuit court granted. Id. at (¶ 3). The circuit court held "that National had requested a writ of garnishment more than three years after its judgment was rendered, the writ of garnishment was void ab initio , and all withheld funds should be returned to Valsamakis." Id.

¶ 12. On appeal, this Court affirmed. We held that the garnishment action "was void ab initio " because the underlying judgment "lapse[d]" and "was extinguished by the expiration of the limitations statute." Id. at 524 (¶ 7). National also argued that Valsamakis waived his right to raise a statute of limitations defense because he waited four years to file his motion to vacate. Id. at (¶ 8). However, we held that Valsamakis's argument was not a mere "defense." Id. We held "that the judgment was void ab initio because the statute of limitations had run prior to National's writ of garnishment being issued." Id. We further stated that the judgment was wholly "unenforceable because it was not timely filed pursuant to [ section] 15-1-45." Id.

¶ 13. The holdings of Magallanes and Valsamakis are on-point and controlling in this case. Those cases establish that efforts to enroll or enforce a foreign judgment outside the limitations periods set by section 15-1-45 are void-indeed, according to Valsamakis , "void ab initio." Those two cases further hold that if a judgment is void for that reason, then the passage of time does not bar a motion to set it aside as void. Valsamakis , 879 So.2d at 524 (¶ 8) ; Magallanes , 802 So.2d at 176-77 (¶ 11).

¶ 14. This is consistent with Mississippi law in general regarding a motion to set aside a judgment as "void." Rule 60(b)(4) provides that a court may set aside a final judgment if "the judgment is void." M.R.C.P. 60(b)(4). The rule provides that such a "motion shall be made within a reasonable time." M.R.C.P. 60(b). However, our Supreme Court has held "that, essentially, there can be no time limitation for relief from a void judgment as 'no amount of time or delay may cure a void judgment.' " O'Neal v. O'Neal , 17 So.3d 572, 575 (¶ 14) (Miss. 2009) (quoting Kirk v. Pope , 973 So.2d 981, 988 (¶ 19) (Miss. 2007) ; Overbey v. Murray , 569 So.2d 303, 306 (Miss. 1990) ); accord, e.g. , Ravenstein v. Ravenstein , 167 So.3d 210, 216-17 (¶ 12) (Miss. 2014) ("[T]here is no effective time limit for seeking relief from a void judgment under Rule 60(b)(4) ....").

¶ 15. In this case, North Dallas enrolled the foreign judgment nearly ten years after it was entered in Texas-almost three years outside the limitations period set by section 15-1-45. As in Magallanes and Valsamakis , the judgment was unenforceable, and its enrollment in Mississippi was void because it was not timely filed under section 15-1-45. Mabry filed his Rule 60(b)(4) motion fourteen months after the judgment against him was enrolled. In the circuit court, Mabry did not dispute that he received notice of the enrollment. However, Mabry correctly argued that the enrollment of the judgment in Mississippi was "void." As in Magallanes and Valsamakis , Mabry was not barred from seeking relief from the void judgment. "[T]here can be no time limitation for relief from a void judgment as 'no amount of time or delay may cure a void judgment.' " O'Neal , 17 So.3d at 575 (¶ 14) (quoting Kirk , 973 So.2d at 988 (¶ 19) ; Overbey , 569 So.2d at 306 ).

¶ 16. In summary, the circuit court correctly held that the Texas judgment was unenforceable and its enrollment in Mississippi was void. Therefore, the court properly ordered the circuit clerk to cancel the enrolled judgment.

¶ 17. AFFIRMED .

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

      North Dallas filed its first notice of appeal one day too late. However, North Dallas then filed a timely motion to extend the time for filing a notice of appeal, see Miss. R. App. P. 4(g), which the circuit court granted. North Dallas then filed a timely notice of appeal.

      On this issue, this Court distinguished the Supreme Court's decision in Davis , supra . In Davis , the Supreme Court held that the judgment debtor waived various defenses to the enrollment of the judgment when he failed to file an answer or otherwise respond within the twenty-day period set by statute. Davis , 558 So.2d at 819. However, in Magallanes , this Court observed: "The [C]ourt in Davis first addressed the statute of limitations issue.... It was not until the [C]ourt had satisfied itself that the judgment had been properly filed within the statute of limitations that it looked to see if the debtor had responded to stay enforcement in a timely manner." Magallanes , 802 So.2d at 176 (¶ 7). In other words, the Davis Court determined whether the action to enroll the judgment was barred by the statute of limitations, even though the judgment debtor failed to respond to the notice of enrollment or take any action for over nine months. See Davis , 558 So.2d at 818-19.

      Void ab initio means "null from the beginning." Hood ex rel. State Tobacco Litig. , 958 So.2d 790, 815 (¶ 87) (Miss. 2007) (quoting Black's Law Dictionary 1411 (5th ed. 1979) ).

      "The first three subsections of Rule 60(b) require that a motion to set aside a judgment be filed not later than six months after the judgment is entered, but subsection (4) has no such time limit." S & M Trucking LLC v. Rogers Oil Co. of Columbia , 195 So.3d 217, 221 (¶ 17) (Miss. Ct. App. 2016).


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

text:
    Shelli D. BOUNDS, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY AND SAL-LIZ, INC., Appellees
    NO. 2017-CC-01515-COA
    Court of Appeals of Mississippi.
    November 20, 2018
    ATTORNEY FOR APPELLANT: KYLE BOYD AINSWORTH, JACKSON
    ATTORNEYS FOR APPELLEES: ALBERT B. WHITE, MADISON, JAMES RANDALL, BUSH DON A. MITCHELL
    BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. The Mississippi Department of Employment Security (MDES) affirmed the denial of unemployment benefits following Shelli Bounds's termination from Sal-Liz Inc. Bounds appealed to the Circuit Court of Rankin County, which affirmed MDES's decision. Bounds appeals again, asserting the following issues: (1) whether Sal-Liz proved that she exhibited misconduct by substantial clear and convincing evidence; and (2) whether her alleged behavior constitutes insubordination that rises to the level of misconduct. We find no error; therefore, we affirm.

FACTS

¶ 2. On July 26, 2010, Bounds began working at Sal-Liz as a sales clerk. On December 15, 2016, she was terminated. Bounds filed for unemployment benefits. A claims examiner determined that Bounds was terminated for committing misconduct connected with her employment and consequently denied her benefits. Bounds appealed the denial of her claim, and an administrative law judge (ALJ) conducted a telephonic hearing on March 14, 2017.

¶ 3. During the hearing, both Bounds and her former supervisor, Judy Alexander-Stamm, testified regarding the events that occurred on the day that Bounds was terminated. Alexander-Stamm testified that she asked Bounds-who was standing nearby reviewing an order book-to assist a customer who had entered the store. Bounds refused. Alexander-Stamm again asked Bounds to assist the customer. Bounds "slammed" the order book down onto the counter. She picked up a clipboard to read the customer's name, then "threw the clipboard across the counter." A little while later, Bounds went to the break room to have her lunch. Alexander-Stamm followed her and said that she needed to talk to Bounds about her behavior in front of the customers. Bounds replied that she was busy and to leave her alone. Alexander-Stamm reasserted that she needed to talk to Bounds, and Bounds again refused. At this point, Alexander-Stamm instructed Bounds to go home. Bounds repeatedly asked Alexander-Stamm if she was firing her until Alexander-Stamm finally stated that she was. Alexander-Stamm testified that Bounds was ultimately discharged "[f]or her behavior and insubordination, [and] lack of following instructions." Alexander-Stamm maintained that she had not initially intended on firing Bounds, but that when Bounds continued to refuse to follow instructions, she had no choice but to fire her.

¶ 4. When asked whether she had ever had problems with Bounds before that date, Alexander-Stamm replied, "We always had a b-ah, she never would um ... really help the customers. We would always have to go and ask her to help, and ... sometimes she would just bury herself in the stockroom and just, you know, uh kind of hide to keep from helping customers. It was a[n] ongoing problem." Alexander-Stamm further maintained that while Bounds had "never really had an, an outburst of anger like [that] before," she had previously refused to help customers and refused to follow orders. Alexander-Stamm stated that she had spoken with Bounds about that behavior before.

¶ 5. Bounds testified to a largely similar version of events occurring on December 15, 2016, but maintained that she did not slam the order book down or throw the clipboard across the counter. Bounds admitted that she refused to speak to Alexander-Stamm in the break room; however, she maintained that Alexander-Stamm never confirmed that she was actually firing her. Bounds also asserted that she had never been formally reprimanded prior to this incident. Bounds's sister, Theresa Borne, testified on behalf of Bounds. She agreed that Bounds's action of closing the book "made a loud sound," but she denied that Bounds slammed the clipboard onto the counter.

¶ 6. Following the hearing, the ALJ found that Bounds had exhibited misconduct in that she displayed inappropriate behavior after being instructed to assist a customer, and further displayed inappropriate behavior when Alexander-Stamm tried to speak with her about her behavior. Consequently, the ALJ denied unemployment benefits to Bounds. Bounds appealed to the MDES Board of Review (Board), which adopted the findings of fact and opinion of the ALJ and affirmed her decision. Bounds filed a notice of appeal and petition for review with the Circuit Court of Rankin County, which affirmed the Board's decision. Bounds timely appealed.

DISCUSSION

¶ 7. "The standard of review in cases where this Court examines the circuit court's judgment affirming the Board's decision is abuse of discretion." Windham v. Miss. Dep't of Emp't Sec. , 207 So.3d 1249, 1251 (¶ 8) (Miss. Ct. App. 2017). "An agency's findings should not be disturbed unless its order is: (1) not supported by substantial evidence, (2) arbitrary or capricious, (3) beyond the scope or power granted to the agency, or (4) violative of the claimant's constitutional rights." Id.

¶ 8. Mississippi Code Annotated section 71-5-513(A)(1)(b) (Supp. 2016) provides that an individual shall be disqualified from receiving unemployment benefits if "[s]he was discharged for misconduct connected with [her] work ...." Our supreme court has defined "misconduct" as

conduct evincing such willful and wanton disregard of the employer's interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer's interest or of the employee's duties and obligations to his employer, came within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion were not considered "misconduct" within the meaning of the statute.

Wheeler v. Arriola , 408 So.2d 1381, 1383 (Miss. 1982). "The employer bears the burden of proving misconduct by substantial, clear, and convincing evidence." Kidd v. Miss. Dep't of Emp't Sec. , 202 So.3d 1283, 1285 (¶ 6) (Miss. Ct. App. 2016).

¶ 9. Bounds contends that Sal-Liz presented insufficient evidence to prove by substantial, clear, and convincing evidence that she demonstrated misconduct, such that her unemployment benefits should be denied. However, we disagree. During the hearing, both Alexander-Stamm and Bounds testified to largely similar versions of the facts later delineated by the ALJ in her opinion. While Bounds contested Alexander-Stamm's testimony that she "slammed" the book onto the counter or threw the clipboard, she admitted that she refused to speak to Alexander-Stamm in the break room. Borne testified that while Bounds did not slam the book, the act of closing it "made a loud sound." Further, Sal-Liz provided sworn affidavits of Ouida Alsup, the owner of Sal-Liz and Alexander-Stamm's mother, and Debbie Campbell, a fellow employee who witnessed the latter half of events that occurred in the break room. Both Alsup and Campbell confirmed the version of events given by Alexander-Stamm. Campbell further stated that Bounds had previously expressed that she refused to quit and that "she wanted to get fired so that every time they wrote a check, the store would know they were paying her."

¶ 10. Bounds also maintains that her conduct was not insubordination rising to the level of misconduct as required by section 71-5-513(A)(1)(b). "Insubordination is defined as a constant or continuing intentional refusal to obey a direct or implied order, reasonable in nature, and given by and with proper authority." Gammage v. Miss. Dep't of Emp't Sec. , 113 So.3d 1294, 1297 (¶ 13) (Miss. Ct. App. 2013). "Insubordination may rise to the level of misconduct on certain occasions." Id. at (¶ 15). An isolated incident is not a constant or continuing intentional refusal; however, "[t]his Court has held that when an employee repeatedly refuses to perform a task she was ordered to perform and curses at her supervisor, she has committed misconduct through her insubordination." Id. (citing Miss. Emp't Sec. Comm'n v. Hudson , 757 So.2d 1010, 1014-15 (¶ 12) (Miss. Ct. App. 2000) ).

¶ 11. Here, the record reflects that Bounds exhibited insubordination in the form of a continuing intentional refusal to obey a direct or implied order, both on the day of the incident and prior to it. Alexander-Stamm testified during the hearing that Bounds was notorious for avoiding customers and that she had previously refused to assist them and refused to follow instructions. While Alexander-Stamm acknowledged during the hearing that the store had no written policy mandating employees to voluntarily assist customers, she maintained that it was the common practice of their store to do so. Additionally, the record contains a request for information sent to Sal-Liz from the MDES after Bounds filed for unemployment benefits; in the explanation for why benefits should be denied, Alexander-Stamm wrote that the employees had been advised on December 11, 2016, that the store would be enacting hourly cutbacks due to slow sales. Alexander-Stamm maintained that since learning about the cutbacks until her ultimate termination on December 15, 2016, "Bounds was rude, sullen and non-responsive to questions and request[s] to help customers." This evidence, taken together, demonstrates a pattern of refusal to obey orders, and constitutes insubordination.

¶ 12. Bounds contended during the hearing that in her six years of working at Sal-Liz, she had "never been written up or reprimanded" and that she had received a good evaluation a month or two prior to the date on which she was terminated. However, we deem that fact immaterial. The evidence suggests that Bounds was, in fact, insubordinate on more than one occasion. Accordingly, we see no reason to disturb the Board's decision to deny unemployment benefits.

¶ 13. AFFIRMED.

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


author: WILSON, J., FOR THE COURT: TINDELL, J., DISSENTING:

text:
    William BLACKWELL, Appellant v. William LUCAS, Appellee
    NO. 2017-CA-01492-COA
    Court of Appeals of Mississippi.
    November 20, 2018
    ATTORNEY FOR APPELLANT: EDWARD D. MARKLE
    ATTORNEY FOR APPELLEE: EARL L. DENHAM, Ocean Springs
    EN BANC.
   WILSON, J., FOR THE COURT:

¶ 1. William Lucas and his wife planted some "plants and shrubs" in the front yard of their home in Ocean Springs. Their neighbors, the Blackwells, complained and then filed suit in circuit court, seeking damages and injunctive relief. The "plants and shrubs" are not alleged to be noxious. Nor do they encroach on the Blackwells' property. However, the Blackwells allege that the plants and shrubs obstruct their view across the Lucases' property to the ocean beyond. The circuit court dismissed the Blackwells' complaint for failure to state a claim upon which relief can be granted. We affirm.

ALLEGATIONS AND PROCEDURAL HISTORY

¶ 2. The Lucases own and reside in a house on Front Beach Drive in Ocean Springs. In March 2016, William Blackwell and his wife bought the lot next to the Lucases' home on the same street. On June 9, 2017, the Blackwells sued the Lucases in Jackson County Circuit Court, alleging as follows:

On or about March 26, 2017, the Blackwells' [sic] noticed that Mr. & Mrs. Lucas had intentionally planted shrubs along the northwest side of their property contiguous with the southeast side of the Blackwell's [sic] property line. The shrubs and plants appeared to have been recently planted. If allowed to grow, the plants and shrubs would block the Blackwells' view of the ocean, the sunsets and the beautiful areas normally and typically available to property owners in the Oak Bluff Subdivision.
Shortly thereafter, the Blackwells asked Mr. & Mrs. Lucas to remove the plants and shrubs or to retard their growth so that the Blackwells' view of the ocean and surrounding area would not be blocked. The Lucas' [sic] declined to do so.
The plants and shrubs planted by Mr. & Mrs. Lucas along the common property line have and/or will unreasonably block the view of the Blackwells.
The actions of Mr. & Mrs. Lucas have created a nuisance by blocking the Blackwells' view of the ocean and surrounding area and by using their property in a manner that unreasonably annoys, inconveniences and/or harms the Blackwells.
The actions of Mr. & Mrs. Lucas amounts [sic] to and/or equates [sic] to an invasion of the Blackwells' interest in the use and enjoyment of their land and the invasion is intentional and unreasonable or negligent.
The shrubs and plants installed by Mr. & Mrs. Lucas have no beneficial use and were installed and maintained by them for the purpose of annoying the Blackwells and preventing them from enjoying their property.

¶ 3. The Blackwells allege that the plants and shrubs have caused them "mental pain and suffering." Their complaint sought damages and preliminary and permanent injunctive relief "requiring the removal of the plants and shrubs or to restrict their growth and height so the Blackwells' view of the ocean and surrounding area is not blocked."

¶ 4. The Lucases responded with a motion to dismiss for failure to state a claim upon which relief could be granted. See M.R.C.P. 12(b)(6). They argued that the complaint failed to allege a violation of any legally cognizable right. The circuit court granted the Lucases' motion and dismissed the case. The Blackwells appealed.

ANALYSIS

¶ 5. "A motion to dismiss under M.R.C.P. 12(b)(6) raises an issue of law, which is reviewed de novo." Quitman Cty. , 807 So.2d at 406 (¶ 16). Such a motion "tests the legal sufficiency of a complaint, and an inquiry as to the legal sufficiency is essentially limited to the content of the complaint." State v. Bayer Corp. , 32 So.3d 496, 502 (¶ 21) (Miss. 2010) (quotation marks omitted). "Taking the well-pleaded factual allegations of the complaint as true, the motion should not be granted unless it appears beyond any reasonable doubt that the plaintiff can prove no set of facts in support of [his] claim which would entitle [him] to relief." Quitman Cty. , 807 So.2d at 406 (¶ 16). However, "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to defeat a motion to dismiss." Penn Nat'l Gaming Inc. v. Ratliff , 954 So.2d 427, 431 (¶ 6) (Miss. 2007), superseded by statute on other grounds.

¶ 6. The material factual allegations of the Blackwells' complaint are set out above in paragraph two. The Blackwells do not allege that the Lucases' "plants and shrubs" are noxious. Nor do they allege that the plants or shrubs have encroached on their property. Indeed, the Blackwells do not even tell us what type of plants or shrubs are at issue. Their only allegation of harm is that,"[i]f allowed to grow," these plants and shrubs will one day obstruct their view across the Lucases' property. The Blackwells argue that this gives them a viable cause of action for a "spite fence" or a nuisance. We cannot agree.

¶ 7. To begin with, the complaint's basic premise is flawed. The Blackwells do not have any common law or statutory right to an unobstructed view across their neighbors' property. The Blackwells cite no Mississippi precedent recognizing such a right. Moreover, in Gulf House Association Inc. v. Town of Gulf Shores , 484 So.2d 1061 (Ala. 1985), the Alabama Supreme Court held that residents of a beachside condominium had "no legal entitlement to a view across [their neighbor's] property" or to "a view of the Gulf of Mexico." Id. at 1064. That court reasoned that a landowner does not "acquire such a right to the use of his window, as to deprive [his neighbor] of the right to build on his lot, in any manner his judgment, or fancy may dictate." Id. (quoting Ray v. Lynes , 10 Ala. 63 (1846) ). Thus, the condominium residents, by complaining that construction on their neighbor's property would obstruct their view, "failed to show any legally cognizable adverse effect on the use, enjoyment, and value of their property." Id. We reach the same basic conclusion here. The Blackwells have no legally cognizable right to a view across the Lucases' property. Nor do they have a right to dictate the type or placement of the Lucases' shrubs. In the absence of such a right, their complaint necessarily fails to state a claim upon which relief can be granted.

¶ 8. In support of their claim, the Blackwells rely in part on the only reported Mississippi case about a "spite fence," Green Acres Trust v. Wells , 72 So.3d 1123 (Miss. Ct. App. 2011). Green Acres Trust was decided by an evenly divided Court, so it has no precedential value. In that case, a chancery court ordered the removal of a fourteen-foot-high "spite fence." Id. at 1125-26 (¶ 9). The chancery court relied on a treatise that defined a "spite fence" as "a structure of no beneficial use to the erecting owner or occupant of the premises, but erected or maintained by him solely for the purpose of annoying the owner or occupier of adjoining property." Id. (quoting 9 Powell on Real Property § 62.05 (Wolf ed., 2000) ). The chancery court's order was affirmed by an evenly divided Court. Id. at 1126 (¶ 12). However, as the dissent observed, "there is no Mississippi authority concerning spite fences," and the "claim or cause of action ... has no authority or precedent under Mississippi jurisprudence." Id. at 1127 (¶¶ 17-18) (Griffis, J., dissenting). Because Green Acres Trust was a 5-5 decision, there is still no precedent for such a claim under Mississippi law. Moreover, we decline to recognize a new cause of action for a "spite fence" in a case that does not even involve a fence. Again, this case involves only some unspecified "plants and shrubs" that, "[i]f allowed to grow," allegedly may obstruct the Blackwells' view.

¶ 9. Citing three cases from other states, the dissent thinks it is "conceivable" that the Lucases' shrubs might be a "fence." Post at n.10. However, each of the cited cases held that trees could fit within the definition of a spite fence or "structure" under those states' respective spite fence statutes. Wilson v. Handley , 97 Cal.App.4th 1301, 119 Cal.Rptr.2d 263, 265, 268-69 (2002) (evergreen trees); Dowdell v. Bloomquist , 847 A.2d 827, 829-31 (R.I. 2004) ("towering" forty-foot western arborvitae trees); MJD Props. LLC v. Haley , 189 Wash.App. 963, 358 P.3d 476, 478, 482 (2015) (eighteen-foot cedar tree). Many states apparently have such statutes, some of which date to the nineteenth century. But the Mississippi Legislature has never enacted such a law or recognized such a cause of action. We decline to do so as a matter of common law-particularly in a case that involves only some "plants and shrubs" rather than an actual fence or even a tree. See Barbour v. State ex rel. Hood , 974 So.2d 232, 244 n.19 (Miss. 2008) ("Our constitutional duty ... is to apply the law, and leave matters of public policy to the other branches.").

¶ 10. Nor does the Blackwells' complaint state a cause of action for a "nuisance." "An entity is subject to liability for a private nuisance only when its conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land ...." Biglane v. Under The Hill Corp. , 949 So.2d 9, 14 (¶ 19) (Miss. 2007). In Biglane , the extreme noise from a saloon was deemed a nuisance based on a neighbor's testimony that she was forced to sleep away from her apartment on the weekends, when there was live music and the saloon kept its doors and windows open. Id. at 14-15 (¶¶ 20-28). The Supreme Court affirmed the chancery court's order requiring the saloon to keep its doors and windows closed. Id. at 15 (¶ 28). As another example, in Alfred Jacobshagen Co. v. Dockery , 243 Miss. 511, 515-16, 139 So.2d 632, 633 (1962), the "foul, obnoxious, offensive and sickening odors" emanating from a rendering plant were deemed a nuisance. The court found that the odors were "almost impossible of description" and ordered the plant to take steps to prevent them. Id.

¶ 11. In this case, the Blackwells do not allege that they have been driven from their property or that the Lucases' plants or shrubs prevent them from using their property. There is no allegation that the shrubs are noxious or have any impact on the living conditions on the Blackwells' property. Put simply, there has been no actual or threatened "invasion" of the Blackwells' property. Biglane , 949 So.2d at 14 (¶ 19). Rather, the Blackwells only complain that, "[i]f allowed to grow," the shrubs may one day obstruct their view across the Lucases' property. However, as discussed above, the law does not vest the Blackwells with a right to an unobstructed view across their neighbors' property.

¶ 12. In short, the Blackwells' complaint fails to plead any facts that would support a viable claim for a private nuisance. The complaint contains only conclusory assertions that the Lucases' shrubbery is a "nuisance"

that "unreasonably annoys, inconveniences and/or harms [them]" or "amounts to and/or equates to an invasion of [their] interest in the use and enjoyment of their land." Our Supreme Court has held that such "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to defeat a motion to dismiss." Ratliff , 954 So.2d at 431 (¶ 6).

¶ 13. Finally, the Blackwells' complaint fails to state a claim for the additional reason that it fails to allege that the "plants and shrubs" have actually obstructed their view. The complaint only asserts that, "[i]f allowed to grow," the shrubbery will obstruct their view at some unspecified point in the future. But sometimes plants die. Other times they do not grow very tall. A complaint must be based on something more than speculation that a neighbor's shrubs might one day grow tall enough to annoy. If for no other reason, the Blackwells' complaint was properly dismissed for failure to allege any present injury or "an imminent threat of irreparable harm for which there is no adequate remedy at law." A-1 Pallet Co. v. City of Jackson , 40 So.3d 563, 569 (¶ 20) (Miss. 2010) (holding that such a showing is required to obtain a preliminary or permanent injunction) (quoting Ruff v. Estate of Ruff , 989 So.2d 366, 369-70 (¶ 13) (Miss. 2008) ).

¶ 14. The Blackwells' complaint fails to state any claim upon which relief can be granted. Accordingly, the judgment of the circuit court is AFFIRMED .

BARNES, CARLTON, FAIR AND GREENLEE, JJ., CONCUR. TINDELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., IRVING AND GRIFFIS, P.JJ., AND WESTBROOKS, J.

TINDELL, J., DISSENTING:

¶ 15. At a minimum, the Blackwells were required to disclose, in general terms, what the Lucases did wrong and when and where the alleged wrong took place. Ill. Cent. R.R. Co. v. Adams , 922 So.2d 787, 790 (¶ 8) (Miss. 2006). The majority correctly states that the Blackwells have no legal right to an unobstructed view across their neighbors' property. However, the Blackwells' claims, as pled, take issue with the Lucases' alleged spiteful intent and the nuisance created by the placement of the plants and shrubs, not that they are entitled to an unobstructed view. Insomuch as the Blackwells have sought a claim for a spite fence and a private nuisance, it is my opinion that the complaint was sufficiently pled. In addition, our appellate courts have repeatedly found it is error for a circuit court to consider matters outside the pleadings without converting the Rule 12(b)(6) motion into a Rule 56 motion for summary judgment. State v. Bayer Corp. , 32 So.3d 496, 503 (¶ 24) (Miss. 2010) ; see also Jourdan River Estates LLC v. Favre , 212 So.3d 800, 803 (¶ 5) (Miss. 2015) ; Wilbourn v. Equitable Life Assurance Soc'y , 998 So.2d 430, 435 (¶ 13) (Miss. 2008). It is apparent from the record that the circuit court, in granting the motion to dismiss, considered factual findings outside the complaint without converting the motion into one for summary judgment. For these reasons I would reverse and remand this case for further proceedings.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., AND WESTBROOKS, J., JOIN THIS OPINION.

      On a motion to dismiss under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure, we take "the well-pleaded factual allegations of the complaint as true." State v. Quitman Cty. , 807 So.2d 401, 406 (¶ 16) (Miss. 2001).

      The pleadings do not provide a first name for either Mrs. Blackwell or Mrs. Lucas.

      The Blackwells complain that the circuit court's order granting the Lucases' motion to dismiss relied in part on factual representations made by the Lucases in their motion or during argument on the motion. The circuit court erred to the extent that it considered facts outside the complaint; however, our standard of review is de novo, and our review is limited to the content of the complaint. See Stroud v. Progressive Gulf Ins. Co. , 239 So.3d 516, 526 (¶ 31) (Miss. Ct. App. 2017) ("We review the record de novo without deference to the circuit court's reasoning or conclusions. Accordingly, this Court's decision on appeal does not turn on or require approval or disapproval of the precise reasoning that the circuit court gave for its ruling."). Thus, the circuit court's discussion of additional facts is of no moment.

      The Blackwells have a right to cut and remove any part of a plant or shrub that grows on or overhangs their property. See Rogers v. Ford , 57 So.3d 681, 683 (¶¶ 7-9) (Miss. Ct. App. 2011).

      See, e.g. , Mitchell v. Atlas Roofing Mfg. Co. , 246 Miss. 280, 297, 149 So.2d 298, 305 (1963) ("A cause of action arises out of an antecedent primary legal right with which the law invests a person and for the infringement of which it gives him a remedy. The right to maintain an action depends upon the existence of a cause of action which involves a combination of a right on the part of the plaintiff and the violation of such right by the defendant. The existence of a legal right is, accordingly, an essential element of the cause of action, inasmuch as a plaintiff must recover on the strength of his own case instead of on the weakness of the defendant's case, since it is his right, instead of the defendant's wrongdoing, that is the basis of recovery. That right or duty means a legal right or duty, and not a mere moral obligation which is enforceable neither in law or in equity.").

      "[A] majority of all sitting judges is required to create precedent ...." Buffington v. State , 824 So.2d 576, 580 (¶ 15) (Miss. 2002).

      The fence at issue was made of wire mesh with green slats running through it. Green Acres Trust , 72 So.3d at 1125 (¶ 6). Although five families lived around the defendants' property, the defendants only built the fence along their border with the plaintiffs' property. The defendants "left a small opening in the fence allowing the [plaintiffs] a view of [a] septic tank." Id. at 1126 (¶ 10).

      For this reason, we also reject the Blackwells' argument that the plants and shrubs violate a municipal ordinance and, therefore, constitute a "nuisance per se." By its plain terms, the ordinance only restricts the height of "solid fence or wall." It does not apply to plants or shrubs.

      Some of these statutes apply only to fences that "unnecessarily exceed" a specific height. See Cal. Civ. Code § 841.4 (ten feet); R.I. Gen. Laws § 34-10-20 (six feet). The Blackwells' complaint fails to allege the height of the plants and shrubs at issue here.

      While Mississippi has never addressed this issue, other states have determined that, depending on the type of plants and the manner in which they are planted, trees, shrubs, and plants may constitute a structure for purposes of a spite fence. See Wilson v. Handley , 97 Cal.App.4th 1301, 119 Cal.Rptr.2d 263, 269 (2002) (concluding that a row of trees planted on or near the boundary line between adjoining parcels of land can be a spite fence); Dowdell v. Bloomquist , 847 A.2d 827, 831 (R.I. 2004) (affirming a court's determination that, based upon the relative positioning of trees on the defendant's land, the trees' towering presence could be considered a spite fence); MJD Props. LLC v. Haley , 189 Wash.App. 963, 358 P.3d 476, 482 (2015) (concluding that a single tree artificially located and planted with spiteful intent might constitute a structure). Like those states, I believe it is conceivable that the shrubs installed by the Lucases could, for all practical purposes, constitute a spite fence.


author: CARLTON, J., FOR THE COURT:

text:
    Arthur MINOR, Appellant v. RGT MANAGEMENT INC. and Wausau Underwriters Insurance Company, Appellees
    NO. 2018-WC-00398-COA
    Court of Appeals of Mississippi.
    November 20, 2018
    ATTORNEYS FOR APPELLANT: ROGEN K. CHHABRA, Jackson, CAROLINE SCOTT HOMMELL
    ATTORNEY FOR APPELLEES: GINGER MOORE ROBEY, Jackson
    BEFORE IRVING, P.J., CARLTON AND FAIR, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. Arthur Minor, a claimant in a workers' compensation action, appeals rom an order of the Mississippi Workers' Compensation Commission imposing $500 in sanctions upon his attorneys for delaying pursuit of his claim without reasonable grounds under Mississippi Code Annotated section 71-3-59(2) (Rev. 2011). We reverse and render the Commission's $500 sanction against Minor's attorneys.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Arthur Minor suffered compensable injuries during the course of his employment with RGT Management Inc. as a shift manager/cook for Taco Bell. A workers' compensation claim on Minor's behalf was filed against RGT (Employer) and Wausau Underwriters Insurance Company (Carrier) by his first lawyer in March 2013. That lawyer's motion to withdraw from representation of Minor was granted by the Administrative Judge (AJ) on September 3, 2015. The order provided, in relevant part, as follows:

Claimant is allowed thirty (30) days from the date of this Order in which to obtain representation by another attorney or continue prosecution of this claim without legal representation. Failure to do so may result in the dismissal of this claim.

¶ 3. The same AJ dismissed Minor's workers' compensation claim by order dated November 2, 2015, based upon the AJ's determination that Minor had failed to prosecute his claim. The AJ found that her September 3, 2015 order had "granted Mr. Minor thirty (30) days to obtain counsel or announce his intent to pursue this claim without legal representation" and that Minor had failed to comply with that provision. The order further provided that "[t]o request reinstatement of this claim, Claimant must timely file a motion to reinstate with the Commission."

¶ 4. The AJ's November 2, 2015 order was not appealed, and thus it became a final order in twenty days, pursuant to Mississippi Code Annotated section 71-3-47 (Rev. 2011). Minor engaged new counsel (his current counsel), and a motion to reinstate Minor's claim was filed on his behalf on December 4, 2015.

¶ 5. Over a year later, on February 15, 2017, the Commission issued a notice of hearing on Minor's motion, setting a hearing for March 20, 2017. The Employer/Carrier filed a response to Minor's motion to reinstate his claim on March 10, 2017, seeking dismissal of Minor's claim. The Employer/Carrier argued that the Commission no longer had jurisdiction over Minor's claim because no action had been taken on Minor's motion to reinstate since it was filed in December 2015.

¶ 6. The AJ denied Minor's motion to reinstate by an order dated April 27, 2017, finding that under Mississippi Code Annotated section 71-3-53 (Rev. 2011) and the applicable case law, the Commission no longer had jurisdiction to consider the motion because Minor had done nothing after his motion to reinstate was filed on December 4, 2015.

¶ 7. Minor appealed the AJ's order, requesting review before the full Commission. He argued that the filing of his motion to reinstate was sufficient to satisfy the one-year time frame set forth in section 71-3-53 because the Commission's procedural rules did not require that the motion be set for oral argument. Minor asserted that because his motion could be decided without a hearing, he was not required to do anything further once his motion to reinstate was filed.

¶ 8. Minor also filed a motion to introduce additional evidence. In that motion he sought to introduce two exhibits: (A) an affidavit of Caroline Hommell, his counsel, detailing efforts made to check on the status of the case and set a hearing; and (B) an email from a Commission employee responding to the status inquiry. In proposed exhibit A (the Hommell affidavit), Ms. Hommell attested that the motion to reinstate was filed on November 30, 2015; that on April 25, 2016, an employee in her law office contacted an employee at the Commission, Ms. Shirley Williams, to check on the status of the case and to see if anything needed to be done; that Ms. Williams responded the next day with an email stating: "This file is closed! You must set your motion to reinstate filed in December" (this email is proposed exhibit B); and that in August 2016 an employee in Ms. Hommell's law office left a message for the AJ's assistant to obtain hearing dates, but her message was not returned.

¶ 9. By an order dated October 24, 2017, the Commission reversed the AJ's decision and reinstated Minor's claim, finding that the filing of Minor's motion to reinstate satisfied the time requirements of section 71-3-53. The Commission, however, also imposed a $500 sanction against Minor's counsel based upon his counsel's inaction following the filing of the motion to reinstate. The Commission recognized that Minor's counsel had addressed the delay issue by filing a motion to introduce additional evidence, and the Commission granted that motion. Nevertheless, the Commission found:

[B]ased upon the Commission's review of the entire record in this claim, we find that Claimant's current counsel filed the Motion to Reinstate, but their subsequent inaction delayed this claim without reasonable ground. Such delay warrants the imposition of a $500 sanction against current counsel for Claimant. Miss. Code Ann. § 71-3-59.

¶ 10. Minor filed a Motion for Reconsideration or, Alternatively, to Sever Sanctions into Separate Cause of Action on November 7, 2017, requesting that the Commission "reconsider the sanctions altogether and set them aside, or ... sever the sanctions issue into a separate cause of action that can be appealed independently without prejudicing and even further delaying Claimant's right to move forward on the claim."

¶ 11. The Commission denied this motion on February 15, 2018, holding that "[h]aving studied the record and the applicable law, the Commission finds no evidence warranting a change in the Commission Order previously entered on October 24, 2017. Accordingly, the Claimant's Motion to Reconsider or Alternatively to Sever Sanctions into Separate Cause of Action is denied."

¶ 12. The parties subsequently reached a compromise settlement agreement on Minor's workers' compensation claim. The Commission approved the settlement by order dated March 7, 2018. That order contained a paragraph preserving Minor and his counsel's ability to pursue an appeal with respect to the sanctions issue, as follows:

The parties recognize that there is an outstanding order for sanctions against claimant's counsel, and that such issue is currently pending before the Commission. The employer and carrier have no interest in the outcome of that issue and have no position or objection to claimant continuing to appeal, if so desired. Claimant and his counsel through this settlement, do not waive any rights to continue pursuing the reconsideration and/or appeal of the sanctions.

¶ 13. On March 8, 2018, Minor filed his notice of appeal "from the Full Commission Order" and also filed a detailed "Statement of Issue[s] on Appeal" on March 15, 2018, itemizing the reasons why the $500 sanction should not be imposed upon Minor's counsel.

¶ 14. The sole issue Minor raises on appeal is "whether the $500 sanction awarded by the Commission against [his] counsel pursuant to [ section] 71-3-59(2) [was] appropriate even though his counsel filed a timely motion to reinstate and had no obligation under the rules to set the case for oral argument." The Employer confirmed in its appellee's brief that it takes no position as to whether the sanction is appropriate.

DISCUSSION

I. Standard of Review

¶ 15. "In workers' compensation cases, this Court's review is limited to determining whether the Commission's decision was supported by substantial evidence, was arbitrary and capricious, was beyond the scope or power of the agency to make, or violated a party's constitutional or statutory rights." Wright v. Turan-Foley Motors Inc ., No. 2016-WC-01264-COA, 269 So.3d 160, 167 (¶ 26), 2018 WL 506696, at *5 (¶ 26) (Miss. Ct. App. Jan. 23, 2018). "Substantial evidence, though not easily defined, means something more than a mere scintilla of evidence, and that it does not rise to the level of a preponderance of the evidence. It may be said that it means such relevant evidence as reasonable minds might accept as adequate to support a conclusion." Blackwell v. Howard Indus. Inc ., 243 So.3d 774, 778 (¶ 6) (Miss. Ct. App. 2018).

II. Imposition of Sanctions

¶ 16. The Commission in this case reversed the AJ's dismissal of Minor's claim, finding that the filing of Minor's motion to reinstate on December 4, 2015, which was within one year of the AJ's order of dismissal, satisfied section 71-3-53's one-year time requirement, and tolled the running of that statute. Nevertheless, the Commission also imposed a $500 sanction against Minor's counsel, finding that, based upon its review of the entire record, their subsequent inaction after filing the motion to reinstate Minor's claim "delayed [Minor's] claim without reasonable ground," thus warranting a $500 sanction against them pursuant to section 71-3-59(2). As noted, that statute provides, in relevant part, as follows:

If the full commission determines that proceedings in respect to a claim have been instituted, continued or delayed, ... without reasonable ground, the full commission ... may levy a civil penalty not to exceed Ten Thousand Dollars ($10,000.00) against such party, or attorney advising or assisting such party, or both, payable to the commission.

¶ 17. On appeal, Minor asserts that once his counsel timely filed a motion to reinstate his claim in December 2015, there is no proof in the record that his lawyers' subsequent inaction delayed his claim "without reasonable ground" under section 71-3-59(2) because the Commission's procedural rules did not require them to do anything beyond filing the motion to reinstate.

¶ 18. A review of section 71-3-53 provides that if a party files an application for reinstatement based on a mistake in a determination of fact, then the Commission may issue a new compensation order. The statute, however, does not require the claimant to request a hearing on the motion.

¶ 19. We now turn to the applicable Commission procedural rules to determine if any duty existed to require Minor to request a hearing once the motion was timely filed. Minor's motion to reinstate was filed December 4, 2015. The rule governing motion practice in effect at that time was Commission Procedural Rule 22 (2001). This rule is substantively the same as Commission Procedural Rule 2.22 (2018), which is the rule Minor references in his appellant's brief. To be accurate, we will refer to Procedural Rule 22.

¶ 20. Procedural Rule 22 does not require that the motion be set for oral argument. It provides that "[i]f a party desires oral argument on a motion, the party shall notice the motion for motion day or, at the discretion of the [AJ], other agreed time and place, before the assigned [AJ]." (Emphasis added). Because Minor's counsel was not obligated to do anything further under the Commission's procedural rules once Minor's motion to reinstate was timely filed in December 2015, we find that imposing the $500 sanction for unreasonable delay under section 71-3-59(2) was inappropriate.

¶ 21. Our decision in Wright v. Turan-Foley Motors Inc . is instructive. In that case, we reversed the Commission's imposition of $5,000 in sanctions against claimant's counsel under section 71-3-59(2). Wright , 269 So.3d at 173-74 (¶ 47), 2018 WL 506696, at *10 (¶ 47). The Commission sanctioned claimant's counsel based on its determination that counsel's subpoena and discovery questioning of an expert witness was "oppressive in nature and without reasonable ground." Id. at 167 (¶ 23), at *4 (¶ 23). Finding the sanction inappropriate, this Court observed that there were "no rules or reported cases [that] clearly prohibited the conduct for which the Commission imposed sanctions," and, thus, "[u]nder these circumstances, counsel's efforts to represent his client by exploring the issue of financial bias had at least a 'colorable' basis in the law." Id. at 174 (¶ 47), at *10 (¶ 47). The same is true here. No rule or reported case prohibited counsel's conduct-indeed, no statute, rule, order, or case affirmatively required Minor's counsel to take any further action after the motion to reinstate was filed. For this reason, we find that the sanctions were unwarranted in this case.

¶ 22. Under the controlling statute, section 71-3-53 ; Procedural Rule 22; and applicable case law, we find no breach of any affirmative duty on the part of Minor's counsel in not requesting a hearing on the motion to reinstate Minor's claim. As such, we find that the Commission erred by imposing the $500 sanction against Minor's counsel pursuant to section 71-3-59(2). Wright , 269 So.3d at 173-74 (¶¶ 46-47), 2018 WL 506696, at *10 (¶¶ 46-47). The sanction imposed on Minor's counsel is reversed and rendered.

¶ 23. REVERSED AND RENDERED.

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

      Mississippi Code Annotated section 71-3-59 (Rev. 2011) provides, in relevant part, that "[i]f the full commission determines that proceedings in respect to a claim have been ... delayed ... without reasonable ground, the full commission ... may levy a civil penalty not to exceed Ten Thousand Dollars ($10,000.00) against such party, or attorney advising or assisting such party, or both, payable to the commission."

      Mississippi Code Annotated section 71-3-47 (Rev. 2011) provides that a decision by a "duly designated representative of the commission [i.e., an AJ] ... shall be final unless within twenty (20) days a request or petition for review by the full commission is filed."

      Mississippi Code Annotated section 71-3-53 (Rev. 2011) provides, in relevant part, as follows:
      Upon its own initiative or upon the application of any party in interest on the ground of a change in conditions or because of a mistake in a determination of fact, the commission may, ... at any time prior to one (1) year after the rejection of a claim, review a compensation case, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation.

      The motion to reinstate was actually stamped filed as of December 4, 2015.

      The Commission also found that the AJ's April 27, 2017 order contained a mistake of fact because the AJ dismissed Minor's claim based upon her determination that Minor did not comply with her September 3, 2015 order allowing Minor's original counsel to withdraw when Minor did not notify the Commission of his intent to pursue his claim. The Commission found that there was no such requirement in the AJ's September 3, 2015 order, so it reversed the AJ's April 27, 2017 order for this additional reason.

      The $500 sanction at issue in this case was against Minor's counsel. Minor, however, is the only named appellant; his lawyers are not named. Although no jurisdictional challenge has been made, we must address issues of jurisdiction on our own motion. Hamilton v. Southwire Co. , 191 So.3d 1275, 1279 (¶ 15) (Miss. Ct. App. 2016). Under applicable precedent, the failure to include Minor's lawyers as appellants does not bar us from addressing this appeal on the merits. See Johnson v. Boydston , 605 So.2d 727, 731 (Miss. 1992), as supplemented on denial of reh'g (Sept. 10, 1992) (The Mississippi Supreme Court found that a notice of appeal failing to list a consortium plaintiff as an appellant was sufficient to preserve the appeal on his behalf where there was no surprise or prejudice to the appellee.); Vicksburg Ref. Inc. v. Energy Res. Ltd. 1977-A , 512 So.2d 901, 902 (Miss. 1987) (Vicksburg Refining appealed from an order of the trial court imposing sanctions upon its attorney for abuse of court processes; the Mississippi Supreme Court addressed the appeal on the merits although Vicksburg Refining's counsel was not an appellant.).
      We also find that Minor's appeal from the October 24, 2017 full-Commission order is timely. The filing of Minor's motion to reconsider or, alternatively, to sever the sanctions issue on November 7, 2017, tolled the thirty-day time period for appealing a full-Commission order under Mississippi Code Annotated section 71-3-51 (Rev. 2011). See Day Detectives Inc. v. Savell , 291 So.2d 716, 720-21 (Miss. 1974). The Commission denied Minor's motion to reconsider on February 15, 2018, and Minor filed his notice of appeal within thirty days, on March 8, 2018.

      The Employer, however, filed an appellee's brief in order to correct a statement made in Minor's principal brief that the Employer and Carrier contributed to the delay in the proceedings because they were procedurally required to file a response to Minor's motion to reinstate within fifteen days of service of that motion, which they did not do. The Employer pointed out that Commission Procedural Rule 22(c), in effect in 2015 when Minor filed his motion to reinstate, did not require that any response be filed, as follows: "a response [to a motion] is not required, but a party desiring to file a response shall do so within fifteen (15) days after the date of service of the motion...." In his reply brief, Minor acknowledged that the Employer was correct, and that he had mistakenly cited to the new Commission Procedural Rule 2.22(c), effective January 18, 2018, which requires that a response be filed within fifteen days.

      See Miss. Code Ann. § 71-3-53.

      Nor do we find that the requirement under Procedural Rule 22 that "[a] proposed order must accompany each nondispositive motion," applies to the motion to reinstate filed in this case, as it is not a "nondispositive" motion.

      The Court's use of the phrase "colorable basis in law" was in reference to use of that phrase in an analogous context where the Mississippi Supreme Court was addressing the impositions of sanctions under Mississippi Rule of Civil Procedure 11 for alleged frivolous pleadings. Estate of McLemore v. McLemore , 63 So.3d 468, 490 (¶ 68) (Miss. 2011). The supreme court held that "pleadings found to be justiciable, viable, or colorable are not for the purpose of harassment or delay; thus, sanctions are inappropriate." Id.

      See Miss. Code Ann. § 71-3-53 ; see also Dapsco Inc. v. Upchurch's Dependent , 243 Miss. 427, 435, 138 So.2d 287, 290 (1962).


author: GREENLEE, J., FOR THE COURT:

text:
    Faron YOUNG a/k/a Faron Wayne Young a/k/a Faron W. Young, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00357-COA
    Court of Appeals of Mississippi.
    November 27, 2018 Rehearing Denied March 12, 2019
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: HUNTER NOLAN AIKENS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LISA L. BLOUNT
    BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. Following a jury trial in the Jones County Circuit Court, Faron Young was convicted of statutory rape and kidnapping. The circuit court sentenced Young, as a habitual offender, to serve two concurrent terms of thirty years in the custody of the Mississippi Department of Corrections (MDOC).

¶ 2. On appeal, Young argues his convictions should be reversed because: (1) his indictment for statutory rape was insufficient; (2) Jury Instruction S-2A constructively amended his indictment for kidnapping; and (3) the evidence was insufficient to support his kidnapping conviction. For the reasons discussed below, we affirm Young's convictions and sentences for statutory rape and kidnapping.

BACKGROUND

¶ 3. On May 26, 2015, fourteen-year-old "Jane" was living in Laurel, Mississippi with her mother, "Susan," stepfather, and two brothers. At about 5 p.m. that evening, Jane and one of her brothers started arguing, and their mother told them to go to their rooms. Jane slammed a door on her way to her room, and her mother, Susan, followed her, reaching to grab Jane's shoulder. Once Jane got to her room, she slammed her bedroom door and locked it. Through the bedroom door, Susan heard Jane telling someone on the phone that "her mother beat her." Susan told Jane to stay in her room and cool off. Shortly after, Susan saw Jane walk out the back door toward the pond behind their home, where Jane often went to be alone.

¶ 4. Unbeknownst to her mother, Jane had phoned Young from her bedroom to ask that he pick her up. Jane had known Young since she was a young child; Susan and Young used to date, and Young was the father of Jane's youngest brother. When Jane left her house, she walked to the Magnolia Motel on Highway 11, where Young picked her up.

¶ 5. Jane testified that after Young picked her up, they drove to a gas station in Laurel and then drove to see a piece of land where Young wanted to put a camper. Jane said that once they got there, she and Young had consensual sex in the back of his truck. Jane testified that she was menstruating at that time. She removed her tampon and underwear. Then Young got on top of her and inserted his penis in her vagina. Jane said Young withdrew his penis to ejaculate into a towel.

¶ 6. Meanwhile, Susan became concerned when she did not find Jane at the pond behind their house. Susan texted and called Jane but received no answer or response. Susan then called Young because he was "like a father to Jane," and when Jane would sometimes refuse to talk to Susan, she would talk to Young. But Young told her that he had not heard from Jane, had not talked to her, and did not know where she was. Concerned, Susan called the police. As it started getting dark outside, Susan called Young a second time and told him she was worried about Jane and had called the police. Young did not tell Susan that Jane was with him.

¶ 7. Jane testified that after she and Young had sex, they drove to Young's home, where he and his girlfriend, Casey Holifield, lived with their daughter. Jane watched a movie while Young showered. Then, Young went to Jane's house while she stayed at his home. Young later returned and drove Jane to a cemetery near Walmart, where he dropped her off. It was approximately 2 a.m. in the morning. Jane testified that she walked to Walmart, called her mother, and was picked up by police.

¶ 8. Deputy Carter testified that he went to the Walmart on a dispatch call, where he found Jane, and transported her to South Central Hospital's emergency room to have a sexual-assault examination performed.

¶ 9. Emergency-room physician Dr. Thomas Bailey testified that he performed a sexual-assault examination on Jane and took swabs from her vulval and vaginal regions. Dr. Bailey testified that his physical examination of Jane neither confirmed nor negated sexual abuse. He added that he would not expect to find physical evidence if Jane had engaged in consensual sex. Dr. Bailey acknowledged that, during the interview, Jane denied having had sexual intercourse.

¶ 10. Brandy Goodman of the Mississippi Forensics Laboratory testified as an expert forensic scientist. Goodman testified that she tested Jane's vulval and vaginal swabs for the presence of semen by performing a screen for seminal fluid and a microscopic examination for sperm cells. Goodman testified that serological screening of Jane's vulval and vaginal swabs tested negative for the presence of sperm cells, but her microscopic examination for the presence of sperm cells tested positive. On cross-examination, Goodman testified that it was highly unlikely that sperm could be transferred to a vagina if a woman handled a towel with ejaculate on it and then touched her vaginal area or inserted a tampon, but she could not rule it out.

¶ 11. Mississippi Forensics Laboratory DNA analyst Joseph Heflin testified that he performed a DNA analysis on Jane's vulval and vaginal swabs and the known DNA reference samples from both Jane and Young. Helfin testified that the male DNA found on Jane's vaginal swabs was consistent with Young's DNA. The odds the male DNA belonged to someone other than Young were one in over ten billion.

¶ 12. Deputy Robert Little of the Jones County Sheriff's Department testified to his involvement in the investigation. Deputy Little said that he briefly questioned Jane at Walmart and learned that she had been with Young since roughly 5 p.m. that day. Deputy Little said he then headed toward Young's house and happened to see Young in his vehicle along the way. Deputy Little initiated a traffic stop and read Young his Miranda rights. Young initially denied knowing anything about Jane and denied having seen her. But after additional questioning, Young admitted to picking Jane up earlier that day and later dropping her off by Walmart. Young told Little that he had been scared of getting in trouble and had deleted all of the text messages between him and Jane.

¶ 13. Deputy Little further testified that he drove to the piece of land where the sexual encounter occurred and found a used tampon, which he logged as evidence. Little said that he also searched Young's truck and found some hair samples and a towel in the backseat, which were logged as evidence but not tested for DNA.

¶ 14. Investigator Thad Windham with the Jones County Sheriff's Office testified that he assisted in obtaining a consent-to-search form from Young and took a recorded statement from Young on May 27, 2015, the day after his arrest. An edited version of Young's statement was played for the jury and admitted into evidence. In his statement, Young said that he picked Jane up from the Magnolia Motel at her request and drove to a piece of land he was considering putting a trailer on. Young denied having sexual intercourse with Jane. When Investigator Windham asked about the used tampon found on the land where Jane and Young had been, Young said "she had to pee."

¶ 15. Following deliberations, the jury found Young guilty of kidnapping and statutory rape. Young filed a motion for a judgment notwithstanding the verdict or a new trial, which the circuit court denied. Young has timely appealed, challenging his indictment for statutory rape and kidnapping, and the sufficiency of the evidence of his kidnapping conviction.

ANALYSIS

I. Indictment for Statutory Rape

¶ 16. Mississippi Code Annotated section 97-3-65 (Rev. 2014) provides that statutory rape is committed when:

(a) Any person seventeen (17) years of age or older has sexual intercourse with a child who:
(i) Is at least fourteen (14) but under (16) years of age;
(ii) Is thirty-six (36) or more months younger than the person; and
(iii) Is not the person's spouse; or
(b) A person of any age has sexual intercourse with a child who:
(i) Is under the age of fourteen (14) years;
(ii) Is twenty-four (24) or more months younger than the person; and
(iii) Is not the person's spouse.

Young's indictment for statutory rape used language from section 97-3-65(1)(a) and section 97-3-65(1)(b). It alleged that when Young engaged in sexual intercourse with Jane, she was fourteen years old and Young was twenty-four or more months older than her. On August 31, 2016, the State filed a motion to amend the indictment to reflect that Jane was "at least fourteen (14) but under (16) years of age" and that Young was "thirty-six (36) or more months older" than her. The trial court entered an order allowing the amendment, finding the amendment was one of form and not substance.

¶ 17. On appeal, Young argues his indictment for statutory rape was fatally defective because it contained language from both section 97-3-65(1)(a) and section 97-3-65(1)(b). Young further argues that the trial court's amendment of his indictment was substantive because it materially altered the facts of the offense and his defense to the indictment as originally drawn.

¶ 18. Whether an indictment is fatally defective is a question of law, which we review de novo. Moten v. State , 20 So.3d 757, 759 (¶ 4) (Miss. Ct. App. 2009). The purpose of an indictment is to satisfy the constitutional requirement that a "defendant be informed of the nature and cause of the accusation ...." U.S. Const. amend. VI ; Miss. Const. art. 3, § 26 ; see also URCCC 7.06 (providing that an indictment must include a "plain[,] concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation"). Furthermore, "[a]n indictment must contain (1) the essential elements of the offense charged, (2) sufficient facts to fairly inform the defendant of the charge against which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense." Davis v. State , 171 So.3d 537, 540 (¶ 11) (Miss. Ct. App. 2015) (quoting Gilmer v. State , 955 So.2d 829, 836-37 (¶ 24) (Miss. 2007) ).

¶ 19. Before amendment, Young's indictment cited section 97-3-65(1)(a) and alleged:

FARON WAYNE YOUNG (DOB [Nov. 1979] )
A male person over 18 years old, at the time of said offense[:]
Count I: Statutory Rape [O]n or about the 27th day of May, 2015 A.D., ... engage[d] in sexual intercourse with [Jane] (Dob: [Nov. 2000] ), a female child of fourteen (14) years of age, and that ... Faron Wayne Young being ... twenty-four (24) or more months older than the said child, and is not the child's spouse.

Thus, Young's indictment clearly stated that he was being charged with statutory rape in violation of section 97-3-65(1)(a). The indictment also listed the date of the offense and Jane's birthday; therefore, Young was informed that the offense occurred when Jane was fourteen. We find the unamended indictment was not so flawed as to warrant reversal. We thus proceed to review whether the trial court's amendment of Young's indictment was substantive.

¶ 20. An "amendment to an indictment must be of form and not substance to be permissible." Chandler v. State , 789 So.2d 109, 111 (¶ 4) (Miss. Ct. App. 2001). To be an amendment of form, an amendment must not (1) "materially alter facts which are the essence of the offense on the face of the original indictment" or (2) "materially alter a defense to the original indictment so as to prejudice the defendant's case." Id. The amendment will not prejudice the defendant's case when "the defense as it originally stood would be equally available after the amendment is made." Crawford v. State , 754 So.2d 1211, 1219 (¶ 17) (Miss. 2000).

¶ 21. Young claims that because the amendment to his indictment changed his and Jane's ages, it materially altered the essential facts of the offense. But both Young's indictment, in its original and amended forms, put him on notice that he was charged with the statutory rape of a fourteen year old. We do not find that amendment materially altered the essence of the offense. Nor do we find Young's defense was prejudiced by the amendment. Young's defense to the indictment, a general denial, was equally available to him before and after the indictment's amendment. Id. This issue is without merit.

II. Variance Between Kidnapping Indictment and Jury Instruction

¶ 22. Count Two charged Young with violating section 97-3-53 (Rev. 2014), by kidnapping or forcibly seizing and confining Jane, who was under sixteen years old, against the will of her parents. But at trial, the court granted a jury instruction that slightly differed from Count Two, permitting the jury to find Young guilty on the count if it found "Young did ... forcibly seize, inveigle , or kidnap [Jane], a child under the age of sixteen (16) years against the will of her parents." Young's trial counsel did not object to this instruction, and the jury found Young guilty of kidnapping under this count.

¶ 23. On appeal, Young claims for the first time that the instruction constructively amended his indictment. He acknowledges his waiver but requests plain-error review and reversal of his kidnapping conviction. Although Young's failure to object to S-2A bars review of this issue, we find Young suffered no substantial injustice from the variance.

A. Waiver

¶ 24. Again, "the primary purpose of an indictment 'is to give the defendant fair notice of the crime charged.' " Faulkner v. State , 109 So.3d 142, 146 (¶ 13) (Miss. Ct. App. 2013) (quoting Nix v. State , 8 So.3d 141, 144-45 (¶ 16) (Miss. 2009) ). The indictment must contain "the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation." URCCC 7.06. And "once the grand jury hands down a true bill that alleges an accused committed a particular crime by engaging in certain conduct-absent waiver or a request for a lesser included offense-the accused must be prosecuted for that crime, and no other." Decker v. State , 66 So.3d 654, 656 (¶ 6) (Miss. 2011) (emphasis added). Here, there was such a waiver.

¶ 25. Young conceded he did not object to S-2A as constructively amending the indictment, which may serve as a procedural bar to appellate review. See Faulkner v. State , 109 So.3d 142, 146 (¶ 12) (Miss. Ct. App. 2013) (explaining that failure to object to a variance between an indictment and a jury instruction renders the issue procedurally barred on appeal). Waiver aside, we find no reversible error.

B. Plain-Error Review of the Variance

¶ 26. Under the plain-error doctrine, this Court may exercise discretion to correct an obvious error the defendant failed to properly raise-but only where the error affects the defendant's fundamental, substantive rights. Conners v. State , 92 So.3d 676, 684 (¶ 15) (Miss. 2012) (citing Smith v. State , 986 So.2d 290, 294 (¶ 10) (Miss. 2008) ). We will correct such an error if it "resulted in a manifest miscarriage of justice or 'seriously affects the fairness, integrity[,] or public reputation of judicial proceedings.' " Id. (quoting Brown v. State , 995 So.2d 698, 703 (¶ 21) (Miss. 2008) ).

¶ 27. Considering whether Young's substantial rights were violated, we note that "[n]ot all variances between the indictment and instructions constitute a constructive amendment, nor do they rise to plain error." Bell v. State , 725 So.2d 836, 855 (¶ 61) (Miss. 1998). "To properly categorize an instruction as error, its variance from the language of the indictment must be material." Faulkner , 109 So.3d at 147 (¶ 16) (internal quotation marks omitted) (quoting Nix , 8 So.3d at 145 (¶ 16) ). "While trial judges should generally strive to craft jury instructions that track the indictment's language, an instruction is not necessarily fatally defective for failure to do so if the instruction accurately follows the requisite elements of the crime." Id. (internal quotation mark omitted) (quoting Duplantis v. State , 708 So.2d 1327, 1344 (¶ 76) (Miss. 1998) ).

¶ 28. Assessing the effect of the variance on the integrity of Young's trial, we find that S-2A did not substantially alter the requisite elements of kidnapping. The essence of the charged offense remained the same, as the instruction still required the jury to find beyond a reasonable doubt that Young kidnapped Jane, a minor child under the age of sixteen, against the will of her parents. Further, we find S-2A's use of "inveigle," which appears in the statutory definition of kidnapping, did not prejudice Young's defense. Young defended on the basis that Jane called him to pick her up, voluntarily left with him, and was never held against her will. Young also argued in his defense that Jane's mother never instructed him not to pick Jane up. Regardless of whether the indictment charged Young with forcibly seizing, inveigling, or kidnapping Jane, Young's defense would still have been the same. Finding no reversible error, we affirm.

III. Sufficiency of the Evidence of Kidnapping

¶ 29. "In considering whether the evidence is legally sufficient to sustain a conviction, ... the critical inquiry is whether the evidence shows beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed." Russell v. State , 924 So.2d 604, 608 (¶ 8) (Miss. Ct. App. 2006)

(internal quotation marks omitted). "The relevant question is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Green v. State , No. 2017-KA-00770-SCT, 269 So.3d 75, 79, 2018 WL 5076318, at *3 (Miss. Oct. 18, 2018) (quoting Hearn v. State , 3 So.3d 722, 740 (¶ 54) (Miss. 2008) ).

¶ 30. This review does not require the court to ask "whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Bush , 895 So.2d at 843 (quoting Jackson v. Virginia , 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). If the Court should determine that the facts are not sufficient to support the verdict, then the "proper remedy is for the appellate court to reverse and render." Id.

¶ 31. Under section 97-3-53, a defendant may be found guilty of kidnapping in three ways. Burrell v. State , 183 So.3d 19, 23 (¶ 23) (Miss. 2015). In this case the State had to prove Young:

(A) acting without lawful authority, and
(B) with or without intent to secretly confine,
(1) forcibly seized and confined another person; or
(2) inveigled or kidnapped another person with intent to confine or imprison her against her will; or
(3) forcibly seized, inveigled or kidnapped a child under the age of sixteen years against the will of her parents, guardians, or lawful custodians.

Miss. Code Ann. § 97-3-53.

¶ 32. Here, there was sufficient evidence to prove that Young kidnapped Jane, a child under sixteen years old, under the third method. We note that there is no evidence that Young inveigled Jane by tricking or deceiving her; Jane testified that she called Young, asked him to pick her up at the Magnolia Motel, and left her house "on her own." But Jane was under the age of sixteen, and the evidence shows that Young's failure to return Jane to her mother's custody was against her mother's will. After Susan could not find Jane, she called Young sometime between 5:10 and 5:30 p.m. Susan testified that over the phone, Young said that he had not heard from Jane, had not talked to her, and did not know where Jane was. But Young was lying-before Jane left her house, she called Young to pick her up at the Magnolia Motel. Later, as it was getting dark out, Susan called Young a second time and told him she was worried about Jane and had called the police. Young did not tell Susan that Jane was with him. Susan testified that when she finally heard from Jane, it was around 2:15 in the morning.

¶ 33. Viewing the evidence in the light most favorable to the prosecution, we find that a rational juror could have found beyond a reasonable doubt that Young kidnapped Jane, a minor child under the age of sixteen years, against the will of her parents. We hold there was sufficient evidence to support Young's kidnapping conviction.

CONCLUSION

¶ 34. We find that Young's indictment for Count One, statutory rape was not fatally defective, and the trial court's amendment of this count was not substantive. Further, we find the variance between Young's indictment and jury instruction S-2A was not reversible error, and find the evidence sufficient to support Young's kidnapping conviction. We therefore affirm Young's convictions and sentences for statutory rape and kidnapping.

¶ 35. AFFIRMED.

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

      To protect the identity of sexual-abuse victims, we use fictitious names for the victim and the victim's relatives through which the victim could be identified.

      During trial, Jane testified that she initially denied having sex with Young because she thought he loved her and she wanted to protect him.

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      We acknowledge that the Uniform Rules of Circuit and County Court relating to criminal practice have been supplanted by the Mississippi Rules of Criminal Procedure and note that these rules became effective July 1, 2017.

      "Inveigle" means to lure or entice through deceit or insincerity. Black's Law Dictionary 952 (10th ed. 2014); see Myers v. State , 770 So.2d 542 (Miss. App. 2000) (finding inveigling where a defendant promised to drive a seven-year-old girl to her nearby home in Pascagoula, but instead drove her to Alabama after she willingly got in his van).