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

text:
    Delton CRUTCHFIELD and Lori Crutchfield, Appellants v. MAGNOLIA REGIONAL HEALTH CENTER, Appellee
    NO. 2017-CA-00111-COA
    Court of Appeals of Mississippi.
    June 5, 2018
    ATTORNEYS FOR APPELLANTS: EDGAR CLARK TROUT, RIDGELAND, THOMAS ROY TROUT, NEW ALBANY, KRISTIAN ALICIA MCCRAY, OXFORD
    ATTORNEY FOR APPELLEE: L. BRADLEY DILLARD, TUPELO
    BEFORE IRVING, P.J., FAIR AND WESTBROOKS, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. The Alcorn County Circuit Court granted summary judgment against Delton Crutchfield-then a named plaintiff but since deceased-and Lori Crutchfield. The Crutchfields now appeal, maintaining that the court erred in granting summary judgment. We affirm.

FACTS

¶ 2. Delton was admitted to Magnolia Regional Health Center (Magnolia Regional) on September 18, 2011, after suffering a heart attack. While under the care of Magnolia Regional, Delton developed decubitus ulcers on his coccyx, left buttocks, left heel, right trochanter, right lateral gluteus, right ischium, and sacrum. Delton was discharged from Magnolia Regional on October 25, 2011. However, his wounds gradually worsened and ultimately resulted in amputation of his lower left extremity. Delton's health continued to deteriorate until his death on July 24, 2016.

¶ 3. About three and a half years prior to Delton's death, on November 16, 2012, the Crutchfields filed their initial complaint against Magnolia Regional, asserting that he had developed the decubitus ulcers as a result of their negligent treatment. Attached to that complaint was an affidavit by counsel for the Crutchfields, alleging that he had conferred with a medical expert, Dr. Irving Vinger, who concluded that there was a reasonable basis to bring suit against Magnolia Regional.

¶ 4. Either late 2012 or early 2013, Magnolia Regional propounded written discovery to the Crutchfields, including interrogatories wherein it asked them to identify each person they expected to call as an expert witness at trial. In February 2013, the Crutchfields responded, "No decision has been made as to which experts the Plaintiffs will designate to testify at the trial of this matter," and "Plaintiffs will supplement this interrogatory when a decision as to who will be testifying as an expert(s) at the trial of this matter [has been made]." Magnolia Regional maintains-and the Crutchfields readily admit-that no such designation was ever made.

¶ 5. On January 7, 2015, the Crutchfields filed a motion for a scheduling order and trial date; however, no trial date was ever formally set. On May 26, 2016, Magnolia Regional filed a motion for summary judgment, on the basis that the Crutchfields had failed to designate an expert witness in support of their medical-negligence claims. The record indicates that on July 25, 2016, and on August 19, 2016, the Crutchfields issued two subpoenas for Delton's medical records from Baptist Union County Hospital and North Mississippi Medical Center, respectively. The docket sheet provides that the medical records from Baptist Memorial Hospital were filed with the court on September 15, 2016. There is no such entry regarding the records from North Mississippi Medical Center, and the Crutchfields maintain that those records were never filed. On September 7, 2016, the Crutchfields filed a response to Magnolia Regional's motion for summary judgment, along with a Rule 56(f) motion for continuance, wherein they asserted that they had retained two experts in this case, but that they were not yet required to designate those experts under the Uniform Rules of Circuit and County Court. They further argued that Magnolia Regional's motion was "premature," because "additional discovery" was needed "to fully develop the facts so that the [Crutchfields'] retained experts may render complete opinions with regard to [Magnolia Regional's] breaches in the minimum standards of care and how those breaches caused the [Crutchfields'] injuries." However, the Crutchfields failed to specify the required additional facts.

¶ 6. The following day, on September 8, 2016, the trial court conducted a hearing on Magnolia Regional's motion for summary judgment. Counsel for the Crutchfields argued that he had secured two experts who would testify "that there were clear breaches in the minimum standard of care in this case and that those breaches caused [Delton] injuries." When asked why those experts had not been designated, the Crutchfields' counsel replied, "Rule 4.04 requires me to do it [sixty] days before trial.... I don't mind giving it to them, but just would like to finish the discovery in this case. There are subpoenas to the North Mississippi Medical Center for a medical chart that my expert needs to review." Counsel for the Crutchfields contended that there had been a "little hiccup" in retaining experts, and that he had abandoned his initially retained expert in favor of a different one "roughly a couple years later or so after filing the case." Counsel also stated that he had additionally retained a nursing expert, who he initially obtained "a couple years" ago. The court then asked if counsel for the Crutchfields had considered bringing his experts to testify at the motion hearing, to which he replied, "I thought about it, Your Honor, and I thought about getting an affidavit. But 4.04 says that I don't have to designate my experts until 60 days before trial." Counsel then argued that "the case just hadn't been ready to try," due to the fact that Delton's damages were continuing to accrue up until his death about forty-five days prior to the hearing.

¶ 7. Shortly thereafter, the court rejected the Crutchfields' argument, stating:

I'm going to grant defendant's motion for summary judgment for failure to timely designate an expert setting forth the requirements that the plaintiff must have to go forward on his case and in not answering discovery in this case.
This case is going on four, or more, years old and to not even designate an expert at this time and giving it to the defense, I find is untimely, and summary judgment will be granted.

The circuit court entered summary judgment on October 3, 2016, "after having duly considered [Magnolia Regional's motion for summary judgment], [the Crutch fields'] MRCP 56(f) response, and arguments of counsel at a motion hearing conducted on September 8, 2016."

¶ 8. The Crutchfields subsequently filed a motion to alter or amend the judgment pursuant to Rule 59 of the Mississippi Rules of Civil Procedure, wherein they offered an explanation as to why they had failed to designate an expert: They contended that, sometime in 2015, they discovered that Dr. Vinger was no longer practicing in a hospital setting. Concerned that this fact might compromise his value as an expert witness, they retained a new expert, Dr. Timothy R. Klein. The Crutchfields maintained that Dr. Klein requested some additional medical records of Delton's that Dr. Vinger had not sought, which led to the subpoenas being issued to Baptist Memorial Hospital and North Mississippi Medical Center. The Crutchfields argued that these records were critical to Dr. Klein's expert opinion; however, they attached Dr. Klein's affidavit to their motion, wherein he opined-without the use of the still-pending medical records-that Magnolia Regional had breached the applicable standard of care and was responsible for Delton's injuries.

¶ 9. The trial court held another hearing regarding the Crutchfields' motion to alter or amend the judgment, during which counsel for the Crutchfields pleaded for a lesser sanction than complete dismissal. The Crutchfields admitted that Dr. Klein was able to give an opinion that Magnolia Regional was negligent, even without the medical records from Baptist Union County Hospital and North Mississippi Medical Center. The trial court again rejected the Crutchfields' argument and reaffirmed its grant of summary judgment. The Crutchfields filed a timely notice of appeal.

DISCUSSION

¶ 10. "A trial court's grant of summary judgment is reviewed de novo." Johnson v. Pace , 122 So.3d 66, 68 (¶ 7) (Miss. 2013) (citations omitted). Rule 56 of the Mississippi Rules of Civil Procedure provides that summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Miss. R. Civ. P. 56(c). The Mississippi Supreme Court in Johnson , 122 So.3d at 68 (¶ 8), succinctly states our well-settled law in the area of summary judgment as it pertains to medical-negligence claims:

In a medical-malpractice action, the plaintiff carries the burden of proof at trial and, thus, the burden of production on summary judgment. Palmer v. Biloxi Reg'l Med. Ctr., Inc. , 564 So.2d 1346, 1355 (Miss. 1990). A plaintiff in a medical-malpractice case has the burden of proving "(1) the existence of a duty by the defendant to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) a failure to conform to the required standard; and (3) an injury to the plaintiff proximately caused by the breach of such duty by the defendant." Hubbard v. Wansley , 954 So.2d 951, 956-957 (Miss. 2007) (citations omitted). Expert testimony establishing these elements generally is required for the nonmoving party to survive summary judgment. Smith v. Gilmore Mem'l Hosp., Inc. , 952 So.2d 177, 180 (Miss. 2007) (citing Sheffield v. Goodwin , 740 So.2d 854, 856 (Miss. 1999). "Not only must this expert identify and articulate the requisite standard that was not complied with, the expert must also establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries." Barner v. Gorman , 605 So.2d 805, 809 (Miss. 1992) (citing Latham v. Hayes , 495 So.2d 453 (Miss. 1986) ).

¶ 11. The Crutchfields maintain on appeal that the lower court erred in granting Magnolia Regional's motion for summary judgment because they "fulfilled [their] legal obligations in answering discovery and had no duty to designate [their] expert witness until sixty days before trial," according to Rule 4.04 5 of the Uniform Rules of Circuit and County Court. The Crutchfields further argue that the court failed to conduct the proper test "for granting sanctions as a punishment." Finally, the Crutchfields take issue with the fact that Magnolia Regional never sent a good faith letter complaining of an alleged discovery violation, nor did it file a motion to compel prior to filing its motion for summary judgment.

¶ 12. First, we address and reject the Crutchfields' contention that they were not required to designate their expert witnesses until sixty days prior to trial. The Mississippi Supreme Court addressed a factually similar matter in Johnson , 122 So.3d at 68 (¶ 8). In Johnson , the Johnsons-husband and wife-filed a complaint against Dr. William Pace, alleging medical malpractice as a result of a surgical procedure that Dr. Pace had performed on Mrs. Johnson. Id. at 67 (¶¶ 1-2). Dr. Pace moved for summary judgment on the basis that the Johnsons had failed to produce any expert testimony to support their claim. Id. at 67 (¶ 3). The trial court granted summary judgment, and the Johnsons appealed, maintaining that the grant of summary judgment "was merely a 'Draconian method' to punish them for being uncooperative during discovery." Id. at 67 (¶ 4). Further, the Johnsons argued that they had not been required to produce an expert witness at the time that Dr. Pace filed his motion, citing Rule 4.04(A) of the Uniform Rules of Circuit and County Court, which provides, "Absent special circumstances the court will not allow the testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least sixty days before trial ." Id. at 68-69 (¶ 9) (quoting URCCC 4.04(A) ) (emphasis added). The Johnsons argued that, because no trial date had been set in their case, the sixty-day deadline for designating an expert never expired. Id. at 69 (¶ 9). The Mississippi Supreme Court rejected this contention, holding: "There is no authority for the Johnsons' proposition that a party need not produce an expert witness until [sixty days prior to trial]." Id. at 69 (¶ 11). The Court held that, as the Johnsons failed to present any medical-expert testimony establishing the elements of a medical-malpractice claim a year after filing their complaint, the trial court's grant of summary judgment was proper. Id. at 70 (¶ 12).

¶ 13. Here, like the Court in Johnson , we agree with the trial court's grant of summary judgment. In their complaint, the Crutchfields represented that they had consulted with an expert (Dr. Vinger), who informed them that they had a viable claim for medical negligence. Subsequently, both parties engaged in written discovery. The Crutchfields explicitly stated that they would designate their expert witnesses at a later point in time. At some point over the course of discovery, the Crutchfields abandoned Dr. Vinger and retained Dr. Klein. During the summary judgment hearing, the Crutchfields maintained that they had not one, but two expert witnesses who had agreed to testify that Magnolia Regional had breached "the minimum standard of care in this case and that those breaches caused [Delton] injuries." The Crutchfields argued that a grant of summary judgment would be premature, because additional discovery was necessary; however, during the hearing, counsel for the Crutchfields only referenced one medical chart from the North Mississippi Medical Center needing to be reviewed. Further, despite their contentions that this additional discovery was necessary, the Crutchfields attached Dr. Klein's affidavit to their Rule 59 motion to alter or amend the judgment, wherein he opined that Magnolia Regional had breached the applicable standard of care and was responsible for Delton's injuries, even without the allegedly necessary discovery.

¶ 14. Our rules of civil procedure mandate that "[a] party is under a duty seasonably to supplement that party's response with respect to any question directly addressed to ... the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the testimony." Miss. R. Civ. P. 26(f)(1). However, over the course of three and a half years, the Crutchfields never provided this information to Magnolia Regional, effectively precluding Magnolia Regional from formulating its defense. We know of no rule stating that an expert does not have to be designated until sixty days before trial, and Rule 4.04 only provides that an expert must , at the very least, be designated by that point.

We therefore find this issue without merit.

¶ 15. We decline to address the Crutchfields' remaining two issues-that the court failed to conduct the proper test for granting sanctions as a punishment and that Magnolia Regional never sent a good faith letter or filed a motion to compel prior to filing its motion for summary judgment-because both issues are contingent upon a finding that the sole reason for the trial court's grant of summary judgment and the dismissal of the Crutchfields' complaint was to punish the Crutchfields for failing to make timely discovery. The Crutchfields attempt to frame the dismissal of their case as a "Draconian method" of sanction for a discovery violation rather than a proper grant of summary judgment. More specifically, the Crutchfields rely on the trial court's statement that it was dismissing for failure to designate an expert witness and for failure to answer discovery to argue that its dismissal was a sanction. However, we find no merit to this position. Magnolia Regional never sought dismissal on the basis of a discovery violation.

¶ 16. As noted, the circuit judge stated at the hearing on Magnolia Regional's motion for summary judgment that he was granting summary judgment because of the Crutchfields' failure to timely designate an expert and in not answering discovery. However, the court's statement must be considered in full context on that point. The trial judge's exact quote was: "I'm going to grant defendant's motion for summary judgment for failure to timely designate an expert setting forth the requirements that the plaintiff must have to go forward on his case and in not answering discovery in this case." (Emphasis added). We do not interpret the trial judge's statement to mean that the sole reason he was granting summary judgment was the Crutchfields' failure to timely make discovery. Rather, the trial judge was highlighting that because of the Crutchfields' failure, they could not meet their burden of proof. Also, in its order granting summary judgment, the trial court stated that Magnolia Regional's motion for summary judgment "should be granted for the reasons set forth in said [m]otion and at the September 8, 2016 oral argument." In Magnolia Regional's motion, it argued, among other things, that

[p]laintiff has failed to identify any expert who can (1) enunciate the standard of care applicable to Magnolia Regional, (2) opine as to any breach of the standard of care applicable to Magnolia Regional, (3) causally link any alleged breach by Magnolia Regional to damages sustained by Plaintiff. In the absence of such requisite proof, summary judgment is mandated.

¶ 17. Our caselaw clearly dictates that in matters involving medical negligence, expert testimony is necessary to establish the proper standard of care. See Brooks v. Roberts , 882 So.2d 229, 232 (¶ 10) (Miss. 2004) ("[I]t is our general rule that in a medical malpractice action[,] negligence cannot be established without medical testimony that the defendant failed to use ordinary skill and care.") (citing Sheffield v. Goodwin , 740 So.2d 854, 858 (Miss. 1999) ). As previously stated, the Crutchfields never designated an expert prior to the summary judgment hearing, and only provided Dr. Klein's affidavit as part of their motion to alter or amend the court's grant of summary judgment. They failed to satisfy their burden of proving the necessary components of a claim sufficient to survive summary judgment.

¶ 18. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.

      The initial complaint also included as defendants Magnolia Regional Health Center Foundation, Inc., and Magnolia Regional Health Services, Inc., both of whom were later dismissed. Additionally, the initial complaint was amended with leave of court to include Dr. Nanni Pidikiti, a cardiologist who had treated Delton at one point. Dr. Pidikiti was also later dismissed as a defendant.

      The Crutchfields note that this document was incorrectly file-stamped as January 7, 2014.

      Rule 56(f) of the Mississippi Rules of Civil Procedure provides:
      Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just.

      Of note is the fact that this motion included an affidavit from the Crutchfields' counsel, but not one from either of the purported experts that the Crutchfields had allegedly retained.


source: Caselaw Access Project

author: BARNES, J., FOR THE COURT:

license: Public Domain

text:
    In the MATTER OF the ESTATE OF George Lee JONES, Deceased:
    Jimmy Fairchilds, Executor of the Estate of George Lee Jones, Deceased Appellant v. Delta Foundation Inc. Appellee
    NO. 2016-CA-01345-COA
    Court of Appeals of Mississippi.
    June 5, 2018
    ATTORNEY FOR APPELLANT: FRANK G. VOLLOR, VICKSBURG
    ATTORNEY FOR APPELLEE: TONYA P. FRANKLIN
    BEFORE IRVING, P.J., BARNES AND WILSON, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. This dispute stems from two probated claims against George Jones's estate by creditor Delta Foundation Inc. (Delta) in the Chancery Court of Warren County. The two claims of $88,740.05 and $116,228.17 relate to two promissory notes taken out by Three Rivers Transit Inc. (Three Rivers) in 2005 and renewed in 2008. In 2005, Jones signed the notes individually and on behalf of Three Rivers. In 2008, however, he did not sign the notes individually but only on behalf of Three Rivers. Jones passed away, and Delta probated its claims, attaching the 2008 notes. The executor of Jones's estate (the Estate) objected, claiming that the debt belonged to Three Rivers, not Jones individually. Delta filed a motion to amend its probated claims in order to attach the 2005 notes. The motion was granted, but the 2008 notes were again erroneously attached to the claims.

¶ 2. Delta then filed an "amended motion to amend probate claim" to correct the error, which is the subject of this appeal. The Estate again objected, arguing that the 2005 notes were extinguished by the 2008 notes. After a hearing, the chancellor granted Delta's motion to amend the probated claims. Aggrieved, the Estate appealed the ruling.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. Jones operated Three Rivers, a business which transported and set up mobile and manufactured homes. Delta is a non-profit organization that assists small-business owners with financing their operations in order to encourage them to remain in rural areas. Documents entered into evidence establish that in February 2000, a "Loan Transaction" was entered into between Three Rivers and Delta evidenced by a promissory note and deed of trust to secure a loan of $122,750, maturing March 1, 2007. The deed of trust was signed by Jones on behalf of the "Debtor" Three Rivers. On the same date, Jones and his wife executed two deeds of trust to Delta to secure the loan of $122,750 and another loan of $152,250 to Three Rivers, also maturing on March 1, 2007.

¶ 4. On January 15, 2005, Jones and Lee Pinkston executed two promissory notes "Individually and on behalf of Three Rivers Transit, Inc." Loan number 56 included a principal of $109,787.57 and loan number 113 of $141,319.32, with monthly payments of $1,111.54 and $1,430.79 respectively. The "Borrowers" were Three Rivers, Jones, and Pinkston. Both loans were provided at a four-percent interest rate for 120 months, with the final payment due in January 2015. The notes recited that they were secured by a security agreement which encumbered certain personal property of the Joneses. The 2005 notes provide:

Borrowers waive demand, protest, presentment, notice of demand, protest, nonpayment and dishonor, and all other notices. No extension of time for the payment of this Promissory Note made by agreement with any person now or hereafter liable for the payment of this Promissory Note shall operate to release, discharge, modify, change, or affect the original liability under this Promissory Note of Borrowers, either in whole or in part, if Borrowers are not a party to such agreement.

¶ 5. On September 22, 2008, the loans were renewed. The "Borrower" was Three Rivers. The monthly payments were lowered, the interest rate was increased, and the final payment dates were extended. The loan numbers of 56 and 113 did not change, and the principal amounts had been reduced to $91,801.15 and $117,570.39, respectively, with monthly payments of $1,065.89 and $1,365.09. The interest rate was increased to seven percent for 120 months, with the final payment due in October 2018. The note recited that it was secured by several parcels of real property: approximately nine acres of land for Three Rivers' shop in Vicksburg, Jones's home in Vicksburg, and two acres in West, Mississippi, as well as a 2008 life insurance policy for $200,000. The notes specify that the lender is not required to rely on this security "but may proceed directly against the Borrower."

¶ 6. Importantly, while the 2008 promissory notes were again executed by Jones and Pinkston, the signature block was different from the 2005 notes. On these later notes, Jones signed under the typed name "Three Rivers" without any indication of agency status, but also without any indication of individual liability. Pinkston signed the notes as a partner and guarantor. The notes state:

No renewal or extension of this Note, delay in enforcing any right of the Lender under this Note, or assignment by Lender of this Note shall affect the liability or obligations of the Borrower. All rights of the Lender under this Note are cumulative and may be exercised concurrently or consecutively at the Lender's option.

¶ 7. In May 2012, while driving for the company, Jones was tragically killed in a motor-vehicle accident. His estate was opened in the Warren County Chancery Court. The first publication for creditors was issued on March 6, 2013. Delta timely filed two probated claims of $88,740.05 and $116,228.17 respectively for each loan. The Estate objected to both probated claims, arguing the indebtedness belonged to Three Rivers, not Jones individually, due to the fact that Jones had not signed the 2008 notes in an individual capacity.

¶ 8. In March 2015, a hearing was held on the claims, where counsel for Delta claimed she had attached only the 2008 notes and loan-payoff schedule to the claims and inadvertently failed to attach the notes signed in Jones's individual capacity. The chancellor continued the hearing, and Delta filed a motion to amend its probated claims in order to attach the individual notes. In its motion, Delta stated the indebtedness was incurred by Three Rivers, Jones individually, and Pinkston individually, and the intended purpose of the notes was for Three Rivers and Jones to be responsible for the debt. Delta argued that nothing had changed in its probated claims; the additional promissory notes would be merely "additional documentation of the claim," as required by statute, that "simply perfect[ed] the claim as filed." The chancery court granted the motion.

¶ 9. Accordingly, in June 2015, Delta filed the amended probated claims, but again attached the same 2008 notes and payoff schedule that had been originally offered. Delta then filed an "Amended Motion to Amend Probate Claim," finally attaching the 2005 notes. Delta attached the same Loan Payoff sheet as it had for the 2008 notes, again calculating the debt pursuant to a seven-percent interest rate. The Estate renewed its objection, arguing that Delta's inadvertent omission of the 2005 promissory notes executed by Jones in his individual capacity was irrelevant because the 2005 notes were "superseded and nullified" by the execution of the 2008 notes as a matter of law, and Jones was no longer responsible for the debt. The Estate claimed the 2008 notes constituted a "novation" which extinguished the 2005 notes. The Estate cited several cases to the effect that "the execution of a renewal note with full knowledge of the facts constituting a defense to the original note waives that defense as to the renewal," and the debtor "becomes obligated to pay the new note." See, e.g. , Citizens Nat'l Bank v. Waltman , 344 So.2d 725, 728 (Miss. 1977) (citing Gay v. First Nat'l Bank , 172 Miss. 681, 686, 160 So. 904, 905 (1935) ).

¶ 10. In reply, Delta argued the inapplicability of the Estate's cases because Delta was not asserting a defense, but rather a cause of action to enforce Jones's promise to pay the debts. Additionally, Delta denied the execution of the 2008 notes constituted a novation, citing Greenwood Leflore Hospital Commission v. Turner , 213 Miss. 200, 206, 56 So.2d 496, 497 (1952), in support of the proposition that a novation requires the addition of a new party. Secondly, Delta argued that the parties did not intend a novation, and the creditor did not assent to it, as required in First American National Bank of Iuka v. Alcorn Inc. , 361 So.2d 481, 487 (Miss. 1978), Mississippi Motor Finance Inc. v. Enis , 254 Miss. 625, 628-29, 181 So.2d 903, 904-05 (1966), and Morgan v. Jackson Ready-Mix Concrete , 247 Miss. 863, 886, 157 So.2d 772, 780 (1963). Delta also argued that while assent to a novation can be express or implied, here there was no express assent and no evidence of an implied assent. See Amer. Blakeslee Mfg. Co. v. Martin , 128 Miss. 302, 91 So. 6 (1922). Finally, Delta claimed that if a novation was intended upon execution of the 2008 notes, the collateral pledges and the lien against the Joneses would have been released.

¶ 11. The chancellor entered a final judgment allowing Delta to amend its probated claim and attach the 2005 notes. She quoted from two cases- First American National Bank , 361 So.2d at 487-88 : "A novation involving substitution of debtors is a contract that discharges at once an existing obligation and creates a new contractual obligation by including as the new obligor a party who was not previously obligated"; and Harris v. Tom Griffith Water Well & Conductor Service Inc. , 26 So.3d 338, 341 (¶¶ 10-11) (Miss. 2010) :

A novation may occur where the debt remains the same, but a new debtor is substituted. In such event, the original debtor is acquitted, his obligation is extinguished, and the creditor contents himself with the obligation of the second debtor. Miss. Ins. Guar. Ass'n v. MS Cas. Ins. Co. , 947 So.2d 865, 871 (Miss. 2006) (quoting Greenwood Leflore Hosp. Comm'n v. Turner , 213 Miss. 200, 56 So.2d 496, 497 (1952) ). See also First Am. Nat'l Bank of Iuka v. Alcorn, Inc. , 361 So.2d 481, 487 (Miss. 1978) (citing Miss. Motor Fin., Inc. v. Enis , 254 Miss. 625, 181 So.2d 903 (1966) ). The Restatement of Contracts defines novation as a contract that (a) discharges immediately a previous contractual duty or a duty to make compensation, and (b) creates a new contractual duty, and (c) includes as a party one who neither owed the previous duty nor was entitled to its performance. Restatement (First) of Contracts § 424 (1932). In other words, a novation involves a substituted contract.

(Internal quotation marks omitted).

STANDARD OF REVIEW

¶ 12. This case presents questions of fact and law. For questions of fact, "[w]e will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused [her] discretion, applied an erroneous legal standard, was manifestly wrong, or was clearly erroneous." Harris , 26 So.3d at 340 (¶ 7). "Questions of law are reviewed de novo." Id.

ANALYSIS

I. Effect of 2008 Notes on 2005 Notes

¶ 13. In this case, the chancellor made no findings of fact and appears to have determined, as a matter of law, that the 2008 notes could not constitute novations as no new debtor was substituted. Relying upon Ainsworth v. Lee , 218 Miss. 813, 67 So.2d 905 (1953), we find this proposition to be an incorrect statement of Mississippi law.

¶ 14. The Mississippi Supreme Court, in Ainsworth , explained:

There are three kinds of novation: (1) where the debtor and creditor remain the same, but a new debt takes the place of the old one; (2) where the debt remains the same but a new debtor is substituted; and (3) where the debt and debtor remain, but a new creditor is substituted. Adams v. Power , 48 Miss. 450.[ ] In Greenwood Leflore Hospital Comm. v. Turner , 213 Miss. 200, 56 So.2d 496, 497, this rule was deduced: "A novation may occur where the debt remains the same, but a new debtor is substituted. In such event, the original debtor is acquitted, his obligation is extinguished, and the creditor contents himself with the obligation of the second debtor." In 39 Am. Jur., p. 255, Sec. 2, is found this definition of notation: "A novation, then, as understood in modern law, is generally defined as a mutual agreement among all parties concerned for the discharge of a valid existing obligation by the substitution of a new valid obligation on the part of the debtor or another, or a like agreement for the discharge of a debtor to his creditor by a substitution of a new creditor."

Id. at 817-18, 67 So. 2d at 907.

¶ 15. In Ainsworth , the ultimate question was whether a mortgage lien of Burnham Ainsworth was superior, or subject to, the title of D.H. Lee in certain real property. A deed of trust conveying the property was executed by Willie Jones and G.G. Gregory to secure a debt owed to Ainsworth. Id. at 815, 67 So.2d at 906. Jones and Gregory subsequently sold Lee a one-third interest in the lot and automobile business thereon. The deed provided that Lee would be liable for one-third of the indebtednesses of the business. Gregory then sold his one-third interest in the business to Jones and requested that Ainsworth satisfy the deed of trust, release Gregory, and take a new deed of trust from Jones. Id. at 816, 67 So.2d at 906. Ainsworth satisfied and cancelled Jones and Gregory's original deed of trust, and Jones alone executed a new deed of trust to secure the balance of the original debt owed to Ainsworth. Jones never paid the debt; so the trustee foreclosed against Lee and Jones under the original deed of trust executed by Jones and Gregory, and later renewed by Jones. Id. at 817, 67 So.2d at 906. Lee argued that the new debt-arrangement between Ainsworth and Jones was a novation of the old obligation, and the trial court dismissed the suit. Id. at 817, 67 So.2d at 907. The supreme court affirmed, explaining that Ainsworth surrendered the old notes signed by Gregory and Jones, accepted the new notes and deed of trust signed by Jones alone, and satisfied the old deed of trust of record. Lee's one-third interest in the lot was superior to the mortgage lien of Ainsworth. Gregory was relieved of any personal responsibility for the debt. Id. at 818-19, 67 So.2d at 907. While these facts do not mirror those before us exactly, they do verify that a novation does not require the addition of a new party. As in our case, the new notes were executed by fewer than all the original signatories.

¶ 16. This area of the law has become confused, however, by two circumstances. First, there are cases which cite part of the doctrine of novation but which have been inferred by some, including Delta, to contain the entire doctrine. For example, Delta quotes Greenwood LeFlore Hospital : "A novation may occur where the debt remains the same, but a new debtor is substituted." Greenwood Leflore Hosp. , 213 Miss. at 206, 56 So.2d at 497. Delta argues that this quote defines novation. However, Greenwood Leflore Hospital does not state that this is the only way a novation "may occur," and in fact cites Adams for its authority. The supreme court in Ainsworth quoted this exact statement immediately following its recognition of the "three kinds of novation." See supra . Obviously, then, substitution of parties is not the only type of novation recognized in Mississippi.

¶ 17. Further confusion is caused by the Restatement of Contracts' utilization of the term "novation" only to refer to one type of subsequent or substituted contract. The Second Restatement defines novation as a "substituted contract that includes as a party one who was neither the obligor nor the obligee of the original duty." Restatement (Second) of Contracts § 280 (1981) (emphasis added). A "substituted contract," in turn, is one "that is itself accepted by the obligee in satisfaction of the original duty and thereby discharges it." Id. at § 279 cmt. While the First Restatement did not refer to a novation as a type of "substituted contract," its definition is contained in the chapter entitled "Discharge of Contracts." The manners of discharge included not only novations, but also rescissions and accords, including "An Accord Itself as Satisfaction": "A subsequent contract may itself be accepted as immediate satisfaction and discharge of a pre-existing contractual duty, or duty to make compensation; and if so accepted the pre-existing duty is discharged and is not revived by the debtor's breach of the subsequent contract." Restatement (First) of Contracts § 418 (1932).

¶ 18. The Maryland Court of Appeals' opinion Leisner v. Finnerty contains the most thorough discussion of the comparison between the Restatement and common-law definitions of novation we have been able to locate:

Although the Restatement, Contracts, Section 424, would require that a new party be introduced into the existing agreement in order for a "novation" to occur, the decisions in this State and many other jurisdictions have made no such distinction or requirement[.] Although the position taken by the Restatement may be the more proper one from a puristic standpoint, we find that in Maryland and elsewhere the terms "novation," "merger," "accord" and "substituted contract" have at times been used interchangeably. We think this Court both recognized and answered this problem in semantics when Chief Judge Brune for the Court in Hudson v. Md. State Housing Co. , 207 Md. 320, 114 A.2d 421 (1955), with his usual perspicuity stated:
In current legal terminology some authorities apply the term 'merger' or 'substituted contract' rather than 'novation' to the substitution of a new agreement for an old one between the same parties, and reserve the term 'novation' for a new agreement in which one or more new parties are introduced. Restatement, Contracts, Sections 424, 443 ; Williston, Contracts, Rev. Ed., Section 1865. The latter points out, however, that the term 'novation' is not uncommonly applied in the common law, as well as in the civil law, to a substituted contract between the same parties. In this State the term 'novation' has been applied to a new contract between the parties as well as to a new contract involving one or more new parties.

Leisner v. Finnerty , 252 Md. 558, 250 A.2d 641, 643-44 (1969).

¶ 19. We find Adams and Ainsworth clearly follow civil and common-law definitions of "novation" rather than the Restatement view. However, in Harris , quoted by the trial court, supra , the supreme court cites Greenwood Leflore Hospital , the First Restatement of Contracts, and the "substituted contract" concepts from the Second Restatement.

¶ 20. The question is whether the Harris court intended to overrule Ainsworth or the "well settled principles of law" identified by Adams without comment or explanation. We think not. At most, we believe Harris may signify a change from the common law to Restatement terminology. As noted previously, both the First and Second Restatements recognize subsequent or substituted contracts, which do not require additional parties; the Restatements just do not refer to them as "novations." Therefore, as Ainsworth is on point and not overruled by the Mississippi Supreme Court, we determine that the 2008 notes might constitute novations without the addition of a new party.

¶ 21. The burden of proof rests on the party asserting a novation to establish it. Morgan v. Jackson Ready-Mix Concrete , 247 Miss. 863, 886, 157 So.2d 772, 780 (1963) (citing 66 C.J.S. Novation § 26 ). Whether a novation was established depends "on whether the parties intended to extinguish the old obligation by substituting the new one," which is a question for the finder of fact. Id. (citing 61 A.L.R. 2d 755, 759 (1958) ; 66 C.J.S. Novation § 27 ).

¶ 22. In the instant case, the trial court did not make any findings of fact as to whether the parties intended to extinguish the 2005 notes by execution of the 2008 notes. A number of factors may be considered in determining intent. See generally Annotation, Renewal Note as Discharging Original Obligation or Indebtedness , 52 A.L.R. 1416 (1928) (collecting cases). Delta argues that had the parties intended to extinguish the 2005 notes, the deeds of trust executed by Jones and his wife would have been satisfied of record. This argument does have some support in law. In Adams , the supreme court stated: "An important rule of novation is, that the extinction of the debt destroys also all rights and liens appertaining thereto. Hence, if any hypothecations be attached to the old contract, they will be canceled by the new one, unless express words retain them." Adams , 48 Miss. at 456. In this case, however, the deeds of trust were executed in 2000, at a time when Jones does not appear to have any personal liability on the notes. Therefore, personal liability and the pledge of security do not go hand-in-hand. Further, Jones's deeds of trust secure future advances to Three Rivers. Accordingly, Jones's property stands as security for liabilities incurred by Three Rivers both before and after execution of the 2005 notes upon which Jones was personally liable. This point is, therefore, not determinative of whether the parties intended a novation.

¶ 23. Delta further argues that there is no evidence indicating the parties intended a novation to occur. At the hearing, the Estate, however, introduced a general promissory note "checklist"-"Final Checklist for General Promissory Note"-identifying who was to sign the documents and actions to be taken to "make [the note] legal." The checklist stated: "The Promissory Note is co-signed by a third party. Therefore, Lee Pinkston must also sign the Note." Delta objected to the admission of this document because there had been no testimony as to who prepared it. The chancellor stated that the document had already been admitted, but she would "not determine who actually made that preparation unless you have adequate to testimony to present or evidence to present in that regard." The Estate argued that even if Jones created the checklist (which it argued he did not), it would still express the intention that Jones was not intended to sign the 2008 notes.

¶ 24. Here, the issue is not whether it was intended Jones would not execute the new notes, but whether the execution of those notes was intended to extinguish the 2005 obligation. We agree with the Estate that the checklist, regardless of who created it, could indicate an intent not to continue Jones's obligation. If Delta intended for the 2005 notes to continue, why would it need the personal guaranty of one but not the other 2005 guarantor? Given the limited record and arguably conflicting evidence, we cannot determine as a matter of law that there was no evidence of intent. Accordingly, we reverse and remand for the chancery court to determine whether the execution of the 2008 notes was intended to extinguish the 2005 notes.

II. Waiver

¶ 25. The Estate argues that Delta waived all claims against Jones individually when Delta accepted the 2008 renewal notes without Jones's signature in an individual capacity. In response, Delta mistakenly claims that the defense of waiver was not presented before the chancery court, and is thus waived on appeal. However, the defense of waiver was brought up in the Estate's objection to the motion to amend the probated claims, the related memorandum of law, and the hearing on the motion. We are not persuaded, however, by the Estate's argument that the execution of the 2008 renewal notes extinguished the 2005 notes, and Delta thereby waived its rights to any defenses or claims under the 2005 notes.

¶ 26. As Delta points out, its probated claims were not asserting a defense of waiver on the notes, but rather a cause of action for payment by the Estate. To support its argument, the Estate cites cases on the defense of waiver: Gay v. First Nat'l Bank , 172 Miss. 681, 160 So. 904 (1935) and Austin Dev. Co. v. Bank of Meridian , 569 So.2d 1209 (Miss. 1990). However, both cases are distinguishable. Gay stands for the proposition that when a debtor executes a renewal note, the defenses of the original note are waived, and the debtor must pay the renewal note. Gay , 172 Miss. at 686, 160 So. at 905. In Austin , which cites Gay , a company renewed its loan with a bank several times because it could not pay its initial loan. Austin , 569 So.2d at 1210-11. The bank subsequently sued on the debt, and was granted summary judgment. Id. at 1211. The Mississippi Supreme Court affirmed, holding that the debtor/company waived any defense or cause of action against the bank, which had failed to timely call upon a letter of credit which was collateral for the debtor's loan, because the debtor/company executed renewal notes and paid interest on the notes. Id. at 1213.

¶ 27. Here, Delta is not arguing that the Estate waived a defense regarding the notes; the Estate is arguing that Delta, by accepting the new notes, waived its right to pursue claims on the original notes. We believe that the issue is one of novation, as discussed in issue one, rather than of waiver.

III. Addition of 2005 Promissory Notes to Delta's Probated Claims

¶ 28. The Estate argues that the chancellor erred in allowing Delta to "substitute" the 2005 notes for the 2008 notes. Further, the Estate claims that the amendment was untimely as it was submitted over three years after the time allowed, thereby violating Mississippi Code Annotated sections 91-7-149 and 91-7-151 (Rev. 2013).

¶ 29. Section 91-7-149 explains the procedure for probating claims and requires that written evidence of the probated claim against a decedent's estate be submitted to the clerk, including an affidavit stating:

the claim is just, correct, and owing from the deceased; that it is not usurious; that neither the affiant nor any other person has received payment in whole or in part thereof, except such as is credited thereon, if any; and that security has not been received therefor except as stated, if any.

Section 91-7-151 explains the ninety-day time limit and amendment procedures for probated claims. Also, a claim may be amended after the ninety-day period has expired through approval of the court, as the Mississippi Supreme Court explained in Central Optical Merchandising Co. v. Lowe , 249 Miss. 61, 160 So.2d 673 (1964) :

[A] seasonably filed claim against the estate of a decedent may be amended after the expiration of the time limited for the filing of claims where it is necessary or desirable to accomplish complete justice between the parties , the original statement shows a claim (or cause of action) which may be established as a valid one, upon which an amendment can be predicated, the character and identity of the claim (or cause of action) is not changed , unrelated increases in the sum claimed are not included, and the proposal is not contrary to the provisions of the probate statute, as construed, but rather in harmony with applicable curative or jeofails statutes permitting amendments to pleadings, etc., in proper civil cases.

Id. at 75-76, 160 So. 2d at 679-80 (emphasis added) (quoting H.D. Warren, Annotation, Amendment of Claim Against Decedent's Estate After Expiration of Time for Filing Claims , 56 A.L.R. 2d 627 § 2(a), at 628 (1957) ).

¶ 30. The Estate argues that with Delta's amendment, the 2008 notes were substituted by the 2005 notes and thus materially changed the identity of the claims. The Estate contends the borrowers for the 2005 notes were Three Rivers, Jones, and Pinkston, while the borrower for the 2008 notes was only Three Rivers, with Pinkston as guarantor, because Jones did not sign the notes in an individual capacity. Because of these differences, the Estate claims the amendment, filed after the ninety-day probate deadline, was untimely and thus improper. We disagree.

¶ 31. Here, Delta received the Estate's notice to creditors on March 1, 2013. Delta filed two separate claims against the Estate for indebtedness on April 11, 2013, within the ninety-day deadline. Nearly two years later, on December 18, 2014, the Estate objected to the probated claims. Delta filed its motion to amend the claims in June 2015 and then its amended motion to amend the claims on November 30, 2015. In both of the motions, Delta stated the probated claims were a result of indebtedness incurred by Three Rivers, Jones individually, and Pinkston individually. Delta maintained that the probated claims' identity did not materially change except for the addition of the 2005 notes, which was merely an "additional documentation of the claims."

¶ 32. In Central Optical , the Mississippi Supreme Court found that "substantial compliance is sufficient" in statutes relating to claims against decedents' estates. Id. at 71, 160 So.2d at 677. "Where the amendment increases the amount of the claim, sets up a new cause of action, and materially changes the basis for the claim, it is not allowable" past the statutory time limits. Id. at 75, 160 So.2d at 679 (citing 34 C.J.S. Executors and Administrators § 417 ). However, an amendment is allowable if it "does not amount to a new claim, but is merely an improvement or perfection of one presented in time but lacking certain elements necessary to express its full merits." Id.

¶ 33. Here, the trial court did not abuse its discretion in allowing the amendment. No additional funds were borrowed in 2008, and the due date was merely extended to allow more time to pay off the loans. While the interest rate was lower under the 2005 notes, we do not find, as a matter of law, that the change in interest rate materially altered the character or identity of the claim. Accordingly, the amendment was allowable outside of the statutory ninety-day time limitation under Central Optical .

¶ 34. As discussed in issue one, the chancery court must, however, determine on remand whether the 2005 notes were extinguished by novation.

¶ 35. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

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

      The Three Rivers deed of trust attached a property description on approximately nine acres in Warren County, Mississippi.

      The Jones deeds of trust secured "all future and additional advances" by Delta to Three Rivers and "any and all other indebtedness" of Three Rivers to Delta. The property descriptions were of a mobile home and the land on which it was located in Warren County.

      The only deeds of trust in the record are those executed in 2000 by Three Rivers on approximately nine acres of land and by the Joneses on the mobile home and lot.

      Attached to the copies of the 2008 promissory notes submitted into evidence by the Estate was a "Final Checklist for General Promissory Note" listing the Borrower as Three Rivers. One of the items on the list stated: "The Promissory Note is co-signed by a third party. Therefore, Lee Pinkston must also sign the Note."

      Delta reported:
      The documentation attached to the original probated claims was the promissory notes executed by George Jones on behalf of Three Rivers Transit. Counsel inadvertently left out the promissory notes executed by George Jones in his official [sic] capacity. The terms of the promissory notes executed by Three Rivers Transit and George Jones, individually, were identical and [the] intended purpose was for the Corporation to be responsible as well as George Jones individually.

      In Adams v. Power , 48 Miss. 450, 454 (1873), the supreme court discussed the "well settled principles of law" regarding novation, including its history in civil law with three types of novation, and its similarity to the common-law doctrine.

      As previously noted, Adams is the earliest case in Mississippi discussing the "three types of novation." Seesupra . Greenwood Leflore Hospital states:
      In Adams v. Power , 48 Miss. 450, it was recognized that a novation may occur where the debt remains the same, but a new debtor is substituted. In such event, the original debtor is acquitted, his obligation is extinguished, and the creditor contents himself with the obligation of the second debtor.
      Greenwood Leflore Hosp. , 213 Miss. at 206, 56 So.2d at 497.

      Similarly, in some cases the supreme court has stated: "A novation involving substitution of debtors is a contract that (a) discharges immediately an existing contractual obligation, (b) creates a new contractual obligation by, (c) including as the new obligor a party who was not previously obligated." See Miss. Motor Fin. Inc. v. Enis , 254 Miss. 625, 628, 181 So.2d 903, 904 (1966) (citing Greenwood Leflore Hosp. , 213 Miss. at 200, 56 So.2d at 496 ); 39 Am. Jur. Novation § 2 at 254-55 (1942) ; Restatement (First) of Contracts § 424 (1932) ); see also First Am. Nat'l Bank , 361 So.2d at 487-88 (citing Enis , 254 Miss. at 628, 181 So.2d at 904 (1966) ). Again, while these cases describe a novation "involving substitution of debtors," they do not say that this is the only type of novation recognized in Mississippi.

      The First Restatement of Contracts states:
      A novation within the meaning of the Restatement of this Subject is a contract that (a) discharges immediately a previous contractual duty or a duty to make compensation, and (b) creates a new contractual duty, and (c) includes as a party one who neither owed the previous duty nor was entitled to its performance.
      Restatement (First) of Contracts § 424 (1932) (emphasis added).

      Neither this type of accord or the "substituted contract" of the Second Restatement require the addition of a third party.

      Most recently, the United States District Court for the Southern District of Mississippi cited Ainsworth 's three types of novation under Mississippi law. U.S. Bank Nat'l Assoc. v. State Bank & Trust Co. , 45 F.Supp.3d 582, 588 (S.D. Miss. 2014).

      On appeal, the Estate contends Delta was "substituting" the 2005 notes for the 2008 notes; however, in its motions to amend, Delta does not request "substitution" but the addition of the 2005 promissory notes to "simply perfect the claim as filed." The Estate's word choice in the first issue relates to the second issue it raises regarding novation, or substitution, of the probated claims.


text:
    Elle A. ADAMS, Appellant v. John Leon RICE, Appellee
    NO. 2016-CP-00664-COA
    Court of Appeals of Mississippi.
    June 12, 2018
    ATTORNEY FOR APPELLANT: ELLE A. ADAMS (PRO SE)
    ATTORNEY FOR APPELLEE: MARK G. WILLIAMSON, Starkville
    BEFORE IRVING, P.J., BARNES AND WILSON, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. Elle Adams (a.k.a. Elle Aquilera, Ellie Adams, Elle Agundis), appearing pro se, appeals the judgment of the Oktibbeha County Chancery Court, which found that she was in contempt for not allowing John Rice visitation with their minor child. Additionally, the chancery court declined to modify custody. Elle appeals, raising issues of judicial bias, jurisdiction, child custody, and ineffective assistance of counsel. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. This appeal stems from John's petition for contempt and modification of child custody filed in November 2015. He alleged that Elle refused to allow him visitation or contact with their two-year old child, Aaron. John requested that Elle be held in contempt for her failure to follow the court's order and be required to pay his attorney's fees and other costs. Additionally, John requested that the court modify its prior order and award him physical custody of Aaron subject to Elle's restricted and supervised visitation.

¶ 3. The initial action of this case was filed in December 2013. John filed a petition to establish paternity, custody, and support of Aaron. He initially requested custody of Aaron. Elle filed a counterclaim for custody, child support, and medical expenses incurred from the birth of the child. After a September 2014 hearing, the issues were narrowed to visitation privileges, health insurance, and child support, as John's paternity had been established, and he no longer desired physical custody.

¶ 4. In its opinion and final judgment of December 2014, the chancery court granted Elle physical custody of Aaron, with both parties having joint legal custody. John was awarded visitation consisting of alternating weekends and specific holidays. At the time, Elle lived in Gulf Shores, Alabama, and John lived in Starkville, Mississippi; so the parties were to exchange the child at the Meridian Police Department. John was ordered to pay child support. Elle appealed the judgment, arguing the chancellor erred in granting unsupervised visitation to John and joint legal custody. Adams v. Rice , 196 So.3d 1086, 1089 (¶ 9) (Miss. Ct. App. 2016). She also claimed the chancellor should have declined jurisdiction based on the doctrine of forum non conveniens. Id. at 1090 (¶ 14). This Court affirmed the chancery court. Id. at (¶ 16).

¶ 5. In February 2015, a family court in Jefferson County, Alabama, granted Elle an ex parte temporary protection order due to alleged domestic abuse by John. She claimed she fled to Alabama to escape John's abuse. On August 17, 2015, the Alabama family court made the order permanent, "suspended" John's visitation, and closed the matter.

¶ 6. On November 12, 2015, John filed his petition for citation of contempt and modification of custody. In February 2016, Elle filed motions to appoint a court interpreter and to contest the chancery court's jurisdiction under the Uniform Child Custody Jurisdictional Enforcement Act (UCCJEA). In response to the motion for an interpreter, John revealed that Elle actually worked as a Spanish interpreter. He reasoned that she was merely trying to delay the proceedings. As for the jurisdictional motion, John argued that the initial custody determination was made in Oktibbeha County, where he still lived, but Elle unilaterally moved to Alabama with neither a job nor friends with the intent to separate him from his son.

¶ 7. On March 14, 2016, Elle obtained another ex parte temporary protection order, this time in Baldwin County, Alabama. On March 15, 2016, John filed a motion for Elle to bring their child to the final hearing scheduled for March 31, 2016, because John had not seen him since the September 2014 hearing. Elle failed to appear at the March 22, 2016 hearing on these motions, but she was represented by counsel. The chancellor denied Elle's two motions and granted John's motion. The chancellor ruled that Elle's failure to appear was fatal to both motions, as no testimony or evidence was presented in their support.

¶ 8. On March 30, 2016, one day prior to the final hearing, Elle filed an answer and counterclaim. She denied that she was in contempt. Elle alleged that she was under the protection of the Baldwin County order and formerly under the protection of the Jefferson County order. Additionally, Elle requested that the court hold John in contempt for failure to pay child support. Elle also filed the aforementioned motion for the chancellor's recusal with the Mississippi Supreme Court.

¶ 9. At the final hearing on March 31, 2016, Elle again did not appear or produce the child as ordered. She told her attorney the reason for her absence was because Aaron was sick and had a doctor's appointment. Elle's counsel appeared and represented her client in her absence; however, counsel was forced to rest without presenting any testimony or evidence.

¶ 10. The chancery court issued a detailed opinion and final judgment. The chancellor found she had jurisdiction under the UCCJEA. The chancellor was not convinced that there was a legitimate threat of domestic violence against Elle, finding her claims of rape and abuse were not credible. It was the chancellor's opinion that Elle was using the benefits of domestic protection orders "as a means to circumvent the orders of this court." The chancellor further determined that the protection orders did not thwart jurisdiction: the Jefferson County order had been dismissed; and the Baldwin County protection order, if still in effect, had no authority to interfere with the chancery court's decision. The chancellor noted that John had no notice of the Baldwin County order, nor had the Baldwin county court contacted the Mississippi chancery court to discuss custody or visitation. The chancellor also noted the fact that Elle failed to appear at the March 31 hearing to address the issues she raised by motion.

¶ 11. The chancellor also found Elle in contempt for failure to comply with the visitation schedule of the December 2014 order. John had absolutely no visitation with his son since September 2014, and the chancellor found Elle had "a pattern [of] misuse [of] the judicial system to thwart John's legal right to visit and bond with his son." Elle was also found in contempt for failing to produce the child at the March 31 hearing. While Elle's attorney informed the chancellor that Elle had texted her numerous times to explain that Aaron had been sick and had a doctor's appointment, no documentation was presented to justify the failure. Because Elle failed to appear and offer proof, John was not held in contempt for failure to pay child support; however, he was ordered to pay the arrearage to Elle. Regarding modification of custody, Elle was denied sole custody of Aaron, and John was denied physical custody of Aaron "at this time." The chancellor found that while Elle's denial of visitation caused a material change of circumstances that adversely affected Aaron, after evaluating the Albright factors, she found that a change of custody to John was not in Aaron's best interest, as Aaron had yet to develop a bond with John. The visitation schedule of the original custody order was to remain in effect.

¶ 12. Elle appeals pro se, raising four issues: (1) the chancellor should have recused as she harbored bias against Elle; (2) the chancery court lacked jurisdiction to hear the case due to the Alabama protective orders; (3) the chancellor erred by modifying custody; and (4) Elle received ineffective assistance of counsel.

ANALYSIS

¶ 13. None of Elle's arguments on appeal involve the substantive claims that John raised in his petition for contempt, child support, or modification of physical custody. John argues that Elle is improperly attempting to defend her case for the first time on appeal because of her failure to appear and defend at the March 22 and 31 hearings. He concludes that her issues are procedurally barred because they were not raised before the chancery court. See Henrichs v. Henrichs , 32 So.3d 1202, 1205-06 (¶¶ 11-12) (Miss. Ct. App. 2009).

¶ 14. We disagree. Unlike the defendant in Henrichs , while Elle failed to appear at the two hearings, she was represented by counsel, and ultimately filed an answer and counterclaim the day before the final hearing. Additionally, the arguments Elle raises before this Court do not relate to insufficient findings of fact by the chancellor as in Henrichs . Here, the chancellor issued a detailed opinion and final judgment explaining her ruling, which included over four pages on the jurisdictional issue. Both judicial recusal and jurisdiction were raised before the chancery court; therefore, they are not procedurally barred. However, as will be detailed below, Elle's joint-custody and ineffective-assistance-of-counsel claims were not raised before the chancery court; accordingly, those issues are barred from our review.

1. Judicial Recusal

¶ 15. Elle argues that the chancellor should have recused herself because Elle had filed a federal lawsuit and judicial complaint against her alleging bias, discrimination, and misconduct. Elle reasoned that her legal actions against the chancellor would make her "even more biased" and "incapable of making appropriate decisions"; thus, recusal was necessary.

¶ 16. Mississippi Rule of Appellate Procedure 48B explains the proceedings on a motion to disqualify the trial judge. If a trial judge denies a motion seeking his or her recusal, the movant may seek review of the judge's action by the Mississippi Supreme Court. Id.

¶ 17. The day before the hearing, Elle filed a pro se emergency motion to recuse the chancellor before the supreme court, making many of the same allegations as on appeal. Additionally, she argued that the chancellor's "hostile acts" infringed upon her civil rights because she was denied a Spanish interpreter at the March 31, 2016 hearing. Further, she claimed the chancellor and her attorney had "ex parte communication" which was "disparaging and inappropriate," questioning her ability to understand English, among other matters.

The Mississippi Supreme Court dismissed the motion the same day, without prejudice, because Elle had failed to first seek recusal from the chancellor herself before asking for the supreme court's review and failed to serve the chancellor with the motion.

¶ 18. The rule concerning disqualification of a judge is contained in Canon 3(E)(1)(a) of the Mississippi Code of Judicial Conduct. It states that "[j]udges should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances ... including but not limited to instances where ... the judge has a personal bias or prejudice concerning a party ...." The Mississippi Supreme Court has held "that the objective reasonable person knowing all of the circumstances is the proper standard" to determine if a judge should have recused herself. Dodson v. Singing River Hosp. Sys. , 839 So.2d 530, 532-33 (¶ 9) (Miss. 2003). "[R]ecusal is required when the evidence produces a reasonable doubt as to the judge's impartiality." Id. at 533 (¶ 13). However, it is presumed that judges are qualified and unbiased. Id. at (¶ 10). The appellate court applies a manifest-error standard when reviewing a judge's refusal to recuse. Sullivan v. Maddox , 122 So.3d 75, 81 (¶ 15) (Miss. Ct. App. 2013) (citing Bredemeier v. Jackson , 689 So.2d 770, 774 (Miss. 1997) ).

¶ 19. Elle claimed the chancellor made disparaging comments about her and her family in open court and "ex parte communication" with one of Elle's numerous attorneys before the chancery court. Also, apparently because of the chancellor's unfavorable ruling, Elle claims that the chancellor had an "unconscious bias" against her as exhibited at the March 31 hearing (which Elle did not attend). Further, Elle argues that the chancellor could not be impartial knowing that Elle had filed a federal lawsuit and state bar complaint against her. Elle requests the judgment against her be reversed due to the alleged evidence of bias.

¶ 20. At the March 31, 2016 hearing, the chancellor acknowledged for the record that while she had not been served with a federal lawsuit, she was aware that Elle had filed one in Alabama against her, John, and the cities of Starkville and Columbus, Mississippi. The chancellor stated for the record that she read the complaint but found it proper to move forward with the hearing.

¶ 21. After reviewing the transcripts, we do not find that the chancellor made any disparaging personal comments about Elle. Nor did the transcript indicate any evidence of bias towards Elle, who failed to attend two hearings; one on motions that she filed on March 22, and the final hearing on March 31. However, the chancellor did find Elle's "attempts to manipulate the judicial system ... appalling." We cannot say that it was disparaging or prejudicial that the chancellor reprimanded Elle on the record for not pursuing her own defense. Moreover, Elle did not file a motion to recuse the chancellor in the chancery court even after the Mississippi Supreme Court entered its order. Accordingly, the issue is barred. Further, there is no evidence that the chancellor's impartiality might be reasonably questioned; therefore, the issue is also without merit.

2. Jurisdiction

¶ 22. Next, Elle argues that the chancellor lacked jurisdiction to decide both the initial custody of Aaron and John's subsequent petition to modify custody. "Whether the chancery court had jurisdiction to hear a particular matter is a question of law" that this Court reviews de novo. In re Guardianship of Z.J. , 804 So.2d 1009, 1011 (¶ 9) (Miss. 2002).

¶ 23. Elle makes several arguments regarding the chancery court's alleged lack of jurisdiction to determine the initial petition filed by John on December 20, 2013. Elle has, however, already challenged this initial jurisdiction, and this Court found that her claims to be without merit. It is well established that after a matter is adjudicated, the petitioner is barred from relitigating the claim under the doctrine of res judicata, which "reflects the refusal of the law to tolerate a multiplicity of litigation." Little v. V & G Welding Supply Inc. , 704 So.2d 1336, 1337 (¶ 8) (Miss. 1997). "Res judicata bars all issues that might have been (or could have been) raised and decided in the initial suit, plus all issues that were actually decided in the first cause of action." Id. Accordingly, Elle's jurisdictional arguments related to the initial case are barred. However, Elle is not barred from challenging the chancellor's jurisdiction of the instant case's petition for contempt and to modify custody.

¶ 24. In this matter, Elle, represented by counsel, filed a motion contesting jurisdiction under the UCCJEA on February 24, 2016. She submitted "that Mississippi no longer has exclusive, continuing jurisdiction over the child" because of her move to Alabama; therefore, she argued that the chancery court "is precluded from modifying its original [o]rder as it no longer has jurisdiction to make an initial child custody determination under [ section] 93-27-201." She argued Alabama is now Aaron's "home state" as defined by Mississippi Code Annotated section 93-27-102(g) (Rev. 2013). As proof, Elle claimed she lives and works in Alabama, Aaron is being reared in Alabama, all of Aaron's medical and daycare records are in Alabama, and Aaron has been a permanent resident there since January 2014. Moreover, she noted that in August 2015, the Jefferson County protection order was converted from temporary to permanent. She claimed the above evidence and protection order show neither she nor Aaron had the statutorily required "significant connections" with Mississippi to establish jurisdiction.

¶ 25. On appeal, Elle claims that she is still under the protection of the Jefferson County and Baldwin County orders. However, the record indicates that the Jefferson County order was dismissed in December 2015, and the status of the Baldwin County order is unknown. Elle argues that because the chancellor "disregarded" these Alabama orders, she was deprived of various constitutional rights, including due process, equal protection, and full faith and credit.

¶ 26. "Under the UCCJEA, only one court may assert jurisdiction after an initial custody order has been entered." Deborah H. Bell, Bell on Mississippi Family Law § 18.10 at 459 (1st ed. 2004). The "court issuing [the] initial decree has continuing subject matter jurisdiction over the action and continuing personal jurisdiction over the parties. No other court may modify the decree." Id. (citing Miss. Code Ann. § 93-27-202(1) (Rev. 2013) ). Section 93-27-202(1)(a) provides that a Mississippi court that has made an initial child-custody determination shall have "exclusive, continuing jurisdiction over the determination until:"

(a) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships ....

Elle argues that there is no longer a "significant connection" among her, Aaron, and Mississippi, and "all pertinent evidence" relating to the child is in Alabama. She claims under section 93-27-202(1)(a) that the child's "care, protection, training, and personal relationships" are now in Alabama rather than Mississippi.

¶ 27. We disagree. The chancery court had exclusive, continuing jurisdiction over the action under section 93-27-202(1)(a). Further, there was no order from a Mississippi court determining a lack of significant connections with this state. Additionally, section 93-27-202(1)(b), which allows a court of this state or another state to determine jurisdiction if neither parent resides within the state, is inapplicable, as John still resides in Mississippi. It was within the chancellor's discretion to determine that Mississippi should retain jurisdiction even though Elle and the child had moved to Alabama. Accordingly, the chancery court properly retained jurisdiction.

¶ 28. Elle also argues that certain "required disclosures" pertaining to jurisdiction were not filed; therefore, the chancellor should have dismissed the action. Mississippi Code Annotated section 93-27-209(1) (Rev. 2013) provides that, in child-custody proceedings, each party in its first pleading or in an attached affidavit must provide certain information under oath as to the child's present address and other matters. Elle cites White v. White , 26 So.3d 342 (Miss. 2010), a child-custody modification case, as support. In White , even though the petitioner failed to provide this information, the Mississippi Supreme Court found it was not fatal to jurisdiction for two reasons: the chancery court's jurisdiction is set by the Mississippi Constitution and cannot be diminished by statute; and under the plain language of section 93-27-209(2), the court is not required to stay the proceedings.

Id. at 347 (¶ 13).

¶ 29. John provided this information in his initial petition. In his petition to modify custody, he could not provide the information because, as he explained, he was unaware of where Elle and Aaron were residing at that time. Elle, in response, claimed that she did not reveal her address and other information in her initial answer or in this action due to the Alabama protection orders. Since any failure to provide this information is not fatal to jurisdiction, and it is within the discretion of the chancellor to go forward with the proceeding, this argument is without merit.

¶ 30. We conclude that the chancery court properly retained continuous exclusive jurisdiction over this matter.

3. Custody

¶ 31. Elle argues that the chancellor erred in granting John joint legal custody of the minor child, claiming that she should have sole legal and physical custody. However, neither party raised the issue of legal custody in this case. In her final judgment, the chancellor stated that both parties had requested custody modification: John requested physical custody with supervised visitation by Elle, and Elle requested sole custody, thereby eliminating joint legal custody as previously ordered. Both requests were denied. However, we cannot find in the record where Elle requested modification of custody. It appears that only John requested modification of physical custody to him. Elle merely reasserts her argument from her first appeal related to John's initial petition, which is improper. As stated earlier, "[r]es judicata bars all issues ... that were actually decided in the first cause of action." Little , 704 So.2d at 1337 (¶ 8).

¶ 32. The chancellor, however, thoroughly analyzed modification of custody for both parties, finding Elle failed to appear and provide any proof of a material change of circumstance that was adverse to the child. The chancellor stated the primary reason John was now seeking a custody change was Elle's continued refusal to allow him to exercise court-ordered visitation. The chancellor found that Elle's denial of John's visitation caused a material change in circumstances that adversely affected Aaron because the child "irretrievably lost" the father/son bond that he was entitled to have. The chancellor made a detailed analysis of the Albright factors. Even though most factors favored John or neither party, and none favored Elle, the chancellor opined that removing Aaron from the custody of his mother when he was so young and without any relationship and/or bond with John would not be in the child's best interest. Accordingly, she declined to modify custody to John "at this time," warning that any interference by Elle of John's visitation would be viewed unfavorably. The chancellor also denied Elle's alleged request for termination or limitation of John's visitation privileges-a request we also cannot find in the record.

¶ 33. Elle complains here as she did in her first appeal that the chancellor failed to address the Albright factors. However, Elle appears to be referencing the first action, where the chancellor did not analyze the Albright factors. Here, the chancellor's April 2016 judgment analyzed the Albright factors in great detail. Accordingly, this issue is without merit.

4. Ineffective Assistance of Counsel

¶ 34. Finally, Elle argues that her counsel was ineffective. In January 2016, the attorney at issue entered an appearance. She later represented Elle at the hearing on March 31, 2016, where Elle failed to appear. Elle complains that her counsel "belittled" and "mocked" her at the beginning of the hearing by explaining to the chancellor that Elle had contacted her several times about being unable to travel to the hearing due to a sick child. Elle also criticized her counsel for advising her that she would "lose the case" if she was absent from the hearing.

¶ 35. Elle's argument is procedurally and substantively without merit. The Sixth Amendment right to effective assistance of counsel is triggered in criminal proceedings, not family-law matters. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (discussing the standard of ineffective-assistance-of-counsel claims in the context of criminal proceedings). Notwithstanding the impropriety of the claim, this Court has reviewed the transcript and found, as the chancellor noted at the hearing, that Elle's attorney "did a good job" representing Elle's interests in her absence. Counsel apparently tried to impress upon Elle the importance of her appearance and the impact her absence could have on the outcome of the case. Elle's accusations about her counsel are unfounded, and her argument is without merit.

¶ 36. AFFIRMED.

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

      A pseudonym has been used to protect the identity of the minor child. The parties were never married, and they dispute the nature of their relationship. John claims they dated and he lived with Elle and her two other children for two and one-half years. Elle, however, claims they never dated or lived together, and that Aaron is the product of rape, after which John continued to harass her. John denies these allegations and claims Elle became hostile after he refused to marry her when she became pregnant.

      Both the Baldwin County and Jefferson County protection orders were admitted into evidence at the final hearing; however, the Baldwin County order is not included in the record. The transcript stated they could be "found separate and apart from this record in the Office of the Chancery Court of Oktibbeha County, Mississippi." The Baldwin County order, however, was attached to an emergency motion to recuse the chancellor, filed in the Mississippi Supreme Court the day before the final hearing on this action. Elle's motion was dismissed without prejudice because she had not given the chancellor an opportunity to rule on the request to recuse.

      John testified that he paid three months of child support but quit paying it when Elle disconnected her telephone and moved without telling him where she went.

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

      In Henrichs , the defendant did not respond to the divorce petition in any way or appear in open court. Henrichs , 32 So.3d at 1203-04 (¶¶ 3-4). The plaintiff was granted a divorce and related requests, as the defendant presented no testimony or evidence. Id. at 1204 (¶ 5). The defendant complained on appeal that the chancellor failed to make specific findings of fact, but this Court found the argument lacked merit due to the defendant's failure to appear and defend. Id. at 1205-06 (¶¶ 9-12).

      Neither of these documents is in the appellate record. It is well established that "Mississippi appellate courts may not consider information that is outside the record." Hardy v. Brock , 826 So.2d 71, 76 (¶ 26) (Miss. 2002).

      Elle complains in her appellate brief that her motion for recusal was never heard or ruled upon, but this is incorrect. Obviously, the motion filed with the supreme court was ruled upon. Further, the chancery court docket does not indicate that Elle ever filed a motion for recusal in that court, as directed.

      During the initial action, Elle also made several jurisdictional challenges. Adams , 196 So.3d at 1090 (¶¶ 14-16). Elle filed a motion to dismiss, arguing the chancellor lacked jurisdiction because Elle and her son were residents of Lowndes County, which was denied. Then, the day of trial, Elle made a motion to dismiss for forum non conveniens, which was also denied, and which this Court affirmed. Id. As Adams explains, when the initial action began, Elle, John, and Adams all resided in Mississippi; thus Mississippi was considered the "home state" under Mississippi Code Annotated section 93-27-201(1)(a) (Rev. 2013), even though Elle moved to Alabama sometime after she was served in January 2014. Id. at (¶ 15).

      When Elle was served with John's initial petition, she and Aaron were still residents of Mississippi. Shortly thereafter, Elle and Aaron moved to Alabama, becoming permanent residents around the end of January 2014.

      Section 93-27-201(1) (Rev. 2013) governs jurisdiction to make an initial custody determination.

      Elle obtained the Baldwin County protection order on March 14, 2016, after her motion contesting jurisdiction was filed. At the March 31, 2016 hearing, Elle's attorney stated the Baldwin County protection order was still in effect "as far as [she] knew." However, John was never served with the order and had no knowledge of it. Further, there is no proof in the record regarding whether it is still in effect. The chancellor found that even if that order was still in effect, it would not interfere with jurisdiction of the Oktibbeha Chancery Court.

      The statute states: "If the information required by subsection (1) is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished." Miss. Code Ann. § 93-27-209(2) (emphasis added).

      Elle's counterclaim requested payment of back child support and attorney's fees, and to have John incarcerated for contempt for failure to pay child support.

      In Adams , this Court found no error because only legal custody was at issue, and thus an Albright analysis was not needed. Adams , 196 So.3d at 1089 (¶ 11).

      The record includes pleadings from the initial action, which shows Elle hired and fired several attorneys or represented herself.


author: WESTBROOKS, J., FOR THE COURT:

text:
    Clifford PITTS, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00892-COA
    Court of Appeals of Mississippi.
    June 26, 2018
    ATTORNEY FOR APPELLANT: CLIFFORD PITTS (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER, JACKSON
    BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Clifford Pitts, appearing pro se, appeals the Rankin County Circuit Court's dismissal of his motion for post-conviction relief (PCR). After reviewing Pitts's guilty plea and sentencing hearing transcript, the circuit court found that Pitts was not entitled to any relief. Finding no error, we affirm.

FACTS

¶ 2. On July 26, 2014, Clifford Pitts went to visit T.R.S. T.R.S. is a 36-year-old female with Down Syndrome and mental delay. T.R.S. lived with her niece and caregiver, Madeline Randall. Pitts was married to T.R.S.'s mother who had passed away prior to the date in question. Despite her mother's death, T.R.S. still considered Pitts to be her step-father. Because of their relationship, Randall allowed Pitts to take T.R.S. to Wendy's to get a hamburger during his visit in Jackson.

¶ 3. Pitts contends that he and T.R.S. ordered their food inside, ate their food in the truck, and then he drove by his hotel to show her where he was staying while he was in town. Pitts maintains that they never went inside the hotel at any time.

¶ 4. T.R.S. was rather reserved when she arrived home, which cautioned Randall to suspect something was wrong. T.R.S. told Randall, "It was bad ... he did it again." Randall immediately took T.R.S. to the hospital. T.R.S. later told the investigating officer that after Pitts took her to Wendy's, he took her to his hotel room where Pitts sexually penetrated her, before taking her home.

¶ 5. On July 26, 2014, Pitts was arrested by the Brandon Police Department for two counts of sexual battery. On February 19, 2015, a Rankin County Grand Jury indicted Pitts on two counts of sexual battery of a vulnerable person. On September 8, 2015, Pitts pleaded guilty to the charge of sexual battery of a vulnerable person while in a position of trust or authority. On May 24, 2017, Pitts filed a PCR motion, which the trial court dismissed. Pitts timely appeals.

STANDARD OF REVIEW

¶ 6. "When reviewing a trial court's denial or dismissal of a PCR motion, we will only disturb the trial court's factual findings if they are clearly erroneous; however, we review the trial court's legal conclusions under a de novo standard of review." Purnell v. State , 126 So.3d 949, 951 (¶ 4) (Miss. Ct. App. 2013) (citing Hughes v. State , 106 So.3d 836, 838 (¶ 4) (Miss. Ct. App. 2012) ).

DISCUSSION

I. Whether the indictment failed to charge essential elements rendering it defective.

¶ 7. In September 2015, Pitts pleaded guilty to sexual battery as defined in Mississippi Code Annotated section 97-3-97 (Rev. 2014). The Mississippi Supreme Court has held that "[g]enerally speaking, a valid guilty plea admits all elements of a formal charge and operates as a waiver of all non-jurisdictional defects contained in an indictment or information against a defendant." Conerly v. State , 607 So.2d 1153, 1156 (Miss. 1992). However, we will briefly address Pitts's claims.

¶ 8. Pitts argues that his indictment was legally insufficient and facially defective for failing to charge the essential elements of sexual battery. "[An indictment] must contain the essential facts constituting the offense charged ...."

Jackson v. State , 121 So.3d 313, 318 (¶ 7) (Miss. Ct. App. 2013). "The purpose of the indictment is to provide the accused reasonable notice of the charges against him so that he may prepare an adequate defense." Whatley v. State , 123 So.3d 461, 467 (¶ 11) (Miss. Ct. App. 2013) (quoting Brawner v. State , 947 So.2d 254, 265 (¶ 31) (Miss. 2006) ). "Indictments that track the language of the Mississippi Code are sufficient to provide notice of the crime charged." Graves v. State , 216 So.3d 1152, 1158 (¶ 12) (Miss. 2016) (citing Johnson v. State , 475 So.2d 1136, 1139 (Miss. 1985) ).

¶ 9. Here, the indictment stated that Pitts:

willfully, unlawfully, and intentionally engage[d] in sexual penetration as defined by Mississippi Code Annotated § 97-3-97 with T.R.S., a thirty-four year old female ..., by inserting his fingers and penis in her vagina, at a time when T.R.S. was a vulnerable person and when Clifford Pitts was in a position of authority ... and in violation of section 43-47-18(1)(b) ....

¶ 10. The indictment charged the essential elements of sexual battery, and it tracked the language of the statute set forth in Mississippi Code Annotated section 43-47-18(1)(b) (Rev. 2014). Because of this, we find that Pitts's indictment was sufficient to provide him reasonable notice of the charges against him in such a way that he could adequately prepare a defense. Therefore, this issue is without merit.

II. Whether the indictment was defective for failing to inform Pitts of his position of trust or authority.

¶ 11. Pitts asserts that the indictment was defective for failing to inform him of the exact position of trust or authority he held over T.R.S. Pitts argues that at the time of the alleged crimes against T.R.S. he did not hold any position of authority over T.R.S. Pitts stated that he was T.R.S.'s step-father but when T.R.S.'s mother died he was no longer her step-father. He then argues, because the indictment is based on him being T.R.S.'s step-father, it is defective.

¶ 12. Mississippi Code Annotated section 43-47-18(1)(b) provides:

A person who engages in sexual penetration with a vulnerable person is guilty of sexual battery if the person is in a position of trust or authority over the vulnerable person, including, without limitation, the vulnerable person's teacher, counselor, physician, psychiatrist, psychologist, nurse, certified nursing assistant, direct care worker, technical assistant, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, other relative, caretaker or conservator.

¶ 13. The statute provides examples of positions that suffice and it mentions that the list is not exhaustive. This Court has held that the victim need not be "under the care and control," but rather if the alleged aggressor is "in control of the care of the child" that person can be held accountable for the crime. Blackmon v. State , 803 So.2d 1253 (¶ 13) (Miss. Ct. App. 2002). During the date in question, T.R.S. viewed Pitts as her step-father. Randall also viewed Pitts as T.R.S.'s step-father, a person in a position of trust when allowing him to take T.R.S. to Wendy's. Additionally, when Pitts talked with the investigating officer, Pitts addressed T.R.S. as his step-daughter. Pitts was at least in control of the care of T.R.S. during that time, regardless whether as a step-parent or not, and can be held accountable for such responsibility. Therefore, this issue is without merit.

III. Whether there was a factual basis for Pitts's guilty plea.

¶ 14. Lastly, Pitts states that there was no factual basis for the guilty plea he entered during his hearing because, again, the indictment that was read to him was defective. Pitts further argues that at no time was he ever asked by the trial court to state his factual basis of the charges against him, what the elements of the charges were, or the charges to which he was pleading guilty.

¶ 15. In Porter v. State our Court held:

A defendant can establish a factual basis for a guilty plea simply by pleading guilty; however, the guilty plea must contain factual statements constituting a crime or be accompanied by independent evidence of guilt. In other words, a factual basis is not established by the mere fact that a defendant enters a plea of guilty. Finally, an appellate court is not limited to a review of a defendant's plea transcript when determining if a factual basis existed for a guilty plea.

126 So.3d 68, 72 (¶ 14) (Miss. Ct. App. 2013) (citations and internal quotation marks omitted).

¶ 16. The record reflects that the factual basis and the elements of the crime were read to Pitts. An excerpt of Pitts's plea colloquy provides:

Q: Did you read and sign your petition to enter a guilty plea?
A: Yes, sir.
Q: Do you understand everything in it?
A: Yes, sir.
Q: Have you had an opportunity to fully discuss with your attorneys, Mr. Bill Kirksey and Ms. Chris Huffman, all facts and circumstances relating to the crime you're pleading guilty to?
A: Yes, sir.
....
Q: Did your discussions with them include the elements of the crime?
A: Yes, sir.
....
Q: All right. The elements of Count 1 are on or about July 26, 2014, in Rankin County, Mississippi, you ... did willfully, unlawfully, and intentionally engage in sexual penetration with T.R.S., a 34-year-old female ... by inserting your finger and penis in her vagina, at a time when T.R.S. was a vulnerable adult and you were in a position of trust or authority. Do you understand those elements?
A: Yes, sir.
Q: What is the factual basis?
Ms. Purnell: Your Honor, if the State were to proceed to trial, they would show on July 26, 2014, here in Rankin County, this Defendant being a person above the age of 18 years engaged in sexual penetration of T.R.S., who was a 34-year-old vulnerable person, and the penetration was gained by putting his finger and penis in her vagina.
Q: Do you have any disagreement with the factual basis?
A: No, sir.

¶ 17. Although on the record it was never stated what the crime was, Pitts was asked whether he had an opportunity to discuss with his attorneys all facts and circumstances relating to the charges to which he pleaded guilty. Pitts answered affirmatively. After reviewing the record, Pitts's guilty plea contained factual statements which demonstrated the elements of a crime. Accordingly, we find this issue is without merit.

¶ 18. Finding no error, this Court affirms Pitts's conviction and sentence for the foregoing reasons.

¶ 19. AFFIRMED.

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

      To protect the individual's identity, we will refer to her as T.R.S.

      In exchange for the guilty plea as to Count 1, the trial court granted the district attorney's motion to enter an Order of Nolle Prosequi as to Count II.