author: IRVING, J.,

text:
    William S. HARRIS, Appellant, v. TOM GRIFFITH WATER WELL AND CONDUCTOR SERVICE, INC., Appellee.
    No. 2007-CA-00639-COA.
    Court of Appeals of Mississippi.
    Jan. 27, 2009.
    Rehearing Denied July 21, 2009.

      L. Clark Hicks, Jr., Hattiesburg, L. Grant Bennett, attorneys for appellant.
    Renee M. Porter, attorney for appellee.
    Before KING, C.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. William Harris filed a breach of contract lawsuit against his former employer, Tom Griffith Water Well and Conductor Service, Inc. (Griffith Water Well, alternatively, Griffith). A trial was held, and the Marion County Chancery Court dismissed the complaint and entered a judgment in favor of Griffith. Aggrieved, Harris appeals and asserts: (1) that the chancellor’s findings were against the overwhelming weight of the evidence, (2) that the chancellor erred in considering the affirmative defenses of statute of limitations and laches in reaching his decision, and (3) that the chancellor erred in finding that Harris and Griffith did not have an enforceable contract.

¶ 2. Finding error, we reverse and render and remand for further proceedings consistent with this opinion.

FACTS

¶ 3. In 1978, Griffith started Griffith Water Well. He later started an environmental drilling company that operates out of the same office as Griffith Water Well. Andy Rushing worked as a salesman for Griffith’s environmental drilling company, and he and Griffith entered into an agreement whereby Rushing received a commission for sales that he brought into the company. In 1992, Griffith’s long-time friend, Harris, began working at Griffith Water Well on a part-time basis. Initially, Harris performed office work for Griffith, but around 1993 or 1994, Harris expressed an interest in becoming a salesman for Griffith Water Well. Thereafter, he and Griffith entered into a verbal agreement whereby Griffith agreed to pay Harris a ten percent commission on all of the gross sales that Harris brought into the company. Harris left the company in May 2002, after Griffith informed him that he could no longer afford to keep him on.

¶4. Harris filed suit on July 11, 2002, seeking to recover: (1) “[a] full and complete accounting of all sales generated by [him] on behalf of [Griffith] from and after January 1, 1994, through December 31, 2002,” (2) “[compensation in an amount sufficient to satisfy the terms of the agreement of compensation between the parties in an amount no less than One Hundred Fourteen Thousand Six Hundred Eighty Four Dollars and 99/100 ($114,684.99),” (3) “[a]n equitable lien to be placed on all property owned by [Griffith] for the benefit of the Plaintiff until such time as all sums due have been paid in full,” and (4) “[p]re-[judgment] and post[-]judgment interest, attorney’s fees, and all costs of court.” Although Harris alleges that Griffith owes him money for sales that he made pursuant to their commission agreement, Griffith contends that he terminated the commission agreement in either 1995 or 1996. The case went to trial on February 15, 2007.

¶ 5. Harris testified that he went to work for Griffith Water Well in December 1992 on a part-time basis before becoming a full-time employee in January 1993. Harris stated that he initially performed office duties and began making sales for Griffith Water Well toward the end of 1993. Harris was not certain whether he approached Griffith in December 1993 or January 1994 about the two of them entering into an agreement whereby Harris would continue to perform office work for Griffith Water Well and also would take on the added duties of a commissioned salesman, receiving a ten-percent commission on all gross sales that he brought into the company. Harris testified that Griffith accepted his offer and that the agreement began at that time. Harris also stated that under this agreement, he would be paid as an independent contractor, per Griffith’s suggestion.

¶ 6. According to Harris, after he generated sales, he would present an invoice to Griffith, who would issue him two checks each week: one for the administrative work that he performed as an employee, wherein taxes were taken out, and one for money that he earned as an independent contractor pursuant to their commission agreement. No taxes were withheld from the commissions paid to Harris. Harris stated that Griffith paid him sporadically in the beginning but eventually got to a point where he paid him every week. Harris recalled that Griffith never paid an entire invoice at one time, but rather, Griffith “paid on the account weekly over a long period of time, and as the total amount of money that he had paid in equaled what was owed on an invoice, [that invoice] was retired, and so he was always paying on his account.” Harris explained that Griffith’s financial problems prevented him from being able to pay an entire invoice at a time. Harris stated that it was common for Griffith to get behind on payments, so he would inform him, verbally, approximately twice a year* that the debt was accumulating. Harris stated that, in an effort to catch up, Griffith would frequently issue him large checks, but that Griffith would later fall back into the same routine. Further, Harris was clear that Griffith never caught up completely. Harris issued his last invoice to Griffith on December 31, 2001.

¶ 7. Harris testified that in May 2002, Griffith informed him that he could not afford to continue paying him pursuant the terms of their commission agreement. However, Harris was adamant that prior to this time, he and Griffith had not engaged in any discussion with respect to changing the terms of compensation to provide for compensation on a fixed weekly-salary basis rather than the percentage-of-gross-sales-commission basis to which they had initially agreed. Harris further testified that he then asked Griffith about the money that Griffith owed him and that Griffith informed him that he did not plan to pay him.

¶ 8. On cross-examination, Harris denied being party to a conversation with Griffith wherein Griffith asked him to accept payment of $1,000 per week in lieu of the ten percent commission on gross sales that he had been receiving. Harris also stated that he continued to issue invoices to Griffith because Griffith never told him to stop doing so. Harris admitted that he never gave Griffith anything in writing to let Griffith know that Griffith was behind in his payments; however, Harris contended that Griffith was aware that he was behind because Harris would inform him of such from time to time. Griffith’s attorney pointed out that Harris did not have any record from Griffith indicating that Griffith owed Harris any back commissions.

¶ 9. Harry Kenneth Lefoldt Jr., a certified public accountant hired by Harris, testified as an expert and concluded that Griffith owes Harris $144,638.07, plus prejudgment interest of $56,597 though February 15, 2007, the date of trial. Lefoldt further testified that he took the sum of the payments that Griffith had made and subtracted them from the sum of invoices from two categories: (1) invoices submitted to Griffith from 1995 to 2001, and (2) invoices for commissions earned but not submitted in the amount of $11,142.13. Lefoldt testified that he used a “first in/ first out” methodology to arrive at the balance. He explained that the first in/ first out methodology is a method whereby payments that are received are applied against the earliest invoices first.

¶ 10. Griffith testified in his defense. He stated that he and Rushing entered into an agreement whereby Rushing would receive a ten percent commission on gross sales that he brought into the company. Thereafter, Harris, who was not working for him when he made the agreement with Rushing, asked him if he they could enter into the same agreement. Griffith agreed, and the two of them entered into the same agreement that Griffith had with Rushing. Griffith testified that, in either 1995 or 1996, he informed Harris and Rushing that from that point forward he would pay each of them a “set amount” of $1,000 a week. Griffith stated that at the time that they reached this new agreement, he was behind in payments to both Harris and Rushing. However, he stated that he paid Harris back in full over the following two years.

¶ 11. Griffith recalled an incident when Harris attempted to give him an invoice after he had informed Harris that he could no longer pay him the ten percent commission. Griffith stated that he told Harris not to give him the invoice after explaining to Harris that they were no longer “on this.” According to Griffith, Harris responded by saying, “Well, I just want to keep score. I want to keep up with it.” Griffith stated that he then told Harris, “okay, but we’re not on it.” Griffith stated that Harris continued to work for him and never mentioned that he felt as though Griffith owed him money pursuant to the commission agreement.

¶ 12. Griffith stated that he learned for the first time at the hearing that Harris did not consider his payroll check to be a part of his sales commission. Griffith also stated that he did not know that Harris was under the impression that he owed him money until he received notice of the lawsuit. Griffith stated that in early 2002 he informed Harris that he could no longer afford to pay him. Griffith stated that it was at this point that Harris left his employment.

¶ 13. On cross-examination, Harris’s attorney pointed out that even though Griffith testified that he paid Harris all of the money that he owed him pursuant to the commission agreement, Griffith does not have documentation to reflect this. Harris’s attorney asked Griffith how he knew when the money that he owed pursuant to the ten percent commission agreement had been paid in full. Griffith responded by saying that Harris “kept up with it” and that he kept paying until Harris told him that it was paid in full. Harris’s attorney pressed Griffith to explain how he could say with certainty that he paid Harris in full when there is no documentation to support his assertion. Griffith responded by stating that the ledgers and invoices were created by Harris. Harris’s attorney then posed the following question to Griffith, “[y]our testimony is that you were relying on him, were you not?” Griffith responded by saying that he relied on Harris until Harris began saying that he owed him money. Griffith vehemently denied that Harris ever told him that he owed Harris money pursuant to the commission agreement.

¶ 14. Harris’s attorney pointed out that Griffith’s trial testimony differed from his deposition testimony on this issue. During his deposition, when asked whether he had paid Harris all of the money relating to the commission agreement, Griffith stated that: “Up until some point in time, to the best of my knowledge, I paid him. I do not know for certain, but I’m almost sure. I feel like I did, but I may not have.” When confronted with his response from the deposition, Griffith stated, “I don’t know why I said that then, but I did pay him all of it.” Griffith also stated that although he agreed to pay Harris a fixed amount of $1,000 a week, there were some weeks that he simply could not afford to do so. Thus, the payments that Harris received fluctuated, and on some weeks, Harris received well below $1,000.

¶ 15. On redirect, Griffith stated that Harris and Rushing continued to work for him when he became unable to continue with the commission agreement and that they agreed upon a one thousand dollar per week salary. Griffith stated that when he realized that it would be impossible for him to make full payment to Harris and Rushing for a particular week, he would let them know and that he would eventually pay them for that week.

¶ 16. Bethany Lee, Griffith’s bookkeeper, testified at the trial and stated that at some point in time Griffith began to pay Harris a certain amount each week. Lee stated that Harris never informed her that Griffith owed him any money and that there is no record of Griffith owing Harris money. Lee testified that she had never seen any invoices from Harris.

¶ 17. On cross-examination, Lee stated that Harris received two checks, a payroll check and a sales check. Lee stated that she knew that Harris and Rushing were receiving commissions on sales that they brought in but that she was not aware of the details of the agreement. Harris’s attorney asked Lee, “[d]id the commission checks continue, the sales expense commission checks continue from the time that you got there all the way up till 2002, when you left?” Lee answered in the affirmative. Nevertheless, on redirect, Lee stated that she recalled that Harris and Rushing began receiving a fixed amount each week, but she could not remember when that had occurred. Specifically, Lee testified that, at some point, Griffith informed her that he would begin paying Harris and Rushing a certain amount each week. According to Lee, from that point forward, she issued Harris and Rushing checks for a certain amount each week.

¶ 18. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Weight of the Evidence

¶ 19. “This Court always reviews a chancellor’s findings of fact, but we do not disturb the factual findings of a chancellor unless such findings are manifestly wrong or clearly erroneous.” Vaughn v. Vaughn, 798 So.2d 431, 433(¶ 9) (Miss.2001) (citing Bowers Window & Door Co., v. Dearman, 549 So.2d 1309, 1312-13 (Miss.1989)). “Findings of the chancellor will not be disturbed or set aside on appeal unless the decision of the trial court is manifestly wrong and not supported by substantial credible evidence, or unless an erroneous legal standard was applied.” Id. at 433-34(119) (citing Pearson v. Pearson, 761 So.2d 157, 162(¶ 14) (Miss.2000)).

¶ 20. Harris contends that several findings reached by the chancellor were against the overwhelming weight of the evidence. Harris argues that the chancellor’s finding that he was a “salaried employee,” and not an independent contractor, is not supported by the record. As stated, both Harris and Griffith agree that, for the procurement of sales by Harris, Harris was considered to be, and paid as, an independent contractor. This arrangement continued until at least 1995 or 1996. Also, there is no dispute that until either 1995 or 1996, Harris was considered, and paid as, an employee for separate office, administrative work that he performed. Further, there is no dispute that pursuant to their sales agreement, Harris was to be paid ten percent of the gross sales that he brought into the company. However, what is in dispute is whether a novation of the agreement occurred that changed Harris’s status from an independent contractor to an employee, and whether Harris was paid all that was due him under the independent contractor sales agreement.

¶ 21. Harris argues that he continued to be an independent contractor and worked pursuant to the commission agreement from the time they entered into the agreement until he left Griffith Water Well in 2002. On the other hand, Griffith argues that the agreement was changed in either 1995 or 1996 because he was unable to keep up his end of their agreement. It should be noted here that Griffith did not specifically testify that Harris agreed to the change. Rather, he testified that he told Harris that that was what he was going to do and that that is what he did. He further testified that Harris continued to work for him thereafter. Therefore, accepting Griffith’s testimony as true, the most that can be said is that Harris acquiesced in the change.

¶ 22. Griffith testified as follows when questioned by his attorney regarding when the commission agreement ended:

Q. Mr.- Griffith, you paid Mr. Harris 10 percent of his commissions for a time period. When did that stop and what happened to cause that to stop?
A. I don’t know exactly when that happened, but it was somewhere around 1995, give or take, maybe '96.1 don’t believe it was before '95. But that’s when I just — during that time period, somewhere in there, I told Bill and Andy, I said, [tjhings are getting out of whack on this 10 percent agreement, we’ve got. I said, [w]e need to go to a set amount, and I said that — we were approaching 1.4 million in sales, somewhere in that area, and as I said a while ago, I wanted to keep it kind of balanced between the house and the two salesmen. I said, I want to just pay y’all $1,000 a month.
Q. $1,000 a month?
A. Per month. Each one $1,000. Bill $1,000 and Andy $1,000.
Q. Per month or per week?
A. I mean per week. Yeah, per week, which was $52,000 a year. I told them that’s how much I wanted to pay, and I said, [tjhat’s what I want to do, and that’s what we did. And just to real quickly kind of clear up about something that was going on while we’re talking about that amount, the $750 sales that Bill was getting was the amount he wanted to draw through his sales company, Harris & Associates. Then the other $300 he wanted to draw as salary. And the way I recall it, it had nothing to do with him working in the office. That was his total sales commission. That’s how it gets to $1,000, the $300 plus $750. I don’t remember why it was $50. But I also have some notes here concerning Andy Rushing and what I was paying the companion salesmen on the other side, and I was trying to keep them relatively level in salaries because they were doing relatively level work.

¶23. It is noteworthy that Griffith’s response to a pretrial interrogatory was markedly different from his trial testimony. During discovery, he was asked the following interrogatory: “Please state the nature of your relationship with the Plaintiff, including the specific dollar amounts or percentages that were intended as compensation under the arrangement, and describe the services to be performed by the Plaintiff in return for such compensation.” Griffith’s response was:

I started my business as Tom Griffith Water Well & Plumbing Service in 1978. In 1980 I started Tom Griffith Water Well & Conductor Service, Inc. In 1992 Mr. Harris (later referred to as Bill) came to work as an independent contractor for me. When Bill came to work for me our verbal agreement was that he would make 10% off the gross sales that [he] generated. Andy Rushing was under the same agreement with regard to environmental sales. At the time this agreement was made it was not made in writing because we had no way to know where this was all going or any history to review how an agreement would work. The final part of our verbal agreement was we will see how this goes. Later it became apparent that this agreement would not work because there was no way to determine which sales he generated. There were numerous mergers, acquisitions, and customer employment changes, etc. which made it impossible to determine who generated [the] sales. Therefore, I started paying him $750.00, a week. This continued for three or four years. I later terminated him after September 11 when we lost over 1/3 of [the] total sales. I could not afford the overhead of my staff at that time. I no longer had the money to pay him any money. Bill worked under the arrangement for $750.00, for years before he left. Bill was not my employee. He was a private contractor.

(Emphasis added). Griffith never mentioned anything at trial about an agreement whereby he agreed to pay Harris seven hundred and fifty dollars per week. As evidenced by the colloquy above, Griffith testified that when he could no longer afford to pay Hands pursuant to their commission agreement, he agreed to pay Harris $1,000 per week, not seven hundred and fifty dollars per week.

¶ 24. In his judgment, the chancellor stated that “[sjometime prior to 1999 Griffith changed Harrises] employment status and began paying him $1,000 each week ... with Griffith testifying that the change was necessary as a result of a downturn in gross income and sales for the company, and that he thought $1,000 weekly was a good income for Harris.” The chancellor went on to find that “there was essentially a contract of employment at will between the parties, initially based on Harris receiving a commission, as reflected by Griffith’s payment method, and then changed to a weekly salary, as based on Griffith’s payment method between 1999 and 2002.”

¶ 25. The chancellor’s finding that the agreement changed prior to 1999 is consistent with Griffith’s testimony; however, it should be noted that Griffith testified that he changed the terms of payment to a fixed amount in either 1995 or 1996. Therefore, the chancellor’s finding that the payment method changed “between 1999 and 2002” is inconsistent with Griffith’s testimony. The documentary evidence from Griffith covered the period of time from January 7, 1997, until May 15, 2002. This documentation shows that payments to Harris fluctuated during this entire period of time. It is impossible to discern from this documentation what type of payment arrangement was being employed. More importantly, it is impossible to determine that Harris was paid a salary of $1,000 per week.

¶ 26. Griffith’s testimony was that the one-thousand-dollar payment was divided between the two checks that Harris received each week. We note that, at times, the two checks that Harris received for a particular week totaled more than $1,000 and at other times fell far below $1,000. For example, in September 1998, Harris received checks for $750 on the 4th, 11th, 18th, and 25th. These checks are coded as “sales expense” in Griffith’s records. Griffith’s records also reflect that on the 6th, 13th, 20th, and 27th, Harris received a check for $271. Griffith testified that the $271 represented the net pay of a $300 payment made to Harris. Accepting Griffith’s testimony as true would result in a finding that Griffith paid Harris $1,050 for those weeks instead of $1,000, which according to Griffith, was the agreed weekly salary. Griffith could offer no explanation why the payments were fifty dollars more than the agreed upon amount. On the other hand, in February 2002, Harris received checks on the 3rd, 10th, 17th, and 24th. The checks received on the 3rd and the 10th were in the amount of $249.05 each, and the checks received on the 17th and the 24th were in the amount of $255.05. The checks received on the 6th, 13th, 20th, and 27th were in the amount of $200 each. As stated, Griffith could offer no explanation for the extra amount. In fact, Griffith testified that: “That was his [Harris’s] total sales commission. That’s how it gets to $1,000, the $300 plus $750. I don’t remember why it was $50.”

¶ 27. At oral argument, Griffith’s attorney was unable to bring any clarification to the muddled situation. For example, she stated to this Court that between June 19, 1998, and April 12,1999, Griffith paid Harris $750 and that between April 16, 1999, and November 1999, the payment was $500. She further stated that the payment went down to $250 after September 11, 2001. Griffith’s documentation corroborates his counsel’s statement at oral argument that after September 11, 2001, the payments went down to $250. There is no testimony, nor any assertion made during oral argument, that Harris and Griffith ever changed the terms of their agreement a second time to reflect that Griffith would pay Harris whatever he could afford to pay him at the time. Clearly, Griffith was not paying Harris according to the terms of the agreement that he testified that they entered into.

¶ 28. Based on our review of the record, we cannot find substantial evidence of a novation of the initial sales commission agreement. In this regard, we are mindful that Griffith testified that there was and that the chancellor, as the finder of fact, was entitled to accept Griffith’s assertion that there was a novation. However, it cannot be overlooked that Griffith could not state with any specificity as to when the novation occurred, nor could he produce any documentation that corroborated his testimony. Under these circumstances, we cannot say that there was substantial evidence that a novation in fact occurred. Therefore, we reverse and render the chancellor’s determination that Harris and Griffith entered into a novation of their agreement and thereafter entered into an agreement whereby Griffith would pay Harris a weekly payment of $1,000. The chancellor reached the conclusion that the agreement between Harris and Griffith had been changed based on his conclusion that the documentation bears that out, but as we have pointed out, neither the documentation nor the testimony in the record supports this conclusion. Therefore, we remand this case to the chancellor for the purpose of determining the amount owed to Harris pursuant to the commissioned-based contract that Griffith and Harris entered into.

2. Statute of Limitations, Laches, and Course of Dealing

¶ 29. In his second issue, Harris offers several reasons as to why we should hold the trial court in error for relying on the statute of limitations, laches, and course of dealing in rendering its decision. First, Harris contends that Griffith waived his right to assert the aforementioned affirmative defenses, as Griffith asserted them for the first time in his motion for summary judgment which was filed on February 7, 2007, eight days before trial. Although Griffith filed a pleading that he entitled “Affirmative Defenses and Answer to First Amended Complaint, Motion to Compel, and a Motion to Dismiss” on February 13, 2006, he did not mention the statute of limitations, laches, or course of dealing in his motion. Rather, Griffith simply stated that he was answering the complaint “without waiving any of the available defenses.” Also, in his answer, Griffith stated that he had presented the court with affirmative defenses; however, none were specifically raised. The chancellor, on the first day of trial, overruled Griffith’s motion for summary judgment after concluding that a genuine issue of material fact existed. Nevertheless, in his judgment, the chancellor found that: “Griffith argues the statute of limitations and laches as defenses to Harris’s failure to make demand or otherwise memorialize amounts due him from much earlier commission invoices.”

¶ 30. Harris argues that the chancellor erred in considering affirmative defenses that were not raised in Griffith’s answer. Rule 8(c) of the Mississippi Rules of Civil Procedure provides that “[i]n pleading to a preceding pleading, a party shall set forth affirmatively ... laches ... statute of limitations ... and any other matter constituting an avoidance or affirmative defense.” (Emphasis added). Further, Rule 12(b) of the Mississippi Rules of Civil Procedure requires that “[e]very defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading....” As stated, Griffith did not assert any affirmative defenses in his answer to Harris’s complaint; rather, he waited and asserted them in his motion for summary judgment, which was over four years later. It is settled law in this state that when a responsive pleading is required, all affirmative defenses must be raised in that pleading. Miss. Dep’t of Human Servs. v. Guidry, 830 So.2d 628, 634(¶ 20) (Miss.2002) (citing M.R.C.P. 12(b)). Therefore, we agree with Harris that the chancellor erred in relying on these affirmative defenses in reaching his judgment.

¶ 31. Second, Harris argues that even if we were to conclude that Griffith did not waive his right to assert the affirmative defenses, Griffith should be barred from doing so because Griffith’s assertion, some four and a half years after the initial complaint was filed, constitutes excessive delay. We decline to address this issue, as we have already concluded that Griffith waived his right to assert the affirmative defenses because he did not do so in his first responsive pleading as required by Rule 12.

¶ 32. Third, Harris argues that because the chancellor overruled Griffith’s motion for summary judgment wherein he asserted the statute of limitations, laches, and course of dealing, the chancellor indirectly found that the statute of limitations, lach-es, and course of dealing did not apply. The chancellor never ruled on Griffith’s motion for summary judgment, and we are not prepared to conclude that the chancellor indirectly found that the statute of limitations, laches, and course of dealing did not apply simply because he overruled Griffith’s motion. The most logical conclusion that can be drawn from the chancellor’s overruling of Griffith’s motion for summary judgment is that the chancellor found that a genuine issue of material fact existed.

3. Enforceable Contract

¶ 33. In his final issue, Harris argues that the chancellor erred in finding that he and Griffith did not have an enforceable contract. We find that the chancellor did in fact find that Harris and Griffith entered into an enforceable contract. Thus, the chancellor did not make the finding that Harris contends he made. The chancellor found that the parties did not enter into a contract that required Griffith to pay a commission to Harris until Harris was terminated or left Griffith’s employment. Rather, the chancellor found that the parties initially entered into “a contract of employment at will based on Harris receiving a commission, as reflected by Griffith’s payment method” but that the contract was “changed to a weekly salary, ... based on Griffith’s payment method between 1999 and 2002.”

¶ 34. The wording utilized by the chancellor suggests that the chancellor determined the nature of the at-will contract by the method of payment employed by Griffith at any given time, that is, whether it was an at-will independent contractor contract or an at-will employee contract. This view of the nature of the contract does not comport with the undisputed facts in the record. Both Harris and Griffith agree that they entered into an oral contract that required Griffith to pay Harris a ten percent commission on all sales procured by Harris. Thus, the nature of the contract was determined by the agreement of the parties, not the manner of payment employed by one of the parties to the contract. Further, the record is clear that both Harris and Griffith agreed that during this commission arrangement, Harris was to be considered an independent contractor. The bone of contention between Harris and Griffith centers on whether they later agreed to change from a commission, independent contractor agreement to a salaried, employee agreement. In resolving this issue, the chancellor looked to what he determined to be the manner of payment and Harris’s continued employment after Griffith allegedly announced to Harris that Griffith would no longer pay the commission for sales procured. In other words, in his judgment, the chancellor found that Griffith terminated the commission agreement and that Harris acquiesced in a course of dealing that demonstrated that the agreement had been changed to one wherein he received $1,000 a week, by accepting the payment. As we have already noted, we do not find substantial evidence in the record to support the chancellor’s finding. We will not rediscuss our finding here.

CONCLUSION

¶ 35. We find that there is not substantial evidence in the record to support the chancellor’s finding that there was a mutually agreed upon novation of the oral contract that Harris and Griffith had entered into, which required Griffith to pay Harris a ten percent commission on all sales procured by Hams. Our finding is based on the fact that the chancellor supported his finding of novation on the method of payment made between 1998 and 1999, as evidenced by the payments reflected on Griffith’s financial ledgers, and Harris’s acceptance of those payments. Despite the chancellor’s finding, a close examination of the referenced financial records do not reveal substantial evidence of a change in the method of payment. First, Griffith did not have any records reflecting the method of payment before January 1997, even though it is undisputed that the parties’ commission agreement began in either December 1993 or January 1994. As stated, Griffith produced no payment records for the period of time between January 1994 and December 1996. Further, Griffith testified that the commission-based agreement changed in 1995 or 1996 but that he did not believe it occurred before 1995. Therefore, based on the undisputed evidence, payments under the commission arrangement were made for at least one year. Yet, there were no payment records from Griffith for that year or any other year that the chancellor could use for comparison with the payment records for the 1998-1999 period of time utilized by the chancellor in arriving at his decision. Second, even the payment records for the 1998-1999 period do not divulge substantial evidence relevant to the question of whether the payments were being made to a salaried employee or an independent contractor. This is because the records do not reveal gross and net payments. Third, the payment records, as well as the testimony, reveal that Harris was not paid a salary of $1,000 per week after the period of time when he allegedly acquiesced in accepting such a payment arrangement. As already pointed out, Griffith at trial and his lawyer at oral argument admitted that during a period of time before Harris terminated his employment, Griffith only paid Harris $250 per week. Therefore, we reverse and render the chancellor’s finding of a novation of the commission based contract and remand this case to the chancellor for the purpose of determining the amount owed to Harris pursuant to the commission-based contract that the parties entered into.

¶ 36. THE JUDGMENT OF THE MARION COUNTY CHANCERY COURT IS REVERSED AND RENDERED AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

KING, C.J., LEE AND MYERS, P.JJ., BARNES AND ISHEE, JJ., CONCUR. ROBERTS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, J., DISSENTS WITHO.UT SEPARATE WRITTEN OPINION. CARLTON, J., NOT PARTICIPATING.

      . We quote these issues verbatim from Harris’s amended complaint that was filed on December 9, 2005.

      . Actually, Lefoldt testified that the amount owed was $171,938.07 but that Harris gave Griffith a one hundred dollar per week credit, which totaled $27,300 ($5,200 per year for five and a quarter years). It is not clear in the record what this credit was for. However, during oral argument, Harris's attorney seemed to indicate that Harris offered this credit as a gesture of goodwill, apparently because the volume of the separate administrative work that Harris was performing for Griffith had been a bit low for the amount of salary being paid. In arriving at the $144,638.07 figure, Lefoldt used records supplied by both Harris and Griffith Water Well. However, he stated that he relied on the company's records for a determination of how much Harris had been paid. He testified that the documents that he reviewed are consistent with Harris's deposition testimony that Harris was an independent contractor, as the records show that the payments made to Harris were coded as sales expenses.

      . During oral argument, Harris's attorney stated that his client was willing to forgive the $11,142.13 in earned but unbilled commissions. Therefore, the amount that Hams contends he is owed is $133,495.94, plus prejudgment interest in the amount of $56,597, for a total of $190,092.94.

      . The contention is better stated that the chancellor erred in finding that there was a novation of the independent contractor sales contract, changing it to a salaried, employee at will agreement, because both parties agree that the initial sales agreement provided that Harris would be an independent contractor and receive a ten percent commission on all sales made.

      . Even though Griffith testified that the agreement changed in either 1995 or 1996, we start by looking at records from September 1998 to determine whether the record supports the chancellor’s findings because this is the earliest period for which we can cross-reference checks issued to Harris that totaled approximately $1,000.


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Rodrick MAGGITT a/k/a Roderick Maggitt, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CP-01057-COA.
    Court of Appeals of Mississippi.
    May 12, 2009.
    Rehearing Denied Sept. 29, 2009.
    Certiorari Denied Jan. 28, 2010.

      Rodrick Maggitt, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Rodrick Maggitt pleaded guilty to statutory rape. He was sentenced to serve a term of twenty years in the custody of the Mississippi Department of Corrections with seven years suspended, five years of probation under the supervision of the MDOC, and to register as a sex offender with the Mississippi Department of Public Safety. Maggitt then filed a motion for post-conviction relief in the Grenada County Circuit Court, which was denied. Aggrieved, Maggitt appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. The following facts are taken from Maggitt’s indictment and plea hearing. Maggitt was arrested and charged with statutory rape. Maggitt, a forty-four-year-old male, was caught having sexual intercourse with a fourteen-year-old female. The girl’s older sister discovered the two having sexual intercourse in a bedroom.

¶ 3. Maggitt was arrested and indicted on charges of statutory rape pursuant to Mississippi Code Annotated section 97-3-65(l)(b) (Supp.2008). Maggitt pleaded guilty to the charge and was sentenced to terms previously stated.

¶ 4. Maggitt filed his motion for post-conviction relief with the Grenada County Circuit Court, which was denied. Aggrieved, he now appeals the denial alleging four issues: (1) his indictment was defective; (2) the trial court lacked jurisdiction; (3) his constitutional right to a speedy trial was violated; (4) he received ineffective assistance of counsel. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 5. “When reviewing a lower court’s decision to deny a petition for post-conviction relief[,] this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). “However, where questions of law are raised the applicable standard of review is de novo.” Id.

DISCUSSION

1. Defective Indictment and Lack of Jurisdiction

¶ 6. For the sake of judicial economy, we will address these arguments together. Maggitt argues that his indictment was defective because it did not contain the affidavit of the grand jury foreman, which deprived the trial court of jurisdiction over his case.

¶ 7. This Court has reiterated that “ ‘an argument asserting defectiveness of an indictment based on the lack of an accompanying affidavit from the grand jury foreman is a non-jurisdictional defect which is waived’ upon entry of a guilty plea.” Morgan v. State, 966 So.2d 204, 207(¶ 15) (Miss.App.Ct.2007) (citing Chandler v. State, 883 So.2d 614, 616(¶ 5) (Miss.Ct.App.2004)).

¶ 8. Accordingly, Maggitt, by pleading guilty to the charges, waived his argument that the indictment was faulty; therefore, his argument that the trial court lacked jurisdiction fails. See Miller v. State, 834 So.2d 721, 723(¶ 7) (Miss.Ct.App.2003). These issues are without merit.

2. Speedy Trial

¶ 9. Maggitt contends that his Sixth Amendment right to a speedy trial was violated by three hundred and ten days lapsing between his arrest and indictment.

¶ 10. “[A] valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial including the right to a speedy trial, whether of constitutional or statutory origin.” Madden v. State, 991 So.2d 1231, 1237(¶ 25) (Miss.App.Ct.2008).

¶ 11. Like his previous two arguments, Maggitt waived his right to a speedy trial upon him pleading guilty. Therefore, this issue is without merit.

3.Ineffective Assistance of Counsel

¶ 12. To prove ineffective assistance of counsel, a defendant must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with the defendant to prove both prongs. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694,104 S.Ct. 2052.

¶ 13. Maggitt’s assertions of ineffective assistance of counsel are legion: failure to investigate, failure to pursue a speedy trial, and failure to cure the defects in his indictment. Maggitt also contends that his counsel coerced him into pleading guilty. Maggitt makes these broad assertions, yet he does not provide any factual or evidentiary basis to support his claims.

¶ 14. Additionally, Maggitt stated during his guilty plea hearing that he was satisfied with his counsel’s assistance. The following exchange took place during the plea colloquy:

The Court: Has Mr. Lester [counsel] done things for you that you would have had a lawyer do for you while representing you?
Maggitt: Yes, sir.
The Court: Has he done anything that you disagree with or anything that you thought was against his interest — your interest?
Maggitt: No, sir.
The Court: Has he in all respects met the expectations of what you would have thought a lawyer representing you in this matter should have done for you?
Maggitt: Yes, sir.
The Court: And has he twisted your arm or anyway forced you into pleading guilty in this case?
Maggitt: No, sir.
The Court: And are you completely and totally satisfied in all respects with the representation that you have received from [counsel]?
Maggitt: Yes, sir.
The Court: And are you totally satisfied in all respects?
Maggitt: Yes.

Moreover, there was ample evidence to convict Maggitt of statutory rape. The State was prepared to call the victim and her sister to testify if needed. Both would have testified that Maggitt, a forty-four-year-old man, engaged in sexual intercourse with a fourteen-year-old female. There is no reasonable probability that the outcome of the case would have been different. Accordingly, this issue is without merit.

¶ 15. THE JUDGMENT OF THE GRENADA COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO GRENADA COUNTY.

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


author: ISHEE, J,

text:
    In re DISSOLUTION OF DEMOVILLE PARTNERSHIP. Margaret Demoville, Appellant, v. Dixie Demoville Johnson, Appellee. In the Matter of Margie Allen Demoville, Deceased. Margaret Demoville, Appellant, v. Dixie Demoville Johnson, Appellee.
    Nos. 2007-CA-00141-COA, 2007-CA-00189-COA.
    Court of Appeals of Mississippi.
    May 26, 2009.
    Rehearing Denied Oct. 13, 2009.
    Certiorari Denied Jan. 28, 2010.

      T. Jackson Lyons, Jackson, Jim Waide, Tupelo, attorneys for appellant.
    William M. Beasley, Tupelo, Rebecca L. Hawkins, Jackson, Mark Nolan Halbert, Tupelo, Ellie Burnham Word, Jackson, attorneys for appellee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J,

for the Court.

¶ 1. The Chancery Court of Chickasaw County consolidated the two cases that arose following the death of Margie Allen DeMoville (Margie Allen): one, case number 2007-CA-00189-COA, concerned the validity of the will of Margie Allen; the other, case number 2007-CA-00141-COA concerned the alleged misappropriation of the assets of Margie Allen and of the DeMoville partnership. The partnership included Margie Allen and her two daughters — Margaret DeMoville (Margaret) and Dixie DeMoville Johnson (Dixie). Following a trial in the chancery court, an impaneled jury found that Margie Allen’s will was invalid and that Margaret was liable to the estate and to the partnership. Thereafter, the chancellor entered a judgment finding Margie Allen’s will to be invalid and ordering Margaret to pay the estate $58,000. The chancellor also found that Margaret was liable to the partnership for $84,448. In a final judgment entered on January 16, 2007, the chancellor denied Margaret’s motion to alter or amend the judgment and ordered her to pay $25,000 in punitive damages and $204,872.72 in attorney’s fees and costs.

¶2. Margaret presently appeals from that judgment and asserts three points of error:

I. The chancellor erred in awarding punitive damages.
II. The chancellor erred in refusing to reimburse her for necessary expenses in caring for her non compos mentis mother.
III. The evidence was insufficient to support the jury’s finding that Margie Allen’s will was invalid because of her lack of testamentary capacity.

Margaret does not appeal the chancellor’s distribution of the partnership assets or the ruling that she received improper gifts from Margie Allen. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Following the death of Dixie and Margaret’s father, John Q. DeMoville, in 1984, his estate passed to his wife, Margie Allen, and his two children. Margie Allen received fifty percent of his estate, and Dixie and Margaret each received twenty-five percent. A significant portion of the estate consisted of 4,000 acres of farmland, which Margie Allen and her daughters began renting to farmers. Desiring to keep the estate intact, the parties formed a partnership and permitted Margie Allen to operate it. Dixie and Margaret executed a power of attorney granting Margie Allen the authority to manage the estate in their names. Margie Allen died on January 30, 2005, and she was survived by Margaret and Dixie. In her will, Margie Allen left everything in her considerable estate to Margaret.

¶ 4. Believing that Margaret had exerted undue influence over Margie Allen in the execution of the will, Dixie filed suit to have it declared invalid. Dixie also filed a separate suit alleging misappropriation of partnership assets by Margaret. Dixie claimed that Margaret’s influence over their mother led to disproportionate distributions between the sisters.

¶ 5. Under Margie Allen’s administration of the partnership, Dixie and Margaret received distributions of partnership income. Such distributions were made at Margie Allen’s discretion. Dixie admitted that Margie Allen’s distributions to the sisters were initially equal. However, she took issue with discrepancies in gifts that Margie Allen later gave them, feeling that Margie Allen gave a disproportionate amount to Margaret.

¶ 6. Dixie testified that she began to notice problems with her mother’s mental health sometime around 1992 or early 1993. Dixie noticed that Margie Allen would repeatedly ask questions that had already been answered and would become snappy and unreasonable. In contrast to what Dixie described as her mother’s usual steel-trap mind, Margie Allen forgot to pay her life insurance premiums in 1995, which resulted in the insurance company cancel-ling her coverage until Margaret convinced them to reinstate it.

¶ 7. As Margie Allen’s mental health deteriorated, it became increasingly unpleasant for Dixie to travel with her mother. According to Dixie, Margie Allen would become agitated and unreasonable on trips that Margie Allen would take with her daughters. Dixie described three trips in particular — Italy, Hawaii, and a cruise. On the cruise, Margie Allen did not realize where she was, and she even asked a stranger whether he knew where Shannon or Verona, Mississippi were located. Following the cruise in 1998, Margie Allen was hospitalized.

¶ 8. Earlier in April 1998, Margie Allen’s physician had referred her to a specialist in geriatric medicine. Dr. Ken Davis examined Margie Allen and noted that she suffered from short-term memory loss and that she was not aware of the date or month. Based on his examination and testing, Dr. Davis diagnosed Margie Allen with mild dementia of the Alzheimer’s type. He characterized dementia as a loss of memory or a loss of cognitive function. It was November 1998 when Margie Allen was admitted to the hospital where she became, as Dr. Davis described, very disoriented or confused. She was then admitted to the Behavioral Health Center, a psychiatric hospital in Tupelo, Mississippi. In addition to Margie Allen’s dementia, Dr. Davis said that she was experiencing delirium, which he described as confusion and paranoid ideations-a release from reality in which things that are not real seem real. Last, Dr. Davis testified that he did not think Margie Allen was cognitively able to drive safely or to live alone.

¶ 9. Upon her admission to the Behavioral Health Center, Margie Allen was examined by Dr. Morris Alexander. According to the tests administered to Margie Allen upon her admission to the Behavioral Health Center, she was cognitively impaired, with one test indicating that she was severely deficient. Dr. Alexander concluded that she had a significant decline in her ability to think.

¶ 10. Susan Shue, a psychiatric counsel- or at the Behavioral Health Center, testified that she met with Margie Allen, Margaret, and Dixie when Margie Allen was admitted. Shue said that the daughters had told her about Margie Allen’s problems paying her bills, letting her insurance lapse, and getting lost. Shue described Margie Allen as disoriented, defensive, in denial about having difficulties, and confused about where she was. When Margie Allen was discharged, Shue said that Margie Allen should no longer drive and that she needed to be kept under twenty-four-hour supervision.

¶ 11. Dr. Jan Goff, who was admitted to testify as an expert in psychiatry, treated Margie Allen during her stajr at the Behavioral Health Center. He continued to treat her from the time she was admitted in 1998 until August 2004, on an average of every three to six months. His testimony reinforced the prior testimony given by Dr. Alexander. According to Dr. Goff, at the time of Margie Allen’s admission, a patient in her condition would have begun to lose the ability to initiate and engage in matters of judgment and self-care. Dr. Goffs notes from Margie Allen’s visit in August 1999 indicate that he thought she was capable of managing usual household tasks and making judgments concerning simple everyday affairs. However, Dr. Goff felt that Margie Allen required supervision while operating any dangerous machinery such as a stove, and he found that her ability to make any complex decisions was poor. Dr. Goffs notes indicate that only a month later, Margie Allen’s dementia progressed to the point of getting lost, misidentifying family members, and failing to differentiate what was real from what was not.

¶ 12. By October 2000, Dr. Goff found that Margie Allen’s dementia had progressed to the point that she was asking about dead people as if they were alive. His opinion was that Margie Allen could be deceived very easily. Around the time that the contested will was executed, Dr. Goff believed that Margie Allen understood very little and would be very susceptible to influence.

¶ 13. Additionally, Dixie offered the testimony of other witnesses who corroborated Margie Allen’s diminished mental ability. Reverend Jennifer Johnson — the minister at Margie Allen’s church-testified that Margie Allen once drove off with her car door open, and she once had to pick up Margie Allen from the police department because she had been driving around with her door open. Dixie’s son, Robert Quinn Johnson (Quinn), recounted how Margie Allen once yelled at his girlfriend believing that she had stolen Margie Allen’s car. Quinn also recounted how Margie Allen would tell him that he looked just like her grandson Quinn, and sometimes she would confuse Margaret and Dixie.

¶ 14. Margaret downplayed the extent of Margie Allen’s mental condition and claimed that her mother had final say on everything until the day she died. Margaret denied that she ever took over the operations of the family farm from Margie Allen, but she did admit that she became more involved in managing the farm as her mother’s condition worsened. From 1998 through 2000, Margaret admitted that she received gifts from Margie Allen totaling more than $200,000. The gifts included thousands of dollars in birthday presents as well as payments to cover Margaret’s personal income and land taxes. She admitted that during that time period, she received significantly more gifts from her mother than Dixie received. However, she claimed that both she and Dixie had received more money than they were entitled to receive, and she argued that the money ultimately belonged to their mother who could distribute it as she pleased. Margaret also refused to provide Dixie with the partnership records.

¶ 15. At one meeting with Dixie, which Margaret secretly tape-recorded, Margaret told her mother that Dixie was trying to take her money. At another secretly taped meeting, Margaret told Margie Allen that Dixie was going behind Margie Allen’s back to look at Margie Allen’s records-the partnership records. Margaret also told her mother that Dixie was trying to sue her. After Dixie left one of the taped meetings, Margie Allen was recorded telling Margaret that she thought Dixie was dangerous and that she might kill someone. Margie Allen said that she thought Dixie might kill her or Margaret, and Margaret’s statements reinforced that sentiment in her mother.

¶ 16. Honorable Kenneth Burns, the attorney who prepared Margie Allen’s will, testified regarding the execution of her will. He testified that he spoke with Margie Allen at least two times before she signed the will on October 9, 2000, and it was just Margie Allen and him in his office when she instructed him as to how to draft her will. After initially meeting with her, he recommended that she go see a doctor because he did not think that she understood what she was doing. Dr. Don Smith, a general practitioner in Okolona, Mississippi, examined Margie Allen and wrote a letter to Burns indicating that Margie Allen was “suffering from short-term memory loss but is lucid at times.” The letter contained no other mention of Margie Allen’s mental condition or her ability to execute a will. Thereafter, finding Margie Allen to be lucid, Burns prepared a will as instructed by Margie Allen. It was Burns’s opinion that Margie Allen had a problem with Dixie’s husband, and that was the reason she left everything to Margaret.

¶ 17. Burns admitted that Margaret was always the one who brought her mother to his office regarding the will. He also said that Margaret either called him or visited his office at least five times in the month prior to the will’s execution. It was Burns’s recollection that Margaret, not Margie Allen, was the first person to contact him about drafting the will. When Dixie’s attorney questioned Burns on cross-examination as to whether he was aware that Margie Allen had been diagnosed with Alzheimer’s and that she had been seeing a psychiatrist for the problem, he stated that he was unaware of her mental condition. He said he would not have drafted the will if he had known about her mental condition. Burns was also unaware of a letter that Dixie’s attorney had sent to Margaret requesting to see estate records. Again, Burns said he would not have drafted the will if he would have had knowledge about a dispute between the sisters.

¶ 18. Burns’s secretary, Abby May, testified that as far as she knew, Margie Allen was lucid. However, she said that Margaret was always with her mother for the two years preceding the will’s execution, and she said that Margaret would be the one to call or bring her mother to the office. May was also unaware of Margie Allen’s mental condition and was unaware of the exact number of times that Margaret or Margie Allen called or visited the office. Furthermore, she did not remember some details about the execution of the will.

¶ 19. Dr. Smith, the physician to whom Margaret took Margie Allen after Burns expressed concern about her competency, testified that he was never asked to perform a competency exam on Margie Allen. He was unaware that Margie Allen had been seeing a psychiatrist and that she had been hospitalized for dementia. Dr. Smith’s records indicated that he recognized Margie Allen’s short-term memory loss and her possible Alzheimer’s type dementia, but he did not treat her for those problems. He only treated her for general checkups and small medical problems that would arise.

¶20. Following the execution of the will, Margaret moved Margie Allen from Okolona to Margaret’s home in Tupelo. Thereafter, Dixie had no contact with her mother until she obtained a court order requiring Margaret to allow her to visit Margie Allen. It was Margaret’s testimony that Margie Allen never saw Dixie during this period of time because Margie Allen did not want to see her.

¶ 21. Following Margaret’s adverse testimony, Dixie requested that the chancellor consider whether punitive damages were appropriate, and then she rested her case.

¶ 22. Besides Burns and his secretary, Margaret called a number of other witnesses who testified as to Margie Allen’s competency and her relationship with her daughters. Beth McAuley, who also lived in Tupelo, testified that she was involved in a number of organizations with Margaret and Margie Allen. McAuley said that the two of them were very close and that they did everything together.

¶ 23. Nancy Clark, who lived in Okolo-na and knew the parties from church, described the relationship between Margaret and Margie Allen as “beautiful.” She said that she did not notice much difference between Margie Allen’s mind after she moved in with Margaret in Tupelo. She thought of Margie Allen as a very strong-willed woman.

¶ 24. Steve Holland, of Lee County, testified that he had known the DeMovilles for decades. He said Margie Allen was a strong-willed woman and that she was completely lucid the last time he saw her, which was about six months prior to her death. In the fifteen or twenty years before Margie Allen’s death, Holland said that he usually saw Margaret with her. He was not as well acquainted with Dixie because she lived farther away.

¶ 25. Pam Armstrong, Bessie Lewis, Janice Walker, Nancy Whitten, and Nick Chandler testified similarly about Margie Allen and her relationship with Margaret. Lewis additionally told the court that Margie Allen had once told her that Dixie had threatened her. Sidney Whitlock, who had been on the board of directors of the Bank of Okolona, testified that he had advised Margie Allen that when she opened a certificate of deposit, she should open the C.D. in two parties’ names so as to avoid potential legal problems. It turned out that Margie Allen ultimately placed her name and Margaret’s name on the C.D. John Herrod, Jr., president and chief operating officer of the Bank of Okolona, testified that the bank had no record for Margie Allen’s account from 1984 through 1992, and from 1993 to 1997, the records were not indexed so as to be located.

¶ 26. The chancellor noted that the only part of the jury’s verdict that he was required to follow was the ruling concerning the validity of Margie Allen’s will. The jury returned a verdict finding: (1) Margie Allen’s will was invalid; (2) Margaret misappropriated $84,448 in partnership funds; and (3) Margaret accepted improper gifts from Margie Allen in the amount of $58,000. In the final judgment, the chancellor found Margie Allen’s will to be invalid. The judgment also adopted the jury’s findings and ordered Margaret to pay the estate $58,000 and to pay the partnership $84,448. Lastly, the chancellor ordered Margaret to pay $25,000 in punitive damages and to pay Dixie’s attorney’s fees of $204,872.72.

DISCUSSION

I. Whether the evidence was sufficient to support a finding that Margie Allen’s will was invalid due to her lack of testamentary capacity.

¶ 27. First, we address Margaret’s claim regarding the validity of her mother’s will. Margaret argues that there was no evidence that Margie Allen lacked testamentary capacity to execute a will; therefore, the issue should not have been presented to the jury. Margaret argues that it was in error to deny her motions for a directed verdict and for a new trial.

A. Testamentary Capacity

¶ 28. This Court will reverse the denial of a motion for a directed verdict “only where the evidence of an element of the claim is so lacking that reasonable jurors could find only for the non-movant.” In re Estate of Pigg; McClendon v. McClendon, 877 So.2d 406, 409(¶ 10) (Miss.Ct.App.2003) (citing Harrison v. McMillan, 828 So.2d 756, 764(¶ 24) (Miss.2002)). Furthermore, the grant or denial of a motion for a new trial is within the chancellor’s sound discretion. In re Will of Smith; Smith v. Averill, 722 So.2d 606, 613(¶ 28) (Miss.1998) (quoting Andrew Jackson Life Ins. Co. v. Williams, 566 So.2d 1172, 1177 (Miss.1990)).

¶ 29. In determining whether Margie Allen possessed testamentary capacity, the jury considered three factors: (1) whether she had the ability “to understand and appreciate the effects of her act,” (2) whether she had the ability “to understand the natural objects or persons to receive her bounty and their relation to her,” and (3) whether she was capable of determining “what disposition she desired to make of her property.” Id., 722 So.2d at 610(¶ 12) (citing In re Will of Wasson, 562 So.2d 74, 77 (Miss.1990)). The relevant time period for considering these factors was the time the will was made. Id.

¶ 30. Besides Drs. Davis and Goff, Margaret’s argument on appeal outright dismisses all of Dixie’s witnesses’ testimonies as irrelevant because they did not observe Margie Allen at a time closer in proximity to the drafting of the will. Margaret places great emphasis on the testimonies of the two subscribing witnesses, Burns and May. However, Burns testified that he initially had concerns about Margie Allen’s competency, and he refused to draft a will for her until she was examined by a doctor. He eventually did draft Margie Allen’s will, but only after she and Margaret returned with the letter from Dr. Smith. Burns went on to testify that he was unaware of Margie Allen’s mental condition or that she had been seeing a psychiatrist. He said he would not have drafted the will for Margie Allen if he had known about her mental condition.

¶ 31. When questioned about his examination of Margie Allen and about the letter to Burns, Dr. Smith testified that he did not examine Margie Allen for competency. He merely performed her general checkups. He said that he was unaware of Margie Allen’s mental condition or that she had been hospitalized for dementia.

¶ 32. We find that Dixie presented sufficient evidence on which a jury could determine that Margie Allen lacked testamentary capacity to create a will; therefore, the issue was properly presented to the jury. We also find that the chancellor did not abuse his discretion in refusing to grant Margaret’s motion for a new trial.

B. Undue Influence

¶ 33. Regarding undue influence: “A presumption of undue influence arises in a will contest when a beneficiary occupies a confidential relationship with the testator and there is active participation by the beneficiary in either procuring the will or in preparing the will.” Averill, 722 So.2d at 611—12(¶ 18) (citing In re Will of Adams, 529 So.2d 611, 615 (Miss.1988)).

¶34. In the present case, there was ample testimony indicating that Margaret was in a confidential relationship with Margie Allen. Margaret was taking care of Margie Allen and was managing her affairs under a power of attorney that Margie Allen had executed in favor of Margaret. Margaret also took over more of the management of the partnership as Margie Allen’s mental condition worsened. Under these circumstances, Margaret drove Margie Allen to see Burns to draft a new will, and Margaret took her to the doctor to prove to Burns that Margie Allen was competent. There was also testimony that Margaret called Burns concerning the creation of the will. In the will that Margaret participated in preparing, Margie Allen left all of her assets to Margaret.

¶ 35. We find these facts to be sufficient to survive a directed verdict on the issue of undue influence. We also find that the chancellor was within his discretion in infusing to grant Margaret’s motion for a new trial on this issue. Therefore, this issue is without merit.

II. Whether the chancellor erred in awarding punitive damages.

¶ 36. Margaret next argues that the chancellor erred in awarding punitive damages to Dixie. She makes two arguments concerning the allegedly improper punitive damages. First, Margaret argues that Dixie failed to prove that Margaret committed fraud or acted with actual malice. Second, Margaret claims that the chancellor erred by failing to hold an evidentiary hearing on the issue of punitive damages.

¶ 37. The question of whether or not to award punitive damages is an issue for the fact-finder based upon the circumstances of the case. Aqua-Culture Techs. v. Holly, 677 So.2d 171, 184 (Miss.1996) (citing Harvey-Latham Real Estate v. Underwriters at Lloyd’s, London, 574 So.2d 13, 16 (Miss.1990)). “The awarding of punitive damages, when allowable, is discretionary with the jury or with the judge trying cases without a jury.” Id. (quoting Ellis v. S. Pellegrini, Inc., 163 Miss. 385, 391, 141 So. 273, 274 (1932)). The decision to award punitive damages is within the discretion of the chancellor, and upon review, this Court will not overturn that decision absent an abuse of discretion. Id. at 185 (citing Fought v. Morris, 543 So.2d 167, 173 (Miss.1989)).

¶ 38. Margaret relies on Mississippi Code Annotated section ll-l-65(l)(a) (Supp.2008) to support her argument that Dixie failed to make a case for punitive damages. Section ll-l-65(l)(a) provides the following: “Punitive damages may not be awarded if the claimant does not prove by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.” Margaret dismisses the possibility that Dixie proved actual fraud or gross negligence and instead argues that Dixie failed to prove actual malice.

¶ 39. Dixie does not contest that she failed to show actual fraud or gross negligence. However, she responds that the chancellor properly found Margaret’s breach of her fiduciary duty to be so “shocking and indefensible” as to warrant punitive damages.

¶ 40. This Court addressed a somewhat similar issue regarding punitive damages in Smith v. Orman, 822 So.2d 975, 978(¶ 9) (Miss.Ct.App.2002). In Oman, the appellants took issue with the chancellor’s award of damages based on their alleged misappropriation of estate assets and with the chancellor’s failure to conduct an evi-dentiary hearing regarding punitive damages. Id. Based in part on the chancellor’s findings that the appellants in Oman had concealed estate assets, this Court found no error with the chancellor’s award of $20,000 in punitive damages. Id. at 980 (¶¶ 20-22).

¶ 41. There was no concealment of assets in the present case, but the chancellor found that Margaret intentionally misappropriated assets from her mother’s estate. In an order filed on December 29, 2006, the chancellor found the following regarding punitive damages:

The Court finds that during the seven (7) day trial the evidence firmly established that Margaret misappropriated partnership funds and received improper gifts from her mother. The evidence firmly established that the misappropriation of partnership funds and [Margie Allen’s] personal assets were willfully and wrongfully taken and in reckless disregard for the rights of Dixie.
Margaret’s defense that the funds received represented gifts from her mother was contradicted by circumstances and was improbable and incomplete. The fiduciary relationship that Margaret shared with her mother and the partnership was clearly established from 1998 on up to the death of [Margie Allen] given the take-over by Margaret of her mother’s personal business as well as the partnership business. The total dependence of [Margie Allen] on Margaret because of [Margie Allen’s] declining health further reinforces the fiduciary relationship.
Margaret owed a special duty to Dixie and her mother to properly manage the partnership assets. She was required to exercise good faith, and she failed to do so.
Margaret allowed [Margie Allen] to waste partnership assets at a time when she knew her mother was suffering from dementia, which included impaired judgment and memory.
The acts of Margaret in receiving improper gifts and misappropriating partnership funds was no accident. It was consciously and deliberately done on her part, and she profited from, these acts.

Similarly, the jury returned a verdict finding that Margaret had misappropriated her mother’s assets. The record before us supports the findings of the jury and the chancellor. Ultimately, the decision to award punitive damages was within the discretion of the chancellor, as fact-finder, and we see no error with that decision.

¶ 42. In support of her claim that the chancellor committed a procedural error in failing to hold an evidentiary hearing on the issue of punitive damages, Margaret cites to Mississippi Code Annotated section 11—1—65(l)(c) (Supp.2008). In any case in which punitive damages are sought, section 11—1—65(l)(c) requires a trial court, following an award of compensatory damages, to “promptly commence an evidentia-ry hearing to determine whether punitive damages may be considered by the same trier of fact.” If the court determines that the issue of punitive damages may be considered, the trier of fact “shall determine whether to award punitive damages and in what amount.” Miss.Code Ann. § 11—1— 65(l)(d) (Supp.2008).

¶ 43. In her reply brief, Margaret somewhat abandons one of her arguments and admits that the chancellor did actually hold an evidentiary hearing on the issue of punitive damages. However, she takes issue with the fact that there was no evidence in the record from the hearing because no court reporter was present.

¶44. In Oman, this Court found that the need for an evidentiary hearing on punitive damages is lessened when a case is tried in chancery court because the chancellor serves as the trier of fact. Orman, 822 So.2d at 980(¶ 18). After reviewing the record in Oman, this Court found no error with the chancellor’s decision not to hold a separate hearing on punitive damages. Id. As was the case in Orman, the chancellor in the present case was the trier of fact for all of the issues besides the will contest.

¶ 45. The role of the jury in a will contest is not merely advisory; the jury occupies the same role “as that of a jury in a civil trial in a court of law.” Fowler v. Fisher, 353 So.2d 497, 501 (Miss.1977). Mississippi Code Annotated section 91-7-29 (Rev.2004) provides that witnesses in a will contest “shall be examined orally before the jury....” The chancellor recognized that he was bound by the jury’s determination of whether the will was properly executed. However, the chancellor noted that for the other issues, the jury’s findings were merely advisory. During a discussion on jury instructions, the chancellor stated, “You understand that this is a jury trial, but in a jury trial such as this then the verdict of the jury is advisory to the court, and I can accept it or reject it. It’s not insofar as the will is concerned.”

¶ 46. Ultimately, barring a statutory exception, the right to a jury in chancery court is within the chancellor’s discretion, and if a jury is impaneled, its findings are merely advisory. Era Franchise Sys., Inc. v. Mathis, 931 So.2d 1278, 1288(¶ 30) (Miss.2006) (citing Union Nat’l Life Ins. Co. v. Crosby, 870 So.2d 1175, 1181-82(¶ 21) (Miss.2004)). The chancellor had the authority to award punitive damages, and the chancellor, as the fact-finder, heard all the relevant testimony. We find no error with the award — procedural or substantive. Therefore, this issue is without merit.

III. Whether the chancellor erred in refusing to award Margaret compensation for expenses in caring for her mother.

¶ 47. In Margaret’s final allegation of error, she takes issue with the chancellor’s refusal to reimburse her for the expenses she claimed to have incurred in caring for Margie Allen.

¶ 48. At the close of the conservator-ship, Margaret did not make any claim for reimbursement of expenses. She was notified of the pending closure of the conserva-torship and was allowed to present any objections regarding such. She was also present and represented by counsel at the final hearing to close the conservatorship. Nevertheless, Margaret made no claims until after the jury returned a verdict adverse to her. At that time, she attempted to probate claims against the estate of Margie Allen in the amounts of $56,420 and $249,792. She claimed that these amounts were for services rendered and out-of-pocket expenses. Margaret later filed additional claims for probate against the Margie Allen’s estate. Margaret claimed $83,721.28 for out-of-pocket expenses, $225,792 for care of Margie Allen, and $234,400 for room and board.

¶ 49. Finding that Margaret made no request for compensation prior to or at the time of the closure of the conservatorship, the chancellor refused to grant any amount to Margaret for the care she provided for Margie Allen prior to the closure of the conservatorship on December 20, 2005. The chancellor supported the ruling by the finding that Margaret, as she testified throughout the trial, provided care for her mother solely out of love and did not expect compensation. The chancellor also noted that Margaret provided care for her mother in the interest of her her well-being. These findings are supported by the record. The chancellor later entered a judgment awarding Margaret $14,684.41 for funeral expenses, which were incurred following the closure of the conservator-ship.

¶ 50. The chancellor based his ruling on In re Estate of Thomas; Saunders v. Thomas, 853 So.2d 134, 136 (¶¶ 10-11) (Miss.Ct.App.2003). In Thomas, this Court noted that under Mississippi Code Annotated section 93-13-259 (Rev.1994), the same laws applicable to the guardianship of a minor were also applicable to a conservatorship. Id. at (¶ 11). In applying Mississippi Code Annotated section 93-13-77 (Rev.1994) in Thomas, this Court concluded that a conservator must file a request for compensation for services at the time of the final accounting of the conservatorship. Id. Any appropriate compensation must then be included in the decree closing the conservatorship. Id. In Thomas, the conservator who sought compensation filed her claim months after the conservatorship was closed; therefore, this Court found that her claim came too late and that she could not recover the amount that she claimed to have expended as conservator. Id.

¶ 51. Margaret attempts to argue that notwithstanding the fact that she failed to file a claim at the closure of the conservatorship, she should be reimbursed for expenses because Margie Allen was non compos mentis and could not make a contract. Margaret relies on Talbert v. Ellzey, 203 Miss. 612, 620, 35 So.2d 628, 631-32 (1948) to support her position. In Talbert, the supreme court stated that “an insane person or estate is legally obliged to pay for necessities furnished such person in good faith under circumstances justifying their being furnished.” Id. at 617-18, 35 So.2d at 630.

¶ 52. We must first note the irony contained in this argument as it contradicts Margaret’s position at trial and on appeal — that her mother was a competent person who was capable of making a will. Regardless of Margie Allen’s mental condition, the proper method for a conservator to seek reimbursement to recover the expenses of caring for her charge is provided for by statute. See Thomas, 853 So.2d at 136 (¶¶ 10-11). Margaret was fully aware of the pending closure of the conservator-ship, and she even attended the final hearing. Nevertheless, she waited until after the jury returned a verdict that was adverse to her to seek any compensation. We see no reason why the chancellor would not have awarded Margaret proper expenses if she had properly complied with the requirements. The chancellor readily reimbursed her for Margie Allen’s funeral expenses that were incurred after the closure of the conservatorship.

¶ 53. Margaret has not denied that she failed to seek reimbursement prior to the closure of the conservatorship; neither has she provided a reason why she failed to file such a claim for reimbursement. Accordingly, we find no error with the chancellor’s determination that her claims for expenses were untimely and, therefore, barred. This issue is without merit.

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

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

      . The will contest arose in Chickasaw County, and the case alleging misappropriation of assets arose in Lee County. In the interest of judicial economy and to avoid a multiplicity of suits, the parties jointly stipulated that both matters should be tried in the Chancery Court of Chickasaw County. The Chancery Court of Lee County entered an order transferring the case, which was then consolidated with the pending will dispute.

      . At the lime of trial, Kenneth Burns was a chancery court judge, bul at the time he prepared Margie Allen's will, he was nol a judge.


author: KING, C.J.,

text:
    Jim TERRY a/k/a James Clayton Terry, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-02260-COA.
    Court of Appeals of Mississippi.
    June 16, 2009.
    Rehearing Denied Oct. 27, 2009.
    Certiorari Denied Jan. 28, 2010.

      Jim Waide, Tupelo, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   KING, C.J.,

for the Court.

¶ 1. James “Jim” Clayton Teny was eonvicted and sentenced in the Circuit Court of Lowndes County of embezzlement and fraud while holding a public office. Aggrieved, Terry appeals, raising one issue, which we quote verbatim:

Whether an indictment alleging embezzlement or fraud occurring over a two-year period is sufficient when it does not give specific dates of embezzlement or fraud, or state what facts constitute the embezzlement or fraud.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2004, Terry was elected to serve as a member of the Lowndes County, Mississippi Board of Supervisors, serving as the supervisor for District Four. As a member of the Board of Supervisors, Terry was issued a county vehicle and a Fuel-man card, which was to be used to purchase gasoline for the county’s vehicle. The county’s vehicle and the Fuelman card were to be utilized for business purposes only.

¶ 3. Complaints were received that Terry was making inappropriate purchases of gasoline with his Fuelman card and was using the county’s vehicle to take personal trips to casinos. Local authorities investigated the allegations and questioned Terry regarding his use of the county’s vehicle, his use of the Fuelman card, and his trips to casinos. As a result of the investigation, Terry was indicted on August 21, 2006, for violating Mississippi Code Annotated section 97-11-31 (Rev.2006):

... between January 1, 2004, through the 31st day of December 2005, in the County aforesaid, [Terry] did unlawfully, wilfully, and feloniously commit a fraud or embezzlement while holding a public office, to wit: Supervisor of District 4 of Lowndes County, Mississippi, by fraudulently obtaining gasoline and the use of a eounty[-]owned vehicle for his personal activities, having a total aggregate value of over $500.00, by charging said gasoline to his county Fuelman card and using his county vehicle for personal purposes....

¶ 4. Terry filed a motion to dismiss the indictment, raising three issues: (1) whether the indictment was vague and indefinite, failing to fully advise him of the nature of the charge against him; (2) whether the indictment charged Terry with two separate offenses in the alternative, making it fatally defective; and (3) whether the indictment failed to state an offense. In his brief in support of the motion and during the hearing on the motion, Terry’s argument focused on whether the indictment impermissibly charged him with “fraud” or “embezzlement,” in the alternative. The trial court found that the Legislature used the terms “fraud” and “embezzlement” interchangeably; the indictment contained the required elements; and the indictment fully apprised Terry of the charge against him. Thus, the trial court denied Terry’s motion to dismiss the indictment, and the trial commenced.

¶ 5. On November 29, 2007, a Lowndes County jury found Terry guilty. The trial court sentenced Terry to thirteen months in the custody of the Mississippi Department of Corrections, with five years of post-release supervision. The trial court also ordered Terry to pay restitution to Lowndes County in the amount of $2,227.39 and to pay $4,000 to the Mississippi Department of Audit. Terry was also removed from the office of Supervisor of District Four. Terry filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the trial court denied.

¶ 6. Aggrieved, Terry timely filed his notice of appeal.

ANALYSIS

¶ 7. Whether an indictment is fatally defective is a question of law, which this Court reviews under a de novo standard of review. Williams v. State, 772 So.2d 406, 408(8) (Miss.Ct.App.2000).

I. Whether Terry’s issues are procedurally barred from appellate review.

¶ 8. The State argues that Terry’s issues are proeedurally barred because he failed to specifically raise these issues before the trial court in his motion to dismiss the indictment. The law is clear that issues raised for the first time on appeal are proeedurally barred from review. Jackson v. State, 856 So.2d 412, 415(12) (Miss.Ct.App.2003).

¶ 9. As previously stated, Terry raised three issues in his motion to dismiss the indictment: (1) whether the indictment was vague and indefinite, failing to fully advise him of the nature of the charge against him; (2) whether the indictment charged him with two separate offenses in the alternative; and (3) whether the indictment failed to state an offense. Although the majority of Terry’s arguments before the trial court focused on whether the indictment impermissibly charged him in the alternative, there is evidence in the record that raises a reasonable inference that the issues before this Court were properly raised before the trial court. Thus, we find that Terry’s appeal is not procedurally barred from review.

II. Whether the indictment provided sufficient notice of the charge.

¶ 10. Terry argues that the indictment was insufficient to alert him of the nature of the charges against him because: (1) the indictment failed to note the specific dates that Terry allegedly used the county vehicle for personal use, and (2) the indictment failed to identify the type of personal use alleged. Terry also contends that he did not receive complete information regarding the charge against him until the day of the trial. Specifically, Terry argues that the State’s Exhibit 9 contained additional information that he did not receive during discovery. Terry maintains that the indictment was insufficient, thus, prejudicing his defense.

¶ 11. An indictment must contain the essential elements of the crime charged and sufficient facts, which provide the defendant with sufficient notice of the charges against him. Gilmer v. State, 955 So.2d 829, 836(24) (Miss.2007) (citing Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)). Specifically, Rule 7.06 of the Uniform Rules of Circuit and County Court requires that an indictment contain the following:

... a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.... An indictment shall also include the following:
1. The name of the accused;
2. The date on which the indictment was filed in court;
3. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;
4. The county and judicial district in which the indictment is brought;
5. The date and, if applicable, the time at which the offense was alleged to have been committed. Failure to state the correct date shall not render the indictment insufficient;
6. The signature of the foreman of the grand jury issuing it; and
7. The words “against the peace and dignity of the state.”

A. Specific Dates of the Offenses

¶ 12. The indictment charged that Terry committed embezzlement or fraud between January 1, 2004, through December 31, 2005. Terry maintains that the range of dates was insufficient to put him on notice of the charges against him, arguing that the indictment should have listed each specific date that he allegedly committed the offense.

¶ 13. This issue has mainly been addressed in the context of sex offender cases. See, e.g., Price v. State, 898 So.2d 641, 654-55(32) (Miss.2005). However, the same principle can be applied here.

¶ 14. In Pnce, the indictment did not contain the specific dates upon which the crimes were committed. Id. at 654(32). Instead, the indictment provided a time frame in which the offenses occurred. Id. at 654-55(32). The supreme court found that Rule 7.06 only required the indictment to provide “the specific date if at all possible_” Id. at 655(32) (emphasis added) (citing Morris v. State, 595 So.2d 840, 842 (Miss.1991)). In addition, the supreme court found that the “failure to provide the correct date does not render the indictment defective.” Id.; see also URCCC 7.06(5). Accordingly, the supreme court held that the range of dates provided in the indictment sufficiently put the defendant on notice of the charges against him. Id.

¶ 15. In this case, Terry’s indictment did not list specific dates on which the offenses occurred. However, the indictment did provide that the offenses were committed between January 1, 2004, through December 31, 2005. In addition, the State provided Terry with its Exhibit 9 — a chart that matched the dates that Terry used his Fuelman card to the dates that Terry visited casinos. Terry argues that he did not receive this chart until the day of the trial. However, the record is clear that the State used Terry’s Fuelman records and his casino redemption records in preparing Exhibit 9. Terry does not claim that he did not have access to his Fuelman records or his casino redemption records. Thus, Terry could have easily obtained this information from other documents that were provided to him during discovery. Like the reasoning in Price, we find that the range of dates provided in the indictment sufficiently put Terry on notice of the charges against him.

¶ 16. Additionally, Terry’s embezzlement was a continuous offense. Continuous offenses may “be laid as on one day and proved by acts either on one day or many.” Davis v. State, 108 Miss. 710, 722-23, 67 So. 178, 180 (Miss 1915). Thus, “[e]mbezzlement, when committed by a series of connected transactions from day to day, may be alleged as on a single day, and the real facts be shown in evidence.” Id.; see also Taylor v. State, 754 So.2d 598, 604(13) (Miss.Ct.App.2000).

¶ 17. Based on the foregoing, we find that the range of dates provided in the indictment sufficiently put Terry on notice of the charges against him because: (1) the failure to provide a specific date does not render the indictment defective, and (2) since Terry’s alleged crime was a continuous offense, it could be proven by acts on either one day or numerous days. We do not find any prejudice to Terry’s defense. This argument is without merit.

B. Type of Personal Use

¶ 18. Terry argues that the indictment failed to put him on notice of the charges against him because it did not specify the type of personal use alleged. Terry was indicted under Mississippi Code Annotated section 97-11-31, which provides that:

If any officer, or other person employed in any public office, shall commit any fraud or embezzlement therein, he shall be committed to the department of corrections for not more than ten (10) years, or be fined not more than five thousand dollars ($5,000.00), or both.

Thus, the essential elements of this crime are that: (1) a person holding a public office (2) committed an embezzlement or fraud in his or her public employment. See id. The statute does not mention anything about personal use. Terry’s indictment clearly charged that he committed an embezzlement or fraud while holding a public office by fraudulently obtaining gasoline and by the use of a county-owned vehicle for his personal activities. Thus, the indictment sufficiently stated the essential elements of the crime and the acts which constituted the embezzlement or fraud.

¶ 19. Because personal use is not an essential element of the crime, we find that the State was not required to specifically list what activity constituted the personal use. However, the record clearly shows that through discovery, Terry was on notice that his trips to the casinos constituted the personal use alleged in the indictment. This argument is without merit.

CONCLUSION

¶ 20. The indictment was not defective because it failed to include the specific dates upon which Terry committed the offense. We find that the range of dates provided in the indictment was sufficient to put Terry on notice of the charges against him. Because personal use is not an essential element of section 97-11-31, we cannot find that the indictment was defective because it failed to specifically state the activity of personal use that Terry was engaged in when he committed the offense. Terry failed to prove any prejudice to his defense. Thus, the judgment of the trial court is affirmed.

¶ 21. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF EMBEZZLEMENT AND FRAUD IN PUBLIC OFFICE AND SENTENCE OF THIRTEEN MONTHS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS OF POST-RELEASE SUPERVISION; TO PAY RESTITUTION TO LOWNDES COUNTY IN THE AMOUNT OF $2,227.29; TO PAY $4,000 TO THE MISSISSIPPI DEPARTMENT OF AUDIT; AND REMOVAL FROM THE OFFICE OF SUPERVISOR OF DISTRICT FOUR OF LOWNDES COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.