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

text:
    Demario WALKER a/k/a Demario D. Walker a/k/a Demario Dontez Walker, Appellant v. Bryan A. BAILEY, Jimmy Randolph Spears, James Rutland, Albert Bounds, Mark Thompson, Rankin County Board of Supervisors, Rankin County Jail, Amanda Thompson, Eddie Thompson, George Schwindling and Quality Healthcare, Appellees
    NO. 2017-CP-00450-COA
    Court of Appeals of Mississippi.
    August 14, 2018
    ATTORNEY FOR APPELLANT: DEMARIO WALKER (PRO SE)
    ATTORNEYS FOR APPELLEES: ANTHONY SCHMIDT, Jackson, MARK THOMPSON (PRO SE), GEORGE SCHWINDLING (PRO SE)
    BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Demario Walker appeals the circuit court's sua sponte dismissal of his civil complaint pursuant to Mississippi Code Annotated section 47-5-76(1) (Rev. 2015). We find the circuit court's dismissal was premature, but nonetheless proper. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 19, 2016, Walker, while an inmate in the Rankin County jail, filed a pro se civil complaint in the Circuit Court of Rankin County against Bryan Bailey, the Rankin County sheriff; Jim Spears, James Rutland, and Albert Bounds, Rankin County jail administrators and shift lieutenants; the Rankin County Board of Supervisors; the Rankin County jail; and Mark Thompson, a fellow Rankin County inmate. Walker alleged that while in the custody of the Rankin County jail, he was sexually assaulted by Thompson. He claims the various Rankin County officials failed to maintain a safe and secure environment, failed to protect him, failed to provide adequate supervision, and failed to implement and maintain adequate health care.

¶ 3. Summonses were issued and subsequently served upon the defendants. After no answers were filed, on September 1, 2016, Walker requested the circuit clerk to enter a default under Mississippi Rule of Civil Procedure 55(a).

¶ 4. On September 20, 2016, Walker filed an amended complaint naming additional Rankin County jail officials, Quality Healthcare, and a second inmate as defendants. Walker again claimed a failure to supervise and maintain a safe and secure environment, and a failure to provide adequate health care. As to the second inmate, Walker claimed the inmate sexually harassed him, attempted to sexually assault him, stalked him, and attempted to expose him to Hepatitis C. Summonses were subsequently issued to the newly named defendants.

¶ 5. On September 27, 2016, the circuit clerk entered a default pursuant to Rule 55(a) against Bailey, Spears, Rutland, and Bounds. Walker then moved for a default judgment. The circuit court set the motion for a default judgment for hearing. However, no hearing occurred. Instead, on March 23, 2017, the circuit court entered an order of dismissal with prejudice. The circuit court found Walker had previously filed numerous civil actions, and had had three or more dismissed as frivolous or for failing to state a claim upon which relief may be granted. The circuit court further found Walker had been moved to a different facility and was not under imminent danger of serious physical injury. As a result, the circuit court dismissed Walker's complaint with prejudice pursuant to section 47-5-76(1).

¶ 6. Walker timely appealed and was granted leave to appeal in forma pauperis. On appeal, Walker claims the circuit court erroneously dismissed his civil complaint.

ANALYSIS

¶ 7. We first note that the appellees failed to file a brief as outlined in Mississippi Rule of Appellate Procedure 31(b). In such instances, this Court has two options:

First, we may take the appellee's failure to file a brief as a confession of error and reverse. This option is favored when the record is complicated or of large volume and the case has been thoroughly briefed by the appellant with apt and applicable citation of authority so that the brief makes out an apparent case of error. However, if the record can be conveniently examined and such examination reveals a sound and unmistakable basis or ground upon which the judgment may be safely affirmed, we may disregard the appellee's error and affirm.

Poole v. Walton , 214 So.3d 1064, 1066 (¶ 5) (Miss. Ct. App. 2016). Here, examination of the record shows the judgment can be affirmed.

¶ 8. Pursuant to section 47-5-76(1),

[a]n inmate shall not bring a civil action or appeal a judgment in a civil action or proceeding in forma pauperis if the prisoner has, on three (3) or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court that was dismissed on the grounds that it was frivolous, malicious, or failed to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

The record shows that Walker, an inmate, has, on three or more prior occasions, while incarcerated or detained in a facility, brought an action in a court that was dismissed on the grounds that it was frivolous or malicious, or failed to state a claim upon which relief may be granted. Indeed, Walker has a long history of filing frivolous lawsuits.

¶ 9. Nine years ago, the Fifth Circuit noted that "Walker ha[d] already been informed that he ha[d] accumulated three strikes under 28 U.S.C. § 1915(g)," the federal "three strikes" rule, which is nearly identical to Mississippi Code Annotated section 47-5-76(1). Walker v. Mississippi Parole Bd. , 333 F. App'x 843, 845 (5th Cir. 2009) (citing Walker v. Norwood , No. 3:08-cv-275-TSL-JCS, 2009 WL 387337, at *1 (S.D. Miss. Feb.13, 2009) ). As far back as 2010, this Court considered sanctioning Walker "for his repetitive, frivolous findings" but declined to do so "at [that] time." Walker v. State , 35 So.3d 555, 560 (¶ 21) (Miss. Ct. App. 2010). In a subsequent case, we noted that Walker had "filed over forty non-habeas lawsuits for perceived mistreatment while incarcerated." Walker v. Allen , 119 So.3d 1111, 1112 (¶ 1) (Miss. Ct. App. 2013). One of the cases that the circuit judge cited, Walker v. United States , No. 08-CV-3025(ENV), 2008 WL 3851589 (E.D.N.Y. Aug. 18, 2008), was dismissed as frivolous because Walker falsely alleged that he had traveled to New York in 2007, despite the fact that he had been incarcerated in Mississippi since 2003. No doubt, the circuit judge could have found many other frivolous suits filed by Walker on Westlaw or Public Access to Court Electronic Records (PACER), the federal courts' online case information system. A search of PACER shows about 100 federal cases or appeals that Walker has filed, and this Court's online docket lists fifty-seven state appeals, mandamus petitions, et cetera, that he has filed. In short, it is not surprising that Walker's history of filing frivolous lawsuits eventually came to the attention of the circuit judge.

¶ 10. There is nothing wrong with a circuit court acting sua sponte to enforce the three-strikes rule. See, e.g. , Harris v. City of New York , 607 F.3d 18, 23 (2d Cir. 2010) (applying the federal three-strikes rule). A "compelling purpose" of the three strikes rule is to give courts "greater power to protect their dockets from meritless lawsuits." Id. The court need not wait for a defendant to raise the issue. It was entirely proper for the circuit court in this case to do so on its own motion.

¶ 11. Additionally, the record shows no evidence that Walker was "under imminent danger of serious physical injury." Miss. Code Ann. § 47-5-76(1). "[F]requent filers" like Walker "sometimes allege that they are in imminent danger so they can avoid paying a filing fee." Ciarpaglini v. Saini , 352 F.3d 328, 330 (7th Cir. 2003). However, "a past injury that has not recurred" does not satisfy the "imminent danger" exception to the three-strikes rule. Id. "[A] prisoner must allege a present imminent danger, as opposed to a past danger, to proceed under [the exception]." Brown v. Johnson , 387 F.3d 1344, 1349 (11th Cir. 2004). "[T]he requisite imminent danger of serious physical injury must exist at the time the complaint ... is filed , not when the alleged wrongdoing occurred." Martin v. Shelton , 319 F.3d 1048, 1050 (8th Cir. 2003) (emphasis added). Walker failed to allege any such present imminent danger. His complaint alleged an assault by another inmate and inactions by officials at the Rankin County Jail. The complaint clearly stated that "[a]ll events occurred in or at the [R]ankin County Jail." However, the certificates of service for the original complaint and amended complaint and the summonses filled out by Walker show that he was at the Central Mississippi Correctional Facility (CMCF) in Pearl when he filed the original complaint and the amended complaint. Walker did not allege that he was in any imminent danger at CMCF. Therefore, the imminent-danger exception to the three-strikes rule does not apply.

¶ 12. Even though Walker has had three or more cases dismissed as frivolous or malicious, or for failing to state a claim, section 47-5-76(1) does not preclude him from bringing a civil action; it simply precludes him from bringing a civil action in forma pauperis. See id.

¶ 13. There is no indication in the record that Walker's pauper status was addressed or determined by the circuit court when this case was filed. Although Walker requested and was granted leave to appeal in forma pauperis, there is no such request or order in the record regarding his ability to proceed in the trial court in forma pauperis. In fact, Walker did not include a pauper's affidavit with his complaint, as required by Mississippi Code Annotated section 11-53-17 (Rev. 2012), and he asserts that he "never requested to proceed [in forma pauperis] except on appeal." Walker further asserts neither the circuit clerk nor the circuit judge "directed or required [him] to pay" or "inquired into [his] (1) willin[gn]ess or (2) ability to pay ... except on appeal." However, Walker admits he has not paid any fees associated with this civil action. Thus, it appears Walker was allowed to bring, and proceed with, his civil action in the trial court in forma pauperis without a pauper's affidavit or a court order, and without any inquiry as to his financial ability to pay.

¶ 14. Without the necessary pauper's affidavit or a judicial order, Walker should not have been allowed to bring or proceed with his civil action in the trial court in forma pauperis. As noted by Walker, "it is implied that [he] was allowed to proceed in forma pauperis by the court allowing it to go as far as being filed and having process issued." However, such implication or assumption of pauper status is insufficient; there must have been some inquiry or determination of indigency.

¶ 15. Because there is no indication in the record that the circuit court ever inquired of or determined Walker's financial status, it was premature to dismiss his civil action under section 47-5-76(1). However, the record shows Walker submitted documentation that showed he was unable to afford the costs associated with his appeal. Specifically, the documentation showed Walker has no income or money in checking or savings, and has had an average monthly balance of zero dollars. Clearly, if Walker cannot afford to appeal, he could not afford to proceed in the circuit court with his civil action. Thus, while the circuit court should have addressed and determined Walker's pauper status before dismissing his case pursuant to section 47-5-76(1), we find the circuit court's dismissal was nevertheless proper, as the record shows Walker is unable to pay the necessary costs and fees.

¶ 16. We note that the circuit court dismissed this action with prejudice. "A dismissal with prejudice indicates a dismissal on the merits." Jackson v. Bell , 123 So.3d 436, 439 (¶ 7) (Miss. 2013). Since the circuit court did not address or consider the merits of Walker's claims, the dismissal should have been without prejudice.

¶ 17. Finally, as previously noted, the circuit court granted Walker's request to appeal in forma pauperis. However, "[t]he right to proceed in forma pauperis in civil cases does not extend beyond the initial trial of the matter." Bessent , 974 So.2d at 931-32 (¶ 11). While section 11-53-17 allows "persons who are truly indigent [to] proceed in civil actions as paupers[,] ... this statute authorizes in forma pauperis proceeding[s] in civil cases at the trial level only." Nelson v. Bank of Miss. , 498 So.2d 365, 365 (Miss. 1986). Also, section 47-5-76(1) specifically precludes Walker from appealing the circuit court's judgment in forma pauperis. Thus, Walker should never have been allowed to appeal in forma pauperis. Unfortunately, the citizens of Rankin County are now unduly obligated to pay Walker's court costs associated with this appeal. See Bessent, 974 So.2d at 932 (¶ 12) ("Bessent never should have been allowed to appeal his claims under the Mississippi Tort Claims Act in forma pauperis. The citizens of Hinds County are now unduly obligated to pay Bessent's court costs incident to his claim for damages.").

CONCLUSION

¶ 18. We find the circuit court erred in failing to address Walker's financial status before dismissing his civil action under section 47-5-76(1). However, "[a]n appellate court may affirm a [circuit] court's decision if the correct result is reached, even if the [circuit] court reached the result for the wrong reasons." Boone v. State , 148 So.3d 377, 379 (¶ 7) (Miss. Ct. App. 2014). It would be a waste of judicial resources to remand this case since documentation submitted by Walker makes clear he is indigent.

¶ 19. We find the circuit court's dismissal, although premature, was nonetheless appropriate in light of Walker's current status as an inmate and his financial inability to pay the necessary fees. Accordingly, we affirm the circuit court's dismissal of Walker's civil complaint, but modify the order to reflect that the dismissal is without prejudice.

¶ 20. AFFIRMED AS MODIFIED.

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

IRVING, P.J., DISSENTING:

¶ 21. The majority finds that the dismissal of Walker's complaint was proper, although a bit premature. Because I find that the circuit court apparently acted upon information not properly before it, I dissent. I would reverse and remand this case for further proceedings. I explain.

¶ 22. The majority's holding is not premised on defective service of process, because the majority opinion makes clear that it "[does] not address whether service of process was proper under Mississippi Rule of Civil Procedure 4." Majority op. at n.1. And since the appropriateness of process has not been raised in this appeal, I likewise do not address it. I also note, as does the majority, that the appellees have not filed an appellate brief. However, unlike the majority, I cannot say that an examination of the record shows the judgment can be affirmed.

¶ 23. First, with all due respect to the majority, it is perplexing how the majority holds that the instant case should be affirmed. When the appellee fails to file a brief, this Court has two options, as articulated in Poole v. Walton :

First, we may take the appellee's failure to file a brief as a confession of error and reverse. This option is favored when the record is complicated or of large volume and the case has been thoroughly briefed by the appellant with apt and applicable citation of authority so that the brief makes out an apparent case of error. However, if the record can be conveniently examined and such examination reveals a sound and unmistakable basis or ground upon which the judgment may be safely affirmed, we may disregard the appellee's error and affirm.

Poole v. Walton , 214 So.3d 1064, 1066 (¶ 5) (Miss. App. 2016). Neither of these options aligns with the instant case.

¶ 24. First, the record is neither complicated nor voluminous. Also, the appellant's brief did make out an apparent case of error. However, after an examination of the record, I cannot say that there is a sound and unmistakable basis upon which the judgment may be affirmed.

¶ 25. It appears that the majority's holding rests solely upon its interpretation and application of Mississippi Code Annotated section 47-5-76(1) (Rev. 2015) to a set of facts mentioned in the circuit court's order of dismissal. However, an examination of the record, which the majority implies it performed, fails to show that those facts were ever placed before the circuit court.

¶ 26. Section 47-5-76 provides:

(1) Except as provided in subsection (2) of this section, if an inmate plaintiff files a pauper's affidavit in a civil action and the defendant is an employee of the department and the civil action pertains to the inmate's condition of confinement, the department shall pay, out of any funds available for such purpose, all costs of court assessed against the inmate in the civil action. However, the department shall not pay the costs of court if the inmate has on three (3) or more prior occasions, while incarcerated, brought an action or appeal that was dismissed on the grounds that it was frivolous, malicious, or failed to state a claim upon which relief could be granted.
An inmate shall not bring a civil action or appeal a judgment in a civil action or proceeding in forma pauperis if the prisoner has, on three (3) or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court that was dismissed on the grounds that it was frivolous, malicious, or failed to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
(2) An inmate who proceeds in forma pauperis in a civil action shall pay twenty percent (20%) per month of the funds in his or her inmate account to the Department of Corrections until all filing fees and costs of his or her litigation are paid to the department. The department may withdraw such funds automatically from the account of any inmate permitted a civil filing as a pauper. If an inmate is allowed an appeal in forma pauperis of a civil action, the inmate shall reimburse all costs and fees to the department by automatic withdrawal each month in the amount of twenty percent (20%) of his or her funds until all state funds are reimbursed.

(Emphasis added).

¶ 27. The majority states:

The record shows that Walker, an inmate, has, on three or more prior occasions, while incarcerated or detained in a facility, brought an action in a court that was dismissed on the grounds that it was frivolous[,] malicious, or failed to state a claim upon which relief may be granted. Indeed, Walker has a long history of filing frivolous lawsuits. Majority op. at (¶ 8).
* * * *
Additionally, the record shows no evidence that Walker was under imminent danger of serious physical injury. Majority op. at (¶ 11) (internal quotation mark omitted).

¶ 28. With all due respect to the majority, the record does not contain a single pleading bearing that information, nor is there any documentation or testimony to that effect. What the record shows, among other things, is this:

1. On May 25, 2016, Walker filed a civil action in the Rankin County Circuit Court and listed the following as defendants: Brian Bailey, Jim Spears, James Rutland, Albert Bounds, Mark Thompson, Rankin County Board of Supervisors, and Rankin County Jail.
2. In the complaint, Walker alleged, among other things, that he was placed in the Rankin County Jail on April 14, 2016, and that on May 2, 2016, he was sexually assaulted by inmate Mark Thompson. He reported the incident to the jail authorities on the same day.
3. Beginning May 31, 2016, and continuing through July 1, 2016, process was obtained on the following defendants either by service or waiver of process: Bailey, Spears, Rutland, and Bounds. Mark waived process on July 16, 2016.
4. On September 12, 2016, Walker requested that the clerk issue separate default judgments against Bailey, Spears, Rutland, and Bounds, as these defendants had not answered the complaint.
5. On September 20, 2016, Walker amended his complaint to add the following defendants: Amanda Thompson, assistant jail administrator; Eddie Thompson, chief jailer; George Schwindling, an inmate; and Quality Healthcare, provider of healthcare for the Rankin County Jail. Also, on that date, Walker filed the waiver of process executed by Mark.
6. In the amended complaint, Walker alleged, among other things, that inmate Schwindling had sexually assaulted him.
7. In both the complaint and the amended complaint, Walker alleged that the jail authorities had failed to protect him from assault by inmates Mark and Schwindling.
8. The amended complaint was served on Eddie Thompson and Amanda Thompson on September 26, 2016. The record does not show if defendants Schwindling and Quality Healthcare were ever served.
9. On February 7, 2017, the circuit court entered the following order:
THIS CAUSE came before the 987 Court on the Court's sua sponte motion, to set the pending Motion for Default Judgment for hearing at the request of the Defendant, [sic] and after being advised in the premises, the Court finds such motion is well taken and should be granted.
IT IS THEREFORE ORDERED AND ADJUDGED that the Motion hearing shall be and hereby is set for hearing on the 7th day of March, 2017, at 9:00 a.m., at the Rankin County Courthouse in Brandon, Mississippi. Notice of this hearing shall be mailed, via U.S.P.S. to all parties of the case, and the Court shall arrange transportation for the Plaintiff to and from the hearing.
10. On March 23, 2017, the circuit court entered the following order:
THIS CAUSE came before the Court on the Court's sua sponte Motion to Dismiss, and after considering the matter, the Court finds this cause shall be set for hearing.
IT IS THEREFORE, ORDERED AND ADJUDGED that the hearing on the Motion to Dismiss shall be, and hereby is, continued from the 7th day of March, 2017[,] at 9:00 a.m. until the 6th day of April, 2017[,] at 1:00 p.m., at the Rankin County Justice Center in Brandon, Mississippi. Notice of this hearing shall be mailed via U.S.P.S. to all parties and counsel of record in this case, and the Court shall arrange transportation for the Plaintiff to and from the hearing.
11. On March 23, 2017, the circuit court entered the following order:
The above styled and numbered cause comes before the Court on the Court's own motion. Pursuant to Miss. Code Ann. 47-5-76(1), "an inmate shall not bring a civil action or appeal a judgment in a civil action or proceeding in forma pauperis if the prisoner has, on three (3) or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court that was dismissed on the grounds that it was frivolous, malicious, or failed to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury."
Plaintiff has filed numerous civil actions in various courts, of which, three (3) or more have been dismissed as frivolous and/or failing to state a claim upon which relief may be granted.[ ] Additionally, Plaintiff has been moved to a facility where there is no claim of imminent danger of serious physical injury.
IT IS, THEREFORE, ORDERED that the Complaint filed herein be and is hereby dismissed, with prejudice. The Circuit Clerk is hereby directed to furnish the Plaintiff with a copy of this order, and is further directed to withhold from filing any future civil action or proceeding in forma pauperis from the Plaintiff.
12. In a footnote, the court listed the following actions as having been filed by Walker:
Demario Walker v. Debra Platt and Abranda Brewer , Cause No. 2008-09-143(2); Circuit Court of Greene County Mississippi;
Demario Walker v. State of Mississippi , Civil Action No. 3:04CV140LS; U.S. Dist. Ct. for the So. Dist. of Miss.; Demario Walker v. U.S., Civil No. 08-1314 JAH (LSP); U.S. Dist. Ct. for the So. Dist. of Calif; Demario Walker v. U.S. , 08-CV-3025 (ENV) (LB); U.S. Dist. Ct. E. Dist. of NY.

¶ 29. The record does not reflect that a hearing was ever held or that the defendants ever filed any kind of responsive pleading. Therefore, it is a mystery as to how the circuit court came up with the information regarding Walker's prior filings. The majority, citing to Harris v. City of New York , 607 F.3d 18, 23 (2d Cir. 2010), states: "There is nothing wrong with a circuit court acting sua sponte to enforce the three-strikes rule." Majority op. at (¶ 10). However, the majority fails to note that the circuit court may only take judicial notice of evidence when it is readily available. Alston v. FBI , 747 F.Supp.2d 28, 30 (D.D.C. 2010). "Evidence showing the grounds for prior dismissals ... must be produced either by the defendant challenging the prisoner's IFP status or, when readily available, by the court itself." Harris, 607 F.3d at 23 (quoting Andrews v. King , 398 F.3d 1113, 1120 (9th Cir. 2005) ).

¶ 30. In any event, Harris is distinguishable from the instant case. In Harris , the appellant sought leave to proceed in forma pauperis (IFP), which was granted by the court. Id. at 20. In the instant case, Walker did not request the circuit court to proceed in forma pauperis. I will return to this point later.

¶ 31. Furthermore, in Harris , the appellees answered the complaint, but failed to address the three-strikes rule in their answer. Id. After noticing their error, the appellees filed a motion requesting that appellant's IFP status be revoked. Id. The court then relied on docket sheets to determine whether the appellant had previously brought three or more meritless claims. Id. In the instant case, not only did the appellees not file an appellate brief, but they failed to answer Walker's initial complaint.

¶ 32. It is perplexing as to how the circuit judge took judicial notice of the filings in New York and California, and as to the two cases filed in Mississippi, it does not seem likely that the Rankin County Circuit Court would have known about those cases, as they were not part of the current or past docket of the Rankin County Circuit Court.

¶ 33. Rule 201(b)-(c) of the Mississippi Rules of Evidence provides:

(b) Kinds of Facts That May Be Judicially Noticed . The court may judicially notice a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court's territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
(c) Taking Notice . The court:
(1) may take judicial notice on its own; or
(2) must take judicial notice if a party requests it and the court is supplied with the necessary information.

It is clear that Rule 201 permits a trial judge to take judicial notice only of adjudicative facts that are within the trial court's territorial jurisdiction or can be readily determined from sources whose accuracy cannot reasonably be questioned. Neither of the cases cited by the circuit court in its order of dismissal, and relied upon by the majority, appears on the circuit court docket or repose within the trial court's territorial jurisdiction, as was the case in Harris . In my judgment, the trial court cannot conduct research outside of its territorial jurisdiction under the guise of taking judicial notice of the facts found by such research. When the court does so, it becomes an advocate and not a fair and impartial arbiter.

¶ 34. The majority states:

No doubt, the circuit judge could have found many other frivolous suits filed by Walker on Westlaw or Public Access to Court Electronic Records (PACER), the federal courts' online case information system. A search of PACER shows about 100 federal cases or appeals that Walker has filed, and this Court's online docket lists fifty-seven state appeals, mandamus petitions, et cetera, that he has filed. In short, it is not surprising that Walker's history of filing frivolous lawsuits eventually came to the attention of the circuit judge.

Majority op. at (¶ 9). As to the majority's assertion that "it is not surprising that Walker's history of filing frivolous lawsuits eventually came to the attention of the circuit judge," suffice it to say that Walker's filings either had to be presented to the trial judge by the defendants, which was not the case, or discovered by the trial court by conducting research outside of its territorial jurisdiction, which is not permitted.

¶ 35. I return to the IFP matter. One fact comes through loud and clear: the record does not reflect that Walker filed his complaint as a pauper. It simply reflects that Walker apparently did not pay a filing fee when he filed his complaint. For certain, he did not make an application for permission to proceed in forma pauperis in the circuit court. It is also clear that when he filed his complaint, he was under imminent danger of serious physical injury . Therefore, even with those prior frivolous filings, section 47-5-76(1) was not a bar to his filing the complaint in the circuit court.

¶ 36. Moreover, the majority states, "the record shows no evidence that Walker was under imminent danger of serious physical injury." Majority op. at (¶ 11) (internal quotation mark omitted). I should point out that there is no evidence in this record refuting the allegations in Walker's complaint regarding the sexual assaults that he suffered. Surely, it cannot be legitimately argued that sexual assault does not constitute serious physical injury.

¶ 37. Further, the majority gestures to the Seventh, Eight, and Eleventh Circuits to help it interpret the exception to the three-strikes rule. But, "[o]nly the Third, Seventh, and Eighth Circuits have applied the serious physical injury portion of the exception." Brown v. Johnson , 387 F.3d 1344, 1349 (11th Cir. 2004) (emphasis added) (internal quotation marks omitted). The Fifth Circuit has held that "[a] prisoner's danger [is] to be made at the time of the IFP motion." Banos v. O'Guin , 144 F.3d 883, 884 (5th Cir. 1998). "[The court] must determine if danger exists at the time the plaintiff seeks to file his complaint or notice of appeal IFP." Id. at 885. The majority states:

Walker failed to allege any such present imminent danger. His complaint alleged an assault by another inmate and inactions by officials at the Rankin County Jail. The complaint clearly stated that all events occurred in or at the Rankin County Jail. However, the certificates of service for the original complaint and amended complaint and the summonses filled out by Walker show that he was at the Central Mississippi Correctional Facility (CMCF) in Pearl when he filed the original complaint and the amended complaint. Walker did not allege that he was in any imminent danger at CMCF. Therefore, the imminent-danger exception to the three-strikes rule does not apply.

Majority op. at (¶ 11) (alternations and internal quotation marks omitted).

¶ 38. The majority suggests that, at the time of the filing of his original and amended complaint, Walker had apparently been removed from the Rankin County Jail where the assaults had occurred and, therefore, was no longer in danger, because Walker's certificates of service for the original and amended complaint reflect his address as the CMCF's address instead of the Rankin County Jail's address. But the majority neglects to notice that there are several subsequent instances where both Walker and the court use the Rankin County Jail's address. The use of the Rankin County Jail's address gives an inference that Walker was still present at the Rankin County Jail when he filed his complaint. Thus, danger existed at the time he filed his complaint. Furthermore, it is perplexing how Walker could be in the custody of CMCF when he filed his complaint on May 19, 2016, but he was not sentenced until August 22, 2016.

¶ 39. But even if I were to accept, and I do not, that Walker's prior frivolous filings were a bar to his proceeding in forma pauperis, or that he did not meet the exception, I could not agree that, on these facts, dismissal of his complaint was appropriate. Section 47-5-76(2) provides in pertinent part: "An inmate who proceeds in forma pauperis in a civil action shall pay twenty percent (20%) per month of the funds in his or her inmate account to the Department of Corrections until all filing fees and costs of his or her litigation are paid to the department." There is no dispute that Walker was allowed to proceed in the circuit court without paying the filing fee and without being adjudicated a pauper. If he was not a pauper at the time he filed his complaint, he owes the filing fee. If he was a pauper, he was entitled to proceed without paying the fees up front since the allegations of his complaint make clear that he was under imminent danger of serious physical injury at the time he filed the complaint. So in that instance, the provisions of section 47-5-76(2) would become applicable, and the filing fees would be deducted on a monthly basis from his inmate account. It does not matter that he may not have had any money in his inmate account at the time of the filing.

¶ 40. Surely, the Legislature knew when it enacted section 47-5-76(2) that there would be times when an inmate may not have any money in his account. Also, it is clear to me that the Legislature did not intend to deny an inmate access to the court for redress no matter how many frivolous complaints the inmate may have filed if the inmate was presently under imminent danger of serious physical injury .

¶ 41. The majority states that "Walker submitted documentation that showed he was unable to afford the costs associated with his appeal." Majority op. at (¶ 15). The majority then concludes, "Clearly, if Walker cannot afford to appeal, he could not afford to proceed in the circuit court with his civil action." Id. The majority's backward extrapolation concerning Walker's financial status is beyond my ability to discern. Moreover, even if Walker was unable to personally pay the filing fees in 2016, that fact does not prove that he could not have gotten someone to pay the fees on his behalf. After all, he did not seek in forma pauperis status at the time he filed his complaint, and since he did not do so, the proper remedy would have been to give him notice that his complaint would be dismissed unless he either paid the filing fees or obtained permission to proceed in forma pauperis.

¶ 42. For the reasons presented, I dissent. I would reverse and remand this case for further proceedings consistent with the procedural status of the case when the court sua sponte dismissed it. And in that regard, I note that Walker had a pending motion for a default judgment against some of the appellees who had been served with process but had failed to answer his complaint in the required time period.

CARLTON AND WESTBROOKS, JJ., JOIN THIS OPINION.

      We do not address whether service of process was proper under Mississippi Rule of Civil Procedure 4. Walker filed acknowledgments of service that purported to show service on Bailey, Bounds, Spears, and Rutland by regular mail pursuant to M.R.C.P. 4(c)(3). All four acknowledgments appear to bear the same illegible signature of some person with purported authority to accept service on behalf of all four defendants-although the description of the basis of that authority is also illegible. The acknowledgments purport to bear the signature of a notary but lack a notarial seal.

      Congress enacted the federal rule in 1996 as part of the Prison Litigation Reform Act. Pub. L. No. 104-134, § 804. The Legislature enacted Mississippi's nearly identical rule the same year. 1996 Miss. Laws ch. 395, § 1.

      Under section 11-53-17, "[a] citizen may commence any civil action in any court without being required to prepay fees or give security for costs before or after commencing suit by taking and subscribing a statutorily proscribed affidavit." Bessent v. Clark , 974 So.2d 928, 931 (¶ 11) (Miss. Ct. App. 2007).


source: Caselaw Access Project

author: WILSON, J., FOR THE COURT:

license: Public Domain

text:
    Willie J. PERKINS, Sr., Appellant v. James K. LITTLETON, Appellee
    NO. 2017-CP-00225-COA
    Court of Appeals of Mississippi.
    August 21, 2018
    ATTORNEY FOR APPELLANT: WILLIE J. PERKINS SR. (PRO SE), Greenwood
    ATTORNEY FOR APPELLEE: JAMES K. LITTLETON (PRO SE), Greenwood
    BEFORE CARLTON, P.J., WILSON AND GREENLEE, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. During a lengthy radio advertisement in support of his campaign for circuit court judge, James K. Littleton stated that "the father of one of [his] opponents" had "conspired" with Littleton's family "to go public with [a] family dispute to derail [Littleton's] campaign." Littleton had only two opponents in the election. One opponent's father was deceased. The other opponent's father was Willie K. Perkins Sr. Perkins perceived that Littleton's statement was directed at him, he informed Littleton that the statement was false and demanded a retraction, and he subsequently sued Littleton for defamation.

¶ 2. The Leflore County Circuit Court granted summary judgment for Littleton on the ground that his statement was "not clearly and unmistakably directed toward [Perkins]." We affirm the circuit court's ruling but for different reasons. Littleton's statement was clearly directed at Perkins because it could not have been directed at anyone but Perkins. In addition, there are factual disputes as to whether the statement was false and whether Littleton knew it was false. Nonetheless, we affirm the circuit court's ruling because, as a matter of law, Littleton's statement was not defamatory.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. Perkins and Littleton are both practicing attorneys in Greenwood. Perkins is also a state legislator. Littleton is also a justice court judge.

¶ 4. In 2014, Littleton was one of three candidates for circuit court judge in the Fourth Circuit Court District, Place 3. The other two candidates were Perkins's daughter (Takiyah Perkins) and Carol White-Richard.

¶ 5. In August and September 2014 the Greenwood Commonwealth published articles about a lawsuit that Littleton's mother and sister had filed against Littleton in the Bolivar County Chancery Court. In the lawsuit, Littleton's mother and sister alleged that Littleton had forged deeds related to his deceased father's estate. As the newspaper articles reported, Littleton denied the lawsuit's allegations.

¶ 6. In September 2014, Littleton ran a lengthy advertisement on two local radio stations. In the ad, Littleton stated in part as follows:

This is James Littleton, candidate for Circuit Court Judge of the Fourth District, Place 3. In addressing the story first reported by the Greenwood Commonwealth , I'm not surprised that they would report a misleading and half-truth story as they did.
Now, let's get to the whole truth. First, it was reported that I cursed my mother out. The Commonwealth has been armed with this story for two weeks, and the reporter writing this story has interviewed me, recorded me, but has never asked me to respond to this false allegation. I am a child of God and I am obedient to my parents.
Second, they failed to report that I have known about a conspiracy and meeting between my family and the father of one of my opponents for several months where they conspired to go public with this family dispute to derail my campaign. Prior to being contacted by the Commonwealth, my sister sent derogatory and false comments to one of my campaign workers via facebook and stated she supported Takiyah Perkins for Circuit Court Judge.
....
I'm aware of the allegations made by my mother who birthed me into this world and my sister that I forged their signatures on various documents in the handling of my deceased father's estate several years ago. I love my mother and my sister but I am disappointed in them. These allegations were made by them approximately one year ago well in advance of my decision to run for circuit judge. I want the voters ... to know that these allegations are not true, and that I have not forged the signatures of my mother or sister on any document relating to my father's estate.

¶ 7. The following day, Perkins sent Littleton a cease-and-desist letter and demand for retraction. Perkins identified the following statement from the ad as false and defamatory: "I have known about a conspiracy and meeting between my family and the father of one of my opponents for several months where they conspired to go public with this family dispute to derail my campaign." Perkins asserted that the statement clearly was directed toward him because Littleton knew that White-Richard's father was deceased. Perkins asserted that the statement was false because he had never met or spoken to Littleton's mother or sister.

¶ 8. According to Littleton, the ad already was scheduled to stop running on or about the day he received Perkins's letter. Littleton did not retract his statement because he says he believed it to be true. Littleton claims that his mother told him "that she had met with the father of one of his opponents" in an effort to derail his campaign. Littleton also says that his mother did not tell him whose father she met with, and he did not know. Littleton denies that he knew at the time that White-Richard's father was deceased, and he denies that his statement was directed at Perkins.

¶ 9. In September 2015, Perkins sued Littleton for libel, slander, and defamation. Littleton answered and subsequently filed a motion to dismiss or for summary judgment. Littleton argued that Perkins could not prove defamation because the statement in the radio ad was not clearly directed at Perkins. Littleton also argued that the alleged defamation was not clear and unmistakable on its face and that Perkins's claim was based on innuendo, speculation, and conjecture. Littleton's motion references several attached exhibits, including Littleton's affidavit, but those exhibits do not appear to have been filed in the circuit court.

¶ 10. In response, Perkins argued that Littleton's comments clearly were directed toward him because Littleton knew that White-Richard's father was deceased. In an affidavit, Perkins stated that Littleton was present when White-Richard stated that her father was deceased during a speech at a July 2014 meeting of the Greenwood Voters League. Perkins also submitted White-Richard's father's obituary, which shows that he passed away on November 17, 2013, ten months before Littleton ran his ad. Perkins also submitted affidavits from three other Leflore county residents who heard Littleton's ad. All three knew that Littleton's comment was directed at Perkins because they knew that White-Richard's father was deceased.

¶ 11. Perkins also argued that Littleton knew that his statement was false. In support, Perkins submitted affidavits from Littleton's mother, Bonnie Littleton, and sister, Melaney Littleton Phillips. Both women stated that they had never met or talked to Perkins or conspired with Perkins to derail Littleton's campaign. In addition, Bonnie Littleton specifically denied that she had ever told Littleton that she "met with the father of one of his opponents." Bonnie Littleton's affidavit states: "This sworn statement by my son is a complete falsehood. I never made any such statement to my son."

¶ 12. In rebuttal, Littleton submitted an affidavit from Emma Bell stating that she heard Littleton's mother tell him that she had met with the father of one of Littleton's opponents. Bell further stated that she did not know that White-Richard's father was deceased and, thus, did not know whom Littleton's mother was talking about. Bell's affidavit also asserts that Bonnie Littleton is a known "liar."

¶ 13. Following a hearing, the circuit court found that the allegedly defamatory statement was "not clearly and unmistakably directed toward [Perkins]." The court reasoned that the particular statement did "not specifically name [Perkins] or his daughter," and "although some listeners may have believed the statement was about [Perkins], the statement by itself was insufficient to establish a claim of slander." Accordingly, the court granted Littleton's motion for summary judgment. Perkins thereafter filed a timely notice of appeal.

ANALYSIS

¶ 14. On appeal, Perkins argues that the circuit court erred by granting Littleton's motion for summary judgment. Perkins specifically argues that the circuit court erred by treating his claim as a claim for "slander" rather than "libel" and by ruling that a "defamatory statement must refer to [the plaintiff] by name." Perkins also argues that Littleton effectively "accused [him] of a criminal conspiracy." Finally, Perkins argues that the circuit court erred by denying as moot his motion for leave to conduct additional discovery and his motion to compel the Greenwood Commonwealth to respond to a subpoena. Littleton responds to Perkins's arguments and additionally argues that the circuit court's ruling was correct because Perkins is a "public figure" and cannot prove "actual malice." In his reply brief, Perkins argues that Littleton waived the "public figure" issue because he did not raise the issue in the circuit court.

¶ 15. As we explain below, we conclude that the statement was clearly directed at Perkins, and there are factual disputes as to whether the statement was false and whether Littleton knew it was false. However, we affirm because we conclude, as a matter of law, that the statement was not defamatory. See Stroud v. Progressive Gulf Ins. , 239 So.3d 516, 526 (¶ 31) (Miss. Ct. App. 2017) ("This Court may affirm a circuit court if the correct result is reached, even if the circuit court reached the correct result for the wrong reasons." (brackets and internal quotation mark omitted) ). Therefore, we need not address the various additional issues raised by the parties on appeal. See Fulton v. Miss. Publishers Corp. , 498 So.2d 1215, 1216 (Miss. 1986) ("The threshold question is whether the statement made was defamatory, for if the statement was not defamatory, little else matters." (citation omitted) ).

I. Littleton's statement was clearly directed toward Perkins.

¶ 16. The Mississippi Supreme Court has stated that "[t]wo restrictions upon the action for defamation are and must be strictly enforced." Ferguson v. Watkins , 448 So.2d 271, 275 (Miss. 1984). "First, the words employed must have clearly been directed toward the plaintiff." Id. Second, "the defamation must be clear and unmistakable from the words themselves and not be the product of innuendo, speculation or conjecture." Id.

¶ 17. The circuit court granted summary judgment based on the first of these two restrictions, finding that Littleton's statement was "not clearly and unmistakably directed toward [Perkins]." The circuit court emphasized that Littleton did not "specifically name [Perkins] or his daughter." However, we agree with Perkins that the statement was clearly directed at him and that the circuit court erred by finding otherwise.

¶ 18. To begin with, the circuit court's description of Littleton's statement is accurate only in a narrow and technical sense. Although Littleton did not name Perkins or his daughter within the specific statement that Perkins considers defamatory, he did name Perkins's daughter in the very next sentence of the same radio ad. Moreover, Littleton named only Takiyah Perkins and not his other opponent in the election. Arguably, this was sufficient by itself to clearly direct the statement at Willie Perkins. See Lawrence v. Evans , 573 So.2d 695, 698 (Miss. 1990) ("The said-to-be-offending words must be set in the context of the entire utterance. Their complexion draws color from the whole.").

¶ 19. However, we need not decide whether Littleton's reference to Perkins's daughter is sufficient, standing alone, to show that Littleton's statement was clearly directed at Perkins. It is unnecessary to decide that issue because the summary judgment record shows that-as a matter of objective and undisputed fact-Littleton's statement could not have been directed at anyone but Perkins . As discussed above, there is no dispute that White-Richard's father was deceased. Thus, when Littleton said that "the father of one of [his]

opponents" had "conspired" with his family, Perkins was the only person that Littleton could have been talking about.

¶ 20. We agree with Perkins that a statement may be clearly directed toward the plaintiff even if it does not designate the plaintiff by name. As the Mississippi Supreme Court has explained,

Extrinsic facts may make it clear that a statement refers to a particular individual although the language used appears to defame nobody. It is not necessary that everyone recognize the [plaintiff] as the person intended; it is enough that any recipient of the communication reasonably so understands it.

Conroy v. Breland , 185 Miss. 787, 796, 189 So. 814, 815 (1939) (quoting Restatement (First) of Torts § 564 cmt. b (1938) ); see also Montgomery Ward & Co. v. Skinner , 200 Miss. 44, 58, 25 So.2d 572, 575 (1946) ("[I]t was competent for the plaintiff to prove such additional facts and circumstances as would throw light on the question as to whether or not the third persons present would reasonably understand that the speaker intended to reflect upon her.").

¶ 21. More recently, in McCullough v. Cook , 679 So.2d 627 (Miss. 1996), the Supreme Court considered a defamation claim based on a sheriff's statement to a reporter that a truck with a particular license tag number had been confiscated in a drug bust. See id. at 630-31. The Court held that the sheriff's statement was actionable because a jury could find that the sheriff knew that (1) tag records would show the plaintiff as the registered owner of the truck, and (2) the reporter likely would run a check on the tag number and publish the plaintiff's name as the owner of the vehicle, but (3) the plaintiff had actually sold the truck weeks before the drug bust. See id. at 631. Significantly, the Court held that the sheriff's statement was actionable even though he did not use the plaintiff's name. See id. at 629-30 ; see also Mitchell v. Random House Inc. , 703 F.Supp. 1250, 1256 (S.D. Miss. 1988) (recognizing that statements in a book were clearly directed at the plaintiff even though she was referred to only as the "sister" of another person and never identified by name), aff'd , 865 F.2d 664 (5th Cir. 1989).

¶ 22. As a federal district court in Mississippi has stated, "It is generally recognized ... that a plaintiff need not be mentioned by name so long as he is pointed to by description or other circumstance tending to identify him as an object of the defamatory language." Gales v. CBS Broad. Inc. , 269 F.Supp.2d 772, 780 (S.D. Miss. 2003) (internal quotation mark omitted), aff'd , 124 F. App'x 275 (5th Cir. 2005). In addition, the Restatement (First) of Torts and Restatement (Second) of Torts both state that "[i]t is not necessary that the plaintiff be designated by name; it is enough that there is such a description of or reference to him that those who hear or read reasonably understand the plaintiff to be the person intended." Restatement (First) of Torts § 564 cmt. b (1938); Restatement (Second) of Torts § 564 cmt. b (1977). Many other authorities support this rule.

¶ 23. Applying this rule, it is clear that Littleton's statement was directed toward Perkins. As discussed above, based on Littleton's statement and the objective and undisputed facts, the statement could not have been directed at anyone but Perkins. Moreover, Perkins provided additional evidence in the form of three affidavits of residents of the community who heard the advertisement and immediately knew that Littleton was talking about Perkins. See 3 Dan B. Dobbs et al., Law of Torts § 528 (2d ed. 2011) ("One type of admissible extrinsic evidence is the declaration by a witness that he was a recipient of the publication and that he understood it as referring to the plaintiff."). This was more than sufficient to meet Perkins's burden of showing that the statement was directed at him. See Conroy , 185 Miss. at 796, 189 So. at 815.

¶ 24. Littleton also makes an alternative argument that the circuit court's ruling should be affirmed because he himself did not know that his statement was directed at Perkins. Littleton claims that all he knew was what his mother told him, which was "that she had met with the father of one of his opponents." However, Littleton's argument fails because he relies on facts that are in dispute. In an affidavit, Littleton's mother denied that she made the statement that Littleton attributes to her. In addition, Perkins's affidavit states that Littleton was present when White-Richard stated that her father was deceased.

¶ 25. Moreover, Perkins's argument also fails because there is no "requirement that the defendant actually intend to refer to the plaintiff." Dobbs, supra , § 527. Rather, the issue is whether a hearer "would reasonably believe" that the statement refers to the plaintiff. Id. ; accord Restatement (Second) of Torts § 564 cmt. b (1977) ("If the communication is reasonably understood by the person to whom it is made as intended to refer to the plaintiff, it is not decisive that the defamer did not intend to refer to him."); Elder, supra , § 1:30 ("The cases generally reject any suggestion that defendant's intent ... is controlling." (collecting cases) ). Put simply, a speaker cannot defame an identifiable person and then avoid liability by claiming that he himself did not know whom he was defaming.

II. Though clearly directed toward Perkins, Littleton's statement was not defamatory.

¶ 26. "In the procedural life of a defamation suit, the court determines whether the statement bears the meaning ascribed to it by the plaintiff and whether this meaning is defamatory." Fulton , 498 So.2d at 1216. "If the court decides against the plaintiff on either of these questions, the case is ended." Id. "Subject to our normal standards, the question whether said-to-be-offending words are defamatory may be decided by the Court without submission to the trier of fact." Lawrence , 573 So.2d at 697.

¶ 27. "There is a difference between making a false statement about another person and making a defamatory statement. The latter requires more than mere error." Id. "[Our Supreme] Court has described a defamatory statement as any written or printed language which tends to injure one's reputation, and thereby expose him to public hatred, contempt or ridicule, degrade him in society, lessen him in public esteem or lower him in the confidence of the community." Journal Publ'g Co. v. McCullough , 743 So.2d 352, 360 (¶ 24) (Miss. 1999) (brackets and internal quotation marks omitted). "The said-to-be-offending words must be set in the context of the entire utterance. Their complexion draws color from the whole." Lawrence , 573 So.2d at 698.

¶ 28. "[T]he defamation must be clear and unmistakable from the words themselves and not be the product of innuendo, speculation or conjecture." Journal Publ'g Co. , 743 So.2d at 360 (¶ 24). If the hearer "must struggle to see how and whether they defame, by definition the words are not defamatory in law. Words which may be found defamatory only with the aid of a most vivid imagination are not actionable." Lawrence , 573 So.2d at 698 (internal quotation marks omitted).

¶ 29. The words at issue in this case consist of an accusation that Perkins met and "conspired" with Littleton's family "to go public with [a] family dispute to derail [Littleton's] campaign." The "family dispute" centered around a lawsuit in chancery court in which Littleton's mother and sister alleged that Littleton had forged documents related to his father's estate. The lawsuit had been pending-and, thus, the allegations against Littleton had been a matter of public record-for about a year when they were reported in the local newspaper during Littleton's campaign for circuit judge. As Littleton's radio ad stated, the family dispute arose "well in advance of [Littleton's] decision to run for circuit judge." Littleton stated that his mother's and sister's allegations against him were false, but Littleton has never stated or implied that Perkins was responsible for those allegations or that Perkins played any role in initiating the "family dispute." To the contrary, in the context of the entire utterance, Littleton's only statement directed at Perkins was that Perkins had "conspired" to bring a pending lawsuit to the attention of the newspaper and the public.

¶ 30. In context, Littleton's statement was not defamatory. The essence of the allegedly defamatory words was that Perkins "conspired" to tell a newspaper reporter about a pending lawsuit-a matter of public record-in order to "derail" Littleton's campaign. It is undoubtedly common for political candidates and their supporters to feed the press information about their political opponents. They often do so in an effort to "derail" the opponent's campaign. This is part of what has become known as "opposition research." It is possible for such tactics to involve conduct that is unethical. However, it is not inherently defamatory to assert that a person sought to obtain a political advantage by telling a reporter about a matter of public record involving a candidate for public office. In substance, that is all that Littleton said about Perkins.

¶ 31. Perkins takes particular offense at Littleton's use of the term "conspiracy." Indeed, Perkins argues that we should interpret Littleton's statement as an accusation that Perkins was a member of a criminal conspiracy. However, this is hardly the "clear and unmistakable" import of "the words themselves." Journal Publ'g Co. , 743 So.2d at 360 (¶ 24). A claim for defamation cannot be based on "innuendo, speculation or conjecture," id. , or a "vivid imagination," Lawrence , 573 So.2d at 698. "[B]y definition," "words are not defamatory in law" if we "must struggle to see how and whether they defame." Id. On its face, Littleton's statement does not accuse Perkins of any criminal activity. Nor does the statement clearly or unmistakably imply that Perkins committed a crime. Accordingly, we cannot attribute that meaning to it.

¶ 32. Moreover, the First Amendment protects "imaginative expression" or "rhetorical hyperbole" when such statements "cannot reasonably be interpreted as stating actual facts about an individual." Milkovich v. Lorain Journal Co. , 497 U.S. 1, 20, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) (brackets and internal quotation mark omitted). For example, in Greenbelt Cooperative Publishing Association v. Bresler , 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970), the Supreme Court held, as a matter of constitutional law, that statements characterizing a developer's negotiating tactics as "blackmail" could not support a claim for defamation. The Court reasoned that, in context, no one could have interpreted the statements as "charging [the developer] with the commission of a criminal offense." Id. at 14, 90 S.Ct. 1537. "On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the developer's] negotiating position extremely unreasonable." Id.

¶ 33. Similarly, in Old Dominion Branch No. 496, National Association of Letter Carriers, AFL-CIO v. Austin , 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974), the Court held that a union newsletter's characterization of non-union workers as "traitors" could not support a claim for libel. See id. at 283-86, 94 S.Ct. 2770. Following the reasoning of Bresler , the Court held that it was "impossible to believe that any reader ... would have understood the newsletter to be charging the ['traitors'] with committing the criminal offense of treason." Id. at 285, 94 S.Ct. 2770. Rather, the term was "merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members towards those who refuse to join." Id. at 286, 94 S.Ct. 2770 ; see also, e.g. , Ollman v. Evans , 750 F.2d 970, 1005 (D.C. Cir. 1984) (Bork, J., concurring) ("[In Bresler and Austin , the Supreme Court] assumed that even if these statements were made with actual malice, they were protected because the context in which they appeared alerted the reader that the statements were not to be read as factual allegations."); Pullum v. Johnson , 647 So.2d 254, 258 (Fla. Dist. Ct. App. 1994) (holding that in the context of a speech criticizing the defendant for supporting an amendment to a local ordinance to allow the sale of liquor, the plaintiff's description of the defendant as a "drug pusher" was only "rhetorical hyperbole" and could not be understood as accusing the defendant of an actual crime).

¶ 34. Likewise in this case, no reasonable listener would have understood the radio ad's brief reference to Perkins as charging him with a crime. At most, the statement alleged that Perkins had, for political reasons, told a newspaper reporter about an ongoing lawsuit against Littleton. But even assuming that this statement was false, it was not defamatory.

¶ 35. Not every "false statement about another person" rises to the level of a "defamatory statement." Lawrence , 573 So.2d at 697. "[M]any demonstrably unfair" "linguistic slings and arrows" are not actionable. Ferguson , 448 So.2d at 276. Mississippi law does not "assess damages for all bruised feelings." Id. Littleton's brief reference to Perkins as the unnamed "father of one of my opponents" did not expose Perkins "to public hatred, contempt or ridicule, degrade him in society, lessen him in public esteem or lower him in the confidence of the community." Journal Publ'g Co. , 743 So.2d at 360 (¶ 24). At worst, it was an untrue statement that, for political reasons, Perkins told a local reporter about a pending lawsuit involving a candidate for public office. As a matter of law, the statement was not defamatory. Accordingly, we affirm the final judgment of the circuit court granting summary judgment in favor of Littleton.

¶ 36. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., BARNES, FAIR, GREENLEE AND TINDELL, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., NOT PARTICIPATING.

      We quote the transcript of the ad that is in the record with only minor alterations to its punctuation.

      "Defamation is divided into two torts, including libel for written defamations and slander for oral ones." Funderburk v. Johnson , 935 So.2d 1084, 1101 (¶ 45) (Miss. Ct. App. 2006). According to the Restatement (Second) of Torts , "Broadcasting of defamatory matter by means of radio or television is libel, whether or not it is read from a manuscript." Restatement (Second) of Torts § 568A (1977). It does not appear that this issue has been decided under Mississippi law, and we need not decide it in this case.

      The Greenwood Commonwealth filed a motion to quash the subpoena in the circuit court. However, Perkins's notice of appeal failed to designate the newspaper as a party "against whom the appeal [was] taken." M.R.A.P. 3(c). Moreover, there is no indication that Perkins served the newspaper with a copy of his notice of appeal, and the newspaper did not file a brief on appeal. Therefore, we doubt that the issue of the subpoena is properly before us on appeal. See, e.g. , Estate of Perry ex rel. Rayburn v. Mariner Health Care Inc. , 927 So.2d 762, 765 (¶ 8) (Miss. Ct. App. 2006) ("Pursuant to Rule 3(c), our review is limited to those parties named in an appellant's notice of appeal."). In any event, the issue is moot based on our determination that Littleton's statement was not defamatory.

      See New York Times Co. v. Sullivan , 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (holding that the First Amendment "prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not").

      See, e.g. , 1 Rodney A. Smolla, Law of Defamation § 4:40 (2d ed. 1999) ("The plaintiff need not be cited by name for the defamation to be 'of and concerning' him." (collecting cases) ); David Elder, Defamation: A Lawyer's Guide § 1:30 (2008) (stating that it is "well established" that the plaintiff need not "be specifically named" in the defamatory statement (collecting cases) ); Doe v. Hagar , 765 F.3d 855, 862-63 (8th Cir. 2014) ("[T]he plaintiff need not be named if the alleged libel contains matters of description or other references therein, or the extraneous facts and circumstances show that plaintiff was intended to be the object of the alleged libel, and was so understood by others." (alteration omitted) ); Croixland Props. Ltd. P'ship v. Corcoran , 174 F.3d 213, 216 (D.C. Cir. 1999) ("[I]t suffices that the statements at issue lead the listener to conclude that the speaker is referring to the plaintiff by description, even if the plaintiff is never named ...."); Alvord-Polk Inc. v. F. Schumacher & Co. , 37 F.3d 996, 1015 (3d Cir. 1994) ("The law does not require that a plaintiff be specifically named in an allegedly defamatory statement, for a statement might be defamatory if, by description or circumstances, it tends to identify the plaintiff as its object.").

      For the same reason, we also reject Littleton's argument that he is entitled to summary judgment because Perkins cannot "prove[ ] that the statement was made with 'actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. , 376 U.S. at 279-80, 84 S.Ct. 710. Littleton claims that he believed his statement to be true because he simply repeated what his mother told him. However, his mother's unequivocal denial creates a factual dispute and permits an inference that Littleton knew that the statement was false.

      In Austin , because the Court held that the "publication ... was protected under the federal labor laws," it was unnecessary for the Court to address the defendants' argument that their speech was also protected by the First Amendment. Austin , 418 U.S. at 283 n.15, 94 S.Ct. 2770. However, the Court relied on and followed Bresler 's constitutional analysis. See Austin , 418 U.S. at 284-86, 94 S.Ct. 2770.


author: CARLTON, J., FOR THE COURT:

text:
    Rickey MCCARLEY, Appellant v. Kellie MCCARLEY, Appellee
    NO. 2016-CA-01674-COA
    Court of Appeals of Mississippi.
    August 21, 2018
    ATTORNEYS FOR APPELLANT: DAVID O. BUTTS JR., WILLIAM WAYNE HOUSLEY JR., TUPELO
    ATTORNEY FOR APPELLEE: GREG E. BEARD, BOONEVILLE
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. Rickey McCarley appeals the Prentiss County Chancery Court's judgment awarding his wife, Kellie McCarley, separate maintenance. Rickey asserts the following assignments of error: (1) the chancellor erred by failing to make the transcript of her telephonic hearing part of the record and (2) the chancellor erred in awarding Kellie separate maintenance. Finding no error, we affirm the chancellor's judgment.

FACTS

¶ 2. Rickey and Kellie were married in November 1979 and separated in October 2015. At the time of their separation, Rickey and Kellie had two adult children.

¶ 3. On February 5, 2016, Rickey filed a complaint for divorce from Kellie on the grounds of constructive desertion, habitual cruel and inhuman treatment, and irreconcilable differences. Rickey also set forth his specific requests regarding the division of marital property.

¶ 4. On February 11, 2016, Kellie filed a complaint alleging that she and Rickey separated due to Rickey's adultery and habitual cruel and inhuman treatment. Kellie requested that the chancellor award her temporary alimony and permanent separate maintenance during the term of the separation, as well as continued coverage under Rickey's insurance policy and one-half of Rickey's retirement. On March 28, 2016, the chancellor entered an order consolidating the cases. The chancellor then entered a "Temporary Agreed Order" on June 15, 2016, requiring Rickey to maintain Kellie's health insurance and pay her $250 every two weeks; the chancellor also granted Kellie exclusive use and possession of the marital home.

¶ 5. At a trial held on October 24, 2016, the chancellor heard testimony from Kellie and Rickey, as well as Rickey's brother, Roger McCarley, and Penny Gravedoni, Rickey's girlfriend. After the trial, the chancellor informed the parties that although she would like to make a ruling from the bench that same day, she needed time to review the exhibits presented by the parties. The chancellor then scheduled a telephone conference with the attorneys, explaining that she would give her opinion at that time and also ask one of the attorneys to prepare the order. The transcript of the telephone conference does not appear in the record.

¶ 6. On December 2, 2016, the chancellor entered an order denying Rickey's complaint for divorce on the ground of habitual cruel and inhuman treatment. However, the chancellor found that Kellie met her burden of proving that she was entitled to separate maintenance. The chancellor awarded Kellie the marital home and $500 per month for spousal support. The chancellor also divided the other marital property.

¶ 7. On December 19, 2016, the chancellor entered an amended order clarifying that because she found Kellie "is without material fault in the separation and that [Rickey] abandoned [Kellie] and has refused to provide any support," Kellie met her "burden of proof necessary to support her claim for separate maintenance."

¶ 8. Rickey timely appealed the chancellor's order.

STANDARD OF REVIEW

¶ 9. "This Court employs a limited standard of review when considering domestic-relations cases." Jackson v. Jackson , 114 So.3d 768, 773 (¶ 10) (Miss. Ct. App. 2013). On appeal, we will not disturb a chancellor's findings if they are "supported by substantial credible evidence unless the chancellor abused ... her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Knighten v. Hooper , 71 So.3d 1208, 1209 (¶ 5) (Miss. Ct. App. 2011). We review questions of law de novo. Id.

DISCUSSION

I. Telephone Hearing

¶ 10. Rickey argues that the chancellor erred in failing to direct that the transcript from the telephone opinion be made part of the record. Rickey asserts that the amended order only states the chancellor's conclusions in very abbreviated form and contains none of the underlying facts nor applies the law to those facts.

¶ 11. In support of his argument, Rickey cites to Uniform Chancery Court Rule 4.02, which provides that a chancellor's opinion may be given orally or in writing. If the chancellor pronounces her opinion orally, then "it shall be taken down by the [c]ourt [r]eporter who shall, when directed by the [c]ourt, transcribe the same and submit it to the [c]hancellor for correction and approval." UCCR 4.02. Rule 4.02 mandates that whether the opinion rendered is made orally or in writing, it "shall be filed among the papers and become a part of the record in the cause without any order or direction to that effect." Id.

¶ 12. We recognize that Rule 52(a) of the Mississippi Rules of Civil Procedure states that in cases tried without a jury, "the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon and judgment shall be entered accordingly." (Emphasis added).

¶ 13. Similarly, Uniform Chancery Court Rule 4.01 provides "In all actions where it is required or requested , pursuant to [ Rule] 52, the [c]hancellor shall find the facts specially and state separately his conclusions of law thereon. The request must be made either in writing , filed among the papers in the action, or dictated to the [c]ourt [r]eporter for record and called to the attention of the [c]hancellor ." (Emphasis added).

¶ 14. At the conclusion of the hearing in the present case, the chancellor scheduled a telephone conference with the attorneys. The chancellor explained that she would give her opinion on the matter via telephone and would also request one of the attorneys to prepare the order at that time. The record contains no transcript from the telephone conference, but the record does contain the chancellor's written order and amended order setting forth her ruling.

¶ 15. In the chancellor's amended order, she denied Rickey's complaint for divorce on the ground of habitual cruel and inhuman treatment based on "lack of proof." The chancellor also found "that [Kellie] is without material fault in the separation and that [Rickey] abandoned [Kellie] and has refused to provide any support." The chancellor then determined that Kellie "has met the burden of proof necessary to support her claim for separate maintenance." The record contains no request by Rickey or his attorney for the chancellor to find specially and state separately her conclusions of law.

¶ 16. We recognize that "[t]he burden rests upon the appellant to provide a record that contains all information needed for an understanding of matters relied upon for reversal on appeal." Wells v. Price , 102 So.3d 1250, 1259 (¶ 30) (Miss. Ct. App. 2012). This Court cannot consider or act upon matters not included in the record; rather, we "must confine ourselves to what actually does appear in the record." Id. In Wells , 102 So.3d at 1259 (¶ 32), the appellant failed to include in the record the transcripts from a bench trial and a telephone hearing, as well as the judgment entered after a separate bench trial. This Court affirmed the trial court's judgment, explaining that "[b]ecause [the appellant] did not provide us an adequate record, ... we cannot find the trial court in error and must assume the trial court's ruling is correct." Id.

¶ 17. In Baggett v. Baggett , 246 So.2d 887, 889 (¶ 21) (La. App. 2 Cir. 2017), this Court found no merit to the appellant's claim that the chancellor erred by failing to make findings of fact and conclusions of law in his judgment denying the appellant's complaint for divorce. The Baggett court held that not only did the appellant fail to request that the chancellor make findings of fact and conclusions of law, but the facts of the case "were neither hotly contested, greatly in dispute, nor complex so as to require the chancellor to [make findings of fact and conclusions of law] without a request." Id. at (¶ 19) (citing Tricon Metals & Servs., Inc. v. Topp , 516 So.2d 236, 239 (Miss. 1987) ).

¶ 18. Similarly, in Turner v. Turner , 744 So.2d 332, 337 (¶ 22) (Miss. Ct. App. 1999), the appellant argued that the chancellor erred by failing to make separate findings of facts and conclusions of law or on-the-record findings regarding his award of child support. Upon review, this Court found no error, explaining that "neither party requested in writing, or in any other acceptable manner, that the chancellor issue separate findings of fact or conclusions of law." Id. at (¶ 26).

¶ 19. In the case before us, the record contains the transcript of the trial testimony from Rickey, Kellie, Penny, and Rickey's brother, Roger. Although the record does not contain a transcript of the telephone conference with the attorneys where the chancellor made her ruling orally, the record does contain the chancellor's amended written order reflecting her aforementioned ruling. Furthermore, Rule 4.02 mandates that if a party requests the chancellor to find the facts specially and state separately her conclusions of law, "[t]he request must be made either in writing, filed among the papers in the action, or dictated to the [c]ourt [r]eporter for record and called to the attention of the [c]hancellor." No such request by either party appears in the record before us. This issue lacks merit.

II. Separate Maintenance

¶ 20. Rickey also argues that the chancellor erred in determining that Kellie did not materially contribute to the separation, and therefore this Court should reverse the chancellor's award of separate maintenance to Kellie. Rickey maintains that the evidence at trial showed that Kellie's lack of intimacy and hostility towards Rickey over the years served as a material and contributing cause to their separation.

¶ 21. We review a chancellor's award of separate maintenance for an abuse of discretion. Jackson , 114 So.3d at 773 (¶ 12). As stated, we will not disturb a chancellor's findings if they are "supported by substantial credible evidence unless the chancellor abused ... her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Knighten , 71 So.3d at 1209 (¶ 5).

¶ 22. This Court has held that "[a] chancellor may award separate maintenance when (1) the parties have separated without fault by the wife and (2) the husband has willfully abandoned the wife and refused to support her." Williams v. Williams , 224 So.3d 1282, 1285 (¶ 9) (Miss. Ct. App. 2017) (citing Jackson , 114 So.3d at 775 (¶ 17) ). In order to receive an award of separate maintenance, a wife does not have to be blameless, "but her (mis)conduct must not have materially contributed to the separation." Id. (quoting Daigle v. Daigle , 626 So.2d 140, 145 (Miss. 1993) ). In other words, because an award of separate maintenance arises from equitable principles, "equity requires that ... the requesting spouse ... show [that] no significant conduct on her part negatively impacted the marriage or contributed to the separation." Jackson , 114 So.3d at 774 (¶ 16) ; see also King v. King , 246 Miss. 798, 152 So.2d 889, 891 (1963) (holding that where a wife's fault regarding the separation "is equal to or greater than that of her husband," it may serve as a defense to the wife's suit for separate maintenance.).

¶ 23. In Jackson , 114 So.3d at 776 (¶ 21), we reversed the chancellor's award of separate maintenance to the wife, Linda, after finding that the chancellor failed to first determine whether Linda materially contributed to the separation. This Court explained that "[t]he equitable relief of separate maintenance requires the requisite evidence of a separation without fault of the wife as well as evidence showing no significant misconduct on her behalf materially contributed to the separation of the parties." Id. The chancellor's findings below reflected that "Linda asserted that she wanted to work things out with [her husband,] Paul; that she still loved him; and that she would reconcile if Paul met certain unspecified conditions." Id. at (¶ 20). This Court explained, however, that Linda bore the burden of establishing in the record not only a "present willingness to reconcile," but also "that she had not engaged in significant marital misconduct contributing to the separation." Id. This Court's review of the record revealed that Paul separated from Linda after a five to six year period during which Linda "adamantly proclaim[ed] no love for Paul; secretly conduct[ed] financial dealings; fail[ed] to provide companionship or other support for the relationship; ... demand[ed] [Paul] leave the marital home[;] [and] ... repeatedly reminded [Paul] that the marital house and land were hers and that he held no interest in the property." Id. at 777-78 (¶ 26). This Court determined that Linda's actions during this time period constituted marital fault and ultimately held that Linda failed to provide substantial evidence to show that "no significant misconduct on her behalf contributed to the separation." Id.

¶ 24. In Tackett v. Tackett , 967 So.2d 1264, 1267 (¶ 9) (Miss. Ct. App. 2007), we found no error in the chancellor's award of separate maintenance to the wife, Kim. This Court reiterated that a "wife need not be totally blameless, and an award of separate maintenance may still be appropriate so long as the wife's conduct did not materially contribute to the separation." Id. In Tackett , Kim admitted that "she was partly to blame for the couple's separation[,] but [she] maintained that [her husband] Tim was more at fault because he left" the marriage. Id. at (¶ 10). This Court reviewed the trial testimony from both parties, which reflected that both money and a lack of a sexual relationship contributed to the separation. Id. This Court also acknowledged Tim's testimony that he and Kim mostly argued about Kim's excessive spending, but the Court found that Tim failed to provide evidence to support this claim. Id. The record also showed that Tim refused Kim's suggestion to attend marriage counseling. Id. This Court ultimately held that after reviewing the record, "we cannot say that the trial court manifestly erred in finding that Kim did not substantially contribute to the separation, or that such a decision is not supported by substantial evidence." Id.

¶ 25. In the case before us, the chancellor's amended order sets forth her finding that Kellie "is without material fault in the separation and ... [Rickey] abandoned [Kellie] and has refused to provide any support. Therefore, [Kellie] has met the burden of proof necessary to support her claim for separate maintenance." The record reflects that at trial the chancellor heard testimony from Kellie, Rickey, Penny, and Rickey's brother, Roger. Kellie testified that she and Rickey got married in November 1979 and separated in October 2015, after thirty-six years of marriage. Kellie stated that she would characterize the last five years of her marriage as "okay," explaining that although they "might not have had the happiest marriage," they were "content." Kellie admitted that, although she and Rickey had a lot of problems in their marriage, she ultimately believed "that marriage is for better and worse, until death do us part." Kellie testified that she and Rickey met in April 2016 to discuss whether they should reconcile or seek a divorce. Kellie stated that Rickey informed her that "he would think about what we discussed," but she "never heard from him."

¶ 26. Kellie testified that during the last year of their marriage, Rickey began drinking alcohol excessively. Kellie admitted that Rickey's drinking did not affect his performance at work, but she explained that most of his drinking occurred on the weekends or on his days off. Kellie also testified that she discovered bills for a credit card and a loan. Kellie explained that she was not previously aware that Rickey had taken out a loan or obtained a new credit card before her discovery of these documents.

¶ 27. Regarding physical affection, Kellie testified that she was affectionate with Rickey and often hugged and patted him. However, Kellie testified that she and Rickey had not engaged in a sexual relationship since early 2015 and that they slept in separate bedrooms. Kellie stated that when she broached the subject with Rickey, he informed her that his medication prevented him from having an erection. Kellie testified that she attended one of Rickey's doctor's appointments where he explained the issue to the doctor, and the doctor responded that Rickey had to choose between "either tak[ing] some medicine to keep him alive or hav[ing] sexual intercourse." Kellie admitted that she did not know if Rickey was still taking the medicine.

¶ 28. Roger characterized Rickey and Kellie's marriage as "not happy." Roger testified that he never observed Kellie expressing affection towards Rickey. Roger also testified that Rickey was unfaithful to Kellie on a separate occasion earlier in their marriage.

¶ 29. Rickey opined that his and Kellie's marriage was not salvageable. Rickey testified that he and Kellie had not been physically affectionate over the last five years of their marriage, stating, "Every time I went to kiss her, she would turn her cheek on me." Rickey testified that Kellie asked him to give up alcohol but he refused, explaining "I didn't want to give up the beer."

¶ 30. Rickey testified that when he left the marital home, he "wasn't interested in another woman," and he did not leave "because of another woman." Rickey maintained that he was not romantically involved with Penny prior to his and Kellie's separation in October 2015, and he testified that he did not begin dating Penny until after he had moved out of the marital home. He admitted that he and Penny worked together for years, and that they had talked on the phone for "one or two years" prior to his and Kellie's separation. Rickey stated that he did not have sexual relations with Penny until after he moved in with her. Penny also testified and confirmed that she and Rickey did not become romantic until December of 2015.

¶ 31. After reviewing the testimony at trial, we find that the record contains substantial credible evidence supporting the chancellor's finding that Kellie did not materially contribute to the separation. We therefore affirm the chancellor's judgment. Knighten , 71 So.3d at 1209 (¶ 5).

¶ 32. AFFIRMED.

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

      We will discuss this testimony at length later in this opinion.

      Cf. Daley v. Daley , 909 So.2d 106, 107 (¶ 8) (Miss. Ct. App. 2005). In Daley , the record failed to contain a transcript of the proceedings before the chancellor or any factual or legal foundation for the chancellor's decision below. Id. This Court acknowledged that Uniform Chancery Court Rules 4.01 and 4.02 provide that the chancellor can "create either an oral or a written record at his discretion," but "if the chancellor opts for an oral opinion, it must be transcribed for the record." Id. at 107-08 (¶ 9). This Court then remanded the case back to the chancellor with instructions for the chancellor to create a record of his factual findings and conclusions of law. Id. at 108 (¶ 10).

      In his appellate brief, Rickey does not attack the amount of separate maintenance the chancellor awarded Kellie; rather, Rickey argues that because Kellie materially contributed to the separation, the chancellor improperly awarded her separate maintenance. Since Rickey does not attack the amount of the separate maintenance award, we will refrain from addressing the six factors listed in Williams v. Williams , 224 So.3d 1282, 1285 (¶ 9) (Miss. Ct. App. 2017), that the chancellor must consider when determining the amount of separate maintenance to award.

      In Jackson , this Court also stated that the wife "bore the burden to establish in the record a present willingness to reconcile and to show that she had not engaged in significant marital misconduct contributing to the separation." Jackson , 114 So.3d at 776 (¶ 20).