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

text:
    Matthew Edward PIERCE a/k/a Matthew Pierce a/k/a Matthew E. Pierce, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00700-COA
    Court of Appeals of Mississippi.
    January 30, 2018 Rehearing Denied May 29, 2018 Certiorari Denied August 9, 2018
    ATTORNEYS FOR APPELLANT: ROBERT B. MCDUFFJACOB WAYNE HOWARD
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. Matthew Edward Pierce was convicted of photographing, taping, or filming a person in violation of an expectation of privacy pursuant to Mississippi Code Annotated section 97-29-63 (Rev. 2014) and sentenced to a term of five years in the custody of the Mississippi Department of Corrections, with three years suspended, leaving two years of incarceration, and three years of supervised probation. Pierce was required to register as a sex offender. He now appeals. Because we find reversible error, we reverse and remand.

FACTS

¶ 2. S.A. first began seeing Pierce, a licensed massage therapist, when he worked for a chiropractor in Long Beach, Mississippi. When Pierce opened his own practice, S.A. followed him. S.A. was a client of Pierce's for a total of two and a half years.

¶ 3. On October 2, 2014, S.A. attended a scheduled appointment with Pierce. When she arrived at the venue for her appointment, Pierce left the room, and S.A. undressed from the waist up, as she normally did for her massage appointments. Pierce returned and performed S.A.'s massage. Upon completion of the massage, Pierce again left the room to give S.A. privacy to re-dress. As S.A. was dressing, she noticed that Pierce's iPhone was propped up against the backsplash of a counter opposite the table where the massage had taken place. The phone's camera was facing where she was standing and getting re-dressed. Concerned that Pierce might have been videotaping her while she undressed or re-dressed, S.A. picked up the phone and saw that it had indeed been videotaping. S.A. stopped the videotaping and sent the video to herself in a text message. When Pierce returned to the room, S.A. confronted him about the video. Pierce denied that he had intended to film her. S.A. reported the incident to Detective Brad Gross with the Long Beach Police Department, and Pierce was subsequently arrested on October 3, 2014.

¶ 4. On January 20, 2015, a grand jury of the First Judicial District of Harrison County indicted Pierce for secretly videotaping S.A in violation of section 97-29-63. Pierce's trial was held in Harrison County Circuit Court on April 5 and 6, 2016. Three witnesses testified: S.A., Detective Gross, and Pierce. Prior to opening statements, the State orally moved "to either close the courtroom to the general public during the victim's testimony or in the alternative, when we do play the video to at least turn the TV away from the general audience," because the video depicted S.A. while she was undressed. The State maintained that a surprisingly large number of people had shown up to watch the trial who had not been present at previous proceedings, and that it wished to "limit the number of people that actually see this video and see her naked." The defense objected. The trial court granted the State's motion and closed the courtroom for the entirety of S.A.'s testimony, noting that over thirty people had shown up for the trial who had not been present at previous proceedings, and that the majority of the audience was sitting on the defense's side of the courtroom.

¶ 5. After all three of the witnesses testified, the trial court issued its jury instructions. Pierce proposed Instruction D-2a, which provided the following:

The [c]ourt instructs the jury that if you find that the cell-phone video was created as the result of accident and without unlawful intent, then you shall find the Defendant, Matthew Pierce, Not Guilty of Secretly Photographing, Taping, or Filming [S.A.], in a state of undress, without her permission and in violation of her expectation of privacy as charged in the indictment, and return your verdict as follows: "We, the Jury, find the Defendant, Matthew Pierce, Not guilty of Secretly Photographing, Taping, or Filming a person, in a state of undress, without her permission in violation of her expectation of privacy as charged in the indictment, by reason of accident.

The State objected and the trial court denied the instruction, finding that the instruction did not properly state the charge, nor did it properly state the form of the verdict. Further, the trial judge stated, "I'm not aware that accident is a defense, per se, ... to this type of charge"; however, the court provided: "If you guys can find [an instruction] that has to do with accidents specific to this type [of] charge, then I'm more than happy to consider it." Further, the court held that the exclusion of the defense's proposed instruction did not prohibit defense counsel "from arguing that there was no intent because that is in the elements instruction."

¶ 6. The jury began its deliberations, and soon after sent a note (1) requesting the definition of "lewd, licentious or indecent intent"; (2) asking, "If S.A. saw camera [sic] does that change 'expectation of privacy'[?]"; and (3) asking, "If it was by accident[,] is it same thing same [sic] as knowing or is it lewd, licentious or indecent intent[?]" No further instruction was given to the jury. The jury next sent a note stating that it was deadlocked. After further deliberation, the jury finally found Pierce guilty of the charge against him.

¶ 7. Pierce filed a motion for a new trial or a judgment notwithstanding the verdict (JNOV), which the trial court denied, leading to this appeal.

DISCUSSION

1. Whether the trial court erred in closing the courtroom during the victim's testimony

¶ 8. The Sixth Amendment to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution both provide the accused in a criminal prosecution the right to a public trial. "However, that right is not absolute, but instead must be balanced against other interests essential to the administration of justice." Tillman v. State , 947 So.2d 993, 995 (¶ 7) (Miss. Ct. App. 2006). The Mississippi Constitution explicitly authorizes the exclusion of the public in certain instances, including "prosecutions for rape, adultery, fornication, sodomy, or crimes against nature." Miss. Const. art. 3, § 26. The United States Supreme Court in Waller v. Georgia , 467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), established a test for determining whether a defendant's right to a public trial is outweighed by other considerations, holding:

[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

The Mississippi Supreme Court adopted the " Waller test" in Gannett River States Publishing Co. v. Hand , 571 So.2d 941, 945 (Miss. 1990).

¶ 9. Pierce argues that the trial court's remedy of closing the courtroom to the public during S.A.'s entire testimony was broader than necessary in light of the fact that it could have just turned the television away from the general audience. Pierce maintains that closing the courtroom to the public resulted in a violation of Pierce's right to a public trial under both the Federal and State Constitutions.

¶ 10. In response, the State maintains that the trial court did not err in excluding the public because it properly considered the requisite factors prior to deciding to close the courtroom, and that Pierce's right to a public trial was therefore not violated. Further, embracing the trial judge's observations, the State maintains that there was no more appropriate remedy to be taken than to close the courtroom to the public during her entire testimony. The court noted that the layout of the courtroom prevented turning the television to only show the jury, and to exclude the public upon offering the video into evidence would result in abruptly halting S.A.'s testimony to allow for a "mass exodus," thereby drawing attention to S.A.'s upcoming testimony and to the video. The State cites Tillman , 947 So.2d at 996 (¶ 10), in which this Court allowed the exclusion of the public where the crime at issue was not one specifically enumerated in Article 3, Section 26 of the Mississippi Constitution, but was a crime "of the type for which the provision was designed." The State presents the proposition from Tillman that "public exclusion may be appropriate to the extent necessary to avoid embarrassment or emotional disturbance to a witness which might result from that witness giving testimony in a particular case." Id. at 996 (¶ 10) (quoting Lee v. State , 529 So.2d 181, 183 (Miss. 1988) ).

¶ 11. We understand that this case involves a sensitive topic, and we do not make light of the fact that the incident caused S.A. some embarrassment, which she had to continue to endure throughout the trial. However, a defendant is constitutionally entitled to a public trial for whatever heinous act of which he may be accused. Therefore, the courts must perform a sensitive balance in protecting a victim from unnecessary embarrassment while, at the same time, complying with a defendant's right to a public trial. Here, we find that the trial court, in executing that balance, erred in excluding the public during S.A.'s entire testimony. S.A.'s testimony was relatively lengthy in comparison to the other witnesses who testified during the trial. The only reason offered by the prosecution and cited by the trial court for closing the courtroom to the public was that the video would be shown during S.A.'s testimony, showing her undressed from the waist up. The video lasted only one minute and fourteen seconds. We fail to see why it was necessary to exclude the public for S.A.'s entire testimony, merely to show a video lasting a little over one minute.

¶ 12. In any event, accepting the court's statement as accurate-as we must-that it was not feasible to turn the television screen away from the general public, we see no logical reason why the closing of the courtroom could not have been delayed until the conclusion of all of the testimonies of witnesses offered by the State and the video shown to the jury just before the State rested its case. The video speaks for itself, and there was no rational reason or need to show it at the time of S.A.'s testimony. Her testimony was not needed to explain anything on the video. Normally, a break generally occurs at the conclusion of the State's case so that the court can entertain motions outside the presence of the jury. So it would have been an orderly procedure to close the courtroom-and allow the jury to view the video-before sending them to the jury room to allow the court to consider whatever motions may have been offered by the defense. Closing the courtroom at that time to show the video would have prevented the disruptive "mass exodus" during S.A.'s testimony about which the court was concerned, but, at the same time, would have allowed Pierce to have a fully public trial to which he was constitutionally entitled. Adopting this procedure also would have served the interest of not subjecting S.A. to unnecessary embarrassment or emotional disturbance by not allowing the public to view the video. However, the court's decision to close the courtroom during S.A.'s entire testimony was overly broad and violative of Pierce's constitutional right to a public trial. While "most constitutional errors can be harmless," certain errors will be deemed " 'structural' and thus subject to automatic reversal." Neder v. United States , 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). One such constitutional error is the denial of a public trial. Id. (citing Waller , 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 ). As such, we reverse and remand.

¶ 13. The dissent takes issue with our holding as it relates to the closing of the courtroom and relies on Tillman to support its argument that the trial court was justified in excluding the public from the entirety of S.A.'s testimony. However, there are two notable distinctions between Tillman and this case. First, the victim in Tillman was a teenager at the time that she testified. While the record in this case makes no mention of S.A.'s age, there is no evidence to suggest that she was not an adult at the time that the incident occurred. Second, the victim in Tillman testified to "acts of sexual penetration, more specifically, oral sex and digital penetration, as well as acts of fondling." Tillman , 947 So.2d at 995 (¶ 9). Again, without diminishing the severity of the defendant's alleged intrusion upon S.A.'s privacy, the current case differs from Tillman. While the crimes in Tillman did not fall within the category enumerated in Article 3, Section 26, this Court found that, given the nature and substance of the minor's allegations, they were of the type that this provision was designed to address. S.A.'s testimony, describing what occurred as a result of her encounter with Pierce, shares no parallel with the testimony of the minor victim in Tillman , describing her encounter with the defendant there.

¶ 14. Finally, the dissent maintains that this issue is improper for our consideration, because (1) Pierce never asked the trial judge to only close the courtroom during the time the video was shown, and (2) Pierce failed to offer alternatives to closing the courtroom during S.A.'s entire testimony. First, this issue is properly before us because it was preserved at trial when Pierce's counsel objected to the closing of the courtroom. Second, we are unaware of any caselaw requiring Pierce to have provided alternatives to closing the courtroom. The burden to assure that a defendant is convicted without transgressing constitutional safeguards and protections lies with the State, and more specifically the trial court, not the defendant.

¶ 15. In Presley v. Georgia , 558 U.S. 209, 214, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010), the United States Supreme Court clearly held, as a matter of federal constitutional law, that "trial courts are required to consider alternatives to closure even when they are not offered by the parties ." (Emphasis added). According to the Supreme Court, the obligation "to take every reasonable measure to accommodate public attendance at criminal trials" rests on the trial court, not the parties. Id. at 215, 130 S.Ct. 721. To this extent, United States Supreme Court precedent preempts our normal rule that an issue is waived if it is not presented to the trial court for decision. See post at (¶ 30) (dissenting op.).

¶ 16. The United States Supreme Court has also held, as a matter of federal constitutional law, that a violation of the right to a public trial is "a structural error, i.e. , an error entitling the defendant to automatic reversal without any inquiry into prejudice." Weaver v. Massachusetts , --- U.S. ----, 137 S.Ct. 1899, 1905, 198 L.Ed.2d 420 (2017). In Presley , the Supreme Court held that it was reversible error to exclude the "lone courtroom observer," the defendant's uncle, from jury voir dire-even though the courtroom was not closed during any part of the presentation of evidence. See Presley , 558 U.S. at 210, 216, 130 S.Ct. 721.

¶ 17. "[T]his Court is under authority of the United States Supreme Court.... [A] decision of the United States Supreme Court ... is binding on the tribunals and citizens of the respective states in comparable cases." Bolton v. City of Greenville , 253 Miss. 656, 666, 178 So.2d 667, 672 (1965).

¶ 18. Applying these decisions of the United States Supreme Court requires this Court to reverse and remand this case for a new trial. On remand, the court may close the courtroom to the public but only while the video at issue is being played, as there is nothing about the content of S.A.'s testimony that warrants the closing of the courtroom during her testimony. Notwithstanding what we have said earlier concerning when the courtroom could have been closed, we want to be clear that nothing contained in this opinion shall be interpreted as dictating the timing of the closing of the courtroom, except as to when the video is played.

2. Whether the trial court erred in denying the defense's jury instruction

¶ 19. "Jury instructions are within the discretion of the trial court[,] and the settled standard of review is abuse of discretion." Watkins v. State , 101 So.3d 628, 633 (¶ 16) (Miss. 2012) (citation omitted). When reviewing a challenge to jury instructions, this Court will read the instructions that were given as a whole to determine whether the instructions fairly announced the law and did not create an injustice against the defendant. Crook v. State , 105 So.3d 353, 358 (¶ 13) (Miss. Ct. App. 2012).

¶ 20. Pierce argues that the trial court erred when it denied his proposed jury instruction informing jurors that they must acquit him if they concluded that his actions were accidental. He maintains that this instruction was put forward as part of his defense theory. In support of his argument, Pierce asserts that the Mississippi Supreme Court has consistently reversed convictions in which the trial court declined to give an accident instruction when accident was the theory of the defense, citing Brown v. State , 39 So.3d 890, 900 (¶ 38) (Miss. 2010) ; Chinn v. State , 958 So.2d 1223, 1226-27 (¶¶ 17-18) (Miss. 2007) ; and Triplett v. State , 666 So.2d 1356, 1361-62 (Miss. 1995). Pierce points out that, although most cases regarding accident involve homicide, this Court has also held that the principle applies to non-homicide cases. See McTiller v. State , 113 So.3d 1284, 1291 (¶ 19) (Miss. Ct. App. 2013) (where this Court reversed a circuit court on the basis that it did not properly instruct the jury on accident in an aggravated-assault case). In response, the State maintains that the instructions given fairly informed jurors that, in order to convict Pierce, they had to find that he acted "with lewd, licentious or indecent intent" when he "secretly photograph[ed], film[ed], videotape[d], record[ed] or otherwise reproduce[d] the image of [S.A.]" without her permission, when she "was located in a place where a person would intend to be in a state of undress and have a reasonable expectation of privacy."

¶ 21. We agree with Pierce and find pursuant to a long line of Mississippi cases holding that defendants are entitled to jury instructions on their theory of defense-some of which are cited by Pierce and discussed earlier-that the trial court erred in denying his proposed jury instruction regarding accident. As noted, the State argues that the circuit court did not err in refusing to give Pierce's accident instruction because, given the wording of the element instruction, the jury had to find that Pierce acted "with lewd, licentious or indecent intent." An extrapolation from this argument is that the jury was properly instructed because subsumed in its guilty verdict is a finding that Pierce did not accidentally turn on the video-recording mechanism. However, the fallacy of this argument is that a reasonable finding by the jury with respect to one option given does not prove that another option should not have been given, even if it ultimately would have been rejected by the jury. In other words, the fact that the jury was given an element instruction does not prove that an accident instruction should not have been given. Whether the court properly refused an instruction is determined by an examination of the facts and the instructions that were given, in accordance with existing precedent, not by an interpretation of the jury's implicit finding as a result of an instruction that was given. Here, the sole theory of Pierce's defense was that the videotaping had occurred by accident, as he testified that he had brought the phone into the room to keep time and must have accidently turned it on while he had oil on his fingers. As such, we find that Pierce was entitled to an accident instruction. In light of our caselaw, the trial court's exclusion of such an instruction constitutes reversible error. Thus, for both of the foregoing reasons, we reverse the circuit court's judgment and remand the case for further proceedings consistent with this opinion.

¶ 22. REVERSED AND REMANDED.

FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. LEE, C.J., AND WILSON, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES, CARLTON AND TINDELL, JJ.

BARNES, CARLTON AND TINDELL, JJ., JOIN THIS OPINION.

GRIFFIS, P.J., DISSENTING:

¶ 23. I respectfully dissent.

¶ 24. This case considers the compelling interest of the victim's right of privacy versus the defendant's right to a public trial. Pierce was charged with photographing, taping, or filming S.A. in violation of her privacy pursuant to Mississippi Code Annotated section 97-29-63(1)(a) (Rev. 2014). The evidence offered to prove this crime was the recording that depicted S.A. "in a state of undress." This is a sex-crime case. As such, the courts of this state attempt to protect the victim from public embarrassment and humiliation.

¶ 25. As to the majority's recitation of the facts, I note that the majority fails to mention that the video shows Pierce setting up the phone camera just before he exited the room. There was clear evidence to show intent and that it was not an accident.

¶ 26. Next, I do not dispute the majority's legal authority. However, I come to a different conclusion. In Tillman , this Court cited the same legal authority and ruled:

Here, the trial court noted that the allegations involved acts of sexual penetration, more specifically, oral sex and digital penetration, as well as acts of fondling that occurred over a period of time. The court also recognized the sensitive nature of the testimony and the emotional state of J.T. due to the sexual abuse. Therefore, based on Article 3, Section 26, the facts of the case, the age of the child, and the family dynamics (the families of J.T. and Tillman were intertwined as members of the families were related to both J.T. and Tillman), the court found it appropriate to close the courtroom to everyone except necessary court personnel during J.T.'s testimony. The court ruled that Tillman, his attorney, and necessary court personnel would be allowed to be present during J.T.'s testimony. Everyone else was required to vacate the courtroom but were allowed to return at the conclusion of J.T.'s testimony. We note that J.T. was the first witness called to testify and that the public was allowed to be present in the courtroom for the remainder of the trial.
We find that the trial court's actions were sufficient to pass the Waller test. Additionally, Article 3, Section 26 of the Mississippi Constitution gives a judge discretion to close a trial to the public in certain instances. We recognize that the crimes Tillman was charged with committing do not fall within the category of crimes enumerated in Article 3, Section 26. However, given the nature and substance of J.T.'s allegations, we note that her allegations are of the type contemplated by this provision and are of the type for which this provision was designed. Furthermore, the Mississippi Supreme Court has held that "public exclusion may be appropriate to the extent necessary to avoid embarrassment or emotional disturbance to a witness which might result from that witness giving testimony in a particular case." Lee [v. State ], 529 So.2d [181,] 183 [ (Miss. 1980) ]. This case, which required a teenage girl to testify to potentially embarrassing or emotionally disturbing facts of a very sensitive and personal nature, clearly falls within the category of instances in which public exclusion is appropriate. This issue is without merit.

Tillman v. State , 947 So.2d 993, 995-96 (¶¶ 9-10) (Miss. Ct. App. 2006).

¶ 27. Further, Mississippi Rule of Evidence 611(3) gives the circuit judge the authority and discretion to "exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to ... protect witnesses from harassment or undue embarrassment."

¶ 28. Here, the public viewing of a young female victim's naked breasts is a "potentially embarrassing or emotionally disturbing fact[ ] of a very sensitive and personal nature." Tillman , 947 So.2d at 996 (¶ 10). Likewise, it "falls within the category of instances in which public exclusion is appropriate." Id.

¶ 29. I also cannot agree with Pierce's argument that the trial court's decision to close the courtroom to the public during S.A.'s entire testimony was broader than necessary in light of the fact that the trial court could have just turned the television away from the general audience. Based on my review of the transcript, Pierce's counsel never suggested that it would be an acceptable alternative to "turn the television away from the general audience." The State offered this alternative, and the trial court determined it was not feasible. Despite the fact that the majority concludes that a reasonable alternative would have been to allow the video to be shown at the end of S.A.'s testimony, this alternative was not presented to the trial court. Nevertheless, the trial court used its discretion to exercise reasonable control over the interrogation in a way that would prevent S.A. from suffering undue embarrassment.

M.R.E. 611(a). There is nothing in the record that would indicate that the trial court was in error in the decision that this alternative was not feasible.

¶ 30. In fact, Pierce's counsel did not offer alternatives. Instead, Pierce's counsel argued that the audience was entitled to see the video and that it was "important that [the video] is seen by whoever." Pierce's counsel did not ask the trial judge to only close the courtroom during the time the video was shown. Accordingly, I do not believe that Pierce placed this matter before the trial judge for a decision. "We will not hold a trial court in error on appeal for a matter not presented to it for decision." Moffett v. State , 49 So.3d 1073, 1101 (¶ 91) (Miss. 2010). Since Pierce's counsel did not offer an acceptable alternative, I cannot find the trial court in error on this issue. It is certainly not reversible error.

¶ 31. I recognize the United States Supreme Court's ruling in Presley v. Georgia , 558 U.S. 209, 214, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010), that "trial courts are required to consider alternatives to closure even when they are not offered by the parties ." (Emphasis added). According to the circuit judge, she did just that. She considered reasonable alternatives and rejected them. The mere fact that new appellate counsel and the judges of this Court can come up with additional "reasonable alternatives" does not result in reversible error by the trial judge. I am of the opinion that the trial judge complied with the requirements of Presley .

¶ 32. Because I would affirm the circuit court's judgment, I respectfully dissent.

      The victim's initials will be used throughout this opinion to protect her privacy.

      Section 97-29-63(1)(a) (Rev. 2014) provides:
      It is a felony for any person with lewd, licentious or indecent intent to photograph, film, videotape, record or otherwise reproduces the image of another person without the permission of the other person when the other person is located in a place where a person would intend to be in a state of undress and have a reasonable expectation of privacy, including, but not limited to, private dwellings or any facility, public or private, used as a restroom, bathroom, shower room, tanning booth, locker room, fitting room, dressing room or bedroom shall be guilty of a felony.


source: Caselaw Access Project

author: TINDELL, J., FOR THE COURT:

license: Public Domain

text:
    Ramona BAKER, Appellant v. Nakia BAKER, Appellee
    NO. 2016-CA-00522-COA
    Court of Appeals of Mississippi.
    June 19, 2018
    ATTORNEY FOR APPELLANT: BRANDON ISAAC DORSEY
    ATTORNEY FOR APPELLEE: WILLIAM R. STRIEBECK, GREENVILLE
    BEFORE IRVING, P.J., WILSON AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. The Washington County Chancery Court granted Nakia and Ramona Baker an irreconcilable-differences divorce. On appeal, Ramona challenges the chancellor's distribution of the marital estate and refusal to award periodic alimony. Finding no abuse of discretion, we affirm the chancellor's judgment.

FACTS

¶ 2. The parties married on December 26, 1998. They bought a house on Billings Street (the Billings Street home), and in December 2003, they welcomed a daughter. During a separation in 2008, Ramona testified that she moved into a separate residence. Ramona stated that she subsequently sold that home for a profit, which she used as a down payment to buy a lot on Princeton Street. In 2010, the parties built a second marital home (the Princeton Street home) on the lot.

¶ 3. On August 29, 2012, Ramona filed a divorce complaint on the grounds of adultery and cruel and inhuman treatment or, alternatively, irreconcilable differences. On November 20, 2012, the Washington County County Court issued a "Final Mutual Protective Order" to the parties after finding they had been involved in multiple domestic-violence disputes and "that[,] on multiple occasions[,] both parties were the principal aggressors[,] and neither party acted in self-defense." The county court gave Nakia temporary use of the Billings Street home and Ramona temporary use of the Princeton Street home. The county court also awarded Ramona temporary custody of the parties' daughter, awarded Nakia temporary visitation, and ordered Nakia to pay temporary child support. On May 27, 2014, Nakia answered Ramona's divorce complaint, asserted his affirmative defenses, and filed a counterclaim for divorce.

¶ 4. At the start of their divorce hearing on September 30, 2014, the parties withdrew their fault-based grounds and consented to an irreconcilable-differences divorce. The parties also announced their agreement on the following issues: (1) shared legal custody of their daughter; (2) sole physical custody to Ramona with reasonable visitation rights to Nakia; (3) continued child-support payments by Nakia at fourteen percent of his monthly adjusted gross income; (4) exclusive ownership of the Billings Street home and sole responsibility for the related mortgage payments to Nakia; and (5) exclusive ownership of the Princeton Street home and sole responsibility for the related mortgage payments to Ramona. The only remaining issues the parties submitted for the chancellor's determination were the distribution of their marital estate and Ramona's periodic-alimony request.

¶ 5. On March 4, 2016, the chancellor entered a judgment granting the parties an irreconcilable-differences divorce. The chancellor determined the date of valuation for the parties' marital assets was November 20, 2012, the entry date of the county court's protective order. After considering the Ferguson factors, the chancellor awarded Ramona the following marital assets valued at $110,600: the equity in the Princeton Street home ($85,000), the home's furnishings and appliances ($20,000), and Ramona's Toyota 4Runner ($5,600). The chancellor awarded Nakia the following marital assets valued at $110,660: the equity in the Billings Street home ($23,000), the home's furnishings and appliances ($4,000), Nakia's 1999 Chevrolet truck ($4,430) and 2006 Chevrolet Corvette ($23,000), and his retirement account ($56,230). The chancellor ordered the parties to be responsible for any debt associated with their assigned marital assets. The chancellor also found that the equitable distribution of the marital estate eliminated the need for an alimony award. Aggrieved by the chancellor's distribution of the marital estate and refusal to award periodic alimony, Ramona appeals.

STANDARD OF REVIEW

¶ 6. This Court applies a limited standard of review to a chancellor's division and distribution of marital property. Sims v. Sims , 169 So.3d 937, 940 (¶ 10) (Miss. Ct. App. 2014). We will affirm the chancellor's distribution of marital assets "as long as 'it is supported by substantial credible evidence.' " Id. (quoting Bowen v. Bowen , 982 So.2d 385, 394 (¶ 32) (Miss. 2008) ). We also decline to reverse the chancellor's determination regarding an award of alimony absent manifest error or an abuse of discretion. Id. However, we review questions of law de novo. Williams v. Williams , 224 So.3d 1282, 1284 (¶ 5) (Miss. Ct. App. 2017).

DISCUSSION

I. Equitable Distribution

¶ 7. "When dividing marital property, chancellors are directed to (1) classify the parties' assets as marital or separate; (2) determine the value of those assets; (3) divide the marital estate equitably based upon the factors set forth in Ferguson ; and (4) consider the appropriateness of alimony if either party is left with a deficiency." Ewing v. Ewing , 203 So.3d 707, 711-12 (¶ 11) (Miss. Ct. App. 2016) (internal quotation marks omitted). "[F]airness is the prevailing guideline in marital division." Ferguson , 639 So.2d at 929.

¶ 8. Ramona asserts no challenge to the chancellor's classification and valuation of the parties' marital assets. In fact, Ramona acknowledges the chancellor evenly divided the parties' marital assets by awarding Ramona assets worth $110,600 and Nakia assets worth $110,660. However, Ramona challenges the chancellor's analysis of the Ferguson factors and her refusal to award periodic alimony. According to Ramona, the chancellor abused her discretion by "assigning [Ramona] a substantial portion of the marital debt" and insufficient marital assets to cover that debt. Ramona further argues the chancellor failed to consider her lack of income-earning capacity when distributing the marital estate.

¶ 9. As discussed, following classification and valuation, a chancellor must equitably divide the parties' marital property based on the Ferguson factors. Ewing , 203 So.3d at 713 (¶ 17). These factors include the following:

(1) Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows: (a) direct or indirect economic contribution to the acquisition of the property; (b) contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties[,] and duration of the marriage; and (c) contribution to the education, training, or other accomplishment bearing on the earning power of the spouse accumulating the assets;
(2) The degree to which each spouse has expended, withdrawn, or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree, or otherwise;
(3) The market value and the emotional value of the assets subject to distribution;
(4) The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
(5) Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
(6) The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
(7) The needs of the parties for financial security with due regard to the combination of assets, income, and earning capacity; and
(8) Any other factor which in equity should be considered.

Id. (quoting Ferguson , 639 So.2d at 928 ).

¶ 10. In considering the Ferguson factors, the chancellor determined that the parties possessed no assets apart from their marital property. While the chancellor acknowledged both parties' contributions to the accumulation of marital property, she concluded that Nakia's contributions were greater. With regard to expenditures, withdrawals, or dissipation of marital assets, the chancellor noted Nakia's claim that Ramona transferred $24,370 from their joint checking account. During cross-examination, Ramona stated she was unsure of the exact amount she transferred, but she admitted "it was a significant amount of money." In addition, the chancellor noted that, on another occasion, Ramona transferred $2,900 from an account titled only in Nakia's name to her own account.

¶ 11. As to the remaining Ferguson factors, the chancellor found the parties offered no testimony about the emotional value of any assets and provided no proof about the proposed distribution's tax consequences or legal consequences to third parties. The chancellor also found no credible testimony was offered as to the needs of each spouse. Ramona testified that she became disabled in 2005 from emotional distress caused by an injury to the parties' daughter in 2004. Even though she never received a diagnosis for her claimed illness, Ramona stopped working in 2005 and began receiving Social Security disability benefits. Although she "could not see any signs of [Ramona's] disability," the chancellor acknowledged Nakia's corroborating testimony about the onset of Ramona's illness in 2005.

¶ 12. While the chancellor found that Ramona's illness hampered her earning potential, the chancellor also noted that Ramona received $2,712.20 a month in disability benefits for herself and the parties' daughter and would "continue to receive this amount plus any [cost-of-living allowance] benefits associated with her [Public Employees' Retirement System (PERS) ] account annually." The chancellor found that the PERS cost-of-living allowance benefits for 2015 amounted to $2,000 a year, which broke down to $166.67 a month. In concluding her Ferguson analysis, the chancellor determined that the division of the parties' marital property would eliminate the need for alimony. The chancellor therefore distributed the marital property and refused Ramona's periodic-alimony request.

¶ 13. "In reviewing a chancellor's judgment, this Court does not conduct a Ferguson analysis anew, but [we] review[ ] the judgment to ensure that the chancellor followed the appropriate standards and did not abuse his discretion." Phillips v. Phillips , 904 So.2d 999, 1001 (¶ 8) (Miss. 2004). The record here reflects the chancellor properly analyzed all the Ferguson factors and then equitably divided the marital estate. Because the record contains substantial credible evidence to support the chancellor's division and distribution of the marital estate, we find no abuse of discretion. See Sims , 169 So.3d at 940 (¶ 10). Accordingly, this assignment of error lacks merit.

II. Alimony

¶ 14. Ramona also challenges the chancellor's refusal to award periodic alimony. The Mississippi Supreme Court has long acknowledged that equitable distribution and alimony are intertwined and should be considered together to prevent inequity. Ferguson , 639 So.2d at 929. However, a chancellor should only consider a periodic-alimony award where he or she "determines that a spouse has suffered a disparity of income and standard of living following the equitable division of the marital assets." Ewing , 203 So.3d at 715 (¶ 26) (quoting George v. George , 22 So.3d 424, 428 (¶ 6) (Miss. Ct. App. 2009) ).

¶ 15. Following the equitable distribution of Ramona and Nakia's marital estate, the chancellor determined that sufficient assets existed to adequately provide for both parties and that Ramona suffered no deficit. The chancellor therefore denied Ramona's alimony request. In reaching this determination, the chancellor found Nakia's monthly adjusted gross income amounted to $3,240.26 and that Ramona's monthly disposable income amounted to slightly more at $3,332.51. As previously discussed, the chancellor found that Ramona received: (1) $2,712.20 a month in disability benefits for herself and the parties' daughter, and (2) a cost-of-living allowance benefit from her PERS account, which amounted to $166.67 a month in 2015. In addition, pursuant to the chancellor's divorce judgment, Ramona received $453.64 a month in child support. Because substantial credible evidence supports the chancellor's findings on this issue, we conclude no abuse of discretion occurred from the denial of Ramona's periodic-alimony request. We therefore find this assignment of error lacks merit.

CONCLUSION

¶ 16. Because substantial credible evidence supports the chancellor's determination, we find no abuse of discretion. We therefore affirm the chancellor's judgment.

¶ 17. AFFIRMED.

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

      See Miss. Code Ann. § 43-19-101(1) (Rev. 2015) (providing guidelines for the calculation of child-support payments).

      Since the time of the county court's November 2012 protective order almost two years earlier, Nakia had solely resided in and paid the mortgage on the Billings Street home, and Ramona had solely resided in and paid the mortgage on the Princeton Street home.

      Ferguson v. Ferguson , 639 So.2d 921, 928 (Miss. 1994).


author: LEE, C.J., FOR THE COURT: TINDELL, J., CONCURRING IN PART AND DISSENTING IN PART:

text:
    GECKO OUTDOOR PRODUCTS CORPORATION, Christopher N. Gardner and Mainstream Fab Inc., Appellants v. CASABLANCA CONSTRUCTION INC., Appellee
    NO. 2017-CA-00308-COA
    Court of Appeals of Mississippi.
    June 26, 2018
    JEFFREY BRADEN ARNOLD, Flowood, for Appellants
    CAREY R. VARNADO, ROBIN E. BLACKLEDGE BLAIR, Hattiesburg, for Appellee
    EN BANC.
   LEE, C.J., FOR THE COURT:

¶ 1. This case involved a subcontract between a contractor, Casablanca Construction Inc., and a subcontractor, Panhandle Metal Fabrication Inc. The contractor sued Gecko Outdoor Products Corp. and Mainstream Fab Inc. as successors-in-interest to Panhandle as well as Christopher Gardner, individually. Gardner was the owner and/or operator of all three companies. The trial court determined that the company remained the same regardless of the name changes; thus, the most recent iteration of the company (Mainstream Fab) was liable to Casablanca, as a successor corporation, for breach of contract. Additionally, the trial court pierced the corporate veil and found Gardner individually liable. The trial court awarded Casablanca $393,954.58 in damages.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2012, Casablanca was hired as the general contractor on the Rodenberg Avenue Beach Comfort Station Project in Biloxi, Mississippi. The anticipated completion date was August 2013. On April 27, 2012, Casablanca entered into a subcontract with Panhandle. The contract was signed by Tabby Waters as president of Panhandle and witnessed by Gardner. According to the terms of the subcontract, Casablanca would pay Panhandle $122,144.12 for the fabrication and installation of metal handrails. The subcontract included a time-is-of-the-essence requirement and a liquidated-damages clause stating that Panhandle would have to reimburse Casablanca for any damages assessed by the project-owner in the event of delays or difficulties caused by Panhandle.

¶ 3. Tom Saucier, president of Casablanca, testified that he received an email from Gardner that Panhandle's name had been changed to Mainstream Fabrication Inc. (MFI), but that all other aspects remained the same. In October 2012, Gardner sent shop drawings of the handrails to Saucier. The name on the renderings said, "MFI, Mainstream Fabrication Inc." The address listed, 4007 North Pace Blvd., was the same address as Panhandle.

¶ 4. In April 2013, Saucier, the project owner, and the project's architect met with Gardner to discuss the delay in manufacturing the handrails. A letter from the architect to Saucier stated that the "meeting was arranged by Casablanca as a last resort effort in maintaining their contract with [MFI]." Shortly thereafter, Saucier sent an email to Waters at MFI inquiring as to the progress on the handrails. Waters responded that MFI was having financial difficulty and requested Casablanca pay for the materials. Waters further stated that Gardner "will be the one to coordinate with."

¶ 5. The record contains copies of emails-dated May 2, 2013 and June 3, 2013-sent between Gardner and Saucier regarding the handrails. Gardner signed these emails as vice president of MFI. Saucier testified that he then had another meeting with Gardner, who informed him that Gecko would be manufacturing and installing the handrails. Gardner told Saucier to make the checks payable to Gecko. During the summer of 2013, Saucier testified that Casablanca paid Gecko approximately $74,500 to manufacture the handrails.

¶ 6. Ultimately, Gecko failed to produce satisfactory handrails. Casablanca had to pay another company to manufacture and install the handrails. Due to the delays, Casablanca had to pay liquidated damages of $197,865.

¶ 7. Casablanca filed a breach-of-contract action against Gecko as a successor-in-interest to Panhandle. Casablanca later amended its complaint, adding Gardner and Mainstream Fab as defendants.

¶ 8. After a bench trial, the trial court ruled in favor of Casablanca, awarding it $393,954.58 in damages. The trial court noted that the judgment was against Mainstream Fab as well as Gardner, individually.

¶ 9. Gardner, Gecko, and Mainstream Fab now appeal, asserting the following issues: (1) Waters and MFI were necessary parties to the action; (2) Mainstream Fab was not the successor corporation to Panhandle; (3) the trial court erred in piercing the corporate veil and finding Gardner personally liable; and (4) the agreement between Gecko and Casablanca was invalid under the statute of frauds.

STANDARD OF REVIEW

¶ 10. "In bench trials, a [trial court's] findings are subject to the same standard of review as those of a chancellor." Transocean Enter. Inc. v. Ingalls Shipbuilding Inc. , 33 So.3d 459, 462 (¶ 7) (Miss. 2010) (quoting Univ. of Miss. Med. Ctr. v. Pounders , 970 So.2d 141, 145 (¶ 11) (Miss. 2007) ). "[W]hen a trial judge sits without a jury, this Court will not disturb his factual determinations where there is substantial evidence in the record to support those findings." Id. (quoting Ezell v. Williams , 724 So.2d 396, 397 (¶ 4) (Miss. 1998) ).

DISCUSSION

I. Necessary Parties

¶ 11. Gardner argues that the trial court erred in denying his motion to dismiss under Mississippi Rule of Civil Procedure 12(b)(7) for failure to join Waters as a party under Mississippi Rule of Civil Procedure 19(a). Rule 19(a) provides that a person who is subject to the jurisdiction of the court shall be joined as a party in the action if:

(1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject matter of the action and is so situated that the disposition in his absence may (i) ... impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.

¶ 12. Gardner claims that Waters had a direct and substantial interest in the action, mainly because she signed the contract with Casablanca on behalf of Panhandle. Gardner also claims that without Waters "valuable questions go unanswered." But, Gardner failed to specify what questions were unanswered, either during trial or in his brief. Casablanca argues that the cause of action giving rise to the lawsuit did not occur until after Waters's involvement with the project ceased. The record is unclear as to when Waters's involvement with the project ceased-presumably when Gecko was formed because Waters was never associated with Gecko. We agree with Casablanca that by the time of the breach, Waters was not involved; thus, it was not error for the trial court to deny Gardner's motion to dismiss for failure to join Waters.

II. Successor Corporation

¶ 13. Gardner argues that Mainstream Fab was not a successor to Panhandle; thus, the trial court erred in holding Mainstream Fab liable. "The general rule states that a corporation which acquires the assets, but not the stock of another corporation, is not obligated for the liabilities of the acquired corporation." Paradise Corp. v. Amerihost Dev. Inc. , 848 So.2d 177, 179 (¶ 6) (Miss. 2003). The four exceptions are "where: (1) the successor expressly or impliedly agrees to assume the liabilities of the predecessor; (2) the transaction may be considered a de facto merger; (3) the successor may be considered a 'mere continuation' of the predecessor; or (4) the transaction was fraudulent." Id. Gardner argues that none of these exceptions apply. The trial court determined that Mainstream Fab and Gecko were mere continuations of Panhandle and MFI.

¶ 14. "The traditional rule states that a corporation is not to be considered a continuation of a predecessor unless, after the transfer of assets, only one corporation remains, and there is an identity of stock, shareholders, and directors between the two corporations." Id. at 180 (¶ 12). Mere continuation can also occur when a continuity of enterprise exists. In addition to the traditional rule, the continuity-of-enterprise factors include:

(1) retention of the same employees; (2) retention of the same supervisory personnel; (3) retention of the same production facilities in the same physical location; (4) production of the same product; (5) retention of the same name; (6) continuity of assets; (7) continuity of general business operations; and (8) whether the successor holds itself out as the continuation of the previous enterprise.

Id. at (¶ 14).

¶ 15. The record contains evidence of several of these factors. Casablanca was informed that Panhandle's name had changed but all other aspects of the business relationship remained the same. Subsequently, Casablanca, the project owner, and the project architect expected MFI as Panhandle's successor to perform its obligations under the subcontract. When MFI began having financial difficulty, Saucier stated that he was informed Gecko would then be manufacturing and installing the same product. Throughout this process, Gardner remained the point person on the project.

¶ 16. Gardner argues that Gecko and Mainstream Fab were created after Panhandle had already dissolved and the shareholders and directors of the companies were not the same. However, Gardner formed MFI prior to Panhandle's dissolution, and MFI held itself out as the continuation of Panhandle. Likewise, Gecko then held itself out as the continuation of MFI. Gardner admittedly created MFI in order to avoid Panhandle's legal obligations on another project, and he created Mainstream Fab to protect his assets during his divorce from Waters. Because of Gardner's actions, the trial court noted that the fraudulent-transaction exception also applied.

¶ 17. Upon review of the record, we find substantial evidence to support the trial court's decision. This issue is without merit.

III. Corporate Veil

¶ 18. Gardner argues that the trial court erred in piercing the corporate veil and finding him individually liable. Under Gray v. Edgewater Landing Inc. , 541 So.2d 1044, 1047 (Miss. 1989), for a court to disregard the corporate entity and justify shareholder liability, the complaining party must show credible evidence of the following: "(a) some frustration of contractual expectations regarding the party to whom he looked for performance; (b) the flagrant disregard of corporate formalities by the defendant corporation and its principals; [and] (c) a demonstration of fraud or other equivalent misfeasance on the part of the corporate shareholder." Our case law disfavors piercing the corporate veil except in clearly extraordinary situations, and the "distinct corporate identity will be maintained unless to do so would subvert the ends of justice." Johnson & Higgins v. Comm'r of Ins. of Miss. , 321 So.2d 281, 284 (Miss. 1975). We "recognize that the corporate veil will not be pierced, in either contract or tort claims, except where there is some abuse of the corporate form itself." Penn Nat'l Gaming Inc. v. Ratliff , 954 So.2d 427, 432 (¶ 10) (Miss. 2007).

¶ 19. The first prong addresses who Casablanca expected to be responsible for the contract. According to Saucier's affidavit, he looked to Gardner "individually to perform the terms of the contract." Saucier further stated that when the name of Panhandle changed to MFI and then to Gecko, "Gardner became an even more prominent figure in the project. He was the constant person upon whom I relied for performing the terms of the contract.... He was on site performing the work and continued to be the only person with whom I dealt." Saucier stated that he did not know of Gecko's existence until Gardner asked Saucier to make the checks payable to Gecko. Gecko's name was not mentioned until payment was due. Gray states that "[j]ust as the corporation's negligent performance of contractual duties does not justify the disregard of the corporate entity, neither does the fact that the principal shareholder oversees the day-to-day operation." Gray , 541 So.2d at 1047. However, in this instance, we find credible evidence exists to support this prong.

¶ 20. The second prong addresses whether Gardner flagrantly disregarded the corporate formalities. During discovery, Casablanca requested copies of Gardner's corporate records, including the articles of incorporation; notices of all shareholder meetings; minutes of shareholder meetings; notices of all director's meetings; minutes of all director's meetings; all documents signed by directors in lieu of a formal notice of a director's meeting; all documents signed by shareholders in lieu of a formal notice of shareholder meetings; bylaws and all amendments to bylaws and resolutions of the Board of Directors adopting the bylaws; correspondence between Gardner and any officers or directors of the corporation pertaining to the corporate business; documents pertaining to the capitalization of the corporation; a stock transfer ledger; and the corporate record book. Other than the articles of incorporation for Gecko and Mainstream Fab and the 2014 federal tax return for Gecko, Gardner failed to produce any of the documents requested. Gardner's response was simply that he did not have these documents. We find credible evidence to support this prong.

¶ 21. The final prong addresses fraud or other misfeasance by Gardner. This Court has held that the fraud element required to pierce the corporate veil was not present where plaintiff "presented no evidence that [the defendant], from the beginning, was intent on obtaining [the plaintiff's] money for his own personal use with no intention of performing on the contract and that he used a shell corporation to shield himself from personal liability on the day of reckoning that was inevitably to come." Richardson v. Jenkins Builders Inc. , 737 So.2d 1030, 1032 (¶ 10) (Miss. Ct. App. 1999). We note that non-performance of a contractual obligation does not justify disregarding the corporate entity. Gray , 541 So.2d at 1047. Casablanca produced evidence that Gardner admittedly knew he could not complete performance under the contract. During trial, Gardner admitted that he did not have a Mississippi contractor's license, a fact that he knew would prohibit him from installing the railings. After receiving the payments from Casablanca, Gardner paid himself and his employees, but failed to deliver the product. Once Saucier realized Gardner had no intent to perform under the contract, he hired another metal fabricator to manufacture and install the railings. Although piercing the corporate veil is disfavored except in clearly extraordinary situations, in this instance, we find substantial evidence to support the trial court's findings.

IV. Statute of Frauds

¶ 22. Gardner claims the agreement between Gecko and Casablanca was not enforceable based upon the statute of frauds. See Mississippi Code Annotated section 75-2-201 (Rev. 2016). Gardner's argument is based on the premise that Mainstream Fab and Gecko were not successor corporations. However, we have found Gardner's arguments regarding that issue to be without merit. Gardner was performing under the original contract, a fact that he explicitly discussed with Saucier. Thus, we do not find this case falls under the statute of frauds.

¶ 23. AFFIRMED.

IRVING, P.J., BARNES, CARLTON, FAIR AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. GREENLEE, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. TINDELL, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J., AND GREENLEE, J.

TINDELL, J., CONCURRING IN PART AND DISSENTING IN PART:

¶ 24. Because I find the trial court erred by piercing the corporate veil and holding Gardner individually liable, I concur in part and dissent in part from the majority's opinion.

¶ 25. "Mississippi has a strong public policy favoring maintaining corporate entities and avoiding attempts to pierce the corporate veil ...." Rest. of Hattiesburg LLC v. Hotel & Rest. Supply Inc. , 84 So.3d 32, 39 (¶ 23) (Miss. Ct. App. 2012) (internal quotation mark omitted). As early as 1933, the Mississippi Supreme Court stated that "[a] corporation is an entity separate and distinct from its stockholders." Ill. Cent. R.R. v. Miss. Cotton Seed Prods. Co. , 166 Miss. 579, 579, 148 So. 371, 372 (1933). Our courts have repeatedly recognized that piercing the corporate veil should be reserved "for factual circumstances which are clearly extraordinary-where to do otherwise would 'subvert the ends of justice.' " Gray v. Edgewater Landing Inc. , 541 So.2d 1044, 1046 (Miss. 1989) (quoting Johnson & Higgins of Miss. Inc. v. Comm'r of Ins. , 321 So.2d 281, 284 (Miss. 1975) ). Because it is my opinion that the extraordinary factual circumstances required to pierce the corporate veil do not exist in this case, I must respectfully dissent from the portion of the majority's opinion affirming the trial court's finding that Gardner was individually liable for breach of contract.

¶ 26. Gardner incorporated Panhandle in Florida on May 4, 2006. In 2012, Panhandle submitted a bid to Casablanca for the fabrication of metal handrails for a project by the Coast Transit Authority in Biloxi, Mississippi. On April 27, 2012, Panhandle entered into a subcontract agreement with Casablanca, whereby Panhandle was to "furnish all material and labor for all aluminum handrail and related work[.]" In exchange for those services, Casablanca agreed to pay Panhandle $122,144.12. Saucier, Casablanca's president, executed the agreement on Casablanca's behalf, and Waters, Panhandle's president/director, executed the agreement on Panhandle's behalf.

¶ 27. In June 2012, Waters incorporated MFI in Florida and became MFI's president. In October 2012, Casablanca received shop drawings of the handrails with MFI's name and logo on the drawings. Over the next several months, MFI sent Casablanca multiple sets of handrails that the project architect, the firm of Eley Guild Hardy (EGH), repeatedly rejected.

¶ 28. EGH's records indicated that Casablanca arranged an April 4, 2013 site meeting with MFI "as a last[-]resort effort" to maintain the contract with MFI. Concerned with the progress of satisfactory handrails, Saucier then emailed Waters about their status on April 23, 2013. Waters responded the following day from an MFI email account and advised Saucier to coordinate with Gardner when the project was acceptable to field measure. Waters also advised Saucier that MFI was having financial troubles and that Casablanca would have to pay for any further materials needed to fabricate the handrails. On June 3, 2013, Gardner emailed Saucier and advised that his drafter would correspond with Saucier about "field dems" needed to complete the drawings. The email was digitally signed as follows: "Chris Gardner, Vice President, Mainstream Fabrication, Inc."

¶ 29. Needing the handrails completed, Saucier traveled to Florida to meet with Waters and Gardner. At the meeting, Waters explained to Saucier that she no longer wanted to do the contract because of the difficulties MFI was having in meeting EGH's expectations for the quality of the handrails. At some point during the meeting, Saucier spoke to Gardner alone and implored Gardner to complete the handrails. At that juncture, Gardner agreed to complete the handrails through Gecko, a new company he had formed. When asked about Casablanca's approval for another contractor to complete the handrails, Saucier testified as follows: "I obviously gave consent whenever he [ (Gardner) ] told me he was going to [do] the contract under Gecko and asked me to pay Gecko for it."

¶ 30. From June 11, 2013, through August 9, 2013, Casablanca made out six checks to Gecko that totaled $75,400. Eventually, Gecko delivered the handrails, but once again, they failed to meet EGH's requirements. Frustrated, Saucier returned to Florida and met with Gardner a final time. Gardner explained to Saucier that his rollers had crushed the tubing and that he did not possess the necessary rollers to meet EGH's requirements. Casablanca then retained another fabricator to complete the handrails.

¶ 31. In both tort and contract claims, the corporate entity will not be disregarded unless the complaining party can demonstrate the following: "(1) some frustration of expectations regarding the party to whom he looked for performance; (2) the flagrant disregard of corporate formalities by the defendant corporation and its principals; and (3) a demonstration of fraud or other equivalent misfeasance on the part of the corporate shareholder." Penn Nat'l Gaming Inc. v. Ratliff , 954 So.2d 427, 431 (¶ 9) (Miss. 2007) (citing Gray , 541 So.2d at 1047 ) ). The complaining party must establish each of these factors by credible evidence. Rosson v. McFarland , 962 So.2d 1279, 1285 (¶ 23) (Miss. 2007). While I am not convinced a flagrant disregard for corporate formalities occurred in this case that rises to the level necessary to meet the second prong, I acknowledge that some corporate records appear to be lacking. Nevertheless, I find Casablanca presented no credible evidence as to the first and third factors needed to pierce the corporate veil.

¶ 32. As to the first prong, the contract, on its face, places the burden of performance on a corporation and not on an individual. See Richardson v. Jenkins Builders Inc. , 737 So.2d 1030, 1032 (¶ 9) (Miss. Ct. App. 1999) (refusing to pierce the corporate veil where the parties' contract, on its face, placed the burden of performance on a corporation rather than on an individual). No arguable basis exists for concluding that Casablanca actually believed or was justified in believing that Gardner himself was individually guaranteeing the contract's performance. EGH's project records indicated that everyone looked to MFI, rather than to Gardner individually, to guarantee performance. EGH's notes stated that Casablanca arranged an April 4, 2013 site meeting with MFI "as a last[-]resort effort" to maintain the contract with MFI. In addition, Saucier admitted that he later approved Gecko, and not Gardner individually, to complete the handrails and that, thereafter, Casablanca made payments to Gecko rather than to Gardner individually. The handrail drawings Casablanca received had MFI's corporate logo and name on them, and all written correspondence was sent on corporate letterhead that identified both Waters and Gardner as president and vice president, respectively. "Just as the corporation's negligent performance of contractual duties does not justify the disregard of the corporate entity, neither does the fact that the principal shareholder oversees the day-to-day operation." Gray , 541 So.2d at 1047. The fact that Gardner served as a point of contact for Casablanca and oversaw the handrails' fabrication simply is not enough to satisfy the first prong.

¶ 33. As to the third factor, no evidence establishes that Panhandle entered into the contract with Gardner intending either to convert Casablanca's funds for his own personal use or to never perform under the contract. To the contrary, Gardner and Saucier both agreed that Gecko would complete the handrails at a time when Gecko was under no obligation to provide the handrails. As the majority recognizes, Gardner admitted he knew he could not install the handrails in Mississippi because he was not a licensed Mississippi contractor. The majority points to Gardner's admission as evidence that he knew he could not complete performance of the contract. However, the majority fails to recognize that, although Gardner himself may not have been able to install the handrails, Panhandle could have easily subcontracted the installation to a licensed Mississippi contractor. Furthermore, at the time Casablanca approved Gecko to complete the project, Casablanca only sought to have Gecko deliver the handrails rather than install them. Contrary to any assertion of fraud, the record clearly shows that Gecko, and even MFI, attempted on multiple occasions to complete delivery of the handrails. These actions therefore do not rise to the level of fraud or other equivalent conduct. See Trim v. Trim , 33 So.3d 471, 478 (¶ 19) (Miss. 2010) (discussing the elements of an intentional or fraudulent representation).

¶ 34. For these reasons I concur in part and dissent in part from the majority's opinion.

GRIFFIS, P.J., AND GREENLEE, J., JOIN THIS OPINION.

      The names and dates of incorporation of the different companies include Panhandle (May 4, 2006); Mainstream Fabrication Inc. (June 8, 2012); Gecko Outdoor Products Corp. (May 1, 2013); and Mainstream Fab Inc. (May 27, 2014). Casablanca did not sue Mainstream Fabrication Inc.

      Panhandle was a Florida corporation, initially owned by Gardner and his wife, Tabby Waters. Gardner later transferred ownership to Waters for better chances at obtaining government contracts. Gardner remained vice president and registered agent until Panhandle was voluntarily dissolved on March 8, 2013. Gardner admittedly dissolved Panhandle to avoid a judgment in Louisiana.

      MFI was incorporated in Florida. Waters was listed as president and Gardner as vice president.

      This email was not produced at trial.

      The checks admitted into evidence totaled $90,000.

      Gardner formed Mainstream Fab, purportedly to keep assets from Waters during their divorce proceedings. To be clear, Mainstream Fab is a separate entity from MFI. According to the Florida Secretary of State's website, Mainstream Fab was administratively dissolved on September 22, 2017.

      Our standard of review regarding Rule 12(b) motions to dismiss is de novo. Scaggs v. GPCH-GP Inc. , 931 So.2d 1274, 1275 (¶ 6) (Miss. 2006).

      Waters was not called as a witness during trial.

      In its final judgment, the trial court found that "Gardner should be held personally liable for breach of the said [c]ontract pursuant to judicial precedent [that] allows the [c]ourt to disregard attempts to shield an individual from individual liability by using a corporate form." Although circumstances arise where the courts can and should pierce the corporate veil, standing alone, the trial court's reasoning presents an incorrect statement of Mississippi caselaw. The primary purpose of the corporate form, particularly for small businesses, is to protect the shareholders/owners from individual liability. See Gray , 541 So.2d at 1047. Furthermore, I find Casablanca failed to present the necessary credible evidence to meet every prong of the test for piercing the corporate veil.

      Casablanca had been awarded the contract with the Coast Transit Authority for the construction of Comfort Station on the beach in Biloxi.

      Waters was Gardner's wife and was Panhandle's sole shareholder at the time she executed the contract.

      According to Gardner, Waters alone made the decision to cease operating as Panhandle and to start operating as MFI. Gardner testified he did not support the decision. On March 18, 2013, Waters dissolved Panhandle.

      With the financial problems facing MFI and his marriage to Waters suffering, Gardner had incorporated Gecko with the intent of fabricating tree stands for hunters.


author: WESTBROOKS, J., FOR THE COURT:

text:
    Calvin Lee ROBINSON a/k/a Calvin L. Robinson, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00417-COA
    Court of Appeals of Mississippi.
    June 26, 2018
    ATTORNEY FOR APPELLANT: CALVIN LEE ROBINSON (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, Jackson
    BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Calvin Lee Robinson, appearing pro se, appeals the Leflore County Circuit Court's denial of his motion for post-conviction relief (PCR). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2002, Robinson was indicted for statutory rape. In 2003, he pleaded guilty and was sentenced to thirty years in the custody of the Mississippi Department of Corrections (MDOC), with ten years suspended upon successful completion of five years of supervised probation.

¶ 3. In July 2004, Robinson filed his first PCR motion, which the circuit court denied. In that PCR motion, Robinson asserted that his plea was involuntary, his trial counsel was deficient, and his sentence was disproportionate. Robinson did not appeal the denial of the 2004 PCR motion.

¶ 4. In September 2007, Robinson filed his second PCR motion, which the circuit court denied as successive. Robinson appealed the denial of this motion. In 2009, this Court affirmed the circuit court's judgment in Robinson v. State , 19 So.3d 140, 141 (¶ 21) (Miss. Ct. App. 2009).

¶ 5. In 2016, Robinson filed his third PCR motion alleging that he was denied effective assistance of counsel. He asserted that his trial counsel assured him that he would receive a sentence between eight and six years if he entered a guilty plea. Robinson attached the affidavits of his sister, Minnie Scott, his wife, Debra Robinson, and his niece, Sharon Murry, in support of his assertion. In January 2017, the circuit court deemed Robinson's PCR motion was time-barred, successive, and without merit.

¶ 6. In June 2017, Robinson timely filed a motion to proceed on appeal to this Court, and that motion was granted.

STANDARD OF REVIEW

¶ 7. "When reviewing a trial court's denial or dismissal of a PCR motion, we will only disturb the trial court's factual findings if they are clearly erroneous; however, we review the trial court's legal conclusions under a de novo standard of review." Jackson v. State , 178 So.3d 807, 809 (¶ 8) (Miss. Ct. App. 2014).

DISCUSSION

¶ 8. This is Robinson's third PCR motion. The circuit court held that Robinson's PCR motion was time-barred, successive, and without merit.

I. Procedural Bars

A. Time-Bar

¶ 9. "Under Mississippi's PCR statute, challenges to guilty pleas must be filed within three years after entry of the judgment of conviction." Allen v. State , 177 So.3d 1148, 1150 (¶ 7) (Miss. Ct. App. 2014) ; see also Miss. Code Ann. § 99-39-5(2) (Rev. 2015). Robinson filed this PCR motion more than three years after the entry of his judgment of guilt in 2003. Therefore, his motion is time-barred.

B. Successive-Writ Bar

¶ 10. The circuit court dismissed Robinson's other two PCR motions and deemed them successive. "Under the UPCCRA, any order denying or dismissing a PCR motion is a bar to a second or successive PCR motion." Stokes v. State , 199 So.3d 745, 749 (¶ 9) (Miss. Ct. App. 2016) ; see also Miss. Code Ann. § 99-39-23(6) (Rev. 2015). As a result, this PCR motion is successive-writ barred.

II. Other Claims in Robinson's Pro se Brief

¶ 11. Robinson asserts that his attorney's ineffective assistance rendered his guilty plea involuntary. He also argues that he has newly discovered evidence to overcome the procedural bars.

¶ 12. This Court has ruled that "[w]hen a subsequent PCR motion is filed, the burden falls on the movant to show he has met a statutory exception." Id. at 749 (¶ 10). We acknowledge that "[t]here is a recognized exception for errors affecting fundamental constitutional rights." Allen , 177 So.3d at 1150 (¶ 9) (internal quotation mark omitted). However, "mere assertion[s] of a fundamental-right violation [are] not enough." Id. Therefore, this Court will review Robinson's additional claims to determine whether any exceptions to the procedural bars apply.

Ineffective Assistance of Counsel, Involuntary Plea, and Newly Discovered Evidence

¶ 13. Robinson maintains that he was denied effective assistance of counsel and did not voluntarily enter his guilty plea. Robinson asserts that he would not have entered a guilty plea if he had known the actual consequences of the guilty plea. Robinson claims that his trial counsel informed him that the circuit court would sentence him to a term between six and eight years. Attached to his PCR motion were three affidavits.

¶ 14. "Ineffective-assistance claims require a showing that: (1) counsel's performance was deficient and (2) prejudice resulted." Allen , 177 So.3d at 1150 (¶ 11) (citing Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). Further, "the burden of proving that a guilty plea is involuntary is on the defendant and must be proven by a preponderance of the evidence." Funchess v. State , 202 So.3d 1286, 1289 (¶ 7) (Miss. Ct. App. 2016). "To determine whether the plea is voluntarily and intelligently given, the trial court must advise the defendant of his rights, the nature of the charge against him, as well as the consequences of the plea." Id.

¶ 15. In Robinson v. State , 19 So.3d 140, 144 (¶ 20) (Miss. Ct. App. 2009), this Court held:

[Robinson's] petition was accompanied by the affidavit of Robinson's wife, and it contained allegations concerning the voluntariness of his guilty plea, his assertion that his counsel was ineffective, as well as a similar argument about the disproportionality of his sentence. The circuit court considered these issues and denied Robinson's first PCR petition on the merits, as it had the discretion to do.

¶ 16. However, Robinson asserts that he submitted newly discovered evidence to the circuit court evincing that he received ineffective assistance of counsel. The three affidavits submitted to the circuit court signed by Robinson's wife, Debra Robinson, his sister, Minnie Scott, and his niece, Sharon Murry, stated that each person was present when Robinson's attorney assured him that he would only receive a six to eight years sentence if he entered a guilty plea.

¶ 17. The circuit court found that this evidence was available when Robinson entered his guilty plea. Furthermore, Robinson's wife had previously submitted a similar affidavit to the court, and the circuit court found that Robinson failed to state any new grounds regarding the voluntariness of his plea. As a result, the circuit court found that Robinson's claim was barred under the theory of res judicata and deemed it a successive writ.

¶ 18. There is, however, a newly-discovered-evidence exception to the three-year statute of limitations. Allen , 177 So.3d at 1151 (¶ 6) ; see also Miss. Code Ann. § 99-39-5(2). "The successive-writ bar does not apply where a PCR movant shows he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence." Allen , 177 So.3d at 1151 (¶ 6) (internal quotation mark omitted); see also Miss. Code Ann. § 99-39-23(6).

¶ 19. Here, although Robinson claimed he had "new" evidence, the circuit court found the attached affidavits were mere recitations of claims that had already been addressed by the court. Also, the statements contained in the affidavits were readily available at the time Robinson entered his guilty plea. But, Robinson failed to submit those affidavits during that time. The circuit court also noted that neither of the witnesses nor Robinson brought the allegations against Robinson's attorney at the hearing to withdraw his guilty plea or at Robinson's sentencing hearing. We agree.

CONCLUSION

¶ 20. After review of the record, we find that Robinson failed to proffer any newly discovered evidence that would trigger any exceptions to the procedural bars. Therefore, we affirm the denial of Robinson's PCR motion.

¶ 21. AFFIRMED.

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

      Although styled as a denial and dismissal, we refer to the determination as a "denial" pursuant to Jackson v. State , 67 So.3d 725, 730-31 (¶¶ 17-21) (Miss. 2011).


author: GREENLEE, J., FOR THE COURT:

text:
    Michael Bernard MOORE a/k/a Michael B. Moore a/k/a Michael Moore a/k/a Michael Banard Moore, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CA-01408-COA
    Court of Appeals of Mississippi.
    June 26, 2018 Rehearing Denied November 20, 2018
    ATTORNEY FOR APPELLANT: WILLIAM STACY KELLUM III, Jackson
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER, Jackson
    BEFORE LEE, C.J., GREENLEE AND TINDELL, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. On October 17, 2011, Michael Bernard Moore pled guilty to statutory rape and was sentenced by the Harrison County Circuit Court to thirty years in the custody of the Mississippi Department of Corrections (MDOC). Moore filed a motion for post-conviction relief (PCR) in 2016, which the circuit court dismissed. The circuit court determined that the motion was procedurally barred and Moore was not entitled to any relief for his claims. Finding no error, we affirm.

BACKGROUND

¶ 2. On July 26, 2010, Moore was indicted on the charges of statutory rape in violation of Mississippi Code Annotated section 97-3-65(1) (Supp. 2007) and the touching of a child for lustful purpose in violation of Mississippi Code Annotated section 97-5-23(1) (Rev. 2006). On October 17, 2011, Moore pled guilty to Count One, statutory rape, in the Circuit Court of Harrison County, Mississippi. The circuit court sentenced him to thirty years in the custody of the Mississippi Department of Corrections (MDOC), with ten years suspended and twenty years to serve, followed by five years of post-release supervision. Moore was further ordered to pay a $2,000 fine, to be paid at a rate of $50 per month. Moore's sentence also required that he register as a sexual offender and have no further contact with the victim.

¶ 3. On July 1, 2016, Moore filed a PCR motion. The motion asserted several errors, including invalidity of the indictment, lack of subject matter jurisdiction, ineffective assistance of counsel, and double jeopardy. The trial court dismissed Moore's motion without an evidentiary hearing, concluding Moore's claims did not except his motion from the three-year statutory bar. On appeal, Moore raises the following issues: lack of jurisdiction, ineffective assistance of counsel, lack of capacity to enter a guilty plea, and dismissal without an evidentiary hearing.

STANDARD OF REVIEW

¶ 4. A trial court may summarily dismiss a PCR motion "[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief ...." Miss. Code Ann. § 99-39-11(2) (Rev. 2015). The summary dismissal of a defendant's PCR motion will be affirmed "if [he] fails to demonstrate a claim procedurally alive substantially showing the denial of a state or federal right." Salter v. State , 184 So.3d 944, 948 (¶ 10) (Miss. Ct. App. 2015) (citing White v. State , 59 So.3d 633, 635 (¶ 4) (Miss. Ct. App. 2011) ). When reviewing a trial court's denial or dismissal of a PCR motion, we will only disturb the trial court's decision if the trial court abused its discretion and the decision was clearly erroneous. However, we review the trial court's legal conclusions de novo. Hughes v. State , 106 So.3d 836, 838 (¶ 4) (Miss. Ct. App. 2012).

¶ 5. When a defendant pleads guilty to an offense, the corresponding motion for post-conviction relief must be filed within three years after entry of the judgment of conviction. Miss. Code Ann. § 99-39-5(2) (Rev. 2015). Moore's motion is time-barred, as he pled guilty in 2011 and filed his PCR motion in 2016, well after the three-year statute of limitations. Nevertheless, we will address the merits of Moore's appeal to determine whether he meets any exceptions to the procedural bar. See § 99-39-5(2)(a)-(b) (statutory exceptions to the time-bar); Rowland v. State , 42 So.3d 503, 507 (¶ 12) (Miss. 2010) ("[E]rrors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Postconviction Collateral Relief Act (UPCCRA) ].").

DISCUSSION

I. Jurisdiction to Accept Moore's Guilty Plea

¶ 6. Moore argues that the factual allegations of the crime of statutory rape occurred in Biloxi and were only cognizable in the Second District of Harrison County. In support, Moore offers an unsworn statement of the victim, "E.N.," who purports the two had consensual sex in Biloxi, and not in Gulfport.

¶ 7. Because Moore did not present E.N.'s unsworn statement to the trial court, it is not part of the record. Further, E.N.'s statement is insufficient evidence to support Moore's allegation: E.N. did not confirm her declaration by oath or affirmation before a person with authority to administer such oath or affirmation. See Miss. Code Ann. § 11-1-1 (Rev. 2014).

¶ 8. After a review of the record and the prior proceedings, we find Moore is not entitled to relief. In his plea petition, Moore gave sworn testimony that:

Between December 2, 2009, and December 24, 2009, [he] unlawfully had sexual intercourse with E.N., a child at least 14 but under 16 years of age. [He] was 48 years old at the time. She was not [his] wife when [they] had intercourse. This happened in Gulfport, Harrison County, Mississippi.

Moore testified during his plea hearing that he had read his petition or someone had read it to him, and everything in his petition was true and correct. Moore further testified he understood what his petition contained; he had discussed the petition with his attorney; and his attorney had answered his questions about the petition.

¶ 9. The trial court was entitled to rely on Moore's sworn admissions that the statutory rape occurred in Gulfport, within the First Judicial District of Harrison County, Mississippi, where Moore was charged and pled guilty. See Richardson v. State , 769 So.2d 230, 235 (Miss. Ct. App. 2000) ("If the defendant's claims are totally contradicted by the record, the trial judge may rely heavily on previous statements made under oath."). Mississippi Code Annotated section 99-39-9(1) (Rev. 2015) requires that Moore furnish affidavits to support his claims or show cause why he could not furnish them. He has failed to do either. We therefore find that Moore's claim is unsupported and without merit.

II. Ineffective Assistance of Counsel

¶ 10. During his plea hearing, Moore swore under oath that he was satisfied with his attorney's representation. On appeal, however, Moore argues his attorney provided ineffective assistance of counsel. Specifically, Moore asserts his counsel promised that the trial court would impose a lenient sentence of five years if he pled guilty, and that he would not have accepted the plea offer had he known he would be sentenced to thirty years. Moore also argues that his counsel should have moved to dismiss the indictment due to its "jurisdictional defect."

¶ 11. "It is true that 'errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA.' " Sanders v. State , 179 So.3d 1190, 1192 (¶ 9) (Miss. Ct. App. 2015) (citing Rowland , 42 So.3d at 506 (¶¶ 9, 12) ). "However, the supreme court has not held that ineffective-assistance-of-counsel claims in noncapital cases invoke a fundamental right that eludes the UPCCRA's procedural bars." Id. Notwithstanding, we will review Moore's claim on the merits.

¶ 12. An ineffective assistance of counsel claim requires a showing that (1) counsel's performance was deficient, and (2) the deficient performance resulted in prejudice to the defendant. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Additionally, "a defendant must plead claims of ineffective assistance of counsel with specificity, and the claim must be supported by affidavits other than his own." McBride v. State , 108 So.3d 977, 980 (¶ 11) (Miss. Ct. App. 2012) (citing Robertson v. State , 669 So.2d 11, 13 (Miss. 1996) ). When a movant fails to attach any supporting affidavits and relies solely on his own sworn motion, his ineffective assistance claim must fail. Id. Failure to attach affidavits of other persons may be excused upon a showing of good cause, specifically detailed in the motion, why they cannot be obtained. Miss. Code Ann. § 99-39-9(1)(e) (Rev. 2015).

¶ 13. Here, Moore did not support his PCR motion with affidavits other than his own, and he offers no good cause why he could not obtain additional affidavits. As discussed above, there is nothing in the record to indicate that Moore's indictment contained a jurisdictional defect, and therefore, there is nothing to support Moore's assertion that his attorney was deficient in not recognizing this "error." Further, there is no indication in the record that Moore's attorney promised any leniency to obtain his guilty plea.

¶ 14. At the plea hearing, the circuit judge thoroughly covered what rights Moore was giving up by entering his guilty plea, and inquired if Moore understood that the court was not bound by the prosecutor's sentencing recommendation. Moore acknowledged that he understood he was charged with statutory rape, and that the judge "could sentence [him] to the maximum of 30 years in prison and impose the maximum fine of $10,000." The court also asked:

THE COURT: ... [A]re you satisfied with the services of your attorney?
[MOORE]: Yes, sir.
THE COURT: Are you satisfied that your attorney familiarized himself with the facts of your particular case?
[MOORE]: Yes, sir.
....
THE COURT: Are you under any undue influence or has anyone guaranteed you any specific sentence[,] or promised you anything of value to make you plead guilty today?
[MOORE]: No, sir.

The judge asked Moore several times if it was still his intention to plead guilty. Each time, Moore replied, "Yes, sir." In addition, Moore's signed plea petition states:

I believe that my lawyer has done all that anyone could do to counsel and assist me. I AM SATISFIED WITH THE ADVICE AND HELP HE/SHE HAS GIVEN ME; I recognize that if I have been told by my lawyer that I might receive probation or a light sentence, this is merely his prediction and is not binding on the Court.

¶ 15. Beside his own affidavit, Moore has failed to show that but for trial counsel's advice, he would not have entered his guilty plea. Lackaye v. State , 166 So.3d 560, 564 (¶ 12) (Miss. Ct. App. 2015) ("When the only support the movant offers is his own affidavit, and it is contradicted by unimpeachable documents in the record, an evidentiary hearing is not required."). Accordingly, this issue is without merit.

III. Mental Competency

¶ 16. In his reply brief, Moore claims that his guilty plea was not made knowingly, intelligently, and voluntarily. We note that claims regarding mental competency are not subject to procedural bars. Jones v. State , 174 So.3d 902, 907 (¶ 13) (Miss. Ct. App. 2015) (citing Smith v. State , 149 So.3d 1027, 1031 (¶ 8) (Miss. 2014) (overruled on other grounds by Pitchford v. State , 240 So.3d 1061 (Miss. 2017) ). However, Moore did not raise any claim regarding mental competency in his PCR motion, nor did he raise it in his initial brief. Because "[w]e will not consider issues raised for the first time in an appellant's reply brief," we decline to review this issue. Ogunbor v. May , 204 So.3d 840, 848 (¶ 33) (Miss. Ct. App. 2016) (quoting Shelton v. State , 172 So.3d 216, 220 (¶ 20) (Miss. Ct. App. 2014) ).

IV. Evidentiary Hearing

¶ 17. Moore argues that the circuit court erred in dismissing his PCR motion without first conducting an evidentiary hearing. Based on the foregoing reasons, we find the circuit court's dismissal of Moore's PCR motion is consistent with the evidence and testimony presented in the record. Mississippi Code Annotated section 99-39-11(2) provides that a circuit court may summarily dismiss a PCR motion "[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief[.]" It follows that we find that this issue is without merit.

CONCLUSION

¶ 18. For these reasons, we affirm the circuit court's dismissal of Moore's PCR motion.

¶ 19. AFFIRMED.

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