text:
    Jerry RICE, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-00047-COA.
    Court of Appeals of Mississippi.
    Feb. 16, 2010.

      Jerry Rice, Appellant, pro se.
    Office of the Attorney General by Jane L. Mapp, attorney for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. Jerry Rice, an inmate in the custody of the Mississippi Department of Corrections (MDOC), appeals from an order of the Circuit Court of Sunflower County, which upheld a decision of the MDOC denying Rice trusty status.

¶ 2. Finding no reversible error in the circuit court’s order, we affirm.

FACTS

¶ 3. In 1992, Rice was convicted of aggravated assault and was sentenced to twelve years’ confinement. The following year, pursuant to a plea agreement, he entered a guilty plea to charges of kidnap-ing and capital murder. Pursuant to the plea agreement, Rice was given a life sentence for the capital murder and a sentence of thirty years for the kidnaping. The orders sentencing Rice stated that the capital murder sentence would run consecutively to Rice’s 1992 sentence, and that the kidnaping sentence would run consecutively to the capital murder sentence. In other words, Rice was sentenced to serve his aggravated assault time, then the capital murder sentence, and then the kidnap-ing sentence.

¶ 4. Rice filed a complaint with the MDOC’s Administrative Remedy Program (ARP) in early 2008, seeking to be placed into trusty status. The ARP administrator issued an opinion on April 10, 2008, that stated that the MDOC’s records showed that Rice was not eligible for trusty status. The reason for his ineligibility was not set out in the opinion. Rice then filed a document in the Circuit Court of Sunflower County styled “Motion to Show Cause,” which was treated by the circuit court as an appeal from the ARP’s opinion. Rice attached a sentence-computation record to his filing. The computation showed that Rice was in trusty status from September 6, 2002, until January 9, 2003. Rice admitted in his filing that he was removed from trusty status due to a rule violation.

¶ 5. It appears from the record that when Rice filed his complaint with the ARP, he was under the impression that the MDOC was running his life sentence first. He argued that if he were able to serve the kidnaping sentence first and be placed into trusty status, he could reduce the amount of time he would serve before beginning his life sentence.

¶ 6. At the hearing on his appeal before the circuit court, Gloria Gibbs, the MDOC corrections-records technical supervisor, explained how Rice’s sentences were being applied. She said that in 1997, Rice completed his sentence for the aggravated assault charge and that he then began serving his thirty-year sentence for kidnaping. Circuit Judge Betty W. Sanders asked Gibbs why the kidnaping sentence was being served before the life sentence, since the 1993 sentencing judgments had ordered that the life sentence be served first. Gibbs’s response was: “that’s just the way they worked it. Probably because he was sentenced on the same day.” Judge Sanders then asked the MDOC’s attorney, James M. Norris, “Mr. Norris, how do they flip them like that? That’s not what the order says.” Norris responded that he did not know why it was done like that, “but it doesn’t make any difference because the capital murder can’t be discharged.” Judge Sanders responded that it did make a difference because it was obvious that Rice did not understand his sentence. Judge Sanders further stated that she thought that the MDOC should run the sentence the “way the [sentencing] judge said it.... [B]eeause it seems to me the intent was that [Rice] wouldn’t get out. And, see, if [Rice] knew that, [he] wouldn’t have any reason to file a lawsuit.”

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 8. We note at the outset that even if Rice were granted trusty status, he could not use any earned trusty time to reduce the time that he must serve before becoming eligible for parole. Since April 2004, the MDOC, pursuant to Mississippi Code Annotated section 47-7-3(2) (Supp. 2009), has stopped applying trusty time to reduce an offender’s parole eligibility date. Section 47-7-3(2) states that “an inmate shall not be eligible to receive earned time, good time or any other administrative reduction of time which shall reduce the time necessary to be served for parole eligibility[.]” Thus, Rice’s placement into trusty status would not reduce the amount of time that he has to serve before becoming eligible for parole on the kidnaping conviction. Rice does not question that his life sentence could not be reduced by placement into trusty status, as Mississippi Code Annotated section 47-5-138.1(2)(a) (Rev.2004) specifically states that an offender in trusty status sentenced to life imprisonment shall not have his sentence reduced.

¶ 9. Furthermore, we note that the MDOC’s decision to change its application of the trusty-time policy is not an ex post facto application of the law as to Rice. We base our decision upon two opinions, one from the Mississippi Supreme Court and the other from this Court, which have affirmed the MDOC’s ability to change its interpretation of the law regarding parole eligibility for offenders without running afoul of the ex post facto prohibition. In Taylor v. Mississippi State Probation and Parole Board, 365 So.2d 621, 622 (Miss.1978), the MDOC and the Mississippi Parole Board changed their methods of calculating parole eligibility in order to correct a prior misinterpretation of section 47-7-3. The Mississippi Supreme Court held that “administrative correction of a prior misinterpretation of parole laws” does “not violate the ex post facto clause of the United States or Mississippi Constitutions” even if it caused the offender to serve more time on his sentence. Id. Citing Taylor, this Court found that the MDOC’s change in its application of its policies regarding another area of parole eligibility for offenders was not an ex post facto violation. Snow v. Johnson, 913 So.2d 334, 338-39(¶ 14) (Miss.Ct.App.2005).

¶ 10. Had Rice’s sentences been run in accordance with the 1993 sentencing orders, he would currently be serving a life sentence and would be unable to hasten his parole eligibility date with any trusty earned time. As we understand Rice’s contentions, he does not complain that his life sentence should be running now instead of his kidnaping sentence; rather, Rice contends only that he should be able to enter trusty status and earn time with which to reduce the amount of time that he must serve before becoming eligible for parole. We find no merit to this contention. According to his sentencing order, Rice should serve his capital murder sentence before his kidnaping sentence; in short, Rice should currently be serving time for his capital murder conviction rather than his kidnaping conviction. Rice’s capital murder conviction makes him ineligible for the privilege of entering trusty status. Therefore, there is no merit to any complaint that he should be given the opportunity to enter trusty status.

¶ 11. Finally, we note that Rice was discharged from trusty status due to an unspecified rule violation. Nothing in the record indicates the severity of his violation or the impact that it had on whether he would be considered for trusty status again at some future date. It is entirely likely that this violation has made Rice ineligible for trusty status. Regardless, the question of whether his prior violation makes him ineligible is moot in light of his capital murder sentence.

¶ 12. Thus, we find that Rice’s argument on appeal is without merit, and we affirm the judgment of the circuit court.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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

      . In its brief, the State acknowledges that for a time the MDOC allowed trusty time to reduce an offender's parole date, but it later determined such an application was in violation of section 47-7-3(2).


source: Caselaw Access Project

author: GRIFFIS, J„

license: Public Domain

text:
    WASTEWATER PLANT SERVICE CO., INC., Appellant v. HARRISON COUNTY UTILITY AUTHORITY, Appellee.
    No. 2008-CA-01815-COA.
    Court of Appeals of Mississippi.
    Feb. 23, 2010.

      George W. Healy IV, Gulfport, attorney for appellant.
    Leonard Adam Blackwell II, Jason Russell Savarese, Gulfport, attorneys for ap-pellee.
    Before MYERS, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J„

for the Court:

¶ 1. Wastewater Plant Service Co., Inc. (WPSCO) brought this action against Harrison County Utility Authority (HCUA) after HCUA chose another company’s proposal for the operation and management of HCUA’s wastewater facilities. On appeal by bill of exceptions, the circuit court affirmed HCUA’s decision. WPSCO now appeals, and the appeal has been deflected to this Court for consideration.

FACTS

¶ 2. HCUA governs Harrison County’s wastewater-treatment system, which includes wastewater-treatment plants and an interceptor system. HCUA is governed by a board of directors (Board), which is comprised of five mayors from cities located in Harrison County and two other representatives.

¶ 3. From 2000 through 2006, HCUA contracted with WPSCO to provide operation and maintenance services for HCUA’s interceptor system.

¶ 4. In August 2006, HCUA issued a Request for Proposals (“RFP”) which invited contractors to submit proposals for the operation and maintenance of its wastewater plants and interceptor lines. Proposals could be submitted for only one or for both systems.

¶ 5. According to the RFP, a mandatory pre-proposal meeting was held on August 16, 2006, at 9:00 a.m. In attendance were representatives of WPSCO; Operation Technologies, Inc. (Optech); S.H. Anthony (SA); and Severn Trent.

¶ 6. The submission deadline for proposals was September 15, 2006. HCUA received three proposals. SA, together with Utility Partners (“UP”), submitted a proposal for the operation of both the waste-water system and interceptor system (the “SA/UP” proposal). WPSCO submitted a proposal for the operation of the interceptor system. Optech submitted proposals for the operation of the wastewater system.

¶ 7. SA’s proposed price was $299,862 per year. WPSCO’s proposed price was $273,843.96 per year. However, the SA/ UP’s proposal included services that were not covered in WPSCO’s proposed cost. The SA/UP proposal included the following services:

(1) infrared surveying of HCUA’s pump stations every three years (for preventative maintenance);
(2) draw[-]down testing of the pump stations (to determine their volume of wastewater flow) by an engineer; and
(3) boom[-]truck utilization.

On September 26, 2006, eleven days after the proposal due date, WPSCO contacted HCUA to state that it would also include the additional services that SA had included in its proposal at no additional cost.

¶ 8. Thereafter, Optech filed a complaint for a temporary restraining order and a motion for preliminary and/or permanent injunction and damages in the Harrison County Circuit Court. Optech’s suit sought to prevent SA and UP and their officers and employees from entering into negotiations with HCUA for the operation of HCUA facilities. Optech claimed that its former employees had violated the Mississippi Trade Secrets Act when the employees left Optech to work for UP and/or work with SA. WPSCO did not join in the action against SA and UP. On October 2, 2006, the circuit court granted Optech’s ex parte motion for a temporary restraining order.

¶ 9. Kamram Pahlavan was the Executive Director of HCUA. Pahlavan summarized the proposals to a technical committee of HCUA, which then reviewed the proposals. Pahlavan compared both Op-tech’s and SA/UP’s proposals for the wastewater plants, and WPSCO’s and SA/ UP’s proposals for the interceptor system.

¶ 10. According to Pahlavan’s summary, SA/UP’s base proposal price was $299,862 per year and included pricing for an infrared survey, draw-down tests, and boom-truck services. WPSCO’s base proposal price was $273,843.96 per year and did not include the infrared survey, draw-down tests, or boom-truck services. Pahlavan also placed a market value on the services which were offered by SA/UP and not by WPSCO:

(1) Every three years, SA/UP will use a third party to perform an infrared survey of all equipment and provide the Utility Authority with a written report of the findings. This service is valued [at] an estimated $10,000-$15,000.
(2) SA/UP includes all costs for draw[-]down testing, performed by a professional engineer, [sic] in the proposal. This service is valued [at] an estimated $8,000-$10,000.
(3) SA/UP will provide the use of a 10-15 ton boom truck with up to 55’ reach for removal of pumps and equipment, as well as said installation of such equipment is included. The Utility Authority spent approximately $10,000 for this service to be provided by vendors.

¶ 11. On October 5, 2006, the Board met and selected the SA/UP proposal. However, since the temporary restraining order was in effect, the Board mandated that SA/UP provide evidence of its legal ability to enter into negotiations with HCUA.

¶ 12. On October 13, 2006, the circuit court dissolved the temporary restraining order and denied Optech’s request for a permanent injunction.

¶ 13. On October 19, 2006, the Board affirmed its acceptance of SA/UP’s proposal. Thereafter, WPSCO filed a bill of exceptions in the Harrison County Circuit Court to contest HCUA’s actions. In WPSCO’s bill of exceptions, WPSCO did not ask for nor establish “damages”; instead, it asked the court to overturn the HCUA’s decision and award it the contract. The circuit court ruled in favor of HCUA. From this judgment, WPSCO appeals.

STANDARD OF REVIEW

¶ 14. “When [the appellate Court] reviews a decision by a chancery or circuit court concerning an agency action, [it applies] the same standard of review that the lower courts are bound to follow.” Miss. Sierra Club, Inc. v. Miss. Dep’t of Envtl. Quality, 819 So.2d 515, 519 (¶ 15) (Miss.2002). Our standard of review from a finding of an administrative agency is limited. Uniform Rule of Circuit and County Court 5.03, entitled “Scope of appeals from administrative agencies,” provides:

On appeals from administrative agencies[,] the court will only entertain an appeal to determine if the order or judgment of the lower authority:
1. Was supported by substantial evidence; or
2. Was arbitrary or capricious; or
3. Was beyond the power of the lower authority to make; or
4. Violated some statutory or constitutional right of the complaining party.

Questions of law will be reviewed de novo. Smith v. Jackson Constr. Co., 607 So.2d 1119, 1125 (Miss.1992).

ANALYSIS

¶ 15. We begin our analysis with a brief explanation of two matters, which aid our review. First, Mississippi Rule of Appellate Procedure 28(a)(3) requires that there be a statement of the issues and “[e]ach issue presented for review shall be separately numbered in the statement.” Rule 28(a)(6) provides that “[t]he argument shall contain the contentions of [the] appellant with respect to the issues presented, and the reasons for those contentions. ...” M.R.A.P. 28(a)(6). The typical interpretation requires a separate argument for each issue. However, there are cases in which it is necessary for a party to combine several issues for argument. This Court attempts to address all of the issues raised by the parties. The Court’s ability to address the issues presented by a party is advanced when the party’s brief provides for argument on each separate issue.

¶ 16. Here, WPSCO’s brief has combined several issues for argument. For clarity, this opinion quotes WPSCO’s issues verbatim and couples the arguments as WPSCO did in its brief.

¶ 17. Second, WPSCO attempts to make an issue over whether HCUA’s advertisement was a request for bids and or a request for proposals. WPSCO contends it was a request for bids and not a request for proposals. HCUA claims it was a request for proposals. There is no doubt that HCUA labeled its advertisement as a “Request for Proposals.” Further, there is no doubt that all of the documents indicate that HCUA was considering “proposals.” WPSCO does not argue or cite authority to define the legal significance of its use of the words “bids” as opposed to the word “proposals.” More disturbing, however, is the fact that WPSCO’s brief often confuses these words, uses them interchangeably, or fails to indicate that there is a separate use and meaning (e.g. the wording of Issue 1 includes the use of both words without a distinction). There is a legal distinction between the words “bid” and “proposal,” and the word which is at issue here is a “proposal.”

¶ 18. We now address the issues as presented.

Issue 1. Did HCUA deviate from the requirements laid down in its request for proposals by giving a contract to a bidder who did not have a representative at the mandatory pre-bid meeting?
Issue 2. Did HCUA violate Mississippi Code Annotated [section] 31-3-15 and Mississippi Code Annotated section 31-3-21 by accepting a bid submitted by two corporations “in association” when under the terns of the bid:
12% of the work would be performed by a corporation which had a certificate of responsibility, and 88% of the work would be performed by a corporation tuhich did not have a certificate of responsibility?

¶ 19. In its argument, WPSCO claims that “UP did not have a representative at the mandatory pre-bid meeting and UP was not qualified to do business in Mississippi — and, thus, did not have a certificate of responsibility on the date the bids were opened.” Therefore, WPSCO makes two separate arguments: UP did not comply with the request for proposals because it did not have a representative present at the mandatory pre-proposal meeting, and the contract between HCUA and SA/UP is void because UP did not have a certificate of responsibility.

¶ 20. In the RFP, HCUA stated that: “[a] mandatory pre-proposal meeting will be conducted ... [and] all proposers must be represented.” HCUA’s “mandatory pre-proposal meeting” was held on September 15, 2006. WPSCO and SA each had a representative in attendance. UP did not. WPSCO argues that UP was “a contractor” under Mississippi law, and under Mississippi law all “contractors” must be qualified prior to submitting a response, and to be qualified, a “contractor” must attend the mandatory pre-proposal meeting.

¶21. We note that the RFP also provided that: “The Authority reserves the right ... to waive any informalities deemed to be in the best interest of the Authority.” Therefore, because HCUA, in the RFP, reserved the right to waive any informalities deemed to be in the best interest of the authority, we find that HCUA had the power to waive UP’s nonattendance at the pre-proposal meeting. WPSCO cites no authority for the proposition that the failure to attend the pre-proposal meeting would deny a party the right to enter a bid or proposal. We find no reversible error in WPSCO’s Issue 1.

¶ 22. Next, WPSCO argues that the HCUA contract with SA/UP is void because UP did not have a certificate of responsibility, as required by Mississippi Code Annotated sections 31-3-15 and 31-3-21(1) (Rev.2006). Section 31-3-21(1) provides:

It shall be unlawful for any person who does not hold a certificate of responsibility issued under this chapter, or a similar certificate issued by another state recognizing such certificate issued by the State of Mississippi, to submit a bid, enter into a contract, or otherwise engage in or continue in this state in the business of a contractor, as defined in this chapter. Any bid which is submitted without a certificate of responsibility number issued under this chapter and without that number appearing on the exterior of the bid envelope, as and if herein required, at the time designated for the opening of such bid, shall not be considered further, and the person or public agency soliciting bids shall not enter into a contract with a contractor submitting a bid in violation of this section. In addition, any person violating this section by knowingly and willfully submitting a bid for projects without holding a certificate of responsibility number issued under this chapter, as and if herein required, at the time of the submission or opening of such bid shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00), or by imprisonment for not more than six (6) months, or by both such fine and imprisonment.

WPSCO argues that UP is a contractor because a “contractor” is defined by statute as “[a]ny person contracting or undertaking as prime contractor, subcontractor or sub-subcontractor of any tier to do any erection, building, construction, reconstruction, repair, maintenance or related work on any public or private project less than fifty thousand dollars ($50,000.00)[.]” Miss.Code Ann. § 31-3-1(a) (Rev.2006). Since UP was a contractor under Mississippi law, WPSCO claims that it had to have a certificate of responsibility. If it did not have a certificate of responsibility, UP may not be awarded a contract or any such contract awarded is “null and void.” Miss.Code. Ann. § 31-3-15.

¶ 23. HCUA responds that UP did not need a certificate of responsibility because the contract was a service contract and service contracts between a private contractor and a public agency do not require the contractor to have a certificate of responsibility. Accordingly, HCUA argues that the contract in issue here is not regulated under Title 31, Chapter 3 of the Mississippi Code.

¶ 24. A certificate of responsibility is needed to bid on all public or private construction projects in Mississippi unless the project is exempted by statute. Miss. Prac. Enc. Constr. Law, § 5 (2009). The definitions provided in section 31-3-1(a) clearly indicate that the certificate of responsibility statutes under Title 31, Chapter 3 govern what would most typically be referred to as construction projects.

¶ 25. Though neither the Legislature nor the appellate courts have addressed whether operation of a wastewater facility and interceptor system requires a certificate of responsibility, the Mississippi Attorney General has stated that a private company that is operating and maintaining the municipality’s water system under contract is not required to comply with the public purchasing statutes. Miss. Att’y Gen. Op. No. 2000-0673, 2000 WL 1899949, Snyder (Nov. 27, 2000). The Attorney General also found that contracts to extend the water system or make capital improvement do require that the municipality comply with statutes governing public construction. Id. In a separate opinion, the Attorney General opined that service contracts which involve non-construction work between a private contractor and a public body do not require the contractor to possess a certificate of responsibility. Miss. Att’y Gen. Op. No. 2001-0663, 2001 WL 1513805, Meadows (Oct. 26, 2001) (maintenance of public beach by private contractor does not require a certificate of responsibility).

¶ 26. The supreme court has upheld the Mississippi State Board of Contractors’ determination that a contractor was not required to possess a certificate of responsibility for a public contract if less than 50% of the services to be performed under the contract were not of a “maintenance” nature. Clancy’s Lawn Care & Landscaping, Inc. v. Miss. State Bd. of Contractors, 707 So.2d 1080, 1084 (¶ 14) (Miss.1997). There, the supreme court ruled that “[U]n-der Rule 2(b) of the Rules and Regulations of the Mississippi State Board of Contractors, the Board issues certificates of responsibility to contractors in the following classifications: building construction; highway, street and bridge construction; heavy construction; municipal and public works construction; electrical work; mechanical work; and specialty.” Id. at 1084 (¶ 14).

¶27. We find no authority to support the conclusion that UP was required to have a certificate of responsibility to operate and manage a wastewater facility and interceptor system. It was evident from the RFP and the proposals submitted that the operation and management of the facility was the major component of the project, not its maintenance. Although the RFP does ask for repairs to be made, the repairs contemplated were nothing more than routine and minor repairs. The contract at issue was not for building or constructing, which would require a certificate of responsibility. Accordingly, we find no reversible error in WPSCO’s Issue 2.

Issue 3. Did HCUA violate Mississippi Code Annotated section 31-7-13 subsection (c)(ii) and subsection (d)(i) by awarding a bid based on the perception that the chosen bidder was offering “extras” — items separate from and in addition to the items included in the specifications — when, in fact, these items were included in the specifications and were offered by other bidders?
Issue L Did HCUA violate Mississippi Code Annotated section 31-7-13 subsection (e)(ii) and subsection (d)(i) by awarding a bid based on the perception that the chosen bidder was offering “extras” — items separate from and in addition to the items included in the specifications — without amending the specifications and reopening the bidding so that all other bidders could offer revised bids which would include the “extras”?

¶ 28. In Issues 3 and 4, WPSCO claims that HCUA violated Mississippi Code Annotated sections 31—7—13(c)(ii) and (d)(i) (Rev.2006). This argument relates to “extras” that were contained in the SA/UP proposal but were not found in WPSCO’s proposal.

¶ 29. The treatment of the “extras” appears to be the same matter of concern in Issues 5, 6 and 7. Accordingly, we consider Issues 3 through 7 together.

Issue 5. Did HCUA act arbitrarily and capriciously by assigning a supposed market values [sic] to the “extras” offered by SA/UP without obtaining any information concerning the current market value of these “extras”?
Issue 6. Did HCUA violate Mississippi Code Annotated section 31-7-13(d)(ii), by failing to adequately explain the calculations used to “adjust” WPSCO’s bid upward and by failing to explain the purported sav ings which HCUA relied upon in deeming the SAJUP bid to be the lowest bid?
Issue 7. Is there any justification for HCUA’s decision to accept the SA/UP bid and reject the WPSCO bid?

¶ 30. Section 31-7-13 provides the requirements for public purchases:

All agencies and governing authorities shall purchase their commodities and printing; contract for garbage collection or disposal; contract for solid waste collection or disposal; contract for sewage collection or disposal; contract for public construction; and contract for rentals as herein provided.
(c) Bidding procedure for purchases over $50,000.00....
(ii) Bidding process amendment procedure. If all plans and/or specifications are published in the notification, then the plans and/or specifications may not be amended. If all plans and/or specifications are not published in the notification, then amendments to the plans/specifications, bid opening date, bid opening time and place may be made, provided that the agency or governing authority maintains a list of all prospective bidders who are known to have received a copy of the bid documents and all such prospective bidders are sent copies of all amendments. This notification of amendments may be made via mail, facsimile, electronic mail or other generally accepted method of information distribution. No addendum to bid specifications may be issued within two (2) working days of the time established for the receipt of bids unless such addendum also amends the bid opening to a date not less than five (5) working days after the date of the addendum.
(d) Lowest and best bid decision procedure.
(i) Decision procedure. Purchases may be made from the lowest and best bidder. In determining the lowest and best bid, freight and shipping charges shall be included. Life-cycle costing, total cost bids, warranties, guaranteed buy-back provisions and other relevant provisions may be included in the best bid calculation. All best bid procedures for state agencies must be in compliance with regulations established by the Department of Finance and Administration. If any governing authority accepts a bid other than the lowest bid actually submitted, it shall place on its minutes detailed calculations and narrative summary showing that the accepted bid was determined to be the lowest and best bid, including the dollar amount of the accepted bid and the dollar amount of the lowest bid. No agency or governing authority shall accept a bid based on items not included in the specifications.
(m) Exceptions from bidding requirements. Excepted from bid requirements are:
(xxii) Garbage, solid waste and sewage contracts. Contracts for garbage collection or disposal, contracts for solid waste collection or disposal and contracts for sewage [sic] collection or disposal.
(r) Solid waste contract proposal procedure. Before entering into any contract for garbage collection or disposal, contract for solid waste collection or disposal or contract for sewage collection or disposal, which involves an expenditure of more than Fifty Thousand Dollars ($50,000.00), a governing authority or agency shall issue publicly a request for proposals concerning the specifications for such services which shall be advertised for in the same manner as provided in this section for seeking bids for purchases which involve an expenditure of more than the amount provided in paragraph (c) of this section. Any request for proposals when issued shall contain terms and conditions relating to price, financial responsibility, technology, legal responsibilities and other relevant factors as are determined by the governing authority or agency to be appropriate for inclusion; all factors determined relevant by the governing authority or agency or required by this paragraph (r) shall be duly included in the advertisement to elicit proposals. After responses to the request for proposals have been duly received, the governing authority or agency shall select the most qualified proposal or proposals on the basis of price, technology and other relevant factors and from such proposals, but not limited to the terms thereof, negotiate and enter contracts with one or more of the persons or firms submitting proposals. If the governing authority or agency deems none of the proposals to be qualified or otherwise acceptable, the request for proposals process may be reinitiated.

¶ 31. WPSCO contends that HCUA violated sections 31-7-13(c) and (d) by not re-opening the bidding so that other bidders could modify their bids and by not stating the reasons for not choosing the lowest bid. HCUA responds that the “extras” were required in the RFP specifications and that WPSCO had the same opportunity as did SA/UP to specify exactly which services it had to offer and at what price.

¶ 32. WPSCO argues that HCUA should have re-opened the bidding pursuant subsection (e)(ii) and that HCUA violated subsection (d) by not choosing the lowest and best bid. However, we find that neither subsection (c)(ii) nor (d) applies to this contract. Subsections (c)(ii) and (d) apply to bidding requirements. This is a contract for a waste-water-treatment system and is specifically exempted from bidding requirements pursuant section 31-7-13(m)(xxii). In lieu of bidding requirements, an agency which contracts for waste collection or disposal must publish a request for proposals. Miss.Code Ann. § 31-7-13(r).

¶ 33. Next, WPSCO claims that HCUA acted arbitrarily and capriciously when the HCUA engineer evaluated the three “extras” as having a market value of between $28,000 and $35,000 and by adjusting WPSCO’s bid upward by $30,000. HCUA responds that these “extras” were not “extras” but were three differences between SA/UP and WPSCO’s proposals.

¶ 34. HCUA’s executive director Pahla-van evaluated the proposals and summarized the key differences. The differences he found were:

1) Every three years, SA/UP will use a third party to perform an infrared survey of all equipment and provide the Utility Authority with a written report of the findings. This service is valued [at] an estimated $10,000-$15,000.
2) SA/UP includes all costs for draw-down testing, performed by a professional engineer, are included in the proposal. This service is valued [at] an estimated $8,000-$10,000.
3) SA/UP will provide the use of a 10-15 ton boom truck with up to 55’ reach for removal of pumps and equipment, as well as said installation of such equipment is included. The Utility Authority spent approximately $10,000 for this service to be provided by vendors.

¶ 35. Pahlavan’s estimated adjustment of WPSCO’s bid was not arbitrary and capricious. WPSCO’s claims that he was not in the position to make the estimates and to assign a market value are unsupported by the evidence. WPSCO failed to cite any authority for its assertion. Pahla-van, as the executive director of HCUA and an experienced engineer, had the authority to compare the proposals and estimate the market price of the differences in the proposals. Accordingly, Pahlavan’s estimation of the price differences was not arbitrary and capricious.

¶ 36. Lastly, WPSCO argues that there was no justification in awarding SA/UP the contract because WPSCO’s proposal was the lowest price. However, the RFP stated that HCUA reserved the right to reject any proposal and “to award the contract to the offeror whose proposal is determined to be most advantageous to HCUA, taking into account price and other evaluation factors.” Accordingly, WPSCO and SA/UP were on notice that price would not be the deciding factor.

¶ 37. The Board listed the reasons it chose SA/UP, which included:

(1) the combination in one RFP of the plant operation and interceptor lines, which will facilitate smoother operation because of less employees, and could save money due to such combination and (2) the use of the boom truck, being more affordable and the use of which will substantially facilitate ongoing maintenance of pump stations.... The expression of qualifications, quality, and service and price of the RFP from S.H. Anthony and Utility Partners were factors considered by the board when it determined them the lowest and best alternative proposal.

¶ 38. Pursuant section 31-7-13(r), “the governing authority or agency shall select the most qualified proposal or proposals on the basis of price, technology and other relevant factors and from such proposals, but not limited to the terms thereof[.]” The price was just one factor for the Board to consider. The Board considered other factors such as efficiency, qualifications, and quality. Accordingly, we find that the record supports a finding that the Board’s decision was informed and based on substantial evidence. Accordingly, we find that Issues 3 through 7 have no merit.

¶ 39. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ROBERTS AND MAXWELL, JJ„ CONCUR. ISHEE AND CARLTON, JJ, NOT PARTICIPATING.

      . The RFP here was a contract for the operation and maintenance solid waste. A contract for the operation and maintenance of solid waste is exempt from bidding requirements. Miss.Code Ann. § 31-7-13(m)(xxii) (Supp.2009). "Before entering into any contract for garbage collection or disposal, contract for solid waste collection or disposal or contract for sewage collection or disposal, which involves an expenditure of more than Fifty Thousand Dollars ($50,000.00), a governing authority or agency shall issue publicly a request for proposals[.]” Miss.Code Ann. § 31-7-13(r).

      . Subsection (c)(i) only governs the advertising requirements for waste contracts. Miss. Code. Ann. § 31—7—13(r).


author: BARNES, J.,

text:
    Debra S. FIELD, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-00793-COA.
    Court of Appeals of Mississippi.
    Feb. 23, 2010.

      Edmund J. Phillips, Jr., Newton, P. Shawn Harris, Forest, attorneys for appellant.
    Office of the Attorney General by John R. Henry, Jr., attorney for appellee.
    Before KING, C.J., BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court:

¶1. On May 29, 2007, Debra S. Field was indicted on two counts stemming from drugs found in her car at a license and safety checkpoint: possession of cocaine in an amount more than .10 gram but less than 2 grams, and possession of marijuana in an amount less than 30 grams. Field was subsequently convicted of possession of marijuana; however, a mistrial was declared on the possession of cocaine charge as the jury was unable to reach a verdict. A second trial was held on April 16, 2008, and Field was convicted by a jury in the Newton County Circuit Court on a count of felony possession of cocaine and sentenced to eight years in the custody of the Mississippi Department of Corrections (MDOC). It is from this second conviction that Field now raises four issues on appeal: (1) whether the circuit court erred in sentencing Field to the maximum sentence allowable by law; (2) whether the circuit court erred in refusing to give a jury instruction which allegedly articulated Field’s theory of the case; (3) whether the circuit court erred in admitting evidence of other crimes; and (4) whether the search of the truck Field was driving was reasonable under the Fourth Amendment to the United States Constitution. Finding no error, we affirm Field’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 10, 2006, Newton County Sheriffs Deputy Toby Pinson (Deputy Pin-son) and his brother, Jeremy Pinson (Officer Pinson), a police officer from Hickory, Mississippi, established a license and safety checkpoint at about 3:00 p.m. According to Deputy Pinson, the checkpoint was authorized by Chief Deputy Sheriff Billy Pat Walker of the Newton County Sheriffs Department.

¶ 3. At about 3:20 p.m., a truck driven by Field arrived at the checkpoint and was stopped. Deputy Pinson asked Field for her driver’s license whereupon she informed the deputy that her license was suspended. Deputy Pinson detected the smell of alcohol and instructed Field to pull over to the side of the road. After Field complied, Deputy Pinson instructed her to step out of the truck and asked Field whether she had been drinking. Field informed Deputy Pinson that she had been “at the river” where she had a couple of drinks, prompting Deputy Pinson to ask if he could search her truck for alcohol. Field consented, telling Deputy Pinson that she did not care if he searched the truck because it did not belong to her. As Deputy Pinson searched the truck, Officer Pinson watched over Field.

¶4. During his search, Deputy Pinson noticed a purse and, inside the purse, a cigarette case. Deputy Pinson testified that within the cigarette case, and in his plain view, was a rolled-up marijuana joint. At this point, Deputy Pinson read Field her Miranda rights. After Field nodded that she understood her rights, Deputy Pinson asked whether the cigarette case belonged to her, wherein Field told the deputy that she forgot the joint was in the case.

¶ 5. Beyond the marijuana joint, the cigarette case held a plastic bag with a white rock substance, which was later proved to contain cocaine. Asked whether the white substance belonged to her, Field told Deputy Pinson that it did not. The officers then terminated the checkpoint as Field was taken into custody and transported to the Newton County Sheriffs Department.

¶ 6. On December 10, 2007, Field was found guilty of misdemeanor possession of marijuana and fined. As to the count of felony possession of cocaine, the jury was unable to reach a verdict, and the cause was continued until April 2008. At the April 2008 trial, Field testified that she and a group of friends had been camping along the Pearl River near Carthage, Mississippi when her van broke down. In an effort to arrange a tow, Field borrowed a truck from a friend and had started for Newton, Mississippi when she encountered the police checkpoint. While Field admitted that she consented to the search of the truck and that the cigarette case belonged to her, she continued to deny that the cocaine found in the cigarette case was hers, insisting that while camping other people had access to her purse.

¶ 7. During Deputy Pinson’s testimony, defense counsel made repeated objections concerning the witness’s revelation that Field was in possession of marijuana, arguing that any reference to this fact violated Mississippi Rule of Evidence 404(b). The court found that the evidence linking Field to the marijuana was admissible as its discovery led to the discovery of the cocaine. At this point, Field’s attorney moved to introduce evidence that the jury in the defendant’s first trial was unable to reach a verdict as to the charge of possession of cocaine. The circuit court denied this motion, holding that it was irrelevant. Field was found guilty of felony possession of cocaine and sentenced to serve eight years in the custody of the MDOC. She now appeals.

DISCUSSION AND ANALYSIS

I. Whether the circuit court erred in sentencing Field to the maximum sentence.

¶ 8. Field asserts that her sentence of eight years was disproportionate to the crime, considering both her age and status as a first-time offender. Urging that a sentence necessarily must be tailored to the offender and not simply the offense, Field argues that the circuit court erroneously believed it was required to sentence her to the maximum term of imprisonment, thus abdicating its role as a discretionary body. Field points to the circuit court judge’s expressed belief that he “had no choice ... but to sentence [Field] to a term of 8 years.” Further, Field argues that the sentence imposed falls within the reach of the Eighth Amendment’s prohibition against cruel and unusual punishment.

¶ 9. In turn, the State argues that only after careful deliberation of Field’s history of addiction, present employment, and existing family obligations did the circuit judge sentence Field to eight years. To this point, the judge’s “no choice” expression is reflective of all the facts involved in Field’s case rather than an abdication of discretion.

¶ 10. “Sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Wall v. State, 718 So.2d 1107, 1114 (¶ 29) (Miss.1998) (quoting Hoops v. State, 681 So.2d 521, 537 (Miss.1996)). The consistent rule in Mississippi is that a sentence that does'not exceed the maximum term allowed by statute will not be disturbed on appeal. Fleming v. State, 604 So.2d 280, 302 (Miss.1992). This Court, however, “will review a sentence that allegedly imposed a penalty disproportionate to the crime.” Nichols v. State, 826 So.2d 1288, 1290 (¶ 10) (Miss.2002).

¶ 11. The United States Supreme Court has established a three-prong test for an Eighth Amendment proportionality analysis, wherein courts need to balance the following factors: (i) “the gravity of the offense and the harshness of the penalty”; (ii) “the sentences imposed on other criminals in the same jurisdiction”; and (iii) “the sentences imposed for commission of the same crime in other jurisdictions.” Solem v. Helm, 463 U.S. 277, 290-92, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). However, to the extent that there exists a guarantee of proportionality within the Eighth Amendment, Solem has been overruled. Harmelin v. Michigan, 501 U.S. 957, 965, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). The Mississippi Supreme Court has noted that, in light of Harmelin, the factors articulated in Solem are to apply “only when a threshold comparison of the crime committed to the sentence imposed leads to an inference of ‘gross disproportionality.’ ” Hoops, 681 So.2d at 538 (citing Harmelin, 501 U.S. at 1005, 111 S.Ct. 2680). Absent this initial showing, Mississippi appellate courts will not apply the three-prong test from Solem. Williams v. State, 784 So.2d 230, 236 (¶ 15) (Miss.Ct.App.2000). “[A] sentence that is within the statutorily defined parameters of the crime, usually is upheld and is not considered cruel and unusual punishment.” Nichols, 826 So.2d at 1290 (¶ 12). Thus, “outside the context of capital punishment, successful challenges to the proportionality of a particular sentence will be exceedingly rare.” Clowers v. State, 522 So.2d 762, 765 (Miss.1988) (quoting Solem, 463 U.S. at 289-90, 103 S.Ct. 3001).

¶ 12. Section 41-29-139(c)(1)(B) of the Mississippi Code Annotated (Rev.2005) provides that any person who knowingly or intentionally possesses a Schedule II drug, such as cocaine, in an amount of more than .10 gram but less than two grams shall be sentenced to imprisonment for not less than two years but not more than eight years. Thus, the maximum sentence permitted under section 41-29-139(c)(1)(B) for possession of cocaine is eight years. The circuit court sentenced Field to eight years, which clearly is within the statutory authority. Further, although Field claims that she was a first-time offender, it was noted at Field’s sentencing hearing that she had been previously charged three times for driving under the influence (DUI) (which is why she did not possess a driver’s license), and that she was addicted to marijuana and alcohol. Accordingly, we find no inference of “gross disproportionality.” This assignment of error is without merit.

II. Whether the circuit court erred in refusing to give jury instruction D-2.

¶ 13. Field asserts that the circuit court erred in refusing to give jury instruction D-2, which reads:

The Court instructs the jury that the Defendant is a competent witness in his own behalf and his testimony should not be disregarded simply because he is the Defendant. The Defendant is clothed with the same mantel of credibility as all other witnesses that have testified before you and in considering your verdict, you are to give his testimony the same weight and credibility you would any other witness in the light of the evidence.

The Mississippi Supreme Court has held that “defendants are not entitled to an instruction which informs the jury that the defendant is a competent witness in his own behalf.” Baker v. State, 391 So.2d 1010, 1012 (Miss.1980). The Baker court reasoned that:

[The defendant’s] competency as a witness was evident by his appearance on the witness stand. If he had not been competent, he would not have been permitted to testify. There is no sound reason for a trial court to instruct a jury that any witness, including the defendant, is a competent witness. The jury, in its search for truth, is the sole judge of the worth and weight of the testimony of any witness, and should be free to make this judgment without instructions singling out or pointing to any particular witness stating such witness is competent.

Id.

¶ 14. An instruction, similar in form to the one here, was deemed improper in Gates v. State, 936 So.2d 335, 338 (¶ 9) (Miss.2006), because it singled out the testimony of a particular witness. The instruction in Gates read:

The Court instructs the jury, that under the law, the Defendant is a competent witness in his own behalf, and that the Jury has no right to disbelieve him merely because he is a Defendant, and his testimony is entitled to such weight, faith, and credit as the Jury may think proper to give it.

Id. at (¶ 8). In keeping with the reasoning articulated in Baker, the Gates court held that the defendant’s requested instruction informing the jury of his competency to testify was properly denied. Id. at (¶ 10) (citing Baker, 391 So.2d at 1012). Accordingly, this assignment of error is without merit.

III. Whether the circuit court erred in admitting evidence of other crimes.

¶ 15. We review a circuit court’s ruling on the admission or exclusion of evidence under an abuse of discretion standard. Lewis v. State, 905 So.2d 729, 732 (¶ 7) (Miss.Ct.App.2004). “Where error involves the admission or exclusion of evidence, this Court ‘will not reverse unless the error adversely affects a substantial right of a party.’ ” Id. (quoting Whitten v. Cox, 799 So.2d 1, 13 (¶ 27) (Miss.2000)).

A. Whether the circuit court emd in admitting evidence that Field was in possession of marijuana.

¶ 16. Field asserts that the circuit court ordered that any evidence concerning her charge of possession of marijuana be excluded at trial. To this point, Field highlights a pretrial conference between the relevant parties and the circuit court wherein the court apparently instructed the parties that evidence of marijuana would not be discussed:

Mr. Harris: Your Honor, just don’t want any issue of marijuana in this one.
The Court: All right. The Court, of course, will instruct — not going to make ’em comment on it, but the Court has already been advised that the only issue is the cocaine. So I don’t know any other way to do it, meaning I don’t want to call attention to anything in front of the jury, so—

Field argues that both the circuit court’s instruction and Mississippi Rule of Evidence 404(b) act to shield the defendant from any discussion about the marijuana. In December 2007, Field was found guilty of possession of marijuana; however, the jury was unable to reach a verdict with respect to the possession of cocaine charge. Field asserts that her possession of marijuana charge is evidence of a separate crime, distinct from the possession charge at issue.

¶ 17. Generally, “[e]videnee of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” M.R.E. 404(b). Our supreme court, however, has found that:

Proof of another crime is admissible where the offense charged and that offered to be proved are so interrelated as to constitute a single transaction or occurrence or a closely related series of transactions or occurrences. Such proof of another crime is also admissible where it is necessary to identify the defendant, where it is material to prove motive, and there is an apparent relation or connection between the act proposed to be proved and that charged, where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge.

Jones v. State, 920 So.2d 465, 474 (¶ 28) (Miss.2006) (emphasis added) (quoting Underwood v. State, 708 So.2d 18, 31-32 (¶ 41) (Miss.1998)) (internal citation omitted). Furthermore, “the State has a ‘legitimate intérest in telling a rational and coherent story of what happened.’... Where substantially necessary to present to the jury ‘the complete story of the crime[,]’ evidence or testimony may be given even though it may reveal or suggest other crimes.” Id. at (¶ 29) (quoting Ballenger v. State, 667 So.2d 1242, 1257 (Miss.1995)).

¶ 18. At trial, Deputy Pinson testified that after he secured Field’s consent to search the truck, he discovered a marijuana cigarette in a cigarette case in the defendant’s open purse. Following Field’s admission that the marijuana was hers, Deputy Pinson looked inside the cigarette case and discovered a white rock substance inside a plastic bag. Defense counsel moved repeatedly for a mistrial stressing that the marijuana charge and the cocaine charge were two distinct crimes.

¶ 19. The circuit court, in considering the defense’s motion, found that reference to the fact that marijuana was found in the truck was necessary to provide the jury with a complete story of the crime. Deputy Pinson’s discovery of the marijuana justified his search of Field’s cigarette case. Even if the marijuana showed evidence of a separate crime, its introduction at trial was necessary to provide context for Deputy Pinson’s ultimate discovery of the cocaine. “Relevant evidence is that which makes more likely the existence of a fact that is of consequence to the proceedings.” Hunt v. State, 877 So.2d 503, 511 (¶ 39) (Miss.Ct.App.2004) (emphasis added) (citing M.R.E. 401). As the marijuana and the cocaine were in the same container -within Field’s purse, the discovery of the marijuana led to Deputy Pinson’s discovery of the cocaine at issue in the second trial. Further, Field’s admission that the marijuana was hers demonstrated that it was more likely that the cocaine was also Field’s as she had control of the container in which both drugs were discovered. Accordingly, we find no abuse of discretion by the circuit court judge in allowing this evidence to be introduced to the jury.

B. Whether the circuit court erred in refusing to admit evidence that the jury in Field’s prior trial was unable to reach a verdict.

¶ 20. In her previous trial, Field was convicted of possession of marijuana; however, the jury was unable to reach a verdict with respect to the cocaine charge. Field asserts that because the circuit court allowed the introduction of her possession of marijuana and her subsequent conviction which resulted from the previous trial, the court “opened the door” to the introduction of evidence that the first trial resulted in a mistrial as to the cocaine charge.

¶ 21. Evidence, which is otherwise inadmissible, may be properly presented where the defendant has “opened the door.” Gunnell v. State, 750 So.2d 1284, 1286 (¶ 12) (Miss.Ct.App.1999) (citing Washington v. State, 726 So.2d 209, 216 (¶ 34) (Miss.Ct.App.1998)). Thus, in a general sense, “a defendant cannot complain of the evidence which he himself brings out.” Weaver v. State, 996 So.2d 142, 145-46 (¶ 11) (Miss.Ct.App.2008) (quoting Pruitt v. State, 807 So.2d 1236, 1241 (¶ 14) (Miss.2002)). In this light, Field urges that because the circuit court admitted evidence of marijuana possession, it “opened the door” to further evidence regarding Field’s previous trial.

¶ 22. In the instant case, it was the State that “opened the door” to evidence concerning the possession of marijuana. Further, the circuit court properly held that the evidence of marijuana possession fell neatly within the exceptions of Mississippi Rule of Evidence 404(b). However, we fail to see how evidence, which was admitted to provide the jury with a better understanding of why Deputy Pinson searched the defendant’s cigarette case, “opened the door” to evidence of a hung jury in Field’s previous trial. The fact remains that evidence must be relevant before a eourt can address the issue of its admissibility. “Under Rule 402 [of the Mississippi Rules of Evidence], evidence ‘which is not relevant is not admissible.’ ” King v. State, 580 So.2d 1182, 1189 (Miss.1991). It was for the second jury to determine the credibility of all the evidence and testimony offered. Evidence that an earlier jury was unable to reach a decision is simply not relevant as it does not make it more or less likely that Field knowingly possessed the drugs in question. Instead, admission of this evidence would only frustrate or improperly influence the deliberations of the later jury. This assignment of error is without merit.

IV. Whether the search of the truck that Field was driving was reasonable.

¶ 23. The State argues that because Field did not designate the search of the truck as an issue in her “statement of the issues,” she is precluded, under Mississippi Rule of Appellate Procedure 28(a)(3), from arguing this point. Presumably out of caution, however, the State did address the merits of this issue in its brief. Field also addresses this issue, albeit only in the body of her brief. In this light, and considering the constitutional question implicated, we excuse the briefing error as harmless and move to discuss the merits of her argument.

¶ 24. Field contends that because the police checkpoint did not comport with the written policy directives of the Newton County Sheriffs Department, any search emanating from the checkpoint was invalid. Specifically, Field asserts that policy requires the presence of a supervisor to oversee the checkpoint and that three sheriffs department officers participate. Because neither Deputy Pinson nor Officer Pinson held the necessary authority to oversee the checkpoint, and because they were the only two officers present, Field argues that both the checkpoint and subsequent search of the truck were invalid.

¶ 25. A seizure within the meaning of the Fourth Amendment occurs when a vehicle is stopped at a police checkpoint. Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 450, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (citing United States v. Martinez-Fuerte, 428 U.S. 543, 556, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976)). The fundamental question then becomes whether such seizures are reasonable. Id. The reasonableness of a given police checkpoint is measured by balancing its intrusion on an individual’s Fourth Amendment interests against the checkpoint’s promotion of a “legitimate governmental interest[ ].” Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). To this end, “the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). Additionally, the United States Supreme Court has held that fixed checkpoints, compared to roving patrols, need be viewed in a different light because “[a]t traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.” United States v. Ortiz, 422 U.S. 891, 894-95, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975).

1126. Field alleges that the checkpoint was invalid solely because the officers involved failed to adhere to departmental policy. To this point, she relies on a decision by the United States Court of Appeals for the Sixth Circuit which concluded that, where policy directives for checkpoints exist, they should be followed. United States v. Huguenin, 154 F.3d 547 (6th Cir.1998). We find that the application of this rule to the present facts is misplaced. In Huguenin, the appellate court held that a checkpoint set up under the pretext of ensuring traffic safety, but actually designed to intercept narcotics, was unreasonable and ultimately unconstitutional. Id. at 553. With respect to procedural guidance, the court found the checkpoint was administered not under departmental policy, but rather by the individual officers in the field who were free to decide which motorists to stop and where and when the checkpoint would be set up. Id. at 562-63.

¶ 27. Here, Deputy Pinson testified that the legitimate purpose of the checkpoint was to check for valid driver’s licenses. The checkpoint was set up during daylight hours in a straightaway, and Deputy Pinson testified that the plan was to stop every vehicle, without exception, that they encountered at the checkpoint. Additionally, the checkpoint was authorized by Newton County Chief Deputy Sheriff Walker, a department supervisor. This Court has consistently held that the State does arguably have an interest in ensuring that drivers are properly licensed. Johnston v. State, 853 So.2d 144, 146 (¶ 5) (Miss.Ct.App.2003) (citing Briggs v. State, 741 So.2d 986, 989 (¶ 8) (Miss.Ct.App.1999)). A checkpoint set up for the specific purpose of checking driver’s licenses, valid tags, and insurance serves a legitimate public safety purpose; there fore, it does not violate a defendant’s right of protection against unreasonable searches and seizures. Hampton v. State, 966 So.2d 863, 866 (¶ 13) (Miss.Ct.App.2007). Further, the departmental policies were established to ensure safety in conducting a legitimate checkpoint. As already noted, the checkpoint was set up in daylight, on a straight thoroughfare, and there was a definitive plan established by the officers for checking vehicles. Field’s stop was conducted in a safe and reasonable manner. Thus, we find that any minor deviation from the departmental policy, in this instance, was reasonable under the circumstances and did not violate Field’s constitutional rights under the Fourth Amendment. Accordingly, we find that this assignment of error is without merit.

¶ 28. THE JUDGMENT OF THE CIRCUIT COURT OF NEWTON COUNTY OF CONVICTION OF POSSESSION OF COCAINE AND SENTENCE OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NEWTON COUNTY.

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

      . Although the circuit court judge did rule that Field’s conviction on the possession of marijuana charge could be admitted, this evidence was never brought before the jury.


author: ROBERTS, J.,

text:
    Marshall E. BELAGER-PRICE, Brenda C. Belager-Price, Brian E. Price, Retha A. Price, Richard Tucker, Carolyn Tucker, Aaron D. Puckett, Jr., Leslie Puckett and Mary Anne Narron, Appellants v. Richard LINGLE and Naomi T. Lingle, Appellees.
    No. 2008-CA-02102-COA.
    Court of Appeals of Mississippi.
    Feb. 23, 2010.

      Steven Craig Panter, Ronald Earl Stutz-man, Jr., attorneys for appellants.
    Ronald Henry Pierce, attorney for ap-pellees.
    Before KING, C.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Marshall E. Belager-Price, Brenda C. Belager-Price, Brian E. Price, Retha A. Price, Richard Tucker, Carolyn Tucker, Aaron D. Puckett, Jr., Leslie Puckett, and Mary Anne Narron (Narron) (collectively “the Homeowners”) instituted this action in the Chancery Court of Madison County, Mississippi, which denied their petition to enforce the protective covenants of Kristen Hills Subdivision (Kristen Hills) in Madison County against Richard M. Lingle (Richard) and Naomi T. Lingle (collectively “the Lingles”). The Homeowners also sought a permanent injunction against the Lingles’ construction and use of a horse barn on the Lingles’ lot in the Kristen Hills. The Homeowners alleged that the Lingles were in breach of the restrictive covenants of the neighborhood by constructing the large horse barn without first constructing the single-family residence. The Lingles filed a counterclaim asserting that the Homeowners were interfering with their right to quiet enjoyment of their property, and in response to the Homeowners’ suit, the Lingles argued that they intended to build a single-family residence on the property when their economic situation allowed them to move forward with the construction. The Lingles stated that due to the current economic situation, they had incurred some credit and financing difficulties, and they have had difficulty selling their two homes. After a trial on the merits, the chancellor, Special Judge Thomas Zebert, found that the covenant restricting the use of the lot for a single-family residence with appurtenances thereto was ambiguous. Therefore, the chancellor found that the protective covenants did not preclude the Lingles from construction and use of the horse barn. The chancellor also found that the Lingles intended to construct a single-family residence on the land at some future, but unknown, date. The Homeowners appeal and raise four issues. However, this ease can be resolved by addressing whether: (1) the chancellor erred in finding that the protective covenant was ambiguous, or (2) the chancellor erred as a matter of law in ruling that the Lingles’ intent to use the property for a single-family residence at some unknown date in the future could justify the Lingles’ non-conforming use in the interim period of time. We find that the protective covenant is not ambiguous relating to the requirement that the lot be used for residential purposes. However, we find the chancellor correctly ruled that the covenant does not require a house to be built before an appurtenance. Accordingly, the chancellor did not err in finding that the Lingles were not in breach of the covenant because they exhibited an intent to build a single-family residence in the future. Therefore, we affirm.

FACTS

¶ 2. On June 14, 2007, the Lingles purchased a lot in Kristen Hills, which encompassed approximately 9.26 acres. The Lingles’ warranty deed states in relevant part:

The subject property can only be used to build and construct only one single[-]family residence and appurtenances thereto (the term “single[-]family residence as used herein shall be construed to exclude among other things, hospitals, duplex houses, apartment houses, churches and schools and to exclude commercial and professional use, except a personal office in the home).

There is no dispute that the Lingles were aware of the protective covenants. Richard is an attorney, and his office prepared the warranty deed related to his property in Kristen Hills.

¶ 8. After purchasing the property, the Lingles began to construct a large horse barn and stone entranceway, and they enlarged the house pad where a house is to be built. The Lingles also placed a trailer on the property. Concerned over the presence of the trailer, disgruntled homeowners of Kristen Hills contacted Narron, one of the developers of Kristen Hills, and Narron contacted the Lingles in August 2007. Narron testified that Richard was quite rude over the telephone, and he told her that he had no intention of building a home on the property. She testified that Richard told her that he had built homes before, and it was a lot of trouble. She went on to state that he said that the barn would not prohibit someone from building a house on the property in the future. Narron further testified that Richard told her that he would not move the trailer. Nevertheless, at some point after Richard’s discussion with Narron, the Lingles removed the trailer from their property, and they continued with the construction of the horse barn.

¶ 4. After the controversy arose between Narron, Lingles, and the Homeowners, the Lingles sent a letter, dated October 23, 2007, to the Homeowners, with the exception of Narron, attempting to explain their intentions. Among other things, the letter stated that the Lingles “intend[ed] to build a house on the property at some point in the future. However, due to the slump in the real estate market, [they] [could not] predict a date upon which the house [would] be built.” The letter went on to state that the Lingles owned a house in Rankin County and one in Ridgeland, neither of which the Lingles expected to be a “quick sale.” The Lingles stated that “[i]n the meantime, it [was their] intention and desire to erect [their] horse barn on the property and move a couple of horses to the property as soon as possible.” The letter also stated that the barn the Lingles intended to build was thirty-eight feet by forty-eight feet, would cost approximately $100,000, and it would not be readily visible from Gluckstadt Road. The record reflects that the Homeowners do not take issue with the appearance of the barn.

¶ 5. Although the letter from the Lingles to the Homeowners did not discuss the death of the Lingles’ seventeen-year-old son, testimony established that the Lingles had suffered the tragic and unexpected death of their son in January 2007. The Lingles had returned home to find their son dead in the home’s kitchen. As a result of that tragedy, the Lingles had moved out of their home in Rankin County, lived in an extended-stay hotel for a couple of months, and then purchased a residence in Ridgeland, Mississippi. These events transpired within six months of the time the Lingles purchased the lot in Kristen Hills. At the time of the chancellor’s opinion, the Lingles’ home in Rankin County had been on the market since 2007, and its price had been reduced by $75,000 in an effort to expedite its sale.

¶ 6. The Homeowners agree there is no problem with the Lingles having a horse barn on the Lingles’ property as long as there is a primary residence for which the barn may be an appurtenance to. Further, the Homeowners argue that the language of the protective covenants is not ambiguous. In other words, the Homeowners assert that the covenant instructs that a home must be built first or at least simultaneously with other structures in order to be in compliance. The chancellor agreed that this was one interpretation of the covenant, but he determined that it was a narrow interpretation, and that another reasonable interpretation was that the barn, or similar structure, could be appurtenant to the land. Stated specifically, the chancellor found “that reasonable minds [could] reach different conclusions to the meaning of the restriction at issue.... ” Therefore, he construed the restrictions in favor of the Lingles. Furthermore, the chancellor found the protective covenant to be ambiguous in that it did not state the order that such structures must be built.

DISCUSSION

I. WHETHER THE CHANCELLOR ERRED IN FINDING THE PROTECTIVE COVENANT WAS AMBIGUOUS.

¶ 7. “Questions concerning the construction of contracts are questions of law that are committed to the court rather than questions of fact committed to the fact-finder. The standard of review for questions of law is de novo.” Parkerson v. Smith, 817 So.2d 529, 532 (¶ 7) (Miss.2002) (internal citations and quotations omitted). If a contract is determined to be ambiguous, it is reviewed on appeal under a substantial evidence/manifest error standard. Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 752 (¶ 8) (Miss.2003) (citation omitted).

¶ 8. This Court utilizes a three-tiered approach to contract construction, and the legal purpose and intent should first be sought in an objective reading of the words employed in the contract to the exclusion of parol or extrinsic evidence. One South, Inc. v. Hollowell, 963 So.2d 1156, 1162 (¶ 10) (Miss.2007) (citation omitted). “First, the ‘four[-]corners’ test is applied, wherein the reviewing court looks to the language that the parties used in expressing their agreement.” Id. (citation omitted).

¶ 9. Under this approach, the entire contract is examined as a whole, and particular words and phrases do not necessarily control. Pursue Energy Corp. v. Perkins, 558 So.2d 349, 352 (Miss.1990) (quoting Mounger v. Pittman, 235 Miss. 85, 88, 108 So.2d 565, 567 (1959)). Furthermore, the four-corners doctrine calls for construction through application of correct language usage and English definitions, and the instrument should be construed in a manner which makes sense to an intelligent layman familiar only with the basics of the English language. Id. Only if the contract is unclear or ambiguous can the court go outside the “four corners” of the contract to determine the parties’ intent. One South, Inc., 963 So.2d at 1162 (¶ 10) (citation omitted).

¶ 10. Second, if the parties’ intent is not determined from the “four-corners” approach, then the court should apply the discretionary canons of contract construction. Id. Any ambiguities in the contract must be construed against the party who drafted it. Wade v. Selby, 722 So.2d 698, 701 (¶ 9) (Miss.1998) (citation omitted). Third, if a clear meaning still cannot be determined after applying the discretionary canons of contract construction, then the court can consider extrinsic or parol evidence. One South, Inc., 963 So.2d at 1162-63 (¶ 10) (citation omitted). Utilizing this framework, we discuss the chancellor’s ruling.

Can a bam or outbuilding be an “appurtenance” in the absence of a residence or other primary building?

¶ 11. The Homeowners rely upon the case of Gast v. Ederer, 600 So.2d 204, 207 (Miss.1992) to support their argument that the Lingles’ barn cannot be an appurtenance in compliance with the protective covenants in the absence of a single-family residence. In response, the chancellor and the Lingles state that Gast is inapplicable. The protective covenants at issue in Gast prohibited any type of outbuilding other than a single-family residence or a garage. Id. at 205. The covenant at issue in Gast read as follows:

LAND USE AND BUILDING TYPE: No lot shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one detached single[-]family dwelling not to exceed two stories in height and a private garage for not more than two cars.

Id. at 207. The supreme court affirmed the chancellor’s decision to require Frederic Gast to remove the boathouse from his property because the covenant specifically stated that there was to be nothing but a family dwelling and a garage for no more than two cars. Id. at 207-08. Although the specific facts, which required Gast to remove the boathouse, were somewhat different than the case at hand, Gast still offers guidance.

¶ 12. First, we consider the relevant language of the protective covenant at issue in the instant case. It states: “The subject property can only be used to build and construct only one single[-]family residence and appurtenances thereto....” As mentioned, the chancellor determined that the Homeowners’ interpretation that an outbuilding, such as a barn, must be “appurtenant to” a residence was one interpretation, but it could also be that the barn or other outbuilding was “appurtenant to” the land. Gast offered an argument quite similar to the chancellor’s interpretation of the covenant. Gast argued that “he did not violate the ‘land[-]use and building[-]type’ covenant because he erected the boathouse as a reasonable and incidental use of the neighborhood lot.” Id. at 207 (emphasis added). The supreme court stated that Gast “missed the mark, [and] ... such additional use must be incidental to some residential purpose.” Id. (emphasis added). The supreme court went on to rely on Sutherland v. Bock, 688 P.2d 157, 158 (Wyo.1984), wherein the Wyoming Supreme Court upheld an injunction finding that “a separate ‘outbuilding’ could not exist on the property absent a single-family residence.” Gast, 600 So.2d at 204. The supreme court quoted the Wyoming Supreme Court as follows:

Clearly, the protective and restrictive covenants contemplate that a residence is to be the principal building on the premises. The residence could exist without an outbuilding, but an outbuilding cannot legally be constructed independent of a residence. Stated another way, a residence cannot be incidental [or appurtenant] to an outbuilding.

Id. Just as in Gast, we find that a layman familiar only with the basics of the English language would understand the covenant to restrict the use of the Lingles’ lot to a single-family residence and appurtenances to that residence.

¶ 13. The word “thereto” is defined as: “To that, this, or it” or “In addition to that; furthermore.” The American Heritage College Dictionary 1407 (3rd ed. 1997). Given this definition, it is clear that the average person would construe the covenant at issue as follows: “The subject property can only be used to build and construct only one single[-]family residence and appurtenances [to that residence].”

¶ 14. A.A. Home Improvement Co. v. Hide-A-Way Lake Club, Inc., 393 So.2d 1333 (Miss.1981) is also analogous to the instant case. In A.A. Home Improvement, the property owner was using the lot for the purpose of creating a thoroughfare from one neighborhood to the next without building a residence. Id. at 1335. The supreme court stated that: “There is no ambiguity in the expression ‘[n]o lot shall be used for other than residential purposes.’ ” Id. at 1336. Therefore, the supreme court found the property owner to be in violation of the covenant because “[i]t [wa]s obvious that the use of [the][l]ot ... on which there [wa]s no residence as a connecting roadway to an adjoining subdivision [wa]s not in any sense a residential use or a use incidental thereto.” Id. at 1337 (emphasis added).

¶ 15. Likewise, the language that the “subject property can only be used to build and construct only one single[-]family residence and appurtenances thereto .... ” clearly notified the Lingles, or any other purchaser of property in Kristen Hills, that the lot is to be used for residential purposes, not merely for some other purpose. In order for the Lingles to be in compliance with the covenants, any structures must be related to a residence. Any other reading of the covenant implies that a purchaser can utilize the lots for temporary recreational or storage purposes or any other purpose short of some type of commercial activity. Such a reading would be a strained interpretation of the residential-subdivision covenant.

¶ 16. Are we to assume that the average layperson familiar with the English language would understand the covenant at issue to endorse the use of the property merely for a tennis court? How about a swimming pool? In essence, the reading that the Lingles propose supports the idea that the lot could be used to accommodate their own personal club, equestrian center, or storage facility without ever having to use it as a residence. We do not find this interpretation to reflect the intent clearly portrayed in the covenant.

¶ 17. The chancellor also found that the covenant was ambiguous in that it did not specify an order which the residence and barn should be built, and that the Lingles intended to build a home in the future. Although we do not find that the covenant is ambiguous in its requirement to build a residence, it does not state that the home must be built before a barn, fence, pool, etc. Therefore, the timing of the construction of structures is the only ambiguity. With this in mind, we consider the second issue.

II. WHETHER THE CHANCELLOR ERRED AS A MATTER OF LAW IN RULING THAT THE LIN-GLES’ INTENT TO USE THE PROPERTY FOR A SINGLE-FAMILY RESIDENCE AT SOME UNKNOWN DATE IN THE FUTURE COULD JUSTIFY THE LINGLES’ NON-CONFORMING USE IN THE INTERIM.

¶ 18. It is well settled that the findings of a chancellor or a circuit court judge, sitting without a jury, will not be reversed on appeal where they are supported by substantial, credible, and reasonable evidence. Phillips v. Miss. Dep’t of Pub. Safety, 978 So.2d 656, 660 (¶ 13) (Miss.2008) (citation omitted). Despite conflicting testimony between Richard and Narron, the chancellor determined that the Lingles had demonstrated the intent to build a home, and “if Petitioner Narron had desired to prohibit the construction of a horse barn before the completion of a residence, this could have easily been accomplished by drafting a clear prohibition in the restrictive covenants.” The chancellor was correct. Any ambiguities in the contract must be construed against the party who drafted it. Wade, 722 So.2d at 701 (¶ 9) (citation omitted). The chancellor also considered the following evidence to support his decision not to enjoin the Lingles from building their horse barn because he found that they had the intent to eventually build a home.

¶ 19. Following a pretrial conference held on October 8, 2008, the chancellor, accompanied by the Lingles and the attorneys for the parties, went to the Lin-gles’ property to view it and the surrounding area. The chancellor found, among other things, that the Lingles had expanded the “house pad” on which a house would, or could, be located. The “house pad” had been originally created by the former property owner. Additionally, the Lingles had built a very upscale stone entrance to the property, and the chancellor stated that “[i]t [was] difficult to believe that such an expensive stone entrance would be built for just a barn.”

¶ 20. The chancellor also noted, that the horse barn the Lingles were constructing was very large and expensive. Further, the chancellor discussed the fact that the Lingles have other property which they claim a deduction each year as farm property, yet they have not done so with this property because Richard testified that he intended to use it for residential purposes. The chancellor also considered the letter the Lingles sent to the Homeowners, which stated that they did intend to build a home in the future. Finally, the chancellor considered the legitimate economic concerns that Richard testified about — namely not being able to sell his two existing homes and credit and lending issues.

¶ 21. Furthermore, we note that the time between the Lingles’ purchasing the property and the lawsuit is relatively short. The Lingles purchased the property on June 14, 2007, and the Homeowners filed their petition to enforce the covenant on Apxil 29, 2008, less than eleven months later. In other words, the Homeowners pursued this suit without affording the Lingles a reasonable opportunity to build a home. The record reflects that the chancellor had substantial, credible, and reasonable evidence before him in which he could determine that the Lingles’ intentions were to build a home on the property.

¶ 22. The record reflects that it was objectively reasonable for the chancellor to find that the Lingles intended to build a home when their financial situation improved. In these precarious financial times, the chancellor did not err in declining to impose a time limit in which the Lingles must complete their home and any other improvements they may add to the property, nor did he err in denying an injunction to prohibit them from using the property for their horses. As noted in the chancellor’s ruling, other property owners of the subdivision have barns and/or detached outbuildings similar to the barn the Lingles are constructing. Also, the record reflects that other property owners have horses on their property. The chancellor also stated that Narron, one of the developers of Kristen Hills, testified that developers “intended for homeowners to have horses and barns.” We see no error in the chancellor’s ruling to deny the injunction to prevent the Lingles from using the lot for their horses until they build their home.

¶ 23. This brings us to the timing aspect imbedded within the restrictive covenant at issue. It has been acknowledged by the supreme court and this Court numerous times: “We affirm where an agency or lower court reaches the right result for the wrong reason.” Falco Lime, Inc. v. Mayor and Aldermen of City of Vicksburg, 836 So.2d 711, 725 (¶ 62) (Miss.2002) (citation omitted). Although we do not find the covenant ambiguous in that it requires a property owner to use the property for residential purposes, we find that the chancellor did not commit manifest error in ruling that the barn may be built and used prior to the construction of a residence or home. However, we emphasize that we do not find that the covenant at issue allows a property owner to utilize the property indefinitely without constructing a residence.

¶ 24. It is to be remembered that when “construing restrictive covenants, the question is primarily one of intention, and the fundamental rule is that the intention of the parties as shown by the agreement governs, being determined by a fair interpretation of the entire text of the covenant.” A.A. Home Imp. Co., 393 So.2d at 1336. Additionally, when ambiguity is found in a restrictive covenant the general rule is that it is shall “be construed most strongly against the party seeking to enforce the restriction.” COR Devs., LLC v. College Hill Heights Homeowners LLC, 973 So.2d 273, 286 (¶ 15) (Miss.Ct.App.2008) (citing City of Gulfport v. Wilson, 603 So.2d 295, 299 (Miss.1992)). We find that a fair interpretation of the agreement between the parties indicate that the lots of Kristen Hills are to be for people to reside there, not just visit. However, because the covenant is ambiguous as to when the physical residence must be built in temporal relation to any appurtenances built thereto, we hold that the residence must be built within an objectively reasonable time period after commencing construction of any appurtenances on the subject property in order to satisfy the requirements of the covenant. Therefore, we do not hold that the chancellor’s ruling prohibits the Homeowners of Kristen Hills, present or future, from legally revisiting this issue based upon the interpretation of the chancellor and this Court of the restrictive covenant at issue. That is to say, should an inordinate, and objectively unreasonable, amount of time lapse with no effort by the Lingles to move forward with the construction and completion of a home, the Homeowners may bring this issue to the attention of the courts once again. The facts, and therefore the issue, would be different from the case sub judi-ce.

¶ 25. For the foregoing reasons, we find that the record supports the chancellor’s determination that the Lingles intend to comply with the covenants. Accordingly, we affirm the chancellor’s ruling but hold that the restrictive covenant at issue is not ambiguous as to the requirement to build a residential home, but it is ambiguous as to the timing of the construction of that home in relation to the construction of any appurtenances to it.

¶ 26. THE JUDGMENT OF THE CHANCERY COURT OF MADISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, GRIFFIS AND BARNES, JJ., NOT PARTICIPATING.

      . Mary Anne Narron is not a resident of Kristen Hills, but she was a general partner of Cherry Hill Plantation, Limited Partnership, which is the developer of Kristen Hills, and she joined the Homeowners' suit in that capacity. Both Narron and Richard Lingle are attorneys.

      . Naomi Lingle was present at trial, but she did not testify. The record reflects that communications between the parties were primarily between Richard and Narron individually or between Richard and various resident homeowners.

      . After the first two chancellors assigned to the case entered Orders of Recusal, the Mississippi Supreme Court appointed the Honorable Thomas Zebert as a Special Judge to preside over the case.

      . Although the record does not explicitly explain what the parties meant by "house pad,” it appears that it is part of the initial preparation for a home's foundation.