author: GRIFFIS, J.,

text:
    Christopher Joe DENNIS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-02113-COA.
    Court of Appeals of Mississippi.
    May 18, 2004.

      Christopher Joe Dennis, pro se.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. Christopher Joe Dennis pled guilty to one count of aggravated assault, three counts of burglary, and two counts of second degree arson. He was sentenced to serve a total of fifty years in the custody of the Mississippi Department of Corrections, with thirty-five years suspended, and five years’ probation. Dennis petitioned the trial court for post-conviction relief, which was denied. We find no error and affirm.

¶ 2. Although Dennis assigns fourteen errors, we are of the opinion that the allegations of error may be reduced to six issues.

ANALYSIS

I. Involuntary Plea

¶ 3. Dennis claims that his plea was involuntary. A plea is considered “voluntary and intelligent” if the defendant is advised about the nature of the charge and the consequences of the entry of the plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). The defendant must be instructed that a guilty plea waives his or her rights to a jury trial, to confront adverse witnesses, and to protection against self-incrimination. Id.

¶ 4. Dennis bears the burden of proving, by a preponderance of the evidence, that he is entitled to post-conviction relief. McClendon v. State, 539 So.2d 1375, 1377 (Miss.1989). “Once the trial judge has determined at a preliminary hearing that a confession is admissible, the defendant/appellant has a heavy burden in attempting to reverse that decision on appeal.” Sills v. State, 634 So.2d 124, 126 (Miss.1994) (quoting Frost v. State, 483 So.2d 1345, 1350 (Miss.1986)). “Such findings are treated as findings of fact made by a trial judge sitting without a jury as in any other context. As long as the trial judge applied the correct legal standards, his decision will not be reversed on appeal unless it is manifestly in error, or is contrary to the overwhelming weight of the evidence.” Foster v. State, 639 So.2d 1263, 1281 (Miss.1994).

¶ 5. First, Dennis claims that his plea was involuntary because he was never advised of his right against self-incrimination. Dennis’ plea petition contradicts this claim. The petition, signed by Dennis, clearly enumerated the rights that he would be guaranteed if he pled not guilty; the right against self-incrimination was included. In his plea transcript, the trial judge conducted a “face-to-face exchange in open court” with Dennis, to determine whether Dennis understood his rights. See Nelson v. State, 626 So.2d 121, 126 (Miss.1993) (holding the judge must conduct a face-to-face exchange in order to determine whether the accused knows and understands the rights to which he is entitled). The trial judge specifically explained that Dennis had the right to a jury trial, the right to call witnesses, and the right to testify or not testify on his behalf. The trial judge further explained that, if he chose not to testify, the jury would be informed that Dennis had the right to remain silent. Dennis acknowledged that he understood each of these rights. Accordingly, the plea petition and the transcript from the court’s acceptance of his plea contradict Dennis’ claim that he was not advised of his right against self-incrimination.

¶ 6. Second, Dennis asserts that he was not informed of the maximum and minimum penalties that he could face. Although the trial judge did not verbally state the maximum and minimum penalties during Dennis’ plea hearing, Dennis’ guilty plea petition recited the maximum and minimum sentences for burglary and arson, and the maximum sentence for aggravated assault. In Thompson v. State, 724 So.2d 1070, 1073-74 (¶ 14) (Miss.Ct.App.1998), we held that:

failure by a trial court specifically to inform a defendant of the maximum and minimum sentences may be harmless if the defendant was correctly informed by another source of or “if appears beyond a reasonable doubt that the plea would have been entered anyway.... ” State v. Pittman, 671 So.2d 62, 64 (Miss.1996). If a trial court fails to advise a defendant of a minimum sentence, the defendant must establish that he was misinformed and “that the case was misrepresented or the defendant expected to receive a lesser sentence.” Courtney v. State, 704 So.2d 1352, 1358 (Miss.Ct.App.1997).

¶ 7. Since Dennis was informed in his plea petition of the maximum and minimum sentences for burglary and arson, the trial judge’s failure to verbally state the possible sentencing range during the plea hearing was harmless. Thompson, 724 So.2d at 1073 (¶ 14). As to his claim that he was not advised of the minimum sentence for aggravated assault, Dennis has failed to establish that he was misinformed or that he expected to receive a lesser sentence due to the trial judge’s failure to inform him of the minimum sentence range.

¶ 8. Moreover, the supreme court has held that “[wjhere the statute specifies no minimum number of years of imprisonment, the judge is not obliged to inform the defendant that no minimum sentence is provided, or that the minimum penalty he faces is ‘zero.’ ” Bevill v. State, 669 So.2d 14, 18-19 (Miss.1996). A person convicted of aggravated assault is subject to serve “imprisonment in the county jail for not more than one (1) year or in the penitentiary for not more than twenty (20) years.”' Miss.Code Ann. § 97-3-7(2) (Rev.2000). Since this statute sets no minimum penalty, the trial judge was not obligated to inform Dennis of the minimum sentence for aggravated assault.

¶ 9. Third, Dennis claims that the trial judge erred by accepting a plea from him without arraignment on the charges for aggravated assault and burglary of a non-residence. Mississippi courts have consistently held that a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial. Anderson v. State, 577 So.2d 390, 391 (Miss.1991); Ellzey v. State, 196 So.2d 889, 892 (Miss.1967). By pleading guilty, Dennis waived his right to raise this challenge. Notwithstanding this waiver, Dennis filed a written waiver of indictment and consented that the proceeding may be by information.

¶ 10. Finally, Dennis claims that he never pled guilty to the charge of aggravated assault. The record does not support this claim. During the plea hearing, Dennis’ counsel confirmed that the criminal information on the aggravated assault charge was one of the charges to which Dennis was pleading guilty. The prosecution articulated the facts of each charge for the record, including the facts of the aggravated assault charge. The trial judge asked Dennis if he was pleading to “all of the matters” and later read a sentence for each of the charges, including aggravated assault.

¶ 11. Based on our review of the record, Brown entered a guilty plea to all of the charges in a manner that was knowing, voluntary, and intelligent. Therefore, Dennis’ claim that his plea was involuntary is without merit.

II. Sentencing

¶ 12. Dennis contends that the trial judge sentenced him to a longer sentence than allowed by law for each of his three convictions. Dennis also asserts that the judge erred in imposing one sentence for two separate crimes in each of his multi-count indictments.

¶ 13. Our supreme court has ruled that a defendant who has pled guilty may take a direct appeal from an aggrieved sentence. Trotter v. State, 554 So.2d 313, 315 (Miss.1989). This Court has further held that the failure to raise sentencing issues on direct appeal bars consideration of the issues in post-conviction relief. Swindle v. State, No.2001-CP-01668-COA (¶ 9), — So.2d -, 2003 WL 22708166 (Nov. 18, 2003). Dennis’ challenge to his sentence existed immediately after the sentencing hearing and was an appropriate issue for a direct appeal. Dennis’ failure to raise these issues on direct appeal precludes consideration in post-conviction relief proceedings. Id.

¶ 14. Nonetheless, our review of Dennis’ sentence reveals that no portion was in excess of the statutory maximum.

III. Ineffective Assistance of Counsel

¶ 15. Dennis claims that he received ineffective assistance of counsel. To support this claim, Dennis argues that his counsel presented him a blank plea petition to sign and stated that it was just a form' stating he was willing to take a plea. He contends that the plea petition was filled out after he signed it, without his knowledge, and it was presented to the court as his petition to enter a plea of guilty. In addition, Dennis claims that his counsel promised him that if he pled guilty he would receive a sentence of fifteen years. But for his expectation of a fifteen year sentence, Dennis claims that he would not have pled guilty.

¶ 16. Dennis failed to raise the issue of ineffective assistance of counsel and the supporting allegations in his motion for post-conviction relief before the circuit court. This Court will not address issues initially on appeal. Von Brock v. State, 794 So.2d 279, 281(¶ 6) (Miss.Ct.App.2001). The appropriate time to raise an ineffective assistance of counsel claim was on appeal to the circuit court in his petition for post-conviction relief. Accordingly, Dennis has waived his right to raise this issue.

¶ 17. The claim of ineffective assistance of counsel would also fail on its merits. To establish an ineffective assistance of counsel claim, Dennis must show (1) a deficiency of his counsel’s performance that was (2) sufficient to constitute prejudice to his defense. Swift v. State, 815 So.2d 1230 (¶ 17) (Miss.Ct.App.2001).

¶ 18. Mississippi Code Annotated Section 99-39-9 (Rev.2000) provides that motions for post-conviction relief should contain affidavits which include facts and state how or by whom these facts will be proven. Laushaw v. State, 791 So.2d 854 (¶ 14) (Miss.Ct.App.2001). Dennis failed to provide affidavits or other evidence that states the facts and evidence to support his allegations.

¶ 19. At the plea hearing, Dennis told the trial judge, under oath, that he was satisfied with his attorney’s representation. This Court places great weight upon the sworn testimony of a defendant given during a plea hearing and requires something more than mere assertions to disregard that testimony. Calvert v. State, 726 So.2d 228 (¶ 11) (Miss.Ct.App.1998).

¶ 20. Because no evidence has been presented to this Court to support Dennis’ allegation of ineffective assistance of counsel, we find no merit in this issue.

IV. Sentence Recommendation

¶ 21. Dennis claims that a sentence recommendation was made in violation of his plea agreement, which indicated that his plea was to be made without a recommendation from the prosecutor. He points to two different areas in the record to support this contention.

¶ 22. First, Dennis notes that the court stated, “[a]ceording to the recommendation of the State of Mississippi will be the sentence in these matters, and will adopt the same as an Order.” In making this statement, the trial judge was referring to the other defendant represented by the same counsel who was also pleading guilty at the same time. Therefore, this comment by the trial judge was not referring to Dennis and does not support Dennis’ claim.

¶ 23. Second, Dennis claims that the prosecutor made a sentence recommendation in violation of the plea agreement and that because of this, his plea is void. We quote the relevant exchange from the record:

MR. PARISH: This one right here in the orange. He’s 18 years of age. On Christopher J. Dennis, on all of these charges, he wishes to withdraw his former pleas of not guilty and also enter a plea of guilty to the criminal information. The agreement with the District Attorney’s office in these cases, Your Honor, is that we will request that a pre-sentence investigation be made by the Mississippi Department of Corrections, submitted to the Court, and that the Court will consider that in imposing whatever sentence that you deem appropriate. And they will not make a recommendation other than what’s contained in the Department of Corrections report. That’s to Mr. Dennis.
MR. STRICKLAND: Your Honor, we’ve made a recommendation that the total consisted of about twenty years to serve—
MR. PARISH: Please don’t get into that.
MR. STRICKLAND: We couldn’t reach an agreement then. But he wants to plead guilty in the blind subject to a recommendation of the Department of corrections. But we didn’t have an agreement in this case, other than if he wanted to plead, he could. And then let the court make its decision based on the recommendation of the Department of Corrections after the pre-sentence investigation.
MR. PARRISH: That’s correct.

¶ 24. A review of the entire exchange reveals that the prosecution’s mention of a recommendation was made in the context of explaining that no plea agreement had been reached and that Dennis’ plea would be open.

¶25. Next, Dennis complains that the trial judge erred in allowing the Mississippi Department of Corrections official to state a sentence recommendation. Dennis contends that the trial judge violated the Code of Judicial Conduct by allowing the Mississippi Department of Corrections official to give his pre-sentence report because the official was “advancing his private interests.”

¶ 26. Dennis argues that Uniform Circuit and County Court Rule 11.02 prohibited the official from giving a recommendation. The rule provides:

Upon acceptance of a plea of guilty, or upon a finding of guilt, and where the court has discretion as to the sentence to be imposed, the court may direct that a presentence investigation and report be made.
The report of the presentence investigation may contain, but is not limited to, the following information:
1. A description of the offense and the circumstances surrounding it, not limited to aspects developed for the record as part of the determination of guilt;
2. Any prior criminal convictions of the defendant, or juvenile adjudications of delinquency;
3. The defendant’s financial condition;
4. The defendant’s educational background;
5. A description of the employment background of the offender, including any military record and including present employment status and capabilities;
6. The social history of the defendant, including family relationships, marital status and residence history;
7. Information about environments to which the offender might return or to which the offender could be sent should probation be granted;
8. Information about special resources which might be available to assist the defendant such as treatment centers, rehabilitative programs or vocational training centers; and
9. A physical and mental examination of the defendant if it is ordered by the court.

(emphasis added).

¶27. Although the rule lists several items that may be included in a pre-sen-tence report, it does not prohibit a recommendation as Dennis claims. Moreover, Dennis agreed that his sentence would be based on the recommendation of the Department of Corrections after a pre-sen-tence investigation. Indeed, there is nothing in the record to support the claim that the Mississippi Department of Corrections’ official was “advancing his private interest.”

¶ 28. Dennis’ claim that the trial judge accepted sentence recommendations in violation of the plea agreement is without merit.

V. Hearing Procedure

¶ 29. Dennis contends the court erred in accepting pleas from Dennis and another defendant, who was represented by like counsel, during the same plea hearing. However, Dennis failed to raise this complaint in his motion for post-conviction relief before the circuit court. Consequently, this issue is procedurally barred and will not be considered for the first time on appeal. Coleman v. State, 772 So.2d 1101, 1103(¶ 8) (Miss.Ct.App.2000).

VI. Postr-Arrest Statement

¶ 30. Dennis contends that his post-arrest statement was unlawfully obtained. He asserts that the arresting officers coerced the statement since he was seventeen years old at the time of his arrest and no parental guardian was present.

¶ 31. A “valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial.” Anderson v. State, 577 So.2d 390, 391 (Miss.1991). Dennis, by pleading guilty, has waived this claim. This assignment of error is without merit.

¶ 32. THE JUDGMENT OF THE JONES COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO JONES COUNTY.

KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS AND CHANDLER, JJ., CONCUR.


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Emmanuel Rydell McKINLEY, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00518-COA.
    Court of Appeals of Mississippi.
    May 18, 2004.
    Ronald Stephen Wright, Ackerman, attorney for appellant.
    Office of the Attorney General by Charles W. Maris, attorneys for appellee.
    Before KING, C.J., THOMAS and MYERS, JJ.
   KING, C.J.,

for the Court.

¶ 1. Emmanuel Rydell McKinley was tried and convicted by a Choctaw County Circuit Court jury on four counts of aggravated assault. He was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections on each count, sentences to run consecutively. His post-trial motion for a new trial was denied and this appeal followed. His only allegation of error concerns two of the jury instructions.

FACTS

¶ 2. The facts contained in the following recitation are according to the State’s case, as McKinley chose not to put on any evidence and rested following the State’s case-in-chief.

¶ 3. McKinley and one of his victims, Carolyn Mosely, were involved in a romantic relationship. On the day of the assault, McKinley, Mosely, Mosely’s two children, and Mosely’s aunt, Lillian Ledbetter, were at Ledbetter’s home preparing for a surprise birthday party for Mosely’s mother. At one point during the evening, McKinley asked Mosely to step outside so that he could talk to her. Mosely went with him. During the course of the conversation McKinley asked Mosely for money, when she refused to give him any, he struck her in the mouth with his fist knocking her to the ground. As Mosely was getting up from the ground, Mosely’s daughter, Brittany, who was then twelve years old, heard the commotion and attempted to go to her mother’s aid. Mosely told the child to go back into the house. At that moment, McKinley produced a gun and shot Mosely in the left arm knocking her back to the ground. Brittany ran toward her mother, but Mosely shouted for her to run away. As the child turned to run, McKinley fired another gunshot which struck Brittany in the jaw and exited her neck. Nevertheless, the child was able to run to McKinley’s mother’s nearby trailer home to seek refuge. Mosely, in an attempt to escape further harm from McKinley, ran into a nearby wooded area and hid.

¶ 4. From her hiding place, Mosely saw McKinley leave the area of Ledbetter’s home and head in the direction of his mother’s trailer home. Growing faint from the loss of blood, Mosely decided to risk going back to her aunt’s house. There, she discovered that her son, Demi-chael and her aunt had both suffered gunshot wounds to the head.

¶ 5. At trial, Lillian Ledbetter testified about McKinley’s assault upon her. She testified that shortly after McKinley and Mosely went outside, she heard Brittany say that McKinley had shot her mother. Ledbetter went to see what was happening but by the time she made it outside there was no sign of either Brittany or Mosely. She said that as she turned to go back inside the house she was shot. The injuries to Mosely’s son, Demichael left him incompetent to testify about the details of his assault; however, Demichael was determined to be competent to testify as to the identity of his assailant and he identified McKinley as the shooter. Other witnesses testified that McKinley followed Brittany to his mother’s trailer home where she had gone to escape him. McKinley’s mother pleaded with him not to shoot the child again. All four victims survived the assault. Each, however, sustained serious life threatening and debilitating injuries.

¶ 6. McKinley gave a statement to local law enforcement officials that was recorded on audiotape. A transcript of the statement was admitted into evidence. In the statement he claimed to have been driven to his acts by his love for Mosely, whom he characterized as a drug-dealing, drug-addicted unfit parent who used and took advantage of him. When asked why he shot the children he claimed that they were disrespectful and he was “just mad.”

¶ 7. During the course of the assaults McKinley sustained a gunshot wound to his hand. In his statement to authorities he claimed that he shot himself when Mosely “rushed me with the gun.” He further claimed that “Brittany, I believe, and [Demichael] started just coming up and beating me in the face, and the gun really went off and accidentally shot Brittany.”

ANALYSIS

1. Jury instruction C-k

¶ 8. McKinley contends that jury instruction C-4 did not conform to law. The instruction reads as follows:

The defendant, EMMANUAL [sic] RYDELL McKINLEY, has been charged in a four count indictment with the crimes of Aggravated Assault.
If you believe from all the evidence in this case beyond a reasonable doubt that:
1. the defendant, on or about the 9th day of March, 2002, in Choctaw County, Mississippi, did unlawfully, felo-niously, purposely, and knowingly cause bodily injury to Carolyn Mosely,
2. with a deadly weapon, to-wit: a pistol, a means likely to produce death or serious bodily harm, and
3. the defendant was not acting in necessary self-defense, then you shall find the defendant guilty of Aggravated Assault in Count I of the indictment.
If the State failed to prove any one of the above elements beyond a reasonable doubt, then you shall find the defendant not guilty in Count I of the indictment.
In Count II, if you find from the evidence beyond a reasonable doubt that:
1. On or about March 9, 2002, in Choctaw County, Mississippi, the defendant EMMANUAL [sic] RY-DELL McKINLEY, did unlawfully, .willfully, feloniously, and purposely or knowingly cause bodily injury to Brittany Nicole Potts,
2. with a deadly weapon, to-wit: a pistol, a means likely to produce death or serious bodily harm, and
3. the defendant was not acting in necessary self-defense, then you shall find the defendant guilty of Aggravated Assault in Count I of the indictment.
If the State failed to prove any one of the above elements beyond a reasonable doubt, then you shall find the defendant not guilty in Count II of the indictment.
In Count III, if you find from the evidence beyond a reasonable doubt that:
1. on or about March 9, 2002, in Choctaw County, Mississippi, the defendant EMMANUAL [sic] RY-DELL McKINLEY, did unlawfully, willfully, feloniously, and purposely or knowingly, cause bodily injury to Lillian Ledbetter,
2. with a deadly weapon, to-wit: a pistol, a means likely to produce death or serious bodily harm, then you shall find the defendant guilty of Aggravated Assault in Count III of the indictment.
If the State has failed to prove any one or more of these elements beyond a reasonable doubt, then you shall find the defendant not guilty in Count III of the indictment.
In Count IV of the indictment, if you find from the evidence beyond a reasonable doubt that:
1. on or about March 9, 2002, in Choctaw County, Mississippi, the defendant EMMANUAL [sic] RY-DELL McKINLEY, did unlawfully, willfully, feloniously, and purposely or knowingly, cause bodily injury to De-michael Sirtemus Potts,
2. with a deadly weapon, to-wit: a pistol, a means likely to produce death or serious bodily harm, then you shall find the defendant guilty of Aggravated Assault in Count III of the indictment.
If the State has failed to prove any one or more of these elements beyond a reasonable doubt, then you shall find the defendant not guilty in Count IV of the indictment.

¶ 9. McKinley contends that the absence of language in Counts III and PV instructing the jury to find him not guilty if he was acting in necessary self-defense constitutes reversible error. There was no contemporaneous objection to the instruction at the time that it was given which waives the issue on appeal. Smith v. State, 724 So.2d 280 (¶ 143) (Miss.1998).

¶ 10. Procedural bar notwithstanding, there was no evidence presented at trial that McKinley was acting in self-defense when he shot Ledbetter and Demichael. In his appellate brief, McKinley cites to the claims in his taped statement that “De-michael had been in the house a long time and he knew guns were in the house and he feared Demichael was about to shoot him,” and that Ledbetter was “going towards her room to get a gun,” as proof that he acted out of fear for his life. The evidence showed, however, that each of these victims was shot inside the house while the first two victims were shot outside the house. As this Court held in Nolan v. Brantley, 767 So.2d 234 (¶ 16) (Miss.Ct.App.2000), a party is entitled to have his theory of the case presented to the jury by instructions, provided that the evidence supports that theory. Here the evidence clearly did not supp'ort McKinley’s theory of the case and the instructions that were granted were properly warranted by the evidence. This Court find no error.

2. Jury instruction C-5

Instruction C-5 reads as follows:

The court instructs the jury that to make an assault justifiable on the grounds of self-defense, the danger to the defendant must be either actual, present and urgent, or the defendant must have reasonable grounds to apprehend a design on the part of the victim to kill him or to do him some great bodily harm, and in addition to this he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground upon which the defendant acts.

¶ 11. McKinley claims that the instruction is a verbatim recitation of the instruction that was given in Robinson v. State, 434 So.2d 206 (Miss.1983), and therefore should have, but did not, conform to the dictates of Reddix v. State, 731 So.2d 591 (Miss.1999). The instruction was granted without an objection, therefore, McKinley alleges plain error. Since there was no contemporaneous objection to the instruction at the time that it was given, the issue is waived on appeal. Smith, 724 So.2d at (¶ 143). Procedural bar notwithstanding, this Court will briefly address the issue.

¶ 12. McKinley is correct that the instruction is almost verbatim the instruction in Robinson. However, the basis upon which the Mississippi Supreme Court found error in the Robinson instruction was as follows:

Instruction S-l fails to set out the essential elements of the crime of aggravated assault. Instruction S-l does not instruct the jury that it must find Red-dix attempted to cause or purposely or knowingly caused bodily injury to Bick-ham; it merely employs the language “committed an aggravated assault” but fails to define what constitutes an aggravated assault. And no other jury instruction given by the lower court sets out the elements of aggravated assault. We conclude the jury was not instructed as to the essential elements of aggravated assault. Consequently, the jury had no way to determine whether the State had met its burden of proof. Therefore, we reverse the judgment of the circuit court and remand the case for a new trial.

Reddix, 731 So.2d at (¶¶ 7-8) (emphasis added).

¶ 13. Instruction C~4, quoted above, is clearly not lacking in these essentials. The jury at McKinley’s trial was provided more than adequate instruction on the essential elements of aggravated assault. There was no error in the granting of the instruction.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF CHOCTAW COUNTY OF CONVICTION OF FOUR COUNTS OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS ON EACH COUNT, WITH THE SENTENCES TO RUN CONSECUTIVELY, FOR A TOTAL OF EIGHTY YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CHOCTAW COUNTY.

BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ„ CONCUR.


author: THOMAS, J.,

text:
    Tyrone STOVALL, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-CP-00349-COA.
    Court of Appeals of Mississippi.
    May 18, 2004.

      Tyrone Stovall, Appellant, pro se.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS, IRVING and GRIFFIS, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Tyrone Stovall appeals the denial of his petition for post-conviction relief by the Copiah County Circuit Court. On appeal, he asserts the following verbatim errors warranting reversal of the trial court’s decision:

I. WHETHER PROCEEDINGS VIOLATED THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AS WELL AS THE CONSTITUTION OF THE STATE OF MISSISSIPPI, WHERE HE WAS SUBJECTED TO DOUBLE JEOPARDY IN BEING CONVICTED OF ARMED ROBBERY AND CONSPIRACY TO COMMIT EXACT SAME ARMED ROBBERY.
II. WHETHER SENTENCING ORDER OFFENDS DUE PROCESS OF LAW WHERE SEPARATE VERDICTS AND JUDGMENTS WERE NOT ENTERED BY COURT IN ACCORD WITH STATUTORY LANGUAGE.
III. WHETHER CLAIMS CONSTITUTES PLAIN ERROR AND A DENIAL OF FUNDAMENTAL DUE PROCESS OF LAW WHICH WARRANTS EXCEPTION TO PROCEDURAL BAR.
IV. WHETHER TRIAL COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING IN THIS MATTER BEFORE SUMMARILY DENYING THE MOTION.

¶ 2. Finding no basis in law for any of Stovall’s contentions, we affirm.

FACTS

¶ 3. On August 21, 1998, Tyrone Stovall entered guilty pleas to one charge of armed robbery and one charge of conspiracy to commit robbery. The charges were brought under a two-count indictment. For the armed robbery, Stovall was sentenced to a prison term of ten years and a term of five years for the conspiracy charge, sentences to run concurrently.

¶ 4. Stovall filed his petition for post-conviction relief in January 2003, alleging the same errors as cited above. The lower court dismissed the petition as untimely. Stovall then perfected appeal to this Court.

ANALYSIS

¶ 5. Mississippi statute provides that a prisoner under sentence of a court of record may seek post-conviction collateral relief for up to three years from the date the judgment of conviction is entered. Miss. Code Ann. § 99-39-5(2) (Rev.2000). There are exceptions to the three-year limitation:

(1) Cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence; or
(2) The prisoner has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence; or
(3) Cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked; or
(4) Filings for post-conviction relief in capital cases which shall be made within one year after conviction.

Miss.Code Ann. § 99-39-5(2) (Rev.2000).

¶ 6. The three-year limitation period expired more than a year before Stovall filed his petition for relief. None of the exceptions to the limitation period apply. The denial of the petition for relief as untimely was quite correct. However, Stovall argues the time bar should not be applied as the errors he claims affect his fundamental constitutional rights.

¶ 7. It is true that when the fundamental rights of an individual are implicated in a petition for post-conviction relief, the procedural time bar will not always be applied to preclude review of the claims. Luckett v. State, 582 So.2d 428, 430 (Miss.1991). However, the mere assertion of a constitutional right violation is not sufficient to overcome the time bar. There must at least appear to be some basis for the truth of the claim before the limitation period will be waived. Even without the complication of the time bar, Stovall would still need to make some sort of showing of merit to his claims to avoid dismissal. Miss.Code Ann. § 99-39-11(2).

¶ 8. Stovall cannot support his claims. The time bar was appropriately applied and it is the basis for the decision of this court. We will, however, briefly address the merits of the claims made.

1. Double jeopardy

¶ 9. Stovall argues he was subjected to double jeopardy in violation of his constitutional rights by being prosecuted and sentenced for both armed robbery and conspiracy to commit armed robbery. Stovall contends the elements of these crimes are the same and thus constitute but one crime for which he may only be once punished.

¶ 10. In determining whether two charged offenses actually constitute but one crime, we look to the elements of each crime. State v. Thomas, 645 So.2d 931, 933 (Miss.1994). Where one crime charged requires proof of an additional fact not required of the second charge, the charges are, in fact, two separate crimes. Id.

¶ 11. Conspiracy to commit armed robbery, or any other crime, requires only the agreement among two or more people to commit the crime. Miss.Code Amn. § 97-l-l(a) (Rev.2000). Armed robbery, on the other hand, requires the use of a deadly weapon which places an individual in fear of immediate injury from the weapon and the taking of personal property of another from his presence. Miss.Code Ann. § 97-3-79’ (Rev.2000). Obviously, actual robbery requires the establishment of several different facts than the agreement to commit the act.

¶ 12. Conspiracy is a complete crime in itself which does not merge into the completed offense. Thomas, 645 So.2d at 933. They are two separate crimes and prosecution for both the completed offense and conspiracy to commit the completed offense does not violate the prohibition against being twice prosecuted for the same crime. Id. Stovall was not subjected to double jeopardy.

2. Separate judgments and sentencing orders

¶ 13. Stovall next contends his right to due process of law was compromised by the failure of the court accepting his guilty pleas to enter separate judgments and orders as required by statute. The judgment as issued recited both charges against him, the conviction thereof, and the sentence he received for each of those charges.

¶ 14. Statute requiring convictions of two or more crimes in a multi-count indictment shall have separate verdict and separate sentences imposed. Miss.Code Ann. § 99 — 7—2(3)—(4) (Rev.2000). As noted above the order and judgment recited both counts of the indictment, found Stovall guilty of each one, and imposed separate sentences for each of the offenses. It is unclear what is the exact nature of Sto-vall’s claim of error. He may be arguing the judgments should have been placed on two separate pieces of paper rather than one or he may be arguing two separate hearings were required. If the latter claim is intended, that is not a requirement. Both charges on a multi-count indictment may be handled in one hearing. Miss.Code Ann. § 99-7-2(2) (Rev.2000). If he intends the former argument, there is no basis for that claim in law. Stovall does not cite any authority which would support the argument, if indeed that is his intended argument, nor does the independent review by this Court find any such rule.

3. Fundamental right exception to procedural bar

¶ 15. This claim has been previously addressed and resolved against the appellant. We need not reiterate the discussion again.

Jp. Failure to conduct an evidentiary hearing

¶ 16. Finally, Stovall argues the trial court erred in denying him an eviden-tiary hearing on his claims so that he could have the opportunity to develop facts to support his claims. He also argues the trial court’s failure to review the transcript of his 1998 plea hearing was plain error.

¶ 17. The errors claimed by Stovall are questions of law, not fact. There is no factual evidence which could be developed during a hearing that would in any way alter the outcome of this claim. A completed crime and the conspiracy to commit the completed crime will remain separate offenses regardless of what may be said in a hearing and the trial court would have no choice but to find a double jeopardy claim on this basis without merit.

¶ 18. Likewise, the- document containing the judgments of conviction cannot be altered by an evidentiary hearing. It will continue to contain two charges, two convictions and two separate sentences. The trial court would not have needed to review the plea hearing transcript to determine the outcome to Stovall’s allegations of error. They may only be resolved by resort to existing law. Failing to review a transcript under these circumstances does not constitute error.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.

KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., LEE, IRVING, CHANDLER, MYERS, AND GRIFFIS, JJ., CONCUR.


author: MYERS, J.,

text:
    Linda DAVIS, Appellant, v. Anthony S. LATCH, Individually and in His Capacity as a Corinth Police Officer; The City of Corinth, Mississippi, a Municipal Corporation; and The City of Corinth Police Department, Appellees.
    No. 2003-CA-00511-COA.
    Court of Appeals of Mississippi.
    May 18, 2004.

      Robert W. Davis, attorney for appellant.
    Timothy Michael Peeples, Oxford, Wilton V. Byars, attorneys for appellees.
   MYERS, J.,

for the Court.

¶ 1. Linda Davis filed suit in the Circuit Court of Alcorn County, Mississippi, against Anthony S. Latch, individually and in his capacity as a Corinth police officer, the City of Corinth, Mississippi, and the City of Corinth Police Department. Davis alleged that Latch acted with reckless disregard and caused her injuries while operating his police department vehicle on September 24, 1998. A bench trial was held and the lower court entered a judgment in favor of Latch. The trial court found that Latch had not acted with reckless disregard for the safety of others, and as a result, was afforded immunity under the Mississippi Tort Claims Act, Mississippi Code Annotated Sections 11-46-1 to 11-46-23 (Rev.2002). Aggrieved by this result, Davis perfected the present appeal. Finding no error, however, we affirm the judgment of the lower court.

STATEMENT OF FACTS

¶ 2. This civil action arose from an automobile accident in Corinth, Mississippi. On the afternoon of September 24, 1998, the Corinth Police Department received a report of a disturbance or a fight. Latch was one of three officers to respond to the dispatch. Latch left the downtown area traveling eastbound with his blue lights and siren activated. Latch initially followed Officer Hopkins but was forced to stop at a red light while Officer Hopkins was able to go through the intersection before the light changed. Latch then proceeded eastbound and came to a complete stop again at the next intersection.

¶ 3. Latch then continued eastbound and began to approach a hill crest to the west of the intersection of Proper Street and South Parkway. The intersection is controlled by a four-way stop sign, with Proper Street running east and west, South Parkway running north into Proper Street, and Wilson Street running south into Proper Street. Latch was traveling approximately 37 miles per hour as he crested the hill and began to take his foot off of the accelerator and apply the brake.

¶ 4. There were two vehicles at the intersection as Latch approached. Davis’s van was facing westbound at a complete stand still at the stop sign on Proper Street and its turn signal was not activated. After seeing Latch approaching from the west a second vehicle, which was facing north on South Parkway, turned right onto Proper Street but immediately turned right again into a gas station located on the southeast corner of the intersection. At that point, Latch determined that it was safe to proceed through the intersection so he began to accelerate, but Davis suddenly made a left turn and the two vehicles collided.

¶ 5. Davis brought suit in the Circuit Court of Alcorn County and the case was tried without a jury pursuant to Mississippi Code Annotated Section 11-46-13(1) (Rev.2002). The judge found that Latch was responding to a disturbance or a fight, and therefore, was acting within the course and scope of his employment. The trial judge also found that Latch could have been traveling up to 45 miles per hour and still could have stopped his vehicle in time. The trial judge found that the greater weight of evidence proved that Davis’s left turn signal was not activated. Finally, the trial judge found that Latch’s behavior did not amount to a reckless disregard for the safety of others. As a result, Latch, the City of Corinth, and the Corinth Police Department were all immune from liability. Davis now appeals this decision.

STANDARD OF REVIEW

¶ 6. “A circuit court judge sitting without a jury is accorded the same deference with regards to his findings as a chancellor, and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” Maldonado v. Kelly, 768 So.2d 906, 907(¶ 4) (Miss.2000). These findings will not be disturbed on appeal unless they are manifestly wrong, clearly erroneous or an erroneous legal standard was applied. City of Jackson v. Perry, 764 So.2d 373, 376(¶ 9) (Miss.2000).

LEGAL ANALYSIS

I. WHETHER THE TRIAL COURT’S FINDING WAS AGAINST THE OVERWHELMING WEIGHT OF EVIDENCE

¶ 7. Davis argues that Latch’s actions did not fall under the Mississippi Tort Claims Act and, thus, he was not immune from liability. The relevant statute states:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim: ... (c) [ajrising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury....

Miss.Code Ann. § 11 — 46—9 (1) (c) (Rev. 2002).

¶ 8. “Reckless disregard” has been defined as:

the voluntary doing by motorist of an improper or wrongful act, or with knowledge of existing conditions, the volun tary refraining from doing a proper or prudent act when such act or failure to act evinces an entire abandonment of any care, and heedless indifference to results which may follow and the reckless taking of chance of accident happening without intent that any occur

Turner v. City of Ruleville, 735 So.2d 226, 229 (¶ 11) (Miss.1999).

¶ 9. “[RJeckless disregard is a higher standard than gross negligence by which to judge the conduct of officers.” Id. at 229-80 (¶ 17). “[R]eckless disregard embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act.” Id. at 230 (¶ 19).

¶ 10. Davis alleges that Latch acted with reckless disregard for her safety while operating his vehicle. In support of this allegation, Davis argues that Latch failed to follow the proper procedure for emergency vehicles. Specifically, Davis argues that Latch should have proceeded through the intersection like the two other officers. Davis also argues that Latch was unable to avoid the accident at the speed he was traveling. Davis cites Maye v. Pearl River County, 758 So.2d 391 (Miss.1999), in support of her position.

¶ 11. In Maye, an officer was backing his vehicle up an incline, which was also the entrance of a parking lot. The officer collided with a vehicle which had turned off the road onto the incline. The officer testified that he could not see the road from the parking lot because the jail sat below the level of the road. The supreme court held that the officer “showed a conscious disregard for the safety of others when he backed up an incline entrance to the parking lot knowing he could not be sure the area was clear.” Id. at 395 (¶ 24).

¶ 12. Similarly, in Turner, the supreme court found that an officer “acted willfully and wantonly when he intentionally allowed a visibly intoxicated [person] to continue driving.” Id. at 230 (¶ 21). The intoxicated driver then collided with Turner.

¶ 13. The supreme court also found an officer’s actions to constitute reckless disregard in Perry, 764 So.2d at 378 (¶ 19). In that case, a Jackson police officer collided with Perry’s vehicle. The officer testified that he customarily drove without knowing how fast he was going. In addition, the officer was on his way to lunch at the time of the accident. The supreme court found the officer acted with reckless disregard for the safety of others because he was speeding without purpose and failed to use any lights or sirens. Id.

¶ 14. More recently, the supreme court has upheld two trial courts’ findings of reckless disregard. See City of Jackson v. Brister, 838 So.2d 274 (Miss.2003); City of Jackson v. Lipsey, 834 So.2d 687 (Miss.2003). In Brister, the court found the officer’s conduct rose to the level of reckless disregard when the officer began a high speed chase, in direct violation of police policy and without knowing what type of crime had been committed by the suspect. Id. at 280-81 (¶ 23). The court noted that the officer involved in the accident was engaging in his first “hot pursuit” in a heavily populated area and was totally unfamiliar with the terrain. Id. at 280 (¶ 21). In Lipsey, the court held that an officer acted with reckless disregard by driving in excess of the posted speed limit at night, with no headlights, blue lights or siren activated. Lipsey, 834 So.2d at 693 (¶ 23).

¶ 15. The common thread running through these cases is an appreciation of the unreasonable risk of danger involved coupled with a conscious indifference to the consequences that were certain to follow. We simply find this type of behavior missing from the instant case. There is no indication that Latch acted with deliberate disregard of the consequences of attempting to cross the intersection. Maldonado, 768 So.2d at 911 (¶ 12). “To the contrary, there is every indication that [Latch] was aware of the nature of the intersection and took specific steps to avoid any accidents.” Id.

¶ 16. “The driver of any authorized emergency vehicle when responding to an emergency call upon approaching a red or stop signal or any stop sign shall slow down as necessary for safety but may proceed cautiously past such red or stop sign or signal. At other times drivers of authorized emergency vehicles shall stop in obedience to a stop sign or signal.” Miss. Code Ann. § 63-3-315 (Rev.1996). By the same token, “[u]pon the immediate approach of an authorized emergency vehicle, when the driver is giving audible signal by siren, exhaust whistle, or bell, the driver of every other vehicle shall yield the right-of-way ... and shall stop and remain in such position until the authorized emergency vehicle has passed.... ” Miss.Code Ann. § 63-3-809(1) (Rev.1996).

¶ 17. In this ease, Latch was acting within the course and scope of his employment at the time of the accident. He was traveling approximately 37 miles per hour with his blue lights, wigwags and sirens activated as he approached the intersection. Davis’s own expert testified that Latch could have stopped his vehicle in time even if he were traveling 40 miles per hour. There was nothing obstructing the view of either Davis or Latch. The greater weight of evidence proved that Davis’s left turn signal was not activated. In addition, the Corinth police chief testified that Latch’s actions were consistent with the department’s policy.

¶ 18. The fact that the two other officers proceeded through the intersection at a lower rate of speed than Latch is not dispositive. Both officers testified at trial and both officers encountered different circumstances as they approached the intersection because none of the officers went through the intersection at the exact same time. Officer Howie testified that there were drivers whose faces, turn signals and other movements could not be seen by him. Officer Hopkins testified that a vehicle was immediately in front of him at the intersection proceeding in the same direction. As a result, we do not find these two officers’ actions damaging to Latch.

¶ 19. It should also be noted that Latch consciously stopped at the previous two intersections because he considered both of those to be blind intersections. In other words, Latch could not determine that every direction was safe. Latch’s behavior supports the finding that he appreciated the risk involved in approaching the intersection, and proceeded with caution only deciding to proceed at a point when he perceived it to be safe to do so.

¶ 20. We find the trial court’s rulings to be supported by substantial, credible, and reasonable evidence. Latch’s conduct does not rise to the level of reckless disregard under the analysis set forth in Turner. As a result, Latch, the City of Corinth, and the Corinth Police Department are entitled to immunity under the Mississippi Tort Claims Act.

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

KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: SOUTHWICK, P. J.,

text:
    Eileen TUCKER and Loretta G. Read, Appellants v. Ronnie Calvin LONG and Alice E. Henley, Appellees.
    No. 2003-CA-00934-COA.
    Court of Appeals of Mississippi.
    May 18, 2004.
    Judson T. Tucker, attorney for appellants.
    Walter T. Rogers, Meridian, attorney for appellees.
    Before SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.
   SOUTHWICK, P. J.,

for the Court.

¶ 1. The appellees in this litigation were found to have title to certain real property through adverse possession. On appeal, the appellants argue that the requirements of such possession were not met. We agree. Therefore, the judgment is reversed and the cause is remanded.

¶2. The property over which this contest swirls is an easement for ingress and egress. The dominant and servient estates for that easement are referred in the record by the shorthand of their numbered addresses on Crescent Lake Road. The owners, with an approximate one-acre tract that does not front on the road, are appellants Eileen Tucker and Loretta G. Read, whose parcel is known as the “290A” property. Tucker alone owns an adjacent parcel of about the same size known as the “290B” property. Sole access to Crescent Lake Road for these parcels is by a driveway that proceeds northwesterly from the tracts’ common boundary across the eastern edge of a tract owned by the appellees Ronnie Calvin Long and Alice E. Henley. That tract, with frontage on the road, is called the “290” property. The driveway straddles the boundary between the Long-Henley 290 property and land owned by the Jenkins family to the east. The Jenkins are not parties to this suit.

¶ 3. In 1973, the landlocked 290A property was deeded to Nancy Eileen Read Tucker and her husband Robert. An easement described by courses and distances was specifically conveyed as well. This is the easement at issue in the case. The description is of an easement 170 feet in length and twenty feet in width. Evidence at trial revealed that the individuals who in 1986 became the owners of the 290 parcel across which the easement ran have in recent years been encroaching on the described easement, though access was not blocked. There is in the record a 1977 quit claim deed from the Tuckers conveying the 290 parcel, the tract which fronted on the road. The source of their title to the servient estate does not appear. The Tuckers conveyed the tract to individuals not involved in this litigation and did not reserve the easement to the 290A parcel. Through various conveyances this 290 tract — the one that fronts the road — became owned in 1986 by Long and Henley. None of the deeds to the 290 parcel beginning in 1977 referred to the easement that burdened that land.

¶ 4. By 1996, the landlocked 290A parcel was owned by Michael and Tammy Tucker. They wished to acquire a loan using this land as security. At that time, a question was raised about the legal right to access Crescent Lake Road across parcel 290. That question existed because Michael Tucker’s parents, Robert and Eileen Tucker, had not reserved an easement for the 290A parcel when in 1977 they quitclaimed the 290 parcel to Long and Henley. In 1996, there was recorded in the deed records a non-exclusive easement purportedly executed by Long and Henley that was granted to Michael and Tammy Tucker, using the same easement description as in the 1973 deed of the 290A parcel. Long and Henley deny having executed that instrument. The chancellor found on contested evidence that the document was authentic. Some of the land described in the easement was not owned by Long and Henley, as previously noted. Instead, the easement straddled their eastern boundary and the western boundary of land owned by Jenkins. Again, however, this case only addresses the possible encroachment onto the part of the easement which is on property owned by Long and Henley. We note that the 1996 grant of a non-exclusive easement did not refer to a dominant estate; it merely described the easement property and granted ingress and egress rights to Michael and Tammy Tucker. The grant was nonetheless called “perpetual” and not personal.

¶ 5. Some additional facts are needed to set the stage. Parcel 290A is now owned by Nancy Eileen Tucker and Loretta G. Read. The 290B parcel, immediately to the east of the 290A tract and to which the easement also provides access, was conveyed to Eric and Loretta Read in 1974. The grantors were Robert and Nancy Eileen Tucker. Also conveyed was the “right to use jointly with, the Grantors the Grantors’ easement for ingress and egress which was conveyed to the Grantors.” Loretta Read, described as a widow, conveyed Parcel 290B to Nancy Eileen Tucker in 1998. Also conveyed was the easement. Today, Tucker and Read own Parcel 290A; Tucker alone owns Parcel 290B.

¶ 6. Long and Henley have owned the 290 property across which the easement partly runs since 1986. In 1989, they placed crossties to mark the driveway. In 1991, they built a dog pen, planted flowers, a hedge and forty pine trees. In 1994, they built a workshop for Long to use for his carpentry. In 1995, they built a shed that includes an overhang stretching across the driveway.

¶ 7. These improvements partly encroach onto the easement. Nancy Eileen Tucker filed suit in 2001 against Long and Henley seeking to enjoin this adverse use. Loretta Read was later joined as a necessary party. The chancellor found that Long and Henley had adversely possessed a portion of the easement and that Tucker and Read were the dominant owners of the portion of the easement not adversely possessed. Tucker and Read appeal.

DISCUSSION

¶ 8. The owners of the land over which the easement runs, Long and Henley, argue that the encroachments onto the easement that they have made have occurred for a sufficient length of time — since 1986 — as to cancel the dominant estate’s interest to that part of the easement. Adverse possession may gain title to an easement and it may also terminate rights as to some part of an easement owned by another. Gee Ogletree and David Rueff, Property Ownership, in 7 Enoy. of" Miss. Law § 60:108 (Jeffrey Jackson & Mary Miller eds.2001).

¶ 9. The owners of the dominant estates, Tucker and Read, argue that Long and Henley did not adversely possess a portion of the easement. In order for land to be adversely possessed, there must be ten years of possession under certain terms. Miss.Code Ann. § 15-1-13 (Rev. 2003). Tucker and Read claim that Long and Henley’s 1996 conveyance of the easement interrupted any claim for adverse possession. The party claiming title must show ten years’ possession that is under a claim of ownership; actual or hostile; open, notorious, and visible; continuous and uninterrupted; exclusive; and peaceful. Rice v. Pritchard, 611 So.2d 869, 871 (Miss.1992).

¶ 10. The chancellor found that the purpose of the 1996 non-exclusive perpetual easement was to have access to the existing driveway. He found that this easement was not to take part of the land that Long and Henley were using and had started to use in 1989. The easement as it was described in the survey differed from how it actually was laid on the land. He found that the use of the land had not been interrupted and adverse possession had occurred of a portion of the easement “from the Northeast corner of the dog pen, to the Southeast corner of the overhang structure and thence to the three pine trees on the other side of the Southeast corner of the overhang structure.”

¶ 11. The chancellor was convinced that the grantors of the 1996 easement did not intend to eliminate their right to use any of the easement property that they were then adversely using. That is certainly plausible. However, those potential adverse users adopted a precise description of a strip of land and granted to the owners of the landlocked tracts a right to use that property as an easement. From that date forward, the grantees had the right to use the entirety of the granted easement without interference from the grantors. Whether a conveyance was with a warranty or not, the grantors part with the title that they had to the described premises. Miss.Code Ann. § 89-1-1 (Rev.1999).

¶ 12. It is certainly true that a description in a deed may not accurately reflect what parties wish to convey. If that is so, then parol evidence may be offered to show that due to mutual mistake an erroneous description was used in the deed. If the evidence of mistake is found convincing beyond a reasonable doubt, the instrument may be reformed. McCoy v. McCoy, 611 So.2d 957, 961 (Miss.1992). There has been no allegation of mutual mistake and no attempt to reform the easement description in this case.

¶ 13. Instead, the owners of the servient estate over which the easement in part runs have argued that the deed, first, was a forgery and second, that the execution of the deed did not interrupt their possession. The chancellor found that the deed had been executed by Long and Henley. We find substantial evidence to support that finding. Further, as a matter of law the conveyance of a specifically described easement interrupts the possession since it ends the claim of right as to the entirety of that easement strip. The fact that Long and Henley continued in possession at best means that a new period of possession commenced. That period, beginning at the earliest in 1996 if all the other elements such as claim of right also commenced anew, did not continue for ten years.

¶ 14. The 1996 deed by Long and Henley gave good title to the described easement. We reverse and enter judgment that the entirety of the easement as described in the deeds remains a burden on the land of Long and Henley. No decision is made here as to the part of the easement that lies on land of the individual who is not a party to this suit.

¶ 15. We remand so that the proper relief can be entered. Tucker and Read requested in their amended complaint that Long and Henley remove a building, cease obstructing the easement, and take certain other remedial measures. It is for the chancellor to determine on remand what relief is appropriate to enforce the rights of Tucker and Read to the described easement.

¶ 16. THE JUDGMENT OF THE CHANCERY COURT OF LAUDER-DALE COUNTY IS REVERSED AND RENDERED AS TO TITLE AND IS REMANDED AS TO RELIEF. ALL COSTS ARE TAXED TO THE APPEL-LEES.

KING, C.J., BRIDGES, P.J., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: SOUTHWICK, P.J.,

text:
    J.L. MORAN and Wife, Judy Moran, Appellants, v. Billy SIMS, Appellee.
    No. 2003-CA-00370-COA.
    Court of Appeals of Mississippi.
    May 18, 2004.

      W. Terrell Stubbs, attorney for appellant.
    Stanley Alex Sorey, attorney for appel-lee.
    Before SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. The chancellor awarded Billy Sims a prescriptive easement across J.L. and Judy Moran’s property. The Morans appeal, but we find no error and affirm.

¶ 2. Sims owns property surrounded on three sides by the Morans. His deed was recorded in 1985, but the property had been in his family for at least fifty years. Sims used the land to raise horses and cattle. He began construction of a home in 1991. The Morans purchased parcels to the north, east, and west of Sims in 1996. The access from the Sims property to a state highway had historically been on a driveway across the property now owned by the Morans.

¶ 3. Sims filed a complaint in 1999 seeking an easement. The court sent the dispute to the Smith County Board of Supervisors so that it could lay out a private road. The parties could not agree on a proposal and the matter was returned to chancery court. A trial was held in 2002. Sims and other witnesses testified that the driveway had been used by Sims or his predecessors for at least the past fifty years. Moran did not appear at trial and presented no witnesses. Sims was found to have a prescriptive easement giving him access from the highway to his property.

DISCUSSION

1. Prescriptive easement

¶ 4. An easement may be acquired by ten years possession, just as may fee simple title. Rutland v. Stewart, 630 So.2d 996, 999 (Miss.1994). Prescription occurs if there is ten years of use that is open, notorious, and visible; hostile; under a claim of ownership; exclusive; peaceful; and continuous and uninterrupted. Myers v. Blair, 611 So.2d 969, 971 (Miss.1992). Permission from the record title owner will make the use permissive and not adverse. Id.

¶5. Moran argues on appeal that Sims never proved the negative, that is, never proved that Sims and his predecessors did not have permission to use his property. The elements for a prescriptive easement will be examined individually.

a.Open, notorious and visible

¶ 6. At trial, Sims testified that he had used the driveway running across Moran’s property since he purchased the parcel in 1985. His family had used the driveway for at least the past fifty years. Among the testimony was from a school bus driver who testified that he had driven the bus down the driveway to pick up children in 1956-1957. When Moran purchased his property in 1996, the driveway and a house on Sims’ land were both in existence. This was sufficient under this factor.

b. Hostile

¶ 7. Moran argues that Sims and his predecessors had implied permission to use the property. That allegedly is proved by the fact that the owners of the land across which the driveway ran never objected to his use. A prescriptive easement cannot originate from a permissive use of land because it would not be hostile. Sharp v. White, 749 So.2d 41, 42 (Miss.1999). However, the absence of an objection is not the equivalent of consent.

¶ 8. Here,' there was no evidence that Sims or his predecessors had permission to use the driveway. Consent may be inferred from evidence, but it will not be presumed in the absence of evidence. There is nothing in the record from which such an inference can be drawn. The Morans argue that the very obviousness of the use indicates that it must have been consensual. That is not so. If the use of an easement is inconsistent with the title of the servient estate owner, that is the needed hostility. Consent must be shown. Here it was not.

c. Claim of ownership

¶ 9. Sims presented testimony which showed a claim of ownership, including the fact that he purchased gravel for the driveway. There was testimony on that from the person whom Sims hired to deliver and spread the gravel. This element was properly established.

d. Exclusive

¶ 10. “Exclusive” use does not mean that no one else used the driveway. Exclusivity here means that the use was consistent with an exclusive claim to the right to use. There was evidence that the driveway was used by the Sims family and those whom they implicitly permitted to do so. The Sims’ home was the only home located on the driveway.

e. Peaceful

¶ 11. Sims testified that there was no controversy concerning the driveway prior to Moran’s purchase of property. There was no evidence of a dispute with prior owners. By the time that Moran complained, the period of prescription had long since run.

f. Continuous and uninterrupted for ten years

¶ 12. Sims recorded the deed to his property in 1985. His family had owned the property for at least fifty years before. During this time, the driveway had been in use. That is ten years, and more.

¶ 13. The elements of adverse possession were sufficiently proven.

2. Description of easement

¶ 14. Moran claims that the chancellor erred in granting Sims a prescriptive easement until an accurate description of the easement was determined. The testimony presented at trial established that the driveway ran across Moran’s property from Highway 531 in more or less a straight line to the Sims property. The driveway is approximately 216 feet long and 30 feet wide. There is no factual dispute as to its location. This issue concerns a perceived need to have a certain kind of description prepared before title can be confirmed.

¶ 15. There are a variety of accepted methods of describing real property. A valid means is by reference to monuments. Natural monuments include rivers, lakes, streams, or trees; artificial monuments include such landmarks as fences, walls, houses, streets, or ditches. Descriptions employing monuments may in part also employ a “metes and bounds” description. That method uses a measurement of length (metes) along certain boundary lines (bounds). Monuments, natural or artificial, can disappear or be altered, so there is an inherent danger in long-time use of monuments. The risk does not invalidate the use. What is needed in any description is accuracy and clarity. Descriptions using monuments are valid even when there is no surveyor’s angle and distance description, so-called “courses and distances” descriptions. The validity of references to roads as they presently exist has been confirmed by the Supreme Court. Armstrong v. Itawamba County, 195 Miss. 802, 818, 16 So.2d 752, 757 (1944). In that case, an easement by prescription was awarded to the public on a road “as it now runs.” Id. Witnesses testified that there had been no change in the location of the road as far as anyone could remember. This was enough of a description.

¶ 16. The chancellor granted an easement in the “existing road.” There was no evidence that the driveway’s location had changed over the years. This was sufficient. Should either party now or eventually wish to employ a surveyor so that a different kind of description can be obtained, that is certainly within the rights of landowners. There is no requirement on these facts that the chancellor order such a survey.

¶ 17. THE JUDGMENT OF THE CHANCERY COURT OF SMITH COUNTY IS AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANTS.

KING, C.J., BRIDGES, P.J., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


text:
    Wanda B. MONTGOMERY, Appellant, v. John Prate MONTGOMERY, Appellee.
    No. 2002-CA-01769-COA.
    Court of Appeals of Mississippi.
    May 18, 2004.
    Rodney A. Ray, attorney for appellant.
    Ben F. Hilbun, attorney for appellee.
    Before SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.
   SOUTHWICK, P. J.,

for the Court.

¶ 1. Wanda Montgomery was found in contempt of court by the Chancery Court of Oktibbeha County. She was ordered to pay John Prate Montgomery the sum of $4,550 as compensation for items removed from his camp house; and attorney’s fees of $750. On appeal, Mrs. Montgomery claims that the chancellor’s ruling was clearly erroneous. We find no error and affirm.

¶ 2. The Montgomerys were granted a divorce on October 14, 1998. As part of the separation agreement, Mrs. Montgomery was allowed to live in her former husband’s camp house. She agreed to vacate it no later than March 5, 1999. Apparently the parties agreed to extend the date to April 15, 1999. She also agreed to leave certain items in the camp house upon her departure and to return certain items that she had removed prior to the separation agreement.

¶ 3. On May 27, 1999, John Montgomery filed a motion to cite his former wife for contempt. He claimed that she had removed thirty items from the camp house in violation of the court decree. He compiled a list of missing items ranging from light bulbs to a field cultivator.

¶4. Mrs. Montgomery responded on June 3, 1999, generally denying that she should be held in contempt of court. On September 14, 2000, she filed a motion to cite Mr. Montgomery for contempt in that he had failed, among other complaints, to pay alimony for several months. A hearing was held in October. At the hearing the parties informed the chancellor that the matters raised in Mrs. Montgomery’s motion had been resolved. The chancellor conducted an evidentiary hearing solely on Mr. Montgomery’s claims. Each Montgomery testified with different versions of the dispute. A few weeks after the hearing, the chancellor found Mrs. Montgomery in civil contempt of court. She was ordered to pay the sum of $4,550 as compensation for items removed from the camp house, and also to pay attorney’s fees of $750 and court costs. She appeals.

DISCUSSION

¶ 5. Mrs. Montgomery claims that the chancellor’s decision finding her in contempt of court is clearly erroneous. A finding of civil contempt is given deference because the trial judge is in a better position to review all circumstances including the credibility of the witnesses and the facts of the case. Cumberland v. Cumberland, 564 So.2d 839, 845 (Miss.1990). If substantial credible evidence supports the findings, we will affirm. Varner v. Varner, 666 So.2d 493, 496 (Miss.1995).

¶ 6. At the time of Mrs. Montgomery’s move into the camp house, neither party made an inventory of all items in the house. Further, Mrs. Montgomery was to give her ex-husband thirty days notice before she moved out of the house. The record reveals that the back door to the camp house was never locked, and that many people may have had access to the house. The record also reveals that, upon leaving, Mrs. Montgomery removed the locks to the doors and left them in the middle of the floor of a room in the camp house.

¶ 7. After the dispute over missing items arose, Mrs. Montgomery delivered a trailer to Mr. Montgomery, which contained some of the missing property. The record also supports that Mrs. Montgomery intentionally damaged the camp house and some of its contents. She admitted to pouring oil on the ground outside the camp house and then tracking it into the house. She stated in her testimony that she did this in an attempt to retaliate against her husband for stating that it was a woman’s job to clean the house. Mr. Montgomery also testified that she threw flour on the walls, a claim that Mrs. Montgomery denied.

¶ 8. Mrs. Montgomery admitted that she gave the field cultivator and other items to a scrap metal collector who cleaned up the area around the camp house. She claims that she first notified Mr. Montgomery that the area needed cleaning. He allegedly responded by stating that he had no need for the items. Mrs. Montgomery also admitted that she had given a steel vat to her brother and that the vat had since been returned. She admitted that she had removed pillows from the couch in the camp house when she moved out. She stated that she used these pillows to protect her tanning bed from being damaged when she moved it from the house. She admitted taking the pillows to a storage facility and did not recall how long it took for her to return them. Mr. Montgomery stated that only one of the pillows was returned, that it was approximately one year later, and by that time he had replaced the couch because it was of no use without the pillows. Mr. Montgomery also claims that Mrs. Montgomery unplugged the deep freeze leaving the contents to spoil. He claimed that he could no longer use the freezer because of the odor that was too hard to remove.

¶ 9. Intent may be determined from a person’s acts. Corbin v. State, 585 So.2d 713, 721 (Miss.1991). Mrs. Montgomery’s admissions and possession of many of the thirty missing items leads to inferences that she intended to dispossess Mr. Montgomery of items in the camp house.

¶ 10. The chancellor had substantial credible direct evidence and reasonable inferences to draw from that evidence. Thirty items were in dispute. Each item had been priced by Mr. Montgomery for replacement or repair. The total claim was for more than $10,000. The chancellor awarded $4,550 for the field cultivator, stainless steel vat, pots, pans, knives, forks, spoons, and posthole digger. He did not award monetary damages for every item.

¶ 11. The evidence was disputed and was not in all particulars as clear as no doubt the chancellor would have preferred. Based on what was presented, though, there was a sufficient basis for the determination that Mrs. Montgomery intentionally damaged or discarded property that she reasonably knew should be returned to her husband. Weighing the equities, the award of this amount of monetary damages was justified.

¶ 12. THE JUDGMENT OF THE CHANCERY COURT OF OKTIBBEHA COUNTY IS AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES, P.J., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


text:
    Maurice BARR, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-CP-00491-COA.
    Court of Appeals of Mississippi.
    May 18, 2004.
    Maurice Barr, appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. Maurice Barr appeals the order of the Monroe County Circuit Court dismissing his motion for post-conviction relief. We find no error and affirm.

¶ 2. In June 1993, Barr pled guilty to two charges of sale of cocaine. He was sentenced to terms of fifteen years, with nine years suspended on each charge. The two sentences ran concurrently. In January 2002, Barr filed for the issuance of a writ coram nobis, or in the alternative, post-conviction relief. Barr stated that he was a federal prisoner incarcerated in Memphis, Tennessee.

¶ 3. Barr alleges that he is serving a life sentence in Tennessee as a result of enhancement from the 1993 convictions in Mississippi. The circuit court denied Barr’s motion as time barred, for lack of jurisdiction of the court, and as a successive writ.

¶ 4. Barr seeks to have the circuit court’s denial of relief reversed. However, this is his third motion for post-conviction relief. The first two were filed in 1994, and they were denied. The denial of the first motion was a final judgment and stood as a bar to the second and any successive motions for post-conviction relief. Miss.Code Ann. § 99-39-27(9) (Rev. 2000).

¶ 5. In addition, in order to bring a motion under our statutes for post-conviction relief, the movant must be serving a sentence pronounced by a Mississippi state court. Miss.Code Ann. § 99-39-5(1) (Supp.2003). Barr indicates that he is serving a Tennessee-issued sentence.

¶ 6. Finally, a motion for post-conviction relief is to be made within three years after entry of the judgment of conviction. Miss.Code Ann. § 99-39-5(2) (Supp.2003). Barr’s conviction was entered on June 16, 1993. Barr filed this motion for post-conviction relief in January 2002.

¶ 7. There were several proper bases for the denial of relief.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES, P.J., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: PER CURIAM.

text:
    AETNA LIFE INSURANCE COMPANY v. James M. CHARACTER.
    1020068.
    Supreme Court of Alabama.
    May 30, 2003.
    Rehearing Denied Aug. 15, 2003.
    James R. Shaw and R. Gordon Sproule, Jr.; of Huie, Fernambucq & Stewart, LLP, Birmingham, for appellant.
    Myron K. Allenstein and Rose Marie Allenstein of Allenstein & Allenstein, L.L.C., Gadsden, for appellee.
   PER CURIAM.

Aetna Life Insurance Company of Hartford, Connecticut, and Goodyear Tire & Rubber Company (“Goodyear”) appealed to this Court from a judgment entered by the trial court after a bench trial on count I of a two-count complaint filed by James M. Character. We reverse and remand.

Aetna U.S. Healthcare and Goodyear were the only named defendants in Character’s complaint. Goodyear and “Aetna Life Insurance Company” answered the complaint. After a hearing before the trial court at which ore tenus evidence was presented, the trial court, on February 19, 2002, entered a judgment on count I against only Aetna U.S. Healthcare. Count II was severed from count I, and on September 27, 2002, the trial court certified its judgment on count I as final, pursuant to Rule 54(b), Ala. R.App. P.

The trial court’s judgment against Aetna U.S. Healthcare awarded Character $52,975 in long-term disability benefits and $25,380.34 in prejudgment interest. Aetna Life Insurance Company, but not Aetna U.S. Healthcare, filed a notice of appeal on October 11, 2002. After inquiry to the trial court by this Court as to whether Aetna Life Insurance Company had standing to appeal a judgment against Aetna U.S. Healthcare, the trial court, which had filed an amended order on April 2, 2003, entered the following amended order on April 9, 2003:

“The Order of April 2, 2003, is hereby amended by substituting Aetna Life Insurance Company for the name Aetna U.S. Healthcare. The amended Order states as follows:
“Originally a complaint was filed by James M. Character for benefits against Goodyear Tire & Rubber Company and Aetna [U.S. Healthcare], At trial, the parties stipulated that the claim for benefits was against Aetna Life Insurance Company pursuant to an insurance contract issued by Aetna Life Insurance Company. The judgment in favor of Plaintiff was rendered against Aetna Life Insurance Company. The Court failed to dismiss Goodyear Tire & Rubber Company without prejudice as a matter of record even though the parties so stipulated.
“The Court hereby acknowledges the oral Stipulation of the Parties and dismisses the claims in Count I against Goodyear Tire & Rubber Company without prejudice.
“The following judgment against Aet-na Life Insurance Company in Count I as issued by this Court on February 19, 2002, is restated as follows:
“ ‘The Court finds that Aetna Life Insurance Company incorrectly denied Long Term Disability Benefits to James M. Character. Mr. Character is entitled to Long Term Disability Benefits from Defendant Aetna beginning October 1996 to the present time and until age 65 provided he meets the eligibility requirements. Review of the [administrative decision to deny benefits is under the de novo standard of review. The parties agreed that the de novo standard of review applies. Under de novo review, no deference is given to the [administrative [d]ecision. Firestone Tire & Rubber Company v. [Bruch, 489 U.S. 101,] 109 S.Ct. 948 (1989). In Ramsey v. Hercules Inc., 77 F.3d 199, 204[-05] (11th Cir.1996), the [United States Court of Appeals for the Eleventh] Circuit applied the holding of Firestone to factual determinations about long term disability claims. [Character] is entitled to 18% interest on past due benefits pursuant to [Ala.Code 1975, § 27-1-17]. Jordan v. Reliable Life Ins. Co., 589 So.2d 699 (Ala.1991).’
“The judgment for interest against Aetna Life Insurance Company on Count I as issued on September 25, 2002, is restated as follows:
“ ‘Based on the submissions of the parties, the Court awards [Character] $25,380.34 in prejudgment interest as of February [19], 2002, with interest being calculated from 1/1/97 to 2/19/02 at 18%.
“ ‘The Court’s Order of 2/19/02 is amended to include a judgment of $25,380.34 in favor of [Character] and against Defendant Aetna.’
“On September 27, 2002, this Court denied [Character’s] Motion for Attorney Fees and Costs against Aetna Life Insurance Company. Upon Motion for Reconsideration, [Character’s] Motion was again denied on October 28, 2002. Because the Court severed the claims in Count II against Goodyear from the claims in Count I against Aetna Life Insurance Company, the Court’s Order of September 27, 2002, was intended as a final order regarding the claims against Aetna Life Insurance Company. For trial purposes the Court had dismissed the claims in Count I without prejudice against Goodyear, but failed to dismiss the claims as a matter of record.
“All claims against Aetna Life Insurance Company have been finally adjudicated. The claims against Goodyear Tire & Rubber Company as stated in Count II have been severed by this Court and stayed pending a final adjudication of the appeal of the judgment of Count I. There is no reason to delay a final judgment regarding the claims of Count I against Aetna Life Insurance Company. Pursuant to Rule 54(b) of the Alabama Rules of Civil Procedure, the judgment against Aetna Life Insurance Company is a final judgment.
“This the 9th day of April, 2003.”

The trial court, on the basis of a stipulation during trial that the correct name of the defendant Aetna U.S. Healthcare is Aetna Life Insurance Company, has corrected its judgment to describe that defendant as Aetna Life Insurance Company. While the stipulation is not of record, Character has not challenged the accuracy of the trial court’s statement nor has Character attacked the amended judgment as exceeding the scope of the trial court’s authority.

Rule 60(a), Ala. R. Civ. P., provides:

“(a) Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal or thereafter, such mistakes may be so corrected by the trial court. Whenever necessary a transcript of the record as corrected may be certified to the appellate court in response to a writ of certiorari or like writ.”

(Emphasis added.) Under the circumstances here presented we treat the trial court’s amendment of the judgment while this appeal was pending as a nunc pro tunc correction of the judgment. Consequently, the notice of appeal filed in the name of Aetna Life Insurance Company (“Aetna”) is sufficient to invoke this Court’s appellate jurisdiction.

Aetna presents two issues for review by this Court:

“I. Whether the trial court erred in awarding Character long-term disability benefits given the fact that [Character] was fully capable of performing a reasonable occupation as defined by the long-term disability plan.
“II. Whether the trial court erred in failing to set off Character’s other income benefits pursuant to the applicable long-term disability plan.”

Because of our resolution of the first issue, we do not address the second issue.

Character worked for Goodyear for many years. While he was employed, he was covered under a long-term disability (“LTD”) plan entered into between Goodyear and Aetna; the issue date of the plan was February 1, 1995, and the effective date was January 1, 1993. All full-time salaried employees of Goodyear were eligible to participate in the LTD plan. Character chose to take part in the LTD plan, which would pay him 70% of his basic salary if, while he was employed by Goodyear, he became totally disabled (as that term is defined in the LTD plan) and remained totally disabled for more than 12 months. Character last worked for Goodyear in September 1995. Because of deteriorating health, Character quit working, and Goodyear paid Character 80% of his basic salary through October 1, 1996, as short-term disability benefits. Character contends, and the trial court found, that Character was totally disabled, as that term is defined in the plan, and that he had been totally disabled for 12 months prior to October 1,1996.

The parties agree that the following is the definition of total disability that is used in the LTD plan:

“You are deemed to be totally disabled during the 12 month waiting period and thereafter if you are not able, solely because of injury or disease, to work at any reasonable occupation. (This is any gainful activity for which you are, or may reasonably become, fitted by education, training or experience, and in which other people of similar background are actually employed as their principal means of support.)”

In Altiere v. Blue Cross & Blue Shield of Alabama, 551 So.2d 290, 292 (Ala.1989), this Court stated:

“Courts are not at liberty to rewrite policies to provide coverage not intended by the parties. Newman v. St. Paul Fire & Marine Insurance Co., 456 So.2d 40 (Ala.1984). In the absence of a statutory provision to the contrary, insurance companies have the right to limit their liability and to write policies with narrow coverage. United States Fidelity & Guaranty Co. v. Bonitz Insulation Co., 424 So.2d 569 (Ala.1982).”

No party has cited any statutory provision that would prohibit Aetna from limiting the definition of “total disability” to the definition of that phrase contained in the LTD plan. Independent research has failed to locate any such statutory limitation.

Character testified that before the issue date of the LTD plan, he had attended three years of college, had obtained a real estate license, and had an insurance sales license. He indicated that he owned 50% of a used car dealership; that he owned and managed real property; and that he engaged in other entrepreneurial enterprises. Character said that he was born on August 14, 1945, and that he intended to stop working at Goodyear in 1995, because his goal “from the time [he] was a little, bitty boy was to retire at age 50.” Character filed his disability-claim notice with Goodyear on July 23,1996.

At trial, the following exchange occurred between Character and his attorney:

“Q. [Character’s attorney:] During 1996, could you have worked a light, sedentary job on a regular basis five days a week, an eight-hour day, in your opinion? On a regular basis, sustained basis?
“A. [Character:] In a layman’s term, would you tell me what that sedentary job is? What is a sedentary job?
“Q. A desk job, where you don’t— there’s not much physical exertion. It’s a desk job, where you don’t have to exert yourself, pretty much, physically?
“A. That would have had no effect. No, sir. In my opinion, no.
“Q. Why not, in your opinion?
“A. My vascular condition is deteriorating my entire body. My legs, my heart, my aorta, you name it.
“Q. Okay.
“A. The leg condition is a vascular condition. It was the straw that broke the camel’s back. But my entire body— My entire vascular body is deteriorating.”

In 1996, an administrative law judge for the Social Security Administration denied Character’s application for Social Security disability benefits. Character suffered an acute myocardial infarction in January 1998 and was hospitalized. On July 18, 1998, an administrative law judge for the Social Security Administration found that Character had been under a “disability,” as defined by the Social Security Act and the regulations promulgated pursuant to that act, since September 15, 1995, and that based upon the “combined effects of his impairments,” his residual-function capacity, and vocational factors, no jobs that Character could perform existed in significant numbers.

Character last worked for Goodyear on September 3, 1995; he received 80% of his basic salary from Goodyear through October 1, 1996. The fact that Goodyear paid Character, even though Character was not working for Goodyear, may be evidence indicating that Character could not perform the duties he had been employed to perform for Goodyear; however, this evidence does not indicate that Character, solely because of injury or disease, was totally disabled and not able to work at any reasonable occupation, as that phrase is defined in the LTD plan.

Character argues that proper weight should have been given to the opinion of his treating physicians in considering whether Character was totally disabled for purposes of the LTD plan. We agree. However, we cannot find any opinion by Character’s treating physicians that supports Character’s claim that he was totally disabled before October 1, 1996, as the phrase “total disability” is defined under the LTD plan. Character’s primary physician before October 1, 1996, assigned Character no limitations and no restrictions on what he could do. No physician told Character, Aetna, or the trial court, orally or in writing, that Character was incapable of working at any reasonable occupation or that he was not able to manage his various companies, which included Coosa Kars, Rainbow Finance, JAST, Inc., and Executive Sales & Leasing.

The trial court’s judgment is incongruous with the following undisputed evidence.

During 1995-1996, Character bought out his partner in Coosa Kars and began an expansion of that business that included hiring Evan Edge, expanding the lot to include Executive Sales & Leasing, acquiring dealer financing, and expanding the business into Florida. Character was the president of Coosa Kars, and he signed any necessary paperwork, funded purchases, made various business decisions, attended auto auctions, and picked up cars. During this time, he increased Coosa Kars’ used car inventory from $80,000 to $400,000. He was generally involved in day-to-day activities of Coosa Kars. He received $3,000 a month in rent from Coo-sa Kars, an annual salary of $11,068, and he indicated on his federal tax return that he devoted 100% of his time to the business of Coosa Kars. During this time, Character was not hospitalized; he was involved in a partnership that purchased and managed rental properties, including three office buildings in Alabama and Georgia; he made, collected, and managed loans through JAST, Inc., one of his corporations; he walked two miles a day; and he drove back and forth between Sarasota, Florida, and Gadsden, Alabama.

In this case, it is difficult to “suit the action to the word, the word to the action,” because what Character said he could not do and what in 1998 a Social Security administrative law- judge found that he could not do in September 1995, Character was, in fact, on and before October 1, 1996, doing. He was engaging in “gainful activities] ... in which other people of similar background are actually employed as their principal means of support.”

When a trial court hears ore ten-us testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust. Philpot v. State, 843 So.2d 122 (Ala.2002). Only Character’s opinion as to what he thought he could and could not do or what an administrative law judge thought he could and could not do is disputed, and those opinions were contradicted by undisputed facts as to ■ what Character was in fact doing. The ore tenus rule does not apply to cases involving undisputed facts, because undisputed facts trump disputed opinions, and our review in such a case is de novo. Philpot, 843 So.2d at 125.

Therefore, we reverse the judgment of the trial court and remand the case for proceedings consistent with this opinion. Because of our resolution of the first issue, it is not necessary to address the second issue Aetna raises on appeal.

REVERSED AND REMANDED.

HOUSTON, LYONS, BROWN, JOHNSTONE, and WOODALL, JJ., concur.

      . Goodyear is no longer a party to this appeal.

      . See pages 23-24 of Character's brief to this Court and page 18 of the initial brief filed in this Court by Goodyear and Aetna.

      . William Shakespeare, Hamlet, act 3, sc. 2.