text:
    Patrick L. DAUGHTRY, Jr., Appellant, v. Hendrik K. KUIPER, M.D., a/k/a Hendrick K. Kuiper, M.D., Appellee.
    No. 2001-CA-01758-COA.
    Court of Appeals of Mississippi.
    April 29, 2003.
    Certiorari Denied Aug. 14, 2003.

      James W. Nobles, Jackson, attorney for appellant.
    Lee Davis Thames, R.E. Parker, Vicksburg, attorneys for appellee.
    Before KING, P.J., THOMAS and CHANDLER, JJ.
   KING, P.J.,

for the court.

¶ 1. Patrick L. Daughtry, Jr. filed a complaint in the Circuit Court of Warren County alleging medical malpractice based on a breach of the standard of care for a minimally qualified physician practicing surgery. The jury returned a verdict in favor of Dr. Kuiper. Aggrieved by the jury’s verdict, Daughtry has appealed and raised the following issues which we quote verbatim:

I. Whether, as a matter of law, the Appellee, Hendrick K. Kuiper, M.D.’s own admission of the breach of the standard of care in failing to perform a total thyroidectomy, for which he admitted he had no reasonable explanation, entitled Patrick Daughtry, Jr. to a judgment against him, there being no dispute as to the necessity of the second surgery to remove the substantial portions of the thyroid left in Daughtry’s body by Dr. Kuiper.
II. Whether the honorable trial court erred in refusing Daughtry’s requested peremptory instruction on the issue of liability of Dr. Kuiper, and whether the court erred in denying Daughtry’s Rule 50(b) motion for judgment notwithstanding the verdict, or in the alternative, for a new trial, when the admissions of the Defendant, which were undisputed, clearly showed negligence and a breach of the applicable standard of care as the proximate cause of the damages claimed by Daughtry.
III. Whether the honorable trial court erred in denying Daughtry’s motion to exclude the testimony and opinions of Dr. Ralph Didlake, Kuiper’s expert witness, when his testimony and opinions constitutes [sic] mere surmise, conjecture and speculation, not supported by any facts contained in the record in this cause, and which clearly contradicted the admission of the Defendant that he had no reasonable explanation why the total thyroid was not removed.
IV. Whether the honorable trial court erred in its response to the jury regarding their query regarding the “standard of care” because it failed to state the applicable law.
V. Whether the court erred in granting Defendant’s Instructions [sic] D2A [sic] because the same amounts to an “exercise in judgment on the good faith error in judgment” based on hindsight.

FACTS

¶2. In December 1993, Daughtry noticed a lump in his neck. He saw Dr. Paul W. Pierce in Vicksburg, Mississippi. Dr. Pierce, an internal medicine physician, referred Daughtry to Dr. Kuiper.

¶ 3. During the examination, Dr. Kuiper noted that Daughtry had a mass at the “left root of the neck with a palpable discrete lymph node.” On January 11, 1994, Dr. Kuiper performed an incisional biopsy on Daughtry. Dr. Kuiper made “an incision directly over the mass.” After dividing the platysma muscle, “the mass was identified” and removed. Dr. Kuiper stated that, as far as he could tell, he had removed all of the tissue.

¶ 4. Upon removal, Dr. Kuiper sent the tissue to the Vicksburg Medical Center Pathology Department, where it was determined that the tissue was cancerous. Daughtry was diagnosed as having papillary thyroid cancer. Dr. Kuiper indicated that, based on the pathology report, he planned to remove the “whole thyroid gland.”

¶ 5. On February 1, 1994, Dr. Kuiper performed a “total thyroidectomy” on Daughtry. At trial, Dr. Kuiper testified that he was surprised at the small size of Daughtry’s thyroid but believed that he removed both lobes of the thyroid at the time of the surgery. Dr. Kuiper further indicated that he explored the surgical field and determined that there were no other lymph nodes in that surgical field.

¶ 6. After the surgery, Daughtry was referred to Baptist Hospital for iodine treatment. He stated that the doctors at Baptist indicated that his “thyroid hormone level should start dropping.” His thyroid hormone level did not drop and, as a result, an ultrasound was performed. The ultrasound scan revealed that thyroid tissue was still present in Daughtry.

¶ 7. Daughtry was then referred to the University Medical Center for treatment. On April 7, 1994, Dr. Ann Thompson-Mancino and a resident at the hospital performed the second surgery and removed the residual tissue.

¶ 8. At trial, Dr. Thompson-Mancino indicated that Dr. Kuiper did not adhere to the standard of care for minimally qualified surgeons because he did not perform a total thyroidectomy. However, she did state that she believed that “it was an honest mistake.”

¶ 9. As an expert witness for the defendant, Dr. Didlake indicated that in his opinion, there could have been a “congenital anomaly of the thyroid position or an anatomic distortion due to unusual tumor growth.” Dr. Didlake testified that Dr. Kuiper exceeded the level of care in his treatment of Daughtry.

¶ 10. The jury returned a verdict in favor of Dr. Kuiper. Subsequently, Daughtry filed a motion for judgment notwithstanding the verdict, or in the alternative a new trial, which was denied.

ISSUES AND ANALYSIS

I.

Whether the trial court erred in denying Daughtry’s peremptory instruction and subsequent motion for judgment notwithstanding the verdict, or in the alternative, a new trial.

¶ 11. Daughtry contends that the trial court erred in denying his requested peremptory instruction on the issue of liability and that the trial court erred in denying his Mississippi Rule of Civil Procedure 50(b) motion for judgment notwithstanding the verdict, or in the alternative, a new trial.

¶ 12. This Court reviews a request for a peremptory instruction in the following manner:

The standard requires the trial court to consider the evidence in the light most favorable to the non-moving party, giving that party the benefit of all reasonable inferences that may be derived from the evidence, as well as contemplating any uncontradicted evidence presented by the moving party. The Mississippi Supreme Court has also held that an issue should only be presented to the jury when the evidence creates a question of fact on which reasonable jurors could disagree.

Walker v. Reed, 773 So.2d 374(¶ 9) (Miss.Ct.App.2000) (citations omitted).

¶ 13. A motion for judgment notwithstanding the verdict, or in the alternative, a new trial is viewed as follows:

A motion for jnov is the equivalent of challenging the sufficiency of the evidence to support the jury’s verdict. A jury verdict can only be set aside when it is based on legally insufficient evidence or it is against the substantial weight of the evidence. Furthermore, we review “the evidence as a whole, taken in the light most favorable to the verdict” and will reverse only if “no reasonable, hypothetical juror could have found as the jury found.”

Brandon HMA, Inc. v. Bradshaw, 809 So.2d 611(¶ 13) (Miss.2001) (citations omitted).

¶ 14. In this case, Daughtry maintains that his motion for judgment notwithstanding the verdict should have been granted due to the “uncontradicted evidence” presented. He claims that Dr. Kuiper’s admission that he had no reasonable explanation as to why he failed to remove the entire thyroid gland entitled him to a new trial.

¶ 15. Dr. Kuiper testified that he had properly followed the standard of care and that he believed that he had removed both lobes of the thyroid at the time. The fact that the results of the doctor’s treatment were unsuccessful does not give rise to a presumption of negligence. Kilpatrick v. Mississippi Baptist Medical Center, 461 So.2d 765, 768 (Miss.1984). There existed a conflict in the evidence as to whether Dr. Kuiper had exercised reasonable care. Where such a conflict exists, a peremptory instruction is not appropriate. Herrington v. Spell, 692 So.2d 93, 99 (Miss.1997).

¶ 16. Upon review of the proposed jury instruction and the record, this Court finds that the trial court did not err in denying Daughtry’s peremptory instruction.

II.

Whether the trial court erred by allowing Dr. Didlake, an expert witness to testify.

¶ 17. Daughtry contends that the trial court erred in denying his motion to exclude the testimony and opinions of Dr. Ralph Didlake, Dr. Kuiper’s expert witness. He asserts that Dr. Didlake’s opinions were mere speculation and were not supported by any facts. Dr. Didlake testified that:

A. My opinion is based upon review of the medical records, my training, practice and experience in this area, my knowledge of the two surgeons involved.
A. I think, this tissue was probably somewhat above this distorting the underlying normal anatomy and possibly even containing a congenital anomaly. It’s very difficult to predict or to know from the operative report exactly where this tissue would be because it’s my opinion that there was distortion by tumor as supported in this operative note where it says “Demonstrating changes of nodule or hyperplasia.” So it is my opinion that there was significant distortion and/or a congenital anomaly. So to try to predict or demonstrate where that tissue was would be extremely difficult.

¶ 18. In support of his contention that Dr. Didlake’s opinions should not have been allowed, Daughtry relies on APAC-Mississippi, Inc. v. Goodman, 803 So.2d 1177(¶ 30) (Miss.2002), where it was determined that:

[ U]nder the guidelines of the Mississippi Rules of Evidence Rule 702, the trial judge serves as a “gatekeeper” in ruling on the admissibility of expert testimony. The Supreme Court of Mississippi has advised that “[t]he facts upon which the expert bases his opinion must permit reasonably accurate conclusions as distinguished from mere guess or conjecture.” The facts relied upon “must afford a ‘reasonably accurate basis’ for the expert’s conclusion.”

¶ 19. To determine whether to exclude expert testimony and opinion, this Court adheres to the following:

The admission of expert testimony is controlled by the trial judge’s discretion. This Court will not disturb the trial judge’s decision unless there was a clear abuse of that discretion.
Before a person can testify as an expert, he or she must first be qualified as an expert. In order to qualify as an expert, a person “must possess some experience or expertise beyond that of the average, randomly selected adult.”

Stanton v. Delta Regional Medical Center, 802 So.2d 142 (¶¶ 4, 5) (Miss.Ct.App.2001) (citations omitted).

¶ 20. In this case, the trial judge determined that Dr. Didlake’s testimony and opinion regarding what he thought may have occurred as a result of Dr. Kuiper’s not removing the entire thyroid gland was appropriate based on Watkins v. U-Haul Intern., Inc., 770 So.2d 970(¶ 10) (Miss.Ct.App.2000), which states that:

There are two prongs that must be met under Rule 702 before expert testimony is admissible at trial. One prong requires that the witness be qualified as an expert. In other words, he is an expert and may testify in the form of an opinion or otherwise because of the knowledge, skill, experience, training, or education he holds. The second prong requires that the evidence be scientific, technical, or otherwise cover an area of specialized knowledge which will assist the trier of fact, in this case, the jury, to understand or decide a fact in issue.

The trial judge indicated that Dr. Didlake had been qualified and accepted as an expert, which met the first prong of the test. The trial judge further stated that the second prong had been met when Dr. Didlake testified that he had reviewed the records and based his opinion on knowledge beyond that of a lay person.

¶ 21. There was no objection to having Dr. Didlake qualified as an expert in the field of general surgery. Under our rules of evidence, we find that the trial judge did not abuse his discretion in allowing Dr. Didlake to testify.

III.

Whether the trial court erred in its response to the jury’s query regarding the standard of care for minimally qualified doctors.

¶ 22. Daughtry contends that the trial court erred in its response to the jury regarding their query about the standard of care. He maintains that the trial court failed to state the applicable law.

¶ 23. The jury asked, “What is meant by ‘standard of care for minimally qualified doctors’ in terms of years and/or experience?” After an extensive discussion with all of the attorneys involved regarding the jury’s query, the trial court responded as follows:

BY THE COURT: Let’s see the standard of care does not depend on any certain number of years or experience but requires the skill and knowledge sufficient to meet the licensure requirement for the profession. The physician is required to act as a reasonable prudent physician would act under the same circumstances.

¶ 24. This response is similar to the definition given in West v. Sanders Clinic for Women, 661 So.2d 714, 719 (Miss.1995), which states:

In McCarty v. Mladineo, 636 So.2d 377 (Miss.1994), we explained that a physician “must provide the standard of care provided by minimally competent physicians. If his actions in trying to meet that duty of care are unreasonable, then he must be negligent.” Id. at 380. We defined “minimally competent” as describing “the degree of skill and knowledge that a professional must bring to the task.” Id. at 381.
A minimally competent physician, lawyer, accountant, etc., is one whose skills and knowledge are sufficient to meet the licensure or certification requirements for the profession or specialty practiced. That person is required to act as a reasonably prudent person with the required knowledge and skill would act in the same circumstances.

¶ 25. Daughtry had no objection to the trial court’s response. He is therefore barred from objecting to this for the first time on appeal. Mississippi Baptist Foundation, Inc. v. Estate of Matthews, 791 So.2d 213(¶ 16) (Miss.2001).

IV.

Whether the trial court properly granted Dr. Kuiper’s jury instruction DK-2A.

¶ 26. Daughtry contends that the trial court erred in granting jury instruction DK-2A. He claims that this instruction was not supported by the evidence and was an improper statement of the law. Jury instruction DK-2A stated the following:

A physician is not a guarantor of his diagnosis and treatment, nor is the standard of care that of perfection in the care, treatment or diagnosis of a patient’s condition.
The Court further instructs the jury that medicine is not an exact science and liability may not be imposed upon a physician exercising that degree of care, skill and diligence which would have been provided by a reasonably prudent, minimally competent physician in the field of surgery, and who without the benefit of hindsight may have made a different diagnosis or rendered different treatment.
Instead, a physician has a duty to exercise that degree of care, skill and diligence which would have been provided by a reasonably prudent, minimally competent physician in the field of surgery under like or similar circumstances in the United States.
Thus, even if you should find from a preponderance of the evidence that Hen-drik K. Kuiper, M.D. could have made a different diagnosis or treatment of the Plaintiff, you must return a verdict in favor of Hendrik K. Kuiper, M.D., unless, in caring for the plaintiff, Dr. Kui-per failed to exercise that degree of care, skill and diligence which would have been provided by a reasonably prudent, minimally competent physician practicing in the United States in the field of surgery under the same or similar circumstances.

¶ 27. In reviewing jury instructions, this Court “does not review jury instructions in isolation; rather, they are read as a whole to determine if the jury was properly instructed.” Day v. Morrison, 657 So.2d 808, 814 (Miss.1995). At trial, Daughtry objected to the above jury instruction citing that the instruction used the element of good faith medical judgment contrary to another expert’s opinion. Error of judgment instructions are improper. Day v. Morrison, 657 So.2d 808, 812-15 (Miss.1995). In this instance, the trial judge redacted the first part of the instruction pertaining to the objection. Daughtry’s counsel stated, “I don’t see anything wrong with the rest of it, Your Honor.”

¶ 28. Having waived objection to the remaining portion of the jury instruction, this Court finds that this issue has not been preserved for appeal. Dixie Ins. Co. v. Mooneyhan, 684 So.2d 574, 589 (Miss.1996).

¶ 29. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. SOUTHWICK, P.J., NOT PARTICIPATING.

      . Jury Instruction P-1 (denied): The Court instructs the Jury to return a verdict for the Plaintiff, Patrick Daughtry and against the Defendant, Dr. Hendrick Kuiper, and to assess Plaintiff's damages in accord with other instructions given you in this cause.


source: Caselaw Access Project

author: MYERS, J.,

license: Public Domain

text:
    Beverly Wigley JOHNSON, Appellant, v. Andrew B. JOHNSON, Appellee.
    No. 2001-CA-01484-COA.
    Court of Appeals of Mississippi.
    Aug. 12, 2003.

      Maril Faith Risher, William R. Wright, Jackson, W. Benton Gregg, attorneys for appellant.
    Marcie Tanner Southerland, Vicksburg, attorney for appellee.
    Before McMILLIN, C.J., THOMAS, MYERS and CHANDLER, JJ.
   MYERS, J.,

for the court.

¶ 1. Andrew and Beverly Johnson were granted an irreconcilable differences divorce. The chancellor denied Beverly’s request for lump sum alimony. It is from that denial that Beverly appeals asserting that the trial court erred in failing to award lump sum alimony to the wife.

STATEMENT OF FACTS

¶ 2. Andrew and Beverly Johnson were married on October 17, 1970. The couple had three children during their marriage, all of whom are emancipated. On May 26, 1999, Andrew filed for divorce. He based his complaint for divorce on adultery or, in the alternative, irreconcilable differences. Beverly filed her answer on June 10, 1999. With her answer, Beverly also filed a counter-complaint for divorce based on habitual cruel and inhuman treatment. The two agreed to an irreconcilable differences divorce.

¶ 3. During the marriage, Andrew had worked as a shoe salesperson, a dollar store manager, and a manager at Wal-Mart. Beverly had worked as an accountant assistant, Tupperware salesperson, and baker. The couple also formed two businesses during their marriage. One was an antique store and coffee shop in Franklin, Tennessee. The other business was a bed and breakfast in Vicksburg, Mississippi. The bed and breakfast was purchased for $240,000 and is now worth $895,000. Andrew used $70,000 of his inheritance to purchase the bed and breakfast. The couple spent household money and time in efforts to run these businesses.

¶ 4. In 1996, Andrew inherited the following non-marital assets:

1. A one-half interest in 236 Second Avenue South in Franklin, Tennessee. The lot is valued at approximately $400,000;
2. A one-half interest in a three acre lot in Bedford, Tennessee. The lot is worth $9,000;
3. 1110 Crawford Street in Vicksburg, Mississippi. The lot is valued at $60,000. It has a mortgage on it for an undetermined amount. Andrew allows Beverly’s mother to live in the house for $200 a month; and
4. A small lot in Brevard County, Florida. The lot is worth $6,250.

¶ 5. Andrew’s total non-marital assets are approximately $270,750 less the mortgage on 1110 Crawford Street.

¶ 6. The couple agreed to divide the four cemetery lots and lawn crypt owned by the couple. The couple also agreed to sell the bed and breakfast and split the equity. The value of the bed and breakfast is $895,000 with a mortgage balance of $168,000. The couple also agreed to split Andrew’s retirement account of $164,000 and the $46,857.27 credit card debt.

LEGAL ANALYSIS

¶ 7. In reviewing domestic relations cases, this Court “will not disturb the chancellor’s findings unless manifestly wrong, clearly erroneous, or if the chancellor applied an erroneous legal standard.” Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994) (citing McEwen v. McEwen, 631 So.2d 821, 823 (Miss.1994)).

¶ 8. In Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988), the supreme court listed several factors to be considered by the chancellor in determining whether to award lump sum alimony and amount:

1. Substantial contribution to accumulation of total wealth of the payor either by quitting a job to become a housewife, or by assisting in the spouse’s business. Tutor v. Tutor, 494 So.2d 362 (Miss.1986); Schilling v. Schilling, 452 So.2d 834 (Miss.1984);
2. A long marriage. Jenkins v. Jenkins, 278 So.2d 446 (Miss.1973); Tutor and Schilling, supra;
3. Where the recipient spouse has no separate income or the separate estate is meager by comparison. Tutor, Schilling and Jenkins supra;
4. Without the lump sum award the receiving spouse would lack any financial security. Abshire v. Abshire, 459 So.2d 802, 804 (Miss.1984).

¶ 9. A closer analysis of these eases, however, reveals that the single most important factor undoubtedly is the disparity of the separate estates. Retzer v. Retzer, 578 So.2d 580, 592 (Miss.1990); Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988).

¶ 10. The chancellor reviewed these factors and how the factors applied to the facts in the instant case. The chancellor acknowledged that both Andrew and Beverly had put considerable time and effort into the accumulation of their assets and the running of the businesses; the great length of their marriage; the earning capacity of both Andrew and Beverly were similar, but that Andrew’s separate estate was much greater than Beverly’s since she has no separate estate; that Beverly had benefitted during the marriage from Andrew’s separate estate; and, that with the division of the assets Beverly would have some financial security.

CONCLUSION

¶ 11. We do not find the chancellor’s decision to be an abuse of discretion. The chancery court’s decision not to award lump sum alimony is affirmed. After the sale of the bed breakfast and the division of the retirement account, Beverly will have assets valued at over $400,000 with only $28,178.64 in credit card debt to pay.

¶ 12. THE JUDGMENT OF THE WARREN COUNTY CHANCERY COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: IRVING, J.,

text:
    Rodney GRAY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CA-00826-COA.
    Court of Appeals of Mississippi.
    Aug. 12, 2003.
    Mose Lee Sudduth, Columbus, for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MCMILLIN, C.J., LEE and IRVING, JJ.
   IRVING, J.,

for the court.

¶ 1. Rodney Gray challenges the denial of his motion for post-conviction relief by the Circuit Court of Lowndes County. Gray presents a single issue in his appeal: whether his guilty plea and sentence should be set aside due to ineffective assistance of counsel.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Rodney Gray was indicted on November 1, 1999, by a Lowndes County grand jury on the charge of sale of cocaine. He retained private counsel to represent him. On the first day of his trial, he entered his plea of guilty after his attorney advised him of the realities of the evidence against him. He was subsequently sentenced upon a plea of guilty to a term of eight years in the custody of the Mississippi Department of Corrections and a fine of $5,000.

¶ 4. Gray filed his motion for post-conviction relief alleging that his attorney failed to present any mitigative evidence during Gray’s plea hearing and that his attorney promised him a suspended sentence with full knowledge that no person had ever received a suspended sentence in the particular judicial district for the sale of cocaine.

¶ 5. The trial court granted Gray an evidentiary hearing where both Gray and his attorney testified. Following the hearing, the trial court denied Gray’s motion for relief.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. When reviewing a lower court’s decision to deny a petition for post-conviction relief, this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999) (citing Bank of Mississippi v. Southern Mem’l Park, Inc., 677 So.2d 186, 191 (Miss.1996)). However, where questions of law are raised, the applicable standard of review is de novo. Id.

¶ 7. Gray first alleges that his counsel misrepresented to him that he would receive a suspended sentence if he pleaded guilty. According to Gray, had he known that this was not a realistic alternative, he would not have pleaded guilty to the charge and would have gone to trial. He proclaims that this assurance led him to enter his plea of guilty. Additionally, Gray alleges that his counsel failed to present any mitigative evidence during his plea hearing and that such omission prejudiced him.

¶ 8. In order for Gray to prevail on a claim of ineffective assistance of counsel, he must prove, under the totality of the circumstances, that his attorney’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Gray must show that there is a reasonable probability that, but for his attorney’s errors, he would have received a different result in the trial court. Nicolaou v. State, 612 So.2d 1080, 1086 (Miss.1992). Judicial scrutiny is highly deferential to the attorney, with a strong presumption that the attorney’s conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

¶ 9. We are unpersuaded by Gray’s contentions that his counsel represented to him that if he pleaded guilty he would receive a suspended sentence and that because of this representation, he entered the guilty plea. Gray offers no evidence that he was misled other than his summary assertions that he was coerced and misled by counsel. Gray’s counsel emphatically contradicted Gray in all material particulars. During the evidentiary hearing, Gray’s counsel gave the following testimony:

Q: Now, what promise of a sentence did you make him?
A. I made none because we decided, uh, he — he finally showed up; I met him in the hall, went right out here and met him right by this window, told him that the jury was waiting. We went in the stairwell. I told him — uh, at that time I believe, if I’m not mistaken, Mr. Hedgepeth said, you know, all deals are off, you can plead open.
Q: Right.
A. I told him he could plead open and he would — that it would be up to the court which it ultimately is anyway to what he’s—
Q: Right.
A. —going to get sentenced—
Q: Right.
A. —where there was no deal, and that’s — •
Q: Did you tell him that he was going to get probation—
A. No, I didn’t.
Q: • — for selling cocaine?
A. No.
* * *
Q: And what understanding did you have with Mr. Gray that after he got his eight years that that was really supposed to be three years probation?
A. I didn’t — we never discussed him getting probation.
Q: Now when he pled guilty on the fifteenth of February, two thousand and one, what misunderstanding did he have or did he. relay to you about any of the — the, uh, information in his petition to enter a guilty plea?
A. There was none on the petition.

Moreover, Gray affirmed during the evi-dentiary hearing that during the plea qualification hearing, when he was interrogated by the court, he did not indicate that he felt coerced by his counsel, or that he had any doubts about his sentencing options.

¶ 10. In conjunction with Gray’s second allegation — -that his attorney failed to present any mitigative evidence during his sentencing hearing — we note that Gray did not present to the trial court, and has not presented to this Court, any mitigative evidence that his counsel failed to present. It follows that Gray cannot show prejudice when he has not presented any evidence which may have had a positive impact on his sentence had the trial judge been aware of it.

CONCLUSION

¶ 11. We have reviewed the transcript of the hearing held on the motion for post-conviction relief, as well as the trial judge’s order denying the requested relief, and we are firmly convinced that the trial judge’s finding — that the allegations of the post-conviction relief petition are but a sham— is firmly anchored. Further, we find that Gray has not even approached meeting the requisite level of proof to warrant a finding that his trial counsel was ineffective. Consequently, we affirm the trial court’s denial of the requested relief.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS AND GRIFFIS, JJ., CONCUR. CHANDLER, J., NOT PARTICIPATING.


text:
    Julia Lynn Gates HOROWITZ, Appellant, v. James Winfred PARKER, Jr., Appellee.
    No. 2002-CA-00306-COA.
    Court of Appeals of Mississippi.
    Aug. 12, 2003.

      Eduardo Alberto Flechas, James D. Bell, Madison, attorneys for appellant.
    Stanley Frank Stater, attorney for ap-pellee.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   IRVING, J.,

for the Court.

¶ 1. James Winfred Parker, Jr. filed, in the Chancery Court of Madison County, a motion against Julia Lynn Gates Horowitz, his former wife, seeking specific visitation rights with the parties’ minor children. Sometime after a hearing on the motion, an order granting the requested relief was entered by the chancery court. However, neither party was informed of the court order until forty-nine days after its entry. On the day following receipt of notice of the order, Julia filed a motion seeking to reopen or extend the time for taking an appeal. The chancellor denied the motion, and Julia has prosecuted this appeal.

FACTS

¶ 2. The proceedings occurring prior to the entry of the order are not relevant to the resolution of the issue before us; therefore, we omit a discussion of them and move directly to the reason offered by the chancellor for denying Julia permission to file an out-of-time appeal. The chancellor’s explanation was this:

Rule 4(h) is a two-prong test to consider whether or not a motion for authority to reopen is to be granted, one of which is that either of the parties had not received notice from the clerk; the second part of which is that no party would be prejudiced by such request. In light of the fact that the movant has had sufficient notice of the entry of the court’s order to comply with the court’s order irrespective of any other legal strategies they plan to undertake, I think there has been an ongoing obligation to be in compliance with the court’s order until such time as the parties have been relieved from the duties of that order.
I believe any additional time afforded this petitioner in taking any steps that they believe are necessary to accomplish whatever their ends are at this juncture does operate to the prejudice of Mr. Parker; therefore, the motion for extension of time to file any appeal or to reopen time to file an appeal is hereby denied.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 3. Julia argues that the chancery court erred by denying her motion to reopen since (1) it is undisputed that neither party received notice of the entry of the order until after the thirty-day appeal period had expired, and (2) she promptly filed her motion to reopen after receiving notice that the order had been entered. Accordingly, Julia argues, the chancellor should have permitted the appeal pursuant to Rule 4(h) of the Mississippi Rules of Appellate Procedure. On the other hand, Parker responds that the chancery court was justified in denying Julia’s motion because during the interim period of time, Julia refused to comply with the terms and conditions of the order after belatedly receiving notice of it. He says this caused him to suffer prejudice of sufficient magnitude so as to justify the chancellor’s refusal to allow Julia’s appeal. Additionally, Parker argues that although Horowitz timely filed a motion for permission to file an out-of-time appeal, she made no attempt for approximately three months to bring the motion on for hearing.

¶ 4. Rule 4(h) (Reopening Time for Appeal) of the Mississippi Rules of Appellate Procedure reads as follows:

The trial court, if it finds (a) that a party entitled to notice of the entry of judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 180 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.

M.R.A.P. 4(h).

¶ 5. The chancery court, on August 15, 2001, entered the order from which an appeal was sought. It is undisputed that notice of the entry of the order was not received by either party to this dispute until October 3, 2001. Within a day after learning that the chancellor had entered the order, Horowitz filed a motion to reopen the time for appeal. Her filing was well within the seven days specified in the rule. Therefore, Horowitz clearly satisfies the first of the two prongs of the rule.

¶ 6. The second prong of the rule that must be satisfied is that no party would be prejudiced by the court’s granting the reopening of time for appeal. As already discussed, the chancellor found that Horowitz’s non-compliance with the terms and conditions of the August 15, 2001 order relative to Parker’s visitation rights was a sufficient basis to find prejudice to Parker, thereby providing adequate justification for denying the motion. We disagree.

¶ 7. According to the Rule’s comments: “Prejudice” means some adverse consequence other than the cost of having to oppose the appeal and encounter the risk of reversal, consequences that are present in every appeal. Prejudice might arise, for example, if the appellee had taken some action in reliance on the expiration of the normal time period for filing a notice of appeal.

¶ 8. In Duncan v. Duncan, 774 So.2d 418 (Miss.2000), our supreme court, in discussing the provisions of Rule 4, reversed and remanded a chancellor’s denial of a movant’s timely-filed motion. The court held that “[i]n limiting this decision to the facts before us and taking the rule as written, while also noting the absence of any argument by Helen that she is in any way prejudiced, we find that the trial court erred in failing to grant [the] motion to reopen time for appeal.” Id. at 420(¶ 8).

¶ 9. We find that the chancery court erred when it denied Horowitz’s motion to reopen the time for taking an appeal. The justification for denying the motion amounts to a retaliatory gesture by the court because of Horowitz’s alleged noncompliance with the court’s August 15, 2001 order. This exercise of discretion on the part of the court is at odds with the statute’s contemplation of “prejudice.” Punishment of Horowitz’s non-compliance can be and should be addressed through a motion for citation of contempt.

¶ 10. We find that the chancellor abused her discretion in denying Horowitz’s motion to reopen the time for taking an appeal. Therefore, we reverse and remand the case to the chancery court with directions to enter an order allowing Horowitz fourteen days, from the date of the order to be entered, to file a notice of appeal, appealing the court’s August 15, 2001 order.

¶ 11. In light of our resolution of the issue regarding the refusal of the chancery court to reopen the time to permit the appeal, it is not necessary for us to address whether the chancery court also erred in not permitting an extension of time to file the appeal. On a final matter, we note that Parker filed a motion to strike section two of Horowitz’s appellate brief. Our resolution of the issue presented by this case is not dependant on anything contained in that section of Horowitz’s brief. Consequently, we overrule the motion to strike as moot.

¶ 12. THE JUDGMENT OF THE MADISON COUNTY CHANCERY COURT IS REVERSED AND REMANDED. THE COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS AND GRIFFIS, JJ„ CONCUR. CHANDLER, J., NOT PARTICIPATING.

      . In this regard, we note that the record reveals that Parker filed a motion on November 19, 2001, for contempt against Horowitz for her alleged failure to comply with the August 15, 2001 court order which provided Parker with specific visitation rights. Horowitz subsequently filed a motion for contempt against Parker on December 7, 2001, for his alleged refusal and/or failure to pay the required amount of child support and maintain health insurance for their children. The hearing for these motions was continued several times, and the motions were eventually set to be heard on November 6, 2002. Nothing in the record indicates whether the motions were heard on this date, but neither is relevant to our disposition to this case.


author: HARWOOD, Justice. HOUSTON, Justice

text:
    Ex parte Anthony Charles THOMAS. (In re Anthony Charles Thomas v. State of Alabama).
    1011421.
    Supreme Court of Alabama.
    Dec. 6, 2002.
    David K. Hogg, Dothan, for petitioner.
    William H. Pryor, Jr., atty. gen., and Stephen N. Dodd, asst. atty. gen., for respondent.
   HARWOOD, Justice.

WRIT QUASHED.

MOORE, C.J., and SEE, LYONS, BROWN, WOODALL, and STUART, JJ„ concur.

HOUSTON and JOHNSTONE, JJ., dissent.

HOUSTON, Justice

(dissenting).

I would reverse the judgment of the Court of Criminal Appeals; therefore, I respectfully dissent.

. The United States Supreme Court in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), held that when an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the officer and go about his business. Any refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.

I cannot distinguish the facts in this case from those in Florida v. Royer. In this case, Police Officer Kenny Horn was walking to East Burdeshaw Street (which Officer Horn described as an area known for drug activity) when he saw several individuals (including the petitioner Anthony Charles Thomas) standing in front of a house. No one had made any complaints about Thomas, and it was not uncommon for people in the area to congregate in front of houses. Officer Horn noticed that Thomas was moving something around in his mouth. Although Officer Horn admitted that Thomas could have had candy, chewing gum, a breath mint, or a cough drop in his mouth, Officer Horn believed that Thomas might be concealing crack cocaine in his mouth, so Officer Horn approached Thomas and began questioning him. Thomas attempted to walk away and refused to answer the questions Officer Horn asked. Officer Horn placed his hands on Thomas and asked him to stop and then to open his mouth. I do not believe that Officer Horn had justification to detain Thomas, and I would hold that any evidence gained as a result of that wrongful detention should, upon proper motion, be suppressed. It was not; therefore, I would reverse the conviction. See Ex parte Tucker, 667 So.2d 1339 (Ala.1995).

JOHNSTONE, J., concurs.


author: WOODALL, Justice. JOHNSTONE, Justice

text:
    Danita Kim HOLMAN and D. Mark Holman v. CHILDERSBURG BANCORPORATION, INC., et al.
    1011756.
    Supreme Court of Alabama.
    Dec. 6, 2002.

      Phillip A. Gibson, Huntsville, for appellants.
    Bruce F. Rogers and James W. Davis of Bainbridge, Mims, Rogers & Smith, L.L.P., Birmingham, for appellee Childers-burg Bancorporation, Inc.
    Richard F. Ogle and Robert B. Stewart of Ogle, Liles & Upshaw, L.L.P., Birmingham; and B. Clark Carpenter, Jr., of Wooten, Thornton, Carpenter, O’Brien, Lazen-by & Lawrence, Talladega, for appellee First Bank of Childersburg.
    Gerald L. Miller of Redden, Mills & Clark, Birmingham, for appellee Byron Louie Henry.
   WOODALL, Justice.

Danita Kim Holman and her husband, D. Mark Holman, appeal from a summary judgment in favor of First Bank of Child-ersburg (“the Bank”), Childersburg Ban-corporation, Inc. (“the Corporation”), and Byron Louie Henry, an officer of the Bank at the time of the underlying transaction, in the Holmans’ action alleging breach of an agreement to release a tract of land from a mortgage lien. We affirm.

Events material to this dispute began in 1995, when the Holmans borrowed $275,000 from the Bank in connection with the purchase of approximately 16 acres of real property. The loan was secured by a mortgage on that property. Subsequently, the original 16-acre tract was subdivided into three tracts — tract I, tract II, and tract III. The Holmans allege in their complaint that in 1997 they and Henry reached an oral agreement regarding the disposition of some of the property. Under the alleged agreement, the Holmans would sell tract I. The parties agree that a portion of the sale proceeds were to be paid to the Bank to satisfy the mortgage on tract I. The Holmans allege that the Bank also agreed — in exchange for $175,000 of the purchase price of tract I — to execute an instrument releasing tract II from the mortgage lien, to enable the Holmans to obtain a construction loan to build a residence on tract II “when the time came that [the Holmans] wanted to build the house.”

In May 1997, tract I was sold, and the Holmans paid the Bank $175,000. On May 7, 1997, the Bank executed a “Partial Release,” releasing tract I from the mortgage lien. Subsequently, the Holmans began constructing a house on tract II. However, title searches conducted on or about July 2, 1998, December 11, 1998, and July 25, 2000, revealed to the Holmans that, as of the last date, no mortgage release had been recorded as to tract II. The Holmans allege that, as of December 11, 2000, the date the Holmans filed this action, the defendants were disclaiming any knowledge of an oral agreement to release tract II from the mortgage lien.

On December 11, 2000, the Holmans sued Henry and the Corporation. Their complaint, as eventually amended to include the Bank (the Corporation, the Bank, and Henry are hereinafter referred to collectively as “the defendants”), contained counts alleging (1) breach of a contract to release tract II from the mortgage lien, (2) negligence/wantonness, (8) fraudulent misrepresentation, (4) fraudulent suppression, (5) slander of title, and (6) civil conspiracy. A seventh count, added by amendment, was against the Corporation and the Bank for negligent hiring, training, and supervision of Henry. The complaint alleged that the property had been devalued and depreciated by the acts of the defendants. The complaint sought compensatory and punitive damages.

The defendants answered the last amended complaint, asserting affirmative defenses, including the Statute of Frauds. The Bank counterclaimed against the Hol-mans for amounts allegedly due on their notes with the Bank. Subsequently, the defendants moved for a summary judgment.

On November 2, 2001, the trial court entered a summary judgment for the defendants on various grounds. More specifically, it concluded that the breach-of-contract claims were barred by the Statute of Frauds and. that the tort claims were barred by the applicable statutes of limitations. On May 7, 2002, the trial court, on the Bank’s motion, dismissed the Bank’s counterclaims against the Holmans.

From that judgment, which constituted the final disposition of all the claims asserted in this action, the Holmans appealed. On appeal, the Holmans argue, among other things, that the trial court erred in holding (1) that the Statute of Frauds barred the breach-of-contract claims, and (2) that the statutes of limitations barred the tort claims.

I. Breach-of-Controwt Claims

The Holmans set forth their breach-of-contract claims in the following terms:

“22. After Plaintiffs and defendants ... entered into the agreements set forth above, [regarding the sale of tract I, and the payment of $175,000 of the purchase price in exchange for the Bank’s agreement to release tract II], Plaintiffs placed ... tract One on the market for sale. After [tract I] sold, Plaintiffs and said defendants negotiated and agreed on a release price for both parcels, with the understanding that no further consideration would be required from Plaintiffs to release Tract Two from the Mortgage. This agreement was made so that Plaintiffs could obtain a construction loan and begin construction of their new residence.
“... Pursuant to the agreement, the parties negotiated a release price including the amount necessary to release Tract One from the Mortgage as well as the release of Tract Two without any further consideration. Plaintiffs paid said defendants the sum of $175,000.00 ... from the sale proceeds resulting from the sale of Tract One.
“26. Pursuant to the agreement entered into by the parties, and at defendants’ request, [a] partial Mortgage [release was] sent to the Bank in regard to ... Tract Two. Said partial Mortgage [release was] either signed but not recorded, lost, misplaced, or willfully disregarded; but in any event, [was] never recorded in the Probate Office of Madison County, Alabama.
“27. As a result of the aforesaid actions, defendants ... breached the agreement entered into between the parties by failing or refusing to release ... Tract Two from the Mortgage.
“29. As a direct consequence of defendants’ ... breach of the aforesaid agreements, Plaintiffs, DANITA KIM HOLMAN and D. MARK HOLMAN, are greatly restricted in the free enjoyment, use and disposition of their property; the property has been greatly devalued and depreciated; Plaintiffs have been unable to refinance the property without being forced to pay the unreasonable, arbitrary and capricious amount demanded by said defendants; [and] Plaintiffs have been exposed to liability to other parties now holding Mortgages against the property....
“WHEREFORE, Plaintiffs demand judgment against each of the defendants .... jointly and severally, in a sum to be determined by a jury, which will fairly and adequately compensate Plaintiffs for their injuries and damages sustained .... ”

(Emphasis added.) The defendants contend that the Statute of Frauds bars these claims.

Alabama’s Statute of Frauds provides, in pertinent part:

“In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:
“(5) Every contract for the sale of lands, tenements or hereditaments, or of any interest therein, ... unless the purchase money, or a portion thereof is paid and the purchaser is put in possession of the land by the seller.... ”

Ala.Code 1975, § 8 — 9—2(5). This section “requires that all contracts for the sale of real property be in writing and be signed by the party against whom the contract is asserted. The writing must also contain a recital of the consideration supporting the contract.” Pickard v. Turner, 592 So.2d 1016, 1020 (Ala.1992). “[I]t is clear that an agreement to release lands from the effect of a mortgage is an agreement for the transfer of real property and thus falls within the Statute of Frauds.” Casey v. Travelers Ins. Co., 585 So.2d 1361, 1363 (Ala.1991).

The Holmans do not dispute that the alleged agreement is subject to the Statute of Frauds. They contend, however, that they have sufficiently established that a release, or a commemorative writing, exists.

A. Evidence of an Agreement

In this connection, the Holmans submitted the affidavit of Dennis Abbott, their former legal counsel. Abbott stated, in pertinent part:

“On or about August 29, 1997, I was contacted by the [Holmans] to close a construction loan on [tract II]. I was told by the [Holmans] that there was no payoff amount for this tract and that they had previously entered into an agreement with [the Bank] to the effect that if they sold [tract I] and their personal residence and paid [the Bank] certain agreed upon amounts, the Bank would, in turn, release [tract II], with no additional consideration so that the [Hol-mans] could obtain a construction loan. On or about August 29,1997,1 contacted Louie Henry to confirm the payoff amount and/or release agreement. Mr. Henry informed me that the Bank had, in fact, agreed to release [tract II] with no additional consideration. He acknowledged to me that he was aware that the Holmans were going to build a house on that tract and that the Bank had entered into an agreement several months prior thereto that it would release [tract II] for no additional consideration conditioned on the sale of [tract I] and the payment of $175,000.00 to the Bank.... I informed Mr. Henry that a title search revealed that [tract II] had not been released. He advised me to prepare a partial mortgage release and send it to him and that he would execute it and file it of record. Based on these representations, I closed the construction loan on the property and mailed the partial mortgage release to Mr. Henry.
“On or about July 2, 1998,1 was again contacted by the [Holmans] to close a second mortgage on [tract II] to enable [them] to complete construction of their residence. Title work done at that time revealed that [tract II] had still not been released from the original mortgage to [the Bank]. I contacted [the Bank] at that time and received assurances that the failure to release the property was merely an oversight and that if a partial mortgage release was again sent to the Bank, it would be executed and filed of record. Based on these representations, I closed the second mortgage on [tract II] and mailed another partial mortgage release to [the Bank].
“On or about December 11, 1998, I was again contacted by the [Holmans] to close a second mortgage on [tract II]. The prior second mortgage was to be paid off and additional funds were being borrowed by the [Holmans]. Title work performed at the time revealed the existing second mortgage and also revealed that [the Bank] had still not released [tract II] from the original mortgage. I obtained a payoff on the existing second mortgage and contacted [the Bank] concerning its failure to release [tract II] as agreed. I again received assurances from the Bank that the failure to release the property was merely an oversight and that if I would send yet another partial mortgage release, it would be executed and filed for record. To the best of my knowledge and belief, I insisted that a partial mortgage release be faxed to the Bank and that the release be signed and faxed back to me for my file so that I could be assured at that time that the mortgage would be released. To the best of my knowledge, this was done and an executed copy of the partial mortgage release was faxed to my office. Based on the repeated assurances from [the Bank], the transaction was closed with a check being sent to pay off the existing second mortgage holder and an original partial mortgage release being sent to [the Bank] for execution and recordation.
“I had no other dealings with the [Holmans’] property until on or about July 25, 2000. The [Holmans] contacted me and informed me that the second mortgage was being refinanced and that title work done by another attorney revealed that [tract II] had never been released from the original ... mortgage. Subsequently, I contacted [the Bank] and was advised that Louie Henry no longer worked for the Bank. I talked with another bank official and was advised that the Bank was not in a position to execute and file a release....
“On or about August 1, 2000, I talked with Louie Henry by telephone. The only property we discussed was [tract II] where the [Holmans’] residence was located. Henry assured me at that time that the Bank had agreed to release [tract II] -from the original mortgage and that, in his best judgment, he had actually signed the partial mortgage release. He further stated that he did not know why the release had not been recorded or why the Bank was now refusing to release the property.”

The Holmans contend that this affidavit, “at the very least, establishes an issue of fact regarding the existence of the [Bank’s] release of the subject property.” Holmans’ Brief, at 21. They argue, in other words, that the defendants have admitted to an agreement to execute and record a release, and that, therefore, they are estopped to deny its existence. We disagree with this contention.

To be sure, “a party may be equitably estopped to raise the Statute of Frauds as a defense under certain limited circumstances.” Pate v. Billy Boyd Realty & Constr., Inc., 699 So.2d 186, 192 (Ala.Civ.App.1997). However, this Court “has made clear that a party cannot create an ‘estoppel bar to raising the Statute of Frauds merely because a party admits, either judicially or extrajudicially, the existence of or the substance of an oral contract within the Statute.’ ” Rice v. Barnes, 149 F.Supp.2d 1297, 1302 (M.D.Ala.2001) (emphasis added) (quoting Pate, 699 So.2d at 192). This is so, because “to enforce an oral contract against a party merely because he or she admitted to its existence and substance ... is likely to promote perjury. Instead of admitting to the contract, the breaching party would be tempted to deny the agreement in order to escape liability.” Darby v. Johnson, 477 So.2d 322, 327 (Ala.1985); see also Durham v. Harbin, 530 So.2d 208, 212-13 (Ala.1988).

Despite the statements in Abbott’s affidavit, neither an original nor a copy of the partial release relating to tract II has surfaced in this action. Neither has any writing evidencing the alleged agreement between the Bank and the Holmans for the release of tract II in exchange for $175,000 of the sales price of tract I been produced. Moreover, to the extent that Henry’s alleged assurances regarding the understandings of the parties constitute “admissions,” they do not, as a matter of law, create a bar to the operation of the Statute of Frauds.

The Holmans next contend that the Statute of Frauds does not bar their action, because, they insist, they have “met the partial performance exception requirements to the Statute of Frauds.” Hol-mans’ Brief, at 24. We also disagree with this contention.

B. Partial Performance

Section 8-9-2(5) expressly excepts from its operation purchasers who pay “the purchase money, or a portion thereof,” and who are consequently “put in possession of the land by the seller.” (Emphasis added.) Construing the predecessor to § 8-9-2, this Court has stated:

“Unless the facts bring the case within one of the statutory exceptions, if the parol agreement between the two parties for the purchase of real estate from a third person ‘involves a purchase by, or in the name of, one party and a subsequent transfer, conveyance, or vesting of an interest in the property to or in the other party, the statute of frauds applies.’ 37 C.J.S., Frauds, Statute of, § 119, subsec. b, p. 614.
“If, however, the contract has been fully performed, by the seller putting the purchaser in possession under the contract and the purchaser paying the seller a part or all of the purchase price, the contract is valid and is saved by the exception.”

Talley v. Talley, 248 Ala. 84, 87, 26 So.2d 586, 589 (1946). Although this Court has suggested that the exception would apply to oral agreements to release realty from a mortgage lien, see Casey v. Travelers Ins. Co., 585 So.2d 1361, 1364 (Ala.1991), the Holmans have not met the “possession” requirement.

In that connection, this Court explained:

“The possession requirement of the ‘part performance exception’ to the requirement of a writing in land sales contracts was addressed in Houston v. McClure, 425 So.2d 1114 (Ala.1983). In that case, we reversed a summary judgment entered in a specific performance suit because there was a factual issue as to whether the acts of possession in the case were ‘referable exclusively to the contract.’ This requirement is mentioned in Hagood v. Spinks, 219 Ala. 503, 122 So. 815 (1929), in which the Court said:
“ ‘To take a case out of the statute of frauds ... upon the ground of part performance, the acts of possession must be clear and definite, and referable exclusively to the contract, and by authority of the vendor. The existence of the contract and its terms should be established by competent proof to be clear, definite, and unequivocal in all its terms. If its terms, or the necessary acts of part performance, are not sustained by satisfactory proof, specific performance will not be decreed.’ (Citations omitted [in Smith ].)
219 Ala. at 504, 122 So. at 816. The meaning of ‘referable exclusively to the contract’ was discussed in Jones v. Jones, 219 Ala. 62, 121 So. 78 (1929). The Court stated as follows:
“ ‘The cases also hold that the possession of the purchaser must be exclusively referable to the contract ... “that is to say, it must be such possession that an outsider, knowing all the circumstances attending it save only the one fact, the alleged oral contract, would naturally and reasonably infer that some contract existed relating to the land, of the same general nature as the contract alleged” (36 Cyc. 660)....’
“219 Ala. at 63-64, 121 So. at 78. The Jones Court went on to say that
“ ‘... the possession must be referable to the promise and not to some domestic relationship of the vendor and vendee. 36 Cyc. 660, note 77. Where the person having the legal title to land is in possession, it is well established that such possession will be referred to the legal title. Here, the title being in the father, and both father and son being in possession, the law refers the possession to the father.’ (Citations omitted [in Smith ].)
“219 Ala. at 64, 121 So. at 78. The Court went further in adopting the following excerpt:
“ ‘In 36 Cyc. 660, is the following: “If the possession * * * could be accounted for just as well by some other right or title actually existing in the vendee’s favor, or by some relation between him and the vendor other than the alleged oral contract, it is not such a possession as the doctrine requires.’ ”

Smith v. Smith, 466 So.2d 922, 924-25 (Ala.1985) (emphasis added; footnote omitted). Elsewhere, this Court explained that “ ‘ “[t]he acts of part performance must ... be such as would not be done but for the [alleged oral contract].” ’ ” Quinlivan v. Quinlivan, 269 Ala. 642, 645, 114 So.2d 838, 840 (1959) (emphasis added) (quoting Gibson v. Bryant, 267 Ala. 97, 99, 100 So.2d 32, 34 (1958)). The exception applies only where “ ‘ “the acts of part performance cannot be explained consistently with any other contract than the one alleged.” ’ ” 269 Ala. at 645, 114 So.2d at 840 (quoting Gibson, 267 Ala. at 99, 100 So.2d at 34) (emphasis added).

It is clear from the discussion in Smith that the part-performance exception cannot apply in this case. This is so because the Holmans were never out of possession of tract II at any relevant time. On the contrary, they have been in exclusive possession of tract II since 1995, the date they purchased of the original 16-acre undivided parcel. In other words, they were in possession of tract II for approximately two years before it was created from the larger parcel, and for two years before it became the subject of an alleged oral agreement. See Talley v. Talley, 248 Ala. 84, 88, 26 So.2d 586, 589 (1946) (“payment and possession must concur to save the purchase from the grasp of the statute”). Clearly, the Holmans were not put in possession of tract II by the alleged oral agreement.

Relying on the rule expressed in Smith, the Bank contends:

“Contrary to the [Holmans’] contentions, [their] possession of [tract II], the ... construction of their home thereon, and [the Bank’s] consent thereto is not adverse to [the Bank’s] mortgage on the subject property, and the [Holmans’] possession of the property, and construction of their home thereon, is certainly not referable exclusively to the alleged oral contract to release the subject property from [the Bank’s] mortgage. Simply stated, an outsider who observed the [Holmans’] possession of the property and the construction of a home thereon with [the Bank’s] consent, would not ‘naturally and reasonably infer’ that [the Bank] had agreed to release the subject real property from its mortgage thereon.”

Brief of First Bank of Childersburg, at 19.

We agree with this contention. The Holmans’ construction of a residence on land to which they undisputedly had legal and physical possession would not inevitably lead an “outsider” to conclude that the alleged oral contract existed. The facts of this case clearly fail to satisfy the part-performance requirement. Consequently, the trial court did not err in holding that the Statute of Frauds barred the breach-of-contract claims.

II. Tort Claims

The Holmans also contend that the trial court erred in holding that the applicable statutes of limitations barred their negligence/wantonness and other tort claims. The Bank, on the other hand, argues that the negligence/wantonness claims are also barred by the Statute of Frauds. More specifically, it states:

“There is not much left to say about [the negligence/wantonness claims], because the result is dictated by our argument as to [the breach-of-contract claims]. The only duty alleged ... in this case is predicated upon an alleged contractual duty to release land from a mortgage; thus, the [Holmans’] claims of negligence are actually claims arising in contract.”

Brief of First Bank of Childersburg, at 21 (emphasis added). We agree that the Statute of Frauds also bars the negligence/wantonness claims. Indeed, it is this alleged duty, and the breach thereof, that underlies all the tort claims.

As a general rule, “[i]f the proof of a promise or contract, void under the statute of frauds, is essential to maintain the action, there may be no recovery.” Pacurib v. Villacruz, 183 Misc.2d 850, 861, 705 N.Y.S.2d 819, 827 (N.Y.Civ.Ct.1999) (emphasis added); see also Dwight v. Tobin, 947 F.2d 455, 460 (11th Cir.1991); McDabco, Inc. v. Chet Adams Co., 548 F.Supp. 456, 458 (D.S.C.1982) (it is a “well accepted doctrine that one cannot circumvent the Statute of Frauds by bringing an action in tort, when the tort action is based primarily on the unenforceable contract”); Weakly v. East, 900 S.W.2d 755 (Tex.Ct.App.1995). This is so, because, “[i]f a plaintiff was allowed to recover the benefit of a bargain already barred by the statute of frauds, the statute of frauds would become meaningless.” Sonnichsen v. Baylor University, 47 S.W.3d 122, 127 (Tex.Ct.App.2001). “Thus, the statute of frauds bars a [tort] claim when a plaintiff claims as damages the benefit of the bargain that he would have obtained had the promise been performed.” Id. (emphasis added).

. This Court has not expressly applied or rejected the general rule. See Jamison, Money, Farmer & Co. v. Standeffer, 678 So.2d 1061, 1068 (Ala.1996) (professional-liability action) (Houston, J., concurring in the result). Standeffer was a plurality opinion, authored by Justice Ingram, with three Justices concurring in the opinion and Justice Houston concurring in the result. The plurality suggested that the effect of the Statute of Frauds might be limited strictly to claims actually styled as breach-of-contract claims. Id. at 1066.

In his special concurrence, Justice Houston reasoned that the duty arose out of the accountant-client relationship of the parties, rather than out of a contractual promise. Id. at 1068. Thus, he explained, the Statute of Frauds did not apply. Moreover, he cautioned:

“I would not hold that a duty created by contract would not be subject to a Statute of Frauds defense in a negligence action based upon a breach of that duty.... I have found no Alabama case that addresses this issue, and I would wait to address this issue until it is necessary.”

678 So.2d at 1069.

The issue is squarely presented in this case. The Holmans’ recovery — whether under the breach-of-contract theory or under any of the tort theories — turns on the existence of an oral promise to record a release as to tract II, the proof of which is barred by the Statute of Frauds. This conclusion is illustrated by brief analyses of the allegations and arguments underlying the Holmans’ various tort claims, with reference to the allegations of the breach-of-contract claims.

A. Negligence/Wantonness

The basis for the Holmans’ negligence/wantonness claims is that the defendants “had a duty to execute the appropriate documents and to take the necessary steps and action required to sign, file and/or record said documents in an effort to finalize and complete the agreements made between the parties,” and that they “breached said duty by negligently and/or wantonly failing to sign, file and/or record the appropriate documents necessary to release Tract Two.” (Emphasis added.) As a result, the Holmans allege, they “are greatly restricted in the free enjoyment, use and disposition of their property.” They also allege that “the property has been greatly devalued and depreciated,” and that they “have been unable to refinance the property without being forced to pay the unreasonable, arbitrary and capricious amount demanded by [the] defendants.” Otherwise stated, the Holmans’ argument is that the “duty” the defendants owed was to honor the alleged oral agreement to release Tract II, and the only “breach” was their failure to honor that agreement. In that connection, the Hol-mans argue that the defendants’ “negligent and wanton conduct” consisted of their “refus[al] to provide a mortgage release of the subject Tract II.” Holmans’ Brief, at 31. Clearly, proof of the existence of the alleged oral agreement “is essential,” Pacurib, 183 Misc. at 861, 705 N.Y.S.2d at 827, to their negligence/wantonness claims. If the Bank did not promise to release tract II, it owed no duty to do so.

B. Fraud

Counts three and four purported to allege claims of fraud. In count three, the Holmans alleged that the defendants “represented to [them] ... that defendants had agreed to release.... Tract Two from the Mortgage, and that defendants would execute a partial mortgage release ... so that [the Holmans] could obtain a construction mortgage to build a house thereon.” These representations, the Holmans allege, “were false, and [the Holmans] relied on said representations to their detriment.” Similarly, count four alleged that the defendants “knew at the time of contracting with the [Holmans], and at different stages throughout the life of the contract, that ... Tract Two [was] not and/or [was] never intended to be released from the Mortgage.” (Emphasis added.) “These facts were material,” the Holmans alleged, “and defendants had an obligation to disclose said facts to [the Holmans].” Counts three and four alleged damages in terms identical to those alleged in counts one and two. The Holmans also argue:

“The facts of the instant case clearly reveal that the [Holmans] fully expected the Defendants to file the release for the two acre parcel upon which they built their home. It was not until July/August 2000 that they began to believe that the Defendants had misrepresented or suppressed facts to them concerning the release and that the Defendants had no intention of performing on their agreement to release [tract II].”

Holmans’ Brief, at 33.

Unless the Bank had, in fact, 'promised, as the Holmans alleged in count one, to release tract II upon payment of $175,000, there could be no misrepresentation or fraudulent concealment, as alleged in counts three and four. Thus, here, the facts underlying the fraud claims merely duplicate those underlying the breach-of-contract claims.

C. Slander of Title

Count five alleged slander of title. In this count, the Holmans aver that the defendants have continued to claim some interest in tract II, “when [they] are not entitled to any right, title and/or interest whatever.” In this connection, the Hol-mans also argue: “As argued above, the conduct of the Defendants resulted in an injury to the Holmans in July/August 2000 when they refused to file the mortgage release as promised earlier by the Defendants.” Holmans’ Brief, at 34.

The gravamen of this claim is that the defendants lost their interest in tract II through the alleged oral agreement to release the property, but that they nevertheless continued to claim an interest, thereby disparaging the Holmans’ title. Once again, the existence of the oral agreement is an essential element of this tort claim. However, the Statute of Frauds bars proof of that alleged agreement.

D. Negligent Hiring and Supervision

Count seven alleges that Byron Louie Henry “negligently and/or wantonly fail[ed] to sign, file and/or record the appropriate documents necessary to release Tract Two.” The complaint avers that this failure was the result of the Bank’s negligent hiring, training, and supervision of Henry. It is undisputed that, absent the alleged oral agreement, neither Henry nor the Bank had a duty to “sign, file and/or record the appropriate documents necessary to release Tract Two.” Therefore, the validity of this count also turns on the existence of an oral agreement that is subject to the Statute of Frauds.

III. Summary

In accord with the general rule, we hold that where, as here, an element of a tort claim turns on the existence of an alleged agreement that cannot, consistent with the Statute of Frauds, be proved to support a breach-of-contract claim, the Statute of Frauds also bars proof of that agreement to support the tort claim. Were the rule otherwise, the Statute of Frauds could be effectively avoided by the simple wording of the complaint.

The Holmans’ tort claims all turn on proof of an alleged oral promise to release real estate from a mortgage lien. Because proof of such a promise is barred by the Statute of Frauds for purposes of the breach-of-contract claims, the tort claims also fail as a matter of law. Summary judgment was properly entered for the defendants. That judgment is therefore affirmed.

AFFIRMED.

MOORE, C.J., and HOUSTON, SEE, LYONS, BROWN, HARWOOD, and STUART, JJ., concur.

JOHNSTONE, J., concurs in the rationale in part and concurs in the judgment.

JOHNSTONE, Justice

(concurring in the rationale in part and concurring in the judgment).

But for two exceptions, I concur in the rationale. Because the exceptions do not affect the result, I also concur in the judgment.

My first exception to the rationale is that the main opinion misses the point of the Holmans’ very first argument. Their first argument is that enforcement of the agreement by the Bank to release the mortgage on tract II is not barred by the Statute of Frauds, § 8 — 9—2(5), Ala.Code 1975, since the agreement is, in fact, “in writing and subscribed by the party to be charged therewith” as required by that statute and that, because this writing has been lost or destroyed, it may be proved by secondary evidence consisting of the affidavit of the Holmans’ former lawyer Dennis Abbott. The Holmans aptly cite Rule 1004(1), Ala. R. Evid., which allows proof of lost or destroyed documents by secondary evidence. The reason the Hol-mans’ argument to this effect fails is that the particular secondary evidence they have submitted does not constitute substantial evidence of the fact they seek to prove — the existence of a writing memorializing the agreement.

The statements in the Abbott affidavit that most tend to prove the existence of such a writing read:

“To the best of my knowledge and belief, I insisted that a partial mortgage release be faxed to the Bank and that the release be signed and faxed back to me for my file so that I could be assured at that time that the mortgage would be released. To the best of my knowledge, this was done and an executed copy of the partial mortgage release was faxed to my office.” (Emphasis added.)

The affiant’s qualifying his statements by saying that they are to the best of his knowledge and belief, or to the best of his knowledge, deprives them of the probative value essential to constitute substantial evidence in opposition to the motion for summary judgment. Florence Bldg. & Inv. Ass’n v. Scholl, 107 Ala. 531, 534, 18 So. 108, 109 (1894) (“[Tjhey deposed merely that it was correct and true ‘to the best of their knowledge and belief.’ We held, in Globe Iron & Roofing & Corrugating Co. v. Thatcher, 87 Ala. 458, [6 So. 366 (1888) ], that an affidavit of this character, made by the claimant, was insufficient, and fatal to the validity of the hen.”); Day v. Merchants Nat’l Bank of Mobile, 431 So.2d 1254, 1255-57 (Ala.1983) (The plaintiffs affidavit qualifying the statements of fact with the expression “ ‘[t]o the best of my knowledge, information, and belief ”... “was not based on personal knowledge, [and was] inadequate for purposes of Rule 56(e), [Ala. R. Civ. P.]”); Roberts v. Security Trust & Sav. Bank of Brilliant, 470 So.2d 674, 675-76 (Ala.1985) (The plaintiffs affidavit qualifying the statements of fact with the expression “[t]o the best of my personal knowledge” was “based on mere belief and, thus, [was] inadequate for purposes of Rule 56( [e]), Ala. R. Civ. P.”). See also Oliver v. Brock, 342 So.2d 1, 4 (Ala.1977) (“[B]elief, no matter how sincere, is not equivalent to knowledge [and] a statement in an affidavit that the affiant verily believes does not satisfy the requirements of Rule 56(e).”); Sooudi v. Century Plaza Co., 622 So.2d 1275, 1278 (Ala.1993) (“Affidavits must contain statements based upon the personal knowledge of the affi-ant, and mere speculation and statements of subject beliefs are not the equivalent of personal knowledge.”); Henderson v. Hanson, 414 So.2d 971, 973 (Ala.Civ.App.1982) (“Mere belief is not equivalent to knowledge, and a statement in an affidavit that the affiant verily believes will not satisfy the requirements of rule 56(e)[, Ala. R. Civ. P.]”).

My second exception to the rationale is that I respectfully disagree with the statement that, “[t]his Court has not expressly applied or rejected the general rule,” 852 So.2d at 699, that “[a]s a general rule, ‘[i]f the proof of a promise or contract, void under the statute of frauds, is essential to maintain the action, there may be no recovery.’ ” 852 So.2d at 699 (quoting Pacurib v. Villacruz, 183 Misc.2d 850, 861, 705 N.Y.S.2d 819, 827 (N.Y.Civ.Ct.1999)) (emphasis added in main opinion). In Hinkle v, Cargill, Inc., 613 So.2d 1216, 1220 (Ala.1992), this Court said:

“Cargill argues that a fraud action cannot be based on the breach of an unwritten contract that is void under the Statute of Frauds. As the above-cited authorities show, however, the Statute of Frauds does not bar proof of a fraud committed by means of a promise that ordinarily could not be enforced as a contractual promise because of the Statute of Frauds. Furthermore, ‘it is well settled in Alabama that fraud may be predicated upon a breach of contract which is void, because not in writing, where the contract was made for the purpose of perpetrating the fraud.’ Caron v. Teagle, 408 So.2d 494, 496 (Ala.1981).”

Likewise, in US Diagnostic v. Shelby Radiology, P.C., 793 So.2d 714 (Ala.2000), this Court affirmed a money judgment in favor of a plaintiff on a claim of promissory fraud based on an oral promise which was void by operation of the Statute of Frauds. While I agree with the main opinion that we should adopt the general rule and that we should not countenance tort actions based on promises void by operation the Statute of Frauds, we should not do so without recognizing Hinkle, su pra, U.S. Diagnostic, supra, and their ancestors and any progeny and overruling them to the extent that they allow promissory fraud actions or other tort actions dependent entirely on promises void by operation of the Statute of Frauds.

      . This allegation refers to a letter dated August 7, 2000, in which the Bank offered to release its lien on tract II for $100,000.

      . On appeal, the Holmans do not argue that they have alleged, or offered evidence of, promissory fraud. Thus, cases recognizing a promissory-fraud exception to the Statute of Frauds, see, e.g., US Diagnostic v. Shelby Radiology, P.C., 793 So.2d 714 (Ala.2000), need not be considered.

      . Of course, the civil-conspiracy claim turns on the viability of the substantive tort claims. McLemore v. Ford Motor Co., 628 So.2d 548, 551 (Ala.1993) (if the "underlying cause of action is not viable, the conspiracy claim must also fail”).

      . We have considered the other issues raised by the Holmans, and we find each to be immaterial to the resolution of this case or to be without merit.

      . While the Holmans do not characterize their fraudulent misrepresentation claim as "promissory fraud,” they plead all of the essential elements of that species of promissory fraud recognized by US Diagnostic, supra, and the record contains substantial evidence tending to prove those elements. “The 'character of a pleading is determined and interpreted from its essential substance, and not from its descriptive name or title.’ ” Ex parte Alfa Mutual General Ins. Co., 684 So.2d 1281, 1282 (Ala.1996) (quoting Union Springs Tel. Co. v. Green, 285 Ala. 114, 117, 229 So.2d 503, 505 (1969)). Notwithstanding the lack of explication in the Holmans’ briefs, I am concerned that part of the text of the main opinion is inconsistent with our previously published cases, as I discuss in this special writing.


author: MOORE, Chief Justice.

text:
    Ronald DICKERSON, Sr. v. ALABAMA STATE UNIVERSITY et al.
    1011053.
    Supreme Court of Alabama.
    Dec. 6, 2002.
    Donald Maurice Jackson, Montgomery, for appellant.
    Stephen E. Whitehead and Jennifer A. McCammon of Lloyd, Gray & Whitehead, P.C., Birmingham, for appellees.
   MOORE, Chief Justice.

In 2000, Alabama State University (“ASU”) terminated Ronald Dickerson from his position as head football coach at ASU. As a result of that termination, Dickerson sued ASU, then president of ASU Roosevelt Steptoe, and various members of the Board of Trustees of ASU (“the Board”) in their official and individual capacities. The defendants filed motions to dismiss on the grounds of sovereign and State-agent immunity. Montgomery Circuit Judge Sarah M. Greenhaw, in an order dated November 29, 2001, granted the motions and dismissed Dickerson’s claims without prejudice, with one exception: the trial court specifically denied the motions to dismiss “as to that portion of Count VIII [alleging deprivation of due process] requesting equitable relief.” The trial court did not certify its order of dismissal as a final judgment pursuant to Rule 54, Aa. R. Civ. P. On December 14, 2001, Dickerson filed a motion to alter, amend, or vacate the judgment, or, in the alternative, for a new trial. Judge Greenhaw denied Dickerson’s motion on January 15, 2002. Dickerson appeals to this Court from Judge Greenhaw’s denial of his post-judgment motion. The defendants argue that this appeal should be dismissed.

An appeal as a matter of right can be taken “[f]rom any final judgment of the circuit court.” § 12-22-2, Ala.Code 1975 (emphasis added). The general rule is that a trial court’s order is not final unless it disposes of all claims as to all parties. Rule 54(b), Ala. R. Civ. P. However, when an action contains more than one claim for relief, the court may “direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” Rule 54(b) (emphasis added). “An order is not final if it permits a party to return to court and prove more damages or if it leaves open the question of additional recovery.” Grantham v. Vanderzyl, 802 So.2d 1077, 1080 (Ala.2001).

In the present case, Judge Green-haw’s order does not dismiss Dickerson’s claim seeking equitable relief for the alleged deprivation of his due-process rights. Although all of the other claims against all of the defendants were dismissed, Judge Greenhaw’s order never provided “an express determination” that there was no just reason for delay in the entry of a judgment and never expressly directed the entry of a judgment under Rule 54(b). Thus, because Judge Greenhaw’s order “leaves open the question of additional recovery,” 802 So.2d at 1080, as to Dickerson’s due-process claim, the order is not a final judgment. Because this Court therefore lacks jurisdiction to entertain Dickerson’s appeal, his appeal is dismissed. Conseco Fin. Corp. of Alabama v. Slay, 839 So.2d 617, 618-19 (Ala.2002).

APPEAL DISMISSED.

HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.