text:
    Mary Jean POOLE, Appellant v. AMERICAN PUBLIC LIFE INSURANCE COMPANY and John Holmes, Appellees.
    No. 2003-CA-00912-COA.
    Court of Appeals of Mississippi.
    July 27, 2004.

      Clarence McDonald Leland, Brandon, attorney for appellant.
    Sean Roberts Guy, 0. Stephen Montag-net, Pas Christian, Mary Clay Wadlington Morgan, Jackson, Amanda Jones, James William Manuel, attorneys for appellees.
    Before KING, C.J., LEE and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Mary Poole filed a complaint for damages against American Public Life Insurance Company and its agent, John Holmes, in the Rankin County Circuit Court. The defendants filed a motion to dismiss, claiming that the doctrine of forum non conveniens required that the case be dismissed. The circuit judge agreed and entered an order dismissing the case. Finding no error, we affirm.

FACTS

¶ 2. On September 14, 2000, John Holmes, an agent for American Public, sold Poole a disability insurance policy. The transaction occurred at Poole’s place of employment, the Office of Mental Health, Eastern Louisiana Mental Health System, in Jackson, Louisiana. Poole claims Holmes told her that she would be covered immediately. Poole authorized American Public to deduct $55.40 per pay period from her State of Louisiana payroll check.

¶ 3. On December 20, 2000, Poole fell and broke her heel. Shortly thereafter, Poole filed a claim for benefits.

¶ 4. On January 9, 2001, after her claim had been submitted, Poole received a letter from American Public thanking her for her recent application for disability insurance. The letter stated that Poole was not eligible for coverage under the group disability policy because she was an employee of the State of Louisiana.

¶ 5. On January 9, 2002, Poole filed a complaint against American Public and its agent, John Holmes, in the Circuit Court of Rankin County. American Public filed a motion to dismiss or, in the alternative, for summary judgment, and Holmes filed a motion to dismiss for lack of personal jurisdiction or, in the alternative, for forum non conveniens. The circuit judge granted the motions to dismiss relying on the doctrine of forum non conveniens. Poole then properly perfected her appeal.

STANDARD OF REVIEW

¶ 6. A lower court’s dismissal based on the doctrine of forum non conveniens should only be reversed if the trial court abused its discretion or applied an erroneous legal standard, and the dismissal should be accorded great deference on appeal. Metropolitan Life Ins. Co. v. Aetna Cas. & Sur. Co., 728 So.2d 573, 575 (Miss. 1999).

ANALYSIS

¶ 7. In Missouri Pacific R. Co. v. Tircuit, 554 So.2d 878, 881 (Miss.1989), the Mississippi Supreme Court held that “[w]e have long accepted that the courts of this state should not try an action if that would be seriously inconvenient to one or more of the parties, provided a more appropriate forum is available.” The court then discussed seven factors that are to be considered when deciding whether a case should be dismissed for forum non conveniens. The factors are identified and discussed below.

1.Relative ease of access to sources of proof

¶ 8. Poole argues that this factor favors Rankin County, Mississippi. Poole contends that all documents and almost all witnesses are located in Rankin County. Poole also contends that her injury occurred when someone at American Public’s office in Rankin County decided to deny that Poole had been issued a policy.

¶ 9. American Public and Holmes claim that there were no records relating to Poole’s policy at American Public’s office in Rankin County. Also, they assert that since the transaction occurred in Louisiana, between two Louisiana residents, then all witnesses to the transaction and all documents relating to the transaction are located in Louisiana. Thus, American Public and Holmes argue that all relevant sources of proof lie outside of Mississippi.

¶ 10. In Tircuit, all of the proof was located outside of Mississippi, and the defendant, Missouri Pacific Railroad Company, was not a Mississippi corporation, conducted no business in Mississippi, and did nothing in Mississippi but have a registered agent for service of process. Id. at 879. In Illinois Central R.R. Co. v. Samson, 799 So.2d 20, 24 (¶ 15) (Miss.2001), the court found that the defendant, Illinois Central Railroad Company, had a substantial business presence and operations in Mississippi.

¶ 11. Here, the circuit court recognized that courts in the State of Louisiana would have easier access to the evidence required in this case. The court discussed the problems that the Rankin County court would have in compelling testimony and documents from Poole’s employer and coworkers. Thus, the circuit court found that this factor favored dismissal.

2. Availability and cost of compulsory process for attendance of unwilling witnesses

¶ 12. Poole argues that the witnesses are the employees of American Public and that there are no witnesses to the transaction in Louisiana. Poole claims that there are more Mississippi witnesses than Louisiana witnesses.

¶ 13. American Public and Holmes argue that any non-party witnesses who observed the transaction live in Louisiana. As a result, Mississippi courts would not be able to obtain compulsory process to secure their testimony. American Public and Holmes contend that the availability and cost of compulsory attendance for unwilling witnesses would be burdensome.

¶ 14. The circuit court determined that the availability and cost of compulsory process for the attendance of unwilling witnesses favored dismissal.

3. Possibility of viewing the premises

¶ 15. Poole argues that she was injured when Rankin County employees of American Public decided not to pay her claims. Yet, Poole admits that a view of the place where the policy was sold would be unnecessary. Poole argues that this element favors Rankin County because the tort occurred in Rankin County.

¶ 16. American Public and Holmes argue that this element is not relevant to this litigation and does not weigh in favor of either party.

¶ 17. The circuit court’s opinion did not address this element. We interpret the omission of a discussion as the court’s finding that this element is not relevant to its consideration and weighs in favor of neither party. We discern no reason why or how the possibility of viewing the premises should be considered.

4. Unnecessary expense or trouble to the defendant not necessary to the plaintiffs own right to pursue her remedy

¶ 18. Poole claims that most of the witnesses and all of the documents are located in Mississippi. Poole also contends that American Public’s home office is located in Rankin County.

¶ 19. American Public and Holmes contend that the expense of the litigation would be unnecessarily burdensome. Although American Public conceded that a trial in Mississippi would not burden it, Holmes argued that he would suffer a severe hardship in litigating this matter in Mississippi. Holmes claims that he has no direct ties to Mississippi that would justify his being forced to defend himself in Mississippi’s courts. Because Holmes was an employee of a general insurance agent in Louisiana, he only dealt indirectly with American Public. Holmes argues that he would incur great expense and trouble that is not necessary to Poole’s right to pursue her claim.

¶20. The circuit court concluded that this factor favored dismissal, finding that it would be extremely difficult for a Mississippi circuit court to compel the State of Louisiana to produce Poole’s payroll records.

5. Administrative difficulties for the forum courts

¶21. Poole argues that since all witnesses and documents are located in Rankin County there are no administrative difficulties to hearing the case in a Mississippi court. American Public and Holmes argue that there are considerable administrative difficulties if this case were tried in Rankin County and cite two primary reasons to support this position. First, the Rankin County court would have great difficulty compelling the attendance of Louisiana witnesses and compelling the production of documents from Louisiana entities, including Poole’s employer, the State of Louisiana. Second, the trial would require a Mississippi court to interpret and apply Louisiana law.

¶ 22. The circuit court found this element to favor dismissal. Indeed, upon review of the opinion, it appears that the circuit court found this element to strongly favor dismissal. The court determined that Louisiana courts would best be suited to interpret Louisiana laws, which govern the outcome of this litigation.

6.Whether there are local interests in deciding the case at home

¶ 28. Poole argues that the local interest arises from the fact that the governance of Mississippi insurance companies is a Mississippi function and the decision to deny payment was made in Rankin County. American Public and Holmes counter with the assertion that the State of Louisiana has a greater interest in the outcome of this case since the allegedly fraudulent transaction occurred in Louisiana, between Louisiana residents, and will be based on Louisiana law. Thus, they claim that Mississippi’s interest is only secondary.

¶ 24. As to this element, the circuit court did not identify any local interests that would require this case to be decided in Rankin County. Instead, the court found that the State of Louisiana had á greater local interest in deciding this litigation.

7. The plaintiffs choice of forum should rarely be disturbed

¶25. Although Poole is a Louisiana resident, she asserts that, as the plaintiff, her choice of forum should not be disturbed. American Public and Holmes argue that Poole’s choice of forum should be given less deference since she is a nonresident of the State of Mississippi. In Metropolitan Life Ins. Co. v. Aetna Cas. & Sur. Co., 728 So.2d 573, 576(¶9) (Miss. 1999), the Mississippi Supreme Court held that, “[wjhile it is true that a plaintiffs choice of forum should be weighed heavily, less deference should be given to a nonresident plaintiff.”

¶26. Under the appropriate standard of review, this Court, on appeal must give the circuit court’s dismissal on the grounds of forum non conveniens great deference. Id. at 575. We can only reverse if we find that the lower court abused its discretion or applied an erroneous legal standard. After reviewing the circuit court’s findings and conclusions, we find that the circuit court expressed satisfactory reasons to support its conclusions, which we find to be within the court’s discretion. Therefore, we affirm the lower court’s dismissal on the grounds of forum non conveniens.

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

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


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Derrick Terrell EDWARDS, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00166-COA.
    Court of Appeals of Mississippi.
    July 27, 2004.

      William F. Vick, attorney for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Derrick Terrell Edwards was convicted of sale of cocaine and possession of cocaine. He was sentenced to serve a term of thirty years, with twelve years suspended, and ordered to pay a fine of $30,000. On appeal, Edwards asserts that the trial court erred in sentencing him to thirty years and in denying his post-trial motions. We affirm Edwards’ conviction for sale of cocaine, reverse and render Edwards’ conviction for possession of cocaine, and reverse and remand his sentence for a corrected sentencing order.

FACTS

¶2. On July 25, 2002, Derrick Terrell Edwards visited his aunt and her new husband, Eric Johnson a/k/a Dale Johnson, at their trailer. During Edwards’ presence, Eric Johnson sold a small amount of cocaine to Larry Johnson, a neighbor. Louis Pearly, a confidential informant, also visited the trailer while Edwards was present. An exchange of drugs and money occurred among Eric Johnson, Edwards, and Pearly. Both Edwards and Eric Johnson were arrested approximately thirty minutes later.

¶ 3. There was conflicting testimony presented at trial regarding Edwards’ degree of participation in the sale. Nonetheless, Edwards testified that he took forty dollars from Pearly in the front yard, walked with the money a short distance to the front door of the trailer where Eric Johnson was, gave the money to Eric Johnson for two rocks of cocaine, and then took the two rocks of cocaine to Pearly.

¶ 4. The jury found Edwards guilty of the crimes of sale of cocaine and possession of cocaine, but not guilty of conspiracy to sell cocaine. Edwards’ motion for a new trial was denied. He appeals his conviction and sentence.

ANALYSIS

I. Weight of Evidence

¶ 5. Edwards asserts that the trial court erred in overruling his motion for a new trial. He argues that the verdict was contrary to the law and against the overwhelming weight of the evidence.

¶ 6. In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Dudley v. State, 719 So.2d 180, 182(¶ 8) (Miss. 1998). For this Court to disturb the verdict on appeal, it must be so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Id.

¶ 7. Edwards argues that Eric Johnson testified that Edwards did not sell drugs for him, was not there to sell drugs, and has never sold drugs before. Edwards points out that no drugs were found on him and that the drug money was not found on him. Edwards also notes that he did not run when the police arrived. However, these facts do not support a finding that the verdict was against the overwhelming weight of the evidence.

¶ 8. Testimony at trial indicated that on July 25, 2002, Edwards went to the home of Eric Johnson, a man whom Edwards knew was a drug dealer. While there, Edwards witnessed Eric Johnson sell drugs to Larry Johnson. Also the evidence revealed that Edwards took money from Pearly and handed it to Eric Johnson in exchange for drugs. Edwards then handed the drugs to Pearly.

¶ 9. As the following colloquy reveals, Edwards’ testimony supports the jury’s verdict.

Q. What happened next after you saw Larry Johnson approach your car?
A. I sit there and looked at him, talk while I was talking on the phone. Larry Johnson then come into the trailer purchasing dope from Dale [Eric] Johnson for himself. Then I hear him tell Dale that the guy outside wanted some dope. So I don’t know what was going on. I couldn’t hear who I was talking to on the phone, so I stepped outside.
* * * *
Q. What happens next?
A. So I look at the guy, and I said, “Looks like you’ve been working hard.” He replied, “Yes, I have.” So then he asked for me to go in the house with his money because he don’t trust Larry Johnson with his money. So by that time, Larry Johnson is in the house trying to get the dope from Dale. So the guy give me the money, I walk to the door. Dale give me what I suppose to give him, and I gave it to him.
Q. And you said you took about four steps to do that?
A. Four steps.
Q. So you’re sitting here telling us that you did touch drugs that day?
A. Yes, sir.
Q. And you had drugs in your possession that day?
A. Yes, sir.
Q. How long did you have them in your possession?
A. No more than a minute.
Q. Not minute. Long enough to walk four steps?
A. Yes.
Q. And you had $40 in your hand for a second?
A. Yes. The guy gave me the money, I gave the money to Dale Johnson, the guy gave — Dale gave me the dope, and I gave it to him.

¶ 10. Although the details of Eric Johnson’s testimony conflict with Edwards’ testimony, Eric Johnson’s testimony also supports the jury’s verdict. Johnson testified that Edwards came into the trailer, said “he didn’t have enough,” and asked him if he had any dope to sell.

¶ 11. Edwards’ suggestion that the evidence presented merely shows he was a courier to the transaction is without merit. The fact that the defendant did not realize a profit on the transaction does not mean that he did not commit the crime of sale of cocaine. Boone v. State, 291 So.2d 182, 184 (Miss.1974). Mississippi Code Annotated Section 41-29-139(c)(2) “does not contemplate that the seller must realize a profit in order to be guilty of the sale of a controlled substance.” Boone, 291 So.2d at 184. The court also ruled that “the definition of ‘sale’ in the statute where ‘delivery’ is made shows a legislative intent that the act of a person making such sale and delivery constitutes a sale even if such person is acting as an agent for either the purchaser or seller.” Id. at 185. Indeed, involvement as a courier is sufficient conduct to support the conviction.

¶ 12. We find that the evidence presented supported the jury’s verdict of sale of cocaine. Accepting as true the evidence which supports the verdict, we find the circuit court did not abuse its discretion in denying a new trial. We conclude that allowing the verdict to stand does not constitute an unconscionable injustice. Therefore, this Court will not disturb the jury’s verdict on appeal.

II. Sentence

¶ 13. Edwards was indicted for the unlawful sale of cocaine and conspiracy to commit the crime of unlawful sale of cocaine. The judge instructed the jury on the crimes of unlawful sale of cocaine, the lesser-included crime of unlawful possession of cocaine, and conspiracy to commit the crime of unlawful sale of cocaine. The jury returned guilty verdicts for both the unlawful sale and possession charges, and returned a not guilty verdict for the conspiracy to sale charge.

¶ 14. Edwards contends that his sentence of thirty years, with twelve years suspended, exceeded the maximum sentence allowed by statute. Edwards relies on the premise that he was convicted of possession of cocaine and was sentenced under Mississippi Code Annotated Section 41 — 29—139(c)(1)(B) (Rev.2001). While it is true the jury returned a guilty verdict on the possession charge, the jury also found Edwards guilty of the unlawful sale of cocaine, despite the jury instructions regarding possession being a lesser-included charge. In polling the jury the judge asked, “[wjith respect to Count 1, sale of cocaine, is your verdict — and I’m asking you for your individual verdict. Did you, in fact, find the defendant guilty of unlawful sale of cocaine?” Each juror responded affirmatively.

¶ 15. Possession of a controlled substance, being a lesser-included crime of sale of a controlled substance, merges into the sale charge. See Laughter v. State, 241 So.2d 641, 644 (Miss.1970) (holding that there can only be one conviction for either the sale or possession of marijuana). Therefore, one cannot be convicted of both charges. Id. Here, the jury returned guilty verdicts on both the sale of cocaine charge and the possession charge. Accordingly, we reverse and render on Edwards’ conviction for possession of cocaine.

¶ 16. Due to this confusion, we cannot say with certainty that the judge sentenced Edwards solely on the sale of cocaine charge. Edwards was found guilty of the unlawful sale of cocaine and sentenced to thirty years with twelve years suspended. Mississippi Code Annotated Section 41 — 29—139(b)(1) provides imprisonment of up to thirty years and up to a one million dollar fine for the sale of cocaine. Edwards’ sentence of thirty years with twelve years suspended and fine of thirty thousand -dollars was within the statutory guidelines. However, based on the record it is unclear whether the judge sentenced Edwards solely on the sale of cocaine conviction or if the judge also considered the possession of cocaine conviction. Although the judge awarded a single sentence of thirty years, the jury returned verdicts for both possession and sale. The sentencing order also listed both possession and sale. Since a defendant cannot be found guilty of both possession and sale, the sentencing order should have just reflected the jury’s verdict on the sale charge. If the judge considered the possession conviction in determining Edwards’ sentence, this was also improper.

¶ 17. In order to ensure that Edwards was sentenced only on the sale conviction, we reverse Edwards’ sentence and remand for a corrected sentencing order consistent with this opinion.

¶ 18. It is worth noting that Edwards asserts two other challenges to his sentence. We find both of these challenges to be without merit.

¶ 19. First, Edwards argues that his sentence was disproportionate to the sentence Eric Johnson received. Edwards bases this argument on Erie Johnson’s testimony that he thought he received twelve years on his possession with intent to distribute charge and four years on his possession of cocaine charge.

¶ 20. Although Johnson’s sentencing order was not made a part of the record, the indictment and testimony reveals that Johnson pled guilty to the crimes charged against him. In King v. State, 857 So.2d 702, 732 (¶ 108) (Miss.2003), our supreme court ruled that pleading guilty is reason to support receiving a lesser sentence.

¶ 21. We, as an appellate court, must afford sentencing courts with “substantial deference” in determining sentences. Franklin v. State, 773 So.2d 970, 972(¶ 6) (Miss.Ct.App.2000). Given the amount of deference due to the trial court’s determination of sentences and the fact that Eric Johnson pled guilty, we find that Edward’s sentence was not disproportionate to the sentence Eric Johnson received. This assignment of error is without merit.

¶ 22. Second, Edwards claims that the fine imposed on him was unjustified and that it “places an undue hardship and compounds an already difficult situation.” Although the fíne very well may be burdensome on Edwards, he fails to cite any legal authority that suggests this is grounds to reverse his sentence.

¶ 23. As discussed above, Edwards’ fine of thirty thousand dollars is well within the possible one million dollar fine allowed under Mississippi Code Annotated Section 41 — 29—139(b)(1) for the sale of cocaine. Our courts have consistently held that “[sentencing is within the complete discretion of the trial court and is not subject to appellate review if it is within the limits prescribed by statute.” Nichols v. State, 826 So.2d 1288, 1290 (¶ 10) (Miss.2002). Therefore, we find this claim to be without merit.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY OF CONVICTION OF UNLAWFUL SALE OF COCAINE IS AFFIRMED, AND THE CONVICTION OF UNLAWFUL POSSESSION OF COCAINE IS REVERSED AND RENDERED. THE THIRTY YEAR SENTENCE IS REVERSED AND REMANDED FOR A CORRECTED SENTENCING ORDER CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.

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


author: IRVING, J.,

text:
    Jeffrey Leon ENLOW, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-KA-00623-COA.
    Court of Appeals of Mississippi.
    July 27, 2004.

      Frank A. Russell, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Jeffrey Leon Enlow was convicted in the Circuit Court of Monroe County of simple assault on a police officer and sentenced to a term of five years in the custody of the Mississippi Department of Corrections. Aggrieved by the judgment below, Enlow has appealed and presents eight issues: (1) whether he was deprived of his right to effective assistance of counsel, due process and a right to a fair trial where adequate instructions were lacking, (2) whether the trial court erred in overruling the appellant’s motion to dismiss the charges or in the alternative for a directed verdict at the close of the State’s case-in-chief, (3) whether the trial court erred in denying the appellant’s motion for a directed verdict at the close of appellant’s case, (4) whether the evidence was sufficient as a matter of law, (5) whether he received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments of the United States Constitution, (6) whether the court erred in allowing the State to make prejudicial reference to prior bad acts in violation of Rule 404 of the Mississippi Rules of Evidence, (7) whether the court’s failure to adequately poll the jury requires reversal, and (8) whether the cumulative effect of the aforementioned errors greatly prejudiced Enlow and rendered a fair trial impossible.

¶ 2. Ascertaining no error, we affirm.

FACTS

¶ 3. In the early morning hours of March 24, 2001, a disturbance transpired at Uncle Joe’s Food Mart in Nettleton, Monroe County, Mississippi. A truck suddenly sped through the store’s parking lot and abruptly stopped at the store. Within the truck were two women, both of whom seemed agitated and distressed. The women beckoned for A.D. Heard, a uniformed Nettleton police officer who was inside of Uncle Joe’s, to come outside. The women quickly explained to Heard that someone was pursuing them and possibly trying to kill them. Heard started taking their complaint. Shortly thereafter, Jeffrey Enlow appeared from around the corner of the store. At this point, the facts are largely in dispute as to the events that transpired.

A.D. Heard’s version

¶ 4. According to Heard, Enlow suddenly emerged and appeared to be very upset. He testified that Enlow continually made threats to the women. Heard explained that he repeatedly advised Enlow to stay back from the women while he was taking their statements but that Enlow persisted in approaching the women. Heard testified that he eventually put his hand on Enlow’s chest to hold him back and warned Enlow that if he continued to disobey his orders that he would have to arrest him. According to Heard, Enlow retorted that “no n-r” was going to arrest him. Heard explained that he then turned around to finish taking the women’s statements when he was suddenly struck in the back of the head by Enlow. Heard testified that a scuffle ensued between him and Enlow and that soon after, Billy Willis and James Neal, two bystanders, helped him restrain and arrest Enlow.

Enloiv’s version

¶ 5. Enlow testified that earlier that evening he and his fiancée, Debbie Coggin Smith, were at Smith’s house eating supper. He explained that a black pickup truck kept circling the house or going up and down the road. Enlow further testified that someone was coming to the house and ringing the doorbell, knocking on the door, or knocking on the outside wall of the house. He explained that when he looked out of the door, the culprit was gone and that only the black pickup truck with tinted windows was there.

■ ¶ 6. Enlow testified that Smith decided to find out who was in the truck and went to the Nettleton Police Department for help. He testified that meanwhile he called his friend Harold Neal, a distant cousin of Smith, to assist in the search of the pickup truck. Enlow further testified that Smith was unable to locate the police but informed him that Neal had located the truck at Uncle Joe’s. He explained that he then proceeded to the store.

¶ 7. Enlow testified that, when he arrived at Uncle Joe’s, he saw Officer Heard talking to two women standing next to the truck. He explained that, as he approached the officer and women, he repeatedly asked the women what they were doing. He testified that Officer Heard then turned around and told him that he was taking a statement from the women and to stay back. According to Enlow, he repeated his inquiry to the women, and Officer Heard repeated his warning to En-low to stay back. At that point, Neal told him to come on. He explained that when he turned around to walk toward Neal, Officer Heard hit him with such force as to “idle” him. Enlow testified that he did not recall a whole lot after Officer Heard’s attack until the time he was arrested.

¶ 8. Enlow was indicted for simple assault on a police officer and convicted after a two-day trial. Following the filing and denial of post-trial motions, this appeal ensued.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Ineffective Assistance of Counsel

¶ 9. We first note that issues one and five deal with ineffective assistance of counsel. We further note that issue six is substantially incorporated in the ineffective assistance of counsel claim. Therefore, we shall address these issues jointly.

¶ 10. In order to prevail on a claim of ineffective assistance of counsel, a defendant must prove that his attorney’s performance was deficient, and that the deficiency was so substantial as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Davis v. State, 849 So.2d 1252 (Miss.2003), our supreme court further articulated:

This Court looks at the totality of the circumstances to determine whether counsel’s efforts were both deficient and prejudicial. “Judicial scrutiny of counsel’s performance [is] highly deferential.” There is a strong but rebuttable presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Only where it is reasonably probable that but for the attorney’s errors, the outcome of the trial would have been different, will we find that counsel’s performance was deficient.

Id. at 1256-57(¶ 18) (citations omitted).

¶ 11. In his assignment of errors, En-low gives a laundry list of claims against his counsel for ineffective assistance:

(1) His trial counsel’s handling of the Batson issue was ineffective. Counsel failed to properly preserve the issue and argue race-neutral grounds for peremptory strikes.
(2) His trial counsel’s failure to raise issues regarding prejudicial statements (n-r) and other bad acts by utilizing pre-trial motions was ineffective.
(3) His trial counsel failed to make argument regarding instructions offered and failed to include a lesser included instruction of resisting arrest and failed to request an instruction defining bodily injury.
(4) His trial counsel failed to object to numerous “for cause” challenges of the State permitted by the court.
(5) His trial counsel failed to object to the testimony of prior bad acts timely and effectively.
(6) His trial counsel failed to timely disclose documentary evidence (the map of Ms. Smith) that was offered and refused by the court.
(7) His trial counsel failed to object to clearly improper redirect where the alleged victim first offered testimony that Enlow attempted to take his weapon.
(8) His trial counsel made a motion for a directed verdict for acquittal and the trial court took it under advisement, thereafter, he failed to renew his motion or seek a ruling from the court before the close of trial.

¶ 12. While Enlow makes eight claims of ineffective assistance of counsel, he wholly fails to demonstrate how these claims, with the exception of numbers three and five, prejudiced his case to the point where the outcome would have been different. Therefore, we examine only the third and fifth claims of ineffective assistance of counsel made by Enlow.

A Jury instructions

¶ 13. Enlow first argues that the lesser-included offense instruction of resisting arrest should have been included in the instructions to the jury. He further asserts that the court’s instructions to the jury regarding simple assault upon an law enforcement officer failed to define or mention “bodily injury.” Enlow points out that his attorney’s failure to request these instructions is indicative of ineffective assistance of counsel and a violation of due process.

Our law is well-settled that jury instructions are not given unless there is an evidentiary basis in the record for such. This Court has also held that instructions must be warranted by the evidence and should not be indiscriminately granted. To warrant the lesser-included offense instruction, a defendant must point to some evidence in the record from which a jury could reasonably find him not guilty of the crime with which he was charged and at the same time find him guilty of a lesser-included offense.

Goodnite v. State, 799 So.2d 64, 69(¶ 24) (Miss.2001).

¶ 14. The evidence demonstrates that the lesser-included offense instruction of resisting arrest was not warranted in this case as there was no evidentiary basis to support that instruction. There was no testimony from any witnesses that Enlow struck Officer Heard in the course of the officer arresting Enlow. The only mention by these witnesses of an arrest by Officer Heard came after Enlow delivered his blow to the officer. Moreover, the defense in this case was that Enlow was the victim of an assault by Officer Heard without Enlow having retaliated against the officer. None of the witnesses for the defense testified that Enlow delivered a blow to the officer during the course of the arrest. Therefore, no lesser-included instruction of resisting arrest was warranted and counsel for Enlow was not ineffective in his failure to ask for the instruction.

¶ 15. Moreover, we also find no merit to Enlow’s contention that his counsel was ineffective for failing to request an instruction concerning bodily injury. While Mississippi Code Annotated section 97-3-7 (Supp.2003) does not define bodily injury, our supreme court has found that the statute is not constitutionally vague with its inclusion of bodily injury and that a person of ordinary intelligence would, by reading the statute, receive fair notice of that which is required or forbidden by that term. See Reining v. State, 606 So.2d 1098, 1103 (Miss.1992). Further, we point out that defense instruction D-17, which was granted and later recited to the jury, includes the term “body injury” in its discussion of the State’s burden of proof. We therefore find no merit in Enlow’s contention that counsel was ineffective for not requesting a further instruction concerning bodily injury.

B. Admission of bad acts evidence

¶ 16. Enlow argues that the circuit court erred in allowing the State to make prejudicial reference to prior bad acts in violation of rule 404 of the Mississippi Rules of Evidence and that his trial counsel was ineffective for failing to object.

¶ 17. The record demonstrates that the State asked Enlow several questions about whether he was involved with or had ever used narcotics. Counsel for Enlow objected and asserted that the State should have to show convictions to make such inquiries of Enlow. The circuit judge explained that Enlow was on cross-examination, decided that she would allow the questioning, and asked the State to move on to its other questions. Later in the trial, in response to Enlow’s allegations that the police had it in for him, the State subsequently asked Enlow why the police would have anything against him. Counsel for Enlow objected and suggested that the State was trying to elicit evidence of a subsequent charge of simple assault on a law enforcement officer. A bench conference was conducted with both counsel outside the presence of the jury. During the conference, the State explained that its questions were in response to testimony given earlier by En-low that he was not the type of person that would attack a police officer. After hearing arguments from both sides, the judge advised the State not to pursue that line of questioning for fear that it might elicit prejudicial testimony. That line of questioning was not revisited by the State as to Enlow. However, the State later questioned defense witness, Debbie Smith, as to why the police might not like Enlow. This questioning elicited a response by Smith that the police had a vendetta against Enlow because he might be a possible suspect in the death of a former Shannon, Mississippi chief of police. No objection was made by Enlow’s counsel.

¶ 18. Our review of the record indicates that at least some of the questioning about which Enlow complains was essentially in response to the claim made by Enlow that he was suddenly struck by Officer Heard for no apparent reason. With Enlow having made this assertion, it was certainly reasonable to expect that the State would attempt to prove that law enforcement officials, and Officer Heard in particular, had no reason to suddenly attack Enlow without provocation. One way to accomplish this task would be to ask Enlow and his witnesses if they knew of any reason why the police might not like Enlow, assuming the State was certain that the police harbored no ill will toward Enlow. It may be, as Enlow contends, that the State knew it would get the answer it got from Smith, but that is pure speculation. Nothing in the record indicates that the State was engaged in some kind of nefarious undertaking to elicit prejudicial testimony against Enlow. In the absence of such proof, we decline to find any improper motive on the part of the State.

¶ 19. Moreover, we fail to see the bad-act evidence in Smith’s testimony. While she testified that the police might have a vendetta against Enlow because he might be a suspect in the murder of a police officer, that is not the same thing as saying that Enlow was in fact a suspect or that Enlow had committed the act.

¶ 20. The State’s questions regarding Enlow’s use of or involvement with drugs is a different matter. We can discern no reason why this line of questioning should have been pursued. At the same time we do not believe, given the strong case against Enlow, that the questions asked him by the State regarding his use of or involvement with drugs caused him to be denied a fair trial. Nor do we believe that the results would have been different in the absence of the questions. After all, Enlow denied categorically the questions asked, and the State did not offer any evidence rebutting Enlow denials. Consequently, we find no merit in this claimed error.

3. Sufficiency of the Evidence

¶21. In issues two, three, and four, Enlow asserts that the trial court erred because it failed to grant his motion to dismiss and for a directed verdict since the jury’s verdict was not supported by sufficient evidence. Because issues two, three, and four challenge the sufficiency of the evidence, “[an appellate court] properly reviews the ruling on the last occasion the challenge was made in the trial court. This occurred when the Circuit Court overruled [the] motion for JNOV.” Stack v. State, 860 So.2d 687, 699(¶ 27) (Miss.2003) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)).

¶ 22. The standard of review for denials of motions for directed verdict, judgment notwithstanding the verdict and a request for a peremptory instruction is the same. Shelton v. State, 853 So.2d 1171, 1183(¶ 48) (Miss.2003). A directed verdict, judgment notwithstanding a verdict and a request for peremptory instruction all challenge the legal sufficiency of the evidence presented at trial. Id. “The credible evidence consistent with [the defendant’s] guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence ... We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.” Stack, 860 So.2d at 699(¶ 27) (citations omitted).

¶ 23. The elements of simple assault on a law enforcement officer are: (1) an attempt to cause or purposely, knowingly or recklessly cause bodily injury; (2) to a law enforcement officer; and (3) who is acting in the scope of his duty, office, or employment. Miss.Code Ann. § 97-3-7(1) (Supp. 2003).

¶ 24. Enlow does not argue that the State failed to prove the elements of the crime; rather, he points out that there was no medical proof of Officer Heard’s injury. However, we do not find it necessary for the State to present medical proof of Heard’s injury where the State is only required to prove beyond a reasonable doubt that Enlow attempted to cause or purposely, knowingly or recklessly caused bodily injury to Officer Heard.

¶25. Moreover, the evidence substantially supports Enlow’s guilt. Enlow does not dispute that Officer Heard was a law enforcement officer who was acting in the scope of his duty on the night of the incident. Officer Heard testified that En-low struck him behind the head with En-low’s fist, while his back was turned to Enlow. Officer Heard testified that he sustained a cut from Enlow’s blow. Shaneka Shumpert, an employee of Uncle Joe’s at the time of the incident, testified that she saw Enlow hit Officer Heard toward the back of the neck with his fist or hand after the officer ordered Enlow to stand back from the women Enlow was pursuing. James Neal and Billy Willis, both prosecution witnesses who witnessed the incident, testified that Enlow hit Officer Heard in the back of the head with his fist after the officer attempted to hold Enlow back from the women. Both testified further that Enlow’s attack was unprovoked.

¶ 26. Enlow, however, testified that he did not strike Officer Heard, but that instead Officer Heard hit him after he had turned around to leave the scene. Debbie Smith testified that Enlow did not strike Officer Heard. She further explained that the officer stuck Enlow with his ticket book and brought Enlow to his knees before he was arrested. Harold Neal, a defense witness, testified that Enlow did not hit the officer and that Officer Heard tapped Enlow with something in his hand. He later explained that he could not say that the witnesses for the State were liars, that their testimony as to Enlow hitting Officer Heard was possible, but stated that he did not see the events that way.

¶ 27. When evidence is in conflict, the jury is the sole judge of both the credibility of witnesses and the weight of their testimony. Weathersby Chevrolet Co. v. Redd Pest Control Co., 778 So.2d 130, 133(1110) (Miss.2001). The jury found that the evidence supported Enlow’s guilt of simple assault of a police officer. We find no basis to disturb the jury’s finding. There was much evidence to support the jury’s verdict.

¶ 28. Enlow also points out that Officer Heard gave conflicting testimony concerning where he was struck by Enlow and that Heard added the testimony that En-low attempted to gain access to Heard’s gun. We do not find this to be consequential to the jury’s verdict as, “[i]t is the jury’s province to resolve such conflicts, and the jury is free to accept the testimony of some witnesses and reject that of others, in whole or in part.” Montana v. State, 822 So.2d 954, 966(¶ 51) (Miss.2002).

4-. Polling of the Jury

¶ 29. Enlow argues that the circuit court failed to adequately poll the jury. However, a closer reading of his argument indicates that his objection is really based upon the way the court reporter recorded the results of the jury polling when she noted in the record: “(All jurors answered verbally in the affirmative.)” According to Enlow, this method of recording by the court reporter was not sufficient to satisfy the rules and consequently causes the results from the polling of the jury to be clouded.

¶ 30. Enlow requested a poll of the jury, and the circuit court readily granted his request. The court instructed the jurors to stand and for each of them to individually indicate whether the verdict as read was his or her verdict. The court reporter then recorded in the transcript as follows: “(All jurors answered verbally in the affirmative.)” The court inquired of Enlow whether he was satisfied with the polling of the jury, and he answered in the affirmative. Thereafter, the court dismissed the jury.

¶ 31. Rule 3.10 of the Uniform Circuit and County Court Rules states, in part:

The court shall inquire if either party desires to poll the jury, or the court may on its own motion poll the jury ... If the court, on its own motion, or on motion of either party, polls the jury, each juror shall be asked by the court if the verdict rendered is that juror’s verdict. In a criminal case where the verdict is unanimous and in a civil case where the required number of jurors have voted in the affirmative for the verdict, the court shall order the verdict filed and entered of record and discharge the jury unless a bifurcated hearing is necessary.

Rule 3.10 does not address the method of recording the results of jury polling but states only the procedure for accomplishing that task. Here, the circuit court adhered to that procedure. Moreover, we note that Enlow failed to object to the method of polling, and in fact expressed his satisfaction with its results. We find no merit in this issue.

5. Cumulative Effect of Errors

¶ 32. Finally, Enlow argues that the cumulative effect of errors by the circuit court demonstrate that he was not afforded a fair trial. As can be ascertained from our discussion of the issues addressed earlier in this opinion, this issue has no merit inasmuch as we have found no merit in any of the issues previously discussed.

¶ 33. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY OF CONVICTION OF SIMPLE ASSAULT ON A POLICE OFFICER AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $1,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: WOODALL, Justice. WOODALL, Justice.

text:
    SOUTHERN PINE ELECTRIC COOPERATIVE v. Christopher BURCH.
    1020066.
    Supreme Court of Alabama.
    March 28, 2003.
    Opinion on Return from Remand Oct. 24, 2003.

      W. Austin Mulherin III and Mary Margaret Bailey of Frazer, Greene, Upchurch & Baker, L.L.C., Mobile, for appellant.
    Max Cassady of Cassady & Cassady, P.C., Evergreen, for appellee.
   WOODALL, Justice.

Christopher Burch sued Southern Pine Electric Cooperative alleging wrongful termination of his electric service. A jury awarded Burch $20,000 in compensatory damages and $75,000 in punitive damages. Southern Pine Electric Cooperative filed a motion for a remittitur, which the trial court orally denied, without stating its reasons for doing so. Southern Pine Electric Cooperative appealed.

The trial court erred in denying Southern Pine Electric Cooperative’s motion for a remittitur without providing a written statement of the reasons for the denial. We remand this case for the trial court to enter an order in compliance with Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986), stating its reasons supporting the denial of the motion. See Love v. Johnson, 775 So.2d 127 (Ala.2000); see also Spencer v. Lawson, 815 So.2d 502 (Ala.2001); Guaranty Pest Control, Inc. v. Bush, 851 So.2d 548 (Ala.Civ.App.2002). The trial court is instructed to file a return to this Court within 56 days of the release of this opinion, after which Southern Pine Electric Cooperative will have 14 days to file a supplemental brief, if it chooses to do so. Burch will then have seven days to respond, and Southern Pine Electric Cooperative may file a reply brief within seven days of Burch’s response.

REMANDED WITH DIRECTIONS.

MOORE, C.J., and HOUSTON, LYONS, and JOHNSTONE, JJ., concur.

On Return From Remand

WOODALL, Justice.

On March 28, 2003, we remanded this case for the trial court to enter an order in compliance with Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986), stating its reasons for denying the motion of the appellant, Southern Pine Electric Cooperative (“Southern Pine”), for a remitti-tur of a compensatory-damages award of $20,000 and a punitive-damages award of $75,000 in favor of Christopher Burch, without providing a statement of its reasons for the denial. Southern Pine Elec. Coop. v. Burch, 878 So.2d 1120, 1122 (Ala. 2003). Following a hearing on remand, the trial court, in a written order, again denied Southern Pine’s motion. We now address the merits of Southern Pine’s appeal.

Southern Pine is a “[cjooperative, nonprofit membership corporation! ],” as defined by Ala.Code 1975, § 37-6-2, “organized under [Ala.Code 1975, §§ 37-6-1 to -49,] for the purpose of supplying electric energy and promoting and extending the use thereof.” This action arose out of an attempt by Southern Pine to collect payment for electrical service it provided to Tracy Burch, who, at some time, was married to Brian Burch, the cousin of the plaintiff, Christopher Burch. That service was provided to a mobile home located on County Road 27 in Castleberry. Southern Pine terminated electrical service at the site in April or May 2001, after it was unable to collect $677.31 on Tracy Burch’s past-due account.

On May 7, 2001, Christopher Burch submitted an “Application for Membership and Electrical Service,” seeking to reestablish electrical service at the mobile home. Southern Pine approved the application and dispatched district supervisor James Brown and service technician Chet Dolihite to the site to reestablish electrical service. Brown and Dolihite completed their assignment and were leaving the premises, when, they say, they met an automobile, with a male driver and a blonde female passenger, driving toward the mobile home. According to Brown and Dolihite, the vehicle was a white Mercury automobile that had customarily been parked at the mobile home while the account for electrical service to the mobile home was in Tracy Burch’s name.

Subsequently, Brown reviewed the account file of Christopher Burch, which contained a copy of Christopher’s driver’s license. From the photograph on the copy, Brown concluded that Christopher Burch was the driver of the white Mercury. He further concluded that he had seen Christopher at the mobile home on an earlier occasion, while the account was in Tracy’s name, and that, on that occasion, Christopher had identified himself to Brown as Tracy Burch. Brown also believed that the blonde woman in the Mercury was someone he had seen in and around the mobile home while the account was in Tracy Burch’s name.

Southern Pine concluded that Christopher’s membership application was merely an attempt to circumvent the past-due account, for which service to the mobile home had been discontinued. It concluded, in other words, that “Southern Pine was dealing with the not-uncommon problem of members attempting to avoid indebtedness for electrical service by simply changing the name on the account from one resident of the household to another.” Brief of Southern Pine, at 7. Therefore, the first electrical bill mailed to Christopher was for $737.39. Of that amount, $60.08 was designated as “current bill,” while $677.31, the amount due on Tracy Burch’s delinquent account, was designated as “previous balance.” On June 15, 2001, Christopher paid the “current bill” amount of $60.08. On June 27, 2001, Southern Pine discontinued electrical service to Christopher for failure to pay the alleged delinquency. The termination occurred while Burch was away from home, resulting in the spoilage of refrigerated perishables worth approximately $100.

On July 13, 2001, Christopher sued Southern Pine, alleging (1) breach of contract, (2) “wrongful termination of electrical power,” and (3) “wanton or willful termination of electrical service.” Electricity was restored to the mobile home on July 31, 2001, pursuant to a court order; Southern Pine offered no opposition. Subsequently, Southern Pine counterclaimed against Christopher for the delinquent amount on Tracy’s account.

After the complaint was filed, Southern Pine’s personnel began surveilling Christopher’s premises from County Road 27, approximately 200 feet from the mobile home. While doing so, James Brown took a number of photographs of a blonde woman on the premises.

A jury trial began on June 24, 2002. At the close of all the evidence, Southern Pine moved for a judgment as a matter of law (“JML”) on all the claims. The trial court granted the motion only as to any claims sounding in negligence. It also granted Burch’s motion for a JML on the counterclaim. The case was submitted to the jury on claims of breach of contract and wantonness. The jury awarded Burch $20,000 in compensatory damages and $75,000 in punitive damages.

Southern Pine filed a posttrial motion for JML, as well as a motion for a remitti-tur or, in the alternative, a new trial. Those motions were denied, and Southern Pine appealed. On appeal, Southern Pine contends (1) that the trial court erred in granting Burch’s motion for a JML on the counterclaim; (2) that evidence of mental distress, which formed the primary basis for the compensatory-damages award, was insufficient to support the award; and (3) that the punitive-damages award was excessive.

I. Counterclaim

The theory of Southern Pine’s counterclaim against Christopher was (1) that Tracy Burch continued to live at the mobile home after electrical service was reestablished in Christopher’s name on May 7, 2001, or (2) that Christopher had lived at the mobile home before May 7, 2001. In either case, Southern Pine argued, it was entitled to terminate Christopher’s electrical service and to collect from Christopher the amount Tracy owed Southern Pine. As support for its theory, Southern Pine relied on Ala.Code 1975, § 37-6-30(b), which provides:

“(b) Any rural electric cooperative or gas district may terminate or decline service at all locations if an applicant or customer, or a member of the applicant’s or customer’s household, is indebted to the rural electric cooperative or gas district for services at the present location or a former location of the applicant or customer. This section shall not apply if a person was not a member of the household of the applicant or customer, or if a person was a minor when the indebtedness was incurred. In the event that such indebtedness for service previously rendered is in dispute, the applicant shall be served or the customer’s service shall be continued upon complying with the normal deposit requirements of the rural electric cooperative or gas district and, in addition thereto, by making a special deposit in an amount equal to the net balance in dispute. Upon settlement of the disputed account, the balance, if any, due the applicant 'or customer or member of applicant’s or customer’s household shall be promptly repaid.”

(Emphasis added.)

Southern Pine argues:

“Rather than [entering a judgment as a matter of law,] the trial judge should have left it for the jury to decide whether Southern Pine had proved that it had sufficient reason to believe either that Plaintiff had been a resident prior to his application or that Tracy Burch had continued to be a resident after his application. The trial court’s dismissal of the counterclaim was unduly prejudicial to Southern Pine as it implied to the jury that the trial judge had sanctioned Plaintiff’s argument [that neither of those scenarios was true], leaving to the jury only the determination of damages.”

Brief of Southern Pine, at 48 (emphasis added). We disagree with Southern Pine’s argument.

The success of the counterclaim did not depend on whether Southern Pine had “reason to believe ” that Christopher and Tracy were members of the same household, that is, that they were attempting to avoid Tracy’s indebtedness to Southern Pine by simply changing the name on the account. The success of the counterclaim depends on whether § 37-6-30(b) authorizes an action against one household member for the debt of another household member. The trial court raised this issue sua sponte during Burch’s case-in-chief.

During Southern Pine’s cross-examination of Garrey Cave, Southern Pine’s office manager, counsel for Southern Pine attempted to elicit testimony as to the source of Southern Pine’s alleged right to “transfer the indebtedness” of Tracy Burch to Christopher Burch. The following colloquy occurred:

“Q. [By counsel for Southern Pine:] Now, will you please tell the jury why Southern Pine transferred that $677 from Tracy Burch’s account to Christopher Burch’s account?
“A. [By Cave:] On the recommendation of Mr. [James] Brown, the service manager, or the district manager, of the Evergreen office. He told us that we needed to transfer it because the ■ same people were living in the account as were living in the account before it was put in Christopher’s name.
“Q. In other words, that Tracy Burch had been living in there prior to May 7 and was continuing to live in there after May 7?
“A. Right.
“Q. And the same thing with Christopher Burch?
“A. That’s correct.
“Q. And under either scenario, could Southern Pine transfer the indebtedness?
“[By Burch’s counsel:] Object to the — that’s—
“[The Court:] Sustained.
“Q. [Southern Pine’s counsel:] I think you’ve already explained to us why, though, you transferred it.
“A. Right.
“Q. Will you please tell the jury what right, if any, Southern Pine had to transfer the indebtedness from the account of Tracy Burch to the account of Christopher Burch?
“[Burch’s counsel:] Same objection.
“[By Southern Pine’s counsel:] ‘What right’? I mean, certainly they must have thought they had a right to do it, and I just want him to be able to tell the jury why they felt like they had this right to do it.
“[The Court:] I would like — this really brings up a point I would like to discuss with counsel outside the presence of the jury.”

Outside the presence of the jury, the trial judge suggested that he would grant a motion for a JML on the counterclaim, based on the absence of statutory authority for the counterclaim. In that connection, the following colloquy occurred:

“[The Court:] The problem with this line of questioning] is: I don’t know why you say you can transfer any debt at all. Where is that? Where is the law on that? Show me where it says you can transfer [the debt],
“[Southern Pine’s counsel:] That we can terminate — •
“[The Court:] No. No. We are not talking about termination, because we have not been talking about termination lately. We’ve been talking about transferring a debt. Show me where it says you can transfer a debt.
“[Southern Pine’s counsel:] It does not say specifically, ‘transfer.’ It just says that they can terminate the power—
“[The Court:] Exactly.
“... If I’m sitting here, and I’m living with my roommate ... at a college residence, and Southern Pine happens to furnish me power .... and my roommate has an electric bill in his name, and he doesn’t pay it, can you sue me for that electric bill and collect? I’m living there. I’m using electricity the whole time.
“[Southern Pine’s counsel:] Not, Your Honor, until, or unless, you go out and put an account in your own name, then we can.
“[The Court:] You can sue me?
“[Southern Pine’s counsel:] That’s our position.
“[The Court:] Where? Where do you find that in the law?
“[Southern Pine’s counsel:] Well, it says that — well, we can terminate your—
“[The Court:] Exactly. You can decide not to furnish me electricity, but it does not ever say anywhere in that [statute] — and I was just wondering where this is coming from — that you can sue me for a debt that somebody else owes.
“Unless I have agreed to pay [for] that electricity, you can’t sue me. I may have used it, but ... you could sue anybody that went into somebody’s house and drank a little bit of water—
“What I’m saying is: I’m about ready to — unless you show me some good law that says I shouldn’t — dismiss your counterclaim, because you haven’t got a leg to stand on. And when you’re talking about all this transferring a debt around, I don’t think you can do that, because I don’t see any authority to do it.
“... [T]he law doesn’t give you the right to sue somebody for a debt unless they agree to pay it. And [Christopher] never agreed to pay it, so that’s why I sustained the objection. [Christopher Burch’s counsel] may have had a different idea for his objection, but I wanted to make it clear why I was sustaining the objection.
“[Burch’s counsel:] I just thought it was an ultimate issue.
“[The Court:] Well, I just don’t think there is an ultimate issue on that issue, because I don’t think it exists. I don’t think the statute gives him the right to transfer the debt around. It gives him the right to terminate, and it gives him a right to demand a deposit if there’s a dispute about how much is owed. But I don’t think it gives [Southern Pine] a right to sue the new guy for that debt.
“It doesn’t give [Southern Pine] the right to sue [Christopher Burch] to get the $677. You have the right to demand $677 from him before you provide service if you can prove that he was a member of the household that skipped out on the bill.
“[Southern Pine’s counsel:] But how do we get our money?
“[The Court:] You find Tracy Burch, and you sue her.”

(Emphasis added.)

We agree with the trial court’s interpretation of § 37 — 6—30(b). By its plain meaning, the statute merely authorizes a “rural electrical cooperative” to “terminate or decline service” to an “applicant or customer,” if such person or “a member of the applicant’s or customer’s household, is indebted to the rural electrical cooperative.” (Emphasis added.) Nothing in the statute authorizes a rural electrical cooperative to sue one member of a household for a debt incurred by another member of the household. That is precisely the purpose of Southern Pine’s counterclaim. Because there was no legal basis for the counterclaim, the trial court did not err in entering a JML on the counterclaim.

II. Damages for Mental Distress

Southern Pine contends that it is entitled to a substantial remittitur of the $20,000 compensatory-damages award. Burch proved only $100 in economic loss; therefore, Southern Pine insists, the balance of the award, that is, $19,900, represented damages for mental distress. It argues that Burch “failed to testify in significant detail about the nature, severity, or duration of his alleged [mental distress].” Brief of Southern Pine, at 16. We address these contentions in the context of a claim alleging the wrongful termination of utilities and the standard of review of a damages award for mental distress.

A. Basis of the Claim

“A public utility[] is obligated to serve all members of the public that it holds itself out to serve, fairly and without discrimination.” Miller v. Hillview Water Works Project, Inc., 273 Ala. 267, 271, 139 So.2d 337, 339 (1962). “This duty ... exists independent of [a] statute regulating the manner in which such utilities do business .... The duty is imposed because [public utilities] are organized to do a business affected with a public interest and are held out to the public as being willing to serve all of its members.” 273 Ala. at 271, 139 So.2d at 340. A breach of such public duty “is a tort, wherein the measure of damages is governed by the rules of tort actions.” Alabama Water Serv. Co. v. Wakefield, 231 Ala. 112, 115, 163 So. 626, 628 (1935). Thus, in actions alleging the wrongful termination of utility services, damages for mental distress are recoverable, 231 Ala. at 116, 163 So. at 628, “and, when the circumstances justify it, [so are] punitive damages.” Sims v. Alabama Water Co., 205 Ala. 378, 380, 87 So. 688, 690 (1920); Birmingham Waterworks Co. v. Keiley, 2 Ala.App. 629, 56 So. 838 (1911).

B. Standard of Review

“There is no fixed standard for determining the amount of compensatory damages a jury may award for mental anguish. The amount of the damages award is left to the jury’s sound discretion, subject only to review by the court for a clear abuse of that discretion.” Delchamps, Inc. v. Bryant, 738 So.2d 824, 837 (Ala.1999). However, where the plaintiff suffers no physical injury and “offer[s] little or no direct evidence concerning the mental suffering sustained as a result of the defendant’s wrongdoing,” we give stricter scrutiny to an award for mental distress. National Ins. Ass’n v. Sockwell, 829 So.2d 111, 133 (Ala.2002). See Kmart Corp. v. Kyles, 723 So.2d 572 (Ala.1998). The plaintiffs testimony is direct evidence of mental anguish. 723 So.2d at 578. Thus, where the plaintiff has suffered no physical injury, we “address the strength of the presumption that a jury’s verdict is correct,” Bryant, 738 So.2d at 837, in the context of the plaintiffs testimony regarding the “nature, severity, and duration of the mental anguish.” Alabama Power Co. v. Murray, 751 So.2d 494, 501 (Ala.1999). Cf. Orkin Exterminating Co. v. Jeter, 832 So.2d 25 (Ala.2001) (remitting $400,000 compensatory-damages award to $300,000); Oliver v. Towns, 770 So.2d 1059 (Ala.2000) ($500,000 compensatory-damages award remitted to $75,000); Alabama Power Co. v. Murray, supra ($150,000 compensatory-damages award reduced to $84,000); Bryant, supra (reducing $400,000 compensatory-damages award to $100,000); Kyles, supra ($100,000 compensatory-damages award remitted to $15,000).

Nevertheless, in Oliver v. Towns, supra, we held that an award of $75,000 was warranted, where the plaintiff, “who had been defrauded by her attorney, testified only that she suffered ‘a lot of [mental anguish]’ and that she had to seek counseling because of her worry over losing the opportunity to buy a house.” Jeter, 832 So.2d at 37 (discussing Oliver). In Murray, supra, where the plaintiffs home and possessions were .destroyed by fire, we held that an award of $84,000 was proper, although the plaintiff testified only that “he was ‘all shook up,’ ” and that “ ‘[i]t just was hard.’ ” 751 So.2d at 500. Kyles, supra, was a malicious-prosecution case in which the plaintiff was detained by law-enforcement officers for approximately three hours on a shoplifting charge. In that case, we held that an award of $15,000 was warranted, although “the only evidence presented of the plaintiffs alleged mental suffering was her husband’s testimony that she had cried on one occasion.” Jeter, 832 So.2d at 37 (discussing Kyles).

Burch was without electricity for 34 days. For two weeks of that time, he slept at the home of relatives. He testified that he was “inconvenienced,” that he “lost the use of his home,” and that he was “embarrassed” at having to “move back in with [his] relatives when [his] power was off.”

The direct evidence of mental distress in this case is more significant than it was in Kyles, which supported damages of $15,000. Burch testified that he was “inconvenienced” and “embarrassed”; the plaintiff in Kyles did not testify regarding her mental state. Also, the deprivation in this case lasted for weeks, while in Kyles the plaintiff was detained approximately three hours. We conclude, therefore, that an award of $19,900 for mental distress is not excessive. See also Alabama Power Co. v. Harmon, 483 So.2d 386 (Ala.1986) (award of $75,000 for mental distress was appropriate in an action based on a 10-month delay in providing promised electrical service).

III. Punitive Damages

Southern Pine contends that the $75,000 punitive-damages award was excessive. It insists, among other things, that there is “no reasonable relationship between compensatory and punitive damages.” Brief of Southern Pine, at 27.

The ratio of punitive damages to compensatory damages in this case is 3.75:1. That ratio is not a “significant deviation[],” Chrysler Corp. v. Schiffer, 736 So.2d 538, 550 (Ala.1999) (Houston, J., concurring in the result), from the 3:1 benchmark ratio discussed with approval in special writings of the Justices of this Court in various cases. See Jeter, 832 So.2d at 43 (Houston, J., concurring specially); Prudential Ballard Realty Co. v. Weatherly, 792 So.2d 1045, 1056 (Ala.2000) (See, J., concurring in part and dissenting in part); Life Ins. Co. of Georgia v. Johnson, 701 So.2d 524, 539 (Ala.1997) (See, J., concurring in part and dissenting in part). A ratio of 3:1 is “presumptively reasonable,” Weatherly, 792 So.2d at 1052 (Houston, J., concurring specially), and weighs against a remittitur, absent special justification. “Only in the most extraordinary situations would the award be deemed excessive when [the punitive-damages award] is at or below the benchmark.” Id. at 1053 (Houston, J., concurring specially).

As stated by the United States Supreme Court, “[p]erhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.” BMW of North America, Inc. v. Gore, 517 U.S. 559, 575, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)(footnote omitted). Similarly, Ala.Code 1975, § 6-11-20(a), provides: “Punitive damages may not be awarded in any civil action, except ... where it is proven by clear and convincing evidence that the defendant consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard to the plaintiff.” Wantonness is defined as “[c]onduct which is carried on with a reckless or conscious disregard of the rights or safety of others.” Ala.Code 1975, § 6 — 11— 20(b)(3). Reprehensibility may also be a function of the “ ‘duration of [the] conduct,’ ” and “ ‘the degree of the defendant’s awareness of any hazard which his conduct has caused or is likely to cause.’ ” Green Oil Co. v. Hornsby, 539 So.2d 218, 223 (Ala.1989) (quoting Aetna Life Ins. Co. v. Lavoie, 505 So.2d 1050, 1062 (Ala.1987) (Houston, J., concurring specially)).

Southern Pine argues that Burch has presented “no evidence of reprehensibility.” Brief of Southern Pine, at 25. Burch, however, argues that the reprehensibility of Southern Pine’s conduct is “extremely high.” Brief of Burch, at 43. Thus, resolution of this issue turns on whether a reasonable jury could have agreed with Burch’s characterization of Southern Pine’s conduct.

At the outset, we note that it is undisputed that Southern Pine terminated Burch’s electrical service largely on the assumption that the blonde woman its personnel allegedly observed at the mobile home on various occasions after May 7, 2001, was Tracy Burch. Thus, Southern Pine’s right to terminate Burch’s electrical service turned on the identity of Tracy Burch. In that connection, James Brown testified:

“Q. [By Burch’s counsel:] Mr. Brown, you don’t know who [the blonde woman] is; right?
“A. [By Brown:] No, sir. I do not.
“Q. Well, you would agree with me that if this is not Tracy Burch that you’ve been seeing, y’all have made one big mistake, haven’t you?
“A. If it’s not, yes, sir.”

Yet, remarkably, Tracy Burch was never identified for the record. For all that appears, she never entered the courtroom. In fact, Southern Pine’s personnel testified that they could not identify Tracy and that they would not have recognized her had she come to court. No photograph of her was ever produced. This was so even though James Brown testified that he thought Southern Pine had a copy of Tracy’s driver’s license in its file on her account.

Finding this aspect of the case peculiar, the trial judge stated:

“[The Court:] One thing I am surprised at is why Ms. Burch, who apparently lives down in Castleberry, Alabama, hasn’t sat up on this stand and let the jury see what she looks like. Apparently, neither one of you wants anybody to see her. What I don’t understand is why somebody hasn’t gone down to Ms. Burch’s house and knocked on the door and said: ‘Are you Tracy Burch? Well, I just wanted to meet you.’ And another thing I didn’t understand is why somebody hadn’t issued a subpoena to her to appear at a deposition that had a corporate representative show up.
“[By Burch’s counsel:] That’s our point. If they knew where she lived, they would have done it.
“[The Court:] Okay. Well, we now know where she lives because we heard about it right now, today. This is a small county. I can’t believe we couldn’t find out where somebody lived if we wanted to find out where they lived. You know what I’m saying?
“Okay. Well, I guess that’s all I need to say.”

(Emphasis added.)

It is undisputed that none of Southern Pine’s personnel ever asked the woman they allegedly saw on the premises to identify herself. Neither did it ask Christopher whether Tracy was still living on the premises, before it assessed the past-due balance on her account against his account, or before it terminated his electrical service for the failure to pay the past-due balance. Nor did Southern Pine mention to Christopher before terminating his service its suspicions that he had resided in the mobile home on County Road 27 before May 7, 2001.

It is further undisputed that Southern Pine conducted regular surveillance of Burch’s property and took a number of photographs of an unidentified woman it saw there. Indeed, on at least one occasion, Brown peered into the window of the mobile home with a telephoto camera lens to view the woman.

In addition to this undisputed evidence, Christopher’s testimony contradicted much of Southern Pine’s version of events. For example, he identified a woman who occasionally appeared on his property after May 7, 2001, as Jessica Murdock. He testified that, on May 7, 2001, the white Mercury automobile, which Brown and Dolihite allege they saw on County Road 27 occupied by Burch and a blonde female, was actually in Pensacola, Florida, and, therefore, was not being driven by Burch. He also denied that he had ever identified himself to Brown as Tracy Burch. He testified that he had not lived at the mobile home before May 7, 2001, and that Tracy did not live there after that date.

Burch testified that he was aware that Southern Pine was “spying” on him and that he found it offensive. He stated: “They ride by every evening. You can just about set a clock by them.... They just ride [by] in the evening ever since this case has been going on.”

If the jury believed Burch, and disbelieved Southern Pine — as it apparently did — it could have found the evidence that Southern Pine terminated Burch’s electrical service in “reckless or conscious disregard of [his] rights,” Ala.Code 1975, § 6-ll-20(b)(3), clear and convincing. On the basis of all the testimony presented, it could have found that Southern Pine’s conduct was based on mere unfounded suspicion that it was operating within statutory authority. Indeed, it could have found that Southern Pine never made a reasonable effort to identify the woman it alleged was Tracy Burch. Also, based on Burch’s testimony, the jury could have found that Southern Pine terminated Burch’s service before it made any effort to determine whether he had lived on the premises before May 7, 2001.

From these findings, the jury could have concluded that Southern Pine conducted an ongoing campaign of surveillance of Burch’s property — which included peeping into windows — solely for improper purposes, such as harassment or intimidation. Logically, the surveillance of any woman on the premises was useless as a means to identify Tracy Burch in the absence of actual knowledge of what Tracy Burch looked like.

That another jury might have made different findings and formed different conclusions is of no consequence to the issue before us, so long as this jury’s verdict is supported by the evidence. Intercontinental Life Ins. Co. v. Lindblom, 598 So.2d 886, 889 (Ala.1992). This record supports these findings.

In the Hammond hearing on remand, the trial judge stated:

“[I]n view of the testimony that ... Southern Pine ... tried to prove that someone else was living in the household and then coerc[e] them to pay a bill that an old customer who was not actually related to that person owed — I see that there was reprehensible conduct in view of the fact that electric service is so necessary to our current way of life.
“... I thought that the jury did make a reasonable decision about exactly what was appropriate in this case. I was surprised that [the verdict] was as light as it was[\ especially in view of the fact that Southern Pine cut off this man’s electric service without any real proof, even under their criteria, that he fit into the category of persons where they felt like electric service should be cut off. The shoddy investigation, I think, had a lot to do with the punitive damages award, the fact they didn’t really try to establish — that they just assumed a number of things about some mystery woman who was living in the trailer.”

(Emphasis added.)

Moreover, counsel for Southern Pine stated in the Hammond hearing:

‘Tour Honor, I did not submit any affidavits or do not have any live testimony to offer with respect to any of the elements ... outlined in Green Oil and Hammond because I think it was sufficiently covered in the trial except for ... the defendant’s financial position. And, Your Honor, we would concede that ... that would not be a consideration that would benefit Southern Pine in this case.... We cannot come in here and in any ivay stand before you and say that this verdict is going to unduly sting or cause a shutdown.”

(Emphasis added.)

In view of the complete absence of a reasonable pretermination inquiry by Southern Pine into the status of the household, and in light of its conduct after it terminated Christopher Burch’s service, Southern Pine’s arguments for a remittitur of the punitive-damages award are unpersuasive. In other words, Southern Pine has presented no reason for a reversal of the judgment or a remittitur of the punitive damages awarded. In addition, punitive damages are subject to de novo review on appeal. Acceptance Ins. Co. v. Brown, 832 So.2d 1 (Ala.2001); see also Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001). We have conducted our own review of the punitive-damages award, considering all of Southern Pine’s arguments, and we conclude that the award is not excessive. The judgment of the trial court is, therefore, affirmed.

AFFIRMED.

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

SEE, J., dissents.

      . Southern Pine called no witnesses at trial.

      . " 'An electric cooperative is a “public utility,” ’ ” Baldwin County Elec. Membership Corp. v. Lee, 804 So.2d 1087, 1090 n. 4 (Ala.2001) (quoting Mitchell v. Concerned Citizens of CVEC, Inc., 486 So.2d 1283, 1285 (Ala.1986)). See also Alabama Power Co. v. Cullman County Elec. Membership Corp., 234 Ala. 396, 174 So. 866 (1937).

      . During the other two weeks, he was away from home on business.

      . Southern Pine does not challenge the materiality of evidence of its post-termination conduct to the issue of punitive damages.


author: SEE, Justice.

text:
    ATS, INC., and ATS, Inc. of Georgia v. Glenn BEDDINGFIELD and Stephanie Beddingfield. ATS, Inc., and ATS, Inc. of Georgia v. Roger Nash and Tami Nash. ATS, Inc., and ATS, Inc. of Georgia v. Leo Byrtice Crawford.
    1011474, 1011475, and 1011476.
    Supreme Court of Alabama.
    April 25, 2003.
    Rehearing Applications Denied Oct. 3, 2003.

      S. Allen Baker, Jr., and Eric B. Langley of Balch & Bingham, LLP, Birmingham, for appellants.

      Don F. Wiginton, Birmingham, for ap-pellees Glenn Beddingfield and Stephanie Beddingfield.
    John G. Watts of Dunaway & Watts, LLP, Birmingham; and William P. Traylor III of Yearout & Traylor, P.C., Birmingham, for appellees Roger Nash and Tami Nash.
    W. Lee Pittman and J. Chris Cochran of Pittman, Hooks, Dutton, Kirby & Heliums, P.C., Birmingham, for appellee Leo Crawford.
   SEE, Justice.

ATS, Inc., and ATS, Inc. of Georgia (hereinafter collectively referred to as “ATS”) appeal from a judgment entered on a jury verdict in favor of the plaintiffs, Glenn Beddingfield and Stephanie Bed-dingfield, Roger Nash and Tami Nash, and Leo Byrtice Crawford (hereinafter collectively referred to as “the plaintiffs”). ATS argues that it was entitled to a judgment as a matter of law on the plaintiffs’ vicarious-liability claims based on the loaned-servant doctrine. We reverse and remand.

I.

ATS is an employee-leasing company; it contracts with small businesses to consolidate their employees into a single entity for purposes of providing payroll services and benefits such as medical insurance, retirement plans, and workers’ compensation. Under those contracts, the employees of the small businesses become employees of ATS. Thereafter, ATS leases the employees back to its customer — the small business. This arrangement is essentially one of form instead of substance. That is, ATS’s leasing contract does not otherwise alter an employee’s job responsibilities or supervisory setting at the customer’s business.

Mercer Trucking, Inc., a Georgia corporation (“Mercer Trucking”), became an ATS customer in 1997. Erwin Mercer, president of Mercer Trucking, became interested in the employee-leasing concept as a way to provide his drivers with workers’ compensation benefits and to reduce some of the payroll duties associated with running a business. ATS and Mercer Trucking entered into a “Personnel Payroll Service Agreement” on April 16,1997. This agreement provided, in relevant part:

“2. ATS, Inc. of Georgia will pay the employee’s wages, provide any applicable benefits, and will pay all applicable federal and state taxes with respect to the employment of such personnel including social security, [and] federal and state unemployment compensation taxes. ATS, Inc. of Georgia further will maintain payroll records and reports for all employees.
“3. ATS, Inc. of Georgia will procure and maintain Worker’s Compensation Insurance on all personnel supplied [to Mercer Trucking] hereunder as required by applicable law....
“5. Work related instructions of personnel will be handled by [Mercer Trucking] personnel”

(Emphasis added.)

Mercer retained primary responsibility for hiring and firing drivers in the same manner as he had before Mercer Trucking entered into the payroll-service agreement with ATS. That is, Mercer chose the drivers ATS employed and leased back to Mercer Trucking. Because ATS was technically the employer of Mercer Trucking’s drivers, it did have the authority to fire any of the drivers at will. However, the president of ATS testified that he never exercised this authority with any of ATS’s customers. Instead, ATS removed employees from its payroll only at the direction of the business that was its customer.

As an additional service, ATS sponsored safety meetings for its payroll-service customers at no additional cost. The safety meetings were tailored to a customer’s business and were provided only at a customer’s request. ATS conducted one such safety meeting on Mercer Trucking’s behalf on December 1,1997.

In May 1999, Roger Walker responded to a newspaper advertisement, which stated that Mercer Trucking was looking for truck drivers. On May 22, 1999, Walker had an interview with Mercer at Mercer Trucking. After Walker filled out some paperwork and took a road test to assess his driving abilities, Mercer hired Walker. At this time, Mercer explained to Walker that he would be an employee of ATS but that Walker would still receive orders from Mercer.

Mercer also gave Walker ATS’s employment policies manual, which ATS had prepared exclusively for Mercer Trucking. This manual contained rules and regulations that all ATS employees working for Mercer Trucking were expected to follow. Those rules set forth the duties required of ATS employees in their “general conduct” of Mercer Trucking’s business. Mercer Trucking, as a payroll-service customer, was primarily responsible for enforcing those employment policies.

One of the documents Walker signed on his date of hire was an “Acceptance of Employment” form that contained the following provision:

“I, Roger D. Walker, do hereby accept employment with ATS, Inc. of Georgia, with the following express understanding [sic] agreements [sic]:
“I do expressly acknowledge, agree, and understand that I am to be employed solely by ATS, Inc. of Georgia, and that, although I may be under some day-today supervision from someone other than ATS, Inc. of Georgia, I hereby expressly do not consent to any employer-employee relationship with any other party. I further expressly object to, and reject being a special or other classification of employee, either expressly or by implication, of anyone other than ATS, Inc. of Georgia.”

(Emphasis added.)

May 26, 1999, was Walker’s first day driving for Mercer Trucking. Walker received instructions directly from Mercer as to where he should pick up and drop off loads. Walker telephoned Mercer for instructions each time he finished unloading his truck.

On May 27, 1999, Walker dropped off a truckload of cargo at Tom’s Potato Chips in Knoxville, Tennessee. After unloading, Walker telephoned Mercer for further instructions. Mercer told Walker to drive to Chattanooga for a possible pickup. Walker drove south on Interstate 75 toward Chattanooga. Seeing a sign warning of road work ahead, Walker slowed his truck to 50 miles per hour. Walker then realized that the traffic ahead of him had stopped, and he started to brake. Walker attempted to maneuver his truck into the emergency lane, but it continued to slide forward and collided with a minivan stopped in the traffic. All four occupants in the minivan were killed.

Walker telephoned Mercer to report the accident. Walker had no contact with anyone at ATS regarding the accident. As of the day of the accident, ATS had not yet received from Mercer Trucking Walker’s hiring forms and related paperwork.

In January 2000, the plaintiffs, as personal representatives of the estates of the deceased victims, initiated wrongful-death actions against Walker, Mercer Trucking, ATS, and other defendants in the Jefferson Circuit Court. The plaintiffs asserted claims against both ATS and Mercer Trucking of (1) negligence and recklessness under the doctrine of respondeat superior and (2) negligent and reckless hiring. On April 3, 2001, ATS moved for a summary judgment. On August 2, 2001, the trial court denied ATS’s motion.

On October 29, 2001, a jury trial began. The trial court split the trial into three phases. Phase one was to address the negligence and recklessness claims against Walker and the vicarious-liability claims against ATS and Mercer Trucking; phase two was to address the negligent- and reckless-hiring claims against ATS and Mercer Trucking and to assess, if necessary, the amount of compensatory damages; and phase three, if it became necessary, was to address the amount of punitive damages.

During phase one, ATS moved for a judgment as a matter of law (“JML”) both at the close of the plaintiffs’ evidence and at the close of all the evidence. The trial court denied each motion and submitted interrogatories to the jury. The jury answered the special interrogatories, finding that Walker’s conduct was negligent and reckless and that both ATS and Mercer Trucking were vicariously liable for Walker’s conduct.

During phase two, the jury found that ATS and Mercer Trucking were not liable on the negligent- and reckless-hiring claims. The jury also assessed compensatory damages in the amount of $9.5 million for all four victims. ATS then moved for a JML on the issue of punitive damages. The trial court denied the motion, and the trial proceeded to its third and final phase. During phase three, the jury assessed punitive damages against Walker, Mercer Trucking, and ATS in the aggregate sum of $15 million.

On November 9, 2001, the trial court entered a judgment on the jury’s verdict. On December 7, 2001, ATS moved for a JML or, alternatively, for a new trial. ATS simultaneously moved the trial court to evaluate the punitive-damages award. On May 16, 2002, the trial court denied ATS’s outstanding postjudgment motions. ATS filed a timely notice of appeal.

II.

We have clearly stated the standard for appellate review of a trial court’s ruling on a motion for a JML:

“The standard of review applicable to a ruling on a [renewed] motion for [a JML] is identical to the standard used by the trial court in granting or denying a motion for [a JML], Thus, in reviewing the trial court’s ruling on the motion, we review the evidence in the light most favorable to the nonmovant, and we determine whether the party with the burden of proof has produced sufficient evidence to require a jury determination.
“... In ruling on a [renewed] motion for a [JML], the trial court is called upon to determine whether the evidence was sufficient to submit a question of fact to the jury; for the court to determine that it was, there must have been ‘substantial evidence’ before the jury to create a question of fact. ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer that the existence of the fact sought to be proved....’”

American Nat’l Fire Ins. Co. v. Hughes, 624 So.2d 1362, 1366-67 (Ala.1993) (citations omitted).

III.

ATS argues that under the loaned-servant doctrine it is not vicariously liable for Walker’s negligent and reckless actions. We agree.

Because the accident giving rise to this action occurred in Tennessee, the parties agree that the substantive issues in this case are governed by Tennessee law. Under Tennessee law, an employer is liable for an employee’s negligence based solely upon the doctrine of respondeat superior. Smith v. Henson, 214 Tenn. 541, 381 S.W.2d 892, 897 (1964). To determine whether a master-servant or employer-employee relationship exists, “control is a key element.” Armoneit v. Elliott Crane Serv., Inc., 65 S.W.3d 623, 629 (Tenn.Ct.App.2001). Unlike Alabama, “[i]n Tennessee, the right to control the result is not determinative of the existence of the relation of master and servant, but the actual control of means and methods is.” Id. (citing McDonald v. Dunn Constr. Co., 182 Tenn. 213, 220, 185 S.W.2d 517, 520 (1945)).

Under the loaned-servant doctrine, “[a]n employee of one employer may become the servant of another and shift the liability for his negligent acts to the second employer.” Parker v. Vanderbilt Univ., 767 S.W.2d 412, 416 (Tenn.Ct.App.1988). In Gaston v. Sharpe, 179 Tenn. 609, 614, 168 S.W.2d 784, 786 (1943), the Supreme Court of Tennessee adopted the Restatement of Agency view in fashioning a test to determine whether an employee of one employer is the loaned servant of another employer:

“ ‘Since the question of liability is always raised because of some specific act done, the important question is not whether or not [the employee] remains the servant of the general employer as to matters generally, but whether or not, as to the act in question, he is acting in the business of and under the direction of one or the other. It is not conclusive that in practice he would be likely to obey the directions of the general employer in the case of conflict of orders. The question is as to whether it is understood between him and his employers that he is to remain in the allegiance of the first as to a specific act, or is to be employed in the business of and subject to the direction of the temporary employer as to the details of such act. This is a question of fact in each case.’ ”

As the above rule acknowledges, whether an employee of one becomes the loaned servant of another is a question of fact. Id. However, in this case, there is no conflicting evidence as to where authority to direct the specific act that caused the deadly accident lay.

First, the authority vested in Mercer Trucking as to its leased employees is set forth in the payroll-service agreement between Mercer Trucking and ATS. “The interpretation of an unambiguous written agreement is a question of law for the court.” Parker, 767 S.W.2d at 417. In Parker, the Tennessee Court-of Appeals, applying the test set forth in Gaston and relying on the terms of an unambiguous agreement between Vanderbilt University and a local hospital, held that a doctor was the loaned servant of the hospital. Id. Pursuant to the agreement, Vanderbilt University provided the local hospital with surgical residents. The agreement specifically provided that the residents, as members of the hospital’s surgical staff, were accountable solely to the hospital.

Similarly, in this case, the payroll-service agreement between Mercer Trucking and ATS states that Mercer Trucking was responsible for providing any “work related instructions” to its leased personnel. On May 27, 1999, Mercer, exercising the authority vested in him by the payroll-service agreement, instructed Walker to proceed to Chattanooga for a possible pickup on Mercer Trucking’s behalf. While Walker was en route to Chattanooga, he was “acting in the business of and under the direction of [Mercer].” Gaston, 179 Tenn. at 614, 168 S.W.2d at 786. Thus, under the Gaston test, Walker was acting as the loaned servant of Mercer Trucking at the time of the fatal accident.

The plaintiffs argue that because Mercer Trucking did not provide Walker with specific instructions as to how to drive the truck, Walker cannot be deemed to be a loaned servant of Mercer Trucking. They claim that ATS retained responsibility for training and supervising the drivers it leased, and that, therefore, ATS retained authority over the specific act that caused the accident, namely, Walker’s driving. In support of this argument, the plaintiffs point to the employment policies manual Walker received when he was hired.

Contrary to the plaintiffs’ suggestion, the manual does not contain any instructions on how to drive a truck. The manual actually directs employees to communicate with Mercer Trucking, not with ATS, “for matters pertaining to [their] dispatch.” Walker’s driving caused the accident, not his failure to perform the general tasks described in the manual, and it is Walker’s driving, not ATS’s retention of control regarding Walker’s general conduct in performing Mercer Trucking’s business, that is relevant to this analysis. Gaston, 179 Tenn. at 614-15,168 S.W.2d at 786.

Moreover, on the date of the accident, it was impossible for ATS to have been exercising any actual control over Walker, because at that time ATS was unaware that Mercer had hired Walker and, in turn, that. Walker had thereby become one of ATS’s employees. Therefore, the plaintiffs’ argument that Walker was under the day-to-day supervision of ATS is not supported by the record.

IV.

We conclude that, as a matter of law, Walker was the loaned servant of Mercer Trucking at the time of the accident, and, therefore, that ATS is not liable for Walker’s negligent and reckless actions. The trial court’s order denying ATS’s motion for a JML is reversed, and this cause is remanded to the trial court to enter a judgment in favor of ATS consistent with this opinion.

1011474 — REVERSED AND REMANDED.

1011475 — REVERSED AND REMANDED.

1011476 — REVERSED AND REMANDED.

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

MOORE, C.J., concurs in the result.

      . ATS raises additional arguments on appeal; however, because resolution of the loaned-servant issue is dispositive, we will not address those additional arguments.

      . In addition to its payroll-service agreement, ATS also offered a full-service agreement, although it did not offer this type of agreement in Georgia. Under a full-service agreement, ATS recruited and hired employees for its customers, performed background checks, and ensured compliance with certain federal regulations.

      . We have omitted names of the remaining defendants for purposes of simplification. ATS is the only defendant that is a party to this appeal.

      . The four decedents were residents of Jefferson County, Alabama.

      . Tennessee law governs the substantive issues in this case. See Part III of this opinion. Tennessee law provides for compensatory damages in a wrongful-death action. See Tenn.Code Ann. § 20-5-113 (2002).

      .The plaintiffs and ATS consented to an extension of the 90-day period provided in Rule 59.1, Ala. R. Civ. P., during which a post-judgment motion may remain pending.

      . The plaintiffs claim that Mercer acted as ATS's agent for purposes of recruiting, hiring, and interviewing drivers. The plaintiffs, however, misstate the parties' relationship. Mercer Trucking contracted with ATS to provide it with payroll services only. It, and not ATS, retained control over which drivers it hired to drive its trucks. Because Mercer Trucking never gave ATS authority to act on its behalf with respect to hiring decisions, ATS could not vest in Mercer, as one of ATS's agents, authority with respect to such decisions.

      . The plaintiffs argue that the employment-acceptance form Walker signed prohibited him from being classified as a loaned servant of Mercer Trucking. However, "proper analysis must be geared toward the substantive relationship, rather than the formal, nominal procedural acts that might be observed in the relationship.” Catlett v. Indemnity Ins. Co. of North America, 813 S.W.2d 411, 416 (Tenn.1991). Cf. United States v. Boyd, 211 Tenn. 139, 155, 363 S.W.2d 193, 200 (Tenn.1962) ("The mere placing of terms such as agent or independent contractor in the contract does not make them such in the law. The surrounding facts and circumstances determine the relationship.”).