author: THOMAS, J„ for the Court.

text:
    Tabatha SPOO, A Minor by and Through Her Mother and Next Friend, Detrece SPOO, Appellant, v. T.L. WALLACE CONSTRUCTION COMPANY, Appellee.
    No. 2002-CA-01373-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2003.

      J. Niles McNeel, Louisville, attorney for appellant.
    Jennifer Lynn Walley, attorney for ap-pellee.
    Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.
   THOMAS, J„ for the Court.

¶ 1. Tabatha Spoo, by and through her mother, Detrece Spoo, as next friend, appeals the decision of the Attala County Circuit Court to grant summary judgment to the defendant, T.L. Wallace Construction Company, and dismissing the complaint with prejudice. Tabatha assigns two errors for our review:

I. THE TRIAL COURT ERRED IN FINDING NO GENUINE ISSUE OF MATERIAL FACT ALTHOUGH THE DEFENDANT FAILED TO COMPLY WITH THE TRÁFFIC CONTROL PLAN.

II. THE TRIAL COURT ERRED IN FINDING NO GENUINE ISSUE OF MATERIAL FACT ON WHETHER DEFENDANT WAS NEGLIGENT IN NOT INSTALLING ADDITIONAL BARRICADES AND WARNINGS AFTER NOTICE OF PUBLIC USE OF THE BYPASS.

¶ 2. Because we find the defendant did not breach its duty of care, we affirm the grant of summary judgment.

FACTS

¶ 3. In October 1999, T.L. Wallace Construction Company (Wallace) was building a two-lane road between Highways 35 and 14, thereby creating a bypass around the southern perimeter of Kosciusko, Mississippi. Three bridges were constructed between these two points, Bridges A, B and C, with Bridge C closest to Highway 35, the eastern terminus of the project. Although the bridges were intact, the road itself was unfinished and unpaved. The road bed was approximately thirteen inches lower than the bridge, essentially creating a one foot cement wall at the bridge approach. This was to be corrected in the final paving of the road.

¶ 4. In order to cross a bridge to attend other work before the paving of the road, Wallace had erected make-shift dirt ramps at either end of a bridge in use. These ramps were later removed when no longer needed.

¶ 5. At the Highway 35 end of the project, three possible points of ingress or egress existed: a one-lane entrance ramp in the south-bound lane; a one-lane exit ramp to the north-bound lane; and a two-lane entrance and exit in the center. The one-lane entrance and exit ramps were blocked by orange and white barricades measuring twelve feet wide and four feet high, each of which had attached a sign reading ROAD CLOSED. The two-lane entrance/exit had two such barricades side by side, at least one of which also carried a ROAD CLOSED sign. In addition to the barricades, the entrance ramp was blocked by five orange and white barrels while the exit ramp was blocked by two barrels.

¶ 6. Shortly after midnight on October 30, 1999, Dale Spoo was driving north on Highway 35. In the backseat of his Chevrolet Blazer were Dale’s three children, three year old twins and a two year old son. Dale’s fourteen year-old niece, Tabatha Spoo, rode in the front passenger seat. Two other vehicles traveled in a caravan with the Blazer. Dale’s sister, Denise, and her boyfriend drove in one of the other vehicles and Michael Kellum, a friend of Dale’s, in the other.

¶ 7. The occupants of these other two vehicles saw Dale drive around the barricades at the two-lane entrance and proceed onto the unopened bypass road. Denise and Kellum both continued on Highway 35. Dale crashed into the thirteen inch unfinished approach to Bridge C. Wallace had removed the dirt ramp more than a week earlier. Dale was killed at the scene. Tabatha suffered bilateral broken ankles and a broken back, resulting in partial paralysis. At least one of the small children in the back seat was injured but the extent of those injuries are unstated in the record.

¶ 8. Expert opinion estimated Dale’s speed at the time of impact as between fifty and fifty-five miles per hour, based upon an evaluation of the extensive damage to the Blazer. The Blazer also had only one functioning headlight prior to the accident. Autopsy results show Dale had a blood alcohol level of 0.12% at the time of impact, as well as the presence of marijuana metabolites of sufficient levels to establish Dale had ingested marijuana within the several hours before his death.

¶ 9. Tabatha later filed suit against Wallace, claiming negligence for failing to erect barriers that would keep the public from entering the bypass, and for creating a hazard by removing the dirt ramps with the knowledge that the public utilized the unfinished road including the bridges. After discovery, Wallace moved for summary judgment which was granted on the basis that Dale Spoo was the sole proximate cause of Tabatha’s injuries.

ANALYSIS

¶ 10. Because each of the assignments of error may be resolved upon the same bases, we combine them for discussion. For appeals from summary judgment, we employ a de novo standard of review. Lewallen v. Slawson, 822 So.2d 236, 237(¶ 6) (Miss.2002).

¶ 11. In order to succeed on a claim of negligence, as Tabatha here complained, the plaintiff must establish four elements:

(1) A duty, or obligation, recognized by law, requiring the person to conform to a certain standard of conduct for the protection of others against unreasonable risks.
(2) A breach of the duty, a failure on the person’s part to conform to the standard required.
(3) A reasonably close causal connection between the conduct and the resulting injury.
(4) Actual loss or damage resulting to the interests of another.

Carpenter v. Nobile, 620 So.2d 961, 964 (Miss.1993).

¶ 12. The duty owed by the contractor of a roadway under construction and not yet open to unrestricted public use is to give legally sufficient notice to a traveler that the road is, in fact, under construction and, attendant with that status, the traveler should anticipate impediments to his passage. Graves v. Johnson, 179 Miss. 465, 479, 176 So. 256, 260 (1937). Once that notice has been conveyed, the driver is obligated to maintain vigilant caution and keep a constant lookout for perils. Id. Although most authority on this standard of care is of older vintage, the vigilant care requirement for drivers of roads under construction was very recently discussed by this Court and it is still the applicable standard. Mississippi Dept. of Transp. v. Trosclair, 851 So.2d 408, 417-18 (¶¶ 31-32) (Miss. Ct.App.2003).

¶ 13. From this standard are drawn two crucial questions: (1) whether Wallace gave notice sufficient that Dale Spoo knew, or should have known, that the bypass road was still under construction and (2) if so, did Dale Spoo then exercise the necessary degree of care in response to this knowledge. Graves, 179 Miss, at 480, 176 So. at 260. Although we need not address the second question unless the first is answered in the affirmative, the answer to both of these questions is unequivocal: Yes, to the first. No, to the second.

¶ 14. Without doubt, Dale Spoo knew the road was still under construction. All entrances from Highway 35 were barricaded and signs announced the road was closed. Tabatha does not even attempt to argue otherwise as she admitted during discovery the bypass was still under construction on October 30, 1999. Even without this admission, no reasonable jury could find that twelve foot barricades, barrels and signs in the middle of each entrance were insufficient to give notice that the road was under construction.

¶ 15. Dale had previously avoided the barricades and traveled the unopened road. In her motion opposing summary judgment, Tabatha argues this is evidence of proximate cause—had Wallace not been negligent in placing barriers and barrels, Dale would not have been able to drive around them. The fact that Dale had previously driven the unopened road by going around the barricades merely emphasizes his knowledge that the road was closed and under construction. We know of no authority requiring a contractor to completely block the entrance to an unfinished road with an immovable barrier nor does Tabatha point us to any. We do, however, have authority which states that one who drives around or through any barricade of an officially closed highway or road is guilty of a criminal misdemeanor. Miss. Code Ann. § 63-3-321 (Rev.1996).

¶ 16. It is also equally apparent that Dale did not exhibit the necessary degree of care while traveling the bypass road. Tabatha either admits or does not dispute the following facts: Dale had a blood alcohol level of 0.12%. This exceeds the legal limit of 0.08% to drive a car. Miss. Code Ann. § 63-11-30(1) (Rev.1996). The autopsy report also showed recent consumption of marijuana. Expert opinion held that the result of the drug and alcohol ingestion was a significant impairment of Dale’s judgment, perception and motor skills. Dale was driving between fifty and fifty-five miles per hour on an unpaved, unfinished road. The vehicle had only one functioning headlight and the accident occurred just after midnight.

¶ 17. The driver of a motor vehicle is required to keep the vehicle under control and drive at a speed reasonable for the conditions faced. Upchurch ex. rel. Upchurch v. Rotenberry, 761 So.2d 199, 205 (¶ 24) (Miss.2000). Dale did nothing to accommodate either the conditions of the road or his own impaired status. Had the signs been absent from the road entrances, Dale would have still failed to keep the proper lookout. The conditions of the road — unpaved, unlighted, littered with construction debris and equipment — indicated that great care needed to be paid under the circumstances. The only reasonable conclusion to be drawn from the undisputed facts is that Dale did not exercise vigilant caution and a constant lookout for danger. By driving impaired and failing to account for the conditions of the road, he failed to exhibit even ordinary caution. We particularly note that in no pleading or otherwise has Tabatha attempted to argue or otherwise persuade that Dale’s actions on the night of October 80, 1999, met the requisite standard of care he assumed by knowingly driving on a road under construction. Her only argument is that Wallace should have done more.

¶ 18. Tabatha argues that despite the barricades and signs, Wallace may yet have proximately caused her injuries because Wallace failed to comply with the Mississippi Department of Transportation traffic control plan. The plan called for the placement of eleven barrels at the Highway 35 site but Wallace only had seven, a fact Wallace does not dispute.

¶ 19. Having only seven barrels instead of eleven does constitute non-compliance with the traffic plan. It is not, however, proximate cause, nor does it create a reasonable question on the issue unless Tabatha can make a sufficient showing that the absence of these four barrels somehow led Dale Spoo to reasonably believe the road was finished, open to the public and free of construction obstacles such that he need only exercise ordinary care. This Tabatha cannot do nor, again, has she attempted to do so.

¶ 20. We have already agreed with the trial court that the notices given were legally sufficient for Wallace to discharge its duty of care. Tabatha’s own witnesses, Denise Spoo and Michael Kellum, testified by deposition that the barricades were up and in place and Dale had to drive around them in order to access the bypass road. Denise did state she thought the barricade on one of the ramps had been moved to one side. Dale, however, did not access the bypass via one of the ramps, but rather by driving around the barricades at the two-lane main entrance.

¶ 21. Tabatha further argues that Wallace was negligent by removing the dirt ramps to Bridge C because it had knowledge the public was using the road, and the bridge, thereby creating a dangerous condition for which additional barricades or signs should have been placed at the entrance to the affected bridge.

¶22. Wallace does not dispute there was evidence people were using the road. A Wallace supervisor stated at deposition that on nights and weekends the barricades were sometimes moved and workers would see tire tracks at the site. There was testimony that Dale Spoo made unauthorized use of the road on previous occasions.

¶23. This does not change or increase Wallace’s duty. The contractor’s duty is to warn that the road is under construction. Having fulfilled this initial duty by barricading and placing signs at each possible entrance, Wallace was not required to place additional signs or barriers around a particular hazard within the barricades. Blain v. Sullivan, 204 So.2d 486, 438-39 (Miss.1967). That people in the community would at times make use of the unfinished bypass does not change this. Id. at 438. One who chooses to ignore the warnings and enter such a road does so at one’s own peril. Central Pav ing & Constr. Co. v. McCaskin, 183 Miss. 814, 824, 184 So. 464, 466 (1938).

¶ 24. We are aware that Tabatha’s expert reconstructionist opined that the accident would not have occurred had Wallace made certain the public could not enter the bypass, that the knowledge of the public’s use of the bypass required Wallace to take additional steps. That is not the law. It is axiomatic that all accidents could be avoided if only someone somewhere would do something differently. The question of law we address here is not whether something else could have been done differently but rather whether there was a breach of the duty owed by Wallace by failing to do that which was required. There was not.

¶ 25. We are also aware that Tabatha’s injuries were not the result of her own negligence. As a passenger in the vehicle, she was at the mercy of her uncle’s imprudent actions. Although she was not the driver, any negligence Dale may have shown would not be attributable to Tabatha and she could have recovered if Wallace was in any degree the proximate cause of her injuries. Id. at 825, 184 So. 464. This rule does not aid a passenger when the sole proximate cause of loss was the driver. Id.

¶26. Summary judgment is proper when, after adequate discovery and upon motion by a party, the non-movant fails to make a showing sufficient to establish the existence of an essential element to that party’s case and upon which that party would bear the burden of proof at trial. Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss.1987). In such cases, there can be no genuine issue of material fact for jury determination as a complete failure concerning an essential element necessarily renders all other facts immaterial. Id. at 683 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

¶ 27. Tabatha admits that barriers and signs were in place and that all who approached had notice of the road’s status as closed for construction. This admission means Tabatha cannot prove an essential element of a negligence claim and one for which she would bear the burden of proof at trial — that Wallace breached its duty of care. The only way by which Tabatha could conceivably recover against Wallace would be to show that Dale Spoo drove with the requisite degree of care demanded by the circumstances. Tabatha has made no showing at all of this. Under these facts, summary judgment was properly granted.

¶ 28. THE JUDGMENT OF THE AT-TALA COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


source: Caselaw Access Project

author: BRIDGES, J., for the court.

license: Public Domain

text:
    In the Interest of E.A.J., a Minor.
    No. 2002-CA-01452-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2003.

      James L. Farrior, Biloxi, attorney for appellant.
    Herbert W. Wilson, Gulfport, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.
   BRIDGES, J., for the court.

¶ 1. On or about April 10, 2002, an abuse petition was filed in the Harrison County Youth Court, alleging that E.A.J., a three year old girl, had been sexually abused. The allegations in the petition were admitted by the child’s mother. On April 9, 2002, a shelter hearing was held in which the court placed the child in the custody of the Department of Human Services, appointed Dr. J. Donald Matherne to examine the child, and ordered that upon the completion of the examination the child be released to the custody of the mother. The court also enjoined the father from any contact with the child and set a reconvened hearing for April 11, 2002. At the reconvened hearing, the court continued the child in the custody of the mother, granted supervised visitation to the father, and also set a date for a plea and a trial. After the plea was conducted, this matter was set for trial on June 12, 2002.

¶2. At trial, there were a number of witnesses that testified, including Dr. J. Donald Matherne, Nancy Barrett, a social worker, and the minor child, E.A.J. Upon the completion of the trial/hearing, the court adjudicated that E.A.J. was abused as set out in the petition. On July 29, 2002, a disposition hearing was held at which the court placed custody of the child with her mother and ordered the Department of Human Services to attempt to arrange visitation with the father. On August 20, 2002, a permanency hearing was held and the matter was taken under advisement.

¶ 3. It is the adjudication of abuse that the father, W. J., now appeals to this Court.

STATEMENT OF THE ISSUE

WHETHER THE TRIAL COURT ERRED IN ALLOWING E.A.J., A MINOR CHILD THREE YEARS OF AGE, TO TESTIFY WITHOUT FIRST ESTABLISHING HER COMPETENCY.

FACTS

¶4. After two shelter hearings and a plea hearing, the court set this matter for trial on June 12, 2002. As stated above, there were several witnesses who testified, including Dr. J. Donald Matherne, Nancy Barrett, and the minor child, E.A.J.

¶ 5. The first witness to testify was Dr. J. Donald Matherne, a clinical psychologist, who first examined the child pursuant to the orders of the court. At trial, Dr. Matherne was qualified as an expert and concluded that the child had been sexually abused by W. J.

¶ 6. The next witness to testify was Nancy Barrett, a social worker. Barrett testified that the child demonstrated what “her daddy” had done. Barrett also made other statements delineating what was said by the child and the circumstances surrounding the child’s statements.

¶ 7. The final witness to testify was the minor child, E.A.J. She testified as follows:

WILSON (Youth Court Prosecutor):Well, what happened?
E.A.J.: (No response)
WILSON: Can you tell me?
E.A.J.: He sticked in my butt.
WILSON: Sticked what in your butt?
E.A.J.: (Witness indicates)
WILSON: Fingers?
E.A.J.: (Witness indicates)
WILSON: Whose fingers?
E.A.J.: (Witness indicates)
WILSON: Are you talking about your daddy?
E.A.J.: (Witness indicates)
WILSON: You’ve got to talk to me.
E.A.J.: Yes, ma’am.

¶8. On July 8, 2002, the court, after hearing all the evidence, entered its opinion finding that by a preponderance of the evidence the child had been sexually abused and adjudicating the child to be an abused child.

ANALYSIS

WHETHER THE TRIAL COURT ERRED IN ALLOWING E.A.J., A MINOR CHILD THREE YEARS OF AGE, TO TESTIFY WITHOUT FIRST ESTABLISHING HER COMPETENCY.

¶ 9. W. J.’s only assignment of error is that the trial court erred in allowing the child, E.A.J., to testify. He claims that the court failed to establish her competency and that the case should therefore be reversed. W. J.’s argument is a two prong approach. First, W.J. argues that because of the age of the child and some of her responses, the court should have, but failed to, voir dire the witness in order to show she could appreciate the importance of telling the truth. Secondly, because the court failed to voir dire the child to establish that she was a competent witness, her testimony is irrelevant under Rule 401 of the Mississippi Rules of Evidence and the case should be reversed.

¶ 10. In Barnett v. State, 757 So.2d 823, 328(¶ 13) (Miss.Ct.App.2000), this Court clearly stated that the standard, which should be considered in determining whether testimony should be allowed or not, is abuse of discretion. In that case involving the same issue, concerning the testimony of a minor witness, this Court started out by stating that “[a]ny analysis challenging the competency of a witness begins with the assumption that every person is competent to give evidence, subject to certain exceptions based on considerations of policy unrelated to the capacity of the witness to comprehend and relate relevant information.” Id. (quoting M.R.E. 601). This Court continued by saying that to exclude the testimony of a witness, that party must convince the trial court that the “prospective witness lacks the fundamental capacity to testify helpfully because he is unable to perceive and remember events, is incapable of understanding and responding appropriately to questions concerning those events, or is not able to appreciate the importance of truthfulness in relating his version of the events.” Id. (citing Bowen v. State, 607 So.2d 1159, 1160-61 (Miss.1992)).

¶ 11. Also stated in the Barnett case is an interpretation of Mississippi Rule of Evidence 601 in connection with Ivy v. State, 522 So.2d 740 (Miss.1988).

Though a literal reading of Rule 601 would suggest that there is no basis to exclude the testimony of a child, no matter its level of intellectual development, the Mississippi Supreme Court has made clear that the trial court may continue to exclude such evidence in its discretion by focusing on issues of relevancy under Rule 401 rather than the issue of competency.

Barnett, 757 So.2d at 328(¶ 13) (citing Ivy, 522 So.2d at 742).

¶ 12. This Court continued in Barnett by stating:

Rule 401 defines relevance as evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401. Apparently, the supreme court in Ivy meant to convey the notion that, if the trial court determined that, because of the tender years of the proposed witness, the child could not be expected to accurately recall and relate events as they actually occurred or to understand the importance of reporting any such recollections truthfully, the court could exclude any such proposed testimony on the basis that it did nothing to prove or disprove a fact critical to the case.

Id. at 328(¶ 14).

¶ 13. The Barnett case goes on to explain the effects of the Ivy case to its own facts and concludes that there is “nothing in Ivy or later decisions that would significantly alter the legal issues involved from those that have traditionally affected admissibility of a young child’s proposed testimony.” Id. at 329(¶ 15).

¶ 14. It is also noteworthy to state that a court’s preliminary questioning of a victim in a child abuse prosecution is sufficient to establish a victim’s competency to testify, and a separate voir dire is not required. Bailey v. State, 729 So.2d 1255, 1259(¶ 20) (Miss.1999).

¶ 15. In the present case, the trial court examined the minor outside the presence of the jury. The judge questioned the minor regarding her ability to recall the past and her understanding of the importance of telling the truth and listened to her responses to those questions. After questioning and listening to the child, as well as observing the demeanor of the child, the trial court determined that the child’s testimony was at least trustworthy enough to be heard. As stated above, the issue of exclusion of a child witness is at the sound discretion of the trial court. Barnett, 757 So.2d at 328(¶ 13). Without W.J. showing how, in some demonstrable way, the trial court abused that discretion, there is no basis for this Court to interfere with the court’s ruling. Bowen v. State, 607 So.2d 1159, 1161 (Miss.1992). There was no such showing in this ease, therefore, we find this issue is without merit.

¶ 16. Even if the court had committed error in permitting the child to testify, that error would have been cured by the testimony of Barrett, the social worker, and Matherne, the psychologist.

¶ 17. THE JUDGMENT OF THE HARRISON COUNTY YOUTH COURT IS AFFIRMED. COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: McMILLIN, C.J., for the court.

text:
    Henry DENSON a/k/a June-June, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00860-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2003.
    Walter E. Wood, Ridgeland, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before McMILLIN, C.J., MYERS and GRIFFIS, JJ.
   McMILLIN, C.J., for the court.

¶ 1. Henry Denson, convicted by a Madison County Circuit Court jury of sale of cocaine, has appealed his conviction to this Court. In his appeal, Denson claims three errors in the conduct of his trial that would require this Court to reverse his conviction. They are that (a) the court erred in denying his requested instruction telling the jury to view a cooperating individual’s testimony with caution, (b) the court erred in admitting both the audiotape of the alleged drug transaction and a written transcript, and (c) that the verdict of guilty was against the weight of the evidence. We find no merit in these issues and, for that reason, affirm Denson’s conviction.

I.

Facts

¶ 2. Testimony offered by the State indicated that Willie Jones, a civilian cooperating with law enforcement, was able to purchase a supply of cocaine from Denson for $60 in cash that had been given to Jones for that purpose by the officers. Jones was wearing a body wire during the transaction which permitted the transaction to be recorded; however, no person directly observed the purported transaction other than Denson and Jones. Law enforcement officers did, however, see Denson drive up to a prearranged location and observed Jones entering Denson’s vehicle. Immediately thereafter, officers retrieved a substance from Jones that ultimately proved to be cocaine. They also searched his person and determined that the $60 in “buy” money previously given to him was no longer in his possession.

II.

A Limiting Instruction Regarding the Testimony of Willie Jones

¶ 3. Denson requested the following instruction in regard to the jury’s consideration of Jones’s testimony:

This Court instructs the jury that the law looks with suspicion and distrust on the testimony of an alleged informant, and requires the jury to weigh same with great care and suspicion. You should weigh the testimony from the alleged informant, and passing on what weight, if any, you should give this testimony, you should weigh it with great care and caution, and look upon it with distrust and suspicion.

¶ 4. The trial court refused the instruction, and Denson now contends that this was reversible error. In support of his argument, Denson relies primarily on the case of Moore v. State, 787 So.2d 1282 (Miss.2001). In fact, the requested instruction is identical to the one the Mississippi Supreme Court considered in reversing Moore’s conviction based on the trial court’s refusal to give it. Id. at 1286(¶ 13).

¶ 5. The facts in Moore, however, are substantially different. The relevant witness in that case was “a jailhouse informant” whose sole contribution to the prosecution’s case was his contention that Moore had confessed to the relevant crimes during a time they were both incarcerated. Id. at 1285(¶ 9). The proof showed that, after reporting the alleged confession, the informant was released from confinement and his attorney testified that, but for the witness’s cooperation, he would not, in all likelihood, have been released. Id. at 1286(¶ 14). The supreme court, in finding that the absence of a cautionary instruction concerning this testimony was reversible error, quite pointedly condemned what it referred to as “jailhouse snitch testimony.” Id. at 1287(¶ 15).

¶ 6. It is true that cooperating individuals who participate in controlled buys such as occurred in this case are often persons who are in trouble with law enforcement and agree to participate in such activity in the hope of receiving more lenient treatment. Jones admitted on cross-examination that he had agreed to cooperate with law enforcement to make three drug buys in hopes that it would help him in regard to pending criminal charges against him. However, we conclude that Moore deals strictly with the limited subject of uncorroborated testimony of jailhouse snitches and that the circumstances giving rise to Jones’s testimony as a participant in this controlled drug buy are so significantly different factually that Moore has essentially no application.

¶ 7. In a somewhat different tack, the defendant in Jones v. State, 740 So.2d 904, 909-10(¶ 17) (Miss.1999), sought a cautionary instruction regarding the testimony of a cooperating individual on the theory that, by participating in a drug transaction, the individual was in essence an accomplice. The supreme court rejected the notion that the witness was an accomplice. Id. at 910(¶ 18). However, the court did observe that the witness had participated in the transaction in hopes of receiving lenient treatment on pending criminal charges and conceded that it was “true that the informant’s credibility was attacked.” Id. at 909(¶ 16). Nevertheless, the court noted that much of the information testified to by the witness was corroborated by other evidence, and the court further noted that, even in the case of an accomplice’s testimony, there is no absolute requirement for a cautionary instruction where corroborative evidence exists. Id. at 909-10(¶ 17).

¶ 8. Though the legal theory upon which a claim for a cautionary instruction in Jones was somewhat different than the one advanced by Denson, we conclude that the Jones decision stands for the proposition that a cautionary instruction is not absolutely required in every case involving the testimony of a cooperating individual, even when there is evidence of potential bias on the part of that witness in favor of the State; especially where the testimony of the witness finds corroboration in other evidence. In the case now before us, there was substantial evidence presented by the State, including an audiotape of the transaction, that corroborated much of the witness’s testimony, and we are satisfied that the court did not err when it refused the above-quoted instruction.

III.

Introduction of Audiotape and Transcription.

¶ 9. Denson complains that the trial court permitted the introduction into evidence of both the actual audiotape that the State contended was a recording of the relevant drug transaction as well as a written document purported to be a transcription of the tape. He contends that this had the effect of putting disproportionate emphasis on this particular aspect of the evidence and thereby improperly bolstering its evidentiary value. The trial court rejected that argument when Denson’s counsel objected to the introduction of the transcript, and Denson contends on appeal that this was reversible error.

¶ 10. This Court recently held that “transcripts to assist the jury in understanding taped conversations are permissible where the trial judge instructs the jury that the tape is the primary evidence and any conflicts should fall in favor of the recording.” Franks v. State, 749 So.2d 1241, 1243(¶ 7) (Miss.Ct.App.1999).

¶ 11. The trial court, in instructing the jury in this case, gave the following instruction:

The Court instructs the jury that the audiotape transcript is admitted for the limited and secondary purpose of aiding the jury in following the content of the conversation. Whether the transcript correctly or incorrectly reflects the content of the conversation is entirely for the jury to determine, and that if the jury should determine that the transcript was in any respect incorrect or unreliable, it should be disregarded to that extent.

¶ 12. We find that the trial court complied appropriately with the applicable law regarding the purpose for which a written transcription of an audiotape might be properly given to the jury and that the jury was correctly instructed as to the limited purpose of that transcript. There was, therefore, no error.

IV.

Weight of the Evidence

¶ 18. We have reviewed the evidence presented at trial in the light most favorable to upholding the jury’s verdict as we are required to do by applicable case law. Gleeton v. State, 716 So.2d 1083, 1087(¶ 14) (Miss.1998) (citing Wetz v. State, 503 So.2d 803, 808 (Miss.1987); Franklin v. State, 676 So.2d 287, 288 (Miss.1996)). The evidence supporting a verdict of guilty has been previously summarized in Part I of this opinion. Viewed in the light favorable to the prosecution’s theory of the case, we do not conclude that the verdict was so against the weight of the evidence that the trial court erred in denying Den-son’s new trial motion on that ground.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN YEARS SUSPENDED, FIVE YEARS OF SUPERVISED PROBATION AND RESTITUTION OF $5,000, SUSPENDED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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


text:
    Reginald Wayne CARTER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01564-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2003.

      Clarence Whitaker, Vicksburg, attorney for appellant.

      Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before McMILLIN, C.J., MYERS and GRIFFIS, JJ.
   McMILLIN, C.J., for the court.

¶ 1. Reginald Carter was indicted and tried for murder but was convicted of the lesser-included offense of manslaughter by a jury in the Circuit Court of Warren County. Hé has appealed his conviction and raises two issues which he contends warrant a reversal of his conviction. First, Carter claims that the evidence of his guilt was insufficient as a matter of law to support the jury’s guilty verdict. Secondly, he argues that he was prejudiced by the State’s failure to provide him with a copy of its proposed jury instructions twenty-four hours prior to trial in compliance with Uniform Rule of Circuit and County Court 3.0. He contends that, as a result of the late filing of instructions, he was denied a fundamentally fair trial. We find these contentions to be without merit and affirm the conviction and resulting judgment of sentence.

I.

Facts

¶ 2. On April 18, 2001, Carter, along with a number of other individuals, was involved in an incident at a barbecue cookout in Warren County. The incident began as a verbal confrontation between two women that escalated to a physical encounter. In the course of helping to break up that altercation, Carter took a handgun away from one of the women and put it in his pocket. From there, Carter’s brother became involved in a fight with the victim, James Turner. Finally, active hostilities ended temporarily and Carter, his brother, and their friends began entering their vehicle to leave. During that process, Turner was seen rummaging through the trunk of another vehicle. Some witnesses said he retrieved a screwdriver from the trunk and began approaching Carter as he was getting into his vehicle. There is some dispute as to exactly what transpired at that point, but the proof shows that ultimately Carter took the gun from his pocket and fired three shots at Turner. Turner died as a result of his wounds.

¶ 3. Carter did not deny firing the fatal shots, but claimed that he acted in necessary self-defense.

II.

Sufficiency of the Evidence

¶4. At the close of the proof, Carter requested that he be granted a directed verdict of acquittal. His contention was that he had presented evidence that made self-defense a legitimate issue in the case and that the State failed in its burden to show beyond a reasonable doubt that he was not acting in self-defense. The trial court denied the motion based on the conclusion that the proof of exactly what transpired was in dispute and that, thus, self-defense was an issue to be resolved by the jury. After the jury returned a verdict of guilty, Carter renewed his contention through a timely JNOV motion. The trial court denied this motion also. Carter contends on appeal that these rulings constitute reversible error. He argues, in essence, that the evidence that he was acting in self-defense was so persuasive and un-contradicted that a verdict of acquittal was the only one that a reasonable jury fairly assessing the evidence could return. Both of these motions raise a claim that the State’s evidence of guilt was insufficient as a matter of law to support the guilty verdict for manslaughter.

¶ 5. The State does, in fact, have the burden of proving as an element of the crime that the defendant was not acting in necessary self-defense. Heidel v. State, 587 So.2d 835, 843 (Miss.1991). That burden of proof does not shift to the defendant, requiring him to show beyond a reasonable doubt that he was acting in self-defense. Id. Rather, so long as the evidence, fairly considered, leaves the jury with a reasonable doubt as to whether the defendant was acting in necessary self-defense, the jury’s obligation under the law is to return a verdict of not guilty. Sloan v. State, 368 So.2d 228, 229 (Miss.1979). The trial court, in considering motions challenging the sufficiency of the State’s proof, must view the evidence in the light most favorable to the State, giving the prosecution the benefit of all favorable inferences which may be reasonably drawn from the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The court is obligated to reverse a conviction and render a judgment of acquittal when it determines that, viewed in that light, the State’s evidence as to one or more of the critical elements of the crime — in this case, more particularly, that the defendant was not acting in necessary self-defense based on a reasonable apprehension of immediate death or serious bodily injury — is so lacking that reasonable jurors could not have found appellant guilty. Id. If the trial court denies the motions and that denial is raised as an issue on appeal, this Court is charged to review the evidence by the same standard to determine whether the trial court erred in so ruling. Id. at 781. It is in that posture that we now consider Carter’s challenge to the legal sufficiency of the State’s evidence revolving around the issue of self-defense.

¶ 6. There was eyewitness testimony from some witnesses tending to indicate that the victim was rummaging in the trunk of a vehicle. According to one witness, he emerged with an unidentified object in his hand. Other witnesses testified that he had a screwdriver in his hand. Some witnesses indicated that the victim then charged Carter in a threatening manner. However, another witness testified that Carter drew the pistol, pointed it at the victim, made what could be construed as provocative or threatening remarks, and began walking toward the victim before firing three fatal shots.

¶ 7. Self-defense, in order to constitute a successful defense to a criminal prosecution of this nature, requires that the defendant act in response to an urgent actual threat or on a reasonable belief that such threat is actual and imminent. Wadford v. State, 385 So.2d 951, 955 (Miss.1980). Because the assessments of the level and imminence of the threat to the defendant’s physical well-being and the appropriateness of the defendant’s level of response to the perceived danger require interpretation and analysis of the peculiar set of facts presented in a particular case, it is well settled that the reasonableness of the defendant’s actions is normally a matter for the jury sitting as finders of fact. Meshell v. State, 506 So.2d 989, 991-92 (Miss.1987). While it may be true, as an abstract proposition, that there could be a case where the evidence of the gravity of the threat and the reasonableness of the defendant’s reaction to it was so persuasive that no reasonable juror could disregard that evidence, we do not conclude this to be that case.

¶ 8. Rather, the case appears to have been vigorously tried on the issue of self-defense, the jury was properly instructed on the law, and, insofar as the record shows, resolved this issue by concluding that Carter, beyond any reasonable doubt, was not acting in necessary self-defense when he purposely fired three gunshots at close range into his victim, causing his death.

¶ 9. The trial court did not err in declining to disturb this verdict based on the contention that the State’s evidence was insufficient as a matter of law to overcome Carter’s assertion that he was acting in self-defense. We, therefore, find this issue to be without merit.

III.

Jury Instructions

¶ 10. At the close of the presentation of the evidence, Carter for the first time raised the issue that he had not received proposed jury instructions from the prosecution sufficiently in advance of trial to comply with Uniform Rule of Circuit and County Court 3.07. That rule requires the filing of proposed instructions at least twenty-four hours prior to trial, and was plainly violated by the State since it did not serve proposed instructions on the defense until after both the prosecution and defense had rested.

¶ 11. The Mississippi Supreme Court has established that failing to explicitly follow the deadlines of Rule 3.07 does not automatically constitute reversible error, but that, instead, the defendant must show actual prejudice arising from the delayed service. Shaw v. State, 540 So.2d 26, 29 (Miss.1989). Carter attempts to meet this standard by claiming that his trial strategy was detrimentally affected by his lack of knowledge that the State intended to seek a lesser-included offense instruction on manslaughter.

¶ 12. While Carter may have been surprised by the State’s intention to ask for a manslaughter instruction, the law is plain that a defendant has no recognized right to block the prosecution in such effort:

We recognize in certain cases, as a matter of trial strategy, defense counsel may wish to have the case put to the jury on an all or nothing basis, the jury’s alternatives being to find the defendant guilty as charged in the indictment or acquitted. Our law, however, allows the prosecution to request and obtain lesser-included offense instructions, as it does the defense. The test for whether such an instruction should be granted is the same: is it warranted by the evidence? Where the answer is affirmative, the defendant has no right to complain of the circuit court’s submission to the jury of a properly phrased lesser-included offense instruction, either at the request of the prosecution or on its own motion.

Harveston v. State, 493 So.2d 365, 375 (Miss.1986).

¶ 13. Carter’s only legitimate defense at trial was his assertion that he was acting in self-defense when he purposely shot and killed his victim. He made no argument to the trial court nor does he, in his brief to this Court, set out what other possible alternative theories of defense he might have raised had he known that the State intended to ask for a manslaughter instruction. Absent any such showing, and based on the observation that the theory of self-defense on the facts of this case would appear to be substantially identical whether the jury was deliberating a charge of murder or of manslaughter, we do not conclude that Carter has made the necessary showing of prejudice to his defense arising from the State’s failure to file its proposed instructions in a more timely manner.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS, FIFTEEN YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FIVE YEARS POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

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


author: MCMILLIN, C.J., for the court.

text:
    Larry COLLINS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00459-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2003.

      Carrie A. Jourdan, Columbus, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MCMILLIN, C.J., MYERS and GRIFFIS, JJ.
   MCMILLIN, C.J., for the court.

¶ 1. Larry Collins was convicted of the crimes of rape and armed robbery arising out of an incident that occurred at Lake Lowndes campground in Lowndes County. On appeal, Collins asserts two issues for consideration. First, he contends that the State’s evidence implicating him in the crimes was insufficient as a matter of law to sustain the verdicts of guilty returned by the jury. Alternatively, he contends that the guilty verdicts were against the weight of the evidence to the degree that he should be granted a new trial.

¶ 2. We find both issues to be proeedurally barred from consideration on appeal and, for that reason, affirm the verdicts of guilty and the resulting judgment of sentence.

¶ 3. At the conclusion of the State’s proof, Collins moved for a directed verdict of acquittal on the basis that the prosecution had failed as a matter of law to present evidence of all of the essential elements of the crimes for which he was being tried. The trial court denied the motion and the defense proceeded to call one witness for the defense. At the conclusion of that witness’s testimony, the defense rested. Collins’s motion for a directed verdict of acquittal was not renewed.

¶ 4. It is a long-established rule in Mississippi that if a defendant tests the sufficiency of the State’s evidence by way of a motion for directed verdict of acquittal after the prosecution has rested and that motion is unsuccessful, the defendant is deemed to have waived a claim of error based on that denial if he proceeds to put on evidence in defense and then fails to renew the motion at the close of all the evidence. Turner v. State, 721 So.2d 642, 647(¶ 16) (Miss.1998). Collins’s failure to renew his motion or to present the issue to the trial court in a motion for judgment notwithstanding the verdict acts as a procedural bar to our consideration of this issue on appeal.

¶ 5. Essentially the same considerations hold true in regard to Collins’s alternate contention that the verdict was against the weight of the evidence, entitling him to a new trial. An appellate court’s purpose is to deal with errors committed by the trial court in the course of conducting a trial. Collins v. State, 173 Miss. 179, 159 So. 865 (1935). An appellate court does not, as a general rule subject to some limited exceptions, consider allegations of improprieties in the conduct of the trial that were not properly raised with the trial court at the appropriate juncture. A claim that the verdict was against the weight of the evidence must be first presented to the trial court since that court is best positioned to make an informed decision as to such issue, having had the benefit of hearing the evidence first-hand. McClain v. State, 625 So.2d 774, 781 (Miss.1993). An appellate court’s role as to such a contention is limited to deciding whether the trial court, in denying a new trial motion, has abused the discretion afforded to that court in making such a determination. Id. If the trial court is not permitted that opportunity through the timely filing of a post-verdict motion for new trial, there is no opportunity for the trial court to commit the error that must necessarily precede the intervention of the appellate court. Collier v. State, 811 So.2d 377, 378-79(¶ 5) (Miss.Ct.App.2001).

¶ 6. Because there was no motion for new trial filed in this cause, there is no error by the trial court regarding its evaluation of the evidence for this Court to review under the applicable abuse of discretion standard. Collins’s second contention is procedurally barred.

¶ 7. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF CONVICTION ON COUNT I OF RAPE AND SENTENCE OF LIFE AND ON COUNT II OF ARMED ROBBERY AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH SENTENCES TO RUN CONSECUTIVELY AND SHALL NOT BE REDUCED OR SUSPENDED AND DEFENDANT SHALL NOT BE ELIGIBLE FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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


author: McMILLIN, C. J., for the court.

text:
    Johnny Gene CROSBY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01294-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2003.

      Johnny Crosby, Appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before McMILLIN, C.J., MYERS and GRIFFIS, JJ.
   McMILLIN, C. J., for the court.

¶ 1. In this case, the Court deals with yet another permutation of a recurring problem arising when the circuit court, upon sentencing a defendant having a pri- or felony conviction, nevertheless proceeds to suspend all or some part of the mandated period of incarceration.

¶ 2. Johnny Crosby pleaded guilty on July 19, 2001, to an indictment for the sale of cocaine. He was sentenced to ten years in the custody of the Mississippi Department of Corrections; however, the judgment of sentence directed that Crosby serve only the first five years of the sentence and that the final five years be suspended and the defendant be placed on supervised probation for that period.

¶ 3. In a post-conviction relief motion, Crosby sought to have the portion of his sentence calling for five years of supervised probation following his release from confinement removed from the sentence. He contended that because he had been convicted of a prior felony-a fact disclosed to the trial court in his petition to enter a guilty plea-any action purporting to suspend some portion of his confinement period was illegal under the provisions of Section 47-7-33(1) of the Mississippi Code. In relevant part, that code section prohibits the suspension of a sentence “where the defendant has been convicted of a felony on a previous occasion....” Miss.Code Ann. § 47-7-33(1) (Rev.2000).

¶ 4. The trial court denied Crosby any relief on his motion and Crosby perfected an appeal of that ruling to this Court. We affirm.

¶ 5. In Clark v. State, 2002-CP-00855-COA, 858 So.2d 882, 2003 WL 21961968 (Miss.Ct.App.Aug.19, 2003), this Court considered a contention that an offer of a partially-suspended sentence in exchange for a guilty plea given to a defendant who had earlier pled guilty to another felony was an illegal sentence based on his ineligibility under Section 47-7-33(1). This Court, based on its interpretation of Robinson v. State, 836 So.2d 747 (Miss.2002), said “under Robinson we find that if as a result of a plea bargain a prior felon voluntarily accepts an offered suspended sentence and some form of probation, that this becomes by agreement an enforceable sentence.” Clark, 2002-CP-00855-COA at ¶ 18, 858 So.2d at 886. While our decision in Clark v. State has not become final as of the entry of this opinion, we, nevertheless are of the view that, at this time, the decision accurately reflects the applicable law of this state and it is in that sense that we quote it here.

¶ 6. We can find no reasoned basis to distinguish the circumstances of this case from those in Clark and we, therefore, conclude that Crosby’s sentence as entered is enforceable.

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

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


author: BRIDGES, J., for the Court.

text:
    Matthew J. RODOLFICH, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01135-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2003.

      Matthew J. Rodolfich, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   BRIDGES, J., for the Court.

¶ 1. Matthew Rodolfich pleaded guilty to felony driving under the influence (DUI), his third offense. He was sentenced to serve five years, but his sentence was suspended and he was ordered to serve two years’ probation. After confessing to violating the conditions of his probation, Ro-dolfich was ordered to serve his five year term. He filed two post-conviction relief motions primarily claiming he did not understand what sentence he would receive when he pled guilty. Both were denied and from these decisions, Rodolfich, pro se, appeals to this Court.

ISSUES

I. WHETHER RODOLFICH KNOWINGLY AND VOLUNTARILY ENTERED HIS GUILTY PLEA.

II. DID RODOLFICH HAVE EFFECTIVE ASSISTANCE OF COUNSEL?

FACTS

¶ 2. Matthew Rodolfich was indicted on March 3,1998, for felony driving under the influence (Count I) and operating a motor vehicle with BAC (blood alcohol content) of .10% or more (Count II). On September 8, 1998, Rodolfich pleaded guilty to felony DUI. He admitted to driving after consuming at least six drinks at Sneaky Pete’s lounge in Harrison County. This was his third offense. The next day, he pleaded guilty to Count II. He signed his plea under the trustworthiness of an official oath. This plea stated that the sentence had a minimum of zero years and a maximum of five years. It also stated that if his probation was revoked, any sentence in that case may be consecutive to or in addition to any sentence in the case he pleaded to. Additionally, it stated that Rodolfich was satisfied with his attorney.

¶ 3. On November 17, 1998, Rodolfich was sentenced on Count II to serve five years in the custody of the Mississippi Department of Corrections for felony DUI, third offense. His sentence was then suspended and he was placed on probation for two years. Rodolfich violated his probation two times, but his probation was not revoked despite these violations. After his third probation violation, Rodolfich’s probation was revoked on September 11, 2000. He was ordered to begin serving his five year term. Rodolfich filed his motion for post-conviction collateral relief on January 10, 2001. He claimed that his guilty plea was involuntary because he was confused about his sentence. He insisted, based on his attorney’s advice, that he would receive only a two year sentence. On March 25, 2002, Judge Simpson of Harrison County denied this motion without the benefit of an evidentiary hearing. The judge found that Rodolfich was correctly informed as to the possible sentence to which he could be subjected.

¶ 4. On June 13, 2002, Rodolfich filed a second motion for post-conviction relief. It was also denied without the benefit of an evidentiary hearing. The judge found that it was a successive writ and therefore procedurally barred. Judge Simpson also found that it was frivolous on its face. From these decisions, Rodolfich appeals to this Court.

ANALYSIS

I. WHETHER THE TRIAL COURT WAS CORRECT IN DENYING RODOL-FICH’S MOTION FOR POST-CONVICTION RELIEF WITHOUT AN EVI-DENTIARY HEARING.

¶ 5. Rodolfich’s motion before this Court consists of reproduced pages from the official record. He does not clearly specify the issues he wishes to raise with this Court, but it is apparent that Rodolfich claims his sentence was unfair because he did not realize he could receive the maximum of five years at the time he pleaded guilty. This is the evaluation that the trial court used to deny his motions for post-conviction relief. Rodolfich asserts that he was not properly advised of the minimum and maximum sentence for his crime. Rodolfich also claims that he was further confused at the sentencing because four or five other persons were sentenced at the same time.

¶ 6. The trial court evaluated Ro-dolfich’s claims and found them to be without merit. In reviewing a trial court’s decision to deny a motion for post-conviction relief, the standard of review is clear. The trial court’s denial will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Kirksey v. State, 728 So.2d 565, 567(¶ 8) (Miss.1999); Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002).

¶ 7. Rodolfich claims that he did not understand the sentence he would be given when he entered his guilty plea, therefore his guilty plea was not voluntary. The United States Supreme Court case of Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), provides the standard for determining whether a guilty plea is knowingly, voluntarily and intelligently made by the defendant. This determination of voluntariness may be evaluated by looking to see whether the defendant was advised of the nature of the charges against him, the rights which he would be waiving by pleading guilty, the maximum sentences that he could receive for the crimes with which he was charged and whether he was satisfied with the advice and counsel of his attorney. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). See also Boykin, 395 U.S. at 243, 89 S.Ct. 1709; Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991).

¶ 8. Solemn declarations made in open court under the trustworthiness of the official oath carry a strong presumption of verity. Baker v. State, 358 So.2d 401, 403 (Miss.1978). Not every motion for post-conviction relief filed in the trial court must be given an adversarial hearing. Jones v. State, 795 So.2d 589, 590(¶ 3) (Miss.2001). When a defendant’s allegations in a motion for post-conviction relief are complete contradictions of the sworn testimony before the judge at the time of the guilty plea, there is no need for an evidentiary hearing. Taylor v. State, 682 So.2d 359, 364 (Miss.1996).

¶ 9. In this case, there is sufficient evidence in the record by which to determine that Rodolfich understood the consequences of entering a plea of guilty, including the range of the possible sentence to be imposed and the constitutional rights he was giving up. The judge did not need to have an evidentiary hearing for this motion, because there was enough evidence in the record to support its denial. More importantly, Rodolfich presented no evidence to the contrary. Furthermore, as in Taylor, the post-conviction relief motion in this case is a complete contradiction of the statements Rodolfich signed under oath at the time of his guilty plea.

¶ 10. Rodolfich signed under oath a “Petition to Enter a Plea of Guilty.” It reads in part:

I know that if I plead “Guilty” to this charge (these charges), the possible sentence in Count 1 is 0(min) to 5 yrs (max) imprisonment and/or fine in Count 1 $200 (min) to 5,000 (max).

The record further demonstrates that Ro-dolfich knew that if his probation was revoked, he could be ordered to serve his prison term. Rodolfich also signed a statement saying that he was satisfied with the advice and help of his attorney.

¶ 11. Even though others were present at the time he received his sentence, Ro-dolfich was informed of the implications of his guilty plea. As is required by Boykin, the consequences of entering and signing the guilty plea were clearly explained in writing. Rodolfich was fairly and adequately informed of all these things when he signed the plea. Additionally, his lawyer signed a statement which further demonstrates that Rodolfich was informed of the consequences resulting from his guilty plea. This statement certifies that his lawyer explained to Rodolfich the allegations included in the indictment and the possible penalties for the crime. It further states that, based on her knowledge of the client, Rodolfich’s guilty plea was made voluntarily and understandingly. Rodolfich clearly knew the nature of the charges against him, the rights he was waiving, and the maximum sentence he could receive.

¶ 12. The statements Rodolfich signed under oath clearly reflect that Rodolfich was made aware of and understood the possible sentence he would receive. He cannot overcome the presumption of veracity by claiming three years after the plea was entered that he did not understand what he was doing. This is not enough evidence to support Rodolfich’s burden of overcoming the presumption of Baker. In fact, Rodolfich never complained about his comprehension of the consequences of his guilty plea until, after violating his probation three times, he was ordered to complete his sentence in jail. Rodolfich’s arguments are without merit. The trial court’s denial of his post-conviction relief was not clearly erroneous and its decision will be affirmed.

II. DID RODOLFICH HAVE EFFECTIVE ASSISTANCE OF COUNSEL.

¶ 13. Rodolfich also claims that he did not have effective assistance of counsel. He argues that his lawyer told him that he would receive a two year sentence and that is the reason he pleaded guilty. He claims that his lawyer did not make him aware of the possibility of serving five years. When evaluating claims of ineffective assistance of counsel, this Court applies the standard set out in Strickland v. Washington, 466 U.S. 668, 680, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under this standard, the claimant must show (1) that counsel’s performance was deficient and (2) that the deficient performance was prejudicial to the defendant in the sense that it undermined confidence in the outcome. Wilson v. State, 577 So.2d 394, 396 (Miss.1991). In regards to this second prong, Rodolfich must show that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Where a defendant enters a plea on advice of counsel, the attorney’s performance is deemed “deficient” for purposes of the Strickland standard if it falls below “the range of competence demanded of attorneys in criminal cases.” Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), quoted in Wilson, 577 So.2d at 396. A defendant who pleads guilty to a crime is “prejudiced” by his counsel’s erroneous advice if “he would have insisted on going to trial if he had been correctly informed.” Wilson, 577 So.2d at 396.

¶ 14. Rodolfich’s mere allegation that his lawyer was ineffective is not enough evidence to demonstrate that her performance was deficient under Strickland. Furthermore, the record clearly demonstrates that his lawyer did in fact give her client adequate advice and assistance. She signed the form stating that she had advised Rodolfich of the rights he was giving up and the possibility of receiving a five year sentence. In addition to this, Rodol-fich agreed at the time of his plea he was satisfied with her performance. Also, Ro-dolfich has not established that he would have gone to trial if he had been correctly informed. The record shows that he was indeed correctly informed. The trial court’s denial of his motion post-conviction relief was not clearly erroneous and its decision will be affirmed.

¶ 15. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT DISMISSING MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

KING AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. McMILLIN, C.J., CONCURS IN RESULT ONLY.


author: BROWN, Justice. MOORE, Chief Justice JOHNSTONE, Justice

text:
    Debra LYLES and Derrick Lyles v. PIONEER HOUSING SYSTEMS, INC.
    1010908.
    Supreme Court of Alabama.
    March 14, 2003.

      James G. Bodin and G. William Gill of McPhillips, Shinbaum & Gill, L.L.P., Montgomery, for appellants.
    David L. Selby II, Kyle C. Barrentine, and Olivia S. Matuszak of Kee & Selby, L.L.P., Birmingham, for appellee.
   BROWN, Justice.

Debra and Derrick Lyles, plaintiffs in an action pending in the Elmore Circuit Court, appeal from that court’s order compelling them to arbitrate their claims against the defendant, Pioneer Housing Systems, Inc. (“Pioneer”). We affirm in part, reverse in part, and remand.

Facts and Procedural History

On October 14, 1999, Debra Lyles and Derrick Lyles bought a new mobile home from a dealer located in Clanton. The home was manufactured by Pioneer. After the mobile home was delivered to the Lyleses in Wetumpka, they began to experience various problems with the home. On January 12, 2001, the Lyleses sued Pioneer, alleging breach of contract, breach of implied and express warranties, violation of the Magnuson-Moss Warranty — Federal Trade Commission Improvement Act, negligence, and fraud.

On March 2, 2001, Pioneer filed a motion to compel the Lyleses to submit all of their claims against Pioneer to arbitration. In support of the motion to compel, Pioneer submitted a copy of a written warranty, a copy of an unsigned arbitration agreement, and an affidavit of Parker Holloway, Pioneer’s director of service. On May 7, 2001, the Lyleses voluntarily dismissed their breaeh-of-express-warranty claim against Pioneer. After a hearing on Pioneer’s motion to compel arbitration, the court granted that motion on October 9, 2001. On October 12, 2001, the Lyleses voluntarily dismissed their Magnuson-Moss Act claim against Pioneer. On December 21, 2001, Pioneer filed a notice, purporting to consent to the voluntary dismissal of the express-warranty and Magnuson-Moss Act claims. The Lyleses filed a motion to vacate the order compelling arbitration, and the trial court scheduled a hearing. When the Lyleses and their counsel failed to appear at the hearing because of scheduling conflicts, the trial court denied the motion to vacate on December 21, 2001. On January 31, 2002, the Lyleses filed a notice of appeal with this Court.

Standard of Review

We review de novo a trial court’s ruling on a motion to compel arbitration to determine whether the trial judge erred in deciding a factual or legal issue, and, if so, whether the error substantially prejudiced the party seeking review. See Potts v. Baptist Health Sys., Inc., 853 So.2d 194, 196-97 (Ala.2002).

“The burden of proof on the party seeking to compel arbitration is well established. ‘A motion to compel arbitration is analogous to a motion for a summary judgment.’ Ex parte Caver, 742 So.2d 168, 172 n. 4 (Ala.1999). ‘The party seeking to compel arbitration has the initial burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction substantially affecting interstate commerce.’ American Gen. Fin., Inc. v. Morton, 812 So.2d 282, 284-85 (Ala.2001) (plurality opinion). See Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000). ‘If the party seeking to enforce the arbitration agreement fails to make such a showing, then the opposing party has no burden of resisting arbitration and the motion should be denied.’ Brown v. Dewitt, Inc., 808 So.2d 11, 14 (Ala.2001).”

Brookfield Constr. Co. v. Van Wezel, 841 So.2d 220, 221 (Ala.2002)(footnote omitted).

Analysis

I.

The Lyleses argue that the trial court erroneously compelled them to arbitrate their claims against Pioneer because, they maintain, they never entered into a written contract calling for arbitration. Pioneer responds by asserting that the Lyleses, by accepting benefits under Pioneer’s written warranty, agreed to arbitrate their claims against Pioneer. The warranty contains the following provision: “Warranty disputes will be settled under the Rules of Arbitration, unless prohibited by state law.” Specifically, Pioneer contends that the Lyleses accepted the benefits of the written warranty by alleging in their complaint a breach-of-express-warranty claim and a Magnuson-Moss Act claim. The Lyleses respond that because they voluntarily dismissed both of those claims, there is no evidence in the record indicating that they received the written warranty from Pioneer or that they claimed benefits under the written warranty.

The dispositive issue is whether the Lyleses availed themselves of the benefits of Pioneer’s written warranty, thus manifesting their agreement to the arbitration provision contained in it.

‘““[Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” ’ AT & T Techns., Inc. v. Communication[s] Workers of America, 475 U.S. 643, 648 (1986)(quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960)); and see Ex parte Lovejoy, 790 So.2d 933 (Ala.2000). ‘ “When deciding whether parties agree to arbitrate a certain matter (including arbitrability) courts generally ... should apply ordinary state-law principles that govern the formation of contracts.” ’ Oakwood Mobile Homes, Inc. v. Barger, 773 So.2d 454, 459 (Ala. 2000) (quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). ‘ “The requisite elements of [a contract] include: an offer and an acceptance, consideration, and mutual assent to terms essential to the formation of a contract.” ’ Ex parte Grant, 711 So.2d 464, 465 (Ala.1997) (quoting Strength v. Alabama Dep’t of Finance, Div. of Risk Mgmt., 622 So.2d 1283, 1289 (Ala.1993)). ‘Assent must be manifested by something. Ordinarily, it is manifested by a signature. [However], [a]ssent may be manifested by ratification.’ Southern Energy Homes, Inc. v. Hennis, 776 So.2d 105, 108 (Ala.2000) (citing Southern Energy Homes, Inc. v. Harcus, 754 So.2d 622, 625 (Ala.1999)), wherein this Court remanded the case to the trial court for a finding of whether the purchasers of a manufactured home ratified and thereby accepted an arbitration provision by accepting repairs pursuant to a warranty containing the arbitration provision.”

Ex parte Cain, 838 So.2d 1020, 1027-28 (Ala.2002).

Furthermore, assent to a contract may be manifested when a plaintiff accepts the benefits of a contract:

“It is well established ... that ‘[a] plaintiff cannot simultaneously claim the benefits of a contract and repudiate its burdens and conditions.’ Southern Energy Homes, Inc. v. Ard, 772 So.2d 1131, 1134 (Ala.2000); see Ex parte Stamey, 776 So.2d 85 (Ala.2000); Infiniti of Mobile, Inc. v. Office, 727 So.2d 42 (Ala.1999); Ex parte Dyess, 709 So.2d 447, 451 (Ala.1997); Ex parte Warren, 718 So.2d 45, 47-48 (Ala.1998) (the Court, in a plurality opinion, stated that one who asserts that she is not a party to a contract in order to avoid arbitration ‘diselaim[s] any basis for recovery on her claims’ under the contract); see also Southern Energy Homes, Inc. v. Hennis, 776 So.2d 105, 108 (Ala.2000) (mobile-home buyer could not ‘pursue his breach-of-express-warranty claim’ and ‘at the same time, disavow the arbitration provision contained [in the written warranty]’); Southern Energy Homes, Inc. v. Kennedy, 774 So.2d 540, 547 (Ala.2000) (plaintiffs were ‘foreclosed from maintaining any claim they may have had against Southern Energy for its alleged breach of the express written warranty’ the plaintiffs swore by affidavit they never received); Delta Constr. Corp. v. Gooden, 714 So.2d 975, 981 (Ala.1998).”

Ballard Servs., Inc. v. Conner, 807 So.2d 519, 523 (Ala.2001).

In Southern Energy Homes, Inc. v. Ard, 772 So.2d 1131 (Ala.2000), Michael Ard and Marsha Ard purchased a home manufactured by Southern Energy Homes, Inc. After experiencing various problems with the' manufactured home, the Ards sued Southern Energy alleging, among other things, a breach-of-express-warranty claim and a violation of the Magnuson-Moss Act. When Southern Energy moved the trial court to compel arbitration based on an arbitration agreement contained in its express warranty, the Ards argued that they had never entered into a written agreement to arbitrate. The trial court denied Southern Energy’s motion to compel arbitration.

This Court reversed the trial court’s order denying Southern Energy’s motion to compel arbitration, noting, among other things, that the Ards had sued Southern Energy on an express-warranty theory. The only warranty contained in the record was Southern Energy’s express warranty, which included an arbitration provision. This Court held that the Ards could not claim the benefits of the express warranty by alleging that Southern Energy was bound to the promises contained therein, and simultaneously repudiate the warranty’s “burdens and conditions” by arguing that they should not be bound by the arbitration provision. Thus, we found that the Ards had manifested an acceptance of the warranty and its arbitration provision and that they could be compelled to arbitrate their claims against Southern Energy. Id. at 1134.

We begin our analysis of the facts of this case by noting that our review of the trial court’s order, similar to our review of a summary judgment, is limited to the pleadings and evidence that were before the trial court at the time it made its ruling. See Ryan’s Family Steak Houses, Inc. v. Regelin, 735 So.2d 454, 457 n. 1 (Ala.1999); see also Cowen v. M.S. Enters., Inc., 642 So.2d 453, 454 (Ala.l994)(citing King v. Garrett, 613 So.2d 1283 (Ala.1993); Moody v. Hinton, 603 So.2d 912 (Ala. 1992)). Although the Lyleses voluntarily dismissed their express-warranty claim before the trial court ruled on Pioneer’s motion to compel arbitration, they did not voluntarily dismiss their Magnuson-Moss Act claim until after the trial court had issued its order compelling arbitration. Thus, when the trial court entered its ruling on the motion to compel arbitration the Lyleses’ Magnuson-Moss Act claim was still pending.

In their complaint, the Lyleses made the following allegations in support of their Magnuson-Moss Act claim against Pioneer:

“Count Nine: Violation of Magnuson-Moss Warranty Act:
“37. [Pioneer] failed to perform under its written warranties and complete repairs to the [Lyleses’] mobile home as guaranteed in the express warranties. [Pioneer] failed in its efforts to properly repair defects in the mobile home in violation of 15 U.S.C. 2301 et seq.
“38. [The Lyleses] timely advised [Pioneer] of defects in their mobile home on numerous occasions and afforded [Pioneer] reasonable opportunity to comply with [its] warranties and complete repairs.
“39. As a proximate result, [the Lyleses] were caused damages including but not limited to, actual and consequential damages; attorneys’ fees, inconvenience, annoyance and mental anguish.”

The only express or written warranty in the record is Pioneer’s express warranty, which contains the arbitration provision quoted above. Like the Ards, the Lyleses purported to claim the benefits of Pioneer’s express warranty by alleging that Pioneer should be bound to perform its duties under the warranty, while simultaneously repudiating the condition contained in the warranty that warranty disputes would be settled by arbitration. Because the Lyleses manifested assent to Pioneer’s written express warranty by availing themselves of its benefits, the trial court correctly held them to the conditions of the warranty by compelling arbitration as to the warranty disputes, as the arbitration provision found in the warranty stipulated.

II.

The Lyleses argue that the trial court erroneously compelled them to arbitrate because the language in the written warranty calls for arbitration of warranty disputes “unless prohibited by state law.” The Lyleses contend that because § 8-1-41(8), Ala.Code 1975, prohibits the enforcement of predispute arbitration contracts, state law prohibits the enforcement of the arbitration provision in the warranty.

The Lyleses’ argument as to this issue is similar to the plaintiffs’ argument in Beaver Construction Co. v. Lakehouse, L.L.C., 742 So.2d 159 (Ala.1999). In Beaver, the plaintiffs argued on appeal that they could not be compelled to arbitrate their claims against the defendants because the contract containing the controlling arbitration clause stated that “[t]he Contract shall be governed by the law of the place where the Project is located.” The plaintiffs reasoned that because the project was located in Alabama and because Alabama law prohibits the enforcement of predispute arbitration contracts, the contract containing the arbitration clause could not be enforced. This Court held, however, that “the law in Alabama is that agreements to arbitrate are enforceable if they are part of a valid contract involving interstate commerce.” 742 So.2d at 163 (citing Georgia Power Co. v. Partin, 727 So.2d 2, 5 (Ala.1998)).

Furthermore, this Court in Beaver addressed the plaintiffs’ contention that another paragraph in the contract negated the arbitration provision:

“[T]he plaintiffs essentially argue that the parties included ¶¶ 4.5.1 to .7, which set forth in detail specific procedures to be followed in arbitration, only to negate in lS.i.,1 those very provisions. We cannot construe the Construction Contract in such a manner.
“ ‘A court in construing contracts, which on their face are ambiguous, will look to the intention of the parties.’ Charles H. McCauley Assocs., Inc. v. Snook, 339 So.2d 1011, 1015 (Ala.1976). ‘Courts cannot make contracts for parties, but must give such contracts as are made a reasonable construction and enforce them accordingly.’ Id. This is so, because ‘“it is presumed that parties intend to make reasonable contracts.” ’ Ex parte Bonds, 581 So.2d 484, 487 (Ala.1991) (quoting Weathers v. Weathers, 508 So.2d 272, 274 (Ala.Civ.App.1987)).
“To be sure, the parties might — in any dispute — agree to litigate, and, in so doing, waive the right to compel arbitration. However, the same result would obtain in the absence of a contract, or if the contract was silent on the question of arbitration. Because the Construction Contract is not silent, the parties must have intended to limit the forum for redress.”

Beaver Constr. Co., 742 So.2d at 164.

Thus, the law in Alabama is that a predispute arbitration agreement is enforceable if the agreement is included in a valid contract involving interstate commerce — an issue the parties in this case do not dispute. Giving the warranty a reasonable construction, we must conclude that the parties intended to limit the forum for redress because the warranty was “not silent” on the question of arbitration. Id. Otherwise, Pioneer could have merely omitted the provision. Alabama law does not prohibit the enforcement of the arbitration provision in this case. Therefore, the trial court did not err in compelling the Lyleses to arbitrate their warranty disputes based on the arbitration provision in the warranty.

III.

Finally, the Lyleses argue that even if they must arbitrate their claims, the trial court erred in requiring them to submit all of their claims against Pioneer to arbitration. Specifically, the Lyleses claim that the warranty only requires that “warranty disputes” be submitted to arbitration. We agree.

In its motion to compel arbitration, Pioneer relied upon broadly drafted language contained in a separate, unsigned arbitration agreement that required arbitration of “all disputes, claims, or controversies of any kind or nature,” to support its argument that all of the Lyleses’ claims should be submitted to arbitration. Parker Holloway, Pioneer’s director of service, testified in his affidavit that a copy of the separate arbitration agreement, along with the written warranty, was enclosed in a homeowner’s manual that was delivered with the Lyleses’ mobile home. The Lyleses, on the other hand, testified in their depositions that when their home was delivered, they did not receive a homeowner’s manual. In fact, the Lyleses maintain that they did not receive the homeowner’s manual until shortly before they filed this action.

This Court has held that a manufacturer’s “ ‘unilateral enclosure of an arbitration provision in a homeowner’s manual is— without more — insufficient as a matter of law to show that [the homeowner] assented to all the contents therein.’ ” Ex parte Cain, 838 So.2d at 1027 (quoting Southern Energy Homes v. Hennis, 776 So.2d 105, 108-09 (Ala.2000)). Pioneer has faded to demonstrate that the Lyleses assented in any way to the unsigned arbitration agreement. In addition to requiring that “all disputes, claims, or controversies of any kind or nature” be submitted to arbitration, the unsigned arbitration agreement further provides, just above the signature lines: “MY SIGNATURE BELOW ATTESTS TO THE FACT THAT I HAVE READ THE ABOVE TERMS, THAT I UNDERSTAND THE NATURE AND TERMS OF THIS AGREEMENT, AND THAT I VOLUNTARILY AND OF MY OWN FREE WILL AGREE TO BE LEGALLY BOUND TO ALL OF THE ABOVE TERMS.” (Capitalization in original.) It is undisputed that although the arbitration agreement in the record contains signature lines, neither the Lyleses nor any representatives of Pioneer ever signed it. Furthermore, the arbitration agreement does not refer in any way to Pioneer’s written warranty, and the written warranty does not refer to the separate arbitration agreement.

Pioneer does not explain how the Lyles-es assented to the terms of the unsigned arbitration agreement; instead, it merely claims that the agreement was included in a homeowner’s manual that was delivered with the Lyleses’ home. Pioneer’s allegation that it included an arbitration agreement in a homeowner’s manual allegedly delivered to the Lyleses with the mobile home is insufficient to prove that the Lyleses agreed to arbitrate all of their claims. Because Pioneer has failed to demonstrate that the Lyleses assented to the unsigned arbitration agreement, the trial court erred in compelling arbitration pursuant to the terms of that agreement. The only arbitration agreement to which the Lyleses assented is Pioneer’s written warranty, which requires only that “warranty disputes” shall be submitted to arbitration. Therefore, we reverse the trial court’s order insofar as it compelled the Lyleses to submit anything other than “warranty disputes” to arbitration.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

HOUSTON, SEE, HARWOOD, and STUART, JJ., concur.

LYONS and WOODALL, JJ., concur in the result.

MOORE, C.J., and JOHNSTONE, J., concur in part and dissent in part.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I concur with the Court’s reversal of the trial court’s order insofar as the order compels arbitration as to any claims that do not involve “warranty disputes.” I dissent, however, from the Court’s affirmance of the trial court’s order insofar as it compels arbitration of “warranty disputes.”

The arbitration provision specifically states that “[wjarranty disputes will be settled under the Rules of Arbitration, unless prohibited by state law” (emphasis added). The plain reading of this provision is that where state law prohibits the settling of disputes by arbitration, the arbitration provision is not enforceable. Alabama law prohibits specific performance of a predispute arbitration provision, see § 8-1-41(3), Ala.Code 1975; therefore, the arbitration provision in this case is not enforceable. I take issue with the Court’s use of the Federal Arbitration Act, 9 U.S.C. § 2, to skirt this plain language for the reasons stated at length in my dissent in Selma Medical Center, Inc. v. Fontenot, 824 So.2d 668 (Ala.2001). None of the Lyleses’ claims should be submitted to arbitration.

JOHNSTONE, Justice

(concurring in part and dissenting in part).

I concur insofar as the main opinion reverses the order of the trial court granting the motion to compel arbitration. I respectfully dissent insofar as the main opinion affirms the order of the trial court.

Pioneer’s claim to a right to arbitrate is expressly limited by the contract language, “unless prohibited by state law.” Alabama state law prohibits the specific enforcement of pre-dispute arbitration agreements, § 8 — 1—41(8), Ala.Code 1975. The law to the contrary is federal law, as recognized by the Alabama courts. By agreeing to the language, “unless prohibited by State Law,” Pioneer waived the supremacy of the federal law in this transaction.

      . The parties dispute whether the Lyleses requested that Pioneer make repairs to the home during this time.

      . Rule 41(a) and (b), Ala. R. Civ. P., provides that a plaintiff may move for the voluntary dismissal of a claim at any time before service by the adverse party of an answer or a motion for a summary judgment, whichever occurs first. See Hamilton v. Shearson-Lehman American Express, Inc., 813 F.2d 1532, 1535 (9th Cir.l987)(holding that "[a] motion to compel arbitration and stay proceedings is not the equivalent of an answer or a motion for summary judgment,” for the purposes of Rule 41, Fed.R.Civ.P.); Merit Ins. Co. v. Leatherby Ins. Co., 581 F.2d 137 (7th Cir.1978)(same).

      . The same sentence — "Warranty disputes shall be settled under the Rules of Arbitration, unless prohibited by State Law” — also appears on a postcard contained in the record. The postcard contains the Lyleses’ signatures; the serial number, brand, and model of the Lyleses' mobile home; and the Lyleses’ address. However, there is absolutely no testimony or other evidence in the record explaining the purpose of this postcard, and the purpose of the card is not readily apparent from its face. There is also no evidence as to when the card was signed or as to the circumstances surrounding the execution of the card. Therefore, although both parties make arguments concerning the postcard, there is no evidence in the record from which to make any determinations concerning its significance.