text:
    Todd Randall TROWER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00799-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2003.
    Rehearing Denied March 16, 2004.
    Ross. Parker Simons, attorney for appellant.
    Office of the. Attorney General by Charles W. Maris, attorney for appellee.
    ’ Before KING, P.J., BRIDGES, LEE, and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

. ¶ 1. Todd Randall Trower was indicted for the crimes of capital rape, burglary of a dwelling and kidnaping. On July 26, 2001, guilty verdicts were, returned by the jury on each count in the indictment. Trower was sentenced, to the Mississippi Department of Corrections for a period of twenty-five years for capital rape, twenty-five years for burglary of a dwelling and life imprisonment for the kidnaping charge. Feeling aggrieved, Trower -appeals the following errors:.

I. THE TRIAL COURT ERRED WHEN IT REFUSED TO INSTRUCT THE JURY REGARDING CIRCUMSTANTIAL EVIDENCE.
II. THE TRIAL COURT ERRED BY ALLOWING THE INTRODUCTION OF A PIECE OF DUCT TAPE DESPITE NO SHOWING OF RELEVANCE WAS EVER MADE BY THE STATE AND THE COURT FAILED TO MAKE A BALANCING TEST UNDER RULE 403.
III. THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
IV. PROSECUTORIAL MISCONDUCT RESULTED IN THE DENIAL OF THE DEFENDANT’S FUNDAMENTAL RIGHT TO A FAIR TRIAL
V. THE CUMULATIVE EFFECT OF THE ERRORS REQUIRE REVERSAL OF THE VERDICT.

¶ 2. Finding merit in Trower’s claim that he was entitled to a jury instruction regarding circumstantial evidence, we reverse and remand to the trial court for proceedings pertaining to that issue.

FACTS

¶ 3. During the early morning hours of February 23, 1998, five year old Jane Doe was abducted from her home while she was asleep on the couch. She was later dropped off in the rain by her abductor at a Wal-Mart parking lot as the store was opening. Store employees noticed the child wandering aimlessly around the parking lot crying. The police department was summoned and Jane Doe told the police that a “mean man named Dan” took her from her house and bound her hands to the spindle of a headboard with duct tape.

¶ 4. The police searched the Wal-Mart parking lot and discovered a piece of duct tape in the vicinity of the area from which the child came. After replacing Jane Doe’s wet clothes, the police transported her to a hospital where tests were performed that showed she had been sexually assaulted. Jane Doe’s mother was called and informed, much to her surprise, that her child was found in a Wal-Mart parking lot.

¶ 5. Jane Doe gave a description of her abductor to the police and a composite of the man was made. The initial description given of her attacker was that he had blond hair, wore church clothes and wore a green and brown hunting style cap. Jane Doe told the police that the abductor’s car was very clean and it was white with a blue interior and it had four doors. Jane Doe said that she was taken to the abductor’s house where her hands were tied with duct tape to a spindled headboard. She said that the culprit’s house was white and she was able to draw a picture of it for the police. Jane Doe also described various appliances and furniture that were contained within the house.

¶ 6. The following week the police received a telephone call from Dan McDan-iels inquiring as to the status of the Jane Doe case and offering his assistance. The police considered this suspicious and began investigating him. Many of Jane Doe’s statements to the police matched the description of Dan McDaniels. He was later arrested, but the charges were eventually dropped after DNA evidence positively excluded him as the suspected culprit.

¶ 7. Approximately three weeks after Jane Doe’s abduction, Todd Randall Trow-er was arrested on an unrelated charge. Trower’s facial features were strikingly similar to the composite picture the police had compiled based on Jane Doe’s description. The police searched Trower’s house and discovered the house contained many of the same items that Jane Doe had described. Upon entering Trower’s bedroom, the police discovered a piece of duct tape stuck to a spindle on the headboard. With the evidence obtained from the search, the authorities requested and obtained a male sexual assault kit from Trower.

¶ 8. The blood and tissue samples taken from Trower were sent to the Mississippi Crime Lab for DNA testing. The Mississippi Crime Lab, at the time, was only capable of testing seven genetic markers. The preliminary profile of the abductor fit Trower; however, the Mississippi Crime Lab could only assign a one in four probability that Trower was the perpetrator of the crime. Trower’s samples were then sent to Reliagene, a private DNA lab located in New Orleans, Louisiana, for further genetic marker testing.

¶ 9. Reliagene determined that Trower was the likely perpetrator of the crime. The DNA yielded from the victim was a mixed sample which contained the DNA of both Jane Doe and Trower. A mixed sample occurs where there is a spill over from the female fraction into the male fraction of DNA.

¶ 10. In other words, there is not a hundred percent separation of the male and female DNA. Reliagene scientists reached a conclusion from the DNA results by comparing Trower’s known DNA profile to the sperm cell fraction DNA taken from Jane Doe. Each marker of the DNA was tested and Trower could not be excluded as having contributed to the mixture.

¶ 11. After determining that Trower could not be excluded from the DNA sample, a statistical analysis was then applied to the DNA. A statistical analysis of DNA can either be exclusive or inclusive. An exclusion probability sample takes the perpetrator’s DNA' and compares it to Caucasian, Black and Hispanic databases in order to determine how many people are excluded as having contributed to the profile. It was determined that ninety-nine point nine percent (99.9%) of the population could be excluded from the DNA sample. Yet, Trower could not be excluded from having contributed to the DNA sample yielded from Jane Doe. An inclusive statistical analysis was also used to tell how many people out of a certain population could have contributed to the DNA profile. It was determined that only one (1) • in six hundred ninety thousand (690,000) persons could be included in this particular sample. Therefore, one would have to look at six hundred ninety thousand (690,000) persons of the Caucasian race to find someone that coincidentally matched the DNA profile taken from the victim-.

¶ 12. Following a trial by jury, Trower was convicted of all three counts in the indictment. The trial judge denied Trow-er’s motions for a new trial, or in the alternative, a JNOV, and Trower appealed to this Court.

I. THE TRIAL COURT ERRED WHEN IT REFUSED TO IN- . STRUCT THE JURY REGARDING CIRCUMSTANTIAL EVIDENCE.

¶ 13. Trower alleges the trial court erred in its failure to grant a circumstantial jury instruction.- The State argued that the case against Trower was not circumstantial claiming DNA evidence is direct evidence. The circumstantial jury instruction at issue stated: “The court instructs the jury that if you can reconcile the evidence upon any reasonable hypothesis consistent with innocence of the accused; Todd Trower, you should do so and find him not guilty.” The trial judge took the jury instruction under advisement and later declined to grant the instruction holding that DNA evidence is direct evidence.

¶ 14. A circumstantial evidence instruction “must be given unless there is some type of direct evidence such as eyewitness testimony, dying declaration, or confession or admission of the accused.” Deal v. State, 589 So.2d 1257, 1260 (Miss.1991). “The rule in Mississippi is that a circumstantial evidence instruction should be given only when the prosecution can produce neither eyewitnesses or a confession to the offense charged.” Stringfellow v. State, 595 So.2d 1320, 1322 (Miss.1992). “Where all the evidence tending to prove the guilt of the defendant is circumstantial, the trial court must grant a jury instruction that every reasonable hypothesis other than that of guilt must be excluded in order to convict.” Henderson v. State, 453 So.2d 708, 710 (Miss.1984).

¶ 15. The State argues that DNA evidence is direct evidence without citing any case precedent to support its argument. The trial court based its refusal of the circumstantial jury instruction on the holding in the case of Whitlock v. State, 419 So.2d 200 (Miss.1982). In Whitlock, the victim positively identified the defendant as her attacker through voice, height and build, thereby, negating the need for a circumstantial jury instruction. Id. at 203. The Whitlock case does not hold that DNA is direct evidence. In Whitlock, the victim was robbed and raped by an intruder. Id. at 201. The defendant was charged with armed robbery and later denied a circumstantial jury instruction because “the prosecution relied upon both direct and circumstantial evidence. Mrs. Robinson was an eyewitness who identified Whitlock as the accused.” Id. at 204.

¶ 16. The court in Whitlock did not deny the defendant a circumstantial jury instruction based on DNA evidence. DNA evidence played no part in the resolution of the case against Whitlock. Nor did the court state in its holding that DNA evidence is to be considered direct evidence.

¶ 17. In Parker v. State, 606 So.2d 1132 (Miss.1992), the Mississippi Supreme Court held that it was reversible error for the trial court to refuse to grant a circumstantial jury instruction. In Parker, the victim was raped and murdered. A sexual assault kit was obtained from the victim which contained the DNA of two separate men. Id. at 1136. Forensic analysis determined that the DNA samples were deposited from two individuals that were non-secreters. Both Parker and the victim’s boyfriend were non-secreters. Id. at 1141. There was testimony at trial that the victim and her boyfriend had consensual sexual relations on the night of her death. Id.

¶ 18. Parker was convicted of the crime, but the Mississippi Supreme Court reversed his conviction because the evidence in the case, which was DNA, was “wholly circumstantial.” IcL at 1140. The court held that the evidence in the case was entirely circumstantial because it “required the jury to draw upon inferences and suspicious circumstances in order to return a conviction.” Id. at 1141.

¶ 19. In Hughes v. State, 735 So.2d 238, 248(¶ 15) (Miss.1999) the State built a “strong circumstantial case against the accused through the testimony of witnesses, the identification and location of items of physical evidence and the DNA evidence.” With regard to the DNA evidence, the court stated that the “frequency of [a] random occurrence, coupled with the non-statistical, circumstantial evidence of this case, makes it highly unlikely that another man besides Mr. Hughes is the match for the DNA found in the semen.” Id. at (¶ 116). Although convinced of the defendant’s guilt, the court clearly categorized the DNA evidence as circumstantial.

¶ 20. In a search of case law on the question of the nature of DNA evidence, it was determined that while some jurisdictions classify DNA evidence as direct evidence, more jurisdictions classify DNA evidence as circumstantial. For cases characterizing DNA evidence as circumstantial, see, for example, Thomas v. State, 824 So.2d 1, 35 (Ala.Cr.App.1999); People v. Groves, 854 P.2d 1310, 1315 (Colo.App.1992); Bedoya v. State, 779 So.2d 574, 577 (Fla. 5th DCA 2001); Greenway v. State, 207 Ga.App. 511, 428 S.E.2d 415, 416 (1993); People v. Stremmel, 258 Ill.App.3d 93, 630 N.E.2d 1301, 1307, 197 Ill.Dec. 177 (1994); Jones v. State, 780 N.E.2d 373, 376 (Ind.2002); State v. Spaeth, 552 N.W.2d 187, 192-93 (Minn.1996); State v. Fortin, 318 N.J.Super. 577, 602, 724 A.2d 818, 831 (App.Div.1999).

¶ 21. This Court is committed to following the case precedent of the Mississippi Supreme Court, although the DNA evidence overwhelmingly implicates Trower as the culprit of this crime. The case law of Mississippi treats DNA evidence as a type of circumstantial evidence. Therefore, Trower was entitled to a circumstantial jury instruction under Mississippi law. Finding this issue dispositive, we reverse and remand to the lower court for further proceedings.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY IS REVERSED AND REMANDED FOR A NEW TRIAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

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


source: Caselaw Access Project

author: SOUTHWICK, P.J.,

license: Public Domain

text:
    Lorenzo WHITE, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-CP-00717-COA.
    Court of Appeals of Mississippi.
    Jan. 6, 2004.
    Rehearing Denied March 9, 2004.

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

for the Court.

¶ 1. In 2001, Lorenzo White pled guilty to possession of marijuana with intent to distribute. His subsequent petition for post-conviction relief was denied. The trial judge made this decision without reviewing any evidence, such as the plea petition or the transcript from the plea hearing. Since we have nothing on which to determine the validity of the denial of relief, we reverse and remand for further proceedings.

¶ 2. In December 1999, Lorenzo White’s two cousins were arrested for possession of marijuana. They informed authorities that they had received the marijuana from White. White was arrested, indicted, and in January 2001 pled guilty to possession of marijuana with intent to distribute.

¶ 3. The indictment of July 2000 is in the appellate record, but we do not have copies of any orders in this case prior to those of June 2001. According to subsequent orders and the briefs on this appeal, White’s sentence in January 2001 was to serve two years in the custody of the Mississippi Department of Corrections. He was sent to a program in Atlanta, Georgia to receive drug treatment and rehabilitation. In March 2001, White escaped from the facility and returned to his home in Mississippi. He was arrested on June 1. On June 4, 2001, White was sentenced to serve twenty-five years in the custody of the Mississippi Department of Corrections. This sentence was on the original possession of marijuana with intent to distribute charge for which he had five months earlier been given a two year sentence that sent him to drug rehabilitation.

¶ 4. White’s motion for post-conviction relief was denied without a hearing on February 27, 2003. He alleged that his plea was not voluntarily and knowingly given since he did not know that he could be required to serve a twenty-five year sentence if he did not complete drug rehabilitation. He further argues that he received ineffective assistance of counsel and a disproportionate sentence, and that despite his guilty plea he never had constructive possession of marijuana.

DISCUSSION

Guilty Plea

¶ 5. A uniform rule sets out the procedure to be followed by the trial judge in taking a guilty plea:

Before the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea. A plea of guilty is not voluntary if induced by fear, violence, deception, or improper inducements. A showing that the plea of guilty was voluntarily and intelligently made must appear in the record.

URCCC 8.04(3).

¶ 6. The trial judge is to determine whether the plea is voluntarily and intelligently given. The plea is accepted only when the judge is able to question the defendant to his satisfaction to determine that the plea is properly given. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992).

¶ 7. A voluntarily and intelligently entered plea is one in which the defendant was advised about the nature of the crime charged and the consequences of the guilty plea. Goss v. State, 730 So.2d 568, 573 (Miss.1998). In order to address the issue of whether or not White’s plea was voluntarily and knowingly given, it is necessary that we have some evidence as to what White was told. His plea petition might suffice if it contains assertions by White and information on the matters otherwise necessary to show a knowing and voluntary plea. A transcript from the plea hearing would also be proper evidence. Neither of these is before us.

¶ 8. White claims that his attorney advised him that he would receive a short sentence of drug rehabilitation and that he was not advised that the court could impose a twenty-five year sentence if he did not complete the rehabilitation program. If that is true, then there are issues of voluntariness that would need then to be addressed. Of less importance is that White states he had previously turned down an eight year plea offer. This allegedly proves that he would have opted to go to trial instead of pleading guilty to an arrangement that could lead to a twenty-five year sentence. We do not find White’s conclusion on the latter point necessarily to follow from his factual premise.

¶ 9. As of now, there is no evidence before us regarding the defendant’s guilty plea. The judge who denied the motion for relief stated in his order that White had been thoroughly questioned at his plea hearing, that he understood the consequences of the plea, and that he knew the maximum and minimum punishments for the crime. The judge said that the court had “specifically admonished this Petitioner that if he failed to complete his programs, the Court would ‘send him to the penitentiary.’ ” We do not know if this was based on the trial judge’s recollections, though it appears that a different circuit judge took the guilty plea, or whether there was some other source.

¶ 10. When a trial court has denied a petition for post-conviction relief, this Court will examine whether the denial is clearly erroneous. The trial judge’s obligation is to review the “original motion, together with all the files, records, transcripts and correspondence relating to the judgment under attack” in order to resolve the merits of the allegations. Miss.Code Ann. § 99-39-11(1) (Rev.2000).

¶ 11. The records indicate that Judge Gray Evans took the plea from White in January 2001. On February 27, 2003, Judge Richard Smith denied the motion for post-conviction relief stating that the plea was “knowingly and voluntarily given and facially correct.” It does not appear in the records how Judge Smith made this decision without reviewing the transcript of the plea hearing or the plea petition. It is for this reason that we must reverse and remand for proceedings that create a sufficient record for appellate review.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY DENYING POST-CONVICTION RELIEF IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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


author: GRIFFIS, J.,

text:
    MISSISSIPPI EMPLOYMENT SECURITY COMMISSION and Sam’s Town Hotel and Gambling Casino, Appellants v. Larry D. DANNER, Appellee.
    No. 2003-CC-00810-COA.
    Court of Appeals of Mississippi.
    March 16, 2004.
    Albert B. White, Madison, attorney for appellant.
    Larry Danner (Pro Se).
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   GRIFFIS, J.,

for the court.

¶ 1. Larry Danner was terminated from his job as a coin room attendant at Sam’s Town Hotel and Gambling Casino. Dan-ner filed a claim with the Mississippi Employment Security Commission. The claims examiner granted his claim for unemployment benefits. On appeal, the referee reversed and denied benefits. The Board of Review affirmed. Danner then appealed to the Circuit Court of Coahoma County, where the Commission’s decision was reversed and Danner’s benefits were reinstated. We find that the record contained substantial evidence to support the Commission’s findings. Accordingly, we reverse.

FACTS

¶ 2. From May 15, 2001, until March 5, 2002, Larry Danner was employed as a coin room attendant for Sam’s Town Hotel and Gambling Casino. On March 1, 2002, Danner called his employer and stated that he was ill and could not report to work. He was told to call if he would not return on March 2nd. Danner did not report to work or call in on March 2nd, 3rd, 4th, or 5th.

¶ 3. On March 5, 2002, Danner was discharged pursuant to Sam’s Town’s no-call, no-show policy. This policy provided that an employee will be discharged after one instance of failing to report to work or call in. Here, Sam’s Town gave Danner several extra days before termination. The policy did not require that Sam’s Town give Danner the extra days. Danner eventually reported back to work,, when he was advised he had been terminated on March 5th for violating the no-call, no-show policy. Karen Davidson, Sam’s Town’s human resource specialist, testified that if Danner had returned to work with a doctor’s excuse he probably would not have been terminated, but Danner had no such excuse.

¶ 4. After his termination, Danner filed a claim for unemployment benefits with the Commission. The claims examiner’s investigation concluded that Sam’s Town failed to prove misconduct. Sam’s Town appealed, and a telephonic hearing was noticed. The notice instructed Danner to return the telephone response form to advise the Commission of his telephone number so he could participate. Danner failed to do so. As a result, Danner did not participate in the telephonic hearing conducted on July 16, 2002. Based on the testimony and evidence submitted at the hearing, the referee determined that Danner had been terminated for misconduct. On appeal, the Board of Review adopted the referee’s opinion denying benefits.

115. Danner appealed to the Circuit Court of Coahoma County. Without the submission of briefs or oral argument, the circuit court reversed the Board of Review and found that there was insufficient evidence to support the Commission’s decision. The Commission now appeals and asserts that the circuit court exceeded its authority.

STANDARD OF REVIEW

¶ 6. “In any judicial proceedings under this section, the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.” Miss.Code Ann. § 71-5-531 (Rev. 2002). The Mississippi Supreme Court explained this standard of review in Allen v. Mississippi Employment Security Commission, 639 So.2d 904, 906 (Miss.1994):

This Court’s standard of review of an administrative agency’s findings and de-cisións is well established. An agency’s conclusions must' remain ’ undisturbed unless the agency’s order 1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one’s constitutional rights. A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise. Lastly, this Court must not reweigh the facts of the case or insert its judgment for that of the agency.

¶ 7. As an appellate court, we give substantial deference to an administrative agency’s decision. Typically, our review is on whether the agency’s decision was supported by substantial evidence or was arbitrary or capricious. Here, unfortunately, Danner failed to provide this Court with a brief setting forth his argument and authorities. In W.T. Raleigh Co. v. Armstrong, 165 Miss. 380, 380, 140 So. 527, 527-28 (1932), the Mississippi Supreme Court recognized that there is no uniform rule or procedure to guide the reviewing court when an appellee fails to file a brief. The court discussed the two schools of thought on the appropriate procedure. First, the appellee’s failure could be considered a default and as a confession of the errors assigned by the appellant, requiring automatic reversal. Id. Second, the reviewing court could disregard the appellee’s failure to file a brief, but would not be obligated to undertake an exhaustive search to substantiate the appellee’s positions. Id. The court concluded:

when the record is in such condition that we can conveniently examine it, and when upon such an examination we can readily perceive a sound and unmistakable basis or ground upon which the judgment may be safely affirmed, we will take that course and affirm, thereby to that extent disregarding the default of appellee. But when, taking into view the argument presented by appellant, the basis or grounds of the judgment, and the facts in support of it are not apparent, or are not such that the court could with entire confidence and safety proceed to affirmance, the judgment will be reversed without prejudice.

Id. at 527-28.

Here, the record is such that we can conveniently examine it. With this in mind, we proceed with a discussion of the merits of the case and examine this appeal according to the applicable standard of review.

ANALYSIS

¶ 8. The Commission asserts that the circuit court abused its discretion by reversing the Board of Review’s decision, which found that Sam’s Town proved Dan-ner had committed disqualifying misconduct by violating its attendance policy. Mississippi Code Annotated Section 71-5-513(A)(1)(b) (Rev.2003) provides that:

An individual shall be disqualified for benefits:
(b) For the week, or fraction thereof, which immediately follows the day on which he was discharged for misconduct connected with his work, if so found by the commission, and for each week thereafter until he has earned remuneration for personal services performed for an employer, as in this chapter defined, equal to not less than eight (8) times his weekly benefit amount, as determined in each case.

¶ 9. In Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982), the Mississippi Supreme Court defined the meaning of misconduct:

The term “misconduct,” as used in the unemployment compensation statute, was conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, came within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion were not considered “misconduct” within the meaning of the statute.

¶ 10. The question we must now consider is whether Danner’s actions rose to the level of misconduct defined in the statute. We find that there was substantial evidence to support the Commission’s finding of misconduct.

¶ 11. In Barnett v. Mississippi Employment Security Commission, 583 So.2d 193, 194 (Miss.1991), the employee was fired for excessive absenteeism and being warned about failing to show up for work without calling. In finding misconduct, the supreme court noted that although a tree fell on the employee’s house, the employee nevertheless could have called the employer. Id. at 196. The court contrasted these facts with other cases where the employee’s failure to show up or call was outside the employee’s control. Id.

¶ 12. Here, Danner was terminated for no-call, no-show policy violation after failing to call Sam’s Town or report to work for four consecutive days. Sam’s Town’s policy provided that one no-call, no-show was grounds for termination. Danner’s four consecutive absences were sufficient to establish a willful and'wanton disregard of the employer’s attendance policy, particularly when the policy allowed for termination after one such absence. ■

¶ 13. Just as in Barnett, Danner’s failure to call his employer was not outside his control. He called in sick on March 1st and was told by his supervisor to call again if he would not return to work the next day. Danner never called again. Danner presented no evidence to mitigate this finding or to imply that Sam’s Town had consented to his absence without requiring that he adhere to the attendance policy.

¶ 14. Here, the Commission found that Danner failed to take the appropriate steps while absent to protect his employment. The circuit court correctly found that Danner failed to. comply with his employer’s no-call, no-show policy; however, the court erred in finding that there was not substantial evidence to disqualify him for misconduct. Danner’s four consecutive no-call, no-show absences were sufficient to establish a willful and wanton disregard of the employer’s attendance policy. Accordingly, we find that there was substantial evidence to support the Commission’s decision that Danner is not eligible to receive unemployment benefits. Therefore, the judgment of the circuit court is reversed and the Commission’s decision is reinstated.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY IS REVERSED.

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


author: CHANDLER, J.,

text:
    Terence Lee LOWERY, Appellant v. Lisa (Lowery) MARDIS, Appellee.
    No. 2002-CA-01969-COA.
    Court of Appeals of Mississippi.
    March 16, 2004.

      Regan S. Russell, New Albany, attorney for appellant.
    Joe M. Davis, New Albany, attorney for appellee.
    Before KING, P.J., LEE and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Terence Lowery and Lisa Mardis were divorced on July 19, 1990. Joint legal custody of Nicholas Lowery, the minor child of the parties, was awarded to both parents, with Lisa to receive physical custody of Nicholas. On June 23, 1997, Terence filed a petition with the court to receive physical custody of Nicholas and an order of modification was entered on September 8, 1997, awarding custody of Nicholas to Terence. Lisa filed a motion for emergency relief on August 15, 2001, in order to obtain temporary custody of Nicholas. The motion was granted and the court set the matter for review. At the review hearing, on August 22, 2002, the court awarded legal and physical custody to Lisa. Terence filed a motion to reconsider which was denied by the court on August 26, 2002. Feeling aggrieved, Terence appeals the following errors:

1. WHETHER THE CHANCELLOR ERRED WHEN HE FAILED TO SPECIFICALLY ADDRESS THE ALBRIGHT FACTORS IN MODIFYING CUSTODY OF THE MINOR CHILD.
2. WHETHER THE DECISION OF THE CHANCELLOR TO MODIFY CUSTODY OF THE MINOR CHILD WAS ERRONEOUS AND AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 2. Finding merit in Terence’s argument that the chancellor failed to specifically address the Albright Factors, we reverse and remand to the trial court for application of Albright

FACTS

¶ 3. Terence Lowery and Lisa Mardis were married on October 2, 1982. Nicholas was born out of this marriage on June 9, 1986. The couple divorced on July 19, 1990, with joint custody of Nicholas to be shared between the two. During the school year, Nicholas was to reside with Lisa with visitation granted to Terence on the weekends and holidays. Terence was to be the primary care-giver during the summer months.

¶ 4. Nicholas failed the fifth grade, and Terence filed for a reversal of the original custody decree asking the court to appoint him as the primary caregiver during the school year with Lisa as the primary caregiver during the summer. The court granted the request on September 8, 1997.

¶ 5. Terence took Nicholas to Dr. William T. Osborne with complaints of disciplinary problems. Previously, Nicholas had been diagnosed with attention deficit disorder. Dr. Osborne evaluated Nicholas and diagnosed him with oppositional defiant disorder. Dr. Osborne prescribed a program of treatment using behavioral management. Nicholas’ program required the use of daily report sheets to be completed by teachers and returned to Nicholas’ parents. Under the program, points were awarded to Nicholas for good behavior and good performance at school. When Nicholas accumulated a certain number of points he was allowed to participate in activities that he enjoyed. Nicholas was disciplined by deducting points, restricting certain activities and requiring that he run laps.

¶ 6. Lisa filed a petition for modification of custody on August 14, 2001. She also filed a motion for emergency relief the same day claiming Terence posed a danger to Nicholas.

¶ 7. A hearing was set for August 22, 2001. Numerous witnesses testified at the review hearing including Nicholas’ school principal, Ben Burnette, who testified that Nicholas exhibited classroom behavior problems at the school. He stated that Nicholas had a history of untruthfulness. Burnette said he communicated with Terence by completing the daily report sheets. Burnette stated that Nicholas’ behavioral problems were most severe when he arrived in the sixth grade but diminished somewhat in later grades.

¶ 8. Terence testified at the hearing and explained the course of treatment that was used in an effort to correct Nicholas’ behavior problems. He discussed Dr. Osborne’s program and explained how he rewarded Nicholas for good behavior and disciplined Nicholas when he behaved in an unacceptable way. Terence said Nicholas’ grades improved under his care. He also said Nicholas exhibited more defiance towards him and people in positions of authority following visitations with Lisa.

. ¶ 9. Under cross-examination Terence admitted that he locked Nicholas out of the house unless a, parent was present. Terence claimed the periods of time Nicholas was locked out of the house were short and caused no harm to Nicholas. He said Nicholas could contact one of the neighbors if an emergency arose. He said the Department of Human Services investigated a complaint Lisa filed against him because he locked Nicholas out of the house. He said the Department of Human Services took no action. Terence admitted that he eavesdropped on Nicholas’ telephone conversations and that he monitored Nicholas’ email account.

¶ 10. Anna Lowery, Nicholas’ stepmother, testified that Nicholas’ behavior would improve until he had contact with Lisa. She also refuted Nicholas’ allegation that she slapped him during an argument between the two. Anna said she threw a towel at Nicholas after he refused to run a lap. She stated that Nicholas used profanity as he walked away from her, and Terence became involved in the argument. It was alleged that Terence physically restrained Nicholas and Anna slapped him. Afterwards, Nicholas told a neighbor that he was being abused, but the Department of Human Services and sheriffs department declined to take any action in the matter. Nicholas’ tenth grade teacher, Tara Gardner, testified that Nicholas, on one occasion, changed a daily report sheet, and she notified Terence. Gardner stated that she was very impressed with the concern for Nicholas’ welfare shown by Terence and Anna.

¶ 11. After the hearing the court, in its interim judgment, found the actions of Terence posed a threat to the minor child creating potential physical and emotional damage to Nicholas. The trial judge found one of the greatest risks to Nicholas was caused by Dr. Osborne’s counseling “who is not medically trained and ... was the former pastor of the church” that Terence and Anna attended. The court found the course of treatment recommended and approved by Dr. Osborne bizarre. The court awarded custody of Nicholas to Union County Department of Human Services and recommended medical and psychiatric treatment for him.

¶ 12. Pursuant to the court’s order, Nicholas was evaluated by Dr. Malachy McCool. Following the evaluations, the court reconvened on March 14, 2002. At that hearing, Nicholas said that he wanted to live with his mother. He denied Terence’s allegation that a sexual experience had occurred between him and a girl. Nicholas admitted that he was going to fail two classes that school year but said that he planned to attend summer school in order to pass the tenth grade. Nicholas stated that Lisa required him to follow reasonable rules but Terence always belittled him. Nicholas said he could be more open with Lisa. During Lisa’s testimony, she admitted making two reports of abuse against Terence which were never substantiated. She denied that Nicholas used tobacco, alcohol, or drugs despite statements Nicholas allegedly made to Dr. Osborne and Mr. McCool.

¶ 13. Devan Roberts, an employee of the Union County Department of Human Services, testified that he investigated the abuse allegation pertaining to Terence’s locking Nicholas out of the house. He found no evidence of neglect. Robert’s report noted that Nicholas seemed to be caught in the middle of his parents’ arguments and was at high risk for emotional abuse. Roberts referred to Dr. McCool’s report which indicated that Lisa and Terence ascribe to different approaches to parenting. Terence has a strict structural approach while Lisa is more relaxed in her style. He opined that Nicholas had regressed since returning to Lisa’s custody. The report noted that Nicholas was troubled by the feuding between Terence and Lisa.

¶ 14. The court entered its judgment on August 26, 2002, holding that Nicholas strongly preferred to live with Lisa and found that it was in Nicholas’ best interest for Lisa to have custody. The court specifically held that Dr. Osborne was having an adverse effect on Nicholas. The court’s ruling found Terence’s conduct to pose a threat to Nicholas’ emotional well-being, but the ruling made no reference to the Albright factors. Terence filed a motion for reconsideration which was denied on November 8, 2002.

STANDARD OF REVIEW

¶ 15. Our standard of review is clear. “Chancellors are vested with broad discretion, and this Court will not disturb the chancellor’s findings unless the court’s actions were manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard.” Mixon v. Mixon, 724 So.2d 956, 959(¶8) (Miss.Ct.App.1998). “However, where the chancellor improperly considers and applies the Albright factors, an appellate court is obliged to find the chancellor in error.” Hollon v. Hollon, 784 So.2d 943, 946 (¶ 11) (Miss.2001) (citing Jerome v. Stroud, 689 So.2d 755, 757 (Miss.1997)).

1. WHETHER THE CHANCELLOR ERRED WHEN HE FAILED TO SPECIFICALLY ADDRESS THE ALBRIGHT FACTORS IN MODIFYING CUSTODY OF THE MINOR CHILD.

¶ 16. The polestar consideration in child custody cases is the best interest and welfare of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The Albright case provided Mississippi courts with guidelines for determining the best placement of the child when adjudicating custody disputes. These factors include: (1) age, health and sex of the child; (2)- identifying the parent who had the continuity of care prior to the separation; (3) which parent possesses better parenting skills and who has the willingness and capacity to provide primary child care; (4) the employment of the parents and responsibilities of their respective employment; (5) physical health, mental health and age of the parents; (6) emotional ties of parent and child; (7) moral fitness of parents; (8) the home, school and community record of the child; (9) the preference by law; (10) stability of the home environment; and (11) other factors relevant to the parent-child relationship. Albright, 437 So.2d at 1005. Marital fault should not be used as a sanction in the custody decision, nor should differences in religion, personal values or lifestyles be the sole basis for custody decisions. Id.

¶ 17. The Mississippi Supreme Court has held that the chancellor should properly make findings of fact on the record as to the various factors under Albright. Sobieske v. Preslar, 755 So.2d 410, 413 (¶ 12) (Miss.2000). The court has held that it is erroneous for a chancellor to fail to make a thorough discussion of the Albright factors. Powell v. Ayars, 792 So.2d 240, 249 (¶ 33) (Miss.2001).

¶ 18. In the case at bar, the chancellor did not recite any of the Albright factors. Nor, did he specifically mention the Al-bright case or its factors in his ruling. Therefore, the chancellor erred as a matter of law in failing to analyze and make proper findings as to each factor under Albright. Accordingly, the case is remanded to the trial court for application of the Albright factors. Finding this issue dispositive of the case, we do not address the other issue on appeal.

¶ 19. THE JUDGMENT OF THE CHANCERY COURT OF UNION COUNTY IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . Terence's name was spelled several different ways on documents filed in this cause: however, for purposes of this appeal we have chosen the "Terence” spelling.


text:
    Delbert Matthew MASON, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-CP-02013-COA.
    Court of Appeals of Mississippi.
    March 16, 2004.

      Delbert M. Mason (Pro Se).
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   GRIFFIS, J.,

for the court.

¶ 1. Delbert M. Mason struck Audrey M. Wallace on her head and body with a board, breaking her right arm and left hand. Mason pled guilty to a charge of aggravated assault and was convicted on June 4, 1996. On September 24, 2002, Mason filed a motion for post-conviction relief, alleging that the indictment was defective. Mason claims that the indictment was defective due to its exclusion of the essential element word “serious” as a modifier to bodily harm, in his indictment for aggravated assault. The circuit court denied the motion for post-conviction relief finding it untimely. Mason appeals.

¶ 2. ‘When reviewing a lower court’s decision to deny a petition for post-conviction relief, this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised, the applicable standard of review is de novo.” Graves v. State, 822 So.2d 1089, 1090(¶ 4) (Miss.Ct.App.2002) (citing Pickett v. State, 751 So.2d 1031, 1032(¶8) (Miss.1999); Brown, v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999)). The Mississippi Supreme Court has pointed out that the “question of whether an indictment is fatally defective is an issue of law.” Peterson v. State, 671 So.2d 647, 652 (Miss.1996). Therefore, the standard by which this Court reviews the denial of Mason’s motion for post-conviction relief is de novo.

¶ 3. Mississippi Code Annotated Section 99-39-5(2) (Rev.2000) sets the limitations period for filing a motion for post-conviction relief. In a case involving a guilty plea, the motion must be filed within three years after entry of the judgment of conviction. Id. Here, Mason’s motion for post-conviction relief was filed more than six years after the entry of the judgment of conviction, and there was no evidence that any of the exceptions in Section 99-39-5(2) were applicable.

¶ 4. Mason presented no evidence of an intervening decision which would have actually adversely affected the outcome of his conviction or sentence. Neither has Mason presented any evidence of newly discovered evidence, not reasonably discoverable at the time of trial, that would have been practically conclusive of a different result. Mason has not claimed that his sentence has expired or his probation, parole or conditional release was unlawfully revoked. Therefore, the trial court properly denied the motion for post-conviction relief.

¶ 5. It is worth noting that even if Mason’s motion were timely, it would still be without merit. Mason claims that the indictment’s exclusion of the word “serious” as a modifier of bodily harm constitutes an exclusion of an essential element. It is well settled that in order for an indictment to avoid being rendered fatally defective the indictment must state all the essential elements. Peterson, 671 So.2d 647, 652-53; URCCC 7.06. However, this is of no help to Mason. The indictment here did indeed state all the essential elements of aggravated assault under Section 97-3-7(2)(b).

¶ 6. Mississippi Code Annotated Section 97-3-7(2) delineates two separate crimes of aggravated assault. Under Section 97-3-7(2)(a), it is only necessary to charge and prove that one purposefully, knowingly or recklessly caused serious bodily injury under circumstances manifesting extreme indifference to human life. Therefore, no use of a deadly weapon is required. Jackson v. State, 594 So.2d 20, 24 (Miss.1992). On the other hand, Section 97 — 3—7(2)(b) . requires a showing of bodily injury by purposeful, knowing or reckless use of a deadly weapon. Therefore, no “serious” injury is required. Id. Mason’s indictment charged Mason with aggravated assault under Section 97 — 3—7(2)(b). As the supreme court pointed out in Jackson, no “serious” injury is required for a Section 97 — 3—7(2)(b) charge. Id.

¶ 7. Therefore, even assuming the motion was timely, it is still without merit. Accordingly, we find the trial-court committed no error and affirm the denial of Mason’s motion for post-conviction relief.

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

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


author:
PER CURIAM.
      MOORE, Chief Justice

text:
    AMERICAN AUTOMOTIVE ACCEPTANCE COMPANY v. NEW SOUTH FEDERAL SAVINGS BANK.
    1011657.
    Supreme Court of Alabama.
    Feb. 21, 2003.
    James R. Morgan, Birmingham, for appellant.
    Larry B. Childs and Kary Bryant Wolfe of Walston, Wells, Anderson & Bains, Birmingham, for. appellee.
   PER CURIAM.

The plaintiff, American Automotive Acceptance Company (“American Automotive”), appeals from the denial of a motion to reconsider a summary judgment in favor of the defendants, New South Federal Savings Bank (“New South”) and one of its loan officers, Steve Thomas. American Automotive appeals the summary judgment as to New South. We dismiss the appeal as untimely.

On January 29, 1999, American Automotive and New South entered into a floor-plan loan agreement in which New South agreed to extend American Automotive a line of credit in the amount of $300,000 for a term extending from January 29, 1999, through January 15, 2000. American Automotive used the money to purchase automobiles for sale at an automobile dealership it owned and operated.

American Automotive alleges that on November 10, 1999, contrary to the terms of the loan agreement, New South unilaterally reduced the credit line from $300,000 to $250,000, and began to interfere with the business operations of American Automotive’s dealership by ordering American Automotive to liquidate its inventory to reduce the principal balance of the credit line below $250,000. American Automotive did not liquidate its inventory, and on November 30, 1999, New South gave American Automotive written notice that it had defaulted on the loan agreement and that New South was repossessing American Automotive’s automobile inventory as of that date.

American Automotive sued New South and Thomas on October 16, 2000, alleging breach of contract, tortious interference with business relationships, fraudulent misrepresentation, wrongful repossession and/or conversion, and breach of fiduciary duty. On September 10, 2001, New South and Thomas moved for a summary judgment as to all claims asserted by American Automotive. American Automotive filed a response to New South and Thomas’s motion and after a hearing on the motion, the trial court, on January 16, 2002, entered a summary judgment in favor of New South and Thomas as to all claims. However, because new counsel for American Automotive had filed a notice of appearance in the case on January 9, the trial court also, in its summary-judgment order, allowed American Automotive to conduct additional discovery and ordered American Automotive to file, within 70 days of the order, a “motion for reconsideration.” On March 27, 2002, American Automotive filed a motion to alter, amend, or vacate that judgment; on April 9, 2002, the trial court denied that motion and purported, at that time, to make the summary judgment final. American Automotive appeals the summary judgment as to its claims alleging breach of contract and wrongful repossession and/or conversion. American Automotive contends that several facts placed in issue demonstrate that New South wrongfully breached the loan agreement and that, therefore, a summary judgment as to that claim was improper. It further argues that because there are genuine issues of material fact regarding its breach-of-contract claim, New South’s summary-judgment motion should not have been granted as to its wrongful-repossession and/or conversion claim because a finding that New South had breached the loan agreement would mean that New South did not have the legal right to repossess American Automotive’s inventory.

However, before we consider these arguments, we must consider New South’s motion to dismiss American Automotive’s appeal as untimely. New South contends that the January 16, 2002, order entering a summary judgment as to all claims was a final order and that, therefore, according to Rule 4(a)(1), Ala. R.App. P., the appeal should have been filed within 42 days of that order, unless a postjudgment motion was filed pursuant to Rule 50, 52, 55, or 59, Ala. R. Civ. P. See Schiffman v. City of Irondale, 669 So.2d 136, 138 (Ala.1995).

New South points out that the trial court’s January 16', 2002, order explicitly “ordered, adjudged and decreed that summary judgment is entered in favor of [New South] as to each and- every claim asserted by [American Automotive] in this action.” However, the order went on to note that a notice of appearance for a new attorney representing American Automotive .was filed on January 9 and that new counsel had requested that additional discovery be conducted, claiming that “evidentiary materials crucial to [American Automotive’s] response to [New South’s] Motion for Summary Judgment has not yet been obtained by [American Automotive].” The trial court’s order stated that, in light of those facts, “the Court decline[d] to make the summary judgment order final.” The trial court then granted permission for American Automotive to conduct further discovery, including deposing defendant Thomas, and ordered it to file “a motion for reconsideration of this Order within seventy (70) days from the date of this Order....”

American Automotive conducted additional discovery and, as the trial court directed, filed a motion to alter, amend, or vacate the judgment on March 27, 2002, 70 days after the entry of the summary judgment. On April 9, 2002, the trial court entered an order purporting to deny the postjudgment motion. American Automotive filed its notice of appeal on May 21, 2002, 42 days after the denial of the motion to alter, amend, or vacate, but 125 days after the entry of the summary judgment.

American Automotive argues that the January 16, 2002, order clearly states that it is not a final order and that it was simply following the trial court’s directions in filing its motion to alter, amend, or vacate; therefore, it argues, the January 16 order should not be considered a final order.

“The rule in this State is that an order that disposes of all pending issues as to all parties, so that by the general rules of procedure it is final and appeal-able, will not be made nonfinal by the trial court’s calling it nonfinal. See Rule 54(b), [Ala.] R. Civ. P.” Smith v. Fruehauf Corp., 580 So.2d 570, 572 (Ala.1991) (emphasis added). While the January 16 order did state that it was not a final order, it also explicitly granted New South’s summary-judgment motion “as to each and every claim asserted” by American Automotive. An order that disposes of all claims against all parties must be construed as a final order. See, e.g., Lunceford v. Monumental Life Ins. Co., 641 So.2d 244, 246 (Ala.1994) (“A final judgment is an order ‘that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.’ ”).

The very fact that the trial court instructed American Automotive to file a motion it referred to as a “motion for reconsideration” indicates that the January 16 order disposed of all claims. The “motion for reconsideration” in this case must be construed as a Rule 59(e), Ala. R. Civ. P., motion to alter, amend, or vacate the judgment, because the January 16 order disposed of all claims against New South. Rule 59(e) requires that a motion to alter, amend, or vacate the judgment be filed “not later than thirty (30) days after entry of the judgment,” and Rule 6(b), Ala. R. Civ. P., provides that a court “may not extend the time for taking an action under Rules ... 59(b), (d), and (e), ... except to the extent and under the conditions stated in them.” In other words, the court’s order allowing American Automotive 70 days in which to file a “motion for reconsideration” was a nullity.

The “motion for reconsideration” was not filed within 30 days of the entry of the summary judgment; thus, it did not extend the 42-day period for filing an appeal. American Automotive did not file an appeal within 42 days of the January 16 order. Under Rule 2, Ala. R.App. P., the filing of a timely notice of appeal is a jurisdictional prerequisite; accordingly, this Court has no choice but to dismiss the appeal as untimely.

APPEAL DISMISSED.

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

MOORE, C.J., dissents.

SEE, J., recuses himself.

MOORE, Chief Justice

(dissenting).

I respectfully dissent from the Court’s decision to dismiss the appeal in this case as untimely because it construes the summary judgment entered by the trial court on January 16, 2002, as a final, appealable order. In its January 16, 2002, summary-judgment order in favor of New South Federal Savings Bank (“New South”) and Steve Thomas, a loan officer of New South, and against plaintiff American Automotive Acceptance Company (“American Automotive”), the trial court “Ordered, Adjudged, and Decreed that summary judgmént be granted in favor of [New South] as to each and every claim asserted by [American Automotive] in this action.” However, immediately following this statement, the trial court observed:

“The Court notes that James R.. Morgan entered his appearance [as attorney] for [American Automotive] on January 9, 2002. [American Automotive] has now filed a Motion to Continue under Rule 56(f), [Ala. R. Civ. P.,] along with the affidavit of James R. Morgan and the affidavit of William R. Selman [president of American Automotive]. These affidavits contend that evidentiary materials crucial to [American Automotive’s] response to [New South’s] Motion for Summary Judgment have not. yet been obtained by [American Automotive]. The affidavits contend [American Automotive] has not been represented by counsel and lack of counsel has prevented [American Automotive] from obtaining the necessary materials. The affidavit of William R. Selman contends that the corporation has diligently sought counsel.
“In light of the appearance of new counsel and [American Automotive’s] request for additional discovery, the Court declines to make the summary judgment order final.”

(Emphasis added.) The trial court then ordered that American Automotive be permitted to depose certain agents of New South and that American Automotive file a “motion for reconsideration of this Order within seventy (70) days from the date of this Order.... ”

In nearly every way imaginable, the trial court made it evident that it did not consider the January 16 order to be final: it indicated that there was evidence yet to be considered regarding New South’s summary-judgment motion; it ordered American Automotive to file a “motion for reconsideration” of the order within a designated time; and it explicitly stated that the January 16 order was not final. The trial court is the entity that adjudicates the case; it determines what evidence will be considered and at what point the case has been decided. A trial court’s characterization of its own order ought to be respected by this Court.

To hold that the January 16 order was final despite the trial court’s caveats to the contrary in that order is to elevate procedure over substance and punishes the appealing party for relying -upon the trial court’s statement in its own order that the adjudication was not final. At the least we are faced with an ambiguous order that we should not construe to the prejudice of the party that relied upon the very instructions of the trial court. Otherwise, we allow a judge to issue an ambiguous order that leads the- appealing party to delay filing its notice of appeal, to the appealing party’s own detriment. Equity demands that we interpret an ambiguous order so as not to deny a party the option of appeal. The January 16 order should be construed for what it is: a preliminary disposition of the case before all the evidence is received — not a final adjudication.

Because I do not believe that the January 16 order was a final order and because American Automotive timely appealed from the second order of April 9, 2002, which stated that the summary judgment was final, I do not believe that this appeal should be dismissed. The Court should decide it on the merits. Therefore, I must dissent.