text:
    Mike TEASLEY, Appellant/Cross Appellee v. Pete BUFORD, Individually and Pete Buford d/b/a Buford Construction; Buford Construction Company, Inc., Appellees/Cross Appellants.
    No. 2002-CA-00711-COA.
    Court of Appeals of Mississippi.
    June 29, 2004.

      John M. Mooney, Jackson, attorney for appellant.
    Alan C. Goodman, attorney for appel-lees.
   MYERS, J.,

for the Court.

¶ 1. Mike Teasley brought suit against Pete Buford individually, Pete Buford d/b/a Buford Construction and Buford Construction Company, Inc. in the Circuit Court of Warren County. The trial resulted in a jury verdict awarding Teasley $54,000 in compensatory damages for trespass, $500 in special damages and $5,500 for intentional or negligent infliction of emotional distress. From that verdict and award of damages, Teasley and Buford appeal and raise the following issues for this Court’s consideration.

ISSUES PRESENTED

I. Did the trial court err by denying Teasley’s motion for an additur?

II. Did the trial court err by denying Buford’s motion for remittitur?

III. Did the trial court err by granting Buford’s motion for a $5,000 credit due to Teasley’s settlement with Ernie Jenkins?

IV. Did the trial court err by refusing to submit the issue of punitive damages to the jury?

V. Did the trial court err by granting or refusing certain jury instructions?

VI. Did the trial court err by denying Teasley’s request for attorney’s fees, expenses and expert fees?

VII. Did the trial court err by denying Buford’s motion for JNOV because the jury award was against the overwhelming weight of the evidence and the controlling law of the case?

STATEMENT OF FACTS

¶ 2. Teasley owned approximately twenty-six acres of property in Warren County, Mississippi. Teasley’s property adjoined land owned by Ernie Jenkins. Buford Construction Company, Inc., owned and operated by Pete Buford, was contracted by Jenkins to do construction work on Jenkins’s property in March of 2000. During that time, Buford admitted that he trespassed onto Teasley’s property by removing a fence and crossing the boundary line. Teasley alleged that Buford removed several trees from his property and over 800 cubic feet of dirt. The removal of dirt created a slope on Teasley’s property. Several engineers told Teasley that a retaining wall was necessary to keep the slope from eroding onto Jenkins’s property. An historian came to Teasley’s property and told him that an old historical burial site was located near the excavation of dirt and therefore the burial remains might have been disturbed.

¶ 3. On March 29, 2000, Teasley filed a complaint in the Circuit Court of Warren County alleging trespass. He named as defendants Pete Buford, individually, Pete Buford d/b/a Buford Construction Company Inc., Buford Construction Company, Inc., Grey Farris and Ernie Jenkins. Grey Farris was later dismissed with prejudice. The trial began on January 7, 2002. Before the questioning of the first witness, Teasley settled his claim with Jenkins for $5,000. The trial proceeded against Buford only and resulted in a jury verdict awarding Teasley $54,000 in compensatory damages on the trespass claim, $500 in special damages, and $5,500 in damages for intentional or negligent infliction of emotional distress.

¶4. After the verdict was rendered, Teasley filed a post-trial motion for an additur, attorney’s fees, expenses and expert fees. Buford filed post-trial motions for credit of settlement by co-defendant, remittitur and JNOV. The trial court issued an order denying Teasley’s motion for additur and attorney’s fees. The trial court issued another order denying Buford’s motion for JNOV and remittitur but granting his motion for credit of settlement. Pursuant to that order, the final judgment was amended to $55,000 to reflect the settlement. Both parties timely perfected their appeals with this Court for consideration of the issues.

LEGAL ANALYSIS

I. DID THE TRIAL COURT ERR BY DENYING TEASLEY’S MOTION FOR AN ADDITUR?

II. DID THE TRIAL COURT ERR BY DENYING BUFORD’S MOTION FOR REMITTITUR?

A. Additur

¶ 5. Teasley argues that the trial court erred by denying his post-trial motion for an additur because the jury verdict was influenced by bias, prejudice or passion and the damages awarded were contrary to the overwhelming weight of the credible evidence. The trial judge is given the authority to grant an additur by Mississippi Code Annotated Section 11-1-55 (Rev. 1991), which provides in part:

The supreme court or any other court of record in a case in which money damages were awarded may overrule a motion for new trial or affirm on direct or cross appeal, upon condition of an addi-tur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of the fact was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of the credible evidence ....

¶6. When reviewing the trial court’s decision to deny a motion for an additur, we are limited to an abuse of discretion standard. Burge v. Spiers, 856 So.2d 577, 579(¶ 6) (Miss.Ct.App.2003). The burden of proving damages is on the party who seeks the additur. Gaines v. K-Mart Corp., 860 So.2d 1214, 1220 (¶ 21) (Miss.2003). The evidence must be reviewed in a light most favorable to the party against the additur and must give that party the benefit of all favorable inferences drawn therefrom. McClatchy Planting Co. v. Harris, 807 So.2d 1266, 1270 (¶ 16) (Miss.Ct.App.2001). An addi-tur should be granted with great caution because it signifies “a judicial incursion into the traditional habitat of the jury.” Burge, 856 So.2d at 579—80(¶ 6) (citing Gibbs v. Banks, 527 So.2d 658, 659 (Miss.1988)). A jury award will not be set aside unless “so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous.” Rodgers v. Pascagoula Pub. Sch. Dist., 611 So.2d 942, 945 (Miss.1992).

¶ 7. In the case at bar, Buford admitted trespassing onto Teasley’s land and removing the dirt which caused the slope. What was disputed was the necessity of a retaining wall to keep the slope from eroding and the cost of such a wall. The jury heard conflicting testimony regarding the wall. Leland Hennington and Michael Taylor, both civil engineers and experts for Teasley, testified that the slope was eroding and needed a soldier pile retaining wall to stabilize it. They testified that the approximate cost of such a wall was between $1.2 and $2.2 million. The jury also heard from Eddie Templeton, a civil engineer and expert for Buford, who stated that erosion was not occurring on the slope and that the slope could be safely left alone with no retaining wall. Templeton stated that, if a wall was necessary, the two most cost-effective walls were the soldier beam lagging wall and the mechanically stabilized earth wall, which cost $56,000 and $38,000 respectively.

¶ 8. It is the jury who determines the weight of the testimony and the credibility of the witnesses at trial and it is the primary province of the jury to determine the amount of damages to award. Burge, 856 So.2d at 580(¶ 9). The trial judge stated the following in his order denying Teasley’s request for an additur:

That there was no evidence exhibited during or post-trial that would indicate that the jury was influenced by bias, prejudice, or passion. The evidence allowed during trial from the testimony of the experts for both the Plaintiff and the Defendant, gave a range of costs for the building of a retaining wall of $37,200.00 to in excess of $1,000,000.00. Therefore the jury verdict of $54,000.00 in damages for the trespass was supported by testimony offered at trial.

We do not find that the trial court abused its discretion by denying Teasley’s motion for an additur because the verdict was supported by the evidence and in no way evinced bias, prejudice or passion on the part of the jury.

B. Remittitur

¶ 9. Buford cross-appeals and asserts that the trial court erred by denying his motion for a remittitur. Buford argues that a remittitur was proper because the verdict was contrary to the overwhelming weight of credible evidence and against the controlling law.

¶ 10. The standard of review of the trial court’s denial of a remittitur is the same as the standard for an additur. Whitten v. Cox, 799 So.2d 1,18 (¶ 45) (Miss 2001). On appeal, we will not reverse the decision of the trial court unless it amounts to an abuse of discretion. Burge, 856 So.2d at 580(¶ 6). As we stated regarding the trial court’s denial of Teasley’s motion for an additur, the jury award will not be set aside unless it is deemed outrageous and unreasonable. The jury heard the testimony of the experts from both sides regarding the need for a retaining wall and the costs of such structures. Buford’s own expert, Eddie Templeton, testified that the cheapest retaining wall would cost between $38,000 and $56,000. As the trier of fact, the jury chose to award Teasley $54,000 for the trespass claim.

¶ 11. The trial judge stated the following is his order denying Buford’s remitti-tur request: “That there was no evidence exhibited during or post-trial that would indicate that the jury was influenced by bias, prejudice or passion. There was also evidence given by the Defendant’s expert to support the $54,000 verdict on damages for the trespass.... ” We will not disturb the finding of the jury in this case because the trial court did not abuse its discretion by ruling that the verdict of $54,000 was supported by the evidence and in no way evinced bias, prejudice or passion on the part of the jury.

III. DID THE TRIAL COURT ERR BY GRANTING BUFORD’S MOTION FOR A $5,000 CREDIT DUE TO TEASLEY’S SETTLEMENT WITH ERNIE JENKINS?

¶ 12. Teasley asserts that the trial court erred by granting Buford’s motion for a $5,000 credit of settlement by a co-defendant. Ernie Jenkins and Teasley reached a settlement agreement before the trial ended. The terms and amount of the settlement were announced to the Court in chambers and the jury was instructed that Jenkins was no longer a party to the case. The amount of the settlement was never disclosed to the jury. After the jury returned its award for damages in the amount of $60,000, the trial judge credited Buford for the $5,000 settlement with Jenkins and lowered the award to $55,000.

¶ 13. Our supreme court has specifically authorized the trial judge to take such action and adjust the judgment by the amount of the settlement. Pickering v. Industria Masina I Traktora, 740 So.2d 836, 841 (¶ 11) (Miss.1999). In that case, the court stated:

This Court has announced an acceptable procedure to be used to determine the damages due a plaintiff where co-defendants are involved and one co-defendant has settled with the plaintiff. That procedure allows the jury to be informed of the existence of a settlement but not the amount of settlement (if settlement occurs after the trial begins then it will be necessary to inform the jury why the defendants are no longer present). Whittley v. City of Meridian, 530 So.2d 1341, 1346 (Miss.1988). If the jury returns a judgment in excess of the settlement the judge can simply adjust the judgment by the amount of the settlement. Id.

Pickering, 740 So.2d at 841 (¶ 11). According to Estate of Hunter v. General Motors Corp., 729 So.2d 1264, 1276 (¶ 44) (Miss.1999), settling tortfeasors are to be included in allocations of fault based on comparative negligence principles. In this case, no fault was allocated to the settling party, Jenkins. Neither party raises the issue of failure to allocate fault to Jenkins. The parties did not request an allocation at trial. As such, our review is limited to cases that pre-date the adoption of Mississippi Code Annotated Section 85-5-7 (Rev. 1999) which provides that with several exceptions, tort liability is several rather than joint and several, meaning that a defendant is liable to the plaintiff for damages only in proportion to his percentage of fault.

¶ 14. The trial judge did not err by granting Buford credit for the $5,000 settlement with Jenkins. The jury found Teasle/s total damages as $60,000 and the trial judge properly reduced the verdict to reflect the $5,000 Teasley had already received from Jenkins.

IV. DID THE TRIAL COURT ERR BY REFUSING TO SUBMIT THE ISSUE OF PUNITIVE DAMAGES TO THE JURY?

¶ 15. Teasley argues that the trial court erred by refusing to submit the issue of punitive damages to the jury. When this Court reviews a trial court’s decision of whether to submit the issue of punitive damages to the jury, we employ an abuse of discretion standard of review. Doe v. Salvation Army, 835 So.2d 76, 81 (¶ 17) (Miss.2003). A claimant does not have an automatic right to punitive damages. Id. at 79(¶ 7). Mississippi Code Annotated Section 11-1-65 (Supp.2003) states that if specific criteria are met, the trial court will then determine if the issue of punitive damages may be submitted to the jury. The statute states the following in pertinent part:

(1) In any action in which punitive damages are sought:
(a) Punitive damages may not be awarded if the claimant does not prove by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.
(b) In any action in which the claimant seeks an award of punitive damages, the trier of fact shall first determine whether compensatory damages are to be awarded and in what amount, before addressing any issues related to punitive damages.
(c) If, but only if, an award of compensatory damages has been made against a party, the court shall promptly commence an evidentiary hearing before the same trier of fact to determine whether punitive damages may be considered.
(d) The court shall determine whether the issue of punitive damages may be submitted to the trier of fact; and, if so, the trier of fact shall determine whether to award punitive damages and in what amount....

Miss.Code Ann. § 11-1-65 (Supp.2003).

¶ 16. The statute clearly grants the trial court the authority, as a gate-keeper, to initially determine whether the facts presented merit submitting the issue to the trier of fact. Id. The trial court when determining whether the issue of punitive damages should be submitted to the jury should decide if, under the totality of the circumstances, a reasonable hypothetical trier of fact could have found either malice or gross negligence or reckless disregard. Summers v. St. Andrew’s Episcopal Sch., Inc., 759 So.2d 1203, 1215 (¶ 53) (Miss.2000). In the ease of a trespass, punitive damages may be awarded if the proof shows that the trespass was willful, grossly negligent or wanton. Walker v. Murphree, 722 So.2d 1277, 1283 (¶ 25) (Miss.Ct.App.1998).

¶ 17. In the case sub judice, Teasley argues that the issue of punitive damages should have been submitted to the jury. As the claimant, Teasley was required to prove by clear and convincing evidence that Buford’s actions amounted to “actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or actual fraud.” Miss.Code Ann. § ll-l-65(l)(a) (Supp.2003). After reviewing the evidence presented, the trial judge noted a complete absence of a showing of any willful or wanton disregard by Buford for the rights of Teasley. It was due to this absence of proof that the trial judge denied Teasley’s request for punitive damages.

¶ 18. A review of the record shows that Buford thought the property belonged to Jenkins not Teasley. Buford had permission from Jenkins to enter the property he thought was owned by Jenkins. Once Buford was aware of the trespass, he did not enter Teasley’s property again. We find that the trial court did not err by refusing to submit the issue of punitive damages to the jury.

V. DID THE TRIAL COURT ERR BY GRANTING OR REFUSING CERTAIN JURY INSTRUCTIONS?

¶ 19. When reviewing jury instructions on appeal, we must consider the instructions as a whole with no one instruction read alone or taken out of context. Haggerty v. Foster, 838 So.2d 948, 953(¶ 4) (Miss.2002). When the instructions read as a whole “fairly announce the law of the case and create no injustice, no reversible error will be found.” Whitten, 799 So.2d at 16 (¶ 39). The trial judge has discretion in granting jury instructions. Southland Enter. Inc. v. Newton County, 838 So.2d 286, 289(¶ 9) (Miss.2003).

A. Destruction of Trees and the Statutory Penalty for Destruction of Trees

¶ 20. Teasley argues that the trial court erred by refusing his proposed jury instructions on the issues of destruction of trees and the statutory penalty for destruction of trees. Mississippi Code Annotated Section 95-5-10(1) (Rev.1994) provides the following with regard to cutting trees without the consent of the owner:

(1) If any person shall cut down, deaden, destroy or take away any tree without the consent of the owner of such tree, such person shall pay to the owner of such tree a sum equal to double the fair market value of the tree cut down, deadened, destroyed or taken away, together with the reasonable cost of reforestation, which cost shall not exceed Two Hundred Fifty Dollars ($250.00) per acre.

After hearing the evidence presented by Teasley, the trial judge ruled that the statutory issue of destruction of trees would not go before the jury because Teasley did not provide enough specificity on the number of trees cut by Buford or the fair market value of the trees. Teasley testified that he thought Buford cut approximately seventy-five trees, but admitted that was a guess. The way he ascertained the approximate number of trees cut was by measuring off the tract of land where the trees were located. No precise number was presented. Teasley was also uncertain regarding the size of the trees cut by Buford. He stated that the diameters of the trees ranged from three inches to eighteen inches. No testimony was provided on the fair market value of the trees cut.

¶ 21. As the plaintiff, Teasley bore the burden of showing how many trees were cut before he could recover the statutory penalty for the destruction of trees. Kelley v. Welborn, 217 Miss. 16, 63 So.2d 413, 416 (1953). A party has a right to have his theory of the case presented to the jury if there is credible evidence which supports the theory. Nolan v. Brantley, 767 So.2d 234, 240-41 (¶ 16) (Miss.Ct.App.2000). As such, the trial court did not err by refusing Teasley’s instruction on the statutory destruction of trees.

B. Nuisance and Special Damages

¶22. The trial court determined that the jury instruction on nuisance would most likely confuse the jury so the instruction was refused. Throughout his pleadings and the trial, Teasley presented no claims or evidence of nuisance. It was only at the jury instruction phase of the trial that Teasley wanted the issue of nuisance brought before the jury. According to Nolan, the trial judge was not obligated to grant an instruction which was not supported by the evidence. Nolan, 767 So.2d at 240-41 (¶ 16).

¶23. The trial judge granted Teasley’s instruction regarding special damages proximately caused by Buford’s trespass. Buford cross-appeals and argues that the trial court erred by granting Teasley’s jury instruction regarding special damages because the instruction was based on the case of City of Jackson v. Keane, 502 So.2d 1185 (Miss.1987), a nuisance case. Instruction C-2 reads:

Members of the Jury:

The Court instructs the jury that in addition to the damages to the Plaintiffs property, the Plaintiff may also be entitled to Special Damages if proven by a preponderance of the evidence. These Special Damages, if any, are damages separate, distinct, and independent of the damage to the Plaintiffs property. If from the preponderance of the evidence you find that as a direct and proximate result of the trespass of the Defendants Buford Construction and Pete Buford, the Plaintiff Teasley suffered in the past Special Damages you may consider the following elements:
(1) any annoyance, discomfort, or inconvenience; and
(2) any physical sickness suffered by Plaintiff Teasley as a direct proximate result of the trespass of the Defendants Buford Construction and Pete Buford. If the Plaintiff has failed to prove by a preponderance of the evidence any of the elements above then you shall find for the Defendants as to the issue of Special Damages.

The court in Keane held:

In addition [to diminution in value], landowners may recover special damages proved. These special or incidental damages are elements of damage separate, distinct, and independent of the depreciation of the value of the property or of the depreciation of the rental or usable value of the property. Included in the category of special or incidental damages are annoyance, discomfort, inconvenience, and sickness.

Keane, 502 So.2d at 1187 (citing City of Oxford v. Spears, 228 Miss. 433, 87 So.2d 914, 916 (1956)). A review of the record and the wording of jury instruction C-2 shows that the trial judge relied on Keane when making his ruling. The instruction tracks the wording of Keane by referring to special damages due to annoyance, discomfort, inconvenience and physical sickness. The Spears ease which Keane cites as authority on this point was a nuisance case where the court held that if a defendant maintains a nuisance by polluting a stream and thereby renders the land unfit or less valuable, the measure of damages to the owner of the land is diminution in market value for a permanent injury or diminution in rental or useable value for a temporary injury. Spears, 87 So.2d at 916. In Spears, the court continued by stating that the proof did not show a permanent injury but an abatable nuisance; therefore, damages should be limited to the depreciation in rental value and any special damages that are proven. Id.

¶ 24. Unlike the cases of Spears and Keane, Teasley offered no proof or claim of nuisance by Buford. Specifically, Teas-ley’s claim did not involve run-off or pollution of a stream but trespass. Spears and Keane allow special damages specifically for nuisance. No authority was cited to the trial court and to this Court regarding special damages available on a trespass claim. The trial court refused the jury instruction on nuisance due to a lack of proof and jury confusion and therefore should have also refused the instruction on special damages based solely upon Keane.

C. Reforestation

¶ 25. The trial court did not err by refusing Teasley’s instruction on reforestation of trees. As we stated above, Teasley did not meet his burden of proof regarding Mississippi Code Annotated Section 95-5-10. Specifically, Teasley did not offer any proof on how many acres of trees were cut. The statute clearly states that reasonable reforestation costs may be granted up to $250 per acre. The jury was not presented with any evidence regarding the size of the area where the trees were cut. This statute, which is penal in nature, must be strictly construed and applied in the clearest of cases. McCorkle v. LouMiss Timber Co., 760 So.2d 845, 853 (¶ 31) (Miss.Ct.App.2000). Due to the lack of evidence on this point, the trial court did not err by refusing Teasley’s instructions on reforestation.

D. Intentional and Negligent Infliction of Emotional Distress

¶ 26. Buford cross-appeals and argues that the trial court erred by granting Teasley’s instructions on negligent and intentional infliction of emotional distress. Buford’s argument is that there was not enough proof submitted at trial on the issue of emotional distress to warrant a jury instruction on that issue, specifically that Teasley failed to prove demonstrable harm. A review of the jury instructions given reveals that they were correct statements of law regarding negligent and intentional infliction of emotional distress. Buford’s argument focuses on the proof offered by Teasley which goes to the sufficiency of the evidence, not the language of the jury instruction. See Whitten, 799 So.2d at 17 (¶¶ 41-12). Because the instructions were correct statements of the law which presented the jury with the correct legal standards, the trial judge did not err by granting the instructions.

VI. DID THE TRIAL COURT ERR BY DENYING TEASLEY’S REQUEST FOR ATTORNEY’S FEES, EXPENSES AND EXPERT FEES?

¶ 27. Teasley asserts that the trial court erred by denying his post-trial request for attorney’s fees and expenses. The trial court’s decision regarding attorney’s fees is subject to an abuse of discretion standard of review. Harrison v. McMillan, 828 So.2d 756, 765 (1132) (Miss.2002). Teasley premised his request for attorney’s fees and expenses on Mississippi Code Annotated Section 95-5-10(3) (Rev.1994) which states: “All reasonable expert witness fees and attorney’s fees shall be assessed as court costs in the discretion of the court.” In his order denying the request for fees and expenses the trial judge stated:

This statute [95-5-10] also allows the granting of attorney’s fees to the Plaintiff if liability is found. The Court at trial ruled that the evidence of how many trees were cut and the value of the trees cut lacked sufficient specificity in order for the question of liability under this statute to go to the jury for their consideration. Therefore, since the jury did not use this statute in their determination of liability, the request for attorney’s fees pursuant to this statute is inapplicable.

Because the statute upon which Teasley relied as the basis of his request for fees and expenses was ruled inapplicable based on insufficient evidence, the trial court did not abuse its discretion by denying Teas-ley’s request for fees and expenses based on the statute.

VII. DID THE TRIAL COURT ERR BY DENYING BUFORD’S MOTION FOR JNOV BECAUSE THE JURY AWARD OF $54,000 FOR THE TRESPASS WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND CONTRARY TO THE CONTROLLING LAW OF THE CASE?

¶ 28. Buford asserts that the trial court erred by denying his motion for JNOV because the jury award of $54,000 for the trespass was against the overwhelming weight of the evidence and contrary to the controlling law of the case. The trial court denied Buford’s motion stating:

That in order for this Court to grant a Judgment Notwithstanding the Verdict the Court must determine whether there was sufficient credible evidence at trial to support the verdict of the jury, giving the non-moving party all favorable inferences that can be drawn from the evidence. The Court finds that there was sufficient credible evidence to support the verdict of the jury, therefore the Motion for JNOV is denied.

The standard of review for the denial of a JNOV and directed verdict are the same. Hopkins v. Schaeffer, 840 So.2d 737, 738(¶ 6) (Miss.Ct.App.2003). In Hopkins, this Court held:

We are required to view the evidence in a light most favorable to the non-moving party, and if the facts are so overwhelmingly in favor of the moving party that a reasonable juror could not have agreed with the verdict at hand, we must reverse. Sperry-New Holland, 617 So.2d at 252. If there is substantial evidence, however, in support of the verdict, such that a reasonable person may have reached different conclusions, we must affirm. Id.

Hopkins, 840 So.2d at 738(¶ 6). The above standard of review is predicated on the fact that the trial judge employed the correct law. Jernigan v. Humphrey, 815 So.2d 1149, 1152 (¶ 12) (Miss.2002).

¶ 29. Our supreme court reiterated the rules for determining damages for injury to real property in Harrison v. McMillan, 828 So.2d 756, 769 (¶ 43) (Miss.2002). The court stated that the general rule for the measure of damages in an action for permanent injury to land where there is no willful trespass is the difference in value of the property before and after the damage to the premises. Id. This “before-and-after” rule has been repeatedly cited. Bynum v. Mandrel Indus., Inc., 241 So.2d 629, 634 (Miss.1970); Chevron Oil Co. v. Snellgrove, 253 Miss. 356, 175 So.2d 471, 474 (1965); Waggener v. Leggett, 246 Miss. 505, 150 So.2d 529, 531 (1963); Union Producing Co. v. Pittman, 245 Miss. 427, 146 So.2d 553, 556 (1962). In Sun Oil Company v. Nunnery, 251 Miss. 631, 170 So.2d 24, 31 (1964), the court held that if the injury to the property is permanent in nature, the proper measure of damages is usually the difference between the fair market value of the entire tract before the injury and the fair market value after the injury.

¶ 30. However, the before-and-after rule is not a “hard and fast rule” nor is it “inflexible” and may not be applicable under all circumstances. Harrison, 828 So.2d at 770 (¶ 43) (citing Bynum, 241 So.2d at 634-35). In Bynum, the court stated the following:

It [the before-and-after rule] will not apply where there is a more definite, equitable, and accurate way by which the damages may be determined. Where the thing which is destroyed or injured, although a part of, or attached to, the realty, has a distinct value without reference to the realty on which it stands or from which it grows, the recovery is for the value or depreciation of value of the thing destroyed or injured, and not for the difference in the value of the land before and after the destruction; the recovery may be the value of the thing destroyed or the cost of its repair.

Bynum, 241 So.2d at 634-35.

¶ 31. The trial judge gave the following instruction to the jury regarding the measure of damages for the trespass:

The Court instructs you, that if you find Plaintiff Mike Teasley, has shown by a preponderance of the evidence that his property has been damaged by the acts of trespass by Buford, then you must award damages to Mike Teasley for the smaller amount of (1) or (2) below:
(1) The difference in the value of the land before the injury and the value after the injury; or
(2) The cost of restoring the land to its former condition.

There was testimony presented at trial that over 800 cubic feet of dirt was wrongfully removed from Teasley’s property creating a slope with a height of between seventeen and twenty-three feet in various places. The dirt was cut at an angle as opposed to vertically, making the slope unstable. Two civil engineers testified that the slope would eventually fail and that in order to stabilize the dirt and prevent further erosion, a retaining wall should be constructed. The two experts for Teasley testified that the estimated cost of such a structure was between $1 and $2 million. This was Teasley’s evidence regarding cost of restoration. Buford produced conflicting evidence regarding cost of restoration. His expert testified that the slope could be “left as is” but that if a retaining wall was constructed, the approximate costs of a suitable structure would be in the range of $38,000 to $56,000.

¶ 32. Both parties provided evidence regarding diminution in value. Teasley testified that he paid $220,000 for the property in 1998. Teasley’s expert, Lamar Tate, an environmental auditor, testified that the Teasley property had a negative environmental value because the cost of fixing the environmental problems on the property would be more than the property was worth. Buford’s expert, Doug Upchurch, a real estate appraiser, testified that Teasley’s property suffered a decrease in fair market value of $2,000. The jury was presented with conflicting evidence on the issue of damages, both for diminution in value and cost of restoration. The jury heard all the testimony regarding damages and came up with a figure of $54,000 in compensatory damages. The proper amount of damages is a question of fact. Boyd v. Smith, 390 So.2d 994, 1000 (Miss.1980). The amount of damages awarded is within the province of the jury. Herring v. Poirrier, 797 So.2d 797, 809 (¶ 41) (Miss.2000). The trial court did not err by denying Buford’s motion for JNOV because the verdict was supported by substantial evidence.

¶ 33. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY IS AFFIRMED ON DIRECT APPEAL AS TO $54,000 IN COMPENSATORY DAMAGES FOR TRESPASS, $5,500 FOR INTENTIONAL OR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS AND THE $5,000 CREDIT FOR SETTLEMENT AND IS REVERSED AND RENDERED ON DIRECT APPEAL AS TO THE $500 FOR SPECIAL DAMAGES AND IS AFFIRMED ON CROSS-APPEAL. COSTS ARE DIVIDED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE.

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


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    Joy TIMMS, Appellant, v. Steve PEARSON, Appellee.
    No. 2003-CA-00106-COA.
    Court of Appeals of Mississippi.
    June 29, 2004.

      Luanne Stark Thompson, Aberdeen, attorney for appellant.
    Steve Pearson, Appellee, pro se.
    Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   CHANDLER, J.,

for the Court.

¶ 1. Joy Timms filed a complaint in the Chancery Court of Monroe County against Steve Pearson, a general contractor who had performed construction work on Timms’s house. The chancery court found that Pearson had materially breached the construction contract and terminated the contract, but ordered Timms to pay certain outstanding amounts to subcontractors. Timms appeals, arguing that the chancery court erroneously ordered her to pay the subcontractors. We agree, and reverse that portion of the order requiring Timms to pay the subcontractors.

FACTS

¶ 2. Timms’s home in Smithville, Mississippi was partially destroyed by a fire. She contracted with Pearson to repair the fire damage and to add additional square footage to the existing house, including a master bedroom and a double car garage. During negotiations, Pearson submitted several proposals and the parties finally agreed for Pearson to undertake the project. The agreement required Timms to make a payment after the completion of each stage of the construction.

¶ 3. Pearson began work on the house on or about August 23, 2000. Timms inspected the project from time to time. In September, Timms paid Pearson $3,600 for demolition and $12,000 for the foundation. On October 16, 2000, Timms paid Pearson $17,000 for the black-in stage, which included roofing, the application of black wallboard to the exterior walls, and other tasks. After October 16, the condition of the house caused Timms to become concerned about the quality of Pearson’s work and the timeliness of his progress. Timms asked Pearson to stop work on December 16, 2000. On December 24, 2000, a building inspector cited numerous problems with the condition of the construction project.

¶ 4. Pearson filed a notice of construction lien, an amended notice of construction lien, and a lis pendens notice regarding funds owed for materials and services used in the project. Timms filed a complaint against Pearson requesting cancellation of the construction contract and the return of a set of house plans. Pearson filed an answer and counterclaim for the amount he claimed that Timms owed for materials and services rendered. Pearson submitted that the amount owed was $14,609.89.

¶ 5. After a hearing, the chancellor found that a proposal dated August 10, 2000, that was signed by both parties constituted the final agreement of the parties. That agreement provided that the price for the construction was $68,420, and that construction was to be completed within 90 days. The chancellor found that Pearson had failed to complete the project within 120 days and Pearson admitted that it would take at least an additional thirty days to complete. The court also found that the quality of work performed by Pearson did not meet the standards imposed for construction in the Smithville area. The chancellor found that Pearson’s untimely performance and low quality performance constituted material breaches of the construction contract, and that the contract should be terminated. The chancellor cited testimony that the cost to repair the defects and finish the project was $89,064.63, plus $1,800 to complete the heating and air conditioning. The court cancelled the notice of construction lien and lis pendens notice which Pearson had filed against Timms’s property.

¶ 6. The court also found that there were four outstanding bills for materials and services that had gone into the construction project and for materials that had been specially ordered and were awaiting pickup at the providers’ places of business. The bills were in the amounts of $4,200 for Fowlkes Plumbing, $2,200 for R & B Services, $2,182.46 for C & D Lumber Company, and $708.70 for Smithville Hardware Co., for a total of $9,291.16. The chancellor found that Timms “should be required” to pay the bills, ordered her to do so, and absolved Pearson of responsibility for the bills. The court denied all other relief requested. On appeal, Timms argues that the chancellor erroneously ordered her to pay the four bills.

LAW AND ANALYSIS

¶ 7. The sole issue on appeal is whether the chancellor erroneously ordered Timms to pay the subcontractors. We may not reverse the decision of the chancellor unless that decision was manifestly wrong, clearly erroneous, or applied an incorrect legal standard. Shirley v. Christian Episcopal Methodist Church, 748 So.2d 672, 674(¶ 9) (Miss.1999). The chancellor found that Timms had paid Pearson a total of $32,600 during the period between the commencement of the project and Timms’s request that Pearson cease work. Notably, the chancellor made no finding as to what amount of money, if any, that Timms actually owed Pearson for the work he had performed. The chancellor’s order for Timms to pay the subcontractors’ bills was based solely upon the finding that the bills remained unpaid.

¶ 8. At common law, subcontractors are common creditors of the contractor for whom they agree to provide materials or services. Jones Supply Co. v. Ishee, 249 Miss. 515, 527, 163 So.2d 470, 475 (1964). No privity exists between a subcontractor and an owner. Corrugated Indus., Inc. v. Chattanooga Glass Co., 317 So.2d 43, 47 (Miss.1975). But Mississippi Code Annotated section 85-7-181 (Rev.1999) prescribes a remedy against the owner for a subcontractor “who may have furnished materials used in the erection, construction, alteration, or repair of any house” and who is not paid by the contractor. To exercise the remedy, the unpaid subcontractor must serve written notice of the debt upon the property owner, at which point “the amount that may be due upon the date of the service of such notice by such owner to the contractor or master workman, shall be bound in the hands of such owner for the payment in full, or if insufficient then pro rata, of all sums due such person.... ” Miss.Code Ann. § 85-7-181 (Rev.1999). In other words, when the unpaid subcontractor gives written notice (commonly termed a “stop notice”) to the owner, the subcontractor becomes entitled to payment from the owner up to the amount in which the owner is indebted to the general contractor as of the date the notice is served. Id.

¶ 9. The service of the stop notice invokes the subcontractor’s statutory remedy against the owner. Id. Absent such notice, an owner has no obligation to a subcontractor who has provided materials or services pursuant to an agreement with a contractor. Corrugated Indus. Inc., 317 So.2d at 47. And, if a subcontractor serves a stop notice after the owner has paid the contractor the full amount due under the contract, the owner is not liable to the subcontractor. Id.; Miss.Code Ann. § 85-7-181.

¶ 10. In the present case, Pearson submitted four receipts for materials and services from Fowlkes Plumbing, R & B Services, C & D Lumber Company, and Smithville Hardware Co. The chancellor referenced the four suppliers as subcontractors and did not make any finding that the suppliers had any contractual relationship with Timms. That the four suppliers were subcontractors is supported by the evidence; all four suppliers’ bills show either Steve Pearson or Pearson Construction as the sole purchaser. See Engle Acoustic & Tile, Inc. v. Grenfell, 223 So.2d 613, 618 (Miss.1969).

¶ 11. It appears from the record that none of the four subcontractors ever served Timms with a stop notice pursuant to § 85-7-181. It is clear that, even had the subcontractors sued Timms, they would have been unable to recover due to their failure to fulfill the statutory prerequisite of serving a stop notice. Corrugated Indus., 317 So.2d at 47. As the four subcontractors never availed themselves of their statutory right of recovery, they stand as general creditors of Pearson and have no remedy against Timms. Id. Because the subcontractors, having slept on their rights, could not have recovered from Timms had they brought suit themselves, it was error for the chancellor to award them recovery in a suit brought by the general contractor, notwithstanding that the subcontractors were not parties in this case.

¶ 12. Because we may affirm a chancellor’s decision that reached the right result but for the wrong reason, it may be argued that the correct appellate resolution of this matter would be to consider the chancellor’s order for Timms to pay $9,291.16 as a finding that Timms remained indebted to Pearson in that amount for the work he had performed. Thus, we might reverse and render a decision awarding $9,291.16 directly to Pearson. We are unable to reach that result. The chancellor ordered Timms to pay the $9,291.16 on the sole ground that the bills remained outstanding. The chancellor never expressly found what amount, if any, Timms owed Pearson for the work he had performed. See Ladner v. Manuel, 744 So.2d 390, 393-94 (¶ 12-14) (Miss.Ct.App.1999) (discussing the right of a breaching contractor to recover for work performed prior to the breach). It was uncontradict-ed that Timms had already paid Pearson $32,600, and the testimony of Timms, Pearson and other witnesses conflicted as to whether or not that amount fully compensated Pearson for the work he had performed on Timms’s property. On this record, an order for Timms to pay Pearson the amount of the subcontractors’ outstanding bills might result in double or over payment by Timms for the subcontractors’ work.

¶ 13. We reverse that part of the decision of the chancery court ordering Timms to pay the four subcontractors. As the other portions of the chancellor’s decision were not appealed, those portions remain undisturbed by this judgment.

¶ 14. THE JUDGMENT OF THE CHANCERY COURT OF MONROE COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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

      . Through informal means, it has come to the attention of this Court that Pearson died after this appeal was perfected. Nonetheless, we review the merits of this appeal because the procedures for substitution of a party under Mississippi Rule of Appellate Procedure 43(a) have not been invoked and Pearson’s death does not foreclose our ability to grant the relief requested.


author: THOMAS, J.,

text:
    Linda Ann Bell SMITH, Appellant, v. Francis BELL, III, Appellee.
    No. 2002-CA-02020-COA.
    Court of Appeals of Mississippi.
    June 29, 2004.

      Linda Ann Smith, Appellant, pro se.
    Jeffrey A. Levingston, attorney for appellant.
    Robert G. Johnston, Cleveland, attorney for appellee.
    Before KING, C.J., THOMAS and MYERS, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Francis Bell, III filed a complaint to determine heirship against Linda Ann Bell Smith and Fragapani Bell. The Boliver County Chancery Court adjudicated Francis Bell, III to be an heir at law of the deceased, Francis Bell, Jr. Aggrieved, Linda Ann Bell Smith asserts the following issues on appeal:

I. THE LOWER COURT COMMITTED MANIFEST ERROR BY RULING THAT FRANCIS BELL, III IS THE BIOLOGICAL CHILD OF FRANCIS BELL, JR.
II. THE TRIAL COURT APPLIED AN ERRONEOUS EVIDENTIARY STANDARD BY FINDING THAT FRANCIS BELL, III WAS THE CHILD OF FRANCIS BELL, JR. BY CLEAR AND CONVINCING EVIDENCE, AS OPPOSED TO DETERMINING THE CASE BY APPLYING THE STANDARD OF BEYOND A REASONABLE DOUBT.

Finding no error, we affirm.

FACTS

¶ 2. Francis Bell, III was born on February 27, 1948 to Lilly May Moore. Lilly Moore married James Ross, Sr. a few months before Francis Bell, III was born, and Francis Bell, III was named James Ross, Jr. at birth and according to Lilly Moore, the birth certificate for Francis Bell, III shows James Ross as the father. Lilly Moore had previously been the girlfriend of Francis Bell, Jr. When Francis Bell, III was approximately three years old, he was taken into the home of Francis Bell, Sr. and his wife. At the time Francis Bell, III was taken in, Francis Bell, Jr. was also living with Francis Bell, Sr.

¶ 3. Francis Bell, Jr. married Mattie May Henson Bell a few years later and moved into his own house on the family farm approximately three miles away and had two children, Linda Ann Bell Smith, born on February 25, 1951, and Fragapani Bell, born on August 26, 1958. Linda and Fragapani lived with their father and mother until Linda, the appellant, was approximately thirteen at which time her parents were divorced. She and Fragapa-ni then moved in with their grandparents, Francis Bell, Sr. and his wife with whom Francis Bell, III also lived.

¶ 4. Francis Bell, III filed a complaint to determine heirship in the Chancery Court of Bolivar County against his alleged half-siblings, Linda and Fragapani, and against two other putative children. The other two putative children filed informal responses which were dismissed as being time barred and they did not appeal. Linda Ann Bell Smith answered. Fragapani Bell filed a pro se answer but did not appear at trial and took no part, as he was incarcerated at the time in the custody of the Mississippi Department of Corrections.

¶ 5. At trial, Francis Bell, III testified that he grew up in Mound Bayou, Mississippi, and that Francis Bell, Jr. was his father. He testified that his earliest memories were living at Francis Bell, Sr.’s home with Francis Bell, Jr. Francis Bell, III testified regarding his relationship with Linda and Fragapani, stating that they grew up together, played together, ate together, went to Wanderers’ Home Baptist Church together, shared items, and that they had some fights and scuffles as siblings would. He testified that he called Francis Bell, Jr., “Daddy” and that Francis Bell, Jr. would take him riding and shopping and that he received treatment identical to that given to Linda and Fraga-pani. Francis Bell, III entered into evidence an assessment against him, Linda, and Fragapani with reference to repairs and expenses of the farm inherited from their grandfather, Francis Bell, Sr. Francis Bell, III also stated that he attended all but one family reunion and sat with Linda at Francis Bell, Jr.’s funeral. He testified that he was willing to submit to a DNA test but could not afford one. On cross-examination, Francis Bell, III admitted that he did not have his birth certificate but was told it did state that James Ross, Sr. was his father. He also stated that Francis Bell, Jr. came to visit him at his home in Illinois. Following cross-examination, the trial court questioned Francis Bell, III further about his relationship with Francis Bell, Jr.

¶ 6. Lilly May Moore testified that Francis Bell, III was the son of her and Francis Bell, Jr. She testified that she moved to Wisconsin and agreed that Francis Bell, Jr. could raise the child. When she returned three years later she found Francis Bell, III living with his grandparents. Lilly also testified that Francis Bell, Jr. had papers made out by a lawyer in Mound Bayou named B.A. Green, who was at least called “Judge” Green, to legally change the child’s name from James Ross, Jr. to Francis Bell, III. These papers were not presented into evidence. Francis Bell, Ill’s half brother, Lawrence Ross, also testified on Francis Bell, Ill’s behalf, stating that he often visited Francis Bell, III at home with the Bell family and that the relationship between Francis Bell, Jr. and Francis Bell, III was a father-son relationship.

¶ 7. Linda Bell Smith testified that only she and Fragapani lived with their father, Francis Bell, Jr. She testified that Francis Bell, Jr. did not acknowledge Francis Bell, IIL as a son and that Francis Bell, III lived with her grandparents. She testified that her father was often mean to Francis Bell, III and that Francis Bell, Jr. did not go on family trips or vacations with her, her father, and Fragapani. She expressed animosity toward several aunts who had taken sides against her with Francis Bell, III. Smith testified in her opinion, Francis Bell, III was not related to her even though he had the name Francis Bell, III.

¶ 8. Atevia Battle, a sister of Francis Bell, Jr., testified that Francis Bell, III lived with her parents and not with Francis Bell, Jr., and that Francis Bell, Jr. often treated Francis Bell, III harshly. She testified there was no relationship between Linda and Fragapani and Francis Bell, III, and that they only lived together after Francis Bell, Jr.’s divorce, which she said was when Linda was ten or eleven years old. Battle did testify that Francis Bell, III attended Francis Bell, Sr.’s funeral and was treated like family and that Francis Bell, Sr. treated him like the rest of the family before his death.

¶ 9. Allie Bell Jacox and Bernice Walker, two other sisters of Francis Bell, Jr., testified on behalf of Francis Bell, III, stating that according to family representations, Francis Bell, Jr. was the father of Francis Bell, III. They testified that Francis Bell, Jr. had dated Lilly Moore in high school and the rumor was that she had been pregnant with Francis Bell, Jr.’s child. According to his sisters, Francis Bell, Jr. wanted to raise his child and called him “Little Jr.”. Although Francis Bell, Jr. was often mean to others, he was good to Francis Bell, III. Allie Bell Jacox identified numerous family photographs which showed Francis Bell, III with other members of the family including Linda and Fragapani.

¶ 10. Francis Bell, III also entered other documentary evidence including a copy of the obituary for Francis Bell, Jr. which listed him as a survivor, as well as school records that listed his father as “Francis Bell,” and military records that listed his own name as Francis Bell, III. At the conclusion of the trial, the court entered a judgment stating that he was completely satisfied, “beyond clear and convincing evidence,” that the father of Francis Bell, III was Francis Bell, Jr.

ANALYSIS

I. THE LOWER COURT COMMITTED MANIFEST ERROR BY RULING THAT FRANCIS BELL, III IS THE BIOLOGICAL CHILD OF FRANCIS BELL, JR.

II. THE TRIAL COURT APPLIED AN ERRONEOUS EVIDENTIARY STANDARD BY FINDING THAT FRANCIS BELL, III WAS THE CHILD OF FRANCIS BELL, JR. BY CLEAR AND CONVINCING EVIDENCE, AS OPPOSED TO DETERMINING THE CASE BY APPLYING THE STANDARD OF BEYOND A REASONABLE DOUBT.

¶ 11. Linda Ann Smith combines both issues into one argument in her brief. We will likewise examine them together. Smith asserts that the trial court erred in ruling that Francis Bell, III is the biological child of Francis Bell, Jr, and that an erroneous evidentiary standard of clear and convincing evidence was applied rather than determining the case by applying the standard of beyond a reasonable doubt. Appellee Francis Bell, III argues that Smith failed to cite any authority in regard to her first issue arguing solely on the facts presented to the lower court. Bell also asserts that Smith did not raise the evidentiary standard issue before the lower court and it is therefore not properly before this Court.

¶ 12. “This Court will not disturb the chancellor’s opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996). Where there is substantial evidence to support a chancellor’s findings, this Court is without the authority to disturb his conclusions, although it might have found otherwise as an original matter. In re Estate of Harris, 539 So.2d 1040, 1043 (Miss.1989). Additionally, where the chancellor has made no specific findings, we will proceed on the assumption that he resolved all such fact issues in favor of the appellee. Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990). The chancellor’s decision must be upheld unless it is found to be contrary to the weight of the evidence or if it is manifestly wrong. O.J. Stanton and Co. v. Mississippi State Highway Comm’n, 370 So.2d 909, 911 (Miss.1979).

¶ 13. In order for an illegitimate child to inherit from his or her natural father, there must be an adjudication of paternity after the death of the intestate based upon clear and convincing evidence. Miss Code Ann. Sect. 91 — 1—15(3)(c) (Rev. 1994). However, there is a rebuttable presumption of the legitimacy of a child born during the course of a marriage. In Re Taylor, 609 So.2d 390, 394 (Miss.1992). “The presumption of legitimacy is one of the strongest known to our law.” Karenina by Vronsky v. Presley, 526 So.2d 518, 523 (Miss.1988). Under the facts of this case, there was therefore a strong, but rebuttable, presumption that James Ross was the biological father of Francis Bell, III. A party challenging legitimacy may prevail if he proves beyond a reasonable doubt that the legal husband of the mother is not, in fact, the biological father. Baker By Williams v. Williams, 503 So.2d 249, 253 (Miss.1987); Deer v. State Department of Public Welfare, 518 So.2d 649, 652 (1988); Dixon v. Curtis, 340 So.2d 722, 727 (Miss.1977).

¶ 14. The Mississippi Supreme Court has held that an illegitimate child does not have the burden of rebutting the presumption of legitimacy before the question of whether they are the biological child of the decedent is reached. In Re Taylor, 609 So.2d at 394. Obviously, proof that Francis Bell, III was the biological son of Francis Bell, Jr. would be substantial proof that he was not the biological son of James Ross, and should be considered in deciding whether the presumption has been rebutted. Id. In Taylor; the Mississippi Supreme Court reversed the chancellor’s finding that Joyce Perkins was the natural daughter of the decedent even though Perkins’ mother had been married to another man at the time of her birth. Id. at 390. Even with its limited scope of review, under the totality of the circumstances the court was left with the firm and definite conviction that a mistake had been made and that the evidence showed that Joyce was the daughter of Robert Taylor and not the daughter of Ben Perkins, despite the strong presumption of legitimacy. Id.

¶ 15. The chancellor in the case at bar stated that he was completely satisfied, beyond clear and convincing evidence, that Francis Bell, III is the biological child of Francis Bell, Jr. This evidence consisted of testimony by Francis Bell, III; his mother Lilly Moore, who stated unequivocally that Francis Bell, Jr. was the father of Francis Bell, III; testimony of two sisters of Francis Bell, Jr.; and school and military records that listed Francis Bell, Jr. as his father and bore the name “Francis Bell, III.” Francis Bell, Jr.’s obituary was also introduced into evidence which listed Francis Bell, III as a survivor.

¶ 16. The evidence provides a substantial basis upon which the chancellor could have based his decision. The chancellor used the correct standard of clear and convincing evidence, as stated in Mississippi Code Annotated Section 91 — 1—15(3)(c), to find that Francis Bell, III was the biological child of Francis Bell, Jr. The chancellor did not state clearly that he found Francis Bell, III was not the child of James Ross beyond a reasonable doubt. However, this finding is implicit in his ruling that Francis Bell, III is the child of Francis Bell, Jr. by clear and convincing evidence.

¶ 17. Linda Smith asserts that this Court should adopt case law requiring paternity testing in order to provide a means for the trial court to meet its burden. Smith cites Mississippi Code Annotated Section 93-9-21 (Supp.2003), a part of the Mississippi Uniform Law on Paternity in support of her assertion. Although it is true that testing would have provided substantial evidence to the chancellor, this Court has previously stated:

Section 93-9-21(1) is part of the uniform law on paternity, which sets forth the obligations placed upon the father of a child born out of wedlock. The case at bar deals with the rights of illegitimate children under Section 91 — 1—15(3)(c). The Appellants are unable to cite, and we are unable to find, any case in which Section 93-9-21(1) has been applied to a case of descent and distribution. There is no applicable statutory provision or judicial decision mandating or even suggesting the necessity of blood testing or DNA evidence in cases of descent among illegitimates. Furthermore, whether it is within the authority of a chancellor conducting an heirship proceeding under Section 91-l-15(3)(c) to order genetic testing under some authority other than Section 93-9-21 upon the request of any party to the proceeding is a question that we need not answer at this time since no such request was made at the trial level.

Jordan v. Baggett, 791 So.2d 308, 311(¶ 15) (Miss.Ct.App.2001). Lacking any such request at the trial level in the case at bar, we see no reason to alter our position. This issue is without merit.

¶ 18. THE JUDGMENT OF THE CHANCERY COURT OF BOLIVAR COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: KING, C.J.,

text:
    Thelma R. BYRD, Appellant, v. David S. HUTCHINSON and Nationwide General Insurance Company, Appellees.
    No. 2003-CA-00241-COA.
    Court of Appeals of Mississippi.
    June 29, 2004.
    Lee E. Young, attorney for appellant.

      G. Charles Bordis, Ocean Springs, Roger T. Clark, Gulfport, H. Benjamin Mullen, Pascagoula, Kimberly Dawn Saucier Ro-setti, attorneys for appellees.
    Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   KING, C.J.,

for the Court.

¶ 1. The Circuit Court of Jackson County, Mississippi granted summary judgment in favor of Nationwide General Insurance Company against Thelma R. Byrd. The circuit court determined that Byrd had failed to demonstrate the existence of a genuine issue of material fact in support of her claim that the owner of the vehicle in which she was a passenger and the driver of the other vehicle (David Hutchinson) were underinsured motorists. Byrd raises the following issues on appeal:

I. Whether the trial court erred in granting summary judgment.
II. Whether the limit of liability insurance to qualify for underinsured motorist benefits, when multiple parties claim liability insurance proceeds from a single policy, is the amount of liability insurance proceeds received.

FACTS

¶ 2. On November 28, 1998, Thelma R. Byrd was a passenger in a vehicle owned and operated by Mary Byrd Ellis. On that occasion, a collision occurred between Ellis’ vehicle and a vehicle operated by David Hutchinson.

¶ 3. Ellis had an automobile liability policy which included uninsured motorist coverage through Nationwide General Insurance Company. Ellis’ policy provided for liability limits of $100,000 per occurrence and uninsured motorist limits in the amount of $50,000 per occurrence.

¶ 4. Byrd owned no vehicle, and therefore did not have personal automobile insurance.

¶ 5. On September 28, 2001, Byrd filed a civil action as a result of this collision. On November 1, 2001, Byrd filed an amended complaint alleging (1) negligence against Ellis and Hutchinson and (2) that the liability insurance policies carried by Ellis and Hutchinson were inadequate to fully compensate her for the injuries and damages she sustained.

¶ 6. Nationwide responded to Byrd’s complaint in December 2001. On July 25, 2002, Nationwide filed a motion for summary judgment arguing that the Ellis vehicle was not an underinsured vehicle. On January 3, 2003, the trial court granted Nationwide’s motion for summary judgment. The trial court determined that the Ellis vehicle was not an underinsured vehicle as interpreted by Fid. & Guar. Underwriters, Inc. v. Earnest, 699 So.2d 585 (Miss.1997). On May 9, 2003, an amended order granting Nationwide’s motion for summary judgment was filed. The amended order provided that pursuant to Rule 54 of the Mississippi Rules of Civil Procedure, entry of the final judgment would be effective January 3, 2003, in favor of Nationwide General Insurance Company.

ISSUES AND ANALYSIS

I.

Whether the trial court erred in granting summary judgment.

¶ 7. Byrd argues that the trial court erred in granting Nationwide’s motion for summary judgment. This Court conducts a de novo review of orders granting or denying summary judgment. Benson v. Nat'l Union Fire Ins. Co. of Pittsburgh, P.A., 762 So.2d 795(¶ 5) (Miss.Ct.App. 2000). “The burden of demonstrating that there is no genuine issue of material fact falls on the party requesting the summary judgment.” Miller v. Meeks, 762 So.2d 302(¶ 3) (Miss.2000). The court must review all evidentiary matters before it which include: admissions in pleadings, answers to interrogatories, depositions, and affidavits. Id. This evidence must be viewed “in the light most favorable to the party against whom the motion for summary judgment is made.” Id.

¶ 8. Byrd claims that unresolved issues of material fact made the trial court’s grant of summary judgment premature. Byrd lists as unresolved material facts the following:

(1) The sum, if any, that Plaintiff Thelma R. Byrd would receive from Defendant Nationwide General Insurance Company under Nationwide’s motor vehicle liability coverage was unknown[.] and/or
(2) The sum, if any that the other claimants would receive under Nationwide’s motor vehicle liability coverage was unknown.
(3) Whether other claimants would qualify as victims of an underinsured motorist was unknown (affecting the availability of underinsured motorist benefits for Plaintiff Byrd).

¶ 9. Nationwide filed the motion for summary judgment to determine whether the Ellis vehicle was underinsured for purposes of Byrd’s claim under the uninsured motorist provision of the Ellis policy. Nationwide claimed that the only material facts essential to a determination of whether the Ellis vehicle qualified as an underinsured vehicle were the limits of bodily injury coverage on the Ellis vehicle, limits of uninsured motorist coverage on the Ellis vehicle, and the limits of personal uninsured motorist coverage held by Byrd. Nationwide maintained that because this information was provided, no genuine issues of material fact existed.

¶ 10. Nationwide relied on Thiac v. State Farm Mut. Auto. Ins. Co., 569 So.2d 1217 (Miss.1990), where a guest passenger, without her own insurance, was injured in a single vehicle automobile accident and sued the driver’s insurer for underinsured motorist benefits after collecting the policy limit liability benefits from the carrier. The supreme court determined that the “insured driver-tort-feasor was not under insured with respect to [the] guest passenger injured in [a] single vehicle accident who had no insurance coverage of her own.” Id. at 1217. The supreme court further noted that to make other coverage available a court should look at the guest passenger’s own coverage and the host vehicle’s coverage in determining whether the insured host vehicle is underinsured. Id. at 1221.

¶ 11. Nationwide also cites to Fid. & Guar. Underwriters, Inc. v. Earnest, 699 So.2d 585(¶ 2) (Miss.1997), where Earnest and two other passengers were killed in a single vehicle accident. The vehicle was covered under a liability policy issued by Fidelity & Guaranty Underwriters, Inc., which included $50,000 single limits liability coverage and $25,000 in uninsured motorist coverage. The supreme court determined that in looking at whether the tortfeasor’s vehicle' qualifies as an underin-sured vehicle, the limits of bodily injury coverage on a tortfeasor’s vehicle must be compared with the limits of the tortfea-sor’s uninsured motorist coverage, and the limits of personal uninsured motorist coverage held by the claimant.

¶ 12. Byrd has not shown that the trial court applied the incorrect standard, or that the court lacked all necessary information to determine whether the Ellis vehicle was underinsured. Given the applicable standard, and the evidence available to the trial court, this Court cannot say it was error to grant summary judgment.

II.

Whether the limit of liability insurance to qualify for underinsured motorist benefits, when multiple parties claim liability insurance proceeds from a single policy, is the amount of liability insurance proceeds received.

¶ 13. Byrd asks this Court to hold that in a multi-vehicle collision the question of underinsured motorist status should be determined by dividing the total amount of available insurance coverage by the total number of potential claimants.

¶ 14. Uninsured motorist coverage is mandated and defined by Mississippi Code Annotated Sections 83-11-101 and 83-11-103(c)(iii) (Rev.1999):

¶ 15. Mississippi Code Annotated Section 83-11-101(1) provides:

(1) No automobile liability insurance policy or contract shall be issued or delivered after January 1, 1967, unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle, within limits which shall be no less than those set forth in the Mississippi Motor Vehicle Safety Responsibility Law, as amended, under provisions approved by the commissioner of insurance; however, at the option of the insured, the uninsured motorist limits may be increased to limits not to exceed those provided in the policy of bodily injury liability insurance of the insured or such lesser limits as the insured elects to carry over the minimum requirement set forth by this section. The coverage herein required shall not be applicable where any insured named in the policy shall reject the coverage in writing and provided further, that unless the named insured requests such coverage in writing, such coverage need not be provided in any renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.

Mississippi Code Annotated Section 83-11 — 103(c)(iii), provides:

c) The term “uninsured motor vehicle” shall mean:
(iii) An insured motor vehicle, when the liability insurer of such vehicle has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist coverage.

¶ 16. The Mississippi Supreme Court has consistently provided that, as set forth in the statute, underinsured motorist coverage is determined solely by a comparison of the tortfeasor’s liability coverage and the personal coverage carried by, or available to the injured party. Fid. & Guar. Underwriters, Inc. v. Earnest, 699 So.2d 585 (¶¶ 16-20) (Miss.1997). This was the standard applied by the trial court.

¶ 17. Byrd did not demonstrate that Ellis was an underinsured motorist under this standard, nor has she demonstrated good reason to abandon that standard.

¶ 18. This Court finds no merit in this issue.

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

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


author: BRIDGES, P.J.,

text:
    TITAN INDEMNITY COMPANY, Attala County, Mississippi, The Board of Supervisors of Attala County, Mississippi, Troy Hodges, Eddie Womble, Charles P. Fancher, DeWitt Adcock, H. Wade Shumaker, and Bobby Lewis, Individually and In their Official Capacities with Attala County, Mississippi, Appellants/Cross-Appellees v. Eric Scott POPE, Individually and by Vivian Raspberry, His Natural Mother and Adult Next Friend, Appellees/Cross-Appellants.
    No. 2002-CA-01112-COA.
    Court of Appeals of Mississippi.
    June 29, 2004.

      Katherine S. Kerby, Benjamin E. Griffith, Tommie Sullivan Cardin, Jackson, Daniel Judson Griffith, attorneys for appellant.
    Michael S. Allred, Ottowa E. Carter, Jackson, Kathleen H. Eiler, attorneys for appellees.
   BRIDGES, P.J.,

for the Court.

¶ 1. Eric Scott Pope (Pope) filed a civil action for negligence against Attala County, Mississippi (Attala County) and Titan Indemnity Company (Titan) for injuries he sustained when the car in which he was a passenger hit a trailer carrying a backhoe used and parked by an Attala County road crew. The County waived its sovereign immunity to the extent it had liability coverage through Titan pursuant to Mississippi Code Annotated section 11-46-11. Titan was denied a motion for summary judgment and Pope was allowed to enforce his claims under two separate sections of Attala County's policy both which had a limit of $500,000. At the conclusion of a bench trial Pope was found to have $2,848,000 in compensatory damages and was granted $1,000,000 in recoverable damages. The County’s motion to reduce the judgment was denied.

¶ 2. Titan and Attala County appeal the decision of the trial court with Pope also cross-appealing the decision of the trial court.

statement OF THE ISSUES

I. DID THE LOWER COURT ERR IN DENYING TITAN’S MOTION FOR SUMMARY JUDGMENT, IN WHICH IT DISREGARDED THE ANTI-CUMULATION CLAUSE CONTAINED IN ITS POLICY WITH THE COUNTY ALLOWING AN ADDITIONAL SOURCE FOR INDEMNIFICATION OF POPE’S JUDGMENT AGAINST THE COUNTY?

II. DID THE LOWER COURT ERR IN HOLDING THE TOTAL AMOUNT OF THE VERDICT SHOULD NOT BE REDUCED BY AMOUNTS PAID BY SETTLING DEFENDANTS, IN DISREGARD OF THE PRO TANTO REDUCTION RULE?

ISSUES ON CROSS-APPEAL

I. DID THE TRIAL COURT ERR IN FINDING THAT ATTALA COUNTY’S POLICY AS ISSUED BY TITAN IS FIVE SEVERABLE POLICIES AND NOT ENTIRE?

II. DID TITAN WAIVE ALL EXCLUSION AND OBJECTION TO COVERAGE UNDER THE POLICY BY DEFENDING ATTALA COUNTY WITHOUT A RESERVATION OF RIGHTS?

FACTS

¶ 3. Pope was a passenger in a car driven by Kis friend, Dwight Burns. While 'attempting to take a rather sharp curve on a gravel road, Burns met an oncoming car that had allegedly crossed the center line and was forced onto the shoulder of the road where he collided with the rear left corner of a trailer. Attala County leased the trailer and it was then being used by a county road crew carrying a backhoe. The road crew was beginning a project at that site but had not posted warning signs and had no flag men present to alert oncoming traffic of the trailer.

¶ 4. Pope settled his suit with the owners of the trailer, Toyota, Dwight Burns and Willeta Campbell for $835,000. Pope’s claim against Attala County was for negligently causing and/or contributing to the accident. The County’s insurer, Titan Indemnity Company, provided a complete defense for the County through its business policy with them. Titan, however, denied that it was liable especially for damages resulting from the excessive speed of Burns while making the turn. The County, through Titan, did admit that there was some negligence on the part of the County by stopping and parking the trailer in that spot without adequate warning signs.

¶ 5. Pope was only entitled to recover from the County that amount which was covered through its insurance. The maximum coverage provided under the policy is in dispute. The County’s policy with Titan had one policy number but contained numerous sub-parts. Pope argues he was entitled to insurance coverage provided in multiple sub-parts. Titan claims the sub-parts are separate and distinct, and that an anti-cumulation clause prevents a claimant from recovering from more than one. The trial court ruled the anti-cumulation clause to be ambiguous and construed the policy in favor of the insured allowing Pope’s claim to fall under two sub-parts.

ANALYSIS

I. DID THE LOWER COURT ERR IN DENYING TITAN’S MOTION FOR SUMMARY JUDGMENT, IN WHICH IT DISREGARDED THE ANTI-CUMULATION CLAUSE CONTAINED IN ITS POLICY WITH THE COUNTY ALLOWING AN ADDITIONAL SOURCE FOR INDEMNIFICATION OF POPE’S JUDGMENT AGAINST THE COUNTY?

¶ 6. In order to determine whether the trial court’s grant of summary judgment in favor of Pope was appropriate based on Mississippi Rule of Civil Procedure 56 and the applicable case law, this Court applies a de novo standard of review. Frith v. BIC Corp., 863 So.2d 960(¶ 6)(Miss.2004). (citing Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002(¶ 7)(Miss.2001); Jenkins v. Ohio. Cas. Ins. Co., 794 So.2d 228, 232(¶ 16)(Miss.2001); Russell v. Orr, 700 So.2d 619, 622(¶ 8)(Miss.1997); Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997); Northern Elec. Co. v. Phillips, 660 So.2d 1278, 1281 (Miss.1995)). The proponent of a summary judgment motion, Pope in this case, bears the burden of showing that there are no genuine issues of material fact such that they are entitled to judgment as a matter of law. Collier v. Trustmark Nat’l Bank, 678 So.2d 693, 696 (Miss.1996). Titan and Attala County were required to defeat the motion by not “responding with general allegations, but ... set[ting] forth specific facts showing that issues exist which necessitate a trial.” Frith, 863 So.2d at 960(¶ 6) (citing Drummond v. Buckley, 627 So.2d 264, 267 (Miss.1993)). Upon review this Court will examine evidentiary matters in a light most favorable to the non-moving party, and will reverse the decision of the trial court if Titan and Attala County prove triable issues of fact exist. Frith, 863 So.2d at 960(¶ 6)(Miss.2004) (citing Travis v. Steivart, 680 So.2d 214, 216 (Miss.1996)).

¶ 7. Pope requested in his motion for summary judgment that the trial court find the sub-parts of the policy issued to the County severable, which the court did. The court also ruled that the commercial auto policy and the commercial general liability policy “CGL policy” were the only sub-parts applicable to Pope’s claim. Titan acknowledged potential liability under the CGL policy, but argues that the non-cumulation clause prevented Pope from recovering under both sub-parts. However, the court in its amended order for summary judgment determined the two policies to be ambiguous when read as a whole and thus were to be construed against Titan. State Farm Mutual Auto. Insurance Co. v. Scitzs, 394 So.2d 1371, 1371-73 (Miss.1981). Thus, recovery under both policy sub-parts was allowed for a maximum amount of $1,000,000.

¶ 8. In its determination of whether or not the non-cumulation policy prevented Pope from recovering under both sub-parts, the trial court relied on the Louisiana Court of Appeals’ decision in Duncan v. Kansas City Southern Railway Co., 747 So.2d 656 (La.App. 3rd Cir.1999). The Louisiana court prevented affiliated companies from limiting coverage under excess policies because it failed to properly distinguish between “excess” other insurance clauses and a “true excess” insurance policy. Id. The Louisiana court reasoned that many aspects of an insurance policy are contracts of adhesion, and, therefore, the court will not draw any distinctions for the insurance company but that they should themselves make them clear and free from ambiguity. Id. Similarly, in this case, the trial court ruled Titan could not make its coverage under the CGL policy sub-part “excess” but limit the amount payable under the commercial auto sub-part with a non-cumulation clause.

¶ 9. The non-cumulation clause contained in the commercial auto sub-part reads in part:

TWO OR MORE COVERAGE FORMS OR POLICIES ISSUED BY US.
If this coverage form and any other Coverage Form or policy issued to you by us ... apply to the same accident the aggregate maximum Limit of Insurance under all the Coverage Forms or policies shall not exceed the highest applicable limit of insurance under any one coverage Form or Policy. This condition does not apply to any Coverage Form or policy issued by us ... specifically to apply as excess insurance over this Coverage Form.

¶ 10. The court in Hartford Acc. & Indem. Co. v. Bridges, 350 So.2d 1379, 1381 (Miss.1977) ruled that a presumption of equal coverage exists when the company charges a separate premium for uninsured motorist coverage over the regular coverage and that “in order to limit this coverage it must be done in such clear and unambiguous language that it may be readily seen and understood by the insured that the coverage is limited.” When a policy is determined to be unambiguous by a court, “the court must refrain from altering or changing a policy where terms are unambiguous, despite resulting hardship on the uninsured.” Titan Indemnity Company v. Estes, 825 So.2d 651, 656(¶ 17)(Miss.2002) (citing State Farm Mut. Auto. Ins. Co. v. Scitzs, 394 So.2d 1371, 1373 (Miss.1981)). “A clear and unambiguous contract will be enforced as written.” Id. (citing Delta Pride Catfish, Inc. v. Home Ins. Co., 697 So.2d 400, 403 (Miss.1997)). To determine whether a triable question of fact exists, this Court examines the evidence that the plain meaning of the policies when read together can be readily seen and understood thus making them unambiguous.

¶ 11. The Mississippi Supreme Court has previously interpreted a business auto policy, a CGL policy, as well as a public officials policy issued by Titan to the City of Natchez. Titan, 825 So.2d at 653(¶ 6). The excerpts of the CGL policy and the auto policy provided in this earlier case are identical to the corresponding sections of the policies in the case at bar. In that case the Mississippi Supreme Court held that the non-cumulation clause of the auto policy and the auto exclusion in the CGL policy were not ambiguous and did not allow a “strained interpretation.” Id. at 656 (¶¶ 18-19). An additional issue in that case, where the court refused to allow the plaintiffs to change the interpretation of the policy for their various theories of liability, is irrelevant to our decision.

¶ 12. In the prior Titan case, after the Mississippi Supreme Court found the policy sub-parts unambiguous, they interpreted them together with the following findings: the CGL policy sub-part’s auto exclusion prohibited coverage; and the bodily injury exclusion prohibits coverage under the public official’s sub-part, since coverage under the CGL policy and public official’s sub-parts were “categorically excluded” and could not be considered excess. Therefore, they were not considered “excess” coverage provided by Titan, and the anti-cumulation clause of the auto sub-part applied and did not allow recovery under either the public official sub-part or the CGL policy sub-part. Id. at 657(¶ 23).

¶ 13. Although Titan acknowledged a duty to defend Attala County under both the auto policy and the CGL policy, Titan did not acknowledge a duty to indemnify. A duty to defend arises when potential for coverage exists. Merchants Co. v. American Motorists Ins. Co., 794 F.Supp. 611, 616 (S.D.Miss.1992). “Under Mississippi law, an insurer’s duty to defend an action against its insured is measured, in the first instance, by the allegations in the plaintiffs pleadings.... ” EEOC v. Southern Pub. Co., 705 F.Supp. 1213, 1215 (S.D.Miss.1988). Apparently Titan, based on Pope’s allegations, determined it had a duty to defend Attala County under both the auto policy and CGL policy. However, the record does not reveal that Titan acknowledged that it had a duty to indemnify Attala County under the CGL policy.

¶ 14. The court in Merchants ruled that “the duty to defend is broader than the insurer’s duty to indemnify under its policy of insurance: the insurer has a duty to defend when there is any basis for potential liability under the policy.” Merchants Co., 794 F.Supp. at 617. Titan, by defending Attala County on the CGL policy, merely acknowledged potential liability under the CGL policy. They did not acknowledge coverage.

¶ 15. Applying the holding in the prior Titan case, the language of the auto exclusion is clear and unambiguous. Therefore, the auto exclusion forecloses coverage under the CGL policy. Since the auto exclusion precludes coverage under the CGL policy, the CGL policy is not excess insurance. Thus, the non-cumulation clause of the auto policy applies, and no recovery should have been allowed under the CGL policy. Therefore, the decision of the trial court allowing coverage under both sub-parts for a total recovery of $1,000,000 was erroneous.

II. DID THE LOWER COURT ERR IN HOLDING THE TOTAL AMOUNT OF THE VERDICT SHOULD NOT BE REDUCED BY AMOUNTS PAID BY SETTLING DEFENDANTS, IN DISREGARD OF THE PRO TANTO REDUCTION RULE?

¶ 16. Given the position on the above issue, this issue is moot. Pope received a judgment of $2,848,000. Attala County was required to pay the maximum amount of applicable liability insurance which was erroneously set by the trial court to be $1,000,000. Titan has previously paid $500,000 in satisfaction of the April 4, 2002 summary judgment. Considering the decision above that the non-cumulation clause reduces the maximum applicable liability insurance to $500,000, no further obligation is due to Pope from Attala County.

ISSUES ON CROSS-APPEAL

I. DID THE TRIAL COURT ERR IN FINDING THAT ATTALA COUNTY’S POLICY AS ISSUED BY TITAN IS FIVE SEVERABLE POLICIES AND NOT ENTIRE?

¶ 17. The standard of review is the same for this issue as stated above. The trial court ruled in summary judgment that the sub-parts of the policy Attala County had with Titan were severable rather than entire. “This court ... has repeatedly held that a schedule policy, such as we have before us, insuring various items and fixing the amount of insurance to be paid on each, is separable, although the premium is fixed as an entirety; and that because the policy is void as to one item, that fact does not render it unenforceable as to the others.” Claxton v. Fidelity & Guaranty Fire Corp., 179 Miss. 556, 175 So. 210, 212 (Miss.1937). More recently Travelers Indem. Co. v. Wetherbee, 368 So.2d 829, 835 (Miss.1979), upheld Claxton stating that it “ unequivocally established] the divisibility of policy coverages so they may be considered as separate contracts.” Travelers held an insurance policy to be three severable contracts each with its own consideration, and each requiring a determination of whether punitive damages should be applied. Id.

¶ 18. In the current case, the sub-parts had individually calculated premiums which all fell under the same policy number for a total amount of premiums due to Titan by Attala County. These itemized premiums created consideration for separate contracts, and thus each is a severable policy. The judgment of the trial court is affirmed.

II. DID TITAN WAIVE ALL EXCLUSION AND OBJECTION TO COVERAGE UNDER THE POLICY BY DEFENDING ATTALA COUNTY WITHOUT A RESERVATION OF RIGHTS?

¶ 19. On the final issue before the Court, Pope alleges Titan lacked the right to object to coverage under the multiple sub-parts since it defended Attala County without a reservation of rights. Pope asserts Titan’s failure to defend under a reservation of rights allows him to recover under four sub-parts; commercial auto, commercial general liability, public official’s liability, and law enforcement officer’s liability giving him a total recovery of $2,000,000 rather than $1,000,000.

The act of providing a defense under a reservation of rights means nothing more than that the company is defraying the costs of defending the action, including the payment of defense counsel’s fees. The company providing such a defense has no right to direct defense counsel to raise issues that might benefit the company but could be prejudicial to the defendant. Defense counsel’s duty is solely to the client, notwithstanding the fact that an insurance company is paying for the defense.

State Farm Mut. Auto. Ins. Co. v. Eakins, 707 So.2d 1100, 1103(¶ 11) (Miss.Ct.App.1997) (citing Hartford Accident & Indem. Co. v. Foster, 528 So.2d 255, 268 (Miss.1988)).

¶ 20. In State Farm, this Court held that the company was precluded from raising an issue in the trial since it was not a party and had no standing. Id. However, the reasoning applied under State Farm would not apply here since Titan was a party to the suit and had the right to raise issues in defense.

¶ 21. Titan in its motion for summary judgment admitted that it provided a defense without a reservation of rights. Titan states “throughout these proceedings Titan Indemnity Company has consistently acknowledged that potential coverage and a duty to defend exists under the Commercial Auto policy and the Commercial General Liability policy issued to Attala County Defendants, based upon the allegations of the Second Amended Complaint.” Through this statement it is clear Titan intended to defend without a reservation of rights on only those two sub-parts of the policy and was later found obligated to pay under those policies. Titan never waived its rights regarding the other policy sub-parts and, therefore, is not prohibited from asserting a defense against coverage under those policies. Pope’s appeal on this issue is without merit.

¶ 22. THE JUDGMENT OF THE AT-TALA COUNTY CIRCUIT COURT IS REVERSED AND RENDERED ON DIRECT APPEAL AND AFFIRMED ON CROSS-APPEAL. ALL COSTS OF APPEAL ARE ASSESSED TO THE AP-PELLEES.

KING, C.J., SOUTHWICK, P.J., LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. THOMAS, J., NOT PARTICIPATING.


author: JOHNSTONE, Justice. WOODALL, Justice

text:
    Floyd WASHINGTON v. BILL HEARD CHEVROLET, INC., and Chevy Chase Bank, FSB.
    1020285.
    Supreme Court of Alabama.
    Sept. 12, 2003.
    J. Zach Higgs, Jr., and Robert D. Lee of Higgs & Emerson, Huntsville, for appellant.
    D. Edward Starnes III and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellee Bill Heard Chevrolet, Inc.
    Charles R. Johanson III and Jonathan E. Raulston of Engel, Hairston & Johan-son, P.C., Birmingham, for appellees.
   JOHNSTONE, Justice.

The plaintiff Floyd Washington appeals the orders of the trial court compelling him to arbitrate his claims of fraud against defendant Bill Heard Chevrolet, Inc., and dismissing his claim for declaratory relief against defendant Chevy Chase Bank, FSB. We affirm the order for arbitration and reverse the order of dismissal. Because the order for arbitration is supported by well-established law, this opinion will not address the arbitration issue, see Rule 53(a)(1) and (a)(2)(E) and (F), Ala. R.App. P., but will address only the dismissal issue.

The complaint initially alleged a breach of contract claim against Chevy Chase Bank. However, in an amended complaint, the plaintiff replaced the breach of contract claim with a declaratory relief claim. The allegations pertinent to the declaratory relief claim are:

“1. The Plaintiff, Floyd Washington, is an individual who resides at 313 Pon-roy Street, Scottsboro, Alabama 35768.
“2. The Defendant, Bill Heard Chevrolet, Inc., is a business, located in Huntsville, Alabama, more specifically at 4930 University Drive, Huntsville, Alabama 35816.
“3. The Defendant, Chevy Chase Bank, FSB, is a financial institution, at 7926 Jones Branch Drive, McLean, Virginia 22102.
“4. On or about February 20, 2001, the Plaintiff, Floyd Washington, was negotiating with the Defendant, Bill Heard Chevrolet, Inc., by and through its agent, servant, employee, Stanley Rid-ley, to purchase a new (2001) Chevrolet Malibu sedan, VIN 1G1NE52J316178342. Negotiations were had, as far as the purchase price of the vehicle, and eventually, the Plaintiff went to the financing department of said business, to work out the final financial details.
“5. On or about February 20, 2001, the Plaintiff executed a retail installment contract with balloon payment options. The terms of the agreement were that he would be paying an annual percentage rate of 9.59%, with finance charges of $7,111.26. The payments were in the amount of $379.00 for 59 months, with the last balloon payment being $6,616.00, which was due on February 22, 2006. The Plaintiff signed the installment contract.
“6. Subsequent to the execution of that contract, the Plaintiff, Floyd Washington, was contacted by the Defendant company, to advise that he would have to sign a new installment sales contract, which involved a simple finance charge. The terms of this contract were that he would pay 13.05%, with finance charges of $9,521.75, with 59 payments of $380.00 per month, and a final payment of $7,480.00. The Plaintiff executed this agreement, entered in on or about February 22, 2001.
“7. On or about May 24, 2001, the Plaintiff received, in the mail, another retail installment sales contract, with a simple finance charge, that provided for 13.05% interest, with $7,184.26 in finance charges, with 47 payments at $380.00 per month, with the final payment on May 22, 2005, of $8,024.50. This contract was forged by someone. The plaintiff, Floyd Washington, did not execute this agreement.
“11.... [Financing has always been with the same company, Chevy Chase Bank, FSB, for the first contract, the second contract, and the third contract ....
“12. The representations made by the Defendant, Bill Heard Chevrolet, Inc., by and through its agent, servant, and employee were false. Defendant, by and through its agent, servant, and employee knew that they were false; or Defendant, without knowledge of the true facts, recklessly misrepresented them; or, were made by mistake, but with the intention that Plaintiff should rely upon them.
“13. Plaintiff believed the representations, and with reliance upon them, executed the second retail financing contract, to his detriment.
“17. Plaintiff has made the payments to the financing bank, Chevy Chase Bank, FSB, in accordance with the third contract, to his detriment, to protect his credit.
“19. Plaintiff seeks a determination of the rights and status of the Plaintiff and Defendant[], ... Chevy Chase Bank, FSB, pursuant to Ala.Code § 6-6-220, et seq. (1975) [(Article 5, Declaratory Judgments)].
“20. Plaintiff did not sign the aforesaid contract, which is dated May 23, 2001, and which Plaintiff received in the mail, but has continued to make the payments in order to protect his credit rating.
“21. Because some other person signed Plaintiffs name to the aforesaid contract, Plaintiff contends that it is void and unenforceable.
“WHEREFORE, Plaintiff prays the Court that upon a final hearing the Court will render a declaratory judgment adjudging the rights and status of the parties. Plaintiff further prays for such other relief as the Court may deem just, including attorney’s fees and costs if allowed under the laws of this State.” (Emphasis added.)

Pursuant to a Rule 12(b)(6), Ala. R. Civ. P., motion by Chevy Chase Bank, the trial court dismissed this claim by the plaintiff for a judgment declaring the “forged” third retail installment sale contract void and unenforceable. Before us on this appeal, Chevy Chase Bank argues that the plaintiffs claim for a declaratory judgment fails to state a justiciable controversy with Chevy Chase Bank.

“A motion to dismiss for failure to state a claim pursuant to A.R.Civ.P. 12(b)(6) is properly granted when it appears beyond a reasonable doubt that the plaintiff can prove no set of facts to support [his] claim for relief. Hill v. Kraft, 496 So.2d 768 (Ala.1986). In other words, ‘[dismissal is proper ... only when it is clearly demonstrated that plaintiff has no claim upon which relief can be granted under any set of provable facts according to a cognizable theory of law.’ Weeks v. East Alabama Water, Sewer & Fire Protection District, 401 So.2d 26 (Ala.1981). Consequently, we look only to the face of [the plaintiffs] complaint, view the allegations contained therein in a light most favorable to [him], and resolve any doubts in [his] favor. Sims v. Lewis, 374 So.2d 298 (Ala.1979).”

Klein v. State Bd. of Educ., 547 So.2d 549, 551 (Ala.Civ.App.1988). “[T]his Court does not consider whether the plaintiff will ultimately prevail, only whether he has stated a claim under which he may possibly prevail.” Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985) (citation omitted). “[T]here must be a bona fide existing controversy of a justiciable character to confer upon the court jurisdiction to grant declaratory relief under declaratory judgment statutes.” Shadix v. City of Birmingham, 251 Ala. 610, 611, 38 So.2d 851, 852 (1949) (citations omitted).

According to the allegations of the complaint, the balloon payment of the third retail installment sale contract exceeds the balloon payment of the second; and, for aught that appears in the complaint, the third retail installment sale contract does not relieve the plaintiff from the obligations of the second. For aught that appears, the plaintiff will be bound to pay both retail installment sale contracts unless the trial court declares the third void as a forgery, as the complaint alleges it is, or unless the trial court otherwise addresses the apparent existence of the two putative contracts. Therefore, within the allegations of the complaint, the plaintiff may prove that he will suffer real harm in the absence of a declaratory judgment. Thus, the complaint does state a justiciable controversy, and the trial court committed reversible error in entering the Rule 12(b)(6) dismissal.

While we affirm the order granting the motion of Bill Heard Chevrolet to compel the plaintiff to arbitrate his claims against that company, we reverse the order dismissing the claim for declaratory relief against Chevy Chase Bank. We remand the case to the trial court for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

SEE, BROWN, and WOODALL, JJ., concur in part and dissent in part.

WOODALL, Justice

(concurring in part and dissenting in part).

I concur with the majority opinion insofar as it affirms the order granting the motion of Bill Heard Chevrolet to compel the plaintiff, Floyd Washington, to arbitrate his claims against that company. However, I dissent insofar as the majority opinion reverses the order dismissing the claim for declaratory relief against Chevy Chase Bank.

SEE and BROWN, JJ., concur.