author: GRIFFIS, J., BRIDGES, J., LEE, J„

text:
    Lori NICHOLS, Appellant v. David Wayne FUNDERBURK, Appellee.
    No. 2002-CA-00087-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2003.
    Rehearing Denied March 9, 2004.

      Angela Newsom Snyder, attorney for appellant.
    David Wayne Funderburk appellee, pro se.
   GRIFFIS, J.,

for the Court.

¶ 1. Lori Nichols filed a complaint for paternity, child support and an equitable division of property against David Wayne Funderburk. The chancellor entered a final judgment that declared David as the father of their two children, granted custody of the children and child support to Lori, restricted David’s visitation with the children, and denied Lori’s claim for an equitable division of property. From this judgment, Lori now appeals. We find no error and affirm.

FACTS

¶ 2. In 1987, ■ Lori Nichols and David Funderburk met and began a romantic relationship. Lori was fourteen years old, and David was twenty-three years old. Approximately two years later, just before Lori turned sixteen, Lori and David began to live together. They continued their cohabitation through 2001. Although there were promises and discussions about the subject, they were never married. David eventually made it clear that he would never marry Lori.

¶ 3. During their cohabitation, Lori and David had two children. Tonie Lee Fun-derburk was born on March 29, 1990, and Lori Alexis Funderburk was born on November 12, 1997. The chancellor decided the issues of paternity, custody, and child support, and none of these issues are contested on appeal. This appeal only considers the chancellor’s decision to deny Lori an equitable division of property.

¶ 4. During the period of their cohabitation, David operated a restaurant and purchased an apartment complex from his parents. Lori was never an owner or partner in either of these businesses. Lori managed the restaurant and occasionally worked at the apartment complex. Lori was paid a weekly salary for her work at the restaurant.

¶ 5. David also purchased a residence in 1989. The deed to the residence conveyed record title to David and his mother as joint owners. David paid the monthly mortgage payment. David and Lori split the utility bills. Lori bought all the furniture for the house, the appliances, and other material such as paint and flooring to update the home. Lori’s name was never added to or included in the property’s record title. When she left the relationship, Lori took half of the furniture and left the residence.

¶ 6. The relationship and cohabitation of David and Lori ended in 2001. Lori then filed her complaint for paternity, child support and an equitable division of property. The chancellor’s final judgment declared David to be the father of the two children and awarded primary custody to Lori with joint legal custody between both parents. The chancellor restricted David’s visitation due to his questionable behavior. The chancellor ordered David to pay $425 per month in child support and provide health insurance for the children. Lori was awarded a $2,300 judgment for back child support. The chancellor denied Lori’s claim for an equitable division of the property that was acquired during their cohabitation.

¶ 7. On appeal Lori makes three arguments. First, Lori argues the chancellor erred in denying her claim for an equitable division of the property acquired during her cohabitation with David. Second, Lori contends that since she was merely fourteen years old when her relationship with David began, she should be afforded some protection by the courts and that she should be awarded her fair share of the assets accumulated during their relationship. Finally, Lori claims that a constructive trust was established when she began contributing financial resources and domestic efforts to their businesses and residence.

STANDARD OF REVIEW

¶ 8. Our scope of review in domestic matters is limited. This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Denson v. George, 642 So.2d 909, 913 (Miss.1994). This Court is not called upon or permitted to substitute its collective judgment for that of the chancellor. Richardson v. Riley, 355 So.2d 667, 668-69 (Miss.1978). A conclusion that we might have decided the case differently, standing alone, is not a basis to disturb the result. Id.

ANALYSIS

¶ 9. Our review begins with a threshold question. Does the fact that David, as the appellee, failed to file a brief serve as a confession of error? In Barber v. Barber, 608 So.2d 1338, 1340 (Miss.1992), the Mississippi Supreme Court held:

In matters of child custody and support, however, in the absence of an appellee’s brief, our practice is to make a special effort to review the record for support for affirmance. Sparkman v. Sparkman, 441 So.2d 1361 (Miss.1983); Garceau v. Roberts, 363 So.2d 249 (Miss. 1979[1978]). While this matter does not involve custody or support directly, it does arise out of a suit wherein those issues are of concern and its resolution affects the economic balance between the non-custodial and the custodial parent. Accordingly, we review the record.

Here, just as in Barber, we will not accept the appellee’s failure to file a brief as a confession of error, and we will review the record to determine whether an affirmance is proper.

I. Did the chancellor abuse her discretion by denying Lori an equitable division of property?

¶ 10. We begin our discussion with the principle that Mississippi law does not allow a claim for palimony. Aldridge v. Aldridge, 116 Miss. 385, 77 So. 150 (1918). Here, Lori contends that she does not seek an award of palimony, but rather claims she is entitled to an “equitable division of property.” Lori argues, that Pickens v. Pickens, 490 So.2d 872, 875 (Miss.1986), provides authority for her position.

¶ 11. Equitable division of property is a concept of our marital and domestic laws. A marital relationship may be created in conformity with Mississippi Code Annotated sections 93-1-1 through 93-1-25 (Rev. 1994 and Supp.2002). Mere cohabitation does not vest marital rights. Pickens, 490 So.2d at 875.

¶ 12. In Ferguson v. Ferguson, 639 So.2d 921, 925 (Miss.1994), the Mississippi Supreme Court held:

This Court has “long recognized that, incident to a divorce, the chancery court has authority, where the equities so suggest, to order a fair division of property accumulated through the joint contributions and efforts of the parties.” Brown v. Brown, 574 So.2d 688, 690 (Miss.1990); Brendel v. Brendel, 566 So.2d 1269, 1273 (Miss.1990); Jones v. Jones, 532 So.2d 574, 580-581 (Miss.1988); Clark v. Clark, 293 So.2d 447, 450 (Miss. 1974). With this opinion, this Court adopts guidelines for application of the equitable distribution method of division of marital property.

The key concept in the equitable division of property is that the property be “marital property” and that it be divided “incident to a divorce.”

¶ 13. The ceremony of marriage is essential to the equitable division (i.e. the redistribution of ownership between former spouses) of property. An actual marriage is required. However, courts have carved out an exception and extended this concept where there was a marriage or some appearance of marriage. This exception has allowed the award of some type of division of property or payment of support, when no legal marriage actually existed. See Pickens v. Pickens, 490 So.2d 872, 875 (Miss.1986); Taylor v. Taylor, 317 So.2d 422, 423 (Miss.1975); Chrismond v. Chrismond, 211 Miss. 746, 52 So.2d 624, 630 (1951); Wooldridge v. Wooldridge, 856 So.2d 446, 452 (¶16) (Miss.Ct.App.2003). However, in each of these cases, the couples had all either been married or contended to have married. Here, Lori and David never married or purported to have married.

¶ 14. In Pickens, Norma Jean and Robert Pickens were married in 1948. Pick- ens, 490 So.2d at 873. They divorced in 1962, but resumed living together in 1963 without remarrying. Id. When Mr. Pick-ens retired in 1983, the couple separated permanently. Id. The chancellor divided the property to represent the economic contributions by each party toward the joint accumulation of property between them. Id. at 875. Observing that Mrs. Pickens had worked outside of the home for twenty years and taken care of the household, the supreme court affirmed and held that:

Where parties such as these live together in what must at least be acknowledged to be a partnership and where, through their joint efforts, real property or personal property, or both, are accumulated, an equitable division of such property will be ordered upon the permanent breakup and separation.

Id. at 875-76. Lori argues that like the couple in Pickens, she and David had a partnership and accumulated real and personal property through their joint efforts, and she is therefore entitled to equitable division of these assets.

¶ 15. In Taylor, the couple entered into a marriage knowing the putative wife had not divorced her first husband and lived together as man and wife for eighteen years. Taylor, 317 So.2d at 422. Upon their separation, the court found equity required the man to “support” his putative wife for a period of thirty-six months. Id. Granting of monthly support for a limited period of time is not the same as equitable division of property, jointly gained through the efforts of the parties during the relationship.

¶ 16. Lori contends that the chancellor applied the wrong legal standard by relying on Davis v. Davis, 643 So.2d 931 (Miss.1994). Lori contends that Davis held that the plaintiff was not entitled to equitable division based on her domestic contributions alone. Id. at 936. Lori asserts that, unlike the plaintiff in Davis, she did not seek equitable division of property for compensation, payment of monies or division of assets on the basis that she “rendered services” during their cohabitation. Instead, Lori claims she sought a division of property based on her financial contribution. Lori cites to numerous jobs she held throughout her relationship with David, including her participation in the management of David’s restaurant and his apartments to support this contention. She also claims that the improvements she made to the home were a financial contribution.

¶ 17. The chancellor considered the claims presented, the appropriate legal precedent, and concluded that there were simply no facts to support a finding that Lori and David entered a partnership or acquired assets through their joint efforts. The chancellor looked at when the assets were acquired, how they were titled, when they were sold, and whether property acquired through any implied partnership remained to be distributed. The chancellor’s opinion that no jointly acquired assets existed was supported by the facts from the record. Under our standard of review, there was no clear error in the chancellor’s finding.

¶ 18. The dissent would reverse and remand to the chancellor to equitably divide the equity in the residence and the net proceeds from the sale of the restaurant. To reach this result, the dissent ignores the findings made by the chancellor.

¶ 19. The dissent tries to distinguish this case from Davis. The dissent claims that Davis is not applicable because Elvis Davis did not contribute to Travis Davis’s “business ventures in any way, nor did Elvis prove the existence of a business partnership agreement or that any of Travis’s assets were jointly accumulated.” However, the author of the dissent here also wrote for the Court in Wooldridge v. Wooldridge, 856 So.2d 446, 452 (T16) (Miss.Ct.App.2003), where he described and quoted from the holding of Davis:

Further, the supreme court distinguished the facts in Davis from those in Pickens, Taylor and Chrismond by finding that the Davises were never ceremonially married, nor was Elvis an innocent partner to a void marriage; to the contrary, Elvis rejected Travis’s proposal of marriage. Davis, 648 So.2d at 936. In its conclusion, the supreme court stated:
When opportunity knocks, one must answer its call. Elvis Davis failed to do so and thus her claim is all for naught. Our legislature has not extended the rights enjoyed by married people to those who choose merely to cohabit. To the contrary, cohabitation is still prohibited by statute. Elvis was well-compensated during and after the relationship. We see no reason to advocate any form of “palimony” when the legislature has not so spoken. Id.

¶ 20. We find that Lori and David’s relationship was comparable to that of Elvis and Travis Davis. Lori and David chose “merely to cohabit.” They were never married or purported to be married. Lori is not entitled to any type of equitable distribution of property or palimony under Mississippi law.

¶ 21. The crux of the dissent’s position is that Lori was a “substantial contributor to the accumulation of assets with David such that she should receive an equitable share of those assets.” There was ample evidence that Lori was paid for her services. This payment is in contrast to that of an owner who is not paid a wage or a salary but must draw from the net profits. The question is ownership of assets, not who ran or managed the business. Clearly, David owned the restaurant and apartment complex, and Lori had absolutely no ownership interest in either asset.

¶ 22. The chancellor concluded that “the evidence does not support the contention that the parties acquired property through their ‘joint efforts.’ ” Substantial evidence existed to support this holding. Lori and David chose to cohabit without the benefit of marriage. Lori’s name was never included in or added to the title of the home owned by David, nor was she ever made a partner in the restaurant. Lori was paid a wage for her services as an employee at the restaurant. We find the chancellor properly considered and rejected Lori’s claims for equitable division of these properties. We find no error and affirm.

II. Whether Lori is entitled to any protection by the Courts because of her minority upon entering the cohabitation relationship.

¶ 23. Lori next contends that her minority at the time she began her relationship and cohabitation with David obligates courts of this State to protect her. Lori argues that Hays v. Lafayette County Sch. Dist., 759 So.2d 1144 (Miss.1999), supports her position and points to the following language:

Because minors need protection, this Court treats them as disabled in a fashion equal to the disability of those suffering from unsound mind. We sanction those who willfully contribute to their delinquency, Miss.Code Ann. § 43-23-25, and alter the names of minors in court proceedings to protect their anonymity. Amacker v. State, 676 So.2d 909 (Miss.1996).
We have been explicit in our intent to protect minors holding that the disabilities of infancy are in fact personal privileges conferred on infants by law, and as such they constitute limitations on the legal capacity of infants, not to defeat their rights, but to shield and protect them from the acts of their own improvidence as well as from acts of others. Mississippi State Bar Ass’n v. Moyo, 525 So.2d 1289, 1293 (Miss.1988).

Hays, 759 So.2d at 1148 (¶¶ 28-29).

¶ 24. First, we note the language quoted by Lori comes from the dissent. Second, Hays offers no authority for the facts we encounter in this case. In Hays, a child was injured on a public school bus. Id. at 1143(112). The child’s parent filed suit two years after the incident. Id. The supreme court held that the one-year statute of limitations under the Mississippi Tort Claims Act was not tolled by the minor savings clause. Id. at 1148 (¶ 19). There is no correlation between the facts and law in Hays and the facts and law in this case. Hays is simply not applicable.

¶ 25. We are certainly sympathetic with Lori’s plight and the fact that she entered this relationship when she was yet a mere child. However, this action was not brought during Lori’s minority or within three years thereafter. Mississippi Code Annotated section 15-1-59 (Rev.2003) specifically provides a savings clause for minors, tolling the applicable statutes of limitation until the child reaches the age of majority. Here, Lori waited until she was twenty-seven years old to seek the aid or protection of the courts. This was well after she reached the age of majority and not within the three year statute of limitations for any claim she may have had.

¶ 26. Our decision in this matter is also guided by the fact that, upon reaching the age of majority and remaining in the non-marital, cohabitation relationship, Lori thereby accepted and, arguably, ratified the acts that occurred during her minority. Furthermore, Lori became involved with the restaurant and apartments well after she reached the age of majority. David purchased the restaurant in 1997 when Lori was twenty-three years old. The apartments were purchased in 1999 when Lori was twenty-five years old. Lori was not a minor when she assisted David with these businesses. She cannot now plead that, because of her minority when she entered the relationship, she deserves the court’s protection and division of assets that were acquired after she became an adult.

¶ 27. We find that because Lori waited until the age of twenty-seven to bring this action against David, she is afforded no protection under the law as a minor. We therefore affirm the decision of the chancellor.

III. Whether a constructive trust was established when Lori began contributing financial resources and domestic efforts to their businesses and home.

¶ 28. Lori argues that because she worked and contributed to all of the businesses and the home, David held these properties in a constructive trust for her. In determining whether a constructive or resulting trust exists, the courts generally apply a standard set forth concisely in Russell v. Douglas, 243 Miss. 497, 505-6, 138 So.2d 730, 734 (1962):

A constructive trust is a fiction of equity. It is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that a holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee. The equity must shape the relief and courts are bound by no unyielding formula.... It arises regardless of intention or agreement, express or implied.... The trust is raised by implication of law. Fraud need not be shown.

(citations omitted).

¶ 29. A constructive trust will generally be raised “where, at the time the promise is made, the grantee does not intend to perform it, or it is intentionally false, or where confidential relationships exist between the parties and there is no other consideration for the conveyance except the promise, or where the promise is the inducing cause of the conveyance, no other consideration being given, and is relied on by the grantor.” Griffin v. Armana, 687 So.2d 1188, 1195 (Miss.1996). Clear and convincing proof is necessary to establish a resulting or constructive trust. Allgood v. Allgood, 473 So.2d 416, 421 (Miss.1985).

¶ 30. In this case, Lori failed to offer clear and convincing evidence of a constructive trust. The chancellor found David to be the legal owner of title on all the property in question. Although there was testimony that David promised to marry Lori, the record does not support that he ever promised to convey any ownership interest in these properties. A constructive trust was not established, and Lori is not now entitled to division of the property under this theory.

¶ 31. THE JUDGMENT OF THE ITAWAMBA COUNTY CHANCERY COURT IS AFFIRMED. COSTS ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., AND SOUTHWICK, P.J., IRVING, AND CHANDLER, JJ„ CONCUR. BRIDGES, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY MYERS, J., IN PART. LEE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J., THOMAS AND MYERS, JJ. BRIDGES, J., JOINS THIS SEPARATE OPINION IN PART.

BRIDGES, J.,

CONCURRING IN PART, DISSENTING IN PART:

¶ 32. In this separate opinion I concur with the majority on the second and third issues of this appeal that Nichols should not be afforded protection by her minority status and that no constructive trust was formed by and through their relationship with each other. However, I join with Judge Lee’s dissent on the first issue of this appeal that Nichols is entitled to an equitable division of the couple’s property. I would, however, like to emphasize a substantial injustice present in Mississippi domestic relations law that neither opinion addressed in the hope of its further review by the Mississippi Supreme Court.

¶ 33. Ms. Nichols lived with Mr. Fun-derburk for approximately twelve years without formalizing their relationship through marriage. During that time she bore him two children that will forever bear the stigma of bastardization. She also performed all the household duties of a wife and paid for a significant amount of the household expenses and improvement with her own income. She worked for Mr. Funderburk in his restaurant and helped manage it and make it a success as many wives of business owners do. However, since they were never married a strict interpretation of the case law of this state allows Mr. Funderburk to simply walk away from Ms. Nichols taking all of his assets with him and does not consider the potentially destitute situation in which a woman like Ms. Nichols would be left.

¶ 34. There are hundreds of cases like Ms. Nichols’s in our courts today and the number continues to grow but our system does not afford them any benefits or relief. In Mississippi there is a public interest in marriage and historically the law favors marriage. J.W. Bunkley, Jr. & W.E. Morse, On Divorce and Separation in Mississippi § 1.02(7) (The Harrison Company ed.1957). It seems that in a judicial system that favors marriage that system would not reward someone for cohabitation without marriage the way this court is rewarding Mr. Funderburk.

¶35. Mr. Funderburk has the reward of housework, fathering two children, child care, insurance costs, living expenses and restaurant managerial responsibilities all performed for him by Ms. Nichols for about twelve years for the measly sum of her weekly restaurant salary of $240 a week. At the end of this relationship under the law as it is today he is able to walk away owing nothing more to this woman who failed to acquire any wealth or assets of her own because of her relationship and responsibilities to him.

¶ 36. If the Supreme Court of Mississippi truly favored marriage it would provide consequences for those in our state who continue to live together in a marriage-like state but without actually getting married. Consequences that would be equitable and fair for both parties involved considering the individual opportunities for personal gain and asset accumulation they forewent in order to contribute to their relationship. This would not allow one in such a relationship to take advantage of the other and leave them in a financial position much worse than that in which they had been accustomed.

¶ 37. The supreme court in Taylor v. Taylor, 317 So.2d 422 (Miss.1975), noted that the chancellor did not follow the strictest interpretation of the law but allowed for a just result necessary due to the circumstances of the people involved. In Taylor, two people lived together without the benefit of marriage for eighteen years and the chancellor awarded “support” payments to the woman, not alimony, because he felt the man had an obligation to support her. Id. I agree with both the holding and especially the reasoning in Taylor and hope our supreme court will require a similar standard throughout the state. This action would hopefully encourage those who could marry under the laws of our state to legally marry rather than merely cohabitate.

¶ 38. Mr. Funderburk owed support obligations to Ms. Nichols due to his relationship with her and this State should reevaluate its position regarding this issue and afford women like Ms. Nichols the benefits they deserve.

MYERS, J., JOINS THIS SEPARATE WRITTEN OPINION IN PART.

LEE, J„

DISSENTING:

¶ 39. While I understand the majority’s interpretation of certain precedential case-law, I respectfully disagree with its application of such law to the present case. As I interpret these cases and our standard of reviewing the findings of a chancellor, I conclude that the chancellor was clearly erroneous, and we must reverse and remand with instructions that the chancellor equitably distribute property accumulated through the joint efforts of David and Lori.

¶ 40. First, I note that David failed to file a brief.

While failure to file a brief is tantamount to a confession of error: Automatic reversal is not required where the appellee fails to file a brief. The appellant’s argument “should at least create enough doubt in the judiciousness of the trial court’s judgment that this Court cannot ‘say with confidence that the case should be affirmed.’ ” Where the appellant’s brief makes out an apparent case of error, however, this Court is not obligated to look to the record to find a way to avoid the force of the appellant’s argument.

Graham v. Graham, 767 So.2d 277 (¶ 6) (Miss.Ct.App.2000) (citations omitted). Lori has made out an apparent case of error, and I find that the chancellor’s neglect to notice such is reversible.

¶41. The majority declines to explain in detail those facts concerning certain of Lori and David’s supposed assets, including the restaurant and the shared home; thus, I do so to support my conclusion that the chancellor committed reversible error.

¶ 42. Several people testified at trial concerning Lori’s involvement in the family’s restaurant business. Nearly every witness testified that Lori was in the restaurant every time he or she went there, but David was only there sporadically. Lori testified that she essentially managed the restaurant, ordering supplies, hiring and firing workers, and handling financial matters, and for this she was paid two-hundred forty dollars per week. David denied Lori had any role other than waitress and general employee, and he argues he paid her five-hundred dollars per week. Lori testified that she used the money she made at the restaurant to pay for groceries, gas, and a babysitter for their two children. She also testified that she bought her own car, paid for all the furniture for their home, paid for new carpet and most appliances, maintained insurance on the daughters, bought clothes for the children, bought the girls’ Christmas gifts, and paid most bills, with David contributing little or nothing towards these expenses.

¶ 43. David’s father owned the restaurant prior to David, and David financed purchase of the restaurant from his father in part through a bank loan of $25,000. Six weeks before trial, David sold the restaurant to Terry and Candy Conwill for $45,000. With the proceeds from the sale, David paid off a $9,000 note, which he had borrowed to make improvements to the restaurant. He also paid off another bank loan for $6,000, which he had borrowed to purchase lawn care items used when he was in the lawn maintenance business. David gave his dad $20,000 for what he claims was his father’s half-interest in the business, although Lori testified that David gave his father $25,000 for the business when he purchased it from him. Of the remaining $10,000 from the purchase price, David testified that he used $5,000 for bulldozer work at the Mustang apartments, and also used $1,600 for the apartments. Of the original $45,000, this leaves $3,400 for which David had no explanation as to its whereabouts.

¶ 44. The evidence and testimony showed that Lori was an integral part of the restaurant’s operation for many years, so much so that I find her efforts were “joint” with those of David as to entitle her to equitable distribution of proceeds from the sale of the business. Witnesses testified that Lori, for the most part, “ran the show” at the restaurant, hiring and firing and managing the business, always there when the restaurant was open. The chancellor even acknowledged in her opinion that, “Lori worked in the restaurant, apparently managing the business with little help from David ...” but notes that Lori’s name was not added to the restaurant business, as if this single point is the major determinant. I find the chancellor erred in finding that Lori’s weekly pay at the restaurant, which was used to pay for childcare for her and David’s children and for gas and groceries for the family, precluded her from qualifying as a “partner” in the business. Accordingly, I would reverse and remand with orders that the chancellor review David’s dissipation of the proceeds from the sale of the business and equitably divide such proceeds between David and Lori.

¶ 45. Looking to the “marital” home, I note that the chancellor failed altogether to address this asset. The scant evidence in the record concerning the home was testimony that David paid the mortgage and he and his mother signed the original mortgage for the purchase of the home. Lori testified that she and David split paying utility bills and, except for the washer and dryer, she bought all appliances for the home, all the furniture, carpet, linoleum, paint, and all other furnishings for the inside of the home. The home increased in value from $16,000 at the time of purchase to approximately $55,000 at the time of trial. Although David paid mortgage payments, Lori testified she paid part of the utility bills, and her additional contributions to furnishing and maintaining the interior of the home certainly increased the value of the home such that she is entitled to some of the equity which had accumulated.

¶ 46. Lori testified that David often promised her that he would marry her, but when the time came for David to follow through, he always came up with an excuse not to get married. Throughout their entire relationship, Lori testified that she never left David, and she considered them to be married, just without a license. David denies ever talking of marriage with Lori, citing his prior marriage to another woman and his belief that a second marriage would be wrong for him.

¶ 47. In denying Lori’s request for equitable distribution, the chancellor noted that Mississippi does not authorize awarding alimony when there has been no valid marriage. See Aldridge v. Aldridge, 116 Miss. 385, 397-98, 77 So. 150, 150-51 (1918). She also referred to supreme court cases in which the parties were not married to one another at the time of their separation, but where the court considered equitable distribution. See Davis v. Davis, 643 So.2d 931, 933 (Miss.1994) (couple never married, and court declined to order equitable distribution finding the woman was duly compensated at the separation for any economic contribution she made to the relationship); Pickens v. Pickens, 490 So.2d 872, 875 (Miss.1986) (couple married then divorced and resumed cohabitation; upon final separation, the court awarded woman equitable distribution for her domestic services rendered); Taylor v. Taylor, 317 So.2d 422, 422-23 (Miss.1975) (man was aware that putative wife of eighteen years had never divorced previous husband; court found that equity required equitable distribution to putative wife upon separation); Chrismond v. Chrismond, 211 Miss. 746, 757, 52 So.2d 624, 629 (1951) (husband never divorced previous wife and court found putative wife was entitled to equitable distribution for property accumulated through joint efforts). In the present case, the chancellor concluded:

At the case at bar, there is no record that a partnership was formed between Lori and David pertaining to the restaurant business or the apartment complex, and in fact Lori was paid a weekly salary for her work at the restaurant. Although she appeared to be instrumental in the restaurant business, her work was managerial in nature and she was thus compensated as such. The evidence does not support the contention that the parties acquired property through their “joint efforts.”
Although the Court is extremely sympathetic to Lori’s plight, there is no legal remedy existing at this time to compensate her for the 14 years that she chose to cohabitate without the benefit of marriage.
Therefore, her claim for equitable division of the property obtained during her cohabitation with David is denied.

¶ 48. I also note this Court’s addition of Wooldridge v. Wooldridge, 856 So.2d 446 (Miss.Ct.App.2003) to the Davis, Pickens, Taylor and Chrismond line of cases. In Wooldridge, much like in Pickens, the couple was legally married for a length of time, then divorced and resumed cohabitation. At the final separation, the former wife sought equitable distribution of assets acquired during the time the couple cohab-itated after the divorce. In both Wool-dridge and Pickens the appellate courts found the woman was entitled to equitable distribution for services rendered or assets accumulated during the time she was living with the man. Wooldridge, 856 So.2d at 452 (¶ 17); Pickens, 490 So.2d at 875-76. This Court stated in Wooldridge-.

Steve and Debra resumed cohabitation approximately one month after their divorce, and but for want of obtaining another marriage license, they lived in the same relationship in which they had lived from 1973 through 1994, holding themselves out to the public as well as their two daughters as having legally remarried. While we do not sanction palimony, we do believe in equitable distribution consistent with each party’s contribution.
This case presents a unique situation, not altogether unlike Chrismond, Taylor and Pickens, in which, although the previously married parties were not married at the time of separation, equity requires that the chancellor compensate the woman for her joint efforts in building the assets of the man. As a result, we find no error in the chancellor’s adherence to this Court’s prior directive to compensate Debra for her services as a caregiver.

Wooldridge, 856 So.2d at 453 (¶¶ 19-20).

¶ 49. In Chrismond, Taylor, Pickens, and Wooldridge, the couples all actually married or purported to marry. In Davis, as in Lori and David’s situation, the couple never actually married. Although Davis and the current situation are similar in some aspects, I find distinction. In Davis and in the present case, each couple lived together for roughly thirteen years, and during that time, a child or children was born to each couple. Davis, 643 So.2d at 932. The similarities end here. Travis Davis’s mistress, Elvis, did not contribute to Travis’s business ventures in any way, nor did Elvis prove either the existence of a business partnership agreement or that any of Travis’s assets were jointly accumulated. Id. at 933. In contrast, testimony at trial revealed that Lori was a substantial contributor to managing David’s businesses, plus she provided funds for household expenses and childcare costs with David contributing little or nothing. In Davis, upon separation, Travis Davis purchased a house for Elvis titled in her name, he remodeled and furnished the home, plus gave Elvis money for other household furnishings and bought her a new vehicle. Id. To the contrary, when Lori left David, David gave her nothing.

¶ 50. I recognize the rules which prohibit palimony and which condone marriage only as the joining of a man and a woman in conformity with state law. See Aldridge, 77 So. at 150-51; Miss.Code Ann. § 93-1-1 (Supp.2002). I do not purport to usurp legislative authority nor condone such action here. However, I recognize that our law sanctions an equitable division of property accumulated by two persons as the result of their joint efforts. See Wooldridge, 856 So.2d at 452 (¶ 17); Pickens, 490 So.2d at 875-76; Taylor, 317 So.2d at 423; Chrismond, 211 Miss, at 757, 52 So.2d at 629.

¶ 51. The supreme court found in Taylor:

The chancellor stated that after the parties had lived together in a relationship of husband and wife for a long period of time that it would not be fair and equitable for him to walk out and leave her as if she were a perfect stranger.... These people lived together and shared the vicissitudes of life for eighteen years. The separation cast her adrift just as surely as if she had been his lawful wife.

Taylor; 317 So.2d at 422-23. In Taylor, the supreme court further found that the chancellor could not hold to the strict letter of the law if it required him to ignore the fact that he was dealing with human beings. Id. at 423. In the present case, equity prevents David from leaving Lori as “a perfect stranger” without equitable distribution, and I find the chancellor erred in failing to so find.

¶ 52. I find Lori was a substantial contributor to the accumulation of assets with David such that she should receive an equitable share of those assets. Accordingly, I would reverse and remand to the chancellor with instructions that she equitably divide proceeds from the sale of the restaurant which were accumulated due to joint efforts of David and Lori, and that she obtain an appraisal of the home and equitably distribute to Lori her fair share of such value. I disagree with the majority’s conclusion that the chancellor’s decision was supported by facts from the record. Accordingly, I dissent and would reverse and remand.

KING, P.J., THOMAS AND MYERS, JJ., JOIN THIS SEPARATE WRITTEN OPINION. BRIDGES, J., JOINS THIS SEPARATE WRITTEN OPINION IN PART.


source: Caselaw Access Project

author: THOMAS, J.,

license: Public Domain

text:
    Jackie OWENS, individually and on behalf of all other Death Beneficiaries of Terry Owens, Appellant, v. Paul MAI d/b/a Crystal Springs Mobile Home Parks, Appellee.
    No. 2002-CA-01338-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2003.
    Rehearing Denied Feb. 17, 2004.

      Michael S. Allred, Ottowa E. Carter, Jackson, attorneys for appellant.
    William E. Ready, Jr., Meridian, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and IRVING, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Jackie Owens appeals the decision of the Copiah County Circuit Court dismissing her wrongful death suit for expiration of the applicable statute of limitation. This was the second suit filed on the same cause of action, the first having been dismissed for want of proper service of process. On appeal, Owens asserts one error:

THE SECOND SUIT WAS NOT BARRED BY THE STATUTE OF LIMITATION

FACTS

¶ 2. In 1996, Jackie Owens and her husband, Terry, were residents at the Crystal Springs Mobile Home Parks, owned and operated by Paul Mai. In November 1996, Terry Owens was stabbed and killed on the premises by Mark Tappen who had been hired by Mai to provide security to the Parks.

¶ 3. Jackie Owens filed a wrongful death action against Mai for negligent employment of Tappen and negligent supervision, among other claims, in November 1997 0Crystal Springs I). Owens attempted to serve Mai personally on March 10,1998 by leaving a copy of the summons and complaint with his wife at their usual place of abode. However, Mai denied ever receiving a copy of the documents by mail as is required under Rule 4(d)(1)(B) of the Mississippi Rules of Civil Procedure and the return of service lacked any language indicating a copy had been mailed to Mai. Mai included this as a defense in his answer.

¶ 4. Three years later, in May 2001, Mai moved for dismissal based upon this service defect as well as the failure of the return of service to include the required language. In her answer, Owens asserted she had caused the summons and complaint to be mailed to Mai and submitted an amended return of service which included the necessary language. The court granted the motion to dismiss on the ground that “this service of process was defective as to form and wholly insufficient, to bring Paul Mai before the Court.” Owens then filed a motion for reconsideration.

¶ 5. While the -motion was being considered, Owens refiled the same suit (Crystal Springs II) on November 2, 2001, nearly five years after the death of her husband and two years after the expiration of the statute of limitation. Owens’ Crystal Springs I motion to reconsider was denied. Mai again filed for dismissal, this time on the ground that the statute of limitation had expired. In opposition to this motion, Owens asserted her cause of action fell within the purview of the “savings statute.” Miss.Code Ann. § 15-1-69 (Rev. 1995). The trial court disagreed and granted the dismissal. This appeal followed.

ANALYSIS

¶ 6. Owens did not appeal the dismissal of her first suit, Crystal Springs I. The only appeal before us is the dismissal of Crystal Springs II. However, whether or not the trial court erred in Crystal Springs II necessarily entails a review of the nature of the dismissal in Crystal Springs I.

¶ 7. In defending against the motion for dismissal in Crystal Springs II, Owens sought the protection of the Mississippi “savings statute.” The pertinent part of this statute provides that if any action, duly commenced within the time allowed, shall be abated or otherwise avoided or defeated for any matter of form, the plaintiff may commence a new action, even if the statute of limitation has expired, if the new suit is begun within one year from the date of abatement. Miss.Code Ann. § 15-1-69 (Rev.2003). Neither party disputes that by the time Crystal Springs II was filed the applicable statute of limitation had long passed.

¶ 8. It has long been accepted that dismissal of a case for lack of jurisdiction is a matter of form for purposes of the savings statute. Hawkins v. Scottish Union & Nat’l Ins. Co., 110 Miss. 23, 29, 69 So. 710, 712 (1915). This rule has remained constant through modern cases. Wertz v. Ingalls Shipbuilding, Inc., 790 So.2d 841, 844(¶ 7) (Miss.Ct.App.2000). Whether or not “jurisdiction” under these circumstances is limited to subject matter jurisdiction is the question we must decide.

¶ 9. In dismissing the second suit, the trial court made the following finding:

Since the plaintiffs lawsuit was dismissed for improper service of process and not lack of jurisdiction, the “saving statute” MS Code Ann. § 15-1-96 cannot revive the Crystal Springs I lawsuit via Crystal Springs II. At this point, the plaintiffs claim is barred pursuant to MS Code Ann. § 15-1-3.

¶ 10. With respect to the trial court, we can find no basis for the distinction made between “service of process” and “jurisdiction” in applying the savings statute. By distinguishing between service of process and jurisdiction, we must assume the court intended to refer only to subject matter jurisdiction as a “matter of form” to bring the suit under the statute. Both personal jurisdiction and subject matter jurisdiction, however, are necessary before a court may validly try and adjudicate a case. Fetters v. Petters, 560 So.2d 722, 723 (Miss.1990). Sufficient service of process is one of the two manners in which personal jurisdiction may be exercised over a defendant and thus render him subject to the adjudication of the trial court. Mansour v. Charmax Indus., Inc., 680 So.2d 852, 854 (Miss.1996).

¶ 11. Although Mississippi has not ruled specifically on the inclusion of personal jurisdiction as a matter of form in these circumstances, dicta from the ease which established “jurisdiction” as a matter of form seems to indicate that such inclusion would be proper, it was merely absent as an issue from the case pending before that court:

It is true that in all of the cases from those states which have come under our observation the defect in jurisdiction because of which the causes were dismissed related to the parties, and not to the subject-matter. Nevertheless those cases are here in point, for a court is just as powerless to render a valid judgment when without jurisdiction of the person as it is to render such a judgment when it is without jurisdiction of the subject-matter.

Hawkins, 110 Miss, at 30, 69 So. at 712.

¶ 12. This same case gave us the justification for savings statutes such as the one here at issue: that a cause of action ought not be lost for a matter not affecting the merits of the case when the fault may be remedied merely by new process being issued. Id. at 31, 69 So. at 713 (quoting with approval Coffin v. Cottle, 33 Mass. 383, 386 (1835)). This also is a concept which remains current in the law. Ryan v. Wardlaw, 382 So.2d 1078, 1080 (Miss. 1980).

¶ 13. The dismissal of Crystal Springs I falls within this purview. The only reason for dismissing was the failure to mail a copy of the complaint and summons to the defendant. Personal jurisdiction was thus lacking. We find no reason to assume that “jurisdiction” encompasses only subject matter jurisdiction when both are necessary to any valid adjudication. The dismissal of Crystal Springs II was therefore improper under the Mississippi savings statute.

¶ 14. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT IS REVERSED AND REMANDED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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


author: MCMILLIN, C. J.,

text:
    Darrell SWINDLE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-01668-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2003.

      Darrell Swindle, appellant, pro se.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
   ON MOTION FOR REHEARING

MCMILLIN, C. J.,

for the Court.

¶ 1. The motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted. After pleading guilty to two counts of uttering a forgery in the Circuit Court of Pearl River County without an accompanying sentence recommendation from the State, Darrell Swindle was sentenced to two consecutive terms of fifteen years each, with five years suspended. Swindle subsequently filed a motion for post-conviction relief contending that the sentence was unreasonably harsh under the factual circumstances of the case and that he received ineffective assistance of counsel. We conclude that, as to the guilty pleas themselves, Swindle has shown no entitlement to relief but that, as to the sentences imposed, there were fundamental defects in the procedure that could and should have been raised by defense counsel and which may, therefore, entitle Swindle to relief. We, therefore, reverse the summary denial of post-conviction relief and remand this cause for further proceedings consistent with the terms of this opinion.

I.

Discussion of Relevant Facts

¶ 2. Swindle was indicted for issuing two checks on the account of one Shelia J. Odom when he knew, in fact, that the signatures affixed to the two checks were not those of Ms. Odom. One check was issued to Bill’s Quick Stop in the amount of $49.82 and the other was issued to Wal-Mart in the amount of $588.41. According to the indictments, both of the checks were fraudulently issued by Swindle on the same day.

¶ 3. After Swindle agreed to plead guilty to both counts without a recommendation as to sentence from the prosecution, the trial court deferred sentencing for four days. At the sentencing hearing, the only presentation by the defense was Swindle’s own assertion to the court that “I’ve had a drug problem for a while,” and that, but for that problem, “I probably wouldn’t be standing here right now.”

¶ 4. The court offered the opportunity for any victims of the crimes to come forward and speak, but no one presented themselves. Instead, the prosecution indicated that one victim — Shelia Odom — had filed a written victim’s impact statement.

¶ 5. It was at that point that the trial court sentenced Swindle to two terms of fifteen years each, with the sentences to run consecutively, then added that “[t]he last five years of that sentence will be served on post-release supervision.... ”

¶ 6. No appeal was taken from the judgment of sentence; however, approximately eight months after the sentence was pronounced, Swindle filed a pro se motion for post-conviction relief. Having reviewed the contents of Swindle’s motion and supporting brief, this Court concludes that a fair interpretation of the issues raised in this proceeding are as follows:

(a) In determining an appropriate sentence, the trial court improperly relied on information in Odom’s victim impact statement that was objectionable as being outside the intended scope of such a statement, and the improper information was highly inflammatory in nature. As a result, Swindle contends that his sentence was unconscionably harsh in light of the nature of the crimes themselves.

(b) The proper statutory procedure for introduction of a victim impact statement was not followed, thereby depriving Swindle of the opportunity to rebut damaging and false information contained therein.

(c) The trial court relied on evidence of a prior criminal conviction to justify the length of sentence when, in fact, Swindle had been acquitted of the alleged prior crime.

(d) Swindle received ineffective assistance of counsel because of trial counsel’s failure to object to the improper victim impact statement or to provide competent evidence to contradict the trial court’s erroneous understanding of Swindle’s prior criminal record.

¶ 7. For reasons we will proceed to explain, this Court concludes that issues (a) through (c), insofar as they constitute a direct attack on the length of the sentence imposed on Swindle, are not properly before the Court since all of them could have been raised in a direct appeal from the judgment of sentence. However, the Court further finds that, in the context of the effectiveness of Swindle’s representation by counsel as to the sentencing phase only of these two pleas, there is, at the least, sufficient indication of Swindle’s right to relief that an evidentiary hearing on the merits of his complaints should be conducted.

II.

Failure to Take a Direct Appeal from the Judgment of Sentence

¶ 8. The law is clear that, even when a defendant pleads guilty to the crime itself, if he is aggrieved as to the sentence imposed by the trial court for any reason cognizable under the law, the defendant is entitled to have the sentence reviewed by a direct appeal. Campbell v. State, 743 So.2d 1050, 1052(¶ 5) (Miss.Ct.App.1999). All of the complaints raised by Swindle directly relating to the manner in which he was sentenced existed immediately at the conclusion of the sentencing hearing and were, thus, appropriate matters for a direct appeal. The Mississippi Uniform Post-Conviction Collateral Relief Act specifically provides that

[djirect appeal shall be the principal means of reviewing all criminal convictions and sentences, and the purpose of this chapter is to provide prisoners with a procedure, limited in nature, to review those objections, defenses, claims, questions, issues or errors which in practical reality could not be or should not have been raised at trial or on direct appeal.

Miss.Code Ann. § 99-39-3(2) (Supp.2003) (emphasis supplied).

¶ 9. This Court is satisfied that each of Swindle’s direct complaints regarding the manner in which he was sentenced could and should have been the subject of a direct appeal, and for his failure to take such an appeal, we conclude that those issues are barred from consideration in this post-conviction relief proceeding. Miss.Code Ann. § 99-39-21(1) (Supp.2003)

III.

Ineffective Assistance of Counsel

¶ 10. Nevertheless, different considerations arise when those same complaints in regard to Swindle’s sentencing are viewed in light of his additional complaint that he was denied effective representation of counsel, at least during the sentencing phase of the circuit court proceedings. Such claims are subjected to a well-established two-prong test in which it must be shown that the defendant’s performance was deficient and that the deficiency substantially deprived the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 11. Looking at Swindle’s dissatisfaction with the manner in which he was sentenced from the standpoint of whether he was effectively represented by counsel, we must (a) examine the various complaints raised by Swindle, (b) determine whether they would appear to have merit, and (c) consider whether defense counsel, in a reasonably vigorous defense of his client’s rights, ought to have raised the issues contemporaneously, and, if so, (d) whether it is reasonable to conclude that a different result would, in all probability, have been obtained had he done so. We will, therefore, proceed to consider the various issues in that context.

A.

The Contents of the Impact Statement

¶ 12. One of the principal purposes of the victim impact statement is “to provide information to the court about the direct impact of the crime on the victim ...” in order to better aid the trial court in imposing “just punishment.” Miss.Code Ann. § 99-19-153(Rev.2000). To that end, the relevant statute permits such a statement from the victim that is intended to provide “information about the financial, emotional and physical effects of the crime on the victim ... and ... the circumstances surrounding the crime and the manner in which it was perpetrated.” Miss. Code Ann. § 99-19-155(b)(Rev.2000) (emphasis supplied).

¶ 13. As an apparent safeguard against the improper use of a victim impact statement, the law requires that the statement be submitted at least forty-eight hours in advance of the sentencing date to the defendant and to the defendant’s counsel. Miss.Code Ann. § 99-19-159(l)(Rev.2000).

¶ 14. In this case, there was no victim impact statement from either of the business entities where the checks were wrongfully negotiated by Swindle. Rather, the only victim impact statement was by Shelia Odom, on whose account the checks were written. In keeping within the confines of the statute, therefore, it would appear appropriate only for Odom to inform the court of the financial, emotional and physical effects on her of having two forged checks issued on her bank account. Instead, the victim impact statement recited as fact a number of allegations concerning threats of death or physical harm against Odom and her family allegedly made by Swindle ten years before the forgeries occurred. According to Odom’s statement, these threats would be carried out “if she ever had anything to do with sending him [Swindle] to jail.” Odom then professed to an ongoing fear for the lives of her children based on this alleged ten year old threat (not since renewed according to the contents of the statement) claiming that this fear arose immediately after Swindle issued the two forged checks and, thus, exposed himself to the possibility of a jail term.

¶ 15. This Court has serious reservations regarding the propriety of such information in a victim impact statement. It certainly far exceeds the limited purposes for which such statements may be offered as a part of the sentencing process as outlined in the applicable statute. The statute plainly limits the contents of the statement to matters relating to the direct impact of the crime itself on the victim and does not appear to condone the kind of open-ended accusations of other incidents of wrongful conduct by the defendant that are contained in Odom’s statement.

¶ 16. The contents of the statement relating to alleged threats of harm to Odom and her family were emphasized at the sentencing hearing by the prosecuting attorney’s remarks indicating that Odom was not going to appear to offer her statement in person “for obvious reasons after reading the victim impact statement.”

¶ 17. It is unclear from the record whether the defendant and the defense counsel were furnished this wide-ranging and potentially inflammatory victim impact statement forty-eight hours in advance as the statute required. It is entirely clear, however, that defense counsel did nothing to object to the introduction of the statement or — even assuming the propriety of such a statement — to offer any evidence to deny its accuracy or otherwise lessen its impact on the court’s deliberation of an appropriate sentence.

¶ 18. This Court concludes that, in these circumstances, a reasonably competent attorney would find it necessary in the vigorous defense of his client’s rights to make some effort to exclude or, at least, counteract such a damaging victim impact statement and that the failure to do so in this case falls below the standard of competence required by the Strickland decision. We take note that the trial court imposed what would appear to be an unusually lengthy sentence on the two bad check charges where the fraudulently issued checks totaled in the aggregate less than $700. In that circumstance, we are not convinced that the trial court would have seen fit to impose such severe punishment had defense counsel opposed the introduction of this somewhat inflammatory victim impact statement or, if that effort failed, presented evidence tending to blunt its impact. See, e.g., White v. State, 742 So.2d 1126, 1137 (¶ 46) (Miss.1999). For that reason, we find that, at a bare minimum, Swindle was entitled to a full eviden-tiary hearing on his motion to determine whether some appropriate post-conviction relief from his judgment of sentence was in order. The denial of that hearing was error requiring reversal.

¶ 19. In a motion for rehearing filed by the State, the Attorney General recites at some length from the statutory declaration of purpose behind the Victim Impact Statement Act (Miss.Code Ann. § 99-19-153 (Rev.2000)). The State then asserts that our conclusion that the Victim Impact Statement contained information appearing to exceed the permissible bounds laid out in the statute regarding the contents of the statement has the effect of limiting, rather than expanding, the information that the trial court may properly consider in assessing punishment. That assertion is patently incorrect. The decision does nothing to limit the gathering of pertinent information to be compiled into a presentence report for the trial court’s enlightenment in determining appropriate sanctions against a convicted defendant. The statutory scheme giving birth to the victim impact statement makes clear that, in the normal course, the statement is but one part of the entire presen-tence evaluation report to be prepared by the presentence investigator. Miss.Code Ann. § 99-19-157(l)(Rev.2000). While it cannot be doubted that there are a wide-ranging number of factors that the trial court may consider in determining an appropriate measure of punishment, the fact remains that, under the clear pronouncements of the statute, a Victim Impact Statement can properly provide only a specifically limited portion of that relevant information that relates to

the financial, emotional and physical effects of the crime on the victim and the victim’s family, and specific information about the victim, the circumstances surrounding the crime and the manner in which it was perpetrated.

Miss.Code Ann. § 99-19-155(b)(Rev.2000). Alleged ten year old death threats or threats of serious bodily injury, by any imaginable stretch, cannot be said to fall under “the circumstances surrounding the crime” of issuing two forged checks drawn on the victim’s checking account.

B.

Improper Procedure

¶ 20. As we have observed, it is unclear from the present record whether Swindle and his attorney were furnished Odom’s statement forty-eight hours in advance of the sentencing hearing as required by the statute. Miss.Code Ann. § 99 — 19— 159(l)(Rev.2000). As a result, we cannot say with certainty that a violation occurred nor, therefore, can we assess the impact of such a violation on Swindle’s constitutional right to a fundamentally fair sentencing proceeding before the trial court.

¶ 21. Because we are reversing and remanding, it is enough to observe that, at such time as the matter of the admissibility and effect of this victim impact statement arises, after remand, we would expect that the notice requirements of the statute would be scrupulously followed.

C.

Consideration of Other Convictions in Sentencing

¶ 22. Apparently, the trial court obtained a presentence report on Swindle before imposing his sentence. That report is not a part of the record in the matter now before us. It cannot be doubted, however, that the contents of that statement had substantial effect on the trial court’s decision to impose what appears on its face to be a rather severe punishment. In the order denying Swindle’s post-conviction relief motion, the trial court spoke of Swindle’s complaint regarding the severity of his sentence by saying, “[t]hat at the time [of entering his plea] the offender had a record which made him eligible to be sentenced pursuant to Section 99-19-83 to life without parole.... ”

¶ 23. No other reference to the existence of any such prior criminal record appears in the record. There was no effort to indict Swindle as an habitual offender. In his motion, Swindle asserts that he was actually acquitted of at least one prior crime “by a jury in another state.... ” It is impossible to assess the accuracy of that allegation by Swindle because of the lack of information as to what alleged prior conviction or convictions the trial court relied upon in its decision to impose such a lengthy sentence on Swindle. Again, we are satisfied that, if the presentence investigation revealed alleged prior criminal convictions that would tend to bear on the length of sentence to be imposed, defense counsel had some obligation to investigate the matter, especially in the circumstance where the defendant himself was protesting that at least one of the alleged convictions did not, in fact, occur.

¶ 24. Until a better record is created that includes evidence of those prior convictions apparently relied upon by the trial court, this Court cannot effectively evaluate the truthfulness of Swindle’s allegation that he was, in fact, acquitted of at least one of the relevant crimes that would otherwise have potentially exposed him to the possibility of a life sentence. An effective effort at representation by counsel during the sentencing phase would have ensured that such evidence was in the record for appropriate review.

IV.

Final Consideration

¶ 25. In its brief, the State makes the point that Swindle does not directly attack the propriety of his fifteen year sentence on the larger check issued to Wal-Mart, but rather appears to limit his motion and his brief to a claim that the second fifteen year sentence (running consecutively) for issuing a bad check in the small amount of $49.82 was unreasonably harsh. Thus, the State argues, even were relief to be granted, it would be inappropriate to disturb the sentence imposed for the Wal-Mart check.

¶ 26. It is true that litigants appearing pro se are generally to be held to the same standard regarding pleadings and procedure as are those appearing through counsel. Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112, 118 (Miss.1987). Nevertheless, appellate courts are also admonished to pay special attention to the pleadings of pro se litigants to discover whether, though not pled with the clarity that might otherwise be expected, the litigant has raised issues that might have merit. Myers v. State, 583 So.2d 174, 176 (Miss.1991). In that light, we are satisfied that Swindle’s motion effectively raises a justiciable claim that, at the sentencing phase of his proceeding in the circuit court, he received ineffective assistance of counsel that caused him to be sentenced in a more harsh manner than might otherwise have been the case. We are further satisfied that this claim can fairly be interpreted as extending to the purported harshness of the sentences in both of the forgery indictments, and we treat it accordingly.

V.

Conclusion

¶ 27. For the foregoing reasons, we conclude that the trial court in this instance erred in dismissing Swindle’s motion summarily under authority of Section 99-39-11(2), solely insofar as Swindle’s motion alleges ineffective assistance of counsel during the sentencing phase of his proceeding in the circuit court.

¶ 28. We, therefore, reverse and " remand for such further proceedings on Swindle’s motion as are appropriate under Section 99-39-11(3) and those following provisions of the Mississippi Uniform Post-Conviction Relief Act that dictate the course of the proceeding when such a motion cannot properly be summarily dismissed on its face. Those proceedings must specifically include the possibility, if warranted, of vacating the original sentences imposed in this case and reconsideration of more appropriate sentences in light of such further considerations as may arise from the evidence produced in the course of the proceeding on remand.

¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY DENYING DARRELL SWINDLE’S MOTION FOR POST-CONVICTION RELIEF IS REVERSED AND THIS CAUSE IS REMANDED FOR SUCH FURTHER PROCEEDINGS UNDER THE MISSISSIPPI UNIFORM POST-CONVICTION RELIEF ACT AS ARE CONSISTENT WITH THE TERMS OF THIS OPINION. COSTS OF THE APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.

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


author: McMILLIN, C.J.,

text:
    Rosemary HARRISON, Administratrix of the Estate of Sidney Harrison, Deceased, Individually and on Behalf of the Wrongful Death Beneficiaries of Sidney Harrison, Deceased, Appellants, v. B.F. GOODRICH COMPANY, Appellee.
    No. 2002-CA-00271-COA.
    Court of Appeals of Mississippi.
    March 9, 2004.
    Rehearing Denied June 8, 2004.
    Certiorari Denied Sept. 2, 2004.

      C. Kent Haney, Dana J. Swan, Clarks-dale, Attorneys for Appellant.
    O. Stephen Montagnet, W. Thomas McCraney, Jackson, Attorneys for Appel-lee.
    Before McMILLIN, C.J., IRVING and MYERS, JJ.
   McMILLIN, C.J.,

for the Court.

¶ 1. This case comes before the Court as an appeal from a grant of summary judgment in favor of the defendant, B.F. Goodrich Company (hereafter “Goodrich”). It is a wrongful death claim brought on behalf of the wrongful death beneficiaries of Sidney Harrison, who died when the van in which he was riding as a passenger overturned. The beneficiaries were the plaintiffs in the trial court and are the appellants before this Court. For the sake of brevity, they will be referred to as “the Beneficiaries.” The claim against Goodrich consisted of an allegation that the accident resulted when a defectively manu-factored tire bearing the B.F. Goodrich name blew out.

¶ 2. The trial court granted summary judgment based on the uncontested fact that Goodrich did not manufacture or market the allegedly defective tire but that it had been manufactured by another entity having no business connection to Goodrich beyond the fact that Goodrich had entered into a licensing agreement permitting the manufacturer to place Goodrich’s name on the tire.

¶ 3. It is from that ruling that the Beneficiaries have perfected this appeal.

¶ 4. There is an additional issue on appeal involving an unsuccessful attempt by the Beneficiaries to amend their complaint to bring in as additional defendants those entities believed to have been engaged in the actual manufacture of the blown tire.

¶ 5. We find no reversible error in the trial court’s decision to grant summary judgment in favor of Goodrich. We also conclude that the motion for leave to amend was never properly presented to the trial court for decision and must be deemed as having been abandoned; the result being that the matter may not be raised on appeal.

I.

Summary Judgment

¶ 6. The evidence is undisputed that the named defendant, B.F. Goodrich Company, was not directly involved in the design, manufacture, or distribution into commerce of the allegedly defective tire. By affidavits and through depositions, un-contradicted facts emerged showing that Goodrich ceased all tire manufacturing or marketing activities no later than 1988, and that the tire in question, though bearing the trademark “B.F. Goodrich,” was not manufactured until approximately 1991. By that time, another manufacturing entity was producing tires bearing the Goodrich trademark under authority of a trademark licensing agreement between that entity and Goodrich.

¶ 7. The direct allegations in the original complaint against Goodrich set out a products liability claim based on strict liability in tort. Products liability claims based on principles of strict liability for defectively manufactured items were first recognized in Mississippi when the Mississippi Supreme Court applied Section 402A of the Restatement (Second) of Torts in State Stove Manufacturing Co. v. Hodges, 189 So.2d 113, 118 (Miss.1966), which involved the explosion of a water heater. The overarching principles of strict liability for manufacturers and marketers of goods have since been codified by the Legislature in Section 11-1-63 of the Mississippi Code.

¶ 8. Both the original restatement relied on by the supreme court and the legislatively enacted provisions governing strict liability apply by their terms to those actually engaged in the manufacture and marketing of a product. The restatement dealt exclusively with the liability of a “seller,” which necessarily included the manufacturer of a product who put the product into the stream of commerce even though there may have been one or more intermediate sales of the product before it reached the consumer or user who ultimately suffered injury due to the product’s defective or dangerous condition. It is plain that, on the facts of this case, Goodrich cannot be brought into the definition of one on whom strict liability is placed by virtue of Section 402A. The present statute, Section 11-1-63, by its explicit terms, confines product liability claims to manufacturers or sellers of products. Miss. Code Ann. § ll-l-63(a) (Supp.2003). Again, because Goodrich fits neither of these descriptive terms on the uncontro-verted facts before the Court, we are satisfied that Goodrich was entitled to summary judgment on the theory of recovery advanced on the face of the complaint.

¶ 9. However, though there has been no subsequent amendment to the complaint to allege some alternate theory of recovery, it is evident from our review of the briefs and record before this court that the Beneficiaries, by agreement or at least acquiescence, were permitted to raise a separate but related theory of recovery against Goodrich. That theory of recovery has been discussed under the general heading of the “apparent manufacturer” theory. That theory of recovery was set out in Section 400 of the Restatement (Second) of Torts and states, in part, that “[o]ne who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.” Restatement (Second) of Torts § 400 (1965). Other courts have made short work of such claims, pointing out that the section imposes liability only on a party somehow engaged in “putting out” the item and observing that a trademark licensor is not engaged in any aspect of “putting out” the product.

¶ 10. By way of example, in Affiliated FM Insurance Co. v. Trane Co. 831 F.2d 153, 156 (7th Cir.1987), strict liability was sought to be imposed against Trane, who had designed heating equipment that caused a fire, though the equipment itself had been manufactured by Trane-Canada, a legally distinct entity. The court refused, saying that Trane had no part in the “putting out” of the heater since it “was not involved in the manufacture, sale or installation of the heater.” Id. at 156.

¶ 11. In a case specifically dealing with the liability of a trademark licensor for defective products bearing the licensor’s logo, the United States District Court for the Northern District of Mississippi considered a personal injury claim caused by an exploding vehicle battery marketed as a “NAPA 7000 series battery” and purchased from a parts house that was a member of the National Automotive Parts Association (hence NAPA). Harmon v. Nat’l Auto. Parts Ass’n, 720 F.Supp. 79 (N.D.Miss.1989). The court granted summary judgment to NAPA when it was shown that NAPA was a membership organization providing .marketing and consulting services to its members and that it licensed the NAPA trademark to several member, organizations engaged in the manufacture and marketing of parts under the NAPA label. Id. at 80. The court concluded that there was no authority to impose strict liability on NAPA in those circumstances where it was not shown to have been engaged in either the manufacture or distribution of the product. Id.

¶'12. There is one possible distinction between the Harmon case and the one now before us since the court in Harmon went on to specifically note that NAPA did not receive “any sort of financial benefit from the licensing of the trademark.” Id. In the case before our Court, the record reveals that Goodrich extracted a one-time payment of $1,000,000 for the right to use the B.F. Goodrich logo. Goodrich, in its brief, attempts to make the point that no money was received by it for the trademark license in the year that the tire was manufactured; however, the method of payment contractually agreed upon— whether a one-time lump sum payment or an on-going series of payments — does not, in our view, alter the fact that Goodrich was compensated for the use of its trademark name, whereas in the Harmon case, NAPA was not. The question then becomes whether that distinction compels a different outcome.

¶ 13. We determine that it does not. The core fact that Goodrich was not directly involved in the manufacture or distribution of the allegedly faulty tire remains unchanged, and products liability law limits itself to imposing liability on entities engaged in the actual production or sale of goods.

¶ 14. A more compelling argument for liability might be made if it was alleged that an individual specifically selected or relied upon a product on the determination that it bore the trademark of a particular business entity that the individual, for whatever reason, felt comfortable in trusting. In that situation, a business purposely inducing a belief through use of its trademark logo that it was the producer of the product might arguably incur some liability to one injured from such a defective product because of the specific — -and justified — belief that the product was manufactured by the company whose name appears thereon, even if it was shown that the name appeared solely as the result of a trademark licensing arrangement. That claim, however, is not one that falls within the area of products liability law, which imposes strict liability on actual manufacturers and sellers and is the theory of recovery under which the Beneficiaries pm-sued their claim.

¶ 15. The federal district court in Harmon found the proposition that liability might be established on that alternative basis to be “an interesting one,” but concluded that it was not relevant to the case before it since there was neither an allegation nor proof that Harmon had purchased or used the battery based on an understanding that it had been manufactured by NAPA and that NAPA was an entity in which, for some articulated reason, he elected to place substantial trust. Id. at 81. This case is in the same posture.

¶ 16. The evidence shows that Harrison was a passenger in a vehicle belonging to the State of Mississippi, and there is no assertion nor proof that he elected to ride in the vehicle because he was led to believe that the tires, or at least one tire, on the vehicle had been manufactured by Goodrich, a company in which he was prepared to put his trust. For the same reason set out by the federal district court, we find it unnecessary to reach this “interesting question” of a purposely-induced misunderstanding of what entity actually manufactured a product that proved to be unreasonably hazardous.

¶ 17. In concluding that there is no liability for an allegedly defective product on the part of a trademark licensor who was not involved in the design, manufacture, or sale of the product under the facts before us, we note that this appears in accord with the applicable provisions in Section 14 of the Restatement (Third) of Torts, dealing with apparent manufacturer issues. The official comment to the section contains the following commentary:

The rule stated in this Section does not, by its terms, apply to the owner of a trademark who licenses a manufacturer to place the licensor’s trademark or logo on the manufacturer’s product and distribute it as though manufactured by the licensor. In such a case, even if purchasers of the product might assume that the trademark owner was the manufacturer, the licensor does not “sell or distribute as its own a product manufactured by another.” Thus, the manufacturer may be liable under §§ 1-4, but the licensor, who does not sell or otherwise distribute products, is not liable under this Section of this Restatement. Trademark licensors are liable for harm caused by defective products distributed under the licensor’s trademark or logo when they participate substantially in the design, manufacture, or distribution of the licensee’s products. In these circumstances they are treated as sellers of the products bearing their trademarks.

Restatement (Third) of Torts: Product Liability § 14, cmt. d (1998).

¶ 18. We conclude that the trial court was correct in granting summary judgment in favor of Goodrich, and we affirm as to that issue on appeal.

II.

Leave to Amend

¶ 19. The Beneficiaries, after the hearing on Goodrich’s summary judgment motion but while the trial court still had the motion under advisement, filed a motion for leave to amend the complaint to bring in as additional defendants certain entities that were said to have been involved in the manufacture of the tire. These additional defendants had apparently been unearthed after it came to light that Goodrich had not been the tire’s actual manufacturer or marketer. The motion was filed on October 1, 2001.

¶ 20. Within a few days of the filing of the motion for leave to amend, the court entered a written opinion ruling in Goodrich’s favor on the summary judgment motion. A subsequent final judgment was entered on January 17, 2002. Neither the court’s opinion nor the formal final judgment made mention of the motion for leave to amend. The Beneficiaries filed a notice of appeal from that judgment without making any effort to obtain a hearing or ruling on their pending motion for leave to amend. Now, in this appeal, the Beneficiaries contend that it was reversible error for the trial court to not grant the leave to amend.

¶ 21. The denial of a motion by the district court, although not formally expressed, may be implied by the entry of final judgment (which is in effect an overruling of pending pretrial motions) or of an order inconsistent with the granting of the relief sought by the motion. Addington v. Fanner’s Elevator Mut. Ins. Co., 650 F.2d 663, 666 (5th Cir.1981).

¶ 22. In the case before us, the motion for leave to amend was filed on October 1, 2001. Although there is no evidence in the record that a copy of the motion was forwarded to the trial court, we note the standing requirement of Rule 4.03 of the Uniform Rules of Circuit and County Court that “[t]he moving party at the same time [as the motion is filed with the clerk] shall mail a copy thereof to the judge presiding in the action.... ” URCCC 4.03(1). The final judgment, based on the trial court’s ruling on the summary judgment motion, was not entered until January 17, 2002. The Beneficiaries were certainly aware of the fact that, during this extended period of over three and one-half months, the trial court had a motion for summary judgment under advisement, yet the record does not reflect any effort on the Beneficiaries’ part to bring the motion for hearing. “It is the duty of the movant, when a motion ... is filed ... to pursue said motion to hearing and decision by the court.” URCCC 2.04.

¶ 23. Considering all of the foregoing circumstances, we conclude that, in the situation where the court was actually aware of the motion (or certainly would have been on notice of the pending motion had the requirements of Rule 4.03 been followed) and where the Beneficiaries permitted over three and one-half months to pass without making any effort to pursue a ruling on the motion in the face of knowledge that the trial court had taken the summary judgment motion filed against them under advisement, the Beneficiaries must be seen as having abandoned their motion. By suffering the entry of a final judgment against them on these facts without having pursued an actual ruling by the trial court on the merits of their motion to amend or by attempting to bring the matter before the trial court in a post-judgment motion under Rules 59 or 60 of the Mississippi Rules of Civil Procedure, they must now be barred from an attempt to raise for the first time in this appeal the issue of whether the motion should, or should not, have been granted by the trial court. Mitchell v. Glimm, 819 So.2d 548, 552(¶ 11) (Miss.Ct.App.2002) (citing Gatlin v. State, 724 So.2d 359, 369(¶43) (Miss.1998)).

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF TALLAHATCHIE COUNTY IS AFFIRMED. COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: MYERS, J., McMILLIN, C.J.,

text:
    Benny R. KNIGHT, Appellant v. Corey BROOKS, Appellee.
    No. 2002-CA-02093-COA.
    Court of Appeals of Mississippi.
    March 16, 2004.
    Rehearing Denied June 22, 2004.
    Certiorari Denied Sept. 2, 2004.

      Billy Parlin, Ocean Springs, attorney for appellant.
    H. Benjamin Mullen, Pascagoula, attorney for appellee.
   MYERS, J.,

for the Court.

¶ 1. Benny R. Knight filed suit against Corey Brooks in the Circuit Court of Jackson County, Mississippi, seeking damages for personal injuries sustained in an automobile accident that occurred on May 3, 1994. After Knight presented his case and Brooks presented no evidence, the trial court entered judgment on the jury verdict that found for Knight but awarded zero dollars in damages. Knight moved for a new trial on the issue of damages which the trial court denied. From the denial of that motion, Knight appeals and raises the following two issues.

ISSUES PRESENTED

I. Did the trial court abuse its discretion by denying Knight’s motion for a new trial on damages?

II. Was the verdict supported by the evidence or was it a result of bias, passion or prejudice on the part of the jury?

STATEMENT OF FACTS

¶ 2. The evidence reflects that on May 3, 1994, Knight and Brooks were involved in a collision of their motor vehicles. Knight was driving east on U.S. Highway 90 in Pascagoula, Mississippi. Knight stopped at an intersection when the traffic light turned red. After having been stopped for a short time, Knight looked in his rear-view mirror and noticed that a truck was coming toward him at a high rate of speed. Believing the approaching truck was not going to stop, Knight grabbed his steering wheel tightly and was struck from behind by a truck driven by Brooks. The collision totaled Knight’s vehicle and Knight was forced to exit his vehicle through the sunroof. Knight called someone from his place of business to come and pick him up from the scene of the accident.

¶ 3. Knight went to visit his family physician, Dr. Kevin Cooper, on May 4, 1994, the day following the accident. However, the record indicates that Knight went to see Dr. Cooper for a complete physical, not for pains associated with the automobile accident. Knight admitted on cross-examination that he did not complain to Dr. Cooper about having pain or discomfort at that time and that he went to see Dr. Cooper about his heart problems. Dr. Cooper’s medical records indicate no mentioning by Knight to Dr. Cooper about the accident. Dr. Cooper’s report described Knight’s exam an “essentially unremarkable.”

¶ 4. The record reflects that Knight waited six months after the accident before he went to see Dr. Christopher Wiggins, an orthopedic surgeon, in November 1994. Knight explained that the reason he waited six months to see Dr. Wiggins was because he had heart surgery in June of 1994. Given by deposition, Dr. Wiggins’ testimony indicated that Knight complained, at that time of pains in his left elbow. Knight mentioned the May 1994 accident to Dr. Wiggins. Dr. Wiggins testified that Knight suffered from an avulsed distal tendon and that given Knight’s medical condition with heart problems, surgery was probably not an option of treatment. Dr. Wiggins testified that Knight sustained “fifteen percent permanent partial disability to the left upper extremity because of pain and loss of strength.” According to Knight’s direct examination, Dr. Wiggins prescribed medicine to treat his arm pain.

¶ 5. In July of 1995, Knight went to see Dr. Harry Danielson, a neurosurgeon, due to recurring headaches, back and neck pain. Knight had been a patient of Dr. Danielson in 1992 following another auto accident. In 1993, Dr. Danielson performed surgery on Knight to alleviate pain and disk injury resulting from the previous accident. Following a neurological exam performed by Dr. Danielson, an MRI X-ray and a myelogram, Dr. Danielson concluded that Knight suffered from a “herniated disk at the C5-6 level.” After waiting several months to see if Knight’s condition improved, Dr. Danielson suggested surgery in March of 1996. An anterior cervical disckectomy was performed by Dr. Danielson on April 5,1996.

¶ 6. Dr. Danielson testified that his medical opinion was that Knight’s accident on May 3, 1994, with Corey Brooks worsened the pre-existing back condition Knight suffered as a result of the 1992 accident. Dr. Danielson also testified that Knight had a “nine percent general physical impairment rating of the person as a whole for an anterior cervical disk fusion” but was not so disabled that he would need to resign from his job as CEO of his company.

¶ 7. Knight testified that he had post-accident medical bills totaling $23,000. Dr. Danielson stated that his charges for Knight’s surgery and consultation were $7,650. Knight also testified that, because of chronic pain resulting from the auto accident, he could not participate in certain activities that he once enjoyed. Knight stated that due to pain he no longer could stand or ride in a car for long periods of time. However, Knight stated that he was still able to fish, go boat riding and work as owner of his own business.

¶ 8. After Knight presented his case, Brooks chose to rest and not to put on any evidence. The trial court instructed the jury to find for Knight. The jury returned a verdict for Knight but assessed his damages at zero dollars. The judgment on the jury verdict states, ‘We the jury find for the plaintiff, and assess his damages at $0.00.” Knight moved for a new trial on the issue of damages. Knight argued that the jury verdict was inadequate, not supported by the evidence and a result of bias, prejudice or passion on the part of the jury. The trial judge denied Knight’s motion for a new trial and Knight appeals this ruling.

STANDARD OF REVIEW AND LEGAL ANALYSIS

¶ 9. Knight raises two issues on appeal which are intertwined. We will consider the two issues together in order to better resolve the issues before the Court. Knight contends that the trial court erred when it denied his motion for a new trial. Motions for new trial challenge the weight of the evidence. Mitchell v. Glimm, 819 So.2d 548, 551(¶ 6) (Miss.Ct.App.2002). The decision to grant or to deny a motion for new trial is within the trial judge’s discretion. Trustmark Nat’l Bank v. Jeff Anderson Med. Ctr., 792 So.2d 267, 274 (¶ 17) (Miss.Ct.App.2000). The appellate court, when reviewing the trial judge’s decision to deny a motion for new trial, views all evidence in a light most favorable to the nonmoving party. Id. This Court will reverse the trial judge’s denial of a request for a new trial only when the denial amounts to an abuse of discretion. Whitten v. Cox, 799 So.2d 1,13 (¶ 26) (Miss.2000).

¶ 10. Knight asserts two points of error with regard to the jury verdict of zero dollars. First, that the amount is inadequate and second, that the verdict is unsupported by the evidence and evinces bias, prejudice or passion on the part of the jury. Based on these assertions, Knight argues that the trial court should have granted him a new trial on damages. Proper bases for granting a motion for new trial are “when the verdict is against the overwhelming weight of the evidence, or when the jury has been confused by faulty jury instructions, or when the jury has departed from its oath and its verdict is a result from bias, passion, and prejudice.” Gatewood v. Sampson, 812 So.2d 212, 222 (¶ 22) (Miss.2002) (citing Hamilton v. Hammons, 792 So.2d 956, 965 (Miss.2001)). Commonly, the sole proof of bias, prejudice or passion on the part of the jury is “an inference, if any, to be drawn from contrasting the amount of the verdict with the amount of the damages.” Gatewood, 812 So.2d at 222 (citing Green v. Grant, 641 So.2d 1203, 1209 (Miss.1994)).

¶ 11. The trial judge gave the following peremptory instructions to the jury:

Instruction No. I

The Court instructs the jury to return a verdict for the Plaintiff, Benny R. Knight.

Instruction No. 10

Your verdict should be written on a separate sheet of paper, need not be signed by anyone, and should be in the following form: “We the Jury, find for the Plaintiff and assess his damages at

Essentially, the trial court was directing a verdict for Knight while leaving the issue of damages for the jury’s determination. When this Court reviews the action of the jury after the trial court has refused to grant a new trial on the question of damages, the question then becomes whether the verdict was either so excessive or inadequate as to shock the conscience and to indicate bias, passion and prejudice on the part of the jury, or, whether the jury failed to respond to reason. Wal-Mart Stores, Inc. v. Johnson, 807 So.2d 382, 392 (¶ 27) (Miss.2001).

¶ 12. In the case sub judice, there was actually no award of damages since the jury assessed them at zero dollars. This cannot be viewed as an inadequate award of damages, but instead as no award at all. Knight presented several expert witnesses at trial by way of their depositions, each stating that Knight suffered some injury from the accident. Knight testified that his medical bills total $23,000. Dr. Daniel-son testified that his bill for services rendered to Knight was $7,560. Dr. Daniel-son stated that Knight suffered from an aggravation of a pre-existing back condition due to the accident which resulted in surgery. Knight stated that he still continued to experience pain and discomfort at the time of trial, several years after the accident. Upon viewing the evidence presented at trial in the light most favorable to Brooks, it is clear that Knight suffered some injury from this accident. The jury verdict is, therefore, against the overwhelming weight of the evidence and is reversed. We remand this case to the trial court for a new trial solely on the issue of damages.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY IS REVERSED AND THE CASE IS REMANDED FOR A NEW TRIAL ON THE ISSUE OF DAMAGES ONLY. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLEE.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, AND CHANDLER, JJ., CONCUR. McMILLIN, C.J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY SOUTHWICK, P.J., BRIDGES, LEE, IRVING, MYERS, CHANDLER, AND GRIFFIS, J.

McMILLIN, C.J.,

CONCURRING:

¶ 14. I concur. I write separately to express some concern regarding the proper procedure in submitting contested issues to the jury when other relevant issues are either not contested or are determined by the trial court to be established as a matter of law. It has been my observation during my tenure on this Court that this problem arises with some degree of frequency in negligence claims for personal injury such as the one now before the Court and that, depending on the manner in which the jury is instructed, the path is left open for confusion on the part of the jury as to the scope of its authority and for uncertainty at the appellate level in assessing the responsiveness of the jury’s verdict to the court’s instructions.

¶ 15. A tort claim sounding in negligence has four essential elements. They are (a) a duty owed by the defendant to the plaintiff, (b) a breach of that duty, (c) a causal connection between that breach and an injury to the plaintiff, and (d) some loss or damage to the plaintiff arising out of that injury. Couch v. City of D’Iberville, 656 So.2d 146, 150 (Miss.1995). A directed verdict in favor of the plaintiff that does not reserve any element of a negligence claim for jury determination, therefore, contemplates, in the view of the trial court, that the evidence is such that a fair minded-jury, viewing the evidence as a whole, could only conclude that the plaintiff has satisfactorily proven each of the elements of the claim. Ishee v. Peoples Bank, 737 So.2d 1011, 1013(¶ 7) (Miss.Ct.App.1998). In that situation, the sole issue for resolution by the jury — a matter which necessarily involves some measure of fact-finding discretion that cannot be usurped by the trial court — is the measure of the plaintiffs damage. This matter must be distinguished from the immediately preceding consideration of whether the fact that damage in some amount has occurred has been satisfactorily established.

¶ 16. There are situations where causation of the incident leading to the damage claim may be an uncontested matter though the issue of whether the plaintiff suffered any measurable damage as a result of the incident remains in dispute. In that situation, it would be inappropriate to direct a verdict for the plaintiff since proof of a compensable injury is an essential element of a plaintiffs verdict, and the failure to show such an injury by a preponderance of the evidence would properly result in a defendant’s verdict just the same as if the proof failed on the threshold issues of the existence of a duty or a breach of that duty.

¶ 17. If the issue of whether a compen-sable injury has, or has not, been suffered is a matter unresolved at the conclusion of the proof, though all other essential elements of the claim have either been confessed or are established as a matter of law, then appropriate instructions can be drafted that reflect this state of affairs and submit the unresolved issues to the jury for determination. However, that situation does not call for a directed verdict for the plaintiff.

¶ 18. In this case, the trial court directed the jury to return a verdict for the plaintiff. It may be that the court meant to inform the jury simply that the issue of “fault” in causing the accident was not a disputed issue but that the issues of both (a) the fact of injury and (b) the existence of compensable damages arising from the injury remained in dispute. For reasons I have already discussed, I conclude that a directed verdict for the plaintiff does not accomplish that purpose.

¶ 19. It is on that basis that I agree that a verdict of zero damages cannot be construed as being in accord with the trial court’s instruction, given without qualification, to “return a verdict for the Plaintiff.”

¶ 20. One appropriate means of reflecting that the issue of the fact of injury remains unresolved is to include the term “if any” at appropriate places within the body of the instructions. In McCary v. Caperton, the Mississippi Supreme Court considered the following instruction:

The court instructs the jury that if you find for the Plaintiff in assessing her damages you may take into consideration all evidence in reference to lost wages and income Plaintiff has suffered as a result of injuries if any sustained in the accident; and all evidence in reference to pain and suffering if any the Plaintiff has suffered or is reasonably likely to suffer in the future as a result of injuries sustained....

McCary v. Caperton, 601 So.2d 866, 869-70 (Miss.1992). In that case, the supreme court found the inclusion of the phrase “if any” to be reversible error since the court concluded that there was “unrefuted evidence that McCary was injured in the ... accident and that the injury resulted in loss.” Id. at 870. In essence, the supreme court found error in the trial court’s giving the jury the latitude to determine that no damage was suffered. A zero verdict for the plaintiff accomplishes that result and must, therefore, be seen as error when the trial court has concluded that the evidence shows otherwise as a matter of law.

¶ 21. It is my view that the state of the instructions in the case now before us puts it in essentially the same posture as McCary v. Caperton in that the instructions given in this case reflect a determination by the trial court that, not only was causation satisfactorily shown, but also that the fact of injury and resulting loss in some amount was established. Whether the trial court was wrong in reaching that conclusion is a different issue that is not before this Court.

¶ 22. There exists a roadmap in existing case law to differentiate between cases where duty, breach of duty, and a proximately caused injury are undisputed and one where duty and breach of duty are the only issues that are undisputed. It is important for the parties and the trial court to be mindful of this distinction and to carefully frame the instructions given the jury so as to properly instruct as to which issues are being submitted to them for determination and which ones they must accept as having been already resolved.

¶ 23. In this case, I think the court’s instructions resolved all issues up to and including the fact that the plaintiff suffered some measure of compensable injury arising from the accident, and, for that reason, the jury’s verdict of zero damages was not responsive to the instructions it was given. In that situation, the only appropriate remedy is to remand for a new trial on the sole unresolved issue, which is the amount of the damages suffered by the plaintiff.

SOUTHWICK, P.J., BRIDGES, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., JOIN THIS SEPARATE WRITTEN OPINION.