author: KING, P.J.,

text:
    Eric FORSHEE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00217-COA.
    Court of Appeals of Mississippi.
    May 27, 2003.
    Rehearing Denied Aug. 26, 2003.

      Eric Forshee, appellant, pro se.

      Office of the Attorney General, by Charles W. Maris, attorney for appellee.
    Before KING, P.J., MYERS and GRIFFIS, JJ.
   KING, P.J.,

for the Court.

¶ 1, Eric Forshee perfected this appeal from an order denying post-conviction collateral relief entered by the Circuit Court of Monroe County, Mississippi. On October 10, 1994, Forshee pled guilty to two counts of uttering a forgery. He was sentenced to fifteen years on each count, with the sentences to run consecutively.

¶ 2. Forshee, pro se, filed a petition for post-conviction collateral relief on March 27, 2000. His petition was denied by the trial court. On appeal, Forshee raises the following issues:

I. Whether the trial court erred in revoking Forshee’s probation based on hearsay testimony by the State’s witness regarding charges that were later dismissed and by denying his petition for post-conviction collateral relief.
II. Whether the trial court erred in dismissing Forshee’s ineffective assistance of counsel claim.

FACTS

¶ 3. In July 1994, Forshee was indicted for two counts of forgery. On October 10, 1994, Forshee (represented by two attorneys) pled guilty to the charges.

¶ 4. During the guilty plea hearing, the trial judge questioned Forshee extensively to determine whether his pleas were knowingly and voluntarily made. Forshee indicated that he understood the nature of the charges and that he was in fact guilty of the crimes.

¶ 5. The trial judge questioned Forshee to determine if his attorneys had advised him of the charges and the consequences of pleading guilty to the charges. Forshee responded affirmatively. The trial judge also advised Forshee of the maximum and minimum penalties allowable. Forshee acknowledged that he understood that.

¶6. The trial judge asked Forshee whether his attorneys had done anything to make him plead guilty, to which he responded, “no, sir.” The trial judge asked him if he was satisfied with the legal services and advice provided by the attorneys. Forshee indicated that he was satisfied with their services.

¶ 7. After inquiry, the trial judge determined that Forshee “knowingly, understanding^, freely, and voluntarily entered each of these pleas of guilty.” The court accepted his pleas and asked the State if it had a sentencing recommendation. The State indicated that it did not have a recommendation as to sentence, but requested that restitution be required in the amount of $18,327.39, arising from “approximately twenty odd cases that have not been presented to the Monroe County grand jury.”

¶ 8. The trial judge indicated that the State had agreed that the pending cases would be retired to the file. The trial judge then sentenced Forshee to a term of fifteen years on count one and fifteen years on count two, to be served consecutively. The trial judge retained jurisdiction of this case for 180 days, and indicated that, if during that period Forshee stayed out of trouble, the court would cause him to be placed in a restitution center.

¶ 9. On August 17, 1995, Forshee’s sentence was suspended and he was placed on supervised probation for five years. While on probation, Forshee was suspected of possible fraudulent use of a credit card. The State filed a petition seeking to revoke the probation and to impose the suspended sentences previously ordered.

¶ 10. At the revocation hearing on October 29, 1997, the State presented testimony from James Sherman of the Mississippi Department of Corrections who indicated that on July 24, 1997, Forshee was charged by the Columbus Police Department with a crime, using a credit card without the consent of the cardholder, which occurred on September 7,1995.

¶ 11. Officer John Pevey of the Columbus Police Department, stated that upon investigating the possible fraudulent use of a credit card at the Sesser Chevrolet dealership in Columbus, he learned from a sales person at the dealership that:

[TJhere was an individual who had made an interest in purchasing a vehicle which was through a lease agreement there at Sesser Chevrolet and that this person had filed his intent to lease this vehicle and in doing so had filled out several applications using the name of Eric For-shee by including one application where it had the any other co-leasors had the name of Mary Forshee using the Aberdeen, Mississippi address on Egypt road [sic].

¶ 12. Based on the information, For-shee was arrested and charged with fraud. Officer Pevey was not present when For-shee allegedly used the credit card at Ses-ser Chevrolet.

¶ 13. After hearing the testimony presented, the trial judge determined that Forshee had violated the terms and conditions of his probation, and revoked his probationary status.

ISSUES AND ANALYSIS

I.

Whether the trial court erred in revoking Forshee’s probation based on hearsay testimony by the State’s witness regarding charges that were later dismissed and by denying his petition for post-conviction collateral relief.

¶ 14. Forshee asserts that the trial court erred in revoking his probation based solely on the hearsay testimony. He claims that the State failed to present “any physical evidence” in support of the allegations.

¶ 15. At the revocation hearing, Officer Pevey indicated that the salesperson at Sesser Chevrolet positively identified the picture of Forshee and stated that the credit card Forshee used had been reported stolen.

¶ 16. On appeal, a reviewing court should not disturb a lower court’s decision to deny a petition for post-conviction relief unless the court’s factual findings are clearly erroneous. McClinton v. State, 799 So.2d 123(¶4) (Miss.Ct.App.2001). However, where questions of law are raised the applicable standard of review is de novo. Id.

¶ 17. Minimum due process requirements have been imposed for parole revocation hearings. Morrissey v. Brewer, 408 U.S. 471, 485-87, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). “For a defendant to be guaranteed full protection of the law there must be: (a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parol'ee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the fact finders as to the evidence relied on and reasons for revoking [probation or] parole.” McClinton v. State, 799 So.2d 123(¶ 5) (Miss.Ct.App.2001).

¶ 18. Forshee cites to Grayson v. State, 648 So.2d 1129, 1134 (Miss.1994), which deals with probation revocation hearings, but Forshee has not cited authority that hearsay testimony may not be used in revocation hearings. In fact, the Mississippi Rules of Evidence do not apply to proceedings “granting or revoking probation.” Younger v. State, 749 So.2d 219(¶ 9) (Miss.Ct.App.1999). “Therefore, the rule barring hearsay does not apply, and hearsay evidence is properly admitta-ble in such hearings.” Id.

¶ 19. Forshee alleges that the charge which served as the basis for the revocation of probation was dismissed. We cannot ascertain the validity of this remark because that information is not in the record provided by Forshee. However, it is immaterial that the charge was dismissed. Even if the charge were dismissed, that is not controlling when the revocation of probation is at issue.

¶ 20. The level of proof required for the revocation of probation is significantly less than that which is required for a conviction. Our supreme court has stated that a conviction is not necessary to revoke probation. Id. at (¶ 12). Probation may be revoked upon a showing that the defendant “more likely than not” violated' the terms of probation. Id. A conviction requires proof beyond a reasonable doubt. Russell v. State, 220 So.2d 334, 338 (Miss.1969).

¶ 21. Based upon the evidence, the trial judge determined that Forshee “more likely than not” violated the terms of his probation. In so finding, the trial judge stated “the [c]ourt heard testimony that the Petitioner had committed several crimes while he was on supervised probation. The [e]ourt, having reviewed the transcript, finds that there was sufficient cause to find that Petitioner violated the terms and conditions of his probation, and his probation was not unlawfully revoked.”

II.

Whether the trial court erred in dismissing Forshee’s ineffective assistance of counsel claim.

¶ 22. Forshee asserts that the trial court erred in barring his claim of ineffective assistance of counsel. He claims that the trial court never heard his ineffective assistance of counsel claim which was supposed to have been argued in November 1997 by his attorney at the time. He maintains that he was “never called or appeared at the hearing.”

¶23. In the order dated August 24, 2001, denying post-conviction collateral relief, the trial court determined that For-shee’s claim was procedurally barred pursuant to Miss.Code Ann. Section 99-39-5(2) (Rev.2000), which provides:

(2) A motion for relief under this chapter shall be made within three (3) years after the time in which the prisoner’s direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction. Excepted from, this three-year statute of limitations are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.

(emphasis added). Forshee has not shown that his claim is an exception. Forshee argues that the ineffective assistance of counsel claim is a fundamental right which is not barred.

¶ 24. Having determined that Forshee’s claim of ineffective assistance is procedurally barred, we find no error in the trial court’s decision.

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

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


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Michael HENDERSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00806-COA.
    Court of Appeals of Mississippi.
    June 3, 2003.
    Rehearing Denied Aug. 19, 2003.
    Azki Shah, Clarksdale, attorney for appellant.
    Office of Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, P.J., MYERS and GRIFFIS, JJ.
   GRIFFIS, J.,

for the court.

¶ 1. Michael Henderson was convicted in the Coahoma County Circuit Court of burglary of a dwelling and sentenced to seven years in the custody of the Mississippi Department of Corrections with three years suspended. On appeal, Henderson contends that the circuit court erred in denying his motion to quash the indictment and in admitting certain testimony by the arresting officer. Finding no error, we affirm.

¶ 2. On May 23, 2001, Deputy Napoleon Brewer of the Coahoma County Sheriffs Department responded to a call that two men had burglarized a residence and had been traveling in a blue Oldsmobile. The call also informed Deputy Brewer that one of the men was wearing an orange shirt and dark pants and that the car had been abandoned near where he was on patrol. Shortly thereafter, Deputy Brewer located Henderson, who was wearing an orange shirt and dark pants. Deputy Brewer approached Henderson and asked where he was going. Henderson responded that he was on his way to his cousin’s residence, but he could not tell the deputy where his cousin resided. Henderson was then taken into custody and was subsequently indicted for burglary of a dwelling. At trial, the jury returned a verdict of guilty of burglary of a dwelling.

ANALYSIS

I. Whether the trial court committed reversible error in denying the defendant’s motion to quash indictment.

¶ 3. Henderson contends that the trial court committed reversible error in denying his motion to quash the indictment. The indictment provided:

Michael Henderson, late of Coahoma County, Mississippi, on or about May 23, 2001, in the County and State aforesaid, and within the jurisdiction of this Court, individually or while aiding and abetting and/or acting in concert with others, did then and there, unlawfully, willfully, feloniously, and burglariously break and enter the dwelling house ... with the intent to commit the crime of larceny therein....

(emphasis added). Henderson asserts the indictment was defective because it failed to identify or name the individual(s) who allegedly aided or abetted or acted in concert with him in the commission of the burglary.

¶ 4. Rule 7.06 of the Uniform Circuit and County Court Rules requires that “[a]n indictment must contain a plain, concise and definite written statement of the essential facts constituting the offense charged, and it must fully notify the defendant of the nature and cause of the accusation against him.” Stevens v. State, 808 So.2d 908, 918(¶ 30) (Miss.2002). Henderson’s argument is misplaced because the indictment charges Henderson, individually, with the crime of burglary of a dwelling. Henderson was the only person named and the language used restated Miss.Code Ann. § 97-17-23 (Rev.2000) for burglary of a dwelling. “As a general rule, where an indictment tracks the language of a criminal statute it is sufficient to inform the accused of the charge against him.” Stevens, 808 So.2d at 919(¶ 31).

¶ 5. We find that the indictment set forth the essential facts constituting the charge, and Henderson and his counsel were able to ascertain the nature and cause of the accusation. URCCC 7.06. Therefore, we find this assignment of error to be without merit.

II. Whether the trial court committed reversible error in overruling the Appellant’s objection to Officer Brewer’s testimony concerning his questioning of the Appellant prior to his arrest.

¶ 6. Deputy Brewer testified that when he first located Henderson he asked him where he was going. In response, Henderson gave conflicting answers as to why he was in the neighborhood. Henderson stated that he was going to his cousin’s, but could not tell the deputy where his cousin lived. Thereafter, Deputy Brewer placed Henderson in the patrol car. Henderson contends that the trial court erred in overruling his objection to Deputy Brewer’s recounting Henderson’s response to his initial question. Henderson asserts that such testimony was a product of an unlawful arrest and should have been excluded. The trial court had previously excluded Henderson’s confession that was obtained after Henderson had been placed in the patrol car. The trial court found that once Henderson was in custody, Deputy Brewer failed to comply with Miss.Code Ann. § 99-3-7 (Supp.2001), which provides that an officer making an arrest without a warrant must tell the accused the object and cause of the arrest. Therefore, the trial court held that the confession was the product of an illegal arrest.

¶ 7. In overruling the objection at trial, the trial court concluded that Henderson was not under arrest until he was placed in the patrol car. Therefore, the court determined that Deputy Brewer could testify as to Henderson’s response to his initial questions, since such statements were not the result of a custodial interrogation.

¶ 8. “The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only when that discretion has been abused.” Johnston v. State, 567 So.2d 237, 238 (Miss.1990). In Hodge v. State, 801 So.2d 762, 769(¶ 18) (Miss.Ct.App.2001), this Court held:

There are generally three manners which an officer may attempt to prevent crime, detect violations, make identifications, or apprehend criminals: (1) Voluntary conversation: An officer is allowed to have a voluntary communication with an individual regardless of what facts are known to the officer because it involves no force and no detention of the individual interviewed; (2) Investigative stop and temporary detention: When an officer stops and temporarily detains an individual it is not an arrest, when reasonable circumstances are present an officer may stop and detain a person to settle an ambiguous situation without having sufficient knowledge to justify an arrest; and (3) Arrest: An officer may make an arrest only when he/she has probable cause. Singletary v. State, 318 So.2d 873, 876 (Miss.1975).

¶ 9. In this case, the trial court found that Henderson was not under arrest at the time he was initially questioned by Deputy Brewer. Therefore, according to Hodge, Deputy Brewer’s questions were properly characterized as either a “voluntary conversation” or an “investigatory stop and temporary detention,” but not an arrest and a custodial interrogation. Accordingly, we do not find that the trial judge abused his discretion in admitting the testimony of Deputy Brewer about the conversation or questioning prior to the arrest. Thus, we find the testimony to be admissible and this assignment of error to be without merit.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF SEVEN YEARS WITH THREE SUSPENDED IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, FINE OF $2,000 AND $189 IN RESTITUTION TO THE VICTIM IS AFFIRMED. SENTENCE SHALL RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: THOMAS, J.,

text:
    Eric Butch JOHNSTON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00796-COA.
    Court of Appeals of Mississippi.
    June 3, 2003.
    Rehearing Denied Aug. 19, 2003.

      William Mitchell Moran, Dan W. Dug-gan, attorneys for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, P.J., THOMAS, MYERS and GRIFFIS, JJ.
   THOMAS, J.,

for the court.

¶ 1. Eric Butch Johnston was convicted of possession of a controlled substance and sentenced to twelve years in the custody of the Mississippi Department of Corrections. Aggrieved he asserts the following:

I. DID THE OFFICERS SET UP A PROPER ROADBLOCK WHICH PASSES ALL CONSTITUTIONAL REQUIREMENTS?
II. THE COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO SUPPRESS THE EVIDENCE.

Finding no error, we affirm.

FACTS

¶ 2. On the evening of March 15, 2002, Eric Johnston drove his vehicle to where a driver’s license checkpoint was being maintained by the Leake County Sheriffs Department at the intersection of Gunter and Salem Roads. Upon stopping at the checkpoint and relinquishing his license to the deputy to check its validity, the deputy was informed by the dispatcher that Johnston’s license had been suspended. Johnston was then placed under arrest and was searched. The search revealed several syringes and a bag containing methamphetamine. Johnston was then read his Miranda warning and charged with possession of a controlled substance. It was later determined that the methamphetamine weighed 3.32 grams and that the syringe was loaded with .5 millimeters of methamphetamine.

I. DID THE OFFICERS SET UP A PROPER ROADBLOCK WHICH PASSES ALL CONSTITUTIONAL REQUIREMENTS?

¶ 3. Johnston argues that since a very minimal amount of citations were written as a consequence of that particular checkpoint and that since the deputies testified that the department had no written policies covering setting up roadblocks and the execution of such roadblocks then the roadblock was unconstitutional. He fails to assert how his constitutional rights were violated; he just claims they were.

¶4. The Supreme Court found highway law enforcement officer’s rights to stop, question and inspect to be more extensive at fixed checkpoints than for roving patrol stops. United States v. Martinez-Fuerte, 428 U.S. 543, 558, 96 S.Ct. 3074, 49 L.Ed.2d 1116, (1976). “We view checkpoint stops in a different light because the subjective intrusion — the generating of concern or even fright on the part of lawful travelers — is appreciably less in the case of a checkpoint stop.” Id. A balancing requirement originated in Camara v. Municipal Court, 387 U.S. 523, 539, 87 S.Ct. 1727, 18 L.Ed.2d 930, (1967); 4 WAYNE R. LAFAVE, SEARCH AND SEIZURE §§ 10.8(a) (3d ed.1996). There are three requirements under Camara to validate a particular law enforcement practice involving a stop and limited detention: (1) existence of a strong public interest in maximizing success in combating the problem at hand; (2) an inability to achieve adequate result by relying on probable cause determinations; and (3) the “relatively limited invasion of the citizen’s privacy” involved in the procedure in question. Camara, 387 U.S. at 537, 87 S.Ct. 1727. Applying the previously discussed Camara standards, it would seem clear that the required stops in these situations for the purpose of checking for a valid driver’s license are reasonable under the Fourth Amendment. 4 LAFAVE, SEARCH AND SEIZURE §§ 10.8(c); Edwards v. State 795 So.2d 554, 557-58(¶ 12) (Miss.Ct.App.2001). In applying the balancing test, this Court must look at the importance of the public concern served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with Johnston’s liberty. Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357, (1979).

¶ 5. The purpose of the roadblock was to check licenses. It should be noted this Court held in the case of Briggs v. State that the State does arguably have an interest in seeing that drivers of vehicles are properly registered and in making sure vehicles are properly registered and inspected. Briggs v. State, 741 So.2d 986(¶ 8) (Miss.Ct.App.1999). Therefore, there was a public concern served by this roadblock and thus served by the seizure.

¶ 6. Johnston was not singled out nor a victim of any unreasonable activity by the sheriffs deputies. The checkpoint for the purpose of valid license checking was constitutional. This issue has no merit.

II. DID THE COURT COMMIT REVERSIBLE ERROR WHEN IT FAILED TO SUPPRESS THE EVIDENCE?

¶ 7. Johnston contends that the only reason that the deputy patted him down, which lead to the discovery of the methamphetamine, was for the deputy’s safety and that since it was obvious no weapons were on Johnston’s person then the deputy should not have discovered the methamphetamine in Johnston’s pocket. He further asserts that he was never lawfully arrested and therefore any evidence obtained pursuant to an unlawful arrest should have been suppressed. He asserts that the search should have been limited to a search for weapons.

18. In order for an officer to make an arrest, he must first have probable cause. “Probable cause exists where ‘the facts and circumstances within the arresting officer’s knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.’ ” Craig v. State, 739 So.2d 410, 412(¶ 4) (Miss.1999). There is no violation of the Fourth Amendment when a person, placed under lawful arrest, is subjected to a full search of his person. U.S. v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, (1973). “A search incident to a valid arrest is not limited to a Terry type search.” Rankin v. State, 636 So.2d 652, 657 (Miss.1994) (citing Robinson, 414 U.S. at 229, 94 S.Ct. 467). In Ellis v. State, 573 So.2d 724, 726 (Miss.1990), our supreme court held that since the police officer had probable cause to arrest the defendant, the officer was justified in searching for more than weapons, and the narrow limits of a Terry search did not apply.

¶ 9. The search conducted was incident to a lawful arrest as the deputy certainly had probable cause to believe Johnston was driving without a proper license. This issue is without merit.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY OF CONVICTION OF POSSESSION OF METHAMPHETAMINE AND SENTENCE OF TWELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED AGAINST THE APPELLANT.

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


author: LEE, J., CHANDLER, J.,

text:
    James Lee DOSTER, Appellant, v. Iva Ruth DOSTER, Appellee.
    No. 2001-CA-01103-COA.
    Court of Appeals of Mississippi.
    Aug. 19, 2003.

      Jak Smith, Tupelo, attorney for appellant.
    Iva Ruth Doster, Appellee, pro se.
    Before SOUTHWICK, P.J., LEE and GRIFFIS, JJ.
   LEE, J.,

for the court.

PROCEDURAL HISTORY

¶ 1. James and Ruth Doster were married in June 1999, separated in April 2000 and granted a divorce based on irreconcilable differences in May 2001. With the order of divorce the Itawamba County chancellor denied James’s request to nullify the prenuptial agreement concerning the marital home and ordered that the marital home be sold and proceeds distributed as directed. He also directed that insurance monies from personal property which was stolen be divided one-half to each party, and declined to award attorney’s fees to either party. James appeals arguing that the chancellor erred in enforcing certain parts of the prenuptial agreement and that the court erred in failing to find Ruth hable for the loss of certain furniture. We review these issues and find no error; thus, we affirm.

FACTS

¶ 2. James Foster was sixty-seven at the time he married Ruth Carnathan, then fifty-two years old. Both James and Ruth had previously been married and had grown children as well as individual assets. Prior to the marriage James and Ruth signed a prenuptial agreement, which is described further in this opinion. The Fosters’s marriage ended shortly after it began, with James and Ruth both alleging the other mentally and physically harassed each other.

DISCUSSION OF THE ISSUES

I. DID THE COURT ERR IN ENFORCING THE PRENUPTIAL AGREEMENT?

¶ 3. James argues that the court erred in its interpretation and enforcement of the prenuptial agreement in various respects. “This Court’s scope of review in domestic relations matters is limited. We will not disturb the findings of a Chancellor unless the Chancellor was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Wells v. Wells, 800 So.2d 1239(¶4) (Miss.Ct.App.2001).

a. $25,000 equity

¶ 4. James first objects to the chancellor’s enforcement of the specific provision in the prenuptial agreement which provides Ruth would receive the first $25,000 equity in the home. That specific provision read:

The parties hereto acknowledge that they are purchasing a home in Fulton, Mississippi, commonly known and described as 201 Timbers Drive, Fulton, Mississippi. JAMES L. FOSTER is contributing the sum of SIXTY-TWO THOUSAND FIVE HUNDRED DOLLARS ($62,500) as a down payment on this property and it is anticipated that IVA RUTH CARNATHAN will be making the monthly payments on said home out of her income. The parties will be acquiring said residence as tenants in common and not as tenants by the entirety. As part of the consideration of the Agreement, in the event of the divorce, dissolution of marriage, legal separation or death of either party, said home shall be sold and from the net proceeds of said sale, IVA RUTH CAR-NATHAN or her estate, shall first receive the $25,000.00 in equity and the parties or their estates will divide equally the balance of net proceeds of said sale after payment of any indebtedness, closing costs, attorney’s fees in connection with such sale, and the above referenced $25,000.00 to IVA RUTH CAR-NATHAN or her estate.

¶ 5. James claims he only agreed to the provision concerning the $25,000 because prior to the marriage he thought Ruth would lose her former husband’s railroad retirement as a result of her marrying him. Now, James claims that Ruth lied about losing her railroad retirement when, in actuality, she was neither receiving such retirement nor would she lose it were she to divorce James; thus, James claims the section of the agreement concerning the $25,000 should be voided due to Ruth’s material misrepresentation, fraud or a mutual mistake. Ruth rebuts that the chancellor found as a matter of fact that Ruth made no such misrepresentation, resolving the issue of credibility in her favor. She additionally recounts James’s argument that “common sense” mandates there must have been some reason for the provision, namely Ruth’s receiving the railroad retirement; however, Ruth’s explanation is that James’s income was substantially more than her income, as were his assets, and $25,000 would be a mere drop in the bucket for James to relinquish to Ruth in the event of a divorce.

¶ 6. No evidence was produced to show why, at the time the document was drawn up, the $25,000 provision concerning sale of the marital home was included. James had his reason, Ruth had hers, and the chancellor was left to sort out the credibility of each in light of the evidence. Several proceedings were heard before the chancellor, and he was given ample opportunity to garner the parties’ intentions from each’s testimony and the evidence presented. The chancellor did not find James’s argument persuasive, and absent proof of clear error on the part of the chancellor, we decline to reverse.

b. Breach of prenuptial agreement

¶ 7. Concerning the previously quoted section from the prenuptial agreement, James also argues that regardless of the chancellor’s finding concerning the railroad retirement, Ruth failed to abide by the agreement in failing to make payments on the home; thus, the chancellor’s award of $25,000 to Ruth was unjust. In his opinion, the chancellor noted that Ruth lost her job due to downsizing, and Ruth testified that she could no longer afford monthly payments on the marital home, which James began making thereafter.

¶ 8. The chancellor found that Ruth made payments on the home for thirteen months, then lost her job, at which time James made payments the following eleven months. In his order, though, the chancellor ordered Ruth to reimburse James for these months in which James made payments totaling $8,600. James claims the chancellor’s compensatory actions are insufficient to override the fact that in Ruth’s ceasing to make payments, she breached the contract and, thus, the chancellor should have voided the provision. James maintains that the chancellor’s subsequent “altering” of the agreement to reimburse James, which was not provided for in the agreement, was unlawful.

¶ 9. “An antenuptial contract is as enforceable as any other contract. Accordingly, the same rules of interpretation apply.” McCord v. Spradling, 830 So.2d 1188(¶ 45) (Miss.2002) (citation omitted). We look to general contract law:

It is well established that when a person has been injured by a breach of contract, he is entitled to be justly compensated and is to be made whole by the trial court. However, it is never contemplated that the injured party be placed in a better position than he otherwise would have been in if the contract had been performed.

Polk v. Sexton, 613 So.2d 841, 844 (Miss.1993).

¶ 10. James cites no authority in support of his argument that the provision should have been voided due to Ruth’s failure to make payments on the home. Looking back to the language of this provision in the agreement, the wording is not definite to imply whether breach occurs if Ruth fails to make the payments. The pertinent sentence reads, “JAMES L. DOSTER is contributing the sum of SIXTY-TWO THOUSAND FIVE HUNDRED DOLLARS ($62,500.00) as a down payment on this property and it is anticipated that IVA RUTH CARNATHAN will be making the monthly payments on said home out of her income.” In the contract, neither party provided any language as to what constituted a breach and what remedy would be available.

The termination of a contract is an “extreme” remedy that should be “sparsely granted”.... Termination is permitted only for a material breach. A breach is material when there “is a failure to perform a substantial part of the contract or one or more of its essential terms or conditions, or if there is such a breach as substantially defeats its purpose,” or when “the breach of the contract is such that upon a reasonable construction of the contract, it is shown that the parties considered the breach as vital to the existence of the contract....”

UHS-Qualicare, Inc. v. Gulf Coast Cmty. Hosp., Inc., 525 So.2d 746, 756 (Miss.1987) (citations omitted). We find no material breach, and the chancellor’s remedy of restoring to James the monies he paid on the home when Ruth was unable to pay to be sufficiently without error; this point has no merit.

c. Other factors

¶ 11. James finally argues that the chancellor failed to consider other factors in awarding Ruth the $25,000 provided for in the contract. Namely, James argues the chancellor should have considered the factors provided in Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994), including Ruth’s failure to contribute to the equity in the home, Ruth’s alleged attempt to kill Jim during the pendency of the divorce, and Ruth’s alleged attempts to forge her name on the boat title and her perjury in court. The chancellor’s opinion gives no indication that he failed to consider all relevant facts and evidence in reaching his conclusion. Many proceedings were held before him, and through the record excerpts we find he was well-aware of both James’s and Ruth’s situations. We find our discussion in parts “a” and “b” of this issue sufficient to support our finding that this final argument is without merit.

II. DID THE COURT ERR IN FAILING TO FIND RUTH LIABLE FOR THE LOSS OF JAMES’S FURNITURE?

¶ 12. James finally argues that Ruth took $16,000 worth of his furniture without his permission, then hid it, and when the court asked that she return it, she claimed it was stolen. Ruth rebuts that several witnesses testified to corroborate her story, and the chancellor used his discretion to find Ruth more credible than James. James fails to cite authority on this issue, and we decline to address it further.

¶ 13. THE JUDGMENT OF THE ITAWAMBA COUNTY CHANCERY COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

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

CHANDLER, J.,

dissenting:

¶ 14. I respectfully dissent. While Ruth’s health problems and job loss may have influenced the chancery court’s decision, in my opinion the chancery court’s application of the prenuptial agreement was reversible error. I leave unaddressed the question of whether Mississippi law applies to this issue; in the prenuptial agreement the parties expressly selected the law of Missouri to govern “the validity and construction” of the agreement, and the contract law of Missouri may conflict with that of this state.

¶ 15. My review of the record indicates that the chancery court essentially rewrote, rather than enforced, the prenuptial agreement by selectively enforcing its provisions. Assuming the agreement was enforced on its face and in its entirety, Ruth was to have paid $781 per month in mortgage payments for the duration of the loan period. The record demonstrates that she made payments for only thirteen months, and that James made payments • for at least eleven months. The chancery court ordered that James be reimbursed for his payments in the amount of $8,591 after discharge of the mortgage balance and sale fees, but before the $25,000 was paid to Ruth. The chancellor did not reduce Ruth’s $25,000 by the mortgage payments she failed to make but was contractually obligated to pay. Because the order reimbursed James from the net proceeds that should have been divided equally between the parties, the effect of the order was that James contributed half of the monthly payments during the eleven months Ruth failed to so. Thus, the chancellor’s order did not place Ruth in the same position she would have been in had she paid the $8,591 in mortgage payments. Therefore, the court’s order only partially enforced the prenuptial agreement. Under our law, there is no support for the proposition that, when a chancery court construes a contract, the court may enforce some mutual promises, while declining to enforce other mutual promises. “It is not now and never has been the function of this Court to relieve a party to a freely negotiated contract of the burdens of a provision which becomes more onerous than had originally been anticipated.” Estate of Hensley v. Estate of Hensley, 524 So.2d 325, 328 (Miss.1988).

¶ 16. Further, I cannot agree with the majority that the prenuptial contract was so indefinite as to preclude a finding that a material breach occurred when Ruth failed to make the mortgage payments. As a basic premise of contract law, “it is a condition of each party’s remaining duties to render performances to be exchanged under and exchange of promises that there be no uncured material failure by the other party to render any such performance due at an earlier time.” RESTATEMENT (SECOND) OF CONTRACTS § 237 (1981). A material breach is defined as “a failure to perform a substantial part of the contract or one or more of its essential terms or conditions, or if there is such a breach as substantially defeats its purpose.” Gulf South Capital Corp. v. Brown, 183 So.2d 802, 805 (Miss.1966). The terms of the agreement plainly show that Ruth’s failure to perform substantially defeated the purpose of the agreement, which in large part was a financial arrangement for the purchase of the marital home. Under the agreement as enforced by the chancellor, Ruth derived the benefit of the $25,000, but James did not receive the benefit of Ruth’s payment of half of eleven months’ worth of mortgage payments. Whatever the parties’ purpose in entering into the agreement may have been, logically that purpose could not have been that Ruth would benefit to a greater degree by breaching the agreement than she would have benefitted under the letter of the agreement.

¶ 17. I would reverse and remand for the chancery court to divide the marital property without application of the prenuptial agreement, and offsetting any proceeds due Ruth with $16,000 to properly compensate James for the furniture which was taken from him.

BRIDGES, J., JOINS THIS SEPARATE WRITTEN OPINION.


author: IRVING, J.,

text:
    MISSISSIPPI EMPLOYMENT SECURITY COMMISSION, Appellant, v. Robert E. BARNES, Appellee.
    No. 2002-CC-01067-COA.
    Court of Appeals of Mississippi.
    Aug. 19, 2003.
    Albert B. White, Madison, Attorney for appellant.
    Robert E. Barnes, Appellee, pro se.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   IRVING, J.,

for the court.

¶ 1. This appeal arises from a decision of the Circuit Court of Pearl River County reversing the decision of the Board of Review of the Mississippi Employment Security Commission (MESC) denying unemployment benefits. Feeling aggrieved, the Board of Review appeals and asserts four issues which we quote verbatim:

1. Whether the Circuit Court of Pearl River County erred by reversing the Board of Review’s decision?
2. Whether the Circuit Court of Pearl River County erred by finding that the Employer, Valspar Refinish, Inc., failed to prove by substantial evidence that the Claimant, Robert E. Barnes, committed disqualifying misconduct pursuant to M.C.A. Section 71-5-513(A)(l)(b) (Rev.1995) by violating the Employer’s safety’s rules?
3. Whether the Pearl River County Circuit Court abused its discretion by substituting its opinion for that of the Board of Review, when there is substantial evidence supporting the Board of Review’s decision, such that the decision of the Pearl River County Circuit Court should be reversed?
4. Whether the Circuit Court of Pearl River County committed reversible error by misinterpreting and misapplying the definition of misconduct adopted by this Honorable Court in Wheeler v. Arriola, 408 So.2d 1381 (Miss.1982)?

¶2. Finding error, this Court reverses the judgment of the circuit court and reinstates the judgment of the MESC.

FACTS

¶ 3. Robert E. Barnes was employed by Valspar Refinish, Inc., as a pot washer for over nine years. Valspar manufactures automotive paints. Barnes’s position as a pot washer required that he clean 300-500 gallon pots in which paint was mixed. He was discharged on November 26, 2000, for violating Valspar’s safety rules. He had been previously reprimanded on four separate occasions within a seven month span before the fifth safety violation resulting in his final termination.

¶ 4. Valspar’s guidelines require that when a pot, in the washing area, is raised in the air with a forklift, it must be secured to the forklift with a chain. Three of Barnes’s four safety violations were for failing to follow this guideline. Barnes was also suspended twice without pay. One suspension was for failure to follow the previously-mentioned chain/pot guideline. The other suspension grew out of an argument between Barnes and a co-worker regarding the proper disposal of a solvent. The solvent was poured on top of Barnes by his co-worker when Barnes stepped in front of the co-worker to prevent the coworker from pouring the solvent in the wrong area. Barnes was suspended for placing himself in harm’s way.

¶ 5. After his fourth safety violation, Barnes was informed that any further violations would result in termination. The fifth and final incident, which led to Barnes’s termination, emanated from Barnes’s smoking outside Valspar’s designated smoking areas. Both Barnes and Valspar contest the facts surrounding this smoking incident. It is not disputed that Barnes was smoking while on a forklift outside a designated smoking area. However, there is a dispute as to whether barrels of hazardous waste were attached to the forklift at the time the smoking occurred. According to Barnes, he entered an area where hazardous waste was stored and, after depositing the barrels of hazardous waste in a pit, departed the area but his forklift became stuck in a bog about 100 feet from the pit. Barnes further asserts that, while he was waiting for assistance to arrive, he lit a cigarette and began smoking. Conversely, Barnes’s immediate supervisor swore that Barnes was sitting on the forklift with four barrels of hazardous waste when he found Barnes smoking. Barnes admitted, when confronted by his supervisor, that he should not have been smoking in the area where he was and put the cigarette out.

¶ 6. After Barnes’s termination, he filed a claim for unemployment benefits. The claims examiner interviewed Barnes but was unable, after repeated attempts, to interview a representative of Valspar. Consequently, Barnes was approved for benefits. Valspar appealed, and the appeals referee issued the following findings of fact and opinion:

Claimant was employed at Valspar Refinish, Inc., Picayune, Mississippi, for nine years and eight months in the final capacity of a pop [sic] washer ending on November 26, 2000, when he was discharged for a safety violation. The employer has an established written policy outlining safety issues. One of those issues involve smoking. An employee is allowed to smoke at work but only in designated smoking areas. All employees are made aware of this policy upon hire. On November 26, 2000, the claimant was found with a lit cigarette in his hand a few feet away from hazardous material. This infraction is one that causes a potential hazard not only to the employee but also the company itself. A lit cigarette in the presence of hazardous material could cause a fire hazard. Pri- or to this incident, there were three previous written warnings whereby the claimant violated safety issues other than the cigarette issue.
* * * *
The facts in this case show that the claimant was discharged for a safety violation. An employer who handles hazardous materials has a right to expect that its employees abide by . a no smoking rule or to abide by smoking in designated area rule. The evidence shows that the claimant was made aware of the policies and chose not to abide by them. Such an action does arise to the level of misconduct as that term is used by the Mississippi Employment Security Law and would warrant a disqualification from the receipt of benefits. Consequently, the decision rendered by the claims examiner is not in order.

¶ 7. Barnes appealed to the Board of Review of the MESC, and the Board of Review affirmed the referee’s decision. Barnes then appealed to the Circuit Court of Pearl River Country which reversed the decision of the Board of Review. Other pertinent facts will be related during the discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 8. An appellate court’s review of a decision of the Board of Review of the MESC is limited. Booth v. Miss. Employment Sec. Comm’n, 588 So.2d 422, 424 (Miss.1991). "When reviewing a decision of the MESC, this Court must affirm when the decision is supported by substantial evidence.” Reeves v. Miss. Employment Sec. Comm’n, 806 So.2d 1178, 1179(¶5) (Miss.Ct.App.2002).

¶ 9. It is well established that this Court will give great deference to an administrative agency’s findings and decisions. Allen v. Miss. Employment Sec. Comm’n, 639 So.2d 904, 906 (Miss.1994). “We will not reweigh the facts in a given case or attempt to substitute our judgment for the agency’s judgment.” Id. “We will overturn an agency’s decision only where the agency’s order: 1) is not supported by substantial evidence; 2) is arbitrary or capricious; 3) is beyond the scope or power granted to the agency; or 4) violates a person’s constitutional rights.” Id. “In any judicial proceedings under this section, the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.” Miss.Code Ann. § 71-5-531 (Rev.2000).

¶ 10. The MESC asserts four arguments but they may be crystalized into one argument which may be stated as follows: whether there is substantial evidence to support the findings of the Board of Review of the MESC that Barnes violated Valspar’s guidelines, and if so, whether, Barnes’s actions, as a matter of law, constitute misconduct within the meaning of the applicable law.

¶ 11. In Wheeler v. Arriola, 408 So.2d 1381 (Miss.1982), our supreme court stated that “conduct may be harmful to [an] employer’s interests and justify the employee’s discharge; nevertheless, it evokes the disqualification for unemployment insurance benefits only if it is wilful, wanton, or equally culpable.” Id. at 1383 (quoting Jacobs v. California Unemployment Ins. Appeals Bd., 25 Cal.App.3d 1035, 102 Cal.Rptr. 364 (1972)).

¶ 12. Section 71-5-513 A(l)(b) of the Mississippi Code of 1972, provides that “an individual shall be disqualified for [unemployment] benefits ... for misconduct connected with his work if so found by the commission.” Miss.Code Ann. § 71-5-513 A(l)(b) (Rev.2000).

¶ 13. The Mississippi Supreme Court has defined misconduct as:

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

Wheeler, 408 So.2d at 1383. “The employer bears the burden of showing misconduct by clear and convincing evidence.” Trading Post, Inc. v. Nunnery, 731 So.2d 1198, 1202(¶ 15) (Miss.1999).

¶ 14. The circuit court refused to accept the findings of fact of the Board of Review. The circuit court remarked that the findings of the Board of Review were based on the facts as presented by Valspar and that the Board of Review did not give any weight to Barnes’s testimony at the hearing. The circuit court pointed out that if Valspar’s burden had been by a preponderance of the evidence then it could have affirmed the findings of the Board of Review. Instead, the circuit court found that “Valspar did not prove by substantial, clear and convincing evidence that Barnes was doing anything more than smoking in a field one hundred feet from any hazardous material. The circuit court concluded that this was an isolated incident, and the conduct did not rise to the level of misconduct as defined in Wheeler.

¶ 15. The MESC argues that the circuit court erred by focusing on whether Barnes’s smoking in the hazard waste storage area actually created a fire hazard, rather than the significance of the policy and violation thereof. Also, the MESC maintains that the circuit court’s reasoning that the incident leading to Barnes’s termination was an isolated incident of unsatisfactory conduct was erroneous. Moreover, the MESC insists that the circuit court was confused on the definition of misconduct as defined in Wheeler. The pertinent part of Wheeler which applies to this case, as the MESC points out, is its explanation that willful and wanton violations of the employer’s standard of behavior constitute misconduct. Lastly, the MESC contends that there is substantial proof that Barnes committed misconduct by violating Vals-par’s no smoking policy. The MESC asserts that the proof establishes much more than carelessness in Barnes’s job performance.

¶ 16. We agree with the MESC that Barnes’s actions do indeed constitute misconduct within the meaning of the law. This is not a case of an isolated act of negligence. As to the smoking incident, the evidence was disputed with Barnes’s word against that of his employer, Valspar. The MESC, which is charged with the fact-finding responsibility, found that the forklift was not 100 feet away from the hazardous waste but that the hazardous waste was still in fact on the forklift when Barnes lit the cigarette. We cannot say that the MESC lacked substantial evidence to support its factual finding in this regard.

¶ 17. We also agree that this is not an isolated-incident case. The smoking incident was not Barnes’s first safety violation, and this violation, along with Barnes’s previous safety violations, clearly evinces misconduct of an intentional or substantial disregard of the employer’s interest or of Barnes’s duties and obligations to his employer. Within the seven months before his termination, Barnes had had four separate safety violations, two of which resulted in suspensions. On three separate occasions, Barnes neglected to place a chain around a pot while it was elevated on a forklift. Although ordinary negligence in isolated incidents is not sufficient misconduct to warrant a denial of unemployment benefits, repeated acts of negligence do rise to such level because they evince a substantial disregard of the interests of the employer and the employee’s duties to his employer. We are satisfied that, on the facts of this case, Barnes’s actions soared to such level.

¶ 18. This Court finds that the decision of the Board of Review of the MESC is supported by substantial evidence and that Barnes’s actions constituted misconduct as a matter of law. Therefore, the order of the circuit court reversing the decision of the Board of Review of the MESC is reversed, and the decision of the Board of Review of the MESC is reinstated.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY IS REVERSED, AND THE DECISION OF THE MISSISSIPPI EMPLOYMENT SECURITY COMMISSION IS REINSTATED.

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

      . The record shows the actual date that Barnes was found on the forklift with the cigarette was November 22, 2000.

      . The referee found that there were three previously written warnings, but closer review of the record shows that there were four prior safety violations which occurred on April 4, 2000, June 1, 2000, July 19, 2000, and October 6, 2000.


author: SOUTHWICK, P.J.,

text:
    Jerry FRANKLIN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01841-COA.
    Court of Appeals of Mississippi.
    Aug. 19, 2003.
    W.S. Stuckey, for appellant.
    Office of the Attorney General by: Jeffrey A. Klingfuss, for appellee.
    Before SOUTHWICK, P.J., THOMAS and IRVING, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Jerry Franklin was convicted after a jury trial of burglary of a commercial building. Franklin appeals and challenges the weight of the evidence. We find that Franklin did not timely appeal. Thus, we dismiss. Any relief must come from the post-conviction relief procedures.

FACTS

¶ 2. Franklin was indicted as an habitual offender on the charge of burglary of a commercial building. Although he had appointed counsel, Franklin elected to proceed at trial pro se with appointed counsel acting only as legal advisor. Ten days after conviction, Franklin wrote the circuit clerk requesting a copy of his trial transcript. Franklin stated that he had appealed his case. However, on that date, post-trial motions had not yet been ruled upon by the court. Those motions were denied by written order on April 6, 2000.

¶ 3. Two weeks later, on April 21, 2000, the circuit clerk wrote Franklin that no notice of appeal had yet been filed in his case and outlined the procedure he was to follow in order to perfect appeal and to request a free copy of the trial transcript. Two months later, Franklin again sought a free copy of the transcript and stated it was in preparation for filing an appeal.

¶ 4. Nothing else appears in the record until November 2001, when Franklin filed a notice of appeal, a motion to proceed in forma pauperis, a motion for the record and transcript and a motion for a hearing. He also wrote a letter to the Supreme Court clerk asking about the status of his appeal that he said had been filed on April 10, 2000. He was notified that no notice of appeal had been filed. The Humphreys County circuit clerk also wrote him again, reminding Franklin of the letter of April 21, 2000, notifying him that no appeal had been filed.

¶ 5. In December 2001, the circuit court granted the motion to proceed in forma pauperis. Counsel was appointed to prepare the appeal brief on Franklin’s behalf but the motion for a free record and transcript was denied.

DISCUSSION

¶ 6. The subject of this appeal is the March 2000 conviction. Under court rule, a party has thirty days in which to file a notice of appeal with the supreme court. M.R.A.P. 4(e). The thirty-day calendar begins as of the date post-trial motions are denied, or the date of imposition of sentence, whichever occurs later. Id. In this case, Franklin’s post-trial motions were denied and sentence imposed on the same date, April 6, 2000. Under the rule, Franklin had until May 6, 2000, to file his notice of appeal. The record contains no such notice, although Franklin maintains he filed notice of appeal on April 10, 2000. The record has a letter from the circuit clerk to Franklin dated April 21, 2000, notifying him that no notice had been received. Thus, Franklin was aware within the initial thirty day period that no appeal was pending in his case after he claims to have filed proper notice.

¶ 7. Franklin failed to file any notice until November 20, 2001, eighteen months following the denial of his post-trial motions. Franklin did not seek an extension for good cause although he was notified of the deficiency, nor did he seek to reopen the time for appeal within 180 days of April 6, 2000, options which were available to him under the Rules of Appellate Procedure. Court rules place the outside boundary for filing an appeal at 180 days. Harris v. State, 826 So.2d 765, 767 (Miss.Ct.App.2002). After that, neither the trial court nor this court has jurisdiction to review the defendant’s claims. Id. We are required to dismiss this appeal as untimely. M.R.A.P. 2(a)(1).

¶ 8. Franklin still has available the remedies available under post-conviction relief procedures. Miss.Code Ann. § 99-89-1 to -119 (Rev.2000).

¶ 9. THE APPEAL OF THE JUDGMENT OF THE CIRCUIT COURT OF HUMPHREYS COUNTY IS DISMISSED. COSTS OF THIS APPEAL ARE ASSESSED TO HUMPHREYS COUNTY.

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


author: MADDOX, Retired Justice.

text:
    MT. CARMEL ESTATES, INC., et al. v. REGIONS BANK.
    1011357.
    Supreme Court of Alabama.
    Dec. 13, 2002.
    Stephen V. Hammond of Chenault, Hammond & Hall, P.C., Decatur, for appellants.
    Robert P. Reynolds of Reynolds, Reynolds & Duncan, L.L.C., Tuscaloosa, for appellee.
   MADDOX, Retired Justice.

The sole legal question presented in this case is whether a lending institution that foreclosed on a mortgage and then was the only bidder at the foreclosure sale breached its duty of fairness and good faith to the borrowers, when its bid at the foreclosure sale was an amount less than the amount due under the terms of the note secured by the mortgage and was so inadequate, the borrower and the guarantors contend, as to shock the conscience.

Facts

The basic facts are not disputed. Regions Bank foreclosed on a mortgage given as security for a promissory note executed on May 12, 1999, in the amount of $2,000,000 by Mt. Carmel Estates, Inc. (“Mt. Carmel”), and guaranteed by Charles M. Sisco, David Wall, Mychiallyn Wall, and Myron Wilson (hereinafter referred to collectively as “the guarantors”).

At the foreclosure sale, Regions Bank, the only bidder, bid $1,242,000, an amount less than the unpaid balance on the note, creating a deficiency. Regions Bank sued Mt. Carmel and the guarantors to collect the deficiency and demanded a judgment against the defendants, jointly and severally, for the sum of $375,122.16, attorney fees in the amount of $30,000, and interest “at the Index rate plus .50% until paid [in] full and costs.” After the defendants answered, Regions Bank filed a motion for a summary judgment. Mt. Carmel and the guarantors opposed the motion, contending that there was a genuine issue of material fact presented in that the fair market value of the foreclosed property so greatly exceeded the amount of Regions Bank’s bid at the foreclosure sale as to shock the conscience. The trial court entered a summary judgment in favor of Regions Bank, and against Mt. Carmel and the guarantors, with the exception of Myron Wilson, who had entered into a pro tanto release before the judgment was entered. We affirm.

As security for the $2,000,000 promissory note, Mt. Carmel mortgaged two parcels of real property: one parcel had been subdivided into 61 lots; the other parcel consisted of 18.23 acres of undeveloped land. After executing the note, Mt. Car-mel sold 13 lots from the first parcel and reduced the amount of the note, including principal, interest, and late fees, to $1,611,686. Mt. Carmel then defaulted. On April 28, 2000, Mt. Carmel and the guarantors entered into a contract with Enfinger Development to sell the 48 remaining lots of the first parcel and the second parcel of land to Enfinger for $1,205,985; however, this sale was not consummated. Regions Bank foreclosed on the mortgage, and on July 10, 2000, held a foreclosure sale. Regions Bank offered for separate bids each lot in the first parcel and the second parcel, and then offered for bid all of the real property as a whole. Regions Bank, the only bidder at the sale, offered the highest bids on each individual lot and the second parcel and offered the highest bid on the property as a whole. The sum of the separate bids was slightly less than the bid for the property as a whole, which was the sum of $ 1,242,000.

On July 14, 2000, Regions Bank sued Mt. Carmel and the guarantors for the alleged deficiency of $375,122.16, plus interest and attorneys fees and costs. Wilson, one of the guarantors, answered on August 15, 2000. The remaining defendants answered and asserted as an affirmative defense that Regions Bank’s claim was barred because, the defendants alleged, Regions Bank had breached its duty of good faith and fairness in conducting the foreclosure. On February 8, 2001, Regions Bank filed its motion for a summary judgment. On March 6, 2001, Sisco filed his response in opposition to the motion for a summary judgment. On March 8, 2001, Regions Bank filed a motion seeking the dismissal of Wilson, with whom it had entered into a pro tanto release. On March 19, 2001, Regions Bank filed its amended motion for a summary judgment, stating that Wilson had been dismissed in exchange for Wilson’s payment to Regions Bank of $130,000. Regions Bank stated that, after application of Wilson’s payment to interest, attorneys fees, and principal, there remained a deficiency of $278,640.18. In a supplemental response to Regions Bank’s motion for a summary judgment, Mt. Carmel and the remaining guarantors (hereinafter referred to collectively as “the defendants”) stated:

“There are disputed issues of material fact in this litigation involving the amount of the deficiency and the fair market value of the land as of the date of foreclosure. Defendants maintain there is no deficiency other than the one artificially created by [Regions Bank] when it intentionally underbid the property at the foreclosure sale on July 10, 2000. [Regions Bank] breached its duty of good faith and violated its fiduciary duty to the defendants to obtain the highest and best price for the subject property at the foreclosure sale.”

On May 22, 2001, the defendants filed a counterclaim, followed on May 23, 2001, by an amended counterclaim, in which they alleged that the price Regions Bank paid for the land- — $1,242,000—was far below the reasonable fair market value of the land and violated the duty of good faith and fairness, which the defendants alleged Regions Bank owed them. The defendants then demanded compensatory and punitive damages and further asked that the foreclosure sale be set aside.

On November 5, 2001, the trial court entered a summary judgment in favor of Regions Bank in the sum of $311,013.20. In addition, the trial court rendered a judgment in favor of Regions Bank as to the defendants’ counterclaim. On appeal, the defendants raise three issues:

“1. Did Regions [Bank] breach its duty of fairness and good faith owed [the defendants] by not bidding in the amount of the debt at the foreclosure sale, thus creating a false or sham deficiency?
“2. Did the trial court err in granting a summary judgment to Regions [Bank] before the correct amount of the deficiency was known?
“3. Did the trial court err in granting Regions [Bank] a judgment on [the defendants’] counterclaim?”

(Defendants’ brief, p. 7.)

Standard of Review

This Court’s standard for reviewing a summary judgment has been stated many times, most recently in Potter v. First Real Estate Co., 844 So.2d 540 (Ala.2002), in which this Court stated:

“We review a summary judgment de novo. American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786 (Ala.2002).
“ We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.’
“Nationwide Prop. & Cas. Ins. Co. [v. DPF Architects, P.C.], 792 So.2d [369] at 372 [(Ala.2001)], quoted in American Liberty Ins. Co., 825 So.2d at 790.”

844 So.2d at 545.

I.

The defendants state that Regions Bank’s alleged lack of good faith and fairness constitutes a defense to Regions Bank’s claim, and they also say that Regions Bank’s lack of good faith and fairness supports their counterclaim, in which they demanded compensatory and punitive damages.

In their counterclaim, the defendants stated:

“[Regions Bank], as the mortgagee in the mortgage foreclosure proceeding, owed the Defendants a duty of good faith and fairness in the mortgage foreclosure proceeding and was a trustee with respect to the debtors. [Regions Bank’s] claims are barred because [Regions Bank] breached its duty of good faith and fairness owed to the Defendants by intentionally underbidding the value of the property at the foreclosure sale, thus creating a false or sham deficiency.
“Wherefore the Defendants ... demand judgment against [Regions Bank] ... for general compensatory damages, consequential damages and punitive damages in an mount to sufficiently compensate the Defendants ... and to deter [Regions Bank] ... and others from such wrongful conduct in the future and that the foreclosure sale which was held on July 10, 2000, be set aside and that the Defendants ... be granted such other remedies or relief which a jury and/or the Court may deem appropriate.”

To support their contention that the trial court erred in deciding their counterclaim adversely to them, the defendants argue:

“[Regions Bank], as trustee for the debtors, owed a duty to obtain the highest and best price for the property at the foreclosure sale in order to reduce or eliminate the debt. In view of the market value of the property securing the debt, [Regions Bank] could have easily bid in the amount of the debt and eliminated any deficiency. Instead, [Regions Bank] created an artificial deficiency by intentionally bidding in an amount for the property that was far below its fair market value. [Regions Bank] breached its duty of fairness and good faith with the debtors by not bidding in the amount of the debt at the foreclosure sale.”

(Defendants’ brief, p. 17.) In support of their position that Regions Bank owed them a duty of fairness and good faith, the defendants cite Wood River Development, Inc. v. Armbrester, 547 So.2d 844 (Ala.1989). In Wood River Development this Court stated:

“When a mortgagee forecloses a mortgage pursuant to a power, the mortgagee becomes a trustee of the debtor/mortgagor, and is bound to act in good faith and adopt all reasonable modes of proceeding in order to render the sale most beneficial to the mortgagor. First National Bank of Opp [v. Wise, 235 Ala. 124, 177 So. 636 (1937) ]. This duty is imposed upon the mortgagee foreclosing under a power of sale, because the mortgagee is selling the property, and his interest is diametrically opposed to the interest of the mortgagor, especially if he is the purchaser of the property at the foreclosure sale. In such a case, the mortgagee is in a better position to hinder the sale and render it self-serving. The reasons for imposing such a duty are not present at a judicial foreclosure sale, because there the court, not the mortgagee, is selling the property.”

547 So.2d at 847. The defendants further argue that to fulfill its duty to be fair and to act in good faith, and in view of the fair market value of the land, Regions Bank should have bid the amount of the remaining debt, and had Regions Bank done so, there would not have been a deficiency.

Counsel for the defendants candidly admits that he was unable to find an Alabama case to support such a position, but cites a Florida case, Barnard v. First National Bank of Okaloosa County, 482 So.2d 534 (Fla.Dist.Ct.App.1986), and urges this Court to “follow the logic of the Florida appellate court and reverse the learned trial judge, remanding the case for trial.” (Defendants’ brief, p. 18.)

In Barnard, the Florida District Court of Appeal stated:

“We have held that the court is authorized to deny a deficiency if the fair market value of the property exceeds the amount of the debt at the time of the foreclosure sale. Hamilton Investment Trust v. Escambia Developers, Inc., 352 So.2d 883 (Fla. 1st DCA 1977). We have also held that the amount bid at the foreclosure sale is not conclusive on the issue of the mortgaged property’s value. Trustees of Central States Southeast and Southwest Areas, Pension Fund v. Indico Corporation, 401 So.2d 904 (Fla. 1st DCA 1981); Kurkjian v. Fish Carburetor Corporation, 145 So.2d 523 (Fla. 1st DCA 1962). The trial court has the duty and discretion to inquire into the fair market value of the property, the adequacy or inadequacy of the sale price, and the relationship, if any, between the foreclosing mortgagee and the purchaser at the foreclosure sale. Indico Corporation, supra; R.K. Cooper Construction Company v. Fulton, 216 So.2d 11 (Fla.1968).
“In light of .the facts and the evidence in this case, the trial court abused its discretion in granting a deficiency judgment. The undisputed expert testimony showed the fair market value of the seven lots at the time of the sale to be substantially in excess of the debt owed to appellee. Further, the purchaser and the mortgagee were one and the same and the mortgagee was the only bidder at the foreclosure sale. Last, fair market value has been defined as ‘the sum arrived at by fair negotiation between an owner willing to sell and a purchaser willing to buy, neither being under pressure to do so.’ Flagship Bank of Orlando v. Bryan, 384 So.2d 1323 (Fla. 5th DCA 1980). A witness for the appellee admitted at the deficiency hearing that the bank was under pressure to sell the lots and that its bid was lowered because the bank would not be able to sell the lots for what they were worth. The bid price was therefore more an indication of a ‘quick sale’ value than of the property’s true fair market value.”

482 So.2d at 535-36. In their reply brief to this Court, the defendants “admit that the able attorney for Regions [Bank] ‘duly and properly’ conducted the foreclosure sale on that date,” and state that they “are not contesting the mechanics of the foreclosure sale itself,” but “are alleging that the amount bid by Regions [Bank] on that date was so far below the fair market value of the property that it should shock the conscience of the Court.” (Defendants’ reply brief, p. 4.) The defendants also state:

“We are not contesting the procedure that was followed in conducting the foreclosure sale. We are contesting the substance behind the procedure, the fact that Regions [Bank] knew the property would bring much more than it bid at foreclosure, knew that it had personal guarantees from which to collect any deficiency, knew it had a willing buyer in Enfinger and knew that if it sold the lots individually it would realize a profit by collecting much more money than it bid at foreclosure as well as a deficiency judgment. In view of these known facts, [Regions Bank] intentionally created a deficiency judgment by not bidding the amount of the debt at the foreclosure sale. By all the evidence presented, the affidavits concerning the value of the property and the appraisals, [Regions Bank] ran no risk to itself by bidding in the amount of the debt. It would be made whole. The [defendants], on the other hand, have been saddled with a huge deficiency judgment, a needless deficiency judgment.”

(Defendants’ reply brief, p. 6.) Regions Bank counters that “the purchase price at a properly conducted foreclosure sale is deemed conclusive of the fair and reasonable price at the sale.” (Regions Bank’s brief, p. 13.) In support of its argument, Regions Bank cites BFP v. Resolution Trust Corp., 511 U.S. 531, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994), Wood River Development, Inc. v. Armbrester, 547 So.2d 844 (Ala.1989), and Breen v. Baldwin County Federal Savings Bank, 567 So.2d 1329 (Ala.1990).

In BFP, the United States Supreme Court interpreted the meaning of the phrase “reasonably equivalent value” found in 11 U.S.C. § 548(a)(2)(A), in the context of a foreclosure sale. That section allows the trustee in bankruptcy to avoid a fraudulent transfer where a debtor had an interest in property that was transferred within one year of the filing of the bankruptcy petition, where the debtor was insolvent at the time of the transfer or became insolvent as a result of the transfer and where the debtor received less than a “reasonably equivalent value” in exchange for the transfer. The Court stated:

“[Mjarket value, as it is commonly understood, has no applicability in the forced-sale context; indeed, it is the very antithesis of forced-sale value. ‘The market value of ... a piece of property is the price which it might be expected to bring if offered for sale in a fair market; not the price which might be obtained on a sale at public auction or a sale forced by the necessities of the owner, but such a price as would be fixed by negotiation and mutual agreement, after ample time to find a purchaser, as between a vendor who is willing (but not compelled) to sell and a purchaser who desires to buy but is not compelled to take the particular ... piece of property.’ Black’s Law Dictionary 971 (6th ed.1990). In short, ‘fair market value’ presumes market conditions that, by definition, simply do not obtain in the context of a forced sale.
“Neither petitioner, petitioner’s amici, nor any federal court adopting the Durrett [v. Washington National Insurance Co., 621 F.2d 201 (1980),] or the [In re] Bundles [, 856 F.2d 815 (1988),] analysis [] has come to grips with this glaring discrepancy between the factors relevant to an appraisal of a property’s market value, on the one hand, and the strictures of the foreclosure process on the other. Market value cannot be the criterion of equivalence in the foreclosure-sale context. The language of § 548(a)(2)(A) (‘received less than a reasonably equivalent value in exchange’) requires judicial inquiry into whether the foreclosed property was sold for a price that approximated its worth at the time of sale. An appraiser’s reconstruction of ‘fair market value’ could show what similar property would be worth if it did not have to be sold within the time and manner strictures of state-prescribed foreclosure. But property that must be sold within those strictures is simply worth less. No one would pay as much to own such property as he would pay to own real estate that could be sold at leisure and pursuant to normal marketing techniques. And it is no more realistic to ignore that characteristic of the property (the fact that state foreclosure law permits the mortgagee to sell it at forced sale) than it is to ignore other price-affecting characteristics (such as the fact that state zoning law permits the owner of the neighboring lot to open a gas station). Absent a clear statutory requirement to the contrary, we must assume the validity of this state-law regulatory background and take due account of its effect.”

511 U.S. at 537-39, 114 S.Ct. 1757 (citations and footnotes omitted).

Regions Bank argues that Wood River Development held that “in a foreclosure sale where no evidence of fraud, collusion, or other irregularity exists, mere inadequacy of price would not void the sale.” (Regions Bank’s brief, p. 14.) We note, however, that Wood River Development involved a judicial foreclosure sale, conducted by the court register, and that the sale here was conducted by the mortgagee, under the powers granted in the mortgage. While similar, Wood River Development is not nearly as helpful as Breen, the facts of which are nearly identical to the facts in this case. In Breen, this Court stated:

“Breen argues that his affidavits were sufficient to create a genuine issue of fact as to the commercial reasonableness of the foreclosure sale. As previously noted, the Bank had the burden of showing that it was entitled to recover from Breen the amount that it had alleged was due. The record shows that the Bank made a prima facie showing that it was entitled to a judgment as a matter of law; therefore, the burden shifted to Breen to present evidence tending to show that a triable issue of fact existed. Breen submitted two affidavits in which he stated that, in his opinion, the Bank had paid a commercially unreasonable price for the property that was the subject of the foreclosure sale.
“After carefully reviewing Breen’s affidavits, we conclude that they were sufficient to prove only that at one time some of the lots in question had had a fair market value of approximately $25,000; that, thereafter, the fair market value of the lots began to drop as the result of a slump in the real estate market; and that the Bank purchased the lots at the foreclosure sale for less than Breen thought it should. The affidavits do not provide sufficient information concerning the relative sizes of the lots and their locations or the circumstances surrounding the purchase of the lots by the Bank to support a reasonable inference that the amount paid by the Bank was less than fair market value. Furthermore, even if a reasonable inference could be drawn from the affidavits that the amount paid by the Bank for the lots was less than their fair market value, we could not conclude that the amount paid was so inadequate as to raise a presumption of fraud, unfairness, or culpable mismanagement. See Hayden v. Smith, 216 Ala. 428, 430-31, 113 So. 293 (1927), where this Court stated:
“ ‘The general rule is that, “where the price realized at the [foreclosure] sale is so inadequate as to shock the conscience, it may itself raise a presumption of fraud, trickery, unfairness, or culpable mismanagement, and therefore be sufficient ground for setting the sale aside.” 27 Cyc. 1508.
“ ‘And, although mere inadequacy of price is not sufficient to that end, it is “always a circumstance to be considered in connection with other grounds of objection to the sale, and will be sufficient to justify setting the sale aside, when coupled with any other circumstances showing unfairness, misconduct, fraud, or even stupid management, resulting in the sacrifice of the property.” 27 Cyc. 1508; Holdsworth v. Shannon, 113 Mo. 508, 21 S.W. 85, 35 Am.St.Rep. 719 [ (1893) ], where the subject is discussed quite fully, with a review of many pertinent cases; 2 Jones on Mortgages (6th Ed.) 1670.’ ”

567 So.2d at 1331-33 (emphasis added).

In this case, the foreclosure sale was held on July 10, 2000. The property was offered for sale by separate lots and then as a whole. Although Regions Bank was the only bidder, it bid on each lot and the second parcel separately, for a total of $1,241,470, and it bid $1,242,000 for the real property as a whole. As stated above, the defendants admit in their brief to this Court that proper notice of the sale was given and that the sale was properly conducted. As the defendants point out, a July 24, 2000, appraisal valued the property at $1,530,000. Assuming that this sum actually represented the fair market value at the time of foreclosure, can we say that Regions Bank’s bid of $1,242,000 was so low as to shock the conscience? We think not.

For the reasons stated above, we affirm the summary judgment in favor of Regions Bank on the original complaint in the amount of $311,013.20, and in favor of Regions Bank on the defendants’ counterclaim.

II.

The defendants argued to the trial court, in their brief in opposition to Regions Bank’s summary-judgment motion, filed on May 22, 2001, that the amount of the deficiency, if any, could not be established at that time. The defendants stated:

“The amount of the deficiency cannot be established at this time. There is a disputed issue of material fact with regard to the amount of the deficiency, if any. Assuming the Court finds that the defendants owe [Regions] Bank a deficiency, its amount is undetermined at this time. At first, [Regions Bank] asked for a deficiency in the amount of $375,122.16. Affidavit of Steve Monger, Exhibit A to [Regions Bank’s] first motion for summary judgment. Later, by amending its motion for summary judgment, [Regions Bank] asked for a deficiency judgment in the amount of $278,640.18. Since that time, [Regions Bank] has sold a portion of the foreclosed land and has a contract on the remainder, which has not closed.... Consequently, the amounts to be credited have not as yet been established.”

In their brief to this Court, the defendants make the following argument:

“The amount of the deficiency cannot be established at this time. There is a disputed issue of material fact with regard to the amount of the deficiency, if any. Regions [Bank] sold the undeveloped acreage (18.2 acres) on December 31, 2000, to Enfinger for about $109,000, about $8,500 more than what [Regions] Bank bid for it at the foreclosure sale.... Regions [Bank] asserted it had a contract with Enfinger Development, Inc. to purchase the remaining lots en masse for $1,150,033 on September 1, 2001, a price in excess of its bid price.... There is nothing else in the record indicating whether or not [Regions] Bank actually sold any of the property prior to the entry of the judgment.
“Regions [Bank] is under a duty to apply any profit realized from the sale of the foreclosed property to the debt. See Springer v. Baldwin County Federal Savings Bank, 562 So.2d 138 (Ala.1990). There is no evidence before the trial court from which to determine any credits allowed to the [defendants] other than the sale of the undeveloped land and a contract to sell the remaining lots after the time for redemption is expired. Consequently, the amounts to be credited to the defendants have not as yet been established.”

(Defendants’ brief, p. 19.)

In Springer v. Baldwin County Federal Savings Bank, 562 So.2d 138 (Ala.1990) (“Springer I”), this Court stated:

“The profit realized by the mortgagee upon resale of foreclosed property during the redemption period is derived from the value of the property itself. The mortgagee, as trustee for the mortgagor, is obligated to apply that profit realized after foreclosure and during the redemption period to the reduction of the mortgagor’s debt, no less than when timber, oil, gas, or minerals are taken and sold. For the mortgagee to be allowed to do otherwise would violate the duty owed the mortgagor.”

562 So.2d at 140.

Springer v. Baldwin County Federal Savings Bank, 597 So.2d 677 (Ala.1992) (“Springer II”), is even more applicable to this case. In Springer II, this Court decided the question of what constitutes “profit” to the mortgagee that sells foreclosed property. This Court stated:

“In Springer I, we held that a
“ ‘mortgagee who purchases the mortgaged property at a foreclosure sale and then resells it to a third party during the statutory redemption period is required to apply the profit (the sum realized by the mortgagee in excess of the amount it paid at foreclosure) to the reduction of the mortgagor’s debt.’
562 So.2d at 139. However, we did not specifically define ‘sum realized’ or ‘profit.’
“The issue now before this Court is whether the term ‘profit’ or ‘sum realized’ is to be determined with or without consideration of any expenses incurred from the sale of the property by Baldwin County Federal Savings Bank (bank). The bank contends that all of the expenses it incurred in selling the property should be deducted from the amount received to determine the ‘profit.’ Tommy Springer contends that the amount of the sale to the third party ($99,000) is the amount realized to the bank and that the bank must bear its own expenses.
“For a history of this case, see Springer I. However, for the purposes of this appeal, we set out the following pertinent facts. Springer defaulted on a note to the bank in an amount over $100,000. That note was secured by certain real property. The bank, as mortgagee, purchased the property at a foreclosure sale, for $88,200. Subsequently, the bank resold the property to a third party for $99,000. The resale occurred during the one-year statutory period of redemption.
“As noted above, this Court in Springer I ordered the trial court to credit against Springer’s debt the ‘sum realized by the Bank in excess of the amount it paid for the property at the foreclosure sale.’ 562 So.2d at 140. On remand, the trial court found that the bank had incurred certain expenses in making the sale to the third party. These expenses included a $6,920 sales commission; a tax service fee of $45; a title insurance fee of $346.50; a maintenance fee of $385.82; and county taxes of $507.36. These expenses totalled $8,204.68. The trial court then entered a judgment for the bank in the amount of $31,946.34, based on the conclusion that the sum realized, or the profit, is the amount left over after the deduction of the expenses. (After expenses, the bank realized, by the trial court’s computation, a ‘profit’ of $2,595.32.)
“At the outset we would point out that this is not a case involving a redemption. At no time during the one-year period did Springer attempt to redeem the property. Therefore, we are not concerned with what are considered to be ‘lawful charges’ pursuant to the redemption statutes. Rather, we are concerned with those necessary and ordinary expenses incurred in the management of foreclosed property.
“In Springer I this Court relied on Bartlett v. Jenkins, 213 Ala. 510, 105 So. 654 (1925), for the proposition that the bank, as trustee for Springer, was obligated to apply the profit realized from the sale to Springer’s debt. As noted above, this Court did not specifically define ‘profit’; however, in Bartlett it is clear that the ‘profit’ was determined by subtracting certain expenses from the proceeds of the sale. These included expenses of advertising, selling, and conveying the property.
“Although this Court in Springer I has held that a mortgagee, in certain circumstances, is in a position of quasi-trustee over the property purchased, we cannot conclude that he is a trustee at his own expense. If this Court were to disallow the recovery of the ordinary and necessary expenses incurred by the bank, we would be thwarting any ultimate benefit to debtors in the future. This is so because a mortgagee (in this case, the bank) would have no incentive to act within the one-year redemption period, because in acting the mortgagee will necessarily spend money, which it would not be allowed to recover. If the mortgagee is disallowed the recovery of these expenses, it would appear that the natural consequence would be for the mortgagee to be reluctant to expend any money to sell the property, and thus there would arise the possibility of no benefit to the debtor.”

597 So.2d at 677-78.

In its brief to this Court, Regions Bank argues that its bid of $1,242,000 was 81% of the appraised value of $1,530,000, based on an appraisal made only two weeks after the sale, and Regions Bank points out that this appraisal contemplated a long-term development and subdivision marketing plan, not a foreclosure. Regions Bank argues that “anyone purchasing the vacant lots and raw acreage would be required to hold the property for one year before commencing development, thus absorbing the interest cost related to the foreclosure bid for equal period of time.” (Regions Bank’s brief, p. 17.) Regions Bank further argues that the record shows that “all of [Regions Bank’s] attempts to sell the subdivided lots were unsuccessful due to the existence of the Defendants’ right of redemption,” and that “[t]he right of redemption materially and substantially impaired the value of the property,” and that “no reasonable person could have found the bid placed by Regions [Bank] to have been so low as to shock the conscience,” and that “the trial court was correct in finding no genuine issue of material fact existed as to the accuracy of the deficiency balance remaining after the application of [Regions Bank’s] bid at the foreclosure sale.” (Regions Bank’s brief, p. 17.)

Based on the foregoing, we conclude that the amount of the bid made by Regions Bank at the foreclosure sale was not so low that it should have shocked the conscience; consequently, we affirm the summary judgment.

This opinion was prepared by Retired Justice Hugh Maddox, sitting as a Justice of this Court pursuant to § 12-18-10(e).

AFFIRMED.

MOORE, C.J., and SEE, BROWN, HARWOOD, and STUART, JJ., concur.

      . The record does not reveal why this sale did not take place. In Sisco’s affidavit, which appears in the record, Sisco states that he signed the contract with Enfinger in conjunction with a second contract. Sisco stated: ''[T]hese two contracts, taken together, would have allowed me ... to walk away from these developments debt free.... Neither contract was implemented, for reasons unknown to me.”

      . The sum of the bids offered for each individual lot and the second parcel amounted to $1,241,470; the bid for the property as a whole was $1,242,000.

      . The order reads as follows:
      "The Court, having reviewed [Regions Bank’s] Amended Motion for Summary Judgment, the pleadings, the Affidavits of Steve Monger, [chairman of Regions Bank in Huntsville,] Terry D. West [vice president/commercial loans of Regions Bank in Huntsville,] and Robert Reynolds [one of Regions Bank’s attorneys whose testimony supported Regions Bank’s request for attorneys fees] in Support of [Regions Bank's] Motion for Summary Judgment, the Responses in Opposition to Plaintiff’s Summary Judgment and Supporting Affidavits, the Responses filed by Defendants and the supporting affidavits and having considered all other admissible evidence, is of the opinion that there is no genuine issue as to any material fact, and that [Regions Bank) is entitled to a judgment as a matter of law. It is, therefore, Ordered, Adjudged, and Decreed as follows:
      "1. Judgment is hereby rendered in favor of Regions Bank and against Defendants, Mt. Carmel Estates, Inc., Charles M. Sisco, Jr., H. David Wall and Mychiallyn Wall, for the principal sum of $278,640.18, interest in the amount of $22,373.02, and attorney fees in the amount of $10,000.00, for a total judgment in the amount of $311,013.20.

      "4. Judgment is rendered in favor of [Regions Bank] and against Defendants as to Defendants’ counterclaims as amended.”
      It appears that the trial court accepted the facts as stated in the affidavit of Terry West, dated March 19, 2001, in which he stated:
      "6. At the time of said mortgage foreclosure sale, there was due and owing by the Defendants to Regions Bank the following:

        "Principal $ 1,559,938.75
      "Accrued Interest $ 51,348.24
      "Late Charges $_400.00
      "Payoff as of Foreclosure Sale Date $ 1,611,686.99
      "7. The proceeds of said mortgage foreclosure sale were applied first to the costs and expenses of foreclosure and preforeclosure workout negotiations representing attorney fees and expenses in the amount of $3,926.41 and foreclosure advertising costs of $1,508.76, resulting in net sales proceeds of $1,236,564.83, which proceeds were applied to pay accrued interest of $51,348.24, late charges in the amount of $400.00 with the remaining sum of $1,184,816.59 applied to the outstanding balance of the loan resulting in an after foreclosure deficiency as of July 10, 2000, of the sum of $375,122.16.
      "8. I have reviewed the factual matters set forth in the affidavit of Steve Monger attached to the original Motion for Summary Judgment filed by our attorneys on behalf of Regions Bank on February 8, 2001. Since the filing of that Motion, Regions Bank has settled with the Defendant, Myron R. Wilson, for the sum of $130,000.00 and this Affidavit is offered in support of the Amended Motion for Summary Judgment to which this Affidavit is attached. In exchange for the Pro Tanto Release of Myron R. Wilson, and payment by Mr. Wilson on February 16, 2001, of the sum of $130,000.00, the settlement proceeds were applied as follows:
      "Deficiency Amount ”$375,122.16
      "Attorney fees from July 11, 2000 through February 28, 2001. $ 10,803.85
      "Accrued interest from July 11, 2000, through January 4, 2001 at which time the interest decreased from 9.5% to 9.0% $ 18,547.60
      "Accrued interest from January 5, 2001, through February 16, 2001. $ 4,256.57
      "Subtotal $ 33,518.02 [sic, $33,608.02]
      "Balance Applied to principal balance $ 96,481.98 [sic]
      "Amended Deficiency Principal $278,640.18 [sic]
      "9. After the application of the $130,000.00 payment from Mr. Wilson, as set forth above, there remained due and owing, as of February 16, 2001, the principal sum of $278,640.18. Interest has continued to accrue subsequent to February 16, 2001, at the variable rate of interest as provided under the note which rate was equal to 9.00% per annum from February 16, 2001, which is equal to a daily per diem of $68.70.”

      . Durrett and Bundles state that a foreclosure sale that yields less than 57% of the property’s fair market value can be set aside and indicates in dicta that a sale for less than 70% of the property’s fair market value can be set aside.

      . The record contains an affidavit of Terry D. West, a loan officer for Regions Bank, who stated:
      “The acreage property was, however, sold on December 31, 2000, for net proceeds in the amount of $106,973.50 or approximately $6,500 more than the amount originally proposed by Enfinger Development, Inc., under the terms of the contract which the Defendants had signed.... Of course, the interest accrual upon the value of the 18 acres absorbed substantially all this gain. In addition, [Regions] Bank has been required to pay to date $9,200 in homeowner association fees and has received a special assessment of another $250 per lot for the current year. [Regions] Bank also paid $2,270.55 in ad valorem taxes.”