author: ROBERTS, J., IRVING, J.,

text:
    Marilyn BUSBY, Appellant v. Patricia ANDERSON, Executrix of the Estate of William Burnley, Deceased, Appellee.
    No. 2003-CA-02699-COA.
    Court of Appeals of Mississippi.
    Nov. 28, 2006.
    Rehearing Denied July 31, 2007.

      Charles Cameron Auerswald, Richard L. Kimmel, Greenwood, attorneys for appellant.
    Tara Strickland, Clifford Roy A. Smith, attorneys for appellee.
    Before KING, C.J., BARNES and ■' ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. Marilyn Busby’s lawsuit against William Burnley has been before the courts of this state for more than eleven years. Marilyn sued William in the Washington County Circuit Court incident to a single vehicle car accident. Marilyn was a passenger in William’s car when it left the road and crashed into a ditch. Marilyn claimed William drove his car in a negligent manner and caused her to suffer injuries. William denied that he was negligent. The.dispute went to trial. Ultimately, the jury returned a verdict for William. Following unsuccessful posttrial motions, Busby appeals and raises the following issues, listed verbatim:

I. THE TRIAL COURT ERRED IN DENYING MARILYN BUSBY’S REQUEST FOR PEREMPTORY INSTRUCTION.

II. THE TRIAL COURT ERRED IN DENYING MARILYN BUSBY’S POST-TRIAL MOTION TO RENEW REQUEST FOR PEREMPTORY INSTRUCTION/JUDGMENT AS A MATTER OF LAW.

III. THE TRIAL COURT ERRED IN DENYING MARILYN BUSBY’S POST-TRIAL MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT.

IV. THE TRIAL COURT ERRED IN DENYING MARILYN BUSBY’S POST-TRIAL MOTION TO SET ASIDE JURY VERDICT AND VACATE JUDGMENT.

V. THE TRIAL COURT ERRED IN DENYING MARILYN BUSBY’S POST-TRIAL MOTION FOR NEW TRIAL.

VI. THE TRIAL COURT ERRED IN ALLOWING DEFENDANT’S JURY INSTRUCTION D-2.

William responded and claimed that Marilyn’s appeal is untimely. However, the record contained Marilyn’s unresolved motion for extension of time to appeal. We notified the circuit court of Marilyn’s unresolved motion for extension and gave the circuit court an opportunity to either grant or deny Marilyn’s motion. The circuit court granted Marilyn’s motion. As such, we turn to the merits of Marilyn’s appeal. We find that the circuit-court erred when it refused Marilyn’s request for a peremptory instruction, when it overruled Marilyn’s request for a directed verdict, when it instructed the jury according to the language of instruction D-2, and when it overruled Marilyn’s motion for new trial. Accordingly, we reverse and remand this matter to the circuit court for a new trial consistent with this opinion.

FACTS

¶ 2. On Monday January 18, 1993, William Burnley, Mayor of Greenville from 1975 until 1990, left Greenville, Mississippi and drove his car to Lake Providence, Louisiana. Marilyn Busby accompanied William. From 1978 until 1990, Marilyn was the Coordinator for the Greenville Beautification Department. Marilyn and William were engaged at the time.

¶3. William drove to Lake Providence. During their trip, Marilyn noticed that his breathing changed and that he veered over to the right. Marilyn asked William if he would let her drive. William refused to let Marilyn drive. Once they arrived in Lake Providence, William collected fifty dollars on a winning Louisiana lottery ticket and purchased more lottery tickets. After-wards, William and Marilyn began the return trip to Greenville.

¶ 4. Marilyn testified that William’s breathing changed again and that William drifted towards the center of the road. According to Marilyn, she again asked William whether he would let her drive. William refused again. Not long afterwards, William’s breathing changed and he drifted off the right side of the road. Marilyn testified that she asked to drive a third time and, as he did twice before, William refused Marilyn’s offer to drive. William denied that Marilyn offered to drive. Instead, William claimed that he asked Marilyn to drive for him and that' she refused to drive.

¶ 5. Their return trip took them through Chicot County, Arkansas. It was in Chi-cot County, Arkansas that William’s car veered off U.S. Highway 65. Marilyn claimed that William fell asleep. William admitted that he fell asleep. That is, William characterized his loss of control over his car to the fact that he “passed out,” or was otherwise “unconscious” at the time his car left the road.

¶ 6. Emergency responders removed Marilyn and William from the car. Marilyn was taken to the Chicot Memorial Medical Center and then transferred to King’s Daughters Hospital in Greenville. Marilyn stayed in King’s Daughters Hospital from the date of the accident until February 22, 1993. Marilyn had serious injuries to her head, her ear was nearly severed, and she broke her right arm, multiple ribs, and her pelvis. Marilyn also sustained serious injuries to her right wrist and her lungs. Marilyn underwent surgery to repair a life-threatening lung condition known as Adult Respiratory Distress Syndrome. Additionally, Marilyn’s arm required a stabilizing “Rush Rod” in order to heal properly.

¶ 7. Once she was discharged from King’s Daughters, Marilyn was transferred to Methodist Rehabilitation Hospital in Jackson, Mississippi. Marilyn stayed at that hospital for an additional five weeks. Marilyn went through physical therapy and occupational therapy. After she left the Methodist Rehabilitation Hospital, Marilyn went through additional physical therapy with Delta Medical Center. Marilyn also relied on home health care to help her with her daily necessities.

¶ 8. Ten months later, Marilyn progressed to the point that Dr. Fred Sandifer performed surgery and removed the Rush Rod from her arm. Marilyn also underwent treatment for pain in her shoulder and her pelvis. Marilyn also experienced severe jaw pain due to her head injuries. To treat the pain, Marilyn had to wear a splint in her mouth. Prior to trial, the parties stipulated that Marilyn’s past medical expenses arising from the accident were $43,500.

¶ 9. On June 3, 1994, Marilyn filed a complaint against William in the Washington County Circuit Court. In her complaint, Marilyn alleged that William drove his car negligently and caused her to suffer “severe personal injuries and damages including past, present and future pain and suffering and emotional distress, and ... substantial past and future medical expenses and loss of wages or wage earning capacity.” Marilyn requested $500,000 in compensatory damages and $500,000 in punitive damages.

¶ 10. On March 30, 2000, the matter proceeded to trial. After each side presented evidence, the jury returned a verdict for William. The circuit court entered its final judgment on April 18, 2000. On April 27, 2000, Marilyn filed several post-trial motions. Specifically, Marilyn filed motions: (a) to renew her request for peremptory instruction and her request for a judgment as a matter of law; (b) to set aside the jury verdict and vacate the judgment; (c) for judgment notwithstanding the verdict; (d) for a new trial; and (e) to alter or amend the judgment for additur. It appears that the circuit court considered all of Marilyn’s posttrial motions on August 24, 2000. Following that hearing, the circuit court took Marilyn’s motions under advisement. The circuit court did not file its order denying Marilyn’s posttrial motions for three years. The circuit court finally filed its order on August 21, 2003.

¶ 11. On September 15, 2003, Marilyn filed a motion to extend time in which to file her notice of appeal. The circuit court neither granted nor denied that motion. In any event, after no action by the trial judge to either grant or deny her motion to extend the time for appeal, Marilyn filed her notice of appeal on October 20, 2003.

ANALYSIS

I. Timeliness of Appeal

¶ 12. William claims that Marilyn’s appeal is untimely. Before we address Marilyn’s claims on appeal, it is proper to determine whether William is correct. If Marilyn’s appeal is untimely, it is entirely unnecessary to address Marilyn’s claims.

¶ 13. The circuit court overruled Marilyn’s posttrial motions on August 13, 2003. According to Rule 4 of the Mississippi Rules of Appellate Procedure, once the circuit court overruled her posttrial motions, Marilyn had thirty days to file her notice of appeal. M.R.A.P. 4(a), (d). Marilyn filed her notice of appeal on October 20, 2003.

¶ 14. True enough, Marilyn filed a motion for extension of time to file her notice of appeal and the circuit court did not deny that motion. However, the circuit court did not grant that motion either. When Marilyn’s appeal first reached this Court, her motion for extension of time to file her notice of appeal was still pending and unresolved. The record contained no order that would allow Marilyn to file her notice of appeal past the thirty day deadline set forth in M.R.A.P. 4. “Timely notice of appeal is jurisdictional.” Curry v. B.C. Rogers Poultry, Inc., 797 So.2d 265(¶ 11) (Miss.Ct.App.2001) (citing Bank of Edwards v. Cassity Auto Sales, Inc., 599 So.2d 579, 582 (Miss.1992)).

¶ 15. We notified the circuit court that it had not resolved Marilyn’s motion for extension of time to appeal. In response to our request for resolution, the circuit court granted Marilyn’s motion for extension of time. M.R.A.P. 4(g) allows a trial court to grant an aggrieved litigant an extension of thirty days to file a notice of appeal if the litigant files a timely motion for extension of time and shows good cause. Consequently, Marilyn’s notice of appeal is timely. As such, Marilyn’s appeal is before this Court. We turn to her issues on appeal.

II. Sufficiency and Weight of the Evidence

¶ 16. As will become abundantly clear, all six issues on appeal are intertwined. Marilyn’s first three issues implicate the sufficiency of the evidence. A motion for directed verdict, a request for peremptory instruction, and a motion for JNOV all challenge the legal sufficiency of the evidence. Johnson v. State, 642 So.2d 924, 927 (Miss.1994). Technically, we are required to review the evidence and the ruling on its sufficiency as of the time the last challenge was made in the trial court. Id. Marilyn last challenged the sufficiency of the evidence in her motion for JNOV. As this analysis will show, the circuit court erred when it declined to grant Marilyn’s request for a peremptory instruction that William was negligent and when it overruled her motion for a directed verdict. However, the circuit court did not necessarily err when it overruled Marilyn’s motion for JNOV.

¶ 17. The granting of a motion for JNOV under M.R.C.P. 50(b) operates to terminate the case. C & C Trucking Co. v. Smith, 612 So.2d 1092, 1099 (Miss.1992). Because fact issues are present, ripe for jury resolution, the correct procedural device to cure the error we detect is to grant a new trial under M.R.C.P. 59(a). This remedy will permit the jury to apportion comparative negligence, if any, by Marilyn and to quantify Marilyn’s damages.

¶ 18. Marilyn accused William of negligence in operating his vehicle. A pri-ma facie case of negligence involves “duty or standard of care, breach of that duty or standard, proximate causation, and damages or injury.” Lyle v. Mladinich, 584 So.2d 397, 398-99 (Miss.1991).

¶ 19. The driver of a motor vehicle owes an invited passenger the duty to exercise reasonable care in the operation of his vehicle. Hatcher v. Daniel, 228 Miss. 196, 206, 87 So.2d 490, 492 (1956). Further, the driver of a vehicle must not unreasonably expose an invited passenger to danger of an injury by increasing the hazard of travel. Id. What is more, a driver has the duty to take notice of an obvious danger and to take reasonable steps to avoid an accident or injury to persons or property after he has knowledge of the danger. Barkley v. Miller Transporters, Inc., 450 So.2d 416, 419-20 (Miss.1984).

¶ 20. William and Marilyn were the only two eyewitnesses to the accident. Marilyn claimed that William breached his duty to her when he fell asleep and lost control of his car. As mentioned, William admitted that he fell asleep at the wheel in that he characterized his loss of control over his car to the fact that he “passed out,” or was otherwise “unconscious” at the time his car left the road. To be sure, William did not challenge Marilyn’s version of events. Instead, William claimed that it was Marilyn’s fault that he lost control of his car because she failed to accept his offer to drive.

. ¶ 21. At trial, William testified that he asked Marilyn to drive and that she refused. Marilyn testified just the opposite. Marilyn testified that she offered to drive but William refused. In any event, William testified that he felt he could “come on in” to Greenville — meaning he could continue to drive, albeit in his sleepy and drowsy condition. , William draws much attention to the fact that Marilyn filed her nails after she refused, but the fact that she refused is much more relevant than what she did afterwards. According to William, “[t]he jury ... found that [Marilyn] was negligent (for not driving when [William] requested, or not taking measures to help him stay alert and awake or for continuing to ride with him under the circumstances) and that her negligence was the sole proximate cause of the accident and her injury.”

¶ 22. William’s principal defense to Marilyn’s claim resembles the doctrine of assumption of risk. William claims that Marilyn, knowing of his sleepiness and nodding off while at the wheel and then refusing his request to assume the duties of a driver, voluntarily placed herself in a position of peril. The Mississippi Supreme Court has abolished the defense of assumption of risk as an absolute bar to a plaintiffs claim. See Churchill v. Pearl River Basin Dev. Dist., 757 So.2d 940(¶ 12) (Miss.1999) (holding “that the assumption of risk doctrine is subsumed into comparative negligence. Any actions which might constitute an assumption of risk should be dealt with only in the context of the comparative negligence doctrine.”) Accordingly, such issues are comparative negligence issues ripe for jury resolution.

¶ 23. William submits that Mississippi precedent illustrates that, under certain circumstances, a driver’s negligence can become negligence by the passenger. William directs us to Chapman v. Powers, 150 Miss. 687, 116 So. 609 (1928). In Chapman, a plaintiff was a passenger in a .car driven.by her husband. The plaintiffs husband drove into a pile of gravel. The plaintiff sued the paving contractor responsible for the gravel. A jury returned a verdict in favor .of the plaintiff and awarded $500 in damages. The plaintiff appealed and claimed the damages award was inadequate and that it evidenced prejudice and passion by the jury. The Chapman court affirmed and, in so doing, made the following statement:

[T]he jury could have found, and many have found, from the evidence, that a large part of the negligence proximately contributing to [the plaintiffs] injuries was her own negligence in riding in a car, between eleven and twelve at night, driven by her husband, who was in such a drunken condition as to render him unfit to drive the car with reasonable care and skill. Although the general rule is that a guest in an automobile is not chargeable with the negligence of his host, it is also true that the facts and circumstances may be such that the negligence of the host may become the negligence of the guest. If it is manifest that the host, from drunkenness, or other cause, is unfit to drive the car, and that his driving will endanger the life and limbs of others, and the guest is aware of that condition of affairs, and voluntarily rides in the car with such a host, the negligence of the latter becomes the negligence of the guest.

Id. 150 Miss, at 694, 116 So. at 611.

¶ 24. William also relies on Hill v. Dunaway, 487 So.2d 807 (Miss.1986). In that case, a passenger sued a driver after the driver crashed into a ditch. A jury returned a verdict for the passenger in the amount of $50,000. The passenger, Hill, appealed and claimed the damages award was grossly inadequate.

¶ 25. On appeal, the passenger claimed that the trial court erred when it gave a comparative negligence instruction. The Hill court affirmed the trial court and stated:

In our view this instruction correctly states the law and was amply supported by the evidence. The record reflects that Plaintiff Hill, immediately prior to the accident, was aware that Dunaway had been drinking beer for a considerable period of time — even assuming that Dunaway had had nothing to drink for the past hour. Further, Hill knew that a few minutes previously Dunaway had almost fallen asleep and had swerved off onto the shoulder of the road. From this evidence a jury may reasonably have concluded that Dunaway’s extensive beer consumption or sleepiness, or the two in combination, presented a danger. A jury -could further reasonably have concluded that Hill knew or should have known of these dangers, singly or in combination, and that knowing of these things, decided to take his chances. Well within the evidence was a jury conclusion that Hill’s omissions constituted a failure to exercise ordinary and reasonable care for his own safety which may well have contributed to his injury.

Hill, 487 So.2d at 809.

¶ 26. True enough, precedent indicates that a passenger may incur comparative negligence when they are aware of a danger involving a driver’s continued operation of a vehicle, yet do nothing to mitigate their risk. Still, the- precedent indicates that such a passenger’s negligence is comparative only, meaning that the driver may be negligent at the same time. This is not a new concept..

There are few agencies more fraught with danger to life and property than an automobile proceeding at a high rate of speed along a highway covered with loose gravel, without the direction of a conscious mind; and the fact that one continues to drive- an automobile at a high rate of speed after he recognizes and appreciates signals of the near approach of sleep furnishes a proper basis from which an inference of negligence may be drawn.

Gower v. Strain, 169 Miss. 344, 352, 145 So. 244, 246 (1933).

¶ 27. Unlike Chapman or Hill, the jury in this case returned a verdict for William and attributed one hundred percent of the negligence to Marilyn. We find that the evidence in this case is insufficient to support the jury’s verdict. The jury’s verdict is against the substantial, overwhelming weight of the evidence and evinces -bias, passion, and prejudice. We know of no legal requirement that Marilyn was obligated to take the wheel of William’s car. No reasonable or fair-minded juror could find that, because Marilyn refused to drive William’s car, Marilyn was the sole proximate cause of her injuries. To conclude-such is to completely ignore William’s own behavior in refusing to stop his car when he knew he was too ill or sleepy to drive. While it is the jury’s province to determine where William’s negligence ends and Marilyn’s begins, to say Marilyn is one hundred percent negligent and William not at all negligent is entirely inconsistent with the evidence.

• ¶ 28. We hold as a matter of law that William was negligent in the operation of his vehicle. Whether Marilyn’s damages were solely caused by William’s negligence or were caused by the combined negligence of William and Marilyn is a proper issue for jury resolution.

¶ 29. The dissent would find that William was one hundred percent' negligent and that his negligence was the sole cause of Marilyn’s injuries. Consequently, the dissent would remand for a new trial on damages only. According to the dissent, “there is no evidence that William was in any way unfit to drive when he and Marilyn left Greenville for the trip to Lake Providence, Louisiana.”

¶ 30. The dissent is correct that there is no evidence that, at the time William and Marilyn left Greenville, William was in any way unfit to drive. However, there certainly is evidence in the record that, after the layover in Lake Providence, Marilyn got back in the car with William after William’s driving had indicated he may be too sleepy or unfit to make the return trip. The dissent quotes portions of William’s testimony. However, portions of Marilyn’s testimony indicate that Marilyn knew that something was wrong with William and that he may have been unfit to drive during the trip to Lake Providence as well as during the return trip to Greenville. Marilyn’s testimony is central to the resolution of whether to remand for an entirely new trial or to find, as a matter of law, that William was solely negligent which would necessitate that we remand for a new trial on damages only.

¶ 31. As mentioned, Marilyn testified that, on both the trip to Louisiana to cash in the lottery tickets and the return trip to Greenville, William appeared to fall asleep at the wheel. She testified that William’s breathing changed and that he veered or drifted off to either side of the road. The dissent recognizes William’s testimony that he “got kind of dozy” on the return trip to Greenville. Accordingly, there is no dispute that, during the return trip, William behaved in a manner that suggested he was unfit to drive. However, we face a dispute in testimony as to what transpired as a result of William’s sleepy behavior. William testified that he asked Marilyn to drive and that she refused. Marilyn testified that she asked William to let her drive and that he refused.

¶ 32. “A motion for new trial should only be granted when the entire evidence, viewed in the light most favorable to the non-moving party, leaves the trial judge with a firm and a definite conviction that the verdict, if allowed to stand, would work a miscarriage of justice.” Hopkins v. Schaeffer, 840 So.2d 737(¶ 6) (Miss.Ct.App.2003). In the light most favorable to William, a hypothetical juror could find that Marilyn was aware of William’s drowsy condition and, despite William’s request, Marilyn refused to drive and continued as a guest passenger in a vehicle being operated by afiriver about to fall asleep at the wheel. According to established precedent, by refusing to drive it is possible that a jury could find that Marilyn was responsible, in some degree, for her own injuries. Though this opinion is in no way suggestive as to the outcome of this matter on remand, it is certainly reasonable that a jury may find William entirely at fault for Marilyn’s injuries. However, based on our standard of review and the circumstances described in both William and Marilyn’s testimony, it is for the jury to consider apportioning liability and resulting damages, if any, not this Court.

¶ 33. The proper approach would have been to instruct the jury that William was negligent as a matter of law and then allow the jury to consider and determine by proper instructions whether William was solely negligent or whether Marilyn was comparatively negligent. See Choctaw Maid Farms v. Hailey, 822 So.2d 911(¶ 11) (Miss.2002). If the jury found Marilyn bore some degree of comparative negligence, the jury should have then found to what degree. Id. The jury should have determined- Marilyn’s- total damages and reduced her damages based upon her degree of comparative negligence, if any, all under proper instructions from the court. Id.

¶ 34. Instruction D-2 stated, in pertinent part:

Therefore, if you find by a preponderance of the evidence that Marilyn Busby was a passenger in the vehicle being driven by William Burnley and that due to the circumstances then and there existing, Ms. Busby knew and appreciated that Mr. Burnley was unfit to drive the car and that she was fully aware of this and she chose to voluntarily ride in the car despite such knowledge, then if you find that Mr. Burnley was negligent and that said negligence resulted in the accident in question, then you also must consider whether or not Ms. Busby was negligent, and whether her negligence, if any, contributed to the accident,

(emphasis added). The jury should have never been allowed to consider that William was not negligent. The uncontradict-ed proof showed that he was negligent.

¶ 35. A peremptory instruction that William was negligent and his negligence was a proximate contributing factor to Marilyn’s injury, such as the instruction in question in issue one, was proper. A directed verdict that the jury return a verdict for Marilyn would have also been proper. The circuit court did neither. It is the trial judge’s duty to properly instruct the jury on controlling principles of Mississippi law. Fielder v. Magnolia Bev. Co., 757 So.2d 925(¶ 10)(Miss.1999)(holding instructions must fairly announce the law of the case and create no injustice).

¶ 36. Given the circumstances, the actual proper procedural vehicle to correct this error is a new trial. On retrial, the jury can be guided by proper instruction on apportionment of negligence, with at least some negligence attributable to William, as well as on the issue of damages. “A motion for a new trial seeks to vacate a judgment on grounds related to the weight, not sufficiency, of the evidence.” Verner v. State, 812 So.2d 1147(¶ 6) (Miss.Ct.App.2002). A new trial should be granted when the jury has been confused by faulty jury instructions, the verdict is against the overwhelming weight of the evidence, or is based on bias, passion, or prejudice. Hamilton v. Hammons, 792 So.2d 956(1144) (Miss.2001). “A motion for a new trial is addressed to the trial court’s sound discretion.” Fleming v. State, 732 So.2d 172(¶37) (Miss.1999). We may only reverse the circuit court’s decision when we are convinced that the circuit court abused its discretion when it overruled Marilyn’s motion for a new trial. Smith v. State, 868 So.2d 1048(¶ 11) (Miss.Ct.App.2004). We conclude the circuit court abused its discretion when it denied Marilyn’s motion for a new trial.

¶ 37. Even in the light most favorable to William, there is no conflict over whether William fell asleep at the wheel. The overwhelming weight of the evidence indicated that William was negligent to some degree, whether solely or comparatively. A jury must resolve that question, as well as assessment of damages. Because the circuit court overruled Marilyn’s motion for new trial, the circuit court abused its discretion. Accordingly, we reverse the circuit court and remand this matter for a new trial consistent with this opinion.

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

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY CHANDLER, J.

IRVING, J.,

dissenting.

¶ 39. The majority finds the evidence sufficient to support a verdict of comparative negligence and remands for a new trial to determine whether Marilyn was guilty of contributory negligence in the accident that caused substantial injury to her. The majority also finds that William was negligent as a matter of law and directs that on remand the jury shall be so instructed. I agree that the record supports a finding that William was negligent as a matter of law and that the jury should be so instructed. However, my reading of the record convinces me that the majority errs in its assessment of the evidence regarding Marilyn’s actions. Therefore, I respectfully dissent. I would find that William was 100 percent negligent and that his negligence was the proximate cause of Marilyn’s injuries. Consequently, I would remand for a new trial on damages only.

¶ 40. The majority reasons that, based on William’s statement that he asked Marilyn to drive and she refused, a jury could find that she contributed to causing the accident. In my view, this reasoning is flawed. First, Marilyn was never in control of the vehicle; therefore, nothing that she did or refused to do could have caused the accident. To say that her refusal to drive may have caused or contributed to the accident is to say that her refusal to drive caused or forced William to continue to drive in a debilitated condition. Extending this reasoning further, one would have to conclude that Marilyn’s refusal to drive left William with only one option: to keep driving. Even William does not make this claim. He says he kept driving because he felt like he could “come on in” to Greenville.

¶ 41. There is absolutely no evidence in this record to support a finding that William was in any way precluded from pulling his vehicle over to the side of the road and taking a nap or other measures to alleviate his drowsy condition. Suppose William had been traveling alone when he became sleepy or drowsy. Would he have been justified in continuing to drive because he had no one to assist him with the driving? Suppose further that he continued to drive, crossed the centerline, and collided head-on with an oncoming car, injuring the driver of that car. Could it be legitimately argued that, because he did not have anyone to help him drive, he would not be 100 percent liable for the injuries he caused? I think not. Therefore, it seems to me that when Marilyn refused to drive, William, as the operator of the vehicle, was required to do what any prudent driver should do when he finds himself getting sleepy at the wheel: pull over at the nearest rest stop and take a nap. Since he failed to do so, he, and he alone, must suffer the consequences, because it was he, and he alone, who made the decision to continue driving under the mistaken belief that he could “come on in” to Greenville.

¶ 42. The majority also makes conflicting and contradictory statements in its analysis of the evidence, and, in some instances, makes factual statements that are not supported by the record. For example, the majority says, “[t]o be sure, William did not challenge Marilyn’s version of events.” Majority Opinion at (¶ 20). The record clearly shows that William, in his trial testimony, contradicted Marilyn’s testimony that he became sleepy, drifted across the centerline, and drifted off the edge of the road during the trip to Lake Providence, Louisiana. In fact, William’s testimony was that he encountered no problems during the trip over to Lake Providence. Yet, the majority relies on Marilyn’s testimony — that during the trip to Lake Providence, William dozed off at least twice — to conclude that a jury could find that Marilyn was guilty of contributory negligence by continuing to ride with William after it became clear to her that William was in no shape to continue driving. I And it illogical that the majority would make Marilyn’s testimony the fulcrum of its rationale for concluding that a jury could find that Marilyn contributed to her own injuries by continuing to ride with William after she knew that his driving abilities had become impaired by sleep. The illogicalness lies in the fact that William is the one who claims that Marilyn is contributively negligent, yet William denies that he became drowsy during the trip to Lake Providence. Notwithstanding Marilyn’s testimony, it is distorted logic and bad jurisprudence to credit William with the beneficial legal consequences of incidents which he says never occurred. One cannot accept William’s version, which is discussed below, of what transpired during the trip to Lake Providence and, at the same time, find that Marilyn was guilty of contributory negligence for continuing to ride with him.

¶43. Also, the majority’s statement that “portions of Marilyn’s testimony indicate that Marilyn knew that something was wrong with William and that he may have been unfit to drive during the trip to Lake Providence as well as during the return trip to Greenville” is a bit misleading, if not disingenuous, for it can be interpreted as meaning or subtly implying that Marilyn had knowledge of William’s unfit state before leaving Greenville on the trip to Lake Providence.

¶ 44. Finally, it is inexplicable to me that the majority concludes that a jury could find that Marilyn was guilty of contributory negligence for refusing to accept William’s request to drive, but at the same time, states that it “know[s] of no legal requirement that Marilyn was obligated to take the wheel of William’s car. No reasonable or fair-minded juror could find that, because Marilyn refused to drive William’s car, Marilyn was the sole proximate cause of her injuries.” Majority Opinion at (¶ 27). It seems axiomatic to me that if there is no legal requirement that Marilyn was obligated to take the wheel of William’s car, there can be no negligence on her part for not doing so.

¶ 45. The majority cites several cases in which the court held that a passenger’s actions or inactions could be considered in calculating the passenger’s entitlement to damages. In my judgment, none of the cases are applicable to the facts before us. In the first case cited, Chapman v. Powers, 150 Miss. 687, 116 So. 609 (1928), the passenger voluntarily got in a car being driven by her drunken husband, who drove into a pile of gravel. In affirming a meager jury award for the passenger, the Chapman court said: “If it is manifest that the host, from drunkenness, or other cause, is unfit to drive the car, and that his driving will endanger the life and limbs of others, and the guest is aware of that condition of affairs, and voluntarily rides in the car with such host, the negligence of the latter becomes the negligence of the guest.” Id. at 694, 116 So. at 611. In our case, there is no evidence that William was in any way unfit to drive when he and Marilyn left Greenville for the trip to Lake Providence. As is discussed below, there also is no evidence that William was unfit to drive back to Greenville.

¶ 46. In the next case, Hill v. Dunaway, 487 So.2d 807, 809 (Miss.1986), the passenger was aware that the driver had been drinking beer for a considerable period of time prior to the accident which led to the passenger’s injuries. Again, these facts are not our ease. There is no evidence that William was engaged in any activities prior to the trip which would have caused Marilyn to know or reasonably believe that it was unsafe to travel with William. For sure, there is Marilyn’s testimony that, during the trip to Lake Providence, William became drowsy or sleepy and that he again became drowsy or sleepy on the return trip. However, Marilyn testified that on each of these occasions she asked William to let her drive and he refused. William denied that these incidents occurred. The record reflects the following testimony by William on direct examination:

Q. On the trip to Lake Village or to Lake Providence, what problems, if any, did you have driving that you’re aware of?
A. None that I’m aware of at all.
Q. You heard Ms. Busby say on the way over there — I can’t remember whether it was between here and Lake Village or Lake Village and Lake Providence — but on the way over there that on one occasion that you had dozed off. Is that correct?
A. No, sir, that’s not right.

¶ 47. On cross-examination, William continued to deny the instances of drowsiness or sleepiness about which Marilyn testified:

Q. And you also deny that Ms'. Busby — you also deny, the first thing, that you dozed off on the way to Lake Providence?
A. I certainly do.
Q. So, it’s your testimony in front of the Jury here today, Mr. Burnley, that the only time you recall dozing off is one occasion? At some point prior to the accident. You don’t know if it was immediately before, or it might have been two miles before?
A. That’s exactly right.

¶ 48. I return to William’s direct examination testimony, which undergirds the majority’s rationale for finding an issue of fact regarding Marilyn’s contributory negligence vel non. William’s testimony is instructive:

Q. All right, after you ate lunch and you got your lottery tickets, tell me what happened then.
A. We — uh—proceeded to return to Greenville, and — uh—we were coming up 65. Uh — as we were approaching the Arkansas and Louisiana line, I got kind of dozy, and she — I think at that time she recognized that I was kind of sleepy, and she asked me. And I said, yes. Would you take the wheel? Would you drive?
Q. What did she say to you?
A. She said no, I’m going to do my fingernails. And — uh—she put her glasses on and proceeded to do her fingernails. And beyond that, the next thing I knew was a day or so later I was in the Delta Medical Center.

¶ 49. It is clear to me that, based on this evidence and the applicable law, no reasonable jury can find that Marilyn contributed to her injuries and damages. First, there is absolutely no evidence that Marilyn was negligent in choosing to accompany William on the trip. Second, based on William’s testimony, there is no evidence to support a finding that during the trip to Lake Providence Marilyn became aware that William was impaired to the extent that it was unsafe for him to continue to drive. As I have already noted, William emphatically denied that he became sleepy or drowsy during the trip to Lake Providence and admitted to only one instance of sleepiness or drowsiness on the return trip prior to the accident. And as to that one instance, William could not say whether it occurred two miles up the road prior to reaching the spot where the accident occurred or whether it occurred immediately before the accident. More importantly, William did not say, with regard to the one instance of drowsiness, that he ran off the road or drifted across the cen-terline. He simply said that he “got kind of dozy.” Therefore, it cannot be reasonably argued that, based on this one admitted incident by William, Marilyn possessed prior knowledge that William was in a condition that could lead to an accident and her subsequent injuries. All of the cases cited by the majority which hold that the passenger may have contributed to the passenger’s injuries involved instances where there was no doubt that the driver was seriously impaired and the passenger knew for quite some time prior to the accident of the driver’s impairment.

¶ 50. As I have already discussed, Marilyn’s knowledge of William’s unfitness to drive was acquired after, not before, she and William set out on their trip to Lake Providence. This is a major and significant fact which materially distinguishes this case from the cases cited by the majority. Further, William denied that Marilyn acquired any knowledge regarding his unfitness to drive during the trip to Lake Providence. As I have already pointed out, William said that he never became sleepy on the way to Lake Providence. However, even if I were to indulge the efficacy of the majority’s reasoning that, despite Williams’ denial, Marilyn’s testimony should be held against her, I cannot accept that it is reasonable to hold that, when Marilyn first saw William doze, she was required to get out of the car on the roadside and expose herself to perhaps an even greater danger in order to avoid some liability. And, to predicate liability on the fact that she did not get out in Lake Providence, where arguably it was probably safer to do so, is to overlook that they arrived safely in Lake Providence, with no apparent indication that William was still struggling with sleepiness. Moreover, the stop in Lake Providence may well have had the effect of reviving William to the point that his alertness was no longer an issue. To hold that Marilyn was potentially negligent for not getting out of William’s car in Lake Providence is to assume that William was unfit to drive when they left Lake Providence and that Marilyn was aware of that fact. The record does not support a finding that William was still suffering from sleepiness when he and Marilyn left Lake Providence and began the return trip home. It would be pure conjecture and speculation to conclude otherwise. That he did in fact later become sleepy does not prove that he was sleepy when he left Lake Providence. A jury cannot base its verdict on conjecture and speculation.

¶ 51. For the reasons presented, I respectfully dissent. I would remand this case for trial as to damages only.

CHANDLER, J., JOINS THIS OPINION.

      . The record contains a notice of hearing. According to that notice of hearing, the circuit court heard Marilyn's posttrial motions on August 24, 2000.

      . Posttrial, William died from causes unrelated to this accident. The executrix of his estate was substituted as the defendant.

      . William’s cited authority all predate Churchill.

      . The majority does not make entirely clear the basis for its finding that a jury could potentially find that Marilyn contributed to her damages. It discusses both Marilyn's testimony that she requested to drive during the trip over to Lake Providence, Louisiana and William's testimony that Marilyn refused his request to assist with the driving during the return trip. It appears that the majority reasons that a jury could fault Marilyn for her actions and inactions during both the trip over and the trip back. In this dissent, I address the legal impact of her actions and inactions which occurred during the entire trip.

      . I am aware that the ultimate issue is whether Marilyn committed or omitted an act which may have contributed to her injuries as opposed to the accident. However, on these facts that is a distinction without a difference because the act that is alleged to give rise to her negligence and subsequent injuries is the act of refusing to drive.

      . See Majority Opinion at (¶ 30), finding that "Marilyn's testimony is central to the resolution of whether to remand for an entirely new trial or to find, as a matter of law, that William was solely negligent which would necessitate that we remand for a new trial on damages only.”


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    WAREHOUSING MANAGEMENT, LLC and R.W. Castens, Appellants, v. HAYWOOD PROPERTIES, LP, Haywood Trucking, Inc. and R. Charles Haywood, Appellees.
    No. 2007-CA-00438-COA.
    Court of Appeals of Mississippi.
    April 1, 2008.

      Richard Redfern, attorney for appellants.
    John Robert Elliott, David L. Morrow, Brandon, Brendan Clark Sartin, attorneys for appellees.
    Before LEE, P.J., CHANDLER and BARNES, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. The Chancery Court of Rankin County entered a judgment finding R. Charles Haywood to be the owner by adverse possession of a twenty-eight-foot parcel of disputed property located on the border of his property and that of R.W. Castens. Aggrieved, Castens appeals and argues that the chancery court erred in finding that Haywood proved his claim of adverse possession by clear and convincing evidence.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. This case stems from a dispute over a twenty-eight-foot parcel of land located in Pearl, Mississippi. Haywood was the owner of Haywood Properties, LP and Haywood Trucking, Inc., which were located on his property. Castens was the owner of Warehousing Management, LLC, which was located on his property to the south.

¶ 4. Haywood owned two acres of real property in Pearl, Mississippi, which was adjacent to Castens’s property to the south. The properties of Haywood and Castens shared a property fine that ran east and west. The property line formed the southern border of Haywood’s property, and it formed the northern border of Castens’s property.

¶ 5. Haywood acquired his two acres in 1971. Castens acquired his property in 1998, via a warranty deed from Kenneth Bush and Jay Bush. The Bushes had previously acquired the property in 1986, via a warranty deed from Erbie Moore and Ger-tie Blackmon. The Moores acquired the property in 1970.

¶ 6. This dispute arose in 2008 when Castens hired Charles Craft to survey the property to determine the boundary lines. Castens originally became suspicious that the boundary lines were incorrect in 2000. According to Craft’s survey, Castens’s boundary line was actually twenty-eight feet north of the line that Castens and Haywood had treated as the boundary. Until that time, Haywood had treated a utility pole as the southwest corner of his property, but the survey showed the pole was actually twenty-eight feet into Cas-tens’s property. In addition, Craft’s survey showed that Castens’s building obstructed the property of his southerly neighbors. Those neighbors, Mary Nell and Bill Barnett, agreed to convey approximately thirty feet of their property to Castens for no monetary consideration.

¶ 7. Haywood filed suit seeking to establish the boundary line at the utility pole. Upon agreement of the parties, the chancery court appointed a surveyor to determine the boundary line. T.E. McDonald conducted the survey for the court, and his findings matched those of Craft. Thereafter, Haywood filed an amended complaint, which sought the chancery court to declare him to be the owner of the disputed parcel by adverse possession.

¶ 8. Since acquiring his property in 1971, Haywood made a number of improvements. He filled the disputed area with sand and gravel and maintained it by grading the gravel. Haywood built a fence along the western border of the property, and he granted an easement over the disputed parcel to the City of Pearl. He installed lights along the boundary and kept the area lit at night. Haywood kept the area cleared and parked his company’s trucks and trailers there. He also paid the ad valorem taxes for the disputed property.

¶ 9. Castens’s predecessors-in-title testified at trial concerning the disputed property. First, Blackmon testified that she and Haywood treated everything north of the utility pole as Haywood’s property. She agreed that Haywood had “exclusive right” to the disputed portion, and she and her husband only used the property with Haywood’s permission.

¶ 10. Next, Kenny Bush testified that he treated the same utility pole as the boundary between his property and that of Haywood. He also thought that Haywood was the exclusive owner of the disputed property. Bush only used the disputed property when he needed to back trucks up to his loading docks, but he used the property with Haywood’s permission.

¶ 11. Neither Bush nor Blackmon ever had any arguments with Haywood over the property. There was not a dispute between Haywood and Castens either until Haywood’s wife prevented Castens from using the gate to get through the fence on the west side of the disputed property. Allegedly, Castens’s truck drivers had been operating their trucks in a manner that damaged the disputed area. Haywood then alleged- that Castens pierced one of his trailers with a forklift and that Castens damaged Haywood’s trailers when he removed some of Haywood’s fence posts and placed them on the trailers.

¶ 12. In the chancellor’s opinion, he found that Haywood actually possessed the disputed parcel consecutively for thirty-two years, twenty-seven of those coming before Castens acquired ownership of the southerly property. The chancellor -found that Haywood’s control of the property was undisputedly obvious to his neighbors for all of those thirty-two years, and his acts in maintaining and improving the disputed parcel were reflective of one claiming possession of the property. The chancellor also concluded that Haywood’s use of the property was exclusive and that his ownership of the property was never challenged until 2003.

¶ 13. Accordingly, the chancellor adjudicated Haywood to be the owner of the disputed parcel. He ordered that the property line should run east to west along on the south side of the previously mentioned utility pole.

STANDARD OF REVIEW

¶ 14. This court applies a limited standard of review in regard to decisions of a chancellor. Nichols v. Funderburk, 883 So.2d 554, 556(¶ 7) (Miss.2004). We will not reverse a chancellor’s decision unless it was manifestly wrong, it was clearly erroneous, or the chancellor applied an incorrect legal standard. Id. If there is substantial evidence to support the chancellor’s finding, we must affirm. Id.

ANALYSIS OF ISSUES

¶ 15. Castens asserts only one issue: whether the chancellor erred in finding that Haywood proved his claim of adverse possession by clear and convincing evidence. However, with the exception of the peacefulness requirement, Castens argues the chancellor erred in finding each element of adverse possession in Haywood’s favor.

¶ 16. There are six elements a claimant must prove to establish a claim of adverse possession. Rice v. Pritchard, 611 So.2d 869, 871 (Miss.1992) (citing Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150, 1152-1153 (Miss.1992)). Possession must be “(1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Id. The party alleging adverse possession must prove each of these elements by clear and convincing evidence. Id.

A. Open, notorious, and visible

¶ 17. A “landowner must have notice, actual or imputable, of an adverse claim to his property in order for it to ripen against him, and the mere possession of land is not sufficient to satisfy the requirement of open and notorious.” Scrivener v. Johnson, 861 So.2d 1057, 1059(¶ 6) (Miss.Ct.App.2003) (quoting People’s Realty & Dev. Corp. v. Sullivan, 336 So.2d 1304, 1305 (Miss.1976)). An adverse possessor “must unfurl his flag on the land, and keep it flying, so that the (actual) owner may see, and if he will, that an enemy has invaded his domains, and planted the standard of conquest.” Wicker v. Harvey, 937 So.2d 983, 994(¶ 35) (Miss.Ct.App.2006) (quoting Blankinship v. Payton, 605 So.2d 817, 820 (Miss.1992)).

¶ 18. The chancellor found that this element was satisfied by the testimony of the previous owners of Castens’s property. Each of the previous owners was aware of Haywood’s possession and claim to the property. They admitted their use of the property was only by permission from Haywood. Haywood improved the disputed area by filling it with sand and gravel, installing light poles, and building a fence along its western boundary. He graded the gravel and maintained the property. In addition, he granted an easement on the property to the City of Pearl, and he paid the ad valorem taxes for the property. In regard to a claim of adverse possession, “[p]ayment of taxes ... is very important and strong evidence of a claim of title.... ” Wicker, 937 So.2d at 995(¶ 38) (quoting McCaughn v. Young, 85 Miss. 277, 293, 37 So. 839, 842 (1905)). These acts were continuous for twenty-seven years before Castens purchased the adjacent property.

¶ 19. There was substantial evidence to support the chancellor’s finding that Haywood’s use of the property was open, notorious, and visible. The chancellor found the evidence clearly and convincingly established that Haywood “[ran] up his flag of possession on the disputed property,” and we find that was not in error.

B.Actual or hostile .

¶ 20. Actual possession is “effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses.” Wicker, 937 So.2d at 993-94(¶ 34) (quoting Blankinship, 605 So.2d at 819-20). An occupant of land who mistakenly believes the land lies within the boundaries established by his own deed, when the land actually belongs to another, may acquire title to that land by adverse possession. Alexander v. Hyland, 214 Miss. 348, 357-58, 58 So.2d 826, 829-30 (1952) (citing Evans v. Harrison, 130 Miss. 157, 163-64, 93 So. 737, 738 (1922)).

¶ 21. The chancellor found that Haywood “maintained effective control, perceptible to the eyes and senses, of his adjoining neighbors over the disputed property for an uninterrupted period of approximately [thirty-two] years.” As in Alexander, Haywood was under a mistaken belief that the property was included in his deed, and he acted accordingly. Taking into account Haywood’s acts in possessing the property, we find no error in the chancellor’s conclusion.

C. Under claim of ownership

¶ 22. “The claim of ownership must have existed at the beginning of the statutory period of possession and not possession with the intent to claim as soon as the statutory period passed.” Blackburn v. Wong, 904 So.2d 134, 137(¶ 19) (Miss.2004) (quoting Coleman v. French, 233 So.2d 796, 796 (Miss.1970)). The evidence is clear that from the time Haywood purchased his property, he believed that he was the owner of the disputed twenty-eight feet. He did not set out to claim the property of another. He was under the impression that he had a claim to the title and possession of the disputed area. The chancellor found that, for an excess of ten years, he acted as such.

¶ 23. We find no error with the chancellor’s determination that Haywood possessed the disputed property under a claim of ownership.

D. Exclusive

¶ 24. Exclusive possession is “an intention to possess and hold land to the exclusion of, and in opposition to, the claims of all others, and the claimant’s conduct must afford an unequivocal indication that he is exercising dominion of a sole owner.” Keener Props., LLC v. Wilson, 912 So.2d 954, 956-57(¶ 6) (Miss.2005) (quoting Lynn v. Soterra, Inc., 802 So.2d 162, 168(¶ 17) (Miss.Ct.App.2001)). The requirement of exclusive use does not mean that others could not have used the disputed property. Moran v. Sims, 873 So.2d 1067, 1069(¶ 10) (Miss.Ct.App.2004).

¶ 25. The chancellor found the great weight of the evidence supported a finding of exclusive possession, and we agree. Castens argues that Haywood did not exclude the property’s true owners, and he cites to Rawls v. Parker, 602 So.2d 1164 (Miss.1992), in support of his argument. However, we find Rawls distinguishable. In Rawls, the true owner of the property objected to the adverse possessor’s use of the land and timely took legal action against him. Id. at 1169. In the present case, Haywood used the property exclusively for thirty-two years with no objections from his neighbors.

¶ 26. The other cases to which Castens cites are also distinguishable because the use of the land by Haywood was not intermittent, and any use by the prior owners of Castens’s property was only with permission from Haywood. We find there was substantial evidence of exclusive use, and the chancellor did not err in finding this element in Haywood’s favor.

E. Continuous and uninterrupted for a period often years

¶27. The chancellor found that Haywood possessed the disputed parcel for thirty-two years, which was more than sufficient for adverse possession. Castens claims in his appellate brief that Haywood’s occupation was actually simultaneous with the occupation by Castens and Castens’s predecessors-in-title. Castens argues Haywood’s occupation of the property was insufficient to establish adverse possession because Castens simultaneously used the property, and so did the Moores and Bushes.

¶ 28. We find this argument to be lacking. As previously stated, both of Cas-tens’s predecessors-in-title testified that Haywood’s ownership of the property was exclusive and that they only used it with Haywood’s permission. There was no evidence that there was any interruption to Haywood’s use of the property from the time he purchased his property in 1971 until the court ordered Haywood and Cas-tens to keep off the property pending resolution of the dispute.

¶ 29. On appeal, Castens made no challenge to the peacefulness of Haywood’s occupation, and there was no evidence to suggest the occupation was anything but peaceful.

¶ 30. Upon review of the record, we find there was substantial evidence in support of each of the elements of adverse possession. We, therefore, find the chancellor did not err in determining that Haywood proved his claim of adverse possession by clear and convincing evidence and awarding him title to the disputed parcel of land.

¶ 31. THE JUDGMENT OF THE CHANCERY COURT OF RANKIN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . Gertie Blackmon is Moore’s widow. She had the surname "Moore” when she and her late husband acquired the property.


author: LEE, P.J.,

text:
    Edward BYROM, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-CP-00638-COA.
    Court of Appeals of Mississippi.
    April 1, 2008.

      Edward Byrom, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On June 21, 2001, Edward Byrom pleaded guilty in the Circuit Court of Tish-omingo County to conspiracy to commit capital murder, accessory before the fact of grand larceny, and accessory before the fact of burglary of a dwelling with intent to commit assault. Byrom was sentenced to serve twenty years, five years, and twenty-five years, respectively, with twenty years suspended and five years post-release supervision, in the custody of the Mississippi Department of Corrections. The sentence in each count was ordered to run consecutively.

¶ 2. Byrom filed a motion for post-conviction relief on November 14, 2006, alleging that he was subjected to double jeopardy because the elements of the crimes he was convicted of overlapped; therefore, he argues that his sentences should have been ordered to run concurrently rather than consecutively. The trial court, in denying Byrom’s motion, upheld his sentences stating that each crime required proof of different elements.

¶ 3. Byrom now appeals, asserting that he was denied his right to be free from double jeopardy and that his punishment was cumulative.

¶ 4. Finding this appeal is time-barred, we affirm.

STANDARD OF REVIEW

¶ 5. A trial court’s denial of post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). However, when issues of law are raised, the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

DISCUSSION

¶ 6. According to Mississippi Code Annotated section 99-39-5(2) (Rev.2007), a post-conviction relief motion must be filed within three years after the entry of the judgment of the conviction. Byrom’s judgment was entered on June 21, 2001, and he did not file his post-conviction relief motion until November 14, 2006, well beyond the three-year limitation. Section 99-39-5(2) sets forth certain exceptions to the three-year limitation, which include: (1) an intervening decision by either the United States Supreme Court or the Mississippi Supreme Court that would have actually adversely affected the outcome of the prisoner’s conviction or sentence; (2) a prisoner’s possession of evidence that was not reasonably discoverable at the time of the trial, but had such evidence been introduced at trial, it would have caused a different result; and (3) a prisoner’s claim that his sentence has expired or his probation, parole, or conditional release have been unlawfully revoked. Byrom makes no claim within these exceptions; therefore, Byrom’s motion for post-conviction relief is time-barred.

¶ 7. Since the trial court did not discuss the time-bar and focused only on Byrom’s argument that his consecutive prison sentences were cumulative and violated his right to be free of double jeopardy, we will also briefly address this issue. Byrom argues that the elements of breaking and entering a dwelling with the intent to commit assault are incorporated in the charge of conspiracy to commit capital murder. He also argues that the elements of grand larceny are included in the breaking and entering charge. These crimes are completely different and require proving different sets of elements. We agree with the trial court’s ruling that this argument is without merit.

¶ 8. We find that the trial court did not err in denying Byrom’s motion for post-conviction relief. The judgment of the trial court is affirmed.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF TISHOMINGO COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TISH-OMINGO COUNTY.

KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


author: PER CURIAM. COBB, Chief Justice MURDOCK, Justice

text:
    H&S HOMES, L.L.C. v. John McDonald.
    1051556.
    Supreme Court of Alabama.
    July 6, 2007.
    Rehearing Denied Aug. 24, 2007.
    David L. Selby II and Jon M. Hughes of Kee & Selby, LLP, Birmingham; and Steven J. Kyle of Bovis, Kyle & Burch, LLC, Atlanta, Georgia, for appellant.
    Michael S. Harper, Tallassee; and Frank H. Hawthorne, Jr., of Hawthorne & Myers, LLC, Montgomery, for appellee.
   PER CURIAM.

H&S Homes, L.L.C. (“H&S”), appeals from a judgment awarding John McDonald compensatory and punitive damages in McDonald’s action against H&S alleging fraud, conversion, and wantonness. We reverse the judgment for McDonald and render a judgment for H&S.

In January 2000, John McDonald and his wife, Christina, purchased a manufactured home from H&S. The McDonalds subsequently sued H&S and its agents, Linda Wilson Williams and Russ D’Olym-pio, asserting various claims, including fraud, conversion, and wantonness. H&S and D’Olympio moved to compel arbitration of the McDonalds’ claims, and the trial court granted the motion as to Christina’s claims, but denied the motion as to John’s claims. H&S and D’Olympio appealed, and this Court affirmed the trial court’s order. H&S Homes, L.L.C. v. McDonald, 823 So.2d 627 (Ala.2001). After an arbitration hearing, the arbitrator awarded Christina $500,000. H&S appealed, and we affirmed that award. H&S Homes, L.L.C. v. McDonald, 910 So.2d 79 (Ala.2004).

John McDonald’s claims of fraud, conversion, and wantonness against H&S were tried before a jury, and the jury returned a verdict against H&S for $40,000 in compensatory damages and $400,000 in punitive damages. H&S filed a motion for a judgment as a matter of law or, in the alternative, for a new trial or a remittitur. The trial court denied the postjudgment motion, and H&S appealed.

When our review of a ruling on a motion for a judgment as a matter of law involves a question of law, we indulge no presumption of correctness as to the trial court’s ruling. Myrick v. Barron, 820 So.2d 81, 83 (Ala.2001). Of course, “ ‘[tjhis Court is limited to a review of the record, and the record cannot be changed, altered or varied on appeal by statements in briefs of counsel.’” Burkes Mech., Inc. v. Ft. James-Pennington, Inc., 908 So.2d 905, 911 (Ala.2004)(quoting Wal-Mart Stores, Inc. v. Goodman, 789 So.2d 166, 176 (Ala.2000)). In other words, “[f|acts not of record will not support a judgment.” Ex parte Brooks, 897 So.2d 1017, 1021 (Ala.2004).

H&S alleges, and McDonald does not dispute, that McDonald’s claims against H&S were based entirely upon the actions of H&S’s agents and codefendants, Williams and D’Olympio. However, the only claims submitted to the jury were, McDonald’s wantonness, fraud, and conversion claims against H&S. Consequently, the threshold issue in this case is whether the agents were dismissed without prejudice before the claims against H&S were submitted to the jury.

After the agents answered McDonald’s complaint, they could have been dismissed by McDonald in only two ways. First, McDonald could have dismissed them “by filing a stipulation of dismissal signed by all parties who [had] appeared in the action.” Rule 41(a)(l)(ii), Ala. R. Civ. P. Second, they could have been “dismissed at [McDonald’s] instance ... upon order of the court.” Rule 41(a)(2).

H&S argues that the agents were never dismissed from this action, pointing out “that no stipulation or order of dismissal appears in the record, nor was any motion to dismiss without prejudice ever made.” H&S’s reply brief, at 3. McDonald, on the other hand, steadfastly maintains that the agents were dismissed without prejudice before trial. Based upon the record before this Court in this appeal, we must agree with H&S.

The record does not contain a stipulation for the dismissal of the agents. Also, the record does not contain an order dismissing the agents. In fact, the record does not reflect that McDonald, by formal motion or otherwise, sought to dismiss his claims against the agents. Although McDonald may have, in effect, abandoned his claims against the agents before trial, he did not obtain their dismissal without prejudice in either of the only two ways allowed by Rule 41. Thus, we must consider the effects, if any, of the omission of the claims against the agents from the trial court’s oral charge to the jury.

It is clear that “[t]he omission of the claims against [the agents] from the jury charge was tantamount to a [judgment as a matter of law] for [the agents] and against [McDonald].” Alfa Life Ins. Corp. v. Jackson, 906 So.2d 143, 153 (Ala.2005).

“[I]f, in a case of claims to be tried by a jury, ... the trial court does not of record formally reserve or sever a claim for separate disposition, the omission of that claim from the judgment actually entered will be deemed a judgment on the merits of that claim adverse to the claimant.”

Jackson, 906 So.2d at 153. Thus, although H&S has been held vicariously liable for the torts of its agents, the agents have been exonerated on the merits as a matter of law.

The procedural posture of this case makes it impossible for McDonald to recover from H&S. The adjudication on the merits in favor of the agents exonerated H&S from vicarious liability for the agents’ torts and entitled H&S to a judgment as a matter of law. Jackson, 906 So.2d at 154-55. Therefore, the judgment of the trial court is reversed, and a judgment is rendered for H&S.

REVERSED AND JUDGMENT RENDERED.

SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ„ concur.

COBB, C.J., and MURDOCK, J„ dissent.

COBB, Chief Justice

(dissenting).

The record contains the following statement by the trial court in its order of June 14, 2006, addressing H&S’s motion for a judgment as a matter of law or, in the alternative, for a new trial:

“[H&S] argues that because the jury was not charged as to the employees [Linda Wilson Williams and Russ D’Olympio], there was, in effect, an adjudication in favor of the employees. Thus, there can be no finding against [H&S] since there was no wrongdoing on the part of the employees. Alfa Life Ins. Corp. v. Jackson, 906 So.2d 143 (Ala.2005).
“[H&S’s] argument assumes that the case proceeded against all three Defendants. However, it was abundantly clear to all the parties that Williams and D’Olympio had been dismissed pri- or to the trial. When the Court conducted voir dire, it explained to the prospective jurors who the parties were. No mention was made of the employee defendants by the Court and no party interrupted to suggest that Williams and D’Olympio were still litigants. The claims against them were not recorded or severed. In light of Jackson, the Court and the litigants should have exercised more care in recording the status of the employee defendants.
“Unlike the situation in Jackson, however, this Court never declared that the employee defendants were dismissed ‘with prejudice.’ Instead, the situation is identical to the one referenced in Oswalt v. Scripto, Inc., 616 F.2d 191 (5th Cir.1980). [John McDonald] dismissed both Williams and D’Olympio prior to trial without objection. The dismissal was, in substance, one without prejudice. It was never suggested by the Court or any litigant that the dismissal was with prejudice.”

Thus, I respectfully disagree with the conclusion in the majority opinion that the record does not contain any indication that the claims against the two agents were dismissed. My examination of the record shows nothing that contradicts the trial court’s statement above that it was “abundantly clear to all the parties” that the agents had been dismissed. Rather, it appears that H&S presented its case through the entry of the verdict by the jury without mentioning the absence of its agents from the proceeding and then asserted, after the verdict was returned against it, that its agents had not, in fact, been dismissed. Finally, it is particularly noteworthy that H&S argues the technical lack of a formal stipulation of dismissal of the agents vyithout challenging the trial court’s statement that all the parties to the litigation understood that the agents had been dismissed.

Further, I note that this .case is not analogous to the situation in Alfa Life Insurance Corp. v. Jackson, 906 So.2d 143 (Ala.2005), in which this Court determined that the claims against the agent had been dismissed with prejudice. It is also noteworthy that the Court in Jackson recognized, as did the trial court here, that a trial court’s statement — as opposed to a formal stipulation in strict compliance with Rule 41, Ala. R. Civ. P. — that certain parties had been dismissed could have effect:

“[W]e acknowledge Oswalt v. Scripto, Inc., 616 F.2d 191, 195 (5th Cir.1980):
‘Nor are we deterred from finding a stipulated dismissal by the fact that' there is ho formal stipulation of dismissal entered in the record by the Oswalts or Scripto. This court approved a district court’s finding that an oral dismissal of claims against defendants in the course of a trial was sufficient to constitute a dismissal under Rule fl(a)(l)[, Fed.R.Civ. P.J even though there was no formal dismissal or stipulation filed with the clerk. Harkless v. Sweeny Independent School District of Sweeny, Texas, 554 F.2d 1353, 1360 (5th Cir.1977), aff'g in part, 388 F.Supp. 738, 749 (S.D.Tex.1975). The Tenth Circuit in Pipeliners Local [Union No. 798, Tulsa, Oklahoma v. Ellerd, 503 F.2d 1193 (10th Cir.1974),] has found that a ver-' bal stipulation of dismissal in open court sufficed for the purpose of Rule 41(a)(l)(ii). Compare, [Battle v.] Municipal Housing Authority for the City of Yonkers, [53 F.R.D. 423 (S.D.N.Y.1971) ].’
“We rely only tentatively and partially on Oswalt, as we would prefer compliance with Rule 58, for all of the virtues and benefits of following the rules.”

Jackson, 906 So.2d at 153-54 (emphasis added). I do not view the situation here as akin to the situation in Poston v. Gaddis, 372 So.2d 1099 (Ala.1979), where an outstanding counterclaim was deemed to have been disposed of adversely to the claimant in a final judgment' when the proceedings never acknowledged the existence of the counterclaim. The holding of the Court in Poston concerning that claim was as follows:

“It is thus we conclude that when no evidence is presented concerning a claim, the court’s oral charge to the jury makes no mention of such claim and judgment is rendered on all other issues presented and covered by the oral charge, then the judgment will be considered a final judgment as to all issues .... On the other hand, if a claim is to be adjudicated in a separate proceeding, the record must reflect an order of severance or an order for a separate trial entered prior to judgment. ... In the absence of such an order in this situation, the judgment will be deemed a final judgment on all issues pleaded and any claims which are not specifically disposed of in the judgment will be deemed to have been rejected , or de.nied.”

372 So.2d at 1101 (emphasis added). In light of that holding in Poston, the Court in. Jackson stated:

“Thus, if, in a case of claims to be tried by a jury, like the case now before us, the trial court does not of record formally reserve or- sever a claim for separate disposition, the omission of that claim from the judgment actually entered will be deemed a judgment on the merits of that claim adverse to the claimant.”

906 So.2d at 153. I emphasize that the holding in Poston, limited to the situation of a counterclaim that was not addressed, is not the situation in this case and does not call for the broad application of the statement in Jackson noted above, particularly in light of the trial court’s statement on the record that the agents had been dismissed.

Moreover, even if that statement in Jackson is applied to this case, it does not follow that a judgment as a matter of law for the agents invalidates the judgment of liability against H&S based upon the jury’s verdict. The plain purpose of a rule that claims not adjudicated are deemed disposed of adversely to the claimant is to bar the relitigation of such claims, based upon the presumption that a trial court’s judgment addresses all the claims before the court. Dutton v. Chester F. Raines Agency, Inc., 475 So.2d 545 (Ala.1985); M.C. Dixon Family P’ship, LLLP v. Envision Props., LLC, 911 So.2d 711, (Ala.Civ.App.2005); and Horwitz v. Horwitz, 897 So.2d 337 (Ala.Civ.App.2004). See generally 50 C.J.S. Judgments § 539 (2007), and 46 Am. Jur.2d Judgments § 74 (2007). The fact that the agents in this action are properly protected from relitigation does not require the invalidation of the jury’s verdict against H&S. The jury in this case determined that H&S was liable as a result of its agents’ misconduct, and the agents in this case are entitled to a judgment as a matter of law because the claims against them were not sent to the jury. That is, the agents have obtained a judgment on the merits because of a legal principle embodied in the statement in Jackson that presumes that the trial court’s judgment resolves all the claims in the action. The effect of that legal presumption is not an adjudication of the facts of the agents’ misconduct on behalf of H&S. I believe that the majority wrongfully reverses the judgment entered on this jury verdict, and I dissent.

MURDOCK, Justice

(dissenting).

After careful consideration of this Court’s prior decisions and the circumstances presented in this case, I am compelled respectfully to dissent. Although I largely agree with Chief Justice Cobb’s dissenting opinion, I write separately to more fully explain my views, including why this Court should revisit its decision in Alfa Life Insurance Corp. v. Jackson, 906 So.2d 143 (Ala.2005).

I begin by noting that the record in this case does in fact reflect that, although the complaint named certain agents of H&S Homes, L.L.C. (“H&S”), as defendants, all parties understood from before the trial that the plaintiff, John McDonald, would not be pursuing any claims against H&S’s agents. Among other things, the trial court’s pretrial order describes the only parties as being McDonald and H&S. Further, the transcript of the jury-charge conference clearly reflects that McDonald was pursuing no claims against H&S’s agents. Accordingly, the jury was not asked to, and therefore did not, render a verdict either for or against H&S’s agents on any claim alleged against them in the complaint.

Nonetheless, because McDonald prosecuted his case to a conclusion, obtaining a verdict on his claims against H&S, without ever obtaining a formal dismissal of the claims against H&S’s agents set out in the complaint, it is understandable that our law would impose a judgment “with prejudice” that would bar McDonald from ever again pursuing his claims against H&S’s agents. Obviously, however, this does not mean there has been a true factual finding that H&S’s agents did not in fact commit the underlying tortious acts. To the contrary, the jury heard all the evidence and found as a factual matter that the elements necessary to hold H&S liable, including the commission of the underlying acts by H&S’s agents, were indeed proven.

If what we had before us was a subsequent case in which the agents were attempting to take advantage of the judgment “with prejudice” in their favor, then, of course, they could do so. Here, however, it is the principal who seeks in the same lawsuit to take advantage of that judgment. That judgment is one that resulted from the plaintiffs decision before the trial even began not to pursue his claims against the agents; it is not a judgment that resulted from an actual jury verdict determining the facts of what the agents-did or did not actually do. I do not believe the principal has standing to take advantage of such a judgment. The principal is a separate defendant as to- which all the elements necessary to hold it liable, including the commission of the underlying tor-tious conduct by its agents, were proven at trial. Logically, as to the principal, I do not see how the fact that the plaintiff, for whatever strategic or other reason, chose not to simultaneously pursue a judgment against the agents for their conduct undermines the competence of the evidence presented at that trial or the competence of the jury’s determination, based on that evidence, as to what actually occurred. As to the principal, I see no meaningful distinction between this case and a case in which the plaintiff chooses from the outset never even to name a given agent as a defendant. See, e.g., Louisville & N.R.R. v. Maddox, 236 Ala. 594, 183 So. 849 (1938) (discussed in note 2 infra-, affirming a judgment based on a verdict against a principal on a respondeat superior theory based on evidence implicating the actions of an agent not named as a defendant in the complaint).

The jury heard all the evidence .regarding the acts committed by agents of H&S, and all the evidence as to whether those acts were committed within the line and scope-of their agency. After hearing that evidence, the jury determined that all the factual elements necessary to hold H&S vicariously liable were proven. The fact that H&S’s agents received a judgment in their favor on technical grounds does not rob the jury’s verdict against H&S of its merit.

Revisiting Alfa v. Jackson

The circumstances presented here are much different than those of a case in which the plaintiffs claims against both the principal (on a respondeat superior theory) and the agent (on the underlying tortious conduct) actually are submitted to a jury and a jury then returns a verdict against the principal, but is silent as to the agent, thereby implicitly finding the agent not liable. Under such circumstances, there truly is an inconsistent verdict on the “merits,” that is, on the facts.of what the agent did or did not do. That is not the case here. The jury in this case was not asked to consider any claims against the agents. Likewise, the jury was not asked to consider any claims against the agent in Alfa v. Jackson, a decision upon which the main opinion relies, and a decision that I believe this Court should reconsider.

The Jackson Court based its decision on a Court of Civil Appeals’ decision, Barlow v. Liberty National Life Insurance Co., 708 So.2d 168 (Ala.Civ.App.1997). That Court of Civil Appeals’ opinion was, in turn, based upon this Court’s earlier decision in Larry Terry Contractors, Inc. v. Bogle, 404 So.2d 613 (Ala.1981). In Bogle, the plaintiff sued both the principal and its agent. The case was tried and submitted to the jury as to both of those defendants:

“Plaintiff Bogle brought suit against [among others, an employee of Larry Terry Contractors, Inc.]. A later amendment added defendant Larry Terry Contractors, Inc. The jury verdict was for plaintiff against defendant Larry Terry Contractors, Inc., but the jury did not return a verdict against the other defendants. Larry Terry Contractors, Inc. appealed.”

404 So.2d at 613. Under those circumstances, this Court in Bogle correctly applied the following rule:

“ ‘[Wjhen the principal and his agent are sued in [a] joint action in tort for misfeasance or malfeasance of the servant, and his liability for the conduct of said servant is under the rule of respondeat superior, a verdict in favor of the servant entitles the master to have the verdict against him set aside.’ ”

Bogle, 404 So.2d at 614 (quoting Maddox, 236 Ala. at 600, 183 So. at 853 (emphasis added) ).

The Court in Bogle correctly considered the circumstances presented in that case as involving a verdict by the jury that, by its silence as to the agent, exonerated the agent — that is, a verdict that was tantamount to an affirmative finding that the agent did not commit the underlying tor-tious acts. Under that circumstance, the verdict against the principal logically must be called into question because it is inconsistent with the jury verdict in favor of the agent. As the Bogle Court held:

“The dispositive issue on appeal is whether the verdict can stand against defendant-employer, Larry Terry Contractors, Inc., when defendant-employee, Larry Bolden, was exonerated from personal liability. Appellant contends that the verdict is inconsistent under Alabama law, and after a careful review of the record, we agree.”

Bogle, 404 So.2d at 614 (emphasis added).

In both Jackson and the present case, however, the plaintiffs claims against the agents were not pursued at trial and were never presented to the jury. Thus, the resulting silence of the verdicts as to the claims against the agents cannot provide the basis for concluding that the jury impliedly rendered verdicts in favor of the agents. It is true that, because the plaintiff in each case named an agent as a defendant in the complaint, but never obtained a formal dismissal of such claims, the resulting judgment is properly considered to be “with prejudice” against the plaintiff so that the plaintiff can never sue the agent on the same cause. Such a judgment, however, albeit “with prejudice” as between the plaintiff and the agent, is not the same as “a verdict in favor'of the servant” on the factual merits, as was contemplated in Bogle and Maddox.

I also believe the Court’s opinion in Jackson was misdirected in its use of the Court of Civil Appeals’ opinion in Calhoun v. Pennsylvania National Mutual Casualty Insurance Co., 676 So.2d 1332, 1334 (Ala.Civ.App.1996). The Jackson decision quotes Calhoun for the proposition that “ ‘ “a dismissal of an action with prejudice constitutes an adjudication on the merits and bars any subsequent litigation.”’” 906 So.2d at 154. This statement, of course, is true as to the party against whom the action was brought; that party clearly may assert the dismissal as a prejudicial bar. Calhoun does not hold, however, that a third party has standing to benefit from that dismissal. The Jackson opinion wrongly conflates the above-quoted statement from Calhoun with the above-quoted rule from Bogle to reach its holding that a principal may take advantage of a plaintiffs voluntary decision not to pursue his claims against an agent and thereby shield itself from an otherwise proper jury verdict.

As Chief Justice Cobb states in her dissenting opinion, “[t]he fact that the agents in this action are properly protected from litigation does not require the invalidation of the jury’s verdict against H&S.” 978 So.2d at 696. Chief Justice Cobb goes on to point out two separate and distinct facts: (1) that “the jury in this case determined that H&S was liable as a result of its agents’ misconduct,” and (2) that the agents in this case are entitled to a judgment because the plaintiff chose not to pursue his claims against them. 978 So.2d at 696.' These are indeed two separate facts; the latter does not change the former.

Distinguishing Alfa v. Jackson

Based on the foregoing, I believe Jackson was wrongly decided and that it does not provide a valid basis for the result reached by the main opinion in the present case. Even if Jackson is not to be overruled, however, that case may be distinguished from the present case.

Early on in Jackson, after the plaintiff made an oral motion to dismiss the claims against Alfa’s agent, Rickey English,

“Alfa moved to amend its answer to add this defense:
“ ‘The dismissal with prejudice of all claims against Rickey English acts as an adjudication of all claims against Alfa based upon respondeat superior and such claims are thereby barred.’
“The trial court denied Alfa leave to add that defense and allowed the claims against Alfa to proceed to trial.
“At the close of all the evidence, Alfa moved for a [judgment as a matter of law].”

906 So.2d at 148. One of the grounds upon which Alfa based its motion for a judgment as a matter of law was that the dismissal with prejudice of the claims against English required the dismissal of the claims against Alfa. Id. The trial court denied Alfa’s motion for a judgment as a matter of law.

Like the plaintiff in Jackson, the plaintiff in the present case made it clear early on that he was not pursuing any claims against H&S’s agents. As already noted, the trial court’s pretrial order describes the only parties remaining before trial as being McDonald and H&S, and the subsequent jury-charge conference clearly reflected that McDonald had pursued no claims against H&S’s agents. Importantly, however, unlike the defendant in Jackson, H&S did not argue in its motion for a judgment as a matter of law (or at any other time during the trial) that McDonald could not obtain a judgment against it after McDonald had decided not to pursue his claims against H&S’s agents. H&S made that argument for the first time in its postjudgment motion, after the parties had invested considerable time and financial resources in actually trying the case on the theory that H&S was hable for the actions taken by its agents; after the jury was charged on that theory and the case was submitted to the jury as to H&S alone; and after the jury returned a ver-diet that comported with the law on which it was charged. Given that McDonald had a right to pursue his claims against H&S for the actions of its agents, regardless of whether he also sued the agents individually, and in light of H&S’s failure to raise in its motion for a judgment as a matter of law the defense that this Court created in Jackson, the trial court rightly could have concluded that H&S waived, or should be estopped from asserting, that defense.

      . As McDonald emphasizes, the trial court, in denying H&S’s postjudgment motion, stated: "The plaintiff dismissed both [agents] prior to trial without objection. The dismissal was, in substance, one without prejudice." However, the record simply does not support the trial court's statement.

      . In Maddox, the jury returned an actual verdict in favor of an agent of the principal, but against the principal itself. It was in that context that the Court in Maddox articulated the rule quoted in the text, upon which the Court in Bogle relied. 236 Ala. at 600, 183 So. at 854. Nonetheless, the Court in Maddox proceeded to uphold the judgment against the principal in that case because, although the agent who had been sued received a favorable verdict from the jury, the evidence introduced at trial implicated a different agent of the principal, one who had not been named as a defendant in the complaint. It was based upon the acts of this other, nonparty agent that, this Court reasoned, the jury could have found the principal to be vicariously liable.