text:
    Hillman Seve Ballesterous CLEMONS a/ka/a Hot Dog a/k/a Hi-C, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-02143-COA.
    Court of Appeals of Mississippi.
    March 20, 2007.

      Edmund J. Phillips, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.

      Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   LEE, P.J., for the Court.

PROCEDURAL HISTORY

¶ 1. On November 15, 2005, a jury in the Neshoba County Circuit Court found Hill-man Clemons guilty of the murder of his father, Lamen Earl Clemons. The trial court sentenced Clemons to serve a life sentence in the custody of the Mississippi Department of Corrections. Clemons then filed a motion for a new trial, which the trial court denied. Clemons now appeals to this Court asserting the following issues: (1) the trial court erred in refusing certain jury instructions; (2) the trial court erred in refusing to grant a jury instruction concerning accomplice testimony; (3) the trial court erred in refusing a manslaughter jury instruction; (4) the trial court erred in sustaining the State’s objection to evidence of the victim’s character on cross-examination; and (5) the trial court erred in sustaining the State’s objection to evidence of the victim’s violent behavior.

FACTS

¶ 2. During the summer of 2003, Clemons began talking about killing his father, Lamen. Clemons’s parents were divorced and he lived with his mother until her death in February 2002. Clemons alleges that he was physically and emotionally abused by both of his parents. At some point after Clemons’s mother’s death, La-men moved into the house with Clemons’s little brother. Clemons was already living in his mother’s house with his girlfriend, Neseiya Welch. Clemons resented La-men’s presence in his mother’s home and the two began to argue frequently. This house, located in Philadelphia and previously owned by Clemons’s mother, had been left to Clemons, Clemons’s brother and Clemons’s stepfather.

¶3. In September 2003, Clemons and Welch forged Lamen’s name on an application for a life insurance policy. Welch testified that they both practiced signing Lamen’s name several times before signing the application. After Lamen’s death, Clemons tried to collect the proceeds from the policy but was unsuccessful.

¶ 4. In October 2003, Clemons told Welch he needed to buy a gun in order to kill Lamen. Welch stated that she forged documents in order to obtain a fake identification showing that Clemons was over twenty-one years old. Clemons and Welch then went to a pawn shop where they bought a gun and some bullets.

¶ 5. On the morning of October 30, 2003, Clemons woke up, told Welch “today’s the day,” picked up the gun and walked out of the bedroom. Welch testified that she then heard gunshots and, after peering into the hallway, saw gun smoke by La-men’s room. Clemons then returned to the bedroom with blood on the latex gloves he was wearing, blood on his clothes and the gun in his hand. Welch and Clemons put the gloves and bloody clothes into a plastic bag. At one point Clemons returned to Lamen’s room to retrieve any evidence left behind. Clemons also took Lamen’s gun, cell phone, pager and cash from his wallet.

¶ 6. Clemons and Welch drove to Welch’s old house in Preston, approximately thirty minutes from Philadelphia, in order to dispose of both guns. Deciding that they needed an alibi, Clemons drove Welch to Meridian where they ate at a Captain D’s and threw Lamen’s phone and pager in a dumpster. They waited in Meridian until it was time for a high school football game to be played in Philadelphia. After driving past the house and noting that no one had found Lamen’s body, Clemons and Welch went to the game. Clemons and Welch left the game early to see if anyone had discovered Lamen’s body. Once it was evident that Lamen’s body had not been found, Clemons suggested that he drive Lamen’s van to Meridian to make it look like Lamen had been robbed. The van broke down on the way to Meridian. Ultimately, Clemons and Welch returned home, packed their bags and left for California the next day. Clemons left a note for his brother, who was also living with Clemons, and Lamen. On the way to the bus station in Meridian, Clemons and Welch retrieved the two guns from Welch’s house and disposed of them in a storm drain near Collinsville. Clemons also disposed of the bag of bloody clothes and gloves. Clemons was later arrested for Lamen’s murder. In April 2005, the police found Clemons’s gun in the storm drain and were able to match the gun with bullets and shell casings found at the crime scene.

DISCUSSION

I. DID THE TRIAL COURT ERR IN REFUSING CERTAIN JURY INSTRUCTIONS?

¶ 7. In his first issue on appeal, Clemons argues that the trial court erred in refusing certain jury instructions. Specifically, Clemons states that he was entitled to separate instructions to support his insanity defense. Prior to the end of trial, jury instructions concerning insanity were submitted by both the State and Clemons. However, at the conclusion of the evidence, the State asked to withdraw its insanity instructions claiming that there was no evidence to support Clemons’s assertions that he was insane at the time of the murder. The trial court agreed and ordered all prior instructions concerning insanity, including those submitted by Clemons, to be withdrawn.

¶ 8. The trial court enjoys considerable discretion regarding the form and substance of jury instructions. Higgins v. State, 725 So.2d 220, 223(¶ 15) (Miss.1998). All instructions are to be read together and if the jury is fully and fairly instructed, the refusal of any similar instruction does not constitute reversible error. Groseclose v. State, 440 So.2d 297, 302 (Miss.1983). The trial court may also refuse an instruction that is “without foundation in the evidence.” Jackson v. State, 645 So.2d 921, 924 (Miss.1994). In Mississippi, the question of whether a defendant in a criminal case was insane at the time of the offense is controlled by the M’Naghten test. Woodham v. State, 800 So.2d 1148, 1158(¶ 29) (Miss.2001). Under the M’Naghten test, it must be proved that at the time of committing the act the defendant “was laboring under such defect of reason from disease of the mind as (1) not to know the nature and quality of the act he was doing or (2) if he did know it, that he did not know that what he was doing was wrong.” Id. The inquiry under this test is whether the defendant “did not know right from wrong at the time of committing the act.” Id. It is presumed that the defendant is sane until there is a reasonable doubt regarding his or her sanity. Taylor v. State, 795 So.2d 512, 517(¶ 23) (Miss.2001). When such doubt is raised, the State bears the burden of proving the defendant’s sanity beyond a reasonable doubt. Id.

¶ 9. In the case at bar, Clemons presented no evidence that he was insane at the time he murdered Lamen. It was clear from Clemons’s testimony that he knew it was wrong to kill people but that he felt justified in killing Lamen. Clemons stated, “I felt in my heart I had to kill him.” Clemons also testified that he had threatened to kill Lamen if Lamen ever attempted to abuse him. Although there were vague allusions to his mother’s mental health, there was no evidence that Clemons was suffering from a disease of the mind. The only evidence regarding Clemons’s health related to his diabetes, which he needs daily insulin shots to control. From a review of the record, it seems as if Clemons is trying to infer that any anger he experienced prior to killing Lamen could have resulted from a diabetic attack. However, there was no evidence showing that he experienced an attack the morning Clemons killed Lamen.

¶ 10. Dr. Mark Webb, a psychiatrist who was the State’s expert witness, testified that Clemons’s actions prior to and after the murder clearly show that Clemons was aware of the nature of the act of murder. Clemons’s actions prior to the murder showed that he was planning to kill Lamen: he bought a gun, forged La-men’s name on a life insurance policy, and wore gloves. Clemons actions after the murder also showed that he was attempting to establish his innocence: he cleaned the house, disposed of the guns, took La-men’s things, established an alibi by driving to Meridian, and disposed of Lamen’s van. Clemons offered no expert witness to support his insanity theory, only his family doctor, Dr. Randy Nance, who testified about Clemons’s diabetes and his mother’s health. Furthermore, at the time of the trial Dr. Nance had not seen Clemons in well over a year.

¶ 11. After reviewing applicable law and the trial testimony, the trial court found that there was no foundation in the evidence to support Clemons’s insanity defense; thus, the insanity jury instructions were refused. We can find no abuse on the part of the trial court in doing so. This issue is without merit.

II. DID THE TRIAL COURT ERR IN REFUSING TO GRANT A JURY INSTRUCTION CONCERNING ACCOMPLICE TESTIMONY?

¶ 12. In his second issue on appeal, Clemons argues that the trial court erred in refusing to grant a jury instruction concerning accomplice testimony. In regards to the testimony of Welch, Clemons requested a jury instruction, D^4, as follows:

A person who claims to be criminally involved with others in a crime is an accomplice. The law looks with suspicion and distrust on the testimony of an accomplice, and requires the jury to weigh same with great care and caution and suspicion.

Clemons argues that Welch was an accomplice in the murder. The granting of a cautionary instruction regarding the testimony of an accomplice witness is discretionary with the trial court. Burke v. State, 576 So.2d 1239, 1242 (Miss.1991). There is a two-part test to determine whether a trial judge abused his discretion in these situations. Id. at 1242. First, it must be determined if the witness was in fact an accomplice and, second, if the testimony was without corroboration. Id. A cautionary instruction is warranted when the testimony of an accomplice is “unreasonable, self contradictory or substantially impeached.” Ballenger v. State, 667 So.2d 1242, 1253 (Miss.1995). The trial court abuses its discretion when the State’s evidence rests solely upon the testimony of an accomplice and there is some question as to the reasonableness and consistency of the testimony, or the defendant’s guilt is not clearly proven. Green v. State, 456 So.2d 757, 758 (Miss.1984).

¶ 13. An accomplice has been defined as “a person who is implicated in the commission of a crime ... if the evidence admits a reasonable inference that the witness may have been a co-perpetrator or the sole perpetrator the cautionary instruction should be given.” Williams v. State, 729 So.2d 1181, 1188(¶ 31) (Miss.1998) (citing Dedeaux v. State, 125 Miss. 326, 87 So. 664 (1921)). Although one could infer that Welch was an accomplice due to her actions prior to and after Lamen’s death, Welch’s testimony was not unreasonable, self contradictory or substantially impeached. Futhermore, since Clemons confessed to the murder, there was no question as to his guilt. We can find no abuse of discretion by the trial court in refusing the accomplice instruction.

III.DID THE TRIAL COURT ERR IN REFUSING A MANSLAUGHTER INSTRUCTION?

¶ 14. In his third issue, Clemons argues that the trial court erred in refusing to allow a jury instruction concerning manslaughter. Clemons claims that he killed Lamen in the heat of passion. Mississippi Code Annotated Section 97-3-19(l)(a) (Rev.2006) states that a person is guilty of murder “[w]hen done with deliberate design to effect the death of the person killed.... ” Mississippi Code Annotated Section 97-3-35 (Rev.2006) deals with manslaughter committed in the heat of passion, reading: “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.” “Heat of passion” has been defined as:

[a] state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.

Graham v. State, 582 So.2d 1014, 1017 (Miss.1991) (quoting Mullins v. State, 493 So.2d 971, 974 (Miss.1986)).

¶ 15. Although Clemons described himself as “fully raged” at the time of the killing, we cannot find that terminology sufficient in order to warrant a manslaughter instruction. Despite the fact that Lamen may have abused Clemons, the evidence showed that Clemons had considered killing his father. Clemons forged Lamen’s name on a life insurance policy, bought a gun, threatened to kill Lamen, put on gloves, informed Welch “today’s the day” and proceeded to shoot Lamen eight times. In fact, Clemons’s testimony shows that he felt malice towards Lamen. Furthermore, there was no testimony of any provocation by La-men. Clemons testified that he slept all night, woke up and, although he stated he was angry, decided to kill his father. We can find no error by the trial court in refusing to grant a manslaughter instruction.

IV. DID THE TRIAL COURT ERR IN SUSTAINING THE STATE’S OBJECTION TO EVIDENCE OF THE VICTIM’S CHARACTER ON CROSS-EXAMINATION?

V. DID THE TRIAL COURT ERR IN SUSTAINING THE STATE’S OBJECTION TO EVIDENCE OF THE VICTIM’S VIOLENT BEHAVIOR?

¶ 16. In his remaining two issues, Clemons argues that he should have been allowed to introduce certain evidence pertaining to Lamen’s character. Specifically, Clemons wanted the jury to hear about Lamen’s alcohol consumption and his violent behavior. The “relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused.” Hentz v. State, 542 So.2d 914, 917 (Miss.1989). In regards to Lamen’s drinking, Clemons asked his brother on cross-examination whether he saw Lamen drink alcohol. The State objected on the grounds that this testimony was not relevant. The trial court agreed finding that information about Lamen was irrelevant. The trial court found that there had already been testimony concerning the abusive nature of the relationship between Lamen and Clemons. Furthermore, Clemons did not make a proffer to show how his father’s drinking was relevant to the murder. We do note that there was other testimony, namely by Clemons himself, where Lamen’s penchant for alcohol was mentioned.

¶ 17. In regards to Lamen’s violent behavior, Clemons asked his mother’s sister if she had an opinion about whether he was a violent person. Clemons was attempting to introduce testimony that Lamen had attempted to rape the woman at some point. The trial court sustained the objection pursuant to M.R.E. 404(a), which limits the admissibility of character evidence. The trial court found that Lamen’s reputation for violence was not relevant since Clemons was not arguing that Lamen was the initial aggressor, which would be allowed under M.R.E. 404(a)(2). The trial court did note that evidence of Lamen’s abuse towards Clemons was already before the jury. We cannot find abuse of discretion by the trial judge in sustaining these objections.

¶ 18. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHO-BA COUNTY.

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


source: Caselaw Access Project

author: CHANDLER, J., for the Court.

license: Public Domain

text:
    Marcus BATES, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00983-COA.
    Court of Appeals of Mississippi.
    March 20, 2007.

      Walter E. Wood, Ridgeland, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   CHANDLER, J., for the Court.

¶ 1. Marcus Bates appeals his conviction of cocaine possession pursuant to Section 41-29-139(c)(l)(B) of the Mississippi Code Annotated (Rev.2005). Officers from the Madison County narcotics unit pulled Bates over in March 2003 for unlit brake lights. After witnessing Bates chewing and swallowing some sort of substance, an officer pulled Bates from the car and the car was searched. “Crumbs” were seen on the driver’s seat, and a “rock” of similar substance was found on the floorboard of the driver’s seat. The rock was later determined to be crack cocaine.

¶ 2. Bates was arrested and charged with possession of narcotics. The passenger in the car was not detained or arrested. After a jury found Bates guilty, he was sentenced to serve eight years as a habitual offender in the custody of the Mississippi Department of Corrections and ordered to pay a fine of $50,000. Bates filed this appeal, arguing:

I. WHETHER THE TRIAL COURT ERRED BY PERMITTING A JURY INSTRUCTION WHICH INCORRECTLY DEFINED CONSTRUCTIVE POSSESSION.
II. WHETHER THE EVIDENCE WAS SUFFICIENT TO PROVE BATES GUILTY BEYOND A REASONABLE DOUBT.
¶ 3. Finding no error, we affirm.

FACTS

¶ 4. On March 3, 2003, drug enforcement officers from the Madison County narcotics unit stopped a vehicle driven by Marcus Bates in Canton, Mississippi. The agents were in an unmarked car and all wore plain clothes. The vehicle was stopped after Lieutenant Randy Tucker noticed through his rearview mirror that the car Bates was driving did not have brake lights. Tucker also recognized Bates from a traffic stop a few days prior, in which Bates was found to be an unlicensed driver and in possession of marijuana.

¶ 5. While Lieutenant Tucker called in the vehicle information to dispatch, Agent Jay Houston approached the driver’s door. Houston observed Bates chewing something and mumbling. Houston thought Bates was trying to dispose of evidence and based on his police experience and training, believed it to be cocaine. In order to preserve the evidence and prevent Bates from ingesting any more, Houston attempted to remove Bates from the vehicle. Bates tried to get away from Houston by hitting the gas pedal and leaning over into the passenger seat. A struggle ensued, whereby Lieutenant Tucker came over to the car and assisted in stopping the vehicle. Fearing that Bates might overdose, the agents sent Bates to the hospital for treatment for the ingested substance.

¶6. After Bates was arrested, the car was searched. White crumbs were found on the driver’s seat and a “rock” was found on the floorboard of the driver’s seat. The substance was later confirmed by the state crime lab to be crack cocaine and entered as evidence at trial.

¶ 7. A passenger, Bobby Brent, was also present in the car with Bates. However, none of the officers remember formally interviewing or searching the passenger. According to one agent’s testimony, Brent claimed no involvement with the drugs. No charges were brought against Brent.

¶ 8. Bates was charged with possession of more than one-tenth grams but less than two grams of cocaine, a controlled substance, based on the drugs found on the floorboard of the car, and not from those allegedly ingested. The official police report did not state the reason for the stop, but officers testified that they had probable cause due to the car’s unlit brake lights. The report also did not include information about Brent, the passenger, but Agent Houston stated that they did not pursue Brent because the drugs were found outside of his “wingspan.” Additional allegations of resisting arrest and being an unlicensed driver were not charged against Bates.

¶ 9. At trial, an employee with the Mississippi Crime Lab reported that the rock tested positive for crack cocaine. Tucker and Houston also testified for the State. Bates did not testify or call any witnesses on his behalf. Bates was convicted by a unanimous jury of possession of cocaine and sentenced to eight years in custody of the Mississippi Department of Corrections as a habitual offender. Bates was also ordered to pay a fine of $50,000.

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED BY PERMITTING A JURY INSTRUCTION WHICH INCORRECTLY DEFINED CONSTRUCTIVE POSSESSION.

¶ 10. Bates argues that jury instruction No. 5 gave an incomplete legal standárd for constructive possession. When reviewing jury instructions, we read the instructions as a whole. Conners v. State, 822 So.2d 290, 292(¶ 5) (Miss.Ct.App. 2001). If the instructions “fairly announce the law of the case and create no injustice, no reversible error will be found.” Id.

¶ 11. Pertinent parts of jury instruction No. 5 read as follows:

Constructive possession may be shown by establishing that the Defendant was aware of the presence and character of the substance; that the substance was subject to Defendant’s intentional and conscious dominion and control and was in close proximity to the Defendant and further that the Defendant was aware of the presence and character of the cocaine and was intentionally and consciously in possession of the cocaine.

¶ 12. Bates claims that the instruction fails to mention that proximity to the drug by itself is not enough to convict a defendant unless incriminating circumstances are also proven. Curry v. State, 249 So.2d 414, 416 (Miss.1971). However, the State argues that this issue is procedurally barred because Bates never requested the additional language.

¶ 13. We do not consider matters on appeal that were not placed first before the trial judge for decision. Duplantis v. State, 708 So.2d 1327, 1339-40(¶49) (Miss.1998). The record indicates that Bates objected to the language of jury instruction No. 5, but on different grounds than the proximity language. Bates did not request any additional proximity language at trial. “When a defendant seeks to assert grounds other than those on which his trial objection was based, it follows that this instance is not reviewable by this Court.” Duplantis v. State, 644 So.2d 1235, 1247 (Miss.1994) (citing Stringer v. State, 279 So.2d 156, 158 (Miss.1973) (“objection on one or more specific grounds constitutes a waiver of all other grounds”)); McGarrh v. State, 249 Miss. 247, 276, 148 So.2d 494, .506 (1963) (“objection cannot be enlarged in reviewing court to embrace omission not complained of at trial”). Therefore, Bates is procedurally barred from raising this issue on appeal.

¶ 14. Notwithstanding the procedural bar, we will discuss the merits of Bates’s argument. Jury instruction No. 5 instructs that the State must prove four different elements for constructive possession: (1) that Bates was aware of and knew the substance to be cocaine; (2) that Bates had intentional and conscious dominion and control over the substance; (3) that the cocaine was in close proximity to Bates; and (4) that Bates knowingly possessed the cocaine. It is unnecessary to state that proximity alone is insufficient, because the instructions clearly state all of the elements required. Therefore, Bates’s argument is without merit.

¶ 15. Bates further claims that jury instruction No. 5 improperly instructed on a presumption of constructive possession because evidence did not establish that Bates was the actual owner of the vehicle. On appeal, Bates argues that the instruction also did not include language stating that the State must prove additional incriminating circumstances to establish constructive possession if the defendant is not the owner of the car. Hamm v. State, 735 So.2d 1025,1031(¶23) (Miss.1999).

¶ 16. The relevant part of the instruction reads, “It need not be actual physical possession. A presumption of constructive possession arises against the person(s) who exercises exlcusive dominion and control over the vehicle within which contraband or [sic] controlled substance is found.” A presumption of constructive possession arises against the owner of premises upon which contraband is found. Pool v. State, 483 So.2d 331, 336-37 (Miss.1986). However, the presumption is re-buttable and “when contraband is found on premises which are not owned by a defendant, mere physical proximity to the contraband does not, in itself, show constructive possession.” Fultz v. State, 573 So.2d 689, 690 (Miss.1990). As such, the State is required to show additional incriminating circumstances to justify a finding of constructive possession. Id.

¶ 17. Bates claims that the testimony was insufficient to prove that he was the owner of the vehicle. However, Agent Houston testified that Bates stated that he was the owner of the vehicle even though the title had not yet been transferred. Bates did not offer any evidence to rebut this testimony. Whether or not Bates was the actual owner of the vehicle was a question for the jury to consider. Therefore, the instruction which established a presumption against the owner of the vehicle was proper. Moreover, when reading the instructions as a whole, language to the effect of proving that Bates had “intentional and conscious” control over the illegal substance was present. Therefore, we find no error in the instruction given.

¶ 18. Further, Bates did not request additional language referring to the State’s burden to prove additional incriminating evidence if Bates was not the owner of the vehicle. Thus, Bates is procedurally barred from raising this issue.

II. WHETHER THE EVIDENCE WAS SUFFICIENT TO PROVE BATES GUILTY BEYOND A REASONABLE DOUBT.

¶ 19. Bates asserts that the State relied on circumstantial evidence to prove its case and that the evidence was insufficient to find him guilty.

¶ 20. Evidence to support a verdict is sufficient when there is competent and credible evidence as to each element of the offense, when taken together with all inferences which reasonably may be drawn from the evidence and considered in the light most favorable to the prosecution, the evidence permits a reasonable juror to find the accused guilty beyond a reasonable doubt. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The State need not provide direct evidence to support a conviction “so long as sufficient circumstantial evidence exists to establish guilt beyond a reasonable doubt.” Neal v. State, 805 So.2d 520, 526(¶ 20) (Miss.2002).

“Circumstantial evidence need not exclude every ‘possible doubt,’ but only every other ‘reasonable’ hypothesis of innocence.” Id.

¶ 21. Our supreme court has spoken regarding possession of narcotics:

What constitutes a sufficient external relationship between the defendant and the narcotic property to complete the concept of “possession” is a question which is not susceptible of a specific rule. However, there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.

Curry v. State, 249 So.2d 414, 416 (Miss.1971). In Sisk v. State, 290 So.2d 608, 610 (Miss.1974),our supreme court held that the State must show by competent evidence that the contraband was subject to the dominion or control of the defendant. The elements of constructive possession may be proven by circumstantial evidence. Martin v. State, 413 So.2d 730, 732 (Miss.1982).

¶ 22. Testimony is undisputed that Bates was the driver of the vehicle. Agent Houston witnessed Bates furiously chewing and swallowing. After Houston asked Bates to open his mouth, Houston saw white residue consistent with the appearance of crack cocaine. As crack cocaine is chewed, Houston stated that the powder turns to a toothpaste-like substance, which is consistent with what he witnessed.

¶ 23. Houston noted from his training and expertise in handling over 400 drug cases that a frequent hiding place for drugs is the mouth and, when caught with contraband, many criminals attempt to swallow the drugs. Houston also noted that “crumbs” were seen in plain view on the seat where Bates had been sitting. A rock of cocaine was later found directly underneath Bates’s leg on the floorboard. Agent Houston testified that Bates admitted to being the owner of the vehicle, but that legal title had not yet passed. The defense offered no evidence to rebut this testimony. The defense also did not call any other witnesses on Bates’s behalf.

¶ 24. Bates asserts that the State failed to offer evidence to rule out the possibility that the passenger Brent could have been the actual possessor of the drugs. However, the officers stated that Brent was not considered to be in possession of the cocaine as a passenger because the drugs found were outside of his reach. In addition, Bates was seen chewing and swallowing what was thought to be the contraband. When Houston told Bates to stop swallowing, Bates hit the accelerator on the car and attempted to get away from Houston by leaning over into the passenger seat. This testimony provided enough evidence for a jury to determine that Bates had constructive possession of the cocaine.

¶ 25. Bates further claims that since he was not the true owner of the vehicle, then he was not presumptively in control of the drugs. We find this argument to be without merit. Even if Bates was arguably not the owner of the car, additional incriminating evidence was properly presented by the State to prove that Bates had constructive possession of the contraband. Without attempting to rebut the evidence presented against him, we can find no error in the jury finding that Bates was in conscious dominion and control of the cocaine.

¶ 26. We are of the opinion that under the disputed facts of this case, there was an issue for the jury as to the guilt of the appellant. All of the facts favorable to the State, together with reasonable inferences, support the verdict of the jury. Therefore, we find Bates’s arguments to be without merit and affirm the lower court’s conviction and sentence.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF POSSESSION OF MORE THAN .1 GRAM BUT LESS THAN 2 GRAMS OF COCAINE AND SENTENCE OF EIGHT YEARS AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $50,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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

      . It is unclear from the record whether charges were filed against Bates after the traffic stop in which he was found to be in possession of marijuana.


author: MYERS, .P.J., for the Court.

text:
    Terrance HILL a/k/a Terence V. Hill a/k/a Tarence Hill, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01763-COA.
    Court of Appeals of Mississippi.
    March 20, 2007.

      Paul M. Luckett, McComb, attorney for appellant.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   MYERS, .P.J., for the Court.

¶ 1. Terrance Hill was convicted in the Circuit Court of Pike County of burglary of an inhabited dwelling, and sentenced to serve a term of twenty-five years in the custody of the Mississippi Department of Corrections, ordered to pay restitution in the amount of $60 to the victim of the burglary and fined $10,000. Following his conviction, Hill moved the lower court to grant him a new trial or, in the alternative, to grant him a judgment notwithstanding the verdict, arguing that insufficient evidence was presented for a conviction. Hill now appeals the lower court’s denial of his post-trial motions, citing the following issue for our review:

¶ 2. Finding no error, we affirm.

I. WHETHER SUFFICIENT EVIDENCE WAS PRESENTED AT TRIAL TO SUPPORT A CONVICTION OF BURGLARY OF A DWELLING?

¶ 3. Hill argues that the lower court erred in allowing his conviction to stand because insufficient evidence was presented at trial to support his conviction. We review a lower court’s denial of a post-trial motion to determine whether there has been an abuse of discretion. Brown v. State, 907 So.2d 336, 339(¶ 8) (Miss.2005). In considering motions challenging a verdict based on the sufficiency of the evidence, a court must ask whether the evidence presented by the prosecution showed “ ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed, and where the evidence fails to meet this test it is insufficient to support a conviction.’ ” Dilworth v. State, 909 So.2d 731, 736(¶ 17) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). “The evidence is viewed in the light most favorable to the State.” Eakes v. State, 665 So.2d 852, 872 (Miss.1995) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). “All credible evidence supporting the conviction is taken as true; the State receives the benefit of all favorable inferences reasonably drawn from the evidence.” Id. “Only where the evidence, as to at least one of the elements of the crime charged, is such that a reasonable and fair-minded jury could only find the accused not guilty, will this Court reverse.” Id. To convict Hill of the crime of burglary of a dwelling in violation of Mississippi Code Annotated section 97-17-23 (Rev. 2006), the prosecution had to prove that Hill committed (1) the unlawful breaking and entering of the dwelling house or inner door of such dwelling house of another (2) with the intent to commit a crime once entry has been gained.

¶ 4. At trial, the State introduced Hill’s written statement and played Hill’s audio recorded statements of guilt, amounting to a confession, for the jury. Hill admitted in his written and taped statement to breaking and entering the Llewellyn’s home, looking for things of value and taking and carrying away jewelry and Christmas presents. Testimony was offered by the prosecution of Amy and Jeremiah Llewellyn, the owners of the burglarized home; John Caron, a local pawn shop owner; responding Officer Scott McKenzie and Detectives James Sparacello and James Cowart. Testimony established that Hill was found in possession of the items stolen from the Lewellyn’s home within an hour of the robbery when he was trying to pawn the stolen goods at Caron’s shop. Caron positively identified Hill in open court as the person who attempted to pawn the stolen items. Considering the evidence in the light most favorable to the State, we find that the lower court did not err in finding that there was sufficient evidence before the jury to convict Hill of burglary of a dwelling.

¶ 5. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, ORDERED TO PAY RESTITUTION IN THE AMOUNT OF $60 TO THE VICTIM AND FINE OF $10,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

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


author: NABERS, Chief Justice. SEE, Justice

text:
    Mike DAVIS et al. v. HANSON AGGREGATES SOUTHEAST, INC., et al. Hanson Aggregates Southeast, Inc. v. City of Opelika et al. Oldcastle Materials Southeast, Inc. v. City of Opelika et al.
    1040857, 1040940, and 1040945.
    Supreme Court of Alabama.
    June 9, 2006.
    Rehearing Denied Aug. 18, 2006.

      Charles E. Vercelli, Jr., of Vercelli & Associates, P.C., Montgomery; and James B. Sprayberry, Auburn, for Mike Davis et al.
    Guy F. Gunter III of Melton, Gunter & Melton, Opelika, for City of Opelika and City of Opelika Utilities Board.
    Stanley A. Martin, Opelika, for Lee County.
    James A. Byram, Jr., and Paul A. Clark of Balch & and Bingham, LLP, Montgomery; and H. Wayne Phears of Phears & Moldovan, Norcross, Georgia, for Hanson Aggregates Southeast, Inc.
    Phillip E. Adams, Jr., and Patrick C. Davidson of Adams, Umbach, Davidson & White, LLP, Opelika, for Oldcastle Materials Southeast, Inc.
    W.F. Horsley and Joshua J. Jackson of Samford & Denson, LLP, Opelika, for the Young and Gilmer defendants.
   NABERS, Chief Justice.

These three appeals are from two judgments' — one entered on a jury verdict, the other a summary judgment. In case no. 1040857, we affirm in part, reverse in part, and remand. In cases no. 1040940 and no. 1040945, the cross-appeals from the judgment entered on the jury verdict, we affirm.

I. Facts and Procedural History

Hanson Aggregates Southeast, Inc. (“Hanson”), operated, and Oldcastle Materials Southeast, Inc. (“Oldcastle”), now operates, a quarry in Lee County. The plaintiffs include approximately 70 residents of Lee County, as well as the City of Opelika (“the City”), the City of Opelika Utilities Board (“the Utilities Board”), and the Beauregard Water Authority. In addition to Hanson and Oldcastle, the defendants at trial included members of the Gilmer and Young families, who owned the land on which the quarry is located. The Gilmer and Young defendants have since been dismissed from the action, and the plaintiffs do not challenge the dismissal.

The quarry allegedly damaged the plaintiffs and their property by emitting noise, dust, vibration, and pollution; dewatering the subsoil; and causing sinkholes to form in the area. The plaintiffs sued on theories of public and private nuisance, trespass, negligence, and wantonness. They also sought a permanent injunction to prevent the defendants from continuing to operate the quarry.

Because of the number of plaintiffs and the complexity of the case, the parties and the trial court sought to break the action into separate trials pursuant to Rule 42(b), Ala. R. Civ. P. The two sides submitted competing trial plans, each of which recommended separating the plaintiffs into groups and holding a separate trial for each group.

The first group of plaintiffs tried their claims to a jury in August and September 2004. This group included the City, the Utilities Board, and 18 individual plaintiffs (collectively “the trial plaintiffs”). In relevant part, the jury found that 1) the quarry was not a nuisance; 2) Hanson and Oldcastle had operated the quarry negligently; and 3) Oldcastle had committed a trespass. The jury returned a verdict awarding damages to 5 of the 18 individual plaintiffs. The jury also returned a verdict stating that the City and the Utilities Board had met their burden of proof with respect to both Hanson and Oldcastle, but awarding those plaintiffs no damages. Finally, the trial court concluded that the verdict for the defense on the nuisance claim precluded it from considering the plaintiffs’ request for an injunction.

Hanson and Oldcastle then moved for a judgment as a matter, of law or for a remittitur of the damages award; the plaintiffs moved for a new trial or an addi-tur. On February 1, 2005, the trial court denied both motions and entered a judgment on the jury’s verdict.

The second trial was scheduled for April 2005. Before that trial took place, however, Hanson and Oldcastle moved for a summary judgment. They argued that because the jury in the first trial found that the quarry was not a nuisance, the nuisance claims of the remaining plaintiffs and injunctive relief as to the remaining plaintiffs were barred by the doctrines of res judicata and collateral estoppel.

The trial court agreed. On March 7, 2005, it entered a partial summary judgment for Hanson and Oldcastle:

“The claims of the remaining plaintiffs that the quarry is a public nuisance due to noise, dust, blasting, and/or dewater-ing, based on quarry operations up to and including the August 2004 trial of this case, are barred. The claims of the remaining plaintiffs for injunctive relief, based on quarry operations up to and including the August 2004 trial of this case, are barred. The claims of the remaining plaintiffs, to recover money damages for specific injury to their person or property based on quarry operations are not barred.”

(Emphasis in original.) The trial court certified both the judgment entered on the jury’s verdict in the first trial and the summary judgment as final under Rule 54(b), Ala. R. Civ. P. The plaintiffs appealed, and Hanson and Oldcastle cross-appealed.

II. Analysis

On appeal, the plaintiffs challenge both the jury verdict and the summary judgment. First, the trial plaintiffs argue that part of the jury’s verdict was contrary to the evidence; we afford that verdict the typical presumption of correctness. SouthTrust Bank v. Donely, 925 So.2d 934, 943 (Ala.2005). The second issue — the trial court’s decision to exclude certain evidence — we review only to determine if in excluding the evidence the trial court exceeded its discretion. Bowers v. Wal-Mart Stores, Inc., 827 So.2d 63, 71 (Ala.2001). The remaining issues are questions of law, which we review de novo. E.g., Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).

A. Issues Arising from the First Trial

1. Verdict against the individual plaintiffs

The jury found that Hanson and Oldcas-tle were not liable to any of the individual plaintiffs except the members of the Parker family and the Schwieker family, comprising 5 individuals. The remaining 13 individual plaintiffs argue that these findings were inconsistent and contrary to the great weight of the evidence.

This Court will not disturb a jury’s verdict unless “the evidence against the verdict is so much more credible and convincing to the.mind than the evidence supporting the verdict that it clearly indicates that the jury’s verdict was wrong and unjust.” Campbell v. Burns, 512 So.2d 1341, 1343 (Ala.1987). Moreover, “ ‘denial of a motion for a new trial strengthens the presumption of correctness afforded to a jury verdict.’ ” Keibler-Thompson Corp. v. Steading, 907 So.2d 435, 440 (Ala.2005)(quoting Bowers, 827 So.2d at 73).

The plaintiffs have failed to show that the jury’s verdict as to these remaining 13 plaintiffs should be set aside. A reasonable jury could have concluded from the evidence that the Parkers and the Schwiekers were damaged by Hanson and Oldcastle’s actions, but that the other 13 individual plaintiffs were not. The verdict as to these remaining 13 plaintiffs was not plainly wrong or unjust, and it must stand.

2. Verdict in favor of the City and the Utilities Board on the negligence claim

With respect to the City and the Utilities Board, the jury found Hanson and Oldcastle liable for negligence but awarded no damages. The City and the Utilities Board argue that this verdict is inconsistent and requires a new trial. We agree.

Damages are an essential element of the tort of negligence. “ ‘ “[Pjroof of damage [is] an essential part of the plaintiffs case.” ’ ” Ex parte Stonebrook Dev., L.L.C., 854 So.2d 584, 589 (Ala.2003)(quoting Matthews Bros. Constr. Co. v. Stonebrook Dev., L.L.C., 854 So.2d 573, 578 (Ala.Civ.App.2001), quoting in turn William C. Prosser, Handbook of the Law of Torts § 30 (4th ed.1971)). As a result, a finding that a defendant is liable to a plaintiff for negligence is inconsistent with an award of no damages.

“The jury’s finding for each of the Plaintiffs, which is clear and unequivocal, necessarily embraced all of the elements of the tort claim, including the element of injury and resultant damages. To so find, and then award no damages, is inconsistent on its face as a matter of law.
“[This] compels a decision that the trial court should have afforded Appellants a new trial on the basis of the inadequacy of the award, or, as we see it, the inconsistency of the award of no damages, when such award is juxtaposed with the jury’s finding of Defendants’ liability.”

Stinson v. Acme Propane Gas Co., 391 So.2d 659, 661 (Ala.1980); accord Thompson v. Cooper, 551 So.2d 1030, 1030 (Ala.1989); Moore v. Clark, 548 So.2d 1352 (Ala.1989); and Clements v. Lanley Heat Processing Equip., 548 So.2d 1345 (Ala.1989).

Hanson and Oldcastle do not concede that the verdict for the City and the Utilities Board was inconsistent. However, they fail to present any substantial argument that this Court should not apply the Alabama rule on inconsistent verdicts in this case. Instead, in their argument they assume an inconsistent verdict but maintain that the inconsistency does not require reversal. The focus of Hanson and Oldcastle’s argument that the verdict does not require a reversal is that the City and the Utilities Board either 1) invited the error of an inconsistent verdict, 2) consented to the inconsistent verdict, or 3) waived their right to challenge the verdict.

Immediately following the verdict, the trial court noted the possibility that the verdict was inconsistent. The parties and the court then discussed how the verdict could be corrected. This began with the following exchange:

“Trial court: On the two verdict forms to the City of Opelika and the Utilities] Board where they found in favor of the Plaintiff and awarded zero [damages], I would consider that an award of nominal damages. Do you want any clarification from the jury on that point?
“Mr. Vercelli [counsel for the City and the Utilities Board]: I think it’s inconsistent to award nothing and find them liable. I think nominal damages should have been awarded. So, yes.”

(Emphasis added.) At this point, it is clear that counsel for the City and the Utilities Board wanted clarification from the jury on the inconsistent verdict. The colloquy continues:

“Trial court: Well, what I am asking is: Do y’all agree — that—that’s what I would think. I can — I can come back and recharge them on the nominal damage[s] charge that was presented by Hanson and — and just see what they come up with, or I can just plain ask them if that was your intent in front of everyone. Or y’all can just accept it as an award of nominal damages and — just let them go.
“Mr. Byram [defense counsel]: We are satisfied.
“Mr. Adams [defense counsel]: Satisfied.
“Mr. Denson [defense counsel]: Satisfied.
“Mr. Vercelli: Which means what?
“Trial court: That they are agreeing that it’s an award for nominal damages. I mean, essentially it would be the same thing as saying they awarded one dollar. “Mr. Vercelli: Is that what the defendants are saying? That they agree it would be the same as awarding a dollar? “Mr. Adams: Well, what is the — what is the Plaintiffs’ response, Your Honor, to the verdict? I don’t know that there is a procedure by which the Defendant gets to be asked questions by Plaintiffs’ counsel.
“Trial court: Well, there is — there is— “Mr. Adams: We are saying that we are satisfied with the verdict and — as recorded and as explained by the Court. “Trial court: All right.
Mr. Vercelli: It appears to me to be an inconsistent verdict. I don’t see how they can award zero and find them at fault and then award nothing.”

(Emphasis added.) It is clear that to this point, the City and the Utilities Board have not invited the court to do anything, consented to the verdict, or waived any objection to the verdict.

The colloquy then turned to whether the jury’s verdict was based on a finding of nuisance or of negligence. Defense counsel stated that the jury had found that the quarry created a nuisance. In fact, the jury had indicated by special interrogatory that its verdict was based on negligence.

“Mr. Byram: It’s a claim for public nuisance.
“Trial court: Well, that would be my interpretation, that they found that the burden of proof was met; they just didn’t award any damages....
“Mr. Vercelli: So that is a finding of public nuisance; we would be satisfied with nominal damages.
“Trial court: Okay. If y’all are satisfied, I will bring [the jury] back in and let them go.”

Here, the City and the Utilities Board agreed that the verdict could be interpreted as one awarding nominal damages, and therefore valid, but only if it was based on a theory of nuisance. Hanson and Oldcas-tle argue that the City and the Utilities Board then “chose to accept the verdict” and “prompted the court to accept the verdicts and discharge the jury.” The record, however, does not support this conclusion. The conference continues:

“Mr. Vercelli: Smith and Schwieker appear inconsistent.[] I guess negligence is what it is.
“Trial court: Hum?
“Mr. Adams: That’s a verdict on negligence.
“Mr. Vercelli: We will talk about it post-trial.
“Trial court: Yes, I mean—
“Mr. Adams: That’s a verdict on the negligence—
“Mr. Byram: Yes, I would. I may have misspoke, too. It’s the negligence one that’s checked here.
“Mr. Adams: — theory, Your Honor. “Trial court: Correct.
“Mr. Adams: That’s right.
“Trial court: Okay. Bring [the jury] in.”

At that point, the trial court discharged the jury. Contrary to Hanson and Oldcas-tle’s assertion, the City and the Utilities Board did not express satisfaction with an inconsistent verdict on their negligence claim. Nor did they “prompt” the trial court to discharge the jury.

The record indicates that counsel for the City and the Utilities Board, defense counsel, and the trial court all understood that if the verdict was based on negligence (as opposed to nuisance), it was inconsistent, and some corrective action was necessary. The trial court suggested three ways to resolve the inconsistency: 1) recharge the jury, 2) poll the jury in open court, or 3) have the parties agree to treat the verdict as one for nominal damages. The trial court was trying to fix the problem created by the inconsistent verdict, and counsel for the City and the Utilities Board insisted that there was a problem. In the ensuing confusion, for which the City and the Utilities Board cannot be held responsible, the jury was discharged without any of the court’s proposed solutions having been put in place.

The only statement that even comes close to an agreement by the City and the Utilities Board to discharge the jury is Mr. Vercelli’s statement that “[w]e will talk about it post-trial.” This statement, however, cannot be characterized as a waiver of the right to challenge an inconsistent verdict. Instead, the statement declared that the City and the Utilities Board were not abandoning the issue but would raise it in a later motion.

We conclude that the City and the Utilities Board did not consent to an inconsistent verdict or invite the court to commit error and that their motion for a new trial was sufficient to preserve the inconsistent-verdict issue for review. The trial court erred in denying that motion, and the City and the Utilities Board are entitled to a new trial on their negligence claim.

3. Evidentiary rulings

The trial plaintiffs argue that the trial court erred by excluding four pieces of evidence:

“This evidence included (1) testimony, with supporting documentation by the Lee County Engineer, Neal Hall, that the County was required to spend a quarter of a million dollars to repair less than 1,000' of one road that was damaged by the quarry, (2) testimony from Mr. Hall that the bridge over the Little Uchee Creek, which was within a few hundred feet of multiple large sinkhole collapses in the Little Uchee and on or near the Spring Villa Road right-of-way, could fail if a sinkhole developed on one of its supports, (3) testimony from a qualified civil engineer, Derek Barren-tine, that if a sinkhole formed under the Dixie LP Gas Pipeline, then due to the weight of the earth above and the pipeline itself, the pipeline sag and crack [sic], causing an explosion, and (4) testimony and supporting documentary evidence (in the form of a certified ADEM [Alabama Department of Environmental Management] record) that the quarry intended to increase pumping from 4.5 mgd to 10 mgd.”

(Brief of Appellants at pp. 62-63.)

The objections to the exclusion of items (2), (3), and (4) have not been properly preserved for review. The record shows that the trial plaintiffs failed to present the substance of item (2) to the trial court. As to item (3), Derek Barren-tine, a civil engineer, was to testify about what might have happened if a sinkhole appeared near the liquified-petroleum gas pipeline. The trial court stated that it would allow this testimony “as far as the injunctive relief portion of the case.” The trial plaintiffs’ counsel responded: “And that’s all we have — that’s the only reason we are offering it.” Because the question of injunctive relief was to be decided (if necessary) by the court, not the jury, this statement by plaintiffs’ counsel waived any objection to the trial court’s decision to keep that evidence from the jury. Finally, the trial plaintiffs have failed to identify the testimony or documents constituting item (4). As a result, our analysis is limited to whether the trial court exceeded its discretion by excluding the testimony of Neal Hall, the county engineer for Lee County, about the road-repair expenses Lee County would incur as a result of the quarry’s operation.

According to the trial plaintiffs’ brief, the trial court kept Hall’s testimony from the jury because 1) Lee County was not a party to the litigation, and 2) evidence of a non-party’s expenditures might confuse the jury on the issue of damages. A trial court has discretion to exclude otherwise admissible evidence in order to avoid misleading the jury. Rule 403, Ala. R. Evid. The trial plaintiffs’ con-clusory response — that “such problems were either nominal or could have been resolved by an appropriate instruction rather than not admitting the evidence”— is insufficient to show that the trial court exceeded that discretion. The trial plaintiffs’ arguments regarding the exclusion of evidence do not require a new trial.

A Injunctive relief

Finally — and despite the jury’s verdict that the quarry was not a nuisance' — 'the trial plaintiffs argue that the trial court erred by failing to enjoin the quarry’s continued operation. They cite City of Birmingham v. City of Fairfield, 375 So.2d 438 (Ala.1979), and McClung v. Louisville & Nashville Ry., 255 Ala. 302, 51 So.2d 371 (1951), as examples of cases in which “this Court has previously held that a finding of negligence can support injunctive relief.”

Both City of Birmingham and McClung support the proposition that “a nuisance may result from acts or omissions that constitute negligence.” City of Birmingham, 375 So.2d at 441. Neither case, however, stands for the proposition that a trial court may enjoin conduct that does not constitute a nuisance.

In this case, the factual issue whether the quarry was a nuisance was inextricably linked with the plaintiffs’ request for in-junctive relief. See Wootten v. Ivey, 877 So.2d 585, 589 (Ala.2003). Because the jury found no nuisance, the trial court properly refused to consider whether the trial plaintiffs were entitled to an injunction.

B. Issues Arising from the Summary Judgment

In the first trial, the jury found that the quarry did not constitute a nuisance. The trial court then ordered that the claims of all the remaining plaintiffs alleging a public nuisance and/or seeking injunctive relief were barred. The remaining plaintiffs argue that this order deprived them of their day in court on those issues; Hanson and Oldcastle respond that the trial court’s order is justified either under the doctrine of res judicata or collateral estoppel or because of an agreement between the parties.

Res judicata bars relitigation of a claim only in a subsequent action. Interstate Truck Leasing, Inc. v. Bender, 608 So.2d 716, 718 (Ala.1992), overruled on other grounds, State Farm Fire & Cas. Co. v. Owen, 729 So.2d 834 (Ala.1998). When a case is divided into separate trials pursuant to Rule 42, Ala. R. Civ. P., those trials remain part of a single action and the doctrine of res judicata does not apply to the later trials. 608 So.2d at 718.

Neither does collateral estoppel apply:

“[S]ince separate trials do not individually produce final judgments, any attempt to apply collateral estoppel to the remaining ... trials would be invalid under a Rule 42(b) regime.”

Acevedo-Garcia v. Monroig, 351 F.3d 547, 560 (1st Cir.2003). The approach in Acevedo-Garcia is consistent with our approach in Interstate Truck Leasing, as well as with hornbook law stating that collateral estoppel bars relitigation “in a subsequent action.” Restatement (Second) of Judgments § 27; see also 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d § 2387 (1995)(“Rule 42(b) allows the court to order a separate trial of any claim.... Separate trials usually will result in one judg-ment_”).

As a result, in a single action involving separate trials under Rule 42(b), Ala. R. Civ. P., a result in one trial will typically not be binding on parties not involved in that trial, absent an agreement of the parties or an order of the court. In this regard, Hanson and Oldcastle argue that all the plaintiffs agreed to be bound by the jury’s verdict in the first trial as to whether the quarry constituted a public nuisance. The parties, with the trial court’s approval, certainly could have agreed to structure the case that way. The trial court, by order, could also have so structured -the case. However, the record does not reveal such an agreement or order.

During pretrial conferences, the parties made a number of statements concerning what effect a verdict in the first trial might have on subsequent trials. Interestingly, the parties’ pretrial positions were essentially the opposite of their positions on appeal: the plaintiffs suggested that the first trial might have a preclusive effect on subsequent trials, and Hanson disagreed (Oldcastle had not yet been joined as a defendant). The parties were unable to agree, and these statements thus amount to nothing more than ideas about how the case might have been tried.

The parties also submitted competing written trial plans. The plaintiffs’ proposed trial plan summarizes the scope of the first trial as follows:

“1. Plaintiffs will identify 6-8 families as Parties Plaintiff to the first trial. In addition, the City of Opelika, the Opelika Utilities Board, and the Beauregard Water Authority[] will be Plaintiffs during the first trial. Therefore, the jury will only have to consider the claims of between 9 and 11 Plaintiffs rather than 61
“4. The jury would be informed that another 20 families have the same or similar claims, that those families [sic] claims will be tried separately, and that some of those homeowners would be allowed to testify — especially those that have complained in writing or in person to Hanson.”

(Emphasis added.) Hanson’s proposed trial plan stated:

“Hanson submits that plaintiffs’ attorneys should select one family unit from each geographic area and that the defendants’ attorneys jointly should select one family unit from each geographic area for trial of their damages and in-junctive relief claims based on quarry operations (noise, dust, blasting). Thus, the first trial would resolve the claims of six of the 27 family units. The results in this first trial would serve as a benchmark for the possible resolution of the quarry operations claims of the remaining individual plaintiffs. As stated, there would be little, if any overlap between the two phases.”

(Emphasis added.) Neither of the proposed trial plans shows an agreement to bind all plaintiffs in subsequent trials to the verdict in the first trial. According to the plaintiffs’ plan, the jury would consider the claims of between 9 and 11 plaintiffs; the claims of the remaining plaintiffs would “be tried separately.” According to Hanson, the jury would hear the claims of six “family units,” leading to “possible resolution” of the remaining claims.

The parties failed to agree on how the case should proceed, and the trial court entered the following scheduling order:

“Regarding the Proposed Trial Plan submitted by the parties, it is the Court’s decision that the Water Authorities along with (6) other Plaintiffs’ cases will be tried in July. The parties are to meet and determine whether or not they can agree as to which six (6) individual Plaintiffs should be tried at that time.”

This order did nothing more than identify which plaintiffs would participate in the first trial. It did not state that the first trial would dispose of all public-nuisance claims; nor did it state that any other plaintiff would be bound by any part of the result of the first trial. Because the trial court’s scheduling order “shall control the subsequent course of the action unless modified by a subsequent order,” Rule 16(e), Ala. R. Civ. P., Hanson and Oldcas-tle’s argument — that plaintiffs who did not participate in the first trial are bound by the verdict in that trial finding that the quarry is not a nuisance — is unpersuasive. That verdict cannot bar the nuisance claims of the remaining plaintiffs, and the summary judgment therefore must be reversed.

C. Statutory Damages Under § 33-7-1

Finally, the plaintiffs have asked the Court to provide “guidance” on the correct measure of damages under § 33-7-4, Ala.Code 1975. They concede, however, that “this cause of action was dropped from the 2004 trial.” Although the plaintiffs argue that the issue will inevitably arise in a future trial, it is not now ripe for review.

III. Conclusion

Because the jury’s verdict on the negligence claim was inconsistent as to the City and the Utilities Board, in case no. 1040857 we reverse the judgment as to those plaintiffs, but only on the negligence claim. In all other respects, the judgment entered on the jury’s verdict is affirmed. We also reverse the summary judgment in favor of Hanson and Oldcastle. The case is remanded for further proceedings consistent with this opinion. In cases no. 1040940 and no. 1040945, Hanson and Oldcastle’s cross-appeals, we affirm.

1040857 — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

1040940 — AFFIRMED.

1040945 — AFFIRMED.

LYONS, HARWOOD, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

SEE, J., concurs specially.

SEE, Justice

(concurring specially).

I concur in the main opinion.

I write specially to note that in this proceeding, broken into separate trials pursuant to Rule 42(b), Ala. R. Civ. P., the parties disagreed as to whether they intended the first trial to have a preclusive effect on claims or issues that arose in the second trial, and the trial court did not resolve that disagreement before the first trial. The trial court can provide in a Rule 42(b) proceeding that the resolution of certain issues in a first trial will preclude litigation of those issues in a subsequent trial; however, I believe that it must do so in accord with the admonition in Rule 42(b) that an order of separate trials must “always preserv[e] inviolate the right of trial by jury as declared by Article 1, Section 11 of the Alabama Constitution of 1901.” For this reason, the understanding that a first trial will be binding on participants in a subsequent trial who were not participants in the first trial must be clear. See Dodge v. Cotter Corp., 203 F.3d 1190, 1200 (10th Cir.2000) (“If the parties intended to bind subsequent litigation with the results of prior test trials, the record must clearly memorialize that agreement. Their failure to do that here leaves important substantive rights at the mercy of trial tactics.”), and In re TMI Litig., 193 F.3d 613, 725 (3d Cir.1999) (“However, absent a positive manifestation of agreement by Non-Trial Plaintiffs, we cannot conclude that their Seventh Amendment right is not compromised by extending a summary judgment against the Trial Plaintiffs to the nonparticipating, non-trial plaintiff.”).

When there is a reasonable basis for dispute as to whether there was a clear pretrial understanding as to the effect of the first trial on a later trial, and, if there was, as to the nature of that understanding, this Court should, I believe, give proper deference to the trial judge. Here the trial judge concluded, in relevant part:

“The claims of the remaining plaintiffs that the quarry is a public nuisance due to noise, dust, blasting, and/or dewater-ing, based on quarry operations up to and including the August 2004 trial of this case, are barred. The claims of the remaining plaintiffs for injunctive relief, based on quarry operations up to and including the August 2004 trial of this case, are barred. The claims of the remaining plaintiffs, to recover money damages for specific injury to their person or property based on quarry operations are not barred.”

(Emphasis in original.) Thus, if there were a reasonable basis for dispute as to whether there was a clear understanding and as to what that understanding was, I would give due weight to the conclusion of the trial judge that the first trial was to have had a preclusive effect on the claims asserted in the second trial. However, I agree with the characterization of the record as it is presented in the main opinion' — 'that there was actual disagreement between the parties and that the trial judge did not resolve that disagreement before the first trial. Therefore, in light of the admonition of Rule 42(b) that the right to trial by jury be preserved, I concur in the main opinion.

      . Hanson operated the quarry until July 2003; Oldcastle has operated the quarry from July 2003 to the present-.

      . Hanson and Oldcastle cross-appealed in cases no. 1040940 and no. 1040945. However, after reviewing the issues as framed by the appellants in case no. 1040857, they have chosen not to pursue those cross-appeals. (Joint Brief of Hanson and Oldcastle at p. 3.)

      . For example, the jury could have believed the Parkers' and the Schwiekers' testimony, but disbelieved testimony from the other individual plaintiffs. There was also evidence that the damages claimed by some of the individual plaintiffs were not caused by the quarry. For example, Mike Broadwater testified that he was damaged by dust from the quarry. However, he admitted that he had an unusual sensitivity to dust as a result of a double lung transplant. Broadwater also testified that blasting at the quarry caused cracks in his house. However, he admitted that this house was more than 50 years old and that concrete can crack from normal wear and tear. A reasonable juror could have concluded from this evidence that the quarry was not the proximate cause of any of Broad-water’s injuries.

      . This was a separate objection to an alleged inconsistency between the finding of liability with respect to members of the Schwieker family (as discussed in part II.A.l), but no liability with respect to members of the Smith family.

      . The City and the Utilities Board were permitted to raise this issue in a motion for a new trial:
      “Appellants' asserted objection [on inconsistency] is not grounded on the 'form/ 'irregularity,' or 'informality' of the verdict; rather, it is grounded on the ‘inadequacy’ or 'inconsistency' thereof. Likewise, Appellants' failure 'to object' is not within the purview of Appellees' cited authority and did not constitute nonfeasance on Appellants' part. Appellants’ challenge to the jury’s verdict on grounds of ‘inadequacy’ and 'inconsistency' was properly made in their motion for a new trial.”

        Stinson, 391 So.2d at 662.

      . At trial, Neal Hall, the county engineer for Lee County, was asked if sinkholes could "cause concern about the safety of that bridge.” Defense counsel immediately objected, and the trial court sustained the objection. The trial plaintiffs failed to proffer how Hall would have answered the question. "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected and ... the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.” Rule 103(a)(2), Ala. R. Evid.

      . Acevedo-Garcia applied Rule 42(b), Fed. R.Civ.P. Rule 42(b), Ala. R. Civ. P., is identical to the federal rule.

      . The Beauregard Water Authority was not one of the plaintiffs in the first trial.

      . It appears that the court meant six families, as opposed to six individuals. The reference to the “Water Authorities” seems to be a reference to the City and the Utilities Board. The Beauregard Water Authority was not included in the first trial.

      . At oral argument before this Court, counsel for Oldcastle argued that without preclusion of the nuisance claims and injunctive relief, Oldcastle may face a number of separate trials, each of which would subject it to the possibility of injunctive relief. Of course, the decision to grant or deny injunctive relief is in the discretion of the trial court. Should a future jury find that the quarry is a nuisance, it will be up to the trial court to determine whether injunctive relief is appropriate.

      . Consolidation “does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another.” Johnson v. Manhattan Ry., 289 U.S. 479, 496-97, 53 S.Ct. 721, 77 L.Ed. 1331 (1933) (footnote omitted).


author: SEE, Justice.

text:
    Dustin Scott SMITH, Gail Smith, and Larry Smith v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    1041960.
    Supreme Court of Alabama.
    July 21, 2006.

      Patrick M. Lavette of Davenport & La-vette, P.C., Birmingham, for appellants.
    Ronald G. Davenport of Rushton, Stakely, Johnston & Garret, P.A., Montgomery, for appellee.
   SEE, Justice.

This is an underinsured-motorist case. Dustin Scott Smith, Gail Smith, and Larry Smith appeal from a summary judgment in favor of State Farm Mutual Automobile Insurance Company (“State Farm”). We reverse and remand.

I. Facts and Procedural History

On May 30, 2002, 18-year-old Dustin Smith was severely injured in an automobile accident in Chilton County. James Arant was driving the automobile, and Dustin was a passenger. The parties agree that Arant is liable for the accident; Arant is an underinsured motorist. Dustin’s spine was fractured in the accident. Because of his brittle-bone disease, the injury has not healed well, and he continues to suffer physically.

On September 4, 2002, Dustin sued Ar-ant and State Farm, asserting tort claims against Arant and claims for underin-sured-motorist benefits against State Farm. At the time of the accident, Dustin’s parents, Gail Smith and Larry Smith, owned seven cars, each insured with State Farm under separate policies. Each policy provided for underinsured-motorist coverage. Six of the policies were issued by a State Farm office in Pelham, Alabama (“the Alabama policies”). However, the insurance policy covering Gail’s Jaguar automobile was issued by a State Farm office in Destín, Florida (“the Florida policy”). Dustin claimed underinsured-motorist benefits under the Alabama policies and the Florida policy. State Farm counterclaimed against Dustin, seeking a judgment declaring that the Alabama policies could not be stacked with the Florida policy. State Farm added Gail Smith and Larry Smith as counterclaim defendants.

The parties do not dispute that each Alabama policy contained underinsured-motorist coverage of $20,000 for a single injury and that the six policies can be “stacked” for a total of $120,000 in under-insured-motorist benefits. The Florida policy provides underinsured-motorist benefits of $500,000. However, the Florida policy contains a provision prohibiting it from being “stacked” with other insurance.

The Smiths reside in Chilton County, Alabama. In 2000, the Smiths bought a second house in Destín, Florida (“the Florida house”), to use on weekends and vacations. After they purchased the Florida house, the property tax on the Florida house increased. The Smiths learned that the property tax would decrease if one of the Smiths were to establish his or her domicile in Florida and take advantage of the homestead exemption on the Florida house. In an effort to establish domicile in Florida, Gail decided to obtain a Florida driver’s license and to register her Jaguar in Florida.

In August 2001, Gail surrendered her Alabama driver’s license and obtained a Florida driver’s license. Because Gail needed to insure her car in Florida before she registered it in Florida, she visited a State Farm office in Destín, Florida, to switch the insurance coverage for her Jaguar from insurance issued in Alabama to insurance issued in Florida. Gail states that she explained to the State Farm representative that she was trying to lower the property tax on the Florida house and that her primary residence was in Alabama. Gail gave the agent the address for the Florida house, but she says that she asked that State Farm mail her policy, premium notices, and other correspondence to her primary mailing address in Thorsby, Alabama.

Evidence indicates that the State Farm representative communicated with Gail’s State Farm agent in Pelham, Alabama, and learned about the Smiths’ insurance policies on their house in Alabama and on their six other' cars. Based on that information, the Florida State Farm office determined that Gail’s insurance policy on the Jaguar qualified for “multi-vehicle” and “multi-line” discounts.

State Farm sent a renewal notice on the Florida policy for the period of January 16, 2002, to July 16, 2002, to Gail’s mailing address in Alabama. On or about December 31, 2001, Gail paid the premiums to renew the Florida policy for that period.

On January 4, 2002, approximately five months before Dustin’s accident, Gail sued Larry for a divorce. It appears that Gail stayed at the Florida house for two weeks immediately after serving the divorce papers; however, she resided primarily at the couple’s Alabama house from mid-January 2002 until late 2003. Gail’s Jaguar was principally garaged in Alabama during that time. Gail testified at her deposition that she continued her residence at the Smiths’ Alabama house (1) to attempt to reconcile with Larry, (2) to devote attention to Dustin’s drug-related problems, and (3) to continue her work, which was in Alabama. Both Larry and Gail testified at their depositions that, at the time of Dustin’s accident in May 2002, Gail had been living primarily in Alabama and that her Jaguar was primarily garaged in Alabama.

In the trial court, State Farm and the Smiths did not dispute that Arant was liable for the accident and that the amount necessary to cover the injuries Dustin sustained in the accident exceeded $645,000. State Farm contended, however, that Dustin could receive either the underinsured-motorist benefits under the Florida policy, i.e., $500,000, or the underinsured-motorist benefits under the Alabama policies, stacked, i.e., $120,000. The parties agreed that, if Dustin could not stack the Alabama policies with the Florida policy, then Dustin would choose to receive the underin-sured-motorist benefits under the Florida policy. Thus, the parties stipulated (1) that State Farm would pay Dustin $500,000, and (2) that the parties would litigate whether Dustin could also receive underinsured-motorist benefits of $120,000 under the Alabama policies. The parties filed cross-motions for a summary judgment on the stacking issue.

The trial court initially entered a summary judgment in State Farm’s favor without explicitly ruling on the Smiths’ motion. The Smiths moved the trial court to alter, amend, or vacate its summary judgment in favor of State Farm pursuant to Rule 59, Ala. R. Civ. P. After a hearing, the trial court entered an order again granting State Farm’s summary-judgment motion and explicitly denying the Smiths’ motion for a summary judgment. The Smiths appeal.

II. Standard of Review

We review the trial court’s grant or denial of a summary-judgment motion de novo, and we use the same standard used by the trial court to determine whether the evidence presented to the trial court presents a genuine issue of material fact. Bockman v. WCH, L.L.C., 943 So.2d 789 (Ala.2006). Once the summary-judgment movant shows there is no genuine issue of material fact, the nonmovant must then present substantial evidence creating a genuine issue of material fact. Id. “We view the evidence in the light most favorable to the nonmovant.” 943 So.2d at 795.

We review questions of law de novo. Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330 (Ala.2006).

III. Analysis

The Smiths argue that § 32-7-23, Ala. Code 1975, a part of the Alabama Motor Vehicle Safety-Responsibility Act, is applicable to the Florida policy and, therefore, that the underinsured-motorist coverage provided by the Florida policy can be “stacked” with the underinsured-motorist coverage in the Alabama policies. Viewing the facts most favorably to the Smiths, we agree with the Smiths’ argument, and we reverse the summary judgment in favor of State Farm.

State Farm would have us apply Florida’s conflict-of-laws rules. However, State Farm offers no Alabama authority indicating that an Alabama court must apply Florida’s conflict-of-laws rules to a case filed in Alabama that involves insurance coverage for an accident that occurred in Alabama. We apply our own conflict-of-laws rules to determine whether, substantively, the Alabama Motor Vehicle Safety-Responsibility Act applies to the Florida policy. See Taylor v. Tennessee Farmer’s Mut. Ins. Co., 659 So.2d 30 (Ala.1995) (reviewing the facts of the case to determine that Alabama law, not Tennessee law, applies in determining the available underin-sured-motorist benefits without reviewing whether Tennessee conflicts law applies); Best v. Auto-Owners Ins. Co., 540 So.2d 1381, 1381-83 (Ala.l989)(stating that the conflict-of-laws issue was presented in underinsured-motorist-coverage case, and, without reference to South Carolina’s conflicts law, holding that Alabama substantive law did not apply); Cotton v. State Farm Mut. Auto. Ins. Co., 540 So.2d 1387 (Ala.l989)(reviewing the facts of the case to determine that Tennessee law, not Alabama law, applies in determining the un-derinsured-motorist benefits, without referring to Tennessee conflict-of-laws rules).

Generally, we apply the substantive rule of the state in which the insurance contract is formed. See Cotton, 540 So.2d at 1388 (citing Davis v. Hartford Ins. Co. of Illinois, Inc., 456 So.2d 302 (Ala.1984), and American Interstate Ins. Co. of Georgia v. Holliday, 376 So.2d 701 (Ala.1979), in which insurance contracts were formed in Illinois and Georgia, respectively, and this Court applied the substantive laws of those states to interpret the insurance contract to determine whether a party was covered under the insurance contract and whether the insurer had the duty to defend). However, that rule does not apply when the case involves a mandatory statute, such as the Alabama uninsured/under-insured-motorist statute, § 32-7-23, Ala. Code 1975. See Cotton, 540 So.2d at 1388 (stating that because the cited cases dealt with insurance contracts in general and did not involve a mandatory statute such as Alabama’s uninsured/underinsured-motorist statute, this Court had to determine whether, because the insurance contract contained a clause allowing enforcement of out-of-state motor-vehicle compulsory law, the Alabama uninsured-motorist coverage applied); see also Taylor, 659 So.2d at 31-32 (distinguishing the facts of the case from those in Cotton and holding that the evidence supported the conclusion that the insurer knew that the insured resided in Alabama and that Alabama law applies).

In both Cotton and Taylor this Court considered how Section 32-7-23(a), Ala. Code 1975, applies. Section 32-7-23(a), Ala.Code 1975, provides:

“No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in limits of bodily injury or death set forth in subsection (c) of Section 32-7-6, under provisions approved by the Commissioner of Insurance for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, that the named insured shall have the right to reject such coverage; and provided further, that unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with the policy previously issued to him by the same insurer.”

(Emphasis added.) Both Cotton and Taylor state that the relevant issues for analysis are (1) whether the insurance contract was “delivered or issued for delivery” in Alabama, and (2) whether the insured vehicle is “registered or principally garaged” in Alabama.

In Cotton, the insured, a Tennessee resident whose cars were registered in Tennessee, was injured in an automobile accident that occurred in Alabama. Cotton, 540 So.2d at 1387. The insured was employed in Alabama and resided in Huntsville during the week. He returned to Tennessee on the weekends. Id. The insured dealt with his insurance office in Tennessee and did not inform the insurance company of a change in his residence. Id.

This Court noted that Alabama’s uninsured/underinsured-motorist statute, § 32-7-23, Ala.Code 1975, may have been applicable because the insured’s policy contained an “Out-of-State Coverage” clause. 540 So.2d at 1388. That clause stated that “[i]f an insured under the liability coverage is in another State or Canada and, as a non-resident, becomes subject to its motor vehicle compulsory insurance ... law ... the policy will be interpreted to give the coverage required by the law.” 540 So.2d at 1388. Therefore, this Court reviewed the facts to determine whether § 32-7-23, Ala.Code 1975, applied.

This Court noted that it was “conceded that [the insured’s] automobile was principally garaged in Alabama.” 540 So.2d at 1388. However, this Court reasoned that the policy was “delivered or issued for-delivery” in Tennessee, not in Alabama:

“[T]he policy was issued in Tennessee and the premium notices were always mailed to [the insured’s] Atwood, Tennessee, address. The fact that [the insured] mailed his premium checks from Madison, Alabama, is of little consequence .... It would have been simple enough to notify [the insurance company] that he would be in Alabama most of the time and that it should mail his policies to him there.”

540 So.2d at 1388. Thus, the Court held that Alabama’s uninsured/underinsured-motorist statute was not applicable and that the trial court did not err in finding that the insurance policy was not “delivered or issued for delivery” in Alabama. 540 So.2d at 1388.

In Taylor, Carl Taylor, the insured, was originally from Tennessee. 659 So.2d at 31. He purchased his car insurance in Tennessee. He then moved to Alabama and renewed his policy three times from Alabama. 659 So .2d at 31. After the insured moved, the insurance company mailed him a premium notice to his address in Tennessee. The premium notice was returned, with the insured’s Alabama address noted on the return envelope. The insurance company ascertained that the insured’s wife was in Alabama for medical school and renewed the policy. 659 So.2d at 31.

The Court in Taylor distinguished Cotton. 659 So.2d at 32. The Court noted that in Cotton the insurance company did not know that the insured was residing in Alabama during the week, and there was insufficient evidence indicating that the policy had been “delivered or issued for delivery” in Alabama. 659 So.2d at 32. The Court in Taylor then reasoned that the insurance company knew that Taylor was living in Alabama. Id. Because both prongs of § 32-7-23, Ala.Code 1975 — (1) that the insurance contract was “delivered or issued for delivery” in Alabama, and (2) that the insured car was “registered or principally garaged” in Alabama — were met, the Court concluded that Alabama law must be applied in determining the underinsured-motorist benefits. 659 So.2d at 32.

In the case before us, Gail’s Florida policy contains the following provision:

“1. Out-of-State Coverage.
“If an insured under the liability coverage is in another state or Canada and, as a non-resident, becomes subject to its motor vehicle compulsory insurance, financial responsibility or similar law:
“a. the policy will be interpreted to give the coverage required by the law.”

Thus, we review the facts in the light most favorable to the Smiths to determine whether § 32-7-23(a), Ala.Code 1975, applies. See Cotton, 540 So.2d at 1388 (interpreting this same contractual language regarding the applicability of out-of-state compulsory-insurance law in Cotton’s policy to require this Court to determine whether § 32-7-23, Ala.Code 1975, applies).

Gail presented substantial evidence indicating that the Florida insurance policy was “delivered or issued for delivery” in Alabama. The Court in Cotton emphasized that the insured there could have told the insurance company that he was residing in Alabama and that it was to mail the premium notices and policies to Alabama. Cotton, 540 So.2d at 1388. Unlike the insured in Cotton, here, Gail alleges that she specifically instructed the State Farm representative in Florida to mail all of Gail’s insurance policies, renewals, and correspondence to her Alabama address. The State Farm office in Florida sent the premium notices for the Florida policy, including the premium notice covering the period in which Dustin’s accident occurred, to Gail’s Alabama address.

The Court in Taylor reasoned that whether the insurance company knew that the insured resided in Alabama was an important factor in determining whether the policy was “delivered or issued for delivery” in Aabama. Taylor, 659 So.2d at 32. Gail testified that she told the Florida State Farm representative that she primarily resided in Aabama during the week and that the Florida house was a second home. The record also shows that State Farm verified that Gail had a house in Aabama and six automobile policies issued in Aabama and that it gave her the “multi-line” discount on the policy covering the Jaguar. Gail presented substantial evidence indicating that the insurance policy and premium notices were sent to Gail’s Aabama address and that the Florida policy was “delivered or issued for delivery” in Aabama.

In addition, Gail presented substantial evidence indicating that her Jaguar was “principally garaged” in Aabama. A-though Gail’s Jaguar was registered in Florida at the time of Dustin’s accident, Gail presented substantial evidence showing that she lived primarily in Aabama and that the Jaguar was principally garaged at the Smiths’ residence in Aabama.

Viewing the evidence in the light most favorable to the Smiths as the nonmov-ants, we conclude that Gail presented substantial evidence indicating that the Florida policy was “delivered or issued for delivery” in Aabama and that Gail’s Jaguar was “principally garaged” in Aa-bama; therefore, § 32-7-23, Aa.Code 1975, applies in this case. Thus, under these circumstances, we apply Aabama law to determine the underinsured-motorist benefits to which Dustin is entitled. Taylor, 659 So.2d at 32 (stating that where the two prongs are met, “pursuant to § 32-7-23, [Aa.Code 1975,] Aabama law must be applied in determining the underinsured benefits”).

In Aabama, if the insured’s loss exceeds the coverage limits of one policy providing for underinsured-motorist benefits, then the insured can stack other policies with underinsured-motorist benefits to provide coverage to the full amount of the damages required to compensate for the injury or harm sustained. Canal Indem. Co. v. Burns, 682 So.2d 399, 401 (Ala.l996)(stating that “the insured may stack the coverages provided by other uninsured motorist policies to cover up to the amount of damages required to compensate for the actual injury sustained”); State Farm Mut. Auto. Ins. Co. v. Fox, 541 So.2d 1070, 1072 (Ala.1989)(stating that “where the loss exceeds the limits of one uninsured motorist policy, the insured may stack other uninsured motorist policies to cover up to the actual damages sustained”). Section 32-7-23(c), Ala.Code 1975, provides: “The recovery by an injured person under the uninsured provisions of any one contract of automobile insurance shall be limited to the primary coverage plus such additional coverage as may be provided for additional vehicles, but not to exceed two additional coverages within such contract.” Section 32-7-23(c), Ala. Code 1975, thus limits to two the stacking of underinsured-motorist coverage in a single insurance contract, but under our caselaw it does not prevent stacking under two or more separate insurance contracts. Canal, 682 So.2d at 401 (stating that “[t]he statutory language clearly imposes a ‘limitation’ only on the number of uninsured motorist coverages that can be stacked within one contract of insurance” and that “the statute does not prevent stacking under two or more separate contracts of insurance”).

In this case, Dustin has already been paid $500,000 of underinsured-motorist benefits under the Florida policy. The additional $120,000 of underinsured-motorist benefits under the Alabama policies would be “stacked” with the amount paid under the Florida policy because Dustin’s damages exceed $645,000 — the sum of the amounts available to Dustin under the Florida policy, the Alabama policies, and the settlement proceeds from Arant (see note 2, supra).

State Farm argues that the Florida policy contains a clause stating that “this coverage does not apply if other applicable coverage is selected.” State Farm argues that this clause prevents “stacking.” However, we have consistently held that such clauses cannot prevent “stacking” of coverages in Alabama. See Canal, 682 So.2d at 402 (holding that this Court has held “other insurance” and “limits of liability” clauses cannot prevent stacking of coverages and “are in derogation of well-settled Alabama law”); State Farm Mut. Auto. Ins. Co. v. Cahoon, 287 Ala. 462, 466, 252 So.2d 619, 621 (1971) (holding that inclusion in an insurance contract of a liability-limiting clause to prevent an insured from recovering actual damages is ineffective against the liability imposed by Alabama’s uninsured/underinsured-motorist statute); Safeco Ins. Co. of America v. Jones, 286 Ala. 606, 614, 243 So.2d 736, 742 (1970) (holding that an insurer cannot avoid its statutorily imposed liability by inserting a liability-limiting clause). Therefore, the liability-limiting clause in the Florida policy cannot prevent the “stacking” of the underinsured-motorist benefits of the Florida policy and the Alabama policies.

State Farm argues that § 32-7-23, Ala. Code 1975, does not apply in this case because, it says, Gail allegedly executed an affidavit declaring Florida to be her permanent residence for purposes of obtaining the Florida homestead exemption. Whether Gail declared Florida to be her permanent residence in an affidavit, however, does not affect whether § 32-7-23, Ala.Code 1975, applies. We are concerned only with whether the two prongs of the statute are satisfied, and we have determined that they are.

State Farm argues that Gail is equitably estopped from arguing that her Jaguar was principally garaged in Alabama because she gave the State Farm agent in Florida the address of the Florida house as her residence, and in order to obtain a Florida homestead exemption she allegedly signed an affidavit declaring Florida to be her permanent residence. For equitable estoppel to apply, (1) the actor with knowledge must communicate misleadingly; (2) the other must rely on the misleading communication; and (3) the other must be harmed materially if the actor acts inconsistently with his earlier conduct. Haginas v. Haginas, 598 So.2d 1334, 1337 (Ala.l992)(quoting Dobbs, Remedies, § 2.3 (1973)). Viewing the facts in the light most favorable to the Smiths, we conclude that State Farm failed to show that Gail communicated falsely about her situation: The record indicates that Gail disclosed to the State Farm representative in Florida what she was doing and why she was doing it, and that the Florida State Farm representative took the steps necessary to ascertain Gail’s residency in Alabama so that she could receive a “multi-line” discount based on the homeowner’s and automobile insurance policies in Alabama. Thus, it would appear that State Farm was aware of the truth when it entered into the contract with Gail for the Florida policy, and, therefore, it cannot assert estoppel. See Union Oil Co. of California v. Colglazier, 360 So.2d 965, 969 (Ala.1978) (stating that' “[a] party who seeks to assert an estoppel must have been ignorant of the truth at the time of the conduct amounting to the representation and at the time when that conduct was acted upon”); Cosby v. Moore, 259 Ala. 41, 47, 65 So.2d 178, 182 (1953)(stating that there is no estoppel if nothing was done by one to mislead the other).

The Smiths raise two additional arguments. They argue (1) that the trial court exceeded its discretion in failing to strike an affidavit submitted by State Farm in support of its summary-judgment motion, and (2) that the trial court erred in denying their summary-judgment motion asserting that they are entitled to prejudgment interest on the $120,000. Because we conclude that the trial court erred in entering the summary judgment in favor of State Farm and are remanding this case for further proceedings, we pretermit discussion of these issues.

IV. Conclusion

We conclude that the trial court erred in entering a summary judgment in favor of State Farm and against the Smiths. Therefore, we reverse the trial court’s judgment and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

NABERS, C.J., and HARWOOD, STUART, and BOLIN, JJ., concur.

      . It appears from an internal State Farm memorandum that the vehicle involved in the accident did not belong to the Smiths.

      . All claims against Arant were settled after Arant's insurance carrier paid the Smiths the $25,000 limit of Arant’s policy, and State Farm waived its subrogation interest. Arant was dismissed as a defendant on June 4, 2004.

      . The record also reflects that State Farm had a "master record” as of February 20, 2004, that listed the Smiths’ home address in Alabama as Gail’s residential address and included comments about the Smiths’ various policies in effect from September 3, 1992, to February 5, 2004, including the policy covering Gail’s Jaguar. The “master record” did not list the Florida house as the residential address for anyone in the Smith family.

      . The parties do not dispute that the renewal notices for the Florida policy were sent to Gail’s mailing address in Alabama and that Gail continuously paid the premiums to maintain the Florida policy.

      . In Cotton, this Court also cited State Farm Mutual Automobile Insurance Co. v. Bradley, 293 Ala. 695, 309 So.2d 826 (1975), for the proposition that generally we apply the substantive law of the state where the insurance contract was formed. Cotton, 540 So.2d at 1388. In citing Bradley, this Court stated that that case, Davis, supra, and Holliday, supra, are examples of cases dealing with insurance contracts in general and that they did not involve a mandatory statute, such as § 32-7-23. Cotton, 540 So.2d at 1388. However, Bradley involved a resolution of whether the uninsured-motorist coverage can be “stacked” under South Carolina law. 293 Ala. at 696, 309 So.2d at 827. We held in that case that South Carolina law applied because the cars were principally garaged in South Carolina and the policies had been issued in South Carolina. Id. The facts of that case, therefore, were such that the Alabama unmsured/underinsured-motorist statute was not applicable.

      . " ' “An estoppel ... has three important elements. The actor, who usually must have knowledge of the true facts, communicates something in a misleading way, either by words, conduct or silence. The other relies upon that communication. And the other would be harmed materially if the actor is later, permitted to assert any claim inconsistent with his earlier conduct.” ’ ” 598 So.2d at 1337 (quoting Mazer v. Jackson Ins. Agency, 340 So.2d 770, 773 (Ala.1976), quoting in turn Dobbs, Remedies § 2.3 (1973)).