author: CHANDLER, J.,

text:
    Kendrick BROWN, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-00908-COA.
    Court of Appeals of Mississippi.
    Aug. 8, 2006.

      Kendrick Brown, Appellant, pro se.
    Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.
    Before KING, C.J., CHANDLER, GRIFFIS, and BARNES, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. On February 7, 2003, Kendrick Brown pled guilty to two counts for the sale of a schedule II controlled substance in Madison County. Brown was sentenced to twenty years on each count with ten years to serve in the Mississippi Department of Corrections and ten years suspended on each count and five years of post-release supervision. Brown filed a motion for post-conviction relief which was dismissed by the circuit court. Brown appealed for the following:

I.WHETHER BROWN’S GUILTY PLEA WAS VOLUNTARY
II. WHETHER BROWN WAS PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL
III. WHETHER THE INDICTMENT WAS FLAWED
IV. WHETHER BROWN’S SENTENCE CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On June 10, 2002, Kendrick Brown was indicted by the grand jury of Madison County on two counts for the sale of a schedule II controlled substance pursuant to Mississippi Code Annotated section 41-29 — 139(b)(1). Brown pled guilty to the charges on February 7, 2003. Brown was sentenced to twenty years on each count with ten years suspended on each count in the custody of the Mississippi Department of Corrections, and five years post-release supervision.

¶ 4. On February 16, 2005, Brown filed a motion for an evidentiary hearing and post-conviction motion to vacate or set aside sentence and conviction.” The motions were dismissed by the circuit court.

STANDARD OF REVIEW

¶ 5. The trial court’s denial of post-conviction relief must be reviewed under the “clearly erroneous” standard. Robinson v. State, 904 So.2d 203, 204(¶ 3) (Miss.Ct.App.2005). Therefore, this Court will not reverse the trial court’s decision unless the factual findings are found to be clearly erroneous. However, questions of law are reviewed de novo. Id.

LAW AND ANALYSIS

I. WHETHER BROWN’S GUILTY PLEA WAS VOLUNTARY

¶ 6. Brown contends that he did not knowingly and voluntarily enter a guilty plea. Brown argues that a guilty plea is not voluntary unless the defendant possesses an understanding of the law. Brown contends that he did not know his sentence was illegal at the time that he pled guilty and, therefore, he did not understand the nature and the consequences of his plea.

¶ 7. The law is clear; if Brown is advised about the nature of the charge and the consequences of the entry of the plea, the plea will be considered “voluntary and intelligent.” Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). Brown must be informed that a guilty plea waives his right to a jury trial, to protection against self-incrimination and to confront adverse witnesses. Id. Brown has the burden of proving by a preponderance of the evidence that he is entitled to post-conviction relief. McClendon v. State, 539 So.2d 1375, 1377 (Miss.1989).

¶ 8. When Brown pled guilty to the charge of selling a schedule II controlled substance, the trial judge asked Brown several questions. The trial judge inquired whether Brown had an opportunity to fully discuss, with his attorney, the facts and circumstances relating to the crimes with which he was charged. The trial judge also asked whether Brown was aware that a guilty plea waives his constitutional right to remain silent and right to a trial by jury. Also, the judge specifically questioned whether Brown was “freely and voluntarily” admitting guilt to the crimes in which he was charged. Brown answered in the affirmative to all of these questions.

¶ 9. Once the trial judge has determined that a confession is admissible, Brown has a heavy burden to reverse that decision on appeal. Frost v. State, 483 So.2d 1345, 1350 (Miss.1986).

Such findings are treated as findings of fact made by a trial judge sitting without a jury as in any other context. As long as the trial judge applied the correct legal standards, his decision will not be reversed on appeal unless it is manifestly in error, or is contrary to the overwhelming weight of the evidence.

Foster v. State, 639 So.2d 1263, 1281 (Miss.1994). Brown’s contention that he did not enter the plea voluntarily is not sufficient to overcome the heavy burden Brown must overcome on appeal. There is no evidence that Brown entered his plea involuntarily or unknowingly. Therefore, this issue is without merit.

II. WHETHER BROWN WAS PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 10. The standard of review for claims of ineffective assistance of counsel is the two-part test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a showing that (1) counsel’s performance was deficient and (2) that the deficiency prejudiced the defense. The burden is on Brown to prove both prongs. Edwards v. State, 615 So.2d 590, 596 (Miss.1993).

¶ 11. Brown contends that he received ineffective assistance of counsel because counsel only gave him the choice to plead guilty and, therefore, his plea was not voluntary and knowingly entered. As stated above, there is no evidence that Brown unknowingly and involuntarily entered a guilty plea.

¶ 12. Brown also contends that counsel did not know the law regarding the sale of cocaine nor did counsel know the facts of the case. However, the record shows that Brown informed the court that he had discussed with his counsel all facts and circumstances relating to the crimes with which he was charged. Brown also told the court that he discussed with counsel all elements of the crime and all facts that might aid in his defense. The trial judge read all of the elements of the crime to Brown and inquired as to whether he understood each of these elements. Brown answered in the affirmative as to each count.

¶ 13. There is no evidence to indicate that counsel was unaware of the facts of the case or of the law pertaining to the sale of cocaine. Therefore, Brown has failed to prove that counsel’s performance was deficient. This issue is without merit.

III. WHETHER THE INDICTMENT WAS FLAWED

¶ 14. Brown contends that his constitutional rights were violated because the indictment failed to address the quantity of cocaine that was allegedly sold. However, this Court has held that “[a] valid guilty plea waives all non-jurisdictional defects to an indictment.” Clark v. State, 923 So.2d 256, 258(5) (Miss.Ct.App.2006) (citing Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989)). “Therefore, even if from the pleadings and the record before us it was not clear that the claims raised are patently without merit, the issues [Brown] seeks to raise are barred by his plea.” Id. This issue is without merit.

IV. WHETHER BROWN’S SENTENCE CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT

¶ 15. At the plea hearing the court explained to Brown that the minimum sentence for the offense was zero years and a five thousand dollar fine and the maximum sentence was thirty years with a maximum fine of one million dollars. After Brown entered a guilty plea the court sentenced him to twenty years on each count to run concurrently with ten years suspended on each count and five years post-release supervision. The sentence is within the statutory guidelines which states:

[A]ny person who violates subsection (a) of this section ... shall be sentenced as follows:
(1) In the case of controlled substances classified in Schedule I or II, as set out in Sections 41-29-113 and 41-29-115, except thirty (30) grams or less of marihuana, and except a first offender as defined in Section 41-29-149(e) who violates subsection (a) of the section with respect to less than one (1) kilogram but more than thirty (30) grams of marihuana, such a person may, upon conviction, be imprisoned for not more than thirty (30) years and shall be fined not less then Five Thousand Dollars ($5,000) nor more than One Million Dollars ($1,000,000), or both.

Miss.Code Ann. Section 41-29-139(b)(l). Because Brown’s sentence imposed fell within the statutory guidelines, the sentence does not constitute cruel and unusual punishment. Ford v. State, 844 So.2d 496, 498(8) (Miss.Ct.App.2003). Therefore, this issue is without merit.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY DISMISSING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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


source: Caselaw Access Project

license: Public Domain

text:
    Marcey T. JONES, Appellant v. SOUTHERN UNITED FIRE INSURANCE and Alpha Insurance Agency, Inc., Appellees.
    No. 2005-CA-00446-COA.
    Court of Appeals of Mississippi.
    Aug. 8, 2006.
    Alsee McDaniel, Indianola, attorney for appellant.
    William Heath Hillman, Hattiesburg, Serena Raspberry Clark, Robert A. Miller, Jackson, attorneys for appellees.
    Before KING, C.J., CHANDLER, GRIFFIS, and BARNES, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Marcey Jones purchased automobile insurance with Alpha Insurance Agency, Inc. (Alpha), underwritten by Southern United Fire Insurance Company (Southern United), in which she signed a form expressly rejecting uninsured motorist coverage. Three months later, when Jones purchased a new vehicle, she contacted Alpha to change the covered vehicle on her policy. Jones claims that she requested uninsured motorist coverage on the new vehicle. Alpha contends that Jones signed an endorsement change form but declined the offer to add additional coverage. Later that year, Jones was involved in a hit and run accident. Jones filed a claim with Southern United. The claim was denied because Jones did not have uninsured motorist coverage. Jones filed suit claiming she was wrongfully denied coverage. Alpha and Southern United filed a motion for summary judgment. The trial court granted the motion. Jones appeals for the following:

I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT JONES DID NOT COMPORT WITH THE REQUIREMENTS OF MISSISSIPPI CODE ANNOTATED SECTION 83-11-101
II. WHETHER THE TRIAL COURT ERRED IN GRANTING ALPHA AND SOUTHERN UNITED’S MOTIONS FOR SUMMARY JUDGMENT

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On January 4, 2001, Jones purchased automobile insurance from Alpha, underwritten by Southern United, for a 1992 Pontiac Grand Am. The policy contained liability, comprehensive, collision, towing and labor rental charges. The insurance agent explained that uninsured motorist coverage was available for an additional premium but Jones refused that coverage. Jones signed the uninsured motorist coverage rejection which expressly stated that she did not want uninsured motorist coverage.

¶ 4. In March of 2001, Jones purchased a 1996 Nissan Maxima and contacted her insurance agent to change the vehicle covered on her policy. She contends that she requested full insurance coverage on the new vehicle, including uninsured motorist coverage. Jones claims that she signed no form rejecting uninsured motorist coverage for the 1996 Nissan Maxima. She says she never received an insurance policy for the new vehicle. Alpha claims that Jones signed an endorsement change form but declined to add the additional coverages.

¶ 5. On May 25, 2001, Jones was involved in a hit and run accident. Jones made a claim for uninsured motorist benefits for property damages and personal injuries. Jones reported and filed her claims with Southern United. Southern United paid Jones $4,451.99 for property damage to the vehicle and $180 for a rental car. However, Southern United denied the uninsured motorist claim alleging that there was no uninsured motorist coverage.

¶ 6. Jones filed suit in the Hinds County Chancery Court seeking a declaration and reformation regarding the insurance coverage provided by Southern United. Alpha and Southern United moved for summary judgment claiming Jones knowingly refused to purchase uninsured motorist coverage and, therefore, there was no genuine issue of material fact. Jones claims that she specifically requested uninsured motorist coverage for the Nissan Maxima but was told that the coverage would be provided in a separate policy.

¶ 7. On February 2, 2005, the trial court granted the motions for summary judgment. The court held that Jones’ request for uninsured motorist coverage was not in writing as required by Mississippi Code Annotated Section 83-11-101 (Rev.1999).

STANDARD OF REVIEW

¶ 8. The trial court should grant a motion for summary judgment when there are no genuine issues of material fact. Stringer v. Bufkin, 465 So.2d 331, 333 (Miss.1985). The standard of review for summary judgment is de novo. If this court finds that there is a genuine issue of material fact, this Court must reverse the decision of the trial court. Id.

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT JONES DID NOT COMPORT WITH THE REQUIREMENTS OF MISSISSIPPI CODE ANNOTATED SECTION 83-11-101

¶ 9. Jones alleges that the insurance agent made an oral promise to provide uninsured motorist coverage, and the oral promise should be binding. Jones contends that the original policy was not modified, but rather, a new policy was issued which required a new waiver of uninsured motorist coverage. Jones claims she never signed a rejection of uninsured motorist coverage for the new vehicle. In the event of any ambiguity as to whether uninsured motorist coverage was to be provided, Jones claims the ambiguity must be construed in her favor.

¶ 10. Alpha and Southern United contend that a new policy was not created, but rather, the original policy was modified. They claim that Jones knowingly rejected the uninsured motorist insurance in writing, as shown in the uninsured motorist coverage selection or rejection form that Jones signed. Regarding the modification of the original policy, Alpha and Southern United argue that Jones affirmatively rejected uninsured motorist coverage when she signed the Mississippi endorsement change form not requesting uninsured motorist coverage.

¶ 11. The trial court held that Jones was aware the change to include the new vehicle only modified the original policy. The court held that Jones was informed of uninsured motorist coverage and knowingly gave written rejection of the coverage. The court stated that Jones’ alleged request for uninsured motorist coverage on the new vehicle was not in writing and, therefore, did not comport with Section 83-11-101 of the Mississippi Code Annotated. Because there is no additional evidence to indicate that Jones made such a request, the trial court held that there were no genuine issues of material fact.

¶ 12. Mississippi Code Annotated Section 83-11-101(2) (Rev.1999) states, in part, that no automobile insurance policy shall be issued unless the policy contains a provision undertaking to pay the insured all sums which he shall be legally entitled to recover as damages for property damage from the owner of an uninsured motor vehicle. The pertinent part of Mississippi Code Annotated Section 83-11-101(2) states:

The coverage herein required shall not be applicable where any insured named in the policy shall reject the coverage in writing and provided further, that unless the named insured requests such coverage in writing, such coverage need not be provided in any renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.

¶ 13. The purpose of the statute is to “provide protection to innocent insured motorists and passengers injured as a result of the negligence of financially irresponsible drivers.” Rampy v. State Farm Mut. Auto. Ins. Co., 278 So.2d 428, 432 (Miss.1973). The intent is “to provide the same protection to one injured by an uninsured motorist as that individual would have if injured by a financially responsible driver.” Lawler v. Government Employees Insurance Co., 569 So.2d 1151, 1153 (Miss.1990). The provisions of the statute are to be liberally construed to achieve its purpose. Stevens v. USF & G, 345 So.2d 1041, 1043 (Miss.1977). There are two issues to consider in determining whether Jones’s coverage was properly denied.

A. Whether the requirements of Mississippi Code Section 83-11-101(2) were met

¶ 14. As stated in Mississippi Code Annotated section 83-11-101(2), once Jones properly refused uninsured motorist coverage, any request for uninsured motorist coverage in a renewal policy made thereafter, must be made in writing. Jones contends the requirement that a request for uninsured motorist coverage must be in writing does not apply to her because the policy written for the 1996 Nissan Maxima was not a renewal policy. She contends that the Alpha agent informed her that a new policy would be issued. Jones claims she never signed a rejection of uninsured motorist coverage regarding the new policy. Therefore, Jones alleges the requirement, that an insured must reject uninsured motorist coverage in writing under new insurance policies, was not properly fulfilled by Alpha and Southern United.

¶ 15. To the contrary, Alpha and Southern United contend that the original policy covering the 1992 Pontiac Grand Am was modified to cover the 1996 Nissan Maxima. Alpha and Southern United contend that the policy was a renewal policy and allege that there is overwhelming evidence which demonstrates that no new contract was formed. This evidence includes the fact that the policy number never changed and the fact that the Mississippi endorsement change form, which was signed by Jones, indicated that the original coverage remained the same.

¶ 16. The trial court held that Jones modified the policy, electing to delete the 1992 Pontiac from her policy and to add the 1996 Nissan Maxima. The court held that Jones signed an endorsement change form which provided for modifications only and did not create a new policy of insurance. The court held that the Mississippi endorsement change form sought only modifications of the covered vehicles and not modifications of the types and scope of coverage. Before determining whether the requirements of Mississippi Code Annotated section 83-11-101(2) were met, we must determine whether the policy was modified to include the 1996 Nissan Maxi-ma or whether including the Nissan Maxi-ma created an entirely new policy.

¶ 17. We find that the policy was not a new policy but rather a modification of the original policy. Although Jones claims that the policy was a new policy, there is no evidence that either party cancelled the original policy nor is there evidence that a new policy was created.

¶ 18. Mississippi Code Annotated section 83-11-3, governs the circumstances in which an insurer can cancel an insurance policy. An insurer can cancel a policy only if the insured fails to pay the premium, fails to make payments, the driver’s license of the named insured or any other operator of the vehicle has been suspended or revoked, or the motor vehicle registration has been suspended or revoked. Miss. Code Ann. § 83-11-3 (Rev.1999). Under Mississippi Code Annotated section 83-11-5 (Rev.1999), notice of cancellation of a policy must be mailed to the named insured at least thirty days prior to the effective date of cancellation. Under Mississippi Code Annotated section 83-11-3, Southern United had no lawful right to cancel the original policy nor was notice of a cancellation of the original policy sent to Jones.

¶ 19. There is no evidence that Jones cancelled the original insurance policy. An insured can cancel an insurance policy voluntarily by requesting cancellation, Wolverine Insurance Co. v. Taylor, 312 So.2d 699 (Miss.1975), or by allowing the policy to lapse through failure to pay the premiums. Cole v. Motors Ins. Corp., 243 So.2d 556 (Miss.1971). Jones does not allege that she requested a cancellation of the insurance policy nor did she allow the policy to lapse. The original policy was not cancelled until September of 2001, when Jones let the policy lapse because of failure to pay the premiums.

¶ 20. There is no evidence to show that a new policy was created. Jones did not fill out an application for a new insurance policy. Instead, Jones signed a Mississippi endorsement change form which modified only the covered vehicle. The change form did not modify the type of coverage nor was the uninsured motorist coverage added onto the original policy. Additionally, the policy number did not change.

¶ 21. The evidence clearly shows the original policy was modified, not cancelled, to include the new vehicle. Clear evidence that the policy was modified is that the policy number and the original coverage remained the same. Looking at the evidence in the light most favorable to Jones, we cannot find any evidence that the original policy was cancelled or that a new policy was created.

¶ 22. Because this Court finds that the original policy was modified to include the new vehicle, we must determine whether the coverage was properly rejected. “In essence, the statute says that the insuror is not required to provide uninsured motorist coverage where that coverage has previously been rejected unless the insured has given the insuror a written revocation of that rejection.” Stringer, 465 So.2d at 334. In the present case, it is undisputed that Jones originally rejected the uninsured motorist coverage by signing the uninsured motorists coverage selection or rejection form. It is also undisputed that Jones did not revoke that rejection in writing. Therefore, Jones failed to meet the requirements of requesting uninsured motorist coverage for a renewal policy in writing under Mississippi Code Annotated section 83-11-101(2). This issue is without merit.

B. Whether the trial court properly concluded that there were no genuine issues of material fact

¶ 23. Jones contends that she orally requested uninsured motorist coverage, therefore, creating a genuine issue of material fact. Jones contends that her oral request for uninsured motorist coverage and the insurance agent’s oral promise to provide such coverage in a new policy was binding upon Alpha and Southern United to provide said coverage.

¶24. In Stringer, 465 So.2d at 332, Stringer originally signed a rejection of uninsured motorist coverage. Later, Stringer renewed the policy and allegedly told the insurance agent that he desired uninsured motorist coverage. Id. Stringer claims that the insurance agent did not ask him to sign anything and told him that he was automatically covered because he did not sign the waiver of uninsured motorist coverage. Id. The trial court granted the defendant’s motion for summary judgment because the request for uninsured motorist coverage was not in writing. Id. at 332. The Mississippi Supreme Court reversed and remanded the case. Id. at 334. The court held:

the statute says that the insuror is not required to provide uninsured motorist coverage where that coverage has previously been rejected unless the insured has given the insuror a written revocation of that rejection. The statute does not prohibit the insuror from issuing such a policy. Even without a written request for the coverage, the insuror has the option of providing it upon oral request. ... It follows then, that where an insurance agent orally promises to bind coverage and that agent has not required a written request for coverage, the insurance agent has merely waived his statutory right to demand such a written request.... Where an insurance agent has waived the requirement of a written request for coverage, there is no logical reason for allowing that agent’s oral promise to bind to have any less significance than any other agent’s oral promise to bind insurance. It is the promise to bind which the insured relies on and that reliance is no less significant where the agent has waived a procedural requirement such as a written request to provide coverage.

Id. at 333-34. The ruling in Stringer is clear that an agent can waive the requirement for written request. Id.

¶ 25. In the complaint, Jones alleged that she was led to believe by Alpha and Southern United that the policy would contain coverage for uninsured motorist coverage. In a sworn affidavit, Jones states that she informed the agent that she wanted “full coverage” on the new vehicle, including uninsured motorist coverage. Alpha and Southern United contend that Jones did not allege that the insurance agent made any promises regarding uninsured motorist coverage. Alpha and Southern United claim that Jones’s alleged “promise” did not arise until the appeal. The law is well settled that this Court cannot consider facts that were not before the trial court.

¶ 26. We find that Jones never alleged that the insurance agent orally promised to provide her uninsured motorist coverage until she filed her motion for appeal. The only evidence before the trial court were Jones’s allegations that she was misled and Jones’s contention that she told the agent she wanted “full coverage” on the vehicle. Jones’s oral request for coverage is not a waiver by the insurance agent. Without the insurance agent’s oral promise, there is no waiver of the requirement that the request for uninsured motorist coverage be in writing. Id. at 334. There was no evidence of an oral waiver by the insurance agent for the trial court to consider. Therefore, there is not a dispute as to whether the requirement of a written request was actually waived. This issue is without merit.

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

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


author: BARNES, J.,

text:
    Billie Joe HAYES, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01409-COA.
    Court of Appeals of Mississippi.
    Aug. 8, 2006.
    Billie Joe Hayes, Appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Billie Joe Hayes appeals the dismissal by the Circuit Court of Attala County of his motion for post-conviction relief. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On March 17, 2005, in the Circuit Court of Attala County, Hayes entered a plea of guilty to one count of armed robbery. After questioning Hayes and allowing several witnesses to speak on Hayes’s behalf, the court accepted Hayes’s plea and sentenced him to a term of fifteen years in the custody of the Mississippi Department of Corrections, with five years suspended and ten years to serve.

¶3. On June 15, 2005, Hayes filed a motion for post-conviction relief in which he asserted (1) that trial counsel had failed to investigate his mental health history; (2) that the trial court, in sentencing, had not properly taken his mental health into account; (3) that counsel had misinformed him of the maximum possible sentence for the crime of armed robbery; and (4) that his attorney’s performance was hindered by a conflict of interest. The trial court dismissed Hayes’s motion, finding Hayes’s allegations to be wholly refuted by the record. On appeal, Hayes raises a number of issues which were not presented to the trial court; we will not address these issues, as they are not properly before this Court. See Black v. State, 806 So.2d 1162, 1163(¶ 3) (Miss.Ct.App.2002).

STANDARD OF REVIEW

¶ 4. Our standard of review on a denial of a motion for post-conviction relief is well-established. We will not reverse the trial court unless we find that the court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002).

ISSUE AND ANALYSIS

WHETHER THE TRIAL COURT ERRED IN DISMISSING HAYES’S MOTION FOR POST-CONVICTION RELIEF.

¶ 5. Hayes’s first assertion is that he suffered ineffective assistance of counsel because his attorney did not consider Hayes’s mental health during the course of his representation. In addition, Hayes claims that the trial court, in sentencing him, neglected to take into account his mental condition.

¶ 6. At Hayes’s plea hearing, defense counsel informed the court that he had, “out of an abundance of caution,” filed for Hayes to undergo a mental examination. The examiners’ report stated the examiners’ unanimous opinion that Hayes was not mentally retarded, and, that while Hayes appeared to be in the borderline range of intelligence, he did not suffer from a major mental disorder. Furthermore, it is apparent that defense counsel took Hayes’s mental condition into consideration when asking the trial court for a lenient sentence. It is also clear that the trial court took Hayes’s improving mental health into account in sentencing Hayes to serve only ten years in prison, when the trial court could have imposed any sentence more than three years but short of life in prison. See Miss. Code Ann. § 97-3-79 (Rev. 2000). Hayes’s claims are without merit.

¶ 7. Hayes also contends that his attorney misinformed him of the maximum possible sentence for the crime of armed robbery. Hayes argues that his counsel told him he could receive a sentence of life in prison were he to plead guilty to the crime. This assertion is contradicted by the record. At his plea hearing and in his sworn guilty plea petition, Hayes stated that he was aware that upon pleading guilty, he could be sentenced by the trial court to anywhere from a term of three years to less than life in prison, and fined up to $10,000. See Miss. Code Ann. § 97-3-79 (Rev.2000). It is clear from the record that Hayes was fully apprised of the maximum possible sentence he could face upon pleading guilty to the crime of armed robbery. This issue is without merit.

¶ 8. Lastly, Hayes contends that his attorney’s performance was hindered by a conflict of interest. Hayes points to nothing in the record that would support his claim, and we can only find from our independent review of the record that defense counsel served his client admirably. This issue is without merit.

CONCLUSION

¶ 9. Finding all of Hayes’s claims to be manifestly without merit, we affirm the judgment of the Circuit Court of Attala County dismissing Hayes’s motion for post-conviction relief.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF ATTALA COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ATTALA COUNTY.

KING, C.J., LEE and MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, ISHEE and ROBERTS, JJ., CONCUR.


text:
    BEDFORD CARE CENTER, Appellant v. Vicky L. KIRK, Appellee.
    No. 2005-CC-00654-COA.
    Court of Appeals of Mississippi.
    Aug. 8, 2006.

      Robin L. Roberts, Hattiesburg, attorney for appellant.
    Vicky L. Kirk, Appellee, pro se.
    Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Vicky L. Kirk applied for unemployment compensation and was denied benefits based on a finding that she voluntarily-left her employment. She appealed, and the Circuit Court of Forrest County reversed the Mississippi Employment Security Commission, finding that the employee had not engaged in misconduct. On appeal to this Court, the following issues are raised:

A. Did substantial evidence support the Mississippi Employment Security Commission’s (“MESC”) finding that Kirk left her employment at Bedford Care voluntarily without good cause? Miss.Code Ann. § 71-5-513(A)(l)(a) (1972).
B. Did the Circuit Court commit reversible error in considering this case as a “misconduct” case instead of voluntary separation, which are statutorily independent grounds for denial?
C. Did the Circuit Court err in considering matters outside the record?
D. Did the Circuit Court err in applying its own judgment reweighing the facts, rather than making a legal determination considering substantial evidence?

¶ 2. This Court finds that the circuit court did err and reverses and renders, reinstating the decision of the Commission denying unemployment benefits.

FACTS

¶ 3. Vicky L. Kirk was a nurse working at Bedford Care Center of Petal, a twenty-four-hour elderly care center. Kirk and another nurse were asked to work on the day shift temporarily while another employee was off work with a heart attack. Kirk refused to work the day shift, even though company policy requires any employee to work any shift assigned. She had her doctor fax an excuse for modified duty, which restricted Kirk’s work activities due to a back problem.

¶ 4. When informed by her supervisor that modified job duties were not available, Kirk stated that she would return with a doctor’s full release. Although she was given an excused absence to go to her doctor, Kirk never returned with a medical release as she stated she would. Kirk never requested medical leave, which would have been available to her under the federal Family and Medical Leave Act.

¶ 5. After leaving on November 21, 2003, Kirk never spoke to her supervisors at Bedford, even though numerous calls were made to her to determine her status and asking her to return. Her one call to Bedford was made after-hours to an answer machine when none of the supervisors would be present. Kirk contends that “they could have written a short note or letter.” She never explains why a telephone call was not appropriate. A telephone call was even made to Kirk’s mother in December in an attempt to contact Kirk and determine when she would return to work. Her mother was the one who went to pick up Kirk’s check at Bedford and to pick up a fruit basket given to employees at Christmas.

¶ 6. Kirk filed for unemployment benefits on December 2, 2003. On the claim form, there are two marks under “Reason for Separation”: “Voluntary Quit” and “Other.” Kirk contends that she did not mark “Voluntary Quit.” At the hearing and in her brief to the Court, Kirk has been consistent in her statements that she was not terminated or fired. In her brief she states:

Of course I said that I was not terminated. That has never been an issue. I simply contend that Bedford Care wrongly claimed that I voluntarily quit when I had every intention of returning to work in January, 2004.

¶ 7. The appeals referee disqualified Kirk from receiving unemployment benefits pursuant to Mississippi Code Annotated § 71-5-513(A)(l)(a) (Supp.2005), which states that a person may be disqualified from receiving benefits for the time the person “left work voluntarily without good cause, if so found by the department....” Based on the facts presented, the referee found that “[t]he claimant constructively quit her job when she did not return to work. The claimant has not shown good cause within the meaning of the law for leaving her employment.” The Board of Review adopted the findings of fact of the appeals referee.

¶ 8. On appeal to the Forrest County Circuit Court, the circuit court reversed the factual determination of MESC. The circuit court stated the issue as:

The question before [the] Court is not whether there was substantial evidence for Bedford to discharge Kirk, but whether or not there was substantial, clear and convincing evidence for Bed-ford to disqualify Kirk for unemployment benefits due to insubordination which rises to the level of misconduct.

STANDARD OF REVIEW

¶ 9. In regard to appellate review, Mississippi Code Annotated § 71-5-531(A) states that “the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” Similarly, the Mississippi Supreme Court has stated:

The denial of unemployment benefits will be disturbed on appeal only if (1) unsupported by substantial evidence, (2) arbitrary or capricious, (3) beyond the scope or power granted to the agency, or (4) in violation of the employee’s rights.

Johnson v. Miss. Emp. Sec. Comm’n, 761 So.2d 861, 863(¶ 6) (Miss.2000).

¶ 10. Substantial evidence is that which is relevant and capable of supporting a reasonable conclusion, or is “more than an scintilla of evidence.” Gilbreath v. Miss. Emp. Sec. Comm’n, 910 So.2d 682, 686(¶ 13) (Miss.Ct.App.2005) (quoting Hooks v. George County, Mississippi, 748 So.2d 678, 680(¶10) (Miss.1999)). Substantial evidence has been further defined to be “such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Hooks, 748 So.2d at 680(¶ 10) (citing Pub. Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 425(¶ 13) (Miss.2000)).

¶ 11. The reviewing court may not reweigh the facts of the case, and is prohibited from substituting its judgment for that of the agency. Allen v. Miss. Emp. Sec. Comm’n, 639 So.2d 904, 906 (Miss.1994). The employee bears the burden of proof of good cause for leaving work. Miss.Code Ann.. § 71-5-513(A)(1)(c).

DISCUSSION

A. Whether the evidence supported the commission’s decision.

¶ 12. Based on the testimony, record, and documents submitted at the hearing, the appeals referee found:

The claimant was employed for approximately four years as licensed practical nurse for Bedford Care Center, Petal, Mississippi, ending November 21, 2003. The claimant was hired to work the nightshift. Because another employee was on leave of absence, the claimant was asked to help out on the dayshift. The claimant refused because she was .scheduled for an MRI due to back pain. When she informed the employer of this, the employer requested a doctor’s statement. The claimant submitted a doctor’s statement for modified duty. The employer does not have modified duty unless an employee has sustained a work related injury. The claimant indicated that she would get a full release for work. The claimant did not submit a full release and did not contact the employer regarding her status, even after the employer made several attempts to contact the claimant. Continuing work was available for the claimant....
The facts in this case show the claimant did not attempt to return to work after she was informed a full release was needed from her doctor after the doctor placed the claimant on modified duty. The claimant constructively quit her job when she did not return to work. The claimant has not shown good cause within the meaning of the law for leaving her employment....

¶ 13. The record and the testimony fully supports the factual determination of the Commission. Even the testimony of Kirk supports the conclusion that she did not return to work after November 21, 2003, and did not provide her employer with the doctor’s excuse that she promised.

¶ 14. The factual findings of the Board of Review are conclusive if supported by evidence and without fraud. Hoerner Boxes v. Miss. Emp. Sec. Comm’n, 693 So.2d 1343, 1347 (Miss.1997); Richardson v. Miss. Emp. Sec. Comm’n, 593 So.2d 31, 34 (Miss.1992). We conclude that the factual determination of the Board and Commission should not be disturbed on appellate review.

B. Whether the circuit court erred in considering this a “misconduct” case.

¶ 15. In all the testimony and evidence before the Commission, there was never any discussion about this being a case of discharge, misconduct or insubordination. There is, in short, no factual basis for the decision of the circuit court. Kirk is clear in stating, “I have never asserted that I was fired.” She also stated, “Of course I said that I was not terminated. That has never been an issue.” Even after Kirk left Bedford and did not respond to telephone calls, a call was made to Kirk’s mother in attempt to get Kirk to come back to work or give some indication when she would return. Kirk, through her mother, was given the traditional Christmas fruit basket a month after she left without clear explanation. There is no indication that Kirk was asked to leave or that she would not have been welcomed back if she chose to come back.

¶ 16. The circuit court’s review should have been limited to questions of law. Miss.Code Ann. § 71-5-531; Hoerner, 693 So.2d at 1347; Barnett v. Miss. Emp. Sec. Comm’n, 583 So.2d 193, 195 (Miss.1991). The Mississippi Supreme Court “has held on numerous occasions that the question of whether an employee voluntarily quits or was discharged is a question of fact for the MESC to decide.” Huckabee v. Miss. Emp. Sec. Comm’n, 735 So.2d 390, 394(¶ 14) (Miss.1998) (citations omitted). This Court is bound by the Board’s finding of fact supported by substantial evidence that Kirk voluntarily quit her employment without good cause. Id.

C. Whether the circuit court erred in considering matters outside the record?

¶ 17. The appellant contends that the circuit court erred in considering evidence not before the Commission in making its decision. In particular, the appellant objects to Kirk’s application for food stamps and a letter from Congressman Gene Taylor.

¶ 18. Appeals to circuit court are on the record from the Commission. Miss. Code Ann. § 71-5-525 (Rev.2000). Consequently, these additional documents should have not been included in the record. However, these documents do not support the decision of the circuit court. The food stamp application states that Kirk was on medical leave, not that she had been discharged for misconduct. The letter from Congressman Taylor is not mentioned in the circuit court’s discussion of the case.

D. Whether the circuit court erred in its review of the commission’s decision?

¶ 19. The circuit court should not have revisited the facts when the findings of the Commission, through the appeals referee and the Board of Review, were supported by substantial evidence. The evidence is clear that the claimant left her employment voluntarily without good cause.

¶ 20. By statute and by case law, the review by the circuit court and this Court should be limited to questions of law. Miss.Code Ann. § 71-5-531. In the absence of such legal questions, we as appellate courts should affirm the decision of the Commission.

CONCLUSION

¶ 21. In this case, the factual determination of the Commission is supported by the evidence, and there are no legal questions to resolve. We reverse and render. The decision of the Commission denying unemployment benefits is reinstated.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY IS REVERSED AND RENDERED.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, ISHEE AND ROBERTS, JJ., CONCUR.


author: IRVING, J.,

text:
    EASY REACH, INC. (Formerly Easy Reach Brush, Inc.) and Brant L. Cedotal, Appellants v. HUB CITY BRUSH, INC., Appellee.
    No. 2005-CA-00952-COA.
    Court of Appeals of Mississippi.
    Aug. 8, 2006.

      R. Christopher Wood, attorney for appellants.
    Lawrence Cary Gunn, Hattiesburg, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Brant Cedotal, owner of Easy Reach, Inc., sued on behalf of himself and Easy Reach for a declaratory judgment to void a non-competition clause that bars Easy Reach from manufacturing its own brushes. The Forrest County Chancery Court declined to find that the non-competition agreement was invalid, and entered a judgment denying relief to Easy Reach and Brant. Believing the court’s decision in error, Easy Reach and Brant appeal, asserting the following issues which we repeat verbatim:

The Trial Court erred when it found that the non-competition clause contained within the Stockholders’ Agreement dated June 23, 1994 was valid despite the fact that the terms of the non-competition clause was [sic] perpetual.
The Trial Court erred when it applied the principle of law stated in Fought v. Morris, 543 So.2d 167 (Miss.1989).

¶ 2. We find that the trial court erred in refusing to void the Easy Reach non-competition clause, and therefore affirm in part and reverse and render in part.

FACTS

¶ 3. Brant’s father and grandfather purchased Piave Broom and Mop Manufacturing Company in 1964. After several years, Piave expanded its manufacturing to produce industrial brushes. In the early 1990s, Brant incorporated Hub City Brush, Inc. and Easy Reach Brush, Inc., which eventually was renamed “Easy Reach, Inc.” As the chancellor found, “[a]ll three companies [Piave, Easy Reach Brush, and Hub City] did business with each other, until problems began to develop between the family members.”

¶ 4. In an attempt to resolve the conflicts that had arisen, Piave merged with Hub City, while Brant retained full ownership of Easy Reach. The family members had the following stock ownership in the new Hub City: Brant Cedotal owned 60%, Robert Cedotal owned 20%, Wayne Cedo-tal owned 10%, and Cecil Cedotal owned 10% of the Hub City shares. Some time thereafter, according to the chancellor: “Robert and Wayne paid Brant a total of $240,000 to convey 15% of his stock in Hub City to them.” Brant continued to retain full ownership of Easy Reach, but Hub City was now owned in the following proportions: Brant owned 45%, Robert owned 30%, Wayne owned 15%, and Cecil owned 10%. Hub City currently manufactures brushes, while Easy Reach manufactures telescopic handles. Easy purchases brushes for the telescopic handles from other sources and then sells its finished product at various locations.

¶ 5. All the stockholders of Hub City (Brant, Robert, Wayne, and Cecil) entered a stockholder’s agreement on June 23, 1994. This agreement contains the following language in paragraph 11.1, which is titled “Covenant Not to Compete”:

As a material inducement to sign this Agreement, each Stockholder agrees that as long as he or she is a Stockholder, he or she will not Compete with HUB CITY BRUSH and, further, that he or she will not Compete with HUB CITY BRUSH during the six-month period beginning on the closing date for the sale of his or her shares of the Stock under this Agreement.

This provision applies to the individual shareholders of Hub City, including Brant. Paragraph 11.2 applies specifically to Easy Reach as a corporate entity, and reads as follows:

Section 11.1 above will not apply to EASY REACH BRUSH, INC. It is hereby agreed by and between HUB CITY BRUSH and EASY REACH BRUSH, INC. that EASY REACH BRUSH, INC. shall not manufacture any brushes except paint brushes, and that HUB CITY BRUSH shall not compete with EASY REACH BRUSH, INC. in the sale to truckstops, RV dealers and truck dealers. Furthermore, HUB CITY BRUSH shall not manufacture extension or telescopic handles but EASY REACH BRUSH, INC. may manufacture and sell extension or telescopic handles.

¶ 6. Other facts, as necessary, will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Validity of the Nonr-Competition Clauses

¶ 7. Brant contends that “[t]he covenants not to compete lack precisely these two necessary elements [duration of restriction and geographical limits] and should be declared void as a matter of law and public policy in accordance with Mississippi precedent.”

Standard of Review

¶ 8. “When considering the enforceability of restrictive employment agreements, we review the entire record and ‘the evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court’s findings of fact, must be accepted.’ ” Kennedy v. Metro. Life Ins. Co., 759 So.2d 362, 364(¶ 3) (Miss.2000) (quoting Sta-Home Health Agency, Inc. v. Umphers, 562 So.2d 1258, 1263 (Miss.1990)). “We will not disturb the findings of the lower court when they are supported by substantial evidence unless the Chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Id. (citations omitted).

¶ 9. Non-competition clauses have generally been viewed unfavorably in Mississippi jurisprudence: “Non-competition agreements have been viewed by this Court as ‘restrictive contracts [which] are in restraint of trade and individual freedom and are not favorites of the law.’ Only when such agreements are reasonable will they be considered valid and upheld by this Court.” Id. at 364(¶ 4) (citations omitted). Specifically, “the enforceability of a non-competition agreement [is] largely predicated upon the reasonableness and specificity of its terms, primarily, the duration of the restriction and its geographic scope.” Id.

¶ 10. Because 11.1 and 11.2 both relate to different entities (11.1 applies only to Brant himself, while 11.2 applies to Easy Reach), we address each separately below.

11.1: The Shareholder Non-Competition Clause

¶ 11. We find that the court was correct in finding that the terms of paragraph 11.1 are reasonable. This non-competition clause, which relates only to shareholders, is limited by both duration and location. Specifically, the clause restricts competitive activity within the first six months after a stockholder sells his interest in the company. The definition of “compete” contained in paragraph 12.5 limits the clause as to the location within five miles of any place where Hub City has a contract at the time a shareholder sells his interest in the company.

¶ 12. Since the clause is reasonably limited as to duration and location, we find that there is enough evidence in the record to support the chancellor’s finding that the non-competition clause contained in paragraph 11.1 is reasonable, and therefore valid.

11.2: The Easy Reach Non-Competition Clause

¶ 13. We find that this clause is not limited as to either duration or location and is therefore unreasonable and invalid. Read literally, the terms of paragraph 11.2 forever bar Easy Reach from engaging in the manufacture of brushes. Because the definition of “compete” contained in the agreement does not apply to Easy Reach, the clause is unlimited as to location as well. As stated in Kennedy, the reasonableness of a non-competition clause is largely a function of the specificity of its terms, specifically whether the duration and geographic limits of the clause are identified.

¶ 14. Based on the present record, there is nothing to indicate that the Easy Reach non-competition clause is reasonable. The five mile limit as to duration is contained only in the section of the agreement that defines “compete.” However, the only time that “compete” or one of its conjugations appears in 11.2 is in the following clause: “that HUB CITY BRUSH shall not compete with EASY REACH BRUSH, INC. in the sale to truckstops .... ” (emphasis added). Although the paragraph attempts to restrict the business of Easy Reach by stating that “EASY REACH BRUSH, INC. shall not manufacture any brushes except paint brushes,” nothing in the paragraph uses the term “compete” in connection with Easy Reach.

¶ 15. Paragraph 12.5, which contains the agreement’s definition of “compete,” specifically reads:

Compete. “To Compete” and “to Compete with HUB CITY BRUSH” both mean to engage in the same or any similar business as HUB CITY BRUSH in any manner whatsoever, including competing as a proprietor, partner, investor, stockholder, director, officer, employee, consultant, independent contractor, or otherwise, other than any activities as a principal of EASY REACH BRUSH, INC. within a geographic area within five miles of any facility in which HUB CITY BRUSH has a contract at the time that such Stockholder first ceased to be a Stockholder.

Paragraph 11.2, which contains the Easy Reach non-competition clause, does not contain the word “compete” or any of its conjugations with reference to Easy Reach. Therefore, the definition of “compete,” which contains the only potential geographic limitation, cannot apply to the Easy Reach non-competition clause. Instead, a reading of the entire agreement indicates that Easy Reach was forbidden from manufacturing brushes everywhere for an infinite length of time.

¶ 16. Hub City seems to argue in its brief that the non-competition clause should be upheld because Brant and Easy Reach have continued to be profitable despite paragraph 11.2 of the shareholder’s agreement. For example, Hub City argues in its brief: “Appellant quite naturally makes no mention of the fact that his income from the brush business is over $500,000 a year, more than all the rest of the family combined.” This reasoning is echoed by the chancellor’s ruling, which found:

It seems that the main reason to strike down a non-compete clause is to prevent any undue hardship on the part of the one bound ... [but] there has been no proof that the clause has caused any sort of undue harm on the business of Easy Reach; and in fact evidence shows that Brant typically earns approximately $500,000 per year as a majority shareholder of Hub City.

¶ 17. With all due respect to the learned chancellor in this case, evidence indicated that Easy Reach’s business has been impacted by the non-competition clause. Brant specifically testified that the market for brushes has changed “drastically” in recent years:

I think it was ‘98 we got in trouble because the competition was so great from import of brushes from China, and at that point we started marketing a product with extra nice display racks which enabled us to keep our head above water ... but now the competition has basically copied our racks and they’ve got racks just like we do, and we’re having a hard time competing on a price level.

When questioned directly by the court, Brant testified that “this year we’ve [Easy Reach] had about a 40 percent drop in profits.” When the court asked, “So you’re saying unless you expand, then [your daughter’s] future as far as the company, your company is concerned, would be limited,” Brant responded, “Well, I foresee that the company won’t be around in future years because the competition has gotten so strong and my hands are tied to compete with them — my competition with the brushes coming in from China.” Far from contradicting these statements by Brant, Wayne testified that Hub City is having “similar problems” to those of Easy Reach in terms of dealing with imports. Robert testified that “We [Hub City] are suffering drastically due to imports .... I can buy imports cheaper than I can manufacture brushes.... We’re in the same boat with the market. I understand what Brant is saying because I experience it every day of my life.” (emphasis added).

¶ 18. Given the above testimony, we do not see the lack of hardship that the chancellor in this case cited as the basis of his judgment. The only factual support cited by the chancellor is that “evidence shows that Brant typically earns approximately $500,000 per year as a majority shareholder of Hub City.” We fail to see what Brant’s earnings as a majority shareholder of Hub City have to do with any hardship placed on Easy Reach due to the . non-competition clause. Furthermore, an individual could make three million dollars per year and still suffer hardship from a non-competition clause if he could make six million dollars per year without the non-competition clause. The size of Brant’s salary says nothing about the hardship that Easy Reach has suffered as a result of the non-competition clause.

¶ 19. The chancellor cited Cooper v. Gidden, 515 So.2d 900 (Miss.1987), for the proposition that non-competition clauses involved in the sale of a business are less strictly scrutinized that non-competition clauses between employer and employee. While Cooper does hold that non-competition clauses are less closely scrutinized “where the sale of a business’s goodwill is involved,” nothing in the case indicates that non-competition clauses in a business context can be unreasonable. Id. at 905. In fact, Cooper expressly states in conclusion: “After reviewing the present case, we are confident that Cooper entered into a valid covenant not to compete, reasonable as to both time and geographic location, as was found by the chancellor.” Id. (emphasis added). Herring Gas Company, Inc. v. Whiddon, 616 So.2d 892 (Miss.1993), which the chancellor also cites as support, similarly does not indicate that non-competition clauses in a business context can be unreasonable as to duration and geographic scope.

¶ 20. It is clear from a reading of the clauses at issue that paragraph 11.2, which restricts Easy Reach from manufacturing brushes, is not limited as to duration or location. No other evidence supported a finding that the clause was otherwise reasonable for some reason. Therefore, the chancellor should have found that the clause is unreasonable and unenforceable. We reverse and render. Paragraph 11.2 is invalid and unenforceable.

2. Fought v. Morris

¶ 21. The chancellor also found that his decision was necessitated by the holding of Fought v. Morris, 543 So.2d 167 (Miss.1989), which holds that majority shareholders of a company must be “intrinsically fair” to minority shareholders and owe a fiduciary duty to the minority shareholders. Id. at 171. The chancellor in the present case interpreted this to mean that: “If this Court were to invalidate the non-compete clause set out in the Shareholder’s Agreement, this would in effect allow Brant to breach his fiduciary duty toward the shareholders of Hub City by possibly putting them out of business through competition.”

¶ 22. Fought provides no basis for upholding the clause. While it is true that Brant possibly could violate the principles detailed in Fought, it is undisputed that he has not done so to this point. No evidence was presented indicating that Brant has, as of yet, done anything to jeopardize Hub City’s business. Brant testified that he has faithfully followed the terms of the non-competition clause and has not manufactured brushes. Furthermore, Brant testified that, if he were allowed to manufacture brushes, he did not foresee competing with Hub City because Easy Reach and Hub City compete in different markets. Until this point, Brant has acted in an “intrinsically fair” manner toward his fellow shareholders, and there is no reason why he could not continue to do so, even if the non-competition clause is voided. Therefore, Fought provides no reason to uphold the clause.

¶ 23. THE JUDGMENT OF THE CHANCERY COURT OF FORREST COUNTY UPHOLDING NON-COMPETITION CLAUSE IS AFFIRMED AS TO THE SHAREHOLDER NON-COMPETITION CLAUSE AND REVERSED AND RENDERED AS TO THE EASY REACH NON-COMPETITION CLAUSE. ALL COSTS OF THIS APPEAL ARE TO BE SPLIT EQUALLY BETWEEN THE APPELLEE AND THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.

      . During his testimony, Brant questioned the meaning of this limitation. When asked on cross-examination by Hub City's attorney to admit that the geographic limitation contained in paragraph 12.5 is reasonable, Brant responded: "I don’t know about the terminology of the contract you're talking about because there's no contracts [by Hub City] with customers as far as I know. You don’t get contracts, so I'm not sure about that terminology.” Despite repeated attempts to get Brant to admit that the five-mile limit is reasonable, Brant refused to testify that Hub City does business through contracts. Therefore, Brant maintained that he could not testify about the reasonableness of the geographic limitation, since the limit was based on a five-mile radius around locations where Hub City has contracts, which Brant testified Hub City does not have. Although this testimony casts doubt on the clause, we note that no other testimony was produced indicating that no meaning can be derived from the clause. Therefore, the chancellor reasonably could have found that the clause was limited.

      . We also note that this case does not involve the sale of a business or the sale of a business's goodwill. Brant has sold neither Easy Reach nor Hub City, nor has either been sold to him.


text:
    Lois RICHARDSON, Appellant v. GRAND CASINOS OF MISSISSIPPI, INC.—GULFPORT, LLC, Appellee.
    No. 2005-CA-00582-COA.
    Court of Appeals of Mississippi.
    Aug. 8, 2006.

      Chad Patrick Favre, Joe Sam Owen, Gulfport, attorneys for appellant.
    Celestial Reep Oglesby, Stephen Giles Peresich, Biloxi, attorneys for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. After falling and suffering injuries at the Grand Casino in Gulfport on May 17, 2001, Lois Richardson sued Grand Casinos of Mississippi — Gulfport, LLC (the Grand), alleging that her injuries resulted from negligence on the part of the Grand. After engaging in discovery, the Grand filed a motion for summary judgment, which the Harrison County Circuit Court granted after a hearing on the matter. Aggrieved, Richardson appeals and contends that the court erred in granting summary judgment because material issues of fact exist regarding whether the steps Richardson fell down were dangerous, and whether the Grand adequately warned of the danger of the steps.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Richardson went to the Grand Casino in Gulfport on May 17, 2001. She had just entered the casino and was approaching the cashiers’ cage when she fell down a small set of stairs. There is multi-colored carpet on the floor at the bottom of the stairs, and the floor immediately preceding the steps at the top of the flight is a gray stone. The stairs themselves are a shade of gray that is different from the flooring preceding the steps. At the time of the accident, it is undisputed that there were both handrails and a warning sign that warned visitors to watch their step when descending the steps.

¶ 4. Additional facts, as necessary, will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

Standard of Review

¶ 5. We review the grant of a motion for summary judgment de novo. Zurich Am. Ins. Co. v. Goodwin, 920 So.2d 427, 432(¶ 7) (Miss.2006) (citing Monsanto Co. v. Hall, 912 So.2d 134, 136(¶5) (Miss. 2005)). Summary judgment is proper when no genuine issue of material fact exists, and the party moving for summary judgment bears the burden of showing that no genuine issue of material fact exists. Id. “Mere allegations of facts are not sufficient to create a genuine issue of material fact sufficient to defeat a motion for summary judgment.” Gorman-Rupp Co. v. Hall, 908 So.2d 749, 757(¶ 25) (Miss.2005) (citing Corey v. Skelton, 834 So.2d 681, 684(¶ 7) (Miss.2003)).

1. Dangerous Condition

¶ 6. Richardson alleges that the stairs she fell down constitute a dangerous condition because the stairs “blended in with the flat surface of the flooring.” The Grand owes Richardson the duty “to keep the premises reasonably safe and when not reasonably safe to warn only where there is hidden danger or peril that is not in plain and open view.” Mayfield v. The Hairbender, 903 So.2d 733, 737-38(¶ 20) (Miss.2005) (citations omitted). There is no duty to warn of open and obvious dangers. Id. at 738(¶ 21).

¶ 7. After reviewing the record, we disagree with Richardson’s assertion that the steps were dangerous. The photographs included in the record show that the top step is clearly a different color from the preceding flooring, and the carpet at the bottom of the two steps is easily distinguishable from the steps. Furthermore, there are bright silver freestanding handrails at regular intervals across the steps. Finally, a sign before the steps warns visitors to “watch your step.” Despite Richardson’s assertion in her brief that this was a “single small sign ... not visible from all perspectives,” the photographs clearly show that the sign is of moderate size and would have almost certainly been visible to Richardson as she descended the steps. Helen Harrison, Richardson’s sister, who was with her at the time of the fall, testified in her deposition that the steps “were different” from the flooring in front of them as they “came in the door.” Richardson produced no witnesses, expert or otherwise, to support her contention that the steps are dangerous.

¶ 8. While genuine issues of material fact should survive summary judgment to go to a jury, Richardson must show “specific facts” that show that there is a genuine issue of material fact: “The non-moving party’s claim must be supported by more than a mere scintilla of colorable evidence; it must be evidence upon which a fair-minded jury could return a favorable verdict.” Luvene v. Waldrup, 903 So.2d 745, 748(¶ 10) (Miss.2005) (citations omitted). In the present case, Richardson lacks more than a mere scintilla of evidence in support of her contention. Therefore, summary judgment was properly granted on the ground that Richardson has failed to show that the steps constituted a dangerous condition.

¶ 9. As support, Richardson cites Hill v. Int’l Paper Co., 121 F.3d 168 (5th Cir.1997) and its holding that “whether premises ... [are] reasonably safe depend[s] on whether the owner could reasonably anticipate that an injury would occur on his property.” Hill, 121 F.3d at 171 (citations omitted). Therefore, Richardson argues that the Grand’s actions in installing handrails and a sign are proof that the stairs were not reasonably safe, since the installation indicates that the Grand “was aware of the danger that was present on its premises.” We disagree. As pointed out by the Grand in its brief: “The addition of the warning sign, along with the other safeguards, resulted in a safe condition being made safer still.” Nothing prevents a business from placing signs to make customers aware of reasonably safe conditions as well as dangerous conditions. Therefore, the presence of the warning sign and the handrails did not make the stairs unreasonably safe.

2. Duty to Warn

¶ 10. Our finding that Richardson has failed to present sufficient evidence to show that the steps constituted a dangerous condition necessitates a conclusion that the Grand had no duty to warn Richardson of the steps. A duty to warn arises only when there is a dangerous condition. Since Richardson has failed to show any evidence that the steps were not reasonably safe, she has also failed to show that the Grand had a duty to warn her of the steps.

¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.

      . Richardson frames her issues as a single issue: "Whether the lower court erred in granting summary judgment on the issues of condition, warning and duty to warn.” For clarity's sake, we address this issue as the two separate issues of condition and duty to warn.

      . There were only two steps.


author: SEE, Justice.

text:
    Kenny WILLIFORD et al. v. Scott EMERTON and Kristi Emerton.
    1020616.
    Supreme Court of Alabama.
    March 26, 2004.

      Tabor R. Novak, Jr., and W. Evans Brit-tain of Ball, Ball, Matthews & Novak, P.A., Montgomery, for appellants.
    Charles G. Reynolds, Jr., Lanett, for appellees.
   SEE, Justice.

Scott Emerton and Kristi Emerton sued Kenny Williford and Charlotte Williford, individually and d/b/a Ben-Mor Village, in the Chambers Circuit Court. The dispute involved the lease-purchase of a mobile home. After a jury rendered a verdict in favor of the Emertons, the trial court entered a judgment awarding them $383,000 in compensatory and punitive damages. The Willifords appeal, arguing: (1) that the verdict is unsupported by the evidence, (2) that the amount of damages awarded is unsupported by the evidence, (3) that the trial court improperly dismissed their Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), challenge, and (4) that the trial court improperly allowed the trial to proceed over their objection that the Emertons’ counsel had a conflict of interest that prohibited him from serving as their counsel in this matter. We affirm in part and remand with directions.

I.

On August 28, 1998, the Emertons entered into a contract with the Willifords pursuant to which the Emertons were to purchase a mobile home from the Willi-fords under a lease-to-own plan. The Wil-lifords own and operate Ben-Mor Village, a trailer park in Chambers County. Under the terms of the lease-purchase contract, the Emertons made an initial down payment of $500 and financed the remaining $2,500 at 9% interest. They agreed to make monthly payments of $150 until the balance was paid in full, at which point they would gain title to the mobile home. The Emertons simultaneously entered into a separate lot-rental contract with the Wil-lifords pursuant to which the Emertons agreed to pay $100 per month to rent a lot in Ben-Mor Village, plus $10 per month for garbage collection and $15 per month for water.

Shortly after entering into the lease-purchase contract, the Emertons decided to upgrade, and, on October 9, 1998, they made a $500 down payment on a newer and larger mobile home and entered into another lease-purchase contract with the Willifords for the second mobile home. This contract replaced the August 28 contract, but, except for the amount financed and the monthly payments, it was identical in all respects to that contract. The amount financed in the October lease-purchase contract was $7,500, and the monthly payments increased to $200. The $125 lot rental and garbage and water obligation remained unchanged, bringing the Emer-tons’ total normal monthly obligation to the Willifords to $325.

In November 1998, because of a problem with their automobile, the Emertons were unable to meet their monthly obligation, and on November 13,1998, they made only a partial payment of $260. Because of the automobile problem, the Emertons were forced to move in with Scott Emerton’s parents so that his parents could drive Scott to and from work. Because the Em-ertons had failed to pay their entire balance, the Willifords, on November 23, placed on the door of the mobile home a “Notice of Termination of Tenancy/Lease.” The notice warned the Emertons that if they did not surrender possession of the mobile home within 10 days they would face legal action. On December 1, the Willifords placed a second, identical “Notice of Termination of Tenancy/Lease” on the door of the mobile home.

On December 11, the Emertons and Scott’s mother returned to the mobile home with a truck to move their personal belongings out of the home. The Emer-tons claim that when they arrived, they saw that the Willifords had removed the door to the mobile home and the Willifords were inside. Upon seeing the Emertons, Kenny Williford allegedly became angry and told them they had 10 minutes to get everything out of the home before he telephoned the police. The Emertons claim that they then gathered what they could in 10 minutes and left, leaving many of their possessions in the mobile home.

On March 21, 2000, the Emertons sued the Willifords, alleging conversion, trespass, the tort of outrage, and breach of contract. The case was tried before a jury on September 16, 2002. The jury returned verdicts in favor of the Emertons on their conversion and breach-of-contract claims. On the breach-of-contract claim, the jury awarded the Emertons $25,000 in compensatory damages, interest, and costs. On the conversion claim, the jury awarded the Emertons $8,000 in compensatory damages and $350,000 in punitive damages. On September 19, 2002, the trial court entered a judgment in favor of the Emer-tons in the total amount of $383,000 in accordance with the jury verdict.

The Willifords filed a motion for a new trial or a judgment as a matter of law (“JML”) and a motion for a remittitur. The trial court denied both motions, and the Willifords appealed.

II.

The Willifords’ first argue on appeal that the jury’s verdicts in favor of the Emertons on the conversion and breach-of-contract claims are unsupported by the evidence. In considering previous appeals challenging a jury’s verdict, this Court has said:

“Upon review of a jury verdict, we presume that the verdict was correct; we review the tendencies of the evidence most favorably to the prevailing party; and we indulge such reasonable inferences as the jury was free to draw from the evidence. We will not overturn a jury 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, this presumption of correctness “is strengthened by the trial court’s denial of the motion for a new trial.” Friendly Credit Union v. Campbell, 579 So.2d 1288, 1291 (Ala.1991).

The Willifords argue that there was no basis on which the jury could have found them hable on the breach-of-eontract and conversion claims because, they allege, the evidence was undisputed that the Emer-tons breached the contract first by failing to meet their entire obligation for November, and “[ujnder general principles of contract law, a substantial breach by one party excuses further performance by the other.” Nationwide Mutual Ins. Co. v. Clay, 525 So.2d 1339, 1343 (Ala.1988). The Willifords also argue that, because the lease-purchase contract stated that all rights to the mobile home reverted to the Willifords if the Emertons did not make a payment within 30 days of its becoming due, they cannot be found hable for conversion.

The Emertons argue that, based on their payment on November 13 of $260, they never breached the lease-purchase contract, which is the only contract they are suing on, and which required a monthly payment of only $200. Therefore, they argue, because they were current on the payment required by the lease-purchase contract, the Willifords had no right to terminate the lease-purchase contract or to interfere with their possession of the mobile home. They acknowledge that they may have breached the lot-rental contract, but they argue that that breach should not be imputed to the lease-purchase contract, an entirely separate agreement.

Moreover, they argue, even if their failure to meet all of their November obligation constituted a breach of the lease-purchase contract, that breach did not occur until 30 days after the end of November, or December 30, because the lease-purchase contract did not specify a due date for payments made under it. The lease-purchase contract states only that payments should be made “on the same day of each month”; it never explicitly states what that date is. The Willifords argue that it is clear that the monthly payments for the mobile home were due on the first day of each month based on (1) the separate lot-rental contract calling for payment of the amount due under that contract on the first day of each month and (2) an amortization schedule the Em-ertons were given when they signed the lease-purchase contract that listed the monthly payments as being paid on the first day of the month in which they were due. However, as the Emertons counter, the lease-purchase contract contains a merger clause stating that the contract “is the entire agreement of the parties and there are no other agreements either written or oral, other than is expressly set forth herein.” Therefore, they argue, the lot-rental contract and the amortization schedule cannot be considered when interpreting the lease-purchase contract.

When a contract is ambiguous, its meaning is an issue for the jury to determine. Kirkland & Co. of Anniston, P.C. v. A & M Food Serv., Inc., 579 So.2d 1278, 1282 (Ala.1991). After hearing testimony regarding the above arguments, the jury returned verdicts finding that the Willifords were liable for conversion and for breach of contract. The Willifords have not shown that “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, 512 So.2d at 1343; therefore, this Court will not disturb the jury verdicts. See Marsh v. Green, 782 So.2d 223, 227 (Ala.2000) (stating that this Court will “decline to substitute [its] judgment for that of the jury in matters dealing with credibility of witnesses and weight of the evidence”).

III.

The Willifords argue that the amount of damages awarded the Emertons was unsupported by the evidence. The jury awarded a total of $383,000 in damages: $25,000 in compensatory damages, interest, and costs on the breach-of-contract claim; and $8,000 in compensatory damages plus $350,000 in punitive damages on the conversion claim.

We pretermit any consideration of the Willifords’ argument that the evidence was insufficient to support the damages awarded on the breach-of-contract claim, because the Willifords failed to preserve that issue for our review. That argument was raised for the first time in the Willifords’ posttrial motion. As this Court stated in Industrial Technologies, Inc. v. Jacobs Bank, 872 So.2d 819, 825 (Ala.2003):

“It is well-established that ‘a timely posttrial motion [for a JML] is necessary to permit an appellate court to consider the sufficiency of the evidence.’ Great Atl. & Pac. Tea Co. v. Sealy, 374 So.2d 877, 880 (Ala.1979); see also Joseph Land & Co. v. Gresham, 603 So.2d 923, 927-28 (Ala.1992); King Mines Resort, Inc. v. Malachi Mining & Minerals, Inc., 518 So.2d 714, 716 (Ala.1987). However, ‘[i]t is a procedural absolute that a [posttrial motion for a JML], based on the “insufficiency of the evidence,” is improper, if the party has not moved for a [JML] on the same ground at the close of all the evidence.’ Barnes v. Dale, 530 So.2d 770, 776 (Ala.1988).”

In Industrial Technologies, the defendant, at the close of all the evidence, moved for a JML on six grounds; however, none of those six grounds included a challenge to the sufficiency of the evidence as to the compensatory damages. Id. Therefore, this Court held that “[b]ecause that argument was first raised in a posttrial motion for a JML, it is not reviewable.” 872 So.2d at 825-26.

In the present case, counsel for the Wil-lifords stated at the close of all the evidence that the “only motion [she] want[ed] to renew [was] for a directed verdict[] on the conversion.” Because this motion did not implicate the breach-of-contract claim, the Willifords’ challenge to the sufficiency of the evidence supporting the damages awarded on the breach-of-contract claim was raised for the first time when the Willifords filed their posttrial motion for a JML. Therefore, the issue was not preserved for appellate review.

The Willifords did preserve for review their argument that the $8,000 compensatory-damages award on the Emer-tons’ conversion claim was not supported by the evidence. At trial the Emertons presented evidence of only $2,180 in actual damages; on appeal, the Emertons claim that the extra $5,820 can be attributed to the mental anguish associated with the loss of items with sentimental value that were in the mobile home, including wedding gifts and wedding photographs. We agree. Therefore, we affirm the award of $8,000 in compensatory damages on the conversion claim. See New Plan Realty Trust v. Morgan, 792 So.2d 351 (Ala.2001) (compensatory-damages award of $100,000 affirmed where landlord converted tenant’s property worth $46,679, because the additional amount could be damages attributed to mental anguish).

Finally, the Willifords challenge the jury’s verdict awarding the Emertons $350,000 in punitive damages on their conversion claim. The Willifords first argue that we should remand this case to the trial court because that court failed to put in writing its reasons for denying their postjudgment motion for a remittitur, as required by Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986). Second, they argue that the award is excessive and outside the constitutional parameters set forth by the Supreme Court of the United States in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996).

After the judgment was entered on the jury’s verdict, the Willifords filed both a motion for a new trial or a JML and a motion for a remittitur styled as a “Motion to Review and Conduct Hearing or Receive Additional Evidence or Both on Punitive Damage[s] Award.” The trial court held a hearing and denied both motions in a one paragraph order. The order reads:

“This matter coming before the Court on Defendants’ Motion for New Trial or [JML] and Motion to Review and Conduct Hearing or Receive Additional Evidence or Both on Punitive Damagefs] Award and the Court having taken testimony, heard argument from counsel and receiving exhibits and caselaw and considering the same, it is hereby ordered that said motions are DENIED.”

It is unclear whether the trial court allowed the defendants to submit additional evidence on the propriety of the amount of the punitive-damages award, but even if it did consider such evidence and denied a remittitur, without a written statement of the reasons for that denial the requirements of Hammond have not been satisfied. As we explained in Love v. Johnson, 775 So.2d 127, 127-28 (Ala.2000), such a written statement is necessary before this Court can conduct a proper review on appeal:

“In Hammond [v. City of Gadsden, 493 So.2d 1374 (Ala.1986)], this Court required that a trial court ‘reflect in the record the reasons for interfering with a jury verdict, or refusing to do so, on the grounds of excessiveness of the damages.’ 493 So.2d at 1379; see also ALFA Mut. Ins. Co. v. Brewton, 554 So.2d 953 (Ala.1989). In Hammond, this Court stated the reason for the requirement:
“ ‘[T]he trial judge is better positioned to decide whether the verdict is ... flawed [as excessive]. He has the advantage of observing all of the parties to the trial — plaintiff and defendant and their respective attorneys, as well as the jury and its reaction to all of the others. There are many facets of a trial that can never be captured in a record, so that the appellate courts are at a special disadvantage when they are called upon to review [a] trial [court’s] action in this sensitive area....’
493 So.2d at 1378-79.”

When a trial court fails to put in writing its reasons for denying a motion to review a punitive-damages award for excessiveness, this Court’s practice has been to remand the cause for the trial court to enter an order in compliance with Hammond. See, e.g., Love, 775 So.2d at 128; Spencer v. Lawson, 815 So.2d 502 (Ala.2001); Southern Pine Elec. Coop. v. Burch, 878 So.2d 1120 (Ala.2003). We therefore remand this case to the trial court for the entry of an order that complies with the requirements of Hammond. On return to remand, the Willifords will have the opportunity to renew their argument that the punitive-damages award is outside the constitutional parameters set forth in Gore and Hammond/Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989), should they still wish to do so.

IV.

The Willifords also argue that the trial court erred in overruling their motion, made pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), challenging the jury’s composition. Specifically, the Willifords argue that the trial court erred in placing the burden on them to show that the Em-ertons’ strikes were racially motivated, when the burden should have been on the Emertons to show that the strikes were not racially motivated. This Court has consistently held that “[t]he burden of persuasion is initially on the party alleging a discriminatory use of peremptory challenges to establish a prima facie case of discrimination.” Thomas v. Diversified Contractors, Inc., 578 So.2d 1254, 1255 (Ala.1991). Once a prima facie case has been established, the burden then shifts to the other party to provide a legitimate nondiscriminatory reason for the challenges. Id. In the present case, the trial court correctly placed the burden on the Willifords to establish a prima facie case of discrimination. When the only argument that the Willifords offered in support of their Batson motion was the fact that the impaneled jury consisted of 1 white juror and 11 black jurors, the trial court concluded that the Willifords had not established a prima facie case of discrimination and denied the motion.

A trial court’s ruling on a Batson motion is entitled to great deference, and an appellate court will not reverse a judgment because of such a ruling unless that ruling is shown to be clearly erroneous. Ex parte Branch, 526 So.2d 609, 625 (Ala.1987). The Willifords have failed to make such a showing. In Sharrief v. Gerlach, 798 So.2d 646, 655 (Ala.2001), this Court stated that “ ‘ “ ‘it is important that the defendant come forward with facts, not just numbers alone, when asking the [trial] court to find a prima facie case of ... discrimination.” ’ ” ’ (Quoting McElemore v. State, 798 So.2d 693, 696 (Ala.Crim.App.2000), quoting other cases.) This Court has repeatedly listed the different ways a party can establish a prima facie case of discrimination for purposes of a Batson claim; however, the Willifords instead relied upon “numbers alone.” For that reason, the trial court properly determined that the Willifords had not established a prima facie case and denied their Batson motion without requiring the Emertons to provide race-neutral reasons for their strikes. See also Ex parte Trawick, 698 So.2d 162, 168 (Ala.1997) (“Without more, we do not find that the number of strikes ... used to remove women from the venire is sufficient to establish a prima facie case of gender discrimination.”).

V.

Finally, the Willifords argue that the trial court improperly allowed the trial to proceed over their objection that the Emertons’ counsel had a conflict of interest that prohibited him from serving as their counsel in this matter. At the conclusion of voir dire, the Willifords informed the court that they had consulted with William Smith, an attorney who was then assisting the Emertons’ primary counsel, Charles Reynolds, with the trial, about representing them in this case. Smith acknowledged meeting with the Willifords about representing them in a case, but stated that he did not remember it being the present case and that he never represented them. Nevertheless, because of Smith’s consultation with the Willifords, the court found that Smith had a conflict and excused Smith from the case.

While acknowledging that the trial court promptly excused Smith from the case upon learning of the conflict, the Willifords now argue that the court erred in failing also to excuse Reynolds from the case. In support of this proposition, the Willifords cite Green v. Montgomery County, 784 F.Supp. 841 (M.D.Ala.1992) (holding that under Rules 1.9 and 1.10, Ala. R. Prof. Cond., an attorney and his law firm were disqualified from participating in litigation where the attorney had discussed the underlying facts of the case with the opposing party while considering whether to represent that party). However, the Em-ertons argue that the record shows that the Willifords waived any objection they had to Reynolds’s continued participation in the trial.

After the court determined that Smith would have to be excused from the case, the Willifords’ attorneys, Susan Harmon and Thomas Worthy, engaged in the following exchange with the court:

“THE COURT: Now, being that he’s not involved anymore, are you waiving any objection to him having been here to this point, though?
“MS. HARMON: No, sir.
“THE COURT: You’re not?
“MS. HARMON: I don’t have a problem with him being here at all as far as sitting here. He hasn’t questioned the jury.
“THE COURT: Hold on. We’re not talking about that. That’s not what we’re talking about, Susan. What I’m asking is are you waiving any conflict, any objection to him having been here to this point?
“MR. WORTHY: We’ll reserve that.
“THE COURT: Y’all will reserve that?
“MR. WORTHY: Well, what my concern is, is that obviously if he’s got a conflict of interest, he shouldn’t have been in the case at all.
“THE COURT: Well, that’s what we’re about to resolve.
“MR. WORTHY: Okay.
“MS. HARMON: What Judge is saying, up until this point, Bill [Smith] has not questioned the jury or spoken to them. I don’t have a problem with that.
“THE COURT: Yeah, that’s what I’m talking about. I just want to make sure that we don’t have any problem as to his appearance in this case for the [Emertons] up to this point.
“MS. HARMON: No.
“MR. WORTHY: No, none at this point.
“MS. HARMON: Because he has not even voir dired the jury.
“THE COURT: Okay. Well, then, Bill, I will have to excuse you from this case, then.
“MR. WORTHY: Thank you, Judge.
“THE COURT: Okay. Thank you.”

As this exchange indicates, the Willi-fords’ attorneys did not move the trial court to disqualify Reynolds. They did initially indicate that they would not waive any objections associated with Smith’s participation in the trial; however, after discussing the matter further, the judge again stated that he wanted “to make sure that we don’t have any problem as to [Smith’s] appearance in this case for the [Emertons] up to this point.” The Willifords’ attorneys then responded “No” and “No, none at this point” and the judge proceeded with jury selection. At no point did the Willifords object to continuing the trial. Because they failed to object at that time, they cannot now raise the issue on appeal.

YI.

The trial court’s order denying the Willi-fords’ motion for a new trial is affirmed. We remand the cause to the trial court, however, for that court to take such steps as are necessary to enter an order in compliance with Hammond. The trial court is instructed to file a return to this Court within 56 days of the release of this opinion, after which the Willifords will have 14 days to file a supplemental brief, if they choose to do so. The Emertons will then have seven days to respond, and the Willifords may then file a reply brief within seven days of the Emertons’ response.

AFFIRMED IN PART; REMANDED WITH DIRECTIONS.

HOUSTON, LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

      . The $15 monthly fee for water covered only the first 3,000 gallons. The Emertons had to pay an additional amount for any water they used in excess of 3,000 gallons.

      . The Emertons allege that the payment was to be applied first to fulfill their $200 mobile-home payment, with the remainder then being applied to the other fees. However, there is no evidence indicating that they informed the Willifords that the payment, was so earmarked.

      . At trial, Scott Emerton gave contradictory testimony as to whether he received the November 23 notice, the December 1 notice, or both. However, it is undisputed that he received at least one of the notices while he was at the mobile home picking up mail.

      . At the conclusion of testimony, the Emer-tons withdrew their tort-of-outrage and trespass claims.

      . Rule 50, Ala. R. Civ. P., as amended in 1995, renamed the "motion for a judgment notwithstanding the verdict” as a "renewed motion for a judgment as a matter of law.”

      . Rule 50, Ala. R. Civ. P., as amended in 1995, renamed the "motion for a directed verdict” as a "motion for a judgment as a matter of law.”

      . At the close of the Emertons’ case, defense counsel had moved for a "directed verdict,” actually a JML, see note 6, on the conversion count on the theory that the Emertons had failed to prove ownership of any of the property allegedly converted.

      . The Emertons concede that their failure to testify as to the value of the sentimental items precludes them from recovering an award based on the actual or alleged sentimental value of the items. See Dependable Ins. Co. v. Kirkpatrick, 514 So.2d 804 (Ala.1987) (holding that an award for compensatory damages cannot be based on speculation).

      . " '[I]n all cases wherein a verdict for punitive damages is awarded, the trial court shall, upon motion of any party, either conduct hearings or receive additional evidence, or both, concerning the amount of punitive damages.’ ” Byrd v. Petelinski, 757 So.2d 400, 401 (Ala.2000) (quoting § 6 — 11—23(b), Ala. Code 1975) (emphasis omitted).