author: CHANDLER, J.,

text:
    Sandra K. DOMINQUEZ and Thomas Garner, Appellants v. Jeff PALMER, Individually, Mortgage Equity Lending, Inc., Wes Brewer d/b/a Wes Brewer Cattle Company and Wes Brewer, Individually, Appellees.
    No. 2006-CA-01752-COA.
    Court of Appeals of Mississippi.
    Nov. 27, 2007.

      Orvis A. Shiyou, Hattiesburg, attorney for appellants.
    Michael Adelman, Hattiesburg, attorney for appellees.
    Before KING, C.J., CHANDLER and CARLTON, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. On September 15, 2006, the Circuit Court of Forrest County granted a summary judgment in favor of the appellees, Jeff Palmer, individually, Mortgage Equity Lending, Inc., Wes Brewer d/b/a Wes Brewer Cattle Co., and Wes Brewer, individually. Aggrieved, the appellants, Sandra Dominquez and Thomas Garner, appeal. They assert that summary judgment was improper because they presented evidence on the following issues:

I. The standard of review is de novo, and the motion for summary judgment was not supported by affidavits.
II. There existed between the parties an implied oral brokerage contract with certain and definite terms.
III. The appellees failed to use reasonable care in seeking a loan on their behalf, and there was no evidence that the appellees used their best efforts.
IV. The appellees committed a breach of fiduciary duty, fraud, and a violation of the Mississippi Consumer Loan Broker Act.
V. The appellees waived the right to enforce statutorily mandated arbitration.
VI. The appellees should reimburse them for insufficient funds checks.
VII. They suffered emotional distress because of the actions of the appel-lees, and there was evidence to support negligent supervision and piercing the corporate veil.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Sometime in the fall of 2001, Sandra Dominquez and her husband, Thomas Garner, contacted Mortgage Equity Lending, Inc. about obtaining an equity loan against their home. They claim to have initially met with Mortgage Equity’s agent, Wes Brewer, who remained their contact with the company throughout the following events. At this first meeting, they allege that they completed a loan application and discussed the financing terms.

¶ 4. At the next meeting with Brewer, Dominquez claims that he promised that she and her husband would be able to close on a loan by Thanksgiving of that year. When this date passed, Dominquez said that Brewer assured her that it would close soon. After this, she claims he continued to inform her of more closing dates only to change them as they arrived.

¶ 5. The record reflects that Brewer could not secure a loan for the couple, and it also shows that he did attempt to get them a loan. As pointed out by testimony, and as found by the judge, Dominquez’s low credit score was the reason that she could not get a loan from either Mortgage Equity or from another lender, Southeastern Financing Co. Prior to requesting the services of Mortgage Equity, Dominquez and Garner had sought the services of Southeastern Financing, which was also unable to obtain financing for them. When Brewer later applied for a loan solely in Garner’s name, however, he was able to secure $80,000 worth of financing.

¶ 6. Garner then used the $80,000 loan to buy his wife’s house for $127,000. In purchasing the house, however, it was questionable why the warranty deed represented Garner and Dominquez as single and listed the home as rental property, when they were actually married and the house was their residence.

¶ 7. Dominquez and Garner testified that they were always free to seek financing from another lender. They alleged that they did not go elsewhere because they relied on Brewer’s assurances that a loan would be forthcoming. It was because of those continued promises, they claimed, that their already bad financial condition worsened.

¶ 8. While these events were ongoing, Dominquez and Garner received checks from Wes Brewer and Wes Brewer Cattle Co. that they claim were intended to allow them to pay their living expenses during the ongoing loan process. Nevertheless, they admitted that some of the checks were actually payment to Garner for services that he performed for Brewer. They could not specify the specific purpose for each check nor which checks remained outstanding.

¶ 9. On April 9, 2003, Dominquez and Garner filed suit. On May 19, 2004, Palmer and the other appellees filed a motion for summary judgment. The judge entered an order on September 15, 2006, granting summary judgment against Dom-inquez and Garner and dismissing their complaint with prejudice.

ISSUES AND ANALYSIS

I. Standard of review for summary judgment

¶ 10. We review the trial court’s grant of a motion for summary judgment under a de novo standard. Pride Oil Co. v. Tommy Brooks Oil Co., 761 So.2d 187, 190(¶ 9) (Miss.2000). Furthermore, this Court must review all the evidentiary material before it in a light most favorable to the party against whom the motion was granted. Id.

¶ 11. Rule 56(b) of the Mississippi Rules of Evidence provides that, “A party against whom a claim ... is asserted ... may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.” “As to issues on which the non-movant bears the burden of proof at trial, the movant needs only to demonstrate an absence of evidence in the record to support an essential element of the movant’s claim.” Pride Oil, 761 So.2d at 191(¶ 10).

¶ 12. Mere allegations are insufficient to defeat a motion for summary judgment. Richardson v. Norfolk S. Ry., 923 So.2d 1002, 1008(¶ 8) (Miss.2006). The party opposing the motion must set forth specific facts that show that a genuine issue of fact exists. Id. To survive summary judgment, a claim must be based on more than a scintilla of evidence. Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1214 (Miss.1996). “It must be evidence upon which a fair-minded jury could return a favorable verdict.” Id. Unsubstantiated assertions are insufficient. Cong Vo Van v. Grand Casinos of Miss., Inc., 767 So.2d 1014, 1024(¶ 27) (Miss.2000).

¶ 13. In this case, Palmer’s motion for summary judgment sufficiently alleged that Dominquez had not presented any genuine issues of material fact. The burden then fell on Dominquez to present affirmative evidence to show that there were such genuine issues of material fact. Pride Oil, 761 So.2d at 191(¶ 10). Accordingly, the claim that summary judgment was improper because Palmer failed to support his motion with an affidavit is without merit.

II. Oral contract

¶ 14. Dominquez next argues that the trial court’s finding, that no contract existed because she could not identify any terms “sufficiently definite to be enforceable,” was in error. She claims that she presented evidence of an implied oral brokerage contract with certain and definite terms.

¶ 15. The only authority cited by Dominquez to support her position is the case of Carmichael v. Agur Realty Co., 574 So.2d 603, 606-07 (Miss.1990). In Carmichael, the supreme court affirmed the finding of an implied brokerage contract when a purchaser refused to pay the real estate broker who assisted him in the purchase of a hotel. Id. at 610.

¶ 16. Carmichael is easily distinguishable from the case at hand in that it involved a real estate broker’s suit to recover fees for services that he actually provided. In Carmichael, the parties signed a commission agreement as some evidence of an agreement. The issue in that case was a lack of a formal brokerage contract. This case differs from Carmichael in that Dominquez was not seeking restitution for services that were performed. Here, Dominquez claims there was an oral contract that required Palmer to obtain a mortgage loan for her within thirty days. However, there was no formal writing, and none of the parties can point to specific terms of the alleged contract to which they were to be held.

¶ 17. “A contract that arises from the conduct of the parties, also known as a contract implied in fact, has the same legal effect as an express contract. It carries as much weight as, and is as binding as an express contract.” Franklin v. Franklin, 858 So.2d 110, 120(¶ 34) (Miss.2003) (citing Magnolia Fed. Sav. & Loan Ass’n v. Randal Craft Realty Co., 342 So.2d 1308, 1312 (Miss.1977)). The supreme court has previously held that “any conduct of one party from which the other party may draw the inference of a promise is effective as such and the conduct of the parties is viewed as a reasonable man would to determine the existence or not of the contract implied in fact.” Id. at 121(¶ 35) (citing Cooke v. Adams, 183 So.2d 925, 927 (Miss.1966)).

¶ 18. The testimony from Dominquez and Garner revealed that they dealt with Brewer who allegedly promised that, through Mortgage Equity, he would obtain a loan for them. They claim that, sometime in the fall of 2001, Brewer promised he could get a loan at a promised rate within thirty days. Under the alleged oral contract, Brewer promised to use his best efforts to get a loan for Dominquez within the thirty days in exchange for a brokerage fee. Brewer nor any of the appellees, however, received any benefit from the alleged contract. Furthermore, Domin-quez was not bound to the services of Brewer. It was undisputed that she was free to seek out the services of another mortgage broker at any time.

¶ 19. Dominquez ignores the fact that Brewer did attempt to get a loan and, ultimately, he was successful in obtaining some financing in Garner’s name. Instead she complains that he promised to have the loan within the thirty days and that he never even tried to find a loan until after that period had expired. The trial court’s findings were that Dominquez’s poor credit rating was responsible for Brewer’s initial inability to obtain a loan for her. Supporting this finding was the fact that, before contacting Brewer, she had previously approached Southeast Financing Co. about a loan, but they were also unable to help her.

¶20. Even taking the evidence in the light most favorable to Dominquez, we cannot say the trial court was in error in granting summary judgment. What she provided to the court were undeveloped assertions that lacked any specific evidence and which were insufficient to create any questions of material fact.

¶ 21. According to Dominquez’s argument, she and Brewer perfected a contract “[i]n the fall of 2001,” which required Brewer to secure a loan within thirty days. There was no evidence, however, beyond Dominquez’s allegations that there was a contract between the parties, nor any evidence as to any specific contractual provisions. If she was dissatisfied with the services of Mortgage Equity, she was free to seek a loan from another lender at any time. Also, Mortgage Equity did not receive any benefit from the alleged contract. Upon applying a de novo review of this issue, we do not find that there was sufficient evidence of a contract to withstand summary judgment. We find the trial judge was not in error in granting summary judgment against Dominquez. Accordingly, this issue is without merit.

III. Whether Brewer used reasonable efforts to obtain a loan

¶ 22. In regard to the alleged oral contract, Dominquez next claims that Brewer did not use reasonable care nor his best efforts in seeking a loan on her behalf. Dominquez does not, however, specify what Brewer should have done to fulfill the alleged best effort requirement. According to her brief, it seems her complaint was essentially that Brewer did not obtain a loan for her within thirty days.

¶23. Dominquez asks us to draw a parallel between this case and the case of Stringer v. Bufkin, 465 So.2d 331 (Miss.1985). In Stringer, the supreme court held that summary judgment for an insurance agent was improper when he had told plaintiffs that their uninsured motorist coverage had been extended immediately. Id. at 334. The plaintiffs later were in an accident and sued when they learned that they had no uninsured motorist coverage. Id. at 332.

¶ 24. Stringer is not supportive of Dominquez’s claim that Brewer is liable because he failed to use his best efforts in attempting to secure a loan for her. As we stated previously, there is nothing in the record, beyond the vague and unsupported allegations of Dominquez and Garner, that tends to show that a contract existed between them and Mortgage Equity. Not only was there no specific evidence of a contract, but Dominquez also failed to demonstrate how, beyond exceeding the allegedly agreed-to thirty days, Brewer did not use his “best efforts” to find a loan. She merely asserts that Brewer’s failure to secure a loan within the thirty days means he did not use his best efforts. This argument, however, ignores Dominquez’s admittedly bad credit history and the fact that, just prior to contacting Brewer, Southeastern Financing had also been unable to get a loan for Dominquez.

¶ 25. In light of the fact that Domin-quez presented no evidence of how Brewer failed to use his best efforts in his attempts to secure a loan for her, we find that the trial court properly granted summary judgment on this issue. Accordingly, we find it is without merit.

IV. Breach of fiduciary duty, fraud, and violation of the Mississippi Consumer Loan Broker Act

A. Fiduciary duty

¶ 26. In Mississippi, a fiduciary relationship may arise in the following situations:

(1) the activities of the parties go beyond their operating on their own behalf, and the activities [are] for the benefit of both; (2) where the parties have a common interest and profit from the activities of the other; (3) where the parties repose trust in one another; and (4) where one party has dominion or control over the other.

Robley v. Blue Cross/Blue Shield, 935 So.2d 990, 995(¶ 12) (Miss.2006) (quoting Univ. Nursing Assocs., PLLC v. Phillips, 842 So.2d 1270, 1274(¶ 9) (Miss.2003)). We do not ordinarily impose fiduciary duties upon contracting parties. Id. at 994 — 95(¶ 11). Furthermore, as a matter of law, a mortgagor-mortgagee relationship is usually not a fiduciary relationship. Merchants & Planters Bank v. Williamson, 691 So.2d 398, 403 (Miss.1997). In Williamson, the court noted that to hold otherwise would be “to impose fiduciary concepts upon what is, in many cases, a standard contractual relationship between parties with fundamentally different interests.” Id. at 404.

¶ 27. We do not find there were any facts here to suggest that a fiduciary relationship arose between Dominquez and Brewer or the other appellees. As in Williamson, this was merely an arms-length business transaction, and there was no evidence to suggest that anyone exercised any dominion and control over Dominquez.

B. Fraud

¶ 28. In regard to Dominquez’s claim of fraud, she must put on evidence of the following:

(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of the truth; (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated; (6) the hearer’s ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; and (9) his consequent and proximate injury.

Hobbs Auto., Inc. v. Dorsey, 914 So.2d 148, 153(¶ 18) (Miss.2005) (quoting Spragins v. Sunburst Bank, 605 So.2d 777, 780 (Miss.1992)). Rule 9(b) of the Mississippi Rules of Civil Procedure further provides that, in all allegations of fraud, “the circumstances constituting fraud or mistake shall be stated with particularity.”

¶ 29. With regard to the elements of a claim of fraud, Dominquez’s claim contains no allegations of specific instances of fraud. As such, we do not find it was error to grant summary judgment on this issue; therefore, it is without merit.

C. Mississippi Consumer Loan Broker Act

¶ 80. Dominquez contends that Brewer and the other appellees violated section 81-19-23 of the Mississippi Code Annotated (Supp.2007). Section 81-19-23 provides, in pertinent part, as follows:

(1) No consumer loan broker may:
(g) Make a false promise in order to influence or induce a person to use the consumer loan broker’s services, whether made through agents, employees, advertising or otherwise;
(h) Misrepresent or conceal essential or material facts regarding the consumer loan broker’s services on any transaction under this chapter.

¶ 31. We reiterate that, besides her allegations, Dominquez has not put forth any specific evidence of any wrongdoing by the appellees that would be sufficient to withstand summary judgment. This reasoning is equally applicable to this issue; therefore, we find it to be without merit.

V. Waiver of arbitration

¶ 32. Dominquez next claims that it was improper to grant summary judgment on her claim under Section 75-24-15 of Mississippi Code Annotated (Rev.2000). In support of this she cites Phillips, 842 So.2d at 1276(¶ 17), for the proposition that a party who actively participates in litigation waives the right to enforce arbitration. She argues that this Court should again draw a parallel, this time between Phillips and the present case.

¶ 33. We find Phillips to be inapplicable to the case at hand. Phillips involved a private arbitration agreement, whereas section 75-24-15(2) contains a statutory requirement with which a plaintiff must comply. In Phillips, the supreme court ultimately found that the defendant had not waived his right to compel arbitration, either by participating in litigation or by delaying in his demand for arbitration. Phillips, 842 So.2d at 1277-78 (¶¶ 22, 27). While we do not find Phillips to be applicable, we, nevertheless, point out that Palmer, in his answer to the complaint and throughout the proceedings, has consistently asserted that Dominquez failed to comply with the statutory requirements.

¶ 34. Section 75-24-15(2) provides as follows: “In any private action brought under this chapter, the plaintiff must have first made a reasonable attempt to resolve any claim through an informal dispute settlement program approved by the Attorney General.” Dominquez admits that she did not take any steps to resolve her claim through informal resolution as required by the statute. Accordingly, we find the trial court did not err in granting summary judgment on this claim. This issue is without merit.

VI. Insufficient funds checks

¶ 35. Between Dominquez and Garner, neither knew about the specifics of the checks, and each one stated that the other was the person to ask about them. They admitted that Brewer had “covered” some of the checks but could not identify which checks fell into this category. They also were not able to specify the purpose of each check, namely, whether they were payment for Garner’s services or some type of loan to pay the couple’s expenses during the loan process.

¶ 36. Because Dominquez put on no evidence regarding which of the checks remained unpaid and whether the checks were payments to Garner for services rendered or for loans, as alleged, we do not find it was improper to grant summary judgment on this issue. This issue is, therefore, without merit.

VII. Emotional distress, negligent supervision, and piercing the corporate veil

A. Emotional distress

¶ 37. The trial court dismissed this issue as an element of damages and not an actual claim. Because all Dominquez’s claims were dismissed through summary judgment, we agree that it was not proper to consider whether she could be awarded damages for emotional distress.

B. Negligent supervision and piercing the corporate veil

¶ 38. Dominquez presented no evidence that Mortgage Equity or Palmer were negligent in supervising Brewer. The same is true of her claim that the court should have pierced the corporate veil of Mortgage Equity in order to hold Palmer liable.

¶ 39. Dominquez’s claims for emotional distress, negligent supervision, and piercing the corporate veil alleged no issues of material fact, so they were properly dismissed. This issue is without merit.

¶ 40. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    1994 MERCURY COUGAR, Vin # 1MELM62WORH628952 (Edna Jones), Appellant, v. TISHOMINGO COUNTY, Mississippi, Appellee.
    No. 2006-CA-01773-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2007.

      John R. White, fattorney for appellant.
    Richard D. Bowen, attorney for appel-lee.
    Before KING, C.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. This appeal arises from a forfeiture proceeding in the Circuit Court of Tishom-ingo County involving a vehicle owned by the appellant, Edna Jones. Tishomingo County seized the vehicle after Mrs. Jones’s son, J.C. Jones, was arrested for selling prescription narcotics to undercover officers employed by the Tishomingo County Sheriffs Office while driving the vehicle. The circuit court ordered the vehicle forfeited to Tishomingo County. Aggrieved, Mrs. Jones appeals on the grounds that the circuit court erred in placing the burden of proof on her to show that she had no knowledge that her son was using the vehicle for drug-related activities and that the court erred in forfeiting the vehicle. We agree and therefore reverse the judgment of the circuit court and render judgment in favor of Mrs. Jones.

FACTS AND PROCEDURAL HISTORY

¶2. On May 2, 2006, J.C. Jones was arrested by the Tishomingo County Sheriffs Department for selling morphine and Percocet pills to undercover officers. At the time of his arrest, J.C. Jones was driving a 1994 green Mercury Cougar, VIN 1MELM62WORH628952, titled to his mother, Edna Jones. On or about May 31, 2006, the vehicle was seized from the home of Mrs. Jones, where J.C. was living.

¶ 3. On July 14, 2006, Tishomingo County filed a petition for forfeiture, and a hearing was held on the petition on September 10, 2006. At the hearing, the County’s one and only witness, officer Jason Williamson of the Tishomingo County Sheriffs Department, testified that he, officer Parmer, and agent Shoney Smith of the Mississippi Department of Transportation purchased four morphine pills and two Percocet pills from J.C. Jones. Officer Williamson testified that, at the time of the arrest, J.C. Jones was driving Mrs. Jones’s 1994 Mercury Cougar, and that the vehicle was later seized because it was either used or intended for use in violation of Mississippi controlled substances law. Officer Williamson further testified that, according to the information he had, the source of the morphine and Percocet was J.C. Jones’s father, for whom the pills were prescribed by the VA hospital. When asked whether there were any other purchases of controlled substances associated with J.C. Jones, Williamson replied that there were, but he provided no further details in this regard.

¶ 4. After the county rested, Mrs. Jones, acting pro se, had her husband, Thomas Jones, make a statement under oath. Mr. Jones testified that he and his wife were out of town at the time of J.C.’s arrest, and that they were not aware that J.C. was selling drugs nor were they aware that he was even using the vehicle. Mr. Jones stated that the only time J.C. was supposed to be using the car was when he and the couple’s other son, Thomas Jones, Jr., were driving to and from work. Mr. Jones testified that he had prescriptions for Per-cocet and morphine and approximately ten other drugs due to his heart and lung problems. According to Mr. Jones, J.C. was not obtaining drugs from him, although J.C. had stolen his father’s pills from the mailbox in the past. Mr. Jones testified that, when he discovered J.C. was stealing from him, he began having his pills held at the post office until he was able to pick them up. When questioned about J.C.’s prior convictions, Mr. Jones testified that J.C. had previously been convicted of driving under the influence, but that he was not aware of any prior felony or drug convictions. Mr. Jones testified that J.C. was obtaining the drugs from an individual named Buddy and that J.C. told as much to officers Williamson and Parmer.

¶ 5. Mrs. Jones then took the stand and stated that she and her husband were out of town at the time J.C. was arrested and that she was not aware that J.C. was using her vehicle to sell drugs. She stated that J.C. and his brother needed a means of traveling to and from work so she began allowing them to use the vehicle approximately four to six months previously and that this was the only time her sons were using the vehicle. According to Mrs. Jones, she had J.C. arrested for domestic violence, but she could not recall any other convictions.

¶ 6. Mrs. Jones stated that, when her husband’s medicine began to go missing, the couple suspected that J.C. was responsible as she stated that J.C. had a bottle of Valium that was taken from the mailbox. As a result, Mrs. Jones confirmed that she and her husband began having the pills held at the post office and carrying the medicine with them in a bag everywhere they went. Mrs. Jones stated that this may have occurred three months previously, possibly around the time J.C. was arrested.

¶ 7. According to Mrs. Jones, because J.C. does not have a driver’s license, she and her husband left the keys to the vehicle in the control of Thomas, Jr. who was to drive himself and J.C. to work. She testified that J.C. was not allowed to drive the vehicle nor was she aware that he was driving the vehicle. Mrs. Jones stated that J.C. lost his license after he was arrested for driving under the influence in approximately November of 2005 and that, at the time he got the DUI, J.C. was driving another of her vehicles without her permission. When questioned about whether she knew of J.C.’s propensity to drive vehicles left available to him, Mrs. Jones stated that she trusted Thomas, Jr. with the vehicle when they left to go out of town and that, to her knowledge, he, not J.C., had been driving the vehicle.

¶ 8. The circuit court found that Mrs. Jones knew or should have known that her vehicle was being used in the transportation or facilitation of the sale of controlled substances and, therefore, the vehicle should be forfeited to Tishomingo County. In so finding, the court relied on the following facts: (1) Mrs. Jones suspected that J.C. was stealing her husband’s medications during the time period in which J.C. was using the vehicle and at or around the time he was arrested, and (2) Mrs. Jones was aware that J.C. had used another of her vehicles without her permission on a prior occasion. Mrs. Jones now appeals on the following grounds: (1) the circuit court impermissibly placed the burden of proof on her to show that she did not have knowledge of or consent to her son’s use of the vehicle for drug-related activity and (2) the circuit court erred in finding that the evidence showed that she knew that her son was using the vehicle for drug-related activity. We reverse the ruling of the circuit court and render judgment in favor of Mrs. Jones.

STANDARD OF REVIEW

¶ 9. “The appropriate standard of review in forfeiture cases is the familiar substantial evidence/clearly erroneous test.” Galloway v. City of New Albany, 735 So.2d 407, 410(¶ 15) (Miss.1999) (citing City of Meridian v. Hodge, 632 So.2d 1309, 1311 (Miss.1994)). “This Court will not disturb a circuit court’s findings unless it has applied an erroneous legal standard to decide the question of fact.” Id.

DISCUSSION

I. WHETHER THE CIRCUIT COURT INCORRECTLY PLACED THE BURDEN OF PROOF ON MRS. JONES, THEREBY REQUIRING HER TO PROVE THAT SHE DID NOT HAVE KNOWLEDGE OF OR CONSENT TO HER SON’S USE OF THE VEHICLE FOR DRUG-RELATED ACTIVITY

¶ 10. Mrs. Jones argues that the circuit court erred in requiring her to prove that she had no knowledge that her son J.C. was using her vehicle to facilitate the sale of controlled substances rather than requiring the County to prove that she had such knowledge.

¶ 11. Mississippi’s forfeiture statute, Mississippi Code Annotated section 41-29-153, states as follows in pertinent part:

(a) The following are subject to forfeiture:
(4) All conveyances, including aircraft, vehicles or vessels, which are used, or intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment of property described in paragraph (1) or (2) of this section, however:
B. No conveyance is subject to forfeiture under this section by reason of any act or omission proved by the owner thereof to have been committed or omitted without his knowledge or consent. ...

Miss.Code Ann. § 41-29-153 (Rev.2005). Thus, the statute provides for an ‘“innocent owner’ exception.” Galloway, 735 So.2d at 411(¶ 22). With regard to burden of proof, the Mississippi Supreme Court has stated the following:

Where, as in the case sub judice, an owner of property files a verified answer denying that property is subject to forfeiture, the burden is on the State to prove to the contrary. Necessarily the State must demonstrate, by a preponderance of the evidence, that the owner had knowledge of or consented to the illegal use of his property for drug-related activities.... In any event, though not unmindful of the sound policy behind the narcotics forfeiture statutes, we must hold as we have previously, that “facts merely creating a suspicion that the owner had knowledge of the driver’s illegal activity are inadequate to support a forfeiture.” Ervin [v. State], 434 So.2d [1324], at 1326 [(Miss.1983) ]. We said in Ervin that the “rationale behind this forfeiture statute is based on the observation that forfeiture of automobiles will hamper narcotics trafficking by striking at its source of mobility.” Id. at 1326. Seizing the property of an owner who has not been proven to be anything other than innocent would not promote that policy.

Galloway, 735 So.2d at 411(¶ 23) (quoting Curtis v. State, 642 So.2d 381, 385-86 (Miss.1994)); Miss.Code Ann. § 41-29-179(2) (Rev.2005) (“If the owner of the property has filed an answer denying that the property is subject to forfeiture, then the burden is on the petitioner to prove that the property is subject to forfeiture. However, if an answer has not been filed by the owner of the property, the petition for forfeiture may be introduced into evidence and is prima facie evidence that the property is subject to forfeiture. The standard of proof placed upon the petitioner in regard to property forfeited under the provisions of this article shall be by a preponderance of the evidence”).

¶ 12. In the instant case, Mrs. Jones filed a response to Tishomingo County’s petition for forfeiture; thus, the burden was on the county to prove by a preponderance of the evidence that Mrs. Jones had knowledge that her son J.C. was using her vehicle for drug-related activities. In arguing that the circuit court incorrectly shifted the burden of proof to her, Mrs. Jones relies on the following statement of the court: “The Court finds that the owner of this vehicle, Edna Jones, has not met her burden of proof that she did not have knowledge or did not give consent of its use.” The county, however, relying the following statements of the trial judge, argues that the court did not place the burden of proof on Mrs. Jones:

[The] Court finds and determines that there is proof, preponderance of the evidence, that this 1994 Mercury Cougar vehicle was used [p]ursuant to the definition of Section 41-29-153 to facilitate the sale of a controlled substance.
The Court finds from the testimony of Mr. and Mrs. Jones that it is evident to the court that the parties, at least through Mrs. Jones’ testimony, the Court heard proof that she became very suspicious that the missing medications were being taken by her son, John Colt Jones, and that this was about the time of the arrest in the John Colt Jones case, which was on or about May 2006, and that it was during that period of time that the vehicle was being used by her sons to travel back and forth to Corinth for their work.
That being the case, the Court is convinced that Mrs. Jones knew or should have known that the vehicle was being used in the transportation or facilitation of the sale of controlled substance [sic], and it will be forfeited to the County of Tishomingo.

We agree with Mrs. Jones that, if the circuit court did in fact place the burden upon her to prove that she had no knowledge that J.C. was using her vehicle for drug-related activities, such constituted reversible error. However, although the court stated that Mrs. Jones had failed to meet her burden in proving that she had no knowledge of J.C.’s activities, the above portions of the court’s ruling cited by the county could reasonably be interpreted as indicating that the court found that a preponderance of the evidence suggested that Mrs. Jones knew that J.C. was using her vehicle for drug-related activities, which would suggest that the court correctly placed the burden of proof on the county. Thus, it is difficult to discern from the court’s ruling whether the court allocated the burden of proof to the correct party. We need not resolve this issue, however, because, regardless of which party the court placed the burden of proof upon, as will be discussed below, we find that a preponderance of the evidence does not support a finding that Mrs. Jones knew of or consented to J.C.’s use of her vehicle for drug-related activities and therefore that the forfeiture of the vehicle was unwarranted.

II. WHETHER THE CIRCUIT COURT ERRED IN FORFEITING MRS. JONES’S VEHICLE BASED ON THE FINDING THAT THE EVIDENCE INDICATED THAT MRS. JONES KNEW THAT HER SON J.C. WAS USING HER VEHICLE FOR DRUG-RELATED ACTIVITIES

¶ 13. As was previously discussed, Tishomingo County had the burden of proving that Mrs. Jones had knowledge that J.C. was using the vehicle for drug-related activities. Mrs. Jones argues that the county failed to meets its burden and therefore that her vehicle should not have been forfeited. In finding that Mrs. Jones knew or should have known that her vehicle was being used for the transportation or facilitation of the sale of controlled substances, the circuit court relied on the following factors: (1) Mrs. Jones became very suspicious that her husband’s missing medications were being taken by J.C. around the time that J.C. and his brother were using the car to travel back and forth to work and at the time of J.C.’s arrest, and (2) Mrs. Jones was aware that, in November of 2005, J.C. had used another of her vehicles without permission after she had advised him that he could not drive the car because he did not have a driver’s license.

¶ 14. The Mississippi Supreme Court has held that “ ‘[forfeitures are not favored in this state; therefore, before a forfeiture may be ordered, it must come within the terms of the statute which imposes the liability of forfeiture.’” Galloway, 735 So.2d at 411(¶ 24) (quoting Jackson v. State, 591 So.2d 820, 823 (Miss.1991)); see also Saik v. State, 473 So.2d 188, 191 (Miss.1985) (citing Zambroni v. State, 217 Miss. 418, 64 So.2d 335 (1953) (“Forfeiture statutes are penal in nature and must be strictly construed”). The court has also noted its concern that “forfeiture statutes ha[ve] the capacity ‘not only [of reaching] the property of criminals, but also ... that of innocent owners who did all they reasonably could to prevent the misuse of their property.’” Parcel Real Prop. v. City of Jackson, 664 So.2d 194, 198 (Miss.1995) (citing Curtis, 642 So.2d at 385)).

¶ 15. In Ervin v. State, 434 So.2d 1324 (Miss.1983), a husband was arrested for possession of a controlled substance with intent to deliver while in possession of his wife’s car. The Mississippi Supreme Court reversed the lower court’s finding that the wife had knowledge of the husband’s drug-related activities based on (1) her knowledge of the husband’s prior drug convictions, (2) the fact that the husband had access to her car keys, and (3) the fact that the husband had used her car on previous occasions. Id. at 1325-26. The court held that the fact that the husband occasionally used the car and that he had access to the keys were “totally inadequate” to establish knowledge on the part of the wife in that such facts were as consistent with innocence as they were with guilt. Id. at 1326. With regard to the wife’s knowledge of the husband’s pri- or drug convictions, the court found that the wife only had knowledge of one eight-year-old conviction, and that such knowledge did not demonstrate that the wife had knowledge of the husband’s illegal use of the vehicle. Id.

¶ 16. In Saik, a car was seized and forfeited after the car owner’s son was arrested for selling marijuana to undercover narcotics officers. 473 So.2d at 189. The car owner testified that he had loaned the car to his son on prior occasions but that his son did not have the authority to take the car without his permission nor did he have such permission on the day of the arrest. Id. at 190. He further testified that he had no knowledge that his son was trafficking in illegal drugs. Id. Based on these facts, the court reversed the lower court’s order of forfeiture. Id. at 191.

¶ 17. Finally, in Curtis, a car was seized and forfeited after the car owner’s brother was found to be in possession of cocaine immediately after exiting the car. 642 So.2d at 382. The lower court ordered the car forfeited based on the following: (1) the owner often allowed her brother to use the car, (2) the owner was aware that her brother had been arrested on drug charges six weeks before the arrest at issue, and (3) the owner told her brother not to partake in drug-related activities in her car. Id. at 385. Relying on Ervin, the court reversed the order of forfeiture, finding that the fact that the owner often allowed her brother to use the ear was insufficient to establish knowledge of the brother’s use of the car for drug-related activity and that the fact that the owner warned her brother not to use the car for drug-related activity was equally as consistent with innocence as with guilt. Id. The court then held that the one remaining factor, that of the owner’s knowledge of her brother’s previous arrest, not conviction, for drug activity, was not sufficient on its own to demonstrate that the owner had knowledge of the brother’s illegal use of the vehicle. Id.

¶ 18. In the case sub judice, we find that the circuit court erred in finding that Mrs. Jones knew that J.C. was using the vehicle for illegal drug-related activity. With regard to Mrs. Jones’s suspicion that J.C. was stealing her husband’s medications during the time she knew he was using the car, the holdings in Ervin and Curtis indicate that knowledge of one prior instance of drug-related activity is not sufficient to demonstrate that Mrs. Jones had knowledge of the illegal use of her vehicle, especially when the prior activity was not associated with Mrs. Jones’s vehicle. Also, after Mrs. Jones and her husband suspected that J.C. was stealing the medications, they took numerous measures to stop him from doing so, including having the medicine held at the post office and carrying the medicine with them in a bag.

¶ 19. Moreover, at the time of his arrest, J.C. did not even have a driver’s license and, as in Saik, Mrs. Jones testified that he was not allowed to drive the vehicle and that she was not aware that he was driving the car on the day of his arrest. The circuit court relied on the fact that, on one prior occasion, J.C. used another of Mrs. Jones’s vehicles without her permission. However, given that there is no evidence that J.C. used the vehicle for any drug-related purpose on that occasion, such does not demonstrate by a preponderance of the evidence that Mrs. Jones knew that J.C. was using her vehicle for drug-related activities.

¶ 20. We find that the circuit erred in finding that a preponderance of the evidence indicated that Mrs. Jones knew that her son J.C. was using the Mercury Cougar for illegal activity. The evidence, at most, “merely creat[ed] a suspicion that the owner had knowledge of the driver’s illegal activity.” Ervin, 434 So.2d at 1326. Thus, the innocent owner defense applied to Mrs. Jones. Accordingly, we reverse the judgment of the circuit court and render judgment in her favor.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF TISHOMINGO COUNTY IS REVERSED AND JUDGMENT IS RENDERED IN FAVOR OF APPELLANT, EDNA JONES. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TISHOMINGO COUNTY.

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

      . Most of this information came from the written statement of Smith, who actually purchased the pills from J.C. Jones, which Williamson read into evidence at the hearing.

      . J.C. and his brother both worked for the same employer, a fence company in Corinth, Mississippi.

      . In her response, Mrs. Jones stated that she was out of town at the time her vehicle was being used for the sale of drugs, that she was not aware that it was being used for this purpose, and that she would not have allowed her vehicle to be used for this purpose.

      . It should be noted that, at the close of evidence at the forfeiture hearing, the attorney for Tishomingo County incorrectly advised the trial court as to the burden of proof in this case:
      And, Your Honor, the important point I think there is that the burden under the law provides that the owner, this case Mrs. Jones, has the burden of proving that she did not have the knowledge or give necessary consent for her son J.C. Jones to use this vehicle in the commission of the crimes for which he has been convicted which has been testified about today. Your Honor, we submit to the Court that they have not met that burden of proof there.

      . The court also noted that the wife had never seen her husband with any illegal drugs nor had she seen any drugs in her home, and she denied giving her husband permission to use her vehicle for an illegal purpose. Id.

      . It should be noted that the circuit court judge stated that, as she understood the testimony, on such occasion, Mrs. Jones had told J.C. that he did not have permission to use the vehicle because he did not have a driver’s license. However, we do not read Mrs. Jones’s testimony as indicating that J.C. was not allowed to use the vehicle because he did not have a driver’s license, but rather that he lost his driver’s license as a result of the DUI that he received when he was using the vehicle without permission. The testimony from Mrs. Jones was as follows:
      Q. How long has it been since he had a driver's license?
      A. J.C.? Well, see, now, he got picked up in Prentiss County for I think it was driving under the influence, and we weren't in town at the time.
      Q. When was that?
      A. Okay. It was in November. I think it was around November of last year.
      Q. What was he driving?
      A. He was driving a Chrysler that I had, another car that I had, and we were not in town.
      Q. Did he have permission to drive that car?
      A. No, he did not.
      Q. So you knew of his propensity to drive cars that you left available to him then, didn’t you, Mrs. Jones?
      A. Well, I trusted my oldest son with my car when we had left, and he had — J.C. hasn’t been driving that car back and forth that I— that I am aware of. My oldest son was driving it.

      . The county points out that the Mississippi Supreme Court has held that ”[w]illful blindness will remove an innocent owner defense.” Parcel Real Property, 664 So.2d at 197 (citing U.S. v. 5745 N.W. 110 Street, 721 F.Supp. 287, 290 (S.D.Fla.1989) (property owner "deliberately closed her eyes to what she had every reason to believe was the truth”)). However, we find no evidence of willful blindness on the part of Mrs. Jones.


author: LEE, P.J.,

text:
    Kevin SOWELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-CP-00122-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2007.

      Kevin Sowell, Pro Se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, P.J., IRVING and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On January 31, 2006, in the Tate County Circuit Court, Kevin Sowell pled guilty to possession of cocaine. Sowell was sentenced as an habitual offender under Mississippi Code Annotated Section 99-19-81 (Rev.2000) to serve five years in the custody of the Mississippi Department of Corrections with three years of post-release supervision. Sowell then filed a motion for post-conviction relief, which the trial court subsequently denied. Sowell now appeals asserting that the indictment was improperly amended and that his trial counsel was ineffective.

STANDARD OF REVIEW

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

DISCUSSION

I. WAS THE INDICTMENT IMPROPERLY AMENDED?

¶ 3. In his first argument on appeal, Sowell argues that the indictment was improperly amended. Sowell claims that he was never formally indicted as an habitual offender under Mississippi Code Annotated Section 99-19-81. Sowell was indicted on July 29, 2005. Shortly thereafter, the trial court entered an order amending the indictment to charge Sowell as an habitual offender under Mississippi Code Annotated Section 99-19-83 (Rev.2000). At the sentencing hearing, the State agreed to reduce Section 99-19-83 habitual (requiring a life sentence) to Section 99-19-81 habitual (requiring the maximum sentence prescribed for such felony).

¶ 4. Rule 7.09 of the Uniform Rules of Circuit and County Court allows the amendment of indictments to charge a defendant as an habitual offender. See also Gray v. State, 926 So.2d 961, 974(¶ 39) (Miss.Ct.App.2006). However, according to Rule 7.09, any amendments to the indictment “shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.” The trial court found that there was no evidence of surprise as Sowell had been notified of the motion to amend the indictment early in the proceedings against him to charge him as a Section 99-19-83 habitual offender. We agree with the trial court and find no merit to this issue.

¶ 5. Sowell also makes broad assertions that his due process rights were violated when the indictment was amended to reflect his habitual offender status because he had no opportunity to object. However, although Sowell did not provide this Court with a transcript of his plea colloquy, Sowell admits that he was informed of sentencing recommendations prior to his guilty plea. Again we refer to the trial court’s order finding that Sowell was aware early in the proceedings that he was to be charged as an habitual offender. This issue is without merit.

II. WAS SOWELL’S TRIAL COUNSEL INEFFECTIVE?

¶ 6. In his other issue on appeal, Sowell argues that his trial counsel was ineffective for failing to object to the amendment of the indictment charging So-well as an habitual offender under Section 99-19-83. Sowell must demonstrate that his trial counsel’s performance was deficient and the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the context of a guilty plea, Sowell must demonstrate that his counsel’s performance fell below the range of competence demanded of attorneys in criminal cases and that but for the attorney’s substandard performance, he would have insisted on going to trial. Alexander v. State, 605 So.2d 1170, 1173 (Miss.1992). Even from the scant record before this Court, it is clear that Sowell’s attorney was able to negotiate a reduced sentence for Sowell, from a possible life sentence under Section 99-19-83 to five years under Section 99-18-81. We cannot find that Sowell’s trial counsel performed in an ineffective manner. This issue is without merit.

¶ 7. THE JUDGMENT OF THE TATE COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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