author: SMITH, Chief Justice, DIAZ, Justice, RANDOLPH, Justice,

text:
    COVENANT HEALTH REHAB OF PICAYUNE, L.P., Its Successor and Interest of Picayune Partners, L.P., d/b/a Picayune Convalescent Center; Covenant Dove, Inc.; and Keri Ladner v. Barbara N. BROWN, Margaret Grace and Sharon Goss on Behalf of the Wrongful Death Beneficiaries Of Bernice Brown.
    No. 2005-CA-02220-SCT.
    Supreme Court of Mississippi.
    Feb. 22, 2007.

      Paul Hobart Kimble, John L. Maxey, II, Jackson, attorneys for appellants.
    Woodrow W. Pringle, III, Gulfport, attorney for appellees.
   SMITH, Chief Justice,

for the Court.

¶ 1. Plaintiffs, on behalf of the decedent, Bernice Brown, filed a wrongful death suit against the convalescent center in which the decedent resided immediately prior to her admission to the hospital, where she died. Defendants filed a Motion to Compel Arbitration, seeking to enforce the arbitration provision in the admissions agreement, and Plaintiffs sought to have the agreement voided with their Motion to Declare Contract Unconscionable and Void. The trial court struck several clauses in the admissions agreement, including the arbitration provision, finding them substantively unconscionable, prompting this appeal.

¶2. We affirm the trial court’s finding that the admissions agreement was not procedurally unconscionable. We further affirm the trial court’s striking as unconscionable C5, C8 and E7, limiting liability; E8, waiving punitive damages; E5 and E6, providing different judicial remedies to the parties; E12, requiring all resolution costs from one party; and E16, limiting the statute of limitations.

¶ 3. However, we find that the trial court erred in striking the remaining three provisions in the admissions contract as unconscionable and in denying Defendants’ motion to compel arbitration. Thus, we continue our precedent of striking unconscionable terms and leaving the remainder of the agreement intact, adhering to our decision in Russell v. Performance Toyota, Inc., 826 So.2d 719, 724-29 (Miss.2002). We reverse and remand with instructions to require the parties to submit to arbitration.

FACTS AND PROCEDURAL HISTORY

¶ 4. On April 8, 2005, Barbara Brown, Sharon Goss, and Margaret Grace, as administrators of the estate of their mother Bernice Brown, filed a complaint in Pearl River County Circuit Court. The complaint alleged that the decedent had been grossly neglected while a resident at Picayune Convalescent Center, from March 19, 2004, until June 2, 2004, and that the center’s negligence was the direct and proximate cause of Brown’s death on July 5, 2004.

¶ 5. On June 17, 2005, Defendants filed a motion to compel arbitration, pursuant to the arbitration provision in the admissions agreement signed by the decedent. The motion requested, in the alternative, to stay the proceedings until the issue of arbitration might be decided. The trial court, granted the motion on July 6, 2005, ordering a continuance of the trial for resolution of the arbitration-related issues. Plaintiffs filed a motion to declare the admissions agreement unconscionable and void on July 11, 2005, alleging (1) that the agreement was procedurally and substantively unconscionable; (2) that the deceased was incompetent and incapable of understanding the agreement and the terms of the same; (3) that Sharon Goss, signing as a responsible party, had no authority to sign on behalf of Bernice Brown; and (4) that Sharon Goss lacked the capacity to understand the agreement and did not understand the same when she signed it. On October 26, 2005, the court entered an Order granting Plaintiffs’ motion, finding the arbitration provision substantively unconscionable and striking all provisions related to arbitration or the limitation of remedies, namely sections C5, C8, D4, E5, E6, E7, E8, E12, E13, E16, and F of the admissions agreement.

¶ 6. Defendants filed a notice of appeal on November 14, 2005, appealing three issues: 1) whether the admissions contract is enforceable when the resident and her responsible party signed the agreement; 2) whether the trial court erred in finding the contract substantively unconscionable; and 3) whether the trial court erred in denying Defendant’s motion to compel.

DISCUSSION

117. The issues raised essentially inquire whether the trial court properly denied Defendants’ motion to compel. Thus, the issues will be consolidated to answer that one question.

¶ 8. This Court applies a de novo standard of review to denials of motions to compel. Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507, 513 (Miss.2005). We divide the question into two lines of inquiry.

I. Whether the Trial Court Erred in Not Finding That the Admissions Agreement Was Procedurally Unconscionable Even Though the Resident and Her Responsible Party Signed the Agreement.

¶ 9. Plaintiffs assert that the admissions agreement is procedurally unconscionable because Brown was incompetent and incapable of entering into a contract, and Goss had no authority to bind Brown.

¶ 10. With regard to Goss’s authority to bind Brown, Defendants cite Miss.Code Ann. § 41-41-211 (Rev.2005) which says in pertinent part:

(1) A surrogate may make a health-care decision for a patient who is an adult or emancipated minor if the patient has been determined by the primary physician to lack capacity and no agent or guardian has been appointed or the agent or guardian is not reasonably available.
(2) An adult or emancipated minor may designate any individual to act as surrogate by personally informing the supervising health-care provider. In the absence of a designation, or if the designee is not reasonably available, any member of the following classes of the patient’s family who is reasonably available, in descending order of priority, may act as surrogate:
(a) The spouse, unless legally separated; (b) An adult child; (c) A parent; or (d) An adult brother or sister.
(7) A health-care decision made by a surrogate for a patient is effective without judicial approval.

Plaintiffs submit in their motion that Brown was incapable of managing her affairs at the time she entered the hospital. Neither party presents a declaration by Brown’s primary physician stating that she was incapable of managing her affairs pri- or to the signing of the admission agreement, but Plaintiffs state in their motion that Brown’s admitting physician at the hospital found that she did not have the mental capacity to manage her affairs. Seeing that Brown was incapacitated by virtue of admission by her representatives and corroboration by her admitting physician, she was capable legally of having her decisions made by a surrogate. Her adult daughter, Goss, was an appropriate member of the classes from which a surrogate could be drawn, and thus, Goss could contractually bind Brown in matters of health care.

¶ 11. Having confirmed Goss’ authority to sign the agreement, the remaining inquiry is whether Goss signed the agreement in a voluntary and knowledgeable manner. In Vicksburg Partners, this court considered an assertion of procedural unconseionability where the daughter, serving as the responsible party, admitted her father to a nursing home. Vicksburg Partners, 911 So.2d at 510, 516-20. There are two considerations for procedural un-conscionability: (1) lack of voluntariness and (2) lack of knowledge. Id. at 517-518 (citing Entergy Miss., Inc. v. Burdette Gin Co., 726 So.2d 1202, 1207 (Miss.1998)).

¶ 12. Goss contends that she signed the agreement in a manner that was not voluntary and not knowing, since the admissions agreement was one of adhesion, the print was inconspicuous, and she did not understand the legal terms. This Court has stated that “[c]on-tracts in which one party has minimal bargaining power, also referred to as contracts of adhesion, are not automatically void. Instead, the party seeking to avoid the contract generally must show that it is unconscionable. There is nothing per se unconscionable about arbitration agreements.” Vicksburg Partners, 911 So.2d. at 518 (internal quotes and citations omitted).

¶ 13. In Vicksburg Partners, the court found that there was no procedural unconseionability, in that:

there were no circumstances of exigency; the arbitration agreement appeared on the last page of a six-page agreement and was easily identifiable as it followed a clearly marked heading printed in all caps and bold-faced type clearly indicating that section “F” was about “Arbitration;” the provision itself was printed in bold-faced type of equal size or greater than the print contained in the rest of the document; and, appearing between the arbitration clause and the signature lines was an all caps bold-faced consent paragraph drawing special attention to the parties’ voluntary consent to the arbitration provision contained in the admissions agreement. Under these facts, it can not be said that there was either a lack of knowledge that the arbitration provision was an important part of the contract or a lack of voluntariness in that [the resident and his responsible party] somehow had no choice but to sign.

This description of the facts, including the location and format of the arbitration provision in the agreement in Vicksburg Partners is identical to the provision in this case, thus controlling in the case at bar. Therefore, we find that in accordance with Stephens, there is no procedural uncon-scionability in this admissions agreement. The trial court correctly found no procedural unconseionability.

II. Whether the Trial Court Erred in Finding the Stricken Provisions of the Contract Substantively Unconscionable.

¶ 14. When determining whether a contract is substantively unconscionable, we look within the four corners of an agreement. Vicksburg Partners, 911 So.2d at 521. Contracts comprised of terms oppressive in character may be found unconscionable. Id. (citing East Ford, 826 So.2d at 714). For a per se finding of unconscionability, the Court must find the contract at issue “by its very language significantly alters the legal rights of the parties involved and severely abridges the damages which they may obtain.” Vicksburg Partners, 911 So.2d at 521. Further, as mentioned before, while the type of contract at issue was found to be one of adhesion, that fact does not automatically necessitate a finding of procedural or substantive unconscionability. Id. at 518, 521-22. A party seeking to avoid the contract must show that such contract is unconscionable. Id. at 518.

¶ 15. Section D4 enforces the contract entered into by the decedent against her heirs beyond her death. The United States Supreme Court has held that “[i]t is a presumption of law that the parties to a contract bind not only themselves but their personal representatives. Executors, therefore, are held to be liable on all contracts of the testator which are broken in his lifetime, and, with the exception of contracts in which personal skill or taste is required, on all contracts broken after his death.” United States ex rel. Wilhelm v. Chain, 300 U.S. 31, 35, 57 S.Ct. 394, 396, 81 L.Ed. 487, 490 (1937). This Court has held that arbitration agreements, specifically, are not invalidated by the death of the signatory and may be binding on successors and heirs if provided in the agreement. Cleveland v. Mann, 942 So.2d 108, 118 (Miss.2006). Therefore, all of the provisions in D4 that remain upon this Court’s ruling are enforceable by and against both the decedent’s administrators and the nursing home. We find that the trial court clearly erred in striking this provision.

¶ 16. The trial court also struck the clauses concerning limited liability and punitive damages. Section E7 limits the amount of damages awardable in a dispute between the nursing home and the resident. Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507, 523 (Miss.2005) (quoting East Ford, Inc. v. Taylor, 826 So.2d 709, 716 (Miss.2002)). The exact language in E7 of the contract at issue was found unconscionable in Vicksburg Partners. , Id. at 522-23. Similarly, sections C8, waiving liability for criminal acts of individuals, and C5 requiring forfeiture by the resident of all claims except those for willful acts, are also unconscionable under Vicksburg Partners. See id. at 528. The sections creating a limitation on liability—C5, C8, and E7—are unenforceable and were properly stricken by the trial court from the admissions agreement.

¶ 17. Also, in Vicksburg Partners this Court found a waiver of punitive damages applying to both parties (one very similar to section E8 in the contract at issue) unconscionable due to its potentially significant effect of substantial deprivation to the resident and benefit to the nursing home. Vicksburg Partners, 911 So.2d at 523. Consistent with Vicksburg Partners, the trial court properly struck section E8.

¶ 18. The “grievance resolution process” as laid out in sections E5 and E6 is unconscionable pursuant to Pitts where a very similar clause allowing the care facility to bring suit in court on issues of payment and prohibiting the resident from bringing to bring suit in court on any grounds was one-sided, oppressive, and unconscionable. Pitts v. Watkins, 905 So.2d 553, 555-56 (Miss.2005). These provisions were properly stricken by the trial court in accordance with Pitts.

¶ 19. As for section E12, which requires the resident to pay all costs for enforcement of the agreement if the resident avoids or challenges either the grievance resolution process or an award therefrom, it is akin to a clause analyzed in Pitts which stated that if the plaintiff failed to comply with a particular term in the contract the plaintiff must pay “any and all fees associated with collection, including but not limited to administration costs, attorney’s fees, and cost of litigation.” Pitts, 905 So.2d at 556. This Court found that those terms unreasonably favored the defendant, and, thus, that the arbitration clause containing these terms was “one-sided, oppressive and therefore, substantively unconscionable.” Id. Based on this analysis, the trial court properly struck this section from the contract at issue.

¶ 20. Section E16 of the contract prohibits legal action by a resident “more than one year following the happening of the event giving rise to [the] complaint, claim, or grievance.” This Court will not enforce a contractually created time limitation on suits. Modifications to the statute of limitations cannot be accomplished by contract, and any attempt to do so mil be void. Pitts, 905 So.2d at 558 (citing Miss.Code Ann. § 15-1-5 (Rev. 2003)). Accordingly, this Court has refused to enforce an admissions contract, such as in this case, which attempts to modify the statute of limitations. In Pitts, the admissions agreement limited the legal action to within one year, in contradiction to the three-year statute of limitations, and we held that the attempt to create a private statute of limitations was oppressive and unconscionable. Id. at 558. Consistent with Pitts, this section was properly struck as unconscionable by the trial court.

¶ 21. Section E13 waives the right of all parties to a jury trial. The provision waives the right of a jury trial for both the nursing home and the resident. Thus it is not one-sided. The provision has the same effect as signing an arbitration agreement. It is well established that this Court respects the ability of parties to agree to the means of dispute resolution prior to a dispute and enforces the plain meaning of a contract as it represents the intent of the parties. Russell v. Performance Toyota, Inc. 826 So.2d 719, 722 (Miss.2002); I.P. Timberlands Operating Co. v. Denmiss Corp., 726 So.2d 96, 108 (Miss.1998). Therefore, the trial court improperly struck E13.

¶ 22. With regard to Section F, the arbitration provision, the very heart of the dispute, Vicksburg Partners is the controlling case. As in this case, the dispositive issue was whether the arbitration provision rendered the subject admissions agreement unenforceable. Vicksburg Partners, 911 So.2d at 517. The admissions agreement contained numerous other provisions, some of which were found unconscionable. Id. at 526. Two such provisions were used to justify striking similar provisions in this case. Id. at 523-24. Moreover, the arbitration provision was identical to the one in this case. Id. at 510-11. The provision even included the last sentence of the provision in this case, referencing section E7, which was found unconscionable and stricken as in this case. Id. at 523. This Court concluded that the arbitration provision was not unconscionable.

¶ 23. Seeing that “[questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration,” Vicksburg Partners, 911 So.2d at 513, one factor negating an assertion of unconscionability was that the provision was typical of those endorsed by the Federal Arbitration Act, Id. at 521. The provision contained another characteristic of a conscionable provision in that it was found to bear “some reasonable relationship to the risks and needs of the business.” Id. at 517 (citing Entergy Miss., Inc. v. Burdette Gin, 726 So.2d 1202, 1207 (Miss.1998)). This Court found the provision language not to be oppressive but, rather, to provide the plaintiffs with a fair process through which to pursue their claims. Vicksburg Partners, 911 So.2d at 521. Vicksburg Partners deemed the exact language that composed the entirety of Section F to be substantively conscionable. Id. Accordingly, we reach the same result in this case.

¶ 24. In light of recent precedent, this Court must reverse the trial court’s findings as to the enforcement of the arbitration provision and the resultant denial of Defendants’ motion to compel arbitration. However, consistent with the analysis above, the last sentence of the arbitration provision, which limits liability pursuant to sections E7 and waives punitive damages, must be stricken from Section F.

¶25. We choose to enforce the remainder of the contract without the unconscionable clause. Miss.Code Ann. § 75-2-302(1) (1972). Parties may agree on the means of dispute resolution, including arbitration, in any way they desire. B.C. Rogers Poultry, Inc. v. Wedgeworth, 911 So.2d 483, 491 (Miss.2005). Contracts are solemn obligations, and the court must give them effect as written. Id. at 487. In light of this duty, it is well-established that when interpreting arbitration agreements, or any contract, “if a court strikes a portion of an agreement as being void, the remainder of the contract is binding.” Russell, 826 So.2d at 724-25 (citing Lawler v. Government Employees Ins. Co., 569 So.2d 1151, 1153 (Miss.1990); Plaza Amusement Co. v. Rothenberg, 159 Miss. 800, 131 So. 350, 357 (1930) (“If an illegal condition is annexed to a contract, it will not void the whole contract, but the illegal part will be treated as void”)). Accordingly, we strike the unconscionable terms and leave the remainder of the agreement intact.

CONCLUSION

¶ 26. We affirm the trial court’s finding that the admissions agreement was not procedurally unconscionable.

¶ 27. Further, we affirm the trial court in striking the sections found to be unconscionable: C5, C8, and E7, limiting the facility’s liability; E8, waiving punitive damages; E5 and E6, providing availability of judicial remedies for one party and eliminating it for the other; E12, placing the burden of all costs of non-compliance with or challenges to the grievance resolution process on the resident; and E16, limiting the statute of limitations.

¶28. However, the remainder of the admissions agreement is enforceable. Accordingly, we reverse the trial court in its judgment as to the striking of the remaining three provisions as unconscionable. Section D4, which binds the decedent’s heirs to comply with the admissions agreement, is supported by recent precedent, and precedent necessitates that we reverse the trial court’s judgment striking as unconscionable the jury trial waiver in section E13 and the arbitration agreement in section F.

¶ 29. Further, regarding section F, the arbitration provision, the trial court erred in denying the nursing home’s motion to compel, and that judgment is reversed and the case remanded to the Circuit Court of Pearl River County with directions to compel the parties to submit to arbitration.

¶ 80. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

COBB, P.J., EASLEY, CARLSON AND DICKINSON, JJ., CONCUR. WALLER, P. J., CONCURS IN PART. DIAZ, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J. RANDOLPH, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, P.J., AND IN PART BY DIAZ, J.

DIAZ, Justice,

Dissenting.

¶ 31. We are faced today with a contract for illegal services. While I agree with the majority that portions of the contract are void due to unconscionability, I must respectfully dissent because the document is wholly void as a matter of law.

¶ 32. It is bedrock law that a contract for illegal services is void. It is now a centuries-old concept that “ex dolo malo non oritur actio,” which means that “[n]o Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.” Morrissey v. Bologna, 240 Miss. 284, 300-01, 123 So.2d 537, 545 (1960). “This rule in Mississippi applies to contracts cases as well, preventing relief on a claim based on a contract that is illegal or against our state’s public policy.” Price v. Purdue Pharma Co., 920 So.2d 479, 484-85 (Miss.2006).

¶ 33. “There is no doubt that the courts have the duty and the power to declare void and unenforceable contracts made in violation of law or in contravention of the public policy of the state.” Smith v. Simon, 224 So.2d 565, 566 (Miss.1969). There are three general situations where we will not permit a contract to stand. First, “when the principal purpose of the contract directly furnishes aid and protection to an illegal enterprise;” second, “when in order to enforce the contract a party must base his cause of action on his own illegal act;” and third, “where the contract itself is unlawful.” Id. at 566 (citing Smith v. Maryland Casualty Co., 252 Miss. 81, 172 So.2d 574 (1965) (involving fidelity bond covering employees who misappropriated illegal liquor); Capps v. Postal Telegraph-Cable Co., 197 Miss. 118, 19 So.2d 491 (1944) (involving failure to deliver a telegram concerning a gambling contract); Powelson v. National Airlines, 220 Miss. 595, 71 So.2d 467 (1954), (involving a contract to purchase stock in violation of a federal statute), and Morrissey v. Bologna, 240 Miss. 284, 123 So.2d 537 (1960) (involving indebtedness for illegal liquor)).

¶ 34. The case at hand involves a nursing home, which furnishes services to those in need and may only do so legally by agreeing to certain rules and regulations established by the Mississippi Department of Health and the Legislature. In this ease, Covenant Health has attempted to contract away its binding duties under the law, which it cannot do. In its order, the trial court specifically noted Covenant Health’s attempt to illegally avoid state and federal regulations governing nursing homes by the contract. The agreement contains several attempts to illegally contract away the minimum standards of care as provided by the state.

¶ 35. We will examine each illegal portion in turn.

I. Bl: The Responsibility of the Facility.

¶ 36. The Mississippi Regulations Governing Licensure of Nursing Home Facilities set out the minimum standard for daily care in a nursing home facility: “To be classified as a facility, the institution shall comply with the following staffing requirements ... [m]inimum requirements for nursing staff shall be based on the ratio of two and eight-tenths (2.80) hours of direct nursing care per resident per twenty-four (24) hours.” Miss. Reg. 12-000-045 § 201.1(a). There is no stated exception in the regulations for any reason.

¶ 37. However, Section Bl of the Agreement states that “[t]he Facility agrees to furnish general duty nursing and nurse aide care equal to at least the State Medicaid minimum hours per Resident day (this is generally approximately 2.0 to 2.8 hours per Resident day on average including administration time). Temporary periods of extreme bad weather, strikes, unusual labor problems or similar disruptions may result in temporary periods below this average.”

¶ 38. Accordingly, this provision attempts illegally to contract for services below the minimum standards required by state regulation.

II. C5: Indemnification.

¶ 39. Displayed in bold print, the section reads in pertinent part that “[t]he Resident and Responsible Party further agree to indemnify and hold harmless the Facility from and against claims, loss, costs and expenses incurred as a result of claims against the Facility for any reason by the Responsible Party, family members and friends of the Resident unless such claim, loss, cost and expense is the result of the Facility’s willful misconduct.”

¶ 40. This clause purports to create total indemnity against the facility for negligence or any other action that is not “willful misconduct.” On its face, this clause is illegal, as it violates the Rules, Regulations and Minimum Standards for Institutions for the Aged or Infirm, the set of regulations the state of Mississippi has adopted governing nursing homes. Specifically, the regulations mandate that “[n]o agreement or contract shall be entered into between the licensee and the resident or his responsible party which will relieve the licensee of responsibility for the protection of the person and of the rights of the individual admitted to the facility for care, as set forth in these regulations.” Miss. Reg. 12-000-45, § 404.3(b).

¶ 41. This section should also be read in concert with section C7, which purports to “agree” that “the Facility primarily provides room and board and limited nursing care and is not responsible for the actions or inactions of the attending physician, pharmacy and other health care professionals not primarily compensated by the Facility.” This section also attempts to illegally disclaim liability in violation of Section 404.3(b).

III.€7: Licensees and Agents.

¶42. Section- C7 begins by stating “[t]hat the Resident and/or Responsible Party are responsible for securing the care of a qualified licensed and qualified attending physician for the patient.” This attempts to illegally contract around three separate regulations. Section 504.2 of Miss. Reg. 12-000-045 states that “[e]ach resident shall have a designated physician or nurse practitioner who is responsible for their care,” and “[i]n the absence of the designated physician or nurse practitioner, another physician or nurse practitioner shall be designated to supervise the resident medical care.” Additionally, Section 504.3 mandates that “[t]he facility shall arrange for the provision of physician or nurse practitioner services twenty-four (24) hours a day in case of an emergency.” Likewise, Section 504.4 commands that “[t]he resident shall be seen by a physician or nurse practitioner every sixty (60) days.”

¶ 43. If the facility receives Medicare or Medicaid monies, it is required under federal regulations to provide care by a physician. “The facility must ensure that: (1) The medical care of each resident is supervised by a physician; and (2) Another physician supervises the medical care of residents when their attending physician is unavailable.” 42 C.F.R. 483.40(a). Additionally, “[t]he resident must be seen by a physician at least once every 30 days for the first 90 days after admission, and at least once every 60 days thereafter.” 42 C.F.R. 483.40(c)(1).

¶ 44. Accordingly, it is not the duty of the resident to secure a physician; it is the non-delegable duty of the nursing home, as required under state and federal regulation. Covenant Health’s attempt to delegate this regulatory responsibility to a resident is yet another example of its attempt to contract for illegal services.

IV. C8: Indemnity for Criminal Acts.

¶ 45. Section C8 of the agreement reads in whole that:

Subject to the Facility complying with Section B.6 [agreeing that the facility will “perform criminal background checks on all nursing department personnel upon initial hiring of said personnel”], the Resident and Responsible Party agree that should any individual or individuals, whether employees of the Facility or not, commit any criminal act upon or against the Resident or Responsible Party, that the Resident and Responsible Party agree to seek damages and claims only against said individuals(s). Accordingly, the Parties hereto agree to hold harmless the Facility, its officers, owners, directors and employees for the criminal actions of any individual(s).

Like section C5, this clause is illegal on its face, as it violates the Mississippi state regulations governing nursing homes, which mandate that “[n]o agreement or contract shall be entered into between the licensee and the resident or his responsible party which will relieve the licensee of responsibility for the protection of the person and of the rights of the individual admitted to the facility for care, as set forth in these regulations.” Miss. Reg. 12-00(M5, § 404.3(b).

V. E5 and E16: Notice Requirements and Statutes of Limitation.

¶ 46. Section E5 purports illegally to modify Mississippi statutes by requiring that “written notice shall be delivered within 20 days of the date of the incident giving rise to the claim.” Section E16 requires that, “[o]ther than the mediation requirement” of 20 days, “no legal action shall be initiated against the Facility by the Resident or any other Party hereto prior to sixty days following the filing of a written grievance.... ”

¶47. Under Mississippi law, only certain types of actions require written notice; for example, the Code requires 60 days’ written notice before filing suit against certain health care providers. Miss.Code Ann. § 15-1-36(15) (Rev.2003). This clause attempts to materially deviate from the language of this statute, which we have held must be strictly observed, as “[a]ny different approach would render meaningless any rule or statute setting time limitations on litigants.” Arceo v. Tolliver, 949 So.2d 691, 697, 2006 WL 3317036, *5, 2006 Miss. LEXIS 385, *17 (Miss.2006).

¶ 48. It further places a notice requirement on a resident or responsible party when non-medical negligence is asserted, such as a premises liability claim, which is not authorized by common law or statute. This attempt to create a notice requirement not present in our state statutes and to alter and shorten the existing statutory requirement for notice is further evidence of an attempt to contract around the statute of limitations.

¶ 49. Additionally, E16 purports to change our statutorily-set statute of limitations and common law, asserting that “no legal action shall be initiated against the Facility ... in any event more than one year following the happening of the event giving rise to such complaint, claim or grievance.” There are three separate areas of impact from this section: first, our statute of limitations for negligence, which is three years (Miss.Code Ann. § 15-1-49 (Rev.2003)); second, our statute of limitations for medical negligence, which is two years (Miss.Code Ann. § 15-1-36(2) (Rev. 2003)); and last, the fact that our precedent on the “discovery rule” allows for an action beyond the statutes of limitations in limited circumstances. See Wright v. Quesnel, 876 So.2d 362, 366 (Miss.2004).

¶ 50. In Pitts v. Watkins, a party attempted to change our three-year statute of limitations for negligence; we declared that “[t]his period of limitation cannot be changed by contract, and any such change in the limitations period shall be null and void,” and held that “[t]he attempt to create a private statute of limitations is further evidence of overreaching by [the defendant], is oppressive, violates statutory law and is likewise unconscionable.” 905 So.2d 553, 558 (Miss.2005). Section E16 parallels the offending clause in Pitts, which we noted was in violation of statutory law. These sections both attempt to illegally contract for that which cannot be obtained.

VI. E7: Limitation of Liability.

¶ 51. In bold print, Section E7 limits the dollar value that can be awarded in case of a “claim, dispute or controversy.” In pertinent part, it states that “the settlement thereof shall be for actual damages not to exceed the lesser of a) $50,000 or b) the number of days the Resident was in the Facility multiplied times the daily rate applicable to said Resident.” This clause illegally infringes upon Mississippi state regulations governing nursing homes, which require that each resident “has a right of action for damages or other relief for deprivations or infringements of his right to adequate and proper treatment and care established by an applicable statute, rule, regulation or contract.” Miss. Reg. 12-000-045, § 408.2(e).

VII. E12 and E6: Shared and Shifted Costs.

¶ 52. The trial court also found sections E12 and E6 indicative of overreaching. In part, E6 requires that “[t]he Parties agree to share equally the costs of such mediation.” E12 states in whole that “[i]n the event a Party hereto fails to proceed with mediation and/or arbitration, challenges the arbitrator’s award, or fails to comply with the arbitrator’s award, the other Party is entitled to all costs of suit or action including reasonable attorney’s fees for having to defend or enforce the arbitration award or having to defend or enforce the mediation or arbitration provisions set forth herein.”

¶ 53. The United States Code defines when and under what circumstances a party can appeal an arbitration decision; see 9 U.S.C. § 10 (governing method of vacating arbitration awards); 9 U.S.C. § 11 (governing modification or correction of awards). These statutes do not provide for an express grant of fees to the party who seeks vacation, modification, or correction. Sections E12 and E6 are thus further demonstration of Covenant Health’s attempt to contract for illegal services.

VIII. The Case at Hand.

¶ 54. The contract which Covenant Health seeks to enforce has no less than nine separate sections which attempt to avoid its binding obligations under the law. It is one in a series of contracts considered by this Court that has included increasingly offensive, unconscionable, and flat-out illegal provisions in a contract for nursing home services. This one appears to be the second time this Court has considered the exact same agreement, as the one at hand tracks the agreement in Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507 (Miss.2005). Apparently, little has been learned since that case, and nursing home companies are continuing to attempt to contract for illegal and unconscionable services. We must decline to enforce even the smallest portion of these illegal contracts until they are free of illegality and unconscionability.

¶ 55. It is our sworn duty as a Court to safeguard the rights of all Mississippians, but we must be especially sensitive when dealing with the most vulnerable of our citizens, those in the twilight of their lives. Nursing home companies provide a valuable service in our society, but they cannot be allowed, unique among all other corporations, to contract for illegal services. The contract Covenant Health wishes us to enforce is repugnant to the statutory and common law of our state and country. It is simply grotesque. It cannot be upheld as a matter of law, and because the majority declines to honor this centuries-old prohibition I must respectfully dissent.

GRAVES, J., JOINS THIS OPINION.

RANDOLPH, Justice,

Concurring In Part and Dissenting in Part.

¶ 56. I join the majority’s declaration that Sections C5, C8, E5, E6, E7, E8, E12, and E16 are all substantively unconscionable and unenforceable. However, I respectfully depart from the majority’s decision to convert an admittedly, substantively unconscionable provision (Section F) into a conscionable provision, by excising the unconscionable language. If substantive unconscionability did not otherwise permeate the document, I might well join. But that is not the case. I conclude that Section F, in its entirety, should face the same fate as the aforementioned sections, and be stricken from the document.

¶ 57. The “Admission Agreement” at issue here is virtually identical to the “Admission Agreement” in Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507 (Miss.2005), wherein this Court found that the agreement constituted a “contract of adhesion.” Id. at 525. That finding equally applies here. “[Ljaying a foundation that a contract was one of adhesion makes an argument targeting a provision for a substantive unconscionability review easier to prove.” Id. at 528 (emphasis added).

¶ 58. “Arbitration is about choice of forum — period.” Id. at 525. See also East Ford, Inc. v. Taylor, 826 So.2d 709, 716 (Miss.2002) (“[a]rbitration agreements merely submit the question of liability to another forum — generally speaking, they do not waive liability.”). Section F, however, covertly alters the legal rights of the parties in favor of Covenant Health, by weaving non-forum issues into the fabric of the section. Specifically, Covenant Health unconscionably inserted terms regarding equal sharing of arbitration costs, the waiver of punitive damages, and the limitation of liability into Section F, the latter two having been expressly rejected by this Court in Pitts v. Watkins, 905 So.2d 553 (Miss.2005). The language of Section F requires that this Court rely on other sections in the contract by reference, including the consideration of multiple substantively unconscionable clauses, all lacking any relation to forum. Covenant Health further attempts to protect these unconscionable provisions, under the penumbra of an arbitration provision. Such integration of substantively unconscionable clauses into the forum-only sphere of the arbitration provision, is hardly benign and should therefore render Section F invalid, and thus unenforceable. See Sanderson Farms v. Gatlin, 848 So.2d 828, 852 (Miss. 2003) (Cobb, J., dissenting; Smith, P.J., and Carlson, J., joining) (“[njeither is it wise to allow companies to draft arbitration clauses with unconscionable provisions and then let them try them out in the marketplace, secure in the knowledge that the courts will at worst sever the offending cost allocation after plaintiffs have been forced ‘to jump through hoops in order to invalidate those agreements.’ Cooper v. MRM Inv. Co., 199 F.Supp.2d 771, 782 (M.D.Tenn.2002)....”).

¶ 59. In 2005, this Court in Pitts held three clauses substantively unconscionable and unenforceable: (1) an arbitration clause which “provide[d] an avenue for Watkins to pursue his claims in a court of law, while requiring the Pittses to arbitrate!;,]” Pitts, 905 So.2d at 555; (2) a limitation of liability clause “preclud[ing] the plaintiffs ability to collect punitive damages ... [and] placing] an unreasonable restriction to collect compensatory damages in excess of $265[,]” id. at 556; and (3) a contractually-created one-year statute of limitations. See id. at 558. This Court refused to enforce such provisions. See id. The majority opines first, that this contract is one of adhesion. Then the majority is satisfied that this contract of adhesion contains at least eight substantively unconscionable sections: (1) C5— requiring forfeiture by the resident of all claims against Covenant Health except those for “willful misconduct;” (2) C8— waiving Covenant Health’s liability for the criminal acts of individuals, subject to their performing criminal background checks on all nursing personnel only; (3) E5 and E6 — on the “grievance resolution process” and mediation, and, like the substantively unconscionable arbitration provision in Pitts, allowing Covenant Health to bring suit in court on issues of payment, while prohibiting Brown from bringing suit in court on any grounds; (4) E7 — the limitation of liability provision; E8 — -the waiver of punitive damages provision; E12 — requiring Brown to pay all costs to enforce the agreement if she avoided or challenged the “grievance resolution process” or an award therefrom; and E16 — a contractually-created one-year statute of limitations. This agreement violates all three Pitts dis-qualifiers, all the Vicksburg Partners disqualifies, and then some.

¶ 60. The majority opinion properly has found significant segments of the “Admission Agreement” to be substantively unconscionable. Additionally, the dissent suggests instances of Covenant Health attempting to circumvent applicable state regulations by this agreement. In total, this scenario renders enforcement of the arbitration provision of Section F, which itself contains substantively unconscionable clauses, a legal anomaly. The majority’s excision of unconscionable sections results in this Court rewriting a contract which favors a goal of the nullifying party; an undeserved reward for unconscionable conduct. I respectfully conclude that Section F is also substantively unconscionable and should be stricken.

WALLER, P.J., JOINS THIS OPINION. DIAZ, J., JOINS THIS OPINION IN PART.

      . Section D4 reads verbatim in bold print: Notwithstanding any other provision set forth herein, Sections C5, E5, E6, E7, E8, E9, E12, E13, E14, E15 and F as set forth in this Agreement shall survive the termination for any reason of this Agreement and shall survive and shall not be revoked by the death of any Party hereto including the Resident. Said provisions shall be binding on the estate of the Resident in the event the Resident is deceased.

      . Section E7 in both Viclcsburg Partners and the case sub judice read verbatim in bold print: "Should any claim, dispute or controversy arise between the Parties or be asserted against any of the Facility's owners, officers, directors, or employees, the settlement thereof shall be for actual damages not to exceed the lesser of a) $50,000 or b) the number of days that Resident was in the Facility multiplied times the daily rate applicable for said Resident. This limitation of liability shall be binding on the Resident, Responsible Party, and the Resident’s heirs, estate and assigns.”

      . Section C8 reads verbatim: "The Parties hereto agree to waive punitive damages against each other and agree not to seek punitive damages under any circumstances.”

      . The pertinent portion of section C5 reads verbatim in bold print: "The Resident and Responsible Party further agree to indemnify and hold harmless the Facility from and against claims, loss, costs and expenses incurred as a result of claims against the Facility for any reason by the Responsible Party, family members and friends of the Resident unless such claim, loss, cost and expense if the result of the Facility’s willful conduct.”

      . Section E8 reads verbatim: "The Parties hereto agree to waive punitive damages against each other and agree not to seek punitive damages under any circumstances.”

      . The pertinent portion of section E5 reads verbatim: "In the event a claim, dispute and/or controversy shall arise between the Parties other than regarding matters concerning the payment for services rendered or refunds due, the Parties agree to participate in a grievance resolution process.”

      . Section E12 reads verbatim: "In the event a Party fails to proceed with mediation and/or arbitration, challenges the arbitrator's award, or fails to comply with the arbitrator’s award, the other Party is entitled to all costs of suit or action including reasonable attorney fees for having to defend or enforce the arbitration award or having to defend or enforce the mediation or arbitration provision set forth herein.”

      .Section E16 reads verbatim in bold print: "Other than the mediation requirement set forth in Section E6, no legal action shall be initiated against the Facility by the Resident or any other Party hereto prior to sixty days following the filing of a written grievance setting forth a description of the acts or omissions complained of, nor in any event more than one year following the happening of the event giving rise to such complaint, claim or grievance.”

      . Section E13 reads verbatim: All Parties hereto are hereby waiving all rights to a jury trial.

      . Section F in both Vicksburg Partners and in this case read verbatim in bold print: "The Resident and Responsible Party agree that any and all claims, disputes and/or controversies between them, and the Facility or its Owners, officers, directors, or employees shall be resolved by binding arbitration administered by the American Arbitration Association and its rules and procedures. The Arbitration shall be heard and decided by one qualified Arbitrator selected by mutual agreement of the Parties. Failing such agreement each Party shall select one qualified Arbitrator and the two selected shall select a third. The Parties agree that the decision of the Arbitrators) shall be final. The Parties further agree that the Arbitrators shall have all authority necessaiy to render a final, binding decision of all claims and/or controversies and shall have all requisite powers and obligations. If the agreed method of selecting an Arbitrators) fails for any reason or the Arbitrator(s) appointed fails or is unable to act or the successor(s) has not been duly appointed, the appropriate circuit court, on application of a party, shall appoint one Arbitrator to arbitrate the issue. An Arbitrator so appointed shall have all the powers of the one named in this Agreement. All Parties hereto agree to arbitration for their individual respective anticipated benefit of reduced costs of pursuing a timely resolution of a claim, dispute or controversy, should one arise. The Parties agree to share equally the costs of such arbitration regardless of the outcome. Consistent with the terms and conditions of this Agreement, the Parties agree that the Arbitrator(s) may not award punitive damages and actual damages awarded, if any, shall be awarded pursuant to Section E.7.”

      . In Vicksburg Partners the Court relied on Russell to enforce section El of the contract at issue in Vicksburg Partners, which is identical to the section El in the contract at dispute in this case, calling for severance of unenforceable terms and enforcement of the remainder of the agreement. Vicksburg Partners, 911 So.2d at 524-25. See Russell, 826 So.2d at 724-25.

      . The only distinction being that the bottom of the first page of the "Admission Agreement” here states, in bold, that "[t]his Agreement is subject to Arbitration as set forth in Sections E and F.”

      . "The Parties agree to share equally the costs of such arbitration regardless of the outcome.”


source: Caselaw Access Project

author: EASLEY, Justice,

license: Public Domain

text:
    Michael IVY v. STATE of Mississippi.
    No. 2005-KA-02303-SCT.
    Supreme Court of Mississippi.
    Feb. 22, 2007.
    Steven Carl Wallace, attorney for appellant.

      Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before SMITH, C.J., EASLEY and GRAVES, JJ.
   EASLEY, Justice,

for the Court.

PROCEDURAL HISTORY

¶ 1. Michael Ivy (Ivy) was indicted in a two-count indictment — Count I: engaging in the sexual battery of A.B., a child under the age of fourteen and/or twenty-four months younger than Ivy, in violation of Miss.Code Ann. § 97-3-95, and Count II: fondling A.B., in violation of Miss.Code Ann. § 97-5-23. Ivy received a jury trial in the Circuit Court of Lowndes County, Mississippi. Ivy was convicted of Count I: sexual battery and Count II: fondling. As to Count I, Ivy was sentenced as a habitual offender to life imprisonment in the custody of the Mississippi Department of Corrections and fined $10,000. As to Count II, Ivy was sentenced to serve a term of fifteen years in the custody of the Mississippi Department of Corrections to run consecutively with the sentence in Count I and fined $5,000. The trial court ordered that the sentences in Count I and Count II shall not be reduced or suspended, nor shall the defendant be eligible for parole or probation. Ivy now appeals to this Court, raising the following assignment of error: whether the verdict was against the overwhelming weight of the evidence.

FACTS

¶ 2. On June 2, 2004, A.B., age 13, awoke at approximately 3:00 a.m. to find her stepfather, Ivy, with his head between her legs. A.B. testified that Ivy tried to stick his thumb inside her, but she rolled over when he tried. She stated that the pain caused by Ivy trying to stick his thumb in her caused her to wake up. Ivy stuck his tongue inside her vagina.

¶ 3. Ivy had pulled her panties off of her, and the panties were on the floor. Ivy pulled up A.B.’s shirt and licked her chest. At the time, A.B. was in the bedroom that she shared with her younger sister, who was asleep. A.B. testified that she did not scream because she was afraid of Ivy becoming violent. A.B. testified that Ivy had been violent with her mother in the past. A.B. also testified that she was positive that it was Ivy who licked and touched her, because she could see his face. When he was licking her, she could see the top of his face and the back of his head. AB.’s television was on in her room at the time. Ivy was wearing only his boxers (underwear).

¶ 4. Ivy told A.B. not to tell her mother what happened. A.B. testified that she pulled her covers over her head and started crying. A.B. testified that after Ivy left her room, he went to the bathroom, and she heard him running water. Ivy then went to her mother’s room. A.B. testified that when her mother came into her room, she did not tell her what had happened. Instead, A.B. told her mother that she had a bad dream about her grandmother. After her mother left, A.B. fell asleep.

¶ 5. The next morning, A.B. again told her mother that nothing was wrong. A.B.’s grandmother took her to Bible school. After Bible school, A.B., her grandmother, and her younger cousin, T.R., all went to the grocery store. A.B. confided in her cousin what had happened to her. T.R. told A.B.’s uncle what had happened, and he told A.B.’s grandmother. A.B.’s grandmother told her mother. A.B. subsequently spoke to a police officer about what had happened.

¶ 6. On cross-examination, the defense inquired as to how A.B. knew that it was 3:00 a.m. when Ivy came into her room and began licking her. A.B. clarified that she had an alarm clock in her room and she saw that it was 3:00 a.m. when she woke up.

¶ 7. Ivy testified that he was 37 years old at the time of the trial. Ivy had two prior felony convictions in Monroe County, Mississippi, for the sale of cocaine and served five years in prison on those convictions. Ivy testified that A.B. made the allegations to get him out of the house. Ivy testified that he was using drugs a few months before he married A.B.’s mother. Ivy testified that the marriage was unhappy. Ivy testified that he stayed away from the house so as not to be around his stepchildren while he was using drugs. He stated that on June 2, 2004, he was not using drugs and did nothing to A.B.

¶ 8. Ivy testified that on June 2, 2004, he came home around 2:30 a.m. He stated that he went through the house and checked on the “kids” and rubbed them on their heads. He testified that he got into bed at approximately 2:36 a.m. and had sex with his wife. He stated that he then went to sleep and slept until his wife woke him up as she was going to work.

¶ 9. A.B.’s mother, C.D., testified that Ivy moved in with her in April, and they were married in May. They lived in Caledonia, Lowndes County, Mississippi. However, C.D. stated that Ivy was hardly there even after they got married. At night, Ivy was usually not at home. Ivy stayed in Amory, Mississippi, primarily, even after they were married. C.D. testified that on June 2, 2004, Ivy came into the bedroom at 2:36 a.m. and woke her up. C.D. stated that the room was dark when Ivy woke her up so she looked at the clock. Ivy wanted to have sex, so they had sex.

¶ 10. After he finished, she went into her daughters’ bedroom. A.B. was sobbing. A.B. told her that she had a bad dream about her grandmother. C.D.’s other daughter was still asleep. The next morning, C.D. went to work from 7:00 a.m. until 9:00 a.m. When she came home, C.D. cooked breakfast and saw her children. Ivy was still there asleep. A.B. told her that nothing was wrong. C.D. had to be back at work at 11:00 a.m. and did not return home until close to 8:00 p.m. C.D. found no one at home when she arrived. C.D. then received a telephone call from her brother. After speaking to her brother, C.D. called Ivy and asked what he did to A.B. Ivy denied doing anything to A.B.

¶ 11. Investigator Tony Perkins of the Lowndes County Sheriffs Department investigated the allegations. Investigator Perkins spoke with AB.’s uncle and his son, T.R. Investigator Perkins spoke to A.B. with her uncle present. A.B.’s mother already had been transported to the hospital by ambulance. C.D. had become upset upon learning what had happened to her daughter. A.B. provided a written statement. Three weeks later, Ivy was located in Monroe County. Ivy was transported back to Lowndes County.

¶ 12. Before questioning Ivy, Investigator Perkins advised him of his rights, and Ivy signed a waiver of his rights. Investigator Perkins testified that Ivy told him that he had done “a lot of drugs” that night and he did things he normally would not do. He stated that “he may have done what he was accused of and just not remember it, because of the drugs.” However, Investigator Perkins testified that Ivy did not want those things in his written statement. Investigator Perkins typed the statement that Ivy signed. In the signed statement, Ivy stated in pertinent part:

I got married on May 10th of this year. Shortly after that, I got on drugs. I was really doing drugs about a month before I got married. I was on crack and cocaine.
I did not do anything out of the way to my stepdaughter. I may not remember everything that happened that night, but I do know that I did not do anything wrong with my stepdaughter.

DISCUSSION

I. J.N.O.V. and Weight of the Evidence

¶ 13. Ivy made a post-trial motion for J.N.O.V., or alternatively, a new trial. The trial court subsequently entered its order denying Ivy’s motion for J.N.O.V., or alternatively, a new trial. On appeal, Ivy raises only the issue of whether the verdict was against the overwhelming weight of the evidence. However, Ivy briefly discusses the sufficiency of the evidence in the context of his discussion of the weight of the evidence. Since this Court has tried to distinguish the two issues, we will address the two as separate and distinct assignments of error.

A. J.N.O.V.

¶ 14. Ivy made a post-trial motion for J.N.O.V. The trial court subsequently entered its order denying Ivy’s motion for J.N.O.V. A motion for J.N.O.V. challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). “[T]his Court properly reviews the ruling on the last occasion the challenge was made in the trial court.” Id. at 778. Here, this occurred when the trial court denied Ivy’s motion for J.N.O.V.

¶ 15. In Bush v. State, 895 So.2d 836, 843 (Miss.2005), this Court set out the standard of review for legal sufficiency as follows:

In Carr v. State, 208 So.2d 886, 889 (Miss.1968), we stated that in considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.”

The Court stated:

Should the facts and inferences considered in a challenge to the sufficiency of the evidence “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy is for the appellate court to reverse and render. Edwards v. State, 469 So.2d 68, 70 (Miss.1985) (citing May v. State, 460 So.2d 778, 781 (Miss.1984)); see also Dycus v. State, 875 So.2d 140, 164 (Miss. 2004). However, if a review of the evidence reveals that it is of such quality and weight that, “having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient. Edwards, 469 So.2d at 70.

Bush v. State, 895 So.2d at 843.

¶ 16. Considering the evidence in the light most favorable to the State, we find there was sufficient evidence to support a conviction of sexual battery and fondling. Miss.Code Ann. § 97-3-95(1), relating to sexual battery, provides:

(1) A person is guilty of sexual battery if he or she engages in sexual penetration with:
(a) Another person without his or her consent;
(b) A mentally defective, mentally incapacitated or physically helpless person;
(c) A child at least fourteen (14) but under sixteen (16) years of age, if the person is thirty-six (36) or more months older than the child; or
(d) A child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.

Miss.Code Ann. § 97-5-23, relating to fondling, provides:

(1) Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child under the age of sixteen (16) years, with or without the child’s consent, or a mentally defective, mentally incapacitated or physically helpless person as defined in Section 97-3-97, shall be guilty of a felony and, upon conviction thereof, shall be fined in a sum not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or be committed to the custody of the State Department of Corrections not less than two (2) years nor more than fifteen (15) years, or be punished by both such fine and imprisonment, at the discretion of the court.
(2) Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child younger than himself or herself and under the age of eighteen (18) years who is not such person’s spouse, with or without the child’s consent, when the person occupies a position of trust or authority over the child shall be guilty of a felony and, upon conviction thereof, shall be fined in a sum not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or be committed to the custody of the State Department of Corrections not less than two (2) years nor more than fifteen (15) years, or be punished by both such fine and imprisonment, at the discretion of the court. A person in a position of trust or authority over a child includes without limitation a child’s teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach.

¶ 17. There is no need to restate the facts in great detail that are provided in the facts section of the opinion. A.B. testified that Ivy licked her everywhere, including between her legs and her chest. Ivy penetrated A.B.’s vagina with his tongue. Ivy pulled off A.B.’s panties in order to fondle and lick her. He pulled up her shirt to lick her chest. He tried to insert his thumb inside A.B. A.B. was thirteen years old at the time, and Ivy was her stepfather. A.B. was able to see Ivy’s face when he was licking her, and A.B. identified Ivy in court for the record as the man who had performed those acts on her. A.B. was afraid Ivy would become violent if she told her mother or screamed for help.

¶ 18. Ivy argues that there were inconsistencies between AB.’s statements made to law enforcement officials and her testimony at trial. Ivy states that no exhibits were introduced at trial to prove his guilt. Ivy argues that there were inconsistencies regarding the time that the alleged conduct occurred. The jury heard testimony from A.B. and the defendant, Ivy, as to the allegations. The jury also heard from A.B.’s mother, C.D. The defense had the opportunity to cross-examine A.B. as to any discrepancies in her statements and testimony.

¶ 19. Despite any discrepancies in the witnesses’ testimony, the jury was left with the responsibility to weigh the credibility of these witnesses’ testimony at trial. As this Court has repeatedly held, the jury is the final arbiter of a witness’s credibility. Morgan v. State, 681 So.2d 82, 98 (Miss.1996); see also Spicer v. State, 921 So.2d 292, 312 (Miss.2006). In Spicer v. State, 921 So.2d at 311 (quoting Franklin v. State, 676 So.2d 287, 288 (Miss.1996)), this Court stated:

Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. [This Court] may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

¶20. Considering the evidence in the light most favorable to the State, there was sufficient evidence to convict Ivy of sexual battery and fondling. Accordingly, we find that the trial court did not err in denying Ivy’s motion for J.N.O.V. This assignment of error is without merit.

B. New Trial

¶ 21. A motion for new trial challenges the weight of the evidence. Sheffield v. State, 749 So.2d 123,127 (Miss. 1999). A reversal is warranted only if the trial court abused its discretion in denying a motion for new trial. Id. In Bush, 895 So.2d at 844, this Court set out the standard of review for weight of the evidence as follows:

When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Herring v. State, 691 So.2d 948, 957 (Miss.1997). We have stated that on a motion for new trial, the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss.2000). However, the evidence should be weighed in the light most favorable to the verdict. Herring, 691 So.2d at 957. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, “unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.” McQueen v. State, 423 So.2d 800, 803 (Miss.1982). Rather, as the “thirteenth juror,” the court simply disagrees with the jury’s resolution of the conflicting testimony. Id. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Id. Instead, the proper remedy is to grant a new trial.

¶ 22. Without re-discussing the testimony already stated within this opinion, the jury heard the testimony from all the State’s witnesses, including the defense’s cross-examination of those witnesses. A.B. testified in graphic detail as to the licking and touching that she endured from Ivy. Ivy exercised his right to testify, and testified that he did nothing wrong to A.B. Ivy testified that A.B. just wanted him out of the house. Investigator Perkins testified regarding what Ivy stated in his written statement as well as statements Ivy made that he did not want in the written statement. After considering the evidence presented, the jury returned a conviction against Ivy for sexual battery and fondling.

¶23. Here, no new trial is warranted, as the jury’s verdict is consistent with the weight of the evidence. Sitting as the “thirteenth juror,” we find that the evidence weighed in the light most favorable to the verdict supports the jury’s resolution of the conflicting testimony. Accordingly, the trial court did not err in denying Ivy’s motion for a new trial.

CONCLUSION

¶24. For the foregoing reasons, the judgment of the Circuit Court of Lowndes County, Mississippi, is affirmed.

¶ 25. COUNT I: CONVICTION OF SEXUAL BATTERY AS A HABITUAL OFFENDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND A FINE OF $10,000, AFFIRMED. COUNT II: CONVICTION OF FONDLING AS A HABITUAL OFFENDER AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND A FINE OF $5,000, AFFIRMED. SAID SENTENCES SHALL NOT BE REDUCED, SUSPENDED, NOR SHALL THE APPELLANT BE ELIGIBLE FOR PAROLE OR PROBATION. SENTENCE IN COUNT II SHALL RUN CONSECUTIVELY WITH THE SENTENCE IN COUNT I.

SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J„ CONCURS IN RESULT ONLY.

      . "A.B." will be used to identify the minor child in this case. Due to the issue raised by Ivy on appeal, it is necessary to discuss graphic facts involving the minor child.

      . "T.R.” is substituted for the cousin's name.

      . "C.D.” is used to identify A.B.'s mother.


author: MYERS, P.J.,

text:
    DAVIS ISLAND LAND CO., LLC, Appellant v. VICKSBURG WARREN SCHOOL DISTRICT and the State of Mississippi, Appellees.
    No. 2005-CA-00044-COA.
    Court of Appeals of Mississippi.
    March 21, 2006.
    Rehearing Denied July 25, 2006.

      Kenneth B. Rector, Vicksburg, attorney for appellant.
    Nancy Morse Parkes, M. James Chaney, Vicksburg, attorneys for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. On June 3, 2004, Davis Island Land Co. (Davis) filed a complaint in Warren County Chancery Court to confirm and quiet title to 95.75 acres of land located on Davis Island west of Vicksburg, Mississippi. Davis was seeking to prevent the Vicksburg Warren School District (School District) from marking, cutting or selling timber on the disputed property. The School District filed a motion to dismiss which was granted on December 10, 2004. Aggrieved by the ruling of the chancery court, Davis appeals raising the following issue:

I. WHETHER OR NOT THE CHANCELLOR ERRED IN DETERMINING THAT THE CLAIM OF DAVIS ISLAND FOR CONFIRMATION OF TITLE TO REAL ESTATE WAS BARRED BY THE DOCTRINE OF RES JUDICATA.

¶2. Finding no error, we affirm the ruling of the chancery court.

FACTS

¶ 3. This is a dispute over approximately 95.75 acres of land located on Davis Island, just west of Vicksburg, Mississippi. Davis purchased approximately 5,200 acres on the island in 1971, and also acquired the balance of a ninety-nine year lease of section sixteen school trust lands which expired in 1987. In anticipation of the lease expiration, the School District contacted Davis regarding its desire to locate the boundaries of section 16. The leased 16th section had been retained by the same owner of the 26th section for over seventy years, and the boundary line had become indistinct.

¶ 4. Davis and the School District agreed to share the expense of having the property surveyed by E.C. Burkhardt so that the boundary line between the property that was owned in fee simple and the property that was leased could be determined. In 1834 there was a government survey of the lands in question. In 1848 there was a government resurvey of the lands in question. The Burkhardt survey, which was allegedly prepared in reliance on the 1848 government resurvey, was completed in 1988 and both parties were furnished copies. Davis complained about the accuracy of the Burkhardt survey and claims that approximately ninety-five undetermined acres of said property is really in section 26 rather than section 16.

¶ 5. Despite disputing the results of the Burkhardt survey, in June 1990, 1995, and 2000, Davis executed five-year hunting and fishing leases with the School District for all of section 16, located in Warren County, Mississippi, containing 417.4 acres as shown by the survey of Burkhardt. Davis states that it executed these leases under duress because it felt it had no alternative. Davis owns all the land surrounding section 16, and stated that it could not afford all the problems that would arise from someone else leasing this section.

¶ 6. In 1996 and 2000, the School District advertised for bids to cut lumber from section 16. A contract was finalized between the School District and Anderson-Tully Veneers on October 16, 2000. On December 11, 2000, Davis filed a complaint in the United States District Court for the Southern District of Mississippi in which it sought declaratory judgment from the court establishing the boundaries of the subject land. This complaint was subsequently amended on April 10, 2001. Both Davis and the School District claimed ownership of the land.

¶ 7. On or about January 14, 2003, the U.S. District Court for the Southern District of Mississippi found that Davis’s suit for declaratory judgment was time-barred by the applicable Mississippi statute of limitations (Mississippi Code Annotated § 15-1-7) and dismissed the case with prejudice. As to the counterclaims brought by the School District, the district court dismissed these as state actions without prejudice. On October 14, 2003, the decision was affirmed by the United States Court of Appeals for the Fifth Circuit. On June 3, 2004, Davis filed a “Complaint to Confirm and Quiet Title” in the Chancery Court of Warren County seeking to prevent the School District from marking, cutting or selling timber on the disputed property. The School District subsequently filed a motion to dismiss or, in the alternative, for summary judgment. On December 10, 2004, this case was dismissed due to res judicata.

I. WHETHER OR NOT THE CHANCELLOR ERRED IN DETERMINING THAT THE CLAIM OF DAVIS ISLAND FOR CONFIRMATION OF TITLE TO REAL ESTATE WAS BARRED BY THE DOCTRINE OF RES JUDICATA.

¶ 8. Davis claims that the chancellor did not determine whether or not any issue or claim in the state court action had been adjudicated in the federal case. Davis goes on to argue that the chancellor relied upon the “four identities” of res judicata in error, when she should have ruled that the issue before the state court was not litigated in the federal case. The School District asserts that Davis is asking the state court to do the same thing it asked the federal court to do, which is determine ownership.

¶ 9. This Court decides whether or not summary judgment is appropriate by reviewing the issue de novo. Townsend v. Estate of Gilbert, 616 So.2d 333, 335 (Miss. 1993). When there is no genuine issue of material fact then summary judgment is appropriate. Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983). Once the party moving for summary judgment has shown the absence of material fact, the burden falls on the non-moving party to produce specific facts showing that there is a genuine issue of material fact. Fruchter v. Lynch Oil Co., 522 So.2d 195, 199 (Miss. 1988).

¶ 10. Davis filed suit in U.S. District Court pleading both a Fifth Amendment and Fourteenth Amendment violation. Davis also requested the court to find the 1848 survey void and to appoint a special master to re-establish boundary lines. The district court relied upon Mississippi Code Annotated § 15-1-7, in determining that the ten year statute of limitations had run; therefore, Davis was barred from bringing this action. Davis filed this complaint in state court asking the court to confirm the title in accordance with the 1834 survey. Even though the wording is different between the federal complaint and the state complaint, Davis is asking for the same relief.

¶ 11. The following four identities must be present for res judicata to apply: (1) identity of the subject matter of the action; (2) identity of the cause of action; (3)identity of the parties to the cause of action; and (4) identity of the quality or character of a person for or against whom the claim is made. Pro-Choice Mississippi v. Fordice, 716 So.2d 645, 665(¶ 69) (Miss.1998). A party will be barred from relitigating issues or those which should have been litigated when these four elements are met. Dunaway v. W.H. Hopper and Associates Inc., 422 So.2d 749, 751 (Miss.1982).

¶ 12. This case deals with the same subject matter, the ownership of approximately 95.75 acres of land located on Davis Island, just west of Vicksburg, Mississippi.

¶ 13. The second requirement, identity of the cause of action, is met when commonality is found in the underlying facts and circumstances for which the claim is asserted and relief is sought. Riley v. Moreland, 537 So.2d 1348, 1354 (Miss.1989). The usual test to determine whether or not the two causes of action are the same is whether or not the same evidence is necessary. McCorkle v. Loumiss Timber Co., 760 So.2d 845, 856(¶46) (Miss. Ct.App.2000). The cause of action in both cases is to confirm and quiet title and to determine which survey should be relied upon, the 1834 or the 1848. In order to determine this, the same evidence would be needed in the state action as was needed in the federal action.

¶ 14. The identities of the parties must be at least in privity with one another. Williams v. Vintage Petroleum, Inc., 825 So.2d 685, 689(¶ 17) (Miss.Ct.App. 2002). It is not necessary to use strict identity. Little v. V. & G. Welding Supply, Inc., 704 So.2d 1336, 1339(¶ 15) (Miss. 1997). “Privity” is a broad concept which is recognized and requires us to look at the surrounding circumstances in order to determine whether a claim preclusion is justified. Id. In both the federal case and the state case, Davis and the School District are the parties; therefore, the third identity requirement is met

¶ 15. The last identity is the quality or character of the person for or against whom the suit is brought. If someone appears in some limited or representative capacity in one case and personally in another, then the parties quality or character of the two actions is different. McCorkle, 760 So.2d at 856 (¶47). In the present case, both Davis Island and the School District are in the same capacity as the parties in both the federal action and the state action.

¶ 16. Therefore, since the four identities are met, we find that the chancellor was proper in granting the School District’s motion to dismiss based upon res judicata.

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

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


author: GRIFFIS, J.,

text:
    Carl HOBBS a/k/a Carl Douglas Hobbs, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01721-COA.
    Court of Appeals of Mississippi.
    April 4, 2006.
    Rehearing Denied Oct. 17, 2006.

      William R. Labarre, Hollandale, attorney for appellant.
    Office Of The Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., CHANDLER AND GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Carl Hobbs was convicted of the crime of grand larceny. Judge Ashley W. Hines sentenced him to serve a term of ten years in the custody of the Mississippi Department of Corrections, with seven years suspended on the condition that he serve five years supervised probation. Hobbs was further ordered to pay $3,338 restitution, $300 attorneys fees, $264 court costs, and $20 bond fee. Hobbs raises two issues on appeal: (1) whether the verdict was against the overwhelming weight of the evidence, and (2) whether mere possession of money gives rise to an inference of grand larceny. We find that the evidence was insufficient to warrant a conviction, and we reverse and render.

FACTS

¶ 2. On August 25, 2003, John Streeter went to the Union Planters Bank in Green-ville where he cashed checks totaling $3,338.04. Streeter obtained thirty-three one hundred dollar bills. Streeter then placed the envelope of money inside his van, beside his parking brake and placed his Bible on top to conceal it. Streeter then drove home. When he arrived, he went inside and left the money in the van with the windows rolled down and the doors unlocked.

¶ 3. Several of Streeter’s family members and Hobbs, who was an acquaintance from his church, were inside his home. According to the evidence presented, Hobbs asked Streeter if he could borrow thirteen dollars to get his car fixed. Streeter told him he did not have the money, because he had already paid bills. Hobbs then called his sister to ask her for the money. Later, Hobbs asked Streeter to drive him home, and Streeter agreed.

¶ 4. Streeter told Hobbs that he had to stop by Greenville Lumber Company first. Hobbs said he, too, needed to go there to check on some lumber. They arrived at Greenville Lumber Company and parked at the back, by the service entrance. Three Greenville Lumber Company employees were standing in the parking lot. Streeter and Hobbs both got out of the van at the same time. Streeter went inside to check on his lumber, and Hobbs stayed outside to check on his lumber. The van doors remained unlocked, and the windows were rolled down. Streeter testified that he did not see Hobbs or anyone else go to his van during this time. Hobbs then began to walk home, which was down the street from Greenville Lumber Company. Streeter emerged from the store and was told by the employees that Hobbs had left. Streeter saw him about three blocks away and asked him what happened. Hobbs told him to go on, and he could walk home from there.

¶ 5. Streeter then returned home. Once again, Streeter left his van windows down and his doors unlocked. Streeter remembered that he left his money in the van, so he went to retrieve it. Streeter then discovered that the money was missing.

¶ 6. Streeter immediately drove his van back to where he saw Hobbs. Streeter found Hobbs in the neighborhood where he last saw him. Streeter got out of his car and chased Hobbs with a knife, demanding his money. Hobbs denied stealing Streeter’s money and showed Streeter that his wallet was empty. Streeter testified all of this happened within ten minutes of leaving Greenville Lumber. Streeter threw the knife down and told Hobbs to come with him to his house. Hobbs refused; he feared that Streeter would kill him. Streeter then told Hobbs he was going to take his Bible to the police for fingerprints. The police, however, did not find Hobbs’s fingerprints on the Bible.

¶ 7. Hobbs testified that he then went to where he had stashed his own money. He said he had saved money for at least a month to buy a keyboard. About 2:30 p.m., Hobbs bought a keyboard for $548 from Barenis Music Store. Hobbs paid with six one hundred dollar bills. Hobbs had two additional one hundred dollar bills on him. Hobbs later paid a total of one hundred dollars to Lee Edward Stevenson, his landlord. Hobbs did not make this payment with a one hundred dollar bill. Hobbs owed Stevenson more money but did not pay it to him that afternoon.

¶ 8. The next day, Streeter went to Hobbs’s house and found the keyboard box in the backyard. Streeter took the box to the music store to ask if Hobbs had bought it. Streeter then told Hobbs that he was going to take him to the police. Hobbs told him he would go on his own.

¶ 9. The police arrested Hobbs for grand larceny. Hobbs gave a statement in which he said that he did not steal the money. Hobbs told the police that he played piano for three different churches that paid him about $175 in cash every Sunday, and he also gave music lessons for cash. Hobbs gave the names of the churches and the music student. Hobbs told the police that he had two stashes of money that he had saved — one at a house on East Alexander and one in the washing machine at his home on Ninth Street. The police never searched his home for the rest of the money. The police never took- statements from the three employees at Greenville Lumber Company. The police never contacted the churches or Hobbs’s music student in order to corroborate or refute Hobbs’s explanation. The money was never found.

STANDARD OF REVIEW

¶ 10. Requests for a directed verdict and motions for JNOV challenge the sufficiency of the evidence. In reviewing a sufficiency of the evidence claim, the Court considers the evidence in the light most favorable to the verdict. Bush v. State, 895 So.2d 836, 844(¶ 16) (Miss.2005). Usually, if any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we will uphold the verdict. Id. However, where the case is built on purely circumstantial evidence, as here, we must go further and determine:

whether a rational fact finder might reasonably conclude that the evidence excludes every reasonable hypothesis inconsistent with guilt. Put another way, “[i]f the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and to a theory of innocence ... then a reasonable jury must necessarily entertain a reasonable doubt.”

Shields v. State, 702 So.2d 380, 382 (Miss. 1997) (citations omitted) (quoting Clark v. Procunier, 755 F.2d 394, 396 (5th Cir. 1985)).

ANALYSIS

I. Was Hobbs entitled to a directed verdict or a JNOV?

II. Does the mere possession of money give rise to an inference of grand larceny?

¶ 11. Because both issues go to the sufficiency of the evidence, we consider these issues together.

¶ 12. Hobbs contends that the evidence was insufficient to sustain a grand larceny conviction. In particular, Hobbs argues he had no money immediately after the alleged larceny, the money he later spent did not belong to Streeter, and the evidence was consistent with reasonable theories of innocence. The State counters there was sufficient circumstantial evidence to sustain the conviction. To support this conclusion, the State argues that the evidence showed that Hobbs had no money before he rode with Streeter, and Hobbs had at least eight hundred dollar bills approximately two and a half hours after he rode with Streeter.

¶ 13. A person is guilty of grand larceny when he feloniously takes and carries away another’s personal property, worth $500 or more. Miss.Code Ann. § 97-17-41 (Supp.2005).

¶ 14. In most of the cases where circumstantial evidence has been held sufficient to support a grand larceny conviction, the fact that the property belonged to the victim was either not disputed, or there was an in-court identification that the property belonged to the victim. Brooks v. State, 695 So.2d 593, 594 (Miss. 1997); Smith v. State, 278 So.2d 408, 409-10 (Miss.1973); Coggins v. State, 234 Miss. 369, 373, 106 So.2d 388, 389 (1958); Haney v. State, 199 Miss. 568, 574-76, 24 So.2d 778, 778-79 (1946); Ray v. State, 864 So.2d 1031, 1033 (¶¶ 3-5) (Miss Ct.App.2004); Miles v. State, 864 So.2d 963, 966(¶ 12) (Miss.Ct.App.2003); Jones v. State, 819 So.2d 558, 560 (¶¶4-8) (Miss.Ct.App.2002).

¶ 15. Here, the ownership of the money was disputed. The stolen money was never found on Hobbs, let alone brought in for an in-court identification. On this basis alone, this case is distinguishable from most every circumstantial evidence case in which the conviction was upheld. The peculiarity is that this case deals with cash. Cash, by its very nature, is fungible and more difficult to identify as belonging to a particular person than a stolen chainsaw or shotgun. We focus our analysis on those circumstantial evidence cases that involved stolen cash.

¶ 16. In Cates v. State, 823 So.2d 1229 (Miss.Ct.App.2002), the stolen property was never found, and this Court upheld the sufficiency of the circumstantial evidence. Money and rings were stolen from a safe inside the bedroom closet of Beatrice Holmes. Id. at 1231(¶ 4). There was no sign of forced entry into the home or the safe. Id. The only three people with a key to the house were Holmes, her sister Ms. Windburn, and Robert Dean Cates, Holmes’s son. Id. at (¶ 5). These three individuals were also the only ones who knew the combination to the safe. Id. Holmes and Windburn were out of town during the crime. Id. at (¶ 4). This left Cates as the only person who had the opportunity to commit the larceny. He admitted to being in the home on the day in question and then leaving to gamble at the casinos in Vicksburg, even though he admitted to not having worked in quite a while. Id. at (¶ 6). It is unclear whether this Court used the correct standard of review. At the beginning of the analysis, this Court stated it would use the regular sufficiency of the evidence standard of review. Id. at 1231-32(¶ 10). The opinion then concludes that the State met its burden of proving the case beyond a reasonable doubt. Id. at 1232(¶ 11). The opinion then states that the correct standard of review was whether all reasonable hypotheses have been excluded, but still concluded that the case met the regular sufficiency of the evidence standard of review. Id. at 1232(¶ 12).

¶ 17. In this case and in Cates, the stolen money was never recovered. However, the similarities end there. There was no evidence that Hobbs was ever alone in the van. Cates admitted to being alone in the house on the day of the burglary. Cates was the only one with the opportunity to steal the money. The same cannot be said here. Streeter rode around town with the money in his van. It was parked, unlocked and with the windows down. The van was unattended on at least three occasions. There are at least three other individuals, the Greenville Lumber employees, who were near the van and had the opportunity to take the money. There was evidence that Cates knew the money and rings were in the safe. Id. at 1232 (¶ 11). There was absolutely no evidence here that Hobbs even knew there was money in Streeter’s van. In fact, just before they left, Streeter told Hobbs he did not have any money on him, because he already had paid his bills. We find Cates does not govern the outcome of this case.

¶ 18. Next, we consider Haney v. State, 199 Miss. 568, 574, 24 So.2d 778, 778 (1946). Houston Haney was accused of stealing $440 out of Roberta Jefferson’s purse while she was asleep when they were riding together. Id. at 575, 24 So.2d at 778. The stolen cash was made up of twenty-one twenty dollar bills and two ten dollar bills. Id. at 574-75, 24 So.2d at 778. On one of the twenty dollar bills, Jefferson had written the initials of her husband, “C.H.J.,” because this was one of the last things he gave her before he went off to war, where he was eventually killed. Id. at 575-76, 24 So.2d at 778-79. She kept this bill as a souvenir. Id., 24 So.2d at 778-79. Haney was found with sixteen twenty dollar bills on him, among which was the specially marked bill, along with other currency, all totaling $400.65. Id. at 576, 24 So.2d at 779. Mrs. Haney testified that the specially marked twenty dollar bill came out of her own purse and that she gave it to her husband shortly before his arrest. Id. However, Jefferson denied ever giving Mrs. Haney the specially marked bill. Id. Given these facts, the court upheld the conviction. Id. at 577, 24 So.2d at 779.

¶ 19. Haney is distinguishable from this case. Haney was found with the money on him, and the victim was able to positively identify the money as belonging to her. Id. at 575-76, 24 So.2d at 778-79. Here, ten minutes after the alleged theft, Hobbs did not have any money on him. He was seen with eight one hundred dollar bills two and a half hours later. However, there was never a positive identification that this was Streeter’s money.

¶ 20. Furthermore, Haney’s explanation of the money was refuted by the victim. Id. at 576, 24 So.2d at 779. Hobbs’s explanation for the money was never even investigated by the police nor the prosecution, let alone refuted by a single State’s witness. Haney simply does not apply to this case.

¶ 21. In Williamson v. State, 229 Miss. 305, 314-15, 90 So.2d 657, 661 (1956), the court held that the circumstantial evidence was insufficient. Thomas Williamson was convicted of grand larceny for stealing $140 out of Will Underwood’s wallet. Id. at 307, 90 So.2d at 657. Williamson, Underwood and two others were at a mill late one night. Id. at 307-08, 90 So.2d at 658. At one point, Underwood took out his wallet, put it on the table, and bet Williamson fifty dollars as to what time it was. Id. at 310, 90 So.2d at 659. When Williamson refused to bet, Underwood placed his wallet back in his pocket, which he zipped shut. Id. Later on, Underwood became inebriated to the point that he could not walk without assistance. Id. at 308, 90 So.2d at 658. Williamson helped him walk around the room and tried to sober him. Id. at 310, 90 So.2d at 659. Underwood testified Williamson drove him away from the mill. Id. at 310-11, 90 So.2d at 659. Underwood woke up the next day out in the woods. Id. at 311, 90 So.2d at 659. There were several people around in the woods. Id. at 312, 90 So.2d at 660. Underwood then discovered his money missing. Id. at 314, 90 So.2d at 661. He accused Williamson of spiking his drink and taking his wallet when he was helping him walk around the room. Id. at 309-12, 90 So.2d at 658-60.

¶ 22. The supreme court reversed the conviction. Id. at 315, 90 So.2d at 661. The court ruled that there were several reasonable hypotheses consistent with innocence. Id. at 314-15, 90 So.2d at 661. As for one such hypothesis, the court explained, “In fact, it is a reasonable hypothesis that [Underwood] may have lost his billfold during the nearly .twelve hours thereafter during which he” was so inebriated he could not remember anything. Id. at 314, 90 So.2d at 661. There was also evidence that others had the opportunity to take Underwood’s money. Id. at 307-12, 90 So.2d at 657-60.

¶ 23. The facts in Williamson are similar to the case at bar. In each case, the police did not find the missing money on either defendant. In both cases, the evidence indicated other people had the opportunity to take the money. Additionally, both cases present a question of whether the money ever existed in the first place. Like Williamson, there are other reasonable hypothesis as to what happened to the money. Because the money was never found, we cannot rule out the possibility that Streeter lost the money. Because there were other people with access to the van, a second reasonable hypothesis is that someone else took the money. These are at least two reasonable hypotheses inconsistent with Hobbs’s guilt that the evidence fails to exclude.

¶ 24. Frankly, there is even less evidence against Hobbs than there was against Williamson. For example, Williamson was told there was at least fifty dollars in Underwood’s billfold; however, no evidence revealed Hobbs even knew there was money in the van. Id. at 310, 90 So.2d at 659.

¶ 25. Given our standard of review, we are compelled to reverse for lack of sufficient evidence. Where the case is built on purely circumstantial evidence, “[i]f the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and to a theory of innocence ... then a reasonable jury must necessarily entertain a reasonable doubt.” Clark v. Procurer, 755 F.2d 394, 396 (5th Cir.1985). Here, the evidence gives nearly equal support to the views that Streeter lost his money, or someone else stole it, as it does that Hobbs stole it. The $800 Hobbs used to purchase the keyboard was never identified as belonging to Streeter. Hobbs’s house was never searched for the alleged remaining funds. Hobbs’s explanation was never investigated. Instead, it was ignored by the State as being “irrelevant.” The Greenville Lumber employees were never interviewed as witnesses nor as suspects.

¶ 26. The State rested its entire case on the fact that Hobbs asked for money before riding with Streeter and had money two and a half hours later, even though it was undisputed that Hobbs had no money ten minutes after the ride. This was not sufficient evidence to sustain the conviction.

CONCLUSION

¶ 27. We find that the evidence failed to exclude every reasonable hypothesis consistent with innocence. Therefore, the evidence offered was insufficient to sustain a grand larceny conviction. We reverse and render Hobbs’s conviction.

Z¶ 28. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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