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

text:
    Steven HAYNES, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01440-COA.
    Court of Appeals of Mississippi.
    Nov. 28, 2006.
    Steven Haynes, Appellant, pro se.
    Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.
    Before KING, C.J., SOUTHWICK and IRVING, JJ.
   IRVING, J.,

for the Court.

¶ 1. After his conviction and sentencing for possession of cocaine with intent to distribute, Steven Haynes filed a pro se motion for post-conviction relief, which the Pike County Circuit Court denied. Aggrieved, Haynes appeals and asserts that the court erred in not altering Haynes’ sentence or allowing Haynes to withdraw his guilty plea, and that the court erred in refusing to hold an evidentiary hearing on Haynes’ motion.

¶ 2. Finding error, we reverse and remand.

FACTS

¶ 3. On August 16, 2004, Haynes withdrew his previous plea of not guilty and entered a plea of guilty, pursuant to a plea agreement negotiated by his attorney, Thomas Welch, Jr., with a Pike County prosecutor. This agreement, as read into the record by the prosecutor at Haynes’ guilty plea hearing, was that “the State recommends 25 years, 20 suspended with 5 years to serve and 5 years probation. This count to run concurrently with the defendant’s current sentence, or the remainder of the defendant’s current sentence .... ” The court accepted this recommendation and sentenced Haynes to twenty-five years, with five years to serve, the five years to run concurrently to a prior sentence that Haynes was serving at the time of the hearing.

¶ 4. After his incarceration on this charge, Haynes requested a copy of his time sheet and discovered that he would not be released until 2009. Haynes believed, allegedly because of statements made to him by Welch, that he would be released in 2006, when he finished serving time on his prior conviction. Haynes contacted Welch, who sent him the following letter which we quote verbatim:

I have spoken with your father twice about this. When last he and I spoke, the MDOC website had you being released in 2006, like it was to be originally. Apparently, through your asking questions or your father or someone, you made the folks mad and [they] have since changed your release date to 2009. Before you go nuts, calm down. Our agreement, the one that you pled guilty to, had the five years running concurrently with what you were serving. I will have this fixed with MDOC. They don’t like being shown up, as you probably know, so they’ll balk but it’ll get done. If not, I will file a Post Conviction Release [sic] on the matter and have it straightened out that way. I have run into this situation before and I have had to get it fixed with PCR and I will do so in your case, if needs be.
It will be taken care of. Quit listening to the folks in there. They got you an extra three years from MDOC that will have to be taken care of.

(emphasis added). After receiving this letter, Haynes heard nothing further from Welch, and Haynes eventually filed the current post-conviction motion pro se.

¶ 5. In his motion for post-conviction relief, Haynes asserted that his sentence was running consecutively instead of concurrently. He also pointed out that his time sheet directly contradicted the information told to him by his attorney. Haynes attached the letter sent to him by Welch. The court denied Haynes’ motion for post-conviction relief without mentioning or addressing the letter from Welch.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Correction of Order/Withdraival of Plea

¶ 6. We do not address the merits of this issue here, because we find error in the court’s failure to grant an evidentiary hearing.

2. Evidential Hearing

¶ 7. The State, quoting McNabb v. State, 915 So.2d 478, 480(¶ 5) (Miss.Ct. App.2005), contends that Haynes is not entitled to an evidentiary hearing because “a circuit court may dismiss a petition for post-conviction relief without an evidentia-ry hearing when it plainly appears from the petition, the court’s files, and prior proceedings that the petitioner is not entitled to relief.” While the State accurately quotes the general law on evidentiary hearings, Mississippi law entitles Haynes to an evidentiary hearing in this instance.

¶ 8. The Mississippi Supreme Court has specifically held: “failure to mention something concerning parole eligibility may be no problem, but erroneous information concerning parole and sentencing at least entitles the petitioner to an eviden-tiary hearing on whether he relied on the erroneous information.” Fairley v. State, 834 So.2d 704, 707(¶ 8) (Miss.2003). Here, the record reflects a strong likelihood that Haynes was given erroneous information concerning the effect or meaning of a concurrent sentence. The letter from Welch indicates that he had told Haynes that Haynes’ present sentence would terminate upon completion of Haynes’ prior sentence. If Welch had not told Haynes this, it is unclear to this Court why Welch would tell Haynes that “the MDOC website had you being released in 2006, like it ivas to be originally ” and “[tjhey got you an extra three years from MDOC.” Welch’s statements in his letter to Haynes indicate that Haynes was given erroneous information concerning how his concurrent sentences would run and when each would terminate. As such, Haynes is entitled to an eviden-tiary hearing to determine whether he relied on the erroneous information from Welch.

¶ 9. The dissent characterizes the issue as a misunderstanding or an “appearance of a misunderstanding” between Haynes and his lawyer concerning the correct interpretation of a concurrent sentence and accuses the majority of concluding that this misunderstanding “somehow vitiates the voluntariness of [Haynes’] plea.” It appears that the dissent misreads Haynes’ PCR motion, his brief, and our holding. First, the record does not indicate that there was any misunderstanding between Haynes and his lawyer, and nothing in our opinion says so. Haynes and his lawyer were of one accord. The italicized portion of Welch’s letter, quoted above, makes this point more eloquently than anything we have said, or could say, in this opinion. Second, we do not hold that Haynes’ guilty plea must be set aside. Rather, we hold that, based on the letter’s content, there is reason to believe that Haynes’ attorney gave Haynes erroneous advice about when Haynes could expect to be released from prison if he pleaded guilty. At the eviden-tiary hearing, it will be up to the trial court to decide if such erroneous advice was given and if so, the effect of that advice on Haynes’ decision to plead guilty.

¶ 10. We are unwilling to trivialize the effect of the erroneous advice that Welch may have given to Haynes and Haynes’ reliance on that advice. In a recent decision by our supreme court, we are reminded of the significant and substantial relationship between the criminal defense lawyer and his client:

The relationship of the accused to his lawyer provides a critical factual context here. As he stands before the bar of justice, the indicted defendant often has few friends. The one person in the world, upon whose judgment and advise, skill and experience, loyalty and integrity that defendant must be able to rely, is his lawyer. This is as it should be. Any rational defendant is going to rely heavily upon his lawyer’s advise as to how he should respond to the trial judge’s questions at the plea hearing. He may also rationally rely on his lawyer’s advice what the outcome of the plea hearing will be. Yet it is the defendant, not the lawyer, who enters the plea. It is the defendant, not the lawyer, who is going to serve the time. It is the defendant, not the lawyer, whose constitutional rights are being waived at the plea hearing. It is the defendant’s plea and accompanying waiver of rights which under established law must be voluntarily and intelligently given, with full appreciation of the consequences to follow.

Hannah v. State, 943 So.2d 20 (¶ 8) (Miss.2006) (quoting Myers v. State, 583 So.2d 174, 178 (Miss.1991)).

¶ 11. The dissent appears to attach some significance to the fact that Haynes did not couch his petition for post-conviction relief or his appeal brief in terms of ineffective assistance of counsel. However, we note that Haynes is proceeding before us pro se, without the benefit of trained legal advice. We also note that while Haynes did not caption any of the issues in his brief as “ineffective assistance of counsel,” he does state the following: “A defendant who pleads guilty to a crime is prejudiced by his counsel’s erroneous advice if he would have insisted on going to trial if he had been correctly informed.” Haynes also states in his brief that “his attorney specifically advised him that a good deal had been reached which required the prosecution to recommend a specific sentence which would end at the completion of his present eight-year sentence.” Haynes also made the latter assertion in his PCR motion.

¶ 12. In Hannah, our supreme court reminded us again that courts should not hold pro se litigants to exacting standards of pleading: “Where, as here, a prisoner is proceeding pro se, we take that fact into account and, in our discretion, credit not so well pleaded [sic] allegations, so that a prisoner’s meritorious complaint may not be lost because inartfully drafted.” Id. at n. 1.

¶ 13. Based on the allegations contained in Haynes’ PCR motion, the lower court should have conducted an evidentiary hearing on the voluntariness of Haynes’ guilty plea, regardless of Haynes’ failure to phrase his petition in terms of ineffective assistance of counsel, because Welch’s letter clearly indicates that erroneous advice was given which implicates the volun-tariness of Haynes’ plea. Therefore, the discrepancy between the reality of Haynes’ sentence and the advice given by Welch was apparent from the documents that were given to the lower court to review with Haynes’ petition for relief.

¶ 14. The dissent cannot conceive that Haynes could have truly believed that he was receiving a sentence that would end at the same time as his previous sentence. In the dissent’s view, Haynes could not reasonably believe that he could plead guilty to a felony and receive a sentence with no additional jail time beyond the time for the conviction which Haynes was presently serving. We reiterate that the letter from Welch strongly indicates that Welch told Haynes that he would get out of jail in 2006. In light of such information, Haynes had the choice of either believing and trusting his attorney, or relying on his own inexperience and disbelieving his attorney. Given such a choice, this Court is not prepared to say that it was unreasonable for Haynes to rely on the advice of his attorney. Furthermore, we note that Haynes was not getting a new conviction for free, even if he were to be released in 2006, because the remaining twenty years of his sentence would still be hanging over his head, waiting for reinstatement in the event of wrongdoing. With such a threat, it is not clear to this Court why the dissent believes that Haynes’ faith in his attorney’s advice was “patently ludicrous.” In effect, the dissent would institute a rule that defendants should not trust the advice of their counsel in making guilty pleas, a result that is clearly against public policy and prior Mississippi case law.

¶ 15. Finally, the dissent also contends that allowing Haynes an evidentiary hearing somehow goes against Haynes’ sworn statements in court, because Haynes responded in the negative when the court asked him if anyone had promised him anything in return for his guilty plea. In the context of a guilty plea colloquy, it is apparent to this Court that the something “promised” must be something more than simply the terms of the guilty plea. The dissent’s interpretation of Haynes’ response would require that every defendant in every guilty plea hearing answer affirmatively to the above question, unless the plea is an open plea without a recommendation, because the only answer Haynes could have given to the court was a recitation of the terms of the prosecution’s recommendation in his case. His attorney did not promise him that he would get out in 2006 for any reason other than Welch’s apparent incorrect advice to Haynes regarding the meaning of “concurrent.” The only thing promised to Haynes, as to his understanding, was that his sentences would run concurrently, and it appears that Welch had told him that that meant that he would get out of prison in 2006. Clearly, the above question, commonly asked during plea hearings, cannot mean that a defendant must answer, “Yes, I am receiving a recommendation for a sentence of ‘x’ years, to run concurrently to.... ” The question, in context, clearly implies a promise of something more to a defendant to facilitate a guilty plea.

¶ 16. In conclusion, we again reiterate that our holding is not that Haynes is entitled to withdraw his plea. We hold only that he is entitled to an evidentiary hearing. If the court finds that Haynes was indeed given erroneous advice that impacted the voluntariness of his plea, the court should be guided by existing precedent that in order for a guilty plea to be valid the defendant must have entered it knowingly and voluntarily. “In order to meet constitutional standards, a guilty plea must be voluntarily” and intelligently made. Weatherspoon v. State, 736 So.2d 419, 421(¶ 5) (Miss.Ct.App.1999) (citing Henderson v. Morgan, 426 U.S. 637, 653, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976)). “A plea of guilty is not voluntary if induced by fear, violence, deception, or improper inducements.” URCCC 8.04.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY DENYING POST-CONVICTION RELIEF IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

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

ROBERTS, J.,

Dissenting:

¶ 18. Because I conclude that it plainly appears from the face of the motion, all annexed exhibits, and prior proceedings that Haynes is not entitled to any relief, I find that the trial judge got it right when he summarily dismissed Haynes PCR petition without an evidentiary hearing. My learned colleagues conclude that Haynes’s alleged misunderstanding with his attorney concerning the correct interpretation of a “concurrent” sentence somehow vitiates the voluntariness of his plea. It is my position that unilateral misunderstanding by the defendant or his counsel about what date the defendant can reasonably be expected to be released from custody of the Department of Corrections cannot serve as grounds to withdraw a plea; especially when that expectation is objectively unreasonable, illegal, and patently ludicrous. Haynes got exactly the sentence he sought when he plea bargained with the prosecutor. I am compelled to dissent.

¶ 19. Just like the circuit court judge, we are charged with examining all exhibits attached to the pleadings. Fortunately, or maybe unfortunately for Haynes, he attached as an exhibit to his brief a copy of his time computation sheet from the Mississippi Department of Corrections (MDOC) — an official record maintained by the records office of the MDOC. The record does not reflect the exact circumstances of Haynes’s earlier arrest or convictions, but in any event, the time computation sheet indicates that on May 15, 1998, Haynes started serving time incident to two convictions. It is clear that the Pike County Circuit Court sentenced Haynes to one eight year sentence for selling cocaine and another eight year sentence for possession of cocaine. Additionally, the circuit court set the two eight year sentences to run concurrently with one another.

¶ 20. Apparently, Haynes was released on earned release supervision (ERS) on October 16, 2003. As best we can tell, Haynes escaped or absconded supervision from his ERS status on December 11, 2003. It also appears that Haynes was recaptured on January 18, 2004. Based on Haynes’s escape, his earned time release status was revoked. As a result, Haynes had to serve the remainder of his eight year sentence. That sentence was set to end on July 15, 2006.

¶ 21. Again, the record is not entirely clear, but it appears that Haynes committed another drug offense in Pike County while on ERS and before his recapture. The record does not contain an indictment or a criminal information. Regardless, it appears that Haynes originally waived arraignment and pled not guilty to that charge. Another document attached as an exhibit to Haynes’s brief titled as “Change of Plea and Sentence” makes it obvious that Haynes changed his mind and decided to plead guilty.

¶ 22. There is no dispute that, on August 16, 2004, Haynes pled guilty to “unlawful possession of at least one-tenth of a gram but less than two grams of cocaine with intent to distribute.” Haynes’s charge was enhanced due to his prior May of 1998 convictions. Therefore, when Haynes stood before Judge Smith on August 16, 2004, on the charge of possession of cocaine with intent to sell, he knew full well the following; he was a twice prior convicted felon who had been sentenced to and served more than one year in custody on each conviction, he was a prior controlled substance violator, he had been charged as a double enhanced sentence drug violator, his charge of possession with intent to sell occurred while he was in Pike County on ERS status, and that if convicted he could possibly receive a maximum sentence of sixty years in custody.

¶ 23. The circuit court sentenced Haynes to twenty-five years in the custody of the Mississippi Department of Corrections. The circuit court ordered that Haynes serve the first five years of that sentence and placed Haynes in post-release supervision for the remaining twenty years. Additionally, the circuit court noted that only the first five years of that post-release supervision would be on a reporting supervised basis, while the remaining fifteen years would be on a non-reporting, unsupervised basis. Finally, the circuit court noted that Haynes’s sentence would run concurrently with the remainder of Haynes’s sentence for his 1998 convictions. At that time, Haynes had approximately two years remaining on his 1998 sentences. That meant that Haynes’s 2004 sentence of five years would overlap the 1998 sentences by two years.

¶ 24. According to Haynes, he learned that he misunderstood the plea agreement once he returned to custody. To that end, on February 8, 2005, Haynes filed a motion to withdraw his guilty plea or correct his sentence. The motion was, in essence, a motion for post-conviction relief. Within that motion, Haynes claimed that he and his attorney were under the impression that, by running concurrently with the 1998 sentences, his five year sentence imposed in 2004 would terminate when the 1998 sentences terminated in 2006. According to Haynes, because his 2004 sentence did not terminate when the 1998 sentences terminated, the 2004 sentence ran consecutive to the 1998 sentences, rather than concurrent. Haynes requested that the circuit court either adjust his sentence to correspond to his understanding of the plea agreement or vacate his plea entirely. As mentioned, the circuit court dismissed Haynes’s motion without conducting an evidentiary hearing.

¶25. Haynes appeals and raises two specific issues. First, Haynes claims the circuit court erred when it overruled his motion to correct his sentence or withdraw his guilty plea. Haynes argues that he is actually serving his 2004 sentence consecutive to his 1998 sentences rather than concurrent because there is a two-year overlap. According to Haynes that overlap amounts to a breach of his plea agreement. Second, Haynes claimed the circuit court erred when it did not conduct an evidentia-ry hearing.

¶ 26. To be sure, there is no doubt that Haynes misunderstands the nature of his concurrent sentences. In Smith v. State, 853 So.2d 1277 (Miss.Ct.App.2003), a petitioner claimed that, because his Mississippi sentences ran concurrently with his Texas sentence, he was entitled to release from prison in Mississippi when he was paroled in Texas. Id. at (¶ 2). The Smith Court stated, “[w]hen two sentences run concurrently, it merely means that, for each day in custody while serving both sentences, the inmate receives credit toward each sentence. Concurrent sentences do not necessarily begin and end at the same time-they simply run together during the time that they overlap.” Id. at (¶ 6) (quoting Bullard v. Department of Corrections, 949 P.2d 999, 1002 (Colo.1997)). What is troubling is Haynes’s assertion that his attorney, Thomas P. Welch, gave him the impression that his 2004 sentence would terminate upon the expiration of his 1998 sentences. The purported letter from Welch attached to Haynes’s brief corroborates Haynes’s assertion of a misunderstanding. Welch seemed to guarantee a result through post-conviction relief proceedings or otherwise. However, Haynes claims that he was never able to contact Welch afterwards. It is unclear why Haynes was unable to contact Welch, but the fact remains that there seems to be a misunderstanding.

¶ 27. It is at this point in the analysis that the majority and I disagree. The majority finds Haynes entitled to an evi-dentiary hearing based solely on the appearance of a misunderstanding. I would hold that more is necessary. In my opinion, it appears that Haynes clearly misunderstands the nature of a concurrent sentence, and possibly even that Welch misunderstood the plea agreement. Be that as it may, I am of the opinion that it plainly appears from the petition, the court’s files, and prior proceedings that Haynes is not entitled to relief. Accordingly, I would hold that the circuit court did not err when it dismissed Haynes’s petition for post-conviction relief without conducting an evidentiary hearing.

¶ 28. I find it appropriate to note just what Haynes argues. He does not argue that Welch rendered ineffective assistance of counsel, and for good reason. In all actuality, Haynes benefitted from Welch’s counsel, or at least the plea bargain that Welch negotiated, in that Haynes received an impermissible sentence. Haynes should have never received a concurrent sentence. According to section 99-19-21(2) of the Mississippi Code Annotated (Rev.2000):

When a person is sentenced to imprisonment for a felony committed while the person was on ... earned-release supervision, post-release supervision or suspended sentence, the imprisonment shall commence at the termination of the imprisonment for the preceding conviction. The term of imprisonment for a felony committed during parole, probation, earned-release supervision, post-release supervision or suspended sentence shall not run concurrently with any preceding term of imprisonment. If the person is not imprisoned in a penitentiary for the preceding conviction, he shall be placed immediately in the custody of the Department of Corrections to serve the term of imprisonment for the felony committed while on parole, probation, earned-release supervision, post-release supervision or suspended sentence.

(emphasis added). “Clearly, under Mississippi law, a convict sentenced for a crime committed while on probation is not eligible for a concurrent sentence for the second crime.” Johnson v. State, 909 So.2d 1149(¶ 7) (Miss.Ct.App.2005) (citing Coleman v. State, 772 So.2d 1101 (¶ 6) (Miss. Ct.App.2000)).

¶ 29. The basic undertone of Haynes’s argument is that he did not plead guilty knowingly or intelligently. Haynes claims he did not fully appreciate the overlapping quality of his concurrent sentence. According to Haynes, his second sentence should have ended when his previous sentence expired. In all actuality, Haynes claims he expected to receive a “free crime.”

¶ 30. My problem with Haynes’s assertion is two-fold. First, Haynes received the exact sentence that the prosecution agreed upon. The record contains no indication that the prosecution agreed that Haynes’s 2004 sentence would expire when his 1998 sentences expired. The agreement simply was that Haynes’s 2004 sentence would run concurrent with his 1998 sentences. It cannot be said that the circuit court breached the agreement that was put before it when it sentenced Haynes as it did.

¶ 81. Second, Haynes had multiple opportunities to make the sentencing court aware of his understanding of the concurrent nature of his 2004 sentence and did not. Had Haynes told the sentencing court that he pled guilty in exchange for a sentence that terminated when the 1998 sentences terminated, then I would be more likely to agree with the majority. That did not occur in this case. The exact opposite occurred. During Haynes’s guilty plea hearing, the circuit court asked Haynes, “[h]as anyone threatened, abused, or promised you anything to cause you to want to plead guilty?” Haynes told the circuit court, “No, sir.”

¶ 32. Haynes did not tell the circuit court that his attorney promised him that any sentence he received would terminate when his 1998 sentences terminated. Nor did Haynes claim that the prosecution promised him that his sentence would be coterminous with the 1998 sentences. In fact, Haynes has never claimed that the prosecution promised him such would occur.

¶ 33. “Great weight is given to statements made under oath and in open court during sentencing.” Sanchez v. State, 913 So.2d 1024(¶ 8) (Miss.Ct.App.2005). It is appropriate for a trial court to place great weight on statements made during guilty plea hearings, as “[t]here should be a strong presumption of validity of anyone’s statement under oath.” Id. In effect, Haynes swore to one thing before the circuit court, yet now swears to the opposite. Haynes swore that no one promised him anything in exchange for his guilty plea. However, he now claims that his attorney told him his 2004 sentence would terminate when his 1998 sentence expired.

¶ 34. Though this precise issue is one of first impression in Mississippi, it has arisen elsewhere. In a Missouri case, a petitioner sought to withdraw his guilty plea on the basis that it was involuntary because he believed his sentence would be concurrent with a previous sentence and that his first and second sentences would terminate at the same time. Daniels v. State, 454 S.W.2d 17, 18 (Mo.1970). As in the present case, the petitioner in Daniels claimed he had an understanding “not from the court” or prosecutors, but with his lawyer, that his sentences would end at the same time. That is, the petitioner claimed his lawyer assured him of that result.

¶ 35. The Missouri Supreme Court refused to allow the petitioner to withdraw his guilty plea. The Missouri court reasoned that, under the petitioner’s theory, the only punishment for the petitioner’s subsequent robberies, committed during a period of escape from prison, would be the mere formality of a record of two more convictions and no additional punishment. The Daniels court also found that the petitioner’s claim was belied by facts indicating that the petitioner was aware of the differences between concurrent and consecutive sentences.

¶ 36. Here, the circuit court informed Haynes that he would have to “serve the first [five years of his twenty-five year sentence] concurrent with [his then] present sentence.” Haynes had less than two years to serve on his 1998 sentences at that time. It defies logic to assume that one can serve five years in less than two years.

¶ 37. What is more, Haynes’s first sentences stemmed from two 1998 drug convictions. Haynes received earned-release supervision. Approximately six years later, Haynes escaped or otherwise failed to report while on ERS. During his “escape,” Haynes committed another drug offense. That second offense, committed six years after the 1998 offenses, is in no way linked to his 1998 offenses. Accordingly, there was no reason to assume that the sentences merit co-termination.

¶ 38. In People v. Thompson, 29 Ill. App.3d 334, 330 N.E.2d 535, 536 (1975), a petitioner pled guilty to burglary. The sentencing court set the petitioner’s sentence to run concurrently to whatever sentence the Illinois parole board rendered incident to a related parole violation. As it turned out, the burglary sentence was longer than the parole board’s sentence for the parole violation. The petitioner claimed the trial court should have allowed the petitioner to withdraw his guilty plea because he did not understand the meaning of a concurrent sentence.

¶ 39. In Thompson, the petitioner even mentioned his understanding of the concurrent nature of the sentences during his guilty plea hearing. During a subsequent hearing, the petitioner’s attorney told the trial court that the petitioner was confused about the plea agreement. The petitioner’s attorney told the trial court that the petitioner thought he would get no more time for his second sentence than he would have on his first.

¶ 40. Notwithstanding the petitioner’s misconception, the Thompson court refused to allow the petitioner to withdraw his guilty plea. The Thompson court reasoned that the petitioner would not be permitted to withdraw his plea because (a) the trial court admonished the petitioner regarding the nature of the charge, his rights to a jury trial, and the consequences of his plea, (b) there was no indication that the petitioner had a defense to the burglary charge, (c) the petitioner did not argue that his misunderstanding of the term “concurrent” was apparent to the trial court when he pled guilty, (d) the record did not show that the trial court or the prosecutor attempted to mislead the petitioner or otherwise contributed to the petitioner’s misconception, (e) the petitioner’s lawyer stated, on the record and in the petitioner’s presence, that he explained the plea agreement to the petitioner, (f) the record showed a mutual manifestation of assent to be bound by the plea agreement, (g) the petitioner had ample opportunity to dispel any misconceptions, and (h) the petitioner twice asserted that he understood the conditions of the plea agreement.

¶ 41. The Thompson court stated that to allow the petitioner to withdraw would enable any petitioner to withdraw a guilty plea merely by claiming that he had a mistaken assumption about an inducing reason of a plea agreement to which he previously assented in open court. Further, the court held that where the record shows a mutual manifestation of assent, a petitioner’s subsequent claim of mutual mistake in assumption regarding an inducing reason for a guilty plea will not necessarily form a basis to vacate the plea.

¶ 42. In my opinion, the record plainly shows that, as far as the sentencing court could tell at the sentencing hearing, the prosecution and Haynes evinced a mutual manifestation of assent to be bound by the plea agreement as stated by the prosecution and accepted by Haynes. Haynes does not claim that the sentencing court should have been aware of his misunderstanding of the concurrent nature of his sentences. The record does not show that the prosecution or the sentencing court contributed to Haynes’s misunderstanding. It is possible that Haynes’s own attorney contributed to Haynes’s misunderstanding, but Haynes does not advance a claim of ineffective assistance of counsel.

¶43. Rather, Haynes wants to be released from custody or he wants to withdraw his guilty plea. It appears that Haynes is not aware just how beneficial his guilty plea was. He avoided a mandatory consecutive sentence. Even had he received five years to serve of a twenty-five year sentence, he would only have recently begun serving that sentence. What is more, Haynes avoided a possible sixty-year sentence as an enhanced drug offender. While this may be irrelevant as to whether Haynes received the plea agreement that he wanted, it is relevant to show that Haynes was not prejudiced by the plea agreement he received.

¶ 44. To order the circuit court to -conduct an evidentiary hearing based on these facts is, in my opinion, quite inappropriate. Obviously, the first approximately two years of Haynes’s five year sentence would run concurrent with the remaining two years he had left to serve on his first felonies. The final approximately three years would be served thereafter. The failure of Haynes’s logic regarding the nature of concurrent sentences is quite apparent. Assuming Haynes is correct, if he violates the conditions of his post-release supervision in 2009, does he seriously believe the circuit court could not revoke his suspended sentence and order it served because his two eight year sentences had already expired? His position simply defies logic. For Haynes, under these circumstances, to now claim that his understanding of his sentence was that he was going to get a “free” felony, a felony committed while on ERS, and be released from custody on the very same date as his 1998 felony sentences expired, is quite unreasonable and may even be better described as preposterous.

¶ 45. Considering the foregoing reasoning, I find that it is plainly obvious that Haynes is not entitled to relief. Accordingly, I would hold that the circuit court did not abuse its discretion when it dismissed Haynes’s petition for post-conviction relief. Because the majority finds that Haynes is entitled to an evidentiary hearing, I must respectfully dissent.

MYERS, P.J., AND GRIFFIS, J., JOIN THIS OPINION.

      . In the PCR motion which Haynes filed in the trial court, he alleged in paragraph 11 that "[u]pon receiving the sentencing order and the attached letter [from Judge Mike Smith] [I] contacted [my] attorney regarding [my] deep concern. On December 27, 2004, [I] received a letter from [my] attorney indicating that he and [I] was [sic] still on the same page and it was the courts that deviated.” The attorney’s letter, which we have already quoted from, was referenced and attached.

      . Hannah involved a pro se litigant who delineated four issues in her brief, none of which were captioned "ineffective assistance of counsel.” However, the supreme court noted that Hannah had raised the ineffective assistance of counsel issue in the summary of her argument and held that this Court should have considered the ineffective assistance of counsel argument. Haynes raises his ineffective assistance of counsel claim in much the same way as did Hannah.


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Ashley DELMONT, Appellant v. HARRISON COUNTY SCHOOL DISTRICT, Appellee.
    No. 2005-CA-00259-COA.
    Court of Appeals of Mississippi.
    Dec. 5, 2006.

      Robert 0. Homes, attorney for appellant.
    Richard Eugene Cassady, Trace D. McRaney, attorneys for appellee.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   KING, C.J.,

for the Court.

¶ 1. Ashley Delmont, a D’Iberville High School student, filed suit against the Harrison County School District (HCSD) after sustaining a knee injury as the result of a trip and fall on school property. The Harrison County Circuit Court granted summary judgment in favor of HCSD. Delmont appeals the grant of summary judgment. Finding no error, we affirm.

FACTS

¶ 2. On March 15, 2002, Delmont was playing basketball in the D’Iberville High School gymnasium as part of an aerobics class. The basketball was thrown out-of-bounds and bounced onto a three foot high stage located at one end of the gymnasium. Delmont climbed the steps leading up to the stage to retrieve the ball. A student called out Delmont’s name as she approached the top step, and Delmont turned her head toward the student and proceeded to walk toward the basketball. Del-mont tripped and fell over a large cheer-leading mat that was lying on the stage floor. Delmont underwent knee surgery and physical therapy as a result of the fall.

¶ 3. On December 16, 2002, Delmont filed a complaint against the HCSD. On September 25, 2003, after discovery was conducted, HCSD filed its first motion for summary judgment claiming immunity under Mississippi Code Annotated Section ll-46-9(l)(v)(Rev.2002). The motion was denied without opinion on January 20, 2004. On August 16, 2004, HCSD filed a second motion for summary judgment claiming discretionary function immunity under Mississippi Code Annotated Section ll-46-9(l)(d). The motion was granted without opinion on January 7, 2005.

ANALYSIS

¶ 4. This Court conducts a de novo review of summary judgments and considers the facts in the light most favorable to non-movants. Collins v. Tallahatchie County, 876 So.2d 284, 286(¶5) (Miss. 2004). The non-moving party cannot rely on allegations or denials in his pleadings, but must set forth specific facts to show that a genuine issue of material fact exists in order to avoid summary judgment. Id.

¶ 5. In her complaint Delmont alleged that HCSD was negligent in (1) leaving the cheerleading mat out while it was not in use, (2) failing to provide Delmont with a reasonably safe place to play, and (3) failing to provide adequate personnel to maintain the premises and supervise the children. Mississippi Code Annotated Section ll-46-9(l)(v) states:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(v) Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care[.]

In order to succeed in her personal injury action against HCSD, Delmont would have to prove that the cheerleading mat was a dangerous condition on HCSD’s property which either was created by negligent or wrongful conduct of HCSD or existed with actual or constructive notice to HCSD. Lowery v. Harrison Co. Bd. of Supervisors, 891 So.2d 264, 267(¶ 12) (Miss.Ct. App.2004). In personal injury cases based on premises liability, the property owner cannot be found liable for the plaintiffs injury where no dangerous condition exists. Nolan v. Brantley, 767 So.2d 234, 240(¶ 15) (Miss.Ct.App.2000) (citing King v. Dudley, 286 So.2d 814, 816 (Miss.1973)).

¶ 6. Delmont failed to provide the trial court with any evidence from which a reasonable fact-finder could conclude that the cheerleading mat itself or its placement on the stage floor constituted a dangerous condition. Instead, Delmont’s deposition testimony revealed that she was simply not looking where she was going.

We had been playing basketball for about ten minutes, when the ball went out of bounds and bounced onto the stage. We were going to get the ball. I went up on the stage[,][a]nd one of the players on the other team had called my name, and I looked back. And when I looked back, I tripped over the mat.
I got up on the stairs. I took three steps from the stairs in a backwards direction, and [the mat] was right there.

HCSD was immune from liability under Mississippi Code Annotated Section 11-46-9(l)(v).

¶ 7. Governmental immunity exists if any subpart of Mississippi Code Annotated Section 11^46-9(1) applies. Fair v. Town of Friars Point, 930 So.2d 467, 471(¶ 9) (Miss.Ct.App.2006). Therefore, we find that the trial court correctly granted summary judgment to HCSD, even though the trial court based its decision on the discretionary function immunity from Mississippi Code Annotated Section 11-46-9(l)(d). See Tillman v. Tillman, 791 So.2d 285, 289(1113) (Miss.Ct.App.2001) (“It is a standard practice of the appellate courts of this state, in the name of judicial economy, to affirm the decisions of the lower court when we conclude that the right result has been reached, even if for the wrong reason”).

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

LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.

      . The size of this cheerleading mat was approximately 42'4" long, 6' wide, and 1.5" in height.


author: CHANDLER, J.,

text:
    Lawrence Ronald FISHER, Appellant v. Sharla Jean Ferguson FISHER, Appellee.
    No. 2005-CP-01432-COA.
    Court of Appeals of Mississippi.
    Dec. 5, 2006.

      Lawrence Ronald Fisher, appellant, pro se.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J.,

for the Court.

FACTS

¶ 1. Lawrence Ronald Fisher (“Fisher”) and Sharia Jean Ferguson Fisher (“Sharia”) were married on June 2, 1989, and separated in April of 1992. The couple married while Fisher was incarcerated in the State Penitentiary at Parchman. No children were born from the marriage.

¶ 2. On January 16, 2004, Fisher filed for divorce on the ground of willful, continued and obstinate desertion for over one year. At the time of filing, Fisher had not spoken to or had any contact with Sharia for more than ten years. On March 19, 2004, Fisher filed a motion to transport an inmate, himself, to the Sunflower Chancery Court for the divorce hearing, which the chancellor denied. As an alternative to making a personal appearance in court, Fisher then filed a motion to allow testimony by deposition upon written questions. The Chancellor granted this motion. Fisher then filed a motion for entry of judgment on August 6, 2004.

¶ 3. Written depositions from Fisher and Lt. Aslee Stevenson, Corrections Supervisor for Visitation at Parchman, were read into the record at the hearing on February 15, 2005. Fisher noted that after their marriage, Sharia regularly visited him in prison. The couple enjoyed conjugal visits and according to Fisher, Sharia never missed a visiting day until they separated in April of 1992.

¶ 4. The last time Fisher had any contact with Sharia was in April of 1992. Fisher attempted to call and write to Sharia, but the calls were unanswered and the letters returned. In April of 1998, Sharia was removed from Fisher’s visitation list. Lt. Stevenson confirmed in his deposition that during the period of 1994 through August 2004, Fisher did not receive any visits from Sharia. The visitation logbook entries were introduced into the record as evidence.

¶ 5. Following the deposition testimony, Fisher’s attorney rested. Sharia was not present at trial, nor did she have counsel present. Therefore, no evidence was presented for the defense. The Chancellor denied Fisher a divorce, holding that it was necessary for him to be present in open court in order to obtain the requested prayer for relief. Aggrieved, Fisher appeals, raising the following issues:

I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING FISHER’S ACCESS TO THE COURTS AND ERRED IN DENYING FISHER A DIVORCE

¶ 6. Finding error, we reverse and remand.

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING FISHER’S ACCESS TO THE COURTS AND ERRED IN DENYING FISHER A DIVORCE.

¶ 7. Fisher argues that the trial court erred by denying him access to the court and denying his prayer for a divorce. It is well settled in Mississippi law that we will not disturb a chancellor’s findings in a divorce matter unless manifestly wrong, clearly erroneous, or if the chancellor applied an erroneous legal standard. Jun-doosing v. Jundoosing, 826 So.2d 85, 88(¶ 10) (Miss.2002).

¶ 8. The United States Supreme Court has established that a prisoner has a constitutional right of access to the courts for claims relating to an actual injury suffered. Lewis v. Casey, 518 U.S. 343, 349, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). However, that right is not absolute. Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Whether a prisoner/litigant must be allowed to be physically present in court is within the trial court’s discretion. In re Merrell, 658 So.2d 50, 52 (Miss.1995) (citing Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948)). If it is apparent that the request of the prisoner is merely born of a desire to obtain a “free pass” for the day, or that the burden of securing his visit proves too costly or dangerous, then the court may decline to issue a writ. Id. Therefore, we must balance the “interest of the prisoner against the interests of the other parties and the state, including the authorities having custody of the prisoner.” Id.

¶ 9. Fisher filed a motion to transport an inmate so that he could attend the hearing for his divorce. The court denied this motion. Fisher then filed a motion to submit testimony by written deposition from himself and his corroborating witness, Lt. Stevenson, which the court granted. Through his counsel, the written depositions were read into the record which supported Fisher’s prayer for relief.

¶ 10. We find that the trial court did not eiT in denying Fisher’s motion to physically transport him to the court for his divorce proceeding. When balancing Fisher’s interest in leaving the prison to attend his hearing against those of the state, including judicial costs, transportation fees and safety measures, we cannot say that the trial court abused its discretion.

¶ 11. Problematic in this case, however, is that the court seemingly allowed Fisher access through written depositions, but then stated at trial that Fisher must be physically present in order to obtain relief. The chancellor stated that in seeking a divorce, a party must testify in open court and the testimony must be corroborated by at least one witness. Fisher argues that the written depositions read into the record served as adequate testimony in open court. Fisher claims that the depositions and visitation logbook prove Sharia’s desertion by clear and convincing evidence, which satisfies the proof necessary to obtain relief.

¶ 12. The question before us is whether a chancery judge may refuse to grant a divorce based on desertion unless the complainant makes a personal appearance at the hearing. The conduct of divorce proceedings is governed by Section 93-5-7 of the Mississippi Code Annotated (Rev. 2004), which provides in pertinent part that, “The proceedings to obtain a divorce shall be by complaint in chancery, and shall be conducted as other suits in chancery. ...” Section 93-5-17(1) of the Mississippi Code Annotated (Rev.2004) states in pertinent part, “The proceedings to obtain a divorce shall not be heard or considered nor a judgment of divorce entered except in open court.” Further, Section 93-5-19 permits depositions by witnesses in divorce proceedings by stating, “witnesses may be summoned, and examined in open court, as in the trial of issues of fact in the circuit court, or depositions may be taken and read as in other cases and the parties shall be competent witnesses for or against each other.” Mississippi Code Annotated § 93-5-19 (Rev.2004).

¶ 13. The plain language of these sections does not require a complainant’s personal appearance in open court. Rather, an open court proceeding is the necessary requirement. As Section 93-5-19 states, witness testimony may be given by reading a deposition into the record at trial. Thus, we find no statutory requirement that the party/litigant be physically present in court.

¶ 14. Our supreme court has held that the Mississippi Code does not require a personal appearance from a party seeking an irreconcilable differences divorce. Bullard v. Morris, 547 So.2d 789, 792 (Miss.1989). In Bullard, the parties filed a joint complaint for divorce. The husband was incarcerated and the wife resided in California. The couple had no children from the marriage. The court reviewed the relevant domestic relations statutes and determined that the chancellor had discretion as to the requirement of a physical appearance. The court also noted that transporting the husband, an inmate, to the court to make an appearance would be costly. Thus, the court directed the chancellor to consider the divorce action in the absence of both complainants.

¶ 15. While we acknowledge that an irreconcilable differences complaint is wholly distinguishable from that of a fault-based ground for divorce, we are nonetheless persuaded by the Bullard opinion. In the present case, the trial court denied Fisher’s motion to appear physically at the court, but granted his motion to present relevant testimony via written deposition. We find that per statute, the written depositions adequately served as proper testimony required for a divorce judgment. By rejecting Fisher’s motion to physically appear in court and then denying his petition for divorce because he was not present, the chancellor abused her discretion. Once the chancellor granted the motion to admit written depositions as testimony, this should have served as a reliable form of access to the court that Fisher requested.

¶ 16. We note, however, as the court did in Bullard, that this ruling should not be construed as “favoring so called ‘mail order’ justice, nor to inhibit the use of the postal system for matters which efficiently may be handled in this manner.” Bullard, 547 So.2d at 792. Therefore, we reverse the chancellor’s decision denying Fisher a divorce, and remand to the trial court for further consideration by the chancellor to determine whether Fisher is entitled to a divorce in light of this ruling.

¶ 17. THE JUDGMENT OF THE CHANCERY COURT OF SUNFLOWER COUNTY IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: HARWOOD, Justice.

text:
    TOLAR CONSTRUCTION, LLC v. KEAN ELECTRIC COMPANY, INC. Kean Electric Company, Inc. v. Tolar Construction, LLC.
    1041448 and 1041510.
    Supreme Court of Alabama.
    May 19, 2006.

      Gerald R. Paulk of Paulk Law Firm, P.C., Scottsboro, for appellant/cross-appel-lee Tolar Construction, LLC.
    James W. McGlaughn and Michael D. McGlaughn of McGlaughn & McGlaughn, L.L.C., Gadsden, for appellee/cross-appel-lant Kean Electric Company, Inc.
   HARWOOD, Justice.

Tolar Construction, LLC (“Tolar”), appeals from an order of the DeKalb Circuit Court denying its motion for a new trial and granting the motion of Kean Electric Company, Inc. (“Kean”), for an award of attorney fees, interest, and other costs. Kean cross-appeals from the aspect of that order setting the date on which interest began to accrue. We affirm the trial court’s judgment.

Facts and Procedural History

Tolar is a general contracting company primarily specializing in the construction of large buildings such as school buildings. In March 2000, Tolar submitted a bid to, and secured a general contract from, the Fort Payne Board of Education for an expansion of Wills Valley Elementary School, located in Fort Payne.

In the course of determining the amount of bid to submit, Tolar sought bids from numerous subcontractors for performance of various components of the expansion project. Kean was the winning subcontractor for electrical services, and it and Tolar entered into an electrical-subcontract agreement (“the subcontract”), which provided that Tolar would pay Kean a specified sum for its services upon completion and acceptance of the electrical work. The date specified in the subcontract for Kean’s completion of the electrical work was January 18, 2001.

In June 2000, Tolar began work on the expansion project; Kean began work as scheduled in August. The project proceeded smoothly until November, when the Board of Education informed Tolar that the roof for which materials had been ordered and on which work had already begun was not the roof the Board of Education intended for the school. More than a month elapsed before the roof situation was resolved, during which much of the scheduled electrical work was delayed. During this period, Kean found it necessary to withhold its normal complement of workers from the site; it sent just a few individuals each day to complete what little work could be accomplished pending resolution of the roof problem.

Tolar had to remove the roof it had already constructed and begin construction of a second roof. Weather conditions delayed this work until January 3, 2001, when Tolar was finally able to begin removing the roof underlayment. Within a few weeks, the roof was essentially completely replaced, and Kean began devoting more manpower to the electrical work. The roof delay, however, rendered impossible Kean’s completion of its work by January 18, 2001.

Although Tolar understandably did not find fault with Kean for not having completed its work by January 18, the project manager for Tolar eventually began to voice some frustration with Kean’s allegedly slow completion time. Correspondence increased between Lyle Kean, president of Kean, and representatives of Tolar, as each company began to complain about the deficient nature of the other’s work. On April 27, 2001, Tolar’s project superintendent hand-delivered a letter to Lyle Kean informing him that Kean needed to complete its work by the afternoon of May 3. On May 14, the project superintendent hand-delivered to Lyle Kean another letter, dated May 12; although that letter is not contained in the record, it has been represented to have essentially ordered Kean “to get off [the] job and do not come back.” After completing some minor remedial measures, Kean complied with this order. Other than $3,000 paid to Kean by Tolar at an indeterminate point during the project, Tolar never paid Kean for its work.

On January 7, 2003, Kean sued Tolar in the DeKalb Circuit Court, alleging breach of contract and fraud. Tolar filed an answer generally denying the allegations and filed a counterclaim alleging that Kean had breached the subcontract. Tolar’s counterclaim sought, among other relief, attorney fees pursuant to a provision in the subcontract. Kean answered Tolar’s counterclaim by general denial and amended its own complaint to add a count seeking “interest costs, attorneys fees and reasonable expenses” under Ala.Code 1975, § 8-29-1 et seq., officially designated the Deborah K. Miller Act by the Alabama Legislature (“the Miller Act”). Tolar answered this amendment by a general denial. Because the meaning and interaction of certain provisions of the Miller Act are at the heart of most of the issues contested on appeal, we set those provisions out at this point:

Section 8-29-3(d), Ala.Code 1975, provides:
“If the owner, contractor, or subcontractor does not make payment in compliance with this chapter [‘Chapter 29. Timely Payments to Contractors and Subcontractors’], the owner, contractor, or subcontractor shall be obligated to pay his or her contractor, subcontractor, or sub-subcontractor interest at the rate of one percent per month (12% per an-num) on the unpaid balance due.”
Section 8-29-4 provides, in part:
“(a) Nothing in this.chapter shall prevent the owner, contractor, or subcontractor from withholding application and certification for payment for any of the following reasons if there is a bona fide dispute over one or more of the following:
“(1) Unsatisfactory job progress.
“(2) Defective construction not remedied.
“(3) Disputed work.
“(4) Third party claims filed or reasonable evidence that a claim will be filed.
“(5) Failure of the contractor, subcontractor, or sub-subcontractor to make timely payments for labor, equipment, and materials.
“(6) Property damage to owner, contractor, or subcontractor.
“(7) Reasonable evidence that the contract, subcontract, or sub-subcontract cannot be completed for the unpaid balance of the contract or contract sum.
“(b) In the event that there is a bona fide dispute over all or any portion of the amount due on a progress payment from the owner, contractor, or subcontractor then the owner, contractor, or subcontractor may withhold payment in an amount not to exceed 2 times the disputed amount.”
Section 8-29-6 provides:
“A contractor, subcontractor, or sub-subcontractor may file a civil action solely against the party contractually obligated for the payment of the amount claimed to recover the amount due plus the interest accrued in accordance with this chapter. If the court finds in the civil action that the owner, contractor, or subcontractor has not made payment in compliance with this chapter, the court shall award the interest specified in this chapter in addition to the amount due. In any such civil action, the party in whose favor a judgement is rendered shall be entitled to recover payment of reasonable attorneys’ fees, court costs and reasonable expenses from the other party.”

The case went to trial before a jury on March 7, 2005. At the close of Kean’s case-in-chief, the trial court granted To-lar’s motion for a judgment as a matter of law as to Kean’s fraud claim.

Midday on March 9, the court and counsel agreed that Kean’s claims pursuant to § 8-29-6, for attorney fees, interest, and expenses, and Tolar’s claim for attorney fees, sought pursuant to a provision therefor in the subcontract, would be determined by the court, and the jury would be so advised. On March 10, immediately after the lunch recess and immediately preceding the time appointed for closing arguments, counsel renewed discussions with the court concerning how attorney fees were to be referenced in the various verdict forms and how the issue might permissibly be argued to the jury. The court explained its intention to provide verdict forms and accordingly instruct the jury that in the event of an award of damages to either Kean or Tolar, the court would make a determination of the amount, if any, of attorney fees, “litigation costs,” and interest the prevailing party would be entitled to recover from the other party, depending on the verdict of the jury and subsequent proceedings in the case. Counsel for both parties expressed their agreement with that approach. Thereafter, the court charged the jury, in pertinent part, as follows:

“With regard to the dispute between Kean and Tolar, each party claims attorney’s fees and litigation costs from the other. In addition, each party claims accrued interest on the amount of any verdict which is returned by the jury. To the extent that there are claims for attorney’s fees, litigation costs, and interest, these matters are not for your determination. The Court will make a determination of the amount, if any, that a party is entitled to recover from the other for such matters, depending on the verdict of the jury and subsequent proceedings in this case.”

The trial court read and explained the alternative verdict forms finding in favor of Kean or Tolar and awarding the prevailing party damages and noted that each provided a blank, preceded by a dollar sign, for the entry of the compensatory damages awarded, followed by the statement “plus attorney fees, litigation costs, and interest to be determined by the Court.” At the conclusion of the jury charge, counsel for both parties stated that they had no exceptions or objections to the charge.

The next morning, March 11, 2005, the jury returned a verdict in favor of Kean on both its breach-of-contract claim and To-lar’s breach-of-contract counterclaim, and awarded Kean $88,652.27 in compensatory damages, “plus attorney fees, litigation costs, and interest to be determined by the Court.” The trial court entered a judgment on this verdict on March 23 and set a hearing on May 2 for “the determination of attorney’s fees, litigation costs and interest, to be assessed against [Tolar].”

Tolar filed a motion for a new trial, which the trial court also heard on May 2. After the hearing, the trial court, on May 12, 2005, entered its final judgment denying Tolar’s motion for a new trial and further providing:

“Title 8-29-1 et seq. Code of Alabama (1975) hereinafter referred to as the Miller Act, provides that performance by a subcontractor in accordance with the provisions of a construction contract entitles the subcontractor to timely payment from the party with whom he contracted. The Miller Act further provides that interest accrues at the rate of 12% per annum for unpaid work and labor done and materials furnished in accordance with the contract. A contractor may, however, withhold payment from a subcontractor when there is a bona fide dispute as to job progress, defective construction, and other causes stated in said Act.
“When a subcontractor brings a civil action to recover the amounts claimed to be due from the general contractor, if the Court finds that the general contractor has not made payment in compliance with the Miller Act, the Court must award interest, reasonable attorneys’ fees, court costs, and reasonable litigation expenses to the prevailing party.
“Interest only accrues, however, when a party fails to make payment in compliance with the Miller Act. Since the Miller Act authorizes payment to be withheld when there is a bona fide dispute concerning job progress, defects in construction, and other statutorily specified reasons, interest does not accrue during such periods of dispute.
“This court is satisfied that the amounts withheld by the Defendant, To-lar Construction Company, LLC [sic], were withheld because of a bona fide dispute within the meaning of the Miller Act. Accordingly, interest at the rate of 12% per annum did not begin to accrue until the jury reached its verdict on March 11, 2005.
“[Kean’s] request for the taxing of attorney’s fees, court costs, and litigation costs has also come to be heard and considered. '
“On the basis of the findings of this Court, whether set out herein, or not, it is
“ORDERED, ADJUDGED, AND DECREED as follows:
“1. The Plaintiff, Kean Electric Company, Inc., shall have and recover of the Defendant, Tolar Construction, LLC, the sum of $88,652.27 plus attorney fees in the amount of $35,000.00 together with litigation costs and court costs in the amount of $1,518.35 for an aggregate of $125,170.62, for which said aggregate sum judgment is hereby entered in favor of [Kean] and against the Defendant, Tolar Construction, LLC.
“2. Interest shall accrue on $88,652.27 at the rate of 12% per annum in the amount of $29.85t] per day beginning March 11, 2005. Interest shall accrue on $36,518.35 at the rate of 6% per annum in the amount of $6.00 per day beginning with the date of this Final Judgment.”

Tolar appeals the trial court’s denial of its motion for a new trial — contending that the damages awarded Kean were excessive — and that court’s award to Kean of attorney fees and litigation costs (case no. 1041448.) Kean cross-appeals from the trial court’s decision to calculate the prejudgment interest only from the date on which the verdict was rendered (case no. 1041510).

Standard of Review
“A strong presumption of correctness attaches to a jury verdict in Alabama, if the verdict passes the ‘sufficiency test’ presented by motions for [a judgment as a matter of law and a renewed motion for a judgment as a matter of law]. Christiansen v. Hall, 567 So.2d 1338, 1341 (Ala.1990); Alpine Bay Resorts, Inc. v. Wyatt, 539 So.2d 160 (Ala.1988). This presumption of correctness is further strengthened by a trial court’s denial of a motion for new trial. Christiansen, 567 So.2d at 1341. Denying, and to a more limited extent, granting, a motion for new trial is within the sound discretion of the trial court. See, Jawad v. Granade, 497 So.2d 471, 477 (Ala.1986). This Court will not reverse a judgment based on a jury verdict on the ground that the evidence was insufficient unless the evidence, when viewed in a light most favorable to the nonmov-ant, shows that the verdict was ‘plainly and palpably wrong and unjust.’ Christiansen, 567 So.2d at 1341.”

Carter v. Henderson, 598 So.2d 1350, 1354 (Ala.1992). Further, “[t]he authority to disturb a jury verdict on the ground of excessive damages is one which should be exercised with great caution.” Hammond v. City of Gadsden, 493 So.2d 1374, 1378 (Ala.1986). Therefore “this Court will not reverse the denial of a motion for a new trial unless the evidence, seen in the light most favorable to the nonmovant, shows that the jury verdict was plainly and palpably wrong.” Zanaty Realty, Inc. v. Williams, 935 So.2d 1163, 1166-67 (Ala.2005).

Where the trial court has been called upon to determine a question of law, this Court’s review is de novo. Continental Nat’l Indem. Co. v. Fields, 926 So.2d 1033, 1035 (Ala.2005).

Analysis

I. Were the Damages Awarded Excessive?

On appeal, Tolar argues that the damages awarded by the jury were excessive. In Ex parte Woodward Construction & Design, Inc., 627 So.2d 393 (Ala.1993), this Court recited the well-settled rule for calculating damages when one party has prevented another’s performance:

“ ‘If the [general contractor] breached an essential and dependent feature of the contract, the [subcontractor] may abandon it and ... sue on the contract and recover an amount equal to a proportion of the contract price which he has earned....’”

627 So.2d at 394 (quoting Braswell v. Malone, 262 Ala. 323, 328, 78 So.2d 631, 636 (1955)) (emphasis omitted). Further, as we explained in Woodward Construction:

“ ‘ “When a plaintiff sues on a contract to recover the amount he would have received for the full performance prevented by the defendant’s breach, he seeks in effect to recover as damages the profit from performance of the contract which profit defendant’s breach prevented him from earning. In such a case, plaintiff has the burden of alleging and proving not only (a) what he would have received from the performance so prevented, but also (b) what such performance would have cost him (or the value to him of relief therefrom). Unless he proves both of those facts, he cannot recover as damages the profits he would have earned from full performance of the contract.” ’ ”

627 So.2d at 394 (quoting Whiting v. Dodd, 39 Ala.App. 80, 83, 94 So.2d 411, 414 (1957), quoting in turn Allen, Heaton & McDonald, Inc. v. Castle Farm Amusement Co., 151 Ohio St. 522, 526, 86 N.E.2d 782, 784 (1949)).

Tolar’s argument that the damages award was excessive, however, is limited in scope: “The jury verdict in favor of Kean against Tolar was excessive because the jury failed to give Tolar proper credit for payments made by Tolar which were necessary to complete the terms of the Subcontract Agreement.” (Tolar’s brief, at 13; emphasis added.) Tolar then cites the above-quoted rule of law from Woodward Construction, as well as what it says was “uncontroverted” evidence indicating that Tolar paid over $43,000 in “completion payments” to third parties, as support for its argument. (Id. at 15-16.)

The rule set forth in Woodward Construction, however, does not necessarily support Tolar’s argument. That rule requires the proffer of two types of evidence: (a) what the nonbreaching party (Kean) would have received had the contract been fully discharged, and (b) what it would have cost the nonbreaching party (Kean) to complete the contract had it been fully discharged. The first type of evidence was presented by Kean through the introduction of both the written subcontract as well as testimony corroborating the subsequent increase in the contract price. The second type of evidence was presented by Kean in the form of proof of the amounts that Kean would have owed its sub-subcontractors for completing their work. Tolar does not challenge any of this evidence on appeal.

Tolar’s argument is that Kean did not fully perform its subcontract and that To-lar consequently was forced to find third parties to complete certain aspects of it. Although there is a dispute between the parties as to whether Tolar provided credible evidence indicating the amount it paid, resolution of that dispute is not required to resolve Tolar’s argument. Even if Tolar had presented concrete evidence, agreed by both parties to be accurate, indicating the amount of money Tolar had spent to complete Kean’s electrical subcontract, such evidence does not indicate the amount of money Kean would have had to spend to complete the subcontract. For instance, any third party completing “last minute” work at the behest of Tolar could, and probably would, have charged more than an original subcontractor or sub-subcontractor would have, because of “start up” transitioning costs, and may have charged a premium in recognition of the immediacy of Tolar’s needs. Had Tolar not breached the contract, however, Kean’s sub-subcontractors would have been obliged to perform their work at the agreed-upon price, without any “discontinuity” costs. In short, the rule of Woodward Construction does not envision that the completion-cost offset would be computed from the perspective of the breaching party, but rather that it would be computed from the perspective of the nonbreaching party.

Moreover, a review of the jury instructions indicates that the jury was never charged with respect to completion payments. Rather, the court simply stated:

“Damages for breach of contract is that sum which would place the injured party in the same condition it would have occupied if the contract had not been breached.... The law defines substantial performance as performance of all the important parts of a contract, but the doctrine of substantial performance does not require a full or exact performance of every slight or unimportant detail. If a party to a contract substantially performs a contract as I have defined substantial performance to you, the party may recover the contract price less the reasonable cost of remedying any trivial defects or omissions left to be performed.”

(Emphasis added.)

The quoted language does not speak of deducting the cost of “completion payments,” but rather the likely smaller sum necessary to remedy “trivial” defects or omissions caused by the failure to fully perform. Additionally, the instruction does not clarify whether the jury was to determine how much it would cost to remedy those “trivial defects or omissions” from the perspective of the breaching party or the substantially performing party. Because Tolar failed to object to the trial court’s jury instructions, those instructions are the law of the case, and Tolar cannot now complain about the jury’s obedience to them.

Because Tolar has not otherwise challenged Kean’s presentation of evidence indicating the amount of damages to which it was entitled, but instead has presented evidence indicating only the amount of money Tolar spent in consequence of its own breach, we hold that the trial court did not err in denying Tolar’s motion for a new trial, and we thus affirm the trial court’s judgment as to this ground.

II. Did the Trial Cowl Comply with the Miller Act ?

Tolar and Kean have appealed from separate features of the trial court’s May 12, 2005, order. Tolar argues that the court erroneously awarded Kean attorney fees and litigation costs pursuant to the Miller Act. Kean cross-appeals from the trial court’s use of the date the verdict was rendered as the triggering date for calculating the 12% interest.

The Miller Act was enacted in 1995 and serves as Alabama’s equivalent of the “prompt-payment acts” enacted in many other states. See John W. Hays, Prompt Payment Acts: Recent Developments and Trends, 22 Constr. Law. 29 (2002). The Miller Act affords contractors, subcontractors, and sub-subcontractors special remedies against owners, contractors, and subcontractors, respectively, when the latter improperly withhold payment.

Tolar’s “Statement of the Issues” (To-lar’s brief, at 4), states the second issue as being “[wjhether the trial court erred in awarding Kean attorney fees, litigation costs and court costs pursuant to AIa.Code [1975,] § 8-29-1, et seq. known as the Miller Act.” In the argument section of its brief, it restates that issue as follows:

“The trial judge erred in awarding Kean attorney fees, litigation costs and court costs pursuant to Ala.Code [1975,] § 8-29-1, et seq., known as the Miller Act, after the trial judge found that the monies withheld by Tolar were because of a bona fide dispute as to what amount Kean was owed.”

(Id. at 17.)

Tolar does not separately argue that the trial court erred in allowing Kean interest at 12% per annum, beginning with the date of the jury verdict — March 11, 2005 — but does challenge the propriety of the award of such interest in connection with its contention that because no interest should have been awarded under Ala.Code 1975, § 8-29-3(d), no attorney fees should have been awarded. As Tolar frames the argument:

“[A]ttorneys’ fees and other litigation costs should only be awarded to the prevailing party if the trial court determines that the contractor is subject to a pre-judgment interest penalty. The trial court in this case determined that Tolar had a bona fide reason for withholding payment for Kean; therefore, pre-judgment penalty interest was not proper.... Therefore, the trial judge erred when it awarded attorneys’ fees, litigation costs, and court costs to Kean....”

(Tolar’s brief, at 24-25.)

Tolar links the propriety of an award of prejudgment interest and the propriety of an award of attorney fees by “collapsing” the text of Ala.Code 1975, § 8-29-6. To-lar states in its principal brief that

“[t]he statute also provides that ‘if the court finds ... that the ... contractor ... has not made payment in compliance with this chapter, the party in whose favor a judgment is rendered shall be entitled to recover payment of reasonable attorneys’ fees, court costs and reasonable expenses from the other party.’ Ala.Code § 8-29-6 (1995).”

(Tolar’s brief, at 18.) As seen from a reading of the complete text of the portion of § 8-29-6 quoted only partially by Tolar, what Tolar merges into one sentence con-statutes two separate sentences, the first of which mandates awarding 12% interest if the court finds “that the ... contractor ... has not made payment in compliance with [the Act],” and the second of which provides that “the party in whose favor a judgement is rendered shall be entitled to recover payment of reasonable attorneys’ fees, court costs and reasonable expenses from the other party.” Thus, under a plain reading of § 8-29-6, only Tolar, if found not to have made payment in compliance with the act, could have been penalized by an award of interest made to Kean, whereas either party, so long as it was “the party in whose favor a judgement [was] rendered,” would be entitled to recover attorneys’ fees, court costs, and reasonable expenses “from the other party.” Tolar implicitly recognized this distinction in its discussions with the judge during trial, agreeing with the judge’s explanation of his proposed instructions to the jury, as well as his proposed formulation of a verdict form, whereby the jury, if it found in favor of Tolar, would authorize payment to Tolar of “attorney fees, litigation costs, and interest to be determined by the Court.” Tolar’s entitlement to “litigation costs” in the event of a verdict in its favor could only be referable to the provision in § 8-29-6 for recovery of “reasonable expenses,” in addition to court costs, by “the party in whose favor a judgment is rendered.”

Tolar argues, however, that decisions by courts in four other states that have adopted prompt-payment acts provide support for Tolar’s contention that the Miller Act authorizes an award of attorney fees only if Tolar “has not made payment in compliance with [the Act],” § 8-29-6, and its withholding of payment was not pursuant to “a bona fide dispute.” Ala.Code 1975, § 8-29-4. Our reading of the cases Tolar cites from Missouri, Tennessee, Florida, and Ohio does not persuade us that they provide support for Tolar’s position. We address those cases in the order in which Tolar presents them in its brief to this Court, noting the pertinent facts and holdings.

In Midwest Asbestos Abatement Corp. v. Brooks, 90 S.W.3d 480 (Mo.Ct.App.2002), the appellate court did say concerning the Missouri Public Prompt Pay Act, “[t]he trial court may award attorney’s fees only if the party prevails on the penalty interest issue.” 90 S.W.3d at 484. The court explained, however, that this holding was based on subsection 6 of that act, which expressly stated that if the trial court determined that a payment “was not withheld in good faith for reasonable cause,” in connection with one of the causes specified elsewhere in the act, “the court may impose interest at the rate of one and one-half percent per month calculated from the date of the invoice and may, in its discretion, award reasonable attorney’s fees to the prevailing party.” 90 S.W.3d at 484. Thus, unlike the separate and distinct treatment accorded enhanced interest and attorney fees in the Miller Act, the Missouri Prompt Pay Act treats them together in one sentence, expressly stating that they may be awarded only if payment had not been withheld “in good faith for reasonable cause.”

Similarly, in Sun Splash Painting, Inc. v. Homestead Village, Inc., No. M2002-0853-COA-R3-CV, Oct. 15, 2003 (Tenn.Ct. App.2003) (not reported in S.W.3d), an unpublished opinion, the pertinent provision of “Tennessee’s Prompt Pay Act of 1991” specified that “ ‘[reasonable attorney’s fees may be awarded against the non-prevailing party; provided, that such non-prevailing party has acted in bad faith.’ ” The plaintiff subcontractor in that case acknowledged that bad faith was a precondition to an award of attorney fees, but simply argued that bad faith had been established.

In Fence Masters, Inc. v. Zurqui Construction Service, Inc., 836 So.2d 1088 (Fla.Dist.Ct.App.2003), the contractor on a municipal public project had received full payment from the municipality, but had withheld payment of a balance of approximately $166,000 claimed by one of its subcontractors despite the fact that, after accounting for all possible offsets, there was no dispute that approximately $96,000 was owed to that subcontractor. The subcontractor sued for payment of the entire contract balance and included a count alleging violation of Florida’s “public projects” prompt-payment act, which, among other things, would entitle the subcontractor to expedited remedies. The tidal court denied the subcontractor’s motion for the entry of a final judgment pursuant to the act with respect to the undisputed amount owing. The Court of Appeals reversed the judgment and remanded the case with instructions to the trial court to enter final judgment for the subcontractor under the act “in the principal amount” of the undisputed balance. The opinion of the Court of Appeals does not in any way address the subjects of enhanced interest or attorney fees and therefore seemingly has no relevance to the issues at hand.

The last case Tolar cites is Masiongale Electrical-Mechanical, Inc. v. Construction One, Inc., No. 02AP-138, Sept. 10, 2002 (Ohio Ct.App.2002) (not reported in N.E.2d), also an unpublished opinion. With respect to the contested award of attorney fees, the Ohio Court of Appeals noted that the Ohio “Prompt Payment Act” provided in pertinent part that “ ‘the court shall award the prevailing party reasonable attorney fees and court costs’ ” but that in making a determination to award attorney fees “ ‘the court shall consider all relevant factors, including, but not limited to ... [t]he presence or absence of good faith allegations or defenses asserted by the parties,’ ” and that, “ ‘[t]he court shall not award attorney fees ... if the court determines ... that the payment of attorney fees to the prevailing party would be inequitable.’ ” That same section of the Prompt Payment Act provided that a subcontractor might sue a contractor under the act if the contractor “has not made payment in compliance with” the act. The Ohio Court of Appeals affirmed the trial court’s judgment adopting a magistrate’s findings that the reasons put forth by the defendant contractor for having withheld the disputed sums did not “constitute[ ] good faith allegations or defenses” and that the contractor had “wrongfully withheld” the disputed amount. Thus, the court simply upheld application of statutory features absent from the Miller Act.

The interpretation of § 8-29-6 is an issue of first impression for this Court.

“In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said:
“ ‘Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’
“Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)); see also Tuscaloosa County Comm’n v. Deputy Sheriffs’ Ass’n, 589 So.2d 687, 689 (Ala.1991); Coastal States Gas Transmission Co. v. Alabama Pub. Serv. Comm’n, 524 So.2d 357, 360 (Ala.1988); Alabama Farm Bureau Mut. Cas. Ins. Co. v. City of Hartselle, 460 So.2d 1219, 1223 (Ala.1984); Dumas Bros. Mfg. Co. v. Southern Guar. Ins. Co., 431 So.2d 534, 536 (Ala.1983); Town of Loxley v. Rosinton Water, Sewer, & Fire Protection Auth., Inc., 376 So.2d 705, 708 (Ala.1979). It is true that when looking at a statute we might sometimes think that the ramifications of the words are inefficient or unusual. However, it is our job to say what the law is, not to say what it should be. Therefore, only if there is no rational way to interpret the words as stated will we look beyond those words to determine legislative intent. To apply a different policy would turn this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers. See Ex parte T.B., 698 So.2d 127, 130 (Ala.1997).”

DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275-76 (Ala.1998).

Looking at the plain meaning of § 8-29-6, we conclude that the statute provides for awarding attorney fees irrespective of whether a party is entitled to interest under the Miller Act. The statute allows a subcontractor to file a civil action to recover the amount due, along with the interest, if any, to which it is entitled under the Miller Act. Certainly, if a subcontractor was not entitled to interest under § 8-29-3(d), it could nonetheless recover “the amount due” in a civil action filed under § 8-29-6, which allows for the award of attorney fees, court costs, and reasonable expenses to the prevailing party “in any such civil action.” The reference to “any such” civil action cannot logically refer only to a situation in which the plaintiff contractor, subcontractor, or sub-subcontractor is awarded interest. “[A]ny such” modifies “civil action,” the definition and nature of which does not change based upon the relief eventually awarded; its contours are shaped by what is pleaded, not what is attained. Therefore, “any such civil action” simply refers to any civil action brought under the Miller Act to recover money held by an owner, contractor, or subcontractor.

That a provision for attorney fees in prompt-payment acts structured like the Miller Act can “cut both ways” is noted in Prompt Payment Acts: Recent Developments and Trends, supra, at 34, by the observation that “[mjandating or allowing an award of attorneys’ fees to the prevailing party should discourage frivolous excuses from owners and contractors for failing to pay promptly and should discourage contractors and subcontractors from demanding payments that are not due.” Unlike the prompt-payment acts in the cases cited by Tolar, the allowance for attorney fees found in the Miller Act is not tethered to provisions conditioning the award upon a showing of some sort of bad faith. Had the trial court rendered a judgment in Tolar’s favor, Tolar would have been entitled to recover attorney fees under the Miller Act despite the fact that it was not entitled to any enhanced interest.

We hold that the statute allows attorney fees to be awarded to the party in whose favor a judgment is rendered, regardless of whether interest is warranted. Thus, we conclude that Kean, as that party, was entitled to attorney fees as determined by the court, and we affirm the trial court’s order awarding attorney fees.

In its cross-appeal, Kean argues that although the trial court correctly determined Kean was entitled to the interest provided for in the Miller Act, the court erred in deferring the accrual of enhanced prejudgment interest to the date the jury rendered its verdict, rather than from the date Kean was terminated from the project by virtue of the delivery of the letter dated May 12, 2001. Although Ala.Code 1975, § 8 — 29—3(d), does not specify the date from which interest at the rate of 12% per annum is to accrue, the legislature obviously intended prejudgment interest to accumulate on any payment unjustifiably withheld in noncompliance with the Miller Act, as of the time the payment was due under the act. Section 8 — 29—3(b) provides, in pertinent part, that “the contractor shall timely pay to the subcontractor in accordance with the payment terms agreed to by the contractor and the subcontractor, but if payment terms are not agreed to, then within seven days of receipt of payment from owner.... ” The subcontract between Tolar and Kean contains several provisions specifying the preconditions for, and the timing of, both interim payments and the final payment. As noted, however, § 8-29-4 authorizes a contractor to withhold payment from a subcontractor “if there is a bona fide dispute over one or more” of seven specified circumstances.

In the trial of the dispute between Tolar and Kean, the parties agreed, and the trial court instructed the jury, that the court would decide any claim for interest, determining the amount, if any, that either party was entitled to recover as interest from the other depending on the jury’s verdict and subsequent proceedings in the case. This instruction, to which neither party objected or took exception, became “the law of the case,” authorizing the trial judge to act in conformity with it. Alabama Dep’t of Transp. v. Land Energy Ltd., 886 So.2d 787, 795 (Ala.2004). Because of that agreed-to procedure, the court did not instruct the jury concerning the “bona fide dispute” principle of § 8-29-4 or the “payment in compliance” concept of § 8 — 29—3(d); rather, it reserved to itself the determination of those statutorily indispensable preconditions to an award of prejudgment interest. The jury verdict in favor of Kean on its breach-of-contract claim did not resolve the more particular issue whether there had been a bona fide dispute between the parties of a type described by § 8-29-4. The trial court expressly addressed in its final judgment the considerations relevant under the Miller Act and determined that Tolar had withheld the payment in question “because of a bona fide dispute within the meaning of the Miller Act.” Therefore, the court permissibly concluded that “interest at the rate of 12% per annum did not begin to accrue until the jury reached its verdict on March 11, 2005.”

Kean next argues that, even if such a determination by the court might have been generally allowable under the subcontract and the court’s charge to the jury, a statement by Tolar’s counsel at the May 2 hearing altered the situation. Specifically, Kean refers to the fact that the court asked Tolar’s counsel at that hearing, after explaining that it was not asking him to concede or to admit that Kean was due any interest but to assume for the moment that the court was going to award interest at the rate of 12%, “[w]hat’s the date that you claim that it was due to be paid or that the interest rate starts.” To-lar’s counsel answered that, “as far as strictly focusing on the day[,] would probably be January 1, 2002.” Kean now argues to this Court that “[i]t was not within the discretion of the trial court to take a position that was not requested by Tolar and has not been requested in this appeal.” The flaw in this analysis is that Tolar has no burden of persuasion on appeal concerning the propriety of the trial court’s ultimate determination of the appropriate starting date for the imposition of enhanced prejudgment interest. Only Kean, as the cross-appellant as to that issue, has a burden of persuasion in that regard, to establish, by argument properly supported by citation to relevant authority, that the trial court erred in its application of the provisions of the Miller Act. See Rule 28(a)(10), Ala. R.App. P. Kean cites no authority for the proposition that the statement by Tolar’s counsel would preclude' the trial court from determining, in the final analysis, a different date for the ending of the period of the “bona fide dispute” between the parties. Therefore, we find no error in the trial court’s resolution to that issue, given the particular procedural posture of the case, and we affirm its judgment insofar as it calculates interest from the date of the jury verdict.

Kean has also filed with this Court a motion seeking additional attorney fees for its work in defending the trial court’s judgment and in preparing its cross-appeal. “ ‘In Alabama and most other jurisdictions, the general rule is that attorney’s fees and expenses of litigation are not recoverable as damages, in [the] absence of a contractual or statutory duty, other than [by] a few recognized ... equity principles.’ ” Ex parte Burnham, Klinefelter, Halsey, Jones & Cater, P.C., 674 So.2d 1287, 1290 (Ala.1995) (quoting Highlands Underwriters Ins. Co. v. Elegante Inns, Inc., 361 So.2d 1060, 1065-66 (Ala.1978)). In support of their request for additional attorney fees, counsel for Kean cite the previously discussed feature of the Miller Act providing that “the party in whose favor a judgement is rendered shall be entitled to recover payment of reasonable attorneys’ fees, court costs and reasonable expenses from the other party.” Ala.Code 1975, § 8-29-6.

Under our rule of statutory interpretation, we are obliged to give effect to the statute exactly as it is written. De-Kalb County LP Gas, supra. The words “in whose favor a judgement is rendered” create a limited category. A key feature of the limitation is the word “rendered.” Trial courts “render” judgments. Rule 58(a), Ala. R. Civ. P. Those judgments may thereafter be affirmed or reversed, in whole or in part, by an appellate court in the event of an appeal. Although this Court may sometimes also “render” a judgment, the occasions when it does so are infrequent.

Because the statute employs the term “rendered,” we conclude that it applies to two situations, one of which was likely unanticipated. The most obvious situation in which the statute applies is when a trial court “renders” a judgment in a case brought under the Miller Act. The other situation, which we readily concede was likely not contemplated when the legislature drafted this statute, arises in the occasional situation where this Court finds it appropriate not only to reverse the judgment of a lower court but also to “render” a judgment in a party’s favor. It undeniably appears that, in that regard, “the ramifications of the words are inefficient or unusual,” DeKalb County LP Gas, supra, but such considerations are of no import to this Court in the event the text is clear.

In the instant action, we have affirmed the trial court’s judgment in all respects. We have not “rendered” any judgment. Thus, at the appellate stage, Kean has not enjoyed the rendition of a judgment in its favor, but only the affirmance of a judgment previously rendered in its favor. Because Kean’s factual situation falls outside of that described by the Miller Act, we deny its motion for additional attorney fees for its counsel’s appellate work.

Conclusion

We affirm the trial court’s judgment.

1041448 — AFFIRMED.

1041510 — AFFIRMED.

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

      . Although not directly relevant to our disposition of these appeals, the agreed-to sum was $226,975 but, according to testimony proffered by Kean, was later increased to $230,331.82.

      . The parties do not raise or discuss the issue whether the March 23 "judgment” was a judgment from which an appeal would have lain (Rule 54(a), Ala. R. Civ. P.) so as properly to be the subject of a motion for a new trial (see Rule 59(a) and (b), Ala. R. Civ. P.); we, therefore, do not address that issue.

      . We note that our calculation of interest, using the amounts in the trial court's order, results in an interest amount of $29.15 per day.

      . Other than taking issue with the date for which prejudgment interest is calculated, Kean does not argue that prejudgment interest or postjudgment interest should have been differently calculated. See Ala.Code 1975, §§ 8-8-8 and-10.