author: KING, C. J.,

text:
    Harold BARR, Appellant v. HANCOCK COUNTY, Mississippi, Appellee.
    No. 2005-CA-01573-COA.
    Court of Appeals of Mississippi.
    Feb. 27, 2007.

      William Compton Helm, attorney for appellant.
    Trace D. McRaney, attorney for appel-lee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   KING, C. J.,

for the Court.

¶ 1. Harold Barr appeals the trial court’s decision granting summary judgment to Hancock County on the grounds that Hancock County was entitled to sovereign immunity from Barr’s complaint for personal injury. Finding no error, this Court affirms.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 23, 2002, Harold Barr sustained personal injuries when he fell from his bicycle while riding on or near Leake Street in Hancock County, Mississippi. Hancock County recently had either installed or upgraded a culvert on that street to address a drainage problem. Once the work on the culvert was completed, Hancock County backfilled the gap in the road with a dirt mixture. Barr contended that while riding along the street, his tire sunk into the backfill material, causing him to fall and sustain serious personal injuries.

¶ 3. Barr’s complaint, filed November 12, 2003, alleged that Hancock County was negligent in failing to ensure that “the roadway” was safe and in good condition and in failing to discover and warn Barr of defects and unsafe conditions in “the roadway.” In his deposition, Barr stated that he believed that Hancock County should have re-paved the road rather than using fill dirt.

¶ 4. Hancock County filed a motion for summary judgment on July 29, 2004. In its motion, Hancock County argued that the decision to maintain the roadway by backfilling the area around the culvert was a discretionary duty. Specifically, Hancock County argued that the decision was related to the maintenance of roadways, an area which is considered a discretionary function of government; therefore, Hancock County was entitled to sovereign immunity under Mississippi Code Annotated Section 11 — 46—9(l)(d) (Rev.2004).

¶ 5. In opposition to the motion for summary judgment, Barr argued that the replacement of culverts was a ministerial function rather than a discretionary function under Mississippi Code Annotated Section 65-21-1 (Rev.2002). Barr further argued that ministerial functions are imposed by law and are not subject to sovereign immunity.

¶ 6. The trial court held that Mississippi Code Annotated Section 65-21-1 was inapplicable and that Hancock County’s decisions regarding the installation of the culvert and the resulting road repair and maintenance were discretionary functions of government. Accordingly, the trial court held that Hancock County was entitled to sovereign immunity. The trial court further held that the failure to place warning signs was not a factor in Barr’s accident, as Barr was aware of the roadway conditions at the time of his accident. Notwithstanding Barr’s knowledge of the roadway conditions, the trial court also held that placement of warning signs was a discretionary function; therefore, Hancock County was immune from suit.

STANDARD OF REVIEW

¶ 7. In reviewing a trial court’s decision on a motion for summary judgment, the Court follows the same standard set forth in Mississippi Rule of Civil Procedure 56(c). See McMillan v. Rodriguez, 823 So.2d 1173, 1176(¶ 9) (Miss.2002)

This Court employs a de novo standard of review of a lower court’s grant or denial of a summary judgment and examines all the evidentiary matters before it-admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says to the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant should be given the benefit of the doubt.

Id. at 1176-77(¶ 9) (citations omitted).

ANALYSIS

¶ 8. In reviewing the record, the Court finds that there is no dispute regarding the facts of this case. Barr sustained injuries while riding his bike across a section of a paved road that Hancock County had recently dug up to work on or install a culvert. Barr testified in his deposition that his tire became stuck in the backfilled area and caused him to fall. As a result of the fall, he suffered a broken leg that has required two surgeries and ongoing medical care. Barr further testified in his deposition that he was aware of the condition of the roadway, having traveled it by car approximately ten times and by bicycle two or three times prior to his accident. Barr believed that the accident would not have occurred had Hancock County repaved the road so that it was returned to its original condition.

¶ 9. Hancock County is a political subdivision of the State of Mississippi and is subject to the Mississippi Tort Claims Act. See Miss.Code Ann § 11-46-1 through § 11-46-23 (Rev.2002). Under the Mississippi Tort Claims Act, the state and its political subdivisions are “immune from suit at law or in equity on account of any wrongful or tortious act or omission or breach of implied term or condition of any warranty or contract ...” except as waived by statute. Miss.Code Ann. §§ 11-46-3 to 11-46-6. The Mississippi Tort Claims Act also preserves sovereign immunity in specific circumstances. The relevant portion of the statute states as follows: “(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: ... (d) [biased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused;.... ” Miss.Code Ann. § 11-46-9(l)(d).

¶ 10. To determine whether an act or a failure to act is a discretionary function, the Mississippi Supreme Court has used a two-part test: “(1) whether the activity involved an element of choice or judgment, and if so; (2) whether the choice or judgement in supervision involves social, economic or political policy alternatives.” Jones v. Miss. Dep’t of Transp., 744 So.2d 256, 260 (¶¶ 9-10) (Miss.1999). “Conversely, conduct will be considered ministerial, and, therefore, immunity will not apply, if the obligation is imposed by law leaving no room for judgment.” Doe v. State ex rel. Miss. Dep’t of Corr., 859 So.2d 350, 356(¶23) (Miss.2003) (citing Leflore County v. Givens, 754 So.2d 1223, 1226(¶ 6) (Miss.2000)).

¶ 11. Hancock County argues that the decision to backfill the area around the culvert was a discretionary function and that Hancock County is immune from liability. Barr cites Mississippi Code Annotated Section 65-21-1, which regulates some aspects of culvert construction, and argues that the completion of the work on the culvert was not a discretionary function but a ministerial duty. Mississippi Code Annotated Section 65-21-1 states in pertinent part that “[a]ll culverts hereafter built, rebuilt, or placed in any public road in this state shall be not less than the full width of the crown of the roadway, and shall have guide or warning posts on either side.”

¶ 12. This Court agrees with the trial court that “the Plaintiffs claim against Hancock County is based upon a claim that Hancock County negligently maintained or repaired the roadway where the culvert was installed” and that Mississippi Code Annotated Section 65-21-1 is inapplicable in this case. Barr does not argue that the culvert does not meet the guidelines set forth in the statute but rather that “the placement of a culvert” is a ministerial function of government. The Court does not find this argument persuasive.

¶ 13. The statute plainly states that certain construction requirements must be met once a governmental entity determines that a culvert is needed. Additionally, the statute only sets forth the minimum requirements to be met with regard to the construction of culverts. See Mohundro v. Alcorn County, 675 So.2d 848, 854 (Miss.1996). Any decisions made outside of those minimum requirements are discretionary functions of government.

¶ 14. In this case, Barr argues that Hancock County should have re-paved the road rather than completing the construction with the use of fill dirt; therefore, the construction or repair of the culvert is incidental to the analysis, as it is the condition of the road and not the culvert itself that Barr contends caused his accident. Road maintenance and repair have long been held to be a discretionary function of government. See, e.g., Brewer v. Burdette, 768 So.2d 920, 923(¶ 17) (Miss.2000); Lang v. Bay St Louis/Waveland School Dist, 764 So.2d 1234, 1239(¶ 19) (Miss.1999); Mohundro, 675 So.2d at 854 (summarizing a series of cases in which road maintenance and repair are held to be discretionary functions).

¶ 15. The Court holds that the placement of a warning sign at the culvert would be considered a ministerial function, as set forth in Mississippi Code Annotated Section 65-21-1; however, Barr can cite no facts which would support a finding that Hancock County’s failure to set up a warning sign proximately caused his injury. Without proof of causation, Barr’s negligence claim must fail. See, e.g., Miss. Dep’t of Transp. v. Cargile, 847 So.2d 258, 262(¶ 11) (Miss.2003).

¶ 16. Barr’s complaint and his own testimony foreclose any findings that Hancock County’s failure to erect warning signs at the culvert caused the accident. Barr’s complaint specifically refers to defects in the roadway and Hancock County’s failure to warn of defects in the roadway. Additionally, his deposition testimony reflects that the condition of the road, and not the culvert itself, caused the accident. Finally, Barr testified that he was aware that the culvert had been constructed and was aware of the condition of the road, having traveled that section multiple times by car and by bicycle. Accordingly, Hancock County’s failure to perform their ministerial duty by placing warning signs at the culvert did not contribute to Barr’s injuries, and his claim must fail as a matter of law.

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

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


source: Caselaw Access Project

author: MYERS, P. J.,

license: Public Domain

text:
    Deviassi ADAMS, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00405-COA.
    Court of Appeals of Mississippi.
    Feb. 27, 2007.

      Deviassi Adams, Appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   MYERS, P. J.,

for the Court.

¶ 1. Deviassi Adams appeals the denial of his motion for post-conviction relief by the Circuit Court of Rankin County, in which he contested his conviction of grand larceny by claiming that he entered a guilty plea involuntarily and unintelligently, asserted that the indictment against him was defective and alleged that he received ineffective assistance of counsel. The trial judge denied Adams’ motion for post-conviction relief, and we affirm the trial court’s decision.

DISCUSSION

I. WHETHER ADAM’S GUILTY PLEA WAS MADE KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY?

¶ 2. A guilty plea is not binding upon a criminal defendant unless it is entered voluntarily and intelligently. Myers v. State, 583 So.2d 174, 177 (Miss.1991). A plea is deemed “voluntary and intelligent” only where the defendant is advised concerning the nature of the charge against him and the consequences of the plea. Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991). The inmate asserting involuntariness of his guilty plea bears the burden of establishing his claim. Green v. State, 802 So.2d 181, 184(¶ 19) (Miss.Ct.App.2001). To determine whether a plea is entered voluntarily, knowingly, and intelligently, a reviewing court must examine the entire record. Weatherspoon v. State, 736 So.2d 419, 421(¶ 5) (Miss.Ct.App.1999). Our standard for reviewing the voluntariness of a guilty plea is well-settled: we will not set aside trial court findings unless the findings are clearly erroneous. Swindoll v. State, 859 So.2d 1063, 1065(¶ 9) (Miss.Ct.App.2003).

¶ 3. Adams argues that he entered his guilty plea involuntarily and unintelli-gently because his attorney failed to advise him of his right against self-incrimination, right to trial, and right to cross-examine the witnesses against him. In support of his argument, Adams claims that the judge never asked him whether he understood the charges against him. Adams further argues that his plea was unintelligent because the judge never inquired of his mother whether she wanted her son to plead guilty or go to trial.

¶ 4. Our review of the record clearly establishes that the trial judge asked of Adams several questions regarding his understanding of the nature of the charge against him, his understanding of the consequences accompanying the entering of a guilty plea, and his overall understanding of the plea process. Adams answered the judge affirmatively on each question, demonstrating his knowledge and intelligence concerning his plea. As to Adams’ argument regarding his mother’s endorsement of the guilty plea, we note that at the time Adams entered his guilty plea, he was twenty-four years old and had completed the eleventh grade. Adams was represented by an attorney, and nothing in the record suggests that Adams’ mother represented him in any capacity. The trial court owed no duty to Adams to consult his mother before accepting his guilty plea. After reviewing the record and scouring the plea hearing transcript thoroughly, we conclude that Adams has not met his burden of showing that he unintelligently, unknowingly, and involuntarily entered his guilty plea before the circuit court.

II. WHETHER THE INDICTMENT AGAINST ADAMS WAS DEFECTIVE?

¶ 5. Adams claims that he was never indicted by the grand jury. However, in his brief to this Court, Adams asserts within another part of his argument that his counsel was “ineffective for not investigating the defectiveness of the indictment,” thus admitting the existence of an indictment. Adams further argues that the indictment (which he simultaneously alleges does not exist) contains conflicting dates, and argues that the discrepancies of the dates indicates that the indictment against him is forged. He points out that the indictment reflects that the grand jury convened during the January 2004 term, but did not file the indictment against him until May 2004. We .find no significance in the fact that the indictment bears a grand jury term date preceding the indictment’s filing date.

¶ 6. Moreover, Adams pled guilty to the charges contained within the indictment he alleges not to have existed. The entry of a guilty plea constitutes an admittance of “all elements of a guilty charge” and “operates as a waiver of all non-jurisdictional defects contained in an indictment.” Brooks v. State, 573 So.2d 1350, 1352 (Miss.1990). Adams’ argument concerning the defective indictment has no merit, and we dismiss this issue accordingly.

III. WHETHER ADAMS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL?

¶ 7. Adams claims that he received ineffective assistance of counsel, asserting that his attorney failed to investigate the conflicting dates of the indictment against him, did not inform him of his constitutional rights, and failed to object to the introduction of sentencing factors. Claims of ineffective assistance of counsel are reviewed by using the two-pronged test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail on a claim of ineffective assistance of counsel, Adams has the burden of proof to show by a preponderance of the evidence that (1) counsel’s performance was deficient, and (2) that the deficiency did, in fact, prejudice the defense’s case so as to prevent a fair trial. Id.; Hall v. State, 735 So.2d 1124, 1127(¶6) (Miss.Ct.App.1999). In determining whether the first prong of Strickland concerning counsel’s performance has been satisfied, we must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.....” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. The second prong of the Strickland test requires that Adams prove prejudice by showing that there was a reasonable probability, that but for counsel’s errors, the trial court’s result would have been different. Id. at 699, 104 S.Ct. 2052. Whether the prongs of this test are met is determined by an examination of the totality of the circumstances. Id.

¶8. We have already found that the indictment against Adams was not defective. Therefore, we decline to discuss Adams’ argument regarding his attorney’s failure to investigate any defects therein. In further support of his argument of ineffective assistance of counsel, in a bare statement, Adams asserts that his attorney did not inform him of his constitutional rights. We are uncertain as to which constitutional rights Adams is referring, as he provides no supporting argument in his brief. Furthermore, the transcript of the plea hearing indicates that the trial judge asked Adams whether he was satisfied with the services, advice, counsel, and assistance of his attorney and Adams answered affirmatively. Adams last points this Court to his counsel’s failure to object to the introduction of sentencing factors. During the hearing on the matter, the trial judge allowed a statement from a family member of the victim to be read aloud. It is undisputed that Adams’ attorney did not object to this statement’s introduction. However, decisions to make particular objections fall within the purview of the attorney’s trial strategy and “cannot give rise to an ineffective assistance of counsel claim.” Carr v. State, 878 So.2d 991, 1003(¶27) (Miss.2004). We find no error in Adams’ attorney’s decision not to object, as our supreme court has held that “the opinions of the victim’s family members as to the crimes and the defendant [are] permissible victim impact testimony.” Havard v. State, 928 So.2d 771, 792(¶ 37) (Miss.2006). “Victim impact evidence, if relevant, is admissible in the sentencing stage.” Wilcher v. State, 697 So.2d 1087, 1104 (Miss.1997). Finally, Adams provides no evidence to this Court that he suffered harm as a result of his attorney’s performance as is required under the second prong of the Strickland test; therefore, we find this assignment of error to be without merit.

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

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


text:
    Eddie SAUCIER a/k/a Eddie Lee Saucier, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01630-COA.
    Court of Appeals of Mississippi.
    Feb. 27, 2007.

      Lisa D. Collums, Gulfport, attorney for appellant.
    Office of the Attorney General by Desh-un T. Martin, attorney for appellee.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   MYERS, P. J.,

for the Court.

¶ 1. Eddie Saucier was convicted in the Circuit Court of Harrison County of the July 2, 2002 murder of Dennis Wilson and sentenced as a habitual offender .to life imprisonment without the possibility of parole. At the close of the prosecution’s case-in-chief, Saucier moved for a directed verdict, which was denied. Following the entry of the final judgment, Saucier filed a motion for a judgment notwithstanding-the verdict and a motion for a new trial; both were denied. Aggrieved by the circuit court’s rulings, Saucier now appeals, raising the following two issues:

I. WHETHER THE TRIAL COURT ERRED WHEN IT DENIED SAUCIER’S MOTIONS FOR DIRECTED VERDICT AND JNOV?
II. WHETHER THE TRIAL COURT ERRED WHEN IT DENIED SAUCIER’S MOTION FOR A NEW TRIAL?

¶ 2. Finding no reversible error, we affirm the judgment of the circuit court.

STATEMENT OF FACTS

¶ 3. On the morning of July 2, 2002, residents of the L.C. Jones Apartments, located in Gulfport, Mississippi, noticed a chair pushed against the wall, underneath an open window, outside the apartment of Dennis Wilson, an elderly amputee. Concerned for Wilson’s well-being and fearing that someone may have broken into his apartment, one of Wilson’s neighbors called to him through the open window. When Wilson failed to respond, the neighbor summoned the police. Officers Walter Griffin and John Prystupa of the Gulfport Police Department responded to the call, and found Wilson deceased, lying face up in his bed with a blood soaked pillow covering his face. The medical examiner later determined, and testified at trial, that Wilson’s body showed several signs of struggle, including lacerations to his mouth, consistent with being punched, and several stab wounds to the head, including one entering Wilson’s eye socket, piercing both the sinus cavity and brain. The entry patterns of the stab wounds were consistent with those made by a Phillips head screwdriver. In an adjacent bedroom, officers found Wilson’s empty wallet lying on the floor near his safe. The safe had been pried open, and the tools of the infiltration, a pair of snips and a hammer, were lying on the floor nearby. The officers also noticed a bucket and lid with reddish-brown smudges lying on the floor near the safe. Forensic analysis later revealed that the smudges on the bucket and lid contained the DNA of Eddie Saucier, a man with two previous felony burglary convictions, who lived in an adjacent apartment complex.

¶4. The record indicates that Wilson and Saucier had become friendly in the months leading up to Wilson’s murder, and that Saucier often did favors for Wilson such as making minor repairs to Wilson’s apartment or driving Wilson to the grocery store. Wilson’s step-daughter, Rose Thompson, testified that Wilson moved to the government subsidized L.C. Jones Apartments after his home burned down in 1998. Thompson testified that Wilson received $15,000 in homeowners insurance proceeds as a result of the fire and that he kept most of this money in the safe in his apartment. Thompson further testified that she had no knowledge of Wilson’s financial status at the time of his murder, but that she was not aware of any extravagant purchases made by Wilson since he received the insurance proceeds, and he had not begun rebuilding his home. She testified that, to the best of her knowledge, the majority of Wilson’s insurance money was still stored in his safe at the time of his murder. Several other neighbors and relatives testified to having knowledge of both Wilson’s receipt of the insurance proceeds and of the safe he kept in his apartment. Further, the general consensus of the neighbors and relatives who testified was that Saucier had knowledge of Wilson’s receipt of the insurance proceeds and that Wilson kept most of the money in his safe.

¶ 5. The record further indicates that, in the days following Wilson’s murder, Saucier was seen with an unusually large amount of cash. Robert Callahan, a neighbor of both Wilson and Saucier, testified that on the afternoon following Wilson’s murder, Saucier gave him five dollars to drive him home from a friend’s house and another five dollars to go to the store and buy some beer. Later, Saucier offered Callahan $100 if he would go to the store and buy him some cigarettes, a lighter, and some whiskey; Callahan refused. Callahan also testified that two days after Wilson’s murder, Saucier offered him $200 to drive him to his brother’s house in Laurel. Callahan testified that, while on the way to Laurel, Saucier was acting strangely and asked to stop at the Wal-Mart in Hattiesburg. There, Saucier bought new clothes and placed the clothes he was wearing in a plastic bag. Callahan testified that he jokingly asked Saucier if he had killed someone to get “all that money,” and Saucier just smiled. After Callahan dropped Saucier off in Laurel, Saucier fled to Atlanta, Georgia, and then California, where he was eventually arrested and extradited back to Harrison County, Mississippi.

¶ 6. At Saucier’s trial, the most damaging testimony offered against him was that of Gregory Clayton. Clayton and Saucier had been cellmates following Saucier’s arrest, and Clayton testified to discussing Wilson’s murder with Saucier. Clayton testified that Saucier admitted that he had broken into Wilson’s apartment. Clayton’s testimony further provided that Saucier intended only to steal Wilson’s money so that he could purchase drugs, but when Wilson awoke, Saucier stabbed him with a screwdriver and smothered him with a pillow. Wilson’s autopsy confirmed that Wilson died as a result of blood from his stab wounds seeping into his lungs and causing him to suffocate. Saucier told Clayton that after killing Wilson, he went into the other bedroom, pried open the safe with a pair of snips and a hammer, and took $8,500. Clayton’s testimony went unrebut-ted and the record indicates, that in exchange for his testimony, Clayton did not receive any promise of a reduction in the mandatory sentence he was already serving on a robbery conviction.

LEGAL ANALYSIS

I. WHETHER THE TRIAL COURT ERRED WHEN IT DENIED SAUCIER’S MOTIONS FOR DIRECTED VERDICT AND JNOV?
II. WHETHER THE TRIAL COURT ERRED WHEN IT DENIED SAUCIER’S MOTION FOR A NEW TRIAL?

¶ 7. We address the issues presented by Saucier together.

STANDARD OF REVIEW

¶ 8. Assignments of error based upon a denial of a motion for a directed verdict or a JNOV challenge the sufficiency of the evidence. Boose v. State, 851 So.2d 391, 394(¶ 13) (Miss.Ct.App.2003). The standard of review of a claim that the evidence presented at trial was insufficient to support the verdict requires the reviewing court to accept as true all evidence tending to support the verdict, including the inferences derived therefrom, and ask the question, “after viewing the evidence in the light most favorable to the prosecution, [if] any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Dilworth v. State, 909 So.2d 731, 736(¶ 17) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). This Court may only reverse the denial of the directed verdict or JNOV “where with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.” Boose, 851 So.2d at 394(¶ 14) (quoting Harveston v. State, 493 So.2d 365, 370 (Miss.1986)).

119. As distinguished from a motion for directed verdict or JNOV, assignments of error based upon a denial of a motion for a new trial challenge the weight, not the sufficiency of the evidence. Id. at 394(¶ 13). The standard of review.for deciding whether or not a jury verdict is against the overwhelming weight of the evidence is that the reviewing court must accept as true all evidence which supports the verdict and will reverse only if convinced that the trial court abused its discretion in not granting a new trial. Bradley v. State, 921 So.2d 385, 389(¶ 12) (Miss.Ct.App.2005) (citing Price v. State, 898 So.2d 641, 652(¶26) (Miss.2005)). A new trial will not be ordered unless we are convinced that the verdict is so contrary to the overwhelming weight of the evidence that to allow the verdict to stand would be to sanction an unconscionable injustice. Id. This high standard is necessary because any factual disputes are properly resolved by the jury, not by an appellate court. Id.

DISCUSSION

II10. Saucier contends that the prosecution’s case was based entirely on the following evidence: (1) that he had a significant amount of cash in his possession in the days following Wilson’s murder, (2) that his DNA was found on a bucket near Wilson’s safe, and (3) that the testimony of Gregory Clayton, a convicted felon, sought favor from the State. As to the money, Saucier argues that not one witness ever testified to seeing any money in Wilson’s safe and that the sum of money witnesses saw in Saucier’s possession in the days following the murder was substantially less than the $8,500 he was alleged to have taken. As to the DNA, Saucier argues that the State’s expert in DNA analysis could not establish when Saucier’s DNA was placed on the bucket. He also points out that his DNA was not found anywhere else in Wilson’s apartment. Finally, Saucier attacks Clayton’s credibility stating that Clayton is “a criminal and a liar,” and asserts that when Clayton was arrested on the robbery charge, for which he is now serving time, he gave the police an alias. Further, Saucier argues that Clayton left out significant details about how the crime was committed and that any knowledge Clayton had about Wilson’s murder came from reading the trial transcript, not from any conversation between Saucier and Clayton. Saucier challenges both the sufficiency of the evidence presented to establish his guilt and the weight assigned to the evidence by the jury. He claims that the above facts would prevent any reasonable juror from finding him guilty of Wilson’s murder beyond a reasonable doubt.

¶ 11. As to Saucier’s challenge to the sufficiency of the evidence, we recognize that in order to convict Saucier of murder, the State was required to prove beyond a reasonable doubt that Eddie Saucier: (1) killed Dennis Wilson (2) without authority of law (3) with deliberate design to effect his death. Miss.Code Ann. § 97-3-19(l)(a) (Rev.2006). Viewing the evidence presented at trial in the light most favorable to the State, we find the testimony of Callahan and Clayton, as well as the presence of Saucier’s DNA at the crime scene to be sufficient evidence to allow a rational juror to conclude that the State proved each element of murder against Saucier. We therefore affirm the circuit court’s denial of Saucier’s motion for a directed verdict and JNOV. As to Saucier’s challenge to the weight given to the evidence, we hold that it is the jury’s function to decide which evidence and testimony is credible and which is not. Bradley, 921 So.2d. at 390(¶ 16). Based on the evidence presented, we are satisfied that the jury did just that and returned a reasonable verdict. We, therefore, affirm the decision of the circuit court.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE WITHOUT THE POSSIBILITY OF PAROLE OR PROBATION IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


author: STUART, Justice.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Reggie Whitaker v. Roderick ALEXANDER.
    1041809.
    Supreme Court of Alabama.
    July 21, 2006.
    Micheál S. Jackson and Michael B. Beers of Beers, Anderson, Jackson, Patty & Van Heest, P.C., Montgomery, for appellants.
    Nat Bryan and Thomas M. Powell of Marsh, Rickard & Bryan, P.C., Birmingham, for appellee.
   STUART, Justice.

Roderick Alexander sued State Farm Mutual Automobile Insurance Company and Reggie Whitaker, alleging fraud. At the close of the evidence, State Farm and Whitaker moved for a judgment as a matter of law; the trial court denied the motion. The jury returned a verdict in favor of Alexander in the amount of $200,000. State Farm and Whitaker then again moved for a judgment as a matter of law or, in the alternative, for a new trial. The trial court denied the motion; State Farm and Whitaker appeal. We reverse and remand.

Facts

On October 18, 2000, Crystal Sellers and Roderick Alexander were involved in a two-vehicle automobile accident. Sellers, who was 16 years old at the time of the accident, was driving a 1997 Mazda Proté-gé automobile owned by her parents and insured by State Farm. Sellers was covered under the State Farm insurance policy, which was issued to her parents. Sellers testified that she presented the State Farm insurance card to one of the officers at the scene. The accident report indicates that Sellers was a minor and that the automobile she was driving was insured by State Farm.

The testimony established that State Farm investigated the accident and interviewed Alexander. State Farm determined that it could not establish whether Sellers or Alexander was liable for the accident, and it notified Alexander that because it could not determine liability, State Farm would cover the damage to Sellers’s vehicle and Alexander would need to pursue coverage for damage to his vehicle and person from his insurance carrier. State Farm declared Sellers’s automobile a total loss, paid Sellers’s parents the fair market value of the automobile, and closed its file on the accident in May 2001.

During the summer of 2001, Alexander retained Michael Gedgoudas, an attorney, to pursue potential recovery for the damage he had sustained in the accident. According to Alexander, Gedgoudas informed him that based on his investigation Sellers did not have any insurance coverage; therefore, he was going to pursue an uninsured-motorist claim with Alexander’s insurance carrier, Alfa Mutual Insurance Company. Alexander stated that he relied on Gedgoudas to communicate with the insurance companies and to pursue the best legal theories for recovery.

The record establishes that Gedgoudas represented to Alfa that Sellers had no insurance coverage at the time of the accident and, therefore, that Alexander was pursuing an uninsured-motorist claim on his policy with Alfa. Alfa paid Alexander the full amount of his uninsured-motorist coverage — $20,000.

Alexander testified that after Gedgou-das informed him that he had received his policy limits from Alfa, he and Gedgoudas discussed, because Alexander lived with his grandparents, a possible uninsured-motorist claim on his grandparents’ automobile insurance policy with Farmer’s Insurance Company. After an attempt to negotiate a settlement with Farmer’s Insurance, Gedgoudas sued Farmer’s Insurance, seeking uninsured-motorist benefits for Alexander under his grandparents’ policy.

At a pretrial hearing, Farmer’s Insurance, relying on the accident report, told the trial court that Sellers may have been insured by State Farm at the time of the accident. The trial court ordered Alexander and Farmer’s Insurance to investigate whether Sellers in fact was an uninsured motorist at the time of the accident. Ged-goudas contacted Maceo Hall, a State Farm claims team manager, who informed Gedgoudas that he could find no evidence indicating that State Farm insured Sellers or the vehicle she was driving at the time of the accident. Hall sent Gedgoudas a letter, stating: “We researched our records and found no evidence that we insured Ms. Sellers or the 1997 Mazda during the time of the accident. Further we found no evidence that we insure either at present time.”

Farmer’s Insurance’s investigation, however, discovered that Sellers was covered by a State Farm policy at the time of the accident. Mike Sharp, also a State Farm claims team manager, sent Farmer’s Insurance a certificate of insurance, which indicated that State Farm, through a policy issued to Sellers’s parents, insured Sellers and the automobile she was driving on the date of the accident.

Gedgoudas then amended the complaint against Farmer’s Insurance to add as defendants State Farm and Reggie Whitaker, the State Farm agent Gedgoudas’s secretary/paralegal had allegedly contacted about whether Sellers had been covered under a State Farm insurance policy at the time of the accident. The complaint alleged that the conduct of State Farm and Whitaker

“constitutefd] legal fraud in that the representation made by the defendant were misrepresentations of material facts made willfully to deceive and/or misrepresentations of material fact made recklessly or by mistake which were acted upon by [Alexander].”

Farmer’s Insurance was dismissed by stipulation. Alexander’s case against State Farm and Whitaker proceeded to trial; because Gedgoudas would be a witness at trial, Alexander was represented in the litigation by Nat Bryan.

At the trial, Gedgoudas testified that in 2001, when Alexander retained him, he was a sole practitioner and that Tina Rodgers was employed as his secretary/paralegal. Gedgoudas explained his standard operating procedures for pursuing a personal-injury case and in particular his investigation of Alexander’s case. The following testimony was elicited:

“[Alexander’s counsel]: Had you trained Ms. Rodgers, your paralegal and secretary, in certain procedures you expected her to follow when you took in a new file?
“[Gedgoudas]: Absolutely.
“[Alexander’s counsel]: And tell the ladies and gentlemen of the jury the procedures that you had taught her to follow.
“[Gedgoudas]: Basically, it kind of runs the gamut from opening a file from the very beginning of the client coming in the office. That’s getting the file set up in the way I had my files set up with regard to medical authorization, personal information, things of that nature. All of that is just a standard procedure that’s going to happen in every case regardless of the matter that’s involved.
“If you’re asking specifically with respect to an accident case, or with respect to any case like Mr. Alexander’s, essentially the first thing she has to do is get a letter out to the client. After they come in, we talk at length about what the process is going to be like, what to expect, how long it may or may not take and just the general procedures .... She’s also instructed to confirm coverage with regard to the at-fault party. If there is no coverage from the at-fault party, we proceed to coverage with — or a possible [uninsured- or un-derinsured-motorist] claim.
“[Gedgoudas]: ... So her first thing to do would be to get the follow-up and get letters of representation, things of that nature.
“[Alexander’s counsel]: Would you also have obtained a copy of the Alabama Uniform Traffic Accident Report?
“[Gedgoudas]: If [the client] didn’t bring it with him, we would have gotten it immediately.
“[Alexander’s counsel]: And the accident report gives you a lot of data about what happened on the day of the accident and identifying information about the other driver?
“[Gedgoudas]: Yes, sir.
“[Alexander’s counsel]: All right. Now, as far as you recall from her working with you, did Ms. Rodgers follow that procedure?
“[Gedgoudas]: As far as I recall, she did.
“[Alexander’s counsel]: And did you have any problems with her not following the procedure and following your instructions about not contacting the insurance company or confirming whether there is coverage?
“[Gedgoudas]: No. I was pleased with her performance on the job and when she left I gave her a good recommendation.
“[Alexander’s counsel]: Okay. Let’s talk about [Alexander’s] case specifically. And I have already — the jury will already have in evidence some notes [from your file], and I want to make sure that you recognize these as well....
“[Alexander’s counsel]: And was that a typical type of thing that she would do was to note and record information she obtained in doing her job?
“[Gedgoudas]: Sure.
“[Alexander’s counsel]: And would she put that either on the file or in the front cover of the file usually?
“[Gedgoudas]: Usually it would be— that’s kind of the way we would communicate back and forth until a letter would go out. I would put some sort of sticky note on the top of the file, on the outside of the file, give it to her. And likewise in all likelihood, this would be on top of the file.
“[Alexander’s counsel]: That note reflects that it was — it was taken or written on 07/27/01? [] ■
“[Gedgoudas]: That’s correct.
That’s correct.
“[Alexander’s counsel]: Now, let me show you [another note]. That is also a smaller ‘Post-it Note,’[] correct? []
“[Gedgoudas]: Correct.
“[Alexander’s counsel]: And that has some of your writing she identified and some of hers?
“[Gedgoudas]: Everything in black is [Rodgers’s] and everything in blue is mine.
“[Alexander’s counsel]: All right. And what did you tell — are you giving her messages like a lot of us do to other workers when you wrote that?
“[Gedgoudas]: Yes.
“[Alexander’s counsel]: What was the message you were giving to her?
“[Gedgoudas]: I’m telling her to send to State Farm a letter of representation and to reference their insured.
“[Alexander’s counsel]: Okay. And what is under that?
“[Gedgoudas]: Sent, mean right here?
“[Alexander’s counsel]: Right.
“[Gedgoudas]: That just says send, with an arrow pointing up, and I’m just instructing her to go ahead and send it.
“[Alexander’s counsel]: All right, and she’s got ‘Nettie’ and ‘Reggie’ with a fax number and a phone number, correct?
“[Gedgoudas]: Correct.
“[Alexander’s counsel]: All right. Do you remember as we sit here today anything happening about any communications you had with [Rodgers] before a fax cover sheet and possible accident report was sent to Mr. Whitaker’s agency and [Alexander’s] file?
“[Gedgoudas]: Do I remember specifically any conversations with Tina?
“[Alexander’s counsel]: Yeah, before a fax cover sheet was sent?
“[Gedgoudas]: Well, I mean, I would have told her to call State Farm to get coverage. I want to say, and I’m not sure, but I want to say that this was the first thing that came back to me.
“[Alexander’s counsel]: When you say this, you’re talking about — •
“[Gedgoudas]: [The note dated July 27, 2001,] was the first thing that came back to me as the best that I recall and that she had been told—
“[Alexander’s counsel]: ... On 09/07 or 09/10/01 that is a fax to Reggie Whitaker’s office, correct, based on what you know now?
“[Gedgoudas]: Correct.
“[Alexander’s counsel]: And is that pursuant, as far as you can tell, to your instruction for her to send the letter of representation to State Farm?
“[Gedgoudas]: Correct....
“[Alexander’s counsel]: Where you instructed her to do that, correct?
“[Gedgoudas]: Correct.
“[Alexander’s counsel]: And is the reason that you do that so that the insurance company that is insuring the wrongdoer or the at-fault party knows of your representation and knows to deal with you regarding any aspect of that claim?
“[Gedgoudas]: Absolutely. They should have — once we get our representation letter out, they know not to contact the client [in] any way, that everything has to go through our office. So at that point we had obviously determined that Nettie — I don’t know who Nettie is, but Nettie is the person directed to send the letter to and the fax. I know that the fax contained the cover sheet and the accident report.
“[Alexander’s counsel]: That fax goes out. According to [Rodgers], it’s confirmed that it went through at 9:22 a.m.
“Okay. Let me show you Exhibit No. 4. And do you recall that document?
“[Gedgoudas]: Yes.
“[Alexander’s counsel]: What is it?
“[Gedgoudas]: This is a fax to Mike Lovelady at Alfa that was sent out on the same day approximately six hours later.
“[Alexander’s counsel]: Okay. Now, between when the fax that went to Nettie Barnes and when you faxed the letter to Mike [Lovelady], during that six-hour period, do you remember Tina Rodgers coming to you and having a conversation about whether there was coverage on Crystal Sellers?
“[Gedgoudas]: I was provided information with respect to coverage.
“[Alexander’s counsel]: Well, do you recall having a conversation with [Rodgers]?
“[Gedgoudas]: I do.
“[Alexander’s counsel]: And [Rodgers] is your secretary, right?
“[Gedgoudas]: She is.
“[Alexander’s counsel]: And lawyers and secretaries and people that work and their co-employees or coworkers do things for them. They have conversations all the time, right?
“[Gedgoudas]: Constantly.
“[Alexander’s counsel]: And you would ask her to do a specific task which was to contact State Farm and to fax a letter of representation, right?
“[Gedgoudas]: Which is what I did.
“[Alexander’s counsel]: Which is what she did, she sent a letter saying y’all need to send a letter of representation, correct?
“[Gedgoudas]: Correct.
“[Alexander’s counsel]: And was a letter of representation ever sent to State Farm?
“[Gedgoudas]: No.
“[Alexander’s counsel]: All right. And what did you do after this conversation you had with [Rodgers]?
“[Gedgoudas]: After the conversation with [Rodgers], I instructed her to send a representation] letter to Mike Lovela-dy in Montgomery with Alfa, which was [Alexander’s underinsured/uninsured-motorist] carrier.
“[Alexander’s counsel]: And what was the purpose for sending Alfa a letter on the same day that you faxed one to State Farm and not send one to State Farm?
“[Gedgoudas]: I sent one to Alfa because we had [an uninsured-motorist] claim to provide at the time. I did not send one to State Farm because we were informed there was no coverage.
“[Alexander’s counsel]: If there had been coverage, if you had been provided information there was coverage through State Farm Mutual Automobile Insurance Company on Crystal Sellers, would you have sent a letter of representation to State Farm?
“[Gedgoudas]: To State Farm I would have.
“[Alexander’s counsel]: Sure.
“[Gedgoudas]: I would not have sent one to Alfa.
“[Gedgoudas]: And the question was assuming that I had been provided with information that there was no coverage?
“[Alexander’s counsel]: Right.
“[Gedgoudas]: I would not have sent a letter to State Farm, a representation] letter. Once I’m told there is no coverage with them, it would be pointless for me to send a representation] letter.
“[Alexander’s counsel]: All right.
“[Gedgoudas]: I would send a [representation] letter to Alfa.
“[Alexander’s counsel]: Is there any reason to send a letter to an insurance company if you are provided information they don’t insure the wrongdoer?
“[Gedgoudas]: It would be a complete waste of time.
“[Alexander’s counsel]: And if you write letters saying to Alfa ‘I’ve confirmed there’s not coverage’ when you have it, and in your judgment would that affect your credibility?
“[Gedgoudas]: I’m not going to stick my neck out on the line like that, not for any one claim or any group of claims. This — I’ve known [the Alfa claims representative] forever. And I told him what I knew to be true. We proceeded with the [uninsured-motorist] claim from that standpoint. I went on and told the same thing to Farmer’s. I told the same thing to Judge Boohaker when we were up here on the subsequent hearing. I told everybody that I dealt with in this case that there was not coverage through State Farm.
“[Alexander’s counsel]:' All right. We’ll come to some of those in a moment. But specifically just with Alfa, if you had written a letter and you did not have satisfactory confirmation to you that there was not coverage on Crystal Sellers and you wrote a letter saying T have confirmed there’s no coverage,’ do you believe that would affect your ability to deal with them in the future?
“[Gedgoudas]: Oh, certainly.
“[Alexander’s counsel]: And would you have ever written a letter like that to [the Alfa claims representative] or to Farmer’s Insurance Company, if you did not have information you believed was reliable?
“[Gedgoudas]: No, no.”

Rodgers also testified ábout office procedures and the investigation of Alexander’s case: She explained that while she worked for Gedgoudas she frequently used “Post-it” notes to communicate with Gedgoudas or to remind herself about a case. When questioned about the note dated July 27, 2001, Rodgers stated that the note indicated that she “called State Farm about Crystal Sellers. That [she] spoke to somebody. There was no policy on the vehicle. And the person [she] spoke to would have been Reggie Whitaker at that [telephone] number” on the note. Rodgers testified that she did not specifically remember the conversation with Whitaker, but that the note refreshed her recollection that she had made a telephone call to him and had recorded the contents of the conversation by a handwritten note.

Rodgers also identified the other “Post-it” note found in Alexander’s file. According to Rodgers, both she and Gedgoudas had written on that note. She testified that the note indicated that Gedgoudas wanted her to send a representation letter to State Farm, referencing Crystal Sellers. She further explained that she had written “Nettie,” “Reggie,” and a telephone number, and then a facsimile transmission telephone number on the note. She testified that her actions and notes indicated that she had talked with Nettie Barnes, that she learned that Reggie Whitaker was the State Farm contact, and that she could fax the letter to him at that number. Rodgers testified that on September 10, 2001, she- sent a fax dated September 7, 2001, to State Farm indicating that Ged-goudas wanted to know to whom to send his letter of representation. She testified that she included in the fax a copy of the accident report relating to Alexander and Sellers’s accident, which included Sellers’s name, driver’s license number, date of birth, address, Social Security number, and the location of the accident for State Farm to determine if it had insured Sellers on the date of the accident. Rodgers farther testified that she confirmed that the fax was received. She stated that she did not remember having a conversation with either Barnes or Whitaker or anybody from State Farm after she sent the fax. She stated that she did not fax a letter of representation to State Farm.

Rodgers testified that approximately six hours later, at Gedgoudas’s instruction, she sent a fax to Mike Lovelady at Alfa. The fax to Alfa included a letter of representation, indicating that Gedgoudas was representing Alexander and that Alexander was making an uninsured-motorist claim on his policy with Alfa. Rodgers testified that she would not have sent the letter to Alfa without first having learned that Sellers was not covered by a State Farm policy on the date of the accident. The following testimony was elicited:

“[Alexander’s counsel]: You answered the question earlier that there was only one other case like this that you remember and what did you mean by that, Ms. Rodgers?
“[Rodgers]: When I had called and I was told that there was no insurance or coverage on the person, that the insurance company didn’t have any name or list any of these people. And so when— after that I told Mike [Gedgoudas] about that, and he handled it.
“[Alexander’s counsel]: Do you have that specific memory that this is only one of two occasions where you were provided that information?
“[Rodgers]: Yes.
“[Alexander’s counsel]: As far as you know from looking at the records that I’ve shown you, and you’ve seen those, of course, before today, when you met with [State Farm’s counsel], correct?
“[Rodgers]: Yes, sir.
“[Alexander’s counsel]: Did you speak with Mr. Whitaker on July 27, 2001, when you made that Post-it note from what you recorded?
“[Rodgers]: Yes, I would have.
“[Alexander’s counsel]: At least you got Nettie’s name somehow because that’s who you addressed the fax to and her name is included on the Post-it note, correct?
“[Rodgers]: Yes.
“[Alexander’s counsel]: Is there any need — were you trained that there was any need to send the letter of representation to an insurance company if you were told and advised that that insurance company does not insure the particular person you’re calling about?
“[Rodgers]: No, I wouldn’t have sent a letter.
“[Alexander’s counsel]: It would have been useless, wouldn’t it?
“[Rodgers]: Yes, sir.
“[Alexander’s counsel]: If you received information that the insurance company that you contacted does not insure a particular individual, there would have been no need to send a letter of representation?
“[Rodgers]: Correct.”

At the close of Alexander’s evidence and again after the jury rendered its verdict, State Farm and Whitaker moved for a judgment as a matter of law on the fraud claim, arguing, among other things, that Alexander had failed to present substantial evidence of the elements of misrepresentation. The trial court denied the motions. State Farm and Whitaker appeal.

Standard of Review

“In Waddell & Reed, Inc. v. United Investors Life Insurance Co., 875 So.2d 1143 (Ala.2003), this Court stated the standard of review applicable to a trial court’s ruling on a motion for a judgment as a matter of law (‘JML’):
“ “When reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a JML. Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. The nonmovant must have presented substantial evidence in order to withstand a motion for a JML. A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw....’

875 So.2d at 1152 (citations omitted).”

City of Crossville v. Haynes, 925 So.2d 944, 950 (Ala.2005). Additionally, “[a] judgment as a matter of law is proper ‘ ‘only where there is a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ’ and the moving party is entitled to [a] judgment as a matter of law.’” Floyd v. Broughton, 664 So.2d 897 (Ala.1995).” Locklear Dodge City, Inc. v. Kimbrell, 703 So.2d 303, 304 (Ala.1997).

Issue and Analysis

State Farm and Whitaker contend that the trial court erred in denying their motions for a judgment as a matter of law because, they say, Alexander did not present substantial evidence of a misrepresentation by State Farm so as to support his claim of fraud. Specifically, State Farm and Whitaker argue that Alexander did not present substantial evidence indicating that State Farm informed Rodgers that at the time of the accident with Alexander Sellers was not covered by a State Farm insurance policy.

In order to withstand a motion for a JML on his fraudulent-misrepresentation claim, Alexander was required to present substantial evidence indicating (1) that State Farm, through Whitaker, misrepresented to him that Sellers was not covered by a State Farm policy at the time of the accident, (2) that State Farm, through Whitaker, made the misrepresentation willfully to deceive, recklessly without knowledge, or mistakenly, and (3) that he suffered damage as a proximate consequence of his reliance on State Farm’s misrepresentation. Ex parte Alfa Mut. Fire Ins. Co., 742 So.2d 1237 (Ala.1999).

It is undisputed that, at the time of the accident involving Alexander and Sellers, Sellers and the automobile she was driving were insured by State Farm under a policy issued in her parents’ name. The evidence at trial relating to whether State Farm, through Whitaker, made a misrepresentation regarding whether Sellers was covered by a State Farm policy at the time of the accident was presented through the testimony of Rodgers and Gedgoudas. Rodgers testified as to her role in the investigation in Alexander’s case and explained the meaning of the note dated July 27, 2001, and her actions in sending faxes to State Farm and Alfa on September 10, 2001. Rodgers’s testimony regarding her communication with State Farm based on her note dated July 27, 2001, does not establish that State Farm informed her that there was not in effect an insurance policy on Sellers and her automobile on the date of the accident. The note dated July 27, 2001, at most establishes that Rodgers asked whether Sellers was covered by an insur-anee policy. A statement by State Farm in response indicating that there was no coverage on July 27, 2001, would be true, because the insured automobile had been totaled, State Farm had closed its file on the accident, and no policy had ever been issued in Crystal Sellers’s name as opposed to her parents. Rodgers specifically stated that she had no memory of what discussions she actually had had with State Farm on July 27, 2001, and her testimony based on her notes simply does not establish that State Farm represented to her during that conversation that on the date of the accident, October 18, 2000, Sellers was not covered by a State Farm insurance policy. Additionally, Rodgers’s testimony about the fax she sent State Farm on September 10, 2001, does not establish that Rodgers inquired about coverage and that State Farm made a misrepresentation to her in response to her inquiry. Rodgers’s testimony about Ged-goudas’s note and the fax indicate that the purpose in contacting State Farm that day was not to confirm coverage on the date of the accident, but to advise State Farm that Gedgoudas was representing Alexander and to determine to which claims representative Gedgoudas should send his letter of representation. Neither the fax cover sheet nor Rodgers’s testimony about the fax indicates that she inquired as to coverage on that day. Furthermore, Rodgers does not recall a conversation with a State Farm represéntative after she sent the fax, nor does she recall further conversation with Gedgoudas about State Farm. Nothing in Rodgers’s testimony amounts to substantial evidence indicating that State Farm made a misrepresentation to her about its coverage of Sellers or the automobile Sellers was driving on the date of the accident.

Gedgoudas’s testimony likewise does not present substantial evidence of a misrepresentation by State Farm. Gedgoudas admitted at trial that he never personally had any conversations with anyone at State Farm during the July-September 2001 time frame and that he had relied on Rodgers to provide information about Sellers’s coverage. Gedgoudas stated that he did not recall any conversations with Rodgers about State Farm and coverage on Sellers on July 27, 2001. Although he did recall conversations with Rodgers on September 10, 2001, his testimony consists of an assumption that a misrepresentation was made based on the fact that the fax was sent to Alfa. Nothing in his testimony establishes that Rodgers asked State Farm whether Sellers was covered by a policy on the date of the accident.

The evidence presented by Alexander of misrepresentation does not satisfy the substantial-evidence test. “[Sjubstan-tial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Substantial evidence of a misrepresentation by State Farm is not presented through the testimony concerning the July 27, 2001, note. Both Gedgou-das and Rodgers acknowledge in their testimony that if they had understood that after Rodgers’s July 27, 2001, inquiry that State Farm had provided Sellers no coverage for the accident, there would have been no reason on September 10, 2001, to attempt to learn to whom at State Farm a letter of representation should be directed. Substantial evidence of a misrepresentation by State Farm on September 10, 2001, likewise is not presented, because no evidence, other than speculation and conjecture, established that an inquiry was made as to Sellers’s coverage on the date of the accident. Thus, Alexander’s fraud claim is essentially based on the assumption that someone from State Farm, after Rodgers sent the fax inquiring to whom to send the letter of representation, had a conversation with Rodgers to say there was not coverage. This assumption rests upon the fact that six hours after Rodgers sent the fax to State Farm, she faxed a letter of representation to Alfa, Alexander’s automobile-insurance carrier. Only circumstantial evidence from which various assumptions may be drawn supports Alexander’s claim of misrepresentation. Such circumstantial evidence is not substantial evidence indicating that State Farm misrepresented that it did not have an automobile-insurance policy covering Sellers and the automobile she was driving on the date of her accident with Alexander.

Because we conclude that Alexander has failed to present substantial evidence of a misrepresentation by State Farm to establish his claim of fraud, a judgment as a matter of law is warranted on this ground, and we pretermit discussion of the other issues presented by the parties.

Conclusion

Alexander failed to present substantial evidence of a misrepresentation by State Farm to support his claim of fraud; therefore, we must conclude that the trial court erred in denying State Farm and Whitaker’s motion for a judgment as a matter of law and that the trial court improperly submitted Alexander’s fraud claim against State Farm and Whitaker to the jury. We reverse the judgment, and we remand this cause for the trial court to enter a judgment as a matter of law in favor of State Farm and Whitaker.

REVERSED AND REMANDED.

NABERS, C.J., and SEE, LYONS, HARWOOD, WOODALL, SMITH, BOLIN, and PARKER, JJ., concur.

      . Gedgoudas also named Sellers as a defendant; she was subsequently dismissed by stipulation.

      . The note dated July 27, 2001, was written on a small self-adhesive note in Rodgers’s handwriting and contained the following list: “State Farm,” "Crystal Sellers,” "no policy in,” "no vehicle," "Reg [Whitaker],” a telephone number, and "7/27/01.” This note was admitted as plaintiff's exhibit 1.

      . A "Post-it” note is a small sheet of paper collected into a- notepad manufactured by the 3M Company. Each note is backed with a strip of repositionable adhesive and can be temporarily attached to documents, etc.

      .This note contained writing by.both Ged-goudas and Rodgers. The information written by Gedgoudas asked Rodgers to send a representation letter to State Farm referring to Crystal Sellers. The information written by Rodgers indicated the name of the person with whom she spoke at State Farm, Nettie Barnes, Barnes's telephone number, the name of the agent — Reggie Whitaker — and Whitaker’s facsimile transmission telephone number.

      . Nettie Barnes testified that she was Reggie Whitaker's office manager. She confirmed that both of the telephone numbers recorded on the note belonged to Whitaker's insurance agency. Barnes remembered receiving the fax from Gedgoudas.

      . Whitaker testified that he is a State Farm agent and that the Sellers family was a client of his. He stated that at the time Gedgoudas allegedly sent his fax he had worked at that office for about two years. Whitaker admitted that his file indicated that he had faxed the original papers sent by the "lawyer” to the claims agent.


author: LYONS, Justice.

text:
    The CADLE COMPANY v. David SHABANI a/k/a Aziz Shabani, and AmSouth Bank. AmSouth Bank v. The Cadle Company. David Shabani a/k/a Aziz Shabani v. The Cadle Company.
    1050039, 1050098, and 1050120.
    Supreme Court of Alabama.
    July 28, 2006.

      Jack R. Thompson, Jr., and Robert R. Kracke, Birmingham, for appellant/cross-appellee The Cadle Company.
    Douglas Corretti and Vincent G. Nelan of Corretti, Newsom & Hawkins, Birmingham, for appellee/cross-appellant David Shabani a/k/a Aziz Shabani.
    W.L. Longshore III of Longshore, Buck & Longshore, P.C., Birmingham, for ap-pellee/cross-appellant AmSouth Bank.
   LYONS, Justice.

These appeals stem from an ejectment action filed by The Cadle Company against David Shabani a/k/a Aziz M. Shabani, and AmSouth Bank.

The following facts are undisputed: On October 1, 1993, American Express Travel Related Services Co., Inc. (“AMEX”), obtained a judgment against Shabani in the amount of $63,576.85. This judgment, along with a quitclaim assignment of the judgment to Financial Support Services E, Inc., was recorded in the Jefferson Circuit Court. The judgment was further assigned to The Cadle Company in January 1999. This assignment of the judgment was recorded in the Probate Court of Jefferson County.

On March 25, 2002, Shabani acquired a deed to the real property that is the subject of this action. Shabani subsequently executed a mortgage on the property to AmSouth in the amount of $100,000; this mortgage was recorded in the Jefferson County Probate Court.

In May 2003 The Cadle Company sent a letter to the clerk of the Jefferson Circuit Court, requesting execution of the judgment on the property owned by Shabani; the execution was returned to The Cadle Company as unsuccessful. No further execution of the original judgment was attempted until March 2004, which was after October 1, 2003 — the date on which the 10-year period provided in § 6-9-211, Ala. Code 1975, for a judgment lien on the property expired. The Cadle Company never filed a notice of lis pendens before October 1, 2003. Furthermore, The Cadle Company never filed any motion with the Jefferson County Probate Court to revive the original judgment.

On or about June 28, 2004, a sheriffs sale of the property was conducted, at which time AMEX, not The Cadle Company, purchased the property for $295.80. An undated sheriffs deed was issued to AMEX; this deed was recorded in the Jefferson County Probate Court.

On September 22, 2004, The Cadle Company, while record title was in AMEX, filed an ejectment action, in which it claimed it held legal title to the property owned by Shabani and on which AmSouth held a mortgage.

On June 27, 2005, The Cadle Company filed a motion for a summary judgment, claiming that it was the owner of the subject property by virtue of the sheriffs deed. As previously noted, the sheriffs deed was issued in favor of AMEX. Shaba-ni and AmSouth subsequently filed motions for a summary judgment, in which they claimed that The Cadle Company’s judgment lien had expired, that The Cadle Company lacked standing to bring the ejectment action, and that The Cadle Company lacked the authority to conduct business in the State of Alabama.

Following a hearing, the trial court granted the motions for summary judgment filed by Shabani and AmSouth and denied the motion for summary judgment filed by The Cadle Company. Specifically, the trial court concluded that the judgment lien had expired on October 1, 2003, and that the subsequent execution on the judgment by holding the sheriffs sale was void. The trial court refused to rule on the other grounds asserted by Shabani and Am-South in their motions for summary judgment, noting:

“The court does not rule on [Shabani and AmSouth’s] other grounds for summary judgment including the failure of [The Cadle Company], a foreign corporation, to be qualified to do business in the State of Alabama ..., and [The Ca-dle Company’s] lack of standing to bring this ejectment action (since the Sheriffs Deed is in the name of [AMEX]), as the court believes that these issues are not dispositive in this case.
“The court therefore bases its granting of the defendants’ motions for summary judgment on the [AmSouth Bank v. Bischoff, 678 So.2d 1102 (Ala.Civ.App.1995) ] case. The effect of the court’s ruling is to hold that defendant Shabani owns the subject property subject to the mortgage lien of defendant AmSouth Bank.”

The Cadle Company appeals from the final judgment in favor of Shabani and AmSouth. Shabani and AmSouth cross-appeal.

On our own motion, we vacate the trial court’s judgment because we conclude that The Cadle Company lacked standing to bring the ejectment action. In order to maintain an action for ejectment, a plaintiff must allege either possession or legal title, and the “action must be commenced in the name of the real owner of the land or in the name of the person entitled to possession thereof_” § 6-6-280, Ala.Code 1975; see Morris v. Yancey, 267 Ala. 657, 659, 104 So.2d 553, 555 (1958)(“to authorize the recovery by the plaintiff, it must be made to appear by the evidence that plaintiff, at the commencement of the suit, had the legal title to the land sued for”); Douglass v. Jones, 628 So.2d 940, 941 (Ala.Civ.App.l993)(benefi-ciary of will lacked standing to maintain ejectment because title of property remained with estate).

The ejectment complaint filed by The Cadle Company in this case alleged that it held title to the subject property. It is clear, however, from the record before us that The Cadle Company could not prove that it held title because the deed is titled to AMEX. Although The Cadle Company is undisputedly the assignee of the judgment initially taken by AMEX against Shabani, there is no evidence indicating that The Cadle Company is also the as-signee of the sheriffs deed in favor of AMEX. Although the trial court in this case acknowledged that The Cadle Company did not have title to the property, it nonetheless resolved the case on the merits — finding that the judgment hen had expired. Because The Cadle Company lacked standing to maintain the ejectment action, the trial court lacked subject-matter jurisdiction over this case, and its resulting judgment is therefore void. Carey v. Howard, 950 So.2d 1131 (Ala.2006).

Accordingly, the judgment of the trial court is vacated, and the appeal and the cross-appeals are dismissed.

JUDGMENT VACATED; APPEAL AND CROSS-APPEALS DISMISSED.

NABERS, C.J., and SEE, HARWOOD, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

      . This Court invited the parties to address the effect of the absence of evidence indicating that The Cadle Company held title to the property. The materials filed in response indicate that counsel for The Cadle Company also represent AMEX. That circumstance, however, is not sufficient to cure the jurisdictional defect.