author: EASLEY, Justice, for the Court.

text:
    PROGRESSIVE GULF INSURANCE COMPANY v. DICKERSON AND BOWEN, INC., and Travelers Indemnity Company of Illinois.
    No. 2006-CA-01250-SCT.
    Supreme Court of Mississippi.
    Oct. 4, 2007.

      Cecil Maison Heidelberg, Ridgeland, attorney for appellant.
    Jennifer W. Yarborough, Jackson, John Stephen Graham, attorneys for appellees.
    Before WALLER, P.J., EASLEY and CARLSON, JJ.
   EASLEY, Justice, for the Court.

PROCEDURAL HISTORY

¶ 1. This appeal involves litigation between two insurance companies on the issue of indemnification and stems from prior litigation which resulted in a jury verdict and a subsequent settlement. Detailed facts of the prior litigation and the jury’s verdict are not before this Court, but the prior litigation will be discussed briefly in the facts to provide insight.

¶ 2. On January 13, 1999, in the Circuit Court of Holmes County, Mississippi, Leola Cooper (Cooper) filed a lawsuit against Billy Carey (Carey) for his negligent driving which resulted in her injury. Cooper amended her complaint on December 22, 2000, adding Dickerson & Bowen, Inc. (D & B) as a defendant. On November 22, 2001, Progressive Gulf Insurance Company (Progressive) settled on behalf of Carey, leaving D & B as the sole defendant. D & B went to trial, and the jury rendered a $2.5 million verdict in favor of Cooper. D & B did not appeal the verdict. Travelers Indemnity Company of Illinois (Travelers), D & B’s liability insurance carrier, settled with Cooper for $250,000 to satisfy the judgment against D & B.

¶3. On November 20, 2003, Travelers filed suit against Progressive alleging that Progressive breached its duty to defend D & B. Travelers demanded indemnification for the settlement Travelers paid to Cooper, $250,000. Travelers moved for summary judgment and Progressive filed a cross-motion, also for summary judgment. The trial court granted Travelers’ motion for summary judgment, basing its decision on the jury’s finding that D & B was vicariously liable and, thus, insured under Carey’s Progressive policy.

¶ 4. On June 28, 2006, a final judgment was entered against Progressive for Travelers’ settlement amount of $250,000, plus costs and fees of $49,529.83, for a total of judgment of $299,529.83. Progressive now appeals to this Court.

FACTS

¶ 5. On September 11, 1998, Cooper was injured in an automobile accident when Carey’s vehicle, driven by Carey, collided with Cooper’s vehicle. On January 13, 1999, Cooper filed suit against Carey and D & B, Carey’s alleged employer. Carey was defended by Progressive. On December 22, 2000, D & B was joined as a defendant in Cooper’s amended complaint. D & B was defended by Travelers. Prior to trial, and under Carey’s commercial vehicle policy held by Progressive, Progressive settled on Carey’s behalf, leaving D & B and Cooper as the remaining litigants. Throughout the litigation, D & B maintained in its defense that Carey was an independent contractor, thereby disavowing Progressive’s responsibility. The jury returned a verdict against D & B in the amount of $2.5 million. This was announced in special verdict form submitted by D & B’s counsel with the following:

1. Was Billy Carey negligent? Yes.
2. If the Answer to No. 1 was “yes,” what was his percentage of fault? 10%.
3. 'Was Dickerson & Bowen negligent? Yes.
4. If the answer to No. 3 was “yes,” what was its percentage of fault? 90%.

¶ 6. D & B maintained throughout, and until the jury verdict was rendered against D & B, that Carey was an independent contractor. D & B never made a demand for Progressive to defend it. Before Travelers settled with Cooper, and after reviewing Carey’s policy with Progressive, Travelers sent the final judgment against D & B for $2.5 million and Cooper’s $450,000 settlement demand to Progressive. At this point, after the trial, Travelers requested that Progressive defend D & B based on its policy with Carey. On June 10, 2002, Progressive refused the request to defend D & B or indemnify Travelers. Travelers then settled the $2.5 million judgment against D & B for $250,000.

DISCUSSION

¶ 7. Progressive contends that the trial court improperly granted summary judgment in favor of Travelers. Progressive asserts that D & B waived any right of defense or indemnity from Progressive as a result of non-compliance with Progressive’s policy requirements that were a condition precedent to coverage. Progressive further argues that as a result of D & B’s lack of a timely demand to defend or to provide coverage, D & B waived any right to coverage and to indemnification of Travelers for the settlement that Travelers negotiated with Cooper. Progressive had no involvement in the representation of D & B or the settlement of the judgment against D & B.

¶ 8. In reviewing a trial court’s ruling on a motion for summary judgment, this Court conducts a de novo review and “examines all the evidentiary matters before us, including admissions in pleadings, answers to interrogatories, depositions, and affidavits.” Price v. Purdue Pharma Co., 920 So.2d 479, 483 (Miss.2006) (citing Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996), overruled in part on other grounds, Owens v. Miss. Farm Bureau Cas. Ins. Co., 910 So.2d 1065, 1074 (Miss.2005)). “The evidence must be viewed in the light most favorable to the party against whom the motion has been made.” Price, 920 So.2d at 483 (citing Berry, 669 So.2d at 70). “The moving party has the burden of demonstrating that no genuine issue of material fact exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact.” Howard v. City of Biloxi, 943 So.2d 751, 754 (Miss. App.2006) (citing City of Jackson v. Sutton, 797 So.2d 977, 979 (Miss.2001)). To avoid summary judgment, the non-movant must set forth specific facts that demonstrate a genuine issue of material fact that merits trial instead of mere unsubstantiated allegations. Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997).

¶ 9. Progressive’s policy provided the following pertinent duties in case of an accident or loss as' a condition precedent to coverage:

Notice of Accident or Loss

In the event of an accident or loss, report it to us as soon as practicable ...

Other Duties

Any person claiming coverage under this Policy must:

1. cooperate with and assist us in any matter concerning a claim or lawsuit;
2. provide any sworn or written proof of loss that we require before payment of a loss;
3. provide us with signed or recorded statements under oath as often as we may reasonably require;
4. promptly send us any and all legal papers received relating to any claim of lawsuit;
5. attend hearings and trials as we require;
9. provide us with written notice of any legal action which such person has undertaken in regard to the accident for which coverage is sought;
10. assume no obligation, make no payment or incur no expense without our consent, except at your own cost; ...

¶ 10. Carey’s policy with Progressive contained a provision that covered vicarious liability for Carey’s negligence while driving the insured vehicle. The policy defined an “insured” under number 4 of the policy as: “Any other person or organization, but only with respect to the legal liability of-that person or organization for acts or omissions of any person otherwise covered ... while driving your insured auto.”

¶ 11. However, D & B never requested any coverage from Progressive. D & B never made any demand for Progressive to defend it. Instead, D <& B was represented and defended by its general liability insurer, Travelers, at all' stages of the litigation proceedings. D & B contended that Carey was not an employee of D & B. D & B maintained, at all times, that Carey was an independent contractor. Carey had his own commercial insurance policy with Progressive. Progressive settled Cooper’s lawsuit against Carey. Once Carey was released from the litigation, Progressive had no further involvement in the litigation.

¶ 12. D & B did not settle with Cooper, maintaining that Carey was an independent contractor, and therefore, it was not liable to Cooper. Travelers represented D & B through all these proceedings and furnished D & B legal representation. Progressive was. not involved in D & B’s representation or legal decision to proceed to trial.

¶ 13. D & B made no request to Progressive for coverage until after D & B went to trial and received a jury verdict against D & B. After the verdict was rendered against D & B, Travelers did not appeal the judgment. Instead, Travelers negotiated a settlement on behalf of D & B, and Travelers paid the $250,000 to satisfy the judgment rendered against D & B.

¶ 14. Progressive was not involved in the decision to go to trial, the trial proceedings, or the decision to settle the judgment in lieu of appealing it. Provisions number 9 and 10 of Progressive’s policy specifically stated the duty of the insured to:

9. provide us with written notice of any legal action which such person has undertaken in regard to the accident for which coverage is sought; and
10. assume no obligation, make no payment or incur no expense without our consent, except at your own cost.

¶ 15. “Because the insurer must eventually pay whatever sums the insured becomes legally obligated to pay, the insurance carrier has the right to select the attorney retained to defend the claim.” Moeller, et al. v. American Guar, and Liab. Ins. Co., 707 So.2d 1062, 1068 (Miss.1996) (citing Hartford Ace. & Idem. Co. v. Foster, 528 So.2d 255, 263 (Miss.1988)). “Where the language of an insurance contract is clear and unambiguous it is not construed in favor of the insured but is construed as written.” Lowery v. Guar. Bank & Trust Co., 592 So.2d 79, 82 (Miss.1991) (citing State Farm Mut. Auto. Ins. Co. v. Gregg, 526 So.2d 554, 556 (Miss.1988); Ford v. Lamar Life Ins. Co., 513 So.2d 880 (1987)). This Court has held:

The interpretation of an insurance policy is a question of law, not one of fact. Lewis v. Allstate Ins. Co., 730 So.2d 65, 68 (Miss.1998) (citing Johnson v. Preferred Risk Auto. Ins. Co., 659 So.2d 866, 871 (Miss.1995)). Generally, under Mississippi law, when the words of an insurance policy are plain and unambiguous, the court will afford them their plain, ordinary meaning and will apply them as written. Paul Revere Life Ins. Co. v. Prince, 375 So.2d 417, 418 (Miss. 1979). Under Mississippi law, ambiguous and unclear' policy language must be resolved in favor of the non-drafting party-the insured. Harrison v. Allstate Ins. Co., 662 So.2d 1092, 1094 (Miss. 1995). Further, provisions that limit or exclude coverage are to be construed liberally in favor of the insured and most strongly against the insurer. Nationwide Mut. Ins. Co. v. Garriga, 636 So.2d 658, 662 (Miss.1994).

Noxubee County Sch. Dist. v. United Nat’l Ins. Co., 883 So.2d 1159, 1165 (Miss.2004); See also Anglin v. Gulf Guar. Life Ins. Co., 956 So.2d 853, 859 (Miss.2007).

¶ 16. Clearly, D & B did not comply with the requirements for coverage stated in Progressive’s policy. In fact, besides never making any demand on Progressive for coverage as required, at no time prior to the verdict did Travelers or D & B ever request a copy of Progressive’s policy to see if coverage was available. It was not until the judgment was already rendered against D & B that Travelers requested a copy of the Progressive policy and made a demand for Progressive to satisfy the judgment. There is no dispute that D & B did not comply with the conditions precedent specifically stated in the Progressive policy.

¶ 17. Travelers argues on appeal that the amended complaint added D & B as a party defendant solely under a theory of vicarious liability. While that is not completely incorrect, it is also not completely accurate. The amended complaint actually provided in pertinent part:

3. Defendant, Billy Carey, at all times relevant herein was in the enlargement [sic] of and/or acting as the agent of the defendant, Dickerson Bowen Company, although he claims to be an independent contractor.
4. Defendant, Dickerson Bowen Company, is liable for the negligent acts of the defendant^] Billy Carey.
10. Defendant, Dickerson Bowen Company, should be held joint and severally liable and/or vicariously liable for the damages caused by its quasi-agent, under the doctrine of responde-at superior.

(Emphasis added). Upon reading the quoted section of the amended compliant, specifically subsection 10 of the amended complaint, Cooper did not sue D & B solely under a theory of respondeat superi- or or vicarious liability as Travelers contends on appeal. In response to Cooper’s allegations, D & B maintained that Carey was an independent contractor, not its employee. D & B never had its legal counsel, which was furnished by Travelers, pursue any coverage under Carey’s policy with Progressive.

¶ 18. Here, D & B did not request or demand coverage under Carey’s policy with Progressive; however, the trial court determined that Progressive was obligated to indemnify the amount of the settlement, $250,000, and attorney’s fees and costs, $49,529.83, for a total amount of $299,529.83, negotiated and paid by Travelers’s to satisfy the $2.5 million judgment against D & B. Travelers argues that an insurer can be held liable for claims settled by its insured, if the insurer had knowledge of the claims against its insured, even if its insured never made a demand to defend. In State Farm, Mutual Automobile Insurance Co. v. Commercial Union Insurance Co., 394 So.2d 890, 893 (Miss.1981), this Court held:

Although there is authority to the contrary, we believe the better view is to hold that unless some prejudice is shown by an insured’s failure to cooperate with the insurance carrier in its investigation, such failure does not operate to forfeit the insured’s rights under the policy. See: United States Casualty Co. v. Schlein, 338 F.2d 169, [sic] (5th Cir. 1964); Clemmer v. Hartford Ins. Co., 22 Cal.3d 865, 151 Cal.Rptr. 285, 587 P.2d 1098 (1978); Ramos v. Northwestern Mutual Ins. Co., 336 So.2d 71 (Fla.1976); MFA Mutual Insurance Co. v. Sailors, 180 Neb. 201, 141 N.W.2d 846 (1966).[sic] 7A Am Jur 2d Automobile Insurance § 405 (1980); 14 G. Couch, Cyclopedia of Insurance Law § 51:112 (2d ed.1965); which states failure to cooperate cannot constitute a breach unless shown to be prejudicial; J. Apple-man, Automobile Liability Insurance 261 (1938).

(Emphasis added).

¶ 19. It is important to examine the complex set of facts in State Farm Mutual Automobile Insurance Co. in order to understand the Court’s holding. In that case, Keith Alexander operated a car furnished by Jimmy Smith Chevrolet, Inc., which maintained liability insurance on the car through Commercial Union. State Farm Mut. Auto. Ins. Co., 394 So.2d at 891. Alexander’s aunt Merle Arnold was a passenger in the car, and Alexander and his aunt were injured in the accident when the car collided with an Illinois Central Gulf Railroad Company train. Id. Alexander’s parents carried a liability policy with State Farm that covered Keith. Id. The following transpired as a result of the accident:

In May 1974 the law firm of Reeves and Reeves was employed by Keith and his parents to represent his interest for personal injuries received in the accident. Commercial Union’s adjustor, Joe King, contacted Keith by telephone a day or two following the accident and was told where he could be reached in McComb to discuss the case. Upon arriving in McComb and attempting to contact Keith, however, King was informed by Mrs. Georgia Alexander that her son had retained attorney R.B. Reeves to represent him, and that Keith would not give a statement unless his attorney was present. King then sought through attorney Reeves to get a statement, but because of Reeves procrastination his efforts were unsuccessful.
On February 14, 1975, Mrs. Merle Arnold filed suit in Cause Number 3240 in the Circuit Court of Pike County, naming Keith, his parents, the Illinois Central Gulf Railroad Company and Jimmy Smith Chevrolet, Inc., as defendants.
On March 13, 1975, Keith filed suit in Cause Number 3241 of the Circuit Court of Pike County, naming the railroad company and Jimmy Smith Chevrolet, Inc. as defendants.
Both suits charged the automobile agency with negligently furnishing a defec- ■ tive car, which was a contributing cause of the accident. Jimmy Smith Chevrolet, Inc., in Cause Number 3241 filed a counterclaim against Keith for negligently operating the car, resulting in property damage to the vehicle. Commercial Union retained as counsel to defend Cause Number 3240 attorney Robert W. Brumfield of McComb. On March 10, 1975, Brumfield wrote Keith informing him he represented Commercial Union, the liability carrier , of Jimmy Smith Chevrolet, Inc., in the suit instigated against him and Jimmy Smith Chevrolet, Inc., and the insurance company might be obligated to defend him. The letter went on to state the attempt of King to contact him several times and that he had received absolutely no cooperation from him. He further stated: “I’m sure you must be aware that unless you cooperate with us in connection with this lawsuit that we will have no obligation whatever to defend you.” The letter informed Keith that court started March 17, and Brumfield would appreciate Keith’s being in his office Friday afternoon, March 14, so that he might discuss the case with Keith, as well as possible defenses. He concluded by telling Keith: “In the event you fail to cooperate with us, we will be forced to decline to defend you in the suit.” A copy of the letter was sent to State Farm’s claims superintendent.
Also on March 10, 1975, Brumfield talked with attorney R.B. Reeves. Record revelation of that conversation is limited to a letter from Brumfield to King dated March 11, 1975, stating he had talked with Reeves the day before, who told him Keith “would not cooperate in that they were filing a suit on his behalf against both Jimmy Smith Chevrolet and the Illinois Central Railroad.” The Alexanders, following institution of suit against them in Cause Number 3240, notified their insurance carrier State Farm, who called upon Commercial Union as the primary carrier to furnish a defense for Keith. Commercial Union refused to do so, on the ground Keith had failed and refused to cooperate in the defense of the suit of Merle Arnold.
Because Commercial Union refused to furnish any defense (other than Brum-field), State Farm retained the services of Wise, Carter, Child, Steen and Caraway of Jackson, who in turn associated the firm of Reeves and Reeves of McComb, to defend the declaration on behalf of Keith and his parents in Cause No. 3240, and the counterclaim of Jimmy Smith Chevrolet, Inc., in Cause No. 3241.
During the ensuing months, several demand letters were written by State Farm’s counsel to Commercial Union to defend Cause Number 3240 and the counterclaim in 3241. Commercial Union took no action whatever to defend Keith Alexander, however, taking the position that because he had refused to cooperate, he had forfeited any right under Commercial Union’s policy.
Cause Number 3241 was tried in October 1975, resulting in a verdict in favor of the defendants on the declaration, and in favor of Keith on the counterclaim. Neither side recovered anything. Mrs. Arnold the plaintiff in 3240, dismissed her suit without prejudice in April 1977. Following the conclusion of the circuit court actions State Farm instituted this action in Chancery Court of Pike County to recover from Commercial Union $ 4,970.44 in attorney’s fees and expenses incurred in the representation of the circuit court actions.
The chancellor ruled Commercial Union owed no defense in the counterclaim, but did owe a defense in the suit of Mrs. Arnold. He further ruled, however, that since the local firm of Reeves and Reeves did not separate the two causes of action in itemizing their bills so that any sum could be allocated to each, and further that the law firm of Wise, Carter, Child, Steen & Caraway failed to allocate expenses and fees for services rendered between the two actions, damages could not be allowed there, either.

State Farm Mut. Auto. Ins. Co., 394 So.2d at 891-93. This - Court affirmed the chancellor’s judgment, stating:

Insofar as any refusal of Keith to discuss the case with attorney Brumfield, who was employed by Commercial Union to defend Cause Number 3240, the situation materially changed. Following Brumfield’s March 10, 1975, conversation with Reeves on the telephone, Brumfield as well as the carrier, had notice a conflict of interest did exist, and one in which he, Brumfield, obviously could not represent both Jimmy Smith Chevrolet, Inc. and Keith.
In view of the fact Brumfield obviously could not represent Jimmy Smith Chevrolet, Inc. and Keith, the duty was upon Commercial Union to select independent counsel. It made no effort whatever to do so, although it was repeatedly called upon by counsel for State Farm to make a defense of the actions. Apparently, the position of Commercial Union was:(a) Keith had breached the policy in failing to cooperate with King and thereafter Brumfield, and following this Keith had forfeited all rights under the policy, or (b) Keith could either take Brumfield as his lawyer to represent his interest as defendant in 3240, and in defense of the counterclaim in 3241, or take nothing. Neither position has any merit.
Heretofore this Court has addressed the contractual duty of a liability insurance carrier to defend suits brought against the insured. State Farm Mutual Automobile Ins. Co. v. Allstate Ins. Co., 255 So.2d 667 (Miss.1971); Travelers Indemnity Co. v. East, 240 So.2d 277 (Miss. 1970); Travelers Insurance Co. v. General Refrigeration & Appliance Co., 218 So.2d 724 (Miss.1969). It is a serious duty, requiring a good faith effort to protect the insured’s interest in court. There is no higher ethical duty in the legal profession than complete, absolute fidelity to the interest of the client. An attorney obviously should not attempt to represent a party when he is obligated to represent an adverse interest, and a conflict of interest appears.
Because Commercial Union had a clear duty to defend, which duty State Farm as the secondary carrier fulfilled upon Commercial Union’s failure to do so, it follows State Farm is entitled to all reasonable and necessary expenses in fulfilling Commercial Union’s obligations.

State Farm Mut. Auto. Ins. Co., 394 So.2d at 894.

¶ 20. In State Farm Mutual Automobile Insurance Co. v. Universal Underwriters Insurance Co., 601 F.Supp. 286, 290 (S.D.Miss.1984), the District Court for the Southern District of Mississippi applied this Court’s holding in State Farm Mutual Automobile Insurance Co., 394 So.2d at 893-94, expanding its holding to require coverage where there was notice of the accident but a lack of a demand to defend. In Universal Underwriters Insurance Co., 601 F.Supp. at 287, an automobile operated by Nanette Johnson collided with a vehicle operated by Patricia Dianne Gray. Johnson’s automobile was owned by Joel Johnson Imported Motor Cars, Inc. (Joel Johnson). Joel Johnson maintained a liability insurance policy with Universal; State Farm had in effect an insurance policy covering Johnson. Id. Universal was notified of the accident and denied coverage on at least two occasions. Id. Gray sued Johnson; State Farm defended Johnson in the suit. Id. The court held:

In this case, the State Farm policy was issued to the driver and the Universal policy covered the owner of the vehicle and the vehicle involved in the accident. Therefore, the court concludes that Universal provided primary coverage.
Universal’s contention that State Farm acted as a volunteer and is thereby precluded from recovery is without merit. In State Farm Mutual Automobile Insurance Company v. Allstate Insurance Company, 255 So.2d 667 (Miss.1971), the Mississippi Supreme Court rejected a similar argument.
State Farm has entered into and has taken on the responsibility inherent in a solemn contract of insurance and does not fit under any definition of volunteer. See Id. at 669.
Having determined that the Universal policy provided primary coverage, the court concludes that the issue for determination is similar to the one faced by the Mississippi Supreme Court in State Farm Mutual Automobile Insurance Company v. Commercial Union Insurance Company, 394 So.2d 890 (Miss.1981). In that case, Keith Alexander was involved in an accident while driving a car owned by Jimmy Smith Chevrolet, Inc. Alexander’s parents maintained an automobile liability insurance policy with State Farm and Jimmy Smith Chevrolet was insured by Commercial Union. Two suits were filed: one by Alexander’s passenger against Alexander, his parents, Illinois Central Gulf Railroad and Jimmy Smith Chevrolet; the other by Alexander against the railroad and Jimmy Smith Chevrolet. A counterclaim was brought against Alexander in the suit in which he was the plaintiff. Both Alexander and Commercial Union employed attorneys. Alexander refused to cooperate with Commercial Union’s attorney or adjusters. A jury returned a verdict for the defendant in Alexander’s case and the suit brought by the passenger was dismissed without prejudice.
The Mississippi Supreme Court acknowledged an insured’s duty to cooperate with a carrier’s investigation but held that, without a showing of prejudice to Commercial Union, the insured’s rights under the policy were not forfeited. Id. at 893. The court affirmed the chancellor’s holding that Commercial Union owed Alexander a defense in the suit brought by Alexander’s passenger but not for the counterclaim in the other suit. The Supreme Court stated:
Because Commercial Union had a clear duty to defend which duty State Farm as the secondary carrier fulfilled upon Commercial Union’s failure to do so, it follows State Farm is entitled to all reasonable and necessary expenses in fulfilling Commercial Union’s obligations.” [sic]
Id. at 894.
The court awarded State Farm the attorneys’ fees paid for defense of the insured.
Universal would contend that the State Farm v. Commercial Union case is not dispositive because Universal asserts that it received no demand to defend. This court finds, however, that Universal’s notice of the accident and of its responsibility under Mississippi law to defend was sufficient to impose liability on Universal.
State Farm’s affidavit does not separate its expenditures for these claims from the claim barred from review by this court. Since the court is without evidence of State Farm’s “reasonable and necessary expenses in fulfilling [Universal’s] obligations,” State Farm v. Commercial Union, 394 So.2d at 894, the amount in which Universal is liable to State Farm remains a question of fact. Therefore, this court finds that Universal is liable to State Farm for the reasonable and necessary expenses incurred in defense and settlement and payment of the judgment relating to personal and property damage to Gray arising from the automobile accident with Nanette Johnson.

Universal Underwriters Ins. Co., 601 F.Supp. at 290-91 (emphasis added).

¶ 21. In Jones v. Southern Marine & Aviation Underwriters, Inc., 888 F.2d 358, 359 (5th Cir.1989), plaintiffs sued Tomlin-son Interests, Inc., and other defendants in connection with an above-ground blowout. Tomlinson had comprehensive general liability coverage issued by Hartford Accident and Indemnity Company and Hartford Casualty Insurance Company. Id. Tomlinson also had coverage for controlling a blowout under two certificates of insurance, subscribed by Underwriter, Lloyd’s of London. Id. The damages were covered under these certificates. Id.

¶ 22. After trial began, a settlement was reached, without the consent or involvement of Underwriters, in the amount of $1,665,283 plus interest. Jones, 888 F.2d at 360. Hartford paid its policy limits toward the satisfaction of the judgment, leaving $600,000 unpaid. Id. Plaintiffs filed a suggestion of garnishment against Underwriters for the outstanding balance. Id. The United States Court of Appeals for the Fifth Circuit considered whether Underwriters’s lack of consent to the settlement and lack of knowledge of the settlement negotiations as required in the policy relieved Underwriters of liability, stating:

It is undisputed that, contrary to this provision’s requirement, Underwriters did not consent to the agreed judgment. Neither did Underwriters participate in settlement negotiations. Plaintiffs’ list of the persons who negotiated the agreed judgment confirms Underwriters’ absence. In fact, neither Tomlinson nor Hartford ever notified Underwriters that settlement negotiations were being held, nor did Tomlinson ever seek Underwriters’ consent before the settlement was executed and the agreed judgment was entered. Rather, Plaintiffs pursued the limits of coverage under Hartford’s policies.
Generally, when an insured makes a settlement without the insurer’s previous consent as required by the policy, the insured is not entitled to reimbursement from the insurer because the insured has breached a condition of coverage. See 7C J. Appleman, Insurance Law and Practice 4714 at 521 (1979). Therefore, by the very terms of the insurance certificates, Tomlinson’s failure to obtain the participation and consent of Underwriters in the negotiation and execution of the agreed judgment would appear to release Underwriters from any liability under the agreed judgment.

Jones, 888 F)2d at 361 (emphasis added).

¶ 23. In Jones, _ the Plaintiffs further argued that Tomlinson did not have to formally tender a demand to defend to Underwriters or make a claim under the certificates for Underwriters to be-liable for the agreed judgment. Jones, 888 F.2d at 364. The court considered the argument and held:

Tomlinson never specifically demanded or requested that Underwriters provide a defense in the state court action. Under the law of Mississippi, an insurer upon whom no demand to defend was made nevertheless can be held liable for claims settled by its insured, if the insurer had notice of the event potentially within policy coverage and of its legal responsibility to defend. State Farm Mut. Auto. Ins. Co. v. Universal Underwriters Ins. Co., 601 F.Supp. 286, 290 (S.D.Miss.1984) (insurer twice denied coverage to insured). It is undisputed that Underwriters had notice of the state court action against Tomlinson and even had a legal representative present at trial and at the pretrial conference. Plaintiffs urge that Underwriters’ presence relieved Tomlin-son of any duty of formal demand and that it is enough to show a breach of Underwriters’ duty to defend.
Although Underwriters were fully aware of the state court action, they did not have notice of any legal responsibility to defend. Hartford conducted the entire defense. Neither Tomlinson nor Plaintiffs ever sought coverage or a defense from Underwriters for Plaintiffs’ claims in the state court action. Instead, Tomlinson directed all of Plaintiffs’ claims to Hartford. The summary judgment evidence shows that Tomlinson took the position in the state court action that only the Hartford policies covered Plaintiffs’ claims. Underwriters’ presence at the pretrial conference and the trial indicates that they were aware their coverage might be implicated; however, their interest in following the ongoing proceedings does not imply an unwillingness to defend. Plaintiffs do not show how the presence of Underwriters at the trial obliged them to defend or made them liable under a settlement.

Jones, 888 F.2d at 364 (emphasis added). The Fifth Circuit focused its holding on the fact that Tomlinson was represented by Hartford and took the position that Hartford’s policies covered the defense, pointing out that Tomlinson never made a demand for defense or requested coverage from Underwriters. The factual situation in Jones is similar to the case at hand.

¶ 24. Here, D & B relied upon the legal representation provided by Travelers. Neither D & B nor Travelers ever demanded that Progressive defend D & B. The first demand for coverage from Progressive came from Travelers after the jury returned a verdict against D & B and Cooper made a settlement demand to satisfy the judgment. Travelers, as D & B’s liability insurance company, selected and retained D & B’s legal representation. D & B maintained at all times that Carey was not employed by D & B. Carey also maintained that he was an independent contractor, not an employee of D & B. Carey did not attempt to shift liability to D & B. Cooper’s amended complaint states that Carey maintained he was an independent contractor. Therefore, both Carey and D & B asserted that D & B was not vicariously liable to Cooper for any act of negligence on the part of Carey.

¶ 25. Following the approach in Jones, we reverse the judgment of the trial court. Jones, 888 F.2d at 364. D & B chose its theory of defense, maintaining that Carey was an independent contractor, and chose to seek coverage and representation under its liability insurer, Travelers. Based on Carey’s and D & B’s assertions that Carey was not an employee of D & B, Progressive properly relied on Travelers’ representation and coverage of D & B. Even on appeal, Travelers does not maintain that Carey was an employee of D & B. Because the jury failed to agree with D & B’s chosen theory of defense, the jury’s verdict does not retroactively obligate Progressive to indemnify Travelers.

CONCLUSION

¶ 26. Accordingly, we reverse the judgment of the Holmes County Circuit Court granting Travelers Indemnity Company of Illinois’ motion for summary judgment and render judgment in favor of Progressive Gulf Insurance Company.

¶ 27. REVERSED AND RENDERED.

SMITH, C.J., WALLER AND DIAZ, P.JJ., CARLSON, DICKINSON AND LAMAR, JJ., CONCUR. RANDOLPH, J., CONCURS IN PART AND IN RESULT. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . The record in this appeal does not contain a complete record of the prior litigation, Cooper v. Carey, Dickerson Bowen Co., and John Does I-V, civil action no. 99-0006, Circuit Court of Holmes County, Mississippi.


source: Caselaw Access Project

author: RANDOLPH, Justice,

license: Public Domain

text:
    Monica Lyn JUAREZ and James David Larabel v. STATE of Mississippi.
    No. 2006-KA-01475-SCT.
    Supreme Court of Mississippi.
    Oct. 4, 2007.

      Edmund J. Phillips, Jr., attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before DIAZ, P.J., CARLSON and RANDOLPH, JJ.
   RANDOLPH, Justice,

for the Court.

¶ 1. Upon arriving at the apartment of Monica Lyn Juarez and James David Lar-abel, in response to a 911 call, officers from the Philadelphia Police Department smelled the scent of marijuana and saw a small amount of a “green, leafy substance” in a green tray lying in plain view. After procuring a search warrant, the officers found more than 200 grams of marijuana dispersed throughout the apartment. Following indictment and trial with a jury verdict of guilty, Juarez and Larabel were sentenced by the Circuit Court of Neshoba County. From that judgment proceeds this appeal.

FACTS

¶2. On April 26, 2005, Officer Patrick Mize of the Philadelphia Police Department was dispatched to 581 Center Avenue, Apartment # 5, in response to a 911 call. Specifically, Mize testified that “[sjomeone called 911 and then hung up.” Upon arriving at the apartment complex, Mize was joined by Officer Cliff Moore. Mize proceeded to knock on the front door and Juarez answered. According to Mize, “[ojnce she opened the door, I stepped inside ... the entrance way in the living room. I noticed ... [Larabel] ... was running from the bathroom to the door where I was.” According to the police report and Moore, Juarez and Larabel were both standing at the door when it was opened, and Larabel was “sweating, out of breath, real nervous acting.” Mize testified that “[a]s soon as I entered the residence, I noticed on the right hand side on the table was some High Times magazines[,]” and he also “smelled a very strong odor of marijuana.” “We asked [Larabel] if everything was all right. He said yeah, they just got in a verbal confrontation about some keys[,]” testified Moore. In accordance with department policy, Juarez and Larabel were then separated and interviewed individually to ensure no present threat existed. Mize interviewed Juarez two to three feet inside the apartment and Moore interviewed Lar-abel on the balcony. While interviewing Juarez, Mize noticed, in plain view, a green tray on the table along the back wall containing “a green, leafy substance which [he] believed to be marijuana[.]” After informing Moore of the green tray and its alleged contents, Mize contacted Chief Narcotics Officer Neal Higgason.

¶ 3. Higgason testified that when he arrived, Mize and Moore “pointed out a green tray with a green leafy substance on it.” Following inspection, Higgason believed the substance was marijuana. Hig-gason then asked Juarez and Larabel “for consent to search, the apartment[,]” which both refused. Before leaving to procure a search warrant, Higgason instructed Moore “to secure their apartment and not let anyone enter or leave the premises[,]” and instructed Mize “to transport the two to the county jail for a misdemeanor possession of marijuana charge.”

¶ 4. Subsequently, Municipal Judge Donnie Atkins issued a search warrant to Hig-gason. According to Higgason, when he returned to the apartment Moore was still securing it and Mize had just returned. The three officers then proceeded to search the apartment. In addition to the 0.2 grams of marijuana in the green tray, Higgason found a Ziploc bag containing three smaller bags of marijuana, collectively weighing 163.7 grams, under the bathroom cabinet, and Moore discovered a bag containing 45.7 grams of marijuana in the kitchen cabinet.

¶ 5. Following the search, Higgason interviewed Juarez and Larabel individually. Neither of these interviews was videotaped. At trial, Higgason testified that he had videotaped one interview in the past. When asked by counsel for Juarez and Larabel if “the reason that you no longer video tape interviews [is] because you’ve been instructed not to[,]” the State objected. The State’s objection was sustained. In their separate interviews, both Juarez and Larabel gave written statements in which they alleged that the retrieved marijuana belonged to “Bruce.”

¶ 6. On January 4, 2006, Juarez and Larabel were indicted for possession of marijuana “in an amount of more than 30 grams but less than 250 grams, in Nesho-ba County, Mississippi, contrary to and in violation of Section 41-29-139(c)(2)(C), Miss.Code Ann. (1972).... ” The jury trial commenced on August 23, 2006. At trial, Juarez and Larabel sought to suppress the State’s exhibits arguing that:

the search warrant is not proper based on the manner in which Mize and Moore obtained what they’re alleging is evidence, being that they improperly were in the apartment. And secondly, ... any fruit from the search warrant would be tainted in that someone, according to the testimony of Ms. Dawn Swain, was in this apartment at a time when, according to officers, they had secured the apartment.

Following a suppression hearing, the circuit court concluded that:

there’s some different testimony between the officers but nothing material, or substantive, therefore, I feel that the [S]tate has sufficiently proven ... the obtaining of the search. The court is of the opinion that Judge Atkins acted properly in issuing the warrant pursuant to the underlying facts and circumstances presented to him by Officer Hig-gason. Your objection is overruled.... [E]videnee of the search will be admitted.

(Emphasis added). Thereafter, the jury found Juarez and Larabel guilty.

¶ 7. On August 24, 2006, following the sentencing hearing, the judgment of the circuit court was entered. Juarez was “sentenced to serve a term of two years in the custody of the Mississippi Department of Corrections [ (“MDOC”) ], upon serving one year the remaining year is suspended, and ... placed on three years post release supervision, pay a fine of fifteen hundred dollars and all costs of court.” Larabel was “sentenced to serve a term of three years in the custody of the [MDOC], pay a fine of fifteen hundred dollars and all costs of court.” After the “Motion[s] for a New Trial or Other Relief’ of Juarez and Larabel were overruled by the circuit court, each timely filed a notice of appeal.

ISSUES

¶ 8. This Court will consider:

(1) Whether the circuit court erred in sustaining the State’s objections to the cross-examination of Officer Higgason.
(2) Whether the circuit court erred in denying the motion to suppress the results of the search of the apartment of Juarez and Larabel.

ANALYSIS

I. Whether the circuit court erred in sustaining the State’s objections to the cross-examination of Officer Hig-gason.

¶ 9. “The standard of review regarding admission [or exclusion] of evidence is abuse of discretion. Where error involves the admission or exclusion of evidence, this Court ‘will not reverse unless the error adversely affects a substantial right of a party.’ Whitten v. Cox, 799 So.2d 1, 13 (Miss.2000) (quoting Floyd v. City of Crystal Springs, 749 So.2d 110, 113 (Miss.1999)) (emphasis added). See also Jefferson v. State, 818 So.2d 1099, 1104 (Miss.2002) (quoting Hughes v. State, 735 So.2d 238, 270 (Miss.1999) (citations omitted)) (“[u]nless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this ruling.”) (emphasis added). “All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Mississippi, or by these rules. Evidence which is not relevant is not admissible.” Miss. R. Evid. 402. “Relevant evidence” is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Miss. R. Evid. 401. “Evidence is relevant if it has any tendency to prove a consequential fact.” Whitten, 799 So.2d at 15 (emphasis added).

¶ 10. Juarez and Larabel argue that the circuit court committed reversible error in sustaining the State’s objection to their cross-examination of Higgason' regarding whether he had been instructed not to videotape interviews. They argue that “[cjertainly [their] inquiries covered relevant subject matter.” We do not agree. In Juarez and Larabel’s written statements, they both alleged that the marijuana belonged to “Bruce.” Since there is no dispute regarding the substance of either the interviews or the written statements, the issue of videotaping the interviews is irrelevant to guilt or innocence here. No substantial right belonging to Juarez or Larabel was affected. Therefore, this Court concludes that the circuit court did not abuse its discretion in sustaining the State’s objection.

II. Whether the circuit court erred in denying the motion to suppress the results of the search of the apartment of Juarez and Larabel.

¶ 11. The State insists that “this issue is barred from consideration because [Juarez and Larabel] failed to submit the search warrant affidavit with the record.” According to the State, “[w]ithout the affidavit, this honorable Court cannot determine whether a false statement was in fact made nor whether the allegedly false statement was necessary to the finding of probable cause.” (Emphasis added).

¶ 12. “[T]here is a presumption that the judgment of the trial court is correct and the burden is on the Appellant to demonstrate some reversible error to this Court.” Acker v. State, 797 So.2d 966, 971 (Miss.2001) (quoting Branch v. State, 347 So.2d 957, 958 (Miss.1977)). “We have stated many times that it is the duty of the appellant to present a record of trial which is sufficient to support his assignments of error.” Acker, 797 So.2d at 971 (quoting Peterson v. State, 518 So.2d 632, 638 (Miss.1987) (citations omitted)). In Acker, this Court found that “[t]here is no hearing transcript, and therefore no basis to support Acker’s claim that the trial court erroneously denied her motion. Because of this fact, the presumption that the judgment of the trial court was correct must prevail.” Id.

¶ 13. The search warrant affidavit is absent from the record before us. Without the contested affidavit, this Court is unable to determine whether probable cause existed vel non. See Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684-85, 57 L.Ed.2d 667, 682 (1978). As Juarez and Larabel have the duty “to present a record of trial which is sufficient to support [their] assignments of error[,]” Acker, 797 So.2d at 971, and there is a “presumption that the judgment of the trial court was correct[,]” id., this Court finds that the absence of the search warrant affidavit requires affirming the circuit court’s denial of the motion to suppress.

CONCLUSION

¶ 14. Accordingly, this Court affirms the final judgment and sentence of the Circuit Court of Neshoba County as to Juarez and Larabel.

¶ 15. MONICA LYN JUAREZ: CONVICTION OF POSSESSION OF MORE THAN 30 GRAMS OF MARIJUANA AND SENTENCE OF TWO (2) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. UPON SERVING ONE (1) YEAR THE REMAINING YEAR IS SUSPENDED, AND JUAREZ IS PLACED ON THREE (3) YEARS POST RELEASE SUPERVISION, PAY A FINE OF FIFTEEN HUNDRED DOLLARS AND ALL COSTS OF COURT.

JAMES DAVID LARABEL: CONVICTION OF POSSESSION OF MORE THAN 30 GRAMS OF MARIJUANA AND, SENTENCE OF THREE (3) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, PAY A FINE OF FIFTEEN HUNDRED DOLLARS AND ALL COSTS OF COURT, AFFIRMED.

SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON,

DICKINSON AND LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.

      . Juarez and Larabel were indicted under Mississippi Code Annotated Section 41-29-139(c)(2)(C) (Rev.2005) for possession of more than 30 grams but less than 250 grams of marijuana.

      . Higgason was unaware of whether Moore "sat inside the apartment or ... stood at the door.” According to Mize, "the apartment was shut and [Moore] stood by the door until we got back.” Moore testified that while the front door was left unlocked, he "stayed in [his] patrol car where [he] had a visual on the front door[,]” and that no one entered or left the apartment during that time.
      By contrast, Dawn Swain, the resident of the apartment directly below the apartment of Juarez and Larabel, testified at the suppression hearing that Moore took them to jail and Mize stayed behind. Furthermore, she averred that approximately five minutes after Moore and Higgason left, Mize re-entered the apartment. While Swain did not see Mize enter the apartment, she "could hear him upstairs.” Although she acknowledged that there were two additional occupied apartments upstairs, Swain insisted that the walking she heard came from the apartment of Juarez and Larabel as "it was located right above' [her] apartment.” Swain was uncertain of how long Mize remained in the apartment, as she did not see him exit.
      Before the jury, however, Swain testified that Mize took Juarez and Larabel to jail, while Moore and Higgáson remained. She alleged that Higgason walked up the stairs to their apartment and she heard him walking around. Swain was uncertain of how long Higgason remained in the apartment, as she did not see him exit.

      . Higgason admitted at trial that the underlying facts and circumstances presented to Judge Atkins stated that he had taken possession of the marijuana evidence in the green tray, placing it in an evidence bag. Higgason testified that it was actually during the subsequent search that he "processed the [marijuana in the green tray] at the scene.”

      . In total, 209.6 grams of marijuana were retrieved from the apartment.

      . The circuit judge entered this sentence in light of the fact that Juarez was pregnant, had no felony or misdemeanor record, and had good work experience.

      . The circuit judge entered the maximum sentence because Larabel had "a criminal record, residential burglary, cocaine possession, all felonies ... [and] a misdemeanor record of marijuana possession and disorderly conduct in Colorado.”

      .Each claiming that "[e]rror was committed in the failure to grant the Defendant's Motion to Suppress all Exhibits at trial and for a mistrial upon admission of each such exhibit.”


text:
    Willie Albert LETT a/k/a Chubby v. STATE of Mississippi.
    No. 2006-KA-01281-SCT.
    Supreme Court of Mississippi.
    Oct. 4, 2007.

      George S. Shaddock, Pascagoula, attorney for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before DIAZ, P.J., CARLSON and RANDOLPH, JJ.
   RANDOLPH, Justice,

for the Court.

¶ 1. In 2004, Willie Albert Lett was indicted in four separate causes. Thereafter, Lett and the State reached an agreement “to consolidate all of the ... [ijndictments into one plea with a sentence recommendation.” Instead of sentencing Lett according to the State’s recommendation, the circuit judge deferred sentencing and “order[ed] a pre-sentence investigation report.” At the sentencing hearing, the circuit court imposed a sentence exceeding the State’s recommendation and overruled Lett’s ore terms motion to withdraw his guilty plea. Lett now seeks relief from this Court.

FACTS

¶ 2. In May 2004, Lett was indicted in Cause No. 2004-10,133(1) on counts of aggravated assault, kidnaping, and obstruction of justice. That same day, Lett was also indicted in Cause No. 2004-10,134(2) for possession of a weapon by a convicted felon. In August 2004, Lett was eo-in-dicted with another individual in Cause No. 2004-10,479(2) on counts of armed robbery and grand larceny. Finally, on October 26, 2004, Lett was indicted with Michelle Thawley in Cause No. 2004-10,-860(2) for “feloniously and burglariously break[ing] and enter[ing] the dwelling house of Thomas Thawley ... with the intent to steal therein” on June 12, 2004.

¶ 3. Thereafter, an agreement was reached to consolidate all of the above indictments into one plea with a sentence recommendation. Lett entered a “Petition to Plead Guilty” to Cause Numbers 2004-10,133(1); 2004-10,134(2); 2004-10,479(2); and 2004-10,860(2). Notably, the petition provided that:

I ... do answer the following questions in the presence of my attorney, George Shaddock, in order to show and demonstrate to the court that I am knowingly, intelligently, understandingly, freely and voluntarily entering my plea of guilty to the crime of possession of firearm, aggravated assault, burglary, grand larceny, armed robbery, kidnap-ing, [and] obstruction of justice in the above styled and numbered cause of this court.

(Emphasis added). The petition also included the following questions and responses:

Do you understand the charge against you? Yes. Do you know and understand the maximum sentence for this crime is life? ...
Has anyone promised you anything in order to get you to plead guilty? No. Has anyone told you that it would be better for you to plead guilty, that the court would be lighter on you, or anything like those statements? No. ... Do you understand that, if a jury convicted you, you would have a right to appeal to our Supreme Court, but if you plead guilty, you are waiving your right to appeal your case? Yes. ...
Do you understand that, [i]f your plea of guilty is accepted, the only thing remaining for the court to do is to sentence you, and that sentence could be to the maximum sentence provided by law? ... Do you understand that the court is not bound by any recommendation the State may make, but the court will determine what your sentence shall be, and that sentence could be the maximum sentence provided by law? Yes. ...
[I]s it still your desire to enter a plea of guilty to the crime with which you are charged? Yes.

(Emphasis added).

¶ 4. At the plea hearing, Lett testified that he understood that by pleading guilty he was waiving his right to appeal to this Court. The State then made the following recommendation to the circuit court:

[w]ith regard to 04-10,133, the State will recommend on Counts I and II, 15 years in the Mississippi Department of Corrections [ (“MDOC”) ], with 5 to serve, 10 suspended, 5 years Post Release Supervision. On Count III, the State will recommend 5 years in the [MDOC].[] In 04-10,134, the State will recommend — I believe the maximum is 3 years, so it would be 3 years in the [MDOC]. In 04-10,479, in Count I, the State will recommend 15 years in the [MDOC], with 5 to serve, 10 suspended, 5 years Post Release Supervision, and that would be day-for-day time.... On Count II, the State would recommend 5 years in the [MDOC].[] And in 04-10,-860, the State will recommend 15 years in the [MDOC], with 5 to serve, 10 suspended, 5 years Post Release Supervision, [] with all the counts and all the indictments to run concurrent with each other, a $2,000 fine total, restitution, if any, and we would ask for two weeks to determine restitution and court costs.

According to the State:

the reason we made the recommendation ... is that on the most serious offense, it was the desire of the victim really not to be involved in the case ... they really do not want to have to come down here and do so unless we make them, and that was why I made this recommendation....

Lett was then asked by the circuit judge if he “understood that I’m not bound by the recommendation of the State, and that I could sentence you to the maximum provided by law?” Lett testified that he understood. The circuit court then accepted the plea, finding it was “freely, voluntarily and intelligently made.” However, instead of sentencing Lett that day, the circuit court deferred sentencing and “order[ed] a pre-sentence' investigation report.”

¶ 5. At the sentencing hearing on June 2, 2006, after reviewing the pre-sentence investigation report, the judge astutely observed “[t]here is no question that [Lett] has one of the worst criminal records that I’ve ever seen. He has engaged in witness intimidation, and the destruction of more young lives.” Based on these findings, the trial court imposed a sentence exceeding the State’s recommendation. Specifically, the court ordered:

[Lett] is sentenced to Fifteen (15) Years to serve and Five (5) Years on Post Release Supervision on cause number 2004-10,133 Count I. Count II, [Lett] is sentenced to Fifteen (15) Years to serve and Five (5)[Y]ears on Post Release Supervision, and Count III is sentenced to Two (2) Years in the custody of the Mississippi Department of Corrections. On cause number 2004-10,134 [Lett] is sentenced to Three (3) Years in the custody of the Mississippi Department of Corrections. In cause number 2004-10,-479, Count I [Lett] is sentenced to Fifteen (15) Years, DAY FOR DAY, and Five (5) Years on Post Release Supervision and Count II [Lett] is sentenced to Five (5) Years in the custody of the Mississippi Department of Corrections. In cause number 2004-10,860 [Lett] is sentenced to Fifteen (15)[Y]ears in the custody of the Mississippi Department of Corrections, and Five (5) Years on Post Release Supervision.[] All Causes and Counts to run Concurrent. [Lett] is remanded to the Jackson County Sheriff’s Department.

On July 27, 2006, Lett filed notices of appeal in both the circuit court and this Court.

ISSUES

¶ 6. The following issues were raised on appeal:

(1) Whether the guilty plea of Lett was knowingly and voluntarily given.
(2) Whether the trial judge abused his discretion in ordering a pre-sentence investigation, denying Lett’s motion to withdraw his guilty plea, and not following the recommendation of the State as to the sentence.

The State asserts that Lett’s appeal is procedurally barred by virtue of (a) his guilty plea and (b) its untimely filing.

ANALYSIS

(A) Procedural bar Miss. Code Ann. § 99-35-101

¶ 7. Mississippi Code Annotated Section 99-35-101 states, “[a]ny person convicted of an offense in a circuit court may appeal to the supreme court, provided, however, an appeal from the circuit court to the supreme court shall not be allowed in any case where the defendant enters a plea of guilty.” Miss.Code Ann. § 99-35-101 (Rev.2007) (emphasis added).

In Trotter v. State, 554 So.2d 313 (Miss.1989), this Court provided:

[1]n Burns v. State, 344 So.2d 1189 (Miss.1977), this Court implied that an appeal from a sentence imposed pursuant to a guilty plea is not equivalent to an appeal from the guilty plea itself. In Bums, an appeal from denial of a habe-as corpus petition challenging the legality of a sentence imposed subsequent to a guilty plea was treated by this Court as a direct appeal. While the Court acknowledged the language of § 99-35-101, the Court stated: “We do not deem the present case as an appeal from a guilty plea.” Burns, 344 So.2d at 1190.

Trotter, 554 So.2d at 315. See also Johnson v. State, 925 So.2d 86, 88 n. 1 (Miss.2006) (as “Johnson seeks relief only from the length of the sentence imposed by the trial judge, and he in no way attacks the guilty plea itself[,] ... this Court [has] jurisdiction to consider, on direct appeal, the issue of the length of Johnson’s sentence.”); Acker v. State, 797 So.2d 966, 967 (Miss.2001) (“[t]his Court has stated that a defendant who pleads guilty can appeal from the sentence imposed.”). As such, this Court finds that pursuant to Mississippi Code Annotated Section 99-35-101, Lett possesses the right to appeal, but the right extends only to alleged errors in sentencing.

(B) Procedural bar — Mississippi Rule of Appellate Procedure J

¶ 8. The State next contends that “the judgment appealed from was signed and filed on June 2, 2006.... The notice of appeal was not filed until July 27, 2006.... Accordingly, the notice of appeal was not timely filed pursuant to M.R.A.P. 4, and this putative appeal should be dismissed pursuant to M.R.A.P. 2.”

¶ 9. Mississippi Rule of Appellate Procedure 4(a) states, in part, that:

[ejxcept as provided in Rules 4(d) and 4(e), in a civil or criminal case in which an appeal or cross-appeal is permitted by law as of right from a trial court to the Supreme Court, the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.

Miss. R.App. 4(a) (emphasis added). Mississippi Rule of Appellate Procedure 2(a)(1) provides, “[a]n appeal shall be dismissed if the notice of appeal was not timely filed pursuant to Rules ' 4 or 5.” Miss. R.App. P. 2(a)(1). In the case sub judice, the circuit court’s order was entered on June 2, 2006. We find Lett’s notice of appeal was not filed until July 27, 2006. Given that filing of Lett’s notice of appeal occurred more than “30 days after the date of entry of the judgment or order appealed from[,]” Miss. R.App. P. 4(a), this Court finds that Lett’s appeal is procedurally barred.

¶ 10. Assuming arguendo that the procedural bar did not apply, the result is the same. “This Court has held that sentencing is within the discretion of the trial court and is not subject to appellate review if it is within the limits prescribed by statute.” Wade v. State, 802 So.2d 1023, 1030 (Miss.2001) (citing Hoops v. State, 681 So.2d 521, 537 (Miss.1996)). The circuit court had the discretion to reject the State’s recommendation, see Wade, 802 So.2d at 1028, and exercised that discretion. Any argument of detrimental reliance asserted by Lett is negated by the fact that he was repeatedly informed of the circuit court’s discretion in sentencing. Additionally, Lett was informed that the maximum sentence was life imprisonment and the actual sentence imposed was well within that prescribed limit. See id. at 1030. As such, this Court further finds that there was no abuse of discretion by the learned circuit judge in sentencing Lett.

CONCLUSION

¶ 11. Based upon the aforementioned analysis, this Court affirms the final judgment and sentence of the Circuit Court of Jackson County as to Lett.

¶ 12. COUNT I IN CAUSE NO. 2004-10,133: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND FIVE (5) YEARS ON POST RELEASE SUPERVISION, WITH CONDITIONS, AFFIRMED. COUNT II IN CAUSE NO. 2004-10,133: CONVICTION OF KID-NAPING AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND FIVE (5) YEARS ON POST RELEASE SUPERVISION, WITH CONDITIONS, AFFIRMED. COUNT III IN CAUSE NO. 2004-10,133: CONVICTION OF OBSTRUCTION OF JUSTICE AND SENTENCE OF TWO (2) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. CAUSE NO. 2004-10,134: CONVICTION OF POSSESSION OF A WEAPON BY A CONVICTED FELON AND SENTENCE OF THREE (3) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT I IN CAUSE NO. 2004-10,479: CONVICTION OF ARMED ROBBERY AND SENTENCE OF FIFTEEN (15) YEARS, DAY FOR DAY, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND FIVE (5) YEARS ON POST RELEASE SUPERVISION, WITH CONDITIONS, AFFIRMED. COUNT II IN CAUSE NO. 2004-10,479: CONVICTION OF GRAND LARCENY AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. CAUSE NO. 2004-10,860: CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND FIVE (5) YEARS ON POST RELEASE SUPERVISION, WITH CONDITIONS, AFFIRMED. ALL SENTENCES IN ALL CAUSES AND COUNTS TO RUN CONCURRENTLY.

SMITH, C.J., WALLER AND DIAZ, P.JJ., and EASLEY, CARLSON, GRAVES, DICKINSON AND LAMAR, JJ., CONCUR.

      . Lett "did ... feloniously ... cause bodily injury to Michelle Thawley by a means likely to cause death or serious bodily harm with his fists by striking the said [Thawley] on the legs with a hammer or a similar type object, choking, and hitting her...."

      . Lett "did ... feloniously ... forcibly seize and confine or inveigle [Thawley] with the intent to cause the said [Thawley] to be secretly confined or imprisoned against her will....”

      . Lett "did ... feloniously, impede and abusively obstruct the administration of justice by attempting to intimidate [Thawley] from signing criminal charges on [Lett] by threatening to kill her.”

      . Lett "did ... possess a weapon, to-wit: a Arminus .22 caliber pistol, at a time when he ... had previously been convicted of a Controlled Substance, a felony ... in the Circuit Court of Jackson County, Mississippi, Cause No. 1994-10,399....”

      . Lett "did ... feloniously, take, steal and carry away from ... Tania Hester, personal property ... her purse and [$170.00] ... by putting [Hester] in fear of immediate injury to her person, by the exhibition of a deadly weapon, to-wit: a pistol....”

      . Lett "did ... feloniously take, steal, and carry away the personal property of William Hester, to-wit: a 1999 Chevy S14 truck ... of the value of [$500.00] or more....”

      . According to the State, victim Michelle Thawley "is okay with the recommendation. ...”

      . According to the State, victim Tonya Hester "is fine with the recommendation, and she said mostly she just wants them to get help for their drug addiction.” As to victim William Hester, he “indicated that he is fine with the recommendation....”

      . According to the State, the victims are Michelle Thawley’s parents and "it’s my understanding that they just want to let everything go-”

      . According to the circuit judge:
      [t]he PSI was extensive and well done ... and showed a criminal defendant with a history going back into the '70s. Crimes of violence, felonies across the City of Moss Point that were reduced to misdemeanors as a result of witness intimidation by he and his family members. It showed the degradation of young women of all colors. It showed family involvement, including his brother and his son. It showed numerous fights with law-enforcement officials in which they would try to arrest [Lett] on various charges and pit bulls were let loose and they had to be shot, and fought with [Lett].... It showed women being addicted to all types of narcotics, and then put on the street as common prostitutes.... The Court, on its own, did the sentencing. The record will also reflect that [Lett] was extensively questioned by this Court as to full knowledge of waiver of all of his rights, and that this Court was not bound by the recommendation of the State....
      At the April 12, 2006, plea hearing, Lett had admitted to being convicted of two prior felonies, aggravated assault and possession.

      . Among the conditions of Post Release Supervision, Lett was required to pay court costs, a $2,000 fine, and restitution.


author: LEE, P.J., for the Court.

text:
    Richard VADEN, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00592-COA.
    Court of Appeals of Mississippi.
    May 8, 2007.
    Rehearing Denied Oct. 2, 2007.

      Rodney A. Ray, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, P.J., BARNES and CARLTON, JJ.
   LEE, P.J., for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Richard Vaden was indicted on three counts of fondling. The three victims were three of his daughters. We note that the daughters are now adults and were unaware of the abuse upon each other until some time in 2005 at which point they came forward to the authorities. On March 23, 2006, a jury in the Noxubee County Circuit Court found Vaden guilty of two counts of fondling. Vaden was sentenced to ten years for each count with both to be served concurrently in the custody of the Mississippi Department of Corrections. Vaden filed a motion for a new trial or a judgment notwithstanding the verdict which was subsequently denied by the trial court. Aggrieved, Vaden now appeals to this Court asserting the following issues: (1) the trial court denied him a fair trial by failing to define reasonable doubt; (2) the trial court erred in admitting evidence of other alleged criminal acts that prejudiced his right to a fair trial; and (3) both of the errors above constitute reversible error.

DISCUSSION

I. DID THE TRIAL COURT DENY VADEN A FAIR TRIAL BY FAILING TO DEFINE REASONABLE DOUBT?

¶ 2. In his first issue on appeal, Vaden argues that the trial court denied him a fair trial by failing to define reasonable doubt for the jury. Vaden offered a proposed jury instruction to define the term “reasonable doubt.” The trial court denied the instruction. Our standard of review for jury instructions is as follows:

The instructions are to be read together as a whole, with no one instruction to be read alone or taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case. However, the trial judge may also properly refuse the instructions if he finds them to incorrectly state the law or to repeat a theory fairly covered in another instruction or to be without proper foundation in the evidence of the case.

Howell v. State, 860 So.2d 704, 761 (¶203) (Miss.2003).

¶3. Vaden’s proposed jury instruction was as follows:

The Court instructs the jury that you are bound, in deliberating upon this case, to give the defendant the benefit of any reasonable doubt of the defendant’s guilt that arises out of the evidence or want of evidence in this- case. There is always a reasonable doubt of the defendant’s guilt when the evidence simply makes it probable that the defendant is guilty. Mere probability of guilt will never warrant you to convict the defendant. It is only when, after examining the evidence on the whole, you are able to say on your oaths, beyond a reasonable doubt, that the defendant is guilty that the law will permit you to find him guilty. You might be able to say that you believe him to be guilty, and yet, if you are not able to say on your oaths, beyond a reasonable doubt, that he is guilty, it is your sworn duty to find the defendant “Not Guilty.”

¶ 4. Vaden acknowledges that the law in Mississippi concerning reasonable doubt instructions is well-settled. Our supreme court has repeatedly stated that .the term “reasonable doubt” defines itself and is not a proper jury instruction. Martin v. State, 854 So.2d 1004, 1009(¶ 12) (Miss. 2003); Chase v. State, 645 So.2d 829, 851 (Miss.1994); Barnes v. State, 532 So.2d 1231, 1235 (Miss.1988). Vaden would have us disregard this law and instead follow a majority of the states as well as the federal judiciary which allow a jury instruction to define reasonable doubt. Vaden cites to Judge Ishee’s concurring opinion in Lett v. State, 902 So.2d 630 (Miss.Ct.App.2005), to support his proposition. Judge Ishee, while recognizing current Mississippi law, questioned the wisdom of continuing such policy and urged the state to conform to the practice of a majority of the states as well as the federal judiciary. However, the law remains the same; thus, we cannot find that the trial court erred in denying this instruction.

¶ 5. In them entirety, the jury instructions adequately announce the law of the case. The trial court adequately instructed the jury about reasonable doubt in instruction S-24 by listing each of the elements of the offense and then stating: “If the state has failed to prove any of these elements beyond a reasonable doubt, then you shall find the Defendant not guilty in Count 1.” There was an identical instruction for the other two counts of fondling. The trial court also granted instruction D-6 which stated: “The Court instructs the jury that a reasonable doubt may arise from the whole of the evidence, the. conflict of the evidence, the lack of evidence, or the insufficiency of the evidence; but however it arises, if it arises, it is your sworn duty ■to find the defendant ‘Not Guilty.’ ”

¶ 6. This issue is without merit.

II. DID THE TRIAL COURT ERR IN ADMITTING EVIDENCE OF OTHER ALLEGED CRIMINAL ACTS THAT PREJUDICED VADEN’S RIGHT TO A FAIR TRIAL?

¶ 7. In his second issue on appeal, Vaden argues that the trial court erred in admitting evidence of other criminal acts between Vaden and the victims which occurred in another jurisdiction, specifically Clay County. Prior to trial Vaden filed a motion in limine to exclude this evidence stating that any testimony or evidence regarding acts in Clay County would be more prejudicial than probative. The trial court found the evidence to be more probative than prejudicial under Mississippi Rule of Evidence 403 and allowed the evidence to be admitted under Rule 404(b).

¶ 8. While evidence of the defendant’s prior bad acts is generally inadmissible in a criminal trial, “evidence of other crimes, wrongs, or acts is ... admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” M.R.E. 404(b). Evidence of prior bad acts between the defendant and the victim are admissible to show the defendant’s “lustful, lascivious disposition” toward the victim. Crawford v. State, 754 So.2d 1211, 1220(123) (Miss.2000). Furthermore, “the prior bad act sought to be admitted must have been committed upon the same victim that the defendant is currently on trial for having allegedly harmed.” King v. State, 857 So.2d 702, 734 (¶ 123) (Miss.2003); see Mitchell v. State, 539 So.2d 1366 (Miss.1989). Vaden was indicted in Noxubee County on three counts of fondling, each count representing a different daughter. Upon investigation it was discovered that these acts began in Clay County when the girls were younger. Vaden was also indicted in Clay County on two counts of fondling, both counts representing one daughter. Although the family lived in Clay County, they owned a lake house in Noxubee County where all three daughters testified they were fondled at some point, two on more occasions than the other. We cannot find that the trial court was in error by allowing each victim to testify as to when and where they were fondled by their father.

¶ 9. Vaden also argues that he could not offer a limiting instruction because he did not get a clear ruling from the trial court. The trial court’s ruling is clear that the prior acts of fondling were allowed into evidence to show plan and motive by Va-den. Furthermore, nowhere in the record does it show where Vaden requested a limiting instruction. See Brown v. State, 890 So.2d 901, 913(¶ 36) (Miss.2004). We are not persuaded by this argument.

III. DO THE CUMULATIVE EFFECT OF THE ERRORS REQUIRE REVERSAL?

¶ 10. Finding Vaden’s arguments to be without merit, we find no cumulative error that would necessitate a reversal. Therefore, we affirm.

¶11. THE JUDGMENT OF THE NOXUBEE COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I FONDLING AND SENTENCE OF TEN YEARS, AND COUNT II FONDLING AND SENTENCE OF TEN YEARS TO RUN CONCURRENTLY TO THE SENTENCE IN COUNT I, BOTH IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, PAY A FINE OF $1000 FOR EACH COUNT, AND UPON RELEASE ORDERED TO REGISTER AS SEX OFFENDER PURSUANT TO STATE STATUTE AND PLACED ON FIVE YEARS OF POST RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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