author: CARLTON, J.,

text:
    William Clark McNEAL, Sr. a/k/a William C. McNeal, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00284-COA.
    Court of Appeals of Mississippi.
    March 13, 2007.

      William Clark McNeal, Sr., Appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before MYERS, P.J., IRVING, BARNES and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. William Clark McNeal, Sr., pled guilty in the Harrison County Circuit Court to two counts of forcible sexual intercourse. He now challenges the validity of his plea and the effectiveness of his counsel. Finding no error, we affirm the dismissal of his motion for post-conviction relief.

FACTS

¶ 2. On January 11, 2001, a Harrison County grand jury returned a two count indictment against McNeal for the crimes of sexual battery under Mississippi Code Section 97-3-95(l)(a) and forcible sexual intercourse under Section 97-8-65. These charges related to an incident that occurred in October 2000. On August 27, 2001, McNeal was indicted on a separate charge of forcible sexual intercourse that took place in April 2000 against a different victim.

¶3. On May 18, 2002, McNeal pled guilty to both of the forcible sexual intercourse charges in the January and August indictments. The Harrison County Circuit Court followed the recommendation of the State and sentenced McNeal to twenty years on each count to run concurrently, to serve twelve years with eight suspended, and two years of post-release supervision. The sexual battery charge was retired to the files.

¶ 4. On February 17, 2005, McNeal filed a motion for post-conviction relief. The trial court dismissed his motion without a hearing. His appeal has been deflected to this Court.

DISCUSSION

1. Validity of Guilty Plea

¶ 5. McNeal argues that he was improperly induced into pleading guilty because his attorney arranged for McNeal’s parents to persuade him to take the plea agreement. He also claims that he really wanted to take his case to trial. MeNeal relies on precedent stating the constitutional requirements for a valid guilty plea. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

¶ 6. A guilty plea is valid only if it is entered into “voluntarily, knowingly, and intelligently, ‘with sufficient awareness of the relevant circumstances and likely consequences.’ ” Bradshaw v. Stumpf, 545 U.S. 175, 183, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005) (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). A guilty plea is “itself a conviction,” a confession, and a stipulation that the prosecution does not need to advance evidence of guilt. Florida v. Nixon, 543 U.S. 175, 187-88, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004) (quoting Boykin, 395 U.S. at 242-43, 89 S.Ct. 1709).

¶ 7. The record reflects that MeNeal was informed of the relevant circumstances and likely consequences of entering a guilty plea. The petition to enter his plea and the plea hearing transcript evidence that MeNeal knew the elements of the crime, the minimum and maximum sentence he could receive, the constitutional rights he was waiving, and the specific acts to which he was admitting guilt. There is even evidence in the record that MeNeal knew he would have to serve each day of his sentence and had counted the days until he would be able to see his children again.

¶ 8. McNeal’s sworn representations in his plea petition and directly to the trial judge evidence that he was entering his plea freely and voluntarily, without duress or coercion. Great weight is given to these statements made under oath. Gable v. State, 748 So.2d 703, 706 (Miss.1999). This evidence is controlling because MeNeal has failed to produce any evidence to support the current allegations. Id. The trial judge was careful to ensure that MeNeal was entering a plea on his own accord, without outside influence.

¶ 9. MeNeal claims that the trial court improperly accepted his plea and sentenced him because he was on psychotic drugs. The competency standard required for a defendant to enter a guilty plea is identical to the determination that must be made for the competency of a defendant to stand trial. Magee v. State, 752 So.2d 1100, 1102 (Miss.Ct.App.1999) (citing Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993)). That standard mandates a defendant be a person:

(1) who is able to perceive and understand the nature of the proceedings; (2) who is able to rationally communicate with his attorney about the case; (3) who is able to recall relevant facts; (4) who is able to testify in his own defense if appropriate; and (5) whose ability to satisfy the foregoing criteria is commensurate with the severity of the case.

Martin v. State, 871 So.2d 693, 697 (Miss.2004) (citations omitted). In essence, the objective is to ensure that “the defendant has a rational understanding of the charges against him and the ability to assist his lawyer in preparing his defense.” Magee, 752 So.2d at 1102 (citing Godinez, 509 U.S. at 396, 113 S.Ct. 2680).

¶ 10. In the present case, the trial judge specifically inquired whether MeNeal was taking any medication. MeNeal responded that he had taken his prescription medication the night before including Elavil, Thorazine, and Prozac. The trial judge then continued to inquire if MeNeal was “confused” or did “not understand what [MeNeal was] doing here today.” After MeNeal assured the trial judge that he understood what was going on and the purpose of his presence in court, the judge had the prosecutor read the factual basis for the crimes. The judge then asked McNeal specific questions about the incidents which McNeal was admitting took place. The trial judge accepted McNeal’s plea only after satisfying himself beyond a reasonable doubt that McNeal was “intelligent enough to understand the nature and purpose of these proceedings.” The judge further found that McNeal “understands, comprehends, and appreciates the consequences of entering his plea, that his plea of guilty has been freely, voluntarily, and intelligently made without any forces, threats, acts of fear, violence, duress, coercion or any improper inducements of any kind or nature having been placed before him.”

¶ 11. The record is void of any indication that McNeal was unaware of the circumstances and likely consequences of his guilty plea. There is nothing but McNeal’s own contradictory allegations that he did not want to enter a guilty plea on the charge. Without more, the allegations are insufficient to warrant an eviden-tiary hearing.

2. Ineffectiveness of Counsel

¶ 12. McNeal claims his counsel was ineffective for a number of reasons including: a mental evaluation was not ordered knowing that McNeal was on psychotic drugs, failure to investigate the circumstances relating to the incidents in April and October 2000, failure to interview witnesses, misstating to McNeal’s parents the sentence that he would receive, and not complying with McNeal’s desire to go to trial.

¶ 13. In support of his argument McNeal relies on caselaw stating that counsel was ineffective for failing to interview alibi witnesses, eyewitnesses, and a co-defendant. Bryant v. Scott, 28 F.3d 1411, 1418 (5th Cir.1994). He also relies on caselaw stating that counsel was ineffective where specific witnesses were not called to testify, no expert testimony was given, and counsel did not prepare a defense, pursuing a theory that the charges would be dismissed at the close of the prosecution’s case. Pavel v. Hollins, 261 F.3d 210, 217-18 (2nd Cir.2001).

¶ 14. In Pavel, the defendant was accused of sexually abusing his two children and pled not guilty. Id. at 211-12. Pavel was convicted after a bench trial. Id. His counsel believed the case was so weak that a motion to dismiss would be granted after the State presented the case against Pavel. Id. Counsel did not plan for Pavel’s defense due to his belief that the case was too weak for the State to meet the required burden. Id. The facts of failing to provide a defense are too far removed from the situation presented by McNeal of counsel failing to obtain a mental evaluation and investigate the circumstances of the incidents. In addition, although this Court holds the opinions of the United States Court of Appeals for the Second Circuit in high esteem, we are not bound to uphold its precedent.

¶ 15. In Bryant, the United States Court of Appeals for the Fifth Circuit summarized that the particular inaction falling below the required professional conduct included counsel failing to “investigate alibi witnesses and interview eyewitnesses .... ” 28 F.3d at 1419-20. That court was careful to point out, however, that this holding did not require an “interview of every claimed eyewitness, alibi witness, and/or assertedly exculpating criminal co-participant.” Id. at 1420 n. 13. The court recognized that “the need to interview an eyewitness may in part depend on, among other things, the theory of defense; similarly, results of interviewing certain witnesses or other investigation may indicate that farther pursuit of additional asserted witnesses will likely be a waste of time.” Id. The deficiency in Bryant was that “defense counsel, despite knowing of Bryant’s at least colorable alibi, did essentially no pre-trial investigation.” Id. McNeal’s argument finds little help in Bi"yant because there were no alibi witnesses, and the only eyewitnesses to the actual crimes were the victims.

¶ 16. We review McNeal’s claim of ineffective assistance of counsel under a two-part inquiry of whether counsel’s performance was deficient, and whether that deficiency prejudiced McNeal. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). McNeal must show prejudice by demonstrating there is a “reasonable probability” that without counsel’s deficiency he would have received a different outcome from the trial court. Nicolaou v. State, 612 So.2d 1080, 1086 (Miss.1992). Mere allegations of prejudice will not suffice to meet the burden of proof on the issue of prejudice. Johnston v. State, 730 So.2d 534, 538 (Miss.1997). We will address each of McNeal’s allegations individually.

¶ 17. McNeal believes he should have been subject to a mental evaluation prior to the acceptance of his plea. Even if a mental evaluation was requested, the decision to have McNeal undergo a mental evaluation ultimately rested with the trial judge. Richardson v. State, 856 So.2d 758, 760 (Miss.Ct.App.2003) (citing Dunn v. State, 693 So.2d 1333, 1340-41 (Miss. 1997)). As we have previously discussed, the record demonstrates that the trial judge was careful to ensure McNeal knew what he was doing and the consequences of his actions. The judge stated that McNeal’s demeanor and responses to questions supported a finding that McNeal was coherent and that he intelligently entered his plea. A review of the hearing transcript supports the conclusion of the trial judge. Having already found that the judge did not abuse his discretion by not ordering a mental evaluation, we also find that counsel was not ineffective for failing to request an evaluation.

¶ 18. McNeal argues that his counsel should have interviewed witnesses and investigated statements regarding the incidents that led to his indictment. The factual basis for his plea on each charge was read aloud in his presence in court. McNeal communicated to the judge details about the October 2000 incident where he entered the home of the victim and forced her to have sex on the couch in her living room. The victim was a client of the moving company where McNeal worked and had recently moved the victim into her house. A neighbor saw McNeal approaching the victim’s house and became suspicious that he was trying to burgle the house. After a brief time, McNeal departed and the neighbor inquired if the victim was all right.

¶ 19. As for the April 2000 incident, McNeal stated that he was intoxicated but remembered meeting the victim at a trailer park pool. He then stated that he remembered going to the victim’s trailer and then speaking with the landlord later that day when the police had arrived. The factual basis presented by the State included an eyewitness who saw McNeal force his way into the victim’s trailer and DNA evidence.

¶ 20. At the hearing McNeal’s counsel stated that she “had numerous conversations with him about the discovery in all of these cases and he agrees with me that we do have reason to believe that the jury would find him guilty.” The content of the statements made by the victims and eyewitnesses were readily available to the defense and did not rise to the level of possibly providing exculpatory evidence. Given the facts of these incidents we cannot conclude that counsel was constitutionally deficient for failing to interview the two victims and witnesses that placed McNeal at the scene of the alleged crimes.

¶ 21. McNeal alleges that counsel misinformed his parents that he would earn good behavior time and spend less time in jail than the sentence he would receive. He claims that his parent’s persuasion based upon this faulty information is the reason he decided to enter a guilty plea. Of importance is that McNeal does not claim that he was unaware of the sentence he would receive, nor could he make such a claim having been informed numerous times of the possible sentence he faced. McNeal states in his brief that the reason his parents tried to persuade him to enter a guilty plea was because his mother was scared he would receive a life sentence; a possibility if McNeal was convicted by a jury. Other than his mere allegation there is no support offered for McNeal’s argument. In light of his own arguments there is no merit that his counsel was deficient here.

¶22. McNeal contends that he really wanted to take his case to trial, after representing directly to the trial judge that he understood all of the valuable rights he was waiving by entering a guilty plea, and desired to enter a guilty plea. His own argument set out above that he decided to take the plea agreement under pressure from his parents casts doubt on the veracity of this claim that he wanted to go to trial. In addition, at the plea hearing McNeal stated directly to the trial judge that he was satisfied that his counsel adequately familiarized herself with the facts and circumstances of the charges he faced. McNeal was informed that he stood before the trial court as an innocent man prior to entering his plea. A detailed explanation of his rights through the adversarial process were also explained but McNeal declined to pursue exercising those rights.

¶ 28. McNeal also briefly questions whether his counsel should have inquired whether it was proper for the trial judge to preside over the acceptance of his plea and sentencing. McNeal states that the judge was employed in the district attorney’s office at the time McNeal was charged. This argument is made for the first time in McNeal’s appellate brief. As a result, McNeal is procedurally barred from raising this argument. Pinkney v. State, 757 So.2d 297, 299 (Miss.2000); Patterson v. State, 594 So.2d 606, 609-10 (Miss.1992). Notwithstanding the procedural bar we review the record, and find that the only information available concerning this matter is the mere allegation that the trial judge worked as a district attorney and was familiar with the cases.

¶ 24. McNeal has failed to meet his burden to demonstrate constitutionally deficient performance of his counsel and that any deficiency resulted in prejudice. The record clearly demonstrates that McNeal repeatedly pursued the path of entering a guilty plea and never once even hinted that he was unsatisfied with the performance of his counsel or that he desired a trial. Had McNeal gone to trial he faced the possibility of three life sentences. The record reflects that he is only serving twelve years in prison, due in part to the efforts of his counsel. Having produced no evidence to support his claims other than his questionable allegations, the decision of the trial court to dismiss the motion for post-conviction relief is affirmed.

¶ 25. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF TUTS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Barbara KIDD, Appellant v. McRAE’S STORES PARTNERSHIP, Appellee.
    No. 2005-CP-01918-COA.
    Court of Appeals of Mississippi.
    March 13, 2007.
    Barbara Kidd, Appellant, pro se.
    Robert F. Stacy, Terry Dwayne Little, Oxford, Attorneys for Appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. This premises liability action arose after Barbara Kidd tripped and fell at the McRae’s Department Store in Tupelo, Mississippi. Kidd, appearing pro se, appeals the judgment of the Circuit Court of Lee County, after a jury found for the defendant, McRae’s Stores Partnership (“McRae’s”). On appeal, Kidd contends that the verdict was against the overwhelming weight of the evidence and the trial court erred in limiting expert testimony regarding future medical expenses. Finding no error, we affirm the judgment of the circuit court.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. On May 17, 2000, Barbara Kidd went to the McRae’s Department Store located in the Barnes Crossing Mall in Tupelo, Mississippi to return a dress she had purchased. While walking through the cosmetics area, she tripped and fell, alleging that the toe of her shoe caught an uneven portion of the tile floor which caused her to fall forward. It is undisputed that as a result of her fall, Kidd suffered a broken left arm.

¶3. Kidd was referred to Dr. Kim Stimpson for her broken arm. Beginning on May 19, 2000, Dr. Stimpson proceeded to treat her conservatively with range of motion exercises and physical therapy. Six months after her fall, following an initial period of improvement with her elbow, Kidd began to complain to Dr. Stimp-son about shoulder pain, which she stated had been present since the fall. She claimed this pain was inhibiting her ability to give massages, which was part of her business as a cosmetologist. Kidd’s last visit to Dr. Stimpson about her arm was on November 11, 2002.

¶4. On May 13, 2003, Kidd filed suit against McRae’s in the Circuit Court of Lee County, claiming the uneven tile in the store created a dangerous condition and caused her to fall. Kidd sought a judgment of $750,000 in compensatory damages and $1,000,000 in punitive damages. Kidd’s medical expenses for her arm injury totaled $8,726.26. Additionally, Kidd claimed that her injury caused her emotional distress and further financial harm because she could no longer give massages at her cosmetology business which resulted in a loss of income.

¶ 5. Kidd’s case went to trial on September 8, 2005. During Kidd’s case-in-chief, she called Dr. Stimpson as a witness via deposition testimony. The defense, however, moved to exclude certain portions of Dr. Stimpson’s testimony which was to be read to the jury. In his deposition, Dr. Stimpson had testified that the cost of two surgical procedures, one on the elbow and one on the shoulder, would be approximately $5,000 to $6,000 each. Defense counsel argued that the necessity of future surgery on Kidd was not stated to a reasonable degree of medical probability. The circuit court agreed that the future need for surgeries was never absolutely indicated as being necessary by Dr. Stimp-son. Thus the testimony regarding the cost of the surgeries was found inadmissible and was not read to the jury.

¶ 6. During the trial, Kidd’s expert witness, a flooring consultant named Andrew Holmes, testified that he had measured the height differential between the tiles where Kidd tripped. He found one tile to be in excess of 1/16 of an inch, or about the height of a dime, higher than the surrounding tile. Holmes stated this height differential did not conform with the American National Standards Institute (“ANSI”) or the Marble Institute of America’s (“MIA”) standards, both of which allow for only a 1/32 of an inch differential between tiles. However, Holmes was not aware of any definitive scientific study on tile safety and the likelihood of somebody tripping over height differentials of 1/32 of an inch, 1/16 of an inch, or 1/8 of an inch. Nor did he know of any safety studies done on the 1/32 of an inch ANSI and MIA standard. Ultimately, Holmes conceded that the ANSI and MIA 1/32 of an inch height differential standards were merely voluntary, and McRae’s had no duty to follow this recommendation.

¶ 7. McRae’s’ store manager, Steve Cade, was called by the defense as a witness. He testified that the floor where Kidd fell was installed in 1989 and had not been modified since that time. The manager did not believe that the floor presented a dangerous condition. Further, he testified that nobody had ever complained to the store management about the condition of the floor and that there had never been a report of anyone falling in this area since the floor’s installation.

¶ 8. McRae’s’ expert witness, Dr. George Hammitt, a professional flooring engineer, had also measured the floor with a ruler, shims, and a micrometer and found the height differential of the tile where Kidd fell to be 0.062 inches, or a little over 1/16 of an inch. He found the greatest height differential of the tiles surrounding the area where Kidd fell to be 0.071 inches. Regarding the requirements for public safety, Hammitt stated that McRae’s must, and does, comply with the International Building Code and the Americans with Disabilities Act (“ADA”). He testified that while there is no height differential requirement stated in the International Building Code, the ADA’s maximum height differential is no more than 1/4 of an inch, much greater than the differential presented here. Finally, Hammitt concluded that since the height differential of the tile at the accident’s site did not violate any known code and was safe according to several national standards, including the .American Society of Testing Materials, ANSI and ADA, the height differential was not unreasonably dangerous.

¶ 9. The jury returned a verdict for McRae’s. Kidd now appeals.

LAW AND ANALYSIS

I. Whether the jury verdict was against the overwhelming weight of the evidence.

¶ 10. When an appellant challenges the jury verdict to be against the overwhelming weight of the evidence, this Court will give great deference to the jury verdict and resolve “all conflicts in the evidence and every permissible inference from the evidence in the appellee’s favor.” Wal-Mart Stores, Inc. v. Johnson, 807 So.2d 382, 389(¶ 16) (Miss.2001) (citing Bobby Kitchens, Inc. v. Miss. Ins. Guar. Ass’n, 560 So.2d 129, 131 (Miss.1989)). The jury is the ultimate arbiter of the weight of the evidence and the credibility of the witnesses. Breaux v. Grand Casi nos of Miss., Inc., 854 So.2d 1093, 1098(¶ 14) (Miss.Ct.App.2003) (citing Jackson v. Griffin, 390 So.2d 287, 289 (Miss.1980)). This Court will disturb a jury-verdict only when it “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Wal-Mart Stores, 807 So.2d at 389(¶ 16) (Miss.2001) (citing Herrington v. Spell, 692 So.2d 93, 103-04 (Miss.1997)).

¶ 11. In her brief, Kidd, appearing pro se, basically reiterates her argument at the trial level. She argues that McRae’s was negligent in failing to repair its uneven floor tiles. Because the area of tile where she tripped was 1/16 of an inch out of alignment with surrounding tiles, she contends this was a dangerous condition. Kidd states that McRae’s, under Mississippi law, has a duty to exercise reasonable care to maintain its premises in a reasonably safe condition. See McGovern v. Scarborough, 566 So.2d 1225, 1227 (Miss.1990). Kidd concludes that having tile 1/16 of an inch out of plane is not reasonably safe. Since McRae’s knew of this height differential since 1989 and did not repair it, Kidd argues that McRae’s breached its duty of care to provide a safe floor for its customers.

¶ 12. Kidd’s arguments, however, are issues which the jury properly decided at trial. It is the province of the jury to evaluate the weight of the evidence and the witnesses’ credibility. Breaux, 854 So.2d at 1098(¶ 14). We find, after reviewing the record and evidence presented, with our deferent standard of review for the jury’s decision, and resolving all conflicts of evidence and inferences in favor of the appellee, that there was ample evidence presented to justify the jury’s verdict for the defendant, McRae’s.

¶ 13. First, Kidd’s . expert, Andrew Holmes, testified that the height differential between two tiles where Kidd tripped was in excess of 1/16 of an inch, or about the height of a dime. A reasonable jury could infer through the evidence presented, not to mention their common sense, that the height differential of a little over a dime between two tiles certainly does not constitute an unreasonably dangerous condition. Further, Holmes never stated that this differential would create a dangerous condition. He stated that the ANSI and MIA standards were installation standards only, and he was unaware of any safety studies done where this height differential would be considered unreasonably dangerous. Holmes conceded that there are no required standards for height differential of tile which McRae’s had a duty to follow. A jury could reasonably infer that while tile out of alignment 1/16 of an inch may violated an installation standard, McRae’s did not have a duty to comply with these completely voluntary, non-safety standards.

¶ 14. Second, the manager of McRae’s, Steve Cade, testified that since the time the floor had been installed in 1989 until Kidd’s fall in 2000, there had never been any changes or modifications to it. Further, there was no record of anybody falling or complaining about the floor since its installation, thus a reasonable jury could infer that tiles differing in height by 1/16 of an inch do not create a dangerous condition.

¶ 15. Third, McRae’s’ expert witness, George Hammitt, a professional engineer, testified that all of the tile measurements he took, whether it be the greatest height differential of 0.071 inches, or the height differential of the tile where Kidd fell of 0.062 inches, complied with all known codes, standards, and requirements for safety. He differentiated between trade association installation standards and safety standards, pointing out that the MIA and ANSI standards are voluntary. Again, a reasonable jury could rely on Hammitt’s testimony as a sufficient basis for finding the tiles were not a dangerous condition and McRae’s did not breach its duty of care to Kidd.

¶ 16. Finally, at trial, Kidd even testified that she was looking at the cosmetics counter, not the floor, when she tripped on the tile. A reasonable jury could infer that not watching where she was going was the proximate cause of Kidd’s fall. Through the expert witnesses’ and Kidd’s own testimony, a reasonable jury could return a verdict for McRae’s. Accordingly, this issue is without merit.

II. Whether the trial court erred in limiting deposition testimony regarding future medical expenses.

¶ 17. The well-settled standard of review for the admission or exclusion of evidence is abuse of discretion. Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34(¶ 4) (Miss.2003) (citing Haggerty v. Foster, 838 So.2d 948, 958(¶ 25) (Miss.2002)). The admission of expert witness testimony is within the discretion of the trial judge. Id. (citing Puckett v. State, 737 So.2d 322, 342 (Miss.1999)). Thus, the trial judge’s decisions will stand “unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.” Id.

¶ 18. Kidd argues that the trial court erred in limiting the deposition testimony of Dr. Stimpson regarding future medical expenses-specifically, the cost of surgeries for injuries sustained during her fall. Maintaining that Dr. Stimpson’s opinion was formed with sufficient medical certainty that she would require future surgery, Kidd argues that this testimony should have been heard by the jury concerning her future medical expenses.

¶ 19. Mississippi Rule of Evidence 702 states that if expert testimony “will assist the trier of fact to understand the evidence” and the witness is qualified, the testimony will be admitted. Yet, when an expert’s opinion is not based on a reasonable degree of medical certainty, or the opinion is articulated in a way that does not make the opinion probable, the jury cannot use that information to make a decision. Catchings v. State, 684 So.2d 591, 597 (Miss.1996) (citing Schulz v. Celotex Corp., 942 F.2d 204, 207 (3rd Cir.1991) (internal citations omitted)). Failure to properly qualify an expert opinion typically occurs in testimony that is speculative, using phrases such as “probability,” “possibility,” or even “strong possibility.” Id. (internal citations omitted). It is the intent of the law “that if a physician cannot form an opinion with sufficient certainty so as to make a medical judgment, neither can a jury use that information to reach a decision.” Id. (internal citations omitted).

¶ 20. In our case, the trial judge allowed the portions of Dr. Stimpson’s testimony where he discussed the possibility of two surgeries on Kidd’s arm, but disallowed the portion of the testimony regarding the cost of these surgeries — $5,000 to 6,000 each. In his deposition, at two different times, Dr. Stimpson testified regarding surgery:

Q. And what was your plan of treatment at that time [September 17, 2001]?
A. She was seen again for her elbow and shoulder, left side_ We discussed treatment options, including surgical evaluation of the shoulder, possible surgical treatment of her elbow.
Q. And at that time [November 11, 2002] you did not feel that surgery was indicted for her left shoulder?
A. We didn’t have any plans to perform any surgery on her, no.

We find that the trial court did not err in limiting the deposition testimony of Dr. Stimpson regarding the costs of the surgeries because he never expressed an opinion to a degree of medical certainty that Kidd would ever require these surgeries. Accordingly, this issue is without merit.

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

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

      . As part of her business, Kidd also performs electrolysis, facials, and applies permanent make-up.

      . Kidd initially filed suit against the following defendants: McRae’s Store at Barnes Crossing Mall, David Hocker & Associates, R.F. Coffin Enterprises, Barnes Crossing Mall, Inc., unknown defendant A and unknown defendant B. David Hocker & Associates and R.F. Coffin Enterprises were dismissed from the case. Kidd proceeded against McRae’s Stores Partnerships, as the proper defendant.

      . Holmes testified that he measured the tile differential by placing a dime on the lower tile and a credit card across the top of the dime in the area where the adjacent tile is higher.


author: GRIFFIS, J.,

text:
    Harmon L. MOONEY, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01822-COA.
    Court of Appeals of Mississippi.
    March 13, 2007.

      Pat Donald, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Harmon L. Mooney was convicted of felony possession of methamphetamine. Mooney appeals and argues that the trial court committed reversible error when it admitted Mooney’s confession into evidence. We find no error and affirm.

FACTS

¶2. During the trial, the court held a suppression hearing to determine if Mooney’s confession should be admitted into evidence. The testimony came from the three officers who were present when Mooney was arrested on an unrelated warrant. Mooney did not testify during the suppression hearing.

¶ 3. Officer Tony Smith testified that he, along with Officers Mike Williams and Brett Flake, arrived at Mooney’s residence in Leake County to serve an arrest warrant. Officer Smith approached Mooney and informed him he was under arrest. Officer Smith handcuffed Mooney and informed him of his Miranda rights. Officer Smith testified that Mooney indicated that he understood his Miranda rights. Officer Smith then conducted a pat down search of Mooney and found a pair of bags containing a white crystal substance in Mooney’s front pant’s pockets. Officers Williams and Flake corroborated Officer Smith’s testimony. They also testified that they did not hear Smith attempt to coerce or promise Mooney anything in exchange for a statement.

¶ 4. Officer Smith transported Mooney to the Leake County jail. During transport, Officer Smith testified that he had a “casual conversation” with Mooney. Officer Smith testified that during this casual conversation he reminded Mooney of his rights. Officer Smith also stated that this conversation occurred around five to ten minutes after Mooney was originally read his rights. Officer Smith then testified that during the “conversation” Mooney said the “stuff’ on him was a quarter gram of meth and that he paid twenty dollars for it. Mooney described it as “home made meth.” Officer Smith testified that he never attempted to coerce or promise Mooney anything during the “conversation.”

¶ 5. As a result of this testimony, the trial court allowed the confession to be admitted into evidence and presented to the jury. It is this decision that Mooney claims is reversible error.

STANDARD OF REVIEW

¶6. “Once the trial judge has ‘determined, at a preliminary hearing, that a confession is admissible, the defen-danVappellant has a heavy burden in attempting to reverse that decision on appeal.’ ” Applewhite v. State, 753 So.2d 1039, 1041(¶ 10) (Miss.2000) (quoting Sills v. State, 634 So.2d 124, 126 (Miss.1994)). “This Court will reverse the trial court’s finding that a confession is admissible only when an incorrect legal standard was applied, manifest error was committed, or the decision is contrary to the overwhelming weight of the evidence.” Duplantis v. State, 644 So.2d 1235, 1243 (Miss.1994) (citing Willie v. State, 585 So.2d 660, 665 (Miss.1991)).

ANALYSIS

¶ 7. Mooney argues that the confession was involuntary because it was secured at a time when he was without legal counsel and at a time when he had not waived his right against self incrimination.

¶ 8. The State has the burden to prove beyond a reasonable doubt that the confession was voluntary. Payton v. State, 897 So.2d 921, 935(¶ 30) (Miss.2003). “The State meets its burden and makes a prima facie case when an officer or other person who has knowledge of the facts testifies that the confession was made voluntarily, without threats, coercion, or offer of reward.” Id. (citing Dancer v. State, 721 So.2d 583, 587(¶ 17) (Miss.1998)). Here, Officer Smith’s testimony met the State’s burden. Officer Smith testified that he did not coerce or promise anything to Mooney in exchange for the statements. Officer Smith’s testimony was corroborated by Officers Williams and Flake, who testified that they did not hear Smith attempt to coerce Mooney or promise him anything. Thus, the State met its burden of proving a prima facie case of voluntariness. Without any other evidence to the contrary, this evidence was enough to establish that Mooney’s statement to Officer Smith was voluntary.

¶ 9. Mooney argues that he had not waived his right to counsel or his right against self-in crimination. “The right to have an attorney present must be ‘specifically invoked.’” Holland v. State, 587 So.2d 848, 856 (Miss.1991) (quoting Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)). Also, if the right to remain silent is invoked, “the interrogation must cease.” Holland, 587 So.2d at 855 (citing Edwards, 451 U.S. at 482, 101 S.Ct. 1880). Each of these rights must be invoked and once they are invoked, interrogation must cease. There is no evidence from the record that suggests Mooney even attempted to invoke either of these rights. Thus, this argument that the confession was involuntary due to failure to waive either right is without merit.

¶ 10. Mooney also argues that the confession came at a different time and place from when he was informed of his Miranda rights. Officer Smith testified that the confession occurred only five to ten minutes after Mooney had been advised of his Miranda rights. Further, the incriminating statements were given to the same officer that read Mooney his Miranda rights. The supreme court has held that five to ten minutes constituted a pause in questioning that “did not require a renewal of Miranda warnings.” Taylor v. State, 789 So.2d 787, 794(¶ 28) (Miss.2001). Officer Smith testified that during the conversation with Mooney he reminded Mooney of his Miranda rights. Even without this reminder, the brief pause between the issuing of the Miranda warnings and the confession did not amount to enough time to warrant a renewal of the Miranda warnings. This issue is also without merit.

¶ 11. The trial court did not abuse its discretion in finding that from the totality of the circumstances that the confession was voluntary and allowing it to be presented to the jury. McGowan v. State, 706 So.2d 231, 235(¶ 12) (Miss.1997). Therefore, we find no error and affirm.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY OF CONVICTION OF POSSESSION OF METHAMPHETAMINE AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAY A FINE OF $1,500 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Eddie LOGAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00595-COA.
    Court of Appeals of Mississippi.
    March 13, 2007.

      Antwayn Patrick, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Eddie Logan was convicted of embezzlement by a public official. He was sentenced to serve three years in the custody of the Mississippi Department of Corrections, which was suspended, with six months of community service, concurrently with six months on supervised probation. Logan appeals and argues the verdict was against the overwhelming weight of the evidence. We find no error and affirm.

FACTS

¶ 2. From 2002 to 2005, Logan was the mayor of Durant. As a city official, he held a key to a city building that was formerly leased by Roberts Cabinet Company and Southern Holdings. Both companies manufactured furniture. Roberts Cabinet manufactured cabinets. Southern Holdings manufactured wood furniture, including tables and chairs.

¶ 3. In 2002, Roberts Cabinet went out of business. Trustmark National Bank had a lien on Roberts Cabinet’s personal property. Southern Holdings then leased the building between early summer and October 2002, when it went out of business as well. Willie Barton, the owner of Southern Holdings, told Logan and others that they could have the inventory overruns. The mayor took a dinette set. Both companies still had personal property inside the building.

¶ 4. On February 1, 2003, Trustmark held an auction of Roberts Cabinet’s property inside the city building. Beforehand, Trustmark tagged all pieces of property it claimed under the security agreement. Likewise, the city marked all property that belonged to it, and was thus not available for auction. The mayor handed his key to the building to Vice Mayor Howard Roberts and put him in charge of the auction. The mayor told the city board members at several meetings that if he saw anything he liked, he was going to take it. No one objected.

¶ 5. The next day, buyers from the auction came to retrieve their purchases. Logan told Roberts that he was going to take a desk and showed him which one. Roberts claimed he told Logan it was city property. Logan claimed Roberts merely suggested Logan take another nicer desk. After the conversation, Logan proceeded to take the desk he originally wanted. He also took a refrigerator, microwave, five sheets of plywood, and a toolbox with tools. None of the items he took were tagged by either Trustmark or the city.

¶ 6. Roberts did not stop Logan, nor call the police. Roberts had someone take pictures and asked a couple to witness Logan taking the property. All witnesses testified that Logan was open about what he was doing and even posed for the pictures.

¶ 7. Logan was indicted for embezzlement of the desk/cabinets and grand larceny of the other items. Logan testified Barton gave him permission to take the property. The jury acquitted him on the charge of grand larceny but convicted him on the charge of embezzlement.

STANDARD OF REVIEW

¶ 8. In reviewing a sufficiency of the evidence claim, the Court considers the evidence in the light most favorable to the verdict. Bush v. State, 895 So.2d 836, 844(¶ 16) (Miss.2005). Usually, if any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we will uphold the verdict. Id.

¶ 9. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. at (¶ 18). The evidence is weighed in the light most favorable to the verdict. Id. The power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. Id. If the verdict is against the overwhelming weight of the evidence, the proper remedy is to grant a new trial. Id.

ANALYSIS

¶ 10. Although Logan styles his issue as “weight of the evidence,” he argues both weight and sufficiency of the evidence. Specifically, he claims (1) the State failed to prove the elements of embezzlement, and (2) the overwhelming weight of the evidence proved mistake of fact. We therefore treat these two arguments separately.

I. Did the State fail to prove the elements of embezzlement?

¶ 11. Any “officer of any city, town or village” who “shall unlawfully convert to his own use any money or other valuable thing which comes into his hands or possession by virtue of his office or employment” is guilty of embezzlement. Miss. Code Ann. § 97-11-25 (Rev.2006). “The conversion would not be unlawful if the owner of the property consented thereto or made a gift of the property upon receipt.” Hooker v. State, 516 So.2d 1349, 1353 (Miss.1987).

¶ 12. Logan challenges that the State failed to prove he unlawfully converted the cabinets and that he intended to do so. Specifically, he argues the State failed to prove the desk was city property. He also argues that the State failed to prove that he knew he was taking city property.

¶ 13. The cabinets were not claimed by Trustmark as property that was owned by Roberts Cabinet and subject to Trustmark’s lien. Vice Mayor Roberts testified that the cabinets belonged to the city. On cross-examination, Roberts stated that “[Logan] come [sic] to me and told me he spotted some cabinets that he wanted, and I said I recommend you not bother them, they don’t belong to us.” Roberts admitted that he did not mark the cabinets as belonging to the City of Durant. Aider-man James Ferguson also testified the cabinets were the city’s property. However, when asked how he knew, Ferguson testified that he did not remember.

¶ 14. Barton testified that, at the time, he was in the process of getting federal funding to resume operations of Southern Holdings’s furniture plant in the building. He had plans to use the foreman’s office as a display area. The cabinets in question were in the way, “[a]nd I asked the mayor if he could get those cabinets moved so I could use that room for a display.” This testimony suggests that the cabinets belonged to the city and not Southern Holdings. If the cabinets belonged to Southern Holdings, it stands to reason Barton would have removed the cabinets and not required the city to do so. We find that there was sufficient evidence that the desk/cabinets in question were indeed city property.

¶ 15. There was also sufficient evidence that Logan knew the cabinets were city property. Roberts testified that he gave Logan notice of this fact, and Barton’s testimony indicates Logan knew the cabinets belonged to the city and thus it was the city’s responsibility to remove them to accommodate a potential tenant.

¶ 16. It was undisputed that Logan was the Mayor of Durant at this time and that he took the cabinets for his own personal use. Roberts testified that the city did not give Logan permission to take them. Thus, there was sufficient evidence for the jury to conclude that Logan, as Mayor of Durant, came into possession of city owned cabinets, by virtue of his office, and unlawfully converted those cabinets for his own use.

II. Does the overwhelming weight of the evidence prove Logan operated under a mistake of fact?

¶ 17. Logan next argues that the overwhelming weight of the evidence proved that he operated under a mistake of fact and did not knowingly embezzle city property. Specifically, he believed that the cabinets were Southern Holdings’s, and Barton had given him permission to take any of Southern Holdings’s personal property. The State responds that Logan knew that he was taking city property.

¶ 18. We have already discussed the State’s evidence which supports the finding that Logan knew the cabinets were city property. As for the contrary, there was evidence that Trustmark and the city tagged all property each were claiming, and the cabinets were not tagged. Even though the cabinets were attached to the wall, Logan was not the only one who assumed they were not city property. Three witnesses testified that they had tried to bid on those exact cabinets, but were informed they were not part of the auction. All agreed that Logan did not try to hide the fact that he was going to take the cabinets. He told the board several times, if he saw anything in there that he liked he would take it. Not once did any member object. That day, he told Roberts what he was doing. Although Roberts warned him not to take it, Roberts characterized this on the stand as a recommendation. Logan posed for pictures. Logan brought his truck in the middle of the plant at about 10:45 a.m. when Roberts and others were present. He disassembled and loaded the cabinets onto his truck and carried them to his house. Roberts, as head city official over the auction, did not try to stop Logan, nor call the police, even though Roberts had a cell phone at the time. Instead he called on several people present to “witness” that Logan was taking the cabinets. Logan testified that the cabinets belonged to Barton and he had Barton’s permission to take them.

¶ 19. However, Barton insisted that he only gave Logan permission to take his inventory overruns-tables and chairs. As for the cabinets, Barton asked Logan to remove them so he could use the office as a showroom. On cross-examination, Logan conceded that he did not have Barton’s permission to take the desk/cabinets, and Logan admitted he made no attempt to give them back to Barton.

¶ 20. On this record, we hold that the verdict was not against the overwhelming weight of the evidence. Accordingly, we affirm.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF HOLMES COUNTY OF CONVICTION OF COUNT II EMBEZZLEMENT AND SENTENCE TO SERVE A TERM OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, SUSPENDED, WITH SIX MONTHS OF COMMUNITY SERVICE AND SIX MONTHS ON SUPERVISED PROBATION TO RUN CONCURRENTLY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . There is no indication that Roberts was connected to Roberts Cabinet.

      . Logan referred to the property as a desk. All other witnesses referred to this desk as base cabinets. It is undisputed that whatever it was, its corner was anchored into a corner of the foreman's office.


author:
STUART, Justice.
      NABERS, Chief Justice

text:
    Ex parte John LARY d/b/a Internal Medicine Clinic. (In re John Lary d/b/a Internal Medicine Clinic v. ZymeTx, Inc.).
    1050229.
    Supreme Court of Alabama.
    May 5, 2006.
    John Lary, pro se.
    Submitted on petitioner’s brief only.
   STUART, Justice.

John Lary, a physician and the sole proprietor of Internal Medicine Clinic, sued ZymeTx, Inc., an Oklahoma corporation, alleging that ZymeTx “initiated or sent or transmitted or engaged others to initiate or send or transmit on its behalf unsolicited advertisement communications by wire which were received by [Lary] via his telephone facsimile machine.” The circuit court sua sponte dismissed the complaint; Lary appealed. The Court of Civil Appeals affirmed, without an opinion. Lary v. ZymeTx, Inc. (No. 2040330, June 30, 2005), 945 So.2d 499 (Ala.Civ.App.2005)(table). This Court granted Lary’s petition for a writ of certio-rari to determine whether the decision of the Court of Civil Appeals conflicts with its decision in Lary v. VSB Financial Consulting, Inc., 910 So.2d 1280 (Ala.Civ.App.2005). We reverse and remand.

Facts

According to the complaint, Lary is a physician doing business under the name of Internal Medicine Clinic, and he is engaged in the delivery of emergency medical services. Lary has a telephone line, designated as an “emergency telephone line,” that is connected to his voice telephone and to his facsimile machine. The purpose of this emergency telephone line is to “make and receive emergency telephone voice calls related to emergency medical services, and send and receive emergency facsimile transmissions for the purpose of rendering emergency medical services.” In his complaint, Lary alleges that on September 11, 2002, ZymeTx either sent or caused to be sent on its behalf via facsimile to Lary’s emergency telephone line an unsolicited advertisement. According to Lary, he has no business relationship with ZymeTx and did not give ZymeTx permission to send an advertisement to any telephone facsimile of his. Lary sued ZymeTx, alleging that ZymeTx had violated certain provisions of the Telephone Consumer Protection Act of 1991 (“the TCPA”). See 47 U.S.C. § 227(b)(1)(C), 47 U.S.C. § 227(b)(1)(A)(i), and 47 U.S.C. § 227(d)(1)(A) and (B). Lary also asserted claims of conversion, invasion of privacy, and pattern of misconduct. ZymeTx did not enter an appearance or answer Lary’s complaint.

On December 1, 2004, Lary moved for a default judgment and requested damages in the amount of $3,000. On December 3, 2004, the circuit court sua sponte dismissed the complaint for “lack of proof.” The circuit court’s order in the case-action summary indicates that the dismissal of the complaint was based on the theory that the averment in Lary’s complaint that Zy-meTx or others sent the unsolicited facsimile was subject to the interpretation that “others” had sent the facsimile rather than ZymeTx itself and that those others were not shown to have been acting as agents employees of ZymeTx.

Standard of Review

“A judgment on the pleadings is subject to a de novo review. Harden v. Ritter, 710 So.2d 1254, 1255 (Ala.Civ.App.1997). A court reviewing a judgment on the pleadings accepts the facts stated in the complaint as true and views them in the light most favorable to the nonmoving party. Id. at 1255-56.... [I]n deciding a motion for a judgment on the pleadings, the trial court is bound by the pleadings. See Stockman v. Echlin, Inc., 604 So.2d 393, 394 (Ala.1992).”

Universal Underwriters Ins. Co. v. Thompson, 776 So.2d 81, 82-83 (Ala.2000).

Legal Analysis

Lary contends that the Court of Civil Appeals erred in affirming the circuit court’s dismissal of his complaint. Specifically, he argues that the circuit court’s dismissal of his complaint conflicts with the holding of the Court of Civil Appeals in Lary v. VSB Financial Consulting, supra.

Initially, we note that in the procedural posture of the case at the time the circuit court dismissed the action, Lary did not have a burden to adduce any “proof’; therefore, we conclude that the circuit court’s dismissal of the action was based on what it perceived to be an inadequacy in the pleadings.

In similar actions, the Court of Civil Appeals has stated the following with regard to actions filed alleging violations of the TCPA:

“[T]he TCPA forbids the use of ‘any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine.’ 47 U.S.C. § 227(b)(1)(C). Under the TCPA, an ‘unsolicited advertisement’ is ‘any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission.’ 47 U.S.C. § 227(a)(4). Moreover, the TCPA provides that ‘[a] person or entity may, if otherwise permitted by the laws or rules of court of a State, bring ... an action to recover for actual monetary loss from’ a violation of subsection (b) of 47 U.S.C. § 227 ‘or to receive $500 in damages for each such violation, whichever is greater.’ 47 U.S.C. § 227(b)(3) (emphasis added).
“... Congress intended that private parties such as Lary could bring an action under 47 U.S.C. § 227(b)(3) for violations of the unsolicited-fax provisions of the TCPA....”

Lary v. Tom Taylor Agency, 878 So.2d 1165, 1167 (Ala.Civ.App.2003)(footnote omitted).

In Lary v. VSB Financial Consulting, a case factually similar to the case before us, the Court of Civil Appeals held that actions authorized pursuant to the TCPA “ ‘implicitly include the doctrine of vicarious liability, whereby employers are liable for the acts of their agents and employees.’ ” 910 So.2d at 1283 (quoting Accounting Outsourcing, LLC v. Verizon Wireless Personal Communications, L.P., 329 F.Supp.2d 789, 806 (M.D.La.2004)). In VSB Financial, the evidence indicated that VSB had hired the person who sent Lary the unsolicited facsimile advertisement. The Court of Civil Appeals concluded that “[a]t a minimum, the record indicated that an agent or employee of VSB sent an unsolicited facsimile advertisement to Lary in contravention of’ certain provisions of 47 U.S.C. § 227. 910 So.2d at 1283. Thus, the Court of Civil Appeals concluded that a cause of action for violating the TCPA could be based on the doctrine of vicarious liability.

Here, it appears that Lary satisfied his burden of pleading a cause of action for violating the TCPA based on the doctrine of vicarious liability. In his complaint, Lary provided alternative averments. Lary alleged that ZymeTx “itself’ did the wrongful act or, in the alternative, that ZymeTx “engaged others to initiate or send or transmit [the unsolicited advertisement] on its behalf.” Rule 8(e)(2), Ala R. Civ. P., provides that “[w]hen two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements.” Thus, Lary’s alternative averments are sufficient, in light of application of the doctrine of vicarious liability, to satisfy Lary’s burden of pleading, and the circuit court exceeded the scope of its discretion when it dismissed Lary’s action.

Conclusion

The judgment of the Court of Civil Appeals is reversed, and this cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

NABERS, C.J., concurs in the result.

NABERS, Chief Justice

(concurring in the result).

As I understand it, the trial court’s order indicates that the court dismissed the action because it believed it lacked personal jurisdiction over ZymeTx, Inc., an Oklahoma corporation. John Lary’s complaint alleges that ZymeTx sent a facsimile transmission into Alabama in violation of federal law. All of Lary’s claims arise from that transaction. As a result, there were sufficient minimum contacts between ZymeTx and Alabama to subject ZymeTx to specific personal jurisdiction in this action. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)(single act can support jurisdiction if contacts result from defendant’s deliberate acts); see Rule 4.2(b), Ala. R. Civ. P. I therefore concur in the Court’s decision to reverse and remand.


author: PITTMAN, Judge.

text:
    John LARY d/b/a Internal Medicine Clinic v. ZYMETX, INC.
    2040330.
    Court of Civil Appeals of Alabama.
    Aug. 25, 2006.
    John Lary, pro se.
    Submitted on appellant’s brief only.
   After Remand from the Alabama Supreme Court

PITTMAN, Judge.

This court, on June 30, 2005, affirmed the trial court’s judgment, without an opinion. Lary v. ZymeTx, Inc. (No. 2040330, June 30, 2005), 945 So.2d 499 (Ala.Civ.App.2005) (table). This court’s judgment has been reversed and the cause remanded by the Supreme Court of Alabama. Ex parte Lary, 951 So.2d 635 (Ala.2006). In compliance with the Supreme Court’s opinion, the judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with the Supreme Court’s opinion.

REVERSED AND REMANDED.

CRAWLEY, P.J., and THOMPSON, MURDOCK, and BRYAN, JJ., concur.