text:
    Troy SMITH, Appellant v. DIMA HOMES, INC., Appellee.
    No. 2010-CA-00701-COA.
    Court of Appeals of Mississippi.
    Aug. 23, 2011.
    Rehearing Denied Nov. 8, 2011.
    Jack Parsons, Tadd Parsons, Wiggins, Dawn Smith, attorneys for appellant.
    James W. Gladden Jr., Jerry A. Evans, attorneys for appellee.
    Before GRIFFIS, P.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Troy Smith purchased a home from DiMa Homes, Incorporated (DiMa) on December 12, 2005. On December 12, 2008, Smith brought suit against DiMa seeking damages on the basis that his home was negligently built. Then, on February 18, 2010, DiMa filed a motion to dismiss or, in the alternative, a motion for summary judgment. DiMa argued that the statute of limitations had run on Smith’s negligence claim; therefore, the suit should be dismissed. The circuit judge entered an order granting DiMa summary judgment and a final judgment of dismissal on April 23, 2010. It is from this dismissal that Smith appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. Smith and DiMa entered into a contract on June 27, 2005, for DiMa to construct Smith a house for $107,705. When construction on the house was almost complete, Smith and a DiMa representative had a walk-through of the home to inspect for any defects. During the walk-through that occurred on November 14, 2005, Smith made note of several defects and repairs to be made. On December 12, 2005, Smith closed on his loan and took possession of the completed house.

¶ 3. Smith, being unsatisfied with the condition of the house, filed his complaint in the Pearl River County Circuit Court on December 12, 2008. In his complaint, Smith alleged that DiMa negligently and improperly constructed the house. On February 18, 2010, DiMa filed a motion to dismiss or, in the alternative, a motion for summary judgment. In its motion, DiMa asserted that Smith’s complaint was barred by the three-year statute-of-limitations period. The circuit judge agreed that Smith was barred by the statute of limitations and entered an order on April 23, 2010, granting summary judgment in favor of DiMa. On the same day, the circuit judge also entered a final judgment of dismissal finding that Smith’s claims were barred by the statute of limitations.

¶ 4. It is from the circuit judge’s grant of summary judgment in favor of DiMa and dismissal of his case that Smith appeals. On appeal, he raises three issues:

I. Whether the circuit court erred in dismissing Smith’s claim for negligence against DiMa as barred by the statute of limitations.
II. Whether the statute of limitations ever began to run since Smith did not receive notice as required by Mississippi Code Annotated section 83-58-7 (Supp.2010).
III. Whether Smith had six years to file his claim rather than three years..

¶ 5. Finding that the circuit court erred in dismissing Smith’s claim, we reverse and remand this case.

STANDARD OF REVIEW

¶ 6. The standard of review this Court applies when reviewing the lower court’s grant of summary judgment is de novo. Whitaker v. Limeco Corp., 32 So.3d 429, 433-34 (¶ 10) (Miss.2010) (citing Andrus v. Ellis, 887 So.2d 175, 179 (¶22) (Miss.2004)). Also, when reviewing issues of law, such as statute of limitations, this Court employs a de novo standard of review. Id. (citing Burleson v. Lathem, 968 So.2d 930, 932 (¶ 7) (Miss.2007)).

ANALYSIS

¶ 7. Smith brought his claim under the theory of negligence, which is a common-law tort theory; therefore, there is no specific statute that specifies the limitations period. Pursuant to Mississippi Code Annotated section 15-1^49(1) (Rev. 2003), “[a]ll actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.” Smith’s complaint for negligence was subject to this general three-year statute-of-limitations.

¶ 8. Mississippi Code Annotated section 15-1^49(1) provides that the statute of limitations begins to run after “the cause of such action accrued!.]” The Mississippi Supreme Court has found that “for purposes of a statute of limitations, a cause of action accrues ‘when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested.’ ” Fletcher v. Lyles, 999 So.2d 1271, 1277 (¶ 23) (Miss.2009) (quoting Bullard v. Guardian Life Ins. Co. of Am., 941 So.2d 812, 815 (¶ 11) (Miss.2006)). For the right to sue for negligence to become vested, all elements of the tort must be present. Id. (citing Caves v. Yarbrough, 991 So.2d 142, 147 (¶ 21) (Miss.2008)). The elements of negligence are duty, breach, causation, and damages. Fisher v. Deer, 942 So.2d 217, 219 (¶ 6) (Miss.Ct.App.2006) (citing Couch v. City of D’Iberville, 656 So.2d 146, 150 (Miss.1995)). In this case, Smith suffered no damages until he became the owner and took possession of the house on December 12, 2005. Once this occurred, his right to sue under the theory of negligence vested, thus commencing the running of the statute of limitations. Once we determine the day Smith’s claim accrued, we turn to Mississippi Rule of Civil Procedure Rule 6(a) to determine how to compute the statute of limitations. Rule 6(a) states, in pertinent part, that “[i]n computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included.” We agree with the circuit judge’s finding that since Smith’s claim accrued on December 12, 2005, his statute of limitations began on December 13, 2005. Thus, Smith had three years from December 13, 2005, to file his complaint under the theory of negligence.

¶ 9. Having established that Smith had three years from December 13, 2005, to file his complaint, the circuit judge found that Smith filed his complaint after the statute of limitations had expired. He reasoned that Smith had 1,095 days to file his complaint, which is 365 days multiplied by three years. He further concluded that the year 2008 was a leap year and “that the third and final year of [Smith’s] period of limitation concluded on December 11, 2008,” since February contained an extra day that year. It is in this conclusion that we find the circuit court erred.

¶ 10. Smith filed his complaint on December 12, 2008, which was the very last day to file his complaint. It appears that the circuit judge simply miscalculated the days. Although in his order for summary judgment, he stated that the first day “included in [Smith’s] period of limitation was December 13, 2005[,]” he incorrectly began his computation based on running the statute of limitations on December 12, 2005. The proper computation begins on December 13, 2005, and it ends at midnight on December 12, 2008.

¶ 11. Since we find that the circuit court erred in calculating when Smith’s statute-of-limitations period expired, the remaining issues raised on appeal by Smith are moot. Because the circuit judge originally miscalculated the statute of limitations and Smith filed his complaint within the three-year statute-of-limitations period, the granting of summary judgment in favor of DiMa was in error. We reverse and remand this case for further proceedings consistent with this opinion.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., IRVING AND GRIFFIS, . P.JJ., MYERS, BARNES, ISHEE, CARLTON, MAXWELL AND RUSSELL, JJ„ CONCUR.


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Xavier SHAW, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01442-COA.
    Court of Appeals of Mississippi.
    Sept. 27, 2011.

      Leslie S. Lee, Jackson, Mollie Marie McMillin, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and ISHEE, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Xavier Shaw appeals his convictions for armed robbery, attempted armed robbery, and aggravated assault. He argues that the verdicts are against the overwhelming weight of the evidence because the two eyewitnesses to the crime gave conflicting testimonies and because their out-of-court identifications of Shaw were tainted by an overly suggestive photographic lineup. We find no error and affirm.

FACTS

¶ 2. On August 9, 2009, Roosevelt Williams went to the Walnut Game Room in Clarksdale, Mississippi, to play dominoes with Joe Spencer, the owner of the game room. As Williams entered, he noticed a man pull a chair up to the building and sit to the side of the entrance to the game room. Later, while Spencer and Williams were playing dominoes, the same man entered the game room and asked Spencer if he had any barbeque. Spencer replied that he did have barbeque left over from the day before. He told the man to return later and pick up the barbeque once it had been reheated; the man then left the game room.

¶ 3. The same man returned a second time, but he did not pick up the barbeque. He left the game room only to return a third time. This time he was holding a gun and had a bandana wrapped around the lower half of his face. The man pointed the gun at Spencer and Williams as he demanded that they “give it up.” Spencer gave the man his wallet, which contained approximately thirty dollars. The man kept only the cash and threw Spencer’s wallet on the floor.

¶4. Williams also handed the man his wallet. When the man discovered that it contained no money, he told Williams: “B* * *h, I’m not playing with you.” He then put the gun up to Williams’s head and pulled the trigger. The gun clicked, but it did not fire. The man fled from the game room. Williams testified that he got in his car and drove around looking for the man. Williams returned to the game room and told Spencer that he could not see which way the man had gone. Spencer called the police to report the crime.

¶ 5. Two days later, both Spencer and Williams picked Shaw out of a photographic lineup as the man who had robbed them. They identified Shaw again during trial. The jury found Shaw guilty on all three charges. He was sentenced to fifteen years for armed robbery, fifteen years for attempted armed robbery, and eight years for aggravated assault. All three sentences we ordered to be served concurrently. Shaw’s motion for a judgment notwithstanding the verdict or, alternatively, for a new trial was denied.

STANDARD OF REVIEW

¶ 6. “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.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). The evidence is weighed in the light most favorable to the verdict. Id. “[T]he power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)). If the verdict is against the overwhelming weight of the evidence, the proper remedy is to grant a new trial. Id. “This Court does not have the task of re-weighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible.” Langston v. State, 791 So.2d 273, 280 (¶ 14) (Miss.Ct.App.2001).

ANALYSIS

¶ 7. Shaw argues that the verdicts are against the overwhelming weight of the evidence. Because there was no physical evidence linking him to the crime, he acknowledges that the State’s case relied on the victims’ testimonies. Shaw contends that the victims’ identifications were tainted by a suggestive photographic lineup; therefore, the verdicts against him cannot stand. The State responds that even if the photographic lineup was suggestive, the identifications were reliable.

¶ 8. We begin with the photographic lineup. Shaw argues that of the six men featured in the lineup, he was the only one with an Afro hairstyle. He also argues that five of the men are holding whiteboards with numbers and dates. Shaw’s whiteboard was the only one that listed the date that this crime occurred. Shaw claims that the lineup was suggestive.

¶ 9. Shaw made no attempt to suppress the lineup prior to trial, nor did he object on this basis when the State entered the lineup into evidence. Instead, Shaw chose to present his argument that the lineup was suggestive to the jury.

¶ 10. Shaw’s argument may be convincing. “A photographic lineup is im-permissibly suggestive when the accused is ‘conspicuously singled out in some manner from others.’ ” Brown v. State, 829 So.2d 93, 102 (¶ 18) (Miss.2002) (quoting York v. State, 413 So.2d 1372, 1383 (Miss.1982)). Shaw is clearly the only suspect with a large Afro, and his whiteboard was the only one that displayed the date of the crime. But the suggestive nature of the lineup alone is insufficient to negate the in-court identifications of Shaw. Upon a review of the eyewitnesses’ testimonies in this case, we find that the jury was presented with ample evidence to find that the victims’ identifications of Shaw were reliable.

¶ 11. In York, the Mississippi Supreme Court set forth the following standard to determine whether an in-court identification is reliable:

An impermissibly suggestive pretrial identification does not preclude in-court identification by an eyewitness who viewed the suspect at the procedure, unless: (1) from the totality of the circumstances surrounding it (2) the identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

In determining whether these standards are fulfilled ... the following may be considered:

the opportunity of the witness to view the criminal at the time of the crime, the witnesses] degree of attention, the accuracy of the witnesses] prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

York, 413 So.2d at 1383 (footnotes and citations omitted).

¶ 12. Spencer testified that he knew Shaw stayed with someone in the neighborhood and that he had seen Shaw come to the game room with other neighborhood kids prior to the robbery. Spencer said that Shaw entered the game room three times on the day of the robbery. Shaw wore the same clothes each time; he merely covered his mouth with a bandana when he entered the third time. Spencer stated that he had an opportunity to get a good look at Shaw the first two times he entered the game room. He testified that he had no doubt that Shaw was the man who had robbed him.

¶ 13. Williams testified that he had seen Shaw outside the game room as well as during the three times that Shaw entered the game room. He also saw Shaw down the street from the game room immediately after the robbery had occurred. Williams said that he was able to get a good look at the face of the man who had attempted to rob him.

¶ 14. Spencer and Williams gave the same description of the man who had robbed them-a black male wearing an Afro hairstyle, blue shorts with a white stripe, and a white t-shirt. They both testified that, during the robbery, the bandana fell down slightly so that they could see a bit more of the man’s face. This evidence indicates that Spencer and Williams gave close attention to Shaw’s face. And they both identified Shaw in the photographic lineup just two days after the crime had occurred.

¶ 15. There was also circumstantial evidence presented by the State in addition to the victims’s testimonies. Keith Haynes testified that Shaw had been staying at his family’s house at the time of the robbery. Shaw had asked Haynes about a gun that he had found in Haynes’s closet. Haynes told Shaw that the gun did not work. Haynes’s mother, Lisa Haynes, testified that she saw Shaw on the day of the robbery and that he appeared to be scared like he wanted to hide from someone. When Haynes heard about the robbery, he discovered that his gun was missing.

¶ 16. Considering the totality of the circumstances, we do not find that the photographic lineup was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidenti-fication. Because the victims’ identifications of Shaw were reliable, his claim that the verdicts are against the overwhelming weight of the evidence is without merit.

¶ 17. Although not raised by the State, we note that “[a]n appellate court is under no obligation to review an assignment of error when an objection was not made or when an objection was untimely.” Caston v. State, 823 So.2d 473, 503 (¶ 102) (Miss.2002). A specific and contemporaneous objection to the admission of evidence, such as the photographic lineup, must have been made at the time the evidence was admitted for the admissibility to be considered on appeal. Here, there was no objection raised. Therefore, any objection to the photographic lineup was waived.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF COUNT I, ARMED ROBBERY, AND SENTENCE OF FIFTEEN YEARS; COUNT II, ATTEMPTED ARMED ROBBERY, AND SENTENCE OF FIFTEEN YEARS; AND COUNT III, AGGRAVATED ASSAULT, AND SENTENCE OF EIGHT YEARS, ALL TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHO-MA COUNTY.

LEE, C.J., IRVING, P.J., MYERS, BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR.


author: ISHEE, J.,

text:
    Percy D. HESTER Sr., Appellant v. Sundra SAMPLES, Appellee.
    No. 2010-CA-00582-COA.
    Court of Appeals of Mississippi.
    Oct. 11, 2011.

      Julie Ann Epps, E. Michael Marks, attorneys for appellant.
    Donald W. Boykin, attorney for appel-lee.
    Before IRVING, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Percy D. Hester Sr. (Hester) appeals a judgment from the Newton County Chancery Court ordering him to pay Sun-dra Hester Samples (Samples) $23,761 in back child support for the period of years from 1992 through 2006. Hester argues that the chancellor erred by (1) refusing to admit Samples’s Texas affidavit, which contradicted her trial testimony that she had never received child-support payments from 1992 to 2004, and (2) failing to credit Hester for certain payments he had made for his daughter’s benefit, such as rent money, college tuition, and other living expenses. Hester also requests that the Court award him attorneys’ fees for this appeal and remand the case back to the chancery court to impose sanctions against Samples and her attorney. Finding no error, we affirm the chancery court’s judgment, and we deny Hester’s requests for attorneys’ fees and sanctions.

FACTS AND PROCEDURAL HISTORY

¶ 2. Hester and Samples were married on February 28, 1992, in Hinds County, Mississippi. Shortly thereafter, in November 1992, they were granted an irreconcilable-differences divorce by the Newton County Chancery Court. Together they had one child, Priscilla Hester (Priscilla), who was born on August 4, 1988. The chancery court approved the couple’s property-settlement and child-custody agreement, which gave Samples primary legal and physical custody of Priscilla, and Hester agreed to pay $200 a month in child support, along with certain medical expenses, half of the educational expenses, and health insurance for Priscilla.

¶ 3. After the divorce, Samples moved to Longview, Texas, and remarried. In November 2004, Samples and Priscilla began having disagreements, and Samples kicked Priscilla out of her home and requested that Hester come to get her. Instead of moving to Mississippi, Priscilla stayed in Texas and lived with her friend, Maria, and Maria’s mother from November 2004 until May or June 2005. During that time, Hester claims he made child-support payments directly to Priscilla for rent to Maria’s mother and for other living expenses. Priscilla lived with Hester in Mississippi throughout the summer of 2005, but she moved back in with her mother in Texas once school resumed.

¶ 4. After an argument with her stepfather, Dwayne Samples, in October 2005, Priscilla moved into her own apartment in Texas. Hester claims that he made child-support payments in the form of rent directly to Priscilla’s landlord through the end of July 2006 when Priscilla moved back to Mississippi to live with Hester and attend college. Priscilla was emancipated in December 2006.

¶ 5. Around September 2007, Samples sought assistance from the Texas Attorney General’s Office to obtain past-due child-support payments she claimed she was owed for Priscilla. The case was subsequently referred to the Mississippi Department of Human Service (DHS) and then to the Newton County Department of Human Services (Newton County DHS), whereby the Newton County DHS filed a notice of redirection of child-support payments on June 4, 2008.

¶ 6. On September 9, 2008, DHS filed a contempt action in the chancery court on behalf of Samples, claiming that Samples had received services under Title IV-D of the Social Security Act; therefore, DHS was authorized to bring suit to collect the past-due child-support payments from Hester. The complaint alleged Hester was in arrears of $18,850 for the nonpayment of child support from May 5, 1992, to June 30, 2008. DHS asked the chancery court to withhold Hester’s employment check to pay off the child-support debt, as well as health insurance for Priscilla. A hearing was set before a Family Master for September 17, 2008, and Hester was given proper notice.

¶ 7. The record is unclear as to the exact date of the occurrence, but when the parties appeared before the Family Master, a question arose concerning an affidavit (the Texas affidavit) that Samples had signed in 2007 from the Texas Attorney General’s Office, which detailed Hester’s child-support payments from 1992-2007. Although the Family Master requested the document, DHS failed to obtain the affidavit from Texas. Thus, the Family Master continued the case until the affidavit could be produced. Notwithstanding the continuance, Hester never made any further inquiries into the matter of the affidavit.

¶ 8. After several orders for continuance, the attorney for the Newton County DHS filed an agreed order for substitution of counsel on May 6, 2009, which the chancery court granted on May 7, 2009. A settlement conference was scheduled for July 21, 2009, and a trial date set for July 22, 2009. The chancellor then allowed DHS to withdraw its suit on July 22, 2009, on behalf of Samples, and he allowed Samples to refile a contempt petition in her own name against Hester on August 14, 2009. When DHS withdrew from the case, Samples hired a new attorney to represent her, and the chancery court granted a substitution to accommodate Samples’s new counsel.

¶ 9. In her complaint, Samples initiated the same request to recoup the past-due child support, claiming Hester had not paid any child support since the initial court order in 1992, owing her over $29,000. She also asserted that Hester owed $510 in medical and insurance co-pay costs; $2,171 in dental costs; $3,200 in pre-K and kindergarten costs; $5,607.56 in health-insurance costs; and owed her attorneys’ fees.

¶ 10. Hester propounded his first set of interrogatories to Samples on July 24, 2009. The chancery court issued an order on August 4, 2009, allowing Samples to revise her petition and serve it on Hester. The chancery court also ordered the parties to complete discovery by September 14, 2009; rescheduled the settlement conference for November 2, 2009; and reset the trial for November 3, 2009. Samples served Hester with her first set of interrogatories and requests for production of documents on August 13, 2009. She also served Hester with an amended complaint, which claimed that Hester was in arrears of $29,061 in back child support from May 1992 to August 2008; $510 in medical and insurance costs; $2,171 in dental costs; and $3,200 for pre-K and kindergarten costs.

¶ 11. The trial began on November 3, 2009. Hester and Samples were the only witnesses to testify at trial. Hester testified that he timely paid all of his child support to Samples until Samples moved in June 1998. He wired her the money through Western Union MoneyGram (Western Union). He stated that he would also give Samples cash when he visited Texas to see Priscilla. Hester produced records from Western Union showing the payments from 2004 to 2008. However, he was unable to produce records of payments made before 2004. Hester also claimed that the lack of payments made prior to 2004 was due to Samples having moved, and he was unable to locate the family. He further claimed that Western Union notified him that three of his child-support payments had not been retrieved by Samples.

¶ 12. Samples testified that Hester did not pay her any money from May 1992 until January 2005. She admitted that Hester sent money in 2005 and 2006, but not in 2007. On cross-examination, Hester’s attorney attempted to offer a portion of the Texas affidavit into evidence, stating that he had received the affidavit from the Newton County DHS attorney. Samples’s attorney objected to the affidavit as hearsay, and the chancery court sustained the objection, noting that the record could not be shown to be authentic or accurate.

¶ 13. On November 20, 2009, the chancery court issued its final judgment, holding Hester in contempt for his willful failure and refusal to pay child support in the sum of $23,761 for the period of May 1, 1992, through December 31, 2006. The chancellor ruled that Hester had failed to pay any child support from May 1992 through December 2004. However, because Priscilla had failed out of college, the chancellor ordered that she was deemed emancipated in December 2006. Therefore, Hester was only responsible for child-support payments from May 1992 through December 2006. The order specifically stated the amount and date of certain child-support payments Hester had made over the years, all of which were either in 2005 or 2006. The order also stated that Hester must pay $2,500 for Samples’s attorneys’ fees and pay the court costs associated with the case, plus interest. The chancellor credited Hester for payments he claimed to have made in 2004, and for the time Priscilla lived with him in 2006, but not for payments he made directly to Priscilla while she lived with Maria and Maria’s mother from December 2004 to May 2005.

¶ 14. Hester then filed a motion for reconsideration of the final judgment on November 25, 2009. Hester had received a fax from the former attorney for DHS, which included an affidavit from the Texas Attorney General’s Office. The affidavit, signed by Samples in 2007, appeared to contradict her previous testimony that Hester did not pay child support from 1992 through 2005. Conversely, Samples attested that Hester had paid $19,500 in direct payments to Samples for child support since 1992. However, Samples testified at trial that she had never received any payments from Hester since the initial child-support order in 1992. Because of this, Hester argued that the amount of the final judgment should be reduced.

¶ 15. Meanwhile, Samples filed a motion to find Hester in contempt of court for failing to pay her the full amount of $2,500 in attorneys’ fees that were included in the chancery court’s final judgment. The chancellor set a hearing for the matter on February 19, 2010, which was later rescheduled to March 11, 2010. Samples also filed a suggestion for writ of garnishment against Hester, requesting that the chancery court garnish Hester’s wages for the full amount of past-due child support ordered by the chancery court in November 2009.

¶ 16. At the hearing on the motion to reconsider, Samples’s counsel argued that the Texas affidavit and Western Union orders that Hester purported to use as evidence of his child-support payments did not reconcile. During this hearing, Samples was in Houston at MD Anderson Cancer Center, seeking treatment for cancer. Samples’s counsel stated that Hester admitted in his testimony at trial that he made no child-support payments prior to 2004, yet he now sought to be given credit for payments he had allegedly made before 2004. Samples’s attorney also admitted that he had been in possession of the Texas affidavit before trial, but he did not disclose it to Hester because Hester had never requested it in discovery.

¶ 17. After considering evidence and oral arguments from both parties, the chancery court denied Hester’s motion to reconsider the final judgment. The chancellor found that the affidavit was inadmissible and did not qualify as “newly discovered evidence,” which would allow him to revisit the final judgment. Hester timely appeals.

DISCUSSION

I. Motion for Reconsideration

¶ 18. Hester claims that his motion for reconsideration should have been granted because the chancery court erred by deeming Samples’s Texas affidavit inadmissible as not being newly discovered evidence and lacking the accuracy customary to Mississippi proceedings. Relief from a judgment or order may be granted based on “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).” M.R.C.P. 60(b)(3). The party seeking a motion for a new trial must file “not later than ten days after the entry of judgment.” M.R.C.P. 59(b). The ten-day deadline also applies to motions to alter or amend judgments. M.R.C.P. 59(e).

¶ 19. We review a trial court’s ruling regarding the admission or exclusion of evidence under an abuse-of-discretion standard of review. Richardson ex rel. Richardson v. DeRouen, 920 So.2d 1044, 1048-49 (¶ 10) (Miss.Ct.App.2006) (citations omitted). Unless the error adversely affects a substantial right of a party, we will not disturb a trial court’s decision regarding the admission or exclusion of evidence. Id. at 1049 (citation omitted). “The decision to grant relief under Rule 60(b) is a matter left to the sound discretion of the trial court, and our review is limited strictly to determining if there was an abuse of discretion.” Id. at 1050 (¶ 16) (citations omitted).

¶ 20. Hester claims that the chancery court erred by ruling that the Texas affidavit was not newly discovered evidence. “A motion based upon newly discovered evidence may not be granted unless it can be shown that (1) the evidence was discovered following the trial; (2) due diligence on the part of the movant to discover the new evidence is shown or may be inferred; (3) the evidence is material and not cumulative or impeaching; [and] (4) the evidence is such that a new trial would probably produce a new result.” Goode v. Synergy Corp., 852 So.2d 661, 663 (¶ 8) (Miss.Ct.App.2003) (citation omitted).

¶ 21. On appeal, Hester claims that days after the trial, he received, via fax, the Texas affidavit, which was purported to have been completed by Samples in 2007. This affidavit lists handwritten dates and amounts of payments Samples claimed Hester had made from May 1992 until September 2007. The dates are not uniformly listed according to the month, year, and amount paid. Some of the payments include a month and year, while other payments are listed only by the total for the year.

¶ 22. At the hearing on the motion for reconsideration, the chancery court noted that the Newton County DHS had the Texas affidavit in its possession at the time it filed the notice of redirection of child-support payments; when it filed a petition for contempt; and at the time of trial. Therefore, the evidence could not properly be considered as newly discovered. Further, Hester testified on cross-examination at the hearing that he knew before trial that the Texas affidavit existed. Specifically, he admitted that “Texas” told him before the trial that there was an affidavit made by Hester.

¶ 23. He also testified on proffer that in 2008, when he met with a representative from the Newton County DHS, the representative provided him with the same figures Samples had obtained. Hester countered Samples’s claims by giving the DHS representative copies of his Western Union records. However, Hester stated that the Newton County DHS failed to provide him with the Texas affidavit at that time. At the initial hearing before the Family Master, Hester claimed that upon the Family Master’s request for the Texas affidavit, DHS’s attorney stated “there was no affidavit,” and said that all she had was a letter from Texas. The Family Master ruled that the trial could not proceed because DHS did not provide the Texas affidavit, which was required to collect past-due child support.

¶ 24. Hester further claimed that he contacted “Texas” after the initial hearing, and “Texas” refused to provide him with the affidavit, but he was informed that the Mississippi DHS was in possession of the affidavit. Hester’s attorney asserted that he made a reasonable and diligent effort to obtain all of the necessary discovery from the Newton County DHS, but for whatever reason, it was not provided to him. During the trial on the merits, the chancellor reminded Hester’s attorney that he had previously told him, “I should like to have had something from the State of Texas,” regarding the past-due child-support payments Samples claimed Hester had made prior to 2004. Hester’s attorney did not respond, nor did Hester file a subpoena for these records. Instead, Hester claims he relied upon the former DHS attorney’s assertions that she had given him everything she had and that the affidavit did not exist.

¶25. We fail to see how the Texas affidavit could be considered newly discovered evidence. Hester admitted at trial that he knew about the Texas affidavit well before the trial commenced. The Family-Master informed both parties that the Texas affidavit was needed in order to make his ruling. Yet Hester never filed a subpoena to the Mississippi DHS, Newton County DHS, or the Texas Attorney General’s Office to obtain the document.

¶26. Moreover, the majority of Hester’s arguments concern misrepresentations he alleges were made by the Newton County DHS attorney involved in the initial action. But he neglected to subpoena the attorney to testify at the hearing on the motion for reconsideration. “A plaintiff cannot fail to investigate important information and then attempt to assert that information as new evidence at the end of the trial.” Goode, 852 So.2d at 664 (¶ 12) (citation omitted). Thus, we find that the Texas affidavit cannot be shown to be newly discovered evidence, and Hester failed to demonstrate due diligence to discover the Texas affidavit.

¶ 27. We also find Hester fails to establish that the Texas affidavit is material and that its admission at trial would have produced a different result. Hester claims that portions of the Texas affidavit more accurately reflect child-support payments made from 1992 until 1996. In this regard, Hester is asking this Court to choose only those payments listed in the Texas affidavit, which are beneficial to him and which differ from those claimed at trial, rather than those documented by Western Union’s records and presented during the trial testimony. The chancellor correctly declined this impermissible cherry-picking of child-support payments.

¶ 28. In its ruling on the admissibility of the Texas affidavit at the hearing on the motion for reconsideration, the chancery court made several comments regarding the accuracy of the Texas affidavit, noting that the payments submitted were not broken down by month and year. The chancellor stated: “It just does not appear to ... have the accuracy of the documents that we normally get from the Department of Human Services which indicates monthly payments.”

¶ 29. The chancellor further commented that the affidavit had no uniformity nor specificity to it except for the year(s) in which Samples claimed Hester had made payments. For instance, for the years 1993, 1995, 1996, and 2004, the payments were listed in one lump sum, rather than being listed as payments made each month. Because the payments were not broken down on a monthly basis, the chancery court questioned the accuracy of the record.

¶ 30. Further, the chancery court noted that the Texas affidavit contradicted Hester’s trial testimony regarding payments he had made in 2005. Based on his testimony and the evidence he produced from the Western Union receipts, the chancery court had already awarded Hester a credit of over $5,000 for the year 2005. However, the Texas affidavit stated that Hester had only paid $2,400 during that year. Therefore, if the chancery court had accepted the Texas affidavit, Hester’s credit would have been reduced by more than half for that year. Further, at some point, Hester was given a $10,000 credit at trial. Yet according to the Texas affidavit, Hester would only have been entitled to a $4,000 credit, resulting in $6,000 less than the credit he was originally awarded after the initial judgment.

¶ 31. Hester had an opportunity to set the record straight on the payments he had made over the years to Samples. In Samples’s first set of interrogatories, she asked Hester to state the payments he had made to her over the years. Hester answered, “See documents attached,” refer-eneing Western Union records from 2004 to 2008. Hester claims that Western Union would not provide him with records prior to 2004. But his subpoena to Western Union only asked for records from 2004 to the present. At trial, Hester admitted that he made no payments to Samples from 1998 to 2004, because he did not know where Samples was living. His responses to Samples’s interrogatory and his trial testimony support the fact that he did not make any payments from 1998 until 2004, when the Western Union records indicate the payments began.

¶ 32. Moreover, for a new hearing to be granted, Hester must also prove that had the Texas affidavit been admitted, it would have produced a new result. Goode, 852 So.2d at 667 (¶ 21). In support of this argument, Hester claims that because Samples’s testimony conflicted with the statements made in her Texas affidavit, the chancery court would have had the option to dismiss the case. The Texas affidavit was not the only proof that Hester could have provided to counter Samples’s claims that he had paid no child support prior to 2004. Again, in Hester’s subpoena duces tecum to Western Union, he only asked for records dating back to 2004.

¶ 33. The chancellor further noted during the post-trial motion for reconsideration, that if he were to go by the Texas affidavit, Hester would lose approximately $6,000 that he had already received as credit. Samples argues that Hester is attempting to receive credit for payments made prior to 1998, as shown on the Texas affidavit, but also trying to keep the additional credit he received at trial for the years 2004 to 2008. Thus, Hester failed to prove that the outcome would have been different had the Texas affidavit been admitted. In fact, even if the outcome had been proven to be different, it would likely be in Samples’s favor.

¶ 34. Therefore, we find that the chancellor did not abuse his discretion in denying Hester’s motion for reconsideration. Hester never used due diligence to obtain the Texas affidavit, even though he knew of its existence and was instructed by the Family Master that it was needed. The chancellor at the trial on the merits also referenced the document and informed Hester he wanted to see the document, yet Hester failed to take the steps necessary to attempt to procure it. Even if Hester could demonstrate that the Texas affidavit would produce a new result if admitted— albeit one which may not be in his favor— we find that he is unable to meet his burden to prove all of the required elements for a new trial. Therefore, we find this issue lacks merit.

II. Failure to Award Hester Credit for Payments Made

¶ 35. For the first time on appeal, Hester claims that the chancellor failed to give him full credit for payments made for Priscilla’s rent and living expenses while Priscilla was living on her own, as well as failure to give him credit for money he paid for Priscilla’s college tuition.

¶ 36. An appellant may not raise a new issue on appeal that he had not first presented to the trial court for determination. McDonald v. McDonald, 39 So.3d 868, 885 (¶ 54) (Miss.2010) (citation omitted). Hester filed a motion for reconsideration on November 25, 2010. In that motion and at the hearing, he did not raise the issues of the chancellor’s failing to give him credit for these payments, which he now asserts should have been given to him. Hester is procedurally barred from raising these claims now on appeal. Accordingly, this issue is procedurally barred.

III. Attorneys’ Fees

¶ 37. Hester’s final argument is that this Court should remand this case to the chancery court for the imposition of sanctions in the form of attorneys’ fees and costs against Samples and her attorney. Hester cites generally to Mississippi Rule of Appellate Procedure 36, stating that should this case be reversed, Samples would be responsible for paying the court costs. Mississippi Rule of Appellate Procedure 36(a) states in pertinent part that if a case is reversed on appeal, the appellee shall pay the costs associated with the appeal, unless the court orders otherwise. Because we have found no reversible error in this case, Hester’s request is moot.

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

LEE, C.J., MYERS, BARNES, ROBERTS, CARLTON AND RUSSELL, JJ., CONCUR. IRVING AND GRIFFIS, P.JJ., AND MAXWELL, J„ CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


author: PARKER, Justice.

text:
    Brady FARR v. The GULF AGENCY et al.
    1090073.
    Supreme Court of Alabama.
    June 17, 2011.

      William J. Baxley and David McKnight of Baxley, Dillard, Dauphin, McKnight & James, Birmingham; and Ed McRight, Jr., of McRight & Sanspree, LLC, Montgomery, for appellant.
    James W. Garrett, Jr., and Bethany L. Bolger of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee The Gulf Agency.
    James E. Robertson, Jr., and Carroll H. Sullivan of Scott, Sullivan, Streetman & Fox, P.C., Mobile, for appellee Orange Beach Insurance Agency, Inc.
    Christina May Bolin and Helen Johnson Alford of Alford, Clausen & McDonald, LLC, Mobile, for appellee Lexington Insurance Company.
   PARKER, Justice.

Brady Farr appeals the Montgomery Circuit Court’s judgment entering summary judgments in favor of The Gulf Agency, Inc. (“Gulf Agency”), Orange Beach Insurance Agency, Inc. (“Orange Beach”), and Lexington Insurance Company (“Lexington”) (hereinafter collectively referred to as “the insurance companies”). We affirm the trial court’s judgment in part and reverse it in part.

Facts and Procedural History

In the early 1980s, Farr purchased a house situated on a beachfront lot in Orange Beach on Perdido Beach Boulevard (“the property”). Farr’s deposition testimony indicates that he began renovating the house in the late 1990s and completed renovating it in 2003 at a total cost of approximately $568,000. Farr further testified that, in early 2004, he decided to sell the property to a developer, who was buying property on which to build a highrise condominium complex. Farr testified that, in anticipation of the sale, he obtained a loan of $1,000,000 secured by a mortgage on the property. As part of the loan process, Farr’s mortgage company ordered an appraisal of the property, which was performed by Ronald Holyfield on March 8, 2004 (“the Holyfield appraisal”). The property was appraised for a value of $1,325,710; the improvements on the property were valued at $313,000. Farr testified that he thought that the appraised value of the house was too low and that he contacted Holyfield to express his concerns. Farr testified that he did not give Holyfield any additional information concerning the value of the house and that he did not hire another appraiser to perform an additional appraisal.

In March 2004, Farr sought to obtain homeowner’s insurance coverage for the house situated on the property. To that end, Farr testified that he contacted Orange Beach and requested “full coverage” to insure against a “total loss” of the house on the property and that he had trusted Orange Beach to secure the appropriate coverage limits. On March 29, 2004, Farr signed and submitted an application for homeowner’s insurance coverage with Lexington to Orange Beach, which is a “sub-agent or retail agent,” requesting $300,000 worth of insurance coverage against wind damage for the dwelling on the property and $20,000 worth of contents-insurance coverage. The $300,000 policy limit was based on the Holyfield appraisal. Orange Beach forwarded Farr’s application for insurance coverage to Gulf Agency, a surplus lines broker. Gulf Agency did the underwriting on Farr’s application to Lexington in accordance with guidelines given it by Lexington and issued an insurance policy to Farr on behalf of Lexington (“the policy”). The effective dates of the policy were March 25, 2004, to March 24, 2005. On March 25, 2004, Lexington mailed the policy to Orange Beach for delivery to Farr. The policy specifically excluded primary flood insurance. Thus, in addition to the policy, Farr also secured a flood-insurance policy through the National Flood Insurance Program (“NFIP”) from Assurant Solutions in the coverage amount of $250,000 for the house and $20,000 for personal property. The policy also included the following provision:

“Other Insurance. If a loss covered by this policy is also covered by other insurance, we will pay only the proportion of the loss that the limit of liability that applies under this policy bears to the total amount of insurance covering the loss.”

On May 18, 2004, Farr signed a sales agreement to sell the property to a third party for $1,500,000 with a $100,000 down payment.

In the late summer or early fall of 2004, Farr was concerned that the policy limits were not sufficient to adequately cover a total loss of the house. As a result, he consulted his attorney at the time, Chris Sanspree, and John Allen, an insurance-claims consultant listed by Farr as an expert witness. Sanspree and Allen were both of the opinion that Farr’s insurance coverage was inadequate. On March 1, 2004, Farr had executed a general power of attorney in favor of Sanspree for the purpose of dealing with matters regarding any insurance policies Farr had in place concerning the property. Farr indicated in his deposition testimony that he personally made no attempts to increase the policy limits on the property. Sanspree and Allen, however, indicated in their affidavit testimony or deposition testimony that they had contacted Orange Beach and Gulf Agency on behalf of Farr and had requested an increase in coverage under the policy. The policy limits were never increased.

On September 16, 2004, the house on the property was destroyed by Hurricane Ivan. On September 20, 2004, Farr contacted Orange Beach and filed a claim for insurance benefits under the policy. Orange Beach forwarded Farr’s claim to Lexington on September 21, 2004. Farr included a claim for benefits under the contents portion of the policy in the amount of $53,421.61.

On November 12, 2004, Farr signed an amended sales agreement with the third party; the sales price was decreased from $1,500,000 to $1,180,000, in addition to the $100,000 down payment. The amended sales agreement acknowledged that the house had been declared a “full loss” and that it could not be “restored, repaired, or rebuilt in the present location of the improvement.” On February 7, 2005, Farr deeded the property to the third party and was paid $1,280,000.

Alvin Wells was the flood adjuster for the NFIP assigned to Farr’s claim under the flood-insurance policy. According to his claim summary, Wells determined that the replacement value of the house was $454,272 and that 60% of the damage to the house, or the amount of $272,536.20, was attributable to flood damage. Accordingly, Wells determined that Farr was due the full policy limit of the flood-insurance policy, or $250,000. Wells also determined that Farr had suffered $29,548.95 worth of damage to the contents of the house. On April 22, 2005, Assurant Solutions paid Farr $250,000 under his flood-insurance policy for the damage to the house and $20,000 for the damage to the contents.

At Farr’s request, Lexington retained Halliwell Engineering Associates, Inc. (“Halliwell”), to inspect the property and to determine the cause of the loss. Halli-well determined that the “proximate cause” of the destruction of the house “was the high ... storm surge and wave action associated with Hurricane Ivan.” Halli-well also determined that the roof of the house had been damaged by winds associated with Hurricane Ivan. As a result, on January 19, 2006, Lexington paid Farr $50,000 for the damage to the house. Nothing in the record indicates that Lexington paid Farr anything under the contents portion of the policy.

Alleging that the policy did not provide adequate coverage and that Lexington had failed to pay the proper benefits under the policy, Farr sued the insurance companies on November 2, 2007, asserting claims of fraud, misrepresentation, negligence, and conspiracy to defraud. Farr later amended the complaint to include claims of breach of contract and bad-faith failure to pay an insurance claim against Lexington. The insurance companies answered and asserted various counterclaims against Farr.

The insurance companies each filed a motion for a summary judgment, and the circuit court set the motions for a hearing on August 24, 2009. On August 21, 2009, Farr filed an opposition to the insurance companies’ summary-judgment motions. Attached to Farr’s response was an affidavit of his former attorney, Chris Sanspree. The insurance companies moved to strike Sanspree’s affidavit from Farr’s response for various reasons, and the circuit court granted the motion. On September 1, 2009, the circuit court entered a judgment granting the insurance companies’ motions for a summary judgment. Farr filed a motion to alter, amend, or vacate the circuit court’s judgment pursuant to Rule 59(e), Ala. R. Civ. P., which the circuit court denied. Farr then appealed to this Court.

The insurance companies’ counterclaims against Farr had not been adjudicated at the time Farr appealed the circuit court’s partial summary judgment; likewise, Farr’s claims against State Farm Insurance Company (“State Farm”) had not been adjudicated (see supra note 5). As a result, this Court entered an order remanding the case to the circuit court noting that the appeal was not from a final judgment because the counterclaims of the insurance companies and Farr’s claims against State Farm had not been adjudicated. On March 10, 2010, the circuit court entered an order making its September 1, 2009, judgment final pursuant to Rule 54(b), Ala. R. Civ. P., stating that “[tjhere is no just reason for delay and judgment is entered on behalf of the [insurance companies] as to [Farr’s] claims. The counterclaims of the [insurance companies] remain pending.” The claims against State Farm also remain pending. This Court then reinstated the appeal.

Standard of Review

We review a summary judgment by the following standard:

“ ‘ “In reviewing the disposition of a motion for summary judgment, we utilize the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact” and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Ex parte General Motors Corp., 769 So.2d 903, 906 (Ala.1999). When the basis of a summary-judgment motion is a failure of the nonmovant’s evidence, the movant’s burden, however, is limited to informing the court of the basis of its motion — that is, the moving party must indicate where the nonmoving party’s case suffers an evidentiary failure. See General Motors, 769 So.2d at 909 (adopting Justice Houston’s special concurrence in Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989), in which he discussed the burden shift attendant to summary-judgment motions); and Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (stating that ‘a party seeking summary judgment always bears the initial responsibility of informing the [trial] court of the basis of its motion’). The moving party must support its motion with sufficient evidence only if that party has the burden of proof at trial. General Motors, 769 So.2d at 909.”

Rector v. Better Houses, Inc., 820 So.2d 75, 79-80 (Ala.2001). Additionally, we “accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable doubts in favor of the nonmoving party.” Bruce v. Cole, 854 So.2d 47, 54 (Ala.2003).

Discussion

The circuit court entered a general order granting each insurance company’s summary-judgment motion. In each of the summary-judgment motions, the insurance companies argued that Farr’s tort claims were barred by the two-year statute of limitations for tort claims in § 6-2-38, Ala.Code 1975. The insurance companies maintain this argument on appeal, arguing that Farr knew of the causes of action underlying the alleged torts on March 29, 2004, the date he signed his application to Lexington for $300,000 worth of insurance coverage. The insurance companies argue that the tort allegations in Farr’s complaint filed on November 7, 2007, approximately three and one-half years after he had notice of the policy limits, are barred by the two-year statute of limitations. We agree.

Each of Farr’s tort claims is governed by the two-year statute of limitations set forth in § 6-2-38(l). See Boyce v. Cassese, 941 So.2d 932, 943-44 (Ala.2006) (applying the two-year statute of limitations set forth in § 6-2-38 to bar claims of fraud and conspiracy to defraud); Auto-Owners Ins. Co. v. Abston, 822 So.2d 1187, 1194 (Ala.2001) (noting that “any fraud claim must be brought within two years of the accrual of the claim. Ala.Code 1975, § 6-2 — 38(Z)”); and Booker v. United American Ins. Co., 700 So.2d 1333, 1339 (Ala.1997) (applying the two-year statute of limitations set forth in § 6-2-38 to bar claims of negligence and wantonness). The statute of limitations began to run on Farr’s alleged tort claims when Farr signed the application to Lexington for insurance coverage on March 29, 2004, and was effectively put on notice of the coverage. See Liberty Nat’l Life Ins. Co. v. Ingram, 887 So.2d 222, 227 (Ala.2004) (holding that the statute of limitations in § 6-2-38 had begun to run on the insured’s tort claims when he received his insurance policy, effectively putting him on notice of his claims). Therefore, the tort claims asserted in Farr’s complaint, filed more than three years after March 29, 2004, were barred by the two-year statute of limitations.

In his brief on appeal, Farr argues that the statute of limitations was tolled by various events, namely Lexington’s paying Farr $50,000 on January 19, 2006, and facts surrounding additional negotiations between the parties at that time. However, Farr provides no legal authority to support his claim. In University of South Alabama v. Progressive Insurance Co., 904 So.2d 1242, 1247-48 (Ala.2004) this Court held:

“Rule 28(a)(10), Ala. R.App. P., requires that arguments in an appellant’s ... brief contain ‘citations to the cases, statutes, other authorities, and parts of the record relied on.’ The effect of a failure to comply with Rule 28(a)(10) is well established:
“ ‘It is settled that a failure to comply with the requirements of Rule 28(a) ([10]) requiring citation of authority for arguments provides the Court with a basis for disregarding those arguments:
“ ‘ “When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court’s duty nor its function to perform an appellant’s legal research. Rule 28(a) ([10]); Spradlin v. Birmingham Airport Authority, 613 So.2d 347 (Ala.1993).”
‘City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998). See also McLemore v. Fleming, 604 So.2d 353 (Ala.1992); Stover v. Alabama Farm Bureau Ins. Co., 467 So.2d 251 (Ala.1985); and Ex parte Riley, 464 So.2d 92 (Ala.1985).’
“Ex parte Showers, 812 So.2d 277, 281 (Ala.2001). ‘[W]e cannot create legal arguments for a party based on undeli-neated general propositions unsupported by authority or argument.’ Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala.1992).”

Therefore, we will not consider Farr’s tolling argument on appeal.

Next, Farr alleges that the entry of a summary judgment by the circuit court on his breach-of-contract and bad-faith claims was in error. Farr argues that the policy was a “replacement value policy” and that, based on the value of the house at the time it was destroyed by Hurricane Ivan and despite the policy limit of $300,000, Lexington was obligated to pay the full amount it would cost to replace the house. Farr’s breach-of-contract argument is premised on his assertion that the policy limits were increased by an oral contract entered into by Sanspree, on behalf of Farr, and Orange Beach and/or Gulf Agency, on behalf of Lexington. Farr argues that, based on the increased policy limits, Lexington breached the policy by paying him only $50,000, rather than the cost of replacing the house. Farr alleges that the house was worth at least $568,000 — the cost of the renovations Farr had completed on the house — and that Lexington breached the policy by failing to pay to have the house replaced.

The only evidence to support Farr’s assertion that the policy limits were increased by an oral contract between San-spree, representing Farr, and Orange Beach and/or Gulf Agency, representing Lexington, is the affidavit of Sanspree. Sanspree’s affidavit states, in pertinent part:

“Later in the summer of 2004, after Dr. Farr received his policies for his home (flood and wind), Dr. Farr expressed concern that his beach residence was underinsured based upon the remodeling and upgrades in materials on the beach property and asked if I would contact Orange Beach ... and The Gulf Agency to ensure that he had adequate coverages covering his property. I agreed to do so and Dr. Farr subsequently provided me with detailed copies of receipts and cancelled checks directly related to the remodeling and upgrades to the beach home located in Orange Beach, Alabama, for the period of 1998 through 2004. In the middle to latter part of August of 2004, I presented copies of those receipts and canceled checks to Kevin McCarron and Jo-Jo McCarron in Orange Beach and also presented copies of the same to Terri Mantay at The Gulf Agency in Montgomery.
“At each of the above meetings, I specifically requested an increase of $250,000.00 in homeowner’s insurance coverage to cover any damages caused by wind on Dr. Farr’s beach home and an increase in flood coverage of $250,000.00 to cover any damage caused by flood and water to Dr. Farr’s beach home. During the meeting with Terri Mantay, Ms. Mantay and I reviewed Dr. Farr’s initial policies, the policies’ coverage limits, discussed the location of the property, the fact that the property was not used as a rental property and discussed how much the additional premiums would be to increase Dr. Farr’s coverages as set forth above. I reviewed the receipts and canceled checks with Ms. Mantay and Ms. Mantay told me that The Gulf Agency had the authority to bind the coverage for the additional limits without having to involve Lexington or having to fill out an additional application because it was within The Gulf Agency’s underwriting limits. Ms. Mantay told me that she would increase the coverages immediately on the wind and flood insurance coverages and told me that the increase in coverage was bound and would take effect as of that day. I paid the additional premium on behalf of Dr. Farr for the increased premium costs associated with the increased limits and I departed the offices of The Gulf Agency.”

As noted above, the insurance companies filed motions to strike Sanspree’s affidavit. The circuit court granted their motions, setting forth its reasoning at the hearing on the summary-judgment motions:

“THE COURT: This is what I can’t understand. If you read the complaint, it talks in terms of representations made in March of 2004. And Mr. Sanspree’s affidavit, all he wants to talk about is something that happened in August of 200[4], You never amended the complaint to discuss anything about a representation that occurred in August of 200[4],
“[Farr’s trial counsel]: Well, Judge, number one, that’s not a verified complaint
“THE COURT: Well, it’s the one we’re going to trial on Monday.
“[Farr’s trial counsel]: Well, on the amended complaint. When that first complaint was drawn up, I don’t know who signed the complaint. Okay.
“THE COURT: Well, it is what it is.
“[Farr’s trial counsel]: But I don’t think that, in regard to whatever the evidence whatever the evidence is subsequently produced, I think that [Lexington] has filed some counterclaims. And I think most everybody did on the basis that we’re going to amend our complaint to conform to the evidence.
“THE COURT: Not with me, you’re not — Let me tell you what I’m going to do. I’m going to grant summary judgment. I’m going to strike the affidavit. That’s not an affidavit. It’s an amendment to the complaint. You’re adding a totally different lawsuit by bringing in a bunch of allegations made in 200[4], not a one of which your witness, [Farr], testified to in his deposition. He doesn’t say anything about a new contract in August of '0[4].”

The circuit court granted the insurance companies’ motions to strike Sanspree’s affidavit on the basis that it was, in actuality, an attempt to amend the complaint.

In his brief before this Court, Farr argues that the circuit court erred in striking Sanspree’s affidavit, but he fails to address the circuit court’s reasoning for doing so. Instead, Farr addresses the reasoning set forth in the insurance companies’ motions to strike Sanspree’s affidavits. Farr has failed to provide this Court with any legal argument as to why he believes that the circuit court erred in striking Sanspree’s affidavit as an attempt to amend the complaint. Therefore, we affirm the circuit court’s ruling granting the insurance companies’ motions to strike Sanspree’s affidavit. See Rule 28(a)(10), Ala. R.App. P.; and University of South Alabama, supra. As a result, there is no basis for Farr’s second breach-of-contract argument.

Moreover, the circuit court did not exceed its discretion in striking San-spree’s affidavit as an impermissible attempt by Farr to amend his complaint. As the circuit court noted in denying this attempt to amend his complaint, Farr’s attempt came 12 days before the case was to go to trial. Rule 15(a), Ala. R. Civ. P., governs amendments to pleadings. It provides, in pertinent part:

“Unless a court has ordered otherwise, a party may amend a pleading without leave of court, but subject to disallowance on the court’s own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such amendment shall be freely allowed when justice so requires. Thereafter, a party may amend a pleading only by leave of court, and leave shall be given only upon a showing of good cause.”

(Emphasis added.) In Boros v. Baxley, 621 So.2d 240 (Ala.1993), we explained:

“Although Rule 15(a) itself calls for liberal amendment, this Court has held consistently that ‘the grant or denial of leave to amend is a matter that is within the discretion of the trial court and is subject to reversal on appeal only for an abuse of discretion.’ ”

621 So.2d at 245 (citations omitted). Thus, “Rule 15, [Ala. R. Civ. P.], is not carte blanche authority to amend a complaint at any time.” Stallings v. Angelica Uniform Co., 388 So.2d 942, 947 (Ala.1980). “[U]n-due delay in filing an amendment, when it could have been filed earlier based on the information available or discoverable, is in itself ground for denying an amendment.” Puckett, Taul & Underwood, Inc. v. Schreiber Corp., 551 So.2d 979, 984 (Ala.1989). “[I]f the court determines ... that a party has had sufficient opportunity to state a claim ... but has failed to do so, leave to amend may properly be denied.” Walker v. Traughber, 351 So.2d 917, 922 (Ala.Civ.App.1977).

Farr’s breach-of-contract claim must fail because there is no evidence to support his assertion that the policy limits were ever increased. In fact, Farr makes an alternative argument in his brief before this Court to attempt to address such a determination: “Assuming arguendo, that Farr’s policy limits were not increased, then the [insurance companies] failed in their duty to procure adequate insurance on Farr’s behalf thereby causing Farr damages.” Farr’s brief, at p. 51. It is undisputed that the appraisal was the only information provided the insurance companies concerning the value of the house and that the policy limits were set accordingly. Farr agreed to the policy limits by signing the application. Any duty incumbent upon the insurance companies in establishing the policy limits were satisfied and were agreed to by Farr. Thus, we construe the quote from Farr’s brief not as an allegation that Lexington breached the policy as it was originally agreed to, but only as that policy was allegedly amended. However, as discussed above, there is no evidence to support Farr’s claim that the policy was amended. Therefore, the circuit court’s judgment granting the insurance companies’ summary-judgment motions is affirmed as to Farr’s allegation that Lexington had breached the policy by not paying Farr benefits under the wind-damage portion of the policy. Further, concerning Farr’s argument that the insurance companies had “failed in their duty to procure adequate insurance on Farr’s behalf,” as discussed above, Farr’s tort claims are barred by the two-year statute of limitations.

Farr also argues, in relation to his breach-of-contract claim, that Lexington is “not entitled to claim as a set off to the damages [it] caused, amounts paid by a collateral source completely unrelated to [its] wrongdoing.” Farr’s brief, at p. 42. However, Farr raises this argument for the first time on appeal; thus, we will not consider it. See Totten v. Lighting & Supply, Inc., 507 So.2d 502, 503 (Ala.1987).

Alternatively, however, Farr alleges that Lexington breached the policy by failing to pay him the $20,000 worth of contents coverage he had under the policy. Attached to his motion opposing the insurance companies’ summary-judgment motions, Farr included evidence indicating that he had suffered at least $29,548.95 worth of damage to the contents of the house. Farr argues on appeal that Lexington breached the policy by failing to pay Farr under the contents portion of the policy. Lexington fails to address this claim in its brief.

Lexington paid Farr $50,000 under the policy as its portion of the damage sustained to the house. Lexington did not pay Farr any amount under the contents portion of the policy. Farr produced substantial evidence that he had suffered at least $29,548.95 worth of damage to the contents in the house. Therefore, even though Assurant Solutions paid Farr the flood-insurance policy limit of $20,000 for the damage to his contents, the undisputed evidence indicates that Farr suffered at least $29,548.95 worth of damage to his contents and that Lexington did not pay Farr under the contents portion of the policy. Therefore, we reverse the circuit court’s judgment insofar as it held that Lexington had not breached the policy by failing to pay Farr any proceeds under the contents provision of the policy.

Next, Farr also argues on appeal that the circuit court’s judgment granting Lexington’s summary-judgment motion on Farr’s bad-faith claim was in error. This Court set forth the elements of a bad-faith-refusal-to-pay claim in National Security Fire & Casualty Co. v. Bowen, 417 So.2d 179 (Ala.1982):

“[T]he plaintiff in a ‘bad faith refusal’ case has the burden of proving:
“(a) an insurance contract between the parties and a breach thereof by the defendant;
“(b) an intentional refusal to pay the insured’s claim;
“(c) the absence of any reasonably legitimate or arguable reason for that refusal (the absence of a debatable reason);
“(d) the insurer’s actual knowledge of the absence of any legitimate or arguable reason;
“(e) if intentional failure to determine the existence of a lawful basis is relied upon, the plaintiff must prove the insurer’s intentional failure to determine whether there is a legitimate or arguable reason to refuse to pay the claim.
“In short, plaintiff must go beyond a mere showing of nonpayment and prove a bad faith nonpayment, a nonpayment without any reasonable ground for dispute. Or, stated differently the plaintiff must show that the insurance company had no legal or factual defense to the insurance claim.”

417 So.2d at 183. See also Chavers v. National Sec. Fire & Cas. Co., 405 So.2d 1 (Ala.1981).

Based on our conclusion that Lexington did not breach the policy by paying Farr $50,000 for the damage to the house, Farr cannot maintain his bad-faith claim based on that particular breach-of-contract claim. Farr could, however, maintain his bad-faith claim against the insurance companies concerning Lexington’s failure to pay the contents portion of the policy. However, Farr has failed to direct this Court to any evidence indicating that Lexington operated in bad faith in its failure to pay Farr under the contents portion of the policy. In fact, Farr fails to present any argument on appeal concerning his bad-faith claim based on Lexington’s breach of the contents portion of the policy; thus, we will not consider it on appeal. See Rule 28(a)(10), Ala. RApp. P.; and University of South Alabama, supra. Therefore, the circuit court’s judgment granting Lexington’s summary-judgment motion concerning Farr’s bad-faith claim is affirmed.

Conclusion

Based on the foregoing, we affirm the circuit court’s judgment insofar as it entered a summary judgment for the insurance companies on Farr’s tort claims, his breach-of-contract claim against Lexington as that claim relates to Lexington’s payment under the policy for the wind damage to the house, and his bad-faith claim. We reverse the circuit court’s judgment in favor of Lexington on Farr’s breach-of-contract claim as to Lexington’s failure to pay the contents portion of the policy, and we remand the cause for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

STUART, SHAW, and WISE, JJ., concur.

BOLIN, J., concurs in the result.

COBB, C.J., recuses herself.

      . At some point during the litigation, Orange Beach became McCarron Insurance Group, Inc. However, in the interest of clarity, we will continue to refer to this entity as "Orange Beach.”

      . Apparently Orange Beach had ordered its own appraisal of the property when Farr requested insurance coverage. However, a mistake was made regarding that appraisal, and the parties relied on the Holyfield appraisal in setting the policy limits.

      . The insurance companies filed a motion to strike Sanspree’s affidavit, which the trial court granted.

      . The $50,000 payment from Lexington to Farr was initially characterized as an "advance.” However, following Lexington's investigation into Farr’s claim, Lexington determined that there was no basis for any further payments.

      . Farr also filed a second amended complaint adding State Farm Insurance Company as a party and alleging a claim of breach of contract against it. That claim is not the subject of this appeal and remains pending in the circuit court.

      .The hearing on the insurance companies’ summary-judgment motions actually occurred on August 26, 2009.

      . We note that the policy was actually issued and delivered to Farr on March 25, 2004, four days before the date Farr signed the application for the policy. There appears to be no evidence explaining why the policy was issued before the application was signed. However, the parties are in agreement as to these dates.

      . We note that Farr does address the circuit court’s reasoning for striking Sanspree’s affidavit in his reply brief. However, “[w]here an appellant first cites authority for an argument in his reply brief, it is as if the argument was first raised in that reply brief, and it will not be considered.” Steele v. Rosenfeld, LLC, 936 So.2d 488, 493 (Ala.2005).

      . Farr alleges that the deposition testimony of Allen also supports Farr’s assertion that an oral contract increasing the policy limits existed. However, nothing in Allen’s deposition testimony indicates that an oral contract was made, that the policy limits would be increased, or that Sanspree had actually paid additional premiums on Farr’s behalf.

      . Farr included two other arguments we do not address on appeal: 1) that “the house was not under construction or unoccupied when the insurance application was signed” and 2) that "there is no absolute rule that regardless of the factual circumstances, a surplus lines broker can never have an agency relationship with an insured.” Farr's brief, at pp. 39-42 and 58-59, respectively. However, based on our decision on other issues, we pretermit discussion of those arguments.