author: DICKINSON, Presiding Justice,

text:
    Peggy CRIST, Theresea Edwards, Patricia Guthrie, Jane Hamilton, Helen Heard, Bertha Mixon, Jennie Parker, James Reed, Jr., Glenda Rivers, Pamela Robinson, Karen Thornton, Virginia Townsend, Vera Wells, Mary Whittington, Linda Williams and Peggy Winters v. Paul Kelly LOYACONO and E. Scott Verhine.
    No. 2009-CA-01547-SCT
    Supreme Court of Mississippi.
    April 21, 2011.
    Rehearing Denied July 28, 2011.

      David L. Minyard, Oxford, Tiffany Leigh Kilpatrick, attorneys for appellants.
    Glenn Gates Taylor, Christy Michelle Sparks, Ridgeland, attorneys for appellees.
    Before WALLER, C.J., DICKINSON, P.J., and KITCHENS, J.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. Sixteen former clients sued two lawyers who had represented them in mass-tort litigation, claiming the lawyers had breached their fiduciary duty by prematurely settling their cases in order to maximize attorney fees. Responding to a motion for summary judgment, the former clients produced a witness — a mass-tort lawyer whom the defendant lawyers had associated, and then fired — who testified that he had settled numerous similar cases for much more than the former clients received. The lawyer also produced a settlement document he had prepared, in part, by using another lawyer’s matrix as a go-by.

¶2. The trial judge — finding that the lawyer’s testimony and matrix were inadmissible hearsay, and that the clients were required to, but could not, prove they would have won their cases at trial — granted summary judgement. We hold that the clients were not required to prove they could have won their underlying case in order to pursue their breach of fiduciary claim against their lawyers, and that the trial court erred in excluding the lawyer’s testimony.

FACTS

¶ 3. Additional facts and background of this twelve-year-old case, on its second trek to this Court, were previously reported.

¶4. Upon learning that attorney Keith Morgan was amassing clients in litigation against American Home Products Corp. (“AHP”), attorney E. Scott Verhine advised Morgan that he could produce some clients. Verhine, together with attorney Paul Kelly Loyacono, signed up fifty-five clients who claimed to have used AHP’s Fen-Phen product.

¶ 5. Verhine and Loyacono then associated Morgan, agreeing that he would receive seventy-five percent of the attorney fees generated by the fifty-five clients. When Morgan filed suit, neither Loyacono nor Verhine signed the complaint as attorneys of record.

¶ 6. After roughly a year, Morgan and his law firm engaged AHP in settlement negotiations concerning hundreds of their clients, including the fifty-five provided by Loyacono and Verhine. Shortly thereafter, Loyacono and Verhine contacted AHP and began secretly negotiating a settlement of their fifty-five clients’ cases. Of the fifty-five original clients, thirty-four (including appellants) accepted settlement offers obtained directly by Loyacono and Verhine. Under these settlements, Loyaco-no and Verhine received one-hundred percent of the attorney fees.

¶7. Morgan developed a “settlement matrix” which classified his clients into thirteen graduated levels based on injury type and severity. A $39-million settlement was reached with AHP. Of the twenty-one clients that did not accept settlements negotiated by Loyacono and Verhine, some were part of the settlement negotiated by Morgan et al. According to Morgan’s sworn testimony and his matrix, the plaintiffs that did accept the settlements negotiated by Loyacono and Ver-hine would have received larger awards had they remained part of the Morgan settlement group.

¶ 8. The plaintiffs that did accept the offers negotiated by Loyacono and Verhine filed suit against them alleging, among other things, breach of fiduciary duty in the manner in which they conducted the settlement negotiations and apportioned the proceeds.

¶ 9. Following discovery, Loyacono and Verhine moved in limine to exclude Morgan’s settlement matrix and any testimony from Morgan about his settlement negotiations on the grounds that it was hearsay and lacked supporting documents. Loya-cono and Verhine also moved for summary judgment on all the claims, arguing in relevant part that the plaintiffs had not produced any evidence that they would have succeeded in the underlying case against AHP, which Loyacono and Verhine argued was essential to any legal-malpractice claim. They also argued that the exclusion of the Morgan settlement matrix and related testimony meant that the plaintiffs no longer had any proof of damages, another essential element.

¶ 10. The trial court agreed, finding that Morgan’s matrix and testimony “were based, to a degree, on another attorney’s matrix” and were “inadmissible on the grounds of hearsay, lack of any supporting documentation, the failure to designate Morgan as an expert, and speculation.” The court then granted the defendants’ motion for summary judgment because “Plaintiffs were required to make out a prima facie case that, if Plaintiffs had not entered into the settlements at issue, they would have prevailed on their underlying claims against AHP, and they would have been awarded a monetary sum greater than the settlements negotiated by Defendants.”

¶ 11. The plaintiffs appealed, presenting two issues:

1. Whether a legal-malpractice claim based on a breach-of-fiduciary-duty theory requires proof of success and a larger award in the underlying action; and
2. Whether the trial court abused its discretion in excluding the Morgan settlement matrix and all of Morgan’s testimony relating to settlement negotiations.

ANALYSIS

1. Whether a Legal-Malpractice Claim Based on a Breach-of-Fiduciary-Duty Theory Requires Proof of Success and a Larger Award in the Underlying Action.

¶ 12. In reviewing a trial court’s grant or denial of summary judgment, the well-established standard of review is de novo. Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The evidence must be viewed in the light most favorable to the party against whom the motion has been made.

¶ 13. Review of a trial court’s suppression of evidence is reviewed under an abuse-of-discretion standard. Even where an abuse of discretion on an eviden-tiary issue is found, “this Court ‘will not reverse unless the error adversely affects a substantial right of a party.’ ”

A client’s breach-of-fiduciary-duty claim against an attorney does not require proof that the client would have won at trial.

¶ 14. It is true — and well established — that a plaintiff in a negligence-based malpractice action must establish proximate cause by the so-called “trial-within-a-trial” test. That is to say, the client “must show that, but for [his] attorney’s negligence, he would have been successful in the prosecution or defense of the underlying action.” But we have never required a legal-malpractice plaintiff alleging breach of fiduciary duty to establish that, but for the breach, the plaintiff would have won the underlying case. Rather, the proof of proximate cause in such cases is “to be tailored to the injury the client claims and the remedy he elects.” This means that expert testimony is not always necessary.

¶ 15. The law recognizes a clear distinction between allegations of legal malpractice based on negligence (sometimes called a breach of the standard of care) and those based on breach of fiduciary duty (sometimes called a breach of the standard of conduct). When a legal-malpractice claim is based on an allegation of breach of fiduciary duty, the plaintiff must establish (1) the existence of an attorney-client relationship; (2) the acts constituting a violation of the attorney’s fiduciary duty; (3) that the breach proximately caused the injury; and (4) the fact and extent of the injury.

¶ 16. This dichotomy is consistent with the differing characters of these two theories. Because attorneys are afforded a degree of professional autonomy, proof of success in the underlying case is an appropriate test for proximate cause in a negligence-based action because it ensures that attorneys are only held professionally liable where their failures to adhere to the standard of care actually impacted the plaintiffs interests in the case. But an attorney’s breach of his fiduciary duties to his client may cause injury to the client entirely separate from the merits of the underlying case.

¶ 17. To illustrate, suppose a lawyer receives a client’s settlement check in a doubtful claim, but procrastinates negotiating the check. Meanwhile, the defendant files bankruptcy, the check is no longer good, and the client receives nothing. It is no defense to the client’s lawsuit against the procrastinating lawyer that the client can not prove that he would have won at trial because the underlying claim was doubtful. The same is true here. The fiduciary-duty claims against Loyacono and Verhine survive, even absent a showing that the plaintiffs would have won the underlying Fen-Phen lawsuit against AHP.

Morgan’s testimony was not hearsay, and was sufficient to establish a genuine issue of material fact as to whether the clients would have received a larger settlement.

¶ 18. The defendant-attorneys argue in the alternative that summary judgment was proper because the plaintiffs’ only proof of damages — Keith Morgan’s settlement matrix and related testimony— is inadmissible. But even if we agreed that the trial court properly excluded the matrix, it was not the only probative evidence of damages. In his deposition, Morgan testified regarding the amounts actually received by his clients from AHP. This testimony was not an out-of-court statement, and was sufficient to create a factual question for the jury.

¶ 19. Because the standard applied by the trial court was overly restrictive, we reverse the grant of summary judgment as to the fiduciary-duty claims and remand the matter to the trial court for a ruling on the summary-judgment motion applying the proper standard.

2. Whether the Trial Court Erred in Excluding Keith Morgan’s Matrix and Testimony.

¶ 20. The trial court ruled in limine that the settlement matrix prepared by Keith Morgan, along with all “related testimony” was inadmissible hearsay, inasmuch as it was partly based on a similar matrix prepared by another attorney. The court also apparently considered the matrix and related testimony to be opinion evidence within the scope of M.R.E. 702, and ruled that since Morgan was not designated as an expert, he could not give such opinions. The plaintiffs argue that the excluded evidence was fact, not opinion, and that Morgan’s testimony was based on personal knowledge and therefore not hearsay.

¶21. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. So for an out-of-court statement to be admissible, it must either be offered for some other proper purpose, or fall into one of the enumerated exceptions to the general hearsay rule. For the purposes of analysis, the written matrix is considered separately from Morgan’s related testimony.

A. Admissibility of the Morgan Settlement Matrix

1122. The Morgan Matrix is obviously an out-of-court statement. The document shows the thirteen classifications and corresponding settlement amounts that Morgan used to distribute the $39-million payment received from AHP. Therefore, if offered for the purpose of establishing the fact of those classifications and settlement amounts, it would certainly constitute hearsay. The plaintiff-appellants did not argue in the trial court—nor do they argue on appeal—that the Morgan Matrix nevertheless falls into one of the hearsay exceptions that would allow the matrix to be admitted into evidence, so it is not necessary to continue the inquiry. The trial judge did not abuse his discretion in ruling that the Morgan Matrix was hearsay and therefore inadmissible as evidence.

¶ 23. We emphasize that this holding is limited solely to the issue of the admissibility of the Morgan Matrix as evidence. We offer no opinion as to the admissibility of the matrix for other purposes, such as those contemplated by the exceptions listed under M.R.E. 803.

B. Admissibility of Morgan’s Testimony Regarding Settlement

1Í24. Unlike the matrix, Morgan’s in-court testimony about how he handled the settlement was not hearsay since it was not an out-of-court statement. Although Morgan stated in his deposition that he devised his matrix, in part, by referring to a similar matrix prepared by another attorney, the mere existence of the document would not prevent Morgan from testifying about how he personally determined the settlement values of each of his clients’ cases and the amounts of his previous settlements. Based on the arguments presented at trial and here, Morgan’s deposition testimony was not inadmissible hearsay.

¶25. The question then is whether Morgan needed to be qualified as an expert to offer his testimony. Under our rules, expert witnesses may offer opinion testimony where “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue....”

¶ 26. Typically, an expert witness is an “outsider” to the case who evaluates the evidence in an attempt to explain it to the jury. Before experts may deliver opinions to the jury, experts must be vetted by the court and must satisfy certain criteria. By contrast, a fact witness may be virtually any competent person whose testimony is based on personal knowledge. Morgan was not qualified as an expert witness, but his testimony was based on personal knowledge. In other words, Morgan’s proffered testimony was a matter of fact rather than opinion, and the trial court erred in excluding it.

¶27. The defendants argue (and the trial court found) that Morgan’s estimation of the value of his clients’ claims was “speculative” opinion testimony that may only be offered by an expert witness under M.R.E. 702. But the plaintiffs were not offering Morgan’s testimony to establish his opinion of the value of their claims. Rather, it was being offered to show how Morgan in fact distributed the settlement money to his clients. While those decisions may have been based on Morgan’s opinions at the time, the decision-making process and the resultant matrix was, and is, a matter of fact.

¶ 28. From the vantage point of trial, Morgan’s past settlement-negotiation process is a matter of fact within Morgan’s personal knowledge and the rules provide no reason why he should not be allowed to testify about it. Therefore, it was not hearsay nor was it necessary to qualify Morgan as an expert before he could testify about the matter.

¶ 29. But even if Morgan’s testimony did constitute opinion rather than fact, our rules allow lay opinion testimony of this nature. Under Rule 701, a lay witness may offer opinion testimony that is “(a) rationally based on the perception of the witness, (b) helpful to the clear understanding of the testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Of these three requirements, the first two are easily satisfied. Morgan’s settlement-negotiation process is clearly based on Morgan’s perception and was helpful to the determination of a fact in issue — indeed, the trial court essentially ruled that the plaintiffs had no case without it. The question then turns on whether Morgan’s opinions were “based on scientific, technical, or other specialized knowledge” usually reserved for experts.

¶ 30. On this point, the defendants actually make the strongest argument in favor of the admissibility of Morgan’s testimony. They observe that “Morgan has admitted that he was the person who exercised his discretion to decide how much of AHP’s block/lump sum settlement monies would be allocated to a given client of his.” And later:

At each point in [the process of creating his settlement matrix], Morgan came up with his opinions on, e.g., how many injury classification levels there should be, what should be the criteria for each level, which of his clients fell into which level, and what did he think was the value or worth of a claim that fell within a given level, and how much money he was going to allocate to a given level and a client in that level.

¶ 31. The defendants further emphasize that Morgan devised his matrix without consulting any medical experts.

¶ 32. Obviously, an opinion as arbitrary as the defendants suggest would never satisfy the strict requirements of expert witnesses under Rule 702 and our caselaw. And this is precisely why Rule 701 applies. As long as the opinion is not based on the kind of technical expertise required by Rule 702, a lay witness may offer opinion testimony if the other parts of the rule are met, as they are here. Since Morgan’s discretionary disbursement of the settlement funds to his clients did not implicate the kind of specialized knowledge implicated by Rule 702, to the extent his testimony constitutes opinion, it was admissible under Rule 701. Therefore, the trial court erred in excluding Morgan’s testimony regarding how he devised the settlement matrix and how he disbursed the settlement funds to his clients.

CONCLUSION

¶ 38. The trial court erred in applying a negligence standard to the plaintiffs’ claims of breach of fiduciary duty, and summary judgment is reversed and remanded as to the breach-of-fiduciary-duty claims. The evidentiary ruling is reversed to the extent it excluded Morgan’s in-court testimony regarding the settlement negotiation and payment process he employed. The case is remanded to the trial court for further proceedings consistent with this opinion.

¶ 34. REVERSED AND REMANDED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ, CONCUR. KING, J., NOT PARTICIPATING.

      . Our first review of this case involved a statute-of-limitations issue, and we determined some of the plaintiffs were time-barred. See Channel v. Loyacono, 954 So.2d 415 (Miss. 2007). The instant case presents the same underlying legal-malpractice claims of the plaintiffs whose claims were not time-barred by Channel.

      . Now known as Wyeth, Inc.

      . Emphasis original.

      . Miss. R. Civ. P. 56(c).

      . Duckworth v. Warren, 10 So.3d 433, 436-37 (Miss.2009) (internal citations and quotations of cases omitted).

      . Haggerty v. Foster, 838 So.2d 948, 958 (Miss.2002).

      . Id. (quoting In re Estate of Mask, 703 So.2d 852, 859 (Miss. 1997); Terrain Enters., Inc. v. Mockbee, 654 So.2d 1122, 1131 (Miss.1995)). See also M.R.E. 103(a).

      . Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1215 (Miss.1996).

      . Singleton v. Stegall, 580 So.2d 1242, 1245 (Miss.1991).

      . See, e.g., Lane, 873 So.2d 92, 99 (Miss. 2004) ("[W]hen the claim is for breach of the standard of conduct [i.e. breach of fiduciary duty], we conclude that lack of expert testimony should not preclude the issue from being heard by a jury.”).

      . See, e.g., Lane, 873 So.2d at 98 ("legal malpractice may be a violation of the standard of care ... or the breach of a fiduciary duty”) (citing Hartford Acc. & Indem. Co. v. Foster, 528 So.2d 255, 284 (Miss. 1988) (Prather, J., dissenting)).

      . Foster, 528 So.2d at 284-85 (citing Hickox v. Holleman, 502 So.2d 626, 634 (Miss.1987); Hutchinson v. Smith, 417 So.2d 926 (Miss. 1982); Thompson v. Erving's Hatcheries, Inc., 186 So.2d 756 (Miss. 1966)).

      . The plaintiff-appellants concede that summary judgment was properly granted as to their negligence-based claims.

      . M.R.E. 801(c).

      . M.R.E. 702.

      . M.R.E. 601.

      . M.R.E. 602.

      . Emphasis in original.

      . Emphasis in original.


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Gary TUBBY, II, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00596-COA.
    Court of Appeals of Mississippi.
    Oct. 26, 2010.
    Rehearing Denied April 19, 2011.

      Julie Ann Epps, Canton, attorney for appellant.
    Office of Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and BARNES, JJ.
   MYERS, P.J.,

for the Court:

¶ 1. Gary Tubby II was convicted by a jury sitting before the Neshoba County Circuit Court for burglary of a dwelling with intent to steal in violation of Mississippi Code Annotated section 97-17-23 (Supp.2009). The circuit court sentenced Tubby to eleven years in the custody of the Mississippi Department of Corrections. Tubby’s post-trial motion for a new trial was denied, and he perfected this appeal. Tubby herein claims that: (1) the circuit court erred in allowing the State to amend the indictment to correct the name of the owner of the dwelling; (2) there was pros-ecutorial misconduct during his trial; and (3) the jury’s verdict is against the overwhelming weight of the evidence. Finding no error, we affirm the Neshoba County Circuit Court’s judgment of conviction and sentence.

FACTS

¶ 2. On August 8, 2008, Tubby and Willie Wayne Tubby (Willie) were arrested by the Neshoba County Sheriffs Department after witness Richard Hamilton reportedly found the two men in the process of burglarizing the mobile home of Jeff Hames. Both men were indicted together on one count of burglary of a dwelling with intent to steal and subsequently tried together. Willie, however, eventually was discharged from the case based on the circuit court’s finding that the State had presented insufficient evidence in its case against him.

¶ 3. At trial, Denise Goodin testified that on August 8, at approximately midday, she was at her home in Neshoba County, Mississippi, when she noticed a vehicle sitting in her driveway. The vehicle sat there idling for a few seconds and then backed out of her driveway and drove down the road. It reappeared a few seconds later, slowly passed by her house, and turned onto a nearby “cut-off” road. Concerned, Goodin called her husband at work, who then called Goodin’s father, Hamilton, who lived close by to Goodin’s house. Goodin next noticed two men wearing dark-colored clothes walking down the road. Goo-din called Hamilton, who at this point was already in his truck driving toward her house. Believing that the vehicle she saw belonged to one of these men, Goodin told Hamilton where she thought the vehicle was located and instructed him to get its tag number. Hamilton soon spotted the parked vehicle and wrote down its tag number. He then called Goodin and told her to call “911” because it appeared to him that “someone was up to no good.”

¶4. On a hunch, Hamilton decided to check on Hames’s mobile home located across the road from Goodin’s house. Hamilton pulled in Hames’s driveway and parked in front of the mobile home. He got out of his truck and walked around to the back of the mobile home where he first saw a man, whom he later identified as Willie, standing approximately five feet away from the mobile home’s back door. He then saw another man, whom he identified as Tubby, coming out of the mobile home’s back door. Hamilton, who had a pistol with him, told the men to stop, “or [he would] shoot.” Tubby and Willie ran, and Hamilton fired a number of shots into the air. Both men continued to run, and Hamilton gave chase. According to Hamilton, Willie dove off into a “thicket,” and Tubby ran down the road. Hamilton did not catch Tubby, but he found Willie “laying [sic] in the roadbed” and detained him until the authorities arrived. Tubby was apprehended by sheriffs deputies a short time later.

¶ 5. After his arrest, Investigator Ralph Sciple read Tubby his Miranda rights, to which Tubby affirmed he understood. According to Investigator Sciple, at no time did Tubby invoke his right to counsel or to remain silent; nor did Investigator Sciple perceive Tubby to be under the influence of alcohol or narcotics. When Investigator Sciple questioned Tubby about the incident at the mobile home, Tubby made an oral statement “that he had been riding with Willie Tubby and that it was his idea to break into something and steal something to sell.” Three days later, Investigator Sciple questioned Tubby once more at the Neshoba County Jail, and he again informed Tubby of his Miranda rights, verbally and in writing on a waiver-of-rights form, which Tubby signed. Tubby made another statement, which Investigator Sci-ple wrote down and which Tubby also signed. The statement was entered into evidence and reads as follows:

I had been drinking Friday 8-8-08 and don’t remember much. I remember that me and Wayne Tubby were together and it was my idea to break into something to get something to sell for money. Me and Wayne went to this trailer and I opened the back door with my knife and then someone came around the trailer and said stop and I ran.

¶ 6. Hames was called by the State to testify, and he stated that he was the owner of the mobile home in question. Hames told the jury that in addition to his home in Neshoba, he owns another home in Pelahatchie, Mississippi, where he spends a considerable amount of time to be closer to his doctor. Hames said he was in Pelahatchie when he heard about the incident and immediately drove to Neshoba to check on his home. Upon inspection, Hames said he noticed that his back door had been pried opened, but he did not find anything missing from inside the home.

¶ 7. Tubby was the only person to testify during his case-in-chief. Tubby told the jury that on August 8, 2008, he and Willie had noticed some “AC’s” in the front of a mobile home. He said Willie walked up to the mobile home’s front door and knocked to inquire about them. At which point, Tubby walked behind the mobile home “to urinate.” Tubby said that while standing there, he thought he noticed someone pass by the window of the “trailer’s back door,” so he went up to the door and knocked. All of a sudden a guy, whom Tubby indicated was Hamilton, came from out of nowhere and said “Hey” and “started shooting.” Tubby testified that at no point did he “go inside the trailer,” nor did he “take anything from the trailer.” When questioned about the oral statement he made to Investigator Sciple on August 8, Tubby indicated that he did not tell Investigator Sciple he had gone to the mobile home to steal something, and he told the jury that “the arresting officer had roughed [him] up a little bit, [and threw him] around.” When asked about the written statement he had made to Investigator Sciple later at the jail, Tubby said that Investigator Sciple wrote something down and told him to sign it. Tubby claimed he did so without reading what Investigator Sciple had written.

¶ 8. The jury found Tubby guilty of burglary of a dwelling, and Tubby now appeals. Additional facts, as necessary, will be related during our discussion.

DISCUSSION

1. Indictment

¶ 9. The purpose of an indictment is to put a defendant on notice of the charges against him so that he is able to prepare an adequate defense. Evans v. State, 916 So.2d 550, 551 (¶ 5) (Miss.Ct. App.2005). “All that is required is that the indictment provide ‘a concise and clear statement of the elements of the crimes charged.’” Id. at 551-52 (¶5) (quoting Williams v. State, 445 So.2d 798, 804 (Miss.1984)). Courts may amend indictments to correct defects of form, but only the grand jury may correct defects of substance. Jones v. State, 912 So.2d 973, 976 (¶ 9) (Miss.2005). Whether an indictment is defective is an issue of law, which we review de novo. Moten v. State, 20 So.3d 757, 759 (¶ 4) (Miss.Ct.App.2009).

¶ 10. Tubby’s indictment in its original form alleged, in parts, that on August 8, 2008, Tubby “did ... feloniously and bur-glariously break and enter a certain building located in Neshoba County, Mississippi, commonly known as ... a mobile home of the property of Jeff Haynes, with the ... felonious and burglarious intent to take, steal and carry away certain goods, wares and chattels located in said dwelling and being the personal property of Jeff Haynes ... in violation of [s]ection 97-17-23....” Through Hames’s testimony at trial, the State learned it had incorrectly spelled Hames’s last name as “Haynes” in the indictment. At the close of its case, the State made a motion to amend the indictment to reflect the true spelling of the property owner’s name, which the circuit court granted over Tubby’s objection.

¶ 11. Tubby argues that this was reversible error, as the circuit court imper-missibly allowed the State to make a substantive change to his indictment during the course of trial. He maintains on appeal that because the name of the owner whose dwelling he was accused of breaking and entering was misspelled, his indictment was fatally defective. And he reasserts the claim he made to the circuit court that this factor prejudiced his defense because it required his counsel “to comb the countryside for a non-existent owner of the dwelling.”

¶ 12. As this Court noted in Stradford v. State, 771 So.2d 390, 395 (¶14) (Miss.Ct.App.2000), there are “[m]ountains of case law out of our Mississippi courts [which] speak to this issue of amending indictments to reflect the true names of parties.” (Citing Evans v. State, 499 So.2d 781 (Miss.1986); Bingham v. State, 434 So.2d 220 (Miss.1983); Evans v. State, 425 So.2d 1043 (Miss.1983); Jones v. State, 279 So.2d 594 (Miss.1973); McDole v. State, 229 Miss. 646, 91 So.2d 738 (1957); Gillespie v. State, 221 Miss. 116, 72 So.2d 245 (1954); and Burson v. State, 756 So.2d 830 (Miss.Ct.App.2000)). Mississippi Code Annotated section 99-17-13 (Rev.2007) explicitly permits the amendment of an indictment where the change is to an immaterial matter and the defendant will not be prejudiced in his defense. That section states in part:

[I]t shall and may be lawful for the court before which the trial shall be had, if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defense on the merits, to order such indictment and the record and proceedings in the court to be amended according to the proof, whenever it may be deemed necessary by the court to amend such indictment....

Miss.Code Ann. § 99-17-13. The test used in determining whether the amendment is one of form or substance is as follows:

Whether or not a defense under the indictment or information as it originally stood would be equally available after the amendment is made and whether or not any evidence [the] accused might have would be equally applicable to the indictment or information in the one form as in the other; if the answer is in the affirmative, the amendment is one of form and not of substance.

Stradford, 771 So.2d at 396 (¶ 16) (citations omitted). Section 99-17-13 provides the following examples of amendments made to indictments that are considered to be form rather than substance:

The name or description of any person, body politic or corporate, therein stated or alleged to be the owner of any property, real or personal, which shall form the subject of any offense charged therein, or in the name or description of any person, body politic or corporate, therein stated or alleged to be injured or damaged; or intended to be injured or damaged, by the commission of such offense or in the Christian name or surname, or both, or other description whatever, of any person whomsoever, therein named or described, or in the ownership of any property named or described therein, or in the description of any property or thing....

Stradford, 771 So.2d at 396 (¶ 16).

¶ 13. Here, we find the amendment to Tubby’s indictment was a matter of simple form. The amendment effected no material change in the offense Tubby was accused of committing. The elements of the offense — the burglarious breaking and entering a dwelling of another, and the felonious intent to commit some crime therein — were sufficiently set forth in the indictment. See Miss. Code Ann. § 97-17-23. The indictment put Tubby on sufficient notice that he was being charged with the burglary of someone else’s dwelling. See Triplett v. State, 910 So.2d 581, 583 (¶ 6) (Miss.Ct.App.2005) (“[T]o convict under [section] 97-17-23, one must demonstrate breaking and entering of a dwelling of another.”) (emphasis added). And despite the misspelling of Hames’s last name, it is quite apparent that Hames was the person whom the grand jury intended to identify in the indictment. See Parchman v. State, 279 So.2d 602, 603 (Miss.1973) (“[C]hanges which conform the indictment so as to correctly name the person intended by the grand jury are allowable.”).

¶ 14. Tubby, nevertheless, argues that this “factor” caused his defense counsel to “have to comb the countryside for a nonexistent” person, which thereby prejudiced his defense. We find this argument unavailing. First, assuming this was true, Tubby did not articulate to the circuit court, in the slightest, how his defense would have changed had Hames been located and presumably interviewed. Except for providing the correct spelling of his last name, Hames offered nothing that was not already available to Tubby through other sources, himself included, with regard to the State’s accusation. Second, as exhibited by the photographs submitted into evidence by his defense counsel showing different views of the mobile home in question, Tubby’s counsel knew of the mobile home’s location and, obviously, had conducted an investigation of the State’s claim, on Tubby’s behalf.

¶ 15. In keeping with Stradford, and the vast number of preceding cases supporting it, this issue is without merit.

2. Prosecutorial Misconduct

¶ 16. Tubby prefaces his argument on this issue by pointing out that the State’s entire case centered on the testimony of Hamilton, who was the only person that claimed Tubby was inside the mobile home. Tubby explains that his defense at trial was that Hamilton had unlawfully discharged his firearm; therefore, Hamilton had a motive to make such a claim so as not to subject himself to prosecution. He, thus, claims that the principal issue with regard to the jury’s determination in this matter was witness credibility. Specifically, the jury had to decide if Tubby was telling the truth when he stated that he did not enter the mobile home or if Hamilton was telling the truth when he said he saw Tubby inside the mobile home. Tubby contends that the prosecutor interfered with that determination by vouching for Hamilton’s credibility as a witness and attacking Tubby’s credibility, and also by making arguments based on facts not in evidence.

¶ 17. According to Tubby, the most serious wrongdoing occurred during closing arguments when the prosecutor said that “[Tubby] didn’t steal anything. Do you know why? Thank God for good neighbors. Mr. Hamilton isn’t facing any charges[,] and he never will face any charges stemming from this incident.” Another occurred when the prosecutor said, “Tubby had never done anything illegal; but he was drinking under age that day.” Tubby also submits that during the defense’s case-in-chief, the prosecutor sought to undermine Tubby’s credibility by repeatedly asking him to state if other witnesses were “lying.”

¶ 18. Tubby acknowledges that his trial counsel did not object to any of the complained of errors and that our review is, therefore, limited to the plain error standard. He further submits that even though each error might not be reversible standing alone, this Court can consider each in determining cumulative error.

¶ 19. As our supreme court has stated many times, “issues not presented to the trial court for lack of contemporaneous objection are procedurally barred, and error, if any, is waived.” Goff v. State, 14 So.3d 625, 655 (¶ 118) (Miss.2009) (citations omitted). This bar will be lifted only in exceptional circumstances so as to prevent a miscarriage of justice. Id. “Such circumstances are required for [our appellate courts] to consider plain error, despite failure to preserve such error.” Id.

¶ 20. Based on our review of the record before us, we do not find the comments complained of, either individually or cumulatively, are so egregious as to have interfered with the fairness of Tubby’s trial. Accordingly, this assignment of error lacks merit.

3. Weight of the Evidence

¶ 21. On this assignment of error, Hamilton’s testimony that Tubby was inside the mobile home is the only evidence Tubby brings into issue. Tubby argues that Hamilton’s testimony is contrary to the physical facts and is too unworthy of belief to sustain a burglary conviction. Thus, he contends the jury’s verdict is against the overwhelming weight of the evidence.

¶ 22. A motion for a new trial, based on the weight of the evidence, will be successful only when the verdict “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 reviewing court first views all of the evidence in the light most favorable to the verdict. Id. If the evidence clearly preponderates against the verdict, the proper remedy is to vacate the verdict and order a new trial. Id.

¶ 23. Specifically, Tubby contends that based upon Hamilton’s testimony, Hamilton’s view would have been obstructed by the mobile home’s back door. Because the back door opens outward and southward, toward the direction Hamilton had approached the rear of the mobile home from, Hamilton could not have seen Tubby inside the trailer.

¶ 24. Review of the record reveals, however, that Hamilton testified the back door was wide open when he approached the rear of the mobile home. Hamilton said he saw one person standing outside the mobile home, that being Willie. He next saw Tubby come out of the mobile home’s back door. When questioned on cross-examination, Hamilton told the jury there are steps leading up to the mobile home’s back door, and he said Tubby did not stop at those steps, rather “he jumped out of the trailer and [ran].”

¶25. Considering this evidence in the light most favorable to the verdict, we find that it was of sufficient weight to establish that Tubby had “entered” Hames’s mobile home. The credibility of Hamilton’s testimony was solely for the jury to weigh and consider. Miller v. State, 983 So.2d 1051, 1054 (¶ 14) (Miss.2008). Accordingly, this issue is without merit.

¶ 26. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF ELEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHOBA COUNTY.

KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ„ CONCUR. ROBERTS, J., CONCURS IN RESULT ONLY.


author: MAXWELL, J.,

text:
    Tonya MELTON, Charles David Melton, Jr., Paula Dawn Harris and James Kendall Harris, Appellants v. SMITH’S PECANS, INC., a Mississippi Corporation, Alfred Randolph Smith, Jr., Appellees.
    No. 2009-CA-00920-COA.
    Court of Appeals of Mississippi.
    Feb. 8, 2011.
    Rehearing Denied May 3, 2011.

      John R. McNeal Jr., Jackson, attorney for appellants.
    J. Tucker Mitchell, W. Shan Thompson, Latoya Tate Jeter, Ridgeland, attorneys for appellees.
    Before MYERS, P.J., ISHEE, ROBERTS and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. In March 2009, the Hinds County Circuit Court ordered Tonya Melton, Charles David Melton Jr., Paula Dawn Harris, and James Kendall Harris (the Meltons) to execute documents settling their personal-injury lawsuit against Smith’s Pecans. The Meltons refused to comply and, after Smith’s Pecans moved for contempt, filed a motion under Mississippi Civil Procedure Rule 60(b) to set aside the enforcement order. On reconsideration, the circuit court weighed the Meltons’ testimony — that they neither consented to the settlement nor authorized their attorney to accept a settlement— against their immediate actions after they learned them attorney had settled their claims. Because the Meltons did not raise the issue of lack of consent or authority until after the March enforcement hearing, the circuit court found they failed to rebut the presumption that their attorney had the apparent authority to settle with Smith’s Pecans.

¶ 2. We find the circuit court did not abuse its discretion in denying the Mel-tons’ Rule 60(b) motion. Further, we find it did not commit manifest error in citing the Meltons for contempt and appointing the circuit clerk to execute the settlement documents on the Meltons’ behalf. Therefore, we affirm.

FACTS

A.The Settlement Negotiations

¶ 3. The Meltons sued Smith’s Pecans for personal injuries based on alleged chemical exposure. The week before the scheduled trial, the attorneys for both parties reached a settlement over the phone. Smith’s Pecans agreed to pay $80,000 in exchange for the Meltons’ promise to execute a release and pay all their own medical expenses, including any Medicaid and Medicare liens. On January 7, 2009, Smith’s Pecans’ attorney emailed the Mel-tons’ attorney, Michael Brown, to confirm the terms of the settlement and ask to whom the settlement check should be addressed. Brown replied by e-mail the next day, January 8. In this e-mail, Brown provided his tax identification number for the check, confirmed the Meltons had granted him settlement authority, and notified Smith’s Pecans he was working with the Meltons to sort out Medicaid and Medicare lien issues.

¶ 4. Trial was cancelled, and on January 15, Smith’s Pecans mailed Brown an $80,000 check, an agreed order of dismissal, and a release for the Meltons to execute. But the Meltons refused to negotiate the check or sign the release. On January 22, through an e-mail from Brown to Smith’s Pecans’ attorneys, the Meltons voiced their concerns about the settlement, primarily that Tonya’s ex-husband claimed he had a lien on the settlement for Tonya’s back child support.

B. The March Hearing on the Motion to Enforce Settlement

¶ 5. Smith’s Pecans filed a motion to enforce the settlement. The circuit court heard the motion on March 6. At the time of the enforcement hearing, Brown had a pending motion to withdraw his representation in this matter. Nevertheless, Brown represented the Meltons in this hearing. Although present, the Meltons did not testify at this hearing or object to Brown’s continued representation or the arguments he made on their behalf.

¶ 6. The enforcement hearing focused on the effect of Tonya’s ex-husband’s potential lien on the enforceability of the settlement. Finding Tonya had been aware of her child-support obligation before settling with Smith’s Pecans, the circuit court entered an order directing the Meltons to execute a release of all claims and enter an agreed judgment of dismissal. The circuit court entered its order on the docket on March 9, giving the Meltons fourteen days to comply.

C. The May Hearing on Parties’ Cross-Motions

¶ 7. Because the Meltons did not comply with the circuit court’s order within fourteen days, on March 25, Smith’s Pecans filed a motion for contempt, asking the circuit court to direct the circuit clerk to execute the settlement documents on their behalf, a remedy provided under Mississippi Civil Procedure Rule 70(a). On March 18, Brown filed a motion to withdraw based on the Meltons’ having terminated his services on March 16. The Meltons’ new counsel responded to the contempt motion with a Rule 60(b) motion to set aside the order enforcing settlement. The Meltons argued they should be relieved from the order because (1) their previous attorney did not adequately advise them of the settlement; (2) they did not consent to the terms of the settlement; and (3) they did not have the opportunity to testify at the March enforcement hearing.

¶8. On May 8, the circuit court heard both the contempt and Rule 60(b) motions. The Meltons called Brown as an adverse witness, who testified the Meltons authorized him to settle for $80,000 and that a settlement had been reached. All four Meltons testified that they had not given settlement authority and had not received adequate advice from Brown to enter a settlement.

¶ 9. The circuit court weighed the Mel-tons’ testimony against their actions following the January 8 settlement. It found the Meltons were aware of the March enforcement hearing but failed to speak up at the hearing concerning Brown’s lack of authority to settle. Instead, they allowed Brown to argue in their presence that the sole reason justifying not enforcing the settlement was the potential lien by Tonya’s ex-husband on her portion of the settlement funds. It was only after the court entered the order enforcing settlement and Brown filed a motion to withdraw that the Meltons first claimed they did not give Brown settlement authority. Applying the rebuttable presumption that attorneys have the apparent authority to settle their client’s claims, the circuit court found the Meltons failed to show Brown lacked authority. On May 27, the circuit court entered an order denying their motion to set aside enforcement. By separate order, also entered May 27, the circuit court cited the Meltons for contempt and appointed the circuit clerk to execute the release and an agreed judgment of dismissal on their behalf.

¶ 10. On June 5, the Meltons filed their notice of appeal.

DISCUSSION

A. Orders on Review

¶ 11. Because the Meltons filed their notice of appeal almost ninety days after the entry of the March 9 order enforcing the settlement, we lack jurisdiction to consider directly the validity of this order. M.R.A.P. 4(a) (requiring the notice of appeal be filed within thirty days after the date of the entry of the order appealed from); M.R.A.P. 2(a) (requiring dismissal of untimely filed notices of appeal); Bank of Edwards v. Cassity Auto Sales, Inc., 599 So.2d 579, 582 (Miss.1992) (“[F]ailure to file a timely appeal leaves this Court without jurisdiction to consider the case.”). Filing a motion for relief under Rule 60(b) did not alter the thirty-day jurisdictional requirement. Bank of Edwards, 599 So.2d at 582 (quoting M.R.C.P. 60(b)).

¶ 12. Therefore, we limit our review to the two orders entered within thirty days prior to the Meltons’ June 5 notice of appeal: (1) the denial of the Meltons’ Rule 60(b) motion and (2) the grant of Smith’s Pecans’ motion for contempt and execution of the settlement documents under Rule 70(a), both filed on May 27. See Saint v. Quick, 24 So.3d 395, 401 (¶ 20) (Miss.Ct. App.2009).

B. The Denial of Rule 60(b) Motion to Set Aside

1. The Circuit Court’s Application of Rule 60(b)

¶ 13. The Meltons argue the circuit court should have provided relief from the order enforcing settlement (a) because there was no underlying settlement agreement and (b) because they did not have the opportunity to testify about their attorney’s lack of settlement authority at the March enforcement hearing.

¶ 14. Mississippi Rule of Civil Procedure Rule 60(b) provides relief from a final order, “[o]n motion and upon such terms as are just,” for five enumerated reasons and a sixth “catchall” provision — “any other reason justifying relief from the judgment.” M.R.C.P. 60(b). The Meltons did not specify which subsection(s) applied to their motion for relief. Applying the Mel-tons’ claims to the language of Rule 60(b), we find only subsection six, the catchall, provides a potential avenue of relief.

¶ 15. In Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984), the Mississippi Supreme Court announced the standard for trial courts when considering a motion filed under Mississippi Civil Procedure Rule 60(b):

When ruling on such motions a balance must be struck between granting a litigant a hearing on the merits with the need and desire to achieve finality in litigation. Further, Rule 60(b) motions should be denied where they are merely an attempt to relitigate the case.... Rule 60(b) provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances, and that neither ignorance nor carelessness on the part of an attorney will provide grounds for relief. Additionally, it has been said that a party is not entitled to relief merely because he is unhappy with the judgment, but he must make some showing that he was justified in failing to avoid mistake or inadvertence[.] ... [Rjelief from a judgment is not to be granted under Rule 60(b) simply because its entry may have resulted from incompetence or ignorance on the part of an attorney employed by the party seeking relief.

(Internal citations and quotations omitted). Applying this standard, the circuit court found no extraordinary circumstances justifying setting aside its previous order.

¶ 16. Instead, the circuit court found Brown, based on his representation of the Meltons throughout the litigation, had the apparent authority to enter into a binding settlement. Terrain Enters., Inc. v. W. Cas. & Sur. Co., 774 F.2d 1320, 1322 (5th Cir.1985) (applying Mississippi law); Parmley v. 84 Lumber Co., 911 So.2d 569, 573 (¶ 19) (Miss.Ct.App.2005). He also found the Meltons had failed to meet their burden to show Brown actually lacked authority. Terrain, 774 F.2d at 1322. Although they testified they did not give Brown authority to settle, the circuit judge found their actions during and after the settlement negotiations contradicted their claims. The evidence showed the Meltons were aware of the settlement soon after Brown accepted it. They let two weeks pass without notifying Smith’s Pecans that they did not consent to the settlement. When presented the cheek and settlement documents, they refused to execute them, not because of Brown’s lack of authority, but because they learned Tonya’s ex-husband claimed he was entitled to a portion of the settlement. The circuit judge found these actions supporting Brown’s authority-more persuasive than the Meltons’ subsequent testimony.

¶ 17. The circuit court was also unpersuaded by their argument that they were denied the opportunity to testify at the enforcement hearing. ■ The circuit court noted the Meltons were present at the hearing, were aware that Brown was still representing them (despite his pending motion to withdraw), and were apparently satisfied with the sole argument for not enforcing the settlement that Brown presented — the potential lien by Tonya’s ex-husband, which the circuit court found to be irrelevant.

2. Our Review

¶ 18. “[A]n appeal from denial of [a Rule 60(b) ] motion brings up for review only the order of denial itself and not the underlying judgment.” Overbey v. Murray, 569 So.2d 303, 305 (Miss.1990) (citations omitted). When reviewing a grant or denial of a Rule 60(b) motion, our review is limited. Stringfellow, 451 So.2d at 221. “[T]he only question asked on appeal is whether the trial court’s ruling on such a motion amounts to an abuse of discretion.” Accredited Sur. & Cas. Co. v. Bolles, 535 So.2d 56, 58 (Miss.1988) (citing Stringfellow, 451 So.2d at 220). Given this limited review, we find the circuit court did not abuse its discretion.

a. Apparent Authority to Settle

¶ 19. The underlying question of whether a settlement was reached, based on a meeting of the minds between the parties and apparent authority by their attorneys, is a question of fact. Northrop Grumman Ship Sys., Inc. v. Ministry of Def. of the Republic of Venez., 575 F.3d 491, 499 (5th Cir.2009) (The boundaries of an attorney’s agency authority is a question of fact, not law.); Vaughn v. Rettig, 912 So.2d 795, 799 (¶ 21) (Miss.2005) (citations omitted) (finding whether there is a meeting of the minds is an evidentiary question); Anderson v. Kimbrough, 741 So.2d 1041, 1045 (¶ 12) (Miss.Ct.App.1999) (“The existence of a contract and its terms are questions of fact to be resolved by the fact-finder, whether a jury or a judge in a bench-trial.”). On reconsideration, the circuit court found the Meltons’ testimony failed to rebut the presumption their attorney had the apparent authority to enter into a binding settlement. See Parmley, 911 So.2d at 573 (¶ 19) (finding evidence of offer and acceptance supported decision that attorney exercised apparent authority to enter settlement).

¶20. The circuit court focused on the Meltons’ actions leading up to and after the formation of the settlement agreement and determined Brown had apparent authority to act. This was a proper application of Mississippi law based upon apparent authority in agency relationships. E.g., Eaton v. Porter, 645 So.2d 1323, 1325 (Miss.1994) (looking to conduct of the principal to determine that apparent authority existed). Because the circuit court’s decision is supported by substantial evidence and the appropriate law, we find the circuit court did not abuse its discretion in refusing to set aside its previous decision that Brown entered into a settlement binding on the Meltons.

b. The Meltons’ Testimony

¶ 21. The Meltons argue the denial of an opportunity to testify at the March enforcement hearing was an alternative reason justifying setting aside the enforcement order. The circuit court disagreed. It found the Meltons were present at the March hearing and could have testified. Further, the circuit court allowed the Mel-tons to testify at the May reconsideration hearing and weighed their testimony in its decision to deny their requested relief.

¶ 22. On appeal, the Meltons argue Brown’s decision not to have them testify at the March hearing is evidence of Brown’s overall incompetence, which should prevent the settlement being enforced. But Brown’s alleged incompetence cannot be a basis for Rule 60(b) relief. Relief from an order will not be granted merely because “its entry may have resulted from incompetence or ignorance on the part of an attorney employed by the party seeking relief.” Stringfellow, 451 So.2d at 221 (finding “neither ignorance nor carelessness on the part of an attorney will provide grounds for relief’). The circuit court considered the Meltons’ testimony but concluded their contentions did not justify setting aside its previous decision that the Meltons had settled with Smith’s Pecans. Accordingly, we find the circuit court did not abuse its discretion by denying them Rule 60(b) relief on this ground.

C. The Citation for Contempt and Appointment of the Circuit Clerk to Execute the Settlement Documents

¶ 23. Although the Meltons specifically designated the contempt order in their notice of appeal, they failed to cite any authority in their brief for why the finding of contempt or the appointment under Rule 70(a) was improper. “[T]he failure to cite authority in support of an argument eliminates our obligation to review the issue.” Dampier v. State, 973 So.2d 221, 228 (1120) (Miss.2008). Procedural bar notwithstanding, we note that by implication, the Meltons argue the citation of contempt and appointment under Rule 70(a) to execute the settlement documents were improper because the underlying order enforcing settlement was erroneous. But the order enforcing settlement is not at issue in this appeal. Further, the failure to comply with a court’s order is not excused even by a later determination that the order was erroneous. Corporate Mgmt., Inc. v. Greene County, 23 So.3d 454, 469 (¶ 33) (Miss.2009). Unless the order is void ab initio, “one bound by it must either comply or gain relief from an appropriate court on the pain of contempt.” Id. (quoting Stacy v. Ross, 798 So.2d 1275, 1283 (¶ 34) (Miss.2001)).

¶ 24. Because the primary purpose of the contempt order was to enforce compliance with a previous order, the contempt is civil, and we review for manifest error. Corporate Mgmt., 23 So.3d at 466 (¶ 33) (distinguishing civil contempt from criminal contempt). “Regarding a determination of contempt, a trial court due to its temporal and physical proximity to the parties ‘is infinitely more competent to decide the matter.’ ” Id. at 466 (¶ 32) (quoting R.K. v. J.K, 946 So.2d 764, 777 (¶ 39) (Miss.2007)).

¶ 25. The order enforcing settlement directed the Meltons to execute the settlement documents within fourteen days. During those fourteen days, the Meltons did not move the court for a stay or additional time to comply, did not file a notice of appeal, and did not file a Rule 60(b) motion to set aside the order. Only after Smith’s Pecans moved for citation for contempt did the Meltons respond with a Rule 60(b) motion. Therefore, we find no manifest error in citing the Meltons for contempt.

¶ 26. We found no Mississippi cases addressing the application of Rule 70(a). But based on a plain reading of the rule, we find no error in granting Smith’s Pecans’ request that someone be appointed to execute the settlement documents. Rule 70(a) provides:

If a judgment directs a party ... to perform any other specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done has like effect as if done by the party.

M.R.C.P. 70(a). The settlement-enforcement order directed the Meltons to perform a specific act (execute the settlement documents) within a specific time period (fourteen days). And the record clearly reflects the Meltons did not comply with this order. Therefore, we find the circuit court properly exercised its discretion under Rule 70(a) to appoint the circuit clerk to execute the settlement documents.

CONCLUSION

¶ 27. Relief under Rule 60(b) is an extraordinary remedy limited to exceptional circumstances. Here, the circuit court found no exceptional circumstances justified setting aside the order enforcing settlement. Instead, it found the evidence the Meltons presented to support their Rule 60(b) motion failed to rebut the presumption their attorney had the authority to settle their claims. Finding the circuit court did not abuse its discretion in denying the Meltons’ motion, we affirm the order denying the Meltons’ motion to set aside the order enforcing settlement. Further finding the circuit court did not abuse its discretion in granting Smith’s Pecans’ motion, we affirm the order citing the Meltons for contempt and appointing the circuit clerk to execute the settlement documents.

¶ 28. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . All dates in this opinion refer to events occurring in 2009.

      . The Meltons do not argue: under subsection (1), Smith's Pecans, the adverse party, made any misrepresentations or committed fraud; under subsection (2), the order was the result of accident or mistake; or under subsection (5), the judgment has been satisfied. Although they argue they were denied the opportunity to present evidence at the March enforcement hearing, they do not argue, under subsection (3), this evidence was not discoverable at the time of the hearing or within ten days of the entry of the enforcement order. Finally, they do not argue, under subsection (4), the order itself is void. Instead, they argue the order is erroneous because the underlying settlement agreement is void. M.R.C.P 60(b)(l)-(5).


author: LEE, C.J.,

text:
    Brandon Charles SULLIVAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00012-COA.
    Court of Appeals of Mississippi.
    April 12, 2011.
    Rehearing Denied June 28, 2011.

      Leslie S. Lee, Jackson, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, Jackson, attorney for appel-lee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. A jury in the Jefferson Davis County Circuit Court found Brandon Charles Sullivan guilty of murder. Sullivan was sentenced to life in the Mississippi Department of Corrections. Sullivan filed post-trial motions, which were denied. Sullivan now appeals asserting that: his confession should have been suppressed, and the verdict is against the overwhelming weight of the evidence.

FACTS

¶ 2. At approximately 9:00 a.m. on December 6, 2006, Robert Dale Sullivan entered the home of his mother, Mary Lou Sullivan, on Albert Graves Road in Jefferson Davis County. Robert had been concerned about Mary Lou because she had missed an appointment that morning, and her truck was missing. On the way to Mary Lou’s house, Robert asked a neighbor, Billy Wayne Stewart, to accompany him. The men entered the house and found Mary Lou lying face down on the kitchen floor in a pool of blood. Dr. Steven Hayne, a forensic pathologist, testified that Mary Lou’s autopsy showed several types of injuries consistent with being produced by blunt force, with the most severe located on the back of her head. Mary Lou had a large bruise on the back of her head, extensive bruising on her face, five lacerations on the back of her head, two lacerations on the left side of her head, and two lacerations on the right side of her head. Mary Lou also had bruises and scrapes on her hands and arms consistent with defensive posturing. Dr. Hayne determined that Mary Lou died from the injuries to her head. It was estimated that Mary Lou had died between 7:00 p.m. and 9:00 p.m. on December 5th.

¶ 3. After the police arrived on the scene, it was determined that Sullivan, Robert’s son and Mary Lou’s grandson, was a possible suspect. Robert had seen Sullivan and another white male near the crime scene on December 5. Micah Forten-berry testified that on December 5th at approximately 6:00 p.m., he gave Sullivan a ride and dropped him off a little less than a mile from Mary Lou’s house. Sullivan had told Fortenberry that his car had broken down.

¶ 4. During the course of the investigation, Mary Lou’s missing truck was found in a wooded area. The authorities collected a 2x2 piece of wood with blood on it and another piece of wood wrapped in yarn also with blood on it. Testing determined that the blood found on the 2x2 matched Mary Lou’s blood sample. Authorities also searched Sullivan’s house where they discovered blood spatter on a pair of Sullivan’s overalls. Testing determined that the blood on the overalls matched Mary Lou’s blood sample. Several pieces of wood were recovered from the crime scene, as well as $20,000 in cash found in a shoe box in a closet.

¶ 5. Sullivan was arrested, read his rights, and interrogated by Roy Clingon and James Herzog, both special agents with the Mississippi Bureau of Investigation. Sullivan was interrogated at the Jefferson Davis County Sheriffs Department. In his first statement, Sullivan stated that Steven Polk had committed the murder, but he had taken the truck and the wood board and hidden them. However, Polk had an alibi and was not developed as a suspect. In his second statement, Sullivan stated that he had gotten a ride from someone and got out near Mary Lou’s house. Sullivan stated that he hid a 2x2 piece of wood in his shirt and entered Mary Lou’s house. Sullivan admitted to hitting her on the head with the 2x2 in order to steal her money, but he did not intend to kill her. Sullivan also admitted that he “freaked out” and kept hitting her over the head. Sullivan stated that he then grabbed a rifle, picked up the 2x2, and took Mary Lou’s truck. Sullivan later pawned the rifle for crack cocaine and left the truck and 2x2 in a wooded area. Sullivan also admitted that he sent his father, Robert, on a false errand in order to keep him away from Mary Lou’s house.

¶ 6. During trial, Sullivan asserted that Agents Clingon and Herzog coerced and threatened him into confessing to the murder. Sullivan testified that another man, Dwayne Altman, had killed Mary Lou. Sullivan testified that he had stepped outside Mary Lou’s house and heard a loud thump from inside the house. Sullivan said that Altman then exited Mary Lou’s house carrying the 2x2. Sullivan testified that he got scared and took Mary Lou’s truck. On cross-examination, Sullivan admitted that he knew Mary Lou kept cash in her house.

DISCUSSION

I. MOTION TO SUPPRESS

¶ 7. In his first issue on appeal, Sullivan argues that the trial court erred in denying his motion to suppress his statements to the authorities. Sullivan contends that he was coerced and threatened into confessing to the murder. In reviewing the trial court’s denial of Sullivan’s motion to suppress his confession, this Court “will only reverse the trial court’s determination of this issue when such determination is manifestly wrong .... or contrary to the overwhelming weight of the evidence.” Glasper v. State, 914 So.2d 708, 716 (¶ 21) (Miss.2005). When ruling on the admissibility of a confession, the trial court must determine, based on the totality of the circumstances, whether the confession was voluntarily and knowingly given and whether the defendant was given his Miranda rights. Scott v. State, 8 So.3d 855, 861 (¶ 23) (Miss. 2008).

¶ 8. Sullivan claims that Agents Clingon and Herzog induced him to confess by promises of a lenient sentence, namely that he would not receive the death penalty. Sullivan contends that one of the agents told him that a superior officer enjoyed watching people get the lethal injection. One of the agents purportedly described to Sullivan the physical effects he would suffer during the lethal injection. Sullivan also argues that he was placed in a cold cell without food or water for the majority of his detainment prior to his confession.

¶ 9. Agents Clingon and Herzog testified about Sullivan’s interrogation during the hearing on Sullivan’s motion to suppress. Agents Clingon and Herzog first interrogated Sullivan at approximately 1:30 p.m. on December 6th, the day after Mary Lou’s murder. According to the record, Sullivan was informed of his Miranda rights and signed a waiver of those rights at 1:36 p.m. Sullivan was questioned for approximately three hours, but his statements were not recorded until the last twenty minutes of his interrogation. Agent Herzog testified during the suppression hearing that they waited to videotape Sullivan’s statements because they were unsure what information they would be receiving from him. After doing some investigation into Sullivan’s first statement, the agents interrogated Sullivan again at 12:04 on the morning of December 7th. Sullivan was again informed of his Miranda rights and signed a waiver of those rights at 12:07 a.m. It was during this interrogation that Sullivan confessed to killing Mary Lou.

¶ 10. Agent Clingon testified during the suppression hearing that Sullivan appeared disheveled but was coherent and did not appear to be under the influence of alcohol or narcotics. In regard to Sullivan waiving his Miranda rights, Agent Clingon thought that Sullivan appeared to understand the questions and answered them coherently. When advised of his right to an attorney, Sullivan responded that he did not need an attorney. At no point during either interrogation did Sullivan invoke his right to remain silent. Agent Clingon further stated that: he did not promise Sullivan anything in return for confessing; he did not threaten Sullivan; and Sullivan never asked to stop the interrogation. Agent Clingon also stated that he never heard Agent Herzog promise Sullivan anything in exchange for confessing. At one point during the first interrogation, the agents provided Sullivan with chewing tobacco and water. Agent Clingon stated that Sullivan never asked for food.

¶ 11. Agent Herzog testified and corroborated Agent Clingon’s testimony. Agent Herzog stated that he never told Sullivan that his superior officer enjoyed watching lethal injections. Agent Herzog further testified that he did not tell Sullivan that the State would decline to seek the death penalty in return for his confession.

¶ 12. The trial court found that Sullivan’s statements during both interrogations “were freely, knowingly, and voluntarily given to the agents without any threats, coercion or offer of reward.” The State has the burden to prove the confession was voluntary. Scott, 8 So.3d at 861 (¶ 24). To make a prima facie case of voluntariness, the State meets the burden by offering “the testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward.” Bell v. State, 963 So.2d 1124,1134 (¶ 26) (Miss.2007) (citation omitted). The State met its burden to prove that Sullivan’s confession was voluntary. “Upon the State’s presentation of a prima facie case of admissibility, the burden shifted to [the defendant] to provide evidence to rebut the State’s assertion.” Holloway v. State, 809 So.2d 598, 604 (¶ 18) (Miss.2000). Sullivan failed to produce any evidence, through testimony or otherwise, that his confession was coerced; thus, we cannot find that the trial court erred in denying his motion to suppress his confession. This issue is without merit.

II. OVERWHELMING WEIGHT OF THE EVIDENCE

¶ 13. In his final issue on appeal, Sullivan argues that the verdict is against the overwhelming weight of the evidence. Sullivan contends that the State failed to admit competent evidence that proved he had committed the crime. “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).

¶ 14. Sullivan argues that without his confession, the State’s evidence was circumstantial. However, we have previously found that Sullivan’s confession was properly admitted. In addition to Sullivan’s confession, there was corroborating evidence, namely the bloody overalls found in Sullivan’s house. The blood spatter found on those overalls matched Mary Lou’s blood sample. Sullivan was also seen in the vicinity of Mary Lou’s house prior to her murder.

¶ 15. Sullivan’s other arguments amount to attacks on the credibility of the witnesses. It is well-settled law that the jury determines the credibility of witnesses and resolves conflicts in the evidence. Davis v. State, 866 So.2d 1107, 1112 (¶ 17) (Miss.Ct.App.2003).

¶ 16. We cannot find that to allow Sullivan’s conviction to stand would sanction an unconscionable injustice. This issue is without merit.

¶ 17. THE JUDGMENT OF THE JEFFERSON DAVIS COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JEFFERSON DAVIS COUNTY.

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

      . Miranda v. Arizona, 396 U.S. 868, 90 S.Ct. 140, 24 L.Ed.2d 122 (1969).


author: GRIFFIS, P.J.,

text:
    Laura M. YARBROUGH, Appellant v. Ann Morrison PATRICK, Appellee.
    No. 2010-CA-00391-COA.
    Court of Appeals of Mississippi.
    June 7, 2011.

      Harry J. Rosenthal, W.O. Chet Dillard, Jackson, attorneys for appellant.
    James Eldred Renfroe, Roy J. Perilloux, Jackson, attorneys for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. This case concerns ownership of certain real property and various certificates of deposit. Laura M. Yarbrough filed suit against her daughter, Ann Morrison Patrick, in the Hinds County Chancery Court. Laura alleged that Ann had obtained title to the assets by abuse of a confidential relationship or other wrongful means. Ann claimed that Laura had given her the assets as gifts. Following a trial, the chancellor entered a judgment in favor of Ann. On appeal, Laura argues that: (1) the chancellor erred when he found that Laura had failed to establish a confidential relationship between herself and Ann; (2) Ann failed to establish the elements of an inter vivos gift; and (3) equity should impose a constructive trust on the assets. We find no error and affirm.

FACTS

¶ 2. Laura was born on August 24, 1920. She was an eighty-nine-year-old widow at the time of trial. She had four children— Ann, Keith Morrison, Alethia Davis, and Talmadge Morrison. Keith lived next door to Laura. Alethia is a paranoid schizophrenic who lived in the house with Laura. The record is silent on Talmadge. Ann was married and lived apart from the family, although she visited frequently.

¶ 3. The evidence established that Laura owned a parcel of real property in Hinds County, Mississippi, and two parcels in Jackson County, Mississippi. The record contains two quitclaim deeds, both dated January 6, 2003, which purport to convey these properties from Laura to Ann.

¶ 4. In her testimony at trial, Laura denied signing these deeds and claimed her signature had been forged. Laura did not allege this forgery in her complaint. In fact, the complaint specifically stated that Laura “did execute such documents necessary to transfer” the properties to Ann. Ann testified that she and Laura went to Ann’s lawyer’s office where Laura signed the deeds. Ann claimed that Laura gave her the properties as gifts.

¶ 5. The record also contains tax receipts that show Ann paid the ad valorem taxes on these properties after 2003. The record also contains the declarations page from an insurance policy, dated January 10, 2005, which shows that Ann was the named insured on a homeowner’s policy that insured the Hinds County property.

¶ 6. The evidence also established that Laura inherited a good deal of cash from her late husband, Taz Morrison, when he died in 1990. Laura invested this cash in several CDs, which initially were titled in her name only. Ann was added as a joint owner on the CDs. Ann testified that Laura added her as an owner in 1999, while Laura testified that she had no knowledge of how Ann was added as an owner.

¶ 7. Sometime thereafter, Ann acquired sole ownership of at least some of the CDs. Ann testified that on a Sunday afternoon in 2001 Laura came to her. Laura said she wanted to give Ann some CDs as gifts. Laura stated that she had already given various gifts to her other children, but she had never given Ann anything. Also, Laura was tired of paying taxes and just wanted “it out of [her] name.” According to Ann, after that conversation, the two of them went to the bank where Laura, who was in complete control of the situation, gave Ann sole ownership of some of the CDs. The events at the bank were not explained in detail nor were any documents introduced to corroborate Ann’s story. Laura denied that she ever had the alleged conversation with Ann in 2001, and she also denied the alleged events at the bank had ever occurred.

¶ 8. Seven CD receipts were admitted into evidence that state the following:

Amount of Today’s Date Maturity Date Deposit
October 12, 1999 October 12, 2002 $10,000
October 21,1999 October 21, 2002 $20,000
November 17, 1999 November 17, 2002 $20,248.42 December 03, 1999 December 03, 2002 $24,628.37 December 03, 1999 December 03, 2002 $55,000 October 21,2002 June 21,2003 $30,007.32
November 20, 2002 November 20, 2005 $24,252.87

The receipts state that the owners of the CDs were “Laura L. Yarbrough or Ann Patrick.” The receipts also state: “When the conjunction ‘or’ appears between names, the [CD] shall be payable to any depositor named herein.”

¶ 9. Laura’s complaint in this case was filed on March 4, 2009, approximately seven years after most of these CDs had matured, yet there was no evidence produced to show what happened to the money in these CDs after the CDs had matured. These receipts admitted in evidence provide nothing but a snapshot in time.

¶ 10. In her complaint and her testimony, Laura made allegations that Ann wrongfully took sole ownership of some of these CDs, but it is not clear to which CDs Laura was referring or if she was referring to all of them. Ann’s testimony was that Laura had cashed in most of these CDs by the date of trial. Ann testified that she received only two of the CDs as gifts — the one dated November 17, 1999, for $20,248.42, and the one dated October 12,1999, for $10,000.

¶ 11. In complete contradiction with her earlier testimony that she never executed the deeds or gave Ann any of the CDs, Laura also testified that she transferred the assets to Ann in order to qualify for Medicaid. According to Laura, Ann persuaded her to do this. Laura stated: “[Ann] told me if I’d sign everything I had over to her she would get me on Medicaid.” Keith testified that, sometime around 2002, Ann talked to Laura about Medicaid eligibility. Keith testified: “[Ann] said, don’t worry about it, she was going to get mother on Medicaid.” Ann denied that she ever mentioned Medicaid to Laura or Keith.

¶ 12. At the conclusion of the trial, the chancellor entered a judgment in favor of Ann. Laura’s appeal was deflected to this Court for review.

STANDARD OF REVIEW

¶ 13. This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Sanderson v. Sanderson, 824 So.2d 628, 625-26 (¶ 8) (Miss.2002). Legal questions are reviewed de novo. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721 (¶ 5) (Miss.2002).

ANALYSIS

1. Did Ann and Laura have a confidential relationship?

¶ 14. The chancellor found that Laura failed to establish the existence a confidential relationship between herself and Ann at the time alleged gifts were made; therefore, the presumption of undue influence was not raised. Laura argues that this finding was in error.

¶ 15. With respect to inter vivos gifts, when it is shown that a confidential relationship existed between the donor and the donee at the time the gift was made, a presumption of undue influence is raised, and the burden shifts to the donee to rebut the presumption. Smith v. Smith, 574 So.2d 644, 651 (Miss.1990). A confidential relationship is akin to a fiduciary relationship, and it ‘“arises when a dominant, overmastering influence controls over a dependent person or trust justifiably reposed.’” Id. at 650 (quoting Mullins v. Ratcliff, 515 So.2d 1183, 1191-192 (Miss. 1987)). The party who claims the existence of the confidential relationship must establish it by clear and convincing evidence. In re Estate of Lane, 930 So.2d 421, 425 (¶ 12) (Miss.Ct.App.2005) (citations omitted).

¶ 16. This Court looks to the following factors to determine whether a confidential relationship exists:

(1) whether one person has to be taken care of by others, (2) whether one person maintains a close relationship with another, (3) whether one person is provided transportation and has their medical care provided for by another, (4) whether one person maintains joint accounts with another, (5) whether one is physically or mentally weak, (6) whether one is of advanced age or poor health, and (7) whether there exists a power of attorney between the one and another.

Id. at (¶ 13).

¶ 17. At trial, the testimony on this issue was limited. The following exchange occurred between Laura and Ann’s attorney on cross-examination:

Q: Now, in the year 2000, 2001, 2002, in those years there you were taking care of your business, weren’t you?
A: Right.
Q: And you drove your car, didn’t you? A: (No response.)
Q: You drove to the store and drove your car wherever you wanted to go, didn’t you?
A: I do now.
Q: You do now. If you needed to go to the doctor or the store, wherever you went, you went; is that right? A: Right.
Q: You took care of yourself?
A: That’s right.
Q: You cooked your food?
A: Right. Still do.
Q: Still do. You take care of all your clothing.
A: Right.
Q: Okay. Go to the doctor whenever you need to?
A: Right.

Then the following exchange occurred between Ann and her attorney on direct examination:

Q: Okay. In about this range of 2000, 2001, 2002, 2003, was your mother taking care of herself?
A: She was. She had some strokes in '04.
Q: Okay. So as far as — was she able to drive herself—
A: She was. But after she had the strokes in '04, she doesn’t trust herself to drive in Jackson. I take her to the doctor. She and my sister both.
Q: Was she able to take her medicine on time during that period of time?
A: My sister that lives with her says sometimes she gets her medicine mixed up. So I suggested she get a medicine box and fix it for her. But sometimes she still doesn’t take her medicine just exactly like she should.
Q: But she — during that period of time she was able to feed and clothe herself?
A: She was.
Q: Take care of her personal hygiene?
A: Right.
Q: Okay. So, as far as you know, she was — up to that point in time she was handling her own business; is that correct?
A: She was.
Q: Okay. What kind of relationship do you have with your mother?
A: We’ve always had a good relationship. Never had any problems.
Q: How would you characterize your mother as far as being a strong-willed person or a weak-willed person?
A: Very strong will.
Q: Does anybody ever bulldog your mother into doing anything she didn’t want to do?
A: Not on your life.

This was the only testimony at trial that went to the issue of whether a confidential relationship existed between Laura and Ann.

¶ 18. In her brief before this Court, Laura puts a lot of emphasis on the fact that she had a stroke in 2004 and that, after that stroke, Ann drove her to the doctor and made sure she was properly taking her medications. However, the pertinent question is whether a confidential relationship existed at the time the alleged gifts were made. See Estate of Lane, 930 So.2d at 426 (¶ 14). There was substantial evidence from which the chancellor could have found that the CDs were transferred to Ann in 2001 and that the real property was conveyed in 2003. Therefore, the stroke and its aftermath are not relevant to this inquiry.

¶ 19. Turning to the seven factors listed above and applying them to the facts as they existed at the time the alleged gifts were made, only three of the factors could conceivably point in the direction of a confidential relationship. Ann and Laura maintained a close relationship. They maintained joint accounts, as evidenced by the CDs titled in the names of “Laura L. Yarbrough or Ann Patrick.” And Laura was of advanced age. The other four factors argue against a confidential relationship. According to Laura’s own testimony, she took care of herself. She provided her own transportation. She saw to her own medical care. In addition, there was no evidence that she was mentally or physically weak. And Ann did not have Laura’s power of attorney.

¶ 20. We also note that the Mississippi Supreme Court has ruled that:

A deed from a parent to a child alone and of itself raises no presumption of undue influence since, in the absence of evidence to the contrary, the parent is presumably the dominant party. This is true even though the parent is aged, or aged and infirm.

Id. at 425 (¶ 11) (quoting Thomas v. Jolly, 251 Miss. 448, 454-55, 170 So.2d 16, 19 (1964)).

¶ 21. Based on the evidence produced at trial and the applicable law, the chancellor was not manifestly in error when he found that Laura failed to establish a confidential relationship by clear and convincing evidence. Accordingly, this issue is without merit.

2. Was Ann required to establish the elements of an inter vivos gift?

¶ 22. Laura next argues that Ann failed to prove that she was given the real property and CDs as inter vivos gifts. Laura correctly points out that, as a general rule, the donee bears the burden of proof. Normally, the donee must establish by clear and convincing evidence the following elements: (a) a donor competent to make a gift; (b) a voluntary act of the donor with donative intent; (c) that the gift was complete and not conditional; (d) delivery by the donor; and (e) that the gift was irrevocable. In re Estate of Ladner, 909 So.2d 1051, 1054 (¶ 9) (Miss.2004) (citation omitted). However, there are some special rules that apply to this case because the alleged gifts were real property and CDs.

¶ 23. With respect to the real property, a person who seeks to set aside a facially valid deed bears the burden of proof. Mullins, 515 So.2d at 1190. Here, the two deeds were facially valid. Therefore, it was Laura’s burden to establish some ground to set them aside.

¶ 24. In addition, whenever a CD is titled in the names of two or more persons, payable to any of the persons named, it is presumed that those persons are owners of the account. In re Last Will and Testament and Estate of Dunn v. Reilly, 784 So.2d 935, 942 (¶ 21) (Miss. 2001) (citing Madden v. Rhodes, 626 So.2d 608, 616 (Miss.1993)). “When an account is held jointly in the name of one depositor or another, ‘each depositor is allowed to treat joint property as if it were entirely his own.’ ” DeJean v. DeJean, 982 So.2d 443, 449-50 (¶ 14) (Miss.Ct.App.2007) (quoting Drummonds v. Drummonds, 248 Miss. 25, 31, 156 So.2d 819, 821 (1963)). That presumption of ownership may be overcome “‘upon proof of forgery, fraud, duress, or an unrebutted presumption of undue influence.’ ” Reilly, 784 So.2d at 942 (¶ 21) (quoting Madden, 626 So.2d at 617).

¶ 25. Here, the CDs were at one point titled in the names of “Laura L. Yar-brough or Ann Patrick,” and sometime thereafter Ann acquired sole ownership of some of the CDs. Therefore, it was Laura’s burden to disprove Ann’s right to the CDs.

¶ 26. In conclusion, Laura’s argument that Ann failed to establish the elements of an inter vivos gift by clear and convincing evidence must fail because the burden of proof was on Laura to disprove Ann’s rights to the real property and the CDs. Accordingly, this issue is without merit.

3. Should equity impose a constructive trust?

¶ 27. Lastly, Laura argues that equity should impose a constructive trust on the real property and the CDs for her benefit. She argues that Ann has acquired title to these assets by wrongful means. Specifically, Laura claims that she transferred the assets to Ann in order to qualify for Medicaid and that Ann persuaded her to do that.

¶ 28. The Mississippi Supreme Court has defined a constructive trust as follows:

A constructive trust is one that arises by operation of law against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy.

Alvarez v. Coleman, 642 So.2d 361, 367 (Miss.1994). The proponent of such a trust must show its necessity by clear and convincing evidence. Id. at 368.

¶ 29. Furthermore, to receive the aid of equity a claimant must have clean hands. Ellzey v. James, 970 So.2d 193, 195 (¶ 10) (Miss.Ct.App.2007). The clean-hands doctrine has often been invoked to deny relief to a claimant who had transferred property to another to defraud a governmental agency and then was disappointed to discover that the transferee refused to return the property. Id. at 196 (¶ 14); see also Collins v. Collins, 625 So.2d 786, 789-90 (Miss.1993); Walters v. Patterson, 531 So.2d 581, 584 (Miss.1988).

¶ 30. In Ellzey, a man deeded some mineral rights to his girlfriend in order to maintain his eligibility for Medicaid. Ell-zey, 970 So.2d at 198-94 (¶4). The man later filed suit and asked the chancellor to use his equitable powers to return the mineral rights to him. Id. at 194 (¶ 7). This Court affirmed the chancellor’s judgment denying relief, stating:

In this case, Ellzey transferred the mineral interests to James in order to conceal his assets from Medicaid.... Ellzey invoked the aid of the chancery court to remedy a problem created by his own fraudulent act. The chancellor appropriately held that Ellzey was not entitled to relief because he sought to use “the chancellor’s hands to draw equity from a source his own hands had polluted.”

Id. at 196 (¶ 14).

¶ 31. Here, Laura claims that she transferred her assets to Ann in order to qualify for Medicaid. She admittedly tried to conceal assets from a governmental agency in order to obtain benefits to which she was not rightly entitled. Her hands were unclean, and the chancellor was correct to deny her the aid of equity. Accordingly, this issue is without merit.

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

LEE, C.J., MYERS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT. RUSSELL, J., NOT PARTICIPATING.

      . Ann testified that Laura’s maiden name was Lewis and that Laura sometimes used "L” as her middle initial.