text:
    James Robin ROBINSON, Jr., Appellant v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 2009-CA-00864-COA.
    Court of Appeals of Mississippi.
    Oct. 19, 2010.
    Rehearing Denied Jan. 25, 2011.
    Eugene Coursey Tullos, Raleigh, attorney for appellant.
    William M. Dalehite Jr., Jackson, James Seth McCoy, attorneys for appellee.

      Before KING, C.J., ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court:

¶ 1. An automobile accident is the genesis of the underlying lawsuit, but on appeal, we are called upon only to decide whether the James Robin Robinson Jr. is entitled to insurance benefits on his sister’s policy with State Farm Mutual Automobile Insurance Company (State Farm). The trial court found that he was not because he was not a resident in her household nor she in his household and granted summary judgment. We find no error with the trial court’s judgment and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In September 2005, James lived with his parents and brother at 493 Smith County Road, outside Mize, Smith County, Mississippi. His sister, Christy Robinson Best, lived in a trailer approximately 100 yards across the road at 444 Smith County Road.

¶ 3. A discussion of Christy’s residency is important because at the time that her brother James had an accident on September 6, 2005, Christy had an insurance policy with State Farm which contained un-derinsured motorist coverage that would cover James if it were shown that Christy resided with her brother at 493 Smith County Road or he with her.

¶ 4. State Farm took Christy’s deposition in August 2008, and she was adamant that she was not living with her parents at 493 Smith County Road at the time of James’s accident; instead, she was living in a trailer home approximately 100 yards across the road at 444 Smith County Road. When her deposition was taken, Christy had divorced her husband Christopher Dewayne Best, and was living with her boyfriend and their daughter at 69 Mimosa Lane in Mount Olive, Mississippi, which is in Covington County. She said that she had lived there for approximately two years. Christy testified that she lived with her parents at 493 Smith County Road when she was growing up, but she had moved from their home to a trailer home approximately 100 yards across the road at 444 Smith County Road. When she and Best were dating, she moved in with him in Mendenhall, Mississippi; then they both moved back to 444 Smith County Road. She was married to Best for three years, and she testified that she considered 444 Smith County Road to be her residence. She filed for divorce in August 2005 and moved temporarily to Raleigh, Smith County, Mississippi with a girlfriend for approximately a month while her divorce was proceeding. Christy testified that at the time her brother had his accident, she was temporarily living in Raleigh, but she considered 444 Smith County Road to be her home address.

¶ 5. When asked about what she thought of her residence at 444, she stated:

Q. When you talk about your permanent home where all of your — the majority of your belongings and your personal effects [are] at 444?
A. Yes, sir.
Q. Was it your intent to — that this was your permanent home?
A. I intended that that was where I was going to live.

¶ 6. She said that after the accident, she moved a few personal belongings to her parents’ home to help take care of James, but she was firm in her testimony that she never resided in her parents’ home on a full-time basis, stating:

A. I went over there every day to help.
Q. To help her (their mother) with him?
A. To help my brother, because he cannot feed hisself [sic] by hisself [sic] or anything like that, so I would go over there every day and help, even after work or if I was off.
Q. But then again, once you finished that for the day, you would go back to 444?
A. Yes, sir.

¶ 7. After James recovered, Christy said she moved from 444 Smith County Road to her boyfriend’s house on Mimosa Lane in Mt. Olive; by this time, her divorce was finalized, and this was where she was living when her deposition was taken.

¶ 8. State Farm filed a motion for summary judgment based on its contention that James was not a resident of Christy’s household at the time of the accident. In its motion, State Farm stated that the driver of the utility trailer that hit James was ensured with State Farm and that the policy limits of $25,000 had been tendered to James. State Farm noted that James was covered by medical and short-term disability insurance through his employer. Also, two other insurance companies which were defendants, had paid James. However, State Farm’s motion for summary judgment asserted that Christy’s State Farm uninsured-motorist policy did not cover James because he was not a member of her household when the accident occurred nor was she a member of his household. Instead, State Farm stated that at the time of the accident, Christy was living temporarily with a friend in Raleigh, but she returned to her own residence at 444 Smith County Road after the accident. Further, State Farm asserted that Christy’s deposition showed that while she helped take care of her brother at their parent’s home, she always went back to her home across the street afterwards.

¶ 9. State Farm cited Mercer v. Progressive Gulf Insurance Co., 885 So.2d 61, 66-67 (¶ 22) (Miss.2004) for the proposition that when there is no genuine issue of material fact as to whether a person is a resident under an insurance policy, summary judgment is proper. The trial court heard the motion for summary judgment on February 9, 2009. State Farm offered Christy’s deposition testimony at the hearing. The circuit judge asked the attorney for James what James and Christy’s parents had said about Christy’s residence, and the attorney responded that he did not know as their testimonies had not been taken. The circuit judge found that the summary judgment motion was “tentatively sustained” for State Farm, but the judge gave James thirty days from February 6, 2009, in which to obtain counter-affidavits to support James’s contention. The order provided that if the counter-affidavits were not forthcoming, then the motion would be finally sustained and the case dismissed in favor of State Farm. On March 9, 2009, the circuit court entered an order which stated that James had not produced any counter-affidavits; thus, per the court’s previous order, summary judgment was granted in favor of State Farm.

¶ 10. On March 11, 2009, after the summary judgment had been entered in favor of State Farm, James filed a document styled response to motion for summary judgment that had affidavits attached from James’s mother, father, brother, and a man who claimed he was dating Christy; all swore in their affidavits that Christy was residing with her parents at the time of James’s accident.

¶ 11. This tardy filing by James caused State Farm to file a Supplemental Motion for Summary Judgment and Motion to Strike Plaintiffs Response as Untimely, Inadequate, and Unresponsive. Citing McMichael v. Nu-Way Steel and Supply, Inc., 563 So.2d 1371, 1375 (Miss.1990), State Farm argued that James could not “just sit back and remain silent,” but he must “bring forward ‘significant probative evidence demonstrating the existence of a triable issue of fact.’ ” In addition, State Farm pointed out that James had thirty days from February 6, 2009, in which to obtain and file counter-affidavits to support his claim, but he did not file anything; instead, his attorney informed the attorney for State Farm that he was going to petition the court for five addition days in which to file his counter-affidavits. A copy of James’s motion for additional time was attached to State Farm’s pleading, but it was not stamped filed. However, a docket entry on March 9 shows a motion for additional time was filed. There is no indication that the motion was ever set for a hearing or that a ruling was ever obtained on the motion. Instead, on March 13, 2009, James filed a document entitled Plaintiffs Response to State Farm Mutual Automobile Insurance Company’s Supplemental Motion for Summary Judgment and Motion to Strike Plaintiffs Response as Untimely. In this untimely filed document, James argued that under Rule 6(b) of the Mississippi Rules of Civil Procedure, the circuit court has discretion to enlarge the time in which a filing is due, and he argued that State Farm suffered no prejudice due to his late filing.

¶ 12. The circuit court considered the late filing and a letter brief submitted in response by State Farm. On May 5, 2009, the circuit court again ruled that State Farm should be granted summary judgment. In the letter to the attorneys advising them of his ruling, the circuit judge said he credited the testimony of Christy who under oath said that “she did not live with her parents on a permanent basis either prior to or following the accident, nor did she express a clear intent to take up residence with them on a permanent basis.” Therefore, the circuit court found James was not entitled to benefit from Christy’s State Farm uninsured-motorist policy coverage. The order concluded that the earlier March 9, 2009, order was vacated and held for naught.

¶ 13. It is from this May 5, 2009, order that James appeals claiming that it was error for the circuit court to grant State Farm’s motion for summary judgment as a material question of fact existed as to whether the underinsured-motorist coverage was available to James.

ANALYSIS

¶ 14. This Court applies a de novo standard of review to the grant of summary judgment. Bullard v. Guardian Life Ins. Co. of Am., 941 So.2d 812, 814 (¶ 6) (Miss.2006). Pursuant to Rule 56 of the Mississippi Rules of Civil Procedure, summary judgment “shall be rendered forthwith if 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.” M.R.C.P. 56(c). The court views the evidence in the light most favorable to the non-moving party. Univ. of Miss. Med. Ctr. v. Easterling, 928 So.2d 815, 817 (¶ 8) (Miss.2006). “The moving party bears the burden of demonstrating there is no genuine issue of material fact.” Id.

¶ 15. As we are dealing with a policy of insurance and whether coverage should be extended under the policy’s uninsured-motorist provision, it is necessary that we review the relevant sections of the Mississippi’s Uninsured Motorist Act. In the definition section of the Act, the term insured is defined as “the named insured,” who in this case would be Christy, and, also “while resident of the same household, the spouse of any such named insured and relatives of either....” Miss.Code Ann. § 83-ll-103(b) (Supp.2009) (emphasis added). Therefore, under the statute, a relative of the named insured residing in the same household may be considered an insured for purposes of uninsured-motorist coverage.

¶ 16. The specific language of Christy’s State Farm policy must be examined. It provides, under the uninsured-motorist section, that the “insured” is defined as “1. you; 2. your spouse; [and] 3. your relatives .... ” The policy then describes a relative as “a person related to you or your spouse by blood, marriage or adoption who resides primarily with you.” (Emphasis added). It is undisputed that James is Christy’s brother; however, that fact alone does not make him a relative entitled to coverage under her policy unless he can prove that she resided primarily with him at the time of the accident or he with her. The fact that she was not residing in his household at the time of the accident is the basis for the circuit court granting State Farm’s motion for summary judgment.

¶ 17. James argues on appeal that Christy was a resident of the same household as him at the time he was injured; thus, he was covered as an insured under section 83-ll-103(b). James cites Aetna Casualty and Surety Co. v. Williams, 623 So.2d 1005, 1008 (Miss.1993) for the general proposition that courts must interpret the terms of an insurance policy and the statutes from which they derive liberally in favor of providing coverage for the insured. James also cites McLeod v. Allstate Insurance Co., 789 So.2d 806, 810 (¶¶ 13-14) (Miss.2001) for the proposition that the term “resident” should be given a broad reading since the Legislature in defining “insured” chose the more inclusive term “residence” as opposed to “domicile.” In McLeod, the court noted that a person may have only one domicile, but a person may simultaneously have multiple residences. Id. at (¶ 13). “Once established^] a person’s domicile remains intact ‘absent a clear indication of intent to abandon the existing domicile and to establish another.’ ” Id. at (¶ 14); Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989) (a person can reside at one place but be domiciled at another). The McLeod court explained that “residency is a more flexible concept, and permanency is not a requirement for residency.” McLeod, 789 So.2d at 810 (¶ 14). “Even a temporary and transient place of dwelling can qualify.” Id.

¶ 18. What James has failed to do is to offer any evidence in opposition to Christy’s testimony that she maintained her residence at 444 Smith County Road, in a trailer home approximately 100 yards across the street from her parents’ home at 493 Smith County Road where her brother lived; and she never indicated that she intended to abandon her residence at 444 Smith County Road. Christy’s testimony was unchallenged that she was living temporarily with a friend in Raleigh awaiting her divorce when her brother was injured, but at that time, she considered 444 Smith County Road to be her residence. She testified that she did help take care of her brother at her parents’ home after his accident, but she testified clearly that she considered 444 Smith County Road as her residence. The following testimony from her deposition is illustrative:

Q. And again, we’ve talked about your intent. Did you consider 493 to be your residence from the time you got married in 2001 up until the time and after the accident of September of '05?
A. I considered it to be 444.
Q. Did you ever move into — and by moving, taking your personal belongings and move into 49B after September of '05?
A. I had just a few clothes and a few things over there, but all my stuff was at 444.
Q. And after your brother’s accident, did you go across the street and help your mother and your brother to care for him on a periodic basis?
A. Yes, sir.
Q. Did you ever reside in that house on a full-time basis?
A. No, sir, not on a full time.
Q. And when I use the word occasionally went across the street to help her, was that the correct description?
A. I occasionally went over there, but I had all my stuff and I resided over there at 444. And not too long after he got better I moved to 69 [Mimosa Lane in Mount Olive],

¶ 19. While considering the motion for summary judgment, the circuit judge had before him only the deposition testimony of Christy and her insurance policy, which defined the insured to include a relative, but which further defined a relative as “a person related to you or your spouse by blood, marriage or adoption who resides primarily with you.” (Emphasis added). The circuit court found that Christy never resided with James after his accident; thus, he was not covered by her policy.

¶20. Considering this evidence in the light most favorable to James, we find the circuit court did not err in granting State Farm’s motion for summary judgment. James totally failed to show that he was an insured under his sister’s policy. The undisputed testimony was that it was Christy’s intent to make 444 Smith County Road her home during the relevant time periods and that James never lived with her nor she with him. It would be a distortion of the concept of residency under these facts to consider the time she spent caring for her brother at her parents’ home during the day as establishing residency.

¶ 21. In Williams, the supreme court held that whether a person is a “resident” at a particular location is “a practical question which turns on the degree of one’s attachment to a particular place of abode.” Williams, 623 So.2d at 1010. In Johnson v. Preferred Risk Automobile Insurance Co., 659 So.2d 866, 872 (Miss.1995), which is cited by James, the supreme court held that the two most often discussed concepts in defining “resident” are: (1) presence; and (2) an intent to remain for some time. The Johnson court stated the word “resident” means a person has more than just a “mere physical presence, and that the transient visit of a person for a time to a place does not make him or her a resident while there.” Id. The court held that resident “imports a fixed abode for the time being, as Contra distinguished from a place of temporary abode” along with an intent to remain there permanently “or at least for some time.” Id.

¶ 22. The only evidence that could be construed as evidence of Christy’s making 493 Smith County Road her home were her visits to 493 Smith County Road to help care for her brother. However, Christy’s presence in the same home as James during these time periods was to help her mother take care of her brother. She testified that she would leave her home and go across the street and help; then she would return to her home. Looking at such a situation suggests a transient visit by Christy to 493 Smith County Road.

¶ 23. James tries to argue that he has affidavits from his mother, father, brother and friend which all say that Christy was residing at 493 Smith County Road on the date of the accident. However, these affidavits were not a part of the record that the circuit court considered as they were not timely filed. On February 9, 2009, the circuit court entered an order tentatively granting State Farm’s summary-judgment motion after James offered no evidence. For a reason we cannot detect from the record, the circuit court gave James an additional thirty days from the date of the order, February 6, 2009, to file counter-affidavits to support his contentions. The order said that if such counter-affidavits were not forthcoming within thirty days, then the motion for summary judgment would be finally granted, and State Farm would be dismissed from the lawsuit. On March 11, 2009, a response to the motion for summary judgment was filed with four purported counter-affidavits attached. However, this filing was late and could not be considered by the circuit court. The supreme court has said that Rule 6(b) of the Mississippi Rules of Civil Procedure prohibits a judge from receiving documents filed after the specified period, unless the failure to act was the result of excusable neglect. In re Last Will and Testament of Smith, 910 So.2d 562, 567-68 (¶ 22) (Miss.2005) (citing Richardson v. APAC-Miss., Inc., 631 So.2d 143, 146 (Miss.1994)). Otherwise, the counter-affidavits will be stricken. Id. James filed no motion showing excusable neglect. Therefore, the circuit court could not consider the untimely filed counter-affidavits.

¶ 24. In a letter to the attorneys for both parties, the judge explained why he had ruled in favor of State Farm. He said that it was his opinion, based upon the testimony under oath of Christy, that she neither lived with her parents on a permanent basis either prior to or following the accident, nor did she express a clear intent to take up residence with them on a permanent basis. Therefore, he found that summary judgment should be granted.

¶ 25. We find nothing in the record which disputes the circuit judge’s finding. Therefore, we find that James’s appeal is without merit.

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

KING, C.J., LEE AND MYERS, P.JJ., BARNES, ROBERTS AND CARLTON, JJ„ CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. IRVING, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, J., NOT PARTICIPATING.

      . The thirty days ran on March 8 which was a Sunday making the filing due on the following day March 9. The docket shows that on March 9, James filed a motion for additional time. State Farm included in its filings an unfiled copy of the motion, but we cannot be certain that the docket entry is the motion for additional time which James claims was filed. In any event, the motion is of no moment because James never gained a ruling on the motion and instead just filed the counter-affidavits late.

      . Rule 6(b) provides in pertinent part: "When by these rules or by notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefore is made before the expiration of the period originally prescribed ... or (2) upon motion made after the expiration of the specified period permit the act to be done where failure to act was the result of excusable neglect.... M.R.C.P. 6(b).”


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    In the Matter of the ESTATE OF Stephen J. BELLINO, Deceased: Stephen J. Bellino, II, Appellant v. Margaret BELLINO and Ann Porcello, Conservator for and on behalf of Margaret Bellino, Appellees.
    No. 2009-CA-00785-COA.
    Court of Appeals of Mississippi.
    Nov. 2, 2010.
    Shirlee Marie Fager-Baldwin, Brandon Larue Brooks, Hattiesburg, attorneys for appellant.
    Samuel Steven McHard, Glen Austin Stewart, Glenn Louis White, Moselle, attorneys for appellees.
    Before LEE, P.J., ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On January 13, 1974, Stephen J. Bellino and Margaret Bellino were lawfully wed in Louisiana, and on May 2, 2006, the couple was lawfully divorced in Forrest County, Mississippi. During the marriage, Stephen inherited approximately $200,000 from his deceased parents. A portion of this inheritance was used to open a joint-tenancy-mutual fund account with A.G. Edwards (AGE). This AGE mutual fund account was created on May 22, 1995, and Stephen and Margaret executed a joint account agreement (Agreement), which declared the account to be owned as joint tenants with right of survivorship.

¶2. Because the final judgment of divorce failed to sufficiently address the AGE joint investment account, AGE notified Stephen (through his counsel) that they would not permit withdrawals from the account unless the final divorce judgment or decree of divorce allowed him to do so. Upon receiving this notice, Stephen, on May 15, 2006, filed a motion to alter or amend judgment; however, because this motion was filed more than ten days after the entry of judgment for divorce, the motion was time-barred.

¶ 3. On June 18, 2006, prior to any resolution of the alleged substantive errors in the judgment of divorce, Stephen died and was survived by Margaret. On July 5, 2006, the Estate of Stephen J. Bellino (Estate) was opened, and Stephen J. Bellino II (Bellino II) was appointed administrator of the Estate, and Brandon Brooks served as the attorney.

¶ 4. On November 20, 2006, Brooks appeared ex parte before Forrest County Chancery Court Judge James Thomas. This hearing was not made known to, or consented to, by Margaret or her attorneys. At this hearing, Brooks improperly obtained an order dispersing funds that was never filed with the Forrest County Chancery Clerk in either the Estate or in the divorce proceedings. Despite these defects, AGE acknowledged the order dispersing funds and, at the request of Brooks, closed the AGE mutual-fund joint account and delivered the proceeds in the amount of $140,370.35 to Brooks, who deposited the funds into the Estate.

¶ 5. On April 13, 2009, the Forrest County Chancery Court found that the funds represented in the divorce decree as the “Wal-Mart Stock” with a value of $140,000 should have been represented as the AGE funds. A Mississippi Rule of Civil Procedure 60(a) motion filed by Bellino II was granted to correct the judgment at the time of the divorce. The chancellor proceeded to award present ownership of these funds to Margaret by granting her motion for summary judgment as to the vesting of the AGE funds following the death of Stephen. It is from this adverse ruling that Bellino II now appeals. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 6. “This Court employs a de novo standard of review of a trial court’s grant of summary judgment.” Owens v. Thomae, 904 So.2d 207, 208 (¶ 7) (Miss.Ct.App.2005). Summary judgment is appropriate if there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. M.R.C.P. 56(c). “The burden of demonstrating that there is no genuine issue of material fact falls on the party requesting the summary judgment.” Mozingo v. Scharf, 828 So.2d 1246, 1249 (¶ 5) (Miss.2002). “If any genuine triable issues of fact exist, the trial court’s grant of summary judgment will be reversed; otherwise, the decision will be affirmed.” Id. at 1249-50 (¶ 5).

DISCUSSION

¶ 7. We first note that, despite repeated requests from the clerk of this Court, it appears that the appellant has failed to provide this Court with a statement of the issues. In the past, we have held that, under Mississippi Rule of Appellate Procedure 28(a)(3), issues not listed in a statement of issues are procedurally barred from presentation, and those who fail in this regard are barred from addressing the issues in the substantive argument section of the brief. Reed v. State, 987 So.2d 1054, 1056 (¶ 8) (Miss.Ct.App.2008).

¶ 8. In addition, we find that the appellant has been somewhat disingenuous in the presentation of the facts of the case by failing to sufficiently provide citations to the authorities and the record in compliance with Mississippi Rule of Appellate Procedure 28(a)(6). We have previously held that a failure to comply with this rule will render an argument procedurally barred. Sorey v. Crosby, 989 So.2d 485, 487 (¶ 9) (Miss.Ct.App.2008). Nonetheless, despite these procedural bars, we will address the arguments put forth by the appellant.

I. AGE Account

¶ 9. We find that there is no genuine triable issue of fact with regard to the ownership of the AGE account at the time of Stephen’s death; therefore, the granting of summary judgment was appropriate. Ownership of the funds is determined by the language in the Agreement signed by both Stephen and Margaret on May 22, 1995. The Agreement clearly states: “unless specified to the contrary below, this joint account will be carried as joint tenants with rights of survivorship and not as tenants in common.” If Stephen had intended to dissolve Margaret’s contractual interest in the AGE account, the law required that he take the appropriate affirmative actions to effectuate such a change. Therefore, because the agreement was never modified, it is clear that Margaret, at the moment of Stephen’s death, became the sole owner of the account by operation of law.

II. Judicial Estoppel

¶ 10. Under Mississippi law, judicial estoppel precludes a party from asserting a position, benefitting from that position, and then taking a contrary stand later in the same litigation. Dockins v. Allred, 849 So.2d 151, 155 (¶ 7) (Miss.2003). However, when the first position asserted was taken as result of mistake, judicial estoppel should not be invoked. Mauck v. Columbus Hotel Co., 741 So.2d 259, 265 (¶ 15) (Miss.1999) (citing Thomas v. Bailey, 375 So.2d 1049, 1053 (Miss.1979)).

¶ 11. Although it is true that Margaret’s initial motion to amend declared the AGE account as a tenants-in-common account, this was a clear mistake of fact. Once Margaret obtained a copy of the Agreement and learned the true nature of the account, she promptly and voluntarily dismissed her motion, stating that it was, indeed, based upon a mistake of fact. Because Margaret’s first position with regard to the nature of the Agreement was based upon a mistake of fact, and because she never benefitted from this position, it would be improper to invoke the doctrine of judicial estoppel.

¶ 12. Furthermore, the Agreement was never modified by Stephen, and the language in the Agreement is controlling. Even if Margaret had erroneously claimed the nature of the Agreement was a tenancy in common, it would not have changed the fact that the Agreement was, in fact, a joint tenancy with rights of survivorship. Again, at the time of his death, the AGE funds owned by Stephen automatically vested in Margaret. Accordingly, the judgment of the chancery court is affirmed.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES AND ROBERTS, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE OPINION.

      . Mississippi Rule of Appellate Procedure 28(a)(6) states: ‘‘[T]he brief of the appellant shall contain under appropriate headings and in the order here indicated ... The argument shall contain the contentions of (the) appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.”


author: ROBERTS, J.,

text:
    Nathan SELLERS, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01366-COA.
    Court of Appeals of Mississippi.
    Jan. 11, 2011.

      Nathan Sellers, appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Nathan Sellers was convicted of aggravated assault. Sellers’s retained attorney, Kevin Camp, did not appeal Sellers’s conviction. Sellers filed a motion for an out-of-time appeal. The Rankin County Circuit Court summarily denied Sellers’s motion on the basis that the agreement between Sellers and Camp stated that Camp’s representation did not include appellate work. Aggrieved, Sellers appeals. We find that the circuit court erred when it did not conduct an evidentiary hearing to determine whether Sellers timely asked Camp to appeal his conviction. Accordingly, we reverse the judgment of the circuit court which summarily denied Sellers’s motion for post-conviction relief and remand this matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶2. Charged with aggravated assault, Sellers retained Camp to defend him. Camp charged Sellers $3,500 with a minimum up-front payment of $1,000 and monthly payments of $250 until Sellers satisfied the balance of Camp’s fee. The agreement between Camp and Sellers included a provision that “[t]he fee schedule quoted herein does not include ... appeals to a higher court....”

¶ 8. On February 21, 2008, Sellers was found guilty of aggravated assault. The Rankin County Circuit Court sentenced Sellers to twenty years in the custody of the Mississippi Department of Corrections. On March 5, 2008, aided by Camp, Sellers filed a motion for a judgment notwithstanding the verdict or, alternatively, for a new trial. That motion was never noticed for a hearing. The record does not indicate the reason why Sellers’s motion was never set for a hearing.

¶ 4. As best we can tell, the circuit court was unaware that Sellers had filed a motion for JNOV or a new trial until November 4, 2008, when it reviewed the record while hearing an unrelated motion. The circuit court later set Sellers’s motion for JNOV for a hearing scheduled for December 8, 2008. Sellers was transported to the circuit court for the hearing. Two days later, the circuit court entered an order denying Seller’s motion for JNOV or, alternatively, a new trial.

¶ 5. On July 15, 2009, Sellers filed a pro se motion for an extension of time to appeal. Sellers submitted an affidavit in support of his motion. According to Sellers, at the conclusion of his trial, he told Camp that he wanted Camp to appeal. Sellers also stated that Camp assured him that he “would perfect the requested appeal.” Sellers went on to state that, despite Camp’s assurance that he would file Sellers’s appeal, Camp failed to do so. Instead, Camp demanded an additional $5,000 to handle the appeal. Attached to Sellers’s motion was a letter that he had written to Camp. That letter, dated October 19, 2008, reads as follows:

Dear Mr. Camp. I need you to send me a copy of my direct appeal motion and what all you have filed in the courts on my case[,] so I can figure out what all is going on with my case. Also what grounds did you raise in my appeal motion for direct appeal[?] I also need a full copy of my motion of discovery and my trial transcripts. Make sure if possible that you color copy the pictures of Terry Brown showing her neck and the picture of my girl’s leg also. Send my medical records I gave you permission to obtain.

According to Sellers, Camp never responded.

¶ 6. On July 21, 2009, the circuit court denied Sellers’s motion for an extension of time to appeal. The circuit court noted that Sellers had attached a copy of his agreement with Camp as an exhibit to his motion for an extension of time to appeal. The circuit court also noted that “[t]he contract clearly provides in one of its beginning paragraphs that the representation did not include ‘appeals to a higher court.’ ” On August 19, 2009, Sellers appealed the circuit court’s denial of his motion for an extension of time to appeal.

STANDARD OF REVIEW

¶ 7. When reviewing a circuit court’s decision to deny a motion for post-conviction relief, we will not disturb the circuit court’s factual findings unless they are found to be clearly erroneous. Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008). However, we review questions of law de novo. Id.

ANALYSIS

¶ 8. Sellers argues that the circuit court erred when it summarily denied his motion for an extension of time to appeal. However, because Sellers is proceeding pro se, we consider the underlying merit of Sellers’s complaint so that any meritorious claim is not overlooked even though his motion may not be artfully drafted or articulated. Gatewood v. State, 909 So.2d 754, 756 (¶ 4) (Miss.Ct.App.2005). The substantial issue in this case is whether Sellers is entitled to an evidentiary hearing to determine whether Sellers asked Camp to appeal Sellers’s aggravated assault conviction. The State agrees with the circuit court that the determinative feature of this issue is the fact that Sellers did not file a timely direct appeal and, despite Sellers’s claim that he asked Camp to appeal, Camp’s agreement to represent Sellers clearly indicated that he would only represent Sellers at the trial level.

¶ 9. One of the grounds for relief under the Mississippi Uniform Post-Conviction Collateral Relief Act is an out-of-time appeal. Miss.Code Ann. § 99-39-5(l)(h) (Rev.2000). The Mississippi Supreme Court has held:

To prove his right to an out-of-time appeal, the movant must show by a preponderance of the evidence that he asked his attorney to appeal within the time allowed for giving notice of an appeal. Moreover, the movant must show that the attorney failed to perfect the appeal and that such failure was through no fault of the movant.

Dickey v. State, 662 So.2d 1106, 1108 (Miss.1995) (citation omitted). An eviden-tiary hearing is necessary when a record contains no indication that an attorney responded to his client’s request to appeal. Id. (citing Harris v. State, 624 So.2d 100, 102 (Miss.1993)). Nevertheless, the Mississippi supreme court has held that no hearing is required when the record contains letters from trial counsel that provide documentary evidence sufficient to contradict an affidavit submitted by one who seeks post-conviction relief. Id. at 1108. Here, there is no documentary evidence that contradicts Sellers’s claim that he asked Camp to appeal the aggravated-assault conviction. Consequently, an eviden-tiary hearing is necessary.

¶ 10. The circuit court held that Sellers was not entitled to an out-of-time appeal because Camp’s agreement to represent Sellers indicated that Camp’s representation did not include appealing Sellers’s conviction. Be that as it may, Camp’s obligation to file Sellers’s appeal is part of his obligation as Sellers’s trial counsel. That obligation remained viable unless Camp properly obtained the trial court’s leave to withdraw as Sellers’s attorney. We have recently held that an appointed lawyer’s statement to his client that the lawyer’s representation ended upon conviction was an incorrect statement of law and an incorrect statement of the lawyer’s obligation to his client. Jones v. State, — So.3d-, 2010 WL 3310231 (¶ 17) (Miss.Ct.App.2010) (citing M.R.A.P. 6(b)(1)).

¶ 11. In Triplett v. State, 579 So.2d 555, 558 (Miss.1991), letters in the record indicated that a retained lawyer told his convicted client that the client had to pay the lawyer’s fee before the lawyer would proceed with the client’s appeal. The supreme court held:

If grounds for withdrawal or termination exist, the attorney must seek the court’s permission to properly withdraw from representation, but incumbent upon the attorney is the duty to take all necessary steps to protect the defendant’s right of appeal.
It is true that subsequent to trial and conviction of their clients, trial counsel may find themselves on the horn of dilemma, unsure whether or not to appeal. But the answer lies in the cloak of responsibility adorned by every criminal trial attorney when employment is accepted or appointment is made by the court. Unilateral withdrawal is manifestly not the solution. The problems of withdrawal may be more difficult than the British Army from Dunkirk but the requirements prerequisite to termination of attorney/client relationship remain paramount. Our rules and case law mandate written court permission to withdraw from representation prior to completion of the contract. Nothing less will suffice.

Id. at 559 (emphasis added). Furthermore, the supreme court has also stated:

We take this occasion to announce to the bench and bar and the state of Mississippi at large that any time an attorney undertakes to represent a client in any court of record in this state that there attaches at that moment a legal, ethical, professional and moral obligation to continue with that representation until such time as he is properly relieved by the court of record before whom he has undertaken to represent a client. This is true regardless of the circumstances under which his representation of that client may be terminated. This withdrawal may be accomplished only by the filing of a motion with the court with proper notice to the client.
The attorney may then withdraw upon the entry of a written order by the court granting him leave to withdraw from representation of his client.

Myers v. Miss. State Bar, 480 So.2d 1080, 1092-93 (Miss.1985) (emphasis added).

¶ 12. Additionally, we remind the bar of the following warning by the supreme court: “disputes between lawyer and client over instructions to take or not to take an appeal are difficult to resolve without a record. Lawyers should assist the court in this regard by reducing decisions whether to appeal a criminal conviction to a writing signed by the defendant.” Wright v. State, 577 So.2d 387, 390 (Miss.1991). The supreme court also urged trial courts to “advise criminal defendants of their rights concerning appeal on the record at the time of sentencing and to solicit a decision in that regard.” Id. The supreme court further stated:

Should a decision be made on the record to appeal the defendant should be advised that decision will stand unless a written statement to the contrary, signed by the defendant and the attorney, is filed with the court. Should the decision be made to waive appeal the defendant should, nevertheless, be informed of the time limits for appeal and told that his decision to waive shall stand unless he gives written notice to the court and his attorney prior to the expiration of the time. Should no decision be made the court should inform the defendant that his failure to express a desire to appeal shall be considered a waiver of his right to appeal and that such waiver will stand unless he gives written notice to the court and counsel prior to the expiration of the time in which to perfect the appeal.

Id.

¶ 13. In conclusion, we find that the circuit court erred when it summarily denied Sellers’s motion for post-conviction relief. Because the record contains no statement from Camp that is contrary to Sellers’s statement that he requested that Camp appeal Sellers’s conviction, we remand this case for an evidentiary hearing. Because Sellers claimed that Camp refused to file Sellers’s appeal since Sellers could not pay Camp’s additional fee, on remand, the circuit court should consider whether Sellers is indigent and whether new counsel should be appointed for Sellers. If the circuit court grants Sellers’s motion for an out-of-time appeal and the State does not appeal that ruling, then Sellers may file a direct appeal of his underlying aggravated-assault conviction. If the circuit court denies Sellers’s motion for an out-of-time appeal, he would be entitled to appeal the circuit court’s decision with the necessary record of the evi-dentiary hearing.

¶ 14. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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