author: ISHEE, J., CARLTON, J.,

text:
    Raymond L. PANNELL, Appellant, v. STATE of Mississippi, Appellee.
    No. 2006-KA-01882-COA.
    Court of Appeals of Mississippi.
    Sept. 9, 2008.
    Rehearing Denied Jan. 6, 2009.
    Certiorari Denied April 23, 2009.

      Phillip Broadhead, Oxford, John Carl Helmert, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before MYERS, P.J., IRVING and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Raymond Louis Pannell was convicted of arson and sentenced to twenty years, with ten years suspended, in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved by his sentence and conviction, Pannell now appeals, contending that the circuit court erred in failing to suppress his confession to law enforcement officers after he invoked his right to counsel. This Court finds that Pannell’s Fifth and Sixth Amendment rights to counsel were violated by a police-initiated interrogation, which resulted in Pannell’s confession and occurred after Pannell asserted his right to have counsel present during questioning. For this reason, the confession, which was made without the benefit of counsel, should have been suppressed. Therefore, the judgment of the circuit court is reversed, and this case is remanded to the court for proceedings consistent with this opinion.

FACTS

¶ 2. Raymond and Teresa Pannell were married for twenty-three years. While married, the Pannells lived in a home that they personally built located in Baldwyn, Mississippi. The Pannells divorced on November 24, 2004. As part of the divorce settlement, Teresa was granted the exclusive use, possession, and control of the house until their minor children reached the age of twenty-one. The property was vacant for a period of time after the divorce. During this time, Teresa had the locks changed on both the doors and the gate to the fence surrounding the property-

¶3. On December 4, 2004, police responded to a call that a fire had broken out on the property. When they arrived, they found that the Pannells’ house had burned down. After investigating the scene and speaking to witnesses, police identified Pannell as a suspect. Later that evening, Pannell was placed under arrest for trespass and arson. He was given an initial appearance two days later at the Prentiss County Justice Court where he was represented by his attorney, and a $50,000 bond was set.

¶ 4. Subsequently, during his incarceration, a meeting was arranged between Pannell and the jail administrator, Officer Brian Taylor. Officer Taylor also happened to be the investigating officer of the alleged arson. Although it is disputed as to whom actually initiated the meeting and its purpose, it is undisputed that the meeting took place in the jail’s law library and was witnessed by fellow officer, Jeremy Pace. At some point during the meeting, the conversation turned to the subject of the fire. Before answering any questions about the fire, Pannell notified Officer Taylor that he did not want to talk without his attorney present. Officer Taylor testified that he honored that wish by not explicitly questioning Pannell about the fire. However, subsequent to Pannell’s request for his attorney, Officer Taylor notified Pannell that he had compiled strong evidence against him and proceeded to show Pannell the contents of the evidence file. This file included photographs of the crime scene and an incriminating statement taken from Pannell’s brother, Herman Pannell. After viewing the evidence against him, Pannell decided to confess to the crime. Prior to taking the confession, the officers read Pannell his Miranda rights. Pannell then signed a Miranda waiver. Pannell’s confession was written down by Officer Taylor and was signed by Pannell.

¶ 5. Shortly after Pannell gave his confession, his case was presented to the Prentiss County grand jury. The grand jury heard testimony regarding the charge of arson. However, based upon the testimony of Officer Taylor at the suppression hearing, it appears that Pannell’s confession was not presented to the grand jury. Finding that there was insufficient evidence to indict Pannell, the grand jury failed to return a true bill against him. Though the grand jury retired on April 1, 2005, Pannell was not released from jail until May 1, 2005, having remained in jail for an additional month after the grand jury failed to indict him.

¶ 6. After Pannell’s release, the State presented its case to the grand jury a second time on August 22, 2005. This time it appears the State did present Pannell’s confession before the grand jury. Having the benefit of Pannell’s confession, the State was able to obtain an indictment. As a result, Pannell was re-arrested and charged with arson.

¶ 7. Prior to trial, Pannell filed a motion to suppress his confession contending that it was given involuntarily and in violation of his Fifth and Sixth Amendment rights. A suppression hearing was held on September 26, 2006. After hearing the testimony of both Officer Taylor and Officer Pace, the circuit court found that there was sufficient evidence for concluding that Pannell “initiated” contact with Officer Taylor. Further, the circuit court opined that the presentation of evidence by Officer Taylor to Pannell did not constitute police interrogation. As a result, the circuit court found that Pannell’s statements were “freely, knowingly, and voluntarily given” and were made after the execution of a valid Miranda waiver and affidavit that had been signed and witnessed. The circuit court denied Pannell’s motion to suppress the confession, and the State was permitted to use it as evidence at trial. Pannell was convicted of arson on October 6, 2006. Pannell filed a motion for acquittal notwithstanding the verdict or, in the alternative, for a new trial, which subsequently was denied. Pannell now appeals the circuit court’s ruling.

STANDARD OF REVIEW

¶ 8. In reviewing a trial court’s denial of a motion to suppress a confession, “we apply the familiar general rule that since the trial court sits as the fact-finder when determining the issue of whether an accused’s confession has been intelligently, knowingly and voluntarily given, we will only reverse the trial court’s determination of this issue when such determination is manifestly wrong.” Glasper v. State, 914 So.2d 708, 716(¶ 21) (Miss.2005) (citing Manix v. State, 895 So.2d 167, 180(¶ 39) (Miss.2005)). In order for us to reverse a trial court’s determination on the admissibility of a confession into evidence, the trial court must have committed manifest error, applied an incorrect legal standard, or rendered a decision contrary to the overwhelming weight of the evidence. Id. at 716-17(¶21) (citing Thorson v. State, 895 So.2d 85, 116(¶ 73) (Miss.2004)). Further, “there is no doubt that a confession is admissible only after the State has proven beyond a reasonable doubt that the accused’s confession was not the product of promises, threats or inducements.” Id. at 717.

ANALYSIS

I. Whether the circuit court erred in denying Pannell’s motion to suppress his confession as the statement was obtained after he invoked his right to counsel.

¶ 9. Pannell contends that his confession on March 12, 2005, was taken at a time after he had asserted his right to have counsel present during questioning. Pannell further contends that regardless of whom initiated the meeting between Pan-nell and Officer Taylor, the presentation of evidence by Officer Taylor to Pannell constituted a police-initiated interrogation. Pannell argues that because the interrogation occurred after his request to see his attorney, his right to counsel was violated, and therefore, any subsequent waiver of his rights should have been held invalid. Thus, Pannell contends his confession should have been suppressed at trial. In analyzing this issue, we must consider: (1) whether Pannell asserted his right to counsel, (2) whether showing Pannell the evidence file constituted a police-initiated interrogation, and if so, (3) whether Pan-nell effectively waived his right to counsel.

A. Pannell’s Right to Counsel

¶ 10. An accused’s Sixth Amendment right to counsel accrues once the accused is in custody. Brink v. State, 888 So.2d 437, 447-48(¶ 28) (Miss.Ct.App.2004) (citing Balfour v. State, 598 So.2d 731, 743 (Miss.1992)). “Specifically, the right attaches at the point in time when the initial appearance ought to have been held.” Id. at 448(¶ 28) (citing McGilberry v. State, 741 So.2d 894, 904(¶ 17) (Miss.1999)). Once the accused asserts the right to an attorney, the right attaches and “any statements obtained from the accused during subsequent police-initiated custodial questioning regarding the charge at issue (even if the accused purports to waive his rights) are inadmissible.” Balfour, 598 So.2d at 742 (quoting McNeil v. Wisconsin, 501 U.S. 171, 179, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991)). “An accused ... having expressed his desire to deal with police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

¶ 11. Clearly, Pannell’s right to counsel accrued prior to his confession to police. The record indicates that when Pannell was given an initial appearance, he appeared before the court with his attorney present. Further, it is undisputed that Pannell asserted his right to counsel prior to being questioned by police. The circuit court held that Pannell “initiated” contact with the police, citing to disputed evidence that Pannell had asked to meet with Officer Taylor; therefore, the court determined that Pannell’s confession was voluntary. However, both Officer Taylor and Officer Pace testified at the suppression hearing that Pannell requested to speak to his attorney before he answered any questions about the fire. Therefore, even if Pannell initiated the meeting, he effectively cut off questioning by asking for his attorney. The United States Supreme Court, as well as our own supreme court, has made it clear that if the accused states that he wants an attorney, all interrogation must cease until his attorney is present. Minnick v. Mississippi, 498 U.S. 146, 150, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990); Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880; Sanders v. State, 835 So.2d 45, 50(¶ 16) (Miss.2003). Therefore, the question of admissibility turns on whether Pan-nell, after asserting his right to counsel, reinitiated contact with the officers or whether his confession came in response to further interrogation by Officer Taylor.

B. Court’s Definition of “Interrogation”

¶ 12. The issue before us is a difficult one and has not been completely resolved in this state. It poses the question as to what police procedures should be considered “interrogation”; specifically, whether showing the accused the evidence compiled against him after he has requested to see his attorney constitutes custodial interrogation in violation of his constitutional rights. The circuit court was of the opinion that showing Pannell the evidence file after he asserted his right to counsel did not constitute “interrogation.” The circuit court judge based his decision on the fact that Officer Taylor did not explicitly question Pannell about the contents of the file or facts of the case. However, the term “interrogation” has not been limited to encompass only express questioning by the police. In fact, the Mississippi Supreme Court has applied a broad interpretation to the term “interrogation” to include not only questioning, but rather “questioning and its functional equivalent.” Culp v. State, 933 So.2d 264, 273(¶ 19) (Miss.2005) (citing Pierre v. State, 607 So.2d 43, 52 (Miss.1992)). In the landmark decision of Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), the United States Supreme Court defined “functional equivalent” to mean “words or actions ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Innis, 446 U.S. at 301, 100 S.Ct. 1682. In broadening its definition of “interrogation,” the Supreme Court in Innis noted that its concern in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) was that “the ‘interrogation environment’ created by the interplay of interrogation and custody would ‘subjugate the individual to the will of his examiner’ and thereby undermine the privilege against compulsory self-incrimination.” Innis, 446 U.S. at 299, 100 S.Ct. 1682.

¶ 13. What police measures and procedures actually fall under this “functional equivalent” category have been difficult to ascertain. In Innis, the Supreme Court included in its survey of interrogation practices the use of psychological ploys such as those that “posit the guilt of the subject” or “cast blame on the victim or on society.” Id. However, the Court has stopped short of creating an exhaustive list of police techniques that are held to be interrogation practices. Likewise, the law in this state provides little guidance as to what procedures should be considered interrogation. This Court has stated that interrogation “must reflect a measure of compulsion above and beyond that inherent in the custody itself.” Bryant v. State, 853 So.2d 814, 819(¶ 13) (Miss.Ct.App.2003) (citing Innis, 446 U.S. at 300, 100 S.Ct. 1682). The test does not examine the subjective intent of the police, but rather, whether the officer “should ‘have known his actions were reasonably likely to elicit an incriminating response.’ ” Id. (quoting Snow v. State, 800 So.2d 472, 497(¶91) (Miss.2001)).

¶ 14. We now turn to whether confronting Pannell with the evidence that Officer Taylor had compiled against him violated the prohibition expressed in Innis against the use of “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Innis, 446 U.S. at 301, 100 S.Ct. 1682. Because the inquiry is contextual, we review the known facts. Pannell invoked his right to cut off questioning, thereby triggering the prohibition in Innis against further interrogation. In response, Officer Taylor failed to cease communication with Pannell completely. Instead, he notified Pannell that he had compiled strong evidence against him. He then proceeded to lay out the contents of the evidence file before Pannell. In doing so, Officer Taylor showed Pannell pictures of the burned house, as well as an incriminating statement taken from Pannell’s brother. Only after Pannell reviewed the evidence did he decide to give a written statement confessing to the arson. The crucial inquiry is whether Officer Taylor should have known that his actions were reasonably likely to elicit an incriminating response from Pannell. We find, given the facts of this case, Officer Taylor should have known that his actions were likely to elicit a confession.

¶ 15. Though the facts suggest that this is a case of first impression in this- state, the Mississippi Supreme Court has once before been presented with the question of whether presenting evidence before an accused satisfies the definition of “interrogation.” See Balfour v. State, 580 So.2d 1203 (Miss.1991). In Balfour, the defendant and her accomplice were arrested and charged with capital murder and several armed robberies. Id. at 1204. The defendant requested counsel on at least two occasions, both upon her arrest and at her initial appearance. Id. at 1208. At some point after the defendant’s initial appearance, she was approached in her cell by two officers who requested to speak to her. Id. The officers told the defendant that her accomplice had made a statement implicating her in their criminal activity. Id. Upon hearing this, the defendant acquiesced and submitted a written confession to the police. Id. Our supreme court held that given that the defendant had already asserted her right to counsel and that the officers’ tactics were carried out in an effort to elicit an incriminating response, the trial court’s admission of the defendant’s confession violated her Fifth and Fourteenth Amendment rights. Id. at 1209.

¶ 16. Although not identical, the police practices at issue are indistinguishable from the type of police practices criticized in Balfour. Similar to Balfour, the officers confronted Pannell with testimonial evidence implicating him in the crime after he asserted his right to counsel. Although the statement at issue was not given by an accomplice, as it was in Balfour, it carries equal weight. Both statements represent witness testimony that implied guilt directly on the accused. The statement with which Pannell was confronted was provided to police by his brother, Herman. The relevant portion of Herman’s statement alleges that on the day of the alleged arson, Pannell told Herman that he was going to burn the house and kill his ex-wife. The statement also alleges that Herman saw Pannell running from the house shortly before it caught on fire. Because the Balfour court determined that the incriminating testimonial evidence was presented in an effort to elicit an incriminating response from the accused, we are persuaded to hold the same is true in this case.

¶ 17. Similarly, we are of the opinion that the ploy of confronting an accused with the incriminating evidence against him, without being prompted by the accused’s request or inquiry into the evidence, is indistinguishable from the types of police practices criticized in Innis. As previously stated, Innis admonishes “positing the guilt of the subject.” Innis, 446 U.S. at 299, 100 S.Ct. 1682. It is easy to see from Pannell’s perspective, under the circumstances of this case, that being advised of incriminating evidence was the functional equivalent of police positing guilt. It is undisputed that prior to giving his confession to Officer Taylor, Pannell said very little, if anything at all, after asking to see his attorney. We can see no other rational reason why Officer Taylor would have presented the evidence to Pan-nell other than to posit Pannell’s guilt. Pannell did not ask Officer Taylor about the charges against him. He did not inquire into the evidence compiled by the police, nor did he ask to explicitly see the contents of the evidence file. It is obvious to this Court that Officer Taylor showed Pannell the evidence file in an attempt to have him reconsider his request for counsel; a tactic that proved successful as Pan-nell was not prompted to speak until he reviewed the evidence placed before him.

¶ 18. Further, the actions of the police in this case reflect a measure of compulsion above and beyond that inherent in the custody itself. Of primary significance is the manner in which the police detained Pannell, holding him long enough to obtain a confession and releasing him only after his written confession was secured. These actions, taken together, reflect a police effort, whether out of intent or neglect, to deprive Pannell of his constitutional rights.

¶ 19. First, it is obvious that the police ignored Pannell’s right to an attorney at two different points during the meeting. Officer Taylor knew or should have known that Pannell was represented by counsel because Pannell’s attorney appeared with him at his initial appearance. Therefore, regardless of whom initiated the meeting between the two, Officer Taylor should have contacted Pannell’s attorney before any meeting took place. Even if the meeting was called for a simple jail administrative purpose, one which would not require assistance from Pannell’s attorney, that purpose clearly shifted when the subject of the fire was broached. From that point, the nature of the meeting clearly became investigatory, and the failure to notify Pannell’s attorney of the meeting was a violation of Pannell’s Sixth Amendment right to counsel. Second, once Pannell unequivocally asked to see his attorney, the interrogation should have ceased until his attorney was present. Therefore, Officer Taylor should have ended the conversation there; instead, he chose to continue the interrogation by placing the evidence file before Pannell violating his Sixth Amendment right to counsel. Finally, Pannell remained in jail for at least a month after the first grand jury failed to return a true bill against him with no promise of release.

¶ 20. Under these circumstances, we believe that Officer Taylor should have known that his actions were likely to elicit an incriminating response. It is clear that his actions aided in creating a coercive interrogation environment that subjugated Pannell to the will of his examiners, thereby undermining his right against compulsory self-incrimination. Therefore, we conclude that confronting a suspect with the incriminating evidence compiled against him after he has invoked his right to counsel, and without any initiation on the part of the suspect, is precisely the kind of psychological ploy that definition of interrogation in Innis was designed to prohibit.

¶ 21. In so holding, we are mindful that courts have not spoken uniformly in this area of the law. Some appellate courts have allowed police to show an accused the evidence against him and then ask if he would reconsider his decision to remain silent. See Easley v. Frey, 433 F.3d 969 (7th Cir.2006) (holding that an officer’s statement regarding the evidence and the possible consequences of the charges did not rise to the level of interrogation); United States v. Payne, 954 F.2d 199 (4th Cir.1992) (finding that statements by law enforcement officials to a suspect regarding the nature of the evidence against the suspect did not constitute interrogation as a matter of law); United States v. Thierman, 678 F.2d 1331 (9th Cir.1982) (determining that police officers’ discussion of the investigation in accused’s presence after he invoked his right to counsel did not constitute interrogation). But see United States v. Poole, 794 F.2d 462 (9th Cir.1986) (holding that showing a suspected bank robber surveillance photos is interrogation). After reviewing these cases, these courts seem to support their decisions under one of two rationales: (1) that apprising a suspect of the charges and evidence against him or her is inherent in arrest and custody, and (2) a suspect should be informed of the evidence against him or her so he or she can make an informed decision on how to proceed.

¶ 22. This Court has several concerns with applying these rationales to this case. First, in reasoning that apprising a suspect of the evidence is inherent in arrest and custody, the courts have considered mainly cases where a confession is made during arrest or normal booking procedures. This case is distinguishable in that Pan-nell’s statement did not come while being placed under arrest. In fact, Pannell had been in the custody of the Prentiss County Sheriffs Department for three months at the time his meeting with Officer Taylor took place. Further, the purpose of the meeting was not a matter inherent in the custodial relationship. Whether or not the meeting was originally called for a jail administrative matter, that purpose clearly shifted once the subject turned to the matter of the fire. Once Officer Taylor inquired about the fire, the purpose of the conversation clearly became investigatory and constitutional protection was necessary.

¶ 28. Second, this Court fails to see how apprising a suspect of the evidence after he asserts his right to counsel is necessary to help him make an informed decision about the case. It is unlikely that an accused is capable of weighing the evidence against him in order to make an informed decision without the assistance of counsel. By requesting to see his attorney, Pannell obviously did not believe that he could protect his interests without his attorney’s advice. Therefore, to apprise him of the evidence after he made his request only increased the danger that Pannell would feel compelled to reconsider his right to counsel.

¶ 24. This Court is persuaded by the decisions of those appellate courts that have noted that the practice of permitting interrogators to apprise a suspect of the evidence against him has been brought into doubt by Innis. See United States v. Pena, 897 F.2d 1075, 1082 n. 16 (11th Cir.1990) (disapproved on other grounds); Anderson v. Smith, 751 F.2d 96, 104 (2d Cir.1984) (overruled on jurisdictional grounds). Specifically, we agree with the bright line approach taken by the Eleventh Circuit in which the court stated, “[t]he law in this area is clear: once an accused requests counsel, the officer cannot ask questions, discuss the case, or present the accused with possible sentences and the benefits of cooperation.” United States v. Gomez, 927 F.2d 1530, 1539 (11th Cir.1991) (citing Innis, 446 U.S. at 299, 100 S.Ct. 1682; United States v. Johnson, 812 F.2d 1329, 1331 (11th Cir.1986)). Rather than attempting to list matters that police could or could not discuss with an accused in custody after he has asserted his right to counsel, the court reasoned that “[i]t best serves all interests, especially law enforcement, to remain close to the ‘bright line’: interrogation must cease when the accused in custody requests the presence of a lawyer before further interrogation.” Johnson, 812 F.2d at 1331. We agree with the Eleventh Circuit’s view that “an accused’s request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease.” United States v. Herrera, 711 F.2d 1546, 1557 (11th Cir. 1983) (quoting Fare v. Michael C., 442 U.S. 707, 719, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)). It is this Court’s position that when in doubt, adhering to the “bright line” rule is necessary to ensure that an accused’s Fifth and Sixth Amendment rights are fully protected.

¶ 25. We are further persuaded by the Sixth Circuit’s decision in Combs v. Wingo, 465 F.2d 96 (6th Cir.1972) as it provides facts very similar to this case. In Combs, the defendant surrendered to police after being sought out for murder. Id. at 97. After being informed of his constitutional rights, the defendant notified police that he would make a statement but only after first speaking to his attorney. Id. In response, police showed the defendant the ballistics report on the rifle and bullet used in the crime. Id. at 98. This prompted the defendant to confess to the murder. Id. The Sixth Circuit held that under the circumstances, the defendant’s confession was taken involuntarily in violation of his Fifth Amendment rights. Id. at 98-99. In doing so, the court noted that the purpose of a question is to get an answer, and “[a]nything else that has the same purpose falls in the same category and is susceptible of the same abuses Miranda seeks to prevent.” Id. at 99. The court opined that the only possible object of showing the defendant the ballistics report was to elicit a confession from him. Id.

¶ 26. Applying the reasoning of the Sixth Circuit in Combs to the facts of this case, it is unlikely that Officer Taylor showed Pannell the evidence file for any reason other than for the purpose of eliciting a confession. Being the lead investigator on the case, Officer Taylor had obvious incentive to elicit information from Pannell about the fire. Further, Pannell never inquired about the charges or evidence against him during the meeting, nor did he request to see the evidence after he asserted his right to counsel. Since Pannell refused to answer questions about the fire, it is only rational to believe that Officer Taylor showed him the evidence file in order to prompt a response from him. Therefore, Officer Taylor’s actions, having the same purpose of explicit questioning, constituted interrogation made after Pan-nell asserted his right to counsel.

¶ 27. Accordingly, we conclude that Pannell’s confession was made involuntarily and in violation of his Fifth and Sixth Amendment rights.

C. Pannell’s Waiver of Rights

¶ 28. The State contends that even if Pannell did assert his right to counsel, that right was validly waived when he signed the Miranda waiver and voluntarily agreed to make a statement. Pannell argues that his signed waiver of rights was not effective because he did not initiate the interrogation. Pannell contends that regardless of whom initiated the initial meeting, once he asserted his right to counsel, the continued interrogation by Officer Taylor violated his constitutional rights. Therefore, a valid waiver could not be achieved.

¶ 29. In Edwards, the United States Supreme Court held that “an accused ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880. In other words, once an accused has invoked his right to counsel, any statements given by the defendant in response to further police questioning are admissible only where (1) the defendant initiated further discussions with the police and (2) knowingly and intelligently waived the rights he had invoked. Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984). Further, “when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Edwards 451 U.S. at 484, 101 S.Ct. 1880.

¶ 30. There is no evidence that Pannell initiated further discussions with Officer Taylor after asserting his right to counsel. Our supreme court has held that in order for a defendant to initiate a “conversation” as the word is used in Edwards, his statements must express a desire to open up a generalized discussion about the investigation. Haynes v. State, 934 So.2d 983, 988-89 (¶¶ 19-23) (Miss.2006). It is clear to this Court that Pannell did not express a desire to open up a generalized discussion about the investigation after asserting his right to counsel. In fact, there is no evidence to show that he evinced a desire to open up any type of discussion. Pannell was prompted to speak only after Officer Taylor showed him the contents of the evidence file. Because we have already held that the actions of Officer Taylor constituted police-initiated custodial interrogation, a valid waiver cannot be established simply by showing that Pannell responded to the interrogation. Accordingly, Pannell’s supposed waiver of his constitutional rights during questioning was invalid.

¶ 31. Therefore, because Pannell’s confession was taken involuntarily in violation of his Fifth and Sixth Amendments rights and those rights were not validly waived, the trial court erred by failing to suppress Pannell’s confession.

II. Whether the circuit court’s failure to suppress the confession was harmless error.

¶ 32. We must now determine whether the admission of the confession constituted harmless error, thus, allowing the verdict to stand. “The admission of confessions obtained in violation of Edwards and its progeny constitutes trial error, and is therefore amenable to harmless error analysis.” Haynes, 934 So.2d at 991(¶ 31) (quoting Goodwin v. Johnson, 132 F.3d 162, 181 (5th Cir.1997) (questioned on other grounds)). “In order for a violation of a constitutional right to be held harmless, this Court must determine that the violation was harmless beyond a reasonable doubt.” Id. (quoting Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824,17 L.Ed.2d 705 (1967)). “Similarly, our supreme court has held ‘errors involving a violation of an accused’s constitutional rights may be deemed harmless beyond a reasonable doubt where the weight of the evidence against the accused is overwhelming.’ ” Id. (quoting Clark v. State, 891 So.2d 136, 142(¶29) (Miss.2004)). Our supreme court has also held that the admission of a confession in violation of the defendant’s constitutional rights is not harmless error where the confession in question was the only confession available. Balfour, 580 So.2d at 1210.

¶ 33. Here, we cannot say that the trial court’s error in admitting Pannell’s confession was harmless beyond a reasonable doubt. Without Pannell’s confession, the State presented only circumstantial evidence establishing that Pannell actually set fire to Teresa’s house. Although the State submitted testimony that placed Pannell at the scene of the crime on the day in question, it presented little concrete evidence actually showing Pannell was responsible for setting the fire. Pannell was also able to provide an alibi by presenting three separate witnesses who testified to his whereabouts on the day in question. Further, his confession was the only confession to the crime obtained by the police. As a result, the State relied heavily on the confession to prove Pannell’s guilt.

¶34. The prosecutor obviously knew the important role that the confession played in proving his case, as it appeared to be the focal point of his closing argument. Specifically, he used the confession to corroborate the testimonies of several of his witnesses and refute Pannell’s testimony. First, he focused on the fire marshal’s assertion that the fire was caused by an open flame device, stating:

It was an open flame device used to put the house on fire. I think [the fire marshal] used the analogy of putting the flag on fire and it burning and then causing the rest of the house to go up in flames. Like lighting the curtains in the patio room, which is exactly what the defendant said he did in his confession, in his statement that he gave to the authorities that he signed off on. That’s exactly what he said happened, and it matches up with what the fire marshal said caused the fire.

Second, the prosecutor used the confession to corroborate Herman’s testimony that he saw Pannell bring a gun with him to the house on the day of the fire. He stated, “[Pannell] even says in his statement that he had a gun with him, and that’s exactly what Herman Pannell told you. He came trotting up the driveway with a gun in his hand. So here is the defendant corroborating everything Herman says.... ” Third, the prosecutor concludes his initial closing argument by using Pannell’s confession as evidence of his guilt stating, “And we know from his confession that what he did is he went to that house, he went and busted out a window, and he took his lighter and he lit the curtains and he burned the house down.” Within the same paragraph, the prosecutor essentially misled the jury by implying that Pannell’s confession corroborated Teresa’s allegation that Pannell threatened to burn the house down the night before the fire. During this argument, the prosecutor argued:

So here is the defendant corroborating everything Herman says and corroborating everything his wife has said. He made the threat that he was going to burn it down. We know doggone well he was mad about the fact that his wife had possession of the house. He was there that day, just like he said and Herman Pannell said. And in his own confession he tells you that he burned the house down.

In fact, Pannell did not corroborate Teresa’s entire testimony. At trial, Pannell admitted to speaking to Teresa the night before the fire, but denied making any such threat. Finally, and most notably, the prosecutor expended his entire final closing argument to refute Pannell’s testimony that he only gave his confession because the officers promised him that, in doing so, he would be released from jail. Implying that Pannell had lied on the stand, the prosecutor argued to the jury that “if you go back there and decide to return a not guilty verdict in this case, you have disregarded the testimony of the law enforcement officers who took the statement ... where they said that [Pannell] freely and voluntarily gave the statement. ...” Viewing the closing argument as a whole, it appears the prosecutor used Pannell’s confession as his trump card when attempting to clear up the gray areas in his case.

¶ 35. It is also important to note that Pannell’s case was brought before two grand juries. As previously stated, the first grand jury met between March 28 and April 1, 2005. After reviewing the evidence before it, the grand jury failed to return a true bill against Pannell, finding insufficient evidence to indict him on the charge of arson. Of great significance is that though the grand jury appeared to meet after Pannell’s involuntary confession was taken by Officer Taylor, it appears likely, based on the record, that the State did not present his confession before the grand jury. It was only after the State failed to secure an indictment the first time, that the State went back before the grand jury, this time with Pannell’s involuntary confession. Having the benefit of Pannell’s involuntary confession, the second grand jury determined that there was enough evidence against Pannell to warrant an indictment.

¶ 36. Given these facts: that Pannell’s confession was the only confession available, that it appeared essential to the State’s ability to prove Pannell’s guilt, and that it appeared to be the weighing factor in the grand jury’s decision to indict Panned, the circuit court’s admission of the confession was not harmless error.

CONCLUSION

¶ 37. For the foregoing reasons, we find that the circuit court erred by failing to suppress Pannell’s confession, which was elicited as a result of police-initiated interrogation after he asserted his right to counsel. Further, the error was not harmless because without the confession, it appears that the State was unable to secure an indictment against Pannell and was only able to present circumstantial evidence of Panned’s guilt at trial. Therefore, the judgment of the circuit court is reversed and remanded for a new trial.

¶ 38. THE JUDGMENT OF THE PRENTISS COUNTY CIRCUIT COURT IS REVERSED AND REMANDED FOR A NEW TRIAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PRENTISS COUNTY.

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

CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY IRVING, J.

CARLTON, J.,

Concurring in Part, Dissenting in Part:

¶ 39. I agree with the majority’s finding that the trial court erred by admitting Raymond L. Panned’s confession, as the police’s conduct in showing Panned the evidence against him, after he raised his right to counsel, constituted the functional equivalent of police-initiated interrogation. However, I find that this error was harmless in light of the remaining evidence against Panned, which was overwhelming in my opinion. Accordingly, I respectfully dissent.

¶40. As the majority notes, “errors involving a violation of an accused’s constitutional rights may be deemed harmless beyond a reasonable doubt where the weight of the evidence against the accused is overwhelming.” Haynes v. State, 934 So.2d 983, 991(31) (Miss.2006) (quoting Clark v. State, 891 So.2d 136, 142(29) (Miss.2004)). I am mindful that error in admitting a tainted confession is rarely harmless in the absence of other admissible confessions. See Balfour v. State, 580 So.2d 1203, 1209-10 (Miss.1991) (citations omitted). However, contrary to the majority’s determination, I find that, aside from his confession, the evidence against Panned was overwhelming, and the trial court’s error in admitting the confession was harmless beyond a reasonable doubt.

¶ 41. I find most significant, the eyewitness testimony of Panned’s own brother, Herman, who testified that he encountered Pannell at a relative’s trailer near Teresa’s house on the morning of the fire. Pannell was angry because Teresa had locked the gate to the house, and Pannell told Herman:

I’m going to kill her and burn the house down. She ain’t taking my place. This is family. She’s not taking my place. I’ll burn it down before she does. I’m going to give you my phone number. You call me if any of the Roberts family comes over. You let me know.

¶ 42. Herman left the trailer and returned approximately an hour-and-a-half later to find Pannell running toward him from the direction of Teresa’s house. He saw Pannell toss either a rifle or a shotgun in his car and drive off. Minutes later, Herman noticed “big ole black smoke just a rolling” from Teresa’s house.

¶ 43. Additionally, Teresa testified that she saw Pannell at a restaurant the day before the fire. On this occasion, Pannell told her that he would burn the house down before he let her move back into it; Pannell admitted that he saw Teresa the day before the fire, and he was angry with her.

¶ 44. In my opinion, the evidence against Pannell was quite damning. He repeatedly stated his intent to burn down Teresa’s house, and he was seen fleeing from the direction of the nearby house only moments before the fire was discovered. Also, his motive was abundantly clear. Therefore, I find that the error in admitting Pannell’s confession was harmless beyond a reasonable doubt. For these reasons, I would affirm the judgment of conviction entered in the circuit court.

IRVING, J., JOINS THIS OPINION.

      . The exact date of the presentation of Pan-nell's case to the first grand jury is not completely certain. However, in the State's motion in limine filed on October 2, 2006, the State admits that the no true bill was issued between March 28 and April 1, 2005; the dates the grand jury was in session following Pannell’s confession.

      . Officer Taylor testified during the suppression hearing that he presented evidence before the grand jury on two separate occasions. When asked why he had to present the evidence a second time, Officer Taylor admitted that the grand jury returned a "no true bill” the first time that it met. The State also admitted in both its motion in limine filed on October 2, 2006, as well as its supplemental brief, that the no true bill was issued by the first grand jury.

      . The majority cites Balfour, 580 So.2d at 1210, for the proposition that “the admission of a confession in violation of the defendant’s constitutional rights is not harmless error where the confession in question was the only confession available.” In my opinion, this is an imprecise and overly broad statement of the law. In Balfour the court observed that where “the [erroneous] admission of a tainted full confession [has been] held harmless, almost without exception, the court has been presented with other full confessions which passed constitutional muster.” Balfour, 580 So.2d at 1209 (citations omitted) (emphasis added). Since Balfour, the Mississippi Supreme Court has held the admission of a tainted confession harmless in the absence of an additional admissible confession where the remaining evidence against the defendant was overwhelming. See Haynes, 934 So.2d at 991-92 (31-36).

      . From the record, it appears that this trailer was situated less than a quarter mile from Teresa's house.


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    Jermaine McKINNEY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-CP-01377-COA.
    Court of Appeals of Mississippi.
    Oct. 14, 2008.
    Rehearing Denied April 21, 2009.

      Jermaine McKinney, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, C.J., IRVING and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. On December 14, 2004, Jermaine McKinney was arrested in Clay County for aggravated assault and burglary of a dwelling. Thereafter, a grand jury returned an indictment charging McKinney with aggravated assault, burglary of a dwelling, and attempted burglary of a dwelling. McKinney pleaded guilty to attempted burglary of a dwelling, and the Circuit Court of Clay County sentenced him to eight years in prison with five years of post-release supervision.

¶2. McKinney filed a motion for post-conviction relief (PCR), claiming ineffective assistance of counsel. The circuit court dismissed McKinney’s motion without an evidentiary hearing. Aggrieved, McKinney appeals. He argues that: (1) he received ineffective assistance of counsel, (2) his sentence was illegal, (3) the circuit court misinformed him about his right to appeal from his sentence, and (4) the circuit court erred in dismissing his motion for post-conviction relief without an evidentiary hearing.

¶ 3. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 4. The circuit court may dismiss a PCR motion summarily and without an evidentiary hearing “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Rev.2007). On appeal, this Court will affirm the summary dismissal of a PCR motion if the petitioner has failed to demonstrate “a claim procedurally alive ‘substantially showing denial of a state or federal right,...'" Young v. State, 731 So.2d 1120, 1122(¶ 9) (Miss.1999) (quoting Myers v. State, 583 So.2d 174, 176 (Miss.1991)).

ANALYSIS OF THE ISSUES

I. Whether McKinney received ineffective assistance of counsel.

¶ 5. McKinney begins by arguing that he received ineffective assistance from the attorney who represented him in circuit court. McKinney takes issue with his counsel’s failure to object to an allegedly defective multi-count indictment. He alleges that the indictment was defective because (1) it did not specify the jurisdiction in which the crimes occurred; (2) it was based on false information; and (3) the allegations of the charged crimes were contradictory. McKinney further alleges that his counsel never informed him of the third count in the indictment until shortly before he entered a guilty plea to that count and that his counsel “mentally coerced” him into pleading guilty.

¶ 6. The standard to be applied to an ineffective assistance of counsel claim was set forth by the United States Supreme Court in Strickland, v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, which this Court must follow, the defendant bears the burden of proof that: (1) counsel’s performance was deficient, and (2) the deficient performance prejudiced the defense. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). We evaluate the totality of the circumstances in determining whether counsel was effective. Id. There is a strong but rebuttable presumption that counsel’s performance fell within the wide range of reasonable professional assistance. Id.

¶ 7. McKinney claims throughout his appellate brief that the record is replete with facts supporting his allegations. However, after careful review, we find nothing in the record to support any of his allegations of ineffective assistance of counsel. Contrary to McKinney’s assertions, the indictment specifies the jurisdiction as Clay County. Therefore, there is no merit to his claim that the jurisdiction was not included in the indictment. Regarding McKinney’s allegation that the charges were contradictory, Count III of the indictment was an attempt charge, which was a lessex’-includ-ed charge to Count I, burglary of a dwelling. There was no error in including the attempt charge because under Mississippi Code Annotated section 99-19-5(1) (Rev. 2007), a jury may convict a defendant of the crime charged in the indictment or of an attempt to commit the same offense.

¶8. McKinney’s remaining claims are supported only by the self-serving arguments in his brief that he was “mentally coerced” into pleading guilty and that there was falsified information. These arguments are wholly unsupported by the record. Ultimately, McKinney’s argument that he was prejudiced by his counsel’s deficient performance has no support in the record. This issue is without merit.

II. Whether the sentence imposed upon McKinney was illegal.

¶ 9. McKinney next argues that his sentence was illegal because the circuit court sentenced him to five years of post-release supervision, but the court did not order any portion of his eight-year sentence to be suspended. McKinney contends that he could not receive post-release supervision without also receiving a suspended sentence.

¶ 10. Mississippi Code Annotated section 47-7-34(1) (Rev.2004) provides as follows:

When a court imposes a sentence upon a conviction for any felony committed after June 30, 1995, the court, in addition to any other punishment imposed if the other punishment includes a term of incarceration in a state or local correctional facility, may impose a term of post-release supervision. However, the total number of years of incarceration plus the total number of years of post-release supervision shall not exceed the maximum sentence authorized to be imposed by law for the felony committed. The defendant shall be placed under post-release supervision upon release from the term of incarceration. The period of supervision shall be established by the court.

Therefore, as long as the total number of years of McKinney’s incarceration plus the total number of his years on post-release supervision do not exceed the maximum sentence authorized for attempted burglary of a dwelling, his sentence is not illegal. McKinney attempts to argue that his sentence was illegal because he received post-release supervision, but not a suspended sentence. However, there is no language in section 47-7-34 that requires a circuit court to order a suspended sentence in addition to post-release supervision. We find that this argument is without merit.

¶ 11. The circuit court sentenced McKinney to serve eight years in the custody of the Mississippi Department of Corrections, with five years of post-release supervision. As provided by Mississippi Code Annotated sections 97-1-7 (Rev.2006) and 97-17-23 (Rev.2006), which define attempt and burglary of a dwelling, the maximum sentence that McKinney could have received was twenty-five years. McKinney's sentence of eight years of incarceration and five years of post-release supervision was, therefore, within the statutory limits.

III. Whether the circuit court misinformed McKinney concerning his right to appeal.

12. Next, McKinney argues that the circuit court incorrectly informed him that upon pleading guilty, he could not appeal to the supreme court. He argues that the circuit court should have informed him that while he could not appeal his conviction, he could challenge an illegal sentence with a direct appeal.

¶ 13. “[A] defendant may pursue a direct appeal asserting the illegality of the sentence imposed pursuant to his guilty plea.” Flowers v. State, 978 So.2d 1281, 1285(¶ 11) (Miss.Ct.App.2008) (citing Jennings v. State, 896 So.2d 374, 377(¶ 16) (Miss.Ct.App.2004)). However, Mississippi Code Annotated section 99-35-101 (Rev. 2007) provides that “[a]ny person convicted of an offense in a circuit court may appeal to the supreme court, provided, however, an appeal from the circuit court to the supreme court shall not be allowed in any case where the defendant enters a plea of guilty.” A motion for post-conviction relief is the proper avenue for obtaining relief from a conviction. Gladney v. State, 963 So.2d 1217, 1222(¶14) (Miss.Ct.App.2007). It is, therefore, proper to inform a defendant that by pleading guilty and forgoing a jury trial, he waives his right to appeal his conviction. Jennings, 896 So.2d at 377(¶ 15); see also Gladney, 963 So.2d at 1222(¶ 13).

¶ 14. The circuit court did inform McKinney that his guilty plea waived his right to appeal. There is nothing in the record indicating that the circuit court misinformed McKinney by telling him that he could not appeal an illegal sentence. Additionally, as previously discussed, McKinney’s sentence was not illegal because the sentence was within the statutorily prescribed limits for a conviction of attempted burglary of a dwelling. This issue is without merit.

IV. Whether the circuit court erred in dismissing McKinney’s motion for post-conviction relief without an evidentiary hearing.

¶ 15. Lastly, McKinney claims that the circuit court erred when it dismissed his motion for post-conviction relief without conducting an evidentiary hearing. Mississippi Code Annotated section 99-39-11(2) provides that “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified.” Mississippi Code Annotated section 99-39-19(1) (Rev.2007) further provides that it is for the circuit court to determine whether an evidentiary hearing is required. As we have found, the circuit court correctly determined that McKinney’s PCR motion did not make a substantial showing of the denial of a state or a federal right and was plainly without merit. Therefore, the circuit court appropriately dismissed the PCR motion without an evidentiary hearing. Miss.Code Ann. § 99-39-11(2). This issue is without merit.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF CLAY COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.

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

      . Effective July 1, 2008, section 99-35-101 was amended to state that: "[a]ny person convicted of an offense in a circuit court may appeal to the Supreme Court. However, where the defendant enters a plea of guilty and is sentenced, then no appeal from the circuit court to the Supreme Court shall be allowed.” Miss.Code Ann. § 99-36-101 (Supp.2008). We note that the amendment may foreclose a defendant who has pleaded guilty from attacking the legality of his sentence on direct appeal. Because McKinney perfected his appeal prior to July 1, 2008, the amendment is not applicable to McKinney’s appeal.


author: GRIFFIS, J.,

text:
    Randy T. STORY, Appellant v. Cindy F. ALLEN, Appellee.
    No. 2007-CA-00312-COA.
    Court of Appeals of Mississippi.
    Dec. 9, 2008.
    Rehearing Denied April 21, 2009.
    Mark G. Williamson, Starkville, attorney for appellant.

      Allen Austin Vollor, Vicksburg, attorney for appellee.
    Before LEE, PJ., CHANDLER and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Randy T. Story filed a petition to modify custody and to hold Cindy F. Allen in contempt because she repeatedly interfered with his court-ordered visitation with his daughter, Francesca Haze Allen. The chancellor granted Randy’s petition for contempt, but he denied Randy’s petition to modify custody. On appeal, Randy argues that the chancellor committed manifest error in finding that it was in Francesca’s best interest to remain in Cindy’s custody. We reverse and remand for sufficient findings consistent with this opinion.

FACTS

¶ 2. In an order dated January 12, 2000, both Randy and Cindy agreed that Randy is Francesca’s father. The order provided that Cindy was to have physical custody of Francesca, and Randy was to have standard visitation.

¶3. Since the date that the order was entered, Cindy has repeatedly interfered with Randy’s visitation. On March 23, 2000, the chancery court found Cindy to be in contempt of the agreed order because she and Francesca moved, and Cindy told Randy that she and Francesca were moving to an address that Randy later determined was false. The chancellor ordered Cindy to pay Randy’s attorney’s fees and expenses. Again, in December 2001, Cindy was held in contempt for not adding Randy’s name to Francesca’s birth certificate.

¶ 4. In 2002, Cindy filed a complaint with the Hinds County Youth Court accusing Randy of sexually abusing Francesca. The Hinds County Youth Court case was closed in October 2003, and no government agency brought criminal proceedings against Randy for sexual abuse. From the institution of the youth court proceedings until 2004, Randy had only supervised contact with Francesca during his visitation.

¶ 5. In the summer of 2006, Cindy again interfered with Randy’s visitation. She told Randy that Francesca needed to attend summer school because her grades were bad. The school’s records revealed that Francesca had adequate grades, and she was scheduled to proceed to the next grade.

¶ 6. Cindy also interfered with Randy’s telephonic visitation. During the trial, Randy stated that Cindy would not answer the phone when he called Francesca during the hours authorized by the court. Randy produced his phone records, which support this contention.

¶ 7. On December 9, 2005, Randy informed Cindy that he wanted to exercise his Christmas visitation and that he would pick up Francesca in Casper, Wyoming where Cindy and Francesca lived. After Randy traveled to Wyoming, he learned that Francesca was at Cindy’s brother’s house in Mississippi. Randy testified that he had planned to take Francesca to his parent’s house. Instead, Randy spent that Christmas alone.

¶ 8. After the conclusion of the trial, the chancellor found Cindy to be in contempt. The chancellor ordered that “(A) [Cindy] shall strictly comply with all orders of this Court including this Order and shall foster a good father/daughter relationship with [Randy] and Francesca. (B) [Randy] is awarded a judgment against [Cindy] for $31,285.24 for attomeyfs] fees and expenses.”

¶ 9. Also, in the order, the chancellor determined that there had been a material change in circumstances that adversely affected Francesca. The chancellor then conducted an Albright analysis. The chancellor ended his Albright analysis by stating, “[d]espite [Cindy’s] conduct, the Court, with serious reservation, believes that Francesca’s best interest is served by [Cindy] having ... physical custody. The Court assures [Randy] that her further interference with [Randy’s] relationship with his daughter will have serious consequences.” (Emphasis added). It is from this order that Randy now appeals.

STANDARD OF REVIEW

¶ 10. “In domestic relations cases, [the appellate court’s] scope of review is limited by the substantial evidence/manifest error rule.” Samples v. Davis, 904 So.2d 1061, 1063-64(¶ 9) (Miss.2004) (citing Jundoosing v. Jundoosing, 826 So.2d 85, 88(¶ 10) (Miss.2002)). “[We] will not disturb the chancellor’s opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id at 1064(¶ 9) (quoting Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996)).

ANALYSIS

¶ 11. In Mabus v. Mabus, 847 So.2d 815, 818(¶ 8) (Miss.2003) (citations omitted), the supreme court stated the legal standard for a child custody modification proceeding is as follows:

[The] burden of proof is on the movant to show by a preponderance of the evidence that a material change in circumstances has occurred in the custodial home.
In the ordinary modification proceeding, the non-custodial party must prove: (1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child’s welfare; and (3) that the child’s best interests mandate a change of custody.

¶ 12. The chancellor determined that Cindy’s intentional interference with Francesca’s relationship with Randy constituted a material change in circumstances which adversely affected Francesca. The chancellor, however, determined that it was in Francesca’s best interest for Cindy to retain physical custody. Randy argues that this determination constitutes manifest error.

¶ 13. The supreme court has enumerated several factors to help chancellors determine what is in the “best interest” of the child in a custody dispute. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). These factors include:

[age,] health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship.

Id. at 1005. The Albright factors are not to be treated as “the equivalent of a mathematical formula.” Lee v. Lee, 798 So.2d 1284, 1288(¶ 15) (Miss.2001).

¶ 14. During his Albright analysis, the chancellor concluded that the following factors favored Cindy: the continuity of care; the emotional ties of parent and child; and the home, school, and community record of the child. The chancellor then concluded that the following factors favored Randy: the stability and responsibilities of employment, moral fitness of the parent, and the stability of the home environment. The chancellor found all other factors to be neutral and allowed Cindy to retain custody.

¶ 15. While addressing a case similar to this one, our supreme court stated that:

a non-custodial parent’s right to visitation is a “right more precious than any property right.” One parent ... cannot be permitted to unilaterally deny the other’s right to visit with his child. At the same time, “a change in custody will not be made for the purpose of rewarding one parent or punishing the other.”

Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993) (internal citations omitted). In Ash, the supreme court affirmed a chancellor’s determination to modify custody from the mother to the father because the mother continuously interfered with the father’s visitation. Id. at 1267.

¶ 16. In Jernigan v. Jernigan, 830 So.2d 651, 654(¶ 6) (Miss.Ct.App.2002), this Court affirmed a chancellor’s modification of child custody from the mother to the father because the mother had repeatedly interfered with the father’s relationship with his child. The Court found that the mother had “moved several times ... promoted the idea that [the father] had sexually abused the child when no medical evidence existed to support such allegation, ... and [the mother] failed to cooperate with the visitation order of the court.” Id. at 653(¶ 5).

¶ 17. In Mord v. Peters, 571 So.2d 981, 983 (Miss.1990), the Mississippi Supreme Court, when discussing the importance of visitation, stated, “[s]o important is the child’s right and a non-custodial parent’s right to develop this relationship, some courts have permitted a change of custody where it is determined that the custodial parent has interfered with a non-custodial parent’s visitation rights.”

¶ 18. Cindy argues that cases, such as Jemigan and Ash, are distinguishable. Cindy claims that in Jemigan and Ash the appellate courts affirmed the chancellor’s determination. Thus, Cindy argues that this Court must affirm the chancellor’s determination because of the standard of review.

¶ 19. Indeed, this Court may only disturb a chancellor’s determination regarding a modification of custody if the chancellor is manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Jernigan, 830 So.2d at 652(¶ 2). This principle, however, does not mean that this Court may never disturb a chancellor’s decision regarding modification of custody. The supreme court has emphasized that “where the chancellor improperly considers and applies the Albright factors, an appellate court is obliged to find the chancellor in error.” Hollon v. Hollon, 784 So.2d 943, 946(¶ 11) (Miss.2001) (citing Jerome v. Stroud, 689 So.2d 755, 757 (Miss.1997)).

¶20. After reviewing the record, the Court finds that the chancellor committed manifest error during the Albright analysis. This conclusion is based upon the inconsistencies in the chancellor’s order regarding the Albright factors of continuity of care and emotional ties of the parent and child.

¶ 21. In his order, the chancellor stated the following regarding the continuity of care factor: “Francesca has been with her mother most of her life. Her separation from her father is due to [Cindy’s] conduct. However, this factor favors [Cindy].” It is neither logical nor proper to favor one of the parents, under an Al- bright factor, because of that parent’s malfeasance. The chancellor admitted in his order that the continuity of care factor favored Cindy because Cindy repeatedly interfered with Randy’s relationship with Francesca. Equity dictates that the chancellor should have at least found this factor to be neutral. Therefore, we find that the chancellor committed manifest error with regard to the analysis of the continuity of care.

¶ 22. The chancellor also stated the following regarding the emotional ties of the parent and child. “Francesca is close emotionally to her parents and the parents to her. [Cindy] has failed Francesca by not cultivating Francesca’s relationship with her father. This factor slightly favors [Cindy].” Again, we find that the chancellor’s order is not logical or proper to reward Cindy’s interference with Randy’s relationship with Francesca. Again, equity dictates that the chancellor should have at least found this factor to be neutral. Therefore, we find that the chancellor committed manifest error with regard to the analysis of the emotional ties of the parent and child.

¶ 23. Several of the chancellor’s factual findings, which are supported by the record, appear to be facially inconsistent with the chancellor’s weighing of the Albright factors. In the absence of some cogent explanation for that facial inconsistency, it must be considered manifest error. In the absence of that cogent explanation, this manifest error appears to have led to the inequitable result of rewarding Cindy for her persistent interference with Francesca’s right to have a meaningful relationship with her father. Therefore, this Court is obligated to reverse the chancellor’s denial of Randy’s petition to modify custody and to remand this case to the chancellor to undertake either a new analysis of the Albright factors, which should include a cogent explanation of any facial inconsistency between the facts and the weight accorded to any individual factor, or a new evidentiary hearing to reconsider the Al-bright factors.

¶ 24. THE JUDGMENT OF THE CHANCERY COURT OF OKTIBBEHA COUNTY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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


author:
SEE, Justice.
     BOLIN, Justice

text:
    J.K., individually and as next friend of his minor children, K.K. and S.K.; and P.K. v. UMS-WRIGHT CORPORATION et al.
    1060407.
    Supreme Court of Alabama.
    Sept. 19, 2008.

      Chris N. Galanos, Mobile; and James J. Dailey, Mobile, for appellants.
    Christina M. Adcock of Adams & Reese, LLP, Mobile, for appellees.
   SEE, Justice.

J.K., individually and as next friend of his minor children K.K. and S.K., and P.K., the mother of the minor children, appeal from a judgment enforcing a settlement agreement with the defendants, UMS-Wright Corporation; Dr. Tony Havard, individually and in his official capacity as headmaster of the school; Mr. Ed Lathan, individually and in his official capacity as upper-school principal; and the members of the board of trustees of UMS-Wright. We affirm in part, reverse in part, and remand.

I. Facts and Procedural History

UMS-Wright Corporation operates UMS-Wright Preparatory School, which is located in Mobile. In 2001, J.K. and P.K. had three children, V.K., S.K., and K.K., enrolled at UMS-Wright Preparatory School. On November 8, 2001, V.K. was placed on behavior and academic probation. According to a memorandum prepared by Principal Lathan, on the day after V.K. was placed on probation he violated the terms of that probation by making physical threats toward another student. Principal Lathan recommended that V.K. be expelled. On November 10, Principal Lathan informed P.K. that V.K. was being expelled from UMS-Wright Preparatory School.

On November 17, 2004, V.K. entered the UMS-Wright campus. School administrators approached him and asked him to leave. UMS-Wright sent a letter to J.K. and P.K. informing them that V.K. had violated UMS-Wright policy by entering the campus without permission, that V.K. was not to enter the campus without prior administrative permission, and that the letter was to serve as “a trespassing after warning letter.” Principal Lathan conferred with P.K. to discuss the trespassing incident. Principal Lathan informed P.K. that, if V.K. continued to enter the UMS-Wright campus, he would be arrested and that any further incidents involving V.K. could jeopardize S.K. and K.K.’s enrollment at the school.

During the 2005-2006 school year, S.K. and K.K. were enrolled as students at the school. On March 28, 2006, V.K., who was by then an adult, and two unidentified companions entered the UMS-Wright campus and confronted a student. V.K., or one of his companions, assaulted the student and knocked him unconscious. Another student attempted to help his unconscious classmate. While the student was struggling with one of V.K.’s companions, his wallet fell onto the ground, and one of V.K.’s companions took the wallet. V.K. and his companions then left the campus.

The next day Dr. Havard learned about the incident. He believed that, so long as S.K. and K.K. were enrolled as students, V.K. would continue to have a reason to come onto the campus. Therefore, he concluded, S.K. and K.K.’s enrollment at UMS-Wright Preparatory School posed a safety risk to students and staff. On March 30, 2006, Dr. Havard met with P.K. and told her that S.K. and K.K. were being dismissed as students. Security escorted P.K., S.K., and K.K. from the UMS-Wright campus.

On April 6, 2006, J.K., individually and as next friend of S.K. and K.K., and P.K. sued UMS-Wright Corporation, Dr. Ha-vard, and Principal Lathan (hereinafter referred to collectively as “UMS-Wright”), as well as the members of the board of trustees of UMS-Wright Corporation, alleging negligence, breach of contract, and due-process violations. J.K. and P.K. also alleged against Dr. Havard and Principal Lathan, both in their individual capacities and as employees of UMS-Wright Corporation, intentional infliction of emotional distress as to P.K., S.K., and K.K. In the final count of the complaint, J.K. and P.K. alleged that the members of the board of trustees negligently and/or wantonly failed to supervise the school’s employees and staff. J.K. and P.K. also moved for a temporary restraining order, contending that S.K. and K.K. would be irreparably harmed if they were not immediately reinstated as students and contending that an expulsion on their academic records would adversely impact their prospects for admission to the college or university of their choice. After hearing arguments, the trial court denied the motion for a temporary restraining order.

Four days later, J.K. and P.K. moved for a preliminary injunction. The trial court held a hearing on the motion, but the parties reached an agreement before the trial court decided the motion. The agreement allowed S.K. and K.K. to complete their school year at home but prohibited S.K. and K.K. from entering the UMS-Wright campus or attending any school functions. This agreement effectively rendered moot the pending petition for injunc-tive relief.

On April 20, 2006, the members of the board of trustees moved the trial court to dismiss all claims against them, arguing that pursuant to § 10-11-3, Ala.Code 1975, the trustees, as non-compensated officers of a not-for-profit institution, are immune from suit. The trial court heard oral arguments from the parties and dismissed with prejudice all the claims against the members of the board of trustees. J.K. and P.K. moved the trial court to reconsider that dismissal, but the trial court denied the motion.

The remaining parties entered into settlement negotiations. They discussed the dismissal of the action in exchange for a letter of apology from Dr. Havard. At a second meeting, Chris Galanos, one of the attorneys for J.K. and P.K., apparently represented to the other parties that he had the authority to settle the ease. Counsel for UMS-Wright presented J.K. and P.K’s attorneys with a proposed letter of apology, a stipulation for dismissal with prejudice, a proposed settlement agreement, and a proposed release. J.K. and P.K’s attorneys reviewed the documents and signed the stipulation for dismissal; however, they did not sign the proposed settlement agreement or proposed release, in order to give J.K. the opportunity to review the documents, including the proposed letter of apology. According to UMS-Wright, J.K. and P.K. were to sign the settlement agreement, and counsel for UMS-Wright would then file the joint stipulation for dismissal.

J.K. refused to sign the settlement agreement. Consequently, UMS-Wright’s attorney wrote a letter to J.K. and P.K’s counsel stating that it was his belief that the parties had reached a valid settlement and that if J.K. and P.K. did not sign the settlement agreement UMS-Wright would move to enforce the settlement agreement. Counsel for J.K. and P.K. responded by letter indicating that his clients were willing to settle the case if Dr. Havard would agree to sign a proposed letter of apology drafted by J.K. The attorneys for the parties scheduled a meeting between Dr. Ha-vard and J.K. so that they could attempt to resolve the dispute. That meeting, however, did not occur.

UMS-Wright moved to enforce the settlement agreement. J.K. and P.K. responded that the settlement agreement was not enforceable against S.K. and K.K., because a next friend does not have the authority to settle the case on behalf of a minor. Therefore, they argued, the settlement could not be enforced against S.K. and K.K. without the appointment of a guardian ad litem and a pro ami hearing. Also, although J.K. and P.K. acknowledged that an attorney has the authority to bind a client, they argued that the settlement agreement is unenforceable against them because, they say, it does not comply with the requirements of § 34-3-21, Ala.Code 1975. Specifically, J.K. and P.K. contended that the agreement does not satisfy the requirements of the statute because it had not been reduced to writing or entered upon the minutes of the court and because there had been no meeting of the minds as to the terms of the settlement. UMS-Wright agreed that a pro ami hearing was needed to enforce the settlement agreement against S.K. and K.K.

The trial court held a hearing and granted UMS-Wright’s motion to enforce the settlement agreement against J.K. and P.K. and, based on the stipulation of dismissal, dismissed J.K. and P.K.’s claims against UMS-Wright and scheduled a pro ami hearing to determine whether the agreement was enforceable as to the minor children.

J.K. and P.K. moved the trial court to vacate and/or set aside the dismissal of them claims. J.K. and P.K. reiterated their argument that the settlement agreement was unenforceable against them because it had not been reduced to writing or entered upon the minutes of the court. J.K. and P.K. argued further that their attorney did not have the authority to bind them to the settlement agreement.

The trial court held a pro ami hearing that included testimony from J.K., P.K., S.K., and K.K. At the conclusion of the hearing, the trial judge found that the settlement was in the best interests of the children and dismissed the remaining claims against UMS-Wright. He later entered a final order denying J.K. and P.K.’s motion to vacate or set aside the dismissal of their claims and confirming the finding that the settlement was in the best interests of the children. J.K. and P.K. appeal.

II. Dismissal of the Board, of Trustees

A. Standard of Review

“The appropriate standard of review of a trial court’s grant of a motion to dismiss under Rule 12(b)(6) is
“ ‘ “ ‘whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail.’ ” ’ ”

Rester v. McWane, Inc., 962 So.2d 183, 185 (Ala.2007) (quoting EB Invs., L.L.C. v. Atlantis Dev., Inc., 930 So.2d 502, 507 (Ala.2005), quoting in turn other cases).

B. Analysis

J.K. and P.K. first argue that the trial court erred in dismissing the members of the board of trustees as defendants only two weeks after their action was filed. In their motion to dismiss, the trustees argued that they were entitled to immunity under § 10-11-3, Ala.Code 1975, which provides:

“Any noncompensated officer of a qualified entity shall be immune from suit and not subject to civil liability arising from the conduct of the affairs of such qualified entity except when the act or omission of such officer, which gives rise to a cause of action, amounts to willful or wanton misconduct or fraud, or gross negligence. Provided however, such immunity shall not, except to such extent as may otherwise be provided by law, extend to the qualified entity, to a for-profit subsidiary of such qualified entity or to the officers of such for-profit subsidiary but only to the qualified entity’s officers as defined in this chapter. Nothing contained herein shall be construed to immunize the corporate entity or qualified entity for the acts or omissions of noncompensated officers as defined in this chapter.”

A qualified entity is defined as “[a]ny not-for-profit corporation, association or organization which is exempt from federal income taxation under Section 501(c) of the Internal Revenue Code of 1954, as amended.” Section 10 — 11—2(l)(a), Ala.Code 1975. J.K. and P.K. contend that the trustees are not entitled to the qualified immunity provided by § 10-11-3 because their complaint alleged that the board of trustees had acted “negligently/wantonly.” Therefore, we must determine whether J.K. and P.K. alleged any cause of action that could overcome the trustees’ claim of immunity.

J.K. and P.K. named the board of trustees as defendants in four of the six claims asserted in the complaint. The only claims that could arguably overcome the trustees’ invocation of immunity are the claims in Counts one and six of the complaint, alleging, as to the trustees, “negligent/wanton” conduct and “negligentywanton” failure to supervise.

J.K. and P.K. do not adequately demonstrate in their brief to this Court how the trial court erred in dismissing with prejudice them claims against the trustees. They cite Shaddix v. United Ins. Co. of America, 678 So.2d 1097 (Ala. Civ.App.1995), for the general proposition that a dismissal based upon a failure to state a claim for which relief can be granted is properly granted only when the plaintiff cannot prove any set of facts that would entitle the plaintiff to relief. Although this accurately describes the legal standard with which a court evaluates a Rule 12(b)(6), Ala. R. Civ. P., motion, J.K. and P.K. do not point to any set of facts that would entitle them to relief on their claims that the trustees acted wantonly by dismissing S.K. and K.K. as students. J.K. and P.K. merely cite to page 7 of their complaint, where they allege that the defendants, including the members of the board of trustees, “owed the Plaintiffs’ minor children the duty to fairly and impartially promulgate rules governing honor, personal conduct, and academic standards and avoid arbitrary and capricious decisions in enforcing those rules,” and that UMS-Wright and the members of the board of trustees wantonly breached those duties by expelling the children based upon the conduct of a third party. These allegations do not demonstrate that the members of the board of trustees were or could have been wanton in the performance of their alleged responsibilities. Not only do J.K. and P.K. not describe with any specificity conduct of the trustees that they consider to have been wanton, but they also fail to cite any statute or caselaw that defines wantonness, and they do not illustrate how the actions by the members of the board of trustees could satisfy any such definition. “ ‘ “Where an appellant fails to cite any authority, we may affirm, for it is neither our duty nor function to perform all the legal research for an appellant.” ’ ” McCutchen Co. v. Media General, Inc., 988 So.2d 998, 1004 (Ala.2008) (quoting Henderson v. Alabama A & M Univ., 483 So.2d 392, 392 (Ala.1986), quoting in turn Gibson v. Nix, 460 So.2d 1346, 1347 (Ala.Civ.App.1984)). Because J.K. and P.K. have not provided us with a standard against which to evaluate the trustees’ allegedly wanton behavior in expelling the children on the basis of a third party’s actions, the trial court’s judgment on this issue is affirmed.

J.K. and P.K. also argue that the motion to dismiss filed by the members of the board of trustees should have been treated as a motion for a summary judgment, because in ruling on the motion the trial court considered matters outside the pleadings. J.K. and P.K. cite Phillips v. AmSouth Bank, 833 So.2d 29 (Ala.2002), for the proposition that a trial court commits reversible error if it converts a Rule 12(b)(6), Ala. R. Civ. P., motion into a motion for a summary judgment under Rule 56, Ala. R. Civ. P., and enters a summary judgment without affording the opposing party a reasonable opportunity to conduct discovery. See Rule 12(c), Ala. R. Civ. P. In Phillips, this Court stated that when a motion to dismiss is converted into a motion for a summary judgment, the nonmovant is entitled to receive “ ‘(1) adequate notice that the trial court intends to treat the motion as one for summary judgment and (2) a reasonable opportunity to present material in opposition.’ ” 833 So.2d at 31 (quoting Graveman v. Wind Drift Owners’ Ass’n, 607 So.2d 199, 202 (Ala.1992)). However, J.K. and P.K. do not argue that the members of the board of trustees submitted additional materials with their motion to dismiss. In fact, the materials in the record indicate that the trustees did not submit any accompanying affidavits or documents with their motion to dismiss. Therefore, Phillips does not support J.K. and P.K.’s argument. Because J.K. and P.K. have not adequately articulated how the trial court erred in dismissing with prejudice their claims against the members of the board of trustees, we affirm the trial court’s dismissal of those claims.

III. Enforceability of Settlement Agreement

J.K. and P.K. also argue that the trial court erred in finding that the settlement agreement was enforceable, because, they say, J.K. and P.K.’s attorney did not have express authority to bind them and them minor children to a settlement agreement. Section 34-3-21, Ala.Code 1975, provides: “An attorney has authority to bind his client, in any action or proceeding, by any agreement in relation to such case, made in writing, or by an entry to be made on the minutes of the court.” In applying § 34-3-21, Alabama courts have recognized that

“ ‘ “[a]n attorney may not consent to a final disposition of his client’s case without express authority. Although an attorney of record is presumed to have his client’s authority to compromise and settle litigation, a judgment entered upon an agreement by the attorney may be set aside on affirmative proof that the attorney had no right to consent to its entry.” ’ ”

Roberson v. State ex rel. Smith, 842 So.2d 709, 712 (Ala.Civ.App.2002) (quoting Warner v. Pony Express Courier Corp., 675 So.2d 1317, 1320 (Ala.Civ.App.1996), quoting in turn Blackwell v. Adams, 467 So.2d 680, 684-85 (Ala.1985)). “ ‘ “[Wjhether an attorney has authority to bind his client by an agreement to settle the case by consent is a question of fact.” ’ ” Alexander v. Burch, 968 So.2d 992, 996 (Ala.2006) (quoting Warner, 675 So.2d at 1320, quoting in turn Blaclavell, 467 So.2d at 684). “Where a trial court does not make an express finding of a particular fact, this court will assume that it found the fact necessary to support its judgment unless the finding of fact would be clearly erroneous and against the great weight of the evidence.” Benitez v. Beck, 872 So.2d 844, 847 (Ala.Civ.App.2003) (citing Jones v. Stedman, 595 So.2d 1355 (Ala.1992)).

J.K. and P.K. also contend that the trial court erred in finding that the settlement agreement was enforceable because, they argue, the trial court never held a hearing to determine whether J.K. and P.K.’s attorney in fact had express authority to settle the case. J.K. and P.K. cite Alexander v. Burch for the proposition that “[a]n express finding of fact that the attorney had the authority to bind his client is a condition precedent to a conclusion that a settlement exists.” J.K. and P.K’s brief at 23. They maintain that “[t]he only way, therefore, to have determined the presence or absence of ‘express, special authority’ would have been to conduct an evidentiary hearing for the purpose of considering the testimony of [J.K.] and Mr. Galanos, since they were the only two persons who participated in the conversation.” J.K. and P.K’s reply brief at 10-11.

In Alexander, the plaintiff contested the enforceability of a proposed settlement agreement because the plaintiff insisted that she never authorized her attorney to settle her personal-injury claim for the particular amount in the settlement offer. At a hearing to determine the enforceability of the settlement agreement, the trial judge heard conflicting testimony from the plaintiff and her attorney concerning whether the attorney had authority to settle the plaintiffs claim. Alexander, 968 So.2d at 995. The trial judge found that the settlement agreement was enforceable. However, we reversed the judgment of the trial court, concluding that “[i]f the judge had actually made a finding accepting [the attorney’s] version of the disputed facts, or if the state of the record was such that a finding to that effect could be deemed implicit in the trial court’s order, we would affirm.” 968 So.2d at 997-98. We remanded the case with instructions for the trial court to explain on return to remand whether it had made a finding of fact regarding the settlement authority of the plaintiffs attorney.

Relying on Alexander, J.K. and P.K. argue that the trial court erred by failing to conduct a hearing to make an explicit finding of fact regarding whether their attorney was authorized to accept the proposed settlement agreement. In Alexander, the trial court had not made an explicit finding that the plaintiffs attorney was authorized to settle the plaintiffs claim. Further, the conflicting evidence in the record in Alexander, including a statement by the trial judge that he was forgoing making a finding on the authority issue, did not allow this Court to assume that the trial judge had found that the attorney was authorized to settle the plaintiffs claim.

In this case, as in Alexander, the trial court did not make a finding of fact that J.K. and P.K’s attorney was authorized to settle the case. Moreover, J.K. and P.K’s attorney’s refusal to sign the settlement agreement and to approve the letter, J.K’s rejection of the proposed apology letter and his statement to the attorney that his authority to settle was subject to J.K.’s approval of the apology letter, the ongoing telephone conversations between counsel for UMS-Wright and J.K. and P.K.’s attorney after the settlement meeting, and the later scheduled-but-canceled meeting between J.K. and Dr. Havard indicate that no settlement had been reached because the attorneys were awaiting J.K. and P.K.’s approval of the settlement agreement. This Court will not assume that the trial court made the finding that J.K. authorized J.K. and P.K’s attorney to settle the case because that would appear to be against the great weight of the evidence. See Benitez, 872 So.2d at 847 (“Where a trial court does not make an express finding of a particular fact, this court will assume that it found the fact necessary to support its judgment unless the finding of fact would be clearly erroneous and against the great weight of the evidence.”).

This case, however, differs from Alexander in that J.K. and P.K. have argued only that the agreement was unenforceable because it was not reduced to writing or entered on the minutes of the court and because there was no meeting of the minds as to the terms of the agreement. J.K. and P.K. raised the argument that their attorney lacked the authority to settle the case in their postjudgment motion after the trial court had already found that the settlement agreement was enforceable and dismissed the claims against UMS-Wright. The trial court conducted a hearing, on September 27, 2006, to decide whether the settlement agreement was enforceable. Nothing in J.K. and P.K.’s response to UMS-Wright’s motion to enforce the settlement, or in the record, indicates whether J.K. and P.K’s attorney argued at that hearing that Galanos was not authorized to settle the case. As UMS-Wright points out, it was not until after the trial court decided that the settlement agreement was enforceable that J.K. and P.K. first argued that their attorney did not have the authority to settle the case. Because the issue of Galanos’s authority to settle was not before the trial court at the enforceability hearing, the trial judge was not required to make a finding of fact on that issue, and Alexander is inapposite. Therefore, we must determine whether a challenge to an attorney’s authority to settle a case, raised in a postjudgment motion, requires the trial court to conduct a hearing and make a finding of fact as to whether the attorney was authorized to settle the claim. We hold that it does.

In Warner v. Pony Express Courier Corp., supra, the attorneys met in the trial judge’s chambers to discuss the possibility of settling Warner’s claim. During the settlement negotiations, Warner’s attorney represented that Warner would accept $7,500 as a settlement for all demands. That settlement offer was ultimately accepted, and the trial court dismissed Warner’s action with prejudice. Warner moved the trial court to set aside the dismissal, arguing that he was unaware of the settlement and that he would not have agreed to its terms. Warner, 675 So.2d at 1319. The Court of Civil Appeals cited Jones v. Blanton, 644 So.2d 882 (Ala.1994), and Jones v. Stedman, 595 So.2d 1355 (Ala.1992), for the rule that “if a party is present when a settlement agreement is announced by counsel in open court and the party fails to object to the settlement, the trial court is warranted in concluding that counsel has the apparent authority to settle the dispute.” Warner, 675 So.2d at 1320. The Court of Civil Appeals concluded, however, that there was insufficient evidence that Warner’s attorney had settlement authority because the trial court relied on an agreement between the attorneys when it dismissed the claims, and there was “no indication in the record ... that Warner was present during the settlement discussion in chambers.” Warner, 675 So.2d at 1321. The Court of Civil Appeals, therefore, reversed the trial court’s order denying the motion to vacate its dismissal and remanded the case to the trial court with instructions “to conduct a hearing to determine whether, at the time the settlement was stated to the court and the dismissal was entered, Warner’s attorney was authorized to settle Warner’s claims for $7500.” Warner, 675 So.2d at 1321.

In this case, neither J.K. nor P.K. was present at the settlement negotiations or at the enforceability hearing. Instead, the trial court relied on an agreement between counsel when it found that the settlement agreement was enforceable. Although the trial court was apparently not faced with the question whether J.K. had authorized J.K. and P.K.’s attorney to settle the case, the trial court was presented with that precise question when J.K. and P.K. moved the trial court to set aside or to vacate the dismissal of them claims against UMS-Wright. At that point, the trial court should have held a hearing to determine whether J.K. had authorized J.K. and P.K.’s attorney to settle the case. See Roberson, 842 So.2d at 713 (holding that “the trial court [exceeded] its discretion in failing to hold a hearing on the issue whether [counsel] had the authority to enter into the stipulation agreement on behalf of Roberson” when Roberson raised the issue of his attorney’s authority to settle in a motion for a new trial); see also, Garabedian v. Allstates Eng’g Co., 811 F.2d 802, 804 (3d Cir.1987) (stating that the district court erred in denying the motion to vacate because “[t]he district court should have held a hearing to determine whether Garabedian had indeed authorized Di Pietro to settle on the terms set forth in the proposed settlement agreement.”); Greater Kansas City Laborers Pension Fund v. Paramount Indus., Inc., 829 F.2d 644, 646 (8th Cir.1987) (holding that the trial court “erred in summarily denying the motion [to vacate the judgment] without any type of evidentiary hearing” after the plaintiffs argued that the attorney had agreed to the settlement without their consent). Because we hold that the trial court erred in denying the motion to set aside or to vacate its dismissal of J.K. and P.K’s claims without first holding a hearing to make a finding of fact as to whether J.K. had authorized J.K. and P.K’s attorney to settle the case, we reverse that aspect of the trial court’s judgment and remand this case with instructions that it conduct such a hearing and make an express finding.

Conclusion

We affirm that portion of the trial court’s judgment dismissing the claims against the members of the board of trustees. We reverse the trial court’s judgment denying J.K. and P.K.’s motion to set aside or vacate the dismissal of their remaining claims as to all other defendants, and we remand this case for the trial court to conduct a hearing to determine whether J.K. had authorized J.K. and P.K’s attorney to settle the case.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, PARKER, and MURDOCK, JJ., concur.

BOLIN, J., concurs in part and dissents in part.

BOLIN, Justice

(concurring in part and dissenting in part).

I agree with that portion of the main opinion that holds that the claims against the board of trustees of UMS-Wright Preparatory School were properly dismissed. However, I believe that J.K. and P.K. entered into a binding settlement agreement; therefore, I dissent from that portion of the main opinion reversing the trial court’s order denying J.K. and P.K’s motion to set aside the dismissal of their remaining claims and remanding the case for a hearing.

      . This case was originally assigned to another Justice on this Court; it was reassigned to Justice See on April 22, 2008.

      . Upon motion by UMS-Wright and the members of the board of trustees, V.K. was added as a third-party defendant.

      . J.K. later informed Galanos that Galanos’s authority to settle the case was subject to J.K.'s prior approval of Dr. Havard's apology letter.

      . Section 34-3-21, Ala.Code 1975, provides:
      "An attorney has authority to bind his client, in any action or proceeding, by any agreement in relation to such case, made in writing, or by an entry to be made on the minutes of the court.”

      . The Internal Revenue Code expressly provides that ”[c]orporations, and any community chest, fund, or foundation organized and operated exclusively for ... educational purposes” qualifies as a tax-exempt entity. I.R.C. § 501(c)(3) (2000).

      . J.K. and P.K. also alleged in the complaint that the trustees wantonly failed to supervise the school’s employees. However, this claim is neither raised nor addressed in J.K. and P.K's principal or reply briefs on appeal; thus, we do not address this argument. " ‘[W]hen the appellant fails to invite the appellate court’s review of any issues raised from the court below, the trial court’s judgment is due to be affirmed.’ " Waters v. University of Alabama Hosps., 591 So.2d 450, 451 (Ala.1991) (quoting Wilger v. James, 431 So.2d 1166, 1168 (Ala.1983)).

      . J.K. and P.K. also cite Parmater v. Amcord, Inc., 699 So.2d 1238 (Ala.1997), for the proposition that a dismissal with prejudice operates as an adjudication on the merits. J.K. and P.K. contend that "[t]he dismissal of the Board clearly was not an adjudication on tlte merits and resulted in a permanent denial of the fundamental right to prove a claim made in good faith.” J.K. and P.K.'s brief at 35. However, Pannater does not support J.K. and P.K.’s argument because this Court in Parma-ter merely concluded that a dismissal with prejudice can operate as an adjudication on the merits for res judicata purposes. 699 So.2d at 1241 ("Iowa courts have held that a settlement or consent judgment and subsequent dismissal with prejudice ... can be the basis of a plea of res judicata.... Likewise, this Court has also held that a dismissal with prejudice is an adjudication on the merits.”).

      . Because we remand this case with instructions for the trial court to conduct a hearing to resolve whether J.K. and P.K.'s attorney was authorized to settle the case, we do not reach the remaining issues raised in this appeal.