author: BARNES, J.,

text:
    William Leddell COGGINS Jr., Appellant v. Alicia Alvarado COGGINS, Appellee.
    No. 2010-CA-00959-COA.
    Court of Appeals of Mississippi.
    Feb. 14, 2012.

      R. Shane McLaughlin, Nicole H. McLaughlin, D. Kirk Tharp, attorneys for appellant.
    Arnold F. Gwin, Greenwood, Patricia A. Rodgers, attorneys for appellee.
    Before IRVING, P.J., BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court:

¶ 1. William Leddell Coggins Jr. (“Bill”) appeals the judgment of the Chancery Court of Montgomery County, raising three issues. Bill claims the chancellor erred in awarding Alicia Alvarado Coggins alimony and in naming her the beneficiary of $175,000 in life insurance. He also claims the chancellor abused his discretion in calculating Bill’s monthly child-support payment. We find no error regarding the child-support payment. We reverse the chancellor’s judgment and remand this case for further proceedings on the issue of alimony because the chancery court failed, when determining the amount of alimony to award, to account for $25,000 awarded to Alicia in the property distribution. We also reverse and remand on the issue of apportionment of the life insurance proceeds, and any impact the alimony determination may have upon the apportionment on remand.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Bill and Alicia married in February 1999. One child was born of the marriage, Izabella, in September 2003. She was diagnosed with mild autism. The couple separated in 2008. Bill works as a riverboat pilot; Alicia works part time as a licensed practical nurse. Bill also owned rental properties that the couple managed. In June 2009, the couple filed a joint complaint for an irreconcilable-differences divorce. Prior to trial, the parties reached an agreement regarding property distribution and child custody. Alicia would receive physical custody of Izabella, and she also would receive three of the jointly owned rental properties (one of which she resides in), unencumbered and valued at $57,300. Bill received ten parcels of real property with equity totaling $188,325. The couple also agreed that Alicia would receive $25,000 from Bill in the property settlement. The payment schedule for this figure was as follows: Bill would pay $10,000 within sixty days of the agreement’s execution, with the $15,000 balance paid in equal amortized monthly installments at six percent interest, for monthly payments of $456.33, beginning June 1, 2010, and continuing for thirty-six months.

¶ 3. In March 2010, trial commenced on the disputed issues: alimony, child support, apportionment between life insurance beneficiaries, and expenses associated with the maintenance of Alicia’s vehicle. On May 17, 2010, the court’s judgment was entered. The court accepted the parties’ consent to a divorce on the ground of irreconcilable differences. Bill’s adjusted gross income was $7,213.93 per month, while Alicia had $1,919.16 per month. Utilizing the statutory child-support guidelines, the chancellor required Bill to pay child support in the amount of $1,009.95 per month. Regarding alimony, the chancellor fully analyzed the Armstrong factors and determined Bill should pay Alicia $570 per month permanent periodic alimony. Additionally, the chancellor ordered Bill’s $350,000 life insurance policy to list Alicia and Izabella as named beneficiaries of $175,000 each. Finally, Bill was required to pay Alicia $3,345.41 to reimburse her for repairs to her vehicle that Bill had previously agreed to pay. The parties executed their custody and property settlement agreement on May 24, 2010. The chancery court entered a judgment of divorce on June 2, 2010, from which Bill timely appealed.

STANDARD OF REVIEW

¶ 4. The scope of review in domestic-relations matters is limited by the substantial-evidenee/manifest-error rule. Wheat v. Wheat, 37 So.3d 632, 636 (¶ 11) (Miss.2010). The appellate court “will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id. Questions of law are reviewed de novo. Id.

ANALYSIS OF THE ISSUES

I. ALIMONY

¶ 5. Bill contends the chancellor erred in awarding Alicia periodic alimony of $570 per month for a number of reasons, with the primary reason being the chancellor’s failure to consider the $25,000 lump-sum property distribution from Bill to Alicia to equalize the parties’ estates. We find merit to this argument.

¶ 6. In deciding whether to award alimony, the chancellor must analyze the Armstrong factors. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). However, before his analysis of the Armstrong factors, the chancellor, citing Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994), correctly noted alimony should be considered only if “an equitable division of marital property, considered with each party’s nonmarital assets, leaves a deficit for one party.” If, however, after the property division, each party’s assets and income will adequately provide for them, no further award is required. Id. Here, the chancellor determined that, in assessing the value of the separate estates of Bill and Alicia after equitable property distribution, a substantial deficiency existed that would allow the court to consider alimony.

¶ 7. The parties had already agreed upon the division of their marital assets at the time of trial, and the chancellor found Alicia had net assets of $162,486.38. For Alicia, this figure included $57,300 in unencumbered real property, cash assets totaling $95,186.38, and a vehicle with $10,000 in equity. However, this figure did not include the $25,000 lump-sum property distribution that Bill was to make to Alicia under the property agreement. Bill had net assets of $188,325 — the equity in ten parcels of property — which did not include any preexisting indebtedness existing on the property. The majority of Bill’s real-estate assets are income-producing rental properties. It was noted that the two pieces of real estate where Alicia does not reside cannot be occupied by tenants without considerable expense, thereby creating the possibility that Bill’s estate would grow in value much quicker than Alicia’s estate.

¶ 8. We agree with Bill that the chancellor’s omission of the $25,000 lump-sum property distribution in Alicia’s estate was error because the chancellor based the necessity of an Armstrong analysis on an inaccurate calculation of the parties’ estates. However, we do not go so far as to say that the award of alimony itself was error; that issue and the respective amount which might be awarded will be left to the chancellor’s discretion once he factors in the $25,000 payment to Alicia’s estate.

¶ 9. Using the chancellor’s figures, Alicia’s estate was valued at $25,838.62 less than Bill’s ($162,486.38 versus $188,325). Adding the $25,000 payment to Alicia’s estate would even out the disparity between the values of the parties’ property distribution, giving Alicia’s estate a value of $187,486.38. Less the $25,000, Bill’s estate would be valued at $163,325. It is well established that while they are distinct concepts, property division and alimony should be considered together by the chancellor. Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994). We note that the chancellor did not take into account that Bill would be making the $25,000 payment over the next three years. Therefore, we find it necessary to reverse and remand on the issue of whether an Armstrong analysis and alimony is warranted after Bill’s $25,000 payment to Alicia is considered.

¶ 10. In response to Bill’s argument, Alicia states that future payments to satisfy property settlement agreements are not subject to equitable distribution and should not be considered by the chancellor in determining the marital estates. However, Alicia cites no authority for her proposition. Additionally, this is not the situation at bar. The issue over the $25,000 payment is not part of the determination of equitable distribution, but of alimony. Nor is the $25,000 part of the marital estate, but it became a part of Aicia’s individual estate after the marital estate was divided. She also argues that the $25,000 payment is “essentially” a “lump sum alimony payment” which, at the time of the court’s ruling, would not have been transferred, due, or owing. We find no support in the record for the contention that the $25,000 was for “alimony.” On cross-examination, while discussing what property she received, Alicia agreed with Bill’s counsel that as “part of the deal” Bill “pitched in another $25,000 on top of’ the other assets she received. The record does not relate this payment to alimony.

¶ 11. Further, the court was certainly aware that the $25,000 was part of the property settlement at the time of its ruling on May 17, 2010, even if the agreement itself had not yet been executed, for it was mentioned by Bill’s counsel at the beginning of the trial on March 26, 2010. Even though the first installment of $10,000 was not yet “due or owing” at that time (but due sixty days from May 26, 2010 — the agreement’s execution), that does not mean it or the other $15,000 in installments over thirty-six months could not be taken into consideration to determine the amount of alimony.

¶ 12. For the above reasons, we accordingly reverse and remand on this issue.

II. LIFE INSURANCE

¶ 13. Bill had a life insurance policy for $350,000 on his life. At trial, the parties disputed whether the entire amount should be for the benefit of Izabel-la or a portion reserved for Alicia. The chancellor found that the proceeds should be apportioned equally with Izabella and Alicia both receiving $175,000. Bill asserts the chancellor erred in apportioning $175,000 to Alicia.

¶ 14. Bill argues that the amount is excessive, citing two cases which this Court remanded for a reexamination of the amount awarded to life insurance beneficiaries when that award was tied to an alimony obligation which was also remanded: Beezley v. Beezley, 917 So.2d 803, 808 (¶ 17) (Miss.Ct.App.2005) and Johnson v. Pogue, 716 So.2d 1123, 1134 (¶41) (Miss.Ct.App.1998). However, in both of these cases, the life insurance policy was required in order to protect the ex-wife should the ex-husband fail to make alimony payments and later die. Id. Bill claims that is the same situation here: the $175,000 award of life insurance coverage was used to secure the $570 per month grant of alimony for Aicia.

¶ 15. The chancellor made the following statement in his opinion about the life insurance beneficiaries: “The Court is of the opinion that with the award of alimony and support, that both the wife and minor child should be the beneficiaries of the $350,000 life insurance available on the life of the Defendant.” While the chancellor did not require Bill to obtain a life insurance policy, as was the case in Beezley and Johnson, the chancellor ordered a division of an already existing policy, with that decision apparently connected with the award of alimony and/or child support, both of which are proper. “Life insurance serves a variety of purposes in divorce proceedings,” such as to replace alimony, child support, or as part of the property-division. Deborah H. Bell, Mississippi Family Law § 10.07(2) (2005). However, as Professor Bell warns, if life insurance is associated with child support, it should be designated as such to avoid subsequent litigation. Id. Since the chancellor did not specifically explain the reason for his ruling, and the award of alimony may be changed on remand, we find it proper for the chancellor to reconsider the apportionment of life insurance proceeds on remand as well. Therefore, we reverse and remand for the chancellor to reexamine the percentage awarded to the policy’s beneficiaries, after the chancellor reexamines the alimony issue.

III. CHILD SUPPORT

¶ 16. The chancellor found Bill’s adjusted gross income to be $7,213.93 per month. The court found that no criteria under Mississippi Code Annotated section 43-19-103 (Rev.2009) applied to justify a variance to the statutory guidelines of child support under section 43-19-101 (Rev.2009) of the Mississippi Code Annotated. Therefore, the court applied the statutory amount of fourteen percent to Bill’s adjusted gross income, resulting in $1,009.05 per month child support. In compliance with Mississippi Code Annotated section 43-19-101(4), the chancellor also found that since Bill’s annual income exceeded $50,000 per year, the application of the percentages listed in the statutory guideline was reasonable, in light of the child’s standard of living before the divorce and because of any unforeseen expenses from her disability.

¶ 17. The chancellor rejected Bill’s argument that the monthly expenses incurred from his rental investments should be deducted from his gross income, which he receives from his primary employer, Florida Marine Transporters. Bill raises this argument again on appeal.

¶ 18. On his Rule 8.05 financial statement dated March 2010, Bill reported his monthly net income for adjusted gross income purposes to be $4,290.49. See UCCR 8.05. This figure includes $9,641.07 in gross income from his employer. He improperly deducted “a loss” from rental income in 2009 of $2,460.03. His itemized monthly deductions totaled $2,890.55; however, this figure improperly included $150, which is one-half the cost of health insurance for his child, and is not a mandatory deductible expense under section 43-19 — 101(l)(b). See also Wells v. Wells, 800 So.2d 1239, 1247 (¶ 21) (Miss.Ct.App.2001) (Court-ordered medical and dental insurance is not a mandatory deduction under section 43-19-101(1).).

¶ 19. The inclusion of income and deductions for calculating adjusted gross income for child support is primarily mandated by statute. According to section 43-19-101, in calculating gross income, the chancellor must consider “gross income from all potential sources,” including wages and salary income, income from self-employment, and income from investments. As the chancellor explained, section 48 — 19—101(3)(b) lists several deductions that may be subtracted from the gross income figure, such as federal, state, and local taxes, social-security contributions, and mandatory retirement and disability contributions, but it does not list business expenses. Additionally, the Mississippi Supreme Court has allowed the deduction of legitimate business expenses in the case of a self-employed payor-spouse. See Nix v. Nix, 790 So.2d 198, 199-200 (¶¶ 3, 5) (Miss.2001) (The chancellor considered the payor-parent’s legitimate business expenditures for reasons of equity, in order to determine available income for child support; he was a self-employed plumber.). However, the chancellor found no caselaw, nor do we, that allows for a deduction of expenses related to investments or supplemental business enterprises, which would be taken from the gross income of the payor-spouse. Therefore, in arriving at the adjusted gross income figure, the chancellor must include income from many sources, but not all expenses. The allowable deductions for this figure are statutory, and they differ from the allowable deductions for income tax purposes, upon which Bill appears to base his calculations.

¶ 20. Bill is not self-employed; his position as a riverboat pilot provides a set salary. Alternatively, his rental properties, which he began purchasing in 1995, are a secondary source of income that he voluntarily continued, even though they were operating at a loss at the time of trial. If Bill opts to continue this rental venture at a loss, it should not be done to the detriment of his child. The chancellor did not abuse his discretion in failing to subtract Bill’s losses on his rental properties from his regular salary earnings to determine his adjusted gross income for child support.

¶ 21. THE JUDGMENT OF THE CHANCERY COURT OF MONTGOMERY COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY TO THE APPELLANT AND THE AP-PELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, MAXWELL AND RUSSELL, JJ„ CONCUR. CARLTON AND FAIR, JJ., NOT PARTICIPATING.

      . On appeal, Bill does not contest this ruling.

      . The chancellor found Bill's gross monthly income to be $9,641.07, taking mandatory deductions for state and federal income taxes, social security, and Medicare of $2,740.55 (properly excluding one-half of the child's health insurance expense which Bill had listed as a deduction), for an adjusted gross income of $6,900.52. Additionally, the chancellor noted Bill received a total of $3,761 for an income-tax refund for the taxable year 2008, giving him an additional $313.41 per month in income, for an adjusted gross income total of $7,213.93. The chancellor did not include as income the $1,200 per month that Bill reported as monthly rental income he received in 2009, but Alicia does not contest the chancellor’s adjusted gross income figure.

      . Bill reported monthly rental income of $1,200 and expenses of $3,660.03, which included taxes and the mortgages; therefore, he concluded he had a monthly loss of $2,460.03.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Julia WHITE, et ah, Appellants v. Bessie L. WHITE, Widow of Sonny White, et al., Appellees.
    No. 2010-CA-02108-COA.
    Court of Appeals of Mississippi.
    Feb. 21, 2012.

      David Earl Rozier Jr., Jackson, Jenessa Jo Carter Hicks, Oxford, attorneys for appellants.
    Preston Ray Garrett, attorney for appel-lees.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Bee and Birdie White owned property in Calhoun County, Mississippi (the property). Upon their deaths, the property was divided into seven equal parts among their seven surviving children. Six of the children conveyed their interests in the property to their brother while reserving unto themselves a life estate. After their brother’s death, the six siblings contested their conveyance of the property in the Calhoun County Chancery Court. However, before a trial took place, the six siblings entered into a stipulation that resulted in an agreed order admitting the conveyance was proper. Three years later they contested the agreed order, claiming it was a mistake. The chancery court denied their request for relief by order, which is the subject of the instant appeal. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Upon the deaths of their parents, Hazel Cade, Lig White, Willie May Dowdy, Bessie Turner, Julia White, Shirley Moore (the siblings), and Sonny White inherited equal shares of the property located in Calhoun County. In 2000, the siblings conveyed their interests in the property through a warranty deed to their brother, Sonny, while reserving life estates for themselves.

¶ 3. Sonny died six years later, and the property passed to his wife, Bessie, and his children. Shortly after Sonny’s death, the siblings retained counsel in June 2006 and filed a petition in the chancery court requesting relief from their conveyance of the property to Sonny. According to the siblings, their intentions in executing the warranty deed was to surrender Sonny’s interest in the property to them and reserve him a life estate. They claimed the deed was erroneously drafted and, therefore, unintentionally executed by them.

¶ 4. The case was set for trial with all parties represented by counsel. However, in 2007, counsel for all parties entered into a stipulation which resulted in an agreed order establishing that the warranty deed in question properly conveyed the property to Sonny while reserving life estates for the siblings with each sibling retaining the right to occupy the property during then-lives with remainder interests vested in Sonny’s heirs. The chancery court entered the agreed order in April 2007.

¶ 5. The siblings received a copy of the agreed order in the mail in April 2007. Upon receipt, the siblings wrote, “REJECTED BY ALL 6 INHERITANCES [sic] OF BEE WHITE,” and returned it to their attorney, asking him why they were no longer scheduled to appear in court. The attorney again explained the contents of the agreed order and its effects. According to one sibling, their understanding of the order was that “[the property] was ours until we died and then it would go to [Sonny’s wife and children.]” On May 6, 2007, one of the siblings wrote the attorney on behalf of all siblings stating they no longer wished to employ his services and were paying his final bill in full.

¶ 6. In the summer of 2009, the siblings were contacted by an individual interested in purchasing the property. The siblings agreed to sell the property without including Sonny’s heirs in the negotiations or the profits. However, the purchaser soon discovered the property was not the siblings’ to sell, and sale negotiations were terminated.

¶7. A year later, in August 2010, the siblings filed a motion in the chancery court seeking to have the agreed order set aside. The siblings argued that then-counsel was not authorized to sign the agreed order on their behalf and that they did not agree with the terms of the order. After a hearing on the merits, the chancery court denied the siblings’ request for relief from the agreed order. The siblings now appeal claiming the chancery court erred in refusing to negate the agreed order; the chancery court erred in finding the siblings’ attorney had apparent and actual authority to enter them into the agreed order; and the chancery court erred in its determination that equity and justice did not justify negation of the agreed order. We affirm the chancery court’s judgment.

DISCUSSION

¶ 8. We recognize our limitations in reviewing a chancellor’s decision. Howard v. Gunnell, 63 So.3d 589, 597 (¶ 16) (Miss.Ct.App.2011). “We acknowledge that this Court will not disturb a decision of a chancellor absent a finding that he or she is manifestly wrong, clearly erroneous, or the chancellor applied an erroneous legal standard.” Id. (citation and quotation omitted). Nonetheless, we review questions of law de novo. Rousseau v. Rousseau, 910 So.2d 1214, 1217 (118) (Miss.Ct.App.2005) (citations omitted).

¶ 9. Here, the siblings argue Mississippi Rule of Civil Procedure 60(b) warrants the setting aside of the agreed order. Rule 60(b) provides for relief of a party from a final judgment under the following conditions:

(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.

Rule 60(b) further states a motion to set aside a final judgment under one of the applicable conditions must be made “within a reasonable time and for reasons (1), (2)[,j and (3) not more than six months after the judgment, order, or proceeding was entered or taken.” Id.

¶ 10. We have recognized that Rule 60(b) “provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances, and neither ignorance nor carelessness on the part of an attorney will provide grounds for relief.” Jenkins v. Jenkins, 757 So.2d 339, 343 (¶ 7) (Miss.Ct. App.2000) (quoting Stringfellow v. String-fellow, 451 So.2d 219, 220 (Miss.1984)). Furthermore, “[a] party is not entitled to relief merely because he is unhappy with the judgment, but he must make some showing that he was justified in failing to avoid mistake or inadvertence; gross negligence, ignorance of the rules, or ignorance of the law is not enough.” Id.

¶ 11. The siblings argue subsections four and six of Rule 60(b) apply to their case because they allegedly never authorized their counsel to enter into the agreed order on their behalf. Furthermore, while they acknowledge they were well aware that the order had been entered in April 2007, they nonetheless failed to attempt reversal of the order until the instant action was filed more than three years later. The chancery court held:

[Tjhis court finds that the attorney had the apparent and actual authority to act on behalf of his client. The client, in this case[, the siblings, are] bound by the actions of [their] attorney. Further, [the siblings] had actual notice of the accident or mistake and did nothing to correct such an accident or mistake until now. Additionally, the parties are entitled to rely on entry of decrees of this court and public record.... In the case before the court today, [the siblings] waited three years to file this motion. The court finds that the time for appeal has expired. [The siblings] had ample opportunity to file a motion to set aside the Agreed Order and [have] failed to do so in a timely manner.

¶ 12. The siblings rely on several cases to support their theory that Rule 60(b) permits negation of the agreed order. In particular, the siblings cite the case of M.A.S. v. Mississippi Department of Human Services., 842 So.2d 527 (Miss.2003), for the proposition that Rule 60(b)’s time limitation is a fluid limitation depending upon the facts of each case. In so doing, the siblings note the Mississippi Supreme Court’s allowance of a nine-year time lapse in a reversal of a final judgment under Rule 60(b). However, the siblings failed to address the factual differences between M.A.S. and the instant case.

¶ 13. M.A.S. involved the entry of a previously-stipulated paternity order, which had been previously agreed to, that was signed by a mother and her former boyfriend, both of whom were minors. Id. at 528 (¶ 1). The former boyfriend was also unrepresented at the time he signed the stipulated order acknowledging him as the child’s father. Id. at 528 (¶ 3). Nine years later, the former boyfriend presented evidence that the Mississippi Department of Human Services had repeatedly refused to provide a paternity test. Id. at 530 (¶ 13). The former boyfriend provided DNA evidence from an unrelated matter proving he was not the child’s father. Id. at 528 (¶ 5). The former boyfriend requested the chancery court negate the stipulated paternity order so that he could stop paying child support. Id. at 528 (¶ 1). The chancery court refused, and the former boyfriend appealed. Id. On appeal, the supreme court allowed for reversal of the stipulated paternity order under Rule 60(b) despite the nine year time lapse. Id. at 528 (¶ 2). In doing so, the supreme court recognized the extreme circumstances of the case in that the former boyfriend was both a minor and unrepresented at the time the stipulated paternity order was signed. Id. at 581 (¶ 19). The supreme court also noted the irrefutable nature of the newly discovered DNA evidence as well as the prejudicial nature of the former boyfriend paying almost a decade of child support for a child that was not his. Id.

¶ 14. The facts of the instant case are markedly different. The parties were of age and represented by counsel in all proceedings. Furthermore, there is no irrefutable evidence that the siblings expressly refused to agree to the order in question. Indeed, there was the appearance of authority between the siblings and their attorney. The record indicates the siblings discussed the matter with their counsel and then paid him for his services. It was not until three years after the agreed order was entered and the siblings discussed the order with their attorney that they ultimately sought to have the order set aside.

¶ 15. The siblings also claim they would be prejudiced by the Court’s failure to reverse the agreed order based on the “spirit of justice” since the property in question “holds a unique and special place in the American psyche” and for the siblings. However, the siblings only fought to reclaim their interest in the property for which they claim to hold such sentimental value after they attempted to sell it without any notice or profit to Sonny’s heirs. Only after the attempted sale did they move to reverse the agreed order and claim an irreplaceable loss in the divesting of their family’s land to their brother’s heirs.

¶ 16. As such, we agree with the chancellor’s decision. We find that there are no exceptional circumstances warranting the negation of the agreed order under Rule 60(b). Accordingly, these issues are without merit.

¶ 17. THE JUDGMENT OF THE CALHOUN COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., IRVING AND GRIFFIS, P.JJ„ BARNES, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR. ROBERTS, J„ NOT PARTICIPATING.


text:
    EMJ CORPORATION, Appellant v. CONTRACT STEEL CONSTRUCTION, INC., Appellee.
    No. 2010-CA-01076-COA.
    Court of Appeals of Mississippi.
    Feb. 21, 2012.

      Paul P. Blake, Ridgeland, Ronald L. Harper, Charles R. Patrick, attorneys for appellant.
    Edward I. Curry, III, Robert A. Talley, attorneys for appellee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In January 2005, EMJ Corporation (EMJ) entered into an agreement with Contract Steel Construction Inc. (CSC) to serve as a subcontractor on a construction project in DeSoto County, Mississippi, on which EMJ was serving as the general contractor. Part of CSC’s duties included the installation of a roof ladder, otherwise known as a ships ladder. The ladder was manufactured by a third party, delivered to the job site, and installed by CSC in April 2005. An authorized EMJ representative inspected the ladder and approved installation. Approximately two weeks later, John Meeker was injured after falling down the ladder. Meeker filed suit in the DeSoto County Circuit Court naming EMJ and CSC, among others, as defendants. EMJ then filed a countersuit against CSC claiming CSC breached its contract by failing to install non-slip surfaces on the ladder’s steps, thereby causing Meeker’s fall. In December 2009, the circuit court granted CSC’s motion for summary judgment after concluding that CSC’s contract was ambiguous and that CSC did not have a duty to install the non-slip surfaces. EMJ appeals. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. EMJ was hired by J.C. Penny to serve as the general contractor on the construction of a new J.C. Penny store being built in Southaven, Mississippi. In 2005, EMJ contracted with CSC to provide “[a]ll steel erection work.” Included in the listed scope of CSC’s work was “Section 05500” which referenced metal fabrications and stated CSC would “[pjrovide non-slip surface on the top of each rung [of ladders,] either by coating the rung with aluminum oxide granules set in epoxy resin adhesive, or by using a type of manufactured run which is filled with aluminum oxide grout.”

¶ 3. Nonetheless, CSC was only charged with installing ladders that were made by third parties. The contract noted that “[m]aterials [would be] provided by others,” and it specified CSC was only to complete “[[Installation of roof ladder.” A separate subcontractor was charged with designing the ladder; yet another subcontractor, Harrell’s Metal Works (HMW), was hired to fabricate the ladder according to the ladder’s drawings. HMWs agreement with EMJ also listed “Section 05500” within the scope of work and charged HMW with completing the same task of applying non-slip surfaces to ladder rungs.

¶ 4. On or about April 15, 2005, CSC was informed that the ladder in question had been received at the job site. CSC sent Curits Walden, one of its employees, to install the ladder. Walden “tack welded,” or temporarily welded, the ladder to the roof and sought approval from EMJ’s project manager, Randy Hartline, for final installation. Walden informed Hartline that the ladder was too short for the space and that the rungs of the ladder were not perfectly parallel to the floor. The incorrect length of the ladder and the imperfections in the rungs were unimportant to Hartline and he asked Walden to complete installation. Walden complied and welded the ladder to the wall. He then waited while EMJ’s employees poured a concrete cap over the base of the floor underneath the ladder and finalized installation by welding the bottom of the ladder to the concrete, anchoring the ladder to the ground. The next day, Walden returned for EMJ’s final inspection. Hartline inspected the ladder, approved installation, and Walden left the job site.

¶ 5. Approximately two weeks later, another subcontractor was called by EMJ to inspect the roof. Meeker, an employee of the subcontractor, was sent to complete the inspection and used the ladder at issue to access the roof. After climbing up the ladder without incident, he began to descend the ladder and fell, causing serious bodily injury. Upon learning of Meeker’s fall, EMJ asked HMW to apply the nonslip surfaces on the ladder’s rungs. EMJ also notified HMW there would be deductions made from HMW’s final payment to compensate for the lack of non-slip surfaces. CSC was never asked to return to the job site and install non-slip surfaces on the ladder’s rungs, nor were CSC’s payments ever reduced or off-set. Trey Hall, an EMJ manager, later explained under oath that EMJ never hired CSC to apply the non-slip surfaces on ladder rungs and was never asked to do so either before or after Meeker’s fall.

¶ 6. After the fall, Meeker was diagnosed as paraplegic and filed suit in the circuit court in 2008 against EMJ, CSC, HMW, and several others claiming the lack of non-slip surfaces on the ladder’s rungs caused his injuries. Shortly thereafter, EMJ filed a countersuit against CSC asserting it was CSC’s contractual duty to install the non-slip surface, and CSC had breached its duty. HMW was voluntarily dismissed with prejudice, as were several other defendants. Another defendant was granted summary judgment, leaving EMJ and CSC as the only remaining defendants in the case.

¶ 7. CSC filed a motion for summary judgment in October 2009 as to EMJ’s counterclaim and Meeker’s claim. Therein, CSC claimed the existence of “Section 05500” in HMW’s contract rendered the contracts ambiguous, and testimony from EMJ’s project manager and CSC’s representative clarified that CSC was never expected to apply the non-slip surfaces on the ladder’s rungs. The circuit court entered an order in December 2009 granting CSC summary judgment under Mississippi Rule of Civil Procedure 54(b). In the order, the circuit court referenced the presence of “Section 05500” in the two contracts and noted that two subcontractors could not have both been charged with the same task; thus, CSC’s contract was ambiguous. Furthermore, testimony proved EMJ never expected CSC to apply the non-slip surfaces on the ladder’s rungs despite the language in CSC’s contract. As such, CSC was dismissed from Meeker’s suit as well as EMJ’s countersuit.

¶ 8. EMJ appeals claiming that material facts remain regarding CSC’s liability to Meeker and that the circuit court erred in its grant of summary judgment to CSC. We affirm the circuit court’s judgment.

DISCUSSION

¶ 9. The Mississippi Supreme Court has held that an appellate court “reviews a trial court’s grant or denial of a motion for summary judgment or a motion to dismiss under a de novo standard.” Copiah County v. Oliver, 51 So.3d 205, 207 (¶ 7) (Miss.2011) (citation and italics omitted). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories!,] and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995) (quoting M.R.C.P. 56(c)). Although this Court must view the evidence in the light most favorable to the non-moving party, the party opposing the motion “may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). “[W]hen a party! ] opposing summary judgment on a claim or defense ... fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law.” Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss.1987). ¶ 10. EMJ first claims the circuit court erred by granting summary judgment in favor of CSC with regard to Meeker’s claims. However, EMJ does not have standing to appeal the circuit court’s dismissal of CSC from Meeker’s case. The law is clear that one may not appeal a judgment to which he or she is not a party unless he or she retains a personal stake in the outcome of the appeal and is thereby aggrieved by the underlying judgment. See, e.g., Myatt v. Peco Foods, 22 So.3d 384, 337 (¶ 5) (Miss.Ct.App.2009) (citing Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 333-34, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980); Klamath Strategic Inv. Fund ex rel. St. Croix Ventures v. United States, 568 F.3d 537, 546 (5th Cir.2009)).

¶ 11. Here, Meeker adopted by reference EMJ’s response to CSC’s motion for summary judgment and agreed with EMJ’s argument that CSC was negligent in permanently installing a ladder not conforming to CSC’s contract. However, Meeker reiterated his position that despite his claim against CSC, EMJ was independently negligent in causing his injuries. As such, the absence of CSC in Meeker’s case would not eliminate EMJ’s liability, and EMJ has put forth no evidence that it would directly suffer from CSC’s dismissal. EMJ has only argued that it would be indirectly prejudiced as pertaining to its defense of Meeker’s claim.

¶ 12. Assuming arguendo that EMJ has a direct interest in CSC’s dismissal from Meeker’s case, EMJ’s interest would necessarily be predicated on CSC being found liable to some extent for the injuries at hand. However, the circuit court’s determination that CSC had no duty to apply the non-slip surfaces to the ladder’s rungs is dispositive to both Meeker’s and EMJ’s cases against CSC.

¶ 13. The circuit court concluded CSC’s work on the ladder was finalized and approved by EMJ and possibly also by J.C. Penny. However, the record is clear that final installation of the ladder was, at the very least, accepted by EMJ’s manager, Hartline. After viewing Walden’s temporary welding of the ladder, Hartline instructed CSC’s employee to finalize the installation of the ladder. Walden welded the ladder to the wall, then waited while EMJ’s employees poured a concrete cap under the base of the ladder. Walden then finalized the welding process by anchoring the ladder to the concrete base. He was never contacted by anyone at EMJ again regarding work on the ladder. It was not until two weeks after the concrete cap was poured and CSC’s employees finished their installation that Meeker was injured, and someone at EMJ contacted someone at HMW to apply the non-slip surfaces to the ladder’s rungs.

¶ 14. We find it irrelevant that CSC’s and HMFs contracts contained “Section 05500” charging them both with the duty of applying the non-slip surfaces. While this evidence may deem the contracts ambiguous, it is extrinsic and unnecessary information considering EMJ’s clear acceptance of CSC’s work on the ladder. It has long been held:

The general rule is well established that an independent contractor is not liable for injuries occurring to a third person after the contractor has completed the work and turned it over to the owner or employer and it has been accepted by him, even though the injury results from the contractor’s failure properly to carry out his contract. When the work is finished by the contractor and accepted by the employer, the latter is substituted as the party responsible for existing defects, and the same rule is applied to subcontractors, so as to relieve them from liability to the original employer where their work has been finished and accepted by the original contractor.

Fischbach & Moore, Inc. v. Foxworth, 246 Miss. 814, 819, 152 So.2d 714, 716 (1963) (emphasis added) (quotation omitted).

¶ 15. The record shows Hartline approved final installation of the ladder. Walden testified that after showing Hartline the temporary weld of the ladder, “[Hartline] said weld it up, weld the handrails on it, looks good[,] and that’s all.” Walden further stated: “I said do y’all want to weld it up? [Hartline] said weld it up, get it welded up, put the handrails on it, get it secure; and so we welded it up, put the handrails on it and that was the last time I met with him.” Furthermore, two weeks passed from the time all welding was completed on the ladder until Meeker was injured from falling on the ladder, with no work performed on the ladder anytime after the final installation. It was only after Meeker’s fall that someone at EMJ ordered the non-slip surfaces be applied on the ladder and contacted someone at HMW to perform the work, not a CSC employee. No one at EMJ ever contacted anyone at CSC regarding work on the ladder after Walden left the job site following his final installation two weeks prior to Meeker’s accident.

¶ 16. The evidence supports the circuit court’s conclusion that no material fact exists to support either Meeker’s or EMJ’s claim that CSC was liable for the ladder’s lack of non-slip surfaces. EMJ accepted CSC’s final installation of the ladder which eliminated any possible liability on CSC’s part. These issues are without merit.

¶ 17. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR.


author: ROBERTS, J.,

text:
    Terry O. JOHNSON Jr. a/k/a Terry O. Johnson, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01237-COA.
    Court of Appeals of Mississippi.
    Feb. 21, 2012.

      Johnnie E. Walls Jr., Cleveland, Leslie S. Lee, Jackson, Benjamin Allen Súber, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, C.J., ROBERTS and RUSSELL, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. This appeal stems from Terry O. Johnson Jr. a/k/a Terry O Johnson’s convictions on May 28, 2010, in the Washington County Circuit Court for armed robbery, armed carjacking, kidnapping, burglary of a dwelling, and a sentence enhancement for the use of a firearm during the commission of armed robbery, armed carjacking, and kidnapping. On June 3, 2010, Johnson was sentenced to serve a total of fifteen years followed by five years of post-release supervision (PRS), all in the custody of the Mississippi Department of Corrections (MDOC). Following his trial and sentencing hearing, Johnson filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a motion for a new trial. The circuit court entered an order on June 24, 2010, denying Johnson’s motion. Johnson now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 16, 2009, Johnson and Xe-zavion Taylor attended a barbecue at the home of Johnson’s brother-in-law. That night, Johnson and Taylor left the barbecue and proceeded to Kendall Franklin’s home to ask for a ride home. Franklin, a former boyfriend of Johnson’s mother, reluctantly agreed to give them a ride to Johnson’s home at the January Apartments. At trial, Franklin testified to the following series of events. After agreeing to give the two a ride, Franklin got into the driver’s seat of his car while Johnson rode in the passenger seat and Taylor rode in the backseat. En route to the apartment, Taylor pulled a gun, held it to the back of Franklin’s head, and demanded money from him. Franklin informed Taylor that he had no money on him. With the gun still pulled, Taylor instructed Franklin to drive to the levee. Once at the levee, Taylor told Franklin to get into the passenger seat so he could drive. Johnson got in the backseat. Taylor began driving Franklin’s car toward Carver Circle. Before reaching Carver Circle, Taylor pulled the car over and again demanded money from Franklin; however, when Franklin replied he had none, Taylor struck Franklin multiple times on his head with the back of the gun. He then told Franklin to open the passenger door where he shot the gun out of the door two or three times. Taylor then began driving toward Carver Circle again, but they stopped at some apartments near Wed-dington. Taylor handed the gun to Johnson and got out of the car to talk to some people who had pulled up in a car behind them. Now in possession of the gun, Johnson ordered Franklin to keep looking forward. When Taylor returned to the car, he asked Johnson if he knew anyone who could help; Johnson handed the gun back to Taylor and responded that he did know someone who could help. Taylor began driving toward the January Apartments. At the January Apartments, Johnson got out of the car and returned with an unidentified male. Once Johnson and the unidentified male got into Franklin’s ear, Taylor drove back to Franklin’s house. Upon arriving at Franklin’s house, Johnson and the unidentified male got out of the car, entered Franklin’s room, and carried items from Franklin’s room to the trunk of the car; Taylor was still in possession of the gun and remained in the car with Franklin. Johnson and the unidentified male got back into the car, and they drove back toward the apartments near Weddington. There, Taylor got out of the car to talk to other people in a different car while Johnson and the unidentified male moved the stolen items from Franklin’s car’s trunk to the other car’s trunk. Johnson and the unidentified male got into the other car, and Taylor and Franklin left in Franklin’s car heading toward the levee. At the levee, Taylor forced Franklin to exit the car and climb into the car’s trunk. Taylor drove around with Franklin in the trunk for approximately ten to fifteen minutes before parking. Franklin heard a second car pull up, and Taylor got in that car and left. Using some tools in the trunk, Franklin was able to free himself and walk home where he called the police to report the crime. Franklin testified that a wallet with $51, speakers, clothes, shoes, a car CD player, woofers, an amplifier, and his cell phone were stolen from him. Relying on Franklin’s identification of Johnson as an involved party, the police arrested Johnson almost a month later. Johnson provided the police with Taylor’s name. The police subsequently arrested Taylor. The police provided Franklin with a photographic lineup from which he selected Taylor as the man who was also involved that night.

¶ 3. However, at trial, Johnson provided a different version of the events of that night. Johnson testified he had made no plans with Taylor to rob Franklin and that he did not know if Taylor had a gun before he pulled it on Franklin. He also disputed Franklin’s testimony by claiming he was originally in the backseat and not the passenger seat. Johnson further testified that he was shocked and scared when Taylor pulled out the gun. He claimed that when Taylor pulled the gun, he laid down in the backseat and pretended to be asleep. He claimed he was fearful of what Taylor was going to do to them. Johnson’s testimony again differs from Franklin’s testimony in that Johnson claims that after Taylor hit Franklin with the gun, Taylor made Johnson get out of the car so a few other guys could get in instead. Johnson testified that he stood there waiting because he was unfamiliar with the area and was scared he would get lost; however, just a short while later, Taylor and Franklin returned to pick him up. From there, Taylor drove Johnson home and threatened to kill him if he told anyone about what had happened.

¶ 4. Based on the facts presented to the police, Johnson was indicted on November 23, 2009, on the following counts: Count I, armed robbery; Count II, armed carjacking; Count III, kidnapping; and Count IV, house burglary. He was also indicted under Mississippi Code Annotated section 97-37-37(1) (Supp. 2011), which provides an enhanced sentence for the use of a firearm during the commission of a felony. Johnson’s trial began on May 27, 2010, and ended on May 28, 2010, with the jury unanimously convicting Johnson on all counts and the firearm enhancement. At Johnson’s sentencing hearing on June 3, 2010, the circuit judge ordered Johnson to serve ten years on each Counts I, II, and III. He then ordered Johnson to serve fifteen years with ten years to serve and five years of post-release supervision (PRS) on Count IV. Johnson was also sentenced to an additional five years for his conviction in the firearm enhancement in Count V. All these sentences were to be served in the custody of the MDOC. The circuit judge ordered Johnson’s sentences in Counts I, II, III, and IV to run concurrently with one another; his sentence on the firearm enhancement would run consecutively to his other sentences. In sum, Johnson would serve a total of fifteen years in the custody of the MDOC with an additional five years of PRS.

¶ 5. Johnson filed a motion for a JNOV or, in the alternative, a new trial; the circuit judge denied this motion. On appeal, Johnson raises the following issues:

I. Whether there was sufficient evidence to support Johnson’s convictions on each count.
II. Whether the circuit court erred in denying a jury instruction on Johnson’s theory of the case.

STANDARD OF REVIEW

¶ 6. In Johnson’s first issue, he appeals the circuit judge’s denial of his JNOV motion. Appealing a denial of a motion for a JNOV raises a challenge to the legal sufficiency of the evidence. Bush v. State, 895 So.2d 836, 844 (¶ 16) (Miss.2005). The Mississippi Supreme Court has clearly stated that our standard of review on this issue is to determine “whether the evidence shows ‘beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’” Id. (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). However, “[i]f, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, that the essential elements of the crime existed, this Court will affirm the conviction.” McKay v. State, 59 So.3d 644, 646 (¶ 6) (Miss.Ct.App.2011) (citing Bush, 895 So.2d at 844 (¶ 16)).

¶ 7. Johnson’s second issue involves the circuit judge’s decision to deny a jury instruction on duress, a purported theory of defense in Johnson’s case. In Cox v. State, 66 So.3d 182, 185 (¶ 12) (Miss.Ct. App.2010), this Court stated our standard of review as follows:

The standard for review in challenging a jury instruction is well settled: “In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole[; wjhen so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Moreover, “[a] defendant is entitled to have jury instructions given which present his theory of the case[;] however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.”

(Internal citations omitted).

ANALYSIS

I. Sufficiency of the Evidence

¶ 8. Johnson first challenges whether there was sufficient evidence presented at trial for a jury to convict him of all the counts. In this case, it is important to note that the jury was given an instruction on aiding and abetting. Mississippi case law provides: “Any person who is present at the commission of a criminal offense and aids, counsels, or encourages another in the commission of that offense is an ‘aider and abettor’ and is equally guilty with the principal offender.” Glenn v. State, 996 So.2d 148, 153 (¶ 18) (Miss.Ct.App.2008) (internal citations omitted). The jury instruction was worded similarly, stating:

If another person in acting under the direction of the Defendant (Johnson) or if the Defendant (Johnson) joins another person and performs acts with the intent to commit a crime, then the law holds the Defendant (Johnson) responsible for the acts and conduct of such other persons just as though the Defendant (Johnson) had committed the acts or engaged in such conduct.
Before any Defendant (Johnson) may be held criminally responsible for the acts of others, it is necessary that the accused (Johnson) deliberately associate himself in some way with the crime and participate in it with the intent to bring about the crime.

Based on this instruction, the jury did not have to find that Johnson committed the acts by himself, but that he joined with Taylor and performed acts with the intent to commit the crime.

A. Armed Robbery

¶ 9. Johnson was convicted of violating the armed-robbery statute found in Mississippi Code Annotated section 97-3-79 (Supp. 2011). The statute provides: “Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapons shall be guilty of robbery....” Id. Johnson argues the State failed to prove Johnson actually took any of Franklin’s property as a result of violence or putting Franklin in fear of injury and that Johnson never put Franklin in fear or used any force. Further, Johnson argues that Franklin’s testimony never implicated Johnson in the crime because Johnson did not pull the gun or demand money. Johnson testified that he never participated or assisted Taylor in robbing Franklin, and he was shocked and pretended to be asleep when Taylor pulled the gun and demanded money from Franklin.

¶ 10. Johnson testified as to his version of the events that transpired that night, but so did the victim, Franklin. Franklin testified that Johnson did, in fact, hold Franklin at gunpoint and demand Franklin keep looking forward. Additionally, the reason no property was taken was because Franklin had none to give them. It is well established that the crime of armed robbery is complete at the attempt to take the property and not at the actual taking of property. Croft v. State, 992 So.2d 1151, 1159 (¶ 33) (Miss.2008); Putnam v. State, 877 So.2d 468, 471 (¶ 10) (Miss.Ct.App.2003).

¶ 11. Although Johnson and Franklin provided two different versions of the event, it is within the province of the jury to determine the credibility of the witnesses and give weight to conflicting testimony. Russell v. State, 834 So.2d 714, 718 (¶ 18) (citing Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979)). In this case, the jury weighed the evidence and testimony presented by both sides, and it ultimately convicted Johnson of armed robbery because of his participation. Based on our standard of review, we find, viewing the evidence in the light most favorable to the State, that the jury could have found Johnson guilty of armed robbery beyond a reasonable doubt.

¶ 12. Therefore, this issue is without merit.

B. Armed Carjacking

¶ 13. Johnson next argues that there was insufficient evidence presented to find him guilty of armed carjacking. Mississippi’s armed-carjacking statute is found in Mississippi Code Annotated section 97-3-117(2) (Supp. 2011) and provides that: “Whoever commits the offense of carjacking while armed with or having readily available any pistol or other firearm ... shall be guilty of armed carjacking.”

¶ 14. It is clear that based on Franklin’s testimony, the jury believed Johnson and Taylor had acted in concert to carry out the events that occurred that night. The State proved Taylor took possession of Franklin’s car through the use of a gun. As an aider and abettor, Johnson was guilty of the crime of armed carjacking even though he did not drive Franklin’s car or request to be taken anywhere.

¶ 15. Keeping in mind our standard of review, we find this issue is without merit as it was reasonable, based on the evidence presented, for a jury to convict Johnson of armed carjacking.

C. Kidnapping

¶ 16. Johnson was also convicted of kidnapping in violation of Mississippi Code Annotated section 97-3-53 (Supp. 2011) which states:

Any person who, without lawful authority and with or without intent to secretly confine, shall forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be confined or imprisoned against his or her will, ... shall be imprisoned for life in the custody of the Department of Corrections if the punishment is so fixed by the jury in its verdict. If the jury fails to agree on fixing the penalty at imprisonment for life, the court shall fix the penalty at not less than one (1) year nor more than thirty (30) years in the custody of the Department of Corrections.

¶ 17. Johnson’s argument is he did not participate in any of the crimes that occurred that night and had no knowledge of Taylor’s intent to rob Franklin or that Taylor was in possession of a gun. He further asserts he never even held the gun that night. As was discussed above, Franklin testified to a different version of events; specifically, Franklin testified that at one point during the night, Johnson did have possession of the gun. The State asked Franklin several questions regarding Johnson’s possession of the gun. The following exchange between the State and Franklin occurred at trial:

State: And when [Taylor] left the car and went into these apartments where you couldn’t see him, is Terry [Johnson] still in the car with you with that gun?
Franklin: Yes, sir — yes ma’am.
State: Were you free to leave at that point?
Franklin: Oh, no, ma’am.

Based on the evidence presented, primarily through the testimony of Franklin, the jury determined Johnson was guilty of kidnapping Franklin. Viewing the evidence in a light most favorable to the State, we agree and find the State proved all the necessary elements of kidnapping, and a reasonable jury could have found Johnson guilty of kidnapping Franklin. There was evidence presented that while Johnson held the gun Franklin was not free to leave the car.

¶ 18. Therefore, this issue is without merit.

D. Burglary of a Dwelling

¶ 19. Next, Johnson argues that there was insufficient evidence to convict him of burglary of a dwelling found in Mississippi Code Annotated section 97-17-28 (Supp.2011). The elements necessary to prove burglary of a dwelling are “(1) the unlawful breaking and entering [of a dwelling]; and (2) the intent to commit some crime when entry is attained.” Kirkwood v. State, 52 So.3d 1184, 1187 (¶ 12) (Miss.2011) (quoting Parker v. State, 962 So.2d 25, 27 (¶ 9) (Miss.2007)). Johnson submits he had no knowledge of any items taken from Franklin’s home and that he never returned to Franklin’s home after Franklin agreed to give them a ride home; therefore, the State failed to prove the first element. In regard to the second element, Johnson argues no evidence was presented that he actually went back to Franklin’s house. Again, Johnson only relies on his version of the events. Franklin testified that Johnson and an unidentified male were the persons who entered his home, carried out the items, and placed the items in the car’s trunk. Johnson entered Franklin’s home with the intent to commit larceny by taking Franklin’s property.

¶ 20. The jury weighed the conflicting testimony and determined that Johnson was guilty of burglary of a dwelling. Based on our standard of review, we find that the evidence was sufficient to prove each element of the crime of house burglary and that any rational juror could have found Johnson guilty of house burglary beyond a reasonable doubt.

¶ 21. Therefore, this issue is without merit.

E. Firearm Enhancement

¶ 22. Lastly, Johnson was convicted of violating Mississippi Code Annotated section 97-87-87(1), which provides:

[A]ny person who uses or displays a firearm during the commission of any felony shall, in addition to the punishment provided for such felony, be sentenced to an additional term of imprisonment in the custody of the Department of Corrections of five (5) years, which sentence shall not be reduced or suspended.

Johnson argues the evidence presented indicated that Taylor was in possession of the gun and not Johnson. As we have previously stated, Franklin testified that Johnson was in possession of the gun for a period of time while Taylor was not in the car; therefore, Johnson used the gun while committing the felony of kidnapping. His actions fall squarely within the statute making him eligible for the additional sentence.

¶23. We find that based on the evidence presented, viewed in a light most favorable to the State, a rational juror could have found the State proved all the elements of this crime.

¶ 24. Therefore, this issue is without merit.

II. Jury Instructions

¶ 25. Johnson’s next argument on appeal is the circuit court erred in not granting his request for a jury instruction on the affirmative defense of duress. It is undisputed that it is a defendant’s right to have a jury instruction on his theory of the case presented even if the evidence is “weak, inconsistent, or of doubtful credibility.” Banyard v. State, 47 So.3d 676, 681 (¶ 12) (Miss.2010) (quoting Ellis v. State, 778 So.2d 114, 118 (¶15) (Miss.2000)). Further, a defendant is entitled to his instruction “even where the evidence ... arises only in the defendant’s own testimony.” Id. (quoting West v. State, 725 So.2d 872, 888 (¶ 66) (Miss.1998) (overruled on other grounds)).

¶ 26. Johnson submits that duress was a theory of his defense; therefore, he was entitled to the duress instruction he requested. The circuit judge rejected Johnson’s request for this jury instruction on the basis that “there is no foundation in the evidence to support Johnson’s theory that he participated in these crimes out of duress. He just said he didn’t do it.” At trial, Johnson maintained he did not participate in the crimes, but there was sufficient evidence for a jury to determine that if he did participate, he was under duress. Johnson states that when Taylor dropped him off at his apartment later that night, Taylor threatened to kill him if he told anyone about what had happened. Johnson also testified that he was shocked by what Taylor did and was frightened of him because he did not know what Taylor was capable of doing. Johnson argues that this evidence was sufficient to prove he was under duress during the commission of the crimes and entitled to a jury instruction on duress.

¶ 27. The supreme court has adopted a four-part test to prove duress; the parts are as follows:

1) the defendant was under an unlawful and present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury; (2) that he had not recklessly or negligently placed himself in the situation; (3) that he had no reasonable legal alternative to violating the law; (4) that a direct causal relationship may be reasonably anticipated between the criminal action and the avoidance of harm.

Banyard, 47 So.3d at 682 (¶ 13) (quoting Ruffin v. State, 992 So.2d 1165, 1177-78 (¶ 39) (Miss.2008)). In Ruffin, 992 So.2d at 1177 (¶¶ 37-38), the supreme court agreed with the circuit court’s finding that Micah Ruffin was not entitled to a duress instruction as to his kidnapping charge because there was no foundation in the evidence to support this theory of his defense. They found that Ruffin failed to satisfy part one of the test because he never presented evidence that he was threatened or had “a well-founded fear of death or serious bodily injury.” Id. at 1178 (¶ 40). The supreme court also found that Ruffin had reasonable alternatives to violating the law because “Ruffin could have attempted to renounce any further participation in the crime, and joined the other occupants at the back of the home. Alternatively, he could have tried to flee in the vehicle.” Id. at 1178 (¶ 41). Additionally, there was evidence presented that Ruffin possessed the gun after he was threatened which further negates his claim of duress. Id. at 1178 (¶ 43). It was based on this evidence the supreme court held “no rational juror could have concluded that Ruffin’s participation in the kidnapping was under a threat of imminent danger, especially considering that he actually possessed the gun on at least two occasions and had reasonable alternatives to participating in the crime.” Id. at 1178 (¶ 48).

¶28. Applying this four-part test to the facts of this case, we find that the circuit judge did not err in refusing to grant a duress instruction because there was no foundation in the evidence to establish duress. First, Johnson failed to satisfy part one of the test in that he did not establish that he was threatened in any way while he was committing the crimes. Like in Ruffin, Johnson did not provide evidence that while the crimes were occurring he was under threat of imminent danger, death, or serious bodily injury. He testified that only after the crimes were committed did Taylor threaten his life if he told anyone. Also similar to Ruffin, Johnson possessed the gun during at least one point of the crimes. Franklin testified that Johnson held the gun while Taylor was out of the car for approximately ten to fifteen minutes. It was at that time that Johnson and Franklin could have escaped. Additionally, Johnson could have told Taylor that he did not want to participate. We find the circuit judge did not err in refusing to grant Johnson’s request for a jury instruction on the theory of duress.

¶ 29. This issue is without merit.

¶ 30. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, ARMED ROBBERY, AND SENTENCE OF TEN YEARS; COUNT II, ARMED CARJACKING, AND SENTENCE OF TEN YEARS; COUNT III, KIDNAPPING, AND SENTENCE OF TEN YEARS; COUNT IV, BURGLARY OF A DWELLING, AND SENTENCE OF FIFTEEN YEARS WITH TEN YEARS TO SERVE, FIVE YEARS SUSPENDED, AND FIVE YEARS OF POST-RELEASE SUPERVISION; AND COUNT V, FIREARM ENHANCEMENT, AND SENTENCE OF FIVE YEARS; WITH THE SENTENCES IN COUNTS I, II, III, AND IV TO RUN CONCURRENTLY AND THE SENTENCE IN COUNT V TO RUN CONSECUTIVELY TO THE CONCURRENT SENTENCES IN COUNTS I, II, III, AND IV; ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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


author: MURDOCK, Justice.

text:
    Sammy THOMAS and Pam Thomas v. SLOAN HOMES, LLC, et al.
    1100395.
    Supreme Court of Alabama.
    Sept. 16, 2011.
    J. Harry Blalock of Blalock & Blalock, P.C., Hoover, for appellants.
    Carl Dalton NeSmith, Jr., of Smith & NeSmith, P.C., Oneonta, for appellees.
   MURDOCK, Justice.

This case concerns the applicability of the doctrine of merger to a deed executed and delivered in satisfaction of the grant- or’s obligations under a residential sales agreement. Sammy Thomas and Pam Thomas appeal from the Blount Circuit Court’s order granting a motion to compel arbitration filed by Sloan Homes, LLC (“Sloan Homes”), David Sloan, and Teresa Sloan in the Thomases’ action alleging breach of contract and tortious conduct in relation to the construction of a house by Sloan Homes, the grantor under the residential sales agreement. The question presented by this appeal is whether, under the doctrine of merger, the execution and delivery of the deed in this case nullified an arbitration clause included in the antecedent residential sales agreement.

I. Facts and Procedural History

On October 13, 2007, the Thomases entered into what appears to be a standard form “General Residential Sales Contract” with Sloan Homes (“the sales contract”) for the purchase of a residence, the construction of which by Sloan Homes was nearing completion. The sales contract contained an arbitration clause that provided as follows:

“MEDIATION AND ARBITRATION/WAIVER OF TRIAL BY JURY: All claims, disputes or other matters in question arising out of or relating in any way to this Contract or the breach thereof, including claims against any broker or sales associate, or relating to the relationship involved with, created by or concerning this Contract, including the involvement of any broker or sales associate (‘Claim’), shall be submitted to mediation with a mutually agreed upon mediator within forty-five (45) days of notice of the Claim. In the event no mediation resolution is reached within sixty (60) days of the party’s notice of the Claim, all Claims shall be resolved by binding arbitration by a single arbitrator in Birmingham, Alabama in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. EACH PARTY ACKNOWLEDGES THAT HE OR SHE IS KNOWINGLY WAIVING THE RIGHT TO A TRIAL BY JURY RELATING TO ALL CLAIMS. All disputes concerning the arbitrability of any Claim or the enforceability or scope of this provision shall be subject to the same binding arbitration. The parties shall bear equally the cost of the arbitrator and each party shall otherwise bear their own costs; provided the arbitrator shall have the authority to award costs as a part of this award to the extent authorized by applicable law. The arbitrator shall follow the law applicable to any Claim and shall be empowered to award any damages or other relief which would be available under the law applicable to any such Claim. The determination of the arbitrator shall be final, binding on the parties and nonap-pealable, and may be entered in any court of competent jurisdiction to enforce it. The parties acknowledge and agree that the transactions contemplated by and relating to this Contract, which may include the use of materials and components which are obtained from out-of-state and which otherwise include the use of interstate mails, roadways and commerce, involve interstate commerce, as that term is defined in the Federal Arbitration Act, 9 U.S.C. § 2.”

(Capitalization in original; emphasis added.)

The sales contract also contained a section with a choice of boxes to be “checked” to indicate whether the seller “does” or “does not” agree to provide a “Home Warranty Policy” that would be “effective for one year from the date of closing.” Neither box was checked. In the space immediately above this section, however, was the following handwritten statement: “1 years [sic] Builders Warranty.” On October 15, 2007, the parties signed an addendum to the sales contract that set forth certain items that were to be completed in a specified manner as it related to construction of the house.

On November 7, 2007, the Thomases and Sloan Homes “closed” the sale of the house; a general warranty deed was executed and delivered to the Thomases. The deed contained only those provisions as are characteristic of and common to general warranty deeds, including, for example, a description of the property, a recitation of the purchase price, language of conveyance describing the nature of the estate conveyed, and covenants and warranties pertaining to the quality of title held by the grantor and conveyed to the grantees. The deed made no mention of the sales contract and contained none of the other terms that were in the sales contract, including the arbitration clause.

At the closing, the Thomases also were provided a separate written “Limited New Home Warranty” (“the home warranty”) from Sloan Homes as the “builder.” The home warranty provided that Sloan Homes warranted the Thomases’ house “to be free from latent defects for a period of one (1) year following closing or occupancy, whichever event shall occur first.” The home warranty expressly stated that “[t]his warranty is given in lieu of any and all other warranties either express or implied, including any implied warranty of merchantability, fitness for a particular purpose, habitability and workmanship....” Like the warranty deed, the home warranty did not contain an arbitration clause.

On November 6, 2009, the Thomases filed an action in the Blount Circuit Court against Sloan Homes and the owners of Sloan Homes, David and Teresa Sloan. The Thomases alleged the following claims in their complaint: breach of the home warranty; breach of the implied warranty of merchantability, fitness for a particular purpose, and habitability; negligent/wanton failure to warn; “negligent/wanton development,” i.e., developing a residential subdivision on land not suitable for that purpose; negligent/wanton construction; suppression; and breach of contract in failing to construct the house in a workmanlike manner. The gist of their complaint was that Sloan Homes built the house purchased by the Thomases in an area that previously had flooded and that had “water problems.” The Thomases alleged that Sloan Homes and the Sloans knew about the flooding and water problems but failed to inform the Thomases of this information before they entered into the sales contract and before the closing at which the property was actually conveyed to the Thomases. They also alleged that despite knowing of the flooding and water problems, Sloan Homes failed to build their house in a manner that would compensate for potential water and moisture problems. The Thomases’ alleged that, as a result, the house had sustained severe water and moisture damage that would cost a large amount to repair and that diminished the value of the house and that the damage to the house rendered it uninhabitable.

Sloan Homes and the Sloans answered the complaint on December 8, 2009. On September 28, 2010, Sloan Homes and the Sloans filed a motion to compel arbitration, attaching the sales contract to the motion and citing the arbitration clause contained in that contract. On November 10, 2010, the Thomases filed their response and opposition to Sloan Homes and the Sloans’ motion, attaching to their response the warranty deed and the home warranty and noting the lack of an arbitration clause in either document.

On November 15, 2010, the circuit court entered an order granting the motion to compel arbitration. In its order, the circuit court did not provide reasons for granting the motion. The Thomases appeal from the order granting the motion to compel arbitration.

II. Standard of Review

“ ‘This Court’s review of an order granting or denying a motion to compel arbitration is de novo. First American Title Ins. Corp. v. Silvernell, 744 So.2d 883, 886 (Ala.1999); Crimson Indus., Inc. v. Kirkland, 736 So.2d 597, 600 (Ala.1999); Patrick Home Ctr., Inc. v. Karr, 730 So.2d 1171 (Ala.1999).’
“United Wisconsin Life Ins. Co. v. Tankersley, 880 So.2d 385, 389 (Ala.2003). Furthermore:
“ ‘ “A motion to compel arbitration is analogous to a motion for summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce. Id. ‘After a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.’ ”
‘Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (emphasis omitted)).’
“Vann v. First Cmty. Credit Corp., 834 So.2d 751, 753 (Ala.2002).”

Cartwright v. Maitland, 30 So.3d 405, 408-09 (Ala.2009).

III. Analysis

The Thomases do not dispute that the sales contract contains an arbitration clause or that the sales contract evidences a transaction affecting interstate commerce. The sole issue presented by this appeal is whether the doctrine of merger operates to nullify the arbitration clause in the sales contract. Specifically, the Thomases rely on the fact that the deed delivered to them at the closing on the sale of the house contained no arbitration provision, and they cite Russell v. Mullis, 479 So.2d 727 (Ala.1985), for the following proposition:

“Under the doctrine of ‘merger,’ ordinarily, in the absence of fraud or mistake, when a contract to sell and convey real estate has been consummated by the execution and delivery of a deed, ... the preliminary contract becomes func-tus officio, and the deed becomes a sole memorial of the agreement, and upon it the rights of the parties rest....”

479 So.2d at 730. We reject the Thom-ases’ merger argument.

As the Court of Civil Appeals observed in the relatively recent case of Brogden v. Durkee, 16 So.3d 113, 115 (Ala.Civ.App.2009):

“ ‘[I]t is well settled that “there are cases in which certain preliminary stipulations, such as are independent and collateral and not such preliminary agreement as would be merged in the conveyance, survive the deed and confer independent causes of action.” ’ Starr v. Wilson, 11 So.3d 846, 855 (Ala.Civ.App.2008) (quoting Ridley v. Moyer, 230 Ala. 517, 520, 161 So. 526, 528 (1935)); see also Rickenbaugh v. Asbury, 28 Ala.App. 375, 380, 185 So. 181, 184 (1938) (holding that a seller’s obligation, under a real-estate sales contract, to provide water for domestic purposes did not merge into the deed).”

The limitation of the merger doctrine has been further explained as follows:

“The real merger-exception rule in the sale of realty is that ‘where the antecedent contract contains provisions imposing obligations upon the vendor other than those relating to title or possession, and ... collateral thereto ... such collateral provisions will be held to survive the deed.’ Where the antecedent contract contains an agreement to build, repair or construct as well as an agreement to convey, it is too plain to debate that the actual transfer of the deed (which passes only legal title) is ‘only a part performance of the provisions of the antecedent ... contract,’ and that the agreements to build or construct ‘come under the collateral agreement theory’ and hence are clearly exempted from the operation of merger in the first place. The practice of calling such a dual-purpose antecedent contract a mere ‘sales contract,’ so as to effect its entire merger into the deed, ignores the true nature of the agreement and ignores modern business reality with the result of substantial injustice to uncounted home buyers in this state.
“The rational basis for the merger rule is that where parties enter into a final contract all prior negotiations, understandings and agreements ‘on the same subject’ are merged into the final contract, and are accordingly extinguished .... [W]here the antecedent contract or contracts clearly provide for agreements or stipulations to build or construct as well as an agreement to convey, it is plain that the actual transfer of the deed, which is performance only of the agreement to convey, does not extinguish any duties and obligations arising out of the agreement to build.”

Holmes v. Worthey, 159 Ga.App. 262, 266-67, 282 S.E.2d 919, 923 (1981) (citations and emphasis omitted). See also Davencourt at Pilgrims Landing Homeowners Ass’n v. Davencourt at Pilgrims Landing, LC, 221 P.3d 234, 254 (Utah 2009) (stating that “ ‘[t]he doctrine of merger ... is applicable when the acts to be performed by the seller in a contract relate only to the delivery of title to the buyer’ ” and that “collateral acts to the conveyance of title by the seller ‘survive the deed and are not extinguished by it’” (quoting Stubbs v. Hemmert, 567 P.2d 168, 169 (Utah 1977))).

To the extent that disputes regarding the manner and quality of the construction of the home purchased by the Thomases was governed by the arbitration clause in the sales contract at issue, the rights and obligations of the parties under this clause were not altered by the delivery of an ordinary warranty deed and the conveyance of title accomplished thereby. The merger doctrine does not in this case extinguish the arbitration clause any more than it extinguishes other “collateral agreements” found in the sales contract.

IV. Conclusion

Based on the foregoing, we affirm the circuit court’s order granting Sloan Homes and the Sloans’ motion to compel arbitration of the Thomases’ claims.

AFFIRMED.

MALONE, C.J., and WOODALL, BOLIN, and MAIN, JJ., concur.

      . The "General Residential Sales Contract” at issue here had as its focus the sale of a residence by one party to another; except for certain items to be completed before closing as described in an addendum to the sales contract (see infra), this sales contract by its terms was not concerned with the construction of the residence. Nonetheless, the argument presented to this Court by the Thomases contemplates that, but for the contended-for application of the merger doctrine, the arbitration clause in this contract would be applicable to their claims relating to the alleged defects in the construction of their house. Whether that is correct is not an issue that has been presented to us in this appeal and, therefore, is not an issue that we address.

      . In Morris v. Strickling, 579 So.2d 609 (Ala.1991), this Court noted that in Cochran v. Keeton, 287 Ala. 439, 252 So.2d 313 (1971), the Court held that "the rule of caveat emptor would no longer be applicable to the sale of a newly constructed house, and recogniz[ed] an implied warranty of fitness and habitability with regard to such sales.” 579 So.2d at 610.

      . The Thomases also assert that the separate written warranty provided to them by Sloan Homes at the closing, which as noted also did not contain an arbitration clause, operated to nullify the arbitration clause in the sales contract; however, the Thomases provide no discussion or authority in support of this assertion. This Court has no obligation to perform the parties’ research or to craft arguments for the parties. See Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994).


author: MAIN, Justice.

text:
    Ex parte STENUM HOSPITAL et al. (In re Elizabeth Duncan and John Duncan v. Madison Square Associates, Ltd., et al.).
    1100245.
    Supreme Court of Alabama.
    Sept. 16, 2011.

      P. Scott Arnston and Jeffrey T. Kelly of Lanier Ford Shaver & Payne P.C., Huntsville, for petitioners.
    Tara L. Helms of Martin & Helms, P.C., Huntsville, for respondents Elizabeth Duncan and John Duncan.
    Earl T. Forbes of Wilmer & Lee, P.A., Huntsville; and Stephen W. Mooney, Terrance C. Sullivan, Lucy R. Atkinson, and Laura L. Voght of Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC, Atlanta, Georgia, for respondents Madison Square Associates, Ltd., ERMC II, L.P., CBL & Associates Properties, Inc., and CBL Associates Management, Inc.
   MAIN, Justice.

Stenum Hospital (“Stenum”), Sue Hart, James Rider, Malte Peterson, Dr. Jens Dannenberg, Dr. Karl Ritter-Lang, Dr. Heiner Beese, and Dr. Hans-Georg Ze-chel, third-party defendants in an action pending in the Madison Circuit Court (hereinafter referred to collectively as “the hospital parties”), petition this Court for a writ of mandamus directing the trial court to vacate its order denying their motion to dismiss the third-party complaint filed against them by Madison Square Associates, Ltd. (“Madison Square”), ERMC II, L.P., CBL & Associates Properties, Inc., and CBL & Associates Management, Inc. (hereinafter referred to collectively as “the mall parties”), and to enter an order dismissing the third-party complaint. We grant the petition and issue the writ.

I. Factual Background and Procedural History

In February 2007, Elizabeth Duncan slipped and fell on a wet tile floor at Madison'Square Mall in Huntsville. Madison Square Mall is owned by Madison Square; the other mall defendants manage the mall and provide security or housekeeping services. According to her second amended complaint, Elizabeth sustained a fracture to her left patella and “aggravated and/or sustained injuries to her spine, including her neck and back.” She became partially paralyzed after she underwent disk-replacement surgery at Stenum, which is located in Germany. Elizabeth and her husband, John, subsequently sued the mall parties. Elizabeth alleged claims of negligence and wantonness resulting in the injuries she suffered when she fell; John alleged a claim of loss of consortium.

During the litigation process, the mall parties filed a third-party complaint against the hospital parties. Stenum, a German hospital, advertises on the Internet and has marketing representatives in the United States; the other hospital parties are employees and/or representatives of Stenum. In their third-party complaint, the mall parties alleged claims of medical malpractice, fraud, negligence per se, breach of contract, abandonment of contract, abandonment of professional relationship, battery, the tort of outrage, and lack of informed consent. In their prayer for relief in their third-party complaint, the mall parties requested (1) that the hospital parties be required to reimburse Madison Square for any damages awarded to the Duncans; (2) that the hospital parties be found liable for all damages incurred by the mall parties as a result of the hospital parties’ conduct; and (3) that the hospital parties be required to reimburse the mall parties for fees, costs, and expenses incurred in having to defend against the Duncans’ claims and in having to file a third-party complaint because of the hospital parties’ alleged misconduct.

The hospital parties moved to dismiss the third-party complaint, asserting all the defenses in Rule 12(b)(1) through (6), i.e., lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue, insufficiency of process, insufficiency of service of process, and failure to state a claim on which relief can be granted. The mall parties opposed the motion; the trial court denied the motion without comment, and the hospital parties then petitioned this Court for a writ of mandamus.

II. Standard of Review

This Court has recognized that “[mjandamus review is available where the petitioner challenges the subject-matter jurisdiction of the trial court based on [a third-party complainant’s] alleged lack of standing to bring the lawsuit.” Ex parte HealthSouth Corp., 974 So.2d 288, 292 (Ala.2007). Furthermore,

“ ‘[m]andamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So.2d 805 (Ala.2000).”

Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003) (emphasis omitted).

III. Analysis

The hospital parties argue that the dis-positive issue presented by their petition for the writ of mandamus is whether the mall parties have standing to assert the claims made in the third-party complaint. The hospital parties maintain that the mall parties do not have standing; therefore, the hospital parties argue, the trial court does not have jurisdiction over the claims asserted in the third-party complaint and has “no alternative but to dismiss the action.” State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999).

This Court has explained the requirement of standing as follows:

“ ‘To say that a person has standing is to say that that person is the proper party to bring the action. To be a proper party, the person must have a real, tangible legal interest in the subject matter of the lawsuit.’ Doremus v. Business Council of Alabama Workers’ Comp. Self-Insurers Fund, 686 So.2d 252, 253 (Ala.1996). ‘Standing ... turns on “whether the party has been injured in fact and, whether the injury is to a legally protected right.” ’ [State v. Property at ] 2018 Rainbow Drive, 740 So.2d [1025,] 1027 [ (Ala.1999) ] (quoting Romer v. Board of County Comm’rs of the County of Pueblo, 956 P.2d 566, 581 (Colo.1998) (Kourlis, J., dissenting)) (emphasis omitted). In the absence of such an injury, there is no case or controversy for a court to consider. Therefore, were a court to make a binding judgment on an underlying issue in spite of absence of injury, it would be exceeding the scope of its authority and intruding into the province of the Legislature. See City of Daphne v. City of Spanish Fort, 853 So.2d 933, 942 (Ala.2003) (‘The power of the judiciary ... is “the power to declare finally the rights of the parties, in a particular case or controversy....”’ (quoting Ex parte Jenkins, 723 So.2d 649, 656 (Ala.1998))); Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (‘[T]he law of Art. Ill standing is built on a single basic idea — the idea of separation of powers.’).”

Town of Cedar Bluff v. Citizens Caring for Children, 904 So.2d 1253, 1256 (Ala.2004).

Standing requires a real injury to a legally protected right that belongs to the party asserting the claim, the hospital parties say, and cannot be based on an alleged injury to a right of a third party. Because the Duncans have not alleged that the hospital parties committed any tort that resulted in injury to them, the hospital parties argue, the mall parties cannot make such allegation on the Duncans’ behalf. The hospital parties maintain that the mall parties have appropriated the Duncans’ potential claims and have asserted causes of action in the third-party complaint as if the claims are legally protected rights belonging to the mall parties. The hospital parties also argue that the third-party complaint filed by the mall parties does not state a claim for indemnity or contribution.

The allegations in the third-party complaint clearly do not state a claim for indemnity or contribution. Each count in the third-party complaint deals with some aspect of Elizabeth’s surgery and her resulting paralysis. The mall parties do not have a “real, tangible legal interest in the subject matter of the lawsuit” initiated by their third-party complaint against the hospital parties — Elizabeth’s injuries allegedly suffered following her surgery to repair the injury suffered when she fell. Nevertheless, the mall parties argue that the Alabama Rules of Civil Procedure do not require any specific language in a pleading but require only that the pleading contain enough information to put the other party on notice of what the pleading is alleging. Even though their third-party complaint does not contain a claim for indemnity or contribution, the mall parties contend that because they included in their prayer for relief a claim for reimbursement the third-party complaint adequately put the hospital parties on notice that the mall parties were asserting a claim for indemnity from the hospital parties for any damages ultimately awarded the Duncans in the action against the mall parties.

Rule 8(a), Ala. R. Civ. P., provides:

“A pleading which sets forth a claim for relief ... shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief the pleader seeks.”

It is settled law that the purpose of notice pleading is to provide a defendant with adequate notice of the claims against it and that, pursuant to the rules of pleading, a court will construe a pleading liberally to effect the purpose of the Alabama Rules of Civil Procedure. Ex parte International Refining & Mfg. Co., 972 So.2d 784, 789-90 (Ala.2007). It is well settled that, under Alabama law, joint tortfeasors are not entitled to contributions from one another and that, subject to limited exceptions not applicable here, joint tortfeasors are not entitled to indemnity from one another. J.C. Bradford & Co. v. Calhoun, 612 So.2d 396 (Ala.1992).

The claims asserted in the mall parties’ third-party complaint are all claims against the hospital parties that only the Duncans can assert. The third-party complaint alleges (1) that Stenum, Peterson, Dr. Dan-nenberg, Dr. Beese, Dr. Ritter-Lang, and Dr. Zechel committed malpractice in their treatment of Elizabeth; (2) that Stenum, Hart, Rider, Peterson, Dr. Ritter-Lang, and Dr. Zechel fraudulently induced Elizabeth to undergo treatment at Stenum; (3) that the conduct of Hart, Rider, and Peterson constituted negligence per se; (4) that Stenum, Hart, Peterson, Dr. Ritter-Lang, and Dr. Zechel breached their contract with Elizabeth; (5) that Dr. Ritter-Lang abandoned the contract with Elizabeth; (6) that Dr. Ritter-Lang abandoned the professional relationship he had with Elizabeth when he did not perform her surgery and allowed Dr. Dannenberg and Dr. Beese to perform the surgery; (7) that Dr. Dannenberg and Dr. Beese committed battery upon Elizabeth when they performed her surgery instead of Dr. Ritter-Lang; (8) that the conduct of Stenum, Peterson, Dr. Ritter-Lang, Dr. Dannenberg, Dr. Ze-chel, and Dr. Beese toward Elizabeth was outrageous; and (9) that Stenum, Peterson, Dr. Ritter-Lang, Dr. Dannenberg, Dr. Zechel, and Dr. Beese lacked Elizabeth’s informed consent to the surgery performed at Stenum.

Rule 14, Ala. R. Civ. P., permits a defendant, as a third-party plaintiff, to have a summons and complaint served upon one who is not a party to the action but who is or may be liable to the defendant for all or some portion of the plaintiffs claims against the defendant. Quality Homes Co. v. Sears, Roebuck & Co., 496 So.2d 1, 1-2 (Ala.1986). According to the Committee Comments to Rule 14, the rule cannot be used by one joint tortfeasor to implead another.

“Rule 14 is entirely procedural in nature and will not affect substantive rights. It does not establish a right of reimbursement, indemnity nor contribution, but merely provides a procedure for the enforcement of such rights where they are given by the substantive law. For example, negligent joint tortfeasors do not have a right of contribution against each other in Alabama. Gobble v. Bradford, 226 Ala. 517, 147 So. 619 (1933). Thus if a plaintiff sues one of two negligent joint tortfeasors, the one sued cannot implead the other under Rule 14, for he has no substantive right against the other.”

Rule 14, Ala. R. Civ. P., Committee Comments on 1973 Adoption (emphasis added). See also 1 C. Lyons, Jr., and A. Howell, Alabama Rules of Civil Procedure Annotated § 14.1 (4th ed.2004):

“[Tjhird-party practice cannot undermine the Alabama law which denies contribution among joint tortfeasors. Thus, a defendant cannot use Ala. R. Civ. P. Rule 1U as the vehicle for tendering to the plaintiff a defendant which the plaintiff has elected not to sue.
“The province of a third party claim is therefore limited to instances of contractual indemnification from a claim or the indemnification that flows from circumstances where the defending party is entitled to stand in the shoes of claimant if the defending party is liable to the claimant. See Home Ins. Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 285 So.2d 468, 91 A.L.R.3d 833 (1973).... Compare Ala. R. Civ. P. Rule 13(g), cross-claims, which can embrace either a claim for indemnity or a claim which merely arises out of the same transaction or occurrence that is the subject matter of the original action or of a counterclaim therein or relating to any property that is the subject of the original action.
“Under Alabama law, the third-party complaint is not a vehicle through which the original defendant tenders another party omitted from the action by the plaintiff and who is alleged to be either jointly liable to the plaintiff along with the originally named defendant or solely liable to the plaintiff. The substantive proscription against contribution renders the third-party complaint for indemnity legally insufficient under Alabama law if the would-be third party defendant is merely a fellow culprit.
“If the potential third-party defendant is alleged to be the sole wrongdoer, the third party complaint is also insufficient as it does not sound in indemnity. The defendant’s proper course of action where some one else is perceived to be the sole wrongdoer is the defense of lack of causation available under a denial of the corresponding allegation in plaintiffs complaint.... ”

(Emphasis added.)

The fact that the mall parties request “reimbursement” from the hospital parties in their prayer for relief in the third-party complaint does not transform the mall parties’ third-party action into one for indemnity. The third-party complaint does not seek either contractual indemnification or indemnification resulting from a circumstance where the mall parties are entitled to stand in the shoes of the Dun-cans. The mall parties’ third-party complaint alleging medical malpractice and other related claims against the hospital parties has the effect of tendering to the Duncans defendants they have elected not to sue, an impermissible use of third-party practice. If the mall parties are alleging that the hospital parties, instead of the mall parties, are liable to the Duncans, they have used the wrong procedural vehicle in attempting to assert their claims in a third-party complaint filed under Rule 14. Because the mall parties’ third-party complaint does not allege any claims other than those that could be brought only by the Duncans, the mall parties clearly are not the proper parties to assert those claims; therefore, they lack standing. In the absence of standing on the part of the mall parties to assert the claims made in the third-party complaint, the trial court does not have jurisdiction over the third-party complaint and should have dismissed it.

IV. Conclusion

We grant the petition, and we direct the trial court to vacate its order denying the hospital parties’ motion to dismiss the third-party complaint and to enter an order dismissing the third-party complaint. Our conclusion that the mall parties lack standing to assert the claims they assert against the hospital parties in the third-party complaint pretermits our consideration of the other arguments made by the parties.

PETITION GRANTED; WRIT ISSUED.

MALONE, C.J., and WOODALL and BOLIN, JJ., concur.

MURDOCK, J., concurs in the result.