author: CARLTON, J.,

text:
    Manual COOPER a/k/a Manuel Cooper, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00924-COA.
    Court of Appeals of Mississippi.
    April 26, 2011.
    Rehearing Denied June 28, 2011.
    Certiorari Denied Aug. 25, 2011.

      W. Daniel Hinchcliff, attorney for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. A jury in the DeSoto County Circuit Court found Manual Cooper guilty of the crime of false pretenses. The trial court sentenced Cooper as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev.2007) to life without eligibility for parole or probation. The trial court subsequently denied Cooper’s motion for a judgment notwithstanding the verdict (JNOV) and motion for a new trial. Cooper is presently incarcerated in an institution under the supervision of the Mississippi Department of Corrections (MDOC). Aggrieved, Cooper appeals his conviction and sentence raising the following issues for this Court’s review: whether the trial court erred in (1) denying Cooper’s motion for a directed verdict and a JNOV, (2) denying Cooper’s motion for a new trial, and (3) allowing the hearsay testimony of Officer Greg Oltremari. Finding no error, we affirm the judgment of the trial court.

FACTS

¶ 2. A trial commenced on April 28, 2009, in the Circuit Court of DeSoto County. At the trial, Hazel Baker, an elderly widow, testified that on April 24, 2007, Cooper, along with three other males, approached her and offered to clean the gutters on her house for approximately two hundred dollars. Baker testified that she agreed to the price, and the men began their work on the exterior of her house. Baker testified that at some point later, she walked into her backyard and spoke with Cooper. Baker testified that she saw Cooper walking around in the back yard and saw one man on a ladder wiping the exterior of one of the gutters. Baker then testified that she had the following conversation with Cooper:

Well, when they said they was through, I told him that I would have to go in. And he said we’ll go in and figure up how much it is, and I said I’ll have to get my checkbook. And he said, well, we don’t take checks. We have to have cash. So I went in the house, and he followed me in the house and was hovering right over me. And he said that I would have to give him the cash, and at that time I got afraid, and I told him, I said, ‘Well, I’ll have to go to the bank to get the money.” And he said, “Well, you’ll just have to go up there and get it.” And I said, “[b]ut I can’t drive. I just had surgery.” And he says, “Well, I’ll drive you up there.” And dumb me, I let him drive me up there.
[W]hen he came in, I was going to write him out a check, and I asked him how much it would be. And he at first said [$]2[,]500, and it just floored me. And so then when he said that, he said, “[b]ut I’ll drop it to [$]2[,]000.” And I still, you know, couldn’t believe that he was saying that, but I knew I had to do something, and I was afraid to not do it. And so we went to the bank, and I drew out $2,000 and gave — but I didn’t give it to him right then.

Baker testified that after she and Cooper returned to her house from the bank, she gave Cooper the money and requested a receipt. Baker then testified that Cooper told her that he was out of receipts, but he promised to bring her one the next day. Baker testified that Cooper then wrote the name “Tom. Lee” and a telephone number on a sheet of paper torn from a notebook, representing the name and number as his own, and promised to return the following day with a receipt. Baker testified that Cooper also told her that she could reach him anytime at that number. Baker further testified that she soon realized that the name and number Cooper had provided her were fictitious, as the name written was “Tom Lee,” not Manual Cooper, and no one answered the telephone number when she called. Baker testified that after these events occurred, she called her son, and he contacted the Southaven Police Department. Officer Greg Oltremari and Detective Todd Samples, both of the Southa-ven Police Department, investigated the claim.

¶ 3. At trial, Cooper testified that he, his brother-in-law, and their sons approached Baker at her house on April 24, 2007. Cooper testified that upon arrival at Baker’s house, his brother-in-law, Clarence Worley, offered to clean and repair Baker’s vinyl siding. Cooper testified that after Baker had accepted the offer, they began their work of cleaning and repairing the vinyl siding on her house. Cooper testified that Baker remained inside her house the entire time that the men conducted their work on the exterior of her house. Cooper further testified that after the men completed the work, he described to Baker the work that they had completed on her home and told her that she owed them $2,500; but he later decreased the amount to $2,000. Cooper testified that Baker requested a ride to the bank to get the cash for payment and that he volunteered to drive her there. Cooper then testified that when they arrived back to Baker’s house, she paid him and requested a receipt. Cooper testified that Worley handed him a sheet of paper with his name and telephone number on it to give to Baker. Throughout his testimony, Cooper provided that he never threatened or intimidated Baker.

¶ 4. At the conclusion of the trial, the jury found Cooper guilty of false pretenses. The trial court then sentenced Cooper under Mississippi Code Annotated section 99-19-83 (Itev.2007) as a habitual offender to a term of life without eligibility for parole or probation. Aggrieved, Cooper filed this appeal.

DISCUSSION

I. SUFFICIENCY OF THE EVIDENCE

¶ 5. In his first assignment of error, Cooper argues that the trial court erred in denying his motion for a directed verdict and a JNOV because the State failed to prove that Cooper intended to cheat or defraud the alleged victim. Cooper asserts that he never represented a past or existing fact that the work on the house was completed. In response, the State claims that a reasonable juror could have found Cooper guilty based on the evidence presented by the State; thus, the trial court committed no error in denying Cooper’s motion for a directed verdict.

¶ 6. This Court utilizes a well-established standard of review when considering a denial of a motion for directed verdict or for a JNOV. Conner v. State, 45 So.3d 300, 303 (¶ 10) (Miss.Ct.App.2010) (citing Alford v. State, 656 So.2d 1186, 1189 (Miss.1995)). “The standard of review for denial of a motion for a directed verdict or for a JNOV is the same.” Id. (citing Alford, 656 So.2d at 1189). When reviewing a motion for a directed verdict, we look to the sufficiency of the evidence and construe the evidence in the light most favorable to the prosecution. Id. (citing Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)). The Mississippi Supreme Court in Bush provided the following:

[I]n considering whether the evidence is sufficient to sustain a conviction in the face of a motion for [a]directed verdict or for [a] judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows “beyond a reasonable doubt that [the] 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.” However, this inquiry does not require a court to
“ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Bush, 895 So.2d at 843 (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 7. Mississippi Code Annotated section 97-19-39 (Rev.2006) codifies the crime of false pretenses. The jury convicted Cooper of a felony under section 97-19-39(2), which provides in pertinent part:

Every person, who with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by another false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing, with a value of Five Hundred Dollars ($500.00) or more, upon conviction thereof shall be guilty of a felony and punished by imprisonment in the State Penitentiary not exceeding ten (10) years, and by a fine not exceeding Ten Thousand Dollars ($10,000.00).

Miss.Code Ann. § 97-19-39(2). In a false-pretenses case, the State must prove that “the pretenses were false, that the appellant knew them to be false[,] and that the pretenses were the moving cause by which the money was obtained.” Allred v. State, 605 So.2d 758, 761 (Miss.1992) (citing Gordon v. State, 458 So.2d 739, 740 (Miss.1984)). The State bears the burden of proof to show beyond a reasonable doubt that a false representation was made with regard to an existing fact. Id. (citing Lee v. State, 244 Miss. 813, 818, 146 So.2d 736, 737 (1962); Button v. State, 207 Miss. 582, 587, 42 So.2d 773, 774 (1949)). The property or money obtained under false pretenses is required to be “to the detriment or injury of the person from whom he obtains the same.” Allred, 605 So.2d at 761 (quoting Carter v. State, 386 So.2d 1102, 1105 (Miss.1980)).

¶ 8. When considering the facts in the present case in the light most favorable to the State, we find sufficient evidence existed in this record for the jury to convict Cooper of false pretenses. The jury heard testimony from the victim, Baker, that Cooper offered to clean her gutters on her house for approximately two hundred dollars. Baker testified that no agreement concerning the cleaning or repairing of the house’s vinyl siding existed. Baker further testified that neither party even mentioned the siding of her house at any time on the day in question, but reflected instead an agreement pertaining to cleaning the gutters on her house. In addition, Baker testified that after Cooper and his crew “worked” on her house, Cooper told her that he and his crew were “through” with their work and demanded $2,000, which she subsequently paid. The State also presented evidence to the jury through the testimony of Detective Samples, the criminal investigator in this case, and through photographs take by Detective Samples of the gutters on Baker’s house, that the gutters appeared uncleaned.

¶ 9. In light of these facts, we find that any rational juror could have found beyond a reasonable doubt that Cooper knowingly and intentionally made a false statement to Baker that the work was completed and payment was then due and that Baker paid Cooper $2,000. While Cooper contends that he never represented a past or existing fact to Baker that the work was completed, we find that the State presented sufficient evidence through Baker’s testimony for the jury to conclude that when Cooper communicated to Baker that he was “through” with the work, he was representing completion of the work of cleaning and repairing the gutters on Baker’s house. See Bush, 895 So.2d at 843 (¶ 16). As such, this issue lacks merit.

II. WEIGHT OF THE EVIDENCE

¶ 10. In Cooper’s second assignment of error, he asserts that the trial court erred in denying his motion for a new trial. Cooper argues that Baker’s testimony is contradictory, improbable, and was influenced by her son’s reactions to the costly job. In addition, Cooper alleges that this case is a simple contract case; thus, a criminal conviction of false pretenses is unconscionable.

¶ 11. The standard of review employed by this Court when reviewing a denial of a motion for a new trial is as follows:

[An appellate court] must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. A new trial will not be ordered unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction unconscionable injustice.

Welch v. State, 45 So.3d 1231, 1235 (¶ 13) (Miss.Ct.App.2010) (citing Valmain v. State, 5 So.3d 1079, 1086 (¶ 30) (Miss.2009)).

¶ 12. Examining the evidence in the light most favorable to the verdict, we are unable to find that the verdict is against the overwhelming weight of the evidence such that an unconscionable injustice will occur if we allow the verdict to stand. See Patterson v. State, 37 So.3d 702, 704 (¶ 11) (Miss.Ct.App.2010) (citing Bush, 895 So.2d at 844-45 (¶¶ 18-19)). The evidence presented at trial clearly supports the verdict.

¶ 13. At the trial, the jury heard testimony from Baker that: Cooper had offered to clean and repair the gutters on her house for $200; Cooper later communicated to Baker that he was “through” with the work and demanded $2,000 in payment; Baker paid this large sum of money out of fear; and Cooper provided Baker with a false name and telephone number when she requested a receipt. The State also presented evidence to the jury that the gutters appeared uncleaned. While Cooper alleges that Baker’s testimony is improbable and contradictory, we note that witness credibility is a matter for the jury to consider and determine. Price v. State, 892 So.2d 294, 297 (¶ 15) (Miss.Ct.App.2004).

¶ 14. Despite Cooper’s testimony that he contracted with Baker to clean and repair the siding on her house, not the gutters, and that a contractual dispute exists due to the parties’ failure to reach a mutual agreement as to the work to be done on Baker’s house, the jury convicted him of false pretenses. This Court recognizes that conflicting testimony as to the offense of false pretense, which focuses on the false representations made by Cooper seeking payment, existed. The record shows that Baker clearly testified that Cooper represented to her that the work had been completed and that payment was due. Testimony also shows that indeed the work had not been completed, and further, Cooper knew that the work had not been completed when representing otherwise to Baker. The issue as to credibility and resolutions of conflicts in testimony lies within the province of the jury. This Court will not set aside a verdict merely on the ground of conflicting testimony where substantial evidence exists supporting the verdict. See Price, 892 So.2d at 297 (¶ 15); see also Patterson, 37 So.3d at 705 (¶ 14) (citing Crosby v. State, 856 So.2d 523, 528 (¶7) (Miss.Ct.App.2003)).

¶ 15. Accordingly, we find nothing in the record to indicate that the trial court abused its discretion in denying Cooper’s motion for a new trial. This issue is without merit.

III. HEARSAY

¶ 16. In Cooper’s final assignment of error, Cooper contends that the trial court erred in allowing Officer Oltremari to testify as to the statements made to him by Baker regarding the events that occurred on April 24, 2007.

¶ 17. This Court utilizes an abuse-of-discretion standard of review when reviewing a trial court’s ruling on the admission or exclusion of evidence. Woods v. State, 973 So.2d 1022, 1028 (¶ 15) (Miss.Ct.App.2008) (citing Ladnier v. State, 878 So.2d 926, 933 (¶27) (Miss.2004)). “An error in the admission or exclusion of evidence is not grounds for reversal unless the error affected a substantial right of a party.” Id. (citing Ladnier, 878 So.2d at 933 (¶ 27); M.R.E. 103(a)).

¶ 18. “Hearsay is defined as ‘a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter’ and is generally not admissible at trial.” Moss v. State, 977 So.2d 1201, 1207 (¶ 5) (Miss.Ct.App.2007) (citing M.R.E. 801(c); M.R.E. 802). Mississippi Rule of Evidence 801(d)(1)(B) provides: “A statement is not hearsay if ... [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive....”

¶ 19. In the present case, at the time the State introduced the statements of which Cooper complains at trial, Baker, the declarant, had already testified at trial to the events that occurred on the day in question. Baker had also already testified that she told Officer Oltremari about these events when he investigated her case later that same day. The defense then cross-examined Baker. After Baker and Cooper testified, the State called Officer Oltremari to provide rebuttal testimony. Officer Ol-tremari testified that he responded to a call to Baker’s home on April 24, 2007, to investigate a false-pretenses claim. Officer Oltremari then testified to the disclosures that Baker made to him upon his arrival at her house, stating:

A: Ms. Baker said that she was at home and a white pickup with four white males that had a magnetic sign on the door-she said she couldn’t remember what the sign said other than it had the word gutter in the sign-pulled up in front of her house. They wanted to solicit business of cleaning the gutters for her. She said that the male passenger told her that it would only cost her $200 to clean her gutters, and that while they went about their work, she went inside. A short time later the male passenger again wanted to speak with her and told her they were done, but that now the cost was going to be $2500, and she said that she could not pay that. So he said, “Well, I’ll cut you a break and make it 2000.”
Q: And did she in fact end up paying them?
A: Yes, she did.

After reviewing the testimony in the record, we find that the first two requirements of the rule are satisfied so as to allow the introduction of Baker’s prior consistent statements.

¶ 20. Lastly, we must make a determination as to whether the State offered the statement to rebut an express or implied charge against Baker of improper influence or motive. Based on our review of the record, the defense attempted to imply that Baker only contacted the authorities due to her dissatisfaction with the amount that she agreed to pay Cooper. In addition, the defense implied that Baker’s son improperly influenced her to contact the authorities concerning the event at issue. The purpose of allowing the statements made to Officer Oltremari by Baker was to rebut the implications made by the defense that Baker had acted through improper influence or with an improper motive when she accused Cooper of false pretenses.

¶21. This Court finds that the State satisfied each of the prerequisites of Mississippi Rule of Evidence 801(d)(1)(B); thus, the statements are removed from the category of impermissible hearsay. Accordingly, we hold that the trial court did not abuse its discretion in admitting the testimony of Officer Oltremari. This issue lacks merit.

¶ 22. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT OF CONVICTION OF FALSE PRETENSES AND SENTENCE AS A HABITUAL OFFENDER OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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

      . Cooper testified that he was unaware of Worley's whereabouts at the time of trial.

      . On direct examination, Cooper testified that he lacks the ability to read and write. Upon cross-examination, however, Cooper testified that he can write his name in print and cursive and can copy writings in print if someone supplies a guide to follow.


source: Caselaw Access Project

author: MAXWELL, J.,

license: Public Domain

text:
    In the Interest of Minors K.D.G. II and R.C.G. K.D.G., Appellant v. Winston County Department of Human Services, by Barbara Proctor, Social Services Director, and K.D.G. II and R.C.G., Minors, by and through their next friend, Barbara Proctor, Appellees.
    No. 2010-CA-00231-COA.
    Court of Appeals of Mississippi.
    Aug. 2, 2011.

      David E. Bane Jr., Louisville, attorney for appellant.
    Office of the Attorney General by Katherine Jane Caldwell, attorney for appel-lees.

      Before LEE, C.J., MYERS and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. For over six years, KDG’s two minor sons had been in the custody of the Winston County Department of Human Services (DHS), while KDG had been in and out of prison. After KDG failed in 2008 to comply with a plan to reunite him with his sons and did not visit them for over a year, DHS petitioned for termination of his parental rights. The Winston County Chancery Court granted termination on two statutory grounds — (1) KDG’s failure to contact his sons for over a year and (2) the substantial erosion of the relationship between KDG and his sons.

¶2. KDG appeals. He argues DHS failed to prove by clear and convincing evidence that grounds for termination existed. He also claims the chancery court failed to consider whether alternatives to termination would have been in his sons’ best interests. We find no error in the chancery court’s decision to terminate his parental rights. Therefore, we affirm.

FACTS

¶ 3. KDG was the legal father of both KDG II, born April 2000, and RCG, born September 2002. In February 2002, before RCG was born, KDG went to prison. In July 2003, the Winston County Youth Court determined the children were abused and neglected. It ordered they be placed in the custody of DHS, where they have remained for over six years. While both children had special emotional and psychological needs, KDG II’s needs have required placement at a treatment facility.

¶4. In November 2005, KDG was released on parole. In March 2006, he returned to prison for a parole violation. He was re-released in November 2006 and did not return to prison until May 2009.

¶ 5. In 2008, KDG requested custody of his sons but questioned the paternity of RCG. In July 2008, KDG underwent a court-ordered paternity test, which proved KDG was RCG’s biological father. KDG briefly saw RCG during the DNA test.

¶ 6. Also in July 2008, the youth court issued a permanency order intended to reunite KDG with his sons. The permanency order required KDG to enter into a service agreement with DHS, schedule visitation with both children, and pay $100 a month in child support. It also ordered KDG to undergo psychological evaluation.

¶ 7. The youth court held a review hearing on October 15, 2008. KDG did not attend. The youth court found KDG had not entered into a service agreement, had not made any efforts to visit his children, and had not paid any child support. KDG also had not undergone a psychological evaluation.

¶ 8. In April 2009, DHS filed a petition to terminate. In May 2009, KDG returned to prison. In November 2009, the youth court issued a bench ruling finding that it was in the best interests of the children that KDG’s parental rights be terminated. The youth court found KDG had not made any contact with either child in over a year. KDG did have some contact with DHS about his employment status and current address — but never to schedule visitation with his sons. Although KDG testified he had worked several jobs, he had not paid any child support or attempted to provide any care for his sons. The youth court also considered KDG’s criminal history, including a conviction for a violent felony.

¶ 9. The youth court found, by clear and convincing evidence, that DHS had proved: (1) KDG had no contact with either child in over a year, and (2) there had been a substantial erosion of his relationship with both children so that “they do not even know him.”

¶ 10. The chancery court incorporated the youth court’s bench ruling into a final judgment entered December 4, 2009. The chancellor found it was in the best interests of the children that KDG’s parental rights be terminated so that DHS could create a stable and permanent plan for the children’s future and allow both children to become be eligible for adoption.

¶ 11. KDG timely appealed.

LAW AND DISCUSSION

I. Standard of Review

¶ 12. When reviewing the termination of parental rights to a minor child, we look for “whether credible proof exists to support the chancellor’s finding of fact by clear and convincing evidence,” W.A.S. v. A.L.G., 949 So.2d 31, 34 (¶ 7) (Miss.2007) (quoting K.D.F.v. J.L.H. 933 So.2d 971, 975 (¶ 14) (Miss.2006)), keeping in mind “the best interest of the child is the paramount consideration.” In re V.M.S., 938 So.2d 829, 832(¶ 6) (Miss.2006) (citing Lauderdale County Dep’t of Human Servs. v. T.H.G., 614 So.2d 377, 385 (Miss.1992)).

II. Statutory Grounds for Termination

¶ 13. “Grounds for termination of parental rights shall be based on one or more of the [eight enumerated] factors” listed in Mississippi Code Annotated section 93-15-103(3) (Rev.2004). If a chancery, family, or county court is satisfied by clear and convincing evidence that grounds for termination exist, it may order termination of a parent’s rights. Miss.Code Ann. § 93-15-109 (Rev.2004). See W.A.S., 949 So.2d at 35(¶ 11) (holding only one statutory ground has to be proven to justify termination).

¶ 14. Here, the chancery court found termination grounds existed based on the following factors in section 93-15-103(3):

(b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year; [and]
(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment[.]

Miss.Code Ann. § 93-15-103(3)(b), (f).

A. No Contact for Over a Year

¶ 15. Relying on In re A.M.A., 986 So.2d 999, 1013-14 (¶¶ 32-33) (Miss.Ct.App.2007), KDG argues the chancery court erred in finding section 93-15-103(3)(b) applied. Because both children were over the age of three, DHS had to show by clear and convincing evidence KDG made no contact with his sons for over a year. Miss.Code Ann. §§ 93-15-103(3)(b), 93-15-109. KDG argues, because he saw RCG in July 2008 and called DHS in December 2008, this evidence defeats a “clear and convincing” finding of no contact.

¶ 16. Although DHS filed its petition to terminate in April 2009, the termination hearing was not held until November 18, 2009. See B.S.G. v. 958 So.2d 259, 270 (¶ 32) (Miss.Ct.App.2007) (calculating year of no contact based on time of termination hearing).

¶ 17. The only evidence of contact was KDG’s testimony that he called DHS in December 2008 and asked if it were possible to talk to his sons on the phone. Because of both sons’ mental states and KDG II’s placement at a treatment facility, DHS told KDG he could not just call his sons. To communicate with them he would have to schedule a visit. That was the entire point of the permanency order — for KDG to coordinate scheduled visits through DHS in order to be introduced back into his sons’ lives. Yet KDG neither entered into a service agreement with DHS nor scheduled visitation with either son. The youth court did not deem KDG’s testimony as credible evidence of contact. And we find no error in this conclusion.

¶ 18. We are cognizant of this court’s decision in A.M.A., where the father was incarcerated the entire year prior to termination. A.M.A., 986 So.2d at 1018-14 (¶ ¶ 32-33). In that case, we found section 93-15-103(3)(b) could not be a ground for termination because the father had attempted several phone calls to DHS during his imprisonment and sent Christmas gifts to his daughters. Id. at 1014 (¶ 33). The controlling issue was whether the year-long absence was “solely attributable to [the father’s] incarceration.” Id. at 1013 (¶ 32) (emphasis added). We determined, had the father not been in jail for the entire year leading up to the termination, “he would have continued the care and support that he exhibited prior to incarceration.” While we acknowledge KDG was in prison for six months prior to the termination hearing, we find KDG’s case distinguishable from A.M.A. KDG’s failure to contact his children was not solely attributable to his May 2009 incarceration. And unlike the father in A.M.A., there is no history of KDG’s care and support of his minor children prior to his returning to prison.

¶ 19. KDG argues the date for determining the one year of no contact was the filing of the termination petition in April 2009. KDG further asserts he did make contact with RCG in July 2008, within a year prior. The contact KDG refers to is the three to five minutes he saw RCG during the paternity test. But we cannot disregard that KDG did not initiate the contact with his son. Rather, this contact was merely incidental to KDG’s questioning whether he was RCG’s biological father. As to KDG II, KDG provides no evidence he made contact with KDG II after 2007. Thus, even under the earlier time period of April 2008 to April 2009, we find the fact that KDG happened to see RCG briefly at the court-ordered paternity procedure insufficient to overcome the chancery court’s finding section 93-15-103(3)(b) had been met.

¶ 20. Even if KDG’s evidence were sufficient to defeat termination based on section 93-15-103(3)(b), the chancery court’s use of this section to justify termination would not be reversible error. Termination requires only one statutory ground be proven. W.A.S., 949 So.2d at 35 (¶ 11). And we find section 93-15-103(3)(f) formed an independent basis for termination.

B. Substantial Erosion of the Father-Son Relationship

¶ 21. KDG argues there was no evidence, let alone clear and convincing evidence, to support the application of section 93 — 15—103(3)(f) because there was no testimony of antipathy by his sons toward him or erosion of his relationship with his sons.

¶ 22. “A finding of substantial erosion of the parent/child relationship necessarily involves a consideration of the relationship as it existed when the termination proceedings were initiated.” G.Q.A. v. Harrison County Dep’t of Human Res., 771 So.2d 331, 338 (¶ 29) (Miss.2000). At the time DHS initiated termination, KDG II and RCG had been in foster care for almost six years. Cf. id. (finding grounds for termination of parental rights to a child who had been in foster care for seven years). KDG had been in prison for three of those years — and demonstrably absent and unsupportive during the years he was out. KDG himself testified that his sons did not know him. And his sons’ foster parents, while acknowledging there was no antipathy by the sons toward KDG, testified about KDG’s prolonged absence from his sons’ lives. Based on this testimony, the chancery court found there was a substantial erosion of KDG’s relationship with his sons caused by KDG’s “prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment constituting grounds for termination!.]”

¶23. KDG relies on four cases that have rejected termination of parental rights based on this ground. In re V.M.S., 938 So.2d at 834-37 (¶ ¶ 11-17); M.L.B. v. S.L.J., 806 So.2d 1023, 1026-29 (¶ ¶ 8-12) (Miss.2000); Petit v. Holifield, 443 So.2d 874, 877-79 (Miss.1984); and A.C.W. v. J.C.W., 957 So.2d 1042, 1045-46 (¶ ¶ 15-22) (Miss.Ct.App.2007).

¶24. Two of the cases, M.L.B. and Petit, are factually distinguishable from this case. Both involved divorced parents whose children were in the custody of one spouse, who wanted to terminate the rights of the former spouse so that his or her new spouse could adopt the children. M.L.B., 806 So.2d at 1023-24(¶2); Petit, 443 So.2d at 875. And in both cases, the Mississippi Supreme Court reversed termination because it “has never allowed termination of parental rights only because others may be better parents.” M.L.B., 806 So.2d at 1029(¶ 11); Petit, 443 So.2d at 879.

¶ 25. V.M.S. and A.C.W. focused on whether the parents’ actions caused the erosion of the parent-child relationship to the point where the relationship should be severed, determining in both cases their actions did not. V.M.S., 938 So.2d at 837 (¶ 17); A.C.W., 957 So.2d at 1046 (¶20). In V.M.S., the supreme court denied the mother visitation. But, despite not being able to see her daughter, she wrote to her twice a week and sent Christmas presents. V.M.S., 938 So.2d at 837 (¶ 17). Similarly, in A.C.W., the chancery court attributed the father’s failure to see his daughter to the conflict between him and his ex-wife’s family. A.C.W., 957 So.2d at 1044 (¶ 8). The fact the father never missed a child-support payment was further evidence he was willing to fulfill his role as a parent. Id. at 1044 (¶ 7).

¶ 26. Here, the eroded relationships were the result of KDG’s actions. Unlike V.M.S., the youth court provided KDG the opportunity to act as a father to his sons through complying with the permanency order — an opportunity, the youth court found, he totally walked away from. The youth court weighed this along with the fact KDG had been out of jail for over a year and a half prior to the permanency order without making significant efforts to communicate with or support his sons. In adopting the youth court’s findings, we find the chancery court did not err in finding clear and convincing evidence supported termination of parental rights on this ground.

III. Alternatives to Termination

¶ 27. Finally, KDG argues the youth court in its bench opinion “made no indication that it had considered alternative to terminating [KDG’s] parental rights.”

¶ 28. Mississippi Code Annotated section 93-15-103(4) (Rev.2004) does direct:

Legal custody and guardianship by persons other than the parent as well as other permanent alternatives which end the supervision by the Department of Human Services should be considered as alternatives to the termination of parental rights, and these alternatives should be selected when, in the best interest of the child, parental contacts are desirable and it is possible to secure such placement without termination of parental rights.

“However, the paramount concern in determining the proper disposition continues to be the best interest of the child, not reunification of the family.” May v. Harrison County Dep’t of Human Servs., 883 So.2d 74, 81 (¶ 22) (Miss.2004) (citing In re Beggiani, 519 So.2d 1208, 1213 (Miss.1988)).

¶ 29. The youth court found termination was in the best interests of the children. In doing so, it considered KDG’s incarceration and criminal history and his failure to comply with the permanency ordered, entered for his benefit to facilitate reentering his sons’ lives. The chancery court, in adopting the youth court’s finding, expressly stated termination would enable DHS to make a permanent and stable plan for each child’s future and make them eligible for adoption.

¶ 30. We find the chancery court properly considered the best interests of the children when rejecting alternatives to termination. Therefore, we affirm.

¶ 31. THE JUDGMENT OF THE WINSTON COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WINSTON COUNTY.

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

      . The parental rights of KDG II and RCG’s mother was not at issue in this case.


author: ROBERTS, J.,

text:
    Kenneth H. HARRIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01063-COA.
    Court of Appeals of Mississippi.
    Aug. 16, 2011.

      W. Daniel Hinchcliff, attorney for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Kenneth H. Harris was convicted of burglary and sentenced, as a habitual offender, to seven years in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole or probation. Aggrieved, Harris appeals and argues that the Lincoln County Circuit Court erred when it declined to grant his motion for a judgment notwithstanding the verdict (JNOV) because there was insufficient evidence of the “breaking” element of burglary. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Sometime between 9:00 and 9:30 p.m. on August 14, 2009, Alan and Wanda Kent returned to their home in Brookha-ven, Mississippi. As the Kents drove closer to their home, they realized that an unfamiliar car was parked nearby. The trunk and the rear driver’s side door were open, and the car was running. Alan got out of his vehicle, but Wanda remained inside.

¶ 3. Upon closer inspection, Alan noticed that someone was behind his truck, which was parked in the carport. That person, later identified as Harris, quickly ran to his car and drove away. However, Alan memorized Harris’s license plate number, which ultimately led to Harris’s arrest. After calling the Brookhaven Police Department, Alan performed a brief inventory of the storage room attached to the house. Alan noticed that a toolbox had been stolen, and a shelf had been knocked over.

¶ 4. Harris was later indicted for burglary. He pled not guilty, and on May 13, 2010, he went to trial. The prosecution called Detective Nolan Jones of the Brook-haven Police Department as its first witness. Detective Jones testified that after Harris was arrested on August 18, 2009, Harris gave a brief statement. According to Harris’s statement, Harris had stopped at the Kents’ house to steal a weedeater, but he was interrupted before he was able to steal it. Harris denied that he went inside the Kents’ storage room. Harris also denied that he had stolen Alan’s toolbox. However, Detective Jones testified that Harris “stated that he didn’t go into the storage room, but at one point[,] he did state that he couldn’t get the light to come on in there. I don’t know if the door was locked or not on the storage room, but he did make the statement that he couldn’t get the light to come on.”

¶ 5. The prosecution called Alan as its second and final witness. Aside from his testimony regarding the events that led to his brief encounter with Harris, Alan testified that: “we always kept the [storage-room] door shut. There’s times that it may or may not be locked, depending on my wife or I going in and out at the end of the day, but we always keep it shut.” Furthermore, Alan testified that although a shelf had been knocked over and some of the contents had been knocked onto the floor, he could only be certain that his toolbox was missing from the storage room.

¶ 6. Alan elaborated on the status of the light fixture in his storage room. According to Alan, “[t]here’s a flourescent light on the ceiling that works sometimes. I had a short in the light, and sometimes it works and sometimes it doesn’t. We’ve had a lot of trouble with it.” Alan also testified that he was present when Detective Jones interviewed Harris. Alan went on to testify that he “heard [Harris] say something to the effect that he couldn’t see in the [storage] room, [because] it was too dark.” The prosecution rested after Alan had testified.

¶ 7. Harris opted to testify. According to Harris, he stopped at the Kents’ house because he intended to steal a weedeater that was left outside. Harris did not dispute that he was in the Kents’ driveway when they returned home. However, Harris maintained that he “did not go to the storage room.” Furthermore, Harris claimed that he did not even put his hand on the doorknob of the door to the storage room. Specifically, Harris testified as follows:

Well, my plans were, actually, I was looking; looking maybe for something to take. But at the time, I didn’t take anything. I panicked. I got scared when they pulled up, and I, you know, just ran to my car. I didn’t go into their storage room. I didn’t steal anything. I didn’t knock down any shelf that Mr. Kent stated that was on the picture. I didn’t do anything. I didn’t even turn on the light switch as he stated. I didn’t do anything. I just stood right there on the side of that truck and when they pulled up I got in my car, I ran to my car and left. Wasn’t nothing taken, wasn’t nothing moved.

¶ 8. Harris rested after he testified. As previously mentioned, the jury found Harris guilty. During a bifurcated proceeding, the circuit court found that Harris qualified for enhanced sentencing as a habitual offender . pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2007). The circuit court then sentenced Harris to seven years in the custody of the MDOC. Following his unsuccessful post-trial motion for a JNOV, Harris appeals.

STANDARD OF REVIEW

¶ 9. “A motion for a [JNOV] is a challenge to the sufficiency of the evidence.” Gilbert v. State, 934 So.2d 330, 335 (¶ 9) (Miss.Ct.App.2006). As our Mississippi Supreme Court has stated:

in considering whether the evidence is sufficient to sustain a conviction in the face of a motion for ... [a JNOV], the critical inquiry is 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.... [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Should the facts and inferences considered in a challenge to the sufficiency of the evidence point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render.

Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (internal citations and quotations omitted). However, this Court will determine that there was sufficient evidence to sustain the jury’s verdict if the evidence was “of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense.” Id. (internal citations and quotations omitted).

ANALYSIS

¶ 10. Harris claims there is insufficient evidence that he was guilty of burglary. Mississippi Code Annotated section 97-17-33(1) (Rev.2006) provides as follows:

Every person who shall be convicted of breaking and entering, in the day or night, any ... building or private room ... in which any goods, merchandise, equipment or valuable thing shall be kept for use, sale, deposit, or transportation, with intent to steal therein, or to commit any felony ... shall be guilty of burglary, and imprisoned in the penitentiary not more than seven (7) years.

Harris argues that there was insufficient evidence of the “breaking” element of burglary. According to Harris, there was no evidence that he opened the door to the shed. Harris further claims that there was no evidence the door to the shed was shut when the Kents left their home that evening.

¶ 11. To constitute burglary, a “structure must generally be closed. Otherwise the entry is merely a trespass, not a ‘breaking’ and a burglary.” Hill v. State, 929 So.2d 338, 340 (¶5) (Miss.Ct.App.2005). However, “any effort, however slight, such as the turning of a [doorknob] to enter, constitutes a breaking.” Templeton v. State, 725 So.2d 764, 766 (¶ 5) (Miss.1998) (quoting Alford v. State, 656 So.2d 1186, 1190 (Miss.1995)). “Even if the door was unlocked or if only slight force was needed to gain entry, such entry has been viewed as forcible for the purposes of our burglary statute.” Wheeler v. State, 826 So.2d 731, 735 (¶ 12) (Miss.2002).

¶ 12. Alan testified that: “we always kept the [storage-room] door shut. There’s times that it may or may not be locked, depending on my wife or I going in and out at the end of the day, but we always keep it shut.” Moreover, Alan testified that a toolbox was missing after Harris fled. Alan also testified that a shelf inside the storage room had been knocked over. The jury also heard testimony that Harris was not able to turn on a light inside the storage room. That testimony corroborated Alan’s testimony that the flourescent light inside the storage room was malfunctioning at the time.

¶ 13. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found that Harris opened the closed storage-room door, knocked over a shelf, and stole Alan’s toolbox. Consequently, the jury could have found the essential elements of burglary beyond a reasonable doubt. According to the standard of review that applies to questions regarding the sufficiency of the evidence, we are obligated to affirm. We, therefore, find no merit to this issue.

¶ 14. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY AND SENTENCE AS A HABITUAL OFFENDER OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

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


author: IRVING, P.J.,

text:
    Annie BROWN, Appellant v. Kim YATES, Appellee.
    No. 2009-CA-02032-COA.
    Court of Appeals of Mississippi.
    Aug. 16, 2011.
    Richard C. Roberts III, Jackson, David Bridges, Brandon, attorneys for appellant.
    J. Edward Rainer, Gary Lee Williams, Brandon, attorneys for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   IRVING, P.J.,

for the Court.

¶ 1. On October 7, 2003, the Rankin County Chancery Court granted Kim Yates and Thomas Yates a divorce on the ground of irreconcilable differences. The chancery court granted full custody of the couple’s minor child, R.A., to Kim. Thomas was granted supervised visitation, which was to take place at the home of his mother, Annie Brown, every other weekend. Annie was to be in R.A.’s presence at all times during visitation.

¶ 2. On June 26, 2006, Thomas filed a motion for a modification of the visitation schedule, seeking unsupervised, standard visitation. On July 20, 2006, Kim filed a motion to suspend visitation, alleging that Thomas had sexually abused R.A. The chancery court entered a temporary order suspending Thomas’s visitation with R.A. On December 17, 2007, Thomas agreed to have his parental rights terminated.

¶ 3. On October 6, 2008, Annie filed a petition for grandparent visitation. Kim filed her answer and defenses and challenged the constitutionality of the grandparent-visitation statute. The ' chancery court held that the statute was constitutional, but denied visitation. Feeling aggrieved, Annie appeals and argues that the chancery court erred in denying visitation. Additionally, Annie argues that because Kim did not file a cross-appeal on the issue of the grandparent-visitation statute’s constitutionality, she is procedurally barred from raising the issue before this Court.

¶ 4. Because the chancery court failed to grant grandparent visitation despite finding that the Martin factors favored visitation and that visitation was in R.A.’s best interest, we reverse the judgment of the chancery court and remand this case for an award of limited visitation consistent with the chancery court’s Martin-factor analysis and R.A.’s best interest.

FACTS

¶ 5. Following the termination of Thomas’s parental rights, Kim refused to allow R.A. to visit Annie. Kim testified that Annie had failed to comply with the terms of the supervised visitation, which required Annie to remain in R.A.’s presence at all times during visitation. Kim blamed Annie for the alleged sexual abuse suffered by R.A., contending that the abuse would not have occurred but for Annie’s failure to comply fully with the chancery court’s order regarding supervised visitation.

¶ 6. Annie admitted in her testimony that visitation did not always occur in her home. Furthermore, she admitted that on one occasion she had allowed R.A. to ride home alone with Thomas. However, Annie testified that she had never read the divorce decree and that she was not made aware of the terms of the supervised visitation. Annie testified that she did not believe that in supervising visitation, she was to guard R.A. from Thomas. Instead, Annie believed that she was asked to supervise R.A.’s visitation with Thomas because he suffered from depression and had little experience caring for young children.

¶ 7. In 2005, Kim made the initial allegations of sexual abuse against Thomas. Kim testified that R.A. had returned from supervised visitation with bruises on her body. Additionally, R.A. complained of pain on her “bottom.” Kim took R.A. to the Mississippi Child Advocacy Center, where R.A. was interviewed regarding the allegations of abuse. R.A. initially stated that Thomas had touched her breasts and vaginal area, but at the conclusion of the interview, she denied that Thomas had ever touched her inappropriately.

¶ 8. Kim took R.A. to the Child Advocacy Center once more in 2006. According to Kim, R.A. had returned from supervised visitation with Thomas again complaining of pain on her “bottom.” The center conducted a second interview with R.A., where she again denied that her father had touched her inappropriately. The interviewer noted in her report that there was no conclusive evidence of abuse.

¶ 9. The chancery court appointed Dr. Angela Herzog, a psychologist, to determine whether Annie was unfit for visitation and assess whether visitation would adversely impact R.A. Dr. Herzog testified that R.A. expressed a desire to see Annie during Dr. Herzog’s initial interview with R.A. However, when Dr. Herzog approached Kim about allowing R.A. to see Annie, Kim became emotionally distraught. Dr. Herzog further testified that Annie was neither neglectful nor unfit for visitation with R.A., but she admitted that visitation with Annie could be traumatic for R.A. However, Dr. Herzog explained that any trauma would likely stem from Kim’s negative reaction to the visitation — not the renewed relationship with Annie.

¶ 10. Angela Marshall, the guardian ad litem (GAL), also testified that Kim’s negative reaction to an award of grandparent visitation could adversely impact R.A. Marshall further testified that her recommendation to deny Annie’s request for visitation was based on Kim’s promise that “all hell would break loose” if visitation were granted.

¶ 11. In its bench opinion, the chancery court adopted the GAL’s analysis of the Martin factors, with the exception of the GAL’s finding that R.A. lacked an emotional tie to Annie. The GAL found that visitation would cause disruption in R.A.’s life; however, that finding was largely based on Kim’s negative feelings regarding grandparent visitation. The GAL determined that Annie’s home was suitable for visitation, but she expressed concern regarding Annie’s ability to supervise R.A. given her admission that she had left R.A. alone with Thomas on at least one occasion. The GAL found that R.A. was at an age where “she could enjoy meaningful time with her grandmother” and that there was nothing about Annie’s age and physical and mental health that weighed against visitation!

¶ 12. The chancery court disagreed with the GAL’s finding that R.A. lacked an emotional connection with Annie and found that, based on the testimonies of Annie and Dr. Herzog, such a connection existed. With regard to Annie’s moral fitness, the GAL noted that Annie testified at the hearing on Kim’s motion to suspend visitation that she had never left R.A. alone with Thomas during supervised visitation, but Annie later admitted that she had failed to provide adequate supervision of R.A. on at least one occasion. However, other than the discrepancy in Annie’s testimony, the GAL found no other evidence that Annie was morally unfit. The GAL noted that Annie did not live far from R.A. and that Annie’s work schedule was flexible and would not interfere with visitation. Finally, based on the GAL’s interview of Annie, she found nothing to suggest that Annie would undermine Kim’s general discipline of R.A. or interfere with Kim’s decisions regarding R.A.’s upbringing.

¶ 13. The chancery court found that the Martin factors favored visitation with Annie and determined that grandparent visitation was in R.A.’s best interest. However, the chancery court denied visitation because Annie had failed to present “compelling circumstances” that would justify judicial interference with Kim’s parental rights.

¶ 14. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS OF THE ISSUES

¶ 15. Our review of domestic-relations cases is limited to the “substantial evidence/manifest error rule.” R.K. v. J.K., 946 So.2d 764, 772 (¶ 17) (Miss.2007) (citing Mizell v. Mizell, 708 So.2d 55, 59 (¶ 12) (Miss.1998)). As such, an 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. (citing Mizell, 708 So.2d at 59 (¶ 13)).

1. Denial of Grandparent Visitation

¶ 16. Annie argues that the chancery court erred when it denied her visitation, despite finding that the Martin factors favored visitation and that visitation would be in R.A.’s best interest. Additionally, Annie contends that the chancery court erroneously required that she prove “compelling circumstances” before it would order visitation against Kim’s wishes.

1117. The Mississippi Supreme Court has held that “[pjarents with custody have a paramount right to control the environment, physical, social, and emotional, to which their children are exposed.” Stacy v. Ross, 798 So.2d 1275, 1280 (¶ 23) (Miss.2001) (citations omitted). The Stacy court further held that “[interference with that right based upon anything less than compelling circumstances is not the intent of the visitation statute.” Id.

¶ 18. In Stacy, Kenneth and Sue Ross brought an action for grandparent visitation after their grandson’s parents refused to allow visitation. Id. at 1276 (¶ 2). The chancery court granted unsupervised, overnight visitation for one Saturday a month, against the parents’ wishes. Id. at 1281-82 (¶¶ 25-26). Our supreme court reversed the chancery court’s decision, finding that the chancellor had not given appropriate deference to the parents’ wishes. Id. at 1280-81 (¶ 24). The court noted that the chancellor had “never made an express finding that visitation was in [the child’s] best interest....” Id. at 1282 (¶ 27). Additionally, the court-appointed psychiatrist opined that visitation was not in the child’s best interest. Id. at 1281 n. 3. Finally, the court noted that the child’s parents had “been willing to accord some visitation.” Id. at 1282 (¶ 28).

¶ 19. We find the circumstances in Stacy distinguishable from this case. First and foremost, the chancery court in Stacy made no express finding regarding the child’s best interest. Here, the chancery court found that, based on its analysis of the Martin factors, visitation with Annie was in R.A.’s best interest. Second, the parents in Stacy were willing to allow some visitation with their child, and they had no intention of permanently denying visitation. Kim has wholly denied Annie visitation with R.A.

¶20. Furthermore, we find that the chancery court misapplied the compelling-circumstances standard articulated in Stacy. The chancery court reasoned that because Annie had not alleged that Kim was an unfit parent, compelling circumstances did not exist, therefore, visitation could not be awarded against Kim’s wishes. Applying Stacy in this manner frustrates the purpose of the grandparent-visitation statute by allowing parental veto of visitation in all circumstances — except where the custodial parents are unfit. While the chancery court was required to give Kim’s decision regarding grandparent visitation special weight, it was not required to defer automatically to Kim’s decision as a fit custodial parent, especially where the chancellor found that visitation was in R.A.’s best interest. Accordingly, we reverse the chancery court’s denial of grandparent visitation and remand this case for an award of reasonable visitation consistent with the chancery court’s Martin-factor analysis and R.A.’s best interest.

2. Constitutional Challenge

¶ 21. In her brief, Kim challenges the constitutionality of the Grandparents’ Visitation Rights Act, specifically sections 93-16-3(1) and 93-16-5. Kim previously argued that the grandparents’ visitation statute was unconstitutional in her answers and defenses to Annie’s petition requesting visitation; however, Kim did not file a cross-appeal on the issue of constitutionality. Annie asserts that Kim’s failure to file a cross-appeal acts as a procedural bar.

¶22. This Court has previously held that “[i]n order for the appellee to gain reversal of any part of the decision of a trial court about which the appellant brings no complaint, the appellee is required to file a cross-appeal.” Delta Chem. & Petroleum, Inc. v. Citizens Bank of Byhalia, Miss., 790 So.2d 862, 878 (¶ 52) (Miss.Ct.App.2001) (citing Brock v. Han kins Lumber Co., 786 So.2d 1064, 1068 (¶ 19) (Miss.Ct.App.2000)). Our supreme court has also held that an appellee must file a cross-appeal when he “seek[s] to alter or reverse the judgment below.” Dunn v. Dunn, 858 So.2d 1150, 1152 (¶ 8) (Miss.2008).

¶ 23. Because Kim seeks to reverse the chancery court’s finding that sections 93-16-3(1) and 96-16-5 are constitutional, and Annie did not raise the issue on direct appeal, Kim was required to file a cross-appeal. Kim failed to do so; therefore, the issue is not properly before this Court and will not be considered.

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

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

      . To protect the privacy of the minor child and her family, the names of the child and her relatives have been changed.

      . Martin v. Coop, 693 So.2d 912, 916 (Miss.1997).

      . Thomas’s supervised visitation with R.A. began when R.A. was two years old.

      .The Martin factors are as follows:
      1. The amount of disruption that extensive visitation will have on the child’s life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home for extensive lengths of time.
      2. The suitability of the grandparents' home with respect to the amount of supervision received by the child.
      3. The age of the child.
      4. The age, and physical and mental health of the grandparents.
      5. The emotional ties between the grandparents and the grandchild.
      6. The moral fitness of the grandparents.
      7. The distance of the grandparents' home from tíre child's home.
      8. Any undermining of the parent's general discipline of the child.
      9. Employment of the grandparents and the responsibilities associated with that employment.
      10. The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent’s manner of child rearing is not to be interfered with by the grandparents.

        Martin, 693 So.2d at 916.

      . We note that the grandparents in Stacy sought visitation under Mississippi Code Annotated section 93-16-3(2) (Supp.2010), which provides that:
      Any grandparent who is not authorized to petition for visitation rights pursuant to subsection (1) of this section may petition the chancery court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:
      (a) That the grandparent of the child had established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and
      (b) That visitation rights of the grandparent with the child would be in the best interest! 1 of the child.
      Annie seeks visitation pursuant to section 93-16-3(1) which provides that:
      Whenever a court of this state enters a decree or order awarding custody of a minor child to one (1) of the parents of the child or terminating the parental rights of one (1) of the parents of a minor child, or whenever one (1) of the parents of a minor child dies, either parent of the child’s parents may petition the court in which the decree or order was rendered or, in the case of the death of a parent, petition the chancery court in the county in which the child resides, and seek visitation rights with the child.
      Despite proceeding under different sections of the Mississippi Grandparents' Visitation Rights Act, we note that “special weight” must be given to the custodial parents’ wishes under both sections given the United States Supreme Court’s holding in Troxel v. Granville, 530 U.S. 57, 69-70, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

      . Section 93-16-5 (Rev.2004) provides:
      All persons required to be made parties in child custody proceedings or proceedings for the termination of parental rights shall be made parties to any proceeding in which a grandparent of a minor child or children seeks to obtain visitation rights with such minor child or children; and the court may, in its discretion, if it finds that such visitation rights would be in the best interest of the child, grant to a grandparent reasonable visitation rights with the child. Whenever visitation rights are granted to a grandparent, the court may issue such orders as shall be necessary to enforce such rights and may modify or terminate such visitation rights for cause at any time.


text:
    Lionel BARNES Sr., Appellant v. Betty R. Holden BARNES, Appellee Lionel Barnes Sr., Appellant v. Betty R. Holden Barnes, Appellee.
    Nos. 2009-CA-01985-COA, 2009-CA-01056-COA.
    Court of Appeals of Mississippi.
    Aug. 16, 2011.

      William Carl Miller, Biloxi, attorney for appellant.
    David C. Morrison, William Bardwell, attorneys for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. This appeal arises out of the Harrison County Chancery Court’s interpretation of a property-settlement agreement entered into by Lionel Barnes Sr. and Betty R. Holden Barnes as part of their second divorce. The chancery court found that the terms of the agreement entitle Betty to 46.26%, or $54,390.97, of Lionel’s military retirement account. Feeling aggrieved, Lionel appeals and asserts that the chancery court erred in its judgment.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Betty and Lionel first married on July 10, 1976, in New Orleans, Louisiana. Lionel joined the United States Air Force in August 1976. On March 19, 1998, Betty and Lionel divorced. However, a little more than a year and a half later, on January 25, 2000, the parties remarried. This second marriage lasted until June 18, 2004, when Lionel and Betty divorced a second time. In September 2006, Lionel retired from his military service. The chancellor found that, as of that date, Lionel had served 361 months in the military.

¶ 4. As part of their 2004 divorce, Betty and Lionel entered into a property-settlement agreement, which states that Betty and Lionel are each entitled to fifty percent of each other’s retirement accounts as of the time of their divorce. The provision did not provide any further guidance as to what periods of Lionel’s accrual of retirement benefits were subject to division. In February 2009, Betty filed a petition to clarify which portion of Lionel’s retirement benefits would be affected by the property agreement.

¶5. Lionel contends that the provision should be limited to the term of the parties’ second marriage; Betty disagrees. The chancellor found that Betty is entitled to half of the benefits that accrued from the time of Lionel’s entrance into the military in August 1976 until the parties’ 2004 divorce, or 46.26% of his retirement benefits.

¶ 6. It is from that order that Lionel appeals. Additional facts, as necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. The Mississippi Supreme Court has explained the standard of review that appellate courts should apply to property-settlement agreements:

[The Mississippi Supreme] Court historically has recognized that a property[-]settlement agreement “is no different from any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character.” Townsend v. Townsend 859 So.2d 870, 376 [ (¶ 21) ] (Miss.2003) (quoting [Dilling v. Dilling, 734 So.2d 327, 335 (¶ 26) (Miss.Ct.App.1999])). [Mississippi appellate courts use] a three-tiered approach to contract interpretation. Put simply, step one is to look to the four corners of the agreement to attempt to translate a clear understanding of the parties’ intent; only if that intent remains illusive [sic] may a court apply the canons of contract construction or turn to parol evidence. Harris v. Harris, 988 So.2d 376, 378-79 [ (¶ 10) ] (Miss.2008) (citing Tupelo Redev[elopment] Agency v. Abernathy, 913 So.2d 278, 283 [ (¶ 13) ] (Miss.2005)). “It is a question of law for the court to determine whether a contract is ambiguous. In the event of an ambiguity, the subsequent interpretation presents a question of fact for the trier of fact which we review under a substantial evi-denee/manifest error standard.” [Id] at 378 [ (¶ 10) ]. “Where terms of a contract are ambiguous, the contract will be interpreted in a reasonable manner.” Id.

In re Dissolution of Marriage of Wood, 35 So.3d 507, 513 (¶ 9) (Miss.2010).

¶ 8. The agreement at issue here did not limit the time frame of the retirement-account provision in any way. In its entirety, the retirement provision reads:

Husband and Wife agree that both are entitled to 50% of the other’s retirement as of the date of divorce. Husband shall maintain the Survivor’s Benefit Plan with Wife as beneficiary. Wife shall reimburse Husband for the cost of the Survivor’s Benefit Plan. Wife shall maintain the Survivor’s Benefit Plan with Husband as beneficiary. Husband shall reimburse Wife the cost of the Surviv- or’s Benefit Plan.

Furthermore, the parties’ 1998 divorce did not make any provision regarding whether either party would be entitled to the other’s retirement benefits.

¶ 9. In his bench ruling, the chancellor found the following, in pertinent part:

All right. I don’t find that there’s any ambiguity in the language of that property[-]settlement agreement.... The real question is, at the time of the divorce, how many months had Mr. Barnes served in the military, and at the time that he retired, how many months did he have? My calculation, looking at it is, Ms. Barnes is entitled to 50 percent of retirement for 334 months of service over a — divided by 361 months of service, or 46.26 percent of retirement.
I find that the document was drafted by Mr. Barnes’[s] attorney, and it’s to be construed strictly against Mr. Barnes. Mr. Barnes, you may think that that’s somewhat harsh. However, it cuts both ways. That same language will ensure to your benefit with regard to Ms. [Barnes]’s retirement when she retires.

¶ 10. The parties were first married in July 1976, and Lionel began working for the military in August 1976. The parties’ second divorce occurred in June 2004. In short, Lionel accrued 5 months of retirement benefits in 1976 and 6 months of benefits in 2004. Between 1976 and 2004, Lionel worked for 324 months. Combined, that would mean that Lionel accrued benefits for 335 months; with time taken into account for partial months, there were 334 total months of service at the time of the parties’ 2004 divorce. The chancellor then divided that number by 361, which was the total number of months that Lionel served, and halved the result to arrive at 46.26%, which was the percentage of Lionel’s retirement benefits that the chancellor concluded that Betty was entitled to receive.

¶ 11. Given the broad, unlimited language of the divorce agreement, we cannot find that the chancery court erred in its judgment awarding Betty 46.26% of Lionel’s retirement benefits. Lionel’s contention of error is without merit.

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

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

      . In Cause Number 2009-CA-01056, the chancery court determined that Betty was entitled to 46.26% of the retirement account, and in Cause Number 2009-CA-01985, the court determined that that percentage amounts to $54,390.97.

      . The chancery court noted in its judgment that certain documents in the record show that the parties married in 1974.

      . While it is obvious how the chancellor arrived at 334 months, we note that the chancellor’s order stated that Betty and Lionel were married for 334 months of Lionel’s time in the service. However, Betty and Lionel were married for approximately 313 months when the time between their first and second marriages is discounted. Regardless, we find that the language of the agreement was broad enough to support a finding that Betty was entitled to fifty percent of Lionel's retirement benefits that accrued from his entry into the service until the date of their second divorce in 2004.


author: MYERS, J.,

text:
    Carl James CAVINESS, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00758-COA.
    Court of Appeals of Mississippi.
    Aug. 30, 2011.

      Carl James Caviness, appellant, pro se.
    Office of Attorney General by John R. Henry Jr., attorney for appellee.
    Before GRIFFIS, P.J., MYERS and ISHEE, JJ.
   MYERS, J.,

for the Court:

¶ 1. Carl James Caviness appeals from the Harrison County Circuit Court’s denial of his motion for post-conviction relief (PCR). Finding no error, we affirm.

FACTS

¶2. On February 15, 1999, Caviness pleaded guilty to one count of armed robbery and to three counts of simple robbery (one of armed-robbery counts having been reduced). The circuit court sentenced Ca-viness to ten years in the custody of the Mississippi Department of Corrections on the three simple-robbery counts, with each count to run concurrently with one another. The circuit court sentenced Caviness to ten years on the armed-robbery count, with its sentence to run consecutively to the three simple-robbery counts.. The circuit court suspended thirteen of the total twenty years Caviness was ordered to serve, and Caviness was ordered to serve three years of post-release supervision (PRS) upon his release.

¶ 3. After serving seven years of his sentence, Caviness was released on the three years of PRS. Shortly after his release, Caviness violated the terms of his PRS. On August 12, 2005, the circuit court entered an order revoking the thirteen-year suspended portion of Caviness’s February 15,1999 sentence.

¶4. On April 9, 2007, Caviness filed a motion requesting the circuit court to correct an illegal sentence. The circuit court treated Caviness’s motion as a PCR motion and denied the motion without an evidentiary hearing. Caviness thereafter appealed, and this Court, in Caviness v. State, 1 So.3d 917, 920 (¶ 14) (Miss.Ct.App.2008), affirmed the circuit court’s judgment. We found that the circuit court had suspended three years of the simple-robbery sentences and all ten years of the armed-robbery sentence, and Mississippi Code Annotated section 47-7-33 (Rev. 2004) provided the circuit court with the authority to suspend Caviness’s sentences in such a manner. Caviness, 1 So.3d at 919-20 (¶ 12).

¶ 5. On June 10, 2009, Caviness filed another PCR motion again claiming that his sentence was ambiguous and, thus, illegal. He also claimed that: the sentence was contrary to the sentence pronounced at the conclusion of his guilty-plea hearing; his attorney was ineffective; and the plea bargain was breached. Caviness did not challenge the actual revocation of his suspended sentence. The circuit court denied the motion, and this appeal followed.

STANDARD OF REVIEW

¶ 6. “When reviewing the trial court’s decision to deny a PCR motion, we will not disturb the lower court’s factual findings unless they are found to be clearly erroneous.” Amos v. State, 44 So.3d 1058, 1059 (¶ 8) (Miss.Ct.App.2010) (citing Moore v. State, 986 So.2d 928, 932 (¶ 13) (Miss.2008)). We review questions of law de novo. Id.

DISCUSSION

¶ 7. In Caviness, 1 So.3d at 920 (¶¶ 13-14), we addressed and ruled on Ca-viness’s claim that his sentence is ambiguous. Thus, the issue may not be reconsidered here. See, e.g., Boyd v. State, 801 So.2d 691, 694 (¶ 9) (Miss.2001).

¶ 8. As to Caviness’s other claims, Mississippi Code Annotated section 99-39-5(2) (Supp.2010) provides that a motion for post-conviction relief shall be made within three years after the entry of the judgment of conviction. We find that each of these claims could and should have been raised within the three-year period after the entry of Caviness’s conviction in 1999. Accordingly, we hold that each claim is time-barred. Miss.Code Ann. § 99-39-5(2). Therefore, we affirm the circuit court’s judgment.

¶ 9. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


author: WOODALL, Justice.

text:
    Ex parte Hurbert MAIERS and Melissa Maiers. (In re Hurbert Maiers and Melissa Maiers v. Bennie Gibbs).
    1090626.
    Supreme Court of Alabama.
    Aug. 20, 2010.
    Kenneth J. Lay and Tracie Melvin, Legal Services Alabama, Inc., Birmingham, for petitioners.
    L. Jan Laney, Dothan, for respondent.
   WOODALL, Justice.

The Court of Civil Appeals affirmed, without an opinion, the summary judgment entered by the Houston Circuit Court in favor of Bennie Gibbs in the action Gibbs filed against Hurbert Maiers and Melissa Maiers pursuant to the Alabama Uniform Residential Landlord and Tenant Act, § 35-9A-101 et seq., Ala.Code 1975 (“the Act”), which became effective January 1, 2007. Maiers v. Gibbs (No. 2080178, Nov. 20, 2009), 65 So.3d 1043 (Ala.Civ.App.2009) (table). This Court granted certiorari review to consider, in pertinent part, whether a landlord and tenant relationship existed between Gibbs and the Maierses when Gibbs filed his action. See § 35-9A-102(c) (“This chapter shall be construed as applying only to the residential landlord and tenant relationship.”). We reverse and remand.

The legal relationship between Gibbs and the Maierses began in August 2004, when Gibbs, as the seller, and the Maiers-es, as the purchasers, entered into a bond-for-title agreement regarding a residence in Houston County (“the agreement”). The purchase price of the residence was $60,000. The Maierses made payments totaling $10,000 and agreed to pay the balance, along with interest at the rate of 7 percent, in 144 monthly payments of $514.19, the first payment being due on September 5, 2004. The Maierses’ initial occupancy of the residence under the agreement was not subject to the Act. See § 35-9A-122(2), Ala.Code 1975 (generally excluding “occupancy under a contract of sale of a dwelling unit or the property of which it is a part” from the application of the Act).

Paragraph 3 of the agreement provided that if the Maierses failed to pay “any [monthly] installment ] within thirty (30) days after receipt of written notice by [Gibbs] of such default and demand for such payment, then [Gibbs] [would] have the right and option to declare [the agreement] null and void by giving [the Maiers-es] written notice thereof.” In such case, according to paragraph 3, the Maierses would “be deemed tenants of [Gibbs] from the date of execution [of the agreement],” and Gibbs would “have the right to the immediate possession of the property.” Further, with regard to the money paid by the Maierses before any such default and declaration, paragraph 3 provided that it would first be applied to the payment of any interest due and then to certain expenditures that Gibbs may have made. Any “balance [would then] be taken and considered as a reasonable rental for said property.”

For three years, the Maierses paid each monthly installment in full. However, in September 2007, the Maierses tendered to Gibbs only $215, promising to pay the balance of $299.19 later. Gibbs accepted the partial payment. In October 2007, the Maierses tendered $514.19, but Gibbs refused to accept the payment.

On October 25, 2007, Gibbs sent a letter to the Maierses, demanding the amounts due for September and October, a late fee for each of those two months, and an amount to pay an air-conditioner-repair bill on the property. The letter did not include any deadline for payment and did not purport to exercise Gibbs’s option to declare the agreement void. The amounts were not paid.

The next correspondence between Gibbs and the Maierses was a letter dated March 19, 2008, to the Maierses from Gibbs’s attorney. The letter stated that Gibbs had elected to declare the agreement void as of April 1, 2008, based upon the Maierses’ failure to make the installment payments and to pay the related late fees. The letter also demanded that the Maierses surrender possession of the residence before April 1 or else “an eviction proceeding” would be initiated.

After receiving the March 19 letter, the Maierses contacted Gibbs, seeking to resolve the issues surrounding the past-due payments. On April 3, 2008, the Maierses and Gibbs entered into a separate agreement by which the Maierses would be given the opportunity to “cure” the breach of the bond for title. More specifically, in order to pay the past-due amounts and to bring the monthly payments up to date, the Maierses agreed to pay, and Gibbs agreed to accept, three payments of $2,208, the first due by April 7; the second by May 6; and the third by June 6.

The Maierses were unable to make the payment that was due by April 7. On that date, Gibbs filed an action for eviction pursuant to the Act. See § 35-9A-461. Then, on April 16, Hurbert’s mother, who was trying to help the Maierses obtain a mortgage loan, paid Gibbs $900, and Gibbs agreed not to pursue the pending eviction action until May 5, 2008.

The Maierses were unable to obtain a mortgage loan. However, in June 2008, Gibbs accepted an installment payment of $514.19 from the Maierses. Ultimately, the Houston District Court entered a judgment in favor of Gibbs in the amount of $5,598.27, representing “back rent” and late fees. The Maierses appealed to the Houston Circuit Court. By complying with the requirements of § 35-9A-461(d), the Maierses were able to retain possession of the residence during the pendency of the appeal.

Shortly after the case was appealed to the circuit court, Gibbs filed a motion for a partial summary judgment, seeking immediate possession of the residence. Gibbs, who never mentioned the Act in his motion, grounded the motion on paragraph 3 of the agreement. In response, the Mai-erses argued, in pertinent part, that Gibbs had waived any right to terminate the agreement by his acceptance of payments after the Maierses’ default. On November 12, 2008, the circuit court granted Gibbs’s motion, awarding him possession of the residence. The circuit court later certified the partial summary judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. Gibbs appealed from the judgment, and the Court of Civil Appeals affirmed the judgment without an opinion. By continuing to make the payments required by § 35-9A-461(d), the Maierses have retained possession of the residence during the pendency of the appeal.

A summary judgment is proper only where it is “show[n] 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.” Rule 56(c)(3), Ala. R. Civ. P. Thus, “ ‘[i]t has been well said that summary judgment may not substitute for the trial of issues of fact.’” Borom v. Thaggard, 926 So.2d 331, 333 (Ala.2005) (quoting State v. Robinson, 510 So.2d 834, 836 (Ala.Civ.App.1987)).

In seeking to bring his action within the scope of the Act, Gibbs relies upon paragraph 3 of the agreement, arguing that, “[o]n the terms of the contract ... the Maiers[es] defaulted, breaching the contract and as a result, [a] landlord/tenant relationship was created.” Gibbs’s brief, at 20. In response, the Maierses argue, in pertinent part, that “the trier of fact should determine if Gibbs ... waived strict compliance with the terms of the [agreement] through his actions.” The Maierses’ brief, at 54. We agree with the Maierses.

A bond for title “is an installment contract for the sale of land.” Rogers v. Triple S Ventures, Inc., 752 So.2d 1220, 1221 (Ala.Civ.App.1998). In such contracts, “vendors often contractually reserve unto themselves the power to treat the contract as having been rescinded upon a default by the purchaser, and after a rescission may retake possession of the property.” 752 So.2d at 1222 (citing Joel Rebecca Donelson, The Bond for Title: A Modem Look at Alabama’s Land Installment Contract, 46 Ala. L.Rev. 137, 140 (1994)). Also, it is not uncommon for installment contracts for the sale of land to provide that, upon a default by the purchaser, all money paid by the purchaser under the contract shall be taken and held as payment of rent for the property. See Eurton v. Smith, 357 So.2d 324, 326 (Ala.1978). In this case, the agreement contains such a provision. The Maierses and Gibbs refer to such provisions, as do our cases, as “forfeiture provisions.” Eurton, 357 So.2d at 326.

The parties agree that “[t]he authorities establish that forfeiture provisions in lease-sale agreements are not favored.” Killen v. Akin, 519 So.2d 926, 929 (Ala.1988). However, “they will be upheld when the [purchaser] has actual or constructive notice that strict compliance is necessary.” Id. “Prior decisions of this court have long recognized that such forfeiture provisions may be waived by the [seller].” Eurton, 357 So.2d at 326. Also, it is well established that “[w]aiver of strict compliance is a question of fact.” Kitten, 519 So.2d at 929.

Absent a default triggering the forfeiture provisions in paragraph 3 of the agreement, there was no landlord-tenant relationship between Gibbs and the Mai-erses. In such a case, the Act simply would not apply. The Maierses correctly argue that the issue whether Gibbs waived the forfeiture provisions by failing to insist upon strict compliance by the Maierses is a question of fact unsuitable for resolution by summary judgment. Indeed, Gibbs agrees that “a question of fact rather than a matter of law is presented.” Gibbs’s brief, at 22. Although Gibbs argues that “after a review of the record, the trial court and the Court of Civil Appeals could have determined that [he] sufficiently communicated an intent to insist upon strict compliance,” id., a summary judgment may not substitute for the trial of issues of fact.

For these reasons, we reverse the judgment of the Court of Civil Appeals and remand the case to that court for the entry of an order consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and LYONS, STUART, SMITH, BOLIN, PARKER, and SHAW, JJ., concur.

MURDOCK, J., concurs in the result.

      . A bond for title is an installment contract for the sale of land, under which "[t]he seller[] [retains] legal title until the buyer pays the purchase price.” Black’s Law Dictionary 193 (8th ed. 2004).


author: PITTMAN, Judge.

text:
    Hurbert MAIERS and Melissa Maiers v. Bennie GIBBS.
    2080178.
    Court of Civil Appeals of Alabama.
    Feb. 25, 2011.
    Tracie Melvin, Legal Services Alabama, Inc., Dothan, for appellants.
    L. Jan Laney, Dothan, for appellee.
   After Remand from the Alabama Supreme Court

PITTMAN, Judge.

On November 20, 2009, this court affirmed a summary judgment entered by the Houston Circuit Court in an action filed pursuant to Ala.Code 1975, § 35-9A-101 et seq., by Bennie Gibbs against Hurbert Maiers and Melissa Maiers. Maiers v. Gibbs (No. 2080178, November 20, 2009), 65 So.3d 1043 (Ala.Civ.App.2009) (table). However, our judgment of affirmance has been reversed. Ex parte Maiers, 68 So.3d 769 (Ala.2010). On remand to this court, and in compliance with Ex parte Maiers, we now reverse the summary judgment and remand the cause for further proceedings.

REVERSED AND REMANDED.

THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur.