source: Caselaw Access Project

author: MAX N. TOBIAS, JR., Judge. ARMSTRONG, C.J., LOMBARD, J.,

license: Public Domain

text:
    UNITED STATES RISK MANAGEMENT, L.L.C. v. Lee DAY.
    No. 2011-CA-0533.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 2011.
    Rehearing Denied Oct. 24, 2011.

      Lance J. Arnold, Stuart G. Richeson, Baldwin Haspel Burke & Mayer, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Michael P. Bienvenu, Kinchen Walker Bienvenu Bargas & Reed, L.L.C., Baton Rouge, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   MAX N. TOBIAS, JR., Judge.

hThe plaintiff, United States Risk Management, L.L.C. (“US Risk”), appeals the trial court’s granting of a “Motion for Judgment on the Pleadings and/or Motion for Summary Judgment (hereinafter, “the motion”)” in favor of defendant, Lee Day. Having determined that a genuine issue of material fact exists as to the parties’ intent, we reverse the trial court’s granting of the motion and remand the matter to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

This is an action to enforce restrictive covenants in an employment agreement. On or about 1 July 2007, Lee Day was employed by US Risk as a manager in its Baton Rouge office. In conjunction with his employment by US Risk, Mr. Day signed a document entitled Employment Agreement (“Agreement”), which contains the following language in the first paragraph:

This employment agreement (“Agreement”) is entered into by and between Lee Day (“Employee”) and United States Risk Management, LLC [sic] (“Company”) and will be effective as of the date this Agreement is executed by the parties.

li>The Agreement does not contain the handwritten signature of any representative of US Risk, but rather the typed signature of Tracey D. Dodd, a “principal and member” of US Risk. It is undisputed that Mr. Day signed the Agreement by hand, accepted and received the $15,000.00 signing bonus, and remained in the employ of US Risk from July 2007 until his termination in February 2010.

On 10 May 2010, US Risk filed a “Petition for Injunctive Relief,” seeking to enforce the non-competition clause against Mr. Day found in Section 7 of the Agreement. In response, prior to filing an answer, Mr. Day filed the motion asserting that, according to the express language of the Agreement, the non-competition clause contained therein never became effective or unenforceable as a matter of law because US Risk failed to properly execute or sign the Agreement, which expressly states that it will only be effective when it is “executed by the parties.”

Without assigning reasons, on 24 February 2011, the trial court entered judgment granting the motion, dismissing all claims asserted by US Risk against Mr. Day, with prejudice, and ordered each party to bear its or his own costs. From this judgment, US Risk timely appealed, claiming the trial court erred in finding the Agreement unenforceable as a result of US Risk’s failure to affix a handwritten signature to the Agreement and in finding that the non-competition clause violated the time restrictions imposed by La. R.S. 23:921.

| .DISCUSSION

A motion for judgment on the pleadings is a procedural device found in La. C.C.P. art. 965, which provides, in pertinent part: “Any party may move for judgment on the pleadings after the answer is filed,.... ” [Emphasis supplied]. The Code precludes use of a motion for judgment on pleadings when an answer has not been filed. Succession of Harrison, 408 So.2d 362 (La.App. 1st Cir.1981). Mr. Day filed his motion prior to filing his answer. Thus, while Mr. Day’s motion for summary judgment was appropriately filed under La. C.C.P. art. 966 A, Mr. Day’s motion for judgment on the pleadings was not. See Harrison, 408 So.2d at 363. Accordingly, we review the trial court’s judgment as an appeal of the granting of a motion for summary judgment.

An appellate court reviews the granting or denial of a summary judgment de novo. Potter v. First Federal Savings and Loan Association of Scotlandville, 615 So.2d 318, 325 (La.1993).

Our task in this case is to determine whether the Agreement, which expressly states that its effectiveness commences upon its “execution” by both parties, became effective and enforceable when Mr. Day affixed his handwritten signature, but US Risk only affixed the typed name of a “principal.” Undeniably, Louisiana’s public policy disfavors non-competition agreements. “Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, ... shall be null and void.” La. R.S. 23:921(A)(1). However, that statutory prohibition is subject to the exception granted in Section C, which provides, in pertinent part:

[4Any person ... who is employed as an agent, servant, or employee may agree with his employer to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of the employer within a specified parish or parishes, municipality or municipalities, or parts thereof, so long as the employer carries on a like business therein, not to exceed a period of two years from termination of employment.

Prior to its revision in 1989, the non-competition prohibition was embodied in La. Acts 1962, No. 104, which stated that “[n]o employer shall require or direct any employee” to enter into an agreement not to compete. [Emphasis added.] That former language suggested a legislative concern of preventing employers from forcing non-competition agreements as a condition of employment. However, the current statute is couched in permissive terms, suggesting recognition of the competitive realities of the business world.

Regardless of whether the 1989 revision of La. R.S. 23:921 signifies a change in public policy with respect to non-competition agreements, the courts of this state have been consistent in strictly construing such agreements against the party seeking enforcement. SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695, p. 5 (La.6/29/01), 808 So.2d 294, 298; Clear Channel Broadcasting, Inc. v. Brown, 04-0133, p. 4 (La.App. 4 Cir. 3/30/05), 901 So.2d 553, 555-56. The rule of strict construction permeates the arguments of US Risk regarding the effectiveness and enforceability of the non-competition clause in the instant case.

Relying on the Supreme Court’s decision in Rainey v. Entergy Gulf States, Inc., 09-572, (La.3/16/10), 35 So.3d 215, US Risk argues that the typewritten name of its “principal,” Ms. Dodd, was sufficient to constitute the signature of US Risk, indicating its consent to the Agreement and to be bound thereby. Alternatively, US Risk contends that because it prepared the Agreement and | ¿presented it to Mr. Day, who accepted it as evidenced by his handwritten signature, the Agreement became effective and enforceable. Rainey, 09-572, pp. 18-21, 35 So.3d at 227-229.

Contrariwise, Mr. Day argues that the Agreement specifically states that it becomes effective as of the date it is “executed” by both parties and that the term “execute” as used throughout the Agreement contemplates more than the typewritten name of a party. Mr. Day contends that “execute” means each party affixing a handwritten signature to the document and thusly, since the Agreement was never actually signed by a representative from US Risk, it never became effective. Consequently, he argues, the provisions are not enforceable.

The mover for summary judgment must make a prima facie showing of each fact necessary to prove his case; if a prima facie case is made, the burden shifts to the opposing party to raise genuine issues of material fact to preclude the granting of summary judgment. La. C.C.P. art. 966 B. Even assuming in the instant case that Mr. Day correctly established all facts upon which his motion for summary judgment rested, we find he would still not be entitled to summary judgment. The only documents Mr. Day attaches to the motion are a copy of the Agreement and the previously filed affidavits of Ms. Dodd and Thomas Sumner, “principal[s] and | r,manager[s]” of US Risk. The documents relied upon by Mr. Day do not address the gravamen in this case, and that is, whether the parties intended, for the Agreement to take effect only after affixing handwritten signatures to the document. Despite Mr. Day’s contention that US Risk’s handwritten signature was required, US Risk argues that the typed name of its “principal” was sufficient to express the limited liability company’s consent to the Agreement. Presumably, when Mr. Day signed the Agreement on his own behalf, he intended to be bound by its terms. Moreover, it is undisputed that both parties actually performed under the Agreement’s terms. Mr. Day received a $15,000.00 “signing bonus” and worked for the company from July 2007 until February 2010 when he was terminated.

The Agreement does not expressly define “execute” although the term is used throughout the contract. Nonetheless, construing the Agreement as a whole, we find the plain language of the Agreement does not delineate what constitutes “executing” the contract. Black’s Law Dictionary defines an “executed contract” alternatively as “[a] contract that has been fully performed by both parties” or a “signed contract.” BLACK’S LAW DICTIONARY 344 (8th ed.2004). Black’s further notes that “[t]he term ‘executed’ is a slippery word. Its use is to be avoided except when accompanied by explanation ...” Id. at 609 (quoting WILLIAM R. ANSON, PRINCIPLES OF THE LAW OF CONTRACT 26 n.* (Arthur L. Corbin ed., 8d Am. ed.1919)).

While Mr. Day’s supporting memorandum expresses his current position that the term “execute” as used throughout the Agreement meant more than simply ^affixing a typewritten name (arguing that US Risk would not have accepted his typewritten signature), Mr. Day does not provide any evidence, i.e. affidavit or otherwise, suggesting that he did not intend to be bound by the terms of the Agreement, or at least some of them, when he signed the document, or that he did not intend to be bound until a representative from US Risk physically signed as well, especially since Mr. Day performed under the contract for a period of over three years.

In Rainey, supra, the Court, citing LIT-VINOFF, § 12.29; 7 PLAINOL ET RI-PERT, Traite Practique de droit Civil Francais 895 (2d ed.1954), stated that “[w]hen certain circumstances are present, a writing under private signature that contains a bilateral contract signed by only one of the parties may constitute written proof of that contract.” With regard to a bilateral act signed by only one party, Professor Litvinoff explains:

... [T]here is no clearer evidence of the existence of an obligation than its performance, either on its active side through the exercise of a right, or on its passive side through the fulfillment of the corresponding duty. If a party who did thusly perform were allowed to negate that he did so in accordance with a contract that prescribes that performance, on grounds that he did not sign the pertinent writing, then form would prevail over substance at the expense of fairness, and technicalities would excuse bad faith.
The conclusion here discussed is consistent with the French doctrine of commencement de preuve par écrit— commencement of proof in writing — according to which a party who does not sign a writing under private signature is nevertheless held to its terms if he has in any manner intellectually appropriated those terms.
LITVINOFF, § 12.29.

Rainey, pp. 18-19, 35 So.3d at 227.

We find that the term “execute” used in the Agreement does not clearly and unambiguously evidence the parties’ intent. The mover is required to attach documentation supporting his right to judgment. Mr. Day has not attached any supporting documentation asserting that he did not intend to be bound by the Agreement unless or until an authorized representative of US Risk affixed a handwritten signature to the document. Moreover, Mr. Day’s performance under the Agreement suggests that he, in fact, did intend to be bound by at least some of the Agreement, albeit, it is uncertain whether he intended to be bound by the non-competition clause. Nothing properly appears in the record that resolves the intent issue.

Having concluded that a genuine issue of material fact exists to the intent of the parties as to whether handwritten signatures were required in order for the Agreement to become effective or enforceable, we find the motion for summary judgment was improperly granted. This conclusion makes unnecessary and/or premature our consideration of whether the non-competition clause violates the time restrictions imposed by La. R.S. 23:921.

For these reasons, the trial court’s granting of the motion in favor of Lee Day and against United States Risk Management, L.L.C. is reversed and the matter is remanded for further proceedings.

REVERSED AND REMANDED.

ARMSTRONG, C.J., concurs in the result.

LOMBARD, J., concurs.

ARMSTRONG, C.J.,

concurs in the result.

Ill respectfully concur in the result reached by the majority.

LOMBARD, J.,

concurs.

Iil concur. The plaintiff clearly made an offer by submitting the contract to the defendant along with the $15,000 signing bonus. The defendant accepted by his own actions, collecting the $15,000 signing bonus and notarizing his signature to the contract. Accordingly, a valid contract was formed. See La. Civ.Code art. 1927; Rainey v. Entergy Gulf States, Inc., 09-572, p. 18 (La.3/16/10), 35 So.3d 215, 227.

      . The Agreement also contained a two-year non-competition clause effective when Mr. Day's employment with US Risk ended and provided for a $15,000.00 signing bonus.

      . For purposes of this appeal, counsel for US Risk conceded at oral argument that the Agreement does not contain a handwritten signature of any US Risk principal or member with authority to execute the contract.

      . US Risk has not yet requested a trial of the injunction.

      . Mr. Day filed an answer before he filed his motion. On a time-line basis, for purposes of judgment on the pleadings, the motion for judgment on the pleadings was premature.

      . Rainey stands for the proposition that "where a statute requires a signature, a printed or typed ‘signature’ is sufficient provided the signature was authorized and intended to constitute the signature.” [Emphasis supplied.] Id., p. 15, 35 So.3d at 225. The record before us contains no evidence establishing that Ms. Dodd had the authority to bind US Risk to the terms of the Agreement. In its petition, US Risk avers that it is a limited liability company authorized to do business in Louisiana. Nothing in Louisiana’s law pertaining to limited liability companies defines "principal” and what role and/or authority, if any, a "principal” has in a limited liability company. Thus, while Ms. Dodd's typewritten signature appears on the signature page of the Agreement immediately above her "Title” identified as "Principal,” it is unclear from the Agreement as to her authority; and no affidavit is presented attesting as to what authority, if any, she had to bind US Risk. See La. R.S. 12:1311-1314.

      . The affidavits of Ms. Dodd and Mr. Sumner were actually attached to a memorandum filed by US Risk in opposition to an exception of improper venue previously filed by Mr. Day in response to US Risk’s petition.

      . We note that it is implicit in US Risk’s filing of its petition and its opposing of the motion that it intended to be bound by the Agreement.


author: PIERCE, Justice, KITCHENS, Justice,

text:
    BANK OF COMMERCE v. SOUTHGROUP INSURANCE AND FINANCIAL SERVICES, LLC, and Norman F. White, d/b/a Barry & Brewer.
    No. 2010-CA-00622-SCT.
    Supreme Court of Mississippi.
    Sept. 15, 2011.
    Rehearing Denied Nov. 17, 2011.
    H.D. Brock, Charles J. Swayze, Jr., Greenwood, attorneys for appellant.
    David A. Barfield, Steven Lloyd Lacey, Madison, attorneys for appellees.
   PIERCE, Justice,

for the Court:

¶ 1. The Bank of Commerce (“the Bank”) brought an action against Sou-thGroup Insurance and Financial Services, LLC (“SouthGroup”) and Norman F. White, an agent of SouthGroup, for negligent misrepresentations made by White regarding the type of liability insurance coverage they would need to purchase. The trial court granted summary judgment for SouthGroup and White on two grounds: (1) that the Bank’s claims are barred by the statute of limitations; and (2) that the damages sought by the Bank constituted a voluntary payment which may not be recovered under Mississippi’s voluntary payment doctrine. The Bank appealed the trial court’s decision.

STATEMENT OF THE FACTS

¶ 2. The parties stipulated to the following facts:

¶ 3. The policy was purchased on June 20, 2004. Prior to the purchase, the Bank, with then-president Don Case, met with White and Ken Hill, a representative of Fidelity and Deposit Insurance Company, to discuss the Bank’s liability insurance coverage. During the discussion, White advised Case of the availability of entity coverage, however, he did not recommend that the Bank purchase such coverage, based on his belief that the Bank’s officers and directors insurance coverage would be sufficient to protect the Bank.

¶4. After the meeting, and with the Bank’s approval, White solicited bids from various insurance companies. The Bank chose to purchase insurance coverage from the Chubb Group of Insurance Companies (“Chubb”), whose policy was insured through Federal Insurance Company (“the Chubb policy”). The policy was effective from June 20, 2004, through June 20, 2007.

¶ 5. In October of 2004, the Bank was served with six complaints filed in the Leflore County Circuit Court. The complaints alleged that the Bank had made loans financing various residential properties for resale under an illegal scheme.

¶ 6. In a letter dated January 18, 2005, Chubb advised the Bank that it had no entity insurance coverage under the Bank’s current policy. Chubb further stated that it had no obligation either to defend the state-filed lawsuits or to indemnify the Bank for any loss thereunder. The state lawsuits were dismissed voluntarily without prejudice on April 13, 2006.

¶ 7. On July 18, 2005, twenty-three complaints were filed against the Bank, a second bank, and various other parties, alleging violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”). The complaints filed in U.S. federal court subsequently were amended to name Terry Green, an officer of the Bank, as a defendant.

¶ 8. Chubb initially declined to provide a defense for the Bank. However, Chubb subsequently undertook the defense of Green, an insured under the directors and officers coverage of the Chubb policy, and undertook the defense of the Bank in all of the twenty-three federal proceedings, once Green was named as a defendant.

¶ 9. White, on behalf of SouthGroup, forwarded a letter dated January 12, 2006, to Case, in which he acknowledged that he had neither recommended nor advised the Bank to include entity coverage in the Bank’s insurance policy. White based this position on his reasoning that an entity cannot commit an action and that actions must be committed by individuals, thus, naming such an individual would trigger coverage under the policy.

¶ 10. The Bank, by letter from its attorney dated April 12, 2006, made a demand to SouthGroup for indemnification of expenses and any damages awarded in the federal lawsuits that were a result of the Bank not having entity coverage under the Chubb policy. On December 27, 2006, White obtained a loan from Bank in the amount of $56,036.76 secured by White’s personal continuing guaranty. White paid the loan proceeds to the Bank, representing reimbursement of Bank’s expenses, including legal fees incurred by the Bank prior to Chubb assuming the defense of Bank and Green. No release or other settlement document was executed between White and the Bank, and no payment has been made since February 11, 2008, leaving a current balance of $39,895.25.

¶ 11. By letter dated February 8, 2008, SouthGroup and White were provided a status report of the proceedings in federal court by the Bank’s attorney. In the letter, the attorney recommended that Sou-thGroup and White place their errors and omissions insurance carrier on notice of possible exposure in the pending federal litigation.

¶ 12. In a mediation meeting with all of the interested parties, held on March 20, 2008, before the United States magistrate in the pending federal lawsuits, a representative from Chubb announced that a settlement had been reached with the plaintiffs’ attorney of the claims against Green. Chubb then informed the magistrate and other parties that it was withdrawing from the cases and would no longer provide legal-expense coverage for the Bank. The plaintiffs released Green, the Bank’s officer, agent, and employee, from liability.

¶ 13. On March 31, 2008, the mediation proceedings were resumed, during which the Bank agreed to settle all of the twenty-three pending federal lawsuits for a payment of $600,000. At the time of the settlement of the federal lawsuits, the Bank and Chubb also entered into a settlement agreement releasing each other from further liability under the asserted federal RICO claims. In consideration of the mutual releases, Chubb increased its March 20, 2008, settlement offer by $100,000.

¶ 14. Prior to settling the pending lawsuits, the Bank was advised by its lead attorney, F. Ewin Henson, III, that the estimated cost of the trial of the first federal case then set for trial would exceed $1 million. The Bank has, at all times, denied any and all liability for any and all of the allegations of the various complaints filed against it.

¶ 15. The Bank filed this complaint on July 17, 2008, seeking damages of $575,000. The Bank alleged that it had engaged White and SouthGroup to procure liability insurance coverage broad enough to fully protect the Bank and its officers and directors; that, in the course of renewal of the Bank’s liability insurance coverage, White and SouthGroup negligently had misrepresented to the Bank that “entity coverage” was not necessary; that the Bank had relied upon this negligent misrepresentation; and that the Bank thereafter had suffered damages as a direct result of the defendants’ erroneous representations and negligent misrepresentations. The trial-court judge granted the defendants’ Motion for Summary Judgment on May 13, 2010. The Bank has appealed the trial court’s decision.

STATEMENT OF THE ISSUES

I. Whether the Bank’s Claims Are Barred by the Statute of Limitations.

II. Whether the Damages Sought by the Bank Were a Voluntary Payment and May Be Recovered under Mississippi’s Voluntary Payment Doctrine.

ANALYSIS

Standard of Review

¶ 16. This Court applies a de novo standard of review to an appeal from a grant of summary judgment by the trial court. Brown ex. rel. Ford v. J.J. Ferguson Sand & Gravel Co., 858 So.2d 129, 130 (Miss.2003) (citing O’Neal Steel, Inc. v. Millette, 797 So.2d 869, 872 (Miss.2001)). Under Rule 56(c) of the Mississippi Rules of Civil Procedure, summary judgment is allowed only in cases where there is “no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). In conducting a de novo review, the evidence must be viewed in a light most favorable to the nonmoving party, “but, if the evidence shows that the moving party is entitled to a judgment as a matter of law, then ‘summary judgment should forthwith be entered in his favor.’ ” Cockrell v. Pearl River Valley Water Supply Dist., 865 So.2d 357, 360 (Miss.2004) (citing Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993)).

I. Whether the Bank’s Claims Are Barred by the Statute of Limitations.

¶ 17. Under Section 15-1-49(1) and (2) of the Mississippi Code:

(1) all actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.
(2) in actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.

Miss.Code. Ann. § 15 — 1—49(1)(2) (Rev. 2003). In Oaks v. Sellers, this Court applied this section to insurance cases, stating that “the three-year statute of limitations, pursuant to Miss.Code. Ann. § 15-1-49, began to run at the latest” when the insured received written notice from the insurer that his claim was denied. Oaks v. Sellers, 953 So.2d 1077, 1084 (Miss.2007).

¶ 18. In Oaks, Donald Sellers purchased complete insurance coverage from Eddie and Brenda Oaks in July 1993 for his business. Oaks, 953 So.2d at 1078-79. The Oakses, agents for DeSoto Insurance, sold Sellers a business liability policy with coverage of $1 million and an umbrella insurance policy with up to $1 million in coverage. Oaks, 953 So.2d at 1079. Neither policy included coverage for personal liability. Id. On September 28, 1996, Sellers’s son was involved in a ear accident in Tennessee that seriously injured one passenger in the car and killed the passenger’s minor child. Id. At the time of the accident, Sellers’s son was using Sellers’s car and was not acting within the course or scope of Sellers’s business. Id. American States Insurance Company, the company that issued and underwrote Sellers’s insurance policy, sent Sellers written notice on August 26, 1997, denying his claim on the basis that his umbrella insurance policy would not cover his son, as the son was not acting in the course and scope of the business at the time of the accident. Id. Sellers filed an action against the insurance company and the agents who had sold him the policy for failure to procure the requested insurance and failure to adequately explain the coverage. Id. The issue before the Court at that time was when the statute of limitations had begun to run. Oaks, 953 So.2d at 1080. The defendants argued that the statute of limitations began to run on August 26, 1997, when Sellers had received written notice of the denial of his claim. Id. Sellers, on the other hand, argued that the statute of limitations did not begin to run until the date of his actual injury, which he cites as February 16, 2001, the date when the Tennessee Court of Appeals imputed liability to him. Oaks, 953 So.2d at 1081. This Court found that the trial court had erred in granting Sellers’s motion for summary judgment, finding that the statute of limitations began to run when his claim was denied. Therefore, because he filed his claim nearly five years after the statute of limitations had begun to run in August of 1997, his claims against the insurance company and the agents were time-barred. Oaks, 953 So.2d at 1084.

¶ 19. This Court further examined the statute-of-limitations issue in Weathers v. Metropolitan Life Insurance Company. In Weathers, Daniel Ray Weathers purchased a life-insurance policy based on the claims of the agent of Metropolitan Life Insurance Company (“MetLife”) that he would have “vanishing” premiums and would not have to pay the premiums after ten years. Weathers, 14 So.3d 688, 689 (Miss.2009). The agent verbally represented to Weathers that “the policy would become self-sustaining through dividends.” Id. The policy was delivered to Weathers on February 1, 1994. Weathers, 14 So.3d at 689-90. The language of the policy indicated that dividends could be used toward the payment of premiums. Weathers, 14 So.3d at 690. Weathers first became aware that the policy did not contain “vanishing” premiums when he received notice in the mail about a class-action lawsuit against MetLife. Id. Weathers opted out of the class-action suit and filed a separate action against MetLife. Id. Met-Life argued that the statute of limitations began to run when Weathers received his policy. Id. Weathers argued that the statute of limitations was tolled under Section 15-1-67 of the Mississippi Code. Id. See Miss.Code Ann. § 15-1-67 (Rev.2003).

¶ 20. In Weathers, this Court stated that “if an insured is put on notice by the plain language of the policy that the agent’s verbal representations are false, a fraud claim accrues on the date of the sale.” Weathers, 14 So.3d at 693 (citing Stephens v. Equitable Life Assurance Soc’y of the United States, 850 So.2d 78, 84-85 (Miss.2003)). However, “if the plain language of the policy does not clearly contradict the agent’s representations such that the insured is put on notice, a fraud claim accrues when the insured becomes aware of the misrepresentation.” Weathers, 14 So.3d at 694 (citing Stephens, 850 So.2d at 84-85).

¶ 21. In this case, the Bank argues that the statute of limitations did not begin to run until it suffered an actual loss, and that this loss did not occur until March 20, 2008, after the federal RICO claims were settled. The Bank claims that White’s payment of the Bank’s expenses from the state claims and Chubb’s payment of the defense costs in the federal RICO claims tolled the running of the statute of limitations until they ceased such action, and the Bank had an actual cause of action.

¶ 22. This argument is misguided. In Oaks, this Court clearly stated that when Sellers received written notice of the denial of his claim, he was placed “on notice of a possible problem with the procurement and understanding of the terms of his insurance policy” and that the statute of limitations began to run on the date he received the notice. Oaks, 953 So.2d at 1084. Further, in Weathers, this Court stated that, if the insured is not put on notice by the language of the policy, “a fraud claim accrues when the insured becomes aware of the misrepresentation.” Weathers, 14 So.3d at 693. This Court has made it clear, in both Oaks and Weathers, that when an insured becomes aware or is put on notice by his insurance company that there is a possible problem with the insurance policy, the statute of limitations begins to run.

¶ 23. In this case, the statute of limitations began to run on January 18, 2005, when the Bank was notified by Chubb that it did not have entity coverage and that Chubb was under no duty to defend or indemnify the Bank in the pending six state-law complaints. Before the Bank received the letter, it was not clear to the Bank that it would not be covered under the policy. White told the Bank that it did not have entity insurance, but that he felt the Bank would not need entity insurance, based on White’s belief that the officers and directors insurance coverage would be sufficient to cover the Bank. However, the Bank became aware of the misrepresentation of the coverage when it received the letter on January 18, 2005, and the statute of limitations began to run that day. The Bank did not file this cause of action until July 18, 2008, six months after the statute of limitations had run. Therefore, the Bank’s claims are barred by the statute of limitations.

II. Whether the Damages Sought by the Bank Constituted a Voluntary Payment and May Be Recovered under Mississippi’s Voluntary Payment Doctrine.

¶ 24. The first issue is dispositive. Therefore, we need not discuss this issue.

CONCLUSION

¶ 25. The three-year statute of limitations began to run when the Bank first received notice that it did not have entity coverage on January 18, 2005. When the Bank filed its claim against the defendants on July 17, 2008, the statute of limitations already had run, therefore barring the Bank’s claims against the defendants. The summary judgment granted by the Circuit Court of Leflore County is affirmed.

¶ 26. AFFIRMED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, CHANDLER AND KING, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY LAMAR, J.

KITCHENS, Justice,

dissenting:

¶ 27. The majority holds that the statute of limitations began to run when Chubb refused to cover the Bank for the claims brought in state court. However, nothing in the record suggests that the Bank was aware at that time that it would later be sued in federal court on unrelated claims or that the Bank would settle those claims for $600,000. Therefore, I respectfully disagree that the statute of limitations had expired when the Bank filed the present lawsuit. Moreover, because genuine issues of material fact remain as to whether the voluntary payment doctrine is applicable to this case, I would reverse the circuit court’s grant of summary judgment.

¶ 28. Mississippi Code Section 15-1-49 (Rev.2003), the controlling statute, provides that the limitations period does not begin to run until “the cause of such action accrued.” As interpreted by this Court:

[A] cause of action accrues “when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested.” Bullard v. Guardian Life Ins. Co. of Am., 941 So.2d 812, 815 (Miss.2006) (quoting Forman v. Miss. Publishers Corp., 195 Miss. 90, 14 So.2d 344, 346 (1943)). In other words, the statute of limitations “begins to run when all the elements of a tort, or cause of action, are present.” Caves v. Yarbrough, 991 So.2d 142, 147 (Miss.2008). Under Section 15-1-49, “the statute of limitations commences upon discovery of an injury, and discovery is an issue of fact to be decided by a jury when there is a genuine dispute.” Donald v. Amoco Prod. Co., 735 So.2d 161, 167 (Miss.1999).

Weathers v. Metropolitan Life Ins. Co., 14 So.3d 688, 692 (Miss.2009) (emphasis in original). A cause of action cannot accrue until all the traditional elements of a tort are present, that is, duty, breach, causation, and injury. Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1354 (Miss.1990). On January 18, 2005, when Chubb informed the Bank that its insurance policy would not cover a suit against the Bank, the Bank was put on notice that its insurance agent may have breached a duty. However, the federal claims, under which the Bank eventually would suffer the financial injury in question, were not filed for another six months. Because no injury yet existed, the present cause of action could not have accrued on January 18, 2005.

¶ 29. The majority relies on two cases that are easily distinguishable from this one. In Oaks v. Sellers, 953 So.2d 1077, 1078 (Miss.2007), the plaintiff sued his insurance agents, claiming that they negligently represented that the plaintiff had purchased an umbrella policy for both personal and business liabilities. Id. at 1078. However, the agents had procured only an umbrella policy for business liabilities; and, had the plaintiff read his policy, he would have known that he had business insurance only, and no personal coverage. Id. at 1082. In the present case, the Bank’s claim is entirely different; the Bank was fully aware that it did not have entity coverage; thus the Bank’s knowledge of the policy’s contents are not at issue. See Mladineo v. Schmidt, 52 So.3d 1154, 1163 (Miss.2010) (distinguishing between claims based on misrepresentations that would have been clarified by reading the policy and claims based on misrepresentations that a particular type of coverage was not needed).

¶ 30. Moreover, in Oaks, the denial of the insured’s claim that had triggered the statute of limitations caused the injury for which the insured sued. As this Court noted, “Sellers suffered damage when American States denied coverage,” because “American States’s denial of coverage deprived Sellers of legal representation paid by American States.” Id. at 1083. In the present case, Chubb’s January 18, 2005, denial of coverage for the state claims did not deprive the Bank of legal representation in federal court. Indeed, Chubb did provide the Bank legal representation in federal court.

¶ 31. The majority also relies on Weathers, 14 So.3d 688, which again, was based on an entirely different type of claim. In Weathers, the plaintiff sued his life insurance company based on an agent’s alleged misrepresentation that the plaintiff would have to pay premiums for only ten years, after which the premiums would “vanish.” Id. at 689. The trial court granted summary judgment in favor of the insurance company based on the statute of limitations, but this Court reversed, finding that “a genuine issue of material fact exists as to whether [the agent’s] representations conflicted with the plain language of the policy, so as to place Weathers on notice of any alleged misrepresentation or fraud at the time the policy was issued.” Id. at 694. Because of the nature of the claim, the plaintiffs injury, i.e., the premiums paid after the vanishing date, would be ascertainable as soon as the misrepresentation was discovered. In the present case, while the Bank may have been aware of its agent’s misrepresentation when it was sued in state court, the injury on which the present case is based, i.e., the settlement paid in federal court, had yet to materialize. Therefore, I respectfully disagree that the statute of limitations began to run before the Bank had suffered an injury.

¶ 32. Finally, in the alternative, the trial judge found that the “volunteer doctrine” precluded any claims by the Bank because “[tjhere is no indication that the settlement and payment were made by compulsion, fraud, or mistake of fact.” However, the parties stipulated that the Bank had been advised by its lead attorney “that the estimated cost of trial of the first federal case then set for trial would exceed $1,000,000.” Given that the estimated cost to defend one case was almost double the amount for which the Bank settled all twenty-three cases, there is a genuine issue of material fact as to whether the settlement was reasonable and made under compulsion. See Keys v. Rehab. Ctrs., Inc., 574 So.2d 579, 585 (Miss.1990) (jury must determine whether settlement payment for wrongful death claim was under compulsion and reasonable in amount). Because neither the “voluntary payment doctrine” nor the statute of limitations warranted summary judgment, I would reverse the judgment and remand the case for further proceedings.

LAMAR, J., JOINS THIS OPINION IN PART.


author: CHANDLER, Justice,

text:
    Leo WALES v. STATE of Mississippi.
    No. 2010-KA-00473-SCT.
    Supreme Court of Mississippi.
    Sept. 29, 2011.

      Office of Indigent Appeals by Hunter Nolan Aikens, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before DICKINSON, P.J., CHANDLER and KING, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. Leo Wales was tried in absentia for two counts of armed robbery and two counts of aggravated assault. The jury found Wales guilty on all counts, and the Circuit Court of Hinds County, First Judicial District, sentenced Wales for Count I, aggravated assault, to twenty years in the custody of the Mississippi Department of Corrections, to run concurrently with all counts; for Count II, armed robbery, to forty years, to run concurrently with all counts; for Count III, aggravated assault, to twenty years, to run consecutively to Count IV and concurrently with Counts I and II; and for Count IV, armed robbery, to forty years, to run consecutively to Count III and concurrently with Counts I and II. Also, the trial court sentenced Wales to an additional five years on each of the four counts, to run consecutively to all counts, pursuant to the firearm enhancement of Mississippi Code Section 97-37-37(1). Wales’s consecutive and concurrent sentences require him to serve a total of eighty years.

¶ 2. Wales, now incarcerated, appeals. He argues that (1) the trial court erred in trying him in absentia; (2) the evidence was insufficient to support his conviction in Count I, aggravated assault or, alternatively, the verdict of guilty in Count I was against the overwhelming weight of the evidence; and (3) the trial court erred by denying his proffered jury instruction on the specific intent required for armed robbery. This Court affirms Wales’s conviction and sentence, because substantial evidence supported the trial court’s finding that Wales had waived his right to be present at trial, because the evidence was sufficient to support the verdict of guilty in Count I, and that verdict was not against the overwhelming weight of the evidence, and because the jury instructions, taken as a whole, fully and fairly informed the jury of each element of the crime of armed robbery.

FACTS

¶ 3. Tarsha Robinson lived at the Four Seasons Apartments in Jackson, Mississippi. On March 7, 2009, Tarsha was caring for the children of her best friend, Tawan-da Owens. That evening, Owens and Tar-sha’s brother, Michael, drove to Jackson from the Mississippi Delta to pick up Owens’s children from Tarsha’s residence. Michael drove his Jaguar; Owens was in the passenger seat. They parked in front of Tarsha’s building at the Four Seasons Apartments at about 9:30 p.m. Michael noticed two men, one slim and one heavy, walk from behind Tarsha’s building and toward his car. The men wore black hooded sweatshirts. The slim man, later identified as Neil Jackson, approached the passenger’s side. The heavy man, later identified as the defendant, Leo Wales, approached the driver’s side.

¶ 4. Jackson held a gun up to Owens’s window and stated “This is a motherfucking stickup. Get your hands up.” Wales opened Michael’s door, put a gun to Michael’s head, and said “don’t make any false moves.” Jackson opened the passenger-side door and began rummaging in Owens’s purse. Wales told Michael to empty his pockets. Michael testified that he gave Wales $600 from his pocket. Owens testified that Jackson took her purse. Wales stepped back from the car to look at the money. Then, Jackson stated, “this is not all-that’s not all you got.” Michael offered to give the robbers the car, and he begged for his and Owens’s lives. Jackson threatened to “blow [Michael’s] brains out.” Then, Jackson leaned into the passenger side of the car, across Owens, and slapped Michael’s head with his gun. Michael grabbed Jackson’s wrist, and Jackson fired one shot. Michael managed to wrestle the gun away from Jackson.

¶ 5. At that point, Wales fired into the car though the driver’s side window, striking Michael’s nose. Wales fired another shot that struck Michael’s neck. Wales moved to the front of the car and continued firing into the windshield. The bullets struck Michael in the chin, neck, elbow and twice in the arm. In all, he was shot seven times. Despite his wounds, Michael exited the car and fired two shots at the robbers, who ran away. As Wales fled, he fired one shot that struck the Jaguar. A neighbor saw Wales and Jackson drive away in a white and gray Pontiac. Owens picked up her purse, which Jackson had dropped, ran to Tarsha’s apartment, and notified her of the shooting. Tarsha drove Michael to the hospital, where he underwent surgery for his wounds.

¶ 6. The police arrived, canvassed the neighboring areas, and discovered a Pontiac matching the description given by the neighbor parked outside a nearby residence. When officers converged on the residence, they observed two black males who met the robbers’ description in the front yard. The men fled, but were apprehended. When Jackson was arrested, a search of his person revealed $80 and two spent shell casings. A sweaty size 5XL black hoodie was found in Wales’s room. A Taurus .40 caliber semiautomatic gun was found inside a freezer that was located off Wales’s room.

¶ 7. At the trial, Michael identified Wales from a mugshot as the man who had shot him. The police discovered seven shell casings and one live round outside Tarsha’s apartment building. These shell casings were matched to the .40 caliber semiautomatic gun found inside Wales’s freezer. Police also recovered a .38 revolver with four shells and two shell casings from the front passenger seat of the Jaguar. They recovered multiple jacket fragments and projectiles from inside the Jaguar.

¶ 8. The jury found Wales guilty of the armed robbery and aggravated assault of Michael, and of the armed robbery and aggravated assault of Owens.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED BY CONDUCTING THE TRIAL IN WALES’S ABSENCE.

¶ 9. Wales was indicted on July 30, 2009. His trial date initially was set for November 9, 2009, and later adjusted to Monday, November 16, 2009. Wales was released from jail on bond, and he failed to appear for trial on November 16, 2009. His attorney notified the trial court that he had communicated the trial date and time to Wales on two occasions in the previous week. Defense counsel also checked the courthouse for Wales and called the home where Wales lived with his grandmother, to no avail. Wales’s grandmother told defense counsel that, the night before the trial, she had helped Wales iron his clothes for trial, after which Wales had left the house. He told his grandmother that he was going to spend the night elsewhere, but he planned on being in court the next day. His grandmother did not know his present whereabouts. The trial court continued the trial until the next day so that Wales could be located.

¶ 10. The proceedings resumed two days later, on November 18, 2009. Because Wales still had not been located, the prosecutor informed the trial court about the efforts that had been made to find him. The last known contact Wales had made with anyone was with his grandmother on the night before the trial date. Law enforcement agencies in Hinds, Madison, and Rankin Counties and the United States Marshall Service had been involved in the search for Wales. An investigator at the district attorney’s office had contacted all the local hospitals, but no one by the name of Leo Wales had been admitted. Also, the prosecutor had contacted the local jails, but Wales had not been confined in any of them. Wales’s attorney stated that he had informed Wales of the trial date on three or four occasions, and he had no doubt that Wales had known when the case was set for trial.

¶ 11. Applying Mississippi Code Section 99-17-9, the trial court found that Wales had waived his right to be present at the trial and ordered the trial to proceed in his absence. See Miss.Code Ann. § 99-17-9 (Rev.2007). Defense counsel objected to Wales being tried in absentia and requested a continuance. Wales’s counsel argued that Wales would be prejudiced by a trial in absentia, because he would be unable to testify in his own defense. The trial court found that Wales’s intent to avoid trial had been demonstrated by substantial evidence, and the court observed that Wales’s counsel had had two days in which to adjust the defense strategy. The trial court overruled the objection and denied the motion for a continuance.

¶ 12. On appeal, Wales argues that the trial court’s decision to try him in absentia was prejudicial and violated his constitutional right to be present at his trial. A defendant’s right to be present in the courtroom at every stage of his trial is guaranteed by the Sixth Amendment to the United States Constitution. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353, 356 (1970). The Mississippi Constitution also guarantees the right to be present at trial. Miss. Const, art. 3 § 26. However, this constitutional right is not absolute, and it is subject to waiver. Bostic v. State, 531 So.2d 1210, 1213 (Miss.1988). “A waiver of a constitutional right is ordinarily valid only if there is ‘an intentional relinquishment of a known right or privilege.’ ” Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938)). In Taylor v. United States, 414 U.S. 17, 20, 94 S.Ct. 194, 196, 38 L.Ed.2d 174 (1973), the United States Supreme Court held that the defendant’s right of presence at trial may be waived by his voluntary absence.

¶ 13. Mississippi Code Section 99-17-9 codifies our state law regarding trial in absentia. Prior to July 1, 2005, the statute stated:

In criminal cases the presence of the prisoner may be waived, and the trial progress, at the discretion of the court, in his absence, if he be in custody and consenting thereto. If the defendant, in cases less than felony, be on recognizance or bail or have been arrested and escaped, or have been notified by the proper officer of the pendency of the indictment against him, and resisted or fled, or refused to be taken, or be in any way in default for nonappearance, the trial may progress at the discretion of the court, and judgment final and sentence be awarded as though such defendant were personally present in court.

Miss.Code Ann. § 99-17-9 (emphasis added). In Sandoval v. State, 631 So.2d 159, 164 (Miss.1994), this Court recognized that the statute “expresses the legislative intent to limit waiver of trial presence of accused felons to those instances where the accused is ‘in custody and consenting thereto.’ ” However, the Court also recognized the longstanding rule that an accused, present at the commencement of trial, could thereafter waive his further appearance by voluntarily absenting himself from the trial. Id. (citing Samuels v. State, 567 So.2d 843 (Miss.1990) (overruled by Sandoval, 631 So.2d at 164).) In Simmons v. State, 746 So.2d 302, 306 (Miss. 1999), the Court recognized that, after Sandoval, the Court consistently reversed and remanded cases where a felony defendant had been tried in absentia. See Jackson v. State, 689 So.2d 760 (Miss.1997); Villaverde v. State, 673 So.2d 745 (Miss.1996); Banos v. State, 632 So.2d 1305 (Miss.1994).

¶ 14. The Sandoval rule was modified in Jefferson v. State, 807 So.2d 1222, 1227 (Miss.2002). The facts of Jefferson bear substantial similarity to those of the instant case. When Jefferson failed to appear for his trial date, his attorney informed the court that he had made all reasonable efforts to assure Jefferson’s presence at trial. Id. at 1223. Jefferson had been present on the date of arraignment and at the omnibus hearing. Id. His attorney had communicated the trial date by letter seven days before the trial date, and had confirmed it in a telephone conversation with Jefferson six days before the trial date. Id. But on the trial date, Jefferson’s attorney could not locate him. Id. The case was continued for two days, but Jefferson still could not be found. Id, The trial court ruled that Jefferson had waived his right to be present at trial. Id. at 1224. He was tried and convicted in absentia. Id. At a post-trial hearing on Jefferson’s motion for a new trial, a friend of Jefferson’s testified that, before trial, Jefferson had told him he was “going to run.” Id.

¶ 15. On review, this Court noted that its recent trend under Section 99-17-9 was to disallow felony trials in absentia. Id. at 1224. We also recognized the development of another trend, that of criminal defendants who voluntarily absent themselves from trials in order to avoid prosecution. Id. at 1226. Due to that trend, the Court “carve[d] out an exception [to Sandoval) based on willful, voluntary and deliberate actions by a defendant in avoiding trial, such as those presented here.” Id. at 1227. The Court held that Jefferson had voluntarily absented himself from trial and had waived his right to be present at trial because he clearly had been aware of the date of his trial, he had been granted two continuances, and he had expressed a clear intention to avoid trial. Id. The Court also found Jefferson had suffered no prejudice from his willful absence. Id. Finally, the Court recognized that the United States Constitution does not forbid the trial in absentia of a defendant who has not been present at any point during the trial, although Federal Rule of Criminal Procedure 43 does not permit trial in such a case. Id.

¶ 16. The law changed when Section 99-17-9 was amended effective July 1, 2005, to allow the trial in absentia of a defendant in default for nonappearance on felony charges, in the trial court’s discretion:

In criminal cases the presence of the prisoner may be waived (a) if the defendant is in custody and consenting thereto, or (b) is on recognizance or bail, has been arrested and escaped, or has been notified in writing by the proper officer of the pendency of the indictment against him, and resisted or fled, or refused to be taken, or is in any way in default for nonappearance, the trial may progress at the discretion of the court, and judgment made final and sentence awarded as though such defendant were personally present in court.

Miss.Code Ann. § 99-17-9 (Rev.2007). In Jay v. State, 25 So.3d 257, 263-64 (Miss.2009), this Court recognized that, with the 2005 amendment, the Legislature “effectively overruled” Sandoval as it related to trial in absentia of a felony offender. Jay also recognized the continued viability of the Jefferson rule that a defendant who has committed willful, voluntary, and deliberate actions to avoid trial has waived the right to be present at trial and may be tried in absentia. Id. at 264.

¶ 17. The 2005 amendment to Section 99-17-9 placed the decision to try a felony defendant in absentia within the discretion of the trial court. But this discretion necessarily must be limited by the fact that a felony defendant has a constitutional right to be present at trial. U.S. Const, amend. VI; Miss. Const, art 3, § 26. This right is subject to waiver if there is “an intentional relinquishment of a known right or privilege.” Bostic, 531 So.2d at 1213 (quoting Johnson, 304 U.S. at 464, 58 S.Ct. 1019). In Jefferson, this Court held that a defendant’s willful, voluntary, and deliberate actions in avoiding trial constituted a waiver. Jefferson, 807 So.2d at 1227. Section 99-17-9 and Jefferson hold that the trial court’s finding of waiver is subject to appellate review for abuse of discretion. Miss.Code Ann. § 99-17-9; Jefferson, 807 So.2d at 1224.

¶ 18. We hold that the trial court did not abuse its discretion in finding that Wales voluntarily had absented himself from the trial. As in Jefferson, there was absolutely no doubt that Wales knew his trial date. The previous week, Wales had assisted in his defense by consulting with his attorney in anticipation of trial. The night before trial, according to Wales’s grandmother, Wales had left his house and had said he was spending the night elsewhere. Wales did not appear at the courthouse, and the extensive efforts to locate him over a two-day period by the prosecution, the defense, and law enforcement were fruitless. In sum, Wales knew the trial date, did not appear, and could not be located. Wales argues that no direct evidence was before the trial court that his absence was voluntary. Nonetheless, substantial circumstantial evidence was before the trial court demonstrating Wales’s intent to avoid trial. Therefore, the trial court’s finding was not an abuse of discretion. A review of the record shows that Wales received a fair trial and suffered no prejudice from his willful absence. Although Wales, had he been present, may have decided to testify in his own defense, his deliberate absence from his trial operated as a waiver of that right. This Court affirms the trial court’s decision to try Wales in absentia.

II. WHETHER THE EVIDENCE WAS SUFFICIENT TO SUPPORT WALES’S CONVICTION OF COUNT I, THE AGGRAVATED ASSAULT OF OWENS, AND WHETHER THE VERDICT OF GUILTY OF COUNT I WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

A. Sufficiency of the evidence

¶ 19. On review of the sufficiency of the evidence, this Court considers the trial court’s ruling at the last time the sufficiency of the evidence was challenged. Brown v. State, 995 So.2d 698, 701 (Miss.2008). Wales last challenged the sufficiency of the evidence with his motion for a directed verdict, which he made when the State rested its case. The trial court denied the motion. Wales presented no evidence in his defense. On appeal, Wales challenges the sufficiency of the evidence supporting his conviction on Count I, the aggravated assault of Owens. He does not challenge his other convictions on weight or sufficiency grounds.

¶ 20. In reviewing a challenge to the sufficiency of the evidence, this Court determines whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Bush v. State, 895 So.2d 886, 843 (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The evidence will be found sufficient “if a review of the evidence reveals that it is 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. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). But if the facts and inferences, properly considered, “ ‘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.” Id. (quoting Edwards, 469 So.2d at 70).

¶ 21. Under Mississippi Code Section 97-3-7(2)(b), one is guilty of aggravated assault when he “attempts to cause ... bodily injury to another with a deadly weapon....” Miss.Code Ann. § 97-3-7(2) (Rev.2006). Wales admits the evidence was sufficient to show that he and Jackson were armed with deadly weapons. But he argues that the evidence was insufficient to show that he attempted to cause bodily injury to Owens with a deadly weapon because he aimed and fired his gun at Michael, not Owens. In support of this argument, he cites Michael’s testimony that Wales was shooting directly at him.

¶22. We find that the evidence was sufficient to have enabled a rational juror to find Wales guilty of the aggravated assault of Owens beyond a reasonable doubt. “Intent ... ordinarily must be inferred from the acts and conduct of the party and the facts and circumstances attending them.... ” Harris v. State, 642 So.2d 1325, 1326 (Miss.1994). When Wales fired the gun into the car, he first stood at the driver’s side window, and then in front of the car, firing into the windshield. Owens was in the passenger seat. The photographs of the car windshield show four bullet holes distributed across the windshield. While it is impossible to know what actually was in Wales’s mind as he fired the gun, Wales’s intent to shoot Owens reasonably may be inferred from the fact that he fired shots into a car in which Owens was a passenger, and in her direction.

B. Weight of the evidence

¶ 23. Wales challenged the weight of the evidence with his motion for a new trial, which was denied by the trial court. On appeal, he argues that the verdict of guilty of the aggravated assault of Owens was against the overwhelming weight of the evidence. On review of a challenge to the weight of the evidence, this Court will reverse only when the verdict was so contrary to the weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Bush, 895 So.2d at 844. A motion for a new trial should be granted only when the evidence preponderates heavily against the verdict. Id. (quoting Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947 (Miss.2000)).

¶24. The jury found that Wales had attempted to cause serious bodily injury to Owens with a deadly weapon. As previously stated, the evidence supporting the conviction was that Wales had fired his gun into the driver’s side window and windshield of a car while Owens was sitting in the car’s passenger seat. We find that the evidence did not preponderate so heavily against the verdict that the Court’s failure to grant a new trial would sanction an unconscionable injustice. This Court holds that Wales’s challenges to the sufficiency and weight of the evidence concerning Count I, the aggravated assault of Owens, are without merit.

III. WHETHER THE TRIAL COURT ERRED BY DENYING WALES’S PROFFERED JURY INSTRUCTION ON THE SPECIFIC INTENT REQUIRED TO PROVE ARMED ROBBERY.

¶ 25. The trial court gave two jury instructions on armed robbery, one pertaining to the armed robbery of Michael and one pertaining to the armed robbery of Owens. The instructions were identical, except for the names of the victims and the items which Wales took or attempted to take from them. For Owens, the armed-robbery instruction charged the jury to find Wales guilty if it found that he did:

1. willfully, unlawfully, intentionally and feloniously and without authority of law;
2. take or attempt to take a purse
3. the personal property of Terwanda Owens
4. from the presence of and against the will of Terwanda Owens
5. by putting said Terwanda Owens in fear of immediate injury to her person
6. by the exhibition of a handgun, a deadly weapon;....

The jury instruction on the armed robbery of Michael was identical, except that it named Michael as the victim and named money as the property taken or attempted to be taken.

¶ 26. At the jury-instruction conference, Wales requested instruction D-l, which stated:

The Court instructs the jury that armed robbery is a specific intent crime, which requires the State to prove, beyond a reasonable doubt, that the defendant took the personal property of another with the intent to permanently deprive that person of their property.

The trial court denied the instruction on the grounds that it did not set out an element of the offense as described in the armed-robbery statute.

¶ 27. The crime of armed robbery is codified at Mississippi Code Section 97-3-79, and provides, in pertinent part:

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 weapon shall be guilty of robbery....

Miss.Code Ann. § 97-3-79 (Rev.2006). This Court has identified the following essential elements of armed robbery: “(1) a felonious taking or attempt to take, (2) from the person or from the presence, (3) the personal property of another, (4) against his will, (5) by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon.” Bush, 895 So.2d at 843.

¶ 28. Our standard of review of the trial court’s denial of a jury instruction is that “if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results.” Clark v. State, 40 So.3d 531, 544 (Miss.2010) (quoting Davis v. State, 18 So.3d 842, 847 (Miss.2009)). A defendant is entitled to have jury instructions granted that present his theory of the case. Id. Wales argues that, although the language of instruction D-l is not set out in the armed-robbery statute, it is a correct statement of the law, and its denial left the jury inadequately informed of the State’s burden of proof on the armed-robbery counts. Wales argues that an armed-robbery conviction requires a jury finding that the defendant took the property with the specific intent to permanently deprive the owner of the property. He contends that caselaw requires that, in an armed-robbery case, the jury must be instructed that the State has the burden to prove, beyond a reasonable doubt, that the defendant took the personal property of another with the intent to permanently deprive that person of his property.

¶ 29. Wales cites Croft v. State, 992 So.2d 1151 (Miss.2008), in support of his argument that the jury must be instructed that felonious intent is the intent to permanently deprive the victim of his property. Croft argued that the evidence was insufficient to support his armed-robbery conviction, because the evidence showed that, when he took money at gunpoint, he merely was recovering his own gambling proceeds. Id. at 1157-58. Therefore, according to Croft, he lacked felonious intent. Id,, at 1157.

¶ 80. This Court set out the elements of armed robbery under Section 97-3-79. Id. at 1158. Then, the Court stated the following regarding the element of felonious intent:

Robbery is a specific-intent crime; as such, the State is required to prove that the defendant took the personal property of another with the intent to permanently deprive that person of his property. Downs v. State, 962 So.2d 1255, 1259 (Miss.2007). Thus, felonious intent means the intent to steal (animus furan-di). Thomas v. State, 278 So.2d 469, 471 (Miss.1973). The issue of felonious intent is one of fact, and therefore falls within the exclusive province of the jury. Williams v. State, 317 So.2d 425, 427 (Miss.1975) (quoting 67 Am.Jur.2d Robbery § 61, at 63 (1973)).

Id.

¶ 31. The Court stated that the issue of felonious intent is for the jury, and that the specific intent to steal must be proven in robbery cases. Id. at 1159. The Court noted that, in other jurisdictions, a loser in an unlawful gambling transaction who takes gambling proceeds from the winner under an unlawful claim of right is not guilty of robbery. Id. at 1158. But the jury may find that the defendant’s expressed intent to reclaim a debt was a pretext for an intent to steal. Id. at 1158— 59. Because the evidence showed that Croft took more than rightfully belonged to him in the gambling dispute, the evidence was sufficient to sustain Croft’s conviction of armed robbery. Id. at 1160.

¶ 32. Although Croft discussed the requirement that the State must prove the element of felonious intent, it did not address whether or when the jury must be instructed that felonious intent is the intent to deprive the person permanently of his or her property. Three cases establish that such an instruction is required only when the evidence has raised an issue as to whether the defendant had the intent to permanently deprive the person of his or her property. In Thomas v. State, 278 So.2d 469, 470 (Miss.1973), the defendant was convicted of armed robbery for having taken police officers’ guns and police car during his escape attempt. Thomas argued the jury had been instructed inadequately on the specific intent required for armed robbery. The jury instructions set out the element of intent as “unlawfully and feloniously take, steal, and carry away.” Id. at 471. The Court stated that specific intent to steal must be proven in robbery cases, and that, in larceny cases, a taking with the intent to return the property to its owner is not larceny. Id. at 472. The Court held that the evidence supporting Thomas’s robbery conviction was sparse, and that the jury instructions had not placed the element of intent before the jury. Id. at 473. The Court stated, “[w]e think that it was a jury issue as to whether or not the appellant took the property here involved from the policemen for the purpose of permanently depriving the owners of their property or whether or not he took the property with no intention of permanently depriving the owner of its possession.” The Court also quoted the following from the North Carolina Supreme Court’s holding in State v. Mundy, 265 N.C. 528, 144 S.E.2d 572 (1965):

A taking of personal property with felonious intent is an essential element of the offense of armed robbery, of attempt to commit armed robbery, and of common law robbery. The court must so instruct the jury in every robbery case, and must in some sufficient form explain and define the term “felonious intent.” The extent of the definition required depends upon the evidence in the particular case. In some cases, as where the defense is an alibi or the evidence develops no direct issue or contention that the taking was under a bona fide claim of right or was without any intent to steal, “felonious intent” may be simply defined as an “intent to rob” or “intent to steal. On the other hand, where the evidence raises a direct issue as to the intent and pmpose of the taking, a more comprehensive definition is required.

Id. at 574 (citations omitted) (emphasis added).

¶ 33. The Court distinguished Thomas in Lannom v. State, 464 So.2d 492 (Miss.1985). Like Thomas, Lannom argued that the trial court improperly had failed to instruct the jury that the taking of the property was done with the intent to steal. Id. at 495. The Court disagreed, stating:

In Thomas, there was a real question of whether the defendant had the intent to permanently deprive the owner of his property since the defendant had taken a police car and the policeman’s gun during an escape attempt. Thomas is clearly distinguishable in that here there was no uncertainty that Lannom intend- ■ ed to permanently deprive Britt of the drugs and money taken on the night of the robbery.

Id. The Court also held that the words “rob” or “robbery” have well-defined meanings that include an intent to steal. Id. at 496. The Court found that the argument was without merit, and, alternatively, that it was procedurally barred because Lannom had failed to request a jury instruction on intent. Id.

¶ 34. The Court again discussed Thomas in Williams v. State, 590 So.2d 1374 (Miss.1991). Williams was charged with the armed robbery of a firearm he took from a police officer during a confrontation. Id. at 1379. Williams argued that he had disarmed the officer because he was in fear for his life, and that he had intended to keep the gun for only a short time until “things had cooled down.” Id. Thus, his defense was that he had lacked the intent to permanently deprive the officer of his firearm. Id. Upon Williams’s challenge to the jury instructions, this Court held that the jury had been instructed properly on felonious intent by three jury instructions that required the State to prove that Williams had taken the gun with the specific intent to steal and to permanently deprive the owner , of his property. Id. at 1380. The Court distinguished Thomas, holding that “when the issue is raised as to the intent and purpose of the taking, a more comprehensive definition [of felonious intent] is required.” Id. at 1381.

¶ 35. Under Thomas, Lan-nom, and Williams, a jury instruction defining felonious intent as the intent to deprive the victim permanently of his or her property is necessary only when there is an issue as to whether the defendant had the intent to permanently deprive the victim of his or her property. As in Lannom, in this case, there was “no uncertainty that [Wales] intended to permanently deprive” the victims of their personal property. See Lannom, 464 So.2d at 495. Wales’s defense theory did not call into question his intent in taking the property. The jury instructions charged that the jury could convict Wales if it found he did willfully, unlawfully, intentionally and felo-niously take or attempt to take the property of Michael and Owens. The jury instructions adequately instructed the jury on the element of felonious intent, and this issue is without merit.

CONCLUSION

¶ 36. This Court affirms Wales’s conviction and sentence. We hold that substantial evidence supported the trial court’s finding that Wales had waived his right to be present at trial, the evidence was sufficient to support the verdict of guilty in Count I and that verdict was not against the overwhelming weight of the evidence, and the jury instructions, taken as a whole, fully and fairly informed the jury of each element of the crime of armed robbery.

¶ 37. COUNT I: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY-FIVE (25) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF ARMED ROBBERY AND SENTENCE OF FORTY-FIVE (45) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY-FIVE (25) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT IV: CONVICTION OF ARMED ROBBERY AND SENTENCE OF FORTY-FIVE (45) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. IN COUNT I: TWENTY (20) YEARS OF THE SENTENCE SHALL RUN CONCURRENTLY WITH ALL COUNTS, AND FIVE (5) YEARS SHALL RUN CONSECUTIVELY TO ALL COUNTS. IN COUNT II: FORTY (40) YEARS OF THE SENTENCE SHALL RUN CONCURRENTLY WITH ALL COUNTS, AND FIVE (5) YEARS SHALL RUN CONSECUTIVELY TO ALL COUNTS. IN COUNT III: TWENTY (20) YEARS OF THE SENTENCE SHALL RUN CONSECUTIVELY TO COUNT IV AND CONCURRENTLY WITH COUNTS I AND II, AND FIVE (5) YEARS SHALL RUN CONSECUTIVELY TO ALL COUNTS. IN COUNT IV: FORTY (40) YEARS OF THE SENTENCE SHALL RUN CONSECUTIVELY TO COUNT III AND CONCURRENTLY WITH COUNTS I AND II, AND FIVE (5) YEARS SHALL RUN CONSECUTIVELY TO ALL COUNTS.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS, PIERCE AND KING, JJ„ CONCUR.

      . Mississippi Code Section 97-37-37(1) states:
      Except to the extent that a greater minimum sentence is otherwise provided by any other provision of law, any 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.
      Miss.Code Ann. § 97-37-37(1) (Supp.2011).


author: DICKINSON, Presiding Justice,

text:
    Algernon WILLIAMS v. STATE of Mississippi.
    No. 2010-KA-00625-SCT.
    Supreme Court of Mississippi.
    Oct. 20, 2011.

      Office of Indigent appeals by Erin E. Pridgen, Leslie S. Lee, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, Scott Stuart, attorneys for appel-lee.
    Before DICKINSON, P.J., CHANDLER and KING, JJ.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. Algernon Williams was convicted of shooting into a dwelling, when ballistics testing revealed that the shots were fired from a gun he had admitted owning, which was in his possession during the time of the shooting. He claims he received ineffective assistance of counsel, but the presented issues are not based on facts fully apparent from the record. Therefore, the claims are more appropriate for post-conviction-relief petitions, and we dismiss both of Williams’s claims without prejudice.

FACTS AND HISTORY

¶ 2. Around 5:00 a.m. on February 22, 2009, someone fired several shots into the house where Carolyn Wells lived with her three sons: Damon Brown, Charlie Brown Jr., and Anthony Wells. Bullets and shell casings were recovered from the scene, and Damon — who had returned home in a car belonging to his girlfriend, Markeisha Stelivan, thirty minutes before the shooting — indicated that he believed Algernon Williams had been the shooter, because Williams had dated Stelivan before Damon had.

¶ 3. Officers went to interview Williams at the home of his then-girlfriend, Nesha Brown. After a search of the house and a nearby SUV, police found a box of ammunition and a gun in the SUV, and an unused round in Williams’s pocket, all of the same caliber as the rounds found at the Wells home. Forensic testing revealed that Williams had gunshot residue on his hand, and that the casings and projectiles found at the Wells home had been fired from the gun found in the SUV.

¶ 4. Williams admitted to investigators that the gun was his; that it had never left his possession that night (including during the time of the shooting); and that no one else could have gotten it from him. Williams admitted that he had fired the weapon earlier that night at an old church, but denied having shot into the Wells home. Subsequent investigation revealed that the church Williams described had burned to the ground at least a week before the shooting.

¶ 5. The defense’s theory was that the shooting could have been committed by Tina Brown, who was the mother of Nesha Brown. Tina was then in a relationship with Charlie Brown Sr., the father of Damon Brown and former boyfriend of Carolyn Wells. So, whereas the State’s theory was that a love triangle between Williams, Markeisha Stelivan, and Damon Brown had prompted Williams to shoot into Damon’s home in jealousy, the defense’s theory was that a love triangle between Tina Brown, Charlie Brown, Sr., and Carolyn Wells had prompted Tina Brown to shoot into Carolyn’s home in jealousy.

¶ 6. It appears from the record that the defense developed this theory during trial, as neither side subpoenaed Charlie Brown, Sr., until the second day of trial, and he was not on either side’s witness list. The State claimed it had not even heard the name “Charlie Brown” until the beginning of the trial, but was able to serve him with process during the first day of trial. But after speaking with Brown on the telephone and determining that he did not have any relevant evidence, and that he was with his wife — who has having surgery in Jackson — the prosecutor released Brown from his subpoena. The defense was not able to locate Brown to serve him with process and did not speak with him at any point.

¶ 7. At the close of the State’s evidence, the defense moved for a directed verdict, which the court denied. The defense then requested a continuance for the purpose of locating and securing the presence of Charlie Brown, Sr., who was to be the defense’s only witness. According to one of the defense attorneys, Williams had informed him after trial had started that the SUV in which some of the ammunition was found was owned by Charlie Brown, Sr., who had purchased it for Tina Brown.

¶ 8. The court denied the continuance, but allowed the defense to make a proffer, in which the defense suggested that Brown Sr. would testify that at the time of the shooting, he was in a romantic relationship with Tina Brown, and that he had bought for Tina the SUV in which the gun was found. The defense explained that this would lead to the inference “that women who have gotten the same lover have often had problems between each other, and it’s reasonable that [Tina] could have shot the house up.”

¶ 9. Despite denying the continuance, the court permitted the defense to make an opening statement in which Williams’s attorney stated: “Charlie Brown is expected to testify and will show that ... he was involved in a romantic relationship with Tina Brown at the time this took place and, in fact, purchased the vehicle that the gun was found in for Tina Brown.” The defense called Brown and then rested when the bailiff was unable to locate Brown. The jury returned a guilty verdict.

¶ 10. At the sentencing hearing, Williams’s two attorneys moved to withdraw from the case, saying that “there exists no trust between our client and ... Mr. Vance and myself, and at this point I think that it’s incumbent on us to ask to be relieved.” Williams’s attorneys acknowledged that “if [Williams] chooses to perfect an appeal, ... there’s a notice — a request for a new trial and ... judgment notwithstanding the verdict” that needed to be filed. The judge denied the motion to withdraw and sentenced Williams.

ISSUE

¶ 11. The only issue raised on appeal is whether Williams’s trial attorneys rendered ineffective assistance in violation of his Sixth Amendment right to counsel by failing to file any post-trial motions or by failing to adequately investigate and subpoena Charlie Brown — the defense’s only proposed witness — sooner.

ANALYSIS

¶ 12. Ineffective-assistance claims are analyzed under the two-pronged test announced in Strickland v. Washington.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must prove that his attorney’s performance was deficient, and that the deficiency was so substantial as to deprive the defendant of a fair trial. This Court looks at the totality of circumstances to determine whether counsel’s efforts were both deficient and prejudicial. “Judicial scrutiny of counsel’s performance [is] highly deferential.” There is a strong but rebuttable presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Only where it is reasonably probable that but for the attorney’s errors, the outcome of the trial would have been different, will we find that counsel’s performance was deficient.

¶ 18. Ineffective-assistance claims generally are reserved for petitions for post-conviction relief because they often rely on materials outside the appellate record. But this Court will consider an ineffective-assistance claim on direct appeal “if the presented issues are based on facts fully apparent from the record.”

Insufficient Investigation into Charlie Brown

¶ 14. Williams claims that his trial attorneys rendered deficient performance because “they failed to timely subpoena Charlie Brown, Williams[’s] only defense witness,” who “would have established that it was reasonable that Tina Brown shot up Carolyn Wells’[s] house because they were women that had both been in a romantic relationship with Charlie Brown.”

¶ 15. Because neither defense attorney spoke with Charlie Brown, Sr., before the conclusion of trial, the defense’s proffer concerning his expected testimony came entirely from what Williams had told them. Consequently, this argument is not properly before us. And because this claim cannot be analyzed “on facts fully apparent from the record,” this claim is dismissed without prejudice.

Failure to File Post-Trial Motions

¶ 16. Williams’s second argument is that his trial attorneys rendered ineffective assistance by “failfing] to file any post-trial motions on Williams’[s] behalf,” which “deprived Williams of the opportunity to effectively preserve his record for appeal.” The State argues that Williams’s attorneys did file post-trial motions, pointing to the following excerpts from Williams’s “notice of appeal” and “designation of record,” respectively:

4. A Motion by trial counsel for a Judgment Notwithstanding the Verdict or, in the alternative, for a new trial was denied on the record by the [c]ourt on April 2, 2010.
and
NOTICE is hereby given ... that Al-gernon Williams has taken an appeal to the Supreme Court of Mississippi from the Final Judgment dated April 5, 2010, and the decision of the Circuit Court of Warren County, Mississippi, overruling the Defendant’s Motion for New Trial or Judgment Notwithstanding the Verdict dated April 2, 2010 and filed ore tenus.

¶ 17. But the transcript of the sentencing hearing — which was conducted on April 2, 2010 — contains no indication that either of Williams’s attorneys moved ore tenus for judgment notwithstanding the verdict (JNOV) or for a new trial. To the contrary, the transcript clearly indicates that Williams’s attorneys had not filed any such motions by that point. The record is likewise devoid of any rulings on such post-trial motions. The State’s position essentially is that it must have happened because trial counsel said it happened.-

¶ 18. The record contains no indication that Williams’s attorney made — or that the trial judge ruled on — any post-trial motions for JNOV or new trial. But even assuming this constitutes objectively-deficient performance, Williams still must show that but for such deficient performance, the outcome at trial probably would have been different.

¶ 19. Williams cites this Court’s opinion in Holland v. State, and the Court of Appeals’ opinion in Johnson v. State, for the proposition that “trial counsel’s failure to file the requisite post-trial motions amounted to ineffective assistance of counsel.” In Holland, the defense attorney moved for directed verdict at the close of the State’s case, but failed to renew his motion at the conclusion of trial, to request a peremptory instruction, or to move for JNOV. This Court found that there was insufficient evidence to support the conviction, but that the defendant was procedurally barred from raising insufficiency on appeal because his attorney had failed to raise it at trial:

Counsel’s failure to move for a directed verdict or request a peremptory instruction, or even file a single post-trial motion deprived the trial judge of the opportunity to review the evidence and reexamine possible errors at trial.... In light of the fact that counsel’s strategy was to admit guilt to possession while arguing that the evidence was not sufficient to prove intent to distribute, counsel was deficient by failing to preserve any objection relating to the sufficiency or weight of the evidence. This deficiency was intensified by the resulting failure to preserve critical error on appeal.

¶ 20. But Holland is distinguishable from today’s case, because this Court’s finding in Holland that the evidence was insufficient established the second prong of the Strickland test, which requires the defendant to show that, but for his attorney’s objectively deficient performance, the outcome of the trial probably would have been different. In other words, in a case where the evidence was insufficient, the outcome of trial probably would have been different, had counsel put the issue before the court.

¶ 21. But here, Williams’s only argument is that a motion for a new trial would have given the trial judge an opportunity to review his denial of Williams’s request for a continuance. Williams offers nothing to suggest that, had his attorneys moved for a new trial and argued the continuance issue again, the trial judge probably would have granted the motion.

¶ 22. After the State’s case in chief, the parties had an extended conversation with the trial judge in which Williams’s attorneys strongly argued for a continuance, even after the judge denied the request. At one point, the judge even said, “I’ve denied the request for continuance, and I’m not changing my mind about that part of it.” Then, after the State objected to the defense’s mention of Charlie Brown in its opening remarks, the defense again reminded the judge — twice—that it had requested a continuance to secure Brown’s presence.

¶ 23. There is nothing in the record to suggest that, had Williams’s attorneys moved for one, the judge likely would have ordered a new trial for his failure to grant a continuance. Moreover, Williams does not even argue that the trial court erred by failing to grant the continuance. So, even assuming that counsel was objectively deficient for failing to make any post-trial motions, Williams has not satisfied the second prong of Strickland,

CONCLUSION

¶ 24. Williams has not shown that he was denied his Sixth-Amendment right to effective assistance of counsel. He makes no argument challenging the weight or sufficiency of the evidence. There is no reason to believe the outcome of this case would have been any different, had Williams’s attorneys filed the post-trial motions at issue. Finally, Williams’s argument that his attorneys did not conduct adequate investigation is not properly before us, as it requires the examination of evidence outside the record. We therefore find that Williams’s claims that are properly before us are without merit, and we affirm.

¶ 25. CONVICTION OF SHOOTING INTO AN OCCUPIED DWELLING AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH EIGHT (8) YEARS TO SERVE, TWO (2) YEARS SUSPENDED AND TWO (2) YEARS POST RELEASE SUPERVISION. APPELLANT SHALL PAY A FINE OF FIVE (5) THOUSAND DOLLARS WITH TWO (2) THOUSAND SUSPENDED, WITH CONDITIONS, AFFIRMED.

WALLER, C.J., CARLSON, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR. RANDOLPH, J., CONCURS IN RESULT ONLY.

      . Nesha Brown is not related to Damon Brown, Charlie Brown, Sr., or Charlie Brown, Jr.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

      . Parker v. State, 30 So.3d 1222, 1233 (Miss.2010) (quoting Strickland, 466 U.S. at 687-696, 104 S.Ct. 2052) (internal citations omitted).

      . Parker, 30 So.3d at 1232 (citing Archer v. State, 986 So.2d 951, 955 (Miss.2008)).

        .Parker, 30 So.3d at 1232 (citing Archer, 986 So.2d at 955; Wilcher v. State, 863 So.2d 776, 825 (Miss.2003); M.R.A.P. 22(b)).

      . Holland v. State, 656 So.2d 1192 (Miss.1995).

      . Johnson v. State, 876 So.2d 387 (Miss.Ct.App.2003).

      . Holland, 656 So.2d at 1197.

      . Id. at 1197-98 (internal citations omitted).

      . See Parker, 30 So.3d at 1235 (distinguishing Holland and finding no ineffective assistance because there was "no reasonable probability” that the trial judge would have granted any post-trial motions if made).