author: CARLTON, J.,

text:
    Sarah B. HICKS, L.T. Hicks, Martha Jo Hale, William M. Evans, Robert D. Childers and Ray D. Spencer, Appellants, v. NORTH AMERICAN COMPANY FOR LIFE AND HEALTH INSURANCE and Cliff N. Hancock d/b/a Hancock Insurance Agency, Appellees.
    No. 2008-CA-01364-COA.
    Court of Appeals of Mississippi.
    Jan. 5, 2010.
    Rehearing Denied July 20, 2010.
    Certiorari Denied Nov. 10, 2010.

      Bo Russell, Brian Carter Smith, Robert W. Bradford, William F. Ray, Jackson, Wilton V. Byars, Oxford, Attorneys for Appellees.
    Before KING, C.J., IRVING and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. This appeal arises from an order granting summary judgment in favor of appellees/defendants North American Company for Life and Health Insurance (North American) and Cliff Hancock d/b/a Hancock Insurance Agency (Hancock). The Benton County Circuit Court found that the six policy holders’/plaintiffs’/appellants’ (the Appellants) claims were barred by Mississippi’s three-year statute of limitations. Finding ambiguity in five of the policies, and error with the trial court’s grant of summary judgment as to the policies of Sarah Hicks, L.T. Hicks, William Evans, Robert Childers, and Ray Spencer, we reverse and remand. However, we affirm the trial court’s grant of summary judgment with respect to Martha Jo Hale’s policy.

FACTS

¶ 2. The underlying complaint in this case was filed on behalf of six Appellants who purchased universal life insurance policies from North American through Hancock, the insurance agent. The Appellants contend that Hancock sold them universal life insurance policies with terms that differed from the coverage Hancock verbally assured them they were buying. Universal life insurance constitutes a flexible insurance product that differs from whole life and term life. Universal life provides a flexible death benefit. It also can build a cash value at a lower cost than whole life, and over time that cash value grows tax deferred in accordance with applicable interest rates. Additionally, the insured maintains the ability to borrow from the cash value or withdraw from the cash value. However, such loans or withdrawals reduce the death benefit.

¶ 3. The Appellants allege the following causes of action: fraud, intentional misrepresentation, fraudulent concealment, fraudulent inducement, civil conspiracy, breach of obligations of good faith and fair dealing, negligent misrepresentation, breach of fiduciary and quasi-fiduciary obligations, negligence and/or gross negligence, and tortious breach of contract.

¶ 4. All of the Appellants, with the exception of Hale, purchased their policies in late 1992 and early 1993. Hale purchased her policy in 1998. The Appellants claim that Hancock told them their insurance premiums would remain the same throughout the life of the insurance policies, and that if they paid the policy premiums, the policies would remain in effect until their death. Evans contends that when he received a letter advising him that the policy premiums had increased, he realized that the policy Hancock had sold him was not the policy Hancock initially represented to him. Evans contacted Hancock to inquire about the discrepancy. When Hancock refused to provide an answer about the policy increase, Evans initiated the present suit. The Appellants filed their complaint on August 31, 2004.

¶ 5. North American and Hancock filed separate motions for summary judgment as to each of the Appellants’ claims. North American and Hancock argue that each of the Appellants’ claims are barred by the three-year statute of limitations set forth in Mississippi Code Annotated section 15-1-49 (Rev.2003). Further, they argue that the Appellants provided no evidence of any fraudulent concealment which would toll the statute of limitations, and that no fiduciary relationship existed between Hancock and the Appellants.

¶ 6. In response, the Appellants argue that they filed their complaint within the statute of limitations. They claim that they had no reason to suspect that they had been deceived until 2004, when they either received letters from North American notifying them that their premiums were increasing or received information from their attorney, Mike Greer, explaining the potential problems with their insurance policies. They promptly filed suit upon learning of these problems.

¶ 7. The circuit court granted summary judgment in favor of North American and Hancock and dismissed the Appellants’ complaint with prejudice. The Appellants now appeal, asserting that they filed their claims within the statute-of-limitations period, and that genuine issues of material fact exist with regard to their fraudulent concealment and breach of fiduciary duty claims.

STANDARD OF REVIEW

¶ 8. We apply a de novo standard of review to a grant of summary judgment by the trial court. Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002(¶7) (Miss.2001). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). “The evidence must be viewed in the light most favorable to the party against whom the motion has been made.” Northern Elec. Co. v. Phillips, 660 So.2d 1278, 1281 (Miss.1995).

¶ 9. “The burden of demonstrating that no genuine issue of fact exists is on the moving party.” Lewallen v. Slawson, 822 So.2d 236, 238(¶ 6) (Miss.2002) (citation omitted). “The presence of fact issues in the record does not per se entitle a party to avoid summary judgment.” Id. “The existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact.” Id. (citation omitted).

DISCUSSION

I. Whether the claims are barred by the three-year statute of limitations.

¶ 10. Mississippi Code Annotated section 15-1-49(1) provides for a three-year statute of limitations for all actions for which no other period of limitation has been prescribed. This limitations period begins within three years after the cause of action accrued. Id. However, the statute provides an exception to the three-year limitation period for certain situations. Section 15-1-49(2) states that: “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.”

¶ 11. In Donald v. Amoco Production Co., 735 So.2d 161, 167(¶16) (Miss.1999), the supreme court clarified that under section 15-1^9(2), “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.”

¶ 12. We find Weathers v. Metropolitan Life Insurance Co., 14 So.3d 688 (Miss.2009) controlling in our analysis of evaluating the issues raised herein. Weathers also provides guidance in the application of the section 15-1-49(2) discovery-of-injury rule. In Weathers, Daniel Ray Weathers, a policy holder, sued his life insurer, Met-Life, to recover for fraud, breach of contract, and negligent supervision arising out of the sale of a policy with a vanishing-premium obligation. Id. at 690(¶ 7). Met-Life filed a motion for summary judgment, arguing that Weathers’ claims were time-barred under section 15-1-49. Id. at (¶ 8). The supreme court noted that the critical question before it was “whether, in a summary judgment context, we can identify as a matter of law, the point at which Weathers knew or should have known or should have made an inquiry, based on the information available to him.” Id. at 692(¶ 14). The Weathers court noted that the agent’s representations were not inconsistent with the policy; thus, it found that a genuine issue of material fact existed as to whether the agent’s representation conflicted with the plain language of the policy and, accordingly, as to when Weathers should have discovered the fraud. Id. at 694(¶ 21).

¶ 13. Like Weathers, the Appellants herein argue that the statute of limitations was tolled under the discovery-of-injury rule. The Appellants bought their policies in the early and late 1990s. However, they assert that their cause of action accrued in 2004, when they discovered that their policies would terminate unless they increased their premium payments, contradicting Hancock’s prior alleged representations. North American, however, argues that the Appellants’ causes of action accrued when Hancock sold them the policies in the 1990s. North American further asserts that the policies unambiguously differed from Hancock’s oral representations.

¶ 14. North American points to Stephens v. Equitable Life Assurance Society of the United States, 850 So.2d 78, 83(¶ 16) (Miss.2003), where the supreme court held that the plain language of the policy puts an insured on notice that the agent’s verbal representations are false; thus, a fraud claim accrues on the date of the sale of the policy. The court further expressed that “insureds are bound as a matter of law by the knowledge of the contents of a contract in which they entered notwithstanding whether they actually read the policy.” Id. at (¶ 15).

¶ 15. However, we note that the supreme court later clarified this rule, stating that “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 693(¶ 19). In such situations, the discovery exception of section 15-1-49(2) applies, and the statute of limitations begins to run when the insured discovers or should have discovered the alleged misrepresentations. Id.

¶ 16. The question of whether a contract is ambiguous is a matter of law, and “the subsequent interpretation of an ambiguous contract is a finding of fact.” Phillips v. Enter. Transp. Serv. Co., 988 So.2d 418, 421(¶ 13) (Miss.Ct.App.2008). We note that uncertainty of the contractual terms can “provide the necessary condition precedent to find ambiguity.” Miss. Farm Bureau Mut. Ins. Co. v. Walters, 908 So.2d 765, 769(¶ 12) (Miss.2005). When an insurance policy is ambiguous, “this Court will apply the interpretation favoring the insured, and will determine the intent of the parties to the insurance contract "with reference to what a reasonable person in the insured’s position would have understood the terms to mean.” Progressive Gulf Ins. Co. v. We Care Day Care Ctr., Inc., 953 So.2d 250, 253(¶ 11) (Miss.Ct.App.2006) (citing J & W Foods Corp. v. State Farm Mut. Auto. Ins. Co., 723 So.2d 550, 552(¶9) (Miss.1998)).

¶ 17. In the case at bar, the Appellants argue that North American, through ambiguous terms and policy language, purposely concealed that the policy the Appellants actually bought differed from Hancock’s oral assurances about the policy premiums and life of the policy. Mississippi law provides that a cause of action may be tolled in cases where the cause of action was concealed by a party. Mississippi Code Annotated section 15-1-67 (Rev.2003) states:

If a person liable [for] any personal action shall fraudulently conceal the cause of action from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence might have been, first known or discovered.

In order to prove fraudulent concealment and to toll the statute of limitations, the Appellants must show that: “(1) some affirmative act or conduct was done and prevented discovery of a claim, and (2) due diligence was preformed [sic] on their part to discover it.” Stephens, 850 So.2d at 84(¶ 18).

¶ 18. Here, the Appellants assert that North American acted affirmatively to conceal their misrepresentations and wrongdoing, thereby tolling the limitations period under section 15-1-67. Specifically, the Appellants contend that: the policy was ambiguous; Hancock made false representations; and North American prepared and mailed confusing and ambiguous annual statements failing to state clearly when the policy would lapse if the insured only continued to pay the planned premiums. The Appellants testified that based on Hancock’s assurances, they believed that the polices remained in effect until the maturity date if they continued to pay the planned premiums calculated specifically for each of them. In support, Clint Wood, the Appellants’ expert, opined that “concealment occurred with every document showing guaranteed rates where that plaintiffs present premium would not carry the policy to the maturity date and no warning of this impending loss of coverage was stated.”

¶ 19. North American, alternatively, argues that the policies are unambiguous and contain warnings that the policy would lapse if sufficient premiums are not paid. North American further asserts that the Appellants admitted in their depositions that the policy language contradicted their alleged understanding of the policy.

¶20. To resolve these issues and to determine when the alleged cause of action accrued, we must first determine if the contractual terms are ambiguous by reviewing the plain language of each policy. All of the Appellants bought their policies from Hancock in the early and late 1990s. North American sent each of the Appellants a copy of his or her insurance policies by mail shortly after purchasing the policies from Hancock. Each of the Appellants’ policies contained the following statement:

The maturity date of this policy is the policy anniversary nearest the insured’s 100th birthdate. However, it is possible that coverage will expire prior to the maturity date shown if premiums are insufficient to continue coverage to such date. It is also possible that even if coverage continues to the maturity date there may be no surrender value available if sufficient premiums are not paid.

¶ 21. Each policy informed thé Appellants that he or she had a twenty-day period to examine the policy and to return it for any reason. In addition to the policy document, each Appellant received an annual statement beginning in 1998. The policy’s annual statement included a projection of policy values and contained the following statement: “ON THE PROJECTED BASIS, THIS COVERAGE LAPSES IN POLICY YEAR_”

¶ 22. Despite these warnings and various lapse dates relative to either a projected basis or base premium, the Appellants insist that even after reviewing the policy, they were unable to determine when it would lapse due to the ambiguity of the language of the policy. They claim they were also unable to determine from the documentation that their policies differed from Hancock’s representation. The annual statement further failed to explain that the planned premium was insufficient to carry the policy to the maturity date.

¶ 28. In Weathers, the supreme court found that the agent’s representations were not inconsistent with an interpretation of the policy. Thus, the court found that a general issue of material fact existed as to whether the agent’s representations conflicted with the plain language of the policy so as to place Weathers on notice of any misrepresentations or fraud at the time the policy was issued. Weathers, 14 So.3d at 694(¶ 21). The Weathers court noted that the policy at issue did not expressly address how the premiums were to be paid after the vanishing date. Id. Therefore, the Weathers court held that the policy could be construed as consistent with Weathers’s assertions that the agent orally represented that Weathers would not have to pay premiums after the vanishing date.

¶ 24. Relevant questions before the supreme court in Weathers were: (1) whether the contract was ambiguous; (2) if the policy was ambiguous, whether the policy could be construed consistently with the representations of the agent; and (3) at what point the insured was or should have been put on notice that the policy differed from the alleged false representations. Id. at 692-94 (¶¶ 16-20). Similarly, the relevant question before this Court is: when determining if the agent’s statements to the Appellants conflicted with the plain language of the policy, whether or not the terms of the policy could be read or construed as consistent with the agent’s alleged misrepresentations, or if the language of the policy is too ambiguous to provide the Appellants with notice of the misrepresentation. In conducting this evaluation, we review the plain language of the policy as a whole. In so doing, we examine whether the policy defines significant relevant terms such as “sufficient premium,” or clarifies that the planned premium would be insufficient, thereby placing the Appellants on notice of the alleged fraud. Additionally, we evaluated whether the language of the policy clearly states that the planned premium is insufficient to continue the policy to the maturity date.

¶ 25. As stated, the policy at issue is a universal life policy. The policy lists two different terms for premiums on the same page — a planned premium and subsequently a base premium. This page of the policy, setting forth the maturity date and death option, identifies the planned premium amount immediately adjacent to the maturity date. Listed first, the planned premium was calculated specifically for each insured based on the amount of coverage desired, the maturity date, and personal data. Then, lower on the page, the policy uses the term “base premium amount,” which is not defined in the policy. After first using a term for planned premium and then using the term base premium amount, a separate paragraph at the bottom of that portion of the policy warns of a policy lapse if sufficient premiums are not paid. The warning also communicates that based on the “premium” above, the policy will expire at some point before the maturity date. However, the warning does not specify whether the warning refers to the preceding policy term of the base premium amount or the preceding policy term of the planned premium amount. As stated, both premium terms were used in the policy prior to the warning of the policy lapse for non-payment of premiums. Upon review, we find that the policy contains no language defining the two terms of “base premium” and “planned premium” as being interchangeable. Moreover, the 1992 and 1993 policies do not define “sufficiency of premium.” Hale’s 1998 policy, however, contains significant new definitions not found in the earlier policies.

¶ 26. We know now, after hearing oral argument and reviewing the record and the parties’ briefs, that the policy was not designed to reach the maturity date unless the insureds paid something more than both the base premium amount and the planned premium amount. We further find the annual statements contain no clear language or terms sufficient to put the Appellants on notice that the policy would lapse if the insureds failed to pay more than the planned premium. Similarly, the policy terms contain no clear language notifying the insureds of the insufficiency of the “planned premium” to keep the policy in effect until maturity date.

¶ 27. In finding the five policies issued in 1992 and 1993 ambiguous, we note that the definition of maturity date in the policies fails to explain that the payment of the planned premium will not be sufficient to keep the policy in effect to the maturity date. Rather, the definition simply explains that the insurance may terminate prior to the maturity date if “sufficient” premiums are not paid, without defining sufficient premium. Again, the 1992 and 1993 policies both fail to define sufficient premium. Moreover, the 1992 and 1993 policies contain no definition for base premium, and the definition of periodic premium also contains no definition or reference to sufficiency of premium or planned premium. The periodic premium terms fail to explain that the planned premium is insufficient to keep the policy effective.

¶ 28. In the 1992 and 1993 policies, Sections A and B of the premium policy provisions set forth a formula using terms for the calculations for a sufficient premium to keep the policy in force in relation to the “base premium expiry date.” The pertinent policy provisions state as follows:

A. Before the Base Premium Expiry Date
We first check to see if the total premiums paid to date less any partial surrenders equal or exceed the cumulative Base Premiums. Cumulative Base Premiums equal the Base Premiums shown in the Policy Schedule times the number of months, plus one, since the Policy Date. If so, we do an accumulation[-]value test. If not, we do a surrender[-]value test. Failure to pass the test applied causes a lapse to occur.
To pass the accumulation[-]value test, the accumulation value less any indebtedness must be sufficient to cover the next monthly deduction.
The next monthly deduction is for the policy month following the date of the test. To pass the surrender[-]value test, the surrender value must be sufficient to cover the next monthly deduction.
B. After the Base Premium Expiry Date
A policy lapse occurs when surrender value is insufficient to cover the next monthly deduction. The Base Premium and the Base Premium Expiry Date are shown in the Policy Schedule. The Base Premium shown is the monthly Base Premium. The following terms are described in the Nonforfeiture Provisions section:
(1) monthly deductions;
(2) accumulation value;
(3) surrender value; and
(4) partial surrender.
The Base Premium and the Base Premium Expiry Date are revised if the Specified Amount is increased after the Policy Date. The Base Premium Expiry Date is advanced by the number of months from the date of a lapse to the date of any reinstatement.
The amount of the premium required to keep this policy in force should a lapse occur also depends on whether the Monthly Anniversary Date we test for a policy lapse is before or after the Base Premium Expiry Date.

We note that the policy makes no reference in this calculation in regard to any application of or relevance between the policy terms of base premium expiry date, base premium, and the planned premium.

¶ 29. The general policy provisions also contain a merger clause, which states that only the policy, application for the policy, and any supplemental application constitute the entire contract between the parties. The policy projection statements that North American began sending to the insureds in 1998 state that “THIS PROJECTION IS NOT A CONTRACT NOR PART OF A CONTRACT,” and we hold that the projection statements should, therefore, not be considered in determining if the language of the policy is ambiguous. We note that this projection statement is relevant, however, for purposes of notice and discovery of alleged fraud. In determining whether a contract is ambiguous, courts should consider the contract as a whole, and extrinsic evidence should only be considered upon a finding that the contract is ambiguous. Henry v. Moore, 9 So.3d 1146, 1152-53 (¶¶ 16-17) (Miss.Ct.App.2008).

¶ 30. The general policy also lists the events giving rise to termination. These events contain no term allowing termination for failing to pay more than the planned premium, nor is insufficient planned premiums listed as a cause for termination under these events. However, the ending of the grace period is listed as a terminating event, so our analysis entailed a review of the policy’s explanation of grace period. The policy states that “a grace period of 61 days is allowed for payment of a premium sufficient to keep this policy in force for the policy month beginning on the date of a policy lapse.” In looking back at the 1992 and 1993 policies to the definition of grace period, the policies define the grace period in reference to the base premium expiry date, but not in relation to the planned premium. As previously stated, the base premium expiry date fails to refer to the planned premium.

¶ 31. Likewise, the projection of policy values fails to rectify any ambiguity regarding the insufficiency of the planned premium. Instead, the projection sets forth policy values and references yet a new term, “cumulative guideline premium,” thus muddying the waters even further. The projection does not reference the terms utilized in the underlying policy-the base premium amount or the planned premium amount. In addition, the projection fails to explain whether the cumulative guideline premium is different or similar to the planned premium articulated in the policy.

¶ 32. To resolve the issues before us, we must apply the law to these particular facts and policies. The Weathers court found that since the terms of the policy could be read in a manner consistent with the agent’s representations, a general issue of material fact existed as to when Weathers was placed on notice that the policy terms differed from the agent’s oral representations. Weathers, 14 So.3d at 694(¶21). The court determined that a jury could reasonably conclude that the terms of the policy created an ambiguity, depriving Weathers of knowing he had been defrauded until after the applicable statute of limitations had run.

¶ 33. The supreme court made a similar ruling in Pate v. Conseco Life Insurance Co., 971 So.2d 593 (Miss.2008). Charles Pate, who bought a life insurance policy from Conseco, claimed that when he purchased his coverage, the company promised him that his premiums would never be raised. Id. at 596(¶ 7). The court found that since the issued policy did not contradict that alleged misrepresentation, Pate’s claim for misrepresentation accrued on the date the premiums were raised, not on the day of the policy’s issuance. Id. at 596-97(¶ 10).

¶ 34. Turning to the case at bar, in contrast to the five policies issued in 1992 and 1993, Hale’s policy, purchased in 1998, contains a projection of benefit and policy values, as well as a new index that defines sufficiency of premium and annual report. Under the definition of premium sufficiency, the policy states that “[tjhere is no guarantee that the payment of the Planned Premiums will keep the policy in force until the Maturity Date.... The Projected Lapse Date shown in the Schedule is based on Planned Premiums and the guaranteed rates and charges.” This warning clearly contradicts Hancock’s assurances that her policy provided constant premiums to maturity. We find the language of Hale’s policy to be unambiguous.

¶ 35. However, we find the language of the five policies issued in 1992 and 1993 ambiguous. Therefore, after showing the policy to be ambiguous and not in conflict with the agent’s alleged representations, the Appellants must also prove that even though they acted with due diligence in attempting to discover the cause of action, they were unable to do so. Robinson v. Cobb, 763 So.2d 883, 888(¶ 26) (Miss.2000). With respect to fraudulent concealment, in Robinson, the supreme court held that the question of whether fraudulent concealment occurred, and whether due diligence had been exercised in attempting to discover the cause of action, is a question of fact for the jury. Id. at 889 (¶¶ 37-38). In the present case, the Appellants assert that a letter from their counsel put them on notice of the discrepancies between their policies and Hancock’s representations. The Appellants allege that they immediately contacted Hancock and North American in 2004 once they discovered from their counsel that their policies would terminate unless premium payments increased. The Appellants then filed suit against North American and Hancock in August 2004.

¶ 36. When reviewing summary judgment, we “look at the evidence in the light most favorable to ... the party against whom summary judgment was granted.” Sellars ex rel. Dill v. Walgreen Co., 971 So.2d 1278, 1279(¶ 5) (Miss.Ct.App.2008). Thus, when reviewing the terms of the policy in the light most favorable to the Appellants, except Hale, we find that a genuine issue of material fact exists as to when the cause of action accrued, specifically when a reasonable policyholder should have realized that the terms of the policy conflicted with the alleged oral representations by Hancock. We hold that where an ambiguous policy, by its plain language does not conflict -with the agent’s misrepresentations, the fraud claim accrued when the insured became aware of the misrepresentations or reasonably should have done so. Weathers, 14 So.3d at 693(¶ 19). Accordingly, we find that as to the policies owned by Sarah Hicks, L.T. Hicks, William Evans, Robert Childers, and Ray Spencer, a genuine issue of material fact exists as to when the alleged fraud was consummated. Therefore, we reverse the trial court’s grant of summary judgment as to these five claims, and this case is remanded for further proceedings consistent with this opinion.

¶ 37. However, for any unambiguous policies that clearly conflicted with the oral representations of the agent, we submit that the three-year statute of limitations began to run at the point of sale of the policies. Since we find the language of Hale’s policy unambiguous and clearly conflicts with the oral representations of the agent, we therefore affirm the trial court’s grant of summary judgment as to Hale’s claim.

II. Whether a question of fact exists regarding the Appellants’ breach of fiduciary duty cause of action.

¶ 38. Lastly, the Appellants argue that the trial court erred in granting summary judgment when material issues of genuine fact existed regarding whether the Appellants possessed a fiduciary relationship with Hancock. It is well established under Mississippi law that no fiduciary duty exists “between an insurer and an insured, or between the agent of the insurer and insured, in the context of first-party [insurance] contracts.” Walden v. Am. Gen. Life, 244 F.Supp.2d 689, 693 (S.D.Miss.2003); Estate of Jackson v. Miss. Life Ins. Co., 755 So.2d 15, 24(¶ 36) (Miss.Ct.App.1999) (citations omitted).

¶ 39. The Appellants argue that they all “had great confidence and imposed substantial trust in Cliff Hancock and his insurance advice.” The Appellants cite to Lowery v. Guaranty Bank and Trust Co., 592 So.2d 79, 80 (Miss.1991), in which Mrs. Lowery and the estate of Mr. Lowery sued Guaranty Bank and its agent for a breach of its fiduciary duty to notify them that an insurance policy had terminated. The agent basically acted as the Lowerys’ loan officer, had previously extended bank notes without any formal application, and had advised the family regarding financial insurance matters in the past. Id. at 85. The Mississippi Supreme Court found that the history between the Lowerys and the agent could have created a relationship where the Lowerys:

placed [their] trust and confidence in Guaranty Bank to the point of being less vigilant about the coverage of the credit life insurance than they had been in the past. If that were the case, the bank owed them a duty to notify them that the credit life insurance had lapsed and that it would not be in force while they waited on Mr. Lowery to return.

Id.

¶ 40. In the case at bar, the Appellants fail to allege or provide evidence that they maintained any significant professional or fiduciary relationship with Hancock outside of buying insurance policies from him. The record is void of evidence of any special circumstances which would warrant this Court to depart from the general rule that no fiduciary relationship exists between an insurer and insured. Accordingly, the trial court properly concluded that this claim by each of the Appellants was legally insufficient to withstand summary judgment.

¶ 41. THE JUDGMENT OF THE BENTON COUNTY CIRCUIT COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-SIXTH TO APPELLANT HALE AND FIVE-SIXTHS TO THE APPELLEES.

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

      . The complaint was originally filed on behalf of ten plaintiffs. Four plaintiffs voluntarily dismissed their claims in August 2005. The remaining six appellants are Sarah Hicks, L.T. Hicks, Martha Jo Hale, William Evans, Robert Childers, and Ray Spencer. For the sake of clarity, these six appellants may be referred to collectively as "the Appellants.”

      . Flexible insurance policies give policy holders a variety of options to choose from, including premium amounts and investment schemes.

      . The language in Hale's policy differed from the other Appellants’ policies by defining terms such as sufficiency of premium.

      . In 2004, the Appellants received a letter from North American informing them that their premiums would be increasing.

      . Hancock's representations were not made part of the contract, nor were they referred to or incorporated by reference in the contracts. Thus, the discrepancy between Hancock’s statements and the contractual terms goes only to notice, and not to whether the contract was ambiguous.

      . Each respective Appellant had a different policy year listed regarding when coverage would lapse. This lapse date was different from the expiration date in the policy relative to the “base premium."

      . As stated above, the policies list the planned-premium amount immediately adjacent to both the maturity date and death option chosen.

      . The policy uses the term "base premium expiry date,” but the policy fails to define this term.

      . In 2004, after receiving letters from North American stating that his premium payments were insufficient, Evans inquired as to why his premiums were rising. Hancock responded that he did not know the answer, but would look into the matter and call Evans back with any information. When Hancock failed to call Evans back with an answer regarding the increases, Evans initiated the present lawsuit.


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Joe Louis AMERSON, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-00389-COA.
    Court of Appeals of Mississippi.
    Feb. 16, 2010.
    Rehearing Denied Aug. 10, 2010.
    Certiorari Denied Nov. 10, 2010.

      Joe Louis Amerson Jr., Appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court:

¶ 1. Joe Louis Amerson Jr., pro se, appeals the denial of his motion for post-conviction relief (PCR). Amerson asserts that the Circuit Court of Lauderdale County erred in finding his allegation of an illegal sentence to be time-barred pursuant to Mississippi Code Annotated section 99-39-5(2) (Supp.2009). Finding that Amer-son untimely filed his PCR motion, we affirm the judgment of the circuit court.

STATEMENT OF THE CASE

¶ 2. On August 6, 2004, Amerson pleaded guilty to robbery and was sentenced to fifteen years’ imprisonment as a habitual offender. Amerson had two prior felony convictions and sentences of over one year’s imprisonment in Mississippi and five such prior convictions and sentences in Florida. In addition to the robbery count to which Amerson pleaded guilty, he was also charged with three additional counts of robbery, as well as one count of armed robbery. As a result of his guilty plea to the single count of robbery, the State agreed to dismiss the three additional robbery counts, as well as the one armed robbery count.

¶ 8. On January 16, 2009, Amerson filed a PCR motion in the Lauderdale County Circuit Court. In his PCR motion, Amer-son alleged that one of his previous felony convictions in Mississippi had occurred in 1975, which was two years prior to the effective date of Mississippi Code Annotated section 99-19-81 (Rev.2007) (one of two habitual-offender statutes), which mandates enhanced sentencing for a person convicted of a third felony. Amerson contended that reliance on the 1975 conviction as a prior offense for habitual-offender status constituted an illegal, ex post facto, sentence. Additionally, Amerson contended that his plea was involuntary because: (1) he was not informed that the sentence violated the prohibition against ex post facto laws, (2) he was not informed that the State had failed to prove that he had an underlying felony involving a crime of violence, and (3) he was threatened with a sentence of life imprisonment and was given no choice but to plead guilty. Amer-son contended that because his sentence was illegal, his PCR claim implicated a fundamental constitutional right, exempting it from the three-year time bar of Mississippi Code Annotated section 99-39-5(2).

¶ 4. The circuit court found that Amer-son’s PCR motion was untimely, as well as without merit. The circuit court noted that nothing evidenced that the Mississippi Legislature intended that convictions entered prior to the enactment of our habitual-offender statutes should not be considered as previous convictions for habitual-offender status. The circuit court also noted that Amerson had five previous convictions in Florida which post-dated the enactment of our habitual-offender statutes, one of which was for robbery with a deadly weapon. The circuit court further noted that the plea colloquy left no doubt that Amerson’s plea was knowingly and intelligently made.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 5. Amerson contends that his PCR motion is not time-barred because the sentence given to him is illegal, thus implicating a fundamental right. Our supreme court has found that an illegal sentence may implicate a fundamental right and that a claim implicating a fundamental right may be excepted from the three-year time bar of section 99-39-5. Sneed v. State, 722 So.2d 1255, 1257 (¶11) (Miss.1998). However, “the mere assertion of a constitutional violation is not sufficient to overcome the time bar. There must at least appear to be some basis for the truth of the claim before the limitation period will be waived.” Cochran v. State, 969 So.2d 119, 121 (¶ 4) (Miss.Ct.App.2007) (quoting Stovall v. State, 873 So.2d 1056, 1058 (¶ 7) (Miss.Ct.App.2004)).

¶ 6. In this case, the record shows that, in 1980, Amerson was convicted of armed robbery and, in 1975, of jail escape, with both convictions having occurred in the Lauderdale County Circuit Court. Amerson contends that the 1975 conviction could not serve as a previous felony conviction for habitual-offender status, because the conviction predated the effective date of Mississippi’s habitual-offender statute. Section 99-19-81 became effective on January 1, 1977. A plain reading of this law does not require underlying felony convictions to have occurred after the statute’s effective date. Moreover, Amerson fails to site any legal authority for this proposition. “When a party on appeal assigns an error without any citation to authority, [appellate courts] will deem this failure to cite any authority as a procedural bar.” Givens v. State, 967 So.2d 1, 8 (¶ 20) (Miss.2007) (citing Turner v. State, 721 So.2d 642, 649 (¶ 27) (Miss.1998)). Therefore, Amerson’s failure to cite legal authority is reason alone to find no merit to his contentions. However, even if this Court were to consider whether Amerson asserted a col-orable claim that his 1975 conviction of jail escape should not be considered in determining his habitual-offender status, the record shows that he had been convicted of five felonies in Florida, four in 1988 and one 1986. Therefore, the circuit court did not eir in finding that not only is Amer-son’s claim of an illegal sentence time-barred, but also that Amerson was correctly indicted as a habitual offender and subject to the provisions of section 99-19-81.

¶ 7. Amerson contends that his sentence is illegal because his plea was entered unknowingly and involuntarily. Amerson again contends that because his sentence is illegal, his PCR motion implicates a fundamental constitutional right that exempts his claim from the three-year time bar of section 99-39-5(2). The record shows that Amerson was advised by the circuit court that if he did not take the plea, the State could try him upon the charge that he ultimately pleaded guilty to, as well as the other four felony charges that were pending in Lauderdale County, and if he was convicted upon any of those charges, he would be sentenced to life imprisonment •without the possibility of parole. Amerson contemplated his choices. The record shows that the circuit court gave him time to consult privately with his attorney. He told the circuit court that he had considered that — because he was forty-eight years old — a fifteen-year sentence would be “almost [his] whole life,” he wished to accept the State’s offer, as there was a possibility that he would not spend the rest of his life in prison. There was no coercion involved in Amerson’s entry of his guilty plea. Amerson’s claim that his guilty plea was involuntary lacks even a scintilla of merit and, therefore, cannot be found to escape the three-year time bar. See, e.g., Cochran, 969 So.2d at 121 (¶ 4).

¶ 8. Amerson’s contentions that his sentence is illegal are without merit; therefore, no fundamental right can be implicated. The circuit court did not err in denying Amerson’s PCR motion as both time-barred and without merit.

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

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

      . This section mandates that the sentence shall be the maximum term of imprisonment prescribed for such felony and requires that the two previous felony convictions must have emanated from charges separately brought and arising out of separate incidents at different times and resulting in separate sentences of one year or more in any state and/or federal penal institution. Mississippi’s other habitual-offender statute, Mississippi Code Annotated section 99-19-83 (Rev.2007), provides that a person convicted of a third felony shall be sentenced to life imprisonment if one of the two prior felony convictions was for a crime of violence.

      . He described his predicament as a "do or die” situation.


author: MYERS, P.J.,

text:
    Tommy Junior McCRORY, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00290-COA.
    Court of Appeals of Mississippi.
    May 11, 2010.
    Rehearing Denied Aug. 10, 2010.
    Certiorari Denied Nov. 10, 2010.

      M. Judith Barnett, attorney for appellant.
    Office of the Attorney General by John R. Henry, Jr., attorney for appellee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   MYERS, P.J.,

for the Court:

¶ 1. Tommy Junior McCrory was tried and convicted in the Circuit Court of Rankin County on two counts of sexual battery. The trial court sentenced McCrory on each count to thirty-five years in the custody of the Mississippi Department of Corrections, with thirty years to serve and five years’ post-release supervision. The sentences were ordered to be served concurrently, and McCrory was required to register as a sex offender. Aggrieved by his convictions and sentences, McCrory appeals, arguing error in five issues. Because we find no reversible error, we affirm.

FACTS

¶ 2. On May 7, 2007, McCrory was indicted on two counts of sexual battery. The indictment alleged that between November 18, 2005, and January 8, 2007, McCrory had digitally penetrated his male stepchildren A.B. and B.B. in violation of Mississippi Code Annotated section 97-3-95 (Rev.2006). At the time of the indictment, the children were eleven and eight years of age, respectively.

¶ 3. The allegations first came to light in November 2006, when A.B. visited with Robert Brown, his father. Brown testified that A.B.’s mother had asked him to speak with the child regarding problems at home and at school. Brown took A.B. to a Wendy’s restaurant, where he expected to discuss AB.’s continuing bowel incontinence. When Brown questioned A.B. about his “problems,” the child instead volunteered that he had been abused. A.B. stated that McCrory, who had recently married his mother, would “check his oil” by holding A.B. down and forcing a finger into his rectum. A.B. stated that McCrory had done this to him many times. A.B. also stated he had previously revealed the abuse to his mother and maternal grandmother, but his grandmother had dismissed it as a “joke,” and his mother had told him that she needed McCrory’s income to pay the bills.

¶ 4. A.B. “begged” his father not to call the police, stating that he feared he would “get in trouble” and that his mother would be arrested. Nonetheless, Brown reported the alleged abuse to the Mississippi Department of Human Services that evening. After an emergency hearing in the Rankin County Youth Court, A.B. and B.B. were placed in Brown’s custody. B.B., although born to Brown and his mother’s marriage, was not Brown’s natural child. Some time after being placed in Brown’s custody, B.B. told Brown that he had also been molested by McCrory. B.B.’s description of the abuse was similar to that offered by A.B. Approximately five months before the trial, B.B. was placed in the custody of his maternal grandmother.

¶ 5. At trial, A.B., B.B., and Brown testified for the State. The State also called Detective James Thompson of the Pearl Police Department, who investigated the allegations and had interviewed McCrory. Brian Ervin, a forensic interviewer with the Children’s Advocacy Center (CAC) in Brandon, Mississippi, and Katherine Ko-lar, a sexual assault nurse, also testified for the State.

¶ 6. The defense called several witness who testified that “checking the oil” referred to a joke and had no sexual connotation as McCrory used it. The children’s mother and grandmother denied any prior knowledge of the allegations, and they also averred that McCrory had had no opportunity to abuse the children because the children lived primarily with their grandmother, rather than with McCrory and their mother.

¶ 7. After a three-day trial, the jury returned guilty verdicts on both counts.

DISCUSSION

1. Sufficiency of the Evidence; Venue

¶ 8. In his first issue, McCrory argues that the State failed to prove venue and, therefore, jurisdiction over the second count, pertaining to the sexual battery of B.B.

¶ 9. Mississippi Code Annotated section 99-11-3(1) (Rev.2007) states in pertinent part:

The local jurisdiction of all offenses, unless otherwise provided by law, shall be in the county where committed. But, if on the trial the evidence makes it doubtful in which of several counties, including that in which the indictment or affidavit alleges the offense was committed, such doubt shall not avail to procure the acquittal of the defendant.

We have held:

“In criminal cases, venue is jurisdictional, must be proved, and may be raised for the first time on appeal.” Hensley v. State, 912 So.2d 1083, 1086 (¶ 12) (Miss.Ct.App.2005). The State bears the burden of proving venue beyond a reasonable doubt. Hill v. State, 797 So.2d 914, 916 (¶ 10) (Miss.2001). Venue may be proven by direct and circumstantial evidence. Hensley, 912 So.2d at 1086 (¶ 12). Where there is sufficient evidence to lead a reasonable trier of fact to conclude that part or all of the crime occurred in the county where the case is being tried, then evidence of venue is sufficient. Hill, 797 So.2d at 916 (¶ 12).

McBride v. State, 934 So.2d 1033, 1035 (¶ 10) (Miss.Ct.App.2006).

¶ 10. McCrory argues that B.B., who was nine years of age at the time of the trial, was never asked on direct examination where the assaults took place. On cross-examination, the defense twice asked B.B. where the abuse had occurred, but B.B. stated that he could not remember. The State concedes that B.B. never explicitly stated that the acts occurred in Rankin County, but it argues that this fact was established through other evidence. We agree.

¶ 11. B.B. testified that during the time McCrory abused him, he lived with his grandmother or with his mother and McCrory. Testimony from various witnesses at trial unanimously indicated that the grandmother’s home was located in Richland, Mississippi, and that during the relevant time period B.B.’s mother and McCrory lived first in an apartment and then in a house, both located in Pearl, Mississippi. Witnesses expressly testified during the trial that both Richland and Pearl are located in Rankin County.

¶ 12. B.B. stated that when the abuse began, he was living with his grandmother, but he would regularly visit with his mother and McCrory. The abuse during this time had occurred “most of the days,” and B.B.’s older half-brother, A.B., was present and witnessed the abuse on some occasions. In his testimony, A.B. was more specific, stating that he was abused “on a daily basis” “at the house or any place where [McCrory] was and I was too.” A.B. also testified that “[m]ost of the time [the abuse occurred] where they were living, at the apartments on Malbury Street.”

¶ IB. Although we acknowledge that B.B. did not expressly state where the abuse occurred, we find the testimony described above sufficient to establish venue in Rankin County by circumstantial evidence. This issue is without merit.

2. In-Court Identification

¶ 14. In his second issue on appeal, McCrory argues that his conviction as to Count II must be reversed because B.B. failed to identify him in the courtroom on the day of trial, when asked to do so on direct examination.

¶ 15. At the outset, we find this issue procedurally barred because McCro-ry has failed to cite any relevant authority in support of this issue on appeal. Turner v. State, 721 So.2d 642, 648 (¶ 20) (Miss.1998).

¶ 16. Notwithstanding the procedural bar, this issue is plainly without merit. B.B. testified that he had been abused by “Tommy,” who had been married to B.B.’s mother and was the father of B.B.’s two-year-old half-brother. McCrory’s given name is, of course, Tommy, and other witnesses identified McCrory as the man who had married B.B.’s mother and as the father of B.B.’s young half-brother. Furthermore, we note that B.B. was eight years of age at the time of the trial and testified that he had not seen “Tommy” for more than a year. Another witness for the State noted that McCrory had altered his appearance prior to the trial by changing his “hair style.” McCrory was sufficiently identified as the individual who had assaulted B.B. This issue is without merit.

3. Testimony Regarding the Victims’ Credibility

¶ 17. In his third issue on appeal, McCrory argues that the trial court erred in allowing Brian Ervin, offered by the State as an expert in forensic interviewing, to testify regarding the “credibility and veracity” of A.B. and B.B. Ervin had conducted forensic interviews of the children approximately two months after the allegations of abuse came to light.

¶ 18. We note that McCrory offered no contemporaneous objection on these grounds to any of the testimony he now asserts was erroneously allowed at trial. This issue is therefore procedurally barred on appeal. Watts v. State, 733 So.2d 214, 233 (¶ 53) (Miss.1999).

¶ 19. Notwithstanding the procedural bar, we find this issue is without merit. In Hobgood v. State, 926 So.2d 847, 853-54 (¶¶ 18-23) (Miss.2006), the supreme court distinguished between expert testimony regarding the “credibility” of children alleging sexual abuse and opinions regarding the “veracity” of such allegations. The former, although “of dubious competency,” may be admissible; the latter cannot. Id. At the heart of this issue is whether the witness “cross[es] the line and say[s] that [the victim] was telling the truth.” Id. at 854 (¶ 23).

¶20. In the instant case, Ervin never testified as to the veracity of either of the victims’ statements. In fact, although he was asked by the State on direct examination whether he found each victim “credible,” Ervin responded only by detailing certain observations that in his opinion “added credibility” to each boy’s account. After reviewing Ervin’s testimony in its entirety, we find no error in the admission of his comments regarding the victims’ credibility. Id. We note also that the jury was able to observe both A.B. and B.B. when they testified at trial and that the jury was properly instructed that it alone was the final arbiter of credibility. Branch v. State, 998 So.2d 411, 416 (¶ 17) (Miss.2008); Hobgood, 926 So.2d at 854 (¶ 22). This issue is without merit.

4. Hearsay; Detective Thompson

¶ 21. In his fourth issue on appeal, McCrory argues that the trial court erred in admitting certain hearsay testimony offered by Detective Thompson, the principal investigator in the case. The trial court permitted Detective Thompson, over MeCrory’s objection, to relate both sides of an exchange between himself and the victims’ mother that occurred at the first CAC interview.

¶ 22. The victims attended two CAC interviews. The first was held in Jackson, Mississippi, where the children made no disclosure of abuse. In this line of questioning, the prosecutor was attempting to explain why the victims did not disclose the abuse during the first interview. Detective Thompson testified on direct examination by the State as follows:

Q. Tell the jury what happened at that CAC interview[.]
A. You want me to tell what led up to that and then what happened there?
Q. Let’s advise the jury of what led up to that meeting from Youth Court that /all were required to go to CAC for an interview, who all went, and just talk us through that day’s events[.]
A. As an adult and as a police officer, my job is to protect kids. Well, during that hearing at Youth Court, the mother had made a comment in open court that it was just a game.
[DEFENSE COUNSEL]: Your Honor, I object to hearsay.
[THE STATE]: It’s not being offered for the truth of the matter.
[THE COURT]: Overruled. It’s not offered for the truth of the matter. You may answer.
A. That this was just a game and it was something that had been passed on from generation to generation, and that bothered me. Then I also learned that the kids were told not to tell because mom didn’t want Tommy to go to jail because he was the provider in the household. So we leave Youth Court. Naturally as a human being and as a father, I was fuming. So I drove to Jackson and got to CAC. When I got there, I got the mother to come outside on the sidewalk there and I let her have it. Whether that be [sic] right or wrong, the kids overheard me and seen [sic] me, and I guess they were upset that not only was the provider in the household in trouble, but now mom is in trouble because of things she’d said. So they didn’t disclose [the abuse] at CAC that day because of me.

¶ 23. On appeal, McCrory argues that this testimony was inadmissible hearsay and that its admission amounted to reversible error. Our analysis of this issue is complicated because McCrory has failed to identify precisely what part of the testimony quoted above his argument on appeal is addressed to. Based on his assertion in his brief that the “record is unclear as to who exactly made the statement to the [d]etective,” we take this issue to address Detective Thompson’s testimony that: “I also learned that the kids were told not to tell because mom didn’t want Tommy to go to jail because he was the provider in the household.”

¶ 24. This issue, like the previous issue, must fail because McCrory made no contemporaneous objection at trial. Although there was an objection, it was addressed to the prior statement regarding the mother’s assertion at the youth court hearing that the alleged abuse was “just a game.” McCrory made no objection to the particular statement he now asserts amounted to reversible error. This issue is therefore procedurally barred from our review. Watts, 733 So.2d at 233 (¶ 53).

¶25. Notwithstanding the procedural bar, any error in admitting this testimony was harmless. The substance of the statement — that the victims’ mother had told the children not to disclose the abuse because she feared the loss of McCrory’s income — was also established through A.B.’s direct testimony and through his father’s testimony as admissible hearsay.

5. Hearsay; Tender Years Exception

¶26. In his final issue on appeal, McCrory argues that the trial court erred in admitting the hearsay testimony offered by Brown, A.B.’s father and B.B.’s stepfather, under the “tender years exception” of Rule 803(25) of the Mississippi Rules of Evidence. The trial court allowed Brown to testify as to certain statements made to him by both victims.

¶ 27. Rule 803(25) provides the following:

A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provided substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness....

¶28. There is a rebuttable presumption that a child under the age of twelve is of tender years. Allred v. State, 908 So.2d 889, 892 (¶ 11) (Miss.Ct.App.2005). At the time of the disclosures to Brown, both victims were under the age of twelve. On appeal, McCrory does not contest the trial court’s finding that A.B. and B.B. were of tender years, and the testimony at the Rule 803(25) hearing was unanimous that both children were of normal or below normal maturity for children of their respective ages.

¶ 29. The inquiry, however, does not end there. Once the court finds that a declarant is of tender years, it must then determine whether the child’s statements possess “substantial indicia of reliability.” M.R.E. 803(25). The comment to Rule 803(25) recites several factors, commonly called the Wright factors, that the trial court may consider:

(1) whether there is an apparent motive on declarant’s part to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) the timing of the declarations; (6) the relationship between the declarant and the witness; (7) the possibility of the declarant’s faulty recollection is remote; (8) certainty that the statements were made; (9) the credibility of the person testifying about the statements; (10) the age or maturity of the declarant; (11) whether suggestive techniques were used in eliciting the statement; and (12) whether the declar-ant’s age, knowledge, and experience make it unlikely that the declarant fabricated.

See also Idaho v. Wright, 497 U.S. 805, 822, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). However, the Wright factors are not an exhaustive list, and “no mechanical test is available.” Withers v. State, 907 So.2d 342, 350 (¶ 23) (Miss.2005) (quoting Eakes v. State, 665 So.2d 852, 865 (Miss.1995)). Instead, “the unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.” Bell v. State, 797 So.2d 945, 948 (¶ 13) (Miss.2001) (quoting Wright, 497 U.S. at 822, 110 S.Ct. 3139).

¶ 30. “The standard of review on appeal from evidentiary rulings is prescribed by Rule 103(a) of the Mississippi Rules of Evidence, which states that ‘error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected.’ ” Withers, 907 So.2d at 345 (¶ 7) (quoting M.R.E. 103(a)). Thus, we review the trial court’s ruling for an abuse of discretion, which may be found only if that decision is not supported by substantial credible evidence or where “the reviewing court has a definite and firm conviction that the court below committed a clear error of judgment and [in the] conclusion it reached upon a weighing of the relevant factors.” Id. (internal quotations omitted).

¶ 31. The trial court conducted a Rule 803(25) hearing on this issue, where it heard extensive testimony from Brown regarding the circumstances of each child’s disclosure. Prior to the hearing, both children had testified as part of the State’s case-in-chief. After concluding the hearing, the trial court acknowledged the Wright factors and found that the “time, content, and circumstances of the statements made by both of the victims provide substantial indicia of reliability.”

¶ 32. During the Rule 803(25) hearing, Brown testified that A.B. had first disclosed the abuse to him at a Wendy’s restaurant, as we have detailed above. Brown stated that B.B. had spontaneously revealed the abuse some time later, at Brown’s home in Flora, Mississippi. This occurred some time after both boys had been placed in his custody. Brown could not recall the exact date B.B. made the first disclosure, except that it was “around Christmas time” and followed the boys being informed that their mother would have limited visitation.

¶ 33. On appeal, McCrory argues that the trial court erred in concluding that the victims’ statements possessed substantial indicia of reliability. He argues that the trial court ignored or failed to properly weigh certain facts, particularly that the children had failed to disclose any abuse during the first CAC interview, which occurred shortly after A-B.’s initial disclosure. At the time of the second CAC interview, when both children disclosed the abuse to Ervin, the children had been in Brown’s custody for approximately six weeks. McCrory also argues that only Brown was present during the initial disclosures of both victims and that Brown’s testimony that both disclosures were spontaneous was uncorroborated except by the children themselves. Finally, McCrory argues that Brown’s relationship with the children prior to the disclosures had been tenuous. He asserts that Brown had exercised little visitation with A.B. prior to the disclosure of abuse. McCrory also argues that B.B. would not have disclosed abuse to Brown because Brown was not his natural father and had not been awarded any visitation with the child up to that point. McCrory also suggests that the relationship between Brown and B.B. might have been strained because B.B. was a product of his wife’s extramarital affair and that that affair had occurred while Brown was serving in the Navy.

¶ 34. After a thorough review of the record, we can find no abuse of discretion in the trial court’s findings. The trial court considered the facts McCrory cites in his arguments, but it also heard competing evidence on many of those points. Brown and the children offered an explanation of why no disclosure was made at the first CAC interview, and Brown offered competing characterizations of his relationship with the children. In the end, the trial court found Brown’s and the children’s testimonies to be credible. We can find no basis to disturb that finding. This issue is without merit.

¶ 35. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY OF CONVICTION OF COUNT I, SEXUAL BATTERY, AND COUNT II, SEXUAL BATTERY, AND SENTENCE OF THIRTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THIRTY YEARS TO SERVE AND FIVE YEARS OF POST-RELEASE SUPERVISION, FOR EACH COUNT WITH THE SENTENCES TO RUN CONCURRENTLY, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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

      . To protect the anonymity of minor victims of sexual abuse, we use fictitious names or initials to represent their names and the names of close relatives.

      . The State instead asked B.B. where he "lived” when the acts occurred.

      . It is clear from the record that the "they" A.B. referred to were his mother and McCro-ry and that this apartment was located in Pearl, Mississippi, in Rankin County.

      . The second interview, conducted in Brandon, forms the basis for Ervin’s testimony addressed in the third issue, above. Ervin was not involved in the first CAC interview, which was held approximately one month before the second interview.

      . It is unclear exactly what transpired during the first CAC interview, but Brown stated that the children later told him that they had "lied.” On cross-examination, A.B. had testified that he had not disclosed the abuse at the first CAC interview because he "was scared [his mother and McCrory] would get mad at [him].” B.B. testified that he did not remember, the first interview.


author: MAXWELL, J.,

text:
    Richard CHAPMAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-CP-00725-COA.
    Court of Appeals of Mississippi.
    July 20, 2010.

      Richard Chapman, Appellant, pro se.
    Office of the Attorney General by John R. Henry, Jr., attorney for appellee.
    Before KING, C.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. A jury in the Hinds County Circuit Court found Richard Chapman guilty of rape. He later pled guilty to robbing the rape victim. Approximately twenty-four years later, Chapman sought post-conviction relief (PCR). The circuit court sum-manly dismissed his PCR motion in part because it was barred by the applicable three-year statute of limitations. On appeal, Chapman raises the following assignments of error:

I. His conviction and/or sentence were imposed in violation of the United States Constitution.
II. His due-process rights were violated.
III. The circuit court erred in refusing to conduct an evidentiary hearing.
IV. His guilty plea to the crime of robbery was not voluntary and intelligent.
V. He received ineffective assistance of counsel.
VI. His “custody is illegal.”
VII. His indictments for robbery and rape were defective.
VIII. The jury was not drawn from a fair cross-section of the community.
IX. The prosecution failed to disclose material exculpatory evidence.
X. He is innocent of the crime of rape.
XI. The State failed to preserve his trial transcript and other evidence that would exonerate him.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 1981, a Hinds County grand jury returned separate indictments against Chapman. One indictment charged him with rape; the other charged armed robbery. On January 27, 1982, a jury found Chapman guilty of rape, and the circuit court sentenced him to life imprisonment. A few months later, Chapman pled guilty to robbery without a firearm, and the court sentenced him to serve ten years’ imprisonment. Chapman never filed a direct appeal.

¶ 8. On March 21, 2005, the Innocence Project filed on Chapman’s behalf a “Motion for the Preservation and Production of Evidence.” Chapman requested the circuit court order the State to search for biological evidence relating to his rape conviction. The circuit court then ordered the University of Mississippi Medical Center, the Mississippi State Crime Laboratory, the Jackson Police Department, the Hinds County Sheriffs Office, the Hinds County District Attorney’s Office, the Jackson Police Department Crime Lab, and the Hinds County Circuit Clerk’s Office to search for biological evidence relating to Chapman’s rape prosecution. The circuit court directed each entity to provide the status and disposition of any biological evidence and to preserve such evidence until further notice. The Hinds County District Attorney’s Office responded that all evidence from Chapman’s rape case had been destroyed pursuant to an April 19, 1985, court order.

¶ 4. On December 27, 2006, Chapman filed his PCR motion, in which he alleged: (1) his “actual innocence” regarding his rape conviction; (2) the circuit court’s failure to abide by Uniform Rule of Circuit and County Court 8.04 in accepting his guilty plea; (3) the State’s failure to preserve exculpatory evidence and his trial transcript; and (4) ineffective assistance of counsel.

¶ 5. Chapman later filed an amended motion. He argued these same issues and also alleged: (1) his indictments in both the rape and robbery cases were defective; (2) the jury that convicted him of rape was not drawn from a fair cross-section of the community; and (3) he is serving an “illegal sentence.”

¶ 6. The circuit court found Chapman was not entitled to relief. It found the motion time-barred under Mississippi Code Annotated section 99-39-5(2) (Supp. 2009), with no exception applicable. Based in part on this ground, the circuit court summarily dismissed the motion without an evidentiary hearing.

¶7. On appeal, Chapman primarily argues the circuit court should have granted his motion based on the State’s alleged destruction of exculpatory evidence. He also claims the circuit court should have held an evidentiary hearing.

STANDARD OF REVIEW

¶8. We review the dismissal of PCR motions for an abuse of discretion. Felton v. State, 18 So.3d 328, 329 (¶ 4) (Miss.Ct.App.2009) (citation omitted). The trial court may summarily dismiss a PCR motion where “it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief[.]” Miss.Code Ann. § 99-39-11(2) (Supp.2009). See also State v. Santiago, 773 So.2d 921, 923-24 (¶ 11) (Miss.2000). This Court will affirm the summary dismissal of a PCR petition if the petitioner fails to demonstrate “a claim procedurally alive substantially showing the denial of a state or federal right.” Robinson v. State, 19 So.3d 140, 142 (¶ 6) (Miss.Ct.App.2009) (quoting Flowers v. State, 978 So.2d 1281, 1283 (¶ 5) (Miss.Ct.App.2008)). We review questions of law de novo. Felton, 18 So.3d at 330 (¶ 4).

DISCUSSION

¶ 9. Here, Chapman claims he is actually innocent of rape and that DNA testing of biological evidence in his case would exonerate him.

¶ 10. We note that in 2009 the Legislature amended the Mississippi Uniform Post-Conviction Collateral Relief Act (UP-CCRA). The amended UPCCRA provides a procedure for an inmate to file “a motion to request forensic DNA testing of biological evidence.” Miss.Code Ann. § 99-39-5 (Supp.2009). And section 99-39-5(l)(f) now provides an avenue for post-conviction relief if:

[TJhere exists biological evidence secured in relation to the investigation or prosecution attendant to the petitioner’s conviction not tested, or, if previously tested, that can be subjected to additional DNA testing, that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution.

Miss.Code Ann. § 99-39~5(l)(f) (Supp. 2009). These additions to the UPCCRA were effective from and after March 16, 2009. See Miss.Code Ann. § 99-39-5. Chapman filed his PCR motion on December 27, 2006, well before current section 99-39-5(l)(f) took effect. Thus, it has no application to his present motion.

¶ 11. Here, Chapman: (1) failed to provide statutorily mandated supporting affidavits and (2) offered nothing to trigger an exception to the three-year statute of limitations, which had' expired. Therefore, we find his PCR motion is procedurally barred.

I. Statutory Affidavit Requirement

¶ 12. Though a PCR motion may only challenge a single judgment, Miss.Code Ann. § 99-39-9(2) (Supp.2009), Chapman raises various alleged errors with respect to both his rape and robbery convictions. In addition to this procedural misstep, Chapman fails to support his claim with specific facts as required by statute. We analyze this deficiency first.

¶ 13. On March 16, 2009, the Legislature amended the UPCCRA to require a petitioner seeking DNA testing to provide:

[A] statement that there exists a reasonable probability that [he] would not have been convicted or would have received a lesser sentence if favorable results had been obtained through DNA testing at the time of the original prosecution; that the evidence to be tested was secured in relation to the offense underlying the challenged conviction and (i) was not previously subjected to DNA testing, or (ii) although previously subjected to DNA testing, can be subjected to additional DNA testing that provides a reasonable likelihood of more probative results; and that the chain of custody of the evidence to be tested established that the evidence has not been tampered with, replaced or altered in any material respect or, if the chain of custody does not establish the integrity of the evidence, that the testing itself has the potential to establish the integrity of the evidence. For purposes of this paragraph, evidence that has been in the custody of law enforcement, other government officials, or a public or private hospital shall be presumed to satisfy the chain-of-custody requirement, absent specific evidence of material tampering, replacement or alteration, and that the application for testing is made to demonstrate innocence or the appropriateness of a lesser sentence and not solely to unreasonably delay the execution of sentence or the administration of justice.

Miss.Code Ann. § 99 — 39—9(l)(d) (Supp. 2009). Because Chapman filed his PCR motion well before the 2009 enactment, he was not bound by these specific requirements.

¶ 14. But Chapman did have to comply with the specific requirements of section 99 — 89—9(l)(d) in effect at the time he filed his PCR motion. First, under then-existing law, Chapman had to provide “[a] separate statement of the specific facts which are within the personal knowledge of the prisoner and which shall be sworn to by the prisoner.” Miss.Code Ann. § 99-39-9(l)(d) (Rev.2007). Second, he had to include “[a] specific statement of the facts which are not within the prisoner’s personal knowledge ... [stating] how or by whom said facts will be proven.” Miss. Code Ann. § 99-39-9(l)(e) (Rev.2007) (emphasis added). Third, he was required to attach “[affidavits of the witnesses who will testify and copies of documents or records that will be offered[.]” Id. This third requirement may be excused “upon a showing ... of good cause” as to why the affidavits and documents cannot be obtained. Id.

¶ 15. Trial courts have discretion to dismiss PCR motions that fail to meet the statutory requirement of supporting affidavits. Taylor v. State, 984 So.2d 372, 373 (¶¶ 2-3) (Miss.Ct.App.2008); Winston v. State, 893 So.2d 274, 275 (¶4) (Miss.Ct.App.2005); Cooley v. State, 765 So.2d 614, 616 (¶ 7) (Miss.Ct.App.2000). Although this Court has often acknowledged that “meritorious claims of pro se petitioners will not be avoided based on inartfully drafted pleadings,” we have instructed that petitioners, even if proceeding pro se, must comply with the dictates of section 99-39-9(l)(d)-(e). Taylor, 984 So.2d at 373 (¶¶ 2-3); Winston, 893 So.2d at 275 (¶ 4).

¶ 16. Chapman’s PCR motion did include a one-page “Verification of Applicant” merely attesting that all information in his motion is true and correct to the best of his knowledge. The motion itself contained a laundry list of unsupported allegations, including that the State destroyed evidence in bad faith which, if preserved, would have proven his innocence. But Chapman failed to list specific facts based on his personal knowledge or otherwise to substantiate bad-faith destruction of evidence by the State.

¶ 17. We find Chapman’s “verification” falls far short of the statutory requirements. He offers no “good cause” or explanation for failing to include any affidavits or other supporting documentation. Because he neglected to provide statutorily mandated support for his claims, it is plain from the face of his motion that he is not entitled to any relief. See Miss.Code Ann. § 99-39-11(2). Thus, we find the circuit court acted within its discretion in summarily dismissing his PCR motion.

II. Statute of Limitations

¶ 18. Chapman’s motion is also barred by the statute of limitations. A three-year limitations period applies to any claim for relief under the UPCCRA. Miss.Code Ann. § 99-39-5(2). If the criminal defendant files a direct appeal, the statute begins to run when “the petitioner’s direct appeal is ruled upon by the Supreme Court of Mississippi.” Id If the defendant elects not to appeal directly, the statute begins to run when “the time for taking an appeal from the judgment of conviction or sentence has expired,” or in the case of a guilty plea, when the judgment of conviction was entered. Id

¶ 19. There is no question that the three-year statute of limitations had expired. Although we reiterate it is only proper for an inmate to challenge the single conviction for which he is then in custody, Burns v. State, 933 So.2d 329, 330 (¶ 6) (Miss.Ct.App.2006), we point out that Chapman’s challenges to both his rape conviction and his robbery guilty plea came over two decades too late. We must still determine whether Chapman’s PCR motion falls within one of the following exceptions:

[Tjhere has been an. intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the petitioner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.

Miss.Code Ann. § 99-39-5(2) (Rev.2007). The petitioner has the burden of proving his case falls within one of these exceptions. Id Here, Chapman fails to show that any of these exceptions apply.

¶ 20. We mention the recently enacted exception found in section 99-39-5(2)(a)(ii), which provides as follows:

[Ejven if the petitioner pled guilty or nolo contendere, or confessed or admitted to a crime, there exists biological evidence not tested, or, if previously tested, that can be subjected to additional DNA testing that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution.

Miss.Code Ann. § 99 — 39—5(2)(a)(ii) (Supp. 2009). But this provision does not apply retroactively to Chapman’s present PCR motion. Aside from his failure to show either previously tested or untested biological evidence exists, Chapman fails to meet his burden of proving newly discovered evidence or other applicable exceptions. Therefore, we find his motion is barred by the three-year statute of limitations.

III. Duty to Preserve Evidence

¶ 21. Our Legislature recently enacted a procedure for the preservation and destruction of DNA evidence. The State must retain biological evidence “in the amount and manner sufficient to develop a DNA profile from the biological material!;.]” Miss.Code Ann. § 99-49-1(3)(d) (Supp.2009). And “[a]ny evidence in a murder, manslaughter or felony sexual assault ease in the possession of the [S]tate on July 1, 2009, whether biological or not, shall be preserved by the [S]tate[.]” Miss. Code Ann. § 99-49-1(4) (Supp.2009). The UPCCRA also details under what circumstances biological evidence may be destroyed. Miss.Code Ann. § 99-49-l(3)(f)-(h) (Supp.2009). Again, this law was not in effect when evidence used in Chapman’s prosecution was ordered destroyed in 1985. Therefore, it has no application here.

¶ 22. The most pertinent Mississippi authority on this point concerns spoliation of evidence. The State has “a duty to preserve evidence ‘which might be expected to play a significant role in the suspect’s defense.’ ” Hendrix v. State, 957 So.2d 1023, 1030 (¶ 16) (Miss.Ct.App.2007) (quoting Cox v. State, 849 So.2d 1257, 1266 (¶ 24) (Miss.2003)). To prove a spoliation claim:

First, it must be determined whether the evidence would have played a significant role in the defendant’s case. To play a significant role, the exculpatory nature and value of the evidence must have been apparent before the evidence was lost. The second part of the test requires that the defendant have no way of obtaining comparable evidence by other means.... [A] third consideration is whether the [government] acted in bad faith in failing to preserve the potentially exculpatory evidence.

Id. While we are cognizant this test has perhaps only been applied in the context of the prosecution’s duty to preserve evidence before conviction, we find it helpful in resolving the issue before us.

¶ 23. Chapman contends the State destroyed evidence in his case in bad faith. However, as the State points out, it would seem that going “through the trouble of obtaining an order from the [circuit court] to permit destruction of the evidence” would negate a claim of bad faith. We tend to agree. But this assertion aside, Chapman’s bare allegation of the State’s bad-faith destruction of evidence is insufficient to warrant post-conviction relief. Thus, we find this issue lacks merit.

IV. Evidentiary Hearing

¶ 24. Finally, we reject Chapman’s argument that the circuit court should have conducted an evidentiary hearing. Where the circuit court properly grants a summary dismissal, the court need not hold an evidentiary hearing. Staggs v. State, 960 So.2d 563, 565 (112) (Miss.Ct.App.2007). The circuit court was well within its discretion in summarily dismissing Chapman’s claims under section 99-39-11(2). Therefore, this issue is without merit.

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

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

      . The record shows no responses from any of the other entities ordered to search for biological evidence.