author: LEE, C.J.,

text:
    Ronnie HARPER a/k/a Ronnie Denver Harper a/k/a Ronnie D. Harper, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01199-COA.
    Court of Appeals of Mississippi.
    Sept. 17, 2013.

      Ronnie Harper, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, C.J., BARNES and ROBERTS, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On November 14, 2011, Ronnie Harper pleaded guilty to sexual battery in Harrison County Circuit Court. The State recommended that Harper be sentenced to twenty years, with twelve years to serve and eight years suspended followed by three years of post-release supervision, all in the custody of the Mississippi Department of Corrections (MDOC). The court did not follow the recommendation, and sentenced Harper to twenty years in the custody of MDOC.

¶ 2. Harper filed his pro se petition for post-conviction relief, which the trial court denied on June 29, 2012. This appeal followed.

STANDARD OF REVIEW

¶ 3. When this Court reviews a trial court’s denial of a petition for post-conviction relief, “[w]e will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Mann v. State, 2 So.3d 743, 745 (¶ 5) (Miss.Ct.App.2009). However, we review questions of law under the de novo standard. Id.

DISCUSSION

¶ 4. Harper appeals, arguing that (1) his trial counsel was ineffective; (2) his sentence breached the plea agreement; and (3) the trial court used the wrong standard of review when it denied his petition.

I. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 5. Harper argues that his counsel was ineffective when he gave erroneous advice that led Harper to enter an involuntary and unintelligent guilty plea. Additionally, he claims that his counsel’s performance was deficient when he failed to communicate to the trial court that the plea-bargain offer of a twelve-year sentence was in return for testifying in an unrelated case.

¶ 6. To succeed on an ineffective-assistance-of-counsel claim, Harper must show that his trial counsel’s performance was deficient and that he was prejudiced by that deficiency. See McCollum v. State, 81 So.Sd 1191, 1192-93 (¶ 8) (Miss.Ct.App.2012) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Since Harper claims that his guilty plea was involuntary and unintelligent because of his trial counsel’s deficient performance, he must show that his “counsel’s errors proximately resulted in the guilty plea and, but for [his] counsel’s errors, [he] would not have entered the guilty plea.” McCollum, 81 So.3d at 1192-93 (¶ 8) (quoting Deloach v. State, 937 So.2d 1010, 1011 (¶ 5) (Miss.Ct.App.2006)).

¶ 7. Harper argues that his trial counsel told him that he would receive only a twelve-year sentence if he pleaded guilty and that he had to “go along with whatever the trial court asked him, even if that meant he had to lie.” However, this claim is contrary to the record of Harper’s plea colloquy. During the plea colloquy, the trial court advised Harper, “while ... there’s probably been some bargaining or plea negotiations between your attorney and the [S]tate’s attorney, do ... you understand that any plea bargain or plea recommendation is not a promise or a guarantee that this is the sentence you will receive in this case, Mr. Harper?” Harper informed the court that he was aware that the plea bargain was not a promise.

¶ 8. The court advised Harper that the maximum sentence for sexual battery was thirty years and a maximum fine of $10,000. The court also asked if he understood that it was under no obligation to follow the State’s recommendation and that any sentence he received would be a day-for-day sentence. Again, Harper told the court that he understood and that he was willing to proceed with his guilty plea.

¶ 9. While Harper argues to the contrary on appeal, the Mississippi Supreme Court has noted that “[s]olemn declarations in open court carry a strong presumption of verity.” Mowdy v. State, 638 So.2d 738, 743 (Miss.1994) (citations omitted). It is clear from the record that Harper understood the possible consequences of pleading guilty. The trial court was under no obligation to follow the recommendation of the State. See Rogers v. State, 811 So.2d 367, 369-70 (¶ 7) (Miss.Ct.App.2001). Additionally, Harper fails to offer any evidence that his trial counsel’s performance was deficient. This issue is without merit.

II. PLEA AGREEMENT

¶ 10. Harper also asserts that the sentence was contrary to the plea agreement. As stated above, the trial court was not obligated to follow the terms of the plea agreement. See id. Therefore, this issue is without merit.

III. STANDARD OF REVIEW

¶ 11. Harper asserts that the trial court used the wrong standard when it reviewed his petition for post-conviction relief and that the trial court abused its discretion in denying his petition without an evidentiary hearing. Harper argues his petition is entitled to “liberal construction” because he is pro se and cannot read and write.

¶ 12. Harper is correct that the Mississippi Supreme Court has stated, “where, as here, a prisoner is proceeding pro se, we take that fact into account!,] and, in our discretion, credit not so well pleaded allegations to the end that a prisoner’s meritorious complaint may not be lost because inartfully drafted.” Moore v. Ruth, 556 So.2d 1059, 1061 (Miss.1990) (internal citations omitted). However, that credit does not overcome the fact that Mississippi Code Annotated section 99 — 39—9(1) (e) (Rev.2007) requires that “[affidavits of the witnesses who will testify and copies of documents or records that will be offered shall be attached to the [petition].” Here, Harper only offers his own affidavit and a compilation of letters he sent to his trial counsel and the trial court.

¶ 13. This Court has stated that petitions for post-conviction relief “may be summarily dismissed where it plainly appears from the face of the motion, any annexed exhibits[,] and the prior proceedings in the ease that the movant is not entitled to any relief.” Johnson v. State, 101 So.3d 707, 709 (¶ 5) (Miss.Ct.App.2012) (citations and quotation marks omitted). From the face of the motion and Harper’s affidavits and letters, the trial court was not clearly erroneous in denying Harper’s petition without granting him a hearing. Therefore, this issue is without merit.

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

IRVING, P.J., BARNES, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. GRIFFIS, P.J., AND ROBERTS, J., CONCUR IN PART AND IN THE RESULT. JAMES, J., CONCURS IN PART AND DISSENTS IN PART. ISHEE, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    WELLS FARGO ADVISORS, LLC, Appellant v. Janelle PRITCHARD, Robert A. Pritchard Marital Trust and Hickory Street, LLC, Appellees.
    No. 2012-CA-00646-COA.
    Court of Appeals of Mississippi.
    Sept. 17, 2013.

      John Norman Bolus, Melinda Lucas Peevy, attorneys for appellant.
    Edward Gibson, attorney for appellees. -
    Before IRVING, P.J., CARLTON and JAMES, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Janelle Pritchard, the Robert A. Pritchard Marital Trust (“Marital Trust”), and Hickory Street LLC (collectively “Plaintiffs”) filed suit against Wells Fargo Advisors LLC (“Wells Fargo”), as the successor in interest of Wachovia Securities and A.G. Edwards Inc. and Jon Reynolds, in the Circuit Court of Jackson County. Plaintiffs alleged that Wells Fargo and one of its financial advisors, Reynolds, negligently managed and converted assets in accounts belonging to Janelle, her deceased husband, Robert A. Pritchard, and Robert’s trust accounts.

¶2. In response, Wells Fargo filed a motion to compel arbitration and for a stay pending arbitration. In its motion, Wells Fargo indicated that all of the claims asserted in Plaintiffs’ action are subject to an arbitration clause in a client agreement. Wells Fargo specifically cited the client agreement for the Marital Trust account. Reynolds joined Wells Fargo’s motion to compel arbitration.

¶ 3. Following several hearings, the trial court ultimately denied Wells Fargo’s motion to compel arbitration on the grounds that the incidents giving rise to the complaint arose before the arbitration agreement for the Marital Trust was signed and also because the arbitration agreement contained “contradictory and inconsistent statements that negatefd]” it. The record reflects that Plaintiffs allegedly acted negligently in managing the accounts at issue and wrongfully converted the funds of these accounts as early as 2006 and before the mandatory arbitration agreement was executed for one of the accounts. Even though the arbitration agreement contained language rendering the agreement applicable to controversies occurring before the execution of the agreements, the trial court found the retroactive application unenforceable.

¶ 4. Wells Fargo appeals and argues that the trial court erred in refusing to enforce the arbitration agreements set forth in Plaintiffs’ various securities-brokerage-account agreements. This Court agrees, and we reverse and remand this case to the trial court for further proceedings consistent with this opinion.

FACTS

¶ 5. Plaintiffs allege in their complaint that wrongdoing occurred with respect to four accounts beginning in February 2006. The complaint mentions accounts owned by Janelle, the Marital Trust, the Robert A. Pritchard Revocable Living Trust (“Living Trust”), and Robert and Janelle’s “joint accounts.”

¶ 6. On or around November 8, 2005, spouses Robert and Janelle opened a joint account. In connection with opening this account, on November 4, 2005, they signed an account agreement containing an arbitration provision. Robert died in May 2006, and Joseph White became the new co-trustee and, as signatory of his new trustee agreement, White agreed to mandatory arbitration.

¶ 7. The Living Trust was previously established on February 10, 2006. On November 30, 2007, White, as a new trustee, signed a “Trustee Agreement and Certification of Trust Investment Powers” form, wherein he agreed the account was subject to mandatory arbitration.

¶ 8. The Marital Trust was opened on December 3, 2007. In connection with opening this account, on November 30, 2007, White and Janelle, as co-trustees, both signed a “Trustee Agreement and Certification of Trust Investment Powers” form, which also included a mandatory-arbitration provision.

¶ 9. On January 31, 2008, Janelle signed a “Nonprobate Transfer on Death Agreement,” which was associated with her individual account and included a mandatory-arbitration provision.

¶ 10. All of the agreements referenced above contain mandatory-arbitration language that is virtually identical and include arbitration disclosures, an arbitration agreement, and an acknowledgment of receipt' of the arbitration agreement. Each account includes an arbitration-disclosure paragraph in bold type similar to the following:

Arbitration Disclosure
11. This Agreement contains a predis-pute arbitration clause. By signing an arbitration agreement, the parties agree as follows:
(A) All parties to this agreement are giving up the right to sue each other in court, including the right to a trial by jury, except as provided by the rules of the arbitration forum in which a claim is filed.
(B) Arbitration awards are generally final and binding; a party’s ability to have a court reverse or modify an arbitration award is very limited.
(C) The ability of the parties to obtain documents, witness statements and other discovery is generally more limited in arbitration than in court proceedings.
(D) The arbitrators do not have to explain the reason(s) for their award.
(E) The panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry.
(F) The rules of some arbitration forums may impose time limits for bringing a claim in arbitration. In some cases, a claim that is ineligible for arbitration may be brought in court.
(G) The rules of the arbitration forum in which the claim is filed, and any amendments thereto, shall be incorporated into this agreement.

The arbitration provision contained in all of the agreements states in bold text:

I agree and, by carrying my account, [A.G.] Edwards agrees that all controversies between me and [A.G.] Edwards or any of its present or former officers, directors, agents, or employees will be determined by arbitration. Any arbitration under this agreement will be before the National Association of Securities Dealers, Inc., the New York Stock Exchange, Inc., or an arbitration facility provided by any other securities exchange of which [A.G.] Edwards is a member.
This arbitration provision applies to any controversy arising from events that occmred before, on or after I signed this agreement.

(Emphasis added).

¶ 11. Then, directly above the signature lines on the forms for each account, an acknowledgment similar to the following appears in bold type: “By signing this agreement, I acknowledge that: ... I have received and reviewed a copy of this agreement!;] • • • [and] [t]his agreement contains a binding and enforceable predis-pute arbitration clause!.]

STANDARD OF REVIEW

¶ 12. This Court reviews a decision to grant or deny a motion to compel arbitration de novo. E. Ford, Inc. v. Taylor, 826 So.2d 709, 713 (¶ 9) (Miss.2002). “In determining the validity of a motion to compel arbitration under the Federal Arbitration Act, courts generally conduct a two-pronged inquiry.” Id. The first prong includes two considerations: “(1) whether there is a valid arbitration agreement and (2) whether the parties’ dispute is within the scope of the arbitration agreement.” Id. “Under the second prong, applicable contract defenses available under state contract law such as fraud, duress, and unconscionability may be asserted to invalidate the arbitration agreement without offending the Federal Arbitration Act.” Id. at (¶ 10) (citation omitted). The Mississippi Supreme Court has held that “[d]oubts as to the availability of arbitration must be resolved in favor of arbitration.” IP Timberlands Operating Co. v. Denmiss Corp., 726 So.2d 96, 107 (¶ 46) (Miss.1998).

DISCUSSION

¶ 13. In its only issue on appeal, Wells Fargo argues that the trial court erred in refusing to enforce the arbitration agreements set forth in various securities-brokerage-account agreements, on the grounds that (1) one of the agreements, which contains retroactive time-specific language, is not enforceable because such agreement was not signed until after the events giving rise to the claim, and (2) this agreement contains contradictory and inconsistent statements that negate the arbitration clause. After reviewing the record, we find that the trial court erred in concluding that the agreements were ambiguous because they were inconsistent, contradictory, and lacking in mutual assent, and that Plaintiffs may not be compelled to arbitrate their claims against Wells Fargo.

¶ 14. Plaintiffs allege in their complaint that events giving rise to their negligence and conversion claims began as early as February 2006. They identify the following four accounts that were allegedly potentially mishandled: Janelle’s individual account; the Marital Trust account; the Living Trust account; and the joint accounts owned by Robert and Janelle. The record shows that the trial court questioned whether the arbitration agreement in the Marital Trust was enforceable, since the arbitration agreement was executed in November 2007, which was after some of the events giving rise to the complaint. The trial court ultimately concluded that due to this timing, the arbitration agreement was unenforceable. In reaching that conclusion, however, the trial court ignored the plain language of the agreement, which states in bold type: “This arbitration provision applies to any controversy arising from events that occurred before, on or after I signed this agreement.”

¶ 15. A review of precedent reflects the enforceability of arbitration agreements that provide that arbitration applies to events occurring prior to signature, if the agreement is otherwise enforceable under contract law. For instance, in Beneficial National Bank, U.S.A. v. Payton, 214 F.Supp.2d 679, 685 (S.D.Miss.2001), Payton argued that an arbitration provision added to his cardholder contract years after he entered into the contract could not be applied retroactively to cover his complaint, which was based on alleged wrongs that predated the agreement. The Court disagreed with this proposition, noting:

As numerous courts have recognized ... if an arbitration clause contains retroactive time-specific language, e.g., a phrase reading “this agreement applies to all transactions occurring before or after this agreement,” then the court may apply the arbitration provision to events relating to past events. Or, if the arbitration clause contains language stating that it applies to “all transactions between us” or “all business with us,” then the court may apply the arbitration clause retroactively.

Id. at 688-89 (footnote omitted). As noted above, the arbitration agreement for the Marital Trust contains both the time-specific language and the “all transactions” language. Thus, we find that the trial court’s denial of Wells Fargo’s motion to compel arbitration based upon the date of execution of the Marital Trust improper.

¶ 16. Moreover, the record shows that Plaintiffs were bound by the terms of Wells Fargo’s mandatory-arbitration provision as early as November 2005 by virtue of the joint account agreement they possessed with the banking institution. The record shows that on November 4, 2005, Janelle and Robert signed an account agreement containing a mandatory-arbitration provision. Under the bold heading “About This Agreement,” it states that “[t]his Agreement ... [clovers all accounts that we have with [A.G.] Edwards at any time[;] [i]s in addition to and in no way limits any rights [A.G.] Edwards has under any other agreements between us and [A.G.] Edwards[;] [and i]s for the benefit of [A.G.] Edwards, its [successors and its assigns[.]” Beneath the bold heading “Arbitration Disclosure,” it states:

12. This Agreement contains a predis-pute arbitration clause. By signing an arbitration agreement, the parties agree as follows:
(A) All parties to this agreement are giving up the right to sue each other in court, including the right to a trial by jury, except as provided by the rules of the arbitration forum in which a claim is filed.

Under the bold heading “Arbitration Provision,” the agreement states:

I agree and, by carrying my account, [A.G.] Edwards agrees that all controversies between me and [A.G.] Edwards or any of its present or former officers, directors, agents or employees will be determined by arbitration.
This arbitration provision applies to any controversy arising from, events that occurred before, on or after I signed this agreement.

(Emphasis added). Finally, immediately above the Pritchards’ signatures, the agreement states in bold type:

By signing this agreement, we acknowledge that:
(A) We have received a duplicate of this agreement.
(C) This agreement contains a binding and enforceable predispute arbitration clause in paragraph 13 on page 2.

¶ 17. Associated with the Living Trust account is a November 30, 2007 “Trustee Agreement and Certification of Trust Investment Powers” form that White signed as trustee, wherein he agreed the account was subject to mandatory arbitration. Like the other agreements discussed herein, this one states in bold type that the agreement “applies to any controversy arising from events that occurred before, on or after I signed this agreement.”

¶ 18. As shown above, as early as November 2005, and throughout the relevant time period, Plaintiffs were bound by mandatory-arbitration provisions with Wells Fargo. The arbitration provisions Plaintiffs signed are broadly worded, clear, unambiguous, and similar to provisions routinely enforced by courts. Plaintiffs’ allegations, which are based on the assets contained within their accounts and the servicing of their accounts, are indisputably within the scope of the arbitration agreements signed. Therefore, this issue is without merit.

¶ 19. We likewise find that the trial court erroneously found the agreements contained contradictory statements that negated the arbitration agreement associated with the Marital Trust. During a hearing before the trial court, the trial court asked counsel for Wells Fargo about the use of the word “action” versus “arbitration” in the client agreement for the Marital Trust. We acknowledge, however, that the record reflects that the trial court’s order provided no identification or recitation of the terms deemed contradictory and inconsistent that the trial court found negated the client agreement.

¶ 20. As explained by Wells Fargo, however, the use of the word “action” in the client agreement was essential to address those few situations where arbitration was not available to customers. A review of the Marital Trust agreement clearly reflects that the “action” language does not, as Plaintiffs suggest, describe a scenario in which Plaintiffs are required to arbitrate, while Wells Fargo may choose between an arbitration proceeding or a judicial action. “[Ujnless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation which would cover the dispute at issue, then a stay pending arbitration should be granted.” Smith Barney, Inc. v. Henry, 775 So.2d 722, 725 (¶ 8) (Miss.2001) (citation omitted). As such, this issue is without merit.

¶ 21. Based on the foregoing, we reverse the order of the Jackson County Circuit Court denying Wells Fargo’s motion to compel arbitration and stay proceedings, and we remand this case to that court for further proceedings consistent with this opinion.

¶ 22. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

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

      . This Court pauses to note that the agreements referenced above clarify that the agreements are for the benefit of A.G. Edwards’s successors and assigns, i.e., Wells Fargo.

      . See Levine v. Merrill Lynch, Pierce, Fenner & Smith Inc., 639 F.Supp. 1391, 1397 (S.D.N.Y.1986) (noting that "[i]t is difficult to imagine language broader” than the phrase "any controversy”); Russell v. Performance Toyota, Inc., 826 So.2d 719, 723 (¶ 11) (Miss.2002) (finding that the broad language included in the arbitration agreement applied to the claims at issue).

      . "When determining whether a valid arbitration agreement exists, we employ ordinary principles of contract law.” Harrison Cnty. Commercial Lot, LLC v. H. Gordon Myrick, Inc., 107 So.3d 943, 950 (¶ 15) (Miss.2013).

      . "Mississippi has long observed a policy of favoring agreements to arbitrate, and this Court hesitates to disturb an agreement that knowledgeable and experienced parties freely enter into.” IP Timberlands, 726 So.2d at 107 (¶ 47).


text:
    Diane GASTON, Appellant v. TYSON FOODS, INC., A Self-Insurer, Appellee.
    No. 2012-WC-02018-COA.
    Court of Appeals of Mississippi.
    Sept. 17, 2013.

      Al Chadick III, attorney for appellant.
    Michael D. Young, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   LEE, C.J.,

for the Court:

¶ 1. This appeal arises from Diane Ga-ston’s claim that she is entitled to an industrial loss of use greater than the medical impairment ratings assigned by her treating physicians. The administrative judge (AJ) denied Gaston’s claim, and the Mississippi Workers’ Compensation Commission (the Commission) affirmed the AJ’s denial, with one commissioner dissenting.

FACTS AND PROCEDURAL HISTORY

¶ 2. Gaston began working for Tyson Foods Inc. in October 2003. On June 13, 2006, Gaston injured her right wrist, right elbow, and left shoulder because of the repetitive motion required for her job in the washout department. Four months after Gaston injured her wrist, elbow, and shoulder, she slipped and fell, injuring her left heel.

¶ 3. After carpal tunnel release surgery on her right wrist, Gaston was assigned a 5% permanent partial impairment rating. After surgery on her left shoulder, she was assigned an 11% permanent partial impairment rating to the upper-left extremity. This limitation was equated to a 7% permanent partial impairment rating to the body as a whole. Gaston cannot perform any sustained work at shoulder level or above, or any repetitive or sustained reaching greater than eighteen inches from the navel. Also, she cannot lift more than twenty-five to thirty pounds from the floor to her waist. Gaston had surgery on her left heel at a later date, and was assessed a 10 to 20% permanent partial impairment rating to the lower-left extremity.

¶ 4. Gaston was moved from the washout department to the gizzard table, which allowed her to sit to accommodate her heel injury. On March 17, 2010, she injured her right shoulder. After surgery on her right shoulder, Gaston was assigned a 4% permanent partial impairment rating to the upper-right extremity. She cannot lift anything greater than ten pounds overhead and cannot perform any repetitive overhead work.

¶ 5. Gaston was moved from the gizzard table to the liver table, where she continues to work. As a union employee, her average weekly wage is greater now than it was at the time of her final injury. The pay raises she received were not merit based but were consistent with those raises of her coworkers. Tyson admitted all injuries.

¶ 6. After a hearing on July 8, 2011, the AJ issued an order denying Gaston’s claim, specifically finding that Gaston was not entitled to any benefits in excess of those already paid by Tyson. Gaston appealed to the Commission. The Commission affirmed the AJ’s ruling and found that Ga-ston had not “established any additional loss of industrial use in excess of her medical ratings[,] as she is currently employed within her restrictions and earning a higher wage than her pre7injury wage.” One commissioner dissented.

STANDARD OF REVIEW

¶ 7. The standard of review in a worker’s compensation case is well settled. “The findings and order of the Workers’ Compensation Commission are binding on this Court so long as they are supported by substantial evidence.” Mitchell Buick, Pontiac & Equip. Co. v. Cash, 592 So.2d 978, 980 (Miss.1991). “We are bound even though the ‘evidence would convince the [Cjourt otherwise if it were instead the ultimate faet[-]finder.’ We will overturn [the] Commission’s decision only when there is an error of law or an unsupportable finding of fact.” Montana’s Sea Kettle Restaurant v. Jones, 766 So.2d 100, 102 (¶ 7) (Miss.Ct.App.2000) (internal citation omitted) (quoting Walker Mfg. Co. v. Butler, 740 So.2d 315, 320 (¶ 19) (Miss.Ct.App.1998)).

DISCUSSION

¶ 8. Gaston argues that the Commission’s ruling is against the overwhelming weight of the evidence, and that she is entitled to an industrial loss of use greater than the medical impairment ratings assigned by her treating physicians.

¶ 9. Mississippi Code Annotated section 71-3-17 (Supp.2012) provides compensation for employees for permanent total disability, temporary total disability, and permanent partial disability. In a permanent-partial-disability case, also called a scheduled-member case, the statute assigns a percentage of compensation for a set number of weeks to be paid to the employee. Additionally

In a scheduled-member ease, a worker is always entitled to compensation for the medical or functional loss of his body part, regardless of whether the functional loss impacts his wage-earning capacity. But the law recognizes there may be times when the industrial loss is greater than the medical loss. In these cases, the claimant’s industrial or occupational disability or loss of wage-earning capacity controls his degree of disability.

City of Laurel v. Guy, 58 So.3d 1223, 1226 (¶ 14) (Miss.Ct.App.2011) (internal citations and quotations omitted).

¶ 10. For an employee to receive an industrial disability, he must “prove (1) [a] medical impairment, and (2) that the medical impairment resulted in a loss of wage-earning capacity.” Robinson v. Packard Elec. Div., Gen. Motors Corp., 523 So.2d 329, 331 (Miss.1988). Additionally, this Court has “held loss of wage-earning capacity should be determined by considering the evidence as a whole.” Guy, 58 So.3d at 1227 (¶ 18).

¶ 11. Gaston relies on Meridian Professional Baseball Club v. Jensen, 828 So.2d 740 (Miss.2002), to support her contention that she is entitled to an industrial loss of use-namely the fact that Jensen was unable to return to his prior employment as a professional baseball player after his injury. Id. at 743 (¶ 7). Gaston asserts that she was unable to return to her work in the washout department and had to be moved twice to accommodate her injuries. We find this argument unpersuasive because Gaston has maintained her employment with Tyson through all of her injuries, and, as of the date of this appeal, she is still employed with Tyson, which has accommodated her restrictions.

¶ 12. Gaston and Tyson agree that she suffered medical impairments from the three injuries. However, Gaston fails to prove she has suffered a loss in wage-earning capacity. She testified before the AJ that her wage at the time of the hearing was more than at the time of the three injuries. It is clear from the record that the Commission’s decision was supported by substantial evidence. Therefore, we affirm.

¶ 13. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.


text:
    Kevin L. HOWELL, Appellant v. USAA CASUALTY INSURANCE COMPANY, Appellee.
    No. 2012-CA-00132-COA.
    Court of Appeals of Mississippi.
    Sept. 17, 2013.

      Thomas Quitman Brame Jr., Bay Springs, attorney for appellant.
    Nancy L. Siples Brumbeloe, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Kevin Howell appeals the dismissal of his case by the Forrest County Circuit Court. The trial court granted summary judgment in favor of USAA Casualty Insurance Company and dismissed Howell’s case after finding Howell failed to provide evidence to support his allegation that he constituted a resident of Hunstville, Alabama. Finding no error, we affirm.

FACTS

¶ 2. On May 2, 2006, Feliciana Winniford and Howell collided while driving separate vehicles on Hardy Street in Hattiesburg, Mississippi. Howell was operating a Kawasaki motorcycle and driving east on Hardy Street, and Winniford was operating a Dodge Caravan and driving north on 37th Avenue. Winniford ran the stop sign at the intersection of Hardy Street and 37th Avenue, causing Howell’s motorcycle to strike the front-left side of her van. Howell suffered a spinal-cord injury, which rendered him a paraplegic.

¶ 3. On March 24, 2009, Howell filed suit against Winniford and USAA in the Forrest County Circuit Court, alleging entitlement to the policy limits under three separate USAA liability policies: his own Mississippi policy, his mother’s Alabama policy, and his brother’s Georgia policy. Winniford could not be located and therefore did not receive service of process. Howell claimed that he owned three vehicles insured by USAA, and each policy provided $25,000 per person in uninsured-motorist (UM) coverage, for “stacked” UM policy limits of $75,000. Howell’s mother, Glenna Howell, possessed an automobile insured by USAA, with UM benefits of $20,000 per person. Howell’s brother, Trent Howell, possessed two automobiles insured by USAA, each of which provided UM bodily-injury limits of $100,000 per person, for a “stacked” $200,000 UM coverage.

¶ 4. Howell argued that in addition to being a resident of Forrest County, Mississippi, he maintained residences at Glenna’s home in Huntsville, Alabama, and Trent’s home in Douglasville, Georgia, and therefore qualified as a covered insured under their auto-insurance policies, as well as his own. USAA eventually paid $75,000 for the three “stacked” vehicles on the Mississippi policy upon which Howell was named insured, leaving only the Alabama and Georgia policies before the court. USAA denied that Howell met the definition of an insured for UM purposes under both Glenna’s and Trent’s policies.

¶ 5. On April 30, 2010, USAA filed a motion for summary judgment, disputing Howell’s claim that he was a resident of either Glenna’s home or Trent’s home. Specifically, USAA pointed to facts from Howell’s deposition that established him as a long-time Mississippi resident. Arguments on the motion were heard on August 27, 2010. On September 3, 2010, Howell filed a motion seeking leave to file his first amended complaint to add an allegation that Trent was also a resident of the Huntsville, Alabama home. Howell’s motion was noticed for hearing four times but postponed each time due to conflicts with the court or counsel for one of the parties. The motion was heard on August 26, 2011. At the hearing, the trial court granted USAA’s motion for summary judgment and denied Howell’s motion to amend. On November 2, 2011, the trial court entered its order granting summary judgment in favor of USAA and dismissing Howell’s case with prejudice. Howell now appeals.

STANDARD OF REVIEW

¶ 6. On appeal, this Court applies a de novo standard of review to a grant of summary judgment by the trial court. Russell v. Orr, 700 So.2d 619, 622 (¶ 8) (Miss.1997). Mississippi Rule of Civil Procedure 56(c) provides that summary judgment shall be granted by a court “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).

¶ 7. The moving party has the burden of demonstrating that there is no genuine issue of material fact in existence, while the nonmoving party “should be given the benefit of every reasonable doubt.” Tucker v. Hinds Cnty., 558 So.2d 869, 872 (Miss.1990). “Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite.” Id. As explained in Karpinsky v. American National Insurance Co., 109 So.3d 84, 88 (¶ 10) (Miss.2013), “the party opposing summary judgment may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial.” (Quotation marks omitted). If the party opposing summary judgment fails to respond, summary judgment will be entered against him “if appropriate.” Id. Additionally,

in a summary judgment hearing, the burden of producing evidence in support of, or in opposition to, the motion is a function of Mississippi rules regarding the burden of proof at trial on the issues in question. The movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to judgment as a matter of law. The movant bears the burden of production if, at trial, he would bear the burden of proof on the issue raised. In other words, the mov-ant only bears the burden of production where [he] would bear the burden of proof at trial. Furthermore, summary judgment is appropriate when the non-moving party has failed to make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial.

Id. at 88-89 (¶ 11) (internal citations and quotation marks omitted). The evidence must be viewed in the light most favorable to the nonmoving party. Russell, 700 So.2d at 622 (¶ 8).

¶ 8. When reviewing a trial judge’s decision to deny a motion to amend under Mississippi Rule of Civil Procedure 15, we will not reverse the decision unless the trial judge abused his discretion. Simmons v. Thompson Mach. of Miss., Inc., 631 So.2d 798, 800-01 (Miss.1994).

DISCUSSION

I. Summary Judgment

¶ 9. Howell argues that the trial court erred in granting summary judgment since a question of material fact exists: whether Howell constituted a member of Glenna’s household at the time of his accident. Howell submits that USAA failed to meet its burden of proof on summary judgment. Howell asserts that he constitutes a “family member” and “resident” under the terms of both Trent’s and Glenna’s policies, and therefore he is entitled to receive benefits under the policies.

¶ 10. The policy at issue, written in Alabama, listed Glenna as the named insured. Under “Part C — Uninsured Motorist Coverage,” “covered person” is defined as “you or any family member.” Under the general-definitions portion of the policy, “family member” is defined as “a person related to you by blood, marriage[,] or adoption who is a resident of your household.” Howell and USAA do not dispute that Howell is the biological son of Glenna and therefore constitutes a “family member” under the definition of the policy. The ultimate issue for this Court is whether Howell constituted a resident relative for the purposes of coverage under Glenna’s policy. Both parties agree that Alabama law applies to the interpretation of Glenna’s policy.

¶ 11. Here, the trial court held that it was required to grant the motion for summary judgment “because under the law [Howell] is neither a resident relative of his mother’s home [in Alabama] or his brother’s home [in Georgia].” In support of his claim that he constitutes a resident of Huntsville, Howell cites to the Alabama Supreme Court case of Mathis v. Employers Fire Insurance Co., 399 So.2d 273, 275 (Ala.1981), wherein the Alabama Supreme Court explained that the term “resident” is ambiguous and vague. The Alabama Supreme Court has also stated that when ambiguous terms are used in an insurance policy, questions with those terms are to be resolved in favor of finding coverage for the insured. Davis v. State Farm Mut. Auto. Ins. Co., 583 So.2d 225, 230 (Ala. 1991). Howell asserts that he is a co-owner of the family home on 8020 Lauder-dale Road in Huntsville, Alabama. Howell states that he maintains a separate bedroom in the house, and embraces it as his home.

¶ 12. However, Howell also acknowledges that he has a residence in Hatties-burg, Mississippi, and he states that he keeps personal items at both the Huntsville and Hattiesburg residences. Howell explains that he never bought a home in Hattiesburg, but rather splits his time between the homes of his two grandmothers. Howell’s deposition reflects that he moved to Hattiesburg from Huntsville upon graduation from high school in 1987. After completing his undergraduate degree, Howell remained in Hattiesburg, where he worked and pursued a graduate degree. In August 1998, Howell moved to Florida, where he remained until May or June of 1999, and then he returned to Hattiesburg. Howell worked at Clear Channel Communications in Hattiesburg through the time of his 2006 accident and the pendency of his lawsuit. When Howell’s parents divorced in 1992, he and Trent assumed ownership of their father’s interest in the family home in Huntsville, Alabama, in order to help their mother financially. At the time of his accident, Howell possessed a Mississippi driver’s license; was registered to vote in Mississippi; and paid taxes as a Mississippi resident.

¶ 13. USAA asserts that the only evidence Howell presented relating to his and Trent’s ownership in the Huntsville home, and their alleged residence there, was Howell’s September 29, 2009 deposition testimony. USAA states that Howell failed to offer any affidavit, testimony, or other supporting evidence from either Glenna or Trent in support of his allegations that he and Trent own, or reside in, Glenna’s Huntsville residence, and as a result, the trial court did not err in granting summary judgment in favor of USAA.

¶ 14. The Alabama Supreme Court has held that in order “to be a ‘resident’ of a named insured’s household!,] an individual must be more than a temporary or transient visitor, and must actually live with others in the same household for a period of some duration.” Rice v. State Farm Fire & Cas. Co., 628 So.2d 582, 584 (Ala.1993) (citing Mathis, 399 So.2d at 275). The Mathis court provided a test to determine whether a party intends a residence to be temporary or permanent: “whether there is physical absence coupled with an intent not to return.” Mathis, 399 So.2d at 275.

¶ 15. In the present case, the facts in the record reflect that Howell did not intend to live with Glenna. The facts also demonstrate that Howell maintained a separate residence in Mississippi and intended to reside in Mississippi. See also Mercer v. Progressive Gulf Ins. Co., 885 So.2d 61, 66-67 (¶ 22) (Miss.2004). The record shows that Howell lived in Mississippi for approximately nineteen years before the accident, only returning to Alabama for brief visits. Additionally, USAA submits that no Alabama authority exists to suggest either that Howell’s part ownership in Glenna’s home makes him a resident of Alabama, or that Howell living with his grandmother, rather than renting or owning a place, affects his residence in Mississippi.

¶ 16. Our supreme court has held that “where there exists no genuine issues of material fact as to whether a person is considered a ‘resident’ pursuant to an insurance policy, summary judgment is proper.” Id. at 67 (¶ 23). After reviewing the record, we find the evidence and deposition testimony reflects a “physical absence [by Howell] coupled with an intent not to return” to Huntsville. Mathis, 399 So.2d at 275. Accordingly, we find no genuine issue of material fact exists as to whether Howell constitutes a resident relative for the purposes of coverage under Glenna’s policy, and we thus affirm the trial court’s grant of summary judgment and dismissal of Howell’s complaint with prejudice. See M.R.C.P. 56(c).

II. Motion to Amend Complaint

¶ 17. Howell next argues that the trial court erred by denying his motion to amend his complaint to add that his brother, Trent, constituted a resident of the Huntsville, Alabama home owned by Howell, Glenna, and Trent. In denying Howell’s motion, the trial court explained that “it doesn’t matter whether [Trent] is a resident relative in the Alabama house. The issue is whether [Howell] is a resident relative in Alabama.”

¶ 18. Mississippi Rule of Civil Procedure 15(a) provides that “a party may amend a pleading only by leave of court or upon written consent of the adverse party; leave shall be freely given when justice so requires.” The supreme court has said that an application to amend a pleading should be made promptly and not be the result of a lack of diligence. TXG Intrastate Pipeline Co. v. Grossnickle, 716 So.2d 991, 1011 (¶ 57) (Miss.1997) (citing Natural Mother v. Paternal Aunt, 583 So.2d 614, 616-17 (Miss.1991)).

¶ 19. Howell asserts that no inappropriate reason exists for the requested amendment. However, USAA submits that the record reflects that Trent and Howell purchased their father’s share of the family residence during their parents’ 1992 divorce. USAA disputes Howell’s September 2010 claim that his counsel “only recently realized” that Howell could argue entitlement to benefits under Trent’s policy by asserting that Trent was a resident of the Huntsville home, stating that Howell’s counsel was present for Howell’s September 29, 2009 deposition divulging Trent’s alleged part ownership of the home. The transcript reflects that Howell’s counsel provided no evidence that Trent constituted a resident of the Huntsville home other than his part ownership of the home. Howell’s counsel admitted at the hearing that “the extent of the involvement of [Trent] in the home he owns in Alabama with [Glenna] and [Howell] ... hasn’t been explored at all.”

¶ 20. Accordingly, we find no abuse of discretion in the trial court’s denial of Howell’s motion to amend his complaint. See Simmons, 631 So.2d at 800-01.

¶ 21. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING, P.J., BARNES, ISHEE AND ROBERTS, JJ., CONCUR. GRIFFIS, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. MAXWELL AND FAIR, JJ., NOT PARTICIPATING.

      . In Merrimack Mutual Fire Insurance v. McDill, 674 So.2d 4, 8 (Miss.1996), the Mississippi Supreme Court determined that summary judgment was improper where an issue of material fact remained in dispute as to whether Brown, a 28-year-old adult, was a member of his parents' household for homeowner-insurance purposes. Brown lived in a garage apartment located in a separate building on his parents' property, ate numerous meals at his parents' house, received his mail at his parents' house, and had specific rules to follow, that were implemented by his parents, while living in the garage. Id.


text:
    Jimmy Newton PRUITT, III a/k/a Jimmy Pruitt a/k/a Jimmy Pruitt, III, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01309-COA.
    Court of Appeals of Mississippi.
    Sept. 17, 2013.

      Hunter Nolan Aikens, attorney for appellant.
    Office of the Attorney General by Elliott George Flaggs, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. An Issaquena County jury convicted Jimmy Pruitt of possession of a cell phone within a correctional facility following a trial in the Issaquena County Circuit Court. The circuit court sentenced Pruitt to ten years in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended and five years to serve, followed by five years of post-release supervision. Aggrieved by the jury verdict and sentence of the circuit court, Pruitt appeals, raising the following assignments of error: (1) the verdict is against the overwhelming weight of the evidence, and (2) the prosecution imper-missibly shifted the burden of proof to Pruitt and expressed personal opinions as to Pruitt’s guilt during its closing argument. Finding no error, we affirm.

FACTS

¶ 2. On April 14, 2011, Officer Annie Johnson, chief of operations at the Is-saquena County Correctional Facility (ICCF), informed security and supervising officers Lieutenant Michael Green and Sergeant Ronald Reed that she believed that Pruitt, an inmate in the facility, possessed a cell phone. Officer Johnson asked the officers to retrieve the phone from Pruitt. The officers located and frisked Pruitt, and while doing so, observed a black cell phone drop out of his pants to the ground. The officers retrieved the phone and gave it to Officer Johnson.

¶ 3. Officer John Hunt from ICCF’s criminal investigation division extracted all of the phone calls, text messages, and pictures sent or received from the phone. Officer Hunt testified that the majority of phone calls and text messages found in the phone were to numbers from a call list of Pruitt’s cellmate, Antonio Anderson. However, a twenty-two minute phone call was also placed to a number on Pruitt’s call list.

¶ 4. A grand jury before the Issaquena County Circuit Court subsequently indicted Pruitt of possessing a cell phone within a correctional facility in violation of Mississippi Code Annotated section 47-5-193 (Supp.2012). Pruitt testified at trial that he never possessed a cell phone in the facility. A jury in the Issaquena County Circuit Court convicted Pruitt of the crime charged. The trial court then sentenced Pruitt to ten years in the custody of the MDOC, with five years suspended and five years to serve, followed by five years of post-release supervision. Pruitt now appeals.

DISCUSSION

I. WEIGHT OF THE EVIDENCE

¶ 5. Pruitt argues that the verdict is against the overwhelming weight of the evidence. He asserts that the overwhelming weight of the evidence indicates that the State failed to prove beyond a reasonable doubt that Pruitt possessed the cell phone confiscated in the correctional facility.

¶ 6. Appellate courts review a trial court’s decision to deny a motion for a new trial utilizing an abuse-of-discretion standard of review. Simpson v. State, 993 So.2d 400, 410 (¶ 35) (Miss.Ct.App.2008). When considering a challenge to the weight of the evidence, the verdict will only be disturbed “when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). See URCCC 10.05.

¶ 7. A jury before the Issaquena County Circuit Court convicted Pruitt under Mississippi Code Annotated section 47-5-193, which states that “[i]t is unlawful for any ... person or offender to possess, furnish, attempt to furnish, or assist in furnishing to any offender confined in this state any ... cell phone.... ” Sergeant Reed and Lieutenant Green testified that they received instructions from Officer Johnson to confiscate a cell phone in Pruitt’s possession. After entering Pruitt’s cell, Sergeant Reed conducted a search of Pruitt while Lieutenant Green observed. Both officers testified that while frisking Pruitt, they observed a black cell phone fall out of Pruitt’s pants to the floor. Officer Reed retrieved the phone. Testimony also revealed that a twenty-two minute phone call was placed from the phone to one of Pruitt’s family members.

¶ 8. While Pruitt’s testimony contradicts the evidence presented by the State, we have held that “the jury is the sole judge of the weight of the evidence and the credibility of the witnesses.” Johnson v. State, 101 So.3d 717, 723 (¶ 23) (Miss.Ct. App.2012). “Conflicts in the evidence are for the jury to resolve.” Id: After reviewing the record, we find that the overwhelming weight of the evidence supports the jury’s verdict. This issue is without merit.

II. CLOSING ARGUMENTS

¶ 9. Pruitt argues that the State’s closing argument impermissibly shifted the burden of proof from the State to Pruitt and improperly offered personal opinions on Pruitt’s guilt. Specifically, Pruitt claims that the State made the following remarks in closing arguments: (1) Pruitt had to give some type of defense and had to give some kind of reason why he did not have possession of the cell phone, and (2) Pruitt was guilty beyond a reasonable doubt and if the evidence that the State provided was not beyond a reasonable doubt, nothing is.

¶ 10. The record shows that Pruitt failed to make a contemporaneous objection during the State’s closing argument. The failure to make a contemporaneous objection waives an issue for purposes of appeal. Hollins v. State, 99 So.3d 237, 239 (¶ 5) (Miss.Ct.App.2012). As such, this issue is waived from our review on appeal.

¶ 11. Notwithstanding the procedural bar, we find no merit to Pruitt’s argument. “The purpose of a closing argument is to fairly sum up the evidence and to point out those facts presented by the [S]tate on which the prosecution contends a verdict of guilty would be proper.” Sheppard v. State, 777 So.2d 659, 661 (¶ 7) (Miss.2000). Attorneys are permitted “wide latitude in arguing their cases to the jury.” Id.

¶ 12. “The State is entitled to comment on the lack of any defense, and such comment will not be construed as a reference to the defendant’s failure to testify by innuendo and insinuation.” Crutcher v. State, 68 So.3d 724, 728 (¶ 6) (Miss.Ct.App.2011). Here, Pruitt testified at trial; therefore, the State’s comments were not in reference to his right not to testify. Additionally, this Court has stated that “it is wholly permissible for a prosecutor to comment upon the weight and sufficiency of the evidence presented by the State.” Whitlock v. State, 941 So.2d 843, 846 (¶ 9) (Miss.Ct.App.2006).

¶ 13. Lastly, we recognize that even if a prosecutor makes an erroneous comment, it is deemed harmless beyond a reasonable doubt if “the evidence of guilt is so overwhelming that the jury would have returned a guilty verdict in spite of the prosecutor’s comment.” Crutcher, 68 So.3d at 728 (¶ 6). As stated, two correctional officers testified that they observed the cell phone drop from Pruitt’s pants to the floor during the search. Thus, even if the prosecutor’s statements were erroneous, we deem the comments harmless because the evidence is overwhelming against Pruitt. This issue is without merit.

¶ 14. THE JUDGMENT OF THE IS-SAQUENA COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF A CELL PHONE IN A JAIL OR CORRECTIONAL FACILITY AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS SUSPENDED AND FIVE YEARS TO SERVE, FOLLOWED BY FIVE YEARS OF POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ISSAQUE-NA COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR.


author: IRVING, P.J.,

text:
    Bill PERSON, Appellant v. DENBURY ONSHORE, LLC, A Delaware Limited Liability Company, Appellee.
    No. 2012-CA-00390-COA.
    Court of Appeals of Mississippi.
    Sept. 17, 2013.

      Wayne Dowdy, Magnolia, Dunbar Watt, attorneys for appellant.
    William F. Blair, Eric L. Patterson, Jackson, attorneys for appellee.
    Before IRVING, P.J., CARLTON and JAMES, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. Bill Person sued Denbury Onshore LLC (Denbury) to recover certain royalties allegedly due him. The Pike County Chancery Court, finding that Person’s claims were subject to res judicata and were barred by the statute of limitations, entered a final judgment of dismissal in favor of Denbury. Person filed a motion for reconsideration, which the chancery court denied. Feeling aggrieved, Person appeals and argues that the chancery court erred in finding that his claims were barred by res judicata and the statute of limitations.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. In 1958, R.C. Crabb Jr. transferred his mineral interests and right to royalty payments in certain lands located in Pike County, Mississippi, to W.A. Livingston. In 1982, Livingston transferred the mineral interests and right to royalty payments, which he had acquired from Crabb, to Barry Cooper. One month after this conveyance, Cooper sold a portion of his interests to Person, the appellant. Person allegedly acquired the remainder of Cooper’s mineral interests from Cooper’s widow, Bessie Mae Cooper, in 1998. All of Person’s mineral interests in Pike County are “derived from, and described in, the transfer from [Crabb] to [Livingston].”

¶ 4. Included in the mineral interests that Person acquired from the Coopers are oil fields known as Little Creek Field Unit (Little Creek), West Little Creek Field Unit (West Little Creek), and West Lazy Creek Field Unit (West Lazy Creek), all of which are located in Pike County. In 1985, Shell Oil leased Person’s mineral interests in Little Creek and began making royalty payments to him. Shell Oil sold its interests in Little Creek to the J.P. Oil Company in 1996. J.P. Oil continued to tender royalty payments to Person until it sold its interests in Little Creek to Den-bury in 1998. Denbury tendered monthly royalty payments to Person until July 2007, when Denbury suspended Person’s royalty payments because the Crabb-to-Livingston conveyance allegedly failed to contain sufficient “words of grant.” Therefore, according to Denbury, Person did not have a valid interest in Little Creek.

¶ 5. In 2001 and 2002, Person leased his mineral interests in West Little Creek and West Lazy Creek to Denbury, respectively, signing a total of three leases that allowed Denbury to drill on each plot that Person owned in West Little Creek and West Lazy Creek. Person alleges that Denbury fraudulently induced him into signing these leases, as Denbury intended to immediately suspend any royalty payments owed to Person as a result of his mineral interests in West Little Creek and West Lazy Creek. However, Person received royalty payments for his interests in West Little Creek and West Lazy Creek until 2007.

¶ 6. In January 2008, Person filed suit, Cause No. 2008-18 (Person I), against Denbury in the Pike County Chancery Court, alleging that Denbury “wrongfully suspended [his] royalty payments” for his interests in Little Creek, West Little Creek, and West Lazy Creek. Denbury claimed that the Crabb-to-Livingston conveyance was ineffective. Person charged Denbury with bad faith, a violation of trust, and breach of contract; and he sought a declaratory judgment that the Crabb-to-Livingston conveyance was valid. He also sought an accounting of all monies owed to him on his leased mineral interests. Person attached the 2007 suspension letter from Denbury to his complaint.

¶ 7. On March 31, 2008, the chancery court entered an agreed order directing Denbury to

deposit into the registry of the [c]ourt ... the royalty funds in its possession attributable to the interests claimed by [Person].... Denbury shall thereafter, on a monthly basis, deposit into the [r]egistry of the [c]ourt accrued royalty attributable to the interest claimed by [Person],

On August 28, 2008, the chancery court entered an “Agreed Final Judgment With Prejudice,” declaring that the Crabb-to-Livingston conveyance was valid and directing that all royalty payments held in suspense by Denbury or paid into the court’s registry be released to Person. The order also included a clause which stated

that this matter thereafter be fully and finally dismissed with prejudice as to Person and Denbury and the Bank of America, as Trustee of the successors-in-interest to R.C. Crabb, Jr., their successors and assigns, as to all claims and causes of action asserted, or that could have been asserted, in this litigation.

(Emphasis added). On that same day, Person filed a “Notice of Cancellation of Oil, Gas[,] and Mineral Leases,” claiming that his leases with Denbury were can-celled pursuant to the 2007 suspension letter. Person collected the monies that Denbury had deposited into the court’s registry pursuant to the March 2008 order. He also claimed the monies that escheated to the State of Mississippi because Den-bury lacked information to determine the true owners of tracts 106 and 122 located within the Little Creek field. After entry of the agreed final judgment, Denbury resumed tendering royalty payments to Person. However, Person declared that he was entitled to one hundred percent of the production proceeds from the oil fields, refused to cash the royalty checks, and returned them to Denbury. Denbury subsequently tendered the payments to the registry of the chancery court.

¶ 8. Person filed a second lawsuit, Cause No. 2008-582 (Person II), on October 22, 2008, alleging that Denbury had failed to pay “all monies attributable to [Person’s] complete mineral interest ownership, which had been held in suspense and ... should have been paid to [Person] under the terms of the [ajgreed [f]inal Judgment of [dismissal [w]ith [prejudice.” Person also claimed that Denbury had fraudulently induced him into signing the leases covering his interests in West Little Creek and West Lazy Creek. He requested an accounting from Denbury regarding all of the mineral interests that he had leased to Denbury.

¶ 9. On November 9, 2010, the chancery court entered an order requiring Denbury to provide a statement of accounting revealing “the manner in which Denbury calculates Person’s royalty interests” and illustrating monthly royalty payments tendered to Person or to the court’s registry. According to the order, if Person disagreed with Denbury’s accounting, he was to “state with particularity ... why the specific ... royalty entry [was] inaccurate.” After receiving the accounting statement from Denbury, Person summarily claimed that the leases were cancelled in 2007, thus making the entire statement of accounting incorrect.

¶ 10. The chancery court determined that Person’s second complaint was barred by the final judgment in Person I because his second complaint is “based and reifies] on factual matters that occurred prior to the entry of the [judgment in Person I], and are related to the same [ljeases, title defects, lands, [fjields, and royalty pay-mentsfi]”

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 12. It is well settled that appellate courts apply a de novo standard of review to a chancery court’s grant of summary judgment. Harrison v. Chandler-Sampson Ins., Inc., 891 So.2d 224, 228 (¶ 11) (Miss.2005). Summary judgment is appropriate “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 party against whom the motion is made “may not rest upon the mere allegations or denials of the pleadings, but instead ... must set forth specific facts showing that there is a genuine issue for trial.” Harrison, 891 So.2d at 228 (¶ 11) (citing Miller v. Meeks, 762 So.2d 302, 304 (¶3) (Miss.2000)). The summary-judgment evidence is viewed in the light most favorable to the nonmoving party. Id.

¶ 13. Denbury attached to its motion for summary judgment thirty-two eviden-tiary documents, which included, among other things, excerpts from Person’s depositions; copies of the correspondence between Denbury and Person; a copy of the check that Person received pursuant to the final judgment in Person I; and a copy of the complaint and amended complaints filed during Person I. In response, Person submitted his responses to certain interrogatories propounded by Denbury, letters from Denbury, and copies of the leases between Denbury and Person.

¶ 14. Person admitted during his deposition that his first amended complaint in Person I included the West Little Creek and West Lazy Creek properties. He also stated that, pursuant to the final judgment in Person I, Denbury sent him a check reflecting the suspended royalty payments that accrued under those leases, as the royalty payments for West Little Creek and West Lazy Creek were not covered by the March 2008 order. He stated that he refused to cash the check because he thought that Denbury owed him more money.

I. Res Judicata

¶ 15. The chancery court determined that Person’s claims in Person II were barred by the doctrine of res judi-cata. Person claims that res judicata is inapplicable in this case because his complaint in Person I only sought a declaratory judgment that the original conveyance of mineral interests was valid and that he was entitled to the suspended royalty payments regarding his mineral interests in Little Creek. He also asserts that the final judgment in Person I did not cover his right to the suspended royalty payments regarding West Little Creek and West Lazy Creek, which is the subject matter of Person II. We disagree, as our review of the record indicates otherwise.

¶ 16. “Res judicata is fundamental to the equitable and efficient operation of the judiciary and reflects the refusal of the law to tolerate a multiplicity of litigation.” Harrison, 891 So.2d at 232 (¶ 23) (quoting Little v. V & G Welding Supply, Inc., 704 So.2d 1336, 1337 (¶ 8) (Miss.1997)) (internal quotation marks omitted). Res judicata has two functions: it precludes the re-litigation of claims that were actually litigated in a previous action, and it prevents the subsequent litigation of any claims that should have been litigated in a previous action. Id. at (¶ 22). The Mississippi Supreme Court has held that “when a court of competent jurisdiction enters a final judgment on the merits of an action, the parties or their privies are precluded from re-litigating claims that were decided or could have been raised in that action.” Id. (quoting Miss. Dep’t of Human Servs. v. Shelby, 802 So.2d 89, 95 (¶ 24) (Miss.2001)) (internal quotation marks omitted).

¶ 17. Our supreme court has further clarified that

[f]or the bar of res judicata to apply in Mississippi^] there are four identities which must be present: (1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom the claim is made.... [T]he absence of any one of the elements is fatal to the defense of res judicata.

Id. at (¶ 24) (internal citations omitted).

¶ 18. The four identities are present in this case. The complaints in Person I and Person II cover the same subject matter— Person’s leased mineral interests in Little Creek, West Little Creek, and West Lazy Creek. Also, the parties involved in Per son I and Person II are identical, and the character of the parties has not changed since the agreed final judgment in Person I. Regarding the second identity — the identity of the cause of action — our supreme court has stated that “[i]n order for res judicata and the ban on claim-splitting to take effect, the litigation must involve the same claim premised upon the same body of operative fact as was previously adjudicated.” Id. at 234 (¶ 31).

¶ 19. While Person does not seek a declaratory judgment that he is the rightful owner of the mineral interests that he has leased to Denbury, his claims for royalty payments are based on the same facts that were litigated in Person I. In the agreed final order from Person I, the court not only declared that Person was the rightful owner of the mineral interests that he leased to Denbury, it also directed Den-bury to release the suspended royalty payments for Little Creek, West Little Creek, and West Lazy Creek. During his deposition, Person admitted that the agreed final order addressed the suspended royalty payments for all of his mineral interests— including his interests in West Little Creek and West Lazy Creek. Therefore, Person’s claims in Person II were litigated and resolved by the court in Person I.

¶ 20. Additionally, res judicata bars any issues that Person raised in Person II that he should have and could have raised in Person I. In Person II, Person contended that Denbury had miscalculated the royalties owed to him. However, in Person I, Person and Denbury agreed that Person held a 0.00045787 percent royalty interest in West Lazy Creek, a 0.00757480 percent royalty interest in West Little Creek, and a 0.00054031 percent royalty interest in Little Creek. It is undisputed that Person’s royalty payments were based on these percentages.

¶ 21. Further, even though Person claims, in Person II, that the leases had been cancelled pursuant to the 2007 suspension letter from Denbury — entitling him to larger royalty payments — when Denbury challenged the validity of those same leases in Person I, Person never intimated that the leases were no longer valid in the face of the 2007 suspension letter from Denbury, even though he had attached the letter to his complaint. Person should have addressed this issue prior to the agreed final judgment in Person I and certainly before accepting the royalty payments. The facts relevant to a decision on these issues were known to Person prior to the complaint filed in Person I and were litigated, determined, and foreclosed by the judgment from Person I. Accordingly, the issues that Person raises in Person II are barred by res judicata. This issue is without merit.

II. Statute of Limitations

¶ 22. When Person filed his amended complaint in Person II, he alleged that Denbury had fraudulently induced him into signing the leases covering his mineral interests in West Little Creek and West Lazy Creek. Person signed the leases covering West Little Creek in 2001, and he signed the lease covering West Lazy Creek in 2002. “In Mississippi[,] a claim of fraud has a three-year statute of limitations[.]” Sanderson Farms Inc. v. Ballard, 917 So.2d 783, 789 (¶ 29) (Miss.2005). (quoting Stephens v. Equitable Life Assur. Society of U.S., 850 So.2d 78, 82 (¶ 12) (Miss.2003)). Our supreme court has held that “a fraud claim accrues upon ... the consummation of the fraud.” Id. at (¶ 30) (quoting Dunn v. Dent, 169 Miss. 574, 577, 153 So. 798, 798 (1934)) (internal quotation marks omitted).

¶ 23. The chancery court correctly determined that the three-year limitations period applied to Person’s fraud claims against Denbury and that Person’s causes of action accrued when Person discovered, in 2002 and 2004, that the fields were producing oil. Person had three years from those dates to initiate a claim against Denbury alleging fraudulent inducement. The statute of limitations on Person’s claims expired in 2005 and 2007, respectively.

¶ 24. However, Person alleges that Denbury’s fraudulent concealment tolled the statute of limitations. In Sanderson Farms, our supreme court stated that

[i]n order to establish fraudulent concealment, there must be shown some act or conduct of an affirmative nature designed to prevent and which does prevent discovery of the claim.... [I]n cases with a claim of fraudulent concealment[,] there exists a two-fold obligation to demonstrate that (1) some affirmative act or conduct was done and prevented discovery of a claim, and (2) due diligence was [performed] on [the plaintiffs] part to discover it.

Sanderson Farms, 917 So.2d at 790 (¶ 33) (Miss.2005) (internal citations and quotation marks omitted). Here, Person has failed to allege and/or demonstrate any affirmative act taken by or on behalf of Denbury to conceal its alleged fraud. Also, the facts that Person alleges that Denbury concealed from him were a part of public record, and this Court has stated that “the doctrine of concealed fraud will not toll the statute of limitations where the instrument is recorded as a matter of public record.” McWilliams v. McWilliams, 970 So.2d 200, 203 (¶ 9) (Miss.Ct.App.2007) (citing Carder v. BASF Corp., 919 So.2d 258, 262 (¶ 14) (Miss.Ct.App.2005)). Den-bury’s production records were matters of public record that Person could have reviewed at any time to determine if there was production in the fields and if he was owed additional royalties. Therefore, not only is Person’s claim procedurally barred by the statute of limitations, the claim is without merit as well.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . This order covered only the royalty payments that were due under the Little Creek lease, as, at this time, Person had not amended his complaint to cover West Little Creek and West Lazy Creek.

      . Person collected these royalty payments from the chancery court clerk pursuant to an agreed order entered on December 5, 2011, covering royalty payments due under the West Little Creek and West Lazy Creek leases.


author: JAMES, J.,

text:
    Lakoski Kedale FULTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01188-COA.
    Court of Appeals of Mississippi.
    Sept. 17, 2013.
    ■ Edmund J. Phillips Jr., Newton, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Following a jury trial, Lakoski Ke-dale Fulton was convicted of armed robbery in the Neshoba County Circuit Court. On appeal, Fulton raises one issue: whether the trial court erred in overruling his objection to a leading question by the State. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On August 31, 2011, Fulton was indicted for armed robbery. A jury trial was held on July 9, 2012. During the State’s case-in-chief, the following exchange between the district attorney and one of the victims took place on direct examination:

Q: Tell us about being approached. What happened?
A: It was two guys, one was on the driver’s side and one came over on the passenger side, and they told me, “Give me your money.”
Q: They said, “Give me your money.” Did they threaten you in any way?
A: Yeah. They said, “Give it to me or you die.”
Q: Did they have any kind of weapon?
A: A pistol.
Q: Can you describe what the pistol looked like?
A: It was a revolver.

¶ 3. Later, during the State’s redirect examination of the same witness, testimony regarding the weapon used during the robbery was elicited again:

Q: Did these individuals who robbed you have a pistol?
A: A pistol, yes, sir.

Fulton objected to the form of the question as leading. The trial court overruled the objection. At the conclusion of trial, Fulton was found guilty of armed robbery, and was sentenced to serve ten years in the custody of the Mississippi Department of Corrections. Fulton now appeals.

DISCUSSION

¶ 4. Fulton argues that the trial court abused its discretion by overruling his objection to the State’s leading question on redirect examination. Fulton cites Mississippi Rule of Evidence 611(c), which states:

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

“Generally, the decision to allow leading questions rests within the sound discretion of the trial court and will not be disturbed absent a showing of an abuse of discretion.” Parks v. State, 930 So.2d 383, 387 (¶ 9) (Miss.2006) (citing McFarland v. State, 707 So.2d 166, 175 (Miss.1998)). Further, “[t]he use of leading questions is not ground for reversal unless the trial court abused its discretion, and the decision resulted in ‘substantial’ injury to the appealing party.” Osborne v. State, 54 So.3d 841, 845 (¶ 16) (Miss.2011) (citing Whitlock v. State, 419 So.2d 200, 203 (Miss.1982)).

¶ 5. We find no abuse of discretion in the trial court’s decision to overrule Fulton’s objection, as the decision did not result in substantial injury to Fulton’s case. The testimony regarding the pistol had already been elicited from the same witness prior to the allegedly leading question. This issue is without merit.

¶ 6. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHOBA COUNTY.

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


author: MAXWELL, J.,

text:
    Barron BORDEN a/k/a Barron Lecour Barden, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01444-COA.
    Court of Appeals of Mississippi.
    Oct. 1, 2013.

      Barron Borden, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., BARNES, MAXWELL and JAMES, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Barron Borden seeks post-conviction relief (PCR) from his guilty plea to capital murder and Alford plea to third-degree arson. He argues his pleas were not voluntarily made and that he is “legally innocent.” After review, we find Borden has not shown any constitutional violations, so he is not “legally innocent” of either offense. We also find he was thoroughly advised of his constitutional rights, the nature of the charge against him, and the consequences of his pleas. Because each plea was knowingly and intelligently made and supported by a factual basis, we reject his claim that his pleas were involuntary.

¶ 2. We further find his previously admitted satisfaction with his lawyer and concession that he had “no defense” to the charges undercuts his recent ineffective-assistance-of-counsel claim. He also waived any potential speedy-trial argument he may have had by entering the two pleas. For these reasons, we affirm the denial of his PCR claim.

FACTS AND PROCEDURAL HISTORY

¶ 3. On October 8, 2008, after a drug deal went bad, Borden and his codefen-dant, Eddie Pugh, kidnapped Kelsey McCoy and Rahman Mogilles. Borden and Pugh tied the two men up in New Orleans, Louisiana, then drove them to Jackson County, Mississippi, in Mogilles’s vehicle. Borden claimed that while en route to Mississippi, a fight broke out between he and Mogilles. The two supposedly wrestled over a gun, which went off, killing McCoy. After the shooting, Borden and Pugh set Mogilles’s vehicle on fire.

¶ 4. On May 15, 2009, Borden and Pugh were convicted of a variety of charges relating to these events after a jury trial in the United States District Court for the Southern District of Mississippi. Specifically, Borden and Pugh were found guilty of conspiracy to commit kidnapping; two substantive counts of kidnapping relating to McCoy and Mogilles; felon in possession of a firearm; and possession of a firearm in connection with a crime of violence. Both were sentenced to life imprisonment, plus five additional years.

¶5. Pugh then proceeded to trial in Jackson County Circuit Court, where he was convicted of capital murder, aggravated assault, and third-degree arson. He received consecutive sentences of life for capital murder, twenty years for aggravated assault, and three years for third-degree arson.

¶ 6. On January 6, 2011, Borden elected to waive trial on his state charges and enter a plea of guilty to capital murder and an Alford (best interest) plea to third-degree arson in the Jackson County Circuit Court. The judge accepted his pleas and sentenced him to life without parole for capital murder and three years on the arson charge. Borden later filed a PCR motion, which the circuit court denied. Borden now appeals.

DISCUSSION

¶ 7. In considering the denial of a PCR motion, “we review the trial court’s findings of fact for clear error and its determinations of law de novo.” Wilkerson v. State, 89 So.3d 610, 613 (¶ 7) (Miss.Ct.App.2011). The burden is on the PCR movant to show he or she is entitled to relief by a preponderance of the evidence. Id. We affirm dismissals or denials of PCR motions when the movant fails to demonstrate “a claim procedurally alive substantially showing the denial of a state or federal right.” Id. at 614 (¶ 7).

I. Ineffective Assistance of Counsel

¶ 8. Though Borden had already been convicted of federal charges, he argues his attorney was ineffective in advising him to plead guilty in state court because he was “legally innocent.” While he does not mention exactly why he was legally innocent, it is important to note that there is a difference between claims of “actual innocence” and “legal innocence.”

¶9. In the context of post-conviction proceedings, the United States Supreme Court has explained that actual innocence means “factual innocence” — that the person did not commit the crime. Sawyer v. Whitley, 505 U.S. 338, 339, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). But legal innocence is a distinct concept that arises in circumstances when a constitutional violation, by itself, requires reversal. Id. at 339-40, 112 S.Ct. 2514. Since Borden insists he is legally (not factually) innocent, he apparently is not arguing that he did not commit the crime. So we focus instead on his constitutional claims, his first of which attacks his state court counsel.

¶.10. To proye ineffective assistance of counsel, Borden must show: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Borden to show both prongs. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

¶ 11. Borden suggests his attorney was ineffective for failing to conduct a reasonable investigation before advising him to plead guilty and not raising the defense that he was “legally innocent.” But Borden neither specifies how he was legally innocent nor points to a valid constitutional violation that, if raised before trial, would have resulted in a different outcome. So there is no viable legal-innocence claim.

¶ 12. Perhaps Borden misunderstands the concept, of legal innocence— which typically arises in the post-conviction setting when it is alleged and discovered that a constitutional violation or error occurred that, standing alone, requires reversal. However, to the extent he claims a general deficiency in his representation, we point out that when counseling a client on a guilty plea, a lawyer’s advise need only be reasonably competent, not perfect. Hill v. State, 60 So.3d 824, 827 (¶ 5) (Miss.Ct.App.2011) (citation omitted). What is paramount to the representation is that the lawyer’s advice be sufficient to allow the defendant to make an informed and conscious choice about whether to plead guilty. Id. (citation omitted). And here, we must presume it was, since Borden offers nothing to show his attorney’s advice to plead guilty was unsound or falls outside “the wide range of reasonable professional assistance.” Id. Borden’s argument is also undermined by the record, which contradicts his newfound dissatisfaction with his attorney.

¶ 13. At Borden’s guilty-plea hearing, he swore under oath that he was satisfied with his attorney. When asked by the court if his lawyer advised him in a manner consistent with his best interests, Borden told the judge, “Yes, your Honor. They established that there is no — yeah, that there is no defense.” Borden was even asked whether he personally believed he had a defense to the charges, and answered — ‘You mean to the evidence? No.”

¶ 14. We have long held that “solemn declarations in open court carry a strong presumption of verity.” Id. at 828 (¶ 12). And' based on the colloquy, we find Borden should be held to his earlier sworn statements about his satisfaction with his attorney, particularly when he has met neither Strickland prong. We thus find his ineffective-assistance-of-counsel claim fails.

II. Validity of Guilty Plea

¶ 15. Borden next argues his guilty plea was involuntary, again citing his legal innocence. This is a constitutional claim for which the defendant bears the burden of proof. Dockery v. State, 96 So.3d 759, 763 (¶ 17) (Miss.Ct.App.2012). When a trial judge has found a defendant’s guilty plea is voluntary, we will only set aside those findings if they are clearly erroneous. Id.

A. Guilty Plea

¶ 16. A guilty plea is binding when it is voluntary, knowing, and intelligent. Hill, 60 So.3d at 828 (¶ 11). “To determine whether the plea is voluntarily and intelligently given, the trial court must advise the defendant of his rights, the nature of the charge against him, as well as the consequences of the plea.” Dockery, 96 So.3d at 763 (¶ 17) (quoting Burrough v. State, 9 So.3d 368, 373 (¶ 11) (Miss.2009)). The defendant must also be advised that a guilty plea waives various constitutional rights. Hill, 60 So.3d at 828 (¶ 11). The most significant evidence of the voluntariness of a plea is “[t]he thoroughness with which the defendant was interrogated by the lower court.” Id. at (¶ 12) (citation omitted).

¶ 17. Our review of Borden’s plea colloquy shows that he was vigorously and thoroughly questioned by the circuit court judge. During the hearing, Borden was asked if he understood the nature of the charges, and answered, “Yes, Your Hon- or.” He also maintained that he had fully discussed with his attorneys all facts and circumstances surrounding both charged offenses, including any potential defenses. When asked if he believed he had any defenses, Borden admitted he did not. He represented to the judge that no promises, threats, or force was used against him to get him to plead guilty. And the circuit judge and counsel informed him of the rights he was waiving by pleading guilty, including his right to be tried by a jury; to confront witnesses against him; to present evidence and call witnesses on his behalf; to appeal the issue of his guilt; to receive a speedy trial; and to assert other constitutional-rights violations. He was also advised of the potential sentence he faced. So the record refutes his involuntariness claim.

B. Factual Basis

¶ 18. To the extent Borden challenges the factual basis, we find it also sufficiently supports his pleas. See Williams v. State, 110 So.3d 840, 843 (¶ 17) (Miss.Ct.App.2013). There are a variety of ways to establish a factual basis, including “a statement of the prosecutor, the testimony of live witnesses, and prior proceedings, as well as an actual admission by the defendant.” Id. (quoting Turner v. State, 864 So.2d 288, 292 (¶ 17) (Miss.Ct.App. 2003) (citing Corley v. State, 585 So.2d 765, 767 (Miss.1991))). “And ‘if sufficiently specific, an indictment or information can be used as the sole source of the factual basis for a guilty plea.’” Id. (quoting Drake v. State, 823 So.2d 593, 594 (¶ 6) (Miss.Ct.App.2002)). We look to the entire record when evaluating the factual basis. Id.

¶ 19. Here, we find the factual basis for the capital-murder charge was established in at least two different ways. First, the indictment was read to Borden during his plea hearing. And Borden acknowledged the charged crimes were the ones to which he was entering pleas. Borden also admitted he was guilty of capital murder. Second, when asked to state in his own words why he was guilty of capital murder, Borden gave a detailed account of events leading to the shooting and described the shooting itself.

¶ 20. Borden explained that everything started with a failed drug deal, which resulted in a kidnapping. When the deal unraveled, Borden forced Mogilles to tie up McCoy. Borden then tied up Mogilles. At this point, Borden forced both men into Mogilles’s vehicle, where they remained bound, while Pugh and Borden drove them from New Orleans to the Mississippi Gulf Coast. Borden admitted that Mogilles and McCoy were held against their will. So there was obviously a kidnapping, which was the underlying charge for the capital murder. See Miss.Code Ann. § 97-3-19(2)(e) (Rev.2006).

¶ 21. As to the shooting, Borden claimed he and Mogilles wrestled over a gun, which went off, shooting McCoy in the head. While Borden maintained McCoy’s death resulted from an accidental killing, the nature of the shooting does not negate application of the felony-murder doctrine. Under section 97-3-19(2)(e), the State need not “prove the elements of murder, only that a killing took place while the accused was ‘engaged in the commission’ of [an] enumerated felon[y,]” — one of which is kidnapping. Layne v. State, 542 So.2d 237, 243 (Miss.1989). And even an accidental shooting qualifies as support for a capital-murder conviction if it occurred in the course of a kidnapping or other crime specified in section 97-3-19(2)(e). See Layne, 542 So.2d at 243 (applying a Texas court’s rationale that the purpose behind the felony-murder rule was to deter even accidental killings in the commission of certain felonies by holding those guilty strictly liable for even accidental killings); see also Beale v. State, 2 So.3d 693, 698 (¶ 12) (Miss.Ct.App.2008).

¶ 22. Reading the record as a whole, we find the recitation of the indictment, Borden’s admission of guilt, and his account of the kidnapping and shooting that resulted in McCoy’s death provide a sufficient factual basis supporting the capital-murder plea.

C. Arson

¶ 23. While Borden actually pled guilty to the capital-murder charge, he entered an Alford or best-interest plea on the third-degree-arson count. An Alford plea allows a defendant to maintain his innocence but concede the State had sufficient evidence to convict him. See Alford, 400 U.S. at 37-38, 91 S.Ct. 160. Because Borden agreed the State had sufficient evidence to convict him of arson at trial and felt it was in his best interest to plead guilty, we likewise find his Alford plea to arson is sufficiently supported.

III. Speedy-Trial Violation

¶ 24. Borden also insists he was denied his right to a speedy trial. But during his plea colloquy, the circuit judge advised him that by pleading guilty, he would forfeit certain rights, including the right to a speedy trial. Because “a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial,” including the constitutional right to a speedy trial, Anderson v. State, 577 So.2d 390, 391-92 (Miss.1991), we find Borden forfeited any potential speedy-trial issues.

IV. Content of Record on Appeal

¶ 25. Borden next claims the circuit court erroneously denied his request to amend and supplement the record with affidavits from family members attesting Borden was convinced to plead guilty to avoid a possible death sentence. We disagree.

¶ 26. Rule 10(f) of the Mississippi Rules of Appellate Procedure — which addresses the content of the record on appeal — instructs that the rule shall not be construed “as empowering the parties or any court to add to or subtract from the record except insofar as may be necessary to convey a fair, accurate, and complete account of what transpired in the trial court with respect to those issues that are the bases of appeal.” (Emphasis added).

¶ 27. Because this testimony was not before the trial court, and the affidavits were not even created until a month after the PCR hearing, we find they are not necessary to convey a fair, accurate, and complete account of what transpired below. So Rule 10(f) supports denying supplementation of the record.

¶ 28. We affirm.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR.

      . See Pugh v. State, 101 So.3d 682 (Miss.Ct.App.2012).

      . See United States v. Pugh, 2009 WL 2928757, *1 (S.D.Miss.2009).

      . See id.

      . See United States v. Whitmore, 386 Fed.Appx. 464, 468 (5th Cir.2010).

      . See Pugh, 101 So.3d at 685 (¶ 1).

      . North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      . Under Mississippi Code Annotated section 97-3-19(2)(e):
      The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:

      When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or in any attempt to commit such felonies [.]


text:
    Chris CLAUSELL, Appellant v. Jeffrey BOURQUE, Appellee.
    No. 2012-CA-01281-COA.
    Court of Appeals of Mississippi.
    Oct. 1, 2013.

      Edward D. Markle, attorney for appellant.
    Gail D. Nicholson, Chester D. Nicholson, Gulfport, attorneys for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. Chris Claused filed an amended complaint in the Jackson County Circuit Court against Lowe’s Home Center Inc. (Lowe’s), Joel Magazzu, and Jeffrey Bo-urque, alleging intentional and/or gross negligence in installing shower doors in his home. Bourque filed a motion for summary judgment, which the circuit court granted. Feeling aggrieved, Claused appeals and presents the following issües, which we have recast for clarity: whether the court erred by ruling that Bourque was under no legal duty to repair the shower doors; whether the court erred in ruling that Bourque had made a gratuitous promise and that Claused did not detrimentally rely on that promise; and whether the court erred in ruling that there was insufficient evidence to impose an independent duty upon Bourque to repair the doors.

¶ 2. Because we find that the circuit court’s judgment is not a final, appealable judgment, we dismiss this appeal for lack of jurisdiction.

FACTS

¶ 3. Claused’s wife, Tammy, purchased shower doors from Lowe’s. Magazzu installed the doors. A couple of months later, Claused called and informed Lowe’s that one of the shower doors had fallen and caused an injury to his foot. Lowe’s issued a work order to Bourque, an independent contractor, stating that the “customer said shower door fed and hurt his toe, please take a look and try to find out how it fed and how bad it is broke [sic].” Bourque went to Claused’s home to inspect the doors and, afterwards, submitted an invoice to Lowe’s that indicated what needed to be done to fix the doors. For whatever reason, Lowe’s did not repair the doors at that time or request Bourque to do so. Ten months after Bourque’s inspection, one or both of the doors fed again while Claused was taking a shower, causing injury to Claused. Thereafter, Magazzu installed new doors, and Claused filed his initial complaint, which did not include Bourque as a defendant.

¶ 4. After Claused filed his amended complaint, adding Bourque as a defendant, Bourque filed a motion for summary judgment stating that there were no issues of material fact regarding whether he provided or sold defectively designed or manufactured doors, improperly installed the shower doors, made misrepresentations or negligent recommendations concerning the type of shower doors to be installed, failed to warn Clausell that the doors were inadequate, or committed any other act of negligence proximately causing Clausell’s alleged damages. The circuit court granted the motion on the ground that Bourque was under no duty to repair the shower doors.

¶ 5. Additional facts, as necessary, will be related during the analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. If neither party has addressed the finality of the circuit court’s order, we must address the question on our own initiative. Williams v. Delta Reg’l Med. Ctr., 740 So.2d 284, 285 (¶ 5) (Miss.1999). Rule 54(b) of the Mississippi Rules of Civil Procedure reads:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated[,] which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties[,] shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Here, the circuit court granted summary judgment as to Bourque without certifying its judgment as final under Rule 54(b).

¶ 7. “Without the entry of a Rule 54(b) certificate, a [circuit] court order which disposes of less than all of the claims against all of the parties in a multiple[-]party or multiple[-]elaim action, is interlocutory.” Jackson v. Lowe, 65 So.3d 879, 881 (¶ 7) (Miss.Ct.App.2011) (quoting M.W.F. v. D.D.F., 926 So.2d 897, 900 (¶ 4) (Miss.2006)). An interlocutory order is not appealable unless the Mississippi Supreme Court grants permission to appeal under Rule 5 of the Mississippi Rules of Appellate Procedure; otherwise, this Court has no jurisdiction to hear the case. Jackson, 65 So.3d at 881-82 (¶ 7). Clausell’s complaint alleged multiple claims against three parties. However, the circuit court granted summary judgment to only one party without a Rule 54(b) certification, leaving the claims against the remaining parties unresolved. There is no evidence that our supreme court granted permission to Clau-sell to appeal under Rule 5. Therefore, the circuit court’s order granting summary judgment is not a final, appealable judgment. Accordingly, this appeal must be dismissed for lack of jurisdiction.

¶ 8. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Neither Lowe’s nor Magazzu was dismissed from the case. Additionally, neither Lowe’s nor Magazzu filed a motion for summary judgment.