author: PIERCE, Justice,

text:
    Dr. Charles H. LANEY v. Martin VANCE, individually and o/b/o Wrongful Death Beneficiaries of Mamie Vance Hemphill.
    No. 2011-CA-00933-SCT.
    Supreme Court of Mississippi.
    April 25, 2013.
    John Michael Coleman, Diane Pradat Pumphrey, Bradley K. Overcash, attorneys for appellant.
    Isaac K. Byrd, Jr., Jackson, attorney for appellee.
    Before RANDOLPH, P.J., PIERCE and KING, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. Martin Vance filed a medieal-mal-practice/wrongful-death action on behalf of Mamie Vance Hemphill, alleging that Dr. Charles H. Laney was negligent in his treatment of the decedent, Hemphill. Vance initially sued other medical providers, but all but Dr. Laney were dismissed. Trial was held April 4-7, 2011. Dr. Laney was the sole defendant. The jury returned a verdict of $1,000,000 to Vance. In response, Dr. Laney filed this appeal.

STATEMENT OF THE FACTS

¶ 2. On July 13, 2005, Mamie Vance Hemphill began treatment at St. Dominic’s Hospital. She was admitted with complaints of confusion, decreased appetite, and tremors, and also had end-stage renal disease, respiratory failure, pneumonia, and had been on dialysis. An immediate concern was probable sepsis from the dialysis catheter. This was the only access her doctors had to conduct dialysis. She was treated with Levaquin and Vancomy-cin, and the catheter was left in place for dialysis. Initially, her body responded well to the antibiotics, and her white blood cell count and temperature lowered. On July 16, 2005, Hemphill’s blood pressure dropped unexpectedly, and she began to have abdominal pain. The doctors attempted dialysis, but the pain continued and her blood pressure dropped more. The doctors made plans to remove the catheter and administer additional tests to include a CT scan. Dr. Anne B. White-hurst, an infectious-disease specialist, was brought in, as well. By 1:45 p.m., on July 16, 2005, Hemphill went into cardiopulmonary arrest and could not be revived.

¶ 3. Martin Vance (individually and on behalf of wrongful-death beneficiaries of Mamie Vance Hemphill) complained (at trial) that Dr. Charles Laney failed to recognize Hemphill’s medical problems and failed to move her to intensive care soon enough before she died. Further, he alleged that Hemphill should have been treated with more than just antibiotics, and that the treatment should have included' removal of the allegedly infected catheter. He asserted that this failure to remove the catheter led to septicemia and systematic inflammatory response syndrome and that was the proximate cause of her death.

¶ 4. The main issue to be resolved by the jury was whether Dr. Laney breached the applicable standard of care by deciding to treat the infection with antibiotics and to leave the allegedly infected catheter in place, since it was the only access for dialysis. The jury returned a verdict for $1,000,000, which included $200,000 in economic damages and $800,000 in noneco-nomic damages.

DISCUSSION

¶ 5. Dr. Laney has presented three issues to this Court. They include:

I. Whether the trial court erred in remitting the plaintiffs economic damage award to $103,688 when the substantial weight of the evidence proved that the award should be zero.
II. Whether the trial court erred in instructing the jury when the jury instructions are taken as a whole.
III. Whether Plaintiffs counsel’s improper comments and arguments, including that the damages should represent “the value of a human life,” when combined with the erroneous jury instructions, mandate reversal and a new trial.

Because we find that Issue three (3) is dispositive, we will not address Issues One and Two.

III. Whether Plaintiffs counsel’s improper comments and arguments, including that the damages should represent “the value of a human life,” when combined with the erroneous jury instructions, mandate reversal and a new trial.

¶ 6. Dr. Laney alleges that the trial court erred in instructing the jury that an element of damages in this case is the “loss of the value of life of Ms. Hemphill.” Dr. Laney asserts that allowing the “value of life” to be considered as an element of damages is inconsistent -with Mississippi Code Section 11-1-69(2), which states, “In any wrongful death action, there shall be no recovery for loss of enjoyment of life caused by death.” Miss.Code Ann. § 11-1-69(2) (Rev.2002). Rather, damages are limited to: “(1) the present net cash value of the life expectancy of the deceased, (2) the loss of the companionship and society of the decedent, (3) the pain and suffering of the decedent between the time of injury and death, and (4) punitive damages.” McGowan v. Estate of Wright, 524 So.2d 308, 311 (Miss.1988) (citing Jesco, Inc. v. Whitehead, 451 So.2d 706, 710 (Miss.1984)); Sheffield v. Sheffield, 405 So.2d 1314, 1318 (Miss.1981); Dickey v. Parham, 331 So.2d 917, 918-919 (Miss.1976); Thornton v. Ins. Co. of North America, 287 So.2d 262, 265 (Miss.1973); Scott v. KB Photo Service, Inc., 260 So.2d 842, 844 (Miss.1972); Boyd Constr. Co. v. Bilbro, 210 So.2d 637, 643 (Miss.1968).

¶ 7. This Court, in Rebelwood Apts. RP, LP v. English, 48 So.3d 483, 496 (Miss.2010), held that “[i]n providing a framework for determination of lost future income, courts are not determining the ‘value’ of a person.” Additionally, Mississippi Code Section 11-1-69(2) bars hedonic damages, which are:

The damages for the loss of enjoyment of life, which purportedly compensate an injured person for the loss of quality of life or in the case of a wrongful death action for the value of life itself.

Miss.Code Ann. § 11-1-69(2) (Supp.2012).

¶ 8. Vance asserts that the jury instructions were proper, because they were not objected to at trial and are correct under Mississippi law. Vance cites InTown Lessee Associates, LLC v. Howard, 67 So.3d 711, 719 (Miss.2011), quoting, “Our longstanding case law is clear that the failure to make a contemporaneous objection to the evidence waives the issue on appeal.” Vance notes that the parties clashed over various parts of the jury instructions. Further, Vance argues that the jury instructions actually addressed in meeting with the judge were over the “quality of life” section and not a clear objection to the “value of life” language.

¶ 9. In his reply brief, Dr. Laney asserts that the parties provided the trial court with lengthy arguments about the instructions, along with objections to them. Further, Dr. Laney recognizes that the trial court already was apprised of the parties’ positions, objections, and arguments, and constant objections and arguments would cause the issue to never cease. The Legislature addressed this issue when it amended Mississippi Code Section 11-1-69(2) to include, “In any wrongful death action, there shall be no recovery for loss of enjoyment of life caused by death.” Miss. Code Ann. § 11-1-69(2) (Supp.2012). Although we agree that Dr. Laney’s attorney could have clarified her point more precisely during the conference with the judge on jury instructions, she did not fail to object. In a situation like this, based on statutory language and the Legislature’s recent amendments following tort reform in 2002, we find that it was reversible error for the trial judge to instruct the jury that it might consider the “value of life” of the deceased in awarding damages.

¶ 10. Additionally, the statements made in Vance’s attorney’s closing argument were prejudicial to Dr. Laney. Dr. Laney argues that many of Vance’s counsel’s comments, including those addressed in closing arguments, were improper, and we agree. During closing arguments, counsel for Vance stated the following to the jury:

The first thing they do in a communist Nazi Country is destroy the jury system. Why do they want to destroy the jury system? Because you represent the line between tyranny and democracy, right and wrong. You have the power ... You have more power today than the President of the United States....
But the question is, will you have courage today? Do you have the God given courage....
The value of the life of Mamie Hemp-hill.... I had to bring each one of the kids up here and ask them, what did your mother mean to you? What did she do with you? What did she do for you? The value of a loss.

Based on the prejudicial nature of the foregoing statements and other statements by counsel for Vance, which were presented to the jury during closing arguments, we reverse and remand for a new trial.

CONCLUSION

¶ 11. Because the trial judge committed reversible error in instructing the jury that they could consider the “value of life” of the deceased in awarding damages, and because counsel for Vance made improper and prejudicial comments to the jury during closing arguments, we reverse and remand for a new trial.

¶ 12. REVERSED AND REMANDED.

RANDOLPH, P.J., LAMAR, KITCHENS, KING AND COLEMAN, JJ., CONCUR. WALLER, C.J., DICKINSON, P.J., AND CHANDLER, J., NOT PARTICIPATING.

      .The trial judge instructed the jury that if it returned a verdict in favor of Plaintiff, it was to award damages as follows:
      1. The value of any physical pain and suffering suffered by Mamie Vance Hemphill;
      2. The loss of income suffered by the death of Mamie Vance Hemphill, if any;
      3. The value of any loss of companionship, love and society, past, present or future mental anguish and distress suffered by her wrongful death beneficiaries;
      4. The value of the life of Mamie Vance Hemphill.
      (Emphasis added.)


source: Caselaw Access Project

author: RANDOLPH, P.J.,

license: Public Domain

text:
    Willie Jerome MANNING a/k/a “Fly” v. STATE of Mississippi.
    No. 95-DP-00066-SCT.
    Supreme Court of Mississippi.
    May 7, 2013.
   CORRECTED ORDER

This matter is before the Court en banc on the Motion to Stay Execution and Set Aside Convictions, Second Motion for Leave to File Successive Petition for Post-Conviction Relief, and Motion in the Alternative for Other Forms of Relief filed by Willie Jerome Manning. Also before the Court is the Response filed by the State of Mississippi, the Reply filed by Manning, the Supplement to the Motion filed by Manning, and the Supplement to the Response filed by the State of Mississippi.

After due consideration, the Court finds that the Motion to Stay Execution should be granted until further Order of this Court.

IT IS THEREFORE ORDERED that the Motion to Stay Execution filed by Willie Jerome Manning is hereby granted pending further Order of this Court.

SO ORDERED, this the 7th day of May, 2013.

TO GRANT: WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ.

RANDOLPH, PRESIDING JUSTICE, OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT.

RANDOLPH, P.J.,

objecting to the order with separate written statement:

¶ 1. Before the Court en banc is the “Motion to Stay Execution and Set Aside Convictions, Second Motion for Leave to File Successive Petition for Post-Conviction Relief, and Motion in the Alternative for Other Forms of Relief’ filed by Willie Jerome Manning. Also before the Court is Manning’s Supplement to his motion, the Response filed by the State of Mississippi, the State’s Supplement to its Response, and Manning’s Reply to the State’s Response.

¶ 2.1 would deny relief, for Manning has wholly and completely failed to comply with statutory requirements and the precedent of this Court. “Mississippi Code Section 99-39-9(e) (Rev.2007) requires that an application for post-conviction collateral relief be supported by the affidavits of witnesses who will prove the petitioner’s claims.” Brown v. State, 88 So.3d 726, 733 (Miss.2012).

¶ 3. Letters submitted by petitioner from the Department of Justice have unsigned reports attached from a Microscopic Hair Comparison Analysis Review Team Laboratory Division (FBI), without identifying the authority, credentials, qualifications, name, or title of any member of the team. The letters challenge not only former FBI experts in hair, but also ballistics. Our established law and justice require more.

¶ 4. The petitioner has had access to the hair and other forensic evidence since April 26, 1994. (R. 335). The petitioner even was granted his own ballistics expert, Richard D. Carter, at taxpayer expense on August 24,1994. (R. 368). However, petitioner elected not to call Carter at trial.

¶ 5. Hair and ballistics issues from petitioner’s violent crimes committed twenty years ago have been included in a long string of litigation in State and Federal Courts. This is not the first time petitioner has raised these issues. Our predecessors on this very Court rejected the hair issue on direct appeal, stating that Blythe “did not claim that the hair matched that of the defendant.” Blythe only testified that the hair came from a member of the black race. He also admitted that his expertise could not produce absolute certainty. Manning v. State, 726 So.2d 1152, 1180-81 (Miss.1998).

¶ 6. After relief was denied on direct appeal, petitioner filed for post-conviction relief in this Court in 2001. At that time, petitioner neither sought DNA testing nor raised hair or ballistics issues as a basis for relief.

¶ 7. In his federal habeas action, the same issues were raised and rejected. Former United States District Court Judge Allen Pepper (now deceased) wrote that “[a]t trial expert testimony was given only that the hair found in Miller’s car exhibited characteristics associated with the African-Americans.” Manning v. Epps, 2008 WL 4516386 (N.D.Miss.2008). Judge Pepper continued, “[e]ven if DNA testing could conclusively prove that it was not Petitioner’s hair that was found in the vehicle, those results would not impeach the testimony given at trial, much less exonerated Petitioner.” This issue has been fully litigated.

¶ 8. Only after exhaustion of all appeals, federal and state, has this series of eleventh-hour applications been made. “[A] defendant should not be allowed to take a gambler’s risk and complain only if the cards [fall] the wrong way.” District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 86, 129 S.Ct. 2308, 2330, 174 L.Ed.2d 38 (2009) (Alito, J., concurring) (citation omitted).

¶ 9. One of the Department of Justice’s letters contains specific statements that are contrary to prior Department of Justice publications. The letter asserts that “[m]itochondrial DNA testing became routine after December 31, 1999.” A Department of Justice article published in July 1999 belies this assertion. The July article states unequivocally that testing began in 1992, and that evidentiary sampling began in 1996. As of April 1999, mtDNA analyses had been admitted in criminal proceedings in the following states: Alabama, Arkansas, Florida, Indiana, Illinois, Maryland, Michigan, New Mexico, North Carolina, Pennsylvania, South Carolina, Tennessee, Texas, and Washington.

¶ 10. The letter also states that the Department of Justice is “assisting] [the Innocence Project and the National Association of Criminal Defense Lawyers] in their evaluations.” “The Innocence Project supports a moratorium on capital punishment.” The “NACDL has been an outspoken critic of the death penalty system.” Of critical concern is the language contained in the first FBI report stating that, “[g]iven the abbreviated time frame for review, the FBI requests the Innocence Project (IP) to advise as to whether or not they agree with the FBI’s conclusions as soon as possible.” Although the connectivity and expediency by which this review was accomplished is mind boggling, I should not be surprised, given that the families of victims of the clandestine ‘Fast and Furious’ gun running operation can’t get the Department of Justice to identify the decision makers (whose actions resulted in the death of a border agent and many others) after years of inquiry, and that this is the same Department of Justice that grants and enforces Miranda warnings to foreign enemy combatants.

¶ 11. There exists a host of other legal and factual issues. But time allocated to write is so compressed due to last minute filings, I shall more fully address these deficiencies when the opportunity presents itself.

      . Post-conviction relief was denied in 2006.

      . This Court was granting DNA requests as early as 2002-seven years before the post-conviction relief statute was amended.

      .Alice R. Isenberg and Jodi M. Moore, Mitochondrial DNA Analysis at the FBI Laboratoty, 1 Forensic Science Communications (July 1999), http://www.fbi.gov/about-us/lab/ forensic-science-communications/fsc/julyl999/ dnalist.htm (last visited May 7, 2013).

      . http://www.innocenceproject.or¡^Content/ The_Death_Penalty.php (Last visited May 7, 2013).

      . http://www.nacdl.org/criminal-defense/ death-penalty/. (Last visited May 7, 2013).


author: LEE, C.J.,

text:
    Layfun MOORE, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00267-COA.
    Court of Appeals of Mississippi.
    April 23, 2013.

      Layfun Moore, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On September 9, 2008, Layfun Moore pleaded guilty to one count of attempted sexual battery and one count of fondling of a ten-year-old child. The Coa-homa County Circuit Court sentenced Moore to twelve years on each count, to be served concurrently, with eight years of post-release supervision for the attempted-sexual-battery count and three years of post-release supervision for the fondling count, all to be served in the custody of the Mississippi Department of Corrections (MDOC).

¶ 2. Moore filed a petition for post-conviction relief in the trial court on November 20, 2011. The trial court found the petition to be untimely and dismissed the petition. This appeal followed.

STANDARD OF REVIEW

¶ 3. When reviewing a trial court’s denial or dismissal of a petition for post-conviction relief, we will only disturb the trial court’s factual findings if they are clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review. Madden v. State, 52 So.3d 411, 412 (¶ 6) (Miss.Ct.App.2011); Doss v. State, 19 So.3d 690, 694 (¶ 5) (Miss.2009).

DISCUSSION

I. STATUTE OF LIMITATIONS

¶ 4. Under Mississippi Code Annotated section 99-39-5(2) (Rev.2007), a petitioner who enters a plea of guilty must file his petition “within three (3) years after entry of the judgment of conviction.” Moore pleaded guilty to both counts on September 9, 2008. Therefore, he had until September 8, 2011, to file his petition. Moore did not file his petition until November 20, 2011, seventy-three days late. The trial court found the petition to be untimely.

¶ 5. Moore argues that his petition was untimely because the trial court failed to timely rule on his motion for transcripts. Exceptions to the three-year filing requirement are enumerated in section 99 — 39—5(2)(a)—(b); these exceptions include: (1) an intervening appellate decision, (2) new evidence not reasonably discoverable at the time of trial, and (3) a claim that the petitioner’s sentence has expired or that his parole was unlawfully revoked. The trial court found that Moore’s claims did not fall within any of these exceptions, and therefore, found Moore’s petition to be untimely. The trial court was not clearly erroneous in its findings.

II. DOUBLE JEOPARDY

¶ 6. Moore correctly asserts that under Rowland v. State, 42 So.3d 503, 506 (¶9) (Miss.2010), “errors affecting fundamental constitutional rights are excepted from the procedural bars of the U[niform] P[ost-]C[onviction] C[ollateral] R[elief] A[ct].” Moore raises a double-jeopardy claim, which involves a possible error affecting a fundamental right. The Mississippi Supreme Court has stated that “the protection against double jeopardy is a fundamental right,” and, therefore, a claim based on this right is not procedurally barred. Graves v. State, 969 So.2d 845, 846-47 (¶ 6) (Miss.2007). When reviewing double-jeopardy claims, this Court applies a de novo standard of review. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

¶ 7. When addressing a double-jeopardy claim, this Court applies the “same elements” test laid out in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Boyd v. State, 977 So.2d 329, 334 (¶ 16) (Miss.2008). Under this test, “even though a defendant may be charged with violation of two separate statutes, we look to see whether ‘each statutory provision requires proof of a fact which the other does not.’ ” Id. (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. 180). For a conviction to withstand the “same elements” test, each offense must “con-taint ] an element not contained in the other.” Boyd, 977 So.2d at 334 (¶ 16).

¶ 8. Moore argues that his right against double-jeopardy was violated because the fondling count and the attempted-sexual-battery count stem from the same incident. Both crimes did occur during the same encounter; however, the elements of fondling and attempted sexual battery are not the same. Under Mississippi Code Annotated section 97-5-23(1) (Rev.2006), fondling occurs when (1) a person above eighteen years old (2) handles, touches, or rubs (3) a child under the age of sixteen years old (4) for the purpose of gratifying lust or indulging in licentious sexual desires. The elements of attempted sexual battery include: (1) the intent to commit sexual battery, (2) an overt act toward committing sexual battery, and (3) failure to commit sexual battery. Miss. Code. .Ann. § 97-1-7 (Rev.2006). Sexual battery is defined by Mississippi Code Annotated section 97-3—95(1)(d) (Rev.2006) as “sexual penetration with ... [a] child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.”

¶ 9. Under the “same elements” test, each count contains an element not contained in the other. Attempted sexual battery does not contain the element of gratification of lust. Furthermore, fondling does not require the element of penetration. Therefore, this issue is without merit.

III. SENTENCING

¶ 10. Moore also raises another possible issue involving the fundamental right to be free from an illegal sentence. Kennedy v. State, 732 So.2d 184, 186 (¶ 8) (Miss.1999) (“[T]he right to be free from an illegal sentence has been found to be fundamental.”). Moore asserts that his sentence is illegal as a matter of law.

¶ 11. “In order for an error related to improper sentencing to be preserved for appeal, there must be an objection made at trial.” Hobgood v. State, 926 So.2d 847, 857 (¶ 34) (Miss.2006). Moore’s counsel did not object to the sentence at the guilty-plea hearing. Even so, “the general rule in this state is that a sentence cannot be disturbed on appeal so long as it does not exceed the maximum term allowed by statute.” Fleming v. State, 604 So.2d 280, 302 (Miss.1992).

¶ 12. Under Mississippi Code Annotated section 97-3-101(3) (Rev.2006), the trial court may sentence a person convicted under section 97 — 3—95(l)(d) to any term less than life, but no less than twenty years. Additionally, the trial court may sentence a person convicted under section 97-5-23 to no more than fifteen years.

¶ 13. For the attempted-sexual-battery count, Moore was sentenced to twelve years, with eight years of post-release supervision. Combined, Moore’s attempted-sexual-battery sentence was for twenty years, which was within the statutory limits. For the fondling count, Moore was sentenced to twelve years, with three years post-release supervision. Combined, Moore’s fondling sentence was for fifteen years, which is within the statutory limits. Therefore, this issue is without merit.

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

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ„ CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.


text:
    Jimmy COLLIER Jr. a/k/a Jimmie Collier a/k/a Jimmy Collier a/k/a Junebug, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CA-01148-COA.
    Court of Appeals of Mississippi.
    April 30, 2013.

      Sanford E. Knott, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On May 5, 2008, Jimmy Collier pleaded guilty in the Oktibbeha County Circuit Court to murder. He was sentenced to life imprisonment without the possibility of parole. On May 4, 2011, Collier filed a motion for post-conviction relief asserting he would not have pleaded guilty if he had realized he was ineligible for parole. Finding it had no duty to inform Collier of his parole eligibility, the trial court dismissed Collier’s motion.

¶ 2. Collier subsequently filed a motion for reconsideration and asked the trial court to consider an affidavit he had written. In the affidavit, Collier stated he was told that his attorney and the prosecutor had reached an agreement where he would be sentenced to life with the possibility of parole if he pleaded guilty. However, he was told that because of his prior criminal history, a jury conviction would result in a life sentence with no eligibility for parole. In the last sentence of the affidavit, Collier requested a hearing. This motion for reconsideration was also dismissed.

¶ 3. Collier appeals asserting he was entitled to an evidentiary hearing on whether his guilty plea was entered into knowingly and voluntarily.

STANDARD OF REVIEW

¶ 4. When reviewing a trial court’s dismissal of a motion for post-conviction relief, we will only disturb the trial court’s factual findings if they are clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review. Doss v. State, 19 So.3d 690, 694 (¶ 5) (Miss.2009) (citations omitted).

DISCUSSION

¶ 5. In his only issue on appeal, Collier argues the trial court erred in not granting an evidentiary hearing to determine whether his guilty plea was entered into knowingly and voluntarily. Collier asserts that he would have chosen to proceed to trial had he known his life sentence did not carry the possibility of parole.

¶ 6. In his brief on appeal, Collier states he learned he was ineligible for parole after serving two years in prison. Collier does not explain how he learned this or why he waited until his third year of incarceration to bring this to the trial court’s attention. The first time Collier requested an evidentiary hearing on this matter was in the affidavit submitted with his motion for reconsideration. The document, entitled “Affidavit of Jimmy Collier,” is signed by Collier but not notarized or dated. A witness signed the affidavit and wrote the date of June 17, 2011. Since Collier pleaded guilty on May 5, 2008, the motion for reconsideration and the affidavit were submitted after the three-year statute of limitations for filing a motion for post-conviction relief had passed. See Miss.Code Ann. § 99-39-5 (Supp.2012).

¶ 7. Despite the fact that Collier’s arguments were first raised outside the three-year statute of limitations, Collier’s self-serving affidavit did not meet the requirements of the post-conviction-relief statute. Mississippi Code Annotated section 99 — 39—9(1)(e) (Supp.2012) “requires that an application for post-conviction collateral relief be supported by the affidavits of witnesses who will prove the petitioner’s claims.” Brown v. State, 88 So.3d 726, 733 (¶ 18) (Miss.2012). Collier fails to provide supporting affidavits other than his own to prove his plea bargain was for a sentence of life with parole. In addition, section 99-39-9(1)(e) also requires Collier to state “how or by whom said facts will be proven.” Because Collier’s affidavit was insufficient to support his claim, we find Collier’s argument is limited to what is stated in his motion for post-conviction relief— that he was unaware of his ineligibility for parole.

¶ 8. The issue of lack of knowledge of parole ineligibility was addressed in Stewart v. State, 845 So.2d 744, 747 (¶ 11) (Miss.Ct.App.2003). In Stewart, the Mississippi Supreme Court held that being unaware of ineligibility for parole “is not synonymous with ill or erroneous advice.” Id. There is no requirement that a trial judge inform a defendant of parole eligibility. Id. The reason for this is “that [eligibility for parole is not a ‘consequence’ of a plea of guilty, but a matter of legislative grace. It is equally true that noneligibility for parole is not a ‘consequence’ of a plea of guilty; rather, it is a consequence of the withholding of legislative grace.” Ware v. State, 379 So.2d 904, 907 (Miss.1980). The transcript of the sentencing hearing reveals no discussion of Collier’s eligibility or ineligibility for parole.

¶ 9. Although not discussed by the parties, Collier was not eligible for parole due to the violent nature of his crime. See Miss.Code Ann. § 47-7-3(1)(h) (Rev.2011). Section 47-7-3(l)(h) states:

No person shall be eligible for parole who is convicted or whose suspended sentence is revoked after June 30, 1995, except that an offender convicted of only nonviolent crimes after June 30, 1995, may be eligible for parole if the offender meets the requirements in subsection (1) and this paragraph.

The trial court stated repeatedly at the sentencing hearing that “the only sentence that can be imposed is life imprisonment.”

¶ 10. Collier argues his case is analogous to Washington v. State, 620 So.2d 966, 967 (Miss.1993), where the defendant was granted an evidentiary hearing after he was misinformed regarding his parole eligibility. However, Washington is distinguishable. In Washington, the trial court stated the defendant was eligible for parole when, in fact, he was not. Id. at 969. Here, there was no mention of parole during Collier’s sentencing hearing. Even in Collier’s motion for post-conviction relief, he states his plea bargain was for a sentence of “life.” Again, there was no mention of a promise of parole. Since no evidence has been presented that Collier was misinformed during his sentencing hearing, we can find no error on the trial court’s part.

¶ 11. Collier does not specifically allege ineffective assistance of counsel, but the last sentence of his appellate brief states: “Collier was influenced to enter a plea of guilty after receiving erroneous advice of counsel.... ” First, we note Collier has the same counsel on appeal as he did at trial. The motion for post-conviction relief asserts no fault on the part of Collier’s attorney; rather, it states: “The parties believed that [Collier] would be entitled to, at least, the possibility of parole.” Collier’s affidavit states his sentence was discussed, and his attorney and the prosecutor agreed Collier would be eligible for parole. Regardless, we would find any claim of ineffective assistance of counsel without merit without a supporting affidavit other than one from Collier. “In cases involving post-conviction collateral relief, ‘where a party offers only his affidavit, then his ineffective assistance [of counsel] claim is without merit.’ ” Cherry v. State, 24 So.3d 1048, 1051 (¶6) (Miss.Ct.App.2010) (quoting Vielee v. State, 653 So.2d 920, 922 (Miss.1995)). It is unclear why, if it is Collier’s attorney’s position that there was a misunderstanding, an affidavit other than Collier’s could not have been submitted stating as such.

¶ 12. Although Collier may have received incorrect information- regarding his sentence, the record before this Court is insufficient to grant relief. The arguments raised on appeal are without merit.

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

IRVING AND GRIFFIS, P JJ., BARNES, ISHEE, CARLTON AND JAMES, JJ., CONCUR. MAXWELL AND FAIR, JJ., CONCUR IN PART AND IN THE RESULT. ROBERTS, J„ CONCURS IN RESULT ONLY.


author: JAMES, J.,

text:
    Robert Chad LEWIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01907-COA.
    Court of Appeals of Mississippi.
    April 30, 2013.

      Benjamin Allen Súber, Virginia Lynn Watkins, George T. Holmes, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Robert Chad Lewis was convicted by a jury in the Circuit Court.of Hinds County of two counts of armed robbery and a third count for possession of a firearm by a convicted felon. Lewis now appeals, citing the following errors: (1) the evidence was insufficient to support his conviction, and (2) the imposition of separate sentences under Mississippi Code Annotated sections 97-37-37(2) (Supp.2012) and 97-37-5 (Supp.2012) constituted a double-jeopardy violation. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Around midnight on July 2, 2010, Willie Weekly and Beverly Edwards were robbed at gunpoint while standing in the parking lot of Club Elite in Jackson, Mississippi. According to Weekly and Edwards, two men riding in a dark-colored sedan exited the vehicle, held guns to Weekly’s and Edwards’s heads, and ordered them to hand over their personal belongings. One of the men ordered Weekly to remove and hand over his pants while the other man grabbed Edwards’s purse. Edwards’s purse contained a cell phone, a credit card, about $400 in cash, and a straight razor. Before driving off with the items, one of the men handed Edwards her cell phone. After the two men fled the scene, Edwards used her cell phone to call the police.

¶ 3. When the police arrived at the scene, Edwards and Weekly gave descriptions of the robbers and the vehicle. Using the information obtained, the Jackson Police Department issued a “be on the lookout” advisory (BOLO) for the robbers and the vehicle. Shortly after the BOLO was issued, Officer Michael Moore began patrolling the area, looking for a vehicle that matched the description in the BOLO. A dark-colored Toyota Camry was pulled over by Officer Moore for a traffic violation. Noticing that the vehicle matched the description in the BOLO, Officer Moore called for backup because he was advised that the occupants of the vehicle could be armed and dangerous. Once backup arrived, Officer Moore ordered the occupants to exit the vehicle. The two men in the vehicle, one of whom was Lewis, matched the description of the robbers in the BOLO. Lewis was the driver of the vehicle. While performing a protective sweep of the vehicle, Officer Moore found a Glock handgun under the driver’s seat that matched the description in the BOLO. The two men were then apprehended and taken into custody. A straight razor was also later discovered inside the vehicle during an inventory search.

¶4. At the police station, Weekly and Edwards were questioned separately about the incident. During questioning, in separate rooms, both Weekly and Edwards were presented with a photo array of possible suspects. A picture of Lewis was included in the photo array. Both Weekly and Edwards identified Lewis as one of the robbers.

¶ 5. On October 7, 2010, Lewis was indicted on two counts of armed robbery and one count of possession of a firearm by a convicted felon. A jury trial was held on March 28, 2011. The jury found Lewis guilty on all three counts, and sentenced Lewis to serve a term of thirty years for each count of armed robbery, to run concurrently in the custody of the Mississippi Department of Corrections. Lewis was also sentenced to ten years for possession of a firearm by a convicted felon, plus given a ten-year enhancement for use or display of a firearm during the commission of a felony, with the enhancement to run consecutively to all three counts.

¶ 6. On May 18, 2011, Lewis filed a motion for a judgment notwithstanding the verdict, or, in the alternative, a new trial, challenging the sufficiency and weight of the evidence. The circuit court’s denial of that motion led to this appeal.

DISCUSSION

I. Sufficiency of the Evidence

¶ 7. Lewis contends that the evidence was insufficient to support a conviction of armed robbery and possession of a firearm by a convicted felon. In determining whether the evidence presented by the State was sufficient to support a conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

a. Motion for Directed Verdict

¶ 8. In its brief, the State argues that Lewis waived the appeal of his motion for a directed verdict made at the close of the State’s case-in-chief when he subsequently introduced evidence on his own behalf. “When a defendant proceeds with his case after the State rests and the court overrules the defendant’s motion for a directed verdict, the defendant waives the appeal of the directed verdict.” Foster v. State, 928 So.2d 873, 879 (¶ 8) (Miss.Ct.App.2005) (citing Holland v. State, 656 So.2d 1192, 1197 (Miss.1995)). “[AJn appellant may preserve this issue if he renews his motion for a directed verdict at the conclusion of all the evidence.” Id. at 879 (¶ 9) (citing Davis v. State, 866 So.2d 1107, 1112 (¶ 19) (Miss.Ct.App.2003)). At the close of the State’s case-in-chief, Lewis moved for a directed verdict, arguing the evidence was insufficient to prove that Lewis was one of the robbers. The motion was overruled, and Lewis proceeded to introduce evidence on his own behalf. Lewis renewed his motion at the conclusion of all evidence. Thus, we find that Lewis preserved the issue of insufficiency of the evidence with regard to Lewis being identified as one of the robbers.

b. Armed Robbery

¶9. In order to establish that Lewis committed armed robbery, the State was required to prove the following elements beyond a reasonable doubt: (1) a felonious taking or attempt to take (2) “from the person or from the presence” (3) the personal property of another (4) against his will (5) “by violence to his person or by putting” him “in fear of immediate injury to his person by the exhibition of a deadly weapon.” Miss.Code Ann. § 97-3-79 (Rev.2006). Lewis contends that because no fingerprints or DNA tests were conducted on any of the items retrieved from the vehicle, and because the State did not establish that Lewis had actual or constructive possession of the handgun found in the vehicle, the State failed to meet its burden. This argument fails for a number of reasons. First, considering the testimony and evidence presented during trial, a DNA test was not warranted. The Mississippi Supreme Court has held that, in criminal matters, a DNA test is not required absent a showing that it would significantly aid the defense. Rubenstein v. State, 941 So.2d 735, 781 (¶202) (Miss.2006). In this ease, Lewis has failed to show how a DNA analysis would aid his defense in any way. During trial, when the State presented Edwards with the straight razor that was retrieved from the vehicle driven by Lewis, Edwards identified it as the same straight razor that she had in her purse on the night of the robbery.

¶ 10. Second, both Edwards and Weekly identified Lewis as one of the two men who robbed them on July 2, 2010. Factors used to assess the credibility of a witness’s in-court identification include:

(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witnesses] degree of attention; (3) the accuracy of the witnesses] prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.

Bogan v. State, 754 So.2d 1289, 1292 (¶ 11) (Miss.Ct.App.2000) (quoting Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)). According to Edwards, she and Weekly got a good look at both of the robbers during the armed robbery. In addition to the in-court identifications, on the night of the robbery, both Edwards and Weekly identified Lewis from a photo array as one of the robbers.

¶ 11. Both of the victims made positive in-court identifications, to which Lewis did not object either during or post-trial. Also, the straight razor retrieved from Lewis’s vehicle was identified by Edwards as the same one inside her purse before it was taken from her at gunpoint. In light of these facts, we find that the evidence was sufficient to establish the elements of armed robbery beyond a reasonable doubt.

c. Possession of a Firearm

¶ 12. Lewis also argues that the State failed to prove that he had actual or physical possession of the handgun found in his vehicle. This argument is procedurally barred because it was not substantively raised before the trial court, and is raised for the first time on appeal. Terry v. State, 26 So.3d 378, 380-81 (¶8) (Miss.Ct.App.2009) (citing Jackson v. State, 856 So.2d 412, 415 (¶ 12) (Miss.Ct.App.2003)). However, notwithstanding the procedural bar, we find that the State met its burden of proving each of the elements of the charge beyond a reasonable doubt. The instruction given to the jury covering “possession” reads:

The term “[pjossession” as used in other instructions of the Court in this ease means actual, physical possession of a tangible item, but it also means ... knowingly exereisfing] dominion and control over a tangible item while aware of the presence and character of the particular item and [being] consciously and intentionally in possession, although not actual physical possession.

¶ 13. “Constructive possession may be shown by establishing that the [item] involved was subject to [the defendant’s] dominion or control.” Davis v. State, 817 So.2d 593, 596 (¶9) (Miss.Ct.App.2002) (quoting Curry v. State, 249 So.2d 414, 416 (Miss.1971)). The handgun, discovered by Officer Moore during a protective sweep of the vehicle, was found under the driver’s seat. Because Lewis was the driver of the vehicle, the handgun was subject to his dominion and control, even though it was not discovered in his actual physical possession. This issue is without merit.

II. Double Jeopardy

¶ 14. Next, Lewis argues that the imposition of separate sentences under Mississippi Code Annotated sections 97-37-5 and 97-37-37(2) violated his double-jeopardy protection against multiple punishments for the same offense. We disagree. Section 97-37-5(1) prohibits any person who has been previously convicted of a felony from possessing a firearm. Section 97-37-37(2) reads:

Except to the extent that a greater minimum sentence is otherwise provided by any other provision of law, any convicted felon who uses or displays a firearm during the commission of any felony shall, in addition to the punishment provided for such felony, be sentenced to an additional term of imprisonment in the custody of the Department of Corrections of ten (10) years, to run consecutively, not concurrently, which sentence shall not be reduced or suspended.

¶ 15. This Court has held that sentence-enhancement statutes under which additional terms of imprisonment are imposed do not trigger double-jeopardy violations. Mayers v. State, 42 So.3d 33, 45 (¶ 50) (Miss.Ct.App.2010). The rationale is that sentence enhancements do “not set out separate elements of the underlying felony.” Id. Section 97-37-37(2) merely imposes an elevated sentence for use or display of a firearm during the commission of a felony, and it does not delineate an independent substantive offense. This assignment of error is without merit.

¶ 16. For the reasons stated above, we affirm the convictions and sentences on all three counts.

¶ 17. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF COUNTS I AND II, ARMED ROBBERY, AND SENTENCE OF THIRTY YEARS FOR EACH COUNT, AND COUNT III, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCE OF TEN YEARS, AND TEN YEARS AS AN ENHANCEMENT FOR THE USE OR DISPLAY OF A FIREARM IN THE COMMISSION OF A FELONY, WITH THE SENTENCES IN COUNTS I, II, AND III TO RUN CONCURRENTLY TO EACH OTHER AND CONSECUTIVELY TO THE TEN-YEAR ENHANCEMENT, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . On May 6, 2009, Lewis was indicted for possession of cocaine and was placed on probation. He was charged with violating his probation on June 2, 2010, which included possession of marijuana and possession of a firearm by a previously convicted felon. The type of handgun was the same caliber handgun used in the instant armed robberies. For that violation, Lewis was, again, placed on probation.


author: GRIFFIS, P.J.,

text:
    CHAPEL HILL, LLC and Pearlington Dirt, LLC, Appellants v. SOILTECH CONSULTANTS, INC., Appellee.
    No. 2012-CA-01076-COA.
    Court of Appeals of Mississippi.
    May 14, 2013.

      Daniel Brian Allen, attorney for appellants.
    Danny Alton Drake, David Bonds Ellis, Jackson, attorneys for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. In this breach-of-contract case, Chapel Hill LLC and Pearlington Dirt LLC appeal the grant of summary judgment in favor of SoilTech Consultants Inc. Chapel Hill and Pearlington argue that there were genuine issues of material fact in dispute, and summary judgment was not proper as a matter of law. We find no error and affirm.

FACTS

¶2. Chapel Hill contracted with the United States Army Corp of Engineers (USACE) to supply earthen materials for the repair of the Mississippi River levee in Orleans Parish, Louisiana. On December 29, 2009, SoilTech contracted with Chapel Hill and Pearlington to provide soil tests. Pearlington unconditionally guaranteed all of Chapel Hill’s obligations.

¶ 3. On July 21, 2010, the USACE partially terminated its contract with Chapel Hill out of convenience and not based on any fault.

¶ 4. On October 28, 2011, SoilTech filed a complaint against Chapel Hill and Pear-lington. SoilTech alleged that Chapel Hill and Pearlington were in breach of contract for their failure to pay $278,488.33. Chapel Hill and Pearlington filed a responsive pleading.

¶ 5. On February 17, 2012, SoilTech filed its motion for summary judgment. On April 24, 2012, after a hearing not included in the record, the circuit court granted SoilTech’s motion for summary judgment and awarded a total amount of $314,134.83, which included attorney’s fees and interest.

¶ 6. On May 2, 2012, Chapel Hill and Pearlington filed a motion to reconsider/set aside the judgment or, in the alternative, a motion for a new trial, under Mississippi Rule of Civil Procedure 59 (the “motion to reconsider”). After a hearing, the circuit court denied the motion. Chapel Hill and Pearlington filed their notice of appeal, and the case has been deflected to this Court.

ANALYSIS

¶ 7. Chapel Hill and Pearlington’s notice of appeal states that they appeal the April 24, 2012 judgment granting SoilTech’s motion for summary judgment and the June 25, 2012 order denying Chapel Hill and Pearlington’s motion to reconsider. The motion to reconsider does not have any effect on this appeal.

¶8. The motion to reconsider simply states that the grant of the summary judgment was “against the overwhelming weight of the evidence and ... should be set aside.” The motion does not provide any reason why a new trial should be granted (Rule 59(a)) or any reason to alter or amend the judgment (Rule 59(e)). Further, the brief filed by Chapel Hill and Pearlington does not provide any argument as to why it was error for the circuit court to deny the motion to reconsider. Instead, the real issue is whether it was proper to grant SoilTech a summary judgment.

¶ 9. Our standard of review for a grant of summary judgment is the same standard as that of the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. McMillan v. Rodriguez, 823 So.2d 1173, 1176 (¶ 9) (Miss.2002).

This Court employs a de novo standard of review ... and examines all the evi-dentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should ... be entered in his favor. Otherwise, the motion should be denied. 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. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant should be given the benefit of the doubt.

Id. (citation omitted).

¶ 10. “Questions concerning construction of contracts are questions of law.” Henry v. Moore, 9 So.3d 1146, 1152 (¶ 15) (Miss.Ct.App.2008) (citing Parkerson v. Smith, 817 So.2d 529, 532 (¶7) (Miss.2002)). Contract interpretation is a three-step process:

First, we look to the “four corners” of the agreement and review the actual language the parties used in their agreement. When the language of the contract is clear or unambiguous, we must effectuate the parties’ intent. However, if the language of the contract is not so clear, we will, if possible, harmonize the provisions in accord with the parties’ apparent intent. Next, if the parties’ intent remains uncertain, we may discre-tionarily employ canons of contract construction. Finally, we may also consider parol or extrinsic evidence if necessary.

Williams v. Williams, 37 So.3d 1196, 1200 (¶ 10) (Miss.Ct.App.2009) (citations and quotations omitted); see also Pursue Energy Corp. v. Perkins, 558 So.2d 349, 352 (Miss.1990). When a contract is clear and unambiguous, this Court is not “concerned with what the parties may have meant or intended but rather with what they said, for the language employed in a contract is the surest guide to what was intended.” Shaw v. Burchfield, 481 So.2d 247, 252 (Miss.1985).

¶ 11. Chapel Hill had a federal contract with the USACE to supply earthen materials for the repair of a levee in Louisiana. The contract provided that the government has the unilateral right to terminate the contract for convenience. On July 21, 2010, the government exercised its contractual right and terminated Chapel Hill’s contract.

¶ 12. SoilTech contracted with Chapel Hill and Pearlington to provide soil tests under Chapel Hill’s government contract. SoilTech was provided a copy of the contract between Chapel Hill and the USACE. Chapel Hill and Pearlington argue that SoilTech entered a written contract that required SoilTech to perform soil tests as part of Chapel Hill’s contract with the USACE. Because the USACE terminated its contract, the contract volumes were reduced by approximately seventy percent, which reduced the amount Chapel Hill and Pearlington would owe SoilTech. Chapel Hill and Pearlington also claim that this dispute in the amount that may be due and owing creates a genuine issue of a material fact such that summary judgment is not appropriate.

¶ 13. Chapel Hill and Pearlington assert that the plain meaning of the contract precludes summary judgment. They cite two paragraphs.

¶ 14. First, Chapel Hill argues that under paragraph 7 of its contract with Soil-Tech, they were required to negotiate a price reduction as a result of a volume reduction. Paragraph 7 states:

Changes. [Chapel Hill] reserves the right by written change order or amendment to make changes in requirements, amount of work, or engineering time schedule adjustments; and [SoilTech] and [Chapel Hill] shall negotiate appropriate adjustments in fee and/or schedule acceptable to both parties to accommodate any changes.

(Emphasis added). SoilTech responds that Chapel Hill never requested a change order in writing, so under the contract’s terms, there was no requirement to negotiate a fee adjustment.

¶ 15. Second, Chapel Hill argues that because the government terminated the contract, such governmental action resulted in termination under paragraph 22. Paragraph 22 states:

Force Majeure. Neither [Chapel Hill] nor [SoilTech] shall be liable for any fault or delay caused by any contingency beyond their control, including, but not limited to, acts of God, wars, strikes, walkouts, fires, natural calamities, or demands or requirements of governmental agencies.

(Emphasis added). SoilTech responds that paragraph 22 is not applicable because it provides certain conditions under which neither Chapel Hill nor SoilTech “shall be liable for any fault or delay.” Thus, because SoilTech makes claims for services actually provided, there is not a claim for fault or delay. SoilTech only claims that Chapel Hill failed to pay its bill.

¶ 16. To support its motion for summary judgment, SoilTech filed an affidavit from J. Clark Robinson, its chief financial officer. Clark testified that “Chapel Hill and Pearlington jointly agreed to pay Soil-Tech for its services within thirty (30) days of the date SoilTech submitted an invoice for same.” Clark also stated that under the contract’s terms, payment to SoilTech was “not dependent on any factor except SoilTech’s ability to provide services in accordance with generally accepted standards.” Clark stated that SoilTech provided and billed for $437,518.50 worth of services, $159,030.17 was paid, and the bal-anee had not been paid despite demand. Clark stated that under the terms of the contract, nonpayment was a material breach of the contract.

¶ 17. Chapel Hill and Pearlington responded to the motion for summary judgment with an affidavit from Johnny Dollar, the managing member of Chapel Hill and Pearlington. Dollar testified that SoilTech “was requested to acknowledge a price adjustment per the cited clause.” Dollar also stated that “[biased on these facts, there is no breach of contract as there has yet to be a determination of whether or not any further monies are due and owing the plaintiff.”

¶ 18. In response, SoilTech filed the affidavit of Michael Volk, the president of SoilTech. Volk stated that Chapel Hill never requested SoilTech to stop the work or to negotiate a downward adjustment in price or quantity. Volk stated that even after the USACE partially terminated Chapel Hill’s contract, Chapel Hill requested SoilTech to continue the work and assured SoilTech that it would be paid for the work. Volk further testified that the only request for a downward adjustment was in an email that he received from Dollar over four months after SoilTech filed its complaint.

¶ 19. In a rebuttal affidavit, Dollar stated that on July 22, 2010, SoilTech was notified of the government’s reduction in volume. Dollar stated that he had verbally requested a price adjustment. Dollar also stated that SoilTech had not pursued its remedies available through the USACE.

¶ 20. SoilTech responded that the contract did not require SoilTech to pursue remedies through the USACE. The contract at issue contained no term that conditioned payment to SoilTech on payment by the USACE to Chapel Hill. The letter from the USACE to Chapel Hill that partially terminated the contract stated that Chapel Hill was to “[ijmmediately stop all work [and] terminate subcontracts....”

¶ 21. Chapel Hill did not produce any evidence to rebut SoilTech’s statement that Chapel Hill asked SoilTech to continue to work. The affidavits filed do not indicate that there is a genuine issue in dispute over this issue. There is no evidence that Chapel Hill asked SoilTech to stop the work after the government terminated its contract with Chapel Hill. Regardless of the fact that the government told Chapel Hill to “terminate subcontracts,” an email in July 2010 from Chapel Hill to SoilTech stated that Chapel Hill was trying to “get a better understanding of’ what the termination meant. A letter from Chapel Hill to SoilTech in August 2010 stated that Chapel Hill was “awaiting detailed instructions from the [gjovernment.”

¶ 22. Chapel Hill has not offered any evidence that it ever questioned or complained about any invoices during the time of performance. The contract was not a “pay if paid” contract. The contract’s language is unambiguous that Chapel Hill’s obligation to pay SoilTech was not conditioned on Chapel Hill being paid by the USACE nor any other factor except Soil-Tech’s actual performance of the work. There is no dispute about whether Soil-Tech did the amount of work that was billed.

¶ 23. The plain language of the contract clearly established that Chapel Hill had a contract where it agreed to pay SoilTech for its services, conditioned on nothing but SoilTech’s ability to provide the services. Paragraph 21 of the contract, in pertinent part, states:

Payment for [SoilTechj’s services is not contingent on any factor except [Soil-Techj’s ability to provide services in a manner consistent with that standard of care and skill ordinarily exercised by members of the profession currently practicing in the same locality under similar conditions.... [SoilTech] shall be entitled to reasonable attorney’s feés....

¶ 24. There is no dispute that SoilTech performed the work as required under the contract, Chapel Hill did not pay what it owed and thus breached the contract. There was not a genuine issue of material fact as to the validity of the contract, the breach, or how much outstanding money Chapel Hill and Pearlington owed.

¶ 25. Dollar’s affidavit does not state specifically whether an adjustment was requested while work was in progress or any other pertinent specifics. Conclu-sory, self-serving affidavits are not a basis to avoid summary judgment. Baker Donelson Bearman Caldwell & Berkowitz, P.C. v. Seay, 42 So.3d 474, 487 (¶ 35) (Miss.2010) (citation omitted).

¶ 26. Therefore, as to SoilTech’s breach-of-contract claim, there were no triable; genuine issues of material fact, and the circuit court correctly granted summary judgment. We find no error and affirm.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: PER CURIAM.

text:
    Alvin MURRAY v. PRISON HEALTH SERVICES, INC., and Kay Wilson, R.N., H.S.A.
    2060068.
    Court of Civil Appeals of Alabama.
    Nov. 30, 2012.
    Alvin Murray, pro se.

      R. Brett Garrett of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellees.
   PER CURIAM.

Alvin Murray, an inmate at Easterling Correctional Facility (“the prison”), appeals from the judgment dismissing his civil action against Gwendolyn Mosley, who was the warden of the prison, Prison Health Services, Inc., and Kay Wilson, who was the administrator of Prison Health Services (Prison Health Services and Wilson are hereinafter collectively referred to as “PHS”). In his action, which Murray initiated by filing a petition for a writ of mandamus, Murray appears to have sought an order directing Mosley and PHS to provide him with medical treatment. He also asserted tort claims against Mosley and PHS. The case-action summary indicates that service was perfected only as to PHS. There is no evidence that there was an attempt to serve Mosley, and she was never a participant in this case. See Rule 4, Ala. R. Civ. P. Because Mosley was never a party in this action, the judgment dismissing Murray’s action against PHS in its entirety was final for purposes of appeal. See Laney v. Garmon, 25 So.3d 478, 480 (Ala.Civ.App.2009) (“A judgment is generally not final unless all claims, or the rights or liabilities of all parties, have been decided.”).

In his petition, filed on July 30, 2004, Murray claimed that PHS denied him access to medical care that he said was necessary to treat his osteosclerosis. Murray defined osteosclerosis as “an abnormal hardening of the bones.” He claimed that, without treatment, the condition would grow worse. On October 19, 2004, Murray filed a motion to amend his “complaint,” in which he alleged that PHS had refused to “take corrective action” by performing surgery on a slipped disk in his back. Murray claimed that “[t]he medical treatment needed is inadequate [sic] and not corrective” and that “the decision not to order surgery is a substantial departure from accepted professional judgment.”

The trial court took no action on Murray’s petition, and on April 20, 2006, Murray filed a “supplemental complaint,” stating that, since his original petition had been filed in July 2004, his condition “had only worsened.” He also alleged that PHS had violated the Alabama Medical Liability Act (“the AMLA”), § 6-5-480 et seq. and § 6-5-540 et seq., by providing him with “substandard medical care.” As a result of that substandard care, Murray alleged, he had been made to suffer pain for a long period, which, he said, amounted to cruel and unusual punishment. Apparently, while the litigation was pending Murray received some treatment for his physical complaints. In the supplemental complaint, he stated that, although the treatment he was receiving at that time, “though not a complete denial” of treatment, “is so substandard as it amounts to basically no treatment at all, and/or amounts to such substandard medical treatment” as to constitute cruel and unusual punishment.

On August 8, 2006, PHS filed a motion asking the trial court to dismiss Murray’s action against it. In the motion, which did not reference Mosley, PHS argued that Murray’s pleadings failed to include sufficient detail and specificity regarding the alleged medical malpractice, which is required for an action filed pursuant to the AMLA. The motion also included a laundry list of 12 other grounds for dismissal of the action, including, but not limited to, various forms of immunity, Murray’s failure to exhaust administrative remedies, and grounds asserting improper venue and lack of jurisdiction. On the same day the motion was filed, the trial court made a handwritten notation on the front of the motion indicating that it was granted. The case-action summary indicates that Murray’s action was dismissed without prejudice on August 21, 2006.

On August 29, 2006, Murray timely filed his notice of appeal to the Court of Criminal Appeals. This court’s docket sheet indicates that the Court of Criminal Appeals transferred the appeal to this court on October 20, 2006. On November 14, 2006, this court transferred the appeal to the Alabama Supreme Court for lack of subject-matter jurisdiction. On August 15, 2012, the Alabama Supreme Court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975, and the appeal was submitted on briefs on October 22, 2012.

In his appellate brief, Murray framed the issue on appeal as whether the trial court erred in dismissing his action without conducting an evidentiary hearing. However, when one reads the body of the argument portion of his brief, it is apparent that Murray is claiming that his pleadings set forth allegations on which, Murray says, he is likely to succeed on the merits. Therefore, he says, he should have been given the opportunity to proceed with the action.

We first note that Murray’s pleadings are styled both as a petition for a writ of mandamus and as a complaint. Regardless of the caption, Murray’s pleadings initiated a civil action against PHS. Thus, his pleadings are actually a complaint and amended complaints. See King Mines Resort, Inc. v. Malachi Min. & Minerals, Inc., 518 So.2d 714, 718 (Ala.1987) (“This Court is committed to the proposition that it will treat a motion (or other pleading) and its assigned grounds according to its substance.”); see also Gibson v. Staffco, L.L.C., 63 So.3d 1272, 1273-74 (Ala.Civ.App.2010) (same). Furthermore, although PHS moved for a dismissal on several grounds permitted by Rule 12(b), Ala. R. Civ. P., the only legal argument asserted as to any of those grounds was that Murray failed to state a claim for which relief can be granted, pursuant to Rule 12(b)(6).

The standard of review applicable to an appeal of a trial court’s judgment granting a Rule 12(b)(6) motion to dismiss is well settled. In Crosslin v. Health Care Authority of Huntsville, 5 So.3d 1193, 1195 (Ala.2008), our supreme court stated:

“In considering whether a complaint is sufficient to withstand a motion to dismiss under Rule 12(b)(6), Ala. R. Civ. P., a court ‘must accept the allegations of the complaint as true.’ Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002) (emphasis omitted). ‘ “The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [it] to relief.” ’ Smith v. National Sec. Ins. Co., 860 So.2d 343, 345 (Ala.2003) (quoting Nance v. Matthews, 622 So.2d 297, 299. (Ala.1993)). In determining whether this is true, a court considers only whether the plaintiff may possibly prevail, not whether the plaintiff will ultimately prevail. Id. Put another way,
1 “a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.”’ Id. (emphasis added).”

In both its motion to dismiss and on appeal, PHS has argued that Murray failed to state a claim of medical negligence with the detail and specificity required under § 6-5-551, Ala.Code 1975. That statute provides:

“In any action for injury, damages, or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care, whether resulting from acts or omissions in providing health care, or the hiring, training, supervision, retention, or termination of care givers, the Alabama Medical Liability Act shall govern the parameters of discovery and all aspects of the action. The plaintiff shall include in the complaint filed in the action a detailed specification and factual description of each act and omission alleged by plaintiff to render the health care provider liable to plaintiff and shall include when feasible and ascertainable the date, time, and place of the act or acts. The plaintiff shall amend his complaint timely upon ascertainment of new or different acts or omissions upon which his claim is based; provided, however, that any such amendment must be made at least 90 days before trial. Any complaint which fails to include such detailed specification and factual description of each act and omission shall be subject to dismissal for failure to state a claim upon which relief may be granted. Any party shall be prohibited from conducting discovery with regard to any other act or omission or from introducing at trial evidence of any other act or omission.”

In Mikkelsen v. Salama, 619 So.2d 1382, 1384 (Ala.1993), our supreme court discussed the pleading requirements of a claim brought pursuant to the AMLA, stating:

“[W]hen a plaintiff files a complaint alleging that a health care provider breached the standard of care owed to the plaintiff, although every element of the cause of action need not be stated with particularity, the plaintiff must give the defendant health care provider fair notice of the allegedly negligent act and must identify the time and place it occurred and the resulting harm. If the complaint affords the defendant health care provider fair notice of these essential elements, the courts should strive to find that the complaint includes the necessary ‘detailed specification and factual description of each act and omission alleged by plaintiff to render the health care provider liable to plaintiff.’ Section 6-5-551; see Comments, Rule 9[, Ala. R. Civ. P.]; see, e.g., Keller v. Security Federal Savings & Loan Ass’n, 555 So.2d 151 (Ala.1989); Kabel v. Brady, 519 So.2d 912 (Ala.1987).”

In reading Murray’s pleadings together, Murray alleges only generally that the medical care he was receiving at the prison was inadequate. He claims in his amended complaint that “[t]he decision not to order surgery [for a slipped disk in his lower back] is a substantial departure from accepted professional judgment.” However, he does not provide any of the necessary factual detail that § 6-5-551 requires to sustain a claim of medical malpractice. Murray explicitly asserted a claim of medical malpractice against PHS only in the “supplemental complaint.” The claim states that the prison health-care provider “has knowingly and willingly violated” the AMLA. Again, no specific act of malpractice is asserted. Therefore, we agree with PHS that Murray’s pleadings failed to include the requisite detail and factual description of an act of malpractice by PHS and that, therefore, the AMLA claim was due to be dismissed.

In addition to the AMLA claim, however, in his pleadings Murray sought to compel “prison officials” “to render the proper medical care needed” to treat os-teosclerosis. In his amended complaint, Murray appears also to have sought to compel treatment for a slipped disk in his lower back. Murray’s pleadings are not always clear, but in considering the pleadings “ ‘ “most strongly in [his] favor,” ’ ” Crosslin, 5 So.3d at 1195, his request to compel medical treatment appears to have been directed at both PHS and Mosley.

“ ‘An inmate in a state penal institution has a constitutional right to adequate medical treatment. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Fountain v. State, 648 So.2d 591 (Ala.Civ.App.1994). This court has further held that “[a]n evidentiary hearing is warranted in order for the trial court to determine whether an inmate in a state penal institution is receiving adequate medical attention.” Fountain, 648 So.2d at 592 (citations omitted).’
“Perry [v. State Dep’t of Corr.,] 694 So.2d [24,] 25 [ (Ala.Civ.App.1997) ].”

Crouch v. Allen, 76 So.3d 264, 266 (Ala.Civ.App.2011).

To the extent that Murray’s pleadings sought an order directing PHS to provide him with adequate medical care, there is no question that Murray would be entitled to the relief he sought if he made the proper showing of proof. In other words, Murray stated a claim for which relief can be granted. Accordingly, the trial court erred in dismissing the action as to that claim.

Murray also asserted that, in delaying or denying him the medical care he needed, the “named defendants,” which would include PHS, acted with deliberate indifference to his medical needs, causing him to suffer pain for a long period. It is true that a complaint that alleges that a health-care provider has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. King v. Correctional Med. Servs., Inc., 919 So.2d 1186, 1192 (Ala.Civ.App.2005) (citing Estelle v. Gamble, 429 U.S. 97, 105-06, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). However, as the court in King also noted:

“ ‘[Deliberate indifference to serious medical needs of prisoners constitutes the “unnecessary and wanton infliction of pain,” ’ and is a violation of the Eighth Amendment right to be free from cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Deliberate indifference can be manifested by prison personnel intentionally denying or delaying access to medical care, by prison personnel interfering with prescribed treatment, or by prison doctors responding indifferently to a prisoner’s medical needs. Estelle, 429 U.S. at 104-05, 97 S.Ct. 285.”

King, 919 So.2d at 1192 (emphasis added). Cf. Bedsole v. Clark, 33 So.3d 9, 15 (Ala.Civ.App.2009) (summary judgment was proper as to a physician against whom a claim of deliberate indifference had been alleged when inmate presented no evidence indicating that the physician had acted with deliberate indifference in rendering treatment to the inmate).

Being mindful of our duty to view the allegations in Murray’s pleadings most strongly in his favor and that a Rule 12(b)(6) dismissal “ ‘ “is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief,” ’ ” we conclude that, in alleging that PHS denied or delayed medical treatment to him, Murray has set forth a valid claim of deliberate indifference. Crosslin, 5 So.3d at 1195 (emphasis omitted). In reaching this conclusion, we do not consider whether Murray will ultimately prevail on his claim, only whether he might possibly prevail. Id. However, because Murray set forth a valid claim of deliberate indifference against PHS, the trial court erred in dismissing that claim as well.

For the reasons set forth above, we affirm that portion of the judgment dismissing Murray’s claim of medical malpractice. However, we reverse the judgment as to the claims seeking to compel medical treatment and asserting that PHS acted with deliberate indifference in denying or delaying needed medical treatment. The cause is remanded to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

BRYAN, J., concurs in the result, without writing.

      . In its brief on appeal, PHS states that, although Murray has never notified it that he has been released from the prison, the Alabama Attorney General's office has indicated that Murray is no longer incarcerated. If that is the case, Murray would no longer be under the care of the prison’s health services and Murray’s request that this court direct the prison to provide him with certain medical care would be moot. As our supreme court stated in Underwood v. Alabama State Board of Education, 39 So.3d 120, 129 (Ala.2009), " '[a] case is moot when there is no real controversy and it seeks to determine an abstract question which does not rest on existing facts or rights' ” (quoting State ex rel. Eagerton v. Convin, 359 So.2d 767, 769 (Ala.1977) (emphasis omitted)). See also, e.g., King v. Campbell, 988 So.2d 969, 976 (Ala.2007) (" ‘We have held that if an event happening after hearing and decree in circuit court, but before appeal is taken, or pending appeal, makes determination of the appeal unnecessary or renders it clearly impossible for the appellate court to grant effectual relief, the appeal will be dismissed.' ” (quoting Morrison v. Mullins, 275 Ala. 258, 259, 154 So.2d 16, 18 (1963))).
      However, PHS did not attempt to supplement the record on appeal with evidence regarding Murray’s status. Because we are limited to consideration of the record on appeal, we must address Murray’s appeal. See Beverly v. Beverly, 28 So.3d 1, 4 (Ala.Civ.App.2009) ("An appellate court is confined in its review to the appellate record!;] that record cannot be 'changed, altered, or varied on appeal by statements in briefs of counsel,' and the court may not ‘assume error or presume the existence of facts as to which the record is silent.' Quick v. Burton, 960 So.2d 678, 680-81 (Ala.Civ.App.2006).”).

      . We note that, in the style of the "supplemental complaint,” Murray included the name "Dr. Darbouze.” Wilson's name was not included in the style. Murray does not identify a Dr. Darbouze in the "supplemental complaint,” and the case-action summary does not show that such an individual was ever served in this case. Thus, “Dr. Dar-bouze” is not a party in this action. See Rule 4, Ala. R. Civ. P.