author: GRIFFIS, P.J., IRVING, P.J.,

text:
    Guy E. EVANS, Appellant v. Joel W. HOWELL, III, Appellee.
    No. 2011-CA-01414-COA.
    Court of Appeals of Mississippi.
    March 5, 2013.
    Rehearing Denied June 25, 2013.
    Certiorari Denied Sept. 12, 2013.
    James D. Shannon, Hazlehurst, Jamie Nicole Hardison-Edwards, Kathryn Lindsey White, Hazlehurst, attorneys for appellant.

      Clifford B. Ammons, Paul Stephenson, attorneys for appellee.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Guy E. Evans appeals the grant of summary judgment in favor of Joel Howell. The trial court determined that the statute of limitations for a legal-malpractice claim had expired before the complaint was filed. Evans argues that the grant of summary judgment was not proper. We find no error and affirm.

FACTS

¶ 2. Robert J. Giordano and Evans owned and operated several businesses. They formed Evans/Giordano Inc. (“EGI”) to sell insurance and related products. Giordano and Evans each owned fifty percent of the stock in EGI. Joel Howell performed legal services for EGI and advised Giordano and Evans about various corporate and other legal issues.

¶ 3. In 1996, Giordano and Evans had incorporated two other businesses: Safety Risk Services Inc. (“SRS”), and Insurance Premium Services Inc. (“IPS”). Thus, Giordano and Evans were the sole stockholders of three corporations, EGI, SRS, and IPS. EGI was a profitable entity, while SRS and IPS were new companies with little or no assets.

¶ 4. Giordano and Evans wanted to enter a buyout agreement. In the event of the death of either Giordano or Evans, this agreement would allow the surviving stockholder to purchase all stock owned by the deceased stockholder. Likewise, the estate of the deceased stockholder would be required to sell the stock to the surviving stockholder. The agreement would be funded by the purchase of life insurance policies on the stockholders. Giordano and Evans asked Howell to prepare this agreement.

¶ 5. On August 16, 1996, Giordano and Evans signed a “Purchase and Sale Agreement” (the “1996 agreement”). This agreement was prepared by Howell. It provided:

Guy E. Evans and Robert J. Giordano are sole stockholders of Evans/Giordano, Inc., a Mississippi corporation (hereinafter referred to as the Corporation, each owning fifty percent (50%) of the stock of the Corporation.
The purpose of this Agreement is twofold: (a) to provide for the purchase by the survivor of the decedent’s stock interest in the Corporation; and (b) to provide the funds necessary to carry out such purchase.
It is, therefore, mutually agreed by Guy E. Evans and Robert J. Giordano as follows:
1. If either stockholder should desire to dispose of any of his stock in the Corporation during his lifetime, he shall first offer in writing to sell his stock to the other stockholder. The offer shall be based on a price determined in accordance with the provisions of paragraph 5 hereof....
2. The parties hereto are insured by several policies, a schedule of which is attached hereto and incorporated by reference herein as Exhibit “A.” ...
3. This Agreement shall extend to and shall include all additional policies issued pursuant hereto; such additional policies shall be added to the list in Schedule “A,” attached hereto.
4. Upon the death of either stockholder, the survivor shall purchase and the estate of the decedent shall sell the stock interest now owned or hereafter acquired by the stockholder who is the first to die. The purchase price of such interest shall be computed in accordance with the provisions of paragraph 5 of this Agreement.
5. The outstanding capital stock of the Corporation consists of 1,000 shares which are owned and held by the stockholders as follows:
Guy E. Evans. 500 shares
Robert J. Giordano. 500 shares
Unless and until changed as hereinafter provided, the value of each share of stock of the Corporation held by each stockholder shall be $1,500.00. Said value includes an amount mutually agreed upon as representing the goodwill of the Corporation as a going concern. Within thirty days following the end of each fiscal year, Guy E. Evans and Robert J. Giordano shall redetermine the value of each share of stock. Such value shall be endorsed on Schedule B, attached hereto....
6. Each stockholder agrees that the proceeds of the policies subject to this Agreement shall be applied toward the purchase price set forth above....
9. This Agreement may be altered, amended or terminated by a writing signed by both stockholders....

¶ 6. Although Giordano and Evans jointly owned two other companies at the time, SRS and IPS, the 1996 agreement only applied to the purchase and sale of EGI stock.

¶ 7. Between 1996 and 2004, Evans and Giordano formed two new corporations: Insurance Network Services Inc. (“INS”), and Evans/Giordano of Florida Inc. (“EGF”). Giordano and Evans operated INS, EGF, SRS, and IPS as “sister companies” of EGI.

¶ 8. By 2004, the sister companies were gaining success and bringing in significant income and profits. In September 2004, Giordano asked Howell to draft a new buyout agreement. Howell drafted a new “Purchase and Sale Agreement” (the “2004 agreement”) and provided it to Giordano and Evans. This agreement was to provide that the surviving stockholder purchase, using insurance proceeds, the deceased stockholder’s interest in all five companies for $3,000,000. The proposed 2004 agreement was never signed by Gior-dano and Evans.

¶ 9. In March 2005, Giordano and Evans asked Howell to draft another agreement (the “2005 agreement”), which read in its entirety:

The parties to the buy/sell agreement of 1996 agree that, pending completion of a new agreement, the prior business valuation is hereby increased to three million dollars, with life insurance policies currently in place in that amount.

Evans and Giordano signed the 2005 agreement.

¶ 10. Giordano died on May 25, 2006. Thereafter, Evans filed a claim for the life insurance death benefits payable as a result of Giordano’s death. On August 8, EGI received two checks from Guardian Life Insurance Company of America in the amounts of $2,013,541.60 and $1,006,770.80.

¶ 11. On November 1, 2006, Giordano’s estate filed suit against Evans in the Madison County Circuit Court. Giordano’s estate claimed that the $3,000,000 from Gior-dano’s life insurance policy was for the purchase of Giordano’s EGI stock only, not Giordano’s interest in the sister companies. Evans claimed that the insurance proceeds covered not only Giordano’s interest in EGI, but also Giordano’s interest in the sister companies because these companies were identified in the 2004 agreement and included in the most recent valuation. Evans settled with Giordano’s estate and paid more than the $8,000,000 that he received in life insurance proceeds for the stock in all of the corporations jointly owned by Giordano and Evans.

¶ 12. On May 18, 2009, Evans filed his complaint for legal-malpractice against Howell. Evans alleged that Howell negligently failed to prepare the 2005 agreement to cover all corporate entities formed by Giordano and Evans. Further, Evans argued that the problems arising from Howell’s negligence in drafting the “referenced documents” surfaced after the death of Giordano. He claimed Howell knew or should have known that the sister companies would be involved in the purchase and sale agreement, and he was specifically so instructed. As a result of Howell’s failure to amend the purchase and sale agreement, Evans was forced to pay money in excess of the purchased life insurance for the stock of the deceased Giordano. But for Howell’s negligence, Evans claimed, the life insurance purchased on Giordano would have covered the entire cost of Evans acquiring Giordano’s stockholder’s interest.

¶ 13. On October 4, 2012, Howell filed a motion for summary judgment. Howell claimed the statute of limitations had expired before Evans commenced this action. After a hearing, the Honorable Winston Kidd, Hinds County Circuit Judge, found the limitations period had expired and Evans’s claim was time-barred. The court entered an order granting summary judgment on November 12, 2010. Evans filed a motion for reconsideration, which was denied by order dated August 19, 2011. Evans then perfected this appeal.

STANDARD OF REVIEW

¶ 14. Appellate courts review de novo a trial court’s grant of summary judgment. Williamson ex rel. Williamson v. Keith, 786 So.2d 390, 393 (¶ 10) (Miss.2001). An appellate court examines all evidentiary matters before it “in the light most favorable to the party against whom the motion has been made.” Id. “If ... 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.” Id. “[T]he burden of demonstrating that no genuine issue of fact exists is on the moving party.” Id.

ANALYSIS

¶ 15. Pursuant to Mississippi Code Annotated section 15-1-49 (Rev.2003), a legal-malpractice claim must be brought within three years after the claim accrued. Channel v. Loyacono, 954 So.2d 415, 420 (¶ 13) (Miss.2007). When Evans’s legal-malpractice claim accrued, he had three years from that date to file his lawsuit. Evans’s complaint was originally filed on May 13, 2009. Therefore, if Evans learned or by reasonable diligence should have learned of his claim before May 13, 2006, his claim is barred by the statute of limitations.

¶ 16. Howell argues that the statute of limitations began to run when the 2005 agreement was signed, on March 10, 2005. Howell contends that the limitations period on Evans’s claim had expired before the complaint was filed. The trial court agreed and granted summary judgment.

¶ 17. Evans argues that his claim accrued, at the earliest, when the complaint was filed by Giordano’s estate against him, which was on November 1, 2006. Thus, since his claim was filed on May 13, 2009, Evans argues that his claim was timely because his complaint was filed before the statute of limitations expired. Evans also argues that March 10, 2005, could not be the accrual date because he was incapable of determining Howell’s negligence before Giordano’s estate filed a lawsuit and raised the issue.

¶ 18. The issue of whether the statute of limitations has run is a question of law. Wayne Gen. Hosp. v. Hayes, 868 So.2d 997, 1000 (¶ 11) (Miss.2004). Evans does not argue that the trial court was incorrect to decide when the claim began to accrue or that this issue was a mixed question of fact and law that would be appropriate for the jury to decide.

¶ 19. The Mississippi Supreme Court has adopted the discovery rule for legal-malpractice actions. Smith v. Sneed, 638 So.2d 1252, 1258 (Miss.1994). As a result, the statute of limitations begins to run on the date that the client learns or, through the exercise of reasonable diligence, should learn of his lawyer’s negligence. Id. at 1256. Recently, the supreme court followed Sneed and reasoned:

The discovery rule is applied when the facts indicate that “it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act.” In Sneed, the Court found that the discovery rule applies when it would be impractical to require a layperson to have discovered the malpractice at the time it happened. This is because requiring a layperson to ascertain legal malpractice at the time it occurs would necessitate the retention of a second attorney to review the work of the first.

Bennett v. Hill-Boren, P.C., 52 So.3d 364, 369 (¶ 15) (Miss.2011) (internal citations omitted).

¶ 20. Both parties cite Channel v. Loyacono, 954 So.2d 415, 420 (¶ 13) (Miss.2007), as authority for the question of when a legal-malpractice claim would “accrue.” In Channel, the plaintiffs were represented by attorneys Paul Loyacono and Scott Verhine in mass tort litigation (Fen-phen). Id. at 418 (¶ 2). The engagement contract authorized Loyacono and Verhine to associate other lawyers to assist them. Id. Loyacono and Verhine began settlement discussions with the defendant in “late November and early December 2000.” Id. at (¶4). They presented settlement offers to their clients, some of whom settled and some of whom did not. Id. at 418-19 (¶¶4-5). They negotiated further and ultimately settled all of their clients’ cases. Id. at 419 (¶ 5). All of their clients received their settlement funds on January 26, 2001. Id.

¶ 21. Two of the lawyers Loyacono and Verhine associated began to call the clients and challenge the validity of the settlements. Id. at (¶¶ 6-7). In several of the cases, the associated lawyers filed a motion that “accused Loyacono and Verhine of acting dishonestly, negligently, and fraudulently in negotiating the settlements.” Id. at (¶ 7). At the hearing, “all of the clients testified that Loyacono and Verhine had acted dishonestly, negligently, and fraudulently in negotiating their settlements!;] each of them testified that they had signed their settlement agreements, received the proceeds, and considered their cases settled.” Id. at (¶8). In April 2004, the court determined that the cases were knowingly and voluntarily agreed to and were settled. Id. at (¶ 9).

¶ 22. On January 5, 2004, the clients filed a legal-malpractice action against Loyacono and Verhine. Id. at 419-20 (¶ 10). Loyacono and Verhine field a motion for summary judgment and argued that their claims were barred by the statute of limitations. Id. The trial court determined that the claims of malpractice “would have occurred in November and December 2000 when Loyacono and Ver-hine negotiated and obtained settlement offers and presented them to the clients for acceptance or rejection.” Id. at 420 (¶ 11). The court found:

[TJhis Court [has] held that “the statute of limitations in a legal malpractice action properly begins to run on the date the client learns or through the exercise of reasonable diligence should learn of the negligence of his lawyer.” This Court has said that the discovery rule is to be applied when “the plaintiff will be precluded from discovering harm or injury because of the secretive or inherently undiscoverable nature of the wrongdoing in question,” or it may be applied “when it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act.” Given this precedent, it must be determined whether the alleged injury in this case was secretive or inherently undiscoverable, or in the alternative, whether the plaintiffs, as laymen, could not have reasonably been expected to perceive the injury at the time of the alleged wrongful act.
The “secretive or inherently undiscoverable” standard is applicable where there is some piece of physical evidence that is the subject of the test. There is no allegation in this case that there was any physical evidence that was undiscovera-ble. Therefore, we will focus on the layman standard.

Channel, 954 So.2d at 421 (¶¶ 19-20) (internal citations omitted). The court reversed the summary judgment on the ground that it could not determine when all the plaintiffs had notice of malpractice. Id. at 423 (¶ 26).

¶ 23. Here, there was nothing “secretive or inherently undiscoverable” about Howell’s preparation of and the execution of the 2005 agreement. Further, we can determine whether Evans, “as [a] laym[a]n, could not have reasonably been expected to perceive the injury at the time of the alleged wrongful act.” Id. at 421 (¶ 19). With these legal principles in mind, we examine the facts of this case. There are only three documents that are relevant. There are only two documents where Giordano and Evans actually entered a contract.

¶ 24. The 1996 and 2005 agreements were signed by Giordano and Evans. They both considered only the purchase and sale of EGI stock. The 2004 agreement was not signed, and it considered Evans’s and Giordano’s stock interests in EGI and four other corporations they had formed since 1996 (e.g., the sister companies).

¶ 25. Howell claims that Evans knew or should have known, simply by reading the 2005 agreement, that the 2005 agreement only provided for the purchase of Giordano’s EGI stock. Evans admitted that he read the 1996 and the 2005 agreements. “In Mississippi, a person is charged with knowing the contents of any document that he executes.” Russell v. Performance Toyota, Inc., 826 So.2d 719, 726 (¶ 28) (Miss.2002) (citation omitted).

¶ 26. The 2005 agreement reads:

The parties to the buy/sell agreement of 1996 agree that, pending completion of a new agreement, the prior business valuation is hereby increased to three million dollars ($3,000,000) with life insurance policies currently in place in that amount.

“The parties” were Giordano and Evans. The “buy/sell agreement of 1996” was what we have termed the 1996 agreement. The “prior business valuation” could only mean the $1,500,000 in the 1996 agreement. Evans admitted in his deposition that the business valuation under the 1996 agreement was the only business valuation that existed.

¶ 27. It is not in dispute that the 1996 agreement only required the purchase and sale of EGI stock. Even though Giordano and Evans owned stock in two additional companies, the purchase and sale of the stock of those other companies was not part of the 1996 agreement.

¶ 28. It was not unrealistic that Evans, or “an intelligent layman familiar only with the basics of English language,” understood that the one-sentence 2005 agreement covered only EGI stock because it was specifically tied to the 1996 agreement, which only covered EGI stock and did not mention any of the sister companies. Warren v. Derivaux, 996 So.2d 729, 735 (¶ 12) (Miss.2008). Evans cites Willis v. Maverick, 760 S.W.2d 642, 645 (Tex.1988), for the proposition that a “corollary to [an attorney’s] expertise is the inability of the layman to detect its misapplication; the client may not recognize the negligence of the professional when he sees it.” This principle does not assist Evans. There were only two contracts, and the contract in issue here was only one sentence and thirty-eight words long. There is nothing about the 2005 agreement that would have required Evans to retain a second attorney to review the work of Howell.

¶ 29. Other cases also provide legal principles that we must consider. In Stephens v. Equitable Life Assurance Society of the United States, 850 So.2d 78, 83 (¶ 16) (Miss.2003), the supreme court held that the statute of limitations began to run when the plaintiffs signed insurance contracts. In both Channel and Stephens, “the plaintiffs were on notice of their claims because proof of the alleged misrepresentation was apparent from the face of the contract.” Archer v. Nissan Motor Acceptance Corp., 633 F.Supp.2d 259, 268 (S.D.Miss.2007). In Archer, because the terms were apparent on the face of the documents and, with due diligence, each plaintiff could have easily determined that he or she had not been offered what had been bargained for, the discovery rule did not toll the statute of limitations there. Id. at 269.

¶ 30. The trial court determined that Evans knew or should have known of Howell’s alleged legal malpractice on March 10, 2005, when he signed the 2005 agreement. Thus, the three-year limitations period had expired before Evans’s complaint was filed on May 13, 2009. The circuit court correctly found that the action was time-barred and correctly granted Howell’s motion for summary judgment. Therefore, the summary judgment is affirmed.

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

BARNES, ISHEE AND CARLTON, JJ., CONCUR. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., ROBERTS AND MAXWELL, JJ. FAIR AND JAMES, JJ., NOT PARTICIPATING.

IRVING, P.J.,

dissenting:

¶ 32. The majority, finding that the trial court was correct that the statute of limitations had run on Evans’s legal-negligence claim, affirms the trial court’s grant of summary judgment to Howell. With due respect, I believe that the majority errs, as, based on the evidence presented for and against summary judgment, there is a genuine issue of fact as to when Evans knew or should have known of Howell’s negligence. Therefore, I dissent. I would reverse and remand this case for further proceedings. Although the majority has set forth most of the essential facts, I find it helpful to an easy read of this dissent to recite them in a slightly different order.

¶ 33. Evans and Giordano were the sole stockholders of EGI, a Mississippi corporation. Each owned a fifty percent interest of stock in EGI. Howell performed a variety of legal services for Evans and Giordano regarding EGI, which included setting up the corporation, drafting corporate documents, and advising Evans and Giordano on various corporate and other legal issues.

¶ 34. On August 16, 1996, Howell drafted a “Purchase and Sale Agreement” (the 1996 agreement) for Evans and Giordano, which both Evans and Giordano signed. The purpose of this agreement was to allow the surviving stockholder to purchase the deceased stockholder’s interest in EGI and to provide for the purchase of life insurance to fund the purchase of the deceased stockholder’s interest. Although Evans and Giordano owned two additional companies in 1996, SRS and IPS, the 1996 agreement only applied to EGI. Each share of EGI was worth $1,500. The 1996 agreement valued all EGI stock at $1,500,000.

¶ 35. Between 1996 and 2004, Evans and Giordano formed two additional corporations, INS and EGF. INS, EGF, SRS, and IPS operated as EGI’s sister companies. By 2004, the sister companies were gaining success and bringing in significant income and profits. As a result, in September 2004, Giordano requested that Howell draft a new agreement (the 2004 agreement) which would allow the surviving stockholder to purchase the deceased stockholder’s interest in all five companies for $3,000,000. The 2004 agreement stipulated that the surviving stockholder would purchase the deceased stockholder’s interest in all five companies using the life insurance proceeds.

¶ 36. Evans and Giordano never executed the 2004 agreement due to ongoing negotiations unrelated to the valuation of the corporations set forth in the 2004 agreement. According to Evans, the negotiations involved Giordano’s prospective purchase of Evans’s interest in all of their companies. Evans and Giordano asked Howell to draft a third agreement in March 2005 (the 2005 agreement) because they would not execute the 2004 agreement until they resolved the prospective buyout. The 2005 agreement reads: “The parties to the buy/sell agreement of 1996 agree that, pending completion of a new agreement, the prior business valuation is hereby increased to three million dollars, with life insurance policies currently in place in that amount.” Evans and Giorda-no executed the 2005 agreement.

¶ 37. Giordano died on May 25, 2006. Evans received the $3,000,000 life insurance death benefits. Giordano’s estate filed suit against Evans in the Madison County Circuit Court, taking the position that the $3,000,000 from Giordano’s life insurance policy was for the purchase of Giordano’s EGI stock only, not Giordano’s interest in the sister companies. Evans, on the other hand, contended that the insurance proceeds covered not only Gior-dano’s interest in EGI, but also Giordano’s interest in the other four corporations identified in the 2004 agreement. Nevertheless, Evans settled with the estate, paying more than the $3,000,000 that he received in life insurance proceeds. On May 13, 2009, Evans filed his complaint for legal malpractice, alleging that Howell negligently failed to prepare the 2005 agreement to cover all corporate entities formed by Evans and Giordano.

¶ 38. The linchpin of the majority’s decision to affirm is its view that Evans, as well as any layman of average intelligence, would understand that the 2005 agreement refers to EGI and that Evans should have understood that the agreement references the valuation of EGI only, changing it from $1,500,00 to $3,000,000. As a consequence, the majority finds that the statute of limitations began to run on March 10, 2005, the day Evans executed the 2005 agreement. I will attempt to explain later in this dissent why I disagree with the majority's position. But I should note at this point that the commencement of the running of a statute of limitations imposes upon an injured party the obligation to commence suit for the redress of the injury suffered or risk being forever barred from doing so. The majority does not explain any injury that Evans suffered in March 2005 immediately upon his signing the agreement that would have allowed him to sue Howell for damages.

¶ 39. Next, I should point out that what Evans knew or should have known about the 2005 agreement cannot be viewed in a vacuum by a simple reading of the words in the agreement. Rather, knowledge imputed to him must be considered in light of the history between him and Giordano in valuating their businesses and providing capital for the survivor to utilize in the purchase of the other’s interest in case of death. Their first venture in this direction involved one corporation — EGI—and then in 2004, all five corporations. When considered against the backdrop of this historical perspective, I believe the 2005 agreement, despite its brevity, is clearly ambiguous.

¶ 40. What must not be lost in the analysis is that, prior to the drafting of the 2005 agreement, Howell had drafted not only a 1996 agreement, admittedly involving only EGI, which was valued at $1,500,000, with each partner owning a one-half interest, but he also had drafted a 2004 agreement involving all five corporations, valued in the aggregate at $6,000,000, with each partner owning a one-half interest. Evans and Giordano’s objective in making the initial purchase of $1,500,000 in insurance in 1996 was to provide capital for the surviving partner to purchase the deceased partner’s interest in EGI, the only profitable corporation at that time. Later, after two other corporations had been formed, making a total of five with the three that were in existence when the 1996 agreement was executed, Evans and Giordano increased their life insurance policies to $3,000,000 each and provided in the 2004 agreement that the surviving partner could purchase the deceased partner’s interest in all five corporations for $3,000,000. It is clear to me that the objective that Evans and Giordano were attempting to accomplish in both the 1996 and 2004 agreements was to establish a fair value of the deceased partner’s interest in their jointly owned corporations and to provide a funding mechanism that the surviving partner could use to purchase the deceased partner’s interest. In 1996, Evans and Giordano had one profitable corporation, EGI. By 2004, they had five. Therefore, in furtherance of their objective that began in 1996, they purchased additional insurance, valued all five corporations at $6,000,000, and provided that the surviving partner could purchase the deceased partner’s interest in all five for $3,000,000.

¶ 41. It is of no moment that the 2004 agreement was not signed, as there is no disagreement that the valuation of all five corporations provided for in the 2004 agreement was what the parties intended. Its value to the resolution of the issue before us lies in the fact that Evans and Giordano had agreed upon a value of all five corporations prior to the execution of the 2005 agreement. Further, there is no dispute that the only reason Evans and Giordano did not sign the 2004 agreement is that Giordano was attempting a buyout of Evans’s interest in all five corporations. It is also not disputed that the buyout negotiations were not stalled over the aggregate value of the corporations. Additionally, there is no evidence or suggestion that Giordano was negotiating the purchase of EGI only. Therefore, when the parties asked Howell to draft the temporary agreement in 2005, it is entirely reasonable that their intention was to make sure that the surviving partner would be able to acquire the deceased partner’s interest in all five corporations for $3,000,000 if either of the partners died before the buyout of Evans’s interest was completed. It is also reasonable for Evans to believe that execution of the 2005 agreement had accomplished that objective.

¶ 42. Mississippi Code Annotated section 15-1-49 (Rev.2003) requires that a legal malpractice action be brought within three years after the cause of action has accrued. The statute of limitations begins to run on the date that the client learns or, through the exercise of reasonable diligence, should learn of his lawyer’s negligence. Smith v. Sneed, 638 So.2d 1252, 1256 (Miss.1994). The Mississippi Supreme Court has held that the client learns of the negligence “as soon as an injury is sustained as a result of a defendant’s alleged culpable conduct.” Id. at 1254-55. Therefore, it follows that if no injury has occurred, the client cannot be charged with knowledge of the lawyer’s negligence.

¶ 43. I agree with Evans that a genuine issue of material fact exists as to whether Evans knew or should have known of Howell’s negligence prior to Giordano’s estate raising the issue with the agreement. Pri- or to that time, Evans had not suffered any injury, nor had he been placed on notice of any potential negligence on the part of Howell. Evans was first placed on notice when Giordano’s estate balked at accepting $3,000,000 for Giordano’s interest in all five corporations. It is not debatable that the injury occurred in March 2007, when Evans was forced to pay more than $3,000,000 to acquire all of Giordano’s interest in all five of the corporations.

¶ 44. Our supreme court has held that when “it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act[,]” the discovery rule applies, tolling the statute of limitations for legal malpractice. Channel, 954 So.2d at 421 (¶ 19) (citations omitted). Although Howell may have committed legal malpractice in March 2005 when he drafted the 2005 agreement, the statute of limitations did not begin to run until Evans had knowledge or, through the exercise of reasonable diligence, should have known of Howell’s negligence. As a layman, Evans could not be charged in March 2005 with knowing, without hiring another attorney to review Howell’s work product, that the 2005 agreement that Howell had drafted was inadequate to accomplish Evans and Gior-dano’s intended objective. In Channel, our supreme court, while discussing its holding in Sneed, explained why reasonable diligence does not require such a course of action:

[I]f the discovery rule were not followed, the client could protect himself fully only by ascertaining malpractice at the moment of its incidence. To do so, he would have to hire a second attorney to observe the work of the first. This costly and impractical solution would but serve to undermine the confidential relationship between attorney and client.

Channel, 954 So.2d at 422 (¶ 21).

¶45. “An ambiguity is defined as a susceptibility to two reasonable interpretations.” Dalton v. Cellular S., Inc., 20 So.3d 1227, 1232 (¶ 10) (Miss.2009) (citing Amer. Guar. & Liab. Ins. Co. v. 1906 Co., 129 F.3d 802, 811-12 (5th Cir.1997)). As stated, the majority agrees with the trial judge that the 2005 agreement is clear and unambiguous in that the alleged misrepresentation is apparent on the face of the 2005 agreement. In my judgment, one could reach this conclusion only by reading the 2005 agreement in a vacuum. The “prior business valuation” language in the 2005 agreement does not specifically refer to either the 1996 valuation of EGI or the 2004 valuation, which included the total valuation of all of the corporations. The reference in the 2005 agreement to the 1996 agreement is a reference to the parties, not to the 1996 valuation. Even though the 2004 agreement was not executed, it is not unreasonable for a layperson to interpret the “prior business valuation” language in the 2005 agreement to be a reference to the $3,000,000 valuation contained in the 2004 agreement, which covered all of the businesses that Evans and Giordano owned in 2004. This is especially true since the 2004 agreement stipulated that the surviving stockholder would purchase the deceased stockholder’s interest in all five companies using the life-insurance proceeds, which at that time were $3,000,000. Therefore, the agreement could be read as Giordano’s estate read it — to cover only the purchase of Giorda-no’s interest in EGI — or it could be read to cover the purchase of Giordano’s interest in all five companies, as stipulated in the 2004 agreement.

¶ 46. For the reasons presented, I dissent.

LEE, C.J., ROBERTS AND MAXWELL, JJ., JOIN THIS OPINION.

      . Evans’s brief refers to this as the "2005 temporary agreement.” (Emphasis added).


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Gary RICHARD, Appellant v. Emilio GARMA-FERNANDEZ, Appellee.
    No. 2012-CA-00007-COA.
    Court of Appeals of Mississippi.
    March 19, 2013.
    Rehearing Denied June 25, 2013.
    Certiorari Denied Sept. 19, 2013.

      J. Randolph Lipscomb, Columbus, attorney for appellant.
    Allen Austin Vollor, Vicksburg, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and ROBERTS, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. This case considers whether a Mississippi court obtained personal jurisdiction over an out-of-state defendant, who was not served with process, because an attorney filed pleadings on behalf of the defendant. The Chancery Court of Oktib-beha County answered this question in the affirmative. We find no error and affirm.

FACTS

¶ 2. Emilio Garma-Fernandez filed a lawsuit on June 16, 2009. The complaint named the following defendants: TAG Investments LLC, TAG State Theatre LLC, Doe’s of Starkville LLC, Starkville State Theatre LLC, Starkville Commercial Enterprises LLC, Timothy Garrett, John Deahl, James F. Kennedy Jr., John Arnold Sr., and Gary Richards. There is an issue, which will be discussed later, as to the correct spelling of Richard’s name (correctly referred to hereinafter as “Richard”). Richard was identified as an adult resident citizen of Richmond, Virginia.

¶ 3. Garma-Fernandez’s complaint arose out of the commercial dealings of the parties. Several of the named defendants owned a bar and restaurant in Starkville, Mississippi. Garma-Fernandez was employed to manage the bar and restaurant. The complaint asserts that Richard, along with other defendants, had offered to buy the bar and restaurant. Garma-Fernandez alleges that he had a contractual relationship with each of the defendants. The complaint asserted claims for an accounting, imposition of a resulting trust and equitable ownership, injunction, breach of contract, tortuous interference with contract, anticipatory breach of contract, recovery of unlawful distributions, compensatory damages, punitive damages, and attorney’s fees.

¶ 4. The summons and complaint were served on several defendants. Richard was not personally served with a summons and complaint in accordance with Mississippi Rule of Civil Procedure 4. Some type of process was posted on Richard’s door in Virginia on June 30, 2009.

¶ 5. On July 7, 2009, Billie Jo White, a licensed Mississippi attorney, informed Garma-Fernandez’s counsel that she represented six defendants in the case. One of the defendants was Richard. Thereafter, Garma-Fernandez’s counsel sent all letters, pleadings, and notices to White and made no further attempt to serve Richard.

¶ 6. In July 2009, Garma-Fernandez had some conversations with Richard. Garma-Fernandez’s attorney told him to stop because Richard was represented by counsel. Garma-Fernandez said it was apparent from those conversations that Richard was aware of the lawsuit.

¶ 7. On September 24, 2009, White filed a responsive pleading entitled “Motion, Answers, Defenses and Counterclaims of Defendants Tag State Theater, LLC, Doe’s of Starkville, LLC, Starkville State Theater, LLC, Starkville Commercial Enterprises, LLC, James F. Kennedy, Jr., and Gary Richards.” In this nineteen-page responsive pleading, White referred to Richard throughout the pleading along with the other defendants that she represented. White did not claim to represent defendants TAG Investments LLC, Timothy Garrett, John Deahl, or John Arnold Sr.

¶ 8. Garma-Fernandez served discovery on Richard through White. White failed to respond to discovery requests. The court ordered that any evidence in the documents to be produced or interrogatories that had not been given to Garma-Fernandez was excluded and inadmissible at trial. The court also ruled that Richard’s counterclaim was dismissed with prejudice; the matters in the request for admissions against Richard were deemed admitted; and attorney’s fees were awarded to Garma-Fernandez.

¶ 9. On September 28, 2010, Garma-Fernandez filed a motion for summary judgment. Garma-Fernandez also filed a motion for contempt and imposition of sanctions because White and Richard had not paid the previously ordered attorney’s fees.

¶ 10. On October 15, 2010, White filed a “Joint Motion for Extension of Time to Respond to Motion for Summary Judgment and Motion for Continuance.” This motion was filed only on behalf of Richard. White stated she had recently moved and started a new job. Because of this transition, she had stored her files in a storage building. She stated that she could not locate Richard’s file. She also stated that she had not been able to notify Richard of the motion for summary judgment. She further stated she did not get notice of the hearing until September 29, 2010, just sixteen days prior to the hearing. Thus, she said that, because Richard is a Virginia resident, sixteen days was not enough time to make arrangements for him to appear at the hearing.

¶ 11. On November 9, 2010, the chancellor granted Garma-Fernandez summary judgment and entered a final judgment of $136,000, along with the earlier award of attorney’s fees of $1,267.50.

¶ 12. In May 2011, Garma-Fernandez began collection proceedings in Richmond, Virginia, against Richard. Richard retained counsel. In June 2011, Richard’s counsel filed a pleading in the Oktibbeha County Chancery Court entitled “Limited Appearance to Contest Jurisdiction” (“limited-appearance motion”) under Mississippi Rule of Civil Procedure 60. In this pleading, Richard claimed that he did not know White and had not been represented by her. He attached an affidavit that stated: (a) the facts contained in the limited-appearance motion were true; (b) he first learned of the litigation in April 2011; (c) his only contact with the State of Mississippi was as a member of Starkville Commercial Enterprises LLC; and (d) he never had a contract of employment with Garma-Fernandez or anyone else in Mississippi. Richard asked that the judgment against him be declared void.

¶ 13. A hearing on the limited-appearance motion was held on July 20, 2011. The chancellor accepted Richard’s affidavit as evidence, and Garma-Fernandez offered recordings of telephone conversations. Richard’s counsel asked that the hearing be continued.

¶ 14. Another hearing was held on September 28, 2011. Richard’s attorney announced that the only evidence he would offer would be Richard’s affidavit. Gar-ma-Fernandez testified about his conversations with Richard and White’s efforts on behalf of Richard. Two tape recordings were admitted into evidence.

¶ 15. On October 20, 2011, Richard filed an affidavit signed by White. White stated that she “listed Gary Richard as one of the defendants whom she represented but such listing was in error,” and “she does not now and has never represented Gary Richard or spoken to him or had any contact with him whatsoever.”

¶ 16. On November 18, 2011, the chancellor entered an “Order on Limited Appearance to Contest Jurisdiction.” The chancellor determined that White had filed an answer on behalf of Richard and other defendants; the answer did not raise a defense of lack of personal jurisdiction or insufficiency of service of process; and the answer waived these defenses through the participation in the legal proceeding up to trial and entry of judgment.

¶ 17. The chancellor noted flaws in Richard’s affidavit that undermined Richard’s credibility. For example, Richard claimed he did not know about the litigation until April 2011, yet the telephone conversations established that he was aware of the litigation. The chancellor determined that Richard was represented by White, and White accepted process on his behalf and entered an appearance for Richard. The chancellor rejected Richard’s argument that he was not represented by White, and found that White’s pleadings were contrary to her claim that she did not represent Richard. The chancellor, therefore, denied Richard’s limited-appearance motion. It is from this judgment that Richard now appeals.

STANDARD OF REVIEW

¶ 18. The Mississippi Supreme Court has held that “motions for relief under Rule 60(b) are generally addressed to the sound discretion of the trial court[,] and appellate review is limited to whether that discretion has been abused.” Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984) (citation omitted). This Court applies a de novo standard of review to jurisdictional questions. Sorrells v. R & R Custom Coach Works, Inc., 686 So.2d 668, 670 (Miss.1994).

ANALYSIS

1. The chancery court had personal jurisdiction over Richard; thus, the judgment is valid.

¶ 19. Richard filed a motion for relief from judgment under Mississippi Rule of Civil Procedure 60. Rule 60(b)(4) provides: “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reason[s]: ... (4) the judgment is void.” A judgment is void if the rendering court lacked personal or subject-matter jurisdiction or acted in a manner inconsistent with due process. Over-bey v. Murray, 569 So.2d 303, 306 (Miss. 1990) (citations omitted).

¶ 20. The question presented is whether Garma-Fernandez’s judgment was void because the chancery court lacked personal jurisdiction over Richard. For a judgment to be valid, the court must have personal jurisdiction over the parties to the action. James v. McMullen, 733 So.2d 358, 359 (¶ 3) (Miss.Ct.App.1999).

¶ 21. A court obtains personal jurisdiction over a defendant in one of two ways. Personal jurisdiction is established when a defendant is properly served the summons and complaint under Rule 4 of the Mississippi Rules of Civil Procedure. Personal jurisdiction is also established when a defendant voluntarily enters an appearance. Isom v. Jernigan, 840 So.2d 104, 107 (¶ 9) (Miss.2003) (citations omitted). “One waives process and service ... upon making a general appearance.” Id.

¶ 22. Richard was not served with Rule 4 process. However, Richard entered an appearance in this case when White filed a responsive pleading on his behalf. When White filed the responsive pleading on September 24, 2009, Richard voluntarily entered an appearance in the Chancery Court of Oktibbeha County and was subjected to the jurisdiction of the court. The fact that Richard was not served with process under Rule 4 no longer mattered.

¶ 23. Despite this voluntary appearance through attorney White, Richard could have contested both personal jurisdiction and insufficiency of service of process in the responsive pleading. See M.R.C.P. 12(b)(2), (5). He did not. The result was that the responsive pleading, without the Rule 12(b) defense asserted, waived his right to contest personal jurisdiction. See M.R.C.P. 12(h)(1). “[T]he right to contest the court’s jurisdiction based on some perceived problem with service may yet be lost after making an appearance in the case if the issues related to jurisdiction are not raised at the first opportunity.” Schustz v. Buccaneer, Inc., 850 So.2d 209, 213 (¶ 15) (Miss.Ct.App.2003). “Thus, a defendant appearing and filing an answer or otherwise proceeding to defend the case on the merits in some way — such as participating in hearings or discovery — may not subsequently attempt to assert jurisdictional questions based on claims of defects in service of process.” Id.

¶24. Our inquiry does not end here. Richard argues that a Mississippi attorney cannot give a Mississippi court personal jurisdiction over a nonresident unless that attorney has been hired by the nonresident. Richard’s brief cites, but does not discuss, Rains v. Gardner, 719 So.2d 768 (Miss.Ct.App.1998).

¶ 25. In Rains, this Court acknowledged that an individual can waive process, and an authorized attorney may enter an appearance on his behalf. Id. at 770 (¶ 7). When this issue is raised, the party that claims an appearance has been made bears the burden of proof. Id.

¶26. One defendant, Ginger Gardner, was represented by an attorney. Id. at 769 (¶ 5). Gardner’s attorney appeared on her behalf but argued that the other defendant, Tina Clark, whom the attorney did not represent, should also be dismissed from the action. Id. When the court asked the attorney whether he represented both defendants, the attorney definitively stated he only represented one (Gardner). Id. Nevertheless, the attorney renewed his argument that both defendants (Gardner and Clark) should be dismissed. Id. The plaintiff, Hazel Rains, argued that Gardner’s attorney’s actions constituted a voluntary appearance on behalf of Clark. Id. The trial court rejected that argument, and Rains appealed. Id. at (¶¶ 5-6).

¶ 27. This Court found that because there was not “even a hint of evidence” that the attorney actually represented Clark, Rains’s argument had no merit. Id. at 770 (¶ 7). This Court also noted that even if the attorney had made extensive arguments on the unrepresented defendant’s behalf, the attorney could not have entered a voluntary appearance on behalf of the individual if he acted without authority. Id.

¶ 28., This case is not factually similar to Rains. Here, White filed pleadings on behalf of Richard, and other defendants. The question the chancellor had to decide was whether Richard consented to or authorized White’s representation.

¶ 29. The chancellor determined that there was sufficient evidence to conclude that Richard consented to and authorized White’s representation. White filed the responsive pleading that specifically named Richard as a defendant whom she represented. Garma-Fernandez’s attorney served White with discovery for Richard. There was correspondence from Garma-Fernandez’s attorney to White that discussed her representation of Richard. The court entered an order compelling Richard to respond to discovery, with White acting as his attorney.

¶ 30. Also, the October 15, 2010 “Joint Motion for Extension of Time to Respond to Motion for Summary Judgment and Motion for Continuance” was filed only on Richard’s behalf. White represented herself as “his counsel of record.” White stated to the court that she had not been able to notify Richard of the motion for summary judgment, and that, because Richard was a Virginia resident, sixteen days was not enough time to make arrangements for him to appear at the hearing. Also, in this motion, White refers to Richard as “her client.”

¶ 31. We recognize that Richard’s affidavit attached to the limited-appearance motion claims that he never authorized White to act on his behalf. However, an assertion in Richard’s affidavit was contradicted by the evidence. White’s affidavit states that she was not and never had been Richard’s attorney. White’s affidavit, however, was contradicted by her previous assertions to the court. We agree with the chancellor that the credibility of both affidavits was undermined.

¶ 32. We find the evidence in the record demonstrates that White did, in fact, enter an appearance for Richard, and that she was his authorized representative in this action. Therefore, we find no merit to this issue and find no error in the chancellor’s judgment that found the court had personal jurisdiction over Richard.

2. The chancery court’s personal jurisdiction over Richard was not based on Richard’s awareness of the lawsuit.

¶ 33. Next, Richard claims that knowledge of litigation is not sufficient to confer jurisdiction. This Court has stated “even actual knowledge of a suit does not excuse proper service of process.” Blakeney v. Warren Cnty., 973 So.2d 1037, 1040 (¶ 13) (Miss.Ct.App.2008) (quoting Mansour v. Charmax Indus., 680 So.2d 852, 855 (Miss.1996)).

¶ 34. As discussed above, the chancery court’s personal jurisdiction over Richard was not based on Richard’s awareness of the lawsuit. The chancellor correctly determined that the court gained personal jurisdiction over Richard through his general appearance. Therefore, we find no merit to this issue.

¶ 35. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., NOT PARTICIPATING.

      . Richard argues that White misspelled his name in this pleading, and this is "telling” that White was not his attorney. White also misspelled the name of Defendant James Kennedy, whom she also represented. She spelled his name "Kenndy.”


author: IRVING, P.J.,

text:
    Lindsey BARROW a/k/a Lindsey B. Barrow, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KM-00068-COA.
    Court of Appeals of Mississippi.
    April 9, 2013.
    Rehearing Denied Sept. 17, 2013.

      Kevin Dale Camp, Jackson, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
   IRVING, P.J.,

for the Court:

¶ 1. In March 2011, Lindsey Barrow pleaded no contest in Flowood Municipal Court to driving under the influence (DUI) and following too closely (tailgating). The municipal court found Barrow guilty of both offenses. Barrow appealed to the County Court of Rankin County, which found him guilty after a trial de novo. Barrow filed a motion for a judgment notwithstanding the verdict or a new trial, which the county court denied. He appealed to the Rankin County Circuit Court, which, sitting as an appellate court, affirmed his conviction. Barrow now appeals and argues that there is insufficient evidence to convict him of DUI and following too closely.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Barrow was visiting Jackson, Mississippi, with his girlfriend for a wedding one weekend in November 2010. Barrow and his girlfriend were staying at his girlfriend’s grandmother’s house. Barrow testified that before the wedding, he and everyone else at the house had about two glasses of wine while watching a football game. Barrow claims he consumed two glasses of wine and one and one-half beers at the wedding reception, which Barrow testified ended around 9:45 p.m. After-wards, Barrow’s girlfriend’s mother dropped them off in downtown Jackson, where the couple and their friends visited a few bars. After visiting the bars, the couple took a cab back to the house around midnight. Barrow claims that the reason they took a cab is because they did not have a ride, not because he felt too intoxicated to drive.

¶ 4. The couple arrived back at the house and, around 1:15 a.m., decided to venture out for food. Officer Jason Johns testified that he observed Barrow on Lake-land Drive driving about fifty-five to sixty miles per hour, about a car length or less behind a sport-utility vehicle (STTV). Officer Johns followed Barrow to a stop light, where Barrow’s vehicle was halfway over the stop bar in the turning lane. He also noted that Barrow’s tag light was not working. Officer Johns waited for Barrow to make a turn and “blue-lighted” him. He testified that he approached the car and that Barrow reeked of alcohol. He had no doubt that Barrow was under the influence. Officer Johns asked Barrow if he would submit to a portable breathalyzer test (PBT) and a field-sobriety test. Barrow answered in the affirmative and complied.

¶ 5. Officer Johns testified that the PBT indicated that Barrow was intoxicated. On the videotape of the stop, Officer Johns and another officer can be heard saying that the PBT result was .15 percent and climbing. Next, Officer Johns asked Barrow to recite letters G through W. Officer Johns noted that with this test, Barrow began at letter H. Officer Johns then asked Barrow to count backwards from 61 to 49. He noted that Barrow did not stop counting until 48. Next, Barrow performed the one-leg-stand test; however, according to Officer Johns, his toe was not extended and his hands were not by his side. Officer Johns further testified that Barrow seemed to be using his hands for balance. On the walk-and-turn test, Barrow lost his balance on the third step and made an improper turn on the ninth step. At this time, Barrow was placed under arrest. Once at the police station, Barrow refused the Intoxilyzer test. Officer Johns testified that Barrow admitted in the In-toxilyzer room that he had consumed five glasses of wine and several beers that night.

¶ 6. Additional facts, as necessary, will be related in our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. Barrow contends that there is insufficient evidence to support his convictions. The Mississippi Supreme Court has held that when considering the sufficiency of the evidence sustaining a conviction, it must be determined whether every element of the offense existed beyond a reasonable doubt. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). If the facts and inferences considered in a suffi-eiency-of-the-evidence challenge “point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy is to reverse and render. Gilpatrick v. State, 991 So.2d 130, 134 (¶ 20) (Miss.2008) (quoting Bush, 895 So.2d at 843 (¶ 16)). The evidence is viewed in the light most favorable to the prosecution. Bush, 895 So.2d at 843 (¶ 16). Mississippi Code Annotated section 63-11-30(l)(a),(c) (Supp.2012) makes it “unlawful for any person to drive or otherwise operate a vehicle ... who ... is under the influence of intoxicating liquor ... [or] has an alcohol concentration of eight one-hundredths percent (.08%) or more.... ”

¶ 8. Not only did Barrow admit to having several drinks that night, the PBT indicated that he was probably intoxicated. Officer Johns testified that after he asked Barrow to step out of his vehicle, Barrow was swaying back and forth at times and displayed signs of intoxication while performing the field-sobriety tests. Even though the G-through-W and 61-to^9 tests that Officer Johns asked Barrow to perform are not recognized by the National Highway Traffic Safety Administration, the signs from the other tests, the PBT results, and the videotape all corroborate most of Officer Johns’s testimony and support his belief that Barrow was intoxicated. This is Barrow’s second DUI, and the fact that he refused the Intoxilyzer test at the police station was taken into consideration by the county court judge in his decision. Viewing this evidence in the light most favorable to the prosecution, there is nothing that points in favor of Barrow with the sufficiency required by Bush to cast doubt on his driving under the influence.

¶ 9. Mississippi Code Annotated section 63-3-619(1) (Rev.2004) states, in pertinent part, that “[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles....” There is no evidence on the videotape that Barrow was following the SUV in front of him too closely because the SUV did not get into the turning lane as Barrow did once the tape began to record. The county court’s reasoning for convicting Barrow on the offense is that Officer Johns made it clear from the start that Barrow’s following the SUV so closely was what drew his attention to Barrow. Further, Barrow offered no evidence to contradict Officer Johns’s testimony. Accordingly, the court did not err in its findings, and the evidence is sufficient to convict Barrow on both the DUI and tailgating offenses.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY AFFIRMING THE COUNTY COURT’S CONVICTION OF DRIVING UNDER THE INFLUENCE AND FOLLOWING TOO CLOSELY, AND SENTENCE OF FORTY-EIGHT HOURS IN THE RANKIN COUNTY JAIL WITH THE ENTIRE SENTENCE SUSPENDED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, FAIR AND JÁMES, JJ., CONCUR. ROBERTS AND MAXWELL, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., NOT PARTICIPATING.


text:
    Larry HYMES a/k/a Larry Edward Hymes, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CA-01688-COA.
    Court of Appeals of Mississippi.
    May 21, 2013.
    Rehearing Denied Sept. 17, 2013.

      John H. Cox III, Greenville, attorney for appellant.
    Office of the Attorney General by Roger Googe Jr., Malissa Winfield, for attorneys for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On July 16, 2010, Larry Hymes filed suit in the Washington County Circuit Court against the State of Mississippi (the State), alleging that he was wrongfully convicted and imprisoned and that he is entitled to compensation as a result. On October 31, 2011, after a bench trial, the circuit court determined that Hymes had not proven that he was wrongfully convicted and imprisoned. Feeling aggrieved, Hymes appeals and presents several issues for review, which we have recast for clarity: (1) whether Mississippi Code Annotated section ll-44r-7(l) (Rev.2012) is constitutional, (2) whether Hymes was entitled to a jury trial in his wrongful-conviction case, (3) whether the circuit court erred during the wrongful-conviction trial in admitting Clarence Pearson’s previous testimony and in finding that Hymes possessed marijuana and a firearm, and (4) whether Hymes is entitled to compensation for wrongful conviction on an alternative basis.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On August 27, 1990, a grand jury indicted Hymes for possession of marijuana with intent to sell or distribute and possession of a firearm by a convicted felon. During Hymes’s criminal trial, Pearson, Hymes’s codefendant, testified that he and Hymes had traveled to Houston, Texas, to buy marijuana. They intended to bring the marijuana that they purchased in Texas back to Mississippi to sell. Hymes had postponed the trip for approximately two days in order to get the money for the drug purchase together. Pearson and Hymes went to Texas in Pearson’s vehicle. Once they purchased the marijuana, Pearson and Hymes purchased building materials to disguise the marijuana. According to Pearson, he and Hymes cut a hole in several pieces of sheetrock, rolled the packages of marijuana that they had purchased, and placed them in the hole. Hymes and Pearson alternated driving back to Mississippi. Once they crossed the Mississippi River Bridge, law enforcement officials stopped Pearson’s vehicle. When law enforcement officials searched the vehicle, they found the marijuana.

¶ 4. Pearson admitted at the scene that some of the marijuana belonged to him. He did not inform law enforcement that most of the marijuana belonged to Hymes until later. Hymes never acknowledged ownership of the marijuana. Law enforcement also found a .22-caliber handgun inside Hymes’s luggage. Hymes admitted that the handgun belonged to him but insisted that the gun was inoperable.

¶ 5. As a result of Pearson’s arrest, authorities revoked his parole related to a previous charge. Pearson testified against Hymes but stated that he did not receive any special treatment in exchange for his testimony. Prior to Hymes’s trial for compensation, the State noted that it had dropped the drug-related charges against Pearson, and he was released from prison approximately one week after he testified at Hymes’s criminal trial.

¶ 6. The jury convicted Hymes of possession of marijuana with the intent to sell or distribute and of the unlawful possession of a firearm by a convicted felon. The circuit court sentenced Hymes to thirty years on the marijuana charge and five years on the firearm charge, to be served consecutively. The Mississippi Supreme Court affirmed Hymes’s conviction and sentence in 1995. Subsequently, Hymes filed a petition for post-conviction relief alleging that he received ineffective assistance of counsel. After an evidentiary hearing, the circuit court set aside Hymes’s conviction and ordered a new trial.

¶ 7. The State decided not to pursue a new trial and requested that the case be passed to the inactive files. The circuit court granted the State’s request, and Hymes was released from prison on August 4, 2000.

¶ 8. Hymes filed a civil action in the circuit court, alleging that he had been wrongfully convicted and imprisoned and was entitled to compensation. At Hymes’s civil trial, the State introduced Pearson’s prior testimony. The parties stipulated that Pearson was unavailable to testify as defined by the Mississippi Rules of Civil Procedure, as Pearson had been diagnosed with severe dementia. Hymes submitted a motion in limine to prevent the use of Pearson’s prior testimony. The circuit court initially reserved its ruling on the motion in limine, but ultimately allowed the State to use Pearson’s prior testimony. After analyzing the evidence submitted in the civil action, the court determined that Hymes had failed to prove by a preponderance of the evidence that he was not guilty of possession of marijuana with intent to sell or distribute or the unlawful possession of a firearm by a convicted felon.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

I. Constitutionality of Section 11-Jk-7(1)

¶ 10. Hymes contends that section 11-44-7(1) is unconstitutional because the statute shifts the burden to the accused to prove his innocence and violates the doctrine of collateral estoppel. Hymes admits that he did not raise this issue at trial. “The general rule is that [appellate courts] will not address issues raised for the first time on appeal, particularly where constitutional questions are concerned.” 5K Farms Inc. v. Miss. Dep’t of Revenue, 94 So.3d 221, 224 (¶ 12) (Miss.2012). Thus, because Hymes failed to raise this issue in the circuit court, it is procedurally barred.

¶ 11. Procedural bar notwithstanding, Hymes’s claim is also without merit. Our supreme court has stated:

When addressing a statute’s constitutionality, [appellate courts] apply a de novo standard of review, bearing in mind (1) the strong presumption of constitutionality; (2) the challenging party’s burden to prove the statute is unconstitutional beyond a reasonable doubt; and (3) all doubts are resolved in favor of a statute’s validity.

Johnson v. Sysco Food Servs., 86 So.3d 242, 243-44 (¶ 3) (Miss.2012) (footnotes omitted).

¶ 12. Section 11-44-7(1) states that in order to obtain compensation for wrongful conviction and imprisonment, the claimant must prove by a preponderance of the evidence that

(a) He was convicted of one or more felonies and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence; and
(i) He has been pardoned for the felony or felonies for which he was sentenced and which are the grounds for the complaint and the pardon is based on the innocence of the claimant which must be affirmatively stated in the pardon; or
(ii) His judgment of conviction was reversed or vacated; and
1. The accusatory instrument was dismissed or nol prossed; or
2. If a new trial was ordered, he was found not guilty at the new trial; and
(b) He did not commit the felony or felonies for which he was sentenced and which are the grounds for the complaint, or the acts or omissions for which he was sentenced did not constitute a felony; and
(c) He did not commit or suborn perjury, or fabricate evidence to bring about his conviction.

According to Hymes, section 11-44-7(1) is unconstitutional for two reasons: (1) the statute shifts the burden to the defendant-turned-plaintiff to prove his innocence; and (2) the statute violates the doctrine of collateral estoppel.

¶ 13. Regarding the presumption of innocence, Hymes confuses the State’s burden in a criminal trial with its burden in his civil trial. In a criminal trial, the individual that the State has accused of wrongdoing is entitled to a presumption of innocence until the State proves his guilt beyond a reasonable doubt. Thus, Hymes, during his criminal trial, was entitled to the presumption of innocence “until the [State] prove[d] beyond a reasonable doubt each element of the offense charged.” Stewart v. The Miss. Bar, 84 So.3d 9, 13 (¶ 12) (Miss.2011) (quoting Clark v. Arizona, 548 U.S. 735, 766, 126 S.Ct. 2709, 165 L.Ed.2d 842 (2006)). However, in his trial for compensation, which is civil in nature, Hymes was no longer entitled to that presumption. During the civil trial, it was Hymes’s burden to prove his innocence by a preponderance of the evidence. Allowing Hymes to retain the presumption of innocence throughout his civil trial would absolve him from proving an essential element of his claim against the State — his innocence.

¶ 14. The doctrine of collateral estoppel “precludes parties from relitigat-ing issues that are actually litigated, determined by, and essential to the judgment in a former action, even though a different cause of action is the subject of the subsequent action.” Restaurant of Hattiesburg, LLC v. Hotel & Restaurant Supply, Inc., 84 So.3d 32, 45 (¶ 49) (Miss.Ct.App.2012) (quoting Richardson v. Audubon Ins. Co., 948 So.2d 445, 449-50 (¶ 14) (Miss.Ct.App.2006)). The former action here is Hymes’s criminal trial, in which a jury determined that he was guilty. However, as Hymes’s conviction was subsequently reversed, there were no previous final judgments on any issues that Hymes raised during his trial for compensation. As such, the doctrine of collateral estoppel is inapplicable.

¶ 15. Consequently, we find that Hymes has failed to demonstrate that the wrongful-conviction statute is unconstitutional. Accordingly, this issue is without merit.

II. Right to Jury Trial

¶ 16. Hymes argues that he was entitled to have his civil case tried in front of a jury. After reviewing the record, we note that Hymes failed to request a jury trial in circuit court. As such, this issue is procedurally barred. Glasper v. State, 914 So.2d 708, 721 (¶ 30) (Miss.2005). Procedural bar aside, this issue is also without merit. Article 3, Section 31 of the Mississippi Constitution states, “The right of trial by jury shall remain inviolate, but the legislature may, by enactment, provide that in all civil suits tried in the circuit and chancery court, nine or more jurors may agree on the verdict and return it as the verdict of the jury.”

¶ 17. However, our supreme court has stated that while Section 31 grants an individual the right to a trial by a jury, that right “applies only to those cases in which a jury trial was necessary at common law.” Wells v. Panola Cnty. Bd. of Educ., 645 So.2d 883, 898 (Miss.1994). At common law, sovereign immunity prevented citizens from suing the State. Id. Therefore, following the holding in Wells, Hymes was not entitled to a jury trial in his wrongful-conviction ease. Accordingly, this issue is without merit.

III. Wrongful-Conviction Trial

¶ 18. Hymes asserts that the circuit court erred in multiple areas during his trial for compensation. It is well settled that “[a] circuit court ... sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” Setzer v. State, 54 So.3d 226, 230 (¶ 15) (Miss.2011) (quoting Trinity Mission Health & Rehab of Holly Springs, LLC v. Lawrence, 19 So.3d 647, 649 (¶ 4) (Miss.2009)). Hymes contends that there is no substantial evidence to support the circuit court’s decisions to admit Pearson’s testimony from Hymes’s criminal trial, to find that he was in possession of marijuana, or to find that he possessed a firearm.

a. Pearson’s Testimony

¶ 19. Although Pearson testified at Hymes’s criminal trial, Pearson was not available to testify at Hymes’s trial for compensation. However, the State submitted into evidence Pearson’s prior testimony from Hymes’s criminal trial. Hymes argues that the circuit court erred in admitting Pearson’s prior testimony because Hymes had ineffective counsel during the criminal trial, which indicates that the testimony is unreliable; that Pearson’s testimony is contradictory and self-serving; that the copy of Pearson’s testimony was not authentic; and that Hymes’s civil attorney would have cross-examined Pearson more thoroughly than his criminal attorney.

¶ 20. Hymes’s primary issue with Pearson’s prior testimony is its reliability. Mississippi Rule of Evidence 804(a)(4) provides that a witness is unavailable if he “[i]s unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity[.]” Further, Mississippi Rule of Evidence 804(b)(1) allows the former testimony of an unavailable witness to be read into evidence if that witness has been previously cross-examined. This Court has recognized and applied the United States Supreme Court’s two-prong test to determine the admissibility of an unavailable witness’s testimony: “[F]irst, the prosecution must establish the declar-ant as unavailable, and second, once the first is established^] the statement must be accompanied by indicia of [reliability].” Fulks v. State, 944 So.2d 79, 84 (¶ 5) (Miss.Ct.App.2006) (internal quotations omitted).

¶ 21. Here, Pearson testified during Hymes’s criminal trial and was throughly cross-examined by Hymes’s trial attorney, who asked sufficient questions to challenge Pearson’s credibility and his motive for testifying against Hymes. Hymes’s trial attorney also established the inconsistencies in Pearson’s statements to law enforcement officers. When Hymes appealed his conviction alleging specific instances of ineffective assistance of counsel, he never alleged that his counsel had been deficient in questioning Pearson. Traditionally, in the absence of an objection to counsel’s performance, counsel is presumed competent. Goodin v. State, 102 So.3d 1102, 1117 (¶ 45) (Miss.2012). Therefore, without an objection to his criminal attorney’s cross-examination of Pearson, we cannot say that Hymes’s attorney was deficient in this respect.

¶ 22. Hymes’s additional challenges to Pearson’s testimony are without merit. While Hymes asserts that Pearson’s testimony was self-serving and contradictory, it is within the province of the jury to decide which witnesses are credible and to resolve the conflicts in the testimony that they hear. Jones v. State, 920 So.2d 465, 472-73 (¶ 22) (Miss.2006). Also, contrary to Hymes’s contention that the copy of Pearson’s previous testimony is not authentic, the record shows that each page of the transcript was certified by the director of the Mississippi Department of Archives and History. While Hymes argues that the trial transcript should have come from the circuit clerk’s office, he offers no support for the proposition that it is customary for clerks’ offices to retain 20-year-old trial transcripts. Lastly, Hymes’s contention — that his civil attorney would have conducted a more thorough cross-examination of Pearson during Hymes’s civil trial than his criminal attorney did at his criminal trial — fails, as Pearson had been diagnosed with severe dementia sometime before Hymes’s civil trial. Therefore, it is highly unlikely that Pearson would have remembered events from twenty years ago.

¶ 23. Accordingly, the circuit court did not err in admitting Pearson’s prior testimony. This issue is without merit.

b. Possession of Marijuana

¶ 24. The circuit court implicitly denied Hymes’s motion to suppress the marijuana recovered during the traffic stop. Hymes maintains that because the traffic stop was illegal, the circuit court erred in failing to suppress the marijuana. Hymes also argues that there is no substantial evidence to support the circuit court’s ruling that he possessed marijuana.

¶ 25. As a general rule, a police officer may initiate an investigatory traffic stop “as long as [the] officer has reasonable suspicion, grounded in specific and articulable facts, ... that the person stopped is, or is about to be[,] engaged in criminal activity.” Dies v. State, 926 So.2d 910, 918 (¶ 22) (Miss.2006) (quoting Floyd v. City of Crystal Springs, 749 So.2d 110, 114 (¶ 16) (Miss.1999)). Here, Trooper Donald McCain testified that after receiving information about drug trafficking, he and other officers went to the area where Hymes and Pearson were later arrested. When Pearson’s vehicle crossed the bridge, Trooper McCain followed the vehicle in an attempt to confirm that Pearson’s vehicle matched the suspected vehicle. During that time, Trooper McCain witnessed the vehicle cross the center line of the highway, drift back over to the shoulder, and then back towards the center line. Believing that the driver was either sleepy or intoxicated, Trooper McCain initiated the traffic stop.

¶ 26. Based on these facts, we find that the traffic stop was proper. Even though Hymes maintains that Trooper McCain detained the vehicle based solely on the information given to him earlier during the day, Trooper McCain clearly articulated that he stopped the vehicle to investigate whether the driver was impaired. After Trooper McCain detained the vehicle, Pearson informed him that he owned the vehicle and gave Trooper McCain consent to search the vehicle. Therefore, not only was the traffic stop proper, but the subsequent search of the vehicle was proper as well.

¶ 27. Regarding possession, it is well settled that “[p]ossession of a controlled substance may be actual or constructive!.]” Johnson v. State, 81 So.3d 1020, 1023 (¶ 7) (Miss.2011) (quoting Berry v. State, 652 So.2d 745, 748 (Miss.1995)). It is undisputed that at the time of the arrest, Hymes did not have actual possession of any marijuana. Thus, the State needed to demonstrate that Hymes had constructive possession of the marijuana found in Pearson’s vehicle. The Mississippi Supreme Court has stated that, in determining whether an individual had constructive possession of a controlled substance:

[TJhere must be sufficient facts to warrant a finding that [the] defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.... Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control.

Hudson v. State, 30 So.3d 1199, 1203 (¶ 10) (Miss.2010) (quoting Dixon v. State, 953 So.2d 1108, 1112 (¶ 9) (Miss.2007)). In Hudson, the court also stated that “[t]o test whether the [State] met this standard of proof in individual cases, each case must be viewed in light of its individual facts and circumstances.” Id. at 1204 (¶ 11) (quoting Cunningham v. State, 583 So.2d 960, 962 (Miss.1991)).

¶ 28. Here, Hymes offered only his testimony as evidence that he did not own any of the marijuana recovered during the search of Pearson’s vehicle. In response, the State offered Pearson’s previous testimony during which Pearson stated that most of the marijuana belonged to Hymes. The circuit court also had circumstantial evidence to consider. For example, Hymes had made several trips to Texas prior to this trip and had obtained a Texas driver’s license. Additionally, law enforcement officials confiscated $4,091.83 from Hymes, which corroborated Pearson’s testimony that he and Hymes had planned to buy more marijuana than they ultimately purchased. The amount of cash recovered from Hymes also conflicted with Hymes’s testimony that he only made approximately $300 per week during his two- and-one-half-week stay in Texas.

¶ 29. Based on the record, Hymes failed to present sufficient evidence to demonstrate that he did not constructively possess any of the marijuana recovered from Pearson’s vehicle. The circuit court’s judgment was based on substantial evidence. Accordingly, this issue is without merit.

c. Possession of a Firearm

¶ 30. Hymes argues that the circuit court erred in finding that he had not demonstrated that he was not guilty of the unlawful possession of a firearm by a previously convicted felon. Hymes does not dispute that he is a previously convicted felon, and he does not deny that the firearm belonged to him. However, Hymes contends that he could not have been guilty of possessing a firearm because the firearm was inoperable.

¶ 31. Mississippi Code Annotated section 97-37-5(1) (Supp.2012) states that “[i]t shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm[.]” Additionally, Mississippi Code Annotated section 41-29-152(2) (Rev.2009) defines a firearm as “any weapon, including a starter gun, which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” Here, Hymes failed to offer any evidence that the firearm could not be “readily converted to expel a projectile,” and section 97-37-5(1) does not require the State to prove that the weapon was operable at the time of the felon’s arrest. Accordingly, this issue is without merit.

IV. Alternative Argument

¶ 32. Hymes asserts that he would be entitled to compensation even if this Court were to decide that he failed to prove that he did not possess a weapon but succeeded in proving that he did not possess marijuana. It is true that the nature of this case would allow Hymes to recover compensation from the State if he was successful on only one of his claims. However, as we have found that there is no merit to Hymes’s challenges on appeal and that there is substantial evidence to support the circuit court’s judgment denying Hymes compensation for wrongful conviction, this argument is without merit.

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

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


author: ISHEE, J.,

text:
    Joy HUHN a/k/a Joy Lauren Huhn, Appellant v. CITY OF BRANDON, Mississippi, Appellee.
    No. 2012-KM-00490-COA.
    Court of Appeals of Mississippi.
    June 4, 2013.
    Rehearing Denied Sept. 17, 2013.

      Kevin D. Camp, Jackson, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In September 2011, Joy Huhn was convicted in the Municipal Court of Brandon, Mississippi, of misdemeanor driving under the influence of alcohol (DUI) and careless driving. Huhn appealed to the County Court of Rankin County, Mississippi. After an unsuccessful trial de novo before the county court, Huhn filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The county court denied the motion. Huhn then appealed to the Rankin County Circuit Court. The circuit court affirmed the county court’s judgment. Huhn now appeals the denial of her motion for a JNOV and also asserts that the county court judge applied an incorrect legal standard in determining her guilt. Finding no reversible error, we affirm.

STATEMENT OF FACTS

¶ 2. On October 24, 2010, around 2:00 a.m., Huhn was pulled over while driving her vehicle in Brandon, Mississippi. Brandon Police Department Officer Chris Park testified that he observed Huhn’s vehicle swerving in the road, and he subsequently initiated the traffic stop. Upon approaching the vehicle, Officer Park stated he noticed a strong smell of alcohol emanating from the driver’s side of the vehicle. When Officer Park asked Huhn if she had consumed alcohol on that evening, she admitted to having had one beer earlier in the evening. Huhn also stated that the reason for her car swerving in the road was that she leaned over to retrieve some personal property in the vehicle and inadvertently swerved.

¶3. Officer Park then asked Huhn to step out of the vehicle and requested that she participate in various field-sobriety tests. She agreed to participate in the tests and exited the vehicle. Accordingly, Officer Park instructed her to perform a number of physical tests,' including the horizontal-gaze-nystagmus (HGN) test, the walk-and-turn (WAT) test, the heel-to-toe (HTT) test, and the one-leg-stand (OLS) test. Officer Park testified that Huhn failed the HGN test, showed four out of eight signs of impairment in the WAT test, failed the HTT test, but passed the OLS test. However, Officer Park recognized that Huhn’s failure in the HTT test was not a sign of impairment, but, rather, a misunderstanding of the test’s instructions.

¶ 4. Officer Park then asked Huhn to submit to a portable-breathalyzer test. Upon her refusal, she was arrested for misdemeanor DUI and careless driving. She again refused to participate in a breath test at the police headquarters. Huhn pleaded not guilty to the charges against her, and a bench trial was conducted in the municipal court in September 2011. The municipal court found her guilty of all charges. Huhn appealed to the county court, which granted her a de novo trial.

¶ 5. At the close of trial in the county court, Huhn’s counsel argued the prosecutor had not shown a prima facie case of guilt to meet the State’s burden of proof. The county court deemed this argument a motion for a directed verdict challenging the sufficiency of the evidence. The county court judge determined that the prosecution had met its burden of proof and had established a prima facie case of guilt beyond a reasonable doubt. In addressing the defense counsel’s argument and Huhn’s conviction, the county court judge referenced several standards of law. Among the standards recited was the standard for sufficiency of the evidence, the standard applicable when faced with a motion for a directed verdict.

¶ 6. After the county court found her guilty and sentenced her, Huhn filed a motion for a JNOV or, in the alternative, a new trial. In her motion, she noted that the county court judge had erroneously applied the lesser standard for sufficiency of the evidence, instead of the beyond-a-reasonable-doubt standard for determining guilt, when convicting her of both offenses. She further asserted that the evidence was insufficient to prove her guilty beyond a reasonable doubt. The motion was denied, and Huhn appealed the case to the circuit court, which affirmed the conviction. She now appeals the denial of her motion for a JNOV and asserts she was convicted of DUI and careless driving under an improper standard.

DISCUSSION

¶ 7. While Huhn’s first argument on appeal attacks the sufficiency of the evidence to support the conviction for DUI, this is the same claim asserted through Huhn’s motion for a JNOV. Hence, we review the denial of Huhn’s motion for a JNOV.

¶ 8. In reviewing the denial of a motion for a JNOV, we analyze the circuit court’s decision under an abuse-of-discretion standard. Vaughn v. State, 972 So.2d 56, 59 (¶ 11) (Miss.Ct.App.2008) (citing Dil worth v. State, 909 So.2d 731, 786 (¶ 17) (Miss.2005)). Again, a motion for a JNOV challenges the sufficiency of the evidence. See Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005).

¶ 9. The Mississippi Supreme Court has noted that in reviewing the denial of a motion for a JNOV, “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.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). It is important to note that this is an objective standard and not a subjective one. In other words, an appellate court should not question “whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Id. (quoting Jackson, 443 U.S. at 315, 99 S.Ct. 2781). The key consideration is whether any rational trier of fact could have determined guilt beyond a reasonable doubt. Id.

¶ 10. Accordingly, we look to the essential elements of the crimes charged. Huhn was convicted under Mississippi Code Annotated section 63-11-30(l)(a) (Supp.2012). A conviction under this statute is often referred to as common-law DUI. Knight v. State, 14 So.3d 76, 79 (¶ 6) (Miss.Ct.App.2009) (citation omitted). Common-law DUI can be proven “in cases where the defendant’s blood-alcohol results are unavailable but there is sufficient evidence that the defendant operated a vehicle under circumstances indicating [her] ability to operate the vehicle was impaired by the consumption of alcohol.” Istiphan v. City of Madison, 81 So.3d 1200, 1205 (¶ 9) (Miss.Ct.App.2012) (citation and quotation marks omitted).

¶ 11. Here, ample evidence was offered by the City of Brandon in the form of testimony from the sole testifying witness, Officer Park, with regard to Huhn’s condition on the morning in question. When asked what notified him that Huhn may be impaired, Officer Park stated the following: “Ms. Huhn’s vehicle passed over the right fog line, went back over the left fog line into the turn lane, over the right fog line again, and then proceeded through the red light into the turn lane of oncoming traffic and then back into the [proper] lane.” Officer Park testified that after he pulled the vehicle over and approached the driver’s side window, he immediately noticed a strong smell of alcohol emanating from the vehicle. When asked if she had been drinking, Huhn responded that she had consumed one beer that night.

¶ 12. Officer Park then asked Huhn to submit to several field-sobriety tests. Huhn agreed, and stepped out of the vehicle. Officer Park again noticed a strong smell of alcohol emanating from Huhn’s person. He then began the field-sobriety tests, beginning with the HGN test, which tests for involuntary movement of the eye due to alcohol impairment. Officer Park testified that Huhn failed all three parts of the HGN test.

¶ 13. He then administered the WAT test, consisting of a series of tasks where a person walks down a line and back in a prescribed manner. Officer Park instructed Huhn on how to take the test, during which time Office Park observed Huhn sway and step off of the line. She then failed three other portions of the WAT test, including stepping off of the line and spinning around instead of turning as instructed. Officer Park next administered the HTT test. Although Huhn failed the test in its entirety, Officer Park recognized that this was likely because of a misunderstanding of the instructions. Finally, Officer Park conducted the OLS test. Huhn passed this test without exhibiting signs of impairment.

¶ 14. Although Huhn refused to consent to either the portable-breathalyzer test offered by Officer Park in the field or the breath test offered by the police department at headquarters, her actions, as witnessed by Officer Park, were sufficient to support a conviction of common-law DUI. Her swerving across the road, running a red light, and entering an improper lane of traffic warranted a conviction for careless driving and contributed to Officer Park’s determination that Huhn was driving under the influence of alcohol. Officer Park’s observations of Huhn during the field-sobriety tests were also ample proof that Huhn’s ability to operate her motor vehicle had been impaired by her admitted consumption of alcohol. We find this issue to be meritless.

¶ 15. Next, Huhn asserts that the county court judge applied an improper standard of law when convicting her of common-law DUI. At the close of the trial, defense counsel argued that the State had failed to show a prima facie case of common-law DUI. In other words, the defense counsel asserted that the evidence was insufficient for the State to meet its burden of proof in showing that Huhn had committed common-law DUI beyond a reasonable doubt. Later, in rendering his decision, the county court judge cited Ellis v. State, 77 So.3d 1119 (Miss.Ct.App.2011), as recent and applicable case law on common-law DUI. The county court judge cited both the standards for conviction of common-law DUI, that of guilt of the essential elements of the crime beyond a reasonable doubt, as well as the standard for weight and sufficiency of the evidence.

¶ 16. However, the standards noted were all mentioned in passing within the county court judge’s extensive on-the-record analysis of the evidence before the court. It is erroneous for Huhn to argue on appeal that the conviction must be reversed because the county court improperly relied only on the standard for sufficiency of the evidence instead of the standard for conviction. It is clear from the five pages of transcript wherein the county court judge narrated his analysis of the evidence and the applicable law that his determination of Huhn’s guilt was well-founded both on the law and the evidence. This issue is without merit.

¶ 17. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF MISDEMEANOR DRIVING UNDER THE INFLUENCE OF ALCOHOL AND CARELESS DRIVING AND SENTENCE OF FORTY-EIGHT HOURS OF IMPRISONMENT IN THE CUSTODY OF THE RANKIN COUNTY SHERIFF’S DEPARTMENT, WITH FORTY-EIGHT HOURS SUSPENDED; TWO YEARS OF UNSUPERVISED PROBATION; AND TO PAY ALL FINES ASSOCIATED WITH THE CONVICTIONS AND SENTENCES IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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