text:
    Jimmy W. ZEIGLER, Appellant v. Tim NOLAN and Nanette Nolan, Appellees.
    No. 2013-CA-00404-COA.
    Court of Appeals of Mississippi.
    Sept. 16, 2014.

      James H. Powell III, attorney for appellant.
    Charles W. Wright Jr., Meridian, attorney for appellees.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. Jimmy W. Zeigler filed a complaint against his sister and brother-in-law, Tim and Nanette Nolan, in the Yazoo County Circuit Court, seeking damages for breach of contract. The Nolans answered, claiming that the contract was unenforceable. After a trial on the merits, the jury returned a verdict in favor of the Nolans. Zeigler filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which was denied by the circuit court. Feeling aggrieved, Zeigler appeals and argues: (1) the circuit court improperly excluded expert testimony at trial; (2) the verdict is contrary to the overwhelming weight of the evidence; and (3) the verdict is the result of the jury’s bias and prejudice.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. In 1984, Zeigler moved out of his home, where he was living alone, and moved in with his parents. At that time, Zeigler’s house had multiple defects, but according to Zeigler, the house was livable. In 1985, Tim asked Zeigler if he and his family could rent Zeigler’s house until they were able to build or buy a new home of their own. Zeigler stated that he did not charge the Nolans rent, as the house needed some repairs. Zeigler claimed that Tim agreed to finish the bedroom, fix the hole in the ceiling, finish the garage, and work on anything else that needed to be finished in the house. The Nolans moved into the house, and Zeigler explained that he believed that they would only be in the house for a few months.

¶ 4. A couple of years later, the Nolans were still living in Zeigler’s house and, according to Zeigler, had made some, but not all, of the repairs that they had agreed to make. According to Zeigler, he spoke with Tim about the other repairs that Tim had agreed to make. Zeigler contends that Tim gave an excuse but did not make the remaining repairs and continued to live in the house after that conversation. At some point, Zeigler claims that Tim told him that Tim could not afford to build a house for his family at that time and that it would be four or five more years before they could move out of Zeigler’s house. Zeigler testified that he agreed to let the Nolans stay another four or five years; however, the Nolans lived in the house for a total of twenty-five years. Zeigler stated that he rarely visited the house while the Nolans were living there. He added that he was guilty of being easy-going and that he never made complaints about the lack of repairs that Tim had agreed to make. He stated that he passed the house often and could recognize that the house was in bad shape.

¶ 5. Zeigler stated that by the time the Nolans moved out in June 2009, the house was “full of clutter and in a state of total disarray.” According to Zeigler, he had another conversation with Tim regarding repairs after Tim and his family moved out; however, Tim did nothing. In December 2009, Zeigler had several pictures taken of the house that he claims depicted the condition of the house at the time the Nolans moved out. Zeigler claimed that after the photographs were taken, he talked to Nanette regarding damages to the house and asked her to find out if they were going to pay him for the damages. About two weeks later, Zeigler stated that he called Nanette, and she informed him that she and Tim would pay him for the damages. Zeigler also told Tim during that same phone call that he would examine the house to determine what needed to be fixed and how much it would cost to make the repairs. A couple of weeks later, according to. Zeigler, he told the No-lans that it would- cost $50,000 to repair the house, but no other conversations were had between him and the Nolans. The Nolans did not pay Zeigler. In April 2010, Zeigler received $80,000 from his insurance company for damage done to the house by a tornado. Zeigler claims that he did not spend the money to repair the house because the house was practically worthless after the tornado.

¶ 6. According to Tim, Zeigler and Nanette’s father insisted that the Nolans move into Zeigler’s house in 1985. Tim maintained that he never agreed with Zeigler that, in lieu of rent, he would maintain and improve the house while Tim and Tim’s family were living there. Tim explained that after he and his family moved into Zeigler’s house, Zeigler came to visit regularly. Tim claimed that Zeigler told him that he and his family could stay in the house as long as they needed to, that Zeigler never asked for rent, and that Zeigler never made any complaints about the condition of the house. Tim also stated that he spent about $75,000 working on Zeigler’s house over the twenty-five-year period that he and his family lived in the house. Tim further stated that when Zeigler told him that Zeigler wanted $50,000 to repair his house, he told Zeigler that he did not have $50,000. Tim claimed that he and Zeigler did not make an agreement obligating Tim to pay the $50,000 and that he had not signed any such agreement.

¶ 7. Nanette affirmed that after talking to her father, she and her family decided to move into Zeigler’s house in September 1985. She claimed that they never had any discussion with Zeigler about a rental agreement or contract. When they moved in, the condition of the house was fair, but unfinished. Nanette stated that they paid for all of the improvements made to the house during their stay there.

¶ 8. As stated, after the trial, the jury found in favor of the Nolans. Zeigler filed a motion for a JNOV or, in alternative, a new trial, which the circuit court denied. This appeal followed.

DISCUSSION

I. Real Estate Expert’s Appraisal and Report

119. Before the trial, the Nolans filed a motion in limine, requesting the exclusion of evidence and testimony of Russell Perry, Zeigler’s real estate expert. During a Daubert hearing, Perry testified that he did an appraisal on the house in 2011. He explained that he had to base his report on the pictures that had been taken in 2009, as the house had been damaged by the 2010 tornado to such a degree that he would not have been able to do the appraisal when he examined the house in 2011. Perry stated that he used market data from the retrospective date, June 1, 2009, when appraising the property. He added that he did not know if he was the first appraiser that ever utilized the methodology of relying on pictures that depicted a home before it was destroyed to determine the value of the home. The Nolans objected and stated that because Perry’s opinion was merely speculative and based on assumptions, neither his testimony nor his report should be admitted. The circuit court held that, under Rule 702 of the Mississippi Rules of Evidence, Perry’s report was inadmissible and his appraisal was not rehable.

¶ 10. Zeigler claims that the court erred in finding that Perry’s appraisal was not reliable and that his testimony and report were inadmissible. Appellate courts review the admission or exclusion of expert testimony for abuse of discretion. Hubbard ex rel. Hubbard v. McDonald’s Corp., 41 So.3d 670, 674 (¶ 14) (Miss.2010). Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

“Expert testimony admitted at trial must be based on scientific methods and procedures, not on unsupported speculation or subjective belief.” Hubbard, 41 So.3d at 675 (¶ 16) (citing Miss. Dep’t of Mental Health v. Hall, 936 So.2d 917, 928 (¶ 31) (Miss.2006)).

“The trial judge assumes the critical role as a gatekeeper in assessing the value of proffered expert testimony.” Webb v. Braswell, 930 So.2d 387, 397 (¶ 16) (Miss.2006). “The trial judge has the sound discretion to admit or refuse expert testimony[,] and the judge’s decision will stand unless the discretion he used is found to be arbitrary and clearly erroneous.” Troupe v. McAuley, 955 So.2d 848, 856 (¶ 19) (Miss.2007) (quoting Poole v. Avara, 908 So.2d 716, 721 (¶ 8) (Miss.2005)).

Coastal Hardware & Rental Co. v. Certain Underwriters at Lloyds, London, 120 So.3d 1017, 1027 (¶46) (Miss.Ct.App.2013).

¶ 11. Perry explained that he based his report and his appraisal on photos of the home that were taken in 2009, right after the Nolans had moved out, but before the tornado severely damaged the house. He stated, “My appraisal is based on those photos, okay. But I can’t be for certain because I did not take the photos, nor did I see the house at that time, okay.” However, in 2011, Perry examined the house in person to verify that the floor plans matched the pictures. He offered no authority for the proposition that it is acceptable in the real-estate-appraisal industry to render an appraisal based solely on pictures taken by someone else, although he did testify that followup appraisals, where a personal inspection of the property is not done, are common. He explained that in those cases, the initial inspection is done by an appraiser who actually inspected the premises and took pictures of the property. In the case before us, the pictures were taken for the property owner approximately two years prior to the property being appraised by Perry. As stated, when Perry performed the appraisal, the house had been largely destroyed. On these facts, we cannot find that the circuit court abused its discretion in not allowing Perry to testify as an expert concerning the value of the house in 2009 or in not allowing his report to be admitted into evidence. This issue is without merit.

II. Weight of the Evidence

¶ 12. Zeigler argues that the verdict in this case is contrary to the overwhelming weight of the evidence. “The standard of review for deciding whether or not a jury[’s] verdict is against the overwhelming weight of the evidence is that [appellate courts] must accept the evidence which supports the verdict as the truth and will reverse only if convinced that the circuit court abused its discretion in not granting a new trial.” Richardson ex rel. Richardson v. DeRouen, 920 So.2d 1044, 1047-48 (¶ 7) (Miss.Ct.App.2006) (citation omitted). A new trial will not be ordered unless allowing the verdict to stand would sanction an unconscionable injustice. Id. at 1048 (¶ 7).

¶ 13. Zeigler offers no argument as to how the verdict is against the overwhelming weight of the evidence. The court instructed the jury to return a verdict in favor of the Nolans if it found that (1) the parties did not enter into a valid and binding contractual agreement, or (2) the parties entered into a binding contractual agreement, but the Nolans did not breach the contractual agreement. Although the parties gave conflicting testimony, the evidence is sufficient to support a finding that the Nolans did not enter into a contract with Zeigler to maintain or improve Zeigler’s home in lieu of rent or enter into an agreement to pay Zeigler $50,000 for repairs after they moved out of the home. It is the responsibility of the jury to resolve issues of credibility. “When evidence is conflicting, we defer to the jury’s determination of the credibility of witnesses and the weight of their testimony.” Phillips 66 Co. v. Lofton, 94 So.3d 1051, 1061 (¶ 23) (Miss.2012) (quoting Bickham v. Grant, 861 So.2d 299, 307 (¶ 34) (Miss.2003)). Here, the jury apparently accepted Tim’s testimony as true. Therefore, the jury’s verdict is not against the overwhelming weight of the evidence, and allowing the verdict to stand will not sanction an unconscionable injustice. This issue is without merit.

III. Bias and Prejudice

¶ 14. Zeigler further contends that the verdict is the result of the jury’s bias and prejudice because the circuit court allowed the Nolans to introduce irrelevant and prejudicial testimony. He argues that questions on cross-examination regarding the age of Zeigler’s farm equipment, whether Zeigler paid his parents rent after he moved in with them, and whether Zeig-ler’s father deeded him some land for a business, are all unrelated to his dispute with the Nolans.

¶ 15. “A new trial may be granted where the verdict is against the overwhelming weight of the evidence, or when the jury has been confused by faulty instruction, or when the jury has departed from its oath and its verdict is a result of bias, passion[,] or prejudice.” Id. at 1070 (¶ 58) (quoting Coho Res. Inc. v. Chapman, 913 So.2d 899, 908 (¶ 28) (Miss.2005)). Zeigler does not provide any explanation as to how the testimony prejudiced him or created a bias among the members of the jury. Zeigler merely argues that some of the questions that were asked by the No-lans’ counsel were not relevant to his dispute with the Nolans. However, the relevancy and admissibility of evidence are within the discretion of the circuit court. Byrom v. State, 863 So.2d 836, 878 (¶ 150) (Miss.2003). Based on the record, we cannot say that there was an abuse of discretion by the circuit court in allowing those questions and the respective answers or that the questions and answers invoked bias or prejudice by the jury against Zeig-ler. This issue is without merit.

¶ 16. THE JUDGMENT OF THE YA-ZOO COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 113 S.Ct. 2786. 125 L.Ed.2d 469 (1993).


source: Caselaw Access Project

author: GRIFFIS, P.J., JAMES, J.,

license: Public Domain

text:
    Kimberly Denise WYLIE, Appellant, v. James Willard WYLIE, Appellee.
    No. 2013-CA-00594-COA.
    Court of Appeals of Mississippi.
    Sept. 16, 2014.

      Sabrina D. Howell, A.E. (Rusty) Harlow Jr., attorneys for appellant.
    James Willard Wylie, appellee, pro se.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Kimberly Wylie appeals the judgment entered in the dissolution of her marriage from James Wylie. The chancellor divided the marital property and then awarded Kimberly rehabilitative alimony for three years, together with $2,500 in attorney’s fees. Kimberly argues that the chancellor was in error to not award her periodic alimony, instead of three years of rehabilitative alimony, and to not award a higher sum for attorney’s fees.

FACTS

¶ 2. Kimberly and James were married on November 26,1987. They separated on April 24, 2012. Two children were born of the marriage, both of whom are emancipated.

¶ 3. Kimberly filed a complaint for divorce on the grounds of irreconcilable differences, habitual cruel and inhuman treatment, and uncondoned adultery. Kimberly asked the court for temporary and permanent alimony, temporary and permanent use of the marital residence, and an equitable division of the marital property. James answered the complaint and filed a counterclaim. His alleged that he was entitled to a divorce on the grounds of habitual cruel and inhuman treatment and irreconcilable differences. James also asked for an equitable division of the marital property and attorney’s fees.

¶ 4. At trial, James admitted that he was openly living with another woman with whom he had fathered a child. James testified that he quit school in the ninth grade and began working as a carpenter. He later worked in logging and as a part-time mechanic on weekends. In May 2008, James began working as a pipeliner in the oil business. James testified that his gross income was $86,000 in 2008, $96,000 in 2009, $89,000 in 2010, $95,000 in 2011, and $129,935 in 2012. However, James said that at the time of trial he was between jobs, and he was receiving $2,179 per month in unemployment benefits.

¶ 5. ■ Kimberly testified that she last worked in the pharmacy at Walmart in 2008. She earned between $500 and $600 per month in that job. Kimberly admitted that she had not attempted to find employment since she left Walmart due to health reasons. Kimberly stated that she suffered from diabetes, high blood pressure and sleep apnea, as well as another condition that has never been diagnosed. Kimberly applied for Social Security disability benefits, but her claim was denied.

¶ 6. The chancellor entered a judgment of divorce that granted Kimberly a divorce on the ground of adultery. The chancellor divided the marital property, which is not an issue in this appeal, and awarded Kimberly rehabilitative alimony of $700 per month for three years. The chancellor also awarded Kimberly $2,500 in attorney’s fees.

STANDARD OF REVIEW

¶ 7. Our scope of review in domestic-relations matters is strictly limited. Curry v. Frazier, 119 So.3d 362, 365 (¶ 8) (Miss.Ct.App.2013). “A chancellor’s findings will not be disturbed when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard.” Id.

ANALYSIS

¶ 8. The chancellor followed the proper procedure for the equitable division of assets and the award of alimony. See, e.g., Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994). Kimberly was awarded equity in the marital home of $35,000, a 2005 Pontiac automobile with equity of $6,325, and certain household furnishings valued at less than $8,000. James was awarded his truck with a debt of $20,000 and equity of $1,277. He was also awarded his tools, guns, dining-room table, and two rings. James was ordered to pay the mortgage on the marital home, approximately $344 per month.

I.Alimony

¶ 9. The chancellor determined that alimony was appropriate. The chancellor concluded that “under the facts of this case because the marital assets are not large enough to offset the disparity in the two (2) parties’ incomes, the court must consider alimony....” The chancellor then considered the Armstrong factors and determined that James should pay Kimberly $700 per month in rehabilitative alimony for three years.

¶ 10. Kimberly argues that it was error for the chancellor to award her rehabilitative alimony of $700 for three years instead of periodic alimony. Kimberly claims that based on her limited work history and earning capacity, as opposed to James’s strong work history and earning capacity, equity requires more than a time-limited award of rehabilitative alimony that is unjust, oppressive, and so grossly inadequate. Kimberly argues that $700 per month for three years will leave her unable to meet her estimated living expenses of $2,032 each month.

¶ 11. In Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993), the Mississippi Supreme Court set forth the factors to be used to determine whether a spouse is entitled to alimony. These factors include:

1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at the time of the support determination;
9. The tax consequences of the spousal order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; and
12. Any other factor deemed by the court to be just and equitable in connection with the spousal support.

¶ 12. The chancellor’s opinion provided detailed findings on each of the Armstrong factors. The chancellor correctly recognized that Kimberly and James had a long marriage and that there were no minor children, as well as the age of the parties, the absence of any special tax consequences, and the lack of wasteful dissipation of assets. The chancellor also found:

⅛. The obligation and assets of each party:
The parties owe the mortgage secured by the marital home of about $20,000.00. James owes another $20,000.00 on the Ford F-350 he recently purchased. Because Kimberly has not worked in the past five (5) years, James has carried the full responsibility for servicing all the household debts during this time. Kimberly has no debt. With the proposed division of assets, Kimberly will be getting $41,825.00 (comprised of the house and her car), while James will be getting $5,777.00 (comprised of his three [8] trucks).
8. The standard of living of the parties, both during the marriage and at the time of the support determination: James’s income has allowed the parties to live a modest, but comfortable lifestyle. Living on the road as a pipeliner requires James to maintain a permanent residence as well pay the cost of living at each job location.
10. Fault or misconduct:
From the evidence offered at trial, James’s adultery was the primary cause of the failure of this marriage. James testified that the marriage had not been a good one in a number of years before the separation and that there was no intimacy between them during the last three (3) years they were together.

¶ 13. Kimberly challenges the chancellor’s decision to impute an annual income of $12,000, roughly minimum wage, to her. She contends that her age, health, and limited work history did not support the chancellor’s computation of her earning capacity. She also argues that her limited work history and earning capacity “stood in stark contrast” to James’s strong work history and documented high earning capacity. The chancellor took this into consideration when he imputed an annual earning capacity of $90,000 to James and $12,000 to Kimberly. The evidence indicated that both of the parties were unemployed at the time of trial, and James was drawing unemployment compensation. Kimberly has cited no case authority to support the conclusion that the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard in his Armstrong findings.

¶ 14. Next, Kimberly argues that the chancellor erred when he granted her rehabilitative alimony instead of periodic alimony. “The purpose of alimony is not punitive, but instead, is designed to assist the spouse in meeting his or her reasonable needs while transitioning into a new life.” Elliott v. Elliott, 11 So.3d 784, 786 (¶ 8) (Miss.Ct.App.2009).

¶ 15. Periodic alimony is a “substitute for the marital-support obligation. The award of ... periodic alimony arises from the duty of the husband to support his wife.” Rogillio v. Rogillio, 57 So.3d 1246, 1250 (¶ 11) (Miss.2011) (internal citation omitted). As such, “a husband is required to support his wife in the manner to which she has become accustomed, to the extent of his ability to pay.” Id. In other words, “a financially independent spouse may be required to support the financially dependent spouse in the manner in which the dependent spouse was supported during the marriage, subject to a material change in circumstances.” Id. On the other hand, “[rjehabilitative ... alimony is an equitable mechanism which allows a party needing assistance to become self-supporting without becoming destitute in the interim.” Cuccia v. Cuccia, 90 So.3d 1228, 1236 (¶ 25) (Miss.2012) (citing Hubbard v. Hubbard, 656 So.2d 124, 130 (Miss.1995)). Furthermore, “[rjehabilitative alimony is not to be considered by the chancery court as an equalizer between the parties.” Id.

¶ 16. The chancellor found:

Alimony should be considered only when the circumstances are such that an equitable division of marital property, taking into account each party’s non-marital assets, leaves a deficit for one party. Roberts v. Roberts, 924 So.2d 550 (Miss.Ct.App.2005)[;j]Johnson v. Johnson, 650 So.2d 1281 (Miss.1994). Under the proposed division, Kimberly is receiving a substantially higher share of the marital assets. Without taking into account the household goods and furnishings, she is receiving all of the equity in the marital home of $35,000.00 and the Pontiac automobile valued at $6,325.00, for a total of $41,325.00. By comparison, James is getting three (3) vehicles valued at $5,700.00.
Taking into account the Armstrong factors as outlined above, the Court finds that James should be ordered to pay to Kimberly the sum of $700.00 per month as rehabilitative alimony for a period of three (3) years beginning on the first day of the month following the date the judgment is entered. This obligation will terminate upon the death of either party or upon the remarriage of Kimberly.

¶ 17. Here, the chancellor considered a marriage that included limited marital assets and limited earning potential. At the time of the trial, neither party was employed, and their present income was minimal. Although the chancellor did not provide a more detailed explanation of the reason to award rehabilitative alimony instead of periodic alimony, our law recognizes that a chancellor “enjoys wide discretion in fashioning the financial aspects of the dissolution of a marriage” and will only be reversed on appeal if he abused that discretion. Avery v. Avery, 864 So.2d 1054, 1056 (¶ 9) (Miss.Ct.App.2004). We are of the opinion that the findings were sufficient to support the award.

¶ 18. Kimberly also argues that the chancellor erred in awarding her only $700 per month. The chancellor found that Kimberly’s monthly living expenses totaled $2,032, and estimated her earning capacity to be $1,070. This would leave Kimberly with an approximately $300 deficit.

¶ 19. Again, we note that, at the time of the trial, James was unemployed and was receiving $2,179 per month in unemployment benefits. The chancellor found James’s monthly living expenses totaled $3,404. The chancellor ordered James to pay $700 per month in alimony and $344 per month on the mortgage.

¶20. Here, the numbers provided by the parties will simply not add up. Based on the parties’ income at the time of the trial, their income cannot meet their expenses. This is often the difficult challenge for chancellors to resolve in the dissolution of a marriage. Hence, this is the reason that our law provides that a chancellor “enjoys wide discretion in fashioning the financial aspects of the dissolution of a marriage” and will only be reversed on appeal if he abused that discretion. Avery, 864 So.2d at 1056 (¶ 9).

¶ 21. Based on the parties’ estimated monthly living expenses and James’s income as of the date of the trial, we cannot say that the chancellor abused his discretion by awarding Kimberly $700 per month in alimony.

II. Attorney’s Fees

¶22. Kimberly also challenges the chancellor’s decision as to the award of attorney’s fees. Kimberly argues it was error to not award her the total amount of attorney’s fees that she incurred. Kimberly submitted an affidavit showing that she incurred attorney’s fees totaling $5,151.85. The trial court ultimately awarded Kimberly partial fees of $2,500. Kimberly argues that she presented ample evidence at trial demonstrating her inability to pay her attorney’s fees; thus, the trial court erred in failing to award her the full amount that she incurred. Kimberly further claims that the chancellor erred by not discussing the factors set forth in McKee v. McKee, 418 So.2d 764, 767 (Miss.1982).

¶ 28. In the opinion, the chancellor noted that Kimberly requested attorney’s fees in the amount of $5,151.85 and found: “[H]aving considered the McKee factors, the court finds that this is an appropriate case to award Kimberly a partial attorney’s fee of $2,500.” “The matter of awarding attorney’s fees is largely entrusted to the sound discretion of the chancellor.” Rhodes v. Rhodes, 52 So.3d 430, 449 (¶ 77) (Miss.Ct.App.2011) (citing McKee, 418 So.2d at 767). Thus, “we are reluctant to disturb a chancellor’s discretionary determination whether or not to award attorney’s fees and ... the amount of any award.” Id. (quoting Smith v. Smith, 614 So.2d 394, 398 (Miss.1993)).

¶ 24. We have held that “failure to address the McKee factors is not necessarily a cause to reverse an award.” Miley v. Daniel, 37 So.3d 84, 87 (¶ 7) (Miss.Ct.App. 2009) (quoting Mitchell v. Mitchell, 828 So.2d 568, 573 (¶23) (Miss.Ct.App.2002)). Here, the chancellor properly considered the McKee factors regardless of whether his written opinion contained a discussion of each individual factor.

¶ 25. Having found no error, the judgment of the chancery court is affirmed.

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

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

JAMES, J.,

concurring in part and dissenting in part:

¶ 27. I agree with the majority’s decision regarding attorney’s fees. However, I would find that the chancellor abused his discretion by awarding Kimberly rehabilitative alimony rather than periodic alimony; therefore; I respectfully concur in part and dissent in part.

¶ 28. In Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993), the Mississippi Supreme Court set forth the factors to be used to determine whether a spouse is entitled to alimony:

1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at the time of the support determination;
9.The tax consequences of the spousal order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; and
12. Any other factor deemed by the court to be just and equitable in connection with the spousal support.

A.The Parties’ Expenses and Income

¶ 29. James’s income, at the time of the proceeding, was $2,179 a month from unemployment benefits. The chancellor noted that Kimberly had no income and had not worked since 2008. Kimberly’s living expenses were $2,032 per month, while James’s living expenses totaled $3,404 per month. The chancellor further found:

[DJuring the past five years James shows earning[s] between $86,000 and $130,000. At the current minimum wage of $7.25 an hour, a [full-time worker] brings home around $1,070 each month. Under the facts in this case[,] the court is of the opinion that it is justified in imputing the ability of James to earn at least $90,000 a year and Kimberly to earn at least $12,000 a year.

B.Health and Earning Capacities of the Parties

¶ 30. The chancellor found James to be in good health and, at age forty-four, “entering his peak earning years.” The chancellor further noted that James’s substantially higher earning capacity gave him an objectively more secure financial future. In contrast, Kimberly, at age forty-two, suffered from diabetes, hypertension, and sleep apnea. The chancellor found these ailments to be well managed based on Kimberly’s testimony. Considering Kimberly’s health, age, and work history, the chancellor found that her earning capacity was limited to minimum wage or slightly better than minimum wage.

C.Other Findings

¶ 31. The parties were married for twenty-five years. The chancellor found that the James’s infidelity was the primary cause of the failure of the marriage. Finally, noting that alimony is properly considered in conjunction with the division of marital property, the chancellor took into account the disparity in the property division, noting that “under the ... division [of marital property,] Kimberly is receiving a substantially higher share of the marital assets.” The property subject to marital distribution included the marital home and household furnishings and four vehicles. The chancellor noted that “[without taking into account the household goods and furnishings, Kimberly is receiving all of the equity in the marital home of $35,000.00 and the Pontiac automobile valued at $6,325.00, for a total of $41,325.00[,] ... [and] James is getting three (3) vehicles valued at $5,700.00.”

¶ 32. Based on these findings, the chancellor awarded Kimberly rehabilitative alimony of $700 per month for three years. Given the chancellor’s findings and the evidence and testimony at trial, I find that the chancellor abused his discretion in awarding rehabilitative alimony rather than periodic alimony.

¶33. “The purpose of alimony is not punitive, but instead, is designed to assist the spouse in meeting his or her reasonable needs while transitioning into a new life.” Elliott v. Elliott, 11 So.3d 784, 786 (¶ 8) (Miss.Ct.App.2009). Periodic alimony is a “substitute for the marital-support obligation. The award of ... periodic alimony arises from the duty of the husband to support his wife.” Rogillio v. Rogillio, 57 So.3d 1246, 1250 (¶ 11) (Miss.2011) (internal citation omitted). As such, “a husband is required to support his wife in the manner to which she has become accustomed, to the extent of his ability to pay.” Id. In other words, “a financially independent spouse may be required to support the financially dependent spouse in the manner in which the dependent spouse was supported during the marriage, subject to a material change in circumstances.” Id. On the other hand, “[rjeha-bilitative ... alimony is an equitable mechanism which allows a party needing assistance to become self-supporting without becoming destitute in the interim.” Cuccia v. Cuccia, 90 So.3d 1228, 1236 (¶ 25) (Miss.2012) (citing Hubbard v. Hubbard, 656 So.2d 124, 130 (Miss.1995)). Furthermore, “[rehabilitative alimony is not to be considered by the chancery court as an equalizer between the parties.” Id.

¶ 34. The chancellor found that Kimberly’s health issues were well managed, and he estimated that she possessed an earning capacity of $1,070 per month, or $12,000 per year. However, these findings are inconsistent with the testimony at trial. Kimberly testified that, in addition to her diabetes, hypertension, and sleep apnea, she suffered from an unknown illness, for which she has been hospitalized several times. She further testified that her health issues prevented her from maintaining a job. Kimberly last worked in the pharmacy at Walmart; however, she was terminated for missing too much work due to her poor health. Likewise, the chancellor estimated Kimberly’s earning capacity to be $1,070 per month. However, Kimberly testified that her job at Wal-mart, which paid approximately $500 to $600 per month, was the most lucrative employment she had ever been able to secure. It is clear from her testimony that Kimberly was completely dependent on James for support.

¶ 35. These inconsistencies notwithstanding, the chancellor found that James had an earning capacity of $90,000 per year, while Kimberly had an earning capacity of $12,000 per year. This finding does not support an award of rehabilitative alimony of $700 per month for three years. Given Kimberly’s health problems and limited work history, I find it doubtful that she will be able to become self-supporting in the near future.

¶ 36. The disparity in the equitable distribution of the marital property is noted. Kimberly received property totaling $41,325.00, which includes the marital home, while James is getting three vehicles valued at $5,700. However, a disparity in the equitable distribution of the marital property should not be a mechanism to deny periodic alimony where the facts of the case warrant an award of periodic alimony. Here, the marital property consists of unliquidated assets. Kimberly cannot spend unliquidated assets, and the record does not show that she is capable of managing or generating funds from the assets to care for herself. James is required to support Kimberly in a manner to which she has become accustomed to the extent of his ability to pay. Rogillio, 57 So.3d at 1250 (¶ 11).

¶ 37. Therefore, I would find that the chancellor abused his discretion in awarding rehabilitative alimony rather than periodic alimony. Therefore, I would reverse the chancellor’s award of rehabilitative alimony.

¶ 38. An award of $700 per month for three years after twenty-five years of marriage is not an equitable award. It is completely inadequate. However, based on the parties’ present financial situation, I agree with the majority’s finding that the chancellor did not err in the amount of the award. When the alimony payment of $700 per month is considered with the monthly mortgage payment, James is paying a total of $1,044, roughly half of his present monthly income. Considering the parties’ estimated monthly living expenses, and James’s present income, I cannot say that the chancellor abused his discretion by awarding Kimberly $700 per month in alimony. However, given the chancellor’s finding that James possesses an earning capacity of $90,000 per year, I would note that the amount of the award can be revisited by the chancellor upon a material change in circumstances. See Armstrong, 618 So.2d at 1281 (“Periodic alimony may be modified by increasing, decreasing, or terminating the award, in the event of a material change of circumstances[.]”).

¶ 39. I concur with the majority’s decision on attorney’s fees.

      . This affidavit, although entered into evidence during the trial, was not in the record.

      . The McKee factors include: (1) a party’s financial inability to pay, (2) the skill and standing of the attorney, (3) the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, (4) the time and labor required, (5) the usual and customary charge in the community, and (6) the preclusion of other employment by the attorney due to the acceptance of the case. McKee, 418 So.2d at 767.

      . In addition, James was awarded two rings, guns, tools, and a dining-room table that James characterized as a family heirloom. All other personal property and household goods were awarded to Kimberly.

      . To be precise, $1,070 per month would total $12,840 per year.


author: LEE, C.J.,

text:
    Omar L. NELSON a/k/a Omar Nelson, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00835-COA.
    Court of Appeals of Mississippi.
    Sept. 16, 2014.
    Pearl River County Circuit Court, Hon. Prentiss Greene Harrell, J.
    Omar L. Nelson, Jackson, appellant, pro se.
    A. Morris Sweatt, Columbia, attorney for appellee.
    Before LEE, C.J., ISHEE and JAMES, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Omar Nelson was involved in an illegal drug-trafficking operation, supplying Pearl River County with illegal drugs. The Pearl River County Sheriffs Department conducted a year-long investigation, with help from the United States Drug Enforcement Agency to assist with possible federal prosecution. The sheriffs department served warrants on properties occupied and used by Nelson. During the execution of the search warrants, several items belonging to Nelson were seized; some of these items were used as evidence in Nelson’s criminal prosecution; and some were seized as forfeitable items.

¶2. On March 25, 2011, the sheriffs department filed a petition for forfeiture in the Pearl River County Circuit Court. A summons was issued to Nelson that same day, and the return of process indicates Nelson was personally served with process on June 22, 2011. Nelson failed to respond to the forfeiture petition.

¶ 3. The State filed a motion for a default judgment, asking the trial court to conduct a hearing to determine whether the property in question was subject to forfeiture. The trial court heard evidence and concluded the property was forfeited. The trial court entered a default judgment on August 16, 2011, declaring the Pearl River County Sheriffs Department and the Fifteenth Circuit Court District Attorney’s Office owners of the property in question.

¶ 4. On April 29, 2013, Nelson filed a petition for return of his seized property, which included jewelry, a television, and 108 compact discs. The trial court dismissed Nelson’s petition with prejudice, finding Nelson’s petition was untimely. Nelson now appeals to this Court, asserting that jurisdiction was proper in federal court.

DISCUSSION

¶ 5. In his only issue on appeal, Nelson argues that jurisdiction was proper in federal court. However, we find Nelson’s petition filed April 29, 2013, was untimely; thus, we affirm the trial court’s judgment. According to Mississippi Code Annotated section 41-29-179(1) (Rev. 2013), “an owner of property ... that has been seized shall file an answer within thirty (30) days after the completion of service of process.” Nelson failed to do so. The statute further states that “[i]f an answer is not filed, the court shall hear evidence that the property is subject to forfeiture and forfeit the property to the Mississippi Bureau of Narcotics or the local law enforcement agency.” Id. In this instance, the trial court entered a default judgment declaring the sheriffs department owner of the property in question.

¶ 6. Mississippi Rule of Civil Procedure 55(c) states that a default judgment may be set aside for good cause shown in accordance with Mississippi Rule of Civil Procedure 60(b). But Nelson has failed to raise any of the reasons listed in Rule 60(b) that might offer him relief. Ultimately, the trial court determined Nelson’s petition was untimely. Under our familiar abuse-of-discretion standard, we cannot find the trial court erred in dismissing Nelson’s petition as untimely. See Tatum v. Barrentine, 797 So.2d 223, 227 (¶ 15) (Miss. 2001).

¶ 7. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: BOLIN, Justice. MURDOCK, Justice BOLIN, Justice. MOORE, Chief Justice

text:
    Anthony O’NEAL and Jana O’Neal v. BAMA EXTERMINATING COMPANY, INC.
    1120176.
    Supreme Court of Alabama.
    July 3, 2013.
    Dissent Issued on Denial of Rehearing Oct. 25, 2013.

      Mark D. Morrow, Tuscaloosa, for appellants.
    W. Hill Sewell of Lloyd, Gray, Whitehead & Monroe, P.C., Birmingham, for appellee.
   BOLIN, Justice.

Anthony O’Neal and his wife, Jana O’Neal, appeal from an order of the Tuscaloosa Circuit Court granting a motion to compel arbitration filed by Bama Exterminating Company, Inc. We affirm.

Facts and Procedural History

On September 30, 2010, the O’Neals closed on the purchase of a house from Michael and Eloise Wilson. As part of the lending requirements related to the purchase of the property, Bama Exterminating prepared an “Official Alabama Wood Inspection Report” (“the termite-inspection report”). Following an inspection of the house, Bama Exterminating, on September 21, 2010, issued the termite-inspection report indicating that no current or active termite infestation had been detected. However, the termite-inspection report did note that the carport area of the house had been treated for a termite infestation by Bama Exterminating in January 2007. The termite-inspection report contained the following arbitration provision:

“Any dispute arising out of or relating to this WDO-WDI Inspection shall be resolved exclusively by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules and pursuant to the Federal Arbitration Act. The award of the arbitrator shall be final and binding and may be entered in any court having jurisdiction.”

Anthony O’Neal’s signature appears immediately below the arbitration provision. Additionally, the O’Neals, on September 30, 2010, entered into a termite-service and repair contract as part of the transfer to them of the original termite bond on the house held by the Wilsons (“the service contract”). The service contract contained an arbitration provision, which states:

“BINDING ARBITRATION. The parties agree that this Contract substantially affects interstate commerce. In the event of a dispute between the Bama [Exterminating] and/or its employees and Customer arising out of or relating to this Contract, or to the identified property in any way, whether by virtue of contract, tort, or otherwise, including but not limited to the interpretation of the terms and conditions of this Contract, the making of the Contract, or breach of any provision of this Contract, the parties hereby expressly agree to submit their dispute to binding arbitration for resolution. The parties agree to choose a single arbitrator to examine and render a decision on any dispute. The single arbitrator shall be mutually chosen by the parties. The parties acknowledge and understand that by agreeing to submit their dispute to binding arbitration they are effectively waiving their right to trial by jury as a means of resolving disputes. Furthermore, the parties acknowledge that they desire to arbitrate any dispute arising from this agreement in an effort to resolve such dispute(s) quickly and avoid the costs of litigation. Judgment upon such arbitration award may be entered in any court having jurisdiction. Each party shall be responsible for paying any attorney fees, expert witness fees and other expenses it incurs on its behalf in connection with the arbitration, plus one-half the arbitrator’s fee and one-half of any expenses incurred by the arbitrator, and the award shall assess the arbitrator’s fee and expenses accordingly.”

The O’Neals took possession of the house on October 2, 2010. Approximately two weeks after taking possession of the house, the O’Neals allege that they began to see “bugs” crawling on the walls. According to the O’Neals, they contacted Bama Exterminating, which performed another inspection of the house and confirmed the existence of a termite infestation. The O’Neals allege that an independent inspection of the house by another pest-control company ultimately revealed a termite infestation in nine areas of the house.

On February 22, 2011, the O’Neals sued Bama Exterminating and the Wilsons alleging negligence, wantonness, and breach of contract. The O’Neals attached to their complaint copies of the termite-inspection report and the service contract containing the arbitration provisions. On March 7 and 8, 2011, the O’Neals issued a notice of deposition for the Wilsons.

On March 28, 2011, Bama Exterminating answered the O’Neals’ complaint and asserted as an affirmative defense, among other things, that the “matter and issues referred to herein are subject to binding arbitration.” On March 30, 2011, counsel for the O’Neals sent an electronic mail (“e~ mail”) to the counsel for Bama Exterminating, stating:

“As per our phone conversation, I will not agree to waive the jury demand in lieu of your intent to file a motion compelling arbitration. However, after I depose the Wilsons I will consider your request. Furthermore, if you wish to attend the depositions of the Wilsons on the 18th, I will agree that your attendance will not be used as evidence of ‘participation in the litigation process’ for responding to any motion to compel you may file.”

Counsel for Bama Exterminating responded on March 31, 2011, stating:

“I have spoken to my clients and we are comfortable with you issuing a letter indicating our participation in the depositions of the Wilsons will not be considered a waiver of our right to file a Motion to Compel Arbitration.”

On May 6, 2011, counsel for Bama Exterminating sent an e-mail to counsel for the O’Neals regarding scheduling an inspection of the house. Counsel for the O’Neals responded that same day, stating: “I will have to confirm, however, I don’t expect that -there is a problem_ My client is a fireman, though, and I will need to see what his hours are looking like right now....” On May 10, 2011, counsel for Bama Exterminating e-mailed counsel for the O’Neals to confirm the house inspection for May 12, 2011.

On May 18, 2011, counsel for Bama Exterminating requested a “follow-up” inspection of the house “for purposes of appraising damage and costs to repair.” This follow-up inspection took place on June 6, 2011.

On June 20, 2011, Bama Exterminating requested from the O’Neals an estimated cost of relocating them to a suitable residence during the course of the termite treatment. On July 6, 2011, Bama Exterminating notified the O’Neals that it wanted to have the house appraised. Bama Exterminating also sought from the O’Neals a settlement demand and suggested the possibility of mediation. On July 29, Bama Exterminating notified the O’Neals that it had retained a real-estate appraiser to appraise the house and sought from the O’Neals potential dates on which the appraisal could take place. The appraisal was performed on August 5, 2011. From August 22, 2011, through November 22, 2011, the parties continued to discuss the possibility of settlement and/or mediation.

On January 26, 2012, counsel for the O’Neals notified Bama Exterminating that they had discovered evidence of a new termite “dirt trail” in an area of the house not previously determined to have a termite infestation.

On April 4, 2012, the trial court set the case for trial on June 5, 2012. On April 9, 2012, the parties jointly moved the trial court to continue the case, stating that the parties had agreed to mediation and that little discovery had taken place. The parties expressly stated that “[n]o party [would] be unfairly prejudiced” by a continuance to allow for mediation and to conduct discovery. On April 10, 2012, the trial court entered an order continuing the case until October 2012.

On April 23, 2012, counsel for Bama Exterminating requested permission from the O’Neals to perform an additional inspection of the house in order to confirm their January allegations of a new active termite infestation in light of the fact that Bama Exterminating’s own expert did not find an active termite infestation in the house. The O’Neals refused to give Bama Exterminating permission to conduct an additional inspection for termites. On May 1, 2012, Bama Exterminating again requested permission from the O’Neals to allow an additional termite inspection. On May 18, 2012, the O’Neals amended their complaint to assert a claim of fraudulent suppression against both the Wilsons and Bama Exterminating. On that same date, the O’Neals denied Bama Exterminating’s second request for permission to conduct an additional termite inspection of the house.

On June 1, 2012, Bama Exterminating moved the trial court for an order compelling the O’Neals to provide access to and to permit it to perform a follow-up termite inspection of the house. On June 4, 2012, the O’Neals responded to the motion to compel inspection of their house, arguing that the motion to compel was untimely and without proper foundation because Bama Exterminating had failed to file a proper discovery request pursuant to Rule 34, Ala. R. Civ. P.

On June 6, 2012, the parties mediated the case, and mediation proved unsuccessful. On that same date, the O’Neals served Bama Exterminating with interrogatories and requests for production. On June 8, 2012, Bama Exterminating answered the amended complaint, again stating as an affirmative defense that all issues asserted in the amended complaint were subject to binding arbitration.

On June 11, 2012, Bama Exterminating served a request to inspect the O’Neals’ house pursuant to Rule 34, Ala. R. Civ. P. The O’Neals responded that same day, agreeing to the inspection by Bama Exterminating. On June 12, 2012, Bama Exterminating filed a notice of intent to serve subpoenas on the O’Neals’ expert, Warrior Pest Control, for the production of documents after the O’Neals had alleged the presence of an active termite infestation in the house.

On June 18, 2012, Bama Exterminating moved the trial court “for a judgment on the pleadings to limit damages” to $50,000, which is the amount it claimed it was obligated to pay under the service contract. On July 10, 2012, the O’Neals notified Bama Exterminating that it had yet to comply with their discovery requests. The O’Neals requested that Bama exterminating comply with those requests within five days. On July 16, 2012, Bama Exterminating informed the O’Neals that it was in the process of responding to the discovery requests. Bama Exterminating also informed the O’Neals that its response to the discovery requests “should not be interpreted by you ... to mean Bama exterminating intends to waive its right to compel arbitration in this case.” On that same date, the O’Neals objected to Bama Exterminating’s filing any motion to compel arbitration based on Bama Exterminating’s participation in the litigation process. On July 18, 2012, the O’Neals moved the trial court for a clarification that it would treat Bama Exterminating’s motion for a judgment on the pleadings as a motion for a summary judgment. On July 20, 2012, Bama Exterminating responded to the O’Neals’ motion for clarification, arguing that the motion for a judgment on the pleadings should not be treated as a motion for a summary judgment because it did not require the trial court to consider matters outside the pleadings.

On August 7, 2012, Bama Exterminating moved the trial court to compel arbitration and to stay the proceedings until after the arbitration process was completed. On September 18, 2012, the O’Neals filed a response in opposition to the motion to compel arbitration and to stay the proceedings, arguing, among other things, that Bama Exterminating had waived its right to compel arbitration by substantially participating in the litigation process, thereby substantially prejudicing the O’Neals if the case proceeds to arbitration. On September 24, 2012, the trial court entered an order granting the motion to compel arbitration and to stay the proceedings. The O’Neals appeal.

Standard of Review

“No ore tenus testimony was presented to the trial court; therefore, ‘ “the trial court is in no better — or different — position than this Court to decide the legal significance of a party’s conduct,”’ Hales v. ProEquities, Inc., 885 So.2d 100, 105 (Ala.2003) (quoting Karl Storz Endoscopy-America, Inc. v. Integrated Med. Sys., Inc., 808 So.2d 999, 1008 (Ala.2001)), and we review de novo the trial court’s determination that a party has waived its right to arbitration.”

ClimaStor IV, L.L.C. v. Marshall Constr., L.L.C., 4 So.3d 452, 455 (Ala.2008). Rule 4(d), Ala. R.App. P., authorizes an appeal of an order either granting or denying a motion to compel arbitration. Hales v. ProEquities, Inc., 885 So.2d 100, 104 (Ala.2003). Accordingly, this appeal is properly before this Court despite a final disposition not having been made as to the claims asserted against the Wilsons. See Ex parte Directory Assistants, Inc., 49 So.3d 1172 (Ala.2009).

Discussion

The O’Neals argue on appeal that Bama Exterminating has waived its right to compel arbitration by substantially invoking the litigation process. The O’Neals further argue that they would be substantially prejudiced if their claims were submitted to arbitration at this point.

This Court has stated:
“ ‘Our review of the issue whether a party has waived its right to arbitration by substantially invoking the litigation process is governed by the standard enunciated in Companion Life Insurance Co. v. Whitesell Manufacturing, Inc., 670 So.2d 897, 899 (Ala.1995):
“ ‘ “It is well settled under Alabama law that a party may waive its right to arbitrate a dispute if it substantially invokes the litigation process and thereby substantially prejudices the party opposing arbitration. Whether a party’s participation in an action amounts to an enforceable waiver of its right to arbitrate depends on whether the participation bespeaks of an intention to abandon the right in favor of the judicial process and, if so, whether the opposing party would be prejudiced by a subsequent order requiring it to submit to arbitration. No rigid rule exists for determining what constitutes a waiver of the right to arbitrate; the determination as to whether there has been a waiver must, instead, be based on the particular facts of each case.”
“ ‘Both substantial invocation of the litigation process and prejudice must be present to establish waiver. Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 So.2d 1 (Ala.1986). Because of the strong federal policy applicable to arbitration proceedings set forth in the Federal Arbitration Act, 9 U.S.C. § 1 et seq., one seeking to establish a waiver of arbitration bears a heavy burden. SouthTrust Bank v. Bowen, 959 So.2d 624 (Ala.2006); Mutual Assurance, Inc. v. Wilson, 716 So.2d 1160 (Ala.1998).’”

ClimaStor IV, 4 So.3d at 456 (quoting Paw Paw’s Camper City, Inc. v. Hayman, 973 So.2d 344, 347 (Ala.2007)). “ ‘[A] presumption exists against a finding that a party has waived the right to compel arbitration.’ ” Zedot Constr., Inc. v. Red Sullivan’s Conditioned Air Servs., Inc., 947 So.2d 396, 399 (Ala.2006) (quoting Conseco Fin. Corp.-Alabama v. Salter, 846 So.2d 1077,1080 (Ala.2002)).

The O’Neals point to the following as indicative of Bama Exterminating’s substantial invocation of the litigation process: (1) on three separate occasions Bama Exterminating requested that the O’Neals allow its experts (termite expert, construction and repair expert, and real-estate appraiser) to inspect the house; (2) on June 1, 2012, Bama Exterminating moved the trial court to compel the O’Neals to permit a fourth inspection by its termite expert; (3) on June 11, 2012, Bama Exterminating filed a discovery request seeking entry onto the O’Neals’ property by its expert; (4) on June 18, 2012, Bama Exterminating moved the trial court for a judgment on the pleadings seeking an order from the trial court capping its damages under the service contract to $50,000; (5) on June 26, 2012, Bama Exterminating attended a hearing on its motion to compel inspection of the house; (6) on June 12, 2012, Bama Exterminating filed a notice to serve third-party subpoenas directed at the O’Neals’ expert; and (7) on April 9, 2012, Bama Exterminating joined the other parties in filing a motion to continue the case after .it had been set for trial.

This Court has stated that “[m]erely answering on the merits, asserting a counterclaim (or cross-claim) or participating in discovery, without more, will not constitute a waiver” of the right to arbitration. Voyager Life Ins. Co. v. Hughes, 841 So.2d 1216, 1219 (Ala.2001) (internal quotation marks omitted). Additionally, we have also noted that “the earliest point at which waiver of the right to arbitration may be found is ‘when the other party files an answer on the merits.’” Hughes, 841 So.2d at 1219-20 (some internal quotation marks omitted).

Initially, we note that Bama Exterminating raised arbitration as an affirmative defense in its first responsive pleading and again in its answer to the O’Neals amended complaint. Bama Exterminating never served the O’Neals with any interrogatories or requests for production of documents, nor did it notice any depositions. Bama Exterminating did not respond to the O’Neals’ discovery requests and, although it did attend the depositions of the Wilsons, which were noticed by the O’Neals, it did so only after the O’Neals agreed that its attendance at those depositions would not be considered evidence of substantial participation in the litigation process.

Although Bama Exterminating entered the O’Neals’ property on three occasions to confirm the alleged termite damage, to appraise the damage allegedly caused by the termite infestation and the costs to repair the damage, and to appraise the value of the house, it is clear from the record that Bama Exterminating was merely gathering the information necessary for purposes of mediation and/or settlement discussions. Bama Exterminating invoked Rule 34, Ala. R. Civ. P., and moved the trial court to compel a fourth inspection of the O’Neals’ house only after the O’Neals had alleged, in January 2012, the presence of a new active termite infestation and had denied Bama Exterminating’s termite expert access to the property to confirm the presence of a new infestation. Bama Exterminating also filed its notice of intent to serve third-party subpoenas on the O’Neals’ expert after the O’Neals had alleged the presence of a new active infestation.

The O’Neals point to Bama Exterminating’s motion for a judgment on the pleadings to limit its damages to $50,000 as evidence of its substantially participad ing in the litigation process. Bama Exterminating’s request that the trial court limit its damages to $50,000 appears inconsistent with an intention to compel arbitration, because the issue of damages would generally be an issue to be determined by the arbitrator. However, “the mere filing of a pleading does not constitute a waiver of the right to compel arbitration.” Salter, 846 So.2d at 1081.

In Zedot Construction, supra, Zedot, a general contractor on a construction project, entered into a subcontract with Red Sullivan’s Conditioned Air Services, Inc. (“CAS”), to perform certain work on the project. The subcontract contained an arbitration clause. Subsequently, Zedot terminated CAS and employed a new subcontractor. CAS sued Zedot, asserting various theories on which it sought recovery. Zedot moved the trial court to dismiss the complaint against it, arguing that the claims were barred by the applicable statute of limitations; the motion to dismiss made no mention of the arbitration clause. In support of its motion to dismiss, Zedot attached an affidavit. Because the trial court did not exclude the affidavit, Zedot’s motion to dismiss was converted to a motion for a summary judgment. CAS filed a response in opposition to the motion for a summary judgment. The trial court denied Zedot’s motion and ordered it to answer CAS’s complaint. Zedot answered the complaint, pleading arbitration as an affirmative defense. Thereafter, Zedot moved the trial court to compel arbitration. CAS responded that Zedot had waived its right to compel arbitration by substantially participating in the litigation process. The trial court agreed and denied the motion to compel arbitration.

Zedot argued on appeal that the filing of its motion to dismiss, which was treated as a motion for a summary judgment, was the only pleading Zedot had filed before it asserted the affirmative defense of arbitration in its answer and that the filing of that motion did not constitute a substantial invocation of the litigation process. This Court agreed, stating:

“Before moving to compel arbitration, Zedot did nothing more than file a motion to dismiss and an answer to CAS’s complaint. That Zedot’s motion to dismiss was treated as one for a summary judgment is, in and of itself, not disposi-tive of the issue whether Zedot substantially invoked the litigation process. The affidavit attached to Zedot’s motion was simply intended to show that Zedot was a licensed contractor, which is a prerequisite to the application of the statute of limitations set out in § 6-5-221. The affidavit did not impose on CAS a burden to engage in discovery in order to oppose Zedot’s motion.”

Zedot Constr., 947 So.2d at 399.

Bama Exterminating’s motion for a judgment on the pleadings to limit its damages to $50,000 was based on a provision contained in the service contract the O’Neals appended to their original complaint in this case and, therefore, did not go beyond or outside the pleadings. This motion, like the motion to dismiss in Zedot, did not impose a burden on the O’Neals to engage in discovery in order to oppose, especially as it was the O’Neals who appended the service contract to their complaint. In fact, the only opposition to the motion for a judgment on the pleadings offered by the O’Neals was their motion for a clarification contending that the motion should be treated as one for a summary judgment. The O’Neals offered no substantive opposition to the contract provision limiting Bama Exterminating’s damages to $50,000. The motion was made after Bama Exterminating had twice raised arbitration as an affirmative defense to the claims asserted by the O’Neals. Subsequent to the filing of this motion, Bama Exterminating again made known its intention to compel arbitration when it informed the O’Neals that any response to their earlier discovery requests — which Bama Exterminating did not comply with — “should not be interpreted by you ... to mean Bama Exterminating intends to waive its right to compel arbitration in this case.” Accordingly, we cannot say that Bama Exterminating waived its right to compel arbitration by moving the trial court for a limited judgment on the pleadings based on the facts in this case.

Finally, the O’Neals give great importance to the joint motion filed on April 9, 2012, seeking a continuance of the case after it had been set for trial, as indicative of Bama Extermmating’s substantially invoking the litigation process. The O’Neals argue that the motion made no mention of Bama Extermmating’s arbitration defense, stated that “additional discovery [was] needed for the parties to adequately prepare this case for trial,” and requested that the trial court set the case for trial at another time. Again, we cannot say that this joint motion filed by the parties constituted a waiver of Bama Exterminating’s right to compel arbitration.

As noted above, Bama Exterminating had raised arbitration as an affirmative defense in its first responsive pleading and again in response to the O’Neals’ amended complaint, which was filed after the joint motion to continue. Further, at the time the parties jointly moved the trial court for a continuance, the initial trial date was less than two months away on June 5, 2012. The parties had agreed to mediate the case but had not yet done so. The joint motion to continue informed the trial court that the parties had agreed to mediate the case and that little discovery had thus far been completed. Assuming mediation was unsuccessful, as was the case, should arbitration not have been ordered, the parties would have needed to conduct additional discovery in order to prepare the case for trial. The parties forthrightly informed the trial court of this in the joint motion to continue. When the joint motion to continue is viewed in this context, it cannot be considered as an intention by Bama Exterminating to waive its right to compel arbitration.

Conclusion

After reviewing the record in this case, we conclude that the O’Neals have faded to meet their heavy burden of establishing that Bama Exterminating waived its right to compel arbitration by substantially invoking the litigation process. Because we have concluded that Bama Exterminating has not substantially invoked the litigation process, we pretermit discussion of whether the O’Neals were prejudiced.

AFFIRMED.

STUART, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

MOORE, C.J., and PARKER and MURDOCK, JJ., dissent.

MURDOCK, Justice

(dissenting).

Bama Exterminating Company, Inc., did not move to compel arbitration for approximately a year and a half after the initial complaint was filed. Furthermore, during this year and one-half, Bama Exterminating sought to engage the trial court in more than one matter — including a motion that would have required the trial court to assess the validity of a contractual provision purportedly limiting Bama Exterminating’s damages to $50,000 and to enter a judgment in its favor applying that provision — and otherwise participated in the litigation filed by Anthony and Jana O’Neal. Specifically, during the course of a year and a half, (1) on three separate occasions Bama Exterminating requested that the O’Neals allow its experts (termite expert, construction and repair expert, and real-estate appraiser) to inspect the O’Neals’ house; (2) on June 1, 2012, Bama Exterminating moved the trial court to compel the O’Neals to permit a fourth inspection of the house by its termite expert; (3) on June 11, 2012, Bama Exterminating filed a discovery request seeking entry onto the O’Neals’ property by its expert; (4) on June 18, 2012, Bama Exterminating moved the trial court for a judgment on the pleadings seeking an order from the trial court capping its damages under the termite-service and repair contract to $50,000; (5) on June 26, 2012, Bama Exterminating attended a hearing on its motion to compel inspection of the O’Neals’ house; (6) on June 12, 2012, Bama Exterminating filed a notice to serve a third-party subpoena directed at the O’Neals’ expert; and (7) on April 9, 2012, Bama Exterminating joined in a motion to continue the ease after it had been set for trial.

The facts of this case are distinguishable from those of Zedot Construction, Inc. v. Red Sullivan’s Conditioned Air Services, Inc., 947 So.2d 396 (Ala.2006), as to which the Court in Zedot itself noted:

“Approximately four months passed between the filing of [Red Sullivan’s Conditioned Air Services, Inc.’s (‘CAS’)] complaint and the filing of Zedot’s answer, which raised arbitration as an affirmative defense, and approximately six months passed between the filing of CAS’s complaint and the filing of Ze-dot’s motion to compel arbitration. During that time, no hearings were held and no discovery took place, other than CAS’s service of interrogatories on Ze-dot, which CAS did only after it was put on notice, by Zedot’s answer, of Zedot’s intent to seek arbitration. No trial date has been set.”

947 So.2d at 400. The temporal and other differences between this case and Zedot are enough to require a different result here. As the main opinion notes, “‘[n]o rigid rule exists for determining what constitutes a waiver of the right to arbitrate; the determination as to whether there has been a waiver must, instead, be based on the particular facts of each case.’” 147 So.3d at 408 (quoting ClimaStor IV, L.L.C. v. Marshall Constr., L.L.C., 4 So.3d 452, 455 (Ala.2008), quoting in turn other cases).

At least in the context of the year-and-a-half delay and the other litigation-related activities that occurred during this year and a half, I find noteworthy the motion filed near the end of this period by Bama Exterminating — whether properly deemed a motion for a judgment on the pleadings or a motion for a summary judgment— seeking from the trial court the entry of a judgment relieving it of any liability in excess of $50,000 on the O’Neals’ claims. This motion specifically asked the trial court to assess the viability and applicability of a purported contractual limitation on damages not only in relation to the O’Neals’ breach-of-contract claim, but also in relation to their tort claims of fraudulent suppression, negligence, and wantonness.

“““Whether a party’s participation in an action amounts to an enforceable waiver of its right to arbitrate depends on whether the participation bespeaks of an intention to abandon the right in favor of the judicial process and, if so, whether the opposing party would be prejudiced by a subsequent order requiring it to submit to arbitration.’ ” ’ ”

ClimaStor IV, L.L.C. v. Marshall Constr., L.L.C. 4 So.3d 452, 456 (Ala.2008)(quoting Paw Paw’s Camper City, Inc. v. Hayman, 973 So.2d 344, 347 (Ala.2007), quoting in turn other cases (emphasis added)). Asking a trial court to enter a binding judgment fully or partially relieving the mov-ant of liability with respect to claims pending in that court is not consistent with the intention to reserve the resolution of those claims for an arbitrator.

Finally, the delay involved here and the expenditure of time, effort, and financial resources by the O’Neals in connection with the above-described matters supply the prejudice necessary for a finding of a waiver of a contractual right to arbitrate.

Based on the foregoing, I respectfully dissent.

PARKER, J., concurs.

On Application for Rehearing

BOLIN, Justice.

APPLICATION OVERRULED. NO OPINION.

STUART, PARKER, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

MOORE, C.J., and MURDOCK, J„ dissent.

MOORE, Chief Justice

(dissenting).

I respectfully dissent. The United States Supreme Court has, in my opinion and in the opinion of some Justices on the United States Supreme Court, wrongly bl-terpreted the Federal Arbitration Act (“the FAA”) as preempting § 8-1-41, Ala. Code 1975, which prohibits the specific enforcement of arbitration agreements. Southland Corp. v. Keating, 465 U.S. 1, 15-16, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984). However, even under the preemption doctrine announced in Southland, the FAA does not apply to a contract that is subject to revocation on grounds existing at law or equity.

To be enforceable under the FAA, a clause mandating arbitration “must be part of ... a contract ‘evidencing a transaction involving commerce’ and such clauses may be revoked upon ‘grounds as exist at law or in equity for the revocation of any contract.’ ” Southland, 465 U.S. at 11 (footnote omitted). In the trial court, Bama Exterminating Company, Inc. (“Bama”), alleged in its motion to compel arbitration that its supplies come from Tennessee and Washington state; that its vehicles were manufactured out of state; that its contract with a cellular-telephone service originated out of state; that its banking activities are interstate; and that its products for termite control and home repair cross state lines. These claims apparently sought to overcome the limitation in the FAA to cases involving interstate commerce. Nevertheless, Anthony O’Neal and his wife, Jana O’Neal, the plaintiffs below, have alleged grounds at law and equity for the revocation of the contract: duress and fraud. Under Southland, which held that even a contract contemplating interstate commerce is subject to revocation on grounds existing at law or equity, Southland, 465 U.S. at 11,1 believe the State trial court, on the basis of State law, ought to determine whether the contract was valid at law or equity.

The United States Supreme Court, however, recently held that when parties challenge as invalid, revocable, or unenforceable on the grounds of law or equity a contract containing an arbitration clause, the arbitrator, not a state or federal court, must make that determination. Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 446-49, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006); Preston v. Ferrer, 552 U.S. 346, 359, 128 S.Ct. 978, 169 L.Ed.2d 917 (2008) (“When parties agree to arbitrate all questions arising under a contract, the FAA supersedes state laws lodging primary jurisdiction in another forum, whether judicial or administrative.”). Buckeye and Preston rely on Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), which held that the question of “severability” is not one of state law and, therefore, a state court may not invalidate an arbitration clause on the basis that the whole contract is invalid. I respectfully disagree. If a contract is invalid for reasons of fraud or duress, then the provisions within it, including the arbitration clause, are no longer valid. By forcing a contract challenge at law or equity to go before an arbitrator rather than the state court, the United States Supreme Court has invented law never contemplated by the FAA. The United States Supreme Court has no constitutional authority to exercise legislative powers by creating laws and regulating commerce. Nor does it have a right to hold, against our state constitution, that our courts may not be open to litigants who have suffered an injury. Art. I, § 13, Ala. Const.1901. The O’Neals challenge the entire contract, including the arbitration clause. The arbitration clause and the contract as a whole are so inextricably tied in this case that a challenge to one is a challenge to the other, and the State court should determine the merits of the fraud and duress claims before the case may be sent to the arbitrator.

I agree with Justice Clarence Thomas, who has stood up to the broad exercise of federal power under the FAA by refusing to hold that the FAA applies to state courts. Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 285-97, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995) (Thomas, J., dissenting); Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 689, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996) (Thomas, J., dissenting); Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 460, 123 S.Ct. 2402, 156 L.Ed.2d 414 (2003) (Thomas, J., dissenting); Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 449, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006) (Thomas, J., dissenting); and Preston v. Ferrer, 552 U.S. 346, 363, 128 S.Ct. 978, 169 L.Ed.2d 917 (2008) (Thomas, J., dissenting). Even if the FAA were deemed to preempt § 8-1-41, however, the trial court, before ordering arbitration, ought to determine whether a valid defense at law or in equity exists with regard to revocation of this contract. Only if the trial court found there to be no valid defense would the case then go to an arbitrator.

      . Bama Exterminating never responded to the O’Neals' discovery requests.

      . The O'Neals do not dispute that a "contract calling for arbitration" exists and that that contract "evidences a transaction affecting interstate commerce.” See Elizabeth Homes, L.L.C. v. Gantt, 882 So.2d 313, 315 (Ala.2003).

      . The parties first discussed settlement and mediation on July 6, 2011, and further discussed those topics on numerous occasions from August 22, 2011, through November 22, 2011.

      . As noted above, the trial court on April 4, 2012, set the case for trial on June 5, 2012, and five days later, on April 9, 2012, the parties filed their joint motion to continue. The mediation, which was unsuccessful, took place on June 6, 2012.

      . In connection with Bama Exterminating’s motion seeking a judgment in its favor as to any amount in excess of $50,000, I recognize that cases such as Conseco Fin. Corp.-Alabama v. Salter, 846 So.2d 1077, 1081 (Ala.2002), stand for the proposition that “the mere filing of a pleading does not constitute a waiver of the right to compel arbitration.” A motion for judgment on the pleadings, however, is not itself a "pleading.” See Kaller v. Rigdon, 480 So.2d 536, 538 (Ala.1985) ("A motion, defined in Rule 7(b), [Ala. R. Civ. P.], as ‘an application to the court for an order,’ is not a pleading.”); Rule 7, Ala R. Civ. P. (distinguishing between pleadings and motions).

      . The facts of this case also can be contrasted with those of cases such as Conseco Finance Corp.-Alabama v. Salter, 846 So.2d 1077 (Ala. 2002), and the case it primarily relied upon, First Family Financial Services, Inc. v. Jackson, 786 So.2d 1121 (Ala.2000). The facts in both cases were described as follows by the Court in Salter:

      "The First Family Court [stated]:
      " ‘The record in this case shows unequivocally that First Family did not substantially invoke the litigation process before it moved to compel arbitration. The first document First Family filed was its motion to compel arbitration. Like the defendant in [Ex parte] Merrill Lynch[, Pierce, Fenner & Smith, Inc., 494 So.2d 1 (Ala.1986)], First Family did not even answer the complaint. The only other documents in the record that First Family filed are its brief in support of its motion to compel arbitration, evidentiary filings also in support of that motion, and its notice of appeal to this Court. Jackson had the heavy burden of proving both that First Family had substantially invoked the litigation process and that he was prejudiced thereby. He did not meet that burden.'
      "786 So.2d at 1128 (citations omitted).
      "In this case[, i.e., Salter,] as in First Family, the record reflects that Conseco did not ‘bespeak an intention to abandon the right [of arbitration] in favor of the judicial process.' Id. at 1128. Conseco initiated this action; however, the mere filing of a pleading does not constitute a waiver of the right to compel arbitration. See, e.g., Ex parte Smith, 736 So.2d 604 (Ala.1999). Additionally, as evidenced by the express language of the arbitration provision, the parties specifically agreed that Conseco retained the right to seek judicial relief 'to enforce a security agreement relating to the manufactured home secured in a transaction underlying this arbitration agreement, to enforce the monetary obligation secured by the manufactured home or to foreclose on the manufactured home,' and that the filing of such an action would not constitute a waiver of Conseco’s right to seek arbitration. The relief requested by Conseco in its complaint falls within the parameters of the judicial relief specifically agreed to by Salter.”
      846 So.2d at 1081.
      In addition to the differences with the present case discernible from the foregoing descriptions, there is no indication that either Salter or First Family involved a delay approaching one and one-half years in duration between the time of the filing of the applicable claims and the pursuit in earnest of a motion to compel arbitration. In Salter, the delay was only two months.