author: MAXWELL, J„ for the Court:

text:
    Wyman BRADLEY and Gloria Jerone Bradley, Appellants v. KELLEY BROTHERS CONTRACTORS, INC., Gregory Revette and Clyde Revette, Appellees.
    No. 2011-CA-00776-COA.
    Court of Appeals of Mississippi.
    June 11, 2013.

      Clarence McDonald Leland, Jackson, attorney for appellants.
    Charles W. Wright Jr., Meridian, J. Richard Barry, L. Brooks Hooper, Robert Thomas Bailey, Meridian, attorneys for ap-pellees.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J„ for the Court:

¶ 1. Wyman and Gloria Bradley’s claims against Kelley Brothers Contractors, Inc., Gregory Revette, and Clyde Revette for civil conspiracy, unjust enrichment, and intentional misrepresentation involve allegations of self-dealing over a county-approved, but federally reimbursed, hurricane-debris removal and disposal contract between Wayne County and Kelley Brothers. While differing somewhat, all three claims are based on allegations that Wayne County Supervisor Clyde Revette schemed with his son-in-law Jerry Kelley’s company, Kelley Brothers, and his son, Gregory, to profit from the county debris-removal contract by not paying the Brad-leys for providing a dumpsite.

¶ 2. The circuit court relied on language from a specific provision in the contract between Wayne County and Kelley Brothers to find the Bradleys’ claims of unjust enrichment and civil conspiracy against Kelley Brothers and Gregory failed as a matter of law. But the record contains another version of the debris removal and disposal contract — the version Clyde produced during discovery and represented to be the governing contract between Wayne County and Kelley Brothers. And quite interestingly, this second version, while identical in all other respects, differs materially in the specific provision on which the circuit court relied in granting summary judgment. Because the conflicting contracts throw a material fact issue into dispute — which entity (the county or Kelley Brothers) was actually responsible for negotiating with the Bradleys to dump debris on their property — we must reverse the grant of summary judgment to Kelley Brothers and Gregory.

¶ 3. We also find Clyde was not entitled to a judgment as a matter of law. Relying on Clyde’s status as a member of the Wayne County Board of Supervisors (the Board), the circuit court applied the Mississippi Tort Claims Act (MTCA) and its requirement of pre-suit notice to the Brad-leys’ claims of civil conspiracy and intentional misrepresentation against Clyde. But the Bradleys’ claims are based on alleged actions outside of the scope of Clyde’s employment with Wayne County, making the MTCA inapplicable. Since the Bradleys were not required to provide pre-suit notice, we also reverse the grant of summary judgment to Clyde. We remand this case to the circuit court.

Background

A. Contract to Remove and Dispose of Debris

¶ 4. After devastating the Mississippi Gulf Coast in late August 2005, Hurricane Katrina moved inland, leaving the roads in Wayne County clogged with storm debris. On September 12, 2005, the Board approved a contract to pay Kelley Brothers $18 per cubic yard to remove and dispose of the debris.

¶ 5. Clyde, who served as a member of the Board, joined in the unanimous vote to approve the county’s debris removal and disposal contract with Kelley Brothers. And Clyde’s son-in-law, Jerry, signed the contract in his capacity as president of Kelley Brothers. According to the parties, this contract was funded and overseen by the Federal Emergency Management Agency (FEMA).

¶ 6. Under section 2.1 of the contract recorded in the county’s minute books, Kelley Brothers was to “provide for debris removal and disposal of all eligible debris” from the county’s right-of-ways. And Kelley Brothers was also required to provide the dumpsites. Section 2.2 specified that “[t]he debris [was to] be taken to contractor provided dumpsites.” (Emphasis added). The first and last pages of the recorded contract are attached to this opinion as “Appendix A.”

¶7. The same day the Board approved the Kelley Brothers contract, Clyde approached Wyman about the county possibly dumping debris on the Bradleys’ property. In the past, the Bradleys had permitted Wayne County to dump various other debris in their low-lying land, in an effort to eventually convert their wetlands into developable property. So it was not unusual when Wyman’s local supervisor asked him if the county could also dump Katrina debris on their property.

¶ 8. But on this occasion, Wyman allegedly asked Clyde if he and Gloria would be compensated, since he had recently heard that FEMA money might be available for the hurricane-debris disposal. And Clyde purportedly told him that, though the county was receiving FEMA money to remove debris from the roads, it was not receiving federal funding to dispose of the debris — so there was no money available for providing a dumpsite. However, Clyde did tell Wyman the county could come back and fill the debris with dirt, raising the elevation of his property. Clyde also alluded to possible money down the road for providing the dumpsite, but made no mention of the county’s contract with his son-in-law’s company, Kelley Brothers. According to Wyman, because Clyde told him the county was not receiving FEMA aid to dispose of the debris, nor paying anyone to dump it, he allowed the Katrina debris to be dumped on his property free of charge, save elevating the low-lying areas.

¶ 9. The Bradleys claim that over the next year, Kelley Brothers and its subcontractor, Gregory, dumped more than 800,-000 cubic yards of debris on their property, receiving $18 per cubic yard. And at some point, Kelley Brothers and Gregory paid Clyde $3 per cubic yard to haul and dispose of debris and $54,000 for allowing Gregory to borrow his truck. When finished, Kelley Brothers filled in dirt to the admitted betterment of the Bradleys’ property, but the Bradleys received no other compensation for providing a dump-site.

B. The Bradleys’Lawsuit

¶ 10. When the Bradleys discovered that their county supervisor, Clyde, and his relatives had profited from dumping debris on their property, they filed a Freedom of Information Act (FOIA) request to obtain a copy of the Wayne County / Kelley Brothers contract. But what they received in response was not the contract recorded in county’s minute book. Instead, they were given a version of the contract identical to the recorded contract, with one lone exception — section 2.2 differed.

¶ 11. Section 2.2 of the recorded contract required that “[t]he debris [was to] be taken to contractor provided dump-sites.” But section 2.2 of the version disclosed by the county in response to the Bradleys’ FOIA request stated that “[t]he debris shall be taken to an approved dumpsite indicated on the attached maps. All necessary permits shall be obtained by the County.” The first and last pages of the unrecorded contract are attached to this opinion as “Appendix B.”

¶ 12. On September 11, 2008, the Brad-leys sued Kelley Brothers, Gregory, and Clyde in the Wayne County Circuit Court. They alleged Clyde falsely and fraudulently represented there was no FEMA money to pay to dispose of the debris, when in fact the county had used FEMA money to pay Kelley Brothers to dump debris on the Bradleys’ property. The Bradleys further alleged Kelley Brothers and its subcontractor, Gregory, were unjustly enriched by dumping hundreds of thousands of cubic yards of debris on the their land free of charge.

¶ IB. The Bradleys’ final claim is based on Mississippi’s constitutional and statutory prohibitions against public officers, such as members of a county board of supervisors, like Clyde, being interested in a contract authorized by the political board on which he or she serves. Specifically, the Bradleys alleged Clyde, his son Gregory, and his son-in-law Jerry’s company conspired to “cheat” the Bradleys out of compensation for providing a dumpsite, which permitted Kelley Brothers and Gregory to make more money under the contract and Clyde to illegally profit from the county contract through performing work as a subcontractor and “leasing” his truck to his son for $54,000.

¶ 14. The Bradleys sought $1.6 million in actual damages — or $2 per cubic yard of debris dumped on their property — plus $4.8 million in punitive damages. They attached to their complaint the unrecorded contract the county provided in response to their FOIA request. See Appendix B.

C. Summary Judgment

¶ 15. In July 2010, Clyde filed a motion for summary judgment. He argued that, because he was a county employee at the time he approached Wyman about the dumpsite, the MTCA applied — in particular the pre-suit notice requirement of Mississippi Code Annotated section 11-46-11(1) (Rev.2012). Because no pre-suit notice was given, Clyde insisted he was entitled to dismissal as a matter of law.

¶ 16. In January 2011, Clyde responded to the Bradleys’ discovery requests. In his response to their request for production of documents, he produced the recorded contract, which he represented was the “Wayne County / FEMA contract with Kelley Brothers Contractors, Inc.,” as well as the “minutes of the Wayne County Board meeting approving acceptance of [the] contract.”

¶ 17. In February 2011, while Clyde’s motion was still pending, Kelley Brothers and Gregory also filed a motion for summary judgment. But they relied on section 2.2 of the unrecorded contract attached to the complaint, claiming the contract gave them no choice where to haul the debris. Citing this lack of choice, Kelley Brothers and Gregory maintained they were contractually bound to dump the debris in a county-approved dumpsite, which happened to be the Bradleys’ property. They argued that, because they never promised to pay the Bradleys anything, they could not have been unjustly enriched. They also argued the Bradleys’ conspiracy claim lacked proof of an agreement to accomplish an unlawful purpose or a lawful purpose unlawfully.

¶ 18. The Bradleys responded to Kelley Brothers and Gregory’s motion, arguing there were disputed issues of material fact. In their response, the Bradleys specified they were relying on Clyde’s discovery responses to their request for production of documents. They simultaneously filed these responses with their reply, making the recorded contract part of the record.

¶ 19. On May 4, 2011, the circuit court entered orders on both motions for summary judgment. In one, the court relied exclusively on section 2.2 of the unrecorded contract to grant summary judgment in Kelley Brothers and Gregory’s favor, citing a lack of evidence of unjust enrichment and civil conspiracy. In the other, the circuit court granted summary judgment in Clyde’s favor based on the Bradleys’ failure to file pre-suit notice under the MTCA.

¶ 20. The Bradleys timely appealed.

Discussion

¶ 21. Appellate courts review grants of summary judgment de novo, employing the same standard as the trial court. Titan Indem. Co. v. Estes, 825 So.2d 651, 654 (¶ 11) (Miss.2002). We look at “all eviden-tiary matters” in the record to see if there is any genuine issue of material fact and if the movant is entitled to a judgment as a matter of law. Id.; see also Aikens v. Whites, 8 So.3d 139, 140 (¶ 9) (Miss.2008); M.R.C.P. 56(c). In conducting this review, we give the nonmoving party — in this case the Bradleys — the benefit of any doubt about whether a fact issue exists. Simmons v. Thompson Mach. of Miss., Inc., 631 So.2d 798, 802 (Miss.1994) (citing Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983)).

I. Genuine Issue of Material Fact

¶ 22. Looking at all record evidence before us, we find that, based on the recorded contract, Kelley Brothers and Gregory failed to meet their burden to show there is no genuine issue of material fact. See Roebuck v. McDade, 760 So.2d 12, 14 (¶ 9) (Miss.Ct.App.1999) (citations omitted) (holding that the moving party has “[tjhe burden of showing no genuine issue of material fact exists”).

A. Genuine Issue

¶ 23. We find the discrepancy between section 2.2 of the recorded contract and section 2.2 of the unrecorded contract creates a factual dispute. The particular dispute raised by the contradictory but like-numbered contractual provisions is whether Kelley Brothers was the entity actually responsible for securing the Brad-leys’ property as a dumpsite and negotiating compensation or if Kelley Brothers indeed had “no choice” and was merely dumping debris where it was told by the county.

¶ 24. As to the effect of the different contracts, Kelley Brothers and Gregory first argue the unrecorded contract controls because it was the contract Kelley Brothers signed and operated under. While this indeed may be so, we note that the recorded version of the contract also contains the purported signature of Kelley Brother’s president, Jerry, though it appears to be photocopied. And the contract upon which Kelley Brothers relies was apparently not the version attached to the Board’s minutes, bearing the page-number stamp, indicating it was recorded in the minute book. See Mound Bayou Sch. Dist. v. Cleveland, Sch. Dist., 817 So.2d 578, 582 (¶ 12) (Miss.2002) (citing Nichols v. Patterson, 678 So.2d 673, 676 (Miss.1996)) (holding “public bodies may not be bound by contracts without evidence of the contract terms in the minutes”). Still, though our curiosity is piqued by the questions surrounding the two contracts, we are not the fact-finder. And the task before us is not to decide which contract was the “real contract” since summary-judgment motions “may not be used to determine or decide issues of fact.” Am. Legion Ladnier Post No. 42 v. City of Ocean Springs, 562 So.2d 103, 106 (Miss.1990) (citing Brown, 444 So.2d at 362). Rather, the purpose for these dispositive motions and the sole focus of our de novo review here is “to decide whether there are any material fact issues to be tried.” Id.; see also Smith v. Waggoners Trucking Corp., 69 So.3d 773, 777 (¶ 15) (Miss.Ct.App.2011) (“The purpose of summary judgment is to determine whether a triable issue exists,” not to resolve it.). While we cannot and do not resolve the issue over the discrepancies between the two contracts or sign off on the veracity of the Bradleys’ claims, we do find that the dispute over which version of the contract was the governing version is a triable issue.

¶ 25. Kelley Brothers and Gregory alternatively argue that the recorded contract is not within the scope of our de novo review. As they see it, because the circuit court relied on section 2.2 of the unrecorded contract, we too must limit our review to the unrecorded contract. In support they rely on Mitchell v. Nelson, 830 So.2d 635, 640 (¶ 14) (Miss.2002), which involved the different procedural mechanism of a motion for reconsideration under Mississippi Rule of Civil Procedure 60(b). Mitchell, 830 So.2d at 638 (¶ 6). In Mitchell, it was only after summary judgment was granted that the plaintiffs sought to introduce through a Rule 60(b) motion an affidavit they claimed created a genuine issue of material fact. Mitchell, 830 So.2d at 640 (¶ 14). On appeal, the supreme court rejected their argument that the later-filed affidavit made summary judgment improper, noting that appellate courts “should only review orders granting summary judgment by examining the evidence before the trial court and not consider new evidence.” Id. But here, unlike Mitchell, we are not confronted with new evidence introduced through a post-judgment motion. Clyde had already produced the recorded contract during discovery as well as the Board’s minutes “approving the acceptance of [the] contract.” And the recorded contract was made part of the trial record before the circuit court ruled — when the Bradleys responded to Kelley Brothers and Gregory’s motion for summary judgment by citing their reliance on Clyde’s discovery responses and by filing those responses, which included the recorded contract, with the court.

¶ 26. Further, the fact the Bradleys attached the unrecorded contract to their complaint does not limit our consideration of the recorded contract. Rule 56 directs us to consider not only the pleading but also evidence produced in discovery. M.R.C.P. 56(c). And our supreme court instructs that we look to “all evidentiary matters in the record” when reviewing grants or denials of summary judgment. Harrison v. Chandler-Sampson Ins., Inc., 891 So.2d 224, 228 (¶ 11) (Miss.2005). Understandably, the Bradleys attached the unrecorded contract to their complaint because it was the version Wayne County’s attorney gave them. Though reasonable explanations perhaps exist, it is unclear at present why Wayne County did not respond to the Bradleys’ FOIA request by providing a copy of the contract recorded in its minute book. But what is clear is that the recorded contract is part of the record and, thus, must be considered in our de novo review.

B. Material Fact

¶27. To survive summary judgment, it is not enough that disputed facts exist — such facts must also be material. Citifinancial Retail Servs. v. Hooks, 922 So.2d 775, 779 (¶ 18) (Miss.2006). A “material fact” is “one that matters in an outcome determinative sense[.]” Id. (quoting Simmons, 631 So.2d at 801). Here, the outcome of Kelley Brothers and Gregory’s motion for summary judgment — that the Bradleys’ claims of unjust enrichment and civil conspiracy failed — was determined based on the language of section 2.2 of the unrecorded contract. So a dispute over what section 2.2 actually provided is material to both of these claims.

1. Unjust Enrichment

¶ 28. “Unjust enrichment” is a “modern designation for the doctrine of ‘quasi-contracts.’ ” Magnolia Fed. Sav. & Loan Ass’n v. Randal Craft Realty Co., 342 So.2d 1308, 1311 (Miss.1977). “[T]he basis for an action for ‘unjust enrichment’ lies in a promise, which is implied in law, that one will pay to the person entitled thereto which in equity and good conscience is his.” Id. This restitution-based remedy “applies in situations where no legal contract exists, and the person charged is in possession of money or property which, in good conscience and justice, he or she should not be permitted to retain, causing him or her to remit what was received.” Willis v. Rehab Solutions, PLLC, 82 So.3d 583, 588 (¶ 14) (Miss.2012).

¶ 29. Though we do not know which version of the contract controlled, we do know that section 2.2 of the recorded version required that “[t]he debris shall be taken to contractor provided dump-sites.” Appendix A (emphasis added). As the first paragraph of the contract explains, the word “contractor” as it is used in the agreement refers to Kelley Brothers. So if Kelley Brothers, not Wayne County, was the party responsible for gaining permission to dump debris on the Bradleys’ property, and Kelley Brothers was indeed compensated millions of dollars for dumping hundreds of thousands of cubic yards of debris on the Bradley’s property, a jury could potentially find there was an implied promise to, in turn, compensate the Bradleys. And because Gregory, as a subcontractor, was also enriched under the debris-removal contract, there is at least a fact issue over whether it was unjust that a portion of his compensation did not go to the Bradleys.

¶ 30. We also note Wyman’s deposition testimony that, if the county was not paying anyone for a dumpsite, the Bradleys agreed not to be compensated beyond improving the elevation of their property. But if there was FEMA money for a dumpsite, the Bradleys understood they would receive a portion of it. Viewing all of this evidence in the light most favorable to the Bradleys — including the recorded contract and the alleged intentional misrepresentation by Clyde—-we find fact issues exist precluding summary judgment on the Bradleys’ unjust enrichment claim.

2. Conspiracy

¶ 81. The circuit court also dismissed the conspiracy claim, relying heavily on the unrecorded contract. “A conspiracy is an agreement between two or more persons for the purpose of accomplishing an unlawful purpose or a lawful purpose unlawfully.” Braddock Law Firm, PLLC v. Becnel, 949 So.2d 38, 44 (¶ 20) (Miss.Ct.App.2006) (citing Gallagher Bassett Servs., Inc. v. Jeffcoat, 887 So.2d 777, 786 (¶ 37) (Miss.2004)). “Where damages arise as a result, there may be a right of recovery for civil conspiracy.” Id.

¶ 32. To establish a civil conspiracy, the plaintiff must prove (1) an agreement between two or more persons, (2) to accomplish an unlawful purpose or a lawful purpose unlawfully, (3) an overt act in furtherance of the conspiracy, (4) and damages to the plaintiff as a proximate result. Gallagher Bassett Servs., 887 So.2d at 786 (¶ 37); Taylor v. S. Farm Bureau Cas. Co., 954 So.2d 1045, 1050 (¶ 14) (Miss.Ct.App.2007); see also 16 Am.Jur.2d Conspiracy § 51 (2009). These elements are quite similar to those required of a criminal conspiracy, with the distinguishing factor being that an “agreement is the essence of a criminal conspiracy,” while “damages are the essence of a civil conspiracy.” 15A C.J.S. Conspiracy § 7 (2012).

¶ 33. Still, an agreement between the parties must be established. But it need not extend to all details of the scheme and may be express, implied, or based on evidence of a course of conduct. 16 Am.Jur.2d Conspiracy § 51. For a civil conspiracy to arise, the alleged confederates must be aware of the fraud or wrongful conduct at the beginning of the agreement. Id. And even if there is a clear agreement on the front end, “[a] conspiracy standing alone, without the commission of acts causing damage is not actionable.” 15A C.J.S. Conspiracy § 7.

¶ 34. Here, the Bradleys allege that Clyde, Gregory, and Kelley Brothers devised a plan for Clyde to illegally profit from a county contract authorized by the political body on which Clyde served and for Kelley Brothers and Gregory to profit additionally from the contract by not having to pay to secure a dumpsite to dispose of the debris. As part of the alleged conspiracy, Gregory would pass on some of the resulting increased profits to Clyde by hiring him as a subcontractor and leasing Clyde’s truck to haul debris, even though Mississippi law prohibited Clyde from profiting under the contract.

¶ 35. In furtherance of the conspiracy, Clyde purportedly approached Wyman to secure a dumpsite by intentionally misrepresenting to Wyman that he was acting on the county’s behalf and that compensation was not available for debris disposal, when Clyde was instead acting in his own individual interest and that of Kelley Brothers and Gregory, to enable each to additionally profit under the contract by not having to pay the Bradleys to use their property as a dumpsite. The Bradleys allege that through these acts they suffered damages—specifically, not being compensated for use of their land.

¶ 36. The circuit court acknowledged potentially unlawful actions — noting that Clyde admitted he profited under the contract with Kelley Brothers, a contract approved by the political body on which he served. But the court found the Bradleys could not show any implicit agreement between Kelley Brothers, Gregory, and Clyde that proximately caused the Brad-leys damages.

¶ 37. According to the circuit court, because section 2.2 of the contract required the county to provide the dumpsite, Kelley Brothers and Gregory had no choice but to dump the debris where Wayne County directed. But again, we point out that the conflicting recorded version of section 2.2 required Kelley Brothers, not the county, to provide the dumpsite. Viewing this evidence in the light most favorable to the Bradleys, the recorded version of the contract, at a minimum, clashes with the circuit court’s conclusion that Kelley Brothers and Gregory “had no choice where to dump the debris.” The recorded contract also, when viewed in the Bradleys’ favor, contradicts the circuit court’s finding that “any money paid to the debris site chosen by Wayne County would have no bearing on” Kelley Brothers and Gregory.

¶ 38. With that said, we note that our review is hindered somewhat because neither party requested the April 18, 2011 summary-judgment hearing be transcribed. So we are left without any record of whether the discrepancy between section 2.2 of the recorded and unrecorded contracts was addressed by the circuit judge or even brought to his attention at the hearing. Without a transcript, we simply do not know.

¶39. However, this court is instructed to view motions for summary judgment “with a skeptical eye” and in close cases to “err on the side of denying the motion.” Slade v. New Horizon Ministries, Inc., 785 So.2d 1077, 1079 (¶7) (Miss.Ct.App.2001) (citing Ratliff v. Ratliff, 500 So.2d 981, 981 (Miss.1986)). Because of the uncertainties surrounding the controlling contract, we must adhere to these notions and find a material fact issue was decided by the court when it found that Kelley Brothers and Gregory had “no choice” in the matter and no financial interest in Clyde’s negotiation with Wyman over a dumpsite, when arguably they did under the recorded contract. Considering the conflicting contracts, Wyman’s testimony about Clyde’s misrepresentations that led to the Bradleys’ providing a free dump-site, and the fact that Kelley Brothers and Gregory passed some of their profits to Clyde on a contract he voted to approve— profits the Bradleys allege should have instead gone to them — we find fact issues exist on the conspiracy claim. Therefore, we reverse the summary judgment that was granted in Kelley Brothers and Gregory’s favor.

II. Notice Under the MTCA

¶ 40. We also reverse summary judgment granted in Clyde’s favor, which was solely based on the Bradleys’ noncompliance with the MTCA’s pre-suit notice provision. The circuit court found it could not “distinguish Clyde’s actions [toward Wy-man] as individual actions, but rather must view his actions as those which flow from his role as a Supervisor of Wayne County.” Because “at the time Clyde ... approached the [Bradleys] about dumping on their land, he was a member of the [B]oard of [Supervisors of Wayne County,” the circuit court found pre-suit notice was required.

¶ 41. But the Mississippi Supreme Court has held a government employee’s actions are distinguishable as individual actions when they are outside the scope of his employment. McGehee v. DePoyster, 708 So.2d 77, 80 (¶ 10) (Miss.1998). In McGehee, the supreme court made clear the fact a defendant was a government employee at the time he committed the alleged tortious acts does not in itself mandate notice. “[G]overnmental employment, standing alone, does not trigger the notice provision of the [MTCA].” Id. (quoting Bienz v. Bloom, 674 N.E.2d 998, 1004 (Ind.Ct.App.1996)). If “a government employee [is] sued in his individual capacity for actions not within his scope of employment,” then section 11-46-1 l(l)’s notice provision does not apply. McGehee, 708 So.2d at 78 (¶ 1). But see Holmes v. Defer, 722 So.2d 624, 625 (¶ 9) (Miss.1998) (overruled on other grounds) (holding a suit against a sheriff in his individual capacity was subject to section 11^46-ll(l)’s notice requirements because the sheriff “was acting in his official capacity”).

¶ 42. Mississippi Code Annotated section 11-46-5(2) (Rev.2012) expressly provides that a government “employee shall not be considered as acting within the course and scope of his employment ... if the employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense other than traffic violations.” Similarly, Mississippi Code Annotated section 11-46-7(2) (Rev.2012) excludes fraudulent, malicious, defamatory, and (non-traffic) criminal conduct from the scope of employment.

¶ 43. We find the circuit court erred when it found all of Clyde’s actions that “flowed from” his role as county supervisor fall under the MTCA. Instead, the court should have looked to section 11-46-5(2) to determine if the Bradleys’ allegations were based on conduct within Clyde’s scope of employment with the county. See McGehee, 708 So.2d at 81 (¶ 11) (holding that because the plaintiff alleged defamation, an act excluded from sections 11-46-5(2) and 11-46-7(2), the plaintiff did not have to provide the public employee pre-suit notice).

¶ 44. The Bradleys alleged Clyde was acting on behalf of Kelley Brothers, not Wayne County, when he approached Wy-man. And they alleged Clyde’s actions constituted fraud — both individually and in concert with Gregory and Kelley Brothers — and malice. And a government employee shall not be considered as acting within the scope and course of his employment for conduct amounting to fraud and malice. See Miss.Code Ann. § 11-46-5(2); cf. Roderick v. City of Gulfport, Miss., 144 F.Supp.2d 622, 638 (S.D.Miss.2000) (finding plaintiffs allegations against public employee included malice, which fell outside the public employee’s scope of employment under section 11-46-7(2)).

¶ 45. Because the Bradleys’ claims of intentional misrepresentation and civil conspiracy are based on alleged conduct outside the scope of Clyde’s employment with the county, the MTCA’s notice requirement does not apply. Thus, the Bradleys’ “failure” to provide pre-suit notice under the MTCA could not form a basis to grant Clyde summary judgment.

¶ 46. THE JUDGMENT OF THE WAYNE COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPEL-LEES.

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

Appendix A

STATE i_, MISSISSIPPI

°S83

COUNTY OF WAYNE

CONTRACT FOR DEBRIS REMOVAL RELATED TO HURRICANE KATRINA IN WAYNE COUNTY, MISSISSIPPI

THIS AGREEMENT made September 12, 2005 between the Board of Supervisors of Wayne County, Mississippi acting for and on behalf of Wayne County, Mississippi, Wayne County Courthouse, Waynesboro, Mississippi 39367, retened to as the 'County* and Kelley Brothers Contractors, Inc., P. 0. Drawer 1079, Waynesboro. Mississippi 39367, referred to as the •Contractor’.

1.0 GENERAL

The purpose of this contract Is It* remove and dispose or ail eligible debris from Wayne County, Mississippi Rlghts-of-Way (ROW) and applicant owned property within Wayne County, Mississippi. The aroa to be Included as part of this contract Is located within the Wayne County, Mississippi. Including the City of Woynesboro, Mississippi.

2.0 SERVICES.

2.1 The Contractor shall provide tor debris removal and disposal of a8 eligible debris from Wayne County, Mississippi’s ROW and applicant owned property.

2.2 The debris shall be taken to contractor provided dumpsites.

2.3 The estimated amount of debris to be removed under this contract Is not guaranteed. The unit price of $16.00 per cubic yard will be used lor payment.

2.4 The Contractor shall document the current conditions of all roadways, sidewalks and all structures to remain In the debris removal area, tn addition, all roadways along the haul routes shall be documented. A representative of Ihe County shall be present during this Inspection.

2.5 Haul and Dispose. The work shall consist of clearing, separating, and removing Bnyand all eligible debris (see definitions of eligible debris) from public property only, Including ROW of strocta and roads. Work shall Include: 1) examining and sorting debris to determine whether or not debris is eligible end to doterminc whether eligible debris is burnable or non-bumable (or other categories specific lo the project site); 2) loading and sorting the debris; 3} hauling the eligible debris Id an approved dumpsites; 4) provide adequate equipment at the approved dumpslte to prevent tho debris from piling up and obstructing the unloading; 5) provide final reduction of debris acceptable and approved by Mississippi Departmenl of Environmental Quality (DEQ), to Include burning, chipping, burying or left in place, whichever may be approved by DEQ. Ineligible debris shall not be loaded, hauled, or dumped under this contract. The Contractor Is liable tor all ineligible debris handled during the life of this contracl. The County's representative shall be immediately notified of any Ineligible debris placed at the right of way for collection.

Clyde Revello 10

V&3

19.0 ACCEPTANCE OF CONTRACT

The Codirector shaft provide all the documentation required es per SECTION INSURANCE of this contract within the specified tíme llmll, and providing a list of all Subcontracts and Proof of Insurance of aft Sub-Contractors being used under this contract.

The Contractor shall provide Wayne County, Mississippi Board of Supervisors the required insurance certificate^) with a clause that shows Indemnity and Hold Harmless tram injuries, damages, or tosses caused by the negligent actions of the Contractor or Its Employees to Wayne County, Mississippi Board of Supervisors.

The Contractor shall provide proof of Workman's Compensation as required by the Stale ot Mississippi.

As agreed upon by the Wayne County, Mississippi Board of Supervisors end Kelley Brothers Contractors, Inc., local sub-conUactors and individuals will be used, to the extent •possible, during Ihls debris removal project.

The Contractor agrees to complete ihe work in a professional, workmanlike manner and within the scope of work guidelines sel forth above based on Ihe unit pricing submitted by Ihe contractor.

IN WITNESS WHEREOF, the parlies have agreed to the above requirements and have entered into the above contract this day of Seplember, 20G5.

WAYNE COUNTY BOARD OF SUPERVISORS KELLEY BROTHERS, INC.

9

Clyde Revetfe 27

Appendix B

STATE OP MISSISSIPPI

COUNTY OF WAYNE

CONTRACT FOR DgiRIS REMOVAL RELATED TO HURRICANE KATRINA IN WAYNE COUNTY, MISSISSIPPI

¡THIS AGREEMENT made September; 12,2Q05 between the'Board of Supervisors of Wayne Couhty, Mississippi acting for and ón behalf of Wayna County, Mississippi, Wayne County Courthouse, Waynesboro, Mississippi 33367. referred to as the "County" and Kelley Brothers Contractors, Ins., P. Q. Drawer 1079, Wáynetboro Mississippi 39367, referred to as the-"Contractor"-,

1.0 GENERAL.

The purpose of title contract Is to remove and dispose of ell eligible debrid from Wayne County, Mississippi Rlghls-ot-Way (ROW) and applicant owned property within Wayne County, Mississippi. The area to be included as part of this contract is lopaled within the Wayne County, Mississippi, Including the City bf Wavnesbord, MIssIssIpdi.

2.0 SERVICES,

2.1 ¡The Contractor- shall provide for debris removal and-rfltoosal-of all eliataid /Wayne County, Mississippi's ROW áhB applioint owned property.

2.2 The debris shall be taken to an approysd dumpstta indicated-on the attached maps. All necessary permitís shall be obtained By (he County,

2.3 The estimated amount of debflsto 6e removed under this contract is not guaranteed. Che unit price of $18.00per cubic yard will be used for payment.

2.4 The Contractor shall' document the current bondltlone ot alt roadways, sidewalks and all structures (ó remain.In (ha debris removajairea. In addijlon, ill roadways;alang theftaul routes'shall be documented. A representativa of the Cdunty shall be present during this inspection.

2.5Haul add Dispose. Tha work phall cortsial of clearing, separating, and removing any and all eligible dr.bris.(see definitions bf eliglble'debrts) frompubllc property only. Including ROW bf streets and'roads. Work shaft include: 1} examining and soriing'rdebris to determine whether ór nol debits Is eligible and to determine whether eligible debris is burnable ar nan-burnable (brother Categories specific to the project sile);'2) loading end sorting tha debris; 3) hauling ihe eligible debris to an approved dumpsiiejpf) provide adequate equipment at the approved dump'slte lb prevent the debris from piling up and obstructing the uploading; 5) provide final reduction ot debris acceptable end approved by Mississippi Department or Environmental Quality (DEQJ, to include burning, chipping, burying bf toft in place, whichever may be approved by DEQ.'.Ineligible debris shall not be loaded.-hauled, or dumped under this contract. .The Contractor is liable for all Ineljpihle . debrismandled durino4ha.lif»o(Jhl<kriontraól. TheCoiintyto representative shall be' Immediately notified of any ineligible debris placed at the light of way to^oilection^^^ r~sr

*8.0 ACSEPTAWee OF CONTRACT

Tim Contractor shall provids all ths documeniaiton required as per SECTION INSURANCE of this contract within the specified ttms limit, and providing 0 list of all Subcontracts and Proof of Insurance of all Subcontractors balng uead under this contract.

The Contractor shall provide Wayne County, Mississippi Board of Supervisors the required Insurance cerífica te(s) with a clausa (hat shows Indemnity end Hold Harmless from Injurias, damages, or losses caused by the negligent actions of the Contractor or Its Employees to Wayne County, Mississippi Board of Supervisare.

The Contractor shall provide proof of Workman's Compensation as required by the State

As agreed upon by the Wayne County, Mississippi Board of Supervisors and Kelley Brothers Contractors, Inc., local subcontractors and individuals will be used, to tha extant ■psalble, during this debris removal pronta. ¡

The Contractor agrees to complete the work In a professional, workmanlike manner and within thB 'scope of work guidelines set forth above based on the unit pricing submitted by the contractor.

IN WITNESS WHEREOF, tha partiere have agreed to the above requirements end heve entered into the shove contract this _1£®. day of September, 2006.

WAYNE COUNTY BOARD OF SUPERVISORS KELLEY BROTHERS, INC.

      . No maps are attached to the unrecorded contract that is part of the record.

      . Under Article IV, Section 109 of the Mississippi Constitution:
      No public officer or member of the legislature shall be interested, directly or indirectly, in any contract with the state, or any district, county, city, or town thereof, authorized by any law passed or order made by any board of which he may be or may have been a member, during the term for which he shall have been chosen, or within one year after the expiration of such term.
      The Mississippi Legislature has more specifically prohibited a public servant's financial interest in public business. Under Mississippi Code Annotated section 25 — 4—105(1)—(3)(a) (Rev.2010):
      (1)No public servant shall use his official position to obtain, or attempt to obtain, pecuniary benefit for himself other than that compensation provided for by law, or to obtain, or attempt to obtain, pecuniary benefit for any relative or any business with which he is associated.
      (2) No public servant shall be interested, directly or indirectly, during the term for which he shall have been chosen, or within one (1) year after the expiration of such term, in any contract with the state, or any district, county, city or town thereof, authorized by any law passed or order made by any board of which he may be or may have been a member.
      (3) No public servant shall: ... Be a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent, other than in his contract of employment, or have a material financial interest in any business which is a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent.

      . Because the two simultaneous orders disposed of all the Bradleys' claims against all three defendants, each order became a final, appealable judgment. But see M.R.C.P. 54(b) (providing that an order that "adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties" is not a final order unless the trial court expressly determines it is final).

      . A person can conspire with a corporate entity. And "[w]here an officer, agent or employee of a corporation maliciously or wrongfully, but in the course of employment, enters into a conspiracy to defraud or commit other wrongs against another for the benefit of the corporation, the corporation will be liable[J” 10 Fletcher Cyc. Coip. § 4884 (Rev.2010).

      . This court ordered the circuit court to provide a transcript, if one existed, of the April 18, 2011 summary-judgment hearing and was informed by the Wayne County Circuit Clerk’s office that no transcript exists.


source: Caselaw Access Project

author: LEE, C.J., for the Court: CARLTON, J.,

license: Public Domain

text:
    CENTURY CONSTRUCTION COMPANY, LLC, Appellant v. BANCORPSOUTH BANK, A Mississippi Banking Corporation, Appellee.
    No. 2011-CA-01853-COA.
    Court of Appeals of Mississippi.
    June 11, 2013.

      Ken R. Adcock, Carthage, attorney for appellant.
    James Patrick Caldwell, Tupelo, Kevin B. Smith, Christopher Royce Shaw, Jackson, attorneys for appellee.
   LEE, C.J., for the Court:

¶ 1. This appeal arises from Century Construction Company LLC’s claim against BancorpSouth Bank for negligence, breach of warranty, and wrongful conversion as a result of almost $500,000 in checks having been forged by Century’s bookkeeper from its corporate checking account with BancorpSouth. Bancorp-South moved for summary judgment, arguing that the deposit agreement signed when Century opened the checking account contained a sixty-day notice provision for fraudulent activity rather than the statutory one-year notice. The trial court agreed that as a matter of law the notice provision could be contractually shortened, and granted BancorpSouth’s motion for summary judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. On August 15,1997, Century opened a corporate checking account with Ban-corpSouth. The authorized signors on the account were Clarence Chapman Jr. and Jo Lynn Chapman.

¶ 3. In late October 2004, Century’s newly hired bookkeeper, Vicki Smith, began forging checks drawn on Century’s corporate account with BancorpSouth. The checks were made payable to vendors with whom Century did business; however, the spellings of the vendors’ names were altered. Additionally, Smith, who was not authorized to sign checks, forged the authorized signors’ names.

¶ 4. According to Century, Bancorp-South contacted Clarence Chapman in August 2005, regarding a requested payment made on the account by phone. Chapman then called the Richland, Mississippi branch of BancorpSouth and instructed the bank to disallow the requested payment and to pay items only upon the authorized signature on the account. Ban-corpSouth asserts that it has no record of either telephone conversation.

¶ 5. On September 20, 2005, after thirty-two checks totaling $450,002.55 to three separate payees had been payed, the forgeries ended. Century requested Ban-corpSouth provide the bank statements for the past year, because Smith had destroyed all of the bank statements to conceal the fraud. On September 29, 2005, Century received the statements and conducted an audit of the account.

¶ 6. According to Century, it contacted the Richland branch of BancorpSouth and reported that there had been several forgeries on the account, instructed the branch manager to notify BancorpSouth’s fraud department, and instructed that only checks signed by authorized signors should be paid. Again, BancorpSouth asserts that it has no record of this telephone conversation.

¶ 7. On October 12, 2005, Century faxed a letter to the branch manager of the Richland branch of BancorpSouth. This letter stated that “unauthorized parties” had been signing checks that were in turn paid by the bank. Century requested that BancorpSouth “only pay checks signed by authorized signors.” Century also informed BancorpSouth that it was currently auditing the activities of the account and “[would] let [BancorpSouth] know immediately of any miss appropriated [sic] funds.” And on August 30, 2006, Century, through its counsel, sent a letter to BancorpSouth regarding its claim against BancorpSouth for breach of warranty.

¶ 8. On April 23, 2008, Century filed suit against BancorpSouth for negligence, breach of warranty, and wrongful conversion. BancorpSouth moved for summary judgment, which the trial court granted. This appeal followed.

STANDARD OF REVIEW

¶ 9. Mississippi Rule of Civil Procedure 56(c) governs motions for summary judgment. “When reviewing a trial court’s grant of summary judgment, our standard of review is de novo.” Webb v. Braswell, 930 So.2d 387, 395 (¶ 12) (Miss.2006). For its review, this Court “must examine all the evidentiary matters ... including ... admissions in pleadings, answers to interrogatories, depositions^] and affidavits.” Id. The Court views the evidence in the light most favorable to the nonmoving party. McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996). To succeed on a motion for summary judgment, the moving party must prove that no genuine issue of material fact exists. Id.

DISCUSSION

I. SIXTY-DAY NOTICE PROVISION

¶ 10. When Century opened its corporate checking account with Bancorp-South, it signed a deposit agreement, stating in relevant part:

Statements — You must examine your statement of account with “reasonable promptness.” If you discover (or reasonably should have discovered) any unauthorized payments or alterations, you must promptly notify [BancorpSouth] of the relevant facts.
You further agree that if you fail to report any unauthorized signatures, alterations, forgeries, or any other errors in your account within sixty (60) days when [BancorpSouth] make[s] the statement available, you cannot assert a claim against [BancorpSouth] on any items in that statement, and the loss will be entirely yours.

¶ 11. Century contends that the one-year notice statute of repose under Mississippi Code Annotated section 75-4-406(f) (Rev.2002) cannot be contractually reduced. Section 75-4-406(f) states:

Without regard to care or lack of care of either the customer or the bank, a customer who does not within one (1) year after the statement or items are made available to the customer (subsection (a)) discover and report the customer’s unauthorized signature on or any alteration on the item is precluded from asserting against the bank the unauthorized signature or alteration.

This section clearly limits the liability of the bank to one year after the statement was made available to the customer. However, this section must be read in conjunction with Mississippi Code Annotated section 75-4-103(a) (Rev.2002), which provides, “The effect of the provisions of this chapter may be varied by agreement, but the parties to the agreement cannot disclaim a bank’s responsibility for its lack of good faith or failure to exercise ordinary care or limit the measure of damages for the lack or failure.” From a plain reading of the statute, the one-year notice provision established by section 75-4-406(f) “may be varied” by the deposit agreement.

¶ 12. Although this is an issue of first impression in Mississippi, the Wisconsin Court of Appeals addressed this very issue in Borowski v. Firstar Bank Milwaukee, N.A., 217 Wis.2d 565, 579 N.W.2d 247 (Wisc.Ct.App.1998). In Borowski, the deposit agreement shortened the one-year notice provision to fourteen days. Borow-ski asserted that the reduction in time was ineffective because section 404.103(1) of the Wisconsin Statutes, the comparable statute to Mississippi Code Annotated section 75-4-103(a), “prevent[ed] any agreement between a bank and its customer from ‘disclaiming a bank’s responsibility for its own lack of good faith or failure to exercise ordinary care or limiting the measure of damages for such lack or failure.’ ” Borowski, 579 N.W.2d at 251. The Wisconsin Court of Appeals disagreed with this contention, stating:

[I]t is not the agreement between Bo-rowski and Firstar Bank that gives the bank immunity even if it is negligent[;] it is [section] 404.406(4) [ (the comparable statute to Mississippi Code Annotated section 75^4 — 406(f)) ]; all the agreement does is reduce the time within which the customer must notify the bank of an unauthorized signature or an alteration from one year to fourteen days.

Borowski, 579 N.W.2d at 251.

¶ 13. The Borowski court looked to Parent Teacher Association v. Manufacturers Hanover Trust Company, 188 Misc.2d 289, 524 N.Y.S.2d 336 (N.Y.Civ.Ct.1998), which also approved the reduction of the notice provision from one year to fourteen days without regard to the bank’s negligence or lack thereof. The court noted:

In upholding the fourteen-day period, the court in Parent Teacher [Association ] stated:
Conditions precedent and shortened periods of limitation similar to those at issue here have been routinely accepted in the banking relationship. Such provisions are not only compatible with statute and case law; they are in accord with public policy by limiting disputes in a society where millions of bank transactions occur every day.

Borowski, 579 N.W.2d at 252 (citing Parent Teacher Ass’n, 524 N.Y.S.2d at 340).

¶ 14. Numerous jurisdictions have also upheld the contractual shortening of the notice provision. See Graves v. Wachovia Bank, Nat’l Ass’n, 607 F.Supp.2d 1277, 1281 (M.D.Ala.2009) (approving the limiting of the notice provision to forty days); Am. Airlines Emp. Fed. Credit Union v. Martin, 29 S.W.3d 86, 98 (Tex.2000) (upholding the shorting of the notice provision to sixty days); Freese v. Regions Bank, N.A., 284 Ga.App. 717, 644 S.E.2d 549, 552 (2007) (finding a thirty-day notice provision not manifestly unreasonable); Napleton v. Great Lakes Bank, N.A., 408 Ill.App.3d 448, 348 Ill.Dec. 804, 945 N.E.2d 111, 119 (2010) (approving the limiting of the notice provision to thirty days); Nat’l Title Ins. Corp. v. First Union Nat’l Bank, 263 Va. 355, 559 S.E.2d 668, 672 (2002) (upholding a sixty-day notice provision); Peters v. Riggs Nat’l Bank, N.A., 942 A.2d 1163, 1168 (D.C.2008) (approving the shorting of the notice provision to sixty days); Stowell v. Cloquet Co-op Credit Union, 557 N.W.2d 567, 574 (Minn.1997) (approving a twenty-day notice provision). Century fails to cite one jurisdiction that has addressed this issue and found the contractual shortening of the notice provision to be improper. Therefore, we find that section 75-4-406(f) “may be varied” by the deposit agreement.

II. NOTICE REQUIREMENTS

¶ 15. Section 75-4-406(f) places the burden on the customer to “discover and report the customer’s unauthorized signature on or any alteration on the item....” An item is defined as “an instrument or a promise or order to pay money handled by a bank for collection or payment.” Miss.Code Ann. § 75-4-104(a)(9) (Supp.2012). Century asserts that section 75-4-406(f) does not require specific notice of each check but that constructive notice is sufficient. Century claims it gave Ban-corpSouth constructive notice on three different occasions: (1) by a telephone call to the Richland branch in August 2005; (2) by another telephone call to the Richland branch in September 2005; and (3) by a letter faxed to the Richland branch on October 12, 2005. Century gave specific notice in a letter sent to BancorpSouth’s registered agent in Tupelo, Mississippi, on August 30, 2006.

¶ 16. When interpreting a statute, the Court does “not ... decide what a statute should provide, but ... determine^] what it does provide.” Lawson v. Honeywell Int’l, Inc., 75 So.3d 1024, 1027 (¶ 7) (Miss.2011) (citations omitted). We must do so without broadening or restricting the statute. Id. “If the words of a statute are clear and unambiguous, the Court applies the plain meaning of the statute and refrains from using principles of statutory construction.” Id. Here, section 75-4-406(f) plainly states the customer has a duty to “discover and report the customer’s unauthorized signature on or any alteration on the item ....” (Emphasis added). Under the unambiguous language of the statute, the customer must report the item; therefore, the statute requires specific notice.

¶ 17. Although the Mississippi Supreme Court has not interpreted if section 75-4-406 requires specific notice, the court stated in Union Planters Bank, National Association. v. Rogers, 912 So.2d 116, 121 (¶ 13) (Miss.2005):

Because the customer is more familiar with his own signature, and should know whether or not he authorized a particular withdrawal or cheek, he can prevent further unauthorized activity better than a financial institution which may process thousands of transactions in a single day. Section 4-406 acknowledges that the customer is best situated to detect unauthorized transactions on his own account by placing the burden on the customer to exercise reasonable care to discover and report such transactions.

(Emphasis added).

¶ 18. Although the statute is silent as to the specifics of these items or transactions that must be reported, the Illinois Court of Appeals has stated that “common sense indicates that the report should be sufficient to at least identify the quantity of checks involved, their amounts, the dates and check numbers, the names of the payees, or any other specific information upon which the bank could have acted.” Watseka First Nat’l Bank v. Horney, 292 Ill.App.3d 933, 227 Ill.Dec. 19, 686 N.E.2d 1175, 1179 (1997) (addressing Knight Commc’ns, Inc. v. Boatmen’s Nat’l Bank of St. Louis, 805 S.W.2d 199 (Mo.Ct.App.1991)).

¶ 19. Viewing the facts in the light most favorable to Century, the nonmoving party, we must assume that Chapman made both phone calls to the BancorpSouth branch in Richland. According to Century, during the August 2005 phone call, Chapman instructed BancorpSouth “to disallow the wire transfer and ... to only pay checks confirmed to be an authorized signature on the account.” Also according to Century, during the September 2005 phone call, Chapman notified Bancorp-South that forgeries on the account had occurred, “instructed the branch manager to notify [BancorpSouth’s] fraud department,” and again asked that “only corporate checks with authorized signatures should be paid.” During these phone calls, Century never spoke about “the item,” as required by section 75-4-104(a)(9), or “such transaction,” as required by Rogers, 912 So.2d at 121 (¶ 13). In fact, Century never stated “the quantity of checks involved, their amounts, the dates and check numbers, the names of the payees, or any other specific information upon which the bank could have acted.” Horney, 227 Ill.Dec. 19, 686 N.E.2d at 1179.

¶ 20. On October 12, 2005, Chapman faxed a letter to BancorpSouth, stating:

It has come to our attention that unauthorized parties have been signing cheek[s] on our account named above[,] and the bank has been paying those. Please make sure to only pay checks signed by authorized signors.
We are currently auditing this account and will let you know immediately of any miss appropriated [sic] funds.

Again, Century did not inform Bancorp-South of “the item” or “such transactions,” nor did it state “the quantity of checks involved, their amounts, the dates and cheek numbers, the names of the payees, or any other specific information upon which the bank could have acted.” Miss. Code Ann. § 75-4-104(a)(9); Rogers, 912 So.2d at 121 (¶ 13); Horney, 227 Ill.Dec. 19, 686 N.E.2d at 1179.

¶ 21. Instead of letting BancorpSouth know immediately of any misappropriated funds, Century did not contact the bank again until August 30, 2006, when it sent a letter through its counsel to Baneorp-South’s registered agent. Century enclosed in the letter “a ledger listing the checks which were paid by BancorpSouth which were forged and contain unauthorized signatures.” This ledger informed BancorpSouth of “the item(s)” and “such transactions,” under the requirements of section 75-4-406(f). We find that Century did not give the notice required under section 75-4-406(f) until it sent the ledger to BancorpSouth on August 30, 2006.

III. TIMELINESS OF NOTICE

¶ 22. The forgeries ended on September 20, 2005. Under the deposit agreement, Century had sixty days after receiving notice to inform BancorpSouth of these forgeries. As stated above, Century did not report the specific items to Bancorp-South until August 30, 2006, almost one year after the forgeries ended.

¶ 23. Because Century failed to report the specific items to BancorpSouth within the sixty-day notice period mandated by the deposit agreement, we find that the trial court’s grant of summary judgment was proper.

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

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

CARLTON, J.,

dissenting:

¶25. I respectfully dissent from the disposition of the majority’s opinion. I agree with the majority that the reporting period may be modified to sixty days. However, I submit that in light of the standard of review applicable to summary judgment, we should reverse and remand the trial court’s grant of summary judgment in this case since genuine issues of material fact exist as to whether Bancorp-South failed to exercise its duty of due care or good faith as to any unauthorized checks or withdrawals occurring within the sixty-day reporting period wherein the bank possessed actual knowledge of unauthorized signatures on checks and transactions. Chapman and Century attest that they provided the bank with telephonic notice of unauthorized checks and faxed a letter to the bank due to unauthorized signatures on checks. I further submit that a genuine issue of material fact exists as to whether Chapman’s oral notice and Century’s faxed letter complied with the deposit agreement’s requirement of notice to the bank of forgeries, particularly in light of the evidence that the bank possessed actual knowledge of unauthorized signatures on checks, which caused the bank to alert Chapman of fraud in August 2005. See Am. Airlines Emps. Fed. Credit Union v. Martin, 29 S.W.3d 86, 97 (Tex.2000).

¶ 26. I would instruct the trial court to determine upon remand what particular disputed checks, if any, fall within the sixty-day reporting period after the bank received notice of unauthorized checks or forgeries in August 2005, when notified by Chapman after the bank called him; on September 29, 2005, when notified by Century; and on October 12, 2005, when Century reported unauthorized checks by faxed letter to the bank. I respectfully submit that the claims regarding unauthorized checks or forgeries, if any, posted before that reporting period are time-barred, and summary judgment is proper as to those. As stated, a review of the record, including deposition testimony therein, reflects that a genuine issue of material fact exists as to whether Century complied with its agreement by providing sufficient notice of the forgeries by Chapman’s telephonic notice in August 2005; the telephonic notice provided by Century in September 29, 2005; or the faxed letter sent to the bank by Century on October 12, 2005. The trial court as well as this Court must view the evidence in the light most favorable to the nonmoving party in reviewing the summary-judgment motion.

¶ 27. Viewing the facts in the light most favorable to the nonmoving party, the record in this case shows that in response to an inquiry by the bank about a potential forgery, Chapman, an authorized signatory of Century’s account, provided that he called the bank to disallow a check and notified the bank to pay items only upon an authorized signature. The signature cards possessed by the bank reflect that only two persons were authorized to sign and authorize transactions on the account. Century also asserts that after its September 2005 audit of the account, the Richland branch of the bank was contacted and notified of several forgeries on the account. Then, on October 12, 2005, Century faxed a letter to the branch manager of the Richland branch of the bank again notifying the bank of the forgeries, and Century sent another letter to the bank a year later in August 2006, regarding its claim of breach of warranty.

¶ 28. The bank bears the responsibility of ensuring only authorized signatures approve of transactions on an account, as reflected by the signature cards and account agreement. In applying the law to the sufficiency of the telephonic notice provided regarding the forgeries in this case, I find instructive the case of ADC Rig Serv., Inc. v. JPMorgan Chase Bank, N.A., 641 F.Supp.2d 617 (S.D.Tex.2009). In that case, the court found that for summary-judgment purposes, sufficient evidence was presented to show that oral notice to the bank of forgeries substantially complied with the contractual provisions even though the contract required written notice. Id. at 624-26. More specifically, the JPMorgan court found that the facts presented provided sufficient evidence as to when the possible forgeries had first been reported to the bank to enable a jury to conclude that the reporting requirement of the contract had been satisfied. Id. The court then determined that summary judgement was improper as to the unauthorized checks posted during the reporting period when the bank received the oral notice of possible forgeries. Id. The court, however, found summary judgment proper as to any unauthorized checks posted before the reporting period wherein the bank received oral notice of possible forgeries. Id,

¶ 29. With respect to the law allowing the reporting period to by varied by agreement, the plain language of Mississippi Code Annotated section 75-4-103(a) (Rev. 2002), as well as precedents of other jurisdictions applying mirror images of this statute, clearly establishes that the notice provision at issue may be contractually shortened. However, cases applying similar statutes provide that a bank and a customer may shorten the statute-of-repose period for reporting unauthorized checks or withdrawals as long as the shortened period is not manifestly unreasonable. Neither the Mississippi statutes nor statutes of sister jurisdictions define when a shortened period is manifestly unreasonable. However, as noted in Martin, 29 S.W.3d at 96-97, shortened notice periods from fourteen to sixty days have been enforced by the courts.

¶ 30. While courts have found reporting periods of fourteen, thirty, and sixty days to not be manifestly unreasonable, the courts in those cases clearly determined that the bank was not excused from its duty of due care and good faith when contractually shortening the period. In Martin, 29 S.W.3d at 95-97, the court explained that a reporting period shortened too much would in effect disclaim the bank’s liability for lack of ordinary care and therefore void the provision. See Miss.Code Ann. § 75-4-103(a) (prohibiting the parties to the agreement from disclaiming a bank’s responsibility for its lack of good faith or failure to exercise ordinary care or limiting the measure of damages). I respectfully submit that the plain language of section 75-4-103(a), consistent with precedent of sister jurisdictions, prohibits the provision in this instant contract from disclaiming the bank’s liability for lack of due care and good faith. See Phillips Home Furnishings Inc. v. Continental Bank, 231 Pa.Super. 174, 331 A.2d 840, 844-45 (1974) (reversed on other grounds) (finding exculpatory provision in contract against public policy and providing that bank cannot exculpate itself from negligence due to its own lack of due care or good faith because of great need for professional and competent banking services and because justifiable reliance on integrity and safety of financial institutions is too strong to permit a bank to contract away its liability for failure to provide service and protections its customers expect).

¶ 81. In applying section 75-4-103(a) to this case, the disclaimer provision regarding good faith and the duty of due care in the contract is void by operation of law due to its conflict with section 75-4-103(a), and this disclaimer is therefore inconsistent with reasonable commercial practices as defined by the Mississippi Legislature in that enactment. However, as acknowledged, I concur with the majority opinion in finding that parties indeed may vary the reporting period by agreement. Best v. Dreyfus Liquid Assets, Inc., 215 N.J.Super. 76, 521 A.2d 352, 354-55 (N.J.Sup.Ct.App.Div.1987); Freese, 644 S.E.2d at 550 (thirty-day time period agreed to by the parties was not manifestly unreasonable nor inconsistent with commercial practices since the agreement did not excuse the bank from its duty of ordinary care); Martin, 29 S.W.3d at 97 (if customer complies with notice period, regardless of whether it is the statutory period or a shorter period, the bank is still liable for any failure to exercise due care). With the duty of due care and good faith in issue in this case, the trial court must have determined the sufficiency of notice to the bank by Chapman’s telephonic response to the bank in August 2005, particularly in light of the testimony that the bank called Chapman to notify him of a fraudulent wire transaction to a credit card. In his deposition, Chapman explained that he confirmed with the bank that the transaction was not authorized. The bank’s call to Chapman shows that the bank possessed actual knowledge and notice of suspected unauthorized withdrawals and forgery sufficient to survive summary judgment. As discussed, Chapman confirmed the bank’s suspicion. If this notice is sufficient to survive summary judgment — and I respectfully submit that the deposition testimony of Chapman and of BancorpSouth’s representative, Cathy Talbot, shows that sufficient facts indeed were presented — then the bank’s duty of good faith and due care is in issue.

¶ 32. One treatise provides the following helpful commentary based upon statutory provisions and judicial decisions construing the statutes at issue in this case:

[T]he Uniform Commercial Code ... ob-ligatefs] banks to act in good faith and exercise ordinary care in dealing with customers and prohibits banks from disclaiming the duty to use ordinary care or from limiting their liability for the failure to use ordinary care. The Code provision is in conformity with case law which had begun to hold stipulations exonerating banks from liability invalid either as against public policy or for lack of consideration. While the Code provision prohibits a bank from disclaiming its duty to use ordinary care or from limiting its liability for the failure to use ordinary care, it allows the parties by agreement to set the standards by which the bank’s responsibility is to be measured if those standards are not manifestly unreasonable.
Federal Regulation CC provides that the effect of the provisions regarding the collection of checks may be varied by agreement, except that no agreement can disclaim the responsibility of a bank for its own lack of good faith or failure to exercise ordinary care or can limit the measure of damages for such lack or failure. As with the Code, the Regulation does allow the parties to determine by agreement the standards by which the responsibility of the bank is to be measured so long as those standards are not manifestly unreasonable.

8 Williston on Contracts § 19:30 (4th ed.2010).

¶ 33. Based upon the foregoing, I would reverse and remand the grant of summary judgment by the trial court because genuine issues of material fact exist as to whether Century complied with the notice provisions of its deposit contract/checking account by the oral notice of Chapman in August 2005 and by Century in September 2005, or by the letter faxed by Century to the bank in October 2005. I respectfully submit that genuine issues of material fact also exist as to whether the bank complied with its duty of ordinary care and good faith in performing its banking services.

IRVING AND GRIFFIS, P.JJ., AND JAMES, J., JOIN THIS OPINION.

      . Jurisdictions have enforced shortened notice periods ranging from fourteen to sixty days. See Am. Airlines Emps. Fed. Credit Union v. Martin, 29 S.W.3d 86, 97 (Tex.2000); see also ADC Rig Serv., Inc. v. JPMorgan Chase Bank, N.A., 641 F.Supp.2d 617, 623 (S.D.Tex.2009).

      . Signature cards establish a contract between the customer and the bank. Martin, 29 S.W.3d at 96; see generally JPMorgan, 641 F.Supp.2d at 623.

      . Freese v. Regions Bank, N.A., 284 Ga.App. 717, 644 S.E.2d 549, 552 (2007) (parties may vary notice period by agreement if shortened period is not manifestly unreasonable, but bank still liable for any failure to exercise due care).

      . See Webb v. Braswell, 930 So.2d 387, 395 (¶ 12) (Miss.2006) (setting forth the standard of review employed when considering a trial court’s grant of summary judgment).

      . The court in JPMorgan also found that the statutory prohibition on recovery by a bank customer who fails to detect and report within a certain number of days of the first unauthorized transaction in a series by the same wrongdoer failed to apply when the bank failed to exercise ordinary care in paying the items. JPMorgan, 641 F.Supp.2d at 622-23. Signing signature cards establishes a contract. Id. at 623.

      . JPMorgan, 641 F.Supp.2d at 622; Martin, 29 S.W.3d at 95, 97.

      . See Peters v. Riggs Nat'l Bank, N.A., 942 A.2d 1163, 1168 (D.C.2008) (sixty days); Freese, 644 S.E.2d at 550 (thirty days).

      . Martin, 29 S.W.3d at 95-97; see also Freese, 644 S.E.2d at 550.

      . Contracts against liability for negligence are not favored by the law. Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 192 A.2d 682, 687 (1963).

      . The deposition of BancorpSouth representative Talbot, at exhibit G in the record, explains that only two individuals possessed authority to sign checks on Century’s accounts. The individuals were Clarence and Jo Lynn Chapman. Talbot admitted in her deposition that the signatures on check numbers 3338, 3362, and other checks did not "agree” with the signatures on file at BancorpSouth. Therefore, not only were these unauthorized transactions on Century’s accounts, but the signatures were unauthorized. Talbot’s testimony reflects that these checks with unauthorized signatures were on the July 2005 statement, and she confirmed that had the forgeries and unauthorized transactions been discovered at that time, then most of the forgeries would have been prevented.


author: MURDOCK, Justice.

text:
    Ex parte Stanford Earl PRITCHETT. (In re Stanford Earl Pritchett v. State of Alabama).
    1100465.
    Supreme Court of Alabama.
    Sept. 7, 2012.

      Christmas Y. Green, Selma, for petitioner.
    Luther Strange, atty. gen., and Prim Escalona, deputy atty. gen., and Jean-Paul M. Chappel, asst. atty. gen., for respondent.

       Justice Main and Justice Wise were members of the Court of Criminal Appeals when that court considered this case.

   MURDOCK, Justice.

While represented by counsel, Stanford Earl Pritchett pleaded guilty to murder. Thereafter, Pritchett filed a pro se motion to set aside his guilty plea, asserting ineffective assistance of trial counsel. The trial court denied Pritchett’s motion without conducting a hearing and without making a determination that Pritchett had validly waived his right to counsel with respect to the motion.

The Court of Criminal Appeals affirmed the trial court’s order denying Pritchett’s motion to withdraw his guilty plea. Pritchett petitioned this Court for a writ of certiorari as to that decision, asserting that it conflicted with Berry v. State, 630 So.2d 127, 129 (Ala.Crim.App.1993). We granted the petition, and we now reverse the decision of the Court of Criminal Appeals and remand the case.

Facts and Procedural History

On February 22, 2010, Pritchett entered a plea of guilty to murder, see Ala.Code 1975, § 13A-6-2. The trial court sentenced him to 23 years’ imprisonment.

In the proceedings up to and through Pritchett’s entry of a guilty plea, Pritchett was represented by appointed counsel. Among other things, counsel signed an explanation-of-rights-and-plea-of-guilty form and were present in court during the hearing in which the trial court accepted Pritchett’s guilty plea.

On March 22, 2010, Pritchett filed a timely motion to withdraw his guilty plea. The motion was handwritten. It expressly stated that it was being filed “pro se.” The ground for relief stated in the motion was the alleged inadequacy and ineffectiveness of the counsel who had represented Pritchett up to that point.

The trial court denied Pritchett’s motion the next day without a hearing. The record does not reveal the basis for the denial of Pritchett’s motion; the trial court did not enter a written order but merely noted the denial on the first page of the motion. On April 20, 2010, Pritchett, acting pro se, filed an appeal to the Court of Criminal Appeals from the denial of his motion.

On May 11, 2010, appointed counsel filed a motion to withdraw as attorneys of record. In their motion to withdraw, counsel stated that “Pritchett has never, by letter or otherwise, requested counsel to file any notice of appeal, pleading, motion or other request for relief in connection with his plea of guilty on February 22, 2010.” The trial court granted the attorneys’ motion to withdraw on the same day the request was made.

Following the withdrawal of appointed counsel, new counsel was appointed to represent Pritchett on appeal. On appeal before the Court of Criminal Appeals, Pritch-ett contended that a motion to withdraw a guilty plea is a “critical stage” in a prosecution and that the trial court denied him his Sixth Amendment right to counsel by denying his motion when he was not “duly” represented by counsel and without obtaining a valid waiver of his right to counsel.

The Court of Criminal Appeals affirmed the trial court’s judgment by an unpublished memorandum. Pritchett v. State (No. CR-09-1050, Dec. 3, 2010), 92 So.3d 816 (Ala.Crim.App.2010) (table). That court purported to distinguish this case from Berry and Casteel v. State, 21 So.3d 11 (Ala.Crim.App.2008), on the ground that Pritchett was represented by counsel when he filed his pro se motion to withdraw his guilty plea and that Pritchett had no constitutional right to so-called “hybrid representation” (that is, self-representation and representation by counsel). See Christianson v. State, 601 So.2d 512, 519 (Ala.Crim.App.1992) (no right to hybrid representation). This Court granted Pritchett’s petition for review of the Court of Criminal Appeals’ decision.

Analysis

In his brief to this Court, Pritchett contends, as he did in the Court of Criminal Appeals, (1) that the preparation and presentation of his motion to withdraw his guilty plea was a critical stage in the judicial proceedings as to which the Sixth Amendment right to counsel applied, and (2) that the trial court violated his Sixth Amendment right to counsel when it denied his pro se motion to withdraw his guilty plea without first determining that Pritchett knew he had a right to the assistance of counsel in connection with such a motion and that he had knowingly and intelligently waived that right.

A criminal defendant has a right to counsel at any “critical stage” in the proceedings in which he or she is prosecuted and sentenced, e.g., United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), that is, at any stage at which a substantial right of the accused may be affected, Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). “If the accused ... is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment [to the United States Constitution] stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or liberty.” Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The trial “court should advise the defendant regarding the ‘dangers and disadvantages’ of proceeding without the assistance of counsel in order for the record to show that the defendant has decided to proceed without counsel ‘with eyes wide open.’ ” Johnson v. State, 716 So.2d 745, 749 (Ala.Crim.App.1997) (quoting Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). See also Faretta, 422 U.S. at 807 (recognizing a criminal defendant’s right to proceed without counsel when he or she “voluntarily and intelligently elects to do so”).

Like the present case, Berry involved a defendant who was represented by appointed counsel up to and through the entry of a guilty plea. Berry subsequently filed a pro se motion to withdraw his guilty plea. A hearing was conducted on this motion; Berry attended that hearing unaccompanied by counsel.

On appeal, the Court of Criminal Appeals held “that the hearing, insofar as [Berry’s] motion to withdraw his guilty plea was reviewed, was a critical stage in the judicial proceedings that required that he have the assistance of counsel during that proceeding or that he have validly waived such assistance.” Berry, 630 So.2d at 130. The Berry court found that because Berry was not represented at the hearing on his motion to withdraw his guilty plea, a fundamental error had occurred, and, therefore, the case was remanded to the trial court with instructions for the trial court to set aside its order denying Berry’s motion to withdraw the guilty plea and to conduct a new hearing on the motion at which Berry was to be represented by counsel.

Casteel involved an appeal from the denial of a Rule 32, Ala. R.Crim. P., petition. Casteel, an indigent defendant represented by appointed counsel, had entered a guilty plea to first-degree sexual abuse. Acting pro se, Casteel subsequently filed a motion to withdraw his guilty plea in which he requested the appointment of new counsel because, among other things, his current counsel allegedly was ineffective. Casteel represented himself at the hearing on his motion to withdraw his guilty plea. The court held that Casteel “was denied counsel during a critical stage of his criminal proceeding — the pendency and denial of his motion to withdraw his plea — and that he is entitled to an evidentiary hearing on his motion at which he is represented by counsel.” Casteel, 21 So.3d at 14. The case was remanded to the trial court with directions for the trial court to hold a hearing on Casteel’s motion to withdraw his guilty plea at which Casteel was to be represented by counsel.

It is important to observe that the fact that the defendants in Berry and Casteel had their motions denied following hearings, whereas Pritchett’s motion was denied without the benefit of a hearing, is no basis for distinguishing between those earlier cases and this one. Indeed, although the State argued this as a distinction in the Court of Criminal Appeals, it abandons that argument in this Court. As the Court of Criminal Appeals explained in Berry:

“The Sixth Amendment guarantees the right of counsel to the accused in all criminal prosecutions. U.S. Const. Amend. VI. This right to counsel encompasses all federal and state criminal prosecutions that result in imprisonment. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). This right is applicable to the states by virtue of the Fourteenth Amendment. Gideon v. Wainwright. The right attaches at the initiation of adversary judicial proceedings, and extends to every critical stage of the proceedings. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). A critical stage is any stage where a substantial right of an accused may be affected, Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), and can arise in pretrial as well as post-trial proceedings. See Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (pretrial right to presence of attorney violated during any interrogation occurring after the first formal charging proceedings, absent a valid waiver); Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) (pre-trial right to counsel violated where judicial proceedings had been initiated and confession obtained without the presence of counsel and in absence of a valid waiver); Johnston v. Mizell, 912 F.2d 172 (7th Cir. 1990), cert. denied, 498 U.S. 1094, 111 S.Ct. 982, 112 L.Ed.2d 1067 (1991) (post-trial motion for new trial critical stage in criminal proceedings); Menefield v. Borg, 881 F.2d 696 (9th Cir.1989) (post-trial motion for new trial critical stage requiring counsel or valid waiver); King v. State, 613 So.2d 888 (Ala.Cr.App.1993) (post-trial motion for new trial critical stage requiring counsel, absent a valid waiver). Courts have held that a motion to withdraw a guilty plea is a critical stage in a criminal proceedings, requiring effective assistance of counsel. See, e.g., United States v. White, 659 F.2d 231 (D.C.Cir.1981); United States v. Crowley, 529 F.2d 1066 (3rd Cir.1976). In recognizing that a defendant in Alabama has a right to counsel at sentencing and in the first appeal, this court stated in King v. State, 613 So.2d at 891, ‘It would appear that if an indigent defendant is constitutionally entitled to the assistance of counsel at sentencing and in the first appeal as a matter of right, that defendant would be entitled to the assistance of counsel in the interim period, absent a waiver.’
“Based upon the foregoing authorities, we find that a motion to withdraw a guilty plea is a critical stage in a criminal proceeding requiring representation of counsel or a valid waiver of the right to counsel.”

630 So.2d at 129 (emphasis added). See also Casteel, 21 So.3d at 13-14 (holding that “the pendency and denial” of a defendant’s motion to withdraw his guilty plea is a critical stage in his criminal proceeding).

Accordingly, in its unpublished memorandum in the present case, the Court of Criminal Appeals rightly rejected the fact that the trial court held a hearing in Bern/ and Casteel as a basis for distinguishing between those cases and this one:

“We note that the State argues that Pritchett’s case is distinguishable from Berry and Casteel because, according to the State, Berry and Casteel had to represent themselves at a hearing on their motions, whereas Pritchett’s motion was summarily denied without a hearing. However, this not a sufficient distinction. In King v. State, 613 So.2d 888 (Ala.Crim.App.1993), this Court was called upon to determine ‘whether the appellant is constitutionally entitled to the assistance of counsel in the preparation of his motion for a new trial.’ King v. State, 613 So.2d at 890. (Emphasis added.) The King Court held that ‘the filing of a motion for a new trial is a critical stage of the prosecution and that an indigent defendant is entitled to the assistance of counsel, absent a waiver, at that stage of the proceedings.’ King v. State, 613 So.2d at 891. (Emphasis added.) —
“Thus, the distinguishing factor between Pritchett’s case and Berry and Casteel is not that Pritchett was not afforded a hearing.”

Although the Court of Criminal Appeals recognized the preparation, filing, and consideration of a motion to withdraw a guilty plea as a “critical stage,” that court nonetheless affirmed the judgment of the trial court on the ground that the defendant was not entitled to so-called “hybrid representation” during this critical stage. That holding, however, presumes that, unlike the defendant in such cases as Bemj and Casteel, Pritchett was in fact represented by counsel for these purposes. This cannot be presumed and, as to this issue, we see no difference between the circumstances presented in Berry and Casteel and those presented here.

In Berry, counsel who had been appointed to represent the defendant had not asked for permission to withdraw, and, thei’efore, that counsel nominally remained “of record.” Yet, based on the facts that the defendant had filed what the Court of Criminal Appeals simply referred to, without explanation, as a “pro se” motion and then appeared at a hearing on that motion without being accompanied by counsel, the court recognized the practical reality that the defendant “did not have the assistance of counsel.” Berry, 630 So.2d at 127. The present case is indistinguishable in this regard.

As in Berry, counsel in the present case were appointed for the defendant, and at no point before the filing and adjudication of the motion to withdraw the guilty plea did counsel formally withdraw. Nonetheless, Pritchett filed a motion to withdraw his guilty plea that, in this case, we know was handwritten and that explicitly stated that it was being filed as a “pro se” motion. Furthermore, we also know that, in this case, the ground for relief asserted in this motion was that counsel who had represented the defendant before the filing of the motion allegedly had been inadequate and ineffective. As in Berry, although Pritchett nominally had counsel of record at the time he filed his motion, it was clear that the motion was prepared and relief was sought by Pritchett without the involvement of that counsel. We find no distinction between the present case and Berry in this regard.

Given this lack of distinction between Berry and the present case, we in turn find persuasive and applicable the holding of Berry as to the necessity of advising a defendant of his or her right to counsel and ensuring that, if there is to be a waiver of this right, it is a knowing, intelligent, and voluntary waiver:

“The right to counsel does not depend wpon a request by the accused. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971). ‘[I]f an accused does not waive counsel and does not retain acceptable counsel, the court must appoint counsel.’ United States v. Turnbull, 888 F.2d 636, 638 (9th Cir. 1989), cert. denied, 498 U.S. 825, 111 S.Ct. 78, 112 L.Ed.2d 51 (1990). If a defendant in a criminal proceeding is not represented by counsel, the state must prove an intentional relinquishment of that right. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). If an accused waives his right to counsel, that waiver must be intelligently and understandingly made and cannot be presumed from a silent record, Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962).
“ ‘But it is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request ....
“ ‘... Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.’
“Id. at 513-16, 82 S.Ct. at 889-90.
“In reviewing the record in the instant case, we conclude that the hearing, insofar as the appellant’s motion to withdraw his guilty plea was reviewed, was a critical stage in the judicial proceedings that required that he have the assistance of counsel during that proceeding or that he have validly waived such assistance. The record shows and we find that he did not have the assistance of counsel, and no waiver is reflected on the record before us. Because we conclude that the hearing was a critical stage of the proceeding, involving the appellant’s substantial rights, the trial court was required to advise the appellant of his right to counsel and to ensure that counsel was provided or to ascertain if the right to counsel had been waived. On the record before us, we conclude that the trial court did neither.
“Because of this fundamental error, the order of the trial court denying the appellant’s motion to withdraw his guilty plea is set aside. A new evidentiary hearing at which the appellant shall be represented by counsel must be held on the appellant’s motion to withdraw his guilty plea.

680 So.2d at 129-30 (emphasis added).

By the same token, the judgment of the trial court in the present case is due to be set aside. Accordingly, the judgment of the Court of Criminal Appeals is reversed and this case is remanded to the Court of Criminal Appeals for that court to reverse the order of the trial court and remand this case for a hearing on Pritchett’s motion to withdraw his guilty plea in which Pritchett is represented by counsel or in which the trial court determines that Pritchett has knowingly, intelligently, and voluntarily waived his right to counsel.

REVERSED AND REMANDED WITH DIRECTIONS.

MALONE, C.J., and WOODALL, STUART, BOLIN, PARKER, and SHAW, JJ., concur.

MAIN and WISE, JJ., recuse themselves.

      . In his motion, Pritchett alleged, among other things, that his two appointed attorneys failed to adequately prepare and investigate his case, failed to negotiate for a plea to a Iesser-included offense, and failed to argue self-defense.

      "3The state cannot force counsel upon a defendant. Every defendant has a right to waive counsel and to conduct his own defense. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).”


author: WELCH, Judge.

text:
    Stanford Earl PRITCHETT v. STATE of Alabama.
    CR-09-1050.
    Court of Criminal Appeals of Alabama.
    Dec. 14, 2012.
    Christmas Y. Green, Selma, for appellant.
    Troy King and Luther Strange, attys. gen., and Jean-Paul Michael Chappell, asst. atty. gen., for appellee.
   On Remand, from the Alabama Supreme Court

WELCH, Judge.

In accordance with the Aabama Supreme Court’s opinion in Ex parte Pritch-ett, 117 So.3d 356 (Aa.2012), we reverse the trial court’s judgment and remand this case to the trial court for proceedings that are consistent with that opinion.

REVERSED AND REMANDED.

WINDOM, P.J., and KELLUM, BURKE, and JOINER, JJ., concur.