author: IRVING, P. J., CARLTON, J.,

text:
    TJ’S WESTERN WARE, INC. and Jean H. Ramey Holder, Appellants v. Ronald K. JEFCOAT, Appellee.
    No. 2011-CA-01490-COA.
    Court of Appeals of Mississippi.
    Sept. 17, 2013.
    Rehearing Denied Jan. 14, 2014.
    Certiorari Denied April 24, 2014.

      L. Clark Hicks Jr., Hattiesburg, attorney for appellants.
    S. Christopher Farris, attorney for ap-pellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   IRVING, P. J.,

for the Court:

¶ 1. TJ’s Western Ware Inc. (TJ’s) and Jean H. Ramey Holder filed suit in the Forrest County Circuit Court against Ronald K. Jefcoat, alleging breach of contract, breach of the duty of good faith and fair dealing, tortious interference with a contract, fraud, conversion, and unjust enrichment. Jefcoat countersued TJ’s and Holder for damages resulting from his alleged partial ownership of the business, but later abandoned these claims during the jury-instruction conference. After a two-day trial, the jury returned a verdict in favor of Jefcoat. The circuit court denied TJ’s and Holder’s subsequent motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. Feeling aggrieved, TJ’s and Holder appeal and argue that the circuit court erred in giving jury instruction D-l and that the jury’s verdict is against the overwhelming weight of the evidence.

¶ 2. We agree with TJ’s and Holder’s contention that the circuit court erred in giving jury instruction D-l and that the verdict is against the overwhelming weight of the evidence. Therefore, we reverse the judgment of the circuit court and remand this case for further proceedings.

FACTS

¶ 8. Holder opened TJ’s in 1993 in Hat-tiesburg, Mississippi, as a retail business that sells western apparel. Soon after TJ’s opened, Holder hired Jefcoat, who was married to Holder’s daughter, Tina, at the time, to manage the business. Jefcoat eventually became president and treasurer of TJ’s. Holder and TJ’s allege that after Jefcoat became an officer within the company, he loaned himself $74,300 from the corporate account and unlawfully pocketed some of the business’s profits.

¶ 4. At trial, Holder testified that she was the sole owner of TJ’s. When Holder opened TJ’s, she invested approximately $125,000 in the business. She did not collect a paycheck initially, but hoped that the business would become successful enough that she would eventually be able to recover her investment. She admitted that she made Jefcoat an officer in the company after he began working for her, but she never agreed to sell him any percentage of the business. Holder allowed Jefcoat and the business’s accountant to handle the business’s tax filings. Therefore, any information that the accountant received reflecting TJ’s ownership percentages was provided by Jefcoat. Holder insisted that even though the tax returns showed that Jefcoat owned twenty-four percent of the business, she never sold Jefcoat any percentage of the business, and Jefcoat has never invested any money in the business.

¶ 5. Additionally, Holder admitted that the company does not have any bylaws. Therefore, there are no documents that outline the responsibilities or the scope of authority for any of the company’s directors or officers. Holder stated that she learned that Jefcoat was writing multiple payroll checks to himself when she started reviewing the bank statements for the corporate account. She noted that she probably would not have objected to the increase in pay that Jefcoat gave himself as long as the business could afford it. However, she disagreed with Jefcoat writing himself two or three paychecks per week and loaning money to himself out of the corporate account. Holder insisted that she fired Jef-coat after discovering that he had been misappropriating money and not as a result of the pending divorce proceedings between Jefcoat and Tina.

¶ 6. Jefcoat admitted that he loaned money to himself from TJ’s corporate account after Holder placed him in charge of the business. He also admitted that he wrote multiple payroll checks to himself. However, Jefcoat insisted that TJ’s owed him money because he was a partial owner of the business. Jefcoat stated that he and Tina “paid the store off,” but Holder told the store’s accountant that Jefcoat only owned a twenty-four percent interest in the business. He admitted that he never invested any of his personal funds into the business but that he and Tina “paid the business off with the business.” He mentioned that he listed his withdrawal of money from the business account as a loan so that he could later create a tax shelter to avoid paying taxes on the money. Jef-coat stated that he and Tina borrowed approximately $60,000 from the business account, but he could not prove that the outstanding balance on the loans was not $74,300.

¶ 7. Jefcoat testified that he never tried to hide the store’s financial records from Holder. All of the financial transactions were documented in the store’s financial ledgers. The transaction ledger and other records would have been made available to Holder any time that she'wanted to review them. Holder fired Jefcoat shortly before Tina initiated divorce proceedings against him. Jefcoat and his brother opened a western-ware store in close proximity to TJ’s in 2008. He believed that Holder and Tina filed this suit in an attempt to ruin him financially.

¶ 8. During the jury-instruction conference, Jefcoat informed the court that he wanted to withdraw his counterclaims against TJ’s and Holder. Jefcoat requested only one jury instruction — D1—which the circuit court gave to the jury.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

I. Jury Instruction D-l

¶ 10. TJ’s and Holder argue that the circuit court erred in giving jury instruction D-l because it was confusing, was misleading, and was a misstatement of the law. More specifically, TJ’s and Holder contend that the instruction allowed the jury to relieve Jefcoat of his responsibility to repay the loans if it found that he had the authority to make the loans to himself. Jefcoat counters that the circuit court did not err in giving instruction D-l because the instruction is a correct statement of the law on unjust enrichment. We agree with TJ’s and Holder.

¶ 11. Our law is well settled with respect to how jury instructions are to be considered. “The general rule ... is that the [circuit] court has considerable discretion when instructing the jury[J” Utz v. Running & Rolling Trucking, Inc., 32 So.3d 450, 474 (¶ 78) (Miss.2010) (citing Bickham v. Grant, 861 So.2d 299, 301 (¶ 8) (Miss.2003)). In reviewing allegations of error in the refusal of a specific jury instruction, appellate courts read the instructions as a whole. Whitten v. Cox, 799 So.2d 1, 16 (¶ 39) (Miss.2000). “While a party is entitled to jury instructions that present [the party’s] theory of the case, this entitlement is limited; the [circuit] court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Young v. Guild, 7 So.3d 251, 259 (¶ 23) (Miss.2009) (citing Ford v. State, 975 So.2d 859, 863 (¶ 11) (Miss.2008)). Additionally, “it would be error to [give] an instruction which is likely to mislead or confuse the jury as to the principles of the law applicable to the facts in evidence.” Id. (quoting Southland Enters. v. Newton Cnty., 838 So.2d 286, 289 (¶ 9) (Miss.2003)).

¶ 12. Jefcoat submitted jury instruction D-l, which states:

Unjust [e]nrichment applies to situation[s] where there is no legal contract and the person sought to be charged is in possession of money or property which in good conscience and justice he should not retain but should deliver to another.
The Plaintiff, [TJ’s] Western Ware, Inc.[,] claims [that the] Defendant^] Ronald Jefcoat[,] unjustly enriched himself by making loans and taking profit out of the business that he was not authorized to do.
Therefore!,] if you find from a preponderance of the evidence that Ronald Jef-coat unjustly enriched himself by making loans and taking profits out of the business without the authority to do so, then your verdict shall be for the Plaintiff, [TJ’s] Western Ware, Inc.
However, if you find that Jefcoat had full authority to make loans and take profits from [TJ’s] Western Ware, Inc., then your verdict shall be for the Defendant, Ronald Jefcoat.

(Emphasis added). Although instruction D-l allowed the jury to exonerate Jefcoat from liability for both the loans that Jef-coat made to himself and the profits that he took out of the business if it found that he had the authority to do so, TJ’s and Holder do not challenge the jury’s finding with respect to the profits taken.

¶ 13. While instruction D-l may have properly stated the law regarding unjust enrichment, it also confused and misstated the law regarding Jefcoat’s responsibility to TJ’s as a debtor to the company. The final paragraph of instruction D-l allowed a verdict in Jefcoat’s favor if the jury found that he had authority to take profits from the business. The instruction also directs the jury to find in favor of Jefcoat if he “had full authority to make loans[.]” Under this instruction, in order for the jury to return a verdict against Jefcoat, making him liable for the repayment of the loans to TJ’s, it would have had to find that he did not have the authority as an officer of the company to make the loans. However, Jefcoat’s responsibility to repay the loans to TJ’s was not diminished if he, as an officer of the company, had the authority to make the loans to himself. Regardless of his position in the company, once he made the loans to himself, he became a debtor to the company, under an obligation to repay the money that he had borrowed.

¶ 14. Jefcoat’s defense to TJ’s and Holder’s allegation that he had unjustly enriched himself was that his partial ownership of the business cloaked him with authority to make the loans to himself and relieved him of the responsibility of repaying the loans. However, during the jury-instruction conference, Jefcoat abandoned his claims of partial ownership:

THE COURT: Are you asking them to say that Mr. Jefcoat owns a percentage of TJ’s?
[COUNSEL FOR JEFCOAT]: No, sir, I’m not, and I told them that we withdrew that.
[COUNSEL FOR TJ’S]: No credit.
THE COURT: Do what?
[COUNSEL FOR TJ’S]: If he’s not asking did he own a percentage of TJ’s, there’s no credit, there’s no setoff, he’s liable.

By relinquishing these claims, Jefcoat abandoned any claim that he acted with authority when making the loans to himself. Therefore, with Jefcoat’s lack of authority to make the loans to himself established, there was no evidence to support an instruction allowing the jury to absolve him of liability for repayment of the loans.

¶ 15. The dissent finds that any confusion created by instruction D-l is resolved when read in conjunction with instruction AP-2, which reads in pertinent part:

You are instructed that no person is entitled to unjustly enrich himself with profits from a corporation. Unjust enrichment applies when there is no legal contract and a person possesses money, which in good conscience and justice he should not retain. In that circumstance, the money should be delivered to the rightful owner. TJ’s Western Ware, Inc. claims Defendant, Ronald Jefcoat, unjustly enriched himself by making loans to himself and [by] taking other profits out of the business which he was not authorized to do. If you find by a preponderance of the evidence that Defendant, Ronald Jefcoat, unjustly enriched himself, then you are to return a verdict in favor of the Plaintiff.

(Emphasis added). We disagree with the dissent’s conclusion because instruction AP-2 does not take into consideration Jef-coat’s withdrawal of his claim of ownership in the business, and, just like instruction D-l, instruction AP-2 allowed the jury to relieve Jefcoat of repaying the loans if he had the authority to make the loans, which is a misstatement of the law. Also, the dissent misreads instruction AP-2 as affirmatively stating to the' jury that Jefcoat “was not authorized to make loans to himself and to take profits out of the business.” Dis. Op. at (¶ 2). If this were true, then instruction AP-2 would substantively conflict with instruction D-l, which allowed the jury to find in favor of Jefcoat only if it determined that he had the authority to make the loans, while instruction AP-2, when read in conjunction with instruction D-l, would have removed that discretion from the jury and required the jury to find for TJ’s and Holder. Thus, it cannot be said that reading instruction AP-2 together with instruction D-l would alleviate any confusion. Our supreme court has stated that “[w]here two or more instructions are in hopeless and substantive conflict, [appellate courts] may reverse.” Smith v. Mack Trucks, Inc., 819 So.2d 1258, 1261 (¶ 9) (Miss.2002) (citing Payne v. Rain Forest Nurseries, Inc., 540 So.2d 35, 40-41 (Miss.1989)).

¶ 16. Additionally, although not discussed by TJ’s and Holder as a basis for error, we also find that the circuit court erred in giving instruction D-l to the jury because the instruction was unsupported by the evidence. It is rather clear that instruction D-l should not have been given because (1) it lacks evidentiary support and conflates two kinds of unauthorized funds taken from TJ’s by Jefcoat: loans and profits. Jefcoat, as an officer of TJ’s, gave himself copious raises that diminished the profits of the company, thereby unjustly enriching himself. He also admitted to making unauthorized loans to himself, initially justifying his actions by claiming partial ownership of TJ’s. As previously stated, he later abandoned his claim of ownership. Therefore, since the evidentiary condition upon which Jef-coat’s non-liability for repayment of the loans rested was nonexistent, we find that the circuit court erred in giving instruction D-l to the jury. Accordingly, we reverse the judgment entered on the jury’s verdict and remand this case for further proceedings.

II. Weight of the Evidence

¶ 17. TJ’s and Holder alternatively contend that, if the circuit court properly submitted instruction D-l to the jury, the overwhelming weight of the evidence did not support a verdict in favor of Jefcoat regarding the repayment of the outstanding loans. When reviewing a claim that a jury’s verdict is against the overwhelming weight of the evidence, appellate courts will construe the evidence in the light most favorable to the verdict. R. McKnight & Son v. C & I Entm’t, 100 So.3d 1022, 1026 (¶ 11) (Miss.Ct.App.2012). Reversal is proper only when the reviewing court is convinced that allowing the verdict to stand would sanction an unconscionable injustice. Robinson Prop. Grp., Ltd. P’ship v. McCalman, 51 So.3d 946, 948 (¶ 9) (Miss.2011).

¶ 18. Because we have found that the circuit court erred in giving instruction D-l to the jury, we need not necessarily consider TJ’s and Holder’s alternative argument. Nevertheless, we note that the verdict is also against the overwhelming weight of the evidence. The Mississippi Supreme Court has held that “[wjhere the evidence clearly shows that the maker is indebted to the payee on a note, but the jury returns a verdict for the defendant, such verdict is erroneous and must be set aside.” Kaiser Invs., Inc. v. Linn Agriprises, Inc., 538 So.2d 409, 412-13 (Miss.1989) (citing Dobbs-Maynard Co. v. Jumper, 388 So.2d 879, 883 (Miss.1980)). Furthermore, “where the maker’s indebtedness on a note is clearly shown by the evidence, any verdict for the defendant less than the proven amount is erroneous.” Id. (citing Campbell v. Kelley, 719 S.W.2d 769, 771-72 (Mo.1986)).

¶ 19. During trial, Jefcoat admitted that he had made the loans to himself from the company’s corporate account. He also admitted that some of the loans had not been repaid. TJ’s and Holder presented evidence that the outstanding loan balance was $74,300. Jefcoat did not dispute this amount. Therefore, the jury’s verdict absolving Jefcoat from the responsibility to repay the outstanding loan balance is against the overwhelming weight of the evidence. Accordingly, we reverse the jury’s verdict and remand this case for further proceedings.

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

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

CARLTON, J.,

dissenting:

¶ 21. I respectfully dissent from the majority’s opinion. I embrace the analysis set forth in the post-trial opinion and order of the trial judge wherein he denied TJ’s and Holder’s motion for a judgment notwithstanding the verdict (JNOV) or a new trial. The opinion and order specifically addressed the alleged error raised on appeal regarding instruction D-l.

¶ 22. The trial court’s post-trial opinion and order provides that instruction D-l and TJ’s and Holder’s instruction AP-2 both define unjust enrichment in essentially the same way — possession by one person of money or property that belongs to another. The trial court acknowledged that instruction AP-2 instructed the jury that Jefcoat was not authorized to make loans to himself and to take profits out of the business. The trial court explained that instruction D-l relates authority to unjust enrichment, just as instruction AP-2 does, but instruction D-l left it to the jury to find unjust enrichment based on a finding of lack of authority. The trial court, citing Franklin Corp. v. Tedford, 18 So.3d 215, 240 (¶ 52) (Miss.2009), then provided that “the law requires that all instructions be read together,” and that “defects in one instruction do not require reversal where all instructions taken as a whole fairly — although not perfectly — announce the applicable primary rules of law.” The trial court determined that the jury instructions in this case fail to warrant a new trial.

¶ 23. In applying the law regarding a motion for a JNOV, the trial court cited Solanki v. Ervin, 21 So.3d 552, 568, 569 (¶¶41, 45) (Miss.2009), and held that it “could not say that the evidence was so indisputable, or so deficient, that the necessity of a trier of fact had been obviated.” The trial court therefore determined that it would “not go behind the jury to find otherwise.” The trial court also applied the law applicable to motions for new trials, recognizing the motion for a new trial in the present case appeared to be primarily based upon errors related to jury instructions. The trial court found no merit to TJ’s and Holder’s claims that confusion resulting from an absence of particular jury instructions warranted a new trial. The trial court determined that “the jury was left to decide only what, if anything, Jefcoat owed TJ’s, and the jury was instructed upon two possible bas[es] for Jefcoat’s liability — unjust enrichment and breach of his duty to act with good faith and fair dealing toward TJ’s.” As explained by the trial court, the fact that “the jury did not find in favor of [TJ’s and Holder’s] on either of those theories does not now lead ... to the conclusion that the jury’s failure to do so was the fault of the instructions, especially since [TJ’s and Holder’s] offered instructions on those theories were given.” The trial court also recognized that jurors are presumed to follow the judge’s instructions. See Ivy v. G.M. Acceptance Corp., 612 So.2d 1108, 1113 (Miss.1992).

¶ 24. Citing Busick v. St. John, 856 So.2d 304, 310 (¶ 17) (Miss.2003), the trial court concluded that “after considering all of the evidence, resolving all conflicts, and determining all reasonable inferences in Jefcoat’s favor,” it could not “find that a new trial was required on the basis that the weight of the evidence was so overwhelming[ly] in favor of [TJ’s and Holder’s] that ‘no reasonable hypothetical juror could have found as the jury found.’ ” I agree with the analysis of the trial court and would therefore affirm.

ISHEE, J., JOINS THIS OPINION.

      . Specifically, TJ’s and Holder appeal the circuit court’s denial of their motion for a judgment notwithstanding the verdict, which sought a judgment as a matter of law with respect to Jefcoat’s liability for repayment of the loans.


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Eva ANDERSON, Appellant v. BARCLAYS CAPITAL REAL ESTATE, INC. d/b/a HomEq Servicing Corporation and Ocwen Loan Servicing, Appellees.
    No. 2012-CA-00736-COA.
    Court of Appeals of Mississippi.
    Nov. 12, 2013.
    Rehearing Denied April 29, 2014.

      James A. Williams, attorney for appellant.
    Alicia Scherini Hall, W. Scott Welch III, C. Lee Lott III, Jackson, attorneys for appellees.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Eva Anderson filed a complaint that alleged her mortgage-loan-refinancing documents were forged. The chancellor granted the defendants summary judgment on the basis of res judicata. Anderson appeals and argues that the chancellor erred because genuine issues of material fact were in dispute and summary judgment was not appropriate. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 23, 2004, Anderson refinanced her mortgage. She signed a new deed of trust that secured a promissory note in the principal amount of $207,000.

A. Federal Court Lawsuit

¶ 3. On November 14, 2006, Anderson filed a pro se lawsuit against HomEq Servicing Corporation, Wachovia Bank National Association, and Wachovia Mortgage Corporation. The action was removed to the United States District Court for the Southern District of Mississippi, civil action number 2:06cv266. The complaint alleged the existence of the December 23, 2004 note and deed of trust:

5. That heretofore on the 23rd day of December, A.D., 2004, Eva Anderson-Connerly entered into a Promissory Note and Deed of Trust for the purchase of certain lands in Forrest County, Mississippi as will be more particularly described later in this Complaint.
6. That Eva Anderson-Connerly borrowed the sum of $207,000, to purchase real property at 203 Country Park Drive, Petal, Forrest County, Mississippi.
7. That said Deed of Trust was recorded in Forrest County, Mississippi in the Deed of Trust and Mortgage Book 1414 at Page 99ff.

¶ 4. The federal court case was settled and dismissed with prejudice. As part of the settlement, Anderson executed a loan modification, dated March 27, 2008. The loan modification stated that it “amends and supplements (1) the Mortgage Deed of Trust, or Deed to Secure Debt (the “Security- Instrument”), dated the 23rd day of December, 2004 .... ” Anderson also signed a settlement agreement and release on April 16, 2008, which stated: “WHEREAS, on December 23, 2004, Plaintiff [Eva Anderson] entered into a Promissory Note and Deed of Trust in favor of Argent Mortgage Company, LLC, in the principle sum of Two Hundred Seven Thousand dollars ($207,000).” It further stated that in return for valuable consideration, Anderson expressly agreed to release all defendants, including Ho-mEq and its “successors and assigns or other related ... business entities who may be or may hereafter be alleged to be liable for any and all claims ... in any way directly or indirectly connected with or related to claims that were or could have been asserted in the lawsuit.” The federal court entered an order of dismissal with prejudice on March 3, 2008.

B. This Lawsuit

¶ 5. On July 1, 2010, Anderson filed pro se a “Complaint for Forged Signature and Other Relief’ in the Chancery Court of Forrest County, Mississippi. She named as defendants: Barclays Capital Real Estate, d/b/a HomEq, et al.; Argent, d/b/a Ameriquest Mortgage; Heritage Title Company; Jessica Vargas, notary for Argent and Heritage Title.

¶ 6. The complaint alleged that Anderson had been previously unaware of the loan documents dated December 23, 2004, which purportedly bore her signature; and “[t]hat the notary for Argent misrepresented the paperwork dated December 23, 2004, which states that [Anderson] did personally come before her and signed [sic] said documents.”

¶ 7. On November 30, 2010, with leave of court, Anderson filed an amended complaint against HomEq; Ocwen Loan Servicing, LLC (Ocwen); Heritage Real Estate Services, LLC; Paige Jones; Vargas; and John Does A through Z. In her amended complaint, Anderson maintained that legitimate loan documents dated December 23, 2003, existed, but she alleged that she never signed the December 23, 2004 loan documents. Anderson only served a summons and complaint on Ho-mEq and Ocwen.

¶ 8. HomEq and Ocwen filed a motion for summary judgment. HomEq and Ocwen asked the court to dismiss Anderson’s claims because she:

(1) received a valuable settlement of her claims in previous litigation filed in 2006, and settled in 2008, (2) has made blatant and inconsistent misrepresentations of fact to this court and is barred from bringing her suit under the doctrine of judicial estoppel, and (3) has conclusively admitted certain facts through requests for admissions.

The motion argued that there were no genuine issues of material fact in dispute and the defendants were entitled to a judgment as a matter of law.

¶ 9. On April 20, 2012, the chancellor entered an opinion and final judgment that granted summary judgment and dismissed Anderson’s complaint with prejudice. The chancellor found Anderson’s claims to be frivolous and gave the defendants thirty days to submit their itemization of costs and attorney’s fees for the chancellor to award sanctions. On May 4, 2012, Anderson filed her notice of appeal.

STANDARD OF REVIEW

¶ 10. Recently, in Karpinsky v. American National Insurance Co., 109 So.3d 84, 88 (¶¶ 9-10) (Miss.2013), the supreme court succinctly stated the standard of review:

I. Standard of Review

We review the grant or denial of a motion for summary judgment de novo, viewing the evidence in the light most favorable to the party against whom the motion has been made.
II. The Summary-Judgment Standard Summary judgment is appropriate and shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Importantly, the party opposing summary judgment may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, will be entered against him.

(Citations and internal quotation marks omitted).

ANALYSIS

¶ 11. Anderson states the issue on appeal as follows:

Whether the court erred by granting summary judgment to the defendants based upon res judicata or otherwise where there was clear sworn contradictions by plaintiff that the alleged December 23, 2004 loan was not signed by her despite her 2008 settlement of the federally removed chancery court action which referenced a December 2004 loan and further erred by supporting this ruling by finding that the admissions were deemed the truth when plaintiff had responded in denial within the extended time allowed by the predecessor chancellor.

¶ 12. Anderson then argues that the chancellor failed to consider all the evidence and her arguments. She explains that she invoked chancery jurisdiction to stop a threatened foreclosure by the defendants. She had learned only recently before her pro se filing that the settlement of the 2006 lawsuit had been based upon a false and fraudulent purported loan dated December 23, 2004. She continues that while the 2006 lawsuit, which was removed to federal court, had resulted in statements by her as to the existence of a December 23, 2004 loan, she claimed early on that there was no such 2004 loan, but her loan was on December 23, 2003. It had a fixed monthly payment of $1,100, and was for the amount of $169,000, while the December 2004 was for some $207,000, and had an adjustable interest rate. The adjustable interest rate was what had increased her payments approximately $500 and caused her economic hardship. She claimed that she never agreed to an adjustable rate.

¶ 13. Anderson claimed that she repeatedly requested HomEq provide her documentation of why she was paying such a high monthly payment. They never provided her the documentation. She then contended the 2008 loan modification generated from her 2006 lawsuit was obtained by fraud since it was founded upon the false and forged December 23, 2004 loan documents. She further claimed that the defendants had no standing because they could not produce ownership of the original December 23, 2004 loan.

¶ 14. HomEq and Ocwen argue that Anderson’s suit was properly dismissed as a matter of law because Anderson previously released all of her claims against them. In the settlement of her 2006 lawsuit, Anderson executed a settlement agreement and release, which expressly released “any and all claims in any way directly or indirectly connected with or related to claims that were or could have been asserted in the Lawsuit” that Anderson might have against HomEq, a defendant in that suit. The settlement agreement also released any claims Anderson might have against HomEq and its “successors and assigns or other related ... business entities who may be or may hereafter be alleged to be liable for any and all claims.” Because Ocwen services Anderson’s mortgage through a service-transfer agreement with HomEq, Anderson’s claims against Ocwen were also released in 2008 as a matter of law.

¶ 15. Anderson does not argue that her claims in this lawsuit against HomEq and Ocwen are not within the terms of the release. Instead, she argues that her attorney in the 2006 litigation “gave [her] a back copy — a signature page, and that is all [she] signed.” She said, “I never read the [settlement] document.” The supreme court has discussed the interpretation and validity of releases and held that “every person must be presumed to know the law, and in absence of some misrepresentation, or illegal concealment of facts, the person must abide the consequences of his contracts and actions.” Farragut v. Massey, 612 So.2d 325, 329 (Miss.1992) (quoting McCorkle v. Hughes, 244 So.2d 386, 388 (Miss.1971)).

¶ 16. Here, Anderson does not claim misrepresentation or illegal concealment of facts. As a result, she must abide by the consequences of her contract. The chancellor concluded that Anderson was “estopped by res judicata from bringing the claims she asserts because she previously settled claims against the Ocwen Defendants related to the very note that is the subject of her claims in this matter.” Res judicata bars a plaintiff from asserting in later litigation any claims that were, or could have been asserted, in previous litigation. Marcum v. Miss. Valley Gas Co., 672 So.2d 730, 732 (Miss.1996).

Generally, four identities must be present before the doctrine of res judicata will be applicable: (1) identity of the subject matter of the action, (2) identity of the cause of action, (3) identity of the parties to the cause of action, and (4) identity of the quality or character of a person against whom the claim is made.

Id. (quoting Dunaway v. W.H. Hopper & Assocs., Inc., 422 So.2d 749, 751 (Miss.1982)). All of the identities are present here.

¶ 17. In Harrison v. Chandler-Sampson Insurance, Inc., 891 So.2d 224, 232 (¶ 22) (Miss.2005), the supreme court held that res judicata has two functions. One, res judicata bars claims actually litigated previously. Id. Two, res judicata merges or prevents subsequent litigation of any claim that should have been litigated previously. Id. The court has also noted that “Mes judicata ‘reflects the refusal of the law to tolerate a multiplicity of litigation.’ ” Channel v. Loyacono, 954 So.2d 415, 424 (Miss.2007) (quoting Little v. V & G Welding Supply, Inc., 704 So.2d 1336, 1337 (¶ 8) (Miss.1997)).

¶ 18. We find that the chancellor correctly entered summary judgment. There is no genuine issue of material fact in dispute as to whether Anderson executed the settlement agreement and release; she admitted it. She is bound by its terms. Hence, Anderson’s claims are now barred by res judicata. We therefore affirm the judgment of the chancellor.

¶ 19. THE JUDGMENT OF THE FORREST COUNTY CHANCERY COURT GRANTING SUMMARY JUDGMENT IN FAVOR OF THE APPEL-LEES IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: LEE, C.J.,

text:
    John Oliver HERSEY, Appellant v. Cindy Teresa Hersey GRATTON, Appellee.
    No. 2013-CA-00169-CQA.
    Court of Appeals of Mississippi.
    April 22, 2014.

      Amery Wright Ewing, attorney for appellant.
    Cindy Teresa Hersey Gratton, appellee, pro se
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   LEE, C.J.,

for the Court:

¶ 1. This case concerns whether a chancery court erred in finding a Canadian court had jurisdiction over a child-custody matter.

FACTS AND PROCEDURAL HISTORY

¶ 2. John Oliver Hersey and Cindy Teresa Hersey Gratton filed for divorce in the Alcorn County Chancery Court in October 2010. The chancellor, Judge Jacqueline Mask, granted a divorce by order entered December 14, 2010. The parties were awarded joint legal and joint physical custody of the children, with Gratton to have primary care, custody, and control of the children while in Canada. Gratton subsequently moved to Chatham, Ontario, Canada, with the couple’s two minor children. The record indicates this move was to be temporary. On March 22, 2011, Gratton filed a motion in the Ontario Court of Justice to change Hersey’s visitation as set by Judge Mask.

¶ 3. Shortly after Gratton filed her motion in the Ontario Court of Justice, Hersey filed a motion in the Alcorn County Chancery Court for contempt and modification of child custody. Hersey alleged Gratton had denied him visitation with the minor children. On May 24, 2011, an agreed order was entered in which the parties were to have joint legal custody of the children, regardless of the children’s location. Gratton also admitted she was in contempt by refusing to allow Hersey visitation with the children.

¶ 4. On December 1, 2011, Gratton filed a motion in the Superior Court of Justice, also in Ontario. In this motion, Gratton requested a custody modification and that Hersey’s visitation scheduled be modified. There was some indication that Gratton was unable to return to the United States. As a result, Hersey filed another motion in the Alcorn County Chancery Court requesting immediate return of the children to the United States as well as a custody modification. Hersey also asked the chancellor to hold Gratton in contempt.

¶ 5. After a hearing on February 22, 2012, at which neither Gratton nor her attorney appeared, Judge Mask found Gratton to be in contempt and ordered Gratton to pay Hersey’s attorney’s fees. Judge Mask granted Hersey temporary physical custody of the children until a hearing scheduled for June 5, 2012. Judge Mask appointed a guardian ad litem (GAL) to represent the children’s interests. The hearing scheduled for June 5 was continued until August 17, 2012, at which time a telephonic conference was conducted between Judge Mask, Justice John A. Desotti of the Superior Court of Justice in Ontario, the GAL, Hersey’s counsel in Mississippi and in Canada, and Gratton’s attorney in Canada. After discussion, the parties were given until September 14, 2012, to reach a resolution regarding all matters between the parties.

¶ 6. Ultimately, Judge Mask issued an order on October 31, 2012, nunc pro tunc to August 17, 2012, finding the Superior Court of Justice had jurisdiction over the visitation issues, and stayed enforcement of prior findings of contempt against Grat-ton. Hersey subsequently filed a motion to set aside Judge Mask’s order. Judge Mask denied Hersey’s motion, finding that there was no evidence Gratton committed fraud upon the court, and that jurisdiction was proper in the Ontario court. Judge Mask did schedule another conference with the Ontario court to clarify certain matters.

¶ 7. Judge Mask issued a final order on January 3, 2013, recognizing jurisdiction was proper in the Ontario Court. The remainder of Judge Mask’s order contains the entirety of Justice Desotti’s final order, in which custody of the children was granted to Gratton while the children resided with Gratton in Ontario. Hersey and Gratton were granted joint custody of the children while Hersey was exercising his visitation in Canada and in the United States. This order also set visitation and vacated the findings of contempt against Gratton. Hersey now appeals, arguing jurisdiction was proper in Alcorn County and the GAL’s investigation was not complete.

STANDARD OF REVIEW

¶ 8. “Whether a court had jurisdiction under the [Uniform Child Custody Jurisdiction and Enforcement Act] to hear a child-custody dispute is a question of law, which we review de novo.” Miller v. Mills, 64 So.3d 1023, 1026 (¶ 11) (Miss.Ct.App.2011) (citation omitted). “However, the factual findings underpinning the jurisdiction question are reviewed under the familiar substantial evidence and abuse of discretion standard.” Clifton v. Shannon, 93 So.3d 70, 72 (¶ 7) (Miss.Ct.App.2012).

DISCUSSION

I. JURISDICTION

¶ 9. We first note that Gratton has failed to file a brief in this matter. The Mississippi Supreme Court has stated:

Failure of an appellee to file a brief is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and brief of [the] appealing party, that there was no error. Where the appellant’s brief makes out an apparent case of error ..., we do not regard it as our obligation to look to the record to find a way to avoid the force of the appellant[’s] argument.

Dethlefs v. Beau Maison Dev. Corp., 458 So.2d 714, 717 (Miss.1984) (internal citations omitted). While automatic reversal is not required in cases where the appellee does not file a brief, “[t]he appellant’s argument should at least create enough doubt in the judiciousness of the trial court’s judgment that this Court cannot say with confidence that the case should be affirmed.” Selman v. Selman, 722 So.2d 547, 551 (¶ 13) (Miss.1998) (internal quotation omitted). Upon review of the record, we can say with confidence the chancellor’s decision should be affirmed.

¶ 10. Hersey contends the Alcorn County Chancery Court had initial jurisdiction at the time of the original hearing in December 2010; thus, the chancery court erred in allowing the Ontario court to assume jurisdiction.

¶ 11. Under the Uniform Child Custody Jurisdiction and Enforcement Act (UC-CJEA), only one court may assert jurisdiction after an initial custody order has been entered. See Miss.Code Ann. § 93-27-201 (Rev.2013). A court issuing an initial determination has continuing jurisdiction over the parties; no other court may modify the decree. Id. However, a court with continuing jurisdiction may decline to modify custody if another court is a more appropriate forum. See Miss.Code Ann. § 93-27-207(1) (Rev.2013). Section 93-27-207(1) further states the following: “The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion, or request of another court.”

¶ 12. In this instance, Judge Mask determined the following:

Based upon the length of time the children have resided in Canada, which was anticipated in the parties’ divorce agreement previously approved herein, the Court finds Ontario has become their home state for purposes of application of the UCCJEA herein, and that Ontario has become the more convenient forum for determination of their custody.

Judge Mask further noted Hersey’s failure to object during the telephonic hearing when she recognized the Ontario court as the proper forum for determination of issues regarding custody and visitation. Judge Mask further stated, “It was undisputed in the telephonic conference this Court should recognize the Ontario court as the proper forum, and because of the unique circumstances in this case, should enter an order reciprocating the child visitation ... arrangements coordinated in the Ontario court to facilitate [Hersey’s] access to the children.” Upon review of the record and Judge Mask’s detailed findings, we can find no error in her decision that the Ontario court was the proper forum to determine custody issues.

¶ 13. Hersey further argues Grat-ton submitted to the Alcorn County Chancery Court’s jurisdiction; thus, jurisdiction was only proper in Alcorn County. However, as previously stated, section 93-27-207(1) states that “[t]he issue of inconvenient forum may be raised upon motion of a party, the court’s own motion, or request of another court.” From a close reading of the record, it appears both parties, Judge Mask, and Justice Desotti came to an agreement regarding jurisdiction— namely that the Ontario court was the proper forum. This argument is without merit.

¶ 14. Hersey also contends Judge Mask based her opinion on facts not in evidence. Hersey claims Judge Mask relied upon orders from the Ontario court that were not introduced into evidence or certified. However, these orders Hersey complains of were filed as exhibits with his petitions for relief. Additionally, these orders were marked for identification and received into evidence during the hearing before Judge Mask on February 22, 2012. This argument is without merit.

II. GAL

¶ 15. Hersey argues the GAL failed to properly represent the children’s interest. The record does not contain a final report from the GAL, nor does it indicate there was a final report issued by the GAL. However, Hersey did not raise this issue before the chancellor, and he is procedurally barred from asserting it for the first time on appeal. See Wilburn v. Wilburn, 991 So.2d 1185, 1191 (¶ 14) (Miss.2008).

¶ 16. THE JUDGMENT OF THE AL-CORN COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: FAIR, J.,

text:
    Jeffrey RIVERS a/k/a Jefferey J. Rivers, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00509-COA.
    Court of Appeals of Mississippi.
    April 22, 2014.
    Jeffrey Rivers, appellant, pro se.
    Office of the Attorney General by Elliott George Flaggs, attorney for appellee.
    Before IRVING, P.J., BARNES and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. On November 18, 2008, Jeffrey Rivers appeared in Hinds County Circuit Court and pled guilty to cocaine possession under Mississippi Code Annotated section 41-29-139 (Rev.2013). The court sen-fenced Rivers to eight years, with eight years suspended and five years’ supervised probation. On March 15, 2012, the court revoked Rivers’s suspended sentence and ordered him to serve the remaining four years of his suspended sentence in the custody of the Mississippi Department of Corrections.

¶2. Rivers filed his motion for post-conviction relief (PCR) on December 17, 2012. His motion was summarily dismissed on February 27, 2013. Rivers now appeals the dismissal of his PCR motion, claiming that he received an illegally lenient sentence in 2008. Finding this issue time-barred, we affirm the judgment of the circuit court.

STANDARD OF REVIEW

¶ 3. The circuit court may summarily dismiss a PCR motion without an evi-dentiary hearing “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Supp.2013). To succeed on appeal, the movant must: (1) make a substantial showing of the denial of a state or federal right, and (2) show that the claim is procedurally alive. Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss.1999).

¶ 4. When reviewing the dismissal of a PCR motion, an appellate court “will not disturb the [circuit] court’s factual findings unless they are found to be clearly erroneous.” Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008) (citations omitted). Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Young, 731 So.2d at 1122 (¶ 9).

DISCUSSION

¶ 5. Rivers now argues that he received an illegally lenient sentence in 2008 because, as a previously convicted felon, he was prohibited from receiving both a suspended sentence and supervised probation. See Miss.Code Ann. § 47-7-33 (Rev.2011).

¶ 6. Rivers pled guilty, so he had three years from the entry of the judgment of his conviction to file a PCR motion pursuant to Mississippi Code Annotated section 99-39-5(2) (Supp.2013). Claims made outside of the three-year statute of limitations generally must raise one of the exceptions found in section 99-39-5(2)(a)-(b). “Accordingly, we must look to see whether an exception to [the] procedural bar[ ] applies. The movant bears the burden of showing he has met a statutory exception.” Bell v. State, 95 So.3d 760, 763 (¶ 10) (Miss.Ct.App.2012) (citation omitted).

¶ 7. “[E]rrors affecting fundamental constitutional rights, such as the right to a legal sentence, may be excepted from procedural bars which would otherwise prevent their consideration.” Ivy v. State, 731 So.2d 601, 603 (¶ 13) (Miss.1999) (citing Luckett v. State, 582 So.2d 428, 430 (Miss.1991)). However, “[i]t is a fundamental concept of our justice system that one cannot complain of an alleged error in the law if that person has not been injured by the error.” Williams v. State, 802 So.2d 1058, 1061 (¶ 6) (Miss.Ct.App.2001) (citation omitted).

¶ 8. Our supreme court has held that a defendant suffers no prejudice from a sentencing error that benefits him by giving him a more lenient sentence. Sweat v. State, 912 So.2d 458, 461 (¶ 9) (Miss.2005). Moreover, a defendant “cannot stand mute when he is handed an illegal sentence which is more favorable than what the legal sentence would have been, reap the favorable benefits of that illegal sentence, and later claim to have been prejudiced as a result[.]” Graves v. State, 822 So.2d 1089, 1091 (¶8) (Miss.Ct. App.2002) (citing McGleachie v. State, 800 So.2d 561, 568 (¶4) (Miss.Ct.App.2001)).

¶ 9. Rivers has suffered no prejudice from his illegally lenient sentence. Rather, he has benefitted from it. We find that no relief is warranted in this case. Therefore, we affirm the circuit court’s dismissal of Rivers’s PCR motion.

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

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


author: MURDOCK, Justice.

text:
    Ex parte Jermaine Lavar PARKER. (In re Jermaine Lavar Parker v. State of Alabama).
    1110566.
    Supreme Court of Alabama.
    April 5, 2013.
    R. David McDowell, Huntsville, for petitioner.
    Luther Strange, atty. gen., and John C. Nieman, Jr., deputy atty. gen., and Audrey Jordan, asst. atty. gen., for respondent.
   MURDOCK, Justice.

Jermaine Lavar Parker was convicted of conspiracy to commit a controlled-substance crime (the unlawful distribution of cocaine), a violation of Ala.Code 1975, § 13A-12-204, and of obstructing governmental operations, a violation of Ala.Code 1975, § 13A-10-2. This Court granted certiorari review to consider whether the decision of the Alabama Court of Criminal Appeals, affirming the convictions by an unpublished memorandum, conflicts with Ex parte Williams, 468 So.2d 99, 101 (Ala.1985), overruled on other grounds, Ex parte Carter, 889 So.2d 528 (Ala.2004), regarding the sufficiency of the evidence to support Parker’s conviction for conspiracy to commit a controlled-substance crime. Parker v. State (No. CR-10-0833, Dec. 16, 2011), 120 So.3d 1242 (Ala.Crim.App.2011) (table). This Court denied certiorari review as to Parker’s conviction for obstructing governmental operations.

Facts

The evidence at trial showed the following. On December 16, 2008, Officers Blake Dean and Tony Shivers of the Huntsville Police Department were dispatched to investigate two suspicious vehicles parked near each other behind a LongHorn Steakhouse restaurant; one of the vehicles was a white Nissan Maxima. Although only one of the vehicles was occupied, the engines in both vehicles were running. Officer Dean and Officer Shivers approached the white Maxima (belonging to Parker’s wife) and saw Parker in the driver’s seat and a man later identified as Terrence Corbett in the passenger’s seat. Officer Dean testified that, as he and Officer Shivers approached the vehicle, Parker began “[r]eaching down and around [and] across” in the car. Officer Dean testified that he opened the driver’s door and told Parker to get out of the vehicle. However, according to Officer Dean, Parker “immediately yelled, no, and slammed the door, almost slamming [Officer Dean’s] right hand in the door.” Officer Dean stated that Parker continued to reach around between the seat and the center console. Officer Dean then drew his weapon and ordered Parker out of the car, and Parker complied. Once Parker was out of the vehicle, Officer Dean placed him under arrest for obstructing governmental operations.

The officers saw money in Parker’s car in bundles of $100 each. The money, which totaled $2,115, was located in several areas in the car, including the driver’s seat, the floorboard, and the center console. Subsequently, police searched Cor-bett’s vehicle and found in the backseat area a bag containing seven smaller bags, three of which contained cocaine and four of which contained marijuana. The officers also found a set of digital scales with these bags.

A short time after Parker’s arrest, Officer Gary Trampas and a trained police dog arrived at the scene. The dog exhibited an “odor response” at the driver’s seat of Parker’s car and in the backseat of Cor-bett’s car where the drugs had been recovered. With respect to both vehicles, the dog did not exhibit the “odor indication” that signifies that he had actually found drugs. Police did not find any drugs in Parker’s car or on Parker’s person and did not find any drug paraphernalia, weapons, scales, or records or notations of drug transactions.

Officer Jimmy Anderson, a narcotics agent with the Huntsville Police Department, testified that he responded to the scene of the arrest and saw the cocaine and marijuana that had been seized from Corbett’s car: approximately 7 grams of cocaine and approximately 21 grams of marijuana. Officer Anderson testified (1) that he considered the amount of cocaine found to be a “distribution amount,” (2) that the street value of the cocaine would be between $200 and $400, and (3) that the street value of the marijuana would be between $300 and $700. Officer Anderson testified that the value of the drugs was clearly less than the $2,115 found in Parker’s car.

Officer Shivers testified that Corbett told him during the incident that he and Parker “were talking” when the officers approached the vehicle. No other evidence of any statement by Parker or Cor-bett was presented during the State’s case.

Standard of Review

In Ex parte Mauricio, 523 So.2d 87, 91 (Ala.1987), this Court discussed the test for reviewing the sufficiency of the evidence in a criminal case:

“ ‘In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably] find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude....’”

Id. (quoting Cumbo v. State, 368 So.2d 871, 874 (Ala.Crim.App.1978)).

Legal Analysis

Parker was convicted of violating § 13A-12-204, which provides, in pertinent part: “(a) A person is guilty of criminal conspiracy to commit a controlled substance crime if he engages in the conduct defined in Section 13A-4-3(a), and the object of the conspiracy is a controlled substance crime.” Section 13A-4-3(a), Ala. Code 1975, provides:

“A person is guilty of criminal conspiracy if, with the intent that conduct constituting an offense be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one or more of such persons does an overt act to effect an objective of the agreement.”

The controlled-substance crime that was the object of the alleged conspiracy was the distribution of cocaine in violation of Ala.Code 1975, § 13A-12-211, which states: “A person commits the crime of unlawful distribution of controlled substances if, except as otherwise authorized, he or she sells, furnishes, gives away, delivers, or distributes a controlled substance enumerated in Schedules I through V.” The Court of Criminal Appeals has held that “[s]ection 13A-12-211 does not include ‘purchasing’ or ‘receiving’ a controlled substance in its proscribed activities.” Tyler v. State, 587 So.2d 1238, 1242 (Ala.Crim.App.1991).

Parker’s indictment specifically alleged that Parker “agree[d] with ... Corbett to sell cocaine to [Corbett],” and that Parker “did an overt act to effect an object of the agreement, to wit; meet with [Corbett] in the parking lot of Longhorn Steakhouse to sell him cocaine.” Parker’s indictment did not allege that Parker agreed to buy cocaine from Corbett, and it did not allege that the conspiracy involved the sale or distribution of marijuana.

Thus, to convict Parker, the State was required to prove beyond a reasonable doubt (1) that Parker agreed with Corbett, (2)to sell or distribute cocaine to Corbett, and (3) that Parker or Corbett did an overt act in support of the conspiracy.

This Court granted certiorari review to consider whether the decision of the Court of Criminal Appeals in its unpublished memorandum conflicts with Williams, which held:

“ ‘While a jury is under a duty to draw whatever permissible inferences it may from the evidence, including circumstantial evidence, mere speculation, conjecture, or surmise that the accused is guilty of the offense charged does not authorize a conviction. A defendant should not be convicted on mere suspicion or out of fear that he might have committed the crime. While reasonable inferences from the evidence may furnish a basis for proof beyond a reasonable doubt, mere possibility, suspicion, or guesswork, no matter how strong, will not overturn the presumption of innocence.’ ”

Williams, 468 So.2d at 101 (quoting Thomas v. State, 363 So.2d 1020, 1022 (Ala.Crim.App.1978) (emphasis added; citations omitted)).

A conspiracy need not be proven by direct and positive evidence but may be proven by circumstantial evidence. Jones v. State, 27 So.3d 595, 599 (Ala.Crim.App. 2008). Conviction may not be based, however, on “mere speculation, conjecture, or surmise.” Williams, 468 So.2d at 101. As this Court stated in Mauricio, where a conviction depends on circumstantial evidence, that “[cjircumstantial evidence must not only be consistent with guilt, but must also be inconsistent with any rational hypothesis of innocence.” 523 So.2d at 93. See also Jones v. State, 90 Ala. 628, 630, 8 So. 383, 384 (1890) (“If the evidence raises a mere suspicion, or, admitting all it tends to prove, defendant’s guilt is left in uncertainty, or dependent upon conjecture , or probabilities, the court should instruct the jury to acquit.”); Ex parte Smiley, 655 So.2d 1091, 1094 (Ala.1995).

The State presented the testimony of four police officers as to what they saw and heard at the crime scene. The State presented no direct evidence that Parker had' ever sold drugs and no direct testimony as to what Parker and Corbett were doing in the vehicles on the night they were arrested, other than Corbett’s statement to Officer Shiver that they “were talking.” The evidence, in the light most favorable to the State, shows: (1) that the police found marijuana, cocaine, and a digital scale in a bag on the backseat of Cor-bett’s vehicle (but no evidence linking those drugs to Parker); (2) that there was $2,115 in cash in Parker’s vehicle, arranged in bundles of $100 and placed in several locations in the front seat area of the vehicle; (3) that the police dog exhibited an odor response in Parker’s car (but that no drugs were found in Parker’s car or on his person); and (4) that Parker reacted angrily and suspiciously when the police arrived.

This evidence does not link Parker to the particular drugs in Corbett’s car, except through surmise, speculation, and conjecture. No drugs or other items commonly associated with the sale of illegal drugs were found in Parker’s car or on his person. The drugs found were found in Corbett’s car, and nothing links those drugs to Parker (the State did not present any evidence of Parker’s fingerprints on the drugs found in Corbett’s car or any explanation for the absence of the same). It is suspicious that Parker had $2,115 in $100 bundles scattered about the inside of his car. The possession of this money may well suggest some sort of drug-related transaction by Parker at some point. It does not, however, provide sufficient evidence from which a jury could conclude beyond a reasonable doubt that Parker had a connection to the particular drugs found in Corbett’s car.

Even if we were to assume, however, that the presence of the money in Parker’s car was a sufficient basis for a jury to find beyond a reasonable doubt that Parker had a connection to the particular drugs found in Corbett’s car, the State still did not prove that Parker committed the crime charged — conspiracy to sell cocaine. See Ex parte Washington, 448 So.2d 404, 407 (Ala.1984) (“The person accused of a crime is required at trial to answer only the specific charge contained in the indictment.”). The evidence is consistent with each of several hypotheses: the State’s hypothesis that Parker had already sold the cocaine to Corbett and Corbett had already paid him; the hypothesis that Parker was about to buy drugs from Corbett (a crime not alleged in the indictment); and the hypothesis that the drugs were Corbett’s and had nothing at all to do with Parker. The speculative nature of the evidence in this case is illustrated by the uncertainty expressed in the Court of Criminal Appeals’ unpublished memorandum: “A jury could have determined that Corbett and Parker had exchanged [which would mean that Parker was the seller], or were about to exchange [which would make Parker the buyer] money for the cocaine.” (Emphasis added.) As it is, we are left to guess as to what, if anything, had happened or was about to happen.

The degree to which this case is based on speculation and conjecture is further illustrated by the following passage from the Court of Criminal Appeals’ unpublished memorandum:

“Parker points out in his brief that the amount of money found in the car exceeded the estimated street value of the drugs seized from Corbett’s vehicle. However, there was also testimony from Officer Anderson that, based on his experience in investigating drug deals, the extra money could have been a debt from a previous transaction.”

(Emphasis added.)

“ ‘[A] prisoner, charged with a felony, should not be convicted on circumstantial evidence, unless it shows by a full measure of proof that the defendant is guilty. Such proof is always insufficient, unless it excludes, to a moral certainty, every other reasonable hypothesis, but that of the guilt of the accused. No matter how strong the circumstances, if they can be reconciled with the theory that some other person may have done the act, then the defendant is not shown to be guilty, by that full measure of proof which the law requires

Williams, 468 So.2d at 101 (quoting Ex parte Acree, 63 Ala. 234 (1879)). This standard has not been met in this case.

Conclusion

Based on the foregoing, we reverse the judgment of the Court of Criminal Appeals affirming the conviction of the charge of conspiracy and remand the case to that court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and STUART, BOLIN, PARKER, MAIN, WISE, and BRYAN, JJ., concur.

      . Officer Trampas testified that the dog was trained to detect several common drugs, including both cocaine and marijuana. Because no drugs were found in Parker's car, it cannot be determined to what drug, if any, the dog was responding when he exhibited a response to Parker’s car.

      . Corbett testified for the defense that he worked as a cook at the LongHorn Steakhouse restaurant where the arrest occurred. He and Parker were former teammates on a high school football team but had not seen each other for some time. When Parker visited the restaurant on the night of the arrest, Corbett suggested that they visit after his shift ended. Corbett also testified that he had sold drugs, but he declined to name his supplier, other than to say that it was not Parker. Corbett testified that Parker had no connection to the drugs in Corbett’s car.

      . The jury instructions required the State to prove that Parker "did in his own person or through the direction of another, sell, furnish, give away, deliver or distribute a controlled substance, namely cocaine.”

      . The State also presented forensic evidence establishing that the drugs seized from Cor-bett's car were cocaine and marijuana and evidence of Corbett’s guilty plea to the offense of possession of marijuana arising out of this incident.

      . We note that Corbett was the person with the scales, a fact that is at least consistent with the notion that Corbett was a seller. Further, the State presented no evidence of fingerprints or other direct evidence that Parker had ever had possession of the bags found in Corbett's car or that Corbett had ever had possession of the money found in Parker's car.


author: BURKE, Judge.

text:
    Jermaine Lavar PARKER v. STATE of Alabama.
    CR-10-0833.
    Court of Criminal Appeals of Alabama.
    July 12, 2013.
    R. David McDowell, Huntsville, for appellant.
    Luther Strange, atty. gen., and Audrey K. Jordan, asst. atty. gen., for appellee.
   After Remand from the Alabama Supreme Court

BURKE, Judge.

Based on the Alabama Supreme Court’s holding in Ex parte Parker, 136 So.3d 1092 (Ala.2013), Jermaine Lavar Parker’s conviction for conspiracy to commit a controlled-substance crime is reversed and a judgment rendered in favor of Parker.

REVERSED AND JUDGMENT RENDERED.

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


author: WINDOM, Presiding Judge.

text:
    Joey Lee RIGSBY v. STATE of Alabama.
    CR-11-1279.
    Court of Criminal Appeals of Alabama.
    July 12, 2013.

      Lisa M. Ivey, Jasper, for appellant.
    Luther Strange, atty. gen., and John J. Davis, Montgomery, for appellee.
   WINDOM, Presiding Judge.

Joey Lee Rigsby appeals his convictions of three counts of sexual abuse of a child less than 12 years old, see § 13A-6-69.1, Ala.Code, 1975, and 2 sentences of 20 years in prison to run concurrently and 1 sentence of 20 years in prison to run consecutively with the other sentences.

The State presented evidence indicating that before December 1, 2008, Rigsby had, for many years, been good friends with Do.G. and A.G., the parents of Da.G. and J.G. On December 1, 2008, Rigsby, who was over the age of 16, went to Do.G. and A.G.’s house. While there he asked Do.G. if he could sleep at their house that night. It was not unusual for Rigsby to spend the night at Do.G. and A.G.’s home, and Do.G. allowed him to do so that night.

At some point in the evening, J.G., who was less than 12 years old, went to bed in the top bunk of a bunk bed in the bedroom he shared with Da.G., who was also less than 12 years old. Shortly thereafter, Da.G. went to bed, getting into the bottom bunk of the same bunk bed. Within a few minutes of Da.G. going to bed, Rigsby came into the bedroom. After entering the room, Rigsby fondled and sodomized both J.G. and Da.G.

After school the next day, Da.G. and J.G. told A.G. what had happened the night before. A.G. contacted Do.G., who came home early from work. After Do.G. spoke with Da.G. and J.G., Do.G. and A.G. talked about the situation. The following morning, A.G. contacted law enforcement to report what had happened.

On appeal, Rigsby argues, among other things, that during rebuttal closing argument, the State improperly commented on his failure to incriminate himself and that the circuit court erroneously refused to give a curative instruction regarding the State’s comment. During the State’s rebuttal closing argument, the following statement was made:

“Since I first heard about [Da.G. and J.G.] and struggling with [Rigsby’s] betrayal of this family, I’ve been thinking about one question myself: Why? Why did [Rigsby] do it? Why did he do this to these little boys? And why did he lie about doing it? Why didn’t he just admit what he done [sic] and give these boys some peace?”

(R. 1124-25.)

Defense counsel immediately objected and gave the following specific reasons as the basis of the objection:

‘Tour Honor, that is a direct comment on [Rigsby] not offering any testimony in this case; not giving a statement to the police, not incriminating himself. He chose not to testify. That is a violation of the law, Your Honor. It is a mistrialable [sic] offense, mistrial and render this case — I move for a mistrial and that all charges be dismissed against my client.”

(R. 1126.) When asked by the circuit court for a response, the State said:

“Judge, I do need that statement read back. As I was explaining it, that is not in anyway what I remember saying. I did say, why — while I was thinking of it I thought why didn’t [Rigsby] admit to give these boys some peace, not why didn’t he take the stand, not why didn’t he make a statement, nothing to that effect.”

(R. 1126.)

The circuit court denied Rigsby’s motion for a mistrial and asked defense counsel if he wanted a curative instruction. Defense counsel had the complained-of portion of the State’s rebuttal read back by the court reporter and then told the circuit court that Rigsby had “never made a statement at all.” (R. 1128.) The circuit court replied:

“It’s argument. It’s argument. This definitely doesn’t amount to a comment that your client didn’t testify and I don’t think it’s even due a curative statement.”

(R. 1128.) The circuit court again denied the motion for a mistrial and denied a request for a curative instruction.

The State’s argument, “[w]hy didn’t he just admit what he done [sic] and give these boys some peace” (R. 1124-25), was a direct comment on either Rigsby’s failure to testify to his guilt or his failure to plead guilty. In either event, the State improperly commented on Rigsby’s invocation of his “right against self-incrimination.” Ex parte Landrum, 57 So.3d 77, 81 (Ala.2010). Cf. G.E.G. v. State, 54 So.3d 949, 955 (Ala.2010) (“ ‘By pleading guilty, a defendant waives three constitutional rights: the right against self-incrimination, the right to trial by jury, and the right to confront his accusers.’ Heptinstall v. State, 624 So.2d 1111, 1112 (Ala.Crim.App.1993) (citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)).”); United States v. Sherman, 474 F.2d 303, 305 (9th Cir.1973) (“A plea of guilty is the most complete form of self-incrimination.”); People v. Collins, 26 Cal.4th 297, 308, 27 P.3d 726, 733, 109 Cal.Rptr.2d 836, 844 (2001) (recognizing that “the right to plead not guilty ... encompasses the right to jury trial, the right to confront opposing witnesses, and the privilege against self-incrimination”); State v. Corbitt, 74 N.J. 379, 384, 378 A.2d 235, 237 (1977) (recognizing the right “not to incriminate [oneself], as by a plea of guilt (Fifth Amendment) and to have a jury trial should he plead not guilty (Sixth Amendment)” (citing United States v. Jackson, 390 U.S. 570, 583, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968))).

“The Self-Incrimination Clause of the Fifth Amendment [to the United States Constitution] reads: ‘No person ... shall be compelled in any criminal case to be a witness against himself.’ ” Doe v. United States, 487 U.S. 201, 207, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988). Article I, § 6, Alabama Constitution of 1901, provides: “That in all criminal prosecutions, the accused has a right ... to testify in all cases, in his own behalf, if he elects so to do; ... and he shall not be compelled to give evidence against himself .... ” The United States Supreme Court has explained that “[t]he opportunity to testify is also a necessary corollary to the Fifth Amendment’s guarantee against compelled testimony.” Rock v. Arkansas, 483 U.S. 44, 52, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987).

Accordingly, it is well settled “that a prosecutor may not comment on a defendant’s right against self-incrimination .... ” Hereford v. State, 608 So.2d 439, 442 (Ala.Crim.App.1992) (quoting Ex parte Purser, 607 So.2d 301, 304 (Ala.1992)). The rule of law prohibiting the State from commenting on a defendant’s right against self-incrimination bars comments on a defendant’s right not to testify and on his right to plead not guilty. State v. Wiles, 59 Ohio St.3d 71, 88, 571 N.E.2d 97, 118 (1991); see also State v. Landrum, 53 Ohio St.3d 107, 110, 559 N.E.2d 710, 717 (1990).

“Comments by a prosecutor on a defendant’s failure to testify are highly prejudicial and harmful, and courts must carefully guard against a violation of a defendant’s constitutional right not to testify.” Ex parte Brooks, 695 So.2d 184, 188 (Ala.1997). “Where there has been a direct comment on, or direct reference to, a defendant’s failure to testify and the trial court does not act promptly to cure the comment, the defendant’s conviction must be reversed.” Ex parte Purser, 607 So.2d at 304 (citing Ex parte Wilson, 571 So.2d 1251 (Ala.1990)); see also Harrison v. State, 706 So.2d 1323, 1325 (Ala.Crim.App. 1997) (“Where there has been a direct comment on a defendant’s failure to testify or an indirect comment with a close identification of the defendant as the person who did not become a witness and the trial court does not act promptly to cure the comment, the defendant’s conviction must be reversed....” (citations omitted)). Likewise, an improper comment by the State on a defendant’s failure to incriminate himself by pleading guilty may also result in reversible error. Cf. United States v. Smith, 934 F.2d 270, 275 (11th Cir.1991); Villarreal v. State, 860 S.W.2d 647, 649 (Tex.App.1993) (holding the following comment by the State to amount to reversible error: “This man [] made a conscious decision to rape a ten-year-old child. But he didn’t do it just once. He forced her to have to come into this courtroom in front of a bunch of strangers.”). Although comments on a defendant’s right not to incriminate himself by testifying or pleading guilty are improper, “[a] reversal may be prevented if the trial court sustains an objection to the improper remark and promptly and appropriately instructs the jury as to the impropriety of the remark.” Pettibone v. State, 891 So.2d 280, 283 (Ala.Crim.App.2003).

Here, the State’s argument relating to Rigsby’s failure to “admit what he [had] done and give [the victims] some peace” (R. 1124-25), was an improper, direct comment on Rigsby’s right against self-incrimination. Further, the circuit court erroneously failed to sustain Rigs-by’s objection and refused to give a curative instruction. Moreover, the State’s comment was made during rebuttal closing argument; therefore, defense counsel did not have an opportunity to respond to the comment to the jury. United States v. Miller, 621 F.3d 723, 732 (8th Cir.2010). Consequently, the State’s comment resulted in prejudicial error.

Finally, the evidence in this case was not so overwhelming so as to render harmless the prejudicial error. See Rule 45, Ala. RApp. P.; Ex parte Greathouse, 624 So.2d 208, 211 (Ala.1993) (recognizing that prejudicial error could be harmless, when the evidence of the defendant’s guilt is “virtually ironclad”). As such, this Court cannot say that the State’s improper comment was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (holding that before a federal constitutional error can be held to be harmless, the appellate court must be able to declare a belief that it was harmless beyond a reasonable doubt).

Accordingly, Rigsby’s conviction is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

WELCH, KELLUM, BURKE, and JOINER, JJ., concur.