author: BARNES, J.,

text:
    Alvin Renon RILEY a/k/a Alvin Riley, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01145-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2013.

      W. Terrell Stubbs, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, C.J., BARNES, MAXWELL and FAIR, JJ.
   BARNES, J.,

for the Court:

¶ 1. A Walthall County Circuit Court jury convicted Alvin Renon Riley of the sale of less than one hundred dosage units of hydrocodone. He was sentenced to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with six years to serve and the remaining nine years to be suspended for post-release supervision. The trial court denied Riley’s post-trial motion for a judgment notwithstanding the verdict (JNOV), or in the alternative, a new trial. Finding no error, we affirm the circuit court’s judgment on appeal.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. On March 23, 2010, a confidential informant, Michelle Brown, made an undercover purchase of narcotics from Riley. The Southwest Narcotics Enforcement Unit of Walthall County had given Brown $60 to make the controlled buy, and followed her to Riley’s house. Agent Dan Hawn activated the electronic recording device worn by Brown and monitored the situation. Agent Hawn heard the transaction take place and heard Riley say, “$60, that would be 12 pills[,] ... five, six.... ” He also heard the sound of pills rattling in a bottle. Law enforcement met Brown at a pre-arranged location and took custody of the drugs — twelve dosage units of hy-drocodone — for analysis.

¶ 3. Riley was indicted on July 19, 2010, for “willfully, unlawfully, feloniously and knowingly sell[ing] less than one hundred (100) dosage units of hydrocodone, a controlled substance, to one confidential informant, for money ... in violation of [Mississippi Code Annotated sjection 41-29-139[.]” After a two-day jury trial, Riley was convicted, sentenced to fifteen years in the custody of the MDOC; and ordered to serve the first six years with the remaining nine years suspended for post-release supervision. He was also ordered to pay a $5,000 fíne and court costs, and to undergo drug treatment. Riley filed a motion for a JNOV or, in the alternative, a new trial. The trial court denied the motion, and Riley now appeals.

¶4. Finding no error, we affirm the judgment.

ANALYSIS

I. Whether the trial court erred by admitting a video and audio recording into evidence.

¶ 5. During Agent Hawn’s testimony, the State introduced the audio and video recording of the controlled drug buy. Defense counsel objected to the evidence of the recording, claiming that it was hearsay on the part of Agent Hawn, and that there was not a proper predicate laid for admission of the evidence. The State argued:

There is proper predicate in that Agent Hawn is the one who began and ended the surveillance video. He’s also testified that there’s no way that it can be altered or modified during the course of time — based upon the equipment, it cannot be altered or modified while it’s outside of his control.

The trial court agreed, noting that Agent Hawn “testified that he issued it, activated it, and received it,” and overruled the defense’s objection to the admission of the evidence. On appeal, Riley contends that the trial court erred by admitting the recording into evidence, since Agent Hawn was not a party to the transaction and, thus, could not properly authenticate the recording. He argues that Brown was the only witness who was a party to the transaction and could authenticate the recording, but the State failed to have her do so.

¶ 6. A trial court’s admission or exclusion of evidence is reviewed for abuse of discretion. Young v. State, 106 So.3d 811, 815 (¶ 5) (Miss.Ct.App.2011) (citing Catchings v. State, 39 So.3d 943, 950 (¶ 29) (Miss.Ct.App.2009)). Its “decision to admit or exclude evidence will only be reversed if it ‘results in prejudice and harm or adversely affects a substantial right of a party.’ ” Id. (citing Catchings, 39 So.3d at 951 (¶ 34)).

¶ 7. “Authentication of evidence requires the offering party to lay a proper foundation.” Wilson v. State, 775 So.2d 735, 740 (¶ 11) (Miss.Ct.App.2000). Mississippi Rule of Evidence 901(a) provides: “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” One means to authenticate evidence is through the testimony of a witness with knowledge “that a matter is what it is claimed to be.” M.R.E. 901(b)(1).

¶ 8. In Ragin v. State, 724 So.2d 901, 903 (¶ 6) (Miss.1998), the Mississippi Supreme Court found that testimony by a surveillance agent to a drug transaction, where the agent had operated the equipment and had kept the tapes in his custody, was sufficient to authenticate the recording. In the present case, Agent Hawn had exclusive control of the electronic recording at all times during the transaction. Brown was not instructed how to use the equipment; Agent Hawn turned it on prior to the transaction. He then turned it off after the transaction had concluded and Brown had delivered the drugs to law enforcement. At trial, Agent Hawn testified that the recording represented what he overheard as he was conducting surveillance of the drug transaction and that the recording had not been altered or modified in any way. Therefore, we find that Agent Hawn’s testimony was sufficient to lay a proper foundation that the subject matter (the recording of the drug transaction) was what the State purported it to be.

¶ 9. We also find that the recording was properly authenticated through Agent Hawn’s testimony that he was able to identify Riley’s voice. Agent Hawn testified that he had known Riley for over twenty years; they had gone to school together. Under Rule 901, voice identification may be used to authenticate or identify evidence, “whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.” M.R.E. 901(b)(5).

¶ 10. Consequently, we find that the trial court did not abuse its discretion by admitting the recording into evidence.

II. Whether the evidence was insufficient to prove that Riley sold a Schedule II substance under Mississippi Code Annotated section 41-29-115 (Rev.2009) and whether his conviction was against the overwhelming weight of the evidence.

¶ 11. The indictment charged Riley with the sale of “less than one hundred (100) dosage units of hydrocodone, a controlled substance,” for which he was convicted. The indictment did not specify whether the drug was a Schedule II or Schedule III substance. Hydrocodone is a Schedule II controlled substance. See Miss.Code Ann. § 41-29-115(A)(a)(l)(vi) (Rev.2009). Riley asserts that the State “wholly failed to prove that Riley sold less than one hundred dosage units of pure hydrocodone, which is specifically listed as a Schedule II controlled substance!.]” (Emphasis added). He avers, instead, that the evidence merely proved that the substance was 500 mg of acetaminophen and only 10 mg of hydrocodone, which is a Schedule III substance under Mississippi Code Annotated section 41-29-117(A)(e)(4) (Rev.2009).

¶ 12. A motion for a JNOV challenges the sufficiency of the evidence. Jenkins v. State, 101 So.3d 161, 165 (¶ 12) (Miss.Ct.App.2012) (citing McBride v. State, 61 So.3d 174, 183 (¶ 29) (Miss.Ct.App.2010)). If after viewing all credible evidence in the light “most favorable to the State[,] ... the evidence shows beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[,]” then the evidence will be deemed legally sufficient and the verdict will be upheld. Melton v. State, 118 So.3d 605, 610 (¶ 20) (Miss.Ct.App.2012) (citing Knight v. State, 72 So.3d 1056, 1063 (¶ 24) (Miss.2011)). On the other hand, “[a] motion for a new trial challenges the weight of the evidence.” Id. at 609 (¶ 17) (citing Knight, 72 So.3d at 1064 (¶ 31)). We “will not disturb a jury’s verdict unless it ‘is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.’ ” Id. at 610 (¶ 17) (citation omitted).

¶ 13. In denying Riley’s post-trial motion, the trial judge stated: “I don’t find the failure to contain the schedule to be fatal when the actual drug itself was listed and by reference to the statute which was also listed clearly shows which schedule it would fall under.” The trial court was incorrect in one respect. The indictment does not list the specific statute (either section 41-29-115 or 41-29-117). Rather, the indictment listed Mississippi Code Annotated section 41-29-139 (Rev.2009), the statute for the crime of possession of a controlled substance.

¶ 14. Nevertheless, we find no merit to Riley’s argument. The indictment did not state that Riley possessed “pure hydroco-done” as he claims. Furthermore, this Court has observed that “[hjydrocodone is the narcotic component of Lortab[,J” making it a Schedule II substance. Conlee v. State, 23 So.3d 535, 540 (¶ 16) (Miss.Ct.App.2009) (citing Rushing v. State, 711 So.2d 450, 452 (¶ 5) (Miss.1998)). The tablets admitted into evidence contained hy-drocodone; therefore, the State did provide sufficient evidence to support the charges in the indictment. The evidence showed that Riley sold generic Lortab containing 10 mg of hydrocodone and 500 mg of acetaminophen.

¶ 15. Moreover, the record reflects that Riley was convicted and sentenced for possession of a Schedule III substance, not a Schedule II substance. At trial, the forensic specialist from the Mississippi Crime Laboratory testified that the pills were “[hjydrocodone with acetaminophen, 10 milligrams of hydrocodone, 500 milligrams acetaminophen.” She also testified that the drug in question was a Schedule III substance. The State made no objection or attempt to classify the drug as a Schedule II controlled substance. At the sentencing hearing, the trial judge noted that the maximum sentence for the conviction was twenty years and a fine of $250,000, which is the maximum penalty for a Schedule III or IV substance. See Miss.Code Ann. § 41 — 29—139(b)(4). It is also evident that Riley was not given the maximum sentence. Consequently, he suffered no prejudice from the failure to identify in the indictment whether he was being charged with the sale of a Schedule II or Schedule III drug.

¶ 16. Accordingly, we find that the evidence was legally sufficient to support Riley’s conviction and that the verdict was not against the overwhelming weight of the evidence.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF WALTHALL COUNTY OF CONVICTION OF THE SALE OF LESS THAN ONE HUNDRED DOSAGE UNITS OF HYDRO-CODONE AND SENTENCE OF FIFTEEN YEARS, WITH SIX YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND THE REMAINING NINE YEARS SUSPENDED FOR POST-RELEASE SUPERVISION, AND TO PAY A $5,000 FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


source: Caselaw Access Project

license: Public Domain

text:
    Rashaud DAY a/k/a Rashad Day a/k/a Rashud Day a/k/a Rushed Day a/k/a Roshaud D. Day a/k/a Roshaud Day a/k/a Rashard Day, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00866-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2013.

      Adrienne Annett Hooper-Wooten, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   BARNES, J.,

for the Court:

¶ 1. A Holmes County jury convicted Rashaud Day of murder. He was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC). Day now appeals, claiming the verdict was against the sufficiency and weight of the evidence. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. During the afternoon of April 12, 2011, after smoking a marijuana “blunt” and “just chilling,” Cortney Coleman and his friend Hildrey Glover (a.k.a. “One-Eyed-Poo” or “Poo”) drove to Pickens, Mississippi, to get something to eat. While in Pickens, they decided to go to the house of Terry Brown (a.k.a. “Milk”). There, a few men were sitting under some trees. Cortney and Hildrey decided to get out of their vehicle and socialize. Both men were unarmed. Hildrey rolled another blunt, and Cortney walked over to a table and began playing dominoes with an individual known as “Fruit Loop.” Hildrey and Zera Harmon (Milk’s cousin) sat at the table and watched. Cortney, Hildrey, and Zera were all smoking a blunt. Zera was also drinking alcohol.

¶ 3. While Cortney played dominoes, Day ran up behind him and shot him in the back with a sawed-off 20-gauge shotgun. Day kept running and left the scene. Zera, Fruit Loop, and Hildrey all witnessed the shooting. Hildrey said he heard Day say, “I told [you] I was gonna get him,” as he shot Cortney. Day’s brother, Cortez, also witnessed the shooting. He said his brother’s demeanor was “the same” as usual while shooting Cort-ney. Cortney died soon after his arrival at the hospital. Later that day, Day turned himself in to law enforcement and gave a statement admitting he sneaked up behind Cortney and shot him. Cortney’s autopsy showed he died from a close-range shotgun wound to his back, which caused massive lacerations to Cortney’s heart and lungs.

¶4. None of the eyewitnesses to Cort-ney’s murder saw any confrontation between Cortney and Day on the day of the killing. Hildrey and Cortez testified that Cortney may not have seen Day on the premises. Zera, however, testified that after Cortney got out of his vehicle, he went and stood near Day and spoke to him, but she could not hear what was said. Zera and Cortez also testified that they had never seen Cortney at Milk’s residence before, but that Day went there quite often. Zera was also concerned about Cortney and Hildrey’s arrival at the social gathering because she had heard on the streets that Cortney and Day had “beef.”

¶5. During the three-day trial, there was evidence presented that Cortney had attempted to shoot Day on two prior occasions. Chief Joe Davis, who took Day’s statement after the murder, testified that Day told him the reason he shot Cortney was because Cortney had previously shot him in the head. Medical records were entered into evidence that Day had indeed gone to the hospital for a gunshot wound to the back of the head on February 28, 2011. Dr. Frank Brown treated Day, who had come into the emergency room complaining of pain to the back of the head as a result of being shot. No bullet entered Day’s skull, and Dr. Brown determined Day’s injury was not life threatening. Dr. Brown’s medical notes stated that Day claimed the shooting occurred at a housing complex in Pickens, and law enforcement had been called to the scene. However, Day never implicated Cortney in the shooting until after he had killed Cortney.

¶ 6. Additionally, Callisha, Day’s sister, claimed that the month before the murder she overhead Cortney say he was “gunna kill” Day “and stuff like that.” She also knew about Cortney’s shooting Day because she had helped take Day to the hospital. One of Day’s cousins testified that he, Day, Cortez, and another individual were in Fruit Loop’s vehicle the evening of the first shooting. Cortney pulled up in a vehicle, and then backed off. Minutes later, they heard a gunshot that was fired toward their vehicle from behind.

¶ 7. Cortez also testified about another shooting incident possibly involving Cort-ney and Day prior to that date. Cortez claimed he was at the store with Day and Day’s son when Cortez saw a couple of guys, and then heard a gunshot; so he took Day’s little boy and ran. Cortez thought he saw Cortney during the incident. Cortez further testified that he was afraid Cortney and his friends were going to kill Day.

¶ 8. Day chose not to testify in his defense. Jury instructions were given on both murder and manslaughter. The jury found Day guilty of murder, and he was sentenced to life imprisonment. Day timely appealed.

ANALYSIS

¶ 9. Day argues that the jury verdict was against the sufficiency and weight of the evidence. For a challenge to the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Nolan v. State, 61 So.3d 887, 893 (¶ 24) (Miss.2011) (quoting Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)). “The evidence will be deemed sufficient if, bearing in mind the reasonable-doubt standard, ‘reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense.’ ” Id. All credible evidence consistent with guilt will be accepted as true. McClain v. State, 625 So.2d 774, 778 (Miss.1993).

¶ 10. Regarding a challenge to the weight of the evidence, the reviewing court will not disturb the verdict unless allowing “it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). The evidence will be viewed in the light most favorable to the verdict. Id. It is the jury’s role to assess the weight and credibility of the evidence and to resolve any conflicts in the evidence. Latiker v. State, 918 So.2d 68, 73 (¶ 12) (Miss.2005).

¶ 11. Day argues that he did not have the requisite mental state at the time of the shooting to constitute “premeditated murder.” He claims the previous attempts and prior threats by Cortney to injure Day provide lawful justification, or a legal excuse, which should mitigate his offense from murder to manslaughter. Day further contends the murder element of “malice aforethought” was unmet — because he did not know Cortney was attending the social gathering, he could not have “plotted” to kill Cortney, nor was there any other evidence he planned to kill Cort-ney.

¶ 12. The definition of murder is “[t]he killing of a human being without authority of law by any means or in any manner ... [w]hen done with deliberate design to effect the death of the person killed, or of any human being....” Miss.Code Ann. § 97-3-19(l)(a) (Supp.2013). A jury instruction was given that Day “unlawfully, willfully, feloniously, and without authority of law, and of his malice aforethought,” killed Cortney by shooting him. Over the objection of the State, a jury instruction was also given for the lesser crime of manslaughter, as well as a jury instruction defining “heat of passion.”

¶ 13. The eyewitnesses to the murder maintain that Day walked up behind the victim, unprovoked, and shot him in the back. The evidence fulfills the required element of “malice aforethought” or “deliberate design.” Cortney was unarmed; there was no case for self-defense. Cortez testified that his brother’s demeanor was “the same” when he shot Cortney; he was not in a heightened emotional state. The only evidence of interaction between Day and Cortney the day of the murder came from Zera’s testimony: she stated that they stood beside one another, and Cort-ney may have said something to Day. Regarding the previous alleged acts of violence by Cortney against Day, a two-month “cooling off period” cannot be considered an “immediate” act of provocation for manslaughter. The jury considered the lesser crime of manslaughter, and rejected it.

¶ 14. Day bases his argument on Day v. State, 589 So.2d 637 (Miss.1991), where the Mississippi Supreme Court reversed a defendant’s conviction for murder because the victim’s prior threats against the defendant should have been admitted into evidence to show the defendant’s state of mind at the time of the killing, which is an essential factor in determining whether a homicide is murder or manslaughter. Id. at 644. However, Day is distinguishable, as that case was reversed due to the improper exclusion of evidence. Id. Here, there was no improper exclusion of any evidence, including prior threats or Day’s state of mind. In fact, Day’s case-in-chief mainly consisted of testimony regarding Cortney’s alleged prior acts, and Day’s alleged state of mind because of them.

¶ 15. We cannot say, taking the evidence presented in the light most favorable to the State, that the jury erred in finding Day guilty of murder. We also find that in analyzing the evidence in the light most favorable to the verdict, allowing the verdict to stand does not sanction an unconscionable injustice. The weight of the evidence supporting the verdict was substantial.

¶ 16. THE JUDGMENT OF THE HOLMES COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HOLMES COUNTY.

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

      . The defense tried to show that the reason Cortney previously shot Day was because Cortney's cousin was killed by Day’s relative on the day of the first shooting.

      . The Mississippi Supreme Court has held that "malice aforethought" and "deliberate design” have the same meaning. Hawthorne v. State, 835 So.2d 14, 19 (¶ 21) (Miss.2003) (citing Tran v. State, 681 So.2d 514, 516 (Miss.1996)).

      . "Manslaughter" is defined as "[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense. ..." Miss.Code Ann. § 97-3-35 (Rev. 2006).

      . The Mississippi Supreme Court has defined "heat of passion” as:
      [A] state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.

        Tait v. State, 669 So.2d 85, 89 (Miss.1996) (quoting Buchanan v. State, 567 So.2d 194, 197 (Miss.1990)). A jury instruction was given in this case that stated the same.


author: MAXWELL, J.,

text:
    Laura LANE-LOTT, Appellant v. Harold WHITE and Anne Borgen White, Appellees.
    No. 2012-CA-01033-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2013.
    Alexander Ignatiev, attorney for appellant.
    G. Gerald Cruthird, Picayune, Peggy Hirschey-Williams, attorneys for appel-lees.
   MAXWELL, J.,

for the Court:

¶ 1. This appeal involves the mysterious disappearance and mistaken identity of a horse. Claiming she had not received the pregnant quarter horse she had bargained for, Laura Lane-Lott sued the man with whom she had traded her horse, as well as the two people who brokered the trade.

¶ 2. The circuit court dismissed her claims for fraud and damages under the Uniform Commercial Code (UCC) at the close of her presentation of the evidence. After review, we find the circuit court reached the right result, but for a slightly different reason than cited by the judge.

¶ 3. The circuit court found there had been a “mutual mistake” between the parties, which could have led to reformation of the trade agreement. But because reformation was impossible due to the uncoop-erativeness of Laura and the sale, loss, or destruction of the horses involved, Laura was not entitled to any remedy for the mistake. The circuit court also found she failed to prove any fraud.

¶ 4. We agree there had been a mutual mistake. But the mistake was not in the drafting of the contract, justifying the remedy of contract reformation. Rather, the mistake was a mutual mistake of fact concerning the identity and existence of the subject matter of the contract — the pregnant quarter horse. And when this type of mistake occurs, under both the common law and UCC, the contract is void. While Laura may have been entitled to be put back in the same place she was before the trade — an offer she refused— she was not entitled to any monetary damages. Because we also agree she failed to present a prima facie case of fraud, we affirm the judgment dismissing her claims against all three defendants.

Background Facts and Procedural History

¶ 5. Harold White and Anne Borgan White brokered a horse-trading deal between Laura and Gerald Gambrel. In the trade, Laura would swap her quarter-horse mare, Ima Slow Lopin Dream, in exchange for Gerald’s pregnant mare, Kcees Time to Skeik.

¶ 6. But after the swap, and after the mare Laura received gave birth, Laura attempted to register the foal with the American Quarter Horse Association (AQHA), only to learn that the foal did not have the bloodline Laura had desired. The foal’s mother, or “dam,” was not Kcees. Instead, DNA testing revealed that the mare who gave birth was in fact Miss Savannah Steel, a horse that had mysteriously disappeared from Harold’s farm a year before Laura and Gerald’s trade.

¶ 7. Apparently, Miss Savannah and Kcees were both being boarded at Harold and Anne’s farm in 2007. When Gerald came to pick up Kcees, he mistakenly took Miss Savannah instead. But neither he nor Harold and Anne realized the mix-up. In fact, around this same time, Miss Savannah’s owners came to claim her. When she was nowhere to be found, and after diligently searching for her, Harold and Anne paid the owners $600 to compensate for their loss.

¶ 8. Later that year, Gerald returned the mare he thought was Kcees to Harold and Anne’s farm in order to breed her. Knowing Laura wanted to sell her mare, Ima, Harold brokered the deal in which Laura would trade Ima in exchange for Kcees. Laura testified she accepted the offer because she was familiar with Kcees’s bloodline, which in Laura’s estimation made the horse valuable. When the exchange took place, the quarter horse everyone believed to be Kcees was pregnant. She delivered a foal the following spring. It was not until that fall, when Laura attempted to register the foal with the AQHA, that DNA testing excluded Kcees as the foal’s dam. Further testing of the actual dam revealed the horse was in fact Miss Savannah.

¶ 9. According to Harold and Anne, while Laura was vociferous about not receiving Kcees, the quarter horse with the bloodline that she bargain for, she was not very forthcoming about the identity of the horse she actually did receive. She rejected Harold and Anne’s offer to trade her a mare of equivalent value to Ima. Instead, she insisted Harold and Anne pay her $9,000. Harold and Anne refused to pay that amount. So Laura sued them in the Pearl River County Circuit Court. She later added Gerald as an additional defendant. Her main allegation in her complaint was fraud. But she also alleged that the trade was governed by Article II of the UCC and prayed for special, incidental, and consequential damages under the UCC’s provisions.

¶ 10. The case was tried without a jury. At the onset, the parties stipulated that “the horse that [Laura] bargained for was not the horse received.” At the end of Laura’s presentation of the evidence, Harold, Anne, and Gerald moved for an involuntary dismissal under Mississippi Rule of Civil Procedure 41(b). The circuit court granted the motion and entered an order dismissing both of Laura’s claims against all three defendants. Despite the dismissal, the circuit court found Laura was entitled to $398 in damages. But the court also found that she also owed Harold and Anne $398 “for fees and boarding and veterinarian costs.” Because these damages offset, the court found that Laura “shall not receive any damages herein.”

¶ 11. Laura timely appealed, arguing the circuit judge erred when he granted the motion for involuntary dismissal under Rule 41(b). On appeal, we review the grant of the involuntary dismissal under the deferential substantial-evidence/manifest-error standard. Gulfport-Biloxi Reg’l. Airport Auth. v. Montclair Travel Agency, Inc., 937 So.2d 1000, 1005 (¶ 13) (Miss.Ct.App.2006).

Discussion

I. Mississippi Rule of Civil Procedure 41(b)

¶ 12. Rule 41(b) applies in actions, like this one, “tried by the court without a jury,” where the judge is also the fact-finder. When the defendant files a motion to dismiss following the presentation of the plaintiffs evidence, if “after viewing the evidence fairly, ... the judge would find the for defendant,” then the “judge should grant [the] motion for involuntary dismissal[.]” Gulfport-Biloxi Reg’l. Airport Auth., 937 So.2d at 1005 (¶ 13). Stated differently, the judge “must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiffs evidence were all the evidence offered in the case.” Id. at 1004-05 (¶ 13) (quoting Stewart v. Merchs. Nat’l. Bank, 700 So.2d 255, 259 (Miss.1997)).

¶ 13. Here, the circuit judge concluded he was not obliged to find for Laura, based on her evidence. We find no manifest error in this conclusion. The circuit judge found that Laura failed to show Harold, Anne, or Gerald had known that the horse traded for Ima was not Kcees. Instead, the stipulated fact that the horse Laura bargained for was not the horse Laura received was a product of a mutual mistake.

II. Mutual Mistake of Fact

¶ 14. While we defer to the circuit judge’s factual finding of a mutual mistake, we must clarify what type of mistake it was and what effect it had on the contract to trade horses.

¶ 15. The circuit judge characterized the mistake as occurring in the drafting of the sales contract, triggering the remedy of reformation. But he found not only that Harold and Anne’s efforts to reform the contract or mitigate the damages were “not successful” but also that it was “difficult or impossible for such reformation to occur since the subject animals were sold, lost, or destroyed.”

¶ 16. “A contract may be reformed” if there is a mutual mistake. Townsend v. Townsend, 859 So.2d 370, 376 (¶ 21) (Miss.2003) (emphasis added) (quoting Dilling v. Dilling, 734 So.2d 327, 335 (¶ 27) (Miss.Ct.App.1999)). But “[t]he mistake that will justify a reformation must be in the drafting of the instrument,” such as a scrivenor’s error, “not in the making of the contract.” Id. In this case, Laura was not seeking contract reformation — she was seeking contract enforcement. She did not allege or attempt to prove there was an error in the drafting of the sales contract or title to the horse she received. In fact, her whole claim was that the contract and title were right — it was the horse that was wrong.

¶ 17. In other words, Laura was not seeking to change the documents related to the trade to say “Miss Savannah” instead of “Kcees” because the pregnant mare she selected to trade with Gerald turned out to be Miss Savannah. Neither were Harold and Anne claiming the intent was to trade Miss Savannah, even through they all mistakenly referred to the pregnant mare as “Kcees.” Instead, the parties stipulated that “the horse ... bargained for was not the horse received.” So the mistake was not that the contract Laura sought to enforce did not reflect the true bargain. Were that the case, we would agree with the circuit judge that “[t]he remedy for [the] mutual mistake is reformation” — a remedy that is no longer possible. Bert Allen Toyota, Inc. v. Grasz, 909 So.2d 763, 768 (¶ 15) (Miss.Ct.App.2005).

¶ 18. Instead, the mutual mistake was in the identity of the subject matter of the bargain — the horse. This type of mistake is governed by the “doctrine of mutual mistake of fact.” Greer v. Higgins, 338 So.2d 1233, 1236 (Miss.1976). “A mutual mistake (of fact) is one common to both parties to a contract ... wherein each labors under the same misconception respecting a material fact[.] ... The mistake may apply to the nature of the contract, the identity of the person with whom it is made, or the identity or existence of the subject matter[.]” Id. (quoting 17 C.J.S. Contracts § 144, p. 894). And “where both parties at the time of the agreement were operating under a mutual mistake of fact,” the “contract may be set aside.” White v. Cooke, 4 So.3d 330, 334 (¶ 15) (Miss.2009) (citing Greer, 338 So.2d at 1236); see also Greer, 338 So.2d at 1236 (cancelling quitclaim deeds because all parties mistakenly believed the decedent’s property had been transferred by intestate succession, when in fact the decedent had a will).

¶ 19. The facts of this case present a spin on the classic example of a mutual mistake of fact. Were we to go back more than a century and ask a judge or horn-book professor to illustrate mutual mistake of fact, we would likely be given the following scenario: “A. agrees to buy a certain horse from B. It turns out that the horse is dead at the time of the bargain, though neither party was then aware of the fact. The agreement is void.” Riegel v. Am. Life Ins., 153 Pa. 134, 25 A. 1070, 1073 (1893); see also, e.g., Duncan v. N.Y. Mut. Ins., 18 N.Y.S. 863, 864 (1892) (“If A. sells his horse to B., and it turns out that the horse was dead at the time, though the fact was unknown to the parties, the contract is necessarily void[.]”); Ruohs v. Third Nat’l. Bank, 94 Tenn. 57, 28 S.W. 303, 308 (1894) (“A mutual mistake as to an existing fact is unquestionably ground for relief and rescission; as, for instance, if a horse should be the subject-matter of sale, and should be dead when the sale was made, and neither party knew of that fact.”).

¶ 20. Here, Laura agreed buy a certain horse from the Whites, Kcees. While it is unclear whether Kcees had gone to that great pasture in the sky or was just in another earthly pasture at the time of the agreement, what is clear is that both parties were laboring under the misconception that the mare that had been impregnated was Kcees. Thus, the contract was void because at the time of formation neither party knew that an expecting Kcees did not exist. See Plaut v. Marks, 5 Ohio Cir. Dec. 317, 319 (Ohio Cir.Ct.1895) (“As where one attempts to sell a horse, or a stock of goods, supposed by the contracting parties to be in existence but which in fact is not, the price paid therefor must be returned.” (emphasis added)).

A. Effect on UCC-Damages Claim

¶ 21. The same principle carries over into Article II of the UCC, the statutory body of law that governed the sales contract between the Whites and Laura. ‘Where the contract requires for its performance goods identified when the contract is made, and the goods suffer casualty without fault of either party before the risk of loss passes to the buyer, ... if the loss is total the contract is avoided[.]” Miss.Code Ann. § 75-2-613 (Rev.2002). As the comment notes, this “section applies [when] the goods were already destroyed at the time of contracting without the knowledge of either party[.]” The contract required the Harold and Anne to deliver a specifically identified pregnant mare, Kcees. But at the time of contracting, unbeknownst to either party, Kcees had already been misplaced and had not been impregnated due to Gex-ald’s mix-up. Thus, the sales contract was “avoided.” Id. Because the sales contract was void, Laura’s claim for UCC damages — either actual, incidental, and/or consequential to the breach of the sales contract — was properly dismissed.

¶ 22. Instead of Laura being entitled to receive the benefit of her bargain under the sales contract, the law allowed Laura to be put back in the same place she was before the contract was formed based on the mutual mistake of fact. But once the mistake was discovered, Laura stymied any efforts by Harold and Anne to restore her to the same place. Instead, she insisted on trying to obtain money from them, even though they had co-labored under the same misconception. Thus, we find no abuse of discretion in the judge finding that the only expenses Laura was able to prove she incurred based on the busted deal were equal to Harold and Anne’s, thereby setting off her award of $398 with an order she pay them the same amount.

B. Effect on Fraud Claim

¶ 23. Because the circuit judge found Harold, Anne, and Gerald were as equally mistaken as Laura, we also find no abuse of discretion in the judge dismissing her fraud claim. To make a prima facie case of fraud, Laura had to prove by clear and convincing evidence that Harold, Anne, and Gerald not only falsely represented that the horse Laura traded for Ima was Kcees but that they knew this representation was false. See Franklin v. Lovitt Equip. Co., 420 So.2d 1370, 1373 (Miss.1982) (listing nine elements of fraud, which include “the speaker’s knowledge of [the] falsity” of the material representation). Because it was not until well after the trade that Harold, Anne, and Gerald realized the .mix-up between Kcees and Miss Savanah, Laura could not prove they knew that the horse Laura was going to receive in the trade was not Kcees. Thus, Laura could not prove she was defrauded.

¶ 24. Because the circuit judge properly dismissed both of Laura’s claims following her presentation of the evidence, we affirm.

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

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

      . Miss Savanah’s owners are not part of this lawsuit.


text:
    NORTHEAST MENTAL HEALTH-MENTAL RETARDATION COMMISSION, Appellant v. V.M. CLEVELAND, Appellee.
    No. 2012-CA-01577-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2013.

      Fred L. Banks Jr., Jackson, William M. Beasley Sr., William Michael Beasley Jr., Tupelo, Luther T. Munford, Jackson, attorneys for appellant.
    Jason D. Herring, Gary L. Carnathan, Michael Spencer Chapman, Tupelo, attorneys for appellee.
    Before LEE, C.J, MAXWELL and FAIR, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Northeast Mental Health-Mental Retardation Commission (the Commission) appeals the partial grant of summary judgment in favor of V.M. Cleveland, which the chancellor had certified as final and ap-pealable under Mississippi Rule of Civil Procedure 54(b). But just because an order is declared to be final and appealable does not necessarily make it so. And in this case, the order certified as final did not fall within the “limited category of decisions” to which Rule 54(b) may be applied. Thus, the Rule 54(b) certification was invalid.

¶ 2. Because the decision that the Commission appeals is not a final, appealable judgment, we dismiss the appeal for lack of jurisdiction.

Procedural History

I. Chancery Action

¶ 3. The underlying dispute involves the validity of a ninety-nine-year lease between the Commission and Cleveland. Under the terms of the lease, the Commission agreed to lease Cleveland land in Lee County, Mississippi. In turn, Cleveland agreed to build a mental-health facility on the property and turn around and rent the facility to the Commission for $18,000 per month so long as the Commission had the state and federal funds to pay the rent. But if the Commission was unable to fund the rent, it agreed to quitclaim the land and facility to Cleveland.

¶ 4. This arrangement lasted for a decade, until the Commission, now composed of different members, voted to void the lease as unreasonable. The Commission filed an action against Cleveland in the Lee County Chancery Court, seeking to have the lease declared void. Cleveland filed a counterclaim, seeking damages for breach of contract and to have the lease declared enforceable.

¶ 5. Both parties filed cross motions for summary judgment. The chancellor denied the Commission’s motion for summary judgment. But he granted Cleveland’s motion in part. The chancellor found, based on the undisputed facts, that the Commission had the legal authority to enter the lease with Cleveland. But the chancellor could not fully rule in Cleveland’s favor because there were “genuine issues of material fact [on] whether it is necessary for the Commission to rescind the agreement or whether such action directly or indirectly promotes its statutory purposes.”

¶ 6. Despite not resolving any claim, the chancellor “certified” his decision as final and appealable under Rule 54(b).

II. The Commission’s Appeal

¶ 7. Both the supreme court and this court have dismissed appeals based on improper Rule 54(b) certifications — even when the parties raised no concerns about the finality of the order being appealed. E.g., White v. Mills, 735 So.2d 428, 432 (¶ 17) (Miss.1999); Reeves Constr. & Supply, Inc. v. Corrigan, 24 So.3d 1077, 1082-84 (¶¶ 12-18) (Miss.Ct.App.2010). However, here, the Commission has expressed concerns about the propriety of the Rule 54(b) certification since the onset of this appeal.

¶ 8. The chancellor’s decision was not certified as final at either party’s request. Instead, the chancellor sua sponte inserted the following into his order: “Insofar as the enforceability of the contract, the court certifies this is a final decision, appealable pursuant to M.R.C.P. 54(b).” Because of this sentence, the Commission, in its own words, “found itself in the precarious position of being forced to either appeal the final judgment and risk dismissal for lack of jurisdiction or risk losing the enforceability issue altogether under the law-of-the-case doctrine.” So the Commission simultaneously filed two appeals. It filed a petition for an interlocutory appeal under Mississippi Rule of Appellate Procedure 5. And it also filed a notice of appeal under Mississippi Rule of Appellate Procedure 3, just in case the chancellor’s Rule 54(b) certification was “in fact a valid final judgment.”

¶ 9. In their Rule 3 appeal, however, the Commission informed the supreme court about its interlocutory appeal, acknowledging that Rule 5 was likely the proper procedural avenue to review of the chancellor’s decision. Two weeks after filing its notice of appeal, the Commission filed a “Motion to Vacate and Consolidate,” asking the supreme court to vacate the chancellor’s Rule 54(b) certification and consolidate the Rule 3 appeal with the Rule 5 appeal. In this motion, the Commission expressed concern that the chancellor’s decision was not eligible for certification under Rule 54(b). So it asked the supreme court “for an expedited ruling regarding jurisdiction” and expressly “request[ed] that [the supreme court] determine whether the Chancellor’s final order is a valid certification and whether this appeal should proceed under [Rule] 3 or [Rule] 5.”

¶ 10. By order dated November 29, 2012, the supreme court denied the Commission’s petition for an interlocutory appeal — as was certainly its perogative. See M.R.A.P. 5. Yet by order dated the same day, the supreme court simply dismissed the Commission’s motion to vacate and consolidate as moot, without providing the Commission with any “expedited ruling regarding” the validity of the chancellor’s Rule 54(b) certification. In light of this order, the Commission decided to pursue its Rule 3 appeal, despite concerns over the finality of the order it was appealing.

Discussion

¶ 11. Now that the Rule 3 appeal is before this court, we must confirm the Commission’s suspicions were correct. The chancellor’s decision could not be certified as final under Rule 54(b). Thus, despite the certification, the nature of the chancellor’s decision was in fact interlocutory. So once the Commission’s request for an interlocutory appeal was denied, the parties had no other option but to proceed to a full adjudication at the trial-court level.

I. Rule 54(b) and the Final-Judgment Rule

¶ 12. Only final judgments may be appealed. Harris v. Waters, 40 So.3d 657, 658 (¶ 3) (Miss.Ct.App.2010). “A final, appealable[ ] judgment is one that adjudicates the merits of the controversy which settles all issues as to all the parties and requires no further action by the lower court.” Walters v. Walters, 956 So.2d 1050, 1053 (¶ 8) (Miss.Ct.App.2007) (emphasis added and internal quotation marks omitted).

¶ 13. “Rule 54(b) provides an exception to the final-judgment rule.” Harris, 40 So.3d at 658 (¶ 4). Under this rule, the trial court may “direct the entry of a final judgment as to one or more but fewer than all of the claims or parties!.]” M.R.C.P. 54(b). “According to the official comment to Rule 54(b), the basic purpose of the rule ‘is to avoid the possible injustice of a delay in entering judgment on a distinctly separate claim or as to fewer than all of the parties until the final adjudication of the entire case by making an immediate appeal available.’ ” Harris, 40 So.3d at 658 (¶ 5) (emphasis added) (quoting M.R.C.P. 54(b) cmt.).

¶ 14. However, for a judgment or order to be eligible for Rule 54(b) finality, “the case [must] include either multiple claims, multiple parties, or both, and ... either one or more but fewer than all the claims [must] have been decided, or ... all the rights and liabilities of at least one party [must] have been adjudicated.” M.R.C.P. 54(b) cmt. The comment makes clear that “[d]espite its apparently broad scope, Rule 54(b) may be invoked only in a relatively select group of cases and applied to an even more limited category of decisions.” M.R.C.P. 54(b) cmt. And “[a] decision that leaves a portion of the claim pending as to all defendants does not fall within the ambit of Rule 54(b).” M.R.C.P. 54(b) cmt.

II. Invalidity of Rule 54(b) Certification

¶ 15. The chancellor’s grant of partial summary judgment did not decide a claim between the two parties. Rather, it merely decided an issue within their claims-whether the contract was enforceable. This decision resulted in the denial of summary judgment to the Commission. And the denial of summary judgment is an interlocutory order that may only be appealed by permission. Hinds Cnty. v. Perkins, 64 So.3d 982, 984 (¶ 7) (Miss.2011). The chancellor’s decision also led to the partial grant of summary judgment in favor of Cleveland. But none of Cleveland’s claims were fully resolved. The chancellor was clear in his order that, despite the contract being enforceable as a matter of law, full summary judgment could not be granted because there were still “genuine issues of material fact” concerning whether the Commission could validly take actions to rescind the contract.

¶ 16. Because the chancellor’s decision left a portion of Cleveland’s claim pending, the chancellor’s order did not fall within that “limited category of decisions” in which Rule 54(b) may be applied. M.R.C.P. 54(b) cmt. Thus, the Rule 54(b) certification is invalid, and the decision that is the subject of this appeal is not a final, appealable judgment. Lacking jurisdiction to address the merits of the chancellor’s decision, we dismiss the appeal.

¶ 17. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . E.g., White v. Mills, 735 So.2d 428, 431 (¶ 11) (Miss.1999) (holding trial court’s order was not appealable "[djespite its designation as a Rule 54(b) judgment”); Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So.2d 897, 900 (Miss.1987) (vacating and dismissing appeal because Rule 54(b) certification "improvidently granted”).

      . M.R.C.P. 54(b) cmt.


author: LEE, C.J.,

text:
    James SMITH a/k/a James Estus Smith a/k/a Estus James Smith a/k/a Outlaw, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01346-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2013.

      James Smith, appellant, pro se.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before LEE, C.J., MAXWELL and FAIR, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. In May 2000, James Estus Smith pleaded guilty to murder, for which he was sentenced to life imprisonment, and robbery, for which he was sentenced to fifteen years. Both sentences were ordered to be served in the custody of the Mississippi Department of Corrections, with the robbery sentence to run consecutive to the murder sentence.

¶ 2. Smith timely filed his first motion for post-conviction relief (PCR), which the trial court dismissed. Smith appealed to this Court, asserting the following issues: (1) his guilty plea was involuntary; (2) he should have received an evidentiary hearing; and (3) he was entitled to a competency hearing. Smith v. State, 910 So.2d 635, 636 (¶ 1) (Miss.Ct.App.2005). We found Smith’s issues to be without merit and affirmed the trial court’s decision. Id. at 640 (¶ 29).

¶ 3. Smith filed his second PCR motion in May 2012, which the trial court summarily dismissed in July 2012. Smith subsequently filed an appeal, raising two issues: (1) ineffective assistance of counsel; and (2) a double-jeopardy violation.

¶ 4. The record indicates that Smith also filed a motion entitled “motion to stay appeal/discretionary dismissal” in the trial court on August 17, 2012. Smith included with his brief a ruling from the trial court treating his notice of appeal as a motion for permission to proceed with an out-of-time appeal. The trial court denied Smith’s motion for relief on January 16, 2013.

STANDARD OF REVIEW

¶ 5. When reviewing a trial court’s denial or dismissal of a PCR motion, we will only disturb the trial court’s factual findings if they are clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review. Hughes v. State, 106 So.3d 836, 838 (¶ 4) (Miss.Ct.App.2012).

DISCUSSION

I. INEFFECTIVE ASSISTANCE OF COUNSEL

II. DOUBLE-JEOPARDY VIOLATION

¶ 6. We first note that Smith did not raise these issues in the trial court; thus, we are precluded from reviewing them on appeal. See Fluker v. State, 17 So.3d 181, 183 (¶ 5) (Miss.Ct.App.2009). Furthermore, as this was Smith’s second PCR motion, it is barred as a successive writ. See Miss.Code Ann. § 99-39-23(6) (Supp.2013). “Errors affecting fundamental constitutional rights[, including double jeopardy,] are excepted from the procedural bars of the [Uniform Post-Conviction Collateral Relief Act]”. Rowland v. State, 42 So.3d 503, 508 (¶ 16) (Miss.2010). In this instance, however, since Smith was only prosecuted once for his crimes of murder and robbery, there was no double-jeopardy violation.

¶ 7. Smith also makes vague assertions about seeking DNA testing of his cocon-spirator. This issue, however, was not raised in the trial court.

¶ 8. We find both procedural and successive-writ bars preclude our consideration of the merits of Smith’s appeal. Thus, we affirm the trial court’s dismissal of Smith’s PCR motion.

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

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

      . The trial court’s order is unclear from which ruling Smith is seeking an out-of-time appeal. While this motion was pending in the trial court, Smith filed a motion to dismiss in this Court. On February 6, 2013, this Court entered an order denying Smith's motion to dismiss. According to this order, Smith sought to dismiss his appeal without prejudice in order to file an out-of-time appeal of his first motion for PCR in May 2003.


author: IRVING, P.J.,

text:
    Willie DOSS, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01382-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2013.

      Willie Doss, appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before IRVING, P.J., ISHEE and FAIR, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. Willie Doss appeals the Oktibbeha County Circuit Court’s dismissal of his motion for relief from judgment pursuant to Rule 60(b)(4) of the Mississippi Rules of Civil Procedure. Finding no error, we affirm.

FACTS

¶ 2. On February 8, 2002, an Oktibbeha County jury convicted Doss of murder, and the circuit court sentenced him to life imprisonment. Doss filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the court denied. Doss appealed his conviction and sentence, and this Court affirmed on September 9, 2003. Doss v. State, 866 So.2d 1105, 1107 (¶ 14) (Miss.Ct.App.2003). Thereafter, Doss requested permission from the Mississippi Supreme Court to seek post-conviction relief in the circuit court. Our supreme court denied Doss’s request, finding that Doss’s application failed “to make a substantial showing of the denial of a state or federal right as required by [Mississippi Code Annotated section] 99-39-27(5) [ (Supp.2013) ].”

¶ 3. On June 18, 2012, Doss filed his motion for relief from judgment pursuant to Rule 60(b)(4) with the circuit court. The court dismissed Doss’s motion, stating that because Doss appealed his conviction and the conviction was affirmed, the circuit court was “without any authority to hear any post-conviction motions until [Doss] has obtained permission to file said motions[.]”

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 5. Doss contends that the circuit court erred in dismissing his Rule 60(b)(4) motion, which alleged that the circuit court’s judgment against him was void. The Mississippi Supreme Court has stated that “pleading[s] cognizable under the [Uniform Post-Conviction Collateral Relief Act (UPCCRA) ] will be treated as ... motion[s] for post-conviction relief that [are] subject to the procedural rules promulgated therein, regardless of how the plaintiff has denominated or characterized the pleading[s].” Knox v. State, 75 So.3d 1030, 1035 (¶ 12) (Miss.2011) (citations omitted). We find that Doss’s motion was essentially a motion for post-conviction relief (PCR).

¶ 6. “When a case is affirmed on direct appeal, permission from the Mississippi Supreme Court must be obtained in order to seek post-conviction relief in the circuit court.” Campbell v. State, 75 So.3d 1160, 1161-62 (¶ 7) (Miss.Ct.App.2011) (citing Miss.Code Ann. § 99-39-7 (Supp.[2013])). Additionally, the supreme court’s denial of an application for leave to seek post-conviction relief in the circuit court is a final judgment and bars successive applications for relief pursuant to the UPCCRA. Miss. Code Ann. § 99-39-27(9) (Supp.2013).

¶ 7. As stated, we affirmed Doss’s conviction and sentence on September 9, 2003. Subsequently, Doss filed an application with the supreme court for leave to seek post-conviction relief in the circuit court. The supreme court denied Doss’s application, stating that he had failed to “make a substantial showing of the denial of a state or federal right.” Eight years later, Doss filed his Rule 60(b)(4) motion with the circuit court, which the court dismissed for lack of jurisdiction.

¶ 8. The circuit court did not err in dismissing Doss’s Rule 60(b)(4) motion. Because the supreme court never gave Doss permission to file his motion with the circuit court, the circuit court never had jurisdiction to hear his motion. Accordingly, we affirm the circuit court’s judgment dismissing Doss’s PCR motion.

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

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


author: THOMPSON, Presiding Judge.

text:
    Dana J. LACEY v. Russell S. LACEY.
    2110692.
    Court of Civil Appeals of Alabama.
    Feb. 15, 2013.
    W.N. Watson of Watson & Neeley, LLC, Fort Payne, for appellant.

      Gary W. Lackey of The Lackey Law-Firm, Scottsboro, for appellee.
   On Application for Rehearing

THOMPSON, Presiding Judge.

This court’s opinion of December 14, 2012, is withdrawn, and the following is substituted therefor.

Dana J. Lacey (“the wife”) and Russell S. Lacey (“the husband”) were divorced by a February 6, 2007, judgment of the trial court that incorporated the parties’ settlement agreement. Pursuant to the divorce judgment, the wife was awarded, among other things, the marital residence, a parcel of real property, and certain financial assets. The husband was awarded all the parties’ remaining real estate and the parties’ entire interest in a business known as “Double Delta, Inc.” In addition, paragraph 14 of the divorce judgment provided:

“14. That the [husband] shall pay to the [wife] $2,500 per month for 96 months with said payments to terminate prior to the 96 payments only upon her death. The total of $240,000 shall be secured by a mortgage or other security interest in real and/or personal property sufficient to cover any remaining balance due under the terms of this order and by life insurance in an amount sufficient to make the payment in the event of the [husband]’s death. The amount of security or insurance required shall decrease with each payment.
“The parties understand that the initial security shall be second mortgages on properties and subordinate to existing indebtedness on the business of the [husband]. That the parties further understand and it is the order of this court that from time to time refinancing or other modifications of the financial arrangement of the [husband]’s business may be required and the [wife] shall forthwith execute any and all documents necessary to allow said modifications or refinancing of the [husband]’s business for so long as the [wife] remains fully secured for said payments.”

Neither party appealed the divorce judgment.

On May 30, 2008, the husband filed a petition to modify various portions of the divorce judgment. In pertinent part, the husband alleged that paragraph 14 of the divorce judgment constituted an award of rehabilitative alimony, and he sought a termination of that purported alimony obligation. The wife answered and argued, in pertinent part, that paragraph 14 constituted a nonmodifiable property division in the nature of alimony in gross. The wife later filed a petition asking the trial court to enforce the divorce judgment; in that petition, she alleged that the husband had failed to make the payments required by paragraph 14 of the divorce judgment.

The trial court conducted an ore tenus hearing. Neither party testified at the hearing. The parties stipulated that, in July 2008, the wife remarried, and in May 2009 the husband stopped making the payments ordered in paragraph 14 of the divorce judgment.

The attorney who represented the husband during the divorce proceedings testified that, at some point, the husband contacted him and informed him there was a dispute between the parties regarding whether paragraph 14 constituted an award of periodic alimony or alimony in gross. In response, the attorney sent a February 2008 letter to the wife’s attorney concerning that dispute; that letter was not admitted into evidence. The attorney who represented the wife during the divorce proceedings testified that he drafted the divorce judgment and that the husband’s attorney approved that draft before it was submitted to the trial court.

On November 17, 2011, the trial court entered a modification judgment in which it determined that the obligation set forth in paragraph 14 of the divorce judgment was one for periodic alimony, and it granted the husband’s request that that obligation be terminated. The trial court denied all other relief requested by the parties.

The wife filed a postjudgment motion. On March 5, 2012, the trial court entered an order vacating the November 17, 2011, judgment and entering a new judgment. The trial court set forth in detail its finding that the award set forth in paragraph 14 of the divorce judgment constituted an award of periodic alimony, and it terminated the husband’s obligation to pay that award. The wife timely appealed.

The wife argues on appeal that the trial court erred in interpreting paragraph 14 of the parties’ divorce judgment as an award of periodic alimony rather than alimony in gross. With regard to the characteristics of periodic alimony and alimony in gross, this court has stated:

“Our supreme court has explained the difference between periodic alimony and alimony in gross. Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974). Alimony in gross is considered ‘compensation for the [recipient spouse’s] inchoate marital rights [and] ... may also represent a division of the fruits of the marriage where liquidation of a couple’s jointly owned assets is not practicable.’ [Hager v. Hager], 293 Ala. at 54, 299 So.2d at 749. An alimony-in-gross award ‘must satisfy two requirements, (1) the time of payment and the amount must be certain, and (2) the right to alimony must be vested.’ Cheek v. Cheek, 500 So.2d 17, 18 (Ala.Civ.App.1986). It must also be payable out of the present estate of the paying spouse as it exists at the time of the divorce. [Hager v. Hager], 293 Ala. at 55, 299 So.2d at 750. In other words, alimony in gross is a form of property settlement. [Hager v. Hager], 293 Ala. at 54, 299 So.2d at 749. An alimony-in-gross award is generally not modifiable. Id.
“Periodic alimony, on the other hand, ‘is an allowance for the future support of the [recipient spouse] payable from the current earnings of the [paying spouse].’ [Hager v. Hager], 293 Ala. at 55, 299 So.2d at 750. Its purpose ‘is to support the former dependent spouse and enable that spouse, to the extent 'possible, to maintain the status that the parties had enjoyed during the marriage, until that spouse is self-supporting or maintaining a lifestyle or status similar to the one enjoyed during the marriage.’ O’Neal v. O’Neal, 678 So.2d 161, 164 (Ala.Civ.App.1996) (emphasis added). Periodic alimony is modifiable based upon changes in the parties’ financial conditions or needs, such as an increase in the need of the recipient spouse, a decrease in the income of the paying spouse, or an increase in the income of the recipient spouse. See Tibbetts v. Tibbetts, 762 So.2d 856, 858 (Ala.Civ.App.1999). The paying spouse’s duty to pay periodic alimony may be terminated by petition and proof that the recipient spouse has remarried or is cohabiting with a member of the opposite sex. Ala.Code 1975, § 30-2-55.”

TenEyck v. TenEyck, 885 So.2d 146, 151-52 (Ala.Civ.App.2003).

In determining the nature of an award of alimony, our supreme court has held that when the award is unspecified, “the source of the payment and the purpose are of prime importance.” Hager v. Hager, 293 Ala. 47, 55, 299 So.2d 743, 750 (1974) (emphasis added). See also TenEyck v. TenEyck, 885 So.2d at 152 (“‘When the type of award is not specifically stated in the divorce [judgment], the source of payment and its purpose are important factors in determining whether an award is periodic alimony or alimony in gross.’ ” (quoting Cheek v. Cheek, 500 So.2d 17, 19 (Ala.Civ.App.1986))); Walls v. Walls, 860 So.2d 352, 357 (Ala.Civ.App.2003) (“The amended judgment does not state the nature of this award. In such a case, the source of the award, as well as its purpose, are factors to consider in determining the nature of the award.”); and Kilgore v. Kilgore, 572 So.2d 480, 482 (Ala.Civ.App.1990) (“When the type of award intended is not specified, the source of the award and the purpose are of prime importance.”).

It is well established that the source of a payment of periodic alimony is the current earnings of the support-paying spouse. Hager v. Hager, 293 Ala. at 55, 299 So.2d at 750 (“ ‘[P]eriodic alimony’ is an allowance for the future support of the [recipient spouse] payable from the current earnings of the [payor spouse].”); Rose v. Rose, 70 So.3d 429, 433 (Ala.Civ.App.2011) (“The source of periodic-alimony payments must be the current income of the payor spouse.”); Smith v. Smith, 866 So.2d 588, 591 (Ala.Civ.App.2003) (“ ‘[Periodic alimony is defined as an allowance from the current earnings of a spouse to provide for the current and continuous support of the other[.]’ ” (quoting Penny A. Davis & Robert Earl McCurley, Jr., Alabama Divorce, Alimony & Child Custody Hornbook § 18-6 at 205-06 (3d ed.1993))); and TenEyck v. TenEyck, supra (same). In contrast, the payment source of an alimony-in-gross obligation is the estate of the parties or of the payor spouse, and alimony in gross may be awarded when the division of jointly owned assets is not feasible or practical. Hager v. Hager, 293 Ala. at 55, 299 So.2d at 750 (“ ‘Alimony in gross’ is the present value of the [recipient spouse’s] inchoate marital rights — dower, homestead, quarantine, and distributive share. It is payable out of the [payor spouse’s] present estate as it exists at the time of divorce.”); see also TenEyck v. TenEyck, 885 So.2d at 151-52 (same); Johnson v. Johnson, 840 So.2d 909, 912 (Ala.Civ.App.2002) (same); and Clements v. Clements, 990 So.2d 383, 392 (Ala.Civ.App.2007) (“[A]n alimony-in-gross award is payable from the present estate of the paying spouse.”).

On application for rehearing, the husband contends that the payments he had made in the past toward the obligation set forth in paragraph 14 were made from his current earnings, which he received from his business. However, the award set forth in paragraph 14 specifies that it is secured by, among other things, a mortgage on the property of the husband’s business or other assets of the husband. In other words, the divorce judgment specifies that if the husband fails to pay the wife from his current earnings, the wife has a security interest “sufficient to cover any remaining balance due” under paragraph 14. Thus, given the unique circumstances of this case, we conclude that because the obligation may be enforced against assets of the husband’s estate, the source of the obligation at issue is the current estate of the husband.

Further, the requirement that the obligation be secured by a lien on the husband’s property indicates that the purpose of the award in paragraph 14 of the divorce judgment is to compensate the wife for her interest in the husband’s business. See Kilgore v. Kilgore, 572 So.2d at 482 (“Alimony in gross is intended to effect a final termination of the property rights and relations of the parties and is based on the value of the [recipient spouse’s] inchoate rights in [the payor spouse’s] estate.”).

In this case, the time and amount of payment is certain; the divorce judgment orders that the wife receive a total of $240,000, paid in 96 equal monthly installments of $2,500 each. Thus, the award at issue meets the first requirement that in order to constitute an award of alimony in gross, the time and amount of the payment must be certain. TenEyck v. TenEyck, supra (a requirement of an award of alimony in gross is that the time and amount of the payment must be certain).

In its judgment, the trial court found that the second requirement for an alimony-in-gross award was not satisfied because, it determined, the right had not vested because the wife’s right to payment ended at her death. See TenEyck v. TenEyck, supra; see also Hughes v. Hughes, 703 So.2d 352, 353-54 (Ala.Civ.App.1996) (“It is well settled that in order to be considered alimony in gross, the award must satisfy two requirements: (1) the time of payment and the amount must be certain, and (2) the right to alimony must be vested.”). The trial court relied upon Kilgore v. Kilgore, supra, and Trammell v. Trammell, 523 So.2d 437 (Ala.Civ.App.1988). In Kilgore v. Kilgore, this court concluded that “the most reasonable construction,” id. at 483, of a provision stating that “ ‘[t]he husband shall pay alimony to the wife in the amount of $400 per month for a period of ten years until such time as she remarries or dies, whichever comes first,’ ” was that the award was one of periodic alimony. Id. at 482. In Tram-mell v. Trammell, 523 So.2d at 439, this court concluded that an award of alimony was periodic alimony because the right to payment had not vested; the court explained:

“In the instant ease the award’s total amount can be ascertained, and the time for payment is certain; however the right is not vested. The [judgment] specifically refers to the award as periodic and provides for the shortening of the payment period in the event of death of either spouse. The agreement further envisions a tax advantage for the payor spouse. The language clearly indicates no intention for the estate of the husband to be bound in the event of his death. Thus, the right is not vested.”

In this case, the alimony obligation, by its express terms, is terminable only at the wife’s death. The obligation remains in force upon the death of the husband, and it is secured not only by property within the husband’s estate but also, in the event of the husband’s death, by a life-insurance policy. The language of paragraph 14 specifying that the award at issue is terminable “only” upon the wife’s death demonstrates that the award is in contravention of the general law that an award of periodic alimony is terminable at the death of either spouse and that it is terminable upon the cohabitation or remarriage of the recipient spouse. See § 30-2-55, Ala. Code 1975 (periodic alimony is terminable at the cohabitation or remarriage of the recipient spouse); Stockbridge v. Reeves, 640 So.2d 947, 948 (Ala.Civ.App.1994) (concluding that the award at issue constituted alimony in gross and noting that “[t]his provision does not provide that the payments are to cease upon the remarriage of the wife”); Kelley v. State Dep’t of Revenue, 796 So.2d 1114, 1118 (Ala.Civ.App.2000) (“[Periodic alimony payments cease at the death of either spouse.”); see also Kilgore v. Kilgore, supra (the award was held to be periodic alimony because it stated it would end at the remarriage or death of the wife and there was no statement that it was alimony in gross). Also, because a periodic-alimony obligation does not survive the death of the payor spouse, the specification that the alimony obligation at issue in this case is to be secured by insurance on the husband’s life indicates that that award is not periodic alimony; life insurance may not be used to fund an obligation that is terminable at death. See, e.g., Alexander v. Alexander, 65 So.3d 958, 968-69 (Ala.Civ.App.2010) (Moore, J., concurring in the result) (“I agree with the husband that the obligation to pay periodic alimony ends upon the death of the obligor spouse; thus, life insurance cannot possibly be ordered to ‘secure’ that obligation.”).

In both Kilgore v. Kilgore, supra, and Trammell v. Trammell, supra, upon which the trial court relied, factors such as termination upon the recipient spouse’s remarriage, a reference to the obligation as periodic, and specified tax implications, in addition to the fact that the obligations were terminable at the death of the recipient spouse, contributed to a determination that the unspecified awards of alimony were not vested and were in the nature of periodic alimony. Those other factors are not present in this case. Also, our supreme court has held that “the term ‘vested’ simply signifies that an award of ‘alimony in gross’ is not subject to modification.” Hager v. Hager, 293 Ala. at 54, 299 So.2d at 750 (emphasis added); see also Brunner v. Ormsby, 10 So.3d 18, 23 (Ala.Civ.App.2008) (same). In Hager v. Hager, supra, our supreme court reversed the decision of this court in which we held that an award could not be alimony in gross because it terminated at the death of the recipient spouse. Rather, the supreme court stated that “[w]e have no case which holds that the unmodifiable character of ‘alimony in gross’ is changed by a clause that terminates the installments in case of the [payee spouse’s] death.” Hager v. Hager, 293 Ala. at 54, 299 So.2d at 750.

“The intent to award alimony in gross should be necessarily inferred from the language used or should be unequivocally expressed.” Bolling v. Bolling, 586 So.2d 225, 226 (Ala.Civ.App.1991) (emphasis added); see also Bonham v. Bonham, 623 So.2d 337, 338 (Ala.Civ.App.1993) (“The intent to award alimony in gross must be unequivocally expressed or necessarily inferred from the language used.” (emphasis added)); and Lacey v. Ward, 634 So.2d 1013, 1015 (Ala.Civ.App.1994) (“Because an award of alimony in gross cannot be modified, the intent to give such an award should be clearly expressed, or necessarily inferred, from the language used.”). Thus, the failure to expressly designate the award as alimony in gross or to refer to it as such is not determinative; rather, the nature of the award may be inferred from the language of the award and the facts. See Penny A. Davis and Robert Earl McCurley, Jr., Alabama Divorce, Alimony & Child Custody Horn-book § 18-5 at 253 (4th ed. 2005) (“[T]he failure to label a provision of a [judgment] as alimony in gross will not defeat a provision which in substance provides for alimony in gross. The designation of a provision as alimony in gross should be present, but it is not mandatory.” (footnotes omitted)).

In this case, paragraph 14 does not specify that the award is one for alimony in gross, but the nature of that award is inferable from the language of paragraph 14. Although the award terminates at the wife’s death, that fact alone does not mean that the right is not vested. Hager v. Hager, 293 Ala. at 54, 299 So.2d at 750. Further, all other characteristics of the award indicate that it is one of alimony in gross. The award is not payable from the husband’s current earnings. Rather, that obligation is secured by a mortgage on the property in the husband’s estate, it survives the death of the husband and is secured by life insurance, and the amount and timing of the payments are certain. We conclude that the trial court erred in concluding that paragraph 14 of the parties’ divorce judgment constituted an award of periodic alimony. Rather, we hold that that award was one of alimony in gross.

An award of alimony in gross is in the nature of a property division, and such an award is not subject to modification. Hager v. Hager, supra; and TenEyck v. TenEyck, supra. Accordingly, we hold that the trial court erred in entering that part of its judgment that terminated the husband’s obligation under paragraph 14 of the parties’ divorce judgment. The judgment is reversed, and the cause is remanded for the entry of a judgment in compliance with this opinion.

APPLICATION FOR REHEARING OVERRULED; OPINION OF DECEMBER 14, 2012, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

PITTMAN and DONALDSON, JJ., concur.

THOMAS and MOORE, JJ., concur in the result, without writings.

      . On application for rehearing, the husband argues that, in recent caselaw precedent, “life insurance was mandated to secure payment of modifiable periodic alimony.” The cases cited by the husband in support of that assertion are not on point. In Bush v. Bush, 784 So.2d 299, 300 (Ala.Civ.App.2000), the original judgment incorporated the parties’ agreement that specifically provided that the obligation at issue was periodic alimony and that it was to be secured by life insurance; this court affirmed a modification judgment that removed, among other things, the requirement that that obligation be secured by the life-insurance policy. In both Lackey v. Lackey, 18 So.3d 393 (Ala.Civ.App.2009), and Sellers v. Sellers, 893 So.2d 456 (Ala.Civ.App.2004), the life-insurance benefits awarded to the wife were listed as a separate award for the benefit of the wife; those benefits were not specified as security for the periodic-alimony awards at issue in those cases.


author:
STUART, Justice.
      MURDOCK, Justice

text:
    Ex parte Russell S. LACEY. (In re Dana J. Lacey v. Russell S. Lacey).
    1120625.
    Supreme Court of Alabama.
    April 26, 2013.
    Gary W. Lackey, Scottsboro, for petitioner.

       Justice Bryan was a member of the Court of Civil Appeals when that court considered this case.

   STUART, Justice.

WRIT DENIED. NO OPINION.

BOLIN, PARKER, SHAW, MAIN, and WISE, JJ., concur.

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

BRYAN, J., recuses himself.

MURDOCK, Justice

(dissenting).

I respectfully dissent from the denial of certiorari review in this case. I write briefly to explain my concerns.

First, it is well established that, because alimony in gross cannot be altered once ordered, a provision in a divorce judgment for alimony in gross should be “unequivocally expressed” by, or “necessarily” inferred from, the language used. Brunner v. Ormsby, 10 So.3d 18 (Ala.Civ.App.2008); Le Maistre v. Baker, 268 Ala. 295, 299, 105 So.2d 867, 870 (1958). The provision of the divorce judgment at issue here simply does not meet this standard.

Second, and to the contrary, a provision for monthly payments to continue for a period of eight years appears on its face to contemplate payments to be made from the ongoing earnings of the payor spouse, not some division of property already held in the estate of that spouse at the time of the divorce. Furthermore, the payments here were structured to end at the wife’s death, a fact suggesting an intent to help rehabilitate or support the wife and inconsistent with a “vested” transfer of property rights (the opinion in Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974), notwithstanding).

The Court of Civil Appeals relies heavily on the fact that the obligation here is secured by life insurance and a security interest in certain property owned by the husband. Lacey v. Lacey, 126 So.3d 1029 (Ala.Civ.App.2013). It is the intrinsic nature of the obligation, however, not the nature of that which secures its payment, to which we primarily should look in assessing the nature of the obligation. Moreover, life insurance commonly is prescribed in divorce judgments in which periodic alimony is awarded; I do not see the provision for it here as particularly remarkable in regard to the issue at hand. The other security ordered, a security interest in certain property owned by the husband, can be seen as a means by which the trial court simply sought to assure the continuation of periodic payments for the wife’s support during the husband’s life, a purpose obviously not served by the life insurance.

The Court of Civil Appeals also relies upon a statement in Hager, 293 Ala. at 54, 299 So.2d at 750, that “ ‘[w]e have found no case which holds that the unmodifiable character of “alimony in gross” is changed by a clause that terminates the installments in case of the [payee’s] death.’ ” 126 So.3d at 1034. In Hager, however, the divorce judgment explicitly designated the obligation as “alimony in gross.” The question before the Court in Hager was whether the fact that this obligation was to terminate upon the payee spouse’s death also somehow subjected it to court-ordered modification during the payee spouse’s life. As the Court of Civil Appeals more recently explained in Brunner v. Ormsby, 10 So.3d 18 (Ala.Civ.App.2008), “[i]n Hager ... our [S]upreme [Cjourt held that a clause providing that alimony would terminate upon the death of the payee spouse would not prevent that award from being unmodifiable if the award was intended to be alimony in gross.” 10 So.3d at 23 (citing Hager, 293 Ala. at 55, 299 So.2d at 750). That is, given the facts in Hager, this Court was not so much concerned with whether those payments were, in fact, alimony in gross, as it was with whether the fact that the payment of that alimony would terminate at the payee spouse’s death would somehow also make it modifiable during the payee spouse’s life.

The trial court in the present case held that it was the intent of the original divorce judgment to provide for periodic alimony. The petition before us argues that the Court of Civil Appeals erred in not affirming this interpretation of the divorce judgment. Because I believe there is probable merit in that petition, I respectfully dissent from its denial.

      . The Court of Civil Appeals states that "life insurance may not be used to fund an obligation that is terminable at death.” Lacey, 126 So.3d at 1034. I find no authority for this proposition. As support for it, the Court of Civil Appeals cites a special writing of one judge in Alexander v. Alexander, 65 So.3d 958, 968-69 (Ala.Civ.App.2010) (Moore, J., concurring in the result) ("I agree with die husband that the obligation to pay periodic alimony ends upon the death of the obligor spouse; thus, life insurance cannot possibly be ordered to 'secure' that obligation.”). The very reason that most cases such as this find their way into appellate courts for resolution, however, is that the trial court has mixed and matched different attributes normally associated with either periodic alimony or alimony in gross. It is one thing to note that one of the attributes of periodic alimony normally is its payment only during the life of the payor spouse and that because of this it need not be and perhaps logically should not be "secured” by life insurance. It is quite another in the context of such cases to establish an overriding or absolute rule that whenever a court of equity orders a purchase of life insurance, it “cannot possibly " have intended a separate stream of payments from the payor spouse to be periodic alimony if it has used the term "secured” and thereby, perhaps carelessly or perhaps deliberately, connected that stream of payments with the provision for the additional benefit of life insurance.