author: CARLTON, J., MAXWELL, J.,

text:
    Cliff HENSLEY a/k/a Clifford W. Hensley a/k/a Clifford Hensley, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CA-00762-COA.
    Court of Appeals of Mississippi.
    July 15, 2014.
    Rehearing Denied Oct. 28, 2014.

      David Lee Daniels,, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   CARLTON, J.,

for the Court:

¶ 1. A Tishomingo County jury convicted Cliff Hensley of conspiracy to manufacture methamphetamine, and the trial court sentenced him as a habitual offender to serve twenty years in the custody of Mississippi Department of Corrections (MDOC). Cliff previously filed a direct appeal of his sentence, which was affirmed by the Mississippi Supreme Court. Hensley v. State, 72 So.3d 1065, 1070 (¶ 15) (Miss.2011) (Hensley I). Cliff now files this motion for post-conviction relief (PCR), asserting that the trial court erred in granting the State’s motion to amend this indictment to sentence him as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007). Finding no error, and finding the issue was previously addressed on direct appeal, we affirm. See Hensley I, 72 So.3d at 1070 (¶ 15).

FACTS

¶ 2. On June 20, 2007, Mississippi Bureau of Narcotics Officer Jeff Palmer and Corinth Police Officer Ben Caldwell conducted a traffic stop of a vehicle driven by Cliff. Cliffs brother, Jeff Hensley, was in the passenger seat. Officer Palmer had received a phone call from a Kroger pharmacy in Corinth, Mississippi, telling him that Jeff was attempting to buy pseudoephedrine.

¶ 3. Officer Palmer and Officer Caldwell arrived to Kroger to perform surveillance of the parking lot as the vehicle Jeff was riding in left. While performing surveillance, the officers observed the Hensley brothers drive to Burnsville, Alabama, and make a loop through the parking lot of a closed pharmacy. Shortly after, the officers conducted the traffic stop.

¶ 4. Officer Palmer and Officer Caldwell proceeded to question Jeff and Cliff about their trip to Alabama. Jeff gave Officer Palmer permission to search the vehicle. During the search, the officers discovered a plastic container containing $100 in cash and forty-eight loose pseu-doephedrine pills, as well as two empty boxes of pseudoephedrine and a Kroger receipt.

¶ 5. Cliff and Jeff were arrested and transported to the Tishomingo County Sheriffs Department. Officer Palmer received a written statement from Cliff admitting that he and Jeff had been purchasing pseudoephedrine pills. Cliff explained that Jeff would then take the pills to someone who cooked meth.

¶ 6. The Tishomingo County grand jury indicted Cliff for conspiracy to manufacture methamphetamine. A trial was held on May 11-12, 2010. After the State rested, the defense moved for a directed verdict, asserting that the State was unable to prove that there had been an agreement on June 20, 2007, to manufacture methamphetamine. The motion for a directed verdict was denied. The State then moved to amend the indictment pursuant to Mississippi Code Annotated section 99-19-81 to reflect Cliffs habitual-offender status. The motion previously had been filed, and defense counsel had been given notice of the motion. The judge granted the motion. The jury ultimately found Cliff guilty, and the trial court sentenced him to serve twenty years in the custody of the MDOC.

¶ 7. Cliff appealed his conviction, claiming that he could not have committed conspiracy to violate Mississippi Code Annotated section 41—29—139(b)(1) (Rev.2013) because that statute proscribed no criminal conduct, but rather, constituted a sentencing statute. The trial judge denied Cliffs appeal. Cliff appealed to the Mississippi Supreme Court, which unanimously affirmed his conviction. See Hensley I, 72 So.3d at 1070 (¶ 15).

¶ 8. On July 10, 2012, Cliff filed a motion to set aside his sentence in the trial court. The trial court treated the motion as a PCR motion, and denied relief. Hensley then filed this appeal.

STANDARD OF REVIEW

¶ 9. 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. Hughes v. State, 106 So.3d 836, 838 (¶ 4) (Miss.Ct.App.2012). We apply the requirements of Uniform Rule of Circuit and County Court 7.09 on a case-by-case basis. McCain v. State, 81 So.3d 1055, 1062 (¶ 16) (Miss.2012).

DISCUSSION

¶ 10. Cliff argues that the trial court erred when it allowed the State to amend the indictment to charge him as a habitual offender after the State rested its case-in-chief. Cliff cites to Uniform Rule of Circuit and County Court 7.09, which provides:

All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as [a] habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement (e.g., driving under the influence, Miss.Code Ann. § 63-11-30). Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.

Cliff acknowledges that the assistant district attorney (ADA) informed Cliffs counsel several days before the trial that the State intended to amend the indictment, but Cliff nonetheless asserts that he failed to receive notice or have a fair opportunity to defend against the amendment.

¶ 11. Cliff also asserts that his PCR motion was properly before the trial court. The trial court dismissed Cliffs PCR motion, explaining that the supreme court found in Hensley I that the State timely and properly amended Cliffs indictment, and thus this “established the law of the case.” However, Cliff argues that the issue presented in his PCR motion is different than that presented on direct appeal in Hensley I. In Hensley I, Cliff indeed raised a different ground on appeal wherein he asserted that his sentence as a habitual offender constituted an improper sentence for his conviction under the Mississippi Code sections identified in his indictment, but the Mississippi Supreme Court’s opinion nonetheless reflects its finding upon its review that the State timely moved to have Cliff deemed a habitual offender for sentencing. Hensley I, 72 So.3d at 1070 (¶ 14).

¶ 12. In the appeal before this Court, the State asserts that on April 29, 2010, twelve days prior to the trial, the ADA delivered copies of a motion to amend the indictment to Cliffs counsel, along with abstracts of the three prior convictions the State intended to use to enhance the sentence. The ADA told Cliffs counsel that the State intended to file the motion to amend the indictment and to seek to have Cliff sentenced as a habitual offender if Cliff chose not to plead guilty and went to trial. Pretrial, Cliffs counsel met with Cliff that day and engaged in several conversations with him, advising Cliff of the ADA’s intentions and explaining the sentencing consequences that would occur if Cliff received an enhanced sentence.

¶ 13. In Gowdy v. State, 56 So.3d 540, 541-42 (¶ 1) (Miss.2010), the supreme court held that the post-conviction amendment of defendant Gowdy’s indictment to include habitual-offender status “was prohibited” where the State filed the motion to amend on the morning of the sentencing hearing, two months after the conviction. In Gowdy, the State informed the trial court on the day after Gowdy’s conviction that it had received notice of Gowdy’s pri- or convictions in a different jurisdiction. Id. at 545 (¶ 15). The State then filed the motion to amend two months later. Id. at 541-42 (¶ 1). Upon review, the supreme court ultimately vacated the enhanced portion of Gowdy’s sentence and remanded the case for resentencing. Id. at 546 (¶ 24). The supreme court recognized that Rule 7.09 “does not speak to the timing of the amendment, only that the defendant must be ‘afforded a fair opportunity to present a defense’ and ‘not be unfairly surprised.’ ” Gowdy, 56 So.3d at 545 (¶ 16).

¶ 14. In Boyd v. State, 113 So.3d 1252, 1256 (¶ 12) (Miss.2013), the supreme court further clarified that “adequate notice is achieved through formal pleadings which include the specific amendment to be offered and which are filed sufficiently in advance of trial to ensure that a defendant will have a ‘fair opportunity to present a defense’ and will not be ‘unfairly surprised.’ ” The Boyd court found inadequate notice where the State informed the defendant “during pretrial proceedings on the morning of trial that, if a conviction was obtained, the State would seek to sentence him as a subsequent offender.” Id.

¶ 15. Applying the requirements set forth in Gowdy, this Court has found that a defendant “had sufficient pretrial notice of the habitual-offender charge, including the prior convictions relied on by the State” where the motion to amend the indictment was filed six days prior to trial. Newberry v. State, 85 So.3d 884, 891 (¶ 17) (Miss.Ct.App.2011); see also McCain v. State, 81 So.3d 1055, 1062 (¶ 15) (Miss.2012) (The supreme court held where the motion to amend the indictment was filed seven months prior to trial, the defendant received fair notice, was not “unfairly surprised” by the habitual-offender addition, and was “afforded a fair opportunity to present a defense.”); Ellis v. State, 469 So.2d 1256, 1258 (Miss.1985) (The supreme court held that it is permissible to amend the indictment on the date of trial to reflect a defendant’s habitual-offender status, when defense counsel is aware of the State’s intentions and the defendant is fully aware of the State’s intentions during plea negotiations.).

¶ 16. Cliff bears the burden of proving that he was unfairly surprised by the amendment to the indictment. Williams v. State, 522 So.2d 201, 209 (Miss.1988) (A PCR movant “bears the burden of presenting a record which is sufficient to under-gird his assignments of error.”). Turning to review the record before us, we find that the record contains the March 3, 2013 affidavit of Cliffs trial counsel, Nicholas Bain, wherein Bain attested that on April 29, 2010, he received a copy of a motion to amend Cliffs indictment to reflect Cliffs status as a habitual offender pursuant to section 99-19-81. Bain stated that he. examined the motion and the copies of the abstracts of Cliffs prior convictions. Bain affirmed that during the trial, the motion to amend was filed and presented to the trial court following the presentation of the State’s case on May 12, 2010. Bain stated that he entered an objection to the motion on the ground that the amendment sought was one of súbstance rather than form, but explained that he had no other objections or plausible defenses to the motion. Bain stated that he “had ample time” to object to the motion to amend the indictment, if other grounds to do so had existed. Bain confirmed that prior to the trial, he “had several discussions with [Cliff] concerning the ramifications of the motion and the consequences concerning sentencing” if the jury convicted Cliff as a habitual offender. The record reflects Cliff received sufficient pretrial notice of the State’s motion and its intent to amend his indictment to charge him as a habitual offender.

¶ 17. Having found that the State provided Cliff sufficient notice of its motion and intent to aménd the indictment herein, we also find Cliff has failed to demonstrate that he was denied the opportunity to present a defense to his habitual-offender status or the prior offenses establishing such status. In his brief, Cliff simply claims he “could not know if the State would be able to acquire the exemplification and certification of his out-of-state convictions necessary to sustain the motion.” In Lamb v. State, 124 So.8d 84, 86 (¶ 4) (Miss.Ct.App.2013), this Court explained that “sentencing enhancements are determined by the court after the guilt phase of the trial.” The Lamb court determined that “[c]harging Lamb as a habitual offender did not affect the substance of the crime of which he was charged, but only the sentencing.” Id. (citing Adams v. State, 772 So.2d 1010, 1020 (¶ 49) (Miss.2000)). This Court ultimately held that the “timing of the amendment relative to the guilt phase of the trial does not bear on Lamb’s ability to prepare a defense to the sentencing enhancement.” Id.

¶ 18. In the recent supreme court case of Williams v. State, 131 So.3d 1174, 1177 (¶ 11) (Miss.2014), the supreme court found that the defendant received sufficient notice where the State filed its motion to amend the indictment three days prior to trial to reflect the defendant’s habitual-offender status under section 99-19-81. The supreme court noted that the State’s motion specifically provided the details of Williams’s prior convictions, including the cause numbers, dates, and courts in which the convictions were obtained. Williams, 131 So.3d at 1177 (¶ 9). The notice provided by the State in the instant case shows that Cliff also received sufficient pretrial notice of the State’s intent to file a motion to amend the indictment. Furthermore, we recognize that in Cliffs direct appeal, Hensley I, the supreme court stated that “[t]he State timely moved to deem Cliff a habitual offender based on his prior felony convictions.” Hensley I, 72 So.3d at 1070 (¶ 14).

¶ 19. In conclusion, Cliffs assertion that the State failed to provide adequate notice of its intent to seek enhanced punishment for Cliff as a habitual offender under 99-19-81 lacks merit, and Cliff failed to show that he lacked the opportunity to present a defense to his habitual-offender status or the prior offenses used to establish such status. Accordingly, we find no error in the trial court’s dismissal of Cliffs PCR motion.

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

LEE, C.J., IRVING, P.J., BARNES, ISHEE AND JAMES, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J., ROBERTS AND FAIR, JJ.; IRVING, P.J., AND JAMES, J., JOIN IN PART. ROBERTS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

MAXWELL, J.,

concurring in part and in result:

¶21. I agree Hensley had sufficient notice of the State’s intent to seek an enhanced sentence. The notice requirement was satisfied when the prosecutor delivered copies of the State’s proposed motion to amend the indictment, along with Hensley’s three qualifying convictions, to Hensley’s counsel twelve days before trial. And as the majority points out, Justice Chandler, writing for a unanimous supreme court — albeit addressing a slightly different challenge to Hensley’s enhanced sentence — has already emphasized the motion to deem Hensley a habitual offender was “timely ” filed by the State. Hensley v. State, 72 So.3d 1065, 1070 (¶ 14) (Miss.2011) (emphasis added). So there is already an appellate ruling that Hensley’s habitual offender “sentence is proper. Id. (emphasis added).

¶22. Still, I write separately to point out that Hensley could not bring a Gowdy-based claim in his PCR motion.

¶ 23. Hensley asserts Gowdy — handed down after he was convicted and sentenced — retroactively applies to his case. As support, he cites McCain v. State, 81 So.3d 1055, 1059 (¶ 8) (Miss.2012). In that opinion, the plurality acknowledged a very limited retroactive application of Gowdy’s newly enunciated rule regarding criminal procedure. Because McCain’s “case [was] not yet final when the mandate issued in Gowdy,” the plurality applied Gowdy to McCain’s insufficient-notice claim, ultimately distinguishing Gowdy and holding McCain had been properly notified. McCain, 81 So.3d at 1059 (¶¶ 8-15) (plurality opinion). I find Hensley was in the same boat as McCain.

¶ 24. When the mandate issued in Gow-dy, Hensley’s direct appeal was still pending before the supreme court. So any retroactive application was limited to his pending direct appeal. Like McCain, Hensley could have asserted his insufficient-notice claim in that appeal and called upon Gowdy in support. But what Hensley could not do is wait until his case was final and then try to collaterally attack his sentence, claiming “retroactive application” of Gowdy. See Foster v. State, 687 So.2d 1124, 1129 (Miss.1996) (citations omitted) (“Post-conviction relief is not granted upon facts and issues which could or should have been litigated at trial and on appeal.”).

¶ 25. McCain made clear that Gowdy’s dictates only applied retroactively to cases on direct review, not final cases being collaterally attacked. McCain, 81 So.3d at 1059 (¶ 8). In restraining Gowdy’s application only to direct review, not post-conviction relief, the plurality in McCain cited a variety of cases addressing the retroactivity of newly announced rules of law. Our supreme court’s reasoning is not surprising since Gowdy dealt merely with procedural and not substantive aspects of enhanced sentencing, so for retroactivity purposes it could not be considered a watershed decision applicable to already-final cases. See Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (“Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.”).

¶ 26. McCain is in line with our supreme court’s similar holding that Appren-di-type sentencing violations are procedural in nature and not to be addressed retroactively on collateral review. See Turner v. State, 953 So.2d 1063, 1076 (¶ 50) (Miss.2007) (refusing to apply the holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), retroactively).

¶ 27. For the small number of petitioners like Hensley, whose cases were still pending when Gowdy became the law, the opportunity to call upon Gowdy came in their direct appeal. And any failure to seize upon that opportunity results in waiver. See Foster, 687 So.2d at 1129. Thus, for the additional reason that Gowdy does not apply retroactively to PCR cases, I would affirm.

GRIFFIS, P.J., ROBERTS AND FAIR, JJ., JOIN THIS OPINION. IRVING, P.J., AND JAMES, J., JOIN THIS OPINION IN PART.

      . In Cliff Hensley’s prior direct appeal to the Mississippi Supreme Court, Hensley I, the supreme court refers to him as "Cliff” throughout the opinion. In this opinion, we also refer to him as Cliff for the sake of continuity with the previous opinion.

      . Per the facts of Hensley I, Officer Palmer helped create a list for the State Line Narcotics Task Force of individuals who were known to cross state lines to purchase pseu-doephedrine. This list was placed at pharmacies, and the pharmacists or pharmacy technicians would contact the task force when an individual on the list bought pseudoephed-rine. Jeff Hensley’s name appeared on this list.

      . Hensley filed an application for leave to proceed in the trial court, alleging that his right to due process was violated when his indictment was amended during his trial to charge him as a habitual offender. On December 13, 2012, the Mississippi Supreme Court granted Hensley’s application for leave to proceed in the trial court.

      . McCain, 81 So.3d at 1059 (¶ 8) (quoting Beard v. Banks, 542 U.S. 406, 411, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004) ("State convictions are final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiora-ri has elapsed or a timely filed petition has been finally denied."); Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) ("[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a clear break' with the past.”); Whitaker v. T & M Foods, Ltd., 7 So.3d 893, 901 (¶ 23) (Miss.2009) ("[N]ewly enunciated rules of law are applied retroactively to cases that are pending trial or that are on appeal, and not final at the time of the enunciation.")).

      . In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the United States Supreme Court held: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    Joe O’NEAL, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00685-COA.
    Court of Appeals of Mississippi.
    July 15, 2014.
    Rehearing Denied Oct. 28, 2014.

      Joe O’Neal, appellant, pro se.
    Office of the Attorney General by Brad Alan Smith, attorney for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On November 12, 2008, Joe O’Neal pleaded guilty, in Tishomingo County Circuit Court cause number CR08-103, to the aggravated assault of his mother, Barbara Ward, under Mississippi Code Annotated section 97-3-7 (Supp.2013). He was sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC), with nineteen suspended, twelve months’ credit for time served, and five years of post-release supervision (PRS). On January 20, 2011, an MDOC field officer petitioned the trial court to terminate O’Neal’s PRS. The court granted the motion and terminated the PRS.

¶ 2. On September 26, 2011, a Tishom-ingo County grand jury indicted O’Neal for the aggravated assault of Ward in cause number CR11-018. On October 19, 2011, the trial court conducted a revocation hearing regarding O’Neal’s suspended sentence. The trial court revoked O’Neal’s suspended sentence and sentenced him to serve nineteen years in the custody of the MDOC.

¶ 3. O’Neal filed a motion for post-conviction relief (PCR) challenging the judgment in cause number CR08-103, which the trial court denied. O’Neal now appeals, asserting: (1) he was ineligible to be sentenced to PRS; (2) the termination of his PRS terminated his entire sentence, (3) his sentence exceeds the maximum allowable by law, (4) reinstatement of his sentence put him in double jeopardy, and (5) his counsel’s assistance was ineffective. We will address the first two issues together, as they are related.

STANDARD OF REVIEW

¶ 4. When reviewing a trial court’s denial or dismissal of a PCR motion, we will only disturb the trial court’s decision if it is 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. PRS

¶ 5. O’Neal asserts that because he was not incarcerated prior to serving his term of reporting supervision, the trial court could not sentence him to PRS.

¶ 6. Under Mississippi Code Annotated section 99-19-23 (Rev.2007), any term of incarceration while awaiting trial “shall be applied on any sentence rendered by a court of law[.]” O’Neal was credited for twelve months of time served; therefore, he was incarcerated prior to a term of reporting supervision.

¶ 7. Mississippi Code Annotated section 47-7-34 (Rev.2011) governs PRS, and states in relevant part, “When a court imposes a sentence upon a conviction for any felony committed after June 30, 1995, the court, in addition to any other punishment imposed if the other punishment includes a term of incarceration in a state or local correctional facility, may impose a term of post-release supervision.” In Johnson v. State, 925 So.2d 86, 103 (¶ 32) (Miss.2006), the Mississippi Supreme Court clarified the previously confusing interpretation of the statute:

For purposes of clarity, consistency and cohesion, we hold today that the circuit and county courts of this state have the power to suspend, in whole or in part, a convicted felon’s sentence under [Mississippi Code Annotated section] 47-7-33 inasmuch as this Court and the legislature have empowered them to do so under [section] 47-7-34, and to the extent that the practice has been historically ingrained in our criminal courts’ sentencing practice.

Thus, the court was within its discretion to suspend O’Neal’s sentence “in whole or in part” prior to sentencing him to five years of PRS. Johnson, 925 So.2d at 102 (¶ 32).

¶ 8. Additionally, O’Neal claims that he was released from all obligations when his PRS was terminated, because termination of his PRS terminated his entire sentence.

¶ 9. At sentencing, O’Neal was specifically instructed that the suspended sentence was “contingent on [his] good behavior, [and committing] no violation of any state, federal[,] or local law[.]” The contingency provision was not terminated along with his PRS. The court’s order terminating the PRS makes no mention of terminating O’Neal’s nineteen-year suspended sentence. This issue is without merit.

II. MAXIMUM SENTENCE

¶ 10. O’Neal argues that his original sentence exceeded the maximum allowed by law because his twenty-year sentence combined with his five years of PRS is greater than the statutory maximum. The maximum sentence for aggravated assault is twenty years. See Miss.Code Ann. § 97-3-7(2)(a).

¶ 11. In Fluker v. State, 2 So.3d 717, 720 (¶ 9) (Miss.Ct.App.2008), this Court explained that Fluker’s “years of post-release supervision were inherent in the ... years that his sentence was suspended and not separate from it.” This Court applied the same rationale in Triste v. State, 77 So.3d 116, 118-19 (¶ 8) (Miss.Ct.App.2011), and Dickens v. State, 119 So.3d 1141, 1145 (¶ 9) (Miss.Ct.App.2013). O’Neal’s five years of PRS are not in addition to the nineteen years suspended but included in the nineteen years. O’Neal is never in jeopardy of serving more than twenty years in the custody of the MDOC for aggravated assault; thus, this issue is without merit.

III. DOUBLE JEOPARDY

¶ 12. Claiming that he has been twice punished for the same offense, O’Neal asserts that the reinstatement of his suspended sentence is double jeopardy.

¶ 13. When reinstating a suspended sentence:

The court may not impose a sentence greater than the original sentence, but can sentence the defendant to the full original sentence if it deems such an action necessary. Only if the court attempts to administer a longer sentence than what was originally conferred upon the defendant will it be considered double jeopardy.

Brunson v. State, 796 So.2d 284, 287 (¶ 14) (Miss.Ct.App.2001) (internal citations omitted) (citing Johnson v. State, 753 So.2d 449, 455 (¶ 15) (Miss.Ct.App.1999)). Here, the trial court reinstated the nineteen years of O’Neal’s sentence that it had originally suspended. Because the court did not attempt to administer a longer sentence than the original suspended sentence, the sentence is not considered double jeopardy. This issue is without merit.

IV.INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 14. O’Neal asserts that his attorney’s assistance was ineffective because he failed to inform O’Neal of his right to a direct appeal of his sentence. For O’Neal to prove ineffective assistance of counsel, he must show that “(1) [his] counsel’s performance was deficient, and (2) that deficient performance prejudiced [him].” McCollum v. State, 81 So.3d 1191, 1192-93 (¶ 8) (Miss.Ct.App.2012) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

¶ 15. During his guilty-plea hearing on cause number CR08-103, the trial court questioned O’Neal: .

Q. A very important question: Do you understand if you did go to trial and the jury found you guilty or convicted you that you’d have the right to appeal that conviction to the State Supreme Court, but if you enter a plea of guilty here today, and if I accept your plea of guilty, that you will have no right to appeal whatsoever?
A: Yes, sir.

¶ 16. As this Court has stated numerous times, “[statements made in open court under oath ‘carry a strong presumption of veracity.’ ” Cane v. State, 109 So.3d 568, 571 (¶ 9) (Miss.Ct.App.2012) (quoting Nichols v. State, 955 So.2d 962, 965 (¶ 6) (Miss.Ct.App.2007)). The trial court instructed O’Neal that by pleading guilty he was waiving his right to an appeal, and he stated in open court that he understood. This issue is without merit.

¶ 17. Additionally, O’Neal argues that his attorney’s assistance was ineffective because he failed to present any argument that his PRS had been terminated and that the court lacked jurisdiction over him. As stated above, while his PRS had been terminated, O’Neal was still under the trial court’s jurisdiction during his suspended sentence. This issue is without merit.

¶ 18. THE JUDGMENT OF THE TISHOMINGO COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TISHOM-INGO COUNTY.

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


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

text:
    The CHARTER OAK FIRE INSURANCE COMPANY, Appellant v. B.J. ENTERPRISES OF MISSISSIPPI, LLC, Appellee.
    No. 2012-CA-00519-COA.
    Court of Appeals of Mississippi.
    July 15, 2014.
    Rehearing Denied Oct. 28, 2014.

      Christopher Herbert Coleman, Jackson, Jim Warren III, attorneys for appellant.
    David M. Ott, Hattiesburg, Kristopher Alan Powell, attorneys for appellee.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Charter Oak Fire Insurance Company (“Charter Oak”) brought this subro-gation action against BJ Enterprises of Mississippi, LLC (“BJ”). Charter Oak sought to recover the amount it paid as a result of a fire loss that was covered by. its insurance policy. The jury returned a general verdict for BJ, and Charter Oak now appeals. We reverse and remand this case for further proceedings. •

FACTS

¶ 2. At the time of the fire loss, MCH Transportation Company (“MCH”) was the named insured on a policy issued by Charter Oak Fire Insurance Company, a subsidiary of Travelers Indemnity Company. The policy insured a commercial property and building located in Clinton, Mississippi.

¶3. TranSource Group, Inc. (“Tran-Source”), was the owner of record of the property. TranSource, like MCH, was solely owned by James Harrell. MCH managed the property.

¶4. In 2001, TranSource entered a lease-purchase agreement with Trans-Pro, Inc. (“Trans-Pro”). The agreement provided that TranSource would convey title of the property to Trans-Pro after an agreed-upon sum had been paid. Until such time, TranSource leased the property to Trans-Pro..

¶ 5. Jackson Truck and Trailer, Inc. (“Jackson Truck”) bought Trans-Pro and assumed the lease-purchase agreement. Jackson Truck was jointly owned by Harrell and R.J. Williams. Jackson Truck subleased a portion of the property to JFF Transportation Company (“JFF”). JFF’s stock was owned two-thirds by Harrell and one-third by John C. Minninger.

¶ 6. Approximately four months before the fire, JFF subleased a portion of its lease to BJ. Minninger and Edward R. (Bob) Cochran owned BJ.

¶7. Although there is some common ownership of the various entities involved, each named entity is a separate and distinct business entity. Harrell owed all or part of each entity except B J.

¶8. MCH, Jackson Truck, and JFF used the property in their trucking operations. Each company used wooden pallets. BJ made useable pallets out of broken pallets and sold pallets to MCH, Jackson Truck, and JFF.

¶ 9. On May 21, 2007, the building on the property was destroyed by fire. MCH made a claim on its insurance policy, and Charter Oak paid MCH the sum of $264,308.58 for the loss. The amount paid by Charter Oak did not fully cover MCH’s loss. As a result, Charter Oak and MCH entered a written agreement to jointly pursue recovery from any party(ies) responsible for the fire loss.

¶ 10. On March 17, 2008, Charter Oak and MCH filed a complaint in the Circuit Court of Hinds County, Mississippi, and it named JFF and BJ as defendants. The complaint asserted a claim for subrogation and alleged that BJ was vicariously liable for the negligence of its employees in starting the fire. The complaint asked for a monetary judgment in the amount of the loss incurred.

¶ 11. While this subrogation action was pending, on October 12, 2007, as the authorized representative of TranSource, Harrell signed a document titled “Assignment of Rights to MCH Transportation Company.” This document read:

On May 21,2007, the property bearing municipal address 1205 Industrial Drive, Clinton, Mississippi 39056 (hereinafter “the Property”) was owned by Tran-Source Group, Inc. (hereinafter “Tran-Source”). The Property was insured by The Charter Oak Fire Insurance Company (hereinafter “Charter Oak”) under a property insurance policy issued to MCH Transportation Company (hereinafter “MCH”). On May 21, 2007 the Property was damaged by fire (hereinafter “the Loss”). As a result of the Loss, Charter Oak paid MCH proceeds from the property insurance policy under claim number CFE7197.
In consideration of the fact that MCH maintained insurance covering the Property, and TranSource as owner of the Property received the benefit of Charter Oak’s payment for the Loss, TranSource hereby assigns to MCH all rights it had as owner of the Property as of May 21, 2007[,] to pursue any and all claims against any and all parties responsible for the Loss, whether based in contract, tort or warranty. This assignment of rights extends to any proceeds of settlement or judgment that may be recoverable from any party responsible for the Loss. TranSource represents and warrants that it has not assigned any rights to claims or the Loss to any person or legal entity other than Charter Oak to the extent of its payment.
TranSource agrees to provide all reasonable assistance to MCH in the pursuit of any claim against any responsible parties, including cooperation with production of documents and testimony relevant to proving this claim. In the event that any term[ ] or provision of this Assignment of Rights shall be held illegal, invalid, unenforceable or inoperative as a matter of law, the remaining terms and provisions of this contract shall not be affected thereby, but shall be valid and shall remain in full force and effect.

¶ 12. Approximately six months later, on April 1, 2008, Harrell and Williams signed a document titled “Statement and Declaration of Waiver of Rights by James Harrell and R.J. Williams, individually and for Jackson Truck and Trailer, MCH and TranSource Group” (the “Statement”). Harrell executed the Statement on his individual behalf and as the representative of TranSource and MCH. Williams executed the Statement on his individual behalf and as the representative of Jackson Truck. The Statement read:

The undersigned[,] James Harrell and R.J Williams, individually and on behalf of [Jackson Truck], MCH and Tran-Source Group[,] .... hereby waive any rights of recovery against JFF ... and BJ ... to the extent that [Jackson Truck], MCH or TranSouree Group may have rights against them arising out of the fire that occurred on or about May 21, 2007.... This waiver is intended to be an exercise of rights under insurance policy ... by [Charter Oak].... This waiver is specifically intended to be an exercise of rights granted by the ... policy of [Charter Oak], specifically the rights contained in the section of the policy titled “Commercial Property Conditions” and in subparagraphs 2, b(l) and c of the paragraph thereunder titled “Transfer of Rights of Recovery Against Others to Us.” All potential claims and rights of recovery against JFF ... and B J ... are hereby being waived because the losses in question occurred on property with regard to which JFF ... and BJ ... were tenants. The undersigned James Harrell Further states in this regard that he is the sole owner of MCH and TranSouree Group and half owner of [Jackson Truck], along with R.J. Williams who owns the other half of the stock of [Jackson Truck], The undersigned James Harrell also owns 2/3 of the stock of JFF ..., and BJ ... is further a related entity being owned in part by John C. Minninger, co-owner of JFF[.]
Pursuant to those terms and because this loss occurred on property covered by the [Charter Oak] policy and because the party or parties that may be responsible for said fire are business firms in which I have an ownership interest and which are tenants of a business in which I have an ownership interest, these rights against these parties are waived by the undersigned individually and on behalf of the companies that they own and are authorized to act for.
The undersigned James Harrell and R.J. Williams do make these statements and declarations individually and as binding statements and declaration including the waivers for and on behalf of [Jackson Truck], MCH and TranSouree Group, having been duly authorized to do so by these companies.

¶ 18. Three days later, Harrell’s attorney sent Charter Oak a letter that gave notice of Harrell and his companies’ intent to waive their right not to pursue subrogation against JFF and B J. The letter read:

Our firm represents James A. Harrell and his companies, [MCH], [Tran-Source] and his interest in [Jackson Truck]. Please allow this letter to serve as notice that, James A. Harrell and his above referenced companies, pursuant to and in exercise of their rights under the Charter Oak Fire Insurance Company policy of insurance numbered 10660-5392H017, and contrary to any previously signed Assignment of Rights to [MCH], ... hereby exercise their right not to pursue subrogation against any tenants. James A. Harrell and the companies that we represent hereby waive their rights against other parties that may be responsible for damages due to a fire occurring on May 21, 2007[,] at a building covered by the aforementioned policy number IO660-5392H017. In particular, James A. Harrell and the companies we represent exercise such rights arising under the section of said policy entitled “COMMERCIAL PROPERTY CONDITIONS,” paragraph titled, “I, TRANSFER OR [sic] RIGHTS OF RECOVERY AGAINST OTHERS TO US,” subparagraphs number 2, b(l) and c. Pursuant to those terms and because this loss occurred on property covered by the aforementioned policy, and because the party or parties that may be responsible for said fire is a business firm in which James A. Harrell has an ownership interest and which are tenants of a business in which James A. Harrell has an ownership interest, be it known to all that James A. Harrell and his companies, to the extent of his interests, hereby waive any rights against those parties being JFF Transportation, Inc.[,] and BJ Enterprises, LLC.

¶ 14. The trial began on May 23, 2011. That morning, the parties voluntarily dismissed MCH and JFF. Only Charter Oak and B.J. remained as the parties to the lawsuit.

¶ 15. Since the testimony as to how the fire occurred or was discovered is not essential to the outcome of this appeal, we have not detailed the evidence presented as it relates to the cause of the fire. The fire was discovered by BJ’s employees on May 21, 2007, and the exact location of the fire was disputed.

¶ 16. The jury returned a general verdict in favor of BJ. Thereafter, the trial court entered final judgment. Charter Oak filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the trial court denied. It is from this judgment that Charter Oak now appeals.

ANALYSIS

¶ 17. This appeal considers whether the Statement was sufficient to waive Charter Oak’s contractual right of subrogation. The trial court determined that this was a question for the jury to decide. As a result, the trial court gave Jury Instruction 20, which read: “The Court instructs the jury that if you find by a preponderance of the evidence that MCH waived Charter Oaks’ rights to sue the Defendant to recover money it paid under the policy, then your verdict must be for the Defendant.” There was no other jury instruction on waiver.

¶ 18. An insurer can waive its right to subrogation. A waiver is “the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right.” Bellemere v. Geico Gen. Ins. Co., 977 So.2d 363, 369 (¶ 12) (Miss.Ct.App.2007) (citations omitted). “Since the right of subrogation arises for the benefit of the insurer, it may waive its right to subrogation, either by contract or by conduct inconsistent with the right of subrogation, and the waiver may be either express or implied.” Couch on Insurance § 224:139 (3d ed. 2000). The party claiming the waiver of an important policy provision must prove it by clear and convincing evidence. N.H. Ins. Co. v. Smith, 357 So.2d 119, 121 (Miss.1978) (citing Mich. Millers Mut. Ins. Co. v. Lindsey, 285 So.2d 908, 911 (Miss.1973)).

¶ 19. Here, the question is whether Charter Oak’s insurance policy gave MCH, or the Harrell-owned companies, the contractual right to waive subrogation. The insurance policy contained a provision titled “Transfer of Rights of Recovery Against Others to Us.” In this provision, Charter Oak was granted the right of sub-rogation and gave the named insured the right to waive subrogation under certain circumstances. The provision read:

If any person or organization to or for whom we make payment under this Coverage Part has rights to recover damages from another, those rights are transferred to us to the extent of our payment. That person or organization must do everything necessary to secure our rights and must do nothing after loss to impair them. But you may waive your rights against another party in writing:
1. Prior to a loss to your Covered Property or Covered Income.
2. After a loss to your Covered Property or Covered Income only if, at time of loss, that party is one of the following:
a. Someone Insured by the insurance;
b. A business firm:
(1) Owned or controlled by you; or
(2) That owns or controls you; or
c. Your tenant.

This will not restrict your insurance.

¶ 20. “The interpretation of insurance policy language is a question of law. Questions of law are reviewed de novo.” Robichaux v. Nationwide Mut. Fire Ins. Co., 81 So.3d 1030, 1035 (¶ 10) (Miss.2011) (Citations omitted). “When the words of an insurance policy are plain and unambiguous, the Court will afford them their plain, ordinary meaning and will apply them as written.” Id. at 1036 (¶ 15) (citing Lewis v. Allstate Ins. Co., 730 So.2d 65, 68 (Miss.1998)).

¶21. The first two sentences of this provision are clear and unambiguous. This provision gives Charter. Oak the contractual right of subrogation. It also requires MCH, as the named insured, to cooperate and to support Charter Oak’s subrogation right. The third sentence of this provision gives MCH the contractual right to waive subrogation under certain circumstances. The Statement is clearly MCH’s attempt to waive subrogation against BJ under this third sentence. The determinative question is whether the Statement is sufficient to constitute a waiver.

¶ 22. The outcome of this case rests on the interpretation of this third sentence. The third sentence of this provision is also clear and unambiguous. There is no allegation or evidence presented that the written waiver was granted “[p]rior to a loss to your Covered Property.” Thus subpara-graph (1) is not applicable. Thus, we consider the following language:

But you may waive your rights against another party in writing: ...
2. After a loss to your Covered Property or Covered Income only if, at time of loss, that party is one of the following:
a. Someone Insured by the insurance;
b. A business firm:
(1) Owned or controlled by you; or
(2) That owns or controls you; or
c. Your tenant.

¶ 23. “[Y]ou” must refer to MCH as the named insured. Thus, MCH may contractually waive its, and Charter Oak’s, rights against another party, but it (the waiver) must be “in writing.” “[T]hat party” must refer to B J. Thus, the Statement could be an effective contractual waiver if BJ “is one of the following.”

¶ 24. First, MCH’s waiver in the Statement would be effective if BJ was “(s]ome-one [i]nsured by the insurance.” BJ was not a named insured nor an additional insured under the policy. Thus, the waiver in the Statement could not be effective under 2(a).

¶ 25. Next, MCH’s waiver in the Statement would be effective if BJ was “[a] business firm (l)[o]wned or controlled by you; or (2)[t]hat owns or controls you.” BJ was a limited-liability company that was owned by its members, who were Min-ninger and Cochran. There was'no allegation or evidence presented that MCH owned or controlled BJ. Thus, the waiver in the Statement could not be effective under 2(b).

¶26. Finally, MCH’s waiver in the Statement would be effective only if BJ was MCH’s “tenant.”

¶27. BJ contends that Harrell stands in the center of all of the parties, owning all or some of each one except BJ. MCH, Jackson Truck, and JFF are all involved in trucking and use pallets. - Minninger and Cochran located the de-nailer needed to pull old broken pallets apart and the dumpster where unusable scraps could be burned. BJ was making pallets for these “sister” companies to use out of the broken pallets the “sister” companies provided in order to provide the “sister” companies a cheap source of pallets.

¶ 28. BJ argues that Minninger obtained the agreement of Harrell and Williams (and, therefore, MCH, Tran-Source, and Jackson Truck owned by them) for BJ to be a tenant and have use of the back shed area of the building for the pallet operation for the benefit of these related companies as well as JFF, which Minninger owned with Harrell. In fact, Minninger testified:

Q. At the time that JFF moved in as a tenant at the building at 1205 Industrial Boulevard in Clinton, was that as a result of conversations and agreement with Jim Harrell and RJ Williams and with their knowledge and understanding among you all?
A. Oh, yes, sir. Jim told me that it would, you know, ... help everybody. They had a vacant building there, and so they had a cost going on that they weren’t getting revenue for, and I needed a place to go, so Jim, you know — I really sat down with RJ, and RJ and I haggled out the rent, and I whined a lot and it got down....
Q. Okay. Now, I want to focus on the time when you started BJ along with Bob Cochran. Did you make Jim Harrell and RJ Williams aware of what you were doing did they agreed to it?
A. Yes, sir. I mean there was no problem, because they all knew I needed the pallets. They all knew what was going on. The space was there. In fact, when we arbitrated the rent, I said, well, if you’re going up to $8,500, you need to get a couple of your pieces [of] equipment back there, because I need that space for BJ, and so he moved that. He had like a backhoe and another piece of commercial equipment underneath the shed.

The only written lease on the property was the Lease Purchase Agreement between TranSource, the owner of the property, and Jackson Truck. All of the other agreements were verbal.

¶ 29. Thus, BJ’s claim of waiver is premised on Harrell. BJ contends that Harrell was clearly in control of all of these companies and the verbal lease agreements, as he had absolute ownership of MCH and TranSource, controlling ownership of JFF, and half ownership of Jackson Truck. To establish the waiver of an important policy provision, BJ must prove the waiver by clear and convincing evidence. N.H. Ins., 357 So.2d at 121.

¶ 30. There was simply no evidence to support the conclusion that BJ was the tenant of MCH. In fact, there was no evidence to indicate that there is a factual issue in dispute. The only testimony about the rental agreement is from Min-ninger. He testified that he negotiated the lease with Williams and JFF. Although Harrell was a part owner of JFF and was aware of the sublease by JFF, there is no evidence that MCH leased the property to B J.

¶ 31. Further, to find that BJ was the tenant of MCH or that there was a factual dispute to be decided as to that issue, this Court would have to disregard the corporate entities of MCH, TranSource, and Jackson Truck. The evidence presented and authority cited do not support such. The Mississippi Supreme Court has previously refused to pierce the corporate veil of five entities that shared common ownership and engaged in related activities. Index Drilling Co. v. Williams, 242 Miss. 775, 785, 137 So.2d 525, 528 (1962).

¶ 32. Accordingly, we find that this provision of the insurance policy was clear and unambiguous. As such, we must interpret this provision as a matter of law, and our review is de novo. Robichaux, 81 So.3d at 1035 (¶ 10). Therefore, MCH did not have the contractual right to waive Charter Oak’s right of subrogation against BJ. The judgment of the trial court is reversed. We remand this case for further proceedings consistent with this opinion.

¶ 33. Because we find this issue to require reversal, we do not address the other issues presented.

¶ 34. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY 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., BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY FAIR, J.

JAMES, J.,

dissenting:

¶ 35. I disagree with the majority’s conclusion that MCH did not have the right to waive subrogation against BJ. Firstly, I find that the jury’s general verdict in favor of BJ could have been based on a finding that BJ was not liable for the fire; therefore, the verdict should be affirmed. Nevertheless, I find no error with Jury Instructions 17 and 20 and would affirm the judgment of the circuit court; therefore, I respectfully dissent.

¶ 36. On appeal, Charter Oak raised the following issues: (1) whether the trial court erred in giving Jury Instructions 17 and 20, which submitted questions of law to the jury; and (2) whether Charter Oak is entitled to pursue subrogation against BJ.

I. Multiple Theories

¶ 37. As a preliminary matter, I would find that the general verdict in favor of B J should be affirmed because the verdict could be sustained on a finding that BJ was not liable for the damage caused to the property. The Mississippi Supreme Court has held that “where there is a general verdict for [either party] under a declaration containing two counts leading to the same liability, such verdict is sufficient if sustained under either count.” Ill. Cent. R.R. Co. v. Brent, 133 So.3d 760, 770 (¶ 19) (Miss.2013) (citing Miss. Cent. R.R. Co. v. Aultman, 173 Miss. 622, 641, 160 So. 737, 739 (1935)). Furthermore, “[w]hen reviewing a jury verdict, this Court must consider the evidence in the light most favorable to the verdict.” Johnson v. Cumberland, 91 So.3d 646, 651 (¶ 17) (Miss.Ct.App.2012) (citing Snapp v. Harrison, 699 So.2d 567, 569 (¶ 7) (Miss.1997)).

¶ 38. Here, Charter Oak’s complaint alleged that BJ was liable for the fire that damaged the property. BJ denied that it, or its employees, was responsible for the fire. During the trial, B J offered evidence and testimony disputing their responsibility for the fire. Jury Instruction 19 provided:

[Charter Oak] must prove by a preponderance of the evidence that [BJ] violated some legally imposed duty and ... proximately caused damages to the insured of [Charter Oak] ...[.]
If it cannot be determined by a preponderance of the evidence what caused the fire which damaged or destroyed the subject premises, then your verdict shall be for ... [B J].

Likewise, Jury Instruction 23 provided:

You should not interpret the fact that the Court has given you instructions about [Charter Oak’s] damages, if any, as an indication ... that the Court believes that [Charter Oak] should, or should not, win this case. It is your task to first decide whether [BJ] is ha-ble.
If you determine that [BJ] is not liable, then you should return a verdict in favor of the [d]efendant[,][BJ], and no consideration of damages by you is necessary.

The jury returned a general verdict in favor of BJ. Therefore, we cannot know for certain whether the jury based its decision upon a finding that BJ was not liable for the fire, that BJ was an insured under the policy, or that Charter Oak waived its right to subrogation. However, because the verdict could be sustained on the theory that B J was not responsible for starting the fire and was not liable for the resulting damage and loss, I see no reason to disturb the jury’s verdict. Therefore, I would affirm.

II. Jury Instructions 17 and 20

¶ 39. Charter Oak asserts that the trial court erred in giving Jury Instructions 17 and 20, arguing that the instructions submitted questions of law to the jury. I disagree.

¶ 40. Jury instructions are the statements of the law governing the case, and “[i]t is the trial judge’s duty to properly instruct the jury on controlling principles of Mississippi law.” Busby v. Anderson, 978 So.2d 670, 679 (¶ 35) (Miss.Ct.App.2006) rev’d on other grounds, 978 So.2d 637 (Miss.2008) (citing Fielder v. Magnolia Bev. Co., 757 So.2d 925 (¶ 10) (Miss.1999)). It appears that here, the trial court used standard jury instructions: “It is [trial court’s] duty to instruct you as to the law and it is [the jury’s] duty to follow these instructions.... [The jury is] to apply the law to the facts and in this way decide the case” Miss. Model Jury Instructions: Civil § 1:3 (2013). Also, “[i]t is [the jury’s] duty to determine the facts and to determine them from the evidence produced in open court.” Id. at § 1:5.

A. Jury Instruction 17

¶ 41. Charter Oak argues that Jury Instruction 17 was improper because it submitted matters of law to the jury, namely an insured’s status and an insured’s right to subrogation. Jury Instruction 17 read as follows:

You are instructed that an insurer has no right of subrogation against its own insured. If you find by a preponderance of the evidence that BJ Enterprises is an insured under the subject policy, then Charter Oak Fire Insurance Company has no right of subrogation in this cause and your verdict shall be for the Defendant!,] BJ Enterprises of Mississippi, LLC.

¶ 42. Subrogation has been defined as the “substitution of one person in the place of another, whether as a creditor or as the possessor of any rightful claim, so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and to its rights, remedies, or securities.” Hutson v. State Farm Fire & Cas. Co., 954 So.2d 514, 517 (¶ 7) (Miss.Ct.App.2007) (quoting Ellis v. Powe, 645 So.2d 947, 951 (Miss.1994)). “The subrogee steps into the shoes of the subrogor with respect to the debt or claim.” Id. Subrogation “is a creature of equity, and is the mode which equity adopts to compel the ultimate payment of a debt by one who, in equity and good conscience, ought to pay it.” Id. (quoting Oxford Prod. Credit Ass’n v. Bank of Oxford, 196 Miss. 50, 67, 16 So.2d 884, 388 (1944)). The subrogee “steps into the shoes of the subrogor and obtains only those rights possessed by the subrogor and assigned to the subrogee.” Ellis v. Powe, 645 So.2d 947, 951 (Miss.1994). Finally, “whether an insurer may subrogate to the claim one insured has against a coinsured is a question of law.” Hutson, 954 So.2d at 516 (¶ 5).

¶43. Although whether an insurer’s right to subrogate is a question of law, here, the jury was presented with a mixed question of law and fact. In Thomas v. Jones, 28 So.3d 575, 579 (¶ 15) (Miss.Ct. App.2009), we held that a genuine issue of material fact existed as to whether a party was an insured at the time of injury, thus precluding summary judgment. Therefore, the status of an insured can be a question of fact for the jury to determine. Here, the trial court correctly instructed the jury that an insurer has no right to subrogation against its own insured. The jury was then charged with determining the factual issue of whether BJ was an insured under the policy. Accordingly, I find no error in Jury Instruction 17.

B. Jury Instruction 20

¶44. Jury Instruction 20 read: “The Court instructs the jury that if you find by a preponderance of the evidence that MCH waived Charter Oaks’ rights to sue the Defendant to recover money it paid under the policy, then your verdict must be for the Defendant.” Charter Oak argues that this instruction was improper because “the issue of Charter Oak’s right to subrogation is a question of law.” I disagree with Charter Oak’s reading of this instruction and find that the instruction properly pertained to waiver.

¶ 45. Although the question of whether an insurer may subrogate to the claim that one insured has against a coinsured is a question of law, waiver is a question of fact for the jury. Armstrong v. Miss. Farm Bureau Cas. Ins. Co., 66 So.3d 188, 192 (¶ 25) (Miss.Ct.App.2011). An insurer can waive its right to subrogation. Id. at (¶ 22). Waiver of subrogation is “the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right.” Id. (quoting Bellemere v. Geico Gen. Ins. Co., 977 So.2d 363, 369 (¶ 12) (Miss.Ct.App.2007)). “Since the right of subrogation arises for the benefit of the insurer, it may waive its right to subrogation, either by contract or by conduct inconsistent with the right of subro-gation, and the waiver may be either express or implied.” Id. A “party claiming the waiver of an important policy provision must prove it by clear and convincing evidence.” Id. at 192 (¶ 22) (citing N.H. Ins. Co. v. Smith, 357 So.2d 119, 121 (Miss.1978)). Finally, we have held that a defendant is entitled to have jury instructions given which present his theory of the case. Burr v. Miss. Baptist Med. Ctr., 909 So.2d 721, 726 (¶ 12) (Miss.2005) (quoting Nunnally v. R.J. Reynolds Tobacco Co., 869 So.2d 373, 378 (¶ 7) (Miss.2004)).

¶ 46. During trial, B J raised waiver as a defense, pointing to the policy provision of the insurance policy titled “Transfer of Rights of Recovery Against Others to Us.” Relying on this provision, Harrell and Williams executed a “Statement and Declaration of Waiver of Rights” to waive subrogation against their tenants and related companies. I find that BJ presented ample evidence justifying an instruction as to waiver. Although Charter Oak attempts to characterize the issue as one pertaining to a matter of law, waiver is an issue of fact. Thus, I find that the trial court did not err in giving Jury Instruction 20.

¶ 47. Charter Oak next argues that it should be entitled to pursue subrogation against BJ. The jury returned a general verdict in favor of B J. Because I find that the jury was properly instructed, and BJ presented sufficient evidence of waiver to support the jury’s verdict, I find this issue to be without merit.

¶ 48. I find no error in the trial court’s instructions to the jury and therefore do not find it necessary to address Charter Oak’s remaining assignment of error. I would affirm the trial court’s judgment. Accordingly, I respectfully dissent.

FAIR, J., JOINS THIS OPINION.

      . For the policy provision and the declaration, see paragraphs 19 and 12 of the majority opinion.


author: BOLIN, Justice. MURDOCK, Justice

text:
    Ex parte David LABBE, mayor of the City of Valley Grande, and City of Valley Grande. (In re Marcus Kelley et al. v. W. Alan Dailey, County Coroner of Dallas County, et al.).
    1130010.
    Supreme Court of Alabama.
    June 6, 2014.
    Rick A. Howard and April W. McKay of Holtsford, Gilliland, Higgins, Hitson & Howard, P.C., Montgomery, for petitioners.
    Fernando A. Morgan of The Morgan Law Firm, Montgomery, for respondent Jeffery Barlow; and Cleophus Gaines, Jr., of The Gaines Law Firm, LLC, Montgomery, for respondents Marcus Kelley and Yolanda Kelley.
   BOLIN, Justice.

The City of Valley Grande (“the City”) and its mayor, David Labbe, who was sued in his official capacity (hereinafter collectively referred to as “the petitioners”), petition this Court for a writ of mandamus directing the Dallas Circuit Court to vacate its order denying the petitioners’ motion for a summary judgment and to enter a summary judgment for the petitioners on the claims asserted against them by Marcus Kelley, Yolanda Kelley, and Jeffery Barlow, Jr. (hereinafter collectively referred to as “the plaintiffs”). We grant the petition and issue the writ.

Facts and Procedural History

The Valley Grande Volunteer Fire Department (“the fire department”) was incorporated on August 22, 1983, specifically for “charitable purposes within the meaning of Section 501(c)(8) of the Internal Revenue Code of 1954.” The petitioners state that the City was incorporated sometime after the fire department was created. On August 4, 2008, the City entered into an agreement with the fire department pursuant to which the fire department agreed to provide fire-protection service to the City “without remuneration.” However, the petitioners did acknowledge in the fire-service agreement that the City “ha[d] in the past and likely [would] continue to provide [the fire department] with some level of annual funding.” The evidence presented in support of the petitioners’ summary-judgment motion indicates that the City made annual donations of $15,000 to the fire department in the years 2010-2012. Mayor Labbe testified in his affidavit that the City does not maintain a fire department and that it does not employ, train, or supervise firefighters. May- or Labbe testified that the City and the fire department are separate entities and that the City does not maintain or reserve any right of control over the fire department.

On January 25, 2011, James Barlow, Sr., and his mother, Bertha Yeager, were killed in a house fire. W. Alan Dailey, the coroner for Dallas County, pronounced Barlow and Yeager dead at the scene and directed members of the fire department to remove the remains of the deceased from the house. The plaintiffs allege that the fire department represented that it had recovered all the decedents’ remains. The plaintiffs state that in April 2011 the family discovered a body bag at the scene of the fire that contained additional remains of Barlow.

On January 4, 2013, the plaintiffs sued the petitioners, among others, asserting claims of negligence; wantonness; intentional infliction of emotional distress; fraud; suppression; and negligent and/or wanton hiring, training, and supervision of the individual firefighters against both the City and the mayor. On February 12, 2013, the petitioners answered the complaint, asserting certain affirmative defenses, including immunity.

On February 25, 2013, the petitioners moved the trial court for a summary judgment, arguing, among other things, that the petitioners did not employ, supervise, or train any firefighters; that petitioners did not reserve any right of control over the fire department; that the petitioners were entitled to immunity pursuant to the Volunteer Service Act, § 6-5-336, Ala. Code 1975; that the City was immune from suit for intentional torts of its agents, officers, or employees pursuant to § 11-47-190, Ala.Code 1975; and that the petitioners could not be liable for negligent and/or wanton hiring, training, or supervision of the individual firefighters because, they said, no master-servant relationship existed between the City and the fire department.

On June 11, 2013, the plaintiffs filed their response in opposition to the motion for a summary judgment, arguing that the fire department is de facto the fire department for the City pursuant to a contract entered into between the City and the fire department in which the fire department agreed to provide fire-protection service to the City in exchange for annual funding provided by the City. The plaintiffs further argued that a master-servant relationship existed between the City and the fire department such that the City could be held liable for the actions of the fire department.

On August 28, 2013, the trial court entered an order denying the petitioners’ summary-judgment motion. This petition followed. Because of the procedural posture of this case, we address only those issues grounded on a claim of immunity; we do not address, and the petitioners did not argue, the claim alleging negligent hiring, training, or supervision of the individual firefighters.

Standard of Review

This Court has stated the following regarding the exception to the general rule that the denial of a motion for a summary judgment is not reviewable by a petition for a writ of mandamus and the appropriate standard of review on a petition for a writ of mandamus:

“‘While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus.’ Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000). A writ of mandamus is an extraordinary remedy available only when there is: ‘(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.’ Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001).”

Ex parte Nall, 879 So.2d 541, 543 (Ala.2003). However,

“whether review of the denial of a summary-judgment motion is by a petition for a writ of mandamus or by permissive appeal, the appellate court’s standard of review remains the same. If there is a genuine issue as to any material fact on the question whether the movant is entitled to immunity, then the moving party is not entitled to a summary judgment. Rule 56, Ala. R. Civ. P. In determining whether there is a material fact on the question whether the movant is entitled to immunity, courts, both trial and appellate, must view the record in the light most favorable to the nonmoving party, accord the nonmoving party all reasonable favorable inferences from the evidence, and resolve all reasonable doubts against the moving party, considering only the evidence before the trial court at the time it denied the motion for a summary judgment. Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000).”

Ex parte Wood, 852 So.2d 705, 708 (Ala.2002).

Discussion

The petitioners argue that the Volunteer Service Act immunizes the individual firefighters from liability in this case. The petitioners further argue, in reliance on Hollis v. City of Brighton, 885 So.2d 135 (Ala.2004), that, because the individual firefighters are immune from civil liability, they are protected from the vicarious liability for the firefighters’ tortious acts. The plaintiffs contend that the petitioners are liable for the actions of the fire department because of a contractual relationship, as well as a master-servant relationship that they say exists between the petitioners and the individual firefighters.

Section 6-5-336, Ala.Code 1975, provides:

“(a) This section shall be known as ‘The Volunteer Service Act.’
“(c) For the purposes of this section, the meaning of the terms specified shall be as follows:
“(1) Governmental entity. Any ... municipality ...;
“(2) Nonprofit corporation. Any corporation which is exempt from taxation pursuant to Section 501(a) of the Internal Revenue Code, 26 U.S.C. Section 501(a);
“(3) Nonprofit organization. Any organization which is exempt from taxation pursuant to Section 501(c) of the Internal Revenue Code, 26 U.S.C. Section 501(c), as amended;
“(4) Volunteer. A person performing services for a nonprofit organization, a nonprofit corporation, a hospital, or a governmental entity without compensation, other than reimbursement for actual expenses incurred. The term includes a volunteer serving as a director, officer, trustee, or direct service volunteer.
“(d) Any volunteer shall be immune from civil liability in any action on the basis of any act or omission of a volunteer resulting in damage or injury if:
“(1) The volunteer was acting in good faith and within the scope of such volunteer’s official functions and duties for a nonprofit organization, a nonprofit corporation, hospital, or a governmental entity; and
“(2) The damage or injury was not caused by willful or wanton misconduct by such volunteer.
“(e) In any suit against a nonprofit organization, nonprofit corporation, or a hospital for civil damages based upon the negligent act or omission of a volunteer, proof of such act or omission shall be sufficient to establish the responsibility of the organization therefor under the doctrine of ‘respondeat superior,’ notwithstanding the immunity granted to the volunteer with respect to any act or omission included under subsection (d).”

This Court has specifically addressed the Volunteer Service Act in the context of fire-protection services provided by a volunteer fire department and the liability of a municipality for the alleged negligent and wanton acts of the firefighters. In Hollis, supra, the plaintiffs sued the City of Brighton alleging that the volunteer fire department had negligently failed to extinguish a fire that destroyed their house. The plaintiffs alleged that the City of Brighton had undertaken a duty to provide skillful fire-protection services by creating a volunteer fire department and then had breached that duty through the negligent acts of the firefighters. The plaintiffs also alleged that the City of Brighton was vicariously liable for the negligent or wanton acts of the individual firefighters in failing to extinguish the fire that destroyed their house.

The City of Brighton argued in support of its motion for a summary judgment that it was entitled to substantive immunity from the plaintiffs’ claims for direct liability and vicarious liability for the acts or omissions of the fire department and its firefighters. The city also argued that the Volunteer Service Act immunized the volunteer firefighters from individual liability and thereby protected the city from vicarious liability for the firefighters’ torts. The plaintiffs argued in response to the motion for a summary judgment that the City of Brighton was.not entitled to substantive immunity on their claims of direct and vicarious liability of the city for the tor-tious acts of the fire department and its firefighters. The plaintiffs also argued that the Volunteer Service Act was not applicable because, they said, the firefighters were not “volunteers” within the meaning of the Volunteer Service Act. The plaintiffs contended that the firefighters were not volunteers because the city paid the firefighters a stipend of $10 per fire for expenses. The trial court entered a summary judgment in favor of the City of Brighton.

On appeal, this Court concluded that the firefighters were “volunteers” within the meaning of the Volunteer Service Act and that, “in creating a volunteer fire department, a city does not thereby undertake a legally enforceable duty to provide skillful fire protection.” Hollis, 885 So.2d at 141. This Court reasoned that “because, in creating a volunteer fire department, a city is relegated to the vagaries of volunteer manpower, the undertaking by the city is too indistinct to support a legally enforceable duty to provide skillful fire protection.” Hollis, 885 So.2d at 141. Thus, this Court affirmed the summary judgment as to the direct-liability claim against the city because “the [c]ity did not owe a duty to provide skillful fire protection.” Id.

As to the claim seeking to hold the City of Brighton vicariously liable for the acts or omissions of the firefighters, this Court stated:

“The vicarious liability of a putative master under the rule of respondeat superior depends upon the liability of the putative servant. See Larry Terry Contractors, Inc. v. Bogle, 404 So.2d 613, 614 (Ala.1981) (‘“[W]hen [a] principal and his agent are sued in [a] joint action in tort for misfeasance or malfeasance of the servant, and his liability for the conduct of said servant is under the rule of respondeat superior, a verdict in favor of the servant entitles the master to have the verdict against him set aside.” ’) (quoting Louisville & N.R.R. v. Maddox, 236 Ala. 594, 600, 183 So. 849, 853 (1938)), and Gore v. City of Hoover, 559 So.2d 163, 165 (Ala.1990), overruled on other grounds, Franklin v. City of Huntsville, 670 So.2d 848 (Ala.1995) (holding that a city could not be held vicariously liable for the act of a magistrate who was immune from liability). Thus, if a putative servant is not liable, either because he is innocent or because he is immune, no liability exists to be visited upon the putative master under the rule of respondeat superior. Id.
“As discussed above, the firefighters, the putative servants in the case now before us, were volunteers who did not receive compensation for their service as volunteer firefighters. Consequently, they were immune from liability for negligence under the Volunteer Service Act. Because the firefighters were immune from liability for negligence under the Volunteer Service Act, no liability for negligence could befall them to be visited upon the City [of Brighton], the putative master in the case now before us. While the plaintiffs allege not only negligence but also wantonness by the firefighters, and while § 6-5-336 excepts wanton volunteers from the immunity, a city cannot be liable for wanton conduct. Town of Loxley v. Coleman, 720 So.2d 907, 909 (Ala.1998), and Hilliard v. City of Huntsville, 585 So.2d 889, 892 (Ala.1991).”

Hollis, 885 So.2d at 141-42. Thus, this Court affirmed the summary judgment on the plaintiffs’ claim against the City of Brighton alleging vicarious liability based on the acts or omissions of the volunteer firefighters. Hollis, supra.

Here the plaintiffs seek to circumvent the immunity afforded by the Volunteer Service Act by arguing that the fire department was not a volunteer department within the meaning of the Volunteer Service Act but, rather, that it was a professional fire department operating under the control of the City. The plaintiffs base their contention that the fire department is a professional fee department on the contractual relationship that exists between the City and the fee department and the annual donations made by the City to the fee department.

Initially we note that Mayor Labbe testified in his affidavit that the City does not maintain a fire department and that it does not employ, train, or supervise firefighters. Mayor Labbe further testified that the City and the fire department are separate entities and that the City does not maintain or reserve any right of control over the fire department. The plaintiffs failed to present any evidence to the contrary in their response in opposition to the motion for summary judgment.

The agreement entered into by the City and the fee department specifically provided that the fee department would provide the City fire-protection services “without remuneration.” Nothing in the agreement granted the City any authority to control, train, or supervise the firefighters or the fire department. Although the agreement specifically provided that the individual firefighters would not be paid salaries, it did provide that the City would provide the fire department with some level of funding. In fact, the City donated to the fire department $15,000 for the years 2010-2012. Section 11-43-140, Ala.Code 1975, specifically provides that “[cjities and towns may maintain and operate a volunteer ... fee department and may do any and all things necessary to secure efficient service.” (Emphasis added.) Municipalities may enter into contracts in furtherance of a governmental purpose. § 11-40-1, Ala.Code 1975. Further, § 9-3-18(a), Ala.Code 1975, provides that it is the intent of the legislature to provide assistance to organized volunteer fire departments, which are deemed to be “public in nature, as they protect the health, safety, and welfare of the public.” Therefore, “any municipality ... may donate money, property, equipment, or other thing of value to [organized volunteer fire departments].” § 9-3-18(b), Ala.Code 1975. Based on the foregoing statutory provisions, the attorney general has opined that a municipality may, and in fact should, contract with a volunteer fee department to provide fee services to its citizens in exchange for funds and equipment. See Op. Att’y Gen. No. 2005-046 (January 19, 2005); Op. Att’y Gen. No. 92-00260 (April 24, 1992); and Op. Att’y Gen. No. 84-00279 (May 15, 1984).

We conclude that the agreement between the City and the fire department, as well as the donations made to the fee department by the City, does not alter the fee department’s status as a “volunteer” fire department. Nothing in the agreement between the City and the fire department or in the donations made by the City to the fire department can be construed as converting the volunteer fire department to a professional fire department. The foregoing statutory provisions allow municipalities, including the City, to enter into contracts and to make monetary donations to volunteer fire departments in exchange for fire-protection services without altering the volunteer status of the fire department.

Having determined that the fire department is a “volunteer” fire department, we must conclude that its firefighters are thus immune from liability for their negligent acts under the Volunteer Service Act. Because the firefighters are immune from liability for their negligent acts, the City is likewise immune from liability for the negligent acts of the firefighters. Hollis, supra. Further, because the City cannot be held liable for wanton or intentional conduct, it is likewise immune from suit for those claims asserted by the plaintiffs alleging wanton and/or intentional conduct by the City. § 11-47-190, Ala.Code 1975; Hollis, supra; and Walker v. City of Huntsville, 62 So.3d 474 (Ala.2010). Finally, the claims asserted against Mayor Labbe in his official capacity are simply claims asserted against the City. Dickinson v. City of Huntsville, 822 So.2d 411 (Ala.2001). Accordingly, Mayor Labbe enjoys the same protections from suit in this case as does the City.

Conclusion

The petitioners have established a clear legal right to the relief sought. Accordingly, we grant the petition for a writ of mandamus in this case and direct the trial court to enter a summary judgment for the petitioners.

PETITION GRANTED; WRIT ISSUED.

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

MURDOCK, J., concurs specially.

MOORE, C.J., dissents.

MURDOCK, Justice

(concurring specially).

Although § 6-5-336, Ala.Code 1975, the Volunteer Service Act, speaks in terms of “immunity” for the parties to whom it is directed, in Hollis v. City of Brighton, 885 So.2d 135, 141 (Ala.2004), this Court held that a municipality, by relying upon the services of a volunteer fire department, does not “undertake a legally enforceable duty to provide skillful fire protection.” With this in mind, and given the main opinion’s reliance upon Hollis, I concur.

      . The complaint asserts that the plaintiffs were the "caregivers” to and next of kin of the decedents.