text:
    Carolyn Blanche SHIPP, Appellant, v. THOMAS AND BETTS and Ace American Insurance Company, Appellees.
    No. 2008-WC-00463-COA.
    Court of Appeals of Mississippi.
    Jan. 27, 2009.
    Rehearing Denied May 26, 2009.
    Certiorari Denied July 30, 2009.

      David L. Walker, for Appellant.
    Mary Launa Brubaker, for Appellees.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J., for the Court.

¶ 1. Carolyn Shipp appeals from the Marshall County Circuit Court’s order affirming the Mississippi Workers’ Compensation Commission’s (Commission) decision that: (1) Shipp’s claim for disability benefits was barred by the two-year statute of limitations, and (2) Shipp failed to prove that her carpal tunnel syndrome was caused or aggravated by her employment with Thomas and Betts. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Shipp was employed with Thomas and Betts in Byhalia, Mississippi as a warehouse worker from 1989 until 2004. Shipp was diagnosed with carpal tunnel syndrome on March 17, 2003. Shipp did not miss any days of work because of her injury. On July 28, 2004, Shipp was fired for not keeping up with production and for being late. On May 2, 2005, more than two years after her diagnosis for carpal tunnel syndrome, Shipp filed a petition to controvert with the Commission, or a Commission Form B5-11, alleging that, on July 28, 2004, she suffered from carpal tunnel syndrome, a compensable injury while employed by Thomas and Betts.

¶ 3. A hearing was conducted on Shipp’s workers’ compensation claim on October 4, 2006. The administrative law judge entered an order on January 10, 2007, finding that Shipp was late in filing her claim and that the two-year statute of limitations precluded Shipp’s claim. Additionally, the administrative law judge found that Shipp had failed to prove that her carpal tunnel syndrome was caused or aggravated by her employment with Thomas and Betts.

¶ 4. Shipp filed a petition for review of the administrative law judge’s order with the Commission on January 16, 2007. The Commission affirmed the administrative law judge’s order on June 12, 2007. Shipp then filed an amended notice of appeal to the Marshall County Circuit Court on June 18, 2007. On March 3, 2008, the circuit court affirmed the Commission’s decision, finding that it was supported by substantial evidence.

¶ 5. Shipp now timely appeals the circuit court’s judgment affirming the Commission’s decision and raises the following issues:

I. Whether the circuit court erred in affirming the Commission’s decision finding that the two-year statute of limitations had expired before Shipp filed her petition to controvert; and
II. Whether the circuit court erred in affirming the Commission’s decision finding that Shipp failed to meet her burden of proof in proving that her carpal tunnel syndrome was caused or aggravated by her employment with Thomas and Betts.

Finding no error, we affirm.

DISCUSSION

I. Statute of Limitations

¶ 6. We will only overturn a decision of the Commission “for an error of law ... or an unsupportable finding of fact.” Georgia Pacific Corp. v. Taplin, 586 So.2d 823, 826 (Miss.1991) (citations omitted). The Court uses a de novo standard of review when reviewing statute of limitations issues. Stephens v. Equitable Life Assur. Soc’y of the United States, 850 So.2d 78, 82(10) (Miss.2003) (citation omitted).

¶ 7. Under Mississippi Code Annotated section 71-3-35(1) (Rev.2000), if a worker’s compensation claim has not been filed within two years after the injury, the claim is time-barred unless there has been a payment of compensation (other than medical treatment or burial). See Jordan v. Pace Head Start, 852 So.2d 28, 30(5) (Miss.Ct.App.2002) (stating that if a worker does not receive disability income benefits or nonburial death benefits and does not file a claim for workers’ compensation benefits within two years of the injury, then the claim is time-barred under the statute of limitations). In this case, Shipp was diagnosed with carpal tunnel syndrome in March 2003 and did not file a petition to controvert until more than two years later in May 2005.

¶ 8. Carpal tunnel syndrome is a latent [or progressive] infirmity and is not immediately recognizable. See Lucas v. Angelica Uniform Group, 733 So.2d 285, 288(11) (Miss.Ct.App.1998). “A progressive injury occurs when the claimant [is] aware that he acquired an injury that [is] work related.” Baker v. IGA Super Valu Food Store, 990 So.2d 254, 260(19) (Miss.Ct.App. 2008). When latent [or progressive] injuries are involved, the time for filing a compensation claim under the two-year statute of limitations runs from the time a compensable injury becomes reasonably apparent. Tabor Motor Co. v. Garrard, 233 So.2d 811, 814 (Miss.1970). Generally, as to when the injury becomes reasonably apparent is an issue of fact for the Commission to determine. Id. We are bound by the Commission’s findings of fact when the Commission’s decision is based upon substantial evidence. Jordan, 852 So.2d at 30(4).

¶ 9. For example, in Struthers Wells-Gulfport, Inc. v. Bradford, 304 So.2d 645, 649 (Miss.1974), the supreme court found that the claimant was not time-barred under the two-year statute of limitations when she “had no compensable injury resulting from [a] spider bite until it became reasonably apparent that she had a disability arising therefrom.” In Bradford, the claimant was bitten by a brown recluse spider on December 2, 1968. Id. at 646. The claimant’s ankle became swollen ten days later, and she was treated for an infection from the poisonous bite on her ankle. Id. However, it was not until February 1972 that the claimant was diagnosed with a vasculitis infection in the blood vessel which had resulted from the 1968 spider bite. Id. at 647.

¶ 10. The supreme court surmised that “the fact that [the claimant] had an accident was apparent, but the injury resulting from the accident was latent.” Id. at 649. Therefore, the court found that the time for the running of the two-year statute of limitations did not begin to run until the claimant, “as a reasonable [person], should have recognized the nature, seriousness and probable compensable character of the injury.” Id. at 648 (emphasis added); see also Boykin v. Sanderson Farms, Inc., 910 So.2d 52, 55-56 (14-15) (Miss.Ct.App.2005) (finding that the claimant’s developing hearing loss was improperly characterized as a latent injury when the claimant knew as early as 1993 that his work environment was causing his hearing loss).

¶ 11. Shipp cites Bolivar County Gravel Co. v. Dial, 634 So.2d 99, 104 (Miss. 1994) for the proposition that her claim is not time-barred. Shipp states: “There was no occupational disability which would have caused [her] to file for compensation until she was terminated by [her] employer ... on July 28, 2004.” However, because we find that Shipp’s case falls under the reasoning of Bradford and Boykin, we disagree.

¶ 12. In Dial the claimant was found to have chronic lung disease before being exposed to welding fumes, but he was awarded disability benefits because of the nature of the injury and the difficulty of locating a definite and certain point of injury. Dial, 634 So.2d at 104. The supreme court explained: “Although the employer correctly notes that the Claimant was affected and treated for exposure to welding smoke long before 1987[,] there was no occupational disability which would have caused him to file for compensation.” Id. at 104. As a result, the supreme court held that the claimant’s case in Dial was not time-barred under the two-year statute of limitations because the claimant filed his claim within two years of becoming disabled— which the court found to be the date the claimant quit his job because he could no longer perform his duties. Id. at 106.

¶ 13. Dial is clearly distinguishable from Bradford and Boykin, as well as the case at bar. As in Bradford and Boykin, Shipp’s injury and the date of disability can be easily ascertained. The administrative law judge aptly explained:

[Shipp] ... knew her apparent injuries of bilateral carpal tunnel syndrome existed on or before ... March 2003, and she knew or should have known her apparent condition of bilateral carpal tunnel syndrome may have been work related in March ... 2003, and she reasonably should have known in March 2003 that her injuries were disabling and therefore potentially created a compen-sable injury under the Mississippi Workers’ Compensation Laws.

¶ 14. Shipp testified that she first had pain in her right shoulder in 1999 for which she sought medical treatment. In 2002, Shipp was treated by Dr. William Knight, an orthopedic surgeon, for pain in her right elbow. Shipp was treated again by Dr. Knight on March 17, 2003, for bilateral hand pain and left shoulder lines. On March 17, 2003, Dr. Knight diagnosed Shipp with carpal tunnel syndrome.

¶ 15. Shipp returned to Dr. Knight on March 20, 2003, for pain because the cortisone shots she had been given had not sufficiently reduced her pain. Shipp then underwent nerve testing which indicated that she had severe carpal tunnel syndrome on the right side and moderate on the left side. After testing, Dr. Knight recommended that Shipp consider surgery. However, Shipp did not pursue surgery. In fact, Shipp did not return to Dr. Knight for treatment until September 4, 2003, and then again on February 19, 2004.

¶ 16. In his deposition testimony, Dr. Knight testified that he could not state with any certainty that Shipp’s injury was work related. As a result, Dr. Knight wrote in his report, concerning Shipp’s March 2003 appointments, that Shipp could return to “regular” duty at work. However, Shipp testified that directly after her March 20, 2003, appointment with Dr. Knight, she took Dr. Knight’s report regarding her condition to her work supervisor, Barbara Wicks. Shipp stated that Wicks tried to help her by giving her tasks that would be less likely to aggravate her condition. Shipp testified as follows:

So, whatever visits ... I would make to see Dr. Knight, [Wicks] would ... always tell me, she said, well, I can see that you have a problem. And someone else in the department had had surgery for it, for the carpal tunnel, so she was, you know, trying to help me out a little bit. I wouldn’t have to go out and, you know, be under the production code at, at the time.

We find that the facts contained in the record support the chancellor’s finding that Shipp’s injury was reasonably apparent in March 2003 when Shipp was diagnosed with carpal tunnel syndrome.

¶ 17. Additionally, Dr. Joseph Boals, an expert witness for Shipp, testified that he had examined Shipp on November 8, 2005. Dr. Boals testified that Shipp “had developed symptoms of pain and numbness associated with her job which was repetitive” and that “[s]he reported this in the year 2003 and was seen by Dr. Knight.” Dr. Boals testified that when Dr. Knight suggested that Shipp have surgery for her condition, “she told Dr. Knight that, for personal reasons, she was unable to do that.” Shipp was then terminated from her job in July 2004.

¶ 18. On May 2, 2005, Shipp filed a petition to controvert with the Commission, or a Commission Form B5-11, alleging that she suffered carpal tunnel syndrome, a compensable injury, on July 28, 2004, while employed by Thomas and Betts. Shipp also testified that she notified Thomas and Betts of her condition, that no benefits were paid to her, and that no time off work was taken because of her injury. See Jordan, 852 So.2d at 30(5) (finding similar circumstances precluded claim as being time-barred under section 71-3-35).

¶ 19. Based upon the evidence offered at the hearing, the administrative law judge concluded that Shipp’s workers’ compensation claim for bilateral carpal tunnel syndrome commenced running on or before March 2003. As a result, the administrative law judge found that Shipp’s claim was time-barred under the statute of limitations because Shipp did not receive any disability income for her injury and because Shipp failed to file her claim -within two years of her injury. See id.

¶ 20. The Commission affirmed the administrative law judge’s judgment for Thomas and Betts. “The [Cjommission is in the same position as a jury, which might have brought in a verdict for either the plaintiff or the defendant, and where the jury has enough evidence to justify its findings the court affirms the case.” Lucas, 733 So.2d at 291(29). Because we find the Commission’s findings were based on substantial evidence, we affirm. See Jordan, 852 So.2d at 30(4).

II. Burden of Proof

¶ 21. Under workers’ compensation law, the claimant has the burden of proof in showing the causal connection between the claimant’s employment and the resulting disabling condition. Hedge v. Leggett & Platt, 641 So.2d 9, 12-13 (Miss. 1994). The claimant must prove by a preponderance of the evidence each element of her case. Tex. Gas Transmission Corp. v. Dabney, 919 So.2d 1079, 1085(21) (Miss. Ct.App.2005).

¶ 22. “In all but the simple and routine cases ... it is necessary to establish medical causation by expert testimony.” Cole v. Superior Coach Corp., 234 Miss. 287, 291, 106 So.2d 71, 72 (1958). A “claim of disability must be supported by medical findings.” Howard Indus. v. Robinson, 846 So.2d 245, 252(17) (Miss.Ct.App. 2002) (citing Miss.Code Ann. § 71-3-3(1) (Supp.2001)). “[M]edieal evidence must prove not only the existence of a disability but also its causal connection to employment.” Id. at 259 (citation omitted).

¶ 23. Dr. Knight testified that he and Shipp did not discuss the cause of her carpal tunnel syndrome. Dr. Knight also testified that he believed there was a less than fifty percent chance that Shipp’s job either caused or aggravated her carpal tunnel syndrome. When Dr. Knight was asked in his deposition regarding possible causes of carpal tunnel, in general, he stated:

Carpal tunnel is caused by lots of different things, and it’s not specifically consistent with anything, and it’s consistent with everything.... It’s not associated with repetitive activity ... and so the only thing you really can assign an etiology to carpal tunnel would be associated with a displaced fracture of the wrist.... That’s really the only time that you can, with a clear conscience, say, that carpal tunnel is from the fracture .... [T]here are lots of people who do repetitive work and never get [carpal tunnel syndrome], they don’t all get [it] ... so it’s — I think it’s difficult to absolutely assign a causation in these situations where it’s not clear cut.

¶ 24. Shipp’s independent medical examiner, Dr. Boals, testified as follows regarding Shipp’s medical history:

[Shipp’s injury was an] over-time type of problem developed due to the repetitive use of her arms. And she would have to be able to justify that, explain it, and make sense of it. If she is using air guns or drills or screwdrivers all day long or typing, or like a court reporter, certainly those kinds of activities have been associated with carpal tunnel syndrome.

¶ 25. The administrative law judge found that “[t]he record remains void of any proof of repetitive work of the nature and extent as that mentioned by Dr. Boals.” The administrative law judge explained:

The distinction between job descriptions, and their alleged extent of repetitive severity, is fatal to an apparent attempt by Claimant, and Dr. Boals, to link or establish causation. The descriptions of her various job titles, and duties, given in her deposition do not mention any tasks of a repetitive nature type similar to those given as examples by Dr. Boals.

¶ 26. When asked if he had an opinion within a reasonable degree of medical certainty, as to what caused Shipp’s carpal tunnel syndrome, Dr. Boals testified as follows:

It is hard for me to know. She said her job caused her to have the numbness. Now, causation many times is an issue that I don’t decide. I can assign an impairment [rating] and suggest treatment or care based on assuming some facts, which I have done here. I am assuming she is going to be able to document the work [that] caused this. If she can, then what I said holds. If she can’t, then, of course, this is not work related.

¶ 27. The administrative law judge found that Dr. Boal’s assumption that Shipp was able to document the work that caused her injury “[was] not well founded, as the record remains void of any expert testimony that the injury of which ... Shipp complains is work related, or even that her work duties and/or required tasks were in fact repetitive in nature to the extent that Dr. Boals testified might cause carpal tunnel.”

¶ 28. The administrative law judge concluded that the record was “completely lacking of expert opinion testimony connecting ... Shipp’s medical condition to an occurrence or series of occurrences at work.” Therefore, the administrative law judge found that “Shipp [had] failed to meet her burden of proof showing the necessary medical causation between her work and her injury by a preponderance of the evidence.” Upon review of the administrative law judge’s opinion, the Commission also found that Shipp had failed to prove that her injuries were caused or aggravated by her employment with Thomas and Betts. Because we find that the Commission’s decision was supported by substantial evidence, we find no error and affirm. See Taplin, 586 So.2d at 826.

CONCLUSION

¶ 29. The Commission found that Shipp had failed to file a workers’ compensation claim within two years of becoming disabled, which precluded her claim under the two-year statute of limitations. See Miss. Code Ann. § 71-3-35. Additionally, the Commission found that Shipp had failed to prove that her carpal tunnel syndrome was caused or aggravated by her employment with Thomas and Betts. See Hedge, 641 So.2d at 12-13. We are bound by the Commission’s findings of fact in this case because the Commission’s decision was based upon substantial evidence. See Jordan, 852 So.2d at 30(4). Therefore, we find no error and affirm.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Elliott Allen YOUNG a/k/a Duke, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-02026-COA.
    Court of Appeals of Mississippi.
    March 10, 2009.
    Rehearing Denied July 28, 2009.

      Leslie S. Lee, Jackson, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   CARLTON, J.,

for the Court.

¶ 1. Elliot Allen Young was convicted by a Walthall County jury of two counts of unlawful sale of cocaine to an undercover informant. The circuit court sentenced him as a habitual offender to life in the custody of the Mississippi Department of Corrections without eligibility for parole or probation along with a fine of $5,000 for each count, $300 in restitution to the Mississippi Crime Laboratory, and $300 in restitution to the Southwest Mississippi Inter-Jurisdictional Narcotics Enforcement Unit (SMINEU). He now appeals his conviction and resulting sentence, alleging the following errors: (1) the circuit court erred in finding that Young’s prior conviction for possession of cocaine was more probative than prejudicial, and (2) the verdict was against the overwhelming weight of the evidence. Finding no error, this Court affirms his conviction and sentence.

FACTS

¶2. Agent Dan Hawn of the Walthall County Sheriffs Department employed Dexter Cook to go into a known drug area of Walthall County and attempt to buy drugs. On both May 16, 2006, and May 24, 2006, Agent Hawn and another officer met Cook at a pre-buy location where Cook was searched and equipped with audio and video recording equipment. He was given money with documented serial numbers with which to buy the drugs.

¶ 3. On May 16, Agent Hawn dropped Cook off at Martin Luther King Road with instructions to travel to the area of Magee Badon Road and attempt to purchase drugs. The officers did not specify from whom Cook was supposed to buy the drugs. The officers could hear him through his audio transmitter attempting to make drug buys from several different people. Then, officers heard a drug transaction taking place with an unidentified person who was later determined to be Young. When Cook returned, he turned over the drugs that were placed in evidence bags and given to the Mississippi Crime Laboratory. The agents reviewed the audio and videotape evidence from the buy and identified Young as the individual who sold the drugs to Cook. The videotape shows Cook and Young together in a trailer. Young is heard telling Cook to let him go get his “dope and stuff.” Young is then shown coming back into the part of the trailer where the transaction is made. The videotape does not show the exact object that is exchanged for the money.

¶ 4. On May 24, 2006, Cook was again used as a confidential informant by Agent Hawn. Cook was informed to go and attempt to buy crack cocaine. He was given the same video and audio equipment as well as more money with documented serial numbers with which to buy the drugs. Cook again traveled to Magee Badon Road where he made contact with Young. Young is heard saying, “I don’t think I’ve got that much.” Cook responds, ‘Well, can you do fifty?” Young then leaves the view of the camera, returns, and the videotape shows him holding something in his hand and saying something to the effect of “give me forty.” At that time, Cook returned to meet Agent Hawn. He returned all but forty dollars, which had been issued to him, along with crack cocaine. The drugs were placed in an evidence bag and transported to the crime lab.

¶ 5. Young was arrested on May 27, 2006. Officers recovered two ten dollar bills from Young that had previously been documented and given to Cook to buy drugs on May 16, 2006.

¶ 6. Young was tried by a jury in Walt-hall County. Prior to his case-in-chief, Young informed the trial judge that he was going to testify. Defense counsel indicated to the trial judge that Young had been informed that he would be subject to cross-examination by the State if he testified. At that time, the prosecution notified the trial judge that the State would seek to impeach Young with his prior convictions of robbery and unlawful possession of cocaine.

¶ 7. The trial judge held the robbery conviction to be inadmissible, but the judge allowed the prior possession charge to come in for impeachment purposes. After going through a Peterson analysis, the trial judge found that there was more probative value in admitting the evidence than prejudicial effect with regard to the prior conviction of cocaine possession in light of the posture of the case. The judge stated that the crime had impeachment value given the posture of the current case and defense counsel’s remarks during his opening statement. During his opening statement, defense counsel made the remark that “these charges are preposterous, and it’s a set-up situation and [Young] certainly did not sell cocaine to the confidential informant.” The defense’s theory during trial was that Young had never sold cocaine to the informant, Cook instead, he had only sold him twenty Viagra pills. Young also attempted to prove during trial that his arrest had been part of a conspiracy by the police to force Young to reveal information about an unrelated murder case.

¶ 8. After his jury trial, Young was convicted of two counts of unlawful sale of cocaine to an undercover informant. He was sentenced as a habitual offender to life imprisonment without the eligibility for parole or probation on both counts.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE PROBATIVE VALUE OF THE PRIOR CONVICTION FOR POSSESSION OF COCAINE OUTWEIGHED THE PREJUDICIAL EFFECT.

¶ 9. Mississippi Rule of Evidence 609(a)(1)(B) states that evidence that a party has been convicted of a crime shall be admitted if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the party. The standard of review for admission or exclusion of evidence is the abuse of discretion standard. Herring v. Poirrier, 797 So.2d 797, 804(¶ 18) (Miss. 2000). “Where such error is found, this Court ‘will not reverse unless the error adversely affects a substantial right of a party.’ ” Tate v. State, 912 So.2d 919, 924(¶ 9) (Miss.2005) (quoting Ladnier v. State, 878 So.2d 926, 933(¶ 27) (Miss.2004)).

¶ 10. Young contends that it was an abuse of discretion to admit the prior conviction of possession of cocaine because the probative value of the prior conviction was outweighed by its prejudicial effect. Young claims that the State’s purpose in bringing up the prior charge was to make the jury infer present guilt from his past conviction for a similar offense. In this case, the trial judge did not abuse his discretion in admitting into evidence Young’s prior conviction for possession of cocaine within 1,500 feet of the school, which he concluded was probative given the posture of the case after he conducted a Peterson analysis and a Rule 403 balancing test on the record. Peterson v. State, 518 So.2d 632, 638 (Miss.1987).

¶ 11. While the defense did not use the word “entrapment” and did not assert the affirmative defense of entrapment, the record indisputably reflects that both Young in his testimony and his counsel in opening statement claimed a “set-up” with “ridiculous charges.” The trial judge evaluated the relevance of this claim to the impeachment of Young in light of the posture of this case. Clearly, the intent of the defendant was put into issue by the defendant’s own testimony as well as by the defense’s theory of the case. A prologue of the theory was provided by his counsel’s opening statement.

¶ 12. Therefore, the prior conviction was admissible in accordance with Mississippi Rule of Evidence 404(b) with respect to intent as well as Mississippi Rule of Evidence 609 to impeach his claim of a setup and law enforcement conspiracy.

¶ 13. With respect to whether the trial judge abused his discretion and displayed due consideration, the trial judge evaluated the two prior convictions of Young' — a robbery conviction and the possession conviction noted above, — utilizing the Peterson analysis. The trial judge concluded that only the conviction relating to the drug possession was probative given the posture of the facts of this ease. Then, the jury, after listening to the evidence and weighing the evidence, found Young guilty of selling cocaine to Cook, a confidential informant, on May 16, 2006, and selling cocaine again to the same confidential informant eight days later on May 24, 2006.

¶ 14. The testimony the jury digested included Young’s own testimony. Young testified in his defense that he knew that Cook was with the police, meaning that he knew that Cook was a confidential informant. Young testified that since he knew Cook was with the police, he would only sell Viagra to him at $2 a pill.

¶ 15. Young further testified that he was targeted because he had a prior felony and because one of his friends had been killed. He explained that law enforcement had previously seen him with his friend. He alleged that the police targeted him because they wanted him to reveal who had killed his friend. He continued to explain that the law enforcement conspiracy was to pin a life sentence on him since he had been convicted of a felony before and to pressure him for his information about his murdered friend. However, he disclaimed any knowledge as to whom had killed his friend.

¶ 16. Young’s prior conviction was a part of his own defense theory as to why law enforcement targeted him. Young also admitted to selling “a substance” to the confidential informant Cook on these two occasions charged in the indictment. However, he testified that he sold Viagra to Cook, even though he is heard on the audiotape of one of the two sales saying “let me get my dope, I’ll be back.” Young accused the confidential informant and the undercover agents of being liars and accused them of tampering with the evidence. He claimed that the confidential informant bought the cocaine from someone else and switched the cocaine for the Viagra. He also asserted that the drugs tested by the lab were powder cocaine and not the rock cocaine that law enforcement claimed that he had sold. He also claimed that his image on the videotape introduced at trial had been altered, but he admitted that the image on the videotape was him. The jury considered the following evidence: the confidential informant’s testimony, the agent’s testimony, the pre-buy preparation and searches of the confidential informant, the chain of custody for exhibits of the evidence and the crime lab analysis, the audio and videotapes of the transactions, and the post-buy searches. In addition to being relevant to Young’s defense theory as to why law enforcement targeted him, the jury was also presented evidence of Young’s intent as to whether he intended to sell cocaine or Viagra.

¶ 17. Young, through his own testimony, put his intent into issue at trial. Carter v. State, 953 So.2d 224, 229(¶ 11) (Miss. 2007); Jones v. State, 904 So.2d 149, 153(¶ 10) (Miss.2005) (prior convictions admissible to show intent).

¶ 18. Young’s defense theory was in the vein of entrapment, while not a classic case of entrapment defense. As previously explained, the record reflects that Young definitely claimed there had been a “setup” and evidence tampering. Young admitted to the two sales, but he denied any intent to sell cocaine. He also admitted on direct examination to a prior criminal relationship with the confidential informant. He testified that he had assisted the confidential informant on previous occasions in knowingly selling stolen goods-lumber saws. He also claimed to have previously sold the confidential informant Viagra on numerous occasions. However, Young testified that he did not need Viagra and did not personally have a prescription for Viagra. He admitted that he was not a pharmacist. He explained that he bought Viagra from a guy in his neighborhood, and he in turn sold the Viagra to people with problems. Young further asserted that the confidential informant had a “problem” because he smoked too much crack. Young denied selling cocaine; rather he claimed that the confidential informant had tampered with the evidence and bought the .cocaine from someone else and switched it with the Viagra.

¶ 19. This case is similar to Tate v. State, 912 So.2d 919 (Miss.2005). In that case, agents with the Mississippi Drug Task Force arranged for a confidential informant to make a purchase of illegal drugs from Tate. The two met in a parking lot of a tobacco store where Tate gave a quantity of marijuana to the confidential informant. The confidential informant gave a code word to the narcotics agents over a hidden wire, and numerous agents swarmed to the scene. The agents discovered three more packages of marijuana in Tate’s possession — one on his person, one in the front seat of his vehicle, and one hidden in a secret compartment of his vehicle. Tate was arrested on charges of possession with intent to deliver and delivery of more than an ounce but less than a kilogram of marijuana. The State offered Tate’s prior convictions for sale under Rule 404(b) to show intent and predisposition contrary to Tate’s claim of entrapment.

¶20. Tate, like Young in the case before us, claimed that the confidential informant had planted the evidence. Tate claimed that the only marijuana belonging to him was that marijuana found on his person, and the other marijuana found in his vehicle did not belong to him. Tate asserted that the confidential informant planted the other two packages of marijuana at his home without his knowledge. Tate also claimed that the confidential informant told him that he was leaving drugs in the shed at his home. Tate’s defense at trial was that when he met the confidential informant on the day of the arrest, he was not selling any marijuana; he was only trying to return the marijuana to the confidential informant. The Tate court explained that a classic case of entrapment is where the law enforcement is both the supplier and the buyer of the contraband that is the subject of the defendant’s arrest. Id. at 924-25(¶ 10) (citing Moore v. State, 534 So.2d 557, 558 (Miss. 1988)). Tate alleged that the confidential informant was the supplier and the buyer of the marijuana. In the case at bar, Young claims that. Cook, the confidential informant, was the buyer and supplier of the cocaine in that he alleged Cook switched the Viagra for the cocaine.

¶ 21. Tate, 912 So.2d at 925(¶ 11) provides:

Entrapment has been defined as “the act of inducing or leading a person to commit a crime not originally contemplated by him, for the purpose of trapping him for the offense.”' Hopson v. State, 625 So.2d 395, 399 (Miss.1993) (emphasis added) (citing Phillips v. State, 493 So.2d 350, 354 (Miss.1986); McLemore v. State, 241 Miss. 664, 675, 125 So.2d 86, 91 (1960)). The defense of entrapment is affirmative and must be proved by the defendant. If the defendant already possessed the criminal intent, and the request or inducement merely gave the defendant the opportunity to commit what he or she was already predisposed to do, entrapment is not a defense. Id. (citing Bush v. State, 585 So.2d 1262, 1264 (Miss.1991)). Thus, predisposition to commit the crime becomes an issue when a defendant raises an entrapment defense.

¶ 22. This Court has held, as explained in Tate, that a defendant’s prior drug activity is admissible on the issue of predisposition. See Hopson, 625 So.2d at 402. Similarly in this case, since Young claimed to have been setup and that the confidential informant switched the drugs, Young’s intent was placed in issue. Young’s prior conviction for possession was admissible to show intent and to impeach his claim of a setup, and it constituted an important thread of his defense strategy as to why he was targeted.

¶ 23. The trial judge in this case went further than just evaluating prejudice under Mississippi Rule of Evidence 403. The trial judge conducted a Peterson analysis and found the following:

The Court finds that the Peterson test is satisfied by the possession conviction March 20 of 2000, and that the Court finds that the probative value of admitting the evidence outweighs any prejudicial effect. The crime has impeachment value, given the posture of the case, and given the remarks of counsel for Defense in . opening statement. It was within the last I guess seven years, around seven years ago, so the timeliness of it weighs in favor of the admissibility. There’s a similarity between that and the act charged here which, as far as prejudicial effect, weighs in the Defendant’s favor — the third factor in Peterson, but the importance of the Defendant’s testimony and the centrality of the credibility issue I think very clearly tipped the scales in favor of admissibility, and it has great — it has probative value, and the prejudicial effort would be minimal, if any. Certainly under Rule 403[it] would not be unduly or unfairly prejudicial.

¶ 24. If the defendant wanted a limiting instruction, he could have requested that such be given. In this case, the defendant not only failed to request a limiting instruction, he evidentially objected to the State’s proposed jury instruction S-8 regarding prior drug activity. Hence, the court instructed the State to withdraw that instruction. Young cannot now claim a benefit from a lack of an instruction that he failed to request and to which he objected.

¶ 25. Based on the foregoing reasons, the trial judge did not abuse his discretion. He conducted a Rule 403 balancing test as well as a Peterson analysis based on the facts and posture of the case before the trial court. At the time of the motion hearing wherein the trial judge conducted the Peterson and Rule 403 analysis, the defense had already painted a picture in its brief, but pointed, opening remarks of a set-up defense based on ridiculous charges. Young put his intent into issue, and the trial judge did not abuse his discretion in admitting the prior possession charge to impeach Young with respect to his claimed set-up and to show intent.

II. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶26. Young also contends that the jury’s guilty verdict was against the overwhelming weight of the evidence. This Court will disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)).

¶ 27. Young argues that it was just his word against that of Cook. However, as previously recounted, there was videotape evidence which strongly supported that Young sold drugs to the informant Cook. There also was additional evidence including the recovered cocaine, testimony of supervising law enforcement agents, and Young’s own testimony. It is the responsibility of the jury to resolve the credibility of the witnesses. Mamon v. State, 724 So.2d 878, 881(¶ 13) (Miss.1998).

¶28. There was more than sufficient evidence to support the jury’s verdict. All the elements of sale of cocaine were established by credible evidence.

CONCLUSION

¶ 29. We affirm the judgment of the Circuit Court of Walthall County.

¶ 30. THE JUDGMENT OF THE WALTHALL COUNTY CIRCUIT COURT OF CONVICTION OF TWO COUNTS OF SALE OF COCAINE AND SENTENCE AS A HABITUAL OFFENDER OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION AND TO PAY A $5,000 FINE FOR EACH COUNT, $300 RESTITUTION TO THE MISSISSIPPI CRIME LAB, AND $300 RESTITUTION TO THE SOUTHWEST MISSISSIPPI INTER-JURISDICTIONAL NARCOTICS ENFORCEMENT UNIT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WALTHALL COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., NOT PARTICIPATING.

      . The defense did not request any entrapment jury instruction.


author: SMITH, Justice.

text:
    Ex parte McKENZIE OIL COMPANY, INC. and Ex parte Gary Dewayne Heathcock (In re Lee Harris Franklin v. Gary Dewayne Heathcock and McKenzie Oil Company, Inc.)
    1071011 and 1071021.
    Supreme Court of Alabama.
    Aug. 22, 2008.
    Rehearing Denied Jan. 16, 2009.

      Jeff E. Friedman and Jess S. Boone of Friedman, Leak, Dazzio, Zulanas & Bowling, P.C., Birmingham, for petitioner McKenzie Oil Company, Inc.
    Brief in opposition to application for rehearing filed by Kori L. Clement of Hare, Clement & Duck, P.C., Birmingham, for petitioner Gary Dewayne Heathcock.
    C. Carter Clay of Pittman, Dutton, Kirby & Heliums, P.C., Birmingham, for respondent.
   SMITH, Justice.

McKenzie Oil Company, Inc. (“McKenzie”), and Gary Dewayne Heathcock, defendants in an action pending in the Barbour Circuit Court, petition for a writ of mandamus directing the trial court to transfer the case to the Escambia Circuit Court on the basis of forum non conve-niens. We grant the petition and issue the writ.

Facts and Procedural History

In the early morning hours of September 24, 2006, Heathcock was allegedly driving a vehicle that collided with a vehicle driven by Lee Harris Franklin. The accident occurred on Alabama Highway 21 near the City of Atmore in Escambia County. Franklin was injured in the accident and was transported to Atmore Community Hospital. Heathcock subsequently pleaded guilty in an Escambia County court to a charge of reckless driving stemming from the accident.

According to the allegations in the materials before us, McKenzie operated a convenience store in Escambia County referred to in the documents before us as “Atmore Interstate BP.” It is alleged that Heathcock, while he was visibly intoxicated, purchased alcoholic beverages at this store before the accident. The accident, apparently by coincidence, occurred in front of the Atmore Interstate BP convenience store several hours after the alleged sale.

Franklin is a resident of Clarke County. In January 2007, Franklin sued Heathcock in the Clarke Circuit Court, seeking damages for, among other things, Heathcock’s alleged negligence and wantonness. Before Heathcock was served with the complaint, Franklin moved to dismiss the case; in July 2007, the Clarke Circuit Court dismissed the complaint without prejudice.

On August 28, 2007, Franklin filed a new complaint, this time naming both Heath-cock and McKenzie as defendants, in the circuit court in Barbour County, where McKenzie’s corporate headquarters is located. Against Heathcock, Franklin sought damages for negligent, wanton, and willful conduct. Against McKenzie, Franklin sought damages under the Dram Shop Act, Ala.Code 1975, § 6-5-71.

McKenzie answered the complaint and, as an affirmative defense, alleged that venue in the Barbour Circuit Court was neither appropriate nor convenient. McKenzie subsequently filed a motion to transfer the case to the Escambia Circuit Court on the basis of forum non conveniens. The motion was supported by a brief and by evidentiary exhibits. Franklin responded to the motion, and the Barbour Circuit Court held a hearing on December 4, 2007. When it was discovered that Heathcock had not yet been served with a complaint, the trial court entered the following notation in the case-action summary: “Attorneys to do more discovery.”

Heathcock was ultimately served with the complaint; he later also filed a motion to transfer the case to Escambia County on the basis of forum non conveniens. A hearing was set for this motion; before the hearing was held, McKenzie filed a “Motion for Clarification,” asking the trial court to clarify whether the notation in the case-action summary stating that the attorneys were “to do more discovery” directed the parties to conduct discovery on the merits or whether such discovery should be limited to the issue of venue.

On March 12, 2008, the trial court held a hearing on Heathcock’s motion to transfer and McKenzie’s “Motion for Clarification.” That day, the trial court entered an order stating: “Merits and venue discovery to continue. Venue to be decided post discovery.” McKenzie filed a petition in this Court for a writ of mandamus, and the next day Heathcock also filed a petition for the writ of mandamus in this Court, in essence joining McKenzie’s petition (hereinafter McKenzie and Heathcock will be referred to collectively as “McKenzie”).

Standard of Review

“ ‘The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus.’ Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998). A writ of mandamus is appropriate when the petitioner can demonstrate ‘(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). Additionally, this Court reviews mandamus petitions challenging a ruling on venue on the basis of forum non conve-niens by asking whether the trial court exceeded its discretion. Ex parte Fuller, 955 So.2d 414 (Ala.2006); Ex parte Verbena United Methodist Church, 953 So.2d 395 (Ala.2006). Our review is limited to only those facts that were before the trial court. Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala. 2002).”

Ex parte Kane, 989 So.2d 509, 511 (Ala. 2008).

Discussion

Alabama Code 1975, § 6-3-21.1, Alabama’s forum non conveniens statute, provides when an action must be transferred under the doctrine of forum non conveniens:

“With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein. ...”

Ala.Code 1975, § 6-3-21.1(a).

A party moving for a transfer under § 6-3-21.1 has the initial burden of showing, among other things, that the transfer is justified based either on the convenience of the parties and witnesses or in the “interest of justice.” Ex parte Masonite Corp., 789 So.2d 830, 831 (Ala. 2001); Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998). In its motions for a change of venue, McKenzie argued that both the convenience of the parties and witnesses and the interest of justice required a transfer of the case to Escambia County. Because McKenzie has demonstrated that the interest of justice requires a transfer in this case, we do not address the convenience of the parties and witnesses.

“This Court has held that litigation should be handled in the forum where the injury occurred.” Ex parte Fuller, 955 So.2d 414, 416 (Ala.2006), citing Ex parte Sawyer, 892 So.2d 898, 904 (Ala.2004). Furthermore, the “interest of justice” prong of § 6-S-21.1 requires “the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action.” Ex parte National Sec. Ins. Co., 727 So.2d at 790. Thus, “in analyzing the interest-of-justice prong of § 6-3-21.1, this Court focuses on whether the ‘nexus’ or ‘connection’ between the plaintiffs action and the original forum is strong enough to warrant burdening the plaintiffs forum with the action.” Ex parte First Tennessee Bank Nat’l Ass’n, 994 So.2d 906, 911 (Ala.2008). McKenzie therefore had the burden of demonstrating “ ‘that having the case heard in [Escambia] County would more serve the interest of justice ....’” Ex parte First Tennessee Bank, 994 So.2d at 909 (quoting Ex parte Fuller, 955 So.2d at 416).

Franklin points out that McKenzie’s corporate headquarters is located in Barbour County; thus, Franklin claims that Barbour County and its citizens have an interest in McKenzie’s “well-being” and a “significant interest in whether McKenzie” has fulfilled its obligations as a vendor of alcoholic beverages.

We agree that McKenzie has “a connection” with Barbour County by virtue of the location of its corporate headquarters. However, we find this connection to Barbour County to be “little” and the connection with Escambia County to be “strong.” Ex parte National Sec. Ins. Co., supra.

First, we note that the courts of Escam-bia County have been invoked to punish the traffic violation arising from the accident. Cf. Kane, 989 So.2d at 513 (holding, in part, that the interest of justice required a transfer to a forum where a related action involving the same incident and the same witnesses was pending).

Additionally, we note that virtually none of the events or circumstances involved in this case occurred in or relate to Barbour County. Specifically, the accident giving rise to Franklin’s claims and the alleged tortious conduct by both Heathcock and McKenzie took place in Escambia County. Law-enforcement personnel and medical personnel in Escambia County investigated the accident and treated Franklin’s injuries. Additionally, the employees of McKenzie who allegedly violated the Dram Shop Act work not at the corporate headquarters in Barbour County but at the Atmore Interstate BP convenience store, which actually conducts business for McKenzie in Escambia County. Heath-cock resides in Escambia County. For all that appears, all material events in this case, including the accident, occurred in Escambia County.

Given this small nexus and little connection with the facts of this case to Barbour County and the strong connection with Escambia County, we hold that hearing the case in Escambia County “would more serve the interest of justice.” Ex parte First Tennessee Bank, supra. Therefore, McKenzie has demonstrated that the action is due to be transferred to Escambia County under Ala.Code 1975, § 6-3-21.1.

“Alabama’s forum non conveniens statute is compulsory. See Ex parte Prudential Ins. Co. of America, 721 So.2d 1135, 1138 (Ala.1998) (‘The word “shall” is clear and unambiguous and is imperative and mandatory.’).” Ex parte Sawyer, 892 So.2d 898, 905 n. 9 (Ala.2004). The language of § 6-3-21.1(a) requires that the trial court “shall ” transfer an action when the statute so requires. In this case, McKenzie had demonstrated that the action is due to be transferred to Escambia County. Instead of transferring the action, the trial court ordered discovery to continue. There is no argument presented that discovery on the issue of forum non conveniens was required, and the materials before us do not so indicate; therefore, the trial court exceeded its discretion in refusing to transfer the case to Escambia County.

Conclusion

Both McKenzie’s and Heathcock’s petitions for the writ of mandamus are granted, and the trial court is directed to transfer the case to the Escambia Circuit Court.

1071011 — PETITION GRANTED; WRIT ISSUED.

1071021 — PETITION GRANTED; WRIT ISSUED.

SEE, WOODALL, BOLIN, and PARKER, JJ., concur.

COBB, C.J., recuses herself.

      . The parties make no argument before this Court that this action was not “filed in an appropriate venue.”


text:
    Etole C. FURROW v. Gregory HELTON.
    1070667.
    Supreme Court of Alabama.
    Oct. 24, 2008.
    Rehearing Denied Jan. 16, 2009.

      Robert M. Galloway and J. Willis Garrett III of Galloway, Wettermark, Everest, Rutens & Gaillard, LLP, Mobile, for appellant.
    Thomas R. Boiler, Mobile, for appellee.
   SMITH, Justice.

Etole C. Furrow is the proponent of a will her mother, Jewell B. Malone, executed in 2003. Gregory Helton is a grandson of Malone who contested the 2003 will. After a trial before the Mobile County Probate Court, a jury returned a verdict in favor of Gregory, and Furrow appeals from a judgment entered on that verdict. We reverse and remand.

Facts and Procedural History

Malone, a resident of Mobile County, had three daughters: Furrow; Sarah C. Lott; and Dorothy June C. Helton, who was Gregory’s mother. Malone had grandchildren by each daughter.

Malone executed a will in 1995 devising her estate to her three daughters in equal shares. If a daughter predeceased Malone, that daughter’s share under the 1995 will would pass to the daughter’s children per stirpes. The 1995 will named Furrow as the executrix of Malone’s estate; in the event Furrow could not serve, Lott and Helton were to be co-executrixes.

After a protracted illness, Malone’s daughter Helton died on November 30, 2003. Malone executed a new will on December 16, 2003, devising her estate equally between Furrow and Lott, Malone’s two remaining living daughters. The 2003 will made no provision for any of Malone’s grandchildren; instead, it provided that if either Furrow or Lott preceded Malone in death, the surviving daughter would receive Malone’s entire estate. The 2003 will named Furrow as the executrix or, alternatively, Lott, if Furrow could not serve.

Malone died on June 20, 2006. Furrow sought to have the 2003 will probated in the Mobile County Probate Court, and Gregory filed a will contest alleging, among other things, that the 2003 will was the result of Furrow’s undue influence.

The will contest was tried before a jury. Before the matter was submitted to the jury at the conclusion of the trial, the probate court entered a judgment as a matter of law (“JML”) against Gregory on all claims except the claim alleging that Furrow had exercised undue influence over Malone regarding the 2003 will. The jury returned a verdict in Gregory’s favor on his claim of undue influence, and the probate court entered a judgment on the verdict in favor of Gregory and against the 2003 will. Furrow filed a renewed motion for a JML under Rule 50(b), Ala. R. Civ. P., which the trial court later denied. Furrow appealed to this Court. See § 12-22-21, Ala.Code 1975 (authorizing an appeal to this Court from an order, judgment, or decree of the probate court “on a contest as to the validity of a will”).

Discussion

Furrow contends she was entitled to a JML as to Gregory’s claim that the 2003 will was the result of Furrow’s allegedly exercising undue influence over Malone.

“ ‘When reviewing a ruling on a motion for a JML [judgment as a matter of law], this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a JML. Regarding questions of fact, the ultimate question is whether the non-movant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. The nonmovant must have presented substantial evidence in order to withstand a motion for a JML. A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmov-ant and entertains such reasonable inferences as the jury would have been free to draw. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling.’ ”

City of Birmingham v. Brown, 969 So.2d 910, 915 (Ala.2007) (quoting Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala.2003)).

Gregory, as the contestant, had the burden at trial of proving the elements of undue influence. Clifton v. Clifton, 529 So.2d 980, 983 (Ala.1988) (“It is well established that the contestant who challenges a will on the basis of undue influence bears the burden of proving such allegations.” (citing Kelly v. Donaldson, 456 So.2d 30, 33 (Ala.1984))). As the proponent of the will, Furrow opposed Gregory’s claim of undue influence; therefore, the following is relevant to our review of the trial court’s denial of Furrow’s motion for a JML:

“JML in favor of a movant who does not assert the claim or affirmative defense but who only opposes it, and who therefore does not bear the burden of proof, is appropriate in either of two alternative cases. One is that the claim or affirmative defense is invalid in legal theory. See Harkins & Co. v. Lewis, 535 So.2d 104 (Ala.1988). The other is that one or more contested essential elements of the claim or affirmative defenses is unsupported by substantial evidence. See Banks v. Harbin, 500 So.2d 1027 (Ala.1986), and McKerley [v. Etowah-DeKalb-Cherokee Mental Health Bd., Inc., 686 So.2d 1194 (Ala.Civ.App. 1996)]. If either alternative be true, JML is appropriate. See Harkins, supra, Banks, supra, and McKerley, supra. If, however, the nonmovant’s claim or affirmative defense is valid in legal theory and is supported by substantial evidence on every contested element, JML is inappropriate irrespective of the presence or weight of countervailing evidence. See Driver [v. National Sec. Fire & Cas. Co., 658 So.2d 390 (Ala. 1995) ], and First Financial [Ins. Co. v. Tillery, 626 So.2d 1252 (Ala.1993) ].”

Ex parte Helms, 873 So.2d 1139, 1143-44 (Ala.2003).

Furrow contends that the second scenario described in Helms applies in the present case, i.e., “that one or more contested essential elements of the claim or affirmative defenses is unsupported by substantial evidence.” 873 So.2d at 1143. Furrow argues that the burden of proof never shifted to her and that the trial court erred in denying her motion for a JML on the undue-influence claim. We agree.

As the contestant, Gregory was required to offer substantial evidence showing

“(1) that a confidential relationship existed between a favored beneficiary and the testator; (2) that the influence of or for the beneficiary was dominant and controlling in that relationship; and (3) that there was undue activity on the part of the dominant party in procuring the execution of the will.”

Clifton, 529 So.2d at 983 (citing Penn v. Jarrett, 447 So.2d 723, 724 (Ala.1984); Reed v. Walters, 396 So.2d 83, 86 (Ala. 1981)). See also Hubbard v. Moseley, 261 Ala. 683, 686-87, 75 So.2d 658, 661 (1954).

In the present case, Gregory failed to offer substantial evidence suggesting that Furrow exercised a dominant or controlling influence over Malone or that Furrow engaged in undue activity in procuring the execution of the will. Thus, Gregory failed to meet his burden of proof on at least two of the three elements of his undue-influence claim.

The presumption is that the parent (Malone) was dominant over the child (Furrow). Clifton, 529 So.2d at 984 (citing Nottage v. Jones, 388 So.2d 923, 926 (Ala. 1980) (where the party in a will contest alleged to have exerted undue influence over the testatrix is the child of the testatrix, it is ordinarily presumed that the parent is dominant over the child)). Thus, Gregory had the burden of offering substantial evidence to the contrary. Wilson v. Wehunt, 631 So.2d 991, 993-94 (Ala. 1994). See also Clifton, 529 So.2d at 983-84.

Gregory correctly notes that the issue of dominance may be proved by circumstantial evidence. See Ex parte Helms, 873 So.2d at 1148; Allen v. Sconyers, 669 So.2d 113, 118 (Ala.1995). However, the circumstantial evidence offered to show dominance must nevertheless be substantial evidence. See, e.g., Wilson, 631 So.2d at 993-94. “Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). See also § 12-21-12(d), Ala.Code 1975.

Gregory contends that “the jury accepted the testimony of [Gregory], [Gregory’s father, Winfred Helton, Sr.], and [Gregory’s brother, Winfred Helton, Jr. (‘Bubba’) ], that [Malone] was feeble, hallucinating, and vulnerable” around the time she executed the 2003 will. Bubba testified that Malone “probably took over 10 pills a day” in the two- to three-year period before June Helton died in November 2003. He testified that “on a few occasions” he saw her take the medication Haldol, which he testified his ex-wife thought was for the treatment of Alzheimer’s disease.

Gregory also argues that the jury rejected most of or all Furrow’s testimony because, he says, the jury found it lacking in credibility. He contends that the jury’s rejection of Furrow’s testimony and the jury’s acceptance of his testimony and the testimony of Winfred, Sr., and Bubba “was in and of itself [substantial evidence from which] the jury could have inferred [Furrow] was dominant in her exercise of a confidential relationship at the time the contested will was procured.” Gregory contends, therefore, that the facts in the present case present a jury question on the issue of undue influence as did the facts in Ex parte Helms, supra, in which this Court held that a summary judgment was improper on an undue-influence claim. 873 So.2d at 1148-49.

In Ex parte Helms, this Court found that the contestants had presented substantial evidence of dominance and control and undue activity in procuring the execution of the will being contested. The testator in Ex parte Helms executed a second will in 1997, approximately 12 days after her doctor informed her that she was dying of cancer and “that [her] family situation need[ed] to be put in order.” The second will “ ‘practically disinherited all of the contestants and left almost all her estate to the proponents.’ ” 873 So.2d at 1146 (quoting Morrow v. Helms, 873 So.2d 1132, 1135 (Ala.Civ.App.2001)). Under the testator’s prior will, the contestants would have inherited “substantial property.” 873 So.2d at 1145.

The evidence showed that the testator in Ex parte Helms was taking the medication Lortab for pain on a regular basis both before and after the date of the execution of the second will. 873 So.2d at 1145, 1147-48. There was extensive medical testimony regarding the side effects of Lortab; specifically, there was testimony that Lortab alters the mind, affects thinking, interferes with the ability to think clearly, “makes a person ‘sedated and confused,’ ” affects the central nervous system, causes drowsiness, and can cause a person “to lose the ability to know what he or she is doing.” 873 So.2d at 1146. Further, there was evidence suggesting that the testator in Ex parte Helms experienced many of those side effects.

This Court held that there was substantial evidence of the proponents’ dominance and control in

“[t]he evidence of the proponents’ access to and control over [the testator’s] money and property, their profiting from this access and control during [the testator’s] last two years of life and soon after [her] death, their control over [her] transportation, and their control, to some extent, of access to [the testator] during the 16 critical days culminating with the execution of the putative second will.”

873 So.2d at 1148-49. Additionally, this Court in Ex parte Helms held that the substantial evidence of the proponents’ undue activity in the procurement of the will included the following:

— During the last two years of the testator’s life, the proponents obtained joint ownership with right of survivor-ship to certificates of deposit totaling $215,743.95 in value;
— One of the proponents opened a joint checking account in the names of the testator and the proponents with right of survivorship and deposited only the testator’s money in the account, and the statements for the account were mailed only to the address of one of the proponents;
— Both proponents had a key and access to the testator’s safe-deposit box, although one of the proponents had denied during the will-contest litigation that she had such access;
— One of the proponents suggested the lawyer who drafted the second will, and that lawyer was not the same lawyer who drafted the testator’s first will;
— During the weeks preceding her death, the testator was dependent on the proponents for all of her transportation, and one of the proponents must have driven her to the lawyer’s office to execute the second will; and
— “[B]oth proponents falsely denied any knowledge of the second will.”

873 So.2d at 1145-46, 1148-49.

Furrow contends, however, that the facts here are more analogous to Wilson, supra, in which this Court examined a claim that a son had exerted undue influence over his mother in procuring a deed conveying property to the son. In Wilson, the son who was alleged to have exerted undue influence argued to this Court that the grandchildren seeking to cancel the deed had not offered sufficient evidence showing that he had exercised dominance over his mother. 631 So.2d at 995. In agreeing with the son, this Court considered the evidence that the son had provided his mother with financial assistance and assistance in handling her affairs, had provided transportation, had assisted her in writing her checks, and had arranged to have the deed in question prepared and her signature notarized. 631 So.2d at 994. This Court concluded that “evidence of this nature, without more, is simply not sufficient to justify a finding of subservience on the part of the parent, so as to create a legal presumption of undue influence.” 631 So.2d at 994. As to the proof necessary to overcome the presumption that a parent is dominant over a child, this Court stated:

“It is well settled that one alleging dominance of a child over a parent must prove that ‘time and circumstances have reversed the order of nature, so that the dominion of the parent has not merely ceased, but has been displaced, by subservience to the child.’ Hawthorne v. Jenkins, 182 Ala. 255, 260, 62 So. 505, 506 (1913) (emphasis in original). ‘Subservient’ is defined in The American Heritage Dictionary of the English Language (1969) as ‘[ujseful as a means or instrument; serving to promote some end ... [; subordinate in capacity or function.’ Black’s Law Dictionary 486 (6th ed.1990) defines ‘dominate’ as ‘[t]o master, to rule, or to control.’ Thus, for the burden of proof to shift, it is clear that our cases require proof of more than a reversal of the traditional roles of parent as care giver and child as care recipient; they require proof that the parent’s will has become subordinate to the will of the child. It is also clear from our cases that the mere relationship of parent and child alone, even when coupled with some activity on the part of the child in securing the preparation of legal papers for the parent, is not sufficient to prove subservience on the part of the parent, so as to shift to the child the burden of proving an absence of undue influence. See, e.g., Keeble v. Underwood, 193 Ala. 582, 586-87, 69 So. 473, 475 (1915), a will contest case wherein this Court noted:
“ ‘It is now well settled that where a donee occupies to the donor a position of trust and confidence, such as that between a beneficiary occupying a confidential relation and the testatrix, and such donee or beneficiary takes part or exercises some activity in the preparation or in the procurement of the execution of the will, the burden of proof is shifted to the beneficiary to show that the contested instrument was not superinduced by undue influence. Scarbrough v. Scarbrough, 185 Ala. 468, 64 So. 105 [1913]; Bancroft v. Otis, 91 Ala. 279, 8 So. 286, 24 Am. St. Rep. 904 [1890]. This is the general rule. However, while the relationship of parent and child is per se confidential, yet it is well settled that it is always presumed prima facie that in all transactions between them the parent is the dominant party and that such are free from undue influence. The mere relationship alone, coupled with activity on the part of the child in seeming the preparation of the will, is not sufficient, under the authorities, to shift the burden of proof upon the child in cases of gift by the parent, as we hold that, prima facie, the parent is the dominant spirit in the transaction, and gifts flow naturally from parent to child. One of the foundations of the rule as to presumption of undue influence is the theory that the donor is the weaker party. While the relation of parent and child is per se confidential, yet in view of the presumption, recognized in this state and abundantly supported by authorities elsewhere, that the parent is the dominant spirit, the burden of proof is not shifted upon the mere proof of relationship and activity, on the part of the beneficiary child, in the preparation of the will....’
“(Emphasis added.) See, also, Bain v. Bain, 150 Ala. 453, 43 So. 562 (1907) (an action to set aside conveyances from a father to the wife of one of his sons and his son’s children).”

631 So.2d at 993-94.

In the present case, there was evidence indicating that Malone’s relatives — including Furrow, June Helton, Lott, Gregory, and Gregory’s wife — would drive her places, help her into her bath, bring her meals, and write checks on her behalf. However, there is no evidence indicating that Furrow in particular assumed a dominant role over Malone or that she denied others access to her.

Furrow testified that she drove Malone to the office of the attorney who drafted the 2003 will, and Gregory cites evidence suggesting that Furrow was present in the same room along with two witnesses and a notary when Malone executed the 2003 will. Gregory also cites evidence suggesting that when June Helton died, Furrow and Lott were angered by the listing in Helton’s obituary of one “Jimbo Lambert” as Helton’s stepson even though Lambert apparently was not related to Helton or to Malone by marriage or otherwise. Bubba testified that Furrow told him Malone “was very upset that Jimbo Lambert was in the obituary” and “that we probably get [sic] the last thing we would ever get from my grandmother,” and that evidence suggests Furrow’s displeasure with the reference to Lambert in the obituary may have prompted her to talk to Malone about executing a new will. Further, Gregory cites Bubba’s testimony that Furrow “is a woman that had a lot of influence over” Malone, and he contends that the jury could have reasonably inferred that Furrow used that alleged influence, unduly during the time she was at Malone’s house before the 2003 will was executed. We disagree.

Unlike the evidence in Ex parte Helms, there is no evidence in the present case that Furrow profited from Malone during the time leading up to Malone’s death or that she exercised exclusive control over Malone and denied others access to her during the time leading up to the execution of the 2003 will. Moreover, the lawyer who drafted the 2003 will for Malone was the same lawyer who had drafted her first will, unlike the situation in Ex parte Helms, and the attorney who drafted Malone’s 2003 will testified that he met with Malone a week before she executed the 2003 will. Specifically, the attorney testified that Malone met with him privately and told him that she wanted to execute a will containing the terms ultimately included in the 2003 will.

Further, the witnesses to the 2003 will and the individual who notarized the 2003 will testified at trial, and those individuals testified uniformly that Malone did not exhibit signs of mental slowness when she executed the 2003 will, that she appeared to be of a sound mind, that she knew the extent of her bounty and her wishes in disposing of it, and that she claimed to be acting freely and voluntarily in signing the 2003 will. Although Bubba testified that Malone “probably took over 10 pills a day,” including Haldol, there was no evidence as to the possible side effects of those medications or evidence indicating that Malone had taken any of those medications on the day she executed the 2003 will. Finally, unlike the testator in Ex parte Helms, there was no evidence indicating that Malone was dependent on Furrow for all of her transportation in the time leading up to the execution of the 2003 will or immediately thereafter.

The undisputed evidence at trial showed that during the last 10 years or so of Malone’s life, Furrow, who has lived in Louisiana for more than 30 years, visited Malone “three to four times every two months.” Furrow testified that she sometimes would come more often — “[i]t might be for 10 or 12 days.” Again, however, there was no evidence at trial indicating that Furrow ever exercised any degree of dominance or control over Malone during those visits or that Furrow denied others access to her during those visits. Furrow’s visits to her mother, her driving Malone to the lawyer’s office to execute the 2003 will, and her possibly sitting in the room in which the will was executed are no more dominating or controlling than were the actions of the son in Wilson, supra, which this Court held as a matter of law did not constitute substantial evidence of dominance or control.

Likewise, Furrow’s actions in the present case are not analogous to the actions described in the following summary by the Wilson Court of cases illustrating dominating or controlling behavior:

“[S]ee Haginas v. Haginas, 598 So.2d 1334 (Ala.1992) (involving an elderly woman, confined to a nursing home, who was pressured by her son over a period of several years to execute a deed, the son threatening to stop his visits if she did not sign); Brothers v. Moore, 349 So.2d 1107 (Ala.1977) (involving an elderly woman who could not read or write and whose son had taken over all of her business affairs); Gosa v. Willis, 341 So.2d 699 (Ala.1977) (involving an elderly couple who had exhibited signs of mental feebleness, had little education, and whose former son-in-law had duped them into believing that the conveyance of their property to him would resolve a ‘tax problem’); Jackson v. Rodda, 291 Ala. 569, 285 So.2d 77 (1973) (involving a man who had suffered a nervous breakdown after his wife was accidentally killed and whose daughter not only had looked after him and advised him in his personal affairs, but also had ‘insisted’ that he convey his property to her and had promised to ‘do the right thing by the other children,’ and then refused to reconvey the property to her father at his request); Orton v. Gay, 285 Ala. 270, 231 So.2d 305 (1970) (involving an elderly woman who, shortly after the death of her husband, conveyed her real property and turned over significant holdings of personal property to her daughter, who clearly had manipulated her so as to obtain her property); and Jones v. Boothe, 270 Ala. 420, 119 So.2d 203 (1960) (involving an elderly couple who had conveyed their property to their daughter shortly before the death of the father, under circumstances clearly indicating that the daughter had secretly lied to and pressured the couple in an attempt to avoid the operation of the father’s will). We find it significant that in each of the last four cases mentioned above at least one of the grantors was alive at the time of the trial and testified directly with respect to the question of dominance. In the first case cited, Haginas v. Haginas, the grantor was coerced into executing the deed by repeated threats on the part of her son that he would not visit her in the nursing home if she did not cooperate with him, and in the second case, Brothers v. Moore, the evidence indicated that the grantor was illiterate, in addition to being totally dependent on her son to handle her business affairs. These cases, we think, are materially distinguishable from the present case.”

Wilson, 631 So.2d at 994-95.

In Hall v. Hall, 502 So.2d 712, 714 (Ala. 1987), this Court stated that “there must be active interference [by the dominant party] in procuring the execution of the will, and such interference must go beyond compliance with the voluntary directions of the testator.” In Hall, the testator executed a will making his second wife, Theresa, the sole beneficiary of his estate; the will made no provision for his three adult children from his first marriage. One of those children contested the will, alleging that Theresa had exerted undue influence. This Court held that there was not a scintilla of evidence indicating that Theresa had exercised dominance over the testator or actively interfered in procuring the execution of the will. 502 So.2d at 713-14. This Court stated:

. “This Court has consistently held that the fact that a person is a favored beneficiary and is in a confidential relationship with the testator does not alone raise a presumption that the will was executed by undue influence. Arrington v. Working Woman’s Home, [368 So.2d 851 (Ala.1979) ], Kahalley v. Kahalley, 248 Ala. 624, 28 So.2d 792 (1947); Lockridge v. Brown, 184 Ala. 106, 63 So. 524 (1913). In addition to the confidential relationship, there must be active interference in procuring the execution of the will, and such interference must go beyond compliance with the voluntary directions of the testator. Arrington v. Working Woman’s Home, supra. ference in procuring the execution of the will, and such interference must go beyond compliance with the voluntary directions of the testator. Arrington v. Working Woman’s Home, supra.
“In Arrington v. Working Woman’s Home, supra, this Court stated:
“ ‘The scintilla rule is not satisfied by speculation. [Citation omitted.] Moreover, evidence to support undue influence must provide at least a reasonable inference, rather than mere suspicion. [Citation omitted.]’
“The affidavits submitted by the contestant do not provide any facts which show undue activity on the part of Theresa in procuring the execution of Floyd Sr.’s will. The affidavits state in conclusory fashion that Theresa was the dominant person in the marriage. These statements appear to be based upon speculation or suspicions of the affiants. There is no evidence that the will was the result of anything other than the strong bond of love and affection between Theresa and Floyd.”

502 So.2d at 714.

In the present case, Gregory did not present substantial evidence indicating that Furrow unduly influenced Malone or that she caused Malone to do something Malone did not independently want to do. The evidence does not suggest that Malone ever went “beyond compliance with the voluntary directions of the testator.” Hall, 502 So.2d at 714. Consequently, under Wilson, supra, and Hall, supra, Gregory did not present substantial evidence of undue influence, and the trial court erred in denying Furrow’s motion for a JML on the undue-influence claim.

Conclusion

The trial court’s judgment is reversed, and the cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and SEE, WOODALL, and PARKER, JJ., concur.

      . Because of our disposition of this appeal, we need not decide the issue whether Furrow is a favored beneficiary.

      . Specifically, Gregory testified that for approximately two years before the 2003 will was executed, Malone was "feeble.” He testified that Malone would "hallucinate, see things,” and that "[s]he would repeat herself. She would tell you one thing, five minutes later she would tell you the same thing. You would sit there an hour and she would tell you the story three or four times.” Bubba testified that Malone was "a very unstable woman” a week or so after June Helton’s death in November 2003 and was still "crying every day” about Helton's death. Bubba testified that Malone said "off-the-wall things” during that time. Winfred, Sr., testified that Malone would often repeat things.

      .In that regard, Bubba testified as follows:
      "Q. As far as you know, based on your observations, did anyone care for Ms. Malone during the say two- or three-year period before your mother passed on in 2003?
      "A. My Aunt Sarah come down in the evening and brought her supper.
      "Q. Did anybody else go by there and care for her?
      “A. My mother and father.
      “Q. Did you have the opportunity to go into your grandmother's house on few or many occasions?

        "A. Many occasions.
      "Q. And while you were there, did you ever have an opportunity to observe if she was — had any medications sitting around there?
      "A. Yes, sir. She probably took over 10 pills a day.
      “Q. And do you know if you ever saw the prescriptions what those were for?
      "A. The only prescription that I really realized what — me and my ex-wife Dana was in there looking to get her medicine ready for her one day and it was Haldol and it stood out for her — her grandmother had Alzheimer’s and that's what the medication was for.
      “Q. I see, sir. Did you ever have an opportunity to see your grandmother take the medication?
      "A. Yes, sir.
      “Q. And on few or many occasions?
      "A. Few occasions.”

      . Lortab consists of "hydrocodone, a synthetic morphine-like narcotic.” 873 So.2d at 1145.

      . Gregory contends that Wilson is distinguishable because it involved an action to cancel a deed rather than a will contest; Gregory asserts that the principles governing the "legal shifting of the burden” in an action seeking to set aside an inter vivos transfer "is distinct from wills.” We disagree that Wilson is distinguishable on that basis. Many of the authorities cited in Wilson as to the claim of undue influence involved claims of undue influence in the actions contesting wills. See, e.g., Wilson, 631 So.2d at 992-94 (citing and quoting extensively from Chandler v. Chandler, 514 So.2d 1307 (Ala.1987), and Keeble v. Underwood, 193 Ala. 582, 69 So. 473 (1915), both of which involved will contests).

      . Effective June 11, 1987, the scintilla rule was abolished in favor of the substantial-evidence rule. See § 12-21-12, Ala.Code 1975.

      . Because there was not substantial evidence showing that Furrow dominated or controlled Malone or otherwise unduly influenced the making and execution of the 2003 will, we pretermit consideration of Furrow’s argument that she was not a favored beneficiary under the 2003 will.