author: MARC E. JOHNSON, Judge.

text:
    Maritza Rodriguez GUERRERO v. Joseph GUERRERO.
    No. 12-CA-527.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2013.
    Rehearing Denied April 22, 2013.
    Susan H. Neathamer, Attorney at Law, Gretna, LA, for Plaintiff/Appellee.
    Ralph E. Smith, Attorney at Law, Me-tairie, LA, for Defendant/Appellant.

      Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   MARC E. JOHNSON, Judge.

12Defendant/Appellant, Joseph Guerrero, seeks review of the trial court’s rulings concerning the payment of retirement benefits in favor of Plaintiff/Appellee, Maritza Rodriguez Guerrero, from the 24th Judicial District Court, Division “C”. Additionally, Ms. Guerrero seeks consideration of her Answer and her Peremptory Exception of Res Judicata. For the following reasons, we sustain the peremptory exception and deny the request of the Answer.

FACTS AND PROCEDURAL HISTORY

This is the second appeal regarding the payment of Mr. Guerrero’s retirement benefits. Portions of the following recitation of the facts of this matter are taken from Guerrero v. Guerrero, 10-930 (La.App. 5 Cir. 5/10/11); 65 So.3d 737, rehearing denied, (La.App. 5 Cir. 7/18/11), writ denied, 11-1805 (La.10/21/11); 73 So.3d 385.

Mr. Guerrero and Ms. Guerrero were married in South Carolina on February 3, 1972, and at some point thereafter, established their marital domicile in the | ^Parish of Jefferson. Ms. Guerrero filed a Petition for Divorce against Mr. Guerrero on May 21, 1993. They were divorced in Jefferson Parish on July 27, 1994. On December 4, 1996, the parties entered into a Consent Judgment for Partition of Community Property, which contained two pertinent provisions. First, Subsection 2 in the section entitled “To Maritza Rodriguez” provided the following:

Maritza Guerrero shall receive, and does hereby receive, her portion of Joseph Guerrero’s Federal retirement plan with the United States Navy, pursuant to the Simms [Sims] case formula (Simms v. Simms [Sims v. Sims], 358 So.2d 919 (La.1978)), and the parties stipulate that there are twenty-one (21) years of community service.

Second, the following paragraph is included in the general provisions of the Consent Judgment:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that should any of the partitioned property be insufficiently or incorrectly described herein, either party shall immediately, when called upon to do so by the other party in writing, execute such amendato-ry acts as many [sic] be necessary or required to vest title in the proper party or to sufficiently or correctly describe the property, without additional consideration being given.

On October 10, 2008, Ms. Guerrero filed a Motion and Order to Amend the Consent Judgment for Partition of Community Property, claiming she was entitled to Mr. Guerrero’s retirement as provided by the Uniformed Services Former Spouse’s Protection Act, and a Motion for Contempt. A default judgment in favor of Ms. Guerrero was rendered on February 26, 2009, which amended the language of the Consent Judgment as requested. The judgment did not hold Mr. Guerrero in contempt; however, he was ordered to pay Ms. Guerrero an unspecified sum, which would be determined after the amount of arrearages were calculated, and attorney’s fees and costs.

On July 29, 2009, Mr. Guerrero filed a Petition to Annul Default Judgment, arguing the default judgment rendered by the trial court on February 26, 2009 was |4null because he had never been served with the motion to amend or notice of the judgment. Mr. Guerrero also filed a Peremptory Exception to Dismiss Amended Petition for Lack of Jurisdiction on January 25, 2010. Mr. Guerrero’s petition and motion, along with other motions, were heard on February 10, 2010. On the same date, the trial court overruled Mr. Guerrero’s exception and denied his petition from the bench. Additionally, among other things, there was a decree that the February 26, 2009 judgment be made executory. The written judgment of the February 10, 2010 proceeding was filed and entered into the record on March 1, 2010.

Mr. Guerrero filed a Motion for New Trial on April 1, 2010, arguing the judgment on the motion to amend exceeded the scoped allowed by La. C.C.P. art.1951; Ms. Guerrero was not entitled to payments under the Uniformed Services Former Spouse’s Protection Act; and the Sims case was not applicable to him. The motion was denied by the trial court. Mr. Guerrero subsequently filed a Petition and Order for Appeal on April 19, 2010, which was denied on April 23, 2010 because the time delays for filing an appeal of the March 1, 2010 judgment had passed. On April 23, 2010, Ms. Guerrero filed a Motion for Contempt; afterwards, she filed a Peremptory Exception of Prescription on May 11, 2010.

The motions and the exception were heard on May 25, 2010, and the trial court granted Ms. Guerrero’s exception and denied Mr. Guerrero’s Motion for New Trial in open court. Mr. Guerrero was also held in contempt of court and was ordered to pay attorney’s fees and court costs. Additionally, the trial court ordered immediate garnishment of Mr. Guerrero’s wages until the arrearages of $99,936.78 owed to Ms. Guerrero were satisfied. A written judgment concerning those matters was rendered on June 10, 2010. Mr. Guerrero appealed from the May 25, 2010 judgment.

Ijn his appeal, Mr. Guerrero raised two assignments of error: the trial court erred in rendering judgments against him in violation of the Soldiers and Sailors Relief Act of 1940, and the trial court lacked the jurisdiction to amend the 1996 Consent Judgment. In the opinion, this Court found: 1) Mr. Guerrero failed to show that he was entitled to application of the provisions of the Act; 2) the portion of the February 26, 2009 judgment that amended the language of the Consent Judgment was final and was not before this Court because Mr. Guerrero failed to timely appeal the ruling; and 3) the trial court did not err in holding Mr. Guerrero in contempt of court in its May 25, 2010 judgment. Also, this Court denied Ms. Guerrero’s request for sanctions and additional sums for the filing of a frivolous appeal on the basis that she did not answer the appeal or file her own notice of appeal. See Guerrero, supra.

Subsequently, Ms. Guerrero filed a Motion to Reset her previously filed Second Motion for Contempt and Motion for Sanctions. The motions were heard on January 23, 2012. On the same date, Mr. Guerrero was found in contempt of court and was ordered to pay attorney’s fees and court costs.

Mr. Guerrero filed a Rule for Partial New Trial on the basis of newly discovered evidence on the issue of liability and damages. In his memorandum, Mr. Guerrero contested Ms. Guerrero’s entitlement to his retirement benefits and requested a rehearing on her eligibility and the calculation of the amount owed. On February 1, 2012, the trial court denied Mr. Guerrero’s rule and handwrote on the order, “Motion for New Trial was heard on 5-25-2010 and was denied.” Ms. Guerrero also filed a Motion for New Trial on January 30, 2012. In addition, Ms. Guerrero filed a Peremptory Exception of Res Judicata and Motion for Sanctions. In reference to the peremptory exception, the trial judge handwrote, “previously | ^DENIED by this Court on 2-1-2012.” In its February 29, 2012 judgment, the trial court denied both motions for new trial and set a deadline for Mr. Guerrero’s payments of attorney’s fees and court costs.

On April 26, 2012, Mr. Guerrero filed a Notice of Appeal. The trial court set a security bond of $70,000.00. Mr. Guerrero filed a Motion to Amend Order for Devolu-tive Appeal, requesting the trial court to reduce the security from $70,000.00 to $847.00. The trial court denied the motion on June 1, 2012. The instant appeal followed.

ASSIGNMENTS OF ERROR

On appeal, Mr. Guerrero alleges the following assignments of error: 1) the trial court erred in altering a final judgment, which in effect, altered the substance of the final Consent Judgment to dissolve the marriage and held Mr. Guerrero liable for payment of the retirement benefits he became eligible to receive twelve years after the entry of the Consent Judgment dissolving the marriage; and 2) the trial court erred in considering an amendment to the Consent Judgment because all of the necessary parties to the matter were not involved. In response, Ms. Guerrero has filed a Peremptory Exception of Res Judicata and an Answer to the appeal.

LAW AND ANALYSIS

Peremptory Exception of Res Judicata and Assignments of Error Numbers 1 and 2

Ms. Guerrero has raised a Peremptory Exception of Res Judicata with this Court alleging that the issues being argued by Mr. Guerrero were resolved by this |7Court and the Louisiana Supreme Court in Guerrero, supra. Ms. Guerrero avers that, regardless of the number of pleadings and/or appeals regarding the underlying judgment on the Motion to Amend (rendered in open court on February 10, 2010 and signed on March 1, 2010), all issues concerning that ruling have been adjudged. Ms.' Guerrero further avers that any attempt to overturn the judgment is res judicata.

The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record. La. C.C.P. art. 2168. We will consider Ms. Guerrero’s exception because the ground of the exception appears in the record.

In his assignments of error, Mr. Guerrero alleges the trial court erred in 1) granting Ms. Guerrero’s motion and order to amend the 1996 Consent Judgment, and 2) finding him in contempt of court for his failure to pay the amount claimed by Ms. Guerrero in respect to his retirement benefits from the Naval reserve because the trial court did not render a valid court order. Mr. Guerrero contends the granting of Ms. Guerrero’s motion went beyond the scope of the trial court’s authority because it was incompetent and the issue was well beyond its jurisdiction. Mr. Guerrero avers that, pursuant to the Uniformed Services Former Spouses Protection Act, 10 U.S.C.A. § 1408 et seq., his retirement benefits were protected from being adjudicated by the trial court because a necessary party to the litigation, e.g., the Department of Defense, was not involved in the matter. Mr. Guerrero also avers Ms. Guerrero did not meet certain requirements of the Act, e.g., no valid court order was served on an agent of the secretary of the Department of Defense, no determination of Ms. Guerrero’s entitlement to the retirement benefits was made by the Department of Defense, and Ms. Guerrero failed to prove |sshe never remarried. Because of these reasons, Mr. Guerrero seeks to have this Court vacate the February 26, 2009 judgment and have the February 10, 2010 judgment for contempt, costs, attorney’s fees and other expenses rescinded.

La. R.S. 13:4231 provides,

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

A reading of La. R.S. 13:4231 reveals that a second action is precluded when all of the following are satisfied: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Burguieres v. Pollingue, 02-1385, p. 8, 843 So.2d 1049, 1053 (La.2003), rehearing denied, (La.4/25/03).

La. R.S. 13:4231 embraces the broad usage of the phrase “res judicata ” to include both claim preclusion (res judi-cata) and issue preclusion (collateral es-toppel). In re Interdiction of Stephens, 40,965, p. 8 (La.App. 2 Cir. 6/2/06); 930 So.2d 1222, 1226, writ denied, 06-1686 (La.7/12/06); 933 So.2d.796. Under claim preclusion, a final judgment on the merits precludes the parties from | ¡¡relitigating matters that were or could have been raised in that action. Id. Thus, res judi-cata used in the broad sense has two different aspects: 1) foreclosure of relitigat-ing matters that have never been litigated but should have been advanced in the earlier suit; and 2) foreclosure of relitigating matters that have been previously litigated and decided. Id.

In this matter, Mr. Guerrero has previously challenged the February 26, 2009 judgment, alleging the trial court was without jurisdiction to amend the 1996 Consent Judgment, except to make corrections and calculations of the figures. Mr. Guerrero also challenged the February 10, 2010 judgment awarding arrearages, attorney’s fees and court costs as a result of being held in contempt of court, alleging the trial court went beyond the scope of the motion to amend and the authority of La. C.C.P. art.1951. In Guerrero, supra, this Court held the portion of the February 26, 2009 judgment that amended the language of the Consent Judgment was final and was not properly before it because Mr. Guerrero failed to timely appeal the ruling. This Court further found the trial court’s amendment to the language of the Consent Judgment was within the scope of relief authorized by La. C.C.P. art.1951 and concluded the February 10, 2010 judgment was a valid judgment. The ruling from this Court became a final judgment once the supreme court denied Mr. Guerrero’s supervisory writ on October 21, 2011.

Mr. Guerrero’s claims in this appeal are now barred from relitigation. The February 26, 2009 and February 10, 2010 judgments are valid and final. Mr. Guerrero and Ms. Guerrero were the same parties previously involved in the matter. The claims Mr. Guerrero are advancing in this appeal existed at the time the February 26, 2009 and February 10, 2010 judgments became final. And, Mr. Guerrero’s claims arise out of whether the trial court could amend the language of the 1996 Consent Judgment and whether he should be held in contempt of court for Imhis failure to pay the arrearages owed to Ms. Guerrero. All of the requirements of res judicata are met in this matter.

Therefore, we sustain Ms. Guerrero’s Peremptory Exception of Res Judicata.

Answer to Appeal

Ms. Guerrero filed an Answer to this appeal on September 24, 2012, which was incorporated into her appellee’s brief. In the Answer, Ms. Guerrero requests the award of attorney’s fees and various court costs since the inception of these proceedings for the defense of a frivolous appeal. However, Ms. Guerrero’s Answer is deficient and is not properly before this Court. First, the Answer is deficient because it was set forth in the brief and not a pleading. Second, it failed to satisfy the time requirements of La. C.C.P. art. 2133 because it was filed more than fifteen days after the return date or date of lodging, whichever is later. Because of these deficiencies, the Answer filed by Ms. Guerrero will not be considered. See, Kelly v. Boise Bldg. Solutions, 11-1116, p. 5 (La.App. 3 Cir. 5/2/12); 92 So.3d 965, 969, writ denied, 12-1173 and 12-1209 (La.10/8/12); 98 So.3d 851. Without the filing of a properly filed answer to the appeal or the filing of her own notice of appeal, this Court is without authority to order the award Ms. Guerrero requests. See, Guerrero, 10-930 at 15; 65 So.3d at 745, citing Eckert v. Roux, 09-1016, p. 12 (La.App. 5 Cir. 3/23/10); 39 So.3d 636.

Therefore, Ms. Guerrero’s request for an award of attorney’s fees and court costs is denied.

]^DECREE

For the foregoing reasons, we sustain Ms. Guerrero’s Peremptory Exception of Res Judicata and find Mr. Guerrero’s claims in this appeal are barred from relit-igation. Additionally, we did not consider the claims raised in Ms. Guerrero’s Answer to this appeal. Mr. Guerrero is assessed the costs of this appeal.

PEREMPTORY EXCEPTION SUSTAINED

      . Although the Consent Judgment refers to the formula as the "Simms case formula,” it is actually the "Sims” case formula from Sims v. Sims, infra.

      . The Soldiers and Sailors Relief Act of 1940 was succeeded by the Servicemembers Civil Relief Act, 50 App. U.S.C. § 501 et seq.

      . It is assumed the trial court set the security bond at $70,000.00 to account for the arrear-ages owed by Mr. Guerrero to Ms. Guerrero. However, Mr. Guerrero alleges the trial court erred in setting that amount.

      . Mr. Guerrero only raises two assignments of error in his appeal. Additionally, he lists a third issue for review regarding the amount set for the appeal security bond. However, Mr. Guerrero fails to brief the issue of how the trial court erred, and we consider it abandoned. See, URCA, Rule 2-12.4. See also, In re Succession of Horn, 04-168, pp. 5-6 (La.App. 5 Cir. 6/29/04); 877 So.2d 1111, 1115, writ denied, 04-1954 (La. 11/19/04); 888 So.2d 199, where this Court held that restating an assigned error in brief without argument or citation of authority does not constitute briefing.

      .Ms. Guerrero filed a Peremptory Exception of Res Judicata in the trial court on January 30, 2012 in response to Mr. Guerrero’s Motion for Partial New Trial. The trial court did not render a ruling on the exception because Mr. Guerrero’s motion had previously been denied. In effect, the exception was moot.

      . While we are sustaining the exception of res judicata, we acknowledge the exceptions to the general rule of res judicata set forth in La. R.S. 13:4232, in particular, subsection B. After review, we find that none of the exceptions are applicable to the facts of this matter.


source: Caselaw Access Project

author: RANDOLPH, Justice,

license: Public Domain

text:
    Donald MITCHELL a/k/a Donald K. Mitchell v. STATE of Mississippi.
    No. 2011-KA-00684-SCT.
    Supreme Court of Mississippi.
    Jan. 31, 2013.
    Rehearing Denied April 25, 2013.
    Office of State Public Defender by George T. Holmes, Phillip Broadhead, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
   RANDOLPH, Justice,

for the Court:

¶ 1. Before the Court is a direct appeal of the conviction of Donald Mitchell for possession of cocaine with intent to distribute and his habitual-offender sentence. Finding that the trial court erred by admitting evidence of Mitchell’s prior convictions for possession of marijuana and cocaine, we reverse Mitchell’s conviction, vacate his sentence, and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 2. Detective Kevin Dear of the Jackson Police Department (“JPD”) received an anonymous call that a person known as “Black” was selling crack cocaine from a brick apartment complex on Capitol Street. Detective Dear identified Donald Mitchell as “Black,” conducted a preliminary investigation, and obtained a search warrant for the apartment.

¶ 3. JPD Sergeant Richard McGahey and other officers executed the search warrant. Upon entering the apartment, McGahey saw Mitchell run by and followed him into the bathroom, where he saw Mitchell shake a bag upside down, emptying its contents into the toilet. Mitchell then flushed the toilet, but McGahey was able to grab some of the substance before it all was flushed away. The substance later was sent to JPD’s laboratory and determined to be cocaine.

¶ 4. The officers searched Mitchell and found approximately $1,000 in cash and a small digital scale that appeared to have cocaine residue on it. They found another scale on the kitchen counter and additional stashes of cocaine around the apartment.

¶ 5. Mitchell was indicted as a habitual offender for possession of cocaine with intent to sell, based on previous convictions for possession of cocaine, possession of marijuana, and manslaughter.

¶ 6. Mitchell filed a motion in limine to exclude evidence of his prior convictions for possession of controlled substances from being admitted at trial. The trial court held a hearing, at which time the State asserted that it planned to offer evidence of the prior possession convictions to “show that he understands the drug game ... that’s just a prior bad act to show his involvement with drugs ... not to show that he did this, but just to show that he understands, ‘No, it’s not a mistake.’” The trial judge denied the motion in li-mine, paraphrasing language from Givens v. State, 967 So.2d 1 (Miss.2007), as follows:

When considering other crime evidence concerning drug activity and drugs being found in the possession of the defendant, as well as the fact that the police was familiar with the defendant because of the prior matters, probative value of the relevant evidence was not substantially outweighed by danger of unfair prejudice. And, thus, the trial judge did [not] abuse his discretion in allowing it.

¶ 7. During the testimony of its first witness, the State presented evidence of Mitchell’s prior possession convictions. Mitchell did not testify. The jury returned a verdict of guilty of possession of crack cocaine with intent to distribute, and Mitchell received a life sentence as a habitual offender.

ISSUES

¶ 8. Mitchell raises numerous issues, only one of which we address today, as it is dispositive:

Whether the trial court committed reversible error by admitting evidence of Mitchell’s prior convictions for possession of marijuana and cocaine.

DISCUSSION

I. Standard of review

¶ 9. We apply an abuse-of-discretion standard when reviewing a trial judge’s decision regarding the admission or exclusion of evidence. Hargett v. State, 62 So.3d 950 (Miss.2011).

II. The trial court committed reversible error by admitting evidence of Mitchell’s prior convictions for possession of controlled substances.

¶ 10. Mississippi Rule of Evidence 404(b) governs the admissibility of evidence of other crimes, wrongs, or acts. Under Rule 404(b), “evidence of a crime other than the one for which the accused is being tried generally will not be admissible.” Hargett v. State, 62 So.3d 950, 953 (Miss.2011) (citations omitted). However, “[e]vidence of a prior offense is admissible if offered, not to show the accused’s criminal tendencies, but to prove identity, knowledge, intent, common criminal scheme or plan, or absence of mistake”— none of which was contested in the case sub judice. White v. State, 842 So.2d 565, 573 (Miss.2003) (citation omitted). “The reason for the rule is to prevent the State from raising the inference that the accused has committed other crimes and is therefore likely to be guilty of the offense charged.” Id. (citations omitted).

¶ 11. We find that the evidence of Mitchell’s prior possession convictions satisfies none of the other purposes listed in the nonexclusive provisions of Rule 404(b). The State replied to Mitchell’s motion to exclude this evidence that it would offer the evidence to prove absence of mistake— an assertion never advanced by Mitchell, nor otherwise placed at issue by any witness. As mistake was not at issue, absence of mistake is a non sequitur. As we have recognized, “[t]he theory of the case can’t be we know he’s a drug dealer ... unless he alleges a mistake, there is no reason to prove absence of mistake.” Hargett, 62 So.3d at 953. As we previously have provided:

[vigorous prosecution does not require, and fairness does not permit, that one charged with an offense in this area be loaded with prejudicial irrelevancies. The commendable zeal of the District Attorney to convict those he believes guilty must never be allowed to blind either him or the courts to the necessity of affording every man a fair trial.

Hargett, 62 So.3d at 954 (quoting Sumrall v. State, 272 So.2d 917, 919 (Miss.1973)).

¶ 12. Having concluded that no other purpose would allow admission of the evidence of Mitchell’s prior convictions, we are left with the general rule that character evidence is not admissible to prove conduct on a particular occasion. Miss. R. Evid. 404. To allow a party to attempt to prove that a person acted in accordance with a certain character trait “is to prejudice the person, to render him in the eyes of jurors liable, not because of what he did or did not do in the instant case, but because of what he has done or failed to do in the past.” Miss. R. Evid. 404 cmt.

¶ 13. The trial court’s reliance on Givens v. State, 967 So.2d 1 (Miss.2007), was misplaced. At Givens’s trial, evidence of his prior bad acts was deemed admissible to reveal the complete picture of the crime of which he was charged. Police officers had responded to an anonymous call reporting drug activity at a certain location. Givens, 967 So.2d at 3. Upon arriving at the location, an officer spoke with Givens and another individual, Cooper, and searched the two men, finding two “nickel bags” of marijuana on Givens. Id. An officer gave Givens a ticket for possession of marijuana. Id. The officers also found a .22 pistol that Cooper claimed belonged to him under a nearby porch. Id, About fifteen minutes later, a police officer driving by the location found Cooper’s body on the side of the road, but Givens was gone. Id. At Givens’s trial for Cooper’s murder, the trial court admitted testimony that police officers had responded to an anonymous report of drug activity and had found marijuana in Givens’s possession. Id. at 8. This Court found that the testimony “was proper Rule 404(b) evidence because it told the jury ‘the whole story as to why ... police officers and a ... deputy sheriff went to the scene, where they happened upon Givens.” Id. at 9. In contrast, Mitchell’s possession convictions occurred years — not minutes — before the events for which Mitchell was on trial; prior possession convictions were not necessary to present the jury “the whole story” of how Mitchell came to be charged with possession with intent to distribute on the date alleged in the indictment. ■

CONCLUSION

¶ 14. We conclude that the trial court abused its discretion by allowing the admission of evidence of Mitchell’s prior possession convictions. As Mitchell was prejudiced by this inadmissible evidence, we reverse Mitchell’s conviction and vacate his sentence. The case is remanded to the Hinds County Circuit Court for a new trial consistent with this opinion.

¶ 15. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . Mitchell’s prior convictions were for possession of controlled substances — they were not, as the State’s brief asserts, for the "sale of cocaine and marijuana.”


author: COLEMAN, Justice,

text:
    SOUTHERN HEALTHCARE SERVICES, INC., Medforce Management, LLC d/b/a Willow Creek Retirement Center and Daleson Enterprises, LLC d/b/a Jones County Rest Home v. LLOYD’S OF LONDON a/k/a Underwriters at Lloyd’s of London and Certain Underwriters at Lloyd’s, London.
    No. 2011-CA-01833-SCT.
    Supreme Court of Mississippi.
    Feb. 21, 2013.
    Rehearing Denied April 25, 2013.

      David Mullin, Richard Biggs, Derek Andrew Henderson, attorneys for appellants.
    Richard O. Burson, Laurel, Peeler Gray-son Lacey, Jr., Shirley M. Moore, Laurel, attorneys for appellants.
   COLEMAN, Justice,

for the Court:

¶ 1 The insureds filed suit against their insurers in the Circuit Court for the First Judicial District of Jones County, claiming they were unaware their insurance policy had a $250,000 per-claim deductible and alleging that the insurer breached its insurance contract by refusing to provide a defense until the insureds paid the $250,000 deductible for each of five separate claims. The circuit court granted summary judgment for the insurers and the insureds appeal. We affirm the circuit court’s grant of summary judgment.

FACTUAL BACKGROUND

¶ 2 Daleson Enterprises, LLC (“Dale-son”) operated Jones County Rest Home in Ellisville. Medforce Management, LLC (“Medforce”) operated Willow Creek Retirement Center in Byram. Southern Healthcare Services, Inc. (“Southern Healthcare”) managed both Daleson and Medforce. Southern Healthcare purchased professional and general liability insurance from Lloyd’s of London (“Lloyd’s”) to cover Daleson, Medforce, and others. Southern Healthcare was the first named insured on the policy. Southern Healthcare, Daleson, and Medforce will be referred to collectively as the “Insureds.”

¶ 3 In 2001, a previous operator of Jones County Rest Home had purchased an insurance policy from Lloyd’s with a $25,000 deductible. An agent at Fox-Everett, Inc. facilitated the purchase. Daleson assumed the operation of Jones County Rest Home in 2002, and the Insureds asked the Fox-Everett agent to obtain an insurance policy similar to the one held by the previous operator. The Fox-Everett agent obtained a policy from Lloyd’s in October 2002, and the Insureds claim that they thought the policy was nearly identical to the policy the previous owner had in place. The Insureds contend the Fox-Everett agent informed them their new policy had a higher premium and lower policy limit. Otherwise, the Insureds believed their new policy was identical to the previous one. In fact, the policy had a $250,000 per-claim deductible. The Insureds claim Fox-Everett failed to inform them about the different deductible. They also claim they did not receive a copy of the policy until eleven months after the purchase. The policy was renewed in October 2003. Again, the Fox-Everett agent informed them that the premium was going up, but the Insureds claim the agent said nothing about the $250,000 deductible.

¶ 4 In 2003 and 2004, various plaintiffs filed five lawsuits against the Insureds. When each civil action arose, the Insureds notified Lloyd’s in accordance with the policy terms. Caronia Corporation (“Ca-ronia”) acted as the third-party administrator for Lloyd’s, and Caronia sent a reservation of rights (“ROR”) letter to the Insureds acknowledging receipt of each claim. Via the ROR letters, Caronia informed the Insureds that “Lloyd’s would not provide coverage under the policies until the $250,000 deductibles were paid in full.”

¶ 5 The ROR letters were standard communications that included claim information, acknowledged receipt of the lawsuit, stated that indemnification and defense would be provided, and set forth any issues that would not be covered under the policy or that would be defended under a reservation of rights. The letters provided the name and contact information of the attorneys Lloyd’s had hired to defend the Insureds. Each letter included the following language about the deductible:

As you are aware, Southern Healthcare Services, Inc., d/b/a Jones County Rest Home [Willow Creek Retirement Center] has a $250,000 deductible for each and every Professional Liability claim. Therefore, the first $250,000 of indemnity and/or claims related expenses will be paid directly by Southern Healthcare Services, Inc., d/b/a/ Jones County Rest Home [Willow Creek Retirement Center].

The Insureds claim they were “thunderstruck” by the above-quoted language regarding the operation of the deductible.

¶ 6 Caronia sent the ROR letters directly to the nursing homes, rather than to Southern Healthcare. Daleson and Med-force initially paid the attorneys directly until the dispute arose over the deductible. In early 2005, Daleson and Medforce filed for bankruptcy and stopped paying the defense attorneys. They claim they had no choice but to file for bankruptcy because they could not pay the total $1.25 million for the five claims. However, Southern Healthcare did not file for bankruptcy; as the first named insured, Southern Healthcare was the only entity actually responsible for paying the deductible. In March 2005, Lloyd’s or Caronia told the lawyers to continue defending and that they would pay the attorneys’ fees since the Insureds had filed for bankruptcy. A year later, none of the attorneys’ fees had been paid by Lloyd’s or Caronia, and the attorneys withdrew. Between December 2006 and August 2007, the defense attorneys were rehired. Lloyd’s paid the defense attorneys, and all five suits were settled.

PROCEDURAL HISTORY

¶7 In August 2006, the Insureds filed suit against Lloyd’s, Caronia, and Fox-Everett (collectively the “Insurers”) in the Circuit Court for the First Judicial District of Jones County. Against Lloyd’s, the Insureds alleged bréach of contract for failure to provide coverage and defense costs. Against both Lloyd’s and Caronia, they alleged fraud and breach of the duty of good faith and fair dealing for misrepresenting that the Insureds had to pay the deductibles in full before they were entitled to coverage. Against Fox-Everett, they asserted breach of contract, breach of fiduciary duty, negligent misrepresentation, and gross negligence for allegedly procuring the policy without informing the Insureds of the $250,000 deductible.

¶ 8 Lloyd’s counterclaimed, alleging breach of contract against Southern Healthcare and seeking a declaratory judgment that Southern Healthcare must pay the $250,000 deductible for each of the underlying suits. After settling the underlying claims, Lloyd’s moved for summary judgment on the Insureds’ claims against it and Caronia. Lloyd’s also moved for summary judgment on its counterclaim. The trial judge, Judge Robert G. Evans, found no issues of material fact and granted Lloyd’s summary judgment. The ruling required the Insureds to reimburse Lloyd’s in the amount of $701,153.54 for the costs of defense and settlement that fell within the per-claim deductible. Pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure, the trial judge entered a final judgment as to the Insureds’ claims against Lloyd’s and Caronia on March 26, 2008. The trial judge entered a final judgment as to Lloyd’s counterclaim against Southern Healthcare on July 11, 2008. The Insureds’ claims against Fox-Everett were not part of the summary judgment.

¶ 9 The Insureds appealed, and the case was assigned to the Court of Appeals. The Court of Appeals dismissed the appeal as improperly certified because the claims against Fox-Everett had not been disposed of, and it found those claims to be “intertwined” with the claims for damages. S. Healthcare Servs., Inc. v. Lloyd’s of London, 20 So.3d 84, 88 (¶ 14) (Miss.Ct.App.2009). The majority did not address the propriety of summary judgment. Four judges dissented, writing that the appeal should not have been dismissed because the claims against Fox-Everett were not relevant to the claims against Lloyd’s and Caronia and the appeal was properly before the court. Id. at 92 (¶¶ 33-34). In addition, the dissenting judges would have reversed the trial court’s grant of summary judgment and remanded for a trial on the merits. Id. at 99 (¶ 63).

¶ 10 On remand, the Insureds filed a motion to reconsider summary judgment. Judge Evans died before the motion could be considered, and Judge Joe N. Pigott was appointed as Special Judge to preside over the case. Judge Pigott scheduled a hearing on the motion to reconsider summary judgment and for a status conference on March 10, 2011. At the hearing, Judge Pigott vacated the summary judgments granted by Judge Evans, directed the parties to proceed with discovery, and set a trial date.

¶ 11 Following the March 10th hearing, the litigation continued as though all parties were again in the suit and proceeding to trial in September. At a hearing on a motion to compel discovery held on June 16, 2011, Judge Pigott did not remember vacating the summary judgments, and an order had not been entered vacating them. However, an order dated August 16, 2011, nunc pro tunc to March 10, 2011, is in the record.

¶ 12 On September 29, 2011, the parties were before Judge Pigott at a hearing on another motion to compel and a motion for leave to amend the complaint. At the hearing, Judge Pigott reinstated the grants of summary judgment in favor of Lloyd’s and Caronia, finding that they were never reversed and were still in effect. Judge Pigott said Fox-Everett was the only defendant left in the case, and the Insureds were to proceed to trial against Fox-Everett only. He denied the Insureds’ motion to amend the complaint, because the amendments pertained only to Lloyd’s. Judge Pigott entered new final judgments dismissing the Insureds’ claims against Lloyd’s and Caronia and dismissing Lloyd’s counterclaim against the Insureds. After entry of the final judgments, the Insureds filed multiple motions indicating they believed Judge Pigott did not allow their arguments into the record. The Insureds also filed a motion for a new trial, which the trial court denied. Meanwhile, the Insureds settled with Fox-Everett. The Insureds then appealed to this Court regarding Judge Pigott’s second, or reinstated, grants of summary judgment in favor of Lloyd’s and Caronia.

DISCUSSION

¶ 13 On appeal, the Insureds assert several arguments based on alleged procedural errors by the second trial judge, Judge Pigott. The Insureds’ motion to reconsider summary judgment should not have been granted, and because Judge Pigott later reinstated the original grants of summary judgment, the Insureds are in the same place they were when they first appealed in 2008.

¶ 14 “How a court treats a motion for reconsideration turns on the time at which the motion is served.” Carlisle v. Allen, 40 So.3d 1252, 1260 (¶ 33) (Miss.2010) (quoting Cannon v. Cannon, 571 So.2d 976, 978 n. 2 (Miss.1990)). If it is filed within ten days of entry of the judgment, it is considered a Rule 59(e) motion to alter or amend the judgment. Id. If it is filed more than ten days after the judgment is entered, it is considered a motion for relief under Rule 60(b). Id. The motion for reconsideration at issue did not state that it was brought under Rule 59, and it was filed two years after the motions for summary judgment were granted. Thus, it should have been considered a motion for relief under Rule 60(b). Rule 60(b) provides the following:

(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceeding was entered or taken....

Miss. R. Civ. P. 60(b). The motion at hand was filed more than six months after the final judgment was entered, so it could not have been based on reasons (1), (2), or (3). Id. The Insureds did not assert that the judgment was void or that it had been satisfied, released, or discharged subject to reasons (4) or (5). Id. Thus, the motion could have been granted only for “any other reason justifying relief’ under reason (6). Id. Regarding Rule 60(b)(6), this Court has explained:

“Relief under Rule 60(b)(6) is reserved for extraordinary and compelling circumstances,” and the rule is a “grand reservoir of equitable power to do justice in a particular case.” Briney v. U.S. Fid. & Guar. Co., 714 So.2d 962, 966 (Miss.1998). The determination of whether a Rule 60(b)(6) motion has been made within a reasonable time is considered on a case-by-ease basis. Miss. R. Civ. P. 60(b); Cucos, [Inc. v. McDaniel,] 938 So.2d [238,] 245 [ (Miss.2006) ]. The following factors are relevant in adjudicating a Rule 60(b)(6) motion:
(1) That final judgments should not lightly be disturbed; (2) that the Rule 60(b) motion is not to be used as a substitute for appeal; (3) that the rule should be liberally construed in order to achieve substantial justice; (4) whether the motion was made within a reasonable time; (5) [relevant only to default judgments]; (6) whether if the judgment was rendered after a trial on the merits — the movant had a fair opportunity to present his claim or defense; (7) whether there are intervening equities that would make it inequitable to grant relief; and (8) any other factors relevant to the justice of the judgment under attack.
M.A.S. v. Miss. Dep’t of Human Servs., 842 So.2d 527, 530 (Miss.2003) (citing Briney, 714 So.2d at 968).

Carpenter v. Berry, 58 So.3d 1158, 1162 (¶ 18) (Miss.2011). This Court has also said that “Rule 60(b) motions should be denied where they are merely an attempt to relitigate the case.” M.A.S. v. Miss. Dep’t of Human Servs., 842 So.2d 527, 530 (¶ 12) (Miss.2003) (quoting Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984)).

¶ 15 Of the factors relevant to this case, we emphasize that “final judgments should not lightly be disturbed” and that a “Rule 60(b) motion is not to be used as a substitute for appeal.” Carpenter, 58 So.3d at 1162 (¶ 18). We also consider the timeliness of the motion. The trial court’s original order granting summary judgment was entered on March 19, 2008. The Insureds’ motion to reconsider summary judgment was filed on July 13, 2010, more than two years later and after the case had been remanded. The Court of Appeals remanded the case for the sole purpose of adjudicating the claims against Fox-Everett, not to relitigate the summary judgment issues. The Insureds’ motion to reconsider summary judgment was procedurally improper, because the summary judgment issues should have been considered on appeal once it was properly before the Court of Appeals. Filing a motion to reconsider while the case was on remand was an attempt to relitigate the issues and circumvent the appeals process.

¶ 16 Taking into account the above-listed factors, as well as this Court’s rule that Rule 60(b) motions should not be used to relitigate cases, we find that the motion should not have been granted. Regardless, Judge Pigott later reversed his decision, reinstated the initial grants of summary judgment, and adopted the first judge’s findings of fact and conclusions of law. Any alleged procedural errors pertaining to the motion to reconsider -will not be considered by this Court because, ultimately, Judge Pigott did not consider that motion or any pleadings filed after that time. This Court will consider only the original summary judgment motions and supporting documents considered by the first trial judge prior to his granting summary judgment in 2008. There is no indication that Judge Pigott reviewed any additional evidence prior to entering the second final judgments that this Court would need to consider. The parties find themselves in the same position now that they were in when they appealed to the Court of Appeals, except the issues with Fox-Everett have been resolved, and that is where this Court will begin.

¶ 17 This Court has framed the issues as follows: (1) whether the trial court’s original grant of summary judgment on the Insureds’ claims against Lloyd’s was proper; and (2) whether the trial court’s original grant of summary judgment on Lloyd’s counterclaim was proper. Summary judgment is appropriate if “there is no genuine issue as to any material fact.” Miss. R. Civ. P. 56(c). A de novo standard of review is applied to a circuit court’s grant or denial of summary judgment. Kilhullen v. Kan. City S. Ry., 8 So.3d 168, 174 (¶ 14) (Miss.2009). This Court views the evidence “in the light most favorable to the party against whom the motion has been made.” Id. (quoting Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993)). However, the opposing party “may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial.” Miss. R. Civ. P. 56(e).

I. Whether the trial court’s grant of summary judgment on the In-. sureds’ claims against Lloyd’s and Caronia was proper.

¶ 18 The trial judge granted summary judgment in favor of Lloyd’s and Caronia, finding the two entities had performed their duties under the contract and no dispute of material fact existed. The Insureds were ordered to reimburse Lloyd’s in the amount of $701,153.54 for defense costs and settlements that fell within the per-claim deductible. The Insureds claim that summary judgment was not proper because Lloyd’s breached its duty of good faith and fair dealing by “conditioning coverage on prepayment of the deductible.”

A. Whether the Insureds were subject to the deductible.

¶ 19 First, the Court must determine if the terms of the deductible were clear and unambiguous, such that the Insureds were subject to the deductible. The law pertaining to interpretation and enforcement of insurance policies is well-established. Interpretation of an insurance policy presents a question of law, which the Court reviews de novo. Farmland Mut. Ins. Co. v. Scruggs, 886 So.2d 714, 717 (¶ 10) (Miss.2004). “[W]hen 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.” Noxubee County Sch. Dist. v. United Nat’l Ins. Co., 883 So.2d 1159, 1165 (¶ 13) (Miss.2004). Mere disagreement as to the meaning of a policy-provision does not render the policy ambiguous. U.S. Fid. & Guar. Co. of Miss. v. Martin, 998 So.2d 956, 963 (¶ 13) (Miss.2008). A policy, or provision therein, is ambiguous if it “can be logically interpreted in two or more ways.” Id. The policy must be considered as a whole, “considering] all relevant portions together.” J & W Foods Corp. v. State Farm Mut. Auto. Ins. Co., 723 So.2d 550, 552 (¶8) (Miss.1998).

¶ 20 Insurance policies are contracts, and where the terms of an insurance policy are ambiguous, the rules of contract interpretation and construction will be applied. Krebs v. Strange, 419 So.2d 178, 181 (Miss.1982). “The most basic principle of contract law is that contracts must be interpreted by objective, not subjective standards. A court must effect a determination of the meaning of the language used, not the ascertainment of some possible but unexpressed intent of the parties.” Simmons v. Bank of Miss., 593 So.2d 40, 42-43 (Miss.1992) (quoting Cherry v. Anthony, Gibbs, Sage, 501 So.2d 416, 419 (Miss.1987)). “[T]he intention of the parties to the insurance contract should be determined based upon what a reasonable person placed in the insured’s position would have understood the terms to mean.” J &W Foods, 723 So.2d at 552 (¶ 9). Ambiguities should be resolved in favor of the insured, the nondrafting party. Noxubee County, 883 So.2d at 1165 (¶ 13). “Exclusions and limitations on coverage are also construed in favor of the insured. Language in exclusionary clauses must be ‘clear and unmistakable,’ as those clauses are strictly interpreted. Nevertheless, ‘a court must refrain from altering or changing a policy where terms are unambiguous, despite resulting hardship on the insured.’ ” U.S. Fid. & Guar., 998 So.2d at 963 (¶ 13) (internal citations omitted).

¶21 Pursuant to the policy, the Insureds bore responsibility for a $250,000 deductible on any general or professional liability claim, and defense costs were to be included in that amount. Specific terms pertaining to the deductible were found throughout the policy. The following policy provisions relate to the duties of the insurer and the insured in the event of a claim:

In Consideration of the payment of the premium and in reliance upon the statements in the Application, which is attached hereto and made a part of this Policy, and upon the Declarations, we agree as follows[:]
I. INSURING AGREEMENT
We will pay those amounts that you are legally required to pay others as damages resulting from a medical incident arising out of professional services provided by any Insured....
In addition to our Limit of Insurance we will also pay defense costs. We have the right and duty to defend and appoint an attorney to defend any suit against an Insured for a covered claim, and we will:
1. Do so even if any of the charges of the claim are groundless, false[,] or fraudulent; and
2. Investigate and settle any claim or suit to the extent we believe is appropriate.

(Underline added; other emphasis in original.)

¶22 The Declarations Page provided that the limit of insurance for a general or professional liability claim was $500,000 per claim. Item 3 on the Declarations Page was titled “Deductible” in bold font and provided: “General Liability/Professional Liability: $250,000 each claim, Defense Costs included.” (Underline added.) The Declarations Page was signed by a representative of the Insureds. The insurance agreement was subject to the following relevant conditions:

VI. CONDITIONS
In addition to the GENERAL POLICY PROVISIONS AND CONDITIONS— Section III. CONDITIONS APPLICABLE TO ALL COVERAGE PARTS, the following Conditions apply to this Coverage Part:
B. Assistance and Cooperation
The Insured shall:
1. Cooperate with us in the investigation, settlement, or defense of the claim or suit; and
2. Assist us, upon our request, in the enforcement of any right against any person or organization which may be liable to the Insured because of injury or damage to which this insurance may also apply-

(Emphasis in original.) Endorsement Number 1 was attached to the front of the policy, and it provided:

Section V. DEDUCTIBLE of the HEALTHCARE PROFESSIONAL LIABILITY CLAIMS MADE COVERAGE PART FOR LONG TERM CARE FACILITIES is deleted in its entirety and replace[d] with the following:
V. DEDUCTIBLE
A. The First Named Insured shall be responsible for the deductible amount shown in the Declarations, WHICH DEDUCTIBLE AMOUNT SHALL BE IN ADDITION TO AND SHALL NOT ERODE THE APPLICABLE LIMITS OF INSURANCE SHOWN IN THE DECLARATIONS. Expenses we incur in the investigating and defending claims and suits are included in the deductible. The deductible applies to each medical incident ....
B. The deductible aggregate is the total amount of damages arising out of the deductibles for all occurrences during the policy period.
C. We may pay all or part of the deductible to settle a claim or suit. The First Named Insured agrees to repay us promptly after we notify the First Named Insured of the Settlement.

(Underline added; other emphasis in original.) Endorsement Number 1 was signed by a representative of the Insureds.

¶ 23 The Deductible Liability Insurance Endorsement included a schedule of the applicable deductibles, showing a $250,000 per-claim deductible for medical incidents. It included the following provision:

APPLICATION OF ENDORSEMENT

A. Our obligation under the Bodily Injury Liability, Property Damage Liability, Medical Expense!,] and Medical Incident Coverages to pay damages on your behalf applies only to the amount of damages in excess of any deductible amounts stated....
C. The terms of the insurance, including those with respect to:
1. Our right and duty to defend the Insured against any “suits” seeking those damages; and
2. Your duties in the event of an “oecurrence[,]” “claim[,]” “suit[,]” or “medical incident” apply irrespective of the application of the deductible amount.
D. We may pay any part or all of the deductible amount to effect settlement of any claim or “suit” and, upon notification of the action taken, you shall promptly reimburse us for such part of the deductible amount as has been paid by us.

(Underline added.) According to the terms set forth here, taken together and read as a whole, we find that the Insureds were subject to the deductible, and the Insurers’ duty to provide coverage for damages applied after the deductible was met. According to the Declarations, the deductible included defense costs. The Insurers had a duty to retain counsel and participate in the defense, but the Insurers’ duty to pay defense expenses did not arise until the deductible had been met.

¶ 24 The Insureds claim that, when they obtained the first policy from Lloyd’s, the Fox-Everett agent failed to tell them about the deductible. They also claim that they did not receive a copy of the policy until eleven months after purchasing it. They did, however, receive that copy prior to renewing the policy in 2003, and the 2003 policy is the one at issue. Therefore, even if the Insureds did not know about the deductible the first year, by the time they renewed the policy in 2003, they had a copy of it, and they should have known about the deductible before they renewed. In light of the numerous references to the deductible throughout the policy, with several pages referencing the deductible signed by the Insureds, the Insureds cannot argue that they were unaware of the deductible when they renewed the policy in 2003.

¶ 25 The Insureds may have signed the policy and endorsements without reading them, but failure to read the policy is not a valid reason for not knowing its contents. Under Mississippi law, “a contracting party is under a legal obligation to read a contract before signing it,” and “a person is charged with knowing the contents of any document that he executes.” Terminix Int’l, Inc. v. Rice, 904 So.2d 1051, 1056 (¶ 18) (Miss.2004) (internal citations omitted). Further, where one has a duty to read a contract before signing it, he will not “be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract.” Godfrey, Bassett & Kuykendall Architects, Ltd. v. Huntington Lumber & Supply Co., Inc., 584 So.2d 1254, 1257 (Miss.1991) (internal citations omitted). As a matter of law, we presume that the Insureds read the policy and saw the terms setting forth the $250,000 deductible. Therefore, the Insureds’ claim that they did not know of the deductible cannot stand. This Court will not reject or refuse to enforce certain policy terms simply because one party claims not to know of the terms. See Teminix, 904 So.2d at 1056 (¶ 18).

¶ 26 The policy at issue, taken as a whole, was unambiguous, and it subjected the Insureds to the $250,000 deductible. The deductible included defense costs. According to the express terms of the policy, the deductible had to be exhausted before the Insurers incurred responsibility for damages or were required to pay defense costs. The Insureds were not required to pay up-front the entire $250,000 for each claim, as they assert, but they had to pay defense costs and expenses as incurred. This is exactly what the Insurers explained in the ROR letters, and this is the premise under which the Insurers operated. We must now determine whether there were any genuine issues of material fact regarding the Insurers’ duties that should have precluded summary judgment.

B. Whether the Insurers fulfilled their duties under the contract.

¶ 27 The Insureds argue that the trial court’s grant of summary judgment was improper because Lloyd’s breached its contractual duties under the policy, as well as its fiduciary duties of good faith, fair dealing, and reasonable care by conditioning coverage on payment of the deductible.

¶ 28 An insurer has an absolute duty to defend those claims against the insured covered by the insurance policy. Moeller v. Am. Guar. & Liab. Ins. Co., 707 So.2d 1062, 1069 (Miss.1996). This Court has said the following about an insurer’s duty to defend:

In Mississippi, an insurance company’s duty to defend its insureds derives neither from common law nor statute, but rather from the provisions of its policy, that is, its insurance contract with its insured. It is a matter of contractual agreement. Absent a higher obligation created by statute, an insurance company’s duty to defend is neither greater nor broader than the duty to comply with its other contractual obligations. That is not to say an insurance company can ignore its duty to defend where it has agreed to defend its insureds for covered claims, and the allegations of a complaint reasonably bring a claim within the coverage of its policy. The duty of good faith and fair dealing attends all contracts interpreted under Mississippi law. See Miss.Code Ann. § 75-1-203; University of Southern Mississippi v. Williams, 891 So.2d 160, 170 (Miss.2004).
An insurance company’s duty to defend its insured is triggered when it becomes aware that a complaint has been filed which contains reasonable, plausible allegations of conduct covered by the policy. However, no duty to defend arises when the claims fall outside the policy’s coverage....

Baker Donelson Bearman & Caldwell, P.C. v. Muirhead, 920 So.2d 440, 450-51 (¶¶ 40-41) (Miss.2006) (internal citations omitted) (emphasis added). This Court recently summarized an insurer’s fiduciary duties as follows:

We consistently have held that an insurer must act in the best interest of the insured. In State Farm [Mutual Automobile Insurance Company v. Allstate Insurance Company, 255 So.2d 667 (Miss.1971) ], we held that State Farm “was under a solemn obligation to defend its insured, to negotiate and settle all claims made against its insured, first according to [the insured’s] best interest, and then, secondly, according to State Farm’s best interest.” State Farm, 255 So.2d at 669. We have said that “the insurer has a fiduciary duty to look after the insured’s interest at least to the same extent as its own,” and in evaluating a settlement offer, the insurer must “make a knowledgeable, hon-este,] and intelligent evaluation of the claim[.]” Hartford Accident & Indent. Co. v. Foster, 528 So.2d 255, 265 (Miss.1988)....
An insurer has a duty to protect the interests of its insured, “which includes the duty to settle claims within the policy limits on objectively reasonable terms.” Jordan v. U.S. Fid. & Guar. Co., 843 F.Supp. 164, 171 (S.D.Miss.1998) (citing Hartford, 528 So.2d at 282))....

Indent. Ins. Co. of N. Am. v. Guidant Mut. Ins. Co., 99 So.3d 142, 150-51 (¶¶ 23-24) (Miss.2012).

¶ 29 The Insureds rely on Baker Donel-son, Moeller, and similar cases to claim that the Insurers had an absolute duty to defend. First, the cases cannot be read in a vacuum. There is no indication that the policies in Baker Donelson or Moeller included a deductible, so the principles therein cannot be strictly applied without taking into account the terms of the specific policies at issue. Second, Baker Donel-son specifically says that the insurer’s duty to defend derives from the insurance policy. Baker Donelson, 920 So.2d at 450. According to the terms of the instant policy, the Insurers had a duty to retain counsel and participate in the defense, but the Insurers’ duty to pay for the defense did not arise until the Insureds exhausted the deductible.

¶ 30 As with any deductible, the insured is required to expend the amount of the deductible before coverage becomes available. An insurer’s duty to indemnify is not triggered until the deductible has been paid. And where the policy specifies that defense costs are included in the deductible, the insurer is not responsible for defense costs until the deductible has been paid. One treatise has explained insurance deductibles and self-insured retentions as follows:

In the absence of a statute or controlling policy language, the insurer’s duty to indemnify is excess over the sum of money that is owed by the insured— whether that sum of money is called a deductible or a retention. E.g., Hocker v. New Hampshire Ins. Co., 922 F.2d 1476, 1482 n. 4 (10th Cir.1991) (a “retained limit” is “in effect, a deductible”). The insurer does not cover that part of the loss. The same should be true with regard to the payment of defense costs unless the insurer has a duty to defend and such duty is triggered under the terms of the policy despite the existence of an unpaid deductible or retention.

Allan D. Windt, 3 Ins. Claims & Disputes § 11:31 (5th ed.2012). A deductible is, by definition, “the portion of the loss to be borne by the insured before the insurer becomes liable for payment.” Black’s Law Dictionary 185 (3d pocket ed.2006). The Fifth Circuit, applying Mississippi law, gave the following “common understanding of how deductibles operate in insurance policies”:

The purpose of a deductible is to shift some of the insurer’s risk (that is, covered risk) to the insured, which is accomplished by setting a limit on the value of covered losses below which the insurer is not obligated to pay. See 12 Couch on Ins.3d § 178:1 (“A provision commonly found in automobile collision policies is the so-called ‘deductible clause,’ whereby a stated sum is deductible from the amount for which the insurer would otherwise be liable.” (emphasis added)); see also Webster’s Third New International Dictionary 589 (1993) (defining a “deductible” as “a clause in an insurance policy relieving the insurer of responsibility for an initial specified small loss of the kind insured against.” (emphasis added)).

Penthouse Owners Ass’n, Inc. v. Certain Underwriters at Lloyds, London, 612 F.3d 388, 387 (5th Cir.2010).

¶ 31 Although deductibles and self-insured retentions (“SIR”) generally serve the same purpose — to shift a portion of the risk from the insurer to the insured — they are different creatures. Boston Gas Co. v. Century Indem. Co., 454 Mass. 337, 910 N.E.2d 290, 294 n. 8 (2009). A SIR is just what its name implies, a form of self insurance. With a SIR, the insured is usually responsible for its own defense until the SIR is exhausted. Id. (quoting A.D. Windt, 2 Ins. Claims & Disputes § 11:31, 11-495 (5th ed.2007)). Where a policy is subject to a SIR, the insurer is more like an excess insurer, and the insurer’s duty to defend and indemnify is not triggered until the SIR is exhausted. With a deductible, on the other hand, the insurer usually has a duty to defend upon receipt of notice of the claim. (However, in this case, the policy states that defense costs are included in the deductible. So the deductible here operates more like a SIR, and the Insurers have no duty to pay for the defense until the deductible is exhausted. Still, the Insurers have the option to pay for the defense and/or settle the claim, and then seek reimbursement from the insureds.)

¶ 32 The Insureds base much of their argument on appeal on the dissenting opinion from the Court of Appeals. The dissenting judges opined that the policy did not require “prepayment” of the deductible as a condition to providing a defense; they quoted the following policy terms in support of their position:

SUPPLEMENTARY PAYMENTS AND DEFENSE COSTS WITHIN THE LIMITS OF LIABILITY
Subject to the Deductible Liability Insurance Endorsement provisions of this policy, it is agreed that we will pay the following Supplementary Payments and Defense Costs, which will be included within, not in addition to and will erode the Limits of Liability of the policy.
A. all expenses incurred by us, all costs taxed against you in any suit defended by us ...
D. reasonable expenses incurred by you at our request in assisting us in the investigation or defense of any claim or suit, including actual loss of earnings;
E. all defense costs, which shall mean all costs of investigation, adjustment and defense of claims, including court costs, interest on judgments, premiums on bonds and legal fees arising directly from claims covered by this policy ... provided such claims expenses are incurred by or with our prior written permission.

(Underline added.) The dissent wrote, “This endorsement contains no provision requiring prepayment of the deductible as a condition for providing a defense to the Appellants, as required by the contract.” S. Healthcare, 20 So.3d at 95 (¶ 44) (Griffis, J., dissenting).

¶ 33 The dissenting judges and the Insureds may have misunderstood the ROR letters and thought the Insurers required “prepayment” of the entire deductible amount before the Insurers would do anything regarding the claims. If such were the case, then the dissent was correct. However, the Insureds were not required to pay the entire deductible amount up front. That is not required under the policy, and it was not required by the Insurers. However, the Insureds were required to pay costs and expenses on an ongoing basis, up to the point that the deductible was exhausted. The policy clearly says that the supplementary payments listed above, including defense costs, are “[sjubject to the Deductible Liability Insurance Endorsement,” which provides the $250,000 per-claim deductible. Further, full payment of the deductible was not a condition to the Insurers providing a defense, because the Insurers were involved in the defense, and they had the right to pay defense costs and settle the claim even if the deductible was not paid. It is clear from the terms above that the Insurers intended to participate in the defense. However, the attorneys’ fees would have to be paid by the Insureds up to the deductible amount.

¶ 34 The Deductible Liability Insurance Endorsement, under the “Application of Endorsement” section, provides that the Insurers’ obligation “applies only to the amount of damages in excess of any deductible amounts.” It also provides that the terms of the insurance with respect to the Insurers’ “right and duty to defend ... apply irrespective of the application of the deductible amount.” In its defense of a claim, the Insurer can “pay any part or all of the deductible amount” to settle a claim, but the Insureds must reimburse the Insurer for any part of the deductible amount the Insurer pays. The Insurer does have a duty to defend — according to Mississippi law and the policy at issue— but the Insureds must still pay attorneys’ fees up to the amount of the deductible.

¶ 35 Regarding the Deductible Liability Insurance Endorsement (set forth, supra, ¶ 23), the dissent implied that defense costs were not included in the deductible because the endorsement did not “define defense expenses as damages.” S. Healthcare, 20 So.3d at 95 (¶ 46) (Griffis, J., dissenting). The policy repeatedly states that defense costs are included in the deductible and that the amount the Insurers will pay for defense costs is subject to the deductible. The Insurers have a duty to be involved in the defense upon notice of the claim, but the Insurers are not required to pay defense costs until the deductible has been exhausted.

¶ 36 The Insurers did not breach any contractual or fiduciary duties to the Insureds. The Insurers did not deny coverage as the Insureds contend. The Insurers exercised their right to provide a defense while reserving their right to deny coverage for claims that may not be covered under the policy. The Insurers certainly have the right to provide a defense under a reservation of rights. See Moeller, 707 So.2d at 1069. They also exercised their right under the policy to advance part of the deductible amount to settle the claims. In fact, all of the claims were settled or dismissed between December 2006 and August 2007. Of the four claims that were settled, three were settled for less than the deductible amount.

¶ 37 The Insureds operated subject to the $250,000 per-claim deductible, and the Insureds were required to pay defense costs and expenses as they came due until they exhausted the deductible. The Insurers retained counsel and participated in the defense, ultimately settling all of the claims and advancing the settlement amounts. The Insurers did not breach any contractual or fiduciary duties, and the Insureds failed to show the existence of any genuine issues of material fact that should have precluded summary judgment.

C. Whether Lloyd’s breached its duties by failing to timely settle the Huffmaster claim.

¶ 38 The Insureds take specific exception to the Insurers’ handling of the Huffmaster claim. The Insurers argue that this claim was waived because the Insureds did not raise it in their original Complaint. The specific claim regarding the Huffmaster lawsuit was not in the original Complaint, and this Court will not consider claims raised for the first time on appeal, as those claims are procedurally barred. Fowler v. White, 85 So.3d 287, 293 (Miss.2012); Triplett v. Mayor and Bd. of Aldermen of Vicksburg, 758 So.2d 399, 401 (Miss.2000). However, arguably, the overarching claims of breach of contract and breach of the duty of good faith and fair dealing against the Insurers could encompass the specific claims pertaining to the Huffmaster suit.

¶ 39 Regardless, the issue is without merit. As discussed above, when a settlement offer is made within the policy limits, an insurer has a duty to “make a knowledgeable, honest[,] and intelligent evaluation of the claim.” Hartford, 528 So.2d at 265. However, if the insurer honestly believes the claim has no merit or that its insured is not liable, the insurer is not required to accept a settlement offer simply because it is within the policy limits. The following was said in the Hartford case:

The fact remains that there is nothing in this case supporting bad faith on the part of Hartford’s decision not to accept the offer of settlement. There can be no negligence or bad faith attributed to Hartford’s assessment of the settlement value of this case. Hartford made a realistic evaluation. The only asset of Sims’s case was the dreadful injury to his arm. No insurance company should be faulted, however, regardless of the plaintiffs injuries, for not paying a claim when it has every reason to believe its insured was not at fault. In so doing it may upon occasion lose (as Hartford did here), but this is a far more salutary practice than encouraging insurance companies to pay off every dubious claim in which the injuries happen to be serious. Of course, a serious question of liability coupled with serious injuries is an entirely different matter. This certainly is not this case.

Hartford, 528 So.2d at 266 (emphasis in original).

¶ 40 The Huffmaster claim arose in 2003. In mid to late 2004, defense counsel had an indication that Huffmas-ter’s attorneys were “motivated to settle,” and she recommended making a settlement offer. The Insurers asked what “a good opening offer” would be, and counsel recommended that the Insurers offer $150,000 in addition to the $250,000 deductible, which the Insureds were willing to contribute. No evidence exists that Huffmaster made a settlement demand, or that talks of settlement went beyond these discussions at that time. Likewise, no evidence exists that the Insurers did anything less than required in regard to an honest, knowledgeable, and intelligent evaluation of the claim. Although the Insurers acknowledged the defense attorney’s venue concerns, they apparently found the Huff-master case to have very little merit. The case ultimately settled for $172,640.64, which was below the discussed settlement amount of $400,000. There is no evidence that the Insurers breached any duty in failing to settle that claim at an earlier time.

¶ 41 The Insureds have failed to show the existence of genuine issues of material fact that should be reserved for a jury. First, the policy was unambiguous, and the Insureds were subject to the $250,000 per-claim deductible, which included defense costs. Second, the Insurers did not breach any contractual or fiduciary duties; they retained counsel, participated in the defense, settled all of the claims after the Insureds stopped paying defense costs, and advanced the settlement amounts. The trial court did not err in granting summary judgment in favor or Lloyd’s and Caronia as to all of the Insureds’ claims against them.

II. Whether the trial court’s grant of summary judgment on Lloyd’s counterclaim was proper.

¶ 42 The Insureds claim that summary judgment in favor of Lloyd’s on Lloyd’s counterclaim was not proper because the Insureds were discharged from liability by Lloyd’s breach of contract, and/or the counterclaim was barred by Lloyd’s fraud, bad faith, and gross negligence. As discussed in the previous section, the Insurers did not breach any duties owed to the Insureds. Likewise, there was no fraud or gross negligence. The Insureds’ claims in this regard are wholly -without merit. Therefore, no conduct by the Insurers served to discharge the Insureds from any responsibility. The Insureds are bound by the contract, and they must pay the amount of the deductible owed for each claim according to the terms of the policy. The trial judge did not err in granting summary judgment in favor of Lloyd’s on its counterclaim, and the Insureds owe Lloyd’s $701,153.54 for the amount Lloyd’s expended in the defense and settlement of the claims that fell within the deductible.

CONCLUSION

¶ 43 The language in the insurance policy pertaining to the $250,000 per-claim deductible was clear and unambiguous. The Insurers did not deny a defense or coverage to the Insureds. Rather, the Insurers required the Insureds to pay the $250,000 deductible amount, which included defense costs, as required by the policy. The Insurers fulfilled their duties under the policy. We find no genuine issue of material fact that should have precluded summary judgment. We affirm the trial court’s grant of summary judgment in the Insurers’ favor on both the Insureds’ claims and Lloyd’s counterclaim.

¶ 44 AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE, AND KING, JJ., CONCUR.

      . Southern Healthcare Services, Inc. is the entity listed under "Name and mailing address of the Insured” on the declarations page of the policy. Endorsement Number 3 indicates that the policy was issued to Southern Healthcare and lists other entities as additional insureds. Endorsement Number 4 also indicates that the policy was issued to Southern Healthcare and lists other entities, including Daleson and Medforce, as premises covered under the policy. The deductible endorsement provides, "The First Named Insured shall be responsible for the deductible amount shown in the Declarations.” Southern Healthcare, as the only named insured on the policy, was the entity responsible for paying the deductible.

      . In his order granting summary judgment, Judge Pigott explained that "by vacating the final judgments and orders granting both motions for summary judgment, this [cjourt effectively took both motions under advisement." Then, after extensively reviewing the court file and transcripts of the hearings, Judge Pigott determined that the granting of both motions had been proper. As support for granting the motions (or reinstating the prior grant of summary judgment), • he adopted and incorporated Judge Evans's findings of facts and conclusions of law.

      . Generally, "[judicial review and interpretation of a contract involves a three-step analysis.” Epperson v. SOUTHBank, 93 So.3d 10, 16 (¶ 16) (Miss.2012) (internal citations omitted). In a summary judgment case, however, it is not necessary for the Court to go through the entire analysis. “[T]he reviewing Court need not go through the entire three-step analysis; the Court should determine only whether the contract is ambiguous.” Id. at 17 (¶ 20). If the Court finds the contract to be ambiguous, "the case must be submitted to the trier of fact, and summary judgment is not appropriate.” Id.

      . An almost identical provision was included pertaining to the Healthcare General Liability Claims Made Coverage.

      . The Insureds do not claim that the deductible was unconscionable or that they signed the contract under duress, nor do they assert any other defense except that they simply did not know about the deductible.

      . Notably, the Insureds did not allege negligence against Lloyd's.