author: CARLTON, J.,

text:
    Marvin TITUS a/k/a M.T., Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-00927-COA
    Court of Appeals of Mississippi.
    03/14/2017

      OFFICE OF STATE PUBLIC DEFENDER BY: BENJAMIN ALLEN SU-BER, ATTORNEY FOR APPELLANT
    . OFFICE OF THE ATTORNEY GENERAL BY: LAURA. HOGAN TEDDER, ATTORNEY FOR .APPELLEE
    BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.
   CARLTON, J.,

FOR THE COURT:

¶ 1. A jury found Marvin Titus guilty of deliberate-design murder and the display of a firearm during the commission of’the murder. See Miss. Code Ann. § 97-3-19(1)(a) (Rev. 2014); Miss. Code Ann. § 97-37-37(1) (Rev. 2014). On appeal from his conviction and sentences, Titus argues that the circuit court erroneously denied his motion for a new trial because the verdict was against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS

¶ 2. At .1:09 a.m. on January 18, 2013, Raymond Vicks placed a 911 call to the Greenville Police Department to report a shooting. Vicks testified that he was at home asleep when someone knocked on his door. Although Vicks was ■ initially reluctant to open the door, he testified that the person knocked again and called out. his name. Vicks further stated that the person identified himself as Chris Walls, a friend who lived seven or eight houses down from Vicks’s home. Vicks opened the door and then caught Walls as Walls fell to the ground. Vicks testified that Walls stated, “[TJhey shot me, they shot me .... ”

¶ 3. According to Vicks, Walls had blood shooting out of his arm from a bullet wound. After emergency personnel arrived and transported Walls to the hospital, Vicks cleaned up the blood on his front porch. He then went to the hospital to check on Walls’s condition. On his way to the hospital, Vicks testified that he called Stanley Parnell and asked Parnell to inform Walls’s mother of the shooting. When he arrived at the hospital, however, Vicks did not see Walls’s mother. As a result, he left the hospital to inform her of the shooting.

¶4. Upon returning to the hospital, Vicks encountered Titus and Parnell. Vicks testified that, as he walked through the hospital door, Titus asked whether Walls had identified his shooter. At the time of the shooting, Titus was staying at Walls’s house. Although Walls had previously kicked Titus out of his house, Vicks testified that Walls always allowed Titus to return. Vicks testified that Walls regularly sold drugs out of the house and that Walls once kicked Titus-out of the house for selling bad.drugs to .someone. Vicks stated that people sometimes arrived to purchase drugs while Walls was away and that Titus, pretending to be Walls, would conduct the transaction but would sell the purchasers fake drugs.

¶ 5. Vicks further testified that he spent time- at Walls’s house the day before the shooting and visited with Walls; Titus, and Parnell. Vicks testified that he stayed until a little before 2:45 p.m., when his children got out of school. Vicks said that he observed nothing unusual between Titus and Walls while he was hanging out with them.

¶ 6. In .response to Vicks’s 911 call, law-enforcement officers arrived on the scene. Sergeant Maricus Hibbler testified that he arrived at Vicks’s home and observed Walls lying on the front porch and wailing in pain. According to Sergeant Hibbler’s testimony, Walls slipped in and out of consciousness and was unable to answer questions about who shot him. Sergeant Hib-bler further stated that the porch where Walls had lain was completely covered in blood as though “someone had grabbed a bucket, and just [thrown] blood” on the area.

¶ 7. Sergeant Hibbler and Investigator Steven- O’Neal, each testified that they followed the blood trail from Vicks’s -front porch and discovered a blood-stained coat and cell phone. Investigator O’Neal-testified that there was an entrance and exit hole in the right arm of the coat. Sergeant Hibbler and Investigator O’Neal both stated that the blood trail ended at Walls’s home, where Investigator O’Neal observed a pool of blood, at the rear of Walls’s white Cadillac. Sergeant Hibbler also testified that the Cadillac had two broken driver’s side windows, a bullet hole in the rear driver’s side door, and blood on the rear of the vehicle. Although investigator O’Neal searched for further evidence, he stated that he was unable to find a gun, shell casings, or any more blood outside Walls’s home.

118. While standing at the rear of the Cadillac, Investigator O’Neal testified that Titus walked over from the front of Walls’s home. Titus said that he had been inside the house washing clothes when he heard ^gunshots. However, Titus further told Investigator O’Neal that he did not think ' anything of the shots until he saw the blue police lights outside the house. Titus then walked away, and Investigator O’Neal continued to search for additional evidence.

¶ 9, On cross-examination, Investigator O’Neal admitted that law enforcement felled to -.discover any physical evidence during the .course of their investigation to connect Titus to Walls’s.shooting. The gunshot-residue kit that law enforcement performed on Titus after the shooting failed ,to find any sign of gunshot residue on Titus’s skin. According to Investigator O’Neal, however, the negative result did not foreclose the possibility that Titus had shot Walls. Investigator O’Neal testified that Walls was shot around 1 a.m. on January 18, 2013, but that the gunshot-residue kit performed on Titus occurred hours later around lunchtime. Investigator O’Neal testified, therefore, that Titus could have had time to wash his hands and perhaps remove any trace of gunshot .residue. In addition to the negative gunshot-residue test, Investigator O’Neal confirmed that a search of the room Titus occupied at Walls’s home revealed nothing to link Titus to the shooting.

¶ 10. According to Investigator O’Neal, law-enforcement officers were unable to initially develop any suspect in Walls’s shooting. However, about two months after the shooting, a correctional officer at the regional jail facility contacted the Green-ville Police Department. The correctional officer reported that an inmate, Stephanie Moudy, wished to speak to an investigator about the case. As a result, two investigators visited’ Moudy and obtained her statement.

¶ 11. According to Moud/s trial testimony, she had known both Walls and Titus for a number of years. Moudy admitted that she was a drug addict and had bought drugs from both men. Moudy stated that she went to see Walls the morning of the shooting to get drugs from him. Moudy further testified that Walls was getting ready for work when she arrived. Although she did not have any money to purchase drugs, Moundy testified that she convinced Walls to give her drugs in exchange for sexual favors. Before she and Walls could complete their transaction, however, someone knocked on the door. Walls asked who it was, and the person identified himself as “M.T.” Moudy testified that “M.T.” was Titus’s nickname. She further testified that she was very familiar with Titus’s voice because she had known him so long, and she stated that she recognized the voice as his.

¶ 12. Moudy stated that Walls asked her to step behind a door leading to another part of the house. She did so, and then she heard Walls let the newcomer into his bedroom. Moudy testified that she heard Walls talking to the newcomer, whom she recognized as Titus by the sound of his voice. Moudy stated that Titus wanted Walls to give him some drugs to sell. However, Moudy said that Walls refused, and the men’s conversation became louder. Moudy testified that she then heard sounds of a struggle and a gunshot. She further testified that she heard the dpor leading out of the house open and close followed by two more shots outside the house.

¶ 13. Moudy stated that she then heard stuff in Walls’s room being moved around but that she did not actually see the person who was inside the bedroom. Moudy testified that she managed to escape Walls’s house and return to the home where she lived with her boyfriend, Willie Shanklin. Moudy climbed in her house through a window and then hid in the bedroom closet. She testified that she was scared to death and began crying. Shank-lin, who was asleep in the bedroom, heard Moudy crying and came to check on her. Moudy said that she told Shanklin what she had heard, and he advised her not to tell anyone about the shooting.

¶ 14. Moudy further testified that she was sanctioned by the drug court a few days after the shooting and 'was in jail when she saw Walls’s son on television. Moudy testified that she knew Walls’s son and felt that she had to reveal what she knew about the shooting if she wanted to stay drug free. As á result, Moudy asked one of the jailers to contact the detective on Walls’s ease so she could make a statement.

¶ 15. Despite Moudy’s statement that she heard a struggle and a gunshot fired inside Walls’s bedroom, Investigator O’Neal testified that he saw no evidence of blood when he searched the room. Instead, Investigator O’Neal testified that Walls’s blood trail appeared to begin outside the house at the rear of the Cadillac. Dr. Lisa Funte from the Mississippi Medical Examiner’s Office testified as an expert in forensic pathology. Dr. Funte explained that it was possible for Walls to be shot inside the house but to not lose any blood until he reached the outside of the house.

¶ 16. Based on gunshot-residue injuries found on Walls’s face, Dr. Funte concluded that Walls was shot from a range of six inches to four feet. Dr. Funte further testified that Walls suffered a gunshot to his right arm, which transected his brachial artery. According to Dr. Funte, even if Walls had been shot inside his bedroom, he may not have started bleeding until he exited his home. On direct examination, Dr. Funte explained two possible hypothetical theories:

When you have muscular arteries injured such as in this gunshot wound where the [bullet] transected, that artery, there is a reflex that occurs in that artery where the artery constricts[,] preventing blood flow, and it’s a response of your body to prevent you hopefully from bleeding to death.
It lasts a transient amount of time. It varies from individual to individual. It varies from injury -to injury. So [Walls] may have been shot, [but due to] the constriction of that brachial artery upon the initial injuryf,] he may not have seen blood flow for a short period of time.
So it’s possible if he were shot in the house there would be plenty of time for ■ him to get outside before he started to bleed in any significant manner.
Now, if he were wearing a shirt or there was a sleeve or something on the arm, the blood is [going to] soak into that, it’s [going to] get redistributed.... [H]e may not bleed in the house at all: ■ He may not even bleed for quite a while outside of the house. Blood may not leave the clothing for quite a while.

¶ 17. During the State’s case-in-chief, the jury also heard testimony from Christopher Dunn, who grew up with both Walls and Titus. Like Moudy, Dunn testified that “M,T.” was Titus’s nickname. Dunn stated that, after Walls’s shooting, Titus revealed that he had been involved in a shootout with Jerry Jakewell and that Walls might have accidentally been hit during thé shootout. Following Titus’s' alleged revelation, Dunn stated that he simply walked away because he did not want to get involved. Dunn further testified, however, that he had previously seen Titus with a gun in his possession.

¶ 18. The State next called Monica Brown as a witness. Brown testified that she and Titus dated for about three years and that, during that time, they sometimes lived together. Brown testified that, at the time of the shooting, she was in Memphis, Tennessee. Although Titus had been living with her for several months, Brown testified that she did not allow him to stay at her house when she was out of town. As a result, Titus stayed at Walls’s house. -

¶ 19. According to Brown, Titus told her during a March 2013 telephone conversation that he was involved in a shootout on the day of Walls’s shooting. Brown testified that Titus said he was sitting outside Walls’s house when a car with Jakewell and another person drove by. Brown testified that Titus told her the car turned around and that the occupants began shooting at him. Brown further stated that Titus said he returned gunfire and that Walls came outside during the exchange. Although Walls hid behind his Cadillac, Brown testified that Titus said he did not know whether one of his bullets or one of the other men’s bullets hit Walls. Brown further testified’ that she had known Titus to carry a gun and that it was not unusual for him to have a weapon in his possession.

¶20. Despite testimony by Dunn and Brown that Titus stated he was iñ a shootout with Jakewell on the day of Walls’s shooting, Jakewell denied any such allegations. Jakewell testified that he was shot three times at close range in June 2012 and remained hospitalized until the end of August 2012. Even after returning home, Jakewell 'testified that the severity of his injuries confined him to bed rest until February or March 2013. He further testified that he received at-home assistance during the time he was confined to bed rest. .Jakewell therefore testified that he was unable to participate in a shootout on the day of Walls’s death in January 2013 and that he was at home asleep when Walls was shot.

¶ 21. In addition to giving instructions on murder, the circuit, court instructed the jury on the lesser-included offense of manslaughter, After considering the evidence and trial testimony, however, the jury found Titus -guilty of both deliberate-design murder and a firearm enhancement. The circuit court then sentenced Titus as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015) to life imprisonment for the murder conviction and to a consecutive ten-year term for the firearm enhancement, with both sen-, tences to be served in the custody of the Mississippi Department of Corrections. Titus filed an unsuccessful motion for a judg- ' ment notwithstanding the. verdict or, in the alternative, a new trial. Aggrieved by the circuit court’s denial of his motion for a new trial, Titus appeals.

DISCUSSION

¶ 22., On appeal, Titus argues that the State failed to prove beyond a reasonable doubt that he murdered Walls. He asserts that no physical evidence connected him to the crime and that the testimony of the State’s main witness, Moudy, was contradictory and was insufficient to establish that he committed the crime. Contending that his murder conviction was clearly against the overwhelming weight of the evidence, Titus asks this Court to reverse his conviction and to remand the case for a new trial.

¶ 23. With regard to an appellate court’s review of new-trial motions, the Mississippi Supreme Court has explained:

The standard of review on a motion for a new trial is abuse of discretion. But a jury’s verdict is given great deference by [an appellate court], and conflicts of evidence presented at trial are to be resolved by the jury. [An appellate court’s] role of reviewing a challenge to the weight of the evidence is that of a thirteenth juror. Nevertheless, the evidence reviewed ought to be weighed in the light most favorable to the verdict. A new trial may be granted where the verdict is against the overwhelming weight of the evidence, or when the jury has been confused by faulty instructions, or when the jury has departed from its oath and its verdict is a result of bias, passion, and prejudice. [An appellate court], when reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, only 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. To meet the unconscionable[-]injustice standard, the verdict must shock the conscience or rest on a complete lack of evidence.

Dependable Abrasives Inc. v. Pierce, 156 So.3d 891, 895 (¶ 12) (Miss. 2015) (internal citations and quotation marks omitted).

¶ 24, Titus was charged with murder under section 97-3-19(l)(a), which states that “(t]he killing of a human being without the authority of law by any means or in any manner shall be murder ... [w]hen done with deliberate design to effect the death of the person killed, or of any human being ....” To convict Titus of Walls’s murder, the State had to prove that Titus: (1) killed Walls; (2) without the authority of law; and (3) with deliberate design to effect Walls’s death. See Beasley v. State, 136 So.3d 393, 402 (¶ 30) (Miss. 2014). Because Titus never confessed to the crime and there were no eyewitnesses to the shooting, the State presented circumstantial evidence to establish its case. Our supreme court has clearly provided that “direct evidence is unnecessary to support a conviction so long as sufficient circumstantial evidence exists to establish guilt beyond a reasonable doubt.” Underwood v. State, 708 So.2d 18, 35 (¶ 49) (Miss. 1998) (citation omitted).

¶25. Although Titus argues on appeal that Moudy’s testimony was inconsistent and lacked credibility, we recognize' that “[t]hé jury is the final arbiter of a witness’s credibility” and “weighs the weight and worth of any conflicting testimony.” Williams v. State, 794 So.2d 1019, 1028 (¶ 59) (Miss. 2001) (citations omitted). Furthermore, our caselaw provides that “[t]he jury is free to-draw all reasonable inferences [from witness testimony], and an appellate court will not review which of any possible inferences was the most reasonable.” Pryor v. State, 771 So.2d 958, 960 (¶ 9) (Miss. Ct. App. 2000) (citation omitted).

¶ 26. The record reflects that Titus was staying at Walls’s home at the time of the shooting. Although Vicks testified that he had visited with Walls and Titus the day before the shooting and had witnessed no animosity .between .them, Vicks- also stated that. Walls had previously kicked Titus out of the house on multiple occasions. - . ;■

¶ 27. In' addition to Moudy, both Dunn and Brown testified that Titus went by the nickname “M.T.” and was known to sometimes have a gun . in his possession. Dunn and Brown further testified that Titus revealed to them, on separate occasions, that he had been involved in a shootout outside Walls’s home on the day of Walls’s death and may have -accidentally shot Walls. ' Brown stated that Titus said Walls came outside during the shootout and tried, to hide behind his car. However, both Dunn and Brown testified that Titus was unsure whether- a bullet may have hit Walls during the exchange of gunfire.

■¶ 28. Although Brown and Dunn testified that Titus claimed he may have hit Walls during a shootout,.Investigator O’Neal testified that .Titus told him that he (Titus) was inside the house washing clothes when he heard gunshots. The State attempted to establish through Moudy’s testimony, however, that both of these stories were false and that Titus shot Walls- while fighting over, drugs. Moudy testified that, just prior to-Walls’s shooting,, she-went to his house to obtain drugs. -Before she -completed her transaction with-Walls, Moudy stated that someone knocked on the. door. Moudy testified..that the person identified himself ,as “M.T./’ which she knew was Titus’s nickname. Moudy further testified that she recognized the newcomer to be Titus- by the sound of his voice. According to Mou-dy, she knew both - Walls and Titus well, and she testified that she was very familiar with the sound of Titus’s voice.

■ ¶ 29. While standing behind a door from Walls’s bedroom, Moudy testified that she overheard Titus ask Walls for drugs to sell. Moudy further stated that the men’s conversation escalated—their voices grew louder, a struggle ensued, and she heard a gunshot fired from inside the bedroom. Moudy then testified that she heard the door to the outside of the home open and close, followed by two more gunshots outside the home.

¶30. Investigator O’Neal testified that, upon following a trail of blood from Vicks’s front porch to Walls’s home, he observed a pool of blood at the rear of Walls’s Cadillac. The Cadillac had two broken driver’s side windows, a bullet hole in the rear driver’s side door, and blood on the rear of the vehicle. Investigator O’Neal stated, however, that he found no sign of a gun, shell casings, or other blood outside Walls’s home. In addition, he testified that he saw no evidence of blood or bullet holes inside Walls’s room. ■

¶31. A test performed several hours after the shooting failed to find any gunshot residue on Titus’s skin. According to Investigator O’Neal, this negative result did not foreclose the possibility that Titus had shot Walls. Investigator O’Neal testified that Walls was shot around 1 a.m. on January 18, 2013, and that the gunshot-residue kit performed on Titus occurred several hours later around lunchtime. Investigator O’Neal testified that Titus could have had time to wash his hands and- attempt to remove any trace of gunshot residue. In addition to the negative gunshot-residue test, Investigator O’Neal testified that a search of the room Titus occupied at Walls’s home likewise failed to réveal evidence to connect Titus to the crime. Investigator O’Neal further stated, though, that he had investigated other cases where the search of a suspect’s room failed to disclose any relevant evidence.

¶ 32. Upon review of the circuit court’s denial of Titus’s motion for a new trial, we find no abuse of discretion. See Dependable Abrasives, 156 So.3d at 895 (¶ 12). After hearing all the evidence and testimony presented, and after receiving instruction on both murder and the lesser-included offense of manslaughter, the jury found Titus guilty. As previously discussed, the jury determines the credibility of witness testimony and is free to draw all reasonable inferences from the testimony. Williams, 794 So.2d at 1028 (¶ 59); Pryor, 771 So.2d at 960 (¶ 9). Viewing the evidence in the light most favorable to the verdict, we cannot find that the jury’s verdict was “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Dependable Abrasives, 156 So.3d at 895 (¶ 12) (citation omitted). We therefore find that this assignment of error lacks merit.

¶33. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE AS A HABITUAL OFFENDER OF LIFE WITHOUT ELIGIBILITY FOR PAROLE, FOLLOWED BY A CONSECUTIVE TEN-YEAR FIREARM-ENHANCEMENT Sentence, all in the custody OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

LEE, C. J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ„ CONCUR.


source: Caselaw Access Project

author: IRVING, P.J.,

license: Public Domain

text:
    Contenna WALKER, Appellant v. DAVITA HEALTH CARE PARTNERS, INC., DaVita Kidney Care, and Patricia Thompkins, Appellees
    NO. 2015-CA-01721-COA
    Court of Appeals of Mississippi.
    03/14/2017
    ATTORNEY FOR APPELLANT: HIAWATHA NORTHINGTON II
    ATTORNEYS FOR APPELLEES: SCOTT W. PEDIGO, NAKIMULI ONI DAVIS-PRIMER
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   IRVING, P.J.,

FOR THE COURT:

¶ 1. Contenna Walker appeals the judgment of the Madison County Circuit Court, dismissing her complaint against DaVita Health Care Partners, Inc., DaVita Kidney Care, and Patricia Thompkins (Appellees), arguing that the court erred in granting the Appellees’ Mississippi Rule of Civil Procedure 12(b)(6) motion to dismiss.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. In 2009, Walker began working for DaVita Health Care as a registered nurse. She alleges that in August - 2012, Patricia Thompkins, her supervisor, asked her to refute allegations that Thompkins had improperly disseminated personal information about other DaVita Health Care employees. Walker claims that she refused to do so and was bullied, humiliated, and threatened by Thompkins over the next couple of months. In addition, she alleges that she was subjected to verbal and written criticism by Thompkins for her exposure of Thompkins’s “improper work behavior." On or about October 12, 2012, Walker received notice from Thompkins that Walker was being terminated.

¶ 4. On January 7, 2015, Walker filed a complaint in the Hinds County Circuit Court alleging negligent and/or intentional infliction of emotional distress. On March 31, 2015, she amended her complaint to include the ground of wrongful termination. On July 31, 2015, the court granted DaVita Health’s motion to transfer venue to Madison County. Davita Health then filed a motion to dismiss Walker’s complaint pursuant to Rule 12(b)(6). The court found that all of Walker’s claims failed as a matter of law and granted DaVita Health’s motion to dismiss. This appeal followed.

DISCUSSION _

¶ 5. “A motion under Rule 12(b)(6) tests the legal sufficiency of the complaint. In order to grant this motion[,] there must appear to a certainty that the plaintiff is entitled to no relief under any set of facts that could be prove[n] in support of the claim.” Fortenberry v. City of Hattiesburg, 758 So.2d 1023, 1026 (¶ 12) (Miss. Ct. App. 2000). “A Rule 12(b)(6) motion to dismiss must be decided on the face of the pleadings alone.” Williams v. Mueller Copper Tube Co., 149 So.3d 527, 529 (¶ 3) (Miss. Ct. App. 2014).

¶ 6. Walker argues that her complaint should not have been dismissed because she sufficiently pled her wrongful-termination claim, citing the public-policy exception: to the employment-at-will doctrine set out by the Mississippi Supreme Court in McArn v. Allied Bruce-Terminix Co., 626 So.2d 603, 607 (Miss. 1993). Generally, “[i]n Mississippi—when there is no written employment contractr-the employment relationship is at-will, which means that an employee may be discharged at the employer’s will for good reason, bad reason, or no reason at all, excepting only reasons independently declared legally impermissible.” Galle v. Isle of Capri Casinos, Inc., 180 So.3d 619, 622 (¶ 13) (Miss. 2015) (internal quotations omitted). However, the, supreme court established a narrow exception in McArn, outlined as follows:

[T]here should be in at least two circumstances, a narrow public policy exception to the employment at will doctrine and this should be so whether there is a written contract or not; (1) an employee who refuses to participate in an illegal act ... shall not be barred by the common law rule of employment at will from bringing an action in tort for- damages against his employer; (2) an employee who is discharged for reporting illegal acts of his employer to the employer or anyone else is not barred by the employment at will doctrine from bringing action in tort for damages against his employer. To this limited extent this Court declares these public policy exceptions to the age old common law rule of employment at will, .

McArn, 626 So.2d at 607 (emphasis added). Walker contends that her claim falls under the first McAm exception'—“refus[ing] to participate in an illegal act.” Id. She argues that her refusal to refute allegations that Thompkins improperly disseminated personal information about DaVita Health employees led to harassment and ultimately her termination. She asserts that Thompkins’s actions amounted to fraud— an illegal act—'Which justifies her protection under McArn.

¶ 7.. Consequently, she argues that the allegations made in her complaint were not successfully refuted 'by DaVita Health; therefore, taking the statements in her complaint as true, and applying the McAm exception, the circuit court. should have denied the motion to dismiss.

¶ 8. DaVita Health -responds that the circuit court was not in error because Walker’s allegations were not sufficiently' pled in her complaint under the requirements of Mississippi Rule of Civil Procedure 8; and the McAm exceptions do not apply to the conduct alleged, even if taken as true. With respect to Rule 8,- DaVi-ta Health argues that Walker failed to provide a sufficient factual basis showing that she was entitled to relief. In addition, DaVita Health argues that she failed to provide specificity regarding any illegal activity to support her claim of wrongful termination under McArn.

¶ 9. Since Walker was admittedly an at-will employee, in order for her wrongful-termination claim to be actionable under these facts, it must fall within the McAm exception. This Court has clearly held that the “Applicability of the [McAm] exception does not require that a crime has already been committed, ... but it does require that the acts complained of warrant the imposition of criminal penalties, as opposed to mere civil penalties.” Hammons v. Fleetwood Homes of Miss., Inc., 907 So.2d 357, 360 (¶ 11) (Miss. Ct. App. 2004).

¶ 10. In claiming that she was ■ discharged for refusing to refute allegations that Thompkins had improperly disseminated personal information of DaVita Health employees, Walker fails to identify any actionable illegality, and, thus, fails to satisfy the requirements of McAm.

¶ 11. Therefore, the circuit court was correct in granting the Appellees’ Rule 12(b)(6) motion to dismiss Walkers claim. Accordingly we affirm.

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

¶ 13. LEE, C.J., GRIFFIS, P.J., BARNÉS, ISHEE, FAIR, WILSON, GRÉENLEE AND WESTBROOKS, CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . In Walker’s response to DaVita Health’s motion to dismiss, she conceded that her intentional-infliction-of-emotional-distress claim was not timely filed and would not be pursued. Walker's negligent-infliction-of-emotional-distress claim is also not before us on appeal; therefore, the only issue that will be addressed on appeal is Walker’s wrongful-termination claim.


author: WILSON, J.,

text:
    Delois KING, Appellant v. Willie B. KING, Appellee
    NO. 2015-CA-01395-COA
    Court of Appeals of Mississippi.
    03/21/2017

      ATTORNEYS FOR APPELLANT: WILLIAM T. MAY, K. DUSTIN MARKHAM
    ATTORNEYS FOR APPELLEE: JOE S. DEATON III, R. JASON CANTERBURY
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1. Delois King was injured when a tractor turned over on her while she was on the property of her mother, Willie King. Delois sued her mother on a theory of premises liability. The circuit court granted summary judgment for Willie because Delois failed to present any evidence that Willie’s property was unsafe or that Willie breached any duty to warn or duty of care. The circuit court correctly determined that Willie was entitled to judgment as a matter of law. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Willie was 101 years old in November 2009, when the incident that gave rise to this lawsuit occurred. She passed away on or about March 17, 2014.

¶ 3. Delois’s affidavit, which she submitted in response to Willie’s motion for summary judgment, provides the following version of the incident on which her lawsuit is based: On November 3, 2009, De-lois went to Willie’s house in De Kalb in response to Willie’s “request that [she] remove abandoned junk cars from [Willie’s]. property.” Willie “directed” Delois “to use the tractor on the premises ... to accomplish her requested task.” Willie owned and “was familiar with the tractor and its uses.” Willie’s instructions “worried” and “concerned” Delois, but Willie “insisted” that Delois “work[] towards completion” of the task. The tractor turned over on Delois, causing severe injuries.

¶4. Sherman Fox and Cedric Adams were also present when Delois was injured. Their affidavits, which were attached to Willie’s motion for summary judgment, provide a substantially different version of the incident: Adams first, attempted to load an abandoned junk car onto a trailer using a “come-along” winch. “When that didn’t work, Delois ... insisted on using a small yard tractor to load the car.” Fox and Adams told Delois that using the tractor in that manner would be “dangerous and tried to dissuade her,” but Delois “attempted to load the car using the tractor” anyway. When she did, “[t]he tractor flipped over on top of [her].” Fox and Adams say that Willie was not present at the time and gave no instructions regarding the tractor. Indeed, Fox and Adams state that, as far as they know, “no one ever used the tractor other than De-lois.”

¶ 5. On April 6, 2012, Delois sued Willie in the Kemper County Circuit Court. De-lois’s complaint alleged that Willie provided her with an unsafe tractor and failed to warn her of dangerous conditions on the premises. On September 27, 2012, the circuit court appointed a guardian ad litem for Willie after “having made an independent inquiry as to [her] current mental and physical condition.” On November 15, 2012, Willie filed a motion for summary judgment.

¶ 6. On April 22, 2014, Delois filed a suggestion of death pursuant to Mississippi Rule of Civil Procedure 25(a), informing the court that Willie had passed away. Defense counsel subsequently filed a motion to dismiss the case because Delois failed to. file a motion to substitute the proper party within ninety days, as required by Rule 25(a)(1). On March 5, 2015, the court denied the motion to dismiss but ordered Delois to open an estate for Willie within thirty days. However, there is nothing in the record to show that an estate was ever opened or substituted as a party.

¶ 7. On August 7, 2015, the circuit court granted summary judgment for Willie. The court concluded that Willie was entitled to judgment as a matter of law because regardless of whether Delois was an invitee or licensee, there was no evidence that the tractor was dangerous or defective, that Willie’s property was in any way unsafe, that there were any hidden dangers on the property, or that Willie breached any duty to Delois.

¶ 8. Delois filed a timely notice of appeal. She argues that the conflicts between her affidavit and the affidavits of Fox and Adams create genuine issues of material fact. She also emphasizes her claim that she was an invitee on the property. And she asserts that Willie failed to warn her of the “dangerousness of'the tractor,” the “dangerous condition of the property,” or the “dangers that would result from [her] ill-advised use of the tractor.”

ANALYSIS

¶ 9. We review an order granting summary judgment de novo. Pigg v. Express Hotel Partners LLC, 991 So.2d 1197, 1199 (¶ 4) (Miss. 2008). The movant is entitled to summary judgment if there is no genuine issue of material fact. Glover ex rel. Glover v. Jackson State Univ., 968 So.2d 1267, 1275 (¶ 22) (Miss. 2007). “The evidence is viewed in the , light most favorable to the party opposing the motion.” Davis v. Hoss, 869 So.2d 397, 401 (¶ 10) (Miss. 2004). But “[t]he non-moving party may not rest upon mere allegations or denials in the plead-' ings but must set forth specific facts showing that there are genuine issues for trial.” Pigg, 991 So.2d at 1199 (¶ 4) (quoting Massey v. Tingle, 867 So.2d 235, 238 (¶ 6) (Miss. 2004)). In other words, “the non-movant cannot just 'sit back and remain silent, but he must rebut by producing significant probative evidence showing that there are indeed genuine issues for trial.” McMichael v. Nu-Way Steel & Supply Inc., 563 So.2d 1371, 1375 (Miss. 1990) (quoting Newell v. Hinton, 556 So.2d 1037, 1041 (Miss. 1990)).

¶ 10. To prevail in a premises liability case, a plaintiff must prove’the elements of duty, breach of duty, damages, and proximate causation. See Wilbanks v. Hickman, 198 So.3d 393, 397 (¶ 10) (Miss. Ct. App. 2016). Thus, to avoid, summary judgment, Delois must show there is a genuine issue of material fact as to each of these elements. See id.

¶ 11; “When a person is injured on the premises of another, the duty owed depends on whether the person is an invitee, a licensee, or a trespasser at the time of the injury.” Rankin v. Matthews, 197 So.3d 933, 936 (¶ 7) (Miss. Ct. App. 2016). Like the circuit court, we will assume for purposes of summary judgment that De-lois was an invitee on Willie's property. “A landowner owes the highest duty to an invitee,” Keith v. Peterson, 922 So.2d 4, 9 (¶ 10) (Miss. Ct. App. 2005), but even so the landowner “is not an insurer of the invitee’s safety.” Caruso v. Picayune Pizza Hut Inc., 598 So.2d 770, 773 (Miss. 1992). Rather the landowner “owes a-duty to the invitee to keep the premises reasonably safe and, when not reasonably safe, to warn only of hidden dangers not in plain and open view” Double Quick Inc. v. Moore, 73 So.3d 1162, 1166 (¶ 13) (Miss. 2011).

¶ 12. In the case at hand, the clear differences between Delois’s affidavit and the affidavits of Fox and Adams demonstrate that there are indeed disputes of fact. But the mere existence of'disputed facts does not preclude summary judgment. “The focal point of our standard for summary judgment is on material facts,” by which we mean those facts “that matter! J in an outcome determinative sense,” Simmons v. Thompson Mach. of Miss. Inc., 631 So.2d 798, 801 (Miss. 1994). “The existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding’ the material issues of fact.” Sanders v. Advanced Neuromodulation Sys., Inc., 44 So.3d 960, 965 (¶ 11) (Miss. 2010). (quoting Moss v. Batesville Casket Co., 935 So.2d 393, 399 (¶ 17) (Miss. 2006)); see also Summers ex rel. Dawson v. St. Andrew’s Episcopal Sch. Inc., 759 So.2d 1203, 1208 (¶ 12) (Miss. 2000) (“Numerous, immaterial facts may be controverted, but only these that affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” (quotation marks omitted)).

¶ 13. Only immaterial facts are controverted in this case. For even if we assume that Delois was an invitee and that everything in her .affidavit is true, Willie is entitled to judgment as a matter of law. Delois offers conclusory assertions such as that the tractor and unspecified “conditions of the premises” were “dangerous,” that Willie knew or should have known of their “dangerousness,” and that Willie failed to warn her. However, the record is completely devoid of evidence that the property or tractor was unsafe or possessed any hidden dangers that were known, or should have been known, to Willie. There is no evidence that the tractor turned over because of some unusual feature of the land. Nor is there any evidence that the tractor was anything but an ordinary tractor. All the record shows is that a tractor turned over on Delois as she was operating it on Willie’s property. Absent additional evidence, a tractor is not a dangerous condition, and the mere fact that Delois was injured on Willie’s property does not make Willie liable for her injuries. Summary judgment was also appropriate because the, record is clear-that the proximate cause of -Delois’s injuries was her own decision to use the tractor to attempt to move cars, not any unsafe or dangerous condition on the premises. .

¶ 14. In short, there is no genuine issue of material fact, and Willie is entitled to judgment as a mátter of law, so the circuit court correctly granted her motion for summary judgment.

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

LEE, C.J., IRVING AND GRIFFIS, . P.JJ., BARNES, ISHEE, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR.'

      . At some point prior to signing this affidavit, Delois had stated in’response to an interrogatory that she could not recall the details of the incident due to the passage of time and “gaps” in her memory.

      , Delois’s affidavit was the only evidence she submitted in response to Willie’s motion for summary judgment.


author: CARLTON, J., WILSON, J.,

text:
    Brooks MONAGHAN, M.D., Appellant v. Robert AUTRY Jr. a/k/a Robert Autry, Appellee
    NO. 2015-CA-01772-COA
    Court of Appeals of Mississippi.
    03/21/2017

      ATTORNEY FOR APPELLANT: MICHAEL ALFRED JACOB II
    ATTORNEY FOR APPELLEE: JOHN E'. SHAW
   CARLTON, J.,

FOR' THE COURT:

¶ 1.' Dr. Brooks Monaghan appeals the judgment of the Attala County Circuit Court awarding Robert Autry Jr. (Autry Jr.) attorney’s fees and expenses against Dr. Monaghan. Dr. Monaghan claims that the trial court erred in finding that Autry Jr. possessed standing to seek attorney’s fees and expenses pursuant to Mississippi Code Annotated section 11-55-5 (Rev. 2012). Finding no error in the trial court’s judgment, we affirm.

FACTS

¶ 2. On March 10, 2015, Dr. Monaghan filed a complaint against “Robert Autry” (Autry) seeking payment for medical services provided to Autry by Dr. Monaghan, plus legal fees and court costs incurred as a result of Autry’s failure to pay. The complaint listed a Kosciusko, Mississippi street address for Autry. •

¶ 3. The record contains the affidavit of a process server, which reflects that, on April 23, 2015, the process server served Autry Jr. with a summons and complaint filed by Dr. Monaghán. The record reflects that process was personally served to a “Robert Autry” at the Kosciusko address listed in the complaint. The process server described the person served as a white male in his late fifties or sixties.

¶ 4. On April 25, 2015, Autry Jr.’s counsel sent a letter to Dr. Monaghan’s counsel explaining that a mistake occurred. In the letter, Autry Jr.’s counsel provided that, in the course of conversations with collection agents, Autry Jr. was advised that the debtor Robert Autry lives in Walls, Mississippi, and not Kosciusko. Autry Jr.’s counsel also explained that the last four digits of the debtor Autry’s Social Security number are different than the last four digits of Autry Jr.’s Social Security number. Finally, Autry Jr.’s counsel stated that the debtor Autry was born in 1968, more than twenty years after Autry Jr. was born.

¶ 5. On May .7, 2015, Autry Jr. filed an answer to Dr. Monaghan’s complaint denying that he is the “Robert Autry” named as a defendant in the case. On August 21, 2015, Dr. Monaghan filed a motion to dismiss the case without prejudice.

¶ 6. On September 22, 2015, Autry Jr. filed a -motion for attorney’s fees and expenses incurred as a result of defending the matter. In his motion, Autry Jr. provided that, in January or February 2015, he received a letter from the law office of Michael Jacob II concerning the debt- of a Robert Autry. Autry Jr. called the number provided in the letter and spoke to a woman at the law office. Autry Jr. stated he explained that he was not' the Robert Au-try who owed the debt and that he had never received medical services from Dr. Monaghan. Autry Jr. stated that the woman on the phone assured him that she would take care of the matter. Autry Jr. claims that he ultimately incurred $810 in attorney’s fees as a -result of defending the matter. As a result, Autry Jr., maintains that, he is entitled to attorney’s fees and costs under section 11-55-5, since Dr. Monaghan knew or should have known that Autry Jr. was not one of his patients.

¶ 7. Dr. Monaghan’s attorney filed a response to Autry Jr.’s motion for attorney’s fees and expenses, arguing that the subject lawsuit was filed against Autry, not Autry Jr., and since Autry Jr. was not a party to the lawsuit, he possessed no obligation or standing to file any pleadings with the court in relation to the lawsuit. Dr. Monaghan’s attorney also asserted that, after discovering, that the summons was served upon a nonparty, the lawsuit was dismissed.

¶ 8. The trial court heard arguments on the matter. After the hearing, the trial court stated:

My name is Joseph Loper[ ] Jr. But if I got a summons issued and delivered to me along with a complaint telling me I had to answer as Joseph Loper, I assure you, I would answer or suffer the consequences for it.
But from what I see, ... Autry [Jr.] advised the doctor’s office prior to them filing the suit, that they were attempting to collect from the wrong person. Nevertheless, they went right ahead full speed ahead and served him.
And so, • I believe under the Litigation Accountability Act, they are responsible for paying his attorneyt’s] fees because he had to incur unnecessary -expenses. And I have no doubt that if he had not filed an answer, there would have been a default entered, and they would have a default judgment with the court.
... I do find, the attorney[’s] fees being sought to [be] reasonable—especially, .you know, even to just file an answer to the—respond to the complaint alone plus the other work that was done.

¶ 9. Oh October 27, 2015, the trial court entered an order awarding Autry Jr. a judgment against Dr. Monaghan and his attorney, jointly and severally, in the amount of $810. The trial court explained that, after hearing arguments from the parties and considering the Litigation Accountability Act,- Dr. Monaghan knew or should have known that Autry Jr.-was not the individual indebted to Dr. Monaghan.

¶ 10. Dr. Monaghan how appeals this judgment, claiming that the trial court incorrectly held that Autry Jr. possessed standing to seek attorney’s fees and expenses under section 11-55-5.

STANDARD OF REVIEW

. ¶ 11. The Mississippi Supreme Court has stated that “[t]he decision to award monetary sanctions under the Litigation Accountability Act is left to the discretion of the trial court.” In re Spencer, 985 So.2d 330, 336-37 (¶ 19) (Miss. 2008); see Miss. Code Ann. § 11-55-7 (Rev. 2012). On appeal, we review a trial court’s judgment of sanctions for ah abuse of discretion. In re Spencer, 985 So.2d at 337 (¶ 19). Furthermore, “[i]n the absence of a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon [the] weighing of relevant factors, the judgment of the court’s imposition of sanctions will be affirmed.” Id.

DISCUSSION

¶ 12. As a preliminary matter, the record reflects that Dr. Monaghan filed a motion for. voluntary dismissal without prejudice on August 31, 2015. As stated previously, this motion for voluntary dismissal was filed more than.three months after Autry Jr. filed his answer to the complaint on May 7, 2015. Upon learning of the voluntary dismissal, Autry Jr. claimed that Dr. Monaghan knew or should have known that Autry Jr. was not a patient and not indebted to Dr. Mona-ghan, As a result, Autry Jr. filed a motion on September 22, 2015, claiming that, as a condition of the dismissal, he was entitled to attorney’s fees and costs under the Litigation Accountability Act, ‘ as set forth in section’ 11-55-5: Section 11-55-5(2) states:

No attorney’s fees or costs shall be assessed if a voluntary dismissal is filed as to ‘any action, claim[,] or defense within a reasonable timé after the attorney or party filing the action, claim[,] or defense knows or reasonably should have known that' it would not prevail on the action, claim[,] or defense.

¶ 13. The judgment in the record before us is entitled “Judgment for Defendant,” ■ and it reflects 'that the judgment was entered in response to Autry Jr.’s motion for attorney’s fees. The “Judgment for Defendant” also shows that the chancellor considered the pleadings of the- parties, arguments of counsel, and the Litigation Accountability Act, While a separate order granting Dr. Monaghan’s voluntary dismissal does not. appear, in the appellate record before this Court, the “Judgment for Defendant” contained in the record is clearly predicated upon such a dismissal. BellSouth Pers. Commc’ns LLC v. Bd. of Sup’rs of Hinds Cty., 912 So.2d 436, 442-43 (¶¶ 23.-23) (Miss. 2005) (“[A] case, may be dismissed without prejudice but still have the same effect of a dismissal with prejudice as far as finality for appeal purposes[.]”); Hughes Equip. Co. v. Fife, 482 So.2d 1144, 1146 (Miss. 1986) (“[Permitting [the] recovery of attorney[’s] fees by [the] defendant in all cases of [a], voluntary dismissal before trial would encourage plaintiffs to maintain pointless litigation in moot cases or against insolvent defendants to avoid liability for those fees,”). We further note that Dr. Monaghan and Autry Jr. do not dispute that the case was indeed dismissed. Hence, we And that the “Judgment for Defendant” contained in the record is a sufficient final judgment for appellate review of this case.

¶ 14. Regarding Dr. Monaghan’s argument on appeal, Dr, Monaghan argues that the trial court erred in finding him liable to Autry Jr. for attorney’s fees. Dr. Monaghan relies upon section 11-55-5(1), and he asserts that the statute clearly applies only to parties of a lawsuit and their attorneys. Dr. Monaghan claims that, as a nonparty, Autry Jr. lacked standing to bring his motion for attorney’s fees and expenses since the statute creates no separate cause of action for a violation of the Litigation Accountability Act.

¶ 15. Section 11-5-5(1) provides:

Except as otherwise provided in this chapter, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and. in addition to any other costs otherwise assessed, reasonable attorney’s fees and costs against, any party or .attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is .without substantial justification, or that the action, or .any claim or defense .asserted, was interposed for delay or harassment,, or if it finds that an attorney or party unnecessarily expanded the proceedings by other improper conduct including, but not limited to, abuse of discovery procedures available under the Mississippi Rules of Civil Procedure.

¶ 16, For purposes of the Litigation Accountability Act, this Court has recognized that “[a] claim is without substantial justification when it is frivolous, groundless in fact or law, or vexatious,” Cain v. Cain, 967 So.2d 654, 667 (¶ 31) (Miss. Ct. App. 2007). In Cain, this Court looked to Mississippi Rule of .Ciyil Procedure 11 for the definition of “frivolous” to determine whether, a claim is frivolous. Id. (citing Wilson v. Greyhound Bus Lines, 830 So.2d 1151, 1159 (¶ 21) (Miss. 2002)). Upon so doing, this Court determined that “a claim is frivolous only when, objectively speaking, the pleader or movant has no hope of success;... Though a 'case may be weak or light-headed, that is ’not sufficient to label it' frivolous.” Id. (internal citations and quotation marks omitted).

¶ 17. In the present casé, the record reflects that Dr. Monaghan filed his suit on March 10, 2015. As stated, in his motion seeking attorney’s fees and expenses, Autry Jr, claimed that, in January or February 2015, he received a letter from Dr. Monaghan’s attorney concerning the debt of a Robert Autry. Hence, Autry Jr. explained through an affidavit that he personally called the law office and explained that he was not the Robert Autry who owed the debt and that he had never received medical services from Dr. Mona-ghan. However, despite notifying Dr. Monaghan’s office of the misidentifieation, Autry Jr. was served with process on April 23, 2015. On April 25, 2015, Autry Jr.’s counsel sent a letter to Dr. Mona-ghan’s counsel explaining that a mistake occurred and provided the following information: the debtor Autry lives in Walls, Mississippi, and not Kosciusko; the last four digits of the debtor’s Social Security number are different than the last four digits of Autry Jr.’s Social Security number; and the debtor Autry was born in 1968, more than twenty years after Autry Jr. was born. Additionally, Autry Jr. filed an answer to Dr. Monaghan’s complaint on May 7, 2015, denying that he is the Robert Autry named as a defendant in the case.

¶ 18. Dr. Monaghan argues that even if Autry Jr. was allowed to seek attorney’s fees and expenses as a nonparty under section 11-55-5(1), Dr. Monaghan would still not be liable to him for the attorney’s fees and expenses awarded by the trial court herein. Dr. Monaghan cites to section 11-55-5(2), which states:

No attorney’s fees or costs shall be assessed if a voluntary dismissal is filed as to any action, claim[,] or defense within a reasonable time after the attorney or party filing the action, claim[,] or defense knows or reasonably should have known that it would not prevail on the action, claim[,] or defense.

Dr. Monaghan submits that the underlying lawsuit herein was not dismissed on the merits; rather, Dr. Monaghan voluntarily dismissed the lawsuit for his failure to perfect service on the correct defendant.

¶ 19. As stated, Autry Jr. does not dispute that the case was indeed dismissed. However, Autry Jr. takes issue with the fact that Dr. Monaghan failed to dismiss the case until August 31, 2015, more than 100 days after it was filed, and months after Autry Jr. advised Dr. Monaghan that he was not the “Robert Autry” who owed payment for services. Autry Jr. also takes issue with the expenses he incurred by filing an answer to respond to the March 10, 2015 complaint served upon him.

¶ 20. In Cain, 967 So.2d at 667 (¶ 30) (citing BellSouth, 912 So.2d at 443-44 (¶ 26)), this Court held that the “terms and conditions” accompanying a judgment of dismissal of a claim “are discretionary with the trial court and may include awarding attorney’s fees as protection for the unwitting litigant.”

¶21. The record reflects that, in its judgment awarding Autry Jr. attorney’s fees and expenses, the trial court recognized that, prior to the lawsuit, Autry Jr. indeed advised Dr. Monaghan’s office they were attempting to collect payment from the wrong person, but Dr. Monaghan still served Autry Jr. with the summons and complaint. The trial court found that, if Autry Jr. had failed to file an answer to the complaint, “there would have been a default entered, and they would have a default judgment with the court.” The trial court ultimately held that, “under the Litigation Accountability Act, [Dr. Monaghan and his counsel] are responsible for paying [Autry Jr.’s] attorney[’s] fees because he had to incur unnecessary expenses.” See In re Estate of Necaise, 126 So.3d 49, 57 (¶ 30) (Miss. Ct. App. 2013) (This Court affirmed the chancellor’s award of attorney’s fees to a party where the chancellor found the actions of the opposing counsel caused the party to “incur unnecessary attorney’s fees in responding to [the -opposing counsel’s] filings.”).

¶ 22. After our review of the record, and keeping in mind our standard of review, we cannot find that the trial court erred in awarding attorney’s fees and expenses to Autry Jr. See In re Spencer, 985 So.2d at 336-37 (¶ 19). We therefore affirm the judgment of the trial court.

¶ 23. THE JUDGMENT OF THE AT-TALA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING, P.J., ISHEE, FAIR AND WESTBROOKS, JJ., CONCUR. GREENLEE, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. WILSON, J., DISSENTS' WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J., ' BARNES AND GREENLEE, JJ.

WILSON, J.,

DISSENTING:

¶ 24. .1 agree with the circuit judge’s award of $810-in attorney’s fees and expenses under the Litigation Accountability Act. The award was reasonable and appropriate, and Monaghan’s arguments that the judge erred are without merit. However, I respectfully dissent because there is no final judgment and, hence, we lack appellate jurisdiction. We must raise this issue sua sponte, as jurisdictional issues cannot be waived, and jurisdiction cannot “be conferred on this Court by stipulation of the parties.” Donald v. Reeves Transp. Co., 538 So.2d 1191, 1194 (Miss. 1989).

¶25. After Autry Jr. had already answered the complaint, Monaghan filed what purported to be a “Notice of Dismissal Without Prejudice.” It was not a “motion.” Ante at (¶ 12). It was a “Notice.” Monaghan’s “Notice” was ineffective.

¶ 26. Mississippi Rule of Civil Procedure 41(a) is clear. The plaintiff can voluntarily dismiss his complaint without prejudice only by filing a notice of dismissal at any time before a defendant serves an answer or by filing a stipulation of dismissal signed by all parties who have appeared. M.R.C.P. 41(a)(1). Otherwise, “an action shall not be dismissed at the plaintiffs instance save upon order of the court and upon such terms and conditions as the court deems proper.” M'.R.C.P. 41(a)(2).

¶ 27. Because Autry Jr. had answered the complaint, it was too late for Mona-ghan to dismiss the case unilaterally by filing a “Notice.” Autry Jr. did not sign a stipulation of dismissal. And the circuit court did not enter an order dismissing the case. The court did enter a “Judgment for Defendant” awarding attorney’s fees and expenses to Autry Jr., but it did not address the underlying complaint or- Mona-ghan’s ineffectual notice of dismissal. This Court recently held that a judgment awarding attorney’s fees to a defendant is not final and appealable if, as in this case, there is no final judgment on the underlying complaint. Hoffman v. Hoffman, 200 So.3d 465, 468 (¶ 14) (Miss. Ct. App. 2016). No judgment has been entered on Monaghan’s claim against Autry Jr., so there was no final judgment to appeal. In re Norton, 126 So.3d 890, 891 (¶ 5) (Miss. 2013) (“The right to appeal does not arise until the trial court disposes of all the claims against all defendants.”).

¶ 28. It is unclear whether the majority concludes that there is a final, appealable judgment because it considers the “Judgment for Defendant” an “order of the court” for purposes of Rule 41(a)(2), because it believes that Autry Jr. somehow stipulated to a dismissal, or for some other reason. However, the judgment for Autry Jr. did not address the underlying complaint, Autry Jr. never signed a stipulation of dismissal, and Rule 41 makes clear that Monaghan lost, the ability/to dismiss the case unilaterally- once Autry Jr. filed an answer. Therefore, there is no final judgment, and the appeal should be dismissed for lack of jurisdiction.

GRIFFIS, P.J., BARNES AND GREENLEE, JJ., JOIN THIS OPINION.

      . See Miss. Code Ann. § 11-55-5(3) ("When a court determines reasonable attorney's fees or costs should be assessed, it shall assess the payment against the offending attorneys or parties,. or both, and in its discretion may allocate the payment among them, as it determines most just[.]”),

      . Mississippi Rule of Civil Procedure 41(a)(1) addresses the effect of a voluntary dismissal by the plaintiff and provides:

        Subject to the provisions of Rule 66, or of any statute of .the State of Mississippi, and upon the payment of all costs, an action may be dismissed by the plaintiff without order of court: (i) by.filing a notice of . dismissal at any time before service .by the adverse patty of an answer or of a motion for summary judgment, whichever first occurs; or (ii) by filing a stipulation of .dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice.

      . Dismissal of the appeal would leave in place Autry Jr.’s judgment for attorney's fees and expenses, and Monaghan would be well-advised not to attempt another appeal. Also, the circuit court could condition dismissal under Rule 41(a)(2) on payment of attorney's fees and expenses. See BellSouth Pers. Commc'ns LLC v. Bd. of Sup’rs of Hinds Cty., 912 So.2d 436, 443-44 (¶ 26) (Miss. 2005).


author: WESTBROOKS, J.,

text:
    Samuel CONWILL a/k/a Samuel B. Conwill a/k/a Samuel Brent Conwill, Appellant v. STATE of Mississippi Appellee
    NO. 2016-CP-00921-COA
    Court of Appeals of Mississippi.
    10/17/2017

      ATTORNEY FOR APPELLANT: SAMUEL CONWILL (PRO SE)
    ATTORNEY FOR APPELLEE: .OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH
    BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.
   WESTBROOKS, J.,

FOR THE COURT:

’ ¶ 1. Samuel Conwill appeals the dismissal of his petition for postconviction relief (PCR) in the Clay County Circuit Court; Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Conwill was indicted bn one count, of possession of methamphetamine precursor and one-count of possession of-meth-amphetaminé. ■ Conwill' pled ■ guilty to • possession of methamphetamine in exchange for the State retiring the possession-of-precursors count. Following his conviction and sentence, Conwill filed 'a -motion to correct the Mississippi Department of Correction’s record of a parole to a 'detainer, as to another charge and another sentence. The trial court dismissed that motion. Con-will subsequently filed a petition to “vacate [the]- illegal sentence.” The trial court dismissed that petition.-Conwill then filed a motion to appeal out-of-time and his notice ’ of appeal. The trial court granted his motion to appeal out-of-time.

¶3. On appeal, Conwill argues that he was denied due process and the right to confrontation. He' claims that during his sentencing hearing, the records of his previous convictions, known as “pen packs,” were admitted into evidence without foundational testimony to certify their accuracy. He asserts that the admission of the pen packs was reversible error. We find this argument to be without merit. ■

STANDARD OF REVIEW

¶4. “Circuit courts may summarily. dismiss a PCR motion ‘if it- plainly appears from the face of the motion,- any annexed exhibits[,] and the .prior proceedings in the case that the movant is not entitled to any relief.’ Dixon v. State, 52 So.3d 1254, 1254 (¶ 2) (Miss. Ct. App. 2011) (quoting Robinson v. State, 19 So.3d 140, 141-42 (¶ 6) (Miss. Ct. App. 2009)). In reviewing the circuit court’s dismissal of a PCR motion, the circuit court’s factual findings will not be disturbed unless clearly erroneous. Mann v. State, 2 So.3d 743, 745 (¶ 5) (Miss. Ct. App. 2009).

DISCUSSION

¶ 5..At.Conwill’s guilty-plea hearing, the State moved to amend the indictment to reflect Conwill’s habitual offender status and entered the pen packs into evidence as proof of his status as a habitual offender. Conwill’s trial counsel did not object to the motion, and the trial court granted the State’s motion to amend. During the hearing, Conwill’s trial counsel stated that Conwill was aware that the indictment could be amended any time pri- or to trial and did not contest the amendment, because.the habitual offender stipulation was part of the plea agreement. “When an accused fails, to object to the habitual offender issue during the sentencing phase, he is procedurally barred to do so the first time on appeal.” Reed v. State, 180 So.3d 755, 756 (¶ 4) (Miss. Ct. App. 2015) (quoting Heidelberg v. State, 45 So.3d 730, 732 (¶ 6) (Miss. Ct. App. 2010)). Conwill did not object to the motion to amend the indictment. Therefore, this matter is procedurally barred.

¶ 6. Notwithstanding thé procedural bar, Conwill’s assertion that pen packs are insufficient proof of habitual offender status without a testimonial foundation is without merit. “[U]nder [s]ection 99-19-81 of the Mississippi Code, proof of habitual status is sufficient where the State demonstrates that a defendant was sentenced to terms in excess of one year.” Frazier v. State, 907 So.2d 985, 991 (¶ 15) (Miss. Ct. App. 2005) (citing Miss. Code Ann. § 99-19-81) (Rev. 2015)). “[Certified copies of ‘pen packs’ suffice as competent evidence of prior convictions.” Id. at 991 (¶ 16) (citing Dixon v. State, 812 So.2d 225, 231 (¶ 27) (Miss. Ct. App. 2001)). This Court’s ruling in Frazier does not support Conwill’s contention that pen packs need authentication and a testimonial foundation to support sentencing as a habitual offender.

¶ 7. Conwill argues that Frazier contradicts the .Mississippi Supreme Court’s holding in Kettle v. State, 641 So.2d 746 (Miss. 1994), and the United States Supreme Court’s holding in Bullcoming v. New Mexico, 564 U.S. 647, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). We do not agree. The issue presented in Kettle was whether someone other than the testing technician could authenticate the laboratory results to support a conviction. Our supreme court held that testimonial evidence from a person, other than the testing technician, violated the' Sixth Amendment right to confrontation. Kettle, 641 So.2d at 750. Likewise, in Bullcoming, the United States Supreme Court found that surrogate testimony of a scientist who did not sign the testimonial certification or observe the test reported in the certification violated the defendant’s Sixth Amendment right to confrontation. Bullcoming, 564 U.S. at 652, 131 S.Ct. 2705. The holdings in Kettle and Bullcoming do not contradict this Court’s holding in Frazier. The evidence in question in those cases required scientific analysis of laboratory results by the testing individual, whereas pen packs do not. The preparation and management of pen packs are administrative in nature, and they only need to be certified by the custodian who maintains the records in the ordinary course of business. Accordingly, we find that testimonial evidence need not be proffered to authenticate pen packs. Finding no error, we affirm the circuit court’s dismissal of Conwill’s PCR petition.

¶ 8. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. TINDELL, J., NOT PARTICIPATING.


author: GRIFFIS, P.J.,

text:
    Lyndon B. BRITAIN a/k/a Lyndon Britain a/k/a Lyndon Bryan Britain a/k/a Lyndon Bryon Britain a/k/a Lyndon Brian Britain a/k/a Brian Brittan, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01474-COA
    Court of Appeals of Mississippi.
    10/17/2017

      ATTORNEY FOR APPELLANT: LYNDON B. BRITAIN (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY T. GERBER
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ. .
   GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. Lyndon B. Britain appeals the denial of his motion for post-conviction collateral relief (PCCR). We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On March 26, 2012, Britain entered a plea of guilty to possession of precursors with intent to manufacture' a controlled substance, and was sentenced-to twenty years, with nineteen years and 171 days suspended, leaving 194 days to serve in the custody of the Mississippi Department of Corrections (MDOC), followed by five years of reporting post-release supervision, and five years of nonreporting post-release supervision.

¶ 3. A petition for, revocation of post-release’supervision was subsequently filed. At the .revocation hearing, Britain admitted that while on post-release supervision, he committed the felony crimes of possession of methamphetamine, possession of morphine, and possession of Schedule II, III, IV, and V controlled substances. As a result, on August 24, 2012, the circuit court entered an agreed order of revocation of post-release supervision, and sentenced Britain to serve nineteen years and 171 days in the custody of the MDOC.

¶4. On June 19, 2016, Britain filed a motion for PCCR. In his motion, Britain argúed his conviction and sentence were invalid due to an illegal search and seizure and ineffective assistance of counsel. * On November 7, 2016, the circuit court found Britain’s claims were time-barred and de-. nied the motion. Britain now- appeals.

STANDARD OF REVIEW

¶ 6. We will not disturb a circuit court’s denial of a motion for PCCR unless the factual findings are clearly erroneous. Kennedy v. State, 179 So.3d 82, 83 (¶ 5) (Miss. Ct. App. 2016). However, questions of law are reviewed de novo. Id.

ANALYSIS

I. Timer-Bar

¶ 6. Pursuant to Mississippi Code Annotated section 99-39-5(2) (Rev. 2009), in the case of a guilty plea, a motion for PCCR shall be filed “within three (3) years after entry of the judgment of conviction.” Here, Britain’s judgment of conviction was entered March 26, 2012. Thus, Britain had until March 26, 2015, to move for PCCR. However, Britain did not file his motion for PCCR until June 19, 2016, over four years after his conviction. Consequently, Britain’s motion is time-barred.

¶ 7. Britain acknowledges his motion for PCCR is untimely, but claims he is exempted from the procedural bar under Rowland v. State, 42 So.3d 503 (Miss. 2010). Pursuant to Rowland, “errors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post-Conviction Collateral Relief Act].” Id. at 507 (¶ 12). However, “the mere suggestion of a constitutional-right violation is not itself sufficient to surmount the time-bar.” Jones v. State, 203 So.3d 657, 659 (¶ 8) (Miss. Ct. App. 2016). “There must at least appear to be some basis for the truth of the claim before the limitation period will be waived.” Id. Thus, we address Britain’s claims.

II. Illegal Search and Seizure

¶ 8. Britain asserts that “due to the lack of probable cause and no search warrant by a Cj]udge, the search and seizure was unreasonable^] resulting in illegally obtained evidence.” However, the record reflects Britain entered a valid guilty plea. “A valid guilty plea constitutes a waiver of certain constitutional claims, including illegal search and seizure.” Garcia v. State, 14 So.3d 749, 750 (¶ 6) (Miss. Ct. App. 2009).

¶ 9. “A guilty plea is voluntarily and intelligently made if the circuit court ‘advisefd] the defendant of his rights, the nature of the charge against him, as well as the consequences of the plea.’ ” Berryhill v. State, 197 So.3d 938, 940 (¶ 7) (Miss. Ct. App. 2016) (quoting Burrough v. State, 9 So.3d 368, 373 (¶ 11) (Miss. 2009)). Here, both the plea petition and the plea-hearing transcript show Britain was advised of and understood his constitutional rights, the nature of the charge against him, the minimum and maximum sentences for the charge, and the consequences of his guilty plea. Thus, the record shows Britain’s guilty plea was .voluntarily and intelligently entered.

¶ 10. Since the record shows Britain entered a valid guilty plea, his claim of an illegal search and seizure was waived.

III.Ineffective Assistance of Counsel

¶ 11. To prove ineffective assistance of counsel, Britain must show: his counsel’s performance was deficient, and this deficiency prejudiced the defense. Liddell v. State, 7 So.3d 217, 219 (¶ 6) (Miss. 2009) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). There is “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, Britain “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

¶ 12. Britain claims his counsel was ineffective since she “failed to acknowledge [the] fact that probable cause and a search warrant were lacking.” The plea petition and the plea-hearing transcript show Britain’s attorney counseled and advised him on the nature of the charge, any lesser-included offenses, and all possible defenses that he might have had in this case. Additionally, during his plea hearing, Britain advised the circuit court, under oath, that he was satisfied with his counsel and the assistance she provided. “Solemn declarations in open court carry a strong presumption of verity.” Berryhill, 197 So.3d at 941 (¶ 7).

¶ 13. Britain has failed to show that his counsel’s performance was deficient, and that the alleged deficiency prejudiced his defense. Accordingly, Britain’s claim of ineffective assistance of counsel fails.

¶ 14. We find Britain’s motion for PCCR is procedurally barred, and no exceptions apply. Accordingly, we affirm the circuit court’s denial of Britain’s motion for PCCR.

¶ 15. AFFIRMED.

LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. TINDELL, J„ NOT PARTICIPATING.

      . By order entered November 29, 2016, Britain was declared indigent and allowed to.proceed on appeal in forma pauperis. On appeal, Britain challenges his original conviction and sentence. He does not contest the revocation.


author: BOLIN, Justice.

text:
    Sherri HURST v. Rankin SNEED, as administrator ad litem for the Estate of Brenda M. Ray
    1151067
    Supreme Court of Alabama.
    February 3, 2017

      Tommy H. Siniard, William L. Messer-vy, and Bart Siniard of Siniard, Timber-lake & League, P.C., Huntsville, for appellant.
    Gerri L. Plain of .Gaines Gault Hendrix, PC, Huntsville, for appellee.
   BOLIN, Justice.

Sherri Hurst appeals from a summary judgment in favor of the estate of Brenda M. Ray on Hurst’s negligence claim. We reverse and remand.

Facts and Procedural History .

Hurst and- Ray had been friends and neighbors for approximately 20 years before the incident that is the basis of the underlying action, Hurst and Ray would shop together once or twice a month, sharing rides over the years in order to reduce the expenses of gasoline and wear and tear on their respective vehicles, They would alternate as to whose vehicle they would take on each shopping trip.

On August 22, 2013, Ray telephoned Hurst and asked her to accompany her to a Wal-Mart discount store. Ray was taking Nona Williams, her elderly aunt; to purchase Williams’s medication and other merchandise that day, in preparation for Williams’s move to Ohio. Hurst stated that Ray told her: “I really need you if you can go with me to Wal-Mart and go run some errands.” Hurst testified that Williams was “very old” and that she .walked, “slowly.” According to Hurst, although Williams walked “slowly,” she was able to. walk without assistance. Hurst additionally stated that Ray suffered from congestive .heart failure and a variety of other illnesses but that Ray also was able to walk without assistance. Hurst .testified that her purpose in accompanying Ray to the Wal-Mart store was to “help her with her aunt [by] assisting her in the store [and] ... by standing with [Williams] [and] making sure [Williams] got to her correct destination.” When asked specifically what assistance Ray had requested when she asked Hurst to go to the store with her, Hurst replied: “[S]he just wanted me to stay with [Williams] while she would go park the car or come into the store, whatever she needed.”

Williams testified that Ray asked Hurst to accompany them to the Wal-Mart store because “both-[Ray] and I had limited mobility, and [Ray] wanted [Hurst] to come along in case either of us needed help moving around.”

Ray drove her vehicle to the Wal-Mart store, and Williams and Hurst rode as passengers. When they arrived at the Wal-Mart store, Ray pulled her vehicle along the curb in front of the store to allow Williams to get out of .the vehicle at the entrance. After, Williams got out of the vehicle, Ray asked Hurst to stand with Williams on the curb while she parked the car. Hurst then began to get out of,the vehicle, but, before she had completely exited the vehicle, Ray pulled the vehicle forward, causing Hurst to fall to the ground. Hurst sustained injuries when the back tire of the vehicle ran over her leg.

On August 21, 2015, Hurst sued Ray’s estate (“the estate”), alleging negligence and seeking to recover damages for her injuries. The estate answered the complaint, raising as a defense, among other things, the Alabama Guest Statute, § 32-1-2, Ala. Code 1975. On May 25, 2016, the estate moved for a summary judgment, arguing that Hurst’s negligence claim was barred by the Guest Statute. On June 7, 2016, Hurst filed a cross-motion for a summary judgment or, in the alternative, to deny the estate’s motion for a summary judgment. Following a hearing, the trial court, on June 20, 2016, entered an order granting the estate’,s motion for a. summary judgment and denying Hurst’s cross-motion for a summary judgment. Hurst appeals.

Standard of Review

The standard by which this Court reviews a summary judgment is well settled:

“This Court reviews a summary judgment de novo. Turner v. Westhampton Court, L.L.C., 903 So.2d 82, 87 (Ala. 2004). We seek to determine whether the , movant, has made. a prima facie showing that there exists no genuine issue of material fact:-and has demonstrated that the movant is entitled to a judgment as a matter of law. Turner, supra. In reviewing a summary judgment, this Coqrt, reviews the evidence in the light most .favorable to the nonmov-ant. Turner, supra. Once the .movant makes a prima facie showing that he is entitled to a summary judgment, the burden shifts .to .the nonmovant to produce ‘substantial evidence’ creating a genuine issue of material fact. Ala. Code 1975, § 12—21—12; Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989). ‘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 Fla., 547 So.2d 870, 871 (Ala. 1989).”

Muller v. Seeds, 919 So.2d 1174, 1176-77 (Ala. 2005).

Discussion

Section 32-1-2, Ala. Code 1975, provides:

“The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the willful or wanton misconduct of such operator, owner, or person responsible for the operation ■ of the motor vehicle.”

The term “guest” is not defined in the statute; however, this Court has stated:

“ ‘ “The general rule is that if the transportation of a rider confers a benefit only on the person to whom the' ride is given, and no benefits other than such as aré incidental to hospitality, good will or the like, on the person furnishing the transportation, the rider is a guest; but if his carriage tends to promote the mutual interest of both [the rider] and driver for their common benefit, thus creating a joint business relationship between ' the motorist and his rider, or if the rider accompanies the driver at the instance of the driver for the purpose of having the rider render a benefit or service to the driver on a trip that is primarily for the attainment of some objective of the driver, the rider is a ‘passenger for hire’ and not a guest.” ’ ”

Sullivan v. Davis, 263 Ala. 685, 688, 83 So.2d 434, 436-37 (1955)(quoting Wagnon v. Patterson, 260 Ala. 297, 303, 70 So.2d 244, 249 (1954), quoting in turn Hasbrook v. Wingate, 152 Ohio St. 50, 56-57, 87 N.E.2d 87, 91 (1949)). See also Dorman v. Jackson, 623 So.2d 1056, 1057 (Ala. 1993), and Sellers v. Sexton, 576 So.2d 172, 174 (Ala. 1991). Further, this Court has stated: “ Tf the excursion is not purely social, any benefit to the driver of the automobile conferred or anticipated or mutual benefit present or anticipated to the driver and the person carried is sufficient to take the case out of the automobile guest statute.’ ” Harrison v. McCleary, 281 Ala. 87, 90, 199 So.2d 165, 167 (1967)(quoting Blair v. Greene, 247 Ala. 104, 110, 22 So.2d 834, 837 (1945)). This Court has also stated:

“ ‘... In order to keep the person transported from being a gratuitous guest, it is not necessary that he should have paid or agreed to pay directly for his transportation or be a “passenger for hire” in the legal sense of the term; and the payment or compensation which the carrier derives from the undertaking need not consist of cash or its equivalent, but may consist of some other substantial benefit, recompense, or return making it worth while for him to furnish the ride.’ 60 C.J.S., Motor Vehicles, § 399(5)b, p. 1011.
“..."[T]he general rule [is] that a mere incidental benefit to the driver is not sufficient to take the rider out of the guest statute. The benefit conferred must in some degree have induced the driver to: extend the offer to the rider. Further, courts have generally held that the benefit must be material and tangible and must flow from the transportation provided....”

Sullivan, 263 Ala. at 688-89, 83 So.2d at 437. Relative to the court’s task in determining whether a rider in a vehicle was a “guest” or a “passenger for hire,” this Court has stated:

“The commereidl and social relationships that can exist between the driver of an automobile and his passenger are almost as numerous and varied as human activity itself. At one extreme we have the ‘hitchhiker’ guest who clearly falls within the purview of the statute. At the other extreme we' have the passenger who pays the driver to be transported to a particular place and who is unquestionably beyond the scope of the statute. Between these two extremes the dividing line may at times become illusory and shadowy. It is sometimes necessary to enter into a detailed examination of the present and former relations between driver and passenger; implied and expressed arrangements made between them as to the conduct of the particular, trip; the purpose of the mission; the benefits accruing to the driver and passenger from the expedition; and any other factors that bring into proper focus the true status of the parties at the time of the accident which give rise to the legal action.”

Sullivan, 263 Ala. at 687, 83 So.2d at 436.

Hurst argues that the trial court erred in entering a summary judgment in favor of the estate because, she says, based upon the facts of this case she was a passenger and not a guest under the Alabama Guest Statute at the time she sustained her injuries. The general rule set forth in Sullivan above, regarding whether a rider in a vehicle is considered a “guest” or a “passenger for hire” for purposes of the Alabama Guest Statute, has three components: (1) if the transportation of a rider confers a benefit only on the rider, and no benefits, other than such as are incidental to hospitality, good will, or the like, on the driver, the rider is a guest; (2) if the transportation tends to promote the mutual interest of both the rider and the driver for their common benefit, thus creating a joint business relationship between the motorist and his or her rider, the rider is a “passenger for hire” and not a “guest”; and (3) if the rider accompanies the driver at the instance of the driver for the purpose of having the rider confer a benefit or service to the driver on a trip the primary objective of which is to benefit the driver, the rider is a “passenger for hire” and -not a “guest.”

As to the first component of the test espoused in Sullivan, supra, the estate argues that any benefit bestowed upon Ray by Hurst’s accompanying Ray to the Wal-Mart store to assist Ray with Williams was incidental to the goodwill shared between Hurst and Ray that arose from their long-standing friendship. Therefore, the estate ■ contends, Hurst was a “guest” and not a “passenger for hire” under the Guest Statute. It is undisputed that Ray and Hurst had enjoyed a friendship of over 20 years and that they had routinely shared rides with each other. However, nothing in the record indicates, nor has the estate demonstrated, that any benefit was conferred on Hurst by her agreeing to accompany Ray to the Wal-Mart store to assist Ray with her elderly aunt. It does not appear from the record that Hurst was to, be compensated for her assistance or that the trip was in any way for Hurst’s benefit. Based on the facts presented here, Hurst did not qualify as a “guest” under the first component of the test set forth in Sullivan.

As to the second component of the test set forth in Sullivan, we again note that the longtime friends had a history of shopping'together, and, in the course of those shopping excursions, they would share rides and alternate on each trip whose vehicle they would take, for the mutually beneficial purpose of reducing the expenses of gasoline and wear and tear on their respective vehicles. However, the facts presented here indicate that this particular trip was not taken in the context of their standing arrangement of sharing rides for each other’s mutual benefit. Rather, Ray asked Hurst to accompany her to the Wal-Mart store to assist Ray with Williams, her elderly aunt. Nothing in the facts presented indicate that Hurst’s accompanying Ray to the Wal-Mart store to assist her with Williams tended to create a joint business relationship between Hurst and Ray because no bénefit was being conferred upon Hurst. Accordingly, the second component of the test set forth in Sullivan is not determinative of Hurst’s status under the Guest Statute.

As for component threé of the test in Sullivan,' Hurst argues that she conferred a material benefit upon Ray by agreeing to Ray’s request to accompany Ray to the Wal-Mart store to assist Ray with her elderly aunt. Therefore, Hurst contends, she was a passenger and not a “guest” for purposes of the Guest Statute. We agree.- The evidence, viewed in a light most favorable to Hurst, indicates the following. Ray suffered from congestive heart failure and a number of other illnesses. Williams, Ray’s aunt, was described as “very old,” and testimony indicated that -she moved “slowly.” When Ray had to take Williams shopping in preparation for Williams’s -move to Ohio, she told Hurst that she “really needed” Hurst to go to the Wal-Mart store with her. The purpose of Hurst’s accompanying’ Ray to the Wal-Mart store was to assist Ray with Williams while they were, in the store shopping, by standing, with. Williams while Ray parked her automobile, and by providing whatever other assistance Ray might have needed with Williams. In fact, Hurst was injured as she got out of the vehicle at Ray’s direction that Hurst stand with Williams in the front ,of the Wal-Mart store while Ray parked the automobile. Hurst’s accompaniment of Ray to the Wal-Mart store to assist Ray with Williams, conferred more than an incidental benefit to Ray—it conferred a material and tangible benefit because. it relieyed Ray, who herself was ill and suffering from congestive heart failure, of some of the burden of having to be the sole caretaker of her elderly aunt on the shopping excursion. It was this benefit to Ray that induced her to ask- Hurst to accompany her to the Wal-Mart store. Sullivan, supra. Accordingly, we conclude that Hurst’s accompanying .Ray to the Wal-Mart store to assist Ray with her elderly aunt conferred, on Ray a material benefit so. as to, remove Hurst from “guest” status under the.Guest Statute.

Conclusion

We reverse the summary judgment entered in favor of the estate and remand the case for- further - proceedings consistent with this opinion.

REVERSED AND REMANDED.

Stuart, Parker, Shaw, Main, Wise, and Bryan, JJ., concur.

Murdock, J., concurs in the result,

      . Ray died following the events giving rise to the underlying action and before the complaint was filed.