author: MYERS, P.J.,

text:
    Richard ANDERSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00697-COA.
    Court of Appeals of Mississippi.
    Dec. 1, 2009.

      B. Brennan Horan, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before MYERS, P.J., IRVING and GRIFFIS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Richard Anderson was indicted by a DeSoto County grand jury on one count of conspiracy to sell a controlled substance and one count of the sale of a controlled substance. A jury subsequently found Anderson guilty of the conspiracy offense and not guilty of the crime of selling a controlled substance. He was sentenced to five years in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction and sentence, Anderson appeals arguing the evidence presented at trial was legally insufficient to support his conspiracy conviction. Finding no error, we affirm.

FACTS

¶ 2. On September 14, 2006, officers with the Horn Lake Police Department met with their confidential informant, Harlyn Holt, to arrange for Holt to purchase narcotics from Anderson and his niece, Kristina Anderson. At the “pre-buy” location, the police outfitted Holt with audio and video surveillance equipment. The police also gave Holt marked dollar bills to use in the buy. The police searched Holt’s person and his automobile to ensure that he had no drugs or money other than the money that was provided by the police.

¶ 3. Prior to this meeting, Holt and Kristina had been exchanging text messages regarding Holt’s desire to purchase hydrocodone, in the form of Lortab pills, from Kristina and Anderson. Kristina instructed Holt that the hydrocodone would be available at her house once Anderson got off of work that day at approximately 5:30 p.m. After his “pre-buy” meeting with the police, Holt went to Kristina’s house. He waited approximately one hour before Anderson arrived. When Anderson arrived, he and Kristina went into a back room of the house. Kristina returned with fifteen hydrocodone tablets, and Anderson then walked outside to his truck and returned with another hydrocodone tablet.

¶ 4. Approximately forty minutes after Anderson arrived at Kristina’s house, Holt left the residence and met the officers at a “post-buy” meeting. Holt then turned over the bag of phis to the police. The pills were subsequently turned over to the Mississippi Crime Laboratory and tested. The results revealed that the fifteen “My-lan” pills initially given to Holt were confirmed to be hydrocodone and acetaminophen; the remaining “Watson” pill was preliminarily tested, but it could not be confirmed and verified to be hydrocodone.

¶ 5. Anderson was arrested and indicted for conspiracy to sell a controlled substance and sale of a controlled substance. A jury found Anderson guilty of the conspiracy to sell a controlled substance and not guilty for the sale of a controlled substance. The trial court sentenced Anderson to five years in the custody of the MDOC. Anderson filed a post-trial motion for a judgment notwithstanding the verdict, which the trial court denied.

¶ 6. From that judgment, Anderson timely appeals.

Motion for a Directed Verdict and a Judgment Notwithstanding the Verdict

¶ 7. “A motion for a directed verdict ..., as well as a motion for a judgment notwithstanding the verdict, challenges the [legal] sufficiency of the evidence.” Bonner v. State, 962 So.2d 606, 609(¶ 10) (Miss.Ct.App.2006) (citing Wetz v. State, 503 So.2d 803, 807 (Miss.1987)). In Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005), our supreme court reiterated the standard of review for legal sufficiency of the evidence, explaining as follows:

[T]he critical inquiry is whether the evidence shows beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction. However, this inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Citations and quotations omitted). “[I]f a review of the evidence reveals that it is of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense, the evidence will be deemed to have been sufficient.” Id. (citations omitted).

¶ 8. Mississippi Code Annotated section 97-1-1 (Rev.2006) makes it unlawful for “two (2) or more persons [to] conspire ... [t]o commit a crime[.]” Our supreme court has defined the act of conspiracy to mean the “combination of two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose unlawfully, the persons agreeing in order to form the conspiracy. The offense is complete without showing an overt act in furtherance of the conspiracy.” Brown v. State, 796 So.2d 223, 225(¶ 9) (Miss.2001) (quoting Peoples v. State, 501 So.2d 424, 428 (Miss.1987)). The offense is complete upon formation of the agreement. Vickers v. State, 994 So.2d 200, 212(¶ 39) (Miss.Ct.App.2008). “The agreement need not be formal or express, but may be inferred from the circumstances, particularly by declarations, acts and conduct of the alleged conspirators.” Id. (citation omitted). Also, “[conspiracy is a complete crime in itself which does not merge into the completed offense.” Stovall v. State, 873 So.2d 1056, 1058(¶ 12) (Miss.Ct.App.2004) (citing State v. Thomas, 645 So.2d 931, 933 (Miss.1994)).

¶ 9. This Court addressed a similar scenario to the case at bar in Bonner. There, Billy Watson Bonner was convicted of conspiracy to sell methamphetamine and of the sale of methamphetamine. Bonner, 962 So.2d at 608(¶ 1). Bonner appealed his conviction. He argued that the trial court erred in denying his motion for a judgment notwithstanding the verdict “because the State [had] failed to produce sufficient evidence establishing that he and [his co-conspirator] entered into a common plan to sell methamphetamine and that they knowingly intended to further that common purpose.” Id. at (¶ 6). At trial, Bonner’s co-conspirator testified that the two had entered into an agreement to sell methamphetamine, and that he had purchased methamphetamine from Bonner on prior occasions. Id. at 610(¶ 12). This Court held that this testimony established that Bonner knew his co-conspirator would bring potential customers to his house to purchase illegal drugs. Id. In viewing the legal sufficiency of the evidence, this Court found that the jury “could have found the essential element of conspiracy beyond a reasonable doubt.” Id. at (¶ 13).

¶ 10. Similarly, the supreme court affirmed a conviction of conspiracy to distribute cocaine in Temple v. State, 498 So.2d 379 (Miss.1986). There, the supreme court found the testimony of the defendant’s intermediary, who had purchased cocaine from the defendant and then attempted to sell it to an undercover police officer, coupled with testimony from the police officers involved in surveillance of the intermediary, were sufficient to support defendant’s conviction of conspiracy to distribute cocaine. Id. at 381.

¶ 11. This Court has also found that the evidence was legally sufficient to support a conspiracy conviction where the accomplice testified that he knew the defendant was asking him to buy pseudoephedrine because of their history of cooking methamphetamine together, and police officers testified that the defendant had admitted to them that the purpose of his trip to the store had been to purchase pseudoephed-rine for purposes of “cooking” methamphetamine. See Vardaman v. State, 966 So.2d 885, 890(¶ 18) (Miss.Ct.App.2007).

¶ 12. In Nobles v. State, 879 So.2d 1067, 1072(¶ 12) (Miss.Ct.App.2004), where a defendant was charged, inter alia, with the crime of conspiracy, an undercover narcotics agent testified that the defendant had sold him the crack cocaine used in the transaction with a confidential informant. This Court found that the evidence adduced by the agent’s testimony that a co-perpetrator directed him to the defendant at the time of the “buy-bust,” coupled with the fact that when the defendant was arrested, $550 in cash — of which $500 was marked as state funds, and a plastic bag containing cocaine were found in his pocket, more than sufficiently supported the jury’s finding of guilt. Id.

¶ 13. Here, Anderson submits that no direct evidence was presented at trial establishing that he had communicated directly with Kristina regarding the sale of hydrocodone pills on September 14, 2006. However, a conspiracy agreement does not have to be formal or expressed; it may be inferred from the circumstances, in particular, the acts and conduct of the alleged conspirators. Vickers, 994 So.2d at 212(¶ 39).

¶ 14. In viewing the evidence in this case in the light most favorable to the prosecution, we find it amply supports that Anderson and Kristina conspired to sell hydrocodone to Holt on September 14, 2006. Similar to the co-conspirators and intermediaries testifying in Bonner, Var-daman, and Temple, Kristina testified that she and Anderson had a common plan for selling hydrocodone to Holt. Kristina testified that she would call Anderson when someone needed Lortabs, and if he had any, he would bring them to her to sell. After being recalled by the defense as an adverse witness, Kristina testified again that “on September 14, 2006, [she] and [Anderson] had a standing agreement on how [she was] selling his pills.”

¶ 15. Additionally, as stated above, Holt and Kristina exchanged the following text message on the day of the sale:

1:19: It is usually between 5:30 and
6:30[,] depends what time he gets off.
1:19: I just left him a message to call me. If I do not hear from him by 4:45,1 am calling back!
1:51: Just talked to Rich. He is coming when he gets off work! Will you have the 25 for those or do you have to get it?
2:08: I told him I needed a few. He should have what I need! I have got to make some calls and try and make some money!

Kristina testified that when she stated “he,” “him,” and “Rich” in these text messages, they were all referring to Anderson. Kristina also testified that the text messages reflected the fact “that the pills ... [which] were to be sold to Holt were only going to be able to arrive and be at [her] house for sale [when Anderson] got there.”

¶ 16. The video surveillance tape showed Holt waiting around Kristina’s house with her and her children for approximately one hour. When Anderson arrived, he and Kristina proceeded to the back of the house, where they remained for several minutes. Kristina emerged from the back of the house and gave Holt a handful of “Mylan” pills, which Holt placed in a bag. Holt then gave Kristina money for the pills. Kristina told Holt that Anderson had to go and retrieve one other “Watson” pill from his truck. The video tape shows Anderson coming back into Kristina’s house, handing Kristina an object, Kristina handing the object to Holt, and Holt placing the object in the bag of pills. Anderson then left Kristina’s house.

¶ 17. There was additional evidence of a conspiracy presented besides Kristina’s testimony. On the day of his arrest, Anderson gave a handwritten statement regarding his arrest, which read: “I was selling Lortabs to some of my friends to help pay for my Lortabs.” Anderson’s brother admitted during the trial that Anderson had been selling various pills to buyers in his house. Lastly, the pills that Holt had purchased from Kristina were turned over to the police at the “post-buy” location, and all but the “Watson” pill were confirmed to be hydrocodone.

¶ 18. Kristina’s testimony, coupled with the other evidence presented at trial, sufficiently supports the jury’s finding that she and Anderson engaged in a common plan or scheme to sell hydrocodone pills to willing buyers. Accordingly, the trial court did not err in denying Anderson’s motion for a directed verdict and his motion for a judgment notwithstanding the verdict. This issue is without merit.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF CONSPIRACY TO SELL A CONTROLLED SUBSTANCE AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A $1,000 FINE, $125 RESTITUTION TO THE HORN LAKE POLICE DEPARTMENT, AND $200 TO THE MISSISSIPPI CRIME VICTIMS’ COMPENSATION FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR.


source: Caselaw Access Project

author: ISHEE, J„

license: Public Domain

text:
    COVENANT HEALTH & REHABILITATION OF PICAYUNE, LP and Covenant Dove, Inc., Appellants v. Nellie LUMPKIN, by and Through Fred LUMPKIN, Next Friend, Appellee.
    No. 2007-CA-00449-COA.
    Court of Appeals of Mississippi.
    Dec. 15, 2009.

      John L. Maxey, Paul Hobart Kimble, Jackson, attorneys for appellants.
    F.M. Turner, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

ISHEE, J„

for the Court.

¶ 1. Covenant Health & Rehabilitation of Picayune, LP and Covenant Dove, Ine.’s (Covenant Health), motion for rehearing is granted; the original opinion is withdrawn, and this opinion substituted therefor. This case turns upon the effect of an arbitration agreement contained within a standard nursing home admission’s contract required by Covenant Health for nursing home admissions. After this Court issued its initial opinion, and while this case was pending in this Court upon the motion for rehearing, the supreme court issued Covenant Health & Rehabilitation of Picayune, LP v. Estate of Moulds, 14 So.3d 695 (Miss.2009). As is discussed in the final issue addressed in this opinion, Estate of Moulds compels this Court to grant the Lumpkin’s motion for rehearing and affirm the Pearl River Circuit Court’s decision to refuse to compel arbitration.

¶ 2. Nellie Lumpkin, through her husband and next friend Fred Lumpkin, filed suit against Covenant Health seeking damages for personal injuries that allegedly occurred during her stay at its facility. Covenant Health subsequently moved to compel arbitration of the case based on the arbitration clause found in its standard admissions agreement. The circuit court refused to compel arbitration, finding the admissions agreement substantively unconscionable and void as a matter of law. Aggrieved, Covenant Health appealed, seeking enforcement of the arbitration provision. Lumpkin asked this Court to affirm the decision of the circuit court, and find that either: (1) no arbitration agreement was ever created, because Lumpkin’s daughter lacked capacity to bind Lumpkin to arbitration or, in the alternative, that the arbitration clause fails for lack of consideration; or (2) the arbitration clause is void due to fraud in the inducement and substantive unconscionability. In our original opinion, we rejected both arguments and reversed and remanded. However, in light of Estate of Moulds, we find that the requirement that Lumpkin’s claims be arbitrated, coupled with an additional unconscionable provision in the admissions agreement, rendered the arbitration clause unconscionable and unenforceable. We, therefore, affirm the judgment of the circuit court and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 3. On April 11, 2003, Lumpkin was admitted to the Picayune Convalescent Center (owned and operated by Covenant Health). She was accompanied by her daughter, Beverly McDaniel. Due to several illnesses, including Parkinson’s disease, psychosis, and dementia, which prevented Lumpkin from fully participating in the admissions process, McDaniel filled out all the admissions paperwork and signed the admissions agreement. That agreement contained, among other things, an arbitration clause requiring both parties to submit to arbitration in the event any dispute arose between them.

¶ 4. Lumpkin left the Picayune Convalescent Center on December 23, 2004. In November 2006, she filed suit against Covenant Health, alleging negligent treatment and malpractice during her stay at the center. On December 11, 2006, Covenant Health filed its motion to compel arbitration, which was based on the arbitration clause contained in the admissions agreement used at the time Lumpkin was admitted to the Picayune Center. In March 2007, the circuit court denied Covenant Health’s motion to compel arbitration, and it is from that ruling that Covenant Health appealed.

¶ 5. In our original opinion, we found that eight specific clauses of the admissions agreement were identical to clauses previously found unconscionable by the supreme court. Covenant Health & Rehab Picayune, L.P. v. Lumpkin, 2007-CA-00449-COA (¶ 22) (Miss.Ct.App. Mar. 9, 2009) (citing Covenant Health Rehab of Picayune, L.P. v. Brown, 949 So.2d 732, 787-41 (¶¶ 14-25) (Miss.2007)). However, we went on to find in light of relevant supreme court precedent that the arbitration agreement itself was enforceable. We held:

We cannot, however, agree with the remainder of Lumpkin’s argument, that because of these unconscionable provisions we must void the entire contract, or that the arbitration clause as a whole should be voided. In Brown, when faced with exactly the same unconscionable language, the supreme court chose to merely sever the unconscionable portions of the admissions agreement and the offending portion of the arbitration clause, and enforce the remaining sections, including compelling the parties to arbitrate. Given the striking similarity of these two cases, including the fact that they involve substantially identical admissions agreements, we are compelled to do the same here as the supreme court did in Brown. Accordingly, we find that the admissions agreement, absent the offending language, is substantively conscionable and the parties are bound by it, including its arbitration clause.

Lumpkin, 2007-CA-00449-COA at (¶ 23).

¶ 6. Subsequent to our initial decision, the supreme court decided Estate of Moulds, in which it held that an arbitration agreement identical to that present in this case was unconscionable and, therefore, unenforceable. Estate of Moulds, 14 So.3d at 703(¶ 26). Accordingly, we must reexamine our analysis of this issue in light of the supreme court’s guidance.

DISCUSSION

¶ 7. This Court reviews orders denying motions to compel arbitration de novo. Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507, 513 (¶9) (Miss.2005). Although not directly raised by either party in this case, as a threshold issue this Court must determine whether the Federal Arbitration Act (FAA) controls the arbitration agreement presented here. Our supreme court has previously held that “singular agreements between care facilities and care patients, when taken in the aggregate, affect interstate commerce.” Id. at 515 (¶ 16). In this case, as in Vicksburg Partners, “since the arbitration clause is a part of a contract (the nursing home admissions agreement) evidencing in the aggregate economic activity affecting interstate commerce, the [FAA] is applicable....” Id. at 515-16 (¶ 18). Nevertheless, even though the FAA is applicable, “applicable contract defenses available under state contract law such as fraud, duress, and unconscionability may be asserted to invalidate the arbitration agreement without offending the [FAA].” Estate of Moulds, 14 So.3d at 699(¶ 9) (quoting East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (¶ 10) (Miss.2002)).

¶ 8. Having made the determination that the arbitration agreement in this case is governed by the FAA, we must next determine if that arbitration agreement is valid. Again we are guided by our supreme court, which has stated that: “In determining the validity of a motion to compel arbitration under the FAA, courts generally conduct a two-pronged inquiry. The first prong has two considerations: (1) whether there is a valid arbitration agreement and (2) whether the parties’ dispute is within the scope of the arbitration agreement.” Taylor, 826 So.2d at 713 (¶ 9). The second prong involves an inquiry into “whether legal constraints external to the parties’ agreement foreclosed arbitration of those claims.” Id. at 713 (¶ 10) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626,105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)).

¶ 9. With respect to the first prong of the analysis outlined above, “[t]o determine whether the parties agreed to arbitration, we simply apply contract law.” Terminix Int’l, Inc. v. Rice, 904 So.2d 1051, 1055 (¶ 9) (Miss.2004). Regarding this prong of our inquiry, Lumpkin asserts that her daughter, Beverly, lacked the capacity to consent to arbitration as her healthcare surrogate and, in the alternative, that the arbitration clause is void because it lacked sufficient consideration. We address each of these issues below.

I. Beverly McDaniel possessed the capacity to bind her mother to arbitration.

¶ 10. Lumpkin asserts that her daughter, Beverly McDaniel, did not have the capacity to bind her to arbitration while acting as her healthcare surrogate under the Uniform Health-Care Decisions Act. Miss.Code Ann. §§ 41-41-201 to -229 (Rev.2009). Lumpkin does not dispute that McDaniel was, in fact, acting as her healthcare surrogate for the purposes of that section when she was admitted to the Picayune Convalescent Center.

¶ 11. Our supreme court addressed this very issue in Brown. In Brown, the plaintiffs, as administrators of the estate of their deceased mother, filed a wrongful-death suit against the nursing home in which their mother resided prior to death. Brown at 735 (¶ 1). An adult daughter of the deceased signed the admissions agreement as the “responsible party” for her mother upon admission to the facility. Id. The defendants filed a motion to compel arbitration based on the admissions agreement, and the trial court denied that motion. On appeal, the supreme court held that the adult daughter of the patient, acting as a healthcare surrogate, had the authority to contractually bind her mother in healthcare matters under our Uniform Health-Care Decisions Act. Id. at (¶ 3).

¶ 12. In reversing the trial court’s denial of the motion to compel arbitration in Brown, the supreme court implicitly upheld that the surrogate’s authority to bind the patient extended to the arbitration clause in the admissions agreement. In this case, because Lumpkin does not dispute that her daughter was acting as her healthcare surrogate for the purposes of the Uniform Health-Care Decisions Act, we see no reason to depart from the supreme court’s holding in Brown. Therefore, we find that a healthcare surrogate, acting under the provisions of the Uniform Health-Care Decisions Act, is capable of binding his or her patient to arbitration. Accordingly, we find that Lumpkin’s argument on this issue is without merit.

II. The arbitration clause does not fail for lack of consideration.

¶ 13. Lumpkin also asserts that the arbitration clause should fail for lack of consideration. She relies solely on the affidavit of Keri Ladner, the facility administrator for Covenant Health, in making this argument. Lumpkin points to Ladner’s statement, that Lumpkin would not have been refused admission to the facility had she objected to the arbitration agreement, as evidence that the arbitration clause lacked consideration; therefore, the arbitration clause should be stricken from the admissions agreement.

¶ 14. We first note that Lad-ner’s statements are irrelevant to the issue of consideration. The only thing her statements represent is an admission that, in retrospect, Lumpkin’s daughter could have entered into a more beneficial contract for her mother had she bargained for it. Simply because one party to a contract later admits that the other party could have successfully bargained for more beneficial terms at the time the contract was formed does not mean that the element of the contract not bargained for is void for lack of consideration. In any contract, “[a]ll that is needed to constitute a valid consideration to support an agreement or contract is that there must be either a benefit to the promissor or a detriment to the promisee. If either of these requirements exist, there is a sufficient consideration.” Theobald v. Nosser, 752 So.2d 1036, 1040 (¶ 15) (Miss.1999).

¶ 15. Second, even if Ladner’s statements were relevant to this issue, this Court would be prevented from considering them by the parol evidence rule. It is a well-settled principle of contract law that “a written contract cannot be varied by prior oral agreements. Moreover, as an evidentiary matter, parol evidence to vary the terms of a written contract is inadmissible.” Carter v. Citigroup, Inc., 938 So.2d 809, 818(¶ 41) (Miss.2006) (quoting Stephens v. Equitable Life Assurance Soc’y of the United States, 850 So.2d 78, 83 (¶ 14) (Miss.2003)). Although parol evidence is sometimes admissible when there has been, among other things, a showing that a contract contains ambiguous language, here there has been no such showing. Neither party has even suggested that there is any ambiguity in the agreement.

¶ 16. Without such a showing, we must look to the agreement of the parties in order to determine whether there was sufficient consideration. Again, in any contract, “[a]ll that is needed to constitute a valid consideration to support an agreement or contract is that there must be either a benefit to the promissor or a detriment to the promisee. If either of these requirements exist, there is a sufficient consideration.” Theobald, 752 So.2d at 1040 (¶ 15).

¶ 17. Here, there is clearly sufficient consideration to support the arbitration agreement. Both parties undertook duties toward one another under the admissions agreement. Covenant Health promised to provide care and assistance to Lumpkin. Lumpkin promised to pay Covenant Health for its service. The arbitration clause was one portion of that exchange, and it obligated both parties to arbitrate any dispute between them. The mutuality of exchange found throughout the admissions agreement provides ample evidence that there was sufficient consideration to support the arbitration clause; therefore, we find that the arbitration clause does not fail for lack of consideration.

III. The dispute is within the scope of the arbitration clause.

¶ 18. Although not directly addressed by either party in this appeal, under our standard of review in this case, this Court must determine that the dispute between the parties falls within the scope of the arbitration agreement in order to compel arbitration. To do so, we look to the language of the arbitration clause itself. In this case, that language is very clear. The arbitration clause states that “[t]he Resident and Responsible Party agree that any and all claims, disputes, and/or controversies between them and the Facility or its Owners, officers, directors, or employees shall be resolved by binding arbitration.... ” Clearly, the arbitration clause was meant to apply to any dispute, regardless of its nature, that arose between the facility and Lumpkin, including her current claims of negligence and malpractice. Consequently, we find that the dispute between Lumpkin and Covenant Health falls within the scope of the arbitration clause.

IV. The arbitration clause does not violate any external legal constraints.

¶ 19. Having determined that a valid arbitration agreement exists, and that the current dispute falls within the scope of that agreement, we now turn to the second prong of the test set out in East Ford, which involves an inquiry into “whether legal constraints external to the parties’ agreement foreclose arbitration of those claims.” East Ford, 826 So.2d at 713 (¶ 10) (quoting Mitsubishi Motors Corp., 473 U.S. at 626, 105 S.Ct. 3346). The supreme court has stated that, under the second prong of the East Ford test, “applicable contract defenses available under state contract law such as fraud, duress, and unconscionability may be asserted to invalidate the arbitration agreement without offending the [FAA].” Id.

¶ 20. Lumpkin specifically asserts two of the defenses listed above, fraud and substantive unconscionability, in her argument to sustain the ruling of the trial court and void the arbitration clause.

A. Beverly was not fraudulently induced into signing the admissions agreement.

¶ 21. Lumpkin argues that her daughter, ■ Beverly, was fraudulently induced into signing the admissions agreement. She again relies on the affidavit of Ladner, the facility administrator, and the fact that Ladner stated that acceptance of the arbitration clause was not a necessary precondition to her admittance to the facility. This statement does not give rise to a defense of fraud. As a contract defense, “[f]raud in the inducement arises when a party to a contract makes a fraudulent misrepresentation, i.e., by asserting information he knows to be untrue, for the purpose of inducing the innocent party to enter into a contract.” Lacy v. Morrison, 906 So.2d 126, 129 (¶ 6) (Miss.Ct.App.2004).

¶ 22. The defense of fraud in the inducement would be appropriately raised if, for instance, Ladner had made material misrepresentations to Beverly when she signed the admissions agreement, and those misrepresentations had been meant to, and did, induce Beverly to sign the agreement. However, the facts indicate that this is not what happened. As we noted above, all that Ladner’s statements demonstrate is that Beverly could have potentially bargained for a better deal from the facility, i.e., one that did not include the arbitration clause. However, the admissions agreement itself did not contain any false information; it simply contained terms that could have been altered had Beverly attempted to do so. The fact that she failed to bargain for those terms does not constitute fraud any more than it constitutes a lack of consideration; therefore, Beverly was not fraudulently induced into signing the admissions agreement.

B. The arbitration clause is substantively unconscionable.

¶ 23. We come now to the final issue raised in this appeal. Lumpkin correctly points out that the admissions agreement her daughter signed contains several clauses that have exactly the same language as clauses in other nursing home admissions agreements that our supreme court has explicitly held are unconscionable. In fact, the admissions agreement in this case appears to be identical to the one at issue in Brown, discussed above. Specifically, the following sections were held to be unconscionable in Brown: (1) the language in section C5 requiring forfeiture by the resident for all claims except those for willful acts, (2) the language in section C8 waiving liability for the criminal acts of individuals, (3) the “grievance resolution process” set out in sections E5 and E6, (4) the language limiting the recovery of actual damages in section E7, (5) the language limiting the recovery of punitive damages in section E8, (6) the language in section E12 requiring the resident to pay all costs if the resident attempts to avoid or challenge the grievance resolution process, and (7) the language of section E16 that purports to change the statute of limitations were all held to be unconscionable in Brown. Moreover, the last line of the arbitration clause itself contains language identical to language the supreme court struck from the arbitration clause that was at issue in Brown. Seeing no reason to depart from the supreme court’s findings in Brown, we agree with Lumpkin’s assertion that these clauses in her admissions agreement contain unconscionable language as well.

¶ 24. Nevertheless, in our original opinion, we found that while we had “misgivings” about the arbitration clause, in light of Brown’s holding that the cumulative effect of the unconscionable provisions did not render the entire contract unenforceable, and that an identical arbitration clause was enforceable, we reversed the circuit court’s holding that the arbitration clause at issue was unenforceable. Lumpkin, 2007-CA-00449-COA (¶¶ 21-23) (citing Brown, 949 So.2d at 741 (¶ 25)). In Moulds, the supreme court revisited this issue. The Moulds court surveyed out-of-state cases dealing with similar contracts. Moulds, 14 So.3d at 703-06 (¶¶ 26-34). Moulds then went on to hold that an arbitration clause identical to that found in the case at bar was unconscionable and unenforceable, and overruled its prior precedent. Id. at 706 (¶ 35).

¶ 25. In revisiting the issue of whether the arbitration clause at issue is unconscionable in light of Moulds, we hold that the circuit court did not err in refusing to compel arbitration, and we remand this issue to the circuit court for further proceedings consistent with this opinion.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY IS AFFIRMED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES AND ROBERTS, JJ., CONCUR. CARLTON AND MAXWELL, JJ., NOT PARTICIPATING.

      . See Brown, 949 So.2d at 737-41 (¶¶ 14-25) for an exhaustive discussion of why these particular aspects of the admissions agreement are unconscionable, including the language of the offending clauses. See also Vicksburg Partners, 911 So.2d at 525(¶ 48) and Pitts v. Watkins, 905 So.2d 553, 555-58 (¶¶ 9-20) (Miss.2005) for discussions of the unconscionability of similar terms found in other admissions agreements.


author: IRVING, J.,

text:
    Dashawn Romale THOMPSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CP-01682-COA.
    Court of Appeals of Mississippi.
    Dec. 15, 2009.
    Dashawn Romale Thompson (pro se), attorney for appellant.
    Office of Attorney General by: Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, C.J., IRVING AND CARLTON, JJ.
   IRVING, J.,

for the Court.

¶ 1. After the Circuit Court of the First Judicial District of Harrison County denied Dashawn Romale Thompson’s motion to suppress certain evidence obtained as a result of a search warrant, he pleaded guilty to two counts of possession of a controlled substance with intent to distribute. Nine months after pleading guilty, Thompson filed a motion to vacate and set aside his convictions and sentences. The circuit court denied the motion, leading to this appeal by Thompson wherein he alleges that the circuit court erred in denying his motion because the search warrant was invalid and his trial counsel was ineffective for failing to properly investigate the circumstances surrounding his arrest and for failing to appeal the circuit court’s denial of his motion to suppress.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. The evidence against Thompson was obtained pursuant to a search warrant filed by Agent Brian Sullivan of the Mississippi Bureau of Narcotics (MBN). In his affidavit attached to the search warrant, Agent Sullivan averred that a confidential source had informed officers that an individual known as “Wood” was selling cocaine and marijuana in his home in Gulf-port, Mississippi. Thereafter, on June 2, 2006, the source placed a recorded telephone call to Wood, wherein Wood advised the source that he could come to Wood’s house to purchase cocaine. Later the same day, the source went to Wood’s residence and purchased four hundred dollars’ worth of cocaine. The source also told officers that he saw several handguns at Wood’s home. Finally, the affidavit stated that Agent Sullivan had received information indicating that Wood was actually Thompson.

¶ 4. After a search warrant was issued, MBN agents searched Thompson’s home and found more than two pounds of marijuana, more than an ounce of cocaine, and firearms. On September 4, 2007, Thompson was indicted for possession of cocaine with intent to distribute and possession of marijuana with intent to distribute. The same indictment charged Thompson with possession, receipt, acquisition, or disposal of a stolen firearm. On October 5, 2007, Thompson filed a motion to suppress the evidence seized during the search of his home, asserting that the search warrant contained an invalid description of his house. After the court denied Thompson’s motion to suppress, Thompson entered into a plea agreement negotiated by his attorney. Pursuant to the agreement, Thompson entered a guilty plea to the possession charges and the gun charge was passed to the files.

¶5. Approximately nine months after entering his guilty pleas, Thompson filed a motion to vacate his convictions and sentences, alleging: (1) that his Fourth Amendment rights were violated when law enforcement officials entered his home without an arrest warrant, and (2) that his Sixth Amendment rights were violated as a result of his trial attorney’s ineffectiveness. He specifically alleged that his trial attorney was ineffective for failing to investigate Thompson’s arrest and for failing to appeal the decision of the circuit court denying his motion to suppress.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 6. “In reviewing a trial court’s decision to deny a petition for post[-]conviction relief this Court will not reverse such a denial absent a finding that the trial court’s decision was clearly erroneous.” Kirksey v. State, 728 So.2d 565, 567(¶ 8) (Miss.1999) (citing State v. Tokman, 564 So.2d 1339, 1341 (Miss.1990)). However, questions of law are reviewed de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

1. Invalidity of the Search Warrant

¶ 7. Thompson’s guilty plea waived the right to complain on appeal about the validity of the search warrant and the circuit court’s ruling regarding same, as there is no right of appeal from a valid guilty plea. Miss.Code Ann. § 99-35-101 (Supp.2009). Further, Thompson’s argument that the search warrant was invalid is tantamount to asserting that the State lacked sufficient credible evidence of his guilt because the evidence of his guilt was inadmissible. He waived this argument when he pleaded guilty. Had he wanted to contest the court’s ruling on the validity of the search warrant, he should have pleaded not guilty. In his petition to enter a plea of guilty, he was specifically advised that if he pleaded not guilty, the Constitution guarantees the right of appeal if he was convicted. He initialed the specific place in the petition where this information was provided, yet he pleaded guilty. We find no merit to this issue.

2. Ineffective Assistance of Counsel

¶ 8. Thompson asserts two separate issues regarding his counsel’s effectiveness. Specifically, he raises his counsel’s failure to investigate his arrest and his counsel’s failure to file an interlocutory appeal of the trial court’s decision denying the motion to suppress.

¶ 9. We were not presented on appeal with a transcript of the plea qualification hearing. However, in his order denying Thompson’s motion, the circuit court noted that “Thompson specifically stated at the plea hearing that he was satisfied his counsel has taken enough time to acquaint himself with the facts of his case. Additionally, in his petition to enter a guilty plea, Thompson stated he was satisfied with the advice and help given him by his counsel.” In fact, Thompson stated in the petition that he was “very satisfied” with the representation that his attorney had given him and that he believed that his attorney “has done all that anyone could do to counsel and assist him.”

¶ 10. In evaluating a claim of ineffective assistance of counsel, the United States Supreme Court adopted a two-pronged standard in Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), requiring first a showing that the counsel’s representation fell below an objective standard of reasonableness and second that there is a reasonable probability that, but for the counsel’s errors, the result of the proceeding would have been different. Our supreme court adopted the Strickland standard in Stringer v. State, 454 So.2d 468 (Miss.1984).

¶ 11. In its order denying Thompson’s motion, the circuit court found that Thompson gave no indication at the guilty plea hearing that he was dissatisfied with the services of his lawyer and swore in his petition to enter a guilty plea that he was satisfied with the services of his lawyer. It is difficult to understand how Thompson could have been satisfied with the services of his lawyer if he had requested that his lawyer appeal the circuit court’s order denying his motion to suppress evidence that he believed was illegally seized. In the motion that he filed in the circuit court, Thompson did not attach any affidavits asserting that his attorney refused to file an appeal of the court’s order denying his motion to suppress. In fact, he does not even claim that he made such a request of his attorney. The circuit court and this Court are entitled to credit the sworn testimony given by Thompson in his petition to plead guilty and in the plea qualification hearing over his belated accusation that his attorney was ineffective. Therefore, we find no merit to Thompson’s allegation that his trial attorney was ineffective.

¶ 12. Finding no error, this Court affirms the judgment of the Circuit Court of Harrison County.

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

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

      . The circuit court observed that Thompson's motion appeared to be a motion for post-conviction relief. Apparently, the circuit court treated it as such, as the court would have been without jurisdiction otherwise. This is so because the term of court in which Thompson was convicted had long since ended.


author: BOLIN, Justice. LYONS, Justice

text:
    Ex parte State of Alabama (In re STATE of Alabama v. Mark Dewayne ADAMS).
    1070920.
    Supreme Court of Alabama.
    March 6, 2009.
    Troy King, atty. gen., and Stephen N. Dodd, asst. atty. gen., for petitioner.
    Donald A. Chapman, Decatur, for respondent.

       Justice Shaw was a member of the Court of Criminal Appeals when that court considered this case.

   BOLIN, Justice.

Mark Dewayne Adams was indicted for felony driving under the influence of alcohol (“DUI”) after having been convicted three or more times of DUI, a violation of § 32-5A-191(h), Ala.Code 1975. Before trial, his counsel presented oral motions based on the following arguments: (1) that the circuit court did not have jurisdiction because the current offense was not a felony due to the fact that three of Adams’s four prior DUI convictions were in the municipal court; (2) that, if the circuit court did have jurisdiction, three of the four prior convictions could not be used to elevate the current offense to a felony because those convictions were in the municipal court; and (3) that two of the three municipal court convictions could not be used for enhancement for the additional reason that they were outside the five-year period specified in the 2006 amendment to § 32-5A-191. The circuit court entered a written order stating that “the prior DUI municipal court convictions cannot be used to enhance pursuant to the holding in [Ex parte Bertram, 884 So.2d 889 (Ala.2003) ].” The State appealed. A majority of the Court of Criminal Appeals dismissed the State’s appeal on the ground that the State did not have the right to appeal from the circuit court’s ruling because the circuit court did not dismiss the charge. State v. Adams, [No. CR-06-1184, February 1, 2008] (Ala.Crim.App.2008). We granted certiorari review in order to determine whether the Court of Criminal Appeals erred in dismissing the State’s appeal.

In Alabama, the State has a limited right to appeal in a criminal case. See §§ 12-12-70, 12-22-90, and 12-22-91, and Rule 15.7, Ala. R.Crim. P. The State can appeal a pretrial ruling holding a statute unconstitutional, suppressing evidence, dismissing the charges, quashing an arrest or search warrant, or granting a habeas corpus petition and ordering an individual released from custody. Rule 15.7 governs pretrial appeals by the State, and it provides for an appeal to the Court of Criminal Appeals from a pretrial order of the circuit court “dismissing an indictment, information, or complaint (or any part of an indictment, information, or complaint)

In the present case, the indictment charged that Adams

“did drive or was in actual physical control of a vehicle on, to-wit: September 3, 2005, while under the influence of alcohol to a degree which rendered him incapable of safely driving, and having been convicted three (3) or more times of driving under the influence, in violation of Section 32-5A-191(h) of the Code of Alabama.”

The circuit court’s order effectively eliminated that portion of the indictment noting Adams’s municipal DUI convictions. As Judge Welch stated in his dissent to the Court of Criminal Appeals’ unpublished memorandum, which Judge Wise joined: “[T]he court’s order had the effect of dismissing that portion of the indictment charging Adams with a felony offense.” The circuit court’s order prohibits the State from pursuing a felony DUI conviction because the court determined that Adams’s prior DUI convictions could not be used for enhancement purposes. By not treating the circuit court’s order as dismissing that portion of the indictment charging Adams with a felony, the Court of Criminal Appeals has denied the State appellate review of the merits of the circuit court’s pretrial order prohibiting the use of the prior DUI convictions for enhancement purposes. Because the circuit court retains jurisdiction over the remaining misdemeanor charges following the dismissal of a felony DUI charge, Davis v. State, 806 So.2d 404 (Ala.Crim.App.2001), the circuit court is not necessarily obligated to dismiss the entire indictment. Based on the Court of Criminal Appeals’ decision, the State is left without recourse in seeking appellate review of the circuit court’s pretrial order dismissing that portion of the indictment that elevates Adams’s DUI charge to a felony DUI charge.

Based on the foregoing, we hold that the Court of Criminal Appeals erred in dismissing the State’s appeal on the ground that the circuit court did not “dismiss” the charge, and we remand the cause to that court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and WOODALL, STUART, SMITH, PARKER, and MURDOCK, JJ., concur.

LYONS, J., dissents.

SHAW, J., recuses himself.

LYONS, Justice

(dissenting).

I respectfully dissent. Based on the reasoning in my dissent in Ex parte Marshall, 25 So.3d 1190, 1197 (Ala.2009) (Lyons, J., dissenting), I would affirm the order of the Court of Criminal Appeals dismissing the State’s appeal in this case.

      . The parties stipulated that Adams had the following prior convictions: (1) a November 8, 1990, conviction in the Athens municipal court; (2) a June 26, 1991, conviction in the Limestone County district court; (3) an April 2, 1992, conviction in the Athens municipal court; and (4) a March 3, 2003, conviction in the Falkville municipal court.

      . The circuit court apparently based its determination on this Court's decision in Ex parte Bertram, 884 So.2d 889 (Ala.2003). However, as Judge Welch aptly points out in his dissent, this Court in Ex parte Bertram did not address the issue of the applicability for enhancement purposes of municipal court DUI convictions; rather, this Court held in Ex parte Bertram that out-of-state DUI convictions cannot be used for DUI enhancement purposes under § 32-5A-191.

      . In Marshall v. State, 25 So.3d 1183 (Ala.Crim.App.2008), the Court of Criminal Appeals overruled Davis to the extent Davis provided that when the dismissal of a felony DUI leaves a misdemeanor DUI remaining to be resolved, the circuit court had the option of transferring the case to the district court for disposition of the misdemeanor charge. In Marshall, the Court of Criminal Appeals specifically held that a circuit court retains exclusive jurisdiction of a misdemeanor DUI offense when the State fails to prove the necessary prior DUI convictions to elevate the offense to a felony. This Court affirmed the judgment of the Court of Criminal Appeals in Ex parte Marshall, 25 So.3d 1190 (Ala.2009).


author: McMILLAN, Retired Appellate Judge.

text:
    STATE of Alabama v. Mark Dewayne ADAMS.
    CR-06-1184.
    Court of Criminal Appeals of Alabama.
    May 1, 2009.
    Troy King, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellant.

      Donald Alan Chapman, Decatur, for ap-pellee.
   On Remand, from the Alabama Supreme Court

McMILLAN, Retired Appellate Judge.

Pursuant to the Alabama Supreme Court’s decision in State v. Adams, 23 So.3d 1104 (Ala.2009), this court’s unpublished memorandum issued on February 1, 2008, which dismissed the State’s appeal, is hereby withdrawn.

On appeal, the State contends that the circuit court erred in ruling that Adams’s prior DUI convictions in the municipal court could not be used to enhance his sentence for the current DUI offense. In Ex parte Holbert, 4 So.3d 410 (Ala.2008), the Alabama Supreme Court held that pri- or in-state DUI convictions in a municipal court do not count toward the total number of prior DUI convictions necessary to constitute a felony DUI offense. Therefore, the trial court properly determined that Adams’s three municipal-court convictions could not be used to elevate his current offense to felony DUI.

For the foregoing reasons, we affirm the circuit court’s dismissal of the portion of the indictment alleging a felony DUI offense and remand the cause to that court for proceedings consistent with this opinion.

The foregoing opinion was prepared by Retired Appellate Judge H.W. “Bucky” McMillan while serving on active-duty status as a judge of this court under the provisions of § 12-18-10(e), Ala.Code 1975.

UNPUBLISHED MEMORANDUM OF FEBRUARY 1, 2008, WITHDRAWN; AFFIRMED AS TO DISMISSAL OF PORTION OF INDICTMENT; AND REMANDED.

AVISE, P.J., and AVELCH, AVTNDOM, and KELLUM, JJ., concur.


author: COBB, Chief Justice.

text:
    Ex parte David G. CLARK. (In re David G. Clark v. Michelle C. Clark).
    1071628.
    Supreme Court of Alabama.
    March 27, 2009.

      Thomas P. Ollinger, Jr., Mobile; and Wendy Brooks Crew, Birmingham, for petitioner.
    W. Gregory Hughes, Mobile, for respondent.
   COBB, Chief Justice.

On October 8, 2008, this Court granted the petition for a writ of certiorari filed by-David G. Clark to review the no-opinion affirmance by the Court of Civil Appeals of the trial court’s final order in this divorce case. Clark v. Clark (No. 2070264, June 27, 2008), — So.3d - (Ala.Civ.App.2008) (table). The trial court’s judgment of divorce awarded sole physical custody of the parties’ minor daughter to Michelle C. Clark, the mother; divided the marital property; and ordered David G. Clark, the father, to pay child support and periodic alimony. For the reasons stated herein, we reverse and remand the case for further proceedings consistent with this opinion.

A. Facts

I. The Parties

The father and the mother married on March 16, 1991. The daughter was born on September 9, 1998; the parties have no other children. On June 30, 2006, the father filed a complaint in the Baldwin Circuit Court seeking a divorce and custody of the daughter. On August 3, 2006, the mother filed an answer and a counterclaim for divorce and seeking custody of the daughter. The ease was tried on June 11-12 and August 9-11, 2007.

Generally, the witnesses who testified at trial, including Dr. Alice Frederick, the parties’ marriage counselor, described the father as a “rational,” “stable,” and “responsible” man who was an appropriate role model for the daughter and who could provide appropriate parental guidance and discipline. Although Dr. Frederick was not asked her opinion as to whether it would be appropriate to place the daughter in the physical custody of the mother, Dr. Frederick testified as follows regarding the possibility of the daughter’s being placed in the primary physical custody of the father:

“[Father’s counsel]: Hypothetically speaking, if [the father] were to be awarded primary residential custody of [the daughter] do you have an opinion whether [she] would grow up in a nurturing environment that was safe, secure, stable, progressive ... ?
“[Dr. Alice Frederick]: Yes. [The father] is a very stable and a very involved father and would do whatever he thought was in [the daughter]’s best interests.
“[Father’s counsel]: Would it in fact please you to see [the daughter] grow up under [the father’s primary residential care? ... I’m not asking you to choose one over the other. I was just asking you.
“[Dr. Alice Frederick]: Yes, I would like to see [the father] — I would like to see [the daughter] with [the father], [The daughter] reacts well with to [the father] and is very calm with [the father].”

The mother and her mother, the daughter’s maternal grandmother, testified, however, that the father was “cold and calculating” and that he would “push [the mother’s] buttons” — implying that he would deliberately cause the mother to lose her temper.

The father is a general manager for a hotel on the Gulf Coast. His work schedule is flexible, but at times requires him to work more than eight hours during a day and at night and on weekends. The mother is a partner in an antique business. When the daughter is in her custody, the mother is able to take the daughter with her to work and to have her come to the antique shop after school.

The evidence before the trial court indicated that the mother was a person who had difficulty controlling her anger. Patricia Babb and the mother both described their relationship as “best friends.” Babb, who had known the mother for 19 years, testified that the mother was prone to outbursts and fits of rage and that those fits of rage had grown more frequent in the “last couple of years” before the trial. Babb stated that she had recommended to the mother several times over the years, and more frequently in the year leading up to the trial, that the mother seek therapy to learn how to manage her anger. According to Babb, the mother did not like this suggestion and would not agree she needed anger-management therapy. Babb stated that the mother was most prone to fits of anger toward her immediate family, including the father. Babb characterized the mother as a “good mother” and explained that the mother was involved in the daughter’s school activities. Babb testified that the mother disciplined the daughter at times by yelling at her. Babb expressed her concern that some of the mother’s yelling at the daughter was inappropriate. In addition, Babb testified that the mother had expressed resentment of the daughter and the attention the daughter received from the father; however, the mother denied that she had told Babb that she resented her daughter.

George Bates, who resides across the street from the parties’ marital home, described the mother as follows:

“[The mother] has a rage about her that she has an anger problem, but I have also seen a soft side of her, too. But the rage will just come right out on a dime. Um, I mean, I have always liked [the mother]. I felt sorry for her because of, I felt like she had a rage and anger problem but, um, I really — I just don’t, ah, you know, understand the anger and the rage. I, I- — because it comes out and she gets mad at the world. And I mean mad.”

The mother’s first cousin, Patricia Fa-gan, testified that she had “fairly often” seen the mother lose control of her emotions, both in private and in public. Fagan testified that on several occasions she attempted to discuss with the mother the concept of anger management and the mother’s temper but that those discussions only infuriated the mother more. Fagan testified that the mother had seemed to be a good mother up until two years before the trial, which was when she last had contact with the mother. Fagan did not know about the quality of the mother’s parenting skills since that time because the mother and Fagan had not spoken in that time. Fagan testified that the mother had “a lot of resentment since [the daughter] was born,” but she also testified that she had not seen the mother discipline the daughter inappropriately.

Chris Solberg, the wife of one of the executives at the hotel where the father worked, testified that she saw the mother lose her temper with the daughter in 2004 when some of the families of hotel employees evacuated to a motel in Prattville in anticipation of a hurricane hitting the Gulf Coast. Solberg described the incident as follows:

“[Solberg]: We all tried to go to breakfast together.... My daughter actually had gone to the restaurant with [the mother] and [the daughter] and I was coming behind them. And the hotel was full, the restaurant was full, people were — they had a buffet set up so people were coming and going. And I was putting my stuff, my things down to sit down to eat breakfast. And I noticed [the daughter] was trying to get her mother’s attention. And, um, she kept saying, ‘Mommy, Mommy.’ She was trying to tell her something. And [the mother] was very uptight at that point, and said, grabbed [the daughter] and said, ‘Shut up.’ And grabbed her and shook her and said, ‘Just shut up. Shut up. What do you want?’ And [the daughter] just was, she was devastated. She started crying. My daughter was upset.
“[Father’s counsel]: How loud did she holler?
“[Solberg]: It was loud so the entire restaurant could hear. Because later people who were sitting on the other end of the restaurant made comments to me about it.”

However, when confronted with Solberg’s account of the incident at the motel in Prattville, the mother testified that she did “not remember shaking [her] daughter ever.”

Other witnesses testified that they had seen the mother drunk in public but that they had not seen the father drunk in public. In addition, several witnesses testified that they had seen the mother in a rage at the father and had heard her at the father’s workplace in the presence of other employees loudly referring to him as “stupid” and as an “idiot” who did not know how to manage the hotel. The mother denied that those incidents occurred. She also testified that, when the father had the daughter in his custody for visitation during the separation before the divorce, he would often arrange babysitters for the daughter because of his work schedule and that he fed the daughter “an awful lot of fast food.”

II. Initial Testimony of Dr. France Frederick

On June 11, 2007, Dr. France Frederick, a clinical psychologist specializing in child and family psychology, testified that she had had counseling sessions with the daughter seven times beginning November 16, 2006. At the time of Dr. France Frederick’s initial testimony, the daughter’s most recent counseling session with Dr. Frederick had been on June 4, 2007. Dr. Frederick testified that, at the outset of the therapy, the daughter “was extremely reserved and uncomfortable and very reticent to move away from her father ... physically.” Dr. Frederick testified that

“[the daughter’s] extreme reserve and lack of willingness to interact with another person is not what I normally see in a kid her age. Her withdrawal and shyness and discomfort, not that it’s particularly abnormal but ... that’s not what you expect, especially when she gets comfortable how quickly she sort of changes that demeanor and goes back and forth. So that’s notable.”

However, Dr. France Frederick characterized the daughter’s progress in therapy as follows:

“My professional opinion is that she has come a very long way. Her progress is notable. Her social skills are much more adequate. She expresses her emotional experiences, her feelings much more clearly. She, um, is much more outspoken about her needs rather than being as reserved and deferring to her parents.”

Dr. France Frederick characterized both the father and the mother as “fantastic parents.” She described the daughter as “a fantastically brilliant kid,” who has no disciplinary problems in school, who makes good grades, and who “does very well in an academic structure, in the classroom, with friends, with her teacher.” However, Dr. Frederick did not think that the daughter’s excellent performance in school was an indication that the daughter would benefit by continuing in the sole physical custody of the mother with visitation by the father as had been the status quo during the parties’ separation while the divorce action was proceeding. According to Dr. Frederick, the daughter was “doing excellent in school but part of that is her obsessive nature, that she would obsessively work very, very hard to be perfect to keep the tensions low.” Dr. Frederick pointed out that her first counseling session with the daughter occurred during the school year and while the daughter was in the sole physical custody of her mother, and Dr. Frederick noted that “[t]he child I saw had serious issues when I first started therapy with her.” The mother, however, testified at trial that the daughter had no behavioral or developmental problems.

Based on research with which Dr. France Frederick was familiar, as well as her familiarity with the daughter and the Clark family’s financial situation, Dr. Frederick strongly recommended that the father and the mother share joint physical custody of the daughter, with the daughter spending equal time in the physical custody of each parent. When asked if the daughter would be better off “waking up in the same home” she had been in for the last eight years of her life, Dr. Frederick testified:

“That would absolutely go against what I just recommended so absolutely I think she should share both parents. I do not think she is a kid who would function very well with just one of her parents. I think that would be very, very hard for her.”

On cross-examination by the mother’s counsel, Dr. France Frederick was further questioned about her custody recommendation:

“[Mother’s counsel]: But [the daughter’s] access [to her parents] doesn’t have to be equal. And that’s not — equal access is really not in the best interest of the child, is it?
“[Dr. France Frederick]: In some children it is not. For [the daughter] she functions much better when she has access to both parents.
“[Mother’s counsel]: But that’s not equal access. For example, she’s functioning well now, isn’t she?
“[Dr. France Frederick]: When she is solely with her mother it is very hard for her to open her mouth and express any emotions whatsoever.
“[Mother’s counsel]: I’m not saying it solves all problems. All this is cumulative. But at this point it would not be in the child’s best interest that she be required to move from the home. Do you agree with that?”
“[Dr. France Frederick]: I’m saying it’s in her best interest to live half of the time in her mother’s home and half the time in her father’s.
“[Mother’s counsel]: Do you think it’s important for that child to have structure and routine during the school year?
“[Dr. France Frederick]: I think it’s important that she have structure and routine. I think that ....
“[Mother’s counsel]: And isn’t it true that, that child is most likely to have structure and routine if she wakes up in the same bed every morning and goes to bed in the same bed every night during the school year and while school is in session?
“[Dr. France Frederick]: I think it is most disruptive if she has severe psychopathology because she withdraws into a very strange inner world in order to not deal with being separate from one or the other of her parents.”

Dr. France Frederick further testified that the daughter would suffer adverse consequences if the court did not follow her custody recommendation. Her testimony in this regard was as follows:

“[Dr. France Frederick]: This child is easily — she has a lot of trouble. When I first saw her, she had so little permission to be with her father. And she was — she acted very, very strangely. When she is comfortable with permission to be with either parent I have a different kind of kid that I work with. And [the daughter] is very clear about what a big deal that is to her. In spite of tension between her parents that she cannot stand, she chooses to still work with me because she has said, T know you really like both of my parents.’ And she likes that negotiation. And she knows that I like both of them and think they both really care about her, despite their issues. So I think—
“[Father’s counsel]: You’re very — you are almost on the verge of being emotional about this, aren’t you?
“[Dr. France Frederick]: I’m professional about it.
“[Father’s counsel]: I understand but you are very—
“[Dr. France Frederick]: Yes. I am very adamant.
“[Father’s counsel]: — fervently committed to this recommendation; are you not?
“[Dr. France Frederick]: I wouldn’t have made it if I weren’t. Yes.
“[Father’s counsel]: All right. And do I understand that there would be adverse consequences not — in your professional opinion — not to follow your recommendation?
“[Dr. France Frederick]: Or some real close form of it?
“[Father’s counsel]: Mm-hmm.
“[Dr. France Frederick]: There will be issues. ... And I think that [the daughter] will absolutely pay that price. “[Father’s counsel]: It’s not about winning or losing in court, is it?
“[Dr. France Frederick]: If it is, [the daughter] is going to be the one that loses and I am really, really clear about this.”

III. The Trial Court’s Refusal to Permit Recall of Dr. France Frederick for Further Testimony

On July 27, 2007, several weeks after Dr. France Frederick’s initial court appearance in June, while the trial was continued, an incident occurred during a visitation exchange that caused Dr. Frederick to change her professional opinion about whether shared physical custody was in the daughter’s best interest. The incident was videotaped by a neighbor. The videotape was entered into evidence, and the mother, the father, and another witness described the incident at trial. The incident occurred when the father went to the mother’s house to pick the daughter up for scheduled visitation. He attempted to retrieve the daughter’s clothing and luggage and place them in his car while the mother screamed at him and at another man present during the incident continuously, demanding money.

Numerous times during the exchange, the daughter attempted to stand between her parents, and she held her hands up between their faces. Each time, the mother pushed the daughter’s hands out of the way and continued screaming at the father, often positioning her face in close proximity to his. The father and another man present during the incident each physically removed the daughter from the middle of the argument, but the daughter returned and again placed herself between her parents and put her hands up between their faces. The father was calm during the incident, though he clearly voiced disagreement with the mother. The mother did not allow the father to have the daughter’s clothing and luggage until the father wrote the mother a check. The trial court described the July 27, 2007, incident as follows: “[T]he [mother] admitted that she yelled. And I don’t think it’s a good thing to hold the child hostage for money, but, you know, there is no doubt in my mind that’s what she did. So let’s move on and get onto something else.”

When the trial resumed in August 2007, the father sought to recall Dr. France Frederick to verify that the daughter had suffered “a relapse” as a result of the mother’s conduct during the July 27, 2007, visitation exchange. The trial court denied the father’s request to recall Dr. France Frederick on grounds that “the witness had already testified and that if the trial had not been interrupted the testimony wouldn’t have come in.” The father submitted an August 8, 2007, letter from Dr. France Frederick as an offer of proof regarding the anticipated substance of her testimony. The letter stated:

“Judge Partin, I have been working with [the daughter] since November 2006. At our last regularly scheduled session on 31 July 2007 there was a dramatic and disturbing change in [the daughter's demeanor and behavior. She behaved much the way she did in the first sessions in a manner that demonstrated severe withdrawal and lack of developmental appropriate communication. These are symptoms often seen in children with pervasive developmental disorder, or children that have been subjected to devastation and to trauma (post-traumatic stress disorder). I was extremely concerned and alarmed. I have not seen any of these behaviors in quite some time. And this regression was alarming.
“[The daughter’s father brought her to this session. I called her father into the session to try to help [the daughter] discuss what may have occurred. I asked her father had there been any conflict in [the daughter's presence? Her father told me that the recent visitation exchange went poorly. This visitation exchange occurred on Friday, July 27, 2007, which occurred between the date of my previous testimony at the prior hearing in June and the recommencement of that hearing this week. The exchange happened on the 27th of July and I saw [the daughter] on the 31st of July.
“When [the daughter] began therapy I had a very straightforward discussion with [the father and the mother] about the dynamics of [the daughter’s psychological functioning and the presence of some disturbing symptoms that were notably exacerbated when [the daughter] was subjected to any tension between her parents, yet seemed to abate dramatically when [the daughter] felt less stressed. I emphatically warned these parents against subjecting this child to any outbursts, tension, or conflicts they may deal with between themselves. I have since implored [the mother] to refrain from this kind of behavior.
“At the time of the conclusion of [the daughter’s session I inquired about this last visitation exchange. [The father] told me that he had a videotape of the exchange. I requested to view this videotape. The behaviors to which [the mother] blatantly subjected [the daughter] are very dangerous to this child. These behaviors are exactly the behaviors and violent displays of outrage that
I explained could be devastating to [the daughter].
“I have stated [my] bias toward a joint legal and physical custodial relationship, but the safety of this child must be considered first and foremost. My professional recommendation is that [the daughter] be in the primary custody of her father ... and that parent/child exchanges be structured without any communications between parents.
“Sincerely, France Frederick, PhD. Clinical Psychologist.”

IV. The Divorce Judgment and Subsequent Appellate Proceedings

On September 4, 2007, the trial court entered an order granting the parties a divorce on the ground of incompatibility of temperament. Further, the trial court awarded the mother sole physical custody of the daughter, divided the marital property, and ordered the father to pay alimony, child support, and other related expenses. On November 13, 2007, after the parties filed posttrial motions, the trial court entered an order modifying the September 4, 2007, order in several ways, including reducing the father’s periodic-alimony obligation from $2,000 per month to $1,700 per month.

On December 26, 2007, the father filed a notice of appeal to the Court of Civil Appeals. On June 27, 2008, the Court of Civil Appeals affirmed the judgment of the trial court, without an opinion. The father then petitioned for certiorari review of the Court of Civil Appeals’ decision, and this Court granted his petition. We now turn to the merits of this appeal.

B. Analysis

I. Whether the Trial Court Erred in its Custody Determination and in Refusing to Permit Recall of Dr. France Frederick

The father argues that the trial court’s order awarding the mother sole physical custody of the daughter must be reversed because, according to the father, the trial court erred in refusing to allow Dr. France Frederick to testify regarding an incident that occurred during a continuance in the trial and after her initial testimony in the case. In addition, the father argues that the trial court’s custody determination was erroneous because it was so unsupported by the evidence as to be plainly and palpably wrong. Before we begin our analysis of the father’s arguments, we first consider the applicable standards of review.

“Alabama law gives neither parent priority in an initial custody determination. Ex parte Couch, 521 So.2d 987 (Ala.1988). The controlling consideration in such a case is the best interest of the child.” Ex parte Byars, 794 So.2d 345, 347 (Ala.2001). See also Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994) (“In an action between parents seeking an initial award of custody, the parties stand on equal footing and no presumption inures to either parent. Hall v. Hall, 571 So.2d 1176 (Ala.Civ.App.1990). The trial court’s overriding consideration is the children’s best interests and welfare. Santmier v. Santmier, 494 So.2d 95 (Ala.Civ.App.1986).”). When an appellate court reviews a trial court’s child-custody determination that was based upon evidence presented ore tenus, the trial court’s decision is presumed to be correct and will be reversed only if the evidence so fails to support the custody determination that it is plainly and palpably wrong. Ex parte Fann, 810 So.2d 631, 633 (Ala.2001).

However, a trial court’s ruling on the admission of evidence is reviewed for an excess of discretion. Mock v. Allen, 783 So.2d 828, 835 (Ala.2000). A trial judge has wide discretion in determining whether to exclude or admit evidence. Wall-Mart Stores, Inc. v. Thompson, 726 So.2d 651, 655 (Ala.1998). Moreover, a trial court’s judgment will not be reversed for an error in admitting or excluding evidence unless the appellant demonstrates that “the error complained of has probably injuriously affected substantial rights of the parties.” Rule 45, Ala.R.App. P.; Atkins v. Lee, 603 So.2d 937, 946 (Ala.1992).

“In deciding whether to allow particular testimony, the court should focus on whether the testimony ‘tends to shed light on the main inquiry’ or draws attention from it.” Mason & Dixon Lines, Inc. v. Byrd, 601 So.2d 68, 72 (Ala.1992) (quoting Ryan v. Acuff, 435 So.2d 1244, 1247 (Ala.1983)). In matters of child custody, “[t]he best interests of the child are always of paramount importance.” Tims v. Tims, 519 So.2d 558, 559 (Ala.Civ.App.1987). “ ‘It is the court’s duty to protect the interest of the children with scrupulous care.’ ” Howard v. Howard, 608 So.2d 753, 755 (Ala.Civ.App.1992) (quoting Vaughn v. Vaughn, 473 So.2d 1090, 1091 (Ala.Civ.App.1985)); see also Ex parte Barnard, 581 So.2d 489, 490 (Ala.1991).

The father’s offer of proof established that the purpose of his attempt to recall Dr. France Frederick was to provide evidence that was not available when Dr. Frederick testified initially. Further, the offer of proof demonstrated that, upon recall, Dr. France Frederick would have testified that, in her opinion, placing the daughter in the physical custody of the mother (even under a joint-physical-custody arrangement) was not in the daughter’s best interest and, in fact, would seriously psychologically and developmentally harm the daughter by unduly exposing her to the mother’s inappropriate behavior and fits of rage. See Graham, 640 So.2d at 964 (noting factors for consideration in a custody determination include the “ ‘character, stability, [and] mental and physical health’ ” of the parents and “ ‘the interpersonal relationship between [the] child and each parent’ ” (quoting Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981))); Tims v. Tims, 519 So.2d at 559 (noting that a parent’s ability to provide for a child’s emotional and social needs is a factor in determining custody of the child). Thus, Dr. Frederick’s testimony upon recall would shed light upon the paramount inquiry before the court in this custody determination — what is in the daughter’s best interest? Moreover, there is no basis for a conclusion that her testimony would have been cumulative or that it would have otherwise detracted from that inquiry. Accordingly, we conclude that the trial court erred by refusing to allow the father to recall Dr. France Frederick to testify regarding a change in her custody recommendation in light of events that occurred and information gained after she first took the witness stand.

The trial court awarded the mother sole physical custody after erroneously refusing to allow the father to present testimony from Dr. France Frederick that would have had direct relevance to the propriety of placing the daughter in the mother’s sole physical custody. Under the circumstances, the father has met his burden of demonstrating that the trial court’s error in refusing to allow Dr. Frederick to be recalled as a witness prejudiced his rights. It follows that the Court of Civil Appeals’ decision to affirm trial court’s order granting the mother sole physical custody of the daughter is due to be reversed. In light of this holding, we need not further address the father’s argument that the Court of Civil Appeals erred in affirming the trial court’s custody determination because that determination was unsupported by the evidence. On remand, the trial court is to reconsider the custody award in light of all admissible evidence relevant to the best interests of the daughter.

II. Whether the Trial Court Erred in Ordering the Father to Pay the Mother $1,700 per Month in Alimony

The father argues that the trial court erred in ordering him to pay the mother $1,700 per month in alimony. The father makes $11,631.45 per month. After taxes and payment of expenses the trial court ordered him to pay (such as alimony, insurance, the note for the mother’s vehicle, the mortgage on the marital home, child support, etc.), the father is left with $2,039 per month. The mother makes $1,200 per month. After receiving alimony in the amount of $1,700 per month, she will have an income of approximately $2,900 per month. This amount is $742 in excess of the figure she submitted to the court as her monthly expenses (not including the sum the mother listed as monthly living expenses attributed to the daughter, which are more than exceeded by the $992 per month the father was ordered to pay in child support and the $320 per month in private-school tuition he was also ordered to pay). In addition, the mother was awarded both of the family cars, with the father to make all remaining car payments on the mother’s car; the ability to live in the marital home until she remarries or until the daughter reaches the age of majority, whichever occurs first, while the father was ordered to pay the $1,400 monthly mortgage payment and to pay for any repairs on the house exceeding $200; one-half the equity in the house existing at the time of the divorce; one-half the value of the father’s retirement accounts at the time of the divorce (with the exception of a relatively small sum the father acquired before the marriage); the couple’s undivided one-half interest in a rental house; one-half the value of certain bank accounts; and $8,500 in attorney fees.

We are mindful that we “ ‘must consider the issues of property division and alimony together when reviewing the decision of the trial court.’ ” Ex parte Drummond, 785 So.2d 358, 361 (Ala.2000) (quoting Bushnell v. Bushnell, 713 So.2d 962, 965 (Ala.Civ.App.1997)). It is clear from the trial court’s order that at least some of the division of property was based on the trial court’s decision to award the mother full physical custody of the daughter. For example, the trial court awarded the mother the right to live in the marital home until she marries or until the daughter reaches the age of majority, while the father was ordered to make the $1,400 monthly mortgage payment and to pay for any repairs to the house exceeding $200. We recognize that, under the facts of this case, the trial court’s further review of the custody issue has the potential of requiring changes in the award of child support, the distribution of the marital estate, and the alimony award.

Therefore, because we reverse the decision of the Court of Civil Appeals affirming the custody award, the award of alimony is due to be vacated. Accordingly, we reverse the judgment of the Court of Civil Appeals insofar as it affirmed the trial court’s award of alimony, and we remand the case to the Court of Civil Appeals with instructions to remand the case for the trial court to vacate the award of alimony. On remand, the trial court may reconsider alimony, child support, and property division to the extent that its review of the custody issue warrants further action on those issues.

C. Conclusion

For the reasons stated above, we reverse the decision of the Court of Civil Appeals affirming the trial court’s award of physical custody of the daughter to the mother, and we remand the case to that court to, in turn, remand the case to the trial court. On remand, the trial court is to reconsider the custody award in light of all admissible evidence relevant to the best interests of the daughter, including the evidence discussed in this opinion.

Further, we reverse the decision of the Court of Civil Appeals affirming the alimony award, and we remand this cause to the Court of Civil Appeals with instructions to remand the case for the trial court to vacate the alimony award. On remand, the trial court also may reconsider alimony, child support, and property division in the course of revisiting the custody issue.

REVERSED AND REMANDED WITH DIRECTIONS.

LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.

      . Pursuant to a pendente lite order entered by the trial court, the daughter remained with the mother and the father had visitation privileges during the time the parties' divorce case was pending in the trial court.

      . Dr. France Frederick is the daughter of Dr. Alice Frederick, the parties' marriage counselor.

      3. The mother was not present at the daughter's first two counseling sessions with Dr. France Frederick. The father was the parent who initially took the daughter to Dr. France Frederick for counseling. Subsequently, both the mother and the father cooperated in continuing to obtain Dr. France Frederick's services for the daughter.

      4. The mother testified regarding the incident:
      "[Father's counsel]: Visitation exchange, how long would it take, without any argument, for [the father] to come pick up [the daughter] and her overnight bag and clothes?
      "[Mother]: As fast as he could write a check.
      "[Father's counsel]: Without any argument about the check how long would it take? "[Mother]: A minute or two.
      "[Father’s counsel]: How long did this scene take in front of [the daughter]? "[Mother]: Well, that day it took him twenty minutes to write the check.
      "[Father's counsel]: And were you screaming at him in front of [the daughter]? "[Mother]: Yes, I was.

      "[Faiher’s counsel]: Was it in the best interest of your daughter to be exposed to you yelling at [the father]?
      "[Mother]: I would not be yelling at [the father] if he could just do what the Judge told him to do in status quo, which was pay the bills.
      "[Father's counsel]: And he says he paid you an extra thousand dollars already, didn't he?
      "[Mother]: Didn't I explain that already? He gave me 400 extra dollars.
      "[Father's counsel]: Well, there is a dispute between you and [the father]. Does [the daughter] need to be brought into a dispute, ma'am?
      "[Mother]: I don’t know how else to get money from him because he will not discuss it over the phone. He hangs up on me.”
      (Emphasis added.)

      . The mother cites Hagler v. Hagler, 50 Ala.App. 266, 269, 278 So.2d 715, 718 (Ala.Civ.App.1973), for the proposition that a court does not err in refusing to recall a previously examined witness when the anticipated area of inquiry on recall has been covered in the witness's earlier testimony. As the mother points out, the area of inquiry upon recall of Dr. France Frederick would technically have been the same "area of inquiry” covered in her initial testimony because her custody recommendation for the daughter would have been the subject of her testimony on both occasions. However, we find Hagler distinguishable because, in this case, the father sought to recall Dr. France Frederick to testify regarding events that occurred during a continuance in the trial and after her initial testimony and because of the need to modify her custody recommendation in light of those events and their impact on the daughter’s well-being. Hagler did not involve an attempt to recall a witness to give testimony that was not available when the witness first testified.

      . The mother argues that $1,000 of her monthly income is "imputed income.” However, she testified at trial that she could make $1,000 per month or more in her antique business, and she receives $200 per month from a one-half interest in a rental house.


author: BRYAN, Judge.

text:
    David G. CLARK v. Michelle C. CLARK.
    2070264.
    Court of Civil Appeals of Alabama.
    May 15, 2009.
    Thomas P. Ollinger, Jr., Mobile, for appellant.
    Keith B. Franklin of The Atchison Firm, P.C., Mobile, for appellee.
   BRYAN, Judge.

The prior judgment of this court — affirming, without an opinion, the Baldwin Circuit Court’s judgment — has been reversed and the cause remanded by the Supreme Court of Alabama. Ex parte Clark, 23 So.3d 1107 (Ala.2009). On remand to this court and in compliance with the supreme court’s opinion, we reverse the trial court’s award of physical custody of the parties’ daughter to the mother, and we remand this ease to the trial court to vacate the award of alimony and for further proceedings consistent with the supreme court’s opinion.

REVERSED AND REMANDED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.