author: FAIR, J., CARLTON, J.,

text:
    Michael JAMES and Associated General Contractors of Mississippi, Inc., Appellants v. Brian DEDEAUX and Constructor Services, Inc., Appellees
    NO. 2015-CA-01791-COA
    Court of Appeals of Mississippi.
    02/21/2017

      HARRISON COUNTY CIRCUIT COURT, HON. CHRISTOPHER LOUIS SCHMIDT, J.
    ATTORNEYS FOR APPELLANTS: MATTHEW JASON SUMRALL, ZACHARY MORI BONNER, BRIAN CHRISTOPHER WHITMAN, W. THOMAS MCCRANEY III
    ATTORNEYS FOR APPELLEES: MYLES ETHAN SHARP, ROBERT ELLIOTT BRIGGS III
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   FAIR, J.,

FOR THE COURT:

¶1. Michael James and Brian Dedeaux were working on a construction project at Keesler Air Force Base when the scissor lift Dedeaux was operating struck James, severely injuring him. At the time, James was an employee of Aladdin Construction Co., while Dedeaux was employed by Constructor Services Inc. (“CSI”). CSI had a contract with Aladdin to provide labor for the Keesler project.

¶2. James filed a negligence suit against Dedeaux and CSI in the Harrison County Circuit Court. On the defendants’ motion for summary judgment, the circuit court found Dedeaux had been “loaned” to Aladdin by CSI, limiting James to workers’ compensation benefits under the exclusivity provision of the Mississippi Workers’ Compensation Law. James appeals that decision.

STANDARD OF REVIEW

¶3. We review the grant of a summary judgment de novo. Davis v. Hoss, 869 So.2d 397, 401 (¶ 10) (Miss. 2004). Summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). “[Ejvidence is viewed in the light most favorable to the party opposing the motion.” Davis, 869 So.2d at 401 (¶ 10).

DISCUSSION

¶4. On appeal, James contends that the trial court erred in finding, as a matter of law, that Dedeaux was a borrowed servant of Aladdin—and thus that James was barred from suing in tort. James enumerates two separate issues, but both go to the propriety of summary judgment and are based on the same factual contentions, so we address them together.

¶5. “The borrowed-servant doctrine is a common-law rule that a servant, in general employment' of one person, who is temporarily loaned to another person to do the latter’s work, becomes, for the time being, the' servant of the borrower, although he remains in the general employment of the lender.” Gorton v. Rance, 52 So.3d 351, 359 (¶ 26) (Miss. 2011) (citation omitted). The Mississippi Supreme Court “has identified three criteria for determining whether one is a borrowed servant: (1) whose work is being performed, (2) who controls or has the right to control the workman as to the work being performed, and (3) [whether] the workman voluntarily accepted the special employment.” Id (citation omitted).

¶6. Here, there is no question that the work being done was Aladdin’s. The dispute, or alleged dispute, centers around the last two factors, who controlled the work and whether Dedeaux voluntarily accepted the special employment.

¶7. James points to the contract between CSI and Aladdin, which provided explicitly that CSI employees were not joint employees of Aladdin and that CSI would supervise them and control various aspects of their work. However, the evidence as to the actual conditions under which Dedeaux worked was quite different: he testified that CSI was a temporary employment agency and that he knew from the beginning that he would be assigned to an Aladdin job. On arrival, Dedeaux was evaluated by Aladdin’s supervisors, worked in an Aladdin crew and received work assignments from the Aladdin supervisors. He did the same work as the Aladdin employee crew members, was partnered with,an Aladdin employee, and used either his own personal tools or tools provided by Aladdin. At the time of the accident he had been working with the Aladdin crew for more than two months and was paired with James (an Aladdin employee). The two were framing a steel stud wall, taking turns framing either the top or the bottom part of the wall. Dedeaux used Aladdin’s nail guns, Aladdin’s chop saws, and Aladdin’s scissor lift, and was under Aladdin’s direct supervision. Dedeaux’s account was not contradicted by anyone with knowledge of the job site; in fact, James himself largely corroborated it. So far as the record reveals, Dedeaux’s situation at the job site was almost indistinguishable from that of the crew members who worked for Aladdin directly.

In his arguments on appeal, James focuses on the account of Ernie Huffine, who was the director of construction, for Aladdin and was deposed as Aladdin’s corporate representative under Mississippi Rule of Civil Procedure 30(b)(6), Huffine initially appeared to testify to the goings on at the job site in a way favorable to James’s positions—i.e., that CSI employees worked separately from . Aladdin employees, that they worked their own hours and were supervised by CSI supervisors, and the like. However, Huffine eventually made it clear that his descriptions were not based on personal or corporate knowledge of facts on the ground; he was describing the job site and the relationship between CSI and Aladdin as they were supposed to be according to the contracts between CSI and Aladdin and between Aladdin and the government. As was observed in Roberts v. Northrop Grumman Ship Systems, 108 So.3d 471, 474 (¶ 8) (Miss. Ct. App. 2013) (internal citations omitted), “the reality of the workplace and the parties’ actions in carrying out a contract can impliedly modify, alter or waive express contract provisions.” See also N. Elec. Co. v. Phillips, 660 So.2d 1278, 1282 (Miss. 1995).

¶9. James also points to general language in several decisions that speak to “ultimate control” or “authoritative control” as distinguished from “mere suggestion as to details or the necessary cooperation [in] a larger undertaking.” See, e.g., Jones v. James Reeves Contractors Inc., 701 So.2d 774, 777-79 (Miss. 1997) (noting that drawing the line on the question of control had “perplexed” courts for decades). From this, he argues that Dedeaux was never truly under the control of Aladdin, as CSI maintained the ultimate authority to terminate Dedeaux from its employment. But there is no need to resort to general statements of the law in this instance, as the Mississippi Supreme Court has held without reservation that temporary employment situations present a clear-cut case. In Northern Electric Company, 660 So.2d at 1282, the supreme court held: “Summary judgment is appropriate where a temporary employment agency assigns an employee to another employer and the employee performs the normal work of the second employer and is controlled and supervised by that employer.” See also Baldwin v. Kelly Servs. Inc., 121 So.3d 275, 278 (¶ 9) (Miss. Ct. App. 2013).

¶10. The evidence here shows that, notwithstanding contractual provisions to the contrary, CSI was a temporary employment agency and Dedeaux was working as a temporary employee of Aladdin at the time of James’s injury. Dedeaux was performing the normal work of Aladdin employees, using Aladdin’s tools, and was under Aladdin’s control and supervision. Dedeaux voluntarily accepted the special employment. Consequently he was a loaned servant of Aladdin at the time he injured James, and James is limited to workers’ compensation benefits as his exclusive remedy. We affirm the circuit court’s grant of summary judgment.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY, SECOND JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, WILSON AND GREENLEE, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY WESTBROOKS, J.

CARLTON, J.,

DISSENTING:

¶12. I respectfully dissent from the majority’s opinion. The trial court erred in granting summary judgment because the record reflects that questions of material fact exist in this case and that the trial court erroneously construed the facts and questions of disputed fact in the light most favorable to the Appellees, the movants for summary judgment. Such facts include Huffine’s testimony about the presence of a CSI supervisor at the Keesler site and Aladdin’s authority to remove CSI employees from the site. As the record reflects, the trial court found it was unclear whether CSI had a field foreman on the Keesler site, and the court determined that Aladdin possessed the authority to remove CSI employees if Aladdin felt the quality of the work was at issue. However, these factual questions constituted material questions of fact that preclude summary judgment in this case.

¶13. In accordance with the contract between CSI and Aladdin, CSI maintained an onsite supervisor for its CSI employees when CSI provided Aladdin with skilled labor for this project. The CSI supervisor coordinated any daily work with Aladdin’s supervisors, and then the CSI supervisor directed the CSI employees on the job site. Additionally, CSI retained the right to hire and fire its own employees. The record reflects that, pursuant to its contract with Aladdin, CSI maintained control and supervision over its CSI employees, and the CSI supervisor directed the details of the duties given to the CSI employees performing work on the Aladdin project at Keesler.

¶14. The borrowed-servant doctrine is refuted by the evidence in the record of CSI’s right to hire, fire, and control its own employees and by the evidence of CSI’s onsite supervision of its own employees. Thus, the trial court, upon granting summary judgment in favor of Dedeaux and CSI, erred by failing to construe the facts in the light most favorable to the nonmovant. In Quick Change Oil & Lube Inc. v. Rogers, 663 So.2d 585, 589 (Miss. 1995), the Mississippi Supreme Court stated:

The general rule, as applied at common law, is that a servant, in general employment of one person, who is temporarily loaned to another person to do the latter’s work, becomes, for the time being, the servant to the borrower, although he remains in the general employment of the lender. The borrower then becomes the employer to the exclusion of the lender.

(Citation omitted).

¶15. “[I]t is reversible error for a trial court to substitute its summary judgment for a jury’s consideration of disputed factual issues if material to the case.” Downs v. Choo, 656 So.2d 84, 86 (Miss. 1995) (citation omitted). Application of the borrowed-servant doctrine “depends upon the question of whose work is being performed, and if the lender is to escape liability, it must appear that the servant is under the borrower’s exclusive control and direction as to the work in progress.” Jones v. James Reeves Contractors Inc., 701 So.2d 774, 778 (Miss. 1997) (quoting Quick Change Oil & Lube, 663 So.2d at 589). Based on a review of relevant case-law and the facts in the present case, I find that the trial court erred in granting summary judgment to Dedeaux and CSI. As a result, I respectfully dissent from the majority’s opinion.

WESTBROOKS, J., JOINS THIS OPINION.

      . See Karpinsky v. Amer. Nat’l Ins., 109 So.3d 84, 88 (¶ 10) (Miss. 2013) (discussing the standard of review applied to summary-judgment motions).

        . See Karpinsky, 109 So.3d at 88 (¶ 9) (“We review the grant or denial of a motion for summary judgment de novo, viewing the evidence in the light most favorable to the party against whom the motion has been made.” (citation and internal quotation marks omitted)).

      . See also Jones v. James Reeves Contractors Inc., 701 So.2d 774, 778 (Miss. 1997) (discussing the borrowed-servant doctrine).


source: Caselaw Access Project

author: FAIR, J.,

license: Public Domain

text:
    Gary HUNT, Appellant v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, Appellee
    NO. 2016-CP-00674-COA
    Court of Appeals of Mississippi.
    02/21/2017

      RANKIN COUNTY CIRCUIT COURT, WILLIAM E. CHAPMAN III, J.
    GARY HUNT (PRO SE), ATTORNEY FOR APPELLANT.
    OFFICE OF THE ATTORNEY GENERAL, ATTORNEY FOR APPELLEE.
    BEFORE LEE, C.J., BARNES AND FAIR, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. Gary Hunt was incarcerated in the custody of the Mississippi Department of Corrections (MDOC). He lost 180 days of earned time after he was caught with contraband in violation of prison rules. Hunt’s appeal boils down to two issues: (1) whether the MDOC unlawfully revoked his earned time; and (2) whether the MDOC’s decision was supported by substantial evidence. Since his appeal, Hunt has been released on probation. Because a controversy no longer exists, we dismiss Hunt’s appeal as moot.

FACTS

¶ 2. In 2008, Hunt was convicted of aggravated assault and sentenced to serve eight years in the custody of the MDOC. In 2013, Hunt pled guilty to possession of a controlled substance in a correctional facility and was sentenced to serve seven years—two years in the custody of the MDOC and five years’ post-release supervision.

¶ 3. On December 16, 2015, Hunt was found with a cell phone. Hunt received a Rule Violation Report five days later. After a hearing, the hearing officer determined that Hunt had violated MDOC rules against possessing contraband. His punishment was the loss of 180 days’ served time.

¶ 4. Hunt appealed through the Administrative Remedy Program on January 10, 2016. The MDOC issued a “First Step Response Form,” denying Hunt’s appeal. About a month later, a “Second Step Response Form” was issued, again stating that Hunt’s appeal was denied. On April 18, 2016, Hunt petitioned the Rankin County Circuit Court for judicial review. The circuit court affirmed the MDOC’s decision. On May 4, 2016, Hunt appealed to this Court. He was released on probation on July 28, 2016.

DISCUSSION

¶ 5. “The decision of an administrative agency shall not be disturbed unless unsupported by substantial evidence; arbitrary or capricious; beyond the agency’s scope or powers; or violative of the constitutional or statutory rights of the aggrieved party.” Edwards v. Booker, 796 So.2d 991, 994 (¶ 10) (Miss. 2001) (citation omitted).

¶ 6. When Hunt filed his notice of appeal, there were issues to be resolved. Specifically, Hunt claimed his tentative release date had been illegally extended. Now that Hunt is out on probation, there is no controversy for our review. See Tucker v. Miss. Dep’t of Corr., 118 So.3d 690, 692 (¶ 7) (Miss. Ct. App. 2013). “[CJases in which an actual controversy existed at trial,] but the controversy has expired at the time of review, become moot.” J.E.W. v. T.G.S., 935 So.2d 954, 959 (¶ 14) (Miss. 2006) (quoting Monaghan v. Blue Bell Inc., 393 So.2d 466, 466-67 (Miss. 1980)). Further, a judgment by this Court “would be of no practical benefit to the plaintiff or detriment to. the defendant.” Beals v. State, 139 So.3d 776, 777 (¶7) (Miss. Ct. App. 2014) (citing Fails v. Jefferson Davis Cty. Pub. Sch. Bd., 95 So.3d 1223, 1225 (¶ 10) (Miss. 2012)). Therefore, we dismiss this appeal as moot.

¶ 7. THIS APPEAL IS DISMISSED AS MOOT. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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

      . Hunt was released on probation on July 28, 2016.

      . Hunt was initially sentenced to four years to serve with four years' post-release supervision. However, his post-release supervision was revoked in 2011 after he violated its conditions.


author: LEE, C.J.,

text:
    Dwight LOTT a/k/a Dwight L. Lott, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CP-00242-COA
    Court of Appeals of Mississippi.
    02/21/2017
    See 597 So.2d 627 and 135 So.3d 229.

      PEARL RIVER COUNTY CIRCUIT COURT, HON. ANTHONY ALAN MOZ-INGO, J.
    ATTORNEY FOR APPELLANT: DWIGHT LOTT (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS
    BEFORE LEE, C.J., BARNES AND FAIR, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. Dwight Lott contends his parole was unlawfully revoked, and he was entitled to a preliminary revocation hearing. We reverse and remand for an evidentiary hearing to determine whether Lott’s parole was unlawfully revoked.

PROCEDURAL HISTORY

¶ 2. In 1988, Lott pleaded guilty in the Pearl River County Circuit Court to murder and was sentenced to life in the custody of the Mississippi Department of Corrections. His conviction and sentence were affirmed in 1992. See Lott v. State, 597 So.2d 627, 631 (Miss. 1992). Lott was paroled in 2000, arrested in 2010 in Marion County, and charged in 2011 for attempted sexual battery and child molestation. Lott’s parole was revoked on October 12, 2011. The charges in Marion County were nolle prossed in 2012.

¶ 3. Lott filed a motion for postconviction relief (PCR) in the Greene County Circuit Court on October 15, 2012, arguing issues relating to his parole revocation. The trial court denied Lott’s motion, and Lott appealed. This Court dismissed Lott’s appeal for lack of jurisdiction, finding Lott had not filed his PCR motion in the county where he had been convicted (Pearl River County), and Lott had failed to obtain permission from the Mississippi Supreme Court to proceed in the trial court. Lott v. State, 135 So.3d 229, 230 (¶¶ 6-7) (Miss. Ct. App. 2014).

¶ 4. Lott subsequently filed an application with the Mississippi Supreme Court for leave to proceed in the trial court. On June 18, 2014, the supreme court issued an order dismissing Lott’s application as improperly filed. The supreme court noted that Lott was not required to seek permission since he had pleaded guilty in 1988 and his appeal in 1992 was not a direct appeal, but a PCR motion. See Miss. Code Ann. § 99-35-101 (Rev. 2015) (direct appeal not permitted after guilty plea).

¶ 5. Lott then filed his PCR motion in the Pearl River County Circuit Court. In response to Lott’s motion, the State requested an evidentiary hearing. A hearing never occurred. Rather, the trial court dismissed Lott’s motion, finding no error in the revocation of Lott’s parole. Lott appeals, asserting several issues relating to whether his parole was unlawfully revoked.

STANDARD OF REVIEW

¶ 6. “When reviewing a circuit court’s dismissal of a PCR motion, this Court will only reverse a circuit court’s factual findings if the findings are determined to be clearly erroneous.” Pickle v. State, 115 So.3d 896, 898 (¶ 10) (Miss. Ct. App. 2013) (citation omitted). Issues of law are reviewed de novo. Id.

¶7. This Court has recognized that a “circuit court may dismiss a [PCR motion] without an evidentiary hearing where 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.” Id. at 899 (¶ 12) (internal quotations and citation omitted).

DISCUSSION

¶ 8. Lott argues that his parole was unlawfully revoked because the indictment was later nolle prossed, and that he did not have a revocation hearing. The “preliminary revocation hearing report” states, “[Hjearing denied due to indictment.” The Mississippi Parole Board (MPB) revoked his parole on October 12, 2011. The document attached to the parole revocation states, “Parole revocation hearing—10-12-11,” and it notes Lott was present for the hearing. The State recognizes that the record on appeal does not indicate what evidence was presented or on what basis the final revocation was made. The State argues that the trial court presumed the MPB had sufficient evidence to revoke Lott’s parole, and this Court should likewise affirm based upon “the presumption of correctness.”

¶ 9. This Court has held that “before one released on parole may be returned to custody, the State must show that he has violated the terms and conditions of parole.” Elkins v. State, 116 So.3d 185, 187 (¶ 8) (Miss. Ct. App. 2013) (quotation omitted). A parolee is entitled to “a written statement by the fact[-]finders as to the evidence relied on and reasons for revoking parole.” Id. Even if a parolee is acquitted or charges are dismissed, this “does not per se preclude parole revocation predicated upon facts and circumstances giving rise to the criminal charge.” Williams v. Castilla, 585 So.2d 761, 764 (Miss. 1991). “The [MPB] may not rely on the mere fact that the parolee has been charged with a felony.” Id.

¶ 10. Here, the trial court summarily dismissed Lott’s PCR motion without an evidentiary hearing, and there is no record before us providing the information relied upon in revoking Lott’s parole. Therefore, we reverse and remand this case for an evidentiary hearing.

¶11. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POSTCONVICTION RELIEF IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.

IRVING AND GRIFFIS, P. JJ., BARNES, ISHEE, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


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

text:
    110 SOUTH STREET, LLC, Appellant/Cross-Appellee v. ATRIUM GENTLEMANS CLUB, INC., Appellee/Cross-Appellant
    NO. 2015-CA-00882-COA
    Court of Appeals of Mississippi.
    02/21/2017

      HINDS COUNTY. CHANCERY COURT, FIRST JUDICIAL DISTRICT, J. DEWAYNE THOMAS, J.
    JEFFREY DALE RAWLINGS, JON JERDONE MIMS, ATTORNEYS FOR APPELLANT
    MEL J. BREEDEN JR., ATTORNEY FOR APPELLEE
   CARLTON, J.,

FOR THE COURT:

111. 110 South Street LLC filed a complaint in the Hinds County Chancery Court seeking damages against Atrium Gentleman’s Club Inc. (Atrium) after Atrium failed to make lease payments. After a hearing on the matter, the chancellor entered an order finding that Atrium owed 110 South Street $9,800 in back rent. The chancellor’s order reflected that the parties orally agreed that Atrium-would rent the property at a rate of $3,500 per month and would take possession of the property on April 1, 2014. The chancellor found that no enforceable written lease agreement existed between the parties since “no such document was ever signed by both parties.” The chancellor also held that each party would be responsible for its own attorney fees.

¶ 2. Atrium filed a motion for reconsideration, which the chancellor denied. 110 South Street now appeals the chancellor’s order and argues that the chancellor erred by failing to award attorney fees and additional damages. Atrium cross-appeals, asserting that the chancellor erred in: (1) finding that the rental period commenced on April 1, 2014; (2) granting a lien on Atrium’s personal property; and (3) failing to order that 110 South Street return Atrium’s property. Finding no error, we affirm the chancellor’s order and judgment.

FACTS

¶3. In March 2014, Ray Mallards an agent for Atrium, contacted 110 South Street to inquire about securing a lease agreement for the property. After negotiations, the parties agreed that Atrium would pay $3,500 per month to lease the property, and Atrium would take possession of the property on April 1, 2014. However, the record reflects that Atrium never signed or executed the proposed lease agreement. Both Atrium and 110 South Street testified that the parties agreed that Atrium could occupy the property for forty-five days rent-free while Atrium made some needed renovations to the property. The parties also both testified that they agreed to extend this rent-free period for an additional forty-five days due to renovation delays, totaling ninety days in all.

¶ 4. On August 21, 2014, after Atrium failed to make lease payments, 110 South Street filed a complaint for a temporary restraining order (TRO), an injunction, and other relief against Atrium, seeking damages, all sums due, injunctive relief, and attorney fees based on the following: 110 South Street’s statutory landlord’s lien; Atrium’s failure to pay past-due rent, expenses, and costs; Atrium’s failure to provide proof of insurance; Atrium’s failure to transfer utilities; and Atrium’s failure to execute a written lease agreement.

¶ 5. On August 27, 2014, the chancellor entered a TRO enjoining and prohibiting Atrium from removing any property from the premises and from entering and accessing the premises. The hearing for the preliminary injunction was set for September 8, 2014. When Atrium failed to respond and attend the hearing, the chancellor entered a permanent injunction on October 3, 2014. On the same day, Atrium and 110 South Street executed a forbearance agreement that allowed Atrium to remain open briefly in exchange for Atrium’s agreement that it would have no defenses to the prior action filed against it by 110 South Street.

¶ 6. On October 15, 2014, the chancellor entered an entry of default against Atrium. Atrium filed its answer and motion to set aside the entry of default and permanent injunction on October 16, 2014. The chancellor entered an order on February 18, 2015, finding that the only remaining issues to be determined were: (1) the amount, if any, due to 110 South Street, (2) the items, if any, to which the landlord’s lien attached, and (3) the items, if any, to which Atrium was entitled.

¶7. The chancellor held an evidentiary hearing on these issues on March 18, 2015. At the hearing, 110 South Street asserted that Atrium owed it approximately $18,000, which included $3,000 in attorney fees. 110 South Street based this amount on unpaid rent and Atrium’s failure to cover costs to improve the building, which included contracted electrical and roofing work, and installation of the sprinkler system. 110 South Street submitted that it also incurred expenses for the electric bills and $3,000 in losses for a metal-clad fireproof door that was removed from the building. 110 South Street also requested its security deposit for damages, and all of its damages for rent for April, May, June, July, August, and September, in addition to a lien on certain personal property.

¶ 8. However, at the hearing, 110 South Street testified that although Atrium was scheduled to take possession of the property on April 1, 2014, 110 South Street agreed to provide a ninety-day rent-free period to Atrium due to renovations being made to the property. 110 South Street agreed that it was not entitled to receive rent from Atrium until June 15, 2014.

¶ 9. 110 South Street also asserted that when it obtained possession of the property through the injunctive action, the contents in the premises consisted of furniture, kitchen equipment, bar equipment, sound and light equipment, stages, stripper poles, and televisions. The stages were permanently mounted to the concrete floors. 110 South Street sought to establish its lien against the personal property, primarily against the kitchen equipment, explaining that none of the personal property other than the kitchen equipment had any real value to 110 South Street.

¶ 10. At the hearing, Atrium also acknowledged that the parties agreed that Atrium could occupy the property starting on April 1, 2014, but Atrium testified that the parties agreed that Atrium would not pay rent for a forty-five-day period so that it could make the renovations needed for its business. At the end of the initial forty-five-day period, Atrium stated that renovations were still ongoing; as a result, Atrium testified that the parties agreed to extend the rent-free period for an additional forty-five days. Atrium testified that this rent-free period ended on June 15, 2014, when the gentleman’s club opened for business.

¶ 11. Atrium further testified that prior to opening for business, 110 South Street requested Specialty Electric to perform some work on the building. Atrium claimed that it never received a bill from 110 South Street for any work performed by Specialty Electric, and Atrium stated that it was never presented a bill for a fire inspection. Atrium also testified that leaks in the roof were corrected without an agreement between the parties as to who would pay for these repairs. Atrium submitted that it paid the Entergy electric bills during the renovations to the building, even though the electricity account remained in 110 South Street’s name. Regarding 110 South Street’s claim about the metal-clad fireproof door, Atrium testified that 110 South Street ordered that the door be placed outside of the premises, where it later disappeared.

¶ 12. Both parties testified and agreed that Atrium had indeed paid 110 South Street a total of $14,700. However, despite its prior testimony that the rent-free period ended on June 15, 2014, 110 South Street still claimed that Atrium owed them “[flor April, May, June, July, August, [and] September, [and for] the $3,000 missing door that [Atrium] couldn’t tell [them] why [they] couldn’t put back in place.” 110 South Street also disputed that Atrium should receive dollar-for-dollar credit on the $3,500 security deposit.

¶ 13. The chancellor entered his opinion and order on April 9, 2015, awarding a judgment against Atrium, and in favor of 110 South Street, in the amount of $9,800 in back rent. The chancellor found that the parties agreed that Atrium would rent the property from 110 South Street at a rate “of $3,500 per month from April 1, 2014, until the date upon which Atrium was removed from the premises, being October 3, 2014, for a total of $24,500.” The chancellor acknowledged that Atrium had paid a total of $14,700 to 110 South Street in rent, and held Atrium liable for remaining unpaid rent in the amount of $9,800. The chancellor ordered Atrium to pay this amount within twenty days.

¶ 14. The chancellor found that although Atrium took possession of the property on April 1, 2014, Atrium failed to sign the lease agreement. As a result, the chancellor found that no enforceable lease agreement existed between the parties. The chancellor granted 110 South Street a lien against Atrium’s personal property, but the chancellor explained that the lien would be extinguished, and Atrium could recover all personal property from the location listed on “exhibit B,” if Atrium paid the monetary judgment in full within twenty days. The chancellor also held that any property considered a fixture would not be recoverable by Atrium, and that each party would be responsible for its own attorney fees.

¶ 15. On April 17, 2015, Atrium filed a motion for a new trial, reconsideration, or to set aside the judgment. On May 13, 2015, the chancellor entered an order denying Atrium’s motion. 110 South Street filed its appeal on June 5, 2015, and Atrium subsequently filed its cross-appeal.

STANDARD OF REVIEW

¶ 16. This Court employs a limited standard of review when reviewing a chancellor’s decisions. McNeil v. Hester, 753 So.2d 1057, 1063 (¶ 21) (Miss. 2000). This Court “review[s] a chancellor’s decision for abuse of discretion^] ... [and we] will affirm a chancellor’s decision when it is supported by substantial credible evidence.” Venture Sales LLC v. Perkins, 86 So.3d 910, 913 (¶ 11) (Miss. 2012) (citations omitted). We only disturb the chancellor’s findings if “they are manifestly wrong or clearly erroneous, or the chancellor applied an erroneous legal standard.” Ainsworth v. Ainsworth, 139 So.3d 761, 762 (¶ 3) (Miss. Ct. App. 2014). However, we review a chancellor’s conclusions of law de novo. Lowrey v. Lowrey, 25 So.3d 274, 285 (¶ 26) (Miss. 2009).

DISCUSSION

I. Appeal by 110 South Street

¶ 17. The chancellor ordered each party to be responsible for its own attorney fees, and like Judge Wilson’s separate opinion, we find no abuse of discretion by the chancellor in denying 110 South Street’s request for attorney fees herein. See Jordan v. Fountain, 986 So.2d 1018, 1021 (¶ 7) (Miss. Ct. App. 2008). 110 South Street argues that the chancellor erred in failing to award it damages and attorney fees. 110 South Street submits that the chancellor limited 110 South Street’s damages to the total amount of rent owed by Atrium subtracted by the amount already paid by Atrium, amounting to a total of $9,800.110 South Street argues that based on the forbearance agreement and the presentation at the hearing of the damages incurred by 110 South Street, the chancellor should have awarded 110 South Street actual damages in the amount of $18,512.33, which includes attorney fees of approximately $2,500.

¶ 18. The record reflects that on October 3, 2014, Atrium executed the forbearance agreement wherein Atrium agreed that “it has no defenses to the action filed against it by 110 South Street, LLC,” in exchange for 110 South Street allowing a forbearance of the permanent injunction. 110 South Street argues that the chancellor erred in failing to award it damages and attorney fees because, as a matter of contract, Atrium agreed by execution of the forbearance agreement that it possessed no defenses to 110 South Street’s complaint. As a result, 110 South Street argues that Atrium was contractually estopped from defending against its liability as to 110 South Street’s request for damages and attorney fees, and estopped from arguing that the terms of the lease agreement were not enforceable based on the fact that the lease was never signed and executed.

¶ 19. Upon review, the record reflects that the forbearance agreement provides, in pertinent part, that:

110 South Street, LLC has agreed to forbear from enforcing the Permanent Injunction until October 4, 2014[,] at 5:00 a.m. under certain terms and conditions. In consideration for this agreement, Atrium ... has agreed to the following terms and conditions.
Atrium ... agrees that it has no defenses to the action filed against it by 110 South Street ... and agrees that the Permanent Injunction is valid and enforceable in all respects and that 110 South Street ... is entitled to immediate possession of the subject premises.

However, the forbearance agreement failed to provide for an award of attorney fees or an award for any special damages. “[A]ttorney[ ] fees are a special remedy available only when expressly provided for in either a statute or contract, or when there is sufficient proof to award punitive damages.” Falkner v. Stubbs, 121 So.3d 899, 903 (¶ 15) (Miss. 2013). A forbearance agreement constitutes a collateral agreement that must be independently binding in its terms. See generally Sunburst Bank v. Keith, 648 So.2d 1147, 1151 (Miss. 1995); Graham v. Pepple, 132 Miss. 612, 612, 97 So. 180, 184 (1923).

¶ 20. At the hearing, Patrick Pigott, the owner of 110 South Street, identified an expense sheet for 110 South Street, which was admitted into evidence. Pigott testified that the expense sheet reflected that Atrium owed 110 South Street $15,987.33. Counsel for 110 South Street asked Pigott how he arrived at that sum, and Pigott explained:

Well, the contracted work that they agreed to pay for initially to improve the building, we just—I hired my electrician, my roofer and my fire sprinkler guy to do the work that they needed done to the building that they agreed to pay for. That’s three of the amounts here. There’s a total of five. And then we paid—they didn’t pay the power bill; we paid the power bill. It was in our name for a while. And then there’s unpaid rent, late fees on the unpaid rent, attorney[ ] fees and court costs, which here is not accurate. One charge is for a metal-clad fireproof door that was in the building, that was removed from the building.

¶ 21. Pigott also testified that he applied Atrium’s $3,500 security deposit “toward the three months’ worth of rent that they got for free during the construction period.” When asked the total outstanding balance owed by Atrium at the time of the hearing, Pigott responded that Atrium owed $18,512.33, which included an additional sum of between $2,500 and $3,000 for attorney fees. Counsel for 110 South Street admitted that Atrium paid 110 South Street a total of $14,700, although Atrium paid this amount after 110 South Street filed the lawsuit.

¶ 22. The record reflects that Deetra Jones Eiland, owner of Atrium, testified concerning the lack of an agreement between the parties to the terms of the proposed lease, the agreements, or the lack thereof, as to the work and repairs to be done to the building, as well as the disagreement regarding the payment of the electricity bill and rent.

¶23. The transcript, especially Pigott’s testimony, and record before us, reflect that the $18,512.33 in damages and attorney fees requested by 110 South Street includes unpaid rent. The record also reflects that both parties agreed that Atrium paid a total of $14,700 to 110 South Street in unpaid rent. Since the expense sheet does not appear in the record before us, we cannot determine the total amount in damages, minus the unpaid rent, 110 South Street seeks on appeal.

¶ 24. However, upon our review, we recognize that “[t]he question that we must answer when reviewing a chancellor’s damage award is not merely whether we would have awarded more or less damages; rather, our inquiry on appeal is whether there is substantial evidence to support the chancellor’s findings.” Indus. & Mech. Contractors of Memphis Inc. v. Tim Mote Plumbing LLC, 962 So.2d 632, 636 (¶ 10) (Miss. Ct. App. 2007) (citing Edge v. City of Booneville, 226 Miss. 108, 109, 83 So.2d 801, 802 (1955)). Our supreme court has held that “[i]n the context of a damages assessment, which is a finding of fact, the appellate court must review the damages award by looking to the facts of each case.” Lane v. Lampkin, 175 So.3d 1222, 1227 (¶ 7) (Miss. 2015) (internal quotation marks omitted). As stated previously, this Court “will not disturb the factual findings of a chancellor when supported by substantial evidence unless we can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong [or] clearly erroneous, or applied an erroneous legal standard.” Id. at (¶ 6).

¶25. Our review of the record reflects that the chancellor herein found that the lease agreement was not executed, and as a result, no enforceable written lease agreement existed between the parties. Based on the testimony presented at the hearing, the chancellor did find that “the parties agreed that Atrium would rent the subject property from 110 [South Street] at a rate of $3,500 per month with Atrium taking possession of the property effective April 1, 2014.” The chancellor calculated the rent owed to 110 South Street from April 1, 2014, until October 3, 2014, which totaled $24,500. The chancellor subtracted Atrium’s rent payment to 110 South Street of $14,700, and found that Atrium still owed 110 South Street $9,800. The chancellor also granted 110 South Street a lien on Atrium’s personal property currently left on the property, explaining that the lien would be extinguished, and Atrium could recover all personal property from the location listed on “exhibit B,” except for the fixtures, if Atrium paid the monetary judgment in full within twenty days.

¶ 26. The chancellor also ordered that each party would be responsible for its own attorney fees. We recognize that “the standard of review regarding attorney!] fees is the abuse of discretion standard.” Jordan v. Fountain, 986 So.2d 1018, 1021 (¶ 7) (Miss. Ct. App. 2008). The Mississippi Supreme Court has found no basis for an award of attorney fees for breach of an oral agreement. Falkner, 121 So.3d at 903 (¶¶ 12, 15). As stated, “attorney[ ] fees are a special remedy available only when expressly provided for in either a statute or contract, or when there is sufficient proof to award punitive damages.” Id.; see also Miss. Power & Light Co. v. Cook, 832 So.2d 474, 486 (¶ 40) (Miss. 2002). After our review of the record and the applicable caselaw, and in keeping in mind our standard of review, we cannot say that the chancellor erred in his award of unpaid rent and denial of other damages and attorney fees. Venture Sales, 86 So.3d at 913 (¶ 11) (We will affirm a chancellor’s decision where he did not abuse his discretion and where the decision is supported by substantial credible evidence.).

¶27. 110 South Street further claims that since the chancellor only awarded 110 South Street unpaid rent, and not damages, then the calculation of rent should have been doubled based on the statutory calculation of double rent for damages caused by a holdover tenant pursuant to Mississippi Code Annotated section 89-7-25 (Rev. 2011), which provides:

When a tenant, being lawfully notified by his landlord, shall fail or refuse to quit the demised premises and deliver up the same as required by the notice, or when a tenant shall give notice of his intention to quit the premises at a time specified, and shall not deliver up the premises at the time appointed, he shall, in either case, thenceforward pay to the landlord double the rent which he should otherwise have paid, to be levied, sued for, and recovered as the single rent before the giving of notice could be; and double rent shall continue to be paid during all the time the tenant shall so continue in possession.

¶ 28. However, the record reflects that 110 South Street failed to request double rent at the hearing; the first mention of double rent is in 110 South Street’s notice of appeal. We “cannot review an issue on appeal if the parties failed to present the issue to the chancellor at trial.” Lee v. Lee, 154 So.3d 904, 909 (¶ 23) (Miss. Ct. App. 2014).

II. Cross-Appeal by Atrium

¶ 29. Atrium filed its cross-appeal, arguing that the chancellor erred in finding that the rental period for the property commenced on April 1, 2014. Contrary to Judge Wilson’s separate opinion, we find the application of the standard of review controlling as to this issue based upon the record herein. Atrium submits that the testimony provided by both parties at the hearing reflects that both parties agreed to a ninety-day rent-free period commencing on April 1, 2014, and ending on June 15, 2014.

¶30. Pigott, the owner of 110 South Street, testified about the commencement of the rental period for the building:

Q. You say that you gave them a free 45-day window to make improvements. What happened there?
A. Well, that got extended out to 90 days eventually because they weren’t ready to go, and I agreed to it.
Q. So they were 45 days late on the window?
A. That is correct.
Q. Do you recall when they officially opened?
A. I believe it was supposed to start around June 15th, so I think they were a little bit late actually opening the doors. Maybe a week or two after that.
Q. So from April 1st through June 15th, they had possession of the premises?
A. Yes.
Q. But no operating business?
A. That’s right.

¶ 31. Atrium also testified regarding the ninety-day rent-free period agreed to by 110 South Street due to Atrium’s need for renovations made to the building, and also due to the delay in the completion of those renovations. Atrium testified that it finally opened for business on June 15,2014.

¶ 32. On cross-examination, Pigott admitted that 110 South Street sought payment for unpaid rent beginning June 15, 2014:

Q. On the exhibit that’s been marked and entered into evidence here, that was prepared by your attorney there, how long were you collecting rent for on there or that you’re claiming rent for?
A. June through October.
Q. So that’s June 1 through October 31st?
A. I suppose.
Q. So you’re not entitled to rent except from June 15 to October 3; is that correct?
A. No. I think that’s actually not the 1st. It would be the 15th, June 15th through October 15th.

¶ 33. At the conclusion of the hearing, counsel for 110 South Street informed the chancellor:

[Atrium] took possession April 1. They had 45 days of free rent. They went another 45 days past that. If you apply the security deposit, which apparently was just paid out of the blue, to that extra 45 days, they still come out ahead. Subtract that. You’re talking about June, July, August, September, four months, so you’re over—you’re almost to $15,000 right there. And then the period of time they used in October, they had several, at least two weekends that I know of they had access to. So before you get to anything else, we’re at, at least, a five or six thousand dollar loss minimum, and the kitchen equipment that they want to keep compensates us for that, and that cuts out all the disputes.

¶34. Once both parties rested, the following exchange occurred between the chancellor and counsel for Atrium during closing arguments:

Q, Well, I’ve got it at $17,500. That’s May, June, July, August and September.
A. I believe the testimony, Your Honor, was that the rent did not start until June the 15th.
Q. Okay. Well, maybe that’s right.

Later, the chancellor and counsel for Atrium again discussed the date Atrium’s rent payments commenced:

Q. I’m going to find that [Atrium] should have probably paid for April and May, too.
A. It was my understanding from the testimony of [110 South Street] here today that it would all start June 15th, Your Honor.
Q. Well, do you want the lease agreement or do you want what they agreed to?
A. Well, I mean, it’s his testimony he agreed to June 15th.
Q. Okay. I don’t remember that.

¶ 35. As acknowledged, when reviewing the decision of the chancellor, this Court employs the following limited standard of review: we will only disturb a chancellor’s findings if they are manifestly wrong or clearly erroneous, or if the chancellor applied an incorrect legal standard. McNeil, 753 So.2d at 1063 (¶ 21); Ainsworth, 139 So.3d at 762 (¶ 3). “[We] will affirm a chancellor’s decision when it is supported by substantial credible evidence.” Venture Sales, 86 So.3d at 913 (¶ 11). After our review, we find that the chancellor examined the record before him, including the testimony and arguments of the parties, and he was within his discretion to find Atrium liable to 110 South Street for rent payments beginning on April 1, 2014, the date Atrium took possession of the property. In applying this deferential standard of review to the record before us, we must affirm the chancellor’s award of unpaid rent since the chancellor’s findings were based upon substantial credible evidence. See id.

¶ 36. Atrium also argues that it does not owe 110 South Street for rent payments prior to June 15, 2014, or damages, and as a result, the chancellor erred in granting 110 South Street a lien on Atrium’s personal property. Since we affirm the chancellor’s determination that Atrium does owe 110 South Street for rent payments beginning April 1, 2014, and that no enforceable written agreement existed between the parties, this issue is then moot. We also find no abuse of discretion by the chancellor in awarding 110 South Street a lien on Atrium’s personal property unless Atrium pays the award of $9,800 within twenty days of the judgment.

¶ 37. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT, IS AFFIRMED ON DIRECT APPEAL AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT/CROSS-APPELLEE AND THE APPELLEE/CROSS-APPELLANT.

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

WILSON, J.,

CONCURRING IN PART AND DISSENTING IN PART:

¶ 38.1 concur in part and dissent in part. I agree with the majority that the chancellor did not err by not awarding 110 South Street attorneys’ fees or additional damages. Atrium does appear to have agreed that it “ha[d] no defenses to the action filed against it by 110 South Street”; however, I concur with the majority that in waiving “defenses to the action,” Atrium did not admit that it was liable for attorneys’ fees or additional damages. The parties subsequently agreed that “the amount, if any, due to 110 South Street” was to be determined at the evidentiary hearing in the chancery court. This was reflected in an agreed order setting the hearing and confirmed at the outset of the hearing. The forbearance agreement was entered into evidence at the hearing; however, 110 South Street did not argue at the hearing that the .forbearance agreement was an admission of liability for attorneys’ fees or specific damages. On the record before us, I agree that the chancellor did not err by declining to read the agreement so broadly. Furthermore, there was no other basis for an award of attorneys’ fees, and the chancellor did not clearly err by (impliedly) finding that Atrium failed to prove the additional damages it sought. Accordingly, I concur in the result reached by the majority with respect to the issues raised in 110 South Street’s appeal.

¶ 39. I dissent with respect to Atrium’s cross-appeal. I agree with the chancellor that the unsigned draft lease agreement is irrelevant, as the record supports the chancellor’s finding that no enforceable written-lease existed. At the hearing in the chancery court, 110 South Street, through Pigott, admitted that the parties orally agreed that Atrium’s obligation to pay rent would not commence until June 15, 2014:

Q. But y’all ultimately agreed that possession would take place on June 15th and the rent would start on that date?'
A. That’s correct.
Q. On the exhibit that’s been marked and entered into evidence here, that was prepared by your attorney there, how long were you collecting rent for on there or that you’re claiming rent for? .
A. June through October.
Q. So that’s Juné 1 through October 31st?
A. I suppose.
Q. So you’re not entitled to rent except from June 15 to October 3; is that correct?
A. No. I think that’s actually not the 1st. It would be the 15th, June 15th through October 15th.

¶ 40. Given Pigott’s admissions, the chancellor erred by finding that Atrium was liable for seven months of rent beginning on April 1, 2014. The record simply does not support a finding that Atrium is liable for more than four months of rent (June 15 to October 15), i.e., $14,000. The chancellor found, and the parties do not dispute, that Atrium had already paid 110 South Street $14,700, for which the chancellor gave Atrium credit. Accordingly, Atrium has paid 110 South Street an amount greater than it orally agreed to pay in rent.

¶41. 110 South Street seems to argue that Atrium is somehow trying to have its cake and eat it too by denying that the unsigned draft lease agreement is enforceable while also insisting that its obligation to pay rent did not commence until June 15. However, Atrium’s position that its obligation to pay rent did not begin until June 15 is not based on any provision of the unsigned agreement. The unsigned agreement called for a sixty-day “construction period” at the outset of the lease, but it did not expressly provide for a rent abatement during that period. In any event, such an abatement period would have differed from the parties’ oral agreement. Pigott testified that the parties’ initial oral agreement was that no rent would be due for forty-five days, which he later agreed to extend to ninety days, and they ultimately agreed that rent would commence on June 15. Thus, Atrium’s position that its obligation to pay rent did not begin until June 15 is not based on the proposed lease agreement that it rejected and refused to sign. Rather, Atrium relies on an undisputed oral agreement to that effect.

¶42. In summary, the record does not support a finding that Atrium owes more in rent than the undisputed amount it has already paid to 110 South Street. Therefore, in Atrium’s cross-appeal, I would reverse and render the award of damages, as well as the lien granted against Atrium’s personal property. Therefore, I respectfully concur in part and dissent in part.

FAIR, J„ JOINS THIS OPINION.

BARNES, J.,

DISSENTING:

¶ 43. In its original complaint, 110 South Street demanded a judgment against Atrium “for all damages, all sums due and all attomey[’s\ fees incurred[.]” (Emphasis added). When Atrium signed the October 3, 2014 forbearance agreement, in which it agreed that it had “no defenses to the action filed against it,” Atrium waived any defense to a claim for attorney’s fees. “Parties are free to waive various rights .... In contracts[,] parties understand that liability to the burden is a necessary incident to the right to the benefit.” RL Regi N.C. LLC v. Lighthouse Cove LLC, 367 N.C. 425, 762 S.E.2d 188, 190 (2014); see also Knight Props. v. State Bank & Tr. Co., 11 So.3d 491, 496-97 (¶¶ 27-28) (Miss. Ct. App. 2011) (finding contractual language enforceable to waive certain defenses). As 110 South Street asserts, Atrium received the benefit of the forbearance period in exchange for waiving “its defenses to liability for damages and attorney[’s] fees incurred by 110 South Street.” Accordingly, I dissent from the majority’s decision to affirm the chancery court’s judgment.

¶ 44. Before the chancery court, Atrium argued that Ray Mallard, who had signed the forbearance agreement on Atrium’s behalf, was not “duly authorized by the LLC to execute the agreement,” and Atrium’s owner, Deetra Eiland, stated that she never agreed to pay 110 South Street’s attorney’s fees. Counsel for Atrium further contended there was no separate written agreement for attorney’s fees. However, Atrium subsequently attached a copy of the signed forbearance agreement to its motion for reconsideration, acknowledging that the parties had “entered into an agreement that [Atrium] could occupy the premises until 5:00 a.m. on October 4, 2014 and not after[.]”

¶45. Finding that Atrium’s agreement not to defend the claims raised in the complaint waived its defense as to liability for attorney’s fees, I would reverse and remand for a determination of the appropriate attorney’s fees.

      . Atrium asserts, and testimony reflects, that it never signed the lease since the terms failed to comply with the agreement of the parties. The record reflects that neither Atrium nor 110 South Street signed the lease agreement,

      . The record reflects that on June 3, 2015, Atrium filed a motion for relief from judgment and for reconsideration of its previous motion for a new trial, for reconsideration, or to set aside of the judgment. No order or judgment responding to this motion appears in the record before us.

      . This expense report does not appear in the record before us.

      . "Regarding issues of fact as to which a chancellor did not make specific findings, this Court is required to assume that the chancellor resolved all such factual issues in the appellee’s favor.” Sunburst Bank, 648 So.2d at 1149.

      . Venture Sales, 86 So.3d at 913 (¶ 11); see also Pittman v. Pittman, 652 So.2d 1105, 1110 (Miss. 1995).

      . In fact, another section of the unsigned agreement suggested the opposite. The unsigned agreement stated that if 110 South Street failed to deliver vacant possession of the property on April 1, 2014, rent would abate only until possession was delivered to Atrium.

      . However, Deetra Eiland, the club's owner, testified that Mallard was her business associate.


author: GREENLEE, J„

text:
    Javon BROWN a/k/a Javon M. Brown, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00204-COA
    Court of Appeals of Mississippi.
    02/28/2017

      CLAY COUNTY CIRCUIT COURT, LEE SORRELS COLEMAN
    OFFICE OF STATE PUBLIC DEFENDER, BY: MOLLIE MARIE McMILLIN, GEORGE T. HOLMES, ATTORNEYS FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL, BY: ABBIE EASON KOONCE, JASON L. DAVIS, ATTORNEYS FOR APPELLEE
    BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.
   GREENLEE, J„

FOR THE COURT:

¶ 1. This is an appeal from Clay County Circuit Court where Javon Brown was convicted of three counts of armed robbery and sentenced as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015) to serve three consecutive life sentences without the possibility of parole, suspension, or early release. On appeal, Brown asserts the circuit court erred by allowing him to be sentenced as a habitual offender under section 99-19-83 when the proof submitted did not reflect that he had actually served at least one year’s imprisonment for two prior felony convictions. Because section 99-19-83 requires the defendant to have actually served at least one year’s imprisonment for at least two prior felony convictions, with at least one of the convictions being for a crime of violence; the proof submitted below did not show these requirements were met; and the State concedes the same on appeal, we reverse and remand the decision of the circuit court on the issue of sentencing for further proceedings consistent with this opinion. We affirm in part as to Brown’s convictions for armed robbery.

FACTS AND PROCEEDINGS BELOW

¶ 2. On April 8, 2011, Brown was indicted on three counts of armed robbery— among other things—in violation of Mississippi Code Annotated section 97-3-79 (Rev. 2014). On January 17, 2014, the State moved to amend Brown’s indictment to include habitual-offender language under Mississippi Code Annotated section 99-19-83, and the court did amend the indictment to reflect the same by its order on January 21, 2014. On January 13, 2016, Brown was found guilty on all three counts of armed robbery. Immediately after the reading of the verdict and the jury was finally excused, the court sentenced Brown to three consecutive life sentences to be served without the possibility of parole, early release, or earned time, in accordance with section 99-19-83.

¶ 3. Brown moved for a judgment notwithstanding the verdict or, in the alternative, a new trial, which was denied. Brown appeals to this Court.

DISCUSSION

¶ 4. On appeal, the critical issue is whether the State presented sufficient evidence to show that Brown was a habitual offender under section 99-19-83. The State concedes that there was not sufficient evidence and that the circuit court’s sentence should be reversed, and the case remanded for resentencing.

¶ 5. The critical inquiry in addressing a challenge to the sufficiency of evidence “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.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss. 1968)). “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.” Id. (citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

I. Brown’s Habitual-Offender Status

¶6. Mississippi has two habitual-offender sentencing statutes, Mississippi Code Annotated section 99-19-81 (Rev. 2015) (requiring a sentence to the maximum term) and section 99-19-83 (requiring a sentence of life imprisonment). Section 99-19-83 requires two previous felony or federal convictions—at least one of which being a crime of violence as defined by Mississippi Code Annotated section 97-3-2 (Rev. 2014)—and that the defendant was sentenced to and served at least one year or more for each conviction. Section 99-19-81 requires proof that the defendant was twice previously convicted of a felony or federal crime and sentenced to separate terms of at least one year.

¶ 7. Here, the State submitted with its motion to amend the indictment, over a general objection by Brown’s trial counsel, an exhibit that included sentencing orders for three prior Mississippi felony convictions, all sentencing Brown to at least one year’s imprisonment. There was no proof submitted as to whether Brown served one year or more on the Mississippi convictions. Also included in the exhibit was Brown’s Missouri Department of Corrections (MoDOC) record reflecting that he had been received by the MoDOC to serve sentences for multiple felony convictions— one of which was robbery in the first degree. The MoDOC records do not state or reflect that Brown had served one year or more on a violent-felony conviction. There was no other proof submitted by the State to go toward Brown’s section 99-19-83 habitual-offender sentencing. Because there was no proof submitted that gave any indication that Brown had actually served sentences of one year or more for any of his previous felony convictions, we find there is insufficient proof to find that Brown is a habitual offender under section 99-19-83. Thus, we find that we must reverse and remand to the circuit court so that it may resentence Brown in a manner consistent with this opinion.

II. Resentencing

¶ 8. The Mississippi Supreme Court has held that double jeopardy attaches for purposes of the habitual-offender sentence enhancement. Grayer v. State, 120 So.3d 964, 970-71 (¶¶ 20-21) (Miss. 2013). Because the State failed to prove that Brown qualified for the habitual-offender enhancement under section 99-19-83 previously, it is not now able to retry the issue. However, because the proof submitted by the State at the sentencing hearing demonstrated that Brown was twice previously convicted of felonies and sentenced to serve at least one year for each conviction, we find there was sufficient proof to sentence Brown under the habitual-offender enhancement provided by section 99-19-81, and Brown may still be sentenced according to section 99-19-81. See Ellis v. State, 520 So.2d 495, 496 (Miss. 1988).

CONCLUSION

¶ 9. Because the State concedes that there was insufficient evidence to demonstrate that Brown was a habitual offender under section 99-19-83, we reverse and remand Brown’s sentence to the circuit court for resentencing consistent with this opinion. We affirm all other aspects of the circuit court’s judgment.

¶10. THE JUDGMENT OF THE CLAY COUNTY CIRCUIT COURT OF CONVICTION OF THREE COUNTS OF ARMED ROBBERY IS AFFIRMED. THE SENTENCE ON EACH COUNT AS A HABITUAL OFFENDER OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE SENTENCES TO RUN CONSECUTIVELY TO EACH OTHER AND TO ANY SENTENCE CURRENTLY BEING SERVED, IS REVERSED, AND THIS CASE IS REMANDED FOR RESEN-TENCING CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . The remaining charges were retired to the files.

      . Under Missouri's robbery statute at the time of Brown's conviction, robbery in the first degree was defined as a forcible stealing of properly in which the violator, or another participant in the crime, (1) causes serious physical injury to another, (2) is armed with a deadly weapon, (3) uses or threatens the immediate use of a dangerous instrument against another, or (4) displays or threatens the use of what appears to be a deadly weapon or dangerous instrument. Mo. Rev. Stat. § 569.020 (transferred to Mo. Rev. Stat. § 570.023).


author: MAIN, Justice. SHAW, Justice MURDOCK, Justice

text:
    Timothy R. DEES et al. v. Martha Lafaye DEES. Martha Lafaye Dees v. Morgan Stanley Smith Barney, LLC.
    1150107 and 1150123.
    Supreme Court of Alabama.
    June 24, 2016.
    Rehearing Denied Aug. 26, 2016.
    John R. Parker, Daphne, for appellants Timothy R. Dees et al.
    Jim H. Fernandez of Fernandez, Crane & Combs, L.L.C., Mobile, for appel-lee/cross-appellant Martha Lafaye Dees.
   MAIN, Justice.

This case involves a dispute over who is the proper beneficiary of an individual retirement account (“IRA”) owned by decedent Edward F. Dees, Sr. (“Dees”). Timothy R. Dees, Edward Dees, Jr., and Donna Dees Maddox, Dees’s adult children (“the children”), appeal from a summary judgment entered against them and in favor of Dees’s surviving spouse, Martha Lafaye Dees. Martha Dees cross-appeals from the dismissal of her claims against Morgan Stanley Smith Barney, LLG (“Morgan Stanley”), the financial-services firm that managed the IRA. We reverse and remand.

I. Facts and Procedural History

In 1984, Dees opened an IRA with Dean Witter, the predecessor to Morgan Stanley. At the time Dees opened the account, he was married to Mary Helen Dees, the mother of the children. Mary Helen Dees died in 1986. Dees married Ardis Dees in 1988; Ardis Dees died in 1994. In 1995 Dees married Martha Dees. Dees died on January 14, 2014, survived by Martha Dees and the children. Dees’s will left a life estate in the marital home to Martha Dees and directed that the remainder of his estate be passed to the children in equal shares.

At the time of Dees’s death, Morgan Stanley had no record of any beneficiary having been designated for Dees’s IRA. It is unknown if there was ever a designated-beneficiary form on file. The original Dean Witter documents associated with Dees’s IRA account were stored in the World Trade Center and were lost, presumably destroyed, as a result of the terrorist attack of September 11, 2001. The terms of the form IRA agreement used by Dean Witter at the time Dees opened his IRA, however, are known. That form— the IRA-2000 Adoption Agreement—contained a default-beneficiary provision. The default-beneficiary provision provided that, upon the death of the account holder, “the interest in the Account ... shall become the property of the primary beneficiary, if he or she survives, and if no primary beneficiary survives, then of the contingent beneficiary, and if no designated beneficiary survives, or the Custodian cannot locate the beneficiary, then the Custodian shall distribute the amounts payable to my spouse, if he or she survives me, and if not, to my children in equal shares, and if no children survive me, to my estate.”

On numerous occasions between 2005 and 2013 Morgan Stanley notified Dees that it had no beneficiary-designation form on file for his IRA. For example, a notice sent to Dees in 2005 stated:

“In reviewing our records, we noted that we do not have complete copies of your documentation on file with us, specifically copies of your current designation(s). Therefore, we would also like to take this opportunity to ask you to update your beneficiary designation(s) by completing the enclosed form.
“As you know it is very important for individuals (or couples) to periodically review and plan for how they wish their assets to be distributed upon their deaths. Having the necessary legal documents in place ensures that things will happen the way they wish them to.
“Please be aware that, since our documentation on your account is incomplete, if you do not provide Morgan Stanley with your beneficiary designation(s) then we will apply the beneficiary default rules in the Morgan Stanley IRA Plan Document to your Morgan Stanley IRA accounts. The default rules for Morgan Stanley IRAs state:
Ulln the event no designated beneficiary survives the IRA cnmer, or the owner fails to designate a beneficiary, the custodian shall pay death benefits under the Plan to the surviving spouse of the IRA owner, if any, and if not, to the IRA owner’s surviving children in equal shares. If no children survive the IRA owner, the custodian shall pay to the personal representative of the IRA owner’s estate. ir »

(Emphasis in original.) Notice that no designated beneficiary had been indicated also periodically appeared on Dees’s monthly account statements.

Following Dees’s death, Morgan Stanley informed the children that it intended to distribute the funds in Dees’s IRA to Martha Dees in accordance with the default provisions of the IRA agreement.

On March 7, 2014, the children filed the underlying action, requesting a judgment declaring them the proper beneficiaries of the IRA and also seeking a temporary restraining order (“TRO”) prohibiting Morgan Stanley from distributing the funds to Martha Dees. On March 11, 2014, the Mobile Circuit Court entered a TRO prohibiting Morgan Stanley from disbursing the funds in Dees’s IRA. Morgan Stanley filed an answer, and, pursuant to Rule 22, Ala. R. Civ. P., filed a counterclaim and third-party claim for interpleader, naming Martha Dees as a third-party defendant. Martha Dees answered and asserted her own counterclaim and cross-claim for a declaratory judgment. Martha Dees also asserted counterclaims against Morgan Stanley alleging misrepresentation and suppression. Martha Dees stipulated that her tort claims against Morgan Stanley were pleaded in the alternative and were asserted only in the event that the court determined that the children or the estate were the beneficiaries of the IRA.

The children and Martha Dees filed cross-motions for a summary judgment. The children argued that it was their father’s intent to pass the funds in the IRA to his natural children. They contended that, because no copy of a signed IRA agreement had been produced, there was no evidence indicating that Dees had assented to any default-beneficiary provision. Thus, they argued, the funds in the IRA should pass through- Dees’s estate. In support of their motion, the children each submitted. an identically worded affidavit attesting that, when their father opened the IRA account, he informed the children that upon his death the funds were to pass to their mother, then to the children in equal shares. They testified that in 1999 Dees called a family meeting to discuss his estate plans. At that meeting he purportedly told the children that the funds in the IRA would pass to the children in equal shares upon his death. They further testified that in 2002 Dees was diagnosed with Alzheimer’s .disease. The children also submitted an affidavit of Dees’s friend, who testified that Dees told him before Mary Helen Dees died that his “retirement account” would pass to the children should Mary Helen Dees predecease them.

In her cross-motion for a summary judgment, Martha Dees argued that the default-beneficiary provisions of the IRA agreement applied. Specifically, she argued that, even if Dees had originally executed a beneficiary-designation form naming the children as contingent beneficiaries, there was uncontradicted evidence that Dees had executed a new beneficiary-designation form naming his second wife as the sole beneficiary. In support of her motion, Martha Dees submitted affidavits of Ardis Dees’s children, Edward Sutton and Bonnie Main. Sutton testified that he had participated in estate-planning discussions with his mother and Dees and that Dees intended that, should he predecease Ardis, all of his assets should pass to Ardis, including his IRA. Main testified that her mother showed her a beneficiary-designation form signed by Dees, which Main believes was related to the IRA held by Morgan Stanley, that named Ardis as the sole beneficiary and listed no contingent beneficiaries.

Martha Dees also submitted an affidavit in which she testified that Dees told her that he intended the funds in the IRA go to her and that he refused to even consider her suggestion that it be divided between her and the children. She says that the IRA was not discussed at the family estate-planning meeting. Martha Dees also disputed the implication that Dees’s mental capacity prevented him from making decisions regarding the IRA.

Morgan Stanley did not take a position in the trial court as to whether Martha Dees or the children were the proper beneficiary or beneficiaries. It did, however, respond to the summary-judgment motions for the purpose of supplying factual clarification regarding the IRA. In that regard, it submitted the affidavit of Sandra Nor-sworthy, the complex-risk officer in Morgan Stanley’s Mobile, Alabama, branch. Norsworthy testified that, although Morgan Stanley could not locate the original agreement signed by Dees, the terms of the form agreement used at the time the account was opened are known and that Dees would have had to sign that form agreement in order to open the IRA. Moreover, Norsworthy testified as to the notices periodically sent by Morgan Stanley to Dees between 2005 and his death informing him that it had no designated-benefieiary form on file.

On September 29, 2015, the trial court entered an order granting Martha Dees’s motion for a summary judgment and denying the children’s motion for a summary judgment. The court concluded that neither side had established that Dees had provided Morgan Stanley with a beneficiary-designation form and that, therefore, the default provisions of the IRA agreement applied. Thus, in accordance with those provisions, the trial court ordered Morgan Stanley to distribute the proceeds of the IRA to Martha Dees. The court dismissed all remaining claims sua sponte, including Martha Dees’s tort claims against Morgan Stanley. The children appealed, and Martha Dees filed a cross-appeal, contending that, if the trial court’s judgment is reversed on appeal, its dismissal of her tort claims against Morgan Stanley is also due to be reversed.

II. Standard of Review

Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P.

“Our standard of review for a summary judgment is as follows:
“ ‘We review the trial court’s grant or denial of a summary-judgment motion de novo, and we use the same standard used by the trial court to determine whether the evidence presented to the trial court presents a genuine issue of material fact. Bockman v. WCH, L.L.C., 943 So.2d 789 (Ala.2006). Once the summary-judgment movant shows there is no genuine issue of material fact, the non-movant must then present substantial evidence creating a genuine issue of material fact. Id. “We review the evidence in a light most favorable to the nonmovant,” 943 So.2d at 795. We review questions of law de novo. Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330 (Ala.2006).’ ”

Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 793 (Ala.2007) (quoting Smith v. State Farm Mut. Auto. Ins. Co., 952 So.2d 342, 346 (Ala.2006)).

III. Analysis

This case turns on a single question: Are the children the beneficiaries of Dees’s IRA? As to this question, however, issues of fact abound.

Here, the undisputed evidence establishes that Dees opened an IRA with Dean Witter—now Morgan Stanley—in 1984. The uncontradicted testimony indicates that the IRA was governed by a standard form agreement, the terms of which are not in dispute. The original signed agreement and any beneficiary-designation forms that may have existed were lost as a result of the terrorist attack of September 11, 2001. Nearly all other relevant facts, however, are disputed.

First, we note that the default-beneficiary provision does not appear to apply to a situation where, as potentially happened here, an otherwise valid beneficiary designation is lost or destroyed after acceptance by the company. See American Int’l Life Assur. Co. of New York v. Vazquez, No. 02 Civ. 0141, Feb. 25, 2003 (S.D.N.Y.2003) (not selected for publication in the Federal Supplement)(holding that a similar default-beneficiary provision did not apply when the beneficiary designation was unavailable because it was destroyed or lost as a result of terrorist attack of September 11, 2001). Thus, there is a question as to whether Dees designated a beneficiary when he opened the IRA or at any time before Dean Witter’s records were destroyed on September 11, 2001. There is evidence suggesting that, in fact, Dees designated the children as contingent beneficiaries at the time he opened the account. The children all testified that Dees informed them that he did just that. Dees’s friend also testified that Dees told him that his “retirement account” would pass to his children should Mary Helen Dees predecease them. There is, however, also conflicting evidence.

The children of Dees’s second wife, Ar-dis Dees, testified that Dees told them he wanted to leave everything to Ardis. Indeed, Allain testified that she saw a copy of a beneficiary-designation form signed by Dees that named Ardis as the sole beneficiary, naming no contingent beneficiaries. If Dees properly submitted a change-of-beneficiary designation naming Ardis as the sole beneficiary, then, because Ardis predeceased Dees, the default-beneficiary provisions would apply, and the death benefits are due to be paid to Martha Dees as surviving spouse. However, even if Al-lain’s testimony is believed, there remains a question of fact as to whether Dees complied with the requirements necessary to effect a change of the beneficiary. See Gibson v. Henderson, 459 So.2d 845 (Ala. 1984) (noting existence of question of fact as to whether decedent had complied with policy provisions regarding change of beneficiary that precluded summary judgment).

Furthermore, beginning in 2005 Morgan Stanley periodically sent notices to Dees indicating that it had no beneficiary designation for his account on file. Martha Dees testified that Dees told her that he wanted the IRA to go to her upon his death. She, therefore, implies that Dees relied upon these notices, believing that the default provision of the IRA agreement furthered his estate-planning wishes. Yet there is also evidence indicating that Dees had been diagnosed with Alzheimer’s disease in 2002, and his mental capacity to make estate-planning decisions following that diagnosis appears to be in question. See Argo v. Moncus, 721 So.2d 218 (Ala.Civ.App.1998) (holding that existence of question of fact as to decedent’s mental capacity in case challenging deed transfer precluded summary judgment).

In short, there are myriad genuine issues of material fact that make summary judgment improper in this case. Accordingly, the summary judgment entered in favor of Martha Dees is due to be reversed.

With regard to Martha Dees’s cross-appeal related to the dismissal of her tort claims against Morgan Stanley, we note that Martha Dees stipulated that those claims were asserted in the alternative, in the event that the trial court determined that the children were the proper beneficiaries of Dees’s IRA. Presumably as a result of that stipulation, the trial court, in entering a summary judgment in favor of Martha Dees, sua sponte dismissed Martha Dees’s claims against Morgan Stanley. Martha Dees argues that, if the summary judgment in her favor is reversed, the dismissal of her claims against Morgan Stanley is likewise due to be reversed. Morgan Stanley has filed no appellee’s brief in response to Martha Dees’s cross-appeal. We agree that, in light of our reversal of the summary judgment in favor of Martha Dees, the dismissal of her claims against Morgan Stanley is also due to be reversed.

IV. Conclusion

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

1150107—REVERSED AND REMANDED.

1150128—REVERSED AND REMANDED.

STUART, BOLIN, WISE, and BRYAN, JJ., concur.

SHAW, J., concurs in the result.

PARKER and MURDOCK, JJ., dissent.

SHAW, Justice

(concurring in the result).

The “designation-of-beneficiary” provision in the 1984 “IRA-2000” account materials provided that, at the death of Edward F. Dees, Sr.,

“the interest in the Account ... shall become the property of the primary beneficiary, if he or she survives, and if no primary beneficiary survives, then of the contingent beneficiary, and if no designated beneficiary survives, or the Custodian cannot locate the beneficiary, then the Custodian shall distribute the amounts payable to my spouse, if he or she survives me, and, if not, to my children in equal shares, and if no children survive me, to my estate.”

If no person was designated a primary beneficiary or if no person was designated a contingent beneficiary, then, by the language of the designation-of-beneficiary provision, the account does not pass to the surviving spouse. Specifically, it is only if a primary beneficiary was designated and is dead and a contingent beneficiary was designated and is dead (or cannot be found) that the funds in the account are then distributed to the surviving spouse. The designation-of-beneficiary provision does not supply a result if neither a primary beneficiary nor a contingent beneficiary was designated.

We do not know for sure who, if anyone, Dees might have designated as either primary beneficiary or as contingent beneficiary. The original documents executed in 1984, and any subsequent changes in the beneficiaries made by Dees, were apparently destroyed in the September 11, 2001, terrorist attack on the World Trade Center, where Dean Witter, the predecessor to Morgan Stanley Smith Barney, LLC, kept many of its records. Dees apparently made no changes to the beneficiaries after that time. Over the years Morgan Stanley Smith Barney, LLC, asked Dees to designate a beneficiary, and Dees apparently did not respond.

Here, there was substantial evidence that Dees might have designated his first wife, Mary Helen Dees, as the primary beneficiary and their children, the plaintiffs below, as the contingent beneficiaries. Specifically, testimony indicates that, when the account was opened, Dees stated that, upon his death, the funds in the account would go to Mary and then to their children. After Mary died, Dees purportedly indicated to his children that the funds in the account would go to them. Dees’s statements would tend to indicate his anticipation of the operation of the designation-of-beneficiary provision if Mary was designated as the primary beneficiary and the children were designated as contingent beneficiaries. If the trier of fact believes this evidence and concludes that Mary and the children had been named as beneficiaries in the destroyed documents, then the account would pass to the children by operation of the designation-of-beneficiary provision.

However, there was also substantial evidence that Dees’s second wife, Ardis Dees, was designated as the primary beneficiary and that no contingent beneficiaries were designated. If the trier of fact were to believe this evidence, then the designation-of-beneficiary provision would seem to supply no answer: It does not say what occurs if no contingent beneficiaries are designated. Further, its language does not provide that the account passes to the surviving spouse when no contingent beneficiaries are designated.

Additionally, Martha Dees presented evidence indicating that Dees “intended” the funds in the account to pass to her and not to his children. It is not clear if Dees actually acted to change the designation of beneficiary to reflect that intent; if he did so, the documents reflecting that change were destroyed. Martha apparently attempted to change the designation of beneficiary, using a power of attorney, to name herself as primary beneficiary, but this was not accomplished.

There appears to me to be a question of fact as to whether (1) Mary was designated as the primary beneficiary and the children were designated as contingent beneficiaries in the original documents or (2) Ardis was subsequently designated as the primary beneficiary and no contingent beneficiaries were designated. If the former is true, then the 1984 designation-of-beneficiary provision appears to operate in favor of Dees’s children. If the latter is true, a legal question as to the applicability of the 1984 designation-of-beneficiary agreement exists. If, as a matter of fact, neither is true, then a legal question exists as to who is entitled to the funds in the account.

MURDOCK, Justice

(dissenting).

The main opinion states, and I agree, that “[t]he uncontradicted testimony indicates that the IRA was governed by a standard form agreement, the terms of which are not in dispute.” 217 So.Bd. at 813. The fact of that agreement and its undisputed terms dictate the result reached by the trial court in its summary judgment in favor of Martha Dees. I, therefore, respectfully dissent.

PARKER, J., concurs.

      . The letter quotes a more recent version of the Morgan Stanley standard form IRA agreement. It is unclear from the record before us whether this new form was accepted by Dees, but the parties do not contend that there are any differences between the forms that are material to the outcome of this case.

      . For example,. a note on Dees’s account statement dated March 2007 stated:
      “IMPORTANT: Morgan Stanley does not have a beneficiary designation on file for this account. Please contact your Financial Advisor, Wealth Advisor or local branch office as soon as possible to execute a new IRA Adoption Agreement and/or IRA Designation of Beneficiary form. Thank you.”

      . On the motion of all the parties, the trial court stayed the claims against Morgan Stanley until resolution of the beneficiary issue.

      . Given the destruction of the documents, the contents of the original documents may be proven by secondary evidence. See Rule 1004, Ala. R. Evid. Here, it is undisputed that, at the time it was established, the IRA would have been governed by the standard IRA-2000 Adoption Agreement then used by Dean Witter, the terms of which are undisputed. Moreover, contrary to the children’s assertion, the agreement does not violate the Statute of Frauds.

      . Another designation-of-beneficiary provision, which was apparently issued at a later time and which contains different language, is quoted in the briefs. It is not clear if that provision is applicable, and no legal arguments are advanced indicating that this later provision supersedes the provision in the original 1984 IRA-2000 account agreement. For all that appears, the designation-of-beneficiary provision in the 1984 IRA-2000 account agreement applies in this case.

      . The later designation-of-beneficiary provision discussed in note 5 is worded differently and anticipates the lack of a designation of a beneficiary. The 1984 designation-of-beneficiary provision at issue does not anticipate such a scenario.

      . An argument in the briefs suggests that the 1984 designation-of-beneficiary provision had to be completed in order for the account to be opened; however, the testimony in the record by an agent of Morgan Stanley Smith Barney, LLC, that is cited does not clearly indicate that it was required that that provision of the agreement be completed.