author: BARNES, J.,

text:
    Hunter RASDON, Appellant v. Charles THRASH, individually and/or on behalf of the Mississippi State Championship Challenge Series. Appellee
    NO. 2016-CA-01402-COA
    Court of Appeals of Mississippi.
    08/15/2017

      ATTORNEY FOR APPELLANT: BRANNON LEE BERRY
    ATTORNEY FOR APPELLEE: STEPHEN B. JACKSON
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1. Hunter Rasdon brought an action for breach of contract and breach of the covenant of good faith and fair dealing against Charles Thrash, individually and/or on behalf of the Mississippi State Championship Challenge Series (MSCCS). Rasdon had been fined $500 and disqualified as the winner of a racing event because tire samples taken from his vehicle were tested and found to be nonconforming under the MSCCS’s “Rules and Specifications.” After the County Court of Lauderdale County granted summary judgment in favor of Thrash, Rasdon appealed the decision to the Lauderdale County Circuit Court. The circuit judge affirmed the ruling.

¶ 2. Finding no error on appeal, we affirm the judgment.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 3. On March 28, 2015, Rasdon accepted an open invitation to participate in a MSCCS racing event promoted by Thrash. The event was held at Whynot Motor-sports Park in Meridian, Mississippi. It was advertised that the winner of the event would receive $2,000 and championship points. As a condition of entry into the event, race participants were required to adhere to MSCCS’s “Rules and Specifications.” The “Rules and Specifications” provided in part:

(4) Chemical alteration of any tires is prohibited. No tire softeners or conditioners which alter the chemical compound of the tire will be permitted. This includes, but is not limited to, tire soaking, internal applications or the use of tread softeners.
(10) The MSCCS will take tire samples from the Fast Qualifier car and the winning car and [the samples] will be sent to a certified lab for testing. Tires not conforming to the manufacturer’s benchnwk will be deemed illegal. Any competitor is subject to tire inspections and/or samples being taken at any time during the event.
(11) Competitor with tires being tested will not be awarded any winnings until results are back from the lab. (Results are normally back within 3-5 business days.).
(12) Penalties for non-conforming tires:
(13) First Offense: $500 fine for driver and forfeit of points and winnings from the event the non-conforming tire participated in.
(14) Second Offense: $1,000 fine for the driver and forfeit of points and winnings from the event the non-conforming tire participated in and/or a two (2) race suspension from MSCCS events.
(16) Any competitor found with non-conforming tires will not be allowed to participate in any MSCCS event(s) until any and all fines are paid.

¶ 4. As Rasdon was both the “Fast Qualifier” and winner of the race, Thrash collected samples of Rasdon’s tires and sent them to Blue Ridge Laboratories for inspection to make sure the tires were not chemically altered (“tire doping”). After Blue Ridge determined that one of the tire samples was nonconforming when compared to the tire manufacturer’s benchmark, Thrash informed Rasdon that his tires tested positive for an undisclosed chemical alteration. Per the rules, Rasdon was disqualified as the winner of the race, fined $500, and precluded from participating in future MSCCS events until the fine was paid.

¶ 5. Rasdon filed a complaint with the county court on May 15, 2015, seeking compensatory damages and permanent in-junctive relief for breach of contract and breach of the implied covenant of good faith and fair dealing. Thrash filed a motion for summary judgment, which included a motion for the “recovery of attorney’s fees and other reasonable expenses.” The county court granted Thrash’s motion for summary judgment and dismissed the case with prejudice, concluding “that no MSCCS official breached any contractual obligations owed to the Plaintiff[,] including implied obligations of good faith and fair dealings averred by the Plaintiff[.]” It denied Thrash’s request for attorney’s fees and expenses. Rasdon filed a motion for reconsideration, which was denied.

¶ 6. Rasdon appealed the decision to the circuit court, arguing that it was “improper for the county court to rule summarily that [Thrash] did not breach the implied covenant of good faith and fair dealing.” On September 2, 2016, the circuit court affirmed the county court’s grant of summary judgment and upheld the denial of Thrash’s motion for attorney’s fees and expenses, concluding that the action was not frivolous. Rasdon now appeals to this Court.

STANDARD OF REVIEW

¶ 7. The grant or denial of a motion for summary judgment by a trial court is reviewed de novo. Martindale v. Hortman Harlow Bassi Robinson & McDaniel PLLC, 119 So.3d 338, 341 (¶ 6) (Miss. Ct. App. 2012) (citing Lewallen v. Slawson, 822 So.2d 236, 237 (¶ 6) (Miss. 2002)). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions 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). “In determining the propriety of summary judgment, we view the facts in the light most favorable to the nonmovant.” Martindale, 119 So.3d at 341 (¶ 6) (citing Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (¶ 12) (Miss. 1999)).

DISCUSSION

¶ 8. Affirming the county court’s judgment, the circuit court determined that Rasdon “freely entered into the con-tráete,] which contains clear and unambiguous terms and conditionsf,]” and “made no showing of any violation by [Thrash] of standards of decency, fairness, or reasonableness.” Relying on the Mississippi Supreme Court’s holding in Cenac v. Murry, 609 So.2d 1257, 1272 (Miss. 1992), Rasdon claims that Thrash had “an obligation ‘to take affirmative steps’ to ensure that the ‘goals’ of tire testing”—“uniformity among the drivers” and a “safe and level playing field”—were accomplished. (Emphasis added).

[C]ourts have often supplied a term ret quiring both parties to a contract to exercise what is called “good faith” or sometimes “good faith and fair dealing.” This duty is based on fundamental notions of fairness, and its scope necessarily varies according to the nature of the agreement. Some conduct, such as subterfuge and evasion, clearly violates the duty. However, the duty may not only proscribe undesirable conduct, but may require affirmative action as well, A party may thus be under a duty not only to refrain from hindering or preventing the occurrence of conditions of his own duty or the performance of the other party’s duty, but also to take some affirmative steps to cooperate in achieving these goals.

Id. (emphasis added) (quoting E, Allan Farnsworth, Contracts § 7.17, at 526-27 (1982)).' Rasdon argues that the “mere compliance with the express terms of an agreement without a sensible attempt to carry out the fundamental purpose of those terms calls into question one’s commitment to execute the agreement in good faith.” Thus, he urges this Court to look outside the “four corners" of the contract and “contemplate the underlying purpose of the tire testingf.]”

¶ 9. In Ravenstein v. Community Trust Bank, 141 So.3d 396, 403-04 (¶27) (Miss. Ct. App. 2013), we held:

“All contracts contain an implied covenant of good faith and fair dealing in performance and enforcement.” Limbert v. Miss. Univ. for Women Alumnae Ass’n, 998 So.2d 993, 998 (¶ 11) (Miss. 2008). Good faith means “the faithfulness bf an agreed purpose between two parties, a purpose' which is consistent with justified expectations of the other party.” Cenac, [609 So.2d at 1272.] In contrast, bad faith requires “a showing of moré than bad judgment or negligence; rather, ‘bad faith’ implies some conscious wrongdoing ‘because of dishonest purpose or moral obliquity.’” Univ. of S. Miss. v. Williams, 891 So.2d 160, 170-71 (¶ 24) (Miss. 2004). However, a party does not breach the “implied covenant of good faith and fair dealing when the party took only those actions which were duly authorized by the contract.” Limbert, 998 So.2d at 999 (¶ 14).

(Citations omitted). Thrash maintains that he acted “consistent with the MSCCS Rules and Specifications which Rasdon was aware of and agreed to prior to entering the race.” We agree. The terms outlined in the MSCCS “Rules and Specifications” were unambiguous. As Rasdon was the fastest qualifier and the winner of the race, Thrash was authorized to take the tire samples from Rasdon’s car and submit those samples for testing. The rules also explicitly provided that a finding of a nonconforming sample would disqualify Ras-don and require him to pay a $500 fine. Rasdon testified that he had read the rules previously and that the tire testing “was announced during the drivers’ meeting before the races.” Rasdon also acknowledged that there was no evidence of bad faith in this instance.

Q. Okay. Are you alleging any motives behind [Thrash’s] actions? Like he had a dishonest purpose or anything?
A. I’m not claiming he’s a dishonest man if that’s what you’re asking.
Q. I’m really just asking if you were—if there was an allegation of some sort of motive? Like he had [a] dishonest purpose behind this whole thing?
A. No.

The “underlying purpose” of the MSCCS tire rules is to ensure that no driver has an unfair advantage, or as Rasdon acknowledges, that there is a “safe and level playing field.” Thrash’s actions under the rules satisfy this purpose.

¶ 10. Rasdon also disputes the accuracy of the test results, and claims it was “violative of the fundamental notions of fairness and reasonableness” for Thrash to rely on them. However, as the county court noted, there was no provision in the rules “for contesting lab results ... [, as] neither MSCCS nor Whynot Motorsports Park, LLC ha[d] any control over the independent testing lab[.]” Rasdon asserted no claim against Blue Ridge as a defendant; nor did he depose the company regarding the results. He also acknowledged in his deposition that he had no expectation of protest procedures. While Rasdon’s independent test indicated his tire samples “did not contain any atypical entities at a level that would flag the tire as being chemically altered,” those results were admittedly not compared to the manufacturer’s benchmark standard adopted in the “Rules and Specifications.”

¶ 11. Accordingly, we affirm the grant of Thrash’s motion for summary judgment. As a final consideration, Thrash requests this Court to address his claim that he was entitled to attorney’s fees and expenses. However, since Thrash did not file the required notice of cross-appeal under Mississippi Rule of Appellate Procedure 4, this issue is not properly before this Court and may not be considered. See M.R.A.P. 4(c).

¶ 12. AFFIRMED.

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

      . Certain chemicals can provide drivers better traction on dirt, giving them a competitive advantage.

      . A duplicate test was done on the same tire yielding the same results. Although Rasdon had an independent test conducted through another laboratory, which revealed that the tire samples he submitted "did not contain any atypical entities at a level that would flag the tire as being chemically altered,” the report also noted that the "manufacturer benchmark sample was not available for comparative analysis.” The county court later determined that the independent test result had "little or no probative value,” as the testing "was out from under the supervision of MSCCS officials and/or Whynot track officials.”

      .Rasdon conceded his claim for breach of contract.

      . Rasdon is referring to the fact that the Blue Ridge report was dated April 3, 2015, but the last page of the report shows that a sample was scanned on April 9, 2015, four days after he was disqualified. Regardless, as Thrash notes, the report still indicates that the samples tested on April 2, 2015, did not conform with the benchmark.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Jeffery E. ARNOLD a/k/a Jeffery Eugene Arnold a/k/a Jeffrey E. Arnold a/k/a Jeff Arnold, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00243-COA
    Court of Appeals of Mississippi.
    08/22/2017

      ATTORNEY FOR APPELLANT: JEFFERY E. ARNOLD (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER
    BEFORE IRVING, P.J., ISHEE AND GREENLEE, JJ.
   ISHEE, J.,

FOR THE COURT:

¶ 1. In August 2013, Jeffrey Arnold pleaded guilty in the Rankin County Circuit Court for one count of the sale of alprazolam, and one count of conspiracy to sell hydrocodone and acetaminophen. The circuit court sentenced Arnold to fifteen years in the custody of the Mississippi Department of Corrections (MDOC) for Count I; and a consecutive twenty years in the custody of the MDOC for Count II, with all but one day suspended, followed by five years of postrelease supervision. Arnold was also assessed with various costs and fines.

¶ 2. In January 2016, Arnold filed a motion for postconviction relief (PCR). The circuit court dismissed Arnold’s motion as a successive writ. Arnold now appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. On March 21, 2013, Arnold was indicted by a Rankin County grand jury for one count of the sale of alprazolam, a Schedule IV controlled substance under Mississippi law, and one count of conspiracy to sell hydrocodone and acetaminophen, Schedule III controlled substances under Mississippi law.

¶ 4. On August 4, 2013, Arnold pleaded guilty to both counts of the indictment. The circuit court found that Arnold’s pleas of guilty were freely, voluntarily, knowingly, and intelligently made and entered. The circuit court further found that each plea had its own factual basis. Therefore, the circuit court accepted Arnold’s plea—adjudicating him guilty on both counts. The circuit court then sentenced Arnold to fifteen years in the custody of the MDOC for Count I; and a consecutive twenty years in the custody of the MDOC for Count II, with all but one day suspended, followed by five years of postrelease supervision. Additionally, Arnold was assessed with costs and fines as to Count I; the minimum fine for Count II was suspended.

¶ 5. On January 25, 2016, Arnold filed a motion for PCR in the Circuit Court of Rankin County. On January 27, 2016, the circuit court dismissed Arnold’s motion as a successive writ. In dismissing Arnold’s motion, the circuit court emphasized the fact that Arnold had three previous PCR actions in the circuit court in the matter of this conviction. Also, the circuit court found Arnold’s motion to be frivolous, and so the circuit court ordered that at least sixty days of Arnold’s accrued earned time were to be forfeited pursuant to Mississippi Code Annotated section 47-5-138(3) (Rev. 2015). Arnold now appeals.

DISCUSSION

I. Dismissal of PCR Motion as Successive Writ

¶ 6. This Court will not disturb a circuit court’s dismissal of a PCR motion unless the decision is found to be clearly erroneous. Williams v. State, 110 So.3d 840, 842 (¶ 11) (Miss. Ct. App. 2013). Questions of law are reviewed de novo. Id. Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), an order “denying relief ... is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article.” Miss. Code Ann. § 99-39-23(6) (Rev. 2011). In order to proceed, the movant must show—by a preponderance of the evidence—that his claims are not barred. Ratcliff v. State, 120 So.3d 1058, 1060 (¶ 5) (Miss. Ct. App. 2013).

¶ 7. Yet there are exceptions to the successive-writ bar. Id. at (If 6). For instance, “[ejrrors affecting fundamental constitutional rights are excepted from the procedural bar .... ” Bell v. State, 95 So.3d 760, 763 (¶ 12) (Miss. Ct. App. 2012) (reversed in part) (citation omitted). Also, there is an exception if “there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence .... ” Miss. Code Ann. § 99-39-23(6).

¶8. In his brief, Arnold argues that the' latter exception applies—that there has been an intervening decision by either the Supreme Court of Mississippi or the United States that would have adversely affected the outcome of his conviction. But in making this argument, Arnold fails to point to any intervening caselaw to support this empty assertion. The record shows that Arnold has filed three previous PCR actions in the same matter. What is more, Arnold has failed to offer any meritorious reasons why the successive-writ bar should not apply. Though he does not rely on them as his vehicle around the procedural bar, Arnold argues that his right against double jeopardy and his right to effective assistance of counsel were violated. It is'true that errors that'affect fundamental ‘constitutional rights are an exception from the procedural' bar, but “mere assertions of constitutional-rights .violations do not suffice to overcome the procedural bar.” White v. State, 59 So.3d 633, 636 (¶ 11) (Miss. Ct. App. 2011). Therefore, we find that the circuit court correctly dismissed Arnold’s PCR motion as a successive writ. This issue is without merit.

II. Double Jeopardy and Ineffective Assistance of Counsel

¶ 9. In his motion, Arnold raised two additional issues: first, a violation of his right against double jeopardy and, second, that he received ineffective' assistance of counsel. While we find that the motion was barred as a successive writ, because these additional issues arguably implicate Arnold’s fundamental rights, we will briefly address each of them in turn. See Bell, 95 So.3d at 763 (¶ 12).

¶ 10. First, Arnold argues that the conviction for one count of the sale of a controlled substance and one count of conspiracy to sell a controlled substance violated his right against double jeopardy. We disagree. The Fifth Amendment to the United States Constitution affords a person a right to not be prosecuted twice for the same offense. U.S. Const, amend. V; Harden v. State, 460 So.2d 1194, 1200 (Miss. 1984). It is well established that the crime of conspiracy does not merge with the crime committed pursuant to the conspiracy. Norman v. State, 381 So.2d 1024, 1028 (Miss. 1980). “[A] conspiracy to commit a crime is different from the crime that is the object of the conspiracy[;] the first necessarily involves joint action while the other does not.” Moore v. State, 290 So.2d 603, 605 (Miss. 1974).

¶ 11. Here, Arnold was charged and tried on two separate counts. He was indicted under Mississippi Code Annotated section 41-29-139 for one count of the sale of alprazolam, a Schedule TV controlled substance, and one count of conspiracy to sell hydrocodone and acetaminophen, Schedule III substances. Indeed, the crime of conspiracy in Count II of the indictment is a separate and distinct crime from the sale of alprazolam charged in Count I. And so, we find that Arnold’s right against double jeopardy was not violated by the circuit court’s acceptance of his guilty pleas on both counts. This issue is without merit.

¶ 12. Seconds Arnold argues that the circuit court erred in denying postconviction relief on the grounds of ineffective assistance of counsel. Arnold’s argument under this issue is closely tied to the issue of double jeopardy—in that Arnold argues that his counsel was ineffective by failing to advise him that the indictment and subsequent conviction would violate his right against double jeopardy. We disagree.

¶ 13. “An ineffective-assistance claim requires showing: (1) counsel’s performance was deficient and (2) prejudice resulted.’’ Williams, 110 So.3d at 844 (¶ 21) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). According to Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Hooghe v. State, 138 So.3d 240, 247 (¶ 31) (Miss. Ct. App. 2014) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052).

¶ 14. Here, Arnold cannot meet either prong of Strickland. As stated above, Arnold’s claim of double jeopardy is without merit, and so he cannot meet the first prong of Strickland—requiring him to show that' his counsel was deficient in some way. There can be little doubt that Arnold’s counsel was not deficient by failing to inform him of a double-jeopardy defense where it was inapplicable under the law and facts of his particular case. What is more, Arnold cannot show any harm due to this alleged error. And so, Arnold has failed to meet his burden in proving ineffective assistance of counsel. This issue is also without merit.

CONCLUSION

¶ 15. After reviewing the record, we find that Arnold’s motion is barred as a successive writ. We further find that the issues raised by Arnold, which arguably implicate fundamental rights, are without merit. ■Therefore, we affirm the circuit .court’s summary dismissal.of Arnold’s, motion.

¶ 16. AFFIRMED.

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

      . Alprazolam is a Schedule IV controlled substance pursuant to Mississippi Code Annotated section 41-29-119 (Rev. 2013); hydroco-done and acetaminophen are Schedule III controlled substances pursuant to Mississippi Code Annotated section 41-29-117 (Rev. 2013).


author: CARLTON, J.,

text:
    EAGLE GREEN ENERGY, INC., Appellant v. FORSITE DEVELOPMENT, INC., Reventure Park Investments I, LLC, and Clean Energy, LLC, Appellees
    NO. 2016-CA-00734-COA
    Court of Appeals of Mississippi.
    08/29/2017

      ATTORNEY FOR APPELLANT: JOLLY W. MATTHEWS III
    ATTORNEY FOR APPELLEES: F. DOUGLAS MONTAGUE III
    BEFORE LEE, C.J., BARNES AND CARLTON, JJ.
   CARLTON, J.,

FOR THE COURT:

¶ 1. Eagle Green Energy Inc. (Eagle Green) appeals the May 3, 2016 final order of the Jefferson Davis County Circuit Court. In its order, the circuit court held that a prior judgment issued by a North Carolina court, and later enrolled in the Jefferson Davis County Circuit Court, constituted a valid judgment in Mississippi. The judgment at issue provided that Eagle Green must pay Forsite Development Inc., Reventure Park Investments I, LLC, and Clean Energy LLC (collectively, Forsite) $25,000 in actual damages and an additional $25,000 in punitive damages. Eagle Green now claims that the North Carolina judgment should not be given full faith and credit.

¶ 2. Finding no error, we affirm the circuit court’s judgment.

FACTS

¶ 3. Forsite, a North Carolina corporation, initiated this civil action seeking to recover the $25,000 Forsite paid to Eagle Green, a Mississippi corporation. Forsite filed a motion in the General Court of Justice, Superior Court Division, of Meck-lenburg County, North Carolina, seeking an entry of default against Eagle Green. The superior-court clerk entered the default on January 16, 2015.

¶ 4. On January 21, 2015, Eagle Green filed an answer asserting that the superior court lacked jurisdiction over Eagle Green, since Eagle Green is a Mississippi corporation that only does business in Mississippi. Eagle Green also initiated a cross-claim against Forsite for the amount of $35,000.

¶ 5. On January 28, 2015, Forsite moved for a default judgment and also filed a motion to dismiss and/or strike the answer and cross-claim filed by Eagle Green.

¶ 6. On March 26, 2015, the superior court entered an order and final judgment (“North Carolina judgment”) granting Forsite’s motion to dismiss Eagle Green’s answer and counterclaim and also granting Forsite’s motion for a default judgment. The superior court also awarded Forsite $25,000 in actual damages and $25,000 in punitive damages.

¶ 7. As set forth in the North Carolina judgment, the superior court found that Eagle Green deposited a $25,000 check paid by Forsite to Eagle Green, but then Eagle Green failed to provide the items paid for by Forsite. The North Carolina judgment reflects that on July 15, 2014, and November 21, 2014, Forsite demanded that Eagle Green return the $25,000, but Eagle Green refused. As a result, the superior court found that

[Eagle Green] wrongfully converted the funds to its own use by:
(a)the unauthorized retention of the funds after [Forsite] made demand for return of the funds;
(b) the unauthorized exercise of a right of ownership over the funds belonging to [Forsite]; and
(c) the unauthorized exclusion of [For-site] from exercising their right of ownership over the funds[.]

The superior court thus found that Forsite incurred damages in the amount of $25,000.

¶8. The superior court also awarded Forsite an additional $25,000 in punitive damages after determining that Eagle Green’s “wrongful acts were done intentionally or willfully or wantonly or with malice, or any combination thereof!.]”

¶ 9. In its judgment, the superior court acknowledged Eagle Green’s assertion that the superior court lacked jurisdiction over Eagle Green, since Eagle Green is a Mississippi corporation only doing business in Mississippi. The superior court explained that Eagle Green cannot object to the jurisdiction of the superior court “and at the same time seek to invoke the jurisdiction of [the] court” by filing a cross-claim against Forsite. The North Carolina judgment also reflects that Forsite “properly obtained” service of process on Eagle Green.

¶ 10. On June 3, 2015, Forsite enrolled the North Carolina judgment in Jefferson Davis County, Mississippi.

¶ 11. After Eagle Green failed to make payments toward the satisfaction of the North Carolina judgment, Forsite filed a motion for a judgment debtor examination in the circuit court on July 20, 2015. In response, the circuit court entered an order instructing Eagle Green to produce various specified documents to Forsite. The record contains a proof of summons dated September 28, 2015, reflecting that the process server served the circuit court’s order upon a registered agent for Eagle Green.

¶ 12. On January 20, 2016, the circuit court issued a writ of garnishment upon Eagle Green’s account at Hancock Bank to recover the amount set forth in the North Carolina judgment.

■ ¶ 13. On February 22, 2016, Eagle Green filed an answer, injunctive request, and counterclaim against Forsite and Hancock Bank, claiming that Eagle Green failed to actually possess the $57,603.48 that Hancock Bank garnished from Eagle Green’s account. Eagle Green explained that it held the funds at issue in a trust for Louis Ho, a customer of Eagle Green. Eagle Green also asked the circuit court to declare the North Carolina judgment void, since the superior court lacked jurisdiction over Eagle Green.

¶ 14. On March 10, 2016, Forsite filed a motion for a judgment on the pleadings seeking dismissal of Eagle Green’s request for the injunction and counterclaim. Fori site also filed a motion requesting the circuit court to issue an order authorizing and directing Hancock Bank to disburse the funds that it had seized from Eagle Green’s account as a result of the writ' of garnishment. The circuit court held a hearing on this motion on April 19,2016.

¶ 15. After a hearing, the circuit court entered an order on May 3, 2016, denying Eagle Green’s counterclaim, its request to void the North Carolina judgment, and its request for an injunction. The circuit court also ordered Hancock Bank to tender the garnished proceeds of $56,964.14 to the circuit clerk for delivery to Forsite’s counsel.

¶ 16. In its order, the circuit judge addressed Eagle Green’s request to void the North Carolina judgment, explaining

[Pjursuant to Mississippi] ■ Code Annotated section] 11-7-301, a foreign judgment is a judgment of a court of the United States which is entitled to full faith and credit in this state. Once a foreign judgment has been filed in the office of the clerk of the circuit court of any county in Mississippi, the clerk shall treat the foreign judgment in the same manner as a judgment of the circuit court of any county in this state (Miss. Code Ann. § 11-7-303,). Therefore,' any jurisdictional issues concerning the validity of the North Carolina judgment must be adjudicated in the Superior Court of Mecklenburg County, North Carolina, where said judgment was rendered.

¶ 17. The circuit court also provided “that a default judgment is given the same effect as if'a verdict was entered for the plaintiff and accordingly can have preclu-sive effect on other litigation!.]” The circuit court found that Eagle Green failed to file a direct appeal of the default judgment. As a result, the circuit court held that Eagle Green “cannot simply fail to defend a suit and fail to appeal a’ default judgment, and later file suit and argue that the default judgment was obtained by fraud or abuse of process.”

¶ 18. The circuit court further held that Eagle Green’s counterclaim was barred by •res judicata and also time-barred. The circuit court cited Mississippi Rule of Civil Procedure 60(b) and found:

The North Carolina Judgment at issue was entered in the General Court of Justice, Superior Court Division of Mecklenburg County, North Carolina on March 26, 2015 and enrolled in the judgment records of Jefferson Davis County Circuit Court on June 3, 2015. [Eagle Green’s] Motion to Set Aside the Judgment was not filed until February 24, 2016 and is therefore time barred pursuant to ... Rule 60(b).

¶ 19. Finally, the circuit court stated that

the court reviewed and received monthly bank statements that the Hancock Bank account was [Eagle Green’s] business operating account, from which [Eagle Green] routinely wrote checks for its business debts. There is no indication of any kind, on the account that it is a company trust account for the benefit of any third parties.

As a result, the circuit court ordered that Hancock Bank disburse the garnished funds to Forsite’s- attorney.

¶ 20. Eagle Green now appeals the circuit court’s order.

STANDARD OF REVIEW

¶ 21. On appeal, we review jurisdictional questions de novo. Sapukotana v. Sapukotana, 179 So.3d 1105, 1111 (¶ 17) (Miss. 2015). “This Court is in the same position as the trial court, with all facts set out in the pleadings or exhibits.” Head & Engquist Equip. v. Penelore Corp., 864 So.2d 1025, 1028, (¶ 6) (Miss. Ct. App. 2004).

DISCUSSION

¶22. “Mississippi must give full faith and credit to all final judgments of other states and federal courts unless (1) the foreign judgment itself was obtained as á result of some false representation without which the judgment would not have been rendered, or (2) ‘the rendering court did not have jurisdiction over the parties in the subject matter.’ ” Schwartz v. Hynum, 933 So.2d 1039, 1042 (¶ 9) (Miss. Ct. App. 2006) (internal citation omitted); see U.S. Const, art. IV, § 1. Additionally, “[i]t is well settled that a judgment rendered by a court of competent jurisdiction in a sister state is entitled to a presumption of validity as to that court’s assumption of jurisdiction, and the burden is on the party attacking the judgment to affirmatively show its invalidity.” Galbraith & Dickens Aviation Ins. v. Gulf Coast Aircraft Sales Inc., 396 So.2d 19, 21 (Miss. 1981); see also Linde Health Care Staffing Inc. v. Claiborne Cty. Hosp., 198 So.3d 318, 324 (¶25) (Miss. 2016).

¶ 23. We therefore must examine whether the foreign judgment herein “was obtained as a result of some false representation” or whether “the rendering court did not have jurisdiction over the parties,” which would then prevent this Court from giving full faith and credit to the North Carolina judgment. Schwartz, 933 So.2d at 1042 (¶ 9). This Court must presume the superior court’s exercise of jurisdiction herein to be valid. Galbraith, 396 So.2d at 21. Eagle Green bears the burden of proving that the North Carolina judgment is invalid. Id.

¶ 24. Eagle Green argues that For-site’s failure to provide proper notice of the default-judgment hearing in North Carolina constitutes a deliberate act of deceit and fraud. Eagle Green submits that since it made an appearance in the matter by filing its “Defenses and Answer,” North Carolina law mandates that Forsite must then provide Eagle Gi*een with three days’ notice of the default-judgment hearing. N.C. Gen. Stat. § 1A-1, Rule 55(b)(2)(a). As a result, Eagle, Green asserts that the North Carolina judgment should be found null and void. Eagle Green also argues that the North Carolina judgment should be found null and void because the superi- or court failed to make a finding of clear and convincing evidence before awarding Forsite punitive damages.

¶ 25. We find no eiror in the circuit court’s finding that Eagle Green’s arguments regarding lack of notice and punitive damages are barred by res judicata. The circuit court cited to Rule 60(b) and explained that “any action to set' aside the captioned judgment on the grounds of fraud or misrepresentation must be undertaken ‘not more than six (6) months after the judgment ... was entered or taken.’ ”

¶ 26. The circuit court held that

The North Carolina Judgment at issue was entered in the [superior court] of Mecklenburg County, North Carolina on March 26, 2015 and enrolled in the judgment records of Jefferson Davis County Circuit Court on June 3. 2015. [Eagle Green’s] Motion to Set Aside the Judgment was not filed until February 24, 2016 and is therefore time barred pursuant to ... Rule 60(b).

¶27. Furthermore, pursuant to Mississippi Code Annotated section 11-7-305(3) (Rev. 2004), Eagle Green possessed twenty days from the date of enrollment of the North Carolina judgment to contest the enrollment. The record contains no motion or appeal by Eagle Green regarding the enrollment of the North Carolina judgment in the circuit court. Since Eagle Green failed to contest the enrollment of the North Carolina judgment within the twenty days allowed by statute, we find that its defenses to the enrollment were not properly before the circuit court. See Schwartz, 933 So.2d at 1042 (¶ 10).

¶ 28. Regarding jurisdiction, as stated, the circuit court herein found that Eagle Green’s “Defenses and Answer,” filed in response to Forsite’s motion for entry of default in North Carolina, “sought not only to assert a defense, but also an affirmative claim ... invoking the jurisdiction of the North Carolina court.” However, the circuit court held that “any jurisdictional issues concerning the validity of the North Carolina judgment must be adjudicated in the Superior Court of Mecklenburg County, North Carolina, where said judgment was rendered.” Like the circuit court below, we also find res judicata dispositive. See Glob. Oceanic Enters. Inc. v. Hynum, 857 So.2d 659, 663 (¶ 18) (Miss. 2003); Schwartz, 933 So.2d at 1042-43 (¶¶ 12-14).

¶29. North Carolina General Statute section l-277(b) provides that “[a]ny interested party shall have the right of immediate appeal from an adverse ruling as to the jurisdiction of the court over the person or property of the defendant or such party may preserve his exception for determination upon any subsequent appeal in the cause.” N.C. Gen. Stat. § l-277(b). The record before us reflects no motion for a new trial or direct appeal of the North Carolina judgment filed by Eagle Green.

¶ 30. After our review, we find that the circuit court did not err in giving full faith and credit to the North Carolina judgment and ordering that Hancock Bank disburse the garnished funds to Forsite’s attorney. Accordingly, we affirm the circuit court’s judgment.

¶ 31. AFFIRMED.

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

      . The record reflects that on August 25, 2015, the deputy sheriff filled out a sheriffs return indicating that he was unable to serve copies of the order sustaining Forsite’s motion for a judgment debtor examination upon Eagle ' Green. On September 2, 2015, the circuit court issued a second order, which provided a new and corrected address for Eagle Green’s registered agent.

      . Rule 60(b) provides, in pertinent part:
      On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) fraud, misrepresentation, or other misconduct of an adverse party; (2) accident or mistake; (3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; (6) any other reason justifying relief from the judgment.
      The motion shall be made within a" reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceeding was entered or taken.

      . See Schwartz, 933 So.2d at 1042-43 (¶¶ 12-14).


author: LEE, C.J., BARNES, J.,

text:
    Tony L. PAGADOR, Appellant v. TRUSTMARK NATIONAL BANK, Appellee
    NO. 2016-CA-00879-COA
    Court of Appeals of Mississippi.
    08/29/2017

      ATTORNEYS FOR APPELLANT: TIMOTHY BROWN, WILLIAM JOSEPH KERLEY
    ATTORNEYS FOR APPELLEE: WILLIAM .“TREY” JONES III, WILLIAM DEMENT DRINKWATER, TAYLOR BRANTLEY MCNEEL
   LEE, C.J.,

FOR THE COURT:

¶ 1. Tony Pagador appeals the judgment of the Harrison County Circuit Court granting Trustmark National Bank’s motion for summary judgment arising from the foreclosure of Pagador’s home. Following a de novo review, we affirm.

FACTS AND PROCEDURAL HISTORY .

¶ 2. In 2006, Pagador purchased a home at 13429 .Libby Lane in Gulfport, Mississippi. To purchase the home, Pagador entered into a deed of trust with T. Graham Mortgage Inc., which was secured with a promissory note. The deed of trust contained a “[rjider” and incorporated an addendum from the Department of Veteran Affairs (VA) guaranteeing the loan, as Pa-gador was a veteran with the United States Coast Guard. T. Graham Mortgage assigned the deed of trust to Trustmark National Bank.

¶ 3. Pagador made .timely mortgage payments on the loan up until June 2010, when he learned that the house contained toxic Chinese drywall. Pagador and. his family then moved out of the home so that remedial work could be performed on the house. He asked Trustmark for a forbearance from monthly loan payments for the period of time he and his family were' not living in the home while repairs were being made. Trustmark offered Pagador a special VA forbearance and informed him by letter, which he signed and returned, that his loan was in forbearance from July 1, 2010, through December 31, 2010. The letter further specified that after December 31, 2010, Pagador would “be required to pay the total amount past due for the period of time in which no payments were made .... ”

¶ 4. In May 2011, Pagador requested an additional forbearance period because the drywall repair was still not complete. Trustmark issued a second forbearance period, which the parties agree ended August 31, 2011. In September 2011, Pagador requested a third forbearance period because the drywall remediation was still not complete. In an email to Trustmark dated February 13, 2012, Karla Pagador, Paga-dor’s mother, alleged that James Hodges, a VA representative, had verbally advised Pagador that Trustmark had extended the forbearance until March 7, 2012. However, there was no' communication, documentation, or other evidence indicating Trust-mark had granted a third or extended forbearance. Rather, Pagador was notified by substitute trustee, Gerald Warren, via certified mail dated February 10, 2012, that Trustmark was foreclosing on the home.

¶ 5. Specifically, the notice letter stated that “Trustmark National Bank [had] previously notified [Pagador] by certified mail that the above referenced loan [was] in default and declared all of the indebtedness secured by [the deed of trust] ... to be due and owing.” The notice advised that Warren had been instructed to initiate foreclosure proceedings and stated that the foreclosure was scheduled for March 22, 2012. The notice further provided that “[i]n order to cure the default and reinstate the loan, the amount of $21,585.75 is due .... ” Finally, the notice advised that the loan* must be reinstated or paid in full prior to the day of sale, and if not reinstated or paid in full, then the foreclosure sale would proceed as indicated.

¶ 6. It is undisputed that Pagador made no mortgage payments after June 2010. Pagador did not cure the default, and neither did he object to the foreclosure. On March 22, 2012, Trustmark foreclosed on Pagador’s home. Pagador now appeals.

STANDARD OF REVIEW

¶ 7. This Court employs a de novo standard when reviewing a circuit court’s grant of summary judgment. Blanchard v. Mize, 186 So.3d 403, 405 (¶ 11) (Miss. Ct. App. 2016) (citing In re Admin. of Estate of May, 32 So.3d 1227, 1229 (¶ 5) (Miss. Ct. App. 2010)). Summary judgment should be granted where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as tb any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. (quoting M.R.C.P 56(c)). We must examine all of the evidence before the trial court in the light most favorable to the nonmoving party. Id. “The party opposing the motion may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in Rule 56, must set forth specific facts showing that there is a genuine issue for trial.” Id. (quoting Estate of May, 32 So.3d at 1229 (¶ 5) (quoting M.R.C.P. 56(e))). “Bare assertions are not enough to avoid summary judgment .... ” Lott v. Purvis, 2 So.3d 789, 792 (¶ 11) (Miss. Ct. App. 2009) (internal quotations and citations omitted).

DISCUSSION

¶8. Pagador argues that the circuit court erred in granting Trustmark’s motion for summary judgment. Specifically, Pagador asserts there is a genuine issue of material fact regarding (1) whether Paga-dor was in default at the time Trustmark foreclosed on his home and (2) whether Trustmark breached the contract by failing to follow the conditions precedent specified in the deed of trust and the VA regulations and guidelines prior to foreclosing on Pagador’s home.

I. Default

¶ 9. Pagador claims he was not in default at the time Trustmark foreclosed because he was in a special VA forbearance. However, Trustmark met its burden of showing an absence of a genuine issue of material fact with respect to this claim. The record shows and the parties agree that Pagador was granted two forbearance periods: one from July 1, 2010, through December 31, 2010, and a second from May 2011 through August 31, 2011. Paga-dor now claims in his brief on appeal that the forbearance “was extended up until on or about March 7, 2012,” and again that “his special VA forbearance period was repeatedly extended all the way up to the March 22, 2012 foreclosure sale.” But, apart from his bare assertions, Pagador provided no evidentiary support for this claim.

¶ 10. The Mississippi Supreme Court has held that “other than undenied allegations in the party’s pleadings and [Mississippi Rule of Civil Procedure] 36 admissions, all material submitted in opposition to summary judgment must be sworn.” Handy v. Madison Cty. Nursing Home, 192 So.3d 1005, 1010 (¶ 16) (Miss. 2016). As such, the email in which Paga-dor’s mother, a nonparty, asserts that Hodges, also a nonparty, purportedly told Pagador that a third forbearance had been approved is improper summary-judgment evidence. Pagador failed to produce any documentation, affidavits, or otherwise proper summary-judgment evidence to support his claim that he was still in forbearance. In fact, neither Pagador’s complaint nor his affidavit claims that a third or extended forbearance was ever granted.

¶ 11. Under the terms of the promissory note, Pagador was in default when he failed “to pay the full amount of each monthly payment on the date it [was] due.” The facts clearly show that Paga-dor’s last mortgage payment was made in June 2010 and that his final forbearance period ended August 31, 2011. As such, it is clear there is no genuine issue regarding whether Pagador was in default at the time of the foreclosure on March 22, 2012. This issue is without merit.

II. Breach of Contract

¶ 12. Pagador also asserts that Trust-mark breached the parties’ contract by failing to comply with VA regulations and guidelines by extending the time period for foreclosure and by failing to provide him with proper notice of acceleration prior to foreclosure.

A. VA Regulations and Guidelines

¶ 13. Pagador argues that Trust-mark was required to comply with VA regulations and guidelines, to specifically extend the time period for foreclosure. However, in his appellate brief, Pagador admits that nothing in Mississippi law has addressed VA regulations and guidelines being incorporated into a mortgage. Furthermore, there is nothing in the deed of trust, VA rider, VA regulations, VA servicing guidelines, or otherwise that would require Trustmark to grant an additional forbearance, extend the time prior to the foreclosure, or refrain from foreclosure. In response to Trustmark’s motion for summary judgment, Pagador does not cite to any specific VA regulations or guidelines that would require an additional forbearance period or prohibit the lender from foreclosure. Rather, Pagador references generally the VA guidelines’ stated purpose of limiting foreclosures on VA guaranteed loans through various loss-mitigation options, including repayment plans, loan modifications, special forbearance, compromise sale, or deed in lieu of foreclosure.

¶ 14. Indeed, Trustmark participated in such loss-mitigation options by extending Pagador two forbearance periods. There was nothing in the deed of trust or other incorporated documents that imposed a duty on Trustmark to grant an additional forbearance period or otherwise refrain from foreclosure. Accordingly, there is no genuine'issue of material fact with respect to whether Trustmark breached the contract by failing to comply with VA guidelines and regulations.

B. Notice of Acceleration

¶15. Pagador also argues" that Trustmark was required under the deed of trust to “give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument .... ” However, the mortgage addendum for the VA guaranteed loan specifically stated, “The Borrower agrees that the Lender or its assignee may at any time without prior notice accelerate all payments under the Deed to Secure Debt and Note and exercise any other remedy allowed by- law, including foreclosure, for breach of the Deed to Secure Debt or Note .,.(Emphasis added)'. Furthermore, the addendum provided that “[i]n the event of any conflict between the provisions of this Rider and the provisions of the Deed to Secure Debt or Note, the provisions of this Rider shall control.” As such, the addendum controls, and Trust-mark was not required to give notice prior to acceleration of the debt. This issue, is-without merit.

III. Pagador’s Remaining Claims

' ¶ 16." Pagador also asserts Various other arguments, including misrepresentation, fraud, promissory estoppel, negligence, wrongful foreclosure, negligent infliction ‘ of emotional distress, unjust enrichment, breach of the implied covenant of good faith and fair dealing, and breach of fiduciary duty. None of the facts in the record, when.viewed in light most favorable to Pagador,, support these claims. Under the terms of the deed of trust, promissory note, and VA rider, Trustmark was well within its rights to foreclose. After granting Pagador two separate forbearance periods, Trustmark notified him of the foreclosure proceedings. Pagador failed to object to the foreclosure, and the foreclosure took place as set forth. When a property owner fails to object to the foreclosure before the sale, he has waived any ground to challenge the foreclosure. Robinson v. Trustmark Nat’l Bank, 179 So.3d 1146, 1150 (¶ 19) (Miss. Ct. App. 2015); Thus, in addition to the fact that these claims-lack merit, Pa-gador has waived the right to raise them on appeal.

¶ 17. The concurring opinion interprets Robinson as holding that if a debtor does not object before, during, or immediately after the foreclosure sale, he has “waived only his right to have the sale set aside ..,. ” In doing so, the concurring opinion states that “Pagador’s failure to object ... waived only his right to have the sale set aside, not a claim for damages.” However, Robinson states that a failure to raise objections before the sale “waived any ground to challenge the foreclosure.” Robinson, 179 So.3d at 1150 (¶ 19). The concurring opinion mistakes “challenge. the foreclosure” as synonymous with “have the sale set aside.” Thus, the concurring opinion confuses the right available to the injured mortgagor—to challenge the sale through a, wrongful-foreclosure action— with-the remedies available to the injured mortgagor—“(1) having the-sale set aside and (2) recovering from the mortgagee the damages suffered as a result of the wrongful foreclosure.”, Nat'l Mortg.Co. v. Williams, 357 So.2d 934, 936 (Miss. 1978). In the instant - case, Pagador seeks the remedy of damages—however, his cause-of action remains one for wrongful foreclosure. Our body of caselaw on wrongful foreclosures is not rendered inapplicable in the instant case simply because, here, the mortgagor seeks the remedy of damages. Accordingly, Pagador’s failure to object to the sale waived any grounds to challenge the foreclosure.

. ¶ 18. AFFIRMED.

GRIFFIS, P.J., CARLTON AND WESTBROOKS, JJ., CONCUR. IRVING, P.J., AND ISHEE, J„ CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY ISHEE, J. WILSON, J„ CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. FAIR AND GREENLEE, JJ., NOT' PARTICIPATING.

BARNES, J.,

SPECIALLY CONCURRING:

¶ 19. While I concur-with the majority’s affirming the circuit court’s grant of summary judgment to Trustmark, I disagree with the determination that Pagador waived his claims by failing to object to the foreclosure sale.

¶20. To support its finding of waiver, the circuit court cited Jackson v. Bank of America, No. 3:13CV581-LG-JCG, 2014 WL 5511017, at *5 (S.D. Miss. Oct. 31, 2014), which held that when a mortgagor has actual notice of a foreclosure sale and fails to object, he is “estopped from subsequently challenging the title of the purchaser.” However, what the circuit court failed to consider is the district court’s holding that'the plaintiffs claims for negligence, unjust enrichment, and fraudulent conveyance should be dismissed “because each of these claims seeks to have the sale voided or set aside for irregularities in the foreclosure sale.” Id. at *6 (emphasis added). Similarly, the majority cites Robinson v. Trustmark National Bank, 179 So.3d 1146, 1150 (¶ 16) (Miss. Ct. App. 2015), where this Court held- that because the appellant failed to raise her issues before the sale, she waived “any ground to challenge the foreclosure.” In that case, we noted our - “consistent” holding that if a debtor , does not object before, during, or immediately after the foreclosure sale, “he waives his grounds for challenging the sale.” Id. (emphasis added); see also Nichols v. Bush, 913 So.2d 387, 391 (¶ 22) (Miss. Ct. App. 2005) (finding a plaintiffs “silence” during the foreclosure sale “waived any irregularity in the sale and ... estopped [him] from seeking to have the foreclosure set aside”). Were Pagador seeking to set aside the foreclosure sale, I would agree with the circuit court and the majority that he had waived his claims.

¶21. But as Pagador asserts, he does not “seek to have the sale voided or set aside for irregularities in the foreclosure sale”; he seeks monetary damages. Therefore, Jackson and Robinson are inapplicable to this case, as neither stands for the proposition that there is absolutely no relief available to a plaintiff after foreclosure if he fails to object to the proceedings. These cases simply hold that if a plaintiff makes no objection to the foreclosure, he may not challenge or set aside the sale.

¶ 22. I have found no precedent that a plaintiff waives any and all rights to bring an action for damages for wrongful foreclosure if he fails to object to the sale. In National Mortgage Company v. Williams, 357 So.2d 934, 936 (Miss. 1978), the Mississippi Supreme Court stated:

In general, the authorities support the rule that an action at law by the mortgagor- against the mortgagee will lie to recover damages for a wrongful foreclosure that is, a foreclosure without right, which would ordinarily be ineffective and invalid irrespective of the manner in which it is executed. Generally, in such circumstances, the mortgagor has the right to elect between (1) having the sale set aside and (2) recovering from the mortgagee the damages suffered' as a result of the wrongful foreclosure. Actions at law for damages for premature foreclosures have been sustained, particularly where a required demand of payment was not made to accelerate maturity, although there is authority to the effect that a right to maintain such an action may be lost by electing to proceed in equity for the return of the equity of redemption and obtaining a decree ordering restoration of the property.

(Quoting 55 Am. Jur. Mortgages § 535, 516-17 (1971)). Thus, our supreme court has distinguished between the two types of relief requested in an action for wrongful foreclosure. See also C & K Invs. v. Fiesta Grp, Inc., 248 S.W.3d 234, 254 (Tex. App. 2007) (The failure to foreclose on property properly “gives rise to a cause of action for either the return of the property or damages.”) (emphasis added). Pagador’s failure to object prior to, or immediately after, the sale waived only his right to have the sale set aside, not a claim for damages.

ISHEE, J., JOINS THIS OPINION.

      . This holding is grounded on the doctrine of equitable estoppel;
      [O]ne of the established rules of the doctrine is that, if a person knowingly suffers another to expend money on land under an erroneous opinion of title, although he does it passively by looking on without making known his claim, he shall not afterwards be permitted to enforce his legal right against such other.

        Nichols, 913 So.2d at 391 (¶ 20) (quoting Kelso v. Robinson, 172 Miss. 828, 840-41, 161 So. 135, 137 (1935)).

      . The Robinson court found the former property owner "had a duty to speak, and her silence as to the legitimacy of the foreclosure and the documents supporting the sale effectively estopped her from- challenging the title of the subsequent purchaser.” Robinson, 179 So.3d at 1149 (¶ 15) (emphasis added).


author: WILSON, J.,

text:
    Carol DEARMAN a/k/a Carol Lee Dearman a/k/a Carol L. Dearman, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00965-COA
    Court of Appeals of Mississippi.
    09/05/2017
    ATTORNEY FOR APPELLANT: CAROL L. DEARMAN (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT
    BEFORE LEE, C.J., FAIR AND WILSON, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1. On November 29, 2011, in the Madison County Circuit Court, Carol Dearman pled guilty to motor vehicle theft as a nonviolent habitual offender. See Miss. Code Ann. §§ 97-17-42 (Rev. 2014) & 99-19-81 (Rev. 2015). At Dearman’s plea hearing, the assistant district attorney represented that Dearman took a gray Chevy Silverado from its owner at the Red Roof Inn in Ridgeland without the owner’s permission. Dearman claimed that the owner loaned her the car, but she entered a valid “Alford plea,” admitting under oath that the State could prove its case beyond a reasonable doubt and that it was more likely than not that a jury would convict her. See North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The circuit court accepted her plea as knowing and voluntary and sentenced her to ten years in the custody of the Mississippi Department of Corrections as a nonviolent habitual offender, said sentence to run concurrently to sentences previously imposed in Hinds County.

112. On September 12, 2016, Dearman filed a petition for an “Order to Amend Sentencing per MS Code Section 99-1-5.” Dearman’s petition alleged that her conviction should be set aside because her indictment was returned outside of the applicable two-year statute of limitations. The circuit court dismissed Dearman’s petition, which it construed as a petition for post-conviction relief, because it was filed almost five years after Dearman pled guilty. See Miss. Code Ann. § 99-39-5(2) (Rev. 2015) (a motion for post-conviction relief must be filed within three years after the entry of a judgment of conviction based on a guilty plea). The court also noted that the underlying statute of limitations issue was discussed on the record at Dearman’s plea hearing. At her plea hearing, Dear-man’s attorney acknowledged that the prosecution was not barred by the statute of limitations because a warrant was issued for her arrest within about six weeks of the offense. See Miss. Code Ann. § 99-1-7 (Rev. 2015) (“A prosecution may be commenced, within the meaning of Section 99-1-5 by the issuance of a warrant .... ”); see also Conerly v. State, 607 So.2d 1153, 1158 (Miss. 1992) (holding that a valid guilty plea waives a statute of limitations defense).

¶ 3. The circuit court correctly ruled that Dearman’s petition for post-conviction relief is time-barred and without merit.

¶ 4. AFFIRMED.

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


author: WILSON, J„

text:
    Anthony Earl LOVERN a/k/a Anthony Lovern, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01422-COA
    Court of Appeals of Mississippi.
    09/05/2017
    ANTHONY EARL LOVERN (PRO SE), ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE, JACKSON, ATTORNEY FOR APPELLEE
    BEFORE LEE, C.J., FAIR AND WILSON, JJ.
   WILSON, J„

FOR THE COURT:

¶ 1. In December 2009, Anthony Earl Lovern pled guilty to gratification of lust (Count I) and statutory rape (Count II). In his plea petition and at his plea hearing, Lovern admitted under oath that he had rubbed his penis against the vaginal area of a twelve-year-old child for the purpose of gratifying his lust; this occurred in 2006 when Lovern was approximately twenty-nine years of age. Lovern also admitted under oath that he had sexual intercourse with an eleven-year-old child (a different child); this occurred in 2005 when Lovern was approximately twenty-eight years of age. The circuit court accepted Lovern’s plea after finding that it was knowing, voluntary, and supported by a sufficient factual basis. The court sentenced Lovern to fifteen years on Count I, with five years suspended, and ten years on Count II, with ten years suspended, said sentences to run concurrently, and five years of supervised probation.

¶ 2. On August 22, 2016, Lovern filed a petition for post-conviction relief in the circuit court. He alleged that he is actually innocent of the charges, that his plea was “entered due to coercion and fear induced by his defense attorney,” and that there was not a sufficient factual basis for his plea. Lovern’s petition is supported by only his own allegations and is refuted by his plea petition and the transcript of his plea hearing. The circuit court concluded that Lovern’s petition was time-barred because it was filed almost seven years after he pled guilty and did not fall within any of the exceptions to the statute of limitations of the Uniform Post-Conviction Collateral Relief Act. See Miss. Code Ann. § 99-39-5(2) (Rev. 2015) (a motion for post-conviction relief must be filed within three years after the entry of a judgment of conviction based on a guilty plea).

¶ 3. The circuit court correctly ruled that Lovern’s claims are time-barred and without merit. Therefore, we affirm.

¶ 4. AFFIRMED.

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


author: GRIFFIS, P.J.,

text:
    Matthew LADNER, Appellant v. ZACHRY CONSTRUCTION and Zurich American Insurance Company, Appellees
    NO. 2015-WC-01044-COA
    Court of Appeals of Mississippi.
    07/26/2016
    Rehearing Denied September 5, 2017

      ATTORNEYS FOR APPELLANT: JAMES KENNETH WETZEL, GARNER JAMES WETZEL
    ATTORNEY FOR APPELLEES: WALTER J. EADES
   MODIFIED OPINION ON MOTION FOR REHEARING

GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. The motion for rehearing is denied. The previous opinion of this Court is withdrawn, and this opinion is substituted in its place.

¶2. Matthew Ladner appeals the decision of the Mississippi Workers’ Compensation Commission (Commission) denying his claim for permanent-partial-disability benefits. The Commission overturned the ruling by the administrative judge (AJ) that Ladner’s former employer, Zachry Construction, and its insurance carrier, Zurich American Insurance Company (collectively “Zachry”), owed Ladner disability payments. Finding Ladner proved his permanent-partial disability, this Court reverses and renders.

FACTS

¶ 3. On December 27, 2006, Ladner injured his lower back while working for Zachry. Ladner returned to work a few days after the incident, but continued to experience pain. On January 31,2007, Lad-ner visited Dr. Kevin Cooper. Dr. Cooper diagnosed Ladner with a lumbar strain, but concluded that Ladner did not need surgery and allowed him to return to work under light or regular work duties as tolerated. Ladner returned to Dr. Cooper on February 9 and February 16, 2007. An MRI conducted on February 27, 2007, indicated a slight narrowing at T10-11, a slight bulge at L4-5, and minimal protrusion at L5-S1. Based on the MRI results, Dr. Cooper referred Ladner to Dr. Lee Kesterson, a neurosurgeon.

¶4. On March 15, 2007, Dr. Kesterson evaluated Ladner. Dr. Kesterson concurred with Dr. Cooper’s diagnosis of a lumbar strain, recommended physical therapy, and released Ladner for light-duty work. Ladner saw Dr. Kesterson again on May 7, 2007, and June 26, 2007. Dr. Kes-terson recommended continued physical therapy and conditioning. On July 30, 2007, a functional capacity exam (FCE) indicated that Ladner could function in the medium range of physical ability for work duties.

¶ 5. On September 25,2007, and January 15, 2008, Ladner returned for follow-up visits with Dr. Kesterson. On March 28, 2008, Ladner underwent a lumbar discography, which did not reveal any problems warranting surgery. Ladner returned to Dr. Kesterson on May 2, 2008, and on May 7,2008, a second FCE showed that Ladner remained at a medium-range physical ability for work.

¶ 6. On May 20, 2008, Dr. Kesterson concluded Ladner met his maximum medical improvement (MMI). Dr. Kesterson assessed Ladner with a five-percent impairment to his body as a whole and issued permanent work restrictions. Ladner did not seek any further medical treatment for his back pain other than pain management from his family-medicine doctor, Dr. James Crittendon.

¶7. Ladner continued to work for Za-chry after reaching MMI. On or around December 1, 2008, Zachry laid off Ladner, along with other workers. Ladner remained unemployed until June 2011, when he gained employment at King Construction. In January 2012, Ladner voluntarily left King to work for Science Applications International Corporation (SAIC) at the Stennis Space Center. SAIC hired Ladner as a full-time employee in August 2012, where he remained employed as of the time of the AJ’s order.

PROCEDURAL HISTORY

¶ 8. On August 24, 2009, Ladner filed his petition to controvert. The AJ heard the arguments of the parties and found Lad-ner was entitled to benefits. This decision was appealed to the Commission, which overturned the AJ’s decision. The Commission found that the two-year statute of limitations for filing a claim precluded Ladner’s petition. Ladner appealed to the Harrison County Circuit Court, First Judicial District. On February 23, 2012, the circuit court affirmed the Commission’s judgment, and this Court affirmed the circuit court’s order on May 14,2013.

¶ 9. On January 30, 2014, the Mississippi Supreme Court reversed this Court’s judgment and held that though Ladner received post-injury wages, the wages were in lieu of workers’ compensation for his injury. See Ladner v. Zachry Const. (Ladner I), 130 So.3d 1085, 1089 (¶ 15) (Miss. 2014). As such, the supreme court ruled that Ladner filed his petition to controvert within the two-year period because the wages in lieu of compensation tolled the statute of limitations. Id.

¶ 10. This appeal arises from the second set of proceedings after the supreme court remanded the case. On remand, the AJ allowed additional discovery and conducted a hearing on October 8, 2014. On December 12, 2014, the AJ ruled that Ladner was entitled to permanent-partial benefits of $128.01 per week for 450 weeks. Zachry appealed the AJ’s order to the full Commission.

¶ 11. On June 24, 2015, the Commission, in a 2-1 decision, reversed the AJ’s order and found that Ladner failed to prove a loss of wage-earning capacity to sustain a claim for permanent-partial disability. The Commission further ruled that Ladner failed to demonstrate his termination from Zachry and his period of unemployment were causally related to his on-the-job injury. The dissenting commissioner asserted' that Ladner’s FCE assessment of medium-duty work, the testimony, his termination, his reasonable job search, and his lower post-injury wages supported a finding of a loss of wage-earning capacity. .

¶ 12. Ladner appeals the Commission’s order and asserts that the Commission’s decision was arbitrary and capricious, not supported by the substantial evidence, and contrary to the law.

STANDARD OF REVIEW

¶ 13. “The decision of the Commission will be reversed only if it is not supported by substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law.” Concert Sys. USA Inc. v. Weaver, 33 So.3d 1186, 1188 (¶ 10) (Miss. Ct. App. 2010) (citing Weatherspoon v. Croft Metals Inc., 853 So.2d 776, 778 (¶ 6) (Miss. 2003)). When the issue involves a question of law, however; the review is de novo. Davis v. Clarion-Ledger, 938 So.2d 905, 907 (¶5) (Miss. Ct. App. 2006) (citing Shelby v. Peavey Elecs, Corp., 724 So.2d 504, 506 (¶ 8) (Miss. Ct. App. 1998)).

ANALYSIS

¶ 14. Ladner argues • the Commission erred in reversing the-AJ’s order because he demonstrated a prima facie case for permanent-partial disability, which Zachry failed to rebut. Zachry counters that Lad-ner did not prove a prima facie- case of disability; thus, the burden remained on Ladner to prove a loss of wage-earning capacity.

¶ 15. “It is well settled that workers’ compensation claimants have ‘the burden of proving disability and the extent thereof.’” Smith v. Johnston Tombigbee Furniture Mfg. Co., 43 So.3d 1159, 1165 (¶ 21) (Miss. Ct. App. 2010) (quoting Lifestyle Furnishings v. Tollison, 985 So.2d 352, 359 (¶ 21) (Miss. Ct. App. 2008)). “‘Disability’ means incapacity because of injury to earn the wages which the employee was-receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings.” Miss.. Code Ann. § 71-3-3(i) (Rev. 2011).

¶16. “The concept of disability has components of both a physical injury and a loss of- wage-earning capacity.” Smith, 43 So.3d at 1165 (¶ 19) (citation omitted). “In order to meet the definition of disability, the claimant must not be able to obtain work in similar or other jobs, and the claimant’s unemployability' must be due to the injury in question.” Id. (citing Ga. Pac. Corp. v. Taplin, 586 So.2d 823, 828 (Miss. 1991)). Further, “[o]nce the claimant has made out a prima facie case, the employer assumes the burden to prove otherwise by showing that the claimant’s efforts constituted [a] mere sham or unreasonable effort.” Taplin, 586 So.2d at 828. Therefore, this Court must determine whether Ladner proved both his physical injury and his loss of wage-earning capacity to demonstrate disability.

¶ 17. The parties.stipulated that Ladner suffered a work-related injury on December 27, 2Q06, and reached MMI on May 20, 2008. To support his claim, Ladner submitted his medicaT records from Drs. Cooper and Kesterson from the time of his injury until MMI. Prior to his MMI, Ladner underwent two FCEs that indicated Ladner could only perform medium-duty work. Further, Dr.' Kesterson released Ladner for work with several restrictions, such as no stooping, bending, or squatting and no lifting over fifty-five pounds, Dr. Kester-son also assessed Ladner with a five-percent permanent impairment to his body as a whole.

¶ 18. Ladner presented this evidence through his medical records from Drs. Cooper and Kesterson. Ladner also testified to the extent of his injuries at a hearing on March 31, 2010, a deposition on May 5, 2014, and a second hearing on October 8, 2014. At the March 31, 2010 hearing, Ladner stated that he remained in the safety trailer for the majority of his employment, that he never returned to his normal work duties after the injury, and that he continued seeking pain management from Dr. Crittendon.

¶ 19. To rebut Ladner’s testimony, Za-chry proffered two witnesses to attest to Ladner’s work duties. The witnesses, Ian Devlin and Frank Young, testified that Ladner did not remain in the safety trailer as often as he stated and that Ladner performed other duties at the site. But their testimony did not contradict Ladner’s evidence that he did not return to his regular duties. Further, Zachry failed to present any evidence that disputed Lad-ner’s medical evidence. Therefore, Ladner presented sufficient evidence to establish his impairment.

¶ 20. Impairment alone, however, does not entitle Ladner to benefits. In addition to the medical evidence, “[disability is determined by comparing the employee’s pre-injury wages with the employee’s post-injury capacity to earn wages in the open labor market.” Univ. of Miss. Med. Ctr. v. Smith, 909 So.2d 1209, 1218 (¶ 31) (Miss. Ct. App. 2005) (citing Karr v. Armstrong Tire & Rubber Co., 216 Miss. 132, 137, 61 So.2d 789, 792 (1953)). “[Actual post-injury earnings will create a presumption of earning capacity commensurate with them but the presumption may be rebutted by evidence independently showing incapacity or explaining away the post-injury earnings as an unreliable basis for estimating capacity.” Cox v. Int’l Harvester Co., 221 So.2d 924, 926 (Miss. 1969) (citation omitted).

¶ 21. Zachry contends that Lad-ner remained employed after his MMI date and . until December 1, 2008, when Zachry laid off several workers, not just Ladner. This, according to Zachry, created a presumption that Ladner earned wages commensurate with his preinjury wages. However, this presumption is rebutted by demonstrating the wages are unreliable due to “[an] increase in general wage levels since the time of [the] accident; [the] claimant’s own greater maturity or training; longer hour's worked by [the] claimant after the accident; payment of wages disproportionate to capacity out of sympathy to [the] claimant; and the temporary and unpredictable character of post-injury earnings.” Omnova Sols. Inc. v. Lipa, 44 So.3d 935, 941 (¶ 17) (Miss. 2010) (quoting Russell v. Se. Utils. Serv. Co., 230 Miss. 272, 282, 92 So.2d 544, 547 (1957)).

¶ 22. To overcome this presumption, Ladner argues the wages are unreliable because he could not perform his previous job duties and Zachry paid him wages in lieu of compensation. The supreme court’s ruling in Ladner I held that Zachry paid Ladner wages in lieu of compensation at least until he reached MMI, Ladner I, 130 So.3d at 1089 (¶ 15), and there is no substantial evidence in the’record that'this changed during the less than seven months that followed between Ladner’s MMI and termination dates. Thus, the fact that Lad-ner received wages from Zachry after his MMI date does not create a presumption of no loss of wage-earning capacity.'Therefore, this Court must determine Ladner’s loss of wage-earning capacity as of his December 2008 layoff.

¶23. To determine loss of wage-earning capacity, “[t]he Commission considers the employee’s actual wages earned prior to the injury as compared to the employee’s capacity to earn those same wages after the injury, as well as other factors such as the employee’s .age, education, training and work experience, and his or her ability to return to the same or other employment.” Airtran Inc. v. Byrd, 953 So.2d 296, 301 (¶ 11) (Miss. Ct. App. 2007) (citing DeLaughter v. S. Cent. Tractor Parts, 642 So.2d 375, 379 (Miss. 1994)).

¶ 24. At the time of the October 8, 2014 hearing, Ladner was forty-seven years old and worked in maintenance. The parties stipulated that Ladner earned $728 per week compared to the $920 per week he earned at Zachry. Ladner testified that Zachry continued to employ him from his date of MMI until December 1, 2008, but he remained in the safety trailer nearly ninety-five percent of the time, which indicated his inability to work at his preinjury status. Further, Ladner testified he could not find employment within his work restrictions for several years and his current employer accommodates his restrictions. Based on this evidence, Ladner showed that his impairment related to his reduction of wages and resulted in a loss of wage-earning capacity.

¶25. The Commission, however, found that Ladner’s lower wages did not relate to his injury. The Commission relied on Zachry’s contention that Ladner did not remain in the safety trailer ninety-five percent of the time because witnesses testified that Ladner performed other duties. In the first hearing, Devlin and Young testified that Ladner performed other tasks such as “hole watching” and “filing.” But neither Devlin nor Young could contradict Ladner’s testimony, as neither knew the exact extent of Ladner’s work after his injury or after his MMI date. Thus, Za-chry did not rebut Ladner’s assertion that his disability was work-related.

¶ 26. Further, Ladner testified that he never returned to his preinjury duties, and he could not find employment at the same pay rate that he earned at Zachry. “If, because of the subject injury, the employee cannot secure employment at pre-injury pay, then the employee may be entitled to disability payments.” Taplin, 586 So.2d at 828 (citing Piper Indus. Inc. v. Herod, 560 So.2d 732, 734-35 (Miss. 1990)). Piper is instructive.

¶ 27. In Piper, the claimant (Herod) suffered from contact dermititis he suffered from exposure to sulfur dioxide at his job at Piper. Piper, 560 So.2d at 733-34. Medical evidence demonstrated that the job caused the dermititis and Herod could no longer work at Piper. Based on this, the supreme court affirmed the Commission’s findings that Herod was permanently partially disabled. Id. at 734. The Piper court further concluded that Herod’s lower wages in a different occupation coupled with his inability to obtain a job in the same industry as Piper entitled him to permanent-partial disability payments due to this loss of wage-earning capacity. Id. at 735.

¶ 28. Like in Piper, Ladner did not return to his preinjury duties and could not work in the same occupation as before. Ladner testified that he searched for jobs until finding a job with King Construction, but had to leave that position due to his impairment and work restrictions. Ladner also stated that his current job in maintenance accommodates his work restrictions and essentially constitutes light-duty work. Further, Zachry failed to rebut this testimony, Ladner’s work restrictions, or any medical evidence to overcome Ladner’s prima facie case of permanent-partial disability from the time of his layoff in 2008 to the present.

¶29. The substantial evidence demonstrated that Ladner proved a work-related injury, he suffered a loss of wage-earning capacity resulting in permanent-partial disability, and the injury related to his disability. Further, Zachry failed to rebut Ladner’s prima facie case of disability. For these reasons, we reverse the Commission’s order. We further render the case and reinstate the order of the AJ awarding Ladner $128.01 per week for 450 weeks and medical-treatment expenses.

¶ 30. REVERSED AND RENDERED.

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


author: SHAW, Justice.

text:
    EX PARTE GENESIS PITTMAN, D.M.D., P.C. (In re: Debra Blackmon v. Genesis Pittman, D.M.D., P.C., et al.)
    1150947
    Supreme Court of Alabama.
    December 2, 2016
    Tom Burgess and Ethan R. Dettling of Burgess Roberts, LLC, Birmingham, for petitioner.
    Victor R. Spencer, Birmingham; and Clarence Dortch III, Talladega, for respondent.
   SHAW, Justice.

Genesis Pittman, D.M.D., P.C. (“Pittman, P.C.”), petitions this Court for a writ of mandamus directing the Jefferson Circuit Court to vacate its order setting aside a prior summary judgment entered in favor of Pittman, P.C. We grant the petition and issue the writ.

Facts and Procedural History

In August 2014, the respondent, Debra Blackmon, filed a pro se action against Pittman, P.C., in the Jefferson Circuit Court. Blackmon’s complaint alleged negligence and dental malpractice. More specifically, Blackmon asserted that Pittman, P.C., had,'in connection with a tooth extraction, prescribed a medication for Blackmon to which she had a known allergy. Blackmon further alleged that she suffered an allergic reaction necessitating emergency medical treatment as well as a related fall resulting in physical injury.

Blackmon apparently failed, in accordance with the trial court’s scheduling order, to timely disclose the identity of an expert witness she had retained. After the expiration of the disclosure deadline, Pittman, P.C., filed a motion requesting a summary judgment in its favor on the primary ground that, based on the above-described failure to identify an expert, Blackmon could not establish a violation of the applicable standard of care by means of a “similarly situated health care provider” as contemplated by § 6-5-548, Ala. Code 1975. Blackmon, who had, by that time, .retained legal counsel, filed a response in opposition that included her own affidavit testimony and medical records. After a hearing, the trial court, on December 18, 2015, entered a summary judgment in favor of Pittman, P.C., as to all counts against it.

On January 16, 2016, Blackmon filed, pursuant to Rule 59(e), Ala. R. Civ. P., a postjudgment motion to alter, amend, or vacate the summary judgment in favor of Pittman, P.C. The trial court, by order entered March 23, 2016, scheduled Black-mon’s motion for, and ultimately conducted a hearing on, May 5, 2016. According to Pittman, P.C., however, by the time of the hearing, Blackmon’s motion had been, pursuant to Rule 59.1, Ala. R. Civ. P., denied by operation of law on April 15, 2016. On May 6, 2016—110 days after the filing of Blackmon’s postjudgment motion—the trial court entered an order purporting to grant Blackmon’s postjudgment motion. In response, Pittman, P.C., filed the instant petition contending, in part, that the trial court lacked jurisdiction to grant Black-mon’s January 16, 2016, motion. We ordered answers and briefs.

Standard of Review

‘““Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal tq.do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995). The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So.2d 805 (Ala. 2000).’
“Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala. 2003).”

Ex parte Progressive Specialty Ins. Co., 31 So.3d 661, 663 (Ala. 2009).

Discussion

Pittman, P.C., argues that, because Blackmon’s postjudgment motion was denied by operation of law before the trial court’s entry of an order purporting to dispose of that motion, the trial lost jurisdiction to rule. See, e.g., Ex parte Johnson Land Co., 561 So.2d 506, 508 (Ala. 1990) (“If the trial court allows a post-trial motion to remain pending, and not ruled upon, for 90 days, then the motion is denied by operation of law and the trial court loses its jurisdiction to further entertain that motion.” (citing Carnes v. Carnes, 365 So.2d 981 (Ala. Civ. App. 1978))). We agree.

In her answer, Blackmon contends that, by not raising the denial-by-operation-of-law issue in response to the trial court’s order setting a hearing on Black-mon’s postjudgment motion and in ultimately allowing, without objection, the motion to be heard as scheduled, Pittman, P.C., impliedly consented to an extension of the 90-day period provided for in Rule 59.1. Our courts have, however, previously rejected this argument:

“[A]ny consent to extend the 90-day period for ruling on a postjudgment motion must be in direct and unequivocal terms. This court explained in Personnel Board of Mobile County v. Bronstein[, 354 So.2d 8 (Ala. Civ. App. 1977)]:
“ ‘Black’s Law Dictionary 377 (4th ed. 1968) defines “express consent” as:
“ ‘ “That directly given either [orally] or in writing. It is positive, direct, unequivocal consent, requiring no inference or implication to supply its meaning.”
“ ‘The following definition of “express” is found in Words & Phrases, Vol. 15A, p. 522:
“ ‘ “ ‘Express’ means ‘made known distinctly and explicitly, and not left to inference or implication; declared in terms; set forth in words; manifested by direct and appropriate language, as distinguished from that which is inferred from conduct.... ””

354 So.2d at 10.”

Higgins v. Higgins, 952 So.2d 1144, 1146 (Ala. Civ. App. 2006). See also Alabama Elec. Co. v. Dobbins, 744 So.2d 928, 930 (Ala. Civ. App. 1999) (“ ‘There are only two methods listed in Rule 59.1 for extending the 90-day period: (1) the express consent of all parties to an extension of the 90-day period, or (2) the grant of an extension of time by an appellate court.’” (quoting Farmer v. Jackson, 553 So.2d 550, 552 (Ala. 1989))).

Blackmon fails to identify to this Court any affirmative indication in the proceedings below of the express consent of Pittman, P.C., to an extension of the 90-day period provided for in Rule 59.1. Instead, clear authority provides that the trial court’s error in setting a postjudgment motion for an initial hearing on a date beyond the 90-day period provided for in Rule 59.1 failed to extend the running of the 90-day period. See Alabama Dep’t of Indus. Relations v. Roberson, 97 So.3d 176, 177 (Ala. Civ. App. 2012). More particularly, Roberson aptly explains: “In the present case, the circuit court’s setting a hearing date for Roberson’s postjudgment motion did not toll the running of the 90-day period. ... In fact, Roberson’s motion had already been denied by operation of law, pursuant to Rule 59.1, Ala. R. Civ. P., ... before the hearing was held.” Id.

Although Blackmon urges this Court either to overrule or to “depart from” the rule of Roberson and its progeny because of the allegedly inequitable result in her case, she offers neither compelling rationale nor authority for doing so. As Blackmon notes, her postjudgment motion was, allegedly through no fault attributable to her, set for hearing after the expiration of the 90-day period contemplated by Rule 59.1. Despite the unfortunate result, this Court has explained that, “[m]ost importantly, the operation of Rule 59.1 makes no distinction based upon whether the failure to rule appears to be ‘inadvertent [or] deliberate ... [or] any other type of failure.’ ” Johnson Land Co., 561 So.2d at 508 (quoting Howard v. McMillian, 480 So.2d 1251, 1252 (Ala. Civ. App. 1985)). As Pittman, P.C., argues in its reply brief, Blackmon could have attempted to obtain, by consent, an extension of the time for ruling, could have sought an extension from or filed a notice of appeal to this Court, or could have sought an earlier hearing date below.

Here, it is undisputed that the trial court failed to rule on Blackmon’s motion within 90 days of the date on which the motion was filed. Under Rule 59.1, that motion was, therefore, denied by operation of law on April 15, 2016, at the expiration of that 90-day period. Thus, the trial court was without jurisdiction to enter any further order after April 15, and the trial court’s order purporting to set aside the summary judgment in favor of Pittman, P.C., was a nullity. See Roberson, 97 So.3d at 177.

In consideration of the foregoing, we conclude that Pittman, P.C., has demonstrated a clear legal right to the requested relief. Although we offer no opinion as to the legal merit of the trial court’s summary-judgment order, we nonetheless hold that, as of April 15, 2016, the trial court lost jurisdiction to vacate that order. We therefore grant the petition and issue the writ directing the Jefferson Circuit Court to vacate its order overturning its summary-judgment order in favor of Pittman, P.C.

PETITION GRANTED; WRIT ISSUED.

Stuart, Bolin, Parker, Murdock, Main, Wise, and Bryan, JJ., concur.

      . Blackmon’s complaint also named other defendants; however, the identity of those defendants and the disposition of the claims against them are irrelevant to this petition.

      . On the same date, the trial court also entered a judgment in favor of the other defendants. See note 1, supra.

      . Rule 59.1 provides as follows:
      "No postjudgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days, unless with the- express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to render an order disposing of any pending post-judgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.”.
      (Emphasis added.)

      . Although the limited materials before this Court do not include a transcript of the post-judgment hearing conducted by the trial court, Pittman, P.C., represents in its filings that it "orally raised the trial court's lack of jurisdiction based on Rule 59.1” during that proceeding.