author: WINDHORST, J.

text:
    LIFETIME HOMES, INC. d/b/a Lifetime Foundations v. Maria Elena SOSA a/k/a Maria Perez
    NO. 17-CA-63
    Court of Appeal of Louisiana, Fifth Circuit.
    September 08, 2017
    COUNSEL FOR DEFENDANT/APPELLANT, MARIA ELENA. SOSA A/K/A MARIA PEREZ, Ivan A. Orihuela

      DEFENDANT/APPELLANT, MARIA ELENA SOSA PEREZ, In Proper Person
    Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and Stephen J. Windhorst
   WINDHORST, J.

hln the instant appeal, Defendant-Appellant, Maria Perez, .sought review of the trial court’s judgment in favor of Plaintiff-Appellee, Lifetime Homes, Inc. D/B/A Lifetime Foundations (“Lifetime”). For the reasons that follow, this appeal is dismissed.

Factual & Procedural History

This case arises out of a dispute concerning shoring work performed by Lifetime on a property owned by Ms. Perez. The case originally proceeded to a bench trial in 2008, wherein judgment was entered in favor of Lifetime and against Ms. Perez, This Court subsequently reversed the trial court, vacated the trial court’s judgment, and remanded the matter for a new trial.

On March 28, 2016, the case proceeded to a second bench trial. Following the second bench trial, the trial court rendered judgment in favor of Lifetime and awarded Lifetime damages, attorney’s fees, interest, and costs. The instant appeal follows. Dismissal

On June 27, 2017, counsel for Lifetime, Roderick Christopher Patrick, filed a motion with this Court requesting an extension of time in which to file its brief. In its motion, counsel for Lifetime stated that it had been contacted by William Silvey, who purported to be Ms. Perez’s new attorney. Mr. Silvey had not enrolled as counsel of record, nor was a letter of, representation by him of Ms. Perez provided. The motion further stated that Ms. Perez had allegedly never given her attorney of record, Ivan A. Orihuela, permission to file the instant appeal. Finally, the motion stated that Mr. Silvey was attempting to negotiate a settlement with Lifetime. Lifetime’s motion was granted by this Court.

|2On August 25, 2017, Ms. Perez filed a Motion to Dismiss her appeal, stating that she “wishes to dismiss her appeal” and that she “had no knowledge of the appeal until retaining new counsel to discuss settlement with the appellee.” Mr. Silvey still had not enrolled as counsel with this Court, nor had he contacted this Court in any fashion with regard to this appeal. Thus, Mr. Orihuela remained counsel of record.

The appeal was set for oral argument on September 7, 2017. On that date, Ms. Perez appeared with Mr. Silvey and verified that he is now her attorney, and that she desires to dismiss .the instant appeal. Mr. Orihuela stated that, under the circumstances, he had no objection to dismissal of the appeal. Counsel for Lifetime, Mr. Patrick, further confirmed the pendency of settlement negotiations between the parties, and agreed to dismiss any potential claim for relief with regard to this appeal. Accordingly, the instant appeal is dismissed.

APPEAL DISMISSED

      . A detailed factual history of this case, as well as this Court’s reasons for reversing and vacating the trial court’s Judgment, are set forth in greater detail in Lifetime Homes, Inc. v. Sosa, 09-692 (La. App. 5 Cir. 04/27/10); 40 So.3d 202.


source: Caselaw Access Project

author: KITCHENS, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    Winfred FORKNER v. STATE of Mississippi
    NO. 2015-CT-01142-SCT
    Supreme Court of Mississippi.
    08/31/2017
    ATTORNEY FOR APPELLANT: WINFRED FORKNER (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER
   ON WRIT OF CERTIORARI

KITCHENS, JUSTICE, FOR THE COURT:

¶ 1. This Court has granted Winfred Forkner’s petition for certiorari for the purpose of correcting the erroneous disposition of his appeal by the Mississippi Court of Appeals. Years after his direct appeal was affirmed by the Court of Appeals, Forkner filed a motion for post-conviction relief in the Circuit Court of Wilkinson County. The circuit court denied the motion as untimely. Forkner appealed, and the Court of Appeals found that the circuit court was without authority to adjudicate the appeal because Forkner had not obtained the required permission from this Court to file his motion for post-conviction relief in the circuit court. See Miss. Code Ann, 99-39-7 (Rev. 2015). The Court of Appeals also held, erroneously, that the circuit court’s lack of authority to entertain the motion deprived the Court of Appeals of jurisdiction over the appeal. Thereupon, the Court of Appeals dismissed the appeal, thus allowing the circuit court’s erroneous judgment to stand.

¶2. Because the Court of Appeals did have jurisdiction to consider the lawfulness of the circuit court’s judgment, it erroneously dismissed Forkner’s appeal. Therefore, we reverse the judgment of the Court of Appeals. Because the circuit court lacked authority to entertain Forkner’s motion, as the Court of Appeals rightly determined, we vacate the circuit court’s judgment.

DISCUSSION

¶ 3. On February 26, 2001, a Wilkinson County jury convicted Winfred Forkner of the crime of burglary of a storehouse. See Miss. Code Ann. § 97-17-33 (Rev. 2014). The Circuit Court of Wilkinson County sentenced him as an habitual offender to life without the possibility of parole. See Miss. Code Ann. § 99-19-83 (Rev. 2015). Forkner appealed, and this Court assigned his appeal to the Court of Appeals, which affirmed his conviction and sentence. See Forkner v. State, 902 So.2d 615, 626 (Miss. Ct. App. 2004). Within a five-year period, Forkner filed three separate applications for permission to file a motion for post-conviction relief in the trial court. See Miss. Code Ann.§ 99-39-7. This Court denied Forkner’s first motion and dismissed his second and third motions as procedurally barred. Forkner never obtained permission from this Court to file a motion for post-conviction relief in the circuit court.

¶ 4. On January 9, 2014, Forkner filed a document entitled “Motion Pursuant to Rule 60(b)(4), (6) of the Mississippi Rules of Civil Procedure” in the Circuit Court of Wilkinson County. The circuit court found that this motion, in which Forkner sought relief from his conviction and sentence for burglary of a storehouse, was in the nature of a motion for post-conviction relief. See Miss, Code Ann. § 99-39-5(1) (Rev. 2015). The circuit court determined that the motion was procedurally barred because it was filed outside the three-year limitation period provided by the Uniform Post-Conviction Collateral Relief Act (UPCCRA). Miss. Code Ann. § 99-39-5(2) (Rev. 2015). Therefore, the circuit court denied the motion.

¶ 5. Forkner appealed, and this Court assigned the case to the Court of Appeals, which found that the circuit court had lacked authority to entertain Fork-ner’s motion. Forkner v. State, 230 So.3d 706,—, 2016 WL 4376520, at *2 (Miss. Ct. App. Aug. 16, 2016). The Court of Appeals found that the circuit court correctly had deemed Forkner’s filing a motion for post-conviction relief. Id. The Court of Appeals noted that, under Section 99-39-7 of the UPCCRA, when a petitioner has appealed and the conviction and sentence have been affirmed, “the motion under this article shall not be filed in the trial court until the motion shall have first been presented to a quorum of the Justices of the Supreme Court ... and an order granted allowing the filing of such motion in the trial court.” Miss. Code Ann. § 99-39-7 (Rev. 2015). Id. at —, 2016 WL 4376520 at *1. Thus, the Court of Appeals found that Forkner, having taken a direct appeal from his conviction, was not allowed to seek post-conviction relief in the circuit court without first having been granted permission to do so by this Court. Id. at —, 2016 WL 4376520 at *2. Because Forkner had not obtained permission to file a motion for post-conviction relief in the circuit court, the Court of Appeals correctly determined that the circuit court had lacked authority to adjudicate Fork-ner’s motion. Id.

¶6. But the Court of Appeals went on to conclude that, because the circuit court had no authority to consider Forkner’s motion, “we lack jurisdiction over his appeal.” Id. Due to the Court of Appeals’ perceived lack of jurisdiction, it dismissed the appeal. Id. The Court of Appeals correctly found that, because Forkner had filed his motion in the wrong court, neither it nor the circuit court had authority to adjudicate the merits of the motion. But the Court of Appeals incorrectly found that it lacked jurisdiction to determine whether the circuit court had authority to entertain the motion. A final judgment from which a timely notice of appeal.was filed confers jurisdiction upon an appellate court to determine whether the circuit court’s disposition was lawful. M.R.A.P. 4(a). Thus, the Court of Appeals had jurisdiction to determine whether the circuit court’s disposition of Forkner’s motion was lawful, and it erred-by failing to recognize its jurisdiction. Accordingly, the Court of Appeals’ dismissal of the appeal for lack of appellate jurisdiction was erroneous. Because the Court of Appeals had jurisdiction to consider Forkner’s appeal, it should have vacated the order of the circuit court that erroneously adjudicated his motion for post-conviction relief without authority. Therefore, we reverse the judgment of the Court of Appeals arid vacate the order of the Wilkinson County Circuit Court.

¶ 7. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE WILKINSON COUNTY CIRCUIT . COURT IS VACATED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KING, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.


author: WESTBROOKS, J., GRIFFIS, P.J.,

text:
    Earl ROSS and Maxcine Ross, Appellants v. Shellie R. STEWART, Appellee
    NO. 2015-CA-01801-COA
    Court of Appeals of Mississippi.
    DISPOSITION: 04/25/2017
    Rehearing Denied September 26, 2017

      - CHARLES E. MILLER, ATTORNEY FOR APPELLANT
    . w. stewart' robison, mi-CHELLE WROTEN VAN NORMAN, ATTORNEYS FOR.APPELLEE
    BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.
   WESTBROOKS, J.,

FOR THE COURT:

¶ 1. Shellie R. Stewart filed a' complaint for replevin of a mobile home in the possession of Earl and Maxcine Ross (“Ross-es”). The Rosses filed a counterclaim alleging, among other things, breach of contract. The Circuit Court of Pike County dismissed the Rosses’ counterclaim and scheduled' a trial on the replevin action. The court granted the replevin and awarded possession of the mobile home- to Stewart. The Rosses now appeal. After our review of the record) we affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. Genevieve Ross owned. a mobile home with her husband, Felder Ross, as joint tenants. She filed paperwork conveying title of the mobile home to herself following her husband’s death. Stewart purchased the title of the mobile home from Genevieve. The Rosses rented the mobile home from Genevieve for approximately five years. The Rosses contend they entered into an oral agreement with Stewart to purchase the mobile home for cash. Maxcine Ross testified that Stewart offered to sell the mobile home, at the price of $42,000 payable in monthly installments of $600 per month, without interest, provided full payment was received within one year. However, if it was not paid within one year, the price would increase to $52,000, with no interest charged. At trial, Stewart testified he was willing to sell, until the Rosses asked Stewart to finance the purchase of the home to allow them to pay rent. Stewart also testified that the Rosses wanted him to pay $300 dollars per month to keep the mobile home on their land, because Stewart was not legal owner of the land. However, Stewart rejected this agreement as well. Stewart and the Rosses testified that no money was ever paid to Stewart for the mobile home.

¶ 3. Stewart filed a complaint for replev-in against Earl Ross. Earl filed his response, defenses, and a counterclaim alleging breach of fiduciary duties, breach of contract, breach of implied covenants of good faith and fair dealing, fraudulent misrepresentation and/or omission, negligent misrepresentation and/or omission, uncon-scionability, emotional distress, and conspiracy. Earl also moved to add Genevieve and Webster Chess to the cause of action.

¶ 4. Stewart filed his answer, and Max-cine, Earl’s wife, was added as a party defendant to the action. The circuit court ordered the parties to brief the issue of whether the Rosses’ counterclaim could be entertained by the court at trial. The circuit court dismissed the counterclaim without prejudice and cited Finance America Private Brands, Inc. v. Durbin, 370 So.2d 1356 (Miss. 1979), holding that damages must be sought after judgment on the issue of possession and not by way of a counterclaim. Additionally, the circuit court found that the Rosses could file their action following the court’s decision on possession.

¶ 5. Although the circuit court ruled that there was no jurisdiction over the Rosses’ counterclaim, the court allowed the Rosses to present their defense of breach of contract. Finding no binding agreement between Stewart and the Rosses, the circuit court found that Stewart properly obtained title of the mobile home and granted the replevin. The Rosses were ordered to vacate the mobile home immediately. Stewart was given seventy-two hours to retrieve the mobile home from its location, because it was determined that Stewart did not own the land on which the mobile home was located. Additionally, after the circuit court dismissed their counterclaim, the Rosses filed a complaint in the County Court of Pike County alleging five of the seven original claims contained in the counterclaim against Stewart, Genevieve, and Chess.

STANDARD OF REVIEW

¶ 6. “Jurisdiction is a matter of law, which is reviewed de novo.” Magee v. Covington Cty. Bank, 119 So.3d 1053, 1056 (¶ 10) (Miss. Ct. App. 2012) (quoting Entergy Miss., Inc. v. Burdette Gin Co., 726 So.2d 1202, 1204-05 (¶ 5) (Miss. 1998)).

DISCUSSION

Whether the trial court erred in declining to accept jurisdiction of the counterclaim filed in response to the complaint in replevin.

¶ 7. Before the adoption of the Mississippi Rules of Civil Procedure (effective January 1, 1982), the Mississippi Supreme Court held that “after a careful consideration of the office of replevin, we have reached the conclusion that the Laws of 1975, ch. 508, do not permit a defendant to file a counterclaim or recoupment except for the specific statutory damages.” Gen. Motors Acceptance Corp. v. Fairley, 359 So.2d 1386, 1388 (Miss. 1978). “A replevin action is a possessory action for specific property and not a suit for monetary damages.” Id. “No provision is made under the above law for a judgment of money, except for the wrongful taking, detention, value of the specific property, or damages for wrongful suing out of the writ.” Id.

¶8. Now, we acknowledge that Mississippi Rule of Civil Procedure 13 allows the court to consider compulsory and permissive counterclaims:

(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. But the pleader need not state the claim if:
(1) at the time the action was commenced the claim was the subject of another pending action; or
(2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13; or
(b) Permissive Counterclaims. A pleading may state as a counterclaim any-claim against an opposing party not arising out of the transaction or occurrence that is the.subject matter of the opposing party’s claim.

¶9. The Rosses rely on Hall v. Corbin, 478 So.2d 253 (Miss. 1985), to support their assertion that their counterclaim should not have been dismissed. This Court has previously recognized the doctrines of ancillary and pendent jurisdiction. In Hall, the supreme court held:

We (and every other court in the land) have long held that once a court acquired actual subject matter jurisdiction of an action, other claims (whether asserted by the one or more of the original parties or by new or intervening parties), ancillary or pendent to the original claim could also be litigated in that action even though the ancillary or pendent claim standing alone may have been beyond the court’s jurisdiction.

Caterpillar Fin. Servs. Corp. v. Burroughs Diesel Inc., 125 So.3d 659, 674 (¶ 88) (Miss. Ct. App. 2013) (quotation marks omitted) (quoting Hall, 478 So.2d at 255).

¶ 10. This Court has also held that “in future similar actions, it would be preferable for such a dispute as this one to be determined in one court proceeding.” Id. We agree .with this Court’s previous ruling; however, this case presents a unique set of facts. The circuit court held a hearing to determine whether the Rosses’ counterclaims were viable, and the circuit court held that the claims could possibly be brought after the issue of replevin. Further, after the circuit court dismissed the allegations in their counterclaim without prejudice, except to the extent asserted as “legal defenses to the issue of replev-in,” the Rosses filed a complaint in the county court alleging five of the seven original claims contained in the counterclaim against Stewart, Genevieve, .and ■ Chess, • ■

¶ 11. The circuit court held that whatever matters occurred during- the replevin action did not affect the Rosses’ counterclaim. Thus, the circuit court concluded that the counterclaim was not considered a compulsory • counterclaim under Rule 13. We disagree with the lower court’s ruling that the counterclaim did not fall under Rule 13. The Mississippi Supreme Court has held that “the face of the complaint and its welF pleaded allegations are what courts look to when deciding whether they have authority to act at all .... ” City of Durant v. Humphreys Cty. Mem’l Hosp./Extended Care Facility, 587 So.2d 244, 250 (Miss. 1991) (citations omitted); see also Miss. Const. art. 6, § 159(a) & (f).

¶ 12. In following precedent, we acknowledge that where, a court is presented with á counterclaim, and the defendant raises a defense'’akin to the same counterclaim, the circuit court should exercise jurisdiction over the counterclaim.

¶ 13. However, while we find that the trial judge erred in dismissing the counterclaim, we find the, circuit court corrected its error by. hearing the facts and making a ruling regarding the Rosses’ counterclaim addressing the formation of a contract and any assertions related thereto. The following, is an excerpt from an exchange during the bench trial:

MR. MILLER: You Honor, I guess I’m not clear. Did the Court dismiss the counterclaim?
THE COURT: I dismissed the counterclaims without prejudice except to the extent that they go directly to a defense to the replevin. And in the most liberal sense of the situation, I suppose, Mr. Robison, this perhaps purports to be a defense to the replevin, so I’ll allow him to proceed somewhat further into this line of questioning. Go ahead, Mr. Miller.
MR. MILLER: Two notes, Your Honor. On the first note, as one of our defenses we argued breach of contract in our defense. So can I argue my defenses or am I excluded also from arguing my defense?
THE COURT: No. Mr. Miller, I just ruled for you.
MR. MILLER: I’m sorry?
THE COURT: I just ruled in your favor.
MR. MILLER: I just want to make the Court—make sure, the Court won’t limit me—
THE COURT: I mean, I can’t-I can’t overrule his objection any more than I just did and say it goes—in fact, your, client understood it because she was shaking her head .yes.

¶ 14. Mr. Miller proceeded to cross-examine Stewart, and the circuit court heard testimony regarding the alleged contract between Stewart and the Rosses. - Stewart testified to his conversation where.he decided not to enter into an agreement with the Rosses. The following is an excerpt of Stewart’s testimony during cross-examination:

So, so when the I—I told Mr. Ross, I said, I rather you have the—-buy the motor home. I said, do you want to buy it. He says,-let my pray over it, let me talk to my wife. I said, okay. So, I guess he talked to her and he prayed over it. He didn’t call me back. So, I called him I believe it was on a Friday. I said, what have you decided. He said, we, I wouldn’t mind having the motor home, he said, I want that motor home in that spot cause my mother and daddy have it, but I don’t have the money to finance it. And so I said, well, maybe we could make soine kind of arrangement. He said, how much you want it for again? And I said—I told him, I said, if you give me some cash right now, I’ll sell it to you for $50,000. He said, we can’t do it. He said, you would finance for it for, I think about three to five years. I said, well, I can.—I can look at that, you know what I mean. So I said—he said, how much I got to pay if—if you finance it. I said $600 a month. And then he said, yes, he said, I can handle that. He said, but the crossroads. He said, I’m going to charge you $300 a month just for the mobile home sitting on the property while I’m renting it. I said, oh, no, I don’t need to talk to you.

Further, Stewart testified to the following:

Q: Mr. Stewart, isn’t it correct you actually called the Rosses and explained to them that you were offering the mobile home for $600 a month at $42,000? Is that correct?
A: No, sir.

¶ 15. The following is an excerpt of Max-cine’s testimony:

Q: And when did you have an opportunity to discuss ... the purchase of the mobile home with Shellie Stewart?
A: Mr. Stewart called us around August 8. And we spoke—he called our home phone. We have trouble out in that area with the home phone, so it will either cut off or you don’t get to speak to the person. So we’ve asked that he called the cell phone.
A: The very first time was around April—I’m sorry—August 8. And then August 13 he called again and submitted the deal that he offered us to - purchase the home in the amount of the $42,000. And at the time he said, well, talk it over with your wife and see what she thinks about it and how she agrees with it and get back to me. And we did.
Q: And did you tell' him that you would agree? Did you communicate the agreement to Stewart or did Mr, Ross?
A: Mr. Ross, my husband, conveyed the information back to Mr. Stewart. He told us to get a few days— ■ take a few days after August 13 to see about getting financed. Which we did, and no one is doing any financing on mobile homes. So—especially when there are private owners.
A: We, waited approximately two weeks. And by the—around or approximately around August 31, Mr, Stewart called our home phone once again and he spoke to my husband. And he told him at that time he could not let us have the deal because his adviser had advised him that he would be losing too much money. And so' at' that particular time he reneged on the deal.

¶ 16, The circuit court found the testimony given by Stewart and the Rosses proved that there was no, meeting of the minds, no binding agreement, no contract.

¶ 17. Further, the same evidence the Rosses relied on in support of the defense of breach, of contract would have been the same evidence to support the counterclaim. Accordingly, before there can be a breach, there must be a contract. The counterclaim was based on the Rosses’ assertion that there was a contract—a claim which the circuit court found meritless. The court heard the discrepancy of evidence from both sides regarding breach of contract and any other claim alleged by the Rosses.

¶ 18. The only way to determine possession would be to consider whether the Rosses may be entitled to possession, because Stewart breached his contract to sell his mobile home. The circuit court agreed with this assertion. It is clear from the record that the circuit court considered whether Stewart and the Rosses contracted and whether there was a breach that followed. In other words, if the court believed that there was a contract and a subsequent breach of contract, it would not have granted the replevin. Absent a jury, the circuit court judge was the trier of fact, and concluded that no contract existed between the parties. The supreme court has held that “conflicting testimony is to be resolved by the trier of fact, the judge in a bench trial.” Tabitha Prayer v. Greenwood Leflore Hosp., 183 So.3d 877, 883 (¶ 19) (Miss. 2016) (citation omitted).

¶ 19. This Court must also note that “it is, of course, a basic principle of the law of contracts that a contract is not formed between the parties absent the essential elements of offer, acceptance, and consideration.” Whiting v. Univ. of S. Miss., 62 So.3d 907, 915 (¶ 14) (Miss. 2011) (citations omitted). Therefore, even if the Rosses and Stewart entered into some form of an agreement regarding sale of the mobile home, there was no consideration paid, because the Rosses never paid rent to Stewart.'

¶20. The dissents writes, “a claim for replevin asks for immediate possession of personal property.” (Citing Miss. Code Ann. §§ 11-37-101 & 11-37-141 (Rev. 2012)). The right of the possession requires the court to consider ownership of the personal property. Likewise, a replevin action can be decided only after the court determines who owns the property, whether any liens are due on the property, and whether any other person(s) have a legal right to claim as to the property. We agree. Accordingly, we find that the trial court concluded that Stewart was the legal owner of the mobile home.

¶21. Although the trial judge initially erred by declining jurisdiction over the Rosses’ counterclaim, we find that the trial judge later exercised jurisdiction over the Rosses’ counterclaim by allowing testimony regarding the existence of a contract and an alleged breach. Accordingly, in future and similar actions, we encourage trial courts to hear viable counterclaims accompanied with a replevin action to ensure judicial economy.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

GRIFFIS, P.J.,

DISSENTING:

¶23. I respectfully disagree with the majority and dissent.

¶24. On October 26, 2015, as the trial began, the circuit court dismissed the Rosses’ counterclaims without prejudice. The trial judge ruled:

All right, well, I have a ruling on the counterclaims and they are hereby dismissed without prejudice.
Clearly, the case law states as in Finance America v. Durbin at 370, 1356, [sic], damages must be sought after judgment on the issue of possession and not by way of counterclaim. Clearly, the law of replevin simply does not allow— now, the counterclaims are dismissed, except as to the extent that they are legal defenses to the issue of replevin. But as far as the claims on their own which go forward in opposition to the replevin, they are dismissed without prejudice.

¶ 25. The majority refers to Durbin, but does not acknowledge that it was decided before the Rules of Civil Procedure governed. I admit my confusion with the majority’s ruling that it was legally proper for the Rosses’ counterclaims to be dismissed but to allow the Rosses to present their defense of breach of contract. The majority does not rely upon Durbin and does not attempt to argue how the circuit court was correct to apply it here.

¶26. Instead, the majority refers to a supreme court ruling that occurred before the Mississippi Rules of Civil Procedure were adopted. See Gen. Motors Acceptance Corp. v. Fairley, 359 So.2d 1386 (Miss. 1978). The majority cites the following from the opinion, “[ajfter a careful consideration of the office of replevin, we have reached the conclusion that the Laws of 1975, ch. 508, do not permit a defendant to file a counterclaim or recoupment except for the specific statutory damages.” Maj. Op. at (¶ 7) (citing Fairley, 359 So.2d at 1388). It should be noted that, in Fairley, the next two sentences read:

A replevin action is a possessory action for specific property and not a suit for monetary damages. No provision is made under the above law for a judgment of money, except for the wrongful taking, detention, value of the specific property, or damages for wrongful suing out of the writ.

Fairley, 359 So.2d at 1388. This is' no longer true. Under the Mississippi Rules of Civil Procedure, a defendant may assert either a compulsory or a permissive counterclaim. It certainly appears to me that the Rosses’ counterclaims would be compulsory, because they “arise[] out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” M.R.C.P. 13(a).

¶ 27. Neither Durbin nor Fairley is governing authority here. Both of these cases were decided before the Mississippi Rules of Civil Procedure were adopted. By order dated May 26, 1981, the Mississippi Supreme Court adopted the Mississippi Rules of Civil Procedure (effective January 1, 1982). Mississippi Rule of Civil Procedure 1 provides:

These rules govern procedure in the circuit courts ... in all suits of ■ a civil nature, whether cognizable as cases at law or in equity, subject to certain limitations enumerated in Rule 81; however, even those enumerated proceedings are still subject to these rules where no statute applicable to the proceedings provides otherwise or sets forth procedures inconsistent with these rules. These rules shall be construed to secure the just, speedy, and inexpensive determination of every action.

(Emphasis added). First, Rule 81 does not exclude replevin actions from the Mississippi Rules of Civil Procedure. Second, a claim for replevin asks for immediate possession of personal property. Miss. Code Ann. §§ 11-37-101 & 11-37-141 (Rev. 2012). It requires the court to consider the ownership of the personal property. The Rosses’ counterclaims challenged whether they had any rights to the property. There is no need for a second action when, under Rule. 1, we are instructed to construe the rules “to secure the just, speedy and inexpensive determination of every action.” It only makes sense that all such claims should be brought in one action under the Mississippi Rules of Civil Procedure.

¶ 28. The majority cites Caterpillar Financial Services Corp. v. Burroughs Diesel, Inc., 125 So.3d 659, 659 (¶ 1) (Miss. Ct. App. 2013). In that case, there were two lawsuits between the same two creditors for possession'and the right to sell a Caterpillar excavator. This Court acknowledged that:

To this point, the procedural nature of these cases seems to be contrary to the purpose of the replevin statute and the Mississippi Rules of Civil Procedure. The claims have been litigated separately, before three different courts. The replevin claim is on appeal from a final judgment, and the mechanic’s lien claim is an appeal of a summary judgment. These cases have been consolidated before this Court.

Id. at 665 (¶43) (footnotes omitted): We recognized that two parties claimed the right to possess the personal- property. Cat Financial’s claim was through a replevin action; and Burroughs’s claim was through a mechanic’s lien. This Court found reversible error in the different decisions. Interestingly, three years ago, this Court instructed that “[i]n future similar actions, it would be'preferable for such a dispute as this one to be determined in one court proceeding.” Id. at 674 (¶ 90). The majority • acknowledges and agrees with this language, but says the facts here are “unique.” They are not.

¶29. The majority also cites Hall v. Corbin, 478 So.2d 253, 254 (Miss. 1985). There, the supreme court framed the issue before the court as:

This case presents issues, involving the scope of jurisdiction and available remedies in circuit court ancillary to a replev-in action now that we are under the Mississippi Rules of Civil Procedure. In the end we hold that in such an action, a claim by. another party asserting a non-possessory interest in the property may be asserted within the ancillary jurisdiction of the circuit court, so long as there is a common nucleus of operative fact between such claim and the .original complaint in replevin. Such party may intervene in the circuit court replevin action, even though his claim is of equitable origins.

The court then ruled:

We (and every other court in the land) have long held that once a court acquired actual subject matter jurisdiction of an action, other claims (whether asserted by the one or more of the original parties or by new or intervening parties), ancillary or pendent to the original claim could also be litigated in that action even though the ancillary or pendent claim standing alone may have been beyond the court’s jurisdiction. To fall within pendent or ancillary jurisdiction, the intruding claim must arise out of the same transaction or occurrence as the principal claim or, as others put it, out of a common nucleus of operative fact. The principal context in which we have recognized these notions is that where “legal claims” have been asserted in chancery court, pendent to the principal equity claim. There is no reason or principle why the converse should not also be true: where a circuit court has jurisdiction of an action at law, it may hear and adjudicate in that action all claims, including those with an equitable smell, arising out of the same transaction and occurrence as the principal claim. Indeed, the converse would áp-pear even more appropriate in that our circuit courts are courts of general jurisdiction, Miss. Const, art. 6 § 156 (1890), while our chancery courts are regarded as courts of special or limited jurisdiction.

(Internal citations omitted) (emphasis added). Thus, in Hall, the court allowed a third party to intervene and join claims under Mississippi Rule's of Civil’ Procedure 18 and 24. The court reasoned:

In this view we hold that the claim of intervenor ... as originally filed and as revived was within the jurisdiction of the .circuit court ancillary to the original action in replevin. This holding does not depend upon any enlargement of jurisdiction effected by the MRCP, for those rules neither pretend to nor have power to enlarge jurisdiction. Rule 82(a), MRCP. These rules at most sweep away procedural barriers to the assertion of claims otherwise within the court’s jurisdiction.

Hall, 478 So.2d at 255-56 (emphasis added). The court concluded:

Once intervention is permitted under the rules, it follows that intervenors may join as many claims as they have against the opposing party. Rule 18, MRCP. By virtue of the familiar concepts of ancillary or pendent jurisdiction, it does not matter that some of the claims sound in equity. We have recognized on many, occasions that under the rule, circuit courts may be called upon to grant equitable relief where such claims are ancillary to the civil actions in law in order “to secure the just, speedy and inexpensive determination of every action.” Rule 1, MRCP.

Hall, 478 So.2d at 257 (internal citation omitted) (emphasis added).

¶30. This case was commenced under the Mississippi Rules of Civil Procedure. All necessary parties were before the court. The possession of the mobile home was at issue through a claim 'for replevin. The Rosses sought to adjudicate their counterclaims for breach of contract, among other claims. The supreme court determined in Hall that a third party could intervene and join a claim in a re-plevin action; thus, I see no legal authority for the circuit court or the majority to decline jurisdiction over both the replevin claim and all counterclaims asserted.

¶ 31. The majority cites no legal authority for its decision to affirm the trial judge’s decision to decline jurisdiction. The majority affirms the trial court because ⅜ apparently believes that the judge actually considered the Rosses’ counterclaim for breach of contract and decided that' there was not a contract. At the end of the trial, the judge said:

Frankly, this is not a difficult case, ladies and gentlemen. I mean ... he’s got a title. He testified that he paid for it. There may have been some talk about a contract. And, again, maybe there is a contract and maybe you have an action for breach of contract .... I’m not saying that you do or you don’t. It’s just a separate action that has to be maintained.

The trial judge’s own words clearly refute the notion that the Rosses’ counterclaims were actually considered by the trial judge and the dismissal was nothing but harmless error.

¶ 32. I find it was reversible error as a matter of law for the circuit court to decline jurisdiction over the counterclaims. I would reverse and remand this case for further proceedings. I therefore respectfully dissent.

BARNES, ISHEE, FAIR AND WILSON, JJ., JOIN THIS OPINION.

      . In the record, Stewart refers to Genevieve as the Rosses' “aunt.”

      . Stewart and Earl Ross are first cousins.

      . Chess was a rebuttal witness. He testified that Earl stated he was not paying any money to Stewart for the mobile home. Stewart stays with Chess when he is in town. Chess also grew up with both Earl and Stewart, and lived close to the Rosses during the trial.

      . Mississippi Rule of Civil Procedure 13 provides:
      (a) Compulsory Counter-claims. A pleading shall state as a counter-claim any claim which at the time of serving the pleading the pleader has against any opposing party if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. ...
      (b) Permissive Counter-Claims. A pleading may state as a counter-claim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.

      . We considered the same language from Hall in our discussion of ancillary and pendent jurisdiction in Caterpillar, 125 So.3d at 674 (¶¶ 88-89),

      . The majority does not discuss the Rosses’ right to a jury trial on their breach-of-contract claim and does not discuss the fact that the trial court did not consider or allow evidence • on .the .Rosses’ other claims for breach of fiduciary duties, breach of the implied covenant of good faith and fair dealing, fraudulent misrepresentation, negligent misrepresentation, unconscionability, emotional distress, or conspiracy.


author: BARNES, J.,

text:
    Rodney CARTER a/k/a Rodney D. Carter, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00458-COA
    Court of Appeals of Mississippi.
    09/05/2017

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: BENJAMIN ALLEN SUBER
    ATTORNEY FOR APPELLEE: OFFICE OF THE-ATTORNEY GENERAL, BY: JASON L. DAVIS
    BEFORE LEE, C.J., BARNES AND CARLTON, JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1. At approximately 11 p.m. on January 10, 2015, Madison County Sheriffs Deputy Sam Howard observed a car that did not have a light illuminating its license plate. The car ‘ and the deputy’s vehicle were both traveling west on Highway 463 in Madison but were in different lanes when they came to a stop at’a red light. Once the light turned green, Deputy Howard accelerated slowly in order to* get a better look at the car’s license plate, but the driver, Rodney Carter, slowed the car to a near stop, obstructing traffic behind him. Because of this suspicious behavior, Deputy Howard followed Carter as he entered the exit ramp for Interstate 55 southbound and activated his blue lights and siren. Carter initially applied his brakes, as if to stop, but then he accelerated, speeding away from the deputy’s car. Deputy Howard notified his dispatcher that he was engaged in pursuit. During the pursuit, Carter maintained speeds between 88-124 miles per hour (mph), well over the posted speed limit. He was weaving in and out of traffic and occasionally driving on the shoulder of the road. When Carter reached the intersection of Interstate 220 and Highway 49, he continued speeding north on Highway 49. After a few miles, Trooper Wade Zimmerman of the Mississippi Highway Patrol put out spike strips to stop Carter’s vehicle, and the car came to a slow stop. Before Carter stopped, Deputy Howard observed an object being thrown from the passenger side of the car, causing a spark.

¶ 2. Carter was agitated, telling law enforcement he had, just picked up his wife from work and was on his way to the hospital because he was having a severe asthma attack. Deputy Howard later testified that Carter informed him he was having trouble breathing; so Deputy Howard advised Carter to sit up and quit yelling so he could “relax and breathe easier,” but Carter “insisted on trying to slump over ... and continued yelling that [he] could not breathe.” Carter was examined at the scene by emergency medical personnel, and then was arrested and taken into custody. A gun was recovered near the scene the following day.

¶ 3. Carter was indicted for felony evasion and possession of a firearm by a felon. A trial was held on October 28, 2015. Upset with his appointed counsel’s legal advice, Carter insisted on self-representation, but the judge ordered appointed counsel to remain and assist Carter if needed. Carter was convicted of Count One, felony evasion; he was acquitted of Count Two, possession of a firearm by a felon. He was sentenced to five years in the custody of the Mississippi Department of Corrections (MDOC).

¶ 4. Carter filed a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict, claiming the verdict was ■ against the overwhelming weight of the evidence. The trial court denied the motion, and he now .appeals. An appellant’s brief was filed on Carter’s behalf by the Office of the State Public Defender, but Carter has also filed a supplemental pro se brief, raising additional issues, as well as a pro se reply brief. Finding no error, we affirm the judgment.

DISCUSSION

I. Whether the verdict was against the overwhelming weight of the evidence.

¶ 5. Carter argues the trial court erred in denying his motion for a new trial, claiming that the evidence did not show that he was operating a vehicle in a reckless manner with indifference to human life. Carter insists that he was merely trying to get to the nearest hospital, due to a medical emergency, and he thought the deputy was escorting him. He also argues the State failed to produce any evidence that he was not in need of medical attention when he was arrested.

¶6. In reviewing a trial court’s denial of a motion for a new trial, we “will only disturb a verdict when' it is so contrary to the overwhelming weight of-the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss. 2005). Evidence is weighed-in the light most favorable to the verdict. Id. Carter was charged with felony evasion. Mississippi Code Annotated section 97-9-72(1)—(2) (Rev. 2015) provides:

The driver of a motor vehicle who is given a visible or audible signal by a law enforcement officer by hand, voice, emergency light or siren directing the driver to bring his motor vehicle to a stop when such signal is given by a law enforcement officer acting in the lawful performance of duty who has a reasonable suspicion to believe that the driver in question has committed a crime, and who willfully fails to obey such direction shall be guilty of a misdemeanor[.]
Any person who is guilty of‘ violating subsection (1) of this section by operating a motor vehicle in such a manner as to indicate a reckless or willful disregard for the safety of persons or property, or who so operates a motor vehicle in a manner manifesting extreme indifference to the value of human life, shall be guilty of a felonyL]

Deputy Howard testified that when he activated hjs lights and siren, Carter sped off and began “driving at reckless speeds moving in and out of traffic, at times passing motorists on the shoulder of the roadway.” The evidence showed that Carter traveled approximately twénty-two miles in thirteen minutes. Deputy Howard said when Carter reached Highway 49, he was “still driving recklessly, still passing vehicles, showing no regard for their safety.” A dash-cam video was shown to the jury that supported the deputy’s testimony. In the video, the jury could see Carter speeding down the freeway at high speeds, weaving in and out of traffic.

¶7. Carter acknowledged that he saw the deputy turn on his lights; he just contends that he “never anticipated on him chasing me at all ... because I did not do anything wrong.” He claims he was speeding because he was having a medical emergency (asthma attack), but he was stopped at a traffic light when the deputy first observed him and only began driving in a reckless manner after Deputy Howard began following him. When Carter cross-examined Deputy Howard, the officer replied:

Well, Mr. Carter, I was behind you several minutes prior to that. You stopped at a red light, and you saw a marked patrol car next to you. You gave me no sign, indication, acknowledgment that I was there, knowing that I could have-rendered you aid or had AMR or fire service dispatched to you much quicker than your decision to go in the other direction of five or six hospitals.
[H]ad you stopped when I first activated my lights and siren and you notified me that you needed to receive medical attention, we would have stopped right there.

Carter’s wife testified that he was having an asthma attack and disclaimed they were running from the police, but she also said that she did not know why he did not stop for law enforcement and did not know where Carter was going. Lastly, we note that medical personnel examined Carter at the scene of the arrest, and he did not require additional treatment at a hospital.

¶ 8. “When this Court analyzes a jury’s verdict to determine whether it goes against the overwhelming weight of the evidence, we must keep in mind that the jury is the ultimate finder of fact.” Langston v. State, 791 So.2d 273, 280 (¶ 14) (Miss. Ct. App. 2001). Thus, it is the “sole province of the jury” to evaluate the credibility of each witness. Blackwell v. State, 744 So.2d 359, 364 (¶ 18) (Miss. Ct. App. 1999) (citing Johnson v. State, 642 So.2d 924, 928 (Miss. 1994)). “In determining a witness’s credibility, jurors are allowed latitude in deriving facts from each witness’s assertions, and jurors must determine the value of the conflicting testimony introduced during the trial.” Flowers v. State, 144 So.3d 188, 196 (¶ 26) (Miss. Ct. App. 2014). Accepting as true the evidence which supports the verdict, we cannot find that the trial judge abused his discretion in denying Carter’s motion for a new trial.

II. Whether the trial court erred in denying Carter’s defense instruction on “necessity and duress.”

¶ 9. Carter asserts that the trial court should have granted him an instruction on “necessity and duress.” Jury instruction D-9, which was drafted and handwritten by Carter, stated: “I[,] Rodney Carter[,] Request Jury on Necessity defense D[ue] to Duress—Medical Emergency.” The judge found that it was a peremptory instruction and refused it.

¶ 10. “A defendant is entitled to have the trial court give jury instructions that present his theory of the case; however, the court may deny an instruction that misstates the law, is covered elsewhere in the instructions, or is not supported by the evidence.” Graham v. State, 967 So.2d 670, 674 (¶ 15) (Miss. Ct. App. 2007) (citing Ladnier v. State, 878 So.2d 926, 931 (¶ 20) (Miss. 2004)). The Mississippi Supreme Court has held:

The defense of necessity is “available where the defendant reasonably acts out of fear of ‘imminent danger of death or serious bodily harm’ to others.” Stodghill v. State, 892 So.2d 236, 238 [ (]¶ 8) (Miss. 2005). The three components to the defense of necessity are[:] (1) the act charged was done to prevent a significant evil, (2) there was no adequate alternative, and (3) the harm caused was not disproportionate to the harm avoided. Id.

Davis v. State, 18 So.3d 842, 849 (¶ 19) (Miss. 2009).

¶ 11. In Stodghill, 892 So.2d at 238-40 (¶¶ 7, 12), we affirmed a trial court’s determination that the defendant could not use the affirmative defense of necessity after he drove under the influence of alcohol to take a sick friend to the hospital, as there were “reasonable alternatives” available to him. We similarly conclude that Jury Instruction D-9 was not supported by the evidence in this case. Carter was not under an unlawful threat, and he had “reasonable alternatives” to driving himself, at speeds exceeding 100 mph, to the hospital. His wife was in the car; she could have driven him. Further, as noted by Deputy Howard in his testimony, Carter could have alerted Deputy Howard, who was sitting at the light next to Carter, to contact an ambulance. Moreover, we find the potential harm of Carter’s reckless driving at excessive speeds over a span of twenty-two miles was disproportionate to the harm avoided—his asthma episode.

¶ 12. Accordingly, we find the trial court’s refusal of Carter’s jury instruction on the defense of necessity was not in error.

III. Whether the State produced false evidence in violation of Mississippi Rule of Evidence 609.

¶ 13. At trial, Carter refused to stipulate that he had a prior felony conviction;. so the State moved to introduce into evidence a certified judgment of conviction showing Carter was convicted of armed robbery under Mississippi Code Annotated section 97-3-79 (Rev. 2006) on October 22, 2007. Carter did not object to the admission of this evidence. However, later at trial, he submitted a MDOC discharge certificate to rebut the evidence that he was convicted of armed robbery. The court ruled the MDOC certificate inadmissible, as it was not a self-authenticating document.

¶ 14. Carter contends that the trial court erred in allowing the State to introduce the evidence of his prior conviction, arguing the evidence was “false” and prejudiced the jury. This argument is waived as Carter did not object to the admission of the judgment of conviction at trial. “[A] defendant’s failure to contemporaneously object to the admission of evidence at trial, as required by Mississippi Rule of Evidence 103, effectively waives the issue on appeal.” Butler v. State, 16 So.3d 751, 755 (¶ 19) (Miss. Ct. App. 2009). Regardless, as Carter has provided no evidence that the certified judgment of conviction submitted by the State was “false,” we find no merit to this claim.

IY. Whether law enforcement had probable cause to arrest Carter.

¶ 15. Carter claims Deputy Howard did not have probable cause to arrest him after he was informed of Carter’s emergent medical issue. He argues:

Deputy Sam. Howard may not ignore conclusively established evidence of existence[ ] of an affirmative defense of necessity[;] if an officer has knowledge of facts and circumstances which establish an affirmative defense[,] he or she lacks probable cause to make a traditional arrest even when the facts and circumstances establish that the person meets all elements of the offense.

Essentially, Carter is reiterating his claim regarding the affirmative defense of necessity,, which we have already found to be inapplicable to the instant case.,

¶ 16. Furthermore, “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Goff v. State, 14 So.3d 625, 641 (¶ 48) (Miss. 2009) (quoting Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). “To effect an arrest for a felony, either with or without a warrant, a police officer must have (1) reasonable cause to believe a felony has been committed; and, (2) reasonable cause to believe that the person proposed to be arrested is the one who committed it.” Henry v. State, 486 So.2d 1209, 1212 (Miss. 1986). Deputy Howard testified that he witnessed Carter commit two traffic violations—(1) his license plate was not illuminated; and (2) he was obstructing traffic. Additionally, Deputy Howard saw Carter fail to stop when he activated his lights, exceed the posted speed limit during pursuit, and drive on the shoulder of the road. Therefore, we find Carter’s claim that Deputy Howard lacked probable cause to arrest him to be without merit.

V. Whether Carter was denied effective assistance of counsel.

¶ 17. When discussing Carter’s wish for self-representation at trial, his attorney informed the trial court that he had counseled Carter that the' defenses of necessity and duress were not “legitimate defenses” in this instance. When Carter later asked for his instruction on “necessary under duress,” as he termed it, the attorney’s comment to the trial court was; “Your Honor, I’m not familiar with that type of instruction, so I wasn’t sure how to construct something like that.” On appeal, Carter argues that trial counsel’s failure to help him craft a jury instruction on “necessity under duress” constituted ineffective assistance of counsel.

¶ 18. Since we are limited to the trial court’s record, it is unusual for an appellate court to address a claim of ineffective assistance of counsel on direct appeal, finding it more appropriate for a motion for post-conviction relief. Sims v. State, 213 So.3d 90, 97 (¶ 24) (Miss. Ct. App. 2016). However, in this case, as we have found no basis for an instruction on the defense of necessity, we can likewise find no merit to Carter’s claim of ineffective assistance of counsel regarding the failure to submit such an instruction.

CONCLUSION

¶ 19. Finding the trial court’s denial of Carter’s motion for a new trial was not an abuse of discretion, and his remaining claims are meritless, we affirm Carter’s conviction for felony evasion and sentence of five years in the custody of the MDOC.

¶ 20. AFFIRMED.

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

      , He had a prior armed robbery conviction in 2007 for which he served two years.

      . Carter’s appeal was dismissed for failure to pay costs, but it was reinstated by the trial judge due to trial counsel’s unfamiliarity with the process of substituting the Office of the State Public'Defender, Indigent Appeals' Division, to represent Carter on appeal.

      . See M.R.A.P. 28(b).

      . We further note that Carter was acquitted of the charge for possession of a firearm by a felon; so this claim is not relevant to the current appeal, which only involves his felony evasion conviction.


author: ISHEte, J,

text:
    Rodney N. ROBINSON a/k/a Rodney Robinson a/k/a Rodney Peter Robinson, Jr., Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01095-COA
    Court of Appeals of Mississippi.
    09/05/2017
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: BENJAMIN ALLEN . SUBER
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BARBARA WAKELAND BYRD
    BEFORE IRVING, P.J., ISHEE AND GREENLEE, JJ..
   ISHEte, J,

FOR THE COURT:

. ¶ 1.-Rodney-Robinson was convicted in the Webster County Circuit Court for burglary of an occupied dwelling under circumstances likely to terrorize the occupant. As a result, he was sentenced to thirty-five years in the custody of the Mississippi . Department of Corrections (MDOC). Robinson moved for a judgment notwithstanding the verdict .(JNOV) or, in the alternative, a new trial, which the circuit court ultimately denied. He now seeks relief from this Court. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. In October 2015, three men broke into Melvon Fason’s home on Waterworks Road in Eupora, Mississippi. Officers Bradley Frost, Mitch Jackson, and Taylor Hitt were dispatched to Fason’s home. Fa-son informed the officers that three black males, one wearing dark or black clothing, had broken into his home and likely stolen several guns.

¶ 3. Fason ultimately provided testimony through a pretrial deposition, as he was elderly and in poor health. Fason testified that three black males, broke into his home, entering through the kitchen door. He further stated that only one of the men spoke, originally demanding money. Fason, however, informed them that he did not have any money—as a result, the men began rummaging through Fason’s home and eventually stole two weapons, a muz-zleloader and a locked breech pistol. Fason testified that he could not identify the men, though he knew they were three black males, and that one of the men had been wearing a jacket.

¶ 4. Once the officers secured the scene, Jackson stated that he left to search for any suspects that may be on foot. Jackson approached a familiar set of apartments known as Southwood Apartments, where he noticed three males—all fitting Fason’s description—including one male dressed in all black clothing. Jackson arrested the men, but found no weapons in their possession. The three men were identified as Robinson, Dontarious Davis, and Joshua Johnson. Robinson was the only one clothed in all black. Jackson then brought the three men to Fason’s home, but Fason was unable to identify any of the men, or provide any description better than that which he had previously given. And so, Robinson, Davis, and Johnson were all released that night.

¶ 5. The following day, Johnson attempted to sell a gun at a local pawn shop. Police were alerted, and Officer Greg Hunter took Johnson in for questioning; Johnson was seventeen years old at the time. Johnson ultimately gave a statement, the details of which he reiterated through his testimony at trial. Johnson testified that on October 10, 2015, he was with Robinson, Davis, and another male, Dava-rus Smith. He stated that he and the others purchased marijuana and began “trying to find something to get into.” As they began walking around, Johnson said that he realized Robinson and Smith intended to burglarize a home on Waterworks Road—the two amended their original plan of breaking into a first house, and instead chose a home two houses down, which was Fason’s.

¶ 6. Johnson testified that he and Davis did not wish to participate in the crime, but that Robinson and Smith made them do so by holding guns to their heads. Johnson said that he was forced to stand by a fence and serve as the lookout while Robinson, Davis, and Smith went into Fa-son’s home. He further testified that after a short time (approximately two or three minutes), Robinson, Davis, and Smith came running from the home with more guns than they had when they entered. He then stated that Robinson and Smith forced him and Davis at gunpoint to flee with them. Johnson testified that the group cut through a field between Waterworks Road and Southwood Apartments, hiding the guns behind an old building in the process; Johnson said Smith fled from the group at some point before exiting the field. Robinson, Davis, and Johnson were spotted by Jackson shortly thereafter and detained. Lastly, Johnson testified that the day after the burglary, Smith came to him with a gun Johnson had never seen before, and told him to try to sell it at the local pawn shop, where he was ultimately arrested by Hunter.

¶7. Several days later, Robinson was brought in. for questioning by the Eupora Police Department. Robinson was explained his Miranda rights, read a waiver-of-rights form, signed the form, and thereby waived those rights. Officer Morton testified that he questioned Robinson and that, during the interview, Robinson provided a statement, which Morton transcribed, and Robinson signed. Morton stated that he neither threatened nor coerced Robinson into giving the statement.

¶8. Robinson’s statement was entered into evidence and read to the jury. In that statement, Robinson told officers that: he met and smoked marijuana with Davis and Johnson the night of the burglary; later that evening, Davis told him that he and Davis needed to “hit a quick lick and make some quick money”; they all went to Fa-son’s home; Johnson and Davis broke into Fason’s home; he remained outside on his phone because he refused to enter the home; Davis and Johnson were in Fason’s for about three minutes; they ran down the street with rifles; after Davis and Johnson stole the weapons, they walked to Southwood Apartments; and shortly after-wards they were detained by police. Robinson denied Smith being present and stated that he never entered Fason’s home that evening.

¶ 9. Upon conclusion of trial, Robinson was convicted of burglary of an occupied dwelling under circumstances likely to terrorize the occupant. And because Fason was over the age of sixty-five, Robinson’s sentence was enhanced pursuant to statute; he was therefore ordered to serve thirty-five years in MDOC custody. Robinson moved for a JNOV or, in the alternative, a new trial, which the circuit court denied. His sole argument on- appeal is that the verdict was against the overwhelming weight of the evidence.

STANDARD OF REVIEW

¶ 10. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, [this Court] will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss. 2005). “As such, our scope of review is limited in considering challenges to the weight of the evidence.” Danner v. State, 748 So.2d 844, 846 (¶ 7) (Miss. Ct. App. 1999). “In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence presented as supportive of the verdict, and we will disturb a jury verdict only when convinced that the circuit court has abused its discretion in failing to grant a new trial or if the final result will [constitute] an unconscionable injustice.” Id.

DISCUSSION

¶ 11. Reviewing the evidence in a light most favorable to the verdict, we cannot say that the circuit court abused its discretion in denying Robinson’s motion for a new trial. Nor can we conclude that to aljow his conviction, to stand would result m an unconscionable injustice.

¶ 12. On appeal, Robinson argues that the State failed to prove beyond a reasonable doubt that Robinson committed the crime as charged, as there was no physical evidence linking him to the scene. He further asserts that Johnson, who received a lesser sentence due to his juvenile-offender status, had motivation to implicate Robinson. We, however, find these arguments unpersuasive.

¶ 13. The evidence in this case illustrates the following: Robinson admitted that he was present at the burglary; that he had personal knowledge of the crime; and that much of his testimony corroborated the details of Johnson’s testimony. Furthermore, Fason testified that three men entered his home to rob him, and’ that one of them was wearing all black clothing— when arrested, Robinson was the only one dressed in all black. Robinson also admitted that he was with only' two other men that evening, and that all three men were present at the scene of the crime. Lastly, Robinson admitted that he knew guns were stolen from Fason’s home.

¶ 14, Although Robinson ‘ and Johñsón both denied personal participation in the burglary, the jury—as trier of fact— was instructed that, if they found Johnson’s testimony to be uncorroborated by other evidence, they should regard that testimony with great care. Johnson testified that his juvenile case had concluded, and that he had since been sentenced. Therefore, he was receiving no benefit from his testimony in Robinson’s trial— which, again, was a reiteration of his statement to Eupora police officers, As’such, “[t]he jury is the final arbiter of a witness’s credibility.” Williams v. State, 794 So.2d 1019, 1028 (¶ 59) (Miss. 2001). Thus," “[t]he jury weighs the weight and worth of any conflicting testimony.” Id. Here, the jury heard the evidence, weighed the same, and ultimately found that Robinson participated in the burglary. Based upon the evidence presented, we conclude the jury was entitled to find such. See id. This issue is without merit.

CONCLUSION

¶ 15. In sum, having reviewed the evidence- in a light most favorable to the verdict, we cannot say that the circuit court abused its discretion in denying Robinson’s motion for a new trial. Danner, 748 So.2d at 846 (¶ 7), We likewise cannot find that the verdict is so contrary to the overwhelming weight of the evidence that to allow--his conviction to stand would sanction an unconscionable injustice. Bush, 895 So.2d at 844 (¶ 18). Therefore, we affirm,

¶ 16. AFFIRMED;

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

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . See Miss. Code Ann. § 99-19-351 (Rev. 2007).


author: ISHEE, J.,

text:
    Bernice FRIERSON a/k/a Bernice James Frierson a/k/a Bernice J. Frierson, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00474-COA
    Court of Appeals of Mississippi.
    09/12/2017

      ATTORNEY FOR APPELLANT: BERNICE FRIERSON (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE
    BEFORE LEE, C.J., ISHEE AND FAIR, JJ.
   ISHEE, J.,

FOR THE COURT:

¶ 1. In 2013, Bernice Frierson pleaded guilty in- Pearl River County Circuit Court to one count of possession of pseudoephed-rine with intent to distribute. Frierson was sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC). In 2016, Frierson filed a motion for postconviction relief (PCR). The circuit court denied Frierson’s PCR motion, finding that the motion was deficient, Frierson, now appeals. Finding no. error, we affirm.,

. FACTS

il 2. On July 8, 2013, Frierson pleaded guilty to one count of possession of a controlled substance with intent to distribute in violation of Mississippi Code Annotated section 41-29-139(a)(l) (Supp. 2016). He was sentenced to twenty years in the custody of the MDOC.

¶ 3. Frierson filed an amended motion for PCR in the Pearl River County Circuit Court on October 27, 2015, claiming that: (1) the circuit court erred in accepting his guilty plea because there was no factual basis presented: during his plea hearing; (2) he was not informed of the minimum and maximum sentences-he could, receive for the charge to which he pleaded guilty; (3) his indictment was insufficient because it did not specifically state where he was going to sell the drugs found in his car at the time of the arrest; and (4) his counsel was ineffective. On March 1, 2016, the circuit court dismissed Frierson’s amended motion as deficient in that the motion failed to conform to the requirements of Mississippi Code Annotated section 99-39-9 (Rev. 2015). Specifically, the circuit court found the motion to, be, deficient because it lacked a “concise statement of the claims or grounds upon which it [was] based, a sworn statement of the specific facts [that were] within [Frierson’s] knowledge, and a specific statement of facts which [were] not within his knowledge.”

¶4, Frierson appealed on March 11, 2016, asserting the following: (1) there was no factual basis presented during his guilty-plea hearing; (2) he was not informed of the minimum and maximum possible sentences for his charge; (3) his indictment was insufficient; and (4) his counsel was ineffective in failing to prevent these errors.

DISCUSSION

¶5. Section 99-39-9(l)(c)-(e) provides that a PCR motion requires—among other things—a concise statement of the claims or grounds upon which it is based, a sworn statement of the specific facts within the movant’s knowledge, and a specific statement of facts that are not within the mov-ant’s knowledge.

¶6. In its order dismissing Frierson’s motion, the circuit court made clear that it was dismissing the motion as deficient under section 99-39-9. Specifically, the circuit court found that Frierson’s motion lacked various components required by the statute. First, it lacked a concise statement of the claims or grounds upon which Frier-son’s motion was based. Second, it lacked a sworn statement of the specific facts within his knowledge. And third, it lacked a specific statement of facts that were not within his knowledge.

¶ 7. “Although this Court has often acknowledged that meritorious claims of pro se petitioners will not be avoided based on inartfully drafted pleadings, we have instructed that petitioners, even if proceeding pro se, must comply with the dictates of section 99—39—9(l)(d)—(e).” Hooghe v. State, 187 So.3d 682, 683 (¶ 5) (Miss. Ct. App. 2016) (quoting Chapman v. State, 47 So.3d 203, 207 (¶ 15) (Miss. Ct. App. 2010)).

¶ 8. The circuit court found that Frier-son’s amended PCR motion did not meet the requirements set forth in section 99-39-9. And while neither party addresses this issue on appeal, after reviewing the record, we cannot find that the circuit court erred in dismissing Frierson’s PCR motion as deficient. Therefore, the dismissal of Frierson’s PCR motion is affirmed, without prejudice, so that he may refile a motion that complies with the dictates of section 99-39-9.

¶ 9. AFFIRMED.

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

      . This was Frierson’s second attempt to file a motion for PCR for this particular charge. Frierson’s first attempt was a joint motion for two separate cases. The circuit court ordered the joint motion returned to him because Mississippi Code Annotated section 99-39-9 (Rev. 2015) requires a motion to be limited to a claim for relief against one judgment only. Frierson amended his motion.