text:
    Marsha R. HINTON and Thomas F. Hinton v. PEKIN INSURANCE COMPANY
    NO. 2018-CA-00383-SCT
    Supreme Court of Mississippi.
    February 21, 2019 Rehearing Denied May 9, 2019
    ATTORNEYS FOR APPELLANTS: LAWRENCE E. ABERNATHY, III, LESLIE D. ROUSSELL, Laurel, SAMUEL S. McHARD
    ATTORNEY FOR APPELLEE: DORRANCE AULTMAN, Gulfport
    EN BANC.
   CHAMBERLIN, JUSTICE, FOR THE COURT:

¶1. Timothy Hinton died from injuries sustained in a fall from a tree stand. Timothy's parents, Marsha and Thomas Hinton (the "Hintons"), brought a wrongful-death suit against the manufacturer of the tree stand, C & S Global Imports, Inc. ("C & S"), and against Pekin Insurance Company ("Pekin").

¶2. After filing their third amended complaint, the Hintons filed a motion for partial summary judgment against Pekin. The Hintons claimed that Pekin waived its defenses to coverage or should be estopped from asserting any coverage defenses. Among other arguments, the Hintons maintained that Pekin failed to defend C & S, did not file a declaratory-judgment action and allowed a default judgment against C & S. The Jones County Circuit Court denied the Hintons' motion.

¶3. Pekin then moved for summary judgment. It argued that the insurance policy excluded coverage for tree or deer stands and related equipment. The circuit court granted Pekin's motion and entered a final judgment dismissing Pekin from the suit.

¶4. The Hintons now appeal both of the circuit court's rulings. After review, we affirm the order denying partial summary judgment to the Hintons, the order granting summary judgment to Pekin and the final judgment dismissing Pekin from the suit.

FACTS AND PROCEDURAL HISTORY

Background

¶5. Timothy Hinton died on November 18, 2012. At the time of his fall, Timothy was wearing a fall-arrest system which included a full-body harness, tether and tree strap. Timothy had purchased the tree stand and fall-arrest system from The Sportsman's Guide, Inc. ("TSG"), in 2009. C & S had manufactured the items and marketed them to TSG. Pekin insured C & S at the time of Timothy's injury and death.

The Initial Insurance Policy

¶6. In January 2011, C & S applied for insurance with Pekin. Comprehensive Insurance Services, Inc. ("Comprehensive"), an insurance agency, delivered the commercial insurance application to Pekin. On the application, the box entitled "REMARKS/PROCESSING INSTRUCTIONS" read:

POLICY EXCLUSION: THIS POLICY SHALL NOT IN ANY WAY EXTENT [sic] COVERAGE TO DEER/TREE STANDS OR ANY RELATED EQUIPMENT.

In the box entitled "LOSS HISTORY," the application referenced an "INJURY FROM USE OF TREE STAND" in 2010.

¶7.Based on the application, Pekin issued Businessowners Policy No. 00BU51626-O to C & S for the policy period of January 31, 2011, to January 31, 2012. In the policy, the "Businessowners Form Schedule" listed the "Forms And Endorsements Attached To This Policy." Among these thirty-two entries, the contested exclusion in this appeal was listed: "481T 1078 Amendment of Policy" (the "481T"). The 481T was attached to the policy as the second endorsement. In its entirety, it provided:

00-BU51626-0 AMENDMENT OF POLICY This endorsement. [sic] effective 01/31/11 forms a part of policy No. 00BU51626-0 Issued to C & S Global Imports INC by PEKIN INSURANCE COMPANY

It is agreed that as of the effective date of this endorsement this policy is amended in the following particulars:

EXCLUSION DESIGNATED PRODUCTS
THIS ENDORSEMENT MODIFIES INSURANCE PROVIDED UNDER THE FOLLOWING:
COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART SCHEDULE DESIGNATED PRODUCT(S)
DEER/TREE STANDS & RELATED EQUIPMENT

481T (10-78)
HOME OFFICE

¶8. During the course of the litigation, the Hintons deposed Jeff Cole, the president and chief executive officer of C & S. Cole testified that C & S had stopped selling tree stands and sought an insurance policy with a lower premium that did not insure tree stands. According to Cole, C & S had been insured with First Specialty Insurance, but C & S switched to Pekin and stopped selling tree stands. Cole testified that "when I had insurance with Pekin Insurance, it was not to cover tree stands." He further testified that he "understood" that tree stands were excluded from coverage when C & S switched coverage from First Specialty Insurance to Pekin.

¶9. The Hintons also deposed Jeffery Ott, an agent at Comprehensive. Ott testified that when Cole first approached him for an insurance policy for C & S in 2010, he had to bring in another broker on a referral basis in order to insure the tree stands as a specialty item with First Specialty Insurance. According to Ott, C & S's high premium payments to cover the tree stands was a problem financially for C & S, and Cole approached Ott again to seek a policy that did not cover tree stands. Ott contacted Pekin and set up the policy for C & S. Also, Ott maintained that Cole never asked him to remove the 481T from the Pekin policy.

The Renewal Insurance Policy

¶10. Pekin renewed the businessowners policy for C & S under Policy No. 00BU51626-A for the policy period January 31, 2012, to January 31, 2013. The "BUSINESSOWNERS FORM SCHEDULE" of the renewal policy listed "481T

107 Amendment of Policy" among thirty-three entries. Aside from an updated policy number, the language of the 481T exclusion, which is the second attached endorsement to the renewal policy, is identical to the 481T exclusion in the initial policy.

The Amending Insurance Policy

¶11. Pekin issued an amending policy for the policy period of July 8, 2012, to January 1, 2013, under Policy No. 00BU51626-A. The amending policy was eleven pages long and reflected an additional premium of $ 28 on the common declarations page. On the bottom of the same page, the amending policy read:

Changes Made to Your Policy:
Forms Added

The "BUSINESSOWNERS FORM SCHEDULE" of the amending policy listed "481T 1078 Amendment of Policy" among thirty-four entries of forms and endorsements "Attached To This Policy." Only two endorsements were actually attached to the amending policy: a disclosure concerning terrorism insurance and an amendment to the policy that named an additional insured. The additional-insured amendment read, in part:

This endorsement modifies insurance provided under the following:
BUSINESSOWNERS LIABILITY COVERAGE FORM SCHEDULE Name of person or Organization (Additional Insured) SCHEELS ALL SPORTS INC SCHEELS CORPORATION OFFICE

The Filing of the Wrongful-Death Suit

¶12. The Hintons filed the wrongful-death suit on behalf of their son in late 2013. The suit was filed in Jones County Circuit Court.

Pekin's Claim Review

¶13. Several documents, emails and letters in the record pertain to Pekin's review of the Hintons' claim against C & S. They are summarized below:

Feb. 5, 2014 In a letter, TSG demanded indemnity and defense from C & S and Hunter's View, Ltd., a related company to C & S.
Feb. 10 Comprehensive submitted a Notice of Claim to Pekin.
Feb. 11 An email assigned the claim review to Tim Manning, Pekin's litigation manager.
Feb. 11 Mark Morgan, Pekin's Regional Claim Manager, emailed Manning and other Pekin employees. The first email read, "Randy, I am in the process of correcting the opener for this new claim/new suit, but wanted to make you aware of this as soon as possible as well." The second email read:
It turns out this cannot be corrected, rather it will be necessary to do a Create claim to get this opened, as the policy did not include liability coverage at the time of termination, but did at the time of loss. As such, we will leave this claim pending in the opener screens even though it shows "error". [sic] We will delete this claim once the create is in plain, so we will still have something for tracking purposes.
Feb. 11 A typed note appeared on a claim coverage document: "Policy in force on date of loss." On the document in the "ENDORSEMENTS" section, "481 1078" was listed, but the document did not specify which 481 endorsement.
Undated A typed note appeared at the bottom of the Businessowner's Underwriter Instruction Sheet: "481T not marked here."
Feb. 13 A typed note appeared on a copy of the 481T:
ON 1/23/13. AGENT SENT PEKIN A CANCELL [sic] REQUEST - STATING INSURED WAS GOING OUT OF BUSINESS. I DO NOT SEE THIS AMENDMENT OF POLICY CHANGE REQUEST IN THE UNDERWRITING FILE? ? TM 02/13/2014
Feb. 14 Attorney Dorrance Aultman, who was retained by Peking to represent C & S upon notice of the Hintons' claim, emailed Manning and told him that he had contacted the clerk's office in Laurel, Mississippi and "discovered that there is no process" filed for C & S.
Feb. 15 A typed note attached to a Common Declarations document read,
From underwriting file
There is no 481T-Amendment to policy in the ImageRight file. That endorsement excludes tree stands.
Tim Manning
02/15/2014.
Feb. 15 Manning emailed Aultman and informed him of a "[n]ew development" that the policy was written with a 481T endorsement that excluded coverage for tree stands and related equipment.
Feb. 15 Manning emailed Cole. The email stated, "This confirms our telephone conversation earlier today." Manning informed Cole of the claim and states:
"... the Pekin Policy was written with endorsement 481T (1078) ... which excludes policy coverage for deer/tree stands or any related equipment. In the absence of coverage, the policy has obligation to provide neither a defense nor indemnity to it's [sic] policyholder, C & S Global Imports, Inc. ... Upon notice of claim, Pekin under reservation of rights, pre-emptively [sic] assigned a defense attorney to act in your best interest.... Attorney Aultman has already begun working to defend C & S Global Imports, Inc. Even though we have no duty to provide for your defense and/or indemnity, in order to give you ample time to align defense for this claim, we have requested he continue the defense, and Pekin has agreed to continue to fund the defense, thru next week, or thru Friday, February 21, 2014 .... After that time, Pekin will fund no part of this claim.... In summary, there is no policy coverage for this claim, and Pekin has no duty to defend and/or indemnify it's [sic] policyholder, but agrees to continue to fund the defense for a short time, to allow you to align your own defense.
Feb. 17 Aultman emailed Cole. He stated that "Manning has advised me of the coverage situation with Pekin Insurance."
He informed Cole that he would share his file with whichever attorney C & S chose to continue the representation.
Feb. 18 Manning sent Cole a policy release, but Cole never signed or returned it.
Feb. 18 Manning mailed Cole a letter that was virtually identical to his email to Cole on February 15.

Procedural History of the Wrongful-Death Suit

¶14. The Hintons served C & S in December of 2013 and filed an application for default on April 2, 2014. The clerk entered a notice of default the next day.

¶15. On June 9, 2016, the Hintons filed their third amended complaint, which sought recovery against C & S, Hunter's View, Ltd., TSG, Pekin, John Doe corporations and individual John Does. In all, the Hintons brought fourteen counts against the defendants. The majority of the claims sought recovery under theories of negligence, breach of warranty, products liability or res ipsa loquitor . In essence, the Hintons alleged that the tree strap in the fall-arrest system was negligently manufactured or defective. Count twelve sought to have the circuit court adjudicate Pekin's liability and responsibilities to C & S and TSG under C & S's insurance policy with Pekin. Also, count thirteen sought recovery against Pekin for negligent or intentional misrepresentation, and count fourteen alleged civil conspiracy against Pekin; the circuit court dismissed counts thirteen and fourteen pursuant to a motion to dismiss by Pekin.

¶16. Pekin answered the Hintons' complaint. For the first time in the litigation, C & S answered the complaint and moved to set the entry of default aside. The circuit court denied the motion and entered a default judgment against C & S on October 20, 2016.

¶17. Following the entry of default judgment, the Hintons moved for partial summary judgment. They maintained that Pekin waived any defense to coverage or was equitably estopped from asserting any coverage defenses because Pekin (1) failed to provide a defense to C & S, (2) failed to obtain a judicial determination that it did not owe C & S a defense and (3) failed to protect C & S from a default judgment. The circuit court denied the Hintons' motion. The Hintons sought interlocutory appeal in this Court, but this Court denied their petition.

¶18. Pekin then moved in the circuit court for summary judgment on count twelve of the third amended complaint (the declaratory judgment against Pekin). Pekin maintained (1) that the contested insurance policy did not cover Timothy's injuries due to an exclusion for tree stands and related equipment and (2) that TSG was not an additional insured under the policy. The circuit court granted Pekin's motion and dismissed Pekin with prejudice in a final judgment under Mississippi Rule of Civil Procedure 54(b).

¶19. Aggrieved, the Hintons appealed both the denial of their motion for partial summary judgment and the grant of Pekin's motion. They raise several issues which we reframe on appeal. They maintain that the circuit court erred by not applying the doctrines of equitable estoppel, waiver and judicial estoppel. They also argue that the circuit court erred in its determination that no genuine issue of material fact existed as to (1) whether the policy included the tree-stand exclusion and (2) whether TSG was an additional insured under the policy.

¶20. We address the circuit court's grant of summary judgment to Pekin first. Our analysis of the insurance policy's language shapes our subsequent review of the circuit court's denial of the Hintons' motion for partial summary judgment. The parties briefed the contested issues under Illinois and Mississippi law. We find no conflict of laws between the laws of either forum and will apply Mississippi law to both issues.

STANDARD OF REVIEW

¶21. Our standard of review for a motion for summary judgment is well established:

We review a trial court's grant of summary judgment de novo. Mitchell v. Ridgewood E. Apartments, LLC , 205 So.3d 1069, 1073 (Miss. 2016) (citing Borries v. Grand Casino, Inc. [,] 187 So.3d 1042, 1045 (Miss. 2016) ). Under Rule 56 of the Mississippi Rules of Civil Procedure, "[t]he judgment sought shall be rendered forthwith 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." Miss. R. Civ. P. 56(c). The burden of demonstrating that no genuine issue of fact exists is on the moving party and "the non-moving party should be given the benefit of every reasonable doubt." Borries , 187 So.3d at 1046. "The evidence is to be viewed in the light most favorable to the nonmoving party." Mitchell , 205 So.3d at 1073 (citing Stribling Inv., LLC v. Mike Rozier Constr. Co., Inc. , 189 So.3d 1216, 1219 (Miss. 2016) ).

Daniels v. Crocker , 235 So.3d 1, 6 (Miss. 2017). The nonmovant, though, "may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." M.R.C.P. 56(e).

ANALYSIS

I. Pekin's Motion for Summary Judgment

¶22. In a thirty-one-page order, the circuit court granted Pekin's motion for summary judgment and dismissed Pekin from the suit with prejudice. Pekin had argued that the policy language did not provide coverage for Timothy's injuries and that TSG was not an additional insured under the policy. The Hintons responded that genuine issues of fact existed as to whether the 481T exclusion was created after Timothy's injury or whether the 481T was not included in the policy after the issuance of the amending policy in 2012. They also claimed the existence of genuine issues of material fact about TSG's status as an additional insured under the policy.

A. The 481T Exclusion

¶23. Pekin alleges that the policy did not provide coverage pursuant to the 481T, which excluded coverage of tree stands and related equipment under the policy. It bears the initial burden under Rule 56(c) to demonstrate that no genuine issue of material fact exists. M.R.C.P. 56(c).

¶24. The Court proceeds under a de novo standard of review for any interpretation of an insurance policy. Minn. Life Ins. Co. v. Columbia Cas. Co. , 164 So.3d 954, 967 (Miss. 2014). This is because "[t]he interpretation of an insurance policy is a question of law, not one of fact." Id.

¶25. Pekin met its burden to demonstrate that no genuine issue of material fact existed as to whether the 481T excluded coverage for tree stands and related equipment. The initial policy and renewal policy both list the 481T. The exclusion is also attached to both policies. In addition, the amending policy references the 481T exclusion. Further, Cole testified that C & S sought a cheaper policy that did not provide coverage for tree stands. Ott also testified that Cole, on behalf of C & S, requested a policy with no coverage for tree stands and related equipment.

¶26. On appeal, no party contests that the 481T exclusion is unambiguous. It lists that the endorsement is effective upon the date referenced and includes the appropriate policy number. It mentions the parts of the policy that are amended and excludes tree or deer stands and related products from policy coverage.

¶27. The Hintons argue that Morgan's email-alone-is enough evidence to demonstrate a genuine issue of material fact. Morgan had emailed Manning about a technical issue within Pekin's claims-processing system in opening the Hintons' claim under the policy. In that email, Morgan stated, "it will be necessary to do a Create claim to get this opened, as the policy did not include liability coverage at the time of termination, but did at the time of loss." While there may be a genuine issue as to the interpretation of Morgan's opinion on policy coverage, Morgan's opinion is not a material issue in this case because "[t]he interpretation of an insurance policy is a question of law" in Mississippi. Minn. Life Ins. Co. , 164 So.3d at 967. In other words, Morgan's opinion on coverage is not relevant to the resolution of the issue and, therefore, does not create a fact issue for the jury.

¶28. No party contests the meaning of the 481T, and Pekin showed that the policy included the exclusion from its first issuance. Thus, for the purposes of the initial Rule 56 burden, Pekin demonstrated that no genuine issue of material fact exists as to whether the 481T exclusion exempted tree stands and related equipment from coverage.

¶29. As such the burden shifts to the Hintons to demonstrate that a triable issue remains for the jury. The Hintons maintain that

This case involves an insurance company that appears to have created an exclusion after the accident at issue or deleted an exclusion from its policy when it added an additional insured. It has always been the position of the Hintons that the 481T exclusion was not a part of the Pekin policy at the time of Tim Hinton's fall. The Hintons do not know whether the exclusion was created after the fall or whether the exclusion was not included in the policy when it was amended in July of 2012.

These two propositions sum up the Hintons' contention that an issue of fact for the jury to resolve remains: (1) whether the exclusion was not included in the amending policy or (2) whether the exclusion was created and inserted after Hinton's injury.

1. Whether the 481T exclusion was not included in the policy when it was amended in July 2012.

¶30. The Hintons failed to demonstrate a fact issue for the jury on this point. The amending policy amended the renewal policy. It was not an "amended policy" in and of itself. It was an "amending policy." This is evident from the fact that the amending policy had the same policy number as the renewal policy-Policy No. 00BU51626-A. The policy also stated that forms were added to the policy; it did not state that any forms were not included or that any forms were removed from the policy. In addition, the amending policy was only eleven pages long-significantly shorter than the initial policy at 106 pages and the renewal policy at 107 pages.

¶31. Further, no evidence appears in the record that the 481T was not included in amending policy. The amending policy listed the 481T as attached to the policy in the businessowners form schedule. While the 481T was not actually attached to the amending policy, neither were thirty-one of the other forms and endorsements from the renewal policy. These thirty-one other forms, though, were still part of the insurance policy after the amending policy was issued. The only forms actually attached to the amending policy were an additional insured and a notice of the rejection of terrorism insurance. If these two forms were the only valid forms under the amending policy simply because they were actually attached to the amending policy, then the amending policy would not have offered any coverage at all. For there to be any coverage under the amending policy, the amending policy simply amended the renewal policy and did not stand on its own as a separate policy.

¶32. Besides the evidence that the amending policy amended the renewal policy and still included the 481T exclusion, the initial insurance application indicated that the policy would not cover deer or tree stands and related equipment. Further, Cole testified that he wanted a policy that did not insure tree stands, because the policy would be cheaper. He also testified that he never instructed Ott to remove the exclusion from the policy. Ott supported this testimony. He claimed that Cole approached him about switching to an insurance policy that did not cover tree stands. He testified that he secured the Pekin policy for that purpose and never instructed anyone to take the exclusion out of the policy.

¶33. The Hintons point to several pieces of evidence in the record as proof of a genuine issue that the 481T exclusion was not included in the amending policy. They maintain that Morgan's email is some evidence that the exclusion was not in the amending policy. Viewing Morgan's email in the light most favorable to the Hintons, the email expresses Morgan's opinion that there was "liability coverage ... at the time of loss." It does not address the relevant issue of whether the exclusion was not included in the policy as a result of its not being attached to the amending policy or its being somehow removed from the policy. See Minn. Life Ins. Co. , 164 So.3d at 967 ("The interpretation of an insurance policy is a question of law, not one of fact.").

¶34. The Hintons also argue that several documents create a fact issue for the jury. Manning wrote that he did not see the 481T in the underwriting file and that there was no 481T in the ImageRight file. Neither of these statements support the Hintons' claim that the 481T was not included in the policy after the 2012 amendment. There is no genuine issue of material fact for the jury to resolve simply because Manning did not see the 481T in the underwriting file. The underwriting file does not control the language of the actual policy. Pekin demonstrated that the 481T was part of the policy from its inception. See Noxubee Cty. Sch. Dist. v. United Nat. Ins. Co. , 883 So.2d 1159, 1166 (Miss. 2004) ("Insurance policies are contracts, and as such, they are to be enforced according to their provisions."). Further, Manning's not seeing the 481T in the underwriting file or the 481T's absence from the ImageRight file does not support the argument that the 481T was not included in the policy itself.

¶35. The same goes for the underwriting documents that either did not have the 481T listed or did not have the 481T marked. Looking at this evidence in the light most favorable to the Hintons does not change the fact that no evidence supports the claim that the 481T was not included in the policy after the amendment.

¶36. The Hintons did not provide any evidence of a genuine issue of material fact as to whether the 481T was left out of the policy or removed from the policy after the 2012 amendment. The fact that the 481T was not marked in certain portions of the underwriting file and that a claims adjuster did not see the 481T during his review of the file is not sufficient evidence to defeat the award of summary judgment in Pekin's favor. While the evidence alone is insufficient to create a fact issue for the jury, its insufficiency is more blatant in the context of this record. Here, the initial application for insurance stated that the policy would not cover tree stands; the 481T was consistently listed and attached to the policies; Cole testified that he did not want coverage for tree stands; and Ott testified to the same effect. The Hintons have not met their burden to defeat summary judgment on this issue.

2. Whether the 481T exclusion was created and inserted into the policy after Timothy's fall.

¶37. The Hintons have not demonstrated an issue of fact for the jury on this issue either. In this more than fifteen-hundred-page record, no evidence appears that the 481T exclusion was created and inserted into the policy after Timothy's fall.

¶38. The Hintons argue that Manning was an experienced claims adjuster and would not have missed the 481T during his review of the file had it been in the file. From this argument, the Hintons want us to conclude that the 481T must have either been removed from the policy or created after Timothy's fall and inserted into the policy. This argument is simply unsupported.

¶39. To show that the 481T was created after Timothy's fall, the Hintons point to a coverage document in a separate but similar claim to their claim. The coverage document generated by Pekin for the separate claim is a document similar to the claim-coverage document generated on February 11, 2014, for the Hintons' claim. On the coverage document in the separate claim, "481 1078" is listed but is struck through with a red line. Above the "ENDORSEMENTS" section, in blue type, ten endorsements are listed, including two 481 endorsements-a "481N 1078" and a "481T 1078." The Hintons maintain that because this claim document had "481 1078" marked through and "481T 1078" listed above the endorsements section, a genuine issue of material fact existed as to whether Pekin had created the 481T endorsement-in the Hintons' claim-and had inserted it into C & S's policy after Timothy's fall. This is an unsupported leap in logic. The only evidence presented about this separate claim is the coverage document itself. The Hintons offer no evidence of fraud or deception by Pekin. In fact, no explanation appears at all for the marked-through portion of the document, and the Hintons offer no evidentiary support that Pekin did anything wrong in this separate claim. Further, the claim-coverage document in the Hintons' claim does not have any marked-through portions or any added "481 1078" endorsements.

¶40. In contrast to the Hintons' lack of proof that the 481T was created after the fact, an overwhelming amount of evidence exists that the 481T exclusion was written into both the initial policy and the renewal policy and that it was referenced in the amending policy. Cole's testimony is uncontradicted that C & S sought an insurance policy that would not cover tree stands because C & S was no longer selling tree stands. Ott's testimony supported the proposition that the 481T exclusion was included in the original policy. Ott testified that initially he had been forced to associate another broker in order to secure a specialty policy to cover the tree stands but that he found the Pekin policy on his own as it did not cover the tree stands. In addition to this testimony, the insurance application also had provided that the policy would not cover tree stands and related equipment. The Hintons simply have not presented any evidence that the 481T endorsement was created by Pekin after Timothy's fall and inserted into C & S's policy.

¶41. Thus, in sum, Pekin prevailed in its summary-judgment motion and demonstrated that no genuine issue of material fact existed as to whether the policy covered the loss due to the tree stand. The policy did not. In response, the Hintons failed to show a genuine issue of material fact.

B. TSG as an Additional Insured

¶42. After granting summary judgment to Pekin under the policy, the circuit court found that "the issue of whether The Sportsman's Guide is an additional insured under the Pekin policies is now a moot issue as between the Plaintiffs and Pekin Insurance Company." We agree and refrain from rendering an advisory opinion on the issue. See Hughes v. Hosemann , 68 So.3d 1260, 1263 (Miss. 2011) ("It is not within the province of this Court to render advisory opinions.").

II. The Hintons' Motion for Partial Summary Judgment

¶43. We now turn to the Hintons' raised errors concerning the denial of their motion for partial summary judgment. Our analysis of this issue is framed within the context of the language of the policy discussed above. No genuine issue of material fact exists as to whether the policy provided coverage for tree stands and related equipment. It did not. With this resolved, it becomes clear that the circuit court correctly denied the Hintons' motion for partial summary judgment.

A. Estoppel

¶44. The Hintons argue that the circuit erred by not granting its motion on the basis of estoppel. They argue that Pekin's failure to provide a defense to C & S or to obtain a judicial determination that it did not owe a defense should estop Pekin from raising any coverage defenses.

¶45. "An insurance company's duty to defend its insured is triggered when it becomes aware that a complaint has been filed which contains reasonable, plausible allegations of conduct covered by the policy. However, no duty to defend arises when the claims fall outside the policy's coverage." Baker Donelson Bearman & Caldwell, P.C. v. Muirhead , 920 So.2d 440, 451 (Miss. 2006). "Unquestionably, the insurance carrier has a right to offer the insured a defense, while at the same time reserving the right to deny coverage in [the] event a judgment is rendered against the insured." Moeller v. Am. Guar. & Liab. Ins. Co. , 707 So.2d 1062, 1069 (Miss. 1996). Within this context, "an insurer who withdraws from the defense of an action is estopped to deny liability under the policy if its conduct results in prejudice to the insured; but it is not estopped to do so if its action does not result in any prejudice to the insured." S. Farm Bureau Cas. Ins. Co. v. Logan , 238 Miss. 580, 590, 119 So.2d 268, 272 (1960).

¶46. Here, the Hintons argue that Pekin assumed coverage of C & S's defense only to abandon C & S eight days later. They further argue that this action resulted in prejudice to C & S as an entry of default was noticed against C & S on April 2, 2014.

¶47. The Hintons, though, failed to demonstrate a genuine issue of material fact on this issue. Pekin did retain an attorney to investigate the claims on behalf of its insured, C & S three to four days after Pekin received notice of the claim. Pekin denied coverage to C & S in an email from Manning on February 15 and a letter on February 18. Manning wrote C & S, "the Pekin Policy was written with endorsement 481T (1078) ... which excludes coverage for deer/tree stands or any related equipment. In the absence of coverage, the policy has obligation to provide neither a defense nor indemnity to it's [sic] policyholder, C & S Global Imports, Inc." Manning's email to C & S stated that Pekin would continue to fund C & S's defense through February 21 so that C & S could properly align its defense. Thus, Pekin denied coverage to C & S under the policy and defined the scope of the remaining representation.

¶48. Because Manning's email stated that Pekin retained an attorney for C & S "under reservation of rights," the Hintons maintain that Pekin assumed the defense of C & S's claim. The full context of Manning's email, though, shows that Pekin assigned an attorney "under reservation of rights" as soon as it received notice of the claims against C & S. Five days later, Pekin denied coverage to C & S. We find that an insurance company should not be estopped from raising coverage defenses when it assigns its insured an attorney upon receipt of a notice of claim, investigates the claim and promptly denies coverage.

¶49. The Hintons' reliance on Maryland Casualty Company v. Nestle is misplaced. Md. Cas. Co. v. Nestle , 2010 WL 3735756, at *1 (S.D. Miss. Sept. 17, 2010). There, the insurer defended its insured for two years under a potentially defective reservation-of-rights letter. Id. at *2. The insurer then brought a declaratory-judgment action against its insured and sought to deny coverage. Id. The district court denied the insurer's motion for summary judgment, since a genuine issue of material fact existed as to whether the reservation-of-rights letter was effective, and it was too early to tell whether the insured was prejudiced. Id. at *6-7. Pekin, though, denied coverage promptly. Even if we were to find that Pekin had assumed C & S's defense by assigning it an attorney, it quickly withdrew, leaving forty-one days until the entry of default. Thus, Nestle does not establish that a genuine issue of material fact existed in this case.

¶50. Further, Logan is factually distinguishable. Logan , 119 So.2d at 268. In Logan , the insurer had been negotiating a settlement on behalf of its insured. Id. at 269-70. When the settlement negotiations fell through, the insurer notified its insured of its withdrawal from the matter and its denial of coverage under the policy. Id. at 270. The same day, a default judgment was entered against the insured. Id. On appeal, the Court estopped the insured from raising coverage defenses. Id. at 269-72. Here, though, Pekin denied coverage to C & S on February 15. The entry of default was not entered until April 2-forty-seven days later. It is undisputed that C & S did nothing in the interim to defend itself or to prevent the default. Logan , though, required C & S to act: "[I]n a case of estoppel for untimely withdrawal or damages resulting from the injustified [sic] refusal to defend, in either case the insured must act in good faith and do what is reasonably required under the circumstances to diminish the damages." Id. at 272.

¶51. Also, we focus our analysis on the actions of C & S as the insured, not what the Hintons would have done had they been in C & S's position. While the Hintons have standing to bring C & S's legal claims against Pekin in order to establish coverage, they are still bound by the actions of C & S. See Titan Indem. Co. v. Williams , 743 So.2d 1020, 1022-23 (Miss. Ct. App. 1999). Again, C & S did nothing to avoid the entry of default between the denial of coverage and April 2. In fact, Cole never executed the release sent to C & S by Pekin, and the record reveals that the parties struggled during the litigation to locate and depose Cole. Cole testified that he had only appeared at a later hearing in the case to "get my head out of the sand and try to get this stuff resolved."

¶52. Last, the Hintons maintain that the circuit court erred in denying their motion for partial summary judgment since Pekin's counsel admitted in a hearing that Manning's letter was not a proper reservation-of-rights letter. This argument is without merit. While Pekin's counsel did state that the email and letter were not proper reservations-of-rights letters, he claimed that this was because Pekin denied coverage. Pekin's counsel stated:

Now, when Tim Manning reached out to Jeff Cole in February of 2014, was that up to speed and up to snuff as far as the reservation of rights letter goes? No. But what he did during that communication, unlike all of these other cases that you'll look at, especially the Nestle one, is that he said there's no coverage and we're only providing you with a defense for six days after which point in time you're on your own.

¶53. The Hintons failed to meet their burden in seeking partial summary judgment against Pekin. Pekin denied coverage to C & S and withdrew any representation without prejudice to its insured. Thus the circuit court did not err in denying partial summary judgment to the Hintons on this issue.

B. Waiver

¶54. Under three separate headings in their brief, the Hintons argue that the circuit court erred by not granting summary judgment against Pekin under a theory of waiver. The essence of their argument is that Pekin waived its coverage defenses by failing either to defend the suit under a reservation of rights or to seek a declaratory judgment that it owed no duty to defend C & S. The Hintons offer a number of different theories in support of these claims. In the end, though, the Hintons' arguments are without merit, given the resolution of the first issue (the policy included the 481T) and the fact that Pekin denied coverage to C & S.

¶55. "Waiver is defined as 'an intentional relinquishment or abandonment of a known right or privilege.' " Wilson v. Gen. Motors Acceptance Corp. , 883 So.2d 56, 68 (Miss. 2004) (quoting Johnson v. Zerbst , 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938) ). "Moreover, the fact of waiver typically must be proved by clear and convincing evidence." Moorman v. Tower Mgmt. Co. , 451 F.Supp.2d 846, 853 (S.D. Miss. 2006) (citing Swift v. Aberdeen Lumber Co. , 172 Miss. 697, 159 So. 301, 305 (Miss.1935) ).

¶56. In short, the Hintons did not meet their burden to demonstrate that no genuine issue of material fact existed as to whether Pekin waived its coverage defenses. No evidence appears in the record that Pekin waived its right to assert coverage defenses. Instead, it denied coverage to C & S.

¶57. Without showing a conflict of laws between Illinois and Mississippi law, the Hintons rely on Employers Insurance of Wausau v. Ehlco Liquidating Trust , 186 Ill.2d 127, 237 Ill.Dec. 82, 708 N.E.2d 1122, 1134 (1999). They argue that under Ehlco , Pekin was required either to defend C & S under a reservation of rights or to seek a declaratory judgment. While the Hintons cite a number of Illinois decisions, distinguishing and explaining the Ehlco court's analysis is sufficient to address the Hintons' waiver arguments.

¶58. The Ehlco court's analysis does not support either the Hintons' waiver or estoppel arguments:

The general rule of estoppel provides that an insurer which takes the position that a complaint potentially alleging coverage is not covered under a policy that includes a duty to defend may not simply refuse to defend the insured. Rather, the insurer has two options: (1) defend the suit under a reservation of rights or (2) seek a declaratory judgment that there is no coverage. If the insurer fails to take either of these steps and is later found to have wrongfully denied coverage , the insurer is estopped from raising policy defenses to coverage.

Id., 237 Ill.Dec. 82, 708 N.E.2d at 1134-35 (emphasis added). Aside from this principle of law relating to estoppel and not waiver, the Ehlco court's discussion of estoppel is inapplicable here, given the 481T exclusion. The insurance policy did not provide any coverage. Further, the insurer is only estopped (or waives its rights according to the Hintons) when the denial of coverage was wrongful. Here, it was not. Moreover, as discussed below, Pekin did actually file a declaratory-judgment action against C & S and the Hintons.

¶59. Also, the Hintons maintain that Pekin's later reservation-of-rights letter to C & S in July 2016 and its provision of a defense to C & S is an admission by Pekin that it had earlier abandoned C & S or wrongfully denied coverage. In the end, though, this argument does not prevail, given that there is no genuine issue of material fact as to the original denial of coverage, which we have found was proper. The fact that Pekin reconsidered its coverage position does not support either the Hintons' estoppel or waiver arguments. A number of legitimate reasons could have supported Pekin's decision to defend C & S in 2016 other than admission of fault.

¶60. The Hintons did not demonstrate a genuine issue of material fact as to Pekin waiving its coverage defenses under the policy. Their interpretation of the doctrine of waiver is not supported by Mississippi (or Illinois) law. Pekin denied coverage to C & S and did not waive its policy defenses.

C. Judicial Estoppel

¶61. Throughout their brief, the Hintons claim that the circuit court erred by not granting summary judgment against Pekin on the issue of judicial estoppel. They maintain that Pekin should be judicially estopped from offering any evidence that C & S did not tender its defense to Pekin or that C & S contends that there was no coverage under the policy. We find no merit in the Hintons' argument.

¶62. "Judicial estoppel is designed to protect the judicial system and applies where intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice." Kirk v. Pope , 973 So.2d 981, 991 (Miss. 2007) (internal quotation omitted). "Judicial estoppel precludes a party from asserting a position, benefitting from that position, and then, when it becomes more convenient or profitable, retreating from that position later in the litigation." Clark v. Neese , 131 So.3d 556, 560 (Miss. 2013) (internal quotation omitted). Judicial estoppel has three elements: "A party will be judicially estopped from taking a subsequent position if (1) the position is inconsistent with one previously taken during litigation, (2) a court accepted the previous position, and (3) the party did not inadvertently take the inconsistent positions." Id. (citing Kirk , 973 So.2d at 991 ).

¶63. The Hintons maintain that Pekin should be estopped from relying on Cole's testimony that he does not remember tendering C & S's defense to Pekin and that C & S did not believe it had coverage under the policy. The Hintons argue that these two pieces of evidence are at odds with Pekin's representations in an Illinois declaratory-judgment action. On March 25, 2014, Pekin filed a declaratory judgment against TSG, C & S and the Hintons. Pekin represented that "C & S tendered its defense to Pekin for the Hinton action" and that "[t]he above contentions of Pekin are, on information and belief, denied by C & S which, in turn, contends that it is covered under the Pekin policy." (Emphasis added.) From a review of the record, the last ruling in the declaratory-judgment action was an entry of default against C & S:

This Court finds that the default against C & Global [sic] Imports, Inc.[,] entered on June 22, 2014[,] stands and further Orders that the Court has never made any findings on the insurance coverage for C & S Global Imports, Inc.[,] or any Defendant and this Court leaves all issue of coverage to another Court in another jurisdiction. No Judgments have been entered against C & S Global Imports, Inc.

¶64. Pekin's representations in the declaratory-judgment action, though, were not an intentional self-contradiction to obtain an unfair advantage. Kirk , 973 So.2d at 991. Cole's failure to communicate with Pekin forced Pekin to represent to the Illinois court that "upon information and belief" C & S "contend[ed] that it [wa]s covered under the Pekin policy." Cole never executed the policy release that Pekin had sent him. He also stopped returning Manning's phone calls and was difficult to locate. Further, are representations in the record demonstrate that process servers were unable to serve Cole with subpoenas to compel his deposition. By his own admission, Cole only voluntarily appeared at a later court hearing to "get my head out of the sand and try to get this stuff resolved." Also, the record is clear that no adverse ruling or judgment on the issue of insurance coverage was entered. The entry of default clearly stated that the court never made any findings on coverage and left those issues to other courts. Thus, we find that Pekin should not be judicially estopped from relying on Cole's testimony.

CONCLUSION

¶65. For the foregoing reasons, we affirm the circuit court's rulings. The circuit court did not err in denying the Hintons' motion for partial summary judgment or in granting Pekin's motion for summary judgment and in dismissing Pekin from the suit.

¶66. AFFIRMED.

KING, P.J., COLEMAN, MAXWELL, BEAM, ISHEE AND GRIFFIS, JJ., CONCUR. RANDOLPH, C.J., AND KITCHENS, P.J., NOT PARTICIPATING.

      The litigation is before the Court for the second time. See Pekin Ins. Co. v. Hinton , 192 So.3d 966 (Miss. 2016). On interlocutory appeal, the Court determined that Pekin, an Illinois company, was subject to personal jurisdiction in Mississippi. Id. at 974. The Court provided a detailed account of the early procedural history of this case. Id.

      The number of listed forms and endorsements went from thirty-two in the initial policy to thirty-three in the renewal policy because of a new endorsement included in the renewal policy: "ILLINOIS CHANGES - CIVIL UNION."

      Pekin used variations of the 481 endorsement throughout its policies. A 481T amended the actual policy manuscript; a 481N added an additional insured to the policy.

      The Court has reviewed the intervening procedural history of this case from the entry of the notice of default until just before the filing of the third amended complaint. See Pekin , 192 So.3d at 967-70.


source: Caselaw Access Project

author: BEAM, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    Marquan D. STOVER v. Elaine G. DAVIS, Executrix of the Estate of Tamora G. Robinson, Deceased
    NO. 2016-CT-01605-SCT
    Supreme Court of Mississippi.
    April 25, 2019
    ATTORNEYS FOR APPELLANT: MARQUAN D. STOVER (PRO SE), RICK D. PATT, Jackson.
    ATTORNEY FOR APPELLEE: JACK G. MOSS, Raymond.
    EN BANC.
    ON WRIT OF CERTIORARI
   BEAM, JUSTICE, FOR THE COURT:

¶1. Marquan D. Stover filed a motion to contest the second codicil to his great aunt Tamora Robinson's last will and testament, alleging that the second codicil was the product of undue influence by Robinson's sister Elaine Davis. After a hearing, the Chancery Court of the Second Judicial District of Hinds County, found no undue influence and dismissed Stover's motion to contest.

¶2. Stover appealed, arguing that the chancellor had erred by not requiring Davis to rebut the presumption of undue influence and that the decision was not supported by substantial, credible evidence. The Court of Appeals issued a plurality decision, affirming the ruling of the chancellor. Stover v. Davis , 2016-CP-01605-COA, --- So.3d ----, 2018 WL 2110017 (Miss. Ct. App. May 8, 2018). This Court granted Stover's petition for a writ of certiorari . We hold that the court must find by clear and convincing evidence that a presumption of undue influence, which arises when a confidential relationship is coupled with suspicious circumstances, is rebutted. We reverse the decisions of the Court of Appeals and of the chancery court, and we remand for further factfinding by the chancellor.

FACTS

¶3. Robinson died on October 11, 2013, at the age of eighty-nine. She had no children, and her husband predeceased her. Before her death, Robinson executed a last will and testament, signed June 14, 1993, a first codicil, signed October 12, 2000, and a second codicil, signed May 20, 2013. On October 28, 2013, the chancery court admitted Robinson's will and the two codicils to probate and issued letters testamentary to Davis.

¶4. On November 7, 2013, Stover filed a motion to contest the second codicil on the ground that it had been the product of undue influence by Davis. The second codicil had made two changes to Robinson's will. First, it changed the disposition of thirty acres of real property, which originally had been devised to a nephew, Richard Robinson. That property was devised to Davis. Second, it nominated Davis as executrix and Robinson's niece Sherry Fletcher as successor executrix in the event that Davis was unable, removing Robinson's other sister, Clyda Myers, from that role. Davis testified that the reason for these changes was that Richard Robinson and Clyda Myers both had predeceased Robinson.

¶5. At the hearing, Stover testified that he believed the devise of property to Davis and her nomination as executrix resulted from undue influence. Before Robinson's mental decline, according to Stover, she had expressed that she wanted the thirty acres to remain in the Robinson family and that Davis violated that wish. Further, Stover testified that Robinson was on medication for dementia. In early 2013, she suffered a stroke that had worsened her mental condition greatly. After the stroke, Stover said that Robinson could not eat, bathe, or comb her hair without assistance, and she could not identify the time, date, or year. Stover testified that Robinson would frequently behave unusually, yelling, "Can I lay down" when she already was lying down.

¶6. Davis testified that Robinson, who was twenty-one years older than she, had been diagnosed with dementia in March 2006. Following the diagnosis, the progress of the disease had been slow, and Robinson, according to Davis, had known what she was doing when she executed the second codicil. Davis testified that Robinson did sometimes ask to lie down but that usually she was in a recliner at those times, although occasionally she was lying in bed already. Davis also testified that the family had established a conservatorship for Robinson in 2006 after Stover had purchased a Cadillac in Robinson's name and also had acquired credit cards in her name. Clyda Myers had acted as Robinson's conservator until Myers's death, when Myers was succeeded by Davis.

¶7. Davis testified that she and her husband, Leroy Davis, and another relative, Sylvester Griffin, visited Robinson on May 20, 2013, at the nursing home. Davis recalled conversations with Robinson in which she would state how much she missed Myers, and Davis said she would remind Robinson that Myers had died "and, you know, we need to know what you want to do." Davis testified that Robinson was concerned about "her business," meaning the will. Davis asked Robinson whom she wanted to replace Myers as executrix, and Robinson replied, "Why can't you and Sherry do it." Davis also told her that Richard Robinson had died and asked Robinson what she wanted to do about the property she had left to him. According to Davis, Robinson thought about it and said she wanted to leave it to Davis. Davis asked if she was sure, and Robinson said yes. So Davis used her own cell phone and called Robinson's attorney, Jack Moss. Davis said that when Moss arrived, Robinson recognized him.

¶8. Moss testified that he had been Robinson's attorney since approximately 1980, that he had drafted the will and both codicils for Robinson, and that he had established her conservatorship. Moss testified that when Davis called, he asked to speak with Robinson. They talked for a few minutes, and he said he wanted to meet with her in person. Moss traveled to Compere Nursing Home and visited Robinson. He asked the family to leave the room so that he could question Robinson to determine her capabilities. He testified that Robinson's state of mind was good. She was physically weakened, but she could sit up in bed. Moss said that Robinson recognized him and knew the objects of her bounty. Moss testified that, after speaking with Robinson for twenty or thirty minutes, he went back to his office and drafted the second codicil. Then he returned to the nursing home and read over the codicil with Robinson. She signed it, witnessed by Moss and Sylvester Griffin. Moss opined that Robinson had not been influenced unduly by anyone in executing the codicil.

¶9. The chancellor found that Davis had established a prima facie case of the validity of the will and codicils. The chancellor found that Stover had not satisfied his burden to show that the second codicil was the result of undue influence and entered a judgment dismissing Stover's motion to contest.

STANDARD OF REVIEW

¶10. "A chancellor's findings of fact will not be disturbed unless they are manifestly wrong or clearly erroneous, or unless the chancellor applied an erroneous legal standard." Wright v. Roberts , 797 So.2d 992, 997 (Miss. 2001) (citing In re Estate of Grantham , 609 So.2d 1220, 1223 (Miss. 1992) ).

DISCUSSION

¶11. "The sole issue in a will contest is devisavit vel non, or will or no will." Trotter v. Trotter , 490 So.2d 827, 833 (Miss. 1986). The proponent of the will has the burden of proof of the will's validity, and this burden of proof stays with the proponent throughout the trial. Harris v. Sellers , 446 So.2d 1012, 1014 (Miss. 1984). The proponent makes a prima facie case of validity when the will and record of probate are admitted into evidence. Id. At that point, the burden shifts to the contestant to produce evidence challenging the will's validity. Clardy v. Nat'l Bank of Commerce of Miss. , 555 So.2d 64, 66 (Miss. 1989).

¶12. The contestant raises a presumption of undue influence by showing the existence of a confidential relationship between the testator and a beneficiary under the will, along with suspicious circumstances. Croft v. Alder , 237 Miss. 713, 723, 115 So.2d 683, 686 (1959). Suspicious circumstances may include the testator's mental infirmity or direct involvement of the beneficiary in the confidential relationship in preparing or executing the will. Id. at 686. When a presumption of undue influence arises, then the proponent of the will bears the burden to rebut the presumption with clear and convincing evidence that the will was not the result of undue influence. In re Estate of Dabney , 740 So.2d 915, 921 (Miss. 1999) (citing Croft v. Alder , 237 Miss. 713, 115 So.2d 683, 686 (1959) ). To rebut the presumption, the proponent must show three things: "(a) good faith on the part of the beneficiary, (b) the testatrix's full knowledge and deliberation of the consequences of her actions, and (c) the testatrix received the advice of a competent person disconnected from the beneficiary and devoted wholly to him." Id. at 921 (citing Murray v. Laird , 446 So.2d 575, 578 (Miss. 1984) ).

¶13. As the Court of Appeals recognized, the chancellor made no findings on whether a confidential relationship had existed between Robinson and Davis or whether a presumption of undue influence arose. Stover , --- So.3d at ----, 2018 WL 2110017, at *24. Yet the Court of Appeals held that, even if a presumption of undue influence had arisen, Davis rebutted it, because clear and convincing evidence existed in the record to satisfy the three-prong test. Stover , --- So.3d at ----, 2018 WL 2110017, at *27. We disagree. The record shows that the chancellor found that Davis had made a prima facie case of the will's validity and that Stover had not met his burden to show that the second codicil was the product of undue influence. The chancellor misstated the burden of proof as preponderance of the evidence when the burden for a presumption of undue influence is clear and convincing. See In re Estate of Dabney , 740 So.2d at 921 (citing Croft , 115 So.2d at 686 ). Further, the record does not show the burden-shifting scheme set forth above. If a presumption of undue influence had, in fact, arisen, then Stover did meet his burden, and Davis, the proponent of the will and codicils, bore the burden to rebut the presumption with clear and convincing evidence.

¶14. As the chancellor rightly found, Davis's submission of the will and the record of probate and its receipt into evidence established a prima facie case of the will's validity. But Stover's proof raised a presumption of undue influence, because he showed that Davis was in a confidential relationship with Robinson when the second codicil was executed and that the second codicil had been executed under suspicious circumstances.

¶15. Because Davis was Robinson's duly appointed conservator, a confidential relationship was established. We have held that "[a] conservator stands in the position of a trustee, has a fiduciary relationship with the ward and is charged with a duty of loyalty toward the ward." Bryan v. Holzer , 589 So.2d 648, 657 (Miss. 1991). While the existence of a conservatorship alone is not immediate grounds for undue influence, the courts should not take lightly the role, power, trust, and influence of the conservatorship relationship between the person or ward and his or her conservator. Wards deserve the most meticulous judicial scrutiny in situations such as this to ensure the ward's protection. When a confidential relationship exists, coupled with suspicious circumstances, the proponent of the will bears the burden of rebutting the presumption by clear and convincing evidence.

¶16. Suspicious circumstances were shown by the undisputed evidence that Robinson suffered from dementia. A conservatorship had been established for Robinson in 2006, and Davis, who stepped into the role of conservator after Myers died, was directly involved in the preparation of the will. Davis testified that she discussed the will with Robinson. Davis reminded Robinson of the deaths of a named beneficiary and the executrix, and the changes made in the codicil were both to Davis's benefit. Davis called Attorney Moss on her own cell phone to initiate the process of procuring the second codicil. Given that these facts were uncontested, the burden shifted to Davis to prove, by clear and convincing evidence, "(a) good faith on the part of the beneficiary, (b) the testatrix's full knowledge and deliberation of the consequences of her actions, and (c) [that] the testatrix received the advice of a competent person disconnected from the beneficiary and devoted wholly to him." In re Estate of Dabney , 740 So.2d at 921 (citing Murray , 446 So.2d at 578 ).

¶17. Because the chancellor erroneously did not recognize that a presumption of undue influence had arisen, the chancellor made no findings of fact on the three-part test for determining whether Davis had rebutted the presumption by clear and convincing evidence. Instead, the chancellor found that Stover had not met his burden. But Stover had, in fact, met his burden of production, resulting in the burden's shifting to Davis to rebut the presumption with clear and convincing evidence. Because the evidence was such that the chancellor reasonably could have found either that Davis had rebutted the presumption or that she had not, we reverse the decisions of both courts and remand to the chancery court for factfinding on whether Davis rebutted the presumption by clear and convincing evidence.

CONCLUSION

¶18. We hold that the chancellor manifestly erred by failing to find that a presumption of undue influence had arisen, by stating the wrong burden of proof, and by failing to require Davis to rebut the presumption of undue influence with clear and convincing evidence. Therefore, we reverse the decisions of the Court of Appeals and of the chancery court, and we remand for further factfinding by the chancellor.

¶19. REVERSED AND REMANDED.

RANDOLPH, C.J., KING, P.J., COLEMAN, MAXWELL, CHAMBERLIN AND ISHEE, JJ., CONCUR. KITCHENS, P.J., AND GRIFFIS, J., NOT PARTICIPATING.

      Stover testified that Robinson had leased this vehicle for him like she had done for four or five other vehicles up until that point. Stover explained that the credit cards were in his name because Robinson also frequently purchased his children's school supplies. Davis pursued an elderly abuse claim with the attorney general's office, but nothing came of the investigation. It is undisputed that Robinson was suffering from dementia.

      Presumably, Robinson was referring to Sherry Fletcher.

      Devisavit vel non means "he (or she) devises or not." Devisavit vel non , Black's Law Dictionary (10th ed. 2014). "An issue directed from a chancery court to a court of law to determine the validity of a will that has been contested, as by an allegation of fraud or testamentary incapacity. Id.


author: MAXWELL, JUSTICE, FOR THE COURT:

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Judge Jesse BURTON
    NO. 2018-JP-01537-SCT
    Supreme Court of Mississippi.
    April 25, 2019
    ATTORNEYS FOR APPELLANT: DARLENE D. BALLARD, RACHEL WILSON MICHEL, MCCOMB, MEAGAN COURTNEY BRITTAIN
    ATTORNEY FOR APPELLEE: RICHARD B. LEWIS, CLARKSDALE
    EN BANC.
   MAXWELL, JUSTICE, FOR THE COURT:

¶1. On July 17, 2017, Jesse Burton-a justice court judge for the Southern District of Coahoma County-filed an affidavit claiming his former girlfriend had stolen money and personal property from him. Based on this affidavit, another justice court judge issued an arrest warrant for Judge Burton's girlfriend, Regina Burt. But before the warrant was served, Judge Burton changed his mind and instructed the clerk's office to rescind the warrant that the other judge had issued. As directed, the deputy clerk replaced Judge Burton's girlfriend's name on the warrant with Jane Doe and instructed the sheriff's office not to execute it.

¶2. Acting on a complaint from Burt, on August 29, 2018, the Mississippi Commission on Judicial Performance filed a formal complaint against Judge Burton, who cooperated and entered an agreed stipulation of facts with the Commission. The parties' agreement included the Commission's recommended sanction of a public reprimand and $ 500 fine. After review, this Court agrees with the Commission's findings and recommended sanction.

Background Facts and Procedural History

¶3. As part of the stipulation of agreed facts, which included a proposed sanction, Judge Burton agreed he committed misconduct when he ordered a deputy clerk to rescind his former girlfriend's arrest warrant. He agreed he violated Canons 1, 2A, 2B, 3B(1), 3B(2), and 3E(1) of the Code of Judicial Conduct of Mississippi and Mississippi Code Section 97-11-1. This was Judge Burton's first disciplinary matter before the Commission in his twenty-seven-year career as a justice court judge. And the Commission recommended he be publicly reprimanded and fined $ 500. After a hearing, the Commission adopted the agreed stipulation of facts and recommended sanction in a five-to-one vote. The Commission and Judge Burton filed a joint motion, asking this Court accept the Commission's findings and recommended sanctions.

Discussion

¶4. Mississippi Constitution article 6, section 177A, vests this Court with the power to, on the recommendation of the Commission on Judicial Performance, "remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for ..." willful misconduct in office or conduct prejudicial to the administration of justice that brings the judicial office into disrepute. Miss. Const. art. 6, § 177A ; see also Miss. Comm'n on Judicial Performance v. Vess , 227 So.3d 952, 956 (Miss. 2017). As the ultimate decision-maker in judicial performance cases, we conduct an independent review of the record. Miss. Comm'n on Judicial Performance v. Thompson , 80 So.3d 86, 88 (Miss. 2012). While we carefully consider the Commission's findings and recommendations, we are not bound by them and may impose lesser or more severe sanctions. Miss. Comm'n on Judicial Performance v. Osborne , 16 So.3d 16, 19 (Miss. 2009). This is true even when the Commission and judge enter into a joint recommendation. Miss. Comm'n on Judicial Performance v. Sanford , 941 So.2d 209, 217-18 (Miss. 2006). In short, our task is to determine if the judge committed misconduct and, if so, to decide on an appropriate sanction.

I. Misconduct

¶5. Judge Burton acknowledged and agreed that rescinding an arrest warrant, signed by another judge in a matter in which he was a party, prejudiced the administration of justice and brought the judicial office into disrepute. And he acknowledged and agreed that his actions violated Canons 1, 2A, 2B, 3B(1), 3B(2), and 3E(1) of the Code of Judicial Conduct of Mississippi and Mississippi Code Section 97-11-1.

¶6. This Court has found willful misconduct when a judge interfered in matters before another judge. See Thompson , 80 So.3d at 92. Willful misconduct may also exist when a judge has a clear conflict of interest, but still remains involved in the case. See Miss. Comm'n on Judicial Performance v. Bowen , 123 So.3d 381, 384-85 (Miss. 2013) ; see also Miss. Comm'n on Judicial Performance v. Hartzog , 32 So.3d 1188, 1193-94 (Miss. 2010).

¶7. Judge Burton interfered with an arrest warrant that another judge had issued. Judge Burton was also a party in that matter. Both he and the Commission agreed his willful misconduct prejudiced the administration of justice and brought the judicial office into disrepute. We find Judge Burton committed willful misconduct.

II. Sanctions

¶8. This Court considers the following six factors when deciding an appropriate, proportionate sanction:

(1) the length and character of the judge's public service; (2) whether there is any prior caselaw on point; (3) the magnitude of the offense and the harm suffered; (4) whether the conduct was willful, intended to deprive the public of assets, or if it exploited the judge's position; (5) whether the conduct was willful, intended to deprive the public of assets, or if it exploited the judge's position; and (6) the presence or absence of mitigating or aggravating factors.

Vess , 227 So.3d at 956-57 (quoting Miss. Comm'n on Judicial Performance v. Thompson , 169 So.3d 857, 869 (Miss. 2015) ).

1. Public Service

¶9. Judge Burton has served as a justice court judge for Coahoma County for the past twenty-seven years. This is his first disciplinary matter in his almost three decades in office.

2. Prior Caselaw

¶10. The Commission and Judge Burton point to the similar facts and sanctions in Mississippi Commission on Judicial Performance v. Thompson , 972 So.2d 582, 584 (Miss. 2008), overruled on other grounds by Mississippi Commission on Judicial Performance v. Boone , 60 So.3d 172 (Miss. 2011). In that case, two sisters got into a fight at their grandmother's funeral. One of them, Deborah Moody, filed charges against the other. Id. While in the justice court clerk's office, Moody spoke with Judge Thompson. He initially advised her that another judge should handle her case. Id. But while Moody sought to initiate her case with a different justice court judge-Judge Sheffield-Judge Thompson intervened and tried to discuss the warrant with Judge Sheffield before it was issued. Id. Judge Sheffield declined to discuss the matter with Judge Thompson and said he intended to move forward and issue the warrant. Id.

¶11. Afterwards, Judge Thompson instructed a deputy clerk not to issue the warrant. Id. at 584-85. The aggrieved Moody soon learned what Judge Thompson had done and reported these actions to Judge Sheffield. Id. Judge Sheffield ordered the clerk's office to issue the warrant. He also gave Moody the number for the Mississippi Commission on Judicial Performance. Id.

¶12. An investigation into Judge Thompson's alleged misconduct was initiated. And the Commission and Judge Thompson entered an agreed statement of facts and proposed recommendation, which they submitted to this Court. Id. at 585. The Commission recommended Judge Thompson be publicly reprimanded and fined $ 100. Id. After review, this Court agreed with the Commission's recommendations and ordered Judge Thompson to be publicly reprimanded and fined $ 100. Id.

¶13. Thompson is somewhat similar to this case. Both Thompson and this matter deal with a justice court judge's interfering with issuing warrants. Although the warrant in Thompson was issued and resulted in Moody's sister's arrest, here, Judge Burton's misconduct resulted in a warrant not being issued. Instead, he meddled in a case involving his own interests and gave an order he should not have given. However, these cases are close enough in context to say the Commission's recommended sanction of a public reprimand and a $ 500 fine-an increased fine from that in Thompson -is supported.

3. Magnitude of the Offense and Harm Suffered

¶14. Judge Burton's situation is unusual. He is both the complainant who filed an affidavit supporting an arrest warrant and the judge whose interference kept the warrant from being executed. Still, as this Court has pointed out many times, the justice courts are the public's main-if not only-contact with the judicial system and if justice court judges do not act professionally, the public will not understand or respect the legal process. See Miss. Comm'n on Judicial Performance v. Bustin , 71 So.3d 598, 604-05 (Miss. 2011).

¶15. When legal disputes arise, the public must have confidence they will be decided by an impartial jurist. By acting in an official capacity in a case in which he was a party and had a conflicting interest, Judge Burton acted improperly. Such conduct erodes the public perception of the judiciary. Judge Burton could have simply withdrawn his complaint, rather than using his judicial position to snuff out the arrest warrant. And in addition to the judicial canons, Judge Burton agreed he violated Mississippi Code Section 97-11-1, which prohibits falsifying or erasing public records.

4. Pattern of Misconduct

¶16. Judge Burton has no prior disciplinary history before the Commission. And the Commission emphasizes this was an isolated incident in Judge Burton's twenty-seven-year service as a justice court judge.

5. Extent of Willful Misconduct, Deprivation of Public Assets, or Exploitation of Position

¶17. This Court measures the appropriate sanction by examining the extent to which the judge's misconduct was willful. We also consider how the judge exploited his or her position to satisfy personal desires or whether the misconduct was intended to deprive the public of assets. See Miss. Comm'n on Judicial Performance v. Skinner , 119 So.3d 294, 306-07 (Miss. 2013). When considering the extent of Judge Burton's misconduct, this Court must decide if he " 'acted in bad faith, good faith, intentionally, knowingly, or negligently.' " Thompson , 169 So.3d at 872 (quoting Miss. Comm'n on Judicial Performance v. Harris , 131 So.3d 1137, 1146 (Miss. 2013) ). Judge Burton did not deprive the public of any assets. But, as the Commission points out, he willfully used his position for personal reasons. See Vess , 227 So.3d at 957. As the Commission put it, rather than "follow[ ] the procedure that all other affiants are forced to follow when they no longer want to prosecute their criminal matters ...," Judge Burton, in his capacity as a judge, ordered the clerk's office to rescind Burt's arrest warrant. Again, had Judge Burton acted in his capacity as complainant and withdrawn his affidavit, this matter would not be before us. But he did not. Instead, he exploited his office for personal reasons in a case in which he was a party.

6. Mitigating or Aggravating Factors

¶18. The record shows no aggravating factors. And when a judge has recognized his or her errors, this Court considers that recognition a mitigating circumstance. See Vess , 227 So.3d at 957-58. This Court also considers Judge Burton's full cooperation with the Commission, length of service, absence of prior misconduct, and admission of his misconduct as mitigating factors.

Conclusion

¶19. Judge Burton violated Canons 1, 2A, 2B, 3B(1), 3B(2), and 3E(1) of the Code of Judicial Conduct of Mississippi and Mississippi Code Section 97-11-1. His conduct was willful and prejudicial to the administration of justice and brought the judicial office into disrepute. But given this was Judge Burton's first disciplinary matter in his twenty-seven-year service and given his full admission and cooperation with the Commission, this Court agrees with the Commission's recommendation to publicly reprimand Judge Burton and to fine him $ 500.

¶20. JUSTICE COURT JUDGE JESSE BURTON SHALL BE PUBLICLY REPRIMANDED IN OPEN COURT BY THE PRESIDING JUDGE ON THE FIRST DAY OF THE NEXT TERM OF THE CIRCUIT COURT OF COAHOMA COUNTY IN WHICH A JURY VENIRE IS PRESENT, WITH JUDGE BURTON PRESENT, FOLLOWING THE ISSUANCE OF THE MANDATE OF THIS COURT. JUSTICE COURT JUDGE JESSE BURTON SHALL BE FINED $ 500.

RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

      Canon 1 of the Code of Judicial Conduct provides, in relevant part, that "[a] judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved."
      Canon 2A of the Code of Judicial Conduct provides that "[a] judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."
      Canon 2B of the Code of Judicial Conduct provides, in relevant part, that "[j]udges shall not allow their family, social, or other relationships to influence the judges' judicial conduct or judgment."
      Canon 3B(1) of the Code of Judicial Conduct provides that "[a] judge shall hear and decide all assigned matters within the judge's jurisdiction except those in which disqualification is required."
      Canon 3B(2) of the Code of Judicial Conduct provides, in relevant part, that "[a] judge shall be faithful to the law and maintain professional competence in it."
      Canon 3E(1) of the Code of Judicial Conduct provides, in relevant part, that "[j]udges should disqualify themselves in proceedings in which their impartiality might be questioned ... where ... the judge ... is a party to the proceeding ...."
      Mississippi Code Section 97-11-1 states that:
      If any clerk of any court, or public officer or any other person, shall wittingly make any false entry, or erase any work or letter, or change any record belonging to any court or public office, whether in his keeping or not, he shall, on conviction thereof, be imprisoned in the penitentiary for a term not exceeding ten years, and be liable to the action of the party aggrieved.
      Miss. Code Ann. § 97-11-1 (Rev. 2014).


text:
    Montrell JORDAN, Petitioner v. STATE of Mississippi, Respondent
    No. 2014-M-01731
    Supreme Court of Mississippi.
    February 14, 2018
    ORDER
   MICHAEL K. RANDOLPH, PRESIDING JUSTICE FOR THE COURT

Now before the en banc Court is Montrell Jordan's Application for Leave to File Second Motion for Post-Conviction Relief. The State of Mississippi's response is also before us.

Jordan filed this, his second, application outside the three-year statute of limitations. He claims trial and appellate counsel were ineffective for three reasons.

First, Jordan says trial counsel's undisclosed romantic relationship with the State's chief investigator and key trial witness created an actual conflict of interest. Jordan raised this argument in his first application and in federal habeas proceedings. Jordan v. Epps , No. 3:09CV544-DPJ-FKB, 2012 WL 5997046, at **13-15 (S.D. Miss. Aug. 8, 2012), report and recommendation adopted , No. 3:09CV544-DPJ-FKB, 2012 WL 5997024 (S.D. Miss. Nov. 30, 2012).

Second, Jordan argues trial counsel was ineffective for failing to object to reversible prosecutorial misconduct. Jordan raised this claim in federal habeas proceedings. Jordan , 2012 WL 5997046, at *16, report and recommendation adopted , 2012 WL 5997024 (S.D. Miss. Nov. 30, 2012).

Finally, Jordan asserts appellate counsel was ineffective for failing to cite authority or the record, which resulted in a procedural bar.

After due consideration, we find the first and second claims are barred by the doctrine of res judicata. Crawford v. State , 218 So.3d 1142, 1152-55, 1161 (Miss. 2016) ; Gilliard v. State , 614 So.2d 370, 373 (Miss. 1992). Notwithstanding the res judicata bar, we find all three claims are insufficient to surmount the time, waiver, and successive-writs bars. See Bevill v. State , 669 So.2d 14, 17 (Miss. 1996).

IT IS THEREFORE ORDERED that the application is denied.

SO ORDERED, this the 14th day of February, 2018.

TO DENY: RANDOLPH, P.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ.

KITCHENS, P.J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY KING, J.

WALLER, C.J., NOT PARTICIPATING.

KITCHENS, PRESIDING JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:

¶ 1. I respectfully disagree with this Court's decision. Montrell Jordan's claim of ineffective assistance of counsel is based on the undisputed fact that defense counsel was romantically involved with a key witness for the prosecution at all stages of the lawyer's representation. Defense counsel, Akillie Malone, was residing with the lead investigator in the case against Jordan, Officer Lacarus Oliver, at the time of the pretrial, trial, and post-trial proceedings. Six months after Jordan's conviction, Attorney Malone and Officer Oliver were married to each other. Because Jordan never was informed of this conflict, he had no opportunity either to waive the conflict knowingly and intelligently or to obtain other, conflict-free representation. Because this serious conflict of interest compromised the integrity of criminal proceedings against Jordan, I would find that it was presumptively prejudicial and denied him the constitutional guarantees of a fair trial with the effective assistance of conflict-free counsel. Accordingly, I would grant Jordan's application to proceed with a motion for post-conviction relief (PCR), reverse the conviction, and remand for a new trial.

Facts

¶ 2. Jordan was convicted of depraved-heart murder and received a life sentence. He was represented by Lawyers Akillie Malone and Antwayn Patrick. At some point after the trial, Jordan discovered that Attorney Malone had been romantically involved with the lead investigator on the case. This investigator, Officer Oliver of the Mississippi Bureau of Investigation, had taken the primary role in gathering evidence against Jordan, including an interview of him after his arrest. Oliver was a major witness against Jordan. The pretrial and trial testimony of Officer Oliver total approximately one hundred pages of transcript. At a pretrial hearing on a defense motion to suppress Jordan's audiotaped statement, Attorney Malone cross-examined Officer Oliver about Jordan's interview. And at trial, Attorney Malone cross-examined Officer Oliver about his investigation of the case, including Jordan's arrest, his interview, witness statements, a gunshot residue test, and the development of Jordan as the sole suspect. All the while, Jordan knew nothing of his lawyer's relationship with this key prosecution witness.

¶ 3. According to an affidavit from Antwayn Patrick attached to Jordan's PCR application, Attorney Patrick-Jordan's other defense lawyer-had known of the romantic relationship between Attorney Malone and Officer Oliver during his representation of Jordan. He swore that neither he nor Attorney Malone ever had informed their client of this romantic relationship.

¶ 4. After Jordan's discovery of defense counsel's conflict, he filed his first application for a motion for PCR with this Court, and a three-judge panel denied the claim in a single sentence: "[t]he panel further finds that the claim of ineffective assistance of counsel fails to meet the test set forth in Strickland v. Washington , 466 U.S. 668[, 104 S.Ct. 2052, 80 L.Ed.2d 674] (1984) [,] and that the application should be denied." Jordan then raised the issue in his federal habeas corpus proceedings. In his report and recommendation, Magistrate Judge F. Keith Ball found that the threshold issue was whether to apply the two-prong test from Strickland , requiring a showing that counsel's deficient performance prejudiced the defendant, or the test from Cuyler v. Sullivan , 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), in which the defendant is relieved of the burden to demonstrate prejudice and must show only that an actual conflict of interest adversely affected the adequacy of counsel's representation. Judge Ball found that, although Jordan's case involved a conflict of interest, the test from Strickland should apply. This was because the United States Supreme Court has applied the Cuyler test only in cases involving conflicts stemming from counsel's representation of multiple defendants.

¶ 5. Applying the Strickland test, Judge Ball found that Attorney Malone's failure to disclose her relationship with Oliver to Jordan was deficient performance. But Judge Ball made the additional finding that Jordan had failed to make any showing that he had been prejudiced by Attorney Malone's deficient performance. Judge Ball found from a review of the transcript that Attorney Malone had "cross-examined Oliver ably."

At the suppression hearing she questioned him vigorously as to why the tape recorder was not turned on during the time he read Jordan his rights and why Jordan had refused to sign the rights waiver form, and she challenged the inconsistency in his testimony as to whether Jordan asked the officers whether he needed an attorney. After Oliver's direct testimony at trial, which consisted primarily of a discussion of his interview with Jordan and reading from the transcript of the interview, Malone attempted to establish on cross-examination that Jordan had maintained his innocence during the interview in spite of Oliver's repeated efforts to pressure him into a confession. She also attempted to show that his investigation had been incomplete.

Because Jordan had not shown prejudice, Judge Ball found that he was entitled to no relief on his ineffective assistance of counsel claim.

¶ 6. The United States District Court for the Southern District of Mississippi adopted Judge Ball's opinion as the opinion of the court. The district court provided additional analysis of Jordan's ineffective assistance of counsel claim. The district court found that the facts underlying the claim were troubling and that this Court's one-sentence adjudication of the claim was limited, but that our decision was entitled to deference nonetheless. The district court found that it was reasonable for this Court to review Jordan's claim under Strickland rather than Cuyler , because the United States Supreme Court has not expanded Cuyler 's application beyond claims of conflicts engendered by multiple representation. And, in Beets v. Scott , 65 F.3d 1258, 1265-66 (5th Cir. 1995), an en banc decision of the Fifth Circuit had limited Cuyler to cases involving multiple representation. After finding no error in the application of Strickland rather than Cuyler , the district court noted its agreement with Judge Ball's finding that Jordan had failed to show prejudice, specifically, a reasonable likelihood that the outcome of the proceeding would have been different but for Attorney Malone's deficient performance.

The instant case

¶ 7. Jordan now brings his ineffective assistance of counsel claim before this Court in his second application for leave to proceed with a motion for post-conviction relief. Although his claim technically is time-barred, barred as a successive pleading, and barred under the doctrine of res judicata by the Uniform Post-Conviction Collateral Relief Act (UPCCRA), I would allow his claim to proceed because, not only does Jordan assert the violation of a fundamental right, he has provided an arguable basis for the claim. "[E]rrors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA." Rowland v. State , 42 So.3d 503, 507 (Miss. 2010). The claim must have an arguable basis. Means v. State , 43 So.3d 438, 442 (Miss. 2010). In Bevill v. State , 669 So.2d 14, 17 (Miss. 1996), this Court signaled that a sufficiently egregious instance of ineffective assistance of counsel could warrant an exception to the bars of the UPCCRA and enable judicial review. "It is conceivable that under the facts of a particular case, this Court might find that a lawyer's performance was so deficient, and so prejudicial to the defendant, that the defendant's fundamental constitutional rights were violated." Id. I submit that the undisputed facts demonstrate such an egregious and clear denial of Jordan's fundamental constitutional rights to the effective assistance of counsel and a fair trial that his particular claim should be excepted from those provisions of the UPCCRA that otherwise would bar review.

¶ 8. Due process guarantees a criminal defendant the fundamental right to a fair trial. Strickland , 466 U.S. at 684, 104 S.Ct. 2052. The right to the effective assistance of counsel is secured by the Sixth and Fourteenth Amendments to the United States Constitution. U.S. Const. Amend. VI ("In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence"); U.S. Const. Amend. XIV. The Mississippi Constitution also guarantees the effective assistance of counsel. Miss. Const. Art. 3, § 26 ("In all criminal prosecutions, the accused shall have the right to be heard by himself or counsel, or both ...."). Additionally, a defense attorney has a duty of undivided loyalty to the client that "is essential to the due process guarantee of the Fifth Amendment." Littlejohn v. State , 593 So.2d 20, 23 (1992). See also Miss. Const. Art 3, § 14 ("No person shall be deprived of life, liberty, or property except by due process of law").

¶ 9. To succeed on a typical claim of ineffective assistance of counsel, the defendant must show that counsel's performance was deficient, and that the deficient performance prejudiced the defense. Strickland , 466 U.S. at 687, 104 S.Ct. 2052. To show prejudice, the accused must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. But where the ineffectiveness alleged is a conflict of interest and a resultant breach of the duty of loyalty, the Supreme Court has applied a different test. As explained in Strickland , in Cuyler v. Sullivan , 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L. Ed. 2d 333 (1980), the Supreme Court held that, when no objection was raised at trial and counsel had an actual conflict of interest that adversely affected his lawyer's performance, prejudice will be presumed. Strickland , 466 U.S. at 692, 104 S.Ct. 2052. Cuyler had involved a conflict arising from multiple representation, and in Mickens v. Taylor , 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), the Supreme Court noted that Cuyler might not apply to other types of conflicts. As discussed above, in Beets , the Fifth Circuit limited Cuyler to instances of multiple representation, with all other conflicts to be adjudicated under Strickland. Beets , 65 F.3d at 1265-66. In this case, the district court applied these principles of federal law to conclude that Jordan's claim must be analyzed under Strickland and that, because he cannot show outcome-determinative prejudice, his claim fails.

¶ 10. But this Court has promulgated a stronger standard to assure that criminal defendants in Mississippi state courts receive the assistance of conflict-free counsel. In Armstrong v. State , 573 So.2d 1329, 1331 (Miss. 1990), we recognized that adept representation encompasses minimum competence and loyal assistance. "Effective assistance of counsel envelops conflict-free representation." Id. In Littlejohn , we held that, when there is an actual conflict of interest, "[t]he conflict itself demonstrates a denial of the right to have the effective assistance of counsel." Littlejohn , 593 So.2d at 22. "Under our system of jurisprudence, if a lawyer is not one hundred percent loyal to his client, he flunks." Littlejohn , 593 So.2d at 22.

¶ 11. The Mississippi Rules of Professional Conduct prohibit a lawyer from representing conflicting interests without the client's knowing and informed consent.

Miss. R. Prof'l Conduct 1.7. Rule 1.7(b) provides:

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless the lawyer reasonably believes:
(1) the representation will not be adversely affected; and
(2) the client has given knowing and informed consent after consultation. The consultation shall include explanation of the implications of the representation and the advantages and risks involved.

Miss. R. Prof'l Conduct 1.7(b). This ethical requirement reflects the vital fact that "[l]oyalty is an essential element in the lawyer's relationship to a client." Miss. R. Prof'l Conduct 1.7 cmt. If a conflict arises during trial, the attorney has a duty to advise the court promptly. Cuyler , 446 U.S. at 346, 100 S.Ct. 1708.

¶ 12. In Kiker v. State , 55 So.3d 1060, 1066 (Miss. 2011), defense counsel also represented the jailhouse informant who had provided the key testimony against Kiker that defeated his defense of accident. This Court unanimously reversed, holding that "[w]hen the accused is represented by an attorney with an actual conflict of interest, the accused has received ineffective assistance of counsel as a matter of law ...." Relying on language from Armstrong and Littlejohn , Kiker held that, when there was an actual conflict and the defendant did not knowingly and intelligently waive the constitutional right to conflict-free representation, reversal is automatic, and no showing of prejudice is required. Id. Thus, Kiker held, "the standard set out in Strickland ..., requiring a showing of 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different,' is inapplicable to cases when the defendant's attorney 'actively represented conflicting interests.' " Id. Kiker further held that, when "an actual conflict is demonstrated, a showing of specific prejudice is not necessary, for to hold otherwise would engage a reviewing court in unreliable and misguided speculation as to the amount of prejudice suffered by a particular defendant." Id. (quoting Littlejohn , 593 So.2d at 25 ). The Court held that it is when a potential, rather than an actual, conflict is demonstrated, such as undertaking dual representation of codefendants without an objection, that the defendant must show the potential conflict actually affected the adequacy of the representation, a lesser showing than the proof of prejudice required under Strickland and comparable to the Cuyler test. Kiker , 55 So.3d at 1066. While this Court has questioned Kiker , Crawford v. State , 192 So.3d 905, 917 (Miss. 2015), it has not been overruled and, as reflected in subsequent case law, Rowsey v. State , 188 So.3d 486, 498 (Miss. 2015), it continues to provide the standard in Mississippi for analyzing claims of ineffective assistance of counsel based upon a conflict of interest.

¶ 13. In reviewing Jordan's claim, this Court is not bound by federal precedent in this area. Rather, we are empowered to construe the right to counsel afforded by our state constitution more broadly than the corresponding federal constitutional provision. We have articulated that

[w]e accord to the U.S. Supreme Court the utmost respect in its interpretation of the U.S. Constitution. We must, however, reserve for this Court the sole and absolute right to make the final interpretation of our state Constitution and, while of great persuasion, we will not concede that simply because the U.S. Supreme Court may interpret a U.S. Constitutional provision that we must give the same interpretation to essentially the same words in a provision of our state Constitution.

Penick v. State , 440 So.2d 547, 551 (Miss. 1983). Thus, it matters not that Cuyler , Mickens , Beets and related federal cases have not embraced broad protections such as those articulated in Kiker , and that the district court did not afford Jordan any relief under federal standards. Under the law of this state, Jordan is entitled to relief.

¶ 14. Kiker provides that, when an actual conflict of interest exists between defense counsel and client, the defendant need not show any specific prejudice to the defense. Jordan has produced an abundance of evidence of an actual conflict. Defense counsel, Malone, was living with the lead witness against her client at all stages of the representation, and she married that witness six months after the trial. The interests of an attorney representing a criminal defendant and the State's lead investigator are diametrically opposed. Oliver's job was to build the strongest possible case for the conviction of Jordan, and Malone's job was to thwart that undertaking. I would find that, when defense counsel is in a committed romantic relationship with the lead prosecution witness, that is an actual conflict of interest. Therefore, no showing of prejudice is required, and Jordan is entitled to a new trial.

¶ 15. The Court of Appeal for the Third District of California confronted a similar situation. People v. Jackson , 167 Cal.App.3d 829, 213 Cal.Rptr. 521 (Cal. Ct. App. 1985). There, defense counsel had dated the prosecutor for eight months before the defendant was tried, and the two lawyers met on a regular basis for movie and dinner dates throughout the proceedings against the defendant. Id. at 831, 213 Cal.Rptr. 521. However, unlike the scenario presented by this case, they never lived together and never married. Id. Citing the need for public confidence in the integrity and impartiality of the judicial system, the Court of Appeal found that, as a matter of state law, prejudice would be presumed. Id. at 832, 213 Cal.Rptr. 521. The court stressed the need to avoid even an appearance of impropriety, and it recognized the perils inherent in this particular breed of conflict:

As distinct from parties to casual social contacts, those who are involved in a sustained dating relationship over a period of months are normally perceived, if not in fact, as sharing a strong emotional or romantic bond. Such an apparently close relationship between counsel directly opposing each other in a criminal prosecution naturally and reasonably gives rise to speculation that the professional judgment of counsel as well as the zealous representation to which an accused is entitled has been compromised. No matter how well intentioned defense counsel is in carrying out his responsibilities to the accused, he may be subject to subtle influences manifested, for example, in a reluctance to engage in abrasive confrontation with opposing counsel during settlement negotiations and trial advocacy.

Id. at 832-33, 213 Cal.Rptr. 521 (citations omitted). Although this case involves the prosecution's lead investigator rather than opposing counsel, these same considerations were present.

¶ 16. It may well be, as the magistrate judge and the district court found in Jordan's habeas proceedings, that a facial review of the cold record seems to reflect that Attorney Malone was highly professional and that she credibly cross-examined her paramour. But this Court cannot know what other areas of inquiry an independent lawyer might have explored on cross examination. We do not know what was left undone and unsaid. Attorney Malone was sufficiently unscrupulous that she chose not to inform the court of a glaring conflict that placed her at odds with her client. Attorney Malone and Oliver lived together during the trial, and it is strains credulity to imagine that they never talked about Malone's impending examination of Oliver, especially considering that Malone lacked the professional integrity to inform her client or the court of the conflict. It is worth noting that Attorney Malone, not Attorney Patrick, cross-examined Oliver on both occasions. Even if Attorney Malone and Oliver never discussed the conflict, it was for the client to decide whether to waive it.

¶ 17. Certainly, Attorney Malone committed a grave breach of her ethical obligations by failing to disclose such a patently obvious conflict to the court, opposing counsel, and, of course, her client. Had the conflict been disclosed, Jordan would have been entitled to the appointment of substitute counsel. Littlejohn , 593 So.2d at 25. It is unlikely that any defendant aware of the true state of affairs between defense counsel and the detective who had gathered the evidence against him would have chosen that lawyer to defend him. But even assuming Jordan would have and could have waived the conflict, waiver would have required the trial judge's participation by determining from Jordan's narrative statement that he knowingly and intelligently decided to proceed with counsel burdened by a conflict. Id. (quoting United States v. Alvarez , 580 F.2d 1251, 1260 (5th Cir. 1978) ). As it stands, the substantial romantic entanglement between defense counsel and the State's lead investigator denied Jordan the effective assistance of counsel as a matter of state law. The uniquely disturbing facts of this case should compel this Court to grant Jordan's PCR application and reverse and remand for a new trial.

KING, J., JOINS THIS SEPARATE WRITTEN STATEMENT.

      Attorney Patrick's concealment of the relationship between Attorney Malone and Oliver violated the Mississippi Rules of Professional Conduct. Attorney Patrick violated Rule 1.4(b), which requires a lawyer to explain matters to the client to the extent reasonably necessary to enable the client to make informed decisions. Miss. R. Prof'l Conduct 1.4(b). In his affidavit, Attorney Patrick swore that he and Attorney Malone were law partners. As members of the same firm, Attorney Malone's conflict was imputed to Attorney Patrick, disqualifying him from representing Jordan absent compliance with Rule 1.7(b). Miss. R. Prof'l Conduct 1.10(a); 1.7(b). Attorney Patrick also violated his duty of candor to the court concerning his own conflict and Attorney Malone's violation of the rules. Miss. R. Prof'l Conduct 1.7 cmt.; 8.3(a). After Jordan's trial, Attorney Patrick was disbarred due to unrelated conduct.