author: KITCHENS, PRESIDING JUSTICE, FOR THE COURT: CHAMBERLIN, JUSTICE, DISSENTING:

text:
    OLSHAN FOUNDATION REPAIR COMPANY OF JACKSON, LLC d/b/a Olshan Foundation Solutions and Wayne Brown v. Gloria MOORE, Phillip R. Moore and Katelyn A. Moore
    NO. 2017-CA-00138-SCT
    Supreme Court of Mississippi.
    June 28, 2018 Rehearing Denied September 6, 2018
    ATTORNEYS FOR APPELLANTS: RICHARD M. DYE, KATHLEEN INGRAM CARRINGTON, RIDGELAND
    ATTORNEYS FOR APPELLEES: ROBIN L. ROBERTS, HATTIESBURG, CHRISTOPHER D. NOBLES, HEATHER E. MURRAY
    EN BANC.
   KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. Phillip Moore, Gloria Moore, and Katelyn Moore sued Olshan Foundation Repair of Jackson, LLC (Olshan), and Wayne Brown in Perry County Circuit Court. Olshan and Brown sought to compel arbitration pursuant to an arbitration provision within a contract between Phillip Moore and Olshan for the repair of the foundation of the Moores' home. The circuit court ordered Phillip and Gloria Moore to arbitrate their claims. But because the circuit court declined to order Katelyn Moore to the arbitral forum, Olshan and Brown now appeal. We affirm the judgment of the Perry County Circuit Court denying the motion to compel arbitration filed by Olshan and Brown as to Katelyn Moore's claims.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 10, 2013, Phillip Moore contracted with Olshan for repairs to the foundation of the home he shared with his wife, Gloria Moore, and his adult daughter, Katelyn Moore. Phillip, Gloria, and Katelyn Moore sued Olshan and Brown in the Circuit Court of Perry County on April 29, 2016, requesting contract damages solely for Phillip Moore and Gloria Moore, including damages related to loss of value and expenses to repair their home. Katelyn Moore alleged intentional or negligent infliction of emotional distress. The only remedy she sought is found in the unnumbered prayer for relief, separate and apart from the contract damages sought by Phillip Moore and Gloria Moore.

¶ 3. After Olshan and Brown moved to compel arbitration, the circuit court held a hearing. It then entered an order granting the motion with respect to Phillip and Gloria Moore's claims while denying the motion as it pertains to Katelyn Moore's claims. Regarding Katelyn Moore's claims, the circuit court reasoned that the terms of the contract were not broad enough to include Katelyn as a third-party beneficiary of the agreement and that the arbitration agreement could not be enforced against Katelyn on the grounds of estoppel "as her claims are not based solely on the terms of the contract." The circuit court explained:

Katelyn asserts claims for intentional or negligent infliction of emotional distress and negligence which could be pursued regardless of whether or not there was a contract. Moreover, due to ambiguity in the Complaint, it is not clear to the [c]ourt if Katelyn is seeking to assert claims for breach of contract and breach of warranty. Those claims more properly belong to Phillip and Gloria.

The trial court further held that Katelyn Moore was neither a third-party beneficiary nor a direct beneficiary of the Olshan contract, because:

the terms of the contract were not expressly broad enough to include Katelyn as a third-party by name or as one of a specified class, as Katelyn was not an owner of the property. Furthermore, Katelyn was not a direct beneficiary of the contract. The fact that Katelyn resides in the home makes her an incidental, not direct beneficiary of the construction work performed by Olshan. See Rein v. Benchmark Construction Company , 865 So.2d 1134 (Miss. 2004) ; Simmons Housing Inc. v. Shelton ex rel. Shelton , 36 So.[3]2d 1283 (Miss. 2010).

¶ 4. Olshan and Brown appeal only the circuit court's denial of their motion to compel Katelyn Moore to arbitrate her claims.

ANALYSIS

¶ 5. A grant or denial of a motion to compel arbitration is reviewed de novo . Harrison Cty. Commercial Lot, LLC v. H. Gordon Myrick, Inc. , 107 So.3d 943, 949 (Miss. 2013) (citing Cmty. Bank of Miss. v. Stuckey , 52 So.3d 1179, 1181 (Miss. 2010) ).

¶ 6. The circuit court held that the arbitration provision in the foundation-repair contract between Phillip Moore and Olshan was valid and enforceable and that Gloria Moore was a third-party beneficiary. Phillip and Gloria Moore declined to cross-appeal the circuit court's decision that the arbitration agreement was valid and enforceable respecting their claims. Accordingly, the validity of the arbitration provision, itself, is not before the Court. The only question is whether Katelyn Moore, a nonsignatory, is bound to arbitrate her claims against Olshan.

¶ 7. Olshan contends that a federal policy favoring arbitration exists and the Federal Arbitration Act (FAA) requires "that 'we rigorously enforce agreements to arbitrate.' " East Ford, Inc. v. Taylor , 826 So.2d 709, 713 (Miss. 2002) (quoting Shearson/Am. Express, Inc. v. McMahon , 482 U.S. 220, 226, 107 S.Ct. 2332, 2337, 96 L.Ed.2d 185 (1987) ). But Phillip Moore contracted specifically with Olshan for Mississippi law to govern any disputes or lawsuits arising out of their agreement. So the FAA does not apply to this case. And Mississippi courts will "not override the clear intent of the parties, or reach a result inconsistent with the plain text of the contract, simply because the policy favoring arbitration is implicated." B.C. Rogers Poultry Inc. v. Wedgeworth , 911 So.2d 483, 487 (Miss. 2005) (quoting EEOC v. Waffle House, Inc. , 534 U.S. 279, 294, 122 S.Ct. 754, 764, 151 L.Ed.2d 755 (2002) ).

¶ 8. Only in the rarest of circumstances, and with caution, should we shackle a citizen to an agreement of others that strips the citizen of his or her constitutional right to a trial by jury. Miss. Const. Art. 3, § 31 ; see Pinnacle Trust Co., L.L.C. v. McTaggart , 152 So.3d 1123, 1127 (Miss. 2014) (quoting Scruggs v. Wyatt , 60 So.3d 758, 767 (Miss. 2011) (quoting Bridas S.A.P.I.C. v. Gov't of Turkmenistan , 345 F.3d 347, 354 n.3 (5th Cir. 2003) ) ) ("arbitration agreements apply to nonsignatories only 'in rare circumstances.' "). This Court has held that "[a] nonsignatory may be bound to an arbitration agreement under ordinary principles of contract and agency." Simmons Housing, Inc. v. Shelton ex rel. Shelton , 36 So.3d 1283, 1286 (Miss. 2010) (internal citations omitted). "[A] signatory may enforce an arbitration agreement against a non-signatory if the non-signatory is a third-party beneficiary or if the doctrine of equitable estoppel applies." Id. (internal quotations omitted).

¶ 9. Simmons was introduced to these proceedings by Olshan in its motion to compel arbitration, albeit for a different proposition. Roy and Kimberly Shelton and their two minor children brought suit against Simmons Housing, Inc., et al. , for claims concerning a defective mobile home. Simmons , 36 So.3d at 1285. The circuit court compelled the parents' claims to arbitration based on two agreements they had signed in purchasing the mobile home, but refused to compel the children's claims to arbitration. Id. at 1285-86. This Court held that the nonsignatory children could not be bound to arbitration because they were neither third-party beneficiaries, nor were they bound to the contract by virtue of direct-benefit estoppel. Id. at 1286-88.

¶ 10. First, the Simmons Court analyzed whether the Sheltons' children were third-party beneficiaries and held that a person may be considered a third-party beneficiary "if: (1) the contract between the original parties was entered for that person's or entity's benefit, or the original parties at least contemplated such benefit as a direct result of performance; (2) the promisee owed a legal obligation or duty to that person or entity; and (3) the legal obligation or duty connects that person or entity with the contract." Id. at 1286 (citing Burns v. Washington Savings , 251 Miss. 789, 796, 171 So.2d 322, 325 (1965) ). Simmons held that "a mere incidental or consequential benefit is insufficient." Id. at 1287 (quoting Adams v. Greenpoint Credit, LLC , 943 So.2d at 703, 708 (Miss. 2006) (daughter was not bound by arbitration clause found in the contract signed by her father) ). Accordingly, this Court held that the Sheltons' children were not third-party beneficiaries to the agreements signed by their parents, because the children "were not referenced or alluded to in the contract. Additionally, their living in the mobile home did not make them direct beneficiaries." Simmons , 36 So.3d at 1287. Here, as in Simmons , Katelyn Moore was not mentioned in the contract. She merely lived in the home. Simmons held that living under the same roof was insufficient to confer third-party-beneficiary or direct-beneficiary status.

¶ 11. Here, the trial judge eminently was correct in finding that Katelyn Moore was neither a third-party beneficiary nor a direct beneficiary because:

the terms of the contract were not expressly broad enough to include Katelyn as a third-party by name or as one of a specified class, as Katelyn was not an owner of the property. Furthermore, Katelyn was not a direct beneficiary of the contract. The fact that Katelyn resides in the home makes her an incidental, not direct beneficiary of the construction work performed by Olshan. See Rein v. Benchmark Construction Company , 865 So.2d 1134 (Miss. 2004) ; Simmons Housing Inc. v. Shelton ex rel. Shelton , 36 So.[3]2d 1283 (Miss. 2010).

¶ 12. The Simmons Court next analyzed whether equitable estoppel would bind the Sheltons' children to arbitration. Simmons , 36 So.3d at 1287. Equitable estoppel "is an extraordinary remedy to be used with caution." Adams , 943 So.2d at 709. "In the arbitration context, equitable estoppel prevents a party from embracing the benefits of a contract while simultaneously trying to avoid its burdens." Simmons , 36 So.3d at 1287.

¶ 13. Olshan unconvincingly argues that equitable estoppel applies because Katelyn Moore's claim of personal injury arises from the contract, so she should be bound to arbitrate. Katelyn Moore argues that she is not subject to equitable estoppel because she had no knowledge of the contract, and, therefore, she could not have benefitted knowingly from the contract. She continues that her claim for negligent and intentional infliction of emotional distress is not dependent on the contract. We agree. In Hattiesburg Health & Rehab Center, LLC v. Brown , 176 So.3d 17, 18 (Miss. 2015), a nursing home resident's wife, who had signed an admission agreement that contained an arbitration provision, filed a wrongful death lawsuit against the nursing home after her husband's death. The circuit court denied the nursing home's motion to compel arbitration, and this Court affirmed. Id. at 18, 25. On appeal, the nursing home argued that the decedent had been estopped from repudiating "the terms of the admission agreement because he received services from [the nursing home] and benefitted from the terms of the agreement." Id. at 23-24. This Court held that the husband's estate "is not attempting to 'enforce the terms' of the admission agreement, nor is it 'asserting claims that must be determined by reference to it.' " Id. at 24. The wife had "alleged claims of negligence, medical malpractice, ... deviations from the standard of care, respondeat superior , res ipsa loquitur , negligent supervision and retention and wrongful death." Id. at 19. With regard to the wife's claims, this Court observed: "[s]imply put, Leo's estate's claims sound in tort and [the wife] could pursue those claims without an admission agreement at all." Id. Here, too, Katelyn's claims sound in tort. Katelyn neither sought enforcement of the contract nor did she assert a prayer for relief in her complaint compelling performance of the contract.

¶ 14. The trial court correctly found that Katelyn Moore's claim for intentional or negligent infliction of emotional distress and negligence "could be pursued regardless of whether or not there was a contract."

¶ 15. Olshan next argues that direct-benefit estoppel mandates enforcement of an arbitration provision against a nonsignatory. "Direct-benefit estoppel involves non-signatories who, during the life of the contract, have embraced the contract despite their non-signatory status, but then, during litigation, attempt to repudiate the arbitration clause in the contract." Pinnacle Trust Co. , 152 So.3d at 1124 (quoting Noble Drilling Servs., Inc. v. Certex USA, Inc. , 620 F.3d 469, 473 (5th Cir. 2010) ). In order for direct-benefit estoppel to apply, a nonsignatory must " 'embrace' a contract containing an arbitration clause" in one of two ways. Scruggs , 60 So.3d at 760. First, a nonsignatory can embrace a contract "by knowingly seeking and obtaining 'direct benefits' from that contract." Id. Katelyn Moore did not. Or, a nonsignatory can embrace a contract "by seeking to enforce the terms of that contract or asserting claims that must be determined by reference to that contract." Id. Katelyn Moore did not. In Pinnacle Trust Co. , nonsignatory trustees were not bound to an arbitration agreement under direct-benefit estoppel because they were neither beneficiaries, direct or residual, nor were they aware of the agreement that would bind them to arbitrate their claims. Pinnacle Trust Co. , 152 So.3d at 1129. Neither was Katelyn Moore.

¶ 16. Katelyn Moore is not a direct beneficiary because she never sought to obtain any direct benefit from the foundation-repair contract. She is, as the trial court ruled, merely an incidental beneficiary. Simmons , 36 So.3d at 1287. Katelyn Moore is not asserting a claim that requires reference to the contract, and no evidence has been offered to support the argument that Katelyn knowingly sought any direct benefit from the contract or that she embraced its terms. Moreover, no evidence has been offered that Katelyn Moore knew of the contract's existence, much less that it contained an arbitration provision.

¶ 17. In any event, Katelyn Moore "cannot be required to arbitrate any disputes [to] which [she] did not agree ...." Harrison Cty. Commercial Lot, LLC , 107 So.3d at 949 (citing Scruggs , 60 So.3d at 767 ). In reviewing the contract, there is no evidence of the following: (1) that the contract between Olshan and Phillip Moore was intended for Katelyn Moore's benefit; (2) that Olshan and Phillip Moore at least contemplated such benefit to Katelyn Moore as a direct result of performance; (3) that Olshan owed a contractual obligation or duty to Katelyn Moore, or vice versa ; (4) that the terms of the contract were expressly broad enough to include Katelyn Moore either by name or by specified class; (4) that Katelyn Moore evidently was within the intent of the terms of the contract, and that Katelyn Moore would be within its benefits; (5) that Olshan had a substantial and articulate interest in the welfare of Katelyn Moore in respect to the subject of the contract; (6) that the contract references or alludes to Katelyn Moore; (7) that Katelyn Moore signed the contract; or (8) that Katelyn Moore consistently has maintained that other provisions of the same contract should be enforced to benefit her. Simmons , 36 So.3d at 1286-88.

¶ 18. Importantly, in Simmons , the children alleged contract-related claims. Simmons , 36 So.3d at 1288. The children did not seek to amend their complaint or to withdraw it to strike the contract-related claims. Id. Nevertheless, this Court remanded the case to proceed on the tort claims but declared the contract-related claims to have been relinquished. Id. at 1289. Here, Katelyn Moore did not assert a claim based on the contract because she does not request relief for damages under the contract.

¶ 19. Finally, Olshan cites Terminix International, Inc. v. Rice , 904 So.2d 1051 (Miss. 2004). In Rice , "a husband and wife sued Terminix for negligence, misrepresentation, fraud, breach of contract, and fraudulent inducement." Simmons , 36 So.3d at 1288 (citing Rice , 904 So.2d at 1058 ). This Court had held that "the wife was bound to the arbitration agreement under the ordinary principles of equitable estoppel." Id. (citing Rice , 904 So.2d at 1058 ). Olshan argues that Katelyn Moore's claims, "whether sounding in negligence or contract, all directly stem from Olshan's alleged failure to properly perform the foundation repair work covered by the Agreement." But in Simmons , this Court observed that the Rice Court, which had referenced the wife's claims in passing, "gave very little discussion as to why equitable estoppel applied to the facts of that case," and, according to a footnote, "afforded great weight to the fact that the wife's suit relied exclusively on the contract." Id. (citing Rice , 904 So.2d at 1057-58 n.3 ).

¶ 20. As in Simmons and Brown , Katelyn Moore is neither a third-party beneficiary to the foundation-repair contract nor is she bound by direct-benefit estoppel. Accordingly, we hold that Katelyn Moore's claims, including negligence and intentional/negligent infliction of emotional distress, are wholly independent of the terms of the contract to which she was not a party. We hold further that Olshan should not be allowed to enforce an arbitration clause respecting Katelyn Moore's claims, which are unrelated to the contract.

CONCLUSION

¶ 21. On de novo review, we find that the circuit court did not err in declining to compel Katelyn Moore's claims to arbitration. Accordingly, we affirm the judgment of the Perry County Circuit Court.

¶ 22. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., KING, COLEMAN AND BEAM, JJ., CONCUR. CHAMBERLIN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MAXWELL AND ISHEE, JJ.

CHAMBERLIN, JUSTICE, DISSENTING:

¶ 23. We should not expand the right to arbitration but rather apply already-established law. However, as all of the claims alleged against Olshan and Brown arose from the contract and Katelyn availed herself of that contract, acts already contemplated under existing law, I respectfully dissent. I would reverse the circuit court's denial of arbitration and remand the case to be compelled to arbitration in its entirety.

¶ 24. As the majority recognizes, a party is bound by the principles of direct-benefit estoppel where the party "seek[s] to enforce the terms of that contract or assert[s] claims that must be determined by reference to that contract." Scruggs v. Wyatt , 60 So.3d 758, 760 (Miss. 2011) ; see also Noble Drilling Servs., Inc. v. Certex USA, Inc. , 620 F.3d 469, 473 (5th Cir. 2010).

¶ 25. Despite the majority's insistence otherwise, Katelyn (herself or, in the alternative, through her mother as her next friend and natural guardian) has asserted claims that must be determined by reference to the contract. Under the complaint, Katelyn brought all five counts against Olshan and Brown. While the majority is quick to note the clear intent of the parties concerning the application of Mississippi law, it wholly ignores the Moores' admission on appeal that Katelyn brought all five counts in the complaint. On appeal, the Moores (including Katelyn) bluntly declare:

Katelyn, along with her parents Phillip and Gloria Moore, sued Olshan and Wayne Brown, as the employee and GM of Olshan, in Perry County Circuit Court for breach of contract, breach of warranty, negligence, fraud, and Intentional/Negligent Infliction of Emotional Distress (INIED) claims stemming from Olshan's failure to competently repair their foundation.

This admission is nothing new, though, as the Moores (including Katelyn), in their response to the motion to compel, argued that "[b]ecause the Moores' claims all arise out of the same occurrence , the claims should be resolved together, either through arbitration or trial." (Emphasis added.)

¶ 26. Instead of deferring to the language of the complaint and the Moores' claims, the majority is forced to draw the distinction that Katelyn has brought only count five against Olshan and Brown. This distinction is unsupported by the complaint and the entire record both in the circuit court and on appeal. The majority's attempt to justify its interpretation of the complaint by recognizing that Katelyn's damages were alleged separately is unavailing in light of the language of the complaint paired with the Moores' own understanding of the claims brought. Even if the circuit court was correct to interpret the complaint's use of the term "the Moores" as excluding Katelyn, Katelyn's continued insistence on appeal that she brought the claims alongside her parents renders this interpretation on appeal untenable.

¶ 27. Had Katelyn brought only count five, though, her claim still should be arbitrated. As to count five, the complaint's specific reference to Katelyn does not allege a cause of action against Olshan or Brown without the surrounding context of the breach-of-contract claims. As to Katelyn, count five states "Katelyn Moore has autism and other mental complications which cause emotional distress due to limited coping skills with physical manifestations of migraine headaches." Alone, these allegations do not allege any cause of action against Olshan and Brown. Instead, the allegations claim that Katelyn's autism and other mental complications caused her emotional distress. These are, at best, damages. Only when the allegations are read in conjunction with the first phrase of Phillip's claim does Katelyn's claim become actionable. The first phrase of Phillip's claim in count five provides: "Due to the actions of Olshan, as previously described in the statement of facts, and its negligence and breach of contract...."

¶ 28. The majority's reliance on Simmons and Brown is misplaced: in both those cases the Court declined to apply equitable estoppel, as the parties at issue were not bringing contact claims. Simmons Housing, Inc. v. Shelton ex rel. Shelton , 36 So.3d at 1283, 1288 (Miss. 2010) ; Hattiesburg Health & Rehab Center, LLC v. Brown , 176 So.3d 17, 24 (Miss. 2015). In Simmons , the Court recognized that the children "insist that they do not-and cannot-seek recovery for breach of contract." Simmons , 36 So.3d at 1288. Likewise, in Brown , the Court found that the estate's claims sounded in tort without reference to the contract. Brown , 176 So.3d at 24. Instead, here, the Moores insisted at the circuit court and now continue to insist on appeal that Katelyn brought the five counts in the complaint against Olshan and Brown.

¶ 29. Katelyn's claims against Olshan and Brown arose from the contract at issue in this case. Katelyn brought suit against Olshan and Brown under that contract, alleging claims that must, by the Moore's own admissions, be resolved by reference to that contract. As such, I would apply established law and compel Katelyn's claims to arbitration.

MAXWELL AND ISHEE, JJ., JOIN THIS OPINION.

      The following arbitration provision appeared on the back page of the contract:
      ARBITRATION : Contractor and Owner agree that any dispute or lawsuit arising out of this Agreement and Warranties shall be resolved by mandatory and binding arbitration pursuant to the arbitration laws in this state and in accordance with this agreement and the rules of the American Arbitration Association (AAA). Parties may arbitrate with an agreed upon arbitrator. If unable to agree, binding arbitration shall be administered by AAA. All costs shall be divided equally among the parties.

      The Moores requested the following relief:
      WHEREFORE, premises considered, as a result of the foregoing, damage was caused to the plaintiffs by the actions of Olshan. In particular, Gloria and Phillip Moore have suffered the following damages :
      1. Total and complete loss of the value of their home in the approximate amount of $200,000.00;
      2. Loss of use of their home during the time that the repairs were being undertaken;
      3. Loss of enjoyment of their home during the time that the damages were unrepaired;
      4. Expenses having the house repaired;
      5. Expenses having the house examined to determine what actions could be taken to salvage the value of the home;
      6. Medical bills for Phillip Moore to deal with his ulcerative colitis issues;
      7. Attorneys fees in attempting to have the house repaired;
      8. Other consequential damages such as interest on their loan.
      The Moores demand payment (1) for the full value of their home ($200,000.00), (2) for loss of use of their home in the amount of the rental value for (3) years ($36,000.00), (3) medical bills and emotional stress damages ($250,000.00) for Phillip Moore and $100,000.00 for Katelyn Moore , (4) actual and punitive damages for fraud in the amount of $100,000.00, (5) all attorneys fees, expenses, pre-judgment interest, and (6) punitive damages as may be allowed by law for the willful and wanton conduct of Olshan.
      (Emphasis added.)

      Instead of distinguishing Simmons -a factually analogous case-Olshan cites a Texas intermediate appellate court opinion that applies the FAA. In re Ford Motor Co. , 220 S.W.3d 21 (Tex. App. 2006).

      The Simmons Court's third-party-beneficiary analysis was based on Yazoo & M.V.R. Co. v. Sideboard , 161 Miss. 4, 133 So. 669 (1931). In Sideboard , a railroad labor union composed exclusively of white men entered into a union compensation agreement, which provided that the rights contained in the agreement would apply for both white and African-American employees alike. Id. at 670. On February 27, 1925, the railroad, having conceived at that time the idea that, because Sideboard was not, and could not be, a member of the union, he could not enforce any rights under the union contract. Id. Sideboard was notified that on and after March 16, 1925, he would no longer be paid wages for the job he was performing, but rather would be paid lesser wages for a different job. Id. Sideboard continued working, and checks were sent to him regularly at the new, lower rate, stipulating that he was paid in full for services rendered. Id. Sideboard accepted and cashed the checks from March 16, 1925, to March 1, 1927, during all of which time Sideboard was appealing for recognition of his right to equal pay, by letter and by personal interviews from officer to officer of the railroad company, by successive steps finally to the president of the entire railroad system based in Chicago, Illinois. The appeals were met with consistent and persistent refusal, and finally, when he saw that there was no possibility of any change of attitude on the part of the railroad, Sideboard declined to accept or cash any further pay checks on and after March 1, 1927, and went without accepting or cashing the paychecks for an additional year, until the railroad discharged Sideboard from service. Id. Sideboard prevailed in a jury trial in Warren County. This Court affirmed the trial court's judgment that Sideboard was a third-party beneficiary to the union contract and entitled to enforce rights under the contract, reasoning that:
      (1) When the terms of the contract are expressly broad enough to include the third party either by name as one of a specified class, and (2) the said third party was evidently within the intent of the terms so used, the said third party will be within its benefits, if (3) the promisee had, in fact, a substantial and articulate interest in the welfare of the said third party in respect to the subject of the contract.
      Id. at 671.

      "A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and, (2) a demand for judgment for the relief to which he deems himself entitled . Relief in the alternative or of several different types may be demanded." Miss. R. Civ. P. 8 (emphasis added).


source: Caselaw Access Project

author: KING, JUSTICE, FOR THE COURT: COLEMAN, JUSTICE, DISSENTING:

license: Public Domain

text:
    In the MATTER OF the ESTATE OF Dane Richard EUBANKS, Deceased: Cecilia Eubanks, Individually and as Administratrix of the Estate of Dane Richard Eubanks, Deceased v. Kathy May HUBER, as Parent and Legal Guardian for and On Behalf of David Randall
    NO. 2016-CA-01274-SCT
    Supreme Court of Mississippi.
    August 23, 2018
    ATTORNEYS FOR APPELLANT: H. BENJAMIN MULLEN, VINCENT J. CASTIGLIOLA, JR., PASCAGOULA
    ATTORNEY FOR APPELLEE: TREVOR BRUCE ROCKSTAD, GULFPORT
    EN BANC.
   KING, JUSTICE, FOR THE COURT:

¶ 1. In the first iteration of this case, the chancery court examined the principles underlying quantum meruit and found that Vincent Castigliola and David Kiyhet, attorneys for the estate of Dane Eubanks, should be awarded attorneys' fees from two minors out of a settlement they, and only they, obtained. After remand from this Court, the chancery court, for the second time, heard arguments as to whether Castigliola and Kiyhet should be awarded attorneys' fees from the two minors based on quantum meruit out of the settlement they obtained. The remand required that the chancery court make specific findings of fact. This time, again without making any findings of fact and without any contradictory evidence being introduced, the chancery court reversed course and found that the factors for quantum meruit were not met. Because the chancery court failed to follow remand instructions by failing to make findings of fact, and, because no contradictory evidence was adduced suggesting the factors for quantum meruit were suddenly not met, this Court reverses and remands the case for a further determination of attorneys' fees.

FACTS AND PROCEDURAL HISTORY

¶ 2. This case returns to this Court after a remand to the trial court regarding the determination of attorneys' fees. In 2006, sixteen-year-old Dane Eubanks was killed in an automobile accident. He was survived by his father, David Eubanks, his mother, Cecilia Eubanks, his brother Seth Eubanks, his maternal half-brother, Aiden Borries, and his paternal half-siblings, Allison Eubanks and David Eubanks Jr. He was also survived by his former stepfather, Kenny Borries, the father of Aiden. His mother, Cecilia Eubanks, signed a contingency-fee contract with attorney David Kihyet to file a wrongful-death suit. She then filed petitions to probate and to approve the contingency fee contract in the Chancery Court of Jackson County, which were approved. The court appointed Cecilia as administratrix.

¶ 3. Cecilia pursued a wrongful death claim against the driver of the vehicle in which Dane was a passenger. Allstate Insurance Company ("Allstate"), the insurer of the driver, offered to settle the case for $100,000, the bodily injury limits of the insured's policy. Cecilia filed a complaint to settle the wrongful death claim and to determine the heirs and wrongful death beneficiaries, which Kathy Huber, the mother of Allison and David Jr., joined. The chancery court approved the settlement, named Cecilia, Seth, Aiden, Allison, and David Jr. as the sole heirs and wrongful death beneficiaries, and ordered that the settlement proceeds be distributed equally.

¶ 4. Meanwhile, Cecilia filed an uninsured-motorist claim under Kenny Borries's commercial-vehicle insurance policy with Allstate, arguing that Dane was a "foster child" under that policy. Allstate filed an action for a declaratory judgment in the United States District Court for the Southern District of Mississippi, asking the court to declare that no uninsured motorist coverage existed for Dane under Borries's Allstate policy. The Estate and Cecilia filed a counterclaim arguing that Dane was covered by Borries's policy and that he was entitled to uninsured/underinsured motorist insurance coverage. It noted that "[t]he injuries suffered by Dane Eubanks in the collision in issue resulted in compensable damages for pain, suffering, mental anguish, medical expenses, funeral expenses, loss of future earnings and other damages." Because of the complexity of the federal court litigation, Kihyet associated Vincent Castigliola Jr. as cocounsel.

¶ 5. The parties held a settlement conference, at which they agreed to settle the claims for $250,000. Kihyet and Castigliola endeavored to maximize the settlement during the conference. Indeed, Allstate represented in federal court that Kihyet and Castigliola refused to settle for a lesser amount for the specific reason that the settlement would have to be split five ways. At the end of the settlement conference, Kihyet and Castigliola indicated to Allstate that they believed that Allison and David Jr. should not share in the settlement. The parties then agreed to allow the chancery court to give final approval to the settlement and to decide any issues surrounding which individuals were entitled to share in the settlement proceeds.

¶ 6. In the chancery court, the Estate and Cecilia maintained that the federal court settlement was for a contract claim and thus enured to the benefit of the Estate, and, accordingly, should be distributed to the heirs of the Estate, not the wrongful death beneficiaries. The Estate and Cecilia argued that Allison and David Jr., as half-siblings, were not heirs under Mississippi law, but conceded that they were wrongful death beneficiaries. Cecilia and the Estate sought clarification from the federal court regarding what claims the federal court case and settlement encompassed. Huber moved to intervene in the motion to clarify, but the district court denied the motion, finding that her children's interests were already represented. The federal court found that there was a valid meeting of the minds to settle "all of the claims by the Estate which included a later division by the Estate to the five adjudicated heirs and wrongful death beneficiaries." It further found that "how the proceeds are divided within the Estate is left to be determined by the Chancery Court."

¶ 7. The chancery court then divided the settlement equally among Cecilia, Seth, Aiden, Allison, and David Jr. The chancery court determined that "since the settlement was to include all claims of the heirs and wrongful death beneficiaries, the proceeds should be divided equally pursuant to the Wrongful Death Statute." The chancery court also awarded attorneys' fees to Kihyet and Castigliola in the amount of their contingency fee of forty percent. It noted that the facts and issues were very close to those found in Pannell v. Guess , 671 So.2d 1310 (Miss. 1996). The court found that "only the attorneys for Cecilia and the Estate contributed to the acquisition of settlement proceeds." It further found that "the sums obtained from Allstate would not have occurred but for their efforts." It determined that, while Allison and David Jr. were not bound by the contingency fee contract, they benefitted from the attorneys' work on the settlement. Based on quantum meruit , the court calculated that attorneys' fees would amount to $226,000, for which Allison and David Jr. would be responsible for one-fifth each, two-fifths total. It calculated that, even if it discounted the attorneys' hourly rates due to their later having taken an adverse position to Allison and David Jr., quantum meruit would still result in total fees of $156,875. If the court held Allison and David Jr. to the forty percent contingency fee, the overall award of attorneys' fees for the entire settlement (including the earlier $100,000 settlement) was $140,000, which would render the portion Allison and David Jr. were to pay as $28,000 each, or $56,000 total. Thus, it ruled that "in light of these calculations that although none of the minor children were bound by the contingency fee contract, the fee imposed therefrom is reasonable and more beneficial to the children than a quantum meruit based calculation." Based on the $250,000 settlement, the court then awarded attorneys' fees in the amount of $100,000, with Allison and David Jr. paying their equal shares of that. Huber appealed the award of attorneys' fees against Allison and David Jr., and Cecilia and the Estate cross-appealed, arguing that the chancellor erred by dividing the settlement equally among the wrongful-death beneficiaries.

¶ 8. The Court of Appeals affirmed the chancery court's decision to divide the settlement equally among the wrongful-death beneficiaries. Estate of Eubanks v. Eubanks , 197 So.3d 878, 893-94 (Miss. Ct. App. 2014) (" Eubanks I "). The Court of Appeals also analyzed the attorneys' fee issue in detail, reversing the chancery court judgment and remanding

for further proceedings for the chancellor to determine entitlement to the claimed fee and to provide express findings in support thereof. Any award should also be supported by findings sufficiently distinguishing the legal costs incurred by Castigliola and Kihyat in pursuing legal matters adverse to David Jr. and Allison in the federal court action relating to the Allstate settlement of the second wrongful-death claim.

Id. at 893. The Court of Appeals determined that the trial court's findings lacked "an accounting and explanation of the amount of time and related legal costs spent pursuing claims adverse to David Jr. and Allison in reaching the $250,000 Allstate settlement of the second wrongful-death claim. The record fails to explain whether the attorneys charged the Estate with costs incurred in federal court related to the motion to clarify." Id. at 887. It emphasized that "[t]he record fails to account for attorneys' time and legal costs incurred in the federal court negotiations and August 2010 settlement conference when attempting to exclude David Jr. and Allison from receiving settlement proceeds and benefits. The record further reflects no deduction for legal costs incurred related to the motion to clarify in federal court." Id. Citing caselaw, the Court of Appeals noted that an "attorney could only charge the minors for compensation for the work actually benefitting the minors." Id. at 888. It determined that "[s]uch determination constitutes the crux of the issue before us now in the instant case." Id. The Court of Appeals concluded that

We thus find the chancellor herein failed to set forth sufficient findings to distinguish the hours Castigliola and Kihyat (the Administratrix's counsel) incurred pursuing matters adverse to David Jr. and Allison in the federal court action and related settlement negotiations when attempting to exclude them from the $250,000 Allstate insurance settlement. Therefore, the record and the chancellor's related findings failed to provide sufficient support for the attorneys' fees assessed against David Jr. and Allison.

Id. at 892. It held that "[j]urisprudence requires the chancellor to determine that the costs were fair, reasonable, and necessary, and that the costs benefitted the minors. Kihyat and Castigliola also should be held to meet the established standard in proving entitlement to a fee, particularly for the legal costs incurred in the federal court proceedings, since the chancery-court-proceeding costs were already deducted." Id. at 893.

¶ 9. The Estate filed a petition for writ of certiorari with this Court, arguing that Court of Appeals decision was in error. We granted certiorari, and affirmed the Court of Appeals' judgment on the issue of the division of the settlement proceeds. Estate of Eubanks v. Eubanks , 197 So.3d 861 (Miss. 2015) (" Eubanks II "). Regarding the attorneys' fees, "because a majority of justices have not voted to reverse the Court of Appeals, its opinion and holding on this issue for this case must stand." Id. at 871. Four justices opined that the elements of quantum meruit were not met. Four justices opined that quantum meruit was warranted, but would remand the case to the trial court for it to deduct any attorneys' fees incurred in pursuing positions adverse to Allison and David Jr.

¶ 10. On remand, Castigliola and Kihyet introduced the same evidence they had introduced at the last hearing on attorneys' fees, and additionally detailed the hours they spent adverse to Allison and David Jr. At the conclusion of the hearing on the issue, the court noted that "it's unfair that these siblings collected a nice amount of money based on your work." In a two and a half page order, the court summarily found that "insufficient evidence was offered to show that the quantum meruit factors have been met." Again, the court did not make any detailed findings of facts. The Estate appealed to this Court. It argues that the trial court erred by failing to make detailed findings of fact, that the trial court erred in finding the quantum meruit factors were not met, and that the trial court erred in not considering the right to a fee for recovery of a common fund.

ANALYSIS

1. Standard of Review

¶ 11. The chancery court's determinations on questions of law are reviewed de novo. In re Estate of Baumgarder , 82 So.3d 592, 598 (Miss. 2012). The chancery court's findings of fact that are supported by substantial evidence will be reversed only if the chancellor abused her discretion, was manifestly wrong, her findings were clearly erroneous, or she applied an erroneous legal standard. Id. "The standard of review regarding attorneys' fees is the abuse of discretion standard, and such awards must be supported by credible evidence." Mabus v. Mabus , 910 So.2d 486, 492 (Miss. 2005) (quoting Miss. Power & Light Co. v. Cook , 832 So.2d 474, 486 (Miss. 2002) ).

2. Quantum Meruit

¶ 12. On remand, without making detailed findings as explicitly instructed by the Court of Appeals, the chancellor found that the quantum meruit factors were not met with regard to Allison and David Jr. The chancery court gave no indication as to why or on what grounds it found the quantum meruit factors were not met. See Tricon Metals & Servs., Inc. v. Topp , 516 So.2d 236, 238-39 (Miss. 1987). The failure to make specific findings of fact in this case, especially after an explicit instruction to do so, is an abuse of discretion. Id. at 239. This is especially true when the chancery court appeared to earlier find that the quantum meruit factors were met, and then, without explanation or findings, simply reversed course.

¶ 13. The dissent claims that the chancery court was ordered only to make findings if it granted attorneys' fees. Yet, the Court of Appeals ordered the chancery court to make findings regarding its determination. It did not limit the requirement of findings only to a determination if the chancery court found for one of the parties, but not the other. The Court of Appeals stated: "we reverse and remand to the chancery court for a determination of the attorneys' entitlement to the fee ... and for the chancery court to provide sufficient, detailed factual findings to aid and enable appellate review." Eubanks I , 197 So.3d at 894. Notably, the Court of Appeals did not state that factual findings would not aid and enable appellate review if the chancery court found that quantum meruit existed; and indeed, in this exact situation, factual findings would aid and enable our appellate review. Regarding its mandate, the Court of Appeals cited Mississippi Rule of Civil Procedure 52(b) and Topp . Rule 52(b) states that "[u]pon motion of a party ... or upon its own initiative ... , the court may amend its findings or make additional findings and may amend the judgment accordingly." Miss. R. Civ. P. 52(b). Rule 52(b) does not qualify that the findings should only be made if the court finds for one party, but not for the other. Rule 52(a) states that in actions without a jury "the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon ...." Miss. R. Civ. P. 52(a). Topp cites Rule 52(a) and states that, while Rule 52(a) vests the trial court with discretion in making findings of fact and conclusions of law, "[t]hat discretion ... should be exercised soundly consistent with established principles regarding the sound and efficient administration of justice. Trial and appellate courts have separate institutional roles. Our role is that of an appellate court and not as triers of fact." Topp , 516 So.2d at 239. It noted that this Court strives "mightily to respect limitations upon our role where appeals are taken regarding issues of fact. The process breaks down, however, where the trial court sitting without a jury does not independently make findings of fact." Id. We emphasized that "[a]s a practical matter, we can better perform our function if we know what the trial court did, and why." Id. The Court concluded that "in cases of any significant complexity the word 'may' in Rule 52(a) should be construed to read 'generally should.' In other words, in cases of any complexity, tried upon the facts without a jury, the Court generally should find the facts specially and state its conclusions of law thereon." Id. Nothing in the Court of Appeals' mandate, Rule 52, or Topp limits the direction to trial courts to make findings to a determination one way, but not the other; the dissent's claims that findings were mandated only if the trial court found for one party, but not the other, is belied by the Court of Appeals' mandate and the rules and caselaw - our law is not one-sided. Clearly, whether the trial court granted or rejected the claim for attorneys' fees, it should have made findings to support that conclusion and to aid and enable appellate review. It did not.

¶ 14. The attorneys' goal in settling the doubtful claim in this case was to maximize settlement for all, without regard to how that settlement would ultimately be distributed. Only after settlement was achieved did the attorneys attempt to exclude Allison and David Jr. As in Pannell v. Guess , after the settlement was made with the insurance company, the parents attempted to exclude the half-siblings from sharing in that settlement. Pannell v. Guess , 671 So.2d 1310, 1312 (Miss. 1996). Then, the half-siblings "hired their own attorney to represent them in any further matters dealing with the distribution of the wrongful death proceeds." Id. (emphases added). The Court still remanded the case for a determination of whether the contingency fee in the contract not signed by the half-siblings was reasonable, since the half-siblings derived a benefit from the attorney's efforts and acquiesced to the settlement amount. Id. at 1315. It further found that if the chancellor "should find that the contingency fee was not reasonable under the facts of this case, then he may assess a fee based on quantum meruit ." Id.

¶ 15. To prove the elements of quantum meruit , a party must show:

(1) valuable services were rendered or materials furnished; (2) for the person sought to be charged; (3) which services and materials were accepted by the person sought to be charged, used and enjoyed by him; and (4) under such circumstances as reasonably notified [the] person sought to be charged that [the party], in performing such services, was expected to be paid by [the] person sought to be charged.

Tupelo Redevelopment Agency v. Gray Corp., Inc. , 972 So.2d 495, 514-15 (Miss. 2007) (internal quotations omitted).

¶ 16. Certainly, in the case at hand, Kiyhet and Castigliola should not receive any payment from Allison and David Jr. for their work on how to distribute the proceeds of the settlement, as, in this regard, they worked against the interests of Allison and David Jr. However, Kiyhet and Castigliola obtained the settlement for the benefit of all who were to share in it, which ultimately included Allison and David Jr. Indeed, the federal court counterclaim stated that it was on behalf of the Estate and the wrongful death beneficiaries. Cecilia's deposition in that case indicated that she understood that the half-siblings would share in the recovery. Allstate represented that Kiyhat and Castigliola refused to settle for a smaller amount because of the five-way division of the settlement. Even the federal court found that "there was a valid meeting of the minds that Allstate agreed to pay $250,000 to the Estate for the settlement of all of the claims by the Estate which included a later division by the Estate to the five adjudicated heirs and wrongful death beneficiaries." Thus, they provided valuable services for Allison and David Jr. And Allison and David Jr. derived benefit from the efforts of Kiyhet and Castigliola, and they explicitly acquiesced to the settlement amount. They certainly accepted the money. Further, they had notice that Kiyhet and Castigliola expected to be paid from the settlement proceeds; indeed, they do not appear to complain about the attorneys' fees taken out of their portion of the first, $100,000 settlement. Thus, Kiyhet and Castigliola did perform services for Allison and David Jr., because they provided services to maximize the settlement for any and all who were to share in the proceeds, as explicitly recognized by the federal district court and Allstate. Only after the settlement was maximized to the benefit of all sharing in the proceeds did Kiyhet and Castigliola take positions adverse to Allison and David Jr. The chancery court appeared to be frustrated with the fact that Allison and David Jr., one of whom had no relationship to the deceased and the other who had little or no relationship with him, and neither of whom endeavored to spend the money to defend the suit from which this settlement arose, would reap the full financial benefit of the settlement without paying the attorneys who achieved that settlement for them. Yet, it then simply reversed its course without contradictory evidence, and without findings it declared that quantum meruit was not met. It appears that the factors of quantum meruit were met; yet, the appellate courts are again faced with the proposition of reviewing the chancery court's decision on this issue without any specific findings of fact, despite the record indicating that the chancery court changed course without reviewing contradictory evidence and despite an explicit mandate from the Court of Appeals to make findings of fact on this issue to enable appellate review.

¶ 17. To be certain, attorneys' fees associated with the motion to clarify in federal court should be deducted if the chancellor finds that quantum meruit is met. However, Allison and David Jr. clearly derived a benefit from the settlement negotiations with Allstate pursuant to the federal court action. See Franklin v. Franklin ex rel. Phillips , 858 So.2d 110, 123 (Miss. 2003). During the settlement negotiations, the objective of Kiyhet and Castigliola was to maximize the monetary amount of the settlement. While they did raise concerns about Allison and David Jr. sharing in the settlement, Allstate refused to address those concerns and all parties agreed that the chancery court would decide the issue of the division of the settlement. Thus, only attorneys' fees and expenses incurred during and after the federal court settlement negotiations should be deducted from the calculation of Allison's and David Jr.'s equitable portion of those legal costs if the chancellor finds quantum meruit is met.

¶ 18. The chancery court abused its discretion by reversing course on the quantum meruit issue without the findings of fact it was specifically ordered to make. The factors of quantum meruit do appear from the record to be met in this case, and the chancery court must make detailed findings on remand regarding its decision on quantum meruit , whether it decides the quantum meruit factors are met or are not met.

3. Common-Fund Doctrine

¶ 19. Eubanks argues alternatively that Kiyhet and Castigliola are due attorneys' fees based on the common-fund doctrine. It appears the issue was raised briefly before the chancery court, but the chancery court did not address it; if the chancery court finds it appropriate to address the common fund doctrine on remand, it may.

CONCLUSION

¶ 20. Because the chancery court again failed to make findings of fact to enable appellate review, and because the chancery court, without contradictory evidence or any explanation, reversed its determination in the first iteration of this case, this Court reverses the chancery court judgment and remands the case with specific instructions that the chancery court determine whether Allison and David Jr. should pay an equitable amount of attorneys' fees, and that the chancery court make specific and detailed findings of fact to support its decision, sufficient to enable appellate review. If the chancery court determines that attorneys' fees are warranted, it must be sure to disallow any fees connected to time spent contrary to the interests of Allison and David Jr.

¶ 21. REVERSED AND REMANDED.

WALLER, C.J., KITCHENS, P.J., AND BEAM, J., CONCUR; RANDOLPH, P.J., CONCURS WITH ANALYSIS IN PARTS 1 AND 2 AND IN RESULT. CHAMBERLIN, J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION. MAXWELL AND ISHEE, JJ., NOT PARTICIPATING.

CHAMBERLIN, JUSTICE, CONCURRING IN PART AND IN RESULT:

¶ 22. The chancery court erred in its conclusion that it was without authority to award attorneys' fees from Allison's and David Jr.'s portion of the second settlement. I agree with the majority that Kihyet and Castigliola "provided services to maximize the settlement for any and all who were to share in the proceeds. ..." (Maj. Op. at ¶ 16). I also agree that the case should be remanded for the chancery court to clarify why its conclusion changed from the finding that quantum meruit was met under the facts of this case to the finding that quantum meruit was not met, as no contradictory evidence was entered at the hearing after the initial remand. I write separately as I believe the common-fund doctrine should be applied by the chancery court.

¶ 23. On remand, it should be determined whether or not Kihyet and Castigliola are entitled to an award of attorneys' fees under the common-fund doctrine. "The common-fund doctrine 'rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant's expense.' " Yerby v. United Healthcare Ins. Co. , 846 So.2d 179, 189-90 (Miss. 2002) (quoting Boeing Co. v. Van Gemert , 444 U.S. 472, 478, 100 S.Ct. 745, 62 L.Ed. 2d 676 (1980) (citing Mills v. Elec. Auto-Lite Co. , 396 U.S. 375, 392, 90 S.Ct. 616, 24 L.Ed. 2d 593 (1970) ) ).

¶ 24. It is undisputed that, but for the efforts of Kihyet and Castigliola, the parties would not have recovered the $250,000 settlement. Further, Kihyet represented Cecilia Eubanks and the Estate of Dane Richard Eubanks, per the Order Approving Contract for Legal Fees. Also, any adverse hours were after the settlement had been obtained. It also does not appear from the record that Kihyet and Castigliola requested any recovery for time spent after the settlement. Once Kihyet and Castigliola obtained the settlement and tendered it to the chancery court, they were due an award of attorneys' fees under the common-fund doctrine. See Franklin v. Franklin ex rel. Phillips , 858 So.2d 110, 123 (Miss. 2003) ("Precedent has established that an attorney who does work that enhances the value of a settlement should be paid for his efforts ....").

¶ 25. The issue of Kihyet's and Castigliola's subsequent, possible conflicts of interest are tangential to their recovery of the fee. I would not condone any alleged, potential conflict of interest. Neither should the chancery court award any fee for time spent adverse to Allison and David Jr. However, as those conflicts are subsequent to the settlement, they are a dispute between Allison and David Jr. and Kihyet and Castigliola which should be settled in a different forum if Allison and David Jr. still are aggrieved after the chancery court's determination of a reasonable fee. The reasonableness of the fee, under this Court's precedent, is an issue to be determined by the chancery court. See Pannell v. Guess , 671 So.2d 1310, 1315 (Miss. 1996) (remanding to determine reasonableness of fee).

¶ 26. I share the majority's concern that quantum meruit appears to be met by the evidence in the record, yet the chancery court found that quantum meruit was not met. As discussed by the majority, each element of quantum meruit appears to be supported from a review of the cold record.

¶ 27. For the foregoing reasons, I agree with the majority's decision to remand the case for further proceedings, reversing the chancery court's determination that it was without authority to award attorney's fees from Allison's and David Jr.'s portion of the second settlement. Further, I would instruct the chancery court to consider an award of attorneys' fees under the common-fund doctrine and agree with the majority that the chancery court should clarify why its decision as to quantum meruit changed without any intervening, contradictory evidence.

RANDOLPH, P.J., JOINS THIS OPINION.

COLEMAN, JUSTICE, DISSENTING:

¶ 28. If the Mississippi Supreme Court evenly splits the votes of its participating members in a case and issues a decision in which the votes are, as they were in the instant case, four-to-four on an issue, then the decision of the trial court - in the case of the previous remand of the case sub judice the Court of Appeals - stands. Other than serving as a functional affirmance as described above, any opinion issued by an evenly divided court has no value and places no mandate on the trial court during remand. Accordingly, the only mandate from an appellate court operational when the instant case was remanded following appeal was that issued by the Court of Appeals in its opinion. See Estate of Eubanks v. Eubanks , 197 So.3d 878 (Miss. Ct. App. 2014) ( Eubanks I ). Contrary to the position taken by the majority, the chancellor did not violate the Court of Appeals' mandate when it reversed course and found that the elements of quantum meruit were not met. Moreover, given the standard of review, the chancellor did not err in refusing to award a quantum meruit payment to attorneys who actively worked against the interests of the would-be payees. Accordingly, and with respect, I dissent.

I. The chancellor violated no mandate.

¶ 29. As the majority documents, after we granted certiorari to review the Court of Appeals' opinion in Eubanks I , we split evenly on the issue of whether the facts of the case warranted a quantum meruit award. As detailed in our certiorari opinion, the Court of Appeals' opinion on the issue therefore controlled. Estate of Eubanks v. Eubanks , 197 So.3d 861, 871 (¶ 52) (Miss. 2015) ( Eubanks II ) . After detailing several factual shortcomings in the record, the Court of Appeals wrote, "Such a basis for compensation falls short of the showing required by quantum meruit recovery , particularly against unrepresented minors, where the record shows no notice, informed consent, or acquiescence on behalf of David Jr. and Allison." Eubanks I , 197 So.3d at 893 (¶ 45) (emphasis added). Later, the Court directed the chancellor, "We remand for further proceedings for the chancellor to determine entitlement to the claimed fee and to provide express findings in support thereof." Id. at 893 (¶ 46). The Court of Appeals' majority did not require the detailed factual findings the majority faults the chancellor for not providing, unless the chancellor awarded fees. The chancellor did not do so and, therefore, did not violate the applicable mandate.

II. The chancellor did not err when, upon remand, she held that the attorneys who acted in direct conflict to the interests of the minors were not entitled to quantum meruit recovery.

¶ 30. The Court "will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Estate of Johnson v. Johnson , 237 So.3d 698, 704 (¶ 14) (Miss. 2017) (citing Sanderson v. Sanderson , 824 So.2d 623, 625-26 (Miss. 2002) ).

¶ 31. In her July 2015 Judgment, the chancellor acknowledged the above-discussed directive from the Court of Appeals, writing, "[T]he Court of Appeals instructed that in further proceedings the chancellor should determine entitlement to the claimed fee and to provide express findings in support thereof." She then found that "insufficient evidence was offered to show that the quantum meruit factors have been met." Although the majority and I disagree regarding whether the Court of Appeals' opinion required the chancellor to beef up her findings of fact should she find a quantum meruit award inappropriate, we have sufficient facts in the record to affirm her decision. I see no point in remanding the case to the chancellor when the record before us shows that she correctly decided the issue.

¶ 32. When we considered the instant matter after granting certiorari before, I joined the four members of the Court who would have held on appeal that the elements of quantum meruit were not met. See Eubanks II , 197 So.3d at 870-871 (¶¶ 50-52). Specifically, we would have held that the attorneys could not prove the second element, that they rendered valuable services on behalf of the minors they sought to charge. Id. at 871 (¶ 50). On behalf of the four, Presiding Justice Dickinson wrote as follows:

Here, the second element clearly was not satisfied. Castigliola and Kiyhet were retained to represent the estate and engaged in settlement negotiations on behalf of the estate. What is more, Castigliola argued that he never represented David Jr. and Allison; he actively sought to preclude their recovery altogether of any portion of the settlements; he attempted to have the chancellor change her prior adjudication of beneficiaries and exclude David Jr. and Allison; and he worked to reduce the portion they finally obtained.

Id. at 871 (¶ 51). It remains true that the conflict of interest between the attorneys and the minors created by the attorneys' active litigation against the minors' interest and Castigliola's admission that he never represented the minors conclusively demonstrate that the services rendered by the attorneys were not on the minors' behalf. The doctrine of quantum meruit

applies to situations where there is no legal contract but where the person sought to be charged is in possession of money or property which in good conscience and justice he should not retain but should deliver to another, the courts imposing a duty to refund the money or the use value of the property to the person to whom in good conscience it ought to belong.

In re Estate of Fitzner , 881 So.2d 164, 174 (¶ 25) (Miss. 2003) (quoting Hans v. Hans , 482 So.2d 1117, 1122 (Miss. 1986) ). The Court should be loathe to hold that an attorney, whose actions toward a party in litigation would have constituted a serious ethical breach had the party in question actually been a client, should "in good conscience and justice" be paid by said party.

      David had little to no contact with Dane, and, during these lawsuits, his parental rights were terminated and he was not a party to any of the litigation.

      This settlement was for bodily injury to the decedent and is not subject to this appeal. However, the subsequent federal court litigation and settlement at issue in this appeal clearly flow from the $100,000 settlement and the allegations that it does not fully compensate for the damages incurred.

      It is undisputed that David Jr. never even met Dane, as he had not yet been born when Dane passed away. It appears that Allison, who was one year old at the time of Dane's death and who lived with the same father who was found by the chancery court to not have been involved in Dane's life, had little-to-no involvement with Dane. Yet, these children, through their mother, seek monetary compensation for Dane's death.

      The counterclaim was filed one month after Huber joined the chancery court case, and several months after all parties learned of the existence of Allison and David Jr.

      In Huber's Response to the Administratrix's Petition for Approval and Disbursement of Settlement Proceeds Arising from the Death of Dane Eubanks, Huber "respectfully ask[ed] that the Court approve the settlements associated with the death of Dane Eubanks."

      Even Huber admits in her brief that it was after obtaining the settlement that Kiyhet and Castigliola took positions adverse to Allison and David Jr.

      Indeed, in the federal court case, Allstate filed a suit against the Estate and the Cecilia, and Kiyhet and Castigliola defended the suit and counterclaimed. Allison and David Jr. did not endeavor to spend the money to help defend the affirmative suit by Allstate against the Estate.

      Justice Coleman correctly notes that this Court's previous remand was not binding on the chancellor, as the decision was a four-to-four split without precedential value. (Dis. Op. at ¶ 27).

      I recognize that the common-fund doctrine has had limited application outside of trust estates, class actions, and insurance subrogation proceeds. See Johnny Parker, The Common Fund Doctrine: Coming of Age in the Law of Insurance Subrogation , 31 Ind. L. Rev. 313, 322, 338 (1998) (defining the common-fund doctrine and concluding that "there is no logical reason to limit the doctrine to class actions and trust cases"). I can see no reason not to apply the doctrine here, as it need not be limited where it can accomplish its equitable purpose. Sprague v. Ticonic Nat'l Bank , 307 U.S. 161, 167, 59 S.Ct. 777, 780, 83 L.Ed. 1184 (1939) ("[W]hen such a fund is for all practical purposes created for the benefit of others, the formalities of the litigation-the absence of an avowed class suit or the creation of a fund ... -hardly touch the power of equity in doing justice as between a party and the beneficiaries of his litigation."). See also Whigham v. Estate of Whigham , 781 So.2d 969, 971-72 (Ala. Civ. App. 2000) (applying the common-fund doctrine in the estate context).

      As noted by the majority, Huber admits that Castigliola and Kihyet took positions adverse to Allison and David Jr. after obtaining the settlement in federal court.

      I agree with Justice King's majority, certiorari opinion "that the Court of Appeals may have overstated the amount of attorneys' fees that should be deducted." Estate of Eubanks v. Eubanks , 197 So.3d 861, 878 (Miss. 2015). The record demonstrates that the number of hours spent by either attorney adverse to Allison's and David Jr.'s interests were minimal. On remand, Castigliola testified that eight hours of his time spent during the settlement proceedings-to the extent that it could be considered adverse-could be deducted from the ultimate calculation of attorneys' fees from Allison and David Jr. Kihyet testified that only ten hours of his time were spent adverse to the minors. Indeed, the time sheets that were entered in evidence in 2011 were labeled "Attorney Time Pre Aug 20 2010." The time sheets do not reflect any entries for time spent after mid-August. The motion to clarify in federal court, a filing agreed upon as adverse to Allison and David Jr., was not filed until more than two months later on November 23, 2010.

      The Court of Appeals' treatment of Pannell is unpersuasive. Estate of Eubanks v. Eubanks , 197 So.3d 878, 890 (Miss. Ct. App. 2014). While the administratrix in Pannell may have pursued no claims adverse to the unrepresented heirs, the attorney who effectuated the settlement did pursue a claim directly adverse to the unrepresented heirs. Pannell , 671 So.2d at 1312. This Court still allowed him later to prove entitlement to a fee from those same heirs, as they derived a benefit from the common settlement and had acquiesced in the amount. Id . at 1315. Here, Allison and David Jr. certainly benefitted from the settlement and voluntarily had recovered from the first wrongful-death settlement, evidencing some knowledge of and acquiescence in the proceedings.

      I reserve decision on whether or not the chancery court's determination that quantum meruit was not met-without detailed findings of fact for appellate review-was an abuse of discretion, as the common-fund doctrine would be sufficient on remand.


author: IRVING, P.J., FOR THE COURT:

text:
    Timothy Scott BEASLEY a/k/a Timothy S. Beasley a/k/a Timothy Beasley, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00685-COA
    Court of Appeals of Mississippi.
    October 31, 2017 Rehearing Denied May 1, 2018 Writ of Certiorari Denied August 23, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: BENJAMIN ALLEN SUBER
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN
    EN BANC.
   IRVING, P.J., FOR THE COURT:

¶ 1. Following his convictions for burglary of a dwelling, aggravated stalking, and aggravated assault, Timothy Beasley appeals the judgment of the Harrison County Circuit Court denying his motion for a new trial, arguing that the jury's verdict is against the overwhelming weight of the evidence. In a separate pro se brief, Beasley alleges ineffective assistance of trial counsel.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. This appeal stems from an incident that occurred on May 9, 2015, in Gulfport, Mississippi. Lori Ehlers, Beasley's girlfriend of ten to fifteen years, had an order of protection against him that included her home, her person, and both of her parents. While at dinner that night, Lori's mom, Elaine Ehlers, received text messages and a voice mail from Beasley stating that he was headed to Lori's home to "put down" a cat that the two had owned together. After receiving those messages, Lori, Elaine, and Vernon Ehlers, Lori's father, returned to Lori's home. Upon arriving, they did not notice anything out of the ordinary and proceeded inside. Lori had video surveillance at her home, and there is video footage of the three arriving. According to all three, Beasley jumped out of either the closet or the hallway with a knife in one hand and a pipe wrench in his other hand and stated something to the effect of, "now I can get all three of you."

¶ 4. Vernon testified that, fearing for his family's safety, he hit Beasley over the head with a cat's scratching post as Beasley pushed Elaine to the ground. A struggle then ensued, and Beasley lost control of the knife, but was able to strike Vernon several times with the pipe wrench. Vernon stated that Elaine was able to get free and escaped through the front door but Beasley followed her. The surveillance footage showed Elaine leaving the property going in the direction of the neighbor's house, and Beasley exited shortly after, armed with a hammer. Vernon was then shown on the video going outside, but then he retreated back inside as Beasley came back to the home. Beasley can then be seen breaking the glass of the front door with the hammer. Afterward, Beasley left the scene, and the police arrived.

¶ 5. According to Officer Bradley Sumrall of the Gulfport Police Department, Vernon's head was soaked with blood, and he had sustained several injuries that required medical treatment. Beasley was arrested the following day.

¶ 6. In Beasley's taped interview with police, he stated that he was just trying to talk to the Ehlers in order to get some money that was owed to him, and to retrieve some of his personal property from Lori's home. He stated that he simply wanted to talk, and Vernon hit him first, which sparked the fight. He also stated that, because of the protection order against him and Lori's changing her cell phone number, the two communicated by exchanging messages via a storage unit and Lori's mailbox. During the interview, Beasley admitted that he entered Lori's home through an unlocked window and that he was armed with a pipe wrench. Lori testified that Beasley did not have a key to her home and that she did not give him permission to enter.

¶ 7. Beasley was indicted for burglary of a dwelling, aggravated stalking, and aggravated assault. Beasley opted for a trial. During the trial, Lori, Vernon, Elaine, Officer Sumrall, and Investigator Alvin Kingston testified for the State. At the trial's conclusion, Beasley was convicted on all counts and sentenced as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2015) to twenty years for burglary, five years for aggravated stalking, and fifteen years for aggravated assault, with each sentence to be served concurrently in the custody of the Mississippi Department of Corrections (MDOC), without the possibility of probation or parole.

¶ 8. Beasley filed a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict (JNOV), which was denied. This appeal followed.

DISCUSSION

I. Sufficiency and Weight of the Evidence

¶ 9. In challenging his convictions, Beasley erroneously combines arguments regarding the overwhelming weight of the evidence, his sole issue on appeal, with arguments that address the legal sufficiency of the evidence. As such, we address both arguments in this opinion. The standards of review when addressing weight of the evidence and legal sufficiency of the evidence are succinctly addressed by the Mississippi Supreme Court in Bush v. State , 895 So.2d 836 (Miss. 2005), abrogated in part on other grounds by Little v. State , 2014-CT-01505-SCT, 233 So.3d 288, 2017 WL 4546740 (Miss. Oct. 12, 2017). In addressing the overwhelming weight of the evidence, the court stated:

When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice .... [T]he evidence should be weighed in the light most favorable to the verdict.

Id . at 844 (¶ 18) (internal citations and quotation marks omitted) (emphasis added). In addressing the sufficiency of the evidence, the court stated that:

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

Id . at 843 (¶ 16) (emphasis added).

¶ 10. According to Beasley, the "State failed to establish beyond a reasonable doubt that [he] committed the crimes of [b]urglary, [a]ggravated [s]talking[,] and [a]ggravated [a]ssault." He also argues that based on the evidence presented at trial, the court erred in denying his motion for a new trial. The State counters that the trial court did not err in denying Beasley's motion for a new trial, as the jury's verdict was simply not against the overwhelming weight of the evidence, and the evidence was sufficient to support his convictions.

A. Burglary and Aggravated Stalking

¶ 11. Regarding his burglary and aggravated-stalking convictions, Beasley alleges that he should not have been convicted of those crimes because he and Lori were in a serious relationship; he still had personal property at her house, and he and Lori were in continuous contact during the relevant time period. Consequently, he asserts that the evidence was insufficient to establish beyond a reasonable doubt that he committed the crimes and that the jury's verdict was against the overwhelming weight of the evidence.

¶ 12. Count I of the indictment, charging Beasley with burglary, provided in relevant part that Beasley "did unlawfully, willfully, feloniously and burglariously break and enter the dwelling house of Lori Ehlers ... with the intent to violate Order of Protection, Domestic Abuse Protection Order ...."

¶ 13. Mississippi Code Annotated section 97-17-23(1) (Rev. 2014) provides, in part:

Every person who shall be convicted of breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with intent to commit some crime therein, shall be punished by commitment to the custody of the Department of Corrections for not less than three (3) years nor more than twenty-five (25) years.

¶ 14. The State notes that "the elements of burglary of a dwelling [are]: (1) the unlawful breaking and entering of a dwelling; and (2) the intent to commit some crime when entry is attained." Cavitt v. State , 159 So.3d 1199, 1202 (¶ 10) (Miss. Ct. App. 2015). During Beasley's recorded interview with Investigator Kingston, he admitted that he entered Lori's house through an unlocked rear window, armed with a pipe wrench. He also admitted that he knew the order of protection-forbidding him from going to Lori's home-was still in place. Lori testified that she never told Beasley that he could enter the home, that she had all the locks changed, and that she had not given Beasley a key. The State argues that the evidence at trial clearly supported the verdict and was not so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. We agree.

¶ 15. Likewise, the State argues that the evidence presented supported Beasley's aggravated-stalking conviction.

Count II of the indictment states, in relevant part, that Beasley:

did willfully, unlawfully, feloniously and purposely engage in a course of conduct directed at Lori ... knowing that the conduct would cause [her] ... to fear for her own safety, or to fear damage or destruction of her property, when he ... had previously been convicted of Stalking within seven (7) years of the offense charged herein; to-wit:
(1) In the Municipal Court of Gulfport, Mississippi, he ... was convicted of Stalking, on July 17, 2014, said offense having occurred on May 5, 2014, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.

¶ 16. Mississippi Code Annotated section 97-3-107(1)(a) (Rev. 2014) provides, in part:

Any person who purposefully engages in a course of conduct directed at a specific person, or who makes a credible threat, and who knows or should know that the conduct would cause a reasonable person to fear for his or her own safety, to fear for the safety of another person, or to fear damage or destruction of his or her property, is guilty of the crime of stalking.

¶ 17. Section 97-3-107(2)(a) states:

A person who commits acts that would constitute the crime of stalking as defined in this section is guilty of the crime of aggravated stalking if any of the following circumstances exist:
(i) At least one (1) of the actions constituting the offense involved the use or display of a deadly weapon with the intent to place the victim of the stalking in reasonable fear of death or great bodily injury to self or a third person; [or]
(ii) Within the past seven (7) years, the perpetrator has been previously convicted of stalking or aggravated stalking under this section or a substantially similar law of another state, political subdivision of another state, of the United States, or of a federally recognized Indian tribe, whether against the same or another victim[.]

¶ 18. As stated, Elaine testified to receiving the text messages and a voice message from Beasley on the night of the incident, indicating that he was going to "put down" Lori's cat. The State asserts that the text messages and voice message clearly demonstrate a course of conduct that would cause a reasonable person to fear for his or her own safety, the safety of another person, or damage or destruction of his or her property. In addition, based on the testimony at trial, the State asserts that Beasley broke into Lori's house, jumped out of a closet holding a pipe wrench and a knife, a deadly weapon, and shouted "now I can get all three of you." According to Lori, Beasley terrified her and made her fear that he would hurt her and/or her parents. Finally, the State introduced an abstract at trial evidencing that Beasley had previously been convicted of stalking on July 17, 2014. Based on the evidence presented at trial, the jury's verdict was not against the overwhelming weight of the evidence, and the evidence supported his conviction.

B. Aggravated Assault

¶ 19. Turning now to Beasley's aggravated-assault conviction, he contends that he should not have been convicted of aggravated assault because Vernon testified that he hit Beasley first, as soon as he came out of the closet. In addition, he contends that Vernon was not seriously injured, as he did not need stitches or staples and initially refused medical attention.

¶ 20. The State responds that the evidence presented was more than adequate to convict Beasley of aggravated assault, as substantiated by the indictment and the elements of the crime itself.

¶ 21. Count III of the indictment states, in relevant part, that Beasley:

did unlawfully, feloniously, willfully, purposefully[,] and knowingly attempt to cause bodily injury to ... Vernon ... by a means likely to produce death or serious bodily harm, to-wit: by striking ... Vernon ... with a pipe wrench, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.

¶ 22. Mississippi Code Annotated section 97-3-7(2)(a) (Rev. 2014) provides, in relevant part:

A person is guilty of aggravated assault if he (i) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; (ii) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm[.]

¶ 23. The State notes Vernon's testimony that Beasley jumped out of the closet with a butcher knife in one hand and a pipe wrench in the other hand. In addition, Vernon, Lori, and Elaine all testified that Beasley stated some form of, "now I can get all three of you." According to Vernon, Beasley then lunged toward Elaine and pushed her down. At that point, Vernon struck Beasley with a cat's scratching post, causing him to drop the knife. Beasley then proceeded to strike Vernon in the head with the wrench. Thus, the State is correct in its assertion that the evidence at trial supported Beasley's conviction. Although Beasley argues that the State failed to establish that serious bodily injury occurred, there was testimony demonstrating that serious bodily injury did in fact occur. For instance, Officer Sumrall testified that Vernon had blood coming from his head, soaking his entire scalp. Likewise, a photograph introduced into evidence depicts a large gash on Vernon's head, and Vernon testified that his face was covered with blood and that he went to the hospital and underwent X-rays and an MRI.

¶ 24. Additionally, the State argues that it does not matter whether Vernon suffered serious bodily injury, as Beasley clearly attempted to assault him, and the means he used were likely to produce serious injury. As this Court has held, "[t]he crime of aggravated assault includes attempt as one of the elements of the crime." Stringer v. State , 862 So.2d 566, 567 (¶ 6) (Miss. Ct. App. 2004). And, as this Court has further held, the State is not required to prove that the victim suffered serious bodily injury; rather, "the proper inquiry is whether the bodily injury was caused with other means likely to produce serious harm." Riggs v. State , 967 So.2d 650, 653 (¶ 13) (Miss. Ct. App. 2007). Consequently, this issue is without merit, as the evidence supported Beasley's conviction for aggravated assault, and the jury's verdict was not against the overwhelming weight of the evidence.

¶ 25. Here, the trial court did not err in denying Beasley's motion for a new trial, as the jury's verdict was not against the overwhelming weight of the evidence, warranting an invasion of the jury's province. We also find that the evidence was legally sufficient to support each of Beasley's convictions. Therefore, we affirm the circuit court's judgment.

II. Ineffective Assistance of Counsel

¶ 26. Following oral argument, Beasley, proceeding pro se and without permission of the Court, filed a motion-which we treat as a supplemental brief-alleging that his trial counsel was ineffective. Since the briefing-schedule deadlines had passed when Beasley filed his supplemental brief, it is not properly before the Court for consideration. Nevertheless, the State, without direction from this Court, responded to Beasley's supplemental brief. The State argues that the issue presented in Beasley's supplemental brief is both inappropriate for review on direct appeal and without merit. We agree with the State that the issue is inappropriate for review in this direct appeal, and we decline to consider the merits of it, except to note the relevant law and to make a few observations as to what the record shows.

A claim of ineffective assistance of counsel on direct appeal should be addressed only when (1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge. Therefore, ineffective assistance claims are more appropriately brought during post-conviction proceedings because, during direct appeals, the Court is limited to the trial court record in its review of the claim, and there may be instances in which insufficient evidence exists within the record to address the claim adequately.

Johnson v. State , 196 So.3d 973, 975 (¶ 7) (Miss. Ct. App. 2015) (internal citation and quotations omitted).

¶ 27. In support of his ineffective-assistance-of-counsel claim, Beasley makes several allegations which, based on our caselaw, appear to fall squarely within the ambit of trial strategy. He also claims that his trial counsel (1) was not prepared for trial, (2) was unreasonably inaccessible, (3) was only interested in talking to him about a plea and acted more like a prosecutor than his defense counsel, (4) was not interested in the evidence that Beasley had to present, and (5) failed to obtain discovery and discuss it with him. Further, Beasley makes some claims that are clearly belied by the record.

¶ 28. The parties have not stipulated that the record is adequate to address Beasley's claim that his trial counsel was ineffective. In the absence of such stipulation, we have reviewed the record, and based on the application of the standard set forth in Strickland , we find that the record does not affirmatively show ineffective assistance of counsel of constitutional dimensions. "Where the record cannot support an ineffective-assistance-of-counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant's right to argue the same issue through a petition for post-conviction relief." Johnson , 196 So.3d at 975 (¶ 8). Therefore, we deny relief without prejudice to Beasley's right to petition the Mississippi Supreme Court for permission to proceed in the circuit court with a motion for post-conviction relief, addressing the issue of ineffective assistance of counsel.

¶ 29. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. TINDELL, J., NOT PARTICIPATING.

      Beasley filed his brief without permission from this Court.

      Lori's, Vernon's, and Elaine's exact wording differed as to their recollection of what Beasley said and the exact location from which he appeared.

      Beasley also made a call from jail and told an unidentified person that he gained entry into Lori's home through a window in the back of her house.

      "The benchmark for judging any claim of ineffectiveness of counsel must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. The test is two pronged: The defendant must demonstrate that his counsel's performance was deficient, and that the deficiency prejudiced the defense of the case." Wilcher v. State , 863 So.2d 719, 733 (¶ 30) (Miss. 2003) (citing Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ).


author: FAIR, J., FOR THE COURT:

text:
    Jerold Wayne SMITH a/k/a Jerold Smith a/k/a Gerald Wayne Smith a/k/a Jerold W. Smith, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00259-COA
    Court of Appeals of Mississippi.
    February 6, 2018 Rehearing Denied May 29, 2018 Writ of Certiorari Denied August 23, 2018
    ATTORNEY FOR APPELLANT: JEROLD WAYNE SMITH (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE
    BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. In 1986, Jerold Wayne Smith pled guilty to armed robbery. The court sentenced him to fifteen years in the custody of the Mississippi Department of Corrections, to be served either concurrently or consecutively with three prior sentences. In 2016, Smith filed a petition for post-conviction relief (PCR), claiming his fifteen-year sentence had expired. The circuit court dismissed the petition, finding it without merit. In addition, "since the only issue that overcomes the time[-]bar is without merit," the court held the petition to be also "untimely filed outside the applicable statute of limitations." Finding no error, we affirm.

STANDARD OF REVIEW

¶ 2. The circuit court may summarily dismiss a PCR motion without an evidentiary hearing "[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief." Miss. Code Ann. § 99-39-11(2) (Rev. 2015). To succeed on appeal, the petitioner must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State , 731 So.2d 1120, 1122 (¶ 9) (Miss. 1999).

¶ 3. Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Id.

DISCUSSION

¶ 4. Mississippi Code Annotated section 99-39-5(2) (Rev. 2015) provides that a petitioner who pleads guilty has three years from the judgment of conviction to file his PCR motion unless his claim fits within one of the specified exemptions; subsection 5(2)(b) states that the three-year limit is excepted in "cases in which the petitioner claims that his sentence has expired." Miss. Code Ann. § 99-39-5(2)(b).

¶ 5. Smith claims that his fifteen-year sentence is expired and he should be granted an exception. However, in its sentencing order, the court directed that Smith's fifteen-year sentence be served concurrently with a prior sentence in Jackson County and another prior sentence in Harrison County, but that the sentence in question be served consecutively to a life sentence in Harrison County. Because Smith's fifteen-year sentence is being served consecutively to a prior life sentence, he cannot successfully argue that his sentence is expired. Consequently, his motion is time-barred.

¶ 6. We acknowledge that "[e]rrors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post-Conviction Collateral Relief Act]." Williams v. State , 158 So.3d 1171, 1173 (¶ 4) (Miss. Ct. App. 2014) (citation omitted). But "mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar." Id. After review of the record, we find Smith's claims are only "mere assertions" and nothing more. Thus, we affirm the circuit court's judgment that Smith's claim is time-barred and without merit.

¶ 7. AFFIRMED.

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