text:
    Alice VANLANDINGHAM, Appellant v. Gregory PATTON, M.D. and Oxford Obstetrics and Gynecology Associates, P.A., Appellees.
    No. 2008-CA-01994-COA.
    Court of Appeals of Mississippi.
    June 1, 2010.

      Alan D. Lancaster, Grenada, John M. Montgomery, attorneys for appellant.
    Clinton M. Guenther, Tommie G. Williams, Greenwood, attorneys for appel-lees.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   KING, C.J.,

for the Court:

¶ 1. Alice Vanlandingham filed a complaint alleging medical malpractice against Dr. Gregory Patton and Oxford Obstetrics and Gynecology (Oxford OB/GYN). The matter proceeded to trial, and the jury returned a verdict in favor of Dr. Patton and Oxford OB/GYN. After the denial of her post-trial motions, Vanlandingham filed this appeal, raising two issues for this Court’s review:

I. Whether the trial court erred by not excusing juror 27 and juror 26 for cause; and
II. Whether the trial court erred by admitting the testimony of Dr. Steven Stain.

Finding no error, we affirm the jury’s verdict.

FACTS AND PROCEDURAL HISTORY

¶ 2. Vanlandingham suffered from chronic pelvic pain. In early 2003, she was referred to Dr. Patton, an OB/GYN affiliated with Oxford OB/GYN, for treatment. The treatment proved unsuccessful in alleviating Vanlandingham’s pelvic pain. Thus, on June 23, 2003, Vanlandingham elected to have surgery to remove her left ovary in hopes that it would alleviate her pain.

¶ 3. Dr. Patton performed an exploratory laparotomy, a bilateral salpingo-oopho-rectomy, and lysis of adhesions on Van-landingham. During the surgery, Dr. Patton found deep adhesions caused by prior surgeries on Vanlandingham’s ovary and the wall of her sigmoid colon, which caused the two organs to stick together. Dr. Patton removed these adhesions, and this removal caused abrasions on the outer wall of Vanlandingham’s colon.

¶ 4. Vanlandingham remained in the hospital for several days after her surgery. She was discharged on June 27, 2003. That same night, Vanlandingham became very ill and experienced continuing pain in her pelvic area. Vanlandingham returned to the hospital and sought treatment in the emergency room. An examination revealed that Vanlandingham’s colon had perforated, causing peritonitis and sepsis.

¶ 5. On August 30, 2004, Vanlandingham filed a lawsuit against Dr. Patton and Oxford OB/GYN, alleging medical malpractice. Specifically, Vanlandingham argued that Dr. Patton erred by not placing sutures, or stitches, at the area of the injury, which she claims would have prevented the perforation of her colon. She also claimed that Dr. Patton admitted to her family that he “nicked” her colon during surgery and that the resulting perforation was his fault.

I. Voir Dire

¶ 6. The trial commenced in August 2008. During voir dire, Vanlandingham challenged Thomas Guest, juror 27, and Lisa Daniels, juror 26, for cause. Guest stated that he was a realtor and that he had done business with Dr. Glenn Hunt, who is Dr. Patton’s business partner. Guest felt as if it would cost him some business if he ruled against Dr. Patton. Nevertheless, Guest pledged that he could be fair and impartial in spite of this.

¶ 7. Daniels stated that she was employed part-time at an internal medicine clinic that referred patients to Dr. Patton. Daniels stated that Dr. Patton also referred patients to her employer. However, Daniels stated that she had no direct contact with Dr. Patton or his clients. Daniels also pledged that she could be fair and impartial in her decision-making.

¶ 8. The trial court denied Vanlanding-ham’s challenges for cause against both jurors. Vanlandingham successfully exercised a peremptory strike against Guest. Thus, he did not serve on the jury. However, Vanlandingham did not exercise a peremptory strike against Daniels, and she served on the jury.

II. Expert Testimony

A. Dr. Earnest Kleier

¶ 9. During the trial, Vanlandingham produced one expert witness — Dr. Earnest Kleier, a general surgeon. Dr. Kleier agreed that the surgery Dr. Patton performed was appropriate treatment for Vanlandingham’s chronic pelvic pain. However, Dr. Kleier opined that Dr. Patton fell below the standard of care because there was an injury to the sigmoid colon that he did riot repair, which caused the colon to perforate.

¶ 10. Dr. Kleier testified that the colon has three layers: the serosa, which is the outermost layer; the muscularis, which is the muscular wall of the tract; and the mucosa, which is the innermost layer. Dr. Kleier testified that generally, the standard of care does not require a surgeon to repair an abrasion to the serosa. However, the standard of care does require a physician to repair an injury that reached the muscularis or mucosa.

¶ 11. Based on the extent of Vanland-ingham’s injury, Dr. Kleier opined that Dr. Patton must have lacerated the muscularis of her colon during surgery, causing a partial thickness injury. Dr. Kleier stated that this injury caused the colon to perforate a few days later. Dr. Kleier testified that Dr. Patton should have inspected the area before completing the surgery, and his operative notes failed to denote such. If Dr. Patton had examined the area, Dr. Kleier opined that he would have seen the injury, and the standard of care would have required him to repair it. Basing his opinion on a reasonable medical probability, Dr. Kleier stated that Vanlandingham’s colon would not have perforated if the injury had been repaired.

B. Dr. Steven Stain

1112. For the defense, Dr. Patton testified as to his treatment of Vanlandingham. Additionally, Dr. Patton and Oxford OB/ GYN produced two other expert witnesses — (1) Dr. Steven Stain, an expert in surgery, including abdominal surgery and post-operative care of patients, and (2) Dr. Mark Reed, an expert in obstetrics and gynecology and in the subspecialty of gynecological oncology and surgery.

¶ 13. Dr. Stain agreed to state his medical opinions within a reasonable degree of medical certainty or probability. During his direct examination, Dr. Stain testified that it is unusual for him to state in his operative notes that he inspected the colon unless he was treating a colon injury. He testified that it is usual to see serosal injuries when dissecting an ovary from the colon wall. Dr. Stain testified that repairing an injury is a judgment call made by the physician. However, based on standard practice, Dr. Stain testified that a simple serosal injury need not be repaired. Conversely, he stated that an injury that results in out pouching, which is where the mucosa sticks through the defect in the serosa, should be repaired.

¶ 14. Dr. Stain testified that it would be hard for Dr. Patton to miss such an injury because the surgery was conducted in a very small area. Based on his review of Dr. Patton’s operative notes, Dr. Stain testified that there was no bleeding, and there was no mention of out pouching. Thus, applying the standard of care, Dr. Stain testified that he did not see anything in the operative notes that would have required further surgical intervention. Based on a reasonable degree of medical certainty, Dr. Stain opined that the injury to the colon was a serosal injury that later progressed to a perforation. Thus, Dr. Stain testified that Dr. Patton complied with the standard of care when he did not repair the serosal abrasion.

¶ 15. At one point during cross-examination, Dr. Stain was asked whether the standard of care required a surgeon to repair a serosal injury that had out pouching. Dr. Stain responded that he did not know what the standard of care would require in that instance, but he explained that he generally repairs injuries that result in out pouching. Dr. Stain was also questioned about a statement he made in his 2006 deposition. In 2006, Dr. Stain gave four possibilities regarding what could have caused Vanlandingham’s injury. At trial, he only offered one of those possibilities — that the cause of her perforated colon was a serosal injury. Dr. Stain explained that in 2006, he could not state with fifty-one-percent certainty which situation occurred, which is the definition opposing counsel gave him. However, at the time of trial, Dr. Stain stated that he had a better understanding of the definition of “reasonable medical certainty,” and his opinion was based on what was the most probable cause of Vanlandingham’s injury.

C. Dr. Mark Reed

¶ 16. Based on Dr. Patton’s operative notes, Dr. Reed opined that Dr. Patton made thoughtful decisions regarding his approach to Vanlandingham’s surgery, and Dr. Patton complied with the standard of care. Dr. Reed testified that as a general rule, he does not say in his operative notes that he inspected the colon, and this does not violate the standard of care. Dr. Reed also stated that the area of the surgery is so small that the surgeon cannot help but inspect the area.

¶ 17. Dr. Reed testified that if any organ sustains significant damage, there will be bleeding. Based on Dr. Patton’s operative notes, Dr. Reed testified that Dr. Patton irrigated the area, and there was no documentation of unusual bleeding. The operative notes also showed that Dr. Patton lined Vanlandingham’s organs with in-terceed, a tissue-like fabric used to separate organs and prevent the formation of adhesions. Dr. Reed testified that the in-terceed would have dissolved if there were any fluid between her organs.

¶ 18. Dr. Reed also testified that based on the standard of care, a serosal abrasion need not be repaired. However, he testified that injuries involving the muscularis or mucosa should be repaired. Dr. Reed testified that if Dr. Patton had injured the muscularis, the wound would have pouched out, and Dr. Patton would have seen it. Dr. Reed also testified that if a patient has sustained such an injury, peritonitis would have onset within twenty-four to forty-eight hours. Based on a reasonable degree of medical probability, Dr. Reed testified that there was no evidence of a significant injury to the colon that would have required repair.

D. Dr. Gregory Patton

¶ 19. Dr. Patton admitted that while removing Vanlandingham’s adhesions, there was some abrasion caused to her colon wall. Dr. Patton testified that it was impossible to remove dense adhesions without some abrasion occurring. He explained that he did not state in his operative notes that the colon was abraded because it was general knowledge among surgeons that the removal of adhesions may cause abrasion.

¶ 20. Dr. Patton agreed that Vanland-ingham’s peritonitis developed from a perforation in her colon. However, Dr. Patton testified that Vanlandingham’s injury was a simple abrasion, and typically, superficial abrasions heal and are not prone to perforate. Dr. Patton testified that he carefully inspected the area and irrigated the area three times. He stated that he did not see any out pouching, bleeding, or leakage from the colon.

¶ 21. Dr. Patton testified that if Van-landingham had sustained such an injury, they would have seen signs of peritonitis within twenty-four hours of the injury. Dr. Patton testified that Vanlandingham was in the hospital for five days following her surgery, and there was no evidence of peritonitis prior to her discharge.

III. Verdict

¶ 22. The jury returned a verdict in favor of the defendants, and the trial court entered a judgment on August 28, 2008, to that effect. Thereafter, Vanlandingham filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied the motion. Aggrieved, Vanlandingham timely filed her notice of appeal.

ANALYSIS

I. Jurors

¶ 23. Vanlandingham argues that the trial court erred by denying her challenge for cause to Guest and Daniels, arguing that the jurors had a financial interest in the outcome of the litigation. Conversely, Dr. Patton and Oxford OB/GYN argue that the trial court did not err because there was no evidence that either juror had any financial interest in the outcome of the case, and there was no question regarding the jurors’ abilities to render a fair and impartial verdict.

¶ 24. “A juror who may be removed on a challenge for cause is one against whom a cause for challenge exists that would likely affect his competency or impartiality at trial.” Gorman v. McMahon, 792 So.2d 307, 316 (¶ 24) (Miss.Ct.App.2001) (quoting Berry v. State, 703 So.2d 269, 292 (¶ 85) (Miss.1997)). The trial court sits in the best position to determine whether a juror should be excluded; thus, “[the] trial court has wide discretion in determining whether to excuse prospective jurors, including those challenged for cause.” Id. at 317 (¶ 25) (quoting Poe v. State, 739 So.2d 405, 409 (¶ 14) (Miss.Ct.App.1999)). Accordingly, absent a finding of abuse of discretion, this Court will not disturb a trial court’s decision regarding whether to strike a juror for cause. Id.

A. Thomas Guest

¶ 25. During voir dire, Vanland-ingham’s trial counsel questioned Guest as to the following:

Q: Okay. Dr. Glen Hunt. Any of you know Dr. Hunt?
A: Tom Guest, number 27. I am in the real estate business and I have done business with Dr. Hunt.
Q. Would that relationship with Dr. Hunt[,] if you had to find against Dr. Patton in this case, would you feel like if you saw him you would have to explain why you did what you did?
A: I feel like I could be fair but I feel like it would cost[s] me some business in the future if I ruled against him but I feel like I could be fair.

Based on this exchange, Vanlandingham’s trial counsel challenged Guest for cause, stating that he was biased because of his financial interest in the outcome of the case. The trial court overruled the challenge. Later, Vanlandingham successfully exercised a peremptory challenge against Guest.

¶ 26. When determining whether a potential juror can be impartial, the trial court considers the “factor or circumstance which tends to indicate a potential for bias on the part of that juror and secondly the juror’s promise that he or she can and will be impartial.” Smith v. Parkerson Lumber, Inc., 888 So.2d 1197, 1205 (¶ 26) (Miss.Ct.App.2004). In response to Vanlanding-ham’s challenge, the trial court stated: “The way I understand the gentleman was he said I[am] going to be fair even if it eost[s] me some business.” Additionally, Guest stated under oath that he could and would be fair and impartial in rendering his decision. Based on the foregoing, we cannot find that the trial court abused its discretion in denying Vanlandingham’s challenge for cause against Guest.

¶ 27. Although Guest did not serve on the jury, Vanlandingham complains that she should not have been forced to use a peremptory strike against him. However, Vanlandingham has failed to show how her trial was unfair because she had to use a peremptory strike against Guest. See id. at 1205 (¶ 27). Thus, we find that this issue is without merit.

B. Lisa Daniels

¶28. During voir dire, Daniels stated that she worked part-time at an internal medicine clinic. Her employer referred patients to Dr. Patton, and Dr. Patton referred patients to her employer. However, Daniels stated that she did not have any direct contact with Dr. Patton or his clients. Daniels stated under oath that she could be fair and impartial in rendering her decision. Vanlandingham’s trial counsel challenged Daniels for cause, arguing that she could not be fair and impartial because she had an “indirect financial interest” in the outcome of the case. The trial court overruled the challenge.

¶ 29. Vanlandingham had four peremptory strikes. One peremptory strike was used against Guest. The remaining peremptory strikes were used against jurors whom Vanlandingham did not challenge for cause. Vanlandingham did not use a peremptory strike against Daniels, and Daniels served on the jury.

¶ 30. As previously mentioned, the trial court sits in the best position to determine a potential juror’s impartiality “because he hears and sees each individual juror.” Gorman, 792 So.2d at 317 (¶ 25) (citation omitted). Within its discretion, the trial court determined that Daniels’s part-time employment with the internal medicine clinic would not affect her impartiality at trial. Daniels stated under oath that she could be fair and impartial in the case. “[I]t is a generally accepted principle that ‘jurors take their oaths and responsibilities seriously, and when a prospective juror assures the [trial] court that, despite the circumstance that raises some question as to [her] qualification, this will not affect [her] verdict, this promise is entitled to considerable deference.’ ” Haggerty v. Foster, 838 So.2d 948, 957 (¶ 21) (Miss.2002) (quoting Scott v. Ball, 595 So.2d 848, 850 (Miss.1992)). Based upon our review of the record, we have seen nothing to call the trial court’s decision into question. This argument is without merit.

II. Dr. Steven Stain’s Testimony

¶ 31. Vanlandingham argues that the trial court erred by denying her motion to strike Dr. Stain’s testimony. Specifically, Vanlandingham argues that Dr. Stain’s medical opinions were not based upon a reasonable medical probability, and Dr. Stain failed to articulate the applicable standard of care. Conversely, Dr. Patton and Oxford OB/GYN argue that Vanland-ingham failed to object to Dr. Stain’s testimony until well into direct examination, and Vanlandingham did not move to limit Dr. Stain’s testimony until after the jury had heard his testimony in its entirety. Additionally, they assert that Dr. Stain stated his medical opinions to a reasonable degree of medical certainty, and Dr. Stain articulated the applicable standard of care.

¶ 32. The Court must note that the plaintiff bears the burden of proof in a case of medical malpractice. Griffin v. McKenney, 877 So.2d 425, 446 (¶ 75) (Miss.Ct.App.2003) (citing McCaffrey v. Puckett, 784 So.2d 197, 206 (¶ 33) (Miss.2001)). Mississippi has adopted the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) to determine the admissibility of expert testimony. See Walker v. Gann, 955 So.2d 920, 930 (¶ 31) (Miss.Ct.App.2007). The Daubert test consists of a two-prong inquiry: (1) the trial court must establish whether the expert testimony is relevant, meaning that it will aid the fact-finder; and (2) the trial court must determine whether the expert testimony is reliable. Id. The admissibility of expert testimony lies within the sound discretion of the trial court. Causey v. Sanders, 998 So.2d 393, 399 (¶ 14) (Miss.2008). Thus, this Court will not disturb the trial court’s ruling absent a finding of abuse of discretion. Id.

¶ 33. As previously mentioned, Dr. Stain testified that, based on his review of Dr. Patton’s operative notes, Vanlanding-ham’s injury was a serosal injury that later progressed to a perforation. Dr. Stain testified that based on standard practices, a simple serosal injury does not require repair. However, Dr. Stain testified that an injury that has out pouching, where the mucosa is exposed, should be repaired. Because the injury was to the serosa, Dr. Stain stated that Dr. Patton complied with the standard of care when he did not repair the abrasion.

¶ 34. Vanlandingham does not argue that Dr. Stain’s testimony was irrelevant. She also does not question whether Dr. Stain was qualified to testify as an expert. Vanlandingham complains that Dr. Stain did not state his opinions within a reasonable degree of medical certainty or probability, using terms such as “my guess” and “I do not know.” Vanlandingham made a motion to exclude Dr. Stain’s testimony after Dr. Stain had testified before the jury. In ruling on the motion, the trial court found that Dr. Stain understood the standard of care and denied the motion.

¶ 35. It is true that Dr. Stain used such terms as “my guess” during his testimony. For instance, Dr. Stain stated the following during his direct examination:

A: I think my guess is it was a serosal injury.
PLAINTIFF[’S] [COUNSEL]: Objection, Your Honor, my guess is.
COURT: Sustained.
DEFENSE [COUNSEL]: Remember Dr. Stain, we indicated earlier that you express opinions only if you held them to a reasonable degree of medical probability and not as a mere possibility....
A: I’m sorry for using the term guess, I believe certainly a probability [sic] that the most likely thing that happened in the patient was there was a serosal injury which progressed in her postoperative period to a perforation which is what caused her peritonitis[,] and I think in answer to your specific question[,] I think the things that were done from reading the operative note, reading the post-operative progress notes that Dr. Patton complied with the standard of care.

Vanlandingham points out other excerpts of Dr. Stain’s testimony that she believes shows that he did not state his medical opinions within a reasonable degree of medical certainty. In most instances, Van-landingham’s trial counsel objected to a statement made by Dr. Stain, and the trial court sustained the objection, directing Dr. Stain to state his opinion within a reasonable degree of medical certainty or probability. After which, Dr. Stain complied.

¶ 36. As another example, Vanlanding-ham’s trial counsel questioned Dr. Stain on cross-examination regarding whether the standard of care required a physician to repair a serosal injury that had out pouching. Dr. Stain used the phrases, “I do not know” and “I am not sure,” when answering the question. However, Dr. Stain explained that, while serosal injuries are generally not repaired, he would repair an injury to the colon if it resulted in out pouching. This testimony is in accordance with the testimony Dr. Stain gave during direct examination.

¶ 87. Dr. Stain did not always use the magic words “within a reasonable degree of medical certainty or probability” during his testimony. However, Dr. Stain stated under oath from the very beginning of his testimony that he would state his medical opinion based on a reasonable degree of medical certainty or probability. Despite those few instances previously mentioned, he did so. The supreme court has held that there is no requirement that an expert use magical language in his testimony, “as long as the import of the testimony is apparent.” West v. Sanders Clinic for Women, P.A., 661 So.2d 714, 720 (Miss.1995). Viewing Dr. Stain’s testimony as a whole, we find that the import of his testimony was apparent; he articulated the applicable standard of care; and he sufficiently stated his medical opinions within a reasonable degree of medical certainty or probability.

¶ 38. Vanlandingham also complains that during Dr. Stain’s 2006 deposition, he gave four possibilities regarding what went wrong in Vanlandingham’s surgery. However, at trial, he listed one possibility— that she suffered from a serosal abrasion of the colon. The trial court informed trial counsel that the issue was a question for cross-examination, and trial counsel pursued the line of questioning on cross-examination. This matter clearly goes to Dr. Stain’s credibility, which was a matter for the jury to decide, and has no bearing on whether Dr. Stain’s testimony should have been admitted. See Kent v. Baptist Mem’l Hosp. N. Miss., 853 So.2d 873, 883 (¶ 38) (Miss.Ct.App.2003) (finding that “the jury is the ultimate judge of the weight of the evidence and the credibility of the witnesses”).

¶ 39. Based on the foregoing, we find that the trial court did not err by admitting Dr. Stain’s testimony. This argument is without merit.

¶ 40. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR.


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    Reyna Corridori WELLS, Appellant/Cross-Appellee v. Forrest Simpson WELLS, Appellee/Cross-Appellant.
    No. 2007-CA-01813-COA.
    Court of Appeals of Mississippi.
    June 1, 2010.

      Calvin D. Taylor, attorney for appellant.
    Gary L. Roberts, Gautier, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   LEE, P.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Reyna and Forrest Wells were granted a divorce on the ground of irreconcilable differences in the Chancery Court of Jackson County. Forrest and Reyna were awarded joint legal custody of two twin boys born during the marriage, Jeb and Josh Wells. Forrest was awarded physical custody of the twins, and Reyna was awarded visitation rights.

¶ 2. Forrest was adjudicated not to be the father of Reyna’s third son, Ben Wells, and has no legal rights or responsibilities for this child. Reyna was ordered to pay child support in the amount of $336 a month to Forrest for the support of Jeb and Josh. Forrest was ordered to provide health and hospitalization insurance for Jeb and Josh. Reyna and Forrest were ordered to split equally any medical, dental, ocular, or psychological expenses not covered by the insurance. Each party was ordered to maintain life-insurance policies of at least $100,000, with the twins listed as equal beneficiaries.

¶ 3. The marital estate was divided as follows:

1. The marital home was awarded to Forrest. Reyna was ordered to vacate the premises and convey her interest in the home to Forrest. Forrest was ordered to pay Reyna half of the equity in the home, which was $41,878.
2. The value of the couple’s furniture, appliances, and household possessions, which was found to be $25,000, was split equally between the parties. The chancellor ordered that the furniture remain in the house, and Forrest was ordered to pay Reyna half the value of the furnishings.
3. The family safe contained $6,300, which Reyna took for household expenses. This amount was determined to be a marital asset, which was split equally between the parties. Half of this amount was deducted from Forrest’s payments to Reyna.
4. The fair market value of Forrest’s plastic-surgery clinic, Gulf Coast Plastic and Reconstructive Surgery, PLLC, was divided equally between the parties. The fair market value was determined to be $148,000. Forrest was ordered to pay one-half of this amount to Reyna. The parties were also ordered to split equally the cost of the business appraisal, which was $7,915. Half of this amount was to be deducted from Reyna’s portion of the marital estate.
5. Each party was awarded the vehicle they currently used and possessed.
6. Finally, the chancellor made Forrest responsible for all the marital debt. The chancellor held that since she did not subtract Reyna’s portion of the liabilities from the marital assets, Forrest should be awarded the marital checking account; a VALIC 401 (k) retirement account, which had accumulated $8,223 in interest; and the life-insurance policy insuring his own life. The life-insurance policy had a cash value of approximately $4,500.

¶ 4. Reyna’s request for alimony and attorney’s fees was denied. Reyna and Forrest each filed motions challenging the judgment. Their motions were denied.

¶ 5. Reyna now appeals, asserting the following issues: (1) the chancellor erred in awarding custody of the twin boys to Forrest; (2) the chancellor erred in awarding the marital residence to Forrest; (3) the chancellor erred in setting child support; (4) the division and classification of personal property and assets were erroneous; and (5) the chancellor erred in denying her request for alimony and attorney’s fees. Forrest cross-appeals, arguing that the chancellor’s order did not provide for adequate child-support payments. Finding no error, we affirm on direct appeal and cross-appeal.

FACTS

¶ 6. Forrest and Reyna were married on May 25,1996. Forrest is a medical doctor, and Reyna is a registered nurse. Soon after the couple married, they began attempting to conceive a child. After multiple, unsuccessful attempts with in vitro fertilization, the couple decided to select donor sperm from a cryobank. The in vitro fertilization procedure with the donor sperm resulted in the birth of twins, Jeb and Josh, on June 3, 2001. The couple attempted to conceive again but were unsuccessful. Reyna stated that she was “desperate” for another child, but Forrest only wanted another child if Reyna could conceive naturally. Without Forrest’s knowledge or consent, Reyna artificially inseminated herself with donor sperm and, after multiple attempts, became pregnant. Reyna led Forrest to believe that the child was conceived naturally.

¶ 7. In order to obtain the donor sperm, Reyna used Forrest’s name as her physician’s name, and she had the sperm shipped to a fictitious plastic-surgery clinic at the couple’s home. Reyna paid for the donor sperm with a credit card she had opened in the name of the fictitious plastic-surgery clinic. Upon discovering the credit-card charges, Forrest confronted Reyna, who admitted that she became pregnant through artificial insemination and expressed remorse for deceiving him. At the time Forrest discovered the truth, Reyna was approximately eight-months pregnant. The pregnancy resulted in the birth of Ben on February 4, 2004. Forrest moved out of the marital residence in early 2005, and he returned upon being awarded the marital home in the divorce decree. Forrest testified that he was concerned about the marriage when he discovered the truth about Reyna’s second pregnancy, but he was willing to remain in the relationship. Forrest testified that he decided to end the relationship when Reyna began making threats to not let him see the children if her financial demands were not met.

¶ 8. Since the couple separated, they have been alternating custody of the twins weekly. Forrest has paid all of the financial expenses of the family from the time of the separation until the divorce decree. Forrest was thirty-eight years old, and Reyna was thirty-five years old at the time of the hearing. Forrest is a plastic surgeon and the sole owner of Gulf Coast Plastic and Reconstructive Surgery in Jackson County, Mississippi. Reyna is a registered nurse. She worked full time after the couple married, but she stayed at home after the children were born. Reyna was working part time as a pediatric nurse at the time of the hearing.

STANDARD OF REVIEW

¶ 9. Our standard of review in chancery matters is well settled. This Court will not reverse a decision of a chancellor unless the chancellor’s findings were clearly erroneous, manifestly wrong, or applied an erroneous legal standard. Pearson v. Pearson, 761 So.2d 157, 162 (¶ 14) (Miss.2000).

DISCUSSION

I. CHILD CUSTODY

¶ 10. Reyna argues that the chancellor erred in awarding physical custody of Jeb and Josh to Forrest. She argues that the chancellor erred in separating the children. It is her position that the children’s best interests would be served by keeping all three children together in her custody. She also asserts that Forrest should have been adjudicated to be Ben’s father. Reyna asserts that Forrest acted in loco parentis to Ben and, therefore, should be charged with the rights and responsibilities of a natural parent.

¶ 11. “[T]he polestar consideration in child custody cases is the best interest and welfare of the child.” Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). According to Albright, the chancellor must consider certain factors in determining the child’s best interest. Id. We will examine those factors.

1. Age, Health, and Sex of the Children

¶ 12. Jeb and Josh are twins boys. They were almost six years old at the time of the hearing. They are in good health. The chancellor found that this factor did not weigh in favor of either parent.

2.Continuity of Care

¶ 13. Prior to the separation, Reyna was the primary caretaker of the twins. From the time of the couple’s separation, the parties shared the custody of the twins. The chancellor found that both parents have shown good parenting skills. Forrest and Reyna shared custody equally during the separation, alternating custody weekly. The chancellor found that this factor did not weigh in favor of either parent.

3.Parenting Skills and Willingness to Provide Child Care

¶ 14. Both parties have good parenting skills and have demonstrated a willingness to provide child care. Reyna has cut back on her work hours to be available for the children, and Forrest has assistance from his mother when he is not able to alter his work schedule to fit the children's needs. Reyna occasionally travels to Troy, Alabama, during her time with the children where they visit family and Conley Freeman, the man she is dating. The chancellor noted that Reyna allows Freeman to spend the night at the marital home while the children were present, which the chancellor found brought Reyna’s moral fitness into question. However, the chancellor found that both parents have exhibited good parenting skills during the separation. Thus, the chancellor found that this factor favored neither party.

4.Employment Responsibilities of the Parents

¶ 15. Forrest works for himself and can adjust his surgery schedule to spend more time with the twins. He works close to their home and school. Forrest testified that another plastic surgeon was joining his practice in the summer of 2007, which would make his employment responsibilities even less demanding.

¶ 16. Reyna works as a pediatric nurse and has limited her work hours to spend more time with the children. Reyna testified her work schedule was flexible. However, the chancellor noted that her schedule was not as flexible as Forrest’s schedule, and if Reyna changed employment, she would likely have a set schedule. The chancellor also noted that Reyna’s job requires her to travel throughout Jackson County and into adjacent counties. The chancellor found that although Reyna would remain in a reasonable proximity to the children, Forrest would be closer. Thus, the chancellor found that this factor weighed slightly in favor of Forrest.

5.Physical and Mental Health of the Parents

¶ 17. Both parties are in good physical and emotional health. The chancellor found that this factor favored neither party-

6.Emotional Ties of Parent and Child

¶ 18. It is not disputed the children and parents share an emotional bond. The chancellor found that this factor favored neither party.

7.Moral Fitness of the Parents

¶ 19. Several of Reyna’s actions bring her moral fitness into question. Reyna intentionally deceived Forrest when she became pregnant by artificially inseminating herself. During their separation, Forrest discovered that Reyna was involved in a relationship with Freeman. Forrest amended his complaint for divorce to add adultery as an additional ground for divorce. The chancellor noted that the sexual conduct of either parent is considered part of the moral fitness of the parent. Although adultery is not to be used as a sanction against a guilty parent in awarding custody of children, this does not preclude a chancellor from considering conduct associated with the adultery when it is relevant to one of the Albright factors. See, e.g., Bower v. Bower, 758 So.2d 405, 412 (¶ 29) (Miss.2000) (citing Carr v. Carr, 480 So.2d 1120, 1121 (Miss.1985)). Reyna admitted that she has allowed the man she is dating to stay overnight in her home while the children are present. The chancellor found that this behavior was not in the best interests of the children, and it did not set a good example for them.

¶ 20. The chancellor also noted that Forrest and Reyna experienced financial difficulty while married because of Reyna’s spending habits. Reyna has continued to incur debt. Also, Reyna incurred a large amount of debt attempting to have a third child, and she intentionally hid the debt from Forrest. Reyna had sought help from Forrest’s mother to pay some of the credit-card debt. Forrest testified that he was unaware that Reyna had asked for his mother’s assistance in paying the debt. Forrest placed Reyna on a strict budget, only allowing her a certain amount of cash. Reyna testified that the budget was unreasonable. This caused a significant strain on the relationship.

¶ 21. The chancellor found that Reyna’s activity in accumulating and concealing debt caused her to question Reyna’s veracity. Also, her deceit in conceiving a child without Forrest’s knowledge brought her moral fitness into question. Therefore, the chancellor found that this factor weighed in Forrest’s favor.

8.Home, School, and Community Record of the Children

¶ 22. At the time of the hearing, Jeb and Josh were enrolled in kindergarten and participated in a soccer league. The chancellor found that this factor favored neither party.

9.Preference of the Child

¶ 23. The children were not of a sufficient age to express a preference.

10.Stability of Home Environment and Employment of the Parents

¶ 24. After the separation, Forrest established a home for himself and the twins. He has a growing plastic-surgery clinic in Jackson County. He has been supporting himself, Reyna, and the children. He pays for all of his expenses and most of the expenses for the marital home. The chancellor noted that during the two years of divorce proceedings, Forrest paid nearly $80,000 annually for Reyna’s benefit. Nonetheless, Reyna accumulated significant debt during this time.

¶ 25. Reyna is a registered nurse and has the ability to work full time. She works part time in order to spend more time with the children. The chancellor expressed concern that Reyna has not shown the ability to provide a stable or financially secure home environment. The chancellor found that this factor weighed in Forrest’s favor.

11.Other Relevant Factors

¶ 26. Reyna argues that it would be in the best interests of the three children to remain together. The twins and Ben are half-brothers. Reyna is their mother, and they were fathered by two different sperm donors. The chancellor found that it would be inequitable for Reyna to use her misconduct in conceiving Ben to gain custody of the twins. Reyna argues that the chancellor ignored the children’s best interests and instead sought to punish her for secretly becoming pregnant.

¶ 27. Reyna presented an expert witness, Dr. Donald Matherne, who performed a psychological evaluation of the twins. Dr. Matherne did not express an opinion on the custodial placement of the twins, but he noted that it would not be advantageous for Ben to be isolated and limited in contact with Forrest. The chancellor took into consideration that there is a preference that siblings remain together unless the circumstances justify the separation. Sellers v. Sellers, 638 So.2d 481, 484 (Miss.1994). However, under the circumstances of this case, Forrest was not adjudicated to be Ben’s father. Forrest has no rights or legal interest in this child. Therefore, the chancellor was presented with the option of either keeping the children together and awarding custody of all three children to Reyna or separating the children by awarding the twins to Forrest. As the chancellor found it would be in the best interests of the children to award custody to Forrest, it would be unfair to deny him custody because it would separate the twins from their half-brother.

¶ 28. The chancellor found three of the Albright factors in Forrest’s favor, and she found the rest to be either neutral or inapplicable. We find that the chancellor thoroughly considered each of the Albright factors in awarding custody of Jeb and Josh to Forrest. Although there is a preference for siblings to remain together, this is only one factor. When considering the factors together as a whole, we cannot find that the award of child custody was clearly erroneous. ‘Where the chancellor properly considers and applies the Albright factors, the appellate court cannot say the chancellor is manifestly wrong; such careful consideration and application by the chancellor precludes reversal on appeal.” Jerome v. Stroud, 689 So.2d 755, 757 (Miss.1997). Therefore, we affirm the award of custody of the twins to Forrest.

II.MARITAL RESIDENCE

¶ 29. Reyna argues that because she should have been granted primary physical custody of the children, she also should have been granted the exclusive use and possession of the marital residence. See Chamblee v. Chamblee, 637 So.2d 850, 863 (Miss.1994) (“It is preferable that the party who is awarded such custody should also be awarded use of the marital home.”). Having found that the award of child custody was not made in error, we also find that this issue is without merit.

III. CHILD SUPPORT

¶ 30. The chancellor awarded Forrest child support in the amount of $336 per month for Jeb and Josh. Reyna states in her brief that this amount was not supported by the evidence. No elaboration is made as to why the award was erroneous. No legal authority is cited for her argument. “Failure to cite any authority is a procedural bar, and this Court is under no obligation to consider the assignment.” Eagle Mgmt., LLC v. Parks, 938 So.2d 899, 903 (¶ 9) (Miss.Ct.App.2006).

IV. DIVISION OF ASSETS

¶ 31. Reyna argues that the chancellor erred in dividing the marital property. When reviewing questions of equitable distribution, this Court “look[s] to the chancellor’s application of the Ferguson factors.... ” Phillips v. Phillips, 904 So.2d 999,1001 (¶ 8) (Miss.2004) (citing Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994)). In Ferguson, the Mississippi Supreme Court set forth factors that chancellors must consider when equitably dividing a marital estate. Hults v. Hults, 11 So.3d 1273, 1281 (¶ 36) (Miss.Ct.App.2009) (citing Ferguson, 639 So.2d at 928). We will examine those factors.

1. Contribution to the Accumulation of Property

¶ 32. When considering the first factor, contribution to the accumulation of property, chancellors should consider: (a) the direct or indirect economic contribution to the acquisition of the property; (b) contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties, and duration of the marriage; and (c) contribution to the education, training, or other accomplishments bearing on the earning power of the spouse accumulating the assets. Ferguson, 639 So.2d at 928.

¶ 33. The chancellor found that each party made a direct or indirect economic contribution to the household. Forrest worked as a surgeon, and Reyna worked at home taking care of the children and household duties. Forrest and Reyna were married for almost eight years. Reyna concealed credit-card debt from Forrest during the marriage and conceived a child through artificial insemination without Forrest’s knowledge. Reyna alleges that Forrest physically and emotionally abused her. Forrest adamantly denies this allegation. Reyna presented one witness to corroborate her testimony. The ■witness testified that she did not see any actual abuse occur, but she saw bruises on Reyna.

¶ 34. When the couple married, Forrest had obtained his undergraduate and medical school degrees, and he had finished his first year of medical residency. Forrest completed an additional year of residency in Alabama while Reyna worked as a nurse. The couple then moved to Illinois, where Forrest completed a residency specializing in plastic surgery. Reyna did not work outside the home while the couple lived in Illinois. Reyna had already obtained her nursing degree before she and Forrest married.

2.Dissipation of Assets

¶ 35. The chancellor noted that Reyna took $6,300 in cash from the family safe. She testified that she spent the money to hire an attorney, purchase items for the children, and pay for household expenses.

3.Market or Emotional Value of Assets Subject to Distribution

¶ 36. The market value of the marital home was $410,000. Forrest valued the household furnishings at $25,000. Forrest estimated the value of Reyna’s vehicle to be $20,000 with a balance of $5,054 owed. Forrest estimated his vehicle was worth approximately $5,000. Reyna did not present values for these items. The value of Forrest’s medical practice was $148,000. Forrest paid for the expert’s appraisal, which was $7,915. The chancellor found that the cost of the appraisal should be split equally between the parties.

4.Value of Assets Not Subject to Distribution

¶ 37. The following items were determined by the chancellor to “be Forrest’s non-marital assets and not subjection to distribution: (1) Forrest’s retirement account in the amount of $32,000; (2) Forrest’s interest in the Mississippi Gulf Coast Surgical Center valued at $52,339; and (3) any increase in the value of Forrest’s business, Gulf Coast Plastic and Reconstructive Surgery, PLLC, since September 30, 2004. Reyna’s non-marital assets were certain items of furniture that had been purchased by her parents.

5.Tax and Economic Consequences of the Distribution

¶ 38. No testimony was presented regarding this factor.

6.The Extent to Which Property Division May Eliminate the Need for Alimony

¶ 39. The chancellor found that the best way to divide the marital property would be to award assets in whole rather than dividing them between the parties in order to eliminate the need for alimony.

7.Financial Security of the Parties

¶ 40. The chancellor determined that each party has the ability to earn income sufficient to provide financial security without any contribution from the other party. Although Reyna’s earning capacity is less than Forrest’s, she is still able to support herself comfortably as a nurse. Reyna argues that Forrest is more financially secure than her because he has a significant amount of non-marital assets which were accumulated after the entry of the temporary order. However, the chancellor ordered Forrest to be responsible for the debt accumulated during the marriage. Forrest was also ordered to pay for the marital home, and he paid Reyna’s and the children’s living expenses during the separation.

8. Any Other Factor That Should be Considered

¶ 41. Since the time of the temporary order, Forrest has paid Reyna’s living expenses in excess of $80,000 per year. He has paid Reyna $1,500 a month in alimony and $650 a month for groceries. He has done so even though he and Reyna have alternated custody of the twins weekly. Despite this, Reyna has incurred debt.

¶ 42. After considering the foregoing factors, the chancellor determined that the marital estate should be split equally. After dividing the property, the chancellor made Forrest responsible for the marital debt. In order to maintain an equitable result, the chancellor awarded Forrest the marital checking account, the interest in the 401 (k), and his interest in his life-insurance policy.

¶ 43. We cannot find that the chancellor’s division was clearly erroneous. The Ferguson factors were thoroughly considered, and the division was made in such a way as to eliminate alimony.

V. ALIMONY

¶ 44. The chancellor found that the division of property left no need for alimony. Reyna argues that she should have received lump-sum alimony because Forrest’s non-marital assets are significantly greater than her non-marital assets. Reyna points out that Forrest’s non-marital estate was valued at $613,848, and her non-marital estate was valued at $3,550. However, Reyna was awarded assets in excess of $100,000 and none of the debt. Therefore, we find that the chancellor did not err in denying alimony.

VI. ATTORNEY’S FEES

¶ 45. The chancellor likewise denied Reyna’s request for attorney’s fees upon finding that both parties were capable of paying their own legal expenses. Except for $2,500 which was given to her by Forrest, Reyna relied on credit cards to finance the divorce proceeding. She states her attorney’s fees are over $40,000. Generally, “[a]n award of attorney’s fees is appropriate in a divorce case where the requesting party establishes an inability to pay.” Gray v. Gray, 745 So.2d 234, 239 (¶ 26) (Miss.1999) (citations omitted). However, if “a party is financially able to pay her attorney, an award of attorney’s fees is not appropriate.” Young v. Young, 796 So.2d 264, 268-69 (¶ 11) (Miss.Ct.App.2001). Whether to award attorney’s fees in a divorce case is a discretionary matter left to the chancellor’s determination; thus, this Court is “reluctant to disturb” such a finding. Id. at 268 (¶ 11). We agree with the chancellor’s determination that Reyna has failed to show that she is incapable of paying her own attorney’s fees. Therefore, we find that this issue is without merit.

Cross-appeal

¶ 46. In his cross-appeal, Forrest argues that the amount of child support set by the chancellor is too low. The chancellor ordered Reyna to pay Forrest child support in the amount of $336 per month. The chancellor used the child-support guidelines set out in Mississippi Code Annotated section 43-19-101(1) (Rev. 2009). This section states that for two children, child support should be set at twenty percent of the non-custodial spouse’s adjusted gross income. Reyna’s monthly income working part time as a nurse is $1,680. Twenty percent of this amount is $886. However, Forrest argues that Reyna should be ordered to pay twice that amount, or $672, based on full-time employment. Reyna worked full time for approximately six months during a probationary period, but then she cut back her hours to part time to spend more time with the children.

¶ 47. Forrest argues that income should be imputed to Reyna because she is working at less than full capacity. This Court has held that “income will be imputed to a child[-]support payor who, in bad faith, voluntarily worsens his financial position.” Howard v. Howard, 968 So.2d 961, 972 (¶ 25) (Miss.Ct.App.2007). “[A]n obligor’s financial position cannot be voluntarily worsened in an attempt to lessen his [or her] child[-]support obligation.” Swiderski v. Swiderski, 18 So.3d 280, 286 (¶ 25) (Miss.Ct.App.2009). There is no evidence that Reyna reduced her work hours in bad faith to reduce her child-support obligation. The chancellor noted multiple times that Reyna’s goal in reducing her work hours was to spend more time with the children.

¶ 48. The chancellor’s decision whether or not to impute income is discretionary. We cannot find the chancellor was manifestly wrong or abused her discretion by not imputing income to Reyna. Therefore, the award of child support is affirmed. The cross-appeal is without merit.

¶ 49. THE JUDGMENT OF THE JACKSON COUNTY CHANCERY COURT IS AFFIRMED ON DIRECT APPEAL AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT/CROSS-APPELLEE AND ONE-HALF TO THE APPELLEE/CROSS-APPELLANT.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.


author: ROBERTS, J.,

text:
    Bruce NIEBANCK and Claudia Niebanck, Appellants v. Robert D. BLOCK, Myfis C. Wims and Angela D. Wims, Appellees.
    No. 2009-CA-00530-COA.
    Court of Appeals of Mississippi.
    June 1, 2010.

      James W. Amos, Hernando, attorney for appellants.
    Lawrence Lee Little, Tara Beth Scruggs, Oxford, attorneys for appellees.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Bruce and Claudia Niebanck appeal the decision of the DeSoto County Chancery Court finding that the Niebancks failed to sustain their claim that they had adversely possessed two sections of property: one that belonged to Robert D. Block (Dale) and one that belonged to Myfís C. Wims and Angela D. Wims. The Niebancks argue that the chancellor erred when she found that they had not adversely possessed the properties at issue. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. This dispute among neighbors centers on the ownership of two separate but adjacent parcels of property located in De-Soto County, Mississippi. At one time, William H. Austin, Jr., owned a large contiguous section of property. The litigants in this case all obtained property that originated from Austin’s ownership. In 1991, the Niebancks acquired 25 acres of property that had once belonged to Austin and his family. In July 2005, the Wimses acquired approximately 22.4 acres that had originated from Austin’s ownership. At the same time,' Dale acquired 10.01 acres of property that had originated from Austin’s ownership.

¶ 8. Dale’s property and the Wimses’ property are both north of the Niebancks’ property. To be specific, Dale’s and the Wimses’ southern property lines are the Niebancks’ northern property lines. Dale’s western property line is the Wims-es’ eastern property line. This dispute focuses on the property line that the Nie-bancks share with both Dale and the Wimses.

¶4. The underlying litigation was set into motion at approximately the same time that Dale and the Wimses worked together to dig a trench to run power lines to their respective properties. Certain factual matters surrounding the initial dispute will be discussed in greater detail in the analysis portion of this opinion. Suffice it to say, it became clear to everyone involved that there was some confusion regarding the location of the Niebancks’ northern boundary line.

¶ 5. On February 26, 2006, Bruce sent separate letters to Myfis and Dale. In the letter to Myfis, Bruce stated as follows:

[Claudia and I] have believed the property to the fence and including the fence was ours and have used and maintained said property for over 14 years. However, in fairness and with neighborly consideration and as previously discussed between yourself, my wife and I, we are offering at this time to purchase, at a price of $5,00[0] per acre, that portion of property that lies between the surveyed line and the pre-existing fence line. As the enclosed map indicates this is .4 acres [sic]. The purchase price would be $2,000 plus closing costs.

Bruce included practically identical language in his letter to Dale. However, rather than .4 acre of property, Bruce stated that he believed he owned a ,7-acre section of Dale’s property. Bruce offered to purchase the .7-acre section of property at the same rate. That is, Bruce offered to buy the .7-acre section of property at the rate of $5,000 per acre for a total of $3,500.

¶6. On March 21, 2006, attorney Kimberly S. Jones wrote a response letter to Bruce. Writing on behalf of Dale and the Wimses, Jones informed Bruce that neither Dale nor the Wimses were interested in selling their property. Additionally, the attorney for Dale and the Wimses informed the Niebancks that they had thirty days to remove a fence that encroached on the properties that belonged to Dale and the Wimses or they would “be forced to remove the fence themselves.”

¶ 7. On April 18, 2006, the Niebancks sued Dale and the Wimses. According to the Niebancks, they had adversely possessed a .4-acre section of the Wimses’ property and a .7-acre section of Dale’s property. Additionally, the Niebancks requested that the chancellor grant a preliminary injunction enjoining Dale and the Wimses from removing any fences from their properties or using the disputed properties in any way. Finally, the Nie-bancks requested that the chancellor grant a permanent injunction restricting the same conduct after hearing the Niebancks’ claims.

¶ 8. On November 7, 2008, the parties went to trial. The Niebancks called four witnesses during their case-in-chief: My-fis, Dale, Bruce, and Claudia. Their testimonies will be discussed in detail as necessary. Suffice it to say that Myfis, Dale, Bruce, and Claudia testified regarding the background of the dispute and their respective positions regarding ownership of the disputed properties. Dale also testified during the defense’s case. Otherwise, the defense called just one other witness: Austin. Both of the Niebancks testified again during the rebuttal portion of their case. After brief arguments summarizing the parties’ positions, the chancellor issued an oral ruling finding that the Niebancks failed to meet their burden of proof. Accordingly, the chancellor dismissed the Niebancks’ complaint. The chancellor entered a written order dismissing the Nie-bancks’ complaint on January 16, 2009. The Niebancks filed a motion for new trial or, alternatively, to amend the judgment. The chancellor denied the Niebancks’ post-trial motions. Aggrieved, the Niebancks appeal.

STANDARD OF REVIEW

¶ 9. This Court is bound by a limited standard of review when reviewing a chancellor’s decision. Ellison v. Meek, 820 So.2d 730, 734 (¶ 11) (Miss.Ct.App.2002). “When reviewing a chancellor’s decision, we will accept a chancellor’s findings of fact as .long as the evidence in the record reasonably supports those findings. In other words, we will not disturb the findings of a chancellor unless those findings are clearly erroneous or an erroneous legal standard was applied.” Peagler v. Measells, 743 So.2d 389, 390 (¶ 6) (Miss.Ct.App.1999). “The chancellor, as the trier of fact, evaluates the sufficiency of the proof based on the credibility of witnesses and the weight of their testimony.” Ellison, 820 So.2d at 734 (¶ 11) (citation omitted). The standard of review for questions of law is de novo. Id.

ANALYSIS

¶ 10. The Niebancks claim the chancellor erred when she found that they had failed to demonstrate a prima facie case of adverse possession. Mississippi Code Annotated section 15-1-13(1) (Rev. 2003) provides as follows:

Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title....

Accordingly, one asserting a claim of adverse possession must prove that the possession is “(1) under claim of right; (2) actual; (3) open, notorious and visible; (4) exclusive; (5) continuous and uninterrupted for ten years; and (6) peaceful.” Stallings v. Bailey, 558 So.2d 858, 860 (Miss.1990) (citations omitted). Additionally, one asserting a claim of adverse possession must demonstrate by clear and convincing evidence that each element was met. Cook v. Robinson, 924 So.2d 592, 595 (¶ 11) (Miss.Ct.App.2006). Clear and convincing evidence has been defined as follows:

that weight of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact[-]finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.

Moran v. Fairley, 919 So.2d 969, 975 (¶ 24) (Miss.Ct.App.2005) (quoting Travelhost, Inc. v. Blandford, 68 F.3d 958, 960 (5th Cir.1995)). “Clear and convincing evidence is such a high standard [of proof] that even the overwhelming weight of the evidence does not rise to the same level.” Id. (citing In re C.B., 574 So.2d 1369, 1375 (Miss.1990)).

A. Open, notorious, and visible

¶ 11. “A landowner must have notice, actual or imputable, of an adverse claim to his property in order for it to ripen against him, and the mere possession of land is not sufficient to satisfy the requirement of open and notorious.” Warehousing Mgmt., LLC v. Haywood Props., LP, 978 So.2d 684, 687 (¶ 17) (Miss.Ct.App.2008) (quoting Scrivener v. Johnson, 861 So.2d 1057, 1059 (¶ 6) (Miss.Ct.App.2003)). Stated differently, one who seeks to acquire property by adverse possession “must unfurl his flag on the land, and keep it flying, so that the [actual] owner may see, and if he will, [know] that an enemy has invaded his domains, and planted the standard of conquest.” Blankinship v. Payton, 605 So.2d 817, 820 (Miss.1992).

¶ 12. “In most cases, the underlying question is whether the possessory acts relied upon by the would-be adverse possessor are sufficient to put the record title holder upon notice that the lands are held under an adverse claim of ownership.” Cook, 924 So.2d at 595 (¶ 12) (citation omitted). According to the Niebancks, because it is undisputed that they purchased their 25-acre section of property in 1991, “[t]here does not appear to be any doubt that the[y] [held the] property ... under [a] claim of ownership ... for at least the ten[-]year statutory period of time.” However, the Niebancks sought to acquire property that was beyond the bounds of the 25-acre section of property that they had purchased. Simply because the Nie-bancks purchased property in 1991 does not automatically mean that they held property other than that which was described in the 1991 deed under a claim of ownership.

¶ 13. The Niebancks also argued that the presence of an old barbed wire fence north of their actual boundary line caused them to believe that they owned the disputed property. Precedent has stated that: “If a fence encloses the property for a period of at least ten years, under a claim of adverse possession, title vests in the claimant and possessor, even though the fence was subsequently removed or fell into disrepair.” Roy v. Kayser, 501 So.2d 1110, 1112 (Miss.1987) (quoting Cole v. Burleson, 375 So.2d 1046, 1048 (Miss.1979)). However, the Niebancks did not build the fence. During his direct examination, Austin was asked whether the fence was intended to be a boundary fence. Austin responded as follows:

There is no fence in there that was ever considered or characterized to be a boundary fence whatsoever. There was a little fence in there at one time because my son was young and I always gave him chores and I required him to cut the back yard and he didn’t exactly know where to stop and we had — as I have already testified we had cows over all this property and so we just stuck up a fence as we stuck up fences from time to time to keep them back out of the corn field or bean field or whatever and they certainly were not property line fences in any stretch of the imagination.

At the time of trial, the fence was nearly pulled down due to vines and other plants growing on the fence. “[T]he mere existence of a fence near the actual boundary line does not establish that the fence is the accepted boundary between the properties.” Cook, 924 So.2d at 595 (¶ 13) (quoting Ellison, 820 So.2d at 735 (¶ 16)). Furthermore, the Niebancks’ metes and bounds description within the Niebancks’ deed describes their northern boundary as being a straight line between the northwest corner and the northeast corner of their property. The fence was not built in a straight line. Instead, it contains two angles in which the fence line shifts to the northeast. Consequently, the manner in which the fence line is situated clearly conflicts with the description within the Niebancks’ deed.

¶ 14. Additionally, the Niebancks point out that they sometimes invited children and groups from their church to visit their property. They also allowed emergency management agencies to conduct training exercises on their property. Though the Niebancks testified that they had invited those groups to their property, it is unclear whether or how often those groups used the property at issue. In any event, the Niebancks purchased the property in 1991, and Claudia testified that the last time they had any such groups to their property was in the late 1990s. Accordingly, those sporadic activities did not take place for the statutory ten-year time period. We cannot find that the chancellor abused her discretion when she found that the Niebancks had failed to demonstrate by clear and convincing evidence their open, notorious, and visible possession of the disputed property.

B. Actual or hostile

¶ 15. “Actual possession is ‘effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses.’ ” Warehousing Mgmt., LLC, 978 So.2d at 688 (¶ 20) (quoting Wicker v. Harvey, 937 So.2d 983, 993-94 (¶ 34) (Miss.Ct.App.2006)). “An occupant of land who mistakenly believes the land lies within the boundaries established by his own deed, when the land actually belongs to another, may acquire title to that land by adverse possession.” Id. (citations omitted).

¶ 16. “In most cases, the underlying question is whether the possessory acts relied upon by the would-be adverse possessor are sufficient to put the record title holder upon notice that the lands are held under an adverse claim of ownership.” Cook, 924 So.2d at 595 (¶ 12) (citation omitted). According to the Niebancks, because it is undisputed that they purchased their 25-acre section of property in 1991, “[t]here does not appear to be any doubt that the property has been held under claim of ownership by [the Niebancks] for at least the ten[-]year statutory period of time.” However, the Niebancks sought to acquire property that was beyond the bounds of the 25-acre section of property that they purchased. Simply because the Niebancks purchased property in 1991 does not automatically mean that they held property other than that which was described in the 1991 deed under a claim of ownership.

¶ 17. Additionally, we cannot find that the chancellor erred when she held that the Niebancks failed to submit clear and convincing evidence that they did not have permission to use the property from the predecessor in title to both Dale’s and the Wimses’ properties. Claudia testified that she asked Austin for permission to ride horses on his property. Claudia also testified that Austin gave her permission to do so. Austin corroborated Claudia’s testimony. The Niebancks attempted to possess property adversely that was south of an old barbed wire fence. The Niebancks’ attorney attempted to rehabilitate Claudia’s testimony by having her testify that she thought she was receiving permission to use Austin’s property north of that barbed wire fence. However, as Dale and the Wimses discuss in their brief:

Regardless of what [Claudia] might have thought or believed, it was [Austin’s] understanding that he was granting permission for the Niebancks to be present on any property he owned north of the Niebancks 25[-]acre tract. Therefore, even if [Austin] had seen the Niebancks and their horses on the disputed 1.1 acre, he would have [had] no reason to believe that they were asserting hostile ownership of the property. He would have assumed that they were present pursuant to his permission^] and he would have no reason to assert his continued ownership to them.

“If possession is permitted by the owner, it cannot be adverse.” Peagler, 743 So.2d at 391 (¶ 9). “Adverse possession is totally inconsistent with that of permissive use.” Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150, 1153 (Miss.1992). Accordingly, we cannot find that the chancellor erred when she found that the Niebancks had failed to demonstrate by clear and convincing evidence actual, hostile possession of the disputed property.

¶ 18. Having found that the chancellor did not abuse her discretion when she found that the Niebancks had failed to demonstrate by clear and convincing evidence two of the elements essential to an adverse-possession case, there is no need to go further in the analysis. The Nie-bancks were obligated to demonstrate by clear and convincing evidence that each of the elements were met. The chancellor bore the responsibility of weighing the conflicting testimony, and there is substantial evidence to support her decision. We refrain from disturbing her decision. Accordingly, we affirm the chancellor’s judgment.

¶ 19. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND MAXWELL, JJ., CONCUR. CARLTON, J. NOT PARTICIPATING.

      . The Niebancks also named the banks that held deeds of trust on the two parcels of property. Merchants and Farmers Bank held the deed of trust on Dale’s property. First Tennessee Bank National Association held the deed of trust on the Wimses' property. The Niebancks later agreed to dismiss the banks from the litigation.


author: PER CURIAM.

text:
    Christopher S. CHIEPALICH and Elizabeth W. Chiepalich v. Harwell E. COALE, Jr.
    1061725.
    Supreme Court of Alabama.
    Oct. 16, 2009.
    John R. Spencer, Mobile, for appellants.

      Joseph D. Steadman of Dodson & Stead-man, P.C., Mobile, for appellee.
   PER CURIAM.

Christopher S. Chiepalich and Elizabeth W. Chiepalich appeal from the dismissal by the Mobile Circuit Court of their claims against Harwell E. Coale, Jr. We reverse and remand.

Facts and Procedural History

On October 25, 2004, the Chiepalichs filed a “bill for declaratory judgment and permanent injunction” against Coale in the Clarke Circuit Court, seeking a determination that they possessed an easement that allowed them to access their property using a certain roadway (sometimes referred to as “the old settlement road”) that crosses Coale’s property and seeking to enjoin Coale from erecting barriers that would prevent them from using the roadway. The Chiepalichs also apparently sought a preliminary injunction, which, after a hearing, the trial court denied. Otherwise, according to the Chiepalichs, that action was still pending in the Clarke Circuit Court when they filed their brief with this Court in the present case. Chiepalichs’ brief, at 7.

On October 23, 2006, First American Title Insurance Company (“First American”) filed a declaratory-judgment action in the Mobile Circuit Court, naming the Chiepalichs as defendants. First American had issued a title-insurance policy to the Chiepalichs, insuring the legal title to the real property owned by them that adjoined Coale’s property and that they desired to access by way of the old settlement road. The declaratory-judgment action sought a determination that the coverage provided under the policy did not insure against loss or damage sustained by the Chiepalichs’ lack of access to their property.

On December 27, 2006, the Chiepalichs filed a counterclaim against First American and a “third-party complaint” against Coale in the action pending in the Mobile Circuit Court. The third-party complaint alleged negligence, wantonness, intentional interference with business relations, trespass, conversion, and nuisance. All of those claims were based on the Chiepa-lichs’ allegation that Coale had refused to allow them to use the old settlement road to remove from their property timber that allegedly had fallen as a result of Hurricane Ivan and Hurricane Katrina in September 2004 and August 2005, respectively. The complaint alleged that, in December 2005, the Chiepalichs notified Coale that they intended to use the old settlement road to remove the timber, but Coale refused to unlock gates that were blocking access to the old settlement road even though he knew an easement existed in favor of the Chiepalichs. According to the complaint, the Chiepalichs had negotiated with another party to remove and sell the timber but the proposed contract with that party was not consummated because that party was unable to gain access to the Chiepalichs’ land via the old settlement road. The complaint further alleged that Coale’s refusal to allow the Chiepalichs to use the old settlement road caused them to suffer a total loss of the value of the timber.

On January 26, 2007, Coale moved the Mobile Circuit Court to dismiss the third-party complaint based on § 6-5-440, Ala. Code 1975, which prohibits a plaintiff from “prosecut[ing] two actions in the courts of this state at the same time for the same cause and against the same party.” Coale argued that the third-party complaint against him in the Mobile Circuit Court was barred because, he said, an action “for the same cause” was pending against him in the Clarke Circuit Court. On March 28, 2007, the Mobile Circuit Court dismissed the claims against Coale, stating: “By order of court, motion to dismiss third party, granted.”

On April 20, 2007, the Chiepalichs moved the Mobile Circuit Court to vacate its order dismissing their claims against Coale. In that motion, the Chiepalichs argued:

“The only way the Clarke County action could be conclusive as against the claims asserted in the Third-Party Complaint is if the Clarke County court finds that an easement does not exist. Even though Coale is a party in both suits, if the Clarke County court rules in favor of Chiepalich, then that finding will not have a conclusive effect on the claims asserted in the Third-Party action. Once the existence of the easement has been judicially declared, it will be necessary then for this court to determine Coale’s liability for wrongfully interfering with Chiepalich’s efforts to remove the timber from his property. The evidence to be presented in this regard will differ substantially from the evidence to be presented in the Clarke County matter.”

The trial court failed to dispose of the Chiepalichs’ motion. On August 20, 2007, the trial court certified the order of March 28, 2007, as a final judgment under Rule 54(b), Ala. R. Civ. P. The Chiepalichs appealed.

Standard of Review

When the facts underlying a motion to dismiss based on § 6-5-440 are undisputed, review of the application of the law to those facts is de novo. Ex parte Metropolitan Prop. & Cas. Ins. Co., 974 So.2d 967, 969 (Ala.2007).

Discussion

On appeal, the Chiepalichs argue that the Mobile Circuit Court should not have dismissed their claims against Coale based on § 6-5-440 because, they say, the action in the Mobile Circuit Court is not based on the same cause of action as the action pending in the Clarke Circuit Court. We agree.

Section 6-5-440, Ala.Code 1975, provides:

“No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pen-dency of the former is a good defense to the latter if commenced at different times.”

“The purpose of § 6-5-440 and its predecessors is to prevent unnecessary and vexatious litigation.” Shepherd v. Maritime Overseas Corp., 614 So.2d 1048, 1050 (Ala.1993). This Court has also stated that “the purpose of § 6-5-440 is to prevent a party from having to defend against two suits in different courts at the same time brought by the same plaintiff on the same cause of action.” L.A. Draper & Son, Inc. v. Wheelabrator-Frye, Inc., 454 So.2d 506, 508 (Ala.1984).

This Court has held that the application of § 6-5-440 is guided by “whether a judgment in one suit would be res judicata of the other.” Sessions v. Jack Cole Co., 276 Ala. 10, 12, 158 So.2d 652, 654-55 (1963). “Where there is no question as to the jurisdiction of the court or as to the identity of the parties, the test for determining [the applicability of the doctrine of res judicata] is whether the issues in the two suits are the same and whether the same evidence would support a recovery in both suits.” Sessions, 276 Ala. at 13, 158 So.2d at 655; see also Equity Res. Mgmt., Inc. v. Vinson, 723 So.2d 634, 637 (Ala.1998) (holding that for res judicata purposes the cause of action is the same when “substantially the same evidence would support a recovery in both actions”). “The doctrine of res judicata applies not only to the exact legal theories presented in the prior action, but to ‘all legal theories and claims arising out of the same nucleus of operative facts.’ ” Ex parte LCS Inc., 12 So.3d 55, 58 (Ala.2008) (quoting Old Republic Ins. Co. v. Lanier, 790 So.2d 922, 928 (Ala.2000)). “A difference in the element of damages is not grounds for distinguishing two causes of action for res judi-cata purposes.” Robinson v. Holley, 549 So.2d 1, 2 (Ala.1989).

In the present case, the issues of fact and law in the tort claims in the Mobile Circuit Court are substantially different from the issues of fact and law in the declaratory-judgment action in the Clarke Circuit Court, and the evidence necessary to support or refute claims that Coale wrongfully interfered with the Chie-palichs’ efforts to remove and sell timber from their property is substantially different from the evidence necessary to support or refute a claim that an easement across Coale’s property exists. In the “third-party complaint” filed in the Mobile Circuit Court, in addition to alleging that an easement exists that allows the Chiepa-lichs to access their property using the old settlement road, the Chiepalichs make the following factual allegations: (1) Before the events underlying this action, Coale had acknowledged in writing that the Chiepalichs had a right to use the old settlement road; (2) in the mid-1980s, Coale sought a legal opinion as to whether he had the right to interfere with the adjacent landowners’ use of the old settlement road and was advised that he could not interfere with their use of the road; (3) in September 2004 and again in August 2005, two hurricanes felled a substantial amount of timber on their property; (4) in December 2005, they notified Coale that they intended to use the old settlement road to remove the fallen timber from the property; (5) Coale refused to allow access to the property via the old settlement road even though he knew that the easement existed; (6) although the Chiepalichs had negotiated with a third party to remove and sell the fallen timber, the contract for the sale of the timber was not consummated solely because of the inability of the third party to gain access to the timber by way of the old settlement road; and (7) the Chiepalichs suffered a total loss of the value of the timber as a result of Coale’s refusal to allow access to the Chiepalichs’ property via the old settlement road.

These additional allegations in the complaint filed in Mobile Circuit Court involve mostly events that occurred after the complaint was filed in the Clarke Circuit Court; they potentially give rise to new causes of action; and they do not relate solely to the computation of damages. Under Rule 15(d), Ala. R. Civ. P., the filing of a supplemental pleading setting forth events that have occurred since the date of the complaint is optional. Therefore, claims based on those events are not claims that should have been brought in an earlier case under the doctrine of res judi-cata. See Manning v. City of Auburn, 953 F.2d 1355, 1360 (11th Cir.1992) (applying the federal counterpart to Rule 15(d), Ala. R. Civ. P., and holding that, for res judica-ta purposes, claims that “could have been brought” in an earlier action are claims in existence at the time the original complaint was filed or claims that were actually asserted in the earlier action, not claims that arise after the original complaint was filed in the earlier action).

Although the Chiepalichs’ tort claims in the Mobile Circuit Court may be barred if the Clarke Circuit Court holds that an easement does not exist, a finding by the Clarke Circuit Court that an easement does exist would not be conclusive of and operate as a bar to the tort claims in the Mobile Circuit Court. The evidence necessary to support a recovery in each action is substantially different. The tort claims require proof of additional elements that are not material to deciding whether an easement exists. A judgment in the action in the Clarke Circuit Court would not necessarily be res judicata as to the action in the Mobile Circuit Court; thus, the Mobile Circuit Court’s dismissal of the Chiepalichs’ claims against Coale based on § 6-6-440, Ala.Code 1975, was improper.

Conclusion

Based on the foregoing, we reverse the Mobile Circuit Court’s judgment and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and WOODALL, SMITH, PARKER, and SHAW, JJ., concur.

      . Alleging that an easement existed in their favor, the three theories the Chiepalichs advanced in support of the easement in the Clarke Circuit Court were prescription, implication, and necessity.

      . Compare Walls v. State Farm Mut. Auto Ins. Co., 984 So.2d 412, 414 (Ala.2007) (setting forth the elements of intentional interference with business relations), SouthTrust Bank v. Donely, 925 So.2d 934, 939 (Ala.2005) (setting forth the elements of conversion), Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 679-80 (Ala.2001) (setting forth the elements of negligence and wantonness), and Borland v. Sanders Lead Co., 369 So.2d 523, 529-30 (Ala.1979) (setting forth the elements of trespass and nuisance), with Hereford v. Gingo-Morgan Park, 551 So.2d 918, 921 (Ala.1989) (setting forth the elements of easement by prescription, easement by implication, and easement by necessity).


author: STUART, Justice.

text:
    STONEMOR ALABAMA, LLC, and StoneMor Alabama Supply Subsidiary, Inc. v. Michelle SUMMERS.
    1080443.
    Supreme Court of Alabama.
    Oct. 16, 2009.

      C. Lee Reeves and Anthony R. Smith of Sirote & Permutt, P.C., Birmingham, for appellants.
    Richard E. Flowers, Columbus, Georgia; and Richard L. Cross, Jr., of Cross Law Firm, LLC, Phenix City, for appellee.
   STUART, Justice.

Michelle Summers sued StoneMor Alabama, LLC, and StoneMor Alabama Supply Subsidiary, Inc. (hereinafter referred to collectively as “StoneMor”), affiliated companies that jointly own and operate Lakeview Memory Gardens, a cemetery in Phenix City, alleging conversion, negligence, and the tort of outrage after Stone-Mor removed a stone memorial bench Summers had had installed on the grave of her deceased husband. StoneMor thereafter moved the trial court to compel Summers to pursue her claims in arbitration pursuant to an arbitration clause in a burial contract she had entered into with StoneMor. The trial court denied that motion, and StoneMor appeals. We reverse and remand.

I.

On July 20, 2007, one day after her husband Jerry died in an automobile accident, Summers entered into a contract with StoneMor pursuant to which she purchased two burial plots at Lakeview Memory Gardens, along with perpetual care for those plots and funeral services for Jerry, for $3,490. That contract contained the following arbitration clause:

“Arbitration: If there is any dispute, concerning this agreement or any other matters relating to goods or services purchased from seller, purchaser or seller may elect to have the dispute resolved by arbitration according to the rules of the American Arbitration Association (‘AAA’) then in effect, unless otherwise restricted by law. If purchaser wishes to obtain a copy of these rules, purchaser may contact the AAA at 1-800-778-7879 or www.adr.org. If arbitration is chosen, neither purchaser nor seller will have the right to litigate the claim(s) in court or have a trial before a judge or jury. The arbitration will be coriducted on an individual basis, and not as part of a common or class action. If the appointed arbitrator or panel of arbitrators should award any damages, those damages will be limited to actual and direct damages only and will not include consequential, punitive, exemplary, or treble damages.
“Purchaser and/or seller may hire legal counsel, but legal counsel is not required. Purchaser and seller must each pay the fees and costs of their own counsel, except as otherwise awarded by arbitrator. All expenses of the arbitration, including the arbitrator’s fees, will be shared equally by purchaser and seller, except as otherwise awarded by the arbitrator.
“Any award ordered by the arbitrator will be final, binding, nonappealable and judgement may be entered on it in any court having jurisdiction. This agreement is made in connection with a transaction in interstate commerce, and the provisions of this section are made under the Federal Arbitration Act, 9 U.S.C. §§ 1-16. The arbitrator will have no power to vary or modify any provisions of this arbitration agreement.”

(Emphasis in original.)

At the time Summers purchased the plots at Lakeview Memory Gardens, she declined to purchase from StoneMor a stone marker or stone memorial bench for her husband’s grave site; instead, Summers purchased those items from a third party. Summers alleges that that third party then paid StoneMor the appropriate fees and had those items installed on the grave site on her behalf. Shortly after the installation of the bench and the marker, and without giving notice to Summers, StoneMor apparently removed the stone memorial bench from the grave site.

On July 29, 2008, Summers sued Stone-Mor, alleging that StoneMor had converted the stone memorial bench, that Stone-Mor was negligent in removing the stone memorial bench, and that StoneMor’s conduct in this case was outrageous and had caused her severe emotional distress. On August 28, 2008, StoneMor moved the trial court to compel arbitration in the case, submitting evidence that the contract Summers had entered into with StoneMor contained an arbitration clause and that the transaction between the parties affected interstate commerce. On November 25, 2008, the trial court denied StoneMor’s motion. StoneMor then filed this appeal.

II.

Our standard of review of a ruling denying a motion to compel arbitration is well settled:

“ ‘This Court reviews de novo the denial of a motion to compel arbitration. Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala.2000). A motion to compel arbitration is analogous to a motion for a summary judgment. TranSouth Fin. Corp. v. Bell, 789 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction affecting interstate commerce. Id. “[A]fter a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (opinion on application for rehearing).’ ”

Elizabeth Homes, L.L.C. v. Gantt, 882 So.2d 313, 315 (Ala.2003) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000)).

III.

In conjunction with its August 28, 2008, motion to compel arbitration, Stone-Mor submitted to the trial court a copy of the contract signed by Summers containing an arbitration clause, quoted supra, as well as evidence indicating that the transaction that was the subject of the contract affected interstate commerce in at least the following two ways: (1) a portion of the money Summers paid StoneMor was designated for perpetual care of the two cemetery plots she purchased and had been placed in a trust fund managed by a company in Tennessee, and (2) the cemetery grounds are maintained using equipment manufactured and purchased outside Alabama. This evidence of the existence of “a contract calling for arbitration and [proof] that the contract evidences a transaction affecting interstate commerce” therefore shifted the burden to Summers to present some evidence indicating that the arbitration clause is not valid or that it does not apply to the dispute in question. Elizabeth Homes, 882 So.2d at 315. On appeal, Summers does not dispute the validity of the arbitration clause; rather, she argues that her dispute with StoneMor is outside the scope of that clause. We disagree.

The crux of this dispute is whether StoneMor was authorized to remove the stone memorial bench Summers had installed on her deceased husband’s grave site. Summers maintains that the stone memorial bench was installed in compliance with StoneMor’s rules and regulations and that, accordingly, StoneMor was not authorized to remove it, while Stone-Mor argues that it properly removed the bench because, it says, Summers breached their contract by having the stone memorial bench installed in a manner that violated the rules and regulations of the cemetery, which, StoneMor says, were incorporated into that contract by reference.

The arbitration clause in the contract between Summers and StoneMor states that it applies to “any dispute[ ] concerning this agreement or any other matters relating to goods or services purchased from seller .... ” In Serra Chevrolet, Inc. v. Hock, 891 So.2d 844, 847 (Ala.2004), we noted that “[t]his Court has repeatedly stated ‘ “that the words ‘relating to’ in the arbitration context are given a broad construction.” ’ ” (Quoting AmSouth Bank v. Dees, 847 So.2d 923, 932 (Ala.2002), quoting in turn Karl Storz Endoscopy-America, Inc. v. Integrated Med. Sys., Inc., 808 So.2d 999, 1013 (Ala.2001) (emphasis omitted).) Among the goods and services purchased by Summers from StoneMor was perpetual care of the two burial plots she purchased. StoneMor has argued that the stone memorial bench in question was installed improperly, without the required permission and fees, and on the property of others; accordingly, StoneMor argues, the bench was removed pursuant to its rules and regulations regarding the care and maintenance of the cemetery. We conclude, therefore, that the dispute regarding the removal of the stone memorial bench relates to goods and services that were the subject of the contract between Summers and StoneMor and that that dispute accordingly falls squarely within the scope of the arbitration clause contained in that contract.

IV.

StoneMor submitted evidence to the trial court showing that Summers had signed a contract containing language stating that “[i]f there is any dispute, concerning this agreement or any other matters relating to goods or services purchased from seller, purchaser or seller may elect to have the dispute resolved by arbitration,” as well as evidence indicating that the transaction between them affected interstate commerce. Summers failed to refute that showing with evidence indicating that the arbitration clause in the contract was invalid or that it did not apply to the dispute that did in fact subsequently arise. Accordingly, the trial court erred by denying Stone-Mor’s motion to compel arbitration, and its November 25, 2008, order is hereby reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and LYONS, BOLIN, and MURDOCK, JJ., concur.

      . Summers also argues that we should dismiss StoneMor’s appeal for procedural reasons; first, because, she says, StoneMor failed to specifically reserve the right to appeal in its answer, ánd, second, because this appeal is moot because, she claims, she will be entitled to a default judgment when this case is remanded to the trial court. Summers cites no authority in support of these arguments, however, and what authority exists appears to refute them. Rule 4(d), Ala. R.App. P., explicitly recognizes that “[a]n order granting or denying a motion to compel arbitration is appealable as a matter of right,” and, should StoneMor's appeal be successful, on remand the trial court’s duty will be limited to compelling arbitration, not considering a motion for a default judgment. See Ex parte Queen, 959 So.2d 620, 621 (Ala.2006) (stating that, after a case is remanded, the trial court may enter no judgment other than the judgment directed by the reviewing court).