author: BARNES, J.,

text:
    NATIONAL BANK OF COMMERCE and NBC Capital Corporation, Appellants, v. Justin SHELTON, Appellee. National Bank of Commerce and NBC Capital Corporation, Appellants/Cross-Appellees v. Justin Shelton, Appellee/Cross-Appellant.
    Nos. 2007-CA-01659-COA, 2007-CA-01749-COA.
    Court of Appeals of Mississippi.
    July 28, 2009.
    Rehearing Denied Dec. 1, 2009.

      H. Russell Rogers, attorney for appellants.
    John R. Reeves, John Justin King, attorneys for appellee.
   BARNES, J.,

for the Court.

¶ 1. This appeal concerns a transfer of funds governed by Article 4A of the Uniform Commercial Code (“UCC”). Justin Shelton filed a negligence action against National Bank of Commerce d/b/a NBC Capital Corporation (collectively “NBC”) as a result of electronic transfers of funds from Justin’s account at NBC to the account of W.J. “Sonny” Shelton at NBC. Applying Mississippi Code Annotated section 75-4A-204 (Rev.2002), the circuit court granted Justin’s motion for summary judgment and awarded him $54,611.74 in damages, which included the amount of the transfers, ninety-days’ interest on $2,242.50 (the amount received in transfers ninety days prior to notification) and attorney’s fees. NBC appeals, arguing that the circuit judge: (1) applied the incorrect section of the UCC to the facts of this case; (2) failed to enforce the contractual obligations between Justin and NBC; and, alternatively, (3) failed to apply the statute of repose set forth in the UCC or the general three-year statute of limitations. Justin filed a cross-appeal claiming that the circuit judge erred by awarding Justin interest on the $2,242.50 for only ninety days rather than from the date he notified the bank of the erroneous transfers until the date of refund.

¶ 2. We affirm the trial court’s finding of liability on the part of NBC, albeit on different grounds; however, we reverse and remand on the issue of the interest awarded to Justin and whether the liability of NBC must be reduced by application of the three-year statute of limitations or the UCC’s one-year statute of repose.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 3. On October 2, 1995, Justin opened a checking account with First Federal Bank of Savings — now NBC — in Columbus, Mississippi. In October 1999, Justin International, a company owned by Justin, issued two paychecks to Sonny. The bookkeeper for Justin International, Susan T. Noland, inadvertently deposited those checks into Justin’s account instead of Sonny’s account. Both accounts were held by NBC. When Noland realized the error, she contacted the bank and requested that the funds be transferred from Justin’s account to Sonny’s account. NBC completed the transfer as requested.

¶ 4. However, a computer error by the bank caused the transfer to recur each month. As a result, $747.50 was transferred from Justin’s account to Sonny’s account each month. Justin failed to notice the error until April 2005 — over five years later. Justin notified the bank, and the transfer for April 2005 was credited back to Justin’s account. The mistake resulted in a total transfer of $49,335 from Justin’s account to Sonny’s account.

¶ 5. Justin filed a complaint alleging negligence, gross negligence, and a breach of fiduciary duty on the part of NBC as a result of the transfers. Both NBC and Justin filed motions for summary judgment. Following a hearing, the circuit court denied NBC’s motion for summary judgment. NBC then filed a motion for reconsideration that was denied on August 21, 2007. NBC filed its first notice of appeal on September 19, 2007. On September 20, 2007, summary judgment was granted in favor of Justin. From that ruling, NBC filed its second notice of appeal on October 1, 2007, and Justin filed his cross-appeal. The appeal from the denial of NBC’s motion for summary judgment and the appeal from the granting of Justin’s motion for summary judgment were consolidated for review by this Court.

STANDARD OF REVIEW

¶ 6. The standard of review of an order granting summary judgment is de novo. PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 49(¶ 8) (Miss.2005) (citing Hurdle v. Holloway, 848 So.2d 183, 185(¶ 4) (Miss.2003)). It is well settled that “[a] summary judgment motion is only properly granted when no genuine issue of material fact exists. The moving party has the burden of demonstrating that no genuine issue of material fact exists within the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits.’ ” Id. (quoting M.R.C.P. 56(c)).

I. Whether the trial court erred in applying section 75-4A-204.

¶ 7. This appeal considers Article 4A of the UCC regarding funds transfers, which is codified in Mississippi Code Annotated sections 75-4A-101 to -507 (Rev.2002).

The circuit court found that the facts of this case required the application of Mississippi Code Annotated section 75-4A-204 (Rev.2002) concerning unauthorized payment orders. NBC argues that the circuit court erred because the facts of this case require the application of Mississippi Code Annotated section 75-4A-205 (Rev.2002) concerning erroneous payment orders. Justin responds that the matter is properly controlled by section 75-4A-204; thus, the circuit court did not err.

¶ 8. Section 75-4A-204(a-b) provides:

(a) If a receiving bank accepts a payment order issued in the name of its customer as sender which is (i) not authorized and not effective as the order of the customer under Section 75-4A-202, or (ii) not enforceable, in whole or in part, against the customer under Section 75-4A-203, the bank shall refund any payment of the payment order received from the customer to the extent the bank is not entitled to enforce payment and shall pay interest on the refundable amount calculated from the date the bank received payment to the date of the refund. However, the customer is not entitled to interest from the bank on the amount to be refunded if the customer fads to exercise ordinary care to determine that the order was not authorized by the customer and to notify the bank of the relevant facts within a reasonable time not exceeding ninety (90) days after the date the customer received notification from the bank that the order was accepted or that the customer’s account was debited with respect to the order. The bank is not entitled to any recovery from the customer on account of a failure by the customer to give notification as stated in this section.
(b) Reasonable time under subsection (a) may be fixed by agreement as stated in Section 75-1-204(1), but the obligation of a receiving bank to refund payment as stated in subsection (a) may not otherwise be varied by agreement.

(Emphasis added).

¶ 9. Section 75-4A-205(a-c) provides:

(a)If an accepted payment order was transmitted pursuant to a security procedure for the detection of error and the payment order (i) erroneously instructed payment to a beneficiary not intended by the sender, (ii) erroneously instructed payment in an amount greater than the amount intended by the sender, or (iii) was an erroneously transmitted duplicate of a payment order previously sent by the sender, the following rules apply:
(1) If the sender proves that the sender or a person acting on behalf of the sender pursuant to Section 75-4A-206 complied with the security procedure and that the error would have been detected if the receiving bank had also complied, the sender is not obliged to pay the order to the extent stated in paragraphs (2) and (8).
(2) If the funds transfer is completed on the basis of an erroneous payment order described in clause (i) or (iii) of subsection (a), the sender is not obliged to pay the order and the receiving bank is entitled to recover from the beneficiary any amount paid to the beneficiary to the extent allowed by the law governing mistake and restitution.
(3) If the funds transfer is completed on the basis of a payment order described in clause (ii) of subsection (a), the sender is not obliged to pay the order to the extent the amount received by the beneficiary is greater than the amount intended by the sender. In that case, the receiving bank is entitled to recover from the beneficiary the excess amount received to the extent allowed by the law governing mistake and restitution.
(b) If (i) the sender of an erroneous payment order described in subsection (a) is not obliged to pay all or part of the order, and (ii) the sender receives notification from the receiving bank that the order was accepted by the bank or that the sender’s account was debited with respect to the order, the sender has a duty to exercise ordinary care, on the basis of information available to the sender, to discover the error with respect to the order and to advise the bank of the relevant facts within a reasonable time, not exceeding ninety (90) days, after the bank’s notification was received by the sender. If the bank proves that the sender failed to perform that duty, the sender is liable to the bank for the loss the bank proves it incurred as a result of the failure, but the liability of the sender may not exceed the amount of the sender’s order.
(c) This section applies to amendments to payment orders to the same extent it applies to payment orders.

(Emphasis added).

¶ 10. NBC argues that section 75-4A-204 does not apply as Justin was unable to prove that NBC accepted a payment order from him that was not authorized. We agree with NBC, as Justin did issue the one authorized payment order. However, we do not accept NBC’s claim that the subsequent monthly transfers were erroneously-transmitted duplicates under section 75-4A-205. While the official comments to the UCC were not adopted by our Legislature, “[s]till we look to official comments about uniform laws, when those laws have been adopted all but verbatim by the [Legislature, as the most informed source explaining provisions of the original enactment.” Holifield v. BancorpSouth, Inc., 891 So.2d 241, 248(¶ 28) (Miss.Ct.App.2004). Having found no variation between Mississippi’s version of Article 4A and the model version, we find the official comments of the UCC instructive. The official comments confirm that the error in this case is not the type of transmission error covered by section 75-4A-205:

This section concerns error in the content or in the transmission of payment order. It deals with three kinds of error. Case 1. The order identifies a beneficiary not intended by the sender.... Case 2. The error in the amount of the order.... Case 3. A payment order is sent to the receiving bank, and then, by mistake, the same payment order is sent to the receiving bank again. In Case No. 8, the receiving bank may have no way of knowing whether the second order is a duplicate of the first or is another order.

U.C.C. § 4A-205 emt. 1 (2002) (emphasis added). The transmission at issue in section 75-4A-205 is, thus, a duplicate transmission of a payment order from the sender to the receiving bank, not a duplication of that order by the receiving bank. Neither Justin, nor anyone acting on his behalf, ever “transmitted” a duplicate payment order to NBC so as to bring the case within the provisions of section 75-4A-205. Therefore, neither 75-4A-204, nor section 75-4A-205, are applicable to the facts in this case.

¶ 11. We find, upon our de novo review of the record and of Article 4A of the UCC, that the reason the facts of this case do not fit neatly within either of these sections is the transfers were, in fact, erroneously-executed payment orders, governed by Mississippi Code Annotated section 75-4A-303 (Rev.2002). That section provides in pertinent part:

(a) A receiving bank that ... (ii) issues a payment order in execution of the sender’s order and then issues a duplicate order, is entitled to payment of the amount of the sender’s order under Section 75-4A-402(c) if that subsection is otherwise satisfied. The bank is entitled to recover from the beneficiary of the erroneous order the excess payment received to the extent allowed by the law governing mistake and restitution.

(Emphasis added).

¶ 12. In this case, the receiving bank, NBC, executed the only payment order issued by Justin by transferring $747.50 from Justin’s account into Sonny’s account at the oral request of Justin’s agent, No-land. Thereafter, NBC’s computer system, due to “an entry error” improperly duplicated that payment every month for over five years. The requirements of Mississippi Code Annotated section 75-4A-402(c) (Rev.2002) were satisfied as the funds transfer was completed; therefore, under section 75-4A-303, NBC is entitled to recover from Justin, the sender, the amount of his order — that is, one payment of $747.50. The official comment to UCC section 4A-303 confirms that: “If erroneous execution causes the wrong amount to be paid the sender is not obliged to pay the receiving bank an amount in excess of the amount of the sender’s order.” U.C.C. § 4A-303(1) cmt. 1 (2002). By way of example, the comment continues:

Subsection (a) also applies to duplicate payment orders. Assume Originator’s Bank properly executes Originator’s $1,000,000 payment order and then by mistake issues a second $1,000,000 payment order in execution of the Originator’s order. If Beneficiary’s Bank accepts both orders issued by the Originator’s Bank, Beneficiary’s Bank is entitled to receive $2,000,000 from Originator’s Bank but Originator’s Bank is entitled to receive only $1,000,000 from Originator. The remedy of Originator’s Bank is the same as that of a receiving bank that executes by issuing an order in an amount greater than the sender’s order. It may recover the overpayment from Beneficiary to the extent allowed by the law governing mistake and restitution and in a proper case as stated in Comment 2 may have subrogation rights if it is not entitled to recover from Beneficiary.

Id. at cmt. 3 (emphasis added).

¶ 13. Justin’s failure to discover NBC’s error prevents his recovering interest on the majority of the transfers; it does not make him hable to NBC for the bank’s duplicate payments to Sonny. Mississippi Code Annotated section 75-4A-304 (Rev.2002) provides:

If the sender of a payment order that is erroneously executed as stated in Section 75-4A-303 receives notification from the receiving bank that the order was executed or that the sender’s account was debited with respect to the order, the sender has a duty to exercise ordinary care to determine, on the basis of information available to the sender, that the order was erroneously executed and to notify the bank of the relevant facts within a reasonable time not exceeding ninety (90) days after the notification from the bank was received by the sender. If the sender fails to perform that duty, the bank is not obliged to pay interest on any amount refundable to the sender under Section 75-4A-4.02(d) for the period before the bank learns of the execution error. The bank is not entitled to any recovery from the sender on account of a failure by the sender to perform the duty stated in this section.

(Emphasis added).

¶ 14. This outcome makes sense when one recalls that it was NBC, not Justin, that erroneously duplicated the payment. The computer “entry error” occurred at NBC. In drafting Article 4A of the UCC, “a critical consideration was that the various parties to funds transfers need to be able to predict risk with certainly, to insure against risk, to adjust operational and security procedures, and to price funds transfer services appropriately.” U.C.C. § 4A-102 cmt. (2002). Competing interests of the banks that provide funds-transfer services, the commercial and financial organizations that use those services, and the public interest were thoroughly considered. “The rules that emerged represent a careful and delicate balancing of those interests and are intended to be the exclusive means of determining the rights, duties and liabilities of the affected parties in any situation covered by particular provisions of the Article.” Id. Therefore, we find that the facts of this case are covered by Mississippi Code Annotated sections 75-4A-303 and 75-4A-304. NBC erroneously executed Justin’s payment order and may recover from him only the amount of his order. Justin, having failed in his duty to exercise ordinary care to determine that the order was erroneously executed, is precluded from recovering most of the interest on his refund; he is not, however, liable to NBC for failing to detect the bank’s error.

¶ 15. The result of the judgment is the same as if Mississippi Code Annotated section 75-4A-204 had applied as found by the trial judge: Justin is entitled to a refund of the amount erroneously debited from his account; but he is granted interest only on funds transfers made within ninety days of his notifying NBC of its error. This Court, therefore, affirms the trial court’s finding of liability on the part of NBC, albeit on different grounds.

¶ 16. However, we must reverse and remand on the issue of computation of the interest by the trial judge. Justin, in his cross-appeal, asserts that he was entitled to interest on $2,242.50 of the $49,335 from the date of NBC’s receipt of his notification of the unauthorized transfers (January 2005) until the date of refund. We agree. Although the trial court correctly noted that interest could only be applied to the funds received ninety days from the notification of the error— $2,242.50, the trial judge incorrectly computed the interest to be $44.23, which is only ninety-days’ worth of interest on the $2,242.50. Section 75-4A-204 states that the bank “shall pay interest on the refundable amount calculated from the date the bank received payment to the date of the refund.” Miss.Code Ann. § 75-4A-204(a) (emphasis added). Although we find that section 75-4A-204 is not.applicable in this case, the computation of interest is the same for 75-4A-304. That section provides that the bank is not obligated to pay interest “on any amount refundable to the sender under Section 75-4A-402(d) for the period before the bank learns of the execution error.” Miss.Code Ann. § 75-4A-304. It does not state that only ninety-days’ interest is allowed. Rather, it is implicit that the interest will accrue until the date of refund. Therefore, we find Justin’s argument on cross-appeal meritorious and reverse and remand for computation of the interest by the trial court consistent with this opinion.

II. Statute of Limitations and Statute of Repose.

¶ 17. NBC’s answer to Justin’s complaint asserted as an affirmative defense “that in addition to the provisions set forth in Title 75 of the Mississippi Uniform Commercial Code, the claim of Justin Shelton is further barred by the applicable three[-]year statute of limitations.” In response to Justin’s motion for summary judgment, NBC did not argue the statute of limitations but instead asserted that Justin’s recovery was limited, by Mississippi Code Annotated section 75-4A-205, to transfers made within ninety days of his notification to the bank of its error. In its motion to reconsider, however, NBC did assert, in conclusion, that: “Even if the court believes that Justin Shelton is entitled to recover for any transfer of funds[,] the recovery period must be limited by the applicable statute of limitations which in this case is three (3) years.” The trial court’s denial of the motion does not address NBC’s belated mention of the statute of limitations.

¶ 18. For the first time on appeal, NBC claims that Justin’s recovery is subject also to the one-year statute of repose contained in Mississippi Code Annotated section 75-4A-505 (Rev.2002). NBC alleges the “jurisdictional attribute” of the statute of repose and claims “plain error” on the part of the trial judge for failing to identify the statute when counsel for NBC had failed to do so. Justin claims “waiver” both to the statute of repose and the statute of limitations.

¶ 19. As we have no explanation from the trial judge as to his denial of reconsideration based on the statute of limitations, we reverse and remand this case to the trial court for consideration of the statute of limitations and the statute of repose, including all arguments as to waiver.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANTS/CROSS-APPELLEES AND ONE-HALF TO THE APPEL-LEE/CROSS-APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . Sonny has admitted his liability for any judgment awarded in favor of Justin. Consequently, a Rule 54(b) certification pursuant to the Mississippi Rules of Civil Procedure was entered on September 27, 2007, determining no just reason to delay the appeal in order to determine any amount owed by Sonny to NBC.

      . "An appellate court may affirm a trial court if the correct result is reached, even if the trial court reached the result for the wrong reasons.” Methodist Hosp. of Hattiesburg, Inc. v. Richardson, 909 So.2d 1066, 1070(¶ 7) (Miss.2005) (citing Puckett v. Stuckey, 633 So.2d 978, 980 (Miss.1993)). Further, the supreme court has stated that:
      The appellate court does not have to affirm a decision on a Rule 56 motion for the same reasons that persuaded the court below to grant the motion. On the contrary, it can find another ground for concluding that the movant is entitled to judgment as a matter of law and ignore any erroneous basis that the district court may have employed.

        Brocato v. Miss. Publishers Corp., 503 So.2d 241, 244 (Miss.1987).

      . As previously noted, the beneficiary of the funds transfers, Sonny, has admitted liability to NBC for the amount owed to Justin.

      . Section 75-4A-505 of the Mississippi Code Annotated provides:
      If a receiving bank has received payment from its customer with respect to a payment order issued in the name of the customer as sender and accepted by the bank, and the customer received notification reasonably identifying the order, the customer is precluded from asserting that the bank is not entitled to retain the payment unless the customer notifies the bank of the customer's objection to the payment within one (1) year after the notification was received by the customer.
      The official comment to UCC section 4A-505 identifies this section as being "in the nature of a statute of repose for objecting to debits made to the customer’s account” and indicates that the section is applicable to refunds required by section 4A-303. U.C.C. § 4A-505 cmt. (2002).

      . In support, NBC cites a decision of the New York Court of Appeals on a certified question from the United States Court of Appeals for the Second Circuit. See Mendes Regatos v. N. Fork Bank, 431 F.3d 394 (2nd Cir.2005).


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Michael A. THOMPSON, Appellant, v. RIZZO FARMS, INC., Appellee.
    No. 2007-CA-01621-COA.
    Court of Appeals of Mississippi.
    Sept. 1, 2009.
    Rehearing Denied Dec. 8, 2009.
    Certiorari Denied Feb. 11, 2010.

      J. Kirkham Povall, S. Todd Jeffreys, W. Hunter Nowell, attorneys for appellant.
    Edward J. Currie, Frank F. Farmer, attorneys for appellee.
    Before KING, C.J., GRIFFIS and MAXWELL, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Bolivar County Sheriffs Deputy Michael Thompson filed suit against Rizzo Farms, Inc., based on personal injuries that Deputy Thompson sustained in a car wreck with Rizzo’s employee, Rodney Brown. The Bolivar County Circuit Court jury found in favor of Rizzo. Deputy Thompson now appeals and argues that: (1) the trial court erred when it denied his motion for a directed verdict and a proposed jury instruction based on negligence per se; (2) the jury was biased; and (8) the trial court applied an incorrect standard of care for comparative negligence when it did not require Rizzo to show that Deputy Thompson acted with reckless disregard. We find no error and affirm.

FACTS

¶ 2. On August 28, 2002, Deputy Thompson left the Bolivar County Sheriffs Department (“Sheriffs Department”) to assist another officer after the officer called for backup. The call for backup was canceled prior to the accident, but Deputy Thompson claimed that he did not hear the cancellation over the police radio. Deputy Thompson testified that his lights and sirens were activated at the time of the accident, but this was disputed by other witnesses.

¶ 3. While traveling east on Highway 8, Deputy Thompson encountered a heavy-duty pickup truck and Brown’s truck. Brown was acting within the course and scope of his employment with Rizzo at this time. Deputy Thompson checked the passing lane for oncoming traffic, accelerated to 65 or 70 miles per hour, by his estimation, and first attempted to overtake the heavy-duty pickup truck, and then Brown’s truck. Deputy Thompson claims that after he began to overtake the trucks, Brown began a left turn into Brown’s driveway. Brown claims that the passing lane was clear when he began his turn. Deputy Thompson’s car collided with Brown’s truck as Brown entered his driveway.

ANALYSIS

1. Did the trial court err when it denied Deputy Thompson’s motion for a directed verdict and a proposed jury instruction based on negligence per se?

¶ 4. Deputy Thompson argues that Brown violated Mississippi Code Annotated section 63-3-707 (Rev.2004); therefore, the trial court erred by denying his motion for a directed verdict and a jury proposed instruction that stated Brown was negligent per se. Rizzo claims that Brown did not violate section 63-3-707 and that Deputy Thompson proximately caused the collision.

¶ 5. The supreme court has stated:

Denials of peremptory instructions, motions for [a] directed verdict, and motions for judgment notwithstanding the verdict each challenge the legal sufficiency of the evidence presented at trial. They are, therefore, reviewed under the same standard.... Under this standard, [the appellate court] will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgement might have reached different conclusions, affirmance is required.

Cmty. Bank, Ellisville, Miss. v. Courtney, 884 So.2d 767, 772(¶ 9) (Miss.2004) (citations and quotations omitted).

¶ 6. The supreme court has defined negligence per se as a “breach of a statute or ordinance [that] renders the offender liable in tort without proof of a lack of due care.” Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 796 (Miss.1995). “In order for the doctrine of negligence per se to apply, the plaintiff must show that he is a member of the class that the statute was designed to protect and that the harm he suffered was the type of harm which the statute was intended to prevent.” Thomas v. McDonald, 667 So.2d 594, 597 (Miss.1995) (citations omitted). “When a statute is violated, the injured party is entitled to an instruction that the party violating is guilty of negligence, and if that negligence proximately caused or contributed to the injury, then the injured party is entitled to recover.” Id. at 596 (citations omitted).

¶ 7. Deputy Thompson argues that Brown was negligent per se because he violated section 63-3-707, which states in part:

No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety and then only after giving a clearly audible signal by sounding the horn if any pedestrian may be affected by such movement or after giving an appropriate signal in the manner provided in this article in the event any other vehicle may be affected by such movement.

Deputy Thompson argues that if Brown had looked in his rearview or side mirror, as he commenced his left-hand turn, then he would have seen that Deputy Thompson and the heavy-duty pickup truck were behind him. Both parties agree that there are no hills or curves on the highway in this area.

¶ 8. Brown testified that he did look in the side mirror before he made his turn and that he did not see Deputy Thompson in the left-hand lane behind him; however, he could not remember if he saw the heavy-duty pickup truck behind him. Brown stated that he did not know how many seconds had elapsed between when he looked in his side mirror and made his turn, but that it all occurred in “one motion.”

¶ 9. Deputy Thompson’s expert, Brett Alexander, opined that Deputy Thompson would have been in the left-hand lane prior to Brown beginning his turn left. His opinion was based on his estimates of Deputy Thompson’s and Brown’s speeds and his estimate of the distance between them when Deputy Thompson began to pass the heavy-duty pickup truck. However, his opinion was not supported by any eyewitness testimony.

¶ 10. Jeffery West, a rural mail carrier, had pulled his vehicle onto the shoulder of the road and was re-entering the road as the accident occurred. West was traveling west toward Deputy Thompson and Brown. West was facing Brown and was able to see the accident as it occurred. He testified that he saw Brown with his blinker on, and out of nowhere, Deputy Thompson struck Brown. He stated that he could see only the heavy-duty pickup truck and Brown’s truck, until Deputy Thompson appeared right beside the heavy-duty pickup truck. West estimated that Deputy Thompson was going 85 miles per hour. West testified that Brown had begun his turn when West saw Deputy Thompson. West stated that he did not see Deputy Thompson’s blue lights activated at this time.

¶ 11. The driver of the heavy-duty pickup truck, Jerry Jackson, testified that Brown had signaled for the left turn, slowed down, and had begun his left turn when Deputy Thompson began to pass. Jackson also stated that he did not see Deputy Thompson’s blue lights on at this time.

¶ 12. Deputy Thompson argues that a motorist is “charged with seeing that which [he] should have seen.” Campbell v. Schmidt, 195 So.2d 87, 89 (Miss.1967). In Campbell, the defendant admitted that she failed to look both ways before she proceeded through an intersection. Id. at 88. Here, Brown testified that he did look in his side mirror as he prepared to turn left and that he did not see Deputy Thompson. Brown’s testimony was supported by West who said that Brown had already begun his turn when West saw Deputy Thompson for the first time.

¶ 18. There was a factual dispute about whom initiated his move first, Brown or Deputy Thompson, and about what Brown should have seen given the differences in their speeds. This was an issue for the jury to decide. Considering the evidence in the light most favorable to Rizzo, we conclude that the trial court properly denied both Deputy Thompson’s motion for a directed verdict and the proposed jury instruction based on negligence per se.

2. Was the jury was biased?

¶ 14. Deputy Thompson claims that three jurors were not truthful during voir dire about whether they or a family member had previous contact with Deputy Thompson or other employees of the Sheriffs Department. Rizzo contends that Deputy Thompson did not prove that any of the three jurors failed to respond truthfully to relevant, direct, and unambiguous questions during voir dire as required under Odom v. State, 355 So.2d 1381, 1383 (Miss.1978).

¶ 15. Where a prospective juror fails to respond to a question during voir dire, upon motion for a new trial, the trial court should determine whether the question was: “(1) relevant to the voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited.” Id. If so, “the court should then determine if prejudice to the defendant in selecting the jury reasonably could be inferred from the juror’s failure to respond.” Id. If prejudice could reasonably be inferred, then the trial court shall order a new trial. Id. A trial court’s judgment about whether a jury is fair and impartial will not be disturbed unless it appears clearly that it is wrong. Id.

¶ 16. During voir dire, the trial court asked the jurors if anyone knew any of the potential witnesses. Counsel for Deputy Thompson asked the potential jurors the following:

Thinking back, has anyone thought about either yourself or a family member who might have been involved in an incident or a situation where Officer Thompson, either working alone or with someone else in Bolivar County, may have had to, for instance investigate you or your family member for some kind of alleged problem?

A. Rachel Ramiz

¶ 17. During a post-trial hearing Ramiz acknowledged that she knew her sister, Jessica Ramiz, had been arrested once by the Sheriffs Department, but she denied knowing that Deputy Thompson was the arresting officer in March 2004. Deputy Thompson’s counsel asked Ramiz why she did not speak up during voir dire about this knowledge, and she replied that she only recalled being asked if she knew Deputy Thompson. Ramiz stated again that she did not know Deputy Thompson arrested her sister.

¶ 18. Ramiz also acknowledged that her cousin, Terry Ramiz, had been arrested, but she said she did not know whether he was arrested by the Sheriffs Department or the Rosedale Police Department. She knew he was held at the Bolivar County Correctional Facility. Ramiz denied knowing that Deputy Thompson investigated the allegations against Terry. She stated that she was not close to Terry and that she did not know why or when he was arrested. Deputy Thompson’s counsel asked Ramiz why she did not speak up during voir dire about this knowledge, and she replied that she must not have understood that she was being asked about a cousin’s arrest history.

¶ 19. Deputy Thompson argues that all arrests should have been disclosed in response to his question about whether potential jurors thought of a family member who might have been involved in an incident or a situation where Deputy Thompson, either working alone or with someone else in Bolivar County, may have investigated them. Juror Ramiz did not disclose the arrests of her relatives because she said she had no reason to associate them with Deputy Thompson.

¶ 20. During the post-trial hearing, Ramiz stated that she did not know Deputy Thompson was involved in her sister’s arrest two and a half years before this trial or that he had investigated her cousin. She did not even know what department had arrested her cousin. She did not have any personal knowledge about the details of her sister’s arrest. Based on her testimony at the hearing, the trial court correctly found that Ramiz lacked substantial knowledge of the information sought to be elicited, because she did not know of Deputy Thompson’s involvement in either of these incidents. Deputy Thompson should have specifically asked the question he apparently wanted answered — that being whether anyone had a family member that had been arrested or investigated by the Sheriff’s Department. This issue is without merit.

B. Chedra Bolden

¶21. Chedra Bolden acknowledged that she knew her cousin, Centrea Bolden, had served time at the penitentiary, but she claimed that she was unaware that Centrea was arrested by one of Deputy Thompson’s witnesses, Chief Deputy Charles Gilmer.

¶ 22. Bolden also acknowledged that her cousin, Jacqueline Bolden, had been arrested. Bolden did not know when her cousin was arrested or what department had arrested her.

¶ 28. Deputy Thompson has not shown that Bolden answered any voir dire questions dishonestly. The trial court asked whether any of the potential jurors knew the potential witness Chief Deputy Gilmer. While Bolden did not know Chief Deputy Gilmer, unbeknownst to her, one of her cousins was arrested by him. Further, Deputy Thompson did not present any evidence of a situation in which he investigated or arrested Bolden or a member of her family. This issue is without merit.

C. Leon Hollaman

¶ 24. Leon Hollaman was arrested for forgery by one of Deputy Thompson’s potential witnesses, Deputy Frazier Nash. Deputy Nash was not called as a witness during the trial. Hollaman had moved out of state after the trial but before the post-trial hearing; therefore, he was unable to be served with a subpoena. Accordingly, he was not present at the hearing concerning jury bias.

¶ 25. The trial court asked the potential jurors if anyone knew the potential witness Deputy Nash. The question was relevant to the voir dire examination and unambiguous, but Deputy Thompson fails to show that Hollaman had substantial knowledge of the information sought to be elicited. Hollaman was arrested by Deputy Nash in September 29, 2003, three years before this trial in September 2006. Deputy Nash did not testify at Deputy Thompson’s trial; therefore, Hollaman did not have an opportunity to recognize Deputy Nash. Deputy Thompson argues jury bias based upon Hollaman’s alleged recognition of Deputy Nash’s name from a single arrest that occurred three years prior to trial without any testimony by Hollaman to that effect. We find that Deputy Thompson did not show that Hollaman had substantial knowledge. This issue is without merit.

3. Did the trial court apply an incorrect standard of care for comparative negligence when it did not require Rizzo to show that Deputy Thompson acted with reckless disregard?

¶ 26. Deputy Thompson argues that the trial court misapplied the law of comparative negligence and that Rizzo should be required to show that he acted with reckless disregard before comparative negligence would apply because of protections provided by the Mississippi Tort Claims Act (MTCA). Rizzo responds that the MTCA does not deprive a defendant of a simple-negligence defense when a police officer files a personal-injury suit.

¶ 27. “In matters that are questions of law, this Court employs a de novo standard of review and will only reverse for an erroneous interpretation or application of the law.” Morgan v. West, 812 So.2d 987, 990(¶ 8) (Miss.2002).

¶28. Mississippi Code Annotated section 11—46—9(l)(c) (Supp.2008) provides that:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury.

This section would protect Deputy Thompson from liability in a suit by Brown against Deputy Thompson by requiring Brown to show that Deputy Thompson was acting in reckless disregard at the time of the injury. However, the question before this Court is what Rizzo must show when defending a personal-injury suit brought by Deputy Thompson.

¶ 29. Deputy Thompson argues that it was error to apportion any fault to him unless he acted with reckless disregard because section 11 — 46—9(l)(c) protects him from liability until his actions reach this level. We disagree.

¶ 30. Subsection ll-46-l(a) (Rev.2002) defines a claim as “any demand to recover damages from a governmental entity as compensation for injuries.” (Emphasis added). Here, Deputy Thompson’s suit against Rizzo — a non-governmental entity — is not a claim as defined under section 11-46-1. Therefore, Deputy Thompson is not afforded the protection provided by section 1146-9(l)(c).

¶ 31. Furthermore, the supreme court has recognized that in the context of Mississippi Code Annotated section 85-5-7 (Supp.2008) — which addresses joint and several liability for damages caused by two or more persons — that:

Fault and liability are not synonyms. “Fault” is defined by § 85-5-7 as “an act or omission.” Immunity from liability does not prevent an immune party from acting or omitting to act. Rather, immunity shields that party from any liability stemming from that act or omission. There is nothing logically or legally inconsistent about allocating fault but shielding immune parties from liability for that fault. And there is no reason to imagine that the Legislature did not intend fault to be allocated against immune parties, insofar as that allocation can be of no detriment to those parties.

Mack Trucks, Inc. v. Tackett, 841 So.2d 1107, 1114(¶ 26) (Miss.2003). Subsection ll-46-9(l)(c) limits liability, not fault, when a plaintiff files suit against a governmental entity. We see no reason why it should prohibit the allocation of fault when an employee of the governmental entity files suit against a non-governmental entity-

¶32. The Legislature determined that it was necessary to protect governmental entities and their employees from liability for the “performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury.” Miss.Code Ann. § 11 — 46—9(l)(c). However, the Legislature has not burdened non-governmental entities and private persons with liability for personal injuries sustained by an employee of a governmental entity when that person’s actions fall somewhere in between simple negligence and the “reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury.” Miss.Code Ann. § 11 — 46—9(l)(e). We do not do so today. Accordingly, we affirm the ruling of the trial court.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . Deputy Thompson was driving an estimated seventy to eighty-five miles per hour, while Deputy Thompson's expert estimated that Brown was traveling ten miles per hour.


author: ISHEE, J.,

text:
    Howard Monteville NEAL, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-01295-COA.
    Court of Appeals of Mississippi.
    Nov. 10, 2009.
    Rehearing Denied Feb. 9, 2010.
    James W. Craig, Justin L. Matheny, Jackson, attorneys for appellant.
    Office of Attorney General by John R. Henry, attorney for appellee.
    Before MYERS, P.J., ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court.

¶ 1. On February 2, 1982, following a trial in the Circuit Court of Lamar County, Mississippi, on a change of venue from Lawrence County, Howard Neal was convicted and sentenced to death for the January 25, 1981, capital murder of Amanda Joy Neal. Following the United States Supreme Court decision Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), in which the Supreme Court held the execution of mentally retarded individuals violated the Eighth Amendment to the United States Constitution, Neal sought permission from the Mississippi Supreme Court to petition the circuit court for removal of his death sentence. The supreme court granted his request, and remanded the case to determine whether or not Neal was mentally retarded for purposes of Atkins. After multiple evaluations, psychology experts determined that Neal was, in fact, mentally retarded for purposes of Atkins.

¶2. Thereafter, on July 23, 2007, the State filed its own motion asking the court to vacate Neal’s sentence of death and resentence him to life without parole. This motion was subsequently followed by Neal’s request to be resentenced to life with the possibility of parole. On August 14, 2007, the circuit court entered an order vacating Neal’s death sentence and scheduled a resentencing hearing.

¶ 3. On June 27, 2008, Neal was sentenced to serve a sentence of life in the custody of the Mississippi Department of Corrections without the possibility of parole, pursuant to Mississippi Code Annotated section 99-19-107 (Rev.2007). This section provides that:

In the event the death penalty is held to be unconstitutional by the Mississippi Supreme Court or the United States Supreme Court, the court having jurisdiction over a person previously sentenced to death shall cause such person to be brought before the court and the court shall sentence such a person to imprisonment for life, and such person shall not be eligible for parole.

Miss.Code Ann. § 99-19-107. The court, after having read all motions, documents, and correspondence pertaining to the matter, found that Neal’s case met all criteria of the statute and sentenced him to life without the possibility of parole.

¶4. Aggrieved by this decision, Neal now appeals asserting that the Ex Post Facto and Due Process Clauses of the United States and Mississippi Constitutions bar a sentence of life without the possibility of parole because such sentence was not a viable sentence at the time of his crime or conviction. Finding no error, we affirm.

DISCUSSION

¶ 5. Neal’s only issue deals with the sentencing options available to the circuit court after his death sentence was vacated. Neal argues that no statute in effect at the time of his conviction authorized a sentence of life without parole, and his sentence violates his constitutional right against ex post facto punishment under Article 3, Section 16 of the Mississippi Constitution of 1890 and Article I, Section 10 of the United States Constitution. His argument is essentially the same argument put forth by Ronald Chris Foster in Foster v. State, 961 So.2d 670 (Miss.2007). He asserts that the only option available to the resentencing court was the imposition of life with the possibility of parole under the version of the capital-murder statute in effect at the time the crime was committed. See Miss.Code Ann. § 97-3-21 (Supp.2008).

¶ 6. Neal’s contention, just as Foster’s, misstates the applicable law. Mississippi Code Annotated section 99-19-107 was first enacted in 1977. Therefore, at the time Neal committed the crime in 1981, he was subject to section 99-19-107 , stating that:

[T]he court having jurisdiction over a person previously sentenced to death shall cause such person to be brought before the court and the court shall sentence such person to imprisonment for life, and such person shall not be eligible for work release or parole.

“Where this statute governs a defendant’s sentence, it plainly authorizes a sentence of life without parole.” Foster, 961 So.2d at 672(¶ 7). “The language is clear; it intends to provide for an alternative sentence for a person whose death penalty has been deemed unconstitutional.” Id. at (¶ 8). The statute clearly states that no one whose death penalty is ruled unconstitutional may receive life with parole.

¶ 7. Because Neal’s death penalty was found unconstitutional by the United States Supreme Court’s ruling in Atlcins, the application of section 99-19-107 is appropriate. The circuit court correctly applied section 99-19-107 in resentencing Neal. The application of the statute in no way constitutes an ex post facto punishment. Based on the supreme court’s holding in Foster, the circuit court’s judgment resentencing Neal to life without the possibility of parole is affirmed.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF LAMAR COUNTY OF CONVICTION OF CAPITAL MURDER AND SENTENCE TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT THE POSSIBILITY OF PAROLE, WITH THE SENTENCE TO RUN CONSECUTIVELY TO THE CURRENT LIFE SENTENCE THE APPELLANT IS SERVING, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAMAR COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ, CONCUR.

      . Although the Atkins court did not delineate specific standards for diagnosing mental retardation for Eight Amendment purposes, the Mississippi Supreme Court provided guidance in Foster v. State, 848 So.2d 172 (Miss.2003) and Chase v. State, 873 So.2d 1013 (Miss.2004). Read together, the cases mandate that an expert evaluate (1) intellectual functioning; (2) adaptive functioning; (3) onset before the age of 18; and (4) attempts to malinger the tests.

      . Mississippi Code Annotated section 99-19-107 was amended in 1982. The amendment deleted the "work release” portion of the statute.


author: LEE, P.J.,

text:
    Ronald Wayne HENDERSON, Appellant v. Em Pok HENDERSON, Appellee.
    No. 2008-CA-02107-COA.
    Court of Appeals of Mississippi.
    Jan. 19, 2010.

      Blewett W. Thomas, attorney for appellant.
    Nancy E. Steen, attorney for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   FACTS AND PROCEDURAL HISTORY

LEE, P.J.,

for the Court.

¶ 1. On December 4, 2001, Em Pok Henderson and Ronald Wayne Henderson filed a joint complaint for divorce in the Pearl River County Chancery Court. The parties had attached a signed property settlement agreement, wherein the parties agreed to certain matters pertaining to marital property and the amount of alimony Ron would pay to Em per month. The chancellor signed the final decree of divorce on April 23, 2002; however, this decree was never filed in the chancery clerk’s office. The parties were unaware that the final decree had not been filed. Unknown to either party, the complaint for divorce was dismissed on April 12, 2004, for lack of prosecution.

¶ 2. In September 2005, Ron discovered that the case had been dismissed and immediately ceased alimony payments, which he had been making to Em every month since the joint complaint for divorce was filed in December 2001. On November 3, 2005, Ron filed for divorce from Em on the ground of desertion or, in the alternative, irreconcilable differences. On March 3, 2006, Em filed a motion to enter the April 23, 2002, judgment nunc pro tunc. On June 14, 2006, the chancellor entered an order vacating the judgment of dismissal. After a hearing on the matter, the chancellor directed the April 23, 2002, judgment to be entered nunc pro tunc, with the provisions as agreed to by both parties being in full force and effect.

¶ 3. Ron now appeals, asserting the following issue, which we cite verbatim: Did the chancellor err in granting an irreconcilable differences divorce in disregard of the appellant’s filing of a second complaint for divorce? Finding no error, we affirm.

STANDARD OF REVIEW

¶ 4. 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

¶ 5. In his sole issue on appeal, Ron argues that the chancellor erred in granting an irreconcilable differences divorce in disregard of his second complaint for divorce. Ron contends that by filing a second complaint for divorce, he withdrew his consent to the original complaint for divorce pursuant to Mississippi Code Annotated section 93-5-2(5) (Supp.2009). Ron’s argument is misplaced. Consent to an irreconcilable differences divorce can be withdrawn prior to the judgment of divorce. Id. However, Ron failed to do so. The judgment of divorce was entered nunc pro tune, meaning that the judgment was effective from the signed date of April 23, 2002, not from November 10, 2008, which was the date of the order to enter the April 23, 2002, judgment.

¶ 6. Nunc pro tunc relates to a ruling or action previously made or done but for some reason the record of it is defective or omitted. Thrash v. Thrash, 385 So.2d 961, 963 (Miss.1980). “[CJourts may by nunc pro tunc orders supply omissions in the record of what had previously been done, and by mistake or neglect not entered.” Green v. Myrich, 177 Miss. 778, 171 So. 774, 774 (1937). “The later record making does not itself have a retroactive effect but it constitutes the later evidence of a prior effectual act.” Thrash, 385 So.2d at 963-64 (citation omitted). We find no error by the chancellor in entering the prior judgment nunc pro tunc. This argument is without merit.

¶ 7. THE JUDGMENT OF THE PEARL RIVER COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR.


text:
    Billy J. FIELDS, Appellant v. CITY OF CLARKSDALE, Mississippi, Appellee.
    No. 2008-CA-00316-COA.
    Court of Appeals of Mississippi.
    Feb. 9, 2010.

      David Neil McCarty, Jackson, Derek D. Hopson, Clarksdale, Melissa Selman Martin, Drew Mclemore Martin, Jackson, attorneys for appellant.
    Curtis D. Boschert, William Harvey Gresham, Jr., attorneys for appellee.
    Before KING, C.J., ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Billy Fields was terminated from his position as a captain with the Clarksdale Fire Department (Department). He appealed his termination to the Clarksdale Civil Service Commission (Commission), which affirmed the decision. From the Commission’s order, Fields filed his notice of appeal to the Coahoma County Circuit Court. The circuit court dismissed Fields’s appeal, finding that: (1) Fields failed to pay costs with his notice of appeal, and (2) Fields failed to timely request assistance with compelling the Commission to pay costs. Fields appeals and asserts the following alleged errors:

I.Fields was denied due process because the circuit court improperly dismissed his appeal.
II. A mandatory dismissal with prejudice was too harsh of a ruling.
III. The City of Clarksdale (City) unjustly received an advantage in litigation by violating state law.

Finding that the circuit court erred in dismissing Fields’s appeal without giving him notice of the appeal’s deficiencies and allowing him fourteen days to correct those deficiencies, we reverse the judgment of the circuit court and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2007, Fields was a captain with twenty years of experience with the Department. On March 26, 2007, the Board of Mayor and Commissioners of the City of Clarksdale (Board) held a pre-disciplinary hearing regarding an allegation that Fields had disobeyed a direct order from his superior, Fire Chief Mike Robinson. The Board found that Fields was insubordinate and that he should be terminated.

¶ 3. Fields timely appealed the Board’s decision to the Commission, which held a hearing on the matter. The Commission voted to affirm Fields’s termination. The Commission found that Chief Robinson presented Fields with a letter, which informed Fields of a scheduled mandatory appointment for an evaluation at the mental health center. Attached to the letter was an acknowledgment of receipt of the letter. It was clear from the letter that refusal to attend would be a violation of a direct order. Similarly, it was clear that refusal to sign the acknowledgment would be considered insubordination and could result in termination.

¶ 4. Fields refused to sign the acknowledgment, and he again refused to sign after he was given time to reconsider. Thereafter, Assistant Chief Grayson convinced Chief Robinson to give Fields until the following morning to sign the acknowledgment. However, the next morning, Fields again refused to sign it. Fields also failed to attend the scheduled mandatory appointment for an evaluation at the mental health center. The Commission concluded that Fields’s conduct constituted insubordination and was cause for his removal.

¶ 5. On September 7, 2007, following the entry of the Commission’s order, Fields timely filed a notice of appeal with the circuit court. Fields did not pay any costs at the time he filed the notice of appeal. However, in the notice of appeal, Fields requested that the Commission file a certified transcript with the circuit court. In a September 26, 2007, letter, counsel for the Commission advised Fields’s counsel of the estimated costs of the transcript for the appeal. In response, on October 18, 2007, Fields filed a motion requesting that the City pay for the cost of the transcript. The circuit court held a hearing on the matter; the court held that Fields waited too long to request the assistance of the court in securing a transcript, approximately forty-two days after filing his notice of appeal. The circuit court found that Fields’s failure to timely seek assistance from the court constituted abandonment of his appeal, and the court dismissed his appeal with prejudice. Fields timely filed a notice of appeal following the dismissal of his claim.

STANDARD OF REVIEW

¶ 6. This Court has previously noted the following regarding the review of a dismissal for failure to prosecute:

The power to dismiss for failure to prosecute is inherent in any court of law or equity, being a means necessary to the orderly expedition of justice and the court’s control of its own docket. That this Court will not disturb a trial judge’s finding on appeal unless it is manifestly wrong is a doctrine too well known to require citation.

Stuart v. Pub. Employees' Ret. Sys. of Miss., 799 So.2d 886, 888(¶ 8) (Miss.Ct.App.2001) (quoting Walker v. Parnell, 566 So.2d 1213, 1216 (Miss.1990)). The decision of whether to grant such a motion to dismiss is within the trial court’s discretion, and we will not reverse the decision absent an abuse of that discretion. Id. (citing Roebuck v. City of Aberdeen, 671 So.2d 49, 50 (Miss.1996)).

DISCUSSION

¶ 7. Rule 5.05 of the Uniform Rules of Circuit and County Court provides as follows:

In appeals in which the appeal is solely on the record, the record from the lower court or lower authority must be filed with the court clerk within thirty (30) days of filing of the notice of appeal. Provided, however, in cases involving a transcript, the court reporter or lower authority may request an extension of time. The court, on its own motion or on application of any party, may compel the compilation and transmission of the record of proceedings. Failure to file the record with the court clerk or to request the assistance of the court in compelling the same within thirty (30) days of the filing of the written notice of appeal may be deemed an abandonment of the appeal and the court may dismiss the same with costs to the appealing party or parties.

Fields filed his notice of appeal on September 7, and on or about September 26, he learned of the cost of the transcript and that the Commission was under the impression that he was responsible for the cost of the transcript. Fields then waited until October 18, to file a motion with the circuit court requesting that the City pay for the transcript. Based on these facts, the circuit court found that Fields waited forty days before he requested the assistance of the court in compelling the Commission to file the transcript. Pursuant to Rule 5.05, the circuit court found that this exceeded the allowable thirty days and that Fields had abandoned his appeal. The circuit court based its decision to dismiss Fields’s appeal with prejudice wholly on Rule 5.05.

¶ 8. Fields does not argue against Rule 5.05’s applications to his case. Instead, he argues that Rule 5.05 should be complementary to Rule 2(a)(2) of the Mississippi Rules of Appellate Procedure. Rule 2(a)(2) provides in part:

An appeal may be dismissed upon motion of a party or on motion of the appropriate appellate court (i) when the court determines that there is an obvious failure to prosecute an appeal; or (ii) when a party fails to comply substantially with these rules. When either court, on its own motion or on motion of a party, determines that dismissal may be warranted under this Rule 2(a)(2), the clerk of the Supreme Court shall give written notice to the party in default, apprising the party of the nature of the deficiency. If the party in default fails to correct the deficiency within fourteen (14) days after notification, the appeal shall be dismissed by the clerk of the Supreme Court. The attorney for the party in default has the burden to correct promptly any deficiency or to see that the default is corrected by the appropriate official.

This Court has previously found that, with respect to the issue of mandatory or discretionary dismissals, the Mississippi Rules of Appellate Procedure apply to appeals from an agency decision to the circuit court. Wheeler v. Miss. Dep’t of Envtl. Quality Permit Bd., 856 So.2d 700, 704(¶ 14) (Miss.Ct.App.2003) (citing Bowling v. Madison County Bd. of Supervisors, 724 So.2d 431, 442(¶ 51) (Miss.Ct.App.1998)). Accordingly, Fields argues that application of Rule 2(a)(2) to his appeal from the Commission requires that he be given notice of the deficiency and fourteen days to correct it.

¶ 9. In Van Meter v. Alford, 774 So.2d 430, 432(¶ 6) (Miss.2000), Wallace Van Meter was delinquent in filing a designation of record of his appeal from county court to circuit court. Van Meter did not file the designation until forty-three days after filing his notice of appeal, which was also two days after the appellee had filed a motion to dismiss. Id. at 431(¶ 2). On appeal of the circuit court’s granting of the motion to dismiss, the supreme court found that: “Rule 2(a)(2) mandates that, after a motion to dismiss has been filed, the court clerk (the circuit clerk in this instance) officially notify an appellant of deficiencies in his appeal and that the appellant be given fourteen (14) days therefrom to correct any deficiencies.” Id. at 432(¶ 3). The supreme court further found that Van Meter was deprived of due process when his appeal was dismissed without having been given official notice of the deficiencies by the circuit clerk. Id. at (¶ 4). Ultimately, the supreme court reversed the circuit court’s judgment dismissing Van Meter’s appeal and remanded the case to the court. Id.

¶ 10. Under the reasoning set forth in Van Meter, we find that it was in error for the circuit court to have dismissed Fields’s appeal. Under Rule 2(a)(2), Fields was entitled to notice from the circuit clerk of the deficiency in his appeal and fourteen days to correct any deficiency. We do not find that this ruling conflicts with the language of Rule 5.05. The circuit court may still dismiss an appeal for which an appellant has failed to timely provide a record. However, as this Court and the supreme court have recognized, the Mississippi Rules of Appellate Procedure apply to an appeal to circuit court. Mississippi Rules of Appellate Procedure require that an appellant be provided notice from the clerk and fourteen days to correct any deficiency in his appeal. Fields was not given notice by the circuit clerk, and he was not provided fourteen days in which to have the record for his appeal filed. As was the case in Van Meter, this lack of notice and opportunity to remedy the deficiency in Fields’s appeal deprived him of due process.

¶ 11. The judgment dismissing Fields’s case is reversed, and his case is remanded to the circuit court with instructions that the circuit clerk issue the appropriate notice to Fields, informing him of the deficiencies in his appeal, and that Fields be given fourteen days to correct any such deficiencies.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J„ DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Assistant Chief Grayson’s first name is not contained in the record.

      . Rule 2(a)(2) states that the supreme court clerk is to give notice. However, in this case, the circuit court was acting as the appellate court; therefore, the circuit clerk should have notified Fields.

      . Additionally, we note that, under Mississippi Code Annotated section 21-31-71 (Rev.2007), it was the duty of the Commission to "make, certify, and file” the transcript with the circuit court within thirty days of an appellant's notice of appeal. We recognize that the circuit court found that Fields waited forty days to request the court’s assistance in procuring the transcript, and this was the basis for the dismissal. However, it remains that Fields’s appeal was dismissed, in part, because the Commission failed to timely carry out its statutory duty.


author: STUART, Justice.

text:
    Robert S. DOBSON III and Deborah Rhoene Dobson Riel v. Loyd VICK and Elmer Vick.
    1071614.
    Supreme Court of Alabama.
    May 15, 2009.
    Rehearing Denied Aug. 14, 2009.

      Lawrence B. Voit of Silver, Voit & Thompson, Attorneys at Law, P.C., Mobile; Mark E. Spear of Richardson, Spear, Spear & Hamby, Mobile; and Stephen E. Clements, Mobile, for appellants.
    Edward A. Dean, J. Walter Jackson, and Benjamin Y. Ford of Armbrecht Jackson, LLP, Mobile, for appellee Elmer Vick.
   STUART, Justice.

Robert S. Dobson III, as personal representative of the estate of Carrie Vick, deceased (“the Estate”), instituted garnishment proceedings in the Mobile Circuit Court seeking to garnish a debt owed by Elmer Vick to Loyd Vick in order to satisfy a $1,250,000 judgment previously entered by that court against Loyd and in favor of the Estate. The trial court denied the Estate’s request to issue the writ of garnishment. On August 1, 2008, the Estate assigned its interest in the judgment entered against Loyd to Carrie Vick’s three surviving children — Robert S. Dob-son III, Rebecca Runnels, and Deborah Rhoene Dobson Riel — and they subsequently appealed the trial court’s order denying the Estate’s request to issue a writ of garnishment against Elmer to this Court. We reverse and remand.

I.

On May 5, 2005, one day after Carrie Vick filed a petition for divorce against Loyd, seeking to dissolve their 18-year marriage, Loyd shot and killed her at their home in Chickasaw. The Estate subsequently filed a wrongful-death action against Loyd and, following a jury trial, was awarded $1,250,000 plus court costs. Concurrent with that trial, the Estate added Elmer, Loyd’s son from a previous marriage, as a defendant, asserting an unjust-enrichment claim against him; the trial court ultimately entered a $20,000 judgment in favor of the Estate and against Elmer on that claim. The gravamen of that claim was that Loyd had transmitted to Elmer approximately $194,700 that rightfully had belonged to Carrie Vick and that Elmer refused to return those funds to the Estate.

Elmer thereafter satisfied the judgment against him, but, after Loyd failed to do so, the Estate initiated garnishment proceedings against Elmer, alleging that $170,800 Elmer had received from Loyd in March and April 2005 was an unpaid loan and was thus a debt owing to Loyd subject to garnishment. Although both Elmer and Loyd had previously taken the position that Loyd loaned Elmer the $170,800 so that Elmer could construct a house in Fairhope, Elmer now alleges that the $170,800 was actually a gift and that there is accordingly no debt for the Estate to garnish. After receiving briefs on the issue and listening to the argument of counsel, the trial court, on July 11, 2008, denied the Estate’s request to issue the writ of garnishment, without stating its rationale.

II.

The order issued by the trial court denying the Estate’s request to issue a writ of garnishment stated in whole:

“The court having considered the process of garnishment filed against Elmer Vick by the estate of [Carrie Vick], the answer of Elmer Vick, and the briefs and oral argument of all counsel, hereby denies the issuance of the writ of garnishment.”

Thus, even though the trial court had previously heard live testimony from the relevant witnesses while deciding the Estate’s unjust-enrichment claim against Elmer, it apparently did not rely on that testimony or hear any new testimony in deciding the garnishment issue; instead, the trial court relied solely on the parties’ filings and oral argument. “ ‘When reviewing a case in which the trial court sat without a jury and heard evidence in the form of stipulations, briefs, and the writings of the parties, this Court sits in judgment of the evidence; there is no presumption of correctness.’ ” American Res. Ins. Co. v. H & H Stephens Constr., Inc., 939 So.2d 868, 872-73 (Ala.2006) (quoting Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 516 (Ala.2003), and citing Old Southern Life Ins. Co. v. Williams, 544 So.2d 941, 942 (Ala.1989), and Craig Constr. Co. v. Hendrix, 568 So.2d 752, 756 (Ala.1990)). See also Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 871 (Ala.1999) (“The factual submission to the trial judge was entirely upon written materials — pleadings, depositions, interrogatory answers, exhibits — and not on any live testimony. When a trial judge’s ruling is not based substantially on testimony presented live to the trial judge, review of factual issues is de novo.”). This Court is therefore in the somewhat unusual position of reviewing not only the legal issues de novo, but also the facts.

III.

“In a case like this [in which the garnishee denies all indebtedness or liability], the burden of proof is upon the plaintiff to show a debt or liability due from the garnishee to the defendant.” Sun Ins. Co. of New Orleans v. Doster-Northington Drug Co., 164 Ala. 572, 575, 51 So. 414, 414 (1909). Dobson and Riel argue that Elmer was indebted to Loyd for the $170,800, and, in support of that argument, they cite deposition testimony of both Elmer and Loyd in which Elmer and Loyd refer to the transfer of $170,800 from Loyd to Elmer as a “loan.” Elmer, however, cites the same testimony and argues that, regardless of how he viewed the transaction and regardless of how he and Loyd characterized the transaction, Loyd’s testimony demonstrates that Loyd never intended to obligate Elmer to repay the money and that the transfer should accordingly be viewed as a gift. The relevant testimony is recounted below.

On October 20, 2005, before the Estate’s wrongful-death claim against Loyd and its unjust-enrichment claim against Elmer were tried, Elmer sat for a deposition and gave the following testimony:

“Q [Attorney for the Estate]: Mr. Vick, check number ., do you see that?
“A: Yes, sir.
“Q: Dated March 24th of ’05, on that same account number, . Do you see that?
“A: Yes, sir.
“Q: And it’s a check you wrote to yourself for $100,000?
“A: Yes, sir.
“Q: Why did you do that?
“A: It was a loan to me from Dad for me to build a new house.
“Q: Okay. Where are the papers that go along with that loan?
“A: There are no papers. It was verbal.
“Q: All right. And who owns the house?
“A: Ido.
“Q: Just in your name?
“A: Yes, sir.
“Q: And how long have you owned the property?
“A: I bought it last — not this past summer, but this past summer — no, I think we’re in fall now, though we’re not really. It was sometime in the summer of ’04. I don’t remember the exact date.
“Q: So you took money your dad loaned you that he got from the insurance proceeds on the house in Gulf Shores that got blown away with [Hurricane] Ivan and are building a house in Fairhope with it; is that where we’re going?
“[Attorney for Loyd]: Object to the form of the question.
“A: For me. Yeah.
“Q: Okay.
“A: Well, I took money out of his account. I don’t know where it came from. He told me to.
“Q: Mr. Vick, what you’re testifying to is that there are no loan documents, no written documents other than that one check concerning—
“A: No, I think you’ll find another one somewhere.
“Q: Well, I’m talking about loan papers. There are no loan papers evidencing that debt, are there?
“A: Right. No written — nothing.
“Q: Now, you’ve referred to, I think, ‘I’ll find another one somewhere.’ You’re talking about another check?
“A: Uh-huh.
“Q: What do you recall? What other check is relevant to that loan?
“A: There’s another one to go with that for about $70,000.
“Q: Was it after the $100,000?
“A: Yes. You should have a copy of it somewhere.
“Q: Mr. Vick, we’ve shown you a check that you wrote on the Gulf Bank account April 26 of ’05 for $70,800.
“A: Yes, sir.
“Q: And the evidence has been that that’s the same day your dad was meeting with Fred Hardman at the bank about freezing all of his accounts. What discussion did you have with your dad about withdrawing money out of that account before he went down there and met with the banker?
“A: Well, I didn’t know anything about that freezing of accounts. He called me. We had discussed the $170,000 loan, and he told me, he said, Why don’t you go ahead and get that other money and deposit it over in your house account,’ and I did.”

On April 26, 2007, after a judgment had been entered in favor of the Estate on its wrongful-death claim against Loyd, but before a judgment was entered on the Estate’s unjust-enrichment claim against Elmer, Elmer was again deposed and gave the following testimony:

“Q [Attorney for the Estate]: Okay. You testified in your deposition, Mr. Vick, that — I think it was in April — in March and April of ’05 that you cashed a hundred thousand dollar check and a seventy thousand dollar check, and that those checks were loans from your father. Do you recall that testimony?
“A: Uh-huh.
“Q: And that’s a yes?
“A: Yes.
“Q: Okay. And that was true testimony, was it not?
“A: Yes.
“Q: And as I recall your testimony, those loans were to go toward building the house that I guess you occupy now. Is that true?
“A: Yes, sir.
“Q: Have you paid that money back?
“A: No, sir.
“Q: Is there a reason you haven’t paid the money back?
“[Objection and discussion by attorneys.]
“Q: Your testimony is you still owe the money?
“[Attorney for Elmer]: You can answer.
“A: Yes.”

On May 11, 2006, before the trial on the Estate’s wrongful-death claim against him, Loyd gave the following deposition testimony upon questioning by the Estate’s attorney:

“Q: Mr. Vick, let me ask if you’ll look right down here. March 24th, 2005, Elmer wrote a check to Elmer Vick for $100,000?
“A: Right. I remember that.
“Q: And he referenced ‘house,’ correct?
“A: Right, yes.
“Q: And that was a loan from you to Elmer for him to start building a house in Fairhope, wasn’t it?
“A: Yes.
“Q: The $70,000 that Elmer wrote to himself was also a loan from you for him to use building that same house, correct?
“A: Yes.
“Q: Mr. Vick, how much money have you given Elmer over the last three years?
“[Attorney for Elmer]: Object to the form. That’s irrelevant.
“A: I haven’t given any.”

When his own attorney questioned him, Loyd testified as follows:

“Q: Okay. What did you do with the proceeds [$295,000] from the [Gulf Shores] property that you sold to [Carrie Vick’s son] Bobby Dobson?
“A: That was the money that I put into the bank. And then later, whenever all this happened, I had Elmer take it out and put it in a safety deposit box and we’ve used it up now.
“Q: Okay. Was part of the money given to Elmer Vick as a gift or a loan?
“[Attorney for the Estate]: Object to the form.
“A: No that wasn’t part of that. The money that I give to him was what came out of my apartments out there that I sold at Alabama Village [in Prichard].
“Q: Okay. Those were the apartments that you were speaking of that you invested in when you got married to [Carrie Vick]?
“[Attorney for the Estate]: Object to the form.
“A: Right.
“Q: All right. And what was the agreement that you had with Elmer Vick with regards to the money that you gave him that came out of the Alabama Village proceeds?
“A: Well, he was just running a little bit tight. He was going to build him a new house and I told him I had some money, that I had just sold them apartments, and I said you’re welcome to it, you can use it.
“Q: Okay. Was there any type of loan agreement or anything that you did with Elmer?
“A: No. He helped me so much out there in the apartments. And he come out there and worked on every one that Bobby Dobson had getting the heaters started, every one of them, not one, but every one of them, and worked on every one she had and every one I had. And nobody ever paid him a penny.
“Q: And because of that what? You agreed to give him some of the money, is that what you’re telling us?
“[Attorney for the Estate]: Object to the form.
“A: Well, no. He’s always helped me.”

Elmer’s attorney then questioned Loyd as follows:

“Q: But my point is you were giving stuff to [Carrie Vick’s daughter] Ms. Reil, some valuable services, goods and services to Ms. Reil and Mr. [Bobby] Dobson, is that correct?
“[Attorney for the Estate]: Object to the form.
“A: Right.
“Q: And the same like Elmer Vick, you felt like he was entitled to some of your money, correct?
“A: Right.
“Q: And the funds that you gave in your mind to Elmer Vick for the purchase of — the funds that you gave to Elmer Vick, the $170,000 that you have classified as a loan, that was from the sale of the Alabama Village properties, is that correct?
“[Attorney for the Estate]: Object to the form.
“A: Well, we talked about it and I told him he didn’t have to pay it back right away, said he couldn’t pay it back overnight. So I said don’t worry about it. But that came out of my apartments out of Alabama Village. I had already sold apartments three or four times before I got that $300,000 check.
“Q: Is it true that Elmer Vick did a lot of work for you back in 1979, 1980, after Hurricane Frederick?
“A: Oh, he come down there and worked day and night.
“Q: And you and Elmer Vick’s mother discussed giving money to him at that time but decided against it, is that correct?
“A: Yes.
“Q: And the reason you decided against giving it to him at that time was that you were not happy with his wife at the time, is that correct?
“A: I don’t think they were getting along just right and we just held up on it.
“Q: Okay. And coming to the present day, when you gave Mr. Elmer Vick, your son, money, the $170,000, did you ever think that he was going to pay you back?
“[Attorney for the Estate]: Object to the form.
“A: Oh, I know he would pay me back.
“Q: Did you want him to pay you back?
“A: Well, I don’t know that I did. I wasn’t concerned about it. Knowing him like I do, yes, he would have paid it.
“Q: There was no written agreement, correct? There was no written agreement that he would pay you back, right?
“A: No.
“Q: Is it fair to say that you were going to consider the money a gift to Elmer?
“[Attorney for the Estate]: Object to the form, asked and answered.
“A: Well, I put that money in the bank on them [certificates of deposit] and had him to sign it so if something happened to me that he could take over.”

Considering all of this testimony as a whole, we agree with Dobson and Riel that the $170,800 transfer from Loyd to Elmer is properly viewed as a loan, not as a gift.

In Dial v. Dial, 603 So.2d 1020, 1022 (Ala.1992), this Court stated:

“The elements of a valid gift are as follows:
“1) An intention to give and surrender title to, and dominion over, the property;
“2) Delivery of the property to the do-nee; and
“3) Acceptance by the donee.”

There is no dispute in this case that the $170,800 was delivered to and accepted by Elmer; thus, whether that money was a gift or a loan depends on Loyd’s intent at the time of the transfer, that is, whether it was Loyd’s intent and understanding that Elmer was to repay the money. See Samford v. First Alabama Bank of Montgomery, N.A., 431 So.2d 146, 150 (Ala.1983) (“To constitute a gift in this state, there must be a clear intention on the part of the donor to relinquish all present and future dominion over the property.”).

When Loyd was asked directly whether he considered the $170,800 to be a gift, his answer was nonresponsive. However, when Loyd was asked earlier how much money he had “given Elmer over the last three years,” he replied by stating “I haven’t given any.” (Emphasis added.) Moreover, although Elmer has suggested in his brief to this Court that Loyd gave him the money in return for work he had done on some rental apartments, when Loyd was asked if he had given Elmer the money in return for that help, he replied, “Well, no. [Elmerj’s always helped me.” Thus, Loyd had at least three opportunities to describe the transfer as a gift, but he never did so; instead, he repeatedly agreed with the characterization of the transfer of the $170,800 as a loan.

Loyd’s testimony also reveals that he understood Elmer to have an obligation to pay him back and that he expected Elmer to fulfill that obligation. When asked directly if he thought Elmer was ever going to pay him back, Loyd stated that he “kn[e]w he would pay me back.” Elmer emphasizes that Loyd also stated that he did not know if he wanted Elmer to pay him back, but Loyd immediately explained that statement by stating that he “wasn’t concerned about it” because, “[k]nowing him like I do, yes, he would have paid it.” Moreover, Loyd’s statement that “I told [Elmer] he didn’t have to pay it back right away” necessarily implies that Loyd expected Elmer to pay him back at some point in the future — -just not “right away.” (Emphasis added.) We therefore conclude that, even in the absence of a written loan agreement or repayment plan and even though transfers from parents to their children are generally presumed to be gifts, Hooks v. Hooks, 264 Ala. 66, 69, 84 So.2d 354, 357 (1955), it was Loyd’s intent and understanding that Elmer would repay the $170,800 that Loyd transferred to him in March and April 2005; therefore, that transfer of funds is, under the law, a loan.

However, even though we are making a factual finding that Elmer is indebted to Loyd for $170,800, Elmer nevertheless argues that the trial court’s judgment denying the Estate’s request to issue a writ of garnishment should be affirmed based on the doctrines of judicial estoppel and/or res judicata. He first argues that this Court should apply the doctrine of judicial estoppel to bar Dobson and Riel from asserting that the transaction between Loyd and Elmer was a loan because, he says, that theory presupposes that the $170,800 belonged to Loyd before it was loaned to Elmer; however, Elmer argues, the Estate argued during the underlying case that the same $170,800 actually belonged to Carrie Vick, not Loyd.

The doctrine of judicial estoppel generally applies to preclude a party from assuming a position in one legal proceeding that is inconsistent with a position it has previously asserted. Ex parte First Alabama Bank, 883 So.2d 1236, 1241 (Ala.2003). For judicial estoppel to apply,

“ ‘(1) “a party’s later position must be ‘clearly inconsistent’ with its earlier position”; (2) the party must have been successful in the prior proceeding so that “judicial acceptance of an inconsistent position in a later proceeding would create ‘the perception that either the first or second court was misled’ ” (quoting Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir.1982)); and (3) the party seeking to assert an inconsistent position must “derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” [New Hampshire v. Maine, ] 532 U.S. [742] at 750-51, 121 S.Ct. 1808 [ (2001) ]. No requirement of a showing of privity or reliance appears in the foregoing statement of factors to consider in determining the applicability of the doctrine of judicial estoppel.’ ”

Middleton v. Caterpillar Indus., Inc., 979 So.2d 53, 60-61 (Ala.2007) (quoting Ex parte First Alabama Bank, 883 So.2d at 1244-45). We are not persuaded that judicial estoppel applies here because, although the Estate did assert at trial that the $194,700 it was seeking belonged to Carrie Vick as opposed to Loyd, the Estate did not prevail on that assertion. The trial court ultimately entered a judgment awarding the Estate only $20,000 of the $194,700 it sought in its claim against Elmer; thus, the trial court implicitly held that $174,700 of those funds the Estate claimed did belong to Loyd. If a subsequent court were to accept the argument Dobson and Riel now advance — that Loyd loaned $170,800 to Elmer — there would be no perception that the first court was misled because the results of the two proceedings would be entirely consistent. Accordingly, we decline to apply the doctrine of judicial estoppel to bar Dobson and Riel from now claiming that the $170,800 that Loyd transferred to Elmer was a loan.

Elmer has also argued that the doctrine of res judicata bars the garnishment claim filed against him, while Dobson and Riel argue that the doctrine of res judicata is inapplicable in this case. In Equity Resources Management, Inc. v. Vinson, 723 So.2d 634, 636-37 (Ala.1998), this Court explained the doctrine of res judicata as follows:

“The essential elements of res judica-ta are (1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions. If those four elements are present, then any claim that was, or that could have been, adjudicated in the prior action is barred from further litigation. Dairyland Ins. Co. v. Jackson, 566 So.2d 723, 725-26 (Ala.1990).
“This Court, in Whisman v. Alabama Power Co., 512 So.2d 78, 81 (Ala.1987), restated the elements of res judicata:
“ ‘[R]es judicata ... involves prior litigation between a plaintiff and a defendant, which is decided on the merits by a court of competent jurisdiction, and then a subsequent attempt by the prior plaintiff to relitigate the same cause of action against the same defendant, or perhaps to relitigate a different claim not previously litigated but which arises out of the same evidence. Alabama law is well settled that this will not be allowed. A valid, final judgment on the merits of the claim extinguishes the claim. If the plaintiff won, the claim is merged into the judgment; if the defendant won, the plaintiff is barred from relitigat-ing any matter which could have been litigated in the prior action.’
“(Citations omitted. Emphasis in original.) This statement from Whisman is consistent with a long line of cases holding that whether the second action presents the same cause of action depends on whether the issues in the two actions are the same and on whether substantially the same evidence would support a recovery in both actions.”

The parties essentially agree that whether the doctrine of res judicata has a field of operation in this case depends upon whether the trial court was presented with the same cause of action during the garnishment proceedings as it was presented with, and decided, during the first trial. Elmer argues that the causes of action are the same because, he says, the garnishment claim is derived from “the same nucleus of operative facts” as the unjust-enrichment claim the Estate pursued against Elmer at the first trial. See Chapman Nursing Home, Inc. v. McDonald, 985 So.2d 914, 921 (Ala.2007) (stating that the doctrine of res judicata applies to “ ‘ “all legal theories and claims arising out of the same nucleus of operative facts” ’ ” and that “two causes of action are the same for res judicata purposes ‘ “when the same evidence is applicable in both actions.” ’ ” (quoting other cases; emphasis omitted)). Dobson and Riel argue that the issue whether the transfer of funds from Loyd to Elmer was a loan or a gift was not litigated during the first trial and that the doctrine of res judicata accordingly has no application. In support of their argument, Dobson and Riel cite Denniston & Co. v. Jackson, 468 So.2d 170, 172 (Ala.Civ.App.1985) (quoting Aetna Life Ins. Co. v. Martin, 108 F.2d 824, 826 (8th Cir.1940) (“‘A prior judgment between some parties, which is not strictly res judicata because based upon different causes of action, operates as an “estoppel” only as to matters actually in issue or points controverted.’ ”)).

We agree with Dobson and Riel that the cause of action presented in the first trial and that presented in the garnishment proceedings are different. In the first trial, the relevant issue was whether the $194,700 the Estate claimed rightfully belonged to Carrie Vick or to Loyd Vick. The record contains briefs on that issue filed in the trial court by both Elmer and the Estate, and those briefs reveal the “nucleus of operative facts” and evidence the parties deemed applicable in that action. Chapman Nursing Home, 985 So.2d at 921. Both parties’ briefs focus on the source of the $194,700 that the Estate claimed. Elmer, in his brief, cited facts indicating that it was Loyd that had made the down payments, monthly payments, insurance payments, and tax payments on the two properties in Gulf Shores and argues that he was accordingly entitled to all the sales proceeds from one property and the insurance proceeds from the other. In its brief however, the Estate cited facts indicating that Carrie Vick was a joint owner with the right of survivorship of both Gulf Shores properties, that she was liable for the mortgages on both properties, and that she had, with respect to the property damaged during Hurricane Ivan and for which an insurance settlement was received, contributed $20,000 toward the down payment and had contributed a significant amount toward its furnishings. Neither party’s brief addressed, directly or indirectly, the issue whether the $170,800 transfer from Loyd to Elmer was a loan or a gift or discussed the facts relevant to that issue. Clearly then, the evidence related to the gift-or-loan issue was not applicable to that trial, and the operative facts were different. Accordingly, the causes of action are not the same and the doctrine of res judicata does not prevent Dobson and Riel from pursuing their attempt to garnish Elmer’s debt to Loyd.

IV.

The trial court denied the Estate’s request to issue a writ of garnishment against Elmer without explaining its rationale for entering that order. However, upon conducting a de novo review of the relevant facts and law, we conclude that Elmer is indebted to Loyd in the amount of $170,800 and that Dobson and Riel, who now hold the legal interest in the $1,250,000 judgment entered in the Estate’s favor against Loyd, are not barred by the doctrines of judicial estoppel or res judicata from garnishing Elmer’s debt to help satisfy that judgment. Accordingly, the judgment entered by the trial court is hereby reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . In their brief filed with this Court, Dobson and Riel represent that Runnels has stated that she does not wish to participate further in this appeal and that she has accordingly not joined in their brief.

      . In a separate proceeding, Loyd was convicted of murder for killing Carrie and was sentenced to life imprisonment.

      . In August 2004, Loyd and Carrie Vick sold one house in Gulf Shores for $295,000, and, in March 2005, they received an insurance check for $94,400 for damage to another house in Gulf Shores suffered as the result of Hurricane Ivan, which made landfall in September 2004. The Estate’s claim against Elmer for $194,700 represented one-half of those funds.

      . Elmer and Loyd had a joint bank account at First Gulf Bank. On March 24, 2005, with Loyd’s permission, Elmer wrote himself a check for $100,000. On April 26, 2005, Elmer wrote himself another check for $70,800, again with Loyd’s permission. Although Elmer’s name was on this checking account, it is undisputed that he was not the source of the funds he withdrew on March 24 and April 26.

      .Pursuant to § 6-6-458, Ala.Code 1975, either party could have requested that the issue be tried before a jury; however, neither the Estate nor Elmer made such a request.

      . Dobson and Riel acknowledge that there is no written documentation indicating that the transfer was a loan, but they also emphasize that Elmer has presented no documentary evidence indicating that Loyd treated the transfer as a gift for tax purposes and that he paid the appropriate federal gift tax.

      . In the appellate briefs filed with this Court, the parties agree that whether the transaction between Loyd and Elmer was a gift or a loan was not disputed during the initial trial.

      . We further note that, although whether the transaction between Loyd and Elmer was a loan or a gift was not an issue during the initial trial, to the extent the Estate did assert a position on that question, that position appears to have been that the transaction was a loan — albeit a loan Loyd had no right to make because the funds were not his to loan. The Estate’s second amended complaint states both that "$100,000 was loaned to Elmer Vick from Loyd Vick for the purpose of constructing a home in Fairhope” and that "$70,800 was loaned to Elmer Vick from Loyd Vick for the purpose of constructing a home in Fair-hope.”

      .In defending Elmer’s judicial-estoppel argument, Dobson and Riel also argue that it is Elmer who should be judicially estopped from now claiming that the $170,800 was a gift instead of a loan. However, because we have already found that the transaction between Loyd and Elmer was in fact a loan, it is not necessary to address this argument.

      . Moreover, even when all the elements of res judicata are present, the doctrine serves only to bar "any claim that was, or that could have been, adjudicated in the prior action .... ” Equity Res. Mgmt., 723 So.2d at 636 (emphasis added). It would have been impossible for the Estate to adjudicate the garnishment claim during the first trial because the $1,250,000 judgment against Loyd that indebted him to the Estate was not entered until the conclusion of that trial. Before that judgment was entered and Loyd failed to satisfy it, the Estate had no basis for attempting to garnish anything belonging to Loyd.


author: WOODALL, Justice.

text:
    Johnnie HALL, Sr. v. Calvin E. REYNOLDS et al.
    1080408.
    Supreme Court of Alabama.
    June 19, 2009.

      W. Eric Pitts, Alabaster, for appellant.
    April England Albright, Atlanta, Georgia, for appellees.
   WOODALL, Justice.

Johnnie Hall, Sr., appeals from an order of the Dallas Circuit Court. We dismiss his appeal, because the trial court’s order was not a final judgment.

On April 8, 2004, Calvin E. Reynolds, James C. Reynolds, Annie Reynolds Perry, and Gwendolwyn Reynolds Amamoo (hereinafter referred to collectively as “the Moorer heirs” ) sued Hall in the Dallas Circuit Court. The Moorer heirs’ complaint contained three counts. The first count alleged that Hall had trespassed upon and damaged property that, according to the Moorer heirs, was owned by the Moorer heirs. For the alleged trespass, the Moorer heirs requested compensatory damages. In the second count, the Moor-er heirs sought a preliminary injunction preventing Hall “during the pendency of [the] action from building a fence or trespassing on [their] property,” as well as “a permanent order enjoining [Hall] from trespassing on [their] property.” Finally, in the third count, the Moorer heirs alleged that there was an actual controversy between Hall and them concerning the ownership of the property on which Hall had allegedly trespassed (“the disputed strip”), and they sought a judgment declaring the property rights of the parties with regard to the disputed strip. The parties agree that, in order to declare such rights, it would be necessary for the trial court to locate and define the boundary line between the property claimed by the Moorer heirs and the property claimed by Hall.

On May 3, 2004, the trial court entered an order stating that a preliminary injunction was due to be granted, but, in the same order, it scheduled a hearing on the request for the injunction. The clerk’s record contains no other reference to preliminary or permanent injunctive relief.

A bench trial was held. The Moorer heirs presented their testimony on August 25, 2005. The trial was not resumed until September 20, 2006, when Hall presented his defense. After an unexplained delay, the trial court entered what it titled a “Final Order and Judgment” on July 29, 2008. The order stated only “that judgment be and hereby [is] rendered in favor of the [Moorer heirs] and against [Hall].” Hall then filed what purported to be a postjudgment motion, which the trial court denied on November 11, 2008. On December 22, 2008, Hall filed a notice of appeal to this Court.

“It is ‘our time-honored rule that a final judgment is an essential precondition for appealing to this Court.’ John Crane-Houdaille, Inc. v. Lucas, 534 So.2d 1070, 1073 (Ala.1988).” BE & K, Inc. v. Baker, 875 So.2d 1185, 1188 (Ala.2003).

“... ‘[I]t is not the title of an order that makes it final; rather, the test of a judgment’s finality is whether it sufficiently ascertains and declares the rights of the parties.’ Ex parte DCH Reg’l Med. Ctr., 571 So.2d 1162, 1164 (Ala.Civ.App.1990) (citing McCulloch v. Roberts, 290 Ala. 303, 276 So.2d 425 (1973)). ‘An appeal will ordinarily lie only from a final judgment; that is, a judgment that conclusively determines the issues before the court and ascertains and declares the rights of the parties.’ Palughi v. Dow, 659 So.2d 112, 113 (Ala.1995).”

Queen v. Belcher, 888 So.2d 472, 475 (Ala.2003).

The trial court’s order of July 29, 2008, is not a final judgment — for several reasons. In fact, it fails to adequately ascertain and declare the rights of the parties in practically every conceivable manner. For example, the Moorer heirs’ trespass claim includes a claim seeking compensatory damages, but the order neither awards nor denies monetary relief. Such an order is not final. See Certain Underwriters at Lloyd’s, London v. Southern Natural Gas Co., 939 So.2d 21, 27-28 (Ala.2006). Also, the Moorer heirs requested permanent injunctive relief, but the order neither awards nor denies such relief. Although the trial court may have intended to grant injunctive relief by simply entering a judgment in favor of the Moorer heirs, it did not do so, and it followed none of the mandatory requirements of Rule 65(d)(2), Ala. R. Civ. P. See Appalachian Transp. Group, Inc. v. Parks, 738 So.2d 878, 883 (Ala.1999). Further, the trial court’s order does not locate or define the relevant boundary line, see § 35-3-3, Ala.Code 1975, or otherwise declare the rights of the parties with regard to the disputed strip.

The trial court’s order did not conclusively determine the issues before it, nor did it ascertain or declare the rights of the parties. Consequently, the order is not a final judgment, and this appeal must be dismissed.

APPEAL DISMISSED.

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

      . The property was at one time owned by Broley Moorer and his wife Minnie Lee Moor-er. The Moorer heirs are their descendants.