author: IRVING, J., for the court.

text:
    Glenn CHAPMAN, Appellant, v. Trapp WILLIAMS, Appellee.
    No. 2002-CA-01057-COA.
    Court of Appeals of Mississippi.
    Dec. 2, 2003.

      John E. Howell, Meridian, attorney for appellant.
    George C. Williams, Quitman, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and IRVING, JJ.
   IRVING, J., for the court.

¶ 1. A Clarke County jury, finding that Glenn Chapman maliciously prosecuted an aggravated assault charge against Trapp Williams, returned a $10,000 verdict against Chapman, and a judgment was entered accordingly. Before us is Chapman’s appeal which presents the following issues: (1) whether the verdict of the jury is contrary to the overwhelming weight of the evidence, (2) whether the court erred in admitting a videotape into evidence, and (3) whether the jury was properly instructed.

¶ 2. Discerning no error, we affirm.

FACTS

¶ 3. On October 18, 1999, between 6:15 and 6:30 p.m., Glenn Chapman was shot from behind while on his property in rural Clarke County. Chapman was shot while working on a fence line that ran north and south between his property and Trapp Williams’s property.

¶ 4. Chapman filed a civil complaint against Williams, alleging that Williams had shot him. Also, Chapman swore out a criminal affidavit against Williams, charging him with aggravated assault. The case was presented to a grand jury which declined to indict Williams.

¶ 5. Williams subsequently filed a counter-claim against Chapman for slander and malicious prosecution. The matter proceeded to trial, and, as previously mentioned, the jury returned a verdict for Williams on his counter-claim in the amount of $10,000.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. The Weight of the Evidence

¶ 6. Chapman first argues that the verdict of the jury is contrary to the overwhelming weight of the evidence. He explains that “the jury ignored the evidence and the proof as well as the instructions of the court.” This argument implicates the discretion of a trial judge in denying an appellant’s motion for a new trial. However, Chapman failed to offer a motion for a new trial after the rendering of the judgment and thus is prevented from challenging on appeal the weight of the evidence. Smith v. State, 716 So.2d 1076, 1078(¶ 13) (Miss.1998). Whether the verdict is against the overwhelming weight of the evidence is a matter which the trial judge must decide first, before any appeal is taken, so that the trial judge may have an opportunity to pass upon the validity of the allegation before an appellate court is called upon to review the matter. Id. Since Chapman failed to move for a new trial, he is barred from raising this issue here. Id.

2. Admission of the Videotape

¶ 7. During the cross-examination of Printiss McCarra, one of Chapman’s witnesses, Williams’s counsel sought to introduce into evidence a copy of a videotape made by McCarra on October 18, 2001, two years after the shooting. Chapman immediately objected on the basis that the videotape was not listed on the pretrial order as a defense exhibit. The court ruled that the videotape would be admitted and shown to the jury. Chapman then objected again and requested that the court view the videotape and allow him to be .heard before it was shown to the jury. The court granted the request, dismissed the jury for the day and ordered that the videotape be played in the presence of the court and counsel. Shortly after the videotape began playing, the court ordered the playing stopped and stated that it was reversing its previous ruling allowing the videotape into evidence.

¶ 8. The court acknowledged that there was no way to determine whether the October 18, 2001 videotape reasonably depicted the scene on October 18, 1999, the evening of the shooting. The judge, however, allowed Williams to have the tape marked for identification. The judge further explained that, to the extent that the videotape possessed any impeachment value, the" same could be accomplished through cross-examining McCarra and eliciting testimony from another witness, J.G. Kufel, to refute McCarra’s assertions as to what could be seen.

¶ 9. On the following morning, Williams reasserted to the judge that he wanted to introduce the videotape. Williams explained that he was not offering the videotape to depict the conditions that existed on October 18,' 1999, but sought to attack McCarra’s credibility. According to Williams, the videotape demonstrated that McCarra was mistaken as to the time he allegedly saw J.G. Kufel and another witness, Buddy Williams, approach the area where he was filming. Moreover, Williams explained that McCarra was inaccurate in his testimony concerning the degree of visibility at the scene that particular evening. To rebut Williams’s arguments, Chapman questioned the accuracy of both the videotape’s recording of the scene and the time displayed on the videotape. After listening to both sides, the trial judge responded:

BY THE COURT: All right. Well, I am going to have the video admitted into evidence as Exhibit 9. This video was made two years after this occurrence occurred. The reason I am allowing it into evidence is not to depict the conditions of the scene as they existed on October 18, 1999, but Mr. McCarra has testified to certain things that he could see. I feel like counsel should have the opportunity to use this video that this witness made to attempt to impeach him. As to whether the accuracy or— not the accuracy, but how good the video or camera was, that is — I am going to let you — you can argue that. But the jury can look at the video and make its own determination. So I will have it marked as Exhibit 9. I don’t think that the — I am allowing the video to be used for cross-examination or impeachment purposes, and like I said, not to show the conditions. So I don’t think the whole video should be just sat down and played for the jury. If you — so that will be my ruling. Okay. So have it marked....

¶ 10. Chapman argues that no foundation was laid for admission of the entire videotape, that the court failed to make a Rule 403 balancing analysis and that, although the videotape was admitted for impeachment purposes only, no such impeachment occurred. Williams counters that the videotape was not intended to depict the scene as it existed on October 15, 1999 . He explains that Chapman put McCarra on the stand to testify to the conditions on October 18, 2001, two years after the alleged shooting. According to Williams, Chapman opened the door for introduction of any evidence that would test McCarra’s credibility.

¶ 11. “Under this Court’s standard of review, the admissibility of evidence rests within the discretion of the trial judge. Unless his judicial discretion is abused, this Court will not reverse his ruling. The same standards used in determining the admissibility of photographs are applicable to the admission of videotapes.” Davis v. State, 767 So.2d 986, 996(¶(24) (Miss.2000). Our supreme court, in Jesco, Inc. v. Shannon, 451 So.2d 694, 702 (Miss.1984), cautioned trial judges to “preview such evidence to determine its probative value as against its prejudicial effects upon a jury.” Relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” M.R.E 403.

¶ 12. Rule 901(b)(1) of the Mississippi Rules of Evidence provides that authentication can be accomplished by testimony from someone familiar with and possessing knowledge of the contents of the document or recording. McCarra testified that he set up the video equipment, was present when the events on the videotape transpired, and could identify the videotape through his observation of it. Also, McCarra viewed the copy of the videotape and verified that the videotape was an accurate copy of the one which he made on October 18, 2001. Since McCarra was familiar with the scene and testified sufficiently to the accuracy of the recording, the authenticity of the videotape was proven. See Wells v. State, 604 So.2d 271, 277 (Miss.1992).

¶ 13. Once the authenticity of the videotape was established, the only remaining question was the relevance of it to the matter being tried. We have already noted that the trial judge admitted the videotape for impeachment purposes only. Our review of the record reveals that Chapman is correct in asserting Williams’s counsel, during his cross-examination of McCarra, did not direct McCarra to any specific thing on the videotape which contradicted McCarra’s direct examination testimony. However, the jury heard McCarra’s direct examination testimony and could decide for itself whether the videotape supported or contradicted McCarra’s testimony. While directing McCarra to the specific portion of the videotape that contradicted his direct examination testimony would have been the proper way to use the videotape to impeach him, we cannot say that the trial court abused its discretion by admitting the videotape into evidence. Therefore, we find no merit in Chapman’s contention on this issue.

3. Jury Instruction

¶ 14. Chapman argues that the trial court erred when it gave an instruction to the jury that it should award money damages to the prevailing party. He explains that this jury instruction is in direct conflict with the proper instruction and that it was possible for the jury to find that neither party had proven damages. Therefore, he asserts that the instruction was erroneous and prejudicial. Williams, on the other hand, argues that Chapman did not object to the instruction when it was given because, at the time, Chapman believed that the instruction would be in his favor.

¶ 15. “When determining whether reversible error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole to determine whether a jury has been incorrectly instructed.” Haggerty v. Foster, 838 So.2d 948, 953(¶4) (Miss.2002). “When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Id.

¶ 16. In the ease sub judice, the following exchange occurred concerning the contested jury instruction:

BY THE COURT: Let the record reflect that the jury has sent a note to the Court in writing. And the note is, “Do we have to award a dollar amount?” My answer to that will just be simply “yes.” If they find in favor of a party, then they are entitled to be compensated pursuant to the instructions. There is no minimum or maximum. So my recommended response would just be “yes.” Does the plaintiff have any objection to that?
BY MR. HOWELL: None.
BY THE COURT: Mr. Williams?
By MR. WILLIAMS: No, Sir.

¶ 17. After both parties’ approval of the instruction, it was submitted to the jury which subsequently found for Williams in the amount of $10,000. “Failure to make a contemporaneous objection and allow the trial court opportunity to cure the defect is a procedural bar and constitutes a waiver of the argument on appeal.” Haggerty, 838 So.2d at 954(¶ 8). Here, Chapman’s attorney not only failed to object to the language of the instruction at trial, he affirmed that he had no objection to the instruction. We therefore find that Chapman’s objection to the language of the instruction was not properly preserved, and his argument on appeal is not properly before this Court.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF CLARKE COUNTY IS AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.

      . Upon consideration of the record and arguments made by Williams in his brief, it is apparent that this date listed in his argument was a typo and should read October 18, 1999, instead of October 15, 1999.


source: Caselaw Access Project

author: IRVING, J., for the Court.

license: Public Domain

text:
    Pittman EDWARDS, Appellant, v. JACKSON NATIONAL LIFE INSURANCE COMPANY, Appellee.
    No. 2002-CA-00437-COA.
    Court of Appeals of Mississippi.
    Dec. 2, 2003.
    Dana J. Swan, Clarksdale, attorney for appellant.
    William C. Brabec, Rebecca L. Hawkins, Jackson, attorneys for appellee.
    Before SOUTHWICK, P.J., THOMAS and IRVING, JJ.
   IRVING, J., for the Court.

¶ 1. This appeal arises from a decision of the Circuit Court of Sunflower County denying Pittman Edwards’s motion to file a cross-claim against, co-defendant, Jackson National Life Insurance Co. Feeling aggrieved, Edwards appeals and argues that the trial court abused its discretion.

¶2. Finding no reversible error, this Court affirms the trial court’s denial.

FACTS

¶ 3. On November 1, 1999, Randy and Mary Jane Andrews filed suit against Jackson National Life Insurance Company (Jackson National) and Pittman Edwards. The suit involved the purchase of a Jackson National life insurance policy by the Andrewses from Edwards. The Andrewses charged Edwards and Jackson National with fraud, intentional misrepresentation, fraudulent inducement, fraudulent concealment, civil conspiracy, breach of obligations of good faith and fair dealings, negligent misrepresentation, breach of fiduciary and quasi-fiduciary obligations, and gross negligence. The Andrewses sought actual and punitive damages from their suit. Both Edwards and Jackson National answered the complaint and denied any misconduct or wrongdoing with regard to the sale of the policy.

¶ 4. Discovery ensued with various depositions of the parties, request for admissions, requests for production, and interrogatories. On March 23, 2000, the trial court entered an order setting a deadline for the completion of discovery by September 15, 2000. However, upon the request of all the parties, discovery was continued by the trial court until November 15, 2000. Thereafter, another order was entered extending discovery until March 1, 2001. On May 8, 2001, the trial court ordered sua sponte that the case be referred to mediation. The trial court ordered that such mediation should be completed on or before July 3, 2001. On July 3, the parties supplied the trial court with a “Mediation Status Report” requesting an extension of the time for the completion of mediation. The parties also informed the trial court of their efforts toward a settlement independent of the order of formal mediation. On July 5, the trial court granted the extension of time to October 3, 2001, to complete mediation and/or settlement negotiations.

¶ 5. On July 13, 2001, Edwards filed a motion for leave to file a cross-claim. He alleged that his sale of life insurance on behalf of Jackson National was part of a scheme of fraudulent and deceptive sale practices by Jackson National of which he was unaware until recently. Edwards asserted the exact same causes of action against Jackson National as did the An-drewses. Additionally, Edwards accused Jackson National of tortious interference with his business activities, breach of contract, intentional infliction of emotional distress, negligent infliction of emotional distress, damage to his business and reputation, as well as the infliction of damage on him and on his business. Edwards claimed that it was during discovery that he learned of Jackson National’s concealment of facts and materials relevant to its deceptive sales practices and that in March 1999, he “obtained information that Jackson National had advised the An-drewses that their policy would lapse.” Edwards asked for actual and punitive damages for mental and emotional distress and “angry worrying concern” over damage to his business reputation. He also sought to recover attorney’s fees, costs and loss of business income and profit.

¶ 6. Also, on July 13, 2001, Edwards filed a notice of hearing with his motion to file a cross-claim. The notice did not contain a date for the hearing, stating instead, that the motion would be brought on for hearing as soon as counsel could be heard. Jackson National, arguing that Edwards’s allegations were not based on the subject matter of the Andrewses’ suit, opposed the motion. Jackson National, citing Mississippi Rule of Civil Procedure 13(g), argued that the allegations of Edwards’s proposed cross-claim did not arise out of the transaction or occurrence which was the subject matter of the original action. Moreover, Jackson National maintained that it would be unduly prejudiced by the delay, particularly, the two-year time span between the original filing of the Andrewses’ suit and Edwards’s cross-claim. Lastly, Jackson National explained that cross-claims are not compulsory; therefore, Edwards could bring his claims in a separate action.

¶ 7. Edwards filed a motion for a continuance and postponement of the mediation scheduled for October 31, 2001. Edwards contended that he had made several unsuccessful attempts during the preceding months to schedule a hearing on the motion to file a cross-claim. Therefore, Edwards requested such postponement of mediation until such time as the trial court could rule on the cross-claim motion.

¶ 8. On January 22, 2002, the trial judge, acting pursuant to an ore tenus motion of the Andrewses and Jackson National, signed a judgment of dismissal of the An-drewses’ claims against Edwards and Jackson National. On January 31, 2002, the trial court heard Edwards’s motion for leave to file the cross-claim and denied same. A judgment to that effect was signed on February 6, 2002.

¶ 9. Additional facts will be related during the discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 10. Edwards maintains that the trial court abused its discretion in denying his motion to file a cross-claim against Jackson National. He asserts that the trial judge abused her discretion because there was no finding that Jackson National would suffer actual prejudice if the amendment was allowed. Not surprisingly, Jackson National maintains that the trial judge’s ruling was proper. It contends that Edwards’s proposed cross-claim was much broader than the subject matter of the original action brought by the An-drewses, and thus outside the parameters of Rule 13(g) which defines a cross-claim and delimits its usage. Jackson National also asserts that allowing an amendment after the close of discovery would prejudice them. Lastly, Jackson National emphasizes that Edwards is still free to file a separate action; therefore, he loses no rights in being denied the right to file a cross-claim.

¶ 11. Rule 13(g) states that a cross-claim against a co-party is:

A pleading ... by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of the claim asserted in the action against the cross-claimant.

M.R.C.P. 13(g).

¶ 12. The supreme court has stated that “[mjotions for leave to amend are left to the sound discretion of the trial court.” Church v. Massey, 697 So.2d 407, 413 (Miss.1997). An appellate court reviews such “determinations under an abuse of discretion standard and unless convinced that the trial judge abused his discretion, we are without authority to reverse.” McCarty v. Kellum, 667 So.2d 1277, 1283 (Miss.1995).

¶ 13. Rule 15 of the Mississippi Rules of Civil Procedure governs amended and supplemental pleadings. Subsection (a) states in pertinent part that:

A party may amend a pleading as a matter of course at any time before a responsive pleading is served, or, if a pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within thirty days after it is served.... Otherwise a party may amend a pleading only by leave of court or upon written consent of the adverse party; leave shall be freely given when justice so requires.

M.R.C.P. 15(a) (emphasis added).

¶ 14. Whether actual prejudice would result to the adverse party is a key factor for determination by the trial judge. The Mississippi Supreme Court has found that:

[fjreedom to grant leave to amend when justice so requires, as provided by the [Mississippi Rules of Civil Procedure], diminishes as the litigation progresses. Since prejudice to the opposing party is the key factor governing the court’s discretion in granting leave to amend a pleading, the court will ordinarily refuse to grant such permission where the motion comes so late and in such circumstances that the right of the adverse party will necessarily be prejudicially affected.

McCarty, 667 So.2d at 1284-85 (quoting 61 Am.Jur.2d Pleadings § 315 (1981)). Moreover, the Mississippi Supreme Court has affirmed the denial of a motion to amend because of undue delay or the failure to exercise due diligence. See TXG Intrastate Pipeline Co v. Grossnickle, 716 So.2d 991, 1011(¶ 57) (Miss.1997); Natural Mother v. Paternal Aunt, 583 So.2d 614, 616-17 (Miss.1991).

¶ 15. The Mississippi Supreme Court also has commented on the language “leave shall be freely given when justice so requires” found in M.R.C.P. 15(a):

Rule 15(a) declares that leave to amend “shall be freely given when justice so requires;” this mandate is to be heeded ... if the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. — the leave sought should, as the rules require, be “freely given.”

Moeller v. Am. Guarantee and Liab. Ins. Co., 812 So.2d 953, 962(¶28) (Miss.2002).

¶ 16. In denying Edwards’s motion to file a cross-claim, the trial judge stated:

The Court having heard the argument of Counsel and having reviewed the documents in this case on the Motion to File and Cross-claim, and opposition thereto, and reviewing particularly Rule 13, some reference to 43, the Court has considered whether of not this claim should be joined in this cause number in order to expedite a resolution of all the controversies between the parties. And the Court agreeing and apologizing for any misstatement that I said the case was dismissed, the Court is certainly aware that it was dismissed as to Jackson National and as to Mr. Pittman Edwards in the original action by Andrews.
The Court has considered the expense that Mr. Pittman would incur if he had to file a separate action, and, of course, the Court is concerned about multiple actions and judicial economy, and putting the parties through the rigors of a trial in this case where the Defendants have been dismissed.
Having said all of that and having considered the issues, the remaining issues on Mr. Edwards, the Court finds that the relief sought in this action should be brought in a separate action, and that the Motion to File a Cross-claim in this cause number, based upon the position that we’re in where the Defendants have been dismissed and there is a question of the commonality of the issues remaining. The Motion to File a Cross-claim is denied.

¶ 17. The record reflects that the first discovery deadline in this case was September 15, 2000. This deadline was set by order entered in March 2000. Pursuant to two subsequent orders, the final discovery deadline was ultimately set for March 1, 2001. In the hearing on Edwards’s motion for leave to file the cross-claim, Edwards argued that it was not until the 30(b)(6) deposition of Jackson National was taken in March 2001, that he acquired the information undergirding his cross-claim. He offered no explanation as to why he waited approximately four months after obtaining the information before seeking to file the cross-claim.

¶ 18. Edwards strenuously argues that he had made repeated attempts to obtain a hearing on his motion for leave to file the cross-claim. We do not doubt this fact but do not find it outcome determinative of the issue before us. The trial judge expressed doubts about the commonality of transaction or occurrence between the allegations of the cross-claim and the allegations of the Andrewses’ complaint. We share the same reservation as did the trial judge. Notwithstanding the broad and far reaching allegations of Edwards’s cross-claim, they are only tangential with the subject matter of the Andrewses’ complaint. We note, for example, that Edwards’s cross-claim does not include an emphatic claim that Jackson National is or may be liable to him for all or part of the claims asserted by the Andrewses against him. There is, however, an opaque allegation of an ‘ “angry worrying concern” over damage and/or potential damage for the Andrewses’ action and other potential lawsuits and claims.’

¶ 19. As pointed out by Jackson National, a cross-claim is not a compulsory pleading, nor is a trial court required to grant all requests for leave to amend although leave shall be freely allowed when justice so requires. When the motion for leave was filed, the parties in the original lawsuit appeared to be in a serious settlement posture and on the verge of settling the lawsuit. When the motion was actually heard, the claims in the original action had been dismissed. While we accept Edwards’s representation that he had tried, without success, on numerous occasions to get his motion heard, the fact remains that when it was finally heard, the claims in the original lawsuit had been dismissed. But more importantly, there is no compelling reason to warrant the conclusion that justice can only be served by allowing the cross-claim. This is especially so since Edwards was not seeking, in his cross-claim, to hold Jackson National liable for any damages which the Andrewses may have recovered against him because of his agency relationship with Jackson National.

¶ 20. On these unique facts, we cannot say that the trial judge abused her discretion in not allowing Edwards’s cross-claim. Therefore, we reject Edwards’s allegation of error and affirm the judgment of the trial court.

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

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS AND CHANDLER, JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING.

      . Specifically, Edwards asserted fraud, intentional misrepresentation, fraudulent concealment, fraudulent inducement, civil conspiracy, breach of obligation of good faith and fair dealings, negligent misrepresentation, breach of fiduciary and quasi-fiduciary obligations, and gross negligence.


author: GRIFFIS, J., for the Court.

text:
    Oliver WILLIAMS and Minnie Williams, Appellants, v. Charles KING, Willie Earl Wooten and Annie Stewart, Appellees.
    No. 2002-CA-01239-COA.
    Court of Appeals of Mississippi.
    Dec. 2, 2003.

      Orbie S. Craft, Brandon, attorney for appellant.
    Christopher A. Tabb, Brandon, attorney for appellee.
    Before McMILLIN, C.J., MYERS and GRIFFIS, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Oliver and Minnie Williams commenced a lawsuit against Charles King and two other individuals, asserting claims for adverse possession, prescriptive easement, interference with use and quiet enjoyment, slander of title, to cancel cloud on title and for monetary damages. The chancellor determined that the issue of ownership was not before the court, there was no slander of title, and Oliver and Minnie were not entitled to damages. On appeal, we find that the chancellor correctly decided several claims, but erred in not considering Oliver and Minnie’s claim for interference with the use and quiet enjoyment of their property. Therefore, we affirm in part and reverse and remand in part for further proceedings.

FACTS

¶ 2. Oliver and Minnie Williams served the complaint and summons on Charles King, Willie Earl Wooten, and Annie Stewart. Only Charles King answered the complaint and filed a counterclaim for attorney’s fees and costs. A default judgment was entered against Wooten and Stewart. However, the chancellor entered no judgment or granted no relief against Wooten and Stewart. A trial was held as to the claims against King.

¶ 3. Oliver Williams testified that King placed his dog near the gate at the entrance of Oliver and Minnie’s residence. Oliver testified that the dog was aggressive and frightened his child and visitors to his home. Oliver wanted to put up a fence along his property line to keep the dog from entering his property or frightening his family and guests. Oliver testified that King threatened to tear down the fence if Oliver built it.

¶ 4. Ronnie Ray Moore, a deputy with the Rankin County Sheriffs Department, was called to a disturbance at Oliver and Minnie’s residence. He testified that King claimed that Oliver was “building a fence on my [King’s] property.” Moore also testified that King said that if Oliver built the fence, he would tear it down.

¶ 5. Charles Craft testified as an expert land surveyor. Craft testified that he surveyed Oliver and Minnie’s property, according to the land description in their deed. Based on the survey, the doghouse was situated on the Kings’s property, and the fence, if constructed, would have been located on the property line.

¶ 6. King did not testily or offer any evidence.

¶ 7. At the conclusion of the trial, the chancellor found on the record that he did not have authority, under the evidence presented, to determined whether the property had been adversely possessed and asked the parties for further briefing on slander of title and damages. The parties complied, and thereafter, the chancellor entered a final judgment denying all relief.

STANDARD OF REVIEW

¶ 8. This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Denson v. George, 642 So.2d 909, 913 (Miss.1994). It is not the job of this Court to redetermine questions of fact resolved by the chancellor. Johnson v. Black, 469 So.2d 88, 90 (Miss.1985). If the record contains substantial, credible evidence to support the findings of fact made in chancery court, this Court will not reverse the chancellor’s decision. Id.

ANALYSIS

¶ 9. The Williamses took advantage of “notice” pleadings and filed a brief, two page complaint. In their complaint, Oliver and Minnie asserted claims for adverse possession, prescriptive easement, interference with use and quiet enjoyment, slander of title, to cancel cloud on title and for monetary damages. King likewise filed a brief answer. Neither party conducted discovery. The trial was very short. The record of testimony taken at trial is twenty-one pages.

¶ 10. Based on the record and briefs, it appears that the chancellor only considered the claims for ownership, slander of title and damages. The chancellor did not consider the claim for interference with use and quite enjoyment. It is this final claim which we find warrants reversal and remand for further proceedings. We will consider each of the arguments, in an order different than presented by the parties.

1. Did the chancellor err in denying the claims for adverse possession, prescriptive easement and to remove cloud on title?

¶ 11. Based on the clear language of the complaint, the Williamses pled claims for adverse possession, prescriptive easement, and to cancel cloud on title. As described above, the evidence presented was minimal. The evidence consisted of three witnesses, a deed, several photos and a plat of the property. No deraignment of title was offered. No other deeds or evidence was offered to establish ownership or any indicia of ownership of the disputed property. The chancellor found that: “Oliver and Minnie Williams hold a deed to a piece of property in Rankin County, Mississippi. The issue of ownership to said piece of property is not before this court.” The chancellor continued and found that: “Charles King has no claim to the property described in the complaint except any ownership interest he may have by virtue of his marriage and that all other relief shall be denied.”

¶ 12. King argues that this was the proper decision because the Williamses failed to follow statutory procedure to establish these claims. Specifically, King refers to Mississippi Code Annotated Section 11-17-35 (1972), which provides:

In bills to confirm title to real estate, and to cancel and remove clouds therefrom, the complainant must set forth in plain and concise language the deraignment of his title....

¶ 13. The plaintiff in an action to remove cloud on title had the burden of showing perfect title himself. He cannot rely on the weaknesses of the defendant’s title. Levy v. Campbell, 200 Miss. 721, 727, 28 So.2d 224, 226 (Miss.1946). Here, the plaintiffs failed to file a deraignment of title; thus, King argues that the ownership claims must fail.

¶ 14. A question remains whether Mississippi Code Annotated Section 11-17-35 has been supplanted by the Mississippi Rules of Civil Procedure, meaning that a deraignment of title is no longer required. See Warner’s Griffith, Mississippi Chancery Practice, § 114 (Rev. Ed.1991). However, we do not consider this issue here because here the chancellor had neither a deraignment of title nor other sufficient evidence to establish title or ownership that would be necessary to prove claims for adverse possession, prescriptive easement or to remove a cloud on title. Accordingly, we affirm the chancellor’s decision to deny relief on these claims based on the evidence presented.

2. Did the chancellor err in denying the claim for slander of title?

¶ 15. On the claim for slander of title, the chancellor correctly noted that, in order to prevail, Oliver and Minnie had to prove that King’s actions were malicious. In Welford v. Dickerson, 524 So.2d 331, 334 (Miss.1988), the court held that for the statement to form the basis of a claim for slander of title it must have been made not only falsely but maliciously.

¶ 16. In Phelps v. Clinkscales, 247 So.2d 819, 821 (Miss.1971), the supreme court defined malice, in relation to slander of title, and held: “Malice exists in the mind and usually is not susceptible of direct proof. The law determines malice by external standards; a process of drawing inferences by applying common knowledge and human experience to a person’s statements, acts, and the surrounding circumstances.”

¶ 17. The chancellor determined that King believed the property in question belonged to his wife. Therefore, any statement he made could not have been malicious. Therefore, the chancellor found that Oliver and Minnie failed to prove that King acted with malice. Based on the evidence presented and our standard of review, we cannot say the chancellor erred in denying the claim for slander of title. Therefore, we affirm the chancellor’s decision to deny relief on the claim for slander of title.

3. Did the chancellor err in denying the claim for damages?

¶ 18. The Williamses damage claims are for emotional distress, attorney’s fees and litigation costs. The evidence to support such claims was insufficient. Oliver testified that he paid his attorney $2,500 and an undisclosed amount to the surveyor. He testified that he missed work and that the minister and visitors to his home were scared by the dog. The surveyor initially testified that he did not charge for the survey and then testified that he had not yet billed for his services, but planned to do so. No evidence was submitted as to the necessity and reasonableness of the attorney’s fees. See McKee v. McKee, 418 So.2d 764 (Miss.1982).

¶ 19. Based on the evidence presented and our standard of review, we affirm the chancellor’s decision to deny an award of damages.

4. Did the plaintiffs sufficiently plead and prove a claim for interference with the use and enjoyment of their property?

¶ 20. The complaint included a claim for interference with the use and quiet enjoyment of their property. This claim is more accurately described as a claim for private nuisance, and the terms are sometimes used interchangeably. Leaf River Forest Products, Inc. v. Ferguson, 662 So.2d 648, 662 (Miss.1995) A private nuisance is defined as a non-trespassory invasion of another’s interest in the use and enjoyment of his property. Young v. Weaver, 202 Miss. 291, 299, 32 So.2d 202, 205 (1947). One landowner may not use his land so as to unreasonably annoy, inconvenience, or harm others. Id.

¶ 21. An action for private nuisance is one that can be classified as in personam, rather than in rem. Therefore, King’s ownership interest in the property is irrelevant to determine whether a private nuisance has occurred.

¶ 22. A private nuisance may be shown by conduct causing an invasion of another’s interest in the private use and enjoyment of land that is either: (1) intentional and unreasonable; (2) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct; or (3) unintentional and actionable for abnormally dangerous conditions or activities. Leaf River Forest Prod., 662 So.2d at 662. A claim for private nuisance does not require proof of an actual physical invasion. However, the plaintiff must present evidence of an invasion in order to withstand summary judgment. Cooper Tire and Rubber Co. v. Johnston, 234 Miss. 432, 438-39, 106 So.2d 889, 891 (1958).

¶ 23. In denying all relief, the chancellor’s judgment did not address the claim for interference with use and quiet enjoyment or private nuisance. The judgment refers to the chancellor’s conclusion that the issue of ownership was not before the court. We find substantial evidence was presented to establish Oliver and Minnie’s claim for private nuisance against, including jurisdiction over, King. The testimony established that King’s dog was threatening to others. The surveyor even testified that he would not go near the dog for fear of his safety. The supreme court has previously held that “[i]t is not necessary to debate whether dogs and chickens may attain the status of trespassers. It is enough that their presence and actions created a nuisance.... ” White v. Lewis, 213 Miss. 686, 692, 57 So.2d 497, 498 (1952).

¶ 24. Thus, we reverse and remand this claim to the chancellor for further consideration of an appropriate remedy. The chancellor’s decision may be determined on the current record or on such other additional evidence as the chancellor deems appropriate.

5. Did the chancellor err in not entering a judgment against defendants, Willie Earl Wooten and Annie Stewart?

¶ 25. Oliver and Minnie appeal the chancellor’s denial of relieve against Wooten and Stewart. However, their brief makes little mention and no argument on this issue. The brief states:

Appellees Wooten and Stewart never answered the Complaint they were summoned to defend, did not appear at trial, and default was entered against them. The Williams were entitled to prevail on their claims against Wooten and Stewart.

¶ 26. We have reviewed the record and find no support for this argument. Indeed, it appears that Wooten and Stewart were properly served with the summons and complaint. They filed no responsive pleading. An application to the clerk for entry of default and supporting affidavit was filed, and the clerk entered a default. However, we find no motion for default judgment or a request on the day of trial that a default judgment be entered against Wooten and Stewart. Further, we find no mention in the trial transcript of any claims against or relief requested from Wooten or Stewart.

¶27. It appears that the entry of default was proper under Rule 55 of the Mississippi Rules of Civil Procedure. However, the plaintiffs have neither moved the court for an entry of a default judgment nor presented sufficient evidence of a sum certain due or the relief to which they are entitled. Since we find no evidence that this issue was considered by the chancellor, we decline to find error in the chancellor’s failure to consider that which was not asked of him.

¶ 28. THE JUDGMENT OF THE CHANCERY COURT OF RANKIN COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. COSTS ARE ASSESSED TO THE APPELLEE.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS AND CHANDLER, JJ., CONCUR.

      . An action is said to be in personam when its object is to determine the rights and interests of the parties themselves in the subject-matter of the action, however the action may arise, and the effect of a judgment in such an action is merely to bind the parties to it. An action in rem is one in which the judgment of the court determines the title to property and the rights of the parties, not merely as between themselves, but also as against all persons at any time dealing with them or with the property upon which the court had adjudicated. R.H. Graveson, Conflict of Laws 98 (7th ed.1974).


author: CHANDLER, J., for the court.

text:
    Billy MILLSAPS, Appellant, v. Gary STOUT, Individually and Gary Stout d/b/a Dixie Glass Company, Appellees.
    No. 2002-CA-01336-COA.
    Court of Appeals of Mississippi.
    Dec. 9, 2003.

      Orvis A. Shiyou, attorney for appellant.
    Jack W. Land, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   CHANDLER, J., for the court.

¶ 1. Billy Millsaps appeals from an order of the Circuit Court of Forrest County dismissing his claim for punitive damages. As the order did not dispose of all the claims before the lower court, the order was not a final judgment from which an appeal could be taken. Therefore, we dismiss this appeal.

FACTS

¶ 2. Billy Millsaps filed a complaint against his employers, Gary Stout and Gary Stout, d/b/a Dixie Glass Company (hereinafter, “Dixie Glass”). Millsaps alleged that he was a participant in Dixie Glass’s employee health insurance plan, and that Dixie Glass deducted health insurance premiums from Millsaps’ pay. Millsaps alleged that Dixie Glass had never purchased health insurance for Mill-saps, but had instead converted Millsaps’ premium payments to Dixie Glass’s own use, causing damages. In addition to the conversion theory, Millsaps alternatively advanced theories of fraud and negligence. Millsaps requested $50,000 in actual damages, $500,000 in punitive damages, and attorney’s fees and costs.

¶ 3. After some discovery, Dixie Glass filed a “Motion for Partial Summary Judgment” on Millsaps’ punitive damages claim. In the motion, Dixie Glass admitted that Millsaps was enrolled in the company’s major medical insurance plan, that insurance for Millsaps was provided at no cost, and that $22.80 per week was deducted from Millsaps’ pay to insure Millsaps’ dependent. Dixie Glass further admitted that its major medical insurance policy lapsed on December 31, 1999. Dixie Glass stated that, upon receiving the insurer’s cancellation notice, Dixie Glass held company-wide meetings with employees to inform them of the cancellation. At the meetings, Dixie Glass offered its employees the option of procuring their own health insurance, or of allowing Dixie Glass to continue deducting premiums from their pay and to provide the same medical benefits previously provided by the lapsed policy. Dixie Glass averred that Millsaps was present at these meetings and agreed to allow the company to continue deductions and pay the medical bills of Millsaps and his dependent. Dixie Glass claimed that it deducted $17.17 from Millsaps’ weekly pay from January 1, 2000, until Millsaps left employment on September 18, 2000, for a total of $787.30. Dixie Glass stated that it paid $656.91 in medical bills that Millsaps and his dependent incurred during that time. In affidavits, Gary Stout and another employee stated that Millsaps voluntarily entered into the agreement.

¶ 4. In his response to the motion for summary judgment, Millsaps denied attending any employee meetings about the health insurance situation. Millsaps stated that Dixie Glass deducted more than $787.30 from his pay for health insurance. Millsaps did not deny that Dixie Glass had paid $656.91 in medical benefits, but attached allegedly unpaid medical bills showing expenses of $60 for dental work, a statement showing $514.63 for service on November 5, 2000, and a letter from a collection agency, dated September 29, 2000, for a hospital bill of $850.50. In affidavits, Millsaps and his ex-wife averred that they were twice denied medical care for their daughter because Millsaps’ dependent insurance was not valid. They averred that staff at medical clinics called Dixie Glass to verify coverage on Millsaps’ daughter and were told that there was no coverage. They stated that Gary Stout would not allow Millsaps to have a cyst removed from his face due to the lack of insurance. Millsaps averred that there was no insurance in effect when he went to have a tooth pulled.

¶ 5. In rebuttal, Dixie Glass argued that the only bill applicable to Millsaps’ period of employment was the $60 bill for dental work, and that Millsaps had failed to submit that bill to Dixie Glass for payment. Dixie Glass further argued that the statements in Millsaps’ affidavits constituted inadmissible hearsay. In an affidavit, Gary Stout averred that neither he nor anyone else at Dixie Glass ever refused to allow medical treatment of Millsaps or of his daughter.

¶ 6. In a memorandum opinion, the trial court found that the evidence presented a genuine issue of fact of whether Dixie Glass withheld $787.30 from Millsaps’ pay without Millsaps’ permission. The court found that it was undisputed that Dixie Glass paid $656.91 in medical expenses for Millsaps. The court found that, because Dixie Glass told inquiring health care providers that there was no coverage, Dixie Glass had not uttered false statements to providers about the existence of coverage. The court recited the standard for punitive damages, and concluded that Millsaps’ claim was not sufficient to allow the jury to consider an award of punitive damages. On July 26, 2002, the court ■ entered a separate order dismissing the claim for punitive damages with prejudice. On August 9, 2002, Millsaps filed a notice of appeal from the trial court’s order.

LAW AND ANALYSIS

¶ 7. Millsaps’ sole appellate argument is that the court improperly dismissed the punitive damages claim. Mississippi Rule of Civil Procedure 54(b) provides:

Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

¶ 8. The trial court’s dismissal of Mill-saps’ punitive damages claim did not adjudicate Millsaps’ claims for actual damages and attorney’s fees. The trial court never made an expressed determination that there was no just reason for delay, or directed the entry of final judgment as to Millsaps’ claim for punitive damages. As Millsaps’ claims for actual damages and attorney’s fees remained pending in the lower court, and the trial court never made a Rule 54(b) certification, the trial court’s order dismissing the punitive damages claim is interlocutory. Williams v. Delta Reg’l Med. Ctr., 740 So.2d 284, 285(¶ 7) (Miss.1999).

¶ 9. Mississippi Rule of Appellate Procedure 5(a) provides for appeals from an interlocutory orders “if a substantial basis exists for a difference of opinion on a question of law as to which appellate resolution may: (l)[m]aterially advance the termination of the litigation and avoid exceptional expense to the parties; or (2)[p]rotect a party from substantial and irreparable injury; or (3)[r]esolve an issue of general importance in the administration of justice.” Millsaps never sought or obtained permission for an interlocutory appeal. M.R.A.P. 5(a). We observe that Millsaps did file his notice of appeal within the fourteen days allowed for filing a petition for permission for an interlocutory appeal. M.R.A P. 5(a). We find that the question presented in this case does not compel our suspension of the procedural requirements of Rule 5(a) to allow an interlocutory appeal. M.R.A.P. 2(c); see Hobgood v. Koch Pipeline Southeast, Inc., 769 So.2d 838, 841(¶ 13) (Miss.Ct.App. 2000). Therefore, we dismiss this appeal for lack of an appealable final judgment.

¶10. THE APPEAL FROM THE JULY 26, 2002 ORDER OF THE CIRCUIT COURT OF FORREST COUNTY IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C. J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS AND GRIFFIS, JJ., CONCUR.


author: IRVING, J, for the Court.

text:
    Steven Paul PIERCE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00862-COA.
    Court of Appeals of Mississippi.
    Dec. 9, 2003.

      William Joseph Barnett, Jackson, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and IRVING, JJ.
   IRVING, J, for the Court.

¶ 1. A Lowndes County jury found Steven Paul Pierce guilty of two counts of armed robbery. After the trial, Pierce filed a motion for a new trial. He later filed a motion for a JNOV and an amended motion for a new trial. These motions were denied, and Pierce has perfected this appeal wherein he alleges that the evidence is lacking in both sufficiency and weight to support the jury’s verdict. He also argues that he received ineffective assistance of trial counsel.

¶ 2. Finding no reversible error, this Court affirms the jury’s verdict and the judgment of the trial court.

FACTS

¶ 3. Pierce owned and operated a bar in Lowndes County, Mississippi. Inside the bar were gambling poker machines for his patrons’ entertainment. Terry Myatt, Robert Flint and Dan Atkins went to Pierce’s bar one night for the purpose of playing pool and the poker machines. In order to play the poker machines, it was necessary for a patron to insert money into the machine which would register a certain amount of credits. The patron could then use the credits to play the machine. The object of the game was to accumulate credits. A patron, after accumulating as many credits as he could, would then proceed to the bar and cash out his credits for money.

¶ 4. Myatt, Flint and Atkins all played the poker machines when they first entered the bar. Flint later stopped gambling on the poker machines and played pool. After playing on the poker machines for a while, Atkins wanted to cash out his credits and informed Pierce of such. Within minutes after Atkins requested a cash out of his credits, Pierce told Myatt to cash out his credits as well. Myatt complied with Pierce’s request. Myatt then sat next to Atkins, and both waited to be paid their winnings.

¶ 5. Myatt testified that while they were waiting, Pierce came from behind the bar’s counter with an aluminum baseball bat. Pierce approached Flint with the bat and demanded that Flint give him the cards or the fake/laminated money which he believed Flint used on the poker machines. Pierce claimed that all of the men were using laminated money to get more credits on the poker machine. Flint denied any knowledge or possession of any such device. Pierce began poking Flint in the stomach with the bat. Pierce then chased Flint around the pool table and swung the bat toward Flint. Then, Pierce walked towards Myatt and Atkins and accused them of robbing the poker machines as well. Pierce informed the men that he had videotaped them the previous night and accused them of robbing the poker machine of $400 the previous night. Myatt denied any knowledge of having laminated money. Pierce then punched Myatt in his face and struck Myatt’s body with the bat. Atkins then told Pierce that he had some information about the laminated money. Atkins and Pierce, with his bat, went outside to discuss the matter.

¶ 6. The next sequence of events is not entirely clear from the record. However, what is clear is that when Pierce reentered the bar, Atkins was not with him. Still holding the bat, Pierce made Myatt and Flint take off their clothing in any effort to find the laminated money. Pierce did not find any laminated money on Flint and, after taking $400 from him, allowed him to leave the bar. Myatt did have laminated money on him. Myatt gave Pierce the laminated money and $220. When Myatt prepared to leave the bar, Pierce came from behind the bar with a gun and pointed it toward Myatt’s head. Additional, pertinent facts will be related during the discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Sufficiency and Weight of the Evidence

¶ 7. Pierce alleges in his statement of the issues that his motions for a JNOV and for a new trial were improperly denied. However, in his brief, his only assertion is that the State failed to prove that he possessed the specific intent to rob the victims. He argues that the evidence supports only the conclusion that he attempted to get from the victims the laminated strip or card that was being used to defraud and steal from him, that there was a complete lack of evidence tending to show that he specifically intended to rob the victims.

¶ 8. In considering Pierce’s challenge to the sufficiency of the evidence, we are required to consider the evidence in the light most favorable to the State, and all credible evidence consistent with Pierce’s guilt must be accepted as true. McRee v. State, 732 So.2d 246, 249(¶ 9) (Miss.1999). We must review all of the evidence in the light most consistent with the jury’s ver-diet. Smith v. State, 802 So.2d 82, 85(¶ 10) (Miss.2001). “If the facts and inferences so considered point in favor of the accused with sufficient force that reasonable persons could not have found beyond a reasonable doubt that he was guilty, reversal and discharge are required.” Mangum v. State, 762 So.2d 387, 341-42(¶ 11) (Miss.2000).

¶ 9. We agree with Pierce that specific intent to steal must be shown by testimony in robbery cases. Thomas v. State, 278 So.2d 469, 472 (Miss.1973); see also Cooper v. State, 218 So.2d 874 (Miss.1969). The Mississippi Supreme Court has held that “[w]here a crime consists of an act, combined with a specific intent ... mere general malice or criminal intent is insufficient, and the requisite, specific intent must be shown as a matter of fact, either by direct or circumstantial evidence.” Hydrick v. State, 246 Miss. 448, 452, 150 So.2d 423, 425 (1963).

¶ 10. Based on the evidence which we have already discussed in the earlier portion of this opinion, we have no difficulty concluding that the State presented sufficient evidence from which the jury could find that Pierce possessed the requisite intent to rob his victims of their money as well as take by force the laminated money strip.

¶ 11. The testimony presented by Myatt and Flint provides direct evidence of Pierce’s specific intent to rob the men who he alleged were defrauding his poker machines. Pierce made Myatt and Flint disrobe and empty their pockets. Pierce took the money that was inside the men’s pockets. Furthermore, Allen Redden, a co-owner of some of the poker machines, attested that he saw Pierce command the men to empty their pockets because he wanted their money.

¶ 12. Redden testified that Pierce called him over to the bar on the night in question and asked him to count the money in the poker machines to determine if he was correct in his suspicions that the poker machines were being defrauded. Pierce told Redden that the poker machines were $400 short on the previous night. Redden attested that after he counted the poker machines, he found they were $270 short.

¶ 13. Despite this shortage, there was no evidence presented at the trial that Flint and Myatt were the culprits on the night in question or the previous night. Although Myatt was found with the laminated money strip, he was never paid for the credits he earned on the night in question. In fact, Myatt gave Pierce $220. There was no evidence presented that this $220 had been paid by Pierce to Myatt for credits which Myatt had accumulated on the poker machines at some earlier time. The evidence is, that while Myatt waited with Atkins to be paid, Pierce came from behind the bar with a baseball bat, attacked Flint, and a short while later, attacked Myatt. It also is undisputed that Pierce, through these acts of intimidation, made Flint and Myatt empty their pockets of $620 which he then put into his own pockets. We find this issue to be totally devoid of merit.

¶ 14. We turn now to Pierce’s contention that the evidence lacked sufficient weight to support the verdict. As distinguished from a JNOV, a motion for a new trial asks this Court to vacate the judgment on grounds related to the weight of the evidence undergirding the verdict. The appellate standard of review for claims that a conviction is against the overwhelming weight of the evidence is as follows:

[This court] must “accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” A new trial will not be ordered unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an “unconscionable injustice.”

Smith, 802 So.2d at 85-86(¶ 11) (citing Crawford v. State, 754 So.2d 1211, 1222(¶30) (Miss.2000)). Matters regarding the weight and credibility of the evidence are to be resolved by the jury. McRee, 732 So.2d at 249(¶ 9).

¶ 15. In his argument in support of his weight-of-evidence claim, Pierce does not discuss or analyze the evidence to show how it is so lacking that permitting the verdict to rest on-it will sanction an unconscionable injustice. Instead of discussing the evidence, Pierce argues that the trial court’s denial of his motion in limine and refusal to admit, for impeachment purposes, a transcript of a pretrial hearing entitles him to a new trial. We will discuss these in turn.

¶ 16. Pierce’s motion in limine sought to prohibit the State from adducing evidence regarding the pistol incident which we discussed during our recitation of the facts. Pierce explains that the trial court erred when it, citing Neal v. State, 451 So.2d 743 (1984), found that his pointing the pistol at Myatt’s head was a part of a single transaction or occurrence or a closely related series of transactions or occurrences and was admissible to show intent, as well as to allow the State to present the whole picture or the whole story of what transpired. Pierce propounds that the gun was irrelevant to his armed robbery charges.

¶ 17. Matters regarding “[r]ele-vancy and admissibility of evidence are largely within the discretion of the trial court, and [an appellate] Court will reverse only where that discretion has been abused.” Underwood v. State, 708 So.2d 18, 31(¶ 41) (Miss.1998) (quoting Hentz v. State, 542 So.2d 914, 917 (Miss.1989)).

Evidence of prior offenses committed by a defendant, not resulting in a conviction, is generally inadmissible either for impeachment purposes or as a part of the State’s case in chief. On the other hand, our law recognizes certain exceptions to the rule. Proof of another crime is admissible where the offense charged and that offered to be proved are so interrelated as to constitute a single transaction or occurrence or a closely related series of transactions or occurrences .... and there is an apparent relation or connection between the act proposed to be proved and that charged, where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge. Evidence of other crimes or bad acts is also admissible in order to tell the complete story so as not to confuse the jury.

Id. at 32(¶ 41) (emphasis added).

¶ 18. The testimony in this case regarding Pierce’s brandishing a pistol was not used by the State to prove his character or that he acted in conformity therewith. The trial court found that the testimony completely told the story of Pierce’s armed robbery of Flint and Myatt. We cannot say the trial court abused its discretion with such a finding.

¶ 19. The next argument Pierce raises under this issue is another allegation of evidentiary error. Pierce argues that the trial court erred by not admitting a transcript of the pretrial hearing which was offered to impeach Flint’s credibility. Pierce claims that the transcript did not become available until the morning of Flint’s testimony. When Pierce attempted to impeach Flint with the transcript, the State objected on the grounds that it was a discovery violation. After the State had an opportunity to view the transcript, the State further objected on authenticity and foundational grounds. Pierce then withdrew his offer of the transcript into evidence. Since Pierce abandoned his attempt to get the transcript into evidence, he waived his right to complain about its non-admission.

¶ 20. In his last contention under this issue, Pierce claims that the jury was tainted due to a juror’s failure to disclose an alleged past negative incident with him. Additionally, Pierce explains that two jurors provided untruthful information and failed to disclose material information during voir dire.

¶ 21. The first juror that Pierce complains about is juror Deloris Brooks. He contends that Brooks failed to disclose material information. He insists that Ms. Brooks never spoke of her knowledge of Pierce’s check cashing business or even knowing Pierce. However, a review of the voir dire presents a different picture. The State asked the venire members, “is there any of ya’ll here who have ... used any of [Pierce’s] businesses? ... I think its called Easy Check Cashing.” In response to the question, Ms. Brooks raised her hand. She indicated that she had indeed used the business but that she had never met Pierce. When asked if knowing of Pierce’s ownership of the check cashing business would affect her in the case, Ms. Brooks responded that it would not.

¶ 22. Pierce also claims that juror Carolina Del Pilar Davis lied during voir dire about having been inside one of Pierce’s businesses. Brenda Thomas, Pierce’s sister and co-owner of Military Shell, testified at the hearing on the motion for new trial. Thomas avowed that during Pierce’s trial she informed Pierce’s trial attorney that Davis had been inside Military Shell playing gambling machines and smoking marihuana. Thomas further testified that Pierce and Ms. Davis had an altercation when Pierce asked Davis to leave the establishment and that she informed Pierce’s attorney of this fact as well. Davis was called to testify at the hearing on the motion for a new trial and she essentially denied any allegations of prior knowledge of Pierce, altercations with Pierce, or use of Pierce’s businesses.

¶ 23. The trial judge found Thomas’s testimony to be incredulous. Additionally, the trial judge found Davis’s testimony to be credible. We find no reason to overturn the trial judge’s.finding regarding the credibility of Davis’s testimony vis-a-vis Thomas’s. Therefore, we find no merit to Pierce’s assertion that juror Brooks failed to disclose material information and that juror Davis gave false information during voir dire.

2. Ineffective Assistance of Counsel

¶ 24. Pierce next contends that his trial counsel was ineffective. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To successfully claim ineffective assistance of counsel, Pierce must meet the two-pronged test set forth in Strickland and adopted by the Mississippi Supreme Court. Stringer v. State, 454 So.2d 468, 476 (Miss.1984). Under the Strickland test, Pierce must prove that (1) his attorney’s performance was defective and (2) such deficiency deprived him of a fair trial. Id. at 477. Such alleged deficiencies must be presented with “specificity and detail” in a non-conclusory fashion. Perkins v. State, 487 So.2d 791, 793 (Miss.1986). “The deficiency and any prejudicial effect are assessed by looking at the totality of circumstances.” Hiter v. State, 660 So.2d 961, 965 (Miss.1995). This review is highly deferential to the attorney and there is a strong presumption that the attorney’s conduct fell within the wide range of reasonable professional assistance. Id.

¶ 25. Pierce must show that there is a reasonable probability that but for his trial attorney’s errors, he would have received a different result in the trial court. Stringer v. State, 627 So.2d 326, 329 (Miss.1993). With respect to the overall performance of the attorney, “counsel’s failure to file certain motions, call certain witnesses, ask certain questions, or make certain objections falls within the ambit of trial strategy.” Cole v. State, 666 So.2d 767, 777 (Miss.1995). In order to find for Pierce on the issue of ineffective assistance of counsel, this Court will have to conclude that his trial attorney’s performance as a whole fell below the standard of reasonableness and that the mistakes made were serious enough to erode confidence in the outcome of the trial below. Coleman v. State, 749 So.2d 1003, 1012(¶27) (Miss.1999).

¶26. Pierce points out that his trial attorney should have requested a continuance for the potential discovery violation. Pierce also argues that his trial attorney did not inform the court in a timely manner that two jurors did not truthfully answer questions during voir dire. Lastly, Pierce insists his trial attorney was ineffective because he did not request a jury instruction for a lesser-included offense for the jury’s consideration.

¶ 27. For several reasons, we find that Pierce has failed to meet either prong of the Strickland test. We discuss each of Pierce’s contentions in turn.

¶ 28. First, the evidence does not support a finding that a discovery violation occurred, notwithstanding the fact that the prosecution initially objected on that basis and that the trial court appears to have accepted the discovery-based objection as valid. Rule 9.04 of the Uniform Circuit and County Court Rules requires reciprocal discovery from the defendant of statements made by witnesses the defendant may offer at trial during his case in chief. The transcript which the trial court disallowed was purportedly a transcript of testimony that witness Flint gave during a preliminary hearing. Flint was not offered as a witness by the defense. Therefore, Pierce’s trial counsel was under no obligation to tender a copy of the transcript of Flint’s preliminary hearing testimony to the State.

¶ 29. Second, as we have already discussed, the record does not support Pierce’s allegation that jurors Brooks and Davis withheld material information or gave false information during voir dire. It necessarily follows that counsel cannot be faulted for not bringing the jurors’ lack of candor to the attention of the trial judge if the jurors, in the first place, had not been dishonest or evasive in their answers to unambiguous questions asked during voir dire.

¶ 30. Third, Pierce’s contention that his trial attorney erred by not offering a jury instruction on simple assault is also without merit. “[T]he evidence in a particular case generally warrants granting a lesser offense instruction if a rational or a reasonable jury could find the defendant not guilty of the principal offense charged in the indictment yet guilty of the lesser-included offense.” Mackbee v. State, 575 So.2d 16, 23 (Miss.1990).

¶31. “A lesser-included-offense instruction can be given only if there is an evidentiary basis for it, and such an instruction cannot be given on the basis of speculation.” Reddix v. State, 731 So.2d 591, 594(1115) (Miss.1999). In the case sub judice, the record offers no evidentiary basis to suggest Pierce committed simple assault. Since the evidence did not support a lesser offense or lesser-included-offense instruction, Pierce cannot show that he was prejudiced because of his trial counsel’s failure to offer such an instruction.

¶ 32. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF CONVICTION OF TWO COUNTS OF ARMED ROBBERY AND SENTENCE OF TWO FIFTEEN-YEAR CONCURRENT TERMS OF IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN YEARS SUSPENDED ON EACH COUNT, AND PAYMENT OF A FINE OF $5,000 AND RESTITUTION OF $220 IN COUNT I, AND PAYMENT OF RESTITUTION IN THE AMOUNT OF $400 IN COUNT II IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.

      . The laminated money is also known as a money strip. A money strip is a laminated twenty dollar bill that allows a player to accumulate credits without putting money into the poker machine. A player inserts the money strip into the poker machine and then pulls it out, but the credits which are registered on the machine as a result of the insertion of the laminated bill remain on the machine after the laminated bill is removed.

      . The relevant portion of Section 97-3-7 states, "A person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (c) attempts by physical menace to put another in fear of imminent serious bodily harm-" Miss.Code Ann. § 97-3-7(1) (Supp.2003).


author: HOUSTON, Justice.

text:
    Ex parte CENTRAL ALABAMA CONFERENCE, African Methodist Episcopal Zion Church in America; et al. (In re Central Alabama Conference, African Methodist Episcopal Zion Church in America v. Carl Moore et al.)
    1011946.
    Supreme Court of Alabama.
    Jan. 17, 2003.
    Robert T. Meadows III of Capell & Howard, P.C., Opelika, for petitioners.
    Submitted on petitioners’ brief only.
   HOUSTON, Justice.

This appeal involves a property dispute between the Central Alabama Conference, African Methodist Episcopal Zion Church in America (“Central Alabama Conference”) and the congregation of Franklin Church, located in Macon County. The trial court granted Franklin Church’s motion for a summary judgment and determined that Franklin Church owned the property on which the church building was located. We issued a writ of certiorari to review the Court of Civil Appeals’ affir-mance, without an opinion, of the trial court’s summary judgment. Central Alabama Conference, African Methodist Episcopal Zion Church in America v. Carl Moore (No. 2000761, May 17, 2002), - So.2d - (Ala.Civ.App.2002) (table). We reverse and remand.

The African Methodist Episcopal Zion Church (“the AME Zion Church”) is a hierarchical church with member churches located throughout the United States. The AME Zion Church was first organized in the United States in 1776. The Central Alabama Conference of the AME Zion Church, which presides over all AME Zion member churches in Alabama, was organized approximately 130 years ago. All AME Zion member churches follow “The Book of Discipline of the AME Zion Church,” which governs member churches with respect to such things as their articles of faith, church government, title to church property, appointment of pastors and presiding elders, the power and authority of bishops, and the organization of annual and general conferences.

Franklin Church, which has maintained a place of worship in Macon County for more than 130 years, has long been affiliated with the AME Zion Church. In the late 1860’s, J.A. Chapman conveyed two acres of land to Franklin Church. The original deed was lost; it was replaced by a deed dated July 17, 1920, which shows the conveyance of the property from Chapman to the “Trustees of Franklin Church.” On April 12, 1947, the trustees of Franklin Church deeded the property to the “Trustees of the Franklin AME Zion Church.” The preamble to the 1947 deed stated that the 1920 deed should have stated that the property was deeded to the “Trustees of the Franklin AME Zion Church.” The final deed, dated November 14, 1999, conveyed the property from the “Trustees of Franklin AME Zion Church” back to the “Trustees of Franklin Church.” Two weeks after the final deed was executed, Franklin Church notified the Central Alabama Conference that it was no longer an AME Zion member church.

Shortly thereafter, the trustees and members of Franklin Church sought in-junctive relief to prevent representatives of the Central Alabama Conference from using or entering the property on which Franklin Church is located. The Central Alabama Conference filed a counterclaim seeking a judgment declaring that the Central Alabama Conference owns the property on which Franklin Church is situated. Franklin Church filed a motion for a summary judgment; the trial court granted the motion, after determining that Franklin Church owns the property at issue. The Central Alabama Conference appealed.

The Central Alabama Conference argues that allowing Franklin Church to unilaterally sever its longstanding relationship with the AME Zion Church contradicts prior decisions of this Court. Specifically, the Central Alabama Conference points to African Methodist Episcopal Zion Church in America, Inc. v. Zion Hill Methodist Church, Inc., 534 So.2d 224 (Ala.1988), in which this Court held that the real property of Zion Hill Methodist Church, the local church, was the property of the AME Zion Church in America, the hierarchical church, under the provisions of the hierarchical church’s governing laws. The Central Alabama Conference contends that the Court of Civil Appeals’ affirmance of the trial court’s summary judgment was incorrect in light of Zion Hill because, it says, there were material issues of fact in dispute as to the effect and interpretation of the deeds conveying the property. We agree.

Although this Court cannot resolve disputes concerning the spiritual or ecclesiastical affairs of a church, we can resolve disputes concerning property rights. Central Alabama Conference of the AME Zion Church in America v. Crum, 746 So.2d 1013, 1014-15 (Ala.Civ.App.1999). “However, the First Amendment prohibits a court’s resolving property disputes on the basis of religious practice or doctrine.” Id. at 1015. Alabama courts have adopted the “neutral-prineiples-of-law” approach applied by the United States Supreme Court in Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969). Crum, 746 So.2d at 1016. Under the “neutral-principles-of-law” approach, the court considers, in secular terms, “the language of the deeds, the charter of the local church, any applicable state statutes, and any relevant provisions contained in the discipline of the national church” as a means of resolving disputes. Crum, 746 So.2d at 1015.

The Central Alabama Conference argues that Franklin Church is bound by the Book of Discipline of the AME Zion Church. The Central Alabama Conference contends that the Book of Discipline mandates a finding that the property belongs to the AME Zion Church; it says that a contrary finding would conflict with this Court’s decision in Zion Hill. In Zion Hill, the local church had withdrawn from its association with the hierarchical church. We found that the local church had agreed to be governed by the hierarchical church’s rules, and we held that the hierarchical church was the equitable owner of the property. We based our decision solely on whether the local church had been associated with the hierarchical church and whether the local church had agreed to be bound by the hierarchical church’s discipline. However, unlike the case before us, Zion Hill did not involve a deed, and the Court did not discuss the effect a deed would have had on the dispute.

In Haney’s Chapel United Methodist Church v. United Methodist Church, 716 So.2d 1156 (Ala.1998), the national church sued to quiet title to the church property when the congregation of the local church voted to withdraw from the national church. After conducting an ore tenus hearing, the trial court found in favor of the national church based on the national church’s governing discipline. However, this Court found that the evidence indicated “that the ... grantors intended to convey the property to the trustees of the local church and to exclude the involvement and control of the national church.” Haney’s Chapel, 716 So.2d at 1159-60. Thus, we reversed the trial court’s judgment, holding that the language of the deed, not the governing discipline, controlled. Id. at 1160.

Likewise, Crum, supra, involved another property dispute between a local church and a national church where deeds were involved. After conducting an ore tenus hearing, the trial court found that because the deeds in question did not clearly state that the property belonged to the national church, and because the original grantors did not intend to deed the property to the national church, the local church owned the property. The Court of Civil Appeals affirmed the trial court’s ruling. Crum, 746 So.2d at 1017.

In the instant case, three deeds are relevant: the 1920 deed from J.A. Chapman to the “Trustees of Franklin Church”; the 1947 deed from the trustees of Franklin Church to the “Trustees of the Franklin AME Zion Church”; and the 1999 deed from the trustees of the Franklin AME Zion Church to the “Trustees of Franklin Church.” Those deeds are ambiguous and allow for differing interpretations as to the ownership of the property. Unlike Haney’s Chapel and Crum, there is no indication that the grantors intended to convey the property to the local church and to exclude the hierarchical church.

In both Haney’s Chapel and Crum, extrinsic evidence presented at an ore tenus hearing helped determine the intent of the relevant deeds. 716 So.2d at 1157, 746 So.2d at 1014. No such hearing was conducted in the present case. Further, the AME Zion Church presented evidence indicating that Franklin Church, throughout its history, has accepted benefits from the AME Zion Church. The AME Zion Church has provided pastors, the pastors’ health insurance and retirement benefits, worship materials, and financial assistance in certain situations. Franklin Church has followed the Book of Discipline, it has been known throughout the community as an AME Zion member church, and it has followed the customs and policies of the AME Zion Church. These facts support the Central Alabama Conference’s claim that a hierarchical relationship exists between the AME Zion Church and Franklin Church. In Zion Hill, this Court held that when national and local churches have participated in a longstanding hierarchal relationship, the local church may not unilaterally sever that relationship. 514 So.2d at 228.

The summary judgment prohibits the Central Alabama Conference from presenting evidence at an ore tenus hearing (such as was held in both Haney’s Chapel and Crum) to help define the meaning of the deeds in question. 716 So.2d at 1157, 746 So.2d at 1014. In such a hearing, the trial court would follow the “neutral-principles-of-law” approach and examine the deeds, the Book of Discipline, and other extrinsic evidence to help settle the current property dispute. See Crum, 746 So.2d at 1016.

In reviewing this case de novo and viewing all evidence in a light most favorable to the nonmovant Central Alabama Conference (pursuant to our standard in reviewing a summary judgment), we conclude that a genuine issue of material fact exists as to who is the true property owner. See Slay v. Keller Indus., Inc., 823 So.2d 623, 624 (Ala.2001). Specifically, a dispute exists as to the intent of the initial grantors of the property: whether they intended to convey the property to the Franklin Church to the exclusion of any national church or whether they intended to convey the property to the AME Zion Church. Likewise, the “trust clause” in the Book of Discipline, as it relates to the 1947 deed deeding the property to the “Trustees of the Franklin AME Zion Church,” creates a genuine issue of material fact as to who is the true property owner.

Based upon the foregoing, we hold that the trial court erred in granting Franklin Church’s motion for a summary judgment. Accordingly, the judgment of the Court of Civil Appeals is reversed and the cause is remanded for the entry of an order consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

      . As an AME Zion member church, Franklin Church was bound by a provision found in the Book of Discipline, which requires the following clause to be placed in any written instrument conveying the church’s property:
      “In Trust that said premises shall be used, kept[,] maintained, and disposed of as a place of Divine Worship for the use of the Ministry, and Membership of the African Methodist Episcopal Zion Church in America, subject to the provisions of the Discipline, Usage, and Ministerial appointments of said Church, as from time to time authorized and declared by the General Conference of said Church and by the Annual Conference within whose bounds the said premises are situated. This provision is solely for the benefit of the [grantee], and the grantor reserved no right or interest in said premises.’’
      Although the deeds that conveyed the property to Franklin Church did not contain this clause, the Book of Discipline does contain the following provision:
      "[T]he absence of the trust clause ... in deeds and conveyances previously executed, shall in no way exclude a local church from, or relieve it of, its African Methodist Episcopal Zion Church connectional responsibilities nor shall it absolve a local congregation or Board of Trustees of its responsibility to the African Methodist Episcopal Zion Church, provided that the intent and desire of the founders and/or the later congregations and Board of Trustees is shown by any or all of the following indications: (a) the conveyance of the property to the Trustees of the local African Methodist Episcopal Zion Church or any Trustees of the local African Methodist Episcopal Zion Church or any of its predecessors; (b) the use of the name, customs and policy of the African Methodist Episcopal Zion Church in such a way as to be thus known to the community as part of this denomination; (c) the acceptance of the pastorate of ministers appointed by a bishop of the African Methodist Episcopal Zion Church, or employed by the presiding elder of the district in which it is located.”

      . Additionally, the local church in Cmm was incorporated. Ala.Code 1975, § 10-4-22, provides that unless clearly stated in the deed or voted on by a majority of the congregation, a church corporation organized under the laws of Alabama shall remain independent from the regulation of a higher church "insofar as the management, control, disposition or alienation of its real property is concerned.” This statute is not applicable in the present case because Franklin Church is unincorporated.


author: MURDOCK, Judge.

text:
    CENTRAL ALABAMA CONFERENCE, African Methodist Episcopal Zion Church in America v. Carl MOORE et al.
    2000761.
    Court of Civil Appeals of Alabama.
    April 18, 2003.
    Robert T. Meadows III of Walker, Hill, Adams, Umbach, Meadows & Walton, Ope-lika, for appellant.
    Jim L. DeBardelaben of DeBardelaben, Norwood & Westry, P.C., Montgomery, for appellees.
   After Remand from the Alabama Supreme Court

MURDOCK, Judge.

This court affirmed the trial court’s summary judgment, without an opinion. Central Alabama Conference, African Methodist Episcopal Zion Church in America v. Carl Moore, (No. 2000761, May 17, 2002) — So.2d - (Ala.Civ.App. 2002) (table). This court’s judgment has been reversed and the cause remanded by the Supreme Court of Alabama. Ex parte Central Alabama Conference, African Methodist Episcopal Zion Church in America, 860 So.2d 865 (Ala.2003). On remand to this court, and in compliance with the Supreme Court’s opinion, the summary judgment entered by the trial court is hereby reversed, and the cause is remanded for the entry of an order consistent with the Supreme Court’s opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

YATES, P.J., and CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.