author: WALLER, Justice, McRAE, Presiding Justice,

text:
    Clinton Grice ROTENBERRY, Jr. v. Scottye R. HOOKER.
    No. 2002-CA-00096-SCT.
    Supreme Court of Mississippi.
    Nov. 6, 2003.
    Rehearing Denied Jan. 22, 2004.

      Vaughn Davis, Jackson, attorney for appellant.
    Dana J. Swan, Clarksdale, attorney for appellee.
   WALLER, Justice,

for the Court.

¶ 1. Scottye R. Hooker and Clinton Grice Rotenberry, Jr., were sole and equal beneficiaries of a trust. Hooker made an offer to sell Rotenberry her one-half interest in a farm held by the trust. Rotenber-ry accepted the offer, but Hooker rejected the acceptance because of a perceived misconstruction of the offer. Rotenberry’s claim for specific performance was denied because the chancery court found that there was never an agreement with regard to the contract price and a unilateral mistake permitted rescission of the contract. We find that the chancellor was not manifestly wrong in finding unilateral mistake which warranted rescission of the contract.

FACTS

¶ 2. Clinton Gilliam Rotenberry established a trust, the corpus of which consisted of farm land, bank stocks, and other accounts. The trust provided for distribution to the remainder beneficiaries, Clinton G. Rotenberry, Jr., and Scottye R. Hooker, upon the death of the last remaining income beneficiary. The last remaining income beneficiary died in 1997. At the time of termination, the trust’s corpus consisted of Trustmark bank stock, various bank accounts, a leasehold interest in two lots on the reservoir, a judgment entered against a prior trustee, several policies of life insurance, and a 3,262 acre farm in Panola and Tallahatchie Counties.

¶ 3. The farm is the asset at issue in this litigation. Rotenberry and Hooker each had a one-half interest in the remainder assets. A prior trustee had borrowed money from the Met Life Company and had given a deed of trust on the farmland to secure the indebtedness. This debt had a balance of $459,000 at the time of the termination of the trust,

¶ 4. Upon termination, the trustee began preparing for distribution of the assets. Efforts were made to distribute separate assets to Rotenberry and Hooker. Roten-berry made it known that he was interested in purchasing Hooker’s portion of the farmland. The trustee had been able to collect $150,000 a year from leasing the farmland. If Rotenberry and Hooker were unable to reach an agreement on the 3,262 acres, then the trustee was prepared to partition the property, with the result being that each would take one-half of the property and each would assume one-half of the Met Life debt.

¶ 5. On December 2, 1998, Patrick H. Johnson, as attorney for Hooker, communicated an offer to sell her interest in the farmland to Rotenberry’s attorney. The letter specifically stated, “Earlier today I spoke with Scottye and she authorized me to offer to sell to Clint her undivided one-half interest in the 3,262 acres of the Pano-la and Tallahatchie County farm land for $1,062,500 less the balance of the debt due Met Life.” The offer made “time of the essence” and allowed only one day for acceptance.

¶ 6. On December 3, 1998, Rotenberry authorized his attorney to accept the offer. His offer was communicated by letter transmitted by facsimile which stated, “I am authorized by Clint to accept and do hereby accept the offer of Scottye Hooker to sell to Clint her undivided one-half interest in the 3,262 acres of the Panola and Tallahatchie County farm land for $1,062,500 less the balance of the debt due Met Life.”

¶ 7. On December 7, 1998, Rotenberry, through his attorney, sent a second letter to Hooker’s counsel stating that he was willing to place $100,000 in escrow pending the completion of the sale if Hooker would sign a document authorizing Rotenberry to enter into a farm lease pending the closing. The farm lease from the preceding year had expired, and Hooker was attempting to secure a new farm lease to ensure the land would continue to be active and income producing.

¶ 8. On December 9, 1998, Rotenberry, through his attorney, sent a third letter to Hooker’s counsel stating he was immediately ready to tender the sum of $603,500.00 ($1,062,500.00 less the $459,000.00 balance due on the Met Life debt) to finalize the transaction. This letter brought an immediate response from Hooker’s attorney who considered the assessment of all of the debt instead of one-half as a counteroffer and rejected the same. The December 9 letter stated:

It was my client’s intent on December 3, 1998, as it has been over the last several months of negotiations, to establish a price for her interest in the farmland and to proceed from there with negotiating the remainder of the transaction once the offer was accepted.... The facts and pattern of conduct state a very clear and convincing case that this sale was and continued up to this point to be in the process of negotiation and had never been finalized.... Your client’s December 9, 1998 offer to purchase Scottye’s one half undivided interest less the total on the entire piece of property rather than the debt attributable to her one half interest flies in the face of equity and is totally unacceptable and is hereby rejected.

Rotenberry’s attorney disagreed with this assessment and responded with a letter dated December 9, 1998, indicating a deal was struck and he was ready to perform. This letter stated:

You attempt to characterize my earlier letter of December 9, 1998, as a new offer but it obviously is not. It is merely a letter tendering full payment of the purchase price which had been agreed to in prior written communications between us which were authorized and approved by our clients.... [T]he original offer by your client was not for $1,062,500 less one half of the debt due to Met Life but was for the amount ‘less the balance of the debt due Met Life’ This offer has been made by your client and accepted by mine. It only remains to be fulfilled by both of our clients and, as I have informed you, my client stands ready to perform.

¶ 9. Rotenberry thereafter filed a complaint seeking specific performance. A bench trial was held in which testimony was heard from only two witnesses, the attorneys who represented the parties at the time of the alleged offer and the alleged acceptance. The chancellor denied Rotenberry’s request for specific performance and found that there was no meeting of the minds regarding the amount of Met Life debt to be deducted. She then applied the doctrine of unilateral mistake and rescinded the contract.

STANDARD OF REVIEW

¶ 10. The initial question of whether a contract is ambiguous is a matter of law. Lamb Constr. Co. v. Town of Renova, 573 So.2d 1378, 1383 (Miss.1990). If found ambiguous, the subsequent interpretation of the contract is a finding of fact. Id. We will uphold a chancellor’s findings of facts unless they are manifestly wrong or against the overwhelming weight of the evidence. Richardson v. Riley, 355 So.2d 667, 668 (Miss.1978).

DISCUSSION

I. WHETHER THE CHANCERY COURT ERRED BY FINDING THAT THERE HAD BEEN NO MEETING OF THE MINDS OF THE PARTIES.

¶ 11. Rotenberry argues that Hooker is procedurally barred from raising the issue of ambiguity because she failed to plead ambiguity in the trial court. He.also asserts that the chancellor erred by finding there was no meeting of the minds regarding the amount of Met Life debt to be deducted from the price stated in Hooker’s offer.

¶ 12. The argument that Hooker is barred from raising the issue of contract ambiguity because of a procedural bar is without merit. We have held that “ambiguity is not a defense that one must affirmatively set forth.” Century 21 Deep South Props., Ltd. v. Keys, 652 So.2d 707, 717 (Miss.1995). “Ambiguity analysis, unlike affirmative defense analysis, is by its very nature a necessary step in the examination of every contract.” Id. at 717. While not explicitly set out as an affirmative defense, Hooker did, on the first page of her answer, state, “The offer is ambiguous in that the term ‘the debt’ is a broad reference at best which could be construed and interpreted several different ways.”

¶ 13. Rotenberry argues that the chancellor erred in finding there was no meeting of the minds as to the price in the agreement and allowing extrinsic evidence. We agree. The elements of a valid contract are: “(1) two or more contracting parties, (2) consideration, (3) an agreement that is sufficiently definite, (4) parties with legal capacity to make a contract, (5) mutual assent, and (6) no legal prohibition precluding contract formation.” Lanier v. State, 635 So.2d 813, 826 (Miss.1994). A contract is unenforceable if the material terms are not sufficiently definite. Leach v. Tingle, 586 So.2d 799, 802 (Miss.1991). Price is an essential term that must be stated with specificity. Id. at 803. The contract fails when the price has not been stated with specificity. Id.

¶ 14. When examining a contract, a court should first examine the four corners of the contract to determine how to interpret it. McKee v. McKee, 568 So.2d 262, 266 (Miss.1990). If the language in the contract is clear and unambiguous the intent of the contract must be effectuated. Pfisterer v. Noble, 320 So.2d 383, 384 (Miss.1975) See also Pursue Energy Corp. v. Perkins, 558 So.2d 349, 352 (Miss.1990). Vagueness and ambiguity are more strongly construed against the party drafting the contract. Lamb Constr. Co. v. Town of Renova, 573 So.2d at 1383. Only when the intent of the parties is not clear the Court should then resort to extrinsic evidence. Perkins, 558 So.2d. at 353. Hooker’s original letter which offered to sell her half of the farm states “the price less the amount due Met Life.” Nowhere in the letter does it indicate Hooker would only pay one-half of the amount owed Met Life. Since the letter was clear and unambiguous the chancellor should not have looked outside its four corners to determine the parties’ intentions. Once accepted by Rotenberry, Hooker’s letter offering to sell her interest in the land created a valid agreement.

II. WHETHER THE CHANCELLOR ERRED BY FINDING THAT THE DOCTRINE OF UNILATERAL MISTAKE REQUIRES THE CONTRACT TO BE RESCINDED.

¶ 15. Rotenberry argues that the chancellor erred in finding that Hooker was entitled to recision of the contract due to unilateral mistake. He claims that Hooker is barred from raising the issue of unilateral mistake on appeal because she failed to raise the issue in the trial court, and that the evidence does not support a finding of unilateral mistake. We do not agree.

¶ 16. While Hooker did not assert unilateral mistake in her pleadings, the chancellor made specific findings in resolving the issue. Therefore we are not limited in our review of the issue. See Boutwell v. Merritt, 232 Miss. 811, 815 100 So.2d 604, 605 (1958).

¶ 17. We hold that the chancellor’s finding of unilateral mistake was not manifestly wrong. In Mississippi, equity will prevent an intolerable injustice such as where a party has gained an unconscionable advantage by mistake and the mistaken party is not grossly negligent:

But where the mistake is of so fundamental a character, that the minds of the parties have never, in fact, met; or where an unconscionable advantage has been gained, by mere mistake or misapprehension; and there was no gross negligence on the part of the plaintiff, either in falling into the error, or in not sooner claiming redress; and no intervening rights have accrued; and the parties may still be placed in statu quo; equity will interfere, in its discretion, in order to prevent intolerable injustice. This is the clearly defined and well established rule upon the subject, in courts of equity, both in England and America.

Miss. State Building Comm’n v. Becknell, 329 So.2d 57, 60-61 (Miss.1976) (quoting State Highway Comm’n v. State Constr. Co., 203 Or. 414, 280 P.2d 370, 380 (1955) (italics in original & boldface added)).

¶ 18. The chancellor reviewed the dealings between the parties and found that neither party had an obligation to pay any more than one-half of the debt. As the chancellor noted, “[i]f the parties could not agree upon a tenant to lease the property in order to keep the property active and producing income, in which both parties would be entitled to share equally in the profits, then why would [Hooker] agree to sell her interest less the debt to be deducted from the asking price.” It is simply counterintuitive to think that Hooker would knowingly and consciously sell her one-half interest in the farmland less the amount of the entire debt when she was only obligated to pay one-half of it. A mistake to the time of $230,000 bestows an “unconscionable advantage” upon Roten-berry.

¶ 19. There is no evidence that Hooker was negligent. She contacted Rotenberry as soon as she realized he had seized upon an obvious error. No intervening rights have accrued, no escrow was paid or accepted and the parties never changed the positions they held before Hooker’s offer. The chancellor recognized the fundamental injustice of holding Hooker to such an obligation. As such, her findings were not manifestly erroneous.

CONCLUSION

¶ 20. Although the chancellor erred in allowing extrinsic evidence to determine that the parties did not agree to the amount to be deducted from the price in the agreement, we find that the chancellor did not abuse her discretion in finding that unilateral mistake entitled Hooker to rescind the contract. The chancellor’s judgment is affirmed.

¶ 21. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., EASLEY, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. COBB AND DIAZ, JJ., NOT PARTICIPATING.

McRAE, Presiding Justice,

Dissenting.

¶22. The majority erroneously finds that Clinton Grice Rotenberry, Jr. (“Clint”) is not entitled to specific performance of an agreement between himself and his sister Scottye R. Hooker (“Scottye”), wherein Scottye agreed to sale Clint her one half of the interest in certain farmland which had been held in trust for their benefit and distributed upon the death of the last remaining income beneficiary. The facts and applicable law on this subject support a finding that a valid agreement between Scottye and Clint existed for the sale of the farm interest and specific performance of this agreement is the equitable and appropriate remedy. For these reasons, I dissent.

¶23. In order to fully understand the agreements between Scottye and Clint concerning the sale of the farm interest; the following facts must be recited:

(1) Patrick H. Johnson (“Pete”), as attorney for Scottye, communicated an offer to sell her interest in the farmland to Clint’s attorney. The letter specifically stated:
“Earlier today I spoke with Scottye and she authorized me to offer to sell to Clint her undivided one-half interest in the 3,262 acres of the Panola and Tallahatchie County farm land for $1,062,500 less the balance of the debt due Met Life.” (emphasis added).
The offer made “time of the essence” and allowed only one day for acceptance.
(2) Thereafter, Clint authorized his attorney to accept the offer. His offer was communicated by letter transmitted by facsimile. The letter specifically stated:
I am authorized by Clint to accept and do hereby accept the offer of Scottye Hooker to sell to Clint her undivided one-half interest in the 3,262 acres of the Panola and Tallahatchie County farm land for $1,062,500 less the balance of the debt due Met Life.
(emphasis added).
(3) Pressured by the necessity to execute a lease upon the farm land; Clint, through his attorney, sent a letter to Scottye’s counsel stating that he was willing to place $100,000 in escrow pending the completion of the sale, if Scottye would sign a document authorizing Clint to enter into a farm lease pending the closing. The farm lease from the proceeding year had expired and Clint was attempting to secure a new farm lease to ensure the land would continue to be active and income producing.
(4) Clint, through his attorney, sent another letter to Scottye’s counsel communicated he was immediately ready to tender the sum of $603,500.00 ($1,062,500.00 less the $459,000.00 balance due on the Met Life debt) to finalize the transaction.
(5) This letter brought an immediate response from Pete, Scottye’s attorney. Pete stated:
It was may client’s intent on December 3, 1998, as it has been over the last several months of negotiations, to establish a price for her interest in the farmland and to proceed from there with negotiating the remainder of the transaction once the offer was accepted ... The facts and pattern of conduct state a very clear and convincing case that this sale was and continued up to this point to be in the process of negotiation and had never been finalized ... Your client’s December 9, 1998 offer to purchase Scottye’s one half undivided interest less the total on the entire price of property rather than the debt attributable to her one half interest flies in the face of equity and is totally unacceptable and is hereby rejected.
(6) Clint’s attorney responded stating that:
You attempt to characterize my earlier letter of December 9, 1998, as a new offer but it obviously is not. It is merely a letter tendering full payment of the purchase price which had been agreed to in prior written communications between us which were authorized and approved by our clients ... [T]he original offer by your client was not for $1,062,500 less one half of the debt due to Met Life but was for the amount ‘less the balance of the debt due Met Life’ This offer has been made by your client and accepted by mine. It only remains to be fulfilled by both of our clients and, as I have informed you, my client stands ready to perform.
(7) Following the collapse of all negotiations to finalize the sale, Clint filed a complaint seeking specific performance.
(8) A bench trial was held in which testimony was heard from only two witnesses, the attorneys who represented the parties at the time of the alleged offer and the alleged acceptance. The testimony revealed that Pete, Scot-tye’s attorney and her sole witness, had a vested interest in the outcome of the proceeding. Pete, along with his law partner, had acquired title to the hunting and fishing rights to Scot-tye’s half of the property. She owed him legal fees for past services and instead of paying for those services transferred title to the hunting and fishing rights to her half of the land. Additionally, evidence presented showed that an appraisal of the property had determined the entire 3, 262 acres to be worth $2,031,000.
(9) Ultimately, the Chancellor entered a Final Order denying Clint’s request for specific performance and finding ambiguity and a unilateral mistake entitling Scottye to rescission of the contract.

¶24. Under the applicable rules of contract construction, the doctrine of unilateral mistake, and the law regarding specific performance, a binding agreement between Scottye and Clint existed for which specific performance is an appropriate and equitable remedy.

I. UNDER THE APPLICABLE RULES OF CONTRACT LAW, THE CONTRACT IS UNAMBIGUOUS, PRECLUDING THE ADMISSION OF PAROL EVIDENCE AND ENTITLING CLINTON G. ROTENBERRY, JR. TO SPECIFIC PERFORMANCE.

¶ 25. “A valid contract must include the following essential elements: (1) two or more contracting parties, (2) consideration, (3) an agreement that is sufficiently definite, (4) parties with legal capacity to make a contract, (5) mutual assent, and (6) no legal prohibition precluding contract formation.” Lanier v. State, 635 So.2d 813, 826 (Miss.1994); Hunt v. Coker, 741 So.2d 1011, 1015 (Miss.Ct.App.1999). “It is a well-established rule that to make a contract by correspondence ..'. one must make a proposition and the other accept the same as made; in other words, the minds of the parties must meet upon a definitive proposition and its acceptance as made.” Hollister v. Frellsen, 148 Miss. 568, 114 So. 385, 386 (1927). A contract becomes binding and enforceable upon the acceptance of the offer. Edwards v. Wurster Oil Co., 688 So.2d 772, 775 (Miss.1997) (citing Sweet Home Water & Sewer Ass’n v. Lexington Estates, Ltd. 613 So.2d 864, 871 (Miss.1993); Houston Dairy Inc. v. John Hancock Mut. Life Ins. Co., 643 F.2d 1185, 1186 (5th Cir.1981); Williams v. Favret, 161 F.2d 822, 824 (5th Cir.1947)). A contract is sufficiently definite “if it contains matters which would enable the court under proper rules of construction to ascertain its terms.” Leach v. Tingle, 586 So.2d 799, 802 (Miss.1991); Hunt, 741 So.2d at 1014.

¶26. Here, it is clear that a contract formation did occur. Scottye offered and Clint accepted. His acceptance cited her offer word for word. The offer and acceptance included all the essential elements to a contract. There were two parties, Scot-tye and Clint. Consideration of “$1,062,-500 less the balance of the Met Life debt” was stated in both the offer and acceptance. The agreement stated the land to be sold, the purchase price, the parties, and even made “time of the essence.” Both Scottye and Clint have legal capacity to contract. They mutually assented to the offer. There are no legal prohibitions precluding the land sale contract.

¶27. Scottye argues, and the majority finds, that there was no meeting of the minds “since she didn’t mean what was written.” Such a finding is without merit. Scottye was careful in her land sale offer. She even hired an attorney to make the offer and complete the transaction. Her attorney even testified that Scottye is the one who set the price. He also acknowledged that the hunting and fishing rights he acquired from Scottye were worth more than the legal bills owed to him. Further, he testified that Scottye required no appraisal or expert advice before she agreed to convey him the hunting and fishing rights.

¶ 28. Also, the majority holds that the chancellor correctly found that the contract was ambiguous. The Court’s analysis when confronted with the interpretation of a contract is three tiered. “First, the court will attempt to ascertain intent by examining the language contained within the ‘four corners’ of the instrument in dispute.” Pursue Energy Corp. v. Perkins, 558 So.2d 349, 352 (Miss.1990) (citing Pfisterer v. Noble, 320 So.2d 383, 384 (Miss.1975)). See also Thornhill v. System Fuels, Inc., 523 So.2d 983, 998 (Miss.1988) (holding that it is the duty of a court to construe an instrument as written). Second, “[i]f examination solely of the language within the instrument’s four corners does not yield a clear understanding of the parties’ intent, the court will [implement] ... applicable ‘canons’ of construction.” Pursue Energy Corp., 558 So.2d at 352 citing Clark v. Carter, 351 So.2d 1333, 1334 & 1336 (Miss.1977). See also St. Regis Pulp & Paper Co. v. Floyd, 238 So.2d 740, 744 (Miss.1970) (holding the court should give great weight to the writing in the instrument when determining intent). Third, “if intent remains unascertainable (i.e., the instrument is still considered ambiguous), then the court may resort to [the] ... consideration of extrinsic or parol evidence.” Pursue Energy Corp., 558 So.2d at 353.

A. FOUR CORNERS OF THE INSTRUMENT

¶ 29. The goal of the court is to give effect to the intention of the parties. “The general rule is the intention of the parties must be drawn from the words of the whole contract, and if, viewing the language used, it is clear and explicit, then the court must give effect to this contract unless it contravenes public policy.” Jones v. Mississippi Farms Co., 116 Miss. 295, 76 So. 880, 884 (1917). “One should look to the ‘four corners’ of the contract whenever possible to determine how to interpret it.” Warwick v. Gautier Util. Dist., 738 So.2d 212, 214 (Miss.1999) (citing McKee v. McKee, 568 So.2d 262, 266 (Miss.1990)). “ ‘Therefore, when interpreting a contract, the court’s concern is not nearly so much with what the parties may have intended but with what they said, since the words employed are by far the best resource for ascertaining the intent and assigning meaning with fairness and accuracy.’ ” Id. (quoting Simmons v. Bank of Miss., 593 So.2d 40, 42-43 (Miss.1992)). Contracts must be interpreted by objective, not subjective standards, therefore “[cjourts must ascertain the meaning of the language actually used, and not ‘some possible but unexpressed intent of the parties.’ ” IP Timberlands Operating Co. v. Denmiss Corp., 726 So.2d 96, 105 (Miss.1998) (quoting Cherry v. Anthony, Gibbs, Sage, 501 So.2d 416, 416 (Miss.1987)). The parties disagreement over the meaning of a word of provision, alone, does not render an instrument ambiguous. IP Timberlands Operating Co., Ltd., 726 So.2d at 105 (citing Whittington v. Whittington, 608 So.2d 1274, 1278 (Miss.1992)).

¶ 30. When interpreting the written language of a contract the court should apply “ ‘correct English definition^] and language usage.’ ” Pursue Energy Corp., 558 So.2d at 352 (quoting Thornhill, 523 So.2d at 1007 (Robertson, J., concurring in denial of rehearing)) See also Knox v. Shell Western E & P, Inc., 531 So.2d 1181, 1189 (Miss.1988) (Robertson, J., concurring). “In other words, an instrument should be construed in a manner ‘which makes sense to an intelligent layman familiar only with the basics of English language.’ ” Id. (holding a sentence should not be given an artificial ‘diagramed’ meaning when its idea is reasonably clear’) (citing Henderson v. State, 445 So.2d 1364, 1366-68 (Miss.1984)).

¶ 31. Applying these contract principles here leads to the conclusion that the contract between Clint and Scottye is unambiguous. The only phrase suggested by Scottye and the chancellor to create ambiguity is “less the balance due on the Met Life debt.” There is nothing ambiguous about this phrase. Scottye argues that “balance” as used means one half of the balance due to Met Life. As was stated earlier “[cjourts must ascertain the meaning of the language actually used, and not ‘some possible but unexpressed intent of the parties.’ ” IP Timberlands Operating Co., 726 So.2d at 105 (quoting Cherry, 501 So.2d at 416). Her present intent may have been for “balance” to mean one half of the balance due to Met Life, but that is not what her offer stated. Her offer stated: “$1,062,500 less the balance due to Met Life.” The courts are “concerned with what contracting parties have said to each, not some secret thought of one [that was] not communicated to the other.” Quoting Miss. State Highway Comm’n v. Patterson Enters., Ltd., 627 So.2d 261, 263 (Miss.1993); Palmere v. Curtis, 789 So.2d 126, 131 (Miss.Ct.App.2001).

¶ 32. “Balance” is defined to include “the remainder or rest;” “equality between the totals of the two sides of an account;” “the difference between the debit total and the credit total of an account;” and “unpaid difference represented by the excess of debits over credits.” Random House Webster’s Unabridged Dictionary 157 (2d ed.1998). Under these definition, “balance” does not mean what Scottye is asserting.

¶ 33. The Court of Appeals has interpreted the meaning of “may” in reference to a temporary loan requirement to substitute for the equity in the buyer’s home that was otherwise necessary for the sale to occur. Langston v. Taylor, 766 So.2d 66, 67 (Miss.Ct.App.2000). There the court held that “[a]ny ambiguity was resolved in favor of the natural meaning of the use of ‘may.’ ” Id. Therefore, the court held that the purchasers did not breach their purchase agreement by failing to seek the bridge loan. Id. at 66. This is similar to the present case. The homeowner in Langston meant for “may” to include an obligation for the purchasers to secure a bridge loan, but the court refused to infer that meaning. Here Scottye asks this Court to infer that “balance” means one half of the balance due Met Life. If she intended that “balance” have that meaning, she should have included that wording in her offer.

¶ 34. Even applying the legal definition of balance, there can be no reconciliation with what Scottye claims. “Balance” is defined as “[t]o compute the difference between the debits and credits; [t]o equalize in number, force, or effect; or to bring into proportion; [and][t]o measure competing interests and offset them appropriately.” Black’s Law Dictionary 111 (7th ed.2000). Once Clint unequivocally accepted Scottye’s offer, the contract was formed and the terms were in place. There is nothing ambiguous about the word “balance.” Scottye just made a mistake in the wording of her offer; but the wording itself was not ambiguous. This Court has stated that “equity will not act to rescind a contract where the mistake was induced by the negligence of the party seeking rescission.” Turner v. Terry, 799 So.2d 25, 36 (Miss.2001).

¶ 35. Under the four corners rule, there is no ambiguity, and the contract is clear. “When an instrument’s substance is determined to be clear and unambiguous, the parties’ intent must be effectuated.” Pursue Energy Corp., 558 So.2d at 352 (citing Pfisterer, 320 So.2d at 384 (holding that an instrument that is “clear, definite, explicit, harmonious in all its provisions, and is free from ambiguity” must be “given effect.”)). Since no ambiguity exists, the contract should be enforced.

B. CANONS OF CONSTRUCTION

¶ 36. Even assuming an ambiguity in the contract exists, applying the applicable canons of construction still leads to the conclusion that the contract must be enforced. “Application of ‘canons’ of construction may provide a court with an objective inference of the parties intent.” Pursue Energy Corp., 558 So.2d at 353. One such canon is stated as “uncertainties should be resolved against the party who prepared the instrument.” Id. at 352 (citing Clark, 351 So.2d at 1334-35). “[I]n a case where language of an otherwise enforceable contract is subject to more than one fair reading, we will give that language the reading most favorable to the non-drafting party.” Theobald v. Nosser, 752 So.2d 1036, 1041 (Miss.1999) (citing Leach, 586 So.2d at 801-02).

¶37. Scottye’s attorney prepared the offer. Clint accepted the offer and used her exact wording in his acceptance letter. Scottye’s own attorney testified that she set out the asking price, and he merely condensed it to writing. Any ambiguity as to the meaning of “balance” should be resolved in Clint’s favor since he was the non-drafting party. Applying these principles, the contract should be enforced as written.

C. PAROL EVIDENCE

¶ 38. The chancellor allowed the testimony of the attorneys who prepared the offer and accepted the offer. This testimony is parol evidence. It is a well-settled principle of contract law that parol evidence should never be admitted where the terms of a contract are clear and unambiguous. Turner, 799 So.2d at 32 (citing Estate of Parker v. Dorchak, 673 So.2d 1379, 1381 (Miss.1996)). One of the fundamental principles of contract law is that parol evidence will not be received to vary or alter the terms of a written agreement that is intended to express the entire agreement of the parties on the subject matter at hand. Grenada Auto Co. v. Waldrop, 188 Miss. 468, 471, 195 So. 491, 492 (1940); Perrault v. White Sewing Mach. Co., 157 Miss. 167, 176, 127 So. 271, 274 (1930); Edrington v. Stephens, 148 Miss. 583, 586, 114 So. 387, 389 (1927); Kerr v. Calvit, 1 Miss. 115, 118 (Miss.1822); Housing Auth., City of Laurel v. Gatlin, 738 So.2d 249, 251 (Miss.Ct.App.1998). “ ‘Parol evidence as to surrounding circumstances and intent may be brought in where the contract is ambiguous, but where ... the contract [is] found to be unambiguous it has no place’ ” Heritage Cablevision v. New Albany Elec. Power System, 646 So.2d 1305, 1313 (Miss.1994) (quoting Cherry, 501 So.2d at 419). Additionally, parol evidence has no place until after the court has looked to the four corners of the contract and the applied the canons of contract construction. Pursue Energy Corp., 558 So.2d at 352; Martin v. Fly Timber Co., 825 So.2d 691, 695 (Miss.Ct.App.2002). In Frierson v. Delta Outdoor, Inc., 794 So.2d 220, 224 (Miss.2001) and Cooper v. Crabb, 587 So.2d 236, 241 (Miss.1991), this Court held that the rule against the admissibility of parol evidence when a contract is unambiguous is “not merely a rule of evidence, but is one of substantive law.”

¶ 39. Here the chancellor’s decision was based on parol evidence. Since the contract was unambiguous, parol evidence should not have been admitted. Furthermore, parol evidence was not used here to explain the terms of the contract but to vary the terms of the contract. There is no plausible way that the testimony of Scottye’s attorney can be seen as an attempt to explain “balance.” It would be absurd to assert that “balance” could mean “one half the balance.” If that was her intent she should have included that wording in her offer. Scottye’s attempts to construe “balance” to mean “one half the balance” are an attempt to vary the terms of the contract through the use of parol evidence. In any event, parol evidence should not have been admitted.

¶ 40. The right to make and enforce a contract is fundamental in our society.

It is fundamental that the right to make contracts pertaining to business is one of the rights guaranteed by the law of the land, and especially the fourteenth amendment to the Constitution of the United States. Unless the parties dealing with the subject-matter by their conduct modify or change the contract originally made, or so act in reference to it as to make it inconsistent for a party to claim or rely upon the contract contrary to its agreement and stipulations, it must be enforced as written.

Jones v. Mississippi Farms. Co., 76 So. at 883. This Court has stated that “ ‘[t]he right to contract is fundamental to our jurisprudence and absent mutual mistake, fraud and/or illegality, the courts do not have the authority to modify, add to, or subtract from the terms of the contract validly executed between two parties.’ ” Wallace v. United Mississippi Bank, 726 So.2d 578, 584 (Miss.1998) (quoting First Nat’l Bank of Vicksburg v. Caruthers, 443 So.2d 861, 864 (Miss.1983)). “ ‘Contracts are solemn obligations and it is not the function of the courts to make contracts for parties, but rather to give effect to them as written.’ ” Miller v. Mississippi Stone Co., 379 So.2d 919 (Miss.1980) (quoting Roberts v. Corum, 236 Miss. 809, 815, 112 So.2d 550, 556 (Miss.1959)).

II. THE FACTS DO NOT SUPPORT A FINDING OF UNILATERAL MISTAKE ENTITLING SCOT-TYE R. HOOKER TO RESCISSION.

¶41. The majority erroneously holds that the chancellor correctly found that Scottye is entitled to rescission of the contract due to unilateral mistake. “Mississippi courts require that unilateral mistake, like mutual mistake, be proven beyond a reasonable doubt.” Crosby-Mississippi Resources, Ltd. v. Prosper Energy Corp., 974 F.2d 612, 616 (5th Cir.1992) (citing Terre Haute Cooperage v. Branscome, 203 Miss. 493, 504, 35 So.2d 537, 540 (1948) (holding that a claim of unilateral mistake must be proven beyond a reasonable doubt)). It is obvious from a review of the record, that there is insufficient evidence to prove “beyond a reasonable doubt” that a unilateral mistake was committed.

¶ 42. This Court is not in the habit of granting rescission of a contract due to unilateral mistake. “ ‘But where the mistake is of so fundamental a character, that the minds of the parties have never, in fact, met; or where an unconscionable advantage has been gained, by mere mistake or misapprehension; and there was no gross negligence on the part of the plaintiff, either in falling into the error, or in not sooner claiming redress; and no intervening rights have accrued; and the parties may still be placed in statu quo; equity will interfere, in its discretion, in order to prevent intolerable injustice.’ ” Miss. State Bldg. Comm’n v. Becknell, 329 So.2d 57, 60-61 (Miss.1976) (quoting State Highway Comm’n v. State Construction Co., 203 Or. 414, 435, 280 P.2d 370, 380 (1955)). The test is more understandable if laid out as factors. In order to obtain rescission due to unilateral mistake, a party must show either

(1) The mistake is so fundamental that the parties minds never met plus
(a) there was no gross negligence on the part of the plaintiff, either in falling into the error, or in not sooner claiming redress, and
(b) no intervening rights have accrued, and
(c)the parties may still be placed in the statu quo.
(2) That an unconscionable advantage has been gained, by mere mistake or misapprehension plus
(a) there was no gross negligence on the part of the plaintiff, either in falling into the error, or in not sooner claiming redress, and
(b) no intervening rights have accrued, and
(c) the parties may still be placed in the statu quo.

Id.

¶ 43. Under the first test, Scottye is not entitled to rescission based on unilateral mistake. As discussed above, there was an offer and acceptance. The mere fact that Scottye now retracts here the stated price and wishes to change it, does not mean that there was no “meeting of the minds”. Likewise, even if Scottye intended “balance” to mean one half of the balance of the Met Life debt, she should have included language to that effect in her offer. This amounts to inexcusable negligence.

¶ 44. Under the second test, Scottye is not entitled to rescission based on unilateral mistake. There was no unconscionable advantage gained by the mistake or misapprehension. The only conceivable argument for unconscionable advantage is that Clint is getting land at below appraisal due to Scottye setting her selling price below market value. But this Court has held that inadequacy of consideration alone, will not entitle a party to rescission on the basis of unconscionability. Johnson v. Brewer, 427 So.2d 118, 125 (Miss.1983) (citing Foster v. Pugh, 20 Miss. 416, 12 S & M 416, 422 (1849)).

¶ 45. In Johnson, the court found that inadequate consideration coupled with fraud entitled the plaintiffs to rescission of a mineral lease. 427 So.2d 118. The Court found that fraud or oppression, when coupled with inadequate consideration renders a contract unconscionable. Id. at 125. Furthermore, this Court has held that “there may be cases where relief may be proper if ‘enforcement of the contract would be unconscionable,’ yet only where the party making the mistake ‘was in the exercise of reasonable diligence.’ ” Hunt v. Davis, 208 Miss. 710, 45 So.2d 350, 352 (1950) (quoting Butterfield Lumber Co. v. Guy, 92 Miss. 361, 364, 46 So. 78, 80 (1908)). “A mere improvident contract supplies no basis.” Id. Here we have an “improvident contract” with no fraud or oppression.

¶ 46. Furthermore, “ ‘[t]he law will not weigh the quantum of consideration in a contract, and so long as it is something of real value in the eyes of the law it is sufficient.’ ” Matter of Johnson’s Will, 351 So.2d 1339, 1341 (Miss.1977) (quoting Ogle v. Durley, 223 Miss. 32, 43, 77 So.2d 688, 693 (1955)). Scottye set her purchase price with no appraisal and no help from a qualified real estate expert. She chose the amount of consideration. This Court should not allow her to retract her offer because she now feels the purchase price is inadequate. It is worth noting that her attorney testified that Scottye did not require an appraisal or expert advice before conveying her fishing and hunting interests. Additionally, he acknowledged that the hunting and fishing rights were worth more than the legal bills the trade was meant to compensate him for.

¶ 47. The majority relies on Becknell, for the proposition that a unilateral mistake occurred. It is argued that Scottye’s mistake was an “honest mistake” as in Becknell deserving of rescission. In Becknell a construction company submitted an erroneous bid to the State Building Commission. 329 So.2d at 57. This Court found that the bid was for less than the cost necessary for construction and was due to an honest, yet negligent, mistake of the construction company. Id. at 61. An important deciding factor for this Court was that of public policy with respect to bids for state and/or government construction projects. Id. at 62. It would not be in the public’s best interest to drive a construction company out of business by enforcing an erroneous bid for the construction of a government project. Here, we are dealing with two individuals engaged in a private and arms length transaction. There is no public interest to be protected as in Becknell. The contracting parties should be free to reach whatever deal they see fit and have full assurance that their mutual obligations will be enforced.

¶ 48. Scottye made a bad deal but that fact alone does not make her deserving of rescission due to unilateral mistake. “ ‘[T]his court has been liberal in reviewing transactions where one party might have the advantage over another party in experience, knowledge, and wisdom; but in the absence of fraud, deceit, or fiduciary relations of some kind, the court cannot relieve a person from the consequences of his acts merely because he has not acted prudently or diligently about his contracts or other matters.’ ” Johnson, 427 So.2d at 125 (quoting Fornea v. Goodyear Yellow Pine Co., 181 Miss. 50, 65-66, 178 So. 914, 918 (1938)).

¶ 49. The majority has equity step forward and give Scottye the benefit of voiding her “bad deal.” While equity is appropriate relief to prevent “inequitable and fundamentally unjust” outcomes, it does not follow that this Court or any court of this State should use equity as a “re-do” for those who decide after the fact that they are not satisfied with the contractual deal they have made.

III. UNDER APPLICABLE PRINCIPLES OF CONTRACT LAW, THE CONTRACT IS CLEAR AND DEFINITE, THEREFORE SUPPORTING A CLAIM FOR SPECIFIC PERFORMANCE.

¶ 50. Lastly, the majority erroneously holds that the chancellor correctly found that the contract was incapable of specific performance.

¶ 51. “Specific performance has traditionally been regarded as a remedy for breach of contract that is not a matter of right but of sound judicial discretion.” Frierson, 794 So.2d at 225 (citing Osborne v. Bullins, 549 So.2d 1337, 1339 (Miss.1989)). “[Wjhere a contracting party can feasibly be given what he bargained for, specific performance is the preferred remedy.” (Id.) This Court has stated the familiar standard for specific performance as:

Before a court of equity will enforce a specific contract for the sale of lands, the contract must be specific and distinct in its terms and must show with certainty that the minds of the parties have met and mutually agreed upon all the details. There must be an offer upon the one hand an unqualified acceptance of this offer upon the other; if any of these requisites be lacking, specific performance will not be declared.

Fowler v. Nunnery, 126 Miss. 510, 89 So. 156, 158 (1921) (quoting Welsh v. Williams, 85 Miss. 301, 302, 37 So. 561, 561 (1904)). “A contract is sufficiently definite if it contains matter which would enable the court under proper rules of construction to ascertain its terms, including consideration of the general circumstances of the parties and -if necessary relevant extrinsic evidence.” Estate of Smith v. Samuels, 822 So.2d 366, 369-70 (Miss.Ct.App.2002). “The purchase price is an essential term that must be stated with specificity or the contract fails.” Leach, 586 So.2d at 803; Hunt, 741 So.2d at 1014. “[A]n agreement should not be frustrated where it is possible to reach a reasonable and fair result.” Busching v. Griffin, 542 So.2d 860, 862 (Miss.1989) (citing Jones v. McGahey, 187 So.2d 579, 584 (Miss.1966); Estate of Smith, 822 So.2d at 370).

¶ 52.- Clint accepted Scottye’s offer verbatim. and under the specific provisions provided for in her offer. Even the chancellor recognized this. There was no counter-offer or mis-description. Here, we are not dealing with inconsistent instruments. The offer and the acceptance are identical. Even the chancellor found that there was a “meeting of the minds” with regard to the offer and acceptance.

¶ 53. On this subject, it is worth looking at Estate of Smith and Busching. Estate of Smith, dealt with a landowner’s estate who sought rescission of a land sale option contract after having second thoughts about the purchase price. 822 So.2d at 370. The court reasoned that allowing such rescission would be inequitable. Id. Likewise, Busching dealt with a landowner who repudiated a land contract after discovering that the price fell below market value. 542 So.2d at 860. This Court opined that if it let the landowner off the hook The “integrity and enforceability of written contracts would be greatly doubted.” Id. at 866.

¶ 54. The land involved in this sale is very'unique to Clint. It has been in his family for years. He intended to keep the land in his family. Scottye, on the other hand, has already disposed of some of the lands rights by selling the hunting and fishing rights to her attorneys. She has exhibited no sentimental family connection to the land. After all, she traded her hunting and fishing rights to pay her legal bills.

¶ 55. The majority places great weight on the fact that if this contract is enforced, Scottye will lose $230,000, because that is Clint’s one half (jé) of the debt which she would be paying. This is of no consequence. In Taylor v. Firestone Tire & Rubber Co., 519 So.2d 436 (Miss.1988), this Court enforced a settlement agreement whereby the plaintiff only received $2,000 for a personal injury claim, despite the fact that the plaintiff had incurred $6,500 in medical expenses. Id. at 437-38. Scottye made a bad deal or her attorney failed to clarify the offer. In either event, neither mistake entitles her to rescission. “[T]he mere fact that the defendant made a bad trade or bargain is not sufficient to defeat an obligation of specific performance.” Clinton Serv. Co. v. Thornton, 233 Miss. 1, 11, 100 So.2d 863, 867 (1958).

¶ 56. The Chancellor erred in granting rescission of the agreement between Clint and Scottye. The Chancellor’s judgment should be remanded for entry of a judgment granting specific performance of the agreement.

¶ 57. For these reasons, I dissent.

      . Contrary to Presiding Justice McRae’s dissent, we find the agreement clear and unambiguous.

      . This holding is consistent with this Court’s recent decision regarding the admission of parol evidence in In the Matter of the Estate of Fitzner v. Fitzner, 2001-CA-01898-SCT, - So.2d -, 2003 WL 152377 (2003).


source: Caselaw Access Project

author: THOMAS, J.,

license: Public Domain

text:
    Rodrequiz W. HARGETT, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00545-COA.
    Court of Appeals of Mississippi.
    July 29, 2003.
    Rehearing Denied Oct. 7, 2003.
    Certiorari Denied Jan. 22, 2004.
    Rodrequiz W. Hargett (Pro Se), for appellant.
    Office of the Attorney General, By: W. Glenn Watts, attorney for appellee.
    Before KING, P.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the court.

¶ 1. Rodrequiz W. Hargett, pro se, appeals an order of the Circuit Court of Harrison County, Mississippi denying his petition for post-conviction relief. Aggrieved, Hargett asserts the following issues on appeal:

I. THE CIRCUIT COURT ERRED IN FAILING TO ADVISE APPELLANT SUFFICIENTLY OF THE MANDATORY SENTENCE REQUIRED BY STATUTE.

II. THE CIRCUIT COURT ERRED IN DENYING APPELLANT’S MOTION TO VACATE GUILTY PLEA BECAUSE IT WAS NOT KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY ENTERED INTO FOR FAILURE TO FULLY AND ADEQUATELY ADVISE OF NATURE AND CONSEQUENCES OF THE GUILTY PLEA.

III. THE CIRCUIT COURT ERRED IN DENYING APPELLANT’S MOTION TO VACATE GUILTY PLEA WHERE APPELLANT HAS BEEN DEPRIVED OF LIBERTY WITHOUT FULL DUE PROCESS BY PROSECUTING OFFICERS’ USE OF PERJURED TESTIMONY AND STATES FAILURE TO PROVIDE CORRECTIVE JUDICIAL PROCESS.

IV. THE CIRCUIT COURT ERRED IN DENYING APPELLANT’S MOTION TO VACATE GUILTY PLEA BECAUSE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL FOR PROVIDING APPELLANT WITH CLEARLY ERRONEOUS INFORMATION.

Finding no error, we affirm.

PROCEDURAL HISTORY AND FACTS

¶ 2. Rodrequiz W. Hargett pled guilty to transfer of a controlled substance as a habitual offender with the advice and assistance of counsel on May 9, 2000. The trial court sentenced Hargett to ten years in the custody of the Mississippi Department of Corrections. Hargett filed a motion for post-conviction relief on March 1, 2001, which the trial court summarily denied. Hargett then perfected an appeal to this Court.

ANALYSIS

¶ 3. In his original motion for post-con-vietion relief, Hargett complained that his guilty plea was not knowingly, intelligently, freely and voluntarily given and that he did not receive effective assistance of counsel. Hargett also now argues on appeal that he was given an illegally lenient sentence.

I. VOLUNTARINESS OF GUILTY PLEA

¶ 4. Hargett asserts that his guilty plea was not knowingly, intelligently, freely, and voluntarily given because he allegedly was not informed of the mandatory minimum sentence that he could receive for his guilty plea. The standard of review pertaining to voluntariness of guilty pleas is well settled: “this Court will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous.” Weatherspoon v. State, 736 So.2d 419, 421 (¶ 5) (Miss.Ct.App.1999). The burden of proving that a guilty plea was involuntary is on the defendant and must be proven by a preponderance of the evidence. Id. at 422(¶ 8) (superceded by Miss.Code Ann. §§ 99-39-23 (Rev.2000)); Terry v. State, 839 So.2d 543, 545(¶ 7) (Miss.Ct.App.2002). A plea is considered “voluntary and intelligent” if the defendant is advised about the nature of the charge against him and the consequences of the entry of the plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992).

¶ 5. Hargett signed a sworn statement which acknowledged that he was pleading guilty as a habitual offender and that acknowledged the maximum and minimum sentences as well as the maximum and minimum fine he could receive. Hargett’s claims in his motion for post-conviction relief were unsupported by affidavits or any other evidence, and they contradict his sworn statements given before the court in his guilty plea. “Great weight is given to statements made under oath and in open court during sentencing.” Gable v. State, 748 So.2d 703, 706(¶ 11) (Miss.1999) (quoting Young v. State, 731 So.2d 1120, 1123(¶ 12) (Miss.1994)). This issue is without merit.

II. EFFECTIVENESS OF COUNSEL

¶ 6. Hargett argues that he was denied effective assistance of counsel because he did not actually commit the offense to which he pled guilty, perjured testimony was used against him, and he was not properly advised that he was pleading guilty as a habitual offender. Hargett provided no affidavits or proposed testimony in support of his argument, alleging that his witnesses could not be located or were in prison. According to Campbell v. State, 611 So.2d 209, 210 (Miss.1992), “such mere allegation is insufficient to require the trial court to grant an evidentiary hearing.”

¶ 7. In order to be successful in a claim of ineffective assistance of counsel, the defendant is required to make both a showing of deficient performance and that, but for the deficient performance, a different result would likely have resulted. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Donnelly v. State, 841 So.2d 207, 211(¶ 8) (Miss.Ct.App.2003). In order for Hargett to prove the ineffective assistance of counsel claim, under Miss.Code Ann. §§ 99-39-11(2) (Rev.2000), the allegation must be alleged with specificity. “[H]e must specifically allege facts showing that effective assistance of counsel was not in fact rendered, and he must allege with specificity the fact that but for such purported actions by ineffective counsel, the results of the trial court decision would have been different.” Smith v. State, 434 So.2d 212, 219 (Miss.1983). See also Miss.Code Ann. §§ 99 — 39—9(1)(c) (Rev.2000); Terry v. State, 839 So.2d 543, 546(¶ 14) (Miss.Ct.App.2002). “On review, we look with deference upon counsel’s performance, considering the totality of the circumstances to determine whether it was both deficient and prejudicial.” Conner v. State, 684 So.2d 608, 610 (Miss.1996).

¶ 8. “In a case involving post-conviction relief, the Mississippi Supreme Court has held, ‘that where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.’ ” Lindsay v. State, 720 So.2d 182, 184(¶ 6) (Miss.1998). We hold that Hargett has failed to meet his statutory burden of proof required to establish a prima facie showing. Hargett is required to show that counsel’s performance was deficient and that the defendant was prejudiced by counsel’s mistakes. Strickland, 466 U.S. at 686-87, 104 S.Ct. 2052. Having failed to do so, this issue is without merit.

III. LEGALITY OF SENTENCE

¶ 9. Hargett claims for the first time on appeal that the trial court imposed an illegal sentence when it ordered him to serve ten years in the custody of the Mississippi Department of Corrections without benefit of probation or parole pursuant to Section 99-19-81. He argues now that the trial court should have imposed the maximum sentence of thirty years without parole. In what can only be classified as a tongue in cheek argument, Hargett argues not that he be re-sentenced to the full maximum sentence but that his plea and sentence be totally vacated when considered in conjunction with his claims of ineffective assistance and voluntariness of guilty plea.

¶ 10. The State’s position is that since Hargett raised this issue for the first time on appeal in a supplemental brief that he is procedurally barred from complaining now. This argument is inviting but ignores the question of whether some fundamental right of Hargett’s has been implicated and violated in his receiving an illegal sentence, which argument transcends a procedural bar.

¶ 11. We are increasingly witnessing arguments like that advanced by Hargett in post-conviction cases. These cases can be loosely characterized into three categories: (1) a defendant is trying to set aside an old conviction used to enhance a present day sentence as a habitual offender, (2) a defendant with a prior felony record is given a total or partially suspended, sentence which is later revoked and the defendant now claims the sentence he is serving is illegal, and finally as to the case here, (3) a defendant pleads guilty as a habitual offender, receives a sentence less than the maximum and later, while serving that sentence, attempts to set the conviction and sentence aside because the judge was lenient.

¶ 12. McGleachie v. State, 800 So.2d 561 (Miss.Ct.App.2001), Chancellor v. State, 809 So.2d 700 (Miss.Ct.App.2001), Edwards v. State, 839 So.2d 578 (Miss.Ct.App.2003), and Graves v. State, 822 So.2d 1089 (Miss.Ct.App.2002) (cert. denied May 1, 2003) all involved the scenario of a defendant trying to set aside an old conviction used to enhance a sentence the defendant was then serving. In each case, the motion was filed after this three year time bar of the post-conviction relief statute. McGleachie, 800 So.2d at 562(¶ 2); Chancellor, 809 So.2d at 701(¶ 4); Edwards, 839 So.2d at 579(¶ 3); Graves, 822 So.2d at 1090(¶ 3). In each case, we explicitly held that the defendant was time barred from complaining at this point because no fundamental right had been implicated since the defendant was not prejudiced by receiving a harsher sentence but rather ben-efitted from a lighter sentence than that which the defendant should have received. McGleachie, 800 So.2d at 563(¶ 4); Chancellor, 809 So.2d at 701(¶ 8); Edwards, 839 So.2d at 580(¶ 7); Graves, 822 So.2d at 1091(¶ 8).

¶ 13. In Weaver v. State, 785 So.2d 1085 (Miss.Ct.App.2001), a defendant with a pri- or felony conviction was given an illegally suspended sentence which the State later attempted to revoke. We vacated the sentence and conviction in that case on the basis of Robinson v. State, 585 So.2d 757 (Miss.1991), and reasoned that the State’s attempt to revoke was based solely on the fact that Weaver should not have been given a suspended sentence rather than on some new violation of the suspension. However, as cogently stated by Judge Irving in Graves:

A literal reading of Weaver would permit results not intended by this Court. Therefore, it is appropriate that we clarify Weaver. Weaver should not be read as permitting a prior convicted felon to withdraw a guilty plea induced by a beneficial though illegal plea bargain if the convicted felon has enjoyed the benefits of the favorable illegal bargain. Weaver applies to situations in which a guilty plea was induced at least in part by a recommendation that some part of the sentence be suspended. If the State later seeks to rescind that suspension solely because the sentence was statutorily barred and not because of an alleged violation of the terms of the probation, then removing the suspension would also require that the defendant be allowed to withdraw his guilty plea. On the other hand, a defendant should not be allowed to reap the benefits of an illegal sentence, which is lighter than what the legal sentence would have been, and then turn around and attack the legality of the illegal, lighter sentence when it serves his interest to do so. Allowing such actions would reap havoc upon the criminal justice system in -this state. For example, all subsequent convictions and sentences of that defendant which are reliant upon the conviction concomitant with the illegal sentence would have to be set aside. This would result in a number of enhanced and habitual offender sentences being set aside for the very offender who had already enjoyed greater leniency than the law allows. Likewise, the State should not be allowed to engage in a plea bargain encompassing a recommendation for a sentence more lenient than what the law permits, reap the benefit of not having to go to trial and later seek to have the illegal, lighter sentence set aside while maintaining the validity of the attendant conviction. We can perceive no constitutional imperative or compelling state interest which would require or permit either scenario.

Graves, 822 So.2d at 1092(¶ 11).

¶ 14. Juxtaposed between our latest pronouncement in Graves and the case at bar is Robinson v. State, No.2000-CP-02087-COA (Miss.Ct.App. Feb.26, 2002). In our Robinson opinion, we held, as in McGleachie, Chancellor, Edwards, and Graves, that the defendant could not argue about a less than maximum habitual sentence he was presently serving. On certio-rari, our supreme court affirmed this Court on other grounds, finding from a review of later acquired document sheets that Robinson could receive less than a maximum sentence because the State had, in fact, dropped the habitual portion of his indictment as part of a plea bargain. Robinson, 836 So.2d 747, 750(¶ 10) (Miss.2002). As an apparent afterthought and without further discussion including the potential consequences of its comment, or discussion of McGleachie or Chancellor, that court in dicta stated that “[b]ut for the inclusion of the reference docket sheet of Monroe County which absolutely indicates the reduced non-habitual status of this plea of guilt and sentence, this Court could not affirm the Court of Appeals and trial court.” Id. at 749(¶ 6). Inexplicably, the supreme court went on to hold that Robinson could be sentenced to a twenty year suspended sentence as a non-habitual even though he had prior felony convictions. This ruling flies in the face of Goss v. State, 721 So.2d 144 (Miss.1998) (overruled on other grounds), which held that one could not receive a suspended sentence if the defendant had a prior felony conviction. Goss, 721 So.2d at 146(¶ 12). Justice Carlson correctly pointed this out in a concurring opinion in Robinson even though he took issue with Goss’s reasoning. Robinson, 836 So.2d at 752-53 (¶ 18). The dicta in Robinson can only be read to be an aberration in view of the fact that within less than four months after its rendition our supreme court denied certiorari on our decision in Graves.

¶ 15. We now turn to the case at bar. Hargett filed his post-conviction relief motion well within the three year statute of limitations. His argument below was that his plea was not knowingly, intelligently, freely and voluntarily given and that he did not receive effective assistance of counsel. We have already discussed and dismissed those arguments. For the first time on appeal Hargett argues also that his sentence was illegal. In view of our previous pronouncements and our discussion herein, we hold that Hargett is barred from raising this issue here, and for that matter, in the trial court had it been properly pled.

¶ 16. Ironically, defendants like Har-gett place themselves in a precarious position by advancing illegal sentence arguments such as this. Since the record in this case without doubt reveals that Har-gett knew that he was adjudicated a habitual offender, that he was explicitly advised that he could receive a thirty-year day for day sentence with a million dollar fine, and that his plea was otherwise freely and voluntarily given with adequate assistance of counsel. We could be disposed to simply remand this case for imposition of the full maximum sentence. Fortunately for Hargett, we have chosen another path. One cannot help but be reminded of that old adage to the effect that one should be careful of what they ask for, lest they receive it.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


author: IRVING, J.,

text:
    Tommy TURNER, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00836-COA.
    Court of Appeals of Mississippi.
    Aug. 5, 2003.
    Rehearing Denied Oct. 14, 2003.
    Certiorari Denied Jan. 22, 2004.

      Tommy Turner, Jr. (Pro Se), for appellant.
    Office of the Attorney General, by John R. Henry, for appellee.
    Before SOUTHWICK, P.J., LEE, IRVING and MYERS, JJ.
   IRVING, J.,

for the court.

¶ 1. Tommy Turner, Jr., in a pro se brief, challenges the denial of his motion for post-conviction relief by the Circuit Court of Lauderdale County. We find no error in the ruling of the trial court; therefore, we affirm.

FACTS

¶ 2. In 1999, a Lauderdale County grand jury indicted Turner for the felony of DUI manslaughter pursuant to section 63-11-30 of the Mississippi Code of 1972 as annotated and amended. Approximately two years later, Turner filed a petition in which he asked the Circuit Court of Lauderdale County to accept his plea of guilty to felony DUI manslaughter. The trial court accepted Turner’s plea of guilty, convicted him of DUI manslaughter, and sentenced him to twenty years in the custody of the Mississippi Department of Corrections, with twelve years suspended, and to five years of supervised probation.

¶ 3. Subsequently, Turner filed a petition for post-conviction relief in which he alleged that his plea of guilty was entered unintelligently, that he received ineffective assistance of counsel, that he was denied a speedy trial, that there was no factual basis to support the plea, that the indictment was defective, and that the trial court erred in accepting the plea because the court failed to make sufficient inquiry to determine whether Turner understood the nature of the charge against him.

¶ 4. In a very detailed order, the trial court found, after a perusal of the applicable records, that the factual claims made by Turner in his motion for post-conviction collateral relief were false and belied by the transcript of the plea hearing. Consequently, the trial court denied the requested relief without an evidentiary hearing.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 5. When reviewing a lower court’s decision to deny a petition for post-conviction relief, this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999) (citing Bank of Mississippi v. Southern Mem’l Park, Inc., 677 So.2d 186, 191 (Miss.1996)). However, where questions of law are raised, the applicable standard of review is de novo. Id.

¶ 6. In his appeal, Turner argues that his plea of guilty was involuntary and was brought about by the ineffective assistance of counsel. He lists what he describes as several omissions of counsel to support his assertion. Turner first proclaims that his plea of guilty was not knowingly and intelligently made because his counsel failed to advise him of his right to a speedy trial. He further contends that he was denied due process of law because his indictment was defective and because neither the trial court nor his attorney advised him of the elements of the charge and the effect of the guilty plea upon the various trial rights constitutionally bestowed upon him. Moreover, he proclaims that there was no factual basis to support his guilty plea. Therefore, Turner concludes that the trial court erred when it denied him post-conviction relief.

¶ 7. A guilty plea must be made voluntarily in order to satisfy the defendant’s constitutional rights. Taylor v. State, 682 So.2d 359, 362 (Miss.1996). “It is essential that an accused have knowledge of the critical elements of the charge against him, that he fully understands the charge, how it involves him, the effects of a guilty plea to the charge, and what might happen to him in the sentencing phase as a result of having entered the plea of guilty.” Reeder v. State, 783 So.2d 711, 717(¶ 20) (Miss.2001) (citing Smith v. State, 636 So.2d 1220, 1225 (Miss.1994)).

Denial of Speedy Trial

¶ 8. Turner alleges that he was denied due process when his counsel failed to inform him of his right to a speedy trial. He further asserts that no evidence exists to demonstrate he knowingly waived this right before pleading guilty. Turner points to the time span between the filing of his grand jury indictment on July 28, 1999, his conviction on April 3, 2001, and his sentencing on April 24, 2001, as evidence of his being denied a speedy trial. Because of this delay, Turner explains that he possessed a defense to the charge because the State failed to provide him with a speedy trial. Therefore, because his counsel did not inform him of this defense, Turner proclaims that he was prejudiced since he is now prohibited from asserting this defense. According to Turner, this foreclosure was proximately caused by his counsel’s ineffective assistance and constitutes a denial of due process.

¶ 9. We find no merit in Turner’s contention concerning his right to a speedy trial. First, the transcript of the guilty plea reveals that Turner was told that he had a right to “speedy public trial by a jury” and that by pleading guilty he waived that right. The transcript also reveals that the trial judge asked him if he wanted to waive that right, to which Turner answered in the affirmative. Second, as the trial court found, “regardless of the length of the delay between his indictment and sentencing, [Turner] entered a plea of guilty to the offense of DUI manslaughter, [and] a valid guilty plea waives the right to a speedy trial, whether that right is of constitutional or statutory origin.” Rowe v. State, 735 So.2d 399, 400(¶ 3) (Miss.1999).

Advisement of the Elements of the Charge, and Consequences of the Plea

¶ 10. As a part of his argument that his guilty plea was not voluntary, Turner states that neither the trial court nor his attorney advised him of the elements of the charge or the rights he was forfeiting by entering the guilty plea. Turner asserts that he should have been informed as to what the State had to prove against him concerning a DUI death charge.

¶ 11. The record is clear that Turner was aware of the charge to which he pleaded guilty, as well as its elements, and that he knew the effect of a guilty plea upon his constitutional rights. The following exchange occurred between Turner and the trial court at the plea hearing:

Q: Okay. DUI manslaughter is a felony crime that carries a minimum and maximum possible punishment of from 0 to 25 years imprisonment in the penitentiary and a fine of 0 up to $10, 000. Do you understand that?
A: Yes, sir.
Q: Mr. Kieronski filed this guilty plea document that I’m looking at. It’s called a petition to plead guilty. It was signed about a week ago. It has a signature right there of Tommy Turner, Jr. Is that your signature?
A: Yes, sir.
Q: Did you go over this guilty plea petition with your attorney before you signed it?
A: Yes, sir.
Q: Did you read this or did he read it to you?
A: Well, I read it and he read it to me.
Do you understand it okay? <©
Yes, sir. >
Q: Is the information that s in here truthful as far as you know?
A: Yes, sir.
Q: When you sign a document like this, it indicates to me that you want to plead guilty to this charge in accordance with a plea bargain. Is that what you want to do?
A: Yes, sir.

¶ 12. Subsequently to this exchange, the trial court spent some time informing Turner of the rights that he would be relinquishing as a result of his guilty plea. Specifically, the trial court explained his right to a speedy trial, his presumption of innocence if he decided to go to trial, his right to confront witnesses, his option to testify on his own behalf, his right to remain silent during proceedings, his right to have an attorney represent him, and his right to appeal if he were sentenced. When the trial court asked Turner whether he understood that he would waive these rights by pleading guilty, Turner answered in the affirmative. The trial court then asked, “Do you, in fact, want to waive all those rights and plead guilty in accordance with the plea bargain?” To this question, Turner answered, “Yes, sir.”

¶ 13. Moreover, in regard to Turner’s understanding of the elements of DUI manslaughter, the charge to which he was pleading, the trial court asked Turner, “Has he (Turner’s attorney) explained to you the elements of the crime DUI manslaughter as well as any possible defenses that you might have to that charge?” Turner answered, “Yes, sir.”

¶ 14. We therefore find no merit in Turner’s contention that he was not adequately informed.

Factual Basis for the Charge

¶ 15. Rule 8.04(A)(3) of the Uniform Rules of Circuit and County Court requires that in order for the trial court to accept a guilty plea, there must be a factual basis for the guilty plea. Turner alleges that the State failed to establish a factual basis for the charge to which he pleaded.

¶ 16. We find no merit in this contention by Turner. The record clearly demonstrates that the State established a factual basis for the charge. At the plea hearing, the following conversation transpired between Turner and the trial court:

Q: Okay. I’m going to read you something that’s in here (plea agreement), and I’m going to ask you some questions about it. Okay? Your petition says that back on February the 27th, 1999, in Lauder-dale County, Mississippi, that you were operating a vehicle on the roads of the county with a breath alcohol content in excess of .10 and that while on Pine Springs Road, your vehicle collided with another vehicle and your passenger, Willie C. Jones died. Is that, in fact, a true statement? Did it happen in that way?
A: Yes, sir.
* * *
Q. Okay. This indictment says that your blood alcohol level was .29 percent when it was tested after the accident — shortly after the accident. Is that true as far as you know?
A. I wouldn’t have no recollection.
Q. I assume they drew blood at the hospital during the normal course of treating you for your injuries.
A. Yes, sir. That’s what he said.
Q. Is that your understanding that those blood tests showed that your alcohol level was at that level?
A. Yes. sir.
* * *
BY THE COURT: Okay. I need some evidence that there was, in fact, negligent operation of the motor vehicle— whether the point of impact was over in the other lane, whether he was speeding, whether he crossed the double-yellow line.
BY MS. HOWELL: Judge, according to Officer Reeves, who is in accident reconstruction, he was in the other lane. It was a head-on collision.
BY THE COURT: And the impact took place in the other vehicle’s proper lane of travel and not his?
BY MS. HOWELL: Right. And that would be Mr. (Unintelligible), his lane.
BY THE COURT: Okay.

¶ 17. A factual basis for a guilty plea may be established in a number of ways, including by a statement of the prosecutor, the testimony of live witnesses, and prior proceedings, as well as an actual admission by the defendant although it is not necessary that the factual basis be established with words spoken from the defendant’s own mouth. See Corley v. State, 585 So.2d 765, 767 (Miss.1991). We conclude, therefore, that the trial court did have before it enough to find an adequate factual basis for accepting Turner’s guilty plea.

Defective Indictment

¶ 18. Turner contends that the indictment was fatally defective in two respects: the charge was misidentified and the wrong subsection was specified. He avers that these flaws deprived the trial court of jurisdiction to hear his guilty plea. Consequently, he reasons that his guilty plea should be rendered null and void.

¶ 19. The first alleged defect concerns the caption of the indictment. The caption identifies the charge as “DUI Manslaughter.” Turner argues that the indictment should have read “DUI negligent death statute.” He also explains that the statutory provision for what he calls “the DUI negligent death statute,” Mississippi Code Annotated section 63-11-80, was included directly under the caption. Turner asserts that this misidentification of the charge resulted in his not being properly informed of the charge against him.

¶ 20. We find this contention to be utterly without merit. As Turner points out, the proper statute, albeit the wrong subsection, was included in the indictment. But more importantly, the language contained in the body of the indictment makes it impeccably clear that Turner was charged with causing the death of his passenger while feloniously and negligently operating a vehicle under the influence of intoxicating liquor. The error in the identification of the subsection apparently resulted from a 1998 amendment which added a subsection to section 63-11-30 and renumbered some of the existing subsections. The language which had originally been contained in “subsection 4” was, after the amendment, contained in “subsection 5.”

¶ 21. The charging part of the indictment reads:

That Tommy Turner, Jr. ... did wilfully, unlawfully and feloniously operate a vehicle while under the influence of intoxicating liquor, while having a 0.29 alcohol level in his blood ... [and] that Tommy Turner, Jr. operated a motor vehicle in a negligent manner by driving on the wrong side of a public road, thereby causing an accident resulting in the death of Willie C. Jones, who was a passenger in Tommy Turner, Jr.’s vehicle.

¶22. If an indictment reasonably provides the accused with actual notice and it complies with Rule 7.06 of the Uniform Circuit and County Court Rules, it is sufficient to charge the defendant with the crime. See McNeal v. State, 658 So.2d 1345, 1350 (Miss.1995). We find that Turner’s indictment met this standard. Moreover, “a" valid guilty plea admits all elements of a formal charge and operates as a waiver of all non-jurisdictional defects contained in an indictment or. information against a defendant.” Reeder v. State, 783 So.2d 711, 720(¶ 36) (Miss.2001). The specification of the wrong subsection in an indictment is not a fatal flaw, particularly where the defendant clearly had notice of the charges against him. Rigby v. State, 826 So.2d 694, 703-04(¶ 19). (Miss.2002).

¶ 23. For the reasons set forth in this opinion, we find that the trial court did not err in dismissing Turner’s complaint as lacking merit. Therefore, we affirm the trial court in every aspect.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

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


text:
    Tyres Frai’ Aunt AUTREY, Appellant, v. Rudolph Lowell PARSON, Appellee.
    No. 2002-CP-00309-COA.
    Court of Appeals of Mississippi.
    Aug. 5, 2003.
    Rehearing Denied Oct. 21, 2003.
    Certiorari Denied Jan. 22, 2004.
    Tyres Frai’ Aunt Autrey, Appellant, pro se.
    Gary L. Roberts, attorney for Appellee.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   IRVING, J.,

for the Court.

¶ 1. Tyres Frai’ Aunt Autrey filed a complaint for paternity against Rudolph Lowell Parson in the Chancery Court of Jackson County. Parson answered the complaint and filed a motion to dismiss, alleging that the action was barred by the statute of limitations and the doctrines of estoppel and laches. The trial court granted Parson’s motion to dismiss. Feeling aggrieved by the trial court’s decision, Au-trey, proceeding pro se, has appealed and lists the issues as what may be best described as four statements of observation. However, a careful reading of his brief reveals, as may be expected, that his chief complaint is that the trial court should not have dismissed his complaint and that, as a matter of law, the trial court erred in doing so.

FACTS

¶ 2. Believing Rudolph Lowell Parson to be his biological father, Tyres Frai’ Aunt Autrey, at the age of twenty-nine, filed a complaint for paternity against Parson. Pursuant to a motion to dismiss filed by Parson, the trial court dismissed the complaint as untimely. The primary basis for the dismissal was that the action was barred by Mississippi Code Annotated section 93-9-9 (Supp.2002), which reads in pertinent part as follows:

(1) Paternity may be determined upon the petition of the mother, or father, the child or any public authority chargeable by law with the support of the child; provided that such an adjudication after the death of the defendant must be made only upon clear and convincing evidence.... However proceedings hereunder shall not be instituted by the Department of Human Services after the child has reached the age of eighteen (18) years but proceedings may be instituted by a private attorney at any time until such child attains the age of twenty-one (21) years unless the child has been emancipated as provided in Section 93-5-25 and Section 93-11-65.

ANALYSIS AND DISCUSSION

¶ 3. In dismissing Autrey’s complaint, the trial court felt that the doctrines of laches and equitable estoppel were applicable. However, in the view of the trial court, it was “very clearly and glaringly clear [that] the statute of limitations on paternity under section 93-9-9 and other appropriate sections” had expired. Notwithstanding the trial judge’s brief discussion of laches and equitable estoppel, we read his rather strong comment about the statute of limitations as being the basis for dismissing Autrey’s complaint. Therefore, we will limit our discussion to this issue.

¶ 4. “Statutory interpretation is a question of law, and we review questions of law de novo.” DePriest v. Barber, 798 So.2d 456, 457-8 (¶ 5) (Miss.2001). “[W]e are not required to defer to the trial court’s judgment or ruling.” Id.

The primary rule of construction is to ascertain the intent of the legislature from the statute as a whole and from the language used therein. Where the statute is plain and unambiguous there is no room for construction, but where it is ambiguous the court, in determining the legislative intent, may look not only to the language used but also to its historical background, its subject matter, and the purposes and objects to be accomplished

DePriest, 798 So.2d at 458 (¶ 5). “Instead of looking at the appropriateness of the trial judge’s holding, the statute’s language acts as [the] guide in determining the proper outcome” of the case. Id. We now turn to the statute in question.

¶ 5. Before the subject statute was amended in 1999, the pertinent portion of it read as follows:

Paternity may be determined upon the petition of the mother, or father, the child or any public authority chargeable by law with the support of the child; provided that such an adjudication after the death of the defendant must be made only upon clear and convincing evidence.... However, proceedings hereunder shall not be instituted after the child has reached the age of eighteen (18) years.

Miss.Code Ann. § 93-9-9(1) (Rev.1994) (emphasis added). The highlighted portion of the statute was revised in 1999 to read:

However proceedings hereunder shall not be instituted by the Department of Human Services after the child has reached the age of eighteen (18) years but proceedings may be instituted by a private attorney at any time until such child attains the age of twenty-one (21) years unless the child has been emancipated as provided in Section 93-5-28 and Section 93-11-65.

Miss.Code Ann. § 93-9-9 (Supp.2002). Prior to July 1989, there was no statute of limitations for the filing of a paternity suit under this statute.

¶ 6. In discussing the statute’s legislative intent, our supreme court has explained that since the statute antedated Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), the legislative intent was to provide a method for determining paternity of illegitimate children in order to enforce support. Baker v. Williams, 503 So.2d 249, 252 (Miss.1987).

¶ 7. We are bound by our supreme court’s interpretation of the legislative intent of the statute. However, even if we were not so bound, we would arrive at the same conclusion. It appears clear to us that the statute’s limitation on when an action for paternity can be brought is for the sole purpose of enforcing the defaulting putative parent’s obligation to pay child support. Otherwise, there would be no need to include the Department of Human Services among the persons who may bring a paternity action. Further, the ex-tinguishment of the right to bring such action when the child has either been emancipated or attained his majority further argues in favor of the view that the time limitation imposed in the statute applies when paternity is sought to be established for the purpose of enforcing child support obligations, and not when paternity is sought to be established without being coupled with the concomitant obligation to pay child support.

¶ 8. Here, Autrey seeks a determination of paternity not for the purpose of enforcing his putative father’s child support obligations, but for the singular purpose of knowing his ancestry. Clearly, since Au-trey was twenty-nine at the time the complaint was filed, even if he had been successful in the court below, no child support could have been ordered since he is not a minor.

¶ 9. The question then is presented, if, as here, the object of the paternity action is not the enforcement of a child support obligation but the establishment of paternity for other reasons, whatever they may be, does the statute still apply, and if it does not, is there an applicable statute of limitations. In addition to this question, there is also the question—assuming the applicability of the statute to all paternity actions no matter the purpose—of whether a child, mother or father is bound by the time limitations since a literal reading of the statute only prohibits the Department of Human Services and a private attorney from bringing an action after the child has attained, in the case of the Department of Human Services, the age of eighteen or, in the case of a private attorney, the age of twenty-one, provided the child has not been earlier emancipated. Literally, the statute places no time limitation on when an action must be brought by a father, mother, or child unless the private attorney’s action is to be treated as the equivalent of a mother’s, father’s or child’s action.

¶ 10. Further, there is the matter of what can only be characterized as an anomaly in the law created by Mississippi Code Annotated section 91-1-15(3) respecting the inheritance rights and statutory time limitations in which illegitimates may operate to establish their paternity in order to assert their inheritance rights. The relevant portions of this statute read:

(3) An illegitimate shall inherit from and through the illegitimate’s natural father and his kindred, and the natural father of an illegitimate and his kindred shall inherit from and through the illegitimate according to the statutes of descent and distribution if:
(c) There has been an adjudication of paternity after the death of the intestate .... However, no such claim of inheritance shall be recognized unless the action seeking an adjudication or paternity is filed within one (1) year after the death of the intestate or unthin ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less. ...
* : * *
The remedy created herein is separate, complete and distinct, but cumulative with the remedies afforded illegitimates as provided by the Mississippi Uniform Law on Paternity; provided, however, the failure of an illegitimate to seek or obtain relief under the Mississippi Uniform Law on Paternity shall not diminish or abate the remedy created herein.

Miss.Code Ann. § 91-1-15 (Rev.1994).

¶ 11. We begin our analysis by stating that we have found no Mississippi case which is directly on point, that is, no case which recognizes and discusses any distinction, so far as the time limitation is concerned, between a paternity action for enforcement of child support and a paternity action for affording one peace of mind with respect to his ancestry. Nevertheless, we believe the cases of Johnson v. Ladner, 563 So.2d 1368 (Miss.1990), and Knight v. Moore, 396 So.2d 31 (Miss.1981), are instructive.

¶ 12. In Johnson, the putative father brought a paternity action more than seven years after the birth of the child. Johnson, 563 So.2d at 1370. At the time his suit was filed, the applicable portion of section 93-9-9 read as follows: “Paternity may be determined upon the petition of the mother, the child or any public authority chargeable by law with the support of the child.... However, proceedings hereunder, shall not be instituted by the mother after the child has reached the age of one year. ...” Id. (emphasis added). It is noteworthy that the “father” was not even mentioned in the statute as a person who could initiate a paternity action. The Johnson court did not discuss this fact but held that the one-year limitation on bringing the paternity action applied to the mother only, finding that “[t]he above section [Mississippi Code Annotated section 93-9-9], clearly, and unambiguously places the one year requirement on proceedings instituted by the mother.” Id. The court went on to hold that the catch-all statute of limitations, Mississippi Code Annotated section 15 — 1—49, applied to the putative father’s suit. Id.

¶ 13. Following the narrow and conservative interpretation applied in Johnson, we might well be within the realm of proper statutory interpretation of Mississippi Code Annotated section 99-9-9, as it now exists, to hold that, since Autrey is neither the Department of Human Services nor a private attorney, the eighteen-year and twenty-one-year limitation imposed by the statute is not applicable to him. This of course would mean that the three-year catch-all statute, section 15-1-49, would be applicable.

¶ 14. In Knight, on September 13, 1978, a thirty-nine-year-old woman brought a paternity suit against her putative father. Knight, 396 So.2d at 32. In reversing and rendering a judgment in favor of the woman because the suit was time barred, the Knight court determined that the catch-all statute of limitations, section 15-1-49, applied. Id. at 34-5. The court did not discuss the code section under which the paternity action was brought. However, our research shows that at that time, the paternity statute, section 98-9-9, did not contain a time limitation of any sort. In finding that the general catch-all statute was applicable, the court held that the statute ran six years after the woman became twenty-one years of age. Id. at 35.

¶ 15. Therefore, based on the authority of Johnson and Knight, we conclude that it is not necessary for us to decide whether section 93-9-9 or section 15-1^49 is the applicable statute of limitations. Applying either, we find that Autrey’s suit is time barred and, given the most liberal interpretation of the statutes, would have been so barred after he attained the age of twenty-four years, calculated by adding the three years provided in section 15 — 1— 49 to twenty-one years, the point in time when he attained his majority.

¶ 16. This brings us to the last observation regarding the effect of Mississippi Code Annotated section 91-1-15(3). Although we have determined that the trial judge did not err in dismissing Autrey’s complaint, we note that should Autrey survive his putative father, he may, traveling under the auspices of section 91-1-15(3), be finally able to answer the question regarding his paternity which has nagged him all of his life. Of course, that may be of little comfort to him. However, as previously observed, this section allows an illegitimate to seek a declaration of paternity for inheritance purposes within one year of the date of death of the putative father or within ninety days of the date of the first publication of the notice to creditors, whichever comes first.

¶ 17. For the reasons set forth herein-above, we find that the trial court did not err in dismissing Autrey’s complaint, notwithstanding the fact that — depending on his longevity, vis-’a-vis, that of his putative father — he may be able to accomplish at the death of his putative father what he cannot accomplish while he lives.

¶ 18. THE JUDGMENT OF THE CHANCERY COURT OF JACKSON 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 GRIFFIS, JJ., CONCUR. CHANDLER, J., NOT PARTICIPATING.

      . In Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), the United States Supreme Court held, inter alia, that it was a denial of equal protection to deny illegiti-mates the right to inherit from both parents.

      . When the woman's suit was brought, section 15-1-49 provided a six-year time period. That was changed by a later amendment to three years.


author: LEE, J.,

text:
    Tommie Lee SKINNER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00847-COA.
    Court of Appeals of Mississippi.
    Oct. 21, 2003.

      Tommie Lee Skinner, Appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MCMILLIN, C.J., BRIDGES, THOMAS, and LEE, JJ.
   LEE, J.,

for the court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On October 12, 1993, in the Chickasaw County Circuit Court, Tommie Lee Skinner pled guilty to one count of armed robbery and one count of second degree arson. Skinner was sentenced to serve twenty years for armed robbery and ten years for arson, to run consecutively and to be served in the custody of the Mississippi Department of Corrections. At some time in 1995 Skinner filed his first motion for post-conviction relief. An evidentiary hearing was apparently granted, although there are only a few pages of the transcript in the record. Skinner’s motion was denied and he appealed to the supreme court, which affirmed the lower court’s ruling on December 28,1995.

¶ 2. In April 2002, Skinner filed his second motion for post-conviction relief. The lower court denied Skinner’s motion stating that the issues had previously been decided and the issues raised were time barred. Skinner now appeals to this Court asserting the lower court erred in accepting his guilty plea to the arson charge.

DISCUSSION OF ISSUE

¶ 3. In reviewing a trial court’s denial of post-conviction relief, our standard of review is well stated. We will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised the applicable standard of review is de novo. Pace v. State, 770 So.2d 1052(¶ 4) (Miss.Ct.App.2000).

¶ 4. In his brief Skinner mentions various issues which he fails to argue or discuss in any way other than making vague assertions. It appears that in October, Skinner will have served the mandatory ten years for the armed robbery charge and he will then have the ten years for the arson charge. Skinner’s main argument is that the lower court erred in accepting his guilty plea because there was an order dismissing the arson charge in justice court. However, this order from justice court was issued on October 14, 1993, two days after Skinner entered a guilty plea. The order dismissed the arson charge because Skinner had already pled guilty in circuit court. We cannot find any merit to this argument.

¶ 5. Although Skinner’s arguments are without merit, his present motion is also untimely and successive. According to Mississippi Code Annotated Section 99-39-5(2), “a motion for relief under this chapter shall be made ... in case of a guilty plea, within three (3) years after entry of the judgment of conviction.” The judgment of conviction was October 12, 1993, and Skinner’s second motion was filed in April 2002. Furthermore, under Mississippi Code Annotated Section 99-39-23(6), all successive petitions are barred if a petitioner has filed a previous post-conviction relief motion. Skinner filed his first motion in 1995 and his second in 2002. Therefore, Skinner’s motion for post-conviction relief is time barred and successive-writ barred.

¶ 6. THE JUDGMENT OF THE CHICKASAW COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO CHICKASAW COUNTY.

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