author: DIAZ, J., SMITH, P.J.,

text:
    SOUTHLAND ENTERPRISES, INC. v. NEWTON COUNTY, Mississippi.
    No. 2001-CA-00838-SCT.
    Supreme Court of Mississippi.
    Feb. 20, 2003.

      G. Martin Warren, Jr., Christian Blue Waddell, Gulfport, attorneys for appellant.
    Danny K. Clearman, Decatur, attorney for appellee.
   DIAZ, J.,

for the Court.

¶ 1. Southland Enterprises, Inc. sued Newton County, Mississippi, demanding payment of $84,800.98 for work it performed on the Chunky-Duffee Road. The complaint also demanded statutory interest pursuant to Miss.Code Ann. § 31-7-305 (2000) and reasonable attorney’s fees pursuant to § 31-7-309.

¶2. At the conclusion of the trial, the jury returned a verdict in favor of South-land in the amount of $21,697.24. Final judgment was entered on that verdict, and the trial court denied Southland’s motion to amend the final judgment to include statutory interest and attorney’s fees. On appeal, Southland raises two issues:

I. DID THE TRIAL COURT ERR IN REFUSING TO GIVE JURY INSTRUCTION P-12?

II. DID THE TRIAL COURT ERR IN REFUSING TO AMEND THE FINAL JUDGMENT TO INCLUDE STATUTORY INTEREST AND ATTORNEY’S FEES?

FACTS

¶ 3. On November 29, 1999, Southland entered into a contract with Newton County to resurface approximately seven miles of the Chunky Duffee Road. The bid on the contract was $68,661.42. The contract specified that the road work, including the leveling, chipping, and sealing of the road, was to be completed by December 30, 1999, according to the 1998 Mississippi Standard Specifications for State Aid Road and Bridge Construction, 1989 edition (State Aid Specifications).

¶ 4. During December 1999, Southland leveled the road and applied the sealant and stone. Shortly after completion of the road, it became apparent that the stone did not adhere to portions of the road where tires traveled. At the same time of the Chunky Duffee Road work, Newton County employees also applied sealant and stone on a paving project on the Providence Road, a road which intersects the Chunky Duffee Road. Unlike the stone applied by Southland, the stone put down by the county employees did adhere to the road.

¶ 5. Newton County Engineer Jimmy Kemp approved a final payment to South-land of $84,800.98. Southland claims that, due to a miscalculation, the correct amount due was $98,800.98. However, later on, when the problems with the road became apparent, the county engineer recommended to James Smith, a Newton County supervisor, that the County pay Southland $21,697.24 for the leveling work, but not for the remainder of the work. Dissatisfied with the overall results of the project, the County refused payment. The County ultimately contended that the entire road had to be resurfaced again, including leveling work. Southland was forced to file its complaint to seek payment.

¶ 6. Evidence presented at trial by Southland included the testimony of Ronald W. Blackledge, President of South-land; Willie McDaniel, Southland’s Superintendent; County Engineer Kemp; and County Supervisor Smith. Their testimony revealed that performing sealing work during the winter months was atypical and actually prohibited by the State Aid Specifications. Low temperatures during the winter months prevent rocks from adhering to the emulsion. Following completion of the road work, temperatures remained in the twenties for approximately one week. Based on this evidence, Southland argued at trial that the County was aware that performing sealing during the winter months was ill-advised. Nevertheless, the County requested the project be completed by December 30, 1999.

¶ 7. The County presented some evidence in an attempt to show that the workmanship and quality of the materials used by Southland was defective. County Engineer Kemp testified that Southland had a responsibility to furnish test results for the rock used on the road work. The rocks could have been out of specification due to moisture, dirt, or size. Bussy Clark, the inspector on location for the County, testified that he requested the test results, but he did not receive any sample reports on the emulsion or stone and thus had no way to tell if the emulsion and stone were good. Furthermore, the testimony of Jerry Cooley and James Smith revealed that the emulsion and rock that the County used in its simultaneously performed project, on the intersecting road, did adhere according to specifications. Therefore, based on this evidence, the County argued that the issue of defective material was properly before the jury.

DISCUSSION

¶ 8. The standard of review when considering the grant or denial of jury instructions is whether, taking the evidence in the light most favorable to the party requesting the instruction, and considering all reasonable favorable inferences which may be drawn from the evidence, that no hypothetical, reasonable jury could find the facts in accordance with the theory of the requested instruction. Church v. Massey, 697 So.2d 407, 410-11 (Miss.1997). A party is entitled to have the jury instructed regarding a genuine issue of material fact so long as there is credible evidence in the record which would support the instruction. Tharp v. Bunge Corp. 641 So.2d 20, 26 (Miss.1994).

¶ 9. On the other hand, it would be error to grant an instruction which is likely to mislead or confuse the jury as to the principles of the law applicable to the facts in evidence. McCary v. Caperton, 601 So.2d 866, 869 (Miss.1992). Further, the court must view the instruction in fight of all the other instructions which were given to determine whether the jury was properly instructed. Munford, Inc. v. Fleming, 597 So.2d 1282, 1286 (Miss.1992). If other instructions granted adequately instruct the jury, a party may not complain of a refused instruction on appeal. Purina Mills, Inc. v. Moak, 575 So.2d 993, 996 (Miss.1990). Lastly, the trial court has considerable discretion in instructing the jury. Splain v. Hines, 609 So.2d 1234, 1239 (Miss.1992).

I. DID THE TRIAL COURT ERR IN REFUSING TO GIVE JURY INSTRUCTION P-12?

¶ 10. The trial court refused to give Southland’s proposed jury Instruction P-12:

You are instructed that a construction contractor who has followed plans or specifications furnished by the owner, and which have proven to be defective or insufficient, will not be responsible to the owner for loss or damage which results solely from the defective or insufficient plans or specifications, in the absence of negligence on the contractor’s part, or any express warranty by him as to the plans and specifications being sufficient or free from defects.
Therefore, if you find by a preponderance of the evidence that the Plaintiff followed plans and specifications provided by the Defendant, that these plans and specifications were defective or insufficient, and that there was no negligence by the Plaintiff or express warranty provided by the Plaintiff, then you may find' that the Plaintiff, Southland Enterprises, is not responsible to Newton County for any damage to the Chunky Duffee Road which resulted from these plans and specifications.

¶ 11. Southland argues that the law is clear in Mississippi that when a construction contractor follows plans and specifications furnished by the owner which then prove to be defective or insufficient, it is not responsible to the owner for the loss of damage that results from the defective or insufficient plans or specifications when the contractor has not been negligent or provided any express warranty. Trustees of First Baptist Church of Corinth v. McElroy, 223 Miss. 327, 334, 78 So.2d 138, 141 (1955). Further, “if, without fault on his part, the contractor fulfills his obligations to complete the work in accordance with plans and specifications provided by the owner, he is not responsible for the adequacy of the final product.” Mayor & City Council of City of Columbus v. Clark-Dietz & Associates-Engineers, Inc., 550 F.Supp. 610, 625 (N.D.Miss.1982), appeal denied sub nom. Clark-Dietz & Assocs-Engineers, Inc. v. Basic Constr. Co., 702 F.2d 67 (5th Cir.1983). See also Employers Ins. of Wausau v. Miss. State Highway Comm’n, 575 So.2d 999, 1002 (Miss.1990).

¶ 12. Southland contends that the substantial evidence at trial showed that the road work problems occurred because the County required the project to be completed in December, when it is not recommended to perform sealing work. Southland submits that the refusal to grant Instruction P-12 was reversible error and that the case should be reversed and remanded for a new trial on the issue of damages only, as the jury has already found that Newton County is liable.

¶ 13. The County argues that the proposed instruction would have been improper because it would have misled the jury and it would not have allowed the jury to consider the probability that Southland used defective materials. The trial court refused to give the instruction because it was “bothered about the issue of whether the material was defective or not.”

¶ 14. In addition, the County submits that the jury was adequately informed by Instruction D-3 that the State Aid Specifications were part of the contract and that the jury might consider those specifications in light of the evidence to determine whether Southland had fulfilled its obligation under the bid contact. Also, Instruction P-3 directed the jury that the burden of proof was on the County to prove that there was failure of consideration by Southland to complete the project in a workmanlike manner that would pass without objection in the trade.

¶ 15. In this case, the jury was left to decide between two theories: (1) whether the County or Southland was at fault for allowing the road work to be performed during cold winter months; and (2) the probability of whether Southland used defective materials that could have contributed to the failure of rock to adhere to the road. Although the jury found for South-land, the jury must have either considered the possibility that Southland used defective material or it must have considered that the County was not entirely responsible for performing the work when the temperature was too low. This is evident from the jury’s award of only $21,697.24, the cost for the completion of the leveling work alone. If the jury awarded the amount to Southland entirely on the basis of the probability that Southland used defective materials, then the jury’s verdict was in accordance with the law. However, we find that if the jury considered South-land even partially responsible for performing the work when the temperature was too low, then the jury’s verdict was in error according to the law. Unfortunately, the instructions given to the jury did not preclude the jury from considering whether Southland was at fault for performing the road work during a time period that is not within the normal specifications.

¶ 16. Southland argues that, if P-12 had been granted, the jury might have awarded Southland the entire amount of the contract. The trial judge, on the other hand, was concerned that Instruction P-12 may have misled the jury into believing that it could not consider the probability that Southland used defective material. However, Instruction P-12 allows the jury to consider any negligence attributable to Southland. This Court finds that the jury, given Instruction P-12, could have still considered the probability that Southland used defective material.

¶ 17. Most importantly, Instruction P-12 would have ensured that Southland could not be liable for any damages resulting from the County’s requirement that the project be completed by December 30, 1999. The County was aware that sealing work should not be performed during the colder winter months, yet it still required the work to be performed before December 30. Unfortunately, as a whole, Instruction D-3, which allowed the jury to consider the evidence in light of the State Aid Specifications, and Instruction P-3, which directed the jury that the burden of proof was on the County to prove that there was failure of consideration on the part of Southland to complete the project in a workmanlike manner, do not adequately instruct the jury on the law. Without Instruction P-12, there is a possibility that the jury might have considered Southland to be partly at fault for performing the road work at a time prohibited by the State Aid Specifications. According to McElroy, Southland should not be at fault for performing the construction work as per the specifications provided by the County. McElroy, 78 So.2d at 141. The trial court erred in refusing Instruction P-12.

II. DID THE TRIAL COURT ERR IN REFUSING TO AMEND THE FINAL JUDGMENT TO INCLUDE STATUTORY INTEREST AND ATTORNEY’S FEES?

¶ 18. In a letter dated January 6, 2000, Newton County Engineer Kemp recommended that the leveling work, which cost $21,697.24, was not in dispute and that the County pay for that work. However, the County refused to make any payment. Southland contends that because the leveling work was not in dispute, the circuit court should have amended the final judgment to include interest in the amount of 116 percent a month from February 5, 2000, 45 days after the invoice was submitted, until the time payment was made on the Final Judgment, December 17, 2000, in accordance with Miss.Code Ann. § 31-7-305 (2000).

¶ 19. The County notes that the interest provisions in the statute only apply to those amounts which are not in dispute. Miss.Code Ann. § 31-7-305(3). The County contends that there was a bona fide dispute as to the leveling work because the contract was an entire contract and not severable. The jury was instructed that if Southland had substantially performed the terms of the contract, the jury was justified in awarding, on the basis of quantum merit, the reasonable value of the materials and services. The trial court found that Stanton & Associates, Inc., v. Bryant Construction Co., 464 So.2d 499, 502 (Miss.1985), was applicable to the case sub judice. Stanton stands for the proposition that a suit based on quantum merit precludes recovery of prejudgment interest and attorney fees. See also McLain v. West Side Bone & Joint Ctr., 656 So.2d 119, 123 (Miss.1995). The trial court reasoned that, notwithstanding the letter and testimony of Engineer Kemp, the County ultimately, before suit was filed, determined that it would reject the road work in its entirety. The County’s position was that the defect ran throughout the entire project. Because Southland was awarded an amount in quantum merit, we find that the County is not liable for statutory interest or attorney’s fees.

CONCLUSION

¶ 20. The jury was not adequately instructed on the law. The instructions provided to the jury failed to address the rule of law which states that the contractor shall not be liable for defects in the specifications that are provided by the owner. The proposed instruction would have allowed the jury to consider the probability that Southland was negligent for using defective material. This Court concludes that the denial of Instruction P-12 resulted in prejudicial error; therefore, the ruling of the trial court is reversed. Also, since the action was based on quantum merit, we find that an award of statutory interest or attorney’s fees would be inappropriate. The trial court did not err in denying an award of statutory interest or attorneys’ fees. Accordingly, the trial court’s order denying an award of statutory interest and attorneys’ fees is affirmed, but its judgment is reversed in part and this case is remanded for a new trial on damages only, consistent with this opinion.

¶ 21. AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

PITTMAN, C.J., McRAE, P.J., EASLEY AND GRAVES, JJ., CONCUR. SMITH, P.J., DISSENTS WITH SEPARATE OPINION JOINED BY WALLER, COBB AND CARLSON, JJ.

SMITH, P.J.,

Dissenting.

¶ 22. In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. Coleman v. State, 697 So.2d 777, 782 (Miss.1997). If the instructions, when so read, fairly announce the law of the case and create no injustice, no reversible error will be found. Id. Further, instructions on damages must furnish the jury with a guide to be used in awarding damages. Gerodetti v. Broadacres, Inc., 363 So.2d 265, 266 (Miss.1978). In my view, considering all jury instructions given as a whole, this jury was adequately instructed.

¶ 23. Instruction P-12 was refused because of the trial court’s concern about Southland’s use of defective materials. The trial judge was concerned that the jury would be misled into believing that it could not consider the probability that Southland used defective materials. I agree with the trial court that confusion could result from the words found in the first paragraph of that instruction specifying that a contractor “will not be responsible to the owner for loss or damage which results solely from the defective or insufficient plans or specifications.” Although that instruction goes on to say that there must be “no negligence by the Plaintiff or express warranty by the Plaintiff,” the refused instruction unnecessarily overemphasizes Southland’s dependence on the plans and specifications belonging to the county. Further, the cases cited by the majority and Southland, although correctly stating the law regarding Southland’s responsibility to the County in regard to furnished specifications, fail to specifically address the issue of the use of defective materials, the county’s sole theory of its case. Under contract law, thé contractor is liable even in the absence of negligence and in the absence of express warranty because of the implied warranties that the work would be acceptable in the trade without objection. The evidence presented at trial clearly supports the jury’s verdict.

¶ 24. There are two means for calculating damages in construction disputes such as this. Where a project is substantially completed according to plans and specifications, the measure of damages may be determined by: (1) the cost rule which is the cost of repairing the defects to make the building or structure conform to the specifications where such may be done at a reasonable expense if unreasonable economic waste is not involved, or (2) the diminished value rule which is the difference in the value of the property with the defective work and what the value would have been if there had been strict compliance with the contract. Gerodetti v. Broadacres, Inc., 363 So.2d 265, 267-68 (Miss. 1978). If substantial compliance with the contract has occurred and cost rule damages for complete compliance would cause economic waste, the diminished value rule is used to measure damages. Id. at 268. This measures the difference in the value of the defective construction and that of the construction specified under the contract. Id. Stated in other terms, when there is substantial performance but the work fails to meet the specifications of the contract, the owner’s damages are equal to the cost to remedy the defects or to do the work as required.

¶ 25. A more complete statement of the rule found in Trustees of the First Baptist Church v. McElroy, 223 Miss. 327, 78 So.2d 138, 141(1955), is as follows:

The rule has become well settled, in practically every American jurisdiction in which the matter has been involved, that a construction contractor who has followed plans or specifications furnished by the contractee, his architect or engineer, and which have proved to be defective or insufficient, will not be responsible to the contractee for loss or damage which results solely from the defective or insufficient plans or specifications, in the absence of negligence on the contractor’s part, or any express warranty by him as to their being sufficient or free from defects.

Id. In McElroy, this Court looked at all of the facts and circumstances before deciding that the plaintiff did not prove by the preponderance of the evidence that the defendant did not protect his work and that the defendant’s negligence did not in any way contribute to the collapse of that budding. Id. This Court found that it was beyond question that the basic underlying cause of the collapsed building was either faulty design, bad soil conditions or both. Id. The defendant had no responsibility for either of those things.

¶ 26. It is implied in every building contract that the work of the builder be performed in a good workmanlike manner, free from defect either in material or workmanship. George B. Gilmore Company v. Garrett, 582 So.2d 387 (Miss.1991). In Gilmore, this Court addressed the issue of negligence in performance of a contract. Gilmore, the builder, testified that the plans and specifications were furnished to him and that he complied with those plans. Id. at 388. However, Gilmore made no soil borings or other soil preparatory tests pri- or to construction nor did he advise that any be made. Id. At the time of construction and the time of trial, there was no custom or practice of builders to make such test nor did the VA or FHA require such testing. Id. Several years after construction, the house developed serious cracks as a result of yazoo clay. Id. at 389. Gilmore was sued by the owners who alleged breach of the implied warranty to build in a workmanlike manner and negligent construction. Id.

¶ 27. This Court quoted a North Carolina case which outlined the duty:

The duty may arise specifically by mandate or statute, or it may arise generally by operation of law under application of the basic rule of common law which imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to endanger the person or property of others ... Moreover, while this duty of care, as an essential element of actionable negligence, arises by operation of law, it may and frequently does arise out of a contractual relationship, the theory being that accompanying every contract is a common law duty to perform with ordinary care the thing agreed to be done, and that a negligent performance constitutes a tort as well as a breach of contract ... But it must be kept in mind that the contract creates only the relation out of which arises the common law duty to exercise ordinary care. Thus in legal contemplation the contract merely creates the state of things which furnishes the occasion of the tort.

Id. at 391 (quoting Pinnix v. Toomey, 242 N.C. 358, 87 S.E.2d 893, 897-98 (1955)). This Court also went further in describing such a duty in stating that:

Where a person contracts to do certain work he is charged with the common law duty of exercising reasonable care and skill in the performance of the work required to be done by the contract, and the parties may not substitute a contractual standard for this obligation ... Accompanying every contract is a common law duty to perform with care, skill and reasonable experience, and a negligent failure to observe any of these conditions is a tort as well as a breach of contract.

Gilmore, 582 So.2d at 391 (quoting 65 C.J.S. Negligence, § 4(6), pp. 494, 496 (1966)). Following along these guidelines, our Court went on to state that the public no longer tolerates “shoddy” products and services, whatever the source. Id. at 392. This Court stated that it would grant relief whenever the product sold or service rendered is “less than the customer or client is fairly and reasonably entitled to expect under current and existing states of skill, knowledge and technology.” Id.

¶28. The next issue addressed was whether Gilmore’s compliance with the plans and specifications and the subsequent inspection and passage on his work by the VA relieved him of liability to the homeowners. Id. at 393. This Court held that the VA standards, the plans and specifications and trade customs were not conclusive on Gilmore’s negligence. Id. As a matter of law, his compliance with these guidelines alone did not relieve him of his obligation. Id. This Court observed that:

It is well settled in the jurisprudence that a contractor is bound to warrant his work and is responsible for damages occasioned by defective workmanship or installation. It is implied in every building contract that the work will be performed in a skillful, careful, diligent and good workmanlike manner.

Id. at 395 (quoting Wetmore v. Blueridge, 391 So.2d 951, 953 (La.Ct.App.1980)). In sum, this Court stated:

It is of course true that a builder/contractor in an ordinary case should not be required to go beyond the plans and specifications, they after all being a part of his contract spelling out his obligations. Neither should plans and specifications which clearly do not take into account a construction problem of which the builder/contractor, the man with expertise should be well aware, remove from him all duty to warn. In such case, the plans and specifications should not constitute an absolute defense.

Id. at 396 (citations omitted).

¶ 29. Having emphasized our controlling case authority, we need only apply it to the case at bar. In the case sub judice, the trial court correctly noted that the issue of defective materials was before the jury. The County Engineer, Jimmy Kemp, testified to the effects of use by Southland of defective materials. He testified that when the CRS-2 emulsion used was not within specifications that the rock would not adhere. He also testified that the rock would not properly adhere if the rock was dirty, contained moisture or was not the correct size. He testified that Southland failed to furnish any test results to the inspector on location even though they were responsible for doing so. Further, the on site inspector, Bussy Clark testified to having requested those results. He verified that he did not receive any sample reports on the emulsion or the stone. Because he had no samples, he had no way to tell whether the materials used by Southland were adequate.

¶ 30. The evidence presented at the trial clearly supports the jury’s verdict which was for an amount less than the original contract price between Southland and Newton County such finding clearly reflects the view of the jury that Southland used defective materials. The jury, properly instructed, found that the County would incur additional costs to re-pave the road as a result of the use of defective materials by Southland. As this Court has stated, we do not consider rejected jury instructions in a vacuum. Wright v. Stevens, 445 So.2d 791, 795 (Miss.1984). That the rejected instruction may state a sound principle of law does not mean its refusal was error. Id. Rather, we look at all the instructions given. Id. We consider the court’s total charge to the jury. Id. If the point encompassed by the rejected instruction was fairly included in other instructions given the jury, which in this case, it was, reversal is not required. Id. (citing Hickombottom v. State, 409 So.2d 1337, 1339 (Miss.1982); Norman v. State, 385 So.2d 1298 (Miss.1980); Knight v. State, 57 So.2d 161 (Miss.1952)). The jury was properly instructed and its verdict should be upheld.

¶ 31. For these reasons, I respectfully dissent.

WALLER, COBB AND CARLSON, JJ., JOIN THIS SEPARATE OPINION.


source: Caselaw Access Project

author: MYERS, J.,

license: Public Domain

text:
    Morine W. MILLER, Appellant, v. J.T. MILLER, Appellee.
    No. 2001-CA-00840-COA.
    Court of Appeals of Mississippi.
    July 30, 2002.
    Rehearing Denied Oct. 1, 2002.
    Certiorari Denied Feb. 13, 2003.

      Rhett R. Russell, Tupelo, attorney for appellant.
    Gary L. Carnathan, Tupelo, attorney for appellee.
    Before McMILLIN, C.J., MYERS, and CHANDLER, JJ.
   MYERS, J.,

for the court.

¶ 1. This is an appeal from the Chancery Court of Itawamba County. Morine W. Miller filed an action to partite the jointly owned property belonging to J.T. Miller and herself. The chancery court dismissed the action ruling that the doctrine of res judicata applied. Morine now appeals raising several issues on appeal. We have chosen to combine them for a more concise review.

1. Whether the lower court erred in concluding that the appellant’s petition for partition of jointly held property was barred by the doctrine of res judicata.
2. If so, did the court err in denying appellant’s motion for default judgment?

FACTS

¶ 2. J.T. and Morine Miller were married in 1953. In 1998, Morine filed for divorce and sought an equitable division of marital property incident to divorce. The chancellor denied the Millers’ divorce in 1999, holding that Morine did not prove the ground claimed in her complaint. Mo-rine did not appeal that decision.

¶ 3. In September of 2000, Morine filed a complaint against J.T. seeking to statutorily partite jointly held property under Mississippi Code Annotated §§ 11-21-3 and 11-21-71 (Supp.2001). On May 16, 2001, the Chancery Court of Itawamba County entered a judgment against Morine holding that she had no right to partite the jointly held property because her divorce action was res judicata to the present action.

STANDARD OF REVIEW

¶ 4. In reviewing a chancellor’s findings in a domestic matter, this Court has limited discretion. “This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or applied an erroneous legal standard.” Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997) (quoting Ferguson v. Ferguson, 639 So.2d 921, 930 (Miss.1994)). “We will not reverse a chancellor’s findings of fact where they are supported by substantial evidence in the record.” Weigand v. Houghton, 730 So.2d 581, 585(¶ 14) (Miss.1999). Courts of review are not to undermine trial court authority by replacing the judgment with its own. Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss.1987).

DISCUSSION

¶ 5. A final judgment on the merits bars further claims by parties or their privies based on the same cause of action under the doctrine of res judicata. Four identities must be present for res judicata to apply: (1) identity of the subject matter of the action; (2) identity of the cause of/civil action; (3) identity of the parties to the cause oficivil action; and (4) identity of the quality or character of a person for or against whom the claim is made. Pro-Choice Mississippi v. Fordice, 716 So.2d 645, 665(¶ 70) (Miss.1998), citing Little v. V. & G. Welding Supply, Inc., 704 So.2d 1336, 1338(¶ 9) (Miss.1997). When these four elements are present a party will be barred from relitigating issues decided in a prior action or those that should have been litigated. Dunaway v. W.H. Hopper & Assoc., Inc., 422 So.2d 749, 751 (Miss.1982).

¶ 6. The chancellor ruled that the four identities of res judicata were met. Parties are precluded from relitigating claims that were decided or could have been raised in a prior action. Baldwin v. Baldwin, 788 So.2d 800, 811(¶ 31) (Miss.Ct. App.2001). He reasoned that the land in question was to be part of a divorce settlement and therefore the same subject matter. In addition, he held that the identity of the civil action, the parties and the identity of the quality or character against whom the claim has been made remains the same.

¶ 7. Morine’s assertion is that no division of property incident to divorce could occur when her complaint for divorce was dismissed. She is correct. Where the chancellor denies a divorce, he is without the authority to order a division of the property. Smith v. Smith, 656 So.2d 1143, 1147 (Miss.1995). The chancellor had no authority to equitably divide any property incident to a divorce as none was granted. Morine chose not to appeal the chancellor’s decision denying her divorce.

¶ 8. Morine cites Trigg v. Trigg, 498 So.2d 334 (Miss.1986) to support her argument that she should be allowed her statutory right to partite jointly held land. In Trigg the supreme court held that the wife had a statutory right to maintain her action for partition of property jointly held with husband even though they remained husband and wife and the husband still lived on the property and claimed it as his homestead. Id. at 335. Mrs. Trigg never filed for divorce. She moved out and then petitioned the court to statutorily partite the land which was her only attempt to regain control over her property. Id.

¶ 9. In the present situation, Morine lives separately from her husband and wants to partite their jointly held property. Morine’s only recourse to recover her property is to file in the chancery court for partition. The identity of the civil action for partition of jointly held property is not tantamount to divorce, thus the second identity required for res judicata is not met.

¶10. THE JUDGMENT OF THE CHANCERY COURT OF ITAWAMBA COUNTY IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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

      . Referring to requirement no. 2, Rule 2 of the Mississippi Rules of Civil procedure provides that there shall be one form of action to be known as "civil action.” Comments for Rule 2 state that the purpose of rule 2 is to eliminate the term "cause of action” from the lexicon of Mississippi civil practice.


author: KING, P.J.,

text:
    Anthony ROBERSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00874-COA.
    Court of Appeals of Mississippi.
    Sept. 3, 2002.
    Rehearing Denied Nov. 12, 2002.
    Certiorari Denied Feb. 13, 2003.

      Johnnie E. Walls, Jr., Greenville, Steven W. Pittman, attorneys for appellant.
    Office of the Attorney General, By: W. Glenn Watts, attorney for appellee.
    Before KING, P.J., LEE, and IRVING, JJ.
   KING, P.J.,

for the court.

¶ 1. Anthony Roberson was convicted of manslaughter in the Circuit Court of Quit-man County and sentenced to serve a term of twenty years in the custody of the Mississippi Department of Corrections with four years suspended. Aggrieved by his conviction and sentence, Roberson has appealed and raised the following issues which we quote verbatim:

I. Did the trial court err by overruling the defendant’s objection to the testimony of Officer Sims, recounting an oral statement given to him by the defendant in response to questioning, on the ground that there was no evidence of a valid waiver of rights by the defendant?
II. Did the trial court err by overruling the defendant’s objection to the testimony of Teresa Ruth, recounting an oral statement given to her by the defendant in response to questioning, on the ground that there was no evidence of a valid waiver of rights by the defendant?
III. Did the trial court err by denying the defense requested jury instruction D-8, and by granting the prosecution requested jury instruction number S-3? TV. Did the trial court err by instructing the jury in accordance with both the defense requested instruction number D-2 and with prosecution requested jury instruction number S-2?
V. Did the trial court err by overruling the defendant’s motion for directed verdict made at the close of all the proof?

FACTS

¶ 2. On September 4, 2000, Charles Sims, Chief of Police for the City of Marks, Mississippi (also an officer with the Town of Falcon Police Department), responded to a call from Ms. Shirley Cotton’s trailer home in Falcon, Mississippi regarding a shooting which occurred at approximately 10:39 p.m. Upon arriving at the trader, Officer Sims found “a body lying on the west side of the road next to a ditch.” As the officer shone his flashlight on the body, he recognized it as that of Tommy Cotton, Ms. Cotton’s ex-husband. He then contacted the Quitman County Sheriffs Department for an ambulance. Officer Sims saw Anthony Roberson (Ms. Cotton’s son) and his wife, Vivian Roberson, on the front porch of the trailer.

¶ 3. Prior to asking Roberson about the incident, Officer Sims orally advised Roberson of his Miranda rights. Officer Sims testified that Roberson then told him that “he and his wife was [sic] in bed, and she woke and told him that someone was in there. She heard some noises in the house, he got up — he got up and got his gun and started down the hall. He saw someone run out the door. He proceeded behind them and he fired one shot in the air, and he said the second shot he leveled off and shot the person.”

¶ 4. According to Roberson’s wife, she put the gun under the steps when a crowd of people gathered. At Officer Sims’ request, Roberson retrieved and gave the gun to the officer. Officer Sims indicated that he collected two shell casings. “One was located on the porch of Shirley Roberson’s trailer. The other one on the ground just east of the steps.”

¶ 5. After gathering information at the scene, Officer Sims asked Roberson, his wife, and his mother to come to the town hall and put their statements in writing. While at the town hall, Roberson executed a written waiver of rights form, which was witnessed by Officer Sims. Roberson then gave a handwritten statement to the officer.

¶ 6. The county coroner, Teresa Ruth, testified that upon examining the body, she noticed a bullet hole located in the center of the deceased’s back. As part of her investigation, she attempted to determine if there was a trail of blood between the trailer and the spot where the body was located. She saw no such blood trail. She stated that the deceased had a white bank envelope which contained a twenty dollar bill clutched in his hand. Ruth asked Roberson to tell her what had happened. Ruth testified that while standing on the porch of the trailer, Roberson stated that “he and Vanessa [sic] were waked [sic] up when they heard somebody coming into the trailer. And they got up and the intruder ran. He went to get the gun out of the cabinet.... He went on the porch with the gun and fired two shots.”

¶ 7. Dr. Steven Hayne performed an' autopsy on the body of Tommy Cotton. He testified that “there was an entrance gunshot wound being located over the mid-part of the back 17& inches below the top of the head, one inch to the right or the mid-part of the back.” Dr. Hayne determined that the cause of death was a “gunshot wound to the back, distant or near contact and perforated.”

¶ 8. At trial on May 1, 2001, Anthony Roberson was found guilty of manslaughter. He was sentenced to serve a term of twenty years in the custody of the Mississippi Department of Corrections with four years suspended.

¶ 9. On May 31, 2001, Roberson filed a motion for judgment notwithstanding the verdict or alternatively a new trial. This motion was denied.

ISSUES AND ANALYSIS

I.

Did the trial court err by overruling the defendant’s objection to the testimony of Officer Sims, recounting an oral statement given to him by the defendant in response to questioning, on the ground that there was no evidence of a valid waiver of rights by the defendant?

¶ 10. Roberson contends that the trial court erred by overruling his objection to Officer Sims’ testimony. Roberson claims Officer Sims recounted an oral statement given to him without evidence having been presented of a valid waiver of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Roberson maintains that the State did not provide evidence of a waiver of his rights during the initial talk with Officer Sims at the scene.

¶ 11. When the circuit court expressly or implicitly resolves the issue of admissibility of a confession against a defendant, this Court’s scope of review is confined to established limits. Greenlee v. State, 725 So.2d 816(¶21) (Miss.1998). This Court has held that, “[w]here the trial court has overruled a motion to suppress the confession of a defendant, this Court will reverse the trial court’s decision only if the trial court’s ruling ‘is manifestly in error or contrary to the overwhelming weight of the evidence.’ ” Id. (quoting McGowan v. State, 706 So.2d 231, 235

(Miss.1997)).

¶ 12. Officer Sims testified that he gave Roberson an oral Miranda warning prior to talking with him. Officer Sims asked Roberson if he understood his rights to which the reply was affirmative. Officer Sims testified that after the Miranda rights were given to Roberson, Roberson told him what happened.

¶ 13. The testimony during the suppression hearing reveals the following:

Q. Did he make a statement to you at the scene?
A. Yes, sir, he did.
Q. Prior to making that statement to you, what, if anything, did you say to him or do in regards to him speaking to you?
A. I gave him his Miranda [r]ights verbally on the scene.
Q. All right. When you refer to Miranda [r]ights, is that the right to remain silent, the right to an attorney, et cetera?
A. Yes, sir.
Q. Okay. And did he appear to understand those rights?
A. Yes, sir. I asked him did he understand them.
A. And he went on to tell me that he— he and his wife was in bed, and she woke him and told him that someone was in there. She heard some noises in the house, he got up — he got up and someone run out the door. He proceeded behind them and he fired one shot in the air, and he said the second shot he leveled off and shot the person.

¶ 14. Officer Sims testified that at city hall he gave Roberson his Miranda rights a second time. At that time, Roberson signed a Miranda waiver of rights form. The State did provide evidence through the officer’s testimony, which was uncon-tradicted, that Roberson was advised of his Miranda rights. Consequently, if Roberson’s attorney doubted whether the officer knew the Miranda warnings, he should have developed this fine of questioning on cross-examination. Dees v. State, 758 So.2d 492(¶ 7) (Miss.Ct.App.2000).

¶ 15. The following testimony reveals Roberson’s view regarding the Miranda warnings:

BY THE COURT: Mr. Walls, what is the objection if he gave him the Miranda rights to the statement, both written and oral?
BY MR. WALLS: Your Honor, my client will testify that he told him that he had to sign it. He said he didn’t want to talk right then because he was upset and he presented it to him and said you had to sign this and he signed it.

¶ 16. The mere fact that the Miranda warnings are given orally does not render them insufficient. The Mississippi Supreme Court has said on this matter:

The appellant cites no authority, nor are we aware of any which requires that a waiver of an accused’s constitutional privileges against self-incrimination, right to counsel, etc. must be in writing and signed by the accused before incul-patory statements made by him and otherwise freely and voluntarily given are admissible in evidence. Such a statement is admissible provided the accused has been afforded the protection of the Miranda warning and he thereafter knowingly and intelligently waives his rights and freely and voluntarily makes the statement.

Davis v. State, 320.So.2d 789, 790 (Miss.1975).

The Mississippi Court of Appeals recently reiterated the adequacy of orally administering Miranda warnings in stating “oral Miranda warnings and waivers are effective if proven to the satisfaction of the trier of fact.” The detailed findings of fact and conclusions of law provided by the trial court show that the trier of fact in this case was satisfied with the effectiveness of the oral Miranda warnings.

Taylor v. State, 789 So.2d 787 (¶ 26) (Miss.2001) (citations omitted).

¶ 17. Roberson has not established that the trial court committed manifest error in allowing the confession made to Officer Sims. Therefore, we find no error on this issue.

II.

Did the trial court err by overruling the defendant’s objection to the testimony of Teresa Ruth, recounting an oral statement given to her by the defendant in response to questioning, on the ground that there was no evidence of a valid waiver of rights by the defendant?

¶ 18. Roberson contends that the trial court erred by allowing the testimony of the county coroner, Teresa Ruth, who recounted an oral statement given to her by Roberson. As Roberson was standing on the porch, she identified herself as the coroner and asked that he tell her what happened. Ms. Ruth testified:

A. I just asked him to tell me what had happened. And he told me that he and Vanessa [sic] were waked up when they heard somebody coming into the trailer. And they got up and the intruder ran. He went to get the gun out of the cabinet.
A. Anthony went to get the gun. And the intruder had run out. He went out on the porch with the gun and fired two shots.
Q. Okay. What did he indicate to you that the person that he was shooting at was doing?
A. He indicated that he ran out of the trailer.
A. He stated he got his gun out of the cabinet, went on the porch and fired two shots at the person running.

Roberson objected to the coroner’s testimony, because “she’s an arm of the State” and never advised him of his rights.

¶ 19. When a defendant has once been advised of his Miranda rights, other officers who subsequently discuss that charge with him are not required to advise him of his rights again. Taylor v. State, 789 So.2d 787(¶ 27) (Miss.2001). The evidence in the record indicates that Roberson had been given his Miranda rights verbally. We find that this issue is moot.

III.

Did the trial court err by denying the defense requested jury instruction D-8, and by granting the prosecution requested jury instruction number S-3?

¶ 20.. Roberson contends that the trial court erred by denying his jury instruction D-8 and by granting the State’s jury instruction S-3. He asserts that he is entitled to a jury instruction “couched in language” from his perspective which informs the jury that “if it finds the prosecution has failed to negate self-defense beyond a reasonable doubt, then it is the duty of the jury to acquit the defendant.”

¶ 21. The standard of review regarding challenges to jury instructions is set forth as follows:

Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.
Even though based on meager evidence and highly unlikely, a defendant is entitled to have every legal defense he asserts to be submitted as a factual issue for determination by the jury under proper instruction of the court. Where a defendant’s proffered instruction has an evidentiary basis, properly states the law, and is the only instruction presenting his theory of the case, refusal to grant it constitutes reversible error.

Humphrey v. State, 759 So.2d 368 (¶ 33) (Miss.2000) (citations omitted).

¶ 22. In his brief, Roberson indicates that the jury was not fully and accurately informed of the law governing the case at trial. The record reveals the following:

BY THE COURT: Okay. You want a self-defense instruction is what you’re telling me and these are the last two you have?
BY MR. ROSSI: The State objects to D-6 and D-8 on two bases. One is that neither one of these instructions are correct statements of the law. The Robinson case clearly outlines and is the longstanding case in the state of Mississippi defining self-defense....
BY THE COURT: That’s the law. I have familiarized myself with the law on this ease. 87-315[sic] is justifiable homicide what the State has indicated. I’m going to give S-3. I’m going to put refused. I’m going to refuse D-6 and D-8.

While Roberson offered instruction D-8, he did not object to the State’s instruction. Before an instruction may be granted, there must be in the record an evidentiary basis for it. Catchings v. State, 684 So.2d 591, 595-96 (Miss.1996). There was no testimony or evidence of self-defense. Therefore, we find this issue to be without merit.

IV.

Did the trial court err by instructing the jury in accordance with both the defense requested instruction number D-2 and with prosecution requested jury instruction number S-2?

¶ 23. Roberson contends that the trial court erred by instructing the jury in accordance with his instruction D-2 and the State’s instruction S-2. Instruction D-2 is stated as follows:

In order to find Anthony Roberson guilty of manslaughter you must find that he killed Tommy Cotton by culpable negligence. Culpable negligence is defined as the omission to do something which a reasonable, prudent person would do, or the doing of something which a reasonable, prudent person would not do, under the circumstances surrounding the particular case. Culpable negligence must be ascertained from the facts of each case.

Instruction S-2 is stated as follows:

The Court instructs the jury that manslaughter is the killing of a human being by the culpable negligence of another, and if you believe from the evidence in this case beyond a reasonable doubt that ANTHONY ROBERSON on September 4, 2000, did kill Tommy Cotton, a human being, by an act of culpable negligence which is more than gross negligence and constitutes a departure from what would be the conduct of an ordinarily careful and prudent person under the same circumstances, so as to evince an indifference to the consequences of such acts, then and in that event you should find the defendant, ANTHONY ROBERSON, guilty as charged.

¶ 24. Roberson maintains that neither of the above instructions fully, fairly and adequately informed the jury as to the elements of the offense. He indicates that “the State’s instruction diminishes the level of departure from standards of ordinary care which will elevate ordinary negligence to culpable negligence as contemplated by Mississippi Code Annotated Section 97-3-47 (Rev.2000).”

¶ 25. However, Roberson acknowledges that his instruction makes no distinction at all between culpable negligence and ordinary negligence. Because it is the State’s duty to prove every element of the crime beyond a reasonable doubt, the State also has a duty to make sure the jury is properly instructed with regard to the essential elements of the crime. Reddix v. State, 731 So.2d 591(¶4) (Miss.1999). “It is rudimentary that the jury must be instructed regarding the elements of the crime with which the defendant is charged.” Id.

¶ 26. The defense counsel and the State discussed jury instructions D-2 and S-2 regarding what constitutes culpable negligence with the trial judge. The trial judge determined that instruction S-2 provided an adequate meaning of culpable negligence and allowed the instruction to be given to the jury.

¶ 27. After discussion of jury instruction D-2, the trial judge modified this instruction and noted there was no objection to the modification. Failure to offer a timely objection to an instruction at trial constitutes a waiver of the issue on appeal. Brown v. State, 764 So.2d 463 (¶¶20, 21) (Miss.Ct.App.2000). Therefore, we find no error on this issue.

Y.

Did the trial court err by overruling the defendant’s motion for directed verdict made at the close of all the proof?

¶ 28. Roberson contends that the trial court erred by overruling his motion for directed verdict. Roberson relies on Weathersby v. State, 165 Miss. 207, 147 So. 481, 482 (1933), which states that:

Where the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.

¶ 29. Roberson indicates that there is no other evidence of the circumstances which surrounded this shooting other than the accounts given by him and his wife as eyewitnesses. Roberson’s reliance on Weathersby is misplaced. Weathersby only has application when the testimony is uncontradicted. The location of the body, the lack of a blood trail, the location of the wound and the location of the shell casings all contradict Roberson’s claim of self-defense.

¶ 30. This issue is without merit.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF QUITMAN COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FOUR YEARS SUSPENDED IS AFFIRMED. SENTENCE TO RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED. ALL COSTS ARE ASSESSED AGAINST THE APPELLANT.

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

      . Instruction D-8: The Court instructs the jury that the Defendant, Anthony Roberson, was at the time of the shooting of Tommy Cotton entitled to act upon appearances, and if the conduct of the deceased, Tommy Cotton, was such as to induce in the mind of a reasonable person, situated as Anthony Roberson was, under all the circumstances that existed, and viewed from the standpoint of Anthony Roberson, a fear that death or great bodily harm was about to be inflicted by the deceased on her [sic], it does not matter if there was no such danger provided that the jury believes that Anthony Roberson acted in self-defense from real and honest conviction. Under those circumstances then the jury should find Anthony Roberson "Not Guilty", even though the jury might believe that at the time he was actually mistaken and that he was not in any great danger.

      . Instruction S-3: The Court instructs the jury that to make an assault justifiable on the grounds of self-defense, the danger to the defendant, ANTHONY ROBERSON, must be either actual, present and urgent, or the defendant, ANTHONY ROBERSON, must have reasonable grounds to apprehend a design on the part of the victim, Tommy Cotton, to kill him or do him some great bodily harm, and in addition to this he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the grounds upon which the defendant, ANTHONY ROBERSON, acts.

      . Mississippi Code Annotated Section 97-3-47 (Rev.2000) provides: Homicide; all other killings: Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter.


author: McMILLIN, C. J.,

text:
    Martha M. BEST a/k/a Martha M. Hinton Best, Appellant, v. Howard Clayton HINTON, Appellee.
    No. 2001-CA-00521-COA.
    Court of Appeals of Mississippi.
    Sept. 3, 2002.
    Rehearing Denied Nov. 5, 2002.
    Certiorari Denied Feb. 20, 2003.

      Robert R. Marshall, Hattiesburg, attorney for appellant.
    Anthony Alan Mozingo, Hattiesburg, attorney for appellee.
    Before McMILLIN, C.J., LEE, and BRANTLEY, JJ.
   McMILLIN, C. J.,

for the court.

¶ 1. This case comes as an appeal from the judgment of the Chancery Court of Lamar County modifying a previous child custody judgment of that court to change custody of twelve-year old Nathan from his mother, Martha Hinton Best, to his father, Howard Clayton Hinton. The appeal is brought by Mrs. Best. In the appeal, Mrs. Best alleges that the chancellor’s findings of fact were manifestly wrong and clearly erroneous. She additionally urges this Court to find that the chancellor applied an erroneous legal standard to modify custody. Finding that the issues raised have merit, we reverse and render the modification of custody.

I.

Facts

¶ 2. Mr. Hinton filed his petition to modify custody of his minor son, Nathan, eight days before Nathan reached his twelfth birthday. The petition made the concluso-ry allegation that “a material change in circumstances has occurred which adversely affects the welfare of the child, Nathan Clayton Hinton.” However, the petition did not purport to spell out what that material change in circumstance was. Rather, the petition simply went on to declare that the child would soon attain the age of twelve years and had expressed the desire to live with Mr. Hinton and that such a change of custody was “in said child’s best interest under the totality of the circumstances existing.”

¶3. Prior to the hearing of the cause, the chancellor entered an order granting Mrs. Best’s motion in limine to restrict the evidence to matters that had occurred since the conclusion of an earlier contested custody proceeding involving the same child that had ended on July 23, 1999.

¶ 4. The chancellor, in deciding a modification of custody, found as fact that the child was of the age of twelve years and had expressed a preference to live with his father. Additionally, he found as fact that the child had been experiencing discipline problems in school and that he was being left alone at home a couple of afternoons a week during the school year because Mrs. Best’s work schedule as a nurse required her to work until approximately 7:30 p.m. on certain days. The matter of leaving the child unattended by an adult was made somewhat extraordinary by the fact that Nathan was a hemophiliac and, in the case of an injury that might cause extensive bleeding, he would need to have an injection of proper medication promptly administered. There was evidence presented that Nathan had been taught to self-administer the injections should the need arise.

II.

Discussion

¶ 5. Section 93-11-65 of the Mississippi Code permits a child who has reached the age of twelve years to express a preference as to which parent the child desires to live with when custody disputes are presented to the chancery courts of our state for resolution. Miss.Code Ann. § 93-ll-65(l)(a) (Rev.1994). However, such expressions of preference are not conclusive on the issue; rather, the chancellor is required only to take the fact into consideration when assessing the ultimate issue before the court, i.e., what is in the best interest of the child. Westbrook v. Oglesbee, 606 So.2d 1142, 1147 (Miss.1992).

¶ 6. Additionally, there is, in the case now before this Court, the proposition that a change of a previous judicial determination of custody — as opposed to an initial determination of custody — may not be decreed absent a finding that there has been a material change in circumstance in the present custodial arrangement that is adverse to the best interest of the child. Powell v. Powell, 644 So.2d 269, 275 (Miss. 1994).

¶ 7. Finally, in the particular circumstance of this case, the fact exists that Mr. Hinton had unsuccessfully sought a change of custody only some 10 months prior to bringing this petition and the parties stipulated, apparently based on notions of res judicata, that the petition would be determined solely on facts transpiring since the last hearing.

¶ 8. A chancellor’s determination of fact is entitled to substantial deference when tested on appeal. McEwen v. McEwen, 631 So.2d 821, 823 (Miss.1994). He may be reversed only if the reviewing court is convinced that the determinations of fact are not supported by credible evidence or if an improper principle of law has been applied. Smith v. Jones, 654 So.2d 480, 492 (Miss.1995). Despite this limited scope of review, this Court is forced to conclude that the chancellor erred in determining that a change of custody was warranted under existing and binding principles of law. While a child’s expression of preference must be afforded weight by the chancellor, this Court is unaware that it has ever been held that such an expression, supported by nothing more, constitutes the type of adverse material change in circumstance that would warrant a custody modification.

¶ 9. In this case, there was an earlier adjudication, made at a time when the child was already eleven years old, that there was nothing in the existing custody arrangement that the chancellor found detrimental to the child’s interest. Nothing of any significance was shown to have occurred since that determination other than the fact that the child had reached the age of twelve. The chancellor made no determination that leaving the child alone at home for a few hours on several days during the week while his mother completed her shift as a nurse posed any substantial risk to the child’s well-being. Even if the chancellor had felt that to be the case, there was no medical evidence or other expert testimony tending to show that to be the case. Neither was there any evidence that the custodial mother’s work schedule was a departure from some earlier employment schedule that had permitted the mother to attend to the child at all times when he was not in school. The evidence showed that the mother was in the health care field and had, in fact, occupied a position of prominence in the Mississippi Hemophilia Foundation, an organization dedicated to promoting the welfare of hemophiliac patients. There was also testimony that, during any time the child might be at home in the hours before his mother completed her nursing shift, another family relative was nearby to lend such aid as might be required.

¶ 10. There was additionally some testimony that the child had begun to experience some behavioral problems at school, but testimony offered by a school official indicated that the problems were minimal in nature and, in all events, there was no credible proof that any difficulties for the child arising at school were traceable to any improper action or inaction on the part of the custodial parent, Mrs. Best.

¶ 11. Viewing the evidence in its entirety, this Court simply cannot determine that there has been any change in the circumstances regarding the custody of this child since the previous adjudication leaving the child in the custody of his mother that would warrant a modification of that custody. We do not hold, by this decision, that there might not be a situation where a child, of some age over twelve years, could articulate compelling reasons as to why a change of custody would be in that child’s best interest to the extent that the child’s preference, supported by those articulated reasons, would warrant some modification. We simply conclude that, in this case, there was no such declaration by the child of sound, reasonable, and compelling reasons why he thought a change of custody was in his best interest. That fact, in combination with our determination that Mr. Hinton presented no convincing evidence that the custodial situation with Mrs. Best had so deteriorated since the earlier adjudication as to adversely affect the child’s welfare, convinces us that the chancellor abused his discretion in this instance. For that reason, we find ourselves compelled to reverse and render the judgment of the chancellor modifying custody of this child.

¶ 12. THE JUDGMENT OF THE CHANCERY COURT OF LAMAR COUNTY MODIFYING THE CUSTODY OF THE MINOR CHILD OF THE PARTIES IS REVERSED AND RENDERED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING AND SOUTHWICK, P.JJ., THOMAS,'LEE, IRVING, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR. BRIDGES, J., CONCURS IN RESULT ONLY.


text:
    Mark Rodriguez ALONSO, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-KA-02058-COA.
    Court of Appeals of Mississippi.
    Sept. 3, 2002.
    Rehearing Denied Dec. 3, 2002.
    Certiorari Denied Feb. 20, 2003.

      W.F. Holder, II, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, P.J., LEE, and IRVING, JJ.
   KING, P.J.,

for the court.

¶ 1. Mark Rodriguez Alonso appeals the decision of the Harrison County Circuit Court convicting him of aggravated assault. Alonso raises the following issues in this appeal, which we cite verbatim:

I.
The State indicted defendant under Section 97 — 3—7(2) (b), but aggravated assault with use of only the hands is properly brought under Section 97-3-(2) (a) where the elements of proof differ.
II.
State instruction # 9 (S-1A) submitted to the jury was inadequate and improper in that it failed to properly describe the elements of aggravated assault under Section 97-3-7(2) (b) and further idicated [sic] that simply using fists in striking another is a means likely to produce death or serious bodily harm, per se.
III.
Section 97 — 3—7—(2)(b) of the Mississippi Code is unconstitutionally vague because it does not make a distinction between “serious bodily injury” and “bodily injury” and does not define “serious bodily harm.”
IV.
The trial court erred in allowing the surgeon who treated the victim to testify as to the meaning of a legal term, “serious bodily injury,” thereby invading the province of the jury.
V.
Defendant did not receive due process and a fair trial due to ineffective assistance of counsel.
VI.
The court erred in failing to sustain defendant’s motion for a directed verdict and/or for a judgment notwithstanding the verdict of the jury and was against the overwhelming weight of the evidence.
FACTS

¶ 2. Alonso married Bertha Nell Marten-sen in 1988. The couple divorced in 1993. Both Alonso and Martensen lived in Long Beach, Mississippi and worked at NAVO-CEANO at the Stennis Space Center. After the divorce, Alonso and Martensen continued to have an intimate relationship. Alonso frequently visited Martensen at her residence.

¶ 3. On September 14, 1998, Alonso stopped by Martensen’s house before going to work. Martensen left home to go to Goodyear followed by Alonso. While Mar-tensen talked to a Goodyear technician, Alonso interrupted and stated he would fix her car. Martensen rejected his offer. After leaving Goodyear, Martensen returned home and found Alonso’s car parked in her driveway. However, Alonso had left with Martensen’s neighbor.

¶4. When Alonso returned he entered Martensen’s house by a door left unlocked by Martensen’s daughter, Gina. Alonso entered the bathroom where Martensen was taking a shower. After her shower, Mar-tensen began to dress for work. At some point an altercation arose between Alonso and Martensen. During the altercation, Martensen was choked to unconsciousness and received injuries to her neck and face.

¶ 5. On March 18, 1999, Alonso was indicted for aggravated assault on Marten-sen. In a trial on December 5, 2000, Mar-tensen testified that in September of 1998 she was choked and punched by Alonso. Several witnesses, including Martensen’s daughter and Martensen’s neighbor, stated that in September 1998 they saw Marten-sen running from her bedroom beaten and bloody. Dr. Beauford Moore, a plastic surgeon, testified about Martensen’s injuries and their treatment.

¶ 6. Alonso admitted to having punched Martensen in the face. He explained his actions were in self-defense to protect himself from Martensen, who had a gun.

¶ 7. On December 6, 2000, a jury found Alonso guilty of aggravated assault. He was sentenced to five years with four years suspended and one year to serve in the custody of the Mississippi Department of Corrections.

DISCUSSION

I.

Whether the State indicted defendant under Section 97 — 3—7(2)(b), but aggravated assault with use of only the hands is properly brought under Section 97 — 3—(2)(a) where the elements of proof differ.

II.

Whether State instruction # 9 (S-1A) submitted to the jury was inadequate and improper in that it failed to properly describe the elements of aggravated assault under Section 97-3-7(2)(b) and further idicated [sic] that simply using fists in striking another is a means likely to produce death or serious bodily harm, per se.

III.

Whether Section 97-3-7-(2)(b) of the Mississippi Code is unconstitutionally vague because it does not make a distinction between “serious bodily injury” and “bodily injury” and does not define “serious bodily harm.”

¶ 8. Alonso’s first three issues are raised for the first time on appeal, and therefore have not been properly preserved for appellate review. The failure to first present a matter to the trial court for determination, serves as a procedural bar to its consideration on appeal. Bogan v. State, 754 So.2d 1289(¶ 19) (Miss.Ct.App.2000). “It is well-settled law that a trial court will only be put in error for a matter brought to his attention.” Trollinger v. State, 748 So.2d 167(¶ 15) (Miss.Ct.App.1999). Matters not asserted at trial are waived. Smith v. State, 724 So.2d 280 (¶ 168) (Miss.1998).

¶9. Accordingly, this Court invokes.the procedural bar and holds that these matters are not properly before it.

IV.

Whether the trial court erred in allowing the surgeon who treated the vie-tim to testify as to the meaning of a legal term, “serious bodily injury,” thereby invading the province of the jury.

¶ 10. The failure to preserve a matter by motion for new trial or JNOV may also serve as a procedural bar to its consideration by an appellate court. Seals v. State, 767 So.2d 261(¶ 6) (Miss.Ct.App.2000). While Alonso objected to the testimony of Dr. Moore, he did not include in his motion for a new trial or JNOV, that this testimony was admitted in error. He is therefore procedurally barred from raising this issue for the first time on appeal.

¶ 11. Notwithstanding the procedural bar, this issue lacks merit. As an expert medical witness pursuant to M.R.E. 702, Dr. Moore, is allowed to offer an opinion as to whether Martensen had sustained “serious bodily injury.”

V.

Whether the Defendant did not receive due process and a fair trial due to ineffective assistance of counsel.

¶ 12. The fifth issue for this Court’s review is whether Alonso received effective assistance of counsel. Alonso argues that his trial counsel was ineffective thereby depriving him of due process of law and a fair trial. He complains that his counsel failed to object to an improper indictment, failed to object to an improper jury instruction, failed to object to the unconstitutional vagueness of Mississippi statute 97-3-7(2)(b), and failed to object to prejudicial testimony. The substance of these issues is the same as the substance of those issues that were not preserved at trial, and thereby subject to a procedural bar. However, to the extent these issues touch upon the effective assistance of counsel, this Court will address them.

¶ 13. To establish a prima facie case of ineffective assistance of counsel, the defendant has the burden of demonstrating (1) that the performance of counsel was deficient and (2) that the defendant was prejudiced by counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Stringer v. State, 454 So.2d 468, 476-77 (Miss.1984).

¶ 14. In judging counsel’s performance, this Court considers the totality of the circumstances. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990), and in so doing accords to counsel a “strong but rebuttal presumption that counsel’s conduct falls within a broad range of reasonable professional assistance.” Id. “To overcome this presumption, ‘[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Marshall v. State, 759 So.2d 511(¶ 9) (Miss.Ct.App.2000) (quoting Strickland, 466 U.S. at 694,104 S.Ct. 2052). “In addition to the presumption that counsel’s conduct is rea sonably professional, there is a presumption that counsel’s decisions are strategic in nature, rather than negligent.” Marshall, 759 So.2d at (¶ 9). In sum, “counsel’s choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy.” Scott v. State, 742 So.2d 1190(¶ 14) (Miss.Ct.App.1999). Alonso has failed to demonstrate the likelihood of a different outcome had counsel performed in a different manner. This failure precludes a finding of ineffective assistance of counsel.

VI.

Whether the court erred in failing to sustain defendant’s motion for a directed verdict and/or for a judgment notwithstanding the verdict of the jury and was against the overwhelming weight of the evidence.

¶ 15. In his last assignment of error, Alonso argues that the trial court should have granted his motion for a directed verdict, or failing in that should have granted a JNOV. Both the motion for directed verdict and JNOV challenge the sufficiency of the evidence, and are properly reviewed when last made. Williams v. State, 749 So.2d 159(¶ 7) (Miss.1999).

¶ 16. In doing so, this Court reviews the evidence in the light most favorable to the verdict, and accords to the prosecution the benefit of all reasonable and favorable inferences which are supportable by the evidence. Clay v. State, 811 So.2d 477(¶ 7) (Miss.2002). The issue of the weight and credibility accorded to evidence is a matter to be resolved by the jury, whose province is not invaded by this Court. Id. If after having done these things, this Court is lead to the inescapable conclusion that no reasonable and fairminded juror could have found the defendant guilty, this Court is obligated to reverse the conviction. Id.

¶ 17. When Alonso’s motion was made, the primary evidence supporting the verdict was the testimony of Martensen and Dr. Moore. Martensen testified that Alonso, without provocation, severely beat and choked her into a state of unconsciousness. Dr. Moore testified that Marten-sen’s injuries were medically serious.

¶ 18. The primary evidence in opposition to the verdict was that of Alonso, who acknowledged striking Martensen, but claimed it was in self-defense.

¶ 19. The jury apparently believed Al-onso’s acknowledgment that he struck Martensen, but found incredible his assertion that it was done in self-defense.

¶ 20. There was clearly substantial credible evidence upon which the jury could and did find that Alonso assaulted Martensen. There is no credible basis upon which this Court can find the verdict of guilty to be contrary to the evidence.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF FIVE YEARS WITH FOUR YEARS SUSPENDED ON POST-RELEASE SUPERVISION LEAVING ONE YEAR TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. THE COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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