author: PITTMAN, Chief Justice, SMITH, Presiding Justice,

text:
    WAL-MART SUPER CENTER and Besam, Inc. v. Eva LONG.
    No. 2001-IA-01372-SCT.
    Supreme Court of Mississippi.
    June 26, 2003.
    Rehearing Denied Aug. 28, 2003.

      W.O. Luckett, Jr., Robert M. Tyner, Jr., Clarksdale, J. Keith Pearson, Gulfport, attorneys for appellants.
    Leroy D. Percy, Jackson, Gray Tollison, Oxford, Gary L. Carnathan, Tupelo, attorneys for appellee.
    Before PITTMAN, C.J., WALLER and CARLSON, JJ.
   PITTMAN, Chief Justice,

for the Court.

¶ 1. Eva Long filed a complaint in the County Court of Lee County against Wal-Mart Super Center (Wal-Mart) seeking $75,000 for injuries she suffered in an accident involving a mechanical door. Over a year later, she requested leave to increase the ad damnum clause from $75,000 to $750,000; to transfer jurisdiction to the circuit court; and to add additional defendants. The trial court granted leave to amend and transferred the case to circuit court. The county court’s order was stayed, and this Court granted the defendants permission to file this interlocutory appeal, see M.R.A.P. 5., which presents two issues: (1) whether the county court erred by granting leave to amend; and (2) do county courts have the authority to transfer cases to the circuit court. This Court affirms and remands.

FACTS

¶ 2. On August 30,1998, Long suffered a broken hip after she was allegedly struck by an automatic door at the Wal-Mart Super Center in Tupelo. She filed suit on July 20, 2000 in the County Court of Lee County seeking $75,000 damages. Wal-Mart filed a third-party complaint against Besam, Inc., the manufacturer of the automatic-door. (We will refer to Wal-Mart and Besam collectively as “Wal-Mart”.)

¶ 3. On July 27, 2001, Long requested leave to amend the ad damnum clause of her complaint, to join the store’s manager as an additional defendant, and to transfer the matter to circuit court. A telephonic hearing was conducted on August 17, 2001. Opposing the request, Wal-Mart argued that because it was not sought until after the expiration of the one-year deadline for removal to federal court, Long delayed her request in an effort to prevent them from exercising their right to removal. They submitted that this was a “classic example of forum manipulation” and that because they may not now seek removal, they would suffer actual prejudice if the decision granting the amendment is affirmed.

¶ 4. Long argued that the amendment would not prejudice Wal-Mart’s defense. Counsel for Long insisted that there was no dilatory motive or bad faith for the delay and assured the court that the delay was unintentional.

¶ 5. Ultimately, the county court held that the delay did not cause Wal-Mart to suffer actual prejudice. The county court granted Long’s request to amend the ad damnum clause and ordered the matter transferred to circuit court, who would have to decide whether to allow the store manager to be joined.

STANDARD OF REVIEW

¶ 6. Motions for leave to amend a complaint are left to the sound discretion of trial court. Moeller v. Am. Guar. & Liab. Ins. Co., 812 So.2d 953, 961 (Miss.2002) (citing Preferred Risk Mut. Ins. Co. v. Johnson, 730 So.2d 574 (Miss.1998)(collecting authorities)). The Court reviews such determinations under an abuse of discretion standard. Moeller, 812 So.2d at 961 (collecting authorities). Unless convinced that trial court abused its discretion, the Court is without authority to reverse. Id.

¶ 7. Although the trial court has discretion to allow an amendment, and should do so freely under the proper circumstances, it should not allow amendment when to do so would prejudice the defendant. Johnson, 730 So.2d at 579; Hester v. Bandy, 627 So.2d 833, 839 (Miss.1993).

ANALYSIS

I. DID THE COUNTY COURT ERR IN ALLOWING THE PLAINTIFF TO AMEND HER COMPLAINT?

¶ 8. The first issue is whether the Wal-Mart suffered “actual prejudice” after Long was allowed to amend her complaint. This requires the Court to consider what bearing the federal right to removal has on the state’s policy to freely allow amendments.

¶ 9. Although never alleged by Long, the trial court granted leave based on new medical bills. Wal-Mart stresses that no additional medical treatment has been needed and that virtually all medical treatment relating to the accident occurred in the years 1998 and 1999, well before the filing of the original complaint. Wal-Mart submits that this finding is erroneous.

¶ 10. Further, Wal-Mart argues that Long should have known the nature and extent of her damages but chose to file in county court. The only change in circumstances, Wal-Mart points out, is the appearance of Gray Tollison, counsel for the Long.

¶ 11. Counsel for Long attributes the delay to his recent association in the case and that it was not until his evaluation that it was discovered the actual medical damages exceeded $80,000. Wal-Mart emphasizes that Long had been represented by competent counsel, Gary L. Carnathan, who is still participating, and that, Tolli-son’s evaluation was based on no new information.

¶ 12. The rule regarding amendments is clear. Leave to amend should be freely granted whenever justice so requires. Miss. R. Civ. P. 15 cmt. See also Moeller, 812 So.2d at 962. Amendments should be denied only if they “would cause actual prejudice to the opposite party.” Id. (emphasis added). See also TXG Intrastate Pipeline Co. v. Grossnickle, 716 So.2d 991, 1011 (Miss.1997). Applications for leave to amend pleadings should be prompt and not the result of an inexcusable want of diligence. Id. at 1011; William Iselin & Co. v. Delta Auction & Real Estate Co., 433 So.2d 911, 913 (Miss.1983) (cited in Natural Mother v. Paternal Aunt, 583 So.2d 614, 617 (Miss.1991)). See also V.A. Griffith, Mississippi Chancery Practice § 392, at 378 (2d ed.1950).

¶ 13. Amendments which are permitted in the latter stages of litigation may deny the important policy favoring finality of judgments and the expeditious termination of litigation. William Iselin & Co., 433 So.2d at 911. Thus, the policy to freely grant amendments is not allowed to encourage delay, laches and negligence. Id. Examples of when motion to amend may be prejudicial include: where it would burden the adverse party with more discovery, preparation, and expense, particularly where the adverse party would have little time to investigate and acquaint itself with the matter. Id. (cited in Natural Mother, 583 So.2d at 617). See also Grossnickle, 716 So.2d at 1011.

¶ 14. Surprisingly, only one court has specifically addressed whether the loss of the federal right to remove an action causes a defendant to suffer actual prejudice. Tyrrell v. Wal-Mart Stores Inc., 278 A.D.2d 770, 719 N.Y.S.2d 163 (2000), rev’d on other grounds, 97 N.Y.2d 650, 737 N.Y.S.2d 43, 762 N.E.2d 921 (2001). In Tyrrell, a jury returned a verdict in favor of a plaintiff which exceeded the damages sought in the complaint. Tyrrell, 278 A.D.2d at 770, 719 N.Y.S.2d 163. The defendant appealed after the judge granted plaintiffs motion to increase the ad damnum clause. Id. The defendant argued that the trial court improperly authorized the plaintiff to amend the complaint. Id. at 772, 719 N.Y.S.2d 163. Because the defendant failed to show that the ability to defend was in any way hindered or that the trial was manifestly unfair, the court held that the inability to remove the case was insufficient to demonstrate the kind and extent of prejudice to preclude the amendment. Id.

¶ 15. Wal-Mart’s argument is premised on the fact that, as originally filed, the case was not removable. However, a closer examination of the original complaint and a review of federal law reveals that they are mistaken.

¶ 16. First, the federal courts allow defendants to remove a case even though the damages alleged by a plaintiff are less than the federal jurisdictional amount. In such circumstances, the Fifth Circuit adopted the “preponderance of evidence” standard. De Aguilar v. Boeing Co., 47 F.3d 1404 (5th Cir.1995) (De Aguilar II).

¶ 17. In De Aguilar II, the relatives of victims of a plane crash filed a wrongful death action in state court and alleged damages less than jurisdictional limit. De Aguilar II, 47 F.3d at 1408. Concerned that plaintiffs may engage in manipulative and “creative” pleading in bad faith, the court applied the “legal certainty test” as set forth in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). 47 F.3d at 1409-11. “In order for a federal court to decline jurisdiction, ‘it must appear to a legal certainty that the claim is really for less than the jurisdictional amount.’ ” Id. at 1409. The Fifth Circuit stated:

[ w]e hold that if a defendant can show that the amount in controversy actually exceeds the jurisdictional amount, the plaintiff must be able to show that, as a matter of law, it is certain that he will not be able to recover more than the damages for which he has prayed in the state court complaint. Such a rule is necessary to avoid the sort of manipulation that has occurred in the instant case.

Id. at 1411.

[T]he plaintiffs claim remains presumptively correct unless the defendant can show by a preponderance of the evidence that the amount in controversy is greater than the jurisdictional amount. The preponderance burden forces the defendant to do more than point to a state law that might allow the plaintiff to recover more than what is pled. The defendant must produce evidence that establishes that the actual amount in controversy exceeds [the jurisdictional amount].

Id. at 1412.

Once a defendant is able to show that the amount in controversy exceeds the jurisdictional amount, removal is proper, provided plaintiff has not shown that it is legally certain that his recovery will not exceed the amount stated in the state complaint.

Id.

¶ 18. As an illustration of a “legal certainty”, the court suggested a party opposing removal file a binding stipulation or affidavit with the complaint. Id. at 1412 (citing In re Shell Oil Co., 970 F.2d 355 (7th Cir.1992)).

¶ 19. Concerned about the difficulty defendants have in satisfying their burden under the “legal certainty test,” the United States District Court for the Southern District of Mississippi discussed how a defendant can ascertain that the case has become removable. McLain v. Am. Int’l Recovery, Inc., 1 F.Supp.2d 628, 631 (S.D.Miss.1998). The court stated:

[ If] defense counsel believes that the damages are in excess of the [jurisdictional limit], the defendant can have the case properly removed utilizing state court discovery rules. Specifically, the defense lawyer can have the plaintiff admit through a deposition, an interrogatory, or a request for admission that his damages do not exceed $75,000.

Id. at 631.

¶ 20. In the instant case, Wal-Mart’s argument that the case was not removable is incorrect. Based on De Aguilar II, Wal-Mart could have sought removal. However, they did not seek to exercise their right provided under federal law. Had they been more diligent, Long would have been required to stipulate whether the amount in controversy would exceed $75,000. Our reliance on De Aguilar II is to rebut Wal-Mart’s argument that matter was not removable.

¶ 21. We note that Wal-Mart still may have its day in federal court. Until recently, the federal courts were less strict in the enforcement of the amount in controversy requirement, in comparison to the one-year deadline on removal provided under 28 U.S.C. § 1446(b). But in Tedford v. Warner-Lambert Co., 327 F.3d 423 (5th Cir.2003), the Fifth Circuit reaffirmed the applicability of equitable tolling where a plaintiff has attempted to manipulate the statutory rules. Id. at 428-29. The court stated:

Section 1446(b) is not inflexible, and the conduct of the parties may affect whether it is equitable to strictly apply the one-year limit ... [The Plaintiffs] forum manipulation justifies application of an equitable exception in the form of estop-pel. In enacting § 1446(b), Congress intended to “reduc[e] opportunity for removal after substantial progress has been made in state court.” Congress may have intended to limit diversity jurisdiction, but it did not intend to allow plaintiffs to circumvent it altogether. Strict application of the one-year limit would encourage plaintiffs to join nondi-verse defendants for 366 days simply to avoid federal court, thereby undermining the very purpose of diversity jurisdiction.

Id. at 426-27 (footnotes omitted). Thus in Tedford, it is apparent that the Fifth Circuit has developed its own methods for policing forum manipulation.

¶ 22. This Court holds that the amended complaint does not cause Wal-Mart to suffer actual prejudice. Wal-Mart knew the state’s policy on amended pleadings. Based on the original complaint, Wal-Mart could have sought removal. Nevertheless, Wal-Mart chose not to protect its federal statutory right of removal and now requests the Court to oblige. This Court is not the guardian for the jurisdiction of the federal courts.

¶ 23. Wal-Mart has not shown how its ability to defend was hindered or how a trial in state court would be manifestly unfair. Therefore, the county court did not abuse its discretion in granting leave to amend.

II. DID THE COUNTY JUDGE ERR IN GRANTING THE MOTION TRANSFERRING THE CASE TO CIRCUIT COURT?

¶ 24. Miss.Code Ann. § 9-9-21 governs the jurisdiction of county courts. Wat-Mart argues that under § 9-9-21 county courts do not have the authority to transfer a case to circuit courts by granting an amendment that effectively divests itself of jurisdiction. The Court disagrees.

¶ 25. As previously noted, leave to amend should be freely granted. Such a policy should not be hindered by the limited jurisdiction of the county courts. Accordingly, we find that county courts have the authority to grant an amendment even though by doing so it will divest itself of jurisdiction and require the matter to be transferred to either the chancery or circuit courts. Such authority is incidental M.R.C.P. 15’s policy to freely allow leave to amend and in accordance with the policy to provide complete remedy.

CONCLUSION

¶ 26. We find that the decision to grant leave to amend does not cause the Wal-Mart to suffer actual prejudice. Further, we find that the county court has the power transfer an action to chancery or circuit court. This power is incidental to the policy to freely allow amendments to pleadings and the policy favoring a complete remedy. Therefore, we affirm the county court’s order and remand this case for further proceedings consistent with this opinion.

¶ 27. AFFIRMED AND REMANDED.

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

SMITH, Presiding Justice,

Dissenting:

¶ 28. In my view the County Court of Lee County abused its discretion when it granted Long leave to amend her complaint thus causing Wal-Mart to suffer “actual prejudice.” Miss. R. Civ. P. 15 cmt. See also TXG Intrastate Pipeline Co. v. Grossnickle, 716 So.2d 991, 1001 (Miss.1997); Hester v. Bandy, 627 So.2d 833, 839 (Miss.1993); William Iselin & Co. v. Delta Auction Real Estate Co., 433 So.2d 911, 913 (Miss.1983); Saxon v. Harvey, 190 So.2d 901 (Miss.1966); 6 Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure, Civil § 1481 (1990). Because of Long’s delay in amending, Wal-Mart was unable to seek federal removal under 28 U.S.C. § 1446(b). If Long’s original complaint had stated a claim greater than $75,000, Wal-Mart could have availed itself of its right to federal removal in this case based on diversity jurisdiction. However, since under 28 U.S.C. §§ 1332 & 1441(b), the damage claim must be in excess of $75,000, Wal-Mart could not remove this case to federal court when the original complaint was filed. Instead of amending her complaint before the one year deadline passed, she waited until 7 days after the deadline to increase her damages from $75,000 to $750,000.

¶ 29. The requested amendment, whether intentional or not, is a clear example of forum manipulation. Even if not an intentional attempt to manipulate the forum, the appearance of manipulation is too great based on the circumstances surrounding this case and the resulting extreme prejudice to Wal-Mart. Long appears to have manipulated her pleadings to initially file in state court and wait a year before increasing her claims for damages.

¶ 30. There are certain limits on permitting amendments. A failure of full justice on the merits can occur when leave to amend is not granted, however:

it is [also] true that good faith and a reasonable diligence are expected of parties in equity and of their solicitors, and that every party when he comes into court will in the first instance unfold his whole case or defense in accordance with the rules that govern the pleadings and proceedings therein.

Miss. R. Civ. P. 15 cmt. An application to amend should not be granted when the applicant does not meet the standard of due diligence. See Natural Mother v. Paternal Aunt, 583 So.2d 614, 617 (Miss.1991); William Iselin, 433 So.2d at 913. In this case, I believe the amendment was requested after an inexcusable and calculated delay.

¶ 31. In Natural Mother, this Court held that a plaintiff must exercise due diligence when filing a motion to amend the complaint. 583 So.2d at 617 (citing William Iselin & Co., 433 So.2d at 913); see also Grossnickle, 716 So.2d at 1011. The grant of an amendment can cause the adverse party to incur additional discovery, preparation and expense, particularly when that party would have little time to investigate and become acquainted with the new matter. Natural Mother, 583 So.2d at 617. See also Grossnickle, 716 So.2d at 1011.

¶ 32. In Red Enterprises, Inc. v. Peashooter, Inc., 455 So.2d 793 (Miss.1984) (quoting Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)), we agreed that the rules require the leave to be freely granted but only when it appears to the lower court that there is no unjust apparent or declared reason, “such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment, etc.” Id.

¶ 33. The majority points to De Aguilar v. Boeing Co., 47 F.3d 1404 (5th Cir.1995)(De Aguilar II), as Fifth Circuit precedent which would have allowed Wal-Mart to have filed in federal court despite Long’s originally alleged amount in controversy. In De Aguilar II, the Fifth Circuit announced that the defendant need only show by a preponderance of the evidence that the amount in controversy is greater than the jurisdictional amount. Id. at 1412. However, De Aguilar II also states that to some extent, the plaintiff is “still the master of his own claim.” Id. (citations omitted). The defendant must produce evidence that shows that the actual amount in controversy exceeds the jurisdictional amount provided the plaintiff has not shown that she is “legally certain” her recovery will not exceed the amount stated in the complaint. Id. De Aguilar II describes how a plaintiff might meet the legal certainty test by citing a state law which prohibits recovery in excess of the ad damnum clause. Id. However, without such a statute, “litigants who want to prevent removal must file a binding stipulation or affidavit with their complaints.” Id. (citing Gaunce v. St. Paul Mercury, 488 U.S. 950, 109 S.Ct. 384, 102 L.Ed.2d 372 (1988); In re Shell Oil Co., 970 F.2d 355, 356 (7th Cir.1992)). In effect, this ruling requires plaintiffs to show that they are bound irrevocably by their state pleadings. Id.

¶ 34. There is good reason for the majority’s overlooking or not citing subsequent cases. In my view, the following cited federal cases from Mississippi are more on point and controlling here. In Allen v. R & H Oil & Gas Co., 63 F.3d 1326 (5th Cir.1995), a Mississippi case, the court points out that removal cannot be based on conclusory allegations. Id. at 1335 (citing Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th Cir.1992)). The jurisdictional amount must be judged at the time of removal with post-removal affidavits allowed only if relevant to that period of time. Id. at 1335-36. If when looking at the complaint, the amount sought by the plaintiff is not “facially apparent,” the district court may determine that the amount in controversy exceeds the jurisdictional amount. Id.

¶ 35. Additionally, McLain v. American Intern. Recovery, Inc., 1 F.Supp.2d 628 (S.D.Miss.1998), is a solid example of the problem with the majority’s reasoning based on De Aguilar II. The McLain court stated that “until a defendant receives in writing, a statement that suggests that a plaintiff plans to seek more than $75,000 in damages, the case is not removable to federal court” Id. at 631. The problems exist because “[e]ven if a defendant asks a plaintiff to stipulate that the damages are below the jurisdictional amount, if the plaintiff refuses to stipulate, the case cannot be removed based solely on this refusal.” Id. Harris v. Benham Group, 2002 WL 31050999 (N.D.Miss.2002), also lends support to my departure from the majority. Unless the defendant can meet its burden, the plaintiff may avoid federal diversity jurisdiction by pleading, in good faith, state court damages below the required jurisdictional amount. Id. at 1.

¶ 36. In this case, Long’s original complaint specifically alleged an amount in controversy less than the jurisdictional amount. Whether or not made in good faith, Long’s complaint did not give the federal court jurisdiction. Long’s amendment should have been denied as unjust since Wal-Mart has suffered actual prejudice. Therefore, I would reverse county court’s order granting Long leave to amend and transferring this case to circuit court, and I would remand this ease for further proceedings in the County Court of Lee County.

¶ 37. For these reasons, I respectfully dissent.

COBB, J., JOINS THIS OPINION.

      . Controlling in the instant matter is Miss. Code Ann. § 9-9-21 (2002), which limits the jurisdiction of county courts to matters not exceeding $75,000 in value. Effective July 1, 2003, the Legislature extended such jurisdiction to include matters not exceeding $200,000 in value. H.B. 973, 2003 Miss. Laws ch. 429.

      . 28 U.S.C. § 1446(b) prohibits removal of a diversity action one year from the commencement of the action.

      . To invoke diversity of citizenship jurisdiction, the value of the matter in controversy, exclusive of interest and costs, must exceed $75,000. 28 U.S.C. § 1332.

      . Arguing that De Aguilar II is not controlling, the dissent cites Allen v. R & H Oil & Gas Co., 63 F.3d 1326 (5th Cir.1995) and Harris v. Benham Group, 2002 WL 31050999 (N.D.Miss.2002). We note that both cases cite De Aguilar II and that Allen applied the principles and held similarly.

      . (1) The jurisdiction of the county court shall be as follows: It shall have jurisdiction concurrent with the justice court in all matters, civil and criminal of which the justice court has jurisdiction; and it shall have jurisdiction concurrent with the circuit and chancery courts in all matters of law and equity wherein the amount of value of the thing in controversy shall not exceed, exclusive of costs and interest, the sum of Seventy-five Thousand Dollars ($75,000.00), and the jurisdiction of the county court shall not be affected by any setoff, counterclaim or cross-bill in such actions where the amount sought to be recovered in such setoff, counterclaim or cross-bill exceeds Seventy-five Thousand Dollars ($75,-000.00). Provided, however, the party filing such setoff, counterclaim or cross-bill which exceeds Seventy-five Thousand Dollars ($75,-000.00) shall give notice to the opposite party or parties as provided in Section 13-3-83, and on motion of all parties filed within twenty (20) days after the filing of such setoff, counterclaim or cross-bill, the county court shall transfer the case to the circuit or chancery court wherein the county court is situated and which would otherwise have jurisdiction.

        Miss.Code Ann. § 9-9-21(1) (2002).


source: Caselaw Access Project

author: SOUTHWICK, P.J., BRANTLEY, J.,

license: Public Domain

text:
    Gary W. MORRISON, Appellant, v. MISSISSIPPI DEPARTMENT OF HUMAN SERVICES, Appellee.
    No. 2001-CA-01088-COA.
    Court of Appeals of Mississippi.
    Nov. 12, 2002.
    Rehearing Denied March 11, 2003.

      Terry Lynn Wood, Corinth, attorney for appellant.
    Vickie R. Mitchell, Corinth, attorney for appellee.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Gary W. Morrison was found in contempt of a child support modification order by the Alcorn County Chancery Court. He appeals, arguing that he had not received proper notice of the hearing at which the modification occurred. We disagree and affirm as to the general validity of the judgment. However, we reverse and render that part of the judgment that required Morrison to pay the expenses necessary for his son to obtain a master’s degree.

FACTS

¶ 2. Annie R. Windom bore a son, Christopher, in 1974. An order of affiliation was entered in 1988. It stated that Gary Morrison admitted paternity and agreed to pay child support of twenty five dollars per week, increased to fifty dollars per week seven months later. Morrison also agreed that Christopher would not be considered emancipated until he obtained a four-year college degree. The parents agreed to share the educational expenses of a mutually agreed-upon secondary institution.

¶ 3. In December 1993, Windom filed a petition for contempt and modification of the 1988 support level. Christopher had begun attending college; Morrison allegedly failed to make some child support payments. A proper summons addressed to Morrison in Georgia was issued by the chancery court clerk on January 5, 1994, but the record does not contain a return of service.

¶ 4. The petition for contempt and modification was heard on January 19, 1994. Morrison did not attend nor did his counsel. The chancellor found that Morrison had been properly served, judged him in contempt, and awarded Windom $11,683.04 in support and expense arrearage. Child support was increased to $125 per week until Christopher obtained a master’s degree, provided that he remained enrolled full-time and maintained sufficient grades.

¶ 5. In February 1994, the Mississippi Department of Human Services filed a petition with its Georgia counterpart for entry of a Uniform Reciprocal Enforcement Support Act order. This order directed Morrison to send all future payments to DHS for distribution to Windom. In Sepr tember 1995, an order to withhold support from Morrison’s wages was issued by the chancellor and forwarded to Morrison’s Georgia employer. The employer never complied with the order.

¶ 6. Christopher left college in April 1999. In November 1999, a second order of withholding was issued to Morrison’s new employer. Morrison did not attend the hearing on the matter, nor was he represented by counsel. The order directed the new employer to withhold fifty dollars per week for payment of the arrear-age and forward those funds to DHS. A second petition for contempt was filed by DHS in March 2000. Morrison answered this petition, filing a motion to dismiss that claimed that he never received service of process on the 1994 petition for contempt and modification and that the statute of limitation on the collection of child support had expired.

¶ 7. A hearing on Morrison’s motion to dismiss was held in June 2000. Morris was represented by counsel. The chancellor denied the motion in July 2000, finding that Morrison had been properly served by mail in 1994. A hearing on the DHS contempt motion was held in May 2001. By order entered June 12, 2001, the chancellor found Morrison in willful contempt, awarded $46,693 in back support and expenses, and ordered Morrison jailed for ninety days. However, the sentence was to be held in abeyance upon Morrison’s payment of $1500. Morrison was also to pay $500 per month toward reducing the arrearage. Another order of withholding was issued to his employer.

¶ 8. Morrison has appealed.

DISCUSSION

a. Motion to dismiss the 2000 contempt petition.

¶ 9. Morrison assigns three specific points of error to the decision to deny his motion to dismiss the March 2000 petition for contempt. First, he asserts that the motion should have been granted because it was based upon his noneompliance with the 1994 order. Morrison argues that he was never served with notice of the 1994 contempt hearing and that the judgment is invalid. If that is so, he could not be held in contempt for failing to comply with it.

¶ 10. In child support cases, personal jurisdiction over a party is had by compliance with the provisions of Mississippi Rule of Civil Procedure 81(d)(5), which requires issuance of a summons commanding the defendant to appear at a particular time and date. The record indicates a Rule 81 summons was issued by the Alcorn County Chancery Court Clerk. No return of service nor notation on the docket of a return appears.

¶ 11. Morrison waited six years to attack the 1994 contempt and modification order. This constitutes a collateral attack on the former judgment.

In a direct attack on a decree it is, of course, competent to show that there was no service of summons, but in a collateral attack, as is here made, unless the record affirmatively shows to the contrary, all jurisdictional facts are conclusively presumed to have existed, including the proper service of process. It is not enough that the return of service is merely missing from the record— and that is all that is shown here.

Bray v. City of Meridian, 723 So.2d 1200, 1204 (Miss.Ct.App.1998), quoting Whitley v. Towle, 168 Miss. 418, 425-26, 141 So. 571, 572 (1932). In between its origin and our quoting, that same language was again employed by the Supreme Court. Case’s Will v. Case, 246 Miss. 750, 761, 150 So.2d 148, 152 (1963).

¶ 12. To set aside the six-year old judgment in 2000, Morrison needed to make an affirmative showing of failure to serve. Among such affirmative showings would be a returned envelope with the summons showing that it was undeliverable, or a return of service from a process server that the defendant could not be found or that the address was incorrect. An “affirmative” showing of failure to serve as required for a collateral attack does not mean simple silence in the record. That is not an “affirmative” — defined as “that which declares positively, ... the opposite of negative.” Black’s Law DICTIONARY 60 (6th ed.1990). If declaring affirmatively is the opposite of declaring negatively, then silence is in the precise middle. Nothing is declared at all. The sounds of silence are not the equivalents of declarations.

¶ 13. Not only is there no return of service in this record, there is also no docket entry demonstrating service. However, had there been a docket entry, no presumption of service would be needed. The Supreme Court long ago stated that a “record by a justice of the peace on his docket of the issuance and return of process is as much entitled to be accepted as true, as would a copy of the summons and the return on it, certified by him.” Hughston v. Cornish, 59 Miss. 372, 374 (1882). The point is not often contested, but that principle has been cited more recently. E.g., Walton v. Gregory Funeral Home, 170 Miss. 129, 154 So. 717, 719 (1934). The absence of the actual return, when the docket shows service was made, is no defect for which a presumption is required.

¶ 14. Therefore, the presumption of regularity applies on facts just as we face here, namely, a summons was issued but nothing is in the record regarding service or failure of service. Indeed, the reported decisions on which Bray relied appear to have the same facts as ours. In Towle, this was said: “the record herein fails to show that the summons to appellee, to appear before the chancellor at the time and place hereinabove mentioned, was served on appellee — the return of the service is missing from the record.” Whitley v. Towle, 141 So. at 572. We do not know what that could mean that would be more substantial than in the present case, unless there was a docket entry showing proper service and only the return itself was missing. The presence of a notation on the docket of a return would seem worth mentioning, but nothing in the opinion suggests such evidence existed.

¶ 15. Towle said that an earlier case had already “settled” that the absence of a summons from the record was of no consequence in a collateral attack when there had been a finding of service:

the judgment expressly adjudicates that it appeared to the court, which rendered it, that the defendant had been personally served with process, and that adjudication is conclusive in a collateral attack; for in such an attack, whether the court had the proper evidence before it on which to base an adjudication that the defendant had been served with process cannot be inquired into.

Federal Reserve Bank of St. Louis v. Wall, 138 Miss. 204, 103 So. 5, 6 (1924), cited in Whitley v. Towle, 141 So. at 572. In the present case, there is a 1994 finding of service, and in 2000 a renewed finding by the same judge that service was made. The service, quite simply, “is merely missing from the record.” Bray, 723 So.2d at 1204. The collateral attack fails.

¶ 16. It could be argued that the civil rules have changed caselaw that dates from 1932 and was reiterated in 1963. When this Court quoted this old case in 1998, perhaps we overlooked needed modernization. Collateral attacks are now brought as Rule 60 motions, though a judgment can also be attacked in related litigation. However, we find no basis on which to abandon this presumption of correctness. If a judgment that is void is permanently subject to being set aside, there is a need for rigid standards of proof of the basis for the overturning. The long-existing rule regarding presumptions is just as viable, indeed just as vital, after the adoption of the Civil Rules in 1982. Otherwise, as the passage of time from a judgment continues, it may become increasingly difficult to prove the validity of such matters as service. Regardless of the reasons that the record may not reflect what happened, affirmative proof that the needed event failed to happen is critical.

¶ 17. We note a recent case from this Court. Reichert v. Reichert, 807 So.2d 1282, 1288 (Miss.Ct.App.2002). Reichert may be inconsistent with Bray and more importantly with Bray’s, Supreme Court precedents. To the extent Reichert reaches a different conclusion than set out here, that difference is disavowed. The dissent finds Reichert distinguishable, and we merely note it today.

¶ 18. Morrison relies upon two cases to support his claim that despite authorities such as just described, actual return of service is necessary to establish personal jurisdiction. Caples v. Caples, 686 So.2d 1071 (Miss.1996); Powell v. Powell, 644 So.2d 269 (Miss.1994). In Caples, the defendant was served with a Rule 81 summons which failed to state the date and time to appear before the court. The summons was defective upon its face and therefore ineffective to exert personal jurisdiction over the defendant. Powell concerned a defendant served with summons under Rule 4 of the M.R.C.P. rather than Rule 81. Neither of these cases is particularly applicable to Mr. Morrison’s argument in this case.

¶ 19. Morrison also asserts that he should not be held in contempt of the 1994 modifications because the terms of the 1988 order of affiliation were not followed by Windom. The affiliation order provided that Christopher would attend a mutually agreed-upon secondary school, but he was never consulted over the choice of college the child would attend. The chancellor made no findings of fact upon this claim. In some situations, the Supreme Court has devised specific standards that must be applied in the exercise of discretion, such as for the initial determination of child support or for child custody. Gray v. Gray, 745 So.2d 234, 240 (Miss.1999); Powell v. Ayars, 792 So.2d 240, 244 (Miss.2001). Outside of those specific situations, we assume the resolution of disputed facts in favor of the decision. Bredemeier v. Jackson, 689 So.2d 770, 777-78 (Miss.1997).

¶20. There is significant evidence in the record to sustain that Morrison was aware of the school his son was attending. Morrison in his testimony admitted that he had contact with Christopher during his college years through attendance at family reunions and funerals. He was able to give Christopher his Georgia telephone number. Throughout this period of time, Morrison made no objection. Morrison’s lack of objection is consistent with approval.

b. Emancipation of Christopher

¶ 21. Morrison’s second point of error is that he should not have been required to pay child support beyond Christopher’s twenty-first birthday in December 1995. He also asserts that he should not be required to pay support and expenses through Christopher’s completion of a graduate degree.

¶ 22. For purposes of child support orders, the age of majority in this state is twenty-one. Nichols v. Tedder, 547 So.2d 766, 770 (Miss.1989). A court may not require support beyond the age of majority. Id. However, the parents by private agreement may create an enforceable obligation for support of a child beyond the age of majority. Id. Where a parent contracts to provide such support, we will require that he honor it. Crow v. Crow, 622 So.2d 1226, 1230 (Miss.1993).

¶ 23. Morrison contends that for such a provision to be enforceable, it must be the subject of a separate, signed contract, not merely included in the terms of the order of affiliation. Absent such a separate document, he states that he has no obligation beyond Christopher’s twenty-first birthday.

¶ 24. None of the authorities cited by Morrison support that a separate contract must exist in order to enforce an agreement for post-majority support. To the contrary, the Supreme Court contemplated that such agreements may take different written form by holding that an agreement incorporated into a divorce decree is as effectively binding as a separate contract. Nichols, 547 So.2d at 770.

¶ 25. While there was no separate contract, Morrison agreed to provide support for Christopher through the pursuit of a four-year college degree and voluntarily signed a written memorialization of that agreement in the form of the order of affiliation. We cannot find that the chancellor abused his discretion by enforcing it.

¶ 26. In addition, Morrison claims that he cannot be held in contempt on the ground that the applicable statute of limitation had expired prior to the filing of the petition for contempt in March 2000. He cites the general limitations statute. Miss. Code Ann. § 15-1-49 (Rev.1995).

¶ 27. The chancellor found the petition for contempt not barred by any statute of limitations because it was not the assertion of a new claim but rather part of an ongoing effort to collect on a judgment against Morrison. The court was holding that this was an action upon a domestic judgment, and that collecting past due child support and expenses would fall within the seven-year period of limitation for enforcement of judgments. Miss.Code Ann. § 15-1-43 (Rev.1995). That statute starts the calendar for suit with the “rendition” of the judgment. In a domestic case, obligations under the judgment arise periodically for years. Here, the child support obligation lasted almost the entirety of Christopher’s childhood and then beyond. The 1994 contempt and modification order had obligations that lasted until 1995 when Christopher became twenty one, and then continued until the college support agreement was fulfilled with his receipt of a four-year college degree or Christopher was no longer maintaining satisfactory progress. The chancellor determined that Morrison had no further obligation after Christopher quit college in 1999 without obtaining any degree. We find no error in continuing the obligation that long, and no objection to continuing no longer.

¶ 28. The individual to whom child support is owed is the child. Until the child reaches the age of majority at twenty one, there is no commencement of the statute of limitations for unpaid support. Here, the obligation lasted even longer. The Supreme Court has held that a claim “for back child support may be brought at any time within seven years of the child’s emancipation.” Varner v. Varner, 588 So.2d 428, 482 (Miss.1991). This claim was timely brought.

¶ 29. Finally, Morrison asserts that he should not be required to adhere to the 1994 modification of the affiliation order calling for continued support through the completion of a master’s degree by Christopher. DHS concedes that Morrison never agreed to such an extension and does not intend to seek enforcement of that provision. We repeat that the provision of support beyond age twenty one must be based on a voluntary agreement by the person who is to provide that support. Morrison never agreed to provide for a master’s degree. The chancellor declared Christopher emancipated in 1999. There is no further enforceable obligation against Morrison for college support.

¶ 30. THE JUDGMENT OF THE CHANCERY COURT OF ALCORN COUNTY OF WILLFUL CONTEMPT OF COURT IS AFFIRMED; THE JUDGMENT IS REVERSED AND RENDERED INSOFAR AS IT UPHELD THAT GARY W. MORRISON WAS VALIDLY MADE TO PROVIDE FOR THE EXPENSES NEEDED TO OBTAIN A MASTER’S DEGREE. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., THOMAS, IRVING, MYERS AND CHANDLER, JJ„ CONCUR. BRANTLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J., BRIDGES AND LEE, JJ.

BRANTLEY, J.,

dissenting:

¶ 31. I recognize the importance of the presumption of correctness of judgments and do not attempt to reverse such precedent, but in the present case, I respectfully disagree with the majority’s application of the presumption. The majority concluded that the record did not establish an affirmative showing to overcome the presumption that, in the 1994 judgment, the chancellor’s finding of service by mail upon Morrison was correct. The record was absent of any proof in any form that service in any manner was had upon Morrison in the 1994 judgment. The majority termed this absence of proof as silence and held that such silence could not be considered an affirmative showing to the contrary. Alternatively, I find that the evidence in the record establishes the affirmative showing needed to overcome such a presumption. The record not only fails to contain a document that confirms service by mail, but also demonstrates through the clerk’s docket sheet that a Rule 81 summons was only issued, never served. Therefore, the proof of the return of service is not contained within the record. The record wholly contradicts the finding that Morrison was served. How else could Morrison challenge a finding of service by mail other than declaring that notice was not received and demonstrating that the record does not contain any evidence of such act? Furthermore, the record demonstrates that he was not aware of the proceeding for years. Therefore, in this particular case, I am not ready to make the leap that just because a summons was issued, it was received. Notice is a fundamental right which must also be protected. Thus, I would render the 1994 order void, affirm in part the June 2001 order as to the other issues presented, and remand to the chancery court for a recalculation of the amount owed.

¶ 32. In addition, the majority summarily concluded that Reichert v. Reichert, 807 So.2d 1282 (Miss.Ct.App.2002), may be inconsistent with the presumption set forth in Bray v. City of Meridian, 723 So.2d 1200, 1204(¶ 27) (Miss.Ct.App.1998), and its Mississippi Supreme Court precedents. Again, I must disagree. In Reichert, we were consistent with Bray and followed the presumption of correctness set forth, but found that the record affirmatively contradicted the presumption.

¶ 33. In Reichert, the chancellor found jurisdiction prior to her judgment, but did not specify how. Reichert, 807 So.2d at 1287(¶ 18). Service of a Mississippi Rule of Civil Procedure 81(d)(5) summons upon Reichert was required for jurisdiction in the matter, Powell v. Powell, 644 So.2d 269, 274 (Miss.1994), but no Rule 81 summons, no return service of a Rule 81 summons, nor notation on the docket of a return service of a Rule 81 summons appears in the record. Reichert appealed claiming that the chancellor erred and that the judgment was void for a lack of jurisdiction because he was not served with the mandatory Rule 81 summons. We recognized the presumption of correctness as to all jurisdictional facts and looked to see if the record affirmatively contradicted the presumption that Reichert was properly served with a Rule 81 summons.

¶ 34. As stated, the record did not contain a Rule 81 summons or any proof of service of a Rule 81 summons. However, the record did contain a filed proof of service form, which in standard form language stated that a “summons and complaint” were served, but this form did not specify if the summons served was the required Rule 81 summons. Therefore, we looked to see if the mandatory Rule 81 summons was merely missing from the record and if the summons in the standard proof of service form was referring to a Rule 81 summons. Upon further review, the record also contained a petition for contempt, a notice of hearing, and a certificate of service, which were all filed on the same day. In addition, the papers in the record that were returned to the chancery court’s clerk’s office after service, included only copies of the notice of hearing and petition for contempt. Furthermore, the docket index only stated that a “notice and petition” were executed on Reichert. Thus, the record indicated that the summons referred to in the proof of service form was not a missing Rule 81 summons, but the notice of hearing.

¶ 35. Accordingly, we found that if service was had upon Reichert, the evidence in the record established that he was served with the notice of hearing and not the mandatory Rule 81 summons. Therefore, the evidence in the record affirmatively contradicted the presumption that the required Rule 81 summons existed and was served. We also held that the notice of hearing filed in the record did not comply with the mandatory Rule 81 summons. Consequently, we vacated the judgment because due process required proper notice and the requirements of due process were not met. Bryant v. Walters, 493 So.2d 983, 938 (Miss.1986).

KING, P.J., BRIDGES AND LEE, JJ„ JOIN THIS SEPARATE WRITTEN OPINION.


author: KING, P.J., BRIDGES, J.,

text:
    Larry Gene DALTON, Appellant, v. Linda Ann DALTON, Appellee.
    No. 2001-CA-00824-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2002.
    Rehearing Denied April 8, 2003.
    David Shoemake, Collins, attorney for appellant.
    Aeita M. Sullivan, Mendenhall, attorney for appellee.
    Before KING, P.J., IRVING, and BRANTLEY, JJ.
   KING, P.J.,

for the court.

¶ 1. Linda Ann Dalton and Larry Gene Dalton were granted an irreconcilable differences divorce by the Covington County Chancery Court on October 12, 2000. As required by Section 93-5-2(2) of the Mississippi Code Annotated (Rev.1994), the parties executed a property settlement agreement which was approved by the trial court and incorporated into the final decree of divorce.

¶2. Mr. Dalton alleges that the trial court improperly modified the property settlement agreement subsequent to the entry of the final decree.

FACTS

¶ 3. The Daltons were divorced on October 12, 2000. As a part of their divorce, a property settlement agreement was executed which allowed Mrs. Dalton to purchase several jointly owned real properties from Mr. Dalton.

¶ 4. The relevant portion of the agreement provided:

A. Real Property
That the parties own the hereinafter described land is [sic] situated in Cov-ington County, Mississippi, to-wit:
TRACT I: Commence at the Southeast Corner of the NW/4 of the SWVi of Section 27, Township 9 North, Range 17 West and Run North on and along the Eastern boundary line of said forty for a distance of 209 feet to and for the point of beginning; thence continue North on and along the Eastern boundary line of said forty for a distance of 1,111 feet to the Northeast corner of said forty; thence run West on and along the North boundary line of said forty for a distance of 209 feet; thence run South for a distance of 1,111 feet more or less, to a point 209 feet North of the South boundary line of said forty; thence run East 209 feet to the point of beginning; containing 5.3 acres, more or less and being in the NW/4 of the SW¡4, Section 27, Township 9 North, Range 17 West, Covington County, Mississippi.
TRACT II: Commence at the SE Corner of the NW/4 of the SW?4 of Section 27, Township 9 North, Range 17 West, and run West for a distance of 209 feet to and for the Point of Beginning; thence run North for a distance of 209 feet; thence run West for a distance of 263 feet; thence South for a distance of 319 feet, more or less, to the Northern boundary line of old Mississippi Highway No. 35; thence run in an Easterly direction on and along the Northern boundary line of old Mississippi Highway No, 35 to a point due South of the Point of Beginning; thence run North for a distance of approximately 100 feet to the Point of Beginning; containing 2 acres, more or less, and being situated in the NW/4 of SW]4 and SWJ4 of SW}4 of Section 27, Township 9 North, Range 17 West, Coving-ton County, Mississippi.
TRACT III: Beginning at the Southeast corner of the NW% of the SW]4, Section 27, Township 9 North, Range 17 West, thence run North 209 feet; thence run West 209 feet; thence run South 249 feet to the North boundary of a local paved road; thence run North 84 degrees, 32 minutes East 209.95 feet on and along the North boundary of the local road; thence run North 20 feet to the point of beginning, containing 1.14 acres more or less, and being in the West/6 of the SW]4 of Section 27, Township 9 North, Range 17 West, Covington County.
TRACT IV: Lot 19, Block 48, Sherwood Forest Part # 5, a subdivision according to a map or plat on record in the office of the Chancery Clerk of Rankin County, Mississippi.
1. That the hereinabove described land shall be appraised and that Arnold Mooney of Collins, Mississippi, shall appraise said property and the parties shall each pay Arnold Mooney one-half of the costs of the appraisals. That Wife shall have the right to purchase Husband’s interest in Tracts I, III, and IV, for one-half of the equity therein or one-half of the appraised value thereof less all sums owed thereon. That Wife shall have sixty days from the date of said appraisal to purchase Husband’s interest in said property and if within said sixty days Wife does not purchase Husband’s interest in said property, then Husband shall have sixty days from said date thereof within which to purchase Wife’s interest in said property. If Husband does not purchase Wife’s interest in said property within said 60 day period then said property shall be sold and the proceeds divided equally between the parties, subject to the lien thereon.
2. That Husband shall have the right to purchase Wife’s interest in Tract II of the hereinabove described land for one-half of the appraised value thereof less all sums owed thereon and Husband shall have sixty days from the date of said appraisal within which to purchase Wife’s interest in Tract II of the herein-above described land. That if Husband does not purchase Wife’s interest in said Tract II within sixty days from date of said appraisal then Wife shall have the right to purchase Husband’s interest in said land within sixty days thereof. If Wife does not purchase Husband’s interest in said land during said period that the land (Tract II) shall be sold and the proceeds divided equally between the parties.
3.That upon tender of a check for one-half of the appraised value thereof less the liens thereon to the other person, (subject to the medical bills as set forth in VI. A. 1.) that said person selling said property shall execute a Quitclaim Deed and convey to the other person, his or her undivided interest therein.

Pursuant to that agreement, Mrs. Dalton was given the option to purchase Mr. Dalton’s interest in tracts I, III, and IV, for one-half of the net equity therein or one-half of the appraised value less all sums owed. She was required to complete the purchase within sixty days from the date of the appraisal. If she did not do so, Mr. Dalton had sixty days from the expiration of that period, to purchase Mrs. Dalton’s interest in the property. If Mr. Dalton failed to complete the purchase within the required time, the property was to be sold and the proceeds divided equally between the parties.

¶ 5. Mrs. Dalton secured a real estate loan to purchase Mr. Dalton’s interest. The loan was slated for closing on November 27, 2000. At closing, the parties disagreed on what deductions were to be made from the loan proceeds as obligations of Mr. Dalton. As a result, the parties were unable to complete the purchase as required.

¶ 6. In December 2000, both parties filed contempt petitions alleging a failure to abide by the property settlement agreement. The chancellor heard testimony on the contempt motions on January 19, 2001, and rendered a bench opinion at the conclusion of the hearing.

¶ 7. The chancellor declined to hold either party in contempt, but felt it appropriate to clarify what deductions were to be taken from the sale proceeds to Mr. Dalton under the decree. This bench ruling was affirmed in an order dated March 8, 2001, and an order denying rehearing dated May 14, 2001.

¶ 8. The chancellor determined that Mrs. Dalton had attempted in good faith to complete the purchase, and allowed her an additional fourteen days from January 19, 2001, within which to complete it.

ISSUE AND ANALYSIS

Whether the chancellor erred by rewriting the parties’ property settlement agreement which was a valid unambiguous contract.

¶ 9. Mr. Dalton contends that in allowing Mrs. Dalton an additional fourteen days to complete the purchase, the chancellor rewrote the property settlement agreement, and thus committed error. He suggests that, contrary to the chancellor’s finding, Mrs. Dalton did not act in good faith in seeking to deduct various items from the sale proceeds due to Mr. Dalton.

¶ 10. An appellate court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion or was manifestly wrong, or the judgment was clearly erroneous, or an erroneous legal standard was applied. Dilling v. Dilling, 734 So.2d 327 (¶ 22) (Miss.Ct.App.1999).

¶ 11. In his ruling, the chancellor found that both parties had a good faith misunderstanding of the terms of the agreement and that Mrs. Dalton had attempted to close the loan, “even though she wrongfully felt that there ought to be certain deductions.”

¶ 12. The supreme court has stated that when the parties have reached agreement and the chancery court has approved it, we ought to enforce it and take as dim a view of efforts to modify it, as we ordinarily do when persons seek relief from their improvident contracts. Bell v. Bell, 572 So.2d 841, 844 (Miss.1990). However, where ambiguities may be found, the agreement should be construed much as is done in the case of a contract, with the court seeking to gather the intent of the parties and render its clauses harmonious in the light of that intent. Switzer v. Switzer, 460 So.2d 843, 846 (Miss.1984) (citations omitted).

¶ 13. The record supports the chancellor’s finding that a good faith misunderstanding existed between the parties as to the effect of the property settlement agreement. It was therefore appropriate for the chancellor to resolve those ambiguities, and give the parties an opportunity to effect the intended purpose of the contract. The chancellor did not abuse his discretion, and this matter is affirmed.

¶ 14. THE JUDGMENT OF THE CHANCERY COURT OF COVINGTON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., SOUTHWICK, P.J., LEE, IRVING, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR. BRIDGES, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY THOMAS, J.

BRIDGES, J.,

dissenting:

¶ 15. I dissent because the portion of the Daltons’s agreement on property division that contains the options to purchase property does not properly form an option contract. A valid contract contains these elements: two or more parties; consideration; an agreement that is sufficiently definite; parties with the legal capacity to contract; mutual assent; and no legal prohibition barring the contract’s formation. Hunt v. Coker, 741 So.2d 1011, 1015 (¶ 9) (Miss.Ct.App.1999) (emphasis added). Of particular concern is the following portion of the agreement, applying to Tracts I, III, and IV:

That Wife shall have sixty days from the date of said appraisal to purchase Husband’s interest in said property and if within said sixty days Wife does not purchase Husband’s interest in said property, then Husband shall have sixty days from said date thereof within which to purchase Wife’s interest in said property.

¶ 16. It is unclear when the Husband’s sixty day option shall begin to run; obviously, it cannot run concurrently with the Wife’s option, although by the words of the agreement that is possible; but it may very possibly run either from the date when the Wife refuses to exercise her option, or it may run from the end of the sixty day period in which the Wife may exercise her option right. These terms are repeated almost verbatim for the property that Mr. Dalton had option rights to purchase, described as Tract II. The terms on their face are “inadequate to expressly delineate the rights of the pu[r]chaser or the obligations of the buyer.” Etheridge v. Ramzy, 276 So.2d 451, 454-455 (Miss.1973).

¶ 17. As terms of an option, they lack crucial information: they do not describe the method of exercising the party’s rights under the option, nor do they describe when the exercise of the option is to take place. Generally, when the time for performance of an option is specified it is binding, although courts have permitted options to run beyond their express time for reasonableness. See R.A. Shapiro, Annotation, Validity of Option to Purchase Realty as Affected by Indefiniteness of Term Provided For Exercise, 31 A.L.R.3d 522 (1970); 17 A Am.Jur.2d Contracts § 49 (1991). Apparently, the parties wished the options to operate automatically; that is, that upon the sixty day period running for Mrs. Dalton, the sixty day period would begin to run for Mr. Dalton. But under the terms of the contract, this is by no means the only possible interpretation.

¶ 18. Combined with the very indigestible wordiness of the options, there is the curious behavior of the Daltons at the loan closing. They did not meet face to face; Mr. Dalton arrived at the closing on time, and Mrs. Dalton did not arrive until after he had left. Mr. Dalton did not know the value of the appraisal; Mrs. Dalton knew the value of the appraisal, and then had the loan officer deduct certain costs from the appraised value that was due Mr. Dalton. Assuming that the terms of the contract were valid and binding, when Mrs. Dalton changed the amount of money she was to pay Mr. Dalton from the agreed upon value in the contract (that is, the appraised value) she rejected the offered contract, as a counter-offer is deemed a rejection of the offer. Duke v. Whatley, 580 So.2d 1267, 1271-72 (Miss.1991). Most likely, this constitutes an event of breach, terminating the option.

¶ 19. But even were this contract valid on its face, there remains the fact that the chancellor has crafted a new contract out of whole cloth. This was a manifest error, even if the contract was partly invalid, or could not be performed on its terms. See East v. East, 493 So.2d 927, 931-32 (Miss.1986) (forbidding modification of agreements incorporated in a divorce decree); Ivison v. Ivison, 762 So.2d 329, 335 (¶¶ 16-17) (Miss.2000) (requiring the court to enforce the terms of an agreement so incorporated unless the terms are ambiguous). There is no allowance made for courts to forge new contracts when the existing contract is partly invalid.

¶ 20. Both parties failed to perform the contract; Mr. Dalton was to sign the quitclaim deeds when he received the correct tender, by the terms of the contract. Mrs. Dalton tried to subvert the terms of the agreement by deducting additional costs from the agreed purchase price within the agreement. Both of these failures of performance occurred at the apparent eleventh hour of Mrs. Dalton’s option rights.

¶ 21. A contract may by its nature and terms be severable, but by the intentions of the parties rendered entire; or a contract entire may be rendered divisible by the acts or agreement of the parties. Mariana v. Hennington, 229 Miss. 212, 230-31, 90 So.2d 356, 364 (1956). As the parties are disputing only the portion of the agreement that deals with the real property, we may sever that portion of the agreement from that portion dealing with the personalty of the parties. Consequently, although the portion of the agreement that establishes option rights for the parties is invalid, it would not be necessary to invalidate the whole contract. Indeed, it would be appropriate to further sever the portion of the agreement that establishes the option contracts from that which allows the court to order a sale of the real property and a division of the proceeds should the parties fail to properly exercise their option rights.

¶22. The contract states quite clearly that failure by either party to exercise their option rights will result in a sale of all disputed properties, with the proceeds to be divided equally between the parties. The terms of the agreement that allow the formation of an option contract are insufficiently specific for the option contracts to form. The appropriate action for this Court would be to reverse and render, ordering a sale of the disputed real property and the division of the proceeds, according to the valid terms of the agreement.

THOMAS, J., JOINS THIS SEPARATE OPINION.

      . Mrs. Dalton claimed the proceeds to Mr. Dalton should be reduced by the following deductions:
      one-half equity $ 29,466.00
      ¡4 lot value $ 400.00
      less value 2 acres $ 2,200.00
      less'/4 closing costs $ 1,113.00
      less ’4 tax & escrow refund to Lariy $ 500.00
      less quilt $ 2,000.00
      less 2 house payments and late fees $ 625.00
      Iess'/ii appraisal $ 325.00

        less medical bills $ 800.00
      less damage to house $ 1,000.00
      less personal items missing from house $ 1,000.00

      . Judge Buffington resolved the issue of deductions from sale proceeds by saying: I'm going to allow Ms. Dalton to tender to Mr. Dalton the sum of $26,439.46. Coming to this figure, one-half of the equity is $30,466.47. He was also purchasing a lot which was $400. That’s $30,866.47 that he would be entitled to. I’m deducting the $2200 which was half the value on the two acres that he’s getting that he will get at this date. I'm deducting the $625 for the payment on the house. He was living in the house at the time. And therefore that even though it may not have been a proper motion at that time, it's proper now so I'm going to make it that way so we can cure all of this. The appraisal fee was $300. It would [sic] $600 according to what was tendered instead of the 650 as this shows. So I’m going to allow him a deduction of $300 to be paid to Mr. Mooney. And the decree does say that the $800 — and that is one thing that I noticed on Mr. Shoemake’s demand that she tender on the [sic] closing the full amount without any deductions. The Court decree is quite explicit that it does allow an $800 deduction. So therefore that $800 will be deducted from the amount that she would have owed. And then there was the tax and the escrow refund. So therefore based on my figures, there was a total deduction of $4,452 — excuse me. $4,477. That is to be deducted. So that would have been — leaves a balance of $26,439.46 that would be due.

      Of course, as stated and I think as agreed to, she's entitled to one-half of the CDs a[sic] set forth, plus the interest from the date that the CDs were purchased.

      The water bill and the electric bill, she testified to that... .So upon her tendering to Mr. Shoemake the bills showing what those amounts were prior to her moving in, ... he’ll pay those two amounts....


author:
MYERS, J.,
      SOUTHWICK, P.J.,

text:
    Billy Wayne FRITH and Wanda Frith as Parents and Natural Guardians of Joshua Brent Frith, a Minor, Appellants, v. BIC CORPORATION, Appellee.
    No. 2000-CA-01124-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2002.
    Rehearing Denied Feb. 18, 2003.
    Dana J. Swan, Clarksdale, attorney for appellants.

      James D. Holland, Ridgeland, D. Collier Graham Jr., Jackson, attorneys for appel-lee.
   MODIFIED OPINION ON MOTION FOR REHEARING

MYERS, J.,

for the court.

¶ 1. The Appellants’ motion for rehearing is granted. The original opinion issued by this Court is withdrawn and this opinion is substituted therefor.

¶ 2. Ten year old Joshua Frith was severely burned when he found a disposable cigarette lighter manufactured by BIC Corporation in his back yard and attempted to ignite it while standing near a gasoline can. Joshua’s parents, Billy Wayne and Wanda Frith, filed suit in the Circuit Court of Scott County against BIC Corporation on Joshua’s behalf asserting a products liability claim. BIC Corporation moved for summary judgment asserting that the Friths’s state law claims were preempted by federal law. The trial court granted BIC Corporation’s motions for summary judgment finding that the Friths’s state law claims were preempted by federal law. Aggrieved by this decision, the Friths appealed asserting that their claims were not preempted by federal law.

LEGAL ANALYSIS WHETHER THE FRITHS’S STATE LAW CLAIMS ARE PREEMPTED BY FEDERAL LAW.

¶ 8. The sole issue raised by the Friths in this appeal is whether their claims based on state common law are preempted by federal law. Preemption can occur in one of three ways: “(1) where Congress explicitly preempts state law, (2) where preemption is implied because Congress has occupied the entire field, or (3) where preemption is implied because there is an actual conflict between federal and state law.” Cooper v. General Motors Corp., 702 So.2d 428, 434(¶ 16) (Miss.1997). The federal standard is a minimum standard and any state may establish or continue a safety requirement so long as that safety requirement provides a higher degree of protection than the federal standard. 15 U.S.C.A. § 2075(b).

¶ 4. Congress did not explicitly preempt state law or occupy the entire field on lighter safety regulations. The only possibility that remains is whether this area of law is impliedly preempted due to a conflict of state and federal law. The applicable federal safety standard is that lighter companies are to implement safety devices on the lighters so that they cannot be successfully used by children five years of age. 16 C.F.R. § 1210.1. The standard proposed by the Friths is a higher standard than that established by federal law. Based on the dictates of 15 U.S.C.A. § 2075(b), state and federal law would not conflict as the state law would provide more protection to the product consumer. The trial court’s grant of summary judgment in favor of BIC Corporation finding that federal law preempted state law is reversed and remanded for new trial.

¶ 5. THE JUDGMENT OF THE CIRCUIT COURT OF SCOTT COUNTY IS REVERSED AND REMANDED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLEE.

BRIDGES, THOMAS, LEE, CHANDLER AND BRANTLEY, JJ., CONCUR. SOUTHWICK, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MCMILLIN, C.J. KING, P.J., DISSENTS WITHOUT WRITTEN OPINION. IRVING, J., NOT PARTICIPATING.

SOUTHWICK, P.J.,

DISSENTING:

¶ 6. I respectfully dissent from the granting of rehearing and the reversal of our initial decision. The majority has undermined the interests protected by the federal standard on cigarette lighters, the same interests that we earlier identified. I would deny rehearing and affirm.

¶ 7. Cigarette lighters are intended to set something on fire. Necessarily, then, the lighter will produce fire or sparks. The federal government established standards to attempt to protect very young children from hurting themselves with lighters. The standards are intended to make it as difficult as feasible for a child five years old or younger to use a lighter. There is no question that this lighter met that standard. To make a lighter such that it will not light at all, or in essence, to ban cigarette fighters, was not attempted. I would expect this Court would agree that state tort law also cannot in effect ban them by finding the manufacturer will be liable simply because a lighter fights. The federal safety standard drew a fine between those who can usefully be protected and those who if protected would require so complicated a fighter as to make it unusable for anyone. This suit is seeking to shift that fine. We do not have the authority.

¶ 8. The majority on rehearing finds that BIC’s meeting the federal standard to protect five-year-old’s is insufficient to apply the doctrine of federal preemption. A state, the majority says, may through its civil justice system impose a higher standard without the potential of that higher standard’s interfering with the effectiveness of the federal standard.

¶ 9. I cannot agree. Plaintiffs seek to hold BIC to a requirement of producing a fighter that a ten-year-old cannot use. The federal government has sought to require the manufacture of a fighter that a five year old child cannot use. There is only one fighter for whomever might find it. There are not fighters that might be found only by two year old children, and a different fighter that is only to be found by five-year-old, and a still more sophisticated fighter for a ten year old child who is scavenging for interesting items on the ground during play, and by stages finally a fighter for adults who have the right to fight a cigarette. Consequently, as the federal government identified the five-year-old as the target maturity for which feasible protections could be built into a fighter, they necessarily rejected a requirement of making lighters still more sophisticated such that older children could not use them. At some stage, a fighter is so difficult to use that no one will buy one.

¶ 10. As those adults who cannot program the sophisticated equipment of the modern world are known to discover, it is often the child who seems more adept at using technology. We need take no improper judicial notice of anything but just apply common sense in order to conclude that at some point in the development of standards of difficulty for the use of a potentially dangerous item, the use could become more difficult for an adult than for the targeted-age child.

¶ 11. What is evident from the regulatory record is that use of fighters is considered less dangerous than other ways to light cigarettes, such as with matches. By not requiring fighters to be inoperable for a ten-year-old, the federal government was keeping them reasonably operable for adults. I believe that the majority is incorrect that the standard that the plaintiffs seek to impose in court would not conflict with the federal standard. If the plaintiffs’ desired standard becomes standard, then by definition fighters become harder to use. As there is only one lighter standard for everyone, those who could not sue because a lighter actually lit, namely adults, would also tend not to use increasingly complicated lighters at all. Matches for lighting cigarettes then would become more prevalent and more likely to be found by two year or five year or ten year old children, which undermines the purpose of the federal standard for lighters in the first place.

¶ 12. I believe that our initial opinion was correct. I would affirm.

McMILLIN, C.J., JOINS THIS SEPARATE WRITTEN OPINION.


author: BRANTLEY, J.,

text:
    Bennie C. SATCHER a/k/a Benny C. Satcher, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-KA-01296-COA.
    Court of Appeals of Mississippi.
    Dec. 10, 2002.
    Rehearing Denied Jan. 28, 2003.
    Certiorari Denied Aug. 14, 2003.

      Leslie D. Roussell, Laurel, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, P.J., IRVING and BRANTLEY, JJ.
   BRANTLEY, J.,

for the court.

¶ 1. Bennie C. Satcher was convicted by the Circuit Court of Jones County of aggravated assault. Aggrieved, Satcher appeals, arguing that the trial judge erred in making prejudicial comments upon certain evidence in the presence of the jury, in denying several jury instructions and in denying his motion for a directed verdict and request for peremptory instruction. Additionally, Satcher argues that the effect of the above cumulative errors denied him a fair trial. Finding no error, we affirm.

FACTS

¶ 2. On May 3, 1997, Alfonda Smith was driving to Laurel and had stopped at a gas station. While at the station, he saw Bennie Satcher driving a car that Smith had obtained for his former girlfriend and mother of his child to drive for the purpose of caring for their child who suffered from sickle cell anemia. Smith followed Satcher and flashed his lights at him in order to make Satcher stop so that Smith could ask him to have the mother contact him and to find out why he was driving the car. Satcher stopped the car and they talked. Smith then proceeded to walk back to his car when he heard a shot that had hit the windshield of his car. A second shot hit his right leg, but he continued to walk back towards his car. However, a third shot hit his left leg, at which time he fell to the ground. Smith was taken to a local hospital for treatment of his wounds.

¶ 3. Satcher turned himself in to the police. During the trial Satcher testified to a different version of events than the above events described by Smith. Satcher testified that after he stopped his automobile, Smith ran towards Satcher’s car with a gun in his hand shouting obscenities and stating that he was going to kill Satcher. Satcher tried to leave, but his car would not move. He then grabbed a rifle from the back seat of the his car and began firing it at Smith. Satcher stated that he was in fear of his life.

¶4. Smith and Satcher both testified that Smith had stopped him on a previous occasion when Satcher was driving the same car at which time Smith had asked Satcher not to drive the car anymore. A coworker of Satcher’s testified that he had seen Smith follow Satcher on several occasions.

¶ 5. John Musgrove, who witnessed the shooting, testified that Smith was walking towards his car with his back to Satcher when Musgrove heard a shot and saw Smith fall to the ground. Musgrove saw Satcher with a gun, but did not see Smith with a gun. Additionally, no gun was found at the scene or in Smith’s car when it was searched and inventoried. However, Satcher turned over the weapon used to shoot Smith when Satcher turned himself into the police. The jury found Satcher guilty of aggravated assault. Aggrieved, Satcher perfected this appeal.

DISCUSSION OF THE ISSUES

I. WHETHER THE TRIAL JUDGE ERRED BY MAKING PREJUDICIAL COMMENTS ABOUT EVIDENCE PRESENTED DURING TRIAL IN THE PRESENCE OF THE JURY.

¶ 6. Satcher argues that the trial judge erred in making comments as to the relevancy and materiality of evidence. During cross-examination of Smith, defense counsel continuously questioned him about the information in the statement given to police by Smith and Smith’s direct testimony as to the events that occurred the day he was shot. Defense counsel continued to ask Smith to point out where in his statement he had told the police some of the information he testified to during direct examination.

¶ 7. However, the judge finally asked if the testimony was in the statement and when he found that it was not, he asked counsel to move along in his questioning. At that time the prosecution asked to have the statement entered into evidence. Although the judge allowed the statement to be marked for identification purposes only, he also stated that anything that was not part of the statement was immaterial and irrelevant. After defense counsel tried to explain why he believed it to be relevant, counsel completed his cross-examination. Then the State examined the witness on redirect and afterwards the witness was excused and the prosecution rested its case. In chambers, defense counsel then asked for a curative statement to explain the judge’s comments about the statement, which the judge denied.

¶ 8. In ruling on the admissibility of evidence, a trial judge has to determine whether the proffered evidence is relevant and material to the issues being tried. He should do so, however, without appearing to favor one side or the other.

¶ 9. Here, the defense attorney was attempting to cross-examine the prosecuting witness about what he perceived as discrepancies between the witness’s pretrial, recorded statement to the police and the witness’s testimony on direct examination during the trial. The trial judge grew tired of what he perceived as needless and repetitive questions by defense counsel over these discrepancies. As a result of these diverse perceptions, the following exchange occurred:

THE COURT: Is that in there, Mr. Buckley?
MR. BUCKLEY: Huh?
THE COURT: Is that in the statement?
MR. BUCKLEY: Not in the one that’s provided to me.
THE COURT: Then let’s go on. If it’s not in the statement, let’s go on.
MR. STRICKLIN: Your Honor, we’d like to offer into evidence this entire statement. It’s been picked apart and out of context so much, I think the whole thing ought to be made—
THE COURT: I don’t know about that. I’m just tired of asking questions about things that’s not in the statement. If it’s not in the statement and it’s not part of the statement, it’s immaterial. It’s irrelevant.
MR. BUCKLEY: No, sir, Your Honor, it’s not irrelevant. It’s not immaterial. Because I have the right to cross-examine this witness about what he said on the witness stand on direct examination. And that’s what I’m doing.

¶ 10. The trial judge’s comment was an incorrect statement of the law and should not have been made in the presence of the jury. We cannot agree that information, omitted from a pretrial statement, is necessarily irrelevant to what a witness testifies to at trial. Its relevance depends on the nature of the omitted information and the circumstances giving rise to its omission.

¶ 11. The point of disagreement between the prosecuting witness and defense counsel centered around the witness’s trial testimony on direct examination that he had followed Satcher for a short distance, blinked his lights to stop Satcher, and that Satcher shot him after they had talked, while the witness was walking back to the witness’s car. This information was not detailed in the pretrial statement given by the prosecuting witness. However, our review of the witness’s statement reveals no material variance between the witness’s trial testimony and his pretrial statement. During the interview with the police department, the witness stated that he stopped Satcher, that during this encounter Satcher was laughing and talking and that after their discussion, Satcher pulled off. What the witness said at trial, that was different from what he said in the statement, was that after Satcher pulled off, the witness started walking back to the witness’s car and was suddenly shot by Satcher. During the pretrial interview, the witness was never asked precisely at what point he was shot.

¶ 12. While it would have been better for the trial judge to have withheld his comment, we do not find that the comment, and the refusal of the trial judge to give a curative instruction, constitute reversible error. Despite the conflicting factual versions given by Satcher and the prosecuting witness as to what happened at the time of the shooting, there was ample evidence of Satcher’s guilt. Moreover, in light of the witness’s trial testimony that he chased Satcher down and stopped him, we cannot see how Satcher was prejudiced by being precluded from cross-examining the witness on the witness’s failure to include this information in his pretrial statement. The assertion that prejudice occurred would be more plausible had the witness included the event in the pretrial statement but denied at trial that the event happened. This issue lacks merit.

II. WHETHER THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON SELF DEFENSE.

¶ 13. Satcher argues that the trial court erred in denying his instructions on self-defense. However, the trial court did grant the defense a general self-defense instruction which stated that if the jury found that Satcher shot Smith while Satcher was in imminent danger of serious bodily harm or death at the hands of Smith and that he did so in direct response to such imminent danger then the jury must find him not guilty. However, Satcher also had three other proposed instructions dealing with the law on self-defense.

¶ 14. We begin our analysis with the well settled law that an accused has an “absolute right ... to have every lawful defense he asserts, even though based upon meager evidence and highly unlikely, to be submitted as a factual issue to be determined by the jury under proper instruction of the court.” McMillan v. City of Jackson, 701 So.2d 1105(¶ 13) (Miss.1997) (quoting O’Bryant v. State, 530 So.2d 129, 133 (Miss.1988)). However, we do not review the jury instructions in a vacuum. “The instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Hickombottom v. State, 409 So.2d 1337, 1339 (Miss.1982) (citations omitted).

¶ 15. The right to “stand your ground” instruction requested by the defense was refused. The Mississippi Supreme Court has held that a person is entitled to “stand his ground and resist force by force,” but the person must “tak[e] care that his resistance be not disproportionate to the attack.” Long v. State, 52 Miss. 23, 34 (1876). However, there must still be evidence to support this instruction. Skinner v. State, 751 So.2d 1060, 1074 (¶ 49) (Miss.Ct.App.1999). In Skinner, the Court found that the evidence did not support the instruction because Skinner fired nine times at the victim who was behind a closed door. Id. Even though Skinner and a witness testified that the victim had a knife, Skinner’s actions were “disproportionate to the attack” and did not warrant an instruction on the right to stand his ground and not retreat. Id.

¶ 16. Here, the evidence also fails to support such an instruction. Although Satcher testified that Smith had run up to Satcher’s car threatening to kill him with a gun, the witness’s testimony contradicted Satcher’s version. The witness, Musgrove, testified that he saw Smith walking back to his own car when Satcher shot Smith in the back of the legs. In addition, no weapon was seen on Smith’s person, in his car or at the scene of the shooting. From the evidence presented, even if Smith was the initial aggressor, Smith had walked away and the initial confrontation was over when Satcher fired a weapon at Smith. Satcher’s actions were disproportionate to Smith’s, and Satcher had become the aggressor. Therefore, Satcher was not entitled to an instruction on the right to stand his ground and not retreat.

¶ 17. Satcher also claims that the trial court erred in refusing to grant an instruction which instructed the jury on the prosecution’s burden to disprove a claim of self-defense. Although, the instruction was a correct statement of law, the Mississippi Supreme Court has recently held that as long as the jury is adequately instructed on self-defense and on the prosecution’s burden to prove the elements of the crime charged, then no other instructions are required because the jury has been instructed on self-defense and that if the State has failed to prove any elements of the crime then they must acquit. Williams v. State, 803 So.2d 1159, 1162 (¶ 11) (Miss.2001) Here, the jury was given a general self-defense instruction and instructed that if they found Satcher acted in self-defense then they must acquit. In addition, the jury was instructed that the prosecution has the burden to prove each element of aggravated assault. Therefore, the trial court did not err in denying this instruction.

¶ 18. A third self-defense instruction which was basically the same as the instruction granted was also denied. The court is not required to grant instructions that are redundant to others granted. Laney v. State, 486 So .2d 1242, 1246 (Miss.1986). Accordingly, the trial court did not err in denying the third instruction.

III. WHETHER THE TRIAL COURT ERRED IN DENYING THE MOTION FOR A DIRECTED VERDICT.

¶ 19. Satcher argues that the trial court erred in failing to grant his motion for a directed verdict. He also claims that the evidence was insufficient to support the verdict. However, the State argues that the weight and sufficiency of the evidence did support the guilty verdict.

¶ 20. The standard of review for a denial of a directed verdict and peremptory instruction is well settled. On appeal, the court must accept as true all evidence which supports the verdict in addition to viewing the evidence in the light most favorable to the State. Coleman v. State, 697 So.2d 777, 787 (Miss.1997). This Court will reverse only where reasonable and fair-minded jurors could only find the accused not guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987). In addition, it is the jury’s duty to determine the weight and credibility of the evidence. Gleeton v. State, 716 So.2d 1083, 1087 (¶ 14) (Miss.1998).

¶ 21. Here, the evidence supports the verdict. Smith testified that he was walking away from Satcher’s car, returning to his car when he was shot. Satcher contends that Smith’s story was implausible. However, Musgrove testified that he saw Smith walking away from Satcher’s car when Smith fell to the ground. In addition, Satcher was seen with a gun, but Smith was not seen with a weapon, nor was one found at the scene or in his car. Additionally, Smith was shot in the back of the legs indicating that, just as he and Musgrove stated, he was walking away from Satcher. The trial court did not err in failing to grant a directed verdict nor in denying the request for a peremptory instruction because when reviewing the evidence in a light most favorable to the verdict, the evidence was sufficient to support the verdict.

IV. WHETHER THE CUMULATIVE EFFECT OF THE ERRORS COMMITTED AT TRIAL ARE CAUSE FOR REVERSAL.

¶ 22. Satcher claims that the cumulative effect of the errors asserted above constitute reversible error because he was denied a fair trial. The Mississippi Supreme Court has held that a conviction may be reversed “based upon the cumulative effect of errors that independently would not require reversal.” Genry v. State, 735 So.2d 186(¶ 73) (Miss.1999); see also Jenkins v. State, 607 So.2d 1171, 1183-84 (Miss.1992); Hansen v. State, 592 So.2d 114, 153 (Miss.1991). However, the Court has also held that where “there was no reversible error in any part, so there is no reversible error to the whole.” McFee v. State, 511 So.2d 130, 136 (Miss.1987). This Court has reviewed each of Satcher’s assignments of error and has found that each lacked merit. Accordingly, Satcher was not denied a fair trial.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF THE SECOND JUDICIAL DISTRICT OF JONES COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS WITH TEN YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, TEN YEARS SUSPENDED AND FIVE YEARS OF SUPERVISED PROBATION AND TO PAY RESTITUTION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: IRVING, J.,

text:
    In the Interest of J.M.R., A Minor.
    No. 2001-CA-00841-COA.
    Court of Appeals of Mississippi.
    Dec. 10, 2002.

      Stephen Travis Bailey, Tupelo, attorney for appellant.
    Charles R. Brett, William C. Bristow, Tupelo, attorneys for appellee.
    Before KING, P.J., IRVING, and BRANTLEY, JJ.
   IRVING, J.,

for the Court.

¶ 1. This case comes before this Court on appeal from the Youth Court of Lee County. It is brought by J.M.R., a minor, who was adjudged delinquent within the meaning of the Mississippi Youth Court Act and was committed to a state-supported training school. J.M.R. argues that the trial judge erroneously considered facts not brought forth in open court and abused his discretion in ordering J.M.R.’s commitment to training school.

¶ 2. We find no error in the trial judge’s order and affirm the youth court’s adjudication.

FACTS

¶ 3. J.M.R. was adjudged to be delinquent on October 5, 1999. The trial judge committed him to a state-supported training school but ordered that transportation to the training school be withheld. He then placed J.M.R. on supervised probation. J.M.R. was adjudged delinquent again on June 6, 2000, and he was transported to training school. He was later released and placed on supervised probation.

¶ 4. On February 26, 2001, a petition was filed alleging that J.M.R. violated his probation, committed burglary and petit larceny. J.M.R. admitted that he was guilty of all charges against him and was adjudged delinquent on March 8, 2001. On that same day, a disposition hearing was conducted and the trial judge found that there was no other reasonable alternative than training school and that the least restrictive alternative consistent with J.M.R.’s best interest was that he be placed in training school. The trial judge temporarily suspended transportation to training school because J.M.R. had a leg/ankle injury and was under the care of a local physician and physical therapist. The trial judge withheld transportation for two weeks so further documentation could be submitted on J.M.R.’s physical condition.

¶ 5. On April 5, 2001, at the review hearing to determine J.M.R.’s physical fitness to participate in training school programs, testimony was introduced that J.M.R. had attempted suicide and stolen prescription medication. Additional evidence was introduced where a counselor opined that J.M.R. suffered from clinical depression with suicidal ideation. J.M.R. was also deemed by the counselor to have behavioral problems due to his depression including polysubstance abuse. The trial judge ordered that J.M.R. be examined to determine if he was a candidate for the children/adolescence division at a mental hospital. He was held at the detention center while he awaited psychological and psychiatric evaluations. Duly, transportation to training school was deferred to determine if J.M.R. came under the mentally ill commitment guidelines.

¶ 6. The trial judge held other review hearings to determine if J.M.R. was sufficiently able mentally and physically to be transported to training school. A final review hearing was held by the trial judge on May 21, 2001. At that time, evidence was introduced from mental health personnel recommending that J.M.R. be allowed to continue psychiatric treatment and not sent to training school. At the conclusion of this hearing, the trial judge authorized transportation of J.M.R. to training school.

ANALYSIS AND DISCUSSION OF THE ISSUE

Commitment to Training School

¶ 7. An appellate court’s review of youth court cases is limited. In the Interest of S.B., 566 So.2d 1276, 1278 (Miss.1990).

We consider all the evidence before the Youth Court in the light most favorable to the State. If the evidence so considered is opposed to the adjudication of the Youth Court with such force that reasonable men could not have found as the Youth Court did beyond a reasonable doubt, we must reverse. On the other hand, if there is substantial evidence in the record supporting the adjudication of the Youth Court, evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, the Youth Court might reasonably have ruled as it did, we must affirm.

Id.

The standard of review by an appellate court in Mississippi is to grant great authority and wide discretion to the youth court in delinquency cases and disposition orders. In the Interest of T.D.B., 446 So.2d 598, 599 (Miss.1984).

¶ 8. J.M.R. contends that the trial judge improperly considered facts that were not a part of the record and therefore the court’s decision to commit him to training school was an abuse of discretion and constitutes reversible error. One argument J.M.R. makes to support his claim of error by the trial judge explains that the trial judge improperly considered facts that were brought forth during the proceedings held in open court on May 21, 2001. Specifically, J.M.R. cites to the trial judge’s mentioning that he had received phone calls from “people in the community” informing him that J.M.R.’s leg was not injured and that J.M.R. had been seen jumping on a trampoline.

¶ 9. The State argues in its brief that the issue raised by J.M.R. is moot because, according to the State, J.M.R. has already been to, and released from, the training school. However, it is not clear from the record when J.M.R. was transported to training school nor when, or if, he has been released. Consequently, we decline the State’s urging that no issue remains for our review. We address the issue on its merits.

¶ 10. We first note that J.M.R. does not quote the trial judge completely and misconstrues the trial judge’s statements. The trial judge specifically said that he gave greater weight and credibility to the doctor’s reports than he did to what the community was reporting back to him. To quote directly from the transcript, the trial judge stated subsequently after remarking on the phone calls that “that is not what the doctor’s report said, so I took the doctor’s report more serious than I did what some of the neighborhood people were telling me about you.” Moreover, the trial judge affirmed at this hearing that he only delayed transportation because J.M.R. was injured and he was giving J.M.R. an opportunity to get some counseling. The trial judge repeatedly stated throughout the disposition hearing and review hearings that he did what he thought was in J.M.R.’s best interest and that he could not find any least restrictive alternative than commitment to training school.

¶ 11. As we have previously mentioned, our standard of review is to allow the youth court wide discretion. The second argument made in support of the issue J.M.R. raised explains that the trial judge’s commitment of J.M.R. to training school was an abuse of discretion. We disagree. There is substantial evidence in the record to support his order to commit J.M.R. to training school. On two prior occasions, J.M.R. had been adjudicated delinquent. Moreover, J.M.R. admitted to violating probation and committing the crimes of burglary and petit larceny. Other disposition alternatives had been utilized in the past with J.M.R., and the trial judge found commitment to training school was in J.M.R.’s best interest. J.M.R. maintains that the trial judge improperly considered community hearsay in the disposition hearing, but that is not evidenced in the record. The trial judge at the disposition hearing on March 8, 2001, committed J.M.R. to training school. Throughout the review hearings to determine J.M.R.’s physical and mental fitness to attend training school, the trial judge repeatedly affirmed that transportation to training school was being held in abeyance and that the order was not being vacated. We find nothing inappropriate about the trial judge’s statements made at the May 21, 2001 review hearing, but even if the comments were inappropriate, no prejudice attached. This Court finds that the trial judge did not err nor abuse his discretion in committing J.M.R. to training school. Therefore, we affirm the trial judge.

¶ 12. THE JUDGMENT OF THE YOUTH COURT OF LEE COUNTY ADJUDICATING J.M.R. TO BE DELINQUENT AND COMMITTING HIM TO A STATE-SUPPORTED TRAINING SCHOOL IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

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