author: LEE, J.,

text:
    Anthony PULLIAM d/b/a East Hill Pool Construction, Appellant, v. Larry CHANDLER and Suzanne Chandler, Appellees.
    No. 2003-CA-01591-COA.
    Court of Appeals of Mississippi.
    May 11, 2004.
    John H. Freeland, Ridgeland, attorney for appellant.
    Gregory S. Park, Oxford, attorney for appellees.
   LEE, J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. In 1998, Larry and Suzanne Chandler contracted with Anthony Pulliam for the installation of a pool in the Chandler family backyard. Included in the contract were specifications for a concrete deck around the pool, with the Chandlers choosing either a smooth, brushed finish or a washed, pea gravel finish. The Chandlers requested, and Pulliam installed, a black chain-link fence around the backyard. Pulliam constructed the pool and laid the concrete deck. Pulliam hired a sub-contractor to complete the pool lighting; however, the sub-contractor never completed the lighting, and the Chandlers hired an electrician to complete the lighting at a cost of $465. The Chandlers paid Pulliam a total of $11,850 for the work on the pool. The cost of the deck and the fence were not included in the contract and became a source of contention between the parties.

¶ 2. In 2000, Pulliam filed suit against the Chandlers for failure to pay for the deck and the fence. The Chandlers counter-claimed, alleging that Pulliam’s work on the deck was substandard. The Chandlers further claimed that they were never sent a bill for the work; therefore, they could not pay Pulliam for. his labor. At the bench trial, the Chandlers were ordered to pay only for the fence. Pulliam appeals the decision of the circuit court, assigning the following as error;

I. DID THE CIRCUIT COURT ERR IN CONSULTING AND RELYING UPON THE OPINION OF A CONCRETE FINISHER WHOSE OPINION WAS GIVEN OUTSIDE THE RECORD AND WITHOUT CROSS-EXAMINATION? .
II. DID THE CIRCUIT COURT ERR IN FAILING TO AWARD CONTRACT DAMAGES OR AN AWARD AT QUANTUM MERUIT?
III. DID THE CIRCUIT COURT ERR IN FAILING TO AWARD ATTORNEY’S FEES?

STANDARD OF REVIEW

¶ 3. When a trial court sits without a jury, this Court will reverse only when the findings of the trial judge are manifestly wrong or clearly erroneous. Amerson v. State, 648 So.2d 58, 60 (Miss.1994). A judge sitting as the trier of fact has sole authority for determining the credibility of witnesses. Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1265 (Miss.1987).

¶ 4. Appellees did not file a brief in this case, and in considering the case, this Court has two alternatives before it, as discussed in W.T. Raleigh v. Armstrong, 165 Miss. 380, 380, 140 So. 527, 527-28 (1932).

(1) When the record is complicated or of large volume, and the case has been thoroughly briefed by appellant with a clear statement of the facts, and with applicable citations of authorities, so that the brief makes out an apparent case of error, we will not regard ourselves as obliged to look to the record or to search through it to find something by which to avoid the force of appellant’s presentation, but will accept appellant’s brief as confessed and will reverse. Or (2) when the record is in such condition that we can conveniently examine it, and when upon such an examination we can readily perceive a sound and unmistakable basis or ground upon which the judgment may be safely affirmed, we will take that course and affirm, thereby to that extent disregarding the default of appellee. But when, taking into view the argument presented by appellant, the basis or grounds of the judgment, and the facts in support of it are not apparent, or are not such that the court could with entire confidence and safety proceed to affirmance, the judgment will be reversed without prejudice.

¶ 5. Thus, under Raleigh, because the record in this case is not large, this Court will review the record taking into view the argument of the appellant.

I. DID THE CIRCUIT COURT ERR IN CONSULTING AND RELYING UPON THE OPINION OF A CONCRETE FINISHER WHOSE OPINION WAS GIVEN OUTSIDE THE RECORD AND WITHOUT CROSS-EXAMINATION?

¶ 6. A trial judge must base his findings upon the evidence and testimony, and not upon his personal knowledge of the case. City of Jackson v. Lee, 234 Miss. 502, 509-10, 106 So.2d 892, 895 (1958). Furthermore, the supreme court has determined that communications as to facts on the merits of any litigated case may be presented only by sworn witnesses or by the agreement of counsel. Wisdom v. Stegall, 219 Miss. 776, 785, 70 So.2d 43, 46 (1954). After hearing the testimony of the witnesses, the trial judge was either unsatisfied or unconvinced with the Chandlers’ proof that the deck was substandard, and he proceeded with his own investigation of the matter. Abandoning the confínes of the evidence presented at trial, the trial court sought the opinion of a friend regarding the quality of the deck. In his ruling from the bench, the trial judge recounted this consultation as follows:

And I withdrew the exhibits and carried them with me and carried them to a concrete finisher.... I carried him the pictures of the deck and I said all I want you to tell me, Jimmy, is whether or not the people got what they asked for. And he studied them for a good while, came back and he said they didn’t get what they asked for. He said, he began to tell me how it could have been cured. How it could have been done when it was finished ... and then I asked him if anything could be done to cure the problem. And he said that you could possibly pour pad on top of that with a new process that they had it [sic ] would cost about seven dollars a square foot which was far in excess of what the original cost was....

The trial judge proceeded to discuss how this testimony was not subject to cross-examination, yet he acknowledged how the interview influenced his ruling, stating “[a]nd that was the reason I ruled as I did and chiefly because I have a lot of confidence in him as a concrete finisher.”

¶ 7. Relying on this “interview” was clearly an abuse of discretion. The Chandlers -did not offer testimony as to the cost of either replacing or repairing the deck. Additionally, the Chandlers offered no opinions as to the poor quality of the deck, other than their general dissatisfaction with the aesthetics of the deck and that sections of it were uncomfortable when their feet were tender after soaking in the pool. To entertain this testimony which was not subject to cross-examination, and to render judgement based on the information obtained therefrom violates the appellant’s procedural due process rights. It is, indeed, an essential part of procedural due process that a party to a suit may interrogate the witness upon whose evidence the decree is based. Wisdom, 219 Miss. at 783, 70 So.2d at 45.

¶ 8. Because the trial court erred in basing its judgment on testimony that was neither taken under oath nor subject to cross-examination, the remaining assignments of error need not be addressed.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY IS REVERSED AND REMANDED FOR A NEW TRIAL. ALL COSTS OF APPEAL ARE ASSESSED TO THE AP-PELLEES.

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


source: Caselaw Access Project

license: Public Domain

text:
    Bera G. HOLLOWAY, Appellant, v. Leslie J. MILLS, Appellee.
    No. 2003-CA-00855-COA.
    Court of Appeals of Mississippi.
    May 11, 2004.

      Henry C. Clay, Ridgeland, attorney for appellant.
    Leslie J. Mills, Appellee, pro se.
   LEE, J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Leslie Mills and Bera G. Holloway are the parents of LaDarrion G. Holloway. In 1994, the 264th Judicial District Court of Harris County, Texas, entered an order under the Uniform Interstate Family Support Act, in which Mills was given custody of the minor child. Holloway was ordered, among other things, to pay child support and provide insurance coverage for the child. The order further provided that Holloway and Mills would each pay fifty percent of all un-reimbursed health care expenses, if, at the time the expenses were incurred, Holloway had provided LaDar-rion with insurance coverage. If Holloway should fail to provide LaDarrion with insurance coverage, he would be responsible for all health care expenses.

¶ 2. Both parties subsequently relocated to Hinds County, Mississippi. On November 6, 2001, Holloway filed a complaint for visitation in the Chancery Court of the First Judicial District of Hinds County. Mills answered and counter-claimed for proof of insurance for LaDarrion, for reimbursement for medical expenditures on behalf of LaDarrion, and for an increase in child support.

' ¶ 3. A trial was held on February 12, 2002. At the trial, Holloway testified that he did, in fact, have proof that LaDarrion was covered by his insurance between the years of 1994 and 1998; however, he simply neglected to bring the information to court. Mills testified that she had not been provided with any proof of insurance, and as a result had incurred medical expenses and the cost of insurance for which she should be reimbursed. The trial court ruled that Holloway was to present proof of insurance in compliance with the Texas court’s order “so that the Court can make a determination as to whether or not [Holloway] has been in compliance with the Court’s order which would then depend upon whether or not the Court would find he is obligated to pay any past medical expenses related to the minor child.” A judgment and order was entered on April 8, 2002; however, the order did not memorialize the trial court’s reservation on ruling on Holloway’s liability for the past medical expenses.

¶ 4. On February 14, 2003, Mills filed a petition to enforce the prior judgment. A hearing was held on March 19, 2003. At the hearing, Holloway still possessed no proof that he had provided LaDarrion with insurance coverage from 1994 to October 1998. Because he lacked evidence that LaDarrion was so insured, the chancellor ordered that Holloway reimburse Mills $4,864.27 in medical bills. Aggrieved, Holloway filed this appeal, and assigns as error the following:

I. DID THE TRIAL COURT ABUSE ITS DISCRETION IN ALLOWING MILLS TO SUBMIT MEDICAL BILLS FOR CONSIDERATION AT THE MARCH,2003 HEARING?

II. DID THE TRIAL COURT ABUSE ITS DISCRETION IN ORDERING PAYMENT OF MEDICAL BILLS NOT SUBMITTED IN A TIMELY MANNER?

STANDARD OF REVIEW

¶ 5. The standard of review for domestic cases is abundantly clear. This Court will not disturb the findings of a chancellor unless we find an abuse of discretion, an erroneous application of law, or a manifest error. Andrews v. Williams, 723 So.2d 1175, 1176(¶7) (Miss.Ct.App.1998) (citations omitted). Thus, if we find substantial evidence in the record to support the chancellor’s findings, we will not reverse. Wilbourne v. Wilbourne, 748 So.2d 184, 186(¶ 3) (Miss.Ct.App.1999).

DISCUSSION OF ISSUES

¶ 6. Mills did not file a brief in this matter; therefore, we have two options before us. The first is to take Mills’s failure to file a brief as a confession of error and reverse, which should be done when the record is complicated or of large volume and “the case has been thoroughly briefed by [the] appellant with a clear statement of the facts, and With apt and applicable citation of authorities, so that the brief makes out an apparent case of error [.]” May v. May, 297 So.2d 912, 913 (Miss.1974). The second is to disregard Mills’s error and affirm, which should be used when the record can be conveniently examined and such examination reveals a “sound and unmistakable basis or ground upon which the judgment may be safely affirmed [.]” Id. Because Holloway has not made out an apparent case of error and the basis for the chancellor’s decision is sound, we affirm and discuss the merits below.

I. DID THE TRIAL COURT ABUSE ITS DISCRETION IN ALLOWING MILLS TO SUBMIT MEDICAL BILLS AT THE APRIL 2003 HEARING?

¶7. The trial court did not abuse its discretion in admitting medical bills into evidence at the March 2003 hearing. In her ruling from the bench, Judge Wise clearly indicated that she would reserve ruling on Holloway’s liability for the medical bills until there was a determination that he lacked insurance during the time in question. Judge Wise then granted Holloway thirty additional days to submit proof of insurance to the court. Holloway failed to present such evidence as required in the April 2002 order. Because the chancellor reserved her ruling on Holloway’s liability for the medical bills, the chancellor did not abuse her discretion in hearing evidence on the issue of medical bills at the subsequent hearing.

II. DID THE TRIAL COURT ABUSE ITS DISCRETION IN ORDERING PAYMENT OF MEDICAL BILLS NOT SUBMITTED IN A TIMELY MANNER?

¶ 8. In support of his contention that he should not have to reimburse Mills for the medical expenses, Holloway cites Milam v. Milam, 509 So.2d 864 (Miss.1987) and Hambrick v. Prestwood, 382 So.2d 474 (Miss.1980). In Hambrick, the father contested payment of medical expenses but provided no evidence of insurance covering the child at the time the bills were incurred. Hambrick, 382 So.2d at 477. In Milam, the father contested reimbursement for medical expenses incurred while he actually had insurance. Milam, 509 So.2d at 866. However, in Milam the court denied reimbursement for medical expenses upon a showing that the father possessed insurance and could have paid the bills had the mother submitted the bills to him in a timely manner. Id.

¶ 9. Holloway conveniently fails to note that the analysis adopted in Ham-brick and utilized in Milam does not rest solely on whether or not the medical bills were submitted in a timely manner. Instead, the court considers whether or not the party contesting payment had insurance that would have covered the charges. “[W]here a party is required to pay medical expenses for which he has insurance coverage, the bills must be submitted to him promptly for payment so that he may then submit them to his insurance company.” Hambrick, 382 So.2d at 477. The case at bar follows the facts of Hambrick. Like the father in Hambrick, Holloway has not provided a shred of evidence that LaDarrion was covered by his insurance policy at the time the medical expenses were incurred. Because he has failed to show any proof of insurance, Holloway fails to meet the criteria utilized in Ham-brick. The chancellor did not abuse her discretion in requiring Holloway to pay for medical charges incurred due to his failure to insure his child. Finding no error, we affirm.

¶10. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF APPEAL ARE TAXED TO THE APPELLANT.

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


author: GRIFFIS, J.,

text:
    Sam WAITES, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-CP-00392-COA.
    Court of Appeals of Mississippi.
    May 11, 2004.
    Sam Waites, Appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Sam Waites was indicted and pled guilty to charges of sale of cocaine and conspiracy to transfer cocaine. Waites was sentenced to serve a term of ten years with the Mississippi Department of Corrections on each charge, with the sentences to run concurrently. The circuit court denied Waites’ petition for post-conviction relief, and Waites now perfects his appeal. Finding no error, we affirm.

FACTS

¶2. On or around October 9, 2000, Waites was arrested and charged with sale of cocaine. On August 16, 2001, Waites was indicted by the grand jury on two counts, sale of cocaine and conspiracy to transfer cocaine. On January 18, 2002, with the assistance of counsel, Waites voluntarily entered a plea of guilty to both charges.

¶ 3. After accepting his guilty plea, the circuit judge sentenced Waites to ten years on each charge, with the sentences to run concurrently. Waites filed a petition for post-conviction relief that asserted: (1) a specific amount of cocaine was not stated in either indictment, (2) ineffective assistance of counsel for not discovering or objecting to the fact that a specific amount of cocaine was not stated in the indictments, (3) neither his attorney nor the court informed him that a specific quantity was an essential element of the crimes, and (4) the indictments do not fully inform him of the nature and cause of the accusations against him.

STANDARD OP REVIEW

¶ 4. “When reviewing a lower court’s decision to deny a petition for post conviction relief, this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Brown v. State, 731 So.2d 595, 598 (Miss.1999). “However, where questions of law are raised the applicable standard of review is de novo.” Id.

ANALYSIS

¶ 5. It is a well-settled principle of law that a valid , guilty plea admits all elements of a formal charge and operates as a waiver of all non-jurisdictional defects contained in an indictment against a defendant. Reeder v. State, 783 So.2d 711, 720 (Miss.2001) (citing Brooks v. State, 573 So.2d 1350, 1352 (Miss.1990)). Therefore, by pleading guilty, Waites waived his right to appeal based upon the indictment. Notwithstanding this waiver, we address the issues raised by Waites.

¶6. Waites first asserts that his indictment was faulty for not stating an exact amount of cocaine. Miss.Code Ann. § 41-29-139(a)(1) (Rev.2001) defines the crime for which Waites was convicted:

Except as authorized by this article, it is unlawful for any person knowingly or intentionally: (1) to sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance.

There was no requirement that a specific amount of a controlled substance be found in order for a person to be convicted under this section.

¶7. Waites was sentenced under Miss. Code Ann. § 41-29-139(b) (Rev.2001), which provides the sentencing standards for a conviction under subsection (a) for crimes involving cocaine. This section also contains sentencing standards for crimes involving marihuana. This is the point of Waites’ confusion. For crimes involving marihuana, sentencing may vary depending upon the amount of the controlled substance involved. However, such limitations do not apply to crimes involving cocaine. Waites was convicted of the transfer of cocaine, not marihuana. Thus, since there is no statute that requires a specific amount of cocaine be included in the indictment, Waites’ claim that his indictment was faulty is without merit.

¶ 8. Waites next asserts that he was denied the effective assistance of counsel. To prevail on this claim, Waites must demonstrate that his counsel’s performance was deficient and that this deficiency prejudiced him in such a way that he was denied a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The counsel’s deficiency is assessed by looking at the totality of the circumstances. Hiter v. State, 660 So.2d 961, 965 (Miss.1995). We, as an appellate court, apply “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Burns v. State, 813 So.2d 668, 673(¶ 14) (Miss.2001).

¶ 9. Waites claims that his counsel was ineffective because he failed to discover that the indictment was faulty for not stating an amount of the controlled substance. Waites also contends that his counsel was ineffective for failing to object to the faulty indictment, prejudicing Waites in sentencing. Waites’ claims are moot because, as discussed above, .the indictment was not defective. Before accepting Waites’ guilty plea, the judge specifically asked Waites if he was satisfied' with his counsel. Waites responded in the affirmative. Moreover, the signed guilty plea petition indicates that Waites was informed of the possible sentence he could receive and that Waites stated-he was satisfied with the representation of his counsel. Therefore, we find this issue to be without merit.

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

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


author: IRVING, J.,

text:
    Joy GRAVES, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-CA-00377-COA.
    Court of Appeals of Mississippi.
    May 11, 2004.
    Mose Lee Sudduth, Columbus, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
   IRVING, J.,

for the Court.

¶ 1. Joy Graves pleaded guilty, in the Circuit Court of Lee County, to possession of cocaine. She was sentenced to twenty years in the custody of the Mississippi Department of Corrections but was placed in the Intensive Supervision Program (ISP), also known as house arrest. Thereafter, Graves filed a motion for post-conviction relief alleging that she received ineffective assistance of counsel in that her trial counsel did not fully inform her of “the proceedings and possible outcome of her entry of guilty plea.” Without granting a hearing, the trial court dismissed the motion. Graves now appeals, asserting that she was denied her right to an eviden-tiary hearing, and that the trial court should be directed to hold the hearing pursuant to section 99-39-19 of the Mississippi Code of 1972 as amended. Finding no error, we affirm the trial court’s decision.

FACTS

¶ 2. On August 1, 2000, Joy Graves was indicted by a Lee County grand jury for the sale of cocaine and conspiracy to sell a controlled substance. She pleaded guilty to the charge of possession of cocaine with intent to sale and was sentenced to a term of twenty years. The sentence was suspended, and Graves was placed in the ISP. She was also ordered to pay $705 in restitution to the North Mississippi Narcotics Unit and was fined $5,000 with $4,000 suspended.

¶ 3. Graves’s ISP was subsequently terminated and she was placed in the custody of the MDOC. On June 17, 2002, she filed a motion for post-conviction relief alleging that her plea of guilty was involuntarily and unknowingly made because she received ineffective assistance of counsel in that her attorney did not adequately communicate with her or advise her of the consequences of her plea.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 4. Graves maintains that she was denied an opportunity to present the lower court with evidence that would support her claim of ineffective assistance of counsel. She maintains that, under the provisions of the Mississippi Uniform Post-Conviction Collateral Relief Act, Mississippi Code Annotated section 99-39-1 to -29, she was entitled to an evidentiary hearing.

¶ 5. Circuit courts are authorized to summarily dismiss PCR motions “if it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief....” Miss.Code Ann; § 99-39-11(2) (Rev.2000). Graves’s PCR motion alleged (1) that her trial counsel did not communicate with her over the period immediately before she entered her guilty plea, (2) that on the day she entered her guilty plea, her trial counsel told her that she had to enter a guilty plea notwithstanding the fact that she was innocent and did not want to enter a guilty plea, and (3) that trial counsel convinced her that, if she entered a guilty plea, she would not have to serve any time. Graves attached no affidavits to her PCR motion other than hers.

¶ 6. Graves relies heavily on Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) in support of her argument. She properly advances that the standard articulated in the Strickland case “applies to challenges to guilty pleas based on ineffective assistance of counsel.” Brooks v. State, 573 So.2d 1350, 1353 (Miss.1990). In Strickland, a defendant challenged his murder conviction by alleging that he received ineffective assistance of counsel. The U.S. Supreme Court upheld the conviction and held that the proper standard for an attorney’s performance is that of reasonably effective assistance, considering all the circumstances. Strickland, 466 U.S. at 669, 104 S.Ct. 2052.

¶ 7. The Supreme Court also articulated a two-part test in determining if an attorney’s performance is so deficient as to warrant reversal of a conviction. First, the defendant must show that counsel’s performance was deficient. Id. at 687, 104 S.Ct. 2052. This requires a showing that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Id. Second, the defendant must show that the deficient performance prejudiced his defense. Id. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that rendered the result unreliable. Id.

¶ 8. Graves’s sworn statements made during her plea qualification hearing belies the allegations of her PCR motion. The trial judge advised Graves of the various rights that she would be giving up by pleading guilty and engaged in the following exchange with her during the plea hearing:

Q: Has anyone put any pressure on you, forced you in any way or told you that you had to plead guilty to these charges?
A: No, sir.
Q: Do you understand you don’t ever have to plead guilty to a criminal charge?
A: Yes, sir.
THE COURT: Mr. Thorne, as attorney for this defendant, have you discussed these charges with her carefully, advised her of her constitutional rights and the consequences of pleading guilty to these charges?
Mr. Thorne: Yes, Your Honor.
THE COURT: Do you think that she understands your advice and that she is in fact entering each of these pleas freely and voluntarily?
Mr. Thorne: Yes, Your Honor.
BY THE COURT: (Continuing)
Q: Ms. Graves, are you satisfied with the legal services and the advice given you by your attorney?
A: Yes, sir.
Q: Do you think that he has properly advised you before pleading guilty to these charges and represented your best interests in handling these cases?
A:. Yes, sir.
Q: Do you have any questions about what is taking place here?
A: No, sir.
Q: Is there anything about this you don’t understand?
A: No, sir.

¶ 9. At the conclusion of the hearing, the court found that Graves’s decision to enter the guilty plea was knowingly, understandingly, freely, and voluntarily made. The court then accepted the plea and specifically found that Graves had admitted her guilt at the time of the plea.

¶ 10. We find that the trial court properly concluded that Graves’s PCR motion, alleging ineffective assistance of counsel, was without merit and properly dismissed it without an evidentiary hearing. In considering PCR motions, trial judges are entitled to rely upon the sworn statements made by defendants during their plea qualification hearings. Graves said nothing in her PCR motion that is not contradicted point by point in her sworn testimony given during the plea qualification hearing. Therefore, we affirm the trial judge’s decision.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

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


author: MYERS, J.,

text:
    Kevin WESLEY, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00176-COA.
    Court of Appeals of Mississippi.
    May 11, 2004.

      Thomas W. Powell, Jackson, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
   MYERS, J.,

for the Court.

¶ 1. Kevin Wesley was convicted in Hinds County Circuit Court for shoplifting. Wesley was sentenced to a term of three years. Wesley appeals the conviction and sentence contending that the trial court erred in denying his motion to dismiss for failure to have a speedy trial.

Date Event

10-04-00 Wesley arrested

12-13-00 Wesley indicted

I. WAS THE APPELLANT DENIED HIS RIGHT TO A SPEEDY TRIAL?

STATEMENT OF FACTS

¶2. Wesley went to a Jackson-area McRae’s department store located in the Metrocenter mall. Wesley approached the north level of the store and began to peer through the doors. Employees from McRae’s loss prevention department observed Wesley’s behavior through their security camera system and decided to pursue the matter. There were three loss prevention employees working at the time and one operated the security camera system while the other two went onto the sales floor.

¶ 3. Wesley finally entered the store and walked into the men’s big and tall department. Wesley approached the Duck Head display and began placing shirts into a trash bag. He then hid the trash bag under a fixture and exited the store. About ten minutes later, Wesley returned through the north entrance, grabbed the bag, and ran for the exit. The two loss prevention employees who were on the sales floor at the time pursued Wesley outside the store. All of this was captured on video.

¶ 4. While in the parking lot, one of the loss prevention employees approached Wesley and identified himself. Wesley made eye contact with the employee, dropped the trash bag, and began to run. The two employees eventually caught Wesley and he was escorted into McRae’s loss prevention office. Shortly thereafter, Wesley was arrested.

¶ 5. Since Wesley’s appeal deals solely with a speedy trial claim, the more pertinent facts revolve around the procedural posture of the case and are as follows:

03-??-01 PosL-indictment warrant issued

05-14-01 Wesley waived arraignment

06-19-01 Defense requested continuance

09-06-01 Post indictment warrant issued

10-19-01 Wesley arrested

02-07-02 Defense requested continuance

02-28-02 Defense requested continuance

06-19-02 Defense requested continuance

08-29-02 Case taken off of the plea docket and placed on the trial docket

10-30-02 Wesley filed motion to dismiss for lack of speedy trial

10-31-02 Motion to dismiss denied

11-05-02 Trial

LEGAL ANALYSIS

I. WAS THE APPELLANT DENIED HIS RIGHT TO A SPEEDY TRIAL?

¶ 6. A defendant in a criminal case has a right to a speedy trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article 3, Section 26 of the Mississippi Constitution. Sharp v. State, 786 So.2d 372, 377(¶ 4) (Miss.2001). In addition, Mississippi Code Annotated Section 99-17-1 creates a statutory right to a speedy trial. Id. As a result, it is appropriate that the issue be examined from both legal standpoints. Id. Due to the factual specifics of each action, alleged speedy trial violations are examined on a case-by-case basis. McGhee v. State, 657 So.2d 799, 802 (Miss.1995). Finally, compliance with the statutory rule does not necessarily mean that the constitutional requirement has been met. Flores v. State, 574 So.2d 1314, 1321 (Miss.1990).

THE STATUTORY RIGHT

¶ 7. The 270-day rule analysis is very fact specific and hinges upon which side (prosecution or defense) caused the delays. Sharp, 786 So.2d at 377(¶ 5). Section 99-17-1 states that “[ujnless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.” Miss.Code Ann. § 99-17-1 (Rev.2000).

¶ 8. The first step is to calculate the total number of days between arraignment and the actual trial. In doing so, “[t]he date of arraignment is not counted but the .date of trial is and weekends are counted unless the 270th day is a Sunday.” Johnson v. State, 756 So.2d 4, 11 (¶21) (Miss.Ct.App.1999). According to this rule, Wesley was tried 540 days after his arraignment. This appears to be an exorbitant delay for someone to be brought to trial. However, the second step in the 270-day rule analysis is to consider each delay separately because only those delays attributable to the State count toward the 270 days. Baine v. State, 604 So.2d 258, 264 (Miss.1992).

¶ 9. The first block of time to be considered is from arraignment (05-14-01) to the first continuance (06-19-01). This is a period of 36 days and the prosecutor acknowledged that this time counts against the State.

¶ 10. The next block of time to be considered is from the first continuance (06-19-01) to the issuance of Wesley’s second post-indictment warrant (09-06-01). This is a period of 79 days and does not count against the State because the continuance was sought by Wesley’s counsel. “As such, continuances sought by the defense are charged against them.” Sharp, 786 So.2d at 378(¶ 7) (citing Herring v. State, 691 So.2d 948, 953 (Miss.1997)).

¶ 11. The next block of time to be considered is from the issuance of the second post-indictment warrant .(09-06-01) to Wesley’s actual arrest (10-19-01). This is a period of 43 days that did not count against the State.

¶ 12. The next block of time to be considered is from the date of Wesley’s arrest (10-19-01) to the second continuance (02-07-02). This period amounted to 111 days and the prosecutor acknowledged that this time counted against the State.

¶ 13. The second continuance ran from February 7, 2002, until.February 28, 2002. This is a period of 21 days that is not attributable to the State. See Sharp, 786 So.2d at 378(¶ 7).

¶ 14. There was a third continuance granted on February 28, 2002, that ran until June 19, 2002. This continuance, like all of the others, was requested by Wesley’s counsel. As a result, this time consisting of HI days cannot be charged against the State. Id.

¶ 15. A fourth continuance was granted on June 19, 2002, that ran until August 29, 2002. During this time period, the case at bar was set on the plea docket. Wesley argues that this time period is attributable to the State because of an alleged failure to provide his newly appointed counsel with discovery. The State responded to this claim by arguing that it had provided discovery to the public defender’s office in January 23, 2001. However, the record reveals that Wesley requested and obtained a change of counsel approximately eleven months later on May 9, 2002.

¶ 16. “[A] delay caused by the withdrawal of the defendant’s attorney which entails allowing the new attorney a reasonable time to become familiar with the case and prepare for trial cannot be weighed against the State because it is beyond the State’s control.” Sharp, 786 So.2d at 378(¶ 9). Moreover, Wesley did not demand trial during this period and did not indicate that he had changed his mind about pleading guilty. August 29, 2002 was the first time either the State or the trial court had any notice that Wesley intended to proceed to trial. Time associated with an earnest attempt at plea negotiations will also not be weighed against the State. Sharp, 786 So.2d at 378(¶ 8). As a result, this time period consisting of 71 days cannot be charged against the State.

¶ 17. The final block of time that must be considered is from the date the case at bar was placed on the trial docket (08-29-02) until the date of trial (11-05-02). The State contends that this delay may very well be attributable to them despite the fact that it had no notice in writing or in the record of Wesley’s intentions until he filed his motion to dismiss on October 30, 2002. Whether this delay is charged against the State matters little since the prosecution is within the 270-day rule with or without this 68-day period.

¶ 18. Three hundred and twenty-five days are attributable to Wesley’s continuances, changing of attorneys, and refusals to appear in court. This leaves the State responsible for only 215 days even if we assume it is responsible for the final delay. As a result, we hold that Wesley’s statutory right to a speedy trial has not been violated.

THE CONSTITUTIONAL RIGHT

¶ 19. Compliance with the 270-day rule is suggestive of whether the constitutional speedy trial right has been violated but it is not dispositive. Flores, 574 So.2d at 1321. The constitutional right to a speedy trial attaches at the time of arrest rather than arraignment. Hum phrey v. State, 759 So.2d 868, 375 (¶ 13) (Miss.2000). The constitutional right is a weighing test based upon the Barker factors which “are (1) the length of delay, (2) the reasons for the delay, (3) assertion of the right to a speedy trial, and (4) prejudice to the defense.” Herring v. State, 691 So.2d 948, 953 (Miss.1997) (citing Barker v. Wingo, 407 U.S. 514, 529, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). Finally, a delay in excess of eight months between arrest and trial establishes “presumptive prejudice” sufficient to trigger an analysis under Barker. Skaggs v. State, 676 So.2d 897, 900 (Miss.1996).

¶ 20. In the case sub judice, there were 762 days from the date of Wesley’s arrest until the date of his trial. This length of time certainly exceeds eight months. As a result, Wesley’s case must be analyzed under the Barker four-factor test.

1. Length of Delay

¶ 21. As previously stated, the considerable delay of 762 days “is a strong indication that there may have been a violation of [Wesley’s] constitutional right to a speedy trial.” Sharp, 786 So.2d at (¶ 16). This factor weighs in Wesley’s favor.

2. Reasons for delay

¶ 22. This factor was analyzed under the discussion of Wesley’s statutory right to a speedy trial. The majority of the delay was attributable to Wesley’s refusal to appear in court on two separate occasions, Wesley’s decision to change counsel, and defense counsels’ four requested continuances. When most of the delay in a ease is attributable to the many continuances and changing of attorneys by the defense, this factor will weigh against the defense in the balancing test. Sharp, 786 So.2d at (¶ 17).

S. Assertion of right

¶ 23. It is not clear whether Wesley ever demanded a trial. On August 29, 2002, Wesley’s case was removed from the plea docket and placed on the trial docket. This was the first time either the State or the trial court had notice that Wesley intended on pleading not guilty. Sixty two days later, Wesley filed a motion to dismiss for lack of a speedy trial. A hearing on that motion was held the very next day and the trial court denied the requested relief. Five days later, Wesley proceeded to trial.

¶24. Even if we assume that the removal of Wesley’s case from the plea docket constituted a demand for trial, this act did not occur until very late in the process. In other words, the delay between the demand for a trial and the trial totaled 68 days. In addition, we note the fact that Wesley refused to appear in court and evaded arrest on two separate occasions. These actions demonstrate to us that Wesley had no interest in demanding a trial. As a result, this factor does not weigh in Wesley’s favor.

L Prejudicial effect of the delay

¶ 25. “The possibility of impairment of the defense is the most serious consideration in determining whether the defendant has suffered prejudices as a result of delay.” Elder v. State, 750 So.2d 540, 545 (¶ 20) (Miss.Ct.App.1999). “Generally, proof of prejudice entails the loss of evidence, death of witnesses, or staleness of an investigation.” Sharp, 786 So.2d at (¶ 19). In the instant ease, these things did not change. In other words, the trial unfolded the same as if it had been held much earlier. Id. A videotape of the entire incident was viewed by the jury and Wesley presented no defense. As a result, no real impairment can be claimed.

¶ 26. Wesley argues that the delay has caused him undue emotional and mental anguish as well as the loss of personal freedom and property. However, mere claims of anxiety and the like are afforded little weight under the analysis of this factor. Gholston v. State, 843 So.2d 62, 65 (¶ 14) (Miss.Ct.App.2002). In addition, “incarceration alone is not enough to warrant reversal.” McGee v. State, 608 So.2d 1129, 1130 (Miss.1992).

¶ 27. We hold that Wesley’s constitutional right to a speedy trial has not been violated. There was some delay in this case, but the majority of the delay was attributable to either Wesley’s or his attorney’s actions. It is arguable whether there was ever a demand for trial and Wesley himself acted in such a way as to frustrate that very purpose. Moreover, there was no prejudice. Wesley should not be allowed to delay matters and then claim that those delays prejudiced him, violating his constitutional right to a speedy trial.

¶ 28. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF SHOPLIFTING AND SENTENCE OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, CHANDLER AND GRIFFIS, JJ., concur.


author: THOMAS, J.,

text:
    DIXIE SOUTH INDUSTRIAL COATING, INC., Appellant, v. MISSISSIPPI POWER COMPANY, Appellee.
    No. 2003-CA-00110-COA.
    Court of Appeals of Mississippi.
    May 11, 2004.

      Dana J. Swan, Clarksdale, attorney for appellant.
    Paul Richard Lambert, Jonathan P. Dyal, R. Mark Alexander, Jr., Gulfport, attorneys for appellee.
   THOMAS, J.,

for the Court.

¶ 1. Dixie South Industrial Coating, Inc. (Dixie) had a contract with Mississippi Power Company (MPC) to remove lead-based paint from a power plant. When MPC failed to allow Dixie to complete the project, Dixie filed a complaint alleging breach of contract. MPC requested and the trial court granted a motion for summary judgment. Dixie perfected an appeal to this Court asserting the following issue as error:

I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AS MATERIAL ISSUES OF FACT REMAINED TO BE RESOLVED BY THE JURY BECAUSE A CONTRACT MAY BE MODIFIED BY PAROL EVIDENCE AFTER IT IS EXECUTED.

Finding no error, we affirm.

FACTS

¶2. Dixie is a Mississippi corporation that is in the business of sandblasting and painting located in Hattiesburg, Mississippi. Dixie also specializes in removing lead-based paint. There are two types of contracts generally entered into by Dixie, “hard money” and “time and materials.” A “hard money” contract is an exclusive contract whereby the parties negotiate a total sum for labor, equipment, materials, and profit. The amount of profit varies by the accuracy of the estimate in relation to the actual amount of labor, equipment, and materials required to complete the project. A “time and materials” contract is a nonexclusive contract where Dixie charges an hourly rate for people and equipment and the other party pays according to the schedule set forth in the contract. A “time and materials” contract does not require a definitive amount of work to be performed. Dixie had previously entered into both types of contracts with MPC.

¶ 3. On December 9, 1997, MPC and Dixie executed a “time and materials” contract in which MPC agreed to pay Dixie its proposed rates for encapsulating lead paint for MPC at Plant Eaton in Petal, Mississippi. The contract indicated that work was to begin in January 1998 and was to be completed on December 31, 1998. Dixie admits that, based on prior dealings with MPC, contracts such as this were simply renewed at the end of the time period and another contract entered into. The contract stated that “time was of the essence” and required all modifications to be in writing. Dixie negotiated the terms of the contract with Phillip Gardner, an engineer at Plant Eaton. Dixie estimated that it would take a crew of thirty to thirty-five people working on the job to complete it in one year.

¶ 4. Work began in January and continued for several weeks with MPC allowing a crew of only five or six people on the job. During this time, Dixie submitted invoices for labor, equipment, and materials used on the project to MPC, which were timely paid. After a few weeks, Gardner contacted Dixie and notified them that MPC was out of money on the project and it would have be halted as only $30,000 had been budgeted for the job. Obie Younce, husband of the president of Dixie, talked with Gardner several times in April or May 1998. According to Younce, Gardner told him that MPC had added funding for the project and that Dixie would soon be able to get back to work. When Younce later inquired about getting'back to work, Gardner told him that the boilers were too hot and Dixie could come back later when the boilers and the weather were cooler. Gardner assured Younce that he liked the work and wanted the same crew to return.

¶ 5. During this time, a windstorm blew over a shack at the job site that belonged to Dixie. Younce was asked to move the shack, but Gardner agreed it was not in their way so Dixie righted the shack and tied it down. Some time shortly after this incident, Gardner notified Dixie that another contractor from Meridian would be coming in to remove the lead-based paint. Dixie filed suit against MPC seeking $5,000,000 in compensatory damages and $5,000,000 in punitive damages. Dixie asserted that oral modifications of the contract or verbal assurances were given indicating Dixie would be given the opportunity to finish the entire project.

¶ 6. In his deposition, Younce admitted that the contract was a “time and material” contract that expired on December 31, 1998, and had not been renewed. Younce also admitted that the contract did not state how many people Dixie was to have on the job, that it was MPC’s right to control the number of people, and the contract did not state that the entire work was to be completed within one year. Younce further admitted that MPC paid every invoice Dixie sent. MPC subsequently filed a motion for summary judgment based solely on the express terms of the contract, evidence of payment of all invoices undér the contract, and the sole testimony of Obie Younce.

¶ 7. In granting MPC’s motion, the trial court found in its findings of fact and conclusions of law that the contract was a “time and material” contract and that MPC paid Dixie for all invoices submitted. Although Dixie claimed that it was verbally assured thht it would be able to complete the entire project, oral modifications or verbal assurances do not modify a written contract.

I. DID THE TRIAL COURT ERR IN GRANTING SUMMARY JUDGMENT AS MATERIAL ISSUES OF FACT REMAINED TO BE RESOLVED BY THE JURY BECAUSE A CONTRACT MAY BE MODIFIED BY PAROL EVIDENCE AFTER IT IS EXECUTED?

¶ 8. Dixie asserts that the trial court erred in granting summary judgment, alleging in its brief that the contract provided that Dixie would remove all of the lead paint at Plant Eaton. Dixie alleges that it relied on Gardner’s assurances to its detriment and that Gardner was acting on behalf of MPC. Dixie kept people on the payroll that worked on the job with MPC and purposely did not take any other bids during the winter because it expected work on Plant Eaton. Dixie asserts that parol evidence only applies to oral agreements prior to the execution of a contract and does not preclude subsequent parol modification of a written contract. Dixie therefore argues that material issues of fact remained to be resolved by the jury.

¶ 9. The standard of review for issues concerning the construction of a contract are questions of law that are reviewed de novo. City of Grenada v. Whitten Aviation, Inc., 755 So.2d 1208, 1214 (Miss.Ct.App.1999). “Legal purpose or intent should first be sought in an objective reading of the words employed in the contract to the exclusion of parol or extrinsic evidence.” Id. (citing Cooper v. Crabb, 587 So.2d 236, 239, 241 (Miss.1991)). This Court is not to infer intent contrary to that in the contract. Cooper, 587 So.2d at 241. “Instead, when construing a contract, the court will read the contract as a whole, so as to give effect to all of its clauses.” Whitten, 755 So.2d at 1214 (citing Brown v. Hartford Ins. Co., 606 So.2d 122, 126 (Miss.1992)). A grant of summary judgment is also reviewed de novo. Boyles v. Schlumberger Technology Corp., 832 So.2d 503, 506(¶ 5) (Miss.2002).

¶ 10. Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). The evidence must be viewed in the light most favorable to the nonmoving party, and that party is to be given the benefit of every reasonable doubt. Smith v. Sanders, 485 So.2d 1051, 1054 (Miss.1986). However, a mere allegation by the nonmovant that a dispute over material facts exists between the parties will not defeat a movant’s otherwise properly supported motion for summary judgment. Reynolds v. Amerada Hess Corp., 778 So.2d 759, 765(¶9) (Miss.2000). In addition, a dispute about a material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.

¶ 11. The Mississippi Supreme Court has set out a three-tiered approach for interpreting contracts. Martin v. Fly Timber Company, Inc., 825 So.2d 691, 696(¶ 11) (Miss.Ct.App.2002) (citing Pursue Energy Corp. v. Perkins, 558 So.2d 349 (Miss.1990)). First, the “four corners” test is applied, wherein the reviewing court looks to the language that the parties used in expressing their agreement. Pfisterer v. Noble, 320 So.2d 383, 384 (Miss.1975). If the language used in the contract is clear and unambiguous, the intent of the contract must be realized. Id. On the other hand, if the contract is unclear or ambiguous, the court should attempt to “harmonize the provisions in accord with the parties’ apparent intent.” Pursue Energy Corp., 558 So.2d at 352. If the court is unable to translate a clear understanding of the parties’ intent, the court should apply the discretionary “canons” of contract construction. Id. However, if the contract continues to evade clarity as to the parties’ intent, the court should consider extrinsic or parol evidence. Id. It is only when the review of a contract reaches this point that prior negotiations, agreements and conversations might be considered in determining the parties’ intentions in the construction of the contract. Martin, 825 So.2d at 696(¶ 11).

¶ 12. The “time and materials” contract that is the basis of this lawsuit is clear and unambiguous. Dixie concedes this fact and does not claim that it was the result of fraud, but only that it was modified by statements allegedly made by MPC engineer Phillip Gardner giving Dixie the exclusive right to return to Plant Eaton to perform the entire task of removing the lead-based paint. This Court does recognize that the parol evidence rule is not a bar to evidence of a subsequent modification of the contract. Kelso v. McGowan, 604 So.2d 726, 731 (Miss.1992). However, Younce admitted in his testimony that MPC had the right to control the number of people working on the project, that the contract did not state that the entire job would be completed within the term of the contract and that it was unlikely to be completed within it, and that Dixie was paid in full for every invoice submitted to MPC.

¶ 13. There is therefore no material issue of fact remaining to be resolved by a jury. The contract between MPC and Dixie was based on a pay schedule with MPC having final control over the work. MPC exercised its control and paid for all work completed by Dixie. The contract expired in December 1998. This issue is without merit.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY GRANTING SUMMARY JUDGMENT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Sharon CLARK, Gracie Hulsey, James W. Rogers, Lynda Eaton, and Sherman Rogers, Individually, and as the Administratrix of the Estate of Patricia Martin, Deceased and on Behalf of All Wrongful Death Beneficiaries of Patricia Martin, Appellants v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellee.
    No. 2003-CA-00094-COA.
    Court of Appeals of Mississippi.
    May 11, 2004.

      Pat M. Barrett, Joseph L. McNamara, Derek Arthur Wyatt, Richard Runft Barrett, Lexington, attorneys for appellants.
    Chad Michael Knight, George H. Ritter, Jackson, attorneys for appellee.
   LEE, J.,

for the Court.

¶ 1. On the morning of June 4, 1996, Patricia Martin left her home in Rankin County for work via her usual route along Old Pearson Road which intersects a railroad crossing. At the crossing, Old Pearson Road runs roughly east and west, and the tracks run roughly north and south. Approximately 289 feet from the crossing is a round railroad advance warning sign. About 250 feet from the crossing a railroad symbol is painted on the roadway. Twenty feet from the track a stop bar is painted on the roadway. Posted between the stop bar and the railroad is a reflectorized railroad crossbuck sign. Martin proceeded across the tracks without stopping to look for a train. Tragically, Martin was struck by a northbound train and was killed. Martin’s wrongful death beneficiaries filed suit against Illinois Central Railroad (“ICRR”) and Richard Whiddon, the train’s engineer.

¶ 2. During the course of litigation, Sharon Clark filed a motion to abandon certain liability theories and to supplement the record with color photographs. In that motion, Clark requested that the court grant her authority to abandon and/or withdraw all theories of liability in this case except for the following: (1) claims based upon sight distance as a result of excessive vegetation growing on Illinois Central’s right of way, and (2) claims based upon the adequacy of the audible warning given of the train’s approach. At the trial, the jury found for the defendants. Clark moved for a new trial pursuant to Rule 59 of the Mississippi Rules of Civil Procedure. The trial court denied the motion, and Clark has appealed, citing nine assignments of error.

GENERAL OVERVIEW OF THE LAW

¶ 3. Duties and obligations at railroad crossings, both on the part of railroad operators and upon automobile drivers, is predominately a matter of statutory law. Mitcham v. Illinois Cent. Gulf R. Co., 515 So.2d 852, 854 (Miss.1987). The principal statute that describes these duties and obligations is found in Mississippi Code Annotated Section 77-9-249, which provides in pertinent part the following:

(1) Whenever any person driving a vehicle approaches a railroad grade crossing under any of the circumstances stated in this section, the driver of such vehicle shall stop within fifty (50) feet but not less than fifteen (15) feet from the nearest rail of such railroad, and shall not proceed until he can do so safely. The foregoing requirements shall apply when:
(a) A clearly visible electric or mechanical signal device gives warning of the immediate approach of a railroad train;
(b) A crossing gate is lowered or when a human flagman gives or continues to give a signal of the approach or passage of a railroad train;
(c) A railroad train approaching within approximately nine hundred (900) feet of the highway crossing emits a signal in accordance with Section 77-9-225, and such railroad train, by reason of its speed or nearness to such crossing, is an immediate hazard;
(d) An approaching railroad train is plainly visible and is in hazardous proximity of such crossing.
(4) At any railroad grade crossing provided with visible railroad crossbuck signs without automatic electric or mechanical signal devices ... the driver of a vehicle shall, in obedience to such railroad crossbuck sign, yield the right-of-way and slow to a speed reasonable for the existing conditions, and shall stop if required for safety at a clearly marked stop line, or if no stop line, within fifty (50) feet, but not less than fifteen (15) feet, from the nearest rail of the railroad, and shall not proceed until he can do so safely.

Miss.Code Ann. § 77-9-249 (Rev.2001).

STANDARD OF REVIEW

¶ 4. Clark’s first four assignments of error stem from the trial court’s instruction of the jury. On appeal, jury instructions are not reviewed in isolation; instead, they are read as a whole to determine if the jury was properly instructed. Payne v. Rain Forest Nurseries, Inc., 540 So.2d 35, 40 (Miss.1989). Defects in specific instructions do not require reversal “where all instructions taken as a whole fairly — although not perfectly — announce the applicable primary rules of law.” Id. However, if those instructions do not fairly or adequately instruct the jury, reversal is appropriate. Id.

¶ 5. Clark also contends that the trial court erred in refusing to admit eight aerial photographs, and in admitting a panoramic photograph offered by ICRR. The supreme court has held that the abuse of discretion standard is proper in reviewing the admission or exclusion of evidence. Fielder v. Magnolia Beverage Co., 757 So.2d 925, 928(¶ 9)(Miss.1999). Finding Clark’s assignments of error to be without merit, this Court affirms the judgment of the trial court.

DISCUSSION

I. DID THE TRIAL COURT ERR IN REFUSING JURY INSTRUCTION P-1?

¶ 6. Jury instruction P-1 reads as follows:

The Court instructs the jury that on June 4, 1996, the railroad crossing at Old Pearson Road where the collision in this case occurred was a public crossing which Mississippi law required Illinois Central to exercise reasonable care in its maintenance so as to make it reasonably safe.

¶ 7. The trial court properly denied this jury instruction. As ICRR argues, this instruction is both vague and misleading. Clark clearly abandoned all claims other than those based on (1) restricted sight distance due to vegetation on ICRR’s right of way and (2) the adequacy of the warning given to sound of the train’s approach. If granted, instruction P-1 would have opened the door to rampant speculation as to potential safety precautions and possible maintenance steps which were not at issue in this trial. In lieu of granting instruction P-1, the trial court granted instruction P-5.

The Court instructs the jury that if you find from a preponderance of the evidence that Illinois Central Railroad Company failed to exercise reasonable care to maintain its right-of-way at the subject crossing with regard to vegetation during the period of time immediately before the accident so that the crossing was not reasonable safe for motorists, in that vegetation growing on the railroad right-of-way unreasonably obstructed motorists’ view of approaching trains, and if you further find by a preponderance of the evidence that such a failure, if any, by Illinois Central was a proximate, contributing cause of the accident, then you must return a verdict for the plaintiffs against Illinois Central Railroad.

This instruction clearly addressed the issue of ICRR’s duty to maintain the vegetation growing on the ICRR right-of-way. In reviewing all of the instructions as a whole, the jury was fairly and adequately instructed as to the applicable law; therefore, this assignment of error lacks merit.

II. DID THE TRIAL COURT ERR IN REFUSING JURY INSTRUCTION P-8A AND IN GRANTING JURY INSTRUCTIONS D-5 AND D-8?

1. Jury Instruction P-8A

¶ 8. Jury instruction P-8A provided as follows:

The Court instructs the jury that Patricia Martin was not under a duty to stop prior to the crossing unless you find from a preponderance of the evidence that the train was plainly visible to her.

¶ 9. The trial court did not abuse its discretion in denying this instruction. Section 77-9-249 of the Mississippi Code outlines the caution that should be exercised by a driver approaching a railroad crossing. Contrary to Clark’s assertion, the statute simply does not provide that a driver is under no duty to stop unless a train is plainly visible. Subpart four specifically addresses a driver’s duty when arriving at a crossing marked only by a crossbuck. This section provides that a driver shall slow down, yield the right-of-way, and stop if required for safety. Miss. Code Ann. § 77-9-249(4) (Rev.2001). The jury instruction offered by Clark clearly ignores this duty; therefore, the instruction neither fairly nor adequately instructs the jury as to the applicable law. The trial court did not abuse its discretion in refusing this instruction.

2. Jury Instruction D-5

¶ 10. Clark argues that the trial court erred in granting jury instruction D-5, arguing that when coupled with instruction D-8, these instructions effectively directed a verdict for ICRR. Again, in reviewing all of the instructions as a whole, this Court cannot find that the jury was improperly instructed. Instruction D-5 accurately follows the language of Section 77-9-249. The jury was not improperly instructed as to the applicable law.

3. Jury Instruction D-8

¶ 11. As submitted, jury instruction D-8 read, in pertinent part, as follows: “The Court instructs you that a driver approaching a railroad crossing which is in plain view and equipped with a stop sign is not permitted to drive at the maximum allowable speed without regard to the fact that she is approaching a railroad crossing.”

¶ 12. Clark’s attorneys objected to the instruction on the ground that there was a crossbuck, and not a stop sign at the railroad crossing. The trial court replaced “stop sign” with “crossbuck.” Clark’s counsel did not object further to the instruction.

¶ 13. The Mississippi Rules of Civil Procedure outline the obligation of counsel to memorialize on the record any objections to jury instructions.

No party may assign as error the granting or the denying of an instruction unless he objects thereto at any time before the instructions are presented to the jury; opportunity shall be given to make the objection out of the hearing of the jury. All objections shall be stated into the record and shall state distinctly the matter to which objection is made and the grounds therefor....

M.R.C.P. 51(b)(3). Clark’s counsel clearly indicated their objections to this instruction, and the trial court promptly modified the instruction accordingly. Clark was given the opportunity to object to instruction D-8 as amended and failed to do so. Clark’s failure to object at the trial level constitutes a waiver to raise the issue on appeal. Mitchell v. Broadway Transfer & Storage Co., 749 So.2d 289, 290(¶ 7)(Miss.Ct.App.1999).

¶ 14. The trial court did not abuse its discretion in granting instructions D-5 and D-8 and in refusing an instruction which was an inaccurate representation of the law. The jury was adequately instructed as to a driver’s duty when approaching a railroad crossing; accordingly, the Court finds that this assignment of error lacks merit.

III. DID THE TRIAL COURT ERR IN REFUSING JURY INSTRUCTIONS P-8 AND P-8 AND IN GRANTING JURY INSTRUCTION D-13(A)?

¶ 15. Clark contends that the trial court erred in rejecting both instruction P-3 and instruction P-8. Instruction P-3 provided as follows:

You are further instructed that both Illinois Central Railroad Company and its engineer Richard Whiddon were under a duty to exercise reasonable care in the operation of their train for the safety of motorists using the Old Pearson Road crossing at the time of the collision, including sounding a reasonably adequate audible warning of the train’s approach to the Old Pearson Road crossing, beginning at least 900 feet prior to the crossing.

Instruction P-8 also addressed the adequacy of the warning whistle.

The Court instructs the jury that if you believe from a preponderance' of the evidence that the locomotive engineer Richard Whiddon failed to sound a reasonable adequate audible warning of the train’s approach to the Old Pearson Road crossing where the collision happened, and that such failure, if any, was a proximate, contributing cause of the collision, then you must return a verdict for the plaintiffs against the defendant Illinois Central Railroad Company, and you may also return a verdict against Richard Whiddon.

¶ 16. This Court does not consider rejected jury instructions in a vacuum. Wright v. Stevens, 445 So.2d 791, 795 (Miss.1984). Instead, this Court looks to all the instructions given, and considering the court’s total charge to the jury, if the point encompassed by the rejected instruction was fairly included in other instructions given to the jury, reversal is not required. Id. at 795.

¶ 17. The rejection of these two instructions was proper on at least two grounds. First, the language of instruction ' P-3 muddies the statutory guidelines outlining an approaching train’s duty to warn, while instruction P-8 altogether ignores it. Section 77-9-225 clearly requires that a train approaching a crossing “shall cause the bell to be rung or the whistle or horn to be blown at the distance of at least three hundred (300) yards from the place where the railroad crosses over any public highway or municipal street.” Miss.Code Ann. § 77-9-225 (Rev.2001). Instructions P-3 and P-8 substitute ambiguous language for the-standard clearly enunciated in the statute.

¶ 18. Additionally, the duty encompassed in instructions P-3 and P-8 was adequately and accurately addressed in instruction D-13(a), which addressed ICRR’s duty to warn of its approach in light of the statutory guidelines. Accordingly, this Court finds that this assignment of error lacks merit as well.

IV. DID THE TRIAL COURT ERR IN GRANTING JURY INSTRUCTION D-7?

¶ 19. Clark argues that the trial court erred in granting jury instruction D-7. Clark objected to the submitted instruction for two reasons, the first of which was that the instruction referred to the wrong type of vehicle. Additionally, the original instruction provided that Martin was under a duty to stop her vehicle if the train was blowing its horn and presented an immediate hazard ór the approaching train was clearly visible and in hazardous proximity to the crossing. The trial court corrected both of these errors, first by changing the referenced vehicle, and next by changing the “or” to “and.” Having reviewed these changes, Clark’s attorney stated that he had no further objections to this, instruction.

¶ 20. As addressed in Section II, a party must object on the record to a submitted jury instruction, and the party must distinctly state his grounds for the objection. M.R.C.P. 51(b)(3). Clark clearly indicated two objections to this instruction, and the trial court edited the instruction accordingly. Clark was given the opportunity to object to instruction D-7 as amended and failed to do so. This failure to object at the trial level constitutes a waiver of the issue on appeal. Mitchell, 749 So.2d at 290.

V. DID THE TRIAL COURT ERR IN GRANTING ICRR’S MOTION IN LIMINE AS TO VEGETATION AND WARNING DEVICES?

¶ 21. Clark’s fifth and sixth assignments of error stem from the trial court’s granting ICRR’s motion in limine excluding any claim, evidence, or argument that additional or different warning devices should have been installed. Because the instruction D-9 was a cautionary instruction granted due to Clark’s violation of this order, this Court will first discuss the validity of the order.

¶ 22. We use the abuse of discretion standard in reviewing the admission or exclusion of evidence. Thompson Mach. Commerce Corp. v. Wallace, 687 So.2d 149, 152 (Miss.1997). The trial court does not abuse its discretion in granting a motion in limine if the court determines that (1) the material or evidence in question will be inadmissible at trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury. Whittley v. City of Meridian, 530 So.2d 1341, 1344 (Miss.1988) (adopting the test set forth by the Kansas Supreme Court in State v. Quick, 226 Kan. 308, 311, 597 P.2d 1108 (1979)).

¶ 23. Clark argues that the trial court erred in granting ICRR’s motion in limine, which prevented counsel from arguing, suggesting or offering evidence or testimony that the type of warning device present at the crossing supports their contention that ICRR negligently maintained the vegetation on its right-of-way.

¶24. The trial court clearly did not abuse its discretion in granting the order precluding evidence or testimony regarding the sufficiency of the warning device at the crossing. The first criteria under Whittley is whether or not the material in question would be inadmissible. Because Clark limited her theories of recovery, any evidence or material relating to the adequacy of the warning signs would be irrelevant and therefore inadmissible. M.R.E. 402 (all relevant evidence is admissible, all irrelevant evidence is inadmissible). The second criteria under Whittley is whether the offer or reference would tend to prejudice the jury. Alluding that ICRR could have constructed more adequate warning signs would most certainly have prejudiced ICRR. The trial court did not abuse its discretion in precluding evidence regarding inadequate warning devices.

VI. DID THE TRIAL COURT ERR IN GRANTING JURY INSTRUCTION D-9?

¶ 25. Clark argues that the trial court erred in granting instruction D-9, which was a cautionary instruction advising the jury that the warning devices and warning signs were adequate as a matter of law. Specifically instruction D-9 provided as follows:

The Court instructs the jury that the warning devices and signs at the crossing were adequate as a matter of law and you may not find the Defendants negligent for failing to install additional or different warning devices.

¶ 26. Clark argues that the instruction was confusing and misleading to the jury and unfairly prejudicial to the Plaintiffs because “the adequacy of the signals at the crossing where Patricia Martin was killed was not an issue in the case and therefore was irrelevant.” Clark is correct in asserting that the adequacy of the signals at the crossing was irrelevant. However, during the course of the trial counsel clearly broached the subject and violated the order precluding such information during his cross-examination of ICRR’s corporate representative, Kenneth Robinson.

Q. Okay. Mr. Robinson, would you agree that Ms. Martin had only two ways to know that a train was coming? She would either see it or hear it?
A. I would agree with that if she was listening and looking.
Q. Yes, sir. If she was listening and looking, is there anyway she could have known a train was coming other than to hear or see it?
A. Other than the fact thát she lived in the area. She was familiar with the crossing. She had been over it many, many times....
Q. Yes, sir. Did any of the signs present at that crossing on June 4, '96 tell Patricia Martin that a northbound train was coming at that crossing at 38 to 48 miles per hour?
BY MR. RITTER: Excuse me, Your Honor. I am going to object to that. The Court ruled that the warning signs are adequate as a matter of law. Mr. Barrett knows that, and it was raised prior to trial.
BY THE COURT: Sustained.

¶ 27. A trial court may give a cautionary instruction when a party improperly injects inadmissible evidence into a trial before a jury. Young v. State, 831 So.2d 585 (Miss.Ct.App.2002). If the inadmissible evidence causes irreparable harm, the court has full discretion to declare a mistrial; however, if the inadmissible evidence is less than irreparably harmful, the court may cure the harm by issuing appropriate instructions. Id., at 587. The cautionary instruction was granted due to Clark’s attempt to elicit testimony regarding the adequacy of the signals at the crossing where Martin was killed. This Court finds that the trial court did not abuse its discretion in granting the cautionary instruction; therefore, this assignment of error fails as well.

VII. DID THE TRIAL COURT ERR IN REFUSING TO ADMIT INTO EVIDENCE EIGHT AERIAL PHOTOGRAPHS OF THE CROSSING?

¶28. It is well settled in this State that the admission of photographs is a matter left to the sound discretion of the trial judge and that his decision favoring admissibility will not be disturbed absent a clear abuse of that judicial discretion. Hart v. State, 637 So.2d 1329, 1335 (Miss.1994). The trial court excluded the eight photographs for a number of reasons, namely (1) the pictures were not produced to counsel opposite until August 2002 although the pictures were taken during 1997 and requested during discovery shortly thereafter; (2) the pictures did not depict the view of either the vehicle or the train engineer; (3) some pictures were taken from angles at which the road was not visible; (4) the pictures were prejudicial; and (5) the pictures were cumulative. Clark has failed to show a clear abuse of the trial court’s discretion in admitting one of nine aerial photographs. Accordingly, this assignment, is without merit as well.

VIII. DID THE TRIAL COURT ERR IN ADMITTING INTO EVIDENCE THE PANORAMIC PHOTOGRAPH TAKEN BY ICRR RISK MANAGER?

¶ 29. As discussed, supra, the trial court is' granted broad discretion regarding the admissibility of photographs. Clark argues that the trial court erred in admitting a panoramic picture of the accident scene because the picture distorted the accident scene. Four witnesses verified that the picture accurately depicted the view an eastbound motorist would have if they were looking towards the south. This Court finds no abuse of discretion in admitting the panoramic photograph.

IX.DID THE TRIAL COURT ERR IN PROHIBITING CLARK’S COUNSEL DURING CLOSING ARGUMENT FROM MAKING CALCULATIONS USING MILES PER HOUR, FEET PER SECOND, AND TIME COVERED IN TRAVELING A FIXED DISTANCE?

¶30. Clark’s final contention is that the trial court erred in prohibiting counsel from using mathematical calculations which were not supported by expert testimony during closing arguments. The record on appeal must affirmatively show that the point complained of was presented to the trial court and the trial court ruled adversely to the appellant. Pennington v. Dillard Supply, Inc., 858 So.2d 902(¶ 6) (Miss.Ct.App.2003). “The appellant has the duty of insuring that the record contains sufficient evidence to support his assignments of error on appeal.” Oakwood Homes Corp. v. Randall, 824 So.2d 1292(¶ 4) (Miss.2002). “Facts asserted to exist must and ought to be definitely proved and placed before us by a record, certified by law; otherwise, we cannot know them.” Id. In this case, the closing arguments were not included in the record before this Court,' nor did Clark make a proffer of the information she was prohibited from arguing in closing. Clark should have included the necessary information in the record. Because Clark has failed to do so, this error is not properly before the Court, and we are unable to consider this assignment of error.

CONCLUSION

¶ 31. The record before this Court presents a tragic and senseless loss of life. This case was ably and zealously litigated by both sides; however, on the record before us, none of the assignments of error merit reversal.

¶ 32. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS ARE TAXED TO THE APPELLANTS.

KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., THOMAS, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


text:
    Charles H. WILLIAMS, Jr., Appellant v. Pope KELLY and Wife, Jeanette Kelly, Appellees.
    No. 2003-CA-00086-COA.
    Court of Appeals of Mississippi.
    May 11, 2004.

      Brent E. Southern, Ridgeland, attorney for appellant.
    James H. Herring, attorney for appel-lees.
   LEE, J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. While Charles Williams, Jr., was building a home in Madison County, he was approached by Chris and Patty Fudge, who offered to purchase the home from Williams. Williams sold the home to the Fudge family on May 1,1996. In June 1998 the Fudges sold the home to Pope and Jeanette Kelly. Soon after the Kellys purchased the home, the house began to show serious structural problems.

¶ 2. On June 25, 2001, the Kellys filed suit in the Chancery Court of Madison County, naming Chris and Patty Fudge as defendants. The Kellys alleged that the Fudges had defrauded them by concealing the serious structural problems and foundation defects that existed in the house at the time the house was sold.

¶ 3. During discovery, the Kellys subpoenaed Williams to appear at a deposition. On January 2, 2002, Williams (who was not then a party to the action) gave deposition testimony regarding his construction and subsequent sale of the house. Based upon information gleaned from the deposition and other discovery, the Kellys requested permission to amend the complaint and join Williams as a defendant. The trial court granted the amendment on February 22, 2002.

¶ 4. The amended complaint naming Williams as a defendant was filed on March 1, 2002. The amended complaint alleged Williams breached his implied warranty that the house was built in a workman-like manner and was suitable for habitation. The amended complaint also alleged that Williams was guilty of negligence in constructing the house, resulting from non-compliance with acceptable building standards.

¶ 5. On June 12, 2002, the Kellys filed a motion for additional time to serve Williams, and the trial court granted the Kellys an additional 120 days to attain personal service on Williams. Williams was in Ohio on business; however, he was personally served on July 19, 2002.

¶ 6. Events over the next few days are in dispute. Williams alleges that his attorney attempted to contact the Kellys’ attorney a number of times during the month of August. The Kellys’ attorney argues that he did not receive any communication from either Williams or his attorney. On August 21, 2002, the Kellys moved for a default judgment against Williams based upon his failure to plead, answer, or otherwise defend against the suit. On that same date, the Kellys filed their application to the clerk for a default judgment. The clerk accordingly made an entry of default on the docket, the chancellor granted the Kellys the default judgment, and the clerk filed the judgment of default. Also on August 21, Williams entered an appearance in the case, reserving the right to file a formal response to the complaint and assert all defenses available. However, the document was not stamped “filed” until August 23, 2002. The trial docket reflects that on September 5, 2002, the Kellys filed an answer to Williams’s motion to set aside the default judgment. On September 10 the docket reflects an order denying the motion to set aside the default judgment. Williams’s motion to set aside the default judgment was not docketed until September 16, 2002. Williams filed his motion to reconsider on September 23, and the motion was denied. Williams now appeals the trial court’s decision to grant the default judgment and the trial court’s denial of his motion to reconsider.

STANDARD OF REVIEW

¶ 7. “[T]he decision to grant or set aside a default judgment is addressed to the sound discretion of the trial court.” Williams v. Kilgore, 618 So.2d 51, 55 (Miss.1992) (citing Pointer v. Huffman, 509 So.2d 870, 875 (Miss.1987)). The discretion must be exercised in conformity with the rules set forth in rules 55(c) and 60(b) of the Mississippi Rules of Civil Procedure. Guar. Nat'l Ins. Co. v. Pittman, 501 So.2d 377, 388 (Miss.1987). This Court has no authority to disturb the trial court’s exercise of its discretion, absent a firm conclusion on our part that discretion has been abused. See Wilson v. South Cent. Miss. Farmers, Inc., 494 So.2d 358, 360 (Miss.1986). Thus, to successfully contest the default judgment, Williams must clearly show that the trial court abused its discretion in granting the default judgment.

¶ 8. A motion to set aside a default judgment or an order may be made under Mississippi Rule of Civil Procedure 60(b). Relief may be granted upon a sufficient showing of fraud, mistake, or other justifiable reason. M.R.C.P. 60(b). Generally a Rule 60(b) motion will not be granted unless a three-pronged “balancing” test is satisfied. Under this test, the court must determine: (1) whether the movant’s basis for requesting relief is legitimate (e.g., whether a justifiable reason is evidenced); (2)whether the movant has a colorable defense to the merits of the adjudged case; and (3) whether the non-movant will be unduly prejudiced if the motion is granted. Ex rel. Rich v. Nevels, 578 So.2d 609, 613 (Miss.1991) (citing King v. King, 556 So.2d 716, 719 (Miss.1990)).

¶ 9. In determining whether the trial court has abused its discretion in setting aside a default judgment, this court considers three factors: (1) whether the defendant has good cause for default; (2) whether the defendant in fact has a colorable defense to the merits of the claim, and (3) the nature and extent of prejudice which may have been suffered by the plaintiff if the default is set aside. Williams, 618 So.2d at 55.

DISCUSSION OF ISSUES

I. DID THE DEFENDANT HAVE GOOD CAUSE FOR DEFAULT?

¶ 10. In the case sub judice, Williams argues that he attempted to contact the Kellys’ counsel a number of times before the default judgment was entered. These attempts to communicate do not, however, explain why an answer was not timely filed.

¶ 11. Instead of explaining a cause for the default, Williams argues that he was entitled to notice of the default because he effectively appeared in the case by testifying at a deposition, although he was not yet a party to the action. Williams also argues that his attorney’s attempts to contact the Kellys’ attorney constitute an appearance which would entitle him to notice of the application for default. Williams cites Holmes v. Holmes, 628 So.2d 1361 (Miss.1993), in support of these contentions; however, Williams is incorrect.

¶ 12. Holmes does not support the contention that a person who appears for a deposition pursuant to a subpoena has entered an appearance in a case in which he is not yet named as a party. Furthermore, Holmes does not extend to cover Williams’s attorney’s alleged attempts to contact the Kellys’ attorney.

¶ 13. In Holmes, the wife’s attorney sent a letter to the husband’s attorney indicating the wife’s willingness to reach a settlement and hér intent to defend as necessary in the suit. The husband’s attorney, with knowledge' of the letter, moved for default. The supreme court determined that the wife was entitled to notice of the application for default judgment since she had effectively entered an appearance through the letter sent by her attorney.

¶ 14. The ease sub judice is easily distinguished from Holmes. In Holmes, unlike the case at bar, the attorney for the husband and the attorney for the wife were in communication with one another, and the communication specifically centered around defending the case and the possibility of settling the case. Although Williams alleges he called the Kellys’ lawyer a number of times, the record does not reflect that Williams communicated either his desire to defend or his desire to settle the matter. The inability to contact plaintiffs’s counsel does not annul a defendant’s obligation to timely answer under Mississippi Rules of Civil Procedure Rule 12. This contention lacks merit; therefore, this factor weighs in.favor of the default judgment.

II. DOES THE DEFENDANT HAVE A COLORABLE DEFENSE TO THE MERITS OF THE CLAIM?

¶ 15. Williams cites excerpts from his deposition to support his contention that he possesses a colorable defense to the merits of the claim. Williams cites his testimony that he had a professional inspection of the home during its construction. Williams testified that the Fudges had their own inspection of the home. Williams also cites portions in his deposition that discuss the type of foundation reinforcements he used to prevent the home from settling. These inspections and the precautions taken to prevent settling do not absolve Williams’s responsibility for failing to determine whether or not Yazoo clay was present in the soil. George B. Gilmore Co. v. Garrett, 582 So.2d 387, 393 (Miss.1991).

¶ 16. Williams has not broached any other potential defense to the Kellys’ claim against him, choosing instead to focus on his attempts to contact the Kellys’ counsel. Accordingly, this factor weighs in favor of the default judgment.

III. WHAT IS THE NATURE AND EXTENT OF THE PREJUDICE SUFFERED BY THE PLAINTIFFS IF THE DEFAULT IS SET ASIDE?

¶ 17. The chancellor determined that this one element weighed in favor of Williams, finding that the Kellys would suffer little, if any, harm if the default judgment were set aside. However, this one factor, does not outweigh Williams’ failure to meet the factors previously discussed.

¶ 18. In sum, Williams argues that the default judgment should be set aside because he tried to call the Kellys’ counsel a number of times and because the Kellys will not be unduly prejudiced if the default judgment is set aside. Although this Court does not favor default judgments, we find that Williams has failed to show that the chancellor abused his discretion in granting the default judgment. Williams has not shown good cause for failing to answer, and Williams has not shown that he has a colorable defense to the suit. Accordingly, the judgment of the trial court is affirmed.

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

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


text:
    Owen BROWN, Appellant, v. Kay BROWN, Appellee.
    No. 2003-CA-00039-COA.
    Court of Appeals of Mississippi.
    May 11, 2004.
    David S. Van Every, attorney for appellant.
    Carrie A. Jourdan, Columbus, attorney for appellee.
   IRVING, J.,

for the Court.

¶ 1. Owen Brown appeals from a judgment of the Chancery Court of Lowndes County dismissing his Rule 60(b) motion to set aside the judgment of divorce rendered upon a complaint filed by his wife, Kay Brown. In his appeal, he asserts a single issue: whether the chancellor abused her discretion in failing to set aside the judgment of divorce against him since he had personally appeared in court on temporary matters and subsequently received no notice of the trial on the merits. .

¶ 2. Ascertaining reversible error, we reverse and remand.

FACTS

¶ 3. On October 22, 2001, Kay Brown filed in the Chancery Court of Lowndes County a complaint for divorce seeking a divorce on grounds of adultery, or alternatively, irreconcilable differences. Kay also sought temporary relief pending the hearing on the divorce. Owen was served with a Rule 4 summons on November 6, 2001. On the same date, he was also served with a Rule 81 summons directing him to attend a hearing on November 26, 2001, regarding the temporary relief sought.

¶ 4. At the November 26 hearing, Kay and her counsel appeared before the chancellor, as did Owen, who was being represented pro se. The chancellor, through an executed agreed order, continued the hearing to November 30, 2001, to allow the parties to file affidavits and financial statements on the temporary matters. Owen failed to file his affidavit and financial statement by the November 30 deadline and failed to answer the complaint.

¶ 5. On January 14, 2002, a hearing was held on the complaint for divorce, but Owen was not present. At trial, Kay testified regarding the existence of an adulterous relationship between Owen and another women. A witness corroborated Kay’s testimony. Consequently, the chancellor granted the divorce on the grounds of adultery and also awarded other relief.

¶ 6. Owen subsequently filed a motion to set aside the judgment of divorce, and the chancellor summarily denied same. This appeal followed.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. The scope of review in domestic matters is limited, and this Court will not disturb the findings of a chancellor unless those findings are clearly erroneous or an erroneous legal standard was applied. Lindsey v. Lindsey, 818 So.2d 1191, 1192(¶ 4) (Miss.2002).

¶ 8. Mississippi divorce actions are governed by the divorce and alimony provisions of Title 93, Chapter 5 of the Mississippi Code of 1972 as amended and revised. See Miss.Code Ann. §§ 93-5-1 to -33 (Rev.1994). The procedural provisions of this chapter limit the applicability of the Mississippi Rules of Civil Procedure, which govern only where the divorce statutes stand silent. M.R.C.P. 81(a)(9).

¶ 9. Owen argues that he was entitled to notice of the January 14, 2002 divorce proceeding. Because he did not receive notice of the proceeding, he concludes that the chancellor erred when she subsequently denied his motion to set aside the judgment of divorce. Kay argues that Owen never manifested a clear intent to contest the divorce action. In support of her position, she specifically points out Owen’s failure to file the court-requested affidavit and an answer to the complaint.

¶ 10. Both parties have addressed this issue through an analysis of default judgments pursuant to Rule 55(a), (b), and (c) of the Mississippi Rules of Civil Procedure. However, we find that the procedural arguments of both parties are off-track. A default judgment is one entered without regard to the merits of the plaintiffs claim, and as a general rule, the failure of a party to answer a complaint opens the party to a default judgment. King v. Sigrest, 641 So.2d 1158, 1161 (Miss.1994). Our law is clear that default judgments are not permitted in divorce cases. Rawson v. Buta, 609 So.2d 426, 431 (Miss.1992). However, our supreme court has explained that a “special kind of default judgment” may be given in uncontested actions for divorce so long as the proceeding is heard in open court and “the claimant establishes his claim or right to relief by evidence.” Mayoza v. Mayoza, 526 So.2d 547, 548 (Miss.1988); see also Miss.Code Ann. § 93-5-17 (Rev.1994); M.R.C.P. 55(e). Our supreme court further elaborated that “[bjecause of the special nature of a divorce proceeding, a defendant is not barred from defending the action upon failure to answer the complaint.” Id. at 432.

¶ 11. Although Owen did not file an answer in case sub judice, his failure to do so is not solely determinative of whether the chancellor erred in failing to grant his motion to set aside the judgment of divorce. The question, therefore, becomes whether Owen’s appearance at the November 26, 2001 hearing on temporary matters was sufficient to demonstrate his intent to defend in the divorce action. We find that it was. Therefore, since Owen had appeared in the case, and a date for the hearing on the merits of the divorce complaint had not been set when he appeared, he was entitled to notice of the date of the subsequent trial setting.

¶ 12. The chancellor summarily denied Owen’s motion to set aside the judgment of divorce despite his assertions that he received no notice of the hearing on the merits. None of the statutory divorce provisions speak to the precise fact situation which we have before us. Therefore, we find that Rule 40(b) of the Mississippi Rules of Civil Procedure has some limited applicability here. This rule provides in pertinent part as follows:

The court shall provide by written direction to the clerk when a trial docket will be set.... The clerk shall within three (3) days after a case has been placed on the trial docket notify all parties who were not present personally or by their attorney of record at the docket setting as to their trial setting. Notice shall be by personal delivery or by mailing of a notice within said three (3) day period. Matters in which a defendant is summoned to appear and defend at a time and place certain pursuant to Rule 81 or in which a date, time and place for trial have been previously set shall not be governed by this rule.

M.R.C.P. 40. The comment to the rule states that the rule “establishes an orderly but flexible method of scheduling cases for trial, while assuring that the parties receive appropriate notice at important stages of the process.” M.R.C.P. 40 cmt.

¶ 13. Although we find that Rule 40(b) has some limited applicability, we want to be clear that we refer only to the provision requiring that notice be given after a case has been placed on the trial docket or set for trial. We are in no way suggesting, intimating or holding that the date of a divorce trial must be set on the trial docket at least twenty days prior to trial. We are fully aware that in many instances, if not most, complaints for divorce may be set for trial outside of the normal docket setting of the civil trial docket because a divorce case may not be “set down on the issue docket unless upon the request of one of the parties.” Miss.Code Ann. § 93-5-7 (Rev.1994). We simply hold that once a party has appeared in a temporary phase of the divorce proceeding, he is entitled to notice of the subsequent hearing on the underlying divorce proceeding unless, during the temporary proceeding, he was so notified.

¶ 14. It is clear that the judgment of divorce, which was entered on February 27, 2002, relates back to a trial on the merits that was held on January 14, 2002. However, neither Kay nor the record explains how, and under what circumstances, this January 14, 2002 trial date was set. The docket index does not reflect an order setting the trial on the merits. In fact, Kay does not contest that Owen did not receive notice of the January 14, 2002 hearing. She argues only that he never manifested a clear intent to contest the divorce action. We reject this argument as not being supported by the facts here.

¶ 15. We, therefore, find that the refusal of the chancellor to grant the motion to set aside the judgment pursuant to Mississippi Rules of Civil Procedure 60(b)(6) was an abuse of discretion. This Court remands this case to the chancery court for a new hearing on the merits whereby Owen is given sufficient notice of the proceeding.

¶ 16. THE JUDGMENT OF THE CHANCERY COURT OF LOWNDES COUNTY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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