author: | JAMES L. CANNELLA, Judge.

text:
    Sidney JONES v. GILBERT SOUTHERN CORPORATION.
    No. 04-CA-213.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 31, 2004.
    Rehearing Denied Sept. 27, 2004.

      Juge, Napolitano, Guilbeau, Ruli & Frie-man, Frank R. Whiteley, Keith E. Pittman, Metairie, LA, for Appellant.
    Dazet & Associates, Daniel J. Dazet, Baton Rouge, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY and JAMES C. GULOTTA, Pro Tempore.
   | JAMES L. CANNELLA, Judge.

The Defendant, Gilbert Southern Corporation, appeals from a workers’ compensation judgment in favor of the Plaintiff, Sidney Jones. We reverse in part, amend in part, and affirm as amended.

On July 5, 2001, the Plaintiff began working with the Defendant as a welder on a project constructing a power plant in Carville, Louisiana. In August of 2001, he began seeing doctors for pain in the extremities, limping, numbness and joint pain. It was initially thought by the emergency room doctor at River Parishes Hospital, Dr. Ronald Waguespack, the Plaintiffs family practitioner, and Dr. Yaw Twum-Antwi, an internist, that he had some type of arthritis, osteoarthritis or bursitis and he was tested for rheumatoid arthritis. X-Rays were negative for spinal involvement and no .tests were conducted relative to his neck or lumbar spine. He continued to work during this period, but as noted by his supervisor, Kenneth Leg-gion, Sr. (Leggion), the Plaintiff began complaining at work of feeling tired and his work quality began to decline. He underwent a magnetic resonance imaging (MRI) test and was referred to Dr. Gregory Dowd, a neurosurgeon, who concluded that he had a disc problem requiring surgery. |aThe surgery was performed on September 14, 2001. Afterwards, the Plaintiff collected his last paycheck from the Defendant and informed Leggion that he needed time off due to the operation. His last work day was September 3, 2001. His medical expenses were paid by his health insurer, the premiums for which had been fully paid by the Defendant.

On April 18, 2002, the Plaintiff filed a Disputed Claim for Compensation. The matter was heard on October 29, 2003. On December 12, 2003, the workers’ compensation judge found that the Plaintiff suffered a compensable work related injury, and awarded him temporary, total disability from his last working date and continuing. He found the Plaintiff to be entitled to all related and reasonable medical expenses and further found that he is entitled to penalties in the amount of $2,000 and attorney’s fees of $2,000.

On appeal, the Defendant contends that the workers’ compensation judge erred in finding that the Plaintiff proved the occurrence of a work related injury and by failing to find that the Plaintiff made willful misrepresentations under oath for the purposes of obtaining workers’ compensation benefits. The Defendant further asserts that the workers’ compensation judge failed to acknowledge a stipulation that the Defendant is entitled to a set-off against the payments made by the health insurer and in awarding penalties and attorney’s fees.

The manifest error standard of review applies to factual findings in a workers’ compensation ease. Chaisson v. Cajun Bag & Supply Co., 97-1225, p. 13 (La.3/4/98), 708 So.2d 375, 380; Hookfin v. Advantage Nursing Services, Inc., 03-340, p. 3 (La.App. 5th Cir.10/15/03), 860 So.2d 57, 59, writ denied 03-3136 (La.1/30/04), 865 So.2d 85. In applying the manifest error-clearly wrong standard, we must determine not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one. Chaisson, 97-1225 at 13; 708 So.2d at 380; Hookfin, 03-340 at 3, 860 So.2d at 59. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, even though we may feel that our own evaluations and inferences are as reasonable. Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993); Hookfin, 03-340 at 3, 860 So.2d at 59. Thus, if there are two permissible views of the evidence, a factfinder’s choice of them can never be manifestly erroneous or clearly wrong. Chaisson, 97-1225 at 14, 708 So.2d at 381; Hookfin, 03-340 at 4, 860 So.2d at 59. Accordingly, if the factfin-der’s findings are reasonable in light of the record, the appellate court may not reverse or modify the judgment. Chaisson, 97-1225 at 4, 708 So.2d at 381; Hookfin, 03-340 at 4, 860 So.2d at 59.

WORK RELATED INJURY

La.R.S. 23:1021(1) defines an accident as, “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.”

According to the Plaintiff, he and Chris Owen (Owen), a co-worker, were working 65 feet in the air standing on a scaffold one day in July of 2001. He did not remember the exact day and said it was somewhere around the 20th, 21st or 22nd. Late in the day, near quitting time, they found that they needed the Porta-Power jack, which is used to dislodge metal. Owen went to get it. The Plaintiff said that Owen tied the jack to some rope before climbing back up the scaffold. Once there, the two men hauled the jack up hand over hand, without the help of a pulley. The Plaintiff felt tightness in his shoulder, but believed it was a normal ache from working a long day. He thought that it would go away and did not think it important. When his symptoms appeared, he did not connect them to the | ^incident with the jack. He first went to seek medical attention at River Parishes Hospital on August 8, 2001 because the pain was causing him to limp. X-rays were taken that were negative and the doctor there diagnosed the Plaintiff with arthritis. The Plaintiff still did not connect the incident to his symptoms. He thereafter went to Drs. Waguespack and Twum-Antwi, who focused on arthritis as the cause. He subsequently went to the Prevost Memorial Hospital emergency room where he saw the emergency room doctor. The Plaintiff said that he told the doctor about the incident with the Porta-Power jack, but that the other doctors all thought he had arthritis. The doctor ordered a MRI and referred him to Dr. Dowd. Dr. Dowd diagnosed the cervical disc problem and set up the surgery. In that first visit, he informed the doctor about pulling up the jack. The Plaintiff has not been unable to return to work since then. He is facing a possible second surgery, if his condition does not improve.

The Plaintiff testified at trial that he thought he told some of the doctors about pulling up the Porta-Power jack. He also claimed that he told Leggion about the incident when he picked up his check after his surgery. However, in his deposition, the Plaintiff denied telling anyone about the incident with the Porta-Power jack until Dr. Dowd. The Plaintiff admitted that when he was hired, he went through safety training and was instructed to report any accident, no matter how small. In addition, every day on his time card, he checked no to the printed question, “Injury today?” At trial, the Plaintiff was confused when questioned about the discrepancies between his deposition and the trial testimony. He explained that his mind was not working right and his memory was faulty since the surgery. In his deposition, he also indicated that he had not related the incident to his symptoms, because the doctors were telling him that he had some type of arthritic condition.

[fiLeggion testified that the Plaintiff was not required by the job description to pick up any equipment, such as a jack, except his welding tools. He stated that sometime in July or early August, the Plaintiff began to complain about being tired all of the time and his work started to suffer. He took off work for a few days to try to recuperate, which is not uncommon among these workers because they work hard for long hours. The Plaintiff returned to work. Approximately one week before he left the job, Leggion questioned the Plaintiff about his condition because his work was not improving. Leggion stated that the Plaintiff said that he had suffered some injuries in a car accident in the past and maybe those were acting up. He did not tell Leggion about the incident with the Porta-Power jack. In September, after the operation, the Plaintiff went to the site to pick up his check. He informed Leg-gion then that he had undergone surgery and asked for a reduction of force termination due to his inability to return to work. Leggion agreed to do so and did not ask what type of surgery the Plaintiff underwent. Afterwards, Leggion and the other workers subsequently collected money for the Plaintiff to help him financially. Leggion claimed that the Plaintiff still never informed him about the jack incident.

Dr. Waguespack testified that he had been treating the Plaintiff since 1976 for various ills. On August 11, 2001, he saw the Plaintiff for complaints of left shoulder pain and arm and leg numbness. Doctor Waguespack thought that the Plaintiff had bursitis. He stated that the Plaintiff did not mention any work incident. Dr. Wag-uespack noted that it was possible that he failed to ask about a traumatic event, but stated that it was more likely that he did ask, because it was his practice to do so, given the symptoms. However, he also testified that he took a “problem oriented history,” which was specific to the symptoms, and noted that some patients do not disclose possible incidents causing problems because another doctor may be involved and some patients are secretive.

l7Pr. Twum-Antwi testified that he first saw the Plaintiff on August 14, 2001, six days after the Plaintiff saw Dr. Wagues-pack. At that time, the Plaintiff complained of joint pain that he said started approximately two weeks before. During his examination, he discovered that the Plaintiffs neck was painful on the left side when turned. Because the doctor focused on joint pain, he tested the Plaintiff for rheumatoid arthritis or osteoarthritis. The tests were negative and he diagnosed the Plaintiff with “arthritia” or “arthral-gia”, which just means joint pain. He said that this condition may develop with or without a traumatic incident. He prescribed heat, muscle relaxants, a mijd pain medication, low fat diet and exercise of the affected joints. On August 22, 2001, his last visit, the Plaintiff, was feeling better.

Dr. Twum-Antwi testified that the Plaintiff did not give a history of trauma on August 11th, “pertaining to the symptoms for which he came in on that day.” However, he noted that it is common for patients to forget to tell the doctor things that may be responsible for the symptoms. Although he thought that the Plaintiff may have related some type of accident affecting his right upper extremity, the doctor did not remember when this incident occurred because at the time he did not believe it was relevant.

According to the medical reports of Dr. Dowd, in his first visit with the Plaintiff in September of 2001, the Plaintiff related a history of pulling on a Porta-Power jack sometime in July.

The Defendant contends that the inconsistencies in the Plaintiffs testimony show that he willfully and fraudulently misrepresented the facts about an accident in order to obtain workers’ compensation. It contends that the doctors that treated him prior. to Dr. Dowd denied that he said anything about an accident in relation to his complaints. The Defendant notes that the Plaintiff signed his time card each day with a denial that he had suffered an accident. Furthermore, he knew that he |swas supposed to report any incident however small. The Defendant contends that even if the Plaintiff told Leggion about the incident with the Porta-Power jack when he picked up his check in September, which it denies, that was the point that he realized he was going to be disabled with no source of income. As a result, he sought to connect that event with his injury, so that he could obtain workers’ compensation benefits.

Although the Plaintiffs deposition testimony and trial testimony were inconsistent in regard to whom he told about the incident, the Plaintiff was puzzled and confused about his earlier statements and said that after the surgery, he was having trouble remembering and that sometimes he cannot “think well.” Reviewing his cold testimony, it does not . appear that he was intentionally misleading- the court, especially considering that the Plaintiff had given a history to Dr. Dowd in September of 2001 that tracked his trial testimony. In addition, the doctors that he saw prior to Dr. Dowd were focused on arthritis as a cause for his complaints, so he was not connecting the incident with the symptoms. As Dr. Waguespack stated, patients often do not tell the doctor all possible causes for the complaints and Dr. Twum-Antwi testified that the Plaintiff did not give a history of trauma, “pertaining to the symptoms for which he came in on that day.” The Plaintiff is not a sophisticated patient. Furthermore, he testified that at work, he and Leggion had joked about his getting old as a cause for his deteriorating condition. Thus,.it was clear that he did not make the connection between his complaints and the lifting of the jack until his visit with Dr. Dowd and the discovery of the disc problem.

The timeline of his complaints support the occurrence of the incident. The Plaintiff went to the Prevost Memorial Hospital a few days into August. He claimed that the incident happened sometime in late July. Although he gave three possible dates in his deposition, he also told the Defendant that he was not sure, it |9was “somewhere around up in there. I know it was the seventh month.” He did not remember what he had said in his deposition and explained at trial that his memory was faulty. He also said in his deposition that he did not tell the supervisor at that time because “No, we was working too much for that. All they want to see is just work, just get the job done. I mean they didn’t want to hear all that.” He said that when he saw Dr. Wagues-pack, he did not say anything about the accident because “my mind wasn’t on that, you know?”

At trial, there were two permissible views of the evidence and the workers’ compensation judge weighed the evidence, assessed the credibility of the witnesses and concluded that the Plaintiff had sustained a work related accident causing his injury. Under the manifest error standard of review, this Court cannot disturb the workers’ compensation judge's findings unless we find that his conclusion was unreasonable. Stobart, 617 So.2d at 882; Hoolcfin, 03-340 at 3, 860 So.2d at 59. As there are two permissible views of the evidence here, the workers’ compensation judge’s choice of them cannot be manifestly erroneous or clearly wrong. Chaisson, 97-1225 at p. 14, 708 So.2d at 381; Hook-fin, 03-340 at 4, 860 So.2d at 59. Thus, we find that the workers’ compensation judge did not err in finding that the Plaintiff was entitled to workers’ compensation benefits and payment of medical expenses.

SET-OFF

We agree with the Defendant on this issue. The parties stipulated prior to trial that the Defendant had fully funded the Plaintiffs health insurance and would be entitled to an off-set for the medical expenses paid by the health insurer in the event of a judgment in the Plaintiffs favor. The workers’ compensation judge failed to include the set-off in the judgment. Thus, we will amend the judgment to reflect the set-off for payments made by the insurer until the date of trial.

| ^PENALTIES AND ATTORNEY’S FEES

La. R.S. 23:1201 F provides for the imposition of penalties and attorneys fees against the employer when indemnity or medical benefits 'due to the claimant are not paid timely, unless the claim is reasonably controverted, or if such nonpayment results from conditions over which the employer had no control. La.R.S. 23:1201 F(2). In order to reasonably controvert a claim, the Defendant must have some valid reason or evidence upon which to base the denial of benefits. Brown v. Texas-La Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890; Barbarin v. TLC Home Health, 02-1054, p. 9 (La.App. 5th Cir.4/29/03), 845 So.2d 1199, 1206. The question is whether the Defendant “engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time which they refused to pay all or part of the benefits allegedly owed.” Brown, 98-1063 at 9, 721 So.2d at 890; Barbarin, 02-1054 at 9, 845 So.2d at 1206.

The assessment of penalties and attorney fees by the workers’ compensation judge is a factual question which is not to be disturbed on appeal in the absence of manifest error. Barbarin, 02-1054 at 9, 845 So.2d at 1206. Awards of penalties and attorney’s fees in workers’ compensation cases are penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. See, Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So.2d 1382. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed. Williams v. Rush Maspnry, Inc., 98-2271, p. 8 (La.6/29/99), 737 So.2d 41, 46. The fact that an employer may be subjectively motivated to avoid paying compensation is not determinative. Neither is the fact that an employer loses a disputed claim. Sharbono, 97-0110 at 11, 696 So.2d at 1389 (penalties and fees are never assessed automatically against the losing party); Williams, 98-2271 at 9, 737 So.2d at 46.

The evidence here was contradictory as to whether the Defendant was informed about the incident prior to the claim being filed and whether the injury was employment related. Although we do not find manifest error in the workers’ compensation judge’s finding that a work-related accident did occur, the facts support a reasonable basis for the claim to be controverted. Thus, the trial judge was manifestly erroneous in awarding penalties and attorney’s fees and we will reverse, that part of the judgment.

Accordingly, the judgment is affirmed as to the award to Plaintiff for indemnity benefits and medical expenses. The judgment is amended to include a credit to the Defendant for the medical expenses paid by the Plaintiffs health insurer to date of trial. The judgment is reversed as to the award for penalties and attorney’s fees.

REVERSED IN PART, AMENDED IN PART, AND AFFIRMED AS AMENDED.


source: Caselaw Access Project

author: WALLER, J.,

license: Public Domain

text:
    In the Matter of the ESTATE OF George FITZNER, Deceased. Oliver L. Phillips v. Julie Fitzner Jurotich, Administratrix, C.T.A.
    No. 2001-CA-01898-SCT.
    Supreme Court of Mississippi.
    Jan. 23, 2003.

      David L. Sanders, Jeffrey Johnson Tur-nage, Columbus, attorneys for appellant.
    James W. Craig, Jackson, J. Randolph Lipscomb, Columbus, attorneys for appel-lee.
    Before PITTMAN, C.J., WALLER and CARLSON, JJ.
   WALLER, J.,

for the Court:

¶ 1. This case involves an appeal from a judgment denying a probated claim filed by Oliver L. Phillips, one of the partners in a limited partnership, against the Estate of George E. Fitzner, the other partner. The chancellor found that advances made by Phillips for the benefit of Fitzner were subject to a written memorandum agreement which restricted Phillips’ recovery to assets from the partnership. The chancellor further found that the parol evidence rule barred evidence of oral agreements made prior to the execution of the written agreement and that the statute of frauds barred evidence of alleged oral modifications made after the execution of the written agreement. We affirm.

FACTS

¶ 2. In 1995, Oliver L. Phillips and George E. Fitzner formed a Mississippi limited partnership, Plantation Pointe, L.P., to operate a retirement home in Columbus, Mississippi. Each owned fifty percent of the partnership, and each made equal contributions to the business until 1996, when Phillips’ contributions began to exceed those made by Fitzner. According to Phillips, Fitzner, who was having cash flow problems, orally promised to repay Phillips fifty percent of his contributions plus interest. As the unequal contribution pattern continued, however, Phillips became concerned. He repeatedly asked Fitzner to reduce the promise to pay to writing, but Fitzner always put him off, saying that he promised to pay Phillips back with interest. In 1997, Phillips produced, and Fitzner signed, a memorandum agreement, which provided as follows:

These parties are the principal partners in Plantation Pointe, L.P. (the “Business”) and desire to reduce their understanding with respect to financial advances to writing. The Business has considerable expenses and has needed and continues to need infusions of cash. Phillips has been and is in a position to inject cash into the business to a greater extent than Fitzner is able and willing to do. It is agreed that all cash advances made by Phillips to the business in excess of equal advances made by Fitzner shall accrue interest from the date of each such advance at the rate of one and one-half per cent (1/6%) above New York prime, compounded monthly. In the event of the sale of all or a part of the business or the ability of the business to pay out income to its partners, Phillips will be repaid his disproportionate advances together with all such accrued interest prior to any other disbursements from the business to any partner.

¶ 3. Plantation Pointe’s tax returns show that Phillips’ ownership percentage in Plantation Pointe gradually rose from 50% in 1995 to 92.67% in 1999. Plantation Pointe’s books credited every dollar Phillips contributed as a credit to Phillips’ capital account.

¶ 4. Fitzner died in 1999, and estate proceedings were begun. Phillips probated a claim in the amount of $1,527,882.31 against the Estate based on the written memorandum agreement. The Estate filed a motion to disallow Phillips’ claim, which the chancellor granted, finding, in effect, that Phillips’ claim was against Plantation Pointe, not the Estate:

The [memorandum] agreement is not ambiguous. No evidentiary hearing is necessary to take parol evidence in order to interpret the agreement. The agreement between Phillips and Fitzner says that they “desire to reduce their understanding with respect to financial advances to writing.” Therefore there is no need nor right to vary or add to the written agreement as the parties intended the written agreement to be complete and whole, the integration of their agreement to writing.

¶5. The chancellor allowed Phillips to amend to add a claim that there was an oral contract between Phillips and Fitzner pertaining to the cash advances. The chancellor held:

[A] claim is sufficient if it indicates the nature and extent of the claim, and it may be amended if the amendment does not substantially change the original claim or introduce a new or different claim.... The written agreement does not establish an enforceable claim against the estate, and it may not be supplemented by oral agreements. The written agreement however may be modified by a subsequent oral agreement unless prohibited by the statute of frauds.

The amended claim filed by Phillips stated as follows:

To the extent the written agreement Dated December 15, 1997 was an attempt to reduce their agreement to writing, Fitzner and Phillips had a separate oral agreement that was never reduced to writing. Alternatively, Fitzner and Phillips orally modified their agreement of December 15, 1997 when Fitzner on many occasions orally promised Phillips if Phillips would infuse more of his personal cash into the business, Fitzner would personally repay Phillips for all unequal cash advances ever made by Phillips to the business with interest compounded monthly at a rate of 1% percent above New York prime.

The chancellor ruled that Phillips failed to prove by clear and convincing evidence that an oral contract was ever made between Phillips and Fitzner. Phillips appeals.

DISCUSSION

I. WHETHER THE MEMORANDUM AGREEMENT WAS AMBIGUOUS.

¶ 6. “In contract construction cases a court’s focus is upon the objective fact — the language of the contract. [A reviewing court] is concerned with what the contracting parties have said to each other, not some secret thought of one not communicated to the other.” Turner v. Terry, 799 So.2d 25, 32 (Miss.2001); Oshome v. Bullins, 549 So.2d 1337, 1339 (Miss.1989). Only if the contract is unclear or ambiguous can a court go beyond the text to determine the parties’ true intent. “[T]he mere fact that the parties disagree about the meaning of a contract does not make the contract ambiguous as a matter of law.” Turner, 799 So.2d at 32; Cherry v. Anthony, 501 So.2d 416, 419 (Miss.1987).

¶ 7. Questions concerning the construction of contracts are questions of law that are committed to the court rather than questions of fact committed to the fact finder. Parkerson v. Smith, 817 So.2d 529, 532 (Miss.2002); Miss. State Hwy. Comm’n v. Patterson Enters., Ltd., 627 So.2d 261, 263 (Miss.1993). The standard of review for questions of law is de novo. Parkerson, 817 So.2d at 532; Starcher v. Byrne, 687 So.2d 737, 739 (Miss.1997).

¶ 8. A reviewing court should seek the legal purpose and intent of the parties from an objective reading of the words employed in the contract to the exclusion of parol or extrinsic evidence. The reviewing court is not at liberty to infer intent contrary to that emanating from the text at issue. Cooper v. Crabb, 587 So.2d 236, 239 & 241 (Miss.1991). When construing a contract, we will read the contract as a whole, so as to give effect to all of its clauses. Brown v. Hartford Ins. Co., 606 So.2d 122, 126 (Miss.1992). We must look to the “four corners” of the contract whenever possible to determine how to interpret it. McKee v. McKee, 568 So.2d 262, 266 (Miss.1990). Our concern is not nearly so much with what the parties may have intended, but with what they said, since the words employed are by far the best resource for ascertaining the intent and assigning meaning with fairness and accuracy. Simmons v. Bank of Miss., 593 So.2d 40, 42-43 (Miss.1992).

¶ 9. The chancellor found as follows:

The agreement between Phillips and Fitzner says that they “desire to reduce their understanding with respect to financial advances to writing.” Therefore there is no need nor right to vary or add to the written agreement as the parties intended the written agreement to be complete and whole, the integration of their agreement to writing. Prior negotiations and agreements were merged into the written agreement. The advances to be made by Phillips are to be made to the business, not to Fitzner. Nowhere in the agreement does Fitzner agree to repay the advances made by Phillips to the business. What Fitzner does agree is that the advances shall be repaid by the business “prior to any other disbursements from the business.” Fitzner also does agree to the interest rate that the business shall pay Phillips for his loans to the business. Nowhere within the four corners of the agreement is there any language which can be interpreted as an agreement by Fitzner to repay Phillips for any advances which Phillips chooses to make to the business, including any disproportionate advances that Phillips may have made to the business in the past. Nowhere in the written agreement does Fitzner agree to be personally liable for principal and interest .on any prior advances made by Phillips to the business. This written agreement would have been the logical and reasonable time and place for Fitzner to agree in writing to be liable personally for both previous and future advances by Phillips to the business and he did not. This written agreement was also the logical and reasonable manner in which Fitzner and Phillips would have memorialized any prior agreement between them that any prior advances by Phillips to the business were actually loans to Fitzner and advances by him to the business. No such memorialization was made notwithstanding the parties[’] statement that the purpose of the writing was to reduce to writing their agreement on advances to the business. The written agreement evidences that Fitz-ner would not at that time advance more money to the business but if Phillips chose to do so, Phillips would be repaid by the business, as a creditor, any disproportionate advances in preference to any claims of Fitzner, as a partner.

¶ 10. The chancellor did not err in finding that the memorandum agreement was unambiguous. A contract is sufficiently definite if it contains matters which will enable the court under proper rules of construction to ascertain its terms. Duke v. Whatley, 580 So.2d 1267, 1274 (Miss.1991). The chancellor obviously spent a great deal of time analyzing the document and determining the meaning of its provisions. The chancellor correctly found that the document does not contain any provision making Fitzner personally liable for repayment of Phillips’ advances to the business. The document plainly states that Phillips will be repaid first for his disproportionate advances from any proceeds from the sale of the business. Phillips’ advances are recognized, and a process was established whereby Phillips would be repaid. Therefore, we conclude that the memorandum agreement was not ambiguous.

II. WHETHER THE AMENDED CLAIM IMPERMISSIBLY MODIFIED THE CHARACTER OF THE ORIGINAL CLAIM.

¶ 11. The chancellor allowed Phillips to amend his claim to show that the memorandum agreement may have been modified by a subsequent oral agreement, unless prohibited by the statute of frauds. The Estate argues that the amended claim modified the original claim and Phillips should not have been allowed to amend. While a claimant may amend his claim against an estate,

[w]here the amendment increases the amount of the claim, sets up a new cause of action, and materially changes the basis of the claim, it is not allowable. It is permissible only if it does not amount to a new claim, but is merely an improvement or perfection of one presented in time but lacking certain elements necessary to express its full merits.

34 C.J.S. Executors and Administrators § 417 (quoted in Cent. Optical Merck. Co. v. Lowe’s Estate, 249 Miss. 61, 160 So.2d 673, 678 (1964)).

¶ 12. Phillips’ original claim was based upon the memorandum agreement. As the chancellor found, “Phillips did not include with his probated claim any signed ‘statement of the claim in writing’ relying instead upon the subject written agreement and an itemized but unsigned account which he attached to his sworn claim.” The amended claim stated as follows:

To the extent the written agreement Dated December 15, 1997 was an attempt to reduce their agreement to writing, Fitzner and Phillips had a separate oral agreement that was never reduced to writing. Alternatively, Fitzner and Phillips orally modified their agreement of December 15, 1997, when Fitzner on many occasions orally promised Phillips if Phillips would infuse more of his personal cash into the business, Fitzner would personally repay Phillips for all unequal cash advances ever made by Phillips to the business with interest compounded monthly at a rate of Vk percent above New York prime.

¶ 13. The amendment does not substantially modify the character of the original claim. While the original claim made no mention of any oral modifications, and the memorandum agreement was merely attached as an exhibit to show the existence of the debt, the amount allegedly due to Phillips remained the same and the basis of the claim (the disproportionate cash advances) was not modified.

III. WHETHER THE PAROL EVIDENCE RULE APPLIED TO EXCLUDE EVIDENCE OF ORAL AGREEMENTS MADE PRIOR TO THE EXECUTION OF THE MEMORANDUM AGREEMENT.

¶ 14. At the evidentiary hearing, Phillips sought to call witnesses who would testify that, on several occasions before the memorandum agreement was executed, Fitzner had orally promised to repay Phillips unconditionally, regardless of sale or profitability. Because the first chancellor held that the agreement was unambiguous, the second chancellor did not allow Phillips to put these witnesses on the stand.

¶ 15. Phillips claims that the chancellor’s ruling was contrary to both the evidence and the law, contending that the parol evidence rule provides that prior and contemporaneous negotiations are merged only into the writings that are adopted by the parties as the final and complete expression of their agreement. He states that it was improper for the chancellor to rule that there was a merger of prior oral agreements and the written agreement until the chancellor heard all the testimony and understood the circumstances surrounding the execution of the writing. He claims that nothing in the agreement ever indicated that it was a final and complete expression of all of their other agreements.

¶ 16.. Under the parol evidence rule, where a contract is not ambiguous, the intention of the contracting parties should be gleaned solely from the wording of the contract. Turner, 799 So.2d at 32; Heritage Cablevision v. New Albany Elec. Power Sys., 646 So.2d 1305, 1312 (Miss.1994). Parol evidence will not be received to vary or alter the terms of a written agreement that is intended to express the entire agreement of the parties on the subject matter at hand. Turner, 799 So.2d at 32; Grenada Auto Co. v. Waldrop, 188 Miss. 468, 195 So. 491, 492 (1940).

¶ 17. Although parol evidence which contradicts, varies, alters, adds to, or detracts from the written agreement is not admissible, this bedrock rule “is subject to many exceptions and is said to be very flexible.” Turner, 799 So.2d at 32; Byrd v. Rees, 251 Miss. 876, 882, 171 So.2d 864, 867 (1965). “Parol evidence of the intention of the parties may be received to clear up an ambiguity by reason of which, such intention is not definitely expressed.” Id.

¶ 18. Because the chancellor correctly found that the memorandum agreement was unambiguous, the parol evidence rule excludes from consideration Phillips’ proposed evidence of oral agreements made prior to the execution of the memorandum agreement. Parol evidence may be considered only if the contract is unclear or ambiguous and if the court is unable to translate a clear understanding of the parties’ intent. Pursue Energy Corp. v. Perkins, 558 So.2d 349, 352 (Miss.1990). Here, the memorandum agreement’s terms are crystal clear. Therefore, the chancellor properly enforced the parol evidence rule by excluding the proffered evidence of oral agreements made prior to the execution of the memorandum agreement.

IV. WHETHER THE PAROL EVIDENCE RULE SHOULD HAVE BEEN APPLIED TO ORAL AGREEMENTS MADE SUBSEQUENT TO THE EXECUTION OF THE MEMORANDUM AGREEMENT.

¶ 19. The chancellor did not reach this issue because other rulings discussed below mooted it, but, on appeal, Phillips correctly states that the parol evidence rule should not be applied to evidence of subsequent oral agreements:

Any contract, however, made or evidenced, can be discharged or modified by subsequent agreement of the parties .... The existence and the terms of this modifying or discharging agreement can be proved by the same kinds of evidence that are admissible to prove any other kind of contract.... But after these issues have been determined and the court finds, as a fact, the making and the terms of the modifying or discharging agreement, we are no longer interested in the terms of the antecedent contract for purposes of enforcement of them, in so far as those terms have been nullified by the new agreement.

3 A. Corbin, Contracts § 574, at 374-75 (1960) (quoted in Kelso v. McGowan, 604 So.2d 726, 731 (Miss.1992)).

V. WHETHER PHILLIPS’ CLAIM AS TO SUBSEQUENT ORAL MODIFICATIONS WAS BARRED BY THE STATUTE OF FRAUDS.

¶20. The chancellor held that Phillips’ claim relating to any oral modifications made after the execution of the memorandum agreement was barred by the statute of frauds and the more specific statute of frauds which relates to limited partnerships. The chancellor held that the memorandum agreement unambiguously established the liability of the partnership, i.e., Plantation Pointe, for any cash advances made by Phillips, and that the partnership was specifically distinguished from Fitzner personally.

¶ 21. Under the Plantation Pointe limited partnership agreement, neither of the partners (Phillips nor Fitzner) were hable to third parties for debts of the partnership. As a limited partner, Fitzner had no liability or duty to make capital contributions to the partnership. “A promise by a limited partner to contribute to the limited partnership is not enforceable unless set out in a writing signed by the limited partner.” Miss.Code Ann. § 79-14-502(a) (Rev.2001). The only writing with respect to partners’ contributions to the partnership was the memorandum agreement which specifically stated that Phillips would be paid from the proceeds of the sale of Plantation Pointe. Personal liability for the debt was not assumed by Fitz-ner. Because Fitzner was not personally liable to repay Phillips, any alleged oral promise made by Fitzner would be “a special promise to answer for the debt or default or miscarriage of another person” and therefore squarely within the prohibitions of Miss.Code Ann. § 15-3-l(a).

¶ 22. A promise to pay another’s debt is a collateral obligation, as opposed to an original obligation:

The question to be kept in mind always is whether or not the person making the promise is entering into an original or collateral obligation. If it be the former, the Statute of Frauds does not apply; if the latter, it does.
* * *
If the party to whom a consideration moves becomes personally liable for the payment of the debt, the promise of any other person to pay it, though the promise be made at the same time, and upon the same consideration, is a collateral undertaking to pay the debt of another, and within the statute....

Allen v. Smith & Brand, 160 Miss. 303, 133 So. 599, 601-02 (1931). If Fitzner promised Phillips to repay Phillips for his unequal contributions to Plantation Pointe, the promise was a collateral undertaking to pay Phillips’ debt, and therefore controlled by the statute of frauds. Phillips made his contributions to Plantation Pointe, not to Fitzner. Phillips himself treated the cash injections as capital contributions as evidenced by Plantation Pointe’s tax returns. Phillips advanced money to the partnership and received credit on his capital account from the partnership. The only writing in evidence states that the partnership is responsible for the repayment of the contributions. Thus, this issue is without merit.

VI. WHETHER EQUITABLE ES-TOPPEL PRECLUDES THE APPLICATION OF THE STATUTE OF FRAUDS.

¶ 23. “[T]he doctrine of equitable estoppel may be invoked to preclude a party to a contract from asserting the unenforceability of a contract by reason of the fact that it is not in writing as required by the statute of frauds.” Sanders v. Dantzler, 375 So.2d 774, 776 (Miss.1979). “Where one has acted to his detriment solely in reliance on an oral agreement, an estoppel may be raised to defeat the defense of the statute of frauds.” Id. Phillips claims that he detrimentally relied upon Fitzner’s promise to repay by infusing “over $3,000,000 into Plantation Pointe, and that equitable estoppel should be applied.”

¶ 24. However, Phillips did not act to his detriment — for every cash contribution, he received a proportionate increase in the capital of Plantation Pointe. This claim is without merit.

VII. WHETHER THE ORAL PROMISES SHOULD BE ENFORCED IN QUANTUM ME-RUIT.

¶ 25. Quantum meruit recovery is a contract remedy which may be premised either on express or “implied” contract, and a prerequisite to establishing grounds for quantum meruit recovery is claimant’s reasonable expectation of compensation. Estate of Johnson v. Adkins, 513 So.2d 922, 926 (Miss.1987); Estate of Van Ryan v. McMurtray, 505 So.2d 1015 (Miss.1987); Wiltz v. Huff, 264 So.2d 808, 810-11 (Miss.1972). The essential elements of recovery under quantum meruit are (1) valuable services were rendered or materials furnished; (2) for the person sought to be charged; (3) which services and materials were accepted by the person sought to be charged, used and enjoyed by him; and (4) under such circumstances as reasonably notified person sought to be charged that plaintiff, in performing such services, was expected to be paid by person sought to be charged. Reed v. Weathers Refrigeration & Air Conditioning, Inc., 759 So.2d 521, 525 (Miss.Ct.App.2000) (quoting Black’s Law Dictionary 1243 (6th ed.1990)). The doctrine of quantum meru-it

applies to situations where there is no legal contract but where the person sought to be charged is in possession of money or property which in good conscience and justice he should not retain but should deliver to another, the courts imposing a duty to refund the money or the use value of the property to the person to whom in good conscience it ought to belong.

Hans v. Hans, 482 So.2d 1117, 1122 (Miss.1986).

¶ 26. Quantum meruit is not applicable to this case because the Estate was not in possession of Phillips’ money. Phillips’ money was given to Plantation Pointe, not to Fitzner. Phillips’ quantum meruit claim also fails because the cash that Phillips contributed to Plantation Pointe was not used and enjoyed by Fitzner. This claim is without merit.

CONCLUSION

¶ 27. We find no error in the chancellor’s findings that the memorandum agreement was unambiguous, that the parol evidence rule applied to bar evidence of any oral agreements made prior to the execution of the memorandum agreement, and that evidence of any subsequent oral modifications to the memorandum agreement was barred by the statute of frauds. Therefore, we affirm the judgment denying the claim of Oliver L. Phillips against the Estate of George E. Fitzner.

¶ 28. AFFIRMED.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., COBB, DIAZ, CARLSON AND GRAVES, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Chancellor Robert L. Lancaster ruled on all matters until he recused himself just before the evidentiary hearing on the motion to disallow Phillips' claim. At that point, the case was assigned to Chancellor Dorothy Winston Colom.

      . Miss.Code Ann. § 15-3-1 (Rev.1995) provides in pertinent as follows:
      An action shall not be brought whereby to charge a defendant or other party:
      (a) upon any special promise to answer for the debt or default or miscarriage of another person;

      unless in each of said cases, the promise or agreement upon which such action may be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith or signed by some person by him or her thereunto lawfully authorized in writing.

      . A promise by a limited partner to contribute to the limited partnership is not enforceable unless it is set out in a writing signed by the limited partner. Miss.Code Ann. § 79-14-502(a) (Rev.2001).


author: DICKINSON,

text:
    Darrell SWINDLE v. STATE of Mississippi.
    No. 2001-CT-01668-SCT.
    Supreme Court of Mississippi.
    June 24, 2004.
    Rehearing Denied Sept. 2, 2004.

      Darrell Swindle, Appellant, pro se.
    Office of the Attorney General by Charles W. Maris, Jr., for Appellee.
   ON WRIT OF CERTIORARI

DICKINSON,

Justice, for the Court.

¶ 1. After Darrell Swindle was indicted on two counts of uttering forgery, in violation of Miss.Code Ann. §§ 97-21-49, and 97-21-59, he pled guilty and was sentenced to two consecutive 15-year terms, with the last five years to be served on post-release supervision.

¶ 2. Thereafter, Swindle filed a pro se motion for post-conviction relief, which was denied. He then appealed, and the Court of Appeals reversed and remanded on the issue of ineffective assistance of counsel. Swindle v. State, 881 So.2d 281, 2003 WL 22708166 (Miss.Ct.App.2003). The State filed a petition for writ of certiorari which this Court granted. We now review the decision of the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

¶ 3. Darrell Swindle was indicted for fraudulently issuing two checks on the account of Sheila J. Odom. One check, issued to Bill’s Quick Stop, was in the amount of $49.82, and the other was issued to Wal-Mart in the amount of $588.41.

¶4. Through his counsel, Swindle entered an agreement with the prosecutor that he would enter an “open plea” of guilty, which meant that he would plead guilty and proceed to sentencing without any recommendation of a sentence from the prosecutor.

¶ 5. The trial court accepted the plea and deferred sentencing for four days, while a pre-sentence investigation report was prepared. At the sentencing hearing, the trial court offered an opportunity for victims of the crime to come forward and speak, but no one presented themselves in person. Instead, the prosecution indicated that the victim, Sheila Odom, had filed a written “victim’s impact statement,” which contained the following statement:

The night before the trial, Darrell Swindle and Darrell’s wife called the victim, crying and asking her to change her testimony. This really upset Sheila considering the history of her and Darrell. Yen years ago he told the victim he would have her and her family killed if she ever had anything to do with sending him to jail. Even if he went to jail, he told her he would have his brother kill them all and all he would have to do is six months in Whitfield because he has gotten off that easy (in another state) for the same thing. All this time since the crime, she couldn’t keep her children in sports because she was afraid he would find them and kill them. She had her number changed because his family kept harassing her in the beginning. Now it has just come out in the new phone book, and Darrell and his wife called this week (as per above). He has physically assaulted her in the past and she knows how violent he is capable of being which makes her take his threats seriously.

The court reviewed the pre-sentence investigation report and the victim’s impact statement, without objection from defense counsel. Swindle was then sentenced to two consecutive 15-year terms, with the last five years to be served on post-release supervision and a $1,000.00 fine.

¶ 6. No appeal was taken from the judgment of sentence. Subsequently, Swindle filed a pro se motion for post-conviction relief. The trial court summarily denied the motion. Swindle appealed, and the case was assigned to the Court of Appeals, where Swindle raised four issues:

(a) Whether the trial court improperly relied on information in Odom’s victim impact statement that was outside the intended scope of such a statement;
(b) Whether the proper statutory procedure for introduction of a victim impact statement was followed;
(c) Whether the trial court improperly relied on evidence of a prior criminal conviction to justify the length of the sentence; and,
(d) Whether Swindle received ineffective assistance of counsel.

¶ 7. The Court of Appeals held that issues (a) through (c) were not properly before the court because they could have been raised on direct appeal. 881 So.2d at 284, 2003 WL 22708166, at *2. However, it further held that in order to determine whether Swindle was denied effective assistance of counsel, it would be required to:

(a) examine the various complaints raised by Swindle, (b) determine whether they would appear to have merit, and (c) consider whether defense counsel, in a reasonably vigorous defense of his client’s rights, ought to have raised the issues contemporaneously, and, if so, (d) whether it is reasonable to conclude that a different result would, in all probability, have been obtained had he done so.

881 So.2d at 285, Id. at *3.

The Court of Appeals found that Swindle’s attorney was ineffective for failing to object to the victim’s impact statement, and failing to object to the inclusion of past crimes and Swindle’s prior convictions.

ANALYSIS

¶ 8. For purposes of this analysis, we shall consider together Swindle’s first two assignments of error concerning the victim impact statement.

Whether the trial court improperly relied on information in Odom’s victim impact statement that was outside the intended scope of such a statement
Whether the proper statutory procedure for introduction of a victim impact statement was followed

¶ 9. The State contends that the interpretation of Miss.Code Ann. §§ 99-19-151, et seq. is an issue of first impression, and that the Court of Appeals misinterpreted the statutes, ignored the stated purpose of the Legislature, and imputed to the Legislature an unwarranted intent.

¶ 10. The State further urges that the Court of Appeals erred in finding that the Victim Impact Statement Act, Sections 99-19-151, et seq., Miss.Code Ann. (1972) as amended, restricts the information that a trial court judge may consider in imposing sentence on a convicted criminal defendant. The specific holding was, as follows:

This Court has serious reservations regarding the propriety of such information in a victim impact statement. It certainly far exceeds the limited purposes for which such statements may be offered as a part of the sentencing process as outlined in the applicable statute. The statute plainly limits the contents of the statement to matters relating to the direct impact of the crime itself on the victim and does not appear to condone the kind of open-ended accusations of other incidents of wrongful conduct by the defendant that are contained in Odom’s statement.

881 So.2d at 285, 2003 WL 22708166, at *3.

¶ 11. The State argues that the purpose of the victim impact statement is not to provide rights to the convicted criminal. Nor is its purpose to limit the information that victims can provide to the sentencing court. Rather, it is intended to impart rights to the victim. Additionally, the State claims that a reversal of the trial court would have the effect of limiting, rather than expanding, the information that the trial court may properly consider in assessing punishment.

¶ 12. The State further notes that the trial judge has broad discretion in sentencing and claims that the decision of the Court of Appeals in conflict with its prior opinions. As an example, the State cites Summerall v. State, 734 So.2d 242 (Miss.Ct.App.1999), which states:

“[t]he trial judge here, sitting without a jury, had broad discretion in the things he was able to consider. He may appropriately conduct an inquiry broad in scope, largely unlimited as to the kind of information he may consider, or the source from which it may come.” Evans v. State, 547 So.2d 38, 41 (Miss.1989) (citing United States v. Barnett, 587 F.2d 252 (5th Cir.1979)). “The imposition of a sentence is within the discretion of the trial court, and this Court will not review the sentence, if it is within the limits prescribed by statute.” Reynolds v. State, 585 So.2d 753, 756 (Miss.1991) (citing Reed v. State, 536 So.2d 1336, 1339 (Miss.1988), Boyington v. State, 389 So.2d 485 (Miss.1980)). “In imposing sentence, the trial court may take into account larger societal concerns, as long as the sentence is particularized to the defendant.” Reynolds, 585 So.2d at 756 (citation omitted). •

734 So.2d at 246.

¶ 13. The State is correct for reasons it states, and for other reasons. The use of victim impact statements that have some probative value, measured against the evidence as a whole, and that are not so inflammatory as to prejudice the defendant have been affirmed by this Court. See Edwards v. State, 737 So.2d 275 (Miss. 1999).

¶ 14. In this case, the statement delved into Swindle’s history with the victim, including threats made against her and her family by the defendant. Assuming the statute controls the question, we find the statute not as narrow in scope as the Court of Appeals read it.

¶ 15. The legislative purpose of the victim impact statement statute is, as follows:

(1) The Legislature finds and declares that:
(a) Protection of the public, restitution to the crime victim and the crime victim’s family and just punishment for the harm inflicted are primary objectives of the sentencing process;
(b) The financial, emotional and physical effects of a criminal act on the victim and the victim’s family are among the essential factors to be considered in the sentencing of the person responsible for the crime;
(c) In order to impose a just sentence, the court must obtain and consider information about the adverse impact of the crime upon the victim and the victim’s family as well as information from and about the defendant;
(d) The victim of the crime or a relative of the victim is usually in the best position to provide information to the court about the direct impact of the crime on the victim and the victim’s family.
(2) Therefore, the Legislature declares that the purpose of Sections 99-19-151 through 9-19-161 is to provide the sentencing court with a victim impact statement prior to sentencing a convicted offender who has caused physical, emotional or financial harm to a victim as defined herein.

Miss.Code Ann. § 99-19-158 (Rev.2000).

¶ 16. Thus, the statute does not restrict the contents of the victim impact statement to the “financial, emotional and physical” effect of a criminal act on the victim, but instead states that these are among the essential factors to be considered in sentencing.

¶ 17. Furthermore, the statute specifically provides that the primary objectives of the sentencing process are “[protection of the public, restitution to the crime victim and the crime victim’s family, and just punishment for the harm inflicted.... ”

¶ 18. Swindle’s actions or statements indicate a heightened degree of savagery and capacity to inflict emotional damage on the victim. Where these actions or statements are related to the crime at issue, they are properly included in the victim’s impact statement and properly considered by the judge. Here, Swindle had a history of threatening to kill Odom and. her family, should she ever help send him to jail. Subsequent to the crime involved here, Odom had to change her phone number' because of harassing calls from Swindle and his family.

¶ 19. As to Swindle’s claim that the victim impact statement was furnished untimely, it is unclear from the present record when Swindle and his attorney were furnished Odom’s statement. Miss.Code Ann. § 99-19-159 (Rev.2000), requires disclosure of the victim impact statement to the defendant “[a]t least 48 hours prior to the date of the sentencing.”

¶ 20. Regardless of when it was furnished, Swindle has provided us with no evidence or indication that, had the statement been provided earlier, a different result would have obtained. Nor does he present us with evidence indicating that the victim impact statement was, in any respect, inaccurate. Thus, his claim of ineffective assistance of counsel for failure to object to the victim impact statement is without merit.

Whether the trial court improperly relied on evidence of a prior criminal conviction to justify the length of the sentence.

¶ 21. Swindle was not indicted as a habitual offender under Miss.Code Ann. § 99-19-83 which imposes a life imprisonment sentence. Nevertheless, it is clear that, in sentencing Swindle, the trial judge considered his prior criminal history, which was listed in the presentence report provided to the court on the day of sentencing.

¶22. Because the record before the Court of Appeals did not include the pre-sentence investigation report, that Court stated:

Apparently, the trial court obtained a presentence report on Swindle before imposing his sentence. That report is not a part of the record in the matter now before us. It cannot be doubted, however, that the contents of that statement had substantial effect on the trial court’s decision to impose what appears on its face to be a rather severe punishment. In the order denying Swindle’s post-conviction relief motion, the trial court spoke of Swindle’s complaint regarding the severity of his sentence by saying, “[t]hat at the time [of entering his plea] the offender had a record which made him eligible to be sentenced pursuant to Section 99-19-83 to life without parole.... ”
No other reference to the existence of any such prior criminal record appears in the record. There was no effort to indict Swindle as an habitual offender. In his motion, Swindle asserts that he was actually acquitted of at least one prior crime “by a jury in another state....” It is impossible to assess the accuracy of that allegation by Swindle because of the lack of information as to what alleged prior conviction or convictions the trial court relied upon in its decision to impose such a lengthy sentence on Swindle. Again, we are satisfied that, if the presentence investigation revealed alleged prior convictions that would tend to bear on the length of sentence to be imposed, defense counsel had some obligation to investigate the matter, especially in the circumstance where the defendant himself was protesting that at least one of the alleged convictions did not, in fact, occur.
Until a better record is created that includes evidence of those prior convictions apparently relied upon by the trial court, this Court cannot effectively evaluate the truthfulness of Swindle’s allegation that he was, in fact, acquitted of at least one of the relevant crimes that would otherwise have potentially exposed him to the possibility of a life sentence. An effective effort at representation by counsel during the sentencing phase would have ensured that such evidence was in the record for appropriate review.

881 So.2d at 287, 2003 WL 22708166, at *5.

¶ 23. Subsequent to the Court of Appeals decision, the record was supplemented to include the pre-sentence investigation report. It provides that Swindle has two prior felony convictions, a pending charge of possession of paraphernalia, and numerous arrests.

¶ 24. Specifically, Swindle was convicted in 1986 of simple burglary of a structure, and received a sentence of three years, which was suspended.

¶ 25. In 1987, he was convicted of two counts of theft over $100.00, one count of burglary and one count of criminal damage to property, and sentenced to jail on all counts.

¶ 26. In 1989, he was arrested and charged with two counts of aggravated rape. No disposition of this charge is listed.

¶ 27. In 1990, he was arrested and charged with possession of stolen goods. No disposition of this charge is listed.

¶ 28. In 1990, he was arrested in Louisiana as a fugitive from Pearl River County.

¶ 29. In 1990, he was arrested in Louisiana and charged with aggravated assault and simple criminal damage. The charge was nolle prossed.

¶ 30. In 1991, he was arrested for purse snatching. No disposition is listed.

¶ 31. In 1998, he was arrested in Louisiana for simple burglary of an inhabited dwelling, forgery, and illegal possession of stolen property. No disposition is listed.

¶ 32. In 1998, he was arrested for possession of stolen goods, speeding and driving with a suspended license. Disposition is not listed.

¶ 33. In 2000, he was arrested in Louisiana for simple burglary and theft. No disposition is listed.

¶ 34. We find the trial court properly considered Swindle’s criminal history, and his counsel’s failure to object was not ineffective assistance of counsel.

CONCLUSION

¶ 35. Having found no error in the sentencing, we cannot hold that Swindle’s counsel was ineffective. Therefore, the judgment of the Court of Appeals is reversed, and the judgment of the trial court is reinstated and affirmed.

¶ 36. JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE JUDGMENT OF THE TRIAL COURT IS REINSTATED AND AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ„ EASLEY, CARLSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. DIAZ, J., NOT PARTICIPATING.

      . See also Payne v. Tennessee, 501 U.S. 808, 833, 111 S.Ct. 2597, 2612-13, 115 L.Ed.2d 720 (1991) (Scalia, J., concurring) ("[T]he Eighth Amendment permits parity between mitigating and aggravating factors.”). Since a victim is not on trial, the victim's character and morality are not on trial. The impact upon a victim’s family is not on trial either. What is on trial is the guilt and culpability of the defendant. However, now that victim impact statements are admissible, any similar mitigating evidence should be deemed relevant on the basis of fairness and equal parity. Id. at 825.


author: CARLSON,

text:
    Demetra P. MYERS v. Mark E. MYERS.
    No. 2002-CT-00326-SCT.
    Supreme Court of Mississippi.
    June 24, 2004.

      Philip Mansour, Jr., Greenville, attorney for appellant.
    Lindsey C. Meador, Cleveland, attorney for appellee.
   ON WRIT OF CERTIORARI

CARLSON,

Justice, for the Court.

¶ 1. On February 18, 2002, the Bolivar County Chancery Court ordered Mark E. Myers to pay his wife, Demetra P. Myers, separate maintenance in the amount of $600 per month along with other expenses. The chancery court also ordered the parties to sell their marital home and use the proceeds from the sale to purchase a more affordable home which would be jointly titled in the names of both parties. On appeal, the Court of Appeals held that the chancellor lacked the authority to order a partition of the marital home because neither party had made such a request. Finding that Mark requested the marital home be partitioned in his initial complaint for divorce and later at a subsequent hearing, we affirm in part and reverse in part the judgment of the Court of Appeals and reinstate and affirm the judgment of the Chancery Court of the Second Judicial District of Bolivar County.

FACTS
Mark and Demetra were married on November 22, 1987, and lived together until they separated April 6, 2000. One child, a daughter, was born of the marriage May 14,1989.
On May 24, 2000, Mark filed a complaint for divorce on the grounds of habitual, cruel and inhuman treatment. Alternatively, Mark sought an irreconcilable differences divorce. He also petitioned the court to sell the marital home when the child reached the age of twenty-one. Demetra then filed an answer denying Mark’s grounds for a divorce and requested a separate maintenance order based on Mark’s desertion and adultery.
The parties’ assets included a recently built 4,700 square foot home on five acres of land just outside Boyle, Mississippi, in Bolivar County. This home was subject to a $200,000 mortgage with monthly payments of $1,767. The mortgage had almost gone into foreclosure on two separate occasions. In addition to the marital home, the parties owned eight acres surrounding the home, a mobile home, a pontoon boat, a four wheeler, a duck boat and ten to fifteen guns.
On February 22, 2001, Demetra filed a motion for a temporary hearing asking the court to award her support and maintenance, custody of the child, and use and possession of the marital home. She also asked the court to order Mark to make the mortgage payments on the marital home and provide her with a car because the parties’ 1995 Cadillac was recently repossessed.
Mark filed his answer in which he agreed to temporarily provide support and maintenance to Demetra. He also agreed to Demetra’s having temporary custody of the child and use and possession of the home. However, Mark contended that he could not financially afford to make the mortgage payments on the marital home. He stated that the mortgage was scheduled for foreclosure on March 12, 2001. He asserted that he had asked Demetra on several occasions to consent to selling the property, but that she had refused. He requested the court to order the sale of the marital home. Mark also maintained that he could not afford to provide her with an automobile. He claimed that Demetra had been provided with an automobile from her deceased father’s estate.
The court entered a temporary order on March 12, 2001, awarding Demetra temporary custody of the child, and granting her a separate maintenance award of $600 per month and use of the marital home. The chancellor directed the parties to execute long-term financing on the marital residence. The chancellor also ordered the parties to sell the eight acres of land surrounding their residence to Mark’s parents to obtain funds to pay the remaining balance on the Cadillac.
At trial on October 1, 2001, Mark announced that he would not pursue his complaint for divorce and would agree to provide Demetra with separate maintenance. The chancellor then made the following ruling: due to the maintenance and costs associated with the marital home, the parties were to sell it. The sale was to be subject to the court’s confirmation. The net proceeds from the sale were to be placed in a joint account and used for the purchase of a more economical marital residence.
Additionally, the court awarded Demetra primary custody of the child and granted her $600 per month in separate maintenance. The chancellor also ordered Mark to pay the monthly house note, pay all taxes and insurance relative to the marital home, pay the child’s private school tuition and provide health insurance for Demetra and the child.

Myers v. Myers, No.2002-CA-00326-COA, 881 So.2d 220, 222-23, 2003 WL 21384900, **1-2 (Miss.Ct.App.2003).

¶ 2. Demetra and Mark both appealed the judgment of the chancellor. The Court of Appeals held that the chancellor’s ruling regarding the sale of the marital home was “not within the spirit of the common law remedy of separate maintenance.” 881 So.2d at 223, Id. at *2. The Court of Appeals determined that partitioning a martial home discouraged a couple’s reuniting which was contrary to public policy. Id. See also Whitman v. Whitman, 206 Miss. 838, 844, 41 So.2d 22, 25 (1949); Wilboume v. Wilboume, 748 So.2d 184(¶ 9) (Miss.Ct.App.1999); Finding that no party requested that the marital home be partitioned, the Court of Appeals found that the judgment of the chancellor “was more permanent than necessary.” Myers, 881 So.2d at 223, 2003 WL 21384900 at *3. Therefore, the Court of Appeals reversed the judgment of the chancellor and remanded the case for further proceedings. The Court of Appeals affirmed the award of separate maintenance.

¶ 3. On December 30, 2003, Mark petitioned this Court for certiorari on the sole issue of whether the chancellor had the authority to partition the marital home.

DISCUSSION

114. “This Court will not disturb the chancellor’s opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996) (citations omitted).

5. In Bowen v. Bowen, 688 So.2d 1374,1383 (Miss.1997), this Court held that in separate maintenance orders, chancellors may only order the partition of real property upon the petition of one of the parties. In Bowen, this Court found that neither party requested that the marital home be partitioned; therefore, the order of partition was deleted from the chancellor’s judgment. Id.

¶ 6. On May 24, 2000, Mark filed a Complaint for Divorce against his wife, Deme-tra. In his complaint, Mark specifically requested that he be granted exclusive use and possession of the marital home and that Demetra’s “equity in said marital home be frozen until the minor child reaches the age of 21 years at which time the marital home may either be sold to a third party or one of the parties hereto can purchase the other’s equity in said marital home.” Another request was made on March 2, 2001, by Mark in response to Demetra’s Motion for Temporary Hearing. In his response, Mark informed the chancellor of the financial difficulties the marital home had placed on him and Demetra. The financial difficulties were so apparent that a mortgage foreclosure was scheduled for later that same month. Mark stated that he attempted to obtain Demetra’s cooperation in selling the marital home, but she refused. Therefore, Mark requested the chancellor to “order that the marital home be offered for sale on the open market for a fair market value.” This request did not contain the contingency that the partition occur after the minor child reached the age of majority.

¶ 7. It is clear from the record that Mark, a party to the proceedings, requested that the chancellor partition the marital home. Finding that the marital home had become too great of a financial burden for the parties, the chancellor, in his discretion, ordered that the marital home be sold and that net proceeds from the sale be used to purchase a new marital home which would be jointly titled in the names of both parties. Therefore, the Court of Appeals erred in holding that no such request had been made to the chancellor by either party to partition the marital home.

CONCLUSION

¶ 8. Finding that the chancellor had the authority to partition the martial home upon the request of one of the parties, we affirm in part and reverse in part the judgment of the Court of Appeals and reinstate and affirm in toto the judgment of the Chancery Court of the Second Judicial District of Bolivar County.

¶ 9. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART, AND THE JUDGMENT OF THE CHANCERY COURT OF THE SECOND JUDICIAL DISTRICT OF BOLIVAR COUNTY IS REINSTATED AND AFFIRMED.

SMITH, C.J., WALLER AND COBB, P JJ., DICKINSON AND RANDOLPH, JJ., CONCUR. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.

      . The facts of the case sub judice are taken verbatim from the previous opinion handed down by the Court of Appeals.


author: WALLER, Presiding Justice,

text:
    Joseph GRIFFITH v. Sue Ann PELL, Next Friend and Parent of S.A.P., Minor. Robert “Sonny” Pell v. Sue Ann Pell.
    Nos. 2002-CT-00532-SCT, 2003-CA-00202-SCT.
    Supreme Court of Mississippi.
    July 29, 2004.

      Patricia Peterson Smith, attorney for appellant Joseph Griffith.
    David M. Sessums, attorney for appellant Robert Pell.
    Mark W. Prewitt, Vicksburg, attorney for appellee.
   WALLER, Presiding Justice,

for the Court.

¶ 1. These consolidated appeals arise from proceedings in which Robert “Sonny” Pell sought a divorce from Sue Ann Pell and from proceedings in which Sue Ann sought a determination of paternity of her minor daughter. Prior to their marriage, but while Robert and Sue Ann were dating and then cohabiting, Sue Ann gave birth to a minor daughter. During their marriage and under the belief that he was the minor’s biological father, Robert acted as a father to the minor. In her response to the complaint for divorce, Sue Ann averred that Robert had been “a good father to her minor child.”

¶ 2. About a year after the divorce proceedings were commenced, Sue Ann gave birth to a second child, and Robert, believing he was not the father of the second child, filed a motion for genetic testing to determine paternity of Sue Ann’s first child who was the subject of the custody issue in the divorce proceedings. The genetic testing conclusively showed that Robert was not the natural father of the minor child in question.

¶ 3. After this turn of events, the chancellor granted Sue Ann’s motion for partial summary judgment, ruling that Robert had “no legal standing in law or fact on the issue of custody as presented by his pleadings herein.” Sue Ann then filed a motion to terminate Robert’s rights of visitation with the minor child. The final decree of divorce did not grant Robert any rights of visitation.

¶ 4. Thereafter, Sue Ann filed a paternity action against Joseph “Joe” Griffith, the biological father of the child. The parties to the paternity suit entered into an agreed order declaring Griffith the biological father, ordering child support, and stating that all other matters would be decided by the chancellor at a later date. Later, Sonny and Griffith filed a motion for declaratory judgment, requesting that Sonny be declared the legal father of the child arguing that not only that this declaration would be in the best interest of the child but that Sue Ann should be estopped from denying Sonny’s paternity as well. Griffith agreed to relinquish all parental rights and allow Sonny to adopt the child. The chancellor denied their motion for declaratory judgment, set child support payments, and granted Griffith reasonable visitation.

¶ 5. Both actions were separately appealed to this Court. The Court of Appeals affirmed the chancery court which held that, due to the peculiar circumstances of these cases, the issue of what was in the best interest of the minor child should be decided in the appeal of the divorce action. Griffith v. Pell, 881 So.2d 227, 231, 2003 WL 22038733 at *4 (Miss.Ct. App.2003). We granted certiorari on the paternity appeal and have, pursuant to Miss. R.App. P. 3(b), consolidated the two appeals because they involve common questions of law or fact.

DISCUSSION

I. TERMINATION OF ROBERT’S PARENTAL RIGHTS.

¶ 6. The chancellor held, and Sue Ann argues, that the paternity proceedings foreclosed any rights of custody or visitation Robert may have had with regard to the minor child. We disagree. Merely because another man was determined to be the minor child’s biological father does not automatically negate the father-daughter relationship held by Robert and the minor child. Indeed, in Logan v. Logan, 730 So.2d 1124 (Miss.1998), we held that the custody of a minor child should be awarded to its stepfather upon the divorce between the stepfather and the child’s biological mother. Id. at 1127. We reiterated our recognition of the doctrine of in loco parentis, id. at 1126, which clearly applies to Robert.

¶ 7. In Logan, we further held:

Where a stepfather, as an incident to a new marriage, has agreed to support the children of a previous marriage, or where he does so over a period of time and the mother and the children in good faith rely to their detriment on that support, the best interests of the children require entry of a child support decree against the stepfather. Thus, it follows that if a stepparent can be required to pay child support for a stepchild based on his support of the stepchild over a period of time, where it is in the best interests of the child, he should be allowed to have custody of the stepchild based on the affection for and support of that child over a period of time. With the burden should go the benefit.

Id. at 1126 (citation omitted & emphasis added).

¶ 8. Under Logan, because Robert supported and cared for the minor child as if she were his own natural child, under state law, he may be required to pay child support for the minor child. It therefore follows that he may be awarded custody and/or visitation rights with the minor child.

¶ 9. Courts of at least two other states have spoken to the question before us here. The Supreme Court of Wisconsin has held that, even when a third party to a marriage is the biological father of a child of the marriage, the biological father does not have any paternity rights if he fails to establish that he had a substantial relationship with the child. A.J. v. I.J., 270 Wis.2d 384, 677 N.W.2d 630, 642 (2004). The court noted that the biological father “did not support [the minor child] emotionally or financially; that occasionally buying formula and diapers was insufficient to show his assumption of parental responsibility, as was his failure to assert parental rights ... at her birth.” Id. at 636. The court also stated:

A parent has a constitutionally protected liberty interest in the “companionship, care, custody and management of his or her children.” Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). However, parental status that rises to the level of a constitutionally protected liberty interest does not rest solely on biological factors, but rather, is dependent upon an actual relationship with the child where the parent assumes responsibility for the child’s emotional and financial needs. [Citation omitted.] ... As Justice Stewart observed in Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979): “Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring.” Id. at 397, 99 S.Ct. 1760 (J. Stewart, dissenting).

A.J., 677 N.W.2d at 636.

¶ 10. A California Court of Appeal has stated that “[wjhatever role genetic testing may play in resolving disputes between competing would-be fathers, ... we fail to see what purpose is served by using genetic testing to defeat an existing father-child relationship when there is no biological father seeking to assume care, support and nurturance of the child.” In re Raphael P., 97 Cal.App.4th 716, 118 Cal. Rptr.2d 610, 625 (2002). We agree wholeheartedly.

¶ 11. We therefore reverse the chancellor’s termination of Robert’s parental rights and remand for a prompt determination of custody, support and visitation issues. The chancellor should consider, among other things, the agreement between Robert and Griffith as to the custody and support of the minor child and any other evidence pertaining to the best interest of the child insofar as Robert is concerned.

II. WHETHER THE BEST INTERESTS OF A CHILD IN REGARDS TO CUSTODY, VISITATION AND SUPPORT MAY BE DETERMINED IN A PATERNITY ACTION.

¶ 12. The Court of Appeals answered this issue in the negative and held that paternity actions were limited to issues of biology and support. Griffith v. Pell, 881 So.2d 227, 229, 231, 2003 WL 22038733, at *2, 4 (Miss.Ct.App.2003). The Court of Appeals stated:

Current case law provides that paternity suits have limited purposes. Where scientific evidence points overwhelmingly towards one man as the father of a child, paternity is established, and the only matter left to resolve in the paternity action is that of support. Rafferty v. Perkins, 757 So.2d 992, 996 (Miss.2000).
* * *
The best interest of the child standard is to be applied when determining custody issues, such as in a divorce proceeding. Although a natural parent is entitled to custody of a minor child, there are circumstances under which that entitlement may be set aside in favor of a third party, including stepparent. That, however, is a matter better resolved in the appeal of the Pell divorce proceedings and not in the Griffith paternity action.

Id. at 230-31, at *4 (citations omitted). We agree. Paternity actions are about biology. However, it also important to note that custody issues such as visitation and support issues are routinely decided in paternity actions, as they were in Sue Ann Pell’s paternity action against Griffith here, such that conflicts arise which may eventually necessitate consideration of the best interests of the child. Yet, a paternity action is not the most convenient or appropriate forum for determining the best interests of the child where custody-actions are arranged to effectively and exhaustively address the issue. The best interests of the minor child at the heart of this action was best addressed in the divorce proceeding or in a separate custody action, not in the paternity action.

CONCLUSION

¶ 13. The chancellor erred when she terminated Robert’s parental rights. We reverse her ruling on this issue, and we affirm the grant of divorce. We remand for a new hearing as set forth above, and we instruct the chancellor to appoint a guardian ad litem for the minor child, and for a hearing and a determination of what would be in the best interests of the minor child. In making its decision the chancery court shall make a full on-the-record discussion of the application of the Albright factors. See Albright v. Albright, 437 So.2d 1003, 1004-05 (Miss.1983). We affirm the Court of Appeals’ holding that paternity suits should properly decide only issues of biology and support. We further affirm the Court of Appeals’ holding that a best interest determination is inappropriate for paternity suits. Thus, in the paternity appeal we affirm the judgments of the chancery court and the Court of Appeals.

¶ 14. N0.2002-CT-0532-SCT: AFFIRMED.

¶ 15. N0.2003-CA-00202-SCT: AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

SMITH, C.J., COBB, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.

      . A person acting in loco parentis is one who has assumed the status and obligations of a parent without a formal adoption. Logan v. Logan, 730 So.2d 1124, 1126 (Miss.1998). "Any person who takes a child of another into his home and treats it as a member of his family, providing parental supervision, support and education, as if it were his own child is said to stand [in loco parentis].” Id. (quoting W.R. Fairchild Constr. Co. v. Owens, 224 So.2d 571, 575 (Miss.1969)).

      . In the paternity action, Griffith submitted an affidavit that he did not know the child, did not wish to initiate a relationship with her, and felt her interests would better be served by permitting Robert to adopt the minor child. He also submitted a document in which he agreed to relinquish all parental rights in favor of Robert.


author: KING, P.J., McMILLIN, C.J.,

text:
    Stephanie TILLMAN, A Minor, By and Through her Legal Guardian, Theresa MIGUES, Appellant, v. David SINGLETARY and Stacy Powe, Appellees.
    No. 1999-CA-00686-COA.
    Court of Appeals of Mississippi.
    March 20, 2001.
    Rehearing Denied June 19, 2001.

      Robert H. Tyler, Michael E. Bruffey, Biloxi, Attorneys for Appellant.

      Tina Rose Singletary, Biloxi, Britt R. Singletary, Jackson, Attorneys for Appel-lee.
    Before KING, P.J., MYERS, and THOMAS, JJ.
   KING, P.J.,

for the Court:

¶ 1. Theresa Migues, on behalf of her minor daughter, Stephanie Tillman, sued David Singletary and Stacey Powe in the Harrison County Circuit Court. While swimming in the Tchoutacabouffa River, Tillman sustained injuries when a powerboat driven by Powe and owned by Single-tary struck her. During the trial, the judge granted Singletary a directed verdict on the issues of negligent entrustment and punitive damages. The jury returned verdicts for Singletary and Powe on the remaining issues. Tillman then filed appropriate post trial motions, which were denied. Aggrieved by this decision, Tillman appeals and raises the following issues: 1) did the trial court commit reversible error by granting the defendants’ jury instructions on unexpected and unavoidable accidents; 2) did the trial court commit reversible error by failing to grant the appellant’s requested instruction P-5; 3) was defendant David Singletary entitled to a Rule 50 directed verdict on the issues of negligent entrustment and punitive damages; 4) did the trial court commit reversible error in submitting a special interrogatory to the jury that was misleading and confusing and failed to allow that both defendants were operators of the vessel that injured the appellant; and 5) was the verdict against the overwhelming weight of the evidence?

¶ 2. This Court affirms this decision as it relates to Singletary and reverses and remands for a new trial as it relates to Powe.

FACTS

¶ 3. On Saturday evening, in the summer of 1995, Stephanie Tillman was swimming in the Tchoutacabouffa River. A large number of persons were also enjoying activities in and around the river at that time. Among those persons were Powe and Singletary, who were traveling in a speed boat owned by Singletary. While riding on the crowded river, Powe and Singletary observed a boat in front of them carrying tubers. Powe slowed the boat to about ten knots and stood up to get a better view of the tubers and nearby swimmers. While Powe was standing, a passing ski boat caused a series of waves to wash past the boat. These waves rocked the speed boat during which time Powe’s knee buckled. Powe had suffered reoccurring knee problems since 1989, with the latest having occurred eight months prior to this accident.

¶ 4. Powe lost control of the boat and fell between the passenger and driver seats. The boat then began to spin toward a dock. Singletary took control of the boat and killed the engine. Despite Single-tary’s efforts, the boat continued to spin, crashed into the dock and struck Tillman. Powe jumped from the boat and pulled Tillman to safety.

¶ 5. Police and emergency crews arrived and transported Tillman to the hospital. Tillman received extensive injuries to her left upper arm. As a result of these injuries, Tillman had to undergo plastic surgery and psychological counseling. The police conducted an investigation, which included an interview with Singletary and Powe at the scene. During the interview Powe acknowledged having consumed one beer approximately four hours before the incident and Singletary said that he had consumed three beers. Testing revealed that Powe’s blood alcohol content did not exceed the statutory limit. Likewise, there was no indication of alcohol impairment of Singletary.

ISSUES AND ANALYSIS

I.

Did the trial court commit reversible error by granting the defendants’ jury instructions on unexpected and unavoidable accidents?

¶ 6. Tillman contends that the jury instructions on unexpected and unavoidable accidents were improper considering the facts of the case. Relying on Buford v. Riverboat Corporation of Mississippi, 756 So.2d 765 (Miss.2000), Tillman argues that this is not that rare occasion where Single-tary and Powe could not have foreseen this incident or prevented it from happening by exercising precaution.

¶ 7. An unavoidable accident is an occurrence that is not intended, but could not have been foreseen or prevented by the exercise of reasonable precaution under the circumstances. Buford v. Riverboat Corporation of Mississippi, 756 So.2d 765 (1129) (Miss.2000). Whether an accident is unavoidable must be determined on a case by case basis. Likewise, whether an unavoidable accident instruction is proper depends on the facts and circumstances of the particular case. Id.

¶ 8. An unavoidable accident instruction should only be granted in “situations where the accident may truly be said to be unavoidable.” Buford, 756 So.2d at 771 (citing Hollingsworth v. Thomas, 148 Ga.App. 38, 250 S.E.2d 791 (1978)). As noted, our supreme court has held that this instruction should very rarely be granted. This does not appear to be one of those rare circumstances where an unavoidable accident instruction should be given. See Pope v. Sanders, 217 So.2d 1, 3 (Miss.1968); Jones v. Richards, 254 Miss. 617, 181 So.2d 923, 925 (1966). In this case, Powe was aware of his history of reoccurring knee problems, but chose to operate the power boat on a crowded river while standing. Granting the instruction based on Powe’s knee buckling was not enough to establish that the accident as unavoidable.

II.

Did the trial court commit reversible error by failing to grant the appellant’s requested instruction P-5?

¶ 9. Instruction P-5 would have directed the jury to return a verdict for Migues should it find that the boat, while operated by Powe, was still under the direction and control of Singletary and that Singletary’s negligent supervision of Powe caused the accident. Accordingly, this Court affirms the verdict as to Singletary and thereby renders moot this issue.

III.

Was Defendant David Singletary entitled to a Rule 50 directed verdict on the issues of negligent entrustment and punitive damages?

¶ 10. Tillman argues that the trial judge erroneously granted Singletary’s motion for directed verdict on negligent entrustment and punitive damages. Tillman asserts that negligent entrustment should apply to this case because Single-tary negligently allowed Powe, who was inexperienced in the operation of the boat, to steer and operate the boat. Additionally, Tillman argues that punitive damages should have been considered by the jury based on evidence that Singletary was intoxicated while operating the boat.

¶ 11. In making a decision to grant or deny a directed verdict, the trial court must consider the evidence in the light most favorable to the non-moving party, giving that party the benefit of all favorable inferences that may be reasonably drawn from the evidence, as well as contemplating any uncontradicted evidence presented by the moving party. Pickering v. Industria Masina I Traktora, 740 So.2d 836 (¶ 23) (Miss.1999); American Fire Protection, Inc. v. Lewis, 653 So.2d 1387, 1390 (Miss.1995). If the facts thus considered point so overwhelmingly in favor of the movant that reasonable men could not have rendered a different result, the directed verdict should have been granted. Pickering, 740 So.2d at 836 (¶ 23). This Court applies that same standard upon review of a directed verdict.

¶ 12. Applying this standard to the case at bar, we find that there is substantial evidence in the record to support the directed verdict and the evidence is of such quality and weight that affirmance of the verdict is required. In order for a negligent entrustment claim to lie, the defendant must (l)supply the chattel, (2) know or have reason to know the person he supplies it to, because of his youth, inexperience or otherwise, will use it in a manner involving unreasonable risk of physical harm, and (3) have reason to expect that others may be endangered by the entrus-tee of the chattel. Sligh v. First National Bank of Holmes County, 735 So.2d 963 (¶ 62) (Miss.1999). Singletary allowed Powe to operate the power boat. There was evidence introduced that established Powe had prior boating experience of which Singletary was aware. Tillman did not produce evidence to call into question that experience or accountability. Accordingly, we cannot hold that the trial court erred by denying the directed verdict on negligent entrustment. We next review Tillman’s claim that the matter of punitive damages should have been submitted to the jury.

¶ 13. In order for a trial court to award punitive damages, the plaintiff must demonstrate a willful or malicious wrong or reckless disregard for the rights of others. Paracelsus Health Care Corp. v. Willard, 754 So.2d 437 (¶ 20) (Miss.1999) (citing Valley Forge Ins. Co. v. Strickland, 620 So.2d 535, 540 (Miss.1993)). “Punitive damages are only appropriate in the most egregious cases so as to discourage similar conduct and should only be awarded in cases where the actions are extreme.” Willard, 754 So.2d at 442 (¶ 20).

¶ 14. When punitive damages is an issue, the trial judge initially determines whether to submit the issue to the jury. South Central Bell v. Epps, 509 So.2d 886, 892-93 (Miss.1987). The trial judge is required to review all the evidence presented and determine whether the facts of the case and the conduct of the defendant justifies a jury consideration of punitive damages. Id. quoting Blue Cross & Blue Shield of Miss., Inc. v. Campbell, 466 So.2d 833, 842 (Miss.1984). In this case, Singletary testified that he consumed three beers approximately four hours before the accident. Both Powe and Single-tary testified that Powe was operating the boat prior to the accident. In addition to that, Officer Polk testified that he did not smell alcohol or notice any visible signs of intoxication. Officer Polk even allowed Singletary to drive the boat back to his home. There was no evidence to indicate that Singletary was intoxicated at the time of the accident. The trial judge considered the facts of this particular case, and determined that they did not justify submitting an issue of punitive damages to a jury. This Court agrees.

¶ 15. Because we reverse and remand we find it unnecessary to address the remaining issues.

¶ 16. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS REVERSED AND REMANDED AS TO POWE AND AFFIRMED AS TO SINGLETARY. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

PAYNE, BRIDGES, THOMAS, LEE, IRVING, and MYERS JJ., concur.

McMILLIN, C.J., dissents with separate opinion joined by SOUTHWICK, P.J.

CHANDLER, J., not participating.

McMILLIN, C.J.,

dissenting:

¶ 17. I respectfully dissent as to the majority’s decision to reverse the jury verdict in Powe’s favor because the jury was instructed on the principle of unavoidable accident. The unavoidable accident instruction was properly given, since it was both a correct statement of the law and was supported by evidence in the record. See Turner v. Temple, 602 So.2d 817, 823 (1992). Powe’s theory was that a sudden and unforeseeable collapse of his knee caused him to fall and lose control of the boat and that this was the proximate cause of the accident, as opposed to the various theories of negligence advanced by the plaintiff.

¶ 18. The majority finds the instruction improper, not because it incorrectly recites the applicable law, but because “Powe was aware of his history of reoccurring knee problems, but chose to operate the power boat on a crowded river while standing.” With respect to my colleagues in the majority, the question of whether, based on his prior medical history, Powe should have anticipated and taken greater precaution against a sudden physical collapse of his knee was a question of fact to be resolved by the jury. The instruction fully accommodated that proposition, since it required the jury to find as a matter of fact that the collapse was “unexpected and unforeseeable” before it could apply the concept of unavoidable accident. There was substantial evidence presented concerning the condition of Powe’s knee, but there was no evidence that he had ever before experienced a sudden collapse of the nature he described to the jury. On the evidence in this record, a finding of fact that Powe had no good reason to think that his knee would unexpectedly buckle and cast him away from the boat’s controls was entirely within the realm of the jury’s discretion. I can see no difference between this case and one where a person driving a vehicle suddenly faints or is subjected to a disabling seizure and loses control of his vehicle, resulting in an accident. In such circumstance, a sudden, unanticipated, and unavoidable event is the proximate cause of the accident and thus does not give rise to a claim for negligence.

¶ 19. The instruction properly recited the applicable law and conditioned a result favorable to Powe on the jury’s resolving the critical disputed issues of fact in his favor. That is apparently what the jury did. Whether that verdict was against the weight of the evidence is another matter, but that question cannot be resolved by considering the manner in which this jury was instructed. It was not error to submit Powe’s theory of the case to the jury through an unavoidable accident instruction.

SOUTHWICK, P.J., joins this separate written opinion.