author: SMITH, P.J., McRAE, P. J.,

text:
    Mark HANCOCK and Suzanne Moore, Beneficiaries of the Life Insurance Proceeds of Mary Carlisle v. MID AMERICAN INSURANCE SERVICES, INC. d/b/a American Health and Life Insurance Company and/or Gulf Insurance Company.
    No. 2000-CA-01217-SCT.
    Supreme Court of Mississippi.
    Jan. 30, 2003.

      Jim Waide, Tupelo, Martin D. Crump, Hamilton, D. Kirk Tharp, Victor Israel Fleitas, Tupelo, John P. Fox, Houston, attorneys for'appellants.
    Wade G. Manor, Ridgeland, attorneys for appellants.
   SMITH, P.J.,

for the court:

¶ 1. After purchasing personal accident insurance with death benefits from Mid American Insurance Services, Inc. (“Mid American”) when she rented-a car from Enterprise Rent a Car, in Tupelo, Mississippi, Mary Carlisle was killed in an accident while operating the rental car in Memphis, Tennessee. Mid American refused to pay any insurance benefits to Mark Hancock or Suzanne Moore, Car-lisle’s heirs, alleging a violation of the rental agreement/insurance policy. This action was filed in the Circuit Court of Lee County on August 30, 1996. Mid American was added as a defendant in the Second Amended Complaint. The circuit court determined that there were no disputed facts material to this case and granted summary judgment for Mid American. We find that there are material issues as to whether the type of provision exercised by the company to refuse to pay was not material to the acceptance of the risk or hazard it assumed. We therefore reverse the circuit court’s summary judgment and remand for a trial.

FACTS

¶ 2. Carlisle rented a car from Enterprise and at the same time she exercised her option to purchase personal accident insurance with death benefits. In addition to the rental contract, there was a $50,000 life insurance contract for accidental death benefits that required payment of $1.00 per day while the vehicle was rented. Nine days after renting the car, Carlisle was killed in an accident while driving the rental car in Memphis, Tennessee. Car-lisle’s beneficiaries, Mark Hancock and Suzanne Moore, sought the benefits from Carlisle’s life insurance policy. Mid American withheld payment contending that by taking the car out of Mississippi, Carlisle violated the rental agreement and thereby also violated the insurance policy.

¶ 3. The contract stated that “subject to the provision that ‘[t]his insurance shall not be effective and no payment of any kind shall be made for injury occurring during any period while the insured renter is in violation of the rental agreement with the Lessor ...’” There is no proof that Mid American provided a complete copy of the insurance contract to the decedent. However, on the rental contract, there is a box which reads as follows:

RENTER REQUESTS PERSONAL ACCIDENT INSURANCE (PAI) AT DAILY FEE SHOWN IN ADJACENT COLUMN AND HAS READ THE POLICY CERTIFICATE

(emphasis added). An “X” inside this box has been circled, and Carlisle’s initials are signed next to it. It is clear on the face of the record that Carlisle in her own hand noted that she read the policy certificate. The column to the right of the box indicates that Carlisle was charged $1.00 per day for an 11 day rental period for the insurance.

¶ 4. The rental contract does indicate (by the marking of another box, which is initialed by an employee of the car rental agency) that Carlisle did not obtain permission to drive the vehicle outside of the state. Also, on the reverse side of the contract, in section 13, sub-section (f), near the end of the page, driving outside the state of rental without the written consent of the rental company is declared to be a violation of the rental contract. However, we find no additional information about the insurance policy anywhere in the rental contract nor does it state it would void the insurance contract.

¶ 5. Section G, on the second page of the copy of the insurance policy provided to this Court, lists the exclusions of the accidental death policy. It is on this page that the following language is found: “This insurance shall not be effective, and no payment of any kind shall be made for injury occurring during any period while the Insured Renter is in violation of the Rental Agreement....” Further, on a separate sheet, entitled “Declarations” we find that the policy has a death benefit of $50,000.

¶ 6. The policy clearly states that each insured renter is to be given a statement which summarizes the protection, limitations and requirements of the policy purchased. However, based on the deposition testimony of Mid-American’s representative, it is unclear whether the employees of the car rental agency had reason to know that they were obligated to provide a copy of such information to Carlisle.

STANDARD OF REVIEW

¶ 7. For a summary judgment motion to be granted, there must exist no genuine issue of material fact, and the moving party must be entitled to judgment as a matter of law. Miss. R. Civ. P. 56(c). The standard of review of a trial court’s grant of a motion for summary judgment is de novo. Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 63 (Miss.1988). The burden of demonstrating that there is no genuine issue of material fact falls upon the party requesting the summary judgment. Id. at 63-64. The court must carefully review all evidentiary matters before it; admissions in pleadings, answers to interrogatories, depositions, affidavits, etc., in the light most favorable to the party against whom the motion for summary judgment is made. McFadden v. State, 542 So.2d 871, 874 (Miss.1989).

¶ 8. When a motion for summary judgment is made and supported as provided in Rule 56, an adverse party may not rest upon the mere allegations or denials of his pleadings, his response must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. If any triable issues of fact exist, the lower court’s decision to grant summary judgment will be reversed. Otherwise, the decision is affirmed. Miller v. Meeks, 762 So.2d 302, 304 (Miss.2000) (citing Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983)).

DISCUSSION

WHETHER THE CIRCUIT COURT ERRED BY GRANTING SUMMARY JUDGMENT TO MID AMERICAN INSURANCE, SINCE MID AMERICAN’S BASIS FOR REFUSING TO PAY THE BENEFICIARIES WAS NOT MATERIAL TO THE ACCEPTANCE OF THE RISK OR HAZARD IT ASSUMED.

¶ 9. In Clark v. State Farm Mutual Automobile Ins. Co., 725 So.2d 779 (Miss.1998), this Court expressly reserved the question of whether territorial limitations in insurance policies are against public policy in Mississippi. Id. at 781 n. 2. The Fifth Circuit answered this lingering question in the negative in Boatner v. Atlanta Speciality Ins. Co., 115 F.3d 1248, 1254 (5th Cir.1997).

¶ 10. The Illinois Appellate Court has noted that “[t]he overwhelming weight of authority holds territorial limitations are valid if they apply equally to statutorily mandated uninsured motorist and liability coverages.” Mijes v. Primerica Life Ins. Co., 317 Ill.App.3d 1097, 1102, 251 Ill.Dec. 589, 740 N.E.2d 1160, 1164 (2000) (citations omitted). The last part of that sentence makes the case sub judice different from other eases dealing with this subject. The cases that have found the intoxication exclusions from coverage to be against public policy are dealing with required liability insurance coverage. This is a case involving supplemental life insuranee-not statutorily required liability coverage.

¶ 11. Hancock and Moore assert that the basis of the denial was not material to the acceptance of the risk of hazard to be assumed by the insurance company. Considering the fact that the insurance premium would not have changed if Carlisle had initially stated she was going to travel out of state, they contend that the fact that she did exposed the insurer to no extra risk. Mid American asserts that whether Carlisle misrepresented something on the contract is not the issue. Rather, Mid American contends that the issue is simply contract interpretation. It argues, therefore, that since the prohibition on out-of-state travel is unambiguous then it should prevail. It cites Clark v. State Farm Mutual Automobile Ins. Co., 725 So.2d 779 (Miss.1998), for the proposition that territorial restrictions are upheld when they are clear and unambiguous.

¶ 12. Our holding in Reserve Life Insurance Co. v. McGee, 444 So.2d 803 (Miss.1983) was that the right to recover under an insurance policy should only be denied upon bases which materially affect the acceptance of risk or hazard assumed by the insurer. While that case dealt with an alleged falsity regarding an insured’s health, the basic proposition holds true. Section 83-9-11(3) clearly states, as follows:

The falsity of any statement in the application for any policy covered by Sections 83-9-1 to 83-9-21 may not bar the right to recovery thereunder unless such false statement materially affected either the acceptance of the risk or the hazard assumed by the insurer.

Miss.Code Ann. § 83-9-11(3) (1999). “The materiality of a representation is determined by the probable and reasonable effect which truthful answers would have had on the insurer.” Sanford v. Federated Guar. Ins. Co., 522 So.2d 214, 217 (Miss.1988) (citation omitted). The implied promise not to travel out of Mississippi is akin to a false statement regarding health. Thus, this Court reverses the summary judgment and remands for trial.

CONCLUSION

¶ 13. We find that there are disputed issues of material fact. The circuit court’s grant of summary judgment is reversed, and this case is remanded for a trial.

¶ 14. REVERSED AND REMANDED.

WALLER, EASLEY, AND CARLSON, JJ., CONCUR. PITTMAN, C.J., CONCURS IN PART. COBB, J„ DISSENTS WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ AND GRAVES, JJ.

McRAE, P. J.,

concurring in part and dissenting:

¶ 15. I concur with the majority in finding that there are material issues as to whether the type of provision exercised by the company to refuse to pay was not material to the acceptance of the risk or hazard it assumed. However, I also dissent to the majority’s finding that the territorial limitation provision is valid under this State’s public policy. The exclusion exercised by Mid American was enabled through a practice which should be declared void as against public policy. Furthermore, Mid American should be es-topped from enforcing the clause since it did not furnish Mary Carlisle a copy of the insurance policy.

¶ 16. Our holding in Reserve Life Insurance Co. v. McGee, 444 So.2d 803 (Miss.1983), is not completely inapplicable to the case sub judice. The reasoning which supports this Court’s opinion in that case is based upon the principle that the right to recover under an insurance policy should only be denied upon bases which materially affect the acceptance of risk or hazard assumed by the insurer. Id. However, a better and more applicable statement of such a principle, as it specifically relates to exclusions, was made by the Washington Supreme Court in Eurick v. Pemco Ins. Co., 108 Wash.2d 338, 738 P.2d 251 (1987). The decision states that “exclusions that have been held violative of public policy generally have been those manifesting no relation to any increased risk faced by the insurer, or when innocent victims have been denied coverage for no good reason.” Id. at 253-54.

¶ 17. By incorporating Section 13, subsection (f) of the rental agreement into the life insurance policy, Mid American has created a territorial exclusion which works against the public policy of this State. Mid American’s representative stated that there would have been no increase in the premium charged to Carlisle had she told them she intended to take the ear out of the state. Certainly if the insured’s leaving the state were material to the acceptance of the risk by Mid American in an accidental death policy, there would have been an increase in the $1.00 a day premium. As such, it appears that this exclusion does not bear any relation to the risk assumed by Mid American in the accidental death policy and should be declared void. The provision in question and the manner in which it was incorporated into the insurance policy are violative of public policy.

¶ 18. The exclusion exercised by Mid American was enabled through a practice which should be declared void as against public policy. To allow such use and rental restrictions to be incorporated into the life insurance agreement would render the contract illusory. Budget Rent-A-Car Systems, Inc. v. Ricardo, 85 Hawai’i 243, 942 P.2d 507, 513 (1997). By allowing Mid American to incorporate the territorial limitation into a rental contract, this Court has effectively endorsed the ability of such companies to market and sell insurance policies to the public which can be rendered illusory through the exercise of such catch-all clauses. Such practices should be declared void as against public policy.

¶ 19. Furthermore, the record in this case does not inform us as to whether Carlisle was ever provided with a complete copy of the insurance policy she purchased which would give her notice of the provisions and the limitations of said policy. An exclusion to an insurance policy, even an unambiguous one, should not be enforced against an insured who has not been afforded notice of the exclusion at the time of entering the insurance contract. Mid American should be estopped from enforcing the clause since it did not furnish the policy to Carlisle before her death.

DIAZ AND GRAVES, JJ., JOIN THIS OPINION.


source: Caselaw Access Project

author: COBB, J.,

license: Public Domain

text:
    JACKSON MEDICAL CLINIC FOR WOMEN, P.A., Mercer Lee, III, M.D., Darden H. North, M.D. and Paracelsus Woman’s Hospital, Inc. v. Grace Polles MOORE and Robert Alan Moore, Individually and as Personal Representatives and Wrongful Death Beneficiaries of Robert Alan Moore, Jr., Deceased.
    No. 1999-IA-01286-SCT.
    Supreme Court of Mississippi.
    Jan. 30, 2003.

      Whitman B. Johnson, III, Thomas Creagher Turner, Jackson, Joseph L. McNamara, Ridgeland, attorneys for appellants.
    Dana J. Swan, Richard B. Lewis, Clarksdale, Dennis C. Sweet, III, Jackson, attorneys for appellees.
   COBB, J.,

for the court.

¶ 1. On August 7, 1995, Grace Polles Moore and Robert Alan Moore (the Moores), individually, and as personal representatives and wrongful death beneficiaries of Robert Alan Moore, Jr., filed then-complaint in the Circuit Court of Hinds County, First Judicial District. The Moores claimed medical negligence against the Jackson Clinic for Women, P.A., Dr. A. Mercer Lee, III, Dr. Darden H. North (collectively, Jackson Clinic), and Paracelsus Woman’s Hospital (now the Woman’s Hospital), alleging damages for the wrongful death of their stillborn child, and for personal injuries sustained by themselves. On November 14, 1995, Jackson Clinic filed a motion for summary judgment, claiming the Moores’ action was barred by the two-year statute of limitations for medical negligence, Miss.Code Ann. § 15-1-36. The motion for summary judgment was denied. Jackson Clinic then filed a petition for interlocutory appeal with this Court concerning the statute of limitations issue, which we denied on May 22, 1996.

¶ 2. On February 20, 1997, Jackson Clinic issued a subpoena duces tecum to Mrs. Moore’s previous attorney, Michael Har-tung, to produce all files, correspondence, documents, or other things related to the representation of the Moores in this matter. The Moores filed a motion to quash the subpoena duces tecum, which was granted by the circuit court by order on March 10, 1997. A motion to reconsider was then filed, which was similarly denied.

¶ 3. On October 29, 1998, Jackson Clinic again filed a motion for summary judgment, along with a motion for disclosure of records and other relief, which was denied by the circuit court on July 19, 1999. On April 28, 2000, Jackson Clinic again petitioned this Court for an interlocutory appeal, this time on the issue of waiver of attorney-client privilege, which this Court granted by order on April 13, 2000. See M.R.A.P. 5. Jackson Clinic states its issue on interlocutory appeal as follows:

DOES THE PLAINTIFFS’ VOLUNTARY USE OF ADVICE AND COMMUNICATIONS FROM THEIR FORMER ATTORNEY AS A BASIS TO AVOID DEFENDANTS’ STATUTE OF LIMITATIONS DEFENSE WAIVE THE ATTORNEY CLIENT PRIVILEGE SO AS TO ALLOW DEFENDANTS TO CONDUCT DISCOVERY REGARDING THE FORMER ATTORNEY’S FILE AND ADVICE?

¶ 4. Concluding that Jackson Clime’s appeal is well taken, we reverse and remand.

FACTS

¶ 5. On or about August 24, 1992, Grace Polles Moore, who was pregnant at the time, entered Woman’s Hospital complaining of abdominal pain. Moore was under the care of Dr. Lee and Dr. North, physicians practicing with the Jackson Clinic for Women. It was determined that Moore was suffering from a twisted bowel, which required a cesarian section be performed, along with a resection of her small bowel; the baby was stillborn.

¶ 6. Moore, herself a registered nurse, contacted attorney Michael Hartung in December of 1992, who in turn requested the medical records of her treatment in August from the two doctors, the clinic and the hospital. Hartung forwarded the records to an expert, Dr. Richard A. Nicholls, for review. Dr. Nicholls opined, in a letter dated April 5, 1993, that Jackson Clinic was not negligent and may have in fact saved her life:

Although Mrs. Polles [Moore] presented at multiple times with abdominal pain during her pregnancy, she had a history of multiple gastrointestinal problems and previous abdominal surgeries which alone could have accounted for her abdominal pain, manifesting the signs and symptoms that she presented with. Vol-vulus with gangrene of the bowel is an acute happening, not chronic. There was no way to diagnose this condition until it happened. It is unfortunate that the patient was pregnant at the time, because gangrene of the bowel did cause her baby’s death; however, she was very fortunate that her physicians recognized that she had an acute surgical abdomen and that they acted appropriately because had they not, she would also be dead. Her physicians are not guilty of malpractice, but they are responsible for saving her life.

¶ 7. According to Moore, later that year in November of 1993, she was hospitalized at the Mississippi Baptist Medical Center due to chronic abdominal pain, nausea, vomiting, bloating, and diarrhea, as a result of her short bowel syndrome. Her treating physician referred her to the Mayo Clinic in Jacksonville, Florida. Moore claims that it was during this treatment at the Mayo Clinic, in January of 1994, that “she was alerted to the fact that her treatment in August 1992, may have been the cause of the death of her baby and of her short bowel syndrome.” Moore retained a different attorney, Richard B. Lewis, in April 1994, who then forwarded her medical records to Dr. Charles Cesare, a gynecologist licensed to practice in Mississippi. Dr. Cesare reached a different conclusion than Dr. Nicholls had previously:

Subsequently, on or about September 15, 1994, more complete medical records of Mrs. Moore were made available to me. Based upon the additional records of the hospital, I was able to determine that she did not receive the minimum standard of care from the treating physicians, and from the hospital, Paracelsus Woman’s Hospital. She was not properly evaluated and monitored during the night. Had a proper evaluation been done, her baby could have been saved and her intestine could have been saved.
In my opinion, the type of injury sustained by Mrs. Moore resulting from the medical care given by her treating physicians, as well as Paracelsus Woman’s Hospital, Inc., was a latent injury whose cause could not be readily ascertained except by a thorough review of all medical records by a physician. I am aware that Mrs. Moore is a registered nurse, however, this would not give her the expertise necessary to determine whether or not there was a causal relationship between her injuries and the care which she received on August 24,1992.
On October 8, 1995, I met with Mr. and Mrs. Moore and informed them of my opinion.

STANDARD OF REVIEW

¶ 8. When the issues presented on an interlocutory appeal are questions of law, this Court will review those issues, as other questions of law, de novo. Gant v. Maness, 786 So.2d 401, 403 (Miss.2001).

DISCUSSION

¶ 9. Jackson Clinic devotes a considerable amount of its brief to discussing why the Moores’ causes of action should have been barred by the statute of limitations and why summary judgment should have been granted by the trial court. However, we did not grant this interlocutory appeal to consider that issue. Since this Court has previously denied an interlocutory appeal on the issue on the statute of limitations and summary judgment, we will limit our discussion of that issue to what is necessary to fully understand the issue that is properly before this Court, namely, whether Moore has effectively waived the attorney-client privilege.

A. Statute of Limitations — Discovery Rule

¶ 10. Mississippi has a two-year statute of limitations for medical malpractice claims. Miss.Code Ann. § 15-1-36 (Supp.2002). The action must be “filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.” Id. § 15-1-36(1). This Court has termed this the “discovery rule” and has interpreted the rule to mean that “the operative time is when the patient can reasonably be held to have knowledge of the injury itself, the cause of the injury, and the causative relationship between the injury and the conduct of the medical practitioner.” Sarris v. Smith, 782 So.2d 721, 723 (Miss.2001) (quoting Smith v. Sanders, 485 So.2d 1051, 1052 (Miss.1986)). “Application of the discovery rule is a fact-intensive process.” Sarris, 782 So.2d at 725. Still, if the plaintiff “fails to bring suit because he is incompetently or mistakenly told he does not have a case, we discern no sound reason for visiting the consequences of such on the defendant by delaying the accrual of the claim until the plaintiff is otherwise informed or himself determines to bring suit.” United States v. Kubrick, 444 U.S. 111, 124, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979).

¶ 11. Jackson Clinic argues that the statute of limitations for the Moores’ causes of action began to run upon receipt of Mrs. Moore’s medical records by her former attorney, Michael Hartung, around January of 1993. In that case, the suit would be time barred because the Moores did not file their complaint until more than two and one-half years later. Contrarily, the Moores claim that the injury sustained by Mrs. Moore was latent and was not discovered until sometime between January and September of 1994; thus, the claim was filed well within the two-year statute of limitations. However, this Court need not decide which party is correct as that issue is not now before this Court. The only issue on this interlocutory appeal is whether Moore waived the attorney-client privilege by allegedly revealing otherwise privileged communications with her previous attorney, Michael Hartung, to defeat Jackson Clinic’s motion for summary judgment.

B. Waiver of Attorney-Client Privilege

¶ 12. In Mississippi, the attorney-client privilege is established by the Mississippi Rules of Evidence. Pursuant to our evidentiary rules: “A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional services to the client....” Miss. R. Evid. 502(b). See also Miss. Rules of Prof'l Conduct R. 1.6. It is the attorneys’ duty “[t]o maintain inviolate the confidence and, at every peril to themselves, to preserve the secrets of their clients.” Miss.Code Ann. § 73-3-37(4) (2000).

¶ 13. This Court has said that “the privilege relates to and covers all information regarding the client received by the attorney in his professional capacity and in the course of his representation of the client.” Barnes v. State, 460 So.2d 126, 131 (Miss.1984). And while “[o]nly the client may invoke the privilege,” the client may also waive the privilege in certain circumstances. Id. “Once the client has effectively waived the privilege, the attorney is competent as a witness regarding matters otherwise within the scope of the privilege.” Id. In Bennett v. State, 293 So.2d 1 (Miss.1974), overruled on other grounds by Triplett v. State, 579 So.2d 555 (Miss.1991), we cited the rule concerning “effective” waiver of the privilege by a client:

While a client does not lose the benefit of the privilege where he is compelled, against his protest, to disclose confidential statements, if he voluntarily introduces testimony relating to such communications, his privilege may not thereafter be asserted. Thus, where he voluntarily testified, as a witness, to confidential communications made by him to his attorney, he thereby waives the privileged character of such communications, and he and his attorney may then be fully examined in relation thereto.

Bennett, 293 So.2d at 5 (quoting 58 Am.Jur. Witnesses § 526).

¶ 14. Jackson Clinic asserts that Moore effectively waived the attorney-client privilege in her sworn affidavit where she stated:

Sometime in December of 1992, I consulted attorney Michael Hartung about a possible malpractice action as a result of the previously mentioned medical treatment. I executed a medical release on or about December 23, 1992. I requested that he obtain all pertinent medical records.
On or about April 5, 1993, Dr. Richard A. Nicholls, M.D., who examined the records, wrote a letter to my attorney, a copy of which was later given to me. I was informed that I had no cause of action against the Defendants sometime in April, 1993, by attorney Hartung.

¶ 15. Jackson Clinic further asserts that Moore waived the privilege during her deposition when she testified:

Q. Once you get out of the hospital, how soon- after you get out of the hospital do you go see a lawyer?
A. Oh, the first time I saw a lawyer was December of 1993, around then.
Q. Are you sure it wasn’t December of '92 ...
A. It was probably December of '92
Q. Had you talked with Alexis any about needing to pursue a claim pri- or to the time you went to see a lawyer?
A. Oh, I — this is what I said. I was in the hospital, and I had not spoken to anybody about anything of that nature. I looked at Alexis, and I said, “Something was wrong. Something was real wrong.” And she said, “Grace, I’m glad you said that.” She said, “We’ve talked about it, the family, and we know it, but we didn’t want to say it to you because we didn’t know if you could handle it.”
[...]
Q. Do you know what they did in investigating the claim?
A. All I know that Michael Hartung said was that he sent my records to a physician on the Coast, and that’s all I know.
Q. Did you know what that physician said?
A. Yes. I knew that he had said that, basically, he could not say there was cause for the medical records that he had. What he was reviewing, there was not cause.
[...]
Q. This is your affidavit. It says, “I was informed I had no cause of action against the defendant sometime in April, 1993 by Attorney Hartung.” How many different meetings did you have with Mr. Hartung about your case?
A. To the best of my memory, I saw Michael Hartung one time, and that was it, the initial visit.
[•••]
Q. Was there ever a conversation that you had with him that you remember where he just said, “Look, we are not going to do anything more.” Because you are with Ricky now, and .you were with Hartung, and I’m trying to figure out how did you become notified that he wasn’t going any further with it?
A. I was notified — actually, I — it was— I don’t want to sound ugly, but it was basically, like he thought I had a case, but he didn’t know enough medical people that he was centered in Jackson to send to.
Q. Okay.
A. Kind of like a small-community type thing knowing everybody.
Q. So when you last talk with him, you got the impression he thought there was something there, but he just couldn’t find anybody?
A. Yes I did.
[...]
Q. • — you believed that he thought there was a case there but that he just couldn’t find an expert because of the Jackson community?
A. Kind of, sort of.
[...]
Q. Is that the conversation when you called him to see if you had all your medical records from him that you had the impression he thought there was something there, but he just couldn’t find an expert?
A. That’s what I understand that he said.
Q. Okay.
A. Just — and like I say, it was just off-the-cuff. He knew I had gotten my records. We weren’t pursuing anything, and that was it.

¶ 16. Jackson Clinic claims that through both her affidavit and deposition testimony, Moore voluntarily, knowingly, and without objections disclosed her otherwise privileged communications with attorney Hartung. Moore testified about efforts made by Hartung to obtain and have her medical records analyzed and advice he gave her regarding the viability of her cause of action. Jackson Clinic asserts that these issues are relevant in determining when the statute of limitations for Moore began to run. Jackson Clinic concludes that since Moore effectively waived her attorney-client privilege, it should be allowed to subpoena all files and documents relating to that representation and depose Hartung.

¶ 17. The Moores respond by denying that Mrs. Moore waived the privilege. Instead, they contend that the proffered excerpts from the affidavit and deposition “contain only vague statements of what she understood from her attorney and do not relate to anything which would amount to a waiver of the attorney-client privilege.”

¶ 18. We disagree. While it does not appear that this Court has dealt with this precise issue, at least in the civil action context, other jurisdictions have.

¶ 19. In American Standard, Inc. v. Bendix Corp., 80 F.R.D. 706, 708 (W.D.Mo.1978), American Standard alleged in its interrogatory answers that the fraudulent misrepresentation was unknown to it until discovered by its attorney. The court held that American Standard had waived the attorney client privilege in regard to these communications: “By voluntarily injecting into a litigated case, a material issue which requires ultimate disclosure by the attorney of the information, ordinarily protected by the privilege, the client makes the information discoverable.” Id. at 709-10 (citing 4 Moore’s Federal Practice § 26.60(2), pages 26-229 to 26-232).

¶ 20. In Metropolitan Life Insurance Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 730 A.2d 51, 52-53 (1999), the Connecticut Supreme Court expounded three different scenarios where the attorney-client privilege is waived by voluntarily injecting a material issue into a litigated case:

Because of the important public policy considerations that necessitated the creation of the attorney-client privilege, the “at issue,” or implied waiver, exception is invoked only when the contents of the legal advice is integral to the outcome of the legal claims of the action. Such is the case when a party specifically pleads reliance on an attorney’s advice as an element of a claim or defense, voluntarily testifies regarding portions of the attorney-client communication, or specifically places at issue, in some other manner, the attorney-client relationship.

¶ 21. In the case sub judice, Moore specifically pled reliance on Hartung’s advice as an element of her defense to Jackson Clinic’s motion for summary judgment. Clearly she voluntarily testified regarding communications with Hartung. As such, she has effectively waived the privilege as it relates to the testimony that she gave.

CONCLUSION

¶ 22. When Moore used confidential communications with her attorney to toll the statute of limitations, she used the attorney-client privilege as a sword; fairness requires that she not now be allowed to hide behind the shield of that attorney-client privilege. Therefore, we reverse the trial court’s decision to deny disclosure of attorney Michael Hartung’s communications with the Moores. Further, we remand with instructions to the trial court to order Hartung to produce for in-camera inspection all files, correspondence, documents, or other items pertinent to this matter, beginning with the Moores’ initial contact with Hartung and continuing through the decision that suit should not be filed, made after receiving Dr. Nicholls’ letter of April 5, 1993. These should be delivered to the Hinds County Circuit Court for an in-camera review by the trial judge to determine whether any of these items are relevant to the discovery rule and when the statute of limitations began to run. Jackson Clinic shall be permitted discovery of all such files, correspondence, documents or other relevant items, which the trial judge has determined to be discoverable.

¶ 23. We further direct the trial judge to make specific findings of fact and conclusions of law as to why each item reviewed in-camera is or is not relevant. Finally, the circuit court is instructed to allow Har-tung to be deposed on the issues relevant to the discovery rule and the statute of limitations.

¶ 24. REVERSED AND REMANDED.

PITTMAN, C.J., SMITH, P.J., DIAZ, CARLSON AND GRAVES, JJ„ CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., AND WALLER, J., NOT PARTICIPATING.

      . The Woman’s Hospital joined the motion for summary judgment on December 1, 1995.


author: KING, P.J.,

text:
    Cornelius TAYLOR, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-KA-01714-COA.
    Court of Appeals of Mississippi.
    June 4, 2002.
    Rehearing Denied Sept. 24, 2002.
    Certiorari Denied Jan. 30, 2003.

      T. Jackson Lyons, Jackson, attorney for appellant.
    Office of the Attorney General by: Jean Smith Vaughan, attorney for appellee.
    Before KING, P.J., BRIDGES, and CHANDLER, JJ.
   KING, P.J.,

for the court.

¶ 1. Cornelius Taylor was convicted in the Circuit Court of Pearl River County of sexual battery and child molestation. On appeal, Taylor argues the following issues which we quote verbatim:

I.Whether the evidence was legally insufficient to convict Cornelius Taylor of sexual battery and child molestation where the prosecution’s testimony was contradictory and impeached through the prosecutrix [sic] own testimony and where it was uncorroborated.
II. Whether the trial court abused its discretion in failing to submit the matter to a new jury when the substantial weight of the evidence, as defined by the burden of proof, did not favor the verdicts of guilt [sic] as to sexual batter [sic] and child molestation.
III. Whether error relating to inadmissible hearsay, other inadmissible testimony, and a jury instruction together or singly [sic] prejudiced Taylor’s right to a fair trial.
IV. Whether the trial court abused its discretion in failing to give a special interrogatory with the general verdict forms requesting a factual verification that no juror had considered Taylor’s not testifying in reaching a verdict.

FACTS

¶ 2. On October 20, 1998, Taylor was indicted on three counts of sexual offenses against a child. The indictment charged Taylor with capital rape, sexual battery, and child molestation of his daughter, S.T.

¶ 3. Before trial, Taylor made two motions in limine. In his first motion, Taylor requested the exclusion of any statements made to Dr. Pam Wiseman but not included as a part of her medical report. This motion was denied. Taylor’s second motion in limine requested that the testimony of Kimberly Taylor (the victim’s aunt) be limited to that information included in her written statement of November 20, 1997. The court granted this motion.

¶ 4. At the time of trial, S.T., the victim, was fourteen years old. She testified to three incidents of sexual abuse by Taylor. The first was in May 1994, when she was eight years of age. Taylor, who was taking a bath, told her to undress and get in the bath tub with him. She did and Taylor inserted his penis into her vagina.

¶ 5. The second incident happened in June of 1996 when S.T. was ten years old. As she and Taylor lay on the floor on a mattress, he began to rub his finger in her vagina, and made her touch his penis.

¶ 6. The last incident happened in February of 1997. S.T. was asleep in her bedroom when Taylor came into the room and started rubbing her vagina and masturbating. After this incident, S.T. moved in with her aunt, Kimberly Taylor.

¶ 7. In July of 1997, the Department of Human Services was contacted about allegations of sexual abuse against S.T. In July 1997, S.T. was seen by Dr. Wiseman for evaluation of possible sexual abuse. Dr. Wiseman obtained a medical history but conducted no physical examination. Instead, she referred S.T. to a doctor, who could conduct the appropriate forensic examination.

¶ 8. At trial, Taylor’s date of birth, May 7, 1948, and his age, 42, were stipulated.

ANALYSIS

I.

Whether the evidence was legally insufficient to convict Cornelius Taylor of sexual battery and child molestation where the prosecution’s testimony was contradictory and impeached through the prosecutrix’s own testimony and where it was uncorroborated.

¶ 9. Taylor argues that there was insufficient evidence of penetration and molestation to have convicted him. Taylor argues that there was a lack of medical evidence of penetration and molestation, and that the victim’s testimony was uncorroborated and inconsistent.

¶ 10. Mississippi Code Annotated Section 97-3-95 defines sexual battery as follows: “A person is guilty of sexual battery if he or she engages in sexual penetration with ... (d) A child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.” Mississippi Code Annotated Section 97-3-97 defines sexual penetration as follows: “Sexual penetration includes cunnilingus, fellatio, buggery or pederasty, any penetration of the genital or anal opening of another person’s body by any part of a person’s body, and insertion of any object into the genital or anal opening of another person’s body.”

¶ 11. Mississippi Code Annotated Section 97-5-23 defines molestation as follows:

Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child younger than himself or herself and under the age of eighteen (18) years who is not such person’s spouse, with or without the child’s consent, when the person occupies a position of trust or authority over the child shall be guilty of a felony

Miss.Code Ann. Section 97-5-23 (Rev.2000).

¶ 12. S.T. testified that in June of 1996 when she was ten years old, her father put his finger in her vagina. S.T. testified that in February of 1997 when she was eleven, her father came into her bedroom one morning and started rubbing her vagina and masturbating. These incidents occurred when S.T. was under the age of fourteen.

¶ 13. The Mississippi Supreme Court has held that the “totally uncorroborated testimony of a victim is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other evidence.” Christian v. State, 456 So.2d 729, 734 (Miss.1984).

¶ 14. Moreover, portions of S.T.’s account of these events were corroborated. Two witnesses testified as to the February 1997 incident. Dorothy Taylor, the appellant’s wife, testified to having found Taylor in bed with S.T. under the blankets. Upon witnessing this incident, Dorothy Taylor testified that she screamed and Taylor jumped off of his daughter at that time. Kimberly Taylor testified to having spoken with S.T. about this incident on the same day it occurred.

¶ 15. In reviewing whether the verdict was contrary to the weight of the evidence, “this Court is duty bound to accept as true all evidence favorable to the State.” Johnson v. State, 626 So.2d 631, 633 (Miss.1993). In doing so, the testimony of S.T. was legally sufficient to establish penetration and molestation.

II.

Whether the trial court abused its discretion in failing to submit the matter to a new jury when the substantial weight of the evidence, as defined by the burden of proof, did not favor the verdicts of guilty as to sexual battery and child molestation.

¶ 16. Taylor also challenges whether the verdict was supported by the substantial weight of the evidence. He questions the testimonies of Kimberly Taylor and the babysitter, Betty Odom, who both stated that Taylor failed to deny sexually abusing his daughter when confronted by each of them. Taylor also questions the lack of medical evidence to corroborate S.T.’s account of abuse.

The weight of the evidence is tested in a light most favorable to the State, with all credible evidence consistent with guilt accepted as true and every favorable inference given to the prosecution; reversal may be had only where reasonable and fair-minded jurors could only find the accused not guilty. In determining whether a jury verdict is against the overwhelming weight of the evidence the court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.

Allen v. State, 749 So.2d 1152 (¶ 19) (Miss.Ct.App.1999) (citations omitted).

¶ 17. After so doing, there appears to be substantial and credible evidence upon which fair minded jurors could, and did, find Taylor guilty beyond a reasonable doubt.

III.

Whether error relating to inadmissible hearsay, other inadmissible testimony, and a jury instruction together or singularly prejudiced Taylor’s right to a fair trial.

¶ 18. Taylor claims cumulative error in his third assignment of error. He contends that Kimberly Taylor’s testimony should have been limited to her written statement. He asserts that Dr. Wiseman’s testimony was irrelevant and prejudicial because she failed to examine S.T.

¶ 19. Also, Taylor argues that the trial court failed to give a proper instruction on the law of penetration. Taylor contends that these errors taken separately are reversible error. Additionally, he states that the alleged errors taken together suggest that his right to a fair trial was prejudiced and his conviction should be reversed and the case remanded for a new trial.

Kimberly Taylor’s testimony

¶ 20. These allegations are without merit. A review of the record does not reflect that Kimberly Taylor so deviated from her written statement as to have prejudiced Taylor. While there were numerous objections to this testimony by Taylor, the trial court took great care to generally limit Kimberly Taylor’s testimony-

¶ 21. Rule 103 of the Mississippi Rules of Evidence provides that the admission or exclusion of evidence shall not serve as a predicate for error unless it affects a substantial right of the party affected. The testimony which Taylor complained of did not affect a substantial right. Additionally, when an objection was sustained, the jury was instructed to disregard the testimony. The jury is presumed to follow the court’s instmction. Hall v. State, 785 So.2d 302(¶ 12) (Miss.Ct.App.2001).

Hr. Wiseman’s testimony

¶ 22. The record reveals that Dr. Wiseman’s testimony was limited to her actions in diagnosing and treating S.T.

¶ 23. Mississippi Rule of Evidence 803(4) provides:

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements are made, or when the statements are made, if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances substantially indicating their trustworthiness. For purposes of this rule, the term “medical” refers to emotional and mental health as well as physical health.

¶ 24. Dr. Wiseman was contacted to evaluate S.T. for possible sexual abuse. Because Dr. Wiseman’s actions were for the purposes of diagnosis and treatment, her testimony was relevant and admissible under M.R.E. 803(4).

Trial court’s instruction on law of penetration

¶ 25. Taylor claims to have been prejudiced by the giving of instruction S5, which states:

The Court instructs the jury that if you find from the evidence beyond a reasonable doubt that Cornelius Taylor, engaged in sexual penetration with [S.T.], it is not required that there be a showing of force or violence. Further, the Court instructs the Jury that there is no requirement that there be lacerations or tearing to the vagina if you find that there was sexual penetration, due to the age of the victim.

¶ 26. Jury instructions are to be read as a whole. If in so doing, the court correctly informs the jury of the applicable laws, there is no error. Milano v. State, 790 So.2d 179(¶ 14) (Miss.2001).

¶ 27. The trial court granted instructions D8A, D9A and D10A submitted by the defendant, which addressed respectively, the elements of (1) sexual battery, (2) child molestation and (3) rape. When viewed as a whole, the instructions fully and fairly instructed the jury.

¶ 28. This Court also notes that the complained of language goes to the charge of rape, of which Taylor was acquitted.

IV.

Whether the trial court abused its discretion in failing to give a special interrogatory with the general verdict forms requesting a factual verification that no juror had considered Taylor’s not testifying in reaching a verdict.

¶ 29. Lastly, Taylor says that a special interrogatory should have been submitted to the jury to determine whether his failure to testify was considered in reaching a verdict. The trial court in C-4 directed the jury to not consider and draw no conclusion or inference from Taylor’s failure to testify.

¶ 30. The jury is presumed to follow the court’s instruction. In the absence of evidence of misconduct, no such inquiry is appropriate.

¶ 31. Accordingly, the trial court did not abuse its discretion or violate any of Taylor’s constitutional rights when it refused to give a special interrogatory.

¶ 32. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY OF CONVICTION OF COUNT ONE SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS WITH FIFTEEN YEARS SUSPENDED ON POST-RELEASE SUPERVISION AND CONVICTION OF COUNT TWO OF CHILD MOLESTATION AND SENTENCE OF TEN YEARS WITH FIVE YEARS SUSPENDED ON POST-RELEASE SUPERVISION, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. SENTENCE IN COUNT TWO SHALL RUN CONSECUTIVELY TO SENTENCE IN COUNT ONE. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.

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

      . S.T. had lived with her father, Taylor, all of her life until February 1997. At the time of trial, S.T. was living in Florida with her biological mother, stepfather and brother and sister.

      . In his brief, Taylor states that S.T.'s testimony is inconsistent with a videotape recorded statement in 1998. The record before this Court does not include that videotape, and no consideration will be given to -it.


author: SOUTHWICK, P.J.,

text:
    Troy M. PITTMAN, Jr., a/k/a Troy Myre Pittman, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-KA-01409-COA.
    Court of Appeals of Mississippi.
    June 4, 2002.
    Rehearing Denied Nov. 12 and Dec. 10, 2002.
    Certiorari Denied Jan. 30, 2003.

      Derek L. Hall, Jackson, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS, and IRVING, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Troy Pittman, Jr. was convicted of three counts of sexual battery and two counts of statutory rape. On appeal he argues that the evidence of guilt was insufficient. He also asserts that he received ineffective assistance of counsel. We agree that the evidence was not legally sufficient as to the statutory rape counts but reject the rest of his arguments. We affirm in part and reverse and render in part.

STATEMENT OF FACTS

¶ 2. Because of the nature of the crime, we do not use the victim’s name. Shortly after the birth of their daughter in 1985, Troy Pittman, Jr. and his first wife divorced. He remarried in 1988. Between 1985 and 1990, Pittman had little contact with his daughter. After 1990, Pittman was allowed some visitation. In 1995, Pittman’s ten-year old daughter accused him of molestation. An investigation occurred but no charges were filed. Thereafter, Pittman was required to have a person aged fourteen years or older with him at all times when he was with his daughter. Pittman and his first wife would exchange custody of the child at the sheriffs department.

¶3. In mid-July 1998, the now-thirteen year-old girl began a three week-long visit with Pittman and his second wife. Two days after being returned to her mother on August 5, the child complained of a sore throat and was taken to the doctor. Over the next week, the young girl developed flu-like symptoms and complained of pain in her bottom. On August 13, the child was returned to the doctor. The doctor noticed lesions on her perineum and an anal tear. The doctor swabbed the lesions and sent the sample to be tested at a lab.

¶ 4. On August 14, the girl returned to Pittman’s house for weekend visitation. On August 17, the doctor informed the girl’s mother that the child had tested positive for herpes simplex II or genital herpes. The mother demanded that the girl tell her who could have given her a sexually transmitted disease. At first reluctant, the child finally informed her mother that Pittman had molested and attempted to have sexual intercourse with her during the three-week visitation and during the immediate past weekend visitation.

¶ 5. Pittman was charged with three counts of sexual battery and three counts of statutory rape. After a two-day trial, Pittman was convicted on five counts. This is his appeal.

DISCUSSION

¶ 6. Pittman argues that the evidence was legally insufficient to sustain a conviction as to any count of the indictment. Because of the nature of the evidence in this case, the discussion is necessarily more graphic than is desirable.

1. Motion for judgment notwithstanding the verdict

¶ 7. Pittman filed a motion for a judgment notwithstanding the verdict. Such a motion tests whether there was sufficient evidence as to each element of the crime to have permitted a jury to find guilt. When examining the sufficiency of the evidence, the credible evidence consistent with conviction is taken as true; that requires making reasonable evidentiary inferences that are favorable to the State. Milano v. State, 790 So.2d 179, 187 (Miss.2001). Credibility, weight, and other discretionary determinations are for the jury, not for this appellate court. “Once the jury has returned a verdict of guilty in a criminal case, we are not at liberty to direct that the defendant be discharged short of a conclusion on our part that on the evidence, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty.” West v. State, 437 So.2d 1212, 1214 (Miss.1983).

¶ 8. With these ground rules, we look at the evidence on each count.

¶ 9. Pittman was convicted of three counts of sexual battery. The sexual battery charges were Counts I, V, and VI of the indictment. Pittman’s motion for JNOV raised sufficiency of the evidence issues in regard to all three counts.

A. Sexual Battery — Count I

¶ 10. Count I of the indictment charged Pittman as follows:

On ■ or about the 27th day of July, A.D.1998, [Troy Myre Pittman, Jr.] did willfully, unlawfully and feloniously engage in sexual penetration as defined in Section 97-3-97 ..., to wit: digital penetration of her vagina, with [the named child], a child under the age of 18 over whom the defendant occupied a position of trust or authority, to-wit: the child’s father, in violation of ... Section 97-3-95(2).

That the victim was under eighteen and that Pittman was in a position of trust as the girl’s father were clearly proven. The only contested element here is whether there was digital penetration of the vagina. “Sexual penetration” is defined in part as “any penetration of the genital or anal openings of another person’s body.... ” Miss.Code Ann. § 97-3-97(a) (Rev.2000).

¶ 11. The girl testified that on the date stated in this count, July 27th, Pittman while alone with her “started moving closer to me and then first he started to just rub his hand up and down my leg, and then he started to finger me, and then his wife pulled up and he stopped.” The prosecutor asked the girl to clarify what she meant by the phrase “finger me.” She responded that Pittman “put his finger in my private parts.” Later, she said that by “private parts” she meant her vagina.

¶ 12. In his argument, Pittman points to his testimony denying the act and also emphasizes that there was no corroboration. Even so, “the unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other credible evidence, especially if the conduct of the victim is consistent with the conduct of one who has been victimized by a sex crime.” Goodnite v. State, 799 So.2d 64, 66-67 (Miss.2001). It is for the jury to decide whose testimony is credible and whose is not.

¶ 13. Taking the evidence in the light most favorable to the verdict, we cannot say that a reasonable and fair-minded juror could not have found Pittman guilty of Count I.

B. Sexual Battery — Count V

¶ 14. Count V charged Pittman with the same crime as did Count I but alleged that act took place on August 14, 1998. Again the argument focuses on whether there was evidence of penetration. When the child was asked what happened on August 14, she replied only that Pittman “came over there and fingered me.” Pittman argues that this statement is not enough to prove penetration because there was no testimony as to the girl’s “internal definition” of the term “fingered.”

¶ 15. We have already discussed this in reference to Count I. Pittman’s argument in effect is that the witness had to on each count restate her definition of this phrase. We hold that it is not necessary for her to explain each time that she used the word. Absent a contrary indication, she still must have been using the phrase in the same way as for her earlier testimony.

¶ 16. The evidence as to Count V was legally sufficient to sustain a conviction.

C. Sexual Battery — Count VI

¶ 17. Count VI charged Pittman with another act of sexual battery. A new date was charged, and the sexual penetration charged was through the act of “(cunnilingus) oral sex.... ” The victim testified that on this occasion Pittman “began to finger me and then he took my clothes off and he put his mouth down on my private parts.... ” The prosecutor asked her, “when you say that he put his mouth on your private parts, did he put his tongue on your vagina?” She replied, “Yes, sir.”

¶ 18. What is necessary to commit sexual battery in this way has been addressed by the Supreme Court. “[P]roof of contact, skin to skin, between a person’s mouth, lips, or tongue and the genital opening of a woman’s body, whether by kissing, licking, or sucking, is sufficient proof of ‘sexual penetration’ through the act of ‘cunnilingus.’ ” Johnson v. State, 626 So.2d 631, 633-34 (Miss.1993). Though there are other definitions such as contrary ones cited to us by Pittman in his brief, the definition from Johnson controls. The evidence was sufficient to prove that element.

D.Statutory Rape — Count II

¶ 19. Pittman challenges the legal sufficiency of the evidence as to both of his statutory rape convictions in much the same manner as he did for sexual battery. Pittman again challenges whether the State presented sufficient evidence on the issue of penetration. Pittman was indicted in Counts II, III, and IV for statutory rape. As Pittman was found not guilty on County III we will not address whether or not the evidence was legally sufficient.

¶ 20. Pittman was charged with the crime of statutory rape. The specific statute named in the indictment defines “statutory rape” as occurring whenever a “person of any age has sexual intercourse with a child who: (i) is under the age of fourteen (14) years; (ii) is twenty-four (24) months younger than the person; and (iii) is not the person’s spouse.” Miss. Code Ann. § 97-3-65(l)(b) (Rev.2000). “Sexual intercourse” is defined as “a joining of the sexual organs of a male and female human being in which the penis of the male is inserted into the vagina of the female.” Miss.Code Ann. § 97-3-65(5) (Rev.2000).

¶ 21. Some of the elements are all but uncontested. The child was under the age of fourteen, and Pittman was more than two years older. The remaining element clearly demanded by the statute, and as we will point out what was not shown by the evidence, is that there be an actual insertion of the male sexual organ into the victim’s vagina. Other sexual crimes may be occurring, -but the rape statute requires the act just described.

¶ 22. The acts described in Count II occurred on July 30,1998. The child testified that Pittman “started to finger me and then he pulled off my shorts and he rubbed his penis up and down me.” The prosecutor asked the girl whether Pittman “put his penis on [her] vagina,” and she replied that Pittman did so. When asked to explain what she meant by saying that Pittman “rubbed it up and down,” the witness responded that Pittman “never would stick it in, he’d just rub up and down me.” She also testified that Pittman ejaculated on her.

¶23. Thus there is no evidence that Pittman inserted his penis into his daughter’s vagina on that date as charged in the indictment. He was committing a crime, but it was not statutory rape.

¶ 24. During jury deliberations, it became obvious that the jury was having difficulty with reconciling the definition of statutory rape with the testimony that they heard. The jury sent a note to the judge which asked whether the jury should consider “rubbing of the penis on the vagina [and] ejaculating” to be sexual intercourse. The judge wrote the jury that they had the legal definition and that he could not elaborate. Later, the jury sent another note stating that they were deadlocked on two of the statutory rape counts because of the “penetration” issue.

¶ 25. The State argues first that it was only required to prove that there “was some penetration of the victim’s vagina by the defendant’s penis.” See Wilson v. State, 606 So.2d 598, 599 (Miss.1992). That is true, but the girl stated that Pittman made no attempt to penetrate her with his penis.

¶ 26. A central problem may have been that the jury quite understandably could not recall what evidence applied to which count. The one statutory rape count in which there was definite evidence of penetration, Count III, resulted in a not guilty verdict from the jury. As to that count, the child testified that Pittman “took my clothes off, and he’d rub his penis up and down me, and that time he tried to stick it in me, but I wouldn’t let him and he’d say that I — that I have the head in and I’d just keep on fighting because it hurt so bad.” When asked again what Pittman stated about the “head” during this encounter, the girl testified that Pittman said that “he nearly had it in, he had it in.” Here, there was testimony that Pittman penetrated the girl, but this testimony went solely to Count III of the indictment. On that Pittman was acquitted.

¶ 27. Another note sent to the judge by the jury requested that someone read to them the child’s testimony regarding the dates of the various events. The jurors were told that the testimony had not yet been transcribed and that they must rely on their memories. A later note indicated that the jury was deadlocked on Count II and III of the indictment, both statutory rape counts, but had already found Pittman guilty of Count IV, the third statutory rape count. It might be that the jury believed the girl’s testimony as to Count III actually applied to Count IV.

¶ 28. This case is a troubling example of practical problems created by multiple count indictments based on events very similar in nature but occurring on different dates.

¶ 29. Alternatively, the State argues that it was not required to prove penetration. In cases of statutory rape in which the victim is under sixteen years old, “it shall not be necessary to prove penetration where it is shown the genitals, anus or perineum of the child shall have been lacerated or torn in an attempt to have sexual intercourse with the child.” Miss.Code Ann. § 97-3-65(4) (Rev.2000). The premise of that provision appears to be that a vigorous effort to commit the crime may have occurred, but because of the stage of the victim’s physical development the crime could not be completed despite the perpetrator’s worst intentions. There was some testimony from both the victim and a physician at trial that the girl had suffered from an anal tear. The child testified that she thought this tear occurred because she was constipated, a response elicited after being asked why she went to the doctor for strep throat. The jury did not receive an instruction that penetration need not be proved if it was shown that the genitals, anus or perineum was torn.

¶ 30. In any event, it was not demonstrated that the tear was received in an attempt to have intercourse. Indeed, as to this count the victim testified that Pittman had not tried to penetrate her.

¶ 31. We must reverse Pittman’s conviction for statutory rape as to Count II. That then takes us to whether we should enter judgment for a lesser-included offense. Since Pittman was charged with the elements of statutory rape, he was on notice of the need to defend on each element. Perhaps because of juror confusion over the different counts, Pittman was found guilty of having sexually penetrated the victim even though there was no evidence of that. However, there was ample evidence of the remaining elements of the offense — that the victim was under fourteen, the perpetrator more than two years older, and that sexual contact less than penetration had occurred.

¶ 32. The Supreme Court recently examined whether there are lesser-included offenses to statutory rape and concluded that there might not be. “The lustful touching of a child under fourteen is not necessarily a lesser included offense of statutory rape. Lustful touching is, however, a lesser related offense.” Richardson v. State, 767 So.2d 195, 200 (Miss.2000). The elements of a lesser, non-included offense are not all contained in the greater. Therefore, such an offense is not automatically charged in an indictment charging the greater. Miss.Code Ann. § 99-19-5 (Rev.2000). When a defendant requests a lesser non-included offense instruction, the absence of an indictment on that offense is waived. Griffin v. State, 533 So.2d 444, 448 n. 2 (Miss.1988).

¶ 33. Since we find no clear lesser-included offense to statutory rape, and Pittman did not request a lesser non-included offense instruction, we reverse and render due to the absence of evidence on one of the elements in the count. Shields v. State, 722 So.2d 584, 585-86 (Miss.1998).

E. Statutory Rape — Count IV

¶ 34. Count IV of the indictment also charged Pittman with statutory rape, differing from Count II only in the date of the occurrence. This rape was said to have been committed on August 4, 1998.

¶ 35. The child was asked to provide details of the act. She stated that Pittman “started to finger me, and then he took my clothes off and rubbed his penis up and down me again.” The prosecutor specifically asked the witness whether Pittman inserted his finger into her vagina to which she replied that he had. The prosecutor never asked whether Pittman inserted his penis into her vagina.

¶ 36. This testimony would support a conviction for sexual battery. However, the evidence would not support a conviction for statutory rape because what she described for this particular date does not fit the statutory definition of “sexual intercourse.” Therefore, we reverse and render Pittman’s conviction as to Count IV.

2. Ineffective Assistance of Counsel

¶ 37. Pittman argues that he should be granted a new trial because his original trial counsel was ineffective. Pittman raises this issue for the first time here.

¶ 38. There are rare occasions in which a Mississippi appellate court considers a claim of ineffective assistance of counsel even when it is made in the direct appeal from the conviction. E.g., Swington v. State, 742 So.2d 1106, 1114 (Miss.1999). The reason that it is not normally permitted is that there is insufficient evidence in the record of the trial and related matters to evaluate the claim.

In recognition of this fact [that the record may be inadequate], the Mississippi Supreme Court has said that, when an ineffective assistance of counsel claim of this nature is raised on direct appeal, the proper resolution is to deny relief without prejudice to the defendant’s right to assert the same claim in a post-conviction relief proceeding. Read v. State, 430 So.2d 832, 837 (Miss.1983).

Willis v. State, 811 So.2d 450, 454 (¶ 8) (Miss.Ct.App.2001).

¶ 39. We should reach the merits on an ineffective assistance of counsel issue on direct appeal only if “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Colenburg v. State, 735 So.2d 1099, 1101 (Miss.Ct.App.1999). If the issue is not examined because of the state of the record, and assuming the conviction is affirmed, the defendant may raise the ineffective assistance of counsel issue in post-conviction relief proceedings. Read, 430 So.2d at 841.

¶ 40. We now turn to Pittman’s allegations. He finds that his counsel provided ineffective assistance in these ways: (1) trial counsel withdrew a motion to introduce evidence of false accusations allegedly made by the child victim against three individuals, including Pittman, (2) trial counsel failed to file a motion to suppress evidence that both the child and Pittman tested positive for genital herpes, (3) trial counsel elicited testimony concerning a DUI charge filed against Pittman previously suppressed by the circuit court, (4) trial counsel failed to file a motion to suppress past allegations by the child that Pittman had fondled her, (5) trial counsel allowed leading questions, (6) trial counsel did not cross examine two witnesses, and (7) trial counsel allowed the introduction of the results of a medical test by someone other than the person conducting the test.

¶ 41. “[B]efore counsel can be deemed to have been ineffective, it must be shown (1) that counsel’s performance was deficient and (2) that the defendant was prejudiced by counsel’s mistakes.” Sanders v. State, 801 So.2d 694, 702 (Miss.2001). There is a presumption that defense counsel is competent, that defense counsel’s decisions are strategic, and that “counsel’s performance falls within the range of reasonable professional assistance .... ” The presumption may be rebutted if the defendant can demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

¶ 42. We find that the allegations for which some means for evaluation appear in the record fall within the general presumptions just outlined. For the others, there is not enough to consider in this record. For example, prior to trial Pittman’s counsel filed a motion regarding his desire to introduce evidence of allegedly false allegations earlier made by this victim against other people. See M.R.E. 412(b)(2)(C). At a pre-trial hearing, Pittman’s counsel stated that he would not pursue the matter. The prosecutor informed the court that he and defense counsel discussed the motion prior to the hearing and that the counsel “has stated that they will abandon the matter.” Pittman’s counsel confirmed that. There is no indication in the record as to why defense counsel abandoned this motion. We have no way of knowing on this appeal whether the evidence actually existed and whether it would have created an issue of false allegations.

¶ 43. There is no reason in this case to ignore the general rule that charges of ineffective assistance of counsel are better considered in post-conviction relief proceedings.

¶ 44. THE JUDGMENT OF THE CIRCUIT COURT OF ALCORN COUNTY OF CONVICTIONS OF COUNT I SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS; COUNT V SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS, AND COUNT VI SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. THE JUDGMENT OF CONVICTIONS IN COUNTS II AND IV ARE REVERSED AND RENDERED AND PITTMAN IS ACQUITTED AS TO THESE COUNTS. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ALCORN COUNTY.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, AND CHANDLER CONCUR. BRANTLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


author: IRVING, J.,

text:
    Derwin Russell BOZEMAN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-KA-01669-COA.
    Court of Appeals of Mississippi.
    June 25, 2002.
    Rehearing Denied Oct. 22, 2002.
    Certiorari Denied Jan. 30, 2003.

      Ross Parker Simons, Attorney for Appellant.
    Office of the Attorney General by Deirdre McCrory, Attorney for Appellee.
    Before SOUTHWICK, P.J., THOMAS, and IRVING, JJ.
   IRVING, J.,

for the court.

¶ 1. Derwin Bozeman was convicted of murder by a Jackson County Circuit Court jury and was sentenced to a life term in the custody of the Mississippi Department of Corrections. Bozeman has prosecuted this appeal from the denial of his post-trial motion for a judgment notwithstanding the verdict or in the alternative for a new trial. Bozeman challenges the constitutionality of the statute which provides the terms and conditions for early release of inmates serving a life sentence, and the trial court’s ruling on comments made by the prosecuting attorney in closing argument. Finding no reversible error, we affirm.

FACTS

¶ 2. According to the State’s evidence, the facts are as follows. Bozeman and his wife, Lisa, were having marital difficulties that resulted in a separation. On or about the second day of the separation, Bozeman telephoned Lisa at her parents’ home where she and the couple’s two young children were living and asked her to come home. Lisa refused. Bozeman then offered to come over and get Lisa and the children and bring them back to what had been the family residence for a visit. Lisa again refused, fearing that Bozeman would not bring her back. In a final effort to convince Lisa that his intentions were innocent, Bozeman suggested that Lisa’s brother, Jamie, who was also living at the parents’ home, could come with her and the children. Lisa agreed and Bozeman drove over and picked up Lisa, Jamie and the two children, Upon arrival at Boze-man’s residence Jamie was asked by Boze-man to remain outside with the children so that he and Lisa could talk.

¶ 3. Once the couple was alone, Bozeman again pleaded with Lisa for a reconciliation. When she refused, he became upset and pulled a gun from the back waistband of his trousers. With the gun in his hand, Bozeman went to the door and asked Jamie to come inside but told the children to remain outside. Once Jamie was inside the residence, Bozeman closed the door and pointed the gun at him. Bozeman asked Jamie if he wanted to “start something” to which Jamie responded, “I don’t want any problems, please don’t do this.” Bozeman then shot and killed Jamie.

¶ 4. Following the shooting, Bozeman instructed Lisa to call 911 and threatened to kill her, the children and the rest of her family if she did not corroborate his claim of self-defense in the shooting. Initially, Lisa did as she was told; however, after Bozeman was taken into custody, she told the authorities that Bozeman did not act in self-defense.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Constitutionality of Statute

¶ 5. Bozeman alleges that the statute, Mississippi Code Annotated section 47-5-139(1)(a) (Rev.2000), which governs when and how he can seek an early discharge from his sentence is unconstitutional. That statute reads in pertinent part as follows:

(1) An inmate shall not be eligible for the earned time allowance if:
(a) The inmate was sentenced to life imprisonment; but an inmate, except an inmate sentenced to life imprisonment for capital murder, who has reached the age of sixty-five (65) or older and who has served at least fifteen (15) years, may petition the sentencing court for conditional release.

Bozeman argues that the statute discriminates against everyone who is less than fifty years of age at the time of sentencing and gives preferential treatment to those fifty years of age and over, in violation of the Fifth and Fourteenth Amendments of the United States Constitution and Article 3, Sections 14 and 31 of the Mississippi Constitution.

¶ 6. This issue was not raised in the lower court; consequently, the State argues that the issue is procedurally barred. As support for this argument, the State cites the holding in Fleming v. State, 604 So.2d 280, 292 (Miss.1992), that constitutional arguments that are not asserted at trial are waived. The State argues that further support for imposing the procedural bar can be found in Colburn v. State, 431 So.2d 1111 (Miss.1983), wherein the supreme court ruled as follows with regard to an attack on the constitutionality of Mississippi Code Annotated section 97-3-7(2) (Rev.2000):

The constitutionality of section 97-3-7(2) was never raised in the trial court. Appellant filed no demurrer, motion to quash, or objection, nor was mention made in his motion for a new trial as to the constitutionality of section 97-3-7(2). This Court has continuously adhered to the rule that questions will not be decided upon appeal which were not presented to the trial court and that court given an opportunity to rule on them. Only matters of jurisdiction may be raised for the first time on appeal.
Appellant, by failing to attack the constitutionality of section 97-3-7(2) by proper motion waived any error in this regard and cannot now seek reversal on this ground in this Court.

Id. at 1113-14 (citations omitted). Lastly, the State cites the holding of Gatlin v. State, 207 Miss. 588, 594, 42 So.2d 774, 775 (1949), wherein the Mississippi Supreme Court declared that it will not rule on the issue of the constitutionality of a statute unless such a ruling is necessary to the disposition of the case.

¶ 7. Bozeman counters that Mississippi appellate courts have the power to recognize plain error where substantial rights are affected and when fundamental rights are violated, procedural rules give way to prevent a miscarriage of justice as the supreme court held in Gray v. State, 549 So.2d 1316, 1321 (Miss.1989).

¶ 8. However, this Court is mindful that in Taylor v. State, 754 So.2d 598, 603(¶ 11) (Miss.Ct.App.2000), this Court observed that:

“The plain error doctrine has been construed to include anything that ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ” Our analysis, therefore, necessarily includes a determination of whether there is an error that is some deviation from a legal rule, whether that error is plain, clear or obvious, and whether the error is prejudicial in its effect upon the outcome of the trial court proceedings.

(citations omitted).

¶ 9. Bozeman makes no claim that the lower court erred in any way that was prejudicial in its effect upon the outcome of his trial court proceedings, and this Court finds no such error. As the State correctly points out, the application of Mississippi Code Annotated section 47-5-139 to Bozeman’s situation might become the basis of a petition for post-conviction relief, but it is not ripe for review on direct appeal of his conviction and sentence as it played no role in either. Since Bozeman makes no claim of error on the part of the lower court, there is no decision by the lower court for this Court either to affirm or to reverse. “Therefore, we conclude our review of this issue by simply resolving it adversely to him.” Millender v. State, 734 So.2d 225, 233(¶ 33) (Miss.Ct.App.1999).

2. Closing Argument by Prosecutor

¶ 10. Bozeman claims that reversible error occurred when the prosecutor made the following comments during closing argument:

And I keep hearing this stuff about deliberate design. Well, he didn’t intend for the victim to come over so he could shoot him. Deliberate design does not have to come into effect in a given time-frame. If you walk in this room now, and I’ve never seen you before, or any one of you, I can pick up that gun, shoot you dead as a hammer. If I do that, that’s deliberate design. It’s at the instant I pull the trigger.

Bozeman concedes that he did not make a contemporaneous objection, but argues that he preserved the right to object by calling the matter up in his post-trial motion for new trial or in the alternative a judgment notwithstanding the verdict. The trial court denied his motion, finding that there was no contemporaneous objection to the comments and that the comments did not constitute error.

¶ 11. The State, citing Monk v. State, 532 So.2d 592, 600 (Miss.1988), argues that Bozeman’s failure to make a contemporaneous objection waived the issue on appeal, and that the issue is not revitalized by virtue of its belated appearance in his post-trial motion. The State is correct. Clearly, Bozeman is procedurally barred for lack of a contemporaneous objection. Walker v. State, 671 So.2d 581, 597 (Miss.1995).

¶ 12. Procedural bar aside, the Mississippi Supreme Court has held that the test for determining whether closing argument is so prejudicial that an objection should be sustained or a new trial granted is “whether the natural and probable effect of improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by prejudice.” Harvey v. State, 666 So.2d 798, 801 (Miss.1995); Johnson v. State, 596 So.2d 865, 869 (Miss.1992). The trial court exercises considerable discretion in applying this test and in ruling on whether arguments are overly prejudicial, considering the circumstances of each case. Harvey, 666 So.2d at 801.

¶ 13. This Court does not find that the trial court abused its discretion in finding that the prosecutor’s comments were harmless. Nor do we find that the natural and probable effect of the comments was to create unjust prejudice against Boze-man so as to result in a decision influenced by prejudice. Accordingly, the trial court is affirmed on this issue.

¶ 14. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

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


author: MYERS, J.,

text:
    L.C. BENJAMIN, Appellant, v. CORNWELL WELL SERVICE, Appellee.
    No. 2001-CA-00888-COA.
    Court of Appeals of Mississippi.
    June 25, 2002.
    Rehearing Denied Sept. 17, 2002.
    Certiorari Denied Jan. 30, 2003.
    D.L. Jones, Jr., Jackson, Attorney for Appellant.

      Joseph L. McNamara, Donna H. Wright, Ridgeland, John Michael Coleman, Attorney for Appellee.
    Before McMILLIN, C.J., MYERS, and CHANDLER, JJ.
   MYERS, J.,

for the court.

¶ 1. This is an appeal from a grant of summary judgment in the Circuit Court of Lincoln County, with the Honorable Keith Starrett presiding. L.C. Benjamin sued Cornwell Well Service for negligent en-trustment of a deadly weapon, a truck, after he was run over by the truck. Finding that no disputed material facts existed, the court granted summary judgment in favor of Cornwell. It is this holding of the court that Benjamin now appeals. Finding no error, we affirm.

FACTS

¶ 2. In the morning hours of October 11,1998, L.C. Benjamin was run over by a Cornwell Well Service truck. This truck was driven by Robert Bryan Smith, a friend of George Case, the Cornwell employee entrusted with the truck. While employed as a floor hand for Cornwell, Case was allowed use of a company-owned truck for travel to and from job sites. He was instructed that he was the only person allowed to drive the truck, that he was not to drink and drive, and that he was not to use the truck to travel to purchase alcohol. He was also prohibited from having passengers in the truck other than those employed with Cornwell.

¶ 3. On the morning in question, Smith came to Case requesting a ride into town. Case refused but finally relented. However, Case permitted Smith to drive because Case was very hung-over from the previous night. Unbeknownst to Case, Smith had a suspended license due to a previous DUI arrest. After Smith struck Benjamin, Smith fled the scene in the truck. Later the police located the truck and Case and took Case in for questioning.

STANDARD OF REVIEW

¶ 4. Our standard of review for summary judgment is de novo. We will not affirm summary judgment “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Singleton v. Ratliff, 757 So.2d 1098(¶ 6) (Miss.Ct.App.2000) (quoting Spartan Foods Systems, Inc., v. American Nat’l. Ins. Co., 582 So.2d 399, 402 (Miss.1991)). All that is required of a non-moving party to survive a motion for summary judgment is to establish a genuine issue of material fact by the means available under M.R.C.P. 56(c). Id.

DISCUSSION

¶ 5. In order for the master to be liable for damage caused by his servant, the servant must be acting within the course and scope of his employment. Partrige v. Harvey, 805 So.2d 668, 670(¶ 5) (Miss.Ct.App.2002).

In order for the master to escape liability, it must be shown that the servant, when the wrongful act was committed, had abandoned his employment and gone about some purpose of his own not incident to his employment.

Id. Case was not acting within the course and scope of his employment when he allowed a non-employee to drive his truck on the way into town. In addition, this accident occurred on a Sunday morning. Sunday is not one of the days that Case works for Cornwell and a trip to town does not qualify as being in the scope of his employment, since it was not “of the same general nature of, or incidental to, the conduct authorized” by his employer. Id.

¶ 6. Benjamin asserts that because Cornwell did not fire Case the time he was caught with a non-employee passenger, he was negligently retained and liability can be imputed to Cornwell through Case. We are unable to see the causal connection between Case carrying a passenger and Case allowing someone else to drive his vehicle which then struck a pedestrian. Benjamin wants this Court to reverse the ruling of the lower court because he claims the material fact in question is whether Case was negligently retained. With the record provided, we likewise find that summary judgment was appropriate.

¶ 7. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Shirley Caryn ARMSTRONG, Appellant, v. John L. ARMSTRONG, Appellee.
    No. 2001-CA-00826-COA.
    Court of Appeals of Mississippi.
    July 16, 2002.
    Rehearing Denied Oct. 1, 2002.
    Certiorari Denied Jan. 23, 2003.
    Nicholas Van Wiser, Biloxi, attorney for appellant.

      David C. Frazier, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES, and BRANTLEY; JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. James L. Armstrong filed suit against his ex-wife, Shirley Caryn Hanson, to determine what portion of his stock benefit and savings plan his former wife was entitled to under their 1983 judgment of divorce. The chancellor determined that she should receive the specific number of shares that equaled one-half of the number of shares that were in the plan at the time of divorce. Ms. Hanson appeals. She alleges that since the date of the divorce, stock splits and additional stock paid as interest have more than quadrupled the number of shares to which she is entitled. We largely agree with this position, though with one modification that we will discuss. Consequently, we reverse and remand for computation of Ms. Hanson’s ownership.

STATEMENT OF FACTS

¶ 2. James L. Armstrong and Shirley Caryn Hanson Armstrong were divorced on December 16, 1983, after almost nine years of marriage. The judgment of divorce provided tp each party one half of the ownership of certain listed property, including the former husband’s stock plan.

All of the shares in [Mr. Armstrong’s] stock benefit plan and savings plan through his employer, Chevron, U.S.A., accumulated through the date of this Judgment. The actual cash value of the member account stock and savings plans are unknown at the present time, but are to be ascertained by mutual agreement of the parties.

An internal Chevron memorandum entered into evidence revealed that at the time of separation, each party was entitled to 349.966 shares of stock in the Contingent Profit Sharing Plan and 24.126 shares of stock in the Employee Stock Ownership Program (ESOP) account. Though the judgment refers to its own 1983 date and Chevron’s figures apparently are from the 1982 separation, the parties do not dispute the initial computation of shares of stock.

¶ 3. Instead, the suit concerns dividends and stock-splits since 1983. Chevron usually paid dividends on a quarterly basis to shareholders who held shares as of the relevant closing date. During the time period in question, Chevron paid cash dividends. The dividends paid on stock held in the account were used to purchase additional shares of Chevron stock.

¶ 4. In addition to these dividends that apparently were being paid on a regular basis since the divorce, Chevron in 1994 also had a two-for-one stock split. In the traditional stock split, a hypothetical shareholder who holds 50 shares of ABC Corporation worth ten dollars per share would after a two-for-one split hold 100 shares worth five dollars per share.

¶ 5. Whether Ms. Hanson is to be left solely with the original 1983 number of shares despite one stock split and numerous payments of dividends in the form of fractional shares is impacted by an agreement that was signed in 1989. On June 2, 1989, Ms. Hanson signed a letter agreement, later signed by Mr. Armstrong on July 7. There is evidence that the letter agreement was prepared at the request of Mr. Armstrong. It was addressed to the Profit Sharing/Savings Plan Administrator at Chevron. Because of changes in federal statutory requirements regarding the division of retirement plans under divorce decrees, greater clarity was needed. The relevant language included “that we have reached the following agreement as to how [the judgment of divorce] is to be implemented with respect” to the stock benefit and savings plan. The letter stated that both signatories agreed that Ms. Hanson could request 24.126 shares in kind or cash from the ESOP account and 349.966 shares from the contingent account. According to the document, “the amounts distributed to her ... shall be in complete satisfaction of her court-awarded interest ... and [Ms. Hanson] hereby releases and discharges the Plan from any and all other claims she may have” in regards to the Chevron accounts.

¶ 6. Just a few weeks after the agreement, Davy Marshall of Benefits Administration for the Chevron Corporation sent Ms. Hanson a letter containing a benefit election form. This July 20, 1989 letter informed her of the exact number of shares due her and noted that “[t]here will be no accruals made to your shares.” The term “accruals” refers to both dividend payments and possible stock splits. An attorney for Ms. Hanson responded to this letter. The attorney agreed that the number of shares was correctly stated but insisted that she was “entitled to any and all accruals since ...” separation.

¶ 7. Now knowing of the disagreement, Chevron responded by a September 1989 letter that it would withhold payment of Ms. Hanson’s share of the accounts, plus any accruals since the date of separation, until it “receive[d] a court order directing it specifically to pay such accruals to her.”

¶ 8. No further attempt was made to resolve this issue until Mr. Armstrong retired from Chevron in July 1999. Mr. Armstrong was informed by letter from Davy Marshall dated July 23,1999, that an administrative hold remained on his account because of the unsettled dispute as to the number of shares to which his former wife was entitled. Marshall told him that Ms. Hanson could receive as few as 349.966 shares as per the letter agreement or as many as 1603.4161 shares if she received the full benefit of all accruals since 1982. By the time a hearing was held in this matter, the number of shares had grown to approximately 1664.

¶ 9. Almost immediately, Mr. Armstrong filed suit against his former wife. A hearing was held on October 13 and November 10, 2000. The chancellor entered judgment on April 3, 2001, finding that Mrs. Armstrong was entitled to 349.966 shares from Mr. Armstrong’s contingent account and 24.126 shares from his ESOP account. The chancellor found that Mrs. Armstrong was not entitled to the benefits of dividends paid since 1982 or a May 1994 stock-split. Ms. Hanson appeals.

DISCUSSION

¶ 10. A property settlement agreement is a contract. East v. East, 493 So.2d 927, 931-32 (Miss.1986). Contract interpretation is a question of law reviewed de novo. Warwick v. Gautier Utility Dist., 738 So.2d 212, 215 (Miss.1999).

¶ 11. The chancellor found that neither the judgment of divorce nor the letter agreement addressed the ownership of stock splits or dividends. The chancellor concluded that Ms. Hanson understood the significance of the letter agreement when she signed it. At trial, she denied consulting an attorney before signing the document. However, a discovery admission stated that she was represented by and did consult with an attorney before signing the letter agreement.

¶ 12. The chancellor considered both documents together to determine the intention of the parties. The chancellor found that an “objective interpretation” of the Letter Agreement was that Ms. Hanson “did not intend to receive [the stock split and dividends] through the Judgment of Divorce and is not entitled to [the stock split and dividends] in reference to the Chevron U.S.A. stock.”

¶ 13. Ms. Hanson finds no ambiguity in the 1983 divorce judgment. To her, it provided for her to receive an effective interest as of that date, with all the benefits that later accrued to that interest. The judgment stated that “each are hereby awarded exclusive use, possession, and ownership of one-half (/&) of all property jointly owned by the parties....” The judgment also provided that the “actual cash value of the member account stock and savings plans are unknown at the present time, but are to be ascertained by mutual agreement of the parties.”

¶ 14. Regardless of the manner in which the 1983 judgment should be interpreted, another document is important. No attempt to make the retirement plan ownership clear was made until 1989. The letter agreement stated that its purpose was to express “how the court’s order was to be implemented with respect to the Former Spouse’s marital property interest in Employee’s ESOP Account and Contingent Account under the Plan.” The payment of the agreed number of shares was in “complete satisfaction of her court-awarded interest” in the retirement accounts. Ms. Hanson also agreed to release all future claims to her ex-husband’s accounts. Whatever the 1983 agreement might unambiguously be said to do, this later agreement must be considered as well.

¶ 15. Ms. Hanson argues that this letter agreement was not enforceable due to inadequate consideration. She also claims not to have understood its import. We find that the chancellor adequately dealt with the issue of advice, as Ms Hanson’s admission in discovery to having the assistance of counsel was never properly withdrawn. Insofar as consideration is concerned, we find that the 1989 agreement was a necessary and explicitly referenced supplement to the 1983 judgment. That judgment did not indicate the number of shares to be divided by the parties. ' It specifically provided that the parties would agree later what each was to receive. The letter agreement is simply the fulfillment of this directive. The chancellor was correct in considering it.

¶ 16. We find, though, that the chancellor erred as a matter of law in the interpretation of its effect. The chancellor determined that the letter agreement divested Ms. Hanson of all dividends and any possible stock splits prior to and subsequent to execution of the 1989 Letter Agreement. We find that any stock dividends that accrued prior to that date were relinquished. No coercion, duress, misrepresentation, or any other act by Mr. Armstrong is shown to have led her to the execution of the agreement. She may well have been entitled to more had she refused to sign and instead pressed her position in litigation. The effect of the agreement was to end any dispute. Reaching agreement was its own consideration.

¶ 17. Similarly, though, we conclude that the agreement gave the nearly 350 shares of stock to Ms. Hanson as of that date. Nothing that thereafter occurred could divest her of what she had just received. If 350 shares of stock as of 1989 later became 700 shares, and if those shares were accumulating interest, all of that later accumulation was owned by her beginning in 1989.

¶ 18. The chancellor’s decision had the effect of declaring that Ms. Hanson was not the owner of 350 shares in 1989; she was only assigned the number “350.” When a specific assignment to her was later made, no matter when it occurred, then Ms. Hanson would receive 350 shares. Instead, we find that the 1989 agreement confirmed that Ms. Hanson had 350 shares as of that date. She could request the withdrawal of shares. She had all the incidents of ownership and those shares were vested in her. Whatever benefits accrued to “her” 350 shares since 1989 was hers to enjoy.

¶ 19. Dividend growth needs to be computed on remand. From the date of separation in 1982 to the date of the hearing in December 2000, it appears that 961 additional shares would have been received through dividends and subsequent repurchases. Perhaps instead that dividend growth occurred only after 1989. The appropriate time period to be considered for dividends would begin on July 7, 1989. Thus the one part of Ms. Hanson’s claim that we reject is that she is entitled to the dividends that would have been payable on the 350 shares prior to her execution of the 1989 agreement. That document relinquished any prior dividends. To hold otherwise would declare the agreement a nullity, which we find no basis to do.

¶ 20. On remand, the chancery court should conduct such proceedings as are necessary to determine the number of shares that consist of all stock splits on the 349.966 shares of Chevron stock and all dividends since the July 7, 1989 agreement. Consistent necessary adjustments to the 24.126 shares from the ESOP account also should be made.

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

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

MYERS, J., NOT PARTICIPATING.

      . The appellant's brief informs us that the former Mrs. Armstrong now uses her maiden name of Hanson, which is the name by which we will refer to her.