author: WALLER, Justice,

text:
    David Allen JONES v. STATE of Mississippi.
    No. 2002-KA-00040-SCT.
    Supreme Court of Mississippi.
    Oct. 23, 2003.

      W. Richard Johnson, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorneys for appellee.
    Before SMITH, P.J., WALLER and CARLSON, JJ.
   WALLER, Justice,

for the Court.

¶ 1. David Allen Jones was charged with murder in the shooting death of his wife, Pam, after forensic experts determined that Pam was killed by two gunshots instead of one. At first it was thought that Pam had committed suicide by shooting herself in the side of her head with a .22 pistol. During the autopsy, however, the forensic experts discovered bullet fragments that weighed in excess of what one .22 bullet would weigh. They also found parts of two bullet bases. Because there was only one entrance wound and evidence of two bullet trajectories, suicide was excluded because Pam would not have had sufficient motor skills to fire a second shot. An investigation into Jones’s personal affairs revealed that he frequented internet sex chat rooms, that he had developed a romantic relationship with a woman from Pennsylvania, and that Pam had taken out a loan to pay off Jones’s school loans and later purchased a life insurance policy on herself to pay the loan off in the event of her death. After Pam’s death, Jones went to Pennsylvania to visit the woman he had met in the chat room. Over a year and a half later, in a purely circumstantial evidence case, Jones was convicted of murder and sentenced to life imprisonment.

¶ 2. On appeal Jones raises five issues pertaining to the weight of the evidence, jury instructions, improper closing argument, admission of evidence, and ineffective assistance of counsel. We affirm the conviction and sentence.

FACTS

¶ 3. In January of 1998, Jones, who was, at the time, married to Pam, served as the pastor of the First Baptist Church in Anguilla, Mississippi. While outwardly he led a normal life, in secret he was participating in internet sex chat rooms. His screen name was “Blue Sex.” During November of 1997, he met a woman named Tammy Cattano in a chat room. They began communicating, and every day between January 1 and January 17, Jones and Cattano communicated either via the internet or the telephone. During January, and before Pam’s death, Cattano received a letter from Jones in which he stated that he wanted to visit her in Pennsylvania. He did visit her shortly after Pam’s death and later moved to Pennsylvania. Cattano and Jones eventually parted ways, and at the time of trial, Jones was romantically involved with another woman.

¶ 4. Jones and Pam had borrowed $20,000 to pay off Jones’s seminary tuition and expenses. They then bought a life insurance policy on Pam to pay off the debt if Pam were to die.

¶ 5. Jones was the only person in the home at the time of each of the shots. There was no sign of forced entry. He testified that he found Pam on her bed with a gunshot wound after he had taken his morning shower. He then called for an ambulance and told medical personnel that she had attempted to commit suicide.

¶ 6. Jones was indicted a year and a half later after experts discovered that two shots were fired into Pam’s brain.

DISCUSSION

I. WHETHER THE STATE MET ITS BURDEN OF PROOF IN A CIRCUMSTANTIAL EVIDENCE CASE.

f 7. The State’s case was based purely upon circumstantial evidence, meaning that there was no direct evidence of Jones’s involvement in Pam’s death. The State established motive by testimony that Jones had visited internet sex chat rooms and met Cattano with whom he had a serious relationship. After Pam’s death, Jones actually moved to Pennsylvania to live with Cattano. Also, Pam’s life insurance policy paid off a large debt. The State established opportunity by showing that Jones was the only person in the house during the period of time in which Pam was shot twice. Fragments of two bullets were found in the brain, and there were two bullet trajectories. A neighbor testified that she heard a gunshot between 1:00 and 1:30 a.m. and another between 3:00 and 3:30 a.m.

¶ 8. To sustain a conviction on circumstantial evidence, every other reasonable hypothesis of innocence must be excluded. “[D]irect evidence is unnecessary to support a conviction so long as sufficient circumstantial evidence exists to establish guilt beyond a reasonable doubt.” Neal v. State, 805 So.2d 520, 526 (Miss.2002) (quoting Underwood v. State, 708 So.2d 18, 35 (Miss.1998) (quoting Conner v. State, 632 So.2d 1239, 1252 (Miss.1993), overruled on other grounds, Weatherspoon v. State, 732 So.2d 158 (Miss.1999))). “Circumstantial evidence need not exclude every ‘possible doubt,’ but only every other ‘reasonable’ hypothesis of innocence.” Neal, 805 So.2d at 526 (quoting Tolbert v. State, 407 So.2d 815, 820 (Miss.1981)). “Each case must be determined from the circumstances shown in the testimony and the facts must consistently point to but one conclusion — guilt.” Neal, 805 So.2d at 526 (quoting Hilliard v. State, 749 So.2d 1015 (Miss.1999)).

¶ 9. The State established motive and opportunity. Jones’s claim that Pam committed suicide is not a reasonable hypothesis of innocence. Expert testimony established that (1) Pam was shot twice; (2) there was only one entrance wound; and (3) Pam would not have had the motor function needed to shoot herself in the head the second time. Even if she could have moved her arm to put the gun to her head and pull the trigger, it would have been virtually impossible for her to have lined up the muzzle of the gun with the first gunshot wound.

¶ 10. Jones insists that Pam was suicidal because she was depressed about the death of her father and their inability to adopt a baby. However, several other witnesses testified that she was happy and was planning to host a party. Crediting the evidence and all reasonable inferences most favorable to the State, we find that the jury could reasonably exclude the hypothesis that Pam committed suicide. See, e.g., McDonald v. State, 454 So.2d 488, 493 (Miss.1984).

¶ 11. We find that a jury could conclude that Jones’s defense of suicide did not constitute a reasonable hypothesis of innocence, see id. at 492, and that the circumstantial evidence used to convict Jones was sufficient to establish guilt beyond a reasonable doubt.

II. ALLEGED PROSECUTORIAL MISCONDUCT.

¶ 12. In August of 1998, Jones began dating Kathleen Jameson. They moved in together in March of 1999, and during the trial in September of 2001, they were still together. At some point, Jones told Jameson that there were two bullets in Pam’s head.

¶ 13. The District Attorney’s office did not learn that there were two bullets in Pam’s head until March of 2000, when Steve Byrd faxed a report stating that there were fragments of two bullets in Pam’s head. Steven Hayne, M.D., who had performed the autopsy in March of 1998, amended his report in April of 2000 to reflect this new evidence. Also, based on this new evidence, Jones was indicted for murder in April of 2000. During closing argument the State made the following comments:

When his (Jones’s) current girlfriend testified and I asked her what he had said to her, when he said it, and I asked her about the two bullets. And I asked when she knew about the two bullets. She said that in 1999. Ladies and gentlemen, I didn’t know about the two bullets until March 17, 2000. But she did and the only way that she could have known was if he told her because nobody else knew at that point and time. March 17 is when we found out but she knew in 1999.

Jones contends that he was denied the right to a fair trial because of these comments, which, he says, amounted to testimony by the prosecution.

¶ 14. Counsel is allowed considerable latitude in the argument of cases. Simmons v. State, 805 So.2d 452, 492-93 (Miss.2001); Ivy v. State, 589 So.2d 1263, 1266 (Miss.1991) (citing Craft v. State, 271 So.2d 735, 737 (Miss.1973)). The boundaries are well established, limiting counsel to the facts introduced in evidence, deductions and conclusions he may reasonably draw therefrom, and the application of the law to the facts. Simmons, 805 So.2d at 493; Ivy, 589 So.2d at 1266 (citing Davis v. State, 530 So.2d 694, 701-02 (Miss.1988)). Finally, 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).

¶ 15. Because Jones did not contemporaneously object to the State’s remarks, he is procedurally barred from raising this issue on appeal. However, addressing the merits of his claim, we find that the remarks were appropriate. The State was not “testifying,” as Jones characterizes the remarks. Each one of the above statements was based on admitted evidence. Jameson, Byrd and Dr. Hayne all testified to these facts, and Byrd’s report and the amended autopsy report were admitted into evidence. Furthermore, Jones has shown absolutely no prejudice flowing from these remarks. This claim is without merit.

III. WHETHER IT WAS ERROR TO ADMIT THE .22 CALIBER PISTOL INTO EVIDENCE.

¶ 16. Jones complains that the firearm should not have been admitted into evidence because it was admitted during the testimony of Sheriff Cartlidge, who was a convicted felon. He argues that since Miss.Code Ann. § 97-37-5 (Rev. 2000) prohibits convicted felons from carrying firearms, “the effect of possessing and presenting the firearm as “Exhibit 2” ... is plain error.”

¶ 17. Again, Jones failed to make a contemporaneous objection to the admission of the .22. He is therefore procedurally barred from raising this issue on appeal. However, addressing the merits of the claim, we find it to be frivolous. Sheriff Cartlidge was merely performing a ministerial duty by identifying the .22 during the trial. The .22 was taken from the crime scene on the day of Pam’s death and had been in the custody of the Sheriff’s Department since that day. Just because the Sheriffs Department had been in custody of the firearm does not mean that Sheriff Cartlidge had actual physical possession of it. In any event, section 97-37-5 is not a rule of evidence. This issue is without merit.

IV. WHETHER COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE.

¶ 18. The standard for determining if a defendant received effective assistance of counsel is well settled. “The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant must demonstrate that his counsel’s performance was deficient and that the deficiency prejudiced the defense of the case. Id. at 687, 104 S.Ct. 2052. “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Stringer v. State, 454 So.2d 468, 477 (Miss.1984) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). The focus of the inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. Id.; Burns v. State, 813 So.2d 668, 673 (Miss.2001). We have further held that the “failure to present a case in mitigation during the sentencing phase of a capital trial is not, per se, ineffective assistance of counsel.” McGilberry v. State, 843 So.2d 21, 30 (Miss.2003). Williams v. State, 722 So.2d 447, 450 (Miss.1998) (citing Williams v. Cain, 125 F.3d 269, 277 (5th Cir.1997)).

A.Failure to Prosecute a Motion for Change of Venue

¶ 19. Jones complains that trial counsel filed a motion for change of venue but neither attached any affidavits thereto nor requested a hearing thereon. The motion was based on “the inflammatory nature of the case, the small population of the community of Rolling Fork and Shar-key County, Mississippi, and the pre-trial publicity....” As a result, “the Court was required to rule on the Motion based on responses from the jury pool qualified during the voir dire process at the beginning of the trial.” If a separate hearing had been held, “numerous witnesses could have been summoned to justify a change of venue.”

¶20. The circuit court denied the motion for change of venue after voir dire had taken place. It stated:

The Court, after sampling the vernary [sic] that was called was satisfied that there are sufficient jurors who do not know, and if they do or are aware of him, do under oath state to the Court that they could be fair and impartial to both the State and the Defense. Also the Court will note that there are 42 jurors of which 15 of those jurors are White, the remainder being Black. The population of Sharkey County is approximately 66 or 65 percent Black and 35 to 40 percent White and that works out [to] be about 38 percent of the jurors are White which is a good cross section that reflects the racial makeup of the county. The Court is satisfied that the jurors that are here can fairly try this case and the answers given to the court satisfied the Court that they could (1) do not have an intimate relationship with any of the parties concerned being the Defendant or the alleged victim in this case; and (2) that it is a fair cross section of the community in terms of demographics and therefore the Court will deny the Motion for Change of Venue.

Jones has not presented any evidence that the circuit court’s ruling was erroneous. Therefore, as far as the motion for change of venue pertained to the small population of Sharkey County, Jones’s claim of ineffective assistance of counsel is without merit.

¶ 21. The circuit court did not address pretrial publicity in its ruling. To determine whether a change in venue should have been granted an appellate court looks to the level of pretrial publicity and prejudicial nature of the coverage. Holland v. State, 705 So.2d 307, 336 (Miss.1997). See also Hickson v. State, 707 So.2d 536, 542 (Miss.1997); Fisher v. State, 481 So.2d 203, 215 (Miss.1985).

¶ 22. Jones presents no evidence of the alleged pretrial publicity; therefore, his claim must fail. Davis v. State, 743 So.2d 326, 341 (Miss.1999).

B. Failure to Object to Admission of .22 Revolver

¶ 23. Because Jones’s objection to Sheriff Cartlidge’s introduction of the ..22 into evidence is without merit, his claim of ineffective assistance of counsel on this issue is likewise without merit.

C. Failure to Object to Improper Closing Argument

¶ 24. Because Jones’s objection to the State’s remarks during closing argument is without merit, his claim of ineffective assistance of counsel on this issue is likewise without merit.

D.Failure to Submit Adequate Jury Instructions.

¶ 25. Jones contends that “the instructions offered by defense counsel were inadequate and did not properly instruct the jury on his defense theory of suicide”. He cites the proposition that a defendant is entitled to have the jury properly instructed as to the defendant’s theory of his defense so long as there is some reasonable credible evidence in the record to support it. Gibson v. State, 731 So.2d 1087 (Miss.1998); Underwood v. State, 708 So.2d 18 (Miss.1998); Sayles v. State, 552 So.2d 1383 (Miss.1989).

¶ 26. The record shows that the jury was properly instructed that the State had the burden to prove every element of the crime beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence. The instructions also charged the jury that they were to determine the credibility of the witnesses, and that unless the State met its burden of proof, they were to find Jones not guilty.

¶ 27. The jury was further instructed that

if there is a material fact or a material circumstance in this case susceptible to two interpretations, one favorable and the other unfavorable to David Allen Jones when the jury has considered such fact and circumstance with all the other evidence, if there is a reasonable doubt as to the correct interpretation you the jury must resolve such doubt in the favor of David Allen Jones and place upon such material fact or material circumstance the interpretation most favorable to him.

¶ 28. As stated above, Jones’s defense was that he did not shoot Pam, and he argues that the State did not prove that he shot Pam. This theory was adequately before the jury via the burden of proof instruction given, i.e., that the State must prove every element of murder beyond a reasonable doubt. The jury was instructed that the State must prove that Jones murdered Pam to the exclusion of every other reasonable hypothesis consistent with innocence, including suicide. The jury, by finding Jones guilty of murder, found that suicide was not a reasonable hypothesis.

¶ 29. Jones has not shown that the outcome of the trial would have been different if an instruction on his suicide theory had been given to the jury. The evidence allegedly supporting his theory was clearly before the jury, and it rejected that theory. There is no reasonable probability that a jury would have failed to convict Jones if a suicide instruction had been granted. See, e.g., Ellis v. State, 708 So.2d 884, 887 (Miss.1998). This claim is without merit.

Y. PRO SE ASSIGNMENT OF ERROR.

¶ 30. In his pro se brief, Jones adds an issue regarding the expert testimony of Kurt Kooyer, M. D., a local physician who specialized in pediatrics and internal medicine who was working in the emergency room with Pam was brought in. Dr. Kooyer was called by the State in rebuttal to Jones’s expert witness, Dr. Sterling Meyer. He testified as to brain injuries, and Jones complains that neurological matters was beyond Dr. Kooyer’s expertise. The circuit judge allowed Dr. Kooyer to testify, finding as follows:

[H]e is testifying as to his experience in the medical fields and in emergency field and also as a treating physician of Ms. Jones, Pamela Jones. And I will let him give his opinion. It is not an opinion based upon neurology or some neurology training. But it is an opinion based on experience as an emergency room physician and also as a treating physician of Ms. Jones. So, I will let him give it. And I will let the jury put whatever weight they want to put on his opinion and Dr. Meyer’s opinion and Dr. Haynes’ opinion. The jury is the final determiner of how much weight they will put on the testimony.

¶ 31. “The admission of expert testimony is addressed to the sound discretion of the trial judge.” Coho Resources, Inc. v. McCarthy, 829 So.2d 1, 16 (Miss.2002) (quoting Roberts v. Grafe Auto Co., 701 So.2d 1093, 1098 (Miss.1997)). “Unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion, that decision will stand.” Coho Resources, 829 So.2d at 16 (quoting Roberts, 701 So.2d at 1098).

¶ 32. The circuit judge did not abuse his discretion, and the decision to allow Dr. Kooyer to testify was neither arbitrary nor clearly erroneous. Dr. Kooyer treated Pam when she was brought to the emergency room. He administered several tests, all of which indicated that Pam had suffered severe brain damage as a result of the gunshots. Pam scored a “4” on the scale of the severity of comas, “3” being the most severe. He personally observed her motor function and brain activity. This claim is without merit.

CONCLUSION

¶ 33. Finding no merit in Jones’s assignments of error, we affirm Jones’s conviction for murder and sentence of life imprisonment.

¶ 34. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., COBB, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. DIAZ, J„ NOT PARTICIPATING.

      . A neighbor testified that she heard two gunshots, one around 1:30 a.m., and the other around 3:30 a.m.


source: Caselaw Access Project

author: SMITH, Presiding Justice, McRAE, Presiding Justice,

license: Public Domain

text:
    ROYER HOMES OF MISSISSIPPI, INC. v. CHANDELEUR HOMES, INC.
    No. 2001-CA-01574-SCT.
    Supreme Court of Mississippi.
    Oct. 23, 2003.

      Jack G. Price, Mccomb, Attorney for Appellant.
    Ronald L. Whittington, Mccomb, Attorney for Appellee.
   SMITH, Presiding Justice,

for the Court:

¶ 1. Royer Homes of Mississippi, Inc., appeals to this Court from the final judgment of the Circuit Court of Pike County dismissing Royer’s 1992 lawsuit against Chandeleur Homes, Inc., for unpaid warranty work and receivable accounts. The court below ruled that a 1998 Release Agreement between the Royer and Champion Enterprises, Inc., which acquired Chandeleur, was unambiguous and released Royer’s present claim. We hold that the trial court properly dismissed all claims against Chandeleur including the 1992 Pike County lawsuit. Accord and satisfaction of all of Royer’s claims was properly found based on the December 1998 Confidential Settlement, Release and Indemnity Agreement which released Roy-er’s present claim. We find no merit to Royer’s appeal and affirm the trial court.

FACTS

¶ 2. In 1986, Royer Homes of Mississippi, Inc. (Royer), a manufactured home dealer, entered into sales and distribution contracts with Chandeleur Homes, Inc. (Chandeleur), a manufactured home manufacturer. Under Mississippi law, Royer was required to perform any warranty work on the Chandeleur homes it sold. In 1992, Royer filed suit against Chandeleur in the Pike County Circuit Court for unpaid warranty service and unpaid accounts receivable. The suit remained dormant for several years. In 1995 Chandeleur was acquired by Champion Enterprises, Inc. (Champion). And in 1997, Royer sued Champion in Hinds County Circuit Court alleging, inter alia, that Champion had engaged in a scheme devised to put Royer out of business. Specifically, the Hinds County complaint alleged breach of contract, tortious interference, common law fraud, and violations of anti-monopoly and unfair trade law.

¶ 8. The parties never went to trial on the Hinds County lawsuit. Instead, they entered into a “Confidential Settlement, Release, and Indemnity Agreement” (Release). But after the parties entered this Release in 1998, Royer resurrected the 1992 Pike County claim. Champion argued that the Pike County claim was released by the 1998 Release. The Pike County Circuit Court agreed. It found the Release unambiguous and inclusive of the Pike County claim and dismissed the case.

STANDARD OF REVIEW

¶ 4. This Court has stated that questions concerning the construction and interpretation of contracts are questions of law. Warwick v. Gautier Utility Dist., 738 So.2d 212, 214 (Miss.1999); Miss. State Highway Comm’n v. Patterson Enters., Ltd., 627 So.2d 261, 263 (Miss.1993). We review questions of law de novo. Id.

DISCUSSION

I. DID THE TRIAL COURT ERR IN RULING THAT THE RELEASE AGREEMENT WAS UNAMBIGUOUS, AND THEREFORE RELEASED THE PIKE COUNTY CLAIM?

¶ 5. At issue here is whether the trial court erred in dismissing this litigation as a matter of law holding that the Release Agreement was not ambiguous, therefore Accord and Satisfaction of Royer’s Pike County claim was applicable.

¶ 6. As a preliminary issue, Royer filed suit in Pike County Circuit Court against Chandeleur Homes in September 1992. Chandeleur was acquired by Champion Enterprises in 1995. This fact was acknowledged by Royer in its brief. Royer alleges that Chandeleur owes bonus incentives for past sales and debt for past warranty work.

¶ 7. The question of law/question of fact dichotomy requires a two-step inquiry in contract law. Neider v. Franklin, 844 So.2d 433, 436 (Miss.2003) First of all, it is a question of law for the court to determine whether a contract is ambiguous and, if not, enforce the contract as written. Miss. Transp. Comm’n v. Ronald Adams Contractor, Inc., 753 So.2d 1077, 1087 (Miss.2000); Universal Underwriters Ins. Co. v. Ford, 734 So.2d 173, 176 (Miss.1999); IP Timberlands Operating Co. v. Denmiss Corp., 726 So.2d 96, 106 (Miss.1998). Questions concerning the construction of contracts are questions of law that are committed to the court rather than questions of fact committed to the fact finder. Parkerson v. Smith, 817 So.2d 529, 532 (Miss.2002); Miss. State Highway Comm’n v. Patterson Enters., Ltd., 627 So.2d 261, 263 (Miss.1993). Appellate courts review questions of law de novo. Parkerson, 817 So.2d at 532; Starcher v. Byrne, 687 So.2d 737, 739 (Miss.1997).

¶ 8. In the event of an ambiguity, the subsequent interpretation presents a question of fact for the jury which we review under a substantial evidence/manifest error standard. Clark v. State Farm Mut. Auto. Ins. Co., 725 So.2d 779, 781 (Miss.1998); Lamb Constr. Co. v. Town of Renova, 573 So.2d 1378, 1383 (Miss.1990) (citing Bryant v. Cameron, 473 So.2d 174, 179 (Miss.1985)). If the terms of a contract are subject to more than one reasonable interpretation, it is a question properly submitted to the jury. Mississippi Transp. Comm’n v. Ronald Adams Contractor, Inc., 753 So.2d at 1087; Garner v. Hickman, 733 So.2d 191, 195 (Miss.1999).

¶ 9. The primary purpose of all contract construction principles and methods is to determine and record the intent of the contracting parties. Kight v. Sheppard Bldg. Supply, Inc., 537 So.2d 1355, 1358 (Miss.1989). “In contract construction cases a court’s focus is upon the objective fact — the language of the contract. [A reviewing court] is concerned with what the contracting parties have said to each other, not some secret thought of one not communicated to the other.” Turner v. Terry, 799 So.2d 25, 32 (Miss.2001); Osborne v. Bullins, 549 So.2d 1337, 1339 (Miss.1989). A reviewing court should seek the legal purpose and intent of the parties from an objective reading of the words employed in the contract to the exclusion of parol or extrinsic evidence. The reviewing court is not at liberty to infer intent contrary to that emanating from the text at issue. Cooper v. Crabb, 587 So.2d 236, 239 & 241 (Miss.1991).

¶ 10. This Court has set out a three-tiered approach to contract interpretation. Pursue Energy Corp. v. Perkins, 558 So.2d 349, 351-53 (Miss.1990). Legal purpose or intent should first be sought in an objective reading of the words employed in the contract to the exclusion of parol or extrinsic evidence. Cooper v. Crabb, 587 So.2d at 241; City of Grenada v. Whitten Aviation, Inc., 755 So.2d 1208, 1214 (Miss.Ct.App.1999). First, the “four corners” test is applied, wherein the reviewing court looks to the language that the parties used in expressing their agreement. Pursue Energy Corp., 558 So.2d at 352 (citing Pfisterer v. Noble, 320 So.2d 383, 384 (Miss.1975)). We must look to the “four corners” of the contract whenever possible to determine how to interpret it. McKee v. McKee, 568 So.2d 262, 266 (Miss.1990). When construing a contract, we will read the contract as a whole, so as to give effect to all of its clauses. Brown v. Hartford Ins. Co., 606 So.2d 122, 126 (Miss.1992). Our concern is not nearly so much with what the parties may have intended, but with what they said, since the words employed are by far the best resource for ascertaining the intent and assigning meaning with fairness and accuracy. Simmons v. Bank of Miss., 593 So.2d 40, 42-43 (Miss.1992). Thus, the courts are not at liberty to infer intent contrary to that emanating from the text at issue. Id. (citing Cooper, 587 So.2d at 241). On the other hand, if the contract is unclear or ambiguous, the court should attempt to “harmonize the provisions in accord with the parties’ apparent intent.” Pursue Energy Corp., 558 So.2d at 352. Only if the contract is unclear or ambiguous can a court go beyond the text to determine the parties’ true intent. Id. “[T]he mere fact that the parties disagree about the meaning of a contract does not make the contract ambiguous as a matter of law.” Turner, 799 So.2d at 32; Cherry v. Anthony, 501 So.2d 416, 419 (Miss.1987).

¶ 11. Secondly, if the court is unable to translate a clear understanding of the parties’ intent, the court should apply the discretionary “canons” of contract construction. Pursue Energy Corp., 558 So.2d at 352. Where the language of an otherwise enforceable contract is subject to more than one fair reading, the reading applied will be the one most favorable to the non-drafting party. Leach v. Tingle, 586 So.2d 799, 801-02 (Miss.1991) (citing Stampley v. Gilbert, 332 So.2d 61, 63 (Miss.1976)). Finally, if the contract continues to evade clarity as to the parties’ intent, the court should consider extrinsic or parol evidence. Id. It is only when the review of a contract reaches this point that prior negotiation, agreements and conversations might be considered in determining the parties’ intentions in the construction of the contract. “Of course, the so-called three-tiered process is not recognized as a rigid ‘step-by-step’ process. Indeed, overlapping of steps is not inconceivable.” Id. at 351 n. 6.

¶ 12. Here, the language of the Release specifically states that it is “in settlement of any and all claims, demands, losses, costs, damages and expenses” including “but not limited to” those specified in the agreement. The Release Introduction includes the relevant language “including but not limited to.” The Release Clause releases “any claim of any type in any way related to the business dealings on or before the date of [the] agreement between Royer, the Whites and Releasees.” Champion argues that the release settles “any and all claims that exist(ed) as of the date of the agreement, December 22, 1998.” The scope of the Release is unlimited to the release of claims arising before the execution.

¶ 13. There is no ambiguity in the relief created by the references to the “Hinds County Lawsuit” or the “lawsuit.” Royer offers no explanation of the provisions of the contract which affirm without restriction the agreement constituted the settlement of all matters and “any claim of any time in any way related to business dealings on or before the date of the agreement between Royer, the Whites and the Releasees.”

¶ 14. As to the assertion that paragraph 12 of the Release reserves the present cause of action, Royer ignores the language in that paragraph that specifically addresses warranty claims “hereinafter asserted.” The Reservation of Claims does not identify the pending litigation in the Pike County Circuit Court as a claim not released under paragraph 5 of the Settlement Agreement.

¶ 15. Thus, the circuit court did not err in finding that the Release was unambiguous and released the Pike County claim.

II. DID THE TRIAL COURT PROPERLY FIND AN ACCORD AND SATISFACTION OF ROYER’S PIKE COUNTY CLAIM BASED ON THE RELEASE AGREEMENT?

¶ 16. The Confidential Settlement, Release, and Indemnity Agreement clearly incorporates the elements of accord and satisfaction. This Court has consistently held that accord and satisfaction consists of four basic requirements. Wallace v. United Mississippi Bank, 726 So.2d 578, 589 (Miss.1998); Alexander v. Tri-County Coop. (AAL), 609 So.2d 401, 404-05 (Miss.1992); Lovorn v. Iron Woods Prods. Corp., 362 So.2d 196, 197 (Miss.1978). In Cook v. Bowie, 448 So.2d 286 (Miss.1984), this Court further noted that an accord and satisfaction “must have all the essentials of a contract and may be express, or implied from the circumstances.” Id. at 287 (quoting Roberts v. Finger, 227 Miss. 671, 677-78, 86 So.2d 463, 465 (1956)). First, something of value must be offered in full satisfaction of demand. Wallace, 726 So.2d at 589. Second, the offer must be accompanied by acts and a declaration which amount to a condition that if the thing offered is accepted, it is accepted in satisfaction. Id. Third, the party offered the thing of value is bound to understand that if he takes it, he takes it subject to the conditions. Id. Last and fourth, the party must actually accept the item offered. Id.

¶ 17. As clearly required by the first three elements of a valid accord and satisfaction, there must be a “meeting of the minds of the parties.” Id. (citing Cook, 448 So.2d at 287; (quoting Roberts, 227 Miss. at 677-78, 86 So.2d at 465)). This Court has held that an obligee may execute a valid accord and satisfaction by cashing checks which were offered as full satisfaction of a demand. See, e.g., Lovorn, 362 So.2d at 197-98.

¶ 18. This Court has held that a jury should be allowed to decide the issue of whether a release was obtained in good faith and with the full understanding on the plaintiffs part of his legal rights. Quinn v. Miss. State Univ., 720 So.2d 843, 850 (Miss.1998) (citing Smith v. Sneed, 638 So.2d 1252, 1261 (Miss.1994)); (citing Service Fire Ins. Co. of N.Y. v. Reed, 220 Miss. 794, 72 So.2d 197 (1954); see also Willis v. Marlar, 458 So.2d 722 (Miss.1984)). In construing the release against the university, the party who drafted it, we held that reasonable minds could differ as to what types of risks the Quinns were assuming by signing the release. Quinn, 720 So.2d at 851 (citing Farragut v. Massey, 612 So.2d 325, 330 (Miss.1992)). See Leach v. Tingle, 586 So.2d at 801 (ambiguities in contract should be construed against party who drafted the instrument). Even if the release was not ambiguous, the university would not be relieved of liability. 720 So.2d at 851. Clauses that limit liability are given strict scrutiny by this Court and are not to be enforced unless the limitation is fairly and honestly negotiated and understood by both parties. Id. (citing Farragut, 612 So.2d at 330).

¶ 19. In Farragut v. Massey, we thoroughly discussed releases, their interpretation, and their validity. “[E]very person must be presumed to know the law, and in absence of some misrepresentation, or illegal concealment of facts, the person must abide the consequences of his contracts and actions.” 612 So.2d at 329 (quoting McCorkle v. Hughes, 244 So.2d 386, 388 (Miss.1971)). See also Quinn, 720 So.2d at 850. The Court in Farragut quoted from Sumter Lumber Co. v. Skipper, 183 Miss. 595, 608-09, 184 So. 296, 298-99 (1938), the following language:

The rules for the construction of deeds or contracts are designed to ascertain and to follow the actual or probable intention of the parties and are: When the language of the deed or contract is clear, definite, explicit, harmonious in all its provisions, and free from ambiguity throughout, the court looks solely to the language used in the instrument itself, and will give effect to each and all its parts as written. When, however, the language falls short of the qualities above mentioned and resort must be had to extrinsic aid, the court will look to the subject matter embraced therein, to the particular situation of the parties who made the instrument, and to the general situation touching the subject matter, that is to say, to all the conditions surrounding the parties at the time of the execution of the instrument, and to, what as may be fairly assumed, they had in contemplation in respect to all such said surrounding conditions, giving weight also to the future developments therein about which were reasonably to be anticipated or expected by them; and when the parties have for some time proceeded with or under the deed or contract, a large measure, and sometimes a controlling measure, of regard will be given to the practical construction which the parties themselves have given it, this is on the common sense proposition that actions generally speak even louder than words.

Farragut, 612 So.2d at 329.

¶ 20. In Smith v. First Federal Sav. & Loan Ass’n of Grenada, 460 So.2d 786 (Miss.1984), by its clear and unambiguous terms, the release discharged and acquitted Smith of all liabilities to First Federal arising out of three enumerated corporate business loans. Id. at 790. Smith’s three personal secured loans had no connection with the matters referred to in the release except, of course, for the fact that the secured lender in each instance was First Federal and the debtor in each instance was John Doyle Smith. Id. Although Smith argued that the release was labeled “General Release,” there was no substantive term or provision in the release which fairly provided, expressly or impliedly, release from anything other than claims related to the shopping center. Id. This Court found the limited release was mislabeled “General Release.” Id. The Court presumed that Smith and First Federal were folly aware of these three outstanding loans at the time the release was executed on June 2, 1982. Id. Had they wished to make any provision with reference to those loans, they could easily have done so. Id. Their failure to do so and the absence of language in the release which is broad enough to acquit Smith of any obligations except those arising from or connected with the Times Square shopping center operation resulted in our conclusion that the circuit court correctly held that the release did not affect the three personal secured loans. Id.

¶ 21. In Willis v. Marlar, 458 So.2d 722, 724 (Miss.1984), this Court held that the issue of whether a release was void because of “an absence of good faith and full understanding of legal rights [and the] nature and effect of instrument was misrepresented” was a question of fact for a jury. Accord, Whitehead v. Johnson, 797 So.2d 317 (Miss.Ct.App.2001). See also Samples v. Hall of Miss., Inc., 673 F.Supp. 1413, 1417 (N.D.Miss.1987) (summary judgment denied where plaintiffs alleged that release agreements were not explained to them before signing and that they were told they would not receive severance pay unless they signed the agreements); Garner v. Hickman, 733 So.2d at 196 (“The circumstances are such that a jury should have been allowed to consider whether the so-called release was void because of an absence of good faith and a full understanding of legal rights, misrepresentation of the nature and effect of the document or lack of adequate consideration.”); Smith v. Sneed, 638 So.2d 1252, 1253 (Miss.1994) (summary judgment improperly entered on the issue of the volun-tariness of the plaintiffs release); Alexander v. Myers, 219 So.2d 160 (Miss.1969); City of Meridian v. Godwin, 185 So.2d 433, 439 (Miss.1966) (a jury question presented when employee with fourth grade education signed release that was not explained to him); Tate v. Robinson, 223 Miss. 461, 78 So.2d 461 (1955); Hackler v. Natchez & S. Ry., 157 Miss. 432, 128 So. 325 (1930); Davis v. Elzey, 126 Miss. 789, 88 So. 630, affirmed on suggestion of error 126 Miss. 789, 89 So. 666 (1921) (where a release and settlement is pleaded in bar of action for personal injury, and the evidence conflicts as to plaintiff’s capacity to make an agreement, the question is for the jury, and its'decision is binding).

¶ 22. In Willis, this Court reversed the grant of a directed verdict by the trial court and held that a jury question was presented as to the validity of a release and whether the release was void because of an absence of good faith and full understanding of legal rights, whether the nature and effect of the instrument was misrepresented or whether there was a failure of consideration or at least grossly inadequate consideration for execution of the instrument. Willis, 458 So.2d at 724. In that case, the parties were involved in a motor vehicle accident. The Willis vehicle was damaged beyond repair, and Mrs. Willis complained of neck pain and was treated at a local hospital and released. Id. at 723. Mrs. Marlar’s insurance company delivered a check for $6500 representing the property damage payable to Mrs. Willis and Ford Motor Credit Company. Later, Mrs. Willis signed a release but was assured by State Farm that her medical bills would be paid. Id. State Farm refused to pay medical bills later incurred and cited the release. The release was in the amount of $6,924, of which $6,500 went to Ford Motor Credit. Id. at 724. At trial, Mrs. Marlar’s motion for a directed verdict was granted. This Court reversed and stated that a jury question had been created as to whether the release was void. Id.

¶ 23. In Alexander v. Myers, the Court upheld a jury award of $10,000. It found that the release obtained from the injured party, who had little more than a sixth grade education, and his 19-year-old wife, was procured through fraud. Alexander, 219 So.2d at 160-63. Alexander was paid $125 to sign the release. The Court held that the inadequacy of the amount paid to the appellee did not per se constitute fraud but “was a factor to be considered by the jury in determining whether or not the appellee was deceived and whether the appellee was satisfied in receiving only $125 in full and complete settlement of all his injuries, expenses, disability, pain and suffering.” Id. at 161. The Court found that a clear cut issue of fact as to fraud and misrepresentation was presented by Alexander concerning the procurement of the release. Id. at 162.

¶24. In Tate v. Robinson, 223 Miss. 461, 78 So.2d 461, the Court reversed the sustaining of the defendants’ demurrer to plaintiffs replication to the defendant’s plea of release and held that a factual question existed as to the circumstances of procuring the release. Id. at 463. Mrs. Tate was injured in a motor vehicle accident as a result of the negligence of her son-in-law and two daughters. Id. at 461. Mrs. Tate was assured by the insurance agent who procured the release that she was releasing only her son-in-law and not her two daughters. Id. at 462. When she later sued her daughters, she found out that the release also covered them. The trial court sustained the defendant’s demurrer to plaintiffs replication based on the release? The Court held that the demurrer should not have been granted and that the issue of whether or not the release should be avoided should be presented to a jury. Id. at 463.

¶ 25. In other eases cited by Chandeleur, the Court upheld the application of releases in cases where fraud or misrepresentation was not an issue. In Houser v. Brent Towing Co., 610 So.2d 363 (Miss.1992), the Court affirmed the granting of summary judgment based on a written release. Houser was injured while employed by Brent Towing and executed a release for $160,000 in settlement of his claim. Id. at 363-64. He subsequently sued Brent Towing for an unpaid medical bill, arguing, that despite the language of the written release, it was the intent of the parties that Brent Towing would pay all medical expenses incurred prior to the payment of the settlement funds. Id.

¶ 26. In McCorkle v. Hughes, 244 So.2d 386 (Miss.1971); Pearson v. Weaver, 252 Miss. 724, 173 So.2d 666 (1965); and Pearce v. Pierce, 214 Miss. 344, 58 So.2d 824 (1952), the Court upheld verdicts for the defendants based on releases executed by the plaintiffs. In each case there was a bench trial and the plaintiffs were allowed to fully develop their arguments concerning the circumstances surrounding the execution of the releases. In Pearson, the Court, quoting from Fornea v. Goodyear Yellow Pine Co., 181 Miss. 50, 65 66, 178 So. 914, 918 (1938), stated:

While the law recognizes that there is no method known to the law by which to make people prudent, and that experience shows that people often imprudently make contracts, including the signing of releases, yet every person must presume to know the law, and in the absence of some misrepresentation or illegal concealment of facts, the person must abide by the consequences of his contracts and actions. In the light of the fact that people are not prudent, and may at times be unjustifiably imposed upon, this Court has been liberal in reviewing the transactions where one party might have the advantage over another party in experience, knowledge, and wisdom; but in the absence of fraud, deceit, or fiduciary relations of some kind, the court cannot relieve a person from the consequence of his acts merely because he has not acted prudently or diligently about his contracts or other matters.

173 So.2d at 669.

¶ 27. In Service Fire Ins. Co. of N.Y. v. Reed, 220 Miss. 794, 72 So.2d 197, 198 (1954), the plaintiff argued that he was coerced into signing a release under threat of criminal prosecution. In agreeing with his argument, the Court “recognized that there were circumstances in which a person could be coerced into signing a release and that in such cases, releases obtained under said circumstances could possibly be avoided.” Smith, 638 So.2d at 1261. The Court in Reed looked to threat of criminal prosecution if the release was not signed, the fact that Reed was not represented by counsel when he signed, the superior bargaining position of the insurance company, and Reed’s lack of education. 72 So.2d at 198.

¶ 28. What all the cases make clear is that where there are allegations made as to the validity of a release due to fraud, misrepresentation, adhesion or other inequities then the case properly goes to the jury or fact finder. As stated in Smith v. Sneed: “[s]uch an approach is consistent with other decisions of this Court wherein the Court has held that, relating to releases, issues of good faith, voluntariness, and duress were questions properly submitted to a jury.” Id. (citing Willis v. Marlar; City of Meridian v. Godwin; Davis v. Elzey). The court went on to say:

The rationale for these cases was explained by this Court in Kansas City, M. & B. Ry. Co. v. Chiles, 86 Miss. 361, 38 So. 498 (1905). In Chiles, an employee of the railroad was injured by its alleged negligence. Although he had signed a release, the injured employee sued and won. The railroad appealed, arguing that it should have been granted a directed verdict in view of the release. In holding that the lower court properly submitted the question of whether the defendant obtained the release in good faith with a full understanding on the part of the plaintiff of his legal rights to the jury, this Court stated: No release of this nature shall be upheld if any element of fraud, deceit, oppression or unconscionable advantage is connected with the transaction. In passing on the validity of such release, when assailed, all surrounding circumstances should be fully developed, and the relative attitudes of the contracting parties clearly shown. So that the jury, in the clear light of the whole truth, may rightly decide which story bears the impress of verity.

Smith, 638 So.2d at 1261-62.

¶ 29. In Derouen v. Murray, 604 So.2d 1086 (Miss.1992), a shareholder who owned 50% of closely held corporation challenged the propriety of the sale of corporation’s assets. Derouen and Murray were each fifty percent shareholders in H & D. Id. After considerable difficulty in working together and after the corporation has been transferred several times, Deurouen executed a handwritten release in which he acknowledged “receipt of $5100.00 from H.L. Murray as payment in full for any and all debts between us as of this the 28th day of December 1985, for our business dealings dated December 9, 1982, to date.” Id. at 1089. He signed and dated the release. Id. In 1986, he sued Murray charging and demanding an accounting of all assets and monies coming into his hands in favor of H & D Seafood, Inc. and a declaration declaring and paying over to plaintiff a fifty percent of all interest on that money in the form of dividends. Id. at 1090.

¶ 30. The Court held that Derouen released Murray “from any and all further obligations” between them and had no cause of action against Murray. Id. The court dismissed Derouen’s suit finding that the document spoke for itself and was clear and unambiguous. Id. There was no evidence of fraud, duress, or mistake or the like, “certainly not evidence such that we might disturb the Court’s implicit finding that the release is effective according to its tenor.” Id. We also took note of the absence of any clear and convincing parol evidence that the release meant anything than what it provided. Id. The release by its terms addressed “debts between us”— Derouen and Murray. Id. It released all claims Derouen has or had against Murray arising out of “our business dealings.” Id.

¶ 31. Under Farragut v. Massey, the trial court here properly found the Release Contract unambiguous and, by its plain language, constituted an accord and satisfaction. The trial court properly found accord and satisfaction by the consideration paid for the release of “the Claims” which is expressed in the introductory recitation of the release.

¶ 32. In December 1998, Royer received $2,080,000 as settlement of all claims asserted including those which could have been asserted against Chandel-eur’s parent company, Champion Enterprises, and all of its parents, subsidiaries and affiliates. At that time, the Pike County lawsuit in question was pending, and those claims were asserted. The Release expressly stated that Royer’s receipt of settlement funds represented a full accord and satisfaction of “any and all claims which arose or may arise from any prior business dealings” between Royer and Champion. It is absurd to think that Chandeleur would have paid over $2 million to settle with Royer and not settle any and all claims. That is clearly what was contemplated by the parties in the Release Agreement. The trial court was correct.

CONCLUSION

¶ 33. We hold that the trial court was correct in dismissing Royer’s lawsuit as the Release Agreement was not ambiguous and the intent was to release the Pike County claim also. Therefore, we affirm the trial court’s judgment.

¶ 84. AFFIRMED.

PITTMAN, C.J., WALLER, COBB, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

McRAE, Presiding Justice,

Dissenting:

¶ 35. Since the trial court did not properly follow the law with regard to contract construction and conducted an insufficient analysis of the issues presented under the law its judgment should be reversed, and this case should be remanded for further proceedings. Despite the majority’s contentions, the trial court did not conduct a complete review of the issues according to the law; and therefore, the only proper disposition is to reverse and remand the case. For this reason, I dissent.

¶ 36. In interpreting a contract, the cardinal rule is to give effect to the parties’ intentions as reflected in the contract. Holland v. Mayfield, 826 So.2d 664, 669 (Miss.1999). Such interpretation must be conducted by using objective, not subjective, standards. Simmons v. Bank of Miss., 593 So.2d 40, 42 (Miss.1992). See also Cooper v. Crabb, 587 So.2d 236, 239 & 241 (Miss.1991) (Legal purpose or intent should first be sought in an objective reading of the words employed in the contract to the exclusion of parol or extrinsic evidence).

¶37. Accordingly, the first concern is with what the parties said in the contract, since “words employed are by far the best resource for ascertaining intent and assigning meaning with fairness and accuracy.” Miss. Transp. Comm’n v. Ronald Adams Contractor, Inc., 753 So.2d 1077, 1084 (Miss.2000). We look to the “four corners” of the contract whenever possible to determine how to interpret it. Id. Indeed, all parts of a contract should be harmonized and given effect, if at all possible. Hewitt v. Frazier, 219 So.2d 149, 153 (Miss.1969).

¶ 38. When the language of a contract is “clear, definite, explicit, harmonious in all its provisions, and free from ambiguity throughout, the court looks solely to the language used in the instrument itself, and will give effect to each and all its parts as written.” Farragut v. Massey, 612 So.2d 325, 330 (Miss.1992) (quoting Sumter Lumber Co. v. Skipper, 183 Miss. 595, 184 So. 296 (1938)). The court shall read the contract as a whole, so as to give effect to all of its clauses. Warwick v. Gautier Utility Dist., 738 So.2d 212, 215 (Miss.1999). Where there is an inconsistency between general provisions and specific provisions of an agreement, the specific provisions ordinarily qualify the meaning of the general provisions. This rule can be invoked when necessary to make clear that which is doubtful. Williams v. Batson, 186 Miss. 248, 187 So. 236 (1939).

¶ 39. Finally, only if the language is unclear or ambiguous can the court go beyond the text to determine intent. Turner v. Terry, 799 So.2d 25, 32 (Miss.2001). And where a contract is doubtful or ambiguous, any ambiguity can be construed against the drafter. Banks v. Banks, 648 So.2d 1116, 1121 (Miss.1994) (“When the terms of a contract are vague or ambiguous, they are always construed more strongly against the party preparing it.”).

¶ 40. The trial court, found that the Release was not ambiguous;- and therefore, it included the Pike County claim. In making that determination, its analysis failed in two respects. It failed to conduct a thorough fact finding and then failed to apply the correct law.

¶41. The pertinent provisions of the Release Agreement read as follows:

This Confidential Settlement, Release and Indemnity Agreement (The Agreement) is entered into ... in favor of Champion ... in settlement of any and all claims, demands, losses, costs, damages and expenses, including but not limited to Redman’s denial of Royer’s request that Redman sell Royer product for Royer’s Gulfport, Mississippi location; Redman’s termination of Royer as an authorized retail distributor of its products in March 1997; the appointment of Jackey Simmons as a Redman retailer in Brookhaven, Mississippi; all related personal and physical injury claims of Larrye Joe White and Patsy White arising out of Redman’s denial of Royer’s request that Redman sell Royer product for Royer’s Gulfport, Mississippi location, Redman’s termination of Royer as an authorized retail distributor in Brookhaven, Mississippi, and more fully described in the pleadings filed in this cause, all discovery, interrogatory responses, depositions, affidavits, motions, briefs, and arguments of counsel to the Court, as well as any and all claims which arose or may arise from any prior business dealings between Royer ... and Releasees (the “Claims”), including but not limited to, those claims which, at any time, have been asserted in and are [sic] could have been the subject of litigation of Civil Action No. [ XXX-XX-XXXX ] on the docket of the Circuit Court of the First Judicial District of Hinds County, Mississippi (the Lawsuit.) Royer and the Whites declare that it is their intention to grant, by and through this Agreement, a complete release to all Releasees from any Claims asserted by Royer and the Whites, or which could have been asserted by them, in the Lawsuit, or in any way related to or arising from the Claims, and further to fully defend, indemnify, and hold harmless Releasees from and against any and all claims ... which have been or could be asserted hereafter against Releasees by Royer or the Whites, or which in any way arise from the Claims ...
2. RECEIPT. Royer and the Whites agree to accept in full accord and satisfaction of the Claims the sum of [left blank], the receipt and sufficiency of which are hereby acknowledge by Royer and the Whites, as full accord and satisfaction of the Claims and as full consideration for the execution of this Agreement ...
5. RELEASE. For and in consideration of the Settlement Funds paid by Releasees, Royer and the Whites, for themselves and each of their agents, employees, affiliates, heirs, successors and assigns, hereby and forever acquit, forgive, release and discharge Releasees, ... from any and all causes of action ... arising out of the Claims, all matters which were or could have been asserted in the Lawsuit, and any claim of any type in any way related to the business dealings on or before the date of this agreement between Royer, the Whites and Releasees ...
6. DISMISSAL. Royer, the Whites and their counsel of record in the Lawsuit agree that they shall immediately obtain dismissal with prejudice of all pending claims and actions and previously dismissed claims and actions that were dismissed without prejudice against the Releasees in Civil Action No. 251-97-I141CTV on the docket of the Circuit Court of the First Judicial District of Hinds County, Mississippi ...
7. INDEMNITY. Royer and the Whites agree to fully defend, indemnify and hold harmless Releasees from and against any claim ... related to or arising out of the Claims, the matters asserted in the Lawsuit or referenced in paragraph 8 of this Agreement [the Dismissal provision] ...
12. RESERVATION OF CLAIMS. The language of this Agreement notwithstanding, nothing in this agreement shall be construed to release any claim Royer may have against [Champion] for properly submitted and documented but unpaid warranty or service work; for properly submitted but unpaid accounts receivables; for any warranty claim properly submitted and documented hereafter asserted so long as such warranty claim arises during the warranty period ...

(emphasis added).

¶ 42. Champion argues, and the majority agrees, that the Release settles “any and all claims that exist(ed) as of the date of [the] agreement, December 22, 1998.” Royer, however, argues that, when read as a whole, the Release is ambiguous and, particularly since it contains very specific references to the Hinds County claim, designated as “the Lawsuit,” it cannot be interpreted to include the Pike County claim. Royer also points out that the words “including but not limited to” cannot be reconciled, or harmonized, throughout the Release with the more specific and predominate references to “the Lawsuit” and the specific provisions of the Release. Royer asserts that the words “including but not limited to” modify only those claims and possible claims that did or could have come to light, or could later come to light, “the Claims” under the pleaded facts and allegations of the Hinds County “Lawsuit.” “The Claims” are solely modified and/or qualified by very specific discovery responses or events which led to the Hinds County lawsuit. Royer also argues that since Champion knew the Pike County claim was pending when the Release was drafted, it should have been explicitly included. Finally, Royer argues that under the Reservation provision, the Pike County claim is clearly excluded from the scope of the Release.

¶ 43. Initially, this Release was the product of a rather intimidating complaint — one involving antitrust, unfair trade practices and tortious interference allegations. Moreover, it is clearly a product of “the Lawsuit” filed in Hinds County. The Pike County claim is one for unpaid warranty service and unpaid receivable accounts. Therefore, the subject matters of these claims are markedly different.

¶ 44. Second, the Release Introduction is very specific to the allegations of the Hinds County complaint, but includes indefinite “including but not limited to” language. The Dismissal provision references only claims relating to or potentially relating to the Hinds County claim. The Receipt provision (consideration paid) is specific to “the Claims” as defined in the Introduction, without any reference to inclusion of any other claims. However, the Release Clause releases “any claim of any type in any way related to the business dealings on or before the date of [the] agreement between Royer, the Whites and Releasees.”

¶ 45. Looking at the four corners of the Release in an attempt to harmonize all of the particular provisions, it becomes clear that the Release is most specifically concerned with the allegations of the Hinds County complaint, or “the Lawsuit,” and “the Claims,” as Royer argues. However, the words “including but not limited to” are generally included, thus indicating that the scope of the Release is unlimited as to the release of claims arising before the execution of the Release.

¶ 46. This gives rise to ambiguity. Indeed, these provisions cannot be harmonized, particularly in light of the Dismissal provision. It does not provide for the dismissal of any pending claim other than those relating to the Hinds County suit. It does not dismiss the Pike County claim even though the parties were fully aware it was pending. These provisions are inconsistent.

¶ 47. As cited, where there is an inconsistency between general provisions and specific provisions of an agreement, the specific provisions ordinarily qualify the meaning of the general provisions. This rule can be invoked when necessary to make clear that which is doubtful. Williams, 187 So. at 239. Subject to certain qualifications, all circumstances accompanying a transaction may be taken into consideration in construing an agreement. Id. Given these rules of construction and the fact that the Release is the product of the Hinds County lawsuit, as well as the fact that there are consistently specific references to that suit the specific language should govern the scope of the Release. The specific provisions of the Release related to Hinds County claim.

¶ 48. On this point, Royer also argues that the Pike County claim should have been explicitly included in the Release since Champion knew it was pending in court. Mississippi does not have an explicit rule requiring that a release mention the claim(s) to be released but our sister jurisdictions do. In Texas, for example, the rules are these:

To effectively release a claim, the releasing instrument must “mention” the claim to be released. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 938 (Tex.1991). Any claims not “clearly within the subject matter” of the release are not discharged, even if those claims exist when the release is executed. Id. It is not necessary, however, for the parties to anticipate and identify every potential cause of action relating to the subject matter of the release. Keck, Mahin & Cate v. National Union Fire Ins. Co., 20 S.W.3d 692, 698 (Tex.2000).

Baty v. Protech Ins. Agency, 63 S.W.3d 841, 848 (Tex.App.-Houston 2001). See also Grimes v. Andrews, 997 S.W.2d 877, 884 (Tex.App.-Waco 1999) (finding that the appellant’s claims for wrongful termination and discrimination, which were filed in federal court, were not released in a settlement agreement referring only to the state court cause number under which the appellant’s workers’ compensation claim was filed).

¶ 49. Regardless of the absence of Mississippi authority on point regarding the necessity of inclusion, the present Release is at the very least ambiguous. Its specific provisions do not reconcile with its general. And throughout, “the Claims,” the subject of the Release, are modified by events occurring only in connection with the Hinds County lawsuit while the “including but not limited to” language covers every conceivable claim between the parties — past, present and future. Notwithstanding this ambiguity, the Release does not capture those claims reserved by the reservation provision, which reads as follows:

RESERVATION OF CLAIMS. The language of this Agreement notwithstanding, nothing in this agreement shall be construed to release any claim Royer may have against [Champion] for properly submitted and documented but unpaid warranty or service work; for properly submitted but unpaid accounts receivables; for any warranty claim properly submitted and documented hereafter asserted so long as such warranty claim arises during the warranty period ...

¶ 50. This provision reserves two classes of claims: (1) warranty and accounts receivable claims asserted prior to the execution of the Release, and (2) warranty claims arising after the execution of the Release so long as they arise during the warranty period. The Pike County claim squarely falls into the Reservation Provision, since it is a preexisting claim for unpaid warranty work and unpaid accounts receivables.

¶ 51. In conclusion, the Release is ambiguous. As such, the ambiguity is to be construed against the drafter — Champion. Banks, 648 So.2d at 1121. Additionally, the Pike County claim is reserved by the Reservation Clause. The parties therefore should be heard on their intent regarding the making of this Release. Accordingly, this case should be reversed and remanded for further proceedings.

¶ 52. As for the accord and satisfaction arguments made by Chandeleur, the majority erroneously finds that the Release Agreement did provide accord and satisfaction of Royer’s Pike County claims. However, as already discussed above, the language of the Release does not support such a finding. The relevant portion of the Release reads as follows:

2. RECEIPT. Royer and the Whites agree to accept in full accord and satisfaction of the Claims the sum of [left blank], the receipt and sufficiency of which are hereby acknowledged by Royer and the Whites, as full accord and satisfaction of the Claims and as full consideration for the execution of this Agreement,

(emphasis added).

¶ 53. The consideration paid was for release of “the Claims” as indicated in the introductory recitation of the Release. However, as discussed above, the Release Agreement is ambiguous; therefore, a determination as to this issue cannot be made until sufficient fact finding and analysis is done at the trial court.

¶ 54. As for the trial court’s dismissal of the Pike County claims as having no factual issue to present to the jury, as already stated above, such a finding cannot be made upon the factual findings conducted and the analysis employed by the trial court. This Court has consistently held that contracts should be interpreted according to their specific terms and conditions. Warwick, 738 So.2d at 215. Where language in a legal instrument is without gross ambiguity, neither parol testimony nor other extrinsic evidence is admissible to construe the meaning of the language. Cooper, 587 So.2d at 241. Absent ambiguity, there are no facts to be submitted to a jury. Hobgood v. Koch Pipeline Southeast, Inc., 769 So.2d 838 (Miss.Ct.App.2000). The trial court found the Release unambiguous and, therefore, dismissed the action. However, the trial court erred for the reasons cited above.

¶ 55. The Release is ambiguous as it applies to the Pike County suit that was pending at the time. The separate provisions do not clearly indicate that the Pike County claim was intended to be released. As such, the trial court cannot properly dismiss the Pike County claim until sufficient fact finding has been conducted and the proper legal analysis is applied.

¶ 56. It would be absurd to think that Royer and Champion were dismissing the lawsuit in Pike County without putting language to that effect in the Hinds County claim. The trial court’s order should be reversed, and this case should be remanded for further proceedings. For the above-stated reasons, I dissent.


text:
    Cheryl LADNER v. Woodrow LOGAN.
    No. 2002-CA-00634-SCT.
    Supreme Court of Mississippi.
    Oct. 23, 2003.

      Sheila Havard Smallwood, Glenn Louis White, Petal, Attorneys for Appellant.
    David Alan Pumford, Erik M. Lowrey, Robert R. Marshall, Hattiesburg, Richard Anthony Filce, Attorneys for Appellee.
    Before SMITH, P.J., WALLER and CARLSON, JJ.
   WALLER, Justice,

for the Court:

¶ 1. Cheryl Ladner appeals from a judgment of the Pearl River County Chancery Court which awarded her emancipated son $4,291 in unpaid child support against Lad-ner’s ex-husband, Woodrow Logan. Logan cross-appeals from the chancellor’s award of $2,000 in attorneys’ fees to Cheryl. We affirm the chancellor in all respects except that we reverse and remand for entry of a new judgment for a recalculated award to the son based on the correct monthly amount and for an award of post-judgment interest thereon.

FACTS AND PROCEDURAL HISTORY

¶ 2. Cheryl Ladner and Woodrow Logan were divorced by decree of the Pearl River County Chancery Court on September 16, 1983. Woodrow was ordered to pay $475 per month in child support for the couple’s four children, namely, David Logan, born on April 17, 1970, Kevin Logan, born on September 20, 1972, Vincent Logan, born on April 10, 1974, and Darren Logan, born on October 25, 1976. On December 17, 1985, Woodrow was found in contempt of the divorce decree with the court finding a total arrearage of $3,686. On April 13, 1996, the Mississippi Department of Human Services filed'a petition for citation of contempt on behalf of Cheryl seeking $31,596 in arrearages as of February 28, 1995. The affidavit of accounting submitted with DHS’s petition indicated that Woodrow had paid a total of $28,818 and was in arrears $31,596.

¶ 3. On August 29, 1994, the chancellor signed a child support enforcement transmittal pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA) for enforcement in Jefferson Parish, Louisiana. Thereafter, on September 11, 1996, Woodrow wrote a letter to the clerk of court of Pearl River County which was filed on September 16 stating that a judgment on his support obligation had been entered in the Jefferson Parish Juvenile Court in Louisiana. The Louisiana judgment was dated October 31, 1994, and stated in pertinent part:

BACK $28, 607.00 TO IV-D AS OF 10/31/1994,
TESTIMONY TAKEN OF MS MED-ROS, DEFENDANT, & MS LOGAN, MOTION TO STAY INCOME ASSIGNMENT DENIED.
AGREEMENT REACHED.
WAGE ASSIGNMENT ORDERED IN THE AMOUNT OF $100.00 PER MONTH ON ARREARS ONLY AS SET THIS DATE AT $13,075.00, EFF. 12/1/94.
THIS IS AN ARREARS ONLY CASE IN THE STATE OF LOUISIANA.

¶ 4. An income assignment order was also entered on November 29, 1994, ordering Woodrow’s employer to withhold $100 per month to satisfy the $13,075 arrearage.

¶ 5. After numerous continuances, the significance of which is discussed later, the chancery court entered a judgment for citation of contempt signed December 19, 1996, and filed January 24, 1997, finding Woodrow in arrears $39,696 as of January 8, 1997. An order of withholding was entered the same day. In response, Woodrow filed a petition to correct judgment on July 17,1997, requesting that the chancery court give full faith and credit to the October 31, 1994, Louisiana judgment of $13,075 arrearage. Woodrow also requested that the December 19, 1996, judgment be corrected to reflect an arrearage of $13,075.

¶ 6. An agreed judgment was signed on May 14, 1998, and filed on May 26, 1998, signed by counsel for Cheryl and former counsel for Woodrow, stating that Woodrow was $39,696 in arrears. With new counsel, Woodrow filed on December 28, 1998, a motion for relief from the May 14, 1998, agreed judgment on the bases that he was not aware of the agreed judgment nor did he authorize his former counsel to execute the judgment.

¶ 7. The chancery court stayed execution of the previous judgments on March 30, 1999, reserved ruling on Woodrow’s M.R.C.P. 62(b) motion, and ordered briefing on the efficacy of the Louisiana judgment and validity of the January 24, 1997, judgment. After briefing, the court found the December 19, 1996, judgment (which had been entered in response to DHS’s April 3, 1996, complaint) and resulting agreed judgment void for improper notice and lack of opportunity to defend:

The underlying complaint by DHS leading to that judgment was filed April 3, 1996. Summons was issued for Woodrow on that date, directed to Woodrow at an address in Metairie, Louisiana, and apparently placed in the hand of the Sheriff of Jefferson Parish, Louisiana, and indicates on its Return portion “not found, no such address”. An Alias Summons was issued August 22, 1996, returnable to September 19, 1996, for Woodrow at an address in Ken-ner, Louisiana, and again apparently placed in the hand of the Sheriff of Jefferson Parish, Louisiana, which reflects on its Return portion that personal service was had on Woodrow on September 7, 1996; however, the Return is deficient in that it wholly fails to conform to the required form and detail for service by a Process Server. Thereafter, a copy of that deficient Return was filed on November 22, 1996 purporting to reflect on a Proof Of Service — Summons form the aforesaid personal service had on September 7, 1996; however, this effort is fatally deficient in that it wholly fails to provide the critical information required for the form itself. Nevertheless, and despite the deficiencies noted and lack of legal efficacy of the purported service of process, it is apparent that Woodrow did receive notice of the pending action, for on September 16,1996 he filed with the Clerk a letter in response to the pending complaint, thereby putting himself in court in the matter, a fact which brings into play the all-important consideration of due process as it pertains to the subsequent actions, next addressed.
Those subsequent actions of great significance are as follows: DHS prepared a continuance order which was dated September 16, 1996 but which was filed October 1, 1996, continuing the matter until October 17,1996. Thereafter DHS prepared another continuance order dated October 17, 1996 but which was filed October 30, 1996 continuing the matter until December 19, 1996. Though Woodrow had made an appearance in the matter by his filing of a letter and attached documentary evidence, there is a total lack of any showing or contention that he was ever contacted or noticed as to any aspect or further proceedings in this matter, and was totally and effectively deprived of knowledge about, or opportunity to appear at, the December 19,1996 hearing which produced the purported judgment against him fixing his ar-rearage at the sum of $39,696 incorporated therein. Woodrow was clearly denied his constitutional due process rights and opportunity to defend, and the judgment issued is therefore void.

(italics in original & boldface added). An order was entered July 28, 1999, setting aside and cancelling the December 19, 1996, judgment and May 14, 1998, agreed judgment. The court also afforded Cheryl 30 days to amend her complaint, and Woodrow 30 days to answer.

¶ 8. Cheryl filed her complaint for citation of contempt and alternatively an amended complaint for contempt of former decree on October 1,1999, apparently over one month late. The complaint sought, inter alia, $34,820.50 in arrearages plus interest for a total of $73,060.53. Woodrow’s answer was filed on November 4, 1999, and asserted the affirmative defense of statute of limitations since the date of the children’s emancipation could possibly preclude recovery.

¶ 9. Woodrow propounded interrogatories to Cheryl, one of which requested a list of the children, their addresses, and telephone numbers. Cheryl replied to the interrogatory “c/o Cheryl Ladner.” Woodrow filed a motion to compel, requesting an order that Cheryl supply the current addresses and telephone numbers of the children so that notices of depositions could be issued. Cheryl then filed a motion to quash the deposition subpoenas, arguing that the children’s testimony would be immaterial and irrelevant.

¶ 10. Woodrow did not raise the untimeliness of Cheryl’s complaint until he filed a motion to dismiss on May 18, 2000, in which he also attempted to raise a defense of failure to state a cause of action. Cheryl correctly responded that Woodrow’s failure to assert his timeliness defense in his answer constituted a waiver of the defense.

¶ 11. Only Cheryl appeared for her deposition on April 24, 2000, and she indicated the children had no intentions of being deposed. Woodrow responded with a motion for discovery sanctions, but the chancery court held that the children were emancipated upon graduation from high school. The court found that David became emancipated in June 1988, Kevin became emancipated in June 1990, Vincent became emancipated in May 1993, and Darren became emancipated in May 1995.

¶ 12. On March 16, 2001, Woodrow moved the court to order Cheryl to amend her complaint to add the four children as parties given that, according to Woodrow, they are necessary parties and the true plaintiffs in the action. The chancery court agreed and ordered Cheryl to join the four children as parties within 40 days. On June 6, 2001, Cheryl submitted four documents captioned “Waiver, Joinder and Assignment” whereby each of the children purported to “transfer, assign, convey and set over to my mother, Cheryl Ladner, all of my interest to any claim or cause of action that I have or may have against my father, Woodrow Logan, for his failure to pay child support....” These assignments were prepared by Cheryl’s counsel. Pursuant to these documents, the children joined the action, waived issuance of service, and assigned their rights to their mother.

¶ 13. Notwithstanding these waivers, the court thereafter ordered that the children be joined as parties and be made available for depositions and other discovery. Darren, who is the youngest child and was 25 years old at the time, was the only child to appear for a deposition at which he stated his older brothers informed him they had no intentions of testifying in the case. The parties also stipulated that Darren’s deposition be admitted into evidence.

¶ 14. The chancellor’s memorandum opinion and judgment noted the dates of birth, dates of emancipation, and dates of majority of the four adult children. The total support obligation was found to be $63,000 by applying a monthly rate of $450 from October 1983 to May 1995, the month Darren was emancipated. Actually, the total obligation should be $66,500 because the monthly rate was $475. The judgment noted that Woodrow had already paid a total of $45,837. Thus, the chancellor computed maximum total arrearage at $17,163 and not the $21,138 as asserted by Cheryl in the pre-trial order or $31,596 as asserted by DHS in its complaint or $34,820.50 as asserted by Cheryl in her amended complaint. The chancellor also correctly noted that DHS’s complaint and Cheryl’s amended complaint purported to be in their own right only, meaning that no averment was made that they were acting on the children’s behalf.

¶ 15. The chancellor found that awarding the entire amount of the arrearage to Darren, who incidentally wanted no part in this action, would amount to “an outrageously unjust enrichment.” In awarding Darren $4,291, he concluded,

Because of the peculiar circumstances which permeate this entire action, it is the Court’s considered opinion that Darren, under the most generous position afforded him by equitable principles, should not be permitted to recover for himself and in his own right more than 25% of the accrued and unpaid arrear-age of child support through the month of May 1995, the date of his emancipation and consequent termination of child support due on his account.

(emphasis added). Aggrieved that she was not awarded the entire amount of the ar-rearage, Cheryl appeals and raises the following assignments of error:

I. WHETHER THE CHANCELLOR ERRED IN SETTING ASIDE AND CANCELLING THE $39,696 JUDGMENTS DATED DECEMBER 19, 1996, AND MAY 14, 1998.
II. WHETHER THE CHANCELLOR ERRED IN HIS MAY 3, 2001, INTERIM ORDER WHEREIN HE DEEMED THE FOUR ADULT CHILDREN OF THE PARTIES WERE NECESSARY PARTIES TO THE ACTION.
III. WHETHER THE CHANCELLOR ERRED IN HIS DETERMINATION OF THE TOTAL AMOUNT OF ARREARAGE.
IV. WHETHER THE CHANCELLOR ERRED IN HIS FINDING THAT CHERYL LADNER HAD NO RIGHT OR AUTHORITY TO SEEK DELINQUENT CHILD SUPPORT ON BEHALF OF HER THREE OLDEST CHILDREN SINCE THEY WERE EMANCIPATED AT THE TIME THE PETITION FOR CITATION OF CONTEMPT WAS FILED.
V. WHETHER THE CHANCELLOR ERRED IN HIS APPLICATION OF THE STATUTE OF LIMITATIONS AS IT APPLIED TO THE ADULT CHILDREN.
VI. WHETHER THE CHANCEL-
LOR ERRED IN FAILING TO RECOGNIZE AND APPLY THE “WAIVER, JOINDER AND ASSIGNMENT” DOCUMENTS
SIGNED BY THE CHILDREN.
VII. WHETHER THE CHANCELLOR ERRED IN REDUCING THE AMOUNT OF DELINQUENT CHILD SUPPORT TO 25% OF THE OUTSTANDING ARREARAGE AMOUNT.
VIII. WHETHER THE CHANCELLOR ERRED IN FAILING TO APPLY INTEREST TO THE AMOUNT OWED.

¶ 16. Woodrow cross-appeals and asserts the following assignment of error:

I. WHETHER THE CHANCELLOR ERRED BY AWARDING CHERYL ATTORNEYS’ FEES.

STANDARD OF REVIEW

¶ 17. We will not disturb a chancellor’s findings of fact unless those findings are manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Pilgrim Rest Missionary Baptist Church v. Wallace, 835 So.2d 67, 71 (Miss.2003); Jones v. Howell, 827 So.2d 691, 696 (Miss.2002); Miller v. Pannell, 815 So.2d 1117, 1119 (Miss.2002). However, questions of law are reviewed de novo. In re Williamson, 838 So.2d 226, 233 (Miss.2002); Little v. Miss. Dep’t of Human Servs., 835 So.2d 9, 11 (Miss.2002); Morgan v. West, 812 So.2d 987, 990 (Miss.2002).

DISCUSSION

I. WHETHER THE CHANCELLOR ERRED IN SETTING ASIDE AND CANCELLING THE $39,696 JUDGMENTS DATED DECEMBER 19, 1996, AND MAY 14,1998.

¶ 18. Cheryl first argues that the chancellor erred in setting aside and cancelling the December 19, 1996, and May 14, 1998, judgments. Specifically, she argues Woodrow’s M.R.C.P. 60(b) motion for relief was untimely, that Woodrow was not due any notice of the continuances entered, and that any notice deficiencies were cured when Woodrow’s attorney signed off on the May 14, 1998, agreed judgment. We will address each of these sub-issues in turn.

Timeliness of Woodrow’s Rule 60(b) Motion for Relief

¶ 19. Woodrow filed his motion for relief pursuant to M.R.C.P. 60(b)(4) on December 28, 1998, approximately seven months after the agreed judgment was entered. The extent of Cheryl’s authority is a partial quote of Rule 60(b). She presents no argument whatsoever that the delay was unreasonable. A motion for relief pursuant to Rule 60(b) alleging that a judgment is void is not subject to the six-month restriction if the delay was reasonable. There being no evidence of unreasonableness, we find that Woodrow’s Rule 60(b)(4) motion for relief was timely.

Whether Woodrow Was Entitled to Notice of the Continuances

¶ 20. Cheryl cites no relevant authority supporting her proposition that Woodrow was not due any notice of the continuances. We hold that the chancellor was correct in finding the judgment void based on improper service of the summons. Though Woodrow apparently had some type of notice, since he did mail the clerk a letter responding to the complaint, the fact remains that the original service was deficient. Cheryl refers to M.R.C.P. 81(d)(5) which provides, “If such action or matter is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent.” However, Cheryl never addresses the question of the entitlement or lack thereof of a defendant to notice of continuances when the process served for the original complaint was defective.

Deficiencies Cured When Attorney Signed Off on Agreed Judgment

¶ 21. The extent of Cheryl’s argument and citation of authority is that an attorney has implied or apparent authority to consent to a decree against his client if he acts in good faith and without collusion. She again provides no argument or authority providing that an attorney’s signing off on an agreed judgment entered in accordance with a judgment later voided is somehow rehabilitated. We are unpersuaded by Cheryl’s argument on this sub-issue.

II. WHETHER THE CHANCELLOR ERRED IN HIS MAY 3, 2001, INTERIM ORDER WHEREIN HE DEEMED THE FOUR ADULT CHILDREN OF THE PARTIES WERE NECESSARY PARTIES TO THE ACTION.

¶ 22. In this ease, Cheryl is attempting to collect unpaid child support years after her children were emancipated. On the issue of who was the proper party to sue Woodrow, the defaulting parent, we have held either the custodial parent or the child can bring the action:

That the child has been emancipated does not pretermit recovery of vested but unpaid child support. Either the child or the former custodial parent may bring an action against the defaulting parent, although the latter receives any recovery in his/her fiduciary capacity subject to all of the duties and strictures thereof. If by reason of the supporting parent’s default, the custodial parent is forced to dip into her own resources beyond what would otherwise be expected of her, she may recover and retain amounts so proved, subject to equitable adjustment should the child’s prior needs so suggest.

Varner v. Varner, 588 So.2d 428, 433 (Miss.1991). See also Vice v. Dep’t of Human Servs., 702 So.2d 397, 401-02 (Miss.1997). According to Varner and its progeny, the custodial parent can sue the defaulting parent for unpaid support notwithstanding the child’s emancipation subject to her fiduciary duties to the child/children. The custodial parent would be entitled to reimbursement for expending her own resources if she proves such. Cheryl presented no such proof. Rather, she has doggedly sought the unpaid child support on her own behalf. This motivation is evidenced by her attorney’s preparing assignments whereby the children joined the action, waived process, and assigned all of their rights to her.

¶ 23. Cheryl notes that the children have the opportunity to assert a claim against her for the money that they feel is rightfully theirs. The only child to be deposed, Darren, indicated that he had no claim against his father. Cheryl undoubtedly has standing to pursue the unpaid support, but as we held in Wilson v. Wilson, 464 So.2d 496, 499 (Miss.1985), “The custodial parent is merely the conduit through which the support money passes for the benefit of the children.” It is not clear whether Darren knows he has a right to the money. Because of a lack of evidence to the contrary, we find it more believable that Cheryl is trying to collect the money for herself and that she has failed to establish that the chancellor was manifestly in error in ordering the children joined as necessary parties.

III. WHETHER THE CHANCELLOR ERRED IN HIS DETERMINATION OF THE TOTAL AMOUNT OF ARREARAGE.

¶ 24. Cheryl is correct that the chancellor erred in determining the amount of the arrearage. In computing the overall obligation, the chancellor computed the amount of the arrearage by multiplying the number of months for which Woodrow was obligated to pay (140) by $450 to arrive at a total obligation of $63,000. Actually, the original decree imposed a monthly obligation of $475. This would yield a total obligation of $66,500. For this reason, we reverse the chancellor’s computation and, for reasons expressed later as well, remand for recomputation.

IV. WHETHER THE CHANCELLOR ERRED IN HIS FINDING THAT CHERYL LADNER HAD NO RIGHT OR AUTHORITY TO SEEK DELINQUENT CHILD SUPPORT ON BEHALF OF HER THREE OLDEST CHILDREN SINCE THEY WERE EMANCIPATED AT THE TIME THE PETITION FOR CITATION OF CONTEMPT WAS FILED.

¶ 25. Cheryl is correct that she has standing to seek the delinquent support notwithstanding the children’s emancipated status. This assignment of error is addressed in Issue II where we address the status of the children as necessary parties.

V. WHETHER THE CHANCELLOR ERRED IN HIS APPLICATION OF THE STATUTE OF LIMITATIONS AS IT APPLIED TO THE ADULT CHILDREN.

¶ 26. Cheryl argues that the statute of limitations is not applicable in this case, specifically noting that “since the youngest child of four children became emancipated at the time of high school graduation, May of 1995, the statute cannot commence to run against the Plaintiff or any of the children until May of 2002.” Miss.Code Ann. § 15-1-43 (Rev.1995) provides for a seven-year statute of limitations for all actions founded on any judgment rendered by any court of record in this state, but Miss.Code Ann. § 15-1-59 (Rev.1995) tolls that period until removal of a disability. The chancellor found that David was emancipated • in June of 1988, Kevin in June of 1990, Vincent in May of 1993, and Darren in May of 1995.

¶ 27. Cheryl states that her October 1, 1999, amended complaint related back to the April 3, 1996, DHS petition pursuant to M.R.C.P. 15(c). The chancellor voided and vacated the judgment entered in accordance with the DHS complaint on improper notice grounds. No argument is presented or authority cited to support the proposition that the October 1, 1999, complaint could relate back to the voided April 3, 1996, action, nor is authority cited supporting the proposition that the statute of limitations does not begin to run until the youngest child is emancipated. We find persuasive the Court of Appeals’ decision in Brown v. Brown, 822 So.2d 1119 (Miss.Ct.App.2002), where the court applied the statute of limitations to one emancipated child and accordingly reduced the obligation payable in favor of the child whose claim was not barred. This assignment of error is without merit.

VI.WHETHER THE CHANCELLOR ERRED IN FAILING TO RECOGNIZE AND APPLY THE “WAIVER, JOINDER AND ASSIGNMENT” DOCUMENTS SIGNED BY THE CHILDREN.

¶ 28. Cheryl’s sole authority in support of her assignment of error that the chancellor erred in failing to recognize the documents by which the children purport to simultaneously join the action, waive all process, and assign all of their rights to their unpaid child support to their mother is Miss.Code Ann. § 11-7-3 (Supp.2003). Miss.Code Ann. § 11-7-3 does allow for the assignment of choses in action; however, child support benefits belong to the child with the custodial parent serving a fiduciary capacity. Trunzler v. Trunzler, 431 So.2d 1115, 1116 (Miss.1983). This issue is without merit.

VII. WHETHER THE CHANCELLOR ERRED IN REDUCING THE AMOUNT OF DELINQUENT CHILD SUPPORT TO 25% OF THE OUTSTANDING ARREARAGE AMOUNT.

¶ 29. Since we find that the statute of limitations had run as to the three oldest children, we necessarily agree with the chancellor’s reduction in the amount due to 25% of the outstanding arrearage. Cheryl is correct in citing Varner for the propositions that the emancipation of one child does not reduce the amount of paying spouse’s payment and that child support vests as it accrues. 588 So.2d at 433. However, she couches her argument in terms of a credit to Woodrow for the unpaid support but never addresses the fact that the claims of the three oldest children were barred by the statute of limitations as the chancellor found. This issue is without merit.

VIII. WHETHER THE CHANCELLOR ERRED IN FAILING TO APPLY INTEREST TO THE AMOUNT OWED.

¶ 30. The chancellor should have awarded interest on the amount owed. As we noted in Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992), “The delinquent parent is liable also for the interest which has accrued on each unpaid support payment from the time it was due.” See also Brand v. Brand, 482 So.2d 236 (Miss.1986) (holding that chancellor erred in failing to award interest on arrearages and holding that interest accrues on each payment at the legal rate from the date due). We reverse the judgment and remand for an award of interest pursuant to Miss.Code Ann. § 75-17-7.

CROSS-APPEAL

I. WHETHER THE CHANCELLOR ERRED BY AWARDING CHERYL ATTORNEYS’ FEES.

¶ 31. Woodrow cross-appeals contesting the chancellor’s award of $2,000 in attorneys’ fees to Cheryl. The standard of review of a trial court’s decision to award attorneys’ fees is abuse of discretion. Miss. Dep’t of Wildlife, Fisheries & Parks v. Miss. Wildlife Enforcement Officers’ Ass’n, 740 So.2d 925, 937 (Miss.1999) (citing Bank of Miss. v. Southern Mem’l Park, Inc., 677 So.2d 186, 191 (Miss.1996)).

¶ 32. A chancellor can award attorneys’ fees to a spouse who succeeds on his or her petition for contempt of the other’s child support obligation. Lahmann v. Hallmon, 122, So.2d 614, 623 (Miss.1998). We find that the chancellor did not abuse his discretion in awarding attorneys’ fees to Cheryl. Woodrow was delinquent in his child support obligation, and a suit had to be filed to collect it. Woodrow makes the point that Cheryl technically did not prevail because the chancellor awarded a portion of the arrear-age to Darren, not Cheryl. However, it remains that a custodial parent can enforce a child support obligation on the child’s behalf. This assignment of error is without merit.

MOTION TO STRIKE

¶ 33. In his brief, Woodrow included a motion to strike Issues VII and VIII on the basis that Darren was awarded a money judgment and never appealed; therefore, we would not have jurisdiction to review the money judgment awarded to him. Simply put, Woodrow complains that Cheryl has no standing to pursue those issues which can only be raised by Darren. Since we affirm the chancellor’s substantive findings, we deny Woodrow’s motion to strike.

CONCLUSION

¶ 34. We find no error by the chancellor save his erroneous use of $450 instead of $475 in computing Woodrow’s total support obligation and his failure to award interest. We affirm the findings of the Pearl River County Chancery Court on all issues but reverse and remand for a recalculation of the award to Darren based on $475 per month and instruct that interest be awarded from the date each payment was due pursuant to Miss.Code Ann. § 75-17-7 and Brand v. Brand.

¶ 35. ON DIRECT APPEAL: AFFIRMED IN PART; REVERSED AND REMANDED IN PART. ON CROSS-APPEAL: AFFIRMED.

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

      . The chancellor’s memorandum opinion and judgment erroneously states that the amount of monthly child support was $450. The record also intermittently refers to the obligation as $450 per month; however, the original decree stated $475, and no modification was ever entered.

      . Cheryl contends that she never attended the Louisiana proceeding.