author: b COOKS, Judge.

text:
    Ray CROCHET, et al. v. CISCO SYSTEMS, INC., and Cisco Systems Capital Corporation.
    No. 02-1357.
    Court of Appeal of Louisiana, Third Circuit.
    May 28, 2003.

      Charlie R. Moor, Steve C. Thompson, J.E. Cullens, Jr., S. Layne Lee, Moore, Walters, Thompson, Hoover, Thomas, Pa-pillion & Cullens, Baton Rouge, LA, for Plaintiffs/Appellants, Ray Crochet, et al.
    R. Patrick Vance, Edward H. Bergin, Judith V. Windhorst, Genevieve Hartel, Jones, Walker, Waechter, Poitevent, Car-rere & Denegre, L.L.P., New Orleans, LA, for Defendants/Appellees, Cisco Systems, Inc., and Cisco Systems Capital Corporation.
    Court composed of NED E. DOUCET, C.J., SYLVIA R. COOKS and JOHN D. SAUNDERS, Judges.
   b COOKS, Judge.

The plaintiffs, residents of Calcasieu Parish who were shareholders of American Metrocomm Corporation, appeal the judgment of the trial court sustaining the defendants’ exceptions of no right of action and no cause of action. For the following reasons, we affirm the trial court’s judgment.

FACTS

In April 1998, several Louisiana companies were merged into a Delaware corporation which was renamed American Me-trocomm Corporation (hereafter AMC). AMC provided local telephone service and internet connection services. The plaintiffs in this matter were stockholders in AMC.

AMC declared bankruptcy in August 2000, and was unable to reorganize. The plaintiffs filed suit against Cisco Systems and Cisco Systems Capital Corporation (hereafter Cisco defendants), contending the Cisco defendants were largely responsible for “causing] the failure of an impending merger transaction” between AMC and ILD Telecommunications, Inc., “which would have generated direct personal profits for Plaintiffs.” Specifically, plaintiffs alleged the profits from the non-consummated merger would have inured directly to AMC’s shareholders, not the corporation. They allege further that the merger was only days away from completion when the Cisco defendants intervened and caused its failure with an “egregious series of tortious acts and omissions,” including providing defective and/or inappropriate hardware, providing cash-starved companies (such as AMC) with large working capital loans and equipment loans and then pressuring these companies to buy “unneeded, unworking, and sometimes even incomplete products, all of which would be paid for by Cisco Capital and then billed to the customer, with ^interest.”

Prior to the suit filed by plaintiffs, the Cisco defendants filed suit against AMC on April 26, 2000 stemming from AMC’s refusal to pay Cisco Capital’s loan bill. The plaintiffs contended this suit was filed as a “preemptive strike” because the Cisco defendants “knew that the lid was about to come off regarding their business practices.” Days after Cisco’s lawsuit was filed against AMC, the ILD-AMC merger collapsed.

On April 27, 2001, seventy-one AMC shareholders brought the suit below, in their individual capacities, against the Cisco defendants for causing the failure of the AMC-ILD merger. Suit was filed in the Fourteenth Judicial District Court in Cal-casieu Parish. Twelve of the seventy-one plaintiffs are domiciled in Calcasieu Parish. The Cisco defendants filed exceptions of improper venue and improper cumulation against the non-Calcasieu plaintiffs and exceptions of no right of action and no cause of action against all plaintiffs. The Cisco defendants also filed an exception of prescription/peremption as to the plaintiffs’ claims under the Louisiana Unfair Trade Practices and Consumer Protection Act (LUTPCPA), La.R.S. 51:1401, et seq.

The trial court heard arguments on all the filed exceptions, and rendered the following judgment:

The exceptions of improper venue and improper cumulation were granted with respect to the non-Calcasieu Parish plaintiffs, and dismissed their cases with prejudice;
As to the Calcasieu plaintiffs, the exceptions of no cause of action and no right of action were granted;
As to the Calcasieu plaintiffs, the exception of prescription/peremption was granted as it related to the LUTPCPA.

|aThe trial court specifically found the plaintiffs’ alleged damage from the failed merger did not satisfy the “special injury” requirement for individual shareholder actions.

The Calcasieu plaintiffs appeal the portion of the trial court’s judgment dismissing their claims pursuant to the exceptions of no cause of action and no right of action. No other aspect of the judgment was appealed.

ANALYSIS

The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether the plaintiff is afforded a remedy in law based on the facts alleged in the pleading. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission, 94-2015 (La.11/30/94), 646 So.2d 885; Guidroz v. State Farm Mut. Auto. Ins. Co., 97-200 (La.App. 3 Cir. 6/25/97), 698 So.2d 967, rev’d on other grounds, 97-2653 (La.1/30/98), 705 So.2d 738. In evaluating an exception of no cause of action, the court must accept well-pleaded allegations of fact as true, and the issue at the hearing on the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Pittman v. Beebe, 95-1342 (La.App. 3 Cir. 3/6/96), 670 So.2d 761, writ denied, 96-882 (La.5/10/96), 672 So.2d 931.

The exception of no right of action addresses itself to whether the particular plaintiff falls, as a matter of law, within the general class of those to whom the law grants the cause of action being asserted in the suit. Louisiana Paddlewheels, 646 So.2d 885; Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3 Cir.1967). This objection is a- threshold device to terminate a suit brought by one who has no interest in judicially enforcing the right asserted. Roger Boc, L.L.C. v. Weigel, 99-570 U (La.App. 3 Cir. 11/3/99), 744 So.2d 731; Meche v. Arceneaux, 460 So.2d 89 (La.App. 3 Cir.1984).

Plaintiffs contend they have both a right of action and cause of action to bring claims against the Cisco defendants for their direct losses arising out of the failed merger. They argue they have direct and independent losses arising from the defendants’ acts and omissions that are not derivative of any corporate loss to AMC. Thus, plaintiffs contend they are attempting to pursue a direct rather than a derivative claim.

Generally, a shareholder may only sue to recover losses to a corporation secondarily through the shareholder’s derivative suit. Pittman, 670 So.2d 761; Palowsky v. Premier Bancorp, Inc., 597 So.2d 543 (La.App. 1 Cir.1992). Shareholders do not have a personal right to sue to recover for acts committed against, or causing damage to the corporation. Joe Conte Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 95-1630 (La.App. 4 Cir. 2/12/97), 689 So.2d 650, writ denied, 97-659 (La.4/25/97), 692 So.2d 1090; Bolanos v. Madary, 609 So.2d 972 (La.App. 4 Cir. 1992), writ denied, 615 So.2d 339 (La.1993).

Plaintiffs argue the law provides a direct cause of action to them in this matter. Because AMC was a Delaware corporation based in Louisiana, they have discussed both states’ law to determine whether this is a direct or derivative claim. Plaintiffs point out “numerous Delaware cases hold that if a shareholder attacks the fairness of a merger transaction or claims that fraud occurred in connection with a merger transaction, that claim is a direct claim of the shareholder, not a derivative claim on behalf of the corporation. See, e.g., Parnes v. Bally Entertainment Corporation, 722 A.2d 1243 (Del.1999); Nagy v. Bistricer, 770 A.2d 43 (Del.Ch.2000); Cede & Co. v. Technicolor, Inc., 542 A.2d 1182 (Del.1988).” However, the court in Pames specifically stated:

“[A] claim alleging corporate mismanagement, and a resulting drop in the value of a company’s stock is a classic derivative claim; the alleged wrong harms the corporation directly and all of its shareholders indirectly. The fact that such a claim is asserted in the context of a merger does not change its fundamental nature.”

Id., 722 A.2d at 1245.

Similarly, in Louisiana, the jurisprudence requires an injury that is “special” or unique to the shareholder. “The American Law Institute has suggested this test for distinguishing direct from derivative claims: if a shareholder can recover in a suit only by showing that the corporation was injured, then the suit is derivative in nature, even if the corporate injury does cause indirect harm to the shareholder, while if a recovery can be granted without a proof of a corporate loss, then the suit is considered to be direct.” Morris & Holmes, 8 La.Civ.Law Treatise-Business Organizations § 34.03 (1999). “The general rule is that the right to an action against officers and directors for mismanagement or fraud that causes loss to the corporation is an asset of the corporation and may be asserted secondarily by a shareholder through a shareholder’s derivative suit.” Landry v. Thibaut, 523 So.2d 1370, 1376 (La.App. 5 Cir.), writ denied, 526 So.2d 809 (La.1988).

Plaintiffs argued that if the merger had gone through AMC would have ceased to exist. Therefore, it is the shareholders’ cause and right of action. However, this argument ignores the plain fact that the merger did not go through. AMC still exists and any claim should properly be asserted in a shareholder’s derivative suit.

The trial court concluded the plaintiffs were unable to show any special or direct injury independent of the harm caused to AMC to allow for an individual | ^shareholder action. The trial court gave the following reasons:

I was hoping to be convinced that perhaps the plaintiffs had a direct injury that could — a direct claim that they could assert; but unfortunately for the plaintiffs, I remain unconvinced that stock-for-stock merger is a magic talisman which distinguishes this factual situation from any of the others that have been discussed in the case law.

The Pames case, cited above, specifically states there is nothing exceptional about a merger that removes it from the normal rules.

We note the plaintiffs do not allege they had any direct dealings with the Cisco defendants or that there was any contractual relationship between them. Further, the plaintiffs do not assert that the Cisco defendants directly misrepresented anything to them. The simple fact that plaintiffs were shareholders in AMC did not make them parties to the contractual relationship between AMC and the Cisco defendants. Sample v. Louisiana Oil Refining Corp., 162 La. 941, 111 So. 336 (1927); Robertson v. Weinmann, 00-799 (La.App. 4 Cir. 3/19/01), 782 So.2d 38.

Following a thorough review of the record and jurisprudence, we find the trial court correctly sustained the exceptions of no right of action and no cause of action against the plaintiffs’ claim to recover in their individual capacity. The debts and obligations due to a corporation are not due to the individuals who hold its stock. Therefore, if a corporation has sustained a loss then only that corporation can sue to recover it.

DECREE

For the foregoing reasons, the judgment appealed from is affirmed. All costs |7of this appeal are assessed to plaintiffs-appellants.

AFFIRMED.

      . There were allegations that two of the out of state plaintiffs were directly solicited by Cisco employees. However, since the out of state plaintiffs were dismissed from the lawsuit based on the venue and cumulation exceptions, these allegations are irrelevant.


source: Caselaw Access Project

author: SMITH, P. J„

license: Public Domain

text:
    MISSISSIPPI DEPARTMENT OF TRANSPORTATION v. Kenneth Michael CARGILE.
    No. 2002-CA-00202-SCT.
    Supreme Court of Mississippi.
    May 29, 2003.

      James N. Bullock, Jackson, attorney for appellant.
    Bobby L. Shoemaker, Bay Springs, attorney for appellee.
   SMITH, P. J„

for the Court.

¶ 1. In this Tort Claims Act case arising from a one-car accident on a wet state-maintained highway, the Mississippi Department of Transportation appeals to this Court from a judgment of $38,151 in favor of Kenneth Michael Cargile awarded by the Circuit Court of the Second Judicial District of Jasper County. Finding no reversible error, we affirm.

FACTS

¶ 2. On the night of February 10, 1998, Kenneth Cargile was traveling on Mississippi Highway 528 in a storm when his truck left the road and crashed. He claims that he lost control of his truck when it hydroplaned after running through a large pool of water which had collected on the road.

¶ 3. Cargile sued the State of Mississippi and the Mississippi Department of Transportation (“MDOT”) under the Mississippi Tort Claims Act. He asserts that the State of Mississippi and MDOT negligently faded to inspect and maintain Highway 528 where the accident took place. Because of that alleged negligence, Cargile argues that there was a dangerous condition at the site of the accident which was the sole proximate cause of his injuries and damages.

¶ 4. During a non-jury trial, the State of Mississippi was dismissed pursuant to a motion for a “directed verdict,” properly a M.R.C.P. 41(b) motion to dismiss but MDOT was not dismissed. The trial court entered its findings of act and conclusions of law apportioning 50% fault to Cargile and 50% fault to MDOT. Judgment was entered in favor of Cargile for $38,151. MDOT appeals that award.

DISCUSSION

I. DID THE EVIDENCE PROVE A FAULT WITH THE HIGHWAY?

II. DID THE TRIAL COURT ERR IN THE ADMISSION OF THE TESTIMONY OF RANDALL PITTMAN?

¶ 5. Because these issues are closely related, this Court will discuss them concurrently. MDOT contends that the evidence shows that the accident was not caused by its negligence. Instead, MDOT counters that the causes were Cargile’s failure to keep a proper lookout, his truck’s speed which was excessive for the conditions, and his failure to keep his vehicle under control. Further, MDOT advances that Car-gile never saw the water which he claims had accumulated. MDOT insists that the evidence fails to show any fault with the highway.

¶ 6. Additionally, MDOT argues that the trial court erred in admitting as evidence the testimony of Randall Pittman, who lives on Highway 528 near the scene of the accident. Pittman testified to his opinion on the cause of Cargile’s accident. The trial court also heard Pittman testify to his opinion of the causes of other accidents along the same stretch of highway which he either witnessed or heard about. MDOT states that his testimony is irrelevant and has no probative value because of remoteness. MDOT further asserts that since Pittman did not see the accidents along that same stretch of road about which he testified, he did not possess the requisite personal knowledge required for testimony by a lay witness. Additionally, MDOT contends that Pittman had no personal knowledge of the cause of any of those accidents including Cargile’s. MDOT further contends that Pittman did not see any such water at the time of the accident.

¶ 7. Further, MDOT argues that there was no evidence of water accumulation at or near the site of the accident or that any such accumulation caused the accident. MDOT asserts that State Trooper Keith Murphy, the state trooper on the scene of Cargile’s accident, did not see any accumulation of water. Finally, MDOT counters that its witnesses, Kenneth Thornton, the MDOT maintenance supervisor, John Lambert, who was Thornton’s supervisor, and Trooper Keith Murphy all regularly traveled that road for many months before the accident and had never seen any accumulation of water in that location. They all testified that had they noticed such an accumulation of water, they would have reported it. As evidenced by MDOT maintenance records, MDOT insists that its agents conducted regular, scheduled inspections and maintenance of the highway including grading the shoulders to prevent drainage onto the highway. Thornton testified that if he had seen a shoulder that was higher than the highway, he would have considered that condition an “emergency situation” requiring immediate attention. Thornton and Lambert both testified that there was “pitting” on the pavement but that defect did not warrant repair and would not have caused the accumulation of water alleged by Cargile.

¶ 8. Cargile states that there is no evidence that he failed to keep a proper look out. He asserts that there was no evidence that he was driving too fast. He claims to have been driving between 40 and 45 miles per hour which he says was a safe speed for the conditions. Cargile points to the lack of evidence that he failed to keep his vehicle under control.

¶ 9. Further, Cargile asserts that the trial court properly admitted testimony by Pittman as to the cause of the accident. He argues that Pittman was qualified to testify because he traveled the road several times a day and lived near the scene of the crash. Cargile cites Pittman’s testimony of his actions and attempts to notify MDOT of the condition of the road and the previous accidents. Since there were numerous accidents at this location during or immediately after rainfall and since Car-gile and Pittman both testified that it was raining at the time of the accident, Cargile argues that a reasonable inference can be drawn that accumulated rainwater was the cause of the accident.

¶ 10. In an action under the Tort Claims Act, the trial court sits as the finder of fact. When the court’s factual determinations are challenged on appeal, the reviewing court considers the entire record and has an obligation to affirm when the record contains substantial evidence in support of the trial court’s findings. Ezell v. Williams, 724 So.2d 396, 397 (Miss.1998); Miss. State Hosp. v. Wood, 823 So.2d 598, 601 (Miss.Ct.App.2002).

¶ 11. To prevail on a negligence claim, the plaintiff must establish by a preponderance of the evidence each of the elements of negligence: duty, breach, causation and injury. Leflore County v. Givens, 754 So.2d 1223, 1230 (Miss.2000) (citing Lovett v. Bradford, 676 So.2d 893, 896 (Miss.1996)). In Mississippi, a plaintiff may espouse one of three theories in support of a claim of negligence such as this: (1) that the defendant’s own negligence created a dangerous condition which caused plaintiffs injury; (2) that the defendant had actual knowledge of the danger she faced as an invitee or (3) that based upon the passage of time, the defendant should have known about the dangerous condition caused by another party and if defendant had acted reasonably, i.e., constructive knowledge of that condition should be imputed to that defendant. El-Mart Corp. v. Hardy ex rel. Hardy, 735 So.2d 975, 980 (Miss.1999) (citing Downs v. Chao, 656 So.2d 84, 86 (Miss.1995); Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss.1992)). The plaintiff bears the burden of presenting significant probative evidence that the defendant was not only negligent, but also that such negligence was the proximate cause of the dangerous condition that resulted in the plaintiffs injury. Id.

¶ 12. If proof of a causal connection is to be established by circumstantial evidence, it must be sufficient to make the plaintiffs asserted theory reasonably probable, not merely possible, and it is generally for the trier of fact to say whether circumstantial evidence meets this test. Id. (citing Miss. Valley Gas Co. v. Estate of Walker, 725 So.2d 139, 145 (Miss.1998)).

¶ 13. In Givens, the plaintiffs maintained that the injuries that they sustained were such that they could not remember the circumstances surrounding the accident nor the accident. Givens, 754 So.2d at 1230. The plaintiffs further argued that the county’s negligent failure to warn of the dangerous curve was the proximate cause of the accident. Id. at 1224. They alleged that the county designed and maintained that part of the road in a negligent manner and that the county knew of the dangerous condition. Id. As in the present case, the county failed to take steps to correct the condition despite the fact that it knew or should of known of the numerous accidents occurring at this curve. Id. at 1225.

¶ 14. This case is similar to Givens. After consideration of the entire record, this Court affirms the ruling of the trial court. The trial court, as finder of fact, had the opportunity to listen to the testimony of the witnesses and evaluate the negligence claim on a first-hand basis. The trial court chose to accept the testimony of Randall Pittman as to the numerous accidents occurring in the area of Cargile’s accident. MDOT either knew or should have known about other accidents occurring on the roads it had responsibility for maintaining. The trial court properly apportioned 50% fault to Cargile for his own negligence.

¶ 15. The next evidence to consider is the testimony of both Kenneth Cargile and Randall Pittman. Neither actually saw the accumulation of water on the night of the accident. Neither knew positively the cause of the accident. However, the trial court allowed the testimony as circumstantial evidence of the events on the night of the accident.

¶ 16. Admission or exclusion of evidence is within the discretion of the trial judge and will not be reversed absent an abuse of that discretion. Hardy, 785 So.2d at 983 (citing Broadhead v. Bonita Lakes Mall, Ltd. P’ship, 702 So.2d 92, 102 (Miss.1997)(quoting Sumrall v. Miss. Power Co. 693 So.2d 359, 365 (Miss.1997); Gen. Motors Corp. v. Jackson, 636 So.2d 310, 314 (Miss.1992); Walker v. Graham, 582 So.2d 431, 432 (Miss.1991)). For a case to be reversed on error in the admission or exclusion of evidence, the error must result in harm and prejudice or adversely affect a substantial right of a party. Id. at 983 (citing Hansen v. State, 592 So.2d 114 (Miss.1991)).

¶ 17. A trial judge’s findings of fact on conflicting evidence cannot be disturbed by this Court on appeal unless we can say with reasonable certainty that the findings were manifestly wrong and against the overwhelming weight of the evidence. Id. at 986-987(citing Richardson v. Riley, 355 So.2d 667, 668 (Miss.1978)). See also Puckett v. Stuckey, 633 So.2d 978, 982 (Miss.1993). The reviewing court must examine the entire record and must accept that “evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court’s findings of fact.” Id. at 987 (citing Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983); Culbreath v. Johnson, 427 So.2d 705, 707-08 (Miss.1983)). That there may be evidence to the contrary is irrelevant. Id.; Hansen v. State, 592 So.2d 114 (Miss.1991)).

¶ 18. In Hardy, the plaintiff filed an action for injuries received when he slipped and fell in paint on the floor at a K-Mart. Id. at 977. He argued that K-Mart was negligent, since there was a paint can on the floor in the same color as the paint cans on the display right above where he had fallen. Id. at 978. He could not independently recall how many levels of paint cans were stacked on the aisle display at the time of his fall. Id.

¶ 19. As this Court stated in Hardy:

In determining whether there was sufficient evidence on the question of defendant’s negligence for decision of that issue by a jury two well established principles must be kept in mind. One is that the negligence may be established by circumstantial evidence in the absence of testimony by eyewitnesses provided the circumstances are such as to take the case out of the realm of conjecture and place it within the field of legitimate inference. Id. at 981:

(citing Downs v. Choo, 656 So.2d 84, 90 (Miss.1995)(Sullivan, P.J., dissenting); Moore v. Winn-Dixie Stores, Inc. 252 Miss. 693, 703, 173 So.2d 603 (1965)(quoting Johnston v. Canton Flying Services, Inc., 209 Miss. 226, 46 So.2d 533 (1950)). The jury must be able to make a reasonable or reliable inference. 735 So.2d at 982. There must be sufficient additional evidence presented, other than the plaintiffs testimony, to lead the jury to conclude that the defendant caused the negligence. Id. at 983. In Winn-Dixie Supermarkets v. Hughes, 247 Miss. 575, 156 So.2d 734 (1963), we stated the factual question of causation is properly for the jury to make. Id. at 983.

¶ 20. In Johnson v. City of Pass Christian, 475 So.2d 428 (Miss.1985), a motorist lost control of her car, left the road and collided with an object causing her personal injury. Through the testimony of others, she claimed that a hole in the street caused her to lose control. Id. at 429. This Court upheld a JÑOV for the city of a $75,000 jury verdict where photographs in evidence did not show any hole. Id. She testified that she did not know what caused her to lose control of her car. Id. at 429. The street superintendent testified that the city had worked on the street one month prior to the accident and saw no defect. Id. at 430. He also testified that had he seen a hole, he would have repaired it. Id.

¶ 21. In similar cases where the plaintiff did not remember the scene of the accident, this Court held that when photographs contradict the plaintiffs tenuous theory of an accident, the plaintiffs theory will not support a jury verdict. Id. at 431. We stated:

[t]he Plaintiffs theory of the case ... is completely overwhelmed in our opinion by viewing the photographs taken at the scene and the testimony of the witness who arrived immediately after the accident and before the scene was subject to distortion by curious onlookers ... The plaintiffs theory at best admits of only a possibility, but it is highly improbable, and the mere possibility of the happening of an event has been held by this Court to be insufficient to sustain a verdict.

Id. at 431 (quoting Gunn v. Grice, 204 So.2d 177, 185 (Miss.1967)).

¶ 22. A layperson is qualified to give an opinion if he has firsthand knowledge which other laypeople, i.e., the jury, do not have. Hardy, 735 So.2d at 984 (citing Wells v. State, 604 So.2d 271, 278-79 (Miss.1992)). Speculative testimony is not admissible. Id. at 985. Nor is testimony about facts of which the witness has no personal knowledge. Id. at 985 (citing Jones v. State, 678 So.2d 707, 710 (Miss.1996)).

¶ 23. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. M.R.E. 602. Evidence to prove personal knowledge may, but need not consist of the testimony of the witness himself. Id. Rule 602 does not prevent, however, the witness from testifying about hearsay statements. M.R.E. 602 cmt. He need only show that he has personal knowledge regarding the making of the statements. Id. A witness can testify to facts within his knowledge, gained through any of his senses. Perkins v. State, 290 So.2d 597, 599 (Miss.1974). See also Dennis v. Prisock, 221 So.2d 706, 710 (Miss.1969).

¶ 24. Further, if the witness is not an expert, his testimony in the form of an opinion or inference is limited to the opinions of inferences which are (a) rationally based on the perception of the witness and (b) helpful to the clear understanding of the testimony or the determination of a facet in issue. M.R.E. 701. Rule 701 is a departure from the traditional rule; it favors the admission of lay opinions when two considerations are met. M.R.E. 701 cmt. The first consideration is the familiar requirement of firsthand knowledge or observation. Id. The second consideration is that the witness’s opinion must be helpful in resolving the issues. Id. Rule 701, thus, provides flexibility when a witness has difficulty in expressing himself in language which does not reflect an opinion. Id. Rule 701 is based on the recognition that there is often too thin a line between fact and opinion to determine which is which. Id.

¶25. Evidence of other similar accidents or injuries at or near the same place or by use of the same appliance suffered by persons other than the plaintiff and in other and different times, not too remote in time from the particular occurrence, is generally admissible to show the existence of a defective or dangerous condition or appliance and the dangerous character of the place or injury or of the machine or the appliance, and to show the defendant’s notice or knowledge thereof. S.H. Kress & Co. v. Markline, 117 Miss. 37, 77 So. 858 (1918). Concerning evidence of similar happenings, this Court has stated:

So far as the occurrence of other accidents at the same place is concerned, as matter of notice to the municipality responsible, there need be no hesitancy about accepting the rule of its admissibility. The objection to it as tending to introduce collateral issues, and thus lead away the jury’s attention, is absolutely illogical and is surely foundationless. * * * There is no necessity to quote from other authorities that in this class of cases the character of the place of the accident is one of the subjects of inquiry pertinent both as to notice and as to the condition of the locus in quo, and, if the defendant comes into court saying he is unprepared, the fault lies with himself. He of all others should know the character of the place, it is his charge and duty to know it, and the proposition that testimony with regard to it is part of the res gestae is nearer the law than that the evidence is collateral. The weight of authority is well in favor of the admission of such testimony to support the allegation of knowledge on the part of the defendant. There is a class of decisions in which it is held that, in suits for injuries caused by defective streets, it is relevant for the plaintiff to prove other similar accidents for the purpose of showing the dangerous character of the street. And from what we have said with regard to the relevancy of such testimony in proof of scienter, it will be gathered that we apply the same reasoning to its relevancy in showing the dangerous character of the street.

Markline, 77 So. at 862 (quoting Jones’ Blue Book of Evidence § 163).

¶ 26. The trial judge exercised the requisite degree of discretion in admitting the testimony of Cargile and Pittman which drew inferences about the accident and its causes even though neither saw an accumulation of water. This Court may reverse the trial judge only for abuse of discretion. Since there are no eyewitnesses, negligence may be established by circumstantial evidence such as the testimony of Pittman and Cargile. The judge as trier of fact heard the testimony of Pittman and Cargile and chose to believe and credit this testimony in reaching the decision to apportion fault of 50% to MDOT. The trial judge made findings of fact which we cannot say are wrong or incorrect. The inferences were reasonably drawn therefrom.

¶27. Pittman’s testimony concerning prior accidents at that location came from his observations of tire tracks and actual accident scenes. His opinion as to the cause of the accident, the accumulation of water at the site, was made from his firsthand knowledge gained from observing the road on which he lived for 25 years. He had a familiarity with the road that the jury did not have. His familiarity came from his experiences driving that portion of the highway.

¶ 28. Pittman’s testimony as to the occurrences of other accidents at the same location was also properly admitted. His testimony proved the dangerous conditions that Cargile apparently faced on the night of the accident. Also properly admitted was Pittman’s testimony regarding the calls that he allegedly made to MDOT that put it on notice of the conditions of that stretch of road when it rained. Pittman’s testimony supports Cargile’s allegation of knowledge by MDOT. It was properly for the trier of fact, that is, the trial judge, to determine the credibility of Pittman’s testimony. We will not disturb that decision absent a showing of abuse of discretion or that the trial judge was manifestly wrong.

III. DID THE TRIAL COURT ERR IN FINDING THAT THE MISSISSIPPI DEPARTMENT OF TRANSPORTATION DID NOT HAVE IMMUNITY UNDER MISS. CODE ANN. § 11-46-9?

¶ 29. MDOT further challenges the trial court’s refusal to find it immune under the Mississippi Tort Claims Act, Miss.Code Ann. § 11-46-9. MDOT contends that the maintenance of Highway 528 was a discretionary function of the MDOT by and through its agent Thornton, who inspected and maintained Highway 528 on a regular scheduled basis and as necessary. Further, MDOT maintains that, as a governmental entity, MDOT and its employees are not hable when exercising ordinary care. In finding that MDOT failed to exercise reasonable care in warning the public of a dangerous condition of which it had notice, MDOT contends that the trial court did not consider all of the evidence. MDOT asserts that the trial court lacked evidence as to the condition of the highway at the time of the accident. MDOT also cites the trial court’s failure to consider the evidence of the regular inspection and periodic and/or scheduled maintenance of the highway. Further, MDOT contends that the trial court did not consider MDOT’s expertise and discretionary power to take or not take any particular action with respect to highway maintenance even after a citizen request.

¶ 30. MDOT claims to have exercised reasonable care in maintaining the portion of Highway 528 where the accident took place. MDOT offered the testimony of Thornton who stated that he inspected the road weekly. Thornton testified that the week before the accident his inspection revealed only minor defects which he did not consider dangerous or in need of immediate repair. Finally, MDOT maintains that there was no objection to the evidence that there was a subsequent overlay of this highway because such overlay was not a remedial measure with respect to this accident.

¶ 31. Cargile insists that the trial court was correct in ruling that MDOT was not entitled to immunity under Miss.Code Ann. § 11-46-9. He argues that the act was not discretionary and alternatively that immunity was lost when MDOT received notice of the dangerous condition. Cargile cites Miss.Code Ann. § 65-1-65 (Rev.2001) as providing the ministerial duty of the maintenance of state highways:

It shall be the duty of the State Highway Commission to have the State Highway Department maintain all highways which have been or which may be hereafter taken over by the State Highway Department for maintenance in such a way as to afford convenient, comfortable, and economic use thereof by the public at all times. To this end it shall be the duty of the director, subject to the rules, regulations and orders of the commission as spread on its minutes, to organize an adequate and continuous patrol for the maintenance, repair, and inspection of all of the state-maintained state highway system, so that said highways may be kept under proper maintenance and repair at all times.

Id.

¶ 32. The Mississippi Tort Claims Act provides the exclusive remedy for a party injured by a governmental entity’s tortious acts or omissions. City of Tupelo v. Martin, 747 So.2d 822, 826 (Miss.1999). The relevant statute, Miss.Code Ann. § 11 — 46—7(l)(b), states that “a governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim arising our of any act of omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution” Id. Alternatively, Miss.Code Ann. § 11 — 46—9(l)(q) provides that “a governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim arising out of an injury solely by the effect of weather conditions and the use of streets and highways.” Id.

¶33. As before, Jones v. Mississippi Department of Transportation, 744 So.2d 256, 263 (Miss.1999), aids in our present explanation. The Tort Claims Act does not define “discretion.” Id. at 259. Prior to abolishment of judicially created sovereign immunity in Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982), this Court used two tests to determine immunity. The governmental/proprietary function test was used to determine whether a municipality was entitled to immunity. Jones, 744 So.2d at 259. In Parker v. City of Philadelphia, 725 So.2d 782, 784 (Miss.1998), we explained that:

Under pre Pruett common law, whether a city “enjoys the defense of sovereign immunity depends on whether the alleged conduct occurred in the exercise of a governmental function or in the exercise of a proprietary function.” Morgan v. City of Ruleville, 627 So.2d 275, 279 (Miss.1993); Webb v. Jackson, 583 So.2d 946, 952 (Miss.1991) A city performing a governmental function is immune from a negligence suit, whereas a city performing a proprietary function is not immune from a negligence suit. Morgan, 627 So.2d at 279; Webb, 583 So.2d at 952.

Parker, 725 So.2d at 784 (quoting Hord v.City of Yazoo City, 702 So.2d 121, 123 (Miss.1997).

¶ 34. However, this test is not applicable to the state and its political subdivisions. Jones, 744 So.2d at 259. See also Stokes v. Kemper County Bd. of Supervisors, 691 So.2d 391, 393 (Miss.1997); Miss. Transp. Comm’n v. Rector, 663 So.2d 601, 602 (Miss.1995).

¶ 35. At common law, this Court utilized the discretionary/ministerial test to determine the immunity status of a governmental employee. Jones, 744 So.2d at 259. Governmental employees are entitled to qualified immunity for discretionary acts. Id. Under Mohundro v. Alcorn County, 675 So.2d 848, 853 (Miss.1996), a duty is ministerial and not discretionary if it is imposed by law and its performance is not dependent on the employee’s judgment. Jones, 744 So.2d at 259-60 (citing Mohundro, 675 So.2d at 853; L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136 (Miss.1999). See also Barrett v. Miller, 599 So.2d 559, 567 (Miss.1992). The classic definition is found in Poyner v. Gilmore, 171 Miss. 859, 158 So. 922 (1935), where this Court stated:

[t]he most important criterion, is that [if] the duty is one which has been positively imposed by law and its performance required at a time and in a manner or upon conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer’s judgment or discretion, the act and discharge thereof is ministerial.

See Coplin v. Francis, 631 So.2d 752, 754 (Miss.1994) (quoting Poyner, 171 Miss, at 865, 158 So. at 923). See also Barrett v. Miller, 599 So.2d at 567; McFadden v. State, 542 So.2d 871, 877 (Miss.1989); Region VII, Mental Health-Mental Retardation Ctr. v. Isaac, 523 So.2d 1013 (Miss.1988).

¶ 36. In Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982), we said that the Legislature has “specifically limited the liability of governmental officials to ministerial functions alone, allowing those state employees to continue their basic policy-making decisions without fear of legal retribution.” Id. See also Givens, 754 So.2d at 1223.

¶ 37. We have further clarified the distinction as by defining it as directly correlated to the grant of immunity from negligent acts or omissions. State ex rel. Brazeale v. Lewis, 498 So.2d 321, 322 (Miss.1986). The basis for the immunity given to government officials is in the inherent need to promote efficient and timely decision-making without fear of liability. Id. This distinction is an integral part of the justice system and works to encourage free participation and hinder fear that goes with risk-taking situations and the exercise of sound judgment. Id.

¶ 38. In Brazeale, the plaintiff sued a member of the board of supervisors alleging negligent repair and maintenance of a county road for injuries and damages which she alleged were proximately caused by the condition of the road. Id. She alleged there were numerous holes, indentations and rough spots along the road creating a hazardous condition that caused her accident. Id. at 322. . Relevant in the case sub judice, the Court stated that:

[i]f an individual had a ministerial duty or function to maintain the roads of his district, we recognize that, for various reasons, at least some of the roads may be in a state of disrepair from time to time, particularly because of the lack of funds, which would, of course, require that the main heavily traveled roads receive the supervisor’s immediate attention ... Certainly making the determination as to which roads should be the better maintained under such conditions would be a discretionary matter with the individual, absent some personal tort committed by him.

Id. at 323.

¶ 39. ■ At common law, prior to the enactment of § ll-46-l(w), upon receipt of notice, a governmental entity had a duty to warn of a dangerous condition. Jones, 744 So.2d at 260 (citing Coplin, 631 So.2d at 755).' ■ We have held that even where actions are deemed to be discretionary, rather than ministerial, the question may remain whether- the' public was afforded adequate warnings of the dangerous condition. Id. at 260. Miss Code Ann. § 11— 46-9 requires the actor to exercise a minimum standard of ordinary care to maintain the statutory shield. Id. As in Jones, MDOT has a duty to warn of dangerous conditions if given notice, either actual or constructive, of a dangerous condition. 744 So.2d at 260. MDOT’s duty becomes one of ordinary care in warning and/or providing relief from the dangerous condition to those who use the roads. Id. As previously stated, immunity for discretionary duties is granted only when ordinary care is used. See Brewer v. Burdette, 768 So.2d 920, 923 (Miss.2000); L.W., 754 So.2d at 1142. The government actor’s use of ordinary care is a question for the finder of fact. Brewer, 768 So.2d at 923; L.W., 754 So.2d at 1142.

¶ 40. In Brewer we held that road maintenance and repair are discretionary acts. Id. (citing Mohundro, 675 So.2d at 854). Using all of the relevant facts, the trial court is charged with deciding whether the decision maker used ordinary care. Id. at 928 (citing L.W., 754 So.2d at 1141).

¶41. In Mohundro, Dixon, an Alcorn County supervisor, failed to use the requisite ordinary care when performing his job of inspecting and maintaining the county roads. 675 So.2d at 848. The supervisor personally observed a large washout in the middle of the county road on Sunday. Id. at 850. He ordered another county employee to place yellow warning signs on the road to the north and south of the washout. Id. The signs were not lit. Id. Furthermore, they were scarcely anchored in place. Id. Although Dixon was worried that someone might drive into the washout and made several trips to the scene, he took no other action. Id. He intended to fix it on Monday. Id.

¶ 42. Mohundro drove his truck into the washout early Monday morning. Id. The darkness and rain prevented him from seeing the pit. Id. Mohundro suffered catastrophic injuries which rendered him a quadriplegic. Id.

¶ 43. Even though he was aware of the dangerous condition, by the time Mohun-dro drove into the pit Monday morning Dixon had still made no effort to warn the public. Id. at 854. We held that Dixon acted with such gross negligence and/or callous indifference to the safety of the public as a whole his conduct was held to be constructively intentional. Id. Dixon was not entitled to immunity. Id. at 854 (citing McFadden v. State, 542 So.2d 871 (Miss.1989)).

¶ 44. Here, the trial court correctly found MDOT’s duty to regularly inspect and maintain Highway 528 to be discretionary. As previously stated, even where actions are deemed to be discretionary, rather than ministerial, the question in this case was whether the public was afforded adequate warnings of the dangerous condition. Miss.Code Ann. § 11-46-9 requires MDOT to exercise a minimum standard of ordinary care to maintain the statutory shield. As in Jones, MDOT has a duty to warn of dangerous conditions if given notice, either actual or constructive, of a dangerous condition. MDOT’s duty became one of ordinary care in warning and/or providing relief from the dangerous condition to those who use the roads. Immunity for discretionary duties is granted only when ordinary care is used. See Brewer v. Burdette, 768 So.2d at 920; L.W., 754 So.2d at 1142. The government actor’s use of ordinary care is a question for the finder of fact. Brewer, 768 So.2d at 923; L.W., 754 So.2d at 1142. As a result, the trial judge, as the finder of fact, was the proper person to decide whether MDOT used ordinary care. The trial court held MDOT to be partially responsible and apportioned 50% fault to MDOT. This issue is without merit.

CONCLUSION

¶ 45. For these reasons, the trial court’s judgment is affirmed.

¶ 46. AFFIRMED.

PITTMAN, C.J., McRAE, P.J., EASLEY, CARLSON AND GRAVES, JJ., CONCUR. COBB, J., CONCURS IN RESULT ONLY. WALLER, J., DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

      . Effective May 29, 2003, M.R.E. 701 has been amended. However, we cite the version in effect when this case was tried.


author: THOMAS, J.,

text:
    T & S EXPRESS, INC., Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 2001-CA-00223-COA.
    Court of Appeals of Mississippi.
    March 25, 2003.
    Rehearing Denied June 3, 2003.
    Sam Starnes Thomas, Jackson, for appellant.

      R. Brittain Virden, Greenville, for appel-lee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the court.

¶ 1. T & S Express was found to be the real party in interest and was ordered to pay Liberty Mutual full indemnity of $298,000. Aggrieved T & S asserts the following on appeal.

I. THE TRIAL COURT ERRED IN FAILING TO GRANT THE DIRECTED VERDICT MOTION, PEREMPTORY INSTRUCTION AND MOTION FOR JUDGEMENT NOTWITHSTANDING THE VERDICT.

II. A NEW TRIAL IS IN ORDER AS THE TRIAL COURT ERRED IN GRANTING TWO JURY INSTRUCTIONS OFFERED BY LIBERTY AND REFUSING NUMEROUS JURY INSTRUCTIONS OFFERED BY T & S.

We reverse and render.

FACTS

¶ 2. Liberty Mutual Insurance Company sought indemnity against T & S Express, Inc., hereafter referred to as T & S, for a personal injury claim which Liberty paid on behalf of Norton Ramsey Motor Lines, Inc., its insured. Norton was sued as the employer of Thomas Teague under respon-deat superior. It is undisputed that at the time of the accident, while Teague was driving a truck with Norton placards, he was actually employed by T & S. Teague’s truck collided with a vehicle driven by the Myerses. The Myerses sued Norton and, as Norton’s insurer, Liberty represented Norton against the claim. Liberty’s motion for summary judgment was denied, and subsequently rather than taking the claim to trial, Liberty decided to settle the case by paying the Myerses $298,000, reserving indemnification rights therein.

¶ 3. The Myerses attempted to file suit against T & S directly but were barred by the statute of limitations. Norton filed a third party complaint denying any liability to the Myerses and asserting a right to indemnification from T & S for any damages imposed on Norton in favor of the Myerses. T & S sought but was denied summary judgment on the indemnity claim. A jury found against T & S on the indemnity claim and awarded Liberty full indemnification.

I. THE TRIAL COURT ERRED IN FAILING TO GRANT THE DIRECTED VERDICT MOTION, PEREMPTORY INSTRUCTION AND MOTION FOR JUDGEMENT NOTWITHSTANDING THE VERDICT.

¶ 4. This Court’s standard of review for the denial of a judgment notwithstanding the verdict, peremptory instructions, and directed verdict is as follows:

[T]his Court will consider the evidence in the light most favorable to the appel-lee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required. The above standards of review, however, are predicated on the fact that the trial judge applied the correct law.

Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss.1997).

¶ 5. The comment to M.R.C.P. 50, which provides for motions for a directed verdict and for judgment notwithstanding the verdict, states that “Rule 50 is a device for the court to enforce the rules of law by taking away from the jury cases in which the facts are sufficiently clear that the law requires a particular result.” M.R.C.P. 50 cmt.

¶ 6. The motion for a directed verdict at the conclusion of the plaintiffs case tests the legal sufficiency of the evidence to support the verdict for the plaintiff. M.R.C.P.50(a). Upon denial of the motion for a directed verdict at the close of all evidence, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Once a verdict is returned, the court may direct the entry of judgment as if the requested directed verdict had been granted. M.R.C.P. 50(b). Whether the court should have granted the motion here depends upon whether the evidence is insufficient as a matter of law to sustain the verdict for Liberty. Patton-Tully Transp. Co. v. Douglas 761 So.2d 835, 843(¶ 36) (Miss.2000).

¶ 7. In this State, the origins of indemnity are as follows:

An obligation to indemnify may arise from a contractual relation, from an implied contractual relation, or out of liability imposed by law. When one person is required to pay money which another person in all fairness should pay, then the former may recover indemnity from the latter in the amount which he paid, provided the person making the payment has not conducted himself in a wrongful manner so as to bar his recovery.

Bush v. City of Laurel, 215 So.2d 256, 259 (Miss.1968) (citing 42 C.J.S. §§ 20 (1944));

Hartford Cas. Ins. Co. v. Halliburton Co. 826 So.2d 1206, 1216(¶35) (Miss.2001). Two “critical” prerequisites of noncontrac-tual implied indemnity in Mississippi are:

(1) The damages which the claimant seeks to shift are imposed upon him as a result of some legal obligation to the injured person; and
(2) it must appear that the claimant did not actively or affirmatively participate in the wrong.

Home Ins. Co. v. Atlas Tank Mfg. Co., 230 So.2d 549, 551 (Miss.1970) (citing Bush v. City of Laurel, 215 So.2d 256 (Miss.1968); Southwest Miss. Elec. Power Ass’n v. Harragill, 254 Miss. 460, 182 So.2d 220 (1966)). In order for Liberty to prevail on its indemnity claim, it must allege and prove that there was a legal obligation to pay and that it did not actively or affirmatively participate in the wrong. Id.

¶ 8. The central question for determination is whether Liberty paid the Myerses out of a legal obligation or whether the payment was voluntary. There were never any disputed facts in this case. Liberty, under a contractual obligation, defended Norton in the suit and contended that Norton was in no way at fault. Liberty then, upon denial of summary judgment, settled the case with the Myerses for $298,000. Liberty had an obligation to prove, at trial, that it had an obligation to pay the Myerses and that, the obligation arose from the acts of T & S.

¶ 9. The evident problem with Liberty Mutual’s claimed right of common law sub-rogation — one that we find insurmountable on the record now before us — lies in the fact that Liberty Mutual has never demonstrated in any forum that it was under a legal obligation to pay Myers the sum of $298,000, or any other amount, on behalf of its insured, Norton Ramsey. This legal obligation is, as we have already observed, the first element of a claim of common law subrogation. Myers based his claim against Norton Ramsey on the “placard” theory. Under that theory, the appearance of Norton Ramsey’s identifying information on the truck was, of itself, sufficient to make that company hable for any damage caused by the negligent operation of the vehicle, despite the fact that, at the time of the accident, the truck was actually being used to further the business purposes of T & S. Norton Ramsey contended in the suit brought against it by Myers that, under the facts of the case, the “placard” rule had no application and sought summary judgment on that basis. Though the effort to obtain summary judgment was unsuccessful, it goes without saying that the denial of a defendant’s summary judgment motion is not the equivalent of a final adjudication of the defendant’s liability. Rather than continuing to pursue what Norton Ramsey (and Liberty Mutual, indirectly) apparently believed to be a valid defense to Myers’s claim, Liberty Mutual elected, for reasons not appearing in this record, to effect a settlement with Myers. There is no authority, insofar as this Court is aware, holding that the mere compromise of a disputed claim is the equivalent of the payment of a legal obligation within the meaning of the law relating to common law subrogation. Neither does it appear that the issue of whether Liberty Mutual’s settlement payment to Myers was in satisfaction of a legal obligation of Norton Ramsey was litigated and adjudicated at the trial level in the action now before us on appeal. In that circumstance, we are constrained to hold that Liberty Mutual has failed, as a matter of law, to establish critical facts necessary to support its claim for subrogation asserted against T & S.

¶ 10. Liberty relies heavily on Bush v. City of Laurel, 215 So.2d 256, 259 (Miss.1968), to argue its right of indemnity. In Bush, the City of Laurel settled with Bush for $10,000, and sought indemnity from the contractor. The Supreme Court ruled that the city had a non-delegable duty which created an obligation to pay. In the case sub judice no such obligation is present.

¶ 11. The Court recognizes the origins of indemnity as when one person is required to pay money which another person in all fairness should pay, then the former may recover indemnity from the latter. Hartford Cas. Ins. Co. v. Halliburton Co. 826 So.2d 1206, 1216(¶ 35) (Miss.2001). The key element of this theory that is missing in the present case is the requirement to pay; there was not one. Liberty was required to show at trial that it paid the Myerses under an obligation and that the payment was reasonable. The Myers-es claim against T & S was time barred and allowing recovery in this way without comporting with the requirements of indemnity law would render the statute of limitations non-effective.

¶ 12. At no time during the trial did Liberty produce any evidence regarding its obligation to pay the Myerses. Liberty had no liability to the Myerses and did not show anything other than an absence of liability. There can be no recovery without proving that a legal obligation existed. These are issues of law based upon facts that are undisputed; therefore, the trial court should have granted a directed verdict in favor of T & S.

II. A NEW TRIAL IS IN ORDER AS THE TRIAL COURT ERRED IN GRANTING TWO JURY INSTRUCTIONS OFFERED BY LIBERTY AND REFUSING NUMEROUS JURY INSTRUCTIONS OFFERED BY T & S.

¶ 13. Review of this issue is not required.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY IS REVERSED AND RENDERED. COSTS ARE TAXED AGAINST THE APPELLEE.

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


author: LEE, J.,

text:
    Lurandall McNULTY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00587-COA.
    Court of Appeals of Mississippi.
    June 3, 2003.
    William E. Goodwin, Brookhaven, attorney for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and CHANDLER, JJ.
   LEE, J.,

for the court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On January 25, 2001, Helen Brum-field called the police to complain that three men, including the appellant, were next door and one was holding a gun. Upon arrival, Officer Rodney Nordstrom saw Lurandall McNulty drop something and kick it under a vehicle. The officer approached McNulty and retrieved a handgun from under the vehicle. McNulty was a convicted felon, and the officer arrested him for unlawful possession of a firearm.

¶ 2. After a trial in March 2002, a Pike County jury convicted McNulty as a convicted felon in possession of a firearm. McNulty was subsequently sentenced to serve three years in the custody of the Mississippi Department of Corrections and was ordered to pay a $1,000 fine plus fees and costs. McNulty’s motion for judgment notwithstanding the verdict or in the alternative a new trial was denied, and he now appeals to this Court arguing the verdict was against the overwhelming weight of the evidence. We review McNulty’s appeal and find no merit; thus, we affirm.

DISCUSSION

I. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶3. McNulty’s sole issue on appeal is that the verdict was against the weight of the evidence. Looking to his argument, however, he actually claims that the evidence against him was insufficient; thus we look to standards of review concerning both the weight and sufficiency of evidence.

When the legal sufficiency of evidence is called into question, “our authority to interfere with the jury’s verdict is quite limited.” The prosecution must be given the benefit of all favorable inferences that can reasonably be drawn from the evidence. “[I]f there is in the record substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fairminded jurors in the exercise of impartial judgment might have reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb.” Factual disputes are not sufficient to mandate a new trial, but rather, are properly resolved by the jury.
As to whether the verdict is contrary to the overwhelming weight of the evidence, a similar standard is employed. We view the evidence in the light most favorable to the verdict. The trial court is given discretion to order a new trial only to prevent an unconscionable injustice in the face of overwhelming evidence contrary to the jury’s verdict.

Carter v. State, 811 So.2d 424 (¶¶ 7-8) (Miss.Ct.App.2001) (citations omitted).

¶4. McNulty claims that the record is void of any evidence which could sustain a verdict of guilty. Specifically, McNulty argues that Officer Nordstrom never testified that he actually saw the gun in McNulty’s possession. McNulty also argues that the prosecution failed to produce any fingerprints from the gun which could connect him to the weapon.

¶ 5. The State points out that McNulty has not preserved for review the issue concerning weight of the evidence since he failed to raise it in his motion for judgment notwithstanding the verdict or new trial. See Sheffield v. State, 749 So.2d 123(1110) (Miss.1999). We agree. We do, however, address McNulty’s argument concerning sufficiency of the evidence.

¶ 6. The evidence in this case was considerable. McNulty admitted he was a convicted felon. Helen Brumfield, who called the police, testified that she looked out her window and then went to her front porch and saw McNulty and two other men standing around two vehicles, and McNulty had a gun in his hand. Officer Nordstrom of the McComb Police Department responded to Brumfield’s call and testified that upon arriving, he saw McNulty standing apart from two men and saw McNulty walk toward the front of a nearby vehicle, take his hand from his pocket and make a stopping movement and then kicking movement with his foot. Officer Nordstrom then went to the front of the vehicle and found a handgun six to eight inches under the vehicle and arrested McNulty.

¶ 7. Pursuant to our standard of review, we give all reasonable inferences to the prosecution and leave factual disputes to the jury. Carter, 811 So.2d at (¶ 7). McNulty claims that the evidence against him was a “series of conjectures and speculation.” However, we find a reasonable inference from the evidence is that McNulty had the gun in his pocket when the officer arrived, then he moved to the front of the car and dropped the gun and kicked it under the car in an attempt to hide the gun. A reasonable hypothetical juror could find McNulty guilty based on the evidence presented, and we find the evidence sufficient to support the verdict.

¶ 8. THE JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF THREE YEARS TO RUN CONCURRENTLY WITH THE REMAINDER OF THE SENTENCE IMPOSED IN CAUSE NO. 00-039-KB, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND ORDER TO PAY A $1,000 FINE IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO PIKE COUNTY.

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


text:
    Cheryl White STRAIN, Appellant, v. Kenneth Murdock STRAIN, III, Appellee.
    No. 2001-CA-01628-COA.
    Court of Appeals of Mississippi.
    June 3, 2003.

      John Robert White, Jackson, attorney for appellant.
    Stephen L. Beach, Jackson, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and GRIFFIS, JJ.
   LEE, J.,

for the court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Cheryl White Strain and Kenneth Murdock Strain were married in 1988. They had two. children, Wesley, born June 18, 1990, and Ashlee, born October 18, 1991. A complaint for divorce was filed in the Rankin County Chancery Court on April 3,1992, and a divorce on the grounds of irreconcilable differences was granted on March 26, 1993. Cheryl was granted primary custody of the minor children and Kenneth was granted visitation rights. Kenneth was also required to provide child support and payments for insurance and medical expenses. During the divorce Kenneth moved to Sarasota, Florida.

¶ 2. Since the divorce, Cheryl has filed numerous motions in the Rankin County Chancery Court, including three for contempt as a result of Kenneth’s failure to timely pay child support. Kenneth has also filed various motions, most of which deal with modifications of the original judgment of divorce. On July 12, 2001, the chancellor entered a judgment of modification which altered the visitation schedule. The children were to have visitation with Kenneth at his Florida residence from July 23, 2001, through August 12, 2001. Cheryl was allowed a short visitation in Florida during this time period from August 3 through August 5.

¶ 3. During Cheryl’s weekend visitation with the children in Florida, she brought the children back to Mississippi instead of giving them back to Kenneth for the rest of his visitation. Cheryl also neglected to inform Kenneth that she was taking the children back to Mississippi. Kenneth subsequently filed a petition for judgment of contempt on August 16, 2001, after which Cheryl filed an answer and a counter-petition for various relief. After a hearing on September 24, 2001, the chancellor found Cheryl in contempt for her interruption of Kenneth’s visitation. The chancellor declined to incarcerate Cheryl or assess her with attorneys fees. Kenneth was not found in contempt on any of the claims that Cheryl filed. Cheryl has appealed to this Court asserting the following issues: (1) the chancellor erred in holding Cheryl in contempt; (2) the chancellor erred in failing to hold Kenneth in contempt for his failure to pay child support; (3) the chancellor erred in failing to hold Kenneth in contempt for his failure to pay medical expenses; and (4) the chancellor erred in failing to hold Kenneth in contempt for his failure to provide proof of life insurance coverage. Finding no merit to the issues presented, we affirm.

DISCUSSION OF ISSUES

I. WHETHER THE CHANCELLOR ERRED IN HOLDING CHERYL IN CONTEMPT?

¶ 4. We now look to our standard of review in contempt cases. A citation for contempt is determined upon the facts of each case and is a matter for the trier of fact. Milam v. Milam, 509 So.2d 864, 866 (Miss.1987). A citation is proper when “the contemnor has willfully and deliberately ignored the order of the court.” Bredemeier v. Jackson, 689 So.2d 770, 777 (Miss.1997). The factual findings of the chancellor in civil contempt cases are affirmed unless manifest error is present. Purvis v. Purvis, 657 So.2d 794, 797 (Miss.1994) (citing Caldwell v. Caldwell, 579 So.2d 543, 545 (Miss.1991)). Contempt matters are committed to the sound discretion of the trial court, and we will not reverse where the chancellor’s findings are supported by substantial credible evidence. Id.

¶ 5. At the hearing, Cheryl testified that she took the children because they were complaining about their summer visitation. The children told Cheryl that they had to sleep in the same room, although not in the same bed, they were not fed breakfast, they had lost a few pounds, they did not get to spend enough time with Kenneth, they had to spend some time with their stepmother at the restaurant where she worked, and they were not having any fun. During their testimony, the children said that the mother told them that their father was trying to put her in jail. In her testimony, Ashlee did state that she was well fed and did not normally eat a lot for breakfast anyway. Cheryl also testified that she did not tell Kenneth that she was taking the children back to Mississippi.

¶ 6. The chancellor found Cheryl to be in contempt of court because she interrupted Kenneth’s summer visitation rights with the children. The chancellor also found the children’s testimony to be less than reliable, as he stated in his findings of fact and conclusions of law, “what the Court heard from the children, in the Court’s opinion, is they said exactly what they were told to say.” According to the chancellor, the children “did, in fact, eat breakfast even though it may have been later than usual.”

¶ 7. In finding Cheryl in contempt, the chancellor stated that “the concerns of Cheryl that the children told her about do not justify her actions in interrupting the children’s visitation with their father.” The chancellor also stated that “the mother considers all her actions to be proper conduct and nothing this Court can do will change her opinion, no matter how mistaken.” Finding credible evidence in support of the chancellor’s decision and no manifest error, we must affirm the judgment of contempt against Cheryl.

II. DID THE CHANCELLOR ERR IN FAILING TO FIND KENNETH IN CONTEMPT FOR FAILURE TO PAY CHILD SUPPORT?

¶ 8. As this issue also addresses contempt, we are still bound by the previously addressed standard of review in contempt cases. Cheryl contends that the chancellor should have found Kenneth in contempt for his failure to pay child support on time. There was a payment due on September 15, 2001, and, in the record, there is a copy of a check from Kenneth to the Department of Human Services dated September 18, 2001. Although the payment had not been credited by the time it was due, according to the record, Kenneth was current with his child support payments.

¶ 9. This Court has stated that civil contempt is not a proper recourse when there are no overdue payments at the time of trial. Lipsey v. Lipsey, 755 So.2d 564(¶ 17) (Miss.Ct.App.2000). Kenneth was late on several payments, but was not past due on any payment obligations at the time of trial. The chancellor did not find Kenneth in contempt and we can find no error in this determination.

III. DID THE CHANCELLOR ERR IN FAILING TO FIND KENNETH IN CONTEMPT FOR FAILURE TO PAY MEDICAL EXPENSES?

¶ 10. With this issue, Cheryl contends that Kenneth should have been found in contempt for failure to timely pay medical expenses of the children. We still look to our standard of review relating to contempt issues. Kenneth owed $295 for medical expenses and, rather than sending a check in the mail when they were due on August 20, 2001, he paid them at the hearing on September 24, 2001. According to his testimony, Kenneth thought it would be better to pay them in person rather than chance the payment getting lost in the mail. Although the chancellor noted that Kenneth had paid the medical expenses, he admonished Kenneth for being so late in his payments and told him to be on time in the future. We can find no error in the chancellor’s decision not to find Kenneth in contempt on this issue.

IV. DID THE CHANCELLOR ERR IN FAILING TO FIND KENNETH IN CONTEMPT FOR FAILURE TO PROVIDE PROOF OF LIFE INSURANCE COVERAGE?

¶ 11. With her last issue, Cheryl contends that Kenneth should be held in contempt for failing to provide proof of life insurance, pursuant to the original divorce decree. Kenneth testified that he did provide proof of a policy to Cheryl right after the divorce in 1993. Kenneth also testified that his insurance has changed and, since the change in January of 2001, he had not provided Cheryl with any proof of life insurance. However, Kenneth stated that Cheryl had a copy of his most recent life insurance policy.

¶ 12. The chancellor ordered Kenneth to provide proof of his life insurance coverage immediately. Furthermore, the chancellor stated, “If this issue is brought before the Court again, and no proof is shown to this Court, Kenneth shall be held in contempt of this Court’s order.” Although we may have found Kenneth in contempt, we cannot find that the chancellor manifestly erred in failing to do so.

¶ 13. THE JUDGMENT OF THE RANKIN COUNTY CHANCERY COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

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


text:
    Robert EACHOLES a/k/a Robert Echols, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002CP01489COA.
    Court of Appeals of Mississippi.
    June 3, 2003.
    Robert Eacholes (Pro Se), attorney for appellant.
    Office of the Attorney General by: Billy L. Gore, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and GRIFFIS, JJ.
   LEE, J.,

for the court

PROCEDURAL HISTORY AND FACTS

¶ 1. On April 30, 2001, Robert Eacholes pled guilty in the Calhoun County Circuit Court to two counts of the sale of a controlled substance, cocaine, and was sentenced to fifteen years on each count in the custody of the Mississippi Department of Corrections, with seven years suspended and eight years to serve concurrently on each count, including five years’ post-release supervision. Eacholes filed a motion for post-conviction collateral relief on September 27, 2001. This motion was denied on August 20, 2002. Eacholes now appeals the denial of post-conviction relief to this Court, asserting that his guilty plea was not voluntary and that he should be granted an evidentiary hearing to prove this claim. Finding no merit, we affirm.

DISCUSSION OF ISSUE

¶ 2. In reviewing a trial court’s denial of post-conviction relief, our standard of review is well stated. We will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised the applicable standard of review is de novo. Pace v. State, 770 So.2d 1052(¶ 4) (Miss.Ct.App.2000).

¶3. With this issue, Eacholes claims that he was scared to proceed to trial and, therefore, pled guilty, because he overheard his attorney tell the district attorney that he was not in a “fighting mood.” According to the Mississippi Supreme Court, if the defendant is advised regarding the nature of the charge and the consequences of the plea, then the plea is considered voluntary and intelligent. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). Furthermore, “solemn declarations in open court carry a strong presumption of verity.” Baker v. State, 358 So.2d 401, 403 (Miss.1978). In the present case, the record reflects that Eacholes was informed of the charges against him and the possible sentence. The record also reveals that Eacholes admitted to committing the crimes charged. In light of the fact that Eacholes stated under oath that he understood the consequences of pleading guilty and that no one had made any representations to him regarding his sentence, we find Eacholes’ argument that his plea was not voluntary to be without merit.

¶4. Eacholes also briefly mentions that there was not enough evidence for the judge to accept the guilty plea, and that he should have been granted an evi-dentiary hearing. In order to receive an evidentiary hearing, the movant must demonstrate, through affidavits or otherwise, the potential existence of facts that, if proven at the hearing, would entitled the movant to relief. Potts v. State, 755 So.2d 1196(¶ 5) (Miss.Ct.App.1999). In the case before us, Eacholes’ claim, unsupported by anything other than his own assertion, that the evidence was insufficient is substantially contradicted by his own admission of guilt at the plea hearing. We cannot disturb a lower court’s findings unless they are found to be clearly erroneous, and here, we cannot do so.

¶ 5. THE JUDGMENT OF THE CALHOUN COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO CALHOUN COUNTY.

McMILLIN, C.J., KING and SOUTHWICK, P.J.J., BRIDGES, THOMAS, IRVING, MYERS, CHANDLER and GRIFFIS, JJ., concur.


text:
    Christopher Jerome McDONALD, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01744-COA.
    Court of Appeals of Mississippi.
    June 3, 2003.

      Christopher Jerome McDonald (pro se), attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and GRIFFIS, JJ.
   LEE, J.,

for the court.

¶ 1. In August 2001, a Lowndes County Circuit Court jury indicted Christopher Jerome McDonald on two counts of possession of precursor chemicals with intent to manufacture methamphetamine in violation of Miss.Code Ann. § 41-29-313 (Rev. 2001). In November 2001, McDonald pled guilty to Count II, with Count I being retired, and he was sentenced to serve twelve years’ imprisonment. In August 2002, McDonald filed a motion for post-conviction relief, which was dismissed, and he now appeals to this court arguing double jeopardy and ineffective assistance of counsel. We review these arguments and find no merit; thus, we affirm.

DISCUSSION OF THE ISSUES

I. WERE THE APPELLANT’S RIGHTS AGAINST DOUBLE JEOPARDY VIOLATED?

¶ 2. At the time of McDonald’s arrest, he had in his possession boxes of sinus tablets containing ephedrine, which were packaged in boxes of forty-eight phis. With this first issue, McDonald argues that he was subjected to double jeopardy since both counts of his indictment used the same possession of ephedrine. “In reviewing a trial court’s decision to deny a motion for post-conviction relief the standard of review is clear. The trial court’s denial will not be reversed absent a finding that the trial court’s decision was clearly erroneous.” Chancellor v. State, 809 So.2d 700(¶ 5) (Miss.Ct.App.2001).

¶ 8. Count I of McDonald’s indictment charged him with possessing “a Methamphetamine precursor chemical, to wit: ephedrine, in an amount in excess of Two Hundred Fifty (250) dosage units, under circumstances where one reasonably should know that the said chemicals or drugs would be used to unlawfully manufacture Methamphetamine, a controlled substance, in violation of MCA § 41-29-313 .... ” (emphasis added). Count II of McDonald’s indictment charged him with possessing “at least two Methamphetamine precursor chemicals, to wit: ephedrine, liquid heat, and ethyl alcohol, under circumstances where one reasonably should know that the said chemicals or drugs would be used to unlawfully manufacture Methamphetamine, a controlled substance, in violation of MCA § 41-29-313 -” (emphasis added).

The Double Jeopardy Clause of the Fifth Amendment reads as follows, “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” This proscription “has been applied to the states through the Due Process Clause of the Fourteenth Amendment.” Double jeopardy protection applies to successive prosecutions for the same criminal offense.

Thomas v. State, 711 So.2d 867(¶ 15) (Miss.1998) (citations omitted). In dismissing McDonald’s petition for post-conviction relief, the trial court noted with regard to McDonald’s double jeopardy argument, “[t]he Court finds this claim to be without merit since the Petitioner was only sentenced on one count of his indictment and one count was retired.” Here, though both counts of McDonald’s indictment may concern the same ephedrine, he was not prosecuted, tried nor convicted on both counts. Accordingly, we find his rights against double jeopardy were not violated.

II. WAS APPELLANT’S COUNSEL INEFFECTIVE?

¶ 4. McDonald also argues that his counsel was ineffective for failing to object to his faulty indictment.

The standard of review for ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The test to be applied is (1) whether counsel’s overall performance was deficient and (2) whether or not the deficient performance, if any, prejudiced the defense. The defendant has the burden of proving both prongs. The adequacy of counsel’s performance, as to its deficiency and prejudicial effect, should be measured by a “totality of the circumstances.” However, there is a strong, yet rebuttable, presumption that the actions by the defense counsel were reasonable and strategic. In short, defense counsel is presumed competent.

Ratliff v. State, 752 So.2d 416(¶ 6) (Miss.Ct.App.1999) (citations omitted).

¶ 5. McDonald argues that his counsel failed to comprehend the double jeopardy issue and failed to file a motion to dismiss for faulty indictment, which he claims was in order. However, we find no evidence that his attorney’s actions in any way undermined confidence in the outcome of his guilty plea. The sole ground on which McDonald claims his counsel’s performance was inadequate was without merit, as discussed in the first issue of this opinion; thus, the first prong of Strickland and subsequently the second prong are not satisfied. McDonald has the burden of proving his counsel failed to effectively represent him, or that he suffered any prejudice, and he has failed to do so; thus, we find this issue without merit.

¶ 6. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT DISMISSING APPELLANT’S PETITION FOR POST-CONVICTION RELIEF IS AlFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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


author: SOUTHWICK, P.J.,

text:
    Troy M. DAUGHTERY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01428-COA.
    Court of Appeals of Mississippi.
    June 3, 2003.

      Troy M. Daughtery (pro se), attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and GRIFFIS, JJ.
   SOUTHWICK, P.J.,

for the court..

¶ 1. Troy Daughtery’s petition for post-conviction collateral relief was denied. On appeal, he alleges that his guilty plea was involuntary, that his counsel was ineffective, and his sentence was in violation of statute. We do not find such errors, and therefore affirm.

FACTS

¶ 2. On June 1,1999, Troy M. Daughtery entered a plea of guilty to the charge of capital murder. In exchange for the plea, the State agreed not to seek the death penalty. Daughtery duly executed a petition to plead guilty and, after a thorough hearing, the plea was accepted by the court.

¶ 3. Daughtery filed for post-conviction relief on May 29, 2002, claiming various errors. The circuit court found the petition without merit and denied all requested relief on July 29, 2002. Daughtery has appealed.

DISCUSSION

1. Involuntary plea

¶ 4. Daughtery first alleges that his guilty plea was involuntary because it was the product of coercion by his counsel. He claims that his counsel repeatedly threatened him that he would receive the death penalty should Daughtery decline to accept the State’s plea bargain, thereby coercing him. Daughtery also alleges the plea was induced by promise of leniency.

¶ 5. By entering a guilty plea, a defendant waives certain constitutionally guaranteed protections. Specifically, a defendant waives the right to a jury trial, right to confront his accusers, and the right against compelled self-incrimination. Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). It is the trial court’s responsibility to assure that the plea is voluntary by determining whether the defendant understands the meaning and consequences of the plea. A plea induced by fear, violence, deception or improper inducements is not voluntary. URCCC 8.04(A)(3).

¶6. Since Daughtery complains of his counsel’s advice, we note that a defense attorney has a duty to fairly, even if that means pessimistically, inform the client of the likely outcome of a trial based upon the facts of the case. If, after assessing the case, counsel believes that his client’s best interest would be served by accepting a plea, he is obliged to inform the client. Polk County v. Dodson, 454 U.S. 312, 318, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981).

¶ 7. Despite this obligation, defense counsel may only urge a defendant in a particular course. Counsel may not accept a plea on the defendant’s behalf. Even if Daughtery accepted the plea entirely because he was afraid of receiving the death penalty, that would not render it involuntary. North Carolina v. Alford, 400 U.S. 25, 81, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Counsel in this case made Daughtery aware of the likelihood of success at trial. The fact that the prospects appeared grim does not constitute coercion.

¶ 8. Daughtery also complains that a promise of leniency overcame his free will. Daughtery was offered a bargain that would drop the death penalty in exchange for the plea. Guilty pleas induced by promises or assurances which go unfulfilled may be held involuntary when the defendant relies upon such promises. Mowdy v. State, 638 So.2d 738, 747 (Miss.1994). That is not the case here. Daugh-tery received all benefits that he was offered under the plea bargain.

2. Ineffective assistance of counsel

¶ 9. Daughtery next claims that he was prejudiced by ineffective assistance of counsel for the following reasons: counsel failed to submit a psychiatric report to the court which may have provided an insanity defense; counsel advised him to lie about being on psychiatric medications at the plea hearing; counsel advised him he could not be convicted of anything less than capital murder at trial; and counsel incorrectly advised Daughtery that he would be eligible for parole at age sixty-five. Daughtery states that these caused him to enter a guilty plea instead of standing trial.

¶ 10. We review claims of ineffective assistance of counsel based upon a two-part inquiry: (1) whether counsel’s performance was deficient; and (2) whether that deficiency caused prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Deficient performance is evaluated by whether counsel’s advice falls outside objective parameters of professional reasonableness. Id. at 687-88, 104 S.Ct. 2052. Prejudice is measured by whether the result of the proceedings would have been different but for counsel’s deficiency. Cole v. State, 666 So.2d 767, 775 (Miss.1995).

¶ 11. The psychiatric report to which Daughtery refers is included in the record. At his own request, Daughtery was evaluated by a clinical and forensic psychologist. The report states that Daughtery has certain cognitive and affective abnormalities. It does not state that Daughtery was unable to appreciate the quality and nature of his criminal act at the time he committed it, or that he was aware of those things but unable to appreciate that the act was wrong. This is the M’Naghton test of insanity as a legal defense to criminal prosecution, the test used in this state. Laney v. State, 486 So.2d 1242, 1245 (Miss.1986). Lacking any suggestion of legal insanity in this professional evaluation, counsel cannot be faulted for declining to pursue an insanity defense.

¶ 12. The report was mentioned to the trial court by defense counsel at the plea hearing. Counsel stated that “no question has ever been raised as a result of that concerning his competency ... in preparing for trial,” which we find to be an accurate characterization. The court was made aware of the relevance of the report to the plea, and no ineffectiveness of counsel is displayed by this.

¶ 13. In support of his contention that counsel told him to lie about being on psychiatric medication, Daughtery submits the sworn joint affidavit of his mother and sister-in-law, both of whom were present at a meeting with counsel and the defendant prior to the plea hearing. Both women swear that Daughtery told his attorney that he was taking anti-depressant and anti-anxiety medication as well as seeing a counselor relating to the recent death of his father. Counsel then allegedly told Daughtery to state that he had not taken medication or seen a counselor for several months, otherwise the judge would reject the plea. They also swear that counsel told Daughtery he must say that he was satisfied with the deal offered him and that he had not been promised anything in return for accepting the plea otherwise the judge would reject the plea.

¶ 14. Daughtery does not claim the medications clouded his judgment or ability to enter a voluntary guilty plea, only that counsel urged him not to admit to the medication or recent counseling. Taking as true Daughtery’s statements as well as those contained in the supporting affidavit, Daughtery may be able to meet the first prong of the Strickland test but fails to demonstrate the second. He provides no evidence that, but for this possibly false statement to the court, the proceedings would have ended differently. If Daugh-tery was competent at the time of the hearing, the trial court would have had no reason to reject the plea because of medication. At the hearing, after the defendant stated that he was no longer taking medication, the trial judge asked additional questions about his mental condition that are not attacked as having been false. He described one of the medications that he had been taking. It was medication for anxiety. He informed the trial judge that he had not recently had any anxiety attacks, which is not disputed in this present appeal. The post-conviction affidavit also alleges that he was taking Prozac, which is taken for depression, and that was not mentioned at the plea hearing as being a former medication.

¶ 15. There is no evidence from the plea transcript, the post-conviction affidavit, nor the psychiatric examination, that Daughtery was, because of his allegedly continuing use of anti-anxiety and anti-depression medication, unable to make an intelligent, knowing, and voluntary plea. If anything, the medication and counseling would have — if the post-conviction affidavit is accurate — only benefitted Daughtery’s mental state. We find no basis to believe that the trial court would have rejected the plea had the medication and counseling been admitted. The issue was Daugh-tery’s then-current competence. The alleged falsehoods did not affect that determination.

¶ 16. Similarly, Daughtery cannot show prejudice from his argument that counsel advised him that he could not be convicted of a lesser charge than capital murder if he went to trial. A lesser-included offense instruction is not to be given when, taking the evidence in the light most favorable to the defendant, no reasonable juror could find the defendant guilty of a lesser-ineluded offense. Ballenger v. State, 667 So.2d 1242, 1265 (Miss.1995).

¶ 17. The record reveals no facts that would have likely been a basis for a lesser-ineluded offense instruction. Daughtery has never denied that he planned and began the execution of a home robbery, or that the homeowner, an elderly man, was found strangled with an electrical cord. While claiming no memory of events following his arrival at the home of the victim, Daughtery does not deny that he was found in possession of property and cash belonging to the victim. The State was also prepared to offer the statement of another man who would testify that Daughtery called him after the robbery and offered cash in return for assistance in disposing of the body. We cannot find that had his counsel given the advice that is now asserted it would have been an unreasonable and constitutionally infirm analysis of the prospects that Daughtery would face at trial.

¶ 18. The final claim under this assignment of error is that counsel told Daughtery he would be eligible for conditional release parole at age sixty-five, that this advice was wrong and because he relied upon this representation in accepting the plea bargain, Daughtery was prejudiced by counsel’s incorrect advice. Daughtery asserts that he was unaware he would not be eligible for parole ever until after arriving at prison and had he known earlier, he would not have accepted the plea at all.

¶ 19. The plea petition that Daughtery signed prior to the plea hearing stated that the sentence the State would recommend was life without parole. The trial court told Daughtery that he would be sentenced to life without parole, and the defendant stated that he understood that fact. The post-conviction affidavit from Daughtery’s mother and sister-in-law states that counsel told Daughtery that he would get a sentence of life without parole. We find that these sworn statements cannot be overcome by Daughtery’s post-conviction assertions of what his counsel allegedly told him.

¶ 20. We also note that the claim is not that his counsel promised the accused would be eligible for parole when he reached the age of sixty-five. He alleges counsel advised him that “according to the new law effective July 1,1995, he would be able to petition the sentencing court at age sixty-five for a conditional release, and not to look that far off because the law was surely to change being that the prison system was way overcrowded.”

¶ 21. Finally, even had these statements been made, any misconception was later corrected by the trial court. Where the court correctly explains the potential penalty at a plea hearing, any harm resulting from prior erroneous advice is ameliorated and the error can no longer afford the petitioner post-conviction relief. Roland v. State, 666 So.2d 747, 750 (Miss.1995).

3. Sentence imposed without jury im-panelment

¶ 22. Daughtery next claims that his sentence is invalid because the court exceeded its authority. A statute provides for impanelment of a jury to pass sentence upon a defendant when the possible punishments are death, life imprisonment or life imprisonment without parole. Miss. Code Ann. § 99-19-101(1) (Rev.2000).

¶ 23. Daughtery’s sentence was life imprisonment. He was ineligible for parole. Miss.Code Ann. § 47-7-3(l)(f) (Rev.2000). Only a jury may impose a death penalty. Edwards v. State, 737 So.2d 275, 290 (Miss.1999). By entering a guilty plea to a charge of capital murder, the only sentence Daughtery could receive from the judge was life without possibility of parole. It is appropriate for the trial court to impose the only possible sentence without impaneling a jury for the sake of procedural form. Pham v. State, 716 So.2d 1100, 1104 (Miss.1998).

A Admission of guilty

¶24. Finally, Daughtery argues the trial court was without authority to impose sentence on him because he did not admit to any guilt. A statute provides that a person indicted for a criminal offense shall not be convicted unless by confession of his guilt in open court or by admitting the truth of the charge against him by his plea. Miss.Code Ann. § 99-19-3 (Rev.2000).

¶ 25. At Daughtery’s plea hearing, the prosecutor gave a detailed summary of what the State could prove. It covered all the elements of the charged offense. The trial judge stated that he was going to ask Daughtery whether he “wished to enter a plea of guilty to those facts [that the prosecutor] has stipulated into the record?” Before an answer was given, defense counsel interrupted the judge and asked to approach the bench. The judge agreed for him to do that, but it is not clear from the transcript whether any conference occurred. The next matter in the transcript is the judge’s asking Daughtery how he ■wished to plead to the charge of capital murder. The answer was “Guilty.” We find that this was an admission of the truth of the charge made against him, the facts of which had just been summarized by the prosecutor. That was sufficient.

¶ 26. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT DENYING THE PETITION FOR POST-CONVTCTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER and GRIFFIS, JJ., CONCUR.