author: CHANDLER, J., SOUTHWICK, P.J.,

text:
    Melinda Jo CLARK, Individually and Melinda Jo Clark as Next Friend and Mother of Kayla Logan Clark and Alora Morgan Clark, Appellants, v. Joseph L. CLARK and B & B Concrete, Inc., Appellees.
    No. 2002-CA-01454-COA.
    Court of Appeals of Mississippi.
    Jan. 20, 2004.

      Will R. Ford, New Albany, attorney for appellants.
    Franklin Williams, attorney for appel-lees.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. On October 1, 1999, Melinda Clark and her daughters, Kayla and Morgan Clark, were traveling east on Highway 4 in Ripley, Mississippi. As they approached the intersection of Highway 4 and Line Street, a ear being driven by Joseph Clark pulled out in front of them and an accident occurred. Melinda Clark filed a negligence suit against Joseph and his employer B & B Concrete, Inc. in the Tippah County Circuit Court. A jury verdict was returned in favor of the defendants. Feeling aggrieved with the verdict, Clark appeals and cites the following errors:

I. THE TRIAL COURT ERRED IN DENYING PLAINTIFF’S MOTION FOR DIRECTED VERDICT AS TO THE ISSUE OF NEGLIGENCE.

II. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS’ INSTRUCTION D-2 AND D-4.

¶ 2. Finding that the trial court reached the correct decision regarding these issues, we affirm.

FACTS

¶ 3. On October 1, 1999, Melinda Clark (Melinda) and her children Morgan and Kayla Clark, were traveling East on Highway 4 and were involved in a collision with a B & B, Inc. mixer truck which was being driven by Joseph Clark (Jody). The accident occurred at the intersection of Highway 4 and Line Street in Ripley, Mississippi. The traffic on Line Street is controlled by opposing stop signs. Jody was going north on Line Street and attempting to cross Highway 4 when the accident occurred.

¶ 4. Traffic was heavy on the morning of the accident. According to Jody’s testimony, he pulled up to the intersection of Line Street and Highway 4 and checked for oncoming traffic. Jody allowed a couple of cars to pass. However, his vision was blocked to the left, or west, by overgrown bushes, shrubs and trees. In order to get a better view of oncoming traffic, he cautiously eased .the mixer truck forward about a foot just as Melinda was passing through the intersection. The impact between the two vehicles occurred along the front of the mixer truck and the right side of Melinda’s car. Melinda’s car was hurled into an iron post supporting the porch of a store located at the intersection.

¶ 5. Jody claims that he did not see Melinda’s car approaching the intersection prior to the accident. Melinda testified that she could not see the mixer truck sitting at the stop sign because it was hidden behind overgrowth that was situated around the intersection.

¶ 6. Brenda White witnessed the accident from the opposite side of Highway 4. She was headed south on Line Street, and from her view she could see Jody stopped at the opposing stop sign waiting for traffic to subside. "White acknowledged Jody’s presence by waving at him. "White testified that Jody came to a full stop and then slowly eased his truck onto the highway in an effort to see past the overgrown bushes. The front bumper of Jody’s truck was positioned just past the overgrown bushes when the accident occurred. White testified that Line Street was narrow and that its intersection at Highway 4 is very dangerous.

¶ 7. Melinda was traveling east on Highway 4 at the time of the accident. The posted speed limit on Highway 4, at this location, is thirty-five miles per hour. Melinda testified that she was not speeding and that she did not slow her car down as she approached the intersection.

¶ 8. On June 28, 2000, suit was filed in Tippah County Circuit Court, and the case was tried on February 5, 2002. During the consideration of jury instructions, the defendants offered contributory and comparative negligence jury instructions based on case law which holds that Melinda had a duty to slow the speed of her automobile when approaching an intersection. The trial court granted the jury instructions over the objections of the plaintiffs.

¶ 9. The plaintiffs moved for a directed verdict on the issue of negligence at the close of the evidence. The trial court denied the motion. The jury returned a verdict for Jody and B & B Concrete, Inc. Melinda’s motion for a JNOV or, in the alternative, a new trial was denied by the trial court.

I. DID THE TRIAL COURT ERR IN DENYING THE PLAINTIFF’S MOTION FOR DIRECTED VERDICT AS TO THE ISSUE OF NEGLIGENCE?

¶ 10. On appeal, “the standard of review for denial of a judgment notwithstanding the verdict and a directed verdict are identical.” Am. Fire Prot., Inc. v. Lewis, 653 So.2d 1387, 1390 (Miss.1995). See Sperry-New Holland v. Prestage, 617 So.2d 248, 252 (Miss.1993). "Whether to grant a directed verdict is a decision of law. Fox v. Smith, 594 So.2d 596, 603 (Miss.1992). Mississippi Rule of Civil Procedure 50 provides:

A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted without having reserved the right to do so and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds thereof. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.

¶ 11. Melinda argues the evidence clearly establishes the negligence of Jody because he violated Mississippi Code Annotated Section 63-3-805, by willfully entering Highway 4 from the Line Street intersection at a time when Melinda’s automobile constituted an immediate hazard. She argues the trial court committed error when it failed to grant her motion for a directed verdict on the issue of Jody’s negligence. Jody asserts the trial court was correct in denying Melinda’s motion for a directed verdict because she was in violation of Mississippi Code Annotated Section 63-3-505, when the accident occurred.

¶ 12. It is therefore necessary for the Court to turn its attention to the applicable traffic laws. Mississippi Code Annotated Section 63-3-805 (Supp.2003), provides, in its entirety:

The driver of a vehicle shall stop as required by this chapter at the entrance to a through highway and shall yield the right-of-way to other vehicles which have entered the intersection from said through highway as to constitute an immediate hazard. However, said driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on said through highway shall yield the right-of-way to the vehicle so proceedings into or across the through highway. The driver of a vehicle shall likewise stop in obedience to a stop sign as required by this chapter at an intersection where a stop sign is erected at one or more entrances thereto although not a part of a through highway and shall proceed cautiously, yielding to vehicles not so obliged to stop which are within the intersection or approaching so closely as to constitute an immediate hazard, but may then proceed.

Mississippi Code Annotated Section 63-3-505 (Supp.2003), addresses the duty of a driver to reduce the speed of an automobile and it provides:

The driver or operator of any motor vehicle must decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic. All trucks, or truck-trailer combinations and passenger buses shall be required to reduce speed to forty-five miles per hour during inclement weather when visibility is bad.

¶ 13. The evidence presented at trial showed Melinda traveling east on Highway 4 when the accident occurred. Highway 4 is a through highway with no traffic control devices at the Line Street intersection. Line Street, upon which Jody was traveling due north, is not a through highway. It has stop signs posted at the entrance points to Highway 4.

¶ 14. Melinda contends that she was traveling the posted speed limit of thirty-five miles per hour when the accident occurred. However, she does admit that she did not decrease the speed of her automobile as she approached the Line Street intersection. Jody testified to pulling his mixer truck up to the stop sign on Line Street where he observed the heavy flow of traffic on Highway 4. Due to the overgrowth at the intersection, Jody’s view was obstructed to the west on Highway 4. In order to get a better view of oncoming traffic, Jody cautiously eased the mixer truck into Highway 4 and the accident occurred.

¶ 15. Brenda White witnessed the accident and. corroborated Jody’s version of how the accident occurred. White testified that the intersection of Line Street and Highway 4 is dangerous. Prior to the accident, White and Jody were stopped in their automobiles and facing each other at the opposing signs on Line Street. White stated that Jody’s truck slowly moved forward approximately one foot passed the stop sign into Highway 4.

¶ 16. Melinda testified that she could not see Jody’s mixer truck as she approached the intersection due to overgrowth. Jody testified that he did not see Melinda’s car as he moved his mixer truck into the highway. Both drivers were familiar with the intersection.

¶ 17. Applying the law as set forth in section 63-3-805, Jody was required to obey the stop sign on Line Street and then proceed onto the Highway 4 intersection only after yielding to automobiles that are approaching close enough to be considered an “immediate hazard.” Melinda was required under Section 63-3-505 to decrease the speed of her vehicle when she approached the Line Street intersection.

¶ 18. Melinda directs the Court’s attention to the holdings in McKinzie v. Coon, 656 So.2d 134 (Miss.1995) and Vines v. Windham, 606 So.2d 128 (Miss.1992). In McKinzie, the court reversed and rendered a jury verdict for the defendant on the issue of negligence after a turning driver admitted to entering a through highway and causing an accident. McKinzie, 656 So.2d at 142. Witnesses testified that the driver was not paying attention when he pulled out of the intersection into the highway. Id. at 136. In Vines, the supreme court reversed a jury verdict that found both parties negligent in a car accident where the defendant had an unobstructed view of oncoming traffic but pulled out in front of the plaintiff after another motorist on the highway made a hand signal for the defendant to cross over. Vines, 606 So.2d at 129.

¶ 19. Jody argues that Melinda had a duty to slow her automobile down when she approached the Line Street intersection. In Greyhound Lines, Inc. v. Sutton 765 So.2d 1269, 1273 (¶ 10) (Miss.2000), the court addressed the duty of a driver to decrease the speed of her automobile at an intersection. In Sutton, the driver ran a stop sign at an intersection and collided with a bus. Id. at 1271. Although the driver ran the stop sign, the supreme court found negligence on behalf of the bus driver due to his failure to slow his speed at the intersection. Id. The negligence of the driver who ran the stop sign was never in dispute. Id. The duty to decrease one’s speed at an intersection is based on the standard delineated in Jobron v. Whatley, 250 Miss. 792, 804, 168 So.2d 279, 284 (1964), which states:

Insofar as the appellee’s having the right of way, or the right to assume that the driver of the other car would stop his car before entering the intersection, is concerned, this Court has repeatedly stated what the rule is, namely: That the motorist’s right to assume that the driver of a vehicle proceeding toward an intersection will obey the law of the road, which requires him to stop before entering the intersection, exists only until he knows or in the exercise of ordinary care should know otherwise.

¶ 20. Jobron involved a car that ran a stop sign and hit another car that had the right of way. Id. at 795, 168 So.2d 279. The passenger in the car that was hit filed suit against the driver who ran the stop sign and the driver who failed to keep a proper lookout. Id. The court held that “[cjertainly it would be a question for the jury to determine, whether or not the ap-pellee was guilty of negligence in failing to use her brakes and slow her vehicle down so that, when it appeared Dr. White was not going to obey the stop sign and bring his vehicle to a stop, she would have had her vehicle under control and would have been able to avoid the collision.” Id. at 800, 168 So.2d 279. See also Richardson v. Adams, 223 So.2d 536 (Miss.1969) (whether person was negligent in her failure to further reduce speed when approaching an intersection was a question of fact for the jury); Shaw v. Phillips, 193 So.2d 717 (Miss.1967) (whether motorist approaching intersection was guilty of negligence which proximately caused or contributed to the accident was for the jury).

¶ 21. The cases cited by Melinda are factually distinguishable from the case sub judice. The drivers in McKinzie and Vines did not have obstructed views of oncoming traffic. Instead, each driver had a clear view of oncoming traffic but still chose to pull into the intersection causing a wreck. The negligence of each driver entering the through highway was never in dispute.

¶ 22. In this case, whether the actions of Jody at the intersection could be considered negligent was a question for the jury to decide. In Jones v. United States Fidelity and Guaranty Company, 822 So.2d 946, 948 (Miss.2002), the court wrote that “the violation of a statute demonstrates a duty and breach thereof, but not proximate cause of injury which is a question still left for the jury to answer. We therefore conclude that the requested instruction which would have directed a verdict in Jones’s favor was properly denied.” See also Richardson v. Adams, 223 So.2d 536 (Miss.1969).

¶23. The Court finds that Melinda’s assignment of error is without merit. It is undisputed that both Melinda and Jody violated the applicable traffic laws on the day of the accident. Melinda failed to keep a proper look out as she approached the intersection. A reasonable person would recognize the need to slow her vehicle as she approached the intersection. Jody proceeded cautiously as he entered the through highway but was unable to avoid an accident. The negligence and reasonableness of Jody’s actions was a question for the jury.

II. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS’ INSTRUCTION D-2 AND D-4.

¶ 24. When granting or refusing various jury instructions the court reads all instructions given as a whole. If the instructions fairly announce the law and no injustice is created then no reversible error will be found. Coleman v. State, 697 So.2d 777, 782 (Miss.1997); Collins v. State, 691 So.2d 918, 922 (Miss.1997). When the jury instructions do not fairly or adequately instruct the jury, we will reverse. Burton by Bradford v. Barnett, 615 So.2d 580, 583 (Miss.1993). The standard of review for considering the grant or denial of jury instructions are set forth in Hill v. Dunaway, 487 So.2d 807, 809 (Miss.1986):

By analogy to our familiar test as to when any fact question may be taken from the jury, our rule is this: The refusal of a timely requested and correctly phrased jury instruction on a genuine issue of material fact is proper, only if the trial court — and this Court on appeal — can say, taking the evidence in the light most favorable to the party requesting the instruction, and considering all reasonable favorable inferences which may be drawn from the evidence in favor of the requesting party, that no hypothetical, reasonable jury could find the facts in accordance with the theory of the requested instruction.

Id. See also Church v. Massey, 697 So.2d 407, 410 (Miss.1997)

¶ 25. Melinda’s second assignment of error concerns Jury Instructions D2 and D4. Instruction D2 states:

You are instructed that the driver of a motor vehicle must decrease the speed of her vehicle when approaching and crossing an intersection. Therefore, if you find from a preponderance of the evidence that Melinda Jo Clark failed to decrease the speed of her vehicle upon approaching the intersection of Highway 4 (Ashland road) and South Line Street, then you may find that Melinda Jo Clark’s failure to reduce her speed under those circumstances was negligent, and that such negligence caused or contributed to the accident, and you may reduce any damages awarded to the plaintiff Melinda Jo Clark consistent with other instructions given you.

¶ 26. Jury Instruction D4, requested by Jody, states:

If you find from a preponderance of the evidence in this case that:
1.Jody Clark, defendant, was negligent, and
2 Melinda Jo Clark was negligent, and
3. the negligence of both two drivers were proximate contributing causes of the accident in this case, and
4. the plaintiffs sustained injuries and damages caused by the combined negligence of Melinda Jo Clark and Jody Clark, then you will, in arriving at your verdict, first determine that sum of money, if any, which will fairly and adequate compensate plaintiffs for said injuries and damages, if any, and then you are to reduce this sum in proportion to the casual negligence of Melinda Jo Clark, using the following method:
1. determine the proportion that Melinda Jo Clark’s casual negligence bears to the casual negligence as a whole, as a part or percentage of 100% (100% = total casual negligence of both actors in case).
2. multiply the sum of money you determined as plaintiff’s damages by the percentage figure representing the proportion of Melinda Jo Clark’s casual negligence;
3. then subtract the result of your multiplication from the sum you first determined to plaintiffs’ damages; and
4. return a verdict for plaintiffs.

¶27. Melinda argues that Instructions D2 and D4 were improperly submitted to the jury because there was no evidence that she was negligent in any manner. She believes the jury was misled and the verdict should be set aside and a new trial granted solely on the issue of damages. Jody argues the jury instructions were proper because Melinda violated Section 63-3-505 which required her to slow when approaching an intersection.

¶ 28. We find that the issue of whether Melinda was negligent in her failure to decrease the speed of her automobile as she approached the intersection was for the jury to determine. Jody asserted that there was ample evidence to determine that he did not enter the Highway 4 intersection when it was unreasonable to do so. The jury was presented with both parties’ version of events. The jury chose to believe Jody’s version. The jury could properly decide that Jody was not negligent when he pulled his truck onto the highway to look for oncoming traffic. The facts of this particular case required the jury to make a determination on the degree of negligence that should be attributed to each party. There was undisputed evidence that Jody’s view of oncoming traffic was obstructed by overgrowth. Likewise, Melinda admitted the overgrowth diminished her view, but that she did not slow her vehicle as she approached the intersection. It was within the realm of the jury to determine whether Melinda was negligent in her failure to slow the automobile. Therefore, the assignment of error is without merit.

¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF TIPPAH COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, AND MYERS, JJ., CONCUR. SOUTHWICK, P.J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY McMILLIN, C.J., IRVING AND GRIFFIS, JJ.

SOUTHWICK, P.J.,

concurring:

¶ 30. I write separately due to the continuing distortions caused by an antiquated statute on the duty of a driver on a through road. That statute requires a driver to slow at every intersection. Whether applied to substantial intercity roads or smaller city streets, such a rule has little relevance to present day driving conditions. The rule was created in 1938. Using almost the same language as in the original, the present statute requires the following:

The driver or operator of any motor vehicle must decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding road, or when a special hazard exists with respect to pedestrians or other traffic.

Miss.Code Ann. § 63-3-505 (Rev.1996). An instruction was given the jury in this case that was based on the statute. The issue of negligence in intersection collisions should not be affected by an unrealistic and unreasonable statutory standard such as this.

¶ 31. The Supreme Court has within the limits of the statute attempted to inject some reality by holding that a person on a through road is “entitled to assume that crossing traffic will obey stop signs, look for oncoming vehicles” and otherwise yield. Vines v. Windham, 606 So.2d 128, 131 (Miss.1992). A different statute provides that once a person has stopped, he may enter onto the through street unless an approaching vehicle is so close as “to constitute an immediate hazard.” Miss.Code Ann. § 63-3-805, quoted in McKinzie v. Coon, 656 So.2d 134, 138 (Miss.1995). After making a reasonable entry onto the through road, the driver from the side road gains the “right-of-way” even though initially that driver had to stop.

¶ 32. All of these rules must work together. They mean that someone on a through street is not exempt from normal operation of negligence principles. Being on the through road does not permit a driver to maintain a constant speed and smash into anyone who gets into his way who comes from a side street. However, what is not needed is a rule independent of reasonable care that requires the person on the through street to slow at all intersections. Since few if any drivers slow at every intersection nor does there appear a sound basis for doing so, this creates an artificial standard that skews fact-finding.

¶ 33. What the statute was intending to accomplish is clearer when viewing the original enactment. The statutory language under which we are now measuring negligence is the second-generation approach to speed restrictions. The first statute was referred to in one contemporary precedent as the “motor car speed statute.” Lucedale Automobile Co. v. Daughdrill, 154 Miss. 707, 711, 123 So. 871, 872 (1929). That label helps date it. It set a variety of speed restrictions, including this:

No person shall operate a motor vehicle on a public highway ... at a greater rate of speed than is reasonable and proper, having due regard to the traffic and use of the highway, or so as to endanger the life or limb of any person or the safety of any property, or in any event on any public highway where the territory contiguous thereto is closely built up, at a greater rate of speed than fifteen miles per hour, or elsewhere in any incorporated city, town or village at a greater rate of speed than fifteen miles per hour, or elsewhere outside of any incorporated city, town or village at a greater rate of speed than thirty miles per hour, subject, however, to the other provisions of this act.

1916 Miss. Laws, ch. 116, § 2 (codified at Hemingway’s Code 1927, § 6680). A provision that later evolved into the special hazard rule applicable here, stated that when “approaching a bridge, levee, sharp curve or steep descent, and also in traversing such bridge, levee, curve or descent, a person” shall not drive more than ten miles per hour, “and upon approaching a crossing of intersecting highways at a speed not greater than reasonable and proper, having due regard to the traffic then on such highway and the safety of the public.” 1916 Miss. Laws, ch. 116 (codified at Hemingway’s Code 1927, § 6682).

¶ 34. Sandwiched between these two sections and giving an instructive historical context for the provision from which the statute to be applied here soon evolved, was a rule that no motor vehicle “shall pass a person driving a horse or horses or other domestic animals, [or pedestrians], at a greater rate of speed than eight miles per hour....” 1916 Miss. Laws, ch. 116 (codified at Hemingway’s Code 1927, § 6681).

¶ 35. The next generation of speed and safety statutes contained the language that is still being applied to accidents such as occurred here. It was one section of a lengthy set of measures adopted in 1938 called the “Uniform Highway Traffic Regulation Act”:

(a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing.
(b) Where no special hazard exists the following speeds shall be lawful but any speed in excess of said limits shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful:
1. Twenty miles per hour in any business district;
2. Twenty-five miles per hour in any resident district;
3. Fifty-five miles per hour under other conditions.
Provided however, the speed limit of trucks shall be forty miles per hour.
(c) The fact that the speed of the vehicle is lower than the foregoing prima facie limits shall not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazards exist with respect to pedestrians or other traffic. ...

1938 Miss. Laws ch. 200, § 51 (emphasis added). As can be seen, the current language regarding slowing at intersections and while cresting hills and along winding roads all began in 1938.

¶ 36. It is important to understand the condition of state highways when the 1938 slow-at-every-intersection rule was created. Mississippi then had about 6,200 miles in the state highway system: fewer than 3,500 miles were paved, 2,400 miles were gravel, and 350 miles were dirt. Mississippi State Highway DepaRtment, Mississippi Highway Facts 13-14 (1942). Only an additional 320 miles of paved roads were maintained by counties, while 52,000 miles of gravel or dirt county roads existed; only 1,000 miles of federal highways were in the state. Id. at 13 & 16-17. Traveling these roads were 230,000 in-state vehicles. Id. at 23. The pavement was intermittent, as the first highway to be paved completely across the state had been open for less than a year. James B. Gibson, Huge Celebration Marks Formal Dedication for First Allr-Paved Highway, Daily Clarion-LedgeR (Jackson, Miss.), April 8, 1937, at 1, 8. At the dedication of that highway, a speaker called on the 1938 legislature to enact “uniform safety legislation to govern traffic on the newly paved roads.” Id. It is that long-ago legislature’s response that largely still governs today.

¶ 37. In addition, it would appear that a statewide, systematic program of erecting stop signs and other warning devices also began or at least was accelerated with the 1938 Act.1938 Miss. Laws ch. 200, §§ 28-35. That suggests that many intersections were unmarked with any traffic control signs, which would make understandable that every vehicle should slow at every intersection. If no one has to stop, then everyone should at least slow down.

¶ 38. Equally revealing about road conditions is that two years before the 1938 statute, the governor said that his “sole desire [regarding roads] is to see that we are gotten out of the mud, dust and gravel as quickly as possible.” Corey T. Lessig, “Out of the Mud”: The Good Roads Crusade ..., LX J. Miss. Hist. 50, 70 (1998). By 1998, Mississippi drivers were off the dirt and gravel with paved roads totaling almost 50,000 miles, not the 4,000 of 1938. Mississippi Department of Transportation, Mississippi Publio Roads: Selected StatistiCS iv-v (1998). Over 2,000,000 state-licensed vehicles used these roads, almost a ten-fold increase. Mississippi Statistical AbstraCt 365 (1997). Quite obviously the nature of highway travel in the state has changed radically and all the various parts of former absolute rules to slow for horses, hill crests, and highway crossings have become obsolete.

¶ 39. The supreme court has given some attention to the impracticalities of the rule but is still bound by the statutory language:

In order to be in violation of the statute one must fail to reduce his speed from the maximum provided when one of the conditions set out in [1942 Miss.Code § 8176(b) for slowing at intersections, curves, and hill crests] is present. In this case, Mrs. Adams was traveling at a speed less than the maximum as she approached the intersection and whether her failure to further reduce her speed under the prevailing circumstances was negligence was a question of fact for the jury to determine.

Richardson v. Adams, 223 So.2d 536, 538 (Miss.1969). The defendant in Adams was going 50-55 miles per hour, which was less than the maximum of 60. Therefore the failure to slow even more was at most a jury question regarding negligence. Whenever there is some evidence to support that a driver was going the maximum speed or more, the statutory duty to slow is invoked.

¶ 40. In the present case, even if this statute did not exist, a jury instruction would have been proper that asked whether Melinda Clark acted as a reasonably prudent driver as she approached the intersection at which this collision occurred. In the circumstances, which included considerable traffic on the road that she was traveling as well as on cross-streets, with an observable line of cars at the intersection trying to cross, and even with her potential knowledge of the obstructed view that was the reason that drivers eased slightly out into the east bound lane, prudence and non-negligence may well have required her to slow down, move in her lane away from traffic entering onto the through road, and otherwise become defensive in her driving. Instead, she may have blithely moved ahead at the speed limit and even stayed towards the right side of the lane where the concrete truck was slowly coming onto the through road. Jurors were entitled to conclude that Joseph Clark was not negligent in moving slightly into the right of way as he must in order to see, and that he could rely on the fact that any reasonable driver approaching as was Melinda Clark would see him and make the slight adjustment in travel that was required to avoid hitting him.

¶ 41. I find no error in the jury’s conclusion that Melinda Clark caused the accident and Joseph Clark was without fault. The statute on slowing at every intersection is unnecessary to that conclusion, since the condition of this intersection required such caution. This obsolete statute fully served its purpose long ago and should legislatively be repealed because the usual negligence rules already focus on the requirement of reasonable care in driving. In most circumstances slowing at every intersection would not be part of the standard of care and should not be made so by statute. Something besides the mere existence of an intersection should be needed before the duty to slow is invoked. Something more than mere existence was involved in these facts.

¶ 42. The present rule can cause a finding of negligence when it does not exist and for blame to be shifted from where it belongs. No distortion occurred this time, however.

McMILLIN, C.J., IRVING AND GRIFFIS, JJ., JOIN THIS SEPARATE WRITTEN OPINION.

      . These views appeared in Greyhound Lines, Inc. v. Sutton, 753 So.2d 1105, 1120, 1124-25 (¶¶ 61-66) (Miss.Ct.App.1999) (Southwick, P.J., concurring; opinions withdrawn upon granting of writ of certiorari); aff d in part, rev'd in part, 765 So.2d 1269 (Miss.2000). Omitted here is the discussion of the improper bringing of a personal injury action in chancery court even when no objection is raised. 753 So.2d at 1120-1123, ¶¶ 45-56.


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    FAVRE PROPERTY MANAGEMENT, LLC, Appellant, v. CINQUE BAMBINI, a Mississippi Partnership, Appellee. Cinque Bambini, a Mississippi Partnership, Appellant v. Favre Property Management, LLC, Appellee.
    Nos. 2002-CA-00395-COA, 2002-CA-01092-COA.
    Court of Appeals of Mississippi.
    Jan. 20, 2004.

      William Carl Miller, Biloxi, attorney for appellant.
    Harry R. Allen, David W. Crane, Gulf-port, attorneys for appellee.
    Before McMILLIN, C.J., IRVING, and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Favre Property Management, LLC filed a complaint against Cinque Bambini, a Mississippi Partnership, alleging breach of a contract to purchase land. The Circuit Court of Hancock County dismissed the complaint for failure to state a claim upon which relief can be granted, and Favre appeals. Cinque Bambini appeals from the circuit court’s denial of its motion for sanctions pursuant to Mississippi Rule of Civil Procedure 11. We find that Favre’s complaint was sufficient to withstand dismissal, and therefore, reverse and remand for further proceedings. As we find that Favre’s complaint stated a claim, we affirm the trial court’s refusal to sanction Favre for a frivolous pleading.

FACTS AND PROCEDURAL HISTORY

¶ 2. Favre’s complaint alleged that Favre was the assignee of a contract to purchase a parcel of land from Cinque Bambini. The assignor of the contract was RMC, LLC. Favre attached several documents to the complaint, including a copy of the assignment and a copy of the contract, styled “Purchase Agreement.”

¶ 3. Following are the relevant provisions of the contract. The contract identified Cinque Bambini as the seller and RMC as the buyer. The contract described the subject property as “the real property of the Seller located south of Crump Road in Hancock County, Mississippi.” The purchase price was $27,000,000, payable in a series of four deposits with the balance to be paid upon closing. Specifically, the contract required the buyer to pay deposits of $25,000 on execution of the contract, $150,000 on the sixty-first day following the effective date, $200,000 on the 151st day following the effective date, and $300,000 on the 271st day following the effective date. If the buyer failed to timely make any payment, or if the closing did not occur within one year of the effective date of the contract, the buyer would have no further rights regarding the subject property, and Cin-que Bambini would retain all amounts previously paid by the buyer. Cinque Bambi-ni was to retain possession of the subject property until the closing, but the buyer could make physical inspections. The contract provided that time was of the essence.

¶ 4. The buyer was to deliver a survey of the subject property to Cinque Bambini and the title company within sixty days of the effective date of the contract. If the buyer made the second deposit payment of $150,000, Cinque Bambini was to reimburse the buyer for one-half the cost of the survey up to $20,000. If the buyer so elected, the buyer could forego obtaining a survey so long as Cinque Bambini agreed to the description of the subject property used in the deed. The contract gave the buyer an option to purchase additional acreage for $9,000 per acre if the survey revealed that the subject property contained less than 2,850 acres. The buyer could exercise the option by notifying Cin-que Bambini prior to the closing of its intention to purchase the additional acreage.

¶ 5. The contract forbade Cinque Bambi-ni from executing “any lease, license or other agreement affecting the ownership or operation of the Premises” without the buyer’s prior written approval, and from amending any existing contract or entering into any new contract “with respect to the ownership and operation of the Premises” that would survive the closing or otherwise “affect the Buyer’s use, operation or enjoyment of the Premises, without Buyer’s pri- or written consent.” The contract entitled Cinque Bambini to remove timber from the subject property for proper maintenance of the subject property “without Buyer’s prior consent; provided that such removal does not adversely affect the value of the Land and is consistent with [Cinque Bambini’s] historical practices.” The contract also contained a “reasonable efforts” clause, stating that “[Cinque Bam-bini] and Buyer shall use their reasonable, commercial efforts and shall cooperate with and assist each other in their efforts to obtain such consents and approvals of third parties (including, but not limited to, governmental authorities) as may be required to consummate the transaction contemplated hereby, and shall otherwise perform as may be necessary to effectuate a transfer of the Premises to Buyer in accordance with this Agreement.”

¶ 6. On December 11, 2000, RMC assigned its right, title and interest in the contract to Favre. The assignment stated that Favre, the assignee, had paid $175,000 to Cinque Bambini, as well as paid overhead and engineering costs sustained in effecting the purchase of the subject property. The assignment stated that Favre would assign one half of its interest in the contract back to RMC upon RMC’s repayment of all the money advanced by Favre.

¶ 7. In the complaint, Favre alleged that, though Favre had timely paid $175,000 in earnest money due under the contract, Cinque Bambini had continually refused to provide Favre with a legal description of the property. Favre stated that the legal description was “necessary to complete the title work.” Favre stated that, on December 27, 2000, Cinque Bambini demanded $200,000 “as an additional deposit” before it would perform its contractual obligations. Favre accused Cinque Bambini of misrepresenting the acreage amount and of failing to perform a subsequent oral agreement that Cinque Bambini would provide the survey instead of Favre.

¶ 8. Favre further alleged that, prior to Cinque Bambini’s demand for the $200,000, Cinque Bambini “cut and removed timber from the property, entered into contracts for billboards and/or telephone towers and began negotiations for the sale of the property with third parties” without Favre’s permission and in violation of the contract. Favre referenced a subsequent written proposal by Cinque Bambini. The proposal was attached to the complaint, and provided that Cinque Bambini’s timber harvesting and telephone tower leases did not breach the original contract. The complaint indicates that Favre never agreed to Cinque Bambini’s proposal. The complaint alleged that Cinque Bambini failed to negotiate in good faith and intentionally breached the contract, and requested specific performance, as well as actual and punitive damages.

¶ 9. Cinque Bambini moved for dismissal for failure to state a claim and for sanctions. As the contract did not state its effective date, Cinque Bambini attached to the motion an affidavit of its general partner averring that the effective date of the contract was July 28, 2000, and a copy of a letter to that effect. In its motion, Cinque Bambini stated that Favre paid $175,000 in earnest money, but failed to make the $200,000 payment due on the 151st day following the effective date of the contract. Cinque Bambini contended that it had no duty to provide a survey because the contract placed the duty to obtain a survey upon Favre. Cinque Bambini contended that any oral agreement otherwise was barred by the statute of frauds and by the parol evidence rule. Cinque Bambini averred that, because Favre failed to make the $200,000 scheduled earnest money payment, by the terms of the contract, Favre had no standing to maintain an action for breach.

¶ 10. Favre’s response to the motion to dismiss reiterated its arguments, but also introduced new information supported by attached affidavits. Favre stated that the reason it needed a legal description was that the survey was impossible to perform without one. In an attached affidavit, the surveyor stated that he “expended numerous weeks attempting to complete a survey without benefit of a legal description,” and that a legal description was necessary to finish the survey. Favre stated that Cin-que Bambini had the legal description in its possession, and, after January 1, 2000, had given a copy of it to an attorney with instructions not to distribute it without permission. An affidavit of the attorney to that effect was attached. In another affidavit, the manager of RMC averred that he made numerous requests for a legal description, which were refused by Cinque Bambini. Favre stated that it declined to make the $200,000 scheduled earnest money payment because Cinque Bambini had breached the contract. Favre claimed that Cinque Bambini’s refusal to give Favre the legal description breached its contractual duty to make reasonable efforts to effectuate the transfer of the property and violated the implied covenant of good faith and fair dealing.

¶ 11. At a hearing on the motion, Favre stated that it needed the survey in order to decide whether to exercise its option to purchase additional acreage. Favre averred that it could not procure the necessary legal description from courthouse records because of gaps in the chain of title. Cinque Bambini argued that, because the contract placed the duty to obtain a survey upon Favre, Cinque Bambini had no duty to facilitate the surveying process by providing the legal description. Cinque Bambini moved to strike Favre’s affidavits because they constituted matters outside the pleadings.

¶ 12. On February 27, 2002, the trial court entered a corrected order dismissing Favre’s complaint under Mississippi Rule of Civil Procedure 12(b)(6). The court held that the legal description provided in the contract was a sufficient legal description to convey title to the subject property. The court found that Cinque Bambini had no duty to provide a survey under the clear terms of the contract. The court held that the statute of frauds and the parol evidence rule barred Favre’s argument that Cinque Bambini breached a subsequent oral agreement to provide a survey. The court found that, because Favre was in breach of its unconditional obligation to pay earnest money, Favre could not maintain an action for breach of contract based on Cinque Bambini’s timber harvesting or telephone tower leases. The court reserved ruling on Cinque Bambini’s motion for sanctions, but entered an order dismissing that motion on June 3, 2002.

LAW AND ANALYSIS

¶ 13. Rather than amending its complaint, Favre filed a notice of appeal from the February 27 order dismissing the complaint pursuant to Rule 12(b)(6). As the February 27 order did not dispose of Cin-que Bambini’s pending motion for sanctions, the order was not a final judgment from which an appeal could be taken. M.R.C.P. 54(b). However, Favre effectively appealed by filing an amended notice of appeal from the Rule 12(b)(6) dismissal within thirty days of the June 3 order disposing of the motion for sanctions. M.R.A.P. 4(a). Cinque Bambini also timely appealed from the June 3 order, and the Mississippi Supreme Court consolidated the appeals. Therefore, these appeals are properly before this Court.

¶ 14. A motion to dismiss for failure to state a claim upon which relief can be granted challenges the legal sufficiency of the complaint, and raises a question of law. Little v. Miss. Dept of Human Services, 835 So.2d 9, 10-11 (¶¶ 5-6) (Miss.2002). Therefore, this Court reviews a 12(b)(6) dismissal de novo. Id. at (¶ 5). On review, the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears to a certainty that the plaintiff will be unable to prove any set of facts in support of the claim. Id. at (¶ 6).

¶ 15. As an initial matter, we address the effect of Favre’s introduction, in its response to the motion to dismiss, of new allegations and evidence outside the complaint. Favre attached several supporting affidavits to the response. Rule 12(b) provides

[i]f, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56....

Rule 56(c) provides that the trial court shall grant summary judgment if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Appellate review of the trial court’s grant of summary judgment is de novo. Russell v. Orr, 700 So.2d 619, 622(¶8) (Miss.1997). As Favre’s affidavits were presented to the lower court, we must determine whether the motion to dismiss was converted into one for summary judgment pursuant to Rule 12(b).

¶ 16. “Whether a Rule 12 motion ought to be converted into a motion for summary judgment is a function of whether the Circuit Court finds it necessary to resort to matters outside the pleadings in order to dispose of the motion.” Walton v. Bourgeois, 512 So.2d 698, 700 (Miss.1987). Under Rule 12(b), even if matters outside the pleadings are introduced, the trial court may exclude those matters and review the motion pursuant to Rule 12(b)(6). The instant case is complicated by the fact that the trial court never expressly excluded Favre’s affidavits. However, it appears from its order that the trial court strictly limited its review to the face of Favre’s complaint, and did not consider any evidence outside of the complaint in its disposition of the motion. As the lower court did not consider matters outside the pleadings, we find that it dismissed Favre’s claims pursuant to Rule 12(b)(6). See Petition of 2,952 Registered Voters, 574 So.2d 619, 622 (Miss.1990).

¶ 17. Another complicating matter is Favre’s allegation regarding the legal description. In its complaint, Favre alleged that it needed the legal description to “complete the title work.” Cinque Bambi-ni’s motion to dismiss responded to that allegation. Then, in its response to the motion to dismiss, Favre alleged that it needed the legal description to perform the survey. This new allegation, extraneous to the complaint, was the subject of significant arguments by both parties at the motion hearing. Cinque Bambini never objected to the injection of this issue into the case. Mississippi Rule of Civil Procedure 15(b) provides that “when issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” We find that, though this issue was not raised in Favre’s pleading, the issue had been placed before the lower court by the implied consent of the parties. M.R.C.P. 15(b); Stewart v. Graber, 754 So.2d 1281, 1285 (¶ 18) (Miss.Ct.App.1999).

¶ 18. We now reach the merits- of the 12(b)(6) dismissal, limiting our review to the allegations in Favre’s complaint. Cinque Bambini argues that Favre failed to state a claim for breach of contract. The elements of a breach of contract are: (1) the existence of a valid and binding contract; (2) that the defendant has broken, or breached it; and (3) that the plaintiff has been thereby damaged monetarily. Warwick v. Matheney, 603 So.2d 330, 336 (Miss.1992). Favre’s complaint alleged each of these elements. We must determine whether the allegations of breach, taken as true, are sufficient to state a claim for breach of contract.

¶ 19. Favre claimed that Cinque Bam-bini breached the contract by “entering] into contracts for billboards and/or telephone towers.” The contract provided that Cinque Bambini would not execute any agreements affecting ownership or operation of the property, or execute any new contract respecting the ownership and operation of the property. Favre’s claim that Cinque Bambini contractually bound the subject property to third parties for billboards and/or telephone towers clearly alleged that Cinque Bambini breached these contractual provisions. Favre also alleged that Cinque Bambini harvested timber in breach of the contractual provision allowing timber cutting only for maintenance or in accordance with prior practices. Cinque Bambini argued, and the trial court found, that Favre could not maintain an action for the breach of these provisions because Favre admittedly did not make the third earnest money payment.

¶ 20. It is well established that a party’s material breach of a bilateral contract excuses further performance by the other party. Gulf South Capital Corp. v. Brown, 183 So.2d 802, 804-05 (Miss.1966). The issue of whether a breach was material is a question of fact. UHS-Qualicare, Inc. v. Gulf Coast Cmty Hosp., Inc., 525 So.2d 746, 756 (Miss.1987). Favre’s complaint stated that Cinque Bambini executed contracts for telephone towers and harvested timber before December 27, 2000. A question is raised of whether the alleged execution of telephone tower contracts and timber harvesting occurred before the third earnest money payment was due. This question alone was sufficient to prevent dismissal of Favre’s claim because, if Cinque Bambini committed a material breach before the third earnest money payment was due, then the breach excused Favre’s further performance. The third earnest money payment was due on the 151st day following July 28, 2000, the effective date of the contract. We take judicial notice that December 26, 2000, was the 151st day following July 28, 2000. Thus, Favre’s complaint alleged that Cinque Bambini breached the contract first. If Cinque Bambini’s execution of contracts and/or timber harvesting amounted to a material breach, then the breach excused Favre’s further performance, including payment of earnest money. Gulf South Capital Corp., 183 So.2d at 804-05. Therefore, Favre’s complaint stated a claim upon which relief could be granted, and dismissal was improper.

¶21. Though we have found that Favre’s complaint was sufficient to withstand dismissal, we address Favre’s claims that Cinque Bambini had a duty to provide a survey and a legal description. Favre’s assertion that Cinque Bambini owed it a survey has no merit. The contract placed the duty to obtain a survey upon Favre. As the contract was clear and unambiguous on this point, the parties’ subsequent negotiations were inadmissible to show any different intention of the parties. Bradley v. Howell, 161 Miss. 346, 352, 134 So. 843, 844, (1931). Any subsequent oral agreement that Cinque Bambini would provide a survey is barred by the statute of frauds. This is because a contract to purchase land is within the purview of the statute of frauds, and any modification of a contract that comes under the statue of frauds must be in writing. Miss.Code Ann. § 15-3-l(c) (Rev.1995); Canizaro v. Mobile Communications Corp. of Am., 655 So.2d 25, 29 (Miss.1995). We observe that the parol evidence rule is no bar to evidence of a subsequent modification of the contract. Kelso v. McGowan, 604 So.2d 726, 731 (Miss.1992).

¶ 22. Favre argued that Cinque Bambi-ni intentionally withheld a legal description of the subject property in violation of the contract’s “reasonable efforts” clause and the implied covenant of good faith and fair dealing. Favre claimed that, without a legal description, it was impossible for Favre to obtain a survey of the subject property. Cinque Bambini argues that it had no contractual duty to help Favre obtain a survey, and that Favre could not complain because it could have constructed a legal description of the subject property from the county land records.

¶ 23. Because this is a 12(b)(6) dismissal, we take as true Favre’s assertion that it could not get a survey of the' subject property without a legal description. Mississippi Code Annotated section 89-5-33 (Rev.1999) provides for a system of general and sectional indices for recor-dation of land descriptions in each county. However, the prevalence of boundary dispute litigation indicates that these records are not infallible sources of property descriptions, and that situations may arise where the descriptions are incomplete or conflicting. See Goff v. Lever, 566 So.2d 1274, 1275-76 (Miss.1990); Simmons v. Cleveland, 749 So.2d 192, 194-95 (¶¶ 4-7) (Miss.Ct.App.1999); see also Miss. Ind. for the Blind v. Jackson, 231 Miss. 135, 140-41, 95 So.2d 109, 111-12 (1957) (“registration of an instrument is constructive notice to the world of the contents of the paper there recorded ... and it will have no operation or effect unless the ... instrument correctly and sufficiently describes the premises which are to be affected”). Therefore, we decline to hold, especially at this stage in the litigation, that the mere existence of the land recording system precludes Favre’s argument.

¶ 24. Favre’s argument requires our determination of the parties’ rights and duties under the contract. “When construing a contract, we read the contract as a whole, so as to give effect to all of its clauses.” Brown v. Hartford Ins. Co., 606 So.2d 122, 126 (Miss.1992). We construe a contract objectively and determine the parties’ intent from “ ‘the meaning of the language used, not the ascertainment of some possible but unexpressed intent of the parties.’ ” Cherry v. Anthony, Gibbs, Sage, 501 So.2d 416, 419 (Miss.1987) (quoting Hunt v. Triplex Safety Glass Co., 60 F.2d 92, 94 (6th Cir.1932)).

¶ 25. We review the provisions of the contract previously recited in our statement of the facts. The contract clearly placed the duty to obtain a survey upon Favre. Favre had sixty days from the effective date of the contract in which to deliver a copy of the survey to Cinque Bambini and the title company. Favre could forego a survey only if Cinque Bam-bini agreed to use the description of the subject property found in the deed. Favre’s ability to exercise its option to purchase additional acreage was contingent upon its procurement of a survey, which would have showed whether the subject property consisted of less than 2,850 acres. If Favre did not obtain a survey, by the clear terms of the contract Favre could not have exercised its option to purchase additional acreage.

¶ 26. In Cenac v. Murry, 609 So.2d 1257, 1272 (Miss.1992), the supreme court discussed the inherent contractual duty of good faith and fair dealing. “Good faith is the faithfulness of an agreed purpose between two parties, a purpose which is consistent with justified expectations of the other party. The breach of good faith is bad faith characterized by some conduct which violates standards of decency, fairness or reasonableness.” Id. The covenant holds that “neither party will do anything which injures the right of the other to receive the benefits of the agreement.” Cothem v. Vickers, 759 So.2d 1241, 1248 (¶ 17) (Miss.2000). The covenant not only imposes a duty not to prevent or hinder the other party’s performance, but may impose a duty “to take some affirmative steps to cooperate in achieving these goals.” Cenac, 609 So.2d at 1272. In the present case, these principles were encapsulated by the clause in the contract requiring the parties to make reasonable efforts to effectuate a transfer of the premises.

¶ 27. Favre’s argument accuses Cinque Bambini of intentionally thwarting its effort to obtain a survey by withholding the legal description. Our review of the contract terms indicates that an inability by Favre to obtain a survey would have hindered its ability to perform under the contract. The survey was due within sixty days of the effective date of the contract. Favre was unable to simply forego obtaining the survey; before it could do so, it had to secure Cinque Bam-bini’s agreement to use the description in the deed. Presumably, if Favre did not obtain a survey and Cinque Bambini refused to use the description in the deed, then Favre would have been in breach of its contractual duty to provide a survey. Further, Favre was wholly unable to exercise its option without a survey. “If one party to a contract prevents another party from carrying out his part of the agreement, he becomes liable in damages for the breach of the contract.” Callicott v. Gresham, 249 Miss. 103, 111, 161 So.2d 183,186 (1964). Taking Favre’s allegations as true, we are unable to say that Cinque Bambi-ni’s intentional withholding of a legal description, especially in light of Cinque Bambini’s other misbehavior, could under no set of facts be so unreasonable as to constitute a breach of the covenant of good faith and fair dealing. Assuming Favre proved such a breach occurred, whether or not the breach excused Favre’s further performance of the contract would depend upon whether the facts demonstrate that the breach rose to the level of materiality. Gulf South Capital Corp., 183 So.2d at 804-05.

¶ 28. THE JUDGMENT OF THE CIRCUIT COURT OF HANCOCK COUNTY IN CASE NUMBER 2002-CA-00395-COA IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE. THE JUDGMENT OF THE CIRCUIT COURT OF HANCOCK COUNTY IN CASE NUMBER 2002-CA-01092-COA IS AFFIRMED. ALL UOSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The contract and proposal attached to Favre’s complaint, and the affidavit averring the effective date of the contract attached to the motion to dismiss, are considered part of the pleading because they are central to the cause of action for breach of contract. Sennett v. U.S. Fidelity & Guar. Co., 757 So.2d 206, 209(¶ 9) (Miss.2000).


author: GRIFFIS, J.,

text:
    Harland Craig RENFROW, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-00602-COA.
    Court of Appeals of Mississippi.
    Jan. 20, 2004.

      Glen W. Hall, Jackson, James A. Williams, Meridian, Percy Stanfield, Jackson, attorneys for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before KING, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Harland C. Renfrow was convicted in the Circuit Court of Lauderdale County of sexual battery of a three year old female child and was sentenced to serve life in the custody of the Mississippi Department of Corrections. Renfrow appeals asserting that (1) the trial court erred in allowing the child to testify, (2) the indictment was flawed, (3) the trial court erred in allowing an instruction which referred to the child as a victim, and (4) his counsel rendered ineffective assistance. We find no error and affirm.

FACTS

¶ 2. On June 11, 2000, Tracy Hill-Watts, an investigator for the Lauderdale County Sheriffs Department, was called to Riley’s Hospital on a report of an alleged sexual assault on a child. The child was a three year old female, who was brought into the hospital that morning by Renfrow.

¶ 3. After an examination, Dr. James Purdy, an obstetrician and gynecologist, determined that the child had extensive damage to her vagina, pelvic peritoneum, and rectum. The child was transported to the University Medical Center in Jackson where she underwent several surgeries, including a sigmoid loop colostomy, to repair the damage.

¶ 4. Renfrow was indicted and charged with sexual battery. The indictment, in pertinent part, provided:

Harland Craig Renfrow ... on or about the 10th day of June. A.D.2000, did then and there willfully, unlawfully, and felo-niously engage in sexual penetration with a foreign object, as defined in MCA 97-3-97, with [the child] ..., a female child under the age of fourteen(14) years, and the said Harland C. Renfrow • ... is a person twenty-four or more months older than the said child, in violation of Section 97 — 3—95(d), Mississippi Code....

¶ 5. At trial, the child took the stand, at age five, and testified that Renfrow hurt her. The defense moved to strike the child’s testimony, and the motion was granted. After continued questioning, the trial judge ruled that the child was not competent to testify. The judge found that the child was not yet capable of accurately recalling past events, and he instructed the jury to disregard the testimony of the child. Each juror indicated that they would follow the judge’s instructions. The judge denied the defense motion for a mistrial.

¶ 6. Investigator Tracy Hill-Watts testified that she accompanied investigator Brenda Snowden, a Wesley House Community Center social worker, and Vicki Whitlock, a Department of Human Services social worker, to the home of the child and her mother after she had been released from the hospital. Hill-Watts testified that the child responded to questions about who hurt her by answering, “[Renfrow] hurt me.”

¶ 7. Hill-Watts further testified that Renfrow had claimed that the child’s injuries resulted from a fall onto a toy baby doll’s bottle. A toy bottle that Hill-Watts retrieved from the hospital’s medical personnel was admitted into evidence. Hill-Watts testified that during her investigation she discovered that the child, in the presence of Renfrow, nodded to the nurse at the hospital when asked whether she fell onto a bottle.

¶8. The prosecution introduced a sex toy, described as a dildo or a vibrator, into evidence. Judy Womack, Renfrow’s former wife, identified the sex toy as her property. She testified that she took this sex toy to Renfrow’s home on May 28. After June 11th, Womack got permission from the authorities to retrieve the sex toy from Renfrow’s home. Since that time, she testified that she retained custody of it.

¶ 9. Dr. Purdy testified that the injuries he observed were not consistent with the baby bottle or self auto insertion. Dr. Purdy testified that the toy baby doll bottle explanation was inaccurate and not plausible. According to Dr. Purdy, the child’s injuries were consistent with the insertion of a vibrator, similar to the sex toy that was entered into evidence. Dr. Purdy further testified that the injury was not recent to his examination. Instead, Dr. Purdy determined that the injury occurred several hours before the child was brought to the hospital.

¶ 10. The child’s mother testified that she had sexual relations with Renfrow on June 10, 2000. She testified that Renfrow attempted to use a vibrator on her. She identified the sex toy/vibrator introduced in evidence as the vibrator Renfrow attempted to use on her. She testified that this sexual encounter with Renfrow occurred the night before the child was brought into the hospital for her injuries.

¶ 11. Brenda Snowden testified that she accompanied investigator Hill-Watts and Vicki Whitlock to the child’s home after she had been released from the hospital. Snowden testified that when investigator Hill-Watts asked the child to tell who hurt her, the child said, “[Renfrow] hurt me.” She testified that Ms. Whitlock also asked the child to tell us again who hurt you. And the child again said, “[Renfrow] hurt me.” The child’s mother also testified that the child’s response was that Renfrow had hurt her.

¶ 12. Jerri Clay, a registered nurse at Riley’s Hospital, testified that she was on duty when the child arrived. Clay testified that when she asked the child what happened, Renfrow interrupted and told her that the child fell on the bottle. Clay testified that the child nodded, affirming Renfrow’s explanation. Clay further testified that she called the Rape Crisis Center and the sheriffs department because she believed that this injury was the result of a sexual offense.

¶ 13. Renfrow testified that the child and his minor daughter stayed with him at his trailer on the weekend in question. Renfrow testified that he heard the child screaming and that he went to her room. He testified that the child told him that she had fallen on the toy bottle. He testified that he took her diaper off, sat her on the bed, and examined her. He testified that he saw the bottle and then took the bottle out of her. Renfrow testified that he then took the child to the bathroom, washed her, wrapped her in a towel, and brought her to the hospital.

¶ 14. Renfrow testified that there was a hole in the diaper the child was wearing. After he took it off, Renfrow claimed he placed the diaper on a barrel in the back of his house where he puts his trash. After being questioned as to the whereabouts of the diaper, Renfrow testified that he did not know where the diaper was and speculated that some dogs probably took it away. Hill-Watts testified that the diaper was not recovered.

¶ 15. Renfrow admitted that the vibrator introduced into evidence was in his home the night of the incident. However, he claimed that he did not attempt to use the vibrator during sex with the child’s mother.

¶ 16. Renfrow further testified that only he, his minor daughter, and the child’s mother had access to the child on the night in question. Renfrow admitted that the child’s mother, however, did not see the child that night. When he returned from the hospital, Renfrow testified that he took the sheets off the bed and “stuck them in the washing machine and put some water on them,” but never washed them. Renfrow testified that since he had only two pair of sheets, he put them in the washer because of the blood stains. Hill-Watts testified that the bloody sheets were not recovered.

¶ 17. The jury found Renfrow guilty. The trial court denied Renfrow’s motion for judgment notwithstanding the verdict or, in the alternative, a new trial.

LEGAL ANALYSIS

I. Whether Renfrow was denied a fair trial and due process when the child was allowed to testify before a ruling on the competency of the child, when there ivas no cross-examination of the child, and when statements from the child to others that defendant injured her were disclosed to the jury.

¶ 18. On appeal, Renfrow argues that he was denied a fair trial because the child was allowed to take the witness stand without first having been qualified as a competent witness.

¶ 19. The child, at age five, took the stand to testify. The prosecutor asked, “who hurt you on June 10th 2000?” The child responded, “[Renfrow].” Defense counsel then objected on the basis that the question was leading. The objection was sustained.

¶20. The child then testified that she did not recall going to the hospital or talking to a doctor or a nurse. She testified that she did not know when she was hurt or how old she was when she got hurt. In response to further questioning, the child again testified that Renfrow hurt her. The defense again objected. The court sustained the objection and struck the testimony.

¶21. The child then testified that she did not know where she got hurt. She did not remember being in pain. And, for the third time, she testified that Renfrow hurt her in response to the prosecutor’s question, “[EJarlier when you said you got hurt, you said you knew who hurt you?” The court again sustained the defense’s objection.

¶ 22. At this point, the defense moved to strike and for a mistrial. The court granted the motion to strike, based on Rules 601 and 608 of the Mississippi Rules of Evidence, but denied the mistrial. The court then stated, “it is with due regret, counsel, but I can’t rule this witness to be competent to testify.” Defense counsel then requested the court to instruct the jury as to the motion to strike, and the judge instructed the jury to disregard the comments of the child. Each juror then indicated that they would follow the judge’s instructions. Renfrow claims that the trial judge committed error in this ruling.

¶23. Prior to the trial, the defense chose not to challenge the child’s competency to testify. The prosecutor, during pretrial motions, announced that they intended to call the child as a witness. The testimony they intended to use had been provided in discovery. Renfrow did not file a motion in limine to prevent this testimony and did not request that the trial judge hold a competence hearing, outside the presence of the jury, prior to the child taking the stand.

¶24. The determination of the competency of a witness is made at the discretion of the trial judge. Burbank v. State, 800 So.2d 540, 544(¶ 6) (Miss.Ct.App.2001). Every person is assumed competent to testify. Barnett v. State, 757 So.2d 323, 328(¶ 13)(Miss.Ct.App.2000). “Although the court did not conduct a preliminary investigation of the child to determine competency, it was not required to do so.” Burbank, 800 So.2d at 544(¶ 6). Therefore, we find Renfrow’s argument that he was denied a fair trial because the child was allowed to take the stand without first having been qualified as a competent witness to be without merit. Further, Renfrow has not demonstrated that the trial judge abused his discretion. Without a demonstration of an abuse of that discretion, there is no basis for this Court to overturn that ruling. Id.

¶ 25. Renfrow next argues that he was denied his constitutional right to confront the child. The trial judge found that the defense had the opportunity to cross-examine the witness while she was on the stand, despite the fact that the judge later found that the child’s testimony could not be relied upon. The defense objected to the child’s testimony, and the child’s testimony was determined to be incompetent in response to the defense’s objection. The defense was not prohibited from questioning the witness; the opportunity was there. The witness simply was unable to offer competent testimony.

¶ 26. The trial judge instructed the jury to disregard the child’s testimony, and the jurors confirmed that they would by a showing of their hands. There is a strong presumption that the jury follows the instructions of the court. McGilberry v. State, 741 So.2d 894, 913(¶ 63) (Miss.1999). Renfrow has failed to rebut this presumption. Therefore, we find that Renfrow has not established a constitutional violation or an abuse of discretion by the trial judge. Consequently, we find no error.

¶ 27. Renfrow next argues that it was error to admit the child’s hearsay statements concerning the cause of the injuries. The State called Tracy Hill-Watts to testify as to what the child had said concerning the investigation of the alleged sex offense. Hill-Watts testified that the child was three and a half years old at the time of her statement. Hill-Watts testified that she visited the child in the hospital soon after the alleged sex offense occurred. She testified that at the time of her visit two social workers, Brenda Snowden and Vicki Whitlock, were present along with the child’s mother. Hill-Watts testified that the child told Whitlock that Renfrow had hurt her. She further testified that the child said it again so that everyone present could hear her.

¶ 28. Renfrow objected to Hill-Watt’s testimony concerning the child’s statements on the basis that it was hearsay. The trial judge has discretion to either accept or reject evidence offered. Austin v. State, 784 So.2d 186, 193(¶ 23) (Miss.2001). “That discretion must be exercised within the scope of the Mississippi Rules of Evidence, and reversal will only be had when an abuse of discretion results in prejudice to the accused.” Id. at 193-94(¶ 23). Here, the trial judge found the testimony admissible under Rule 803(25) of the Mississippi Rules of Evidence, as an exception to the hearsay rule. Rule 803(25) provides:

A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

The comment to Rule 803 lists several factors, sometimes referred to as the “Wright factors,” that a trial judge should consider to determine whether there is a “substantial indicia of reliability.” The factors include:

(1) whether there is an apparent motive on declarant’s part to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) the timing of the declarations; (6) the relationship between the declarant and the witness; (7) the possibility of the declarant’s faulty recollection is remote; (8) certainty that the statements were made; (9) the credibility of the person testifying about the statements; (10) the age or maturity of the declarant; (11) whether suggestive techniques were used in eliciting the statement; and (12) whether the declar-ant’s age, knowledge, and experience make it unlikely that the declarant fabricated.

M.R.E. 803(25) cmt. The comment also requires that “[a] finding that there is a substantial indicia of reliability should be made on the record.” Id.

¶ 29. The trial judge conducted the required hearing, outside the presence of the jury. The trial judge accepted testimony and made extensive findings as to the factors necessary to ascertain the veracity of the declarant’s testimony. The judge found that there was no motive to lie, that Hill-Watts’s character was not disputed, that the statements were spontaneous and not coerced, and that Hill-Watts’s testimony was credible.

¶ 30. The trial judge followed the proper procedure required by Rule 803(25) of the Mississippi Rules of Evidence. Therefore, the trial judge did not abuse his discretion in allowing this testimony. We find this assignment of error to be without merit.

II. Whether the defendant was denied a fair trial and due process of law when he tvas indicted on a charge of sexual penetration of a three-year-old with a foreign object not specifically named in the indictment and a vibrator in the form of a penis is introduced where there was no medical certainty that the vibrator caused the injuries to the child?

¶ 31. Renfrew next argues that the indictment was flawed because it named the instrument used to injure the child as a “foreign object.” Uniform Circuit and County Circuit Court Rule 7.06 requires that the indictment provide “a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” Rule 7.06 commands that an indictment include:

1. The name of the accused;
2. The date on which the indictment was filed in each court;
3. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;
4. The county and judicial district in which the indictment is brought;
5. The date and, if applicable, the time, on which the offense was alleged to be committed. Failure to state the correct date shall not render the indictment insufficient;
6. The signature of the foreman of the grand jury issuing it; and
7. The words “against the peace and dignity of the state.”

¶ 32. If an indictment includes the seven items enumerated, it is sufficient to provide the defendant with notice of the charge against him. Roberson v. State, 595 So.2d 1310, 1318 (Miss.1992). We find that all seven requirements of Rule 7.06 were met by the indictment, and it “reasonably provide[d] the accused with actual notice” of the charge against him. Roberson, 595 So.2d at 1318.

¶ 33. We also find that the use of the term “foreign object” gave Renfrow sufficient notice that an object used in the crime would be introduced into evidence. The term “foreign object”- was broad enough to include the sex toy or vibrator, regardless of how it was described, as well as the baby bottle, which was Renfrew’s theory about how the child was injured. We find no error in the indictment.

¶ 34. Renfrow also argues that the trial court erred in admitting the vibrator into evidence. He contends that, although the vibrator may have met the relevancy requirement set forth in Mississippi Rule of Evidence 401, its prejudicial effect outweighed its probative value as set forth in Mississippi Rule of Evidence 403. Therefore, Renfrow asserts that the vibrator should have been excluded.

¶ 35. The admissibility and relevancy of evidence are within the discretion of the trial court. Absent an abuse of that discretion, the trial court’s decision will not be disturbed on appeal. McCoy v. State, 820 So.2d 25, 31(¶ 15) (Miss.Ct.App.2002). Here, Dr. Purdy testified that the vibrator introduced at trial was consistent with the child’s injuries. Dr. Purdy testified that the toy baby bottle was not consistent with the injuries, as claimed by the defendant. The child’s mother; testified that Renfrow had attempted to use the vibrator on her during sex the night before. She identified the vibrator presented in court as the vibrator that she saw the defendant with on the night of June 10, 2000. The trial judge admitted both the vibrator and the baby bottle. The trial judge allowed testimony on both so that the jury could weigh the credibility of the witnesses and draw reasonable inferences from the evidence.

¶ 36. The vibrator was certainly probative evidence. Based on this testimony, we cannot say the trial judge erred in his determination that the prejudicial effect of admitting the vibrator into evidence did not outweigh its probative value. Therefore, we find no abuse of discretion in admitting the vibrator into evidence.

III. Whether the defendant was denied a fair trial and due process of law when the jury instructions taken as a whole contained assumptions of fact of material issues.

¶ 37. Renfrow argues that it was error for the State’s instruction on the elements of the crime to refer to the child as the victim. Instruction Sl-A, in pertinent part, read “and the Defendant is more than twenty four (24) months older than the victim.” Renfrow contends that the use of the word “victim” improperly influenced the jury’s finding that Renfrow was guilty of sexual battery of the child.

¶ 38. Upon review of the record, we find that Renfrow did not object to this language in the State’s amended instruction S-1A. It is well established that the appellant must object with specificity in order to preserve an error for appeal. Oates v. State, 421 So.2d 1025, 1030 (Miss.1982). This assignment of error is procedurally barred.

IV. Whether the defendant was denied effective assistance of counsel.

¶39. Renfrow asserts three grounds upon which he claims his counsel was ineffective. Renfrow argues that his counsel was ineffective when his counsel (1) stated during voir dire that the defendant could be released on a technicality even though the proof showed him guilty, (2) failed to eliminate the term “victim” from an instruction, and (3) failed to object to the trial judge’s assistance to the prosecution in Dr. Purdy’s testimony concerning the photographs that were introduced into evidence.

¶ 40. According to Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to prove trial counsel to be ineffective, it must be shown that (1) counsel’s performance was deficient, and (2) the defendant was prejudiced by his counsel’s mistakes. There is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Id. To overcome this presumption, “the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different.” Id.

¶ 41. We consider Renfrew's arguments in order. As to the first ground, whether his counsel was ineffective when he stated during voir dire that the defendant could be released on a technicality even though the proof showed him guilty, Renfrow has failed to overcome the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. In Mohr v. State, the Mississippi Supreme Court required the defendant to show the existence of a reasonable probability that, but for counsel’s unprofessional errors, the outcome would have been different. Mohr v. State, 584 So.2d 426, 430 (Miss.1991). Renfrow has failed to show any probability that the outcome would have been different but for his counsel’s comments during voir dire. Renfrow simply relies on conclusory statements. There is no evidence that counsel’s actions were anything other than trial strategy. Accordingly, we find this argument to be without merit.

¶ 42. As to the second ground, whether his counsel was ineffective when he failed to eliminate the term “victim” from an instruction, the jury was free to determine that the child was the victim of a crime and that the injuries she sustained were not accidental. Even if counsel had objected, Renfrow has again failed to demonstrate that the outcome would probably have been different. We find no merit to this argument.

¶ 43. As to the third ground, whether his counsel was ineffective when he failed to object to the trial judge’s assistance to the prosecution in Dr. Pur-dy’s testimony concerning the photographs that were introduced into evidence, during Dr. Purdy’s testimony, the State offered photographs of an external view of the child’s perineum and vulva taken on the night of the incident. Renfrew’s counsel objected arguing that the prejudicial effect outweighed the probative value. The trial court viewed the Polaroid pictures and then asked the prosecution to question Dr. Purdy as to how the photographs depicted the child’s injuries. The State asked Dr. Purdy if the pictures showed the injuries that the child sustained. Dr. Purdy responded that the pictures were representative of what he saw that day. Dr. Purdy testified that the pictures showed the area of the injury, but did not show the intensity of the cut because of the poor illumination.

¶ 44. The trial judge sustained the objection as to all of the photographs except one. The judge found that the pictures had significant probative value and a high degree of prejudicial effect, but because there was an issue in regarding how the child was injured, the trial judge allowed only one of the three photographs to be admitted. The trial judge reasoned that the admitted photograph accurately represented what Dr. Purdy saw upon examining the child.

¶ 45. The trial court is vested with broad discretion in determining the admissibility of evidence. Johnson v. State, 655 So.2d 37, 42 (Miss.1995). A trial judge has the responsibility, within judicial discretion, of confining the testimony during trial to the issue before it. Hannah v. State, 336 So.2d 1317, 1320-21 (Miss.1976). In this case, the photograph in issue was relevant to the child’s injuries. We find no abuse of discretion by the trial court in admitting the photograph or prejudice to Renfrow from the court’s request that the prosecution question Dr. Purdy as to how the photographs depicted the child’s injuries.

¶ 46. In addition, Renfrow cites no authority to support a finding that the trial judge was in error. It is Renfrew's duty to provide authority and support for the issues which he presents. Rigby v. State, 826 So.2d 694, 707(¶ 44) (Miss.2002) (citing Hoops v. State, 681 So.2d 521, 526 (Miss.1996)). By failing to demonstrate how the court was in error, Renfrow has again failed to demonstrate that but for his counsel’s alleged deficiency the outcome would have been different. Therefore, we find this assignment of error to be without merit.

¶ 47. We find no error and affirm.

¶ 48. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

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