author: ISHEE, J.,

text:
    Coye A. HOLMAN and Ted Holman, Appellants v. HOWARD WILSON CHRYSLER JEEP, INC., Appellee.
    No. 2005-CA-01154-COA.
    Court of Appeals of Mississippi.
    Nov. 14, 2006.
    Rehearing Denied April 3, 2007.

      Mark W. Prewitt, Vicksburg, attorney for appellants.
    Jeffrey P. Hubbard, Susan Louise Durham, Jackson, attorneys for appellee.
    Before MYERS, P.J., IRVING, and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Coye and Ted Holman filed suit against Howard Wilson Chrysler Jeep, Inc., in the Circuit Court of Rankin County on November 10, 2003, seeking actual and punitive damages allegedly suffered as a result of prior damage to a 2002 Jeep Grand Cherokee that was purchased from Howard Wilson. The court granted a motion filed by the Holmans to amend their complaint. After the complaint was amended the court granted Howard Wilson’s motion for summary judgment and dismissed the case, with prejudice. Finding no error, we affirm.

FACTS

¶ 2. On July 30, 2002, the Holmans purchased a 2002 Jeep Grand Cherokee from Howard Wilson. The Jeep was a demonstrator vehicle that had been driven approximately 8,000 miles at the time of purchase. On October 2, 2003, the Holmans were informed by their insurance agent that the Jeep they had purchased was previously involved in an accident.

¶ 3. The Holmans allege that Howard Wilson knew the Jeep had previously sustained substantial damage and that Howard Wilson had intentionally concealed the damages. The Holmans alleged that Howard Wilson’s actions constitute negligence, consumer fraud, and material misrepresentation.

¶ 4. Howard Wilson responded that they were under no duty to disclose any prior damage to the vehicle but did so anyway. They direct this Court’s attention to Regulation One, which was promulgated by the Mississippi Motor Vehicle Commission, and to the contract that the Holmans signed.

¶ 5. The court granted Howard Wilson’s motion for summary judgment on June 1, 2005. Aggrieved by the judgment, the Holmans appeal and assert the following: (1) whether the trial court erred in granting Howard Wilson’s motion for summary judgment.

STANDARD OF REVIEW

¶ 6. An appeal from summary judgment is reviewed de novo. Jacox v. Circus Circus Miss., Inc., 908 So.2d 181, 183(¶ 4) (Miss.Ct.App.2005) (citing Cossitt v. Alfa Ins. Carp., 1216 So.2d 132, 136(¶ 19) (Miss. 1998)). The standard by which we review the grant or denial of summary judgment is the same standard as is employed by the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. Id. (citing Dailey v. Methodist Med. Ctr., 790 So.2d 903, 906-07(¶ 3) (Miss.Ct.App.2001)). Pursuant to Rule 56(c) of the Mississippi Rules of Civil Procedure, summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” The evidence must be viewed in the light most favorable to the nonmoving party. Jacox, 908 So.2d at 181(¶4) (citing Dailey v. Methodist Med. Ctr., 790 So.2d at 903)).

ISSUES AND ANALYSIS

I. Whether the trial court erred in granting Howard Wilson’s motion for summary judgment.

¶ 7. The Mississippi Motor Vehicle Commission was established by Mississippi Code Annotated section 63-17-57 (Supp. 2006). The Commission was created because of the significant effect the automobile industry has on the general economy of the State. Miss Code Ann. § 63-17-53 (Rev.2004). Mississippi Code Annotated section 63-17-69 (Rev.2004) gives the Commission the power to issue such rules and regulations that are necessary to carry out the provisions of the Mississippi Motor Vehicle Commission Law. Howard Wilson asserts that Regulation One, which governs damage disclosure, does not require it to disclose any damage. We agree. Regulation One provides as follows:

On any vehicle, corrected damage exceeding six percent (6%) of the manufacturer’s suggested retail price, as measured by retail repair costs, must be disclosed in writing prior to dealer transfers and consumer deliveries. Damage to glass, tires, and bumpers and any damaged components or options which can be replaced by identical components are excluded, from the six percent (6%) regulation when replaced by identical manufacturer’s original equipment.

¶ 8. The Holmans argue that Regulation One is not applicable and that Howard Wilson had a duty to make such disclosures. It is this Court’s opinion that Howard Wilson did make such disclosures. The document that the Holmans signed contained the following disclosure:

The Vehicle may have suffered damages and may have had repairs performed on it during prior ownership or usage, during transit or while in the control or possession of Howard Wilson. It is acknowledged that the Vehicle has been inspected in accordance with the law, and that it has been test driven and fully inspected by offeror(s) and all others requested or desired by offeror(s) to do so. The Vehicle is fully acceptable to offeror(s) in its present condition. Howard Wilson has no obligation to furnish any loaner car to offeror(s) or to provide any other substitute transportation to offeror(s) for any reason.

¶ 9. When examining a contract, a court should first examine the four corners of the contract to determine how to interpret it. Rotenberry v. Hooker, 864 So.2d 266, 270(¶ 14) (Miss.2003) (citing McKee v. McKee, 568 So.2d 262, 266 (Miss.1990)). This Court is of the opinion that the language of the lease agreement governs and that the Holmans were made aware of possible damages by the disclosure made by Howard Wilson.

¶ 10. This vehicle was purchased in July of 2002, yet the Holmans did not file suit until November 2003, after driving an additional 20,000 miles after the purchase. Howard Wilson replaced the following component parts prior to the sale: front-cover radiator support, cross-members, deflector, radiator-engine cooling, condenser, bracket, coolant and freon; bumper-facsia. The Holmans have stated that the seats, key adjustment, and transmission are flawed. Nevertheless, the Holmans failed to provide evidence of causation. In addition, the repairs Howard Wilson made do not relate to the damages that the Holmans have alleged.

¶ 11. Furthermore, the vehicle purchased was a demonstrator vehicle that had been driven approximately 8,000 miles at the time of purchase.

¶ 12. After reading Regulation One, it is clear that Howard Wilson did not have a duty to disclose the prior damages. Despite this regulation, Howard Wilson had the Holmans sign a disclosure statement that would have fulfilled their duty had there been one. Lastly, the Holmans have failed to show any connection with the prior damage to the damages they allegedly suffered. Thus, this issue is without merit.

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

MYERS, P.J., SOUTHWICK, CHANDLER, GRIFFIS, AND BARNES, JJ., CONCUR. KING, C.J., IRVING, AND ROBERTS, JJ., CONCUR IN RESULT ONLY. LEE, P.J., NOT PARTICIPATING.


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Mark Dwayne SUMRELL, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-KA-00963-COA.
    Court of Appeals of Mississippi.
    Dec. 5, 2006.
    Rehearing Denied April 24, 2007.

      Stephen Nick, Greenville, attorney for appellant.
    Office of the Attorney General by Desh-un Terrell Martin, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J.,

for the Court.

¶ 1. Mark Dwayne Sumrell was convicted by a jury of felony shoplifting and sentenced by the Washington County Circuit Court to life in the custody of the Mississippi Department of Corrections as a habitual offender. Sumrell now appeals his conviction, asserting that his trial counsel was ineffective for failing to pursue disqualification of the district attorney’s office, for allowing a jury instruction, and for not sufficiently contesting the State’s amendment of Sumrell’s indictment.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On October 13, 2003, Sumrell entered a Kroger grocery store in Greenville, Mississippi. James Ross, a security guard employed by the store, observed Sumrell enter the store and go immediately to a rack of leather jackets. Ross then observed Sumrell take one of the jackets and head further into the store. Ross followed Sumrell and watched as Sumrell put on the jacket. At that time, Ross noticed that the tags on the jacket had been removed. According to Ross, Sumrell then made his way toward the exit of the store without paying for the jacket. Ross then intercepted Sumrell and requested that he remove the jacket and come to the office. Sumrell asked if he could simply remove the jacket and leave the store, but Ross told him that he needed to come to the store’s office. Ross contacted the police after intercepting Sumrell.

¶ 4. After the police arrived at the store, they questioned Sumrell and took photographs of the leather jacket. Ultimately, Sumrell was arrested for shoplifting. Because he had two prior shoplifting convictions, he was charged with third-offense shoplifting, a felony. Miss.Code Ann. § 97-23-93(6) (Rev.2006).

¶ 5. Carol White-Riehard, then employed by the Washington County Public Defender’s Office, was appointed to represent Sumrell. At some point during her representation of Sumrell, White-Riehard left the public defender’s office to work for the Washington County District Attorney’s Office. At the outset of trial, Sumrell informed the court that his former attorney in the matter now worked for the district attorney’s office.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. Sumrell asserts that his counsel was ineffective for failing to take several courses of action, each of which is discussed in turn below. We first note, however, that it is incumbent upon Sumrell to prove his counsel’s ineffectiveness by the requisite standard of proof. There are two prongs that a defendant must prove in order to show that his counsel was ineffective. First, a defendant must prove that his counsel was deficient, and second, he must prove that his counsel’s deficiency prejudiced his defense. Jones v. State, 920 So.2d 465, 478(¶ 42) (Miss.2006). There is a “strong but rebuttable presumption” that a defendant’s counsel was effective. Id. (quoting Rankin v. State, 636 So.2d 652, 656 (Miss.1994)). “The defendant must show that but for his attorney’s errors, there is a reasonable probability that he would have received a different result in the trial court.” Id. (quoting Rankin, 636 So.2d at 656).

Motion to Disqualify

¶ 7. First, Sumrell claims that his counsel was ineffective for failing to file a motion to disqualify the Washington County District Attorney’s Office. Sumrell believes that the district attorney’s office should have been removed from prosecuting him because his original trial attorney had moved to the district attorney’s office at the time of his trial, thereby creating a conflict of interest for the district attorney’s office. Although Sumrell asserts that his attorney should have moved for the disqualification of the district attorney’s office, he fails to inform us how this would have resulted in a different outcome in his case. Further, Sumrell has not directed us to any evidence indicating that White-Riehard shared information regarding his case with other attorneys in the district attorney’s office. Sumrell can point to no piece of evidence introduced by the State that came from White-Richard’s knowledge of his case. Therefore, Sumrell has failed to prove that his counsel was ineffective, because he has not shown that the alleged deficiency prejudiced his defense. In light of the strong presumption that counsel is effective, this contention of error is without merit.

Jury Instruction

¶ 8. In this assertion of error, Sum-rell appears to make the argument that his trial attorney should have objected to the State’s instruction regarding third-offense shoplifting and its reference to Sumrell’s two prior convictions for misdemeanor shoplifting. Sumrell explains that “[t]he instruction, S-2, attempts to define the conduct that constitutes shoplifting” and suggests “that a further reference to the fact that the appellant was previously convicted on two prior occasions, incorrectly, allow[ed] the jury to infer that the two prior convictions are an element of shoplifting, itself.”

¶ 9. We note that two prior convictions of shoplifting are an element of third-offense shoplifting, which is defined as: “Upon a third or subsequent shoplifting conviction the defendant shall be guilty of a felony_” Miss.Code Ann. § 97-23-93(6) (Rev.2006) (emphasis added). Therefore, in order to prove third-offense shoplifting under the code, the State must show that the defendant has been previously convicted at least twice of shoplifting. Since Sumrell was charged with third-offense shoplifting, an instruction telling the jury to determine whether Sumrell had been previously convicted of shoplifting at least twice was not only correct, it was required.

¶ 10. Sumrell then contends that the instruction should have included reference to section 97-23-93(2) as to what constitutes the requisite intent necessary for shoplifting. As to Sumrell’s contention that an instruction should have been asked for by his trial lawyer regarding the intent required for shoplifting, we note again that Sumrell has failed to show how this alleged deficiency prejudiced his defense. Instruction S-2 adequately covered what the State was required to prove in order to convict Sumrell of third-offense shoplifting. In fact, we note that the given instruction tracks almost exactly the language of Mississippi Code Annotated section 97-23-93(1). In light of the strong presumption that trial counsel acted effectively, Sumrell has failed to prove that his counsel was deficient. Further, Sumrell again has offered no evidence or argument as to how this alleged deficiency prejudiced his defense. Therefore, this issue is without merit.

Amendment of Indictment

¶ 11. In his final contention of error, Sumrell claims that his trial counsel was ineffective for failing to object to the amendment of his indictment to reflect his habitual offender status. Sumrell contends that the amendment was one of substance and not form.

¶ 12. First, we note that Sumrell’s trial attorney did, in fact, object to the State’s amendment of the indictment. The court, however, determined that the amendment was proper. Second, we note that an amendment of an indictment to reflect a defendant’s habitual offender status is allowable, as long as “the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.” Wilson v. State, 935 So.2d 945, 948-49(¶ 10) (Miss.2006) (quoting URCCC 7.09). Sumrell was presented a “fair opportunity to present a defense” and has offered no evidence to show that he was “unfairly surprised” by the amendment of the indictment to reflect his habitual offender status. Therefore, Sumrell has failed to overcome the presumption that his trial counsel provided him with effective representation. This issue is also without merit.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY OF CONVICTION OF FELONY SHOPLIFTING AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER, WITHOUT THE POSSIBILITY OF EARLY RELEASE OR PAROLE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.

      . Sumrell also has another issue: “The appellant, Sumrell, requested a continuance and the opportunity to ahve [sic] the Court appoint other counsel [as] he felt that [his trial counsel] was not prepared. The parties only spoke on two occasions prior to trial.” However, no further discussion of this issue is presented in Sumréll's brief, and the issue is therefore procedurally barred. Roche v. State, 913 So.2d 306, 314(¶26) (Miss.2005).

      . Ross was not wearing a uniform.

      . Instruction S-2 reads:
      The Court instructs the Jury that if you believe, beyond a reasonable doubt, [that] the Defendant, MARK DWAYNE SUM-RELL, did on or about the date testified about, wilfully, unlawfully and feloniously take possession of merchandise described as a black leather coat, owned and displayed for sale by Kroger, with the intention and purpose of converting such merchandise to his own use without paying the purchase price thereof, and if you further believe beyond doubt that the Defendant, MARK DWAYNE SUMRELL, was twice previously convicted of the crime of shoplifting within seven (7) years of this incident, then it is your sworn duty to find the Defendant ... guilty as charged.


author: ROBERTS, J.,

text:
    Steve WINDHAM, James E. Smith and Chad L. Garvin, Appellants v. LATCO OF MISSISSIPPI, INC. and Fabral, Inc., Appellees.
    No. 2005-CA-02086-COA.
    Court of Appeals of Mississippi.
    Feb. 6, 2007.
    Rehearing Denied June 5, 2007.
    P. Shawn Harris, Forest, attorney for appellants.
    Justin L. Matheny, Timothy D. Moore, John P. Sneed, James W. Shelson, Jackson, attorneys for appellees.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. Choctaw Maid Farms, Inc., a poultry processor, undertook an expansion project in 1995 that necessitated its farmers construct housing for the additional chickens Choctaw would require given the resultant increase in post-expansion production. The houses were designed and manufactured by Fabral, Inc., and Lateo of Mississippi, Inc. acted as the general contractor during the construction of each of the plaintiffs’ poultry houses. The houses were completed and occupied in 1995 and 1996, and began to leak soon thereafter. Steve Windham, James Smith, and Chad Garvin, chicken farmers for Choctaw, did not file their complaint until May 17, 2004. Following discovery, Fa-bral and Lateo filed separate motions for summary judgment on the basis that any cause of action the plaintiffs may have had ended as per Mississippi Code Annotated Section 15-1-41 (Rev.2003). Following a hearing, the motions for summary judgment were granted by the Circuit Court of Scott County. Windham, Garvin, and Smith now appeal, raising the following issue, which we quote verbatim:

I. WHETHER OUR FRAUDULENT CONCEALMENT STATUTE OF SECTION 15-1-67 MISS. CODE ANN. WILL ALSO ACT TO TOLL OR ESTOP THE STATUTE OF REPOSE OF SECTION 15-1-41 CONCERNING THE CONSTRUCTION OF IMPROVEMENTS ON REAL PROPERTY.

Finding no error, we affirm.

FACTS

¶ 2. Smith and Garvin each contracted with Lateo to build the poultry houses utilizing a new roofing system called grand beam design, which was developed and manufactured by Fabral. In August 1995 four houses were completed for Smith. Garvin’s four houses were completed the following year in the summer of 1996. Windham’s houses were completed in 1996 as well, but he did not purchase them until 1998. Following completion of the houses, Windham’s houses were occupied in January 1996, Smith’s in July or August 1995 and Garvin’s during-the summer of 1996. Subsequently, Windham discovered that his newly designed roofs were leaking in January 1999, Smith during the summer of 1997, and Garvin in December 1999.

¶ 3. Following repeated unsuccessful attempts to correct the problem causing the leaks, Windham, Garvin, and Smith retained counsel in early 2003. At least two engineering firms were then hired to determine the cause of the leaks and other damage the chicken houses were experiencing. After receiving reports from the engineering firms detailing their findings, Windham, Garvin, and Smith filed suit on May 17, 2004, in the Circuit Court of Scott County. After several rounds of depositions and other discovery, Fabral filed a motion for summary judgment on April 4, 2005. Soon after, on May 20, 2005, Lateo filed its motion for summary judgment. After Windham, Garvin, and Smith filed their response, a motions hearing was held on June 1, 2005, in the Circuit Court of Scott County. After due consideration of the issues, the lower court entered its judgment granting the appellees’ motions for summary judgment on October 4, 2005. The court found that both Fabral and Lat-eo were subject to Mississippi Code Annotated Section 15-1-41 and that the plaintiffs’ claims were filed outside of the six-year time frame of the statute of repose. Finally, in dismissing the plaintiffs’ claims, the trial court found that because a claim of fraudulent concealment does not toll the statute of repose, their claims were barred. From this judgment, the plaintiffs appeal.

STANDARD OF REVIEW

¶ 4. Our standard of review is de novo when reviewing a trial court’s grant of summary judgment. Williams v. Bennett, 921 So.2d 1269(¶ 9) (Miss.2006). As in any de novo review, this Court shall review all “pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any.” M.R.C.P. 56(c). The movant carries the burden of showing that no genuine issue of material fact exists, while the non-moving party is given the benefit of the doubt. Webb v. Braswell, 930 So.2d 387(¶ 12) (Miss.2006). Additionally, all evidence must be viewed in a light most favorable to the non-moving party. Stallworth v. Sanford, 921 So.2d 340(¶5) (Miss.2006). If no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that party’s favor. McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996).

ANALYSIS

I. WHETHER OUR FRAUDULENT CONCEALMENT STATUTE OF SECTION 15-1-67 MISS. CODE ANN. WILL ALSO ACT TO TOLL OR ESTOP THE STATUTE OF REPOSE OF SECTION 15-1-41 CONCERNING THE CONSTRUCTION OF IMPROVEMENTS ON REAL PROPERTY.

¶ 5. The appellants argue that the lower court erred when it granted the appellees’ motions for summary judgment. Specifically, it is their contention that Mississippi Code Annotated Section 15-1-67 (Rev. 2003) should toll the statute of repose codified at Section 15-1^41. The trial court thoroughly analyzed the current state of our law pertaining to Section 15-1-41. At the conclusion of the lower court’s analysis it found that a claim of fraudulent concealment could not toll the statute of repose and that there was no genuine issue of material fact as to whether the appellants’ claims were untimely made. We agree.

¶ 6. This Court has recently stated that, “[fraudulent concealment does not toll a statute of repose.” Baldwin v. Holliman, 913 So.2d 400(¶ 36) (Miss.Ct.App.2005). In holding as such, we relied on Reich v. Jesco, Inc., 526 So.2d 550 (Miss.1988). In Reich, after Jesco completed construction on, coincidentally, a chicken house for Reich in 1973, a winter storm caused the building to collapse in 1985, and Reich brought suit. Reich, 526 So.2d at 551. Following a grant of summary judgment for Jesco on the grounds that the then ten year statute of repose had lapsed, Reich appealed to the supreme court. Id. In affirming the lower court, the supreme court stated, “[tjhat Reich did not know or have reason to know of the design and construction deficiencies in the chicken house is of no moment. The ten-year limitations period applies in the case of deficiencies patent or latent and the clock starts ticking on date of occupancy.” Id. at 552. Furthermore, the supreme court went on to state, “[t]he legislative judgment in effect affords owners such as Reich a ten year limited warranty grounded in positive law. The statute incorporates a policy judgment that at the end of ten years following actual occupancy contractors such as Jesco are entitled to close their books on the chicken house project.” Id. The supreme court continued its opinion with a discussion of Reich’s claim of fraudulent concealment and argument that such a claim, if proven, tolled section 15 — 1— 41. Id. In finding that Reich could not prove fraudulent concealment, the supreme court began its analysis with the sentence, “Reich and his subrogated co-plaintiff, MFBIC, struggle mightily to evade our settled law.” Id. The court then discussed two cases which involved not a statute of repose, but one of limitation. Id. The statute of repose would not have applied as the cases discussed involved land and not improvements upon the land. Given the supreme court’s discussion of the mechanics of the limitations imposed by section 15-1-41, its reference to the limitations as “settled law,” and the fact that the cases cited during its analysis of Reich’s fraudulent concealment argument did not involve a statute of repose, we interpret its consideration of the argument not as casting doubt upon the unbending finality of the six year limitation imposed by Section 15-1-41, but an exercise bene-fitting academia concerning the merits of a fraudulent concealment claim.

¶ 7. Section 15-1-41 is, without question, a statute of repose. See McIntyre v. Farrel Corp., 680 So.2d 858, 858 (Miss.1996). As such, it differs in treatment from a statute of limitations. Section 15-1-41 states, in pertinent part,

No action may be brought to recover damages for injury to property, real or personal, or for an injury to the person, arising out of any deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property, and no action may be brought for contribution or indemnity for damages sustained on account of such injury except by prior written agreement providing for such contribution or indemnity, against any person, firm or corporation performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property more than six (6) years after the written acceptance or actual occupancy or use, whichever occurs first, of such improvement by the owner thereof....

Miss.Code Ann. § 15-1-41 (emphasis added). By comparison, our general statute of limitations, Section 15-1-59, states as follows, “(1) All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of action accrued, and not after.... ” Miss.Code Ann. § 15-1-49(1) (Rev.2003) (emphasis added). The statute the appellants claim tolls section 15-1 — 11 states,

If a person liable to any personal action shall fraudulently conceal the cause of action from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence might have been, first known or discovered.

Miss.Code Ann. § 15-1-67 (Rev.2003) (emphasis added). The plain language of section 15-1-67 indicates that proof of fraudulent concealment establishes the time which a cause of action accrues to that point in time when the offended knew, or with reasonable diligence, might have known of the fraud. Section 15-1-41 contains no language of when, and under what circumstances, an action accrues. The statute simply states that “no action may be brought” after the statutory limitation of six years has passed. In contrast, the general statute of limitations, section 15-1-49(1), sets the time period in which a claim may be brought to three years after the cause of action accrues.

¶ 8. The supreme court has identified this subtle, yet important, difference. It stated,

A statute of limitation is distinguishable from a statute of repose in the sense that the latter “cuts off the right of action after a specified period of time measured from the delivery of a product or the completion of work. [Statutes of repose] do so regardless of the time of the accrual of the cause of action or of notice of the invasion of a legal right.”

Evans v. Boyle Flying Serv. Inc., 680 So.2d 821, 827 n. 4 (Miss.1996) (emphasis added) (quoting Universal Engineering Corp. v. Perez, 451 So.2d 463, 465 (Fla.1984)). It is clear from section 15-1-67 that a successful claim of fraudulent concealment does set the date of accrual of the underlying cause of action to the time that it was, or should have been, discovered. Furthermore, the applicable statute of limitations for the underlying cause of action may be tolled to the date complying with section 15-1-67. It is equally clear that the six year limitation of section 15-1-41 is not affected by the date of accrual, and, by extension, not tolled by section 15-1-67. Therefore, as we stated in Baldwin, a successful claim of fraudulent concealment does not toll the statute of repose. As it is undisputed that the plaintiffs’ claims were filed more than six years after the chicken houses were occupied, such claims are barred.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF SCOTT COUNTY GRANTING THE DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ„ CONCUR. CARLTON, J., NOT PARTICIPATING.


author: BARNES, J.,

text:
    C.A.M.F., Appellant v. J.B.M., Appellee.
    No. 2005-CA-02227-COA.
    Court of Appeals of Mississippi.
    May 1, 2007.
    Rehearing Denied Sept. 25, 2007.

      William Neal Small, Ronald Louis Taylor, attorneys for appellant.
    Steven Glen Roberts, attorney for appel-lee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. This is an appeal brought by C.A.M.F. (the Mother) from the order of the Chancery Court of DeSoto County modifying the custody of her then ten-year-old son (the Son). By order, the physical and legal custody was changed to J.B.M. (the Father).

¶ 2. The Mother on appeal contends that the chancellor misapplied the controlling legal precedent in custody modification, failed to address the applicable law relating to siblings and custody, committed manifest error in several evidentiary matters by the wrongful inclusion or exclusion of evidence, and adopted findings and conclusions not supported by the record.

¶ 3. We find no reversible error and affirm the chancellor’s judgment.

FACTS

¶4. The Mother and Father were divorced on April 14,1999, in Shelby County, Tennessee. Their only child, a son, was born on March 5, 1995. The Mother remarried on May 28, 1999, and subsequently had another son with her new husband.

¶ 5. On September 26, 2003, the Father filed a petition in DeSoto County Chancery Court to enroll and modify the final divorce decree from Shelby County, Tennessee, which granted the Mother a divorce on the ground of cruel and inhuman treatment and awarded her custody of the minor child. The Shelby County Chancery Court declined jurisdiction, and the case continued in DeSoto County, which is now the residence of both parties.

¶ 6. The Father testified that he instituted the proceeding to modify custody after he found out some matters of concern about the Mother’s new husband (M.A.F.)(“Mike” ). First, the Father learned of allegations that Mike had taken nude photographs of the Son, not showing the child’s face, when he was approximately six years old. According to the Father’s testimony, a sheriffs department detective had asked the Father about the photographs. There was also testimony that the Son had been upset by the photographs.

¶ 7. Next, the Father learned that in Mike’s prior divorce proceeding in Rankin County there was testimony that Mike, then using his middle name, was found to have repeatedly exposed himself to neighbors, relatives, and babysitters. The Father ultimately obtained certified copies of the divorce proceedings and provided them to his attorney.

¶ 8. The Father’s mother (the Paternal Grandmother) testified that four years earlier she had gone to the Mother and her new husband’s house to pick up the Son for the day and when she drove up Mike was standing at the door completely naked and in full view. She testified that Mike knew that she was coming. She also testified that on another occasion she brought the Son home from an outing and saw Mike standing in the pool without any clothes on, while the Mother and the other child were nearby fully clothed.

¶ 9. The Paternal Grandmother also testified that, on an occasion when she came to the custodial residence to pick the Son up for a wedding, the Son emerged from the home visibly distraught and told her that Mike had been choking the Mother and would not stop. The grandmother indicated that the Son was crying and seemed frightened when he made the statement. The Mother later told the Paternal Grandmother that she and Mike had been playing around and that the Son had the wrong impression of what had happened.

¶ 10. R.K.F. (“Rita”) testified that she was married to Mike for two months in 1995. She testified that he had a habit of walking around the house in the nude and standing nude in front of an open window. She stated that nudity was an “issue” with her and with his daughter from a relationship prior to his marriage to Rita.

¶ 11. S.M.D. (“Susan”) testified that she and Mike had a daughter in 1992 and that he was using his middle name then. Susan testified that when her daughter was two months old, she had an argument with Mike during which he shoved and pushed her, which lead to her leaving him. She also testified that he exposed himself to several people during their relationship, including two babysitters. Susan testified that she had been in litigation in Rankin County concerning Mike’s inappropriate behavior around their daughter. Susan testified that Mike had not seen his daughter for six years and had never sent any child support to her.

¶ 12. Melissa Gardner, the guardian ad litem for Mike and Susan’s daughter, testified that there was never a final disposition of the custody in that case because Mike disappeared, failing to respond to any telephone calls or letters about the case.

¶ 13. Mike testified and acknowledged that he used a different name in Rankin County than he did in DeSoto County. He also admitted that he had not paid child support for his daughter. He admitted that on different occasions that babysitters had seen him naked. He also admitted to having been accused of inappropriate behavior toward female employees at River Oaks Hospital, where he had been employed. He denied taking the nude photographs of the Son. The Mother testified that she took the photographs.

¶ 14. In their arguments to the Court, both parties have overstated their relative positions, and the Court has chosen not to discuss the many inaccurate statements made by the parties in their briefs to the Court.

STANDARD OF REVIEW

¶ 15. The standard of review in child custody cases is quite limited, and in order to reverse a chancellor he must be manifestly wrong, clearly erroneous or have applied an erroneous legal standard. Hensarling v. Hensarling, 824 So.2d 583, 587(¶7) (Miss.2002); Williams v. Williams, 656 So.2d 325, 330 (Miss.1995); Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994). The Court reviews de novo whether the trial court applied the proper legal standard in deciding a custody modification. Morgan v. West, 812 So.2d 987, 990(¶ 8) (Miss.2002).

DISCUSSION

I. WHETHER THE CHANCELLOR MISAPPLIED THE CONTROLLING LEGAL PRECEDENT IN CUSTODY MODIFICATION

¶ 16. The appellant argues that the chancellor committed manifest error when he misapplied Mabus v. Mabus, 847 So.2d 815 (Miss.2003), Riley v. Doemer, 677 So.2d 740 (Miss.1996), and Albright v. Albright, 437 So.2d 1003 (Miss.1983). It is the appellant’s specific contention that the chancellor did not follow the procedure in Mabus, did not find any “adverse effect” on the child as a result of the alleged “change in circumstance,” did not find either a dangerous or illegal environment in the custodial home, and proceeded to consider the factors in Albright and change custody based on speculation as to future harm.

¶ 17. In this case the chancellor did in fact discuss and apply the cases which the Mother contends were misapplied. In Mabus, the Court stated that the noncustodial parent must prove “(1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child’s welfare; and (3) that the child’s best interests mandate a change in custody.” Mabus, 847 So.2d at 818(¶ 8) (quoting Bredemeier v. Jackson, 689 So.2d 770, 775 (Miss.1997)).

¶ 18. In reaching his conclusion in the present case, the chancellor also quoted extensively from Riley, 677 So.2d at 744 — 45, including the principle that the polestar consideration in any child custody matter is the best interest and welfare of the child, also found in Albright, 437 So.2d at 1005, and Mabus, 847 So.2d at 818(¶ 8) (citing Albright).

¶ 19. Based on this case law, the chancellor in the present case considered all of the factors listed in Mabus and found that, as to the first prong of Mabus, the nude photographs of the Son and other questionable conduct by Mike constituted “a substantial and material change in circumstances.” As to the second Mabus prong, the chancellor found that while the “substantial and material change in circumstances may not have at this time adversely affected the child, ... this Court is not obligated to wait until such adverse change has occurred.” Under the third prong of Mabus, the chancellor thoroughly considered and discussed the Albright factors in finding that the best interests of the Son would be served by placing physical custody with the Father. We cannot find that the chancellor’s findings of fact and conclusions of law were clearly erroneous nor do we find that an erroneous legal standard was applied. Accordingly, the Court finds that the Mother’s issue is without merit.

II. WHETHER THE CHANCELLOR FAILED TO ADDRESS THE APPLICABLE LAW RELATING TO SIBLINGS AND CUSTODY

¶ 20. The Mother argues that the chancellor abused his discretion and/or committed manifest error when he failed to acknowledge the legal presumption that siblings should be separated only in extraordinary circumstances and failed to acknowledge the guardian’s testimony about the close emotional relationship between the Son and his half-brother.

¶21. None of the cases cited by the Mother holds that siblings cannot be separated. These cases hold that this is but one factor, usually in the context of Albright, to be considered by the court in matters of custody. See Sellers v. Sellers, 638 So.2d 481, 484 (Miss.1994); Steverson v. Steverson, 846 So.2d 304, 306(¶ 10) (Miss.Ct.App.2003); MeWhirter v. MeWhirter, 811 So.2d 397, 399(¶ 7) (Miss.Ct.App.2001); Moore v. Moore, 757 So.2d 1043,1050(¶ 32) (Miss.Ct.App.2000).

¶ 22. In Sparkman v. Sparkman, 441 So.2d 1361, 1362 (Miss.1983) (quoted in Sellers, 638 So.2d at 484), the court noted that it “has never adopted any per se rule to the effect that children should not be separated, in the absence of a showing of absolute necessity for the child’s welfare .... ” There was no such showing in this case.

¶23. There was no requirement that the chancellor specifically address the question of siblings and custody. This is not a separate Albright factor but a question which the chancellor may consider along with the best interest of the child. See Albright, 437 So.2d at 1005. We find no error on the part of the chancellor.

III. WHETHER THE CHANCELLOR COMMITTED ERROR IN THE ADMISSION AND EXCLUSION OF EVIDENCE

¶24. Since several of the Mother’s issues concern whether the chancellor committed error in the admission of evidence, particularly in the form of testimony, these issues will be discussed together.

¶ 25. The rule is that the admissibility of evidence rests within the chancellor’s discretion, and the Court will not reverse a chancellor’s ruling unless his judicial discretion is abused. Hall v. State, 611 So.2d 915, 918 (Miss.1992).

ALLOWING TESTIMONY FROM THE STEP-GRANDMOTHER

¶ 26. The Mother argues that the chancellor committed manifest error when he allowed testimony from her step-mother concerning photographs taken of the Son and his half brother. The Maternal Step-Grandmother testified that the Son was upset by the photographs.

¶27. The two photographs of the Son and his younger half brother were allowed to be introduced into evidence and showed the two children’s naked torsos at bath time. The photos were admitted into evidence during the testimony of the Father. The Step-Grandmother later testified that the Son had shown her and her husband (the maternal grandfather) the photographs and identified Mike as the person who took the pictures. She testified further that the Son appeared to be upset by the photographs.

¶28. The Father’s trial counsel argued that the Step-Grandmother’s testimony recalling the Son’s statement identifying Mike as the photographer was properly admitted under M.R.E. 803(25), which provides:

(25) Tender Years Exception. 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: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

The chancellor agreed that the photographing of the Son’s genitals was a form of sexual abuse for purpose of the rule. Here, the Son did not testify nor was there a finding of unavailability which appears of record; however, the testimony of the Step-Grandmother was allowed into evidence.

¶ 29. The Mother argues on appeal that the requirements for application of the tender years exception were not met in this case because: (1) the mere taking of nude photos of a young child at bath time does not constitute an “act of sexual contact performed with or on” the Son, (2) the chancellor failed to find that the “time, content, and circumstances of the statement provide substantial indicia or reliability,” and (3) the Son did not testify at trial and the chancellor failed to find that the Son was unavailable to testify. See M.R.E. 803(25). We agree that the chancellor erred by citing Rule 803(25) as the basis for allowing the Step-Grandmother’s testimony regarding the Son’s identification of Mike as the person who took the photographs at issue. We need not decide whether the taking of the photographs amounted to “sexual contact” within the meaning of Rule 803(25), as the chancellor failed to find that the Son was unavailable pursuant to subsection (b)(2) of the rule. See J.L.W.W. v. Clarke County Dep’t of Human Servs., 759 So.2d 1183 (Miss.2000) (affirming the decision of this Court to remand for new trial a case in which the tender years exception was applied without an adequate finding of unavailability). Accordingly, the chancellor abused his discretion by allowing the Step-Grandmother to testify regarding the Son’s statement identifying Mike as the photographer.

¶ 30. The Father in his appellate brief recognizes that the specific rule used by the court in allowing the testimony into evidence regarding the photographs poses some problem. He proposes as an alternative Rule 803(24) which is the catch-all provision of the hearsay rule and allows for admission of a hearsay statement not specifically covered by the other exceptions. He also cites the well established and familiar rule that where the trial court reaches the proper result it does not matter upon what basis that result was reached, i.e., the court reached the right conclusion for the wrong reason. See Towner v. State, 837 So.2d 221 (Miss.Ct.App.2003). We are not persuaded by this argument.

¶ 31. First, the comment to Rule 803(24) indicates that the catch-all provision should not be utilized with “unfettered discretion which could ultimately devour the hearsay rule.” See also Mitchell v. State, 539 So.2d 1366, 1370 (Miss.1989) (stating that “use of the ‘catchall’ should be carefully considered and applied rarely, so as not to devour the hearsay rule”). Second, the applicability of this exception requires the use of discretion with respect to facts which are not apparent from the record. For example, we cannot determine from the record whether the Son’s statement “is more probative on the point for which it [was] offered than any other evidence which [the Father could] procure through reasonable efforts,” as is required by the Rule. Nor is it apparent whether the Father gave advance notice to the Mother that he intended to introduce the Son’s statement via the Step-Grandmother’s testimony, which is another prerequisite for application of the catch-all exception. However, despite the fact that the chancellor erred in admitting testimony regarding the Son’s statement of identification pursuant to the tender years exception, and notwithstanding the fact that we cannot conclude from the record whether the catch-all provision would provide an alternative basis of admission, we find that any error by the chancellor was harmless.

¶ 32. The only portion of the Step-Grandmother’s testimony which should have been excluded as hearsay was the testimony recalling the Son’s identification of Mike as the person who took the nude photographs. During the line of questioning in which this testimony was elicited, the Step-Grandmother also testified that the Son voluntarily brought the pictures to her, and further, that “[h]e acted like he was upset about them.” Even without the Son’s statement identifying Mike as the photographer, the photographs themselves, as well as the Step-Grandmother’s impression that the Son was “upset about them,” clearly support the chancellor’s conclusion that these photographs were inappropriate and indicative of conditions in the custodial home which were adverse to the Son’s best interests. In light of this conclusion, and considering other evidence of Mike’s inappropriate conduct contained in the record, we find that the admission of testimony regarding the Son’s statement of identification, although error, was harmless error.

ALLOWING TESTIMONY FROM THE GRANDMOTHER

¶ 33. The Mother also argues that the chancellor erred when he relied upon the uncorroborated testimony of her ex-mother-in-law, the Paternal Grandmother, as to statements made by the Son at least five years earlier. The testimony at issue in this assignment of error was elicited during the Paternal Grandmother’s recollection of events that transpired on a day in which she went to pick the Son up for a wedding. The challenged testimony occurred during the following exchange:

Q. [BY FATHER’S ATTORNEY]: On this particular occasion, what was [the Son’s] demeanor when he came out to the car?
A. He looked frightened, and he said, [Paternal Grandmother], [Mike] was choking Mama and he wouldn’t stop.
Q. [ ] I’m sorry, continue.
A. He got into the car and immediately said, [Mike] was choking Mama and he wouldn’t stop.
Q. What was the child’s demeanor while he was talking?
A. He was very frightened. He was crying. And I said, what did you do? He said, I asked — I told him to stop choking my mama and he wouldn’t stop. I said, well, what happened? He said, well, first Mama [threw] a watch at [Mike], and then [Mike] pushed Mama on his bed and started choking her. He was choking her. And he said, then I got a little bit mad, and then Mama was very mad on the couch. That’s I guess — anyway, that’s what he said.

¶ 34. The Mother contends that the court should not have adopted the “excited utterance” exception under Mississippi Rule of Evidence 803(2) in allowing admission of the preceding testimony. Rule 803(2) excepts from the hearsay rule “statements] relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” The rationale for the excited utterance exception is best explained by the comment to Rule 803(2):

The underlying theory of the excited utterance exception is that circumstances may create such an excited condition that the capacity for reflection is temporarily impeded and that statements uttered in that condition are thus free of conscious fabrication.... [T]he essential ingredient is spontaneity. With respect to time element, the issue is the duration of the excited state. This, depending on the exact circumstances of a case, can vary greatly. The declarant need not be a participant but only an observer of the event which triggered the excitement. An excited utterance need only “relate” to the startling event, and, therefore, the scope of the subject matter of the statement may be fairly broad.

¶ 35. The Paternal Grandmother testified that the Son was “very frightened” and that he was crying when he emerged from his home and told her what had occurred between his mother and Mike. From our review of the challenged testimony, it appears that the Son’s statement was both spontaneous and made while he was still under the stress and excitement caused by the event. At the very least, we cannot say that the trial court abused its discretion by allowing the Paternal Grandmother’s testimony repeating the Son’s statements regarding the choking incident. “The competency of excited utterances is a matter largely discretionary with our trial courts.” Stokes v. State, 797 So.2d 381, 386(¶ 14) (Miss.Ct.App.2001) (quoting Davis v. State, 611 So.2d 906, 914 (Miss.1992)). We find no abuse of discretion with respect to this issue and, therefore, this assignment of error is without merit.

ALLOWING TESTIMONY FROM MIKE’S EX-WIFE AND FORMER LOVER

¶ 36. The Mother next complains that it was an abuse of discretion and/or manifest error for the chancellor to admit the testimony of Rita, Mike’s ex-wife, and of Susan, his former lover and the mother of another one of his children. The Mother contends that this was .“about an old case having nothing to do with this Child, this Mother, or this custodial home.” The contention is that this testimony only concerned the contact of the stepfather as it related to a different child, the stepfather’s daughter.

¶ 37. What the Mother failed to note is that the testimony confirmed that during these earlier relationships Mike was habitually naked in front of neighbors, friends, and babysitters even when his own female child was present. While the testimony would not have been proper under Rule 404(a) “for the purpose of proving that he acted in conformity therewith in a particular occasion,” the testimony was admissible to show the general nature of the stepfather’s character. Mississippi Rule of Evidence 405(b) does allow for specific instances of conduct: “In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.”

¶ 38. As noted by the Father, there is no Mississippi case law specifically addressing this issue, but cases from other jurisdictions confirm that similar evidence is admissible. See Leisure v. Wheeler, 828 N.E.2d 409, 418-19 (Ind.Ct.App.2005) (criminal history of the ex-wife’s current husband as admissible character evidence in proceeding to modify custody); see Stone v. Steed, 54 Ark.App. 11, 923 S.W.2d 282 (1996) (evidence of misdemeanor convictions of third parties at the mother’s house reflected on the mother’s morality and was relevant to the best interest of the child and who should have custody); In re K.L.R., 162 S.W.3d 291 (Tex.App.2005) (evidence of a parent’s arrests is admissible evidence in a child custody proceeding).

¶ 39. In Leisure, the Indiana Court of Appeals recited the familiar rule that where “a person’s character is an issue in the case, character evidence has independent relevance and is not offered for the prohibited purpose of showing conforming conduct.” Leisure, 828 N.E.2d at 419 (citing 12 Robert Lowell Miller, Jr., Indiana Practice § 404.103, at 339 (2d ed.1995)). The Leisure court further stated that “[w]hen character has been put in issue 'by the pleadings as typically occurs in child custody cases, evidence of character must be brought forth.” Id. (citing IA John Henry Wigmore, Wigmore on Evidence § 69.1, at 1457 (Tillers rev. 1983) (“The right of a parent to' retain custody of a child may depend on a finding of the fitness of that person as a parent. In these cases, character evidence is of course admissible since what is at issue in the case is a character trait, and if the issue [is] to be resolved on the basis of evidence, evidence of character must be admitted.”)). The Leisure court concluded that “Mother’s current husband’s character is a material issue ... because if custody were to be modified, then he would be living in the same household as [the child] and helping to raise him. Therefore, we cannot say that the trial court erred by admitting evidence of Mother’s current husband’s criminal history.” Id.

¶ 40. In the instant case, evidence of Mike’s past conduct was not introduced to prove that he acted in conformity with that conduct on any specific occasion. Rather, it was introduced to demonstrate Mike’s general character as that character relates to Mike’s and the Mother’s moral fitness, as well as to demonstrate that Mike’s presence in the custodial home constituted a material and adverse change in circumstances. Accordingly, because the determination of the Son’s best interests in this case necessarily required scrutiny of Mike’s character, we find that the chancellor did not err in admission of the testimony concerning Mike’s past conduct. There is no abuse of discretion and the assignment of error is rejected.

NOT ALLOWING EVIDENCE FROM THE INITIAL CUSTODY PROCEEDINGS

¶ 41. The Mother argues that the chancellor misconstrued and misapplied Lackey v. Fuller, 755 So.2d 1083 (Miss.2000) and committed manifest error in refusing to consider the circumstances of the initial custody proceeding, specifically the Father’s alleged history of physical abuse of the Mother. The Mother argues that Mississippi Code Annotated sections 93-23-43 and 93-27-402 mandate that the chancellor must consider such evidence in any modification hearing.

¶42. In Lackey, the chancellor punished the mother for her pre-divorce behavior. The Mother contends that the chancellor in this case is punishing the stepfather for conduct which occurred years before their marriage in a custody case involving a different child. The Mother also contends that the divorce proceedings in Shelby County, Tennessee, were required to show that the Father was physically abusive to his ex-wife. The Mother also seems to insinuate that the failure of the Father’s current wife to testify also was significant to show that the abuse was continuing. Neither of these arguments are supported by any authority beforé the Court and are specifically rejected as improper argument to the Court. The Mother was free to offer her own evidence and testimony at the custody hearing concerning the Father’s character. Her failure to do so cannot give rise to an adverse'inference against the Father nor form the basis of an assignment of error with respect to the chancellor’s decision. Accordingly, this assignment of error is without merit.

IV. WHETHER THE CHANCELLOR’S FINDINGS AND CONCLUSIONS ARE SUPPORTED BY THE RECORD

¶ 43. The Mother argues that the chancellor’s conclusions of fact and law are not supported by competent, substantial and credible evidence in the record. The Mother cites numerous facts and conclusions which she contends are not supported by the record.

¶ 44. Whenever a chancellor’s decision is based on credible evidence, this Court will affirm that decision. Williams, 656 So.2d at 330; Chamblee, 637 So.2d at 860. Or differently stated, this Court may reverse a chancellor’s findings of fact only when there is “no substantial evidence in the record” justifying his findings. Hensarling, 824 So.2d at 586(¶7) (quoting Henderson v. Henderson, 757 So.2d 285, 289 (Miss.2000)).

¶45. Basically, the Mother simply disagrees with the chancellor’s findings of fact and conclusions. First and foremost, there was ample evidence of the stepfather’s repeated nudity, together with his own testimony that he is “usually naked when ... doing [his] active daily living skills.” Contrary to the Mother’s contention, Mike’s nudity was ongoing and not limited to “isolated incidents.”

¶ 46. There was also evidence that the Son was disturbed by the nude photographs, that the Son was upset about Mike choking the Mother, that the Son had strong emotional ties to the Father, that the Father’s employment situation was stable and flexible, and that the moral fitness issue under Albright favored the Father. While there was conflicting testimony, there was also testimony which supported each of these factual findings by the chancellor.

¶ 47. The Court has reviewed the chancellor’s findings and concludes that there was sufficient credible evidence to support the chancellor. Although we find that the chancellor incorrectly allowed testimony of the Step-Grandmother repeating the Son’s identification of Mike as the photographer of the nude photographs, we find that this error was harmless. The nature of the photographs, as well as the fact the Son was upset about the pictures, speak to the inappropriate nature of the pictures and support the chancellor’s findings of fact and conclusions of law. Even without the Son’s identification, there was sufficient evidence for the chancellor to conclude that the photographs were taken in the custodial home, and that the photographs were inappropriate. Accordingly, the chancellor’s findings and conclusions are supported by the record and any argument to the contrary is without merit.

CONCLUSION

¶ 48. For the foregoing reasons, we find no reversible error and affirm the judgment of the Desoto County Chancery Court.

¶ 49. THE JUDGMENT OF THE CHANCERY COURT OF DESOTO COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . Pseudonyms are being used throughout as this is a confidential case.

      . To support the conclusion that custody may be modified where adverse conditions exist although the child has not yet been adversely affected, the chancellor cited Riley v. Doemer, 677 So.2d 740, 744 (Miss.1996). There, the Mississippi Supreme Court stated "that where a child living in a custodial environment clearly adverse to the child’s best interest, somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment.” Id.

      . Although the Mother refers to D.G. as her “ex-Stepmother,” the record indicates that D.G. was married to the Mother’s father at the time the statements were made and at the time of his death. D.G. will be referred to as the Maternal Step-Grandmother or Step-Grandmother in the opinion.

      . We note that this testimony reflected the Step-Grandmother’s recollection of the Son’s actions and emotional state with respect to the photographs. Accordingly, this testimony is not hearsay.

      . We note also that Mississippi Rule of Evidence 404(b) allows the introduction of character evidence by way of evidence of "other crimes, wrongs, or acts ... for other purposes such as ... absence of mistake or accident.’’ Evidence that Mike had exposed himself to others in the past would be relevant to demonstrate that subsequent indecent exposures were not inadvertent or accidental.

      . Section 93-23-43 was repealed effective July 1, 2004; however, section 93-27-402 (Rev.2004) provides that actions involving child custody commenced prior to July 1, 2004, would be "governed by the law in effect at the time the motion or other request was made.”


text:
    Billy NELSON and Gaynelle Nelson, Individually and as Parents and Next Friends of Justin Nelson, a Minor, and as Representatives of All Wrongful Death Beneficiaries of Bobby Nelson, Deceased, Appellants v. BAPTIST MEMORIAL HOSPITAL-NORTH MISSISSIPPI, INC.; William E. Henderson, Jr., M.D., General Partner; Oxford Clinic For Women, A Partnership; Ira Lamar Couey, M.D., General Partner; and R. Blake Smith, M.D., General Partner, Appellees.
    No. 2005-CA-02058-COA.
    Court of Appeals of Mississippi.
    May 8, 2007.
    Rehearing Denied Sept. 18, 2007.

      James W. Kitchens, Margaret P. Ellis, Roderick D. Ward, Jackson, attorneys for appellants.
    Clinton M. Guenther, Greenwood, Robert S. Mink, Jackson, attorneys for appel-lees.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Billy and Gaynelle Nelson filed suit for the wrongful death of their son Bobby Nelson, who was born on April 26, 2001, at Baptist Memorial Hospital in Oxford, Mississippi, and subsequently died on July 14, 2001. After granting an extension of time for service, Judge Andrew Howorth re-cused himself, and his successor, Judge Henry Lackey, vacated the extension for lack of good cause, ruled that the Nelsons had not complied with the statutory requirements for filing a medical malpractice action, and dismissed the claim with prejudice. The Nelsons’ motion to reconsider based on their reliance on the extension and their argument that they complied with the statutory requirements during the extended time was denied. Aggrieved, the Nelsons appeal. Finding error, we reverse and dismiss without prejudice.

FACTS

¶ 2. One of the appellants, Gaynelle Nelson, became pregnant during July or August 2000. She received prenatal care at the Oxford Clinic for Women and was scheduled to receive a C-section. When Mrs. Nelson was admitted to Baptist Memorial Hospital on April 25, 2001, and went into labor, the Nelsons allege a nurse' delivered her baby, Bobby Nelson, but did not call a doctor. Although Mrs. Nelson had been scheduled for a C-section, she alleges that the nurse attempted to manually stretch her cervix to deliver the baby. Shortly after being delivered, Bobby was transferred to North Mississippi Medical Center in Tupelo, where he remained until his death on July 14, 2001.

¶ 3. Approximately one month before the expiration of the statute of limitations, the parents, Billy and Gaynelle Nelson, retained attorneys to represent them in their suit for the wrongful death of Bobby Nelson. The Nelsons filed a complaint on July 9, 2003, prior to the expiration of the statute of limitations on July 14, 2003. The claim alleged that the negligence of Baptist Memorial Hospital (Hospital), Oxford Clinic for Women (Clinic), Dr. William E. Henderson, Jr., and other doctors and employees (Doctors) caused the wrongful death of Bobby. Prior to filing the complaint, the Nelsons did not provide sixty days notice to the Hospital, Clinic, and Doctors as required by Mississippi Code section 15-1-36(15). The original complaint also did not include a certificate stating their attorney had consulted with a doctor about the case, pursuant to section 11-1-58 of the Mississippi Code.

¶ 4. On November 3, 2003, upon motion by the Nelsons, Judge Howorth entered an order granting an additional ninety days to serve process. The Nelsons then sent notice of the suit on November 10. After waiting sixty days, the Nelsons filed an amended complaint, which included a certificate stating their attorney had consulted a qualified expert, and then they served process on the Hospital, Clinic, and Doctors.

¶5. Subsequently, Judge Howorth re-cused himself and the case was assigned to Judge Lackey. The Hospital filed a motion to reconsider the order entered by Judge Howorth granting the Nelsons additional time to complete service of process, to which the Clinic and Doctors joined. Upon reconsideration, Judge Lackey vacated the original order for lack of good cause and dismissed the claim with prejudice. He also found the statute of limitations had expired for the following reasons: (1) failure to give written notice sixty days before filing a medical malpractice claim, (2) failure to include an attorney certificate with the claim, and (3) ineffective service of process.

¶ 6. The Nelsons filed a motion to reconsider, and, on September 27, 2005, Judge Lackey entered an order affirming his pri- or decision. Aggrieved, the Nelsons timely appeal and assert the following issues:

I. Whether Judge Lackey should have reversed the order extending time to serve process when Judge Howorth properly granted it and when the Nelsons detrimentally relied on it.
II. Whether notice was properly given sixty days prior to filing the claim.
III. Whether it was in error to find the Nelsons did not provide an attorney certificate.
IV. Whether the clinic and doctors were properly served with process.
V. Whether the claim should have been dismissed without prejudice.

STANDARD OF REVIEW

¶ 7. We review questions of law with a de novo standard of review. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶ 5) (Miss.2002). This Court also employs a de novo standard to review a trial court’s grant or denial of a motion to dismiss. Harris v. Miss. Valley State Univ., 873 So.2d 970, 988(¶ 54) (Miss.2004).

ISSUES AND ANALYSIS

I. Whether Judge Lackey should have vacated the order extending the time to serve process that was granted by Judge Howorth and relied upon by the Nelsons

¶ 8. Mississippi Rules of Civil Procedure Rule 4(h) requires a plaintiff to serve the summons and complaint on a defendant within 120 days of filing a complaint; otherwise, the judge must dismiss the action without prejudice. Under Mississippi Rules of Civil Procedure Rule 6(b), a court may extend the time a party has to act (1) for cause shown, if within the initial time period, or (2) upon a finding of excusable neglect after the expiration of the time period. A court may grant an extension of time under Rule 6(b), if within the initial 120 day time period, without motion and without notice. Accordingly, a judge may grant an extension of time to serve process under Rule 4(h) prior to the expiration of the original 120 days for service without a showing of good cause. Cross Creek Prods, v. Scafidi, 911 So.2d 958, 960(¶ 5) (Miss.2005). Only after the expiration of the original 120 days must the plaintiff show good cause to receive an extension of time to serve process. Id. “An application under Rule 6(b)(1) normally will be granted in the absence of bad faith or prejudice to the adverse party.” Id. at 960(¶ 7) (quoting 4B Charles Alan WRIght & Arthur R. Miller, Federal PRACTICE and Procedure § 1165, at 522 (3d ed.2002)).

¶ 9. Assuming proper service of process, filing a complaint tolls the statute of limitations until a suit’s dismissal. Canadian Nat’l/Ill. Cent. R.R. v. Smith, 926 So.2d 839, 845(¶ 24) (Miss.2006) (citing Deposit Guar. Nat’l Bank v. Roberts, 483 So.2d 348, 352 (Miss.1986)). The date a plaintiff files an action is the relevant date for statute of limitation purposes, taking into consideration extensions of time to serve process. Crumpton v. Hegwood, 740 So.2d 292, 294(¶ 9) (Miss.1999).

¶ 10. The supreme court has stated that “as a general rule, a successor judge is precluded from correcting errors of law made by his predecessor or changing the latter’s judgment or order on the merits, but this rule does not apply where the order or judgment is not of a final character.” Mauck v. Columbus Hotel Co., 741 So.2d 259, 268(¶27) (Miss.1999) (quoting 48A C.J.S. Judges § 68, at 654 (1981)). A successor judge in an inferior position does not have the authority to vacate the order of a prior judge granting a new trial. Amiker v. Drugs for Less, Inc., 796 So.2d 942, 948(¶ 22) (Miss.2000). Nevertheless, the supreme court reversed a judge’s vacating of a prior judge’s order when a party justifiably relied upon it. Franklin v. Franklin, 858 So.2d 110, 122-23 (¶¶ 41-43) (Miss.2003).

¶ 11. In the present case, prior to the expiration of the 120 days to serve process, the Nelsons made a motion for an extension of time. They did not wait until the 120 days had lapsed to request an extension; therefore, according to Cross Creek, they were not required to meet the heightened good cause requirement. There was nothing to suggest the Nelsons acted in bad faith in making the motion, and no party was prejudiced by the ninety-day extension. The motion stated that a delay in obtaining medical records had forced the Nelsons to wait for their expert to form an opinion as to the merits of the claim. Judge Howorth found sufficient cause in this to grant an extension, and we find it was in error for the successor judge to later vacate the order based on the good cause standard.

¶ 12. Had Judge Howorth not granted . the ninety-day extension on November 3, 2003, the Nelsons would have had four days before the time to serve process expired. Instead of attempting to serve process in those four days, they justifiably relied on this order and served process during the extended time. In Franklin, the court noted that the attorneys had expended substantial time and labor in relying on the judge’s order stating that they would be awarded attorneys’ fees. Franklin, 858 So.2d at 122(¶ 43). Similarly, in the present case, the Nelsons expended the remaining days they had to serve process in rebanee on the judge’s order granting them an additional ninety days to do so.

¶ 13. Judge Lackey vacated the original order extending time to serve process because the plaintiffs failed to show good cause, which he says was “required by the rules;” however, Cross Creek, says that Rule 6(b) only requires a plaintiff to show cause when filing.a motion for an extension of time outside the original 120 day time period. Furthermore, the Nelsons justifiably relied on the judicial order and served process after the initial 120 days, but during the ninety-day extension, whereas they would have had four days remaining to do so had the extension not been granted. We, therefore, find that it was in error to vacate the original order because the Nelsons did not show good cause and also because the Nelsons rebed on the order and served process in the time granted instead of within the original 120 days.

II. Whether the Nelsons properly gave notice sixty days before filing their claim

¶ 14. The statute of limitations to initiate a lawsuit against a medical provider is two years from the alleged negbgent act. Miss.Code Ann. § 15-1-36(2) (Rev. 2003). A plaintiff may not begin an action against a healthcare provider based on professional negbgence until the plaintiff gives the provider sixty days written notice of his intent to bring suit. Miss.Code Ann. § 15-1-36(15) (Rev.2003). Service of this notice will extend the time to com-menee an action by sixty days if the notice is served within sixty days of the expiration of the statute of limitations. Id. This serves to toll the statute of limitations for sixty days, essentially allowing for a statute of bmitations of two years and sixty days. Pope v. Brock, 912 So.2d 935, 939 (¶¶ 19-20) (Miss.2005).

¶ 15. The supreme court has affirmed a trial court’s dismissal of a medical malpractice claim when the plaintiff failed to serve the statutorily required' notice, pursuant to section 15-1-36(15), at least sixty days before initiating the action. Pítalo v. GPCH-GP, Inc., 933 So.2d 927, 929 (¶¶ 6-7) (Miss.2006). The plaintiff in Pítalo filed a complaint in September 2003 and an amended complaint in June 2004, but she never sent the required notice to the defendants. Id. at 928(¶ 3). Similarly, Píta-lo also did not file a certificate with her complaint stating that her attorney had consulted a qualified expert concerning the claim, as required by section 11-1-58. Id.

¶ 16. Relying on its decision in Pítalo, the supreme court recently ruled that dismissal without prejudice was proper when a plaintiff failed to serve notice on a defendant at least sixty days before commencing an action. Arceo v. Tolliver, 949 So.2d 691 (¶ 16) (Miss.2006). Although Tolbver filed a complaint and two amended complaints throughout June and July 2004, the court noted that it was not until November 2004 that she tried to provide the defendants with the statutorily required notice. Id. at (¶ 3).

¶ 17. In the present case, the Nelsons made no effort to serve notice prior to filing the original complaint, so in this respect, it is similar to Pítalo and Arceo. It was not until after Judge Howorth granted an extension of time to serve pro-eess that the Nelsons attempted to give the required notice. The Nelsons filed their claim on July 10, 2003, and argue they gave notice on November 10, 2003, sixty days before filing their amended complaint. Nevertheless, they did not provide notice before filing their initial complaint, as required by the statute. Failing to send the notice was an “inexcusable deviation” from the requirements of section 15-1-36(15), and it warrants dismissal. Pítalo, 933 So.2d at 929(¶ 7). Therefore, based on the Nelsons’ failure to give notice before filing their initial claim and the recent supreme court decisions in Pítalo and Arceo, we find that it was proper to dismiss the action.

III.The Nelsons failed to provide a certificate stating that their attorney had consulted a professional regarding the claim

¶ 18. A complaint in a medical malpractice suit must be accompanied by a certificate stating that the plaintiffs attorney has consulted a qualified expert concerning the claim and, based upon such consultation, the attorney reasonably believes there is a basis for the action. Miss. Code Ann. § 11-1-58(1) (Rev.2002). In Walker v. Whitfield Nursing Ctr., Inc., 931 So.2d 583, 592(¶ 33) (Miss.2006), the supreme court affirmed the dismissal of an action when the plaintiff did not include a certificate with the complaint and also failed to state that an expert had been consulted until depositions began. The plaintiff in Walker filed her complaint on April 7, 2004, and served the defendants with that complaint on April 14. Id. at 585(¶ 1). Walker never filed the certificate required by section 11-1-58 until September 8, 2005, and then she only did so by attaching it to a response to Whitfield’s motion for summary judgment. Id. at 586 (¶¶ 4-7).

¶ 19. The present case is distinguishable from Walker in that the Nelsons clearly had an expert, from whom they received a professional opinion. The court in Walker noted that the plaintiff responded to an interrogatory request by stating that she had not contacted nor consulted an expert regarding the case. Id. at 586(¶ 3). Furthermore, the Nelsons did not wait over a year, and partially into discovery, to remedy their failure to file the certificate. Unlike Walker, at the time the Nelsons served the amended complaint, it included the attorney’s certificate. The Hospital, Clinic, and Doctors were not forced to respond to a complaint lacking an attorney’s certificate. The Nelsons also attached their certificate to the amended complaint, not to a response to a motion to dismiss, as the plaintiff did in Walker.

¶ 20. The Nelsons did not file the required certificate with their original complaint; therefore,.the claim was properly dismissed. We note, however, that the failure to file a certificate in this case is far less egregious than the situation in Walker, which was a claim filed much later after section 11-1-58 came into effect.

IV. Whether the Nelsons properly served process on the Clinic doctors

¶21. We do not address this issue, because we find that the trial court should have dismissed the original claim for failing to provide the statutorily required sixty days notice; therefore, this issue is moot.

V. Whether the action should be dismissed with or without prejudice

¶ 22. Dismissal without prejudice prevents the plaintiff from being barred from filing a new suit on the same cause of action. Williams v. Mid-South Paving Co., 200 Miss. 103, 121, 25 So.2d 792, 798 (1946). On the other hand, dismissal with prejudice, which prevents the plaintiff from bringing a new suit based on the same cause of action, is extreme and harsh, and only the most egregious cases warrant such dismissals. Miss. Dep’t of Human Servs. v. Guidry, 830 So.2d 628, 632(¶ 13) (Miss.2002). As previously stated, the supreme court has recently ruled that dismissal without prejudice was proper when a plaintiff failed to serve notice upon medical provider defendants at least sixty days before initiating an action. Ar-ceo at (¶ 16).

¶ 23. The statute at issue in this case had only been in effect a few months when this case was filed, and the Nelsons tried to remedy their failure to comply with those statutes. Their failure to attach the attorney certificate and to file sixty days notice do not rise to the level of egregiousness sufficient to warrant dismissal with prejudice. This is so especially in light of the fact that they attempted to correct those errors before they ever served process. We find, therefore, that the original complaint filed by the Nelsons should be dismissed without prejudice for failing to attach an attorney’s certificate and for failing to give prior sixty days notice.

¶ 24. THE JUDGMENT OF THE LAFAYETTE COUNTY CIRCUIT COURT IS REVERSED AND THE ACTION IS DISMISSED WITHOUT PREJUDICE. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ROBERTS AND CARLTON, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.

      . The Nelsons’ brief states they filed a claim on July 10, but the appellees’ brief and the record note that the original complaint was filed on July 9.

      . It seems they also tried to remedy their earlier errors by giving sixty days notice and then filing an amended complaint with a certificate.

      . The original August opinion dismissed the action with prejudice, but the supreme court substituted an opinion in November that dismissed the action without prejudice.