author: EASLEY, Justice, GRAVES, Justice,

text:
    Larry GREEN v. ALLENDALE PLANTING COMPANY and the KBH Corporation.
    No. 2005-CA-02271-SCT.
    Supreme Court of Mississippi.
    April 26, 2007.

      Ellis Turnage, Cleveland, attorney for appellant.
    Timothy Michael Peeples, Wilton V. Byars, III, Oxford, Charles S. Hewins, Lawrence D. Wade, Greenville, attorneys for appellees.
   EASLEY, Justice,

for the Court.

¶ 1. This case is an action for damages for personal injuries brought by Larry Green (Green) in the Circuit Court of Bolivar County against his employer, Allendale Planting Company (Allendale), and The KBH Corporation (KBH), collectively “the Defendants,” for injuries he sustained while attempting to determine the cause of an unusual noise he heard while operating a mule boy, owned by his employer, Allen-dale, and manufactured by KBH. The Defendants filed a Motion for Summary Judgment. The trial court originally granted summary judgment in part to both Defendants. The Defendants later filed a Motion to Reconsider. Upon review of the Motion to Reconsider, the trial court granted summary judgment in favor of both Defendants on all issues. Feeling aggrieved, Green now appeals the judgment of the Bolivar County Circuit Court to this Court.

FACTS

¶ 2. Allendale purchased the mule boy in question from KBH approximately three to four weeks prior to Green’s accident. Allendale did not make any modifications to the mule boy and had not experienced any problems with it. Although it was Green’s first cotton season operating the mule boy, he was an experienced farm hand. Green had operated various farm implements that could be attached to tractors such as cultivators, plows, bush hogs, disks, and grain carts. Moreover, Green had been employed at Allendale for approximately twelve years before the accident.

¶ 3. On September 28, 2001, the day of the accident, Green was operating the mule boy when he heard a loud, unusual noise coming from the back of the mule. Green left the mule boy running and stepped down from the tractor. In order to determine the exact cause of the noise, Green knelt down in close proximity to the four metering chains. Green lost his balance. In an attempt to reestablish his balance, Green’s hand came into contact with the moving chains, and he lost three fingers.

¶ 4. Green filed suit against Allendale alleging multiple theories of employer liability. Green later amended his original complaint to assert a product liability claim against KBH. Both Defendants filed a motion for summary judgment. The trial court originally granted summary judgment in part to both Defendants. The trial court initially found that Allendale was entitled to judgment as a matter of law on the following issues: (1) defective design and/or lack of safety guard; (2) failure to adequately supervise, instruct, and/or train; and (3) failure to warn. However, the trial court found that a genuine issue of material fact existed on the following issues: (1) failure to properly maintain, repair, and inspect the mule boy to discover hazards, and (2) failure to maintain a safe working environment. The trial court also initially found that KBH was entitled to judgment as a matter of law on the issue of failure to warn. The trial court held that Green knew of the danger associated with the moving chains and that no amount of warning would have prevented his injuries. However, the trial court found that a genuine issue of material fact existed regarding whether Green voluntarily and deliberately exposed himself to the danger posed by the moving chains.

¶ 5. Upon review of the motion to reconsider, the trial court found that both Allen-dale and KBH were entitled to judgment as a matter of law on all issues. The trial court held that Green had failed to set forth any specific facts to support his allegations that Allendale was negligent. As to Green’s defective design claim against KBH, the trial court concluded that there was no genuine issue of material fact regarding whether he voluntarily and deliberately exposed himself to a dangerous condition. The court further held that Green’s own testimony established that his actions were deliberate and voluntary. Green voluntarily knelt down next to the moving chains, with the knowledge that they were dangerous. His actions were sufficient to indicate acceptance of the dangerous condition.

¶ 6. Aggrieved by the trial court’s judgment, Green timely filed notice of his appeal. Green later filed with this Court a motion for an extension of time to file his appellate brief. This Court granted the extension and explicitly stated that Green’s appellate brief was due on June 21, 2006. However, both Allendale and KBH raise on appeal that the certificate of service on Green’s brief reflects that he did not file his brief until June 28, 2006, two days after the deadline. Rule 31 of the Mississippi Rules of Appellate Procedure (M.R.A.P.) states:

If an appellant fails to file the appellant’s brief within the time provided by this rule or within the time extended, the appeal may be dismissed on motion of the appellee or on the Supreme Court’s own motion as provided in Rule 2.

Rule 2 of the M.R.A.P. states:

When either court, on its own motion or on motion of a party, determines that dismissal may be warranted under this Rule 2(a)(2), the clerk of the Supreme Court shall give written notice to the party in default, apprising the party of the nature of the deficiency. If the party in default fails to correct the deficiency within fourteen (14) days after the notification, the appeal shall be dismissed by the clerk of the Supreme Court.

(Emphasis added).

¶ 7. Although Green’s brief was filed after the deadline, this Court never gave him notice of the alleged default. Additionally, Green’s brief was filed only two days after the deadline, and according to Rule 2(a)(2) of the M.R.A.P., well within the fourteen days this Court gives a party to correct a deficiency. Therefore, this Court finds that Green’s appeal is not dismissed pursuant to Rule 2 of the M.R.A.P.

DISCUSSION

¶ 8. Green contends that the trial court improperly granted summary judgment in favor of Allendale Planting Company and KBH Corporation. In reviewing a trial court’s ruling on a motion for summary judgment, this Court conducts a de novo review and “examines all the eviden-tiary matters before us, including admissions in pleadings, answers to interrogatories, depositions, and affidavits.” Price v. Purdue Pharma Co., 920 So.2d 479, 483 (Miss.2006) (citing Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996), overruled in part on other grounds, Owens v. Miss. Farm Bureau Cas. Ins. Co., 910 So.2d 1065, 1074 (Miss.2005)). “The evidence must be viewed in the light most favorable to the party against whom the motion has been made.” Price, 920 So.2d at 483 (citing Berry, 669 So.2d at 70). “The moving party has the burden of demonstrating that a genuine issue of material fact exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact.” Howard v. City of Biloxi, 943 So.2d 751 (Miss. Ct.App. 2006) (citing City of Jackson v. Sutton, 797 So.2d 977, 979 (Miss.2001)).

¶ 9. “Issues of fact sufficient to require a denial of a motion for summary judgment are obviously present where one party swears to one version of the matter in issue and another party takes the opposite position.” Price, 920 So.2d at 483 (citing American Legion Ladnier Post No. 12 v. Ocean Springs, 562 So.2d 103, 106 (Miss.1990)). “If any triable issues of fact exist, the trial court’s decision to grant summary judgment will be reversed.” Price, 920 So.2d at 484. Otherwise, the decision is affirmed. Id. at 483 (citing Miller v. Meeks, 762 So.2d 302, 304 (Miss.2000)).

I. Whether the trial court erred in granting summary judgment in favor of Allendale.

¶ 10. Green contends that the trial court should not have granted Allendale’s motion for summary judgment. Green argues on appeal that there are genuine issues of material fact that should be resolved by the jury. Contrary to Green’s assertions, Allendale argues that the trial court properly dismissed Green’s claims as a matter of law. Allendale further contends that Green’s negligence was the sole proximate cause of his injuries. Allendale also asserts that Green would not have sustained any injuries if he had stopped the machine and then attempted to investigate its malfunction. By failing to do so, Green voluntary subjected himself to an open and obvious danger.

¶ 11. We find that the trial court did not err in granting summary judgment in favor of Allendale because as a matter of law, Allendale did not breach its duty to provide Green with a reasonably safe work environment, fail to warn or instruct him of the dangers associated with the mule boy, or provide him with a reasonably safe work tool.

A. Duty to provide a safe work environment.

¶ 12. Green argues on appeal that Al-lendale breached its duty to provide him with a reasonably safe work environment by failing to properly maintain and repair the mule boy. This Court has previously held that “an employer owes its employees the nondelegable duty to provide its employees with a safe place to work.” Monroe County Elec. Power Ass’n v. Pace, 461 So.2d 739, 748 (1984). Green offers no evidence to support his claim that Allen-dale failed to provide him with a reasonably safe work environment. In fact, his sworn deposition testimony defeats his claim against Allendale. During his deposition, Green admitted that the mule boy was only approximately three to four weeks old. Green also acknowledged that he inspected and performed the general maintenance of lubricating the metering chains attached to the mule boy every day. Green also admits in his appellate brief that between the date of purchase and the accident, Allendale did not make any modifications to the mule boy.

¶ 18. To avoid summary judgment, the non-movant must set forth specific facts that demonstrate a genuine issue of a material fact that merits trial instead of mere unsubstantiated allegations. Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997). Although Green was injured while working on his employer’s premises, Allendale did not breach its duty to provide him with a reasonably safe work environment. Green’s injuries were the result of his hand getting caught in the moving chains attached to the mule boy. The facts clearly indicate that Allendale was merely an employer who purchased a mule boy. There is no evidence within the record to indicate that Allendale performed any acts or omissions that created an unsafe workplace for Green. Therefore, Allendale is entitled to judgment as a matter of law on this issue. The trial court’s grant of summary judgment was appropriate.

B. Duty to warn, train, or instruct of known dangers.

¶ 14. Green also argues that Allendale failed to warn, train, or instruct him as to the dangers associated with operating the mule boy in the non-dumping position and those dangers disclosed in the manufacturer’s manual. “It is [the] duty of [the] master to warn and instruct his servants as to defects or dangers of which he knows, or in exercise of reasonable care and diligence should know, and of which the servant has no knowledge, actual or constructive.” Cole v. Tullos, 228 Miss. 815, 90 So.2d 32, 36 (1956). A master has no duty to warn of obvious dangers that are apparent and customary in the performance of work. Long v. Woollard, 249 Miss. 722, 163 So.2d 698, 707 (1964) (citing Long Beach v. Spooner, 224 Miss. 246, 79 So.2d 833, 836 (1955)). “A warning of an open and obvious danger would provide no new information to the plaintiff ... If it’s [the thing warned of] already known to the plaintiff, then the warning serves no purpose.” Vaughn v. Ambrosino, 883 So.2d 1167, 1171 (Miss.2004).

¶ 15. In Vaughn, this Court held that in failure to warn cases, the open and obvious defense is still a complete bar to recovery. Id. See Mayfield v. Hairbender, 903 So.2d 733, 735-36 (Miss.2005) (holding that the grant of summary judgment was appropriate because the alleged hazard was open and obvious and known to the plaintiff, prior to her injuries). In Vaughn, the defendant’s former housekeeper brought suit, claiming that the defendant’s dog ran into a ladder that the plaintiff was using, causing the plaintiff to fall and sustain serious injuries. Vaughn, 883 So.2d at 1168. This Court concluded that although the “plaintiff attempted to classify her case as a master/servant matter, rather than a premise liability case involving an invitee, ... [there is no] difference in the master’s duty, and that of an owner or occupier of a premises to an invitee.” Id. at 1170. We further held that the comparative negligence standard applied to the open and obvious defense only when there was a claim of a dangerous condition and not when there was a claim for failure to warn of a dangerous condition. Id. at 1170.

¶ 16. The Court reasoned:

Stated differently, a warning of an open and obvious danger would provide no new information to the plaintiff. Stated still another way, a thing warned of is either already known to the plaintiff, or it’s not. If it’s already'known to the plaintiff, then the warning serves no purpose. If it is not already known to the plaintiff, then the thing warned of was not open and obvious in the first instance.

Vaughn, 883 So.2d at 1170-71.

¶ 17. Similarly, in an older case, Poplarville Lumber Co. v. Kirkland, 149 Miss. 116, 115 So. 191, 192 (1928), this Court held that it was error for the trial court to submit the question of the employer’s liability in not warning the employee to the jury because the warning was unnecessary. The employee in Kirkland was injured while performing his duties of removing the ends of a lumber cut saw. Id. at 191. This Court concluded that the evidence demonstrated that the employee did not need a warning to understand the dangers of his duties. Id. at 192. He knew and appreciated the danger of coming into contact with the cut saw while removing the ends of the timber. Id. Even if the employer had instructed the employee of the danger, it would not have made a difference, because the employee already knew of the danger. Id. See also Yazoo & M.V.R. Co. v. Downs, 109 Miss. 140, 67 So. 962, 963 (1915).

¶ 18. In Downs, the Court held that a railroad employee, whose duties consisted of pulling out spikes holding the old rails together, which was preparatory to placing new rails on the track, was not entitled to a warning because his duties were obviously dangerous to an average workman. Downs, 109 Miss. 140, 67 So. at 963. The Court stated, “[f]rom the facts in evidence we believe that [the] appellant could have rightfully assumed that [the] appellee possessed such experience and judgment ordinarily found in workmen of his grade, and that he was reasonably skilled in the work he was undertaking.” Id.

¶ 19. Applying the standard articulated by this Court on numerous occasions in Vaughn, Mayfield, Kirkland, and Downs, Green needed no warning to understand the danger of coming into close proximity with the moving chains attached to the mule boy.' Green was an experienced farm hand and testified that he thoroughly understood the dangers associated with operating and repairing farm equipment. He operated the mule boy daily and performed the required maintenance to the machine. Thus, it is highly likely that Green had more knowledge about the mule boy than his employer.

¶ 20. Alternatively, even if Allen-dale failed to train or instruct Green on how to properly operate and repair the mule boy or failed to warn him of the danger associated with the mule boy by not providing him with a copy of the owner’s manual, there is no causal connection between those alleged claims and Green’s injuries. The proximate cause of Green’s injuries was his hand getting caught in the moving chains attached to the mule boy when he accidentally lost his balance and fell. No amount of warning, instruction, or training from Allendale would have prevented Green’s injuries. Accordingly, Al-lendale is entitled to judgment as a matter of law on Green’s failure to warn claim. The trial court’s grant of summary judgment was appropriate.

C. Duty to provide a reasonably safe work tool.

¶ 21. Lastly, Green contends that Allendale provided him with a mule boy that had a defective design because it lacked a safety guard to cover the moving chains attached to the mule boy. The Mississippi Products Liability Act (M.P.L.A.) does not provide a cause of action for defective design against an employer who merely purchased a product. Miss.Code Ann. § 11-1-63 (Rev:2002). The statute only governs whether liability should be imposed on entities engaged in the actual production or the sale of goods. Id. See also Harrison v. B.F. Goodrich, Co., 881 So.2d 288, 291 (Miss.Ct.App.2004). Accordingly, Allendale is also entitled to judgment as a matter of law as it relates to this claim. The trial court’s grant of summary judgment was appropriate.

II. Whether the trial court properly granted summary judgment in favor of KBH.

¶ 22. The trial court granted summary judgment in favor of KBH, finding that KBH established a complete defense to Green’s failure to warn and defec-. tive design claims brought pursuant to the M.P.L.A. In Clark v. Brass Eagle, Inc., 866 So.2d 456, 460 (Miss.2004), this Court stated:

The Mississippi Legislature passed the Products Liability Act, Miss.Code Ann. § 11 — 1—63, codifying strict liability law. Smith v. Mack Trucks, Inc., 819 So.2d 1258, 1261 (Miss.2002). While the procedural provisions of the Act became effective for all cases pending on July 1, 1993, the substantive provisions were not effective until July 1, 1994. Id. The Act created a “hodge podge mixture of the consumer expectations and,risk utitlity tests,” for a manufacturer or seller to pass in order to obtain protection if the product causes harm. Id. at 1266-67 (Smith, P.J., dissenting). Miss.Code Ann. § 11 — 1—63(a)(i—iii) provides that in order for a manufacturer or seller of a product to be liable, a claimant must prove by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller:
(i) 1. The product was defective because it deviated in a material way from the manufacturer’s specifications or from otherwise identical units manufactured to the same manufacturing specifications, or
2. The product was defective because it failed to contain adequate warnings or instructions, or
3. The product was designed in a defective manner, or
4. The product breached an express warranty or failed to. conform to other express factual representations upon which the claimant justifiably relied in electing to use the product; and
(ii) The defective condition rendered the product unreasonably dangerous to the user or consumer; and
(iii) The defective and unreasonably dangerous condition of. the product proximately caused the damages for which recovery is sought.

¶ 23. However, according to Green’s appellate brief, he appeals to this Court only the question of whether the trial court erred in finding that Green deliberately and voluntarily exposed himself to the known danger before he accidentally fell and injured his hand. Therefore, Green presents the issue of whether there exists a genuine issue of a material fact that he assumed the risk of his injuries.

¶24. Miss.Code Ann. § 11 — 1—63(d) (Rev.2002) precludes liability for defective design when the plaintiff assumes the risk of his injuries. ' Sub-section (d) provides:

In any action alleging that a product is defective pursuant to paragraph (a) of this section, the manufacturer or seller ■ shall not be liable if the claimant (i) had knowledge of a condition of the product that was inconsistent with his safety; (ii) appreciated the danger in the condition; and (iii) deliberately and voluntarily chose to expose himself to the danger in such a manner to register assent on the continuance of the dangerous condition.

(Emphasis added).

¶ 25. Assumption of the risk applies where a person freely and voluntarily chose to encounter a dangerous condition. Elias v. New Laurel Radio Station, 245 Miss. 170, 179, 146 So.2d 558, 561 (1962). “Assumption of risk arises from a mental state of willingness, or a mental state approaching consent.” Id. The Court defined the doctrine of assumed risk as follows:

On the applicability of the doctrine of assumed risk, incurred risk, etc., 65 C.J. S., Negligence, Sec. 174, p. 849 states: “Accordingly, it has been held to be the rule, generally referred to as the doctrine of assumption of risk, and sometimes referred to as the doctrine of ‘incurred risk’, or ‘taking the risk or hazard’, or ‘running the risk’, that one who voluntarily exposed himself or his property to a known and appreciated danger due to the negligence of another may not recover for injuries sustained thereby, even though he was in the exercise of ordinary care or even of the utmost care. Corollaries of this rule are that to acquiesce in, or consent to, a course of negligent conduct is to assume the risks incident thereto, that one having a choice of reasonably convenient ways assumes the risk of a dangerous one, and that one who voluntarily attempts a rash, imprudent, and dangerous undertaking is to be presumed to have assumed the risk incidental thereto.
“The doctrine, accordingly, can apply only where a person may reasonably elect whether or not he shall expose himself to a particular danger; and it has no application where a continued exposure to risk is due to a lack of reasonable opportunity to escape after the danger is appreciated, or is the result of influence, circumstances, or surroundings which are a real inducement to continue. Thus, if plaintiff surrendered his better judgment on an assurance of safety or a promise of protection he did not assume the risk unless the danger was so obvious and so extreme that there could be no reasonable reliance on the assurance.”
No person can assume a risk that he does not know exists.

Id. at 178-79, 146 So.2d 558 (emphasis added).

¶ 26. Often the question of whether the plaintiff appreciated and understood the risk is a question of fact for the jury, however, “in certain circumstances the facts may show as a matter of law that the plaintiff understood and appreciated the danger.” Herod v. Grant, 262 So.2d 781, 783 (Miss.1972). “However, in the absence of evidence that the injured person knew of the danger, or that the danger was so obvious that he must be taken to have known of it, it cannot be held that he assumed the risk of injury therefrom.” Id. The Court held:

The elements that must be found in order to constitute a defense of assumption of risk are generally stated in some such terms as the following: (l)[k]nowl-edge on the part of the injured party of a condition inconsistent with his safety; (2) appreciation by the injured party of the danger in the condition; and (3) a deliberate and voluntary choice on the part of the injured party to expose his person to that danger in such a manner as to register assent on the continuance of the dangerous condition.

Id. at 782.

¶ 27. In Clark, 866 So.2d at 461-62, this Court found that the trial court’s grant of summary judgment was proper based on the deposition testimony that demonstrated that the plaintiff, Clark, was aware of and appreciated the danger associated with paintball guns, and knew that protective eyewear was readily available. Clark’s deposition testimony also showed that he voluntarily chose to not wear protective eyewear when participating in shooting paintballs. This Court held:

Based on the depositions of Clark and Rico, we find that the trial court did not err in granting summary judgment in favor of Brass Eagle. The facts do not support any other conclusion.
Clark offered no proof that the paintball gun used in the incident failed to function as expected and offered no feasible design alternative which, to a reasonable probability, would have prevented what happened to him. In fact, Clark’s testimony is detrimental to his claim. Clark testified that he was aware that there was protective eyewear available for purchase at Wal-Mart, but he chose not to do so. He was an active participant in shooting paintballs at other vehicles. The evening of the incident at issue here Clark and his friends in his car carried their paintball guns with them for that purpose.
Clark testified that his parents were aware that he had purchased a paintball gun and engaged in shooting paintballs at other friends’ cars. Clark appreciated that there was a danger in shooting at people evidenced by his statement that it was “common sense” not to shoot anyone in the face with a paintball gun. Clark said that he guessed it was “common sense” to not shoot anyone in the eye. No one playing the “game” wore protective masks or eyewear.
Rico’s testimony further supports the trial court’s decision to grant summary judgment as to Brass Eagle. While Rico used a friend’s paintball gun to shoot Clark, Rico’s dad had bought a Brass Eagle Talon paintball gun for him the day of the incident. Rico chose not to read any of the warnings or instructions on the side of the gun, in the manual or on the package. Rico was familiar with the paintball gun, having used other identical paintball guns in the past. Rico stated that “paint ball wars” were played by several people by riding around shooting paintballs at each others parked or moving cars.
Rico testified that he knew it was dangerous to shoot someone in the eye with a paintball gun. Rico acknowledged that he knew protective masks were available. Rico also did not use any protective eyewear. Rico stated that he knew the purpose of the protective mask was to protect the eyes and the face from paintballs.

Id.

¶ 28. In contrast to Clark, where the Court found the grant of summary judgment in favor of the defendant to be proper, the Court in Pargo v. Electric Furnace Co., 498 So.2d 833 (Miss.1986), concluded the grant of summary judgment was improper because a jury question existed as whether the employee assumed the risk. Pargo, 498 So.2d at 835-36. In Pargo, unlike the case sub judice and Clark, the plaintiff stated in his sworn affidavit that he was unaware of the dangerous nature of the salt bath machine and the possible consequences of having physical contact with the machine. Id at 834. Further, other employees testified that the employer had contemplated installing precautionary measures, but the employer decided that safety devices were not necessary. Id. at 834-35.

¶ 29. The Court held that were genuine issues of material fact as to the extent of the danger involved, whether the danger was attributable to the alleged design defect of the salt machine, and whether the employee assumed the risk of his injuries. Id. at 835-36. See also Daves, 222 So.2d at 412-14 (The plaintiff, following his employer’s instructions, drove the truck across the levee in wet conditions. When the truck became stuck, the plaintiff faced the choice of dumping his gravel load or attempt to turn around with heavy load. The truck turned over when the plaintiff attempted to dump the load in order to lighten the truck. The Court found that a jury question existed whether the plaintiff assumed the risk.).

¶ 30. In Harrist v. Spencer-Harris Tool Co., 244 Miss. 84, 89-90, 140 So.2d 558, 558-59 (1962), the Plaintiff fell from a ladder that he attempted to climb and sued the manufacturer of an oil drilling rig for negligence in constructing a ladder which had the lower rungs angled at a slant below and inside the upper rungs. The Court applied the open and obvious rule, stating:

If we assume there were defects, we think they were apparent and obvious to a casual observer ...
No duty rests upon a manufacturer or seller to warn a purchaser of a dangerous design which is obvious. If this were not true, a manufacturer could not design and sell a pocket knife, axe, planer or gun.

Id. at 562.

¶ 31. In Hedgepeth v. Fruehauf Corp., 634 F.Supp. 93, 98-99 (S.D.Miss.1986), the plaintiff sued his employer, Capitol Transport Company, and Fruehauf, the manufacturer of the tanker trailer from which the plaintiff slipped and fell. Applying Mississippi law, the District Court for the Southern District of Mississippi, held:

The court is Erie-bound, however, in the absence of any sign from the Mississippi Supreme Court that this defense is repudiated or limited in some fashion, to hold that a manufacturer is under no duty to warn or adopt alternative designs when the danger associated with the use of a product is open and obvious to the user. Plaintiffs testimony at trial unequivocally established that the danger of walking in oil-slick cowboy boots on a tilted, metal tanker surface covered with oil was open, obvious and apparent to him.
Additionally, and as an alternative to the court’s conclusion that judgment should be entered in favor of defendant on grounds that the danger was open and obvious to Steve Hedgepeth, the ■ court concludes that Hedgepeth assumed the risk of his injury at the time he mounted the tanker top. Under Mississippi law, the defense is applicable when defendant can show the existence of three elements at the time of plaintiffs injury: (1) knowledge on the part of the injured party of a condition inconsistent with his safety; (2) appreciation by the injured party of the danger in the condition; and (3) a deliberate and voluntary choice on his part to expose his person to that danger in such a manner as to register assent to the continuance of the dangerous condition. Macleod v. Written [McLeod v. Whitten], 413 So.2d 1020, 1022 (Miss.1982). Whether such injured party assumed a particular risk of harm is measured by a subjective standard, what the injured party actually knew, rather than the “reasonable man” standard. Alexander v. Conveyors & Dumpers, Inc., 731 F.2d 1221, 1223-24 (5th Cir.1984); Herod v. Grant, 262 So.2d 781, 782 (Miss.1972).

¶ 32. Here, Green admitted in his deposition testimony that he had knowledge and appreciated the dangerous condition of the mule boy. Green testified that the chains could be seen moving when the mule boy was running. In fact, he stated that “anybody could see the chains moving.” The mule boy operated by a piece of metal running between four sets of chains. The tractor had to be turned on for the chains to move. Green testified that there was nothing wrong with the mule boy. In fact, he stated that the mule boy was new. Green testified that when using any piece of farm equipment, he used his common sense. Green testified that he was aware that farm equipment, especially a piece of equipment with a moving part, can be dangerous. Green testified that he was aware that the chains were moving and the tractor was running when he went to look at the mule boy.

¶ 33. Green takes issue with the trial court’s finding that he voluntarily and deliberately approached the dangerous condition. Nothing was presented to the trial court that indicated that Green was instructed or encouraged to get near the mule boy’s moving chains. When Green got off the tractor, he did not turn the mule boy off before approaching it. Green does not allege that the on/off switch was defective or failed to operate. He simply failed to turn off the machine before getting near it. Green clearly testified that the tractor was still on and the chains were still moving when he approached the mule boy. Green testified that he was not trying to repair the mule boy.

¶ 34. Green conceded that he was aware that the machine was dangerous. Green testified in his deposition that he knew if he got too close, he would be pulled into the moving chains. Yet, he ignored the danger and approached the running mule boy. Green testified that he lost his balance when he tried to squat down; he then slipped. When he tried to keep from falling, he put out his hand to catch himself. His hand was grabbed by the machine, and he was injured.

¶ 35. Here, the record reveals from Green’s deposition that he understood and appreciated the danger. Further, the moving chains were open and obvious to Green. Green proceeded to approach the mule boy without first turning off the machine, even though he appreciated that it was a dangerous situation. The trial court was correct in granting summary judgment in favor of KBH.

CONCLUSION

¶ 36. We find that the trial court did not err in granting summary judgment in favor of Allendale Planting Company and The KBH Corporation. Therefore, the judgment of the Circuit Court of Bolivar County, Mississippi, is affirmed in toto.

¶ 37. AFFIRMED.

SMITH, C.J., WALLER, P.J., CARLSON AND DICKINSON, JJ., CONCUR. RANDOLPH, J., CONCURS IN PART. GRAVES, J„ CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ AND RANDOLPH, JJ. COBB, P.J., NOT PARTICIPATING.

GRAVES, Justice,

Concurring in Part and'Dissenting in Part:

¶ 38. I concur with the majority’s finding that the trial court did not err in granting summary judgment in favor of Allendale Planting Company. However, I disagree with the majority’s finding that the trial court did not err in granting summary judgment in favor of KBH Corporation. Therefore, I respectfully dissent to the majority judgment as it relates to KBH Corporation.

¶ 39. The majority erroneously concludes that KBH established an affirmative defense to Green’s defective design claims. “Assumption of the risk is [most often] a jury question in all but the clearest of cases.” Daves v. Reed, 222 So.2d 411, 415 (Miss.1969) (omitting citations). Nevertheless, the majority contends that the danger of coming in close contact with the moving chains was so obvious that the trial court could conclude as a matter of law that Green assumed the risk of his injuries, by deliberately and voluntarily exposing himself to a known danger. Green accidently fell and injured his hand. He did not voluntarily expose himself to a known danger. A jury question exists as to whether Green’s injuries were the result of KBH’s failure to install a safety guard to cover the metering chains.

¶ 40. The majority correctly asserts that Green was aware of the danger of coming in close contact with the moving chains attached to the mule boy. However, the majority erroneously concludes that Green’s failure to turn off the mule boy before approaching it was an indication that he voluntarily and deliberately chose to expose himself to a dangerous condition.

¶ 41. Although Green placed himself in close proximity to the moving chains attached to the mule boy, he did not deliberately and voluntarily choose to place his hand inside the machine. Green’s hand got caught in the machine when he acci-dently fell. Therefore, a jury question exists as to whether Green’s injuries were the result of the acts or omissions of KBH and its failure to install a safety guard to cover the metering chains. The affidavits of Green’s expert, Robert T. Tolbert, and the OSHA regulations raise a fact question as to whether Green’s injuries may have potentially been prevented by attaching a safety guard over the moving chains. See also Lenoir v. Porter, 672 F.2d 1240, 1245 (5th Cir.1980) (holding a jury question existed as to whether the employee’s hand would have got caught in the machine if the limit bar had been present). Accordingly, I would reverse and remand the grant of summary judgment in favor of KBH back to the trial court for a decision on the merits.

DIAZ AND RANDOLPH, JJ., JOIN THIS OPINION.

      . According to KBH, a mule boy is a tractor-pulled and powered farm implement manufactured by KBH designed to receive cotton from a cotton picker in the field and then transport it to ‘module builders. After a cotton picker’s bin is full, the cotton is dumped from the cotton picker’s bin into the mule boy's basket. The mule boy’s hydraulic system lifts the basket above the module builder and tilts it into a dumping position so that the cotton can be transferred into the module builder for compacting. When the mule boy is elevated to the dumping position, there are four sets of metering chains connected with “chain slat” crossbars which are designed to allow an exact amount of cotton to be unloaded into the module builder. The metering chains rotate around what is the mule boy’s lower side when raised and activated, and the cotton is deposited in a controlled manner by the tractor driver into the module builder below.

      . While attempting to remove the ends, the employee stepped on the pile of ends, and slipped and struck the saw, resulting in an injury to his right hand and arm. Kirkland, 115 So. at 191.


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Jennifer D. Rollins TAYLOR, Appellant v. SOUTHERN FARM BUREAU CASUALTY COMPANY and CCC Information Services, Inc., Appellees.
    No. 2005-CA-02215-COA.
    Court of Appeals of Mississippi.
    April 3, 2007.

      Joseph R. Dulaney, Tunica, attorney for appellant.
    Arnold U. Luciano, Gerald H. Jacks, J. Walker Sims, Southaven, Timothy B. Hardwicke, attorneys for appellees.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   MYERS, P.J.,

for the Court.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶ 1. In April 2001, Jennifer D. Rollins Taylor was involved in an automobile accident in Tunica County, Mississippi. The accident resulted in significant damage to her vehicle and Taylor subsequently filed an insurance claim with her insurer, Southern Farm Bureau Casualty Insurance Company (Farm Bureau), for the damage to her vehicle. After an investigation, Farm Bureau declared Taylor’s vehicle a “total loss.” Using a valuation prepared by CCC Information Services, Inc. (CCCIS), Farm Bureau valued Taylor’s 1999 Ford Escort at $8,321.25, and tendered a check in that amount, together with a copy of the appraisal prepared by CCCIS, to Taylor’s attorney. Taylor accepted the amount offered by Farm Bureau, but thereafter, filed suit against both Farm Bureau and CCCIS in the Circuit Court of Tunica County. Taylor’s complaint alleged breach of contract, statutory fraud under the Mississippi Consumer Protection Act (MCPA), Mississippi Code Annotated section 75-24-5 (Rev.2000), and common law fraud against Farm Bureau. The complaint also alleged conspiracy to commit both statutory and common law fraud against CCCIS. CCCIS and Farm Bureau subsequently filed joint and separate motions to dismiss under Mississippi Rule of Civil Procedure 12(b)(6). On November 15, 2005, the circuit court granted Farm Bureau’s and CCCIS’s Rule 12(b)(6) motions to dismiss. Aggrieved by the judgment of the circuit court, Taylor appeals, raising the following issues:

I. WHETHER THE TRIAL COURT ERRED IN ■ GRANTING FARM BUREAU AND CCCIS DISMISSAL UNDER M.R.C.P. 12(b)(6)?
II. WHETHER INSURANCE POLICIES OR THE ADJUSTING OF CLAIMS UNDER INSURANCE POLICIES ARE SUBJECT TO THE MISSISSIPPI CONSUMER PROTECTION ACT, MISSISSIPPI CODE ANNOTATED SECTION 75-24-5?

¶2. Finding that the lower court correctly dismissed Taylor’s complaint for failure to state a claim upon which relief may be granted and that insurance policies or the ■ adjusting of insurance policies are not subject to the MCPA, we affirm.

STANDARD OF REVIEW ■

¶ 3. A motion to dismiss under Mississippi Rule of Civil Procedure 12(b)(6) challenges the legal sufficiency of the complaint and raises an issue of law. T.M. v. Noblitt, 650 So.2d 1340, 1342 (Miss.1995). This Court conducts de novo review on questions of law. Id. When considering a Rule 12(b)(6) motion to dismiss, the trial judge must accept the allegations in the complaint as true and the motion should not be granted unless it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set of facts in support of his claim. Id. However, the decision to grant or deny a motion to dismiss is in the discretion of the trial court and will not be reversed on appeal unless that discretion is abused. State Indus., Inc. v. Hodges, 919 So.2d 943, 945(¶2) (Miss.2006).

DISCUSSION

¶ 4., Taylor’s complaint alleges that Farm Bureau and CCCIS engaged in a scheme to defraud Farm Bureau’s insureds by posturing to the insureds that Farm Bureau had obtained independent automobile valuation reports from CCCIS to determine the dollar amount that its insureds would receive on “total loss” claims. Taylor argues that CCCIS offered its services to Farm Bureau under the promise of lowering Farm Bureau’s “total loss” claims payout; therefore, the valuations provided by CCCIS are biased to result in lower “total loss” .claim payouts by Farm Bureau. Taylor claims that CCCIS achieved its promise of lowering Farm Bureau’s “total loss” claims payouts by appraising the insureds’ automobiles at considerably lower values than the valuations of other nationally accepted valuation providers, such as the National Automobile Dealer’s Association (NADA) and Kelley Blue Book. As to her particular insurance claim, Taylor asserts that CCCIS valued her car at $8,321.25, while the NADA valuation was $9,200.

¶ 5. We review Taylor’s complaint to determine whether she stated any claim upon which the trial court may have granted relief:

I. Count I: Breach of Contract against Farm Bureau

¶ 6. Taylor’s complaint alleges breach of contract against Farm Bureau under the theory that Farm Bureau’s contract with CCCIS for the latter to perform automobile valuations on total loss claims was a material fact which Farm Bureau had a duty to disclose. Under Taylor’s theory, Farm Bureau’s failure to disclose the nature of its business relationship with CCCIS at the time the insurance contract with Taylor was formed violated Farm Bureau’s duty of good faith and fair dealing. While we recognize that a duty of good faith and fair dealing is implicit in every contract for insurance, we are not persuaded that evidence of such a breach was established in Taylor’s complaint. See UHS-Qualicare, Inc. v. Gulf Coast Community Hospital, Inc. 525 So.2d 746, 757 (Miss.1987). Farm Bureau’s alleged violation of its duty of good faith and fair dealing necessarily rests on the failure to disclose its valuation practices at the time of contract formation. In Mississippi, the duty to disclose material facts only arises where there is a fiduciary relationship between the parties. Langston v. Bigelow, 820 So.2d 752, 756(¶ 9) (Miss.Ct.App.2002); see also Frye v. Am. Gen. Fin., Inc., 307 F.Supp.2d 836, 842 (S.D.Miss.2004). The purchase of insurance- is deemed to be an arms length transaction, and accordingly no fiduciary duty arises. Langston, 820 So.2d at 756(¶ 9) (citing Estate of Jackson v. Mississippi Life Ins. Co., 755 So.2d 15, 24(¶ 36) (Miss.Ct.App.1999)). We therefore hold, that in this case, Farm Bureau had no fiduciary duty to disclose its valuation practices to Taylor, and thus, Count I fails to state a claim upon which relief may be granted.

II. Count II: Statutory Fraud by Omission against Farm Bureau

¶ 7. Taylor’s complaint next alleges statutory fraud by omission against Farm Bureau under the MCPA. The MCPA provides in part that “[i]t is prohibited to represent that goods or services are of a particular standard, quality, or grade, if they are another, or to disparage the goods of another by false or misleading facts.” Miss.Code. Ann. § 75-24-5(g)(h) (Rev.2000). In her complaint before the lower court, Taylor argued that the policy of insurance sold by Farm Bureau was “merchandise” within the meaning of the MCPA, and that Farm Bureau’s use of biased valuation reports and failure to disclose the true nature of their relationship with CCCIS, constituted a deceptive trade practice under the MCPA and entitled Taylor to relief. However, in her brief to this Court, Taylor asserts that it is not the insurance policy which is covered under the MCPA, but the car itself. Taylor argues that the car is a “good” within the meaning of the MCPA, and that Farm Bureau is attempting to profit by representing that her car is worth less than its true value.

¶ 8. Since the issue of whether the car, itself, is a “good” covered by the provisions of the MCPA was not put before the lower court, we decline to address the issue here. Miller v. State, 794 So.2d 1065, 1068(¶ 8) (Miss.Ct.App.2001). Rather, we may only evaluate the face of the complaint to determine whether the allegations therein, if accepted as true, state a claim upon which relief may be granted. Therefore, we need only determine whether insurance policies, such as the one here, may be considered “merchandise” under the provisions of the MCPA. Our state courts have yet to rule on this specific issue; however, in Burley v. Homeowners Warranty Corp., 773 F.Supp. 844, 863 (S.D.Miss.1990), the United Stated District Court for the Southern District of Mississippi concluded that a homeowner’s insurance policy was not a “good” or “service” within the meaning of the MCPA. Finding, the logic used in Burley to be persuasive, we hold that the automobile insurance policy at issue here is not “merchandise” subject to the provisions of the MCPA.

¶ 9. Furthermore, Mississippi Code Annotated section 75-24-15(2) mandates that: “[i]n any private action brought under this chapter, the plaintiff must have first made a reasonable attempt to resolve any claim through an informal dispute settlement program approved by the Attorney General.” The record in this case is devoid of any reference to Taylor attempting to resolve this issue through an informal settlement program, and we can only conclude that no such attempt was made. Therefore, even if we were to hold that the insurance policy herein was subject to the provisions of the MCPA, the decision of the lower court to dismiss the action would still have been proper. Accordingly, Count II also fails to state a claim upon which relief may be granted.

III. Count III: Conspiracy to Commit Statutory Fraud by Omission Against CCCIS

¶ 10. Taylor’s complaint also alleges that CCCIS’s overt act of lowering Farm Bureau’s “total loss” claims payouts through the use of deflated automobile valuations constitutes a deceptive trade practice prohibited by the MCPA. Since we have already determined that the insurance policy at issue here is not subject to the provisions of the MCPA, we find that Count III fails to state a claim upon which relief may be granted.

IV. Count IV: Common Law Fraud by Omission Against Farm Bureau.

• ¶ 11. Taylor alleges that Farm Bureau had a fiduciary duty to disclose the nature -of its business relationship with CCCIS, and that the failure to do so, when Farm Bureau had knowledge that CCCIS was using deflated valuation reports, was an overt act in furtherance of a common scheme to defraud, resulting in financial loss to Taylor. In order to state a claim for common law fraud, a plaintiff must allege: (1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted upon by the person and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) reliance upon its truth, (8) a right to rely on the representation, and (9) an injury proximately caused by the reliance on the representation. McLeod v. Jackson, 829 So.2d 722, 726 (¶ 15) (Miss.Ct.App.2002); see also Levens v. Campbell, 733 So.2d 753, 761-62(¶35) (Miss.1999).

¶ 12. In Mississippi, a claim of fraud by omission arises only where the defendant had a duty to disclose material facts purportedly omitted. Langston, 820 So.2d at 756(¶ 9); see also Frye, 307 F.Supp.2d at 842. This duty generally arises only where there is a fiduciary relationship between the parties. Langston, 820 So.2d at 756(¶ 9); Frye, 307 F.Supp.2d at 842. The purchase of insurance is deemed to be an arms length transaction, and accordingly no fiduciary duty arises. Langston, 820 So.2d at 756(¶ 9) (citing Estate of Jackson, 755 So.2d at 24(¶ 36)). The Fifth Circuit has also spoken concerning Mississippi law on this point:

Under Mississippi law, there is no fiduciary relationship or duty between an insurance company and its insured in a first party insurance contract.... Only when a third party relationship exists between the insurance company and the insured does the insurance company acquire ‘control’ of the litigation which gives rise to a fiduciary relationship.

Langston, 820 So.2d at 756(¶ 9) (quoting Gorman v. Southeastern Fidelity Ins. Co., 621 F.Supp. 33, 38 (S.D.Miss.1985)). Finding this case law persuasive, we hold that, in this case, Farm Bureau had no fiduciary duty to disclose its valuation practices to Taylor.

¶ 13. Additionally, we hold as a matter of law that Taylor cannot establish the element of reasonable reliance, a necessary element to establish a claim of common law fraud. Courts in Mississippi have held that where a plaintiff has an opportunity to investigate the statements upon which she allegedly relied, the plaintiff cannot be said to have reasonably relied on those statements. See Martin v. Winfield, 455 So.2d 762, 765-66 (Miss.1984). Taylor had ample opportunity to investigate the valuation of her automobile prior to her acceptance of Farm Bureau’s offer. As demonstrated by Taylor’s reliance on the NADA value for her automobile in her brief to this Court, there are numerous valuation services which provide easily ascertainable valuations against which Taylor could have compared the valuation arrived at by CCCIS for Farm Bureau. Instead, Taylor chose not to investigate the value of her car and accepted the settlement offered by Farm Bureau. Therefore, we hold that Taylor failed to present a prima facie case in her complaint establishing her reasonable reliance on the representations of Farm Bureau or CCCIS. Count IV fails to state a claim upon which relief may be granted.

V. Conspiracy to Defraud by Omissions against CCCIS

¶ 14. Finally, Taylor’s complaint alleges that CCCIS engaged in a conspiracy to commit common law fraud with Farm Bureau through the use of deflated “total” loss valuations. The common elements of a conspiracy to defraud, which a plaintiff must prove, are: (1) a conspiracy, (2) an overt act of fraud in furtherance of the conspiracy, and (3) damages to the plaintiff as a result of the fraud. Delta Chem. & Petroleum, Inc. v. Citizens Bank of Byhalia, 790 So.2d 862, 877(¶49) (Miss.Ct.App.2001). Having already concluded that insurers hold no fiduciary responsibility to disclose their valuation procedures to their first party insureds, we find no overt act in furtherance of a conspiracy on the part of CCCIS. Accordingly, Count V fails to state a claim upon which relief may be granted.

CONCLUSION

¶ 15. The Circuit Court of Tunica County properly dismissed the action filed by Taylor pursuant to Mississippi Rule of Civil Procedurel2(b)(6). Further, insurance policies and the adjusting of insurance policies are not subject to the provisions of the MCPA. Accordingly, the judgment of the circuit court is affirmed.

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

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


author: CHANDLER, J., ROBERTS, J.,

text:
    Larry ADAMS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-00488-COA.
    Court of Appeals of Mississippi.
    April 17, 2007.

      Larry Adams, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   CHANDLER, J.,

for the Court.

¶ 1. Larry Adams appeals from the denial of his motion for post-conviction relief (PCR) by the Circuit Court of Bolivar County. Adams argues that his guilty plea was involuntary, that he received ineffective assistance of counsel, that his sentence was illegal, that his indictment was defective, and that he was entitled to an evidentiary hearing in order to further develop these claims. Having carefully reviewed Adams’s PCR, we find these issues to be without merit. Therefore, we affirm the denial of post-conviction relief.

FACTS

¶ 2. On March 18, 1997, Adams was indicted in a two-count indictment for aggravated assault and armed robbery. Adams pled guilty to both counts at a plea hearing in the Circuit Court of Bolivar County on April 16, 1997. The court accepted Adams’s plea and announced a sentence of twelve years on each count to run concurrently. After the announcement of sentence, the court granted Adams’s request for additional time to wrap up his affairs. The court ordered Adams to report for sentencing in thirty days until which time Adams was to remain at liberty subject to his bail bond. The court ordered Adams to surrender to the Sheriff of Bolivar County at 10:00 a.m. on May 16, 1997. The court reserved the right to reconsider and change Adams’s sentence if Adams failed to report at the time and place ordered. Then, the court asked Adams if he understood. Adams responded affirmatively and stated, “I’ll be there. I don’t need no more time.”

¶ 3. Adams failed to appear. In 1999, he was apprehended in Kansas and extradited to Mississippi. On February 1, 2000, Adams again appeared before the Circuit Court of Bolivar County for a sentencing hearing. Prior to the imposition of sentence, Adams moved to withdraw his guilty plea on the ground that the plea was involuntary. The court denied the motion. The court sentenced Adams to twenty years on each count to run concurrently.

¶ 4. On June 7, 2003, Adams filed a motion for post-conviction relief which was denied by the court on December 10, 2004. Adams appeals. For clarity, we have restated his appellate issues.

STANDARD OF REVIEW

¶ 5. When reviewing the lower court’s denial of a motion for post-conviction relief, this Court will not disturb the lower court’s fact-findings unless they are found to be clearly erroneous. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). When questions of law are raised, our standard of review is de novo. Id.

LAW AND ANALYSIS

I. THE PROCEDURAL POSTURE OF ADAMS’S PCR.

¶ 6. Of necessity we first address the procedural posture of this PCR appeal. Adams’s PCR purported to collaterally attack both his conviction for aggravated assault and his conviction for armed robbery. Mississippi Code Annotated section 99-39-9(2) (Supp.2006) provides that “a motion shall be limited to the assertion of a claim for relief against one (1) judgment only. If a prisoner desires to attack the validity of other judgments under which he is in custody, he shall do so by separate motions.” The record shows that Adams’s convictions of aggravated assault and armed robbery with concurrent twenty year sentencés are contained within two separate judgments of conviction, both entered on February 4, 2000. Adams’s PCR could attack only one of those judgments. Miss.Code Ann. § 99-39-9(2). This Court is without guidance from Adams as to which of the two convictions Adams would select for collateral attack. The lower court gave Adams identical sentences for both convictions. However, Adams’s armed robbery conviction was without the possibility of parole, trusty time, or earned time and, therefore, was the more onerous of the two convictions. Miss.Code Ann. § 47-7-3(l)(d)(ii) (Supp.2006); § 47-5-138.1(2)(d) (Rev.2004); § 47-5-139(l)(e) (Rev.2004); see Wells v. State, 936 So.2d 479, 480(¶ 5) (Miss.Ct.App.2006). Therefore, we find that Adams’s PCR was limited to the assertion of relief against his judgment of conviction of Count II, armed robbery. See Garner v. State, 928 So.2d 911, 913(¶ 5) (Miss.Ct.App.2006).

¶ 7. The next procedural issue pertains to the timing of Adams’s PCR. Adams bears the burden of demonstrating that the claims in his PCR are not procedurally barred. Jackson v. State, 860 So.2d 653, 661(¶ 16) (Miss.2003). A motion for post-conviction relief from a judgment of conviction entered pursuant to a guilty plea must be made within three years after the entry of the judgment of conviction. Miss.Code Ann. § 99-39-5(2) (Supp.2006). The trial court entered the judgment of conviction on February 4, 2000. Adams did not file his PCR until June 7, 2003. Therefore, Adams’s PCR was time-barred. Miss.Code Ann. § 99-39-5(2). Adams’s allegations of ineffective assistance of counsel, involuntary plea, and defective indictment are all subject to the three-year time limitation. Fair v. State, 910 So.2d 649, 651 (¶ 6) (Miss:Ct.App.2005).

¶ 8. Adams contends that his PCR should be excepted from the time bar because it raised newly discovered evidence and a meritorious claim of actual innocence. At Adams’s February 1, 2000 sentencing hearing, Adams moved to withdraw his guilty plea. In support of the motion, Adams’s counsel, who had represented Adams when he entered the guilty plea, informed the court that he had advised Adams to plead guilty. Counsel stated that, since Adams’s return from Kansas, counsel had become aware of a witness who would have been favorable to Adams had he gone to trial. Counsel stated that, had he been aware of the favorable witness at the time of the trial, his “advice to Adams would have been very different.” While Adams has attached several witness affidavits to his PCR, Adams has not identified the favorable witness or provided the substance of what the favorable witness’s testimony might have been. The witness affidavits were made in the years 2003 and 2004. Considered together, the affidavits evince conflicts between the witnesses as to Adams’s culpability in the aggravated assault and armed robbery.

¶ 9. Adams contends that counsel’s belated discovery of the favorable witness was newly discovered evidence that showed his guilty plea was involuntary and that he received ineffective assistance of counsel. Section 99-39-5(2) provides an exception to the time bar for

those cases in which the prisoner can demonstrate ... that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence.

The supreme court has held that the newly discovered evidence exception is applicable to petitioners who pled guilty. Chancy v. State, 938 So.2d 251, 252(¶ 1) (Miss.2006). In Chancy, the petitioner contended his PCR should be excepted from the time bar due to newly discovered evidence that showed his guilty plea was involuntary and that he received ineffective assistance of counsel. Id. at 252(¶ 2). Chancy averred that affidavits of his mother and sister made after his guilty plea proved his counsel had promised him that he would only get ten years if he pled guilty. Id. The court rejected Chancy’s characterization of the affidavits as newly discovered evidence, noting that Chancy had admitted in his PCR that, at the time of his plea, he was aware of the alleged plea agreement. Id. at 253(¶ 5). The court further observed that, at the time Chancy entered the guilty plea, he swore that his guilty plea was knowingly and voluntarily made. Id.

¶ 10. Though Adams was unaware of the favorable witness at the time he entered his guilty plea, according to Adams’s PCR, he learned of the favorable witness at least as early as the February 1, 2000 hearing. Adams’s time for instigating a collateral attack of his conviction began running on February 4, 2000. Miss.Code Ann. § 99-39-5(2). Adams had three years with full knowledge of the favorable witness in which to move for post-conviction relief, yet he did not do so. Therefore, we find that Adams’s PCR is not excepted from the time bar on the basis of newly discovered evidence. We otherwise express no opinion on the merits of Adams’s newly discovered evidence claim.

¶ 11. Adams further contends that counsel’s argument about the existence of a favorable witness and the witness affidavits attached to his PCR establish his actual innocence and except the claims in his PCR from the time bar. A post-conviction relief petitioner’s contention that his actual innocence excepted his claim from the procedural bar was rejected in Howard v. State, 945 So.2d 326, 369(¶ 95) (Miss.2006). In Howard, the petitioner relied upon federal case law concerning the actual innocence exception to the procedural bar in successive, abusive, or defaulted habeas claims. Id. The supreme court held that, even if federal habeas case law on actual innocence applied to Howard’s PCR, Howard had failed to prove his actual innocence. Id.

¶ 12. Similarly in this case, even if the federal standard applied, Adams has failed to meet the requirement of a demonstration that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him. Trotter v. State, 907 So.2d 397, 401(¶12) (Miss.Ct. App.2005) (quoting Bousley v. U.S., 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)). Adams pled guilty to the aggravated assault of Eddie Craig with a pistol and to the armed robbery of Craig. Of the witness affidavits which Adams has attached to his PCR, one affidavit states that the affiant saw Craig attack Adams just before Adams shot him. One affidavit states that Craig told the affiant that Adams had robbed Craig after shooting him. Another affidavit states that the affi-ant saw the shooting and that Adams did not rob Craig. These conflicting affidavits fall far short of demonstrating that it is more likely than not that no reasonable juror would have convicted Adams of armed robbery in light of all the evidence. Adams’s argument is without merit.

II. WHETHER ADAMS RECEIVED AN ILLEGAL SENTENCE THAT VIOLATED HIS FUNDAMENTAL RIGHTS.

¶ 13. At Adams’s plea hearing, the trial court announced a sentence of twelve years but reserved the right to change the sentence if Adams failed to report as ordered. Adams failed to report, and at the February 2000 hearing the court imposed a twenty-year sentence. Adams argues that the court lacked the authority to impose a greater sentence than what had been announced at the guilty plea hearing. Adams contends that the twenty-year sentence was an illegal sentence that violated his fundamental rights, excepting this issue from the procedural bar. “Errors affecting fundamental rights may be excepted from procedural bars which would otherwise prohibit their consideration.” Bevill v. State, 669 So.2d 14, 17 (Miss.1996). The right to a legal sentence is a fundamental right, the violation of which excepts the petitioner’s claim from the procedural bars. Ivy v. State, 731 So.2d 601, 603(¶ 13) (Miss.1999).

¶ 14. However, Adams’s twenty-year sentence was not illegal because the circuit court possessed the authority to suspend the imposition of sentence. Mississippi Code Annotated section 47-7-33 (Rev.2004) authorizes a circuit court to “suspend the imposition or execution of sentence, and place the defendant on probation .... ” Construing the same language in a former version of section 47-7-33 in Leonard v. State, 271 So.2d 445, 447 (Miss.1973), the supreme court held that “once a circuit court ... exercises its option to impose a definite sentence it cannot subsequently set that sentence aside and impose a greater sentence.” However, when the court has not imposed a definite sentence but has exercised its option to suspend the imposition of sentence, the court can impose any sentence which might have been imposed at the time of conviction. Id.

¶ 15. The court did not impose a definite sentence at Adams’s guilty plea hearing. By announcing that the sentence would be twelve years if Adams reported to the sheriff after thirty days but if he did not report the court could impose a different sentence, the court suspended the imposition of sentence until Adams either (1) reported as ordered, or (2) failed to report and again appeared before the court. This the court was permitted to do pursuant to section 47-7-33. Accordingly, when Adams failed to report and then appeared before the court on February 1, 2000, the court imposed a sentence of twenty years for armed robbery. The twenty-year sentence was one that could have been imposed at the time Adams pled guilty. Miss.Code Ann. § 97-3-77 (Rev.2006). Adams did not receive an illegal sentence and his PCR is time-barred.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

KING, C.J., MYERS, P.J. AND ISHEE, J., CONCUR. LEE, P.J., IRVING AND CARLTON, JJ., CONCUR IN RESULT ONLY. GRIFFIS AND BARNES, JJ., CONCUR IN PART AND IN THE RESULT. ROBERTS, J., CONCURS IN PART AND IN THE RESULT WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, P.J., GRIFFIS, BARNES AND CARLTON, JJ.

ROBERTS, J.,

Concurring in Part and in Result:

¶ 17. While I concur with the result reached by the majority, I must write separately as I believe the analysis of Issue II to be flawed.

¶ 18. In Issue II, the majority address whether Adams’s sentence to twenty years in the custody of the Mississippi Department of Corrections for armed robbery is illegal. Adams claims that the sentence is illegal because the trial court announced a sentence of twelve years at the conclusion of the April 16, 1997 hearing in which Adams pled guilty. On February 1, 2000, some two years and ten months later, Adams claims the trial court “resentenced” him for the same crime to the greater sentence of twenty years. Adams claims this “new” sentence is unlawful because,

once a circuit court exercises its option to impose a definite sentence it cannot subsequently set that sentence aside and impose a greater sentence. At the time a defendant is convicted of a crime the court may elect not to impose a sentence but rather to suspend imposition of sentence and place such defendant on probation.

Leonard v. State, 271 So.2d 445, 447 (Miss.1973); see also Eastman v. State, 909 So.2d 171(¶ 12) (Miss.Ct.App.2005).

¶ 19. The majority analyzes the issue under Mississippi Code Annotated section 47-7-33 (Rev.2004) which, under certain circumstances, grants the circuit court authority to suspend the imposition or execution of a sentence and place a defendant on probation. However, suspension of a sentence is prohibited for those defendants convicted of a crime that carries a maximum possible punishment of death or life in prison as well as prior convicted felons. Miss.Code Ann. § 47-7-33(1) (Rev.2004). Armed robbery is just such a crime. Miss. Code Ann. § 97-3-79 (Rev.2006). Simply stated, the trial court had no authority to suspend the imposition or execution of its sentence for a defendant guilty of armed robbery. However, I conclude that the majority reached the correct conclusion that Adams’s twenty year sentence was indeed lawful for two different, but unrelated, reasons.

¶20. First, a thorough search of the record before us on appeal shows no sentencing order signed nor filed with the clerk by the judge other than the February 1, 2000 sentencing order of twenty years to serve.

The date of rendition of the judgment of the circuit court in term time, as well as in vacation, is the date when the judgment is signed by the judge and filed with the clerk for entry on the minutes; or if the judgment is not signed by the judge, the rendition date is the date it appears on the minutes of the court.

Mitchell v. State, 792 So.2d 192(¶ 83) (Miss.2001); see also Temple v. State, 671 So.2d 58, 59 (Miss.1996) (holding “in order for a sentence to be valid, a judgment must be entered as of record. This marks formal evidence of a judgment’s rendition which is necessary for its execution or appeal.”).

¶ 21. Secondly, and more importantly, a criminal defendant should not be heard to complain about the alleged illegality of his sentence when, as here, the ultimate sentence imposed is within the minimum and maximum authorized by statute and is clearly within the plea bargain agreement the defendant had with the district attorney and the court. See generally Wallace v. State, 607 So.2d 1184, 1187 (Miss.1992). The record reflects that the day before Adams pled, his attorney, Stan Perkins, had a telephone conference call with the district attorney and the judge to announce to the court that Adams had agreed to accept the State’s plea bargain of twelve years on both counts to run concurrently. Perkins told the judge that Adams requested thirty days of freedom after he pled so that he could make necessary preparations before surrender to the sheriff. Adams was on an appearance bond. The judge agreed.

¶ 22. The very next day at the conclusion of the plea hearing, Perkins again reminded the judge of Adams’s request. The plea colloquy plainly shows that Adams requested the thirty additional days and that the judge clearly explained to Adams that he must surrender on or before 10 a.m. May 16, 1997, or be subject to a much more onerous sentence. It is obvious that Adams understood and agreed to this stipulation as part of his overall plea agreement. When May 16 arrived Adams was nowhere to be found. Over two years later Adams was discovered living in Kansas and was taken into custody. He refused to waive extradition and only after a governor’s rendition warrant and extradition hearing in Kansas was he returned to Mississippi on September 23,1999.

¶ 23. He should not now be entitled to complain.

LEE, P.J., GRIFFIS, BARNES AND CARLTON, JJ., JOIN THIS OPINION.

      . Because Adams’s conviction for armed robbery was pursuant to a guilty plea, life was not an available sentence and the trial court possessed the authority to suspend the imposition or execution of Adams’s armed robbery sentence pursuant to § 47-7-33. State v. Hayes, 887 So.2d 184, 187 (¶¶ 10-11) (Miss.Ct.App.2004) (citing Marshall v. Cabana, 835 F.2d 1101, 1102-03 (5th Cir.1988)).