author: KING, C.J.,

text:
    Darwin STRAHAN a/k/a Darryl Strahan, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-02034-COA.
    Court of Appeals of Mississippi.
    May 1, 2007.

      Belinda J. Stevens, Jackson, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   KING, C.J.,

for the Court.

¶ 1. Darwin Strahan was convicted of capital murder for the kidnapping and murder of Thomas Giles and sentenced to life imprisonment in Yazoo County Circuit Court. On appeal, Strahan raises the following three issues, which are stated verbatim from Strahan’s appellate brief:

I. THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
II. THE STATE COMMITTED REVERSIBLE ERROR WHICH UNDULY PREJUDICED THE JURORS AGAINST THE APPELLANT.
III. THE CUMULATIVE EFFECT OF THE ABOVE ERRORS DENIED THE APPELLANT A FUNDAMENTALLY FAIR TRIAL.

Finding no error, this Court affirms.

FACTS

¶ 2. On July 1, 2002, Allen Ramsey discovered a body in Yazoo County, Mississippi, near Highway 3. He immediately called the Yazoo City Police Department. The police found the victim, identified as Thomas Giles, face-down and shoeless in a cornfield. An autopsy revealed that Giles had suffered six gunshot wounds to the head as well as blunt-force trauma to his face and head.

¶ 3. In the early morning hours of July 1, 2002, Thomas Giles and a number of other people were gathered at the home of Tommy White in Yazoo City. Tommy White was there with his girlfriend, Latoya Allen, and her twins. Tommy White’s sister, Krystal White, and her friend, Cor-tiss Washington, had driven in from Jackson to spend the night at Tommy White’s home. Krystal’s boyfriend, Micah Ruffin, also was there, as was the defendant, Darwin Strahan. A man named Levi Jefferson also was present.

¶4. The entire party gathered in the kitchen, where the men were playing a dice game. Tommy White had lost several hundred dollars to Giles, who had approximately five hundred dollars in his possession. Krystal White was helping Latoya Allen fix her hair. At some point, Tommy White became upset over losing money to Giles. Krystal White testified that Tommy White and Strahan left the kitchen and went to the back of the house and had a conversation.

¶ 5. After Tommy White and Strahan returned to the kitchen, Strahan and Micah Ruffin stepped outside. Upon re-entering the kitchen, Strahan began beating Giles with a brick. Ruffin joined him, brandishing a gun. Both Krystal White and Washington testified that when Stra-han and Ruffin began their assault on Giles, Strahan ordered everyone else to go to the back of the house. Jefferson, Krystal White, and Washington testified that everyone moved to the back of the house and stayed there for a short period of time “until everything got quiet.”

¶ 6. After things got quiet, Krystal White and Washington got into a car, a Cadillac, with Strahan and Ruffin and left Tommy White’s house. Both women testified that the car had been moved to the backyard, just outside the kitchen door. Once in the car, the women realized that Giles was in the trunk. They testified that Ruffin then drove the car toward the highway, but instead of getting onto the highway, he pulled off into a field. Once in the field, Strahan and Ruffin exited the car, pulled Giles from the trunk, and carried him away from the car. Ruffin then asked the women for the gun, which they refused to give him. Ruffin then grabbed the gun and joined Strahan and Giles in the cornfield.

¶ 7. Krystal White testified that she heard six shots but did not see who pulled the trigger. She testified, however, that Washington watched the shooting. She further testified that when the men returned to the car without Giles, Strahan was carrying the gun. Washington testified that she saw Strahan pull the trigger. After Ruffin and Strahan returned to the car, Ruffin drove the four of them to Jackson, where they spent two days in a hotel along the 1-55 corridor in Jackson. Washington testified that Ruffin paid for the room.

¶ 8. Meanwhile, Tommy White called the Yazoo City Police Department and reported a burglary at his home; however, he did not make the call to report the crime until more than four hours after the assault and kidnapping of Thomas Giles. When questioned by police about Giles, Tommy White stated that he had not seen Giles and that Giles had not been in his home.

¶ 9. Police brought Krystal White and Washington in for questioning in connection with the crime on July 6, 2002. Both women gave statements to the police and were subsequently charged with capital murder. Police brought Strahan in for questioning on July 8, 2002, following a search of his home, in which they found Strahan hiding in the attic. Strahan gave two statements to police, both of which were admitted as evidence at trial. That day, Tommy White’s mother, who lived in Jackson, turned in a pair of shoes to the local police. Yazoo City police later determined that the shoes belonged to Giles.

¶ 10. Following the presentation of evidence, the jury found Strahan guilty of capital murder. He was sentenced to life without the possibility of parole.

ANALYSIS

I. THE VERDICT WAS NOT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 11. Following the trial, Stra-han made a timely motion for a new trial and/or a motion for judgment notwithstanding the verdict. The trial court denied the motion. On appeal, Strahan argues that the verdict was against the overwhelming weight of the evidence. Specifically, Strahan contends that the jury’s verdict was based on unreliable eyewitness testimony by witnesses with an incentive to lie and that there was no physical evidence linking Strahan to the kidnapping and murder. In reviewing this point of error, this Court applies the following standard of review: The evidence must show, beyond a reasonable doubt, that the defendant committed the crime with which he was charged. In evaluating that evidence,

“the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”. Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citations omitted). Should the facts and inferences considered in a challenge to the sufficiency of the evidence “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy is for the appellate court to reverse and render[, i.e. reverse and discharge]. Edwards v. State, 469 So.2d 68, 70 (Miss.1985) [ (citations omitted) ]. However, if a review of the evidence reveals that it is of such quality and weight that, “having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient.

Dilworth v. State, 909 So.2d 731, 736(¶ 17) (Miss.2005).

¶ 12. Three witnesses — -Jefferson, Krystal White, and Washington — testified that they witnessed Strahan and Ruffin assault Giles. Krystal White and Washington testified that they were in the car with Strahan and Ruffin when they realized that Giles was in the trunk. Both women testified that they witnessed Stra-han pull Giles from the trunk and take him into a cornfield. Washington testified that she witnessed Strahan shoot Giles. Krystal White testified that Strahan was carrying the gun when he and Ruffin returned to the car without Giles.

¶ 13. Admittedly, both Krystal White and Washington suffered credibility issues. Both women previously had been charged with capital murder and had negotiated pleas in exchange for their testimony against Strahan. Additionally, Krystal White had previously given a statement to police in which she initially denied having seen Giles at her brother’s house that night. In a later statement, she admitted that Giles was, in fact, at her brother’s house but implicated Ruffin in the shooting. She stated that while she did not witness the shooting, when Ruffin returned to the car, he had blood on his shirt. These two statements contradicted her testimony at trial.

¶ 14. Additionally, the jury heard testimony from Officer Eric Snow of the Yazoo City Police Department that Strahan had given two statements to police. In the first statement, Strahan denied any involvement in the crime at all. In that statement, Strahan told the officer that he and Krystal White were preparing to leave Tommy White’s house when an argument erupted over the dice game. He stated that he left with Ruffin, Krystal White, and Washington and drove directly to Jackson and had no knowledge of any crime. In the second statement, given twenty minutes after the first, Strahan admitted that he and Ruffin assaulted Giles in order to get Tommy White’s money back, but he denied any knowledge of the kidnapping until after he was in the car with Ruffin, Krystal White, and Washington.

¶ 15. Strahan also admitted that he helped Ruffin take Giles out of the trunk of the car but denied any knowledge that Giles had been shot. Strahan stated that he heard the gunshots but that Ruffin told him that he fired the shots to scare Giles into running away. On cross-examination, Strahan’s counsel elicited testimony that Washington initially told police that Ruffin, not Strahan, fired the shots. Those statements were admitted as evidence and were available for the jury’s consideration.

¶ 16. Additionally, counsel for Strahan cross-examined each witness. Counsel raised the question of Tommy White’s involvement, eliciting testimony that White’s mother had possession of Giles’ shoes at her home and putting forth an expert witness who testified that some of the marks on Giles’ body were consistent with Tommy White’s ring. Additionally, counsel for Strahan cross-examined Krystal White and Washington regarding their bias and their motives to protect Tommy White and themselves. Again, these witnesses and their testimony on cross-examination were available for the jury’s consideration.

¶ 17. The responsibility for assessing the credibility of witnesses lies within the province of the jury. See Evans v. State, 725 So.2d 613, 680-81 (11293) (Miss.1997) (citation omitted). In making its decision “the jury may accept the testimony of some witnesses and reject that of others, and may accept in part or reject in part the testimony of any witnesses, or may believe part of the evidence on behalf of the state and part of that for the accused .... ” Evans, 725 So.2d at 680 (¶ 293) (citations omitted).

¶ 18. In this case, the jury’s verdict reflects that the jury accepted the testimony of Krystal White and Washington. Their testimony supported the jury’s verdict that Strahan was involved in the kidnapping of Giles and that Strahan shot and killed Giles. Accordingly, this issue is without merit.

II. THE STATE COMMITTED REVERSIBLE ERROR WHICH UNDULY PREJUDICED THE JURORS AGAINST THE APPELLANT.

¶ 19. Strahan next argues that the prosecutor made inappropriate and inflammatory remarks during his closing argument that rise to the level of reversible error. Specifically, Strahan objects to the following statements made by the prosecutor throughout the course of his closing argument:

“Here he is, has gone to all the trouble of robbing and killing a man and the only thing he got out of it was a pack of cigarettes.”
“But this goes to show how heinous, atrocious, and cruel this situation is. It’s mind-boggling to me that a human being could ever conceive of doing this to somebody but I guess if you get to where you can understand that, then you’re one of them. And I ain’t one of them.”
“It continued until they put the child in the car. I called him a child. That woman’s child over there. He put the child in the car, the trunk, against his will.”
“It bothers me more to kill a mouse than it bothered that man over there to kill a human being.”

Strahan contends that these comments served only to inflame the jury and to vilify Strahan before the jury. A review of the record reveals that defense counsel did not make contemporaneous objections to any of these comments.

¶ 20. Counsel is permitted wide latitude in making closing arguments because

The right of argument contemplates liberal freedom of speech and range of discussion confined only to bounds of logic and reason; and if counsel’s argument is within the limits of proper debate it is immaterial whether it is sound or unsound, or whether he employs wit, invective, and illustration therein. Moreover, figurative speech is legitimate if there is evidence on which it may be founded. Exaggerated statements and hasty observations are often made in the heat of debate, which, although not legitimate, are generally disregarded by the court, because in its opinion they are harmless. There are, however, certain well-established limits beyond which counsel is forbidden to go; he must con-fíne himself to the facts introduced in evidence and to the fair and reasonable deductions and conclusions to be drawn therefrom, and to the application of the law, as given by the court, to the facts.

Clemons v. State, 320 So.2d 368, 371 (Miss.1975). Notwithstanding the broad scope of permissible argument available during closing argument, trial counsel has an obligation, if he believes the prosecutor has violated the wide boundaries afforded counsel during closing argument, “to promptly make objections and insist upon a ruling by the trial court.” Johnson v. State, 477 So.2d 196, 209-10 (Miss.1985). Furthermore, as a procedural matter, “contemporaneous objections ‘must be made to allegedly prejudicial comments during closing argument or the point is waived.’ ” Dunaway v. State, 551 So.2d 162, 164 (Miss.1989) (citations omitted). Accordingly, Strahan is procedurally barred from raising this issue on appeal.

¶ 21. Despite the procedural bar, this Court may address the statements if they were so inflammatory and prejudicial that the trial court should have objected to them sua sponte. Id. (citations omitted). The standard of review for such statements is “whether the natural and probable effect of the improper argument of the prosecuting attorney [created] an unjust prejudice against the accused and [secured] a decision influenced by the prejudice so created” such that a new trial should be granted. Craft v. State, 226 Miss. 426, 435, 84 So.2d 531, 534 (1956). While the prosecutor’s remarks in this case certainly were inappropriate and should have drawn an objection from defense counsel and an admonition from the trial judge, this Court cannot say that the prosecutor’s comments rose to a level that requires this Court to reverse this case and remand it for a new trial, particularly in light of the evidence against Strahan.

III. THE CUMULATIVE EFFECT OF THE ABOVE ERRORS DENIED THE APPELLANT A FUNDAMENTALLY FAIR TRIAL.

¶ 22. Strahan argues that the combination of the prosecutor’s closing remarks and the unreliability of the witnesses against him requires reversal on the grounds that these errors had the cumulative effect of denying him a fair trial. This Court considers this issue under the following standard of review:

[U]pon appellate review of cases in which we find harmless error or any error which is not specifically found to be reversible in and of itself, we still have the discretion to determine, on a case by case basis, as to whether such error or errors, although not reversible when standing alone, may when considered cumulatively require reversal because of the resulting cumulative effect.

Byrom v. State, 863 So.2d 836, 847(¶ 13) (Miss.2003). Based on this Court’s analysis of the errors previously raised, the Court finds that this issue is without merit.

¶ 23. THE JUDGMENT OF THE YA-ZOO COUNTY CIRCUIT COURT OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    Raymond MURRELL a/k/a Raymond Lee Murrell a/k/a Raymond Jackson, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00120-COA.
    Court of Appeals of Mississippi.
    May 8, 2007.

      Edmund J. Phillips, Jr., attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, P.J., BARNES and CARLTON, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Raymond Murrell, a/k/a Raymond Jackson, was indicted in the Circuit Court of Newton County for the murder of Kenneth Saveli. Steven Saveli, Kenneth Sa-veli’s grandson, was also initially charged with the murder of Kenneth Saveli. On December 8, 2005, a jury found Murrell guilty of the lesser charge of manslaughter. Murrell was sentenced to twenty years in the custody of the Mississippi Department of Corrections.

¶ 2. At trial, conflicting testimony was presented concerning Murrell’s involvement in the murder. Saveli, who plea bargained for a manslaughter conviction in exchange for his testimony, testified that he and Murrell met on the morning of August 17, 2004, in Newton County and mowed two lawns in exchange for narcotics. After the two consumed the narcotics, Murrell asked Saveli where they could get some guns to exchange for more narcotics. Saveli replied that there were guns at his uncle Larry Saveli’s house (Saveli’s grandfather also lived in this house). They drove to his uncle’s house. Saveli testified that Murrell left the vehicle, went inside the house where Saveli’s grandfather was, and returned with a shotgun which they gave to a drug dealer in exchange for narcotics. Saveli then testified that it was not until later that he learned of his grandfather’s death. Out of fear that he would be blamed for the murder, Saveli bought back the shotgun from the drug dealer and threw it in a creek. Saveli told law enforcement a week before trial what he had allegedly done. Police searched the creek for the shotgun and found a gun, but it was not the same gun that was taken from Saveli’s uncle’s house.

¶ 3. Murrell told a different story of the events of August 17 through four statements given to and recorded by law enforcement. Murrell, through the statements, stated that after mowing lawns for drugs, he was riding with Saveli in his truck when Saveli said “don’t be scared of what I’m about to do.” At some point, Saveli asked Murrell to reach in the back seat and get a hatchet. Saveli announced that he was going to “kill the old man” with the hatchet. Saveli asked Murrell if he would “knock him off,” and Murrell replied no, that he did not have the heart to kill the old man. Murrell next testified that upon arriving at Saveli’s uncle’s house, Saveli got out of the truck and went inside the house. At the time of the murder, Saveli’s grandfather was alone in the house. A struggle occurred inside the house, as evidenced by testimony from forensic pathologist Steven Hayne, after which Saveli’s grandfather was thrown out the bedroom window. Murrell first stated that he stayed in Saveli’s truck the whole time and could hear “bumping” inside the house. However, in a later statement, he admitted that he walked in the house where he saw blood on the floor and saw Saveli throw his grandfather out the window. Murrell testified that Saveli emerged from the house with a shotgun and a balled-up towel. As they drove away Saveli asked Murrell to throw away the hatchet, which had broken into two pieces, and the towel. Murrell threw them in the woods. The two men pawned the shotgun for $40 worth of dope. According to Murrell, Saveli later told him that they would not have to worry about money anymore after his uncle, Larry Saveli, got the insurance money.

¶ 4. Murrell now appeals the jury verdict of manslaughter to this Court asserting the following issues: (1) the trial court erred in its answer to the jury’s second question; (2) the trial court erred in failing to grant his motion for a directed verdict, request for a peremptory instruction, and motion for a new trial.

¶ 5. Finding no error, we affirm.

DISCUSSION

I. DID THE TRIAL COURT ERR IN ITS ANSWER TO AN INQUIRY BY THE JURY AFTER IT RETIRED TO REACH ITS VERDICT?

¶ 6. During jury deliberations, the jury presented the following question to the trial court: “Does knowledge of intent to kill in advance constitute being an ‘active participant’?” The trial court answered in writing: “Yes. Whenever a person has knowledge that another person intends to kill, and thereafter takes an active part in the killing, then he becomes an active participant.” While no objection was made at trial, Murrell now argues that the conflict between the direct answer “yes” and the explanation could have only confused the jury.

¶ 7. “One of the most nettlesome problems faced by a circuit judge is an inquiry from the jury when it has retired to reach its verdict. The ensuing colloquy between the judge and jury, or instruction resulting therefrom, or both, have been one of the grounds of many appeals to this Court.” Girton v. State, 446 So.2d 570, 572 (Miss.1984). In Girton, the supreme court made the following observations in regard to a circuit judge giving supplemental instructions to the jury after it retires to consider its verdict:

The second recommendation requires the trial judge to constantly bear in mind that justice in every trial requires communication and understanding. Unless words are clearly understood, there is only a communication of sound, or worse, a distinct possibility of the receiver of the information placing a different meaning on what is spoken or written than the author meant. This is critical in any communication from the circuit judge to the jury, or between the judge and jury.

Id. at 572-73. The court “found it critically important that the judge understand precisely what the jury meant by its inquiry. Just as important is that the jury understand precisely what the court meant by its instruction.” Nicolaou v. State, 534 So.2d 168, 175 (Miss.1988).

¶ 8. While the trial court’s answer “yes” if read alone may have caused confusion, we cannot find that the explanation as a whole was misleading. An accessory before the fact is one who does something that “will incite, encourage, or assist the actual perpetrator in the commission of the crime.” Malone v. State, 486 So.2d 360, 363 (Miss.1986). An accessory before the fact who acts as an accessory to any felony “shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have been previously convicted or not.” Miss. Code Ann. § 97-1-3 (Rev.2006). The trial court explained that when a person has knowledge that another person intends to kill and thereafter takes an active part in the killing, then he becomes an active participant. We find that the trial court’s explanation to the jury properly conveyed the law.

¶ 9. We find Issue I without merit.

II. DID THE TRIAL COURT ERR IN FAILING TO GRANT MUR-RELL’S MOTION FOR DIRECTED VERDICT, REQUEST FOR A PEREMPTORY INSTRUCTION, AND MOTION FOR A NEW TRIAL?

¶ 10. Murrell argues that he cannot be convicted as an accessory before the fact because he did not actively participate in the crime, and, therefore, his motion for directed verdict, peremptory instruction, and motion for new trial should have been granted.

¶ 11. “The standard of review for a denial of a directed verdict, peremptory instruction, and a JNOV are identical.” Hawthorne v. State, 835 So.2d 14, 21(¶ 31) (Miss.2003). All challenge the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). This Court reviews the trial court’s findings regarding the sufficiency of the evidence at the time the motion for a directed verdict or peremptory instruction is overruled. Holloman v. State, 656 So.2d 1134, 1142 (Miss.1995). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005).

¶ 12. Viewing the evidence in the light most favorable to the State, we cannot find that the trial court erred in denying Murrell’s motions. Murrell and Saveli had spent the morning obtaining and using drugs, and a rational jury could have believed that Murrell assisted in the killing of Saveli’s grandfather to get more drugs. Murrell argues that there was no direct evidence that he knowingly participated in the killing. However, “[r]arely can knowledge be proved by direct evidence.” Johnson v. State, 461 So.2d 1288, 1293 (Miss.1984). After hearing the testimony, a jury may reasonably infer the requisite knowledge and intent of the defendant. Id. We find that sufficient evidence existed in this case for the jury to infer that Murrell was an active participant in the murder of Kenneth Saveli. We find the evidence sufficient to support the denial of the motion for directed verdict and the jury verdict of manslaughter.

¶ 13. We find Issue II without merit.

¶ 14. THE JUDGMENT OF THE NEWTON COUNTY CIRCUIT COURT OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NEWTON COUNTY.

KING, C.J., MYERS, P.J., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


author: GRIFFIS, J.,

text:
    EVERMAN’S ELECTRIC CO., INC., Appellant v. EVAN JOHNSON & SONS CONSTRUCTION, INC. and W.G. Yates Construction Company, Inc., Appellees.
    No. 2005-CA-01544-COA.
    Court of Appeals of Mississippi.
    May 8, 2007.

      Thomas W. Prewitt, attorney for appellant.
    W. Edward Hatten, Jr., Haley N. Broom, Gulfport, Donald C. Doman, Jr., attorneys for appellees.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Everman’s Electric Company, Inc. (“Everman”) brought this action against Evan Johnson & Sons Construction, Inc., (“Johnson”) and W.G. Yates Construction Company, Inc. (“Yates”) for damages arising out of work performed at a construction project, on which all three were co-prime contractors. The Harrison County Circuit Court granted summary judgment in favor of Johnson and Yates. Everman appeals and argues the trial court erred in using the contract language to bar recovery. We reverse and remand the summary judgment entered in favor of Johnson and affirm the summary judgment entered in favor of Yates.

FACTS

¶2. In 2001, the Biloxi Public School District (“BPSD”) began construction of a new Biloxi High School. Rather than hire a general contractor, which would be responsible for hiring subcontractors, BPSD directly contracted with each contractor. On February 1, 2000, BSPD had contracted with Yates to serve as the Construction Manager. Yates was responsible, among other things, for managing, scheduling, and supervising all the contractors. Also, according to its contract, Yates was to act as BPSD’s agent and representative with the other contractors. BPSD contracted with Johnson to serve as the general works contractor. Johnson likewise was responsible for coordinating its work with the other contractors. On February 7, 2001, BPSD contracted with Everman to serve as the project’s electrical contractor. The separate contracts of Everman, Yates, and Johnson each incorporated by reference the General Conditions, the Project Manual, and written modifications executed after the date of the agreement.

¶ 3. During the project, scheduling confusion caused Everman delays and the need to rework wiring and stubs which it had already set up in the building. Specifically, Everman took issue with the block mason contractor who ran over its wiring, poured floors, and erected walls and ceilings before Everman was scheduled to perform the wiring. At the end of the project, Everman accepted final payment, which included deductions for “fire proofing performed by others,” “door and frame damage,” and “damages to installed ceiling tiles.”

¶ 4. Everman and its president Tyrone Everman, individually, brought this action against Johnson and Yates. Everman alleged that Johnson and Yates negligently performed their duties under their respective contracts with BPSD. As a result, Everman claimed that it did not realize as much profit as it otherwise would have received. Mr. Everman also claimed individual damages for emotional distress.

1Í 5. The trial court granted the motions for summary judgment filed by Johnson and Yates on the ground that Everman waived its claims. Everman appeals the grants of summary judgment.

STANDARD OF REVIEW

¶ 6. This Court employs a de novo standard of review of a lower court’s grant or denial of summary judgment and examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. McMillan v. Rodriguez, 823 So.2d 1173, 1176-77(¶ 9) (Miss.2002). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Id. at 1177(119). If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his or her favor. Id. Issues of fact sufficient to require reversal of a summary judgment obviously are present where one party swears to one version of the matter in issue, and another says the opposite. Id.

ANALYSIS

I. Whether Mississippi extends liability to third parties damaged by the negligence of professionals performing the duties Johnson and Yates performed.

¶ 7. Everman argues that Mississippi has long recognized the rule that engineers/architects are liable to a contractor or third party not in privity when damaged by the negligent performance of a contractual duty owed to the owner. Everman cites us to State v. Malvaney, 221 Miss. 190, 210, 72 So.2d 424, 431 (1954), where the supreme court held that an architect’s obligation to supervise the performance of the contract created a duty which extended to a third party (the surety) in the absence of privity of contract, stating, “[t]he architect, therefore, undertook the performance of an act which, it was apparent, if negligently done would result in loss to the surety, and the law imposed upon him the duty to exercise due care to avoid such loss.... ” Hence, Everman claims that this principle makes an architect or engineer liable to a third party for negligently failing to supervise, schedule and coordinate construction, and it applies to Johnson and Yates because they assumed similar duties.

¶ 8. Johnson and Yates counter by arguing that Everman’s claims are for negligence and not of contract. Johnson and Yates claim that Everman cannot point to any legal duty which it could contend was breached by either Johnson or Yates.

¶ 9. Everman’s complaint asserted two claims — delay damages and liquidated damages. First, on the claim for delay damages, Count I claimed both Johnson and Yates:

negligently interfered with, hindered, delayed and made Everman’s work more expensive; negligently prevented Ever-man and Mr. Everman from organizing and running Everman’s crews so that its work could be performed efficiently.... Their negligence made Everman’s operations much more costly and Mr. Ever-man was unable to schedule Everman’s manpower so that it performed effectively and efficiently; instead ... Ever-man’s operations [were] made much more expensive th[a]n it should have been since Everman was required to move its labor force from location to location .... [,] expensive delays and other reductions in efficiency experienced by Everman at the Project and caused the conditions in which Everman was required to work to be different and more expensive than they would and should have been....

¶ 10. Second, on the claim for liquidated damages, Count II asserted that Yates negligently caused liquidated damages to be assessed against Everman. According to the contract, time was of the essence. If Everman caused a delay in construction, the liquidated damages clause applied, and Everman was liable to BPSD for liquidated damages in the amount of $1,000 a day. If Everman’s work was delayed through no fault of its own, then the delay clause applied, and Everman was entitled to additional time. Everman asserts that Yates knew or should have known that the delays were not Everman’s fault.

¶ 11. The trial court held that Everman waived these claims by virtue of the “no damages for delay” clause in its contract and by accepting final payment.

A. No damage for delay clause

¶ 12. The General Conditions, incorporated into Everman’s contract, provided:

If [Everman] is delayed, hindered, or impede[d] at any time in the progress of the Work for any reason or by any alleged act or neglect of ... [Yates] ... or by separate Contractor [Johnson] ... then the Contract Time may be extended by Change Order for such reasonable time as is agreed to by [BPSD], However, to the fullest extent permitted by law, and notwithstanding any other provisions in the Contract Documents, [BPSD] ... and [Yates] and their agents and employees shall not be liable for any damages for delay whether for direct or indirect costs, extended home office overhead, idle or inefficient labor or equipment, cost escalations, or monetary claims of any nature arising from or attributable to delay by any cause whatsoever. [Everman’s] sole and exclusive right and remedy for delay by any cause whatsoever is an extension [of] the Contract Time but no increase in the Contract Sum.

(emphasis added). The plain language of this contractual provision clause prohibits the imposition of liability against Yates for delay damages. Indeed, the contract itself provides for the sole and exclusive remedy for any damages from such delays was in the form of an extension of the contract time but no increase in the contract sum. These are the very damages alleged in Count I. Additionally, we find that the liquidated damages in Count II are also delay damages because, they are “monetary claims of any nature arising from or attributable to delay by any cause whatsoever.” Therefore, Yates was certainly entitled to summary judgment based on the contract documents in place.

¶ 13. Unlike Yates, Johnson cannot find solace under this clause. It does not expressly waive delay damages against Johnson. It only waives damages against BPSD, the architect, Yates, and their agents and employees. The only way this clause would extend to Johnson would be if it were an agent or employee of BPSD or Yates.

¶ 14. For the first time on appeal, Johnson claims to be BPSD’s agent. This is a question of fact. Engle Acoustic & Tile, Inc. v. Grenfell, 223 So.2d 613, 617-18 (Miss.1969). “The burden of proving an agency relationship rests upon the party asserting it, in this case [Johnson].” First United Bank v. Reid, 612 So.2d 1131, 1137 (Miss.1992) (quoting Highlands Ins. Co. v. McLaughlin, 387 So.2d 118, 120 (Miss.1980)). Johnson points to no evidence in the record that it was BPSD’s agent. Having the affirmative of the matter, Johnson was required to produce the evidence. Evan Johnson & Sons Constr., Inc. v. State, 877 So.2d 360, 365(¶ 17) (Miss.2004).

¶ 15. On the contrary, we find the record contradicts Johnson’s belated claim. According to the employment contracts, all contractors were independent contractors of BPSD and not agents or employees. Furthermore, the General Conditions provided that in case a contractor such as Johnson caused damage to another contractor such as Everman, the defending contractor would indemnify and hold BPSD harmless, and resolve the dispute itself with the complaining contractor. This is further evidence that Johnson was not an agent of BPSD. The fact that Johnson was an independent contractor is undisputed by the evidence. Indeed in its brief on page sixteen, Johnson recognizes that the contractors were independent contractors.

¶ 16. Nevertheless, Johnson states that Everman’s appellate brief concedes that Johnson is an agent. Indeed, in page 9 of Everman’s brief, Everman stated, “to the extent that Johnson damaged Everman by negligently failing to coordinate the activities of the contractors, it was likewise the agent for a disclosed principal_” Ever-man, in making an argument that Yates was still liable even though an agent for a disclosed principal, for whatever reason decided to rope Johnson in on this argument as well. Regardless, on these facts, summary judgment cannot stand. At the most, all this concession does is create a genuine issue of material fact as to whether Johnson was an agent or not. At the least, the concession does not outweigh the undisputed record evidence that Johnson was not an agent for BPSD.

B. Final payment

¶ 17. According to the General Conditions, acceptance of final payment shall act as a waiver of claims by BPSD and by Everman, except those previously noticed and identified as unsettled. In other words, when BPSD made final payment, it promised to waive any unnoticed claims. In exchange, when Everman accepted final payment, it promised to waived any unnoticed claims. The waivers flowed between BPSD and Everman. Nothing in the final payment clauses indicates that Johnson was to benefit from these waivers.

¶ 18. What the contract does say is, “Duties and obligations imposed by the Contract Documents and rights and remedies available thereunder shall be in addition to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available by law.” If anything the contract preserves Everman’s claim against Johnson.

¶ 19. When accepting final payment, Everman executed a statutory affidavit. The affidavit provided, “acceptance of such payment is acknowledged as a release of the Owner [BPSD] from any and all claims under or by virtue of the Contract except those listed below.” (emphasis added). Nothing in the affidavit operated to release Yates or Johnson. Thus Everman’s acceptance of final payment did not release its claims against Yates and Johnson.

¶ 20. Despite the plain language of the contract and the statutory affidavit, the trial court and Johnson relied on Mississippi Highway Commission v. Patterson Enterprises, Ltd., 627 So.2d 261 (Miss.1993), for the proposition that final payment releases all claims against all parties. We disagree. Patterson was a subcontractor on a construction project for the State Highway Commission. Id. at 261-62. Patterson’s contract bound it to the terms of the general contractor’s contract, which incorporated Section 109.09 of the Mississippi Standard Specifications for Road and Bridge Construction. Id. at 262-63. By these terms, Patterson agreed that the general contractor’s acceptance of final payment from the commission operated to release Patterson’s claims against the Commission. Id. at 263.

¶21. Here, Everman agreed that its own acceptance of final payment would act as a release of claims against the owner. Neither Patterson nor Everman agreed to release the other contractors.

¶ 22. We reverse and remand the trial court’s summary judgment that held that Everman waived its claim against Johnson.

II. Whether there is a genuine issue of fact that Johnson owed Everman a duty as a direct third party beneficiary.

¶23. The trial court recognized that Everman pled a third party beneficiary case; however, it held that any such duties were waived. Johnson argues it owed no duties to Everman.

¶ 24. Everman, Johnson, and Yates are co-prime contractors, because each has a direct contract with the building’s owner, BPSD. “Because the performance of prime contractors in a multi-prime contract tend to be closely interrelated, a delay or other breach by one prime will often lead to losses by others.” Melvin Aron Eisen-berg, Third-Party Beneficiaries, 92 Co-lum. L.Rev. 1358, 1401 (Oct.1992). If Prime Contractor 1 breaches a duty owed to the owner, and Prime Contractor 2 is damaged thereby, Prime Contractor 2 has a claim against 1 as a third party beneficiary. Id. (citing Hanberry Corp. v. State Bldg. Comm’n, 390 So.2d 277, 278-81 (Miss.1980)). The Mississippi Supreme Court has held:

In order for a third person beneficiary to have a cause of action, the contracts must have been entered into for his benefit, or at least such benefit must be the direct result of the performance within the contemplation of the parties as shown by its terms. There must have been a legal obligation or duty on the part of the promisee to such third person beneficiary. This obligation must have a legal duty which connects the beneficiary with the contract. In other words, the right (of action) of the third party beneficiary to maintain an action on the contract must spring from the terms of the contract itself.

Rein v. Benchmark Constr. Co., 865 So.2d 1134, 1146(¶ 38) (Miss.2004). The supreme court has further explained:

(l)When the terms of the contract are expressly broad enough to include the third party either by name as [sic] one of a specified class, and (2) the said third party was evidently within the intent of the term so used, the said third party will be within its benefits, if (B) the promisee had, in fact, a substantial and articulate interest in the welfare of the said third party in respect to the subject of the contract.

Burns v. Washington Savs., 251 Miss. 789, 797, 171 So.2d 322, 325 (1965).

¶ 25. The supreme court settled the issue now before us. In Hanberry, the State Building Commission contracted for the construction of the University of Southern Mississippi’s Student Union. Hanberry, 390 So.2d at 278. Rather than hire a general contractor, the Commission directly contracted with three separate “co-prime” contractors. Id. It contracted with Hanberry to perform the general construction work and with Mechanical Contractors, Inc., for mechanical installations. Id. Finally, there was a direct contract with an electrical contractor, which was not a party to the suit. Id. The separate contracts contained virtually identical terms. Id. Specifically, each contract contained the following clause:

If, through acts of neglect on the part of the contractor, any other contractor ... shall suffer loss or damage ... the contractor agrees to settle with such other contractor.... If such other contractor ... shall assert any claim against the owner on account of any damage ... the owner shall notify the contractor, who shall indemnify and save harmless the owner against any such claim.
The contractor shall coordinate his operations with those of other contractors .... The contractor ... shall keep informed of the progress ... and shall notify the architect-engineer immediately of lack of progress ... on the part of other contractors.... Failure of a contractor to keep informed ... and ... to give notice ... shall be construed as acceptance by him of the status of the work as being satisfactory for proper coordination with his own work.

Id. at 279. The Hanberry court approved a holding from the Fifth Circuit, where such a clause made one contractor a direct beneficiary of the contract between the owner and another “co-prime” contractor. Id. at 280 (citing M.T. Reed Constr. Co. v. Va. Metal Prods. Corp., 213 F.2d 337 (5th Cir.1954)). The reason was that the offending contractor had:

obligated [itself to] cooperate with appellant so as to enable both of them to complete their respective jobs on time. The building could not have been completed without such mutual obligation on the part of each of the contractors, and the obligation so to do was a part of the consideration that induced each of the contractors to undertake its particular job at the agreed price....
Finally there was a clause ... which provided that, should any contractor cause damage to any separate contractor on the work, the contractor causing such damage agreed, upon due notice, to settle with such other contractor.... Accordingly the contract between the State and the appellee created the latter’s direct obligation to settle with, that is to pay, the appellant; out of the facts of this obligation and ... its breach, the claim ... arose against the appellee in favor of appellant by virtue of the common law of Mississippi.
... [T]he contract ... made the several contractors direct beneficiaries of the contractual provision that any contractor would be liable for any actual damages inflicted upon another contractor on this job because of the breach of any duty assumed under the contract by the contractor.

Id. (quoting M.T. Reed, 213 F.2d at 338-39). Based on this principle, the court held that Hanberry stated a claim as a third party beneficiary to Mechanic’s contract with the Commission. Mechanic agreed to coordinate its operations with Hanberry and negligently failed to do so. Id. at 281.

¶ 26. Likewise, Everman, Yates, and Johnson were separate “co-prime” contractors for BPSD. Their contracts all incorporated the same documents. The contracts provided language identical to the Hanber-ry and M.T. Reed contracts, to-wit:

[T]he Contractor shall coordinate its activities with those of the Owner and of other Contractors so as to facilitate the general progress of all work being performed by all parties. Cooperation will be required in the arrangement for the storage materials and in the detailed execution of the work.
The Contractor, including his subcontractors, shall keep informed of the progress and the detailed work of other Contractors and shall immediately notify the Contractor in writing of lack of progress or delays by other Contractors which are affecting Contractor’s work. Failure of Contractor to keep informed of the progress of work of the other Contractors and/or failure of Contractor to give written notice of lack of progress or delays by other contractors shall be deemed to be acceptance by Contractor of the status of progress by other Contractors for the proper coordination and completion of Contractor’s work. If, through acts or neglect, on the part of the Contractor, any other Contractor or subcontractor shall suffer loss or damage or assert any claims of whatever nature against the Owner, the Contractor shall defend, indemnify and hold harmless the Owner from such claims or damages, and the Contractor shall resolve such alleged damages or claims directly with the Other Contractors or Subcontractors.

Additionally, the Project Manual provided that Yates:

shall provide administrative, management and related services to coordinate scheduled activities and responsibilities of the Contractors with each other ... and shall manage the Project in accordance with the latest approved estimate of Construction Cost, the Project Schedule and the Contract Documents .... [and] shall schedule and conduct meetings to discuss such matters as procedures, progress and scheduling .... [and] shall schedule and coordinate the sequence of construction in accordance with the Contract Documents and latest approved Project construction schedule.

Yates further was bound to “review and certify all Applications for Payment.” By express terms, Everman was made a direct third party beneficiary to Yates’s and Johnson’s contracts with BPSD.

¶27. We have previously determined that the contract provisions specifically prohibited Everman’s claims against Yates. However, Johnson had a duty to coordinate its work with Everman. Mr. Everman testified that Johnson breached this duty by not working according to posted schedules. He further testified that when he asked Johnson where it planned on working, Johnson referred him to the posted schedule that Johnson was not following. This was enough to create a genuine dispute of material fact as to whether Johnson negligently breached its duty to coordinate with Everman and thus caused Everman delay damages. Johnson was not entitled to summary judgment.

CONCLUSION

¶ 28. We affirm summary judgment granted in favor of Yates. We reverse summary judgment granted to Johnson and remand this case for further proceedings consistent with this opinion.

¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED IN EQUAL PARTS TO APPELLANT, EVERMAN’S ELECTRIC CO., INC., AND TO AP-PELLEE, EVAN JOHNSON & SONS CONSTRUCTION, INC.

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

      . The trial court granted a summary judgment on this issue. Mr. Everman agreed that Johnson and Yates owed him no duty. Mr. Everman’s individual claim is not before us in this appeal.