author: SMITH, Chief Justice, for the Court. DIAZ, Justice,

text:
    GREATER CANTON FORD MERCURY, INC., Keith Clark, Ford Motor Company, Ray L. Fayne and Katrina Fayne v. Wallace ABLES, Mary Bennett and John Williams.
    No. 2005-CA-01316-SCT.
    Supreme Court of Mississippi.
    Feb. 1, 2007.

      Michael David Tapscott, Tupelo, Thomas Wicker, Dara Steele-Belkin, John H. Fleming, Daniel H. Schlueter, Phil B. Abernethy, Jackson, Arnold Datron Lee, Gary E. Friedman, Latoya Cheree Merritt, Jackson, attorneys for appellants.
    J. Douglas Minor, Jr., Jackson, attorney for appellees.
   SMITH, Chief Justice, for the Court.

FACTS AND PROCEEDINGS BELOW

¶ 1. Plaintiffs Wallace Abies, Mary Bennett and John H. Williams (Plaintiffs) purchased pre-owned vehicles from Greater Canton Ford Mercury, Inc. (GCFM). Plaintiffs allege that Defendants, GCFM and its employees, Keith Clark, Ray L. Fayne, and Katrina Fayne, along with Ford Motor Company (Ford), committed fraud by selling them “certified, pre-owned vehicles” when, in fact, the vehicles were either not eligible for this program or had not undergone an inspection and maintenance program required of “certified, pre-owned vehicles.” Defendants filed a Motion to Stay Litigation and Compel Arbitration. The circuit court denied the motion, and consequently, Defendants appeal. Separately, Ford appeals the applicability of the circuit court judgment to it, particularly, whether as a non-signatory it may compel arbitration.

¶ 2. In 2002, the three plaintiffs each purchased a vehicle from GCFM, a Ford dealership located in Canton, Mississippi. In August 2003, the plaintiffs filed suit against GCFM, three of its employees, and Ford in the Holmes County Circuit Court alleging that due to Defendants’ misrepresentations, they purchased vehicles under the belief that the vehicles were certified pre-owned when the vehicles had, in fact, not undergone the certification process required by Ford in order to qualify as “certified pre-owned.” Each plaintiff claims to have purchased one of the fraudulently identified vehicles, in reliance on Defendants’ alleged misrepresentations, at an increased price based on a false value. After the circuit court granted an extension of time for Defendants’ responses, four answers were filed. Ford answered in October 2003. Ray and Katrina Fayne responded jointly in the same month. GCFM answered in November 2003, and Keith Clark filed his answer in December 2003.Each party listed the right to arbitrate the dispute as a defense.

¶ 3. On February 27, 2004, Ford alone filed a Motion to Compel Arbitration and Stay Litigation in the United States District Court for the Southern District of Mississippi in Jackson, Mississippi. The district court denied the motion on March 31, 2005, citing Ford’s non-signatory status and finding that the claims brought against Ford “seemingly fall outside the arbitration agreement.” Ford Motor Co. v. Ables, No. 3:04-CV-00152 (S.D.Miss. March 31, 2005). Ford appealed, and the United States Court of Appeals for the Fifth Circuit reversed the district court, holding that Ford could compel arbitration as a non-signatory.

¶ 4. In June 2004, Plaintiffs filed a Motion for Partial Summary Judgment and Declaratory Judgment requesting the circuit court to decide the arbitrability of their claims. Plaintiffs contended that the arbitration clauses in the retail installment contracts executed by Plaintiffs did not cover claims asserted by Plaintiffs in their complaint. GCFM and Ford responded in the same month by filing in circuit court a Joint Motion to Stay Resolution of Plaintiffs’ Motion for Partial Summary Judgment. On October 26, 2004, the circuit court partially granted Defendants’ motion, staying resolution until November 26, 2004.

¶ 5. On November 29, 2004, still awaiting a decision from the circuit court on Plaintiffs’ motion regarding arbitrability of the claims, GCFM and Keith Clark filed a Motion to Stay Litigation and Compel Arbitration in the circuit court, which all of the other Defendants subsequently joined. The circuit court entered an Order on March 10, 2005, staying its ruling on Plaintiffs’ Motion for Partial Summary Judgment until the federal district court ruled on Ford’s Motion to Compel. Following the federal district court’s denial of Ford’s Motion to Compel on March 31, 2005, the circuit court entered an Order on June 13, 2005, granting Plaintiffs’ Motion for Partial Summary Judgment and Declaratory Judgment. Explicitly relying on the federal district court opinion, the circuit court reached the same conclusion and found that Plaintiffs had no duty to submit to arbitration of their claims. The circuit court subsequently, on July 12, 2005, denied Defendants’ Motion to Stay Litigation and Compel Arbitration.

¶ 6. GCFM and Keith Clark appealed jointly on July 5, 2005, with Ford filing its appeal separately on the same day. Ray and Katrina Fayne filed a Notice of Appeal on July 8, 2005. Defendants each claim the decision by the Holmes County Circuit Court was in error regarding arbi-trability of Plaintiffs’ claims. They raise one issue, whether the trial court properly refused to stay litigation and compel arbitration of those claims presented by Plaintiffs who executed arbitration agreements. Ford claims the court erred in finding it incapable of compelling arbitration as a non-signatory. Ford adopts the arguments presented by the other Defendants and further presents two legal issues, specifically in relation to Ford. Ford raises two issues: (1) whether Ford has a right compel arbitration as a non-signatory to the retail installment contract and (2) whether the circuit court should have granted Defendants’ motion to stay litigation as to Ford until resolution of the arbitrability of Plaintiffs’ claims.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANTS’ MOTION TO COMPEL ARBITRATION AND STAY LITIGATION

¶ 7. A lower court’s grant or denial of a motion to compel arbitration is reviewed de novo. East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (Miss.2002).

¶8. The fraudulent actions alleged by Plaintiffs resulted in the purchase of vehicles, a transaction involving commerce. Written agreements to arbitrate contained in contracts evidencing a transaction involving commerce are subject to the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., and in determining whether to grant a motion to compel arbitration of a dispute subject to the FAA, there are two prongs of inquiry. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626-28, 106 S.Ct. 3346, 87 L.Ed.2d 444 (1985); East Ford, 826 So.2d at 713. The first prong the Court must examine is whether the parties agreed to arbitrate the dispute. Id. Second, the Court must determine whether legal constraints external to the parties’ agreement bar arbitration of the claims. Id.

Prong 1: Whether the parties agreed to arbitrate the dispute

¶ 9. The first prong is two-fold in that the court considers whether there is a valid arbitration agreement and then whether the parties’ dispute is within the scope of the arbitration agreement. East Ford, 826 So.2d at 713.

A. Whether there is a valid arbitration agreement

¶ 10. Plaintiffs do not dispute the validity of the arbitration agreement. Instead, the parties disagree about the scope of the agreement, specifically, whether the Plaintiffs’ claim of fraudulent behavior is encompassed within the arbitration provision.

B. Whether the parties’ dispute is within the scope of the arbitration agreement

¶ 11. This appeal centers around the parties’ disagreement as to the interpretation of the agreement. Defendants dispute who, a court or an arbitrator, should interpret the agreement and determine its scope as well as whether the arbitration agreement in the retail installment contract encompasses Plaintiffs’ claims. Consequently, two questions must be answered: (1) whether the proper forum for determining the scope of the arbitration agreement is in court or in arbitration, AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (citing United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347 4 L.Ed.2d 1409 (1960)), and (2) whether the arbitration agreement encompasses the dispute, Mitsubishi Motors, 473 U.S. at 626-28, 105 S.Ct. 3346. Efficiency dictates that we decide first whether it is proper for the court to interpret the arbitration agreement before attempting to interpret it.

¶ 12. First, we must determine the proper interpreter of the arbitration agreement. We have not previously answered this particular inquiry. However, since the FAA governs the enforcement of the disputed agreement, we are bound by the decisions of the United States Supreme Court, which has spoken on the issue. While this Court consistently recognizes the established federal policy favoring arbitration agreements, Terminix Int'l, Inc., Ltd. P’ship v. Rice, 904 So.2d 1051, 1055 (Miss.2004), [t]he presumption in favor of arbitration does not apply to the question of who should decide arbitra-bility, because the purpose of the FAA was to make arbitration agreements as enforceable as other contracts, not more so, First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 945, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Whether a party is bound by an arbitration agreement is generally considered an issue for the courts, not the arbitrator, “[ujnless the parties clearly and unmistakably provide otherwise.” AT & T Technologies, 475 U.S. at 649, 106 S.Ct. 1415 (emphasis added). In other words, when the parties have explicitly agreed that the question of arbitrability is to be decided by an arbitrator rather than the court, that agreement must be interpreted by an arbitrator.

¶ 13. The United States Supreme Court has mandated that general contract principles will apply. Consequently, the general practice of allowing courts to determine the issue of arbitrability is superceded by the contractual terms of an arbitration provision which provide that arbitrability will be decided by an arbitrator. The terms of the arbitration provision must be honored in a dispute over arbitrability. Therefore, arbitration of the issue of arbitrability is the mandatory result if those are the terms to which the parties have validly agreed. That premise is entirely consistent with the view of this Court. It is well established that parties may agree on the scope of arbitration in any way they, desire. B.C. Rogers Poultry, Inc. v. Wedgeworth, 911 So.2d 483, 491 (Miss.2005). Contracts are solemn obligations, and the court must give them effect as written. Id. at 487.

¶ 14. Under the exception in the binding authority, the question becomes whether the agreement clearly and unmistakably states that interpretation of the agreement will be arbitrated. The pertinent part of the arbitration provision reads:

Either you or Creditor (“us” or “we”) (each, a Party) may choose at any time, including after a lawsuit is filed, to have any Claim related to this contract decided by arbitration. Such claims include, but are not limited to the following: (1) claims in contract, tort, regulatory, or otherwise; (2) claims regarding ’the interpretation, scope or validity of this clause or arbitrability of any issue....

(Emphasis added).

¶ 15. Defendants assert that the circuit court never should have ruled on the question of whether Plaintiffs agreed to arbitrate their claims when one of the specific examples in the agreement lists disputes as to arbitrability of claims as an example of issues for which the parties agreed to submit to arbitration. Plaintiffs contend that the governing language is the general language “related to [the retail installment] contract” which precedes the specific example Defendants cite. Plaintiffs maintain that the general language does not apply to their claim, which relates to pre-sale fraudulent representations and not to the retail installment contract, a financing agreement between the plaintiffs and GCFM. Thus, Plaintiffs argue that the example of arbitrability does not encompass arbitrability of a claim unrelated to the retail installment contract, such as the claim in this case, and accordingly, that the court, not an arbitrator should interpret the agreement because at a minimum the general and specific language Defendants cite is conflicting as opposed to clear and unmistakable.

¶ 16. Clearly, the language of the arbitration agreement directs that disputes regarding interpretation of the agreement, including scope and arbitrability of issues, to be decided by an arbitrator. Though Plaintiffs dispute the clarity of the language in the provision, the examples in the arbitration provision explicitly identify disputes as to interpretation, scope, validity, and arbitrability of any issue as those subject to arbitration upon the initiation of either party, including after litigation had begun. Therefore, this clear and unmistakable language requires this Court to find that the appropriate forum for interpretation is arbitration.

¶ 17. Had we found the court capable of deciding arbitrability, we would proceed to determine whether the arbitration agreement encompasses the dispute. However, we need not proceed to the rules of interpretation for arbitration provisions in order to determine whether the circuit court’s interpretation of the provision in dispute was proper since we have found that the court was the improper forum for such a determination, and therefore, the circuit court judgment is ineffective. Having applied the first prong of the two-pronged inquiry, this Court finds that the issue on review — whether the plaintiffs’ allegations of fraudulent behavior by the defendants are subject to the arbitration agreement in the retail installment contract — is properly decided by an arbitrator rather than a court.

Prong 2: Whether Legal Constraints External to the Parties’ Agreement Foreclose Arbitration of the Claim

¶ 18. As for the second prong of the test, the existence of legal constraints external to the parties’ agreement, foreclosing arbitration of the claim, even if the claim was found to be within the arbitration provision in question, “[t]he FAA mandates that arbitration agreements shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Rice, 904 So.2d at 1055 (internal quotes omitted). In considering this prong, courts should apply ordinary state-law contract principles. East Ford, 826 So.2d at 713-14. Defenses such as fraud, duress, and unconscionability may be asserted to invalidate the arbitration agreement without offending the FAA. See id. at 714.

¶ 19. Plaintiffs allege that they were fraudulently induced to purchase vehicles. Plaintiffs further claim that they were fraudulently induced to enter into a sales contract, and it is only with regard to such sale contract that they claim fraudulent inducement. Yet, no such contract was presented to this Court in either the record, only mentioned in the briefs. This Court is limited to consideration of the facts in the record, while reliance on facts only disclosed in the briefs is prohibited. Atlantic Horse Ins. Co. v. Nero, 108 Miss. 321, 329, 66 So. 780 (1914). Moreover, per the issues raised by the parties in response to the circuit court’s denial of defendants’ motion to compel arbitration, the subject matter under consideration on review consists exclusively of the arbitration agreement in the retail installment contract. Plaintiffs argue that the retail installment contract encompassing the arbitration agreement is wholly unrelated to the sale of the vehicles and, thus, their claims of fraud. Therefore, as the second prong of the test requires assertion of a contract defense, clearly, Plaintiffs have neither raised the argument nor presented evidence indicating that they were fraudulently induced to enter into the arbitration agreement. Having found from the plaintiffs no allegation of fraudulent inducement to entering the arbitration agreement and no defense presented before the Court as to why the arbitration provision should be deemed unenforceable, this Court finds no legal constraints external to the parties’ agreement that would foreclose arbitration.

¶20. Mississippi law honors contracts as written, a concept the dissent acknowledges but fails to apply. The dissent wholly misses the dispute between the parties on appeal. On appeal from the circuit court’s denial of defendants’ motion to compel arbitration, the parties dispute one thing-the interpretation of the arbitration agreement. Plaintiffs agreed that upon the occurrence of such a dispute, the parties would submit to arbitration of that issue, and the United States Supreme Court, which this Court is indeed bound to follow, has mandated that we honor the parties’ choice. We would act in derogation of the United States Supreme Court as well as the parties’ intent to interpret or allow any court, including this one, to interpret the arbitration agreement when the parties have contracted otherwise. We decide today neither whether Plaintiffs’ claims are encompassed by the arbitration agreement nor whether the entire case must be decided by arbitration or by trial. Because we honor the parties’ written agreement, the dissent voices a fear which is unfounded. We do not end litigation and send the entire case to be arbitrated. We send the parties, according to their undisputed, explicit wishes, to arbitration solely to determine arbitrability of their claims.

¶ 21. Upon completion of the two-pronged inquiry, the decisions of this Court and the United States Supreme Court necessitate that we honor the agreement of the parties as evidenced in their contract and find that the circuit court erred in ruling on the interpretation of the arbitration provision and declaring its scope. The trial court decision is vacated as to its determination of arbitrability of the claims.

II. WHETHER THE CIRCUIT COURT ERRED IN DENYING DEFENDANTS’ MOTION TO COMPEL ARBITRATION AND STAY LITIGATION AS TO FORD

¶ 22. Ford argues separately in its appeal of the circuit court judgment that Plaintiffs had no duty to submit their claims of fraud to arbitration. Ford maintains that, as a defendant, despite its non-signatory status, it can independently compel arbitration. Second, it requests that this Court stay the litigation in the circuit court pending arbitration of the claims against the remaining defendants.

¶ 23. As for Ford’s ability to compel arbitration as a non-signatory to the arbitration provision in dispute, Ford first attempted to gain contract enforcement rights in federal district court. The federal district court ruled that Ford could not compel arbitration.

¶ 24. While the circuit court did not mention comity specifically, when deciding the same issue the court explicitly recognized the analysis of the federal court and issued the same judgment. Comity is similar to full faith and credit but is not governed by the United States Constitution or federal statutes. See Laskosky v. Laskosky, 504 So.2d 726, 729 (Miss.1987) (citing Kountouris v. Varvaris, 476 So.2d 599, 607 (Miss.1985); Cox v. Cox, 234 Miss. 885, 892, 108 So.2d 422 (1959)). Comity is a principle based on courtesy which recognizes the decision of a court from another jurisdiction. “In general, the principle of ‘comity’ is that courts of one state or jurisdiction will give effect to laws and judicial decisions of another state or jurisdiction, not as a matter of obligation but out of deference and mutual respect.” Black’s Law Dictionary 183 (abridged 6th ed.1991).

¶ 25. The courtesy of comity is applied at the discretion of the trial court. Jundoosing v. Jundoosing, 826 So.2d 85, 90 (Miss.2002); Laskosky, 504 So.2d at 729. The circuit court stayed the identical action in its court to await the outcome in federal district court. Upon the issuance of the district court decision, the ■ circuit court issued a decision drawing its sole rationale and ultimate ruling from the district court judge, referring to him by name. Clearly, when faced with the identical issue, the trial court in its own words “in agreement with the United States District Court” decided to recognize the federal district court’s judgment, and this Court finds no abuse of discretion in that decision. However, now that the Fifth Circuit has reversed the district court, the same principle of comity applies, and this Court defers to that ruling. Thus, mooting Ford’s appeal to this Court.

¶26. Based on the above reasons, the circuit court should have excluded Ford from its decision of arbitrability because by Ford’s choice of forum it was bound by the outcome in federal court. The circuit court applied an acceptable legal standard when it exercised comity with respect to the outcome in federal court as to Ford.

CONCLUSION

¶27. In accordance with the law, the plain text of the arbitration provision, and the federal policy favoring arbitration, this Court finds that the arbitration provision requires a stay of litigation while Plaintiffs submit to arbitration for a determination of the arbitrability of their claims of fraudulent misrepresentation against GCFM, Keith Clark, Ray L. Fayne, and Katrina Fayne. Therefore, this Court vacates the circuit court’s judgment, as to those defendants, interpreting the arbitration provision.

¶ 28. Additionally, the circuit court judgment denying Ford’s right to compel arbitration is reversed in accordance with the reversal by the Fifth Circuit of the district court decision upon which the circuit court wholly relied. Thus, this case is remanded to the circuit court with directions to stay the entire case pending arbitration.

¶ 29. VACATED IN PART AND REVERSED AND REMANDED IN PART.

WALLER AND COBB, P.JJ., CARLSON AND DICKINSON, JJ., CONCUR. EASLEY, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY EASLEY, J. GRAVES AND RANDOLPH, JJ., NOT PARTICIPATING.

DIAZ, Justice,

Dissenting.

¶ 30. Because a contract that is fraudulently induced is void ab initio, and because federal law should not mandate the result in today’s case, I must respectfully dissent.

I. Arbitration Does Not Apply in This Case.

¶ 31. The majority struggles mightily to apply arbitration to this case, and in doing so, does damage to both the law and the factual record before us. The following facts are undisputed. There were two transactions in this case. First, the plaintiffs made a decision to purchase a vehicle from Greater Canton Ford. Second, the plaintiffs entered into a separate contract with the dealership to secure credit for the purchase of the cars. The contract for credit contained the arbitration clause which we examine today.

¶ 32. However, the fraud alleged by the plaintiffs goes to the pre-sale representations of the dealership. The majority crafts a particularly flimsy scarecrow when it states that the “Plaintiffs have neither raised the argument nor presented evidence indicating that they were fraudulently induced to enter into the arbitration agreement.” Since this was not an argument of the plaintiffs, it is of course easy for the majority to dismiss it.

¶ 33. The plaintiffs actually argued that the arbitration agreement contained in the credit contract did not extend to or relate out of the separate contract for purchase. Thus they offered that, since the arbitration clause was in a separate transaction, it did not reach their claims. This argument satisfies both logic and common sense. See Greenwood v. Sheffield, 895 S.W.2d 169, 175 (Mo.Ct.App.1995) (“where the statements that give rise to a tort claim are independent of the contract terms between the parties and do not require reference to the underlying contracts, arbitration is not compelled”).

¶ 34. Further, any fraud to coerce a party into entering a contract automatically invalidates that the contract — -and any clause therein — ab initio. The bedrock rule of contract law is that “[a] written contract is to be upheld unless it is obtained through deceit or misrepresentation.” Continental Jewelry Co. v. Joseph, 140 Miss. 582, 585, 105 So. 639, 639 (1925); Estate of Baxter v. Shaw Assocs., 797 So.2d 396, 399 (Miss.Ct.App.2001). Accordingly, the arbitration provision contained in the credit contract is not all-encompassing.

II. Arbitration Damages the Constitutional Rights of Mississippians.

¶ 35. I also write to express my continuing concern at our steadfast march towards arbitration. Arbitration as a concept is wholly valid — if parties wish to settle disputes outside of the legal system, they should be able to contract for such a result.

¶ 36. However, two massive problems have proved to be the norm rather than the exception. First, this Court has continually deferred to the decisions of the federal courts and the FAA, which is a creation of the U.S. Congress. In my view, the states are not bound by these decisions, and the Legislature and courts of Mississippi should ultimately regulate the usage of arbitration within our state. See generally Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 285-97, 115 S.Ct. 834, 845-51, 130 L.Ed.2d 753 (1995) (Thomas, J., dissenting).

¶ 37. I also repeat the same concerns I have previously voiced concerning the unlimited reach of arbitration: if we decide today that arbitration covers claims wholly unrelated to the contract from which it is grounded, what is not covered by this arbitration agreement? For example, if one of the plaintiffs had been murdered while at Greater Canton Ford paying a bill, could the dealership insist that the wrongful death claim be submitted to arbitration? If an employee of Greater Canton Ford picked one of the plaintiffs pockets when he came in on business related to the purchase of a vehicle, and the plaintiff sued the employee for conversion, would he be forced to arbitrate that claim? Would it make no difference that the conversion had occurred 20 years after her last transaction with Greater Canton Ford? These very same hypotheticals were dismissed as absurd by the Seventh Circuit, which limited an arbitration agreement over payday loans in Smith v. Steinkamp, 318 F.3d 775, 777 (7th Cir.2003). Yet today we chart a different path — one towards unlimited arbitration.

¶38. Lastly, I write to emphasize my continuing belief that all Mississippians have a fundamental constitutional right to both a jury of their peers and access to the court system. Because arbitration significantly interferes with these fundamental rights, it should be reviewed accordingly with strict scrutiny. See Cleveland v. Mann, 942 So.2d 108, 121-22 (Miss.2006) (Diaz, J., dissenting). Because today the majority continues down a path which deprives Mississippians of fundamental constitutional rights, I must respectfully dissent.

EASLEY, J., JOINS THIS OPINION IN PART.

      . The three plaintiffs were joined by forty-one others at the initial filing of the suit in the Holmes County Circuit Court. The claims of the thirty-eight who were not residents of Holmes County were later severed and transferred to the proper jurisdictions on October 26, 2004. Six plaintiffs remained, but only the three before this Court signed retail installment contracts, the contract containing the arbitration provision in dispute, with GCFM and, thus, might be subject to arbitration of their claims.

      . Ford Motor Co. v. Ables, No. 05-60391, — Fed.Appx. -, 2006 WL 3431602, 2006 U.S.App. LEXIS 29347 (5th Cir. Nov. 29, 2006).

      . GCFM filed its Motion to Compel and to Stay Litigation fifteen months after the suit was filed and was later joined by the other defendants.

      . As a matter of venue, Ford chose to have the issue of its ability to compel arbitration decided in federal court, and Ford is bound by that choice. The federal district court judgment was reversed on appeal by the United States Court of Appeals for the Fifth Circuit.


source: Caselaw Access Project

author: SMITH, Chief Justice,

license: Public Domain

text:
    Penelope Ann PAYNE v. Max D. WHITTEN.
    No. 2004-CT-01905.
    Supreme Court of Mississippi.
    Feb. 15, 2007.

      Gerald W. Chatham, Sr., Hernando, attorney for appellant.
    Frances R. Shields, Jackson, Amanda B. Quave, Biloxi, William C. Griffin, Jackson, attorneys for appellee.
   ON MOTION FOR REHEARING

ON WRIT OF CERTIORARI

SMITH, Chief Justice,

for the Court.

¶ 1. Motion for rehearing is denied. The original opinion is withdrawn and this opinion substituted therefor.

¶ 2. This case is before us on writ of certiorari from a judgment of the Court of Appeals which reversed and remanded the trial court verdict. Penelope Ann Payne sued Max D. Whitten for injuries she received in a one-car accident in Tate County. In his answer, Whitten raised as an affirmative defense Payne’s contributory negligence. During the trial, Whitten for the first time provided testimony to support this defense. The following day, Payne’s attorney requested a mistrial or other sanction, arguing Whitten’s testimony violated the rules of discovery. The circuit judge denied relief. The jury returned a verdict in favor of Payne, but found her guilty of contributory negligence and assigned her thirty percent of fault. In accordance with the jury’s verdict judgment was entered for Payne for $20,000. On appeal, a divided Court of Appeals reversed the judgment of the trial court and remanded the case for a new trial. Payne v. Whitten, No. 2004-CA-01905-COA, 948 So.2d 431, 2006 WL 279081 (Miss.Ct.App.2006). Finding that the trial court’s denial of a mistrial or other relief was within its discretion, we reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of the Circuit Court of Tate County.

FACTS

¶ 3. On March 17, 2001, Max D. Whitten was driving a Chevrolet truck down Veaz-ey-Smith Road in Tate County, Mississippi. Whitten lost control of the vehicle, and as a result, the truck went off the edge of the road and rolled approximately three times. Penelope Ann Payne was the sole passenger in Whitten’s truck when the accident occurred. On December 14, 2002, Payne sued Whitten for negligence. In his answer, Whitten claimed contributory negligence stating “the Plaintiff was partially at fault in causing the accident in question and her resulting alleged damages.”

¶ 4. Payne propounded interrogatories which were timely answered by the defendant. The following was included in Whit-ten’s interrogatory responses:

INTERROGATORY NO. 10: Describe in your own words how the collision occurred and state specifically and in detail what the claim or contention of the Defendant will be regarding any cause or contributing cause of the collision, including a statement in detail of the facts or information upon which this contention is based.
RESPONSE: The accident happened when I was headed east on Veazey-Smith road which is a 2-lane road made of white rock and tar. As I started up a hill, I got over to the left, and then overcorrected my position in the road and went onto the right shoulder of the road which gave way causing the right front of my vehicle to drop.

¶ 5. During Whitten’s deposition, he was not questioned about his claim of contributory negligence-only how the accident occurred. Whitten’s deposition response was similar to his interrogatory response. He stated that he had gotten over too far to the left and when he tried to get back over, he overcorrected and the shoulder on the right gave way, causing him to lose control.

¶ 6. At trial, during cross-examination, Whitten was asked what Payne was doing immediately prior to the accident. Whit-ten testified that Payne had been on his side of the truck kissing him just before the accident occurred. On direct examination, Payne testified “that is absolutely 100 percent not the case. I never left my seat.” Payne’s attorney cross-examined Whitten extensively about his previous statements in which he had never mentioned that Payne was kissing him. The following day, Payne’s attorney requested a mistrial or sanctions, arguing that Whit-ten’s statements prejudiced his client due to his surprise revelation of a cause of the accident in light of his evasive or incomplete answers to interrogatory and deposition questions. Whitten argued that Payne’s attorney failed during discovery to ask questions regarding Payne’s actions prior to the accident. The circuit court judge denied Payne’s motion for a mistrial or sanctions stating,

I see it as a credibility question and not a very severe one at that. This is not unusual. I have tried lots of cases, and I have never seen cases doing the exact script. There’s going to be variations in testimony, and that’s all I see this is here. I think, Mr. Chatham, you impeached him with his interrogatory yesterday, you got it into evidence; and with the deposition testimony, certainly I don’t see anything here that would warrant the Court to consider a mistrial or sanctions.

The jury found. Whitten to be 70% liable and Payne 30% contributorily negligent. Damages were assessed at $20,000. The Court of Appeals reversed and remanded for a new trial.

ISSUES

1. Whether the Circuit Court Committed Error in Denying Payne’s Motion for Mistrial or Sanctions, and in Rejecting Payne’s Argument That Certain Testimony on the Part of Defendant Constituted a Discovery Violation Which Prejudiced the Plaintiff.
2. Whether the Error, If Any, Was Caused by Plaintiffs Own Counsel in That the Testimony Was Elicited During the Plaintiffs Questioning of • Whitten.

Because the resolution of Issue I controls the outcome of the case, it is unnecessary to address Issue II.

STANDARD OF REVIEW

¶ 7. The standard for review of evi-dentiary matters is abuse of discretion. Floyd v. City of Crystal Springs, 749 So.2d 110, 113 (Miss.1999).

DISCUSSION

I. Whether the Circuit Court Committed Error in Denying Payne’s Motion for Mistrial or Sanctions, and in Rejecting Payne’s Argument That Certain Testimony on the Part of the Defendant Constituted a Discovery Violation Which Prejudiced the Plaintiff.

¶ 8. Payne argued that Whitten’s trial testimony caused total and complete prejudice due to his surprise revelation of a cause of the accident in light of his evasive or incomplete answers to interrogatory and deposition questions. Whitten argued that his testimony remained consistent throughout the litigation. Whitten argued that despite his notifying opposing counsel in his complaint of a contributory negligence defense, trial was the first time he was asked about Payne’s actions leading up to the accident. The trial judge found that neither a mistrial nor sanctions were warranted. He found that the discovery responses were incomplete but not untruthful or unusual.

¶ 9. Payne sought relief under Mississippi Rule of Civil Procedure 37(e). The rule allows sanctions for discovery violations “as may be just” in response to abuses in “seeking, making or resisting discovery.” It is only in extreme circumstances that a trial court should dismiss a suit for failure to comply with' discovery requirements. Pierce v. Heritage Props., Inc., 688 So.2d 1385, 1388 (Miss.1997). Payne’s reliance on Rule 37(e) for relief is misplaced. This issue is properly resolved as an evidentiary issue under Mississippi Rule of Evidence 607, which governs the impeachment of testimony.

¶ 10. Whitten notified Payne of a contributory negligence defense in his Answer to the Complaint by way of two separate affirmative defenses. Whitten clearly identified Payne as a contributing cause of the accident when he stated: “The Plaintiff was partially at fault in causing the accident in question and her resulting alleged damages.” Payne did question Whitten about contributory negligence defense by way of Interrogatory No. 10. Interrogatory No. 10 asked first, how the accident occurred and second, the basis of any claim of a contributing cause, clearly violating Miss. R. of Civ. P. 33(a), which restricts interrogatories to a single question.

¶ 11. Whitten’s response to Interrogatory No. 10 addressed the first question “how the accident occurred” but failed to address any basis for his contributory negligence defense. Payne did not pursue Whitten’s contributory negligence defense beyond this interrogatory. Payne took a discovery deposition of Whitten. Yet, at his deposition, Whitten was never asked about contributory negligence.

¶ 12. We find no prejudice to Payne. Whitten was cross-examined extensively about his previous statements in which he had never mentioned that Payne was kissing him. Payne took advantage of the opportunity to impeach Whitten, who was cross-examined extensively about his previous statements in which he had never mentioned that Payne was kissing him. Payne was still available to testify as to whether or not she had not been kissing Whitten at the time of the accident. In her direct testimony, Payne disputed Whitten’s kissing allegation. Further, Whitten’s attorney never questioned Payne about the kissing episode during her cross examination of Payne. Payne was allowed to recall the officer from the scene to impeach Whitten’s testimony concerning the kissing episode. Officer His-song testified that “Mr. Whitten stated to me that he looked over and talked to Ms. Payne, and when he looked back up, his truck was running off the road and then it started flipping after it ran off the road.” Officer Hissong further testified that Wfiiitten never mentioned the kissing episode at the scene. Additionally, the trial court gave a jury instruction concerning prior inconsistent statements in response to Whitten’s testimony regarding the kissing allegation, which he never mentioned until trial. Further, Payne’s attorney disputed the kissing allegation at much length during his closing argument.

¶ 13. For these reasons, we find that the trial court acted within its discretion in denying Payne’s Motion for Mistrial or Sanctions.

CONCLUSION

¶ 14. This Court finds that the trial judge did not abuse his discretion by denying Payne a mistrial or other relief for Wfiiitten’s discovery violations. For the reasons stated, we reverse the Court of Appeals’ judgment and reinstate and affirm the judgment of the Circuit Court of Tate County.

¶ 15. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE JUDGMENT OF THE CIRCUIT COURT IS REINSTATED AND AFFIRMED.

WALLER, P.J., DIAZ, EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ„ CONCUR. COBB, P.J., AND GRAVES, J., NOT PARTICIPATING.


author: MYERS, P.J., GRIFFIS, J.,

text:
    Penelope Ann PAYNE, Appellant v. Max D. WHITTEN, Appellee.
    No. 2004-CA-01905-COA.
    Court of Appeals of Mississippi.
    Feb. 7, 2006.
    Rehearing Denied May 16, 2006.

      Gerald W. Chatham, Hernando, attorney for appellant.
    Amanda Benefield Quave, William C. Griffin, Frances R. Shields, Jackson, attorneys for appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. On April 13, 2004, the Circuit Court of Tate County returned a verdict in favor of Payne, but found her guilty of contributory negligence and assigned her thirty percent of fault and awarded her damages in the amount of $20,000. On June 14, 2004, the circuit court entered the judgement on the jury verdict. On June 24, 2004, Payne filed her motion for new trial and/or, in the alternative, an additur. The circuit court overruled this motion on September 17, 2004. Aggrieved by the trial court’s ruling, Payne appeals to this Court raising the following three issues:

I.WHETHER OR NOT THE AMOUNT OF THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND AN ADDITUR SHOULD HAVE BEEN AWARDED.
II. WHETHER OR NOT THE TRIAL COURT ERRED IN NOT AWARDING PAYNE A MISTRIAL BASED ON THE ANSWERS OF WHITTEN ON CROSS-EXAMINATION AND IN NOT AWARDING SANCTIONS FOR WILLFUL VIOLATION OF DISCOVERY RULES.
III. WHETHER OR NOT THE TRIAL COURT ERRED IN NOT INSTRUCTING THE JURY TO DISREGARD THE TESTIMONY OF WHIT-TEN CONCERNING THE CAUSE OF THE ACCIDENT OUTSIDE OF THE INTERROGATORY AND DEPOSITION ANSWERS.

FACTS

¶2. On March 17, 2001, Max Whitten was driving a Chevrolet truck down Veaz-ey Road in Tate County, Mississippi. Whitten overcompensated in turning the truck to the right, and as a result the truck went off the edge of the road and rolled approximately three times. Penelope Ann Payne was a passenger in Whitten’s truck when the accident occurred. On December 14, 2002, Payne filed a complaint against Whitten regarding this accident. Normal discovery occurred such as interrogatories and depositions. Whitten was called as an adverse witness by Payne at the trial. He testified that neither he nor Payne were wearing a seatbelt at the time of the accident, and when asked what Payne was doing prior to the accident he testified that Payne was not in her seat just prior to the accident. Whitten testified that he and Payne were kissing/ “necking” a few seconds before the accident. Payne asserts that Whitten did not mention this in either the interrogatories or at his deposition. Whitten contends that the trial was the first time Payne’s attorney had asked him what Payne was doing just prior to the accident. Payne’s attorney introduces both Whitten’s deposition and interrogatories, over counsel’s objections, into evidence for the jury to examine.

¶ 3. Payne’s attorney requested a mistrial along with sanctions against Whitten’s attorneys for violation of discovery matters. Whitten’s attorney argued that Payne’s attorney failed to ask Whitten direct questions regarding the actions of Payne prior to the accident. After hearing these arguments, the trial court denied Payne’s motion for a mistrial and for sanctions. On April 13, 2004, the jury returned a verdict with Whitten seventy percent at fault and Payne thirty percent at fault and awarding Payne damages in the amount of $20,000.

DISCUSSION

¶ 4. We have- decided it is sufficient to discuss all three issues together, since the analysis tends to overlap. Payne contends that the jury returned an inadequate verdict based upon the facts presented during trial. She goes further to state that the trial court should have granted a mistrial as a result of Whitten’s testimony which was allegedly different than his previous testimony during discovery, and that the trial court should have instructed the jury to disregard Whitten’s testimony concerning the cause of the accident. Whitten argues that the jury’s verdict was based upon the totality of the evidence presented, and goes further to state that Payne’s credibility was severely impeached as to the severity of her injuries since most were reflected by her subjective complaints with no objective findings to support this. Whitten takes the position that his testimony did not change at trial; however, at trial was the first time Payne’s attorney asked a direct question regarding the location of Payne prior to the accident.

STANDARD OF REVIEW

¶ 5. This Court’s standard of review regarding a trial court’s grant or denial of an additur, the denial of a motion for mistrial and the admission or exclusion of evidence is abuse of discretion. Illinois Cent. R. Co. v. Hawkins, 830 So.2d 1162, 1181(¶ 54) (Miss.2002); Yoste v. Wal-Mart Stores, Inc., 822 So.2d 935, 936(¶ 7) (Miss.2002); Maddox v. Muirhead, 738 So.2d 742, 743(¶ 5) (Miss.1999); Rodgers v. Pascagoula Public School Dist., 611 So.2d 942, 945 (Miss.1992);

DISCUSSION

¶ 6. The Mississippi Code Annotated grants all courts of record the authority to overrule a motion for new trial or affirm on direct or cross appeal upon the condition of an additur, if the court finds that the damages are inadequate and are against the overwhelming weight of the credible evidence. Mississippi Code Annotated § 11-1-55 (Rev.2002). The party seeking the additur has the burden of proving his injuries, loss of wages and all other damages. Maddox, 738 So.2d at 743(¶ 5). The evidence is viewed in the light most favorable to the defendant. Id. Awards which are set by juries are not merely advisory and usually will not be set aside unless the award is so unreasonable as to strike mankind as being beyond all measure, unreasonable in amount and outrageous. Rodgers, 611 So.2d at 945. The amount of damages awarded is a question for the jury. South Cent. Bell Telephone Co. Inc. v. Parker, 491 So.2d 212, 217 (Miss.1986). “Additurs represent a judicial incursion into the traditional habitat of the jury, and therefore should never be employed without great caution.” Gibbs v. Banks, 527 So.2d 658, 659 (Miss.1988).

¶ 7. Payne states that she did prove her damages, and that the jury relied upon evidence which was not credible. Payne claims that the testimony of Whitten regarding the “kissing incident” should have been excluded, since he did not mention this in his responses to interrogatories or in his deposition. The following was included in these interrogatories:

Interrogatory No. 10: Describe in your own words how the collision occurred and state specifically and in detail what the claim or contention of the defendant will be regarding any cause or contributing cause of the collision, including a statement in detail of the facts or information upon which this contention is based.
Response: The accident happened when I was headed east on Veazey-Smith Road which is a 2-lane road made of white rock and tar. As I started up a hill, I got over to the left, and then overcorrected my position in the road and went onto the right shoulder of the road which gave way causing the right front of my vehicle to drop.

Whitten never mentioned anything about the “kissing incident” or Payne contributing to the cause of the collision even though he pleaded contributory negligence in his answer. Also through numerous questions at his deposition, Whitten did not mention the “kissing incident” or Payne’s contribution. However, at trial after Whitten was asked what Payne was doing immediately prior to the accident, he testified that Payne was not in her seat at the time of the incident, and that immediately before the accident Payne was kissing Whitten.

¶ 8. Mississippi Rules of Civil Procedure 37 deals with sanctions imposed for discovery violations. M.R.C.P. 37(e) goes further to say that the court may impose such sanctions as may be just. Payne argues that Whitten’s responses were wilfully false and misleading, and Whitten takes the position that he was never asked, prior to the trial, what Payne was doing before the accident.

¶ 9. When this Court reviews a decision that is within the trial court’s discretion, it first must decide if the court below applied the correct legal standard. Wood ex rel. Wood v. Biloxi Public Sch., 757 So.2d 190, 192(¶ 8) (Miss.2000). If the trial court applied the correct legal standard, then this Court will affirm the ruling of the trial court unless there is a firm conviction that the court below committed a clear error of judgment in reaching its conclusion. Scoggins v. Ellzey Beverages, Inc., 743 So.2d 990, 996(¶ 27) (Miss.1999).

¶ 10. In the most extreme circumstances regarding discovery violations, the court sanctions the violating party by dismissing the case. However that would be an insufficient remedy in the present case, since the defendant is the violating party. Therefore, Payne has requested an additur. In Pierce, the Mississippi Supreme Court adopted the Fifth Circuit’s holding in Batson v. Neal Spelce Associates. Inc., 765 F.2d 511, 514 (5th Cir.1985) in evaluating the appropriateness of dismissal as a sanction for discovery violations. Pierce v. Heritage Properties Inc., 688 So.2d 1385, 1389 (Miss.1997). Basically dismissal is only authorized when a party wilfully or in bad faith fails to comply with the court’s order, and it is only proper in situations where the deterrent value of M.R.C.P. 37 cannot be achieved by a less drastic sanction. Id. Another consideration is whether or not the other party’s preparation for trial was substantially prejudiced. Id. Dismissal may not be appropriate when the neglect is attributable to the attorney, or when a party’s negligence is based upon confusion or sincere misunderstanding. Id. The court noted in Pierce that the plaintiff repeatedly was untruthful in her sworn discovery statements. Id. The court must focus on the intentional nature, and pattern of the plaintiffs conduct. Id at 1389.

¶ 11. Dismissing this case would not be a deterrent since the defendant’s untruthful conduct is the one in question. However, we do not find that Whitten’s actions require granting Payne an additur. Damage awards are within the domain of the jury, we will only order an additur with great caution, when the jury award is so unreasonable in amount and is outrageous. Renfroe v. Berryhill, 910 So.2d 624, 630(¶ 28) (Miss.Ct.App.2005). In the present case, the trial judge stated that this situation was not unusual or severe, and went further to assert that this simply could be a variation in testimony. There was no pattern of misrepresentations throughout discovery. Whitten did plead contributory negligence, in both his answer to the complaint and responses to interrogatories. In his answer, Whitten states that he was partially or even mostly at fault. However, Whitten never elaborates on his contributory negligence claim during discovery even though he was asked about his claim. Whitten waits until he is testifying at trial before he asserts that Payne was partially negligent as a result of her actions prior to the accident, and this testimony resulted in a discovery violation.

¶ 12. Payne asserts that it was in error for the trial court to present a jury instruction regarding comparative negligence. However, both parties have a right to jury instructions on all material issues presented in the pleadings and into evidence. Glorioso v. Young Mens Christian Ass’n of Jackson, 556 So.2d 293, 295 (Miss.1989). Whitten pleaded to comparative negligence in his answer, and evidence was presented at trial for the jury to determine the division of the negligence. The trial judge ■ even stated that Whitten said he was liable but not one hundred percent. However, we do find that the untruthfulness in Whitten’s interrogatories is sufficient to warrant a new trial. Therefore, the judgment of the Tate County Circuit Court is reversed, and the present case is remanded to the trial court for trial.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF TATE COUNTY IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., CHANDLER, BARNES AND ISHEE, JJ„ CONCUR. GRIFFIS, J. DISSENTING WITH SEPARATE WRITTEN OPINION JOINED BY LEE, P.J. AND IRVING, J. SOUTHWICK AND ROBERTS, JJ., NOT PARTICIPATING.

GRIFFIS, J.,

Dissenting:

¶ 14. I respectfully dissent from the majority’s decision.

¶ 15. The majority finds that the untruthfulness of Whitten’s interrogatory answers is sufficient to grant a new trial. I do not find evidence to support that conclusion. Quite frankly, this case presents us with a unique and problematic question. The offending testimony was actually part of the question asked by Payne’s attorney during the cross-examination of Whitten. Indeed, had Whitten offered this testimony on direct, the trial court would have been correct to determine it was inadmissable. We must consider all of the circumstances to determine whether the trial judge should be reversed for not granting a mistrial.

¶ 16. Our standard of review is that it is within the sound discretion of the trial judge to grant or deny a motion for a mistrial. For us to reverse the trial judge’s failure to grant a mistrial requires that we find he abused his discretion. Blocker v. State, 809 So.2d 640, 643 (Miss.2002); Bass v. State, 597 So.2d 182, 191 (Miss.1992). Here, the trial judge ruled:

I see it as a credibility question and not a very severe one at that. This is not unusual. I have tried lots of cases, and I have never seen cases tried doing the exact script. There’s going to be variations in testimony, and that’s all I see here.
I think, Mr. Chatham, you impeached him with his interrogatory yesterday, you got it into evidence; and with the deposition testimony, certainly I don’t see anything here that would warrant the Court to consider a mistrial or sanctions. I don’t know, it’s just to me a routine problem of some minor statute that comes up often in lawsuits. You can’t follow a script in a trial of a case, and the human factor comes out when people say things differently, remember things differently or purposefully add to or take away.

¶ 17. In his answer, Whitten raised two affirmative defenses that asserted contributory negligence by Payne. The majority quotes Whitten’s interrogatory answer, where he only answered one of the two questions that were posed in interrogatory number 10. I cannot conclude that the answer was untruthful, as the majority contends. Instead, Whitten’s interrogatory response could be considered as either incomplete or evasive. Thus, under Rule 37(a)(8) of the Mississippi Rules of Civil Procedure, Whitten’s response could have been treated as a failure to answer. The appropriate action for the failure to answer would be a motion to compel under MRCP 37(a)(2). In addition, Payne had an opportunity to ask Whitten questions in his deposition. Payne did not ask any questions about the contributory negligence defenses or the incomplete interrogatory answer.

¶ 18. In arguing the motion before the trial judge, Payne claims “[t]his testimony was a complete surprise to the plaintiff.” The trial judge rejected this contention and determined that it was an issue of credibility of the witness. Indeed, the trial judge determined that Payne opened this door during his cross-examination and used this testimony to contrast Whitten’s earlier deposition testimony where the “kissing incident” was not revealed. We must consider the testimony and the manner by which it was offered.

¶ 19. Whitten was the second witness called by Payne. He was called as an adverse witness, which allowed for Payne’s counsel to cross-examine him. The import is that Payne’s counsel was able to ask leading questions. M.R.E. 611(c). The following testimony of Whitten is at issue:

BY MR. CHATHAM: The entire time from the time you left the Back Tracks until the accident, were you driving?
BY WHITTEN: Yes, sir.
BY MR. CHATHAM: What was Penny doing?
BY WHITTEN: She was a passenger on the passenger’s side seat. Well, actually it was bucket seats.
BY MR. CHATHAM: Bucket seats?
BYWHITTEN: Yes, sir.
BY MR. CHATHAM: Was she in her seat and you in your seat?
BY WHITTEN: Most of the way.
BY MR. CHATHAM: Most of the way. What do you mean?
BY WHITTEN: Up until just before the accident, she was—
BY MR. CHATHAM: What happened?
BY WHITTEN: She was kind of on the console toward my side.
BY MR. CHATHAM: Why?
BYWHITTEN: Why?
BY MR. CHATHAM: Uh-huh.
BY WHITTEN: You would have to ask her that, I don’t know.
BY MR. CHATHAM: Well, I mean was she making romantic advances toward you?
BYWHITTEN: Something like that.
BY MR. CHATHAM: What are you trying to imply here, sir?
BY WHITTEN: I’m trying to answer the question.
BY MR. CHATHAM: Well, that’s what I’m asking you. What was she doing?
BY WHITTEN: I guess kissing would he the best answer for that.
BY MR. CHATHAM: Well, did y’all kiss?
BYWHITTEN: Yes.
BY MR. CHATHAM: Okay. And is that it? Is that what caused you to urreck? Y’all were kissing and ran off the road?
BY WHITTEN: No. She had gotten back over to her side finally after I asked her to a couple of times.
BY MR. CHATHAM: Say what, sir?
BY WHITTEN: After I had asked her to get back over to her side a couple of times, she finally did.
BY MR. CHATHAM: Okay. All right. So how long after that did you have the wreck?
BY WHITTEN: Not very long at all; it was probably less than ten seconds.
BY MR. CHATHAM: All right. Why did the car run off the road — the truck run off the road?
BY WHITTEN: Why did the truck run off the road?
BY MR. CHATHAM: Yes, sir.
BY WHITTEN: I got over to the left while I was distracted, and when I corrected, I overcorrected and got over to the right too far.
BY MR. CHATHAM: While you were distracted? Do you mean while you were kissing?
BYWHITTEN: Yes, sir.
BY MR. CHATHAM: And then you pulled the car back over?
BYWHITTEN: Uh-huh.

(Emphasis added).

¶ 20. The testimony of the “kissing incident” was introduced by and solely attributable to the words used by Payne’s counsel during his cross-examination of Whitten. Mr. Chatham asked the question “Well, I mean was she making romantic advances toward you?” The question posed suggests that the answer was yes. It was Payne’s counsel, through his question that suggested that Payne was involved in a romantic encounter with Whit-ten just before the accident. In Flowers v. State, 773 So.2d 309, 326(¶ 58) (Miss.2000), the supreme court held that “counsel must have a good faith basis for any question asked on cross-examination.... ” I am of the opinion that the evidence that Payne seeks to use as the basis for a mistrial is in fact evidence that came directly from her counsel suggesting the answers to Whitten.

¶ 21. Whitten’s testimony, ended the first day of the trial. The following morning, Payne’s counsel made a motion for a mistrial and sanctions for the willful nondisclosure of material and relevant information concerning the cause of the accident. The trial judge denied the motion and rejected Payne’s argument that this testimony constituted a discovery violation. Based on the arguments in the record, it appears that the trial judge believed that there was adequate notice of the “kissing incident” either through the pleadings or through Whitten’s deposition. It follows that the trial judge determined that Payne had sufficient notice that Whitten would claim Payne contributed to the accident. The trial judge found that this was simply a credibility question.

¶ 22. Based on how the testimony was elicited, I am of the opinion that it was not an abuse of discretion for the trial judge to admit the evidence. Thus, I would affirm the jury’s verdict.

LEE, P.J. AND IRVING, J., JOIN THIS SEPARATE OPINION.

      . Rule 33 of the Mississippi Rules of Civil Procedure governs interrogatories. Rule 33(a) provides that "[e]ach interrogatory shall consist of a single question.” Payne's interrogatory number 10 certainly asked more than one question. Although often ignored by litigants, this is an important part of the discovery rules, and it should be enforced.


author: IRVING, J.,

text:
    Consimeon GROSS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-KA-01142-COA.
    Court of Appeals of Mississippi.
    Sept. 5, 2006.
    Rehearing Denied Feb. 6, 2007.

      Robert T. Laster, Grenada, Phillip Broadhead, Oxford, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, P.J., IRVING, and CHANDLER, JJ.
   IRVING, J.,

for the Court.

¶ 1. At the conclusion of his jury trial, Consimeon Gross was convicted of five different counts arising from the possession and manufacture of various illegal substances. The Montgomery County Circuit Court sentenced Gross to a total of forty years in the custody of the Mississippi Department of Corrections as a result of the convictions. Aggrieved, Gross appeals and asserts the following errors, which we quote verbatim:

ISSUE ONE: WHETHER THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S MOTION FOR DIRECTED VERDICT, PEREMPTORY INSTRUCTION, AND JNOV WHEN THE STATE FAILED TO OFFER A SCINTILLA OF PROOF THAT THE PREMISES UPON WHICH THE DRUGS AND GUNS WERE FOUND WERE IN HIS EXCLUSIVE POSSESSION AND NO COMPETENT EVIDENCE CONCLUSIVELY LINKED HIM TO THE CONTRABAND.
ISSUE TWO: WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT JURY INSTRUCTION D-4, WHICH WOULD HAVE PROPERLY INSTRUCTED THE JURY AS TO THE LAW OF CONSTRUCTIVE POSSESSION, WAS SUPPORTED BY THE EVIDENCE AT TRIAL, AND WAS NOT COVERED IN ANY OTHER INSTRUCTION GRANTED BY THE TRIAL COURT.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Officers of the Montgomery County Sheriffs Department conducted surveillance on Gross’s residence for several months, during which time they observed numerous people going into the residence and then leaving shortly thereafter. Based on their suspicions, the officers obtained a search warrant for Gross’s residence. The warrant was executed as Gross was stopped and arrested for unrelated reasons. No one except the officers were at the house while the residence was searched.

¶ 4. The search of the residence yielded a considerable amount of contraband, including marihuana plants, a large amount of marihuana, heroin, ecstacy, cocaine, drug paraphernalia, and firearms. Some of the items, including the guns, were found in a “game room” that officers testified was located near the “front” of the house. Some of the contraband was found in a bathroom whose location in the house was not disclosed. The majority of the items were found in a plastic bag on top of a dresser in a bedroom. Again, no testimony was introduced to indicate where this bedroom was in the house. One of the officers who executed the search warrant testified that, when Consimeon’s wife arrived at the house and while Consimeon was in the officer’s vehicle, Consimeon said, “She don’t know nothing. She don’t know nothing.” Partially on the basis of that statement, the officers chose not to pursue charges against Gross’s wife.

¶ 5. In addition to the law enforcement officers who conducted surveillance on the house and executed the search warrant, the State put on an expert who testified about the analysis of the chemical makeup of the contraband discovered. The State also called Gross’s father-in-law, Rudolph Hobbs, the actual owner of the house, as a witness. Hobbs testified that he was “by there [the house] all the time” because the residence “is right there on the highway” and Consimeon and his family were the individuals living in the residence at the time of the search warrant.

¶ 6. Gross called only his cousin, Shalam-ice Bibbs, as a witness. The essence of Bibbs’s testimony was that, at the time of the search warrant’s execution in June of 2003, her cousin, Teresa, and her cousin’s husband, Mike, were staying with Gross and his family. Bibbs testified that Teresa and Mike stayed in the back of the house, while Gross and his family stayed in the front of the house. Bibbs also testified that she knew that Mike had done drugs, although she also testified that she had never seen him with any of the contraband seized from the house and she had not seen any drugs in the back bedroom of the house while Teresa and Mike were staying there.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Sufficiency of the Evidence

¶ 7. In this allegation of error, Gross alleges that the evidence is insuffi-dent to sustain his conviction. Gross bases his argument on his contention that the State failed to prove that he had constructive possession of the contraband seized from the residence. According to Gross, “[t]he evidence at trial tended to implicate the Appellant’s cousin and her live-in boyfriend, as they were, in fact, occupying the ‘apartment’ where the contraband was found.” Gross contends that no evidence was presented other than his proximity to the contraband to link him to the drugs and guns.

¶ 8. In order to succeed on a challenge to the sufficiency of the evidence supporting a conviction, a defendant must show that no “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Smith v. State, 925 So.2d 825, 830(¶ 10) (Miss.2006) (quoting Brown v. State, 907 So.2d 336, 339(¶ 8) (Miss.2005)). When reviewing a challenge to the sufficiency of the evidence, we view the record in the light most favorable to the State. Id. We review the lower court’s decision under an abuse of discretion standard. Id. (citing Brown, 907 So.2d at 339(¶ 8)). “As long as ‘reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense, [then] the evidence will be deemed to have been sufficient.’ ” Id. (quoting Brown, 907 So.2d at 339(¶ 8)).

¶ 9. In order to prove possession of an illegal substance, the State need not prove actual possession. Kerns v. State, 923 So.2d 196, 199(¶ 11) (Miss.2005) (quoting Curry v. State, 249 So.2d 414, 416 (Miss.1971)). Instead, the State may prove possession by showing that a defendant had constructive possession of an illegal substance: “Constructive possession may be shown by establishing that the drug involved was subject to his [the defendant’s] dominion or control.” Id. (quoting Curry, 249 So.2d at 416). “A presumption of constructive possession arises against the owner of premises upon which contraband is found.” Smith v. State, 839 So.2d 489, 497(¶ 21) (Miss.2003) (citing Hamm v. State, 735 So.2d 1025, 1029(¶ 13) (Miss.1999)). However, where an individual is not in exclusive possession of a premises, “additional incriminating facts must connect the accused with the contraband.” Ginn v. State, 860 So.2d 675, 685(¶ 32) (Miss.2003) (quoting Powell v. State, 355 So.2d 1378, 1379 (Miss.1978)).

¶ 10. We find the Powell case to be particularly illuminating on this issue. In Powell, the defendant, Powell, appealed her conviction on the basis of the sufficiency of the evidence. Powell, 355 So.2d at 1379. After the execution of a search warrant, marihuana was found in three locations in the house that Powell rented: the living room coffee table, a small ammunition box in front of the living room fireplace, and a larger ammunition box located in Powell’s bedroom closet. Id. Testimony indicated that Powell shared the house with other adults. Id. Testimony also indicated that there were many people who visited and had access to all the rooms of the apartment. Id. at 1379-80. Although recognizing that Powell did not have exclusive possession of the house, the court found that there were still additional incriminating facts sufficient to create a jury question. Id. at 1380.' Essentially, the only additional incriminating fact indicated by the Powell court was the discovery of some of the marihuana in Powell’s bedroom, although the court recognized that numerous individuals had access to the bedroom. No fingerprints or eyewitness testimony was presented to corroborate Powell’s ownership of the marihuana.

¶ 11. In the present case, Gross presented evidence regarding three different individuals who might have also had possession of the contraband: his wife, Teresa, and Teresa’s husband, Mike. As to Gross’s contention that the evidence more strongly implicates Teresa and Mike than Gross because the contraband was supposedly found in the back bedroom that Teresa and Mike used, we note that the record does not reflect that the contraband was found in a “back” bedroom. In fact, officers testified that some of the contraband was found in a “front” game room. The majority of the contraband was found in a bedroom, but no evidence at trial indicated where the bedroom was located in the house. “[W]e will not consider matters which do not appear in the record and must confine ourselves to what actually appears in the record. Moreover, we cannot decide an issue based on assertions in the briefs alone; rather, issues must be proven by the record.” Hodges v. State, 912 So.2d 730, 750(¶ 20) (Miss.2005) (quoting Medina v. State, 688 So.2d 727, 732 (Miss.1996)). Therefore, we cannot conclude from Gross’s brief alone that the contraband was found in the back bedroom where Teresa and Mike were allegedly staying.

¶ 12. Although Gross claims that the testimony of Bibbs regarding his cousin’s occupancy of the house is uncontested, we note that Hobbs testified that the sole occupants of the house at the time of the search warrant were Gross, Gross’s wife, and them two children. Hobbs did not mention Teresa or Mike when asked who occupied the house at the time of the search warrant. When conflicting testimony is presented, “the jury is the judge of the credibility of the witnesses.” Le v. State, 913 So.2d 913, 957 (¶ 164) (Miss.2005) (quoting Wetz v. State, 503 So.2d 803, 812 (Miss.1987)). Therefore, a reasonable jury could have chosen to believe Hobbs’s testimony over that of Bibbs and chosen not to believe that Teresa and Mike stayed with Gross.

¶ 13. As to the presence of Gross’s wife, we note Gross’s statement in the police car as his wife arrived that “she don’t know nothing.” While we decline to treat this statement as an explicit admission, as the State urges us to do, we find that it is additional incriminating evidence indicating that Gross had knowledge of the contraband while his wife did not. Therefore, there was sufficient additional incriminating evidence to meet the standard for constructive possession. On the facts before us, as in Powell, there is sufficient evidence supporting Gross’s conviction. A rational jury could certainly have found that the dominion and control needed to show constructive possession were present. Therefore, the court did not abuse its discretion in denying Gross’s motion for directed verdict, motion for a judgment notwithstanding the verdict, and Gross’s peremptory instruction.

2. Jury Instruction

¶ 14. In his second allegation of error, Gross contends that the court erred in denying his proposed instruction D-4. This instruction reads as follows: “The Jurors are instructed that where the premises upon which contraband is found is not in the exclusive possession of the accused, the accused in [sic] entitled to acquittal, absent some competent evidence connecting him with the contraband.” This instruction was refused by the court because the court found that its instruction, C-3, adequately covered the law of constructive possession. The court’s instruction reads:

To constitute possession of a controlled substance in any amount, there must be sufficient facts to warrant a finding beyond a reasonable doubt that the defendant was aware of the presence and character of the particular controlled substance, and was intentionally and consciously in possession of it. It need not be actual physical possession; constructive possession may be shown by establishing that the controlled substance was subject to the defendant’s dominion or control.

We note that no objection was lodged by the defense regarding C-3. The State contends that D-4 was properly denied because it is an incomplete statement of the law.

¶ 15. In general, a defendant is entitled to have instructions given that “represent his or her theory of the case, [but] an instruction that ‘incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence’ need not be submitted to the jury.” Foley v. State, 914 So.2d 677, 686(¶ 14) (Miss.2005) (quoting Entergy Miss., Inc. v. Bolden, 854 So.2d 1051, 1054(¶ 6) (Miss.2003)). If the instructions given by the court “fairly announce the law of the case and create no injustice,” then reversal is not required. Id. (quoting Entergy, 854 So.2d at 1054(¶ 6)).

¶ 16. We find that, as argued by the State, proposed instruction D-4 is an incomplete statement of the law on constructive possession. A court is not obligated to give an incomplete, and therefore incorrect, statement of the law as an instruction. See Davis v. State, 376 So.2d 1079, 1081 (Miss.1979). Despite solely arguing in his initial brief that the court erred in not giving D-4, Gross argues in his reply brief that “the Appellant is fully aware that instruction D^4, when taken alone and out of context, would also be insufficient.” Instead, Gross argues that D-4 and C-3 should have been given together to create a “complete and accurate statement of the law.”

¶ 17. We note first that this argument is barred on appeal, since neither Gross nor his attorney objected to court’s instruction C-3 as being an incomplete or inaccurate statement of the law on constructive possession. Failure to object to an instruction generally bars complaints regarding the instruction on appeal. See Lynch v. State, 877 So.2d 1254, 1268(¶ 33) (Miss.2004) (citing Duvall v. State, 634 So.2d 524, 526 (Miss.1994)). Procedural bar notwithstanding, we find that C-3 “fairly announee[d] the law of the case and create[d] no injustice,” in accordance with Foley.

¶ 18. While the addition of D-4 to C-3 would not have created an inaccurate statement of the law, C-3 as given was a sufficient statement of the law. The court’s instruction informed the jury that, in order to find Gross guilty, the contraband must have been subject to Gross’s “dominion and control.” In Ginn v. State, 860 So.2d 675, 680(¶8) (Miss.2003), the following instruction was given by the trial court:

In order to find the Defendant guilty of Possession of Pseudoephedrine/Ephed-rine, Methanol and Ether, being two (2) or more precursor chemicals or drugs, there must be sufficient facts to warrant a finding by the jury that the Defendant was aware of the presence and character of the substance and was intentionally and consciously in possession the [sic] substance. It need not be actual physical possession. Constructive possession may be shown by establishing that the substance was subject to the Defendant’s dominion or control.

(Emphasis added). The Mississippi Supreme Court affirmed this instruction given by the court, noting that “[t]he jury was thus properly instructed on constructive possession.... ” Id. at 680(¶ 9). This instruction, while not identical to instruction C-3 given in the present case, demonstrates that the instruction here was a sufficient and accurate statement of the law regarding constructive possession. Gross’s arguments to the contrary are without merit.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF MONTGOMERY COUNTY OF CONVICTION IN COUNT I OF POSSESSION OF LESS THAN ONE KILOGRAM BUT MORE THAN ONE OUNCE OF MARIHUANA WITH INTENT TO DISTRIBUTE ENHANCED BY POSSESSION OF A FIREARM AND SENTENCE OF A TERM OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; IN COUNT II OF POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE ENHANCED BY POSSESSION OF A FIREARM AND SENTENCE OF A TERM OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, SAID SENTENCE TO RUN CONSECUTIVELY TO THE SENTENCE IMPOSED IN COUNT I; IN COUNT III OF MANUFACTURE OF MORE THAN ONE OUNCE OF MARIHUANA BUT LESS THAN ONE KILOGRAM ENHANCED BY POSSESSION OF A FIREARM AND SENTENCE OF A TERM OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; IN COUNT IV OF POSSESSION OF ME-THYLENEDIOXYMETHAMPHETA-MINE ENHANCED BY POSSESSION OF A FIREARM AND SENTENCE OF A TERM OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; AND IN COUNT V OF POSSESSION OF HEROIN ENHANCED BY POSSESSION OF A FIREARM AND SENTENCE OF A TERM OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, THE SENTENCES IMPOSED IN COUNTS III, IV, AND V TO RUN CONCURRENTLY TO THE SENTENCES IMPOSED IN COUNTS I AND II, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONTGOMERY COUNTY.

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


author: ISHEE, J.,

text:
    Robert RICHARDSON, Appellant, v. AUDUBON INSURANCE COMPANY and Joe Clay Hamilton, as Administrator of the Estate of Willie Mae Dudley, Deceased, Appellees.
    No. 2005-CA-01215-COA.
    Court of Appeals of Mississippi.
    Oct. 3, 2006.
    Rehearing Denied Feb. 6, 2007.

      Felecia Perkins, attorney for appellant.
    Joe Clay Hamilton, Edward J. Currie, Jackson, attorneys for appellees.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Robert Richardson filed suit against Audubon Insurance Company (Audubon) and Joe Clay Hamilton, in his capacity as the administrator of the Estate of Willie Mae Dudley (the Estate), in the Circuit Court of Lauderdale County, alleging that Audubon wrongfully paid insurance proceeds to the Estate rather than to Richardson. Audubon and Hamilton filed separate motions for summary judgment. The court granted summary judgment in favor of Audubon and Hamilton on the basis that Richardson’s action was barred by the doctrine of collateral estoppel. Aggrieved, Richardson appeals. He presents the following issues for this Court’s review:

I. The circuit court erred in granting summary judgment to Audubon and Hamilton.
A. The circuit court erred in granting summary judgment based on collateral estoppel.
1. The issue involved in the second suit was not identical to the one involved in the previous suit.
2. The issue was not litigated in the chancery court.
8. Resolution of the issue was not necessary to the judgment in chancery court.
B. The circuit court erred in granting summary judgment because genuine issues of material fact exist which preclude summary judgment.
II. The circuit court erred in granting sanctions of $4,000 to Hamilton pursuant to the Litigation Accountability Act.

Finding no error, we affirm.

FACTS

¶ 2. Willie Mae Dudley owned two pieces of property in Meridian, Mississippi: a house located at 1523 Ninth Avenue, and a house located at 1802 Sixteenth Avenue. On November 18, 2000, Dudley died intestate, leaving behind no surviving spouse or children.

¶ 8. On December 5, 2000, the Chancery Court of Lauderdale County appointed Richardson, one of Dudley’s many heirs, as administrator of the Estate. Richardson retained attorney Hamilton to represent the Estate. On October 20, 2001, Richardson took out an Audubon fire insurance policy on the property located at 1523 Ninth Avenue. The policy listed the named insured as “Est. Of Willie Mae Dudley o/o Robert Richardson.” On June 21, 2002, after Richardson failed to file an annual accounting and failed to appear in court, the chancery court entered an order removing Richardson as the administrator of the Estate and appointing Hamilton as administrator in his stead.

¶ 4. After Hamilton was appointed administrator of the Estate, he filed numerous complaints and/or motions against Richardson in the Chancery Court of Lauderdale County to enjoin him from interfering with the administration of the Estate. In the first complaint, filed on February 5, 2003, Hamilton sought to recover from Richardson rental payments for the two houses owned by the Estate. Hamilton asserted that the Estate had not received rental payments from the tenants of the two houses because Richardson had been collecting and keeping the money. On April 15, 2003, the chancery court entered a judgment ordering Richardson to pay Hamilton rental payments on behalf of the Estate in the amount of $450.

¶ 5. Hamilton filed a second complaint to enjoin Richardson on June 20, 2003, asserting that he needed a key in order to have the property appraised, but that Richardson had been “totally uncooperative.” Consequently, Hamilton requested that the court order Richardson to turn over his keys to the property and enjoin him from entering the property. On July 18, 2003, the chancery court granted Hamilton’s request as to both houses, finding that Richardson’s actions interfered with the efforts of Hamilton to serve as administrator.

¶ 6. On September 4, 2003, Hamilton filed a motion asserting that one of the properties owned by the Estate had burned, but that the Estate had not received the insurance proceeds. Hamilton further asserted that the insurance company issued a check in the amount of $30,000 (payable to “Robert Richardson, Joe Clay Hamilton, and the Estate of Willie Mae Dudley”) and mailed it to Richardson. On October 3, 2003, the court entered an order approving Hamilton’s motion and ordering that the proceeds from the claim against Audubon be paid to Hamilton in his capacity as administrator of the Estate. The order was signed by the chancellor, Hamilton, and Richardson’s attorney, Leonard B. Cobb.

¶ 7. On April 6, 2004, Hamilton filed a third complaint asserting that Richardson had interfered with the administration of the Estate by: (1) collecting and retaining rent from property of the Estate, (2) making numerous telephone calls to Hamilton’s office claiming that he, Richardson, was the owner of all of the property of the Estate, and (3) occupying the property Hamilton was attempting to sell on behalf of the Estate. On May 12, 2004, the chancery court entered an agreed order requiring Richardson to turn over all keys to the house located at 1802 Sixteenth Avenue, to refrain from entering the property, and to stop contacting Hamilton, except through his attorney, Felecia Perkins.

¶ 8. Hamilton filed a final accounting and complaint to close the Estate on September 13, 2004, and on October 4, 2004, Richardson filed a response. On January 28, 2005, the chancery court entered a judgment finding that the $30,000 of Audubon insurance proceeds were assets of the Estate. The court further found that Richardson “failed to offer any evidence relevant to claims or expenses that he incurred or paid for the estate after the death of [Dudley].” Thus, the court approved Hamilton’s final accounting and denied Richardson’s request for the payment and/or reimbursement of funds from the Estate.

¶ 9. On January 7, 2005, Richardson filed suit against Audubon and Hamilton in the Circuit Court of Lauderdale County alleging that Audubon had wrongfully and maliciously failed to honor the terms of the insurance policy by refusing to pay him insurance proceeds in the amount of $30,000. Richardson further alleged that Hamilton unlawfully exercised dominion over the insurance proceeds and that his actions constituted tortious interference with business relations and negligent misrepresentation. Richardson also asserted that Audubon and Hamilton were liable for compensatory and punitive damages on the following grounds: breach of contract, breach of fiduciary duty, negligence and gross negligence, misrepresentation and fraud, and failure to reasonably investigate.

¶ 10. On March 10, 2005, Hamilton filed a motion for summary judgment asserting that the amount paid to him by Audubon as administrator of the Estate was paid pursuant to the order of the Chancery Clerk of Lauderdale County. Hamilton attached a copy of the chancery court order to the motion for summary judgment. Hamilton further asserted that all of the matters alleged by Richardson were dispensed with in a judgment entered by the chancery court on January 28, 2005.

¶ 11. On March 28, 2005, Audubon filed a motion for summary judgment asserting that the property insured by Audubon belonged to the Estate, and that, according to an order entered by the Chancery Court of Lauderdale County on November 28, 2001, thirty-three heirs of the Estate, including Richardson, owned an undivided interest in the property. Audubon further asserted that, on October 3, 2003, the chancery court ordered the insurance proceeds to be paid to Hamilton, as administrator of the Estate. The chancery court also entered a judgment on January 28, 2005, finding that Richardson was not entitled to payment from the Estate assets due to his interference with the administration of the Estate, and that he was not entitled to payment from the insurance proceeds. Based on these prior judgments of the chancery court, Audubon argued that it was entitled to summary judgment because Richardson’s claims were barred by the doctrine of collateral estoppel.

¶ 12. On May 2, 2005, the circuit court granted both motions for summary judgment. The court also granted Hamilton’s motion for sanctions, ordering Richardson and Perkins to pay Hamilton the sum of $4,000. Aggrieved, Richardson appeals.

ISSUES AND ANALYSIS

I.The circuit court erred in granting summary judgment to Audubon and Hamilton.
A. The circuit court erred in granting summary judgment based on collateral estoppel.
1. The issue involved in the second suit was not identical to the one involved in the previous suit.
2. The issue was not litigated in the chancery court.
3. Resolution of the issue was not necessary to the judgment in chancery court.
B. The circuit court erred in granting summary judgment because genuine issues of material fact exist which preclude summary judgment.

¶ 13. An appeal from summary judgment is reviewed de novo. Jacox v. Circus Circus Miss., Inc., 908 So.2d 181, 183(¶ 4) (Miss.Ct.App.2005) (citing Cossitt v. Alfa Ins. Corp., 726 So.2d 132, 136(¶ 19) (Miss.1998)). The standard by which we review the grant or denial of summary judgment is the same standard as is employed by the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. Id. (citing Dailey v. Methodist Med. Ctr., 790 So.2d 903, 906-07(¶ 3) (Miss.Ct.App.2001)). Pursuant to Rule 56(c) of the Mississippi Rules of Civil Procedure, summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” The evidence must be viewed in the light most favorable to the nonmoving party. Jacox, 908 So.2d at 184(¶ 4) (citing Dailey, 790 So.2d at 907).

¶ 14. Under this assignment of error, Richardson contends that summary judgment was not appropriate because the elements of collateral estoppel were not present in the court below. Collateral es-toppel precludes parties from relitigating issues that are actually litigated, determined by, and essential to the judgment in a former action, even though a different cause of action is the subject of the subsequent action. Hollis v. Hollis, 650 So.2d 1371, 1377 (Miss.1995) (citing Dunaway v. W.H. Hopper & Associates, Inc., 422 So.2d 749, 751 (Miss.1982)). In order for collateral estoppel to apply, the parties and their capacities must be the same from one suit to the next. Id. (citing State ex rel. Moore v. Molpus, 578 So.2d 624, 640 (Miss.1991)).

¶ 15. Richardson argues that, pri- or to the entry of the January 28, 2005 order, a petition to set aside had been filed, which prevented the chancery matter from being fully and finally adjudicated. Richardson next asserts that the issue involved in the case sub judice is not identical to the issue addressed in the chancery court. Finally, Richardson asserts that resolution of the circuit court issue was essential to the chancery court judgment. We disagree.

¶ 16. On October 3, 2003, the chancery court entered an agreed order directing that the proceeds from the claim against Audubon be paid to Hamilton in his capacity as administrator of the Estate. The order was signed by the chancellor, Hamilton, and Cobb, Richardson’s attorney. We find that the specific issue presented in the circuit court litigation, i.e., the rightful recipient of the insurance proceeds, was resolved in chancery court. Moreover, the parties in the case sub judice are identical to the parties in the chancery court litigation. Consequently, we find that the court below did not err in granting the motions for summary judgment. This issue is without merit.

II. The circuit court erred in granting sanctions of $4,000 to Hamilton pursuant to the Litigation Accountability Act.

¶ 17. When reviewing an award of sanctions under the Litigation Accountability Act, we are limited to a consideration of whether the trial court abused its discretion. Foster v. Ross, 804 So.2d 1018, 1022(¶ 13) (Miss.2002) (citing Scruggs v. Saterfiel, 693 So.2d 924, 927 (Miss.1997)). Mississippi Code Annotated section 11 — 55— 5(1) of the Litigation Accountability Act of 1988 provides in part that a court shall award:

reasonable attorney’s fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification, or that the action, or any claim or defense asserted, was interposed for delay or harassment.

Furthermore, Mississippi Code Annotated section ll-55-3(a) provides that a claim “without substantial justification” is a claim that is “frivolous, groundless in fact or in law, or vexatious, as determined by the court.” Pursuant to the Litigation Accountability Act, as well as Rule 11 of the Mississippi Rules of Civil Procedure, a claim is frivolous when the claimant has no hope of success. Leaf River Forest Prods. v. Deakle, 661 So.2d 188, 196-97 (Miss.1995) (quoting Smith v. Malouf, 597 So.2d 1299, 1303 (Miss.1992)).

¶ 18. Richardson asserts that his complaint against Audubon and Hamilton could not be considered frivolous because Audubon had a valid contractual obligation to its insured, i.e., Richardson. Interestingly, in his brief to this court, Richardson also admits that his complaint was filed in bad faith, stating that “[ajrmed with the convictions of one individual, a valid contract, lack of any evidence of assent by the individual to actions adverse to his interest, and the truth, the bad faith complaint was filed against Audubon and Hamilton to right a wrong that had transpired.” Despite this admission, Richardson further argues that the imposition of sanctions was not justified because there was no evidence of intent or willful neglect.

¶ 19. In his ruling from the bench, the circuit court judge found that Richardson’s claim had no hope of success because the rightful recipient of the insurance proceeds had been determined by an agreed order in October of 2003. The October 2003 agreed order, which was signed by Richardson’s former attorney, Cobb, directed Audubon to pay the insurance proceeds to the Estate. Additionally, the judge discussed a letter that Perkins introduced into evidence. In the letter, Cobb informed Perkins that Richardson fully authorized him to sign the agreed order. Because Perkins “obviously knew” about the foregoing evidence, the judge found that Richardson’s suit against Audubon and Hamilton was frivolous and awarded Hamilton $4,000 to compensate for the twenty hours he spent defending the lawsuit.

¶ 20. As previously discussed, we find that Richardson’s claim was clearly barred by the doctrine of collateral estoppel. Furthermore, regarding Richardson’s claim that he filed a “bad faith complaint” in order to right a wrong, we note the circuit court judge’s admonition, in his ruling from the bench, that “[i]f a party is dissatisfied with that decision then they appeal the Chancellor’s ruling to the State Supreme Court.” The judge went on to explain that, in such a situation, a party “[does] not institute a bad faith lawsuit against the insurance company and the estate.” We agree. Consequently, we find that the circuit court did not abuse its discretion in granting Hamilton’s motion for sanctions. This issue is without merit.

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

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

      . On April 4, 2003, Richardson filed a report and accounting covering October 20, 2000 through February 15, 2003. In the report, Richardson listed three premiums payments to Audubon and labeled them as financial expenditures for the Estate.

      . The house located at 1523 Ninth Avenue burned on July 1, 2003. Even though Richardson was no longer administrator of the Estate, he renewed the Audubon insurance policy for the property on July 3, 2002. A claim for coverage was subsequently submitted to Audubon.

      . Cobb withdrew as Richardson’s attorney on October 28, 2003.