author: WALLER, Presiding Justice,

text:
    MISSISSIPPI FARM BUREAU FEDERATION, Claiborne County Farm Bureau, Rankin County Farm Bureau, Amite County Farm Bureau, Lauderdale County Farm Bureau, Rural Insurance Agency, Inc., Southern Farm Bureau Life Insurance Company, Southern Farm Bureau Casualty Insurance Company, Mississippi Farm Bureau Casualty Insurance Company, Mississippi Farm Bureau Mutual Insurance Company, Marcus Martin, Dan Martin, Michael Bridwell, Randy Hynum and Tommy Allen v. Brenda ROBERTS, Barbara Rigdon, Martha Via, Becky Kirkland and Alinda White.
    No. 2004-IA-02016-SCT.
    Supreme Court of Mississippi.
    March 2, 2006.
    Rehearing Denied May 11, 2006.

      Amy K. Elder, Sam E. Scott, Dale G. Russell, Charles G. Copeland, Ken R. Ad-cock, Ridgeland, G. Michael Warren, attorneys for appellants.
    Mark T. McLeod, Diamondhead, Mitchell H. Tyner, Genevieve G. McLeod, attorneys for appellees.
    Before WALLER, P.J., DICKINSON and RANDOLPH, JJ.
   WALLER, Presiding Justice,

for the Court.

¶ 1. After the Circuit Court of Claiborne County denied a motion to sever, Appellants Mississippi Farm Bureau Federation, Claiborne County Farm Bureau, Rankin County Farm Bureau, Amite County Farm Bureau, Lauderdale County Farm Bureau, Rural Insurance Agency, Inc., Southern Farm Bureau Life Insurance Company, Southern Farm Bureau Casualty Insurance Company, Mississippi Farm Bureau Casualty Insurance Company, Mississippi Farm Bureau Mutual Insurance Company, Marcus Martin, Dan Martin, Michael Brid-well, Randy Hynum, and Tommy Allen [“defendants”] filed a petition for an interlocutory appeal, which we granted. Finding that the denial of the motion to sever constituted error, we reverse the circuit court’s order and remand this case for proceedings consistent with this opinion.

FACTS

¶2. Five plaintiffs, Brenda Roberts, a resident of Claiborne County; Barbara Rigdon, a resident of Lauderdale County; Martha Via, a resident of Rankin County; Becky Kirkland, a resident of Amite County; and Alinda White, a resident of Amite County (“plaintiffs”), alleged that each of them entered into contracts with some of the defendants, appointing them as independent agents for the purpose of selling insurance. They alleged that, even though they were good producers for the various companies, they were prevented from expanding their businesses, as promised, subjected to unfair treatment because they were women, and experienced undue pressure, harassment, discrimination, misdeeds and interference. More specifically, the complaint states the following causes of action:

1. Breach of contract: Defendants failed to provide assistance and support necessary to develop and maintain their businesses as promised; refused to allow plaintiffs to operate as independent agents as promised; failed and refused to perform their obligations under the contracts; prevented plaintiffs from performing their duties as assigned; subjected plaintiffs to verbal and emotional abuse; thwarted the plaintiffs’ efforts to produce and operate their businesses; effectuated a constructive discharge of the plaintiffs and breached the relationships and contracts between the parties.
2. Tortious bad faith breach of contract: Defendants intentionally caused plaintiffs’ businesses to fail and defendants’ actions were oppressive, fraudulent and malicious.
3. Fraud, intentional misrepresentation and negligent misrepresentation: Defendants represented to plaintiffs that their compensation would be based on commissions, yet intended to undermine plaintiffs’ abilities to receive commissions by stealing clients and switching accounts.
4. Conspiracy: Defendants conspired to steal plaintiffs’ clients so that defendants, not plaintiffs, would receive the commissions.
5. Intentional and negligent infliction of emotional distress.

¶ 3. The circuit court denied the defendants’ motion to sever, and the defendants requested permission to file an interlocutory appeal to this Court, which granted the request.

DISCUSSION

I. M.R.C.P. 20 JOINDER

¶ 4. Rule 20(a) of the Mississippi Rules of Civil Procedure provides that two or more plaintiffs may join their claims in one cause of action if the claims arise out of the same transaction, occurrence, or series of transactions or occurrences, and if there is any common question of law or fact. Both of these prongs of Rule 20(a) must be met in order to deny a motion for sever-anee. Wyeth-Ayerst Laboratories v. Caldwell, 905 So.2d 1205, 1207, (Miss.2005).

¶ 5. Mississippi Rule of Civil Procedure 20 gives trial courts broad discretion in determining when and how to try claims. Id. Therefore, appellate courts review trial court decisions regarding venue and joinder for abuse of discretion. Id. Cases involving a question of the propriety of Rule 20(a) joinder are reviewed on a case-by-case basis. Id. Before an alleged “transaction or occurrence” will pass muster under Rule 20(a), an appellate court must find a “distinct litigable event linking the parties.”, Id. at 1208. Another important consideration in deciding if joinder is appropriate is whether the proof presented to the jury would be confusing due to the multiplicity of the facts. Id. at 1209. We have held:

[The determination of whether a distinct litigable event linking the parties exists] includes, among other things, whether a finding of liability for one plaintiff essentially establishes a finding for all plaintiffs, indicating that proof common to all plaintiffs is significant. The appropriateness of joinder decreases as the need for additional proof increases. If plaintiffs allege a single, primary wrongful act, the proof will be common to all plaintiffs; however separate proof will be required where there are several wrongful acts by several different actors. The need for separate proof is lessened only where the different wrongful acts are similar in type and character, and occur close in time and/or place.

Ill. Cent R.R. v. Gregory, 912 So.2d 829, 834-35 (Miss.2005).

¶ 6. The defendants argue that joinder is improper in this case because:

(1) Each plaintiff entered into a separate contract with different insurance companies selling different types of insurance.
(2) The contracts were entered into at different times.
(3) The contracts were entered into in different counties (except for White and Kirkland, residents of Amite County who both entered into their separate contracts in Amite County).
(4) Each plaintiff worked for a different manager (with the exception noted above).
(5) Each plaintiff alleges a different set of facts.
(6) Each plaintiff would require different witnesses to prove her case.
(7) The circumstances underlying each plaintiffs resignation are separate and distinct.

The defendants also contend the only commonalities between the plaintiffs’ allegations are that they were each dissatisfied with their employment and they each sold insurance for a Farm Bureau insurance company. The plaintiffs add that the contract signed by each of them is substantially the same contract.

¶ 7. The plaintiffs all allege breach of contract, negligent and intentional torts, conspiracy, and fraud; however, they worked under different supervisors in different locations, and were subject to several different alleged circumstances at different times. Inasmuch as proof of the fraud and conspiracy claims alone would require intricate factual narratives and multiple witnesses, the amount of evidence that would have to be introduced to prove all the claims in one trial would certainly overwhelm a jury. It is important to note that no plaintiff has claims against every defendant.

¶ 8. The only alleged distinct litigable events which could tie together the plaintiffs claims against the defendants are the fraud and conspiracy claims. The complaint, however, does not state any specific facts to support such claims. In their depositions, the plaintiffs make vague, con-clusory statements about Farm Bureau forcing out long-term agents so the managers can reap the rewards of the agents’ hard work. These same issues were discussed in a recent severance case, MS Life Ins. Co. v. Baker, 905 So.2d 1179 (Miss.2005), in which we held that severance was appropriate because:

Though the forty-five plaintiffs in this case have lodged multifarious complaints of deception by Mississippi Life in their pleadings, motions, and briefs, they have failed to present any evidence which specifically identified any common misrepresentation to all plaintiffs by Mississippi Life, either written or oral....

Id. at 1155-86., The Baker court quoted with favor McLemon v. Source Int’l, Inc., 701 F.Supp. 1422 (E.D.Wis.1988), as follows:

In order to satisfy Rule 20(a), [plaintiffs] must allege that their claims arise from one or more uniform misrepresentations. To do so, they must specifically identify which representations and/or omissions, if any, were made to all plaintiffs. If the representation was written, the writing in which the representation appeared and the date of publication must be set forth. That plaintiffs’ claims may be premised on oral misrepresentations does not preclude joinder, provided plaintiffs allege that the substance of the oral representations was standardized ....

701 F.Supp. at 1425-26 (emphasis in original).

¶ 9. We find the plaintiffs have woefully failed to provide sufficient facts to prove their claims of fraud and conspiracy can withstand severance. To meet the above standards, there should be a showing that all of the plaintiffs’ managers had a common plan in place prior to the hiring of the plaintiffs to induce the plaintiffs to work hard and sell insurance policies with recurring premiums and then force the plaintiffs to resign so the managers could receive the percentage of the recurring premiums.

¶ 10. Therefore, we find the circuit court erred in denying the defendants’ motion to sever because the plaintiffs cannot show a distinct litigable event; and because all the actions complained of occurred (except for the two Amite County plaintiffs) in separate counties, in separate offices and were performed by different and separate actors.

¶ 11. We order the circuit court to sever and dismiss all causes of action filed by plaintiffs who were improperly joined. Said dismissal shall be without prejudice for each plaintiff to file a new complaint in an appropriate venue.

II. MOTION FOR CHANGE OF VENUE.

¶ 12. The plaintiffs argue that the defendants have waived their claim for change of venue because they did not raise this issue in the circuit court. The record shows that all of the defendants’ answers to the complaint contained motions to change venue. The Rural . Insurance Agency, the Southern Farm Bureau Life Insurance Company, the Southern Farm Bureau Casualty Insurance Company, the Mississippi Farm Bureau Casualty Insurance Company and Mississippi Farm Bureau Mutual Insurance Company also filed a separate “motion to sever and transfer venue.” The other defendants joined in this motion. The circuit court, however, ruled only upon the severance part of the motion. The defendants immediately thereafter filed a motion for permission to take an interlocutory appeal.

¶ 13. The defendants did not waive their motion for change of venue. The motion was considered by the circuit court when it considered the severance portion of the motion. For reasons not due to any action or non-action of the defendants, the circuit court did not rule upon it.

III. MOTION TO DISMISS.

¶ 14. Defendants contend the Mississippi Farm Bureau Federation, the Claiborne County Farm Bureau, the Rankin County Farm Bureau, the Amite County Farm Bureau, and the Lauderdale County Farm Bureau should be dismissed because this action is based on allegations of breach of contract and these entities did not enter into any contracts with the plaintiffs and are not in the business of selling insurance. The plaintiffs respond that, even though motions to dismiss were filed in the circuit court, they were not considered on the merits; therefore the issue may not be considered on appeal.

¶ 15. In the interest of judicial economy, a motion to dismiss not considered by the trial court may be ruled upon on appeal. See, e.g., Watters v. Stripling, 675 So.2d 1242, 1244 (Miss.1996). However, we find the motion to dismiss is more appropriate for consideration by the trial court. The complaint shows that, even though there is a cause of action for breach of contract, there are also causes of action for fraud, intentional misrepresentation, and negligent misrepresentation, conspiracy, and intentional and negligent infliction of emotional distress. And, even though the complaint does not state any specific facts against these defendants, plaintiffs do state specific facts against these defendants in their briefs before this Court. Because the issue appears to be complex, we decline to address the motions to dismiss.

CONCLUSION

¶ 16. We reverse the circuit court’s denial of defendants’ motions to sever and to transfer venue. We remand this matter to the circuit court with instructions to dismiss without prejudice the non-Claiborne County plaintiffs so that they may refile their complaints in .an appropriate venue.

¶ 17. REVERSED AND REMANDED.

SMITH, C.J., COBB, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

      . Via, Rigdon, Roberts and White had contracts with Southern Farm Bureau Life, Southern Farm Bureau Casualty, Miss. Farm Bureau Casualty and Miss. Farm Bureau Mutual. Kirkland did not specify with which defendants she had contracts.

      . Rule 20 provides in part as follows:
      (a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences, and if any question of law or fact common to all these persons will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences, and if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.

      . The dismissal of a plaintiff's "duly commenced” case based solely on misjoinder and improper venue would constitute dismissal for a matter of form, bringing into play the provisions of Miss.Code Ann. § 15-1-69 (Rev. 2003), which provides that "the plaintiff may commence a new action for the same cause, at any time within one year....” The "new action” would, of course, be subject to the same affirmative defenses and substantive challenges as was the original suit.


source: Caselaw Access Project

license: Public Domain

text:
    Christopher MORRIS v. STATE of Mississippi.
    No. 2000-CT-00822-SCT.
    Supreme Court of Mississippi.
    March 16, 2006.
    Rehearing Denied May 11, 2006.

      Derek D. Hopson, Sr., Clarksdale, Howard Brown, Jackson, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
   ON WRIT OF CERTIORARI

WALLER, Presiding Justice,

for the Court.

¶ 1. Christopher Morris was convicted of simple assault upon a law enforcement officer and sentenced to five years with one and one-half of those years suspended. Morris’s appeal was assigned to the Court of Appeals, see M.R.A.P. 16(c), which reversed and remanded for a new trial. See Morris v. State, 927 So.2d 751, 2005 WL 2277614 (Miss.Ct.App., Sept.20, 2005). Having considered Morris’s claims of prosecutorial misconduct, insufficient police investigation and insufficiency of the evidence, we affirm the circuit court’s judgment.

FACTS

¶ 2. Suspecting Morris of stealing a pair of shoes from a shoe store, Officer Chambers, a Clarksdale police officer, pursued Morris. According to Officer Chambers, Morris brandished a gun. In response, Officer Chambers fired his gun at Morris. After he was apprehended, Morris was charged with simple assault upon a law enforcement officer. Morris’s defense at trial was that he did not have a gun in his possession and the police planted the gun in an attempt to cover up an unjustified use of force by police.

¶ 3. On the day Morris’s trial was set to begin, defense counsel presented the State with a list of nineteen previously undisclosed defense witnesses. After the State made an ore tenus motion to exclude the defense witnesses, the circuit court held a hearing. The State argued the late disclosure prejudiced the State because it did not know what the proposed witnesses’ testimony would be. Then defense counsel made a proffer of each of the proposed witnesses’ testimony. Some witnesses were permitted to testify; some were excluded; and some were withdrawn by Morris.

¶ 4. Only two of the witnesses who were excluded are at issue on appeal. Tasha Leflore would have testified that Officer Chambers asked Morris if he had stolen the shoes; Morris responded that he had not; and then Morris walked away. She did not see Morris with a gun. Nathaniel Parish would have testified that he saw a white-handled pistol in Officer Chambers’ back pocket — the same type of gun Morris allegedly pointed at Officer Chambers. The circuit judge excluded these two witnesses, finding that their testimony would prejudice the State.

¶ 5. Morris was subsequently convicted of simple assault upon a law enforcement officer. On appeal, Morris asserts as error: (1) discovery violations by the police department and district attorney’s office warranting a reversal of the verdict or a new trial; and (2) insufficiency of the evidence to support the verdict. On the discovery issue, Morris alleges local police either knew of his potential witnesses and failed to disclose their .identities to him or should have known of the witnesses but did not because of an inadequate investigation. Morris contends these actions or failures to act caused him to be late in designating these witnesses. The Court of Appeals reversed and remanded for a new trial, finding that the circuit judge abused his discretion in not allowing Morris’s alibi witnesses to testify. We granted the State’s petition for writ of certiorari. See M.R.A.P. 17.

DISCUSSION

I. WHETHER THE CIRCUIT COURT ERRED IN EXCLUDING LEFLORE AND PARISH’S TESTIMONY.

¶ 6. The Court of Appeals held that it was error for the circuit court to exclude the testimony of Tasha Leflore and Nathaniel Parish. The State asserts that (1) because Morris did not raise this issue on appeal, the Court of Appeals should not have addressed it; (2) the actual issue raised by Morris was whether discovery violations by the police and district attorney’s office warranted a reversal of the circuit court’s verdict or a new trial; and (3) it was inappropriate for the Court of Appeals to address this issue because issues not raised in an appellate brief should not be considered on appeal. See Sanders v. State, 678 So.2d 663, 666-70 (Miss.1996); Boykin v. Boykin, 565 So.2d 1109, 1112 (Miss.1990); Palmer v. Biloxi Regional Medical Center, Inc., 564 So.2d 1346, 1360 (Miss.1990).

¶ 7. The Court of Appeals held that, although Morris framed his argument as one concerning discovery violations by the State, the real issue centered around the circuit court’s exclusion of defense witnesses. “The crux of the issue is whether Morris was prejudiced by the trial court’s excluding and/or limiting the testimony of certain defense witnesses.... ” Morris, 927 So.2d at 753, 2005 WL 2277614, at *2. We find the Court of Appeals properly addressed the issue because it implicates a basic constitutional right-the Sixth Amendment’s Compulsory Process Clause. See, e.g., Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988).

¶ 8. In criminal cases which have issues pertaining to the exclusion of evidence or witnesses due to discovery violations, we look to Mississippi Rule of Uniform Circuit and County Court Practice 9.04(1), which provides that, if, prior to trial, the circuit court is made aware of one party’s failure to comply with an applicable discovery rule, it has the discretion to allow such evidence to be presented at trial, to grant a continuance, or to enter such an order as it deems just under the circumstances. If the circuit court determines that the defendant’s newly-discovered evidence or witnesses are prejudicial to the State, the State must ask for a continuance so that it may review the evidence or interview the witnesses and thus become prepared to counter the same. Even if the State does not ask for a continuance, the circuit court cannot exclude the evidence. Carraway v. State, 562 So.2d 1199, 1203 (Miss.1990). To do so would be to violate the Compulsory Process Clause.

¶ 9. There is an exemption to this procedure, however: if the circuit court determines that the “defendant’s discovery violation is ‘willful and motivated by a desire to obtain a tactical advantage,’ ” the newly-discovered evidence or witnesses may be excluded. Id. at 1203 (quoting Darby v. State, 538 So.2d 1168, 1176 (Miss.1989)); see also Taylor, 484 U.S. at 415, 108 S.Ct. 646. We find Morris’s discovery violation was willful and motivated by a desire to obtain a tactical advantage, and therefore the circuit court, even though it did not use the proper procedure, properly excluded the evidence. The only reason proffered by Morris for failure to designate these witnesses sooner was the police department’s failure to find these witnesses and give the names to Morris through discovery. The record shows that, while defense counsel had two hearings in federal court the week prior to Morris’s trial, defense counsel had represented Morris since the arraignment which was held approximately six weeks prior to the trial. Morris violated the discovery rule by failing to give the State the defense’s witness list when the State provided its list to defense counsel. Defense counsel waited until the weekend prior to the trial, which began on a Monday, to find defense witnesses. Finally, and most importantly, instead of giving the list of defense witnesses to the State one or two days prior to trial, defense counsel waited until the morning the trial began. To blame the prosecution or the police department for his own failure to investigate and failure to abide by the discovery rules is disingenuous at best. This issue is without merit.

II. WHETHER MORRIS’S RIGHT TO A FAIR TRIAL WAS VIOLATED BY THE STATE’S ALLEGED DISCOVERY VIOLATIONS AND THE POLICE’S ALLEGED INSUFFICIENT INVESTIGATION.

¶ 10. Morris contends that the State committed serious discovery violations by failing to provide the names of witnesses potentially helpful to Morris’s case in a timely fashion. He argues that the State’s delay in the production of those names forced him. to produce a list of ■witnesses he intended to call at the last minute before trial. However, the record is devoid of any evidence of discovery violations or undue delay by the State in producing the identities of potential witnesses, and Morris failed to present any evidence or testimony that would lead to the conclusion that the State waited to produce a list of witnesses to the defense.

¶ 11. In response to defense counsel’s allegation of delay during the hearing on the State’s motion to exclude Morris’s witnesses, the State asserted that it did not even know who some of the proposed witnesses were or what connection they had with the case against Morris. Specifically concerning the two witnesses at issue in this appeal, Leflore and Parish, Morris simply made no showing how the police could have known of them and thus failed to disclose them.

¶ 12. “For a discovery violation to require reversal there must be a showing of prejudice and the non-disclosed material must be more than simply ‘cumulative.’ ” McCoy v. State, 811 So.2d 482, 484 (Miss.Ct.App.2002) (citing Prewitt v. State, 755 So.2d 537, 541 (Miss.Ct.App.1999); Buckhalter v. State, 480 So.2d 1128, 1128 (Miss.1985)). There is nothing in the record showing knowledge on the part of the State of either Leflore or Parish. Morris simply cannot substantiate his claims against the State and, thus, cannot show that a discovery violation was committed by the State or that he was prejudiced in any way.

¶ 13. Concerning Morris’s claim that an inadequate police investigation warrants reversal of the verdict against him, we have held that the sufficiency or insufficiency of a police investigation simply goes to the weight of the evidence, and it is for a jury to decide what to believe. Cox v. State, 849 So.2d 1257, 1267 (Miss.2003). Even though Morris claimed prejudice because the police and/or the DA’s office failed to find certain witnesses who would have helped him in his defense, he put on no proof at trial of an alleged inadequate investigation.

¶ 14. These claims are without merit.

III. SUFFICIENCY OF THE EVIDENCE.

¶ 15. Morris argues the evidence was insufficient to sustain a conviction against him. When considering the sufficiency of evidence, we must decide 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 (Miss.2005). The State produced evidence and witnesses tending to show that Morris did indeed commit simple assault upon a police officer. While it is true Morris called his own witnesses to contradict the State’s evidence, we cannot say that any rational trier of fact could not have found the essential elements of the crime beyond a reasonable doubt, particularly when the evidence is viewed in the light most favorable to the State. Accordingly, Morris’s assertion of error is without merit.

CONCLUSION

¶ 16. We find the State did not commit any discovery violations that resulted in prejudice to Morris; that the circuit court did not abuse its discretion in excluding Morris’s witnesses; and that the verdict was amply supported by the evidence. We reverse the decision of the Court of Appeals and reinstate and affirm the judgment of and sentenced imposed by the Circuit Court of Coahoma County.

¶ 17. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY IS REINSTATED AND AFFIRMED.

SMITH, C.J., COBB, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ„ CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J„ NOT PARTICIPATING.

      . The Compulsory Process Clause bestows upon a criminal defendant “the right to compel the presence and present the testimony of witnesses.” Taylor, 484 U.S. at 409, 108 S.Ct. 646.


author: LEE, P.J.,

text:
    Christopher MORRIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2000-KA-00822-COA.
    Court of Appeals of Mississippi.
    Sept. 20, 2005.
    Derek D. Hopson, Clarksdale, Howard Brown, Jackson, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
   LEE, P.J.,

for the Court.

MODIFIED OPINION ON MOTION FOR REHEARING

¶ 1. The Appellee’s motion for rehearing is denied. The original opinion is withdrawn and this opinion is substituted.

■ ¶ 2. Christopher Morris appeals from a judgment entered in the Circuit Court of Coahoma County pursuant to a jury verdict finding him guilty of simple assault on a law enforcement officer. In this appeal, he raises two issues: (1) whether the trial court erred as a matter of law by not granting appellant a new trial due to dis: covery violations, and (2) whether the jury verdict should be reversed because the evidence was against the overwhelming weight of the evidence and insufficient to support the verdict. Finding error, we reverse and remand.

FACTS

¶3. Clarksdale police identified Morris for suspicion of stealing a pair of tennis shoes from Shoe City. Apparently, when the police attempted- to stop Morris on a city street, he would not cooperate, and at some point, the police fired a shot at Morris after he allegedly pointed a gun at Officer John Chambers. It appears that Morris’s defense was that the police had the wrong suspect, and since the erroneous targeting of him had resulted in the police firing a shot at him without justification, the police, in order to justify the shooting, planted a gun at the scene. In other words, Morris apparently contended a police cover-up regarding the gun, as he steadfastly denied he had a gun or pointed a gun at Officer Chambers. Morris was convicted of simple assault for pointing a gun at Officer Chambers.

¶ 4. On the day of trial, the State presented an ore tenus motion to exclude certain defense witnesses. The State explained to the court that Morris’s attorney had served the State with a list of nineteen witnesses and that the State would be prejudiced if these witnesses were allowed to testify, given the late disclosure as the State was unaware of what their testimony would be.

¶ 5. The trial judge asked Morris’s attorney to explain the substance of each witness’s testimony so he could assess whether undue prejudice to the State existed. Four of the witnesses, who were also on the State’s list, were allowed to testify. The judge excluded the testimony of two witnesses because he found that their testimony would be prejudicial to the State. Also, the judge reserved ruling on two other witnesses pending the ability of the State to question them before they took the stand. An unknown female officer of the Clarksdale Police Department, either Ulyda Johnson or Tonya Williams, was allowed to give limited testimony. Other witnesses were withdrawn by Morris during the hearing on the ore tenus motion. Additional facts will be given as needed during the discussion of the issues.

ANALYSIS AND DISCUSSION OF ISSUES

1. Discovery Violations

¶ 6. Morris asserts that either the verdict should be reversed or a new trial granted due to discovery violations by the State. Morris contends that the State violated the discovery rules because the State had the names of the witnesses in question prior in time to his attorney obtaining the names. He explains that because the police department was aware of these witnesses since the night of the incident, that knowledge should be imputed to the State. Thus, Morris argues that the names he provided to the State, on the day of trial were already known to the State and should have been given to. him pursuant to his timely motion for discovery which requested that “[a]ll evidence or information in possession of police or prosecutor which tends to exculpate defendant or which aids in the preparation of a defense” be given to Morris.

¶ 7. Although Morris frames his argument in this manner, the crux of the issue is whether Morris was prejudiced by the trial court’s excluding and/or limiting the testimony of certain defense witnesses, namely Linda Leflore, Tasha Leflore, Nathaniel Parish, Edward Robinson, Mahogany Benson, Sergeant Bennie Christian and Officer Tonya Williams. For reasons we will proceed to explain, this. Court finds the trial court abused its discretion in the exclusion of Nathaniel Parish and Tasha Le-flore.

¶ 8. At the time the Court considered this case originally, Morris had not favored us with a transcript of the trial testimony. All we had to consider was the transcript of the hearing on the State’s motion to deny Morris the right to call certain witnesses because Morris’s counsel was tardy in disclosing them to the State. Since, as the State correctly argues, it is the appellant’s responsibility to provide this Court with a record sufficient .to support the allegations of error, a responsibility which was not met by Morris, we were somewhat reluctant to find error in Morris’ counsel’s failure to properly identify the, real issue as a result of what transpired in the court below. Morris characterizes the issue as a discovery violation on the part of the State which, in his opinion, entitles him to a new trial, when in fact it was he who committed the discovery violation that led to the preclusion of certain defense witnesses. While it may be true, as Morris contends, that the State may .not have been fully forthcoming with the discovery requested by Morris, it is a stretch to conclude that the State’s failure, if any, created the situation. Nevertheless, because of the - seriousness of the offense of which Morris was convicted and to ensure that a manifest injustice does not occur, we reach what we consider to be the real effect of -the discovery violation on the part of Morris.

¶ 9. Since this cáse has been on rehearing, we have had the trial testimony transcribed. However, we were satisfied, from the transcript of the hearing on the State’s motion to disallow the testimony of the witnesses who were disclosed by Morris’s counsel at the eleventh hour, that enough information existed in order for us to conclude that Morris’s defense was sufficiently impacted in a negative way so as to afford -the relief granted. Having now read the- transcript in full, we are convinced that our initial conclusion was correct.

¶ 10. ' As already observed, the trial court, during the State’s ore tenus motion, instructed Morris to 'explain the substance of each witness’s testimony so that the judge could assess the potential prejudicial effect on the State. After’ getting the synopsis of each witness’s testimony, the trial court allowed limited testimony from Linda Leflore, a bystander, who observed the shooting. She testified that she did not see Morris with a gun and did not see Morris fire a gun. Tasha Leflore, daughter of Linda Leflore, would have testified that she saw Officer Chambers stop Morris and ask him if he had stolen some shoes and that Morris told him “no,” and turned to walk away. She also would have testified that she did not see Morris with a gun. Nathaniel Parish, an onlooker, would have testified that Officer Chambers had a white-handled pistol in his back pocket. Officer Chambers testified that Morris pointed a gun at him. According to representations made by Morris’s counsel during the hearing on the motion, Officer Bennie Christian would testify that he put handcuffs on Morris and that no gun was found at the scene. According to further representations by Morris’s counsel, the unidentified - female police officer would corroborate Officer Christian’s testimony in this regard. Since we do not find error in the trial court’s limiting the testimony of other witnesses, we will not discuss their testimony.

¶ 11. “[T]he standard of review when a trial court institutes sanctions for discovery abuses is ‘whether the trial court abused its discretion in its decision.’ ” Gray v. State, 799 So.2d 53, 60 (¶ 26) (Miss.2001) (citing Kinard v. Morgan, 679 So.2d 623, 625 (Miss.1996)). “The trial court has considerable discretion in matters pertaining to discovery, and its exercise of discretion will not be set aside in the absence of an abuse of that discretion.” Id. This Court must decide whether the trial court could have properly made the decision which it made. Caracci v. Int’l Paper Co., 699 So.2d 546, 556 (¶ 16) (Miss.1997). Under this standard, an appellate court will affirm unless there is a definite and firm conviction by the appellate court that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors. Id.

¶ 12. While avoiding unfair surprise to either the defense or prosecution is a fundamental policy of criminal procedure, nothing is more fundamental than an accused’s right to present witnesses in his own defense. Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Ray v. State, 503 So.2d 222, 225 (Miss.1986). Generally, exclusion of a defendant’s witnesses is reserved for cases in which the defendant or counsel willfully violates discovery in order to gain a tactical advantage. Houston v. State, 531 So.2d 598, 612 (Miss.1988).

¶ 13. Uniform Rules of Circuit and County Court Rule 9.04, subpart I provides:

If at any time prior to trial it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, or enter such other order as it deems just under the circumstances.
If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows:
1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and
2. If after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.
3. The court shall not be required to grant either a continuance or mistrial for such a discovery violation if the prosecution withdraws its efforts to introduce such evidence.
The court shall follow the same procedure for violation of discovery by the defense.

¶ 14. As already observed, the State’s ore terms motion was made on the day of the trial but prior to the commencement of the trial. The judge did not allow the State to interview Parish or Leflore because the State argued that it would be prejudiced, and the judge agreed. The State did not ask for a continuance nor was one offered by the judge. The court simply excluded the testimony of Parish and Leflore based on the State’s argument of prejudicial effect. Excluding the evidence is one of the options allowed by the rule if objection is made “during the course of the trial.” URCCC 9.04(I)(2). However, prior to the commencement of trial, the rule specifies that the “court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance or enter such other order as it deems just under the circumstances.” URCCC 9.04(1). It is unclear from the rule whether excluding the evidence is an available option under the umbrella provision which allows the trial court to “enter such other order as it deems just under the circumstances” in cases where objection is made prior to trial. It may be. Even if such option is available, it may be an abuse of discretion to exclude certain kinds of evidence. We find that to be the case here.

¶ 15. Morris’s defense was that he never had a gun and that the gun found was planted in order to cover up the police’s mistake of chasing the wrong man. Morris’s attorney explained to the judge that Tasha Leflore and Nathaniel Parish would testify that they saw Officer Chambers with a white pearl-handled gun in his back pocket. Moreover, Morris’s attorney explained that the importance of Leflore’s testimony goes to his theory that identifying Morris was a “screw up” and finding the gun later was a cover up. His attorney further explained “what she (Tasha Leflore) saw in the particular alley and the length of time the police officers stayed there looking for a gun and ... that no gun was found until after Sergeant Christian left. And that’s when they came out with a pearl-handled pistol in the back, John Chambers had it in the back of his pants.” In addition, Morris’s attorney explained that no witness besides Parish would testify that Officer Chambers had a pearl-handled gun in his back pocket. Further, according to unrefuted representations made by Morris’s counsel during the motion hearing, no fingerprints were found on the gun. We conclude that Parish’s testimony was key to Morris’s defense, and to exclude it amounts to an abuse of discretion. We reverse and remand to the trial court for a new trial.

2. Sufficiency of the Evidence

¶ 16. Morris contends that the evidence was insufficient to support the verdict and that the verdict was against the overwhelming weight of the evidence. Because of our decision on the first issue, we do not find it necessary to assess the sufficiency of the evidence nor review whether the verdict was against the overwhelming weight of the evidence.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

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

      . During the hearing on the motion, Morris's counsel was unsure of the identity of the police officer but thought she wás Ulyda Johnson. However, in his appellate brief, Morris discusses Tonya Williams, not Ulyda Johnson.


author: CHANDLER, J.,

text:
    Ernest Glenn LANCASTER, Linda Jean Lancaster Dykes, Helen Elaine Lancaster Stevens and Cynthia Renee Lancaster Dugas, Appellants. v. Robert Kendrick BOYD, Appellee.
    Nos. 2004-CA-00306-COA, 2001-CA-00187-COA.
    Court of Appeals of Mississippi.
    Nov. 29, 2005.
    Rehearing Denied May 2, 2006.

      Derek E. Parker, Yazoo City, attorney for appellants.
    Samuel H. Wilkins, Kyle Bond Ains-worth, Jackson, attorneys for appellee.
   CHANDLER, J.,

for the Court.

¶ 1. Ernest Lancaster and Robert Boyd were close friends for more than twenty years. Lancaster suffered from prostate cancer and a broken hip and resided in Boyd’s home after he was released from the hospital. While he was living in Boyd’s home, Lancaster conveyed sixty-one acres of land to Boyd. Lancaster’s children learned of the property transfer after Lancaster’s death and filed a motion to set aside the deed, which the Yazoo County Chancery Court denied. Lancaster’s children appealed, and this Court reversed and remanded. On remand, a different chancellor denied the Lancaster children’s motion to set aside the deed. Lancaster’s children appeal again, raising the following issues:

I. WHETHER THE CHANCELLOR ■ERRED IN FINDING THAT BOYD HAD OVERCOME THE PRESUMPTION OF UNDUE INFLUENCE
II. WHETHER LANCASTER WAS COMPETENT TO EXECUTE THE PROPERTY TRANSFER
III. WHETHER . THE DEED SHOULD BE SET ASIDE FOR LACK OF CONSIDERATION

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Robert Boyd and Ernest Lancaster were close friends for twenty-two or twenty-three years, until Mr. Lancaster died on March 1, 1998. Lancaster purchased a mobile home which was situated on a piece of property owned by Boyd. Lancaster did not pay Boyd rent for the property where the mobile home was situated. Boyd estimated that he stayed at Lancaster’s mobile home approximately seventy-five to eighty percent of the time. Lancaster worked in the convenience store owned by Boyd located next to the mobile home. Boyd did not pay Lancaster wages, but Lancaster received all of his groceries, gas, cigarettes, and utilities from the store free of charge. For a period of ten years, Boyd had authority to write checks on Lancaster’s bank accounts, and Lancaster had the authority to write checks on the store account.

¶ 4. Lancaster was hospitalized from December 9 to December 22, 1997, with a broken hip and prostate cancer. During the period of hospitalization, Lancaster’s children and Boyd rotated times staying with him at the hospital. When Lancaster was released, he stayed in Boyd’s home in Florence, Mississippi. Lancaster’s children continued to visit with Lancaster and occasionally stayed overnight.

¶ 5. On December 30, 1997, Lancaster executed a warranty deed conveying sixty-one acres of land in Yazoo County to Boyd. Boyd’s attorney prepared the warranty deed, at Boyd’s request, after Boyd obtained the legal description of the property. Boyd testified that Lancaster had been discussing granting the property to Boyd for two or three years prior to the transaction, and Lancaster instructed Boyd to obtain the legal description of the land so that he could execute the transfer of property.

¶ 6. Sammy Ainsworth, Vice President/Branch Manager for the Trustmark Bank of Florence, notarized the signature to the warranty deed. It was his testimony that Lancaster knew and appreciated what he was doing.

¶ 7. Elaine Stevens, one of Lancaster’s daughters and one of the appellants, testified that her father was ordinarily diligent about keeping his financial affairs in order and knew what property he owned. However, the deed from Lancaster to Boyd contained property that Lancaster had sold to Elaine and her husband in 1975. Stevens testified that if her father knew what he was doing when he transferred the deed to Boyd, he never would have executed a deed that included property that he did not own. Stevens also testified that the drugs her father was taking following the hospitalization made him drowsy and unaware of what was going on.

¶ 8. While Lancaster was staying at Boyd’s home, he received an evaluation by a registered nurse, Cynthia Luby. Luby’s evaluation was conducted on the same day the deed was executed and lasted for approximately one hour and a half. Luby noted that Lancaster was alert, but forgetful, and was able to answer questions coherently. Luby further testified that Lancaster was knowledgeable about the medications he was taking and that he appeared to understand her questions and responded to her questions.

¶ 9. On May 15, 1998, Lancaster’s children filed a complaint to set aside the warranty deed. The Yazoo County Chancery Court denied the complaint to set aside the deed. All parties agreed that a confidential relationship existed between Lancaster and Boyd, but Lancaster’s children argued that Boyd had not presented sufficient evidence to rebut a presumption of undue influence. Following an appeal, we reversed and remanded on the grounds that the chancellor failed to shift the burden of proof to Boyd to prove that Lancaster was not unduly influenced once a confidential relationship was found. Lancaster v. Boyd, 803 So.2d 1285 (Miss.Ct.App. 2002).

¶ 10. On remand, the chancellor considered the three factors enumerated in Will of McCaffrey v. Fortenberry, 592 So.2d 52 (Miss.1991), to ascertain whether the presumption of undue influence was overcome. After considering these factors, the chancellor determined that Boyd had overcome the presumption of undue influence. ANALYSIS

I. WHETHER THE CHANCELLOR ERRED IN FINDING THAT BOYD HAD OVERCOME THE PRESUMPTION OF UNDUE INFLUENCE

¶ 11. All parties agree that a confidential relationship existed between Boyd and Lancaster. Once it is determined that a confidential relationship exists in an inter vivos transaction, a rebutta-ble presumption of undue influence arises automatically. This presumption is rebut-table by clear and convincing evidence. Madden v. Rhodes, 626 So.2d 608, 619 (Miss.1993). In determining whether a presumption of undue influence has been rebutted, courts apply the three-prong test set forth in Will of McCaffrey v. Fortenberry, 592 So.2d 52 (Miss.1991). The three prongs are (1) that the grantee/beneficiary acted in good faith; (2) that the grantor had full knowledge and deliberation of his actions and the consequences of those actions; and (3) that the grantor exhibited independent consent and action. Id. at 60. See also Murray v. Laird, 446 So.2d 575, 578 (Miss.1984).

Good Faith

¶ 12. The Mississippi Supreme Court outlined five factors to consider in determining whether the grantee acted in good faith. These factors are (1) determination of the identity of the initiating party in seeking preparation of the instrument; (2) the place of the execution of the instrument and in whose presence; (3) the consideration and fees paid, if any; (4) by whom paid; and (5) the secrecy and openness of the execution of the instrument. Murray, 446 So.2d at 578.

¶ 13. All evidence showed that the execution of the warranty deed was prepared at Lancaster’s request. There was no evidence that Lancaster ever intended to convey his property to his children or to anyone other than Boyd. Boyd testified that Lancaster had been discussing this conveyance for two or three years prior to the transaction. A chancellor is allowed to consider the testimony of the beneficiary in deciding whether the presumption of undue influence is rebutted. Arnold v. Dubose, 740 So.2d 979, 988 (¶ 44) (Miss.Ct.App.1999). Lancaster’s children offered no evidence rebutting or refuting Boyd’s testimony. In Fortenberry, the supreme court explained:

While the appellants argue that Forten-berry’s testimony is laced with self serving statements, we also note that nothing was offered by the appellants at trial to discredit the explanations which were furnished. While the burden is upon the “accused” to rebut the presumption of undue influence, once the alleged influ-encer has had his turn at bat, the ball then bounces back to the “accusers” for rebuttal.

Fortenberry, 592 So.2d at 62.

¶ 14. The deed conveying the property to Boyd was executed at Boyd’s home. However, as noted by the chancellor, the deed was executed at a place where Lancaster was convalescing, and it is logical that a bedridden person with a broken hip would execute a deed in the place where he was recuperating. All of Lancaster’s children were aware of, and approved, Lancaster’s living arrangement with Boyd.

¶ 15. Sammy Ainsworth, the person who witnessed the execution of the deed and notarized the deed, testified that Lancaster knew and appreciated what he was doing. Ainsworth further testified that he had no recollection that Boyd was coercing Lancaster to sign the deed. Finally, Ains-worth testified that he would not have notarized Lancaster’s signature if he believed Lancaster did not know what he was doing or appeared to be under the influence of drugs.

¶ 16. Boyd let Lancaster’s children visit their father any time they wished. Lancaster’s son Ernest testified that each of Lancaster’s children would go to Boyd’s house whenever they got off work and would stay with their father until late at night to take care of him. One of Lancaster’s daughters spent the night at Boyd’s house the night after the deed was executed. The deed was recorded on January 12,1998, in the land records of the office of the Chancery Clerk of Yazoo County, Mississippi. Therefore, the deed was recorded before Lancaster’s death. There is no evidence that the deed was executed in secrecy.

Grantor’s Knowledge of His Actions

¶ 17. Three witnesses testified that Lancaster knew what he was doing when he signed the deed. Ainsworth, the witness who notarized the deed, testified that Lancaster knew what he was doing when he signed the deed. Cynthia Luby evaluated Lancaster on the day the deed was executed. She testified that he was alert, appeared to understand her questions, and gave coherent responses to her questions. While some of Lancaster’s medications warned to avoid activity requiring alertness, Luby stated that Lancaster did not appear to be abusing his medication and was not sleepy or drowsy when she evaluated him. Aony Porter, who worked at Boyd’s convenience store for seven years, testified that she visited Lancaster at Boyd’s home. When asked if Lancaster would know what he was doing if he signed the deed, Porter stated, “If he signed it, he did.” In describing Lancaster’s mental capacity and susceptibility to being unduly influenced, she stated, “Mr. Ernest was sharp as a tack. He always was. He was on top of it. Mr. Ernest was sharp right up until the end.”

¶ 18. Lancaster and Boyd were close personal friends for more than twenty years. Lancaster lived on Boyd’s property rent-free, and the finances of the two men were commingled to such an extent that Boyd was on Lancaster’s checking account and Lancaster had signatory authority on Boyd’s store account. When Lancaster was released from the hospital, it was his preference to recuperate at Boyd’s home. Given these facts, it was understandable that Lancaster would wish to convey the property to Boyd. Wfliile this Court has a duty to prevent a conveyance that was a product of undue influence, it has an equal duty to uphold the intent of a person who is now deceased. Estate of McRae, 522 So.2d 731, 740 (Miss.1988).

Independent Consent and Action

¶ 19. Lancaster had been discussing conveying the property to Boyd for a period of two or three years. Ainsworth, Luby, and Porter all testified that Lancaster knew and appreciated the consequences of his actions. In addition, Lancaster’s children testified that Lancaster had the capacity to make his own decisions, including the decision to move to Boyd’s house. Lancaster’s daughter Elaine Stevens testified as follows:

Q: All right. When he [Lancaster] was released from [the] VA and went to Bob’s [Boyd’s] house in December of 1997, do you know whose choice that was?
A: Well, I think he did decide he wanted to do that. But, you know, because we thought that — Bob had wanted him to go down there, but also daddy [Lancaster] doesn’t like a lot of noise and stuff.
Q: It was his decision to go to Bob’s when he was released from the hospital?
A. Well, we kind of helped on the decision too, you know.

¶20. Boyd testified that the steps he took in helping to effect the deed transfer were at the instruction of Lancaster. Boyd testified that Lancaster instructed him to obtain a legal description of the property from the Yazoo County courthouse. This testimony was uncontradict-ed.

Conclusion

¶ 21. The chancellor considered each of the three factors as outlined in Fortenber-ry in deciding that Boyd had proven by clear and convincing evidence that the presumption of undue influence was overcome. We find that the chancellor’s conclusion was supported by the record.

II. WHETHER LANCASTER WAS COMPETENT TO EXECUTE THE PROPERTY TRANSFER

¶ 22. The burden of proving lack of. mental capacity rests upon the party asserting it, because the law presumes that a properly executed deed was executed by a person with such mental capacity to execute such a deed. Richardson v. Langley, 426 So.2d 780, 783 (Miss.1983). Clear and convincing evidence is necessary to establish this lack of mental capacity. Id. To set aside the deed, the court must find that the grantor suffered a weakness of intellect, plus another factor such as grossly inadequate consideration. Id.

¶ 23. Lancaster’s children claim that their father lacked the capacity to execute the deed because the confidential relationship with Boyd,' the pain he was experiencing after the surgery, and the narcotic drugs caused Lancaster to suffer a weakness of intellect. However, three witnesses who observed and evaluated Lancaster after his surgery testified that he was alert and knowledgeable. Lancaster’s children did not present any proof that the medication their father was taking caused a defect of mind. The chancellor was correct in her finding that Lancaster was competent to execute the deed.

III. WHETHER THE DEED SHOULD BE SET ASIDE FOR LACK OF CONSIDERATION

¶ 24. Where the instrument in controversy contains a statement or recital of consideration, it creates a rebuttable presumption that consideration actually existed. Daniel v. Snowdoun Ass’n, 513 So.2d 946, 950 (Miss.1987). The rebuttal must be made by a clear preponderance of the evidence. Id. The subject deed begins with the words, “For and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, receipt thereof is acknowledged.”

¶ 25. The chancellor focused on the “other good and valuable consideration” given for the deed. Lancaster and Boyd were close friends for many years, and during Lancaster’s illness, Boyd readily accepted him into his home and became his primary caregiver. Under Mississippi law, love and affection is valid consideration. Holmes v. O’Bryant, 741 So.2d 366, 370 (¶ 19) (Miss.Ct.App.1999). “A man of sound mind may execute a will or a deed from any sort of motive' satisfactory to him, whether that motive be love, affection, gratitude, partiality, prejudice, or even a whim or caprice.” Herrington v. Herrington, 232 Miss. 244, 250-51, 98 So.2d 646, 649 (1957). There was adequate consideration for conveyance of the deed.

¶ 26. THE JUDGMENT OF THE CHANCERY COURT OF YAZOO COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE AND MYERS P.JJ., BRIDGES, GRIFFIS, BARNES, ISHEE, CONCUR. IRVING, J., CONCURS IN RESULT ONLY. KING, C.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


text:
    The ESTATE OF Vader I. PERRY by and through Betty RAYBURN, Administratrix of the Estate of Vader I. Perry, for the Benefit of the Estate of Vader I. Perry, and for the use and benefit of the wrongful death beneficiaries of Vader I. Perry, Appellant v. MARINER HEALTH CARE, INC. f/k/a Mariner Post-Acute Network, Inc.; National Heritage Realty, Inc.; Grancare, Inc.; and Evergreen Healthcare, Inc., Appellees.
    No. 2004-CA-00810-COA.
    Court of Appeals of Mississippi.
    Jan. 10, 2006.
    Rehearing Denied May 2, 2006.

      Kenneth Luke Connor, Brian Lee Thompson, E.B. Chiles, Richard Eric Cir-ceo, attorneys for appellant.
    Denise Wesley, Jackson, L. Carl Hag-wood, Greenville, Michael 0. Gwin, Jackson, J. Collins Wohner, Senith C. Tipton,Jackson, William W. McKinley, attorneys for appellees.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On November 30, 1999, Vader Perry, a seventy-four year old woman, was admitted to the Grenada Health and Rehabilitation Center (nursing home) by her physician for rehabilitation services after a hospitalization. Perry arrived at the nursing home in poor health and, on February 27, 2000, she passed away.

¶ 2. On November 30, 2001, Perry’s estate, by and through her daughter, Betty Rayburn, administratrix of Perry’s estate, for the use and benefit of the estate of Perry, and for the use and benefit of the wrongful death beneficiaries of Perry, filed a complaint in the Grenada County Circuit Court against Mariner Health Care, Inc. (formerly known as Mariner Post-Acute Network, Inc.); National Heritage Realty, Inc.; Graneare, Inc.; Evergreen Healthcare, Inc.; J.D. Lee; and Delores Goode. Rayburn’s complaint alleged negligence, medical malpractice, gross negligence, fraud and breach of fiduciary duty. Rayburn also pleaded claims for wrongful death and survival and requested compensatory and punitive damages.

¶ 3. Prior to trial, Goode filed a motion to dismiss. The trial court granted Goode’s motion to dismiss on June 27, 2003, but gave Rayburn thirty days to amend her complaint against Goode to assert with specificity any allegations of individual wrongdoing by Goode. According to the record, Rayburn never filed an amended complaint.

¶4. In January 2000, Mariner Posb-Acute Network, Inc., filed for Chapter 11 bankruptcy protection. In April 2002, an order was entered by the bankruptcy court confirming Mariner’s reorganization plan. Incorporated in the order was a stipulation exempting certain actions from the bankruptcy court’s discharge. One action exempted from the discharge was styled, “The Estate of Vader I. Perry by and through Betty Rayburn, Administratrix.”

¶ 5. Prior to trial, Mariner filed a motion in limine to bar Rayburn from pursuing the wrongful death claim, arguing that because the wrongful death beneficiaries were not mentioned in the bankruptcy stipulation, their claims were discharged. The trial court agreed and precluded Rayburn’s wrongful death claim on behalf of the wrongful death beneficiaries.

¶ 6. On December 18, 2003, after a trial on the merits, the jury returned a verdict for Mariner. The trial court subsequently ordered Rayburn’s claim be dismissed with prejudice. Rayburn then filed a motion for a new trial or, in the alternative, for judgment notwithstanding the verdict. The trial court denied the motion and Rayburn appealed to this Court. On appeal, Rayburn argues the following: (1) the trial court erred in granting Goode’s Rule 12(b)(6) motion to dismiss; (2) the trial court erroneously instructed the jury on the standard for negligence; (3) the trial court erred in dismissing Rayburn’s wrongful death claim; (4) the trial court improperly shifted the burden of proof on spoliation to Rayburn and erred by not instructing the jury on Mariner’s failure to produce portions of Perry’s nursing home care plan; and (5) the trial court abused its discretion in admitting evidence regarding Perry’s past drug and alcohol abuse and evidence suggesting that Rayburn stole Social Security funds.

DISCUSSION

I. DID THE TRIAL COURT ERR IN GRANTING GOODE’S RULE 12(B)(6) MOTION TO DISMISS?

¶ 7. In her first issue on appeal, Rayburn argues that the trial court erred in dismissing her claims against Goode. This Court employs a de novo standard of review in determining whether a lower court erred in granting or denying a motion to dismiss. Cook v. Brown, 909 So.2d 1075, 1078(¶ 8) (Miss.2005). We note, however, that Rayburn had the opportunity to amend her complaint against Goode in order to, according to the trial court, “assert with specificity any allegations of individual wrongdoing by the administrator Defendant that would result in personal liability.” Rayburn failed to file an amended complaint even though she had ample opportunity to do so. We fail to find any merit with this issue as Rayburn had the opportunity, prior to trial, to dispose of this matter, either through amending her complaint or even filing an interlocutory appeal. Upon review of the'record, we can find no error in the trial court’s ruling.

¶ 8. Mariner argues correctly that Rayburn also failed to include Goode’s name on her notice of appeal. According to Mississippi Rule of Appellate Procedure 3(c), “[t]he notice of appeal shall specify the party or parties taking the appeal and the party or parties against whom the appeal is taken, and shall designate as a whole or in part the judgment or order appealed from.” Pursuant to Rule 3(c), our review is limited to those parties named in an appellant’s notice of appeal.

II. DID THE TRIAL COURT ERRONEOUSLY INSTRUCT THE JURY ON THE STANDARD FOR NEGLIGENCE?

¶ 9. In her second issue on appeal, Rayburn argues that the trial court erroneously instructed the jury on the standard for negligence. Our standard of review for jury instructions is as follows:

[T]he instructions are to be read together as a whole, with no one instruction to be read alone or taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case. However, the trial judge may also properly refuse the instructions if he finds them to incorrectly state the law or to repeat a theory fairly covered in another instruction or to be without proper foundation in the evidence of the case.

Howell v. State, 860 So.2d 704, 761 (¶ 203) (Miss.2003). Where a party fails to make a contemporaneous objection to a proposed jury instruction so that the trial court has an opportunity to cure the defect, we are procedurally barred from considering arguments that the trial court erred in submitting the instruction. Haggerty v. Foster, 838 So.2d 948, 954(¶8) (Miss.2002). Thus, failure to object constitutes a waiver of that assertion on appeal. Id.

¶ 10. In her argument on this issue, Rayburn asserts numerous objections to jury instruction 2, which states as follows:

Negligence on the part of the nursing home would be the failure, if any, of its staff to possess and exercise that degree of care, diligence, and skill as is ordinarily possessed and exercised by minimally competent and reasonably diligent, skillful, careful and prudent staff of nursing homes throughout the United States, who have available to them the same general facilities, services, equipment and options as were available at Grenada Health & Rehabilitation Center in Grenada, Mississippi during the period in question.
A nursing home charged with negligence in the care and treatment of its resident may not be judged by hindsight. Defendant may be held liable for care and treatment rendered to the Plaintiff only if the judgment that its employees exercised under the existing circumstances fell below the minimally accepted level of care for the staff in a nursing home.
Unless you believe from a preponderance or greater weight of the evidence that the Plaintiff has proven that Defendant’s staff failed to exercise such standard of reasonable and ordinary care, skill and diligence as minimally competent nursing home staff would ordinarily exercise in such cases and that such failure, if any, proximately caused an injury to Vader Perry, then your verdict must be for the Defendant.

However, the only contemporaneous objection on the record made by Rayburn concerns Rayburn’s claim that the professional malpractice standard was improper because the trial court had dismissed the medical malpractice claim prior to trial. We are not persuaded by her argument as standard of care instructions have been approved in comparable cases. See McMillan v. King, 557 So.2d 519, 522 (Miss.1990). Furthermore, during trial, Rayburn questioned a number of witnesses on the nursing home’s standard of care. Taken as a whole, we find that the instructions fairly announce the law of the case; thus, we find no merit to this issue.

III. DID THE TRIAL COURT ERR IN DISMISSING RAYBURN’S WRONGFUL DEATH CLAIM?

¶ 11. In her third issue on appeal, Rayburn argues that the trial court erred in dismissing her wrongful death claim. Specifically, Rayburn’s sole and brief contention is that she, as the personal representative, is entitled to pursue the wrongful death claim and that she was expressly named in the bankruptcy stipulation. This contention is true as the wrongful death statute specifically states that the action may be brought in the name of the personal representative “for the benefit of all persons entitled under the law to recover.” See Miss.Code Ann. § 11-7-13 (Rev.2004). However, the crux of the issue concerns the stipulation which Rayburn’s attorneys entered into on behalf of a number of their tort claimants. The stipulation only excepts “The Estate of Vader I. Perry by and through Betty Rayburn, Administra-trix” from the effect of the bankruptcy proceeding. Nowhere in this stipulation is an exception “for the use and benefit of the wrongful death beneficiaries of Vader I. Perry.” We note that a number of the other stipulations in the bankruptcy order include claims specifically stating that they were brought for the use and benefit of the wrongful death beneficiaries, or other language to that effect.

¶ 12. During the hearing on the motion in limine concerning this stipulation the trial court found that the wrongful death beneficiaries were not named in the stipulation. The trial court stated, “In my view, if the wrongful death beneficiaries had been intended to be included in this stipulation, they would have been. And for whatever reason, they were not. And again, I take note of the fact that there were plenty of other cases in [the stipulation] where the wrongful death beneficiaries were included. And this is one of those cases where they were not....” In fact, at one point the trial court paraphrased Mariner’s argument that there was no exception made in the bankruptcy court for the wrongful death beneficiaries, to which Rayburn’s attorney responded, “Well, that’s understood, Judge. And I agree that that was the case.” We can find no error; thus, this issue is without merit.

IV. DID THE TRIAL COURT ERR IN SHIFTING THE BURDEN OF PROOF ON SPOLIATION TO RAYBURN?

¶ 13. In her fourth issue on appeal, Rayburn argues that the trial court erred in shifting the burden of proof on spoliation to her and in not instructing the jury on Mariner’s failure to produce portions of Perry’s nursing home care plan. Rayburn contends that the specific portion of the care plan not produced at trial addressed the treatment of pressure sores. We first note that Rayburn did not offer a spoliation instruction for the trial court to review, rather she asked the trial court, only after all the jury instructions were ruled upon, to issue an instruction. Furthermore, it is unclear from Rayburn’s brief what specific pages are missing from the documents. Rayburn implies that because the care plan concerning the treatment of pressures sores was missing, then we can infer that Mariner failed to treat her pressure sores properly, if at all. However, according to the record, that is clearly not the case.

¶ 14. In Stahl v. Wal-Mart Stores, Inc., the court held that “in the absence of bad faith — i.e., evidence of culpability on the part of the spoliator — then there can be no adverse influence or presumption ... even when there is prejudice to the innocent party.” Stahl v. Wal-Mart Stores, Inc., 47 F.Supp.2d 783, 787 n. 3 (S.D.Miss.1998). The supreme court has further held that “it is a general rule that the intentional spoliation or destruction of evidence relevant to a case raises a presumption, or, more properly, an inference, that this evidence would have been unfavorable to the case of the spoliator.” Tolbert v. State, 511 So.2d 1368, 1372-73 (Miss.1987) (quoting Washington v. State, 478 So.2d 1028, 1032-33 (Miss.1985)). “Such a presumption or inference arises, however, only when the spoliation or destruction was intentional and indicates fraud and a desire to suppress the truth, and it does not rise where the destruction was a matter of routine with no fraudulent intent.” Id.

¶ 15. After listening to both sides argue the spoliation issue, the trial court stated the following: “I’m of the opinion there’s not been any showing that there was any misconduct or intent or fraudulent designs on the part of the nursing home or Grenada Health and Rehab to dispose of these records or intentionally lose them or do anything of that nature. And I’m going to deny any motion — any instruction or a motion to instruct the jury on the spoliation.” As Rayburn’s issue concerning spoliation was first presented to the trial court as a discovery motion which the court delayed ruling upon, the proper standard of review is abuse of discretion. Cole ex rel. Cole v. Buckner, 819 So.2d 527, 530(¶ 6) (Miss.2002). We can find no abuse of discretion in the trial court’s determination; thus, this issue is without merit.

V. DID THE TRIAL COURT ABUSE ITS DISCRETION IN ADMITTING EVIDENCE REGARDING PERRY’S PAST DRUG AND ALCOHOL ABUSE AND EVIDENCE SUGGESTING THAT RAYBURN STOLE SOCIAL SECURITY FUNDS?

¶ 16. In her final issue on appeal, Rayburn argues that the trial court abused its discretion in admitting evidence regarding Perry’s past drug and alcohol abuse and evidence suggesting that Rayburn stole Social Security funds. This Court employs an abuse of discretion standard in reviewing a lower court’s admission or exclusion of evidence. Tatum v. Barrentine, 797 So.2d 223, 230(¶ 12) (Miss.2001).

¶ 17. In determining whether to allow evidence of Perry’s past drug and alcohol abuse, the trial court found that her past -medical history was relevant to her treatment at the nursing home. Furthermore, Rayburn testified as to Perry’s past medical history on direct examination and her past drug and alcohol abuse on cross-examination without any further objection. We cannot find that the trial court abused its discretion in allowing testimony of Perry’s past medical history; thus this issue is without merit.

¶ 18. In regards to whether the trial court allowed evidence suggesting that Rayburn stole Social Security funds, the record fails to support this contention; thus, this issue is without merit.

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

KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR.


author: BARNES, J.,

text:
    Dennis F. DUHART a/k/a Dennis Felton Duhart, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KP-01168-COA.
    Court of Appeals of Mississippi.
    Jan. 24, 2006.
    Rehearing Denied May 2, 2006.

      Dennis Felton Duhart, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, for appellee.
   BARNES, J.,

for the Court.

¶ 1. Dennis Felton Duhart was tried and convicted in the Circuit Court of Lee County for uttering a forgery. From his conviction, Duhart timely appealed to this Court. Finding no error in the proceedings below, we affirm Duhart’s conviction.

SUMMARY OF FACTS

¶ 2. On March 3, 2000, someone stole a blank paycheck from North Mississippi Sheet Metal in Pontotoc, Mississippi, made the check out to “John Brown” in the amount of $545, and, on March 7, cashed the check at Wright’s Short Stop, a convenience store in Tupelo. On August 1, 2000, Dennis Duhart, an employee of North Mississippi Sheet Metal, was indicted for uttering a forgery in violation of section 97-21-59 of the Mississippi Code Annotated (Rev.2000). Duhart was subsequently tried and convicted of the crime, and was sentenced to fifteen years in the custody of the Mississippi Department of Corrections.

¶3. At trial, Patrick Wright, the clerk who cashed the check, identified Duhart as the person who passed the check. He stated that he recognized Duhart as a regular customer, and that he had also cashed a check for Duhart on March 6, 2000, the day before the crime in question occurred. Additionally, the prosecution offered evidence of Wright’s pre-trial identification of Duhart. Officer Rob Edwards of the Tu-pelo Police Department testified that when he interviewed Wright about the incident, Wright recognized a photograph of Duhart in Edwards’s file and stated, “That’s him right there.” David Hendrix, who was employed by North Mississippi Sheet Metal at the time of the offense, testified that on March 3, 2000, he saw Duhart alone in the office in which the blank paychecks were kept. Further, Hendrix and fellow employee Margaret Boatwright testified that employees were not allowed in that office without permission. When Duhart took the stand, he testified that he had entered the office in order to use the telephone because the phone in a nearby room was out of order. Hendrix, however, testified that the telephone had been in perfect working order at the time.

PROCEDURAL HISTORY

¶ 4; Prior to his indictment, Duhart had been arrested for the crime and, on April 14, 2000, he was released on bond. After being released, Duhart fled to Ohio. When Duhart failed to appear in the Lee County Circuit Court on the forgery charge and upon a separate charge of grand larceny, the State of Mississippi issued a fugitive warrant for his arrest. Duhart was arrested and detained by Ohio authorities, and was scheduled for an identification hearing on November 26, 2001. When, after several notices, Mississippi officials failed to appear at Duhart’s proceedings, the Lucas County (Ohio) Court of Common Pleas dismissed the fugitive warrant and, on April 18, 2002, released Duhart from custody. It appears that at some point in May of 2002, a bail bondsman retrieved Duhart from Ohio and delivered him to Lee County authorities.

¶ 5. Upon being returned to Mississippi, Duhart was incarcerated in the Lee County Jail pending the outcome of his trial. On February 24, 2003, Duhart filed a petition for habeas corpus in which he asserted that he had been improperly extradited from Ohio and that, as a result, his confinement was illegal. Along with his ha-beas petition, Duhart filed a motion requesting a hearing on the issue; however, Duhart did not pursue the motion to a ruling prior to his trial. On May 8, 2003, Duhart was tried and convicted of uttering a forgery. At his sentencing hearing on May 23, 2003, Duhart was sentenced to fifteen years in the custody of the Mississippi Department of Corrections. At the same hearing, Duhart pled guilty to a charge of DUI maiming and was sentenced to fifteen years in the custody of the Mississippi Department of Corrections. The sentencing judge ordered that the sentences run concurrently.

¶ 6. On May 16, 2003, Duhart filed a motion for judgment notwithstanding the verdict (JNOV), or, in the alternative, a new trial. The motion was denied by the Lee County Circuit Court on September 1, 2004, nearly sixteen months after it was filed. Also on September 1, 2004, the circuit court dismissed as moot Duhart’s petition for habeas corpus. Duhart timely appealed to this Court, asserting the following: (1) that the court erred in dismissing his habeas petition; (2) that the trial court abused its discretion in failing to rule on his habeas petition and motion for JNOV in a timely manner; (3) that the court erred in denying his motion to suppress Patrick Wright’s pre-trial identification testimony; (4) that the verdict was against the overwhelming weight and sufficiency of the evidence; and (5) that the trial court erred in denying his motion for new trial in light of newly discovered evidence. Finding these issues to be without merit, we affirm Duhart’s conviction.

ISSUES AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN DISMISSING DUHART’S HABEAS PETITION.

II. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO RULE UPON DU-HART’S HABEAS PETITION AND MOTION FOR JNOV, OR, IN THE ALTERNATIVE, A NEW TRIAL, IN A TIMELY MANNER.

¶ 7. The Mississippi Supreme Court has repeatedly held that it is the movant’s responsibility to obtain a ruling from the court on motions, and that failure to do so constitutes a waiver. See, e.g., Byrom v. State, 863 So.2d 836, 851(¶ 27) (Miss.2003); see also URCCC 2.04 (“It is the duty of the movant ... to pursue said motion to hearing and decision by the court. Failure to pursue a pretrial motion to hearing and decision before trial is deemed an abandonment of that motion ... ”). The record before this Court does not show that Du-hart acted diligently in pursuing his habe-as petition and motion for preliminary hearing to decision. In fact, in his order dismissing Duhart’s habeas petition as moot, the trial judge noted that instead of setting the petition and motion for hearing and obtaining a ruling, Duhart and his counsel made the decision to go to trial on the forgery charge.

¶ 8. After closing his case in chief, Du-hart raised the issue of the allegedly improper extradition, asserting that he had been “taken into custody by the Lee County Sheriffs Office and transported back to the State of Mississippi.” When the assistant district attorney responded that Du-hart had been returned to Mississippi by a bail bondsman rather than by the State, Duhart offered no argument or evidence in reply. He presented no evidence to support his claim that he had been improperly extradited, and failed to request a ruling on his petition. Additionally, though the record shows that defense counsel raised the issue of the motion for preliminary hearing, he again failed to pursue the motion to a ruling. Because the record shows that Duhart did not diligently pursue his habeas petition and motion for preliminary hearing to ruling, the motions are deemed waived. Id. Because the motions were waived, we find no error in the trial court’s dismissal of Duhart’s habeas petition.

¶ 9. Duhart also asserts that the trial court abused its discretion in failing to rule upon his motion for JNOV, or, in the alternative,' a new trial, in a timely manner. Again, however, the record is absent of any indication that Duhart diligently pursued the motion to hearing. In Dyer v. State, 300 So.2d 788, 789 (Miss.1974), the Mississippi Supreme Court stated:

A trial judge is not charged with knowledge of every paper filed with the court clerk. It is not the duty of the judge, ex mero motu, to search out and bring up such matters. On the other hand, the affirmative duty rests upon a party filing a motion to follow up this action by bringing it to the attention of the judge and by requesting a hearing upon it.

It was Duhart’s duty to bring the motion to the attention of the circuit court, and the record does not show that he was diligent in his efforts. We cannot hold the circuit court in error for Duhart’s failures. See id.

III. WHETHER THE TRIAL COURT ERRED IN DENYING DU-HART’S MOTION TO SUPPRESS PATRICK WRIGHT’S PRE-TRIAL AND IN-COURT IDENTIFICATION TESTIMONY.

¶ 10. Approximately one week pri- or to trial, Duhart filed a motion to suppress the pre-trial and in-court identification of him by Patrick Wright, alleging that the identification testified to by Officer Edwards was impermissibly suggestive and that Wright’s subsequent in-court identification was tainted as a result and should not be admitted. At trial, the court heard argument on the motion and determined that it would allow Wright’s identification testimony. Duhart asserts on appeal that the trial court erred in denying the motion to suppress.

¶ 11. The admission of evidence rests within the discretion of the trial court. Martin v. State, 872 So.2d 713, 721 (¶ 25) (Miss.Ct.App.2004). “When determining whether to suppress evidence of a pre-trial identification, the trial court must resolve whether the identification procedure used by law enforcement was unnecessarily suggestive.” Cochran v. State, 913 So.2d 371, 376(¶ 17) (Miss.Ct.App.2005). A trial court’s finding that a pre-trial identification procedure was im-permissibly suggestive does not preclude the introduction of the identification evidence. Thompson v. State, 726 So.2d 233, 235(¶ 9) (Miss.Ct.App.1998). In determining whether an in-court identification would result in a substantial likelihood of irreparable misidentification, the following factors must be considered: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Id. at (¶ 10) (citing Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)).

¶ 12. At trial, Wright testified that when Officer Edwards — who had been assigned to investigate the case — made the initial visit to the store to interview him, “[Officer Edwards] was sitting down, had a folder with him, and as we were talking, he opened the folder and was flipping through the folder, and I happened to see a photograph and I identified [Duhart] at that time [as] the person that cashed the check.” The photograph in question showed Duhart in prison garb with the words “Lee County Jail” at the top. In determining whether the identification testimony should be allowed, the trial court addressed each of the five Biggers factors in depth. The court found (1) that Wright had ample time to observe Duhart at the time of the crime, as he personally cashed Duhart’s check; (2) that Wright’s testimony showed that he had been attentive at the time Duhart passed the instrument; (3) that Wright’s prior description of Du-hart was not particularly strong, but was not weak enough to militate against admitting the identification; (4) that Wright did not waver in his in-court identification of Duhart as the culprit; and (5) that the length of time between the crime and Wright’s initial identification had been short. It is clear from the record that the trial court considered the necessary factors and made a well-founded decision. Therefore, we find that the trial court did not abuse its discretion in denying Du-hart’s motion to suppress Wright’s identification testimony.

IV. WHETHER THE VERDICT WAS AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

¶ 13. When reviewing the denial of a motion for new trial based on an objection to the weight of the evidence, this Court will only reverse a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Bush v. State, 895 So.2d 836, 844(¶18) (Miss.2005). In making our determination, this Court is required to view the evidence in the light most favorable to the verdict; we will grant a new trial “only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. However, in considering whether the evidence is legally sufficient to sustain a conviction in the face of a motion for JNOV, our inquiry is “whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed.’ ” Id. at 843(¶ 16) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). The critical question in dealing with such an issue 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.” Id. (emphasis added). We will deem the evidence sufficient if the evidence against the defendant is such that “reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense.” Id.

¶ 14. Section 97-21-59 of the Mississippi Code Annotated (Rev.2000) states that:

Every person who shall be convicted of having uttered or published as true, and with intent to defraud, any forged, altered, or counterfeit instrument, or any counterfeit gold or silver coin, the forgery, altering, or counterfeiting of which is declared by the provisions of this chapter to be an offense, knowing such instrument or coin to be forged, altered, or counterfeited, shall suffer the punishment herein provided for forgery.

¶ 15. It is clear from the plain text of the statute that in order to sustain a conviction of uttering forgery, the State must have proved beyond a reasonable doubt (1) that the defendant published or uttered as true (2) a forged, altered, or counterfeit instrument, (8) knowing the instrument to be forged, altered, or counterfeited, (4) with the intent to defraud. Miss.Code Ann. § 97-21-59; see also Coward v. State, 228 Miss. 538, 546-47, 78 So.2d 605, 608 (1955) (reciting elements of crime).

¶ 16. The State put forth sufficient evidence to prove each of the four elements. As to the first element, Patrick Wright testified that it was Duhart who passed the check to Wright’s Short Stop for cashing. Secondly, Margaret Boat-wright testified that she was certain that

the instrument was forged. She testified that North Mississippi Sheet Metal always printed its checks via computer, and that the check passed by Duhart contained crooked text and appeared to have been filled out via typewriter. Boatwright stated that the check in question had not been issued in the ordinary course of business by the company. In regard to the third element, the evidence, taken in its entirety, shows that Duhart knew that the check was forged. The State presented evidence that Duhart took the blank cheek from his employer and filled it out using a typewriter. That Duhart knew the check to be forged is a reasonable inference from this evidence. Lastly, as to the question of intent, if Duhart made the utterance with knowledge of-the forgery, this necessarily means that he did so with intent to defraud. See Coward, 223 Miss. at 546-47, 78 So.2d at 609. Viewing the evidence in the light most favorable to the prosecution, it is evident that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

¶ 17. Furthermore, though Duhart claims that the verdict was against the overwhelming weight of the evidence, the record makes it clear that the evidence against him was substantial. Considering the evidence of Duhart’s guilt in the light most favorable to the verdict, we cannot find that the evidence preponderates against the verdict in any way.

¶ 18. Duhart’s assignment of error is without merit.

V. WHETHER THE TRIAL JUDGE ERRED IN DENYING DUHART’S MOTION FOR NEW TRIAL IN LIGHT OF THE NEW TIME CARD EVIDENCE.

¶ 19. Duhart contends that the trial court abused its discretion in not granting a new trial based upon the discovery of handwritten time sheets showing that Duhart worked a full eight hours on March 6, 2000. He claims that this evidence undermines Patrick Wright’s testimony that he recognized Duhart on March 7 because he had cashed a check for Du-hart the day before.

¶ 20. “Newly discovered evidence warrants a new trial if the evidence will probably produce a different result or verdict; further, the proponent must show that the evidence ‘has been discovered since the trial, that it could not have been discovered before the trial by the exercise of due diligence, that it is material to the issue, and that it is not merely cumulative, or impeaching.’ ” Ormond v. State, 599 So.2d 951, 962 (Miss.1992) (quoting Smith v. State, 492 So.2d 260, 263 (Miss.1986)) (emphasis added). If these requirements are met, we may overrule a trial court and grant a new trial based upon the newly discovered evidence. Little v. State, 736 So.2d 486, 489-90(¶ 15) (Miss.Ct.App.1999).

¶ 21. In the case at hand, it is not at all clear that the new evidence would probably produce a different result or verdict. While the handwritten time sheets corroborate Duhart’s contention that he was not in Tupelo on March 6, the time sheets do not necessarily prove Duhart’s version of the story. Because of the short distance between Pontotoc and Tupelo, it is still quite feasible that Duhart traveled to Tu-pelo during his lunch break to cash a check at Wright’s Short Stop on March 6, 2000. Furthermore, Duhart has failed to show that he acted with due diligence in discovering the time sheet evidence. In his motion for new trial, Duhart conceded that even though there had been a minute possibility of discovering the time sheets, he opted to proceed to trial instead of seeking a continuance. Importantly, Duhart did not contend that he could not have obtained the time sheets through the exercise of due diligence. Accordingly, the circuit judge did not abuse his discretion in denying Duhart’s motion for JNOV, or in the alternative, a new trial. This issue is without merit.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY OF CONVICTION OF UTTERING FORGERY AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, TO RUN CONCURRENTLY WITH SENTENCE IN LEE COUNTY CR00-639(G)L, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

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

      . The transcript of Duhart’s sentencing hearing reveals that the circuit court also ordered Duhart to pay $545 in restitution to Wright's Short Stop. However, the sentencing order does not contain any reference to restitution. The circuit court, however, has the inherent power to correct the sentencing order to make the order correspond with the judgment actually rendered. See Kitchens v. State, 253 Miss. 734, 737, 179 So.2d 13, 14 (1965); Harvey v. State, 919 So.2d 282 (¶ 14) (Miss.Ct. App.2005).

      . It is not clear from the record exactly who retrieved Duhart from Ohio. This matter will be discussed further infra.

      . Additionally, Duhart asserts that his guilty plea in the DUI maiming case was not knowing and voluntary, and that he received ineffective assistance of counsel at his plea hearing. However, because this is a direct appeal from Duhart's conviction of uttering a for-geiy, these issues are not properly before this Court. Duhart may raise these issues in a motion for post-conviction relief, if he has not already done so.